M/S J.B.Marketing & Finance vs Rakesh Khaitan & Anr. on 19 November, 2008

i.16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            RFA 616/2004


%                                 Date of Order : 19.11.2008

      M/S J.B.MARKETING & FINANCE       ..... Appellant
                Through: Mr.Sudheer Pandey, Adv.

                  versus

      RAKESH KHAITAN & ANR.               ..... Respondents
               Through: Nemo

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE J.R. MIDHA

1.    Whether reporters of local papers may be allowed
      to see the judgment?

2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?



: PRADEEP NANDRAJOG, J.(Oral)


1.           Heard learned counsel for the appellant.

2.           We note that the respondents have been served by

publication and vide order dated 9.7.2008 were proceeded

against ex-parte.

3.           The appellant was the plaintiff and had instituted a

suit for recovery of Rs.5,94,820/- on 17.8.2002.        Since the

appellant is a company registered under the Companies Act,

the suit was instituted and plaint was signed and verified by

one Shri S.S.Rawat, the Branch Manager of the appellant who
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 claimed authority to do so under the Board Resolution dated

30.5.2002, Ex.PW-1/1.      The suit was based on commercial

transactions as per a statement of account in which entries

pertaining to the transactions were entered, being Ex.PW-1/2.

4.           The witness of the plaintiff apart from proving the

Board Resolution, Ex.PW-1/1 and the statement of account,

Ex.PW-1/2, proved a legal notice of demand dated 27.4.2002,

Ex.PW-1/3 and postal receipts evidencing dispatch thereof by

registered post as also UPC, Ex.PW-1/4, Ex.PW-1/5 and Ex.PW-

1/6.   Since the notices were sent by Regd.A.D.Post at two

addresses the acknowledgment cards thereof, evidencing that

the postal docket was delivered to the notice, were proved as

Ex.PW-1/7 and Ex.PW-1/8.

5.           In spite thereof, the suit has been dismissed holding

that the certificate of incorporation of the plaintiff has not

been filed. The original minutes book has not been produced

and the original ledger and the bills in respect whereof debit

entries were made have not been produced. So holding, the

suit has been dismissed.

6.           We may only note that the witness of the appellant

was not cross-examined by the respondents who were ex-

parte at the trial. Thus, each and every statement made on

oath by the witness of the appellant had to be accepted.

Further, what was the learned Trial Judge doing when he was

exhibiting the documents? Objection to the admissibility and

RFA-616-04                                                Page 2 of 3
 proof of a document has to be raised when a document is

sought to be proved. If so done, the party concerned can take

remedial actions there and then.

7.           Since the witness of the appellant was not cross-

examined, we hold that the testimony of the witness of the

appellant being not challenged, has to be accepted in toto.

8.           In respect of entries in the statement of account

and the same required to be proved by producing the original

documents we may record that only when a party challenges

an entry in a statement of account has the same to be proved.

If an entry in the statement of account is not challenged, the

party relying upon the statement of account has not to justify

the said entry.

9.           We allow the appeal. The impugned judgment and

decree dated 23.7.2003 is set aside.         Suit filed by the

appellant is decreed in sum of Rs.5,94,820/-.         We grant

appellant interest on the said sum from the date of the suit till

realization @9% per annum.

10.          The appellant shall also be entitled to costs all

throughout.



                                   PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.
NOVEMBER 19, 2008
Dharmender

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