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HIGH COURT OF CALCUTTA
H. K. BOSE, G. K. MITTER
HARIDAS MUNDHRA - Appellant
Versus
INDIAN CABLE CO. LTD. - Respondent
A. F. O. O. And D. 56 Of 1964
Decided On : JULY 10, 1964
CIVIL PROCEDURE - ISSUES - FRAMING OF ISSUES - DUTY OF COURT - CROSS-EXAMINATION - RIGHT OF DEFENDANT - ADMISSION IN PLEADINGS - EFFECT - ORDER 41, RULE 22 - APPLICABILITY.
Fact of the Case:
The plaintiff, a manufacturer of cables and electrical goods, supplied goods to two companies, F. and C. Osier (India), Ltd. and S. B. Trading Co. Private, Ltd., between March 1955 and February 1956. The defendant, a director of both companies, guaranteed the payment of such amounts upto Rs. 11,00,000 and Rs. 15,00,000, respectively, that might be due to the plaintiff in its accounts with the said companies. On September 26, 1957, the defendant executed a further letter of guarantee whereby he acknowledged his liability to the plaintiff in respect of the dues of the said Companies and guaranteed payment of the same. The plaintiff filed a suit against the defendant for recovery of Rs. 26,00,000, being the limit of the guarantee. The defendant filed a written statement admitting the execution of the letters of guarantee but denying his liability. At the trial, the learned Judge refused to allow the defendant to cross-examine the plaintiff's witness and passed a decree in favor of the plaintiff for Rs. 26,00,000.
Finding of the Court:
The High Court held that the learned Judge had erred in disallowing cross-examination of the witness. It was an elementary principle of law that no evidence which had not been subjected to cross-examination could be used against anybody against whom it is sought to be tendered unless cross-examination is declined. The Court also held that it was the duty of the Court to frame issues even if the defendant did not raise any issues. The Court further held that Order 41, Rule 22 of the Code of Civil Procedure, which allows a respondent to support the decree on any of the grounds decided against him in the Court below, was not applicable in the present case as there was no reference to any admission in the pleadings in the judgment of the trial Judge.
Issues: 1. Whether the learned Judge erred in disallowing cross-examination of the plaintiff's witness? 2. Whether it was the duty of the Court to frame issues even if the defendant did not raise any issues? 3. Whether Order 41, Rule 22 of the Code of Civil Procedure was applicable in the present case?
Ratio Decidendi: 1. It is an elementary principle of law that no evidence which has not been subjected to cross-examination can be used against anybody against whom it is sought to be tendered unless cross-examination is declined. 2. Order 14, Rule 1 of the Code of Civil Procedure lays down that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other and Sub-rule 5 provides that "at the first hearing of the suit the Court shall after reading the plaint and the written statement if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend." 3. Order 41, Rule 22 of the Code of Civil Procedure, which allows a respondent to support the decree on any of the grounds decided against him in the Court below, is not applicable where there is no reference to any admission in the pleadings in the judgment of the trial Judge.
Final Decision: The appeal was allowed and the decree of the trial Judge was set aside. The case was remanded to the trial Court for trial after framing necessary issues.
( 1 ) THIS is an appeal from a decree in a contested suit wherein the learned trial Judge did not allow counsel for the defendant to cross-examine the witness who came to prove the plaintiff's case. The decree, however, was sought to be maintained on diverse grounds by counsel for the respondent and hence it is necessary to examine the facts of the case and what transpired before the learned trial judge on the day when the suit was called on for hearing and decreed.
( 2 ) THE case made in the plaint is as follows: The plaintiff is a manufacturer of cables and other electrical goods. Between March, 1955 and February, 1956 it supplied goods to one F. and C. Osier (India), Ltd. , and one S. B. Trading Co. Private, Ltd. , and large sums of money became due and payable to the plaintiff from the said companies. On or about September 5, 1956 the defendant, a director of both the said companies, in consideration of the plaintiff allowing and continuing to extend to the said companies the said credit, guaranteed in his personal capacity the payment of such amounts upto Rs. 11,00,000 and Rs. 15,00,000, respectively, that might be due to the plaintiff in its accounts with the said companies. The letters of guarantee, dated September 5, 1956 were annexed to the plaint. On September 26, 1957 F. and C. Osier (India) Ltd. became indebted to the plaintiff in the sum of Rs. 11,37,707/3/3 while S. B. Trading Co. Private, Ltd. became so indebted in the sum of Rs. 15,34,252/15/ -. On September 26, 1957, the defendant in consideration of the plaintiff having deferred the filing of suits against the said Companies for the recovery of the amounts due and by way of supplementing the letters of guarantee, dated September 5, 1956, executed a further letter of guarantee whereby he acknowledged his liability to the plaintiff in respect of the dues of the said Companies and guaranteed payment of the same. A copy of the said letter is also annexed to the plaint On May 1, 1958. i. e. , the date of the filing of the suit the plaintiff's dues from F. and C. Osler (India), Ltd. was Rs. 11,42,041. 25 np and from S. B. Trading Co. (Private), Ltd. Rs. 15,09,282. 09 np. The claim against the defendant was, however, limited to Rs. 26,00. 000 in terms of the letter of guarantee.
( 3 ) THE letters of September 5, 1956 go to show that in case the said two Companies failed to pay their dues the executant H. D. Mundra would remain liable to make payment to the plaintiff upto Rs. 11,00,000 in respect of the dues from F. and C. Osler (India), Ltd. and up to Rs. 15,00,000 in respect of dues from S. B. Trading Co. (Private), Ltd. the letter of September 26, 1957 the defendant purported to confirm the indebtedness of the principal debtors as mentioned above and in his capacity as guarantor to pay diverse sums of money in stated instalments towards reduction of his liability whereupon the plaintiff was to release certain securities deposited by S. B. Trading Co. (Private), Ltd. with the plaintiff to secure the latter's indebtedness.
( 4 ) THE defendant filed his written statement on July 8, 1958. By it he admitted that the plaintiff had from time to time supplied electrical goods to the two named Companies and further admitted having executed the two letters, dated September 5, 1956 and the one, dated September 26, 1957. Except for this, the defendant did not make any admission with regard to the claim of the plaintiff. In particular he denied having guaranteed any payment to the plaintiff for any consideration as alleged or at all. He did not admit that the sums of Rs. 11,37,707/3/3 and Rs. 15,34,252/15/- had become due from the two Companies to the plaintiff as alleged. He pleaded further that after execution of the letter, dated September 26, 1957 the earlier letters, dated September 5, 1956 had become inoperative. He also stated that on or about March 14, 1958 the plaintiff had amicably settled its claim against the said two Companies by reason whereof the
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