1. This Second Appeal by the plaintiff is against the reversing judgment of the Subordinate Judge of Berhampur dismissing the suit against the first defendant in the appeal by it against the judgment of the District Munsif, Berhampur, decreeing the suit against all the three defendants.
2. The first defendant is the French Motor Car Company Ltd., which carries on some business in Calcutta in motor cars, spare parts and accessories. The Second defendant, the Ganjam Automobiles Ltd., is a firm dealing in motor cars, etc., in Vizianagram and is represented by the third defendant. The plaintiff is a firm at Berhampur under the name and style of Messrs. Ridhikaran Ramadin.
3. The plaintiff's case is that the third defendant who is the agent of the first defendant Company carries on some business under the name and style of the Ganjam Automobiles Ltd., that he approached the plaintiff at Berhampur and booked an order as agent of the first defendant on 21-6-57 agreeing to supply one Bedford Truck, 157 wheel-base chassis for Rs. 8660/- and wanted an advance of Rs. 1000/-; that the plaintiff gave the draft No. CXY 444737 in the name of the first defendant Company and the truck was agreed to be supplied by the first week of July and as the truck was not supplied as agreed upon, he files the suit for recovery of a sum of Rs. 1210/- including interest at the rate of 12 per cent, per annum from all the defendants.
4. Only the first defendant contested the suit alleging that neither defendant No. 2 nor defendant No. 3 was at any time the agent of the Company, having authority to do any act for it or to represent it in dealings with third parties; that the said Company was not a party to any contract which may have been entered into by the plaintiff with the second or the third defendant for the supply of a Bedford truck; that the Company has nothing to do with the businesscarried on by defendants 2 and 3 on their ownaccount and that the only relation between defendants 2 and 3 and the first defendant is that the second defendant as a sub-dealer of the first defendant used to obtain from it supplies of cars and spare parts in preference to others. The first defendant also denies that a draft for Rupees 1000/- was sent by the plaintiff to the first defendant.
5. The trial Court decreed the suit against all the defendants holding that the first defendant was the principal under the suit contract on the ground of the non-production, of the written agreement, which had been entered into between defendants 1 and 2 in connection with the terms of their mutual dealings, by the first defendant, transmission to the first defendant of the draft No. CXY 444737 for Rs. 1000/- referred to in the order form Ext. 3, the assurance given by the first defendant to the plaintiff as per its letter Ext. 4 dated 22-8-47 that in case the plaintiff failed to get satisfaction from the sub-dealer, the first defendant Company itself would take up the matter on hearing from the plaintiff and the enquiry by the first defendant from the plaintiff on a prior occasion as per Ext. 6 dated 10-12-46 as to whether in view of the increase in the price of Bedford 157, the plaintiff would like its order placed with the Ganjam Automobiles Ltd., to stand at the increased price or to be cancelled.
6. The learned Subordinate Judge held that these circumstances do not amount to making the first defendant the principal of the suit transaction.
7. Mr. B. Mohapatra, learned counsel for the appellant, contended that the learned Subordinate-Judge erred in law in refusing to draw an adverse inference from the non-production, by the first defendant, of the contract of agency between the first defendant on the one hand and defendants 2 and 3 on the other, and that the learned Subordinate Judge misread the documents Exts. 3, 4, 6 and others in arriving at a conclusion that they do not support the case of the plaintiff that defendants 2 and 3 were the agents of the first, defendant as far as the suit contract is concerned. Ext. 3 is the order given by the plaintiff. It purports to be in the name of the Ganjam Automobiles Ltd., and shows the price to be 'price ex-Showroom at Calcutta Rs. 8660/-' and on the reverse the terms and conditions of the contract are stated. They are as follows :
'This order is subject to approval of our principals at Calcutta......Dispute: in case of any dispute all settlements, whether through court or arbitrators, are to be made in Calcutta....'
8. it is common ground that defendants 2 and 3 have no Showroom at Calcutta. The conditions in the order form showing that in case of dispute settlements shall be made in Calcutta and that the order is subject to 'approval of our Principals at Calcutta', clearly lead one to the inference that by the 'Principals' is meant the first defendant at Calcutta. Further the draft drawn by the plaintiff for Rs. 1000/- was received by the first defendant from the second andthird defendants. in the letter written by thesecond defendant, Ext. D/1 dated 24-6-47, it is stated :
'Herewith we enclose a draft on the Central Bank of India for Rs. 1000/- one thousandonly, being the advance for two Bedford-Chassis 157.'
