Delhi High Court
Supreme Telecommunication Ltd. vs Rpg Transmission Ltd. on 25 May, 2006
Author: Swatanter Kumar
Bench: Swatanter Kumar, S.L. Bhayana
JUDGMENT Swatanter Kumar, J.
Page 2040
1. M/s RPG Transmission Limited, the respondent in the present appeal filed a suit against M/s Supreme Telecommunication Limited averring that the appellant had placed a purchase order dated 24.8.2000 which was subsequently amended by letter dated 31.10.01 for supply of 100 M Microwave Tower under which the respondent was required to do the work of foundation as well as erection. The appellant was doing work for its client M/s Samsung SDS Co.Ltd. The last purchase order was to bind the parties and the value of the purchase order was Rs. 72,25,090/- which included supply of 100 M Microwave Tower for a consideration of Rs. 35,41,124.80/-, work of foundation for a consideration of Rs. 25,60,715/- and work of erection was to costs at Rs. 11,23,250/-. A letter of credit was opened by the appellant on 24.4.02 which was subsequently amended on 31.8.02 and it was agreed that on completion of each portion of work a completion certificate would be issued by the respondent to the appellant. The respondent completed the entire work and the same was accepted by the appellant. Payment of Rs. 25,60565/- was made on 4.9.02 against the work of the foundation. No payment was made on account of erection. Finally, the respondent claimed a sum of Rs. 12,49,861/- from the appellant. According to the respondent, the entire work had been completed and the liability of the appellant to pay this amount was said to be unequivocal. The respondent asked the appellant to issue completion certificates as well as to make the payment. The entire work was completed on 5.12.02 where after the appellant started raising false, baseless and mischievous claims and allegations against the respondent. In these circumstances, the respondent filed the suit for recovery of Rs. 12,49,861/- with interest @18% p.a.
2. The suit was contested by the appellant and it was stated that the entire work was to be completed within a period of 26 weeks, however, they failed to complete the work for almost 49 weeks from the date of the purchase order and it was result of a negligence and breach committed by the respondent. The amount claimed was denied. It was not disputed that there was a meeting between the parties on 5.10.02. On the pleadings of the parties, the Trial Court framed the following issues:
(1) Whether this Court has territorial jurisdiction to entertain the present suit OPP (2) Whether the plaintiff is entitled to recover an amount of Rs. 14,56,088 from the defendant OPP (3) Whether plaintiff is entitled to recover any interest from the defendant, if so, at what rate, for what period and what amount OPP (4)Relief.
Page 2041
3. The Trial Court while answering the issues in favor of the respondent and passing a decree for a sum of Rs. 12,49,861/- with interest @ 9% p.a recorded the following findings:
It has been argued on behalf of plaintiff that entire work under purchase order was completed as per satisfaction of the defendant and nothing remained to be done as is clear from the correspondences proved on record. It has also been argued that correspondences between the parties show that defendant had been raising frivolous issues. He has also argued that claims towards invoices Ex PW1/37 (P-65) dated 24.10.02 for Rs. 48,461 ; Ex PW1/38 (P-66) dated 10.7.02 for Rs. 1 lac; Ex PW1/39 (P-67) dated 24.10.02 for Rs. 10,53,400 and Ex PW1/40 (P-68) dated 24.10.02 for Rs 48,000 have been proved on record on the basis of unimpeached evidence of PW-1 and various documents placed on record. Ld.counsel for the plaintiff has also argued that a sum of Rs 12,49,861 is due against invoices referred to above as principal. It is important to note that PW-1 has given details of transactions entered into between the parties and what is due therefore in his evidence exhaustively. This witness has not been cross examined on behalf of defendant. Effect of non cross examination is that facts deposed by the witness remain unchallenged and accepted by the opposite party. Even otherwise, defendant has not led any evidence. Therefore, evidence of PW-1 and other witnesses remain unimpeached and unchallenged. Therefore, I am of the view that when defendant did not cross examine the witnesses of the plaintiff, nor led any evidence, it can not be allowed to set up contrary case during the course of arguments. In his evidence PW-1 has given details of various transactions invoices Ex PW1/37(P-65) dated 24.10.02 for Rs 48,461; Ex PW1/38 (P-66) dated 10.7.02 for Rs 1 lac; Ex PW1/39 (P-67) dated 24.10.02 for Rs 10,53,400 and Ex PW1/40 (P-68) dated 24.10.02 for Rs 48,000. Therefore, I am of the view that plaintiff is entitled to recover Rs 12,49,861 from defendant on account of principal. Plaintiff has also claimed interest on the amount due @ Rs 18% per annum. Nothing has been placed on record whether there was any agreement between the parties regarding charged of interest at the rate claimed by the plaintiff in case of delayed payments. However, at the same time, it should be noted that transaction between the parties was commercial, therefore, plaintiff is entitled to recover interest at a reasonable rate. To my mind, interest of justice will be met if interest @ 9% per annum is allowed.
