((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1383 OF 1975 B.M.K.Industries Private Limited, Bail Bazar, Kalina Road, Old Kurla, Mumbai 400 070. Plaintiff versus Suvarna Dyeing and Printing Works, 139, Vithalbhai Patel Road, Mumbai 400 007. Defendants The proprietory concern of Thakorelal Jawarchand Shah since deceased by his Legal Representatives. K.F.Merchant a/w Ashok Varma i/by Tejpal & Co. for plaintiff. V.Y.Sanglikar i/by Divya Shah & Associates for defendants. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 18th October 2008 DATE OF PRONOUNCING THE JUDGEMENT : 6th January 2009 JUDGEMENT : 1. The plaintiff is a private limited company carrying on its business in Mumbai. On or about 1st December 1971, Thakorelal Jawarchand Shah (since deceased), sole proprietor of Suvarna Dyeing & Printing Works, approached the ((-2-)) plaintiff for getting his cloth processed in the processing house of the plaintiff. The said Thakorelal Shah is hereafter referred to as the original defendant. During the period between December 1971 and December 1972 the plaintiff processed the cloth supplied by the original defendant at its processing house at the rates previously agreed upon between the parties. The case of the plaintiff is that an agreement was arrived at between the Managing Director of the plaintiff Mr.Manilal S. Doshi and the said Thakorelal Shah that the plaintiff shall pay the excise duty in respect of the goods on behalf of and on account of the original defendant to the Excise Authorities and the original defendant shall be bound to reimburse the plaintiff in respect thereof. Accordingly, the plaintiff rendered the services of processing the cloth of the original defendant. According to the case of the plaintiff, diverse amounts were paid to the excise authorities on account of the goods so processed. Certain payments were made from time to time by the defendant on account. 2. According to the case of the plaintiff, the defendant was also a licensee in respect of a ((-3-)) portion of the plaintiff’s godown on payment of Rs.5,001/- as monthly compensation. The case of the plaintiff is that the said transaction relating to the godown has nothing to do with the transaction of processing the cloth. 3. According to the case of the plaintiff, the defendant was liable to pay a sum of Rs.2,02,920=60 on account of the said processing work and the reimbursement of the excise duty. The defendant made a part payment of Rs.1,11,761=37 to the plaintiff on account. According to the plaintiff, the defendant also made payment @ Rs.5,001/- p.m. for the use of the portion of the said godown for the period beginning from 1st December 1971 and ending with 30th November 1972. The case of the plaintiff is that on account of the processing charges and reimbursement of the excise duty, a sum of Rs.91,159-32 was the amount payable by the original defendant. The case of the plaintiff is that the original defendant never disputed the correctness of the invoices issued by the plaintiff and the debit notes issued by the plaintiff. 4. The plaintiff has referred to letter dated ((-4-)) 23rd October 1973 issued by the original defendant’s advocate in which a false plea was raised by the defendant of tenancy in respect of the said godown. It was contended by the defendant that he was entitled to a credit of Rs.4,500/- p.m. against the pending bills for processing charges. It is contended that after receipt of the said advocate’s letter, there were prolonged negotiations between the Managing Director of the plaintiff and the original defendant and, therefore, the plaintiff did not reply to the said letter. By advocate’s letter dated 1st December 1975 the plaintiff called upon the defendant to make payment of Rs.91,159-32 with interest thereon. 5. As the amount of Rs.91,159-32 was not paid, the plaintiff has filed the present suit. Apart from the said amount, the plaintiff has claimed a sum of Rs.30,003/- being interest on the said amount @ 12% p.a. from 1st March 1973 till filing of the suit. The plaintiff has claimed interest @ 12% p.a. from the date of filing of the suit till the date of passing of the decree and interest @ 6% p.a. on the principal amount from the date of passing the decree till realisation. During pendency of ((-5-)) the suit, the original defendant expired and the present defendants are the legal representatives of the original defendant. 