Delhi District Court
(West) vs Dcm Sriram Consolidated Ltd on 15 March, 2012
1 CS No. 269/12
IN THE COURT OF SH. SUSHANT CHANGOTRA: CIVIL JUDGE
(WEST)
DELHI
SUIT NO. 269/12
Frontline Fabrics Pvt. Ltd.
S382, Panchsheel Park, New Delhi17
.....Plaintiff
Versus
DCM Sriram Consolidated Ltd.,
18,Barakhamba Road, New Delhi.
..... Defendant
Date of filing of the Suit : 19.03.1997
Date of decision : 15.03.2012
Suit for recovery of Rs. 2,05,790.52 paise
JUDGMENT
1. The brief facts of the case of the plaintiff are that it is a private limited company dealing in the export of high quality fabrics at 2 CS No. 269/12 Delhi. The plaintiff is having a reputation for meeting its commitment in the business circles. The defendant is manufacturing, processing and printing fabrics. The defendant company manufactures printed and other fabrics for exporters and traders. It also processes the fabrics supplied to them by the exporters as per their requirements. The processing charges are being charged for any fabric which is being processed by the defendant. The plaintiff entered into business transaction and defendant agreed to print and process the fabric supplied by the plaintiff as per plaintiff's requirements. The defendant assured the plaintiff of the best quality of fabric printing. On the basis of representation of defendant, the plaintiff entered into certain transactions with the defendant for supplying fabric for printing. In this regard mutual running account was maintained between the parties.
2. The plaintiff supplied 8447.50 meters of grey cotton 30's sheeting type of fabric for printing vide challan no. 1285 dated 10.08.91, challan no.1289 dated 16.08.91. The plaintiff also supplied cotton voil of 2208 meters by challan no. 875 dated 19.09.91 to the defendant for printing. Out of 8455.50 meters of 3 CS No. 269/12 grey cotton 30's sheeting fabric. The plaintiff received 1953 meters of printing fabric on 16.09.91. Thus, there was shortage of 6494.50 meters of grey 30's sheeting fabric. The cost of the shortage of fabric is Rs. 81,181.25 paise.
3. The 1953 meters of received printed fabric was defective and and was not as per order placed by the plaintiff. The printing and processing was done contrary to the representation given by the plaintiff and was not under strict quality control. It was of no use due to which the export order of the plaintiff had to be cancelled and the plaintiff suffered losses. The plaintiff requested the defendant to collect the defective fabric from the plaintiff premises but the fabric still lying with the plaintiff. The cost of rejecting fabric inclusive of printing of fabric charges charges is Rs. 33,201/.
4. As per statement of account of defendant supplied to the plaintiff, the defendant raised a bill of Rs. 36,163/ for printing 30's sheeting fabrics and cotton voil. The plaintiff till date has made payment of three cheques and cash payment on 30.07.94, credited a sum of Rs. 24,344/ in the account of defendant. The last payment was made by the plaintiff vide cheque no. 16991. The defendant has to pay a total sum of Rs. 1,14,382.25 paise for grey 4 CS No. 269/12 30's sheeting fabrics including the cost of short supply of fabric of 6494.50 meters as well as cost of defective printed fabric.
5. The plaintiff also averred that out of 2208 meters of cotton voile, the plaintiff has received back 1466.15 meters and 41.85 meters of fabric is still lying with the defendant. The cost of said fabric is Rs. 11,869.60 paise. Thus, the plaintiff averred that the defendant is liable to pay sum of Rs. 1,26,251.85 paise for short supply of fabric and defective printing and sum of Rs 79,538.67 paise and 21 % interest per annum on the principal amount. The cause of action arose on 16.09.91 and the same is continuing. This court has territorial jurisdiction to try this case. Thus, the plaintiff prayed for decree of sum of Rs. 2,05,790.52 paise alongwith interest @ 21 % per annum, with pendente lite and future alongwith costs.
