JUDGMENT 1. Appellant/plaintiff feeling aggrieved by the judgment of trial Court on the file of XXVII Additional City Civil Judge, Bengaluru in O.S.No.3623/2013 dtd. 25/11/2009, preferred this appeal. 2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience. 3. The factual matrix leading to the case of the plaintiff can be stated in nutshell to the said effect that plaintiff by order of entrustment bearing No.KSTDC/MD/1563/99-2000 dtd. 10/9/1999 permitted the defendant to operate Bengaluru - Hospet, Hospet and Hampi T.B. Dam sight seeing tours with the acceptance of terms and conditions laid down in the Letter of Undertaking dtd. 6/9/1999. The defendant was allotted two coaches bearing No.KA-01-9335 and KA-01- 9271 for this purpose. The defendant had agreed to pay Rs.500.00 per day for operating Hampi - T.B. dam sight seeing tours, irrespective of occupancy and operation of coaches. As per the statement furnished by the incharge CAAO of the Corporation, the total collection due to the Corporation from defendant for the period from 13/9/1999 to 13/9/2000 is Rs.25, 84, 223.00. The defendant has paid only Rs.10, 01, 117.00. The defendant is due for remaining amount and inspite of letter/correspondence of plaintiff dtd. 5/7/2000 and 21/8/2000, the defendant has not paid the amount. The defendant has misappropriated the funds of plaintiff- Corporation. The incharge Special Officer (workshop) has reported that the conditions of the vehicles which were returned by the defendant was very bad with damages and dents all over the vehicles. The total bills is worth Rs.34, 800.00. The defendant is in due of Rs.9, 67, 689.00 towards revenue collection. The allegation of misappropriation against the defendant has been proved in the disciplinary proceedings. Therefore, on these grounds, plaintiff-Corporation filed the suit for recovery of money due to it as claimed in the suit. 4. In response to the suit summons, the defendant has appeared through counsel and filed written statement admitting the orders of plaintiff-Corporation dtd. 10/9/1999 and defendant was entrusted with two coaches for the purpose of operating the same from Bengaluru - Hospet sight seeing tours. However, defendant has denied that he is due of suit claim. It is the case of the defendant that he has paid the entire amount due to the plaintiff. 10/9/1999 and defendant was entrusted with two coaches for the purpose of operating the same from Bengaluru - Hospet sight seeing tours. However, defendant has denied that he is due of suit claim. It is the case of the defendant that he has paid the entire amount due to the plaintiff. The plaintiff has made false allegations against defendant for having caused damages to the vehicle and incurred expenses for repairs of both the coaches. The decision of disciplinary authority in holding the defendant guilty of the charges leveled against him has been challenged before this Court in W.P.No.47099/2004, which is still pending. Therefore, prayed for dismissal of the suit. 5. The trial Court on the basis of the pleadings of both the parties has framed necessary issues. Plaintiff to prove its case relied on the evidence of P.W.1 and the documents at Exs.P1 to P5. The defendant has relied on his own evidence D.W.1 and no documents were marked on behalf of defendant. The trial Court after hearing the arguments of both sides and on appreciation of evidence has dismissed the suit of plaintiff. 6. Heard the arguments of both sides. 7. After hearing the arguments of both sides and on perusal of trial Court records and judgment, following points arise for consideration:- i) Whether the finding recorded by the trial Court on Issue Nos.1 and 2 is perverse, capricious and legally not sustainable ? ii) Whether any interference of this Court is required ? 8. On careful perusal of oral and documentary evidence placed on record by both the parties to the suit, it would go to show that the plaintiff by order dtd. 10/9/1999 has permitted the defendant to operate Bengaluru - Hospet, Hospet and Hampi T.B. dam sight seeing tours with the acceptance of terms and conditions laid down in the Letter of Undertaking dtd. 6/9/1999 and defendant was allotted two coaches bearing No.KA- 01-9335 and KA-01-9271 for this purpose. Further the defendant has agreed to pay Rs.500.00 per day for operating Hampi - T.B. dam sight seeing tours irrespective of occupancy and operation of coaches, has not been denied by the defendent. 