Delhi District Court
Munna Kumar vs . Baljinder Singh on 21 April, 2010
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh
IN THE COURT OF SH. RAJ KUMAR : ADMINISTRATIVE CIVIL
JUDGEcum ADDITIONAL RENT CONTROLER : (NORTH)
DELHI.
In Re : Suit No. 1556/2008.
Old Suit No. 1526/2006.
Munna Kumar
S/o Sh. Murari Lal,
Permanent R/o Village Ramnagar,
Bhata Toa, Shiv Mandir,
Post Ramnagar, P.S. Ramnagar,
Distt. Bagha (Bihar)
At present Residing at :
130/5, Railway Colony,
Ajmeri Gate, Delhi. Plaintiff.
Versus.
Baljinder Singh,
Prop. / Partner of M/s Refrigerator Marketing Co.,
7839, Qutab Road, (Old Add. 4,5 Saran Building),
Ram Nagar, Delhi110055. Defendant.
Date of Institution of Suit : 07.12.2006.
Date on which Order was reserved : 13.04.2010.
Date of Pronouncement of Order : 21.04.2010.
JUDGMENT.
The facts in brief, necessary for the disposal of the present suit
for recovery of Rs. 22,400/ alongwith pendentelite and future interest and
Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh
damages of Rs. 30,000/ alongwith pendentelite and future interest as
disclosed by the plaintiff in the plaint, are that plaintiff approached to
purchase fridge measuring 6 feet length from defendant who is engaged in
the business of manufacturing of commercial type refrigeration equipments
etc. It has been further submitted that total cost of the said fridge was struck
at Rs. 28,000/ and towards the booking amount, a sum of Rs. 500/ was
paid by the plaintiff on 19.03.2005 and a sum of Rs. 15,000/ was paid on
11.04.2005 to the defendant and the balance sum was to be paid at the time
of taking of the delivery and to this effect defendant issued a receipt on the
back side of defendant's visiting card mentioning the amount of Rs. 15,500/
to the plaintiff. It has been further submitted that apart from Rs. 15,500/ a
sum of Rs. 700/ was paid towards packaging charges and the defendant
assured the plaintiff to take delivery of said fridge within a week. It has been
alleged further that plaintiff approached the defendant within the aforesaid
period of a week for taking delivery of fridge but the defendant told that the
fridge is not ready and thereafter defendant started dilly dallied the matter
on one pretext or the other but has not given the delivery of the said fridge
till date. It has been stated further that from the day one plaintiff has
suffered huge monetary loss, mental pain, stretch, callous and agony on
account of non supply of said fridge by the defendant as the plaintiff had
placed the order for the fridge for storage of the consumable goods in
summer season because the consumable goods were of perishable nature. It
has been stated further that the plaintiff through his advocate on 18.11.2006
sent a legal notice to the defendant demanding therein the refund of amount
Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh
of Rs. 22,400/ and damages of Rs. 30,000/ from the defendant but no
reply was given by the defendant to the said notice.
It has been prayed that a decree for recovery of Rs. 22,400/ be
passed in favour of the plaintiff and against the defendant alongwith
pendenteelite and future interest @ 24% p.a. till the date of payment in
full. It has also been prayed that a decree for damages of Rs. 30,000/ for
loss of business, sufferings mental paid and agony be passed in favour of
plaintiff and against the defendant alongwith interest @ 24% p.a. pendente
lite and future interest till the date of payment in full. Plaintiff has also
prayed for the costs of the suit.
2. Written Statement has been filed on record by the defendant
taking various preliminary objections therein such as that the plaintiff has
not come to the court with clean hands and that a person cannot be benefited
with his own wrong.
