High Court of Bombay

Vinergy International Pvt. Ltd. v. Dimple Dineshbhai Shah

MANU/MH/2621/2016

07.12.2016

Civil

Failure to cross examine witness on material portions of deposition must be taken as being truthful and credible

Plaintiff had filed present suit for a summary decree in sum of Rs.1,49,50,000/- with interest @ 18% p.a. on amount of Rs.1,00,00,000/¬ from date of filing of suit till payment/realization. It is the case of Plaintiff that, as there was a large amount of Rs.1,35,68,15/¬ due and payable by Umesh Enterprises to Plaintiff, Plaintiff met Defendant and Umesh Shah. During meeting, Defendant guaranteed payments to be made by Umesh Shah Enterprises and in furtherance thereto gave a cheque for Rs.1 crore as security. As said Umesh Enterprises did not pay balance amount and since, Defendant had guaranteed repayment of dues of Umesh Enterprises and its customers, Plaintiff presented cheque for Rs.1 crore issued by Defendant. Cheque was dishonoured on presentation.

Defendant did not cross¬-examine PW¬1 on invoices produced. There is no case put to witness “denying supply”, “disputing price”, “disputing quantity”, “disputing quality” etc. Furthermore, Defendant calls upon Plaintiff to produce a statement showing details of invoices relating to Umesh Enterprises and details of invoices relating to customers of Umesh Enterprises. This statement was received in evidence.

By not putting any of its affirmative case namely as regards “misappropriation of cheque” and “ allegation of non supply of goods” Defendant must be deemed to have accepted case of the plaintiff in its entirety. Failure to cross examine a witness on material portions of his deposition must be taken as being truthful and credible.

Plaintiff has also produced circumstantial evidence, which supports and corroborates its case. Post dating of a cheque is a matter that quite easily fits in with case of Plaintiff that, defendant stood security for the supplies to be made by the plaintiff to M/s.Umesh Enterprises and its customers. It is extremely pertinent to note that PW-1 was never asked to explain this so called anomaly. There is no cross-¬examination of any nature on documents produced. Defendant therefore, must be considered to have accepted correctness of contents of documents. High Court decreed the suit in sum of Rs.1 crore together with interest thereon at 9% p.a. from date of suit until payment/realization.

Tags : Agreement Dues payment Dishonour

Share :