4. Challenge in the present appeal is to the above findings recorded by the Trial Court on the ground that the said judgment and decree suffers from error of law as well as appreciation of evidence. It is contended that the order passed by the Court on 4.11.04 closing the evidence of the appellant was unjustified in law and the defendants were entitled to further opportunity to lead evidence as such the judgment and decree of the Court is vitiated in law for violation of the procedural law and not granting adequate opportunity to lead the defense. The contentions raised on behalf of the Page 2042 appellant are void of any substance and merit. In the judgment under appeal, it has been noticed specifically by the Trial Court that the appellant was first proceeded against ex-parte but this order was subsequently set aside and the defendant was permitted to participate in the proceedings. The appellant was also allowed to cross-examine the witnesses of the plaintiff but despite grant of opportunities not only the defendant failed to cross-examine the said witnesses but also failed to lead any evidence resulting in passing of the order of closing the defense of the appellant. The order dated 4.11.04 was passed, obviously, in compulsive circumstances. The said order reads as under :
No evidence of the defendant is present today. Neither any list of witnesses has been filed nor have any steps been taken to summon the witnesses. On the last date of hearing, it was made clear to the defendant that defendant shall produce all its evidence today at his own risk and responsibility. Today, the representative of the defendant present submits that because of the earlier counsel did not return the file; therefore, no evidence is present. This is no excuse for not producing the evidence particularly when last opportunity is given to the defendant to produce his entire evidence and no steps have been taken to summon the witness. This shows that his conduct is indolence and also the fact that it shows that there is indifference on the part of the defendant towards judicial proceedings. In these circumstances, no further opportunity is allowed. Therefore, defendant evidence is closed. Case is now fixed for final arguments on 16.12.2004
5. The appellant had challenged the above order before this Court being CM(M) No. 1753/04 which was got dismissed as not pressed with liberty to challenge the amounts in the appeal. Vide order dated 15.12.04. We are unable to see any error of jurisdiction or otherwise in the order dated 4.11.04. The rule of procedure are handmade of justice and should be implemented to achieve the ends of justice. The procedural law despite being regulatory in nature cannot come to the advantage or rescue of a litigant who abuses the process of the Court and keeps on taking adjournment after adjournments. A litigant who does not take steps as required by the Court despite orders from time to time cannot claim equity from the Court. Reference can be made to a recent judgment of this Court in the case of The Executive Engineer and Ors. v. M/s Machinery Parts Corporation being RFA No. 632/2000 decided on 27.4.06 where the Court held as under :
The conduct of the defendants before the Court was of such a nature that the order passed by the learned Trial Court would not call for any interference. Furthermore, the court cannot keep on adjourning the case for evidence of the parties indefinitely and grant adjournments at the mere asking of the parties, without any plausible cause or reason. Reference in this regard can be made to the judgments in the cases of Chander Singh v. Chottulal Page 2043 and Sarjeet Kaur v. Gurmail Singh and Anr. 1999 (3) PLR 402 (Vol.123). In the case of Sarjeet Kaur (supra), the Court held as under:
Language of the impugned order clearly shows that the plaintiff had exhausted all limits for seeking adjournment on every score, whatsoever,. The very purpose of granting last opportunity stood frustrated by grant of six subsequent adjournments, but even then the plaintiff neither summoned witnesses nor examined any. Wonder there was any other choice left before the learned trial court but to pass the impugned order. This court had the occasion to discuss the scope of such power of the court and consequence of persistent default on the part of the party in the trial Court, in the case of Joginder Singh and Ors. v. Smt. Manjit Kaur, Civil Revision No. 5885 of 1998, decided on 14.1.1999, held as under:
The cumulative effect of the provisions of Order 18 Rule 2 read with Rules 1 and 2 of Order 17 of Code of Civil Procedure and inherent powers of the Civil Court vested in it under Section 151 of the Code, placed an implied obligation on the Court not to adjourn the case unless sufficient cause was shown. The cause by itself cannot always be treated as a ground for repeated adjournments. Un-necessary and avoidable adjournments must be denied by the Courts. On the one hand, trial Courts are expected to dispose of suits and other proceedings expeditiously, and on the other, if parties to a lis are permitted to get the suits adjourned on the mere asking and that too for the indefinite times, it would frustrate the very spirit behind the provisions of the Code of Civil Procedure. Obligation on a Court cannot be read as construed in isolation. It must find its reasoning from the basic concept of genuine attitude of the litigant. A litigant must help the Court by effective participation for expeditious disposal of the suit. Having taken more than six opportunities after the last opportunity was granted by the Court, the plaintiff can hardly challenge the correctness of the impugned order and more particularly on the ground that the learned trial Court has failed to exercise jurisdiction vested in it or the trial court has wrongly exercised jurisdiction. The Rajasthan High Court in the case of Chander Singh v. Chottulal , while commenting upon the afore-said provisions of the Code, held as under:
It is clear from the order-sheet of the case that the learned trial Court repeatedly adjourned the case in utter disregard of the provisions of Order 17, Rule 1, C.P.C. Its provisos (b) and run as under :
(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.
