Tamil Nadu Civil Supplied Corporation v. Manickammal

IN THE HIGH COURT OF JUDICATURE OF MADRASDATED: 08.10.2012CORAM:THE HONOURABLE MR. JUSTICE G.RAJASURIAA.S.No.866 of 2008Tamil Nadu Civil Supplied Corporation,42, Thambusamy Road,Chennai-10... Appellantvs.Manickammal... Respondent Appeal against the judgement and decree dated 8.10.2007passed by the III Additional Judge, City Civil Court, Chennai, inO.S.No.4129 of 2000.For appellant :: Mr.C.Munusamy For Respondent :: Mr.Muthumani Doraisamy,Sr.counsel for M/s.R.T.DoraisamyJUDGMENT This appeal is focussed by the plaintiff as against thejudgement and decree dated 8.10.2007 passed by the III AdditionalJudge, City Civil Court, Chennai, in O.S.No.4129 of 2000, which wasfiled for recovery of money.2. The parties, for convenience sake, are referred to hereunder according to their litigative status and ranking before thetrial Court.3. The epitome and the long and short of the germane factsabsolutely necessary for the disposal of this appeal would run thus:A. The appellant herein, as plaintiff, filed the suitO.S.No.4129 of 2000, as against the respondent herein/defendantseeking the following reliefs:"...to pass a judgement and decree in favour ofthe plaintiff as against the defendant:i) directing the defendant to pay a sum ofRs.9,66,063.78. https://hcservices.ecourts.gov.in/hcservices/ ii) directing the defendant to pay interest onthe said sum of Rs.9,66,063.78 at 12% per annum from thedate of the plaint to the date of decree.iii) directing the defendant to pay costs of thesuit."(extracted as such)on the main ground that the defendant was doing business in hullingand as such, she was appointed as hulling agent by the plaintiff inPeriyar Region and in Gobichettipalayam District for hulling paddy inher rice mill at Siruvalur Town under the name and style of VenkatesaRice Mill. (ii) An agreement emerged between the plaintiff and thedefendant on 17.1.1975 and the latter was appointed as the hullingagent. The terms and conditions are found set out therein. Thestocks purchased and entrusted with the defendant by the plaintiff,was expected to be kept in safe custody by the defendant-the agentand the latter was solely responsible for the proper storage andsafety of such items.(iii) The go-downs concerned were agreed to be under doublelock system. One lock being operated by the defendant-the agent andthe other by the official of the plaintiff-the Tamil Nadu CivilSupplies Corporation of India. The agent could receive only suchquantities of paddy that would be allotted by the plaintiff or itsauthorised representative and the defendant should hull it at therates mentioned in Schedule-I of that agreement.(iv) While so, on various dates between 18th December 1975 and1st December 1076 a total quantity of 1317.639.400 metric tonnes ofpaddy comprising Tanjavur Kuruvai 1975, Thanjavur Samba 1976, NorthArcot Samba 1976, Chengalpattu Samba 1976 and D.P.C. (Direct purchaseCentre) Samba 1976 was delivered to the defendant for hulling.(v) Out of the above paddy delivered to the defendant37.031.000 metric tonnes of paddy were taken back from the (n.c) onthe 10th January, 1977 in view of the consistent defaults on the partof the hulling agent.(vi) Out of the above paddy entrusted, 249.852.400 metrictonnes comprised of Thanjavur Kuruvai 1975, being the first, secondand third sort, 164.224.400 metric tonnes of rice was due. Thedefendant failed to account for the same, but delivered only146.601.200 metric tonnes of rice. Against 1386 gunny bags deliveredby the plaintiff to the defendant with Thanjavur Kuruvai 1975 paddy,the defendant delivered only 1966 bags with rice; 900 bags weretransferred to other hulling agents from the defendant because ofdefaults of the defendant. The defendant was allowed a concession inrespect of Thanjavur Kuruvai 1975 paddy at 5% in respect of gunnybags issued and this accounted for 217 gunnies. Thus, the defendant https://hcservices.ecourts.gov.in/hcservices/ had to account for 1303 gunnies out of the total lot of 4386 gunniesentrusted to her. There were also a shortage in terms of riceamounting to 17.623.200 metric tonnes.