6. The defendant appeared and filed written statement. The defendant took several preliminary objections such as suit being barred by limitation and lack of cause of action. The defendant also took preliminary objection that the suit has not been signed, filed and verified by authorized person. Suit is not properly valued for purpose of court fees. On merits, it has been denied that 5 CS No. 269/12 plaintiff is a private company or it is engaged in export of fabric or it has any reputation in the business circles. The business of defendant was admitted to be correct. The factum of certain business transactions between the plaintiff and defendant and the representation as well as maintenance of running account were admitted. It was stated that plaintiff entered into business transaction with defendant and the defendant agreed to process and provide 10,000 meters of cotton grey fabric inpigment @ Rs 4.75 per meters. It was also agreed by the plaintiff that in normal course of practice standard shrinkage of 7 % will be accepted. These conditions were reduced into writing but plaintiff failed to sign the same and thus there was no valid agreement between the parties. The contents of plaint to the extent that some gray material was received from plaintiff was admitted. It has been contended that the contents of the pleadings are vague and unclear, hence they are denied. It was also denied that the plaintiff delivered 8447.5 meters of 30's sheeting type of gray material or it delivered 2208 meters of cotton voil to the defendant. It was further admitted that 1953 meters or finished goods as specified by the plaintiff were delivered to him. The fact of shortage of 6494.5 meters of 6 CS No. 269/12 fabric was denied.
7. It was also denied that 1953 meters of finished fabric was not as per order. The averments regarding loss to plaintiff was also denied. It was also denied that plaintiff requested the defendant to take back material. It was asserted that grey fabric received from the plaintiff was of sub standard quality and the damage to the tune of 7 % was conceded by the plaintiff. Thus, if at all there was any defect it was on account of grey material supplied by plaintiff being of sub standard quality. The other averments including payment of cheques etc were denied. It was also denied that the defendant is under obligation to pay any money to the plaintiff. It was also denied that defendant received 2208 meter of cotton voil. The remaining averments were also denied being incorrect. Thus, the defendant prayed for dismissal of the suit with costs.
8. The plaintiff filed replication denying the preliminary objections and the objections on merit. The plaintiff averred that the plaint is signed, verified and filed by Mrs. Uma Khemka, Director of the plaintiff company, duly authorised on behalf of company to institute the present suit.
9. On the basis of pleadings of the parties following issues were 7 CS No. 269/12 framed on 02.07.02:
1. Whether plaintiff is entitled for recovery of Rs. 2,05,790.52 paise with interest, if so, at what rate? OPP
2. Relief
10. In order to discharge the onus, plaintiff examined PW1 Sh. Ashwini Khemka. This witness tendered his affidavit Ex. PW1/A in the examination in chief. In his cross examination he deposed that he is one of the directors of the plaintiff company. He is aware of the facts of the case. He has been authorised to depose in the present suit vide resolution dated 27.03.03 by the plaintiff company. He proved the resolution as Ex. PW1/1. He further deposed that the suit has been signed, verified and instituted by Ms. Uma Khemika, director of plaintiff company. She was authorised to do so vide resolution dated 23.05.94. He proved the said resolution as Ex. PW1/2. Then he reiterated contents of the plaint and also proved the challans as Ex. PW1/3 to Ex. PW1/5. He proved the agreement dated 10.08.91 signed by the parties as Ex. PW1/8. He further deposed that the defendant is liable to pay interest @ 21 % per annum and even the defendant claimed interest @ 21 % on the delayed payment, if any. He further 8 CS No. 269/12 deposed that said clause is mentioned in all the invoices raised by the defendant.
11. He further deposed that after the printing job work by defendant, plaintiff gave the defective printed fabric for plastisol printing to M/s Synergy processing. The said firm could not carry out said printing work of the defendant. The entire fabric was rendered useless by defendant causing losses to the plaintiff. He proved the delivery challan Ex. PW1/11 and Ex. PW1/12 vide which the fabric was supplied to M/s Synergy Proessing Pvt. Ltd. He also proved letter dated 20.09.91 as Ex. PW1/13 by which M/s Synergy Proessing Pvt. Ltd. showed their inability to carry out the plastisol printing on the fabric due to defective printing job of the defendant. This witness was cross examined at length.
12. Plaintiff company also examined PW2 Yash Kumar who proved his affidavit as Ex. PX. In his affidavit he also deposed that he is one of the directors of M/s Synergy Proessing Pvt. Ltd. He has done his B. Tech from IIT Kanpur and MBA from IIM Calcutta. He further deposed that vide delivery challan as Ex. PW1/11 and Ex. PW1/12 his company was assigned printing job work by the plaintiff. They were suppose to carry out plastisole printing on the 9 CS No. 269/12 printed fabric. The printed fabric supplied to the plaintiff was defective and was not fit for over printing. He also proved letter Ex. PW1/13. This witness was also cross examined at length. Then the plaintiff evidence was closed vide order dated 08.01.04.
