IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.136 OF 2014 BETWEEN:
M/s. S-Mac Security Services Pvt. Ltd., No.232, 6th ‘A’ Main, II Block HRBR Layout, Near Banasawadi Police Station, Kalyan Nagar, Bangalore-560 043.
Rep. by its Managing Director, Lt. Col. K.M.Machaiah. …Appellant (By Sri. K.S.Bheemaiah, Advocate) AND:
M/s. Chaitra Industries No.30, I Floor, 5th Main Road, Gandhinagar, Bangalore-560 009. Rep. by its Proprietor, Sri. T.N. Paramesh. …Respondent (By Sri. B.C.Srirama Reddy, Advocate) This Regular First Appeal is filed under Section 96 read with Order 41 Rule 1 of CPC, against the judgment and decree dated:21.09.2013, passed in O.S.No.5432/2011, on the file of the XX Addl. City Civil and Sessions Judge, (CCH No.32) Bangalore City, dismissing the suit for recovery of money.
This Regular First Appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This is the plaintiff’s appeal. The present plaintiff had instituted a suit against the present respondent arraigning him as defendant in O.S.No.5432/2011, in the Court of learned XX Addl.City Civil & Sessions Judge, (CCH-32), Bengaluru City, (hereinafter for brevity referred to as `trial Court’), for recovery of a sum of `1,18,821/-, with future interest at the rate of 12% p.a.
2. The summary of the case of the plaintiff in the trial Court was that, it is a Private Limited Company registered under the provisions of Companies Act, 1956 and doing business in providing Security Services to its customers. The defendant which is a Proprietorship concern, approached the plaintiff-Company with a request to provide security services for its Toll Gate and Entry Gates at Brindavan Gardens, KRS, Mysuru and a Petrol Bunk at Hassan. Accordingly, the plaintiff- Company wrote a letter to the defendant by its letter dated 29.6.2009, explaining their Company’s dealings with their clients in providing security services. Subsequent to the same, on 2.7.2009, the plaintiff- Company has sent a Security Agreement to the defendant to sign the same, but, the same has not been returned by the defendant. Still the plaintiff-Company started providing security services as per the requirement of the defendant by fixing the service charges at `7,800/- per month for Security Guards and a sum of `10,500/- for Security Supervisor.
It is the further contention of the plaintiff that towards the utilisation of security services provided by the plaintiff, the defendant was required to pay the service charges on monthly basis on or before 10th of next month. The defendant had paid July 2009 bill amount during the month of August 2009 and thereafter, failed to pay the subsequent bills for the months of August, September and October 2009. However, on repeated requests and demands, the defendant has paid a sum of `50,000/- on 29.12.2009 as a part payment and all of a sudden, wrote a letter dated 1.11.2009 to the plaintiff-Company stating that it is going to remove the services of the plaintiff- Company’s security services due to the loss in its business. Accordingly, the plaintiff withdrew its services from Mysuru, as well from Hassan. Still the defendant failed to settle the account and pay the balance due. This made the plaintiff to write letters to the defendant calling upon it to pay the arrears. Despite which, the defendant has not cleared the dues. Though a legal notice dated 20.12.2010 was sent, the defendant did not respond to the said legal notice. Thus, the plaintiff was constrained to institute the suit.
The plaintiff has claimed the following amount in its plaint :
i) Towards Security Service charges rendered by the plaintiff Company at KRS Brindavan, at Mysore, as on 31.03.2011 .. Rs.83,983.00 ii) Towards Security Service charges rendered by the plaintiff Company at Hassan Petrol Bunk, as on on 31.03.2011 .. Rs.15,442.00 iii) Interest on the above amount at 12% p.a. from 1.01.2010 to 01.07.2011 .. Rs.17,896.00 iv) Notice Charge .. Rs.01,500.00 ………………………….
TOTAL Rs.1,18,821.00 …………………………… The plaintiff has claimed the said amount together with interest on the said claim amount at the rate of 12% p.a.
