Delhi District Court
Major Balwant Singh vs M/S Bedi Roadway on 24 October, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No. 810/2009
Unique ID No. 02401C5838132004
Major Balwant Singh
Propr. M/s Balwant Service Station,
PSP Institutional Area,
Sector-16, Rohini,
Delhi-85
...... Plaintiff
Versus
1. M/s Bedi Roadway,
Through Its Propr. Sh.G.G.Bedi,
CW-611, Sanjay Gandhi Transport Nagar,
Delhi-42
2. Sh.G.G.Bedi
M/s Bedi Roadway,
GW-611, Sanjay Gandhi Transport Nagar,
Delhi-42
...... Defendants
Date of institution of suit : 29.10.2004
Date on which reserved for judgment : 29.09.2011
Date of Judgment : 24.10.2011
JUDGMENT:
1. This is a suit for recovery.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
2.1. The Plaintiff is the sole proprietor of M/s Balwant Service Station involved in the sale of petrol/diesel at CW-611, Sanjay Gandhi Transport Nagar, Delhi-42.
2.2 The Defendant no.1 through its proprietor i.e. Defendant no.2 Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 1 of 9 used to purchase diesel from the Plaintiff on credit and a running account was maintained by the Plaintiff in this respect. The Defendant did not make the payment against the following vouchers:
S. no. Voucher Dated Amount (Rs.)
1 1288 09/03/02 9954
2 1287 09/03/02 10368.75
3 1291 14.3.2002 10683.96
4 1294 15.3.2002 10700.55
5 1295 15.3.2002 9954
6 1102 20.3.2002 10584.42
7 1105 25.3.2002 9954
8 1121 01/04/02 9954
9 1124 04/04/02 9954
10 1130 05/04/02 11148.48
11 1133 08/04/02 9954
12 1139 10/04/02 9124.05
13 1144 15.4.2002 10236.03
14 1160 21.4.2002 9954
15 1163 26.4.2002 7465.55
16 1166 06/05/02 10783.05
17 1171 07/05/02 7465.05
18 1170 07/05/02 7465.05
19 1108 25.3.2002 2488
20 1173 11/05/02 9954
21 1191 13.7.2002 8203.05
22 1300 13.8.2003 9000
23 1299 13.8.2003 9000
24 1429 19.8.2003 8000
2.3. Hence, an amount of Rs.2,22,347.99 is due against the Defendant. The Plaintiff made several requests to the Defendant to clear the dues but in vain. The Plaintiff also issued a legal notice dated Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 2 of 9 27.8.2004 to the Defendant calling upon it to pay the same but in vain. Hence, the present suit for recovery.
3. Summons of the suit were served upon the Defendant. The WS has been filed. The facts as per the Defendant are as follows:
3.1. It is stated that the suit has been wrongly instituted in the name of Sh.G.G.Bedi while the name of Defendant no.2 is actually Sh.A.K.Bedi.
Further, there is no such firm by the name of M/s Bedi Roadways i.e. Defendant no.1.
3.2. It is admitted that the answering Defendant i.e. Sh.A.K.Bedi used to purchase diesel from the Plaintiff. However, the same was never on credit and cash was paid. Receipts were issued to the driver of the concerned vehicle who used to take the slip to the Plaintiff's pump. The diesel was filled in the vehicle and the slip was handed over to the Plaintiff. The driver would pay the amount of the last trip bill/slip. In this manner, a cycle was formed wherein, the driver of the particular vehicle was taking the diesel for the trip and was making the payment of the earlier trip. This arrangement was between the owner of the pump and the driver and had no concern with the Defendant. Hence, as per this arrangement, all the bills of the Plaintiff have been duly paid. Hence, it is prayed that the suit of the Plaintiff be dismissed.
