Shanker Shah Ishar Dass vs G.N.Nagash

Vide order dated 5.4.1994 the defendant was proceeded against exparte.

In this suit the plaintiff has claimed an amount of Rs. 2,55000 against the defendant for price of the gold allegedly sold by him to the defendant

and for interest etc. on the unpaid amount. The plaintiff's case is that the defendant purchased gold ornaments from him on 27.4.1988 and on

2.8.1988. Despite promise to pay the amount and despite his having executed certain documents, the money was not paid. Various efforts by the

plaintiff to recover the money from the defendant having failed, the plaintiff had no option, but to file the present suit in this court. It is also alleged

that the defendant had issued two post dated cheques in the name of the plaintiff, but these cheques on being presented to the Bank were bounced.

The following issues were framed vide order of the court dated December 16, 1993:

Whether the defendant gave to the plaintiff some old gold ornaments and, while seeking to recover the principal amount of Rs. 1,46,009/, the

plaintiff is under an obligation to either return these old ornaments or to adjust their value in the price of gold ornaments sold by it to the

defendant?. OPD

Whether the plaintiff is entitled to recover the interest from the defendant on the principal amount, if so, at what rate and for what period?

OPP

Relief"".

After the defendant was proceeded against exparte on 5.4.1994, the solitary witness produced by the plaintiff, PW Deepak Jain was examined

on 1.6.1994. Plaintiff's evidence was closed on that date and the matter was posted for hearing.

In the statement recorded on 1.6.1994, PW Deepak Jain who claims to be a partner in the plaintiff's firm stated that the defendant purchased

ornaments from the plaintiff on 27.4.1988 and 2.8.1988 vide two vouchers No. 67 and 190bearingtheaforesaidtwo dates. Cash Vouchers were

also drawn up and the defendant had signed on the cash vouchers. Entries regarding the transaction were made in the Register maintained in form

No. GS12 vide S.No. 54 and 58. According to this witness, the sale price of the ornaments was Rs.1.46 lakhs. The witness also stated that two

post dated cheques were issued, but these could not be encashed. Two letters were also written by the defendant to the plaintiff promising to pay

the amount in question, but the amount was not paid.

Interest was claimed at the rate of 30% because that, according to the witness was the prevalent market rate of interest in India. The entire case of

the plaintiff, therefore, is dependent upon the sole testimony of PW Deepak Jain. This statement by itself is not based on any personal knowledge,

but is dependent upon the documents, mention of which has been made in the statement itself. Of particular relevance are vouchers NO. 67 dated

27.4.1988 and 190 dated 2.8.1988. Of relevance also are claimed to be gold issue vouchers purportedly in form GS12, which also were claimed

to have been issued on 2.8.1988. Mention is also made in this statement of two post dated cheques, but no mention has been made about the

particulars of the cheques, viz; their dates of issue, the amount or the bank etc. The plaintiff therefore, for recovery of money as price of gold

ornaments sold by it to the defendant rests solely on the documentary evidence which is claimed to be the basis of the transaction between the

parties. PW Deepak Jain has not in any manner proved the case of the plaintiff by his oral evidence. He has only brought out the fact regarding the

execution of certain documents or their existence at the time of the sale of the gold ornaments to the defendant and thereafter. Section 61 of the

Evidence Act reads thus:

The contents of documents may be proved either by primary or by secondary evidence"".

Section 62 of the Evidence Act defines primary evidence to mean the documents itself produced for the inspection of the court. Section 64 lays

down that the documents must be proved by the primary evidence except in the cases hereinafter mentioned, which find place in section 65

wherein it has been laid down that the secondary evidence may be given of the existence, condition or contents of the documents in a few cases

which have been quoted and referred to in various parts of this section. It is not the case of the plaintiff that the documents, a mention of which has

been made in the plaint as well as in the testimony of PW Deepak Jain either do not exist or that they cannot be produced in the court for some

reasons or the other. If, therefore, documents which are the basis of the plaintiff's claim and which alone could have proved the facts regarding the

sale of gold ornaments to the defendant, the price of the ornaments etc; were in existence and were in possession of the plaintiff, the production of

these documents by the plaintiff in the adopting standard mode of proof was the only method by which the plaintiff could have established its claim

to recover the money from the defendant. In the present case, however, no such attempt has been made by the plaintiff nor has the plaintiff taken

any step to establish in the court that, for one reason or the other it was entitled to either produce the original documents in the court or to even

prove the copies filed by it along with the plaint at the time the suit was originally presented. I am saying so because I find on the file of the case

photo copies of some documents from page 16onwards. I also find that at pages 1718and 1920 are the photo copies of some documents which

appear to be ""gold issue vouchers"" and ""vouchers"". That alone can be said because all that I can say is that these documents ""appear"" to be the

ones which one can only look at the face of the documents. In any case these documents are only photo copies, admittedly and undoubtedly, and

these have not been proved in any manner by the plaintiff. Neither these documents have been exhibited as plaintiff's evidence nor have these been

admitted into evidence, formally or informally nor has PW Deepak Jain in any manner made any attempt to have compared them with the original

documents which he could have easily done and stated during the course of his examination as a witness in the court. Why did the plaintiff choose

not to prove these documents or exhibit them or admit them into evidence has not at all been explained by the plaintiff in any manner. The total

failure of the plaintiff, therefore, to produce the primary evidence of documents in support of its claim of having sold gold ornaments to the

defendant, and the entire case of the plaintiff being based on these documents alone and on nothing else, the suit of the plaintiff must fail which is,

accordingly hereby dismissed, but without any order as to costs.