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Judgment
R.L. Khurana, J.—The Plaintiff, Himachal Pradesh Ex-servicemen Corporation, is a body duly incorporated under the provisions of H.P. Ex-servicemen Corporation Act.
It initially filed the present suit for the recovery of Rs. 65,30,898 along with interest at the rate of 20% per annum, however, by way of amendment of the plaint a part of the claim was given up and the claim was restricted to the recovery of Rs. 45,97,579 with interest at the rate of 20% per annum.
The Plaintiff entered into an agreement with Messrs. Associated Cement Co., Limited for the carriage of its. cement- by road transport from its plant at Gaggal in District Bilaspur to various destinations in Himachal Pradesh, Punjab, Haryana, Jammu and Kashmia? and Chandigarh, on the terms and conditions agreed upon between them and'' contained in the agreement entered between them.
The Plaintiff on 15.12.1994 further entered into an agreement with the Defendant No. 1, Union through its President, Defendant No. 2 allowing and permitting the Union Defendant No/1 to carry cement from Gaggal Cement Plant to various destinations, allegedly on the following terms:
(i) the Union will not discriminate in the carriage pf cement in allotting the work;
(ii) the permission to carry the cement was purely temporary and liable to be determined without notice and assigning any reason(s);
(iii) the Plaintiff-Corporation would not be responsible for any expenditure incurred by the Defendant Union and loss/damage caused to ACC factory during the carriage of cement;
(iv) the Defendant-Union would keep its proper accounts and the funds would be used for the welfare of the Ex-servicemen transporters and
(v) the Defendant Union would provide sufficient number of trucks for the carriage of cement as per demand of ACC Gaggal Plant, Barmana, every day.
Since the Plaintiff was not satisfied with the working and functioning of the Defendant Union, it on 23.3.1999 cancelled the agreement dated, 15.12.1994.
It appears that there was some inter-se dispute between the Defendant No. 1 Union and some of its members Shiv Ram and Ors. which resulted, into the filing of a Civil Suit in the Court of Senior Sub Judge, Bilaspur by the Defendant No. 1 Union against the said Shiv Ram and others. In such suit the Plaintiff was not a party. In such suit, Defendant No. 3, Anil Kumar was appointed as a Local Commissioner by the Court "to conduct Pukar and collect Parchi Fee and also to receive demand of the trucks from the ACC Barmana on behalf of the Plaintiff-Corporation daily from 8.30 a.m. to 10 a.m. starting from 19.4.1998. The Local Commissioner appointed was further directed to deposit an amount of Rs. 30 per tr from the "Parchi Fee" realised with the Plaintiff Corporation and the balam amount of "Parchi Fee" to be deposited in Court after deducting his which was fixed at Rs. 1,000 per diem.
It was pleaded by the Plaintiff that many irregularities were committe by Defendant No. 3 in continuation of the irregularities committed earlied by Defendants No. 1 and 2. Such irregularities resulted in raising of be notes worth crores of rupees in June, 1999 by the Associated Cement Compay against the Plaintiff. Such debit notes were in respect of the losses suffer by the Cement Company either due to non-delivery, or short deliver of the cement at the respective destinations by the truck operators, wh were members of the Defendant Union. The Plaintiff took up the matter with the Cement Company. Some amount towards such loss was pa and as on 9.9.1999 the total liability towards the loss inclusive of interest at the rate of 20% per annum was arrived at Rs. 65,30,898. The Defendant were called upon to pay such amount and since they failed to pay the same the present suit for recovery of the said sum of Rs. 65,30,898 alp with future interest at the rate of 20% per annum came to be filed 14.10.1999.
During the pendency of the suit, an application being OMP N 80 of 2001 was made by the Plaintiff on 5.1.2001, Under Order 6 Rule 1 Code of Civil Procedure, for amendment of the plaint. "One of the amen ment sought was for giving up a part of the claim. It was pleaded in par 2 of the said application as under:
That after the filing of the suit, the Plaintiff/applicant has got an amount of Rs. 19,33,319 from the Defendants directly and an amount Rs. 45,97,579 is outstanding alongwith interest at the rate of 20 per annum from 9.9.1999.
Such amendment was allowed by this Court on 14.5.2001. Resultant the Plaintiff gave up its claim to the extent of Rs. 19,33,319 and restrict its claim in the suit to the extent of Rs. 45,97,579 as against the origin claim of Rs. 65,30,898.
The suit is being resisted and contested by Defendants No. l 3. Two separate written statements, that is, one by Defendants No. l and 2, and the other by Defendant No. 3 has been filed.
