Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 10041-42 OF 2010
M/s Rohini Traders .... Appellant(s)
Versus
M/s J.K. Lakshmi Cement Ltd. .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) These appeals have been filed against the orders dated
07.11.2008 and 16.12.2008 passed by the High Court of Delhi at
New Delhi in RFA No. 406 of 2007 and R.P. No. 415 of 2008
respectively. Vide order dated 07.11.2008, the High Court allowed
the appeal filed by M/s J.K. Lakshmi Cement Ltd. -respondent herein
and set aside the judgment and decree dated 14.03.2007, passed by
the Additional District Judge, Delhi in Suit No. 125 of 2004, while
restoring the suit filed by M/s Rohini Traders - appellant herein for
Signature Not Verified
trial afresh as per the observations made in the judgment.
Digitally signed by
Mahabir Singh
Date: 2015.02.03
16:41:30 IST
Reason:
Brief Facts
2) (a) The appellant claims itself to be a sole proprietorship concern
2
working as third party commission agent of the
respondent-Company. The appellant claimed a sum of Rs.
12,05,231/- as dues to be payable by the respondent-Company as on
31.03.2004. Several requests were made to the respondent-Company
to pay the amount due but to no effect. Even after serving a legal
notice dated 09.04.2004 to the respondent-Company, it remained
un-complied with. The appellant filed a suit praying for decree of Rs.
14,21,250/- including the principal amount as also interest at the
rate of 18 per cent per annum. The suit was contested by the
respondent-Company on the ground that it was barred by limitation
as also on merits. The claim of the appellant was denied and it was
stated that as per the record of the respondent-Company, a sum of
Rs. 4,62,000/- is liable to be paid by the appellant to the
respondent-Company. Other claims made by the appellant were also
denied.
(b) During the pendency of the suit, the appellant served a notice
dated 05.07.2006 under Order XII Rule 8 of the Code of Civil
Procedure, 1908 (in short ‘the Code’) calling upon the
respondent-Company to produce and show to the Court on the first
date of hearing of the suit the following documents, viz.,
1. Purchase Orders pertaining to the order placed by the
plaintiff;
3
2. Original record of the TDS Certificate issued by the company
to the plaintiff;
3. Details of the payment made to the plaintiff;
4. Details of the payment received from the party whom order
was placed by the plaintiff;
5. Copy of the Ledger of the company related to the plaintiff
from the Financial Year 1997 to 2004; and
6. Copies of the Balance Sheets filed in the Income Tax
Department and ROC for the years 1997 to 2004.
(c) It appears that the documents were not produced on the first date
of hearing. However, during the course of the hearing one Shri R.K.
Gupta, General Manager of the respondent-Company (DW-1)
appeared before the Court and produced the documents mentioned
at Item Nos. 3-6 and also stated that Item Nos. 1 and 2 would be
available with the appellant. The appellant did not make any
endeavor to get the documents produced by the respondent-Company
on record and to mark them and exhibited.
(d) The trial Court, vide judgment dated 14.03.2007, decreed the
suit in favour of the appellant herein for a sum of Rs. 14,21,250/-
along with the interest at the rate of 9 per cent per annum from the
date of institution of the suit till the date of its realization. The trial
Court held that the respondent-Company had failed to explain as to
4
why it had not placed on record its books of accounts and other
related papers as asked for in the notice under Order XII Rule 8 of
the Code and drew an adverse inference.
(e) Feeling aggrieved, the respondent-Company preferred an appeal
before the High Court of Delhi.
(f) The High Court, after considering the material on record, came
to the finding that the witness of the respondent-Company (DW-1)
was cross-examined in support of the documents produced by him in
the Court pursuant to the notice under Order XII Rule 8 of the Code.
However, since the documents were neither exhibited nor brought on
record, the High Court felt it proper in the interest of justice to
restore the suit for further trial with certain directions.
(g) An application seeking review of the judgment and order dated
07.11.2008 was filed whereupon the High Court re-summoned the
trial Court record and re-perused the testimony of DW-1 from which
it gathered that the witness had brought all the documents
pertaining to the notice dated 05.07.2006 with respect to Item Nos.
3-6 and the other documents were with the appellant and the witness
was also cross examined in respect of the documents so produced.
The review application was, therefore, dismissed.
(h) Against the said orders, the appellant has preferred these
appeals before this Court.
5
3) Heard Shri Sunil Kumar, learned senior counsel for the
appellant and Shri M.L. Lahoty, learned counsel for the
respondent-Company.
Contentions:
4) Learned senior counsel for the appellant submitted that the
respondent-Company had not filed any document before the trial
Court in support of its claim made in the written statement. Further,
it had not complied with the notice dated 05.07.2006 under Order XII
Rule 8 of the Code requiring it to place certain documents before the
Court at the time of first date of hearing and, therefore, an adverse
inference ought to have been drawn and which was rightly drawn by
the trial Court. According to him, the High Court ought not to have
remanded the matter for fresh trial only on the ground that such
documents were produced before the Court by DW-1.
5) Learned senior counsel has relied upon a decision of the Lahore
High Court in Badri Parshad and Another vs. Shanti Lal Seth
and Others AIR 1941 Lahore 228 and submitted that the documents
so produced are to be given in evidence and must be admitted in toto .
