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HIGH COURT OF CALCUTTA
H. K. Bose, G. K. Mitter
HARIDAS MUNDHRA - Appellant
Versus
INDIAN CABLE CO. LTD - Respondent
. Of .
Decided On : July 10, 1964
CIVIL PROCEDURE CODE - ORDER 14, RULE 1 - FRAMING OF ISSUES - DUTY OF COURT - ADMISSION IN PLEADINGS - ORDER 41, RULE 22 - SUPPORTING DECREE ON GROUND DECIDED AGAINST RESPONDENT - POWER OF APPELLATE COURT - ADMISSION OF LIABILITY IN PLEADING - MAINTENANCE OF DECISION ON THAT GROUND - POWER OF APPELLATE COURT - GROUNDS OF APPEAL - ABSENCE OF GROUND ABOUT NON-SETTLEMENT OF ISSUES - EFFECT.
Fact of the Case:
Plaintiff sued defendant for recovery of money due under letters of guarantee executed by defendant. Defendant admitted execution of letters but denied liability. Trial court passed decree for plaintiff without allowing defendant to cross-examine plaintiff's witness. Defendant appealed.
Finding of the Court:
1. Trial court erred in passing decree without giving defendant opportunity to cross-examine plaintiff's witness. 2. Oral evidence cannot be accepted and no decree could have been passed. 3. Absence of issues is not a point that has been taken in the grounds of appeal but this does not matter.
Issues: 1. Whether trial court erred in passing decree without giving defendant opportunity to cross-examine plaintiff's witness? 2. Whether oral evidence can be accepted and decree could have been passed? 3. Whether absence of issues is a point that has been taken in the grounds of appeal?
Ratio Decidendi: 1. 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. 2. It is the duty of the court to frame issues after reading the plaint and the written statement and after such examination of the parties as may appear necessary. 3. Order 41, Rule 22 of the Code of Civil Procedure provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court. 4. A Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it had before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box.
Final Decision: Appeal allowed. Case remanded to 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. Osler (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. Osler 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. 11,22,041. 25 np and from S. B. Trading Co. (Private) Ltd. Rs. 15,09,252. 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. Training Co. (Private), Ltd. By the letter of September 26, 1957 the defendant purported to confirm the indebtedness of the principal debtors as mentioned above and to 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 defendan
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