N.G. Jayaram M/S Sri Balakrishna Book Depot v Baselies Paulose II Catholicose College Piravom

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** **AS.No. 571 of 2002** **AGAINST THE JUDGMENT IN OS 56/1999 of ADDITIONAL SUB COURT,NORTH PARAVUR DATED 05-04-2002** ## **APPELLANT/PLAINTIFF:** **N.G.JAYARAM M/S.SRI.BALAKRISHNA BOOK DEPOT, KUZHUPPILLY VILLAGE, AYYAMPILLY P.O., ERNAKULAM DISTRICT, KERALA, KOCHI TALUK.** **BY ADV. SRI.DINESH R.SHENOY** ## **RESPONDENT/DEFENDANT:** **BASELIES PAULOSE II CATHOLICOSE COLLEGE PIRAVOM, REP.BY THE PRINCIPAL, B.P.C.C.COLLEGE, PIRAVOM, PIN-686 664, KERALA.** **BY ADVS. SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.ANIL KURIAN THOMAS SRI.B.ASHOK SHENOY SRI.H.B.SHENOY** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S. 571/2002 2 ## **JUDGMENT** The plaintiff before the Additional Sub Court, Paravur, has preferred this appeal feeling aggrieved by the dismissal of the suit filed for realization of money. The parties are referred to as the plaintiff and the defendant as per their ranking before the court below. 2. The facts relevant for disposal of this appeal are as follows: The plaintiff is conducting a book depot at Kuzhipalli near Paravur. The defendant, a College at Piravam on 04/05/1996 had placed orders to supply certain books. Accordingly, the plaintiff had supplied books worth Rs. 1,50,298/- in the College. Thereafter, he forwarded invoice bill dated 20/05/1996 to the defendant by registered post with acknowledgment. The same was received by the defendant College on 27/06/1996, but failed to honour the bill. Thereafter, the plaintiff made several requests including lawyer notice dated 05/01/1999 but the amount was not paid by the defendant which necessitated the filing of the suit for money. A.S. 571/2002 3 3. The defendant denied the allegations raised by the plaintiff that he had placed orders for purchase of books. It is further contended that the plaintiff had approached the defendant offering books for sale required for the College. But as the College was not in immediate requirement of books no order was placed as alleged by the plaintiff. Certain books were supplied but it was not on the basis of any order from the side of the defendant. Hence, the plaint claim has been denied by the defendant. 4. Before the Court below the plaintiff was examined as PW1 and Exts. A1 to A5 were marked to prove his case. The Principal of the College was examined as DW1 on the side of the defendant. 5. On appreciation of the oral and documentary evidence the Court below dismissed the suit by the judgment and decree under challenge. 6. Heard learned counsel for the appellant and the learned counsel for the respondent. 7. The defendant is 'Baselious Paulose II Catholicose College, Piravom, represented by the Principal'. As PW1 the plaintiff had deposed before the Court that he is running a book shop and the A.S. 571/2002 4 defendant who is the Principal of the College had placed Ext. A1 order on 04/05/1996 for supply of certain books for the college. Accepting the supply order he had supplied the books in the College on 07/05/1996. Ext. A1 is the order relied on by the plaintiff to prove that the request to supply the books in the College was issued to him by the Principal of the College. The defendant had denied the issuance of the order dated 04/05/1996. It is to be noted that though Ext. A1 is dated 04/05/1996 the signature of the Principal is seen affixed with date, on 07/05/1996. DW1 who is the Principal of the College had denied of having placed an order to supply books and had vehemently denied of having affixed his signature in Ext. A1 order. On the other hand the plaintiff has a definite case that on the basis of Ext. A1 order he had supplied the books on 07/05/1996. According to him all the Department heads had verified the books supplied by him and affixed their signatures/initials. The defendant though denied Ext. A1 order dated 04/05/1996, has not denied the signatures of the respective Department heads in the document after verifying the order of books supplied in various departments. Before going A.S. 571/2002 5 into the details it is to be noted that Ext. A2 is the invoice bill issued by the plaintiff to the defendant dated 20/05/1996. Ext. A3 the acknowledgment card would reveal the receipt of the invoice bill on 27/06/1996 by the College. In Ext. A1 as well in Ext. A3 the seal of the College was seen affixed. Ext. A4 is the lawyer notice dated 05/01/1999 and Ext. A5 is the acknowledgment card dated 07/01/1999 evidencing receipt of the lawyer notice. It is pertinent to note that though the lawyer notice dated 05/01/1999 was received by the College on 07/01/1999, reply was not sent and payment was also not effected by the defendant. In fact, the main question to be looked into is whether the plaintiff had supplied books