KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:2/2003 JUDGMENT DATED:03.10.2007 PRESENT JUSTICE SRI.T.M. HASSAN PILLAI : PRESIDENT SMT. A.RADHA : MEMBER M/S Thekkanat Tiles Pvt. Ltd., Kattachira, Kidangoor. : APPELLANT (By Adv: Sri.Chirayinkil C.P.Bhadrakumar) V. John Chandy, Vattakkunnel Pulickal, Earekkadavu, Kottayam. : RESPONDENT (By Adv: Sri.S.A.Karim) JUDGMENT JUSTICE SHRI. T.M. HASSAN PILLAI : PRESIDENT The complaint filed by the respondent herein for return of the amount of Rs.25,000/- alleged to have received by the appellant by way of advance at the time of alleged entering into the contract for supply of 30,000/- wire cut bricks and also claiming compensation for the alleged deficiency of service on the part of the appellant in not supplying bricks to him was allowed by the lower forum and it directed return of the amount of Rs.25,000/- with interest at 9% per annum from date of filing of this complaint (25..9..1999) till realization. The lower forum awarded compensation of Rs.10,000/- and also directed the appellant to pay to the complainant by way of cost Rs.1000/-. Further direction given was that order was to be complied with within 45 days from the date of receipt of the copy of the order impugned. 2. Challenge is made to the impugned order passed by the CDRF, Kottayam in OP:No:445/99 by preferring this appeal and the learned counsel for the appellant/opposite party before the lower forum submitted questioning the propriety of the order passed by the lower forum that the forum below has not properly considered the case pleaded by the parties and also failed to appreciate the evidence adduced by the parties in the proper perspective. It is contended that there was failure of justice. The learned counsel submitted before us that the very case pleaded in the legal notice evidenced by Ext.A2 totally disproved the case pleaded in the complaint regarding payment of advance for supply of 30,000 wire cut bricks. He submitted that no case was put forth in the legal notice by the complainant that amount of Rs.25,000/- alleged to have paid by way of advance for supply of 30,000 bricks was received by one P.Raveendran who was alleged to be in charge of the office of the appellant at that time and that receipt was signed by Raveendran. It is contended by the learned counsel for the appellant that non making of any such specific allegation in the legal notice is sufficient to overthrough the case pleaded in the complaint that on 30..3..1999 when he went to the office of the appellant one P.Raveendran who was in charge of office received the amount by way of advance and he passed receipt evidenced by Ext.A1 on behalf of the appellant. The fact asserted in Ext.A1 notice is that complainant gave an advance of Rs.25,000/- to the defendant (appellant) for supply of 30,000 wire cut bricks at the rate of Rs.2,300 for 1,000 wire cut bricks and the defendant/appellant issued receipt No:1001 dated:30..3..1999 for the said payment of advance. As the alleged receiving of advance and the alleged entering into the contract for the supply of wire cut bricks is denied the burden is on the complainant/respondent to prove his case. It is argued that in the legal notice it is asserted that the appellant himself directly received the amount of advance from the complainant and passed the receipt. Counsel submitted that giving go by to the case put forth in the legal notice in the complaint a new case is pleaded in the complaint that the amount was received by one P.Raveendran who was in charge of the office of the appellant at Kidangoor and he passed the receipt. According to the counsel that fact by itself is sufficient to disprove the case of the complainant and to accept the case of the appellant that he had not received any advance nor had he had entered into a contract for supply of 30,000 wire cut bricks to the complainant/respondent as alleged in the complaint. The appellant also contended that Ext.A1 is a forged receipt forged by the complainant/respondent in collusion with one P.Raveendran who was a work contractor for supply of sand and other materials. 3. So the question that is to be considered by us in this appeal is whether the impugned order passed by the forum below is sustainable and whether the materials on record were properly analysed in the proper perspective by the forum below. Before proceeding to answer that question the legal position laid down by the apex court in Anil Rishi’s case is to be 1.Anil Rishi V. Gurubaksh Singh, 2006 AIR SCW 2394.