He further relied on a decision of the Allahabad High Court in Union
of India vs. Firm Vishudh Ghee Vyopar Mandal AIR 1953 All. 689
wherein it was held that the provision of Order XII Rule 8 of the Code
6
refers to notice to produce documents at the time of the hearing, so
that if they are not produced, the party calling for them may give
secondary evidence of the same. According to him, as the
respondent-Company has failed to produce the documents mentioned
in the notice dated 05.07.2006 under Order XII Rule 8 of the Code,
the trial Court had rightly drawn an adverse inference and decreed
the suit on the basis of the evidence on record.
6) Learned counsel for the respondent-Company, however,
submitted that even though the respondent-Company had not filed
any document before the trial Court yet it produced the same before
the Court as asked for in the notice dated 05.07.2006 and DW-1 was
also cross-examined by the appellant. Therefore, the trial Court
ought not to have discarded the documents so produced by the
respondent-Company. The High Court had rightly remanded the
matter for fresh trial.
Discussion:
7) We have gone through the materials on record and find that
even though the respondent-Company had not brought on record any
document before the trial Court yet it had produced certain
documents mentioned at Item Nos. 3-6 in the notice dated
05.07.2006 and DW-1 was also cross-examined with regard to the
same. The relevant portion of the statement made by Shri R.K.
7
Gupta (DW-1) in the cross-examination is as under:-
“However, I have brought the documents required by the plaintiff in
terms of the notice dated 05.07.2006 vide Item Nos. 3 to 6 and the
record in terms of Item Nos. 1 and 2 of the said notice would be
available with the plaintiff.”
“I cannot say if payment to M/s Rohini Traders was being made on
transaction to transaction basis or consolidatedly. I have seen the
statement of account from which it is clear that payments have been
made both ways i.e., transaction to transaction as well as month to
month. It is correct that the last entry in the statement of account is
dated 30.04.2003. It is correct that till date we have not filed any
suit against the plaintiff for recovery.”
The claim of the appellant is that if the facts mentioned in the said
documents are taken into consideration, it may just be possible that
the claim of the appellant may not stand.
8) At this juncture, it is relevant to quote Order XII Rule 8 of the
Code which is as under:-
“ Notice to produce documents.— Notice to produce documents
shall be in Form No. 12 in Appendix C, with such variations as
circumstances may require. An affidavit of the pleader, or his clerk,
of the service of any notice to produce, and of the time when it was
served, with a copy of the notice to produce, shall in all cases be
sufficient evidence of the service of the notice, and of the time when
it was served.”
9) From a reading of the aforesaid provision as also the law settled
on this aspect, we are of the view that it was the duty of appellant
herein to get the documents produced by the respondent-Company
under Order XII Rule 8 of the Code exhibited in the suit proceedings
so that a true and correct finding either way could have been
recorded by the trial Court. It is not in dispute that the appellant did
not take any step to get those documents marked and exhibited
8
before the trial Court.
10) The object of Order XII Rule 8 of the Code is to facilitate the
plaintiff or any other party to get a document on record which is not
in their possession or in possession of the other party. If a document
has been produced then it is the duty of the party who has asked for
such production to get it placed on record. If, however, the said
document is not placed on record, then adverse inference against the
party who has produced the same cannot be drawn, more so, when
the party who has produced the said document before the Court has
been cross-examined vis-à-vis that document.
11) In our considered opinion, the High Court was right in setting
aside the judgment and decree passed by the trial Court and
remanding the matter for fresh decision. The directions given by the
High Court do not call for any interference.
12) In view of the above discussion, the appeals fail and are hereby
dismissed with no order as to costs.
...…………….………………………J.
(RANJAN GOGOI)
.…....…………………………………J.
(R.K. AGRAWAL)
NEW DELHI;
FEBRUARY 03, 2015.
9
ITEM NO.1A COURT NO.2 SECTION XIV
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 10041-10042/2010
M/S.ROHINI TRADERS Appellant(s)
VERSUS
M/S.J.K.LAKSHMI CEMENT LTD. Respondent(s)
(with appln. (s) for c/delay)
Date: 03/02/2015 These appeals were called on for
pronouncement of judgment today.
For Appellant(s) Mr. Parmanand Pandey,Adv.
For Respondent(s) Mr. Himanshu Shekhar,Adv.
Honble Mr. Justice R.K. Agrawal pronounced the judgment of
the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi and His
Lordship
In terms of the signed judgment, these appeals are dismissed:
“10) The object of Order XII Rule 8 of the Code is to facilitate
the plaintiff or any other party to get a document on record which
is not in their possession or in possession of the other party.
If a document has been produced then it is the duty of the party
who has asked for such production to get it placed on record. If,
however, the said document is not placed on record, then adverse
inference against the party who has produced the same cannot be
drawn, more so, when the party who has produced the said document
before the Court has been cross-examined vis-à-vis that document.
11) In our considered opinion, the High Court was right in
setting aside the judgment and decree passed by the trial Court
and remanding the matter for fresh decision. The directions given
by the High Court do not call for any interference.
12) In view of the above discussion, the appeals fail and are
hereby dismissed with no order as to costs.”
(MAHABIR SINGH) (VEENA KHERA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)