1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NUMBER 1528 OF 1980 1. Khurshidunisa Kadar Shaikh ) 2. Fatima Hamed Ali ) 3. Abdul Khwaja Shaikh ) 4. Abdul Latif Shaikh ) 5. Abdul Hanif Shaikh ) 6. Zehara Sajjad H. Khan ) 7. Abdul Razzaq Shaikh ) 8. Abdul Sattar Shaikh ) 9. Abdul Rahim Shaikh ) All of whom are residing at 156-6-16. ) Haji Hussain Masjid Road, Golibar, ) Santacruz (E), Mumbai – 400055. ) .. Plaintiffs Versus 1. Mr. V. Prabhakar, Secretary, Finance ) Department. The State of Maharashtra, ) Government of Maharashtra, New ) Administrative Building, 8th Floor, ) Opp. Mantralaya, Bombay – 400032. ) 2. Suresh Kumar, The Dy. Secretary to ) Government & Director of Small Savings ) & State Lotteries, Finance Department, ) New Administrative Building, 8th Floor, ) Opp. Mantralaya, Bombay – 400032. ) .. Defendants Mr. S.J, Shah and Mrs. G. Kothari and Ms. Sheetal Mhatre i/b M/s. Mulla and Mulla & Cragie Blunt & Caroe for the Plaintiff. Mr. Milind V. More, AGP with Mr. H.B. Takke for the Defendants. CORAM: S.J. VAZIFDAR, J. DATED : 15TH DECEMBER, 2009. 2 ORAL JUDGMENT : 1. The suit is filed to recover a sum of Rs. 100,000 with interest at 6% per annum from the date of the filing of the suit till payment. The suit is based on a lottery ticket purchased by the original plaintiff. The lottery ticket was issued under a scheme called "The Maharashtra State Lottery Scheme". The original plaintiff having expired his heirs were impleaded in his place. The plaintiffs case. 2. I will refer to the plaintiff's case both in the plaint as well as in his affidavit in lieu of examination in chief. There is no inconsistency between the two. However his examination in chief furnishes details in respect of some of the averments in the plaint. 3. The plaintiff stated in the plaint that he purchased the lottery ticket bearing the number PZ 1963444 in or about June/July 1976 from a roadside vendor in Kalyan. In his affidavit in lieu of examination in chief he however stated that he had purchased the ticket from a roadside vendor at the Churchgate Station. Though much was said of this change in the stand as to where ticket was purchased it is of no consequence. On the reverse of the ticket was a rubber stamp of M/s Majestic Bookstall, Shivaji Chowk, Station 3 Road, Kalyan. 4. The monthly draw being draw number 124 in respect of the said ticket was to take place on 25th July 1976. The plaintiff however discovered that the ticket purchased by him had secured the first prize only on 8th August 1976. In his affidavit in lieu of examination in chief he stated that he ascertained the same from a lottery ticket agent near the Bombay Central Station. He admitted in his affidavit that thereupon his wife and he applied a few dots of “sindoor” on the face of the ticket as it had proved to be lucky for them. 5. The plaintiff discovered that his was the prize winning lottery ticket only on or about 8th August 1976. Accordingly on 10th August 1976 the plaintiff went to the pay and accounts office of the State Government in the finance department in the new administrative building, opposite Mantralaya in order to claim the prize money of Rs. 100,000. One Parab, an employee of the defendant, verified that the ticket had the winning number of the lottery but was of the opinion that it was dirty. He however asked the plaintiff not to worry and escorted the plaintiff to his superior one Lakhanpal. The said Lakhanpal however stated that the ticket was bogus and that the plaintiff was liable to be prosecuted for being in 4 possession of such a ticket. The plaintiff, being illiterate and a poor cobbler with a large family to support was intimidated by the threat and therefore took his ticket back and left the office. 6. The plaintiff by a letter dated 20th September 1976 Addressed to the Director of State Lotteries stated the above facts, requested a thorough examination of the ticket and the payment of the prize money in respect thereof. In his affidavit in lieu of examination in chief the plaintiff stated that the said letter was prepared on his behalf by an advocate. 7. The plaintiff on 11th October 1976 once again presented the ticket to the finance department of the defendant. The finance department accepted the ticket and issued a receipt for the same. In his affidavit in lieu of examination in chief the plaintiff stated that he had spoken to an MLA, who telephoned an officer in the finance department and requested him to take the ticket. 