6. The original defendant filed written statement and counter claim. The case of the original defendant is that the plaintiff had agreed to let out its factory to the defendant at the rent of Rs.501/- p.m.. According to the defendant, the plaintiff represented that the work of processing the cloth of the defendant will be carried out by the plaintiff as it was represented that the plaintiff company was having machinery for the processing work. According to the defendant, it was suggested by the plaintiff that the defendant should pay a sum of Rs.4,500/- p.m. towards service charges and the plaintiff company will give top priority for processing the material which was to be sent by the defendant from time to time. The case of the defendant is that in December 1971 he occupied the said factory at monthly rent of Rs.501/- and thereafter from time to time paid the monthly rent of Rs.501/- and also paid Rs.4,500/- as service charges to the plaintiff company. The case of the defendant is that at the inception, the plaintiff company ((-6-)) issued two separate receipts, one for Rs.1,503/- representing the deposit equivalent to the monthly rent of three months and other of Rs.13,500/- being the deposit against the amount payable for a period of three months for rendering the services. According to the defendant, by 17th January 1973, he paid a sum of Rs.58,500/- in addition to the said deposit of Rs.13,500/-. By that time the defendant had supplied 6,02,685.11 meters of cloth for processing work. However, while returning the said cloth after processing, there was shortage of 41,418.31 meters. According to the defendant, after satisfactory work for initial period of two months, it was found that the processing work by the plaintiff company was defective and, therefore, the cloth which was sent for the processing was considerably damaged. According to the defendant, he was required to pay a sum of Rs.53,037=27 to various merchants due to the defective work done by the plaintiff company. The specific case made out by the defendant is that from time to time a sum of Rs.1,11,761=37 was paid to the plaintiff in addition to a sum of Rs.58,500/- as an advance with a clear understanding that the plaintiff company would ((-7-)) adjust the claim of the defendant in respect of the shortage and for defective work. The defendant denied that he was the licensee of the premises at the compensation of Rs.5001/- p.m.. After adjusting the aforesaid amount, the defendant claimed that the plaintiff company was liable to pay a sum of Rs.82,838=62 being the value of the shortage of the material (41,418.31 meters). Apart from the said amount, the defendant claimed that the plaintiff company was liable to pay a sum of Rs.53,030=27 being the damages on account of defective work. 7. The defendant in the written statement claimed that only two delivery challans were signed by him. He claimed that the goods under bill nos.9867 and 10337 were not supplied by the plaintiff company to the defendant. The defendant prayed for dismissal of the suit and made a counter claim in the sum of Rs.1,35,868=69 (Rs.82,838=62 + Rs.53,030=27) with interest thereon @ 6% p.a. from the date of filing of the counter claim till the payment or realisation. 8. The plaintiff company filed written ((-8-)) statement to the counter claim. The plaintiff company denied various allegations in the counter claim and stated that the plaintiff company has already filed a Suit No.1382 of 1975 in this Court for recovery of possession of the premises occupied by the original defendant. The plaintiff denied various averments made in the written statement cum counter claim. 9. Issues were framed on 4th April 2007. The issues read thus :- (1) Do the plaintiffs prove that they are entitled to recover a sum of Rs.1,21,152=32 ps. from the defendants being the principal amount alongwith the interest as prayed for in the plaint? (2) Do the plaintiffs prove that they are entitled to recover an interest at the rate of 12% on Rs.91,159=32 ps. from the date of filing of suit till the decree and at the rate of 6% p.a. till the realization? (3) Do the plaintiffs prove that they are entitled to the decree as prayed for in the plaint? (4) Do the plaintiffs to the counter claim prove that they are entitled to recover a sum of Rs.1,35,868=69 ps. from the defendants to the counter claim and also entitled to for the interest thereon at the rate of 6% p.a. from the date of filing of the counter claim till the realization? (5) Do the plaintiffs to the counter claim prove that they are entitled to the ((-9-)) decree as prayed for in the plaint? (6) Whether defendants prove that they have suffered damages for the loss of clothes sent by defendants to the plaintiffs, if yes. (7) Whether the defendants have proved the alleged losses and whether the same is recoverable by the defendants from the plaintiffs. (8) Generally. (9) What reliefs." 