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2014 DIGILAW 745 (BOM)

Kashi Dairy and Restaurant v. Peter Tellis

2014-03-20

F.M.REIS

body2014
JUDGMENT 1. Heard Mr. Vengurlekar, learned counsel appearing for the appellant. 2. The above appeal challenges the judgment dated 26.09.2007 passed by the learned Civil Judge Senior Division, Vasco, whereby a suit filed by the appellant for damages came to be dismissed. 3. Mr. Vengurlekar, learned counsel appearing for the appellant has assailed the impugned judgment on the ground that though the evidence on record discloses that the respondent no.4 who is a practicing advocate was present at the time of the morcha nevertheless, the learned Judge has erroneously refused the damages claimed by the appellant. The learned counsel further pointed out that the appellant was falsely implicated in an allegation of rape against the victim who was working at the relevant time in the establishment of the appellant. The learned counsel further pointed out that the respondents with a common intention illegally organized the morcha and trespassed into the suit premises of the appellant thereby causing damages to the shop to the tune of over 5 lakhs. The learned counsel further pointed out that the partner of the appellant at the relevant time was out of the station and taking an advantage of the said situation the respondents ransack the business establishment of the appellant and caused substantial damages. The learned counsel further pointed out that on account of the said incident, a FIR was lodged before the local Police Station against all the respondents in the suit. The learned counsel further pointed out that though the respondents have been acquitted in the said proceedings nevertheless, there is enough material on record which conclusively establishes the involvement of the respondents in committing the damage to the suit shop. The learned counsel thereafter has taken me through the impugned judgment of the Trial Judge and pointed out that the learned Judge has misconstrued the evidence on record and has erroneously come to the conclusion that the appellant has failed to establish his claim of damages. The learned counsel further pointed out that on account of loss of reputation of the partner of the appellant, the respondents are liable to pay damages to the tune of Rs.5 lakhs. The learned counsel further pointed out that on account of malicious prosecution and defamation by filing a false complaint against the appellant, the respondents are also liable to pay damages to the tune of Rs.10 lakhs. The learned counsel further pointed out that on account of malicious prosecution and defamation by filing a false complaint against the appellant, the respondents are also liable to pay damages to the tune of Rs.10 lakhs. The learned counsel further pointed out that the learned Judge has rejected the contention of the appellant on the ground that the actual damages have not been established though according to him the claim for a sum of Rs.10 lakhs and Rs.5 lakhs was on account of non pecuniary damages. The learned counsel has taken me through the impugned judgment and the evidence on record especially the evidence of the respondent no.4 and pointed out that the said respondent has categorically admitted that he was found guilty in the disputed proceedings initiated by the Bar Council which according to him clearly establishes the implication of the said respondent in the illegal acts in the business establishment of the appellant. The learned counsel further pointed out that the learned Judge has failed to consider that the appellant has duly established his claim for damages and as such, the impugned judgment deserves to be quashed and set aside and the suit filed by the appellant deserves to be decreed. 4. The respondents though served have failed to remain present. 5. Upon hearing of the learned counsel appearing for the appellant and on perusal of the records, the following points for determination arise in the present appeal : POINTS FOR DETERMINATION (i) Whether the appellant has established that the respondents were responsible for the damages claimed in the suit? (ii) Whether the appellant has proved the damages claimed by him in the suit? 6. With regard to the first point for determination, on perusal of the evidence of PW1 Ramchandra, I find that the said witness though has stated in the affidavit in evidence the fact that the respondents had ransack the business establishment which resulted in damages to the appellant nevertheless, in the cross examination to a specific query had admitted that such submission was not correct. The star witness of the appellant otherwise ought to have been the wife of PW1 who has not been examined. It is the contention of the appellant that at the time of the alleged incident, the wife of PW1 was at the business establishment. The star witness of the appellant otherwise ought to have been the wife of PW1 who has not been examined. It is the contention of the appellant that at the time of the alleged incident, the wife of PW1 was at the business establishment. Non-examination of such an eye witness would lead to an adverse inference against the appellant with regard to the allegation of the incident that the respondents had ransacked and/or damaged the business establishment of the appellant. Apart from that, PW1 has also admitted that on the relevant date of the incident, he was not at the business establishment and in fact had proceeded to Delhi. In such circumstances, the evidence of PW1 would not in any way support the case of the appellant that the respondents had caused damage to the business establishment of the appellant. 