8. Not having heard anything from the government regarding the ticket the plaintiff approached a Municipal Councillor for assistance. The said Municipal Councillor addressed a letter dated the 1st March 1977 to the finance department regarding the plaintiff's case. The defendant by a letter dated the 12th April 1977 5 addressed to the said Municipal Counsellor stated that the ticket was not valid inter-alia for the reasons contended even in this suit which I will refer to later. 9. The plaintiff thereafter addressed a letter to the Chief Minister of Maharashtra in this regard but received a reply regretting the defendant's inability to make payment in respect of the said ticket contending that it was not a genuine ticket and that it was mutilated and spoiled and was therefore not a valid ticket entitling the plaintiff to claim the prize money in respect thereof. 10. It appears that the defendants had made a complaint to the Commissioner of Police alleging that the plaintiff had forged the ticket. However no criminal case had been filed against the plaintiff. 11. The ticket had not been returned to the plaintiff. The defendants were unable to trace and produced the ticket at the trial. The defendant's case: 12. The defendant submitted that the plaintiff has no cause of action; that the ticket was in a torn and mutilated condition; was not genuine and that as per the provisions of rule 23 of the 6 Maharashtra State Lottery Rules, 1972 as amended from time to time the plaintiff was not entitled to the said prize. 13. It is further contended that under the provisions of the said rules the prize must be ordinarily claimed within two months from the date of the draw. The plaintiff however presented the said ticket beyond the said period of two months. It was therefore contended that the plaintiff was not entitled to the prize in respect of the said ticket. It is stated in the written statement that tickets of the Maharashtra State lottery are printed on security paper by the Central Government Press Bombay and accordingly the genuineness of the tickets is verified from the Government Central Press before the prize amounts in respect of tickets is paid over to the claimants. It is further averred that it was verified that there were no corrections in this particular batch of printed sheets and also that there was no duplicate ticket of the same number. It was therefore contended that the ticket produced by the plaintiff was a forged ticket. 14. According to the defendants written statement after the bulk of tickets of each draw are printed in the Government Central Press they are allotted for sale through the pay and accounts office to the authorised agents in Bombay and through the district Treasury officers to authorised agents in different districts in Maharashtra. As 7 is done in respect of all tickets as a rule, the press, it is contended, had taken special precautions in respect of the said draw number 124 to ensure that duplicate tickets of the same number were not printed. 15. The defendants contended that the ticket book containing the genuine prize winning ticket which also had the same number was sold by the pay and accounts office Bombay to the authorised lottery agent namely Majestic Book Stall, Girgaon Naka, Bombay while the ticket produced by the plaintiff bears a stamp of an unauthorised agent at Kalyan. The genuine prize winning ticket was presented to the defendants by one Shirgaonkar on 28th July 1976 and the prize amount was also paid to him by the defendant. 16. The defendants stated that as per a report dated 11th January 1977 by the Directorate Printing and Stationery the said ticket produced by the plaintiff is forged. Suffice it to note at this stage that the defendant did not prove the said report. Further even assuming that the report was proved it would make no difference. The contents thereof were not established in any manner. The defendants therefore denied the plaintiff's claim in the suit. 8 17. By an order dated 22 March 2001 D.K. Deshmukh J. framed the following issues: -- (1) Whether the plaintiff proves that he purchased the lottery ticket No. PZ 196 3444 from a wayside vendor at Churchgate station? (2) Whether the plaintiff proves that the reverse of the lottery ticket purchased by the plaintiff bore the rubber stamp of M/s Majestic Book Stall, Shivaji Chowk, station, Kalyan? (3) Whether the plaintiff proves that M/s Majestic Book Stall, Shivaji Chowk, Station Road, Kalyan is an authorised agent appointed by the defendants? (4) Whether the plaintiff proves that at the 124th draw of the Maharashtra State Lottery held on 25 July 1976, the first prize of Rs. 100,000 was declared in respect of the ticket number PZ 