Allowed

Mahendabhai Jethalal Vyas v. Gurudarshan Rajendrasinh Shokhi Heir of Decd. Rajendrasing Masasing Shokhi

Gujarat HC6 Aug 2018FA/469/2017

Case brief

AI extract

What is this about?

In a first appeal regarding a subcontract for road construction, this court held that the trial court erred in relying on a plaintiff's signed letterhead produced by defendants to admit cash payment. Finding the document fabricated and lacking supporting evidence of the large sum, the court allowed the appeal, quashed the dismissal, and decreed the owed amount with interest.

What did the court decide?

The impugned judgment and decree dated 30/09/2016 are quashed. The suit is allowed and decreed. Defendants shall pay Rs.17,65,000/- plus 9% interest per annum.

Mahendabhai Jethalal Vyas Vs Gurudarshan Rajendrasinh… — Specific Performance | Gujarat HC (2018)

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C/FA/469/2017 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 469 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	NO
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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MAHENDABHAI JETHALAL VYAS

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Versus

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GURUDARSHAN RAJENDRASINH SHOKHI HEIR OF DECD. RAJENDRASING MASASING SHOKHI

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Appearance:

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MR HRIDAY BUCH(2372) for the PETITIONER(s) No. 1 MR KASHYAP R JOSHI(2133) for the RESPONDENT(s) No. 1,2,3 MR RITURAJ M MEENA(3224) for the RESPONDENT(s) No. 6 RULE SERVED(64) for the RESPONDENT(s) No. 5

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UNSERVED EXPIRED (R)(69) for the RESPONDENT(s) No. 4

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 06/08/2018 ORAL JUDGMENT

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This First Appeal under Section-96 of the Code of Civil Procedure, 1908 at the instance of the original plaintiff and is directed against the

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Page 1 of 13

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judgment and decree dated 30/09/2016 passed by the Principal Senior Civil Judge, Bharuch in the Special Civil Suit No.229 of 1998 filed by the appellant herein, which came to be dismissed.

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The facts giving rise to this First Appeal have been recorded by the Court below in the Paragraphs – 1, 2 and 3. The same are as under:-

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2.1 The plaintiff is doing the business of construction at Bharuch. The defendants nos.1 to 4 are the heirs of Rajendrasing Sokhi. O.N.G.C. Ankleshwar had given contract to Rajendrasing Masasing for constructing road of Ankleshwar and he had given sub contract to plaintiff for the said work by executing written agreement on 30/3/1996. The plaintiff had worked as per the contract and there are dues of Rs.7,15,762/- payable by deceased Rajendrasing Shokhi to the plaintiff. The plaintiff had accepted the liability of Rs.7,05,000/- of deceased Rajendrasing and also paid that amount to Speedking Enterprise on behalf of Rajendrasing. As per the settlement of account between them, the deceased Rajendrasing had given two post dated cheque dated 10/10/1998 and 2/11/1998 of Rs.9,00,000/- and Rs.8,65,000/- respectively but suddenly Shri Rajendrasing expired on 9/9/1998 due to heart attack. As the defendants nos.1 to 4 are the heirs of deceased Rajendrasing, hence, he has informed the defendants nos.1 to 4 for recovering the due amount of deceased father Rajendrasing but they have not given any support, hence, he has requested the defendants nos.5 to 6 for not releasing the payment of Speed King Enterprise but the defendants nos.5 to 6 have informed to take the stay order from the court. So he could not recover the said due amount. The defendants nos.1 to 4 are trying to dispose off the immovable and movable properties of deceased Rajendrasing i.e.(i) Property No.213, Shakti nagar, Gujarat Housing Board, Bharuch of Rs.7,85,400/-, (ii) Property No.214,

