Delhi District Court
Rajinder Singh vs Hindustan Refrigeration Store on 22 July, 2024
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
SENIOR CIVIL JUDGE, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
RCA No. 12/2022
CNR No. DLCT030033132022
In the matter of:-
Sh. Rajinder Singh,
S/o Sh. Balbir Singh,
Proprietor of M/s Rohit Ice Cream,
R/o Durga Colony, Jhajjar Road,
Rewari, Haryana. ...Appellant
VERSUS
1. Hindustan Refrigeration Store,
At 2, 4 & 5, N.S. Marg,
Daryaganj, New Delhi-110002.
2. Elan Professional Appliances Pvt. Ltd.,
At 645/2, Ram Farm,
Zero Road, Ghitorni,
New Delhi-110030. ...Respondents
Date of Institution : 01.07.2022
Reserved for Judgment : 09.04.2024
Date of Decision : 22.07.2024
APPEAL UNDER SECTION 96 OF CODE OF CIVIL
PROCEDURE AGAINST JUDGMENT AND DECREE
DATED 05.05.2022.
JUDGMENT
1. The present appeal impugns the judgment and RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 1 of 15 decree dated 05.05.2022 passed by the learned Ld. Civil Judge- 08, Central, whereby the suit filed by the appellant was dismissed. The appellant herein was the plaintiff and the respondents were the defendants. For the sake of convenience, parties shall be referred to by their nomenclature in the main suit.
2. Brief facts relevant to the present adjudication are that the plaintiff had filed a suit for mandatory injunction wherein it is pleaded that the plaintiff iss running an ice cream factory in the name and style of M/s Rohit Icream, Durga Colony, Jhaggar Road, Rewari Haryana. That the plaintiff had purchased three refrigerators from the defendant No.1 on 16.3.2017 and out of three refrigerator two refrigerator were manufactured defendant No.2. That thereafter the said three refrigerator were delivered to the plaintiff on 16.3.2017 but the plaintiff found that one of three refrigerators which is mentioned at serial No. 3 in the invoice dated 16.3.2017 i.e. Elanpro Blast Freezer (BFD315) SR No.BFD017200011603070001 was not in good condition as some of its parts were broken and its manual was also not there. That the plaintiff put the order for Elanpro Blast Freezer (BFD315) SR No.BFD017200011603070001 but the defendant No.1 had illegally delivered the refrigerator of different model i.e. Chestshowcase BFD315.
3. It is further averred that two refrigerators were working property but third one as mentioned above was not working property as it was not cooling as per the assurances given by the defendant i.e. -40°C. That the cooling was not as per the assurances given by the defendant No.1 and it was also taking long time to cool the goods/ice cream. That the said refrigerator RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 2 of 15 was under the warranty of one year from the date of its purchase. That thereafter the plaintiff made the complaint to the defendant No.1 and then the defendant No.1 also made complaint to the defendant No.2 and some engineer from defendant No.2 came and checked the said refrigerator and told that there was some manufacturing defect which can not be cured. That thereafter the plaintiff so many times visited the defendant No.1 to replace the said defective refrigerator with the fresh one which was ordered by the plaintiff but defendant No.1 was only assuring to talk with defendant No.2 to replace the said defective piece but he kept on lingering the matter. That the plaintiff was running ice cream factory and the said defective refrigerator was not of use of the plaintiff as it was not cooling properly. That finding no other way, the plaintiff sent a legal notice dated 15.04.2017 through his counsel which has been duly served upon the defendants but the defendants did not bother to comply with the same rather the defendant No.2 sent false, frivolous or vague reply dated 24.04.2017. Hence the present suit. The plaintiff had sought the following relief in the suit:
"It is, therefore, respectfully prayed that decree of mandatory injunction may kindly a be passed in favour of the plaintiff and against the defendants thereby directing the defendants to replace the defective Refrigerator 1.0. Chestshowcase BFD315 from new one of Elanpro Blast Freezer (BFD315) in the interest of justice.
Cost of the suit may also be awarded in favour of the plaintiff and against the defendant.
Any other relief which this Hon'ble Court deems fit and proper may also be passed in favour of the plaintiff and against the defendant."