considered by us. Following observation has been made by the apex court. “The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:- ‘Sec.101. Burden of proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person’ In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.” 4.We have gone carefully through the pleadings and materials on record and in our considered view there is force in the submission made on behalf of the appellant by his learned counsel before us. No case is pleaded or proved by the complainant that at that time of alleged payment of advance the appellant was present in his office at Kidangoor and the appellant himself personally received the amount of Rs.25,000/- for the supply of 30,000 wire cut bricks. From the legal notice issued by the complainant it is clear that the case of the complainant at the time of sending that legal notice was that he paid directly to the appellant advance of Rs.25,000/- and the receipt was passed to him by appellant/opposite party. No such case is pleaded in the complaint. The other ground to discard the case of the complainant is that no evidence is forthcoming to show that P.Raveendran who is alleged to have issued the receipt was at any time employed under the opposite party/appellant or he was the manager of the appellant. The allegation in the complaint is that when the complainant went to the office of the appellant Raveendran was in charge of the office and he signed the receipt. There is no specific case pleaded in the complaint that Raveendran was the manager of the appellant nor has he is specifically pleaded that Raveendran was one of the employees of the appellant. The only allegation made is that he was in charge of the office at the time. It is not mentioned in the complaint or in his affidavit under what capacity Raveendran was in charge of the office of the appellant. It is only in his evidence complainant stated that Raveendran was the manager of appellant’s office. 5. The other ground to non suit the complaint is that Raveendran was not examined as a witness by the complainant to prove that he had received the amount from the complainant for and on behalf of appellant and he was in charge of the office of appellant on 30/3/99 and the signature in Ext.A1 receipt is that of him (Raveendran). Apart from the interested assertion of the complainant in the complaint, as well as his affidavit that Raveendran was in charge of the office of appellant no documentary evidence has been produced by him to prove that fact. No doubt the muster roll is maintained by the appellant and the muster roll is not produced. The legal position is that it is the duty of the party which is in possession of a document which could be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof (National Insurance Company Ltd., New Delhi V. Jugal Kishore and Others (1998) 1 SCC 626. We may point out here that if the muster roll contained the name of Raveendran as an employee or manager of appellant that is a document which would be helpful in doing justice in the case. Appellant could have produced the muster roll at least to prove the fact that at the relevant time Raveendran was not his manager or his employee. No adverse inference can be drawn against the appellant on the ground of non production of muster roll and the reason is that specific contention of the appellant is that Raveendran was at no time his manager or an employee under him. No application has been moved before the lower forum by the complainant to cause the production of muster roll so as to prove that Raveendran’s name is included in the muster roll as an employee. No doubt it is the case of the appellant that there was full time manager in the office at Kattachira appointed to look after the day today functioning of the factory (Ext.A4 reply notice to Ext.A2). He has not admitted that Raveendran was his manager at any time so it is not possible to infer from the reply notice that Raveendran was the manager of the appellant. It is true that the case is set up in the reply notice(Ext.A4) is that the receipt is created by the complainant in collusion with the former work contractor. The assertion made in the reply notice is that my client firmly believe that your client in collusion with the former work contractor of the factory is now trying to extract money from my client by forgoing the alleged receipt. Thus your client is trying to exercise fraud on my client. It is true either in the written version or in the evidence of RW1 the appellant has not disclosed who was the manager of his office on 30..3..1999. It is also true that he has admitted that muster roll will show who was the manager at the time of giving Ext.A1. However that fact by itself is not sufficient to accept the case of complainant. It is the evidence of the complainant that after receiving advance from him he had not seen Raveendran. No steps were taken to get examined Raveendran as a witness. There is no case for the complainant that if examined as a witness Raveendran would not give evidence in support of his case of payment of advance to the appellant and entering into the contract. So on the basis of the probabilities of the case we are not in a position to uphold the order passed by the lower forum and the course open to us is to accept the case of the appellant. 6. It is true that we are not in a position to accept that the case attempted to be proved during the course of trial by the appellant that his factory being a tile factory manufacturing only roof tiles in the year 1999 and wire cut bricks were not manufactured in his factory. For rejecting his case on that aspect is that it is asserted in the reply notice (Ext.A4) that “if your client is in need of bricks he can approach my client and purchase the same from the factory by direct payment.” 7. No doubt in Ext.A2 lawyer notice the number of receipt issued is clearly stated and it is argued that complainant’s case should not be thrown away merely on the ground that it is asserted in the legal notice that that receipt is given by the appellant and not by Raveendran for and on behalf of appellant. It is also contended before us that it is clear from the evidence of appellant that he denied the giving of such a receipt (A1 receipt) and contended that Ext.A1 is a forged one without seeing Ext.A1. It is true that appellant’s evidence is to the effect that Ext.A1 receipt was not seen by him at the time of sending Ext.A4. We are not prepared to accept the contentions. First of all the burden is on the complainant to prove that that receipt is given on receiving Rs.25,000/- by the manager of appellant. The person who is alleged to have given receipt is not proved to be the manager of appellant at the material time. Appellant’s case is that Raveendran was not his manager it is possible for the appellant to ascertain Ext.A4 that Ext.A1 is a forged one on the ground that there was no such manager (Raveendran) and no such transaction was entered into for supply of bricks and the receipt is a forged one even without seeing it. It is a matter of common knowledge that when receipt is created it will be always in the name of appellant’s factory and therefore the fact that Ext.A1 contained the name of appellant’s factory is not a ground to accept the complainant’s case. After creating a false receipt there is no difficulty to mention the number and date of receipt in the legal notice. So the only course open to us is to upturn the order passed by the lower forum and to dismiss the complaint. In the result appeal is allowed settingside the impugned order and the complaint is dismissed. JUSTICE T.M. HASSAN PILLAI : PRESIDENT SMT.A. RADHA : MEMBER | 