13. The defendant examined DW1 Sh. O.P. Kakkar. This witness also tendered his affidavit Ex. DW1/A. He also proved the other copy of agreement between the parties as Ex. DW1/1. He also deposed that original agreement was duly singed by the parties. The said document was in the record of account department. A fire broke out in the account department on 26.11.94 and most of the record including the original copy of order/agreement, bills, number of computers etc. were destroyed. However, some copies have been found in other records. He also proved the police report as Ex. DW12 and public notice issued in this regard as Ex. DW1/1. He also proved copy of the some bills and statements of accounts signed by the account manager as Ex. DW1/4 to Ex. DW1/12. This witness was cross examined at length on several occasions. Thereafter defendant closed evidence on 18.07.09.
14. I have considered arguments and gone through the record. My issue wise finding is as follows:
10 CS No. 269/12
ISSUE NO.1
15. The onus to prove this issue was on the plaintiff. Ld. counsel for plaintiff has vehemently argued that the plaintiff has proved on record the agreement between the parties i.e. Ex. PW1/8. This agreement has been signed by both the parties. The plaintiff has also proved the challans for each of the goods that were sent to the defendant. He further argued that in the written statement the defendant has given an evasive denial about the quantity of the goods supplied to them. Moreover, as per the gate pass admitted by the defendant i.e Ex. PW1/D1 the total value is Rs. 34,564.67 paise. Admittedly 1953 sq. meters of the goods were returned to the plaintiff. He further argued that no other gate pass was available with him as the gate pass was issued when the goods are sent out of the factory. He further argued that oral testimony of the plaintiff has not been rebutted by the defendant and PW2 has also proved that the goods returned were of unfit quality. Thus, the suit of the plaintiff is liable to be decreed. He also placed reliance on law laid down in Indian Oil Corporation Ltd. vs. Union of India, 14l0 (2007) DLT 571, United Bank of India vs. 11 CS No. 269/12 Naresh Kumar, AIR 1997 SC 3, Laxmi Chand and Bal Chand and Ors. vs. Ashok Leyland Ltd. and Ors, 2011(6) ALT 282 and in Kirpal Singh and anr. vs. Aas Kaur and others, AIR 1997 P&H 240. Thus he prayed that the suit may be decreed.
16. On the other hand, Ld. Counsel for defendant vehemently argued that the suit is not maintainable because the plaintiff has not been able to prove that it is a private limited company. The defendant has taken preliminary objection in this regard. The plaintiff did not produce certificate of incorporation nor they placed any such copy on record. The plaintiff also did not produce the minute books. He argued that the agreement between the parties was not signed. He further argued that the plaintiff has not pleaded that Smt. Uma Khemka is the director of the company and is authorised to sign on its behalf. The counsel for defendant also argued that the evidence cannot be led beyond pleadings and as such any evidence in excess of pleadings cannot be read by the court. The plaintiff has not produced on record the gate pass to show that the goods were supplied by him to the defendants. He further argued that there is no gate pass visavis the challans 12 CS No. 269/12 Ex.PW1/3 to Ex. PW1/5 has been proved. PW1 in his cross examination admitted that there was no seal of receipt of goods on Ex. PW1/3 to Ex. PW1/5. No challan has been proved on record to show the delivery of cotton voil to the defendant. The rate of the fabric has not been proved by the plaintiff.
