Delhi District Court
M/S Kelson Steel Product Pvt. Ltd vs M/S P.R.Packaging Ltd on 23 July, 2013
IN THE COURT OF SH. ACHAL TYAGI, CIVIL JUDGE:
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Suit no.138/10
Unique case ID no. : 02402C0 46232009
M/s Kelson Steel Product Pvt. Ltd.
22, Radhey Puri ExtensionII,
Near Main Jagatpuri Chowk,
Delhi 110051. ........Plaintiff
Versus
M/s P.R.Packaging Ltd.
SehrolaRoad, Near Bani Mandir,
Village Pirthla, Palwal,
Faridabad, Haryana121102. ........ Defendant
Date of institution : 11.02.09
Date on which reserved for judgment : 06.07.13
Date of pronouncement of judgment : 23.07.13
JUDGMENT:
1. Vide this judgment, I shall dispose of the present suit for recovery of Rs.1,15,650/ filed by the plaintiff against the defendant along with interest.
CS No. 138/10 Page no. 1 of 17
2. Brief facts of the case relevant for adjudication of present dispute are as follows. That the plaintiff is a private limited company duly incorporated under the Companies Act having its office at 22 Radhey Puri, ExtensionII, Delhi 51. It has been stated that the present suit is filed by its managing Director, Sh. K.P. Singh who is duly authorized by board of resolution of the plaintiff dated 01.05.2008. That the plaintiff company is dealing in the manufacture and exports of steel products and furniture. That the defendant through its Managing Director Sh. R.K. Gupta approached the plaintiff at its office for the supply and erection of palletized racking system along with fitting and furnishings as per the details specified in the purchase order dated 06.09.2006. That the said work was completed within time by the plaintiff to the satisfaction of the defendant. It has been stated that the work was regularly monitored and inspected by the defendant and bills in respect of the work done and material supplied by plaintiff were raised from time to time and were verified by the defendant. It has been stated that the despite completion of work, the plaintiff has not received the complete payment in respect of the work done despite repeated assurances by the defendant. It has been stated that as per the accounts of the plaintiff an amount of Rs.1,28,016/ is still outstanding against the defendant. That the defendant company has illegally CS No. 138/10 Page no. 2 of 17 confirmed only an amount of Rs. 23,930/ as the outstanding amount towards the plaintiff. That the defendant has wrongly raised debit notes of Rs. 34,160/, 20,318/ and 49,608/ against the plaintiff. That the plaintiff sent a legal notice dated 08.03.2007 to the defendant for the release of outstanding amount however, no payment has been made by the defendant despite the receipt of the said legal notice.
3. The plaintiff has accordingly filed the present suit against the defendant praying for a decree for a sum of Rs. 1,15, 650/ along with interest @ 21/% per annum from the date of final bill. The plaintiff has also prayed for costs of the present suit.
4. The defendant has filed his WS and has taken the preliminary objection that the present suit of plaintiff is not maintainable as this court does not have the territorial jurisdiction to entertain the present suit. It has been stated that the contract between the parties was not entered into at Delhi and accordingly this court has no jurisdiction. It has also been stated that suit of the plaintiff has been filed by suppressing the material facts from this court.
5. The defendant has stated that on 22.4.2006 the director of the CS No. 138/10 Page no. 3 of 17 plaintiff company had visited the defendant at their office at plot no. 12, Sector 4 Faridabad and had submitted the proposal for supply of steel products along with layout plan. That a purchase order was accordingly placed by the defendant on 06.9.2006 and the said purchase order was received personally by Shri K.P. Singh (Director of the plaintiff company) from the office of the defendant at Faridabad. It has been stated that as per the purchase order, the plaintiff erected the racking system at the site of the defendant. It has been stated that the racking system was of inferior quality and was not as per sample and specification. That the defendant company vide email dated 12.10.2006 and also by the letter of the same date informed the plaintiff that the rack erected by the plaintiff had fallen and asked the plaintiff to depute their representative to access the loss. That the representative of the plaintiff company visited the office of the defendant and admitted the fact that the fall of the rack was due to technical problem and the minutes of the said meeting were also signed by them. It has also been stated that the rate charged by the plaintiff was of powder coated racks whereas the racks supplied were painted racks and the said issue was brought to the knowledge of the plaintiff which was admitted by the plaintiff company. It has been submitted by the defendant that the material supplied by the plaintiff CS No. 138/10 Page no. 4 of 17 does not match with the specification and accordingly the defendant company raised debit notes for an amount of Rs. 34,160/, Rs. 20,318/ and Rs. 49,608/. It has been stated that only an amount of Rs. 23,930/ is due towards the plaintiff and the same has been informed to the plaintiff. The defendant has denied the other averments made by the plaintiff in his plaint and has prayed for dismissal of the present suit.
