Bombay High Court
O AND M SERVICES COMPANY AND ANR.,versusSURFACE TECH (INDIA) PVT. LTD. REP. BY ITS ATTORNEY DEEPAK SRIVASTAVA
- Disposal
- Disposed of
Holding
The Court held that the plaintiff failed to discharge the burden of proving excess payment and the defendant failed to prove the counter‑claim, so the plaintiff’s claim was rejected and the decree dismissing the counter‑claim was confirmed.
Summary
The plaintiff (Surface Tech) sued the defendant (O&M Services) claiming that the defendant had been over‑paid Rs 16,02,006.25 for ready‑mix concrete supplied under a 12‑month work order, and sought restitution with interest. The defendant counter‑claimed the balance of the contract price, maintenance charges and interest, relying on the work order and alleged idle‑charge provisions. The trial court accepted the plaintiff’s claim and dismissed the counter‑claim; the appeal challenged both findings, focusing on the admissibility of electronic ledger records under Sections 65A‑65B of the Evidence Act and the allocation of the burden of proof under Sections 101‑103. The High Court held that the plaintiff failed to prove the excess payment because the electronic records were not properly certified under Section 65B and no joint record was produced, and the defendant likewise failed to establish entitlement to the counter‑claim. Consequently, the plaintiff’s claim was rejected and the decree dismissing the counter‑claim was affirmed, with the appeal allowed in part. The Court also rejected applications to amend the pleadings and to claim a higher interest rate under the MSME Act.
Issues considered
- The plaintiff’s burden to prove that an excess payment of Rs 16,02,006.25 was made.
- The defendant’s burden to prove entitlement to the balance contract price, maintenance charges and interest.
- Whether the electronic ledger entries admitted as evidence satisfy the requirements of Section 65B of the Evidence Act.
- Whether the decree of the trial court dismissing the counter‑claim warrants interference.
- Whether the defendant, as an MSME, is entitled to interest at the rate prescribed under the MSME Act.
Legislation cited
- Companies Act, 1956
- Indian Evidence Act, 1872 — s. 101, 103, 59, 62, 63, 65, 65A, 65B
- Micro, Small and Medium Enterprises Development Act, 2006 — s. 16
- Negotiable Instruments Act, 1881 — s. 138
Subjects
- excess payment
- electronic evidence
- Section 65B
- burden of proof
- MSME interest
- ready‑mix concrete contract
- counter‑claim
- civil appeal
- contractual obligations
- idle charges
Judgment
2026:BHC-GOA:1701 FA 10.2014
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 10 OF 2014
WITH
MISC. CIVIL APPLICATION NO. 41 OF 2026 (F)
WITH
MISC. CIVIL APPLICATION NO. 651 OF 2015
WITH
MISC. CIVIL APPLICATION NO. 699 OF 2019
WITH
MISC. CIVIL APPLICATION NO. 896 OF 2019
1. M/s O & M Services Company
Sole proprietorship concern of
Mr. Suresh Pathoor Rao,
62 years in age,
Having its office at 201,
Second Floor, Sai Chamber,
Sector 11, C. B. D. Belapur,
Navi Mumbai-400614.
2. Mr. Suresh Pathoor Rao,
Indian National, 62 years of age,
Businessman, resident of Mumbai,
Carrying on business under the name of
M/s O & M Services Company,
Having its office at 201,
Second Floor, Sai Chamber,
Sector 11, C. B. D. Belapur.
Navi Mumbai-400614. … Appellants
Versus
Page 1 of 61
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FA 10.2014
1. M/s Surface Tech (India) Pvt. Ltd.
A company incorporated and
Registered under the
Provisions of Companies Act, 1956,
Having its registered office at,
25, Shreementa Market, A. T. Road,
Guwahati-781001, Assam
And local project office at
BRO camp, INS Hansa Airport Road,
Dabolim, Goa-403801.
Represented by its duly constituted attorney,
Mr. Deepak Srivastava, Indian National,
Major in age, employed,
Resident of Vasco da Gama, Goa. …Respondent
Mr. Shivan Desai with Ms. Riya Amonkar, Advocates for
the Appellants/Applicants.
Mr. Bhargav Khandeparkar, Advocate for Respondent No.
1
CORAM : VALMIKI MENEZES, J.
RESERVED ON : 5TH MARCH, 2026.
PRONOUNCED ON: 17TH AUGUST, 2026.
JUDGMENT:
1. This Appeal impugns the Judgment and Decree dated
31.10.2013 passed by the Civil Judge Senior Division at
Vasco in Special Civil Suit No. 39/2009/B and dismissed
the Counter Claim filed by the Appellants.
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2. The Appellants are the original Defendants and the
Respondents are the Original Plaintiffs in Special Civil Suit
No.39/2009/B; the parties shall hereinafter be referred to by
their original nomenclature “Plaintiffs and Defendants”. It
was the case of the Plaintiffs in the plaint that it was a
Company which executed civil contracts for the Military
Engineering Service and other agencies of the Indian
Defence Force, and for which it needed supply of Ready
Mix Concrete (R.M.C). To that end, it accepted the offer of
the Defendants vide their letter bearing No.
O&M/STPL/Mgmt/001 dated 10.09.2007 and subsequently
issued work order dated 12.09.2007 under which the
Defendants were to set up a mobile batching (R.M.C) plant
at the work site of the Plaintiffs, at Dabolim, and for
production and supply of R.M.C; that the contract would be
irrevocable and continuous for a period of 12 months for
production and supply of 45000 cubic metres of concrete,
extendable on same conditions as per requirement; the
Defendants were to install their own infrastructure, have its
own staff, workmen and technicians and supply concrete as
per requirement and minimum requirement being 4000
cubic metres per month; the price was fixed at Rs.225 per
cubic metre.
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According to the Plaintiff, it was to pay Rs.5 lakhs as
advance to install the batching plant, agreed to be recovered
from the 4th Running Account Bill (R.A. Bill) in six months;
the Defendants were to provide certified quality concrete
and submit R.A. Bills. It was also agreed between the parties
that payment would be made only on submissions of R.A.
Bills to the Plaintiffs, along with Original Challans certified
by the Site in Charge.
3. According to the Plaintiffs, the Defendants failed to
provide R.A. Bills despite regular reminders, despite which
the Plaintiffs released payments on demand, only with a
view to keep the work at site running. According to the
Plaintiffs some amounts were released to the Defendants
without R.A. Bills at their request, as they claim they needed
funds to repair the plant. The Work Order expired on
12.09.2008. The Parties mutually continued operating the
contract; defendants supplied the concrete and the Plaintiff
made payments whilst insisting on R.A. Bills. According to
the Plaintiffs, a total payment amounting to Rs.85,00,000/-
was made to the Defendants.
4. According to the Plaintiffs in June 2009 the
Defendants requested for payment of Rs.5 Lakhs, to which
Plaintiffs issued a cheque amounting to Rs.3 Lakhs on a
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FA 10.2014
promise by the Defendants that R.A. Bills would be
submitted by them; on a further demand for payment an
amount of Rs.2 Lakhs being made by the Defendants, the
Plaintiffs, believing the same to be a strategy to demand
money, stopped the payment of the earlier cheque for Rs.3
Lakhs and agreed to pay the same only if the Defendants
provided R.A .Bills. However, The Defendants sent a legal
notice under section 138 of the Negotiable Instruments Act,
in reply the Plaintiffs demanded R.A. Bills for payment to
continue and gave a clarification that Defendants were
entitled to Rs.65,25,000/- but the Plaintiffs paid
Rs.85,00,000/- and demanded the excess of Rs.19,75,000/-.
It is the Plaintiffs’ case that the defendants, pursuant
to the said reply, began winding up the project, despite
objection from the Plaintiffs, who sought assistance from
the Police and took away the machinery and the plant on
19.07.2009. The Plaintiffs have sought the following reliefs:
That the Defendants are liable to refund the Plaintiffs
the excess amount of Rs.16,02,006.25/- as they had been
paid Rs.85,00,000/- for the supply of 30,657.75 cubic metre
which payment is made in excess to the supply, at the rate
of 18% p.a.
Page 5 of 61
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FA 10.2014
The Defendants also filed Criminal Case No.274/2009
(10732/2015 New) against the Plaintiffs in the Court of the
Judicial Magistrate First Class at Navi Mumbai under
section 138 of the Negotiable Instruments Act and
subsequently process was issued against the Plaintiffs.
5. The Defendants vide their Written Statement and
Counter Claim dated 17.12.2009, contended that the
Plaintiffs themselves have not adhered to the Work Order
and are themselves liable to pay the Defendants
Rs.16,25,000/- along with interest @24% which amounts to
Rs.5,31,156 until June 2009 and Rs.1,95,000/- from
01.07.2009 till the filing of the suit as balance payment of
the said work; Rs.74,45,250/- along with interest @24%
which amounts to Rs.10,42,335, towards maintenance and
operation of the batching plant from 01.10.2008 to
31.05.2009, and the same was communicated to the
Plaintiffs vide letter dated 23.06.2009 which was never
replied to by the Plaintiffs, and to claim the said amount the
Defendants have filed a Counter claim in the said suit
claiming these amounts.
6. According to the Defendant, the Plaintiffs were bound
to purchase the total quantity of 45000 cubic metres during
the contract period and were to pay idle charges and total
Page 6 of 61
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FA 10.2014
contract value of Rs.1,01,25,000/-. It further the Defendants
case that they had submitted R.A. Bills, however, they were
not accepted by the Plaintiffs despite the same being sent
via Registered Post A.D which returned as “refused R to
sender”. Further the defendants have denied the allegations
on various grounds.
The plaintiffs on 12.01.2010 filed their Written
Statement to the Counter Claim of the defendants denying
the Defendants’ claim.
This Appeal was admitted vide order dated
13.02.2014, pursuant to which the Defendants filed
Miscellaneous Civil Application No.651 of 2015 for
amending the Written Statement/ Counter Claim and for
amendment of the Appeal memo. In the meantime, the
Criminal case no.274/2009 (10732/2015 New) was
compounded vide application dated 03.08.216 on payment
being made by the Plaintiff and the said case was disposed
of on 05.06.2018.
