Delhi District Court
Through Its Proprietor vs Institute Of Technology And Management on 26 November, 2013
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL. DISTRICT
JUDGE CENTRAL-09, TIS HAZARI COURTS, DELHI
CS N0. 382/09.
UID No. 02401C0532872007.
M/s. Technip Books International
4/12, Kalkaji Extension
Opposite Nehru Place
Kalkaji, New Delhi-110019
Through its proprietor
AK Parwanda (HUF)
Represented through its present Karta
Sh. Gaurav Kumar Parwanda
S/o. Late Sh. Ashok Kumar Parwanda.
........... Plaintiff
Versus
1. Institute of Technology and Management
Managed by Samata Lok Sansthan Trust
Guru Kripa, ITM Campus
Opposite Sithouli Railway Station
Jhansi Road, Gwalior-475001
......... Defendant
2. All India Council of Technical Education (AICTE)
Indra Gandhi Sports Complex, I. P. Estate
New Delhi-110002.
Service to be effected through Member/
Secretary/Principal Officer/Authorized
representative.
.........Proforma Defendant
Date of institution of suit : 23.05.2007.
Date of reserving for judgment : 11.11.2013.
Date of judgment : 26.11.2013.
CS No. 382/09
M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 1
JUDGMENT
1. This is suit for recovery of Rs. 9,36,017/- filed by the plaintiff.
2. Brief facts of the case are :
a) Plaintiff is an importer, distributor and publishers of engineering & technology books on different subjects/fields and is also selling and distributing the same to its various customers all over India.
b) Defendant no. 1 is an institute, is affiliated to Rajiv Gandhi Proudyogiki Vishwavidyalaya, Bhopal, M.P. and duly approved by defendant no. 2. Defendant no. 2 controlled by Ministry of HRD, Govt. of India and controls academic courses conducted by defendant no. 1 and has granted approval to all the courses run by defendant in their institutes.
c) The plaintiff having long term business relationship and association with the defendant by supplying various books in engineering and technology which were used by the defendants in its library for the benefits of the students. Most of the books published by the plaintiff, are for the advanced and higher studies of the students in the defendant's institute and hence the defendant used to show lot of interest in knowing and placing the orders for new publications on various subjects.
d) Plaintiff has supplied various books on the recommendation and order placed by the defendant on 09/08/2002, 24/12/2003 and 22/07/2004 on phone from library/concerned department. The supply of all these books were duly approved and the list of the books was prepared by the plaintiff and acknowledged by the defendant.
e) The plaintiff has raised 17 invoices towards the supplies of CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 2 the books from 01/08/2002 to 17/08/2004. All the invoices except invoice no. 3357, 3358, 3403 and 3420 have been duly acknowledged by the defendant.
f) Defendant had always been admitted certain payments.
Defendant had even prepared a voucher for payment of Rs. 2,74,308/- but did not make the payment.
g) Plaintiff had issued a letter dated 12/05/2004 requesting for payment of Rs. 3,76,867/-, after giving a special discount on the request. After receipt of the letter, the defendant had clearly admitted that the payment would be arranged during second week of August, 2004. The admission of Rs. 3,76,867/- was against the invoices raised by the plaintiff except four invoices bearing no. 3357, 3358, 3403 and 3420. The defendant has failed to make the payment in August, 2004. The plaintiff is entitled to receive the entire amount of Rs. 3,86,071/-.
h) The plaintiff had supplied the books pertaining to invoices no. 3357, 3358, 3403 and 3420 to the librarian Ms. Sheetal Tomar. The books were accepted by the librarian with the recommendations of concerned faculty and invoices and books were retained in the library subsequently sent by the plaintiff. However, with the malafide intention, the defendant failed to either acknowledge the receipt of these books or the invoices, despite repeated requests either to return the books or clear the payment. But the defendant did not clear the outstanding amount. Thus, the plaintiff is entitled to recover a sum of Rs. 5,09, 140/- along with interest.
3. Written statement filed by defendant no. 1 wherein objection taken for limitation and mis-joinder of parties. It is stated that defendant CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 3 no. 2 has nothing to do with the transaction alleged by the plaintiff. It is also objected that no agreement with regard to payment of any interest was there between the parties. Supply of books by the plaintiff to defendant no. 1 is denied. Raising of invoices by the plaintiff upon defendant no. 1 is also denied. Demand of payment from defendant no.1 is also denied and rest of the averments of the plaint also denied by defendant no. 1.
4. Plaintiff filed replication to the written statement of defendant no. 1 wherein contents of the written statement are denied and averments made in the plaint are reiterated and affirmed. It is specifically denied that the suit of the plaintiff is barred by limitation. It is further stated that defendant no. 2 has been impleaded in the suit as regulatory body controlling to it.