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Shakti nagar, Gujarat Housing Board, Bharuch of Rs.9,81,000/- (iii) (Vehicle) Jeep No.GCL 8922 & Maruti Zen GJ-16/C-3866 of Rs.4,00,000/(iv) Amount of rs.2,23,000/- Rs.1,44,000/-, Rs.1,30,000/-, Rs.75,000/-, Rs.1,54,689 deposited on different dates in the account of O.N.G. Ankleshwar (v) Fixed Deposit in State Bank of India, ONGC Ankleshwar Baruch, bearing No.F.D.R.A./32 No.612039 of Rs.1,00,000/- of dated 16/8/2000 (vi) Bill due from O.N.G.C. of Rajendrasing Shokhi and after disposing of the said properties the defendants nos.1 to 4 are trying to go to their native – Punjab. Therefore, the plaintiff has given separate application and prays for attachment before judgment of the above mentioned movable land immovable properties and filed the present suit for recovering of due amount of Rs.17,65,000/- along with the interest at the rate of 18% from the defendants nos.1 to 4.

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2.2 The defendants are duly served with the notices. The defendants nos.1 to 4 have filed their written statement at vide Exh.15, wherein they have admitted the executing of agreement of sub contract in favour of plaintiff by their deceased father Rajendrasing for the period from 1.4.96 to 31.12.96. They have denied the letter dated 17/7/1997 of Rajendrasing. They have admitted that deceased Rajendrasing had given two cheques of Rs.9,00,000/- and Rs.8,65,000/- to the plaintiff but the amounts of both the cheques are paid to the plaintiff in cash on 10/8/98 by deceased father Rajendrasing in their presence and for the same the plaintiff had given writing on his letter pad and also given assurance that he will return the said cheques but after the death of their father the plaintiff has misused the said cheques. Hence, there was no due of plaintiff against deceased father Rajendrasing. In short these defendants have denied the averments of the plaintiff in toto and prayed to dismiss the suit of the plaintiff with costs.

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2.3 The defendants nos.5 and 6 have filed their written statement at vide Exh.11, wherein they have mainly contended that there is no privity of contract between the plaintiff and defendants nos.5 and 6, therefore, there is no cause of action arisen against them. FDR No.27 in agreement no.39 has been released on 10/12/96. That FDR No.612039 has been released on 17/11/97, as such there is no such FDR with ONGC. FDR No.1 to 4 are in favour of ONGC as such the plaintiff can not ask for any stay regarding the same. They have paid the bills against the agreements nos.127 and 102 of Rs.14,17,803 and 22,29,989/- respectively. Stating such facts, they have prayed to dismiss the suit with costs against them.

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Having regard to the pleadings of the parties, the trial Court framed the following issues vide Exh.57.

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1. Whether the plaintiff proves that he is entitled to recovery of Rs.17,65,000/- from the defendant no.1 to 4?

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2. Whether the plaintiff is entitled to recover 18% interest on the dues?

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3. Whether the defendant no.1 to 4 proves that they had paid dues by cash?

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4. Whether the plaintiff is entitled for relief claimed in Para-(6) of the Plaint?

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5. What order and decree?

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The issues framed by the trial Court referred to above came to be answered as under:-

1. In Negative

2. In Negative

3. In Affirmative

4. In Negative

5. As per final order

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Mr. Hriday Buch, the learned counsel appearing for the appellant – original plaintiff submitted that the impugned judgment and decree is erroneous in law. He submitted that the entire judgment passed by the trial Court is based on the misconstruction of the document Exh.104. The suit came to be erroneously dismissed by relying on Exh.104, which is a letter, which according to the trial Court establishes the fact that the amount was paid to the plaintiff by the father of the defendants in cash. According to Mr. Buch, the document at Exh.104 is a concocted document and the same came to be created only with a view to meet with the demand raised by the plaintiff of his legitimate dues recoverable from the defendants.

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Mr. Buch submitted that the trial Court failed in appreciating the documentary evidence in the form of letter issued by the Speed King Enterprise as well as the profit and loss accounts of the Proprietary concern – Speed King Enterprise produced below Exhs.107 and 108. This also establishes the business transaction in carrying out the work as a sub-contractor by the appellant on behalf of the proprietary concern of late Shri Shokhi. Under such circumstances, the dues remain undisputed.

