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2022 DIGILAW 122 (TRI)

Subir Saha v. Ramthakur Trading Co.

2022-03-11

ARINDAM LODH, S.G.CHATTOPADHYAY

body2022
JUDGMENT Arindam Lodh, J. - This first appeal under Section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 12.06.2019 and 17.06.2019 respectively, passed by learned Civil Judge, Sr. Division, Court no. 1, West Tripura, Agartala in Money Suit No. 43/2016 decreeing the suit of the plaintiff-respondent. 2. The plaintiff [respondent here-in] had filed a suit for realization of money from the defendants [the appellants here-in], primarily, the defendant no. 1 for a sum of Rs. 10,40,000/- (Rupees ten lakh forty thousand) only along with an interest @ 6% per annum till satisfaction of the decree. The facts as narrated by learned Civil Judge, Sr. Division may be reproduced here-in-below:- 'The plaintiff is a proprietor firm dealing with construction items like iron rod, cement, sand etc. and has his shop at Nagerjala. The defendant No. 1 is an Engineer and is a Central Government Employee. The defendant No. 2 is his mother. Said defendant No. 1 on several occasions purchased iron rod from the shop of the complainant. He took rod worth Rs. 10,40,000/- (Rupees Ten lacs Forty thousand) only. He purchased those rods in the last week of May 2015, but on credit. The defendant No. 1 assured the plaintiff to pay the amount by first week of July 2015. Thereafter, on 19.06.2015 the said defendant came to the shop of the plaintiff and issued a cheque bearing No. 802782 in favour of the plaintiff of the same amount drawn up from Tripura Gramin Bank Vide SB A/C No. 8004010005593. At the same time the defendant No. 1 made a request to the plaintiff to deposit the cheque in the month of June 2015. Accordingly, the plaintiff presented the cheque on 20.06.2015. But the said cheque was returned without being honoured due to insufficient fund. On being informed, the defendant No. 1 requested to deposit the same in the first week of October 2015. But again on being presented on 05.10.2015, the cheque was again dishonoured due to the same reason. On the third occasion, the defendant No. 1 requested the plaintiff to deposit the cheque on 1st week of December 2015. Regrettably on this occasion also the cheque got bounced due to insufficient fund. But again on being presented on 05.10.2015, the cheque was again dishonoured due to the same reason. On the third occasion, the defendant No. 1 requested the plaintiff to deposit the cheque on 1st week of December 2015. Regrettably on this occasion also the cheque got bounced due to insufficient fund. Defendant No. 2 being the mother of defendant No. 1 on several occasions came to the shop of the plaintiff and made a promissory note to pay the said amount, but none of the defendants could pay the money due to the plaintiff. The defendants contested the suit by filing written statement stating that the suit is not maintainable on the ground of cause of action and to be barred by Principles of estoppels, waiver etc. It is also the case that the defendant No. 1 purchased some materials from the plaintiff and for making payment of the same issued a cheque drawn of Tripura Gramin Bank, Abhoy Nagar, Branch in favour of the plaintiff. The defendant further admitted that the said cheque on presentation got dishonoured due to insufficient fund. In addition, the defendants further stated that the defendant No. 2 gave three non-judicial stamp papers signed by them which were blank for satisfaction of the plaintiff. The defendant most importantly, stated that defendant No. 1 paid the entire suit money in cash though did not mention the date and place of such payment further stating that even after making the payment the plaintiff did not return the original cheque and the blank non-judicial stamp paper. The defendants narrated that the plaintiff did not return back the cheque and the stamp paper on the excuse that those cheque and stamp paper got damaged by water. In short the defendants claimed that the money due has got satisfied by them in cash and hence this suit is liable to be dismissed.' 3. At the commencement of trial, the following issues were framed: 1. Is the suit maintainable in its present form and nature? 2. Is the plaintiff any cause of action to institute the instant suit? 3. Is the plaintiff entitled to get a sum of Rs. 10,40,000/- from the defendant as prayed for? If so, is the plaintiff entitled to get any interest thereon and from the date as prayed for? 4. Are the plaintiffs entitled to get preliminary decree, as prayed for? 5. 3. Is the plaintiff entitled to get a sum of Rs. 10,40,000/- from the defendant as prayed for? If so, is the plaintiff entitled to get any interest thereon and from the date as prayed for? 4. Are the plaintiffs entitled to get preliminary decree, as prayed for? 5. What other relief/reliefs the parties are entitled to?' 4. To prove the case, the plaintiff has examined one witness and produced some documents. On the other hand, the defendants similarly adduced one witness and relied on some documents. 