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2010 DIGILAW 512 (BOM)

Habib Patel s/o Shami Patel v. Kaniz Akhtar w/o Altaf Khan

2010-04-01

VASANTI A.NAIK

body2010
JUDGMENT:- The appellant is the original defendant. A suit was filed by the plaintiff for a decree of Rs.2,50,000/- with interest @ 18% per annum. The plaintiff also sought a decree of permanent injunction restraining the defendant from using the name of the business concern of the plaintiff. 2. The plaintiff Kaneez Akhtar pleaded that she was running a business of electrical and fabrication under the name and style "Patel Electricals and Mechanical" since the year 1991 at Link Road, Sadar, Nagpur. The plaintiff was undertaking Government contracts as well as contracts of private parties for the work of electrification and fabrication. The plaintiff was working for the Western Coalfields Limited as a recognized contractor. The plaintiff pleaded that the defendant joined the plaintiff in the year 1991 and helped her in her business activities. It is pleaded that due to sheer hard work of the defendant during the course of his employment, the plaintiff reposed confidence in the defendant and his work. It is pleaded by the plaintiff that the defendant, however, after some time, abandoned the work of the plaintiff and while doing so, removed certain letterheads, stamps, bill-books, etc. from the business concern of the plaintiff. According to the plaintiff, the defendant started making use of these documents and started submitting tenders and quotations for carrying out the work of the Western Coalfields Limited by posing to be the proprietor of Patel Electrical and Mechanical but, showing its address at Imamwada, Nagpur and Tajbagh Darbar Gate, Umrer Road, Nagpur. The plaintiff pleaded that the defendant received an approximate amount of Rs. 80,000/- to Rs.85,000/- from the Western Coalfields Limited for executing the contracts of the Western Coalfields Limited. It is then pleaded that the action of the defendant had caused monetary loss to the aforesaid extent and also mental agony which could be calculated in money to the extent of Rs.1,50,000/-. Due to the acts of the defendant, according to the plaintiff, the plaintiff was not able to get any work orders and the business of the plaintiff was totally ruined. The plaintiff, therefore, claimed an amount of Rs.2,50,000/- with interest @ 18% per annum till its realization. 3. The defendant did not file any written statement and failed to resist the claim of the plaintiff. The plaintiff, therefore, claimed an amount of Rs.2,50,000/- with interest @ 18% per annum till its realization. 3. The defendant did not file any written statement and failed to resist the claim of the plaintiff. After the Court decided to proceed with the matter without written statement, the matter was adjourned from time to time for tendering of the oral evidence by the plaintiff and the plaintiff filed her evidence on affidavit on 20.11.1999. The plaintiff reiterated the facts pleaded in the plaint in her evidence on affidavit. 4. The trial Court, by the judgment dated 3rd of November, 2000, held that the plaintiff was entitled to a decree for an amount of Rs.2,50,000/-. The trial Court granted the decree only by stating that the plaintiff had proved her case on the basis of her affidavit at Exh.17 and the documents produced by her on record. The judgment passed by the trial Court on 3rd of November, 2000 is challenged by the present appeal. 5. Shri. Kotwal, the learned counsel for the appellant, submitted that even in the absence of a written statement, it was necessary for the plaintiff to prove her case. It is submitted on behalf of the appellant that the Court could not have decreed the suit of the plaintiff for an amount of Rs.2,50,000/- only on the basis of the evidence on affidavit, as there was no evidence whatsoever in regard to the facts leading to the mental agony suffered by the plaintiff and which was stated by the plaintiff at Rs.l,50,000/-. It is submitted on behalf of the appellant that the plaintiff had also not produced any documents on record to show that the defendant had received nearly an amount of Rs. 80,000/- to Rs.85,000/- from the Western Coalfields Limited at Chandrapur by posing to be the sole proprietor of 'Patel Electricals and Mechanical'. The learned counsel for the appellant submitted that the work orders to the extent of Rs.39,650/- were granted in favour of 'Patel Electricals and Mechanical' and the Western Coalfields Limited had issued a memo for that amount on 30th of March, 1991 in the name of 'Patel Electricals and Mechanical'. The learned counsel for the appellant submitted that the work orders to the extent of Rs.39,650/- were granted in favour of 'Patel Electricals and Mechanical' and the Western Coalfields Limited had issued a memo for that amount on 30th of March, 1991 in the name of 'Patel Electricals and Mechanical'. According to the learned counsel for the appellant, even if it is held that the case of the plaintiff about the illegality committed by the appellant in using the letterheads and other documents of the plaintiff is accepted, there is only evidence to the extent of the claim of Rs.39,650/- and no more. By relying on the judgments reported in Balraj Vs. Sunil Madan, AIR 1999 SC 3381 and AIR 2008 SC 911 , it is canvassed on behalf of the appellant that even in a case where no written statement is filed, the decree cannot be passed in favour of the plaintiff unless the pleadings made in the plaint are established. 6. None appeared on behalf of the respondent when the matter was partly heard on 25.03.2010 and 26. 03.2010. None appears on behalf of the respondent, today also. 7. On hearing the learned counsel for the appellant and on perusal of the plaint pleadings and the documents filed by the plaintiff on record, it appears that the following points arise for determination in this first appeal. I) Whether the plaintiff had succeeded in proving that the defendant received an amount of nearly Rs.80,000/- to Rs.90,000/- from Western Coalfields Limited, Chandrapur? II) Whether the plaintiff suffered a loss due to mental agony to the tune of Rs.1,50.000/- ? III) Whether the trial Court was justified in decreeing the suit for Rs.2,50,000/-? IV) What order? 8. To consider the aforesaid points for determination, it would be necessary to consider the pleadings and the evidence of the plaintiff as admittedly in this case, the defendant has not filed any written statement. It is the case of the plaintiff that the defendant misused the stationery of the plaintiff to secure the contracts from Western Coalfields Limited and received an amount of Rs.80,000/- to Rs.85,000/ - from Western Coalfields Limited, Chandrapur by posing to be the sole proprietor of 'Patel Electricals and Mechanical' . The plaintiff has pleaded in paragraph 6 that the plaintiff suffered a loss of Rs.1,50,000/- towards monetary loss and mental agony. The plaintiff has pleaded in paragraph 6 that the plaintiff suffered a loss of Rs.1,50,000/- towards monetary loss and mental agony. No details whatsoever are, however, pleaded in the plaint for computing the loss caused due to mental agony at Rs.1,50,000/-. The plaintiff reiterated the same facts in her evidence on affidavit. The facts pleaded in the plaint and stated in the affidavit are verbatim. It is, thus, clear from a reading of the evidence on affidavit that the plaintiff had not explained as to how the plaintiff suffered a loss of Rs.1,50,000/- as monetary loss due to mental agony. It is a well settled position of law that it is necessary for a party to plead and prove the specific facts which result in causing loss to the party. A money decree for the loss in business or the loss caused due to mental agony cannot be granted on the mere asking by a party and the plea in that regard needs to be explained by stating relevant facts. The plaint and the evidence on affidavit is totally silent in this regard and a bald statement is made in the pleadings and evidence on affidavit that the plaintiff suffered a loss of Rs.1,50,000/- as monetary loss due to mental agony. The trial Court, therefore, was not justified in coming to the conclusion on the basis of the affidavit at Exh.17 that the plaintiff had proved her case as regards the loss of Rs.1,50,000/-. 9. The trial Court further erred in holding that the plaintiff had succeeded in proving her case on the basis of the evidence on affidavit and documents on record. The documents produced by the plaintiff along with the list Exh.19 only show that the Western Coalfields Limited had issued a cheque forwarding memo dated 30th of March, 1991 for an amount of Rs.39,650/- to Patel Electrical and Mechanical. It is, further necessary to note that it is the case of the plaintiff in paragraph 5 of the plaint that the defendant mentioned the address of the business concern at Tajbagh Darbar Gate, Umrer Road and the cheque forwarding memo issued by the Western Coalfields Limited shows the address of the concern as Link Road, Sadar, Nagpur where the business of the plaintiff was situated as per paragraph I of the plaint. Thus, these documents are also of no assistance to the case of the plaintiff as the documents annexed to the list at Exh.19 show the address of the business of 'Patel Electricals and Mechanical' at shop no.61, Link Road, Sadar Nagpur. 10. It is, thus, apparent on a bare perusal of the documents produced by the plaintiff that these documents do not prove that the defendant received an amount of Rs. 80,000/ - to Rs.85,000/- from Western Coalfields Limited Majri by posing to be the proprietor of 'Patel Electricals and Mechanical' having address C/o. Jerryl Engineering, Behind Imamwada Police Chowki, Imamwada, Nagpur or Tajbagh Darbar Gate Umrer Road, Nagpur as pleaded in paragraph 4 and 5 of the plaint. The documents falsify the case of the plaintiff in her plaint. The trial Court ought to have considered whether the documents produced by the plaintiff actually supported the case of the plaintiff as pleaded by her. The trial Court, however, without considering the effect of the evidence on affidavit and the documents produced by the plaintiff by the following observations "Relying on affidavit Exh.17 and documents on record, the Court comes to a conclusion that the plaintiff has proved his case", decreed the suit of the plaintiff by directing the defendant to pay an amount of Rs.2,50,000/- to the plaintiff without interest. 11. Even in the absence of a written statement, it would be necessary for a party to establish his claim and the case of the plaintiff cannot be said to be ipso facto proved merely because the defendant fails to file a written statement. It is necessary for a Court to satisfy itself that the claim of the plaintiff is established before granting a decree in his favour. Even in a case where no written statement is filed, the judgment should be a self-contained document, containing a concise statement of the case and the process of reasoning by which the Court comes to the conclusion that the suit should be decreed. It was held by the Hon'ble Supreme Court in the case of Balraj Vs. Sunil Madan reported in AIR 1999 SC 3381 , that in a case for specific performance, though no written statement has been filed by the defendant, the Courts should consider whether a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. Sunil Madan reported in AIR 1999 SC 3381 , that in a case for specific performance, though no written statement has been filed by the defendant, the Courts should consider whether a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. The Supreme Court went on to add that in a suit for specific performance, pleading of readiness and willingness of the plaintiff, being a mandatory requirement, the Court should, before passing a judgment against the defendant under Order 81, Rule 10 of the Code of Civil Procedure has to scrutinize the facts set out in plaint to find out whether the said requirements, specially those indicated in Section 16 of the Specific Relief Act have been complied or not. In the facts of this case, it is clear that the plaintiff had failed to establish that the defendant was liable to pay a sum of Rs.2,50,000/- to the plaintiff. 12. In the result, the first appeal is allowed. The judgment and decree passed by the trial Court on 3rd of November, 2000 is hereby set aside. The suit of the plaintiff stands dismissed. No order as to costs. Appeal allowed.