1. Plaintiff filed the suit for recovery of damages of Rs. 9,300/- from the defendant at the rate of Rs. 300/- per month from 24-12-1961 to 20-7-1964 for non-supply of a truck in time. Plaintiffs case may be stated in brief. He is 'A' Class contractor executing works under the State Government and was in urgent need of 2 trucks for his business. Defendant is the dealer of Tata Mercedes Benz trucks (hereinafter called the TMB trucks). Plaintiff placed orders with defendant for supply of 2 TMB trucks of 1.312/42-165 wheel base modeland payment was to be made on delivery of the truck. Defendant acknowledged receipt of plaintiff's anplication and registered his name allotting him serial number C-195 and C-196. Plaintiff also deposited Rs. 2,000/- for each truck in the State Bank of India as guarantee. Plaintiff moved the State Government through Chief Engineer for delivery of the trucks to him on priority basis. Government sanctioned delivery on priority basis and the manufacturer Tata Engineering and Locomotive Company (hereinafter described as TELCO) was informed accordingly. TELCO also intimated that plaintiff would be supplied with 2 TMB trucks on special priority. Defendant supplied one truck to plaintiff, but subsequently did not supply the other truck in spite of several correspondence. Thereafter defendant asked plaintiff if he was willing to accept the alternative model. Plaintiff agreed to it and asked if that could be supplied within 30 days from the date of receipt of plaintiff's letter, but defendant remained silent. No truck was supplied to plaintiff even though notice was sent through his Advocate. Plaintiff claimed damages as defendant knowingly and deliberately defaulted in complying his part of the contract.
2. Defendant's case is as follows :--There was no completed contract between the parties for supply for trucks. One truck was supplied on priority basis, but no second vehicle was received by defendant from the manufacturer. Thereafter National emergency was declared and under the Commercial Vehicles (Distribution and Sale) Control Order, 1963 distribution of Vehicles was banned. According to this order plaintiff was not entitled to any preference and as the serial number of plaintiff was changed, no Vehicle was supplied of any model within the period. The bank guarantee of plaintiff expired on 20-7-1964. (The date on which the suit was instituted) and the plaintiff did not renew the guarantee and hence the defendant is not responsible for any breach of contract nor is liable to pay any damages.
3. The trial court held that there was no contract for sale of 2 TMB trucks to plaintiff and dismissed the suit. Plaintiff appealed against this decision. The learned Single Judge held that the defendant is bound by the contract to supply of 2 TMB trucks to the plaintiff. Defendant was in possession of the second truck for supply to the plaintiff and did not supply the same. As against this decision defendant has come up in appeal.
4. The quantum of damages is not disputed.
5. The appellant contends that there was no contract between the parties to sell 2 TMB trucks on priority basis and defendant was not in possession of the second truck which it had to supply inasmuch as no supply has been made by the manufacturer.
6. There is no dispute between the parties that the plaintiff placed orders for 2 TMB trucks with defendant, plaintiff also deposited Bank guarantee for the same, he applied to the Government through the Chief Engineer for delivery on special priority basis, Government informed the manufacturer (TELCO), the manufacturer informed the parties that supply would be made to the plaintiff on priority basis, the first truck was supplied on priority basis to plaintiff on 24-12-1962 and the second truck has not been supplied. It is contended by the defendant that there was no contract for supply of trucks on priority basis, inasmuch as plaintiff moved the Government and Government informed the manufacturer (TELCO) who informed the defendant to supply 2 trucks to plaintiff on priority basis and so there was no direct contract between plaintiff and defendant on this term. This contention has no force. There is no dispute that defendant agreed to supply 2 trucks to the plaintiff on application by the latter and defendant was bound to supply the trucks according to directions of the manufacturer and the manufacturer directed defendant to supply 2 trucks on priority basis and defendant in his turn also intimated plaintiff accordingly. Defendant also supplied the first truck to the plaintiff on priority basis. Subsequently, also defendant has never repudiated this arrangement, on the other hand, letters issued by the defendant clearly establish that defendant had undertaken to supply truck to the plaintiff on priority basis. It is also not disputed that when trucks of the particular make for which plaintiff had placed orders were not available, the defendant asked plaintiff if he was willing to take an alternate model. Defendant also wrote to the manufacturer that it was not in a position to supply the second truck on priority basis to the plaintiff as the truck had not been supplied by the manufacturer. We agree with the finding of the learned Single Judge that there was a contract between the plaintiff and defendant for supply of two TMB trucks on priority basis.