6. The plaintiff has filed his replication and denied the averments made in the written statement by the defendant while reiterating the averments made in the plaint.
7. After hearing ld. counsels of both the parties and perusing the record, the following issues were framed on 01.02.2011:
1) Whether the plaintiff is entitled to recovery of Rs. 1,28,016/ as prayed for ? OPP
2) Whether the plaintiff is entitled to pendelite and future interest as prayed? OPP
3) Whether the present suit of the plaintiff is not maintenance for suppression of material facts? OPD
4)Whether the present suit of the plaintiff is not maintainable CS No. 138/10 Page no. 5 of 17 for want of cause of action?OPD
5)Whether this court has the jurisdiction to entertain and try the present suit?OPD ( this issue was framed on 28.09.2010)
6) Whether the job work done by the plaintiff was of inferior quality?OPD (this issue was framed on 01.12.2011)
6) Relief, if any.
8. The matter then proceeded for plaintiff's evidence. The plaintiff filed the evidence affidavit of one Divya Singh as PW1. The plaintiff however despite repeated opportunities by this court on 23.01.2012, 01.03.2012, 20.3.2012, 20.4.2012, 24.5.2012, 09.8.2012, 05.10.2012 and 22.12.2012 did not lead his evidence. Accordingly the right of the plaintiff to lead his evidence was closed on 22.12.2012. Thereafter the matter proceeded for defence evidence. The defendant examined one Joginder Gumbhir as DW1. DW1 tendered his evidence affidavit as Ex. DW1/A. In his testimony DW1 relied upon following documents:
Ex. DW1/1 Resolution of defendant company
authorizing the witness dated
18.3.2010
Ex. DW1/2 (colly) Copies of email dated 12.10.2006
along with photographs.
CS No. 138/10 Page no. 6 of 17
Ex. DW1/3 Copy of letter dated 12.10.2006
Ex. DW1/4 Copy of minutes of meeting dated
13.10.2006
Ex. DW1/5 and Ex. DW1/6 Copy of letter dated 02.11.2006
sent by plaintiff along with
carriage receipts.
Ex. DW1/7 to Ex. DW1/9 Copies of letter dated 09.01.2007
and 30.1.2007 alongwith debit
notes raised by defendant.
Ex. DW1/10 & Ex. DW1/11 Copy of letter dated 19.01.2007
issued by plaintiff company and
copies of invoices.
9. The defendant also examined one Virender Singh as DW2. DW2 filed his evidence affidavit as DW2/A and relied upon the said documents as relied upon by the DW1. Thereafter the matter proceeded for final arguments.
10. I have heard the final arguments on behalf of the defendant and carefully perused the record and my issue wise findings are as follows.
I shall first deal with issue no. 5.
11. Issue no. 5:
Whether this court has the jurisdiction to entertain and try the present suit?OPP CS No. 138/10 Page no. 7 of 17 The onus to prove this issue rests on the plaintiff. The defendant in the present case has taken the plea that this court does not have the territorial jurisdiction to entertain the present suit. It has been stated by the defendant that no part of the cause of action has arisen within the jurisdiction of this court and accordingly this court cannot try the present suit. The defendant has relied on section 20 of the CPC to substantiate its averment. It is pertinent to note that the present issue was earlier framed as a preliminary issue by the court on 28.9.2010. The court vide its order dated 12.01.2011 held that this issue cannot be decided at preliminary stage as it is a mixed question of law and fact and therefore it would be decided at the end of the trial when the evidence has been led by both the parties.