10. At this stage it must be stated that Suit no.1382 of 1975 was filed by the plaintiff company in this Court for possession of the premises of the plaintiff company which according to the plaintiff company was allowed to be occupied by the original defendant as a licensee. It appears that this suit was clubbed with Suit No.1382 of 1975. In view of the decision of Full Bench of this Court, an order was passed on 14th March 2008 in terms of the Minutes of Order signed by the advocates of both the parties. By the said order, this Court returned the plaint in Suit No.1382 of 1975 for presentation to the appropriate Court. 11. The plaintiff company examined Mr.Manubhai S. Doshi, its Director by filing an affidavit in lieu of examination-in-chief. The defendant ((-10-)) examined one Anjana Motani as a witness. The defendant filed two separate affidavits in lieu of examination-in-chief of the said witness Ms.Anjana Motwani. The first was filed in the suit and the second one was filed in the counter claim. Cross examination of both the witnesses has been recorded on commission. 12. The learned counsel appearing for the plaintiff invited my attention to the averments made in the plaint and in the affidavit of evidence of Mr.Manubhai S. Doshi. He pointed out that in view of what is stated in paragraphs 11 and 12 of the affidavit of witness, a case was made out for leading secondary evidence of the documents relied upon by the plaintiff in the form of xerox copies thereof produced by the plaintiff along with a compilation of documents. He invited my attention to cross examination of the witness Ms.Anjana Motwani examined by the legal representatives of the the original defendant. He pointed out that in response to the question no.4 asked in the cross examination the said witness admitted that during the relevant period i.e. from December 1972 to December 1973, her age was 15 years. He submitted that ((-11-)) the witness has no personal knowledge and in fact in response to question no.5 she admitted that her two elder brothers were assisting her father. He submitted that the said witness had no personal knowledge of the transaction between the parties and, therefore, her evidence will have to be ignored. He submitted that the invoices, credit notes and delivery challans produced by the plaintiffs have gone unchallenged. He submitted that the defendants have not established their case that the plaintiff had let out the factory premises to the original defendant at the rent of Rs.501/- p.m. and that it was agreed that the defendant should pay Rs.4,500/- p.m. towards service charges. He submitted that the case of the original defendant was that the cloth having length of 6,02,685.11 meters was sent to the plaintiff for processing and while returning the processed cloth, there was a short fall of 41,418.31 meters. He stated that there is no evidence adduced by the defendants to show that there was such a short fall. In absence of any evidence of short fall and any evidence to show that a lumpsum amount of Rs.4,500/- was to be paid to the plaintiffs by way of processing charges, the case made out by the plaintiffs ((-12-)) will have to be accepted. He submitted that it is an admitted position that the cloth having length of 6,02,685.11 meters was sent to the plaintiff for processing by the original defendant and the case of the plaintiff that the cloth was returned duly processed will have to be accepted in view of failure of the defendants to adduce evidence to show a short fall. He submitted that in absence of evidence to show that the processing charges were to be paid at the lumpsum amount of Rs.4,500/- p.m. the case made out by the plaintiffs regarding charges payable by the the defendants will have to be accepted. He submitted that the invoices/bills, credit notes and the delivery challans have been duly proved by the plaintiffs. He submitted that the fact that the proprietor of the defendant has never raised any objection to the credit notes shows that the excise duty paid by the plaintiff was to be reimbursed to them by the defendants. He submitted that in the circumstances, a case is made out for passing a decree as prayed for. He submitted that this was a case of complete absence of evidence on the part of the defendants and, therefore, their counter claim will have to be dismissed. ((-13-)) 13. The learned counsel appearing for the defendants submitted that the plaintiff has not applied for permission to lead secondary evidence. He submitted that the plaintiff has not established the existence of the alleged original documents by adducing evidence. He placed reliance on a decision of the Apex Court in the case of J.Yashoda Vs. K.Shobha Rani ([2007]5-SCC-730). He submitted that assuming that a case was made out for permitting