Reliance was placed ot Gopal Krishnaji Ketkar v' Mohamed Haii Lari/, Vidhyadhar v. Manikrao

Judgment

(.Per Hon'ble Sri .Iustice Wtkiri Ramakrishna Rcut i\ This Appeal is filed by the appellant/plaintiff aga I st the Judgment and Decree dated 23.01.2018 passed in O.S.No.513 ol- 1005 (hereinafter will be referred as 'impugned judgment') on the file of (VII Additional Senior Civil Judge, City Civil Cou( (hereinafter will bc r:ferred as ,Irial

Court'), wherein the suit filed by the plaintiff against rl e defendant for recovery of money was dismissed. 2 For the sake of convenience, the parties shall be n.t :rred to as they were arrayed before the Trial Court. I. BRIEF FACTS:

3. The plaintiff and the defendant enter-ed into a lv emorandum of Understanding (Mou) dated 11.08.2001 under which tht :laintiff agreed to transfer various cable networks, including Vimusha \i sion, Meghana Vision, and Yamini Vision, collectively comprising about 10,000 subscribers, for a total consideration of Rs.3,0 1,5 0,000/-. 4 Pursuant to the MOU, several Business Transfer.Agre :ments (BTAs) were executed on 29. 11.2001, 13.11.2001, 27.12.2A01. ,r rd 2g.01.2002. 2 ,4KS.J&I:RKRJ CCCA No 3t 2 2018 Under the BTA dated 27.12.2001, the agreed consideration was Rs.69,38,000/-, out of which Rs.64,38,0001- was admittedly paid by the defendant, leaving a balance of Rs.5,00,0001- payable within 60 days.

5. The plaintiff asserts that despite repeated demands and legal notices, the defendant failed to pay the balance. Including interest, the plaintiff claimed Rs.7,70,000/- and instituted O.S. No. 513 of 2005 before the Trial Court.

6. The def'endant resisted the claim, contending that under Clause 3.3.2 of the BTA, payment of the balance was conditional upon the ptaintiff achieving 3,016 paying subscribers and average monthly collections of Rs.4,15,5001 by 31.01.2002. It was pleaded that since the plaintiff failed to satisff these conditions, the liability never arose. II. ISSUES FRAMED BY THE TRIAL COURT:

7. On the basis of pleadings, the Trial Court framed the following lssues: (i) Whether the plaintiff is entitled for the recovery of suit amount of Rs.7,70,000/- with future interest at lSyo per annum from the date of suit till realization? (ii) Whether the defendant has entered into the Business Transfer Agreement dated27.12.2001 with the plaintiff in good faith? / / l/ 3 AKS.J&ZRKR.J CCCA No.3l2 20lE (iii) whether the plaintiff is entitled for declaration of ! lauses 5.-5, g and 9 of the said Agreement on the ground of the clauses bt:i rg unreasonable, opposed to public policy and unfair? (ir) To what relielJ III. EVIDENCE ON RECORD:

8. The plaintiff examined himself as pWl and prorh ced Exs. Al to A49, which comprised the MOU, BTAs, receipts, acknr,.rledgments, and records of part payments. 9- The defendant did not examine himself nor aclctr ce any orar or documentary evidence. IV. FINDINGSOFTHE TRIAL COURT:

10. The Triat Court dismissed the suit by judgment da .ed 23.01.201g, holding that: a The plaintiff failed to prove fulfillment of contrr,r rual conditions under Clause 3.3.2 of the BTA. b. without establishing subscriber strength and collect on figures, the balance of Rs.5,00,000/- did not become payable. The clauses challenged by-the plaintiff (5.5, g and !) could not be said to be unconscionable or opposed to public policy. 4 AKS,J&YRKRJ CCCA No.3l2 2018 d Consequently, the plaintiff was not entitled to the relief claimed. V. ST]BMISSIONS OF THE PARTIES: a) S ubmissions on behqlf of the Apoeltant/Pl,aintiff (Par'tv-in- Person):

11. The plaintiff, appearing in person, contended that the Trial Court gravely erred in ignoring Exs.Al-A49, which includes admissions and acknowledgments of liability by the defendant. He argued that even during pendency of the suit, the defendant made part payments, which clearly establish subsistence of liability.

12. It is contended that the defendant, while setting up a defence under clause 3.3.2, deliberately withheld the collection records which were in his exclusive possession. Further, the defendant never entered the witness box. Such conduct warrants drawing an adverse inference under Section 114(9) of the Evidence Act.