5. Upon application moved by defendant no. 2 under Order 1 Rule 10 (2) of CPC, the name of defendant no. 2 was deleted from array of parties by order dated 22/08/2009 passed by my ld predecessor.
6. My ld predecessor by order dated 11/04/2008 framed following issues :
"1. Whether this court has no jurisdiction to try this suit in view of preliminary objection no. 1 of the written statement of defendant no. 1 ? OPD1
2. Whether this suit is barred by limitation ? OPD1.
3. Whether the suit is bad for mis joinder of the parties ? OPD.
4. Whether the plaintiff is entitled for decree of Rs. 9,36,017/-
along with interest as prayed in the plaint ? OPP.
5. Relief."
7. To prove its case, plaintiff examined Sh. Ashok Kumar Parwanda as PW1 who tendered his evidence by way of affidavit Ex. PW1/A. CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 4 He further proved documents Ex. PW1/1 to Ex. PW1/32. Exhibition of these documents were objected on the ground that the documents were photocopies. The plaintiff further proved Ex. PW1/33, photocopy of receipt Ex. PW1/34 and reply of notice by defendant no. 1 as Ex. PW1/35. This witness was cross-examined by ld counsel for the defendant and thereafter by separate statement, plaintiff closed PE. In defence, defendant had examined Sh. Pawan Sharma and tendered his evidence by way of affidavit Ex. PW1/A. This witness was cross-examined by ld counsel for the plaintiff and thereafter by separate statement, ld counsel for the defendant closed DE. However, an application under Order 18 Rule 17 of CPC was moved and the said application was allowed by this court by order dated 14/01/2013 and in view of the said order, DW1 was further cross-examined by ld counsel for the plaintiff.
8. I have gone through the entire records of the case, including pleadings of parties, evidence led by the parties and documents proved by the parties during the trial. My issuewise findings are :
9. Issue No. 2Whether this suit is barred by limitation ? OPD1. Since this issue is pertaining to the limitation, therefore, this court is going to decide this issue prior to other issues. Onus to prove this issue is upon defendant no. 1. In Ex. PW1/A, PW1 relied upon voucher dated 04/08/2003 as Ex. PW1/24. This document is perused. This document is a photocopy of the voucher dated 04/08/2003. It is the case of the plaintiff that by this document, defendant no. 1 admitted settled payments. First of all this document is a photocopy which cannot be allowed to be read in evidence as per Sections 61 and 62 of CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 5 Indian Evidence Act which states :
"61. Proof of contents of documents. - The contents of documents may be proved either by primary or by secondary evidence.
Section 62 of the said Act further states :
62. Primary evidence. - Primary evidence means the document itself produced for the inspection of the Court."
Moreover, for the sake of arguments of the plaintiff, this document is allowed to believe upon then also the present suit was instituted on 23/05/2007. Therefore, if the plaintiff is to be believed upon then as per Ex. PW1/24, the plaintiff could file the suit up to 04/08/2006. Therefore, this document is not going to help the plaintiff. During cross- examination, it is stated by PW1 that no acknowledgment receipt is on the record. In cross-examination, it is further admitted by PW1 that almost all the documents are photocopies. He has further admitted that Ex. PW1/24 is a photocopy and he did not possess the original. In further cross-examination, PW1 has further stated that he did not have the original of Ex. PW1/24. A suggestion was given that no such voucher Ex. PW1/24 was prepared by the defendant or any of the employee of the defendant and the suggestion was denied. During cross-examination, DW1 was confronted with a document dated 22/07/2004 and he has stated that he could not identify the signature and comment written as 'recommended for library.' DW1 did not recognize the note and signature as Mark D on Ex. PW1/23. It was further stated by DW1 that there was no employee with the name of Sh. F. C. Gupta in the year 2003. He has further stated that there was no Sh. F. C. Gupta in accounts department of his institute even in 2003 prior to his joining. DW1 further stated that he was going to the institute even prior to 2005 as a trainee and hence he was knowing all the academicians. He has further stated that Ex. PW1/24 does not pertaining to his institute. DW1 has further stated that he has joined CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 6 the institute in 2005 and they had not placed any order in Delhi since then and hence DW1 would not have placed any order in Delhi even prior to that. A suggestion was given that voucher was prepared for the payment of Rs. 2,74,508/- dated 04/08/2003 to be paid to the plaintiff and the suggestion was denied. As per Ex. PW1/A, vouchers up to serial no. 1 to 13 were raised up to year 2003 and the present suit has been filed in the year 2007. Therefore, this suit for vouchers Ex. PW1/6 to Ex. PW1/18 is hopelessly time barred and this court cannot entertain this suit regarding Ex. PW1/6 to Ex. PW1/18. The suit of the plaintiff at the most survives only for Ex. PW1/19, Ex. PW1/20, Ex. PW1/21 and Ex. PW1/22. The plaintiff is also not able to prove Ex. PW1/24 as original of this document could not brought by the plaintiff before this court. Therefore, issue no. 2 is answered partly in favour of the plaintiff to the extent that the present suit survives only for Ex. PW1/19 to Ex. PW1/22 and for rest of invoices, the suit is time barred.
