Delhi District Court
M/S Tayaje & Sons Pvt. Ltd vs M/S Chetan Cabletronics Pvt. Ltd on 4 June, 2019
In the court of Sh. A.S. Jayachandra, Ld. District & Sessions Judge,
Shahdara, Karkardooma Courts, Delhi
C.S. No. 373/2016
M/s Tayaje & Sons Pvt. Ltd.
Through its Director: Shri Manoj Kumar,
S/o Shri Surender Mohan,
11/3, Damodar Park, Dilshad Garden,
Industrial Area, G.T. Road,
Shahdara, Delhi-110095. ....Plaintiff
Versus
M/s Chetan Cabletronics Pvt. Ltd.
Through its Director: Shri Rakesh Goel,
E-445, Chopanki, Industrial Area,
Bhiwari District: Alwar ( Rajasthan) .....Defendant
Date of Institution : 05.02.2014
Arguments heard on : 07.05.2019
Date of decision : 04.06.2019
JUDGMENT
1. Plaintiff-company sues the defendant-company for recovery of sum of Rs. 10,04,125/-. It is alleged that the defendant-company purchased the PVC compound goods from the plaintiff-company under various invoices mentioned as under:
(a) On 1-6-2016 vide invoice no.0117 for Rs.1,65,814/-
(b) On 13-6-2012 vide invoice no.0139 for Rs.2,30,912/-
(c) On 23-6-2012 vide invoice no.0158 for Rs.1,95,290/-
(d) On 29-6-2012 vide invoice no.0172 for Rs.1,13,920/-
(e) On 30-6-2012 returned goods by defendant vide invoice no.1 dated C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 1/15 29.06.2012.
(f) On 6-7-2012 vide invoice no.0187 for Rs.3,30,298/-
(g) On 19-7-2012 vide invoice no. 0205 for Rs.2,54,428/-
(h) On 30-7-2012 vide invoice no.0233 for Rs.2,50,944/-
(i) On 18-8-2012 the defendant returned goods vide invoice no. 3 dated 17-8-2012 for Rs.1,29,465/-
(j) On 20-12-2012 part payment made by defendant vide cheque no. 212300 for Rs.2,25,130/-.
2. It is also submitted that in the books of accounts maintained by the plaintiff, the defendant is liable to pay sum of Rs. 8,35,670/- as on 20.12.2012. The defendant intentionally did not pay the amounts. A legal notice dated 28.10.2013 sent to the defendant. The same was replied by the defendant which admitted the supply of goods and the balance. The payments demanded were resisted on the ground that the goods supplied were defective. Hence, the present suit for recovery of the above sum along with the interest which comes to Rs.10,41,25/-.
Case of the Defendant :
3. Upon appearance of the defendant, the suit is resisted on the ground that the suit is filed on frivolous grounds. The goods supplied were defective. The plaintiff himself is liable to pay the defendant a sum of Rs.13,04,648/-. Plaintiff has no cause of action. Suit is based on surmises and conjectures. Plaint is not properly signed and verified by the authorised C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 2/15 person. It is the plaintiff who approached the defendant canvassing their products. Believing the representation by the plaintiff about the quality, orders were placed. The raw material are supplied by the plaintiff upon which the defendant manufactures the wires and cables. When such final products were supplied to the customers of the defendant, the customers made complaints on the quality. The same were communicated to the plaintiff that the goods supplied were of inferior quality. Plaintiff failed to improve the quality. Thus, the defendant stopped placing orders. Plaintiff assured that they would take back such defective goods and amicable settlement would be made to adjust the losses suffered by the defendant.
Defendant returned the goods valued at Rs.3,51,341/- as per invoice no. 1 and goods valued at Rs.1,29,465/- as per invoice no.3 which is also admitted by the plaintiff. Since the goods are returned, there is no liability.
