A. Nitin and Co. vs Shri Jatinder Kumar

Valmiki J Mehta, J.—The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 27.3.2001 whereby the suit of the Appellant/Plaintiff for recovery of balance said to be due on account of share purchase transactions entered into between the parties was dismissed. The main ground and the only ground on which the trial Court has dismissed the suit is that the Appellant/Plaintiff failed to file any contract notes to prove that the Respondent/Defendant had entered into the contract for purchase of shares of M/s. JCT Limited and M/s Orkay Silk Mills and with respect to which transactions the suit was filed.

In law a mere oral statement, on being controverted, cannot discharge the onus of proof. In the present case, in the absence of any documentary evidence of the existence of contract between the parties, for purchase of shares of JCT limited and Orkay Silk Mills, the trial Court has held that the Appellant/Plaintiff failed to discharge its onus of proof and therefore it could not claim the value of difference of the shares as ordered by the Respondent/Defendant and the market rate at which those shares were subsequently sold by the Appellant/Plaintiff. The relevant findings of the trial Court in the impugned judgment and decree are contained in paras 13 to 16 which read as under:

Admittedly, in the given case, there was no oral or documentary evidence to prove that the deft ever issued instruction to issue the alleged shares at the given price. There was no offer and acceptance which are necessary ingredient of a contract. Thus, there was no contract in the eyes of law to bind the parties to any terms of sale and purchase of the alleged shares. As in the given, nor there was any "Contract note" as mentioned above. Though, apparently to this extent, the suit of the Plaintiff was not maintainable; Yet, the case of the Plaintiff being based upon running account was well maintainable, for the amount of alleged shares.

Issue is accordingly drawn against the Plaintiff and in favour of the deft.

Issue No. 2:

Whether the Plaintiff is entitled to recover the amount claimed in the plaint, if so, what amount? OPP

Issue No. 3:

Whether the Plaintiff is entitled to claim interest is so, at what rate and which period? OPP.

Both the issues being inter-linked, for convenience are taken up together.

The "onus probandi" of the issue was upon the Plaintiff.

As discussed above, under the head of issue No. 1, the Plaintiff has failed to establish that the deft ever placed any instruction for purchase of 2000 shares of M/s J.C. T. Ltd. and M/s Orkay Silk Mills each and that he was liable to pay the difference between the purchase price and sale price. Ironically, the Plaintiff has not differentiated the amount of these shares and the amount otherwise recoverable from the deft.

The Ld. Counsel for the Plaintiff has laid emphasis upon the contents of Ex.PW1/6 and contended that this showed an admission on the part of the deft that some amount was payable by him as on 17.7.92. He further submitted that as per statement of account maintained by the Plaintiff in due course of its business qua the deft, an amount of Rs. 2,53,129/- was due and payable on 11.8.92. The Ld. Counsel for the deft contradicted the submissions made by the Ld. Counsel for the Plaintiff stating that there was no admission forth the name in the letter Ex.PW1/6. He further submitted that there was nothing to infer that there was open and running account between the parties and that the claimed amount was due and payable.

While going through the contents of Ex.PW1/6, I find that there was no admission worth the name that there was open running account between the parties and that there was any admission on the part of the deft that he was liable to pay the claimed amount of Rs. 2,53,013.20 P. In fact, prior to this, neither any demand letter nor any statement of account was sent by the Plaintiff asking the deft to make the payment of the outstanding amount. It was only vide Ex.PW1/5 a letter dt. 11.8.92 that it was alleged by the Plaintiff that "we have squared up your out-standing purchases on 11.8.92 and enclose please find settlement bill. We also enclose herewith statement of A/c showing a sum of 4 Rs. 2,53,013.20 P due to us from you. Which you are requested to send us the payment immediately.? From Ex.PW1/5 no plausible inference can be drawn that this amount was due and legally payable by the deft. The established principle is that the Plaintiff not only must plead its case but also must prove it to the hilt.

I do not find any illegality or perversity in the impugned judgment and decree which calls for interference by this Court in appeal inasmuch as it is the Plaintiff who comes to Court must discharge the onus of proof upon it so as to claim a money decree. The trial Court has allegedly held that onus of proof was not discharged and there is nothing in the letter Ex.PW1/6 relied upon by the Appellant/Plaintiff to hold that the same contains an admission of a specific liability/amount. I have gone through the letter Ex.PW1/6 which is dated 17.7.1992. All that this letter suggests is that there were transactions between the parties, however, there is no admission of any crystallized amount of liability by the Respondent/Defendant by means of this letter dated 17.7.1992, Ex.PW1/6.

In view of the above, I do not find any merit in the appeal, which is dismissed, leaving the parties to bear their own costs. Trial Court record be sent back.