3. In response to the summons served upon it, the defendant appeared through its counsel and has filed its written statement. In its entire written statement, the defendant has repeated the plaint averments paragraphwise and at the end of each of the paragraph has stated that those averments are denied as false. Further at the end of the written statement, the defendant in Para-13 has stated that it had already cleared the security bill of `5,500/- for each Security Guard, hence there is no pending amount of security bill. The defendant has also alleged that the plaintiff has not provided good security service and the defendant has to suffer a loss of `1,50,000/- due to theft of Billing Machine. At the end of said paragraph, the defendant has also stated that the defendant is not due for any amount and also the plaintiff has not provided security services and there is no supervision. With this, it prayed for dismissal of the suit.
4. Based on the pleadings of the parties, the trial Court framed the following issues :
1. Whether the plaintiff company proves that it had provided Security Services at the Toll Gate and Entry Gate at KRS Brindavan Gardens, Mysore and Petrol Bunks at Hassan at the request of the defendant company and towards the same, the defendant company is liable to pay Rs.1,18,821 to the plaintiff company?
2. Whether the plaintiff company proves that it is entitled for interest? If so at what rate?
3. Whether the defendant company proves that this court has no territorial jurisdiction to entertain the plaintiff’s suit?
4. Whether the defendant further proves that it had no pending amount to be paid to the plaintiff company towards Security Service Charges either to KRS Brindavan Gardens, Mysore or the Petrol Bunks at Hassan as averred?
5. Whether the plaintiff company is entitled to recover the suit claim amount from the defendant?
6. To what order or decree?
In support of its plaint, the plaintiff got examined one Sri B.Eshwaraiah, who is said to be the Officer-Legal in the plaintiff-Company as PW-1 and through him, got marked documents at Exs.P-1 to P-14. The defendant did not examine any witness from its side nor got produced and marked any documents as exhibits.
After hearing both side, the trial Court by its judgment and decree dated 21.9.2013, while answering issue Nos.1, 2, 3 and 5 in the negative and holding issue No.4 as does not arise for consideration, proceeded to dismiss the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal.
5. Lower Court records were called for and the same are placed before this Court.
6. After the arguments on the main appeal from the appellant’s side was heard and the matter was listed for the respondent’s argument and reply if any, the appellant came up with two interlocutory applications i.e., IA.No.1/2019 filed under Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC’), seeking a direction for the respondent to produce the documents shown in the application and IA.No.2/2019 filed under Order XLI Rule 27(1) (aa) read with Section 151 of CPC, seeking permission to produce the additional documents/evidence as per the list shown in the application.
The respondent has filed their statement of objections to these applications.
7. With the consent from both side, both IA.Nos.1 and 2 of 2019 were taken up for disposal along with the main appeal, as such, further argument of the learned counsel for the appellant on the main appeal, as well on interlocutory applications were heard and also the argument of learned counsel for the respondent was heard.
8. Perused the materials placed before this Court, including the memorandum of appeal and the impugned judgment.
9. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
10. In view of the above, the points that arise for my consideration are :
1) Whether IA.No.1/2019 deserves to be allowed?
2) Whether IA.No.2/2019 deserves to be allowed?
3) Whether the plaintiff has proved that the defendant is liable to pay it the suit claim of `1,18,821/- together with interest thereupon?
4) Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
11. Learned counsel for the appellant in his argument submitted that certain documents are necessary for the adjudication of this matter and those documents are with the defendant, as such, he has filed IA.No.1/2019, seeking a direction for the respondent/defendant to produce those documents. He further stated that thinking that the defendant/respondent would enter witness box and he would elicit answers from it, the applicant/appellant did not produce certain documents. Since the defendant did not enter the witness box, now the appellant is constrained to produce those documents, as such, IA.No.2/2019 is filed.
12. With respect to the main appeal, learned counsel for the appellant submitted that the trial Court has not appreciated the evidence placed before it in its proper perspective, more particularly, the documents at Ex.P-3 and Ex.P-4. He also submitted that the statement of account at Ex.P-13 and Ex.P-14 also shows the outstanding liability from the defendant to the plaintiff. The claim made by the plaintiff through the legal notice since has remained unresponded, it is established that the defendant is in due of the suit claim to the plaintiff. However, the trial Court has erroneously dismissed the suit of the plaintiff.