7. The Respondent filed yet another Miscellaneous Civil
Application No.699 of 2019, on 02.02.2019, seeking
amendment of the appeal to incorporate new grounds and
events which occurred subsequently ; Miscellaneous Civil
Page 7 of 61
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Application NO.896 of 2019, on 11.09.2019 for production
of Documents as additional evidence in terms of Order XLI
Rule 28 CPC and Miscellaneous Civil Application No.41 of
2026 (F) for refund of the Bank Guarantee of Rs.12,81,429/-
and Fixed Deposit of Rs.16,02,006/- deposited in this Court
pursuant to stay being granted vide order dated 13.02.2014
in the present appeal.
SUBMISSIONS
8. The Appellant was appearing in person in this matter
and was insisting on arguing the matter on his own. Since
this Court was of the opinion that it required assistance of a
Legal Counsel to put forth the case of the Appellant, in
Appeal, by an order of 20.01.2026, learned Advocate Mr.
Shivan Desai, was appointed to represent the Appellant and
assist the Court; nevertheless, the Appellant, through its
Proprietor Shri. Suresh P. Rao, presented written notes of
arguments before this Court, whilst learned Advocate Shri.
Shivan Desai advanced oral arguments and filed a written
synopsis on behalf of the Appellant. The following
submissions were advanced by the Appellant:
a. The Defendants failed to prove how an excess
amount of Rs.16,02,006.25/- was paid to
Appellants, which was a relief sought in the suit.
Page 8 of 61
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FA 10.2014
b. Defendants have not proved that total quantity of
30,657.75 Cu.Mts. was produced except by
providing a Statement of Accounts at Exhibit
68colly to 72 Colly as it was the only evidence
which was maintained by them. According to the
Appellant, mere production of the Statement of
Accounts and the fact that it was exhibited is not
proof of the content of the document.
c. Statements made by PW1 in Cross Examination
state that PW1 has deposed on statements of
accounts without having prima facie knowledge of
the same whereas Deepak Srivastava who is the
Project Manager should have been examined to
prove the authenticity of the Evidence for it to be
admissible and therefore the trial court could not
have given weightage to the said documents to
prove the quantity of concrete produced and
supplied.
d. Accounts of the defendants do not tally thus
reliance cannot be placed on the Statement of
Accounts, Voucher and other ledger entries and the
same is admitted by PW1.
Page 9 of 61
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FA 10.2014
e. The duration of the Work order is clearly stated to
be 12 months or production of 45,000 Cu.Mts at the
price of Rs.1,01,25,000/- or whichever is earlier
therefore contract could end upon completion of 12
months or production of 45000 Cu.Mts of concrete;
since 12 months period was over, irrespective of the
quantity, the said amount was to be paid to the
Defendants.
f. The Appellant claims that an amount towards Idle
charges is due to him as the contract provides for
such payment. It is submitted that PW-1 admits that
no order for production was given from 29.05.2008
to 29.09.2008, which entitle him to idle charges
according to the contract. Defendant is entitled for
charges for production and supply of concrete from
01.10.2008 to 31.05.2009, beyond contract period
and for maintenance of the batching plant during
the said period as the same is admitted in evidence
by PW-1. Reliance has been placed the following
case law:
i. Parimal v/s Veena1
1
(2011) 3 SCC 545
Page 10 of 61
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FA 10.2014
ii. Rangammal v/s Kuppuswami and anr2
iii. Narbada Devi Gupta v/s Birendra Kumar
Jaiswal and Nar 3
iv. Vishnu Vardhan v/s State of Uttar Pradesh
and Ors4.
The Appellant Mr. Suresh Rao, in person, has also
filed written notes of arguments. In these, I have noted that
the party in person has made serious personal allegations
against the Judge of the Trial Court and against the learned
Advocate appearing for the Plaintiff. On going through
these allegations, I am of the opinion that, these border on
being contemptuous and made to embarrass officers of the
Court and I therefore choose, under these circumstances, not
to refer to any of these arguments and allegations. The
substance of the written submission however, are that the
Plaintiff has committed fraud; the written submissions are
also to the extent that the liability of the original Plaintiff,
claimed in the counterclaim has been admitted during the
course of hearing of the Criminal Case before the JMFC in
Navi Mumbai, filed by the Defendant when a cheque issued
by the Plaintiff claimed to be dishonoured. These arguments
2
(2011) 12 SCC 220
3
(2003) 8 SCC 745
4
2025 SCC OnLine SC 1501
Page 11 of 61
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FA 10.2014
are raised outside the record and could be dealt with in this
Judgment at the time the MCA No. 41/2026(F) is dealt with.
The second set of written submission filed by the party on
25.02.2026 also referred to alleged fraud committed by the
Plaintiff and extensively refers to the evidence of PW1 on
the electronic evidence produced under Exhibit 46 to 74.
These submissions are dealt with by me whilst considering
the evidence of PW1.
9. Learned Advocate Mr. Bhargav Khandeparkar for the
Respondents has advanced the following submissions;
a. The learned Advocate has taken me through the
pleadings of the parties and the various Clauses of the
contract; his main submission was that the Defendant
could not claim the contract amount of
Rs.1,01,25,000/- in view of the Clauses of the contract
and most specifically to the Clause which deals with
delay charges and manner of paying the R.A. Bills.
The learned Counsel has extensively referred to the
evidence of the Defendant and the fact that the
Defendant had in fact charged idle charges, which
were subsequently merged and adjusted into
subsequent Work Order after one year has expired, and
within the contract value.
Page 12 of 61
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The learned Counsel has extensively referred the
correspondences between the parties. He had argued
that once the Defendant received receipt of 85 Lakhs
and does not produce R. A. Bills or a record, counter
signed by the Plaintiff’s Site Incharge, to substantiate
the quantum of R. M. C. Supplied, the burden of proof
under Section101 of the Evidence Act, would be on
the Defendant.
He submits that the Plaintiff cannot be expected
to discharge negative burden of proving these facts.
b. It was then submitted that the Defendant has not
proved any of the claims in the counterclaim based
upon the contract and the claim is only based on the
balance amount under the Work Order of
Rs.16,02,006.25/- claimed by the Plaintiff as excess
payment. It was also contended that there is no reason
for substantiating an exorbitant rate of interest of 24%
claimed in the counterclaim.
Reliance has been placed on the following
judgements:
i. Vishnu Vardhan (supra)
Page 13 of 61
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FA 10.2014
ii. Bibhuti Bhusan Dutta v/s Samarendra Nath
Misra5
iii. Ram Gopal v/s Vidya Devi6
iv. Gopal Krishnaji Ketkar v/s Mohamed Haji
Latif 7
v. Khushalbhai Mahijibhai Patel v/s A Firm of
Mohamadhussain Rahimbux8
vi. Niranjan Kaur v/s New Delhi Hotels Ltd9
vii. Citibank N.A v/s Standard Chartered Bank
& Ors10
viii. M/s Kailash Nath Associates v/s Delhi
Development Authority 7 Anr11
ix. Placido Francisco Pinto v/s Jose Francisco
Pinto12
x. Hemalatha & Ors v/s Tukaram & Ors13
xi. Annaya Kocha Shetty v/s Laxmibai Narayan
Satose14
5
2002 SCC OnLine Cal 350
6
2024 0 supreme (HP) 275
7
1968 SCC OnLine SC 63
8
1980 Supp SCC 1
9
1987 SCC OnLine Del 313
10
2004 (1) SCC 12
11
2015 2 SCC (Civ) 502
12
(2024) 14 SCC 569
13
2026 SCC OnLine SC 106
14
2025 SCC OnLine SC 758
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FA 10.2014
xii. R.S Amarnath Mehra & Co v/s Union of
India15
CONSIDERATIONS
10. I have considered the pleadings of the parties, the
evidence on record and their arguments; the following
points for determination arise in this Appeal:
(a) Has the Plaintiffs proved with legally acceptable
evidence whether it is entitled to the money claim of
Rs. 16,02,006.25/- with interest at the rate of Rs. 18%
per annum from the date of the suit till the effective
payment.
(b) Has the Defendant proved it is entitled to
the payments claimed in relief clause (a) to (f) of
the counter claim.
(c) Does the Judgment and Decree impugned
in this Appeal call for any interference.
11. The entire claim of the Plaintiff is based upon the
Work Order dated 12.09.2007, which is produced at
Exhibit-33 in the evidence of PW1-Siddharth Chaudhary.
According to the pleadings in the plaint, the Work of supply
15
1993 SCC OnLine Del 436
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FA 10.2014
of concrete was to be done by the Defendant in terms of the
Work Order dated 12.09.2007. From the pleadings, the
Plaintiff claim that the Work Order constituted the contract
between the parties, pursuant to which the Defendant set up
the RMC plant at the site appointed by the Plaintiff and
commenced supply of concrete to the Plaintiff, though the
contract stipulated the period to expire on 12.09.2008, it is
the Plaintiff’s pleading in para 11 of the plaint that the
contract continued after that date and the Defendant
continued to supply concrete. However, the Defendants
neglected to submit any Running Account Bills along with
Challans duly certified by the “Site In-charge” to
substantiate payments towards supply of concrete. The
Plaintiff also claimed that it maintains accurate accounts for
the quantity of concrete supplied by the Defendants and
payments made on that account. According to the Plaintiffs,
it has made payment in excess of RMC actually supplied.
The Plaintiff claims it has paid Defendants an amount of Rs.
85 Lakhs, when RMC supplied, according to its record was
approximately the value of Rs.68,97,994.75/- and hence an
excess payment of Rs.16,02,006.25/- was received by the
Defendants which ought to have been refunded to the
Plaintiff. The suit claims recovery of this amount with an
interest @ 18% per annum from the date of the suit till
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payment, on the claim that the contract was a commercial
one.