4. The defendant also submits that it suffered the losses since the customers rejected the goods worth Rs.13,04,948/- which were debited as per the debit entries as pleaded in para 16 of the W.S. reproduced as under:
Sr. Name of Vendor Debited Amount Date of Debit
No. (In Rs)
1. Cable Crafts 4,24,450/- 28-08-2012
2. Cable World 1,65,300/- 10-10-2012
3. Elegant Electronics 52,500/- 10-10-2012
4. Cable Fort 2,46,232/- 31-10-2012
5. Girish Radio Corporation 4,16,466/- 18-12-2012
Total: 13,04,948
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5. The defendant contends that besides the above debit entries, defendant had also lost its customers for the defective goods supplied by the plaintiff. There was a tele-conversation between the directors of the company and plaintiff undertook to bear a sum of Rs.8,35,670/-. Now the defendant submits that after such adjustment and return of the goods acknowledged by the plaintiff, the defendant is only liable to pay a sum of Rs.2,25,130/- to the plaintiff. It is submitted that defendant had adjusted the sum of Rs.8,35,670/- as agreed between the parties. However, there is no written agreement to this effect which was done in good faith of business. On merits, the defendant denies all the other allegations save otherwise so admitted in the preliminary objections. The contentions in the preliminary objections are reiterated. It is the prayer of the defendant the suit be dismissed. (Noting: The defendant had filed the written statement by paginating it with black ink. Page 16 of the W.S. shows that the page ends with the sentence " it is further denied that....................." and page 17 starts with a sub para "(b) a decree for the recovery of Rs.10,04,125/- may be passed in favour of the plaintiff and against the defendant") thus the W.S. is incorrect and even in the W.S. there is a prayer perhaps a counter claim for which no court fee is paid on the counter-claim. There was no prayer by the Ld. Counsel to register it as a counter-claim nor such counter-claim was registered.
6. It is seen from the order sheets that the defendant filed the C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 4/15 written statement on 06.09.2014 along with an application to condone the delay which was allowed subject to payment of costs. There is no counter claim as such though there is a prayer as noted above in para 5 (supra). The defendant prays for dismissal of the suit.
7. It is seen from the record that the suit claim is for a decree of Rs.10,04,125/- to be decreed along with the interest @ 18% per annum. The Ld. Predecessor of this court by a judgment based on admissions dated 26.07.2016 had partly decreed the suit for a sum of Rs.2,25,130/- against the defendant. The remaining part of the suit claim is the subject matter to be adjudicated herein.
Issues:
8. This court had framed the following issues on 10.01.2017 as under:
1. Whether the plaintiff proves that he is entitled to recover the suit amount less the partly decreed amount on admissions against the defendant, as prayed for in the suit? OPP
2. Whether the defendants proves that he is not liable to pay the amount since the plaintiff had supplied the defective goods? OPD
3. What relief.
9. The plaintiff has not examined any witness. This court by an order dated 22.08.2017 closed the evidence of the plaintiff noting that the plaintiff did not lead any evidence and the PE was closed. This order was C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 5/15 upheld by the Hon'ble High Court in CM(M) No. 1239/17 vide order dated 01.11.2017. Thereafter the matter was kept for defendant evidence. The defendant examined DW-1 and the evidence on behalf of the defendant is closed by an order dated 05.05.2018. Matter was heard. Written arguments are also filed on behalf of the defendant.
Contentions of the Plaintiff :
10. The ld. Counsel for the plaintiff submits that there is already a preliminary decree for a sum of Rs.2,25,130/- passed on 11.08.2015 by the ld. Predecessor and as regards the disputed amount, the defendant having not adduced any evidence to show that the goods were defective and were returned to adjust the balance, this court cannot accept the contentions of the defendant. He prays for a decree accordingly based on the admissions of the defendant in the cross-examination.
