In Shri Birendra Chandra Biswas vs Sri Ratan Chandra Dhar, a two-judge bench of the Tripura High Court decided on the nature and degree of evidence required to uphold an oral agreement which is not prima facie supported by string evidence
Facts of the Case
In August 2009, the defendant approached the plaintiff, a brick kiln owner, with an offer to share some contract works it had received from the public works department to which the plaintiff assented and undertook to share the profit and loss of the contract works by supplying bricks required for the work. A few days later, the plaintiff learnt that the contract was not valid and thus abandoned the agreement with the defendant. ₹3,00,000 was paid by the defendant to the plaintiff in pursuance to the bricks delivered under the written agreement which later was cancelled.
According to the plaintiff, delivery of bricks were made under an oral agreement subsequent to the cancellation of the written agreement and claims there are more amount due from the defendant. The defendant has not paid this due amount and hence has committed a breach of contract. The civil judge dismissed the suit by the plaintiff on the ground that even if an oral contract is taken to exist the conditions of that contract are yet to be fulfilled and time has not expired for action against the defendant and the existence of an oral contract has not been proved by the plaintiff.
The Appellant who is the plaintiff in the original suit argued that the inference drawn on the oral contract is based on a misreading of the evidence. In an order by the Civil judge, the challans in carbon copy were not admitted as evidence since the plaintiff failed to prove that the original challans were in the custody of the defendant. This order was challenged and the set aside allowing the plaintiff to prove a contract. Further, the challans and cash memo of manufacture companies were accepted in evidence, while delivery challans were also accepted. The trial judge observed that the carbon copy can be taken as primary evidence. However, the civil judge did not rely on this evidence on the reason that agreement has not been proved and register to prove supply to the defendant has not been produced. Appellant contends that such rejection is grossly impermissible in law, and the reasons by the civil judge are visited by non-appreciation of evidence. Therefore urged the court to consider the evidence and reverse the civil judge’s finding.
The Respondents argued that the plaintiff has completely claimed relief on the basis of an oral agreement but has not stated the time or in whose presence such a contract was formed. A distinction has to be made between oral contract and sale simpliciter. The defendant has stated that the sale did take place much before the purported oral agreement. Contended that those challans are all “manufactured‟ and that is the reason why the register of delivery by the plaintiff has been produced in the trial.
Court’s Observation and Decision
On perusal of the evidence and the arguments the court framed two issues: 1) Whether there is any legal proof that after “abandonment” or “cancellation” of the contract in writing the parties entered into an oral agreement 2) Whether the civil judge has committed any error in appreciating the challans issued by the Brick Industry.
There is indeed no specific pleading in the plaint how the oral agreement was formed or whether any person was present there. No documentary evidence except those challans have been produced, despite acknowledgement of the fact that there was sale register and register of delivery by the vehicles were maintained by the plaintiff‟s brick kiln, the said registers were not produced in the trial. The sale register is the primary evidence of sale nor the challans. If any delivery is made on credit either there shall be a credit note or it shall be reflected in the sale-register. With respect to the truth of the delivery challans, it was observed that the delivery challan is the document preserved by the supplier, and as such, the original copy was supposed to be retained by the plaintiff. However, the plaintiff has endeavoured to prove that in his brick kiln, the original delivery challan is handed over to the recipient. Such a statement is really hard to believe.
There is no strong evidence proving the existence of such a contract, the burden of proof is heavily on the plaintiff and the party has failed to discharge the burden. Therefore, the court held that there was no evidence of the formation of an oral contract. The appeal was dismissed.
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