12. With these pleadings, the Plaintiff examined its
Account Manager Shri. Siddharth as PW1 and closed its
evidence. The two relevant considerations for deciding the
Plaintiff’s claim are, the terms contained in the contract
(Work Order) at Exhibit-33 and the evidence lead by PW1
to prove that the payment made in excess of what was due
to the Defendants amounted to Rs. 16,02,006.25/-.
13. Before proceeding to examine the oral evidence of
PW1, it would be necessary to understand the terms of the
contract between the parties, which in this case was the
Work Order dated 12.09.2007.
14. The Work Order in Clause 1 lays down the scope of
work required to be done and the quantity to be supplied by
the Defendants; under clause 2 of the Contract the plaintiff
was to provide for an area for installation, supply of raw
materials for production of concrete and other facilities
including transport; Clause 3 lays down the duration of
competition of work being 12 months or production of
45,000 Cu.Mts. Sub Clauses (1) to (3) of Clause (3)
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therefore provide for the duration of the contract and
provide for its extension
15. The second part of Clause (3) of the contract deals
with Quantities & Rates. Clause (1) thereof requires all
Quantity and Quality of concrete to be certified by the Site
Incharge on daily basis. It also requires R.A. Bills to be
submitted, and these would be based upon the certification
of the Site Incharge. Clause (1) of this part also requires
R.A. Bills submitted according to the Certificate to be paid
within four days of submission.
Clause (2) under “Quantities and Rates” requires a record to
be maintained jointly with the Defendants' representatives
and the Plaintiff’s Site Incharge; this record, which is to be
jointly maintained is for supply of concrete and for receipt
of raw materials. The said clause is reproduced herein and
is as follows:
“Quantities & rates:
1. All the quantity and quality of concrete shall be certified
by the site In charge on daily basis and it is final for
R.A.Bills submission. All the R.A. bills submitted by the
Agency shall be paid within 4 days after submission.
2. Agency's representative has to jointly with Site in Charge
of the Contractor maintain a record for the supply of
concrete and receipt of the raw material and cement.
3. The Contractor rates are firm and fixed through out the
period of contract and no escalation shall be paid to the
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Agency on any account till the completion of the scope of
works.
4. If any taxes, duties etc are applicable that will be paid by
the Contractor.
5. Income tax as applicable shall be deducted at source from
each of Employer's R.A. bills.
6. Agency's scope is labour work only.”
16. Claus (2) under “Quantities and rates” governs the
relations between the Contractor (Plaintiff) and the Agency
(Defendant) and is the key covenant which controls the
working of the contract between the parties. From the
reading of these clauses, the contract requires supply of raw
materials by the Plaintiff to the Defendant at the R. M.C
batching plant and after the R. M.C. is manufactured, the R.
M. C. is delivered to the construction site, for use by the
Contractor (Plaintiff) for construction work undertaken by
the Plaintiff in relation to the Defence Ministry. According
to this Clause, therefore the record of supply of raw
material, which in this case would be cement, sand and other
aggregates would have to be maintained in a record,
countersigned by the representative of the Defendant and
the Site Incharge of the Plaintiff. It is only if there was
supply of raw material that the Defendant could produce the
R. M. C.; the R. M. C. produced would then be supplied at
the construction site with a Certificate maintained in a joint
record signed by the Site Incharge. It is this joint record, to
be maintained under Clause (2) of “Quantities and Rates”
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that would be the main document which would evidence the
exact supply of the raw material and the exact output of R.
M.C. supplied to the construction site.
17. It is in the light of the aforementioned Clauses of the
contract which governs the execution and working of the
agreement between the parties that the evidence led by the
parties would have to be examined. The pleadings of the
Plaintiff do not claim maintenance of a record jointly
between the Defendant’s representative and the Site
Incharge of the Plaintiff. The pleading in para 9 of the plaint
is that after the Defendant set up the R. M. C. plant they did
not submit R.A. Bills in accordance with the contract, which
were certified by the Site Incharge of the Plaintiff and yet
collected huge amounts from the Plaintiff. In para 10 of the
plaint, it is pleaded that the Plaintiff maintained an accurate
account of the quantity supplied by the Defendant and the
payments were made on account. There is no statement
made in the plaint as to the manner in which and whether at
all the parties were maintaining a joint record countersigned
by Plaintiff’s Site Incharge and the Defendant’s
representative. In the absence of such specific pleading, one
would have to read the evidence and examine whether there
was any methodology adopted by the parties to comply with
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the joint record required to be maintained by them under
Clause (2) of the “Quantities and Rates”.
18. PW1 in his Affidavit in Evidence has stated in para 12
thereof that the Plaintiff maintained an accurate account of
the Quantity produced by the Defendant and the payments
made by the Plaintiffs to the Defendants. He further states
in para 17 of the affidavit that a total payment according to
the Plaintiff’s account of Rs. 85 Lakhs was made to the
Defendant as verified from its record. According to the
Plaintiff, its record disclose that the Defendant has supplied
30,657.75 Cu.Mts of concrete which if multiplied by the
contractual rate of Rs. 225 per Cu.Mts worked out to Rs.
68,97,993.75/-, leaving an access amount of Rs.
16,02,006.25/- claimed to have been paid by the Plaintiff to
the Defendant. This amount, is claimed by the Plaintiff to
be the Defendant’s unjust enrichment and is the relief
sought in the suit.
19. In this background, two facts which assume relevance
to decide the claim of the Plaintiff would have to be proved;
the first being, the fact that the record jointly maintained by
the representative of the Defendant and of the Plaintiff
containing details of the receipt of the raw material and
cement and details of supply of R. M. C. to the site were
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FA 10.2014
certified by the Site Incharge of the Plaintiff. The second
fact that required to be proved was the claim of excess
payment made to the Defendant by the Plaintiff, which is
the claim in the suit.
20. The first fact was attempted to be proved by
production of Exhibits 68 to 72 Colly which are extracts of
entries made in the statement of Account maintained by the
Plaintiff at its Project Office at Dabolim. These were
produced by PW1 and admitted in evidence accompanied
by Certificate under Section 65 B of the Indian Evidence
Act; these are five documents in all of which first four are
statements printed from the computer of different grades of
concrete recording Challan no. of the supply, while the fifth
is the summary of the total concrete produced which is at
Exhibit 72 Colly. These documents are stamped and
countersigned by PW1, who is the Accounts Manager of the
Plaintiff.
21. On perusal of the aforementioned documents, two
things stand out. The documents are print outs from the
original electronic record claimed to be maintained in a
computer, under the power of the witness PW1. The
Certificate under Section 65 B produced with them state that
the documents are printout of the record in the computer
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system of the Plaintiff, maintained in the regular course of
business and the information stated therein is derived from
the information regularly fed in the computer system.
22. Section 65B mandates that an electronic record would
be admissible in evidence, only if the conditions stated in
Sub Section 2 thereof and in compliance of Sub Section 4
thereof. In considering the requirements of compliance with
these provisions, the Supreme Court in Anwar P.V V/S P.K
Basheer and Ors16 has considered the details to be specified
as to the machine in which the electronic evidence was
stored and has made the following observations:
“ 14. Any documentary evidence by way of an
electronic record under the Evidence Act, in view of
Sections 59 and 65-A, can be proved only in
accordance with the procedure prescribed under
Section 65-B. Section 65-B deals with the
admissibility of the electronic record. The purpose of
these provisions is to sanctify secondary evidence in
electronic form, generated by a computer. It may be
noted that the section starts with a non obstante
clause. Thus, notwithstanding anything contained in
the Evidence Act, any information contained in an
electronic record which is printed on a paper, stored,
recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a
document only if the conditions mentioned under sub-
section (2) are satisfied, without further proof or
production of the original The very admissibility of
such a document i.e electronic record which is called
as computer output, depends on the satisfaction of the
four conditions under Section 65-B(2). Following are
the specified conditions under Section 65-B(2) of the
Evidence Act:
16
(2014) 10 SCC 473
Page 23 of 61
17th August, 2026
FA 10.2014
(i) The electronic record containing the information
should have been produced by the computer during
the period over which the same was regularly used to
store or process information for the purpose of any
activity regularly carried on over that period by the
person having lawful control over the use of that
computer;
(ii) The information of the kind contained in
electronic record or of the kind from which the
information is derived was regularly fed into the
computer in the ordinary course of the said activity,
(iii) During the material part of the said period, the
computer was operating properly and that even if it
was not operating properly for some time, the break
or breaks had not affected either the record or the
accuracy of its contents, and
(iv) The information contained in the record should
be a reproduction a or derivation from the
information fed into the computer in the ordinary
course of the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it is
desired to give a statement in any proceedings
pertaining to an electronic record, it is permissible
provided the following conditions are satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in which
the electronic record was produced,
(c) The certificate must furnish the particulars of the
device involved in the production of that record,
(d) The certificate must deal with the applicable
conditions mentioned under Section 65-B(2) of the
Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation
to the operation of the relevant device
Page 24 of 61
17th August, 2026
FA 10.2014
16. It is further clarified that the person need only to
state in the certificate that the same is to the best of
his knowledge and belief Most importantly, such a
certificate must accompany the electronic record like
computer printout, compact disc (CD), video compact
disc (VCD), pen drive. etc., pertaining to which a
statement is sought to be given in evidence, when the
same is produced in evidence. All these safeguards
are taken to ensure the source and authenticity, which
are the two hallmarks pertaining to electronic record
sought to be used as evidence. Electronic records
being more susceptible to tampering, alteration,
transposition, excision, etc. without such safeguards,
the whole trial based on proof of electronic records
can lead to travesty of justice
17. Only if the electronic record is duly produced in
terms of Section 1 65-B of the Evidence Act would the
question arise as to the genuineness thereof and in
that situation, resort can be made to Section 45-A-
opinion of Examiner of Electronic Evidence.
22. The evidence relating to electronic record, as
noted hereinbefore, being a special provision, the
general law on secondary evidence under Section 63
read with Section 65 of the Evidence Act shall yield to
the same. Generalia specialibus non derogant,
special law will always prevail over the general law.