5. While deciding the issues, learned trial court has held that the suit is maintainable and there is cause of action and the suit is within limitation. After recording evidence, adduced by the parties to the lis, on the basis of the issues framed, learned trial court held that the plaintiff has been able to prove his case and accordingly, decreed the suit in terms of the following order:- 'In the result, the suit of the plaintiff is found to be entitled to get a sum of Rs. 10,40,000/- from the defendant no. 1 as prayed for with an interest of 6% per-annum until satisfaction of the claim by the defendant no. 1. Accordingly, the defendant no. 1 is to pay a sum of Rs. 10,40,000/- with an interest of 6% per-annum until satisfaction of the claim to the plaintiff. The suit is thus decreed and disposed of on contest.' 6. Heard Mr. P. Chakraborty, learned counsel appearing for the appellants. Also heard Mr. D. Bhattacharya, learned senior counsel assisted by Mr. S. Das, learned counsel appearing for the respondent. 7. We have perused the evidence and the judgment passed by learned trial court. It is found that the learned trial court had disbelieved the documents i.e. the money receipts which were exhibited. It is noticed that those documents being introduced by the defendants as evidence were held not to be proved in accordance with the provisions of the Evidence Act. Learned trial Judge has held thus:- 'The documents being produced in original necessarily got admitted. But mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Learned trial Judge has held thus:- 'The documents being produced in original necessarily got admitted. But mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Contents of the document cannot be proved by merely filing in a court. (Reliance Life Insurance Corporation of India & Anr Vs. Rampal Singh Bisen (2010) 4 SCC 491 ). The document though produced in original was objected by the plaintiff during the time of recording of evidence. The Hon'ble Supreme Court, in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752 , observed:- 'The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. In the present case objection was raised by the plaintiff regarding both the documents produced by the defendant during presentation of the documents. The documents were marked exhibit tentatively recording the objection of the plaintiff. It shows that the plaintiff is denying execution of both the produced money receipt. In the present case objection was raised by the plaintiff regarding both the documents produced by the defendant during presentation of the documents. The documents were marked exhibit tentatively recording the objection of the plaintiff. It shows that the plaintiff is denying execution of both the produced money receipt. Under such circumstances the defendant requires to prove the documents as per law as the onus lies on them. As far as the legal requirement (discussed above) is concerned the defendant did not adduce any evidence to confirm such execution of money receipt by the plaintiff. None deposed corroborating payment of the money by the defendant and resultant issuance of such money receipt. It is further observed that the defendant did not adduce his bank detail or any source of the money to make such payment in cash to be probable. Going deep in to the discussion, at this juncture let us see what a money receipt is and necessary legal requirement for execution of a money receipt. Be it mentioned, at the very onset that, the document in question is a simple money receipt which is not compulsorily registrable as per the Registration Act. But, in view of the amendment of Schedule I, to the Indian Stamp Act 1899, stamp is required to be affixed on any receipt, the amount or value of which exceeds Rs. 5,000. This amendment has come w.e.f. 10.09.04. The stamp is required to be affixed in respect of receipt which has been defined as under in Section 2(23) of the aforesaid Act. Section 2 sub-section 23 of the Stamp Act defines receipt as:- Receipt includes any note, memorandum or writing-(a) whereby any money, or any bill of exchange, cheque or promissory note is acknowledged to have been received, or (b) whereby any other moveable property is acknowledged to have been received in satisfaction of a debt, or (c) whereby any debt or demand, or any part of debt or demand, is acknowledged to have been satisfied or discharged, or (d) which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person. The document produced by the defendant does not satisfy the requirement of the Stamp Act not any evidence produced in proof of its execution. Coming to the factual aspect, it is observed that there are two money receipts. The document produced by the defendant does not