S.A.No.1425/2004. 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. SECOND APPEAL NO.1425 OF 2004. APPELLANTS: M/s Ujjawal Printers 1. Shri Uttamchand Fattichand Nahar, age 60 years, Occu: Business, R/at. D-5, Irani Market, Yerwada, Pune – 6. (Since deceased through his L.Rs.) 1-a) Pramila Uttamchand Nahar, age 72 years. 1-b) Bharat Uttamchand Nahar, age 42 years. All resident at D.5, Irani Market, Yerwada, Pune.6. 2. Shri Rajendra Uttamchand Nahar Since deceased through legal heir. 2a. Smt.Sunanda Rajendra Nahar, age 35 years. 2b. Mas. Pratik Rajendra Nagar, age 10 years. 2c. Kum.Preyanka Rajendra Nahar, age 12 years. All residing at R/at D-5,Irani Market, Yerwada, Pune – 6. S.A.No.1425/2004. 2 : VERSUS : RESPONDENT: Maharashtra State Board of Secondary, and Higher Secondary Education, Pune. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.P.B.Shah, Advocate for the appellants. Respondent and Advocate are absent. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: Smt.R.P.SondurBaldota,J DATED : 25th January, 2010. ORAL JUDGMENT: 1. This second appeal arises out of the order dated 7th September, 2004 by which, District Court, Pune allowed the first appeal filed by the respondent and dismissed the suit of the appellant. 2. Factual matrix of the case is as follows - The respondent had issued advertisement dated 4th October, 1986 calling for tenders for printing books of model question papers for standard XII for different subjects. The original appellants, who are in printing business, had submitted tender in response to the advertisement. Their tender was accepted on 20/21st October, 1986 and an agreement was executed setting out S.A.No.1425/2004. 3 terms and conditions of the tender. The terms and conditions specified the quality of paper, size of the paper, the quality of printing and the quality of binding of the books. The respondents by their letter dated 21st October, 1986 had fixed the schedule of the supplies to be made by the appellants. The terms and conditions provided for penalty of Rs.100/- per day for the delay in delivery of the books. The agreement as well as the letter dated 21st October, 1986 specifically required the respondent that the paper used for printing of the book should be according to the samples provided by the respondent. It further provided that the paper used for printing would be examined by the experts and if the paper used was found to be of quality inferior to the sample supplied by the respondents, reduction would be made in the payment of price. For the work carried out under the agreement, the appellants received payment from time to time. After deducting the amount received, by January, 1987, an amount of Rs.1,17,420.28 was outstanding against the respondent. 3. On 6/01/1987, the respondent had received complaint about quality of the printing work of the appellants which came to be S.A.No.1425/2004. 4 referred to the paper expert, Manager of Photo Zinco Press, Pune. The expert in his report dated 11th February, 1987 reported that the work of printing done by the appellant was of inferior quality. Ninety per cent of the paper used was inferior to the contracted paper. The length of the books was also shorter by one inch than the specifications in the tender. The printing standard of many pages was unsatisfactory and the binding was negligently done. In some of the books there were either blank pages or wrongly paged pages. There was also delay of 129 days in supplying the books, resulting into the penalty payable by the appellants of Rs.12,900/- . Further, by the expiry date of supplying of books for Sr.No.4 and 5, the appellants had not even begun the work of printing and as such the respondent was constrained to get the work done from M/s Mahaveer Press, Aurangabad and the supplies received between 5th January, 1987 and 9th January, 1987. The respondent, therefore, issued notice dated 15th of May, 1987 to the appellants pointing out the various breaches of the terms of tender and calling upon them to show cause as to why the balance amount of Rs.1,17,420.29 be not forfeited. The appellants sent their reply dated 23rd of June, 1987 baldly denying the allegations. Tender Committee of the S.A.No.1425/2004. 5 respondent in its meeting held on 26th June, 1987 considered the reply of the appellants and resolved to forfeit the balance amount payable to the appellants. The Executive Council of the respondent on 20th July, 1987 approved the action of the Tender Committee., Thereafter, the appellants filed the suit for recovery of amount of Rs.1,17,420/- with interest at the rate of 18% per annum thereon. 4. The parties led evidence in support of their respective cases. The trial court was pleased to partly decree the suit and order that the respondent shall pay amount of Rs.1,17,420/- together with interest at the rate of 12% per annum to the appellants holding that the appellants had proved that they had carried out the work of printing of books as per the terms of the tender. Being aggrieved by the judgment and decree of the trial court, the respondent preferred Civil Appeal No.145 of 2003 to the District Court, which came to be allowed by the order impugned in the present second appeal. The District court found that the judgment and decree of the trial court was contrary to the oral and documentary evidence on record and that the trial court had drawn erroneous inference from the evidence. The appeal court held that the appellants had failed to S.A.No.1425/2004. 