1963444? (5) Whether the plaintiff proves that on 10th August 1976, he visited the Pay and Accounts Office of the defendants to collect the prize money? Whether the plaintiff proves that on 10th 9 August 1976, he presented the ticket to one Mr. Parab of the defendants Pay and Accounts Office? (6) Whether the plaintiff proves that he presented the ticket several times of (to) the defendants for claiming the prize? Whether the plaintiff proves that the Finance Department accepted the said ticket and issued a receipt? (7) Whether the plaintiff proves that inspection of the documents have not been given by the defendants? (8) Whether the plaintiff proves that he is entitled to interest on the said sum of Rs.100,000 that is due and payable by the defendants? (9) Whether the defendants prove that the plaintiff has tampered with and/or altered the number of the ticket? (10) Whether the defendants prove that the report dated 11th January 1977 discloses reasons as to why the ticket was not valid? (11) Whether the defendants prove that the prize amounts on 10 the ticket was paid to a genuine winner? 18. The original plaintiff examined himself. Two witnesses were examined on behalf of the defendants namely one Jaiwant Ramakant Joshi (PW 1) and one Sanjay Waichal (PW 2). Re: Issue Number 1. Whether the plaintiff proves that he purchased the lottery ticket No. PZ 196 3444 from a wayside vendor at Churchgate station? 19. Much was made of the inconsistent stand taken by the plaintiff in the plaint and in the subsequent affidavits regarding where he purchased the lottery ticket. Mr. More stressed the fact that the plaint was translated to the plaintiff who when the suit was filed was 45 years old whereas when he filed his affidavit in lieu of examination in chief was 72 years old. It was contended that his memory must have been more accurate therefore when he filed the suit than when he led his evidence. Mr. More submitted therefore that the contention in the evidence that he purchased the ticket at Churchgate was false. 20. It is true that in the plaint it is stated that he had purchased the ticket at Kalyan whereas subsequently in the affidavit 11 in rejoinder to the summons for judgment as well as in his affidavit in lieu of examination in chief he stated that he bought it from a wayside vendor outside the Churchgate station. I do not however see how that should make any difference to the case. Mr. More was unable to indicate anything either in law or in the rules or in the said scheme which would make any difference to the plaintiff's entitlement to the prize money if indeed the ticket was genuine. The ticket could have been sold anywhere. He did not invite my attention to any provision which restricted the sale of the ticket from any particular location. In that event I do not see how this inconsistency in the plaintiff's case can affect the merits of his case. Nor was Mr. More able to indicate any benefit that the plaintiff could possibly derive by having changed the location of the place from which he purchased the ticket. 21. I do not find the inconsistency in the plaintiff's case in this regard as affecting his credibility in any manner whatsoever. The evidence having been recorded on commission I indeed did not have the benefit of observing the witnesses demeanour. I do not find anything from the notes of evidence however which indicates adversely about the honesty of the plaintiff's testimony. It would do well to remember that the plaintiff was a poor cobbler. He had the benefit of being represented by a leading solicitors firm and by a 12 leading counsel of this court through the good offices of a social service organisation, the Rotary Club of Bombay. 22. The doubt in this regard is removed by the fact that it was not for the first time in the affidavit in rejoinder to the summons for judgment that the plaintiff had stated that he purchased the ticket from a roadside vendor outside the Churchgate station. As Mr. Shah, the learned counsel appearing on behalf of the plaintiff ,rightly pointed out, as far back as on 29thApril 1977 (exhibit P3) it was pointed out on behalf of the plaintiff that the ticket had been purchased from a hawker in lottery tickets plying his trade near the Churchgate Railway Station. This was therefore soon after, in fact contemporaneously with the plaintiffs representations to the defendants for payment of the prize money and much before the suit was filed. There is therefore no question of the plaintiff's case in the affidavit in lieu of examination in chief being an afterthought. 