on the basis of the order placed by the plaintiff. When the plaintiff was examined as PW1 in Chief Examination, he had stated that the order for supply of books was dated 04/05/1996, but Ext. A1 would show that the signature of the defendant was seen affixed on 07/05/1996. The signature was not denied by the defendant. Though there was slight difference in the date PW1 had categorically deposed before the Court that the books were supplied to the defendant on the basis of Ext. A1 on 07/05/1996. It A.S. 571/2002 6 is interesting to note that in the written statement filed by the defendant in para No. 4 it was contended that the college never placed any order requesting supply books either in the office of the plaintiff or with the plaintiff in any manner and no books were supplied to the defendant as per the order, but in para No. 7 it was stated that books were supplied by the plaintiff in the College but as the College did not require the books a request was made to the plaintiff to take back those books from the College. So it could be seen that the defendant had no consistent case and it could be gathered from the records that the books were physically supplied by the plaintiff before the College pursuant to Ext.A1. It is also admitted by the defendant that even now the books are in the possession of the defendant though it is kept separately as unused. The plaintiff has also no case that any of the books were taken back by him during the period of more than three years till the date of issuance of the lawyer notice or thereafter. Even though the defendant contended that the plaintiff was asked to take back the books as the College did not require the books supplied by him, no scrap of paper was seen produced by the A.S. 571/2002 7 defendant to show that there was such a demand/request to the plaintiff and there was no evidence to show that the defendant had made any arrangements to return the books which had been supplied by the plaintiff as evident by the admission of the defendant before the Court. 8. Such being the case the question to be looked into is whether the plaintiff is entitled to realize the value of the books supplied by him to the College as requested by the College. As mentioned earlier the Principal of the College represents the College and the books were supplied by the plaintiff to the College and not to the defendant personally. A mere look on Ext. A1 would show that the Department Heads of various departments namely the departments of Electronics, Computer, Management, Mathematics, and the Department of English, had verified the books supplied to the respective departments and endorsed the same in ExtA1. Therefore, Ext.A1 itself would show that all the department heads have verified the books supplied by the plaintiff. Since the department heads have verified it thoroughly it could only be inferred that such an exercise was done only on A.S. 571/2002 8 the direction of the Principal of the College. If an order was not placed by the Principal definitely such an instruction will not be given to the department heads to verify the books supplied by the plaintiff to ascertain whether the requirement was satisfied by the plaintiff. If such a direction was not there there was no possibility of having such a verification by the department heads. That is also a strong ground to conclude that the order was placed by the College to get the required books. It has also come out in evidence that the College had started functioning only in the month of December 1995. So definitely books might have been required for each department for the proper functioning of the College and the college was also waiting for affiliation from the University. It is the common knowledge that affiliation will be obtained by a College only if the required infrastructure are available in the college. So there is every possibility of the college placing order to get books required for the functioning of the college. It has also come out in evidence that pursuant to Ext.A1, PW1 had met all the department heads to ascertain the books required for the college and thereafter the books were supplied by him on 07/05/1996. A.S. 571/2002 9 According to PW1 after a month he had gone to the college with the request for the money directly as it was not paid but he had not received the same and thereafter also he went the college with the very same demand. Of course, there is a difference in the date as Ext.A1 is dated 04/05/1996 and the signature of the defendant appears to have been affixed on 07/05/1996 but, according to the plaintiff he had supplied the books on 07/05/1996. It is quite difficult to believe the story of the defendant that a book seller had simply supplied the books in the college without an order from the Principal. It is not possible to supply such books to the college by an ordinary