1984 Supreme(MP) 103

U. N. Bhachawat and C. P. Singh, JJ.
V. Krishna and Co. v. Rajputana Motors.
F. A. No. 98 of 1977 (I); Decided on 10-2-1984.

Headnote:(1) Evidence Act, 1872 -- S. 31 -- admission -- is a substantial evidence.

        (2) Evidence Act, 1872 -- Ss.92 and 114 -- documentary evidence in possession not produced -- inference against such party may be down.

        The counsel for the appellant had raised the following contentions :

        (1) M. R. Krishnan was, at the material time, not in the employment of the appellant and, therefore, he was not authorised to enter into the agreement evidenced by Ext. P-4;

        (2) Exhibit P-4 is not proved according to law, and

        (3) the price of the 13 pieces of compressors is not proved to be Rs. 26,000/-:

        Held : It is of significant relevance to point out that in the written, statement the appellant did not aver that M. R. Krishnan was not in its employment at the material time and, therefore, the agreement (Ext. P-4) entered by him on behalf of the appellant, is unauthorised. Not only this, when during the course of the evidence on behalf of the appellant this case was attempted to be set up in the cross-examination of the appellants witness Shiv Subrahmanyam (DW. 1) that M. R. Krishnan was not at the material time in the employment of the appellant to test the veracity of his statement a question was asked whether the appellant maintains books of account and in that there is an entry regarding the period during which M. R. Krishnan was in the employment of the appellant, he categorically admitted that the appellant has got those account books, but these account books are not produced to substantiate the case of the appellant, which, as already said, was set up during the course of the evidence, although not set up in the written statement. The matter docs not rest here. In par. 17 of his statement, Shiv Subrahmanyam (DW.1) has admitted that the reply (Ext. P-15) dated 5-1-1972 to the notice of respondents No. 1 and 2 dated 23rd December 1971 (Ext. P-14) was given under the signature of the said M. R. Krishnan on behalf of the appellant. The fore-discussed evidence of Shiv Subrahmanyarn (DW. 1) clinches the matter and it has been satisfactorily established that M. R. Krishnan was in the employment of the appellant and authorised to enter into the agreement (Ext. P-4) on behalf of the appellant. At this stage, it would be pertinent to refer to the contents of Ext. P-15, wherein it is stated :

        "However we may mention that it may not be possible for us to supply all the 13 psc. in the month of Jan. 72. We might be able to supply about 7/8 pcs. in the month of January and balance during the month of February 1972."

        This is a categorical admission of the liability on behalf of the appellant by its authorised person. Admission is a substantial evidence as held by their Lordships of the Supreme Court in Narayan Bhagwantrao Gosavi Balagiwale v. Gopal Vinayak Gosavi and others (AIR 1960 S. C. 100) and Bharat Singh v. Mst. Bhagirathi (AIR 1966 S. C. 405).

        The upshot of the foregoing discussion is that the appellant has rightly been held liable either to return the 13 pieces of the compressors or to pay the costs thereof. Thus, contention No. 1 is repelled.

        Contention No. 2 Learned counsel for the appellant argued that exhibit P-4 is not proved and what has been proved is only the signature of M. R. Krishnan on this document. His argument has been that the contents of Ext. P-4 also were required to he proved. This argument of the learned counsel has been stated merely to be rejected. In the light of what we have said while discussing contention No. 1. it has to be held that from Ext. P-15 and the statement of Shiv Subrahmanyam (D. W. 1) this document Ext. P-4 has been amply proved apart from that evidence of respondents No. 1 and 2.

        Contention No., 3. We now turn to the consideration of contention No. 3. This relates to the price. Learned counsel for the appellant contends that except the averment in the plaint which has been denied in the written statement, there is absolutely no evidence on record to support the finding that the price per compressor at the relevant time was Rs. 2,000/-. The argument of the learned counsel is decided of substance. The trial Court has discussed this question in para. 17 to 20 of the impugned judgment. In the light of the statement of Ratanlal Gupta (PW. 2), we are of the view that the finding of the trial Court regarding the price is justified. It would be of significant relevance to mention here that the appellant being manufacturer of the article in question have not placed documentary evidence on record to show the prevailing price at the relevant time. This having not been done by the appellant, in the particular facts and circumstances of this case, it has to be inferred that the price demanded by the plaintiffs is just and proper. This contention is also, therefore, repelled. Appeal dismissed.