It appears, the court omitted to take note of Sections
59 and b 65-A dealing with the admissibility of
electronic record. Sections 63 and 65 have no
application in the case of secondary evidence by way
of electronic record, the same is wholly governed by
Sections 65-A and 65-B. To that extent, the statement
of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this Court
in Navjot Sandhu case, does not lay down the correct
legal position. It requires to be overruled and we do
so. An electronic record by way of secondary evidence
shall not be admitted in evidence unless the
requirements under Section 65-B are satisfied. Thus,
in the case of CD, VCD, chip, etc., the same shall be
accompanied by the certificate in terms of Section 65-
B obtained at the time of taking the document, without
which, the secondary evidence pertaining to that
electronic record, is inadmissible.
Page 25 of 61
17th August, 2026
FA 10.2014
23. The appellant admittedly has not produced any
certificate in terms of Section 65-B in respect of the
CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-
20 and P-22. Therefore, the same cannot be admitted
in evidence. Thus, the whole case set up regarding the
corrupt practice using songs, announcements and
speeches fall to the ground.
24. The situation would have been different had the
appellant adduced primary evidence, by making
available in evidence, the CDs used for
announcement and songs. Had those CDs used for
objectionable songs or announcements been duly got
seized through the police or Election Commission and
had the same been used as primary evidence, the
High Court could have played the same in court to
see whether the allegations were true. That is not the
situation in this case. The speeches, songs and
announcements were recorded using other
instruments and by feeding them into a computer, CDs
were made therefrom which were produced in court,
without due certification. Those CDs cannot be
admitted in evidence since the mandatory
requirements of Section 65-B of the Evidence Act are
not satisfied. It is clarified that notwithstanding what
we have stated herein in the preceding paragraphs on
the secondary evidence of electronic record with g
reference to Sections 59, 65-A and 65-B of the
Evidence Act, if an electronic record as such is used
as primary evidence [under Section 62 of the
Evidence Act] the same is admissible in evidence
without compliance with the conditions in Section 65-
B of the Evidence.”
23. Anvar (supra) has been approved by the Supreme
Court in a later Judgment rendered in Arjun Panditrao
Khotkar v./s Kailash Kushanrao Gorantyal ad Ors17 ; the
relevant portions of this Judgment are quoted below:
“33. The non obstante clause in sub-section (1)
makes it clear that when it comes to information
contained in an electronic record, admissibility
and proof thereof must follow the drill of Section
17
(2020) 7 SCC 1
Page 26 of 61
17th August, 2026
FA 10.2014
65-B. which is a special provision in d this behalf
Sections 62 to 65 being irrelevant for this purpose.
However, Section 65-B(1) clearly differentiates
between the original" document which would be
the original "electronic record contained in the
"computer" in which the original information is
first stored and the computer output containing
such information, which then may be treated as
evidence of the contents of the "original"
document. All this necessarily shows that Section
65-B differentiates between the original
information contained in the "computer" itself and
copies made therefrom the former being primary
evidence, and the latter being secondary evidence.
34. Quite obviously, the requisite certificate, în
sub-section (4) is unnecessary if the original
document itself is produced. This can be done by
the owner of a laptop computer, à computer tablet
or even a mobile phone, by stepping into the
witness box and proving that the device concerned,
on which the original information is first stored, is
owned and/or operated by him. In cases where "the
computer", as defined, happens to be a part of a
"computer system" or "computer network" (as
defined in the Information Technology Act, 2000)
and it becomes impossible to physically bring such
network or system to the court then the only means
of proving information contained in such
electronic record can be in accordance with
Section 65-B(1), together with the requisite
certificate under Section 65-B(4). This being the
case, it is necessary to clarify what is contained in
the last sentence in para 24 of Anvar PV2 which
reads as if an electronic record as such is used as
primary evidence under Section 62 of the Evidence
Act This may more appropriately be read without
the words "under Section 62 of the Evidence
Act,...". With this minor clarification, the law
stated in para 24 of Anvar P.V.2 does not need to
be revisited.
35. In fact, in Vikram Singh v. State of Punjab 16,
a three-Judge Bench of this Court followed the law
in Anvar P.V.2, clearly stating that where primary
evidence in electronic form has been produced, no
certificate under Section 65-B would be necessary.
Page 27 of 61
17th August, 2026
FA 10.2014
This was so stated as follows: (SCC pp. 531-32,
paras 25-26)
"25. The learned counsel contended that the tape-
recorded conversation has been relied on without
there being any certificate under Section 65-B of
the Evidence Act, 1872. It was contended that
audio tapes are recorded on magnetic media, the
same could be established through a certificate
under Section 65-B and in the absence of the
certificate, the document which constitutes
electronic record, cannot be deemed to be a valid
evidence and has to be ignored from
consideration. Reliance has been placed by the
learned counsel on the judgment of this Court in
Anvar P.V. v. P.K. Basheer. The conversation on the
landline phone of the complainant situate in a shop
was recorded by the complainant. The same
cassette containing conversation by which ransom
call was made on the landline phone was handed
over by the complainant in original to the police.
This Court in its judgment dated 25-1-2010 has
referred to the aforesaid fact and has noted the
said fact to the following effect (Vikram Singh
case17, SCC p. 61. para 5)
The cassette on which the conversations had been
recorded on the landline was handed over by Ravi
Verma to $1 Jiwan Kumar and on a replay of the
tape, the conversation was clearly audible and was
heard by the police."
26. The tape-recorded conversation was not
secondary evidence which required certificate
under Section 65-B, since it was the original
cassette by which ransom çall was tape-recorded,
there cannot be any dispute that for admission of
secondary evidence of electronic record a
certificate as contemplated by Section 65-B is a
mandatory condition. 18
36. Despite the law so declared in Anvar
PV2, wherein this Court made it clear that the
special provisions of Sections 65-A and 65-B of the
Evidence Act are a complete code in themselves
when it comes to admissibility of evidence of
information contained in electronic records, and
also that a written certificate under Section 65-
Page 28 of 61
17th August, 2026
FA 10.2014
B(4) is a sine qua non for admissibility of such
evidence, a discordant note was soon struck in
Tomaso Bruno. In this judgment, another three-
Judge Bench dealt with the admissibility of
evidence in a criminal case in which CCTV
footage was sought to be relied upon in evidence.
The Court held: (Tomaso Bruno case, SCC pp.
191-92, paras 24-25)
"24. With the advancement of information
technology, scientific temper in the individual and
at the institutional level is to pervade the methods
of investigation. With the increasing impact of
technology in everyday life and as a result, the
production of electronic evidence in cases has
become relevant to establish the guilt of the
accused or the liability of the defendant. Electronic
documents stricto sensu are admitted as material
evidence. With the amendment to the Evidence Act
in 2000, Sections 65-A and 65-B were introduced
into Chapter V relating to documentary evidence.
Section 65-A provides that contents of electronic
records may be admitted as evidence if the criteria
provided in Section 65-B is complied with. The
computer generated electronic records in evidence
are admissible at a trial if proved in the manner
specified by Section 65-B of the Evidence Act. Sub-
section (1) of Section 65-B makes admissible as a
document, paper printout of electronic records
stored in optical or magnetic media produced by a
computer, subject to the fulfilment of the conditions
specified in sub-section (2) of Section 65-B
Secondary evidence of contents of document can
also be led under Scion 65 of the Evidence Act. PW
13 stated that he saw the full video recording of the
fateful night in the CCTV camera, but he has not
recorded the same in the case diary as nothing
substantial to be adduced as evidence was present
in it.
25. The production of scientific and electronic
evidence in court as contemplated under Section
65-B of the Evidence Act is of great help to the
investigating agency and also to the prosecution
The relevance of electronic evidence is also
evident in the light of Mohd. Ajmal Amir Kasab v.
State of Maharashtra wherein production of
transcripts of internet transactions helped the
Page 29 of 61
17th August, 2026
FA 10.2014
prosecution case a great deal in proving the guilt
of the accused. Similarly, in State (NCT of Delhi)
Navjot Sandhu 13, the links between the, slain
terrorists and the masterminds of the attack were
established only through phone call transcripts
obtained from the mobile service providers"
37. What is clear from this judgment is that
the judgment of Anvar PV2 was not referred to at
all. In fact, the judgment in State (NCT of Delhi) v
Navjot Sandhu 13 was adverted to, which was a
judgment specifically overruled by Anvar P.V.2 It
may also be stated that Section 65-B(4) was also
not at all adverted to by this judgment. Hence, the
declaration of law in Tomaso Bruno following
Navjot Sandhu 13 that secondary evidence of the
contents of a a document can also be led under
Section 65 of the Evidence Act to make CCTV
footage admissible would be in the teeth of Anvar
PV2 and cannot be said to be a correct statement
of the law. The said view is accordingly overruled
38. We now come to the decision in Shashi
Mohammad. In this case, by an order dated 30-1-
2018 made by two Judges of this Court, it was
stated (SCC pp. 808-11, paras 21-30)
"21. We have been taken through certain decisions
which may be referred to. In Ram Singh v. Ram
Singh20, a three-Judge Bench Considered the said
issue. English judgments in R. v. Maqsud Ali21 and
Rav Robson22 and American Law as noted in
American Jurisprudence 2d (Vol. 29) p. 494, were
cited with approval to the effect that it will be
wrong to deny to the law of evidence advantages
to be gained by new techniques and new devices,
provided the accuracy of the recording can be
proved. Such evidence should always be regarded
with some caution and assessed in the light of all
the circumstances of each case. Electronic
evidence was held to be admissible subject to
safeguards adopted by the Court about the
authenticity of the same. In the case of tape-
recording, it was observed that voice of the
speaker must be duly identified, accuracy of the
statement was required to be proved by the maker
of the record, possibility of tampering was
required to be ruled out. Reliability of the piece of
evidence is certainly a matter to be determined in
Page 30 of 61
17th August, 2026
FA 10.2014
the facts and circumstances of a fact situation.
However, threshold admissibility of an electronic
evidence cannot be ruled out on any technicality if
the same was relevant.