12. It is important to note that as per section 20 of the Civil Procedure Code, the suit can be instituted either in the court where the defendant actually and voluntarily resides or personally works for gain or carries on business. A suit can also be instituted at a place where the cause of action wholly or in part arises. In the present case, the defendant is residing at Faridabad and also carries on his business from Faridabad. In such circumstances, the present suit can be filed at Delhi only if any part of the cause of the action has wholly or in part CS No. 138/10 Page no. 8 of 17 arisen within the territorial jurisdiction of this court. The plaintiff in his plaint has stated that the defendant had approached the plaintiff at its office address at Delhi and the purchase order was also placed by the defendant at the office of the plaintiff. The plaintiff has sought to bring the suit within the jurisdiction of this court on this basis. The defendant on the other hand has stated that it was the plaintiff who had approached the defendant at his office at Faridabad and the purchase order was also placed at Faridabad. It would, therefore, be relevant to see if the defendant has been able to substantiate the said averment. The defendant in the present case has stated in his written statement that the plaintiff had approached him in his office at Faridabad. The defendant has also examined one Joginder Gumbhir the Accounts Manager of the Defendant company as DW1. The said witness has stated in his testimony that the Director of the plaintiff company Shri K.P. Singh had visited the office of the defendant on 22.4.2006 and submitted his proposal. It has also been stated that on 06.9.2006 the purchase order placed by the defendant was personally received by said Shri K.P. Singh in the office of the defendant at Faridabad. The defendant has also examined one Virender Singh the Purchase Officer of the defendant company as DW2. The said witness has stated in his testimony that the Director of the plaintiff company Shri K.P. Singh CS No. 138/10 Page no. 9 of 17 had visited the office of the defendant on 22.4.2006 and submitted his proposal. It has also been stated that on 06.9.2006 the purchase order placed by the defendant was personally received by said Shri K.P. Singh in the office of the defendant at Faridabad. The said witnesses were not examined by the plaintiff despite opportunities by this court and accordingly the averments of the defendant in this regard have remained unchallenged.
13. It is also important to note that the work of erection of palletize racking system was carried out by the plaintiff at the office of the defendant i.e. Plot no. 12, sector 4, Faridabad. It is thus evident that no part of the cause of action has arisen within the territorial jurisdiction of this court. The plaintiff in the present case has not tendered himself for crossexamination and accordingly the averments of the plaintiff have remained uncorroborated and unsubstantiated. In this regard I may also place reliance on Ravindra Lalbachan Tiwari And vs Smt. Nirmaladevi Vijaynarayan reported as 1997 (4) BomCR 75 wherein the court quoting from Lalita James v. Ajit Kumar, has observed as under :
"It is well settled rule of law that burden of proving his case to obtain a decree from the Court is always on the plaintiff who must adduce reliable and admissible CS No. 138/10 Page no. 10 of 17 evidence for the said purpose. Section 102 of the Evidence Act contains the broad rule in this behalf and, therefore, provides the legal guidelines in the matter. As a necessary corollary to the aforesaid rule is the rule that the plaintiff must succeed on the strength of his own title and not be sustained by any weakness in the case of defendant."
14. In the present case the plaintiff has not been able to substantiate his averments in respect of the cause of action against the defendant as the plaintiff has not led any evidence in this regard. In such circumstances I am of the view that the plaintiff has not been able to discharge the burden put on him.
This issue is accordingly decided in favour of the defendant and against the plaintiff.
15. Issue no . 1:
Whether the plaintiff is entitled to recovery of Rs. 1,28,016/ as prayed for ? OPP The plaintiff in the present case has claimed an amount of Rs. 1,28, 016/ from the defendant stating that the defendant has not paid the plaintiff for the work that has been done by the plaintiff at the premises of the defendant. The plaintiff however, has not tendered himself for crossexamination. In the present case, the plaintiff has not CS No. 138/10 Page no. 11 of 17 been able to prove any of his averments as mentioned in the plaint as the plaintiff has not tendered himself for crossexamination. In such circumstances, I am of the view that the plaintiff has not been able to prove his case against the defendant. Reliance in this regard can be placed on Vidhya Dhar V Manik Rao And Another reported as 1999 3 SCC 573 wherin the court has observed :
"16. "Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him.
CS No. 138/10 Page no. 12 of 17 Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
16. Reliance in this regard can also be placed on Man Kaur V Hartar Singh Sangha reported as 2010(10) SCC 512 which is to the same effect. In such circumstances I am of the view that the plaintiff has not been able to prove his case against the defendant and accordingly the plaintiff cannot recover any amount from the defendant.