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Mr. Buch further submitted that the trial Court failed in appreciating the production of two original cheques bearing Nos.497934 for an amount of Rs.9,00,000/- and 569983 for an amount of Rs.8,65,000/- respectively. The said cheques could not be deposited in the bank due to the sudden death of Shri Shokhi on 9.9.1998. The appellant filed the suit on 9.11.1998. The Court below erred in drawing an adverse inference against the appellant as to why the recovery proceedings were not initiated during the lifetime of late Shri Shokhi. This is totally irrelevant and insignificant inasmuch as the suit is within the period of limitation on the basis of the two cheques and other

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documentary evidence in the form of accounts and undisputed liability of the proprietary concern.

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Mr. Buch submitted that when the dues are admitted by the defendants, the mode of payment also ought to have been explained by the defendants and a doubtful and concocted document below Exh.104 ought not to have been relied upon.

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In the last, Mr. Buch submitted that the Civil Court erred in drawing an adverse inference against the appellant that the appellant has not taken out any criminal proceedings because of the forgery alleged to have been committed by the defendants while creating a bogus document at Exh.104. Initiation of criminal proceeding for committing forgery is just one remedy available to a victim. However, just because the victim does not think it fit to initiate criminal proceedings would certainly not entitle for such a victim to doubt the said document in the civil proceeding and establish it to be forged. In the present case, when the said document is apparently doubtful on the face of it, the same could not have been relied upon and could not have been treated as cogent evidence.

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In such circumstances referred to above, Mr. Buch prays that there being merit in this First Appeal, the same be allowed. The judgment and decree be quashed and the suit filed by the plaintiff be allowed.

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On the other hand, this First Appeal has been vehemently opposed by Mr. Kashyap Joshi, the learned counsel appearing for the defendants. Mr. Joshi would submit that no error not to speak of any error of law could be said to have been committed by the trial Court in dismissing the suit.

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According to Mr. Joshi, the trial Court rightly believed the acknowledgment of the amount paid by the father of the defendants to the plaintiff in cash by relying upon the document Exh.104. He would submit that the trial Court has rightly not believed the case put up by the plaintiff as regards creating a bogus document i.e.Exh.104. Mr. Joshi submitted that the reasonings assigned by the Court below cannot be termed as perverse or erroneous and therefore, the judgment and decree may not be disturbed. Mr. Joshi submitted that there being no merit in this first appeal, the same be dismissed.

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Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in dismissing the suit filed by the plaintiff.

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Let me look into the findings recorded by the trial court as regards the issue nos.1 to 4.

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[A] As the issue nos.1 to 4 are inter-connected, therefore, I discussed all these issue together for sake of convenience and to avoid repetition of analysis of the evidence.

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[B] The plaintiff came with the case that Deceased Rajendrasing Masasing who was proprietor of firm named Speedking Enterprise had taken contract for constructing road for ONGC Ankleshwar and was entered sub-contract with mr. M.J. Vyas by executing agreement for sub- Contract. As per sub-Contract, the plaintiff has done work of Rs.7,15,762 & Rs.7,05,000/-, therefore, Speedking Enterprise ought to have pay above amount to the plaintiff. The proprietor of the firm of Speedking Enterprise was not able to pay such amount to the plaintiff immediately, hence, the owner of the firm of Speedking Enterprise, Mr. Rajendrasing Shokhi had issued two cheque with interest amount in favour of the plaintiff. Thereafter, proprietor of Speedking Enterprise, Mr. Rajendrasing Masasing was died on dt.09.09.1998, so the plaintiff has asked to legal heir's of the deceased Rajendrasing Masasing to pay

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the dues amount of the plaintiff. The defendant no.1 to 4 who are legal heirs, has refused to give dues amount to the plaintiff hence the plaintiff has filed this suit.