4. Replication was filed by the Plaintiff wherein, the Plaintiff reiterated the facts as alleged in the plaint and denied those alleged by the Defendants. On the basis of the pleadings of the parties following issues were framed vide order dated 12.5.2005:
1. Whether the Plaintiff is entitled to suit amount, with interest. If so, at what rate?OPP
2. Relief Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 3 of 9
5. Thereafter, the matter was fixed for Plaintiff's evidence. The Plaintiff got examined one witness namely Major Balwant Singh as PW1 and exhibited the following document:
Ex.PW1/1A Voucher no.1287 dated 09.3.02 Ex.PW1/1B Cash memo no.10457 dated 09.3.02 Ex.PW1/2A Voucher no.1288 dated 09.3.02 Ex.PW1/2B Cash memo no.10458 dated 09.3.02 Ex.PW1/3A Voucher no.1291 dated 14.3.02 Ex.PW1/3B Cash memo no.10497 dated 14.3.02 Ex.PW1/4A Voucher no.1294 dated 15.3.02 Ex.PW1/4B Cash memo no.10516 Ex.PW1/5A Voucher no.1295 dated 15.3.02 Ex.PW1/5B Cash memo no.10513 Ex.PW1/6A Voucher no.1105 dated 25.3.02 Ex.PW1/6B Cash memo no.10623 Ex.PW1/7A Voucher no.1108 dated 25.3.02 Ex.PW1/7B Cash memo no.10627 Ex.PW1/8A Voucher no.1121 dated 01.4.02 Ex.PW1/8B Cash memo no.10660 Ex.PW1/9A Voucher no.1124 dated 04.4.02 Ex.PW1/9B Cash memo no.10676 Ex.PW1/10A Voucher no.1130 dated 05.4.02 Ex.PW1/10B Cash memo no.10683 Ex.PW1/11A Voucher no.1133 dated 08.4.02 Ex.PW1/11B Cash memo no.10700 Ex.PW1/12A Voucher no.1139 dated 10.4.02 Ex.PW1/12B Cash memo no.10720 Ex.PW1/13A Voucher no.1144 dated 15.4.02 Ex.PW1/13B Cash memo no.10750 Ex.PW1/14A Voucher no.1160 dated 21.4.02 Ex.PW1/14B Cash memo no.10787 Ex.PW1/15A Voucher no.1163 dated 26.4.02 Ex.PW1/15B Cash memo no.11220 Ex.PW1/16A Voucher no.1166 dated 06.5.02 Ex.PW1/16B Cash memo no.11262 Ex.PW1/17A Voucher no.1171 dated 07.5.02 Ex.PW1/17B Cash memo no.11268 Ex.PW1/18A Voucher no.1170 dated 07.5.02 Ex.PW1/18B Cash memo no.11266 Ex.PW1/19A Voucher no.1173 dated 11.5.02 Ex.PW1/19B Cash memo no.11291 Ex.PW1/20A Voucher no.1191 dated 13.7.02 Ex.PW1/20B Cash memo no.13650 Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 4 of 9 Ex.PW1/21A Indent form no.1299 dated 13.8.03 Ex.PW1/22A Indent form no.1300 dated 13.8.03 Ex.PW1/23A Indent form no.1429 dated 19.8.03 Ex.PW1/24A Voucher no.1102 dated 20.3.02 Ex.PW1/24B Cash memo no.10580 Ex.PW1/26 Registered AD/UPC Ex.PW1/27 Acknowledgment receipt Ex.PW1/28 Acknowledgment receipt Ex.PW1/29 Receipt no.1773 Ex.PW1/30 Receipt no.1774 Note: There is no Ex.PW1/25A on record as mentioned in the affidavit.
6. Then the matter was fixed for Defendant's evidence. The Defendant got examined Sh.A.K.Bedi as DW1 but did not exhibit any document.
7. Thereafter, the matter was fixed for final arguments. I have heard the arguments of both the parties. My issue wise findings are as follows.
Issue no.1 Whether the Plaintiff is entitled to suit amount, with interest. If so, at what rate?OPP
8. Onus to prove this issue was upon the Plaintiff.
9. In the present case, it is an admitted fact that the Defendant no.2 used to purchase the diesel from the Plaintiff. It is the case of the Plaintiff that the Defendant no.2 did not pay the price of diesel on several occasions due to which the suit amount has accumulated. The Plaintiff has relied upon the the various vouchers which were issued by Defendant no.2 in favour of the Plaintiff for purchasing of the diesel and the cash Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 5 of 9 memos issued by the Plaintiff in lieu of the supplying of diesel to the Defendant no.2 which are Ex.PW1/1A to Ex.PW1/24B. The Defendant no.2 has admitted that the vouchers were issued to the Plaintiff for supplying diesel and the cash memos were issued by the Plaintiff. It is the case of the Plaintiff that the Defendant no.2 did not pay the price towards these vouchers.
10. The Defendant has alleged that every time diesel was required, the Defendant used to send his concerned driver to the Plaintiff to get the tank filled. He would get the tank filled and would pay the price of the diesel purchased on the last visit. However, it is admitted that the Defendant does not have any receipt of the cash paid. The Plaintiff has submitted that on the occasions which are the subject matter of the present suit, no payments were received from the Defendant. The Defendant has also not led any evidence to show that the payments were actually made.