4. The defendants No. 1 did not appear on the service of summons and did not contest the present suit. Defendant No.2, RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 3 of 15 upon service of summons appeared and filed its written statement. It was stated in the written statement by defendant No.2 that there was no protest or claim made by the plaintiff at the time of delivery or thereafter within a reasonable time. That the machine was demonstrated to plaintiff before delivery by defendant No.1 at his outlet. That the delivery was taken by the plaintiff after getting fully satisfied with the machine leaving no scope for defendant No.1 to handover damage of incomplete machine. That the plaintiff raised the issue of broken part only after 32 days i.e. on 17.04.2017. That the plaintiff was shown the same model and the same model was delivered vide invoice No.16637 dated 16.03.2017. That the same model was also called chestshow case BFD 315 as the machine was of chest type. That neither of the defendants claimed that the machine would deliver temperature of -40°C. That data collected from data logger confirms that the machine was delivering -38°C in spite of repeated power cuts. That the plaintiff had registered a complaint with the defendant No.2 on 17.03.2017 which was attended to by the defendant No.2 on 19.03.2017. That the unit was found to be working in line with product specification and design. That the plaintiff had requested for testing the refrigerator again and the defendant No.2 deputed their engineers again on 28.03.2017 with data logger to capture the complete temperature details which were shared with the plaintiff and the machine was working as per product design despite having frequent power cuts after every one hours for as long as 15 to 20 minutes. That any freezer needs continuous and steady power supply to function properly and deliver proper temperature. That the plaintiff had admitted to the defendant's team visiting him that after purchasing this machine, RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 4 of 15 he had second thoughts about the same and wanted to return the machine. That the plaintiff was doing the above acts to forcefully arm twist the defendant to submit to the plaintiff's demand of taking back the freezer. That the plaintiff admitted to the defendant No.2 team member/service engineer that the machine was superior in performance and had no performance related issues.
5. The followings issues were framed in the suit by Ld. Trial Court:
"1. Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant as prayed for in the prayer clause of the plaint? OPP.
2. Relief."
6. The plaintiff examined himself PW-1 who tendered his evidence by way of affidavit Ex. PW1/A. He deposed on the lines of averments made in the plaint. PW1 relied upon the documents i.e. (i) aadhar card Ex.PW1/1 (OSR), (ii) copy of retail invoice dated 16.03.2017 Ex.PW1/2 (OSR), (iii) copy of legal notice dated 15.04.2017 Ex. PW1/3, (iv) postal receipt Ex. PW1/4, and (v) copy of reply dated 24.04.2017. PW1 was cross- examined by Ld. counsel for the defendants No. 2.
7. The plaintiff examined PW2 Sh. Ravi Kumar who tendered his evidence by way of affidavit Ex. PW1/A. PW2 also deposed on the similar lines to the deposition made by PW1. He relied upon the documents i.e. copy of aadhar card Ex. PW2/1 (OSR). He was cross-examined by Ld. Counsel for defendant No.2.
8. The defendant No. 2 examined Sh. Manoj Arora as D2W1 who tendered hi evidence by way of affidavit Ex. RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 5 of 15 D2W1/A. He relied upon the documents i.e. (i) copy of extract of resolution dated 02.09.2017 Ex. D2W1/B, (ii) office copy of reply to the legal notice dated 24.04.2017 Ex. D2W1/C, (iii) catalogue Ex PW2/D1, (iv) service reports Ex. PW2/D2 and Ex. PW2/D3, and (v) data logger report Ex. PW2/D4. DW1 was cross-examined by Ld. Counsel for the plaintiff.
9. The defendant No. 2 examined Sh. Abhay Kumar as D2W2 who tendered hi evidence by way of affidavit Ex. D2W2/A. He deposed that he was technician of defendant No.2. He deposed that on receipt of the complaint, he visited Rohit Ice Cream, Durga Colony, Opposite Power House, Jhaggar Road, Rewari, Haryana on 28.03.2017 and he checked the working temperature of BFD315 Sr. No. BFD01700011603070001 of the plaintiff and contacted PW2 on 28.03.2017. He identified the data logger report of the temperature test conducted by him on the said machine BFD315. He relied upon the documents i.e. (i) service report dated 28.03.2017 Ex. PW1/D3, and (ii) data logger report Ex. PW1/D4. D2W2 was cross-examined by Ld. Counsel for the plaintiff.
