Delhi District Court
M/S Ritu Stones Pvt. Ltd vs M/S Harcharan Dass Gupta on 6 April, 2013
1
IN THE COURT OF SHRI MANMOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 01
TIS HAZARI COURTS, DELHI
C.S. No. 03/2007
Unique ID no. 024018001442007
M/S Ritu Stones Pvt. Ltd.
D7, Rajouri Garden, New Delhi
Through its Director
Shri Prakash Chand Jain and
Authorised Signatory ....Plaintiff
Versus
1. M/s Harcharan Dass Gupta
Engineers & Builders 103,
Sai Bhawan, Ranjeet Nagar,
Patel Nagar, New Delhi.
2. Shri Dhanwant Rai Mittal
S/o Late Shri Harcharan Dass Mittal
R/o A357, Meera Bagh,
Paschim Vihar, New Dellhi.
3. Shri Lalit Mittal
S/o Shri Dhanwant Rai Mittal
R/o 6/210, Sunder Vihar,
Paschim Vihar, New Delhi87 ....Defendants
Date of institution of the suit : 02.01.2007
Reserved for judgment on : 01.04.2013
Date of pronouncement of judgment : 06.04.2013
JUDGMENT
1. In this suit for money recovery the plaintiff has propounded its C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 1 of 31 2 cause of action on the following bundle of facts: Pleadings
i) What the parties are: The Plaintiff is Private Limited Company, registered with the Registrar of Companies. The suit has been instituted through Shri Rajesh Jain, who has been authorized by a resolution of the Board of Directors. The Defendants are builders.
ii) Jural relationship of the parties: The defendants are customers of plaintiff.
iii) Cause of action: The defendants from time to time, purchased took Granite from the Plaintiff. The purchase is of worth Rs. 1,70,433/ vide invoice No.2290 dated 26.12.2003; worth Rs. 65,042/vide invoice No.2303 dated 04.01.2004. The goods were delivered to the defendants through truck Nos.6166 and 1640 respectively at Delhi. The above bills in the sum of Rs. 2,35,475/ have remained unpaid. Telephonic communications have also not been fruitful. Hence the present suit for recovery of the price of goods along with interest @ 24% p.a which comes to Rs.1,69,542/. Thus a total sum of Rs.4,05,017/ (Rupees four lacs five thousand seventeen only) is due against the defendants.
C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 2 of 31 3
2. Notice of the suit has been sent to the defendants. The defendants put a contest to the suit by filing their written statement.
3. As preliminary objections the defendants have challenged the suit on the following grounds:
i) The suit as framed is not maintainable is as much as it does not fulfill the requirements of Order VII Rule 1 CPC.
ii) Want of territorial jurisdiction, as the copies of the invoices placed on record by the plaintiff, show that the goods were to be delivered in Gurgaon, Haryana.
iii) The documents filed by the Plaintiff show that the Local Sales Tax has been charged at 4% only. It is not the case of the plaintiff that any 'C' Forms were given by the Defendants to the Plaintiff in the context of the alleged transaction, therefore, in the absence of the 'C' Forms, the SalesTax chargeable would be 10% which only shows that the alleged transaction is baseless.
4. On merits, the defendants denied the material averments on which the plaintiff has propounded its cause of action. Primarily the purchase of Granite through the alleged invoices for the alleged amount have been denied; liability of the suit account as claimed as well as the liability of interest/rate of interest has been denied by the defendants. It is prayed that the suit be dismissed. C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 3 of 31 4
5. The plaintiff filed the replication in which a denied the averments of the written statement and reiterated the averments of the plaint.
Issues & Evidence
6. On the pleadings of the parties following issues were framed vide minutes of proceedings dated 21.08.2008:
1) Whether this court has no territorial jurisdiction to try and entertain the suit?OPD
2) Whether the plaint has been signed, verified and the suit has been instituted by the duly authorized person? OPP
3) Whether the plaintiff is entitled for the suit amount?OPP
4) Whether the plaintiff is entitled for interest, if so, at what rate and for what period?OPP
5) Relief.
7. The plaintiff has examined one witness as PW1 who has been cross examined by the defendant. The defendant has examined one witness as DW1. Though opportunity was afforded the plaintiff did not the cross examine the said witness. Later on an application has been filed by the defendant for leave to crossexamine the said C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 4 of 31 5 witness, but the same has been dismissed in default of appearance of the defendant.
Final Arguments
8. I have heard