17. He also argued that there was no proof that the fabric returned to the plaintiff was defective. The plaintiff did not mention in his plaint that the goods were sent to M/s Synergy processing and it was declared by the said M/s Synergy processing to be unfit and defective. The evidence led by the plaintiff is beyond pleadings and cannot be read. Moreover, PW2 in his cross examination admitted that the witness admitted that he was not appearing as an expert witness. He also could not say whether the material received by their company was same which was returned by the plaintiff to the defendant. No testing report regarding the quality of fabric has been proved on record. Thus, he argued that the goods were not defective. He placed reliance on the law laid down in Binani Metals Ltd. vs UOI, 1991 Rajdhani Law Reporter 86, Parkash Rattan Lal vs. Mankey Ram, 166 (2010)DLT 629, 13 CS No. 269/12 Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar and Ors, AIR 1996 SC 112, Bondar Singh vs. Nihal Singh and Ors. AIR 2003 SC 1905, Chanan Kaur vs. Kartari and Ors AIR 2004 P&H 331 and Siddik Mahomed Shah vs. Mt. Saran and Ors, AIR 1930, Privy Council 57 (1). Finally he requested that suit may be dismissed with costs.
18. Having considered the arguments, first of all I shall deal with of the objection raised by the defendant that the suit is not maintainable because the plaintiff has failed to prove that it is a private limited company. Though, the plaintiff has not proved on record the certificate of incorporation, Memorandum and Articles of Association and certificate of incorporation issued by the Registrar of Companies, but there is oral evidence of the plaintiff that it is a private limited company. At the same time perusal of Ex. PW1/D1 i.e gate pass admitted by the defendant bears the name and address of the consignee as M/s Front Line Fabrics Pvt. Ltd. In the documents produced on record by the defendant i.e from Ex. DW1/5 to Ex DW1/12 the plaintiff is mentioned as M/s Front Line Fabrics Pvt. Ltd. Even the agreement between the parties 14 CS No. 269/12 proved on record by the defendant i.e. Ex. DW1/1 bears the name of plaintiff as M/s Front Line Fabrics Pvt. Ltd. Thus the entire documentary evidence produced by the defendant shows this the defendant admitted that the plaintiff is a private limited company. Section 158 of the Indian Evidence Act clearly provides that, the facts which are admitted need not to be proved. In Sita Ram vs. Santanu Prasad AIR 1966 SC 1697, It has been held that," The admission of a document means admission of facts contained in the documents". Thus, when the defendant by way of documentary evidence admitted the plaintiff as a private limited company, therefore, there was no necessity to prove the fact that plaintiff is a private limited company. The purpose and object of proving that the plaintiff is a private limited company was only to ascertain whether the plaintiff can sue for recovery. Since the defendants admitted the plaintiff as a private limited company, therefore, the formal proof of the plaintiff that it is a private limited company was not warranted as per law. The judgment so relied upon by the Ld. Counsel for defendant given in Binani Metals Ltd. Vs. Union of India, 1991 RLR, 86, does not apply to the fact 15 CS No. 269/12 of the present case as in the said case there was no admission that the plaintiff was a private limited company. Hence, the facts of the said judgment are different, therefore, the said law does not apply to the facts in the present case at hand.
19. The entire case of the defendants besides the objection that the plaintiff is a private limited company is that the defendant had business transactions with the plaintiff. In the entire written statement there was no even a single averment that the defendants were not aware that plaintiff is not a private limited company. Thus, in view of the admitted documents there is admission on the part of the defendant that the plaintiff is a private limited company.
20. The second technical objection of the defendant is that it has not been pleaded that the present suit has been filed by one of its director, who was authorized to institute the suit. In the present case though, the plaintiff has not mentioned in the body of plaint that Smt. Uma Khemka is director and she has been authorised to file and institute the present suit, but, in the replication there is a categorical mention that the plain is signed, verified and filed by Ms. Uma Khemka, Director of the plaintiff company, duly 16 CS No. 269/12 authorised on behalf of the company to institute the present suit. The plaint has also been signed by Smt. Uma Khemka. In Salig Ram And Anr. vs Shiv Shankar And Ors. Hon'ble Punjab Haryana High Court held that, "It is a wellsettled rule that replication is a part of the pleadings and anything which is specifically stated in the replication and for the first time, has to be controverted, and if it is not contravened and is allowed to pass it must be assumed that the plea raised is accepted. If any authority on the point is needed, reference may be made to S. D. G. Pandarasannidi v. State of Madras, AIR 1965 SC 1578 and S. A. Sattar v. Union of India, AIR 1970 SC 479. Keshav Metal Works And Anr. vs Jitender Kumar Verma on 15 December, 1993 Equivalent citations: 1994 IAD Delhi 81, 1994 (28) DRJ 206, 1994 RLR 126
21. Moreover, the letting purpose was made further clear in replication which was filed under order of the court. It is a well established principle of law that the plea taken in replication forms part of the pleadings particularly when the replication was filed at the instance of the court. Moreover, if all the ingredients are not 17 CS No. 269/12 mentioned in the eviction petition, but are pleaded in the replication, that would form part of the pleadings and the petition can not be rejected for want of cause of action.Similar view was expressed by the Supreme Court in the case of Srila Sri Subramania Desika Gnanasambanda Pandarasannidi vs .State of Madras and Anr., . In that case, it was observed that if any of the ingredient is not mentioned in the petition but pleaded in rejoinder affidavit and the respondent had full notice of the same, then petition cannot be rejected. The decision of the Apex Court was followed by this court in the case of Man mohan Mehra vs J.S. Butalia reported in 1983(24) DLT 165.