(vii) In respect of Thanjavur Samba 1976, the plaintiff hadentrusted 9160 gunny bags with 525.736.000 metric tonnes of paddycomprising of the first, second and third sort. The defendant had toaccount for 356.385.400 metric tonnes of rice in respect of the abovepaddy. The defendant delivered 300.439.400 metric tonnes of rice andthere was thus a shortage of 55.946.000 metric tonnes of rice. Inrespect of a total of 9160 gunny bags delivered with Thanjavur Samba1976, 4006 gunny bags were returned with rice and 684 empty gunnieswere returned making up a total of 4,692 gunny bags and there wasthus a shortage of 4,468 gunny bags to be returned. (viii) The plaintiff had delivered to the defendant 354 gunnybags with (n.c.) metric tonnes of North Arcot Samba 1976 of the firstsort in respect of which, first sort rice of 18.415.700 metric tonneswas due. The defendant delivered 17.321.800 metric tonnes of riceand 233 gunny bags and there was thus a shortage of 1,093.900 metrictonnes of rice. There was also shortage of 121 gunny bags.(ix) The plaintiff had further delivered to the defendant 260bags of Chengalpattu Samba 1976 weighing 19.41.000 metric tonnes ofpaddy of the first sort and the defendant had accounted for 5.447.200metric tonnes of rice. But the defendant had to account for13.198.800 metric tonnes of rice of the first sort. There was thus ashortage in respect of this variety of 7.751.600 metric tonnes ofrice. The defendant had delivered 74 gunny bags with rice and 186empty gunnies making up a total o 260 gunnies and there was noshortage in respect of gunnies.(x) The plaintiff had been producing paddy from Direct Centresand out of the paddy procured by the plaintiff from Direct PurchaseCentres, the plaintiff had delivered Samba 1976 paddy of 495.155.000metric tonnes in 8350 gunny bags. Out of the aforesaid paddy aquantity of 37.031.000 metric tonnes were taken delivery of from thedefendant and delivered to other hulling agents and the defendant hadhence to account for the rice for the balance of paddy. Out of atotal quantity of 308.381.200 metric tonnes of rice to be accountedfor by the defendant, the defendant delivered only 220.406.600 metrictonnes of rice, and there was thus a shortage of 87.974.600 metrictonnes of rice. Out of the total gunny bags of 8350 the defendanthad returned 2,939 gunnies with rice and 684 empty gunnies making upa total of 3,623 gunnies and she failed to account for and deliver4,727 gunny bags.(xi) On inspection it was found by the officials of theplaintiff Corporation that there was shortage, at the instance of thedefendant, to a tune of 170.389.300 metric tonnes of rice. As per https://hcservices.ecourts.gov.in/hcservices/ the terms of the agreement, the defendant was liable to pay a sum ofRs.7,10,341.02. Despite demands, there was no response from thedefendant. Hence the suit. The other details, for the purpose of disposal of thisappeal, are not germane as of now. As such, the plaintiff claimedthe said amount with 12% interest from 1.1.1977 to 30.4.1981.However, the interest is restricted for the period between 1.5.1978and 30.4.1981 at the rate of 12% per annum, which was quantified atRs.2,55,722.76. As such, the total suit amount was Rs.9,66,063.78.B. Whereas, the defendant challenging and impugning theaverments/allegations in the plaint, filed the written statementwhich could tersely and briefly be set out thus:(i) The plaintiff has to strictly prove the averments in theplaint as those are fraught with falsities.(ii) There was no shortage at all at the instance of thedefendant. There is no proof to show that at the instance of thedefendant there was any misappropriation of the stock or that therewas default on the part of the defendant.C. Whereupon the lower Court framed the issues. Up went thetrial, wherein on the plaintiff's side one C.R.Veeraraghavan examinedhimself as P.W.1 and Exs.A1 to A54 were marked. The defendantexamined herself as D.W.1 and marked Exs.B1 to B6 on her side.D. Ultimately, the trial Court dismissed the suit.4. Being aggrieved by and dissatisfied with the judgement anddecree of the trial Court, this appeal has been focussed by theplaintiff on various grounds.5. Heard both sides.6. The learned Senior counsel for the defendant would putforth and set forth his arguements, which could pithily and preciselybe set out thus: (i) The appeal focussed by the plaintiff as against thedismissal of the suit is not tenable for the simple reason that theonus of proof, which was cast on the plaintiff, was not discharged,unless the plaintiff could prove specifically that certain amount ofpaddy was entrusted to the defendant for hulling and that thedefendant committed default in giving the end product to theplaintiff, the question of mulcting