7. The next question that arises for consideration is if defendant had received any truck from TELCO for supply of the second truck and did not supply the same to the plaintiff. The learned Single J udge has held that from Ex-79 it would appear that defendant was already in possession of a truck and accordingly intimated the plaintiff, and defendant did not produce papers of his head office which was within its special knowledge to show that no truck was received during that period and as such adverse inference is to be drawn against defendant.
8. Defence contention is that Ex-79 does not show that defendant was already in possession of the second truck. It oh the other hand shows that defendant was expecting the consignment.
In Ex-79, defendant informed the plaintiff that :--
'We are in a position to allot you one Tata Mercedes-Benz Chassis Model L 312/42-165 WB against your order. We shall be pleased if you will kindly furnish us with the following within 7 days from the date hereof in order that we may be able to allot you the chassis from the current incoming consignment.'
In para 4 of that letter it was mentioned that :--
'We shall be able to arrange delivery of the chassis to you from the current consignment.'
From above recitals, the learned Single Judge has come to the conclusion that defendant was already in possession of a truck. This letter clearly shows that defendant had not received the consignment from the manufacturer and was expecting the consignment.
9. Burden of proof is on the plaintiff to establish that defendant had received the second truck but did not supply. It is stated in para 19 of the plaint that the defendant has already supplied trucks to others whose names have been registered long after the date of his contract, but in his statement in court the plaintiff (P. W. 7) states that he does not know if any body had been supplied with trucks whose name was registered afterwards. So the averment in the plaint is not established. Plaintiff issued summons to the defendant (Vide Ex. 86) to produce documents to the following effect :--
'You are directed to produce your register maintained regarding registration of Tata Mercedes Benz Truck for the years 1961, 1962, 1963 and 1964.'
In response to this notice (Ex. V) the register of bank guarantee chronologically arranged and supply of trucks to the persons placing orders was produced by defendant. It is contended by the defendant that plaintiff had not called for the stock register which is at the head office at Rourkela and as such no adverse inference is to be drawn against defendant for non-production of the stock register. It is argued by Mr. Dey that from the evidence of D. W. 1 it appears that when any truck is received, it is entered in the stock register which is at the head office at Rourkela and the stock register would show how many trucks were received by defendant and as such adverse inference is to be drawn against the defendant for non-production of the stock Register.
In the case of Ahmad AH v. Mohammad Hanif, AIR 1958 Madh Pra 129 it is held :
'The case had to be decided primarily upon the evidence led by the plaintiff and unless that evidence was good the defendants were not called upon to produce their own books without the plaintiff having asked for them. If the plaintiff wanted to see their books of account he could have asked themto make an affidavit of documents in their possession or power and also could have asked for inspection and discovery of documents. Without the plaintiff doing that we do not think he was entitled to rely upon a presumption arising from the failure of the defendants to produce their books of account in court.'
It has also been held in the case of Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134 :--
'An adverse inference could only have been drawn against the plaintiffs respondents if the appellant had asked the Court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non-production of accounts.'
In the case of Khalil Adalkah v. Great American Insurance Co., (1969) 73 Cal WN 279 it is held that :--
'If I am to draw any adverse inference against the defendant as suggested by Mr. Ghosh I will also have to draw adverse inference against the plaintiff.' It is further held that :--
'Where both the parties had filed their respective affidavits of documents long before the hearing of the suit and each party had opportunity of obtaining order for discovery of documents, the Court will not draw any adverse inference under Section 114, illustration (g) of the Evidence Act against a party for not disclosing a document :'
10. Contentions of both sides are to be considered on the above principles. TELCO is the manufacturer and supplier of trucks to defendant. The best document for the supply of truck is available with TELCO which is a renowned concern. Plaintiff did not take any step for production of the document by TELCO to show that in fact truck was supplied to the defendant in the relevant period. There is absolutely no evidence from the side of the plaintiff that defendant, received any truck from TELCO. In view of the principles laid down above we hold that no adverse inference can be drawn against the defendant for non-production of the stock register inasmuch as the same was not called for by the plaintiff. Adverse inference can also be drawn against the plaintiff for not calling for the best document from TELCO.
There was correspondence between the plaintiff and defendant relating to supply of second truck and plaintiff sent copies to the TELCO. The latter wrote a letter (Ex. Q) to the defendant. The Director of the Company visited Cuttack and had discussion with plaintiff and thereafter sent a reply (Ex. R) to TELCO. In this letter it has been clearly mentioned that :--
'We did not get any vehicle of this model for a considerable time now, and we even do not know, when we will get one.'
