SANGAT PRINTERS PVT. LTD Vs. WIMPY INTERNATIONLA LTD

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 26.3.2003 dismissing the suit for recovery of Rs.3,49,492/- filed by the appellant/plaintiff. The amount prayed to be decreed was with respect to goods being printed boxes supplied having the logo of the respondent/defendant.

(2.) BEFORE proceeding further, I may note that the Trial Court had framed a total of six issues and of which issue nos. 2 and 3 pertained to the entitlement of the appellant/plaintiff to the suit amount and as to whether there was a full and final settlement by the respondent/defendant paying Rs.94,410/-. While deciding both these issue nos. 2 and 3, the Trial Court held that in fact goods were supplied, balance amount was due and payable and there was no full and final settlement as alleged by the respondent/defendant. The Trial Court while giving the necessary findings and conclusions with respect to issue nos. 2 and 3 has held that amounts which are due to the appellant/plaintiff are proved by virtue of the fact that the respondent/defendant in its written statement admitted to have received goods of the amount of Rs.13,58,893/- and also payment thereof of Rs.9,81,579/- leaving thus the balance amount due and payable. The Trial Court has also referred to the bills of supply which have been exhibited as Ex.PW1/D-1 to D-48 as also the fact that the respondent/defendant sent no reply to the legal notice in which the amount was claimed entitling drawing of an adverse inference. The Trial Court has also held that there was no full and final settlement allegedly by making payment of Rs.94,410/- by the respondent/defendant inasmuch as except a bald statement, no evidence/proof was filed on behalf of the respondent/defendant. The suit however has only been dismissed because authority to file the suit was held to be not proved while dealing with issue no.1.

(3.) IN my opinion, the Trial Court has clearly erred in dismissing the suit on the ground that the suit has not been validly instituted. Firstly, the finding is wrong, because the Board of Directors' resolution was proved and exhibited as Ex.PW1/A. Before the commencement of cross-examination, the respondent/defendant did not object to the exhibition of this document, and therefore, in view of the decision of the Supreme Court in the case of R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple 2003 (8) SCC 752, the respondent/defendant is estopped from objecting to the proof of the document. The Supreme Court in the case of R.V.E.Venkatachala Gounder(supra) has held that if objection is taken by the objecting party at the relevant point of time, then, the litigant which wrongly exhibits/proves the documents, can thereafter take corrective action to ensure proper mode and manner of proof. Therefore once objection is not taken at the appropriate point of time, subsequently, no benefit can be derived of the same by the party subsequently objecting. In the present case, evidence was filed by way of affidavit and therefore since objection to the exhibiting/proof was not taken before commencement of the cross-examination, the objection is deemed to have been waived inasmuch as if cross-examination would not have begun and objection would have been taken to exhibiting/proof of document, then the appellant would have preferred to lead other evidences to ensure proof of the resolution, Ex.PW1/A. I therefore hold that the resolution Ex.PW1/A duly showed the entitlement of Sh. Parvinder Singh to file the suit. Secondly, the objection raised by the respondent/defendant is fully answered against the respondent/defendant as per the celebrated decision of the Supreme Court in the case of United Bank of India vs. Naresh Kumar, 1996(6) SCC 660; AIR 1997 SC 3, in which judgment the Supreme Court has said that the cases filed by the companies should not be dismissed on technical ground with respect to validity of institution, and in fact the Supreme Court went on further to hold that as long as the suit is contested to the hilt, it ought to be held that the suit was validly instituted and filed. I therefore hold that the Trial Court erred in dismissing the suit on the technical ground by returning the finding on issue no.1 that the suit was not validly instituted and filed.