the plaintiff to lead secondary evidence, the alleged true copiers of the documents produced by the plaintiffs are not the photocopies or the xerox copies of the originals but the same are the xerox copies of the typed copies of the alleged documents. He submitted that there is no evidence on record to show that the typed copies were the true copies of the originals and there is no evidence adduced to show that the someone had compared the typed copies with the originals. He relied upon another decision of the Apex Court in the case Ashok Dulichand Vs. Madahavlal Dube and another ([1975]4-SCC-664). Lastly he placed reliance on a decision of the Apex Court in case of Neebha Kapoor Vs. Jayantilal Khandwala & ors. ((-14-)) (2008(3)-Bom.C.R.-96). He submitted that none of the documents produced by the plaintiffs have been put to the witness examined by the defendants. He submitted that the version of the witness examined by the defendants that she had knowledge of the transaction has gone unchallenged. he submitted that the plaintiff has not led any evidence to show that the entire quantity of cloth entrusted to the plaintiff for processing was duly processed and delivered to the original defendant. He submitted that the case made out by the plaintiff by sending a letter dated 4th December 1975 is clearly an after thought inasmuch as even the plaint discloses that the proprietor of the defendant by his advocate’s letter dated 23rd October 1973 had made out a specific case that the defendant was a tenant in respect of the premises. He submitted that there was no reply sent to the said communication. He submitted that as the plaintiff has miserably failed to establish the case of delivery of the material, the counter claim made by the defendants will have to be allowed. He submitted that the Roznama recorded by the Court Commissioner for recording of evidence shows that the plaintiff ((-15-)) has not adduced any evidence in rebuttal of the evidence adduced by the defendants in support of their counter claim. He, therefore, submitted that the suit be dismissed and the counter claim be decreed. 14. The learned counsel appearing for the plaintiff submitted that as the defendants could not establish their case, it was not necessary for the plaintiff to lead evidence in rebuttal. He, therefore, submitted that the defendants have no case and the the suit deserves to be decreed. 15. I have carefully considered the submissions. Perusal of the plaint shows that the entire case of the plaintiff is based on the invoices/bills issued by the plaintiff to the defendants, the debit notes issued by the plaintiff to the original defendant and the delivery challans. Perusal of the compilation of the documents produced by the plaintiff along with the affidavit in lieu of evidence of Mr.Doshi show that the xerox copies of the typed copies of invoices/bills, debit notes, delivery challans and the notices dated 1st December 1975 and 4th December 1975 have been ((-16-)) produced. A xerox copy of typed copy of statement of account has been produced. It will be necessary to refer to paragraphs 11 and 12 of the affidavit in lieu of examination- in- chief of Mr.Manubhai S. Doshi, a Director of the plaintiff. Paragraphs 11 and 12 read thus:- "11. I say that I have seen the original documents and compiled copies thereof when the matter was been attended by my previous Advocates. I say that the copies of the documents in the compilation of documents are the true copies of the original documents. 12. I say that the original documents were with me in my office at Gala No.1, Ground Floor, B.M.K.Industrial Compound, Kalina, Mumbai. I say that during the floods in the year 2005 the water entered into the said Gala of upto about 14 feets in height and all my original documents have been destroyed and thus I am relying on the copies of the documents as stated herein and as compiled in the Compilation of documents as Secondary Evidence and I tender the same." 16. The witness has not disclosed as to who prepared the typed copies of the original documents. He has not specifically stated that he had compared the typed copies with the originals. Perusal of the documents produced along with the compilation show that the xerox copies produced along with the compilation are the the xerox copies of the typed documents annexed to the plaint. As stated earlier, the ((-17-)) witness has not stated the name of the person who prepared the typed copies of the originals. The evidence ought to have been adduced by the plaintiff of the person who had either typed the copies of the documents from the originals or who had compared the originals with the typed copies. This is not a case where the defendants have admitted the bills/invoices. This is also not a case where the defendants have admitted the receipt of the credit notes and the receipt of the goods covered by the delivery challans. In the written statement the defendants have specifically denied the signatures on the delivery challans and have specifically stated that only two delivery challans are signed. The defendants have specifically denied the correctness of the statement of account annexed to the plaint. 