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1984 Supreme(Cal) 46
High Court Of Calcutta
A. K. SEN, PRABIR KUMAR MAJUMDAR
HIMJIT CONSTRUCTION - Appellant
Versus
TARUN SARKAR - Respondent
A. F. A. D. 215 Of 1983
Decided On : 02/22/1984
ASIT KUMAR BHATTACHARJI, BHASKAR BHATTACHARYA, Tapan Kumar Dutta
Adverse inferences can be drawn against a party who fails to produce relevant documents that are in their custody and control.
Headnote:
CIVIL PROCEDURE CODE, 1908 - SECTIONS 100, 148, 151 - EVIDENCE ACT, 1872 - SECTION 114 - ADVERSE INFERENCE - NON-PRODUCTION OF DOCUMENTS - POWER OF ATTORNEY - AUTHORITY TO PRESENT PLAINT - FINDINGS OF FACT - SECOND APPEAL - SCOPE OF REVIEW.
Fact of the Case:
Plaintiff filed a money suit against the defendant for outstanding dues for sub-contract work done on the defendant's premises. The defendant denied the sub-contract and claimed that the work was done by another person for a lesser amount. The trial court and the appellate court found in favor of the plaintiff.
Finding of the Court:
The High Court held that the defendant's failure to produce the original bill and job chart submitted by the plaintiff, as well as copies of the plaintiff's bill to his employer, justified an adverse inference against the defendant. The court also held that the plaintiff's power of attorney was duly filed and that the defendant could not dispute its authority at a later stage.
Issues: 1. Whether the plaintiff had the authority to present the plaint and verify it on behalf of the plaintiff. 2. Whether the findings of fact by the lower courts were based on evidence or adverse inferences drawn contrary to law.
Ratio Decidendi: 1. The defendant could not dispute the plaintiff's authority to present the plaint and verify it since he had not raised any specific defense in his written statement. 2. The findings of fact by the lower courts were based on sufficient evidence, including the plaintiff's bill and job chart, and the defendant's failure to produce relevant documents.
Final Decision: The appeal was dismissed.
( 1 ) THIS appeal from the appellate decree is at the instance of the defendant and it arises out of a money suit. In the money suit the plaintiff claimed a sum of Rs. 9,252/- as his outstanding dues for the works done on a sub-contract on behalf of the defendant for adjustment of the amounts paid and also claimed a sum of Rs. 748/- by way of interest. According to the plaintiff, he was given a sub-contract to effect certain painting and whitewashing of premises No. 4, Raja S. C Mallick Road, Calcutta in March 1978. He completed the work in April 1978 and submitted a bill for a sum of Rs. 16,752/- for the works so done along with a job chart indicating the job undertaken by him on behalf of the defendant. According to the plaintiff, out of the aforesaid sum of Rs. 16,752/- he received payment of Rs. 7,500/- and what remained due by way of balance was Rs. 9,252/ -. Since the said amount was not paid in spite of repeated reminders the plaintiff instituted the suit for recovery of the said sum together with interest as indicated hereinbefore. The suit was contested by the defendant. After taking all sorts of possible defences that can be taken in a general way the specific defence which the defendant took was that the sub-contract was not given to the plaintiff but was given to one Jayanta Kumar Sarkar. According to the defendant the work undertaken by Jayanta Kumar Sarkar was less in volume than as claimed by the plaintiff. The value of the work done, according to the defendant was Rs. 7873. 26 but of which a sum of Rs. 7500/- being paid what remained due was merely Rs. 373. 26. The defendant denied that any bill was submitted to the defendant by the plaintiff or that any such bill with a job chart was ever submitted. This in substance was the defence taken.
( 2 ) UPON the pleadings as aforesaid several issues were framed. Parties adduced evidence, both oral and documentary. The learned Subordinate Judge on consideration of the evidence answered the issues all in favour of the plaintiff and he further found that on the evidence adduced the case of the plaintiff had been well proved. Accordingly, the learned Subordinate Judge gave a decree for Rs. 10,000/- in favour of the plaintiff. On an appeal by the defendant all the findings recorded by the learned Subordinate Judge having been affirmed the learned Additional District Judge has dismissed the appeal. Hence the present second appeal.
( 3 ) MR. Bhattacharyya appearing in support of this appeal has first contended that the plaint that was filed on the verification of one Tarun Sarkar was not maintainable as the said Tarun Sarkar had not proved the power of attorney in his favour under which he could derive authority to present the plaint or verify the same. Though no specific defence in this regard was raised in the written statement this issue was gone into by the two Courts below but was concurrently overruled because in view of the Courts below it was not for the defendant to dispute his authority and also because the power of attorney was duly filed though it was not exhibited because no specific issue was raised in that regard. The next point which has been urged by Mr. Bhattacharyya is that what appear to be the findings of fact are not really so because such findings are not based on evidence or are based on adverse inferences drawn contrary to law. These are the two points which have been convassed by Mr. Bhattacharyya in support of this appeal.
( 4 ) WE have carefully considered the two points thus raised by Mr. Bhattacharyya, but we find little substance in either of the same. So far as the first point raised by Mr. Bhattacharyya is concerned, since the defendant at no point of time in his written statement disputed the authority of Sri Tarun Sarkar to present the plaint on behalf of the plaintiff or to verify the same, such a point, in our opinion, should not have been allowed to be raised at all. It should not have been allowed for the simple reas