10. Issue No.1.
Whether this court has no jurisdiction to try this suit in view of preliminary objection no. 1 of the written statement of defendant no. 1 ? OPD1 Onus to prove this issue was upon defendant no. 1 in view of the objection no. 1 as raised in the written statement regarding territorial jurisdiction of this court. In para 14 of the plaint, it is stated by the plaintiff that the plaintiff supplied the ordered books from the office of the plaintiff at Kalkaji, New Delhi and the faculty/librarian of the defendant used to place the order over phone at Delhi. This court relies upon Rameshwar Dass Dwarka Dass Vs. Deepak Puematics (P) Ltd 147 (2008) DLT 624.
In view of such law, this court is of the considered opinion that since part of cause of action arisen in Delhi and therefore, this court has territorial jurisdiction to entertain and try this suit. Thus this issue CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 7 is answered against the defendant and in favour of the plaintiff.
11. Issues No. 3.
Whether the suit is bad for mis joinder of the parties? OPD.
Onus to prove issue no. 1 is upon the defendant. Since this court by order dated 22/08/2009 deleted defendant no. 2 from the array of parties, therefore, issue no. 3 does not survive in view of the observations made by my ld predecessor.
12. Issue no. 4.
Whether the plaintiff is entitled for decree of Rs. 9,36,017/- along with interest as prayed in the plaint? OPP.
Onus to prove this issue was upon the plaintiff. This court has already observed during disposal of issue no. 2 that the suit of the plaintiff survives only for Ex. PW1/19 to Ex. PW1/22. The plaintiff further relied upon Ex. PW1/23 which is copy of letter dated 23/07/2003 and submits that since document was acknowledged by one Sh. F. C. Gupta, therefore, the suit of the plaintiff survives also for recovery of the amount mentioned in this document. First of all, this court observes that the plaintiff is not able to prove the acknowledgment or noting upon this document by Sh. F. C. Gupta on behalf of the defendant as the plaintiff is not able to prove that any person named as F. C. Gupta was working with the defendant. Moreover, this document was executed in July, 2003 and the suit was filed in the year 2007. Therefore, any liability acknowledged by document Ex. PW1/23 does not survive as liability mentioned in this document itself barred by limitation. Now the suit of the plaintiff survives only for document Ex. PW1/19 to Ex. PW1/22. During cross- examination, it is challenged by the defendant to PW1 that Ex. PW1/6 CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 8 to Ex. PW1/22 are not the true copies of the office copies or the originals and the suggestion was denied. It is further suggested that Ex. PW1/6 to Ex. PW1/22 were not sent to the defendant and the suggestion was also denied. Again these documents are perused. Ex. PW1/19 is invoice but this document does not bear the signatures of any person on behalf of the defendant as mark of receiving of the goods mentioned in the invoice. Ex. PW1/20 is a photocopy of invoice dated 30/07/2004. Since this document is a photocopy, therefore, this document cannot be looked into or not proved in accordance with law as per the Evidence Act. Ex. PW1/21 is again a invoice but this document does not bear the the signatures of any person on behalf of the defendant as mark of receiving of the goods mentioned in the invoice. Similarly Ex. PW1/22 is a photocopy and this document cannot be looked into. Moreover, as per this document books were sent from Kalkaji, New Delhi to Gwalior. Therefore, either these books would have been received personally by any person on behalf of the defendant or dispatched through some transporter. Neither any receiving on behalf of the defendant has been brought on the record nor any transport receipt or G.R. number as such has been proved or brought on the record. In such circumstances, it is not proved by the plaintiff that books mentioned in Ex. PW1/19 to Ex. PW1/22 were in fact supplied by the plaintiff to the defendant. Therefore, the plaintiff is not able to discharge the onus to prove this issue. Even during cross- examination, no specific challenge on behalf of the plaintiff to DW1 regarding the receipt of the books mentioned in Ex. PW1/19 to Ex. PW1/22. Therefore, the plaintiff is not able to discharge the onus to prove this issue and accordingly this issue is also answered against the plaintiff.
CS No. 382/09M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 9
13. Issue no. 5.
Relief.
In view of the observations made herein-above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open (Jitendra Kumar Mishra) court on 26.11.2013. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 10 CS No. 382/09 26/11/2013 Present : None.
Vide separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra) Additional District Judge-09 Central District, Tis Hazari Courts Delhi/26.11.2013 CS No. 382/09 M/s. Technip Books International Vs. Institute of Technology and Management & Anr. Page 11