17. As far as statement of account is concerned, there is no specific assersion made on oath that even the original books of accounts have been destroyed in the floods. This is not a case where the extracts of account maintained by the plaintiff were sent from time to time to the original defendant for confirmation. The plaintiff has not proved the ((-18-)) correctness of the entries in the statement of account. 18. Even assuming that a case was made out for permitting the plaintiff to lead secondary evidence of the original documents on the ground that the originals were lost in the floods of July 2005, the plaintiffs will have to prove the execution and contents of the documents. Perusal of affidavit in lieu of examination-in-chief of Mr.Doshi shows that the witness has not stated as to who signed the bills/ invoices and credit notes on behalf of the plaintiffs. He has also not disclosed the name of the person who has signed the delivery challans on behalf of the original defendant. There is no attempt made to prove the execution and/or contents of the bills/invoices, credit notes and the delivery challans. There is no evidence adduced on record to show that the excise duty was paid by the plaintiff on behalf of the defendants. As aforesaid documents have not been proved, the plaintiff has not proved the entries in the statement of account relied upon by them. Apart from this, the witness examined by the defendants was not confronted by showing any of the documents produced by the ((-19-)) plaintiff along with compilation of documents. 19. The witness of the plaintiff admitted in the cross examination that there is no document to show that the rates of processing the charges were previously agreed. There is no cross examination made of the witness of the defendants on this aspect. 20. The defendants have produced two separate affidavits of their witness Anjana Motwani. There is not a single document produced by the defendants. The witness examined by the defendants admitted that during the relevant period from December 1971 to January 1973 her age was 15 years. She admitted that her two elder brothers were assisting her father when she was too young. It is very difficult to accept the case made out by the defendants that the said witness had personal knowledge of the business transaction between the plaintiff and the original defendant which had taken place when the witness was only 15 years of age. In her cross examination, even the witness examined by the defendant came out with a case that the original documents in possession of the defendants were destroyed in the floods. ((-20-)) 21. The case made out by the defendants in the written statement cum counter claim is of short delivery by the plaintiff and the defects in the processing work carried out by the plaintiff. There is no evidence adduced to prove the nature of the alleged defects in the work carried out by the plaintiff. There is no evidence to show that the defendants had paid Rs.53,020=27 to various merchants on account of defective work done by the plaintiff. Apart from failing to produce a single document in this behalf, even the names of merchants to whom the amounts were allegedly paid have not been disclosed. The case of the defendants is that in addition to payment of sum of Rs.1,503/- and Rs.13,500/-, the defendants paid a sum of Rs.58,500/- to the plaintiff. Even the said case has not been substantiated by the defendants. It was sought to be contended by the counsel for the defendants that the receipts in the sum of Rs.1,503/- and Rs.13,500/- have been produced and proved by the defendants in Suit No.1382 of 1975. Apart from the fact that the said receipts are not produced and proved in this suit, the receipt in the sum of Rs.1,503/- produced in the said ((-21-)) companion suit records that the said amount was paid as deposit against the compensation. 22. Thus, the defendants have not established their claim of payment of amount of Rs.58,500/- as an advance to the plaintiffs. There is no evidence adduced to show that a total sum of Rs.53,030=27 was paid by the defendants to the merchants. The particulars of the counter claim show that apart from claim of Rs.53,020=27, the defendants