Contentions of the Defendant :
11. In the written submissions, the defendant submits that the plaintiff failed to prove his case of the claim. The plaintiff has not examined any witness nor any corroborative evidence is found on record. Adverse presumption be drawn against the plaintiff u/s 114 of the Evidence Act. The debit notes and the documents relied by the defendants are proved through the evidence of DW-1 and the case of the defendant is to be believed. He submits that the plaintiff is not entitled for any relief. The reliance is placed in the case of Ishwar Bhai Vs. Harihar Behra, Indian Kanoon org. DOC C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 6/15 1535897 to urge that if the witness does not enter into the witness box and having not presented for cross-examination adverse presumption has to be drawn against him on the basis of the principles contained in illustration (g) of section 114 of the Evidence Act. He also relied on the ruling of our Hon'ble High Court in Rajesh Kumar Vs. Manmohan Kumar, in RFA 829/17 (DD 26.09.2017) which is also on the same principles. Reliance is also placed in the ruling of Chand Khan Vs. Mohd. Mujib in RFA 59/18 (DD-19.01.2018), wherein the Hon'ble High Court held that where the plaintiff led the evidence and the defendant not leading the evidence, there is no reason to disbelieve the case of the plaintiff. Further reliance is placed on Saurav Bagley Vs. Tajinder Babra, RFA 79/18 (DD 24.01.2018) wherein it is noted that when the defendant had not adduced any evidence and plaintiff having adduced the evidence, there is no illegality in the decree passed by the trial court.
Answers to the Issues No. 1 & 2 :
12. Both the issues are inter-related. Plaintiff is mandated to prove that he is entitled for recovery of the suit amount less the partly decreed amount on admissions. At the same time, the defendant is obligated to prove that he is not liable to pay for the supply of goods which were defective.
There is no evidence adduced by the plaintiff to prove that the amounts are not paid by the defendant. The ld. Counsel for the plaintiff C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 7/15 argues that DW-1 had admitted in the cross examination that the plaintiff company supplied the goods to the defendant as per Ex.DW1/P-1 which are the documents confronted to the witness. These documents are seven invoices. He argues that there is an admission by the defendant himself that a balance of Rs.8,35,670/- was payable by the defendant as on 20.12.2012 and a legal notice was received by the defendant.
13. On the other hand, ld. Counsel for the defendant vehemently argues that in the absence of positive evidence of the plaintiff and following the rulings urged by him, the issue cannot be answered in favour of the plaintiff.
14. In the context of rival submissions, the significant point of law arises whether the confronted documents of the plaintiff in the evidence of the defendant could be treated as the positive evidence. No doubt in Ishwar Bhai (supra) the Hon'ble Supreme Court had noted that witness who had not presented himself for cross examination, is to be treated under the presumption adverse to such party. In the ruling of Rajesh Kumar (supra), it was the defendant no.1 who has not adduced any evidence. The decree was upheld. In the ruling of Chand Khan (supra) also there was no evidence on behalf of the defendant and the case of the plaintiff was upheld. In Saurabh Bagley (supra), the plaintiff was cross examined. The Hon'ble High Court noted that nothing was elicited in the cross examination of the plaintiff which would be in any manner leading to C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 8/15 disbelieve the plaintiff. Thus, the plaintiff's case was upheld.
15. Now, the riddle is in the absence of the deposition of the plaintiff whether the cross examination of defendant no.1 could be relied to answer the issues? The purposes of cross examination in the civil matters is succinctly answered in Sardar Gurubaksh Singh Vs. Gurdial Singh AIR 1927 PC 230.
" The true object to be achieved by a court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross examination."
16. There is no positive evidence by the plaintiff except the cross- examination of DW-1. In the cross-examination of DW-1 certain documents were confronted to the witness for which the authorized representative of the defendant company had answered admitting the acknowledgement of goods supplied by the plaintiff-company. He had submitted that the goods under invoices mentioned at Ex.DW1/P-2 were returned.
17. In the recent ruling of His Lordship J.R. Midha in C.S. Aggarwal vs. State, CAS No. 8/1995 (DD - 29.03.2019), a clear path to adjudicate the matters involving the quest for truth to render justice which is the pivotal duty of the court is clearly laid down :
"44. In Mohan Singh v. State of M.P ., (1999) 2 SCC 428 the Supreme Court held that effort should be made to find the truth; this is the very C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 9/15 object for which Courts are created. To search it out, the Court has to remove chaff from the grain. It has to disperse the suspicious, cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
What is 'Truth' and how to discover it
45. The Indian Evidence Act does not define „truth‟. It defines what facts are relevant and admissible; and how to prove them.
46. Truth in law is synonymous with facts established in accordance with the procedure prescribed by law. The purpose of judicial inquiry is to establish the existence of facts in accordance with law.