9. It is the case of plaintiff that, defendant has not paid the amount collected for the period from 13/9/1999 to 13/9/2000 which according to the plaintiff is worth Rs.25, 84, 223.00. The plaintiff has called upon the defendant by letter dtd. 9. It is the case of plaintiff that, defendant has not paid the amount collected for the period from 13/9/1999 to 13/9/2000 which according to the plaintiff is worth Rs.25, 84, 223.00. The plaintiff has called upon the defendant by letter dtd. 5/7/2000 and 21/8/2000 to pay the said amount. The basis for such claim of the plaintiff is calculation sheet which was prepared by the Chief Accounts Officer of plaintiff-Corporation and the claim towards damages is based on the report of S.Mohan Krishna, Ex.P5. The defendant claims that he has paid all the money due to the plaintiff and he is not in arrears of any amount as claimed by the plaintiff. 10. The vital document to the claim of plaintiff is Ex.P2, Letter of Undertaking executed by the defendant which has been accepted by the plaintiff and allotted two coaches bearing No.KA-01-9335 and KA-01-9271 for the said purpose. In view of clause 7 of Ex.P2, it would go to show that defendant has agreed to settle the payment as agreed upon once in fifteen days for both the coaches. If he fails to make payment within the scheduled date, the coaches can be withdrawn from the Corporation without assigning any reasons thereon. Indisputably the plaintiff at any point of time has not withdrawn the coaches from the operation, due to default in depositing the collection amount continuously for a period of fifteen days. 11. In this context, if the cross-examination of P.W.1 is perused, then it would go to show that suit claim is made on the basis of report submitted by Chief Accountant and Audit Officers of plaintiff-Corporation. P.W.1 has admitted that the details of the claim has not been shown in the plaint averments or in the affidavit evidence regarding the defendant is in due of Rs.10, 01, 117.00. P.W.1 has further admitted that the plaintiff has not filed accounts statement pertaining to the Corporation in the suit. It is pertinent to note that plaintiff is a Corporation and expected to maintain the proper accounts regarding the income and expenditure. The plaintiff-Corporation must necessarily have the document regarding the accounts maintained regarding income and expenditure. However, the best available evidence has been withheld by the plaintiff Corporation and not chosen to produce the accounts book and statement to substantiate the suit claim to which the defendant is answerable. The plaintiff-Corporation must necessarily have the document regarding the accounts maintained regarding income and expenditure. However, the best available evidence has been withheld by the plaintiff Corporation and not chosen to produce the accounts book and statement to substantiate the suit claim to which the defendant is answerable. P.W.1 has however admitted that the period for which defendant has committed default is also not shown in the plaint averments and no documents have been produced to substantiate the said fact. The plaintiff in the plaint averments itself has pleaded that defendant has paid only Rs.10, 01, 117.00. If the accounts books and statements have been produced by the plaintiff Corporation, the same could have been ascertained. P.W.1 when specifically asked as to why plaintiff- Corporation did not exercise the right to withdraw the operation of buses by the defendant in exercise of Clause No.7 of Ex.P2 to which he has answered that without looking to the records he cannot say. P.W.1 further admits that in Ex.P.3 no particulars of amount withheld by the defendant has been given. On the contrary, the defendant was only called upon by the plaintiff to remit the amount outstanding by letter dtd. 5/7/2000. The same is another reminder dtd. 21/8/2000. However, P.W.1 for the same question referred above again in Para No.9 of deposition, has admitted that "we have not withdrawn the bus facility provided to the defendant after coming to know of the default committed by the defendant". Insofar as for not exercising power in terms of Clause 7 of Ex.P2 witness chose to remain silent without answering. Therefore, from the said evidence on record and the admission of P.W.1, it would go to show that no document evidencing the period of default committed by the defendant and to which amount he is liable to pay has been produced by the plaintiff. On the other hand, the plaintiff chose to rely on the calculation sheet said to have been prepared by the Chief Accounts Officer. The author of the said document Ex.P5 has not been examined, nor any documents have been produced evidencing the amount claimed in the calculation sheet. On the other hand, the plaintiff chose to rely on the calculation sheet said to have been prepared by the Chief Accounts Officer. The author of the said document Ex.P5 has not been examined, nor any documents have been produced evidencing the amount claimed in the calculation sheet. There is also no evidence to show that plaintiff-Corporation has made known