22. In Tukaram S. Dighole v Manikraa Shivaji
Kokate 23, the same principle was reiterated. This
Court observed that new techniques and devices
are the order of the day. Though such devices are
susceptible to tampering, no exhaustive rule could
be laid down by which the admission of such
evidence may be judged. Standard of proof of its
authenticity and accuracy has to be more stringent
than other documentary evidence.
23. In Tomaso Bruno v. State of P7, a three-Judge
Bench observed that advancement of information
technology and scientific temper must pervade the
method of investigation. Electronic evidence was
relevant to establish facts. Scientific and electronic
evidence can be a great help to an investigating
agency. Reference was made to the decisions of
this Court in Mohd. Ajmal Amir Kasab v. State of
Maharashtra19 and State (NCT of Delhi) v. Navjot
Sandhu13,
24. We may, however, also refer to the judgment of
this Court inn Anvar P.V. v. P.K. Basheer, delivered
by a three-Judge Bench. In the said judgment in
para 24 it was observed that electronic evidence
by way of primary evidence was covered by
Section 62 of the Evidence Act to which procedure
of Section 65-B of the Evidence Act was not
admissible. However, for the secondary evidence,
procedure of Section 65-B of the Evidence Act was
required to be followed and a contrary view taken
in Navjot Sandhu13 that secondary evidence of
electronic record could be covered under Sections
63 and 65 of the Evidence Act, was not correct.
There are, however, observations in para 14 to the
effect that electronic record can be proved only as
per Section 65-B of the Evidence Act.
25. Though in view of the three-Judge Bench
judgments in Tomaso Bruno and Ram Singh20, it
can be safely held that electronic evidence is
admissible and provisions under Sections 65-A
Page 31 of 61
17th August, 2026
FA 10.2014
and 65-B of the Evidence Act are by way of a
clarification and are procedural provisions, If the
electronic evidence is authentic and relevant the
same can certainly be admitted subject to the court
being satisfied about its authenticity and
procedure for its admissibility may depend on faet
situation such as whether the person producing
such evidence is in a position to furnish certificate
under Section 65-B(4).
26. Sections 65-A and 65-B of the Evidence Act,
1872 cannot be held to be a complete code on the
subject. In Anvar PV2, this Court in para 24
clarified that primary evidence of electronic
record was not covered under Sections 65-A and
65-B of the Evidence Act. Primary evidence is
document produced before the court and the
expression "document" is defined in Section 3 of
the Evidence Act to meet any matter expressed or
described upon any substance by means of letters,
figures or marks, or by more than one of those
means, intended to be used, or which may be used.
for the purpose of recording that matter.
27. The term "electronic record" is defined in
Section 2(1)(t) of the Information Technology Act,
2000 as follows:
2. (1)(t) "electronic record" means data,
record or data generated, image or sound stored,
received or sent in an electronic form or micro film
or computer generated micro fiche 28. The
expression "data" is defined in Section 2(1)(0) of
the Information Technology Act as follows:
2. (1)(o) "data" means a representation of
information, knowledge facts, concepts or
instructions which are being prepared or have
been prepared in a formalised manner, and is
intended to be processed. is being processed or has
been processed in a computer system or computer
network, and may be in any form (including
computer printouts magnetic or optical storage
media, punched cards, punched tapes) or stored
internally in the memory of the computer;
29. The applicability of procedural requirement
under under Section 65-B(4) of the Evidence Act
Page 32 of 61
17th August, 2026
FA 10.2014
of furnishing certificate is to be applied only when
such electronic evidence is produced by a person
who is in a position to produce such certificate
being in control of the said device and not of the
opposite party. In a case where electronic evidence
is produced by a party who is not in possession of
a device, applicability of Sections 63 and 65 of the
Evidence Act cannot be held to be excluded. In
such case, procedure under the said sections can
certainly be invoked. If this is not so permitted, it
will be denial of justice to the person who is in
possession of authentic evidence/witness but on
account of manner of proving, such, document is
kept out of consideration by the court in the
absence of certificate under Section 65-B(4) of the
Evidence Act, which party producing cannot
possibly secure Thus, requirement of certificate
under Section 65-B(4) is not always mandatory
30. Accordingly, we clarify the legal position on
the subject on the admissibility of the electronic
evidence, especially by a party who is not in
possession of device from which the document is
produced. Such party cannot be required to
produce certificate under Section 65-B(4) of the
Evidence Act. The applicability of requirement of
certificate being procedural can be relaxed by the
court whenever interest of justice so justifies."
39. It may be noted that the judgments referred to
in para 21 of Shashi Mohammad are all judgments
before the year 2000, when Amendment Act f 21 of
2000 first introduced Sections 65-A and 65-B into
the Evidence Act and can, therefore, be of no
assistance on interpreting the law as to
admissibility into evidence of information
contained in electronic records. Likewise, the
judgment cited in para 22, namely, Tukaram S.
Dighole v. Manikrao Shivaji Kokate is also a
judgment which does not deal with Section 65-
B……….
40. Much succour was taken from the three-
Judge Bench decision in Tomaso Bruno in para 23,
which, as has been stated hereinabove, does not
state the law on Section 65-B correctly. Anvar
P.V.2 was referred to in para 24, but surprisingly,
in para 26, the Court (in Shashi Mohammad case³)
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17th August, 2026
FA 10.2014
held that Sections 65-A and 65-B cannot be held to
be a complete code on the subject, directly
contrary to what was stated by a three-Judge
Bench in Anvar PV2 It was then "clarified" that the
requirement of a certificate under Section 64-B(4),
being procedural, can be relaxed by the court
wherever the interest of justice so justifies, and one
circumstance in which the interest of justice so
justifies would be where the electronic device is
produced by a party who is not in possession of
such device, as a result of which such party would
not be in a position to secure the requisite
certificate
41. Quite apart from the fact that the judgment in
Shafi Mohammad³ states the law incorrectly and is
in the teeth of the judgment in Anvar P.V.2,
following the judgment in Tomaso Bruno which
has been held to be per incuriam hereinabove the
underlying reasoning of the difficulty of producing
a certificate by a party who is not in possession of
an electronic device is also wholly incorrect.
45. Thus, it is clear that the major premise of
Shashi Mohammad³ that such certificate cannot be
secured by persons who are not in possession of an
electronic device is wholly incorrect. An
application can always be made to a a Judge for
production of such a certificate from the requisite
person under Section 65-B(4) in cases in which
such person refuses to give it.
46. Resultantly, the judgment dated 3-4-2018 of a
Division Bench of this Court reported as Shashi
Mohd. v. State of H. P.8, in following the law
incorrectly laid down in Shashi Mohammad³, must
also be, and is hereby, overruled.
60. It may also be seen that the person who gives
this certificate can be anyone out of several
persons who occupy a responsible official
position" in relation to the operation of the
relevant device, as also the person who may
otherwise be in the management of relevant
activities" spoken of in sub-section (4) of Section
65-B. Considering that such certificate may also
be given long after the electronic record has
actually been produced by the computer, Section
65-B(4) makes it clear that it is sufficient that such
Page 34 of 61
17th August, 2026
FA 10.2014
person gives the requisite certificate to the "best of
his knowledge and belief". [Obviously, the word
"and" between knowledge and belief in Section 65-
B(4) must be read as "or", as a person cannot
testify to the best of his knowledge and belief at the
same time.
61. We may reiterate, therefore, that the certificate
required under Section 65-B(4) is a condition
precedent to the admissibility of evidence by way
of electronic record, as correctly held in Anvar
P.V.2, and incorrectly "clarified" in Shashi
Mohammad³. Oral evidence in the place of such
certificate cannot possibly suffice as Section 65-
B(4) is a mandatory requirement of the law.
Indeed, the hallowed principle in Taylor v. Taylor
40, which has been followed in a number of the
judgments of this Court, can also be applied.
Section 65-B(4) of the Evidence Act clearly states
that secondary evidence is admissible only if led in
the manner stated and not otherwise. To hold
otherwise would render Section 65-B(4) otiose.
81. What is laid down in Section 65-B as a
precondition for the admission of an electronic
record, resembles what is provided in the second
part of Section 136. For example, if a fact is sought
to be proved through the contents of an electronic
record (or information contained in an electronic
record), the Judge is first required to see if it is
relevant, if the first part of Section 136 is taken to
be applicable.
82. But Section 65-B makes the admissibility of
the information contained in the electronic record
subject to certain conditions, including
certification. The certification is for the purpose of
proving that the information which constitutes the
computer output was produced by a computer
which was used regularly to store or process
information and that the information so derived
was regularly fed into the computer in the ordinary
course of the said activities
Page 35 of 61
17th August, 2026
FA 10.2014
24. Applying the ratio laid down in Anvar (supra) and
Arjun (supra) to the evidence led by PW1 in attempting to
prove the statements of Accounts produced under Exhibit
68 to 72 Colly, I am of the opinion that these Statement of
Accounts and entries do not stand proved for the following
reasons:
The requirements of Section 65B (4) of the Evidence
Act, since PW1 desired to give a statement pertaining to an
electronic evidence, requires that the Certificate identifies
the electronic record containing the statement, the manner
in which the record was produced, and such Certificate must
furnish the particulars of the device involved in the
production. The Certificate produced by PW1 does not
specify the Serial Number of the device or the computer
where the electronic record was stored, nor does it state the
particulars of the device, which could be, the brand, model
Number or such other details, to be able to identify the
original device which contains the original of the electronic
evidence. To that extent the Trial Court has committed an
error of law in accepting Exhibit 68 to 72 colly and the
Certificates produced thereof being in compliance with
provisions of Section 65B of the Evidence Act. In fact, the
five statements of Accounts ought not to have been admitted
Page 36 of 61
17th August, 2026
FA 10.2014
in evidence, much less be considered as proof of the fact of
supply of R. M. C..