12. Learned counsel for the respondent in his very brief argument in its entirety only submitted that plaint is vague and the plaintiff has suppressed the facts and as not approached the Court in clean hands. The suit of the plaintiff has to stand on its own leg. The plaintiff has not produced documents and not proved the case, as such, the trial Court has rightly dismissed the suit of the plaintiff.
13. A careful study of the plaint averment would go to show that the plaintiff has claimed the alleged service charges towards the alleged supply of the security services in the form of manpower by it to the defendant’s two business concern, one is for collection of the toll at Toll Gate at entry point in KRS Brindavan Gardens at Mysuru and at a Petrol Bunk at Hassan, both of which are said to have been being run as a business concern of the defendant. The plaintiff’s specific plaint averment, as well the evidence of PW-1 in his examination-in-chief in the form of affidavit evidence is that, in that connection, the plaintiff-Company had sent a Security Agreement to the defendant to sign the same on 2.7.2009, however, the defendant did not return the said agreement. Despite the same, the plaintiff- Company started providing security services to it. Though the defendant paid the service charges for the month of July 2009, for the subsequent three months i.e., August, September and October 2009, the defendant has committed default. Even according to the plaint averment, the supply of the manpower as security services was discarded from November 2009 onwards. It is in this regard, the plaintiff has claimed a suit claim of `1,18,821/- from the defendant together with interest thereupon.
14. The trial Court in the impugned judgment and decree has reasoned for its finding that the alleged agreement has not been placed or produced by the plaintiff, as such, there is no proof of any written agreement between the parties. It also observed that there is no reason to believe that there was any stamped agreement between the parties. It further stated that the plaintiff has failed to prove that it had supplied the security services, as contended, to the defendant for the alleged agreed service charges. As such, in the absence of there being any proof, the plaint should fail. The trial Court disbelieved Ex.P-3 and Ex.P-4, as such, it did not consider those two documents as the one which proves the case of the plaintiff. It further observed that the plaintiff has not given any details as to what was the security services it was agreed and undertaken to provide and what services it provided with the necessary details as to the security persons said to have been provided by it to the defendant. It also observed that the evidence of PW-1 is also bereft of all these details. It is to meet these points, probably the appellant has come up with the present applications i.e., IA.1/2019 and IA.No.2/2019.
15. In IA.No.1/2019, which is filed by the appellant under Section 151 of CPC, the appellant/applicant has sought for the production of the following documents from the defendant/respondent :
“ 1. The Monthly Attendance Summary maintained by the Appellant Company for the Month of July 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
2. The Monthly Attendance Summary maintained by the Appellant Company for the Month of August 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
3. The Monthly Attendance Summary maintained by the Appellant Company for the Month of September 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
4. The Monthly Attendance Summary maintained by the Appellant Company for the Month of October 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
5. The Monthly Attendance Summary maintained by the Appellant Company for the Month of September 2009, in respect of the Security Services given to the Respondent at Reliance Petrol Bunk at Hassan.
6. The Monthly Attendance Summary maintained by the Appellant Company for the Month of October 2009, in respect of the Security Services given to the Respondent at Reliance Petrol Bunk at Hassan.
7. Security Agreement 02.07.2009, entered into between the Appellant Company and the Respondent herein.”
16. In IA.No.2/2019 filed by the very same applicant/appellant, filed under Order XLI Rule 27(1)(aa) read with Section 151 of CPC, the appellant/applicant has sought permission to produce the photocopies of the following documents :
“ 1. The Monthly Attendance Summary maintained by the Appellant Company for the Month of July 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
2. The Monthly Attendance Summary maintained by the Appellant Company for the Month of August 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
3. The Monthly Attendance Summary maintained by the Appellant Company for the Month of September 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
4. The Monthly Attendance Summary maintained by the Appellant Company for the Month of October 2009, in respect of the Security Services given to the Respondent at KRS Brindhavan Garden.
5. The Monthly Attendance Summary maintained by the Appellant Company for the Month of September 2009, in respect of the Security Services given to the Respondent at Reliance Petrol Bunk at Hassan.
6. The Monthly Attendance Summary maintained by the Appellant Company for the Month of October 2009, in respect of the Security Services given to the Respondent at Reliance Petrol Bunk at Hassan.