10. The Ld. Trial Court decided the issues in favour of the defendant No.2 and against the plaintiff by holding that the plaintiff could not prove any defect in the refrigerator in view of the service reports which were admitted by PW2. It was also held by Ld. Trial Court that even though, the plaintiff has alleged that he was delivered a wrong product, serial number of the product booked and the one delivered were identical.
11. The impugned judgment is assailed on the grounds that the findings of the Ld Trial Court on issue no. 1 is absolutely RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 6 of 15 wrong. That the Ld Trial Court has wrongly held that the plaintiff has alleged all the dealing with defendant No.1 and leveled the allegations against the defendant No.1 as such there is no privity of the contract and defendant No.2. That the findings of the Ld Trial Court is based upon the fact that the appellant has failed to determine the gist of the appellant as the appellant has replaced the order defendant No.1 Elanpro Blast Freezer 300 on 06.03.2017 and the defendant No.1 issued a receipt bearing No. 5528 for Elanpro Blast Freezer 300 and also received the amount of Rs. 1,49,200/- (Rupees One Lacs Forty Nine Thousand Two Hundred Only) in respect of the Elanpro Blast Freezer 300. That the Ld Trial Court failed to appreciate that the evidence and the documents exhibited by the appellant clearly shows the difference between the Elanpro Blast Freezer and Chestshowcase BFD315. That the Ld Trial Court failed to appreciate the evidence adduced by the appellant and the cross examination of the defendant evidence in which D2W2 during cross examination admitted the fact that it is extra cool freezer but he could not say that this was a blast freezer. That he further deposed that the machine was used to store the product at the temperature minus 20 degree and as such the witness D2W2 admitted this fact that the product chestshowcase Freezer was only used to store the product at the temperature minus 20 degree, whereas the product Elanpro Blast Freezer 300 is a machine used for rapid chilling and freezing for food item at the temperature about minus 40 degree. That the Ld Trial Court failed to appreciate that the defendant No.1 was proceed ex-parte by whom the receipt dated 06.03.2017 was issued for Elanpro Blast Freezer and it failed to appreciate the document Ex. D2W1P from which it is crystal RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 7 of 15 clear that the product sent by the defendant No.1 and 2 to the plaintiff/appellant was Chest Showcase Freezer. That Ld Trial Court did not appreciate the fact that when the defendant No.1 was already proceed ex-parte by Ld. Trial Court then no question would arise to disbelieve the evidence of the appellant's case and Ld. Trial Court did not appreciate fact that the document Ex.D2W1/P was issued by the defendant No.1 and there is no ground to disbelieve the receipt. That Ld. Trial Court failed to appreciate the fact that the case of the appellant was proved by the plaintiff through evidence and documents which was exhibited by the plaintiff and by th0se documents, the case of the plaintiff was proved. That Ld. Trial Court failed to appreciate the fact that the receipt dated 06.03.2017 shows that the appellant purchased the freezer (Elanpro Blast Freezer) by way of description and the case of the appellant was covered by section 15 of Sales of Goods Act. That Ld. Trial Court failed to appreciate the fact as and when the appellant received the delivery, the appellant immediately informed the defendant No.1 about the wrong delivery and lodged a complaint with defendant No. 1. That Ld. Trial Court has wrongly interpreted the documents Ex D2W1/P1 and P2 and assumed that the difference between two models from the document Ex.D2W1/P1 receipt dated 06.03.2017 by which the appellant booked and made the payment to defendant No.1 in respect of the freezer (Elanpro Blast Freezer) and Ex.D2W1/P2 by which was the freezer was delivered by the defendant No.2. That Ld. Trial Court failed to appreciate that the fact that there is a lot of difference between the two product i.e. Elanpro Blast Freezer and Chest Showcase Freezer and the above said fact was duly proved by the appellant RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 8 of 15 by pleading, evidence and exhibited documents, the working style, capacity and physical appearance of both product are different and the same was proved by the cross examination of the D2W1, and D2W2 and PW2. That Ld. Trial Court has wrongly come to the conclusion that suit filed by the appellant does not under the remedy under section 39 Specific Relief Act. That Ld. Trial Court failed to observe that as per the section 24B of Sales of Goods Act, the appellant immediately informed the defendant No.1 about the wrong delivery, but it was the defendant No.1 who manipulated the things. That Ld. Trial Court has wrongly come to the conclusion that the appellant accepted the wrong delivery i.e. Chest Showcase Freezer as per the section 42 Sales of Good Act 1930 which is clear from the complaint raised by the appellant to defendant No.1 about the wrong delivery instead of Elanpro Blast Freezer. That Ld. Trial Court has wrongly come to the conclusion that the appellant would have to prove the factum of wrong delivery, which was duly proved by the appellant by placing the Ex.D2W2/P1 and P2 and it was the case of deemed breach of the warranty as per section 13 of Sales of Good Act, 1930.