11. However, in the present matter, the Plaintiff and the Defendant are at a consensuses regarding the cycle of transactions which were taking place between the parties, which is very relevant. It is admitted that the Defendant used to send the driver to the Plaintiff for getting tank of the vehicle filled. The payment of that diesel was made on the next visit of the Defendant's driver meaning thereby, the diesel was sold on credit for one occasion. The payment was made on the next visit and fresh diesel was sold, whose payment was made on the subsequent visit and so on. The Plaintiff has admitted this cycle of transactions which were being made between the parties, in his cross examination.
12. However, in the Plaintiff's cross examination, he has further admitted that "It is also correct that the driver as paid the amount of the Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 6 of 9 last bill and accordingly the driver by making the payment of the last trip, was taking the diesel for the trip on which the slip was issued. It is also correct that in this way the cycle was being formed. I have refused the driver of the concerned vehicle that the diesel shall not be given to him unless and until the payment of the previous voucher are being paid by the Defendants to me." It must be noted that the Plaintiff has very clearly deposed that unless the payment of the previous voucher was not being made, he would not give the diesel to the driver. This is a very important admission. The Plaintiff has not explained as to if this cycle and procedure were being followed, then how come the payments on the 24 occasions as elaborated in the plaint were not made or were not pressed upon by him. He has nowhere stated that for these periods the cycle was not followed or some other terms existed between the parties.
13. Further, as the counsel for Defendant has rightly pointed out, there is a gap of more than 1 year between the 21st voucher i.e. Ex.PW1/20A & Ex.PW1/20B and the next voucher Ex.PW1/21 dated 13.7.2002 and 13.8.2003 respectively. It is hard to believe that the Plaintiff sold the diesel on 21 occasions to the Defendant in the year 2002 without pressing upon the payment on all these occasions. Then, the diesel was sold and payments were being made for one year and then again, the diesel was sold on credit. It is an admitted fact that the transactions were being made continuously. The Plaintiff has not explained sufficiently this gap of 1 year. It is simply stated that it is prerogative of the Plaintiff as to when to demand the money. However, the story does not corroborate with the facts of the case.
14. The Plaintiff made no attempt to adjust the payments which were being till August 2003 towards the dues which were pending since March 2002. This is highly improbable. In a usual course of business, Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 7 of 9 when goods are sold on credit, the payments received are adjusted towards the dues of the earlier sales. It is highly improbable that the credit was given, then sales were made on cash and then again credit was given. Moreover, coupled with the admission of the Plaintiff that the diesel was refused unless the payment of the last trip was made, the story of the Plaintiff is defeated. In the opinion of the court, as per the cycle between the parties, the diesel was sold and the payments were made. However, the vouchers and the cash memos remained in the possession of the Plaintiff which are being misused now. Hence, the Plaintiff is not entitled to any relief.
15. In the present case, the Defendant no.2 has denied to have any connection with the Defendant no.1. However, he has admitted to have issued the vouchers filed on record by the Plaintiff which are on the letter pad of the Defendant no.1. In these circumstances, the claim of the Defendant is ill-founded.
16. Further, the suit has been instituted against the Defendant no.2 in the name of Sh.G.G.Bedi. The Written Statement filed is on behalf of Sh.A.K.Bedi. Perusal of signatures of Sh.A.K.Bedi shows that they are readable as "G.G.Bedi". However, the Defendant no.2 had admitted that he was the relevant person. Despite this, the Plaintiff made no effort to get the memo of parties corrected. The suit is still pending against the wrong person. The same is corrected today.
In view of the above discussion, this issue is decided against the Plaintiff.
Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 8 of 9Relief In view of the above discussion, the suit of the Plaintiff is dismissed.
No order as to costs.
Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA] Today on 24.10.2011 CIVIL JUDGE-01 (NORTH) DELHI Certified that this judgment contains 09 number of pages and all pages are signed by me.
[RUCHIKA SINGLA]
CIVIL JUDGE-01 (NORTH)
DELHI
Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 9 of 9
Suit No.810/09
24.10.2011
Present : None for Plaintiff
Counsel for Defendant
Vide separate judgment of even date, the suit of Plaintiff stands dismissed.
No orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
[RUCHIKA SINGLA] CIVIL JUDGE01 (NORTH) DELHI Major Balwant Singh v. M/s Bedi Roadway Suit No.810/2009 Page 10 of 9