22. In Keshav Metal Works And Anr. vs Jitender Kumar Verma 1994 IAD Delhi 81, 1994 (28) DRJ 206, 1994 RLR 126Moreover, if all the ingredients are not mentioned in the eviction petition, but are pleaded in the replication, that would form part of the pleadings and the petition can not be rejected for want of cause of action. In Srila Sri Subramania Desika Gnanasambanda Pandarasannidi vs .State of Madras and Anr., Hon'ble Supreme Court observed that. "if any of the ingredient is not mentioned in the petition but 18 CS No. 269/12 pleaded in rejoinder affidavit and the respondent had full notice of the same, then petition cannot be rejected". The decision of the Apex Court was followed by this court in the case of Man mohan Mehra vs J.S. Butalia reported in 1983(24) Dlt 165.
23. Thus, in view of the settled proposition of law, since the replication is part of pleading and in the pleading there is categorical mention that Smt. Uma Khemka is a director who has been authorised to institute the present suit, therefore, the defendants were not taken by surprise to the extent that the suit has not been filed by authorised person. Moreover, at the very outset resolution i.e. Ex. PW1/2 vide which said Smt. Uma Khemka director of the plaintiff company was authorised to sign, was annexed with the plaint. Both the parties have led the evidence on the basis of the pleadings in the plaint as well as replication.
24. I have gone through the judgments filed by the counsel for defendant i.e. Binani Metals Vs UOI 1991 Rajdhani Law Reporter 86, Parkash Rattan Lal vs. Mankey Ram, 166 (2010)DLT 629. Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar and Ors, AIR 1996 SC 112, Bondar Singh vs. Nihal 19 CS No. 269/12 Singh and Ors. AIR 2003 SC 1905, Chanan Kaur vs. Kartari and Ors AIR 2004 P&H 331 and Siddik Mahomed Shah vs. Mt. Saran and Ors, AIR 1930, Privy Council 57 (1). These judgments do not apply to the facts of the present case. In none of these cases there was any specific pleadings with respect to the material fact in the replication. However, in the present case there is clear averment of the facts in replication regarding which evidence has been lead.
25. Thus, I do not find force in aforesaid contention that the suit is not maintainable because there is no pleading that it has been signed by the director who is authorised by the company. Smt. Uma Khemka was the director of the plaintiff company and she was authorised by resolution Ex. PW1/2, signed the pleadings and institute the case on behalf of plaintiff company.
26. The said suit was properly instituted and properly signed by one of its Directors. Even otherwise in Indian Oil Corporation Vs. Union of India, 140 (2007) DLT 571, it has been held that, " As a company is a juristic entity, it can duly authorise any person to sign the plaint or written statement on its behalf and this would be 20 CS No. 269/12 regarded as sufficient compliance within the provision of Order 6 Rule 14 CPC." Further in Shriram Chits Limited vs. Chippa Satya Narayana and Ors., 2007 (6) ALT 209, Honble Andhar Pardesh High Court held that, " Reading Order 6 Rule 14 together with Order 29 Rule 1 of CPC, it would appear that even in absence of non formal letter of authority or power of attorney having been executed by a person referred to another Rule 1 of Order 29 of CPC could by virtue of office which held, signed and verified pleadings on behalf of the corporation". Thus, from every aspect it cannot be said that the suit of the plaintiff is liable to be dismissed on this score.