25. The same question can be also viewed from a different
angle. The evidence had to be led by the parties in
consonance and in proof of the compliance of Clause (1)
and (2) of “Quantities & Rates” Agreement of the Work
Order. What was required therefore, to be proved by the
Plaintiff by way of electronic evidence or any other
evidence in its possession was the joint record, counter
signed by the representative of the Defendant and the Site
Incharge of the Plaintiff. Under Clause (2) of “Quantities &
Rates” of the Work Order, the joint record was to contain
the details of raw material and cement supply by the
Plaintiff to the Defendant at the R. M.C. plant and the details
of the R. M. C. manufactured and supplied by the
Defendants at the Plaintiff’s construction site. Neither the
Plaintiff nor the Defendant has produced any record, which
partakes of a joint record counter signed by the Defendant’s
representative and the Site Incharge of the Plaintiff, to
substantiate the quantity of R. M.C. supplied at the
construction site. The sole document which forms the basis
of the Plaintiff’s claim is not the joint record to be
maintained under the contract, but a record in a form of a
Page 37 of 61
17th August, 2026
FA 10.2014
statement of entries made into the electronic record of the
Plaintiff, which the witness claims is the Ledger Account;
in cross examination, at page 30 of his evidence, he states
the following:
“…………I say that the entries are the same except
that in voucher numbers are different. I also admit
that the narration against each entry are also
different and changed as the voucher numbers are
different. The ledger entries at Exbt. 46 and Exbt.
74 were prepared by my accountant. I do not know
which account had prepared the same and whether
the said accountant who prepared the same had
done so by referring to the voucher and then
prepared the same or not. I have not checked the
vouchers visa vis the ledger entries on Exbt 46 and
74. The witness is asked to disclose the name of
the accountant who prepared the ledger account
at Exbt (46) and Exbt 74 and the witness states that
he does not want to disclose the name of the said
accountant. The witness is asked to disclose the
names of the accountant who were working with
the plaintiff from 1.1.2006 to 4.2.2010 and
thereafter till date. The witness states that he does
not wish to disclose the names of the accountants.
I have not checked the vouchers visa vis the ledger
accounts at Exbt 46 and Exbt 74. say that Deepak
Srivastava who has filed the present suit and was
supposed to depose in the present case has verified
the vouchers visa vis the ledger accounts at Exbt
46 and 74. On the basis of the vouchers and the
ledger account entries at Exbt 46 & 74, the
plaintiff has made on account payment of
Rs.85,00,000/- to the defendants. It is not true to
suggest that Exbt 46 & 74 have been falsely
prepared and fabricated by the plaintiff.”
26. Reading this cross examination, one can draw certain
inferences from the same. The Ledger Account entries in
Exhibit 46 and Exhibit 74 are claimed to be based on Vouchers
but it is admitted that there are discrepancies in the Voucher
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17th August, 2026
FA 10.2014
number and the number actually entered in the Ledger. The
witness also states that Ledger entries in these Exhibits were
prepared by his Accountant, but he is not prepared to disclose
the name of his Accountant. He also states that he has not
checked the Vouchers Vis-a -Viz Ledger Accounts at Exhibits
46 and 74. It is clear from this evidence that entries made in
Exhibit 46 and 74 are not to the knowledge or under the
supervision and power exercised by PW1 as an Account
Manager, and cannot be considered as proved. What is even
more relevant, is that the statements made in the plaint on the
claims based upon the Account entries have been verified by
one Deepak Srivastava, who has signed the verification in
affidavit, claiming the facts to be true to his knowledge. Deepak
Srivastava was not examined to prove the entries in the
electronic record.
27. However, when one reads the cross examination of PW1
at page 14, there is a clear admission on the part of PW1 that no
joint record of supply of raw material and supply of R. M. C. at
the construction site was maintained under signature of the Site
Incharge of the Plaintiff. Exhibit 68 to 71 Colly, which are
identified to have been partly signed by Srivastava (who has not
been examined), are also, admittedly not reflective of all
supplies of R. M. C. to the site during the period of the contract
and during the extended period between 01.10.2008 and
31.05.2009. The relevant portion of the evidence of PW1, on the
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FA 10.2014
basis of which the above findings are arrived me are quoted
below:
“…..The Plaintiff has supplied material during the
monsoon period from end of May to the end of
September have not produced any documents on
record showing supply of material during the
monsoon period from end of May to end of
September. I admit that joint records for supply of
concrete and the receipt of raw material and
Cements has not been jointly maintained as
provided in clause 2 of Quantities and Rates on
page 2 of the work order at Exbt 33. It is true that
except for my statement that the plaintiff has
supplied material during the monsoon period from
end of May to the end of September there is no
documents to produce on record to this effect. It is
true that The certification at Exbt 68 colly to 71
golly have not been done jointly with the site in
charge of the contractor as required under clause
2 of the Quantities and Rates on page 2 of the work
order at Exbt 33 I am the accounts Manager of the
plaintiff From12.9 2007 to 12.9 2008 Deepak
Srivastava was the Project Manager. As Project
Manager Deepak Srivastava was authorized to
supervise the production of the defendant Exbt 68
colly to Exbt 71 colly are the details of the concrete
productions on day to day basis on which the
signature of Deepak Srivastava, Project Managers
not found. Shown Exbt 72 colly particularly the
signature on the same by Deepak Srivastava at
points "B". I cannot say on which date Deepak
Srivastava signed the same at point "B". I have
signed on Exbt 72 colly at points "A" on 13.4.2011.
To the suggestion that Deepak Srivastava must
have signed on Exbt 72 colly at point "B" on
13.4.2011, I say it is not true. I have not produced
the original annexure summary along with the
certificate at Exbt 12 colly signed by Deepak
Srivastava. Deepak Srivastava has been
transferred to Assam from September, 2009 till
date. On 13.4.2011 Deepak Srivastava did not
come to Goa to sign at point "B" on Exbt 72 colly.
It is true that no taxes or duties have been paid by
the contractor.”
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28. In his further evidence, PW1 at page 37 of his
evidence has categorically admitted that the actual
production of cement as per the Work Oder/contract is
certified by the Site Incharge on daily basis, along with the
Defendant’s representatives. He also admits that such joint
record was neither maintained nor certified. The evidence
to this effect is quoted below:
“It is true that the actual production of cement as
per the work order at Exbt 33 will be certified by
the site in charge on daily basis and the agencies
representatives has to jointly with the site in charge
of the contractor maintains the record for the
supply of concrete. It is true that such joint
certification by the site in charge of the defendant
and the plaintiff representative bas not been done
and not produced in the Court. I can produce the
joint certification by the site in charge of the
defendant and the representative of plaintiff on the
next date.”
On the same page, PW1 admits that on the sole Ledger
maintained for the Defendant by the Plaintiff, several of the
entries made in Exhibit 46, 47 to 67 and 74, which are
Vouchers, do not tally with the Ledger entries. These
statements in evidence are quoted below:
“Only one account of the defendant is maintained in
the ledger of the plaintiff at exhibit 46 and at exhibit
74, there are number of ledger entries which are not
related to the work order at exhibit 33. it is true that
the ledger entries at exhibit 46, vouchers at exhibits
47 to 67 and the ledger account at exhibit 74 do not
tally with each other. It is true that as per accounting
procedure, all the said three exhibits exhibit 46, 47 to
67 and 74 should tally with each other. It is true that
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as the said 3 exhibits 46, 47 to 67 and exhibit 7 do not
tally with each other, it cannot be said that the
accounts have been tallied and can be accepted as
true and genuine It is true that the accounts at exhibit
46, 47 to 67 and at exhibit 74 are required to be
reflected in the balance sheet which has not been so
reflected. It is not true to suggest that exhibit 46.47 0
67 and exhibit 74 are false documents which cannot
be relied upon. It is true that the plaintiff has not
furnished in writing the weekly and monthly
programmes in advance for the concrete requirements
with the grades as required under the special
conditions at serial no. 5 of the work order at exhibit
33. it is true that in terms of clause 5(1) of the exhibit
33, if the plaintiff fails to furnish the weekly and
monthly programmes in advance for concrete
requirements with grades, the defendant shall not be
responsible for the non availability of concrete and so
cause delay.”
29. The relief sought in the plaint is based upon the
statement that from the statements of Accounts maintained
by the Plaintiff, a total of Rs. 85 Lakhs was paid to the
Defendant, but R. M. C., calculated at Rs. 225/- per Cu.Mts
of the value of only Rs.68,97,993.75/- was supplied to the
Plaintiff; the excess payment of Rs. 16,02,006.25/- is due
to the Plaintiff as claimed in relief Clause (a) of the plaint.
In cross examination, however, PW1 has admitted that the
excess amount paid of Rs. 16,02,006.25/-, mentioned in
Exhibit 46 has not been shown in the Ledger Account
maintained for the Defendant, nor it has been mentioned or
indicated in the Balance Sheet of the Plaintiff’s company as
excess amount paid. This statement assumes great
significance, since according to the Plaintiff’s own Ledge
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Account and the Balance Sheet, the amounts claimed in the
suit were not shown as outstanding and payable by the
Defendant to the Plaintiff. The relevant portions of the cross
examination of PW1 that reflect these findings are quoted
below:
“….Shown Exbt 72 colly at page which gives total
supply as 30,657.75. The witness admits that this
figure was the total production of concrete cement
supplied by the defendant. To the question whether
the production given in the reply at Exbt 44 of 28,938
cubic meters is correct or the figure of 30657 75 is
correct. The witness states that both the figures are
correct. The witness further states that the figure of
28,938 was given by approximation It is true that the
excess payment amount of Rs 19,75,000/- mentioned
in para 5 of Exbt 44 and the excess amount of Rs.
19,75,000/ mentioned in para 14 of Exbt 44 has not
been shown in the ledger account of the defendant. It
is true that the excess amount of Rs. 19,75,000/-
mentioned in the said reply at Exbt 44 as well as the
same averment made in the plaint has not been shown
or indicated in the balance 0 sheet of the plaintiff
company. It is not true to suggest that the excess
amount of Rs. 19,75,000/- mentioned in the reply at
Exbt 44 as well as in the plaint are false.”