In Ext. B/1 dated 17-7-47 a letter written by the second defendant to the first defendant, the second defendant informed the first defendant that the amount of Rs. 1000/- might be transferred to the spare parts account. In Ext. 4 dated 22-8-1947 a letter written by the first defendant in reply to the plaintiff's letter complaining that he placed an order with its sub-dealers for a Bedford 157 Chassis wherein the plaintiff stated that he had paid them a deposit of Rs. 1000/-by demand draft, the first defendant wrote to the plaintiff that in case he gets no satisfaction from their sub-dealers they (the first defendant) shall be pleased to take up the matter with him themselves on hearing from the plaintiff. In Ext. 6 a letter written by the first defendant to the plaintiff on 10-12-1946 in connection with a prior order placed with the second defendant, the first defendant enquires from the plaintiff that
'we shall be pleased if you will advise us whether you wish your order to stand at the increased price, or whether you wish it to be cancelled.'
These letters, Mr. Mohapatra contends, clearly indicate that the first defendant was treating the second and third defendants as their agents also for sale of motor cars and trucks. Mr. L. Mohanty, the learned counsel for the respondents, contends that inasmuch as the order was to the Ganjam Automobiles Ltd., the conditions on the reverse only refer to the second defendant and not to the first defendant. He also contends that the assurance given by the first defendant in Ext. 4 is only a piece of business courtesy.
I am inclined to hold that the learned Subordinate Judge has clearly misread the implications of the correspondence and the order. The defendants 2 and 3 have no showroom at Calcutta. The conditions on the reverse of Ext. 3 clearly show that the order is subject to the approval of the Principals at Calcutta. If the first defendant has nothing to do with the orders booked by defendants 2 and 3, I cannot understand why he should be so solicitous with regard to the complaint made by the plaintiff against defendants a and 3. I would expect them to simply reply to the plaintiff saying that they had nothing to do with the contract for the purchase of Bedford cars and trucks. In my opinion, the correspondence coupled with the non-production of the terms of contract between the first defendant on the one hand and defendants 2 and 3 on the other which I will notice presently clearly indicates that the first defendant is the principal and second and third defendants are their agents for sale of motor cars and trucks.
8. Mr. L. Mohanty, strenuously contends that no adverse inference can be drawn by the non-production of the contract of agency by the first defendant. In support of his contention he reliesupon a decision of the Privy Council reported in the case of -- 'Mt. Bilas Kunwar v. Desraj Ranjit Singh'-, AIR 1915 PC 96 (A). Their Lordships observed :
' 'These books do not necessarily form any part of the plaintiff's case' (the underlining is mine) (here in ' '); it is, of course, possible that some entries might have appeared therein relating to the bungalow. But it is open to a litigant to refrain from producing any documents that he considers irrelevant and if the other litigant is dissatisfied it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appear to him in such affidavit to be relevant and proper. II he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents. There is no ground for any inference such as is made in the High Court that books if produced would have shown rent credited to Jagmar or set off against some claim against her.'
10. in another case cited by Mr. Mohanty in-- 'Chandra Narayan Deo v. Ramchandra', AIR1946 Pat 66 (B), the principles laid down in AIR1915 PC 96 (A), were followed. in this case itwas held :
'It is open to a litigant to refrain from producing any documents which he considers irrelevant, and that, if the opposing litigant is dissatisfied, it is for him to apply for an affidavitof documents, and he can obtain inspectionand production of all that appear to him insuch affidavit to be relevant and proper. if hefails to do so, neither he, nor the Court at Hissuggestion, is entitled to draw any inference asto the contents of any such documents.'
11. Illustration (g) to Section 114, Evidence Act, says :
'That the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.'
12. in the case of -- 'Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi', AIR 1917 PC 6 (C), Lord Shaw delivering the judgment of the Judicial Committee observes :
'There is a certain body of evidence that the loan was made for the purposes of the math; there is none to the contrary; but a more important question than even the balance of theoral evidence appears to be: What do the books of the math disclose upon the subject? it is the habit of the heads or managers of these institutions to have books kept, and the entries are usually made in much detail and with much elaboration. They form a current record, on the financial side, of the history of the institution.