7. Salary disbursed to the employees of the Appellant Company for the Month of July 2009, at KRS.Sagara.
8. Salary disbursed to the employees of the Appellant Company for the Month of August, 2009, at KRS.Sagara and Reliance Petrol Bunk, at Hassan.
9. Salary disbursed to the employees of the Appellant Company for the Month of September, 2009, at KRS.Sagara and Reliance Petrol Bunk, at Hassan.
10. Salary disbursed to the employees of the Appellant Company for the Month of October, 2009, at KRS.Sagara and Reliance Petrol Bunk, at Hassan.”
17. In the affidavits accompanying both the applications, the appellant/applicant has taken a common contention that the defendant/respondent in its written statement has not disputed the services rendered by the appellant-Company, as such, the appellant-Company has not produced the documents such as Attendance sheet etc., to show that it had provided services to the respondent both at KRS Brindavan Garden, Mysuru and Reliance Petrol Bunk at Hassan. The applicant has also stated that it thought that the respondent would adduce evidence and during the cross-examination, regarding the services provided by the appellant/plaintiff-Company, it would elicit from the mouth of the defendant. Since the defendant has not only failed to adduce evidence on its behalf, but, also failed to produce any document, the plaintiff was constrained to file these applications.
18. The applicant in his affidavit filed in IA.No.2/2019 has further stated that plaintiff was under bona fide impression that based on Exs.P-2, P-4 and P-7, the trial Court would decree the suit. Since the trial Court dismissed the suit on the ground that the plaintiff- Company has not produced the documents to prove its case, it was constrained to produce those documents now through the applications. It is further stated in the same affidavit that the records maintained by the plaintiff-Company in their office were not maintained in a systematic manner and more so, since one year now, the plaintiff-Company’s office has been shifted to other premises.
19. The respondent has objected to both these applications in their statement of objections, wherein it is stated that the averment that the documents are with the custody of the respondent is not correct. In fact, the documents are in possession of the plaintiff- Company. The respondent also referred to a portion of the impugned judgment and stated that the trial Court in the impugned judgment has made an observation that PW-1 in his evidence has stated that there is a written agreement dated 1.7.2009 regarding providing security services as sought by the defendant and that the said document is in possession of the plaintiff- Company. However, the said document was not produced by the plaintiff in the Court. Therefore, the plaintiff has not produced any suitable evidence to support its case.
The respondent also stated that the contention of the applicant in interlocutory applications that the possession of some of the documents, more particularly, the attendance sheets are with the defendant, is totally false. Stating that no convincing reasons have been given by the applicant for allowing the applications, the respondent has sought for rejection of both the applications.
20. The first six documents which are sought to be directed to be produced by the respondent/defendant under I.A.No.1/2019 filed by appellant Company, are also the documents at Sl.Nos.1 to 6 under I.A.No.2/2019 which the applicant Company intends to produce under Order XLI Rule 27(1)(aa) read with Section 151 of CPC. Though the documents are described as the Monthly Attendance Summary maintained by the appellant Company for the months from July 2009 to October 2009, with respect to attendance of the security personnel at K.R.S, Brindavan Garden, Mysore and Petrol Bunk at Hassan, the document No.7 sought to be produced under I.A.No.1/2019 is the Security Agreement dated 02-07-2009 said to have been entered into between the appellant Company and the respondent herein.
21. At the outset, the direction for production of these documents by the respondent arises, provided, the plaintiff/appellant establishes that, the documents are in the possession and custody of the respondent/defendant upon whom the direction is sought. The respondent in its Statement of Objections specifically stated that they are not in possession of any of these documents.