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[C] In support of the pleading the plaintiff has adduced oral evidence of Mr. Mahendrabhai Jethalal Vyas at Exhibit: 101. In his examination-in-chief which is filed under provision of O.18.R.4 of the Code of Civil Procedure, completely followed to the pleadings of the plaint. But it is evidence upon the cross-examination of this witness that, the plaintiff has signed in document Exhibit:104, which is important document relied by the defendant no.1 to 4. However, it is evident upon the evidence of Mr. Mohinderpratap Shokhi at Exhibit:120 that, the plaintiff has admitted his signature on the document at Exhibit:104. Herein, the plaintiff's case based on agreement for sub-contract which is at Exhibit: According to the plaintiff's he has done work as sub-contractor of Speedking enterprise (Main Contractor). On perusal of agreement for sub-contract, it appears that the Speedking Enterprise has given sub-contract to the Mr. M.J. Vyas and as per clause No(5) of agreement for sub-contract “Contractor has to make payment to sub-contractor of entire amount of bill raised to ONGC and amount received from ONGC” and clause no.(7) “In the event of any dispute or difference between the contractor and sub-contractor whether arising during the execution or after completion of the sub-contractor work shall be solved by mutual understanding”.

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[D] Now Looking to the agreement it crystal clear that there was privity of contract between Speedking Enterprise and Mr. M.J. Vyas (the plaintiff). Therefore, the plaintiff is entitled to recover dues amount from the proprietor of Speedking Enterprise. But here in, the proprietor of firm Speedking enterprise was died on dated 09.09.1998. Therefore, the only point to be determine whether the plaintiff is entitled to get dues amount from the defendant no.1 to 4 who are the legal heir's of the deceased Rajendrasing Masasing as per agreement for sub-contract. Admittedly, there is no privity of contract between the plaintiff and the defendant nos.1 to 4 and the defendant no.1 to 4 are not proprietor or partner of the Speedking Enterprise. Moreover the plaintiff fail to prove that defendant nos.1 to 4 are proprietor or partner of the Speedking Enterprise. The plaintiff has produced a letter issued by the Speedking Enterprise at Exhibit:107, this letter had been written by the proprietor of Speedking Enterprise on dtd.17.07.1997 to the plaintiff. It is evident from Exhibit: 107 that, the proprietor of Speedking Enterprise had admitted that he has to pay Rs.7,15,762/- & Rs.7,05000/- to the plaintiff for work and issued two cheque, one is bearing 497934 of Rs.9,00,000/- and second is bearing No.569983 of Rs.8,65,000/-. Thus, it is crystal clear that as on 17.07.1997, the plaintiff is entitled to get Rs.7,15,762/- & Rs.7,05,000/- towards work

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done under sub-contract. It is pertinent to note that there is no iota of evidence to show that from 17.07.1997 to dt.09.09.1998 (till the death of Rajendrasing Masasing) had initiated proceedings from recovery of his due amount. The suit is filed after two months from the date of death of Rajendrasing Masasing i.e.on 09.11.1998. which is required to be considered along with the all evidence.

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[E] It is admitted by the plaintiff in his cross-examination that he has not issued notice to the defendant no.1 to 4 prior filing of this suit. Of course, it is not necessary to give notice to the defendant no.1 to 4, but when there is no privity of contract, it is desirable to give opportunity to the defendant no.1 to 4.

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[F] It is argument of the defendants nos.1 to 4 that dues amount was paid to the plaintiff and for this they relied on document at Exhibit:104. As against, Ld. Advocate Mr. S.I. Dola has submitted that contents of the document Exhibit:104 is not proved by the defendant nos.1 to 4 as well as date in the document is altered subsequently. It is further submitted that, the defendant no.1 to 4 was knowing that income return for March-1998 was filed and in this return, it is not mentioned about payment of the suit amount, therefore, they created the document Exhibit”104 subsequently i.e. in August 1998 and fabricated false document. I have gone through argument as well as evidence of both side. On perusal of document Exhibit:104 it appears that a writing is made on the letter pad of MAHENDRA J VYAS. In this document it has been written that:-

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That on behalf of you, the cheque bearing no.497934, dated 10.10.98 of Rs.9,00,000/- (Rupees Nine Lac Only) and cheque bearing no.569989, dated 2.11.98 of Rs.8,65,000/- (Rupees Eight Lack Sixty Five Thousand Only) have been received towards the amount to be recovered by me, but the said amount to be fully recovered from you has be received.