Defendants No. l and 2 vide their written statement dated 27.6.2 denied having entered into any agreement With the Plaintiff on 15.12.1999 It was pleaded that the Defendant No. l Union was in unregistered be and it came to be registered under the Trade Unions Act, 1926 only 30.5.1996. An agreement was entered into with the Plaintiff only on 12.9.1" The litigation between Defendant No. l and Shiv Ram and others was mitted. It was also admitted that Defendant No. 3 was appointed as Commissioner in such litigation to carry out the limited functions assigent to him by the Court. The Defendants No. 1 and 2 denied their liab in respect of the suit amount or the loss, if any, suffered by the Cement Company on account of non/short delivery of cement at the respective destinations by the truck operators. It was pleaded that carriage charges were being paid/disbursed to the respective truck operators by the Cement �Company through the Plaintiff on the basis of the freight bills submitted by them. No payments were being made to or through the Defendant Union. In case of loss due to non/short delivery of cement, the Plaintiff could have withheld the payment of freight charges in respect of the defaulting truck operators. In any case, only the defaulting truck operators were liable in respect of such losses, if any. Preliminary objections as to maintainability of the suit, limitation and the suit being bad for misjoinder/non-joinder ;of necessary parties were also raised. Defendant Nos. 1 and 2 further prayed that they be awarded special costs u/s 35A, Code of Civil Procedure, since the suit as against them, to the knowledge of the Plaintiff, is false and vexatious.
Defendant No. 3 vide his written statement dated 25.6.2000 denied its liability towards the suit amount. He admitted that he was appointed as Local Commissioner by the Court. It was pleaded that he had limited (functions to perform, namely, to conduct "Pukar", collect "Parchi Fee", receive demands for the trucks from the Cement Company, to deposit Rs. 30 per truck out of the "Parchi Fee" received with the Plaintiff as its share, and to deposit the balance amount of "Parchi Fee" collected with the court after adjusting his fee of Rs. 1,000 per diem, later on reduced to Rs. 650 per diem. The functions assigned to him were discharged by him diligently and to the best of his ability. There have been no complaints about his functioning. Save and except the functions assigned to him by the Court, he had nothing to do either with the affairs of the Plaintiff or that of Defendant No. 1, Union. It was pleaded that the suit was bad as against him since the same suffered from the vice of mis-joinder of parties.
On the pleadings of the parties, following issues were framed on 27.11.2000:
Whether the suit is not maintainable, as alleged? OPD
Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged?OPD
Whether the suit is within time? OPP
Whether the Plaintiff is entitled to any amount, if so, from whom and to what extent? OPP
Whether the claim of the Plaintiff is false and vexatious, as alleged and the Defendants are entitled to special cost u/s 35A Code of Civil Procedure? OPD
Relief.
I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under:
Issue No. 4:
The case of the Plaintiff is that it had entered with an agreement with Defendant No. l through Defendant No. 2 on 15.12.1994 for the carriage of cements from Barmana to various destinations on the terms and con ditions contained therein. One of the term contained in the agreement bellent that the Defendant No. l Union would be liable for any loss/damage suffer by the Cement Company during transit on account of non/short delived of cement at the respective destinations or on account of any other reason The suit amount is alleged to represent the extent of loss sustained by Cement Company on account of non/short delivery of cement at the destinations by various truck operators, who are members of the defendan No. 1 Union, and the interest on such amount of loss.
The suit of the Plaintiff as laid, is primarily based on the agree ment alleged to have been entered into between the Plaintiff and Defendant No. 1 Union through Defendant No. 2 as its President on 15.12.1994.
The alleged agreement dated 15.12.1994 has not seen the light the day. Such agreement has not been produced in evidence by the plaintion In the absence of the agreement neither the terms and conditions containe therein nor the execution thereof stand proved.
Section 61, Indian Evidence Act, 1872, provides that the content of the document(s) may be proved either by primary evidence or by seconda evidence. Section 62 of the said Act defines "primacy evidence" as meant; the document itself produced for the inspectiojci of the court. Section of the said Act defines "secondary evidence" as under:
Secondary evidence means arid includes:
(1) Certified copies given under the provisions hereinafter contained
(2) Copies made from the original by mechanical process which themselves ensure the accuracy of the copy, and copies compare with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them; and
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
A combined reading of Sections 61 and 62, Evidence Act, show that the contents of a document must primarily be proved by the production of the document itself for inspection of the court. The truth of its content however, has to be proved. Section 64 of the Evidence Act further lays d" that documents must be proved by primary evidence.
No doubt, secondary evidence relating to documents cart be under the law in view of Section 65 Evidence Act, the party seekt produce such secondary evidence has to make out a case therefore and leave obtained from! the court.
In the present case, no attempt has been made by the Plaintiff in terms of Section 65 to produce secondary evidence for proving alleged agreement dated 15.12.1994.
At this stage, it will also be appropriate to refer to Section 91, Evidence Act, which provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to a form of document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other desposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act.