13. Reliance was placed ot Gopal Krishnaji Ketkar v' Mohamed Haii Lari/, Vidhyadhar v. Manikrao2 and Khatri Hotels PvL Ltd v' Union of ' (AtR 1968 sc l4l3) '(t9gg): scc 573) 5 AKS,J&YRKR.] CCCA.\o.3t2 20t8 India3. It was argued that withholding of best evider<: disentitles the defendant from any relief and compels presumption agains him. t4. It was further submitted that Clauses 5.5, g and 9 c lthe Agreement unconscionable, imposed due to the dominant :osition of the defendant, and opposed to public policy. b). Submissions on behalf of the RCSDON dent/Defe ndat t:

15. Per contra, leamed counsel for the defendant suppo -r :d the judgment of the Trial Court, contending that the balance of Rs -5,00,000/_ was conditional and payable only upon fulfillment of subscrit r r and collection targets.

16. It was argued that the plaintiff failed to prove ) rmpliance with clause 3.3-2 of the BTA and, therefore, the liability never ( ystallized. part payments acknowledged in certain documents were said t: be adj ustments towards other heads and not proofofbalance due.

17. Leamed counsel argued that the burden was upon lhe plaintiff to establish compliance with'his own contractual obligations. vhich he failed to discharge, and therefore the dismissal of the suit was jusri ied. 'izor r; e scc 126) I 6 AKS,J&YRKR,J CCCA No.3l2 2018 VI. PROCE EDINGS IN CIVI REVISION PETITIONS:

18. During the pendency of trial, disputes arose regarding the cross- examination of PWl. The Trial Court had curtailed certain questions put to PW1 by the defendant

19. Aggrieved thereby, the defendant filed C.R.P. No. 466 of 2Ol4 before this Court, which was allowed, remitting the matter to the Trial Court with a direction to permit further cross-examination.

20. Subsequently, the defendant again approached this Court in C.R.P. No. 3460 of 2016 on similar grounds. This Court, while allowing the revision, held that cross-examination is a valuable right and permitted the defendant to fuither cross-examine PW I .

21. Thus, the defendant was granted repeated opportunities to cross- examine the plaintiff but ultimately failed to elicit any material evidence to discredit PWI's testimony or to disprove the plaintifls claim. \.II. ISSUE FOR CONSIDERATION:

22. In view of the rival contentions, the issue that arises is: "Whether the dismissal of the plaintifls suit is sustainable in law, or whether an adverse inference ought to have been drawn against the defendant under Section I l4(g) ofthe Indian Evidence Act?" t --a 7 IKS, ,I & VRKR, J CCCA No.3l2 2018 VIII. DTSCUSSION AND ANALYSIS:

23. The plaintiff produced cogent documentary evidenr;, (Exs. Al-A49) which included acknowledgments of liability and part piL' ments. Ex. A16 clearly acknowledged dues, while Ex. Al7 reflected a sub;tantial payment of Rs.37,00,000/-. These documents were neither rebutted ror explained by the defendant.

24. The plaintiff, having produced substantial documcr .ary evidence to establish his claim, had duly discharged his burden of proc'. Consequently, the onus shifted to the defendant to substantiate its plea t rat the plaintiffs failed to meet the specihc condition contained in t r : agreement in achieving the subscriber and collection targets. The fa: that the entire records in that regard were only with the defendant, arr despite having exclusive possession of the said relevant collection reco ds and relevant data, the defendant failed to produce them and.also abstain 'd fiom entering the witness box, thereby attracting adverse inference agains the Defendant.

25. Section 114(9) of the Evidence Act mandates tlrt when a party withholds best evidence, the Court may presume that sucf :vidence would, if produced, be unfavourable

26. ln Gopal Krishnaji Ketkar (l supra), the Suprem,: Court held that suppression of best evidence compels the Court to prej une against the .l 8 AKS,J&I'RKR,J CCCA No.312 2018 suppressor. b Wdhyadhar (2 supra) it was reiterated that a party avoiding the witness box must face adverse inference. Again, in Khati Hotels vale Lifiited. (3 supra), it was held that non-production of vital cuments disentitles the party frorn relief' Applying these principles, this Court holds that the defendant's ppresslon of collection records and abstention from the witness box warrant adverse inference that, had such evidence been produced, it would ,have gone agatnst him. The Trial Court committed an error in dismissing the suit without wing such inference. Once the adverse inference is drawn, coupled with unrebutted evidence of the plaintiff, the plaintiff s entitlement to the balance consideration is clearly established IX. CONCLUSION:

29. For the foiegoing reasons, this Court finds that (i) The Trial Court erred in not applying Section I l4(g) of the Evidence Act. (ii) The defendant suppressed best evidence and avoided the witness box, thereby vitiating his defense. \ 9 AKS:,J&'RKR,J CCCA No 112 2018 (iD The defendant suppressed best evidence and a-,< ided the witness box, thereby vitiating his defense. (iii) The plaintifls claim stands established on the srre rgth of Exs. A1- A49 and unrebutted testimony. X. RESULT:

30. The Appeal is allowed. The judgment and decree lated 23.01.2018 in O.S. No. 513 of 2005 is set aside.

31. The suit is decreed in favour of the plaintiff cr Rs.7,70,000/- (Rupees Seven Lakhs Seventy Thousand only) with it erest at 9Yo per annum from the date of suit till realization, together with : rsts throughout.

32. As a necessary corollary, all pending miscellane rus/interlocutory applications, if any, in the appeal, shall also stand closed. Sd/. A,\ .S.S.C.S.M. SARMA JOINT REGISTRAR \ /ffRUE COPY// \ i sEcTtoN oFFtcER To,

1. The XVll Additional Senior Civil Judge, City Civil Court, H rfls136s6. 2. One CC to SRI B.V. RAMA NARSTMHA REDDY, PART\ tN PERSON IOPUC]

3. One CC to SRl. A TULSI RAJ GOKUL, Advocate [OpU()] 4. Two CD Copies ASR/DL u ,t) w ,i'.. HIGH COURT DATED:0711012025 JUDGMENT+DEcREE CCCA.No.312 of 2018 ,/,, /.1 < ?"5. s. C) ()' iH': SIar€ i ,. tii:[ ?]ffi 6) t )tc.-.^* -==_jj *- ALLOWING THE APPEAL 6 i,l \v ) IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYOERABAD TUESDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HONOURABLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY CITY CIVIL COURT APPEAL NO: 3'12 OF 2018 Between B.V. Rama Narasimha Reddy, S/o. B.Bhasker reddy, aged 40 years, Occ Business/Proprietor of Vinusha Vision, R/o. Flat No.405, Major Residency, Opp. Police Officers Mess, Masab Tank, Hyderabad APPELLANTS AND M/s HATHWAY CABLE AND DATA COM LTD, A company incorporated under the companies act,1956 Having its registered offtce at Rahejas 4th Floor, Main Avenue, Santacruz (W), MUmbai -54 and Branch office at Flat no.603and604, 6TH Floor, Mahavir .Chambers, Liberty CrosS Roads, Himayat Nagar, Hyderabad-500029 RESPONDENT Appeal under Section 96 of C.P.C., against the Judgment and decree dated 23- O1-2O18 in O.S.No 513 of 2005 passed by the Hon'ble XVll Additional Senior Civil Judge, City Civil Court at Hyderabad. This appeal coming on for hearing, upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Case and upon hearing the arguments of Sri B.V. Rama Narsimha Reddy, Party in Person and of Sri S. Tulsi Raj Gokul, Advocate for the Respondent. That this Court doth Order and Decree as follows

1. That the City Civil Court Appeal be and the same is hereb r a owed; 2. That the judgment and decree dt.23.O1.2018 passed in ( ).S.No.513 of 2005 on the file of XVll Additional Senior Civit Judge, City Civi )ou(, Hyderabad is aside;

3. That the suit is decreed in favour of the plaintiff for Rs.7, / ),0001 with interest at 9% per annum from the date of suit till realization, tgether with costs throughout; and

4. That the Appellant is entifled to costs of Rs.12,1051 in th s appeat as detailed below and Rs. 12,0591 incurred in the Trial court as per J :cree to be paid by the Respondent. MEMORANDUM OF COSTS IN APPEAL Court Fee Paid in Appeal Stamps for Vakalatnama Stamps for Judgment of the Trial Court Stamps for decree of the Trial Court Value of Copy Stamp papers used for enclosures Advocate's fee (appeared as party in person) Batta Rs. P; 11.972-0-) 5- 0r) 2- 0') 2- 0c 94 0r 00 -0r 30 - (r( Total 12,105 - U //TRUE COPY// t- \ V.I; S.C.S.M. SARMA J( rNT REGtqtxAR---,- --..- ct f6(oFFtcER To

1. The XVll Additional Senior Civit Judge, City Civit Court, Hyrt rabad 2. Two CD Copies. W HIGH COURT DATED:0711012025 DECREB CCCA.No.312 of 2018 ALLOWING THE APPEAL I \\? )f