this fact to the defendant by serving the calculation sheet and provided an opportunity inspecting the books of accounts to substantiate the claim of plaintiff that the defendant is in arrears of the amount for the period from 13/9/1999 to 13/9/2000 amounting to Rs.25, 84, 223.00 as claimed in the suit. 12. Insofar as claim for damages are concerned, plaintiff contended that, at the time of handing over the two coaches entrusted to the defendant, there were lot of damages and dents on the vehicles and the tyres with other parts were required to be changed and the estimated charges is for Rs.46, 723.00. On the first available opportunity, when the defendant has returned the two vehicles to the plaintiff-Corporation, then in the presence of defendant the authority taking possession of two buses should have made assessment noting the damages with signature of defendant, so as to bind him to answer for the damages. However, no such efforts have been made by any Officials of the plaintiff-Corporation to substantiate it's claim for damages. The amount claimed towards revenue collection and the damages by the plaintiff-Corporation is based on its own calculation sheet-Ex.P.5 and the report and at any point of time that has not been brought to the notice of the defendant. The plaintiff-Corporation has also not produced any documents to prove the said facts. 13. D.W.1 during the course of his evidence has deposed that he is not in arrears of any amount to the plaintiff-Corporation and not caused any damages to the buses entrusted to him at the time of handing over the same to plaintiff-Corporation. The defendant though was subjected to cross-examination, nothing worth material has been brought on record do discredit his evidence. Above all the claim of plaintiff is based on documentary evidence and the best available documentary evidence in the custody of the plaintiff, has not been produced before the trial Court to substantiate the claim of the plaintiff. The defendant though was subjected to cross-examination, nothing worth material has been brought on record do discredit his evidence. Above all the claim of plaintiff is based on documentary evidence and the best available documentary evidence in the custody of the plaintiff, has not been produced before the trial Court to substantiate the claim of the plaintiff. Other than the calculation sheet said to have been prepared by the Chief Accounts Officer of the plaintiff- Corporation and the report of one Sri.S.Mohan Krishna, there is no any evidence on record to substantiate the claim made by the plaintiff. The same is also not been brought to the notice of defendant at any point of time. It is a primary duty of the plaintiff to prove the facts pleaded in the plaint to seek decision of the Court to give finding and for grant of relief claimed in the suit. The plaintiff by virtue of oral and documentary evidence placed on record has failed to substantiate that defendant is in due of amount as claimed by the plaintiff-Corporation. It is true that the departmental enquiry was conducted against the defendant for misappropriation of funds where he was found guilty and same has been challenged by the defendant before this Court in W.P.No.47099/2004. P.W.1 admits in cross-examination at para No.10 that plaintiff- Corporation has also initiated criminal action against the defendant before ACMM in C.C.No.8330/2002 and defendant has been acquitted in the said criminal case. There are two versions working against defendant that, in disciplinary proceedings he was found guilty and in criminal proceedings he has been acquitted for the allegations of misappropriation of funds of plaintiff- Corporation. It is true that the finding of criminal Court is not binding on Civil Court and has to independently decide the claim as made out in the suit. 14. In view of the reasons stated above, it is observed and held that plaintiff-Corporation has failed to prove the evidence on record that, defendant is in due to suit claimed by the plaintiff. 15. The trial Court has rightly appreciated the oral and documentary evidence placed on record. The findings recorded by the trial Court are based on legal evidence and same does not call for any interference by this Court. Consequently, proceed to pass the following: ORDER Appeal filed by the appellant is hereby dismissed as devoid of merits. 15. The trial Court has rightly appreciated the oral and documentary evidence placed on record. The findings recorded by the trial Court are based on legal evidence and same does not call for any interference by this Court. Consequently, proceed to pass the following: ORDER Appeal filed by the appellant is hereby dismissed as devoid of merits. Registry to send back the records to Trial Court with a copy of this order.