On merits, it has been admitted by the defendant that plaintiff
had paid the advance amount of Rs. 15,000 on 11.04.2005 for
manufacturing of deep freezer. It is submitted that no fixed period of seven
days of delivery of said deep freezer was given to the plaintiff because it
takes minimum 10 to 15 days in manufacturing such type of freezer. It has
been stated further that defendant manufactured the deep freezer of the
plaintiff within the month of April 2005 itself but the plaintiff has not come
to collect the delivery of the same. It has been stated further that plaintiff
came to the show room of the defendant in the month of June, 2005 and
refused to take the delivery of the freezer and started demanding the
Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh
advance amount, which the defendant was not liable to refund because the
freezer of the plaintiff was lying manufactured and the plaintiff was
violating the terms of the contract by refusing to take the delivery of the
freezer. It has been stated further that freezer of the plaintiff is lying ready
since May, 2005 and the delivery of the same can be taken at any time. It
has been stated that no legal notice was ever served upon the defendant.
Rest of the contents of the plaint have been denied by the defendant and it
has been prayed that the suit of the plaintiff be dismissed.
3. Replication has also been filed by the plaintiff, reiterating and
reaffirming the stand taken by the plaintiff in the plaint and denying the
contents of the Written Statement.
4. From the pleadings of the parties, following issues were
framed in the present suit on 16.01.2008 by my Ld. Predecessor :
1.Whether the defendant failed to deliver the fridger to the plaintiff within the agreed time. OPP
2. Whether the plaintiff is entitled to a decree of Rs. 22,400/ against the defendant. OPP.
3. Whether the plaintiff is entitled to any interest against the defendant. If so, at what rate and for what period. OPP.
4. Whether the plaintiff is entitled to a decree for a damages of Rs. 30,000/ against the defendant. OPP.
5. Relief.
5. In support of their respective cases, both the parties have Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh examined one witness each. The detailed testimony of these witnesses shall be discussed in the later part of this judgment.
6. I have carefully gone through the entire material on record and have heard the rival submissions as advanced by both the Ld. counsels for the parties.
My issuewise findings on the various issues framed in the present suit is as under :
ISSUE No. 1 : The onus to prove this issue has been placed upon the plaintiff. The factual controversy in the present suit is withing a narrow compass. The plaintiff has alleged in the plaint that he had placed an order for a commercial fridge with the defendant, who is engaged in the business of manufacturing of commercial type refrigeration equipments, commercial kitchen and food service equipments etc. The plaintiff has stated further that the total cost of the fridge was agreed at Rs. 28,000/ and Rs. 500/ were paid towards the booking amount on 19.03.2005 and a sum of Rs. 15,000/ was paid on 11.04.2005 to the defendant and the balance sum was to be paid at the time of taking of the delivery and to this effect defendant issued a receipt on the back side of defendant's visiting card. It has been further submitted that apart from Rs. 15,500/, a sum of Rs. 700/ was paid towards packaging charges and the defendant assured the plaintiff to take delivery of said fridge within a week. It has been alleged further that plaintiff approached the defendant within the aforesaid period of a week for taking delivery of fridge but the defendant told that the fridge is not ready and Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh thereafter defendant started postponing the matter on one pretext or the other but has not given the delivery of the said fridge till date. It has been stated further that the plaintiff through his advocate on 18.11.2006 sent a legal notice to the defendant demanding therein the refund of amount of Rs.22,400/ and damages of Rs. 30,000/ from the defendant but no reply was given by the defendant to the said notice and hence the present suit.
The defendant has admitted in the Written Statement that an order for delivery of freezer was placed by the plaintiff, who has also paid an amount of Rs. 15,000/ as booking amount. The stand of the defendant is that no fixed period of seven days for delivery of the freezer was given by the defendant because it takes minimum 10 to 15 days in manufacturing such type of freezer. The defendant has taken further the stand that he had manufactured the freezer of the plaintiff within the month of April 2005 itself but the plaintiff had not come to collect the delivery of the same. The defendant has further taken the stand that he never assured the delivery of freezer within a week to the plaintiff. It has been stated further that plaintiff came to the show room of the defendant in the month of June, 2005 and refused to take the delivery of the freezer and started demanding the advance amount, which the defendant was not liable to refund because the freezer of the plaintiff was lying manufactured. It has been stated further that freezer of the plaintiff is lying ready since May, 2005 and the delivery of the same can be taken at any time. Rest of the contents of the plaint have been denied by the defendant and it has been prayed that the suit of the plaintiff be dismissed.
Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh The crux of the controversy in between the parties to the suit in the facts and circumstances is as to whether time was the essence of the contract or not. The plaintiff has pleaded that time was the essence of the contract as the defendant had assured that the freezer shall be ready within seven days from the date of placing of the order. Whereas the defendant has denied the same and has taken the stand that freezer was ready in the month of April 2005 itself. The question is as to whether the plaintiff has been able to prove that time was the essence of the contract in the aforesaid factual matrix.
Now, coming to the evidence part, the plaintiff has examined himself as PW 1 and he has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by him in the plaint and has proved the visiting card of the defendant as Ex. PW 1/A, copy of legal notice as Ex. PW 1/B and the courier receipt as Ex. PW 1/C. In his cross examination PW 1 has denied the suggestion that on 11.04.2005 the defendant had assured the delivery of fridge within 15 days from that day but he never turned back to take the delivery of the fridge. PW 1 has further denied that he had not revisited the defendant after 11.04.2005, because he had arranged some alternate fridge for the season.
PW 1 has denied further that defendant had asked to him to take the delivery of the fridge in the month of May, 2005 but he refused. He has stated further that he does not remember s to how many times, he visited the defendant during the month of May and June 2005 from the date of the booking. By way of volunteer, PW 1 has stated that he visited the defendant Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh 1012 times and the defendant never told him that the fridge was ready for delivery. PW 1 has denied the suggestion that he never visited the defendant during the months of May and June 2005. PW 1 has stated that he had not started doing the business of sweet shop as the fridge was not supplied to him and he started the business of grocery shop. PW 1 has stated further that before placing the order for the fridge, he used to do the job in a sweet shop and he was not carrying the business of his own sweet shop. PW 1 has stated further that he had not told the above said facts regarding opening of the grocery shop and doing the job in a sweet shop at the time of preparation of his affidavit Ex. P1 as well as at the time of filing of the present suit to his advocate. PW 1 has denied the suggestion that he had not taken the delivery of the fridge merely because he was not in need of the same as he had started business of grocery shop.
The defendant has examined himself as DW 1 and he has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by him in the Written Statement. In his cross examination DW 1 has admitted that on 19.03.2005 the plaintiff had paid him Rs. 500/ and that Rs. 15,500/ had been received by him. DW 1 has stated further that freezer was ready for delivery within 10 days from the making of payment of Rs. 15000/ on 11.04.2005. He has denied the suggestion that in the month of June, 2005 plaintiff visited him and requested him for the refund of the amount paid by him. When the witness was confronted with the para no. 5 of his affidavit Ex. DW 1/A from points Mark D1 to D2, after going through the same, the witness / DW 1 affirmed his statement given above in Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh cross examination. DW 1 has taken the stand in the cross examination that he has intimated the plaintiff on telephone regarding the readiness of delivery of freezer. DW 1 has admitted it to be correct that he has not filed any document on record showing that he has made the call to the plaintiff regarding readiness of the delivery of the freezer.
Now, on the basis of the aforesaid factual matrix and the evidence led by the parties, the question is as to whether the plaintiff has been able to prove that time was the essence of the contract. Ld. counsel for the defendant has argued that plaintiff refused to take the delivery of the freezer and the freezer was ready in the month of April, 2005 itself. Whereas the Ld. counsel for the plaintiff has denied the same during the course of arguments.
It has to be seen that as per the provisions of Indian Contact Act, time is not the essence of the contract until and unless it is specifically provided in the contract itself. Now in the case in hand, there is no written agreement and the contract is only oral. The defendant has received Rs.15,500/ and has given the receipt thereof on his visiting card Ex. PW 1/1 but that visiting card does not contain the terms and conditions of the contract which was entered into between the plaintiff and defendant for the delivery of the said freezer.