seller without the direction of the Principal. The seal of the college as well the personal seal of the Principal were seen affixed in Ext.A1 order. How the plaintiff happened to get a document with the seal of the college and the seal of the Principal without the consent or knowledge of the principal, was not explained by the defendant. The defendant has no case that the plaintiff had forged such a document or some how managed to obtain the seal of the college and seal with his designation behind his back. The seal of the A.S. 571/2002 10 college and the seal of the Principal are definitely very important identity which normally would be kept in safe custody. A layman will not have access to such a seal to be affixed in a document like this. So the argument advanced by the learned counsel for the defendant that the difference in the signature seen affixed in Ext.A1 with that of the admitted signatures of the Principal in his deposition and the written statement filed by him would disprove the case of the plaintiff, is without any merits. The argument that the burden is upon the plaintiff to prove that the signature was affixed by the defendant cannot be accepted in the facts and circumstances of this case for the main reason that the seal of the college and the seal of the Principal as well the signatures/initials of the department heads of various departments were seen affixed in Ext.A1 with dates. The defendant has no case that the department heads have not affixed their signatures in the document and the plaintiff has some how managed to get the signatures or initials of the respective department heads. As mentioned earlier it is not possible to infer that they have simply affixed their signatures or initials in Ext.A1 order. But it could A.S. 571/2002 11 correctly be inferred that they have verified the books supplied by the plaintiff with Ext.A1 document and thereafter affixed the signatures even by making endorsement that the books listed in the document had been received by them. Hence, it could correctly be inferred that an order might have been placed by the defendant to the plaintiff on 04/05/1996 and when the books were supplied on 07/05/1996 the parties concerned signed it after thorough verification. So Ext.A1 can only be considered as a genuine document and at any cost it cannot be inferred that it is a forged document or a manipulated one by the plaintiff so as to extract the money from the college. So also the failure to issue a reply notice to the lawyer notice sent by the plaintiff is also another circumstance to strength the case of the plaintiff put forth. To buttress the case of the defendant, reliance is placed on the decision in **Bank of India v. M/s. Allibhoy Mohammed and Others (AIR 2008 Bombay 81).** In this decision the Bombay High Court has observed that the mode of proving contents of a document has to be dealt with under Sections 61 and 62 of the A.S. 571/2002 12 Evidence Act. A writing by itself is evidence of nothing and therefore is not, unless accompanied by proof of some sort, admissible as evidence. It is further observed in paragraphs 34 and 35 as follows : ''34. Section 67 refers to documents other than documents required by law to be attested. It says that the signature of the person alleged to have signed a document (that is execution) must be proved by producing evidence to the effect that the signature purporting obtained to be that of the executant is in fact in his handwriting as laid down by Apex Court in **Venkatachala v. Thimmajamma (AIR 1959 SC 443)** and the other matter in the document (that is its body) must also be proved by the first( that is proof of handwriting) and the genuineness of the document is proved by the 2[nd] (that is proof of handwriting) unless they are admitted by the other side. The term execution is not defined by any statute it means completion that is the last act or acts which complete the document and in English law this is knows as signing, sealing and delivering. The ordinary meaning of executing a document is signing it as a consenting party thereto. 35. The execution of authorship of a document being a question of fact it can be proved like any other fact by direct or circumstantial evidence. The internal evidence provided by a document may also be of some kind in most cases the nature of evidence will depend on the nature of the documents and A.S. 571/2002 13 the circumstances of each case. Section 67 does not require any particular mode of proof that any writing or signature is in the hand of the particular person. If it is a letter it must be proved as to who was the writer and who signed it. If it is an entry in a diary or note book it authorship must be proved that is it is the diary or note book of the person whose statement is alleged to contain in a suit for money on account of sale of books the ledgers the chalans and the corresponding bills have to proved to be in the handwriting of the person who has written them.'' ## In paragraph 36 it was further observed that ''36. The definition of ''proved'' given under Section 3 must be read along with Section 67 which requires that there must be specified evidence that the signature purporting to be that of the executant is in the handwriting of the executant .Until this is proved Court cannot proceed to consider whether execution is proved. In other words Section 67 makes proof of execution of a document something more difficult than proof of matter other than execution of a document.,....'' 