22. The question of production of the Monthly Attendance Summary which are documents No.1 to 6 under I.A.No.1/2019 arises, provided, there exists a Security Agreement dated 02-07-2009 imposing an obligation on the part of the respondent/defendant to maintain such an Attendance Summary with them. According to the defendant/respondent, no such Security Agreement dated 02-07-2009 was entered into between them. No doubt, the plaintiff Company, both in its plaint as well in the examination-in-chief of PW-1 has referred to Security Agreement dated 02-07-2009, but has stated that, the plaintiff Company sent a Security Agreement to the defendant to sign the same. But the same has not been returned by the defendant. The same in verbatim is the evidence of PW-1 in his examination- in-chief also. Therefore, the very pleading of the plaintiff as well the evidence of PW-1 in his examination-in-chief no where goes to specifically assert that, there existed a concluded contract between the parties regarding the supply of the security services to the defendant by the plaintiff Company. Nowhere the plaintiff has whispered that a concluded contract on 02-07-2009 was entered into between them. A mere statement, even though the same is taken to be true that, on 02-07-2009, the plaintiff Company had sent a Security Agreement to the defendant for its signature, cannot, at any stretch of imagination, be inferred that, the said agreement was executed by the defendant agreeing to the alleged terms of the contract. Even according to the plaintiff, the said agreement was sent to the defendant for its signature. But there is neither any pleading nor any evidence to the effect that the terms of the agreement were agreed to between the parties and that the agreement dated 02-07-2009 was signed by the defendant. However, according to the plaintiff, the defendant after signing the agreement had retained the same with it. Thus, the pleading is very vague and not clear so far as the execution of the alleged agreement dated 02-07-2009 is concerned. In that background, merely because PW-1 in his cross- examination has stated that the said agreement is with the defendant, by that itself, what is not there in its pleading regarding the execution of the agreement, cannot be inferred. Therefore, both the pleading as well the evidence of PW-1 falls short to prove that, there existed a concluded contract between the parties dated 02-07-2009. In this background, the contention of the defendant throughout that, there existed no agreement alleged to have been entered into between the parties on 02- 07-2009 gains importance. As such, when even according to the plaintiff it is not their case that, an agreement dated 02-07-2009 was executed by the defendant, the question of directing the defendant to produce the said document, which, according to the defendant, is not with them, would not arise.
23. However, the appellant under I.A.No.2/2019 has produced six photocopies said to be of Monthly Attendance Summary maintained by it. Had really those documents were available with it soon after the completion of a particular month, then, nothing had prevented them to produce the same at the earliest point of time.
24. Furthermore, the entire pleading and evidence of the plaintiff are totally silent about the responsibility of maintaining any attendance and how the same has to be maintained and by whom. Further, even according to the description of the documents, as shown in the list of documents under the application, those Attendance Summary list shown to have been maintained by the appellant Company (plaintiff) but not with the defendant/respondent, there is nothing in the form of pleading or evidence to believe the oral argument of the learned counsel for the appellant/applicant that, the attendance should be prepared and maintained by the appellant Company and for confirmation, the defendant has collected. In the absence of any pleading on the said aspect, the Court cannot assume certain things merely because the same is canvassed in the oral argument at the time of hearing. Therefore, when there is no basic material to show that there was requirement or procedure of maintaining some attendance by the party and accordingly, such an attendance was maintained and further the said alleged attendance summary was given to the custody of the respondent/defendant, the question of giving any direction to the respondent/defendant to produce them or allowing the appellant to produce the copies of the same, at this stage, is neither warranted nor deserves to do so. Therefore, the question of giving a direction to the respondent to produce the documents shown in the list given under I.A.No.1/2019, would not arise.
25. Under I.A.No.2/2019, the appellant is intending to produce ten documents as additional evidence. As already observed above, the first six among ten documents are the Monthly Attendance Summary said to have been maintained by the appellant concerned. The remaining four documents are the salary particulars alleged to have been disbursed to the employees of the appellant Company for the months from July 2009 to October 2009.
26. It is not the case of the appellant that those documents were not in their existence as on the date of the institution of the suit or that despite their due diligence, they could not get those documents, as such, it is only at this stage, they could produce them. On the other hand, the applicant Company itself in the affidavit accompanying the application has stated that it was under bona fide impression that based on Exs.P-2, P-4 and P-7, the Trial Court would have decreed the suit in their favour. Since the Trial Court has now dismissed the suit on the ground that the appellant Company has not produced any documents to indicate that, it has provided security services to the respondent, the appellant has now come up with the present application seeking permission to produce those documents. The said reason shown for seeking permission to produce those documents itself goes to show that, all those documents now intended to be produced, were very much available with the appellant/plaintiff Company and that the plaintiff Company was also aware of the availability of those documents, however, the plaintiff Company itself formed certain impression and presumed that the documents produced by it would be sufficient to get the suit decreed in its favour. The plaintiff pre-judged the evidentiary value and reliability of the documents produced by it in the Court below and decided that those documents are sufficient. Thus, it has invited a risk upon itself knowing fully well that, it need not produce the other relevant documents though they were within its custody. Therefore, when the plaintiff Company which is in possession of certain documents with it itself decides not to produce them at the relevant point of time in the Court below, cannot be allowed or permitted to produce them before this Court, at a later stage, for no valid reasons.