23. Issue number one is therefore answered in the affirmative. Re: Issue no 2. Whether the plaintiff proves that the reverse of the lottery ticket purchased by the plaintiff bore the rubber stamp of M/s Majestic Book Stall, Shivaji Chowk, station, Kalyan? 13 24. The issue does not really arise. The averment to this effect in paragraph 3 of the plaint was not denied in the written statement. The ticket admittedly was given to the defendants who misplaced the same. It is not averred in the written statement that the defendants do not remember the endorsement on the reverse of the ticket. In fact in paragraph 2 of the affidavit in lieu of examination in chief of DW 1 it is specifically stated that the said lottery ticket bears the stamp of "majestic" book stall, Shivaji Chowk, Station Road, Kalyan. Whether this was the authorised agent or not is a different matter altogether. 25. Issue number 2 is therefore answered in the affirmative. Re: Issue no. 3. Whether the plaintiff proves that M/s Majestic Book Stall, Shivaji Chowk, Station Road, Kalyan is an authorised agent appointed by the defendants? 26. In paragraph 10 of the written statement it is contended that M/s Majestic Book Stall, Shivaji Chowk, Station Road, Kalyan is not an authorised agent of the Maharashtra State Lottery. In the cross-examination the plaintiff was called upon to explain the stamp of Kalyan endorsed on the lottery ticket. The plaintiff understandably 14 replied that he did not know why there was such an endorsement. (Question no. 19). It is significant to note that in the affidavit in lieu of examination in chief neither DW 1 nor DW-2 contended that Majestic Book Stall was not an authorised agent of the Maharashtra State Lottery. I do not read the averments in paragraph 4 of the affidavit in lieu of examination in chief of DW 1 to contain such an averment. What is contended in paragraph 4 is that the said lottery ticket bearing the same number was sold to another agent who had the genuine prize winning ticket of the said number. These averments do not suggest that according to the defendants the said M/s. Majestic Bookstall was not an authorised agent. On this ground alone viz. that no evidence was led in support of the contention in the written statement, issue number 3 ought to be decided against the defendants. 27. Added to this is the fact that DW 2 in answer to question 13 in his cross-examination stated that the list of agents to whom the lottery tickets would be distributed will be with the lottery department or with the treasury of the defendants. Despite the same the defendants did not produce or prove the list of agents so maintained by their departments. It is naturally the defendants and not the plaintiff who would be in possession of the said lists. The defendants ought therefore to have produced the same. Having failed 15 to produce the said lists despite a specific issue having been raised an adverse inference against the defendants would be justified to the effect that if the lists were produced the name of M/s Majestic Book Stall would have been included therein. 28. DW 1 in answer to question 33 stated that he was not sure as to whether any list was being maintained of the various lottery agents at that point of time. This appears to be contrary not only to the evidence of DW-2 but also to rule 11 of the Maharashtra State Lottery Rules, 1972 which inter alia states that the names and addresses of the agents appointed will be published by the appointing authorities for the information of the public. He was, therefore, rightly cross-examined as under: -- “Q 34. In that case on what basis is it stated in your Written Statement that M/s Majestic Bookstall, Shivaji Chowk, Station Road, Kalyan was not an authorised agent of the Maharashtra State Lottery? Answer. I say that The Pay and Accounts Department and the State Treasury Department used to keep the tickets and maintain a record of the serial nos and numbers of the tickets sold to each agent. Thus on that basis the statement has been made in the Written Statement that M/s Majestic Bookstall, Shivaji Chowk, Station Road, Kalyan was not an authorised agent of the Maharashtra State Lottery.” 29. The mere fact that another ticket which the defendants believed to be the genuine one was sold to one agent does not necessarily mean that there were no other agents for the sale of the 16 said lottery tickets. 30. In the circumstances issue number 3 is answered in the affirmative. Re: Issue no. 4. Whether the plaintiff proves that at the 124th draw of the Maharashtra State Lottery held on 25 July 1976, the first prize of Rs. 100,000 was declared in respect of the ticket number PZ 1963444? 