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The defendant Mr.Mohinderpratap Shokhi has given his oral evidence at Exhibit:120, wherein he stated in his examination-in-chief that the plaintiff has signed on the document Exhibit:104. In the crossexamination it is admitted that,

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It is true that no any revenue stamp has been affixed on Exh.104. At the bottom of Exh.104, the word “Thanking you, Yours faithfully' have been written. It is true that we have not produced any evidence as to from where and as to how we have paid an amount of Rs.17,65,000/-. It is not correct that we have subsequently got up the document Exh.104 with a view to not to make the payment.

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Further, in cross-examination, the plaintiff by putting leading questions to the witness about the document at exhibit:104 and answer that:

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It is not correct that the document Exh.104, which is a blank letterhead, was given to me by the plaintiff by putting his signature and after writing the word 'Thanking you, Yours faithfully'.

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[G] Thus looking to the evidence of Mr. Mohinderpratap Shokhi, it transpires that he did not produced any documentary evidence to show how and when the amount was paid to the plaintiff. The defendant no.1 to 4 stated that the due amount was paid by deceased Rajendrasing Shokhi during his life time, therefore, only evidence for payment was lying with him under such circumstance, if the defendant nos.1 to 4 did not produce any documentary evidence regarding payment is not fatal to their defence. More-so, the defendant nos.1 to 4 is relied on document Exhibit:104 regarding the payment. The plaintiff, in his cross-examination admitted his signature on document Exhibit:104, Now looking to the document at Exhibit:104, it transpires that the plaintiff has written letter to the proprietor of Speedking Enterprise on 10.08.1998. i.e. before death of proprietor of Speedking Enterprise and there is no alteration in the date. The plaintiff only raised dispute that contains of the document is not proved by the defendant no.1 to 4, so far, contains is concerned we looked cross-examination of the defendant witness, on crossexamination, it is crystal clear that the document Exhibit :104 is not blank and writing is issued from the plaintiff and he acknowledge his signature, therefore, prima-facie it is proved that document Exhibit:104 is written by the plaintiff. Further looking to this document it appears that is is not receipt, but it is writing to intimate about payment is made, therefore, there is no need of revenue stamp. If the plaintiff wants to disprove this document, he has to adduced some evidence contrary to Exhibit:104. The defendant no.1 to 4 in their written statement stated about document Exhibit:104 and date was altered. As the defendant no.1 to 4 has put their defence by way of document Exhibit:104, it is for the plaintiff to rebut this evidence by adducing some cogent evidence. The plaintiff has raised the dispute that document Exhibit:104 is forged and fabricated and bogus. In this regard the plaintiff did not filed any complaint regarding document Exhibit:104, that it is forged & bogus document before any authority. A bare word that the document is forge & bogus is not enough to disbelieve the credibility of the document. Under such circumstance, I believed the document exhibit:104 is not forged and bogus and I believed this document is duly proved as per law.

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[H] Herein, the defendant no.5 to 6 has given his oral and document in the suit, but looking to the plaint as well as issues, the plaintiff has asked for relief against the defendant no.1 to 4. Therefore, it is needless to consider evidence of the defendant no.5 & 6. Moreover, looking to the document at Exhibit:168 to 175, it transpires that they have concerned with the proprietor of Speedking enterprise only.

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The fate of this appeal is dependent on the construction of the document Exh.104. Exh.104 is in the form of a letter purported to have been written by the plaintiff dated 10/08/1998 addressed to the Proprietor of the Speed King Enterprise acknowledging the receipt of the suit amount in cash. The contents of the letter are in gujarati, however, the signature is in english. Besides the same, above the signature, it has been written “Thanking you, Yours faithfully” . In my view, Exh.104 on the face of it, is a fabricated document. A blank letter-pad of the plaintiff with his signature on it appears to have been misused after the demise of Rajendrasing Masasing Shokhi i.e.the original father of the defendants.

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16. The following aspects are relevant.

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(1) The suit for recovery of the amount has been instituted on the basis of written agreement dated 30.3.1996 (Exh.109) executed by late Shri Rajendrasing Masasing Shokhi in favour of the appellant-plaintiff.