satisfy the requirement of the Stamp Act not any evidence produced in proof of its execution. Coming to the factual aspect, it is observed that there are two money receipts. No explanation has been given by the defendant as to why the plaintiff issued two money receipts. One of the money receipts was given on photocopy of the cheque in question. It is written on the document 'Received in Cash' and nothing else. No amount is mentioned. Moreover the defendant narrated in their W.S. that the plaintiff told them, the original cheque to have been washed away. But, the defendant did not disclose from what source the photocopy of the cheque has been obtained. Exhibit B at the very threshold deserves no consideration. Whereas Exhibit A is a cash memo appears to be given from the series of such memos kept for transactions in any business of selling and buying. The plaintiff denied the said memo to be issued from his book of memo. The memo has a number on it. The defendant did not produce that book neither made any prayer at any stage requiring production of that book of memos or the series of memos to establish that it was issued by the plaintiff. Moreover in the cross-examination of the plaintiff it was asserted by him that while he sells any item on credit no cash memo is issued. This statement made during cross-examination further contradicts the stand of the defendant. It is surprising that having made no legal paper the defendant no. 1 has paid such an hefty amount of Rs. 10,40,000/- (Rupees Ten lacs Forty thousand) to the plaintiff and that too when the plaintiff did not return back his cheque. It is also to be kept in mind that the defendant is not illiterate and is an Engineer by profession. Considering both the legal and factual aspect this Court finds that the defendant has failed to prove execution of Ex-A by the plaintiff. Hence the defendant has failed to prove that he has discharged his liability by making payment of Rs. 10,40,000/- (Rupees Ten lacs Forty thousand) to the plaintiff in cash. Accordingly the plaintiff is found to be entitled to get a sum of Rs. Hence the defendant has failed to prove that he has discharged his liability by making payment of Rs. 10,40,000/- (Rupees Ten lacs Forty thousand) to the plaintiff in cash. Accordingly the plaintiff is found to be entitled to get a sum of Rs. 10,40,000/- from the defendant as prayed for with an interest of 6% per annum until satisfaction of the claim by the defendant no. 1. The issue decided accordingly.' 8. According to us, the reasoning to arrive at the findings on the issue of payment of Rs. 10,40,000/- by the defendant to the plaintiff had been well dealt with by the learned trial Judge. We find no error of facts and law in the aforesaid findings as arrived at by learned Civil Judge. The learned trial Judge has correctly interpreted the law as regards admission of document as contemplated under the relevant provisions of the Evidence Act. 9. It is surfaced that the defendant had introduced photocopy of the cheque, which was produced in the form of secondary evidence as contemplated under Section 63 of the Evidence Act. Before introducing such document as secondary evidence, it is the mandatory obligation to the party introducing such secondary evidence so as to satisfy the foundational facts for which he is forced to introduce the secondary evidence in place of primary evidence i.e., in the instant case, the defendant has to satisfy the court about the foundational facts for which he could not produce original copy of the cheque in terms of Section 65 of the Evidence Act. Furthermore, it is transpired that plaintiff has raised objection for production of photocopy of the cheque. The necessity to raise objection is to make alert to the opposite party to remove the defects in bringing secondary evidence in proof of a particular fact in issue. In the instant case, by raising the objection, the plaintiff had alerted the defendant to prove the photocopy of the cheque in accordance with the provisions of the Evidence Act. But, the defendant failed to meet the requirements of Section 65 of the Evidence Act. 10. The offshoot of the aforesaid discussions is that the learned trial Judge neither has committed any error in interpreting the provisions of the Evidence Act nor the evidence adduced on facts by the parties to the lis. But, the defendant failed to meet the requirements of Section 65 of the Evidence Act. 10. The offshoot of the aforesaid discussions is that the learned trial Judge neither has committed any error in interpreting the provisions of the Evidence Act nor the evidence adduced on facts by the parties to the lis. Accordingly, having found no infirmity with the judgment and decree passed by learned Civil Judge, Sr. Division, West Tripura, Agartala, as stated here-in-above, the instant appeal deserves to be dismissed, and accordingly, the appeal stands dismissed. Send down the LCRs.