31. This issue does not arise either as there is no dispute that the ticket bearing the said number did win the first prize at the said lottery. 32. Issue number 4 is therefore answered in the affirmative. Re:Issue no.5. Whether the plaintiff proves that on 10th August 1976, he visited the Pay and Accounts Office of the defendants to collect the prize money? Whether the plaintiff proves that on 10th August 1976, he presented the ticket to one Mr. Parab of the defendants Pay and Accounts Office? 33. I have already referred to the averments in the plaint regarding the plaintiff's visit to the pay and accounts office of the 17 defendants and the names of the officers he met namely the said Parab and Lakhanpal. Paragraph 12 of the written statement contains mere general denials. What is important to note is that the defendants do not deny that in the relevant departments there are officers by the said names namely Parab and Lakhanpal. 34, It is significant to note that these two officers have never filed any affidavits. Nor have the defendants led their evidence. They would be the material witnesses in this matter. It is not even stated by DW 1 that the said officers are no longer employed by the defendants. In answer to question 23 in his cross-examination DW 1 stated that he did not know where the said Lakhanpal is today. He does not even know whether the said Lakhanpal had retired from service. In other words there was not even an attempt to contact them and examine them. An adverse inference against the defendants for not having examined the said officers is therefore justified. 35. In fact DW 1 in paragraph 8 of his affidavit in lieu of examination in chief expressly admitted that on 10th August 1976 the plaintiff presented the ticket to the defendants for collecting the prize money and that at that time the said Lakhanpal was the director of State lottery and the said Parab was working as a clerk in the lottery section at the counter for accepting the prize winning tickets. No 18 further evidence is therefore required in establishing that the plaintiff visited the defendants office on 10th August 1976 and presented the said lottery ticket to the said Parab. That the plaintiff stated that the said Parab sold snacks is really of no consequence in view of the fact that the ticket was accepted by the defendants from the plaintiff. 36. In answer to question 19 in his cross-examination DW 1 stated that the defendants had not refused to accept the ticket the first time and that it is only after the report came that the ticket was not genuine from the press that the defendants refused the ticket. In fact the exact dates on which the plaintiff visited the defendants is not of importance. The fact that he visited the defendants office and presented the ticket is not merely established but admitted. For this reason it is also of little significance or importance that the plaintiff was unable to recollect during his cross-examination thirty years later, the nature of the defendants’ office. He stated that the office he visited was on the nineteenth floor, whereas the administrative building has only twelve floors, a fact which incidentally is not in the evidence. The important and relevant fact is that the defendants accepted the ticket tendered by the plaintiff. 37. In the circumstances issue number 5 is answered in the affirmative. 19 Re: Issue no. 6. Whether the plaintiff proves that he presented the ticket several times of (to) the defendants for claiming the prize? 38. That the plaintiff visited the defendants office on 10th August 1976 and thereafter on 11thSeptember 1976 is established. Thus even if he did not visit the office several times what is important is that he visited the office at least twice and that during those visits he presented the said lottery ticket and the same was taken by the defendants albeit for checking/verification of its genuineness. 39. Issue number 6 is answered accordingly namely that the plaintiff visited the defendants office at least on 10th August 1976 and 11th September 1976. Re: Issue no 7. Whether the plaintiff proves that the Finance Department accepted the said ticket and issued a receipt? 40. This issue again does not arise. The defendants have admitted that they did accept the ticket for verification of its genuineness. In fact the defendants admittedly issued a receipt for the same to the plaintiff which was proved in evidence and marked 20 as Exhibit P-1. 41. Issue number 7 is therefore answered in the affirmative. Re:Issue no.8.Whether the