27. In the instant case, the reason given by the appellant, by a prima facie look shows that, though the plaintiff/appellant was in custody of those documents with it, but withheld them from producing till the present appeal was heard on its main arguments from the appellant’s side. It is only after the argument from the appellant’s side on the main appeal was addressed, the appellant has come up with the present application, that too, with the above reason that, it had an impression that the documents already produced before the Court below would serve its purpose. This shows lack of diligence on the part of the appellant Company. An applicant may be permitted to produce the document even at an appellate stage provided, he could able to convince the Court that, despite his due diligence, he could not lay his hands on those documents. Whereas in the case on hand, the appellant knew that the documents were in its custody and the appellant is a Company. Despite the same, it by itself decided not to produce the same. As such, it has to be called as “not being diligent” at the time of institution of the suit. As such, I.A.No.2/2019 also does not deserve to be allowed.
28. It is the plaintiff who is alleging that it had an agreement with the defendant dated 02-07-2009 under which, it had supplied the security personnel/manpower to the defendant, for consideration. As already observed, the defendant has denied all the plaint averments. However, the defendant at the end of its Written Statement has stated that, it has already cleared the security bill of `5,500/- for each security guard, hence, there is no pending amount of security bill. A suggestion to the same effect was also made from the defendant’s side to PW-1 in his cross- examination. This pleading of the defendant in the Written Statement and the suggestion made to PW-1 in his cross-examination, though at the most, goes to show that, the defendant has availed some security services from the plaintiff Company, but, that itself is not sufficient to hold that the plaintiff Company is entitled for the suit claim. The same reasoning applies even with respect to Ex.P-3 and Ex.P-4 also.
29. Ex.P-3 is a photocopy of a letter dated 05-08-2009 said to have been written by the defendant to the plaintiff stating that the defendant needs two Security Guards to their Company from 6th onwards, day and night. Ex.P-4 is shown to be another letter by the defendant to the plaintiff and dated 01-11-2009 wherein the defendant is shown to have written that, due to the recession in its business, they are releasing MAC Security Guards. Learned counsel for the appellant banking heavily upon these two documents, stated that, even in the absence of any written agreement, Ex.P-3 and P-4 would prove the liability of defendant towards the plaintiff.
30. A reading of Ex.P-3 and Ex.P-4, no where leads to an inference of existence of a full-fledged and completed contract between the parties as per the terms alleged by the plaintiff in its plaint as well in its evidence as PW-1. A reading of Ex.P-3, at the most, only goes to show that, the defendant had expressed its requirement of two security guards with the plaintiff Company. There is no document shown that the said request was accepted by the plaintiff and accordingly, has supplied the man power.
31. A reading of Ex.P-4 similarly would go to show that due to the recession in its business, the defendant had released MAC Security Guards. A conjoint reading of Ex.P-3 and Ex.P-4, at the maximum, would go to show that, the defendant was in requirement of only two Security Guards. If at all the defendant had released any Security Guards, it can only be two security guards, because Ex.P-3 speaks about the requirement of only two. However, neither Ex.P-3 nor Ex.P-4 anywhere mentions as to from when those security guards have to be supplied and upon what terms. Neither of these two documents specifically mention anything about the consideration that has to be paid by the defendant to the plaintiff.
