NAHAR SILK MILLS LIMITED Vs. NAVIN KUMAR JAIN

JUDGEMENT

(1.) Aggrieved by the order dated 28-4-1995, passed by Sh. S.K. Aggarwal, Civil Judge, dismissing the petitioner's application under Order XVIII Rule 17 A read with Section 151 CPC,for being permitted to produce on record and prove the letter dated 12-1-1993, allegedly sent by the petitioners and served on the respondent, the petitioners have filed this civil revison petition.

(2.) The facts in brief giving rise to the present petition may be noticed:- On 12-8-1994, respondent instituted a suit for recovery of Rs. 48,995.00 against the petitioners, comprising principal sum of deposit of Rs.35,000.00 together with interest accrued @ 21% P.A. A decree of permanent injunction was als sought against the petitioners from alienating for parting with possession industrial shed on the plot allotted too petitioner No.2. In the written statement filed, the factum of deposit and rate of interest is admitted. It is claimed that pursuant to the decision to shift works from Delhi to Alwar, petitioner had proposed/offered to respondent and other depositors to either give notice for return of the deposit or extend the deposit for a period of atleas tfive years w.e.f. 1-4-1995, at reduced rate of interest of 15%. The respondent had accepted the latter after number of meetings discussions and deliberations. Accordingly, interest instalment bacame due only on 31-3-1994 and there was no default. It was further claimed that the suit had been filed at the behest of one S.P. Sharma, who was petitioner's Chartered Accountant and had organized the deposits. He had now turned Inimical to petitioners. On 12-12-1994, the Court framed the following issues:- "(i) Whether the plaintiff novated the contract regarding deposit of money with defendants as alleged in the written statement? OPD (ii)Relief."

(3.) The petitioners during the evidence of the defendants moved an application under Order XVIII Rule 17-A CPC for being permitted to produce a letter dated 12-1-1993, claimed to be written by the petitioner to the respondent and served upon them. It is the petitioner's case that this letter was not available to the petitioner, when the written statement was filed. It was only on the scrutiny of the books of accounts that had been made available by the said Sh. S.P. Sharma pursuant to the order passed in suit No. 287/94, that the said letter which was lying mixed up in the books of accounts/record, was discovered in end March, 1995. It is stated that the petitioners gained knowledge about the existence and contents of the said letter for the first time in the last week of March, 1995. It is urged that the said letter is an important and material piece of evidence and has direct bearing on the issue framed by the Court. Despite due diligence and attempts, the said piece of evidence could not be produced by the petitioner as it was lying in the exclusive custody of the said Sh. S.P. Sharma. The letter, it is stated to the best knowledge of the petitioner has been typed in the office of the said Sh. S.P. Sharma and had remained with him. No reply was filed to this application by respondent. The alleged letter dated 12.1.1993 is sent on behalf of M/s. Avinash Chander Anil Kumar Jain and signed by Shri Avinash Chander Jain as director. It gives the depositors option either to withdraw the deposit by giving a notice or retention of the deposit for five years at reduced rates. It is further stated that in case no intimation is received it would be presumed that the second option had been accepted.