the defendant with the liabilitywould be a well neigh impossibility. https://hcservices.ecourts.gov.in/hcservices/ (ii) Several documents were not marked before the trial Court,which also in the judgement clearly observed that while the case wastransferred from the original side of the High Court to the trialCourt which passed the judgement, certain documents were not sent;that there were criminal proceedings also and that some documentswere sent to the Criminal Court. Wherefore, the question ofmulcting the defendant with liability would be untenable. Ultimatelythe lower Court dismissed the suit, warranting no interference inappeal.7. Consequent upon such representation and also on perusal ofthe records, this Court took steps to ascertain the true facts. 8. There were lot of correspondences emerged between the HighCourt registry and the criminal Court concerned as well as the trialCourt and ultimately, the relevant particulars were fretted out andwith the help of both sides, the lower Courts as well as theregistry, what I could understand is that there are certain documentstouching upon entrustment of the paddy by the plaintiff with thedefendant, but those documents were not exhibited during trial. 9. No doubt it was the duty of the plaintiff, as keen asmustard to see that those documents were exhibited. Butunfortunately that was not done so. 10. The core question arises as to whether one moreopportunity could be given to the plaintiff to do it. 11. I recollect the legal adage that 'every trial is a voyageof discovery, in which truth is the quest, as found highlighted inthe following precedents of the Hon'ble Apex Court:(i) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida SequeriaFernandes and others vs. Erasmo Jack de Sequeria (dead) throughL.Rs.] Certain excerpts from it would run thus:"36. In Ritesh Tiwari and another vs. State ofUttar Pradesh and others,2010(10) SCC 677, this courtreproduced often quoted quotation which reads as under:"Every trial is voyage of discovery in which truthis the quest".37. This court observed that the power is to beexercised with an object to sub-serve the cause of justiceand public interest and for getting the evidence in aid of ajust decision and to uphold the truth.38. Lord Denning, in the case of Jones v. NationalCoal Board, 1957 (2) QB 55 has observed that: https://hcservices.ecourts.gov.in/hcservices/ "In the system of trial that we evolved inthis country, the Judge sits to hear and determinethe issues raised by the parties, not to conduct aninvestigation or examination on behalf of the societyat large, as happens, we believe, in some foreigncountries."39. Certainly, the above, is not true of the IndianJudicial System. A judge in the Indian System has to beregarded as failing to exercise its jurisdiction and therebydischarging its judicial duty, if in the guise of remainingneutral, he opts to remain passive to the proceedings beforehim. He has to always keep in mind that "every trial is avoyage of discovery in which truth is the quest." In orderto bring on record the relevant fact, he has to play anactive role; no doubt within the bounds of the statutorilydefined procedural law.51. In the administration of justice, judges andlawyers play equal roles. Like Judges, lawyers also mustensure that truth triumphs in the administration of justice.52. Truth is the foundation of justice. It must bethe endeavour of all the judicial officers and judges toascertain truth in every matter and no stone should be leftunturned in achieving this object. Courts must give greateremphasis on the veracity of pleadings and documents in orderto ascertain the truth."(ii) 2010(10) SCC 677 [Ritesh Tiwari and another vs. State ofUttar Pradesh and others]. Certain excerpts from it would run thus:"37. Section 165 of the Evidence Act, 1872empowers the court to ask questions relevant, irrelevant,related or unrelated to the case to the party toascertain the true facts. The party may not answer thequestion but it is not permitted to tell the court thatthe question put to him is irrelevant or the facts thecourt wants to ascertain are not in issue. Exercise ofsuch a power is necessary for the reason that thejudgment of the court is to be based on relevant factswhich have been duly proved. A court in any case cannotadmit illegal or inadmissible evidence for basing itsdecision. It is an extraordinary power conferred uponthe court to elicit the truth and to act in