47. Sections 3, 114 and 165 of the Indian Evidence Act lay down the important principles to aid the Court in its quest for duly proved relevant facts.
48. Section 3 of the Indian Evidence Act defines the expressions „proved‟, „disproved‟, and „not proved‟. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Evidence" of a fact and "proof" of a fact are not synonymous terms.
"Proof", in the strict sense, means the effect of evidence.
49. If on consideration of all the matters before it, the Court believes a fact to exist or considers its existence probable, the fact is said to be „proved‟. On the other hand, if the Court does not believe a fact either to exist or probable, such fact is said to be „disproved ‟. A fact is said C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 10/15 to be „not proved‟ if it is neither proved nor disproved.
50. The test whether a fact is proved is such degree of probability as would satisfy the mind of a reasonable man as to its existence. The standard of certainty required is of a prudent man. The Judge like a prudent man has to use its own judgment and experience and is not bound by any rule except his own judicial discretion, human experience, and judicial sense.
51. Nothing can be said to be "proved", however much material there may be available, until the Court believes the fact to exist or considers its existence so probable that a prudent man will act under the supposition that it exists. For example, ten witnesses may say that they saw the sun rising from the West and all the witnesses may withstand the cross-examination, the Court would not believe it to be true being against the law of nature and, therefore, the fact is „disproved ‟. In mathematical terms, the entire evidence is multiplied with zero and, therefore, it is not required to be put on judicial scales. Where the Court believes the case of both the parties, their respective case is to be put on judicial scales to apply the test of preponderance. Reference be made to Garib Singh v. State of Punjab, 1972 (3) SCC 418, M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691, R. Puthunainar Alhithan v. P.H. Pandian, (1996) 3 SCC 624, Vijayee Singh v. State of U.P, (1990) 3 SCC 190 , State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , Bundhoo Lall v. Joy Coomar, MANU/WB/ 0198/1882, BipinKumar Mondal v. State of West Bengal, (2010) 12 SCC 91, Johnson Scaria v. State of Kerala , MANU/KE /0367/2006 and Ved Prakash Kharbanda v. Vimal Bindal, 198 (2013) DLT 555 with respect to the scope of Section 3 of Indian Evidence Act.
52. Section 114 of the Indian Evidence Act is a useful device to aid the Court in its quest for truth by using common sense as a judicial tool. Section 114 recognizes the general power of the Court to raise inferences as to the existence or non-existence of unknown facts on proof or admission of other facts.
53. Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex and room must be left for play in the joints. It is not possible to formulate a series of exact propositions and con-flue human behaviour within straitjackets.
54. No rule of evidence can guide the Judge on the fundamental question whether evidence as to a relevant fact should be believed or not. Secondly, assuming that the Judge believes very few cases, guide C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 11/15 him on the question what inference he should draw from it as to assist a Judge in the very smallest degree in determining the master question of the whole subject - whether and how far he ought to believe what the witnesses say? The rules of evidence do not guide what inference the Judge ought to draw from the facts in which, after considering the statements made to him, he believes. In every judicial proceeding whatever these two questions - Is this true, and, if it is true what then?
- ought to be constantly present in the mind of the Judge, and the rules of evidence do not throw the smallest portion of light upon them. Reference be made to Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, Tukaram Ganpat Pandare v. State of Maharashtra, (1974) 4 SCC 544, Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486, State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382, M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691, Limbaji v. State of Maharashtra, (2001) 10 SCC 340 and Ved Prakash Kharbanda v. Vimal Bindal, 198 (2013) DLT 555 with respect to the scope of Section 114 of Indian Evidence Act.
18. Thus it is clear that there is no hard and fast rules of evidence that can guide the court on fundamental question whether the evidence to a relevant fact should be believed or not. In view of the above, the rulings relied by the Ld. Counsel for the defendant is to be considered especially in the backdrop of the evidence available on record adduced by the defendant himself. The rulings relied by the Ld. Counsel for the defendant are distinguishable on facts available in the present case which discussion follows.