12. I heard the arguments advanced and perused the record.
13. The case of the appellant/plaintiff is that he booked Elanpro Blast Freezer BFD315 having Sr. No. BFD017200011603070001 with defendant No.1 but defendant No.1 delivered a different machine altogether i.e. Chestshowcase BFD315 which was not only broken but was also defective and did not reach the assured cooling levels. Since, the dispute RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 9 of 15 revolves around the contract of sale of a good, it is relevant to take into consideration section 41 and 42 of Sale of Goods Act, 1930, which read as under:
"41. Buyer's right of examining the goods.--(1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.
42. Acceptance.--The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
As per the provision of section 41, the plaintiff not having inspected the goods in question prior to delivery, had a right to inspect the case on delivery and report defects within a reasonable time of delivery. If not rejected within reasonable time, section 42 stipulates that the plaintiff would be deemed to have accepted the goods. In the present case, upon delivery of the refrigerator, the plaintiff after having inspection and noting that the good delivered was not as per the agreement, did not return the machine nor raised any objection rather put the machine to use. The act of the plaintiff in using the refrigerator knowing that it was not of such description which was agreed upon, was such 'which was inconsistent with the ownership of the seller'. Further, the plaintiff raised the issue of misdescription of the freezer only on 15.04.2017 i.e. when he sent legal notice Ex. PW1/3 to the defendants after having purchase the same on 16.03.2017. In the RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 10 of 15 circumstances of the case, the period of about one month cannot be said to be 'reasonable' so that the plaintiff would be entitled to reject the delivery within the meaning of section 42 of the Sale of Goods Act, 1930. The difference in models of a refrigerator, as claimed by the plaintiff, was not a defect which would not have discovered by the plaintiff immediately upon delivery. Rather, the plaintiff himself has stated in the plaint that upon delivery of the freezer, he noticed that the model delivered was different from what was agreed to be purchased by him and that it was broken. Having, noticed the machine and its condition upon its delivery, the plaintiff chose to accept the same. Thus, the plaintiff cannot claim that he is entitled for rejection of the refrigerator on the ground of misdescription of goods.
14. The appellant has relied upon section 15 of the Sale of Goods Act, 1930 to contend that the contract of sale of the freezer was sale by description and thus, he is entitled for replacement. Even if it is to be assumed that it was a sale by description, the contention is misconceived because the plaintiff accepted the delivery and did not reject the same as aforesaid. Further, the plaintiff has not been able to explained how the serial numbers of the freezer as shown in Ex. D2W1/P2 and Ex. PW1/2 are same. There is a specific observation of Ld. Trial Court in this regard which has not been explained by the appellant/plaintiff. If the plaintiff purchased the machine by description and when the machine delivered to the plaintiff was having the same model number, without anything else proved by the appellant/plaintiff to the contrary, there is a reasonable ground to presume that the two machines were one and the same.
RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 11 of 15
15. It is also the case of the plaintiff that the refrigerator supplied to him was defective since it was not cooling below
-40°C as per the assurance given by the defendant No.1. The appellant/plaintiff has not been able to prove that there was an express assurance given to him either by defendant No.1 or defendant No.2 that the freezer would achieve temperature below
-40°C or that the description of the machine itself was such that it ought to have reached -40°C in its normal functioning. The plaintiff has maintained that he agreed to buy a 'Blast Freezer' but the product delivered used to take long time to cool. It is relevant to note that PW2 did not dispute the genuineness of the service reports Ex. PW2/D2, Ex. PW2/D3 and data logger report Ex. PW2/D4. These reports were duly proved by D2W2. The service reports Ex. PW2/D2 and Ex. PW2/D3 specifically records that the machine was working normally. Nothing was repaired or replaced, and no defect was found by the engineer. These reports also belies the averment made in the plaint that on attending the machine by the engineer of defendant No.2, he informed the plaintiff that the machine was having manufacturing defects. The data logger report Ex. PW2/D4 clearly shows that the freezer was achieving temperatures as low as -37°C. The time taken to achieve that temperature was also not very far off so that it could be said that it was not fit for its usual purpose i.e. cooling at low levels. The data logger report Ex. PW2/D4 also shows that despite power cuts, the machine was reaching low levels of temperature viz, as low as -37°C. It is relevant to note here that PW2 himself admitted during his cross-examination that data logger showed the freezer was working satisfactorily. The plaintiff has been miserably failed to show any defect in the RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 12 of 15 freezer rather admitted to its normal functioning.
16. As per section 16 of Sale of Goods Act, 1930, there is no implied warranty or condition as to the quality or fitness of the goods for any particular purpose. However, the provision is subject to certain exceptions. Section 16 of Sale of Goods Act, 1930, reads as under:
16. Implied conditions as to quality or fitness.--Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:--
(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose:
Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. (2) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchantable quality:
Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.
(3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
In the present case, the appellant/plaintiff has not been able to prove that there was an express condition to the sale that the freezer would achieve a specific temperature within a given period of time. The fact that the freezer achieved temperature as low as -37°C within a reasonable period of time clearly shows that the freezer was reasonably fit for cooling at low levels. Thus, assuming that there was an express condition to RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 13 of 15 the contract of sale as suggested by the plaintiff, the product has been shown to be 'reasonably fit for such purpose'. The plaintiff has not been able to make his case under any of the exception of section 16. The entire emphasis of the plaintiff has been that the description of the freezer in the invoice Ex. PW1/2 and Ex. D2W1/P2 was different but the plaintiff has not been able to prove any defect in the functioning of the machine.
17. It is urged by the appellant/plaintiff that in so far as defendant No.1 is concerned, the plaintiff's case has to be accepted because the proceeding against defendant No.1 was ex- parte as he did not join the proceedings of the case despite being served with the summons. A bare perusal of the plaint shows that the plaintiff has instituted the suit against proprietorship firm without impleading its proprietor. The fact that defendant No.1 is a proprietorship firm is clear from the documents Ex. PW1/2 and Ex. D2W1/P1 (colly). A proprietorship firm has no legal entity which can sue or be sued in its own name. Reliance in this regard can be placed on Miraj Marketing Corporation Vs. Vishaka Engineering & Anr., 115(2004)DLT471, and Svapn Constructions Vs. IDPL Employees Co-operative Group Housing Society Ltd. & Ors., 127(2006)DLT80. Therefore, the suit of the plaintiff was defective against defendant No.1 since it was instituted against a proprietorship firm without impleading its proprietor.
18. In view of reasons given above, the present appeal against the impugned judgment and decree fails. The same is accordingly dismissed and the impugned judgment and decree dated 05.05.2022 is upheld.
RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 14 of 15 The appeal file be consigned to the Record Room after due compliance.
Trial Court Record be sent back along with a copy of the judgment. Digitally signed by PRANAV Announced in open Court PRANAV JOSHI Date:
on this 22th Day of July, 2024 JOSHI 2024.07.22
16:22:29
+0530
(PRANAV JOSHI)
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS/DELHI
RCA No. 12/2022 Rajinder Singh Vs. Hindustan Refrigeration Store & Anr. Page No. 15 of 15