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of thesuit; but with regard to the parties to thesuit it is, in their Lordships' opinion, an Inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in the case by the first witness that 'the math has regular fair day-books; they are not now before the Court; ledgers are also maintained in the math'. These ledgers and day-boobs were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence. The proposition that these defendants challenged was that the expenses incurred had been incurred for the math and were necessary for its purposes. The best assistance to a Court of justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view the defendants would have brought them into Court. This part of the case, which in their Lordships' view is of considerable importance, is not referred to in the High Court.'
13. The decision read with Section 114, illustration (g) of the Evidence Act induce me to hold that if a party to a case does not produce a document which is the best evidence in support of his contention an inference can be drawn that, if produced, it would be against his contention and that it is only in the case of non-production of Irrelevant documents to the case that such an inference cannot be drawn unless he was asked to produce the document and he fails to do so.
14. in this case D. W. 1 admits in his cross-examination
'There was a written agreement between D.2 and ourselves.... Our agreement with D.2 wasin the first half of the year 1946. We haveceased connection with D.2 by about the middleof 1948..... .We do not send goods to thecustomers of D.2 direct nor do we correspond with them.'
The plaintiff asserts in his plaint that defendants 2 and 3 are their agents- for sate of motor cars and trucks and that he booked the order for Bedford 157 chassis with the agents of the first defendant. in the written statement, the defendant categorically denies that defendants 2 and 3 are their agents. Issue No. 2 is framed in the case and it is to the effect :
'Whether the Ganjam Automobiles Ltd., is an agent with authority to act on behalf of first defendant or whether he is only a sub-dealer?'
The first defendant admits that defendants 2 and 3 are their sub-dealers. It is for the first defendant, in order to substantiate their contention, to produce the agreement of an agency as between themselves and defendants 2 and 3. D. W. 1 admits that there was such an agreement and that it was entered into some time in 1946, and that they ceased to be the sub-dealers in 1948. The suit contract is of 1947. The defendants ought to have produced the only important document the agreement of agency which would have supported their contention and this document isnot produced though D. W. 1 admits of the existence of such an agreement. In accordance with the principles laid down in AIR 1917 PC 6 (C),the learned Munsif is justified in drawing an adverse, inference against the non-production of the agreement of agency. The learned Munsif is right in basing his decision on this non-production.
The decisions in AIR 1915 PC 96 (A) and AIR 1946 Pat 66 (B), do not support the respondents' contention. There the concerned documents which were not produced were documents irrelevant to the case and it was held in those cases that if irrelevant documents which are not material for the purposes of the case are not produced, no adverse inference can be drawn against their non-production unless the party is summoned to produce those documents. Those decisions do not apply to the facts of this case. The facts in this case are clearly covered by the decision of the Judicial Committee in AIR 1917 PC 6 (C).
In the case of -- 'Gangadhar Ayyar v. Subramania Sestrigal', AIR 1949 FC 88 (D), it was held that
'Where the defendants are guilty of suppression of evidence which it was their duty to place before the court, no conclusion in their favour should be arrived at merely on the ground of paucity of evidence which is of their own creation.'
In these circumstances, I am of opinion that the non-production of the agreement of agency coupled with the terms of Ext. 3 and a reasonable reading of Exts. 4 and 6 and a knowledge which the first defendant subsequently had when the plaintiff wrote to him about the payment of the draft in the name of the first defendant leads to the conclusion that the first defendant was the principal and defendants 2 and 3 their agents as far as the sale of Bedford truck is concerned. In the light of all these circumstances, according to the observation made in the case of -- 'Sandanam Pillai v. Somasundaram Chettiar', AIR 1937 Mad 436 (E), that the inference from the non-production of accounts can only be drawn in the light of the other circumstances appearing in the case, I am inclined to hold that the first defendant is the principal and is liable for refund of the money.
15. Mr. Mohanty lastly asks us to remand the case to the trial Court to enable him to produce the contract of agency and adduce evidence regarding the terms of agency. He has not shown us even a copy of the contract nor told us what the exact terms are. We do not think the suit can be remanded at this stage,
16. I would therefore set aside the judgment and decree of the lower appellate Court and restore that of the learned Munsif and decree the suit against all the defendants with costs throughout. The appeal is accordingly allowed with costs throughout.
17. I agree.