Surprisingly, even in its plaint also, the plaintiff Company has not stated as to as per the request at Ex.P-3, any Security Guards were lent or sent to the defendant. It is for the reason that, according to the plaintiff, the lending of services of security guard was from July 2009 and more precisely from 02-07-2009, whereas, the letter at Ex.P-3 is dated 05-08-2009, which is not less than a month after the alleged supply of man power services by the plaintiff. The said letter at Ex.P-3, no where gives an impression that the said expression of requirement of two Security Guards was in addition to the Security Guards, if any, already supplied by the plaintiff. Therefore, when the pleading as well the evidence with respect to Ex.P-3 and supply of the Security Guards in response to Ex.P-3, are not available, merely reading of Ex.P-3 and Ex.P-4 which documents are not self-explanatory in full by themselves, the Court cannot come to a conclusion that, there was supply of Security Guards by the plaintiff to the defendant totaling to an extent the plaintiff is claiming an amount as due in the form of suit claim. At the maximum, a conjoint reading of paragraph 13 of the Written Statement and the suggestion made to PW-1 in his cross-examination would go to show that, the defendant has utilised the security services from the plaintiff. However, in the absence of any details as to how many security personnel were deputed at the request of the defendant, from what period to what period and at what rate, the claim of the plaintiff for the suit claim of `1,18,821/- cannot be taken as established.
32. Even though the plaintiff in its plaint has stated that the security service charges were fixed at `7,800/- per month for the Security Guards and a sum of `10,500/- for the Security Supervisors, but no where the plaint gives any details as to, at that particular rate, how many security personnel were deputed to the services of the defendant during the claim period which is from 1stJuly 2009 to 31st October 2009. Therefore, in the absence of any such necessary detail, merely because the defendant has stated that it has cleared the dues, by that itself, it cannot be inferred that the defendant has not cleared its dues in full.
33. On this aspect, learned counsel for the appellant has relied upon Ex.P-13 and Ex.P-14 and stated that the Statements of Account produced at Exs.P-13 and P-14 would go to show that the defendant is due for the suit claim. Admittedly, neither Ex.P-13 nor Ex.P-14 is the actual Books of Accounts or the Registers maintained by the plaintiff. Those two documents are in single sheet of paper in the form of a computer printout. Those two documents bear a title as “Ledger Account” with the name of the defendant Company. However, there is no evidence of any sort to show that those accounts were maintained by the plaintiff in its ordinary course of business in a routine manner. As such, merely because two sheets of paper are produced as Ledger Account extracts, by that itself, it cannot be inferred that they are the true and original Ledger Books or the Ledger Registers maintained by the plaintiff.
34. Assuming for a moment that Exs.P-13 and P-14 are the Ledger Account extracts of the defendant establishment, still, a reading of the recitals shown in those two documents only goes to show certain debit entries with description as “security services” and a single credit entry as a credit amount received by “Canara Bank, Mysore” under a particular receipt number. By the said mere description of the transaction, it cannot be inferred that the same was towards supply of a specified number of security personnel by plaintiff to the defendant. More over, the amount shown in the debit column for each of the month is also at variance. Therefore, in addition to Exs.P-13 and P-14, at least some form of pleading or evidence from the presentor of the said document was very much required to explain what those documents depict or explain. In the absence of any such thing, since those two documents are not self-explanatory, merely because it shows some figures as outstanding liability, the same cannot be accepted.
35. The correctness of the said Ledger extracts also cannot be accepted for one more reason that, even after considering Ex.P-3, at the maximum, it goes to show that the defendant was in requirement of the services of two Security Guards from the month of August 2009. Even according to the plaintiff, the security charges for each of the Security Guard was only a sum of `7,800/- per month. If that were to be the case, for the rest of the months, i.e. August, September and October of the year 2009, for two Security Guards, at the rate of `7,800/- per month, by no stretch of imagination, the payment due would come to the suit claim of the principal amount of `83,983/-+`15,442/-= `99,425/-. On this logical reasoning also, the plaintiff is not able to establish its case.
36. Even though the Trial Court has assigned a different reasoning for dismissing the suit of the plaintiff Company, however, the said conclusion for dismissal of the suit of the plaintiff cannot be found fault with. As such, I do not find any reason to interfere in the judgment and decree under appeal.
Accordingly, I proceed to pass the following:-
O R D E R [i] I.A.No.1/2019 and I.A.No.2/2019 are dismissed;
[ii] The appeal is dismissed;
[iii] The judgment and decree dated 21-09-2013 passed in O.S.No.5432/2011 by the learned XX Additional City Civil & Sessions Judge (CCH.32), Bangalore City, is hereby confirmed;
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/- JUDGE bk/BMV*