27. Now coming on to the merits of the case as to whether the plaintiff had supplied the goods to the defendant as claimed by him. The plaintiff has specifically pleaded that he had supplied 8447.50 meters of grey cotton 30's sheeting type of fabric and 2208 meters of cotton voil. In this respect in the written statement the defendant has replied that, "he admits to the extent that grey material was received from the plaintiff. The contents of the para are vague, unclear hence denied." Thereafter, it has been formally 21 CS No. 269/12 denied that the plaintiff delivered 8447.5 meters of grey cotton 30's sheeting type of material or 2208 meters of cotton voil to the defendant. It is further pleaded that the plaintiff be put a strict proof of each and every averment made in the para under reply.
28. Thus the perusal of the written statement clearly depicts that the denial of the defendant is not specific. In this regard order 8 Rule 3, Rule 4 and 5 of CPC assumes very high importance. The said provision are reiterated below : R.3. Denial to be Specific. " It shall not be sufficient for a defendant in his written statement to denygenerally the grounds alleged by the plaintiff; but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages".
R.4. Evasive denial. "Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he 22 CS No. 269/12 must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
R.5. Specific denial. a (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability".
29. Thus, in such circumstances, when the defendants have given evasive reply regarding the receipt of goods, the case of the plaintiff is deemed to be admitted.
30. Even otherwise if it is admitted that certain transactions took place between the parties. It is also admitted by the defendant that an agreement was executed between plaintiff and defendant for processing the goods. Though, the defendant has taken a plea in Para no. 3 and 4 of written statement that, " It was not signed, therefore, there is no valid agreement", but DW1 in his examination in chief has stated that the original agreement was 23 CS No. 269/12 destroyed due to fire in accounts department on 26.01.94 and he also proved the copy of the same retained as Ex. DW1/1. He further deposed that the original agreement was duly signed by the parties. Thus, the evidence led by the defendant is contradictory to the plea taken in the written statement. It is interesting to note that there are two copies of agreement on record. The first is Ex. PW1/8 i.e produced by plaintiff and the second is Ex DW1/1. The agreement Ex. PW1/8 bears the signatures of both the parties. Thus, it is proved on record that there was a valid agreement for printing of 10,000 bales of fabric. The defendant also admits that he returned 1953 sq. meters of fabric to the plaintiff in pursuance of the aforesaid agreement. The dispute remains as to whether the defendant had returned the remaining 6494/5 meters of grey cotton 30's sheeting type fabric to the plaintiff or not.
31. The plaintiff has proved the challans Ex. PW1/3 to Ex. PW1/7. It has also been stated by the plaintiff in his examination in chief that the vehicle of the defendant used to come to the premises of the plaintiff for picking up goods. Though, such challans do not bear any endorsement regarding the receiving of the goods, but no suggestion has been put to the plaintiff in his cross examination 24 CS No. 269/12 that the goods were not taken by the defendant and no such vehicle of the defendant used to pick up the goods. In absence of any suggestion in this regard, the said fact has gone unchallenged to the extent that vehicle of the plaintiff used to pick up goods from the premises of the plaintiff.
32. The arguments of the defendant, the plaintiff has not produced any other gate pass is without merits. The bare perusal of the gate pass Ex. PW1/D1 shows that the gate pass was issued for removal of excisable goods from a factory on payment of duty. It is admitted fact that the office of excise department was located just outside the premises of the defendant. In such circumstances, since the case of the plaintiff is that he was not returned any other goods, therefore, he could not have been any possession of other gate passes. Hence no question of taking adverse inference against the plaintiff arises.
33. The plaintiff has produced entire evidence which he could have possibly produced with respect to supply of grey cotton. He has also established that 8447.5 meters of grey cotton 30's sheeting type has been su29/02/2012pplied to the defendant. Even the DW1 in his cross examination has stated that meterage contended 25 CS No. 269/12 in each bill is given in Ex. PW1/12. He further stated that he does not know what happened to the balance cloth, if any supplied to the defendant. Thus, as per written statement and of version of this sole DW, they are also unsure about the exact quantity of goods supplied to them.