Page 2044 (c ) the fact that the pleader of a party is engaged in another Court shall not be a ground for ajdournment:
Such liberal attitude of the trial Courts is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial Court should have closed the defendant's evidence much earlier. It had acted illegally in granting said adjournments to the defendant. It has not acted illegally or with material irregularity in the exercise of its jurisdiction in any manner in passing the impugned order :
The conduct of the plaintiff-petitioner no way demands exercise of judicial discretion in the Court in his favor on the grounds of equity or legal maxims. Prudent reasoning leads one to no other conclusion but to one that the learned trial Court was fully justified and in fact was left with no alternative other than closing the evidence of the petitioner.
In view of the above principle and keeping in view the facts and circumstances of the case, we see no reason to interfere with the order of the Court, particularly when the order was not even questioned by a Revision or any other appropriate proceedings, when the decree was passed in February 2001.
6. The present case is worse than the above referred case inasmuch as the appellant had challenged the order dated 4.11.04 before this Court by filing a revision but the reasons best known to it it chose to withdraw the said, got the same dismissed as not pressed. That was probably the most appropriate opportunity for the appellant to press prayer before the Court so that before passing of the decree by the Trial Court it could lead evidence, if any. The appellant cannot be permitted to take advantage of his own wrong and we see no reason why this Court should set aside the order dated 4.11.04. In fact, in the prayer of the Memorandum of Appeal, there is no prayer for setting aside the said order. Be that as it may, the conduct of the appellant is such, that would deprive him of any equitable relief from the Court in exercise of its discretionary power.
7. Coming to the merits of the case, the plaintiff had led enough documentary and oral evidence to substantiate its claim. There is no dispute to the fact that the respondent was engaged and confirmed purchase order. The obligation was upon the respondent to complete the job. The work was completed though with some delay but from the record before this Court, it does not appear that at any point of time the respondent had accepted the alleged delay. On the contrary, it had admittedly made payments from time to time to the respondents. Lastly the payment of Rs. 25,60,565/- was made on 4.9.02. There is no evidence on record to show that prior thereto or even at that time any objections was raised by the appellant. On the contrary, the appellant has led no evidence. There was a meeting between the parties on 5.10.02. What action was taken by the appellant subsequent to this meeting is again left to the imagination as no evidence was produced on record. The letter Ex PW1/30 dated 14.10.02 reads as under :
Page 2045 Dear Mr.Bendale Please refer our telcon. Of date on the subject. As informed to you, all the pending works regarding Luni Tower are getting completed today. As you are aware, the Earthing work-scheduled to be done on Friday, the 11th October, 02 could not be done due to non-avilability of IOCL Site officials and as such is being done today. The same will get completed before the end of the day. All the testing formalities have also been completed. In view of the above and as promised by you, please arrange to issue Completion Certificate at your end in today's date (tomorrow being a holiday). Further, as the PO is said to have been amended by you for the additional items, I would appreciate if the Cheque could be sent at the earliest. Thanking you and assuring you of our best services always.
8. The confirmed purchase order placed by the appellant on the respondent has also been duly proved. It was for the defendants to show on record and prove that the respondents have failed to discharge their obligation in terms of the contract entered into between the parties. Issue in regard to territorial jurisdiction was also framed by the Trial Court and has correctly been answered. The onus to prove this issue was upon the appellant but they failed to lead any such evidence despite grant of opportunities. Furthermore, the purchase order dated 24.8.2000 clearly shows that the order was placed upon the respondent at Delhi at its office at Basantlok, Basant Vihar, New Delhi. Thereafter, various correspondence has been exchanged between the parties and their meetings were held at Delhi. In absence of any evidence to the contrary there is no reason why the judgment of the Trial Court be not sustained by this Court.
9. The amount claimed in the suit was based upon the documents executed between the parties including the purchase order. The Trial Court has awarded a reasonable interest @ 9% p.a instead of 18% p.a, as claimed by the respondent.
10. For the reasons afore-stated, we find no merit in this appeal and the same is dismissed, while leaving the parties to bear their own costs.