7. Next witness examined was the son of PW1, who has in his cross examination categorically accepted that he is not aware as to who in fact entered the business establishment and caused damages to the business establishment. The learned Trial Judge has minutely examined the evidence of PW3, PW4 and PW5 and taken note of the fact that the said witnesses in the cross examination had categorically admitted that they were not aware about the persons who had entered the business establishment at the relevant time. Even PW7 who was a police official is not in a position to categorically state that in fact the respondents had entered the premises and caused damages to the business establishment. The learned counsel appearing for the appellant was unable to point out any specific material on record which would draw an inference that the respondents were responsible to the alleged damages of the business establishment. The learned Trial Judge on appreciation of evidence on record has come to the conclusion that the appellant has failed to establish the fact that the respondents had trespassed into the premises of the appellant thereby damaging the business establishment of the appellant. 8. With the assistance of the learned counsel appearing for the appellant, I have also gone through the evidence of the witnesses examined by the appellant and I find that the appellant has miserably failed to establish the fact that the respondents were responsible for the alleged damages sustained by the appellant to the concerned shop. 8. With the assistance of the learned counsel appearing for the appellant, I have also gone through the evidence of the witnesses examined by the appellant and I find that the appellant has miserably failed to establish the fact that the respondents were responsible for the alleged damages sustained by the appellant to the concerned shop. Once the fact that the respondents have entered the premises and caused damages has not been established, the question of ascertaining the damages, if any, sustained by the appellant would be of no avail. On minutely going through the impugned judgment of the learned Trial Judge, I find that there is no infirmity committed by the learned Judge while passing he impugned judgment and coming to the conclusion that the appellant has failed to establish as to which respondents had trespassed into the business establishment of the appellant. The first point for determination is answered accordingly. 9. With regard to the second point for determination though the appellant has failed to establish the fact that the respondents had ransacked the business establishment of the appellant nevertheless, on going through the evidence on record, I find that the appellant has failed to establish any quantum of such damages. Though, it is sought to be contended that some office material and the furniture has been damaged the brake-up of such damages has not been established or proved by the appellant. When a party claims damages, it is incumbent upon such party to bring cogent and reliable evidence to establish the illegal act as well as the quantum of the damages. In the present case, as far as the claim of pecuniary damages to the tune of Rs.5,97,072/- are concerned, on account of damages to the suit shop, I find that there is no material on record to substantiate such claim by the appellant. The learned Trial Judge has rightly appreciated the material on record to draw the conclusion that the appellant has failed to establish the quantum of such damages and there is no reason for any interference in such findings of the learned Judge. 10. With regard to the claim of the appellant on account of non-pecuniary damages such as defamation and loss of goodwill, I find that it is not disputed by the learned counsel appearing for the appellant that in fact the victim had lodged a FIR before the concerned Police Station. 10. With regard to the claim of the appellant on account of non-pecuniary damages such as defamation and loss of goodwill, I find that it is not disputed by the learned counsel appearing for the appellant that in fact the victim had lodged a FIR before the concerned Police Station. It appears that on the basis of such FIR, the appellant was arrested but the records reveal that apparently no criminal prosecution were thereafter initiated against the appellant. Having admitted that the FIR was in fact lodged by the victim, the appellant for reasons best known to him has failed to make such victim as a party to the suit. As the main person who had made such allegations against the appellant has not been made a party to the proceedings, the question of examining the veracity of such complaint at the instance of the respondents is totally erroneous. In case the appellant wanted to seek a claim for non-pecuniary damages, such claim, if any, ought to have been initiated also against the victim and not making such person as a party itself vitiate the claim of the appellant on that count. 11. Be that as it may, in order to put a claim of loss of goodwill, it was incumbent upon the appellant to establish the nature of goodwill he enjoyed at the relevant time. On perusal of the evidence on record, I find no such material on that aspect. Apart from that, it is not in dispute that the concerned authority has also made a complaint against the appellant on account of food adulteration. Considering the overall facts and circumstances of the case, I find that the learned Judge has rightly rejected the claim of the appellant on account of loss of goodwill. So also with regard to the claim for defamation and malicious prosecution, as the appellant has chosen not to make the victim as a party, the question of going into this aspect would be totally unjustified. The learned Judge has rightly appreciated the evidence on record to come to the conclusion that the appellant has failed to establish the quantum of such damages. Hence, there is no case made out by the appellant for interference in the impugned judgment. 12. In view of the above, the appeal stands rejected with no order as to costs.