6 establish that they had carried out the work of printing of the books as per the terms and conditions of the agreement with the respondent and supplied the material in time and therefore, the appellants were not entitled to recover the amount claimed by them. 5. The appeal court took note of the fact that the terms and conditions of the tender and the work order dated 21st October, 1986 were not disputed. The appellants came to the court with the case that they had completed and carried out the printing work as per the requirements of the tender conditions and supplied the printing material in due course of time. Proprietor of appellant no. 1 Uttamchand Nahar, however, in his cross-examination admitted that the size of the books printed by the appellants were not as per the specifications and that the size of the book from both the sides was reduced by one inch. The appellants had also not got the paper for printing certified from the respondent as required by the terms. The appellants did not file sample of the printing paper supplied by the respondent. They also did not produce any acknowledgment or receipts from the respondent as regards the S.A.No.1425/2004. 7 supply of the printed material. The witness was unable to state the extent of the printing material supplied. He failed to produce copy of the book printed by him as per the work order. As against this, the respondent established by producing the report that about 90% of the paper used for model question papers was of inferior quality than the sample. The size of the book was shorter in length. The witness of the respondent gave details about the delay in supplying the material. The delay was of 120 days in supply of three books. The witness further stated that the appellants were unable to supply remaining two books which had got to be printed from other printers. This case of the respondent was not dealt with at all by the appellants. The oral evidence of the appellants was limited to baldly contending that they have supplied the material as per the terms and conditions and they have not committed any breach. The appeal court accepted the documents produced by the respondents, which were certified copies of the official record, including the report dated 11th February, 1987, on the ground that the respondent being a semi-government autonomous body, certified copy of its record are admissible in evidence. S.A.No.1425/2004. 8 6. Mr.P.B.Shah, learned counsel for the appellants, submits that the appeal court had mechanically accepted the evidence of the expert being report dated 11th February, 1987. Relying upon decision of the Apex court in State of H.P. ..vs.. Jailal and others (1999)7 SCC 280, he submits that the report of an expert does not go in evidence automatically. He has to be examined as a witness in the court and has to face cross-examination. The appeal court held that though ordinarily an expert's report is required to be proved by examining him, the report of the expert in the instant case, who was a Manager of the Photos Zinco Press – a Government Establishment – could be accepted. Mr.P.N.Purkar, who had given the report had retired from service. His evidence was substituted by his office Superintendent and therefore, the same could be accepted by the court. Even if the report of the expert is ignored, there is sufficient material in the form of admission of the appellants available on record to establish the breaches of terms and conditions of the tender. As already noted above, the witness of the appellants has admitted in his cross-examination about the reduced size of the book printed by him. The appellants have not brought any material before the court to establish the delivery of S.A.No.1425/2004. 9 the printing material made by them on time. Considering the allegations of breaches of the terms and conditions made in the show cause notice issued to the appellants, it was necessary for the appellants to deal with the same and bring evidence by producing the book printed, and sample paper supplied to them by the respondents to show that the work carried out by them was in accordance with the terms and conditions of the tender. In these circumstances, no fault can be found with the decision of the appeal court. 7. Mr.Shah, learned counsel, next submits that in view of Section 103 and 106 of the Evidence Act, the burden lied heavily upon the respondents to establish that there was breach of the terms and conditions by the appellants. Section 103 of the Indian Evidence Act reads as follows - 103. Burden of proof as to particular fact – The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. S.A.No.1425/2004. 10 8. This section actually puts the initial burden of establishing that the work carried out by the appellants was in accordance with the terms of the tender was upon the appellants because the appellants wished the court to believe the existence of the facts. If the appellants were to bring some evidence in support of their claim, the burden would have shifted upon the respondent. But the appellants failed to discharge the burden. As regards the application of Section 106 of the Indian Evidence Act, in my opinion, the reliance placed thereupon is misplaced because the quality of the sample as also the quality of the book printed was within the knowledge of both the sides. It cannot be said that the same was specially within the knowledge of the respondents alone. In these circumstances, I find no infirmity whatsoever in the impugned judgment and order. There is also no substantial question of law arising for consideration of the court. Hence, the second appeal is dismissed. JUDGE chute