This letter is dated 28-11-1963. From this letter it appears that no vehicle was received by defendant from TELCO. It is evident from this letter that the stock register of the defendant at Rourkela would not have shown supply of any truck to defendant by TELCO. No useful purpose would have been served if the stock register would have been produced. Accordingly, we hold that no adverse inference can be drawn against the defendant for non-production of the stock register on which defendant does not place reliance.
11. It is contended by Mr. Dey that in Ex. 70 defendant wrote to plaintiff on 30-4-1962 asking him to inform within 7 days whether the plaintiff was interested to take deli-very of the chassis offered to him. In this connection our attention was drawn to the statement of D. W. 1 to the following effect :
'We were in a position to supply truck to the plaintiff by the time we wrote Ext. 70.'
It is argued that defendant had already received the truck from the manufacturer. D. W. 1 has clearly stated in examination-in-chief that the second truck could not be supplied as the manufacturer did not release it. Also to the question by the court he has stated to the following effect :--
'We had no truck when we wrote Ex. 70. Ex. 70 is an allotment letter. Had TELCO released any truck in our favour, we would have supplied it to the plaintiff.' Ex. 70 has thus been explained and it is clear that no truck had been received from the manufacturer by the defendant and this letter related only to allotment.
12. It is also an admitted fact that National emergency was declared in 1962 and the Commercial Vehicles (Distribution and Sale) Control Order, 1963 was promulgated. A telegram was sent on 27-10-1962 (Ex. T) by TELCO to all dealers to suspend delivery of truck and the head office of the defendant in its turn informed accordingly all its branches by Ex. C dated 31-10-1962. By Ex. H dated 8-11-1962 defendant was informed that restrictions have been imposed by Government of India on sale of trucks. Due to this ban no supply could be made to the plaintiff on priority basis. Admittedly priority positions were cancelled by order of the Government of India and therefore the plaintiff cannot claim priority of supply. This is not disputed by plaintiff.
On the aforesaid analysis we hold that no truck was supplied by the manufacturer to the defendant during the relevant period and as such there is no breach of contract on the part of defendant. Therefore, plaintiff is not entitled to the relief claimed.
13. In the result, the judgment of the learned single judge is set aside and that of the trial court is restored. The appeal is allowed with costs throughout.
G.K. Misra, C.J.
14. Iagree. An interesting question of law arisesin this case. Plaintiff did not call for the stock register of the defendant which might have shown whether the second truck had been supplied by the manufacturer to the defendant. Yet, Mr. Dey for the defendant contended that adverse inference is to be drawn against the defendant for non-production of the stock register. The soundness of this contention is to be examined.
15. The law on the point seems to be quite well settled. When a party wants a certain thing to be proved in order to succeed in a case it is for that party to bring that evidence into record. In this case plaintiff would be entitled to damages if he proves that defendant did not supply the truck though it received the same from the manufacturer. The onus is on the plaintiff to establish by satisfactory evidence that defendant received the truck but did not give delivery of the same to the plaintiff in breach of the contract. Plaintiff can discharge this onus by producing evidence in his possession or in the possession of third parties. He can also prove his case by calling for evidence in the possession of the defendant. It was open to the plaintiff to call for the stock register of the defendant to utilise it in evidence that entries therein proved his case. Where, however, the plaintiff did not call for the stock register no obligation is cast on the defendant to produce the same unless he considered that the production of such evidence would materially advance the defence case. Defendant's stand is that the stock register does not contain any entry of receipt of a truck from the manufacturer. The stock register could, however negatively prove the defence version by the absence of an entry. It was however, open to the defendant to choose as to what evidence would support its case. Plaintiff cannot compel the defendant to produce particular types of evidence unless plaintiff takes appropriate steps through court for production of the same. No adverse inference is to be drawn against the defendant for non-production of the stock register.
Illustration (g) to Section 114 of the Evidence Act runs thus :
'The court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.'
In this case the stock register was not called for by the plaintiff from the defendant. It cannot be said that the defendant withheld such document.
16. Each party is to produce the best evidence in support of his case. In this case the best evidence was in the possession of the manufacturer. Plaintiff could have called for relevant documents from the manufacturer to establish that the second truck had been despatched to the defendant for supply to the plaintiff. As the plaintiff did not call for the best evidence adverse inference will be drawn against him under Illustration (g) to Section 114 of the Evidence Act.
17. Even assuming that adverse inference could be drawn against the defendant for non-production of the stock register though not called for, the adverse inference to be drawn against the plaintiff for not calling for the relevant document from the manufacturer would counterbalance the adverse inference to be drawn against the defendant for non-production of its stock register. (1969) 73 Cal WN 279, (Khalil Adalkhah v. Great American Insurance Co.) throws some light in support of this view.