19. In the present case, it is clear that there is no evidence on behalf of the plaintiff. But at the same time, DW-1 in his cross-examination admits that the company had received the material as per the invoices except two. He further admits that the company had not sent back at defective goods. He also admits that the defendant had not paid anything C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 12/15 towards the purchase of the goods. It is also found in the admissions of the DW-1 that the defendant company had not lodged any written complaint with regard to the PVC material which were found to be defective and that the protest was only verbal.
20. However, there is one document at Ex.DW1/P2 confronted to the witness by the plaintiff himself which shows a noting that "110 bags being returned purchased vide invoice no.139 (73 bags as per the invoice no. 139) and invoice no. 158 (60 bags)" which total comes to Rs.4,26,202/-. This document confronted by the plaintiff himself bears the writing of return of goods. The plaintiff has not come into witness box to say or clarify regarding the return of goods; but the truth comes out from Ex.DW1/P2 which bears a noting to this effect. The evidence of DW-1 in the cross- examination also finds a rider in the admissions that "it is also true that we have not sent back any goods which we purchased under the invoices except the goods returned under Ex.DW1/P2".
21. Considering the above qualified admissions found in the testimony of DW-1 and further there being no evidence on the part of the plaintiff, this court is to look into the conflicting situation. Since both the issues are taken up together for answering, what credibility and value to be attached to the admissions of DW-1 is the pivotal question. Ex.DW1/P2 is to be accepted in its entirety and this is the document of the plaintiff himself which is admitted by the defendant.
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22. It is well settled that admissions may be culled out not only from the pleadings but from other material on record as held in Shikhar Chand vs. Mst. Bari Bai AIR 1974 MP 75. DW-1 having admitted the fact of supply of material excepting such returned goods and having not paid the amounts, is clear and unequivocal in admitting in his testimony regarding the claim of the plaintiff except the noting found in the document at Ex.DW1/P2. This document is the very document confronted to by the plaintiff to the defendant's witness. This document showing the return of goods which is confronted by the plaintiff himself, dis-entitles the plaintiff to claim the amounts for the goods returned under invoices bearing nos. 139 &
158. Thus, the testimony of DW-1 is taken as part admission in clear terms except for the invoices bearing nos. 139 & 158. For the aforesaid reasons and the point of law, the claim of the plaintiff partly succeeds since the defendant failed to establish that he is not liable to pay the amount on the entire goods supplied except which were returned. Thus the issues no. 1 & 2 are answered accordingly.
Issue No. : 3 (Relief)
23. This is a case where money recovery is sought along with interest @ 18% per annum on the amount due. The plaintiff having confronted the documents which bears the return of goods concerning invoices no. 139 & 158 dated 13.06.2012 and 23.06.2012 respectively, which this court has taken judicial note of while adjudicating the admissions C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 14/15 sans the plaintiff's evidence, the plaintiff is not entitled to claim the amount of Rs.2,30,912/- (invoice no. 139) & amount of Rs.1,95,290 (invoice no.
158) for the reasons at Issues no. 1 & 2. Thus the plaintiff is only entitled to claim a sum of Rs.4,09,468/-.
24. Further considering the aspect of this mis-matched claim, this court is of the opinion that the plaintiff is also not entitled for any interest. Accordingly the following :
ORDER The suit of the plaintiff is partly decreed. The defendant is directed to pay a sum of Rs.4,09,468/- (Rs. Four Lacs Nine Thousand Four Hundred Sixty Eight only) to the plaintiff within 30 days from today. In default, the plaintiff is entitled to claim future interest @ 6% per annum from the date of decree till the date of realisation.
It is also made clear that the liability of the defendant under the preliminary decree dated 26.07.2016 passed by the Ld. Predecessor of this court shall continue apart from the decree passed today.
Parties to bear their own costs. Decree be drawn accordingly.
Digitally signed by A.S. A.S. File be consigned to record room. JAYACHANDRA JAYACHANDRA Date: 2019.06.04 15:44:46 -0400 Typed to the dictation directly, (A.S. Jayachandra) corrected on the system and District & Sessions Judge, pronounced in the open court Shahdara/KKD Courts, Delhi. on 04.06.2019. C.S. No.373/2016 M/s Tayaje & Sons Pvt Ltd. Vs. M/s Chetan Cabletronics Pvt. Ltd. Page No. 15/15