the interestof justice. A wide discretion has been conferred on thecourt to act as the exigencies of justice require. Thus,in order to discover or obtain proper proof of therelevant facts, the court can ask the question to theparties concerned at any time and in any form. "Every https://hcservices.ecourts.gov.in/hcservices/ trial is voyage of discovery in which truth is thequest". Therefore, power is to be exercised with anobject to subserve the cause of justice and publicinterest, and for getting the evidence in aid of a justdecision and to uphold the truth. The purpose being tosecure justice by full discovery of truth and an accurateknowledge of facts, the court can put questions to theparties, except those which fall within exceptionscontained in the said provision itself (vide JamatrajKewalji Govani v. State of Maharashtra and ZahiraHabibulla H.Sheikh vs. State of Gujarat].12. A mere running of the eye over those decisions wouldunambiguously and unequivocally highlight and shed light on the pointthat a Judge is not expected to simply decide the case based onmaterials placed before the Court. He should have the intention todelve deep into the matter and cull out the truth.13. Here is the case between the public sector undertaking,namely, the plaintiff and an individual-a business person. The trialCourt was totally wrong in simply throwing the baby along with bathewater. He cannot simply hold that the documents were not availableand that he was dismissing the case. To say the least, the methodand manner in which the lower Court washed its hands from itsresponsibility is far from satisfactory. No doubt, there were somelaches on the staff of the Subordinate judiciary and also on thepart of the advocate, who appeared for the plaintiff in pursuing thematter strictly in accordance with law.14. Now then, it transpired that there are certain vitaldocuments, which have to be exhibited. This is admittedly a casewhere double lock system was contemplated, which means that thegodown should be under the lock and key of both the parties i.e. theofficials of plaintiff as well as the defendant and it has to befound out as to how then the shortage occurred. Not to put too finea point on it, the trial turned out to be an ill wind that blew noone any good.15. In such a case opportunity should be given to theplaintiff to exhibit those documents, whereupon the defendant couldcross-examine such witness with reference to those exhibits and alsoadduce rebuttal evidence in that regard. 16. On balance, I would like to set aside the judgement anddecree of the trial Court and remit the matter back to the trialCourt with the direction that the plaintiff shall be givenopportunity to mark additional documents by recalling the witnessesor for summoning fresh witnesses. Whereupon the defendant shall havethe opportunity of cross-examining those witnesses and also recall https://hcservices.ecourts.gov.in/hcservices/ her own witnesses in addition to summoning fresh witnesses and adducerebuttal evidence.17. Accordingly the judgement and decree of the trial Court isset aside and the matter is remitted back to the trial Court to carryout the aforesaid mandates untrammelled and uninfluenced by any ofthe observations made by this Court. Both the parties shall appearbefore the trial Court on 15.11.2012.18. The learned Senior counsel for the respondent/defendantwould make an extempore submission, on hearing this judgementpronounced, that the police, in connection with the criminal caseconducted search in the premises of the defendant and they took awaythe registers and documents available with the defendant and if thoseregisters and documents are produced, certainly that would prove theinnocence and the non-liability of the defendant so far this case isconcerned. Hence, direction also is issued to the plaintiff as wellas to the persons concerned that if any summons is issued by thetrial Court, at the instance of the defendant, the same shall beresponded to positively. 19. In the result, the appeal is disposed of accordingly.However, there is no order as to costs. The records shall be sent tothe trial Court immediately.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarMskTo1. The III Additional Judge, City Civil Court, Chennai.2. The Section Officer, Vr Section, High Court, Madras.+ 1 cc to Mr. C. Munusamy, Advocate Sr.63030+ 1 cc to Mr.R. T. Doraisamy, Advocate SR.62867A.S.No.866 of 2008JRG(CO)Eu 29.10.12