9. The learned Single Judge of this Court in **Poonath Devaki** **and Others v. Vayalveettil Balakrishnan and Others (2011 KHC** **563)** has observed in para 8 that when execution of a document is admitted and it is challenged as one void or voidable on vitiating circumstance burden of proof is on the person who seeks to avoid the document. A.S. 571/2002 14 10. Here when the facts of the case is evaluated in the line of the evidence adduced by the parties it could be seen that the plaintiff could prove his case that he had supplied the books to the defendant college only on the basis of the order placed by the Principal on behalf of the college by Ext.A1. Though the defendant attempted to prove that he had not placed any order, when the circumstances and facts involved in this case narrated above is meticulously evaluated and scanned it could be seen that the denial of his signature in Ext.A1 was only an unsuccessful attempt on his side so as to avoid the liability of paying the amount. If the books were not supplied by the plaintiff as per Ext.A1 immediately on receipt of the invoice he would have contacted the plaintiff and narrated the facts and requested him to take back the books. But there was no such attempt on his side. So also even after the receipt of Ext.A4 notice demanding money by the plaintiff the defendant choose to remain silent and did not reply to the plaintiff. The endorsement by the respective heads of the department also remain as a strong piece of evidence against the defendant's case. A.S. 571/2002 15 11. When the entire evidence available on record is meticulously evaluated it could be seen that the Court below has not appreciated the evidence correctly and hence the judgment and decree are liable to be interfered with. The finding of the Court below that there were dissimilarities in the signature contained in the document and a mere look will reveal the same, in my opinion appears to be absolutely wrong. The fact that the crucial document contains the seal of the college as well the designation seal of the Principal will also support the case of the plaintiff that the order was placed by the Principal to enable the college to have the infrastructure required so as to get affiliation to the newly started college. When all the books were supplied by him and verified and convinced by the department heads there is no justification on the side of the defendant in denying payment to the bookseller who used to supply books on the basis of orders placed before them and collecting value of the books after supplying the books to the customers. It is a common knowledge that when bulk of books are ordered by an institution like college and schools , books will be supplied by the booksellers as per the A.S. 571/2002 16 order and only after verification and satisfaction of the same by the responsible persons, a demand for money will be placed by the booksellers. That is what exactly happened in this case also. So at any cost it is not justifiable on the side of the defendant to deny the value of the books by contending that the books are safe in the rack of the college and at any moment the plaintiff can take back the same. If such an offer was genuine definitely the college authorities would have placed such a suggestion before the plaintiff then and there on receipt of the invoice or at least the lawyer notice. In short, the plaintiff is entitled to realize the value of the books, but taking into consideration the fact that the books were supplied to a newly started college, I think that the interest claimed at the rate of 18% per annum, is no doubt exorbitant and excessive. Hence the plaintiff is entitled to realize interest only at the rate of 6%. Therefore, I find that the judgment and decree under challenge are liable to be set aside and I do so. In the result, the appeal is allowed. The defendant is directed to pay an amount of Rs. 1,50,298/- with interest at the rate of 6% per annum from the date of suit till realization within a period of A.S. 571/2002 17 two months after receipt of a copy of this judgment and decree. Parties shall bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** SVP //TRUE COPY// Sd/PA TO JUDGE