Delhi High Court
Vijay Sirohi vs Sh. Sushil Sharma on 5 March, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.127/2013
% 5th March, 2014
VIJAY SIROHI ......Appellant
Through: None.
VERSUS
SH. SUSHIL SHARMA ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Nos. 10124/2013 (condonation of delay in filing) and 10126/2013 (condonation of delay in re-filing)
1. For the reasons stated in the applications, delay in filing and re- filing the appeal is condoned.
C.Ms stand disposed of.
+ RSA No.127/2013
2. No one appears for the appellant although it is 12.10 P.M. Even on the last effective date i.e 24.7.2013, no one appeared for the RSA No.127/2013 Page 1 of 5 appellant. No presence is also recorded for the appellant on 22.11.2013 when the learned Single Judge was not holding the Court.
3. This Regular Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the concurrent judgments of the courts below; of the trial court dated 8.11.2010 and the first appellate court dated 11.10.2012; which have decreed the suit for recovery filed by the respondent/plaintiff. Trial court had awarded a sum of Rs.64,000/- towards damages but the first appellate court reduced the amount to Rs.32,000/- and therefore the net decree passed is of Rs.88,394/- instead of Rs.1,20,394/- as passed by the trial court.
4. Before adverting to the facts of the case, it requires to be noted that the appellant/defendant did not file any written statement and did not lead evidence. Even the witnesses of the respondent/plaintiff are not cross- examined.
5. Respondent/plaintiff is a transporter and he filed the subject suit for recovery on account of the claim towards transportation, demurrage etc for transporting the goods of the appellant from Delhi/Okhla to Muzuffar Nagar. No further transportation as requested by the appellant/defendant could take place to Kotdwar in Uttaranchal because the respondent/plaintiff did not have permit for Uttaranchal. The claim by the respondent/plaintiff is RSA No.127/2013 Page 2 of 5 therefore on account of detention of his trucks with the goods of the appellant at Muzuffar Nagar and all other related claims thereto.
6. The relevant facts are stated in para 2 of the impugned judgment of the first appellate court and which reads as under:-
"2. Brief facts of the case are that the plaintiff/respondent filed a suit for recovery of Rs.1,20,394/- against the defendant/appellant stating that the plaintiff is running the proprietorship business of transportation in the name and style of M/s Balaji Roadlines at A-64, Mandir Mohalla, Samepur, Opp. Petrol Pump, Delhi and defendant was having business dealing with the plaintiff and the plaintiff used to transport goods of defendant from time to time. As stated plaintiff is also maintaining a running account of the defendant. As stated on 23.6.04 defendant approached the plaintiff at his office and requested for two trucks for transportation of goods from Okhla to Muzuffar Nagar. Accordingly goods were loaded in trucks baring no.UP-12 A/5395 and UP 12B/3542 from Okhla, New Delhi to Muzuffar Nagar on 23.6.04 and after one week of loading of the goods in the trucks the defendant told the plaintiff to transport the goods to Kotdwar without any required documents i.e. bill and form no.31. The plaintiff was not having permit for Uttaranchal so the plaintiff showed his inability to transport the goods to Uttaranchal, hence plaintiff requested the defendant to transport the goods through other trucks having permit for Uttaranchal and requested for unloading of the truck and make payment of damages as well as outstanding amount of Rs.46,194/-. The plaintiff also sent two telegrams on 2.7.04 and 5.7.04 claiming Rs.1,000/- per day per truck as damages and Rs.2,000/- towards unloading of trucks from the defendant but to no avail. The plaintiff sent a written complaint dated 6.7.04 to the concerned SHO P.S. Samepur Badli and on 31.7.04 to DCP Ashok Vihar. A godown for also taken on rent @ 5,000/- per month for keeping the goods of the defendant and plaintiff even got a legal notice dated 3.8.04 but the same was received back unserved. Thereafter reminder was sent which was duly served but the defendant in connivance with the local police had threatened to get the delivery of the aforesaid goods without making any payment to the plaintiff. Hence the instant suit was filed."RSA No.127/2013 Page 3 of 5
7. As already stated above, the first appellate court reduced the claim towards damages from Rs.64,000/- to Rs.32,000/- and had modified the decree by reducing the decretal amount from Rs.1,20,394/- to Rs.88,394/-.
8. The relevant observations of the first appellate court are contained in para 7 of the impugned judgment and which reads as under:-
"7. There is no defence of the defendant on record because written statement has not been filed. Issues have also not been farmed and no evidence was led by the defendant. The testimony of the plaintiff has remained unrebutted and unchallenged. No statement of account has been placed by the defendant on record to controvert the claim of the plaintiff. The complaint Ex. PW-1/33 and 34 alongwith notice Ex. PW-1/43 are throwing light on the controversy and all the pleas of the plaintiff has fallen to the deaf ears of the defendant. The balance sheet Ex. PW-1/1 clearly shows the balance outstanding as on 10.12.03 as Rs. 46194/-. Not even a single question has been put by the defendant in cross examination even despite opportunity and the case of the plaintiff is deemed to be admitted by the defendant. The rent receipt Ex.PW-1/35 to Ex. PW-1/42 are also available on record but the plaintiff has restricted is claim for two months only to the tune of Rs. 10,000/-. Though there is no proof to show the expenditure towards unloading of trucks to the tune of Rs. 2,000/- but the plaintiff is entitled for certain amount for loading and unloading of the trucks simultaneously and I do not find any fault regarding decree of the amount in favour of plaintiff by Ld. Trail Court. It has been submitted that goods remained stocked in the truck itself from 23.6.04 to 24.7.04 and has relied upon Ex. PW-1/33 and Ex. PW-1/34 complaints made to police. There is no proof on the record which can suggest as to how much amount was paid with respect to the trucks in question and damages have been claimed for Rs. 1,000/- per day per truck for these 32 days but actual payment made to the trucks have not been proved. Hence in these circumstances the oral testimony of the plaintiff cannot RSA No.127/2013 Page 4 of 5 be taken as such and some reasonable amount is required to paid. The Ld. Trial Court has taken the amount of Rs. 64,000/- on the basis of self serving statement of plaintiff not corroborated by any documentary proof. The cost incurred in the transportation is also not proved. It has been submitted during the course of arguments that these trucks were owned by the plaintiff himself, hence in these circumstance reasonable damages can be assessed and Rs. 500/- per trucks per day is hereby assessed as damages. Accordingly, plaintiff is held not entitled to the amount of Rs. 64,000/- but only Rs. 32,000/- will suffice. Apart from this I do not find any infirmity or illegality in the judgment of Ld. Trial Court which has been correctly decreed after the appreciation of the facts and I hereby affirm the some. In view of the above discussion the appeal is partly allowed and decree is partly modified and instead of decree of Rs. 1,20,394/- a decree of Rs. 88394/- is hereby passed. The interest awarded by the Ld. Trial Court is also not required to be modified. The proportionate cost on amount of Rs. 32,000/- is awarded to the appellant in this appeal. Decree sheet be prepared accordingly. Trial court record be sent back alongwith copy of the judgment. File be consigned to record room."
9. A second appeal under Section 100 CPC is maintainable if there is a substantial question of law. In the present case, no substantial question of law arises especially in view of the fact that the appellant/defendant filed no written statement and led no evidence whereas there is unrebutted testimony of the respondent/plaintiff on record. Accordingly,there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.
MARCH 05, 2014 VALMIKI J. MEHTA, J.
Ne
RSA No.127/2013 Page 5 of 5