30. Considering all the aforementioned evidence and
admissions by PW1, the burden of proving that excess
payment has been made by the Plaintiff to the Defendant,
based upon its record lay on the Plaintiff and the Plaintiff
has certainly not discharged that burden; this is
compounded by the fact that even where no joint record was
maintained under the counter signature of the Site Incharge
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FA 10.2014
of the Plaintiff, in pursuance of Clause (1) and (2) under the
heading “Quantities & Rates” in the contract, the Plaintiff
had ample opportunity of examining its Site Incharge or at
least its Project Manager, Srivastava, who would have
personal knowledge of the quantity of R.M.C actually
supplied to the site. Neither of these were examined, nor
was the Accountant, who made the entries into the
Ledger/Statement of Account on the basis of the Vouchers
produced, examined. The Plaintiff has therefore failed to
discharge the burden of proving his claim.
31. In this context, I refer to Section 101 of the Indian
Evidence Act which stipulates the burden of proof, and
requires that whoever desires a Court to give Judgment as
to a right or liability dependent on the existence of facts
which he asserts, must prove those facts exists. Whilst
dealing with this provision and Section 103 of the Indian
Evidence Act, the Supreme Court in Parimal(supra) has
held as under:
“19. The provisions of Section 101 of the Evidence Act
provide that the burden of proof of the facts rests on
the party who substantially asserts it and not on the
party who denies it. In fact, burden of proof means
that a party has to prove an allegation before he is
entitled to a judgment in his favour Section 103
provides that the burden of proof as to any particular
fact lies on that person who wishes the court to
believe in its existence, unless it is provided by any
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FA 10.2014
special law that the proof of that fact shall lie on any
particular person. The provision of Section 103
amplifies the general rule of Section 101 that the
burden of proof lies on the person who asserts the
affirmative of the facts in issue.”
32. Again in Rangammal (supra), the Supreme Court has
reiterated that until the burden is discharged by the party on
whom the same lies, the other party is not required to prove
his case. The relevant para 21 is quoted below:
21. Section 101 of the Evidence Act, 1872 defines
"burden of proof" which clearly lays down that:
"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."
Thus, the Evidence Act has clearly laid down that
the burden of proving a fact always lies upon the
person who asserts it. Until such burden is
discharged, the other party is not required to be
called upon to prove his case. The court has to
examine as to whether the person upon whom the
burden lies has been able to discharge his burden.
Until he arrives at such conclusion, he cannot
proceed on the basis of weakness of the other
party.”
There is no doubt that the statements/Ledger have
been produced and Exhibited, but merely because the same
is admitted in evidence, it does not constitute to be proof of
the contents of the document and such contents are required,
in the present case, being electronic evidence, to be proved,
both in terms of Section 65 B and by examining the person
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FA 10.2014
who was responsible to certify the receipt of the R. M.C. at
site. In this context, the observations of the Supreme Court
in Narbada Devi Gupta (supra) are relevant and are
reproduced below:.
“16. Reliance is heavily placed on behalf of the
appellant on the case of Ramit Dayawala & Sons
(P) Ltd.3 The legal position is not in dispute that
mere production and marking of a document as
exhibit by the court cannot be held to be a due
proof of its contents. Its execution has to be proved
by admissible evidence, that is, by the "evidence of
those persons who can vouchsafe for the truth of
the facts in issue". The situation is, however,
different where the documents are produced, they
are admitted by the opposite party, signatures on
them are also admitted and they are marked
thereafter as exhibits by the court. We find no force
in the argument advanced on behalf of the
appellant that as the mark of exhibits has been put
on the back portions of the rent receipts near the
place where the admitted signatures of the plaintiff
appear, the rent receipts as a whole cannot be
treated to have been exhibited as admitted
documents.”
Applying the ratio of these Judgments to the evidence
before me, the Plaintiff has failed to prove and discharge the
burden of proving the content of the Statements of Accounts
or the fact/claim that the Defendant had supplied R.M.C.
worth only Rs.68,97,993.75/-, which is the relevant fact to
be proved, in order to claim the excess payment made.
33. The Trial Court approached the entire manner with
somewhat a reverse analogy. Without addressing itself to the
specific Clauses of the Agreement and the requirement of
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FA 10.2014
the parties to maintain a joint record (para 22 and 23 of the
impugned Judgment) has in one single paragraph (i.e. para
24) has held that the Plaintiff has proved through Exhibit 68
Colly to 71 Colly that only 30,657.75 Cu Mt. of concrete
was supplied worth Rs.68,97,993.75/-. There is no
discussion at all on the provisions of the Evidence Act,
considering this was an electronic evidence, nor on the
burden of proof, nor on the cross examination of PW1. The
findings arrived at in these paragraphs are without
considering the evidence on record or the law applicable to
the evidence of the Plaintiff, and are therefore perverse and
contrary to the provision of Section 65 B and Section 101
of the Evidence Act.
34. The learned Advocate for the Plaintiff has submitted
that the allegations made in the plaint as to the claim of the
Plaintiff are in the negative form. He has submitted that the
Defendant has admitted the receipt of Rs. 85 Lakhs and has
also admitted supply of only 30,657.75 Cu.Mts of R. M. C.
In that context, it was argued that having admitted the actual
supply in Cubic meters, there could be no negative burden
of proof of this fact placed on the Plaintiff. Reference was
made to Bibhuti Bhusan Dutta (supra), Ram Gopal (supra)
to support this proposition.
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FA 10.2014
In the plaint, at para Nos. 10, 12 and 14 of the plaint,
the Plaintiff has stated that the Defendant has supplied a
total quantity of 30,657.75 Cu.Mts of R. M. C. In reply to
these assertions, at para Nos. 20, 21 and 22, of the written
statement, the Defendants have denied these assertions. The
Defendants have specifically stated that the records
allegedly maintained by the company are not genuine and
they have denied that as per the records of the company,
Defendants have supplied 30,657.75 Cu.Mts of R.M.C.
They have further denied that they have collected excess
amount of Rs. 16,02,006.25/- as alleged by the Plaintiff. It
is in this background that the provisions of Section 101,
under which the burden was fully on the Plaintiff to prove,
by evidence, its assertion that the Defendant has supplied
30,657.75 Cu.Mts had to be discharged. The question of
proving a negative burden did not arise in these facts. The
Judgments cited would therefore not apply to these facts.
35. Insofar as the arguments of the Plaintiff that they
having proven the quantum of supply of R. M. C., in the
absence of the Defendants leading any evidence to
contradict these figures an adverse inference ought to be
drawn against the Defendants. There is no doubt that the
four Judgments cited by the Plaintiff support this
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FA 10.2014
proposition, however, having held that the Plaintiffs have
not discharged the initial burden to prove the supply of R.
M. C., the question of drawing adverse inference in the light
of the provision of Section 101 does not arise.
36. I accordingly answer point (a) for determination in the
negative. As a consequence, the claim of the Plaintiff of Rs.
16,02,006.25/- against the Defendant stands rejected.
37. The counterclaim of the Defendant seeks several
reliefs, which have been all been rejected by the Trial Court
in the impugned Judgment and Decree. These have been
briefly listed below:
(a) For balance payment of Rs. 16,25,000/- in terms of
the Work Order.
(b) For payment of Rs. 74,45,250/- towards operation
and maintenance of the R. M. C. plant from
01.10.2008 to 31.05.2009.
(c) Interest payment calculated at 24% per annum on
Rs. 16,25,000/- amounting to Rs. 7,26,156.10/- and
further interest till payment.
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FA 10.2014
(d) Interest payment calculated at 24% per annum
amounting to Rs. 10,42,335/- on Rs. 74,45,250/- and
further interest till payment.
(e) For a direction to issue Certificate under Section
194 (J) towards T. D. S.
(f) For a direction to pay Service Tax.
38. The foundation for the reliefs sought in the
counterclaim are based on the following averments made
therein:
(a) The Defendant is a SSI unit; according to the
contract, the Work Order was irrevocable for 12
months or production of 45,000 Cu.Mts R. M. C. and
the contract value of the Work Order was Rs.
1,01,25,000/- and therefor, the Plaintiff is bound to
pay the contract value of Rs. 1,01,25,000/-. Since the
Plaintiff has admittedly paid only Rs. 85 Lakhs to the
Defendant, the balance amount of Rs. 16,25,000/- is
due and payable with interest @ 24% per annum.
These claims are in prayer Clauses (a) to (d) of the
counterclaim.
(b) Since the Plaintiff was required to perform a
contractual value of Rs. 1,01,25,000/-, it was liable to
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FA 10.2014
pay statutory charges/taxes, towards Service Tax and
deduct taxes (T.D.S.) and make such payments to the
Income Tax Department, which are now claimed in
prayer Clause (e) and (f).
39. For determining whether the Defendant is entitled to
the total contractual amount of Rs. 1,01,25,000/- under the
contract, if no R.M.C. was manufactured and supplied
during the contract period i.e. from 12.09.2007 to
11.09.2008, one would have to examine the contract i.e. the
Work Order. As discussed earlier, the quantities and rates
and the method of maintaining joint records is specified in
the contract. According to Clause (1), the contract stipulates
total quantity of production of R. M. C. by the Defendant to
be 45,000 Cu.Mts. The rate per month of production is
specified as approximately 4000 Cu.Mts. The Defendant
was required to set up its own plant, maintain the same and
procure testing of its batches of concrete, all at its own cost.
40. The scope of work by the Plaintiff is specified in
Clause (2), which was, supply of raw material, supply of the
site storage tanks, material storage area, restrooms for 15
workmen and other ancillary installations for running the
batching plant. Clause (6) specifies that the scope of the
contract that is its performance by the Defendant was only
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FA 10.2014
towards labour work. In this scheme of the contract, one can
conclude that the only cost to the Defendant in the contract
was the cost of setting up of the batching plant, dismantling
it after the contract was concluded and the cost of labour.
All costs towards raw material, water supply for use of
labour and for manufacture of R.M.C., the cost towards
providing land and other storage facilities would be borne
by the Plaintiff.