As such, I am of the opinion that plaintiff has failed to prove that the defendant had to deliver the freezer within seven days w.e.f. 11.04.2005 the fateful day on which the plaintiff gave a sum of Rs. 15,000 to the defendant.
Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh Accordingly, issue no. 1 is decided in favour of the defendant and against the plaintiff.
ISSUE Nos. 2, 3 & 4 : All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the main suit.
The factual matrix and the evidence led by the parties in the present suit has already been narrated herein above under issue no. 1. It has also been held that time was not the essence of the contract but it is also the settled law that if no time has been stipulated in a contract then the contact has to be performed within a reasonable time.
Now, in the case in hand, it is the admitted position by the defendant that Rs. 15,500/ were paid to him by the plaintiff on 11.04.2005. The defendant has taken the stand that freezer was ready in the month of April 2005 but nothing has been proved to substantiate the aforesaid allegation. In the cross examination DW 1 has himself admitted that no document has been filed on record to show that he had given a telephonic call to the plaintiff regarding the readiness and delivery of the freezer. Not even a single letter has been written by the defendant to the plaintiff regarding the readiness and delivery of the freezer. In the cross examination of PW 1, Ld. counsel for the defendant has asked a suggestion to PW 1 that he never visited the defendant during the month of May - June, 2005 whereas the categorical stand of the defendant in the Written Statement is that the plaintiff visited the defendant in the month of June, 2005 and Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh refused to take the delivery of the freezer. As such, the aforesaid stand as taken by the defendant stand falsified.
In the light of the aforesaid discussion, I have no hesitation to hold that the contract of delivery of freezer was to be performed within reasonable time and defendant failed to do the same. As such, I am of the opinion that plaintiff is entitled for the recovery of Rs. 22,400/ from the defendant.
Accordingly, issue no. 2 is decided in favour of the plaintiff and against the defendant.
So far as interest is concerned, in my opinion, it would be sufficient, in these circumstances of the case, if the interest @ 9 % per annum from the date of filing of the suit till the date of realization is granted.
Issue no. 3 is decided accordingly.
So far as issue no. 4 is concerned, the plaintiff has stated that he has suffered huge monetary loss, mental pain, stretch and agony on account of non supply of said fridge by the defendant as the plaintiff had placed the order for the fridge for storage of the consumable goods in summer season because the consumable goods were of perishable nature.
It has to be seen that in the cross examination PW 1 has clearly admitted that he started the business of grocery shop and that before placing the order for freezer he used to do the job in a sweet shop and he was not carrying the business of his own sweet shop. Plaintiff / PW 1 has stated further that he had not told the above said facts regarding opening of the Contd...
Page No. Page numbers Suit No. 1556/2008.
Munna Kumar vs. Baljinder Singh grocery shop and doing the job in a sweet shop at the time of preparation of his affidavit Ex. P1 as well as at the time of filing of the present suit to his advocate.
As such, I am of the opinion that the plaintiff has failed to prove his claim so far as the damages are concerned. Accordingly, issue no.4 is decided in favour of the defendant and against the defendant. Relief : In view of my findings under foregoing issues, the suit of the plaintiff is hereby decreed in favour of the plaintiff and against the defendant for a sum of Rs. 22,400/ alongwith interest @ 9 % per annum from the date of filing of the suit till the date of its realization. So far as the claim of the plaintiff regarding the damages of Rs. 30,000/ is concerned, the same is hereby declined. Costs of the suit are awarded in favour of the plaintiff.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court today on 21st Day of April, 2010.
(RAJ KUMAR) ADMINISTRATIVE CIVIL JUDGE cumADDITIONAL RENT CONTROLLER :
(NORTH) TIS HAZARI COURT: DELHI.
Contd...