34. Though, DW1 has deposed that the plaintiff did not deliver 8447.5 meters of grey cotton 30's sheeting type material and there was no shortage of 6494.5 meters of fabric to the plaintiff by the defendant. However, in his cross examination he stated that he has never personally dealt with plaintiff company or any of it's directors. He does not have any personal knowledge of the case and he is deposing strictly basis of the record. Further in his examination in chief conducted on 09.11.07, he deposed that the defendant used to maintain the record of quantity received and delivered but the said record was destroyed in fire on 26.01.94. He also showed his ignorance as to whether in list of record which got destroyed in the said fire was prepared. Thus, since the DW was deposing only on the basis of record and the record itself was not available. Therefore, his testimony qua the fact that there was no shortage of 6494.5 meters comes out as false and is unbelievable. 26 CS No. 269/12 There is practically no rebuttal to the evidence of the plaintiff qua non delivery of 6494.5 meters of the fabric to the plaintiff.
35. The burden shifted on the defendant to establish that he had returned the goods. As per section 106 of the Evidence Act, "When any fact is especially within knowledge of any person, the burden of proving that fact is upon him". The defendant has not led evidence to show that they had returned 6494.5 meters of goods to the plaintiff.
36. As regard supply of 2208 meters of cotton voil the plaintiff has not proved on record any challan to show that the said goods were sent to the defendant. In his cross examination PW1 admitted that it is correct that he does not have proof either by means of challan or otherwise to show delivery of cotton voil to the defendant. Thus, the plaintiff has failed to prove that 2208 meters of cotton voil was supplied to defendant by them. Thus in view of the aforesaid discussion it has been established by the plaintiff that the defendant did not return 6494.5 meters of fabric to the plaintiff. However, he has failed to prove that it supplied 2208 meters cotton voil to the defendant.
37. The next question to be decided by this court is whether the 27 CS No. 269/12 goods returned by the defendant were defective or not. The case of the parties rest on the agreement to sell. In both the agreements to sell i.e. Ex. PW1/8 and Ex. DW1/1 the terms and conditions were agreed between the parties. One of the conditions was that in case of sale by sample, the seller shall furnish to the buyers two sets of signed samples for approval and buyer shall sign both the sets and return one of them to the seller which shall form the basis of contract. The quality of goods shall except in case by sale of sample or of construction, accord with the recognized standard of quality manufactured by the seller. In the plaint as well as in Para 4 of the examination in chief of PW1, it is mentioned that the defendant assured that printing/processing job would be strictly as per specification of the plaintiff. However, it is not mentioned in the entire pleadings or even in the evidence as to what was the specification so sought out by the plaintiff. Thus, plaintiff has failed to show as to what was the specification which was not fulfilled by the defendant.
38. Moreover, neither in the plaint or in the replication, the plaintiff has pleaded that he had supplied the goods to M/s Synergy processing. The only pleading is that the goods were defective and 28 CS No. 269/12 not in terms of order placed by the plaintiff. Arguments of the counsel for plaintiff in this regard that as per order 6 Rule 2 of CPC only facts are to be29/02/2012 pleaded and not evidence is without merits. The facts as mentioned in the said order relates to material facts. The averments that the plaintiff supplied the goods to M/s Synergy processing and they were declared defective by said M/s Synergy processing is very relevant fact and therefore, was required to be pleaded because it formed the the source of information that the goods were defective and as such was a material fact. The evidence of the plaintiff in this regard is also in contradiction to the averments of plaint. In the plaint it has been averred that the goods were defective because they were not as per the terms specified by the plaintiff. Whereas the evidence is that some other person i.e M/s Synergy processing declared that it is unfit for further processing. The ratio as held in Binani Metals Vs UOI 1991 Rajdhani Law Reporter 86, Parkash Rattan Lal vs. Mankey Ram, 166 (2010)DLT 629. Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar and Ors, AIR 1996 SC 112, Bondar Singh vs. Nihal Singh and Ors. AIR 2003 SC 1905, Chanan Kaur vs. 29 CS No. 269/12 Kartari and Ors AIR 2004 P&H 331 and Siddik Mahomed Shah vs. Mt. Saran and Ors, AIR 1930, Privy Council 57 (1), clearly bar the evidence led by the plaintiff to show that goods of 1953 sq. meters was defective.
