RFA-616-04 Page 1 of 3 i.16 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 616/2004 % Date of Order : 19.11.2008 M/S J.B.MARKETING & FINANCE ..... Appellant Through: Mr.Sudheer Pandey, Adv. versus RAKESH KHAITAN & ANR. ..... Respondents Through: Nemo CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J.(Oral) 1. Heard learned counsel for the appellant. 2. We note that the respondents have been served by publication and vide order dated 9.7.2008 were proceeded against ex-parte. 3. The appellant was the plaintiff and had instituted a suit for recovery of Rs.5,94,820/- on 17.8.2002. Since the appellant is a company registered under the Companies Act, the suit was instituted and plaint was signed and verified by one Shri S.S.Rawat, the Branch Manager of the appellant who RFA-616-04 Page 2 of 3 claimed authority to do so under the Board Resolution dated 30.5.2002, Ex.PW-1/1. The suit was based on commercial transactions as per a statement of account in which entries pertaining to the transactions were entered, being Ex.PW-1/2. 4. The witness of the plaintiff apart from proving the Board Resolution, Ex.PW-1/1 and the statement of account, Ex.PW-1/2, proved a legal notice of demand dated 27.4.2002, Ex.PW-1/3 and postal receipts evidencing dispatch thereof by registered post as also UPC, Ex.PW-1/4, Ex.PW-1/5 and Ex.PW- 1/6. Since the notices were sent by Regd.A.D.Post at two addresses the acknowledgment cards thereof, evidencing that the postal docket was delivered to the notice, were proved as Ex.PW-1/7 and Ex.PW-1/8. 5. In spite thereof, the suit has been dismissed holding that the certificate of incorporation of the plaintiff has not been filed. The original minutes book has not been produced and the original ledger and the bills in respect whereof debit entries were made have not been produced. So holding, the suit has been dismissed. 6. We may only note that the witness of the appellant was not cross-examined by the respondents who were ex- parte at the trial. Thus, each and every statement made on oath by the witness of the appellant had to be accepted. Further, what was the learned Trial Judge doing when he was exhibiting the documents? Objection to the admissibility and RFA-616-04 Page 3 of 3 proof of a document has to be raised when a document is sought to be proved. If so done, the party concerned can take remedial actions there and then. 7. Since the witness of the appellant was not cross- examined, we hold that the testimony of the witness of the appellant being not challenged, has to be accepted in toto. 8. In respect of entries in the statement of account and the same required to be proved by producing the original documents we may record that only when a party challenges an entry in a statement of account has the same to be proved. If an entry in the statement of account is not challenged, the party relying upon the statement of account has not to justify the said entry. 9. We allow the appeal. The impugned judgment and decree dated 23.7.2003 is set aside. Suit filed by the appellant is decreed in sum of Rs.5,94,820/-. We grant appellant interest on the said sum from the date of the suit till realization @9% per annum. 10. The appellant shall also be entitled to costs all throughout. PRADEEP NANDRAJOG, J. J.R. MIDHA, J. NOVEMBER 19, 2008 Dharmender