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(2) The claim of the outstanding amount has been proved by document below Exh.110 which is a work-wise detail prepared and furnished by the appellant-plaintiff.

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(3) In discharge of the dues of Rs.17,65,000/- Shri Shokhi had issues two cheques bearing Cheque No.497934 for an amount of Rs.9,00,000/- as well as Cheque No.569983 for an amount of Rs.8,65,000/- dated 10.10.1998 and 2.11.1998, respectively. Before the said cheques could be deposited, late Shri Shokhi passed away on 9.9.1998. As the heirs of Shri Shokhi refused to pay the outstanding dues, the appellant-plaintiff instituted the suit on 9.11.1998 seeking recovery of the amount of Rs.17,65,000/- with

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interest.

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(4) The heirs of Shri Shokhi appeared and filed writtenstatement below Exh.15. In the written-statement, it is contended that the amount of Rs.17,65,000/- has been repaid in cash on 10.8.1998 and the appellant-plaintiff has issued receipt on his own latter-head. The said document is produced along with the written statement by the respondents-defendants and is exhibited below Exh.104.

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(5) The appellant-plaintiff filed as detailed counter-affidavit below Exh.17 and raised a plea that no such amount is paid in cash. The document dated 10.8.1998 is concocted. A blank letterhead signed by the appellant-plaintiff is misused by the respondentsdefendants just to wriggle out of the claim in the statement.

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(6) The appellant-plaintiff examined below Exh.101, proved the contents of all the documentary evidence in support of the claim. The appellant-plaintiff also stated that the document below Exh.104 is concocted and no amount is paid by Shri Shokhi on 10.8.1998. The appellant-plaintiff identified his signature on the document Exh.104, however, disputed the contents thereof and stated that the contents are not written by him and doesn't admit the same. The suggestions put to the appellant-plaintiff about the receipt of the entire amount are denied.

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(7) Shri Mohinder Pratap Shokhi – son of late Shri Shokhi in his cross-examination below Exh.120 has stated as under:-

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(a) It is true that on page 2 of Exh.15 in para 7, the fact of payment made to the plaintiff on 10.1.1998 is mentioned but '1' is corrected to '8'. It is also true that earlier in the written statement, the date was wrongly typed as 10.1.1998. It is true that the same is corrected from '1' to '8'.

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(b) It is true that if the payment of more than Rs.20,000/- is to be made, the receipt bears a revenue stamp. It is true that payment of the amount of more than Rs.20,000/- has to be done by cheque.

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(c) It is true that no revenue stamp is affixed in the document below Exh.104 and the words 'Thanking you' as well as 'Yours faithfully' are written.

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(d) It is true that he does not have any idea as to how the amount of Rs.17,65,000/- was arranged and how the said amount was paid to the appellant plaintiff. He does not have any document or proof of the said payment.

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(e) The suggestion that the document below Exh.104 is false and concocted with a view to wriggle out of the suit claim, is denied.

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In the result, this appeal succeeds and is hereby allowed. The Judgment and decree passed by the Principal Senior Civil Judge, Bharuch dated 30/09/2016 in the Special Civil Suit No.229 of 1998 is hereby quashed and set aside. The suit of the plaintiff is hereby allowed and decreed. The defendants shall pay to the plaintiff an amount of Rs.17,65,000/- (Rupees Seventeen Lac Sixty Five Thousand Only) at the rate of 9% per annum till realization of the entire decreetal amount. The decree shall be drawn accordingly. The costs shall borne by the defendants. Direct service is permitted.

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(J.B.PARDIWALA, J)

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aruna

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Mahendabhai Jethalal Vyas v. Gurudarshan Rajendrasinh Shokhi Heir of Decd. Rajendrasing Masasing Shokhi

Case brief

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Mahendabhai Jethalal Vyas v. Gurudarshan Rajendrasinh Shokhi Heir of Decd. Rajendrasing Masasing Shokhi

Case brief

What is this about?

What did the court decide?

What the court decided

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