39. Even otherwise DW2 is the only witness of the defendant who stated that goods were defective. This witness was not an expert witness. He did not produce any certificate of his qualification to show that he has indepth knowledge about the quality of fabrics. This witness also stated that he could not say whether the goods regarding which he gave opinion were the same which were returned by the defendant to the plaintiff. Thus, the plaintiff has failed to prove to the preponderance of probability that the goods of 1953 sq. meters returned by the defendant were defective.
40. This leads to the last question as to the price of the deficient grey cotton of 30' and sheeting fabric required to be returned to the plaintiff by the defendant. In this respect the plaintiff has not produced any direct evidence. In the form of bills visavis purchase of raw material i.e grey cotton 30's sheeting type fabric.
41. The plaintiff has produced on record the challans of delivery 30 CS No. 269/12 Ex. PW1/3 to Ex. PW1/5. The price per sq. meters is mentioned as Rs. 12.50 paise per meters. Even in the admitted gate pass Ex. PW1/D1 the rate per meter has been noted as 15.402. As mentioned above since the said document is admitted, therefore its contents are also admitted. The plaintiff has also been cross examined in this regard. In this regard he also stated that the rate of the grey material could have been Rs. 12.50 paise per meter at the time. DW1 in his cross examination has stated that he could not tell about the value of fabric at that time, the market value of similar material i.e grey material could be between Rs. 13/ to Rs. 17/ per meters. Thus, in view of the aforesaid proof of delivery challans, statement of plaintiff and the defendant as well as the mentioning of rate on Ex PW1/D1. The price as mentioned by the plaintiff of Rs. 12.50 paise per meter stands proved to the preponderance of pr29/02/2012obability.
42. The defendant has also raised the defence that 7 % of the shrinkage was accepted and acted upon by the parties at the time of agreement. It is worth while to note that 7 % shrinkage was accepted after the goods were to be returned. It was agreed considering the shrinkage of the fabric during the process of 31 CS No. 269/12 processing of the cloth. In the present case, there is no proof that 6494.5 meters of fabric was infact processed by the defendant. Thus, the question of reduction of 7 % of shrinkage does not arise. Since these goods were not returned or processed, therefore there is no occasion for considering the shrinkage of 7% for unreturned goods. The court cannot decide the question of shrinkage of 7 % in vaccum. Therefore the defendant is not entitled to deduct the same due @ 7 % from the value of 6494.5 meters of the fabric @ Rs. 12.5 per meters
43. The plaintiff is claiming interest @ 21 % per annum. In his affidavit PW1/A he has stated that he is entitled to interest for delay payment @ 21 % per annum because, the defendant itself claims pinal interest @ 21 % per annum. The documents Ex. DW1/5 to Ex DW1/11 show that there is specific clause of all the invoices of defendant that if the amount is not paid with 35 days, then the interest @ 21 % shall be charged. In the document Ex. DW1/12 the interest to be charged is shown as 21 % to 25 %. The documentary evidence of defendant itself shows, the defendant is claiming interest @ 21 % to 25 %.
44. However, there is no evidence that there was agreement of 32 CS No. 269/12 contractual rate of interest between the parties. In such circumstances, in view of proviso of section 34 of CPC, the plaintiff is only entitled to interest at which the money is lent by nationalised bank in relation to commercial transactions. It has been proved by the plaintiff that the goods were completely supplied to the defendant by 16.09.95. Considering that defendant by itself starts charging penal interest after 35 days, in my considered opinion period of 45 days is a reasonable period by which goods ought to have been returned by the defendant to the plaintiff. Thus, the plaintiff is entitled to interest @ 12 % per annum from 01.10.95 till the filing of the suit till its realisation of the sum of Rs. 81,181.25P for the non delivery of 6494.5 meters of fabric @ Rs. 12.50 paise per meter sum total of which is Rs. 81,181.25 paise.
45. Hence the plaintiff has proved this issue partly to the extent that the defendant is liable to pay Rs. 81,181.25 paise @ interest of 12 % per annum to him. This issue is partly decided in favour of the plaintiff and partly against him 33 CS No. 269/12 Relief
46. In view of the findings given on issue No.1 the suit of the plaintiff is partly decreed with cost for sum of Rs. 81,181.25P @ 12% P.A. from the 01101995 till the filing of the suit and for future interest @ 12% P.A. from the filing of the till its realisation. Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA) on 15.03.2012 Civil Judge6 (West) Delhi