In view of the provisions contained in Section of Evidence Act, the moment a contract/an agreement is shown to have been reduced to ''writing/it is not open to any of the patties these for to seek to prove the terms of such contract/agreement except by produceing the document itself or or secondary evidence of it. Therefore, in the present case in the absence of the agreement dated 15,12.1994 no oral evidence led by the Plaintiff to " prove such agreement and or the contents thereof can be looked into.
Since the Plaintiff has failed to prove the. terms of the alleged agreement dated 15.12.1994 where Defendant No. . 1 Union agreed to make good the loss, if any suffered by the Cement Company due to non/short delivery of cement, the Plaintiff is not entitled to recover any amount from the Defendants.
There is another significant aspect of the case. As per the Plaintiff''s own case, it had entered into an agreement with the Associated Cement Co. Ltd., for carriage of its cement from Barmana to various destinations. Even such agreement has not been proved on the record- The1 terms and conditions of such agreement are not known in order to show'' as to whether Defendant No. 1 or the Plaintiff or the respective truck operator would be responsible to the Cement Company for the loss suffered due to non/short supply of cement at the destination(s)
The Plaintiff, as pointed out. above, in application made for.amendment of the plaint, being CMP No. ''80 of200l" has admitted that it had recovered a sum of Rs. 19,33,319 directly from the defaulting truck, operators and as such claim to that extent''was given up- Therefore, if the respective truck operators were responsible for the kiss due non/short supply of cement at the destination(s), the present Defendants, cannot be fastened with any liability.
PW 7 Shri Balwan Singh is the Accountant'' of the Plaintiff and responsible for maintaining the accounts of the, Plaintiff. During his ex amination-in-chief he has deposed ;
I am maintaining the accounts of the Plaintiff-corporation. The payment used to be received by the Plaintiff-corporation from the cement factory Barmana. Authorities of cement factory used; deduct amount from the freight bills vide debt notes.
During the course of cross-examination, PW 7 has admitted: the following terms:
Freight bills used to be prepared by me. It is correct that freight char used to be paid to the individual transporter on the same bet received from the cement factory. It is correct that deduction wif regard to short/non supply of cement used to be deducted'', the cement factory from the freight bills of the individual transporter.... It is correct that whatever amount was due, due to shor non supply of cement stands deducted from the freight bills Z the ACC.
If as per the Plaintiff''s own showing the amount due towar loss as a result of non/short supply of cement stood deducted from t freight bills of the respective truck operator(s), it is not known as to ho the Plaintiff is entitled to recover the same from the Defendants.
30.Even otherwise, assuming that some amount towards such lojj is still due to the Cement Company, it is only the said company wh can recover the same from the person/party liable for the same. The ro| of the Plaintiff as between the Cement Company and the Defendant No. Union or the truck operators is only that of an agent. While acting. an agent of the Cement Company it cannot sue in its own name to recove the amount due to the Cement Company. Similarly acting as an agen of Defendant No. l Union or the truck operators it cannot sue in its ow name to recover the amount, if any, due to Defendant No. l or the true, operators. Nothing has come on the record to show that any amount toward such loss has been recovered by the Cement Company from the plainti so as to give a right to it to recover the same either from the Defendant or the defaulting truck operators. The issue is decided against the plainti
Issue No. 1
In view of the findings recorded under issue No. 4 above, the present suit at the instance of the Plaintiff is not maintainable. The issue is decided in favor of the Defendants.
Issue No. 2
The suit as laid, on the face of it is bad for mis-joinder of d fendants No. 2 and 3. Defendant No. 2 is the President of Defendant N, 3 Union while Defendant No. 3 was appointed as a Commissioner by t" Court to perform limited functions. They are not personally liable for t affairs of Defendant- No. 1 Union.
The suit is also bad for non-joinder of the defaulting truck operate from whom the amount of loss due to non/short supply of cement at f destination(s) is to be recovered. In view of the findings recorded urtd issue No. 4 above that Defendant No. 1 Union is not liable, the liabili if any, would be that of such defaulting truck operators. The issue is decided in favour of the Defendants.
Issue No. 3
No evidence has been led to show as to for which period the suit amount pertains. The Plaintiff in para 13 of the amended plaint has averred that the cause of action arose to the Plaintiff in the years 1996, 1997,1998 and 1999 when the loss were caused to the Plaintiff. However, there is nothing on the record to suggest as to what was the extent of loss in each particular year. The suit was filed on 4.10.1999. Admittedly, the period of limitation for a suit like the present one is three years from the date the amount claimed became due. In the absence of relevant pleadings and evidence, the present suit cannot be said to be within time. The issue is decided against the Plaintiff.
Issue No. 5
This issue was not pressed by the learned Counsel for Defendants. The same is as such decided against the Defendants.
Relief
As a result of the findings recorded under issue Nos. 1 to 4 above, the present suit fails and the same is accordingly dismissed with costs.