41. Clause (3) stipulates the duration of the contract and
requires the Plaintiff to provide the land and all other
facilities within a stipulated period, after which the work by
the Defendant would commence; Sub Clause (2) of Clause
(3) stipulates that the contract is irrevocable and continuous
for the duration for the period of 12 months or on supply of
45000 Cu.Mts of R. M. C., or whichever is earlier. In the
face of these conditions, various contingencies were
possible, amongst them, the delay in supply of raw material
or delay in specifying the requirement of concrete for any
period of time on the part of the Plaintiff, is one such
possibility. In this case, the delay could be attributable to
the remise on the part of the Plaintiff. The Defendant may
also indulge in a breach of delay of performance due to lack
of labour or break down of the plant or slow production
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below the rate of expected 4000 Cu.Mts. per month. The
contract does not specify the consequence of these breaches
by the Defendant, but it specifies in Sub Clause (9) of
Clause (5) that if the production of the plant is hampered
due to non-availability of work, site, material etc., idle
charges would be applicable at Rs. 5 Lakhs per month,
which would be adjusted or paid by the Plaintiff. Reading
these Clauses in conjunction, the Defendant would be
entitled to idle charges at this rate, though the contract
remains silent as to the rates at which the Defendant would
be paid if no production was made possible for a few hours
in a day or such type of exigencies. Nevertheless, in my
opinion, the only amount that the Defendant would be
entitled to, would be the idle charges at the rates specified
above, if set up in the pleadings of the plaint are proved in
evidence.
42. It is the Defendant’s case that he would be entitled to
entire value of the contract i.e. Rs. 1,01,25,000/-, at the end
of 12 months, if he has produced less than the targeted
45000 Cu.Mts., as according to him there were no delays on
his part. On going through the entire evidence of DW1,
there is absolutely no evidence produced by the DW1, either
in the form of joint record, counter signed by the Defendant
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and the Site Incharge or by any type of record to substantiate
that he had produced the entire 45000 Cu.Mts of R. M. C.
prior to one year, and within the term of the contract; the
Defendant relies upon the statement made in the plaint that
it had supplied 30,657.70 Cu.Mts. However, in the written
statement the assertion that only 30,657.70 was supplied has
been denied and there is no positive statement made
anywhere in the Defendant’s pleading either to the fact of
the exact tonnage supplied by it or to the fact that there were
delays attributable to the Plaintiff in supply of raw material
or request for supply or non providing of facilities at site.
There are no pleadings in the counterclaim to substantiate
that the contract was breached by the Plaintiff, much less
any evidence led by DW1.
43. The contract states its value, but this by itself does not
entitle the Defendant to the contract value or balance
claimed in relief Clause (a) for reasons stated above. In my
opinion the stipulation in Clause 5 of the Work Order for
payment of idle charges of Rs. 5 Lakhs per month is the only
amount that the Defendant could claim, provided he pleads
and proves that the plant was kept idle due to the Plaintiff’s
remise in supply of material and of placing orders, and this
is not the Defendant’s case in his written statement or
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FA 10.2014
counterclaim. This clause, if put to work between the
parties, in view of the fact that the R. M. C. plant was
expected to run under Clause (5), 24 hours a day and 7 days
a week, would entitle the Defendant to calculate even an
hour of idle charges based on the rates specified. The fact
that the value of the contract is stated to be Rs. 1,01,25,000/-
is of no consequence, and no claim by the Defendants be
based on this figure as it is not a covenant in the contract.
Viewed from a different angle, had the Plaintiff complied
with all supplies of raw material and its part of the contract,
and if the Defendant had produced less than 45000 Cu.Mts.
of R. M. C. within a period of the contract, it would be
entitled to the payment calculated on Cubic metres
produced at Rs. 225/- per Cu.Mts and not the contract
amount of Rs. 1,01,25,000/-. In addition, if the contract was
continued beyond one year, or completion of full production
of 45000 Cu.Mts , the Defendant would claim payments
only towards production supplied at Rs. 225/- per Cu.Mts,
until termination of the extended period.
44. In his evidence, DW1 has filed an Affidavit mainly
restricted to the contentions raised in the pleadings and to
raising a claim to the contract value. The Affidavit in
Evidence however, does not state anything to the effect that
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there was any delay or shortage of work due to breach of
supply by the Plaintiff. In fact, DW1 claims that an amount
of Rs. 8,43,750/- was due to him every month irrespective of
R. M. C. production. He also admits that there was no record
of R. M. C. produced and states that the Plaintiffs maintained
their own record, while the Defendant maintained a separate
record, both for the period of the contract and the extended
period of the contract. Most of the cross examination of
DW1 is restricted to interpretation of the Clauses of the
Agreement or pending cheque bouncing case, which are
irrelevant for the purpose of deciding the claim. In my
opinion therefore, the claim of the Defendant is not founded
upon the covenants in the contract. The contract is also silent
on rates of interest on either side and perusal of the cross
examination of the Defendant does not disclose the basis on
which he claims interest @ 24 % per annum. The claim in
prayer Clause (a) and (b) is therefore rejected, and the point
for determination (b) is answered in the negative.
45. The Defendant has filed Miscellaneous Civil
Application No.651 of 2015 under Order 41 Rule 27 CPC
seeking to amend the written statement and counterclaim
and incorporate the fact that it was a registered Micro, Small
and Medium Enterprises Development Act, 2006 (MSME),
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FA 10.2014
as on the date of the contract and would therefore be entitled
to interest on his claim at 24%. The rate of interest claimed
is based upon the provisions of Section 16 of the MSME
Act. An application under Order 41 Rule 27 CPC is required
to be considered along with the evidence produced by the
parties during the trial. The amendment is restricted only to
incorporate the fact that the Defendant was a MSME unit,
when the contract was entered into and therefore would be
entitled to the interest rate specified in the said Act. On
going through the application, there is not a single averment
made therein to justify or establish that notwithstanding
exercise of due diligence, the evidence relating to
registration of the Defendant under said Act was not to his
knowledge or could not be produced after exercise of such
diligence or was prevented on producing it during the trial.
The fact that it was registered under MSME Act was known
to the Defendant at the stage of filing its pleadings and on
this count alone, I am justified in rejecting the application.
However, after having considered the evidence led by the
parties, the covenant in the contract and on that basis
rejecting the claims in the reliefs sought by the Defendant,
there would be no purpose served in allowing the
application, which is only to claim a higher rate of interest
under the said Act, as the Defendant is not entitled to the
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FA 10.2014
principal claim under the said Act. For all these reasons
therefore, the Miscellaneous Civil Application No.651 of
2015 stands rejected.
46. In view of what is held above, Miscellaneous Civil
Application No. 699/2019 for amending the Memo of
Appeal to incorporate details of Criminal Case under
Section 138 between the parties would be redundant; the
documents sought to be produced in Miscellaneous Civil
Application No. 896/2019 from the aforementioned
Criminal Case are also irrelevant for the decision of this
matter. Both applications i.e. Miscellaneous Civil
Application No. 699/2019 and Miscellaneous Civil
Application No. 896/2019 are therefore dismissed. In view
of the directions passed in the operative part of this
Judgment, Miscellaneous Civil Application No. 41/2026(F)
stands disposed of. Office objection in this application
stands waived.
47. For the reasons recorded in answer to points for
determination (a) and (b), the point for determination (c) is
answered in the following terms:
(a) The Judgment and Decree passed by the Court of
the Civil Judge Senior Division at Vasco in Special
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Civil Suit No. 39/2009/B calls for an interference to
the extent that it has decreed the Plaintiff’s suit and
directed the Defendant to pay Rs. 16,02,006.25/- with
interest @ 18% per annum with effect from the date
of the suit till payment is quashed and set aside and
the suit stands dismissed; for reasons cited above, the
Decree to the extent it dismisses the Defendant’s
counterclaim does not call for any interference.
48. In the light of the answers to the points for
determination stated above, the Appeal is partly allowed.
Special Civil Suit No.39/2009/B, before the Civil Judge
Senior Division at Vasco stands dismissed; the Decree of the
Civil Court dated 31.10.2013 to the extent that it dismisses
the Defendant’s counterclaim stands confirmed. All
amounts which may have been deposited by the
Appellants/original Defendants in this Court to secure the
Decree of the Trial Court and to secure the stay of any
Execution Proceedings shall be paid to the Appellant No. 1/
original Defendant No.1 with accrued Bank interest if any;
if any Bank Guarantee was executed by the Appellants, the
same shall stand discharged and the Guarantee returned to
any person authorized by Appellant No.1/original
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Defendant No. 1. In the circumstances of the case there
shall be no costs. Decree shall be drawn accordingly.
49. In parting, I must record appreciation for the able
assistance by Advocate Shri. Shivan Desai, who was
appointed by this Court to assist this Court in arguing the
matter on behalf of the Defendants/Appellants herein,
considering that the Appellant was appearing in person.
Without his assistance, this Court would not able to
appreciate the voluminous evidence and the rival
submissions made by the parties.
VALMIKI MENEZES, J.
JUDGMENT CONTINUED
50. At this stage, the learned Advocate appearing for the
Respondent/original Plaintiff submits that the Plaintiff
desires to file an Appeal to the Supreme Court against this
Judgment and Decree. He further submits that if the amount
deposited in this Court to secure the Decree as also if the
Bank Guarantee, which has been deposited with this Court
is released, it might render the Appeal infructuous.
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51. The submission is vehemently opposed by the
Appellant. It is submitted by the Appellant that the deposit
of the part of the Decretal amount and the Bank Guarantee
has itself caused great prejudice to the Appellant/original
Defendant.
52. Considering that the amount deposited and the Bank
Guarantee has been with this Court since 13.02.2014,
considering the prejudice that may be caused to the Plaintiff,
the operative part of the Judgment, which is in para 48 to
the extent that it directs release of the deposit and the
discharge of the Bank Guarantee shall stand stayed for a
period of eight weeks from today.
VALMIKI MENEZES, J.
Page 61 of 61
17th August, 2026
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