This issue is accordingly decided in favour of the defendant and against the plaintiff.
17. Issue no. 2:
Whether the plaintiff is entitled to pendelite and future interest as prayed? OPP The onus to prove this issue rests on the plaintiff. In view of the findings arrived at in issue no.1, the question of awarding pendentilite and future interest does not arise as the defendant is under no liability to pay any amount whatsoever to the plaintiff.
CS No. 138/10 Page no. 13 of 17 This issue is accordingly decided in the favour of the defendant and against the plaintiff.
18. Issue no.3:
Whether the present suit of the plaintiff is not maintenance for suppression of material facts? OPD The onus to prove this issue rests on the defendant. The defendant in the present case has not been able to bring on record anything which shows that facts material to the present case have been suppressed by the plaintiff. The fact that the plaintiff has not been able to prove this case does not imply that the averments of the plaintiff are false and fabricated. In such circumstances, I am of the view that the plaintiff is not guilty of suppression of material facts.
This issue is accordingly decided in the favour of the plaintiff and against the defendant.
19. Issue no. 4:
Whether the present suit of the plaintiff is not maintainable for want of cause of action?OPD The onus to prove this issue rests on the defendant. The defendant has not been able to bring on record anything CS No. 138/10 Page no. 14 of 17 which shows that the plaintiff has no cause of action to file the present suit. The plaintiff has filed the present suit stating that he has not been paid for the services rendered by him to the defendant. There is no dispute about the fact that the plaintiff in the present case has rendered the services to the defendant. The dispute between the parties is related to the quality of work done by the plaintiff. In such circumstances, I am of the view that the plaintiff is entitled to maintain the present suit against the defendant.
This issue is accordingly decided in the favour of the plaintiff and against the defendant.
20. Issue no.6:
Whether the job work done by the plaintiff was of inferior quality?OPD (this issue was framed on 01.12.2011) Thus onus to prove this issue rests on the defendant. The defendant in the present case stated that the work done by the plaintiff was not satisfactory. The witness DW1 and DW2 have stated in their testimony that the material supplied by the plaintiff company was not up to the quality. It has also been stated the material supplied by the plaintiff company was of inferior quality and it was not as per sample and specification. The defendant has accordingly stated CS No. 138/10 Page no. 15 of 17 that the debit notes were issued by the defendant and after the reconciliation of the accounts only an amount of Rs. 23930/ is due towards the plaintiff. The defendant to substantiate his averments has examined Joginder Gumbhir as DW1 and Virender Singh as DW2. The defendant has also filed on record the letters sent by the defendant to the plaintiff making complaint about the deficiency of service which are Ex. DW1/2 and 3. The defendant has also filed on record the minutes of the meeting dated 13.10.2006 wherein, the representatives of the plaintiff have admitted the mistakes/ shortcomings of the plaintiff in executing the work order and the same is Ex. DW1/4. The defendant has also filed the debit notes issued by the defendant which are shown as Ex. DW1/9. The defendant has also filed on record the receipts wherein the difference in the weight of the material supplied to the defendant has been shown. The said documents are shown as Ex. DW1/11. In the facts and circumstances of the case, I am of the view that the plaintiff has not been able to provide any satisfactory service to the defendant and the documents filed on record clearly prove the said facts.
In the light of such facts and circumstances of the case, I am of the view that the defendant has been able to prove that the work done by the plaintiff at the premises of the defendant was of inferior quality.
CS No. 138/10 Page no. 16 of 17 This issue is accordingly decided in the favour of the defendant and against the plaintiff.
21: Relief :
In the light of aforementioned facts and circumstances of the case, I hold that the plaintiff has not been able to prove his case against the defendant. The plaintiff accordingly is not entitled to recover the amount of Rs. 1,28,016/ as claimed or any amount whatsoever from the defendant. I may mention here that the defendant has admitted the liability of Rs 23,930/ towards the plaintiff. The said amount however cannot be decreed in favour of the plaintiff as this court does not have the territorial jurisdiction to try and entertain the present suit. The suit of the plaintiff is accordingly disposed of as dismissed.
Let the decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Announced in the open (ACHAL TYAGI)
Court on 23.07.2013 Civil Judge/East
KKD Courts, Delhi
CS No. 138/10 Page no. 17 of 17