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2014 DIGILAW 1981 (HP)

Ashok Chauhan v. S. S. J. V. Projects Pvt. Ltd.

2014-12-23

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. In this application, a prayer has been made to allow the applicant-plaintiff to prove office note dated 31st March, 2009 by way of leading secondary evidence. The relief has been sought on the ground that the plaintiff, a Company engaged in the business of doing construction work was awarded the job of mucking of intermediate adit of (U/S & D/S) of Uhl Project @ Rs.150/- and Rs. 190/- per cubic meter in October, 2003 by defendant No. 1-Company. The plaintiff executed the work and submitted his claim in the month of July, 2008 in respect of the work to the tune of Rs.1,58,16,429/- to defendant No. 1- Company for payment. During the course of verbal negotiations held between Sh. Ashok Chauhan, a proprietor of the plaintiff-Company and Sh. N.N. Shetty, Director (projects) of defendant No. 1-Company, a consolidated sum of Rs.48,56,380/- was payable to the plaintiff in lumpsum towards its claim. An office note, dated 31.03.2009 duly signed by said Sh. N.N. Sheety, Sh. Ashok Chauhan, the proprietor of the plaintiff-Company witnessed by S/Sh. R.S. Kamal, General Manager, Sh. Dinesh Shetty, Project Manager of defendant No. 1-Company, defendants No. 3 and 4 respectively was executed to this effect. A copy of the note is Ext. AW1/A. Complaint is that the defendant-Company in the written statement to the suit has denied the execution of any such note and as regards, defendants No. 3 and 4 in written statement they filed have comeforward with the version that they never executed any such note dated 31.03.2009 and rather appended their signatures on the office note in the capacity of witnesses on the request and at the instance of Sh. N.N. Sheety, hence this application. 2. The defendant-Company by denying the execution of any such note has come forward with the version that no such office note is available in the record maintained by the Company. A copy of office note does not bear any number of the Company nor typed out on its letter head, hence not binding on the defendants. Sh. R.S. Kamal was never the employee of the Company and as regards, Sh. Dinesh Shetty, he had no power to make any financial commitment. A copy of office note does not bear any number of the Company nor typed out on its letter head, hence not binding on the defendants. Sh. R.S. Kamal was never the employee of the Company and as regards, Sh. Dinesh Shetty, he had no power to make any financial commitment. In the written statement, the stand of defendant No.1-Company is that the office note dated 31.03.2009 is contrary to the terms of work order and was never executed with the express knowledge or approval of the replying defendant. The office note, according to defendant, No. 1, seems to be result of some kind of undue influence exercised by the plaintiff on the erstwhile officers of defendant No. 1, hence has no legal value nor binding on the defendants. 3. On the pleadings of the parties, following issues were framed in this application on 26.02.2014: 1. Whether the applicant/plaintiff is entitled to prove office note dated 31.3.2009, said to have been executed by him, defendants No. 3 and 4 and one Sh. N.N. Shetty, Director (P) of defendant No. 1-company, by way of secondary evidence under Section 65 of the Evidence Act? OPA. 2. Relief. 4. On behalf of the applicant-plaintiff its proprietor, Sh. Ashok Chauhan, has appeared in the witness box as AW-1 and proved the office note Ext. AW-1/A. On the other hand, the defendants examined Sh. Chandra Sekhar Das, Director, P&A as RW-1. 5. The evidence as has come on record by way of AW-1 and RW-1 is equally balanced because while AW-1 has supported the case as set out in the application, RW-1 has supported the case as pleaded in the reply to the application. There being nothing new in their statements, hence need not to be discussed in detail. 6. On hearing learned counsel on both sides and taking into consideration the evidence produced in this application, the findings on the above issues are as under: ISSUE NO. 1 7. The onus to prove this issue is on the applicant-plaintiff. The plaintiff has set-up the plea of execution of the office note Ext. AW-1/A by Sh. N.N. Shetty, Director (Projects) of defendant No. 1-Company and S/Sh. R.S. Kamal, General Manager, Dinesh Shetty, Project Manager of defendant No. 1- Company. 1 7. The onus to prove this issue is on the applicant-plaintiff. The plaintiff has set-up the plea of execution of the office note Ext. AW-1/A by Sh. N.N. Shetty, Director (Projects) of defendant No. 1-Company and S/Sh. R.S. Kamal, General Manager, Dinesh Shetty, Project Manager of defendant No. 1- Company. It is seen that defendant No. 1 has not disputed the execution of this document in the written statement and rather while denying the execution thereof by defendant No. 1, such note executed by Sh. N.N. Shetty, R.S. Kamal and Dinesh Shetty is not binding on the defendants for the reasons that neither of them had any financial power to make any financial commitment. Therefore, prima-facie the denial is not to the execution of the document, but the dispute is qua the competency of the officer to execute any such note and thereby to make financial commitment and bind defendant No. 1. 8. Significantly, the parties have not yet stepped into the witness box because the suit presently is at the stage of recording plaintiff's evidence. It is thereafter the defendants including defendants No. 3 and 4 will produce the evidence. The plaintiff can produce this office note at an appropriate stage in the suit i.e. at the time of producing evidence in support of its case. The plaintiff can put this document to the witnesses to be examined by the defendants including defendants No. 3 and 4. It is thereafter, if the execution of this document is disputed, the plaintiff may have an occasion to seek remedy in accordance with law including the one under Section 65 of the Indian Evidence Act. At this stage, when the existence of this document is not disputed and rather as per own version of defendant No.1 this document bearing signatures of Sh. N.N. Shetty, S/Sh. R.S. Kamal, General Manager, Sh. Dinesh Shetty, Project Manager of defendant No. 1-Company is not binding on it, in view of they were not having any authority to execute any such document and make any financial commitment binding thereby defendant No. 1-Company lead to the only conclusion that the existence of this document has not been disputed but it is the authority of the person who entered the same has been questioned in reply to this application and also the written statement. Above all, defendants No. 3 and 4, admit their signature on this document, however, as per their version in written statement, they put their signatures at the instance of Sh. N.N. Shetty in the capacity of witnesses. There was no occasion to the plaintiff to have filed this application at this stage. 9. As pointed out supra, occasion, if any, will arise at an appropriate stage i.e. on and after the parties produce the evidence in the main suit. The application at this stage, therefore, is mis-conceived and deserves to be dismissed. If not shocking it is painful to point out that it is on account of pendency of this application instituted on 30th August, 2012, the proceedings in the main suit are held up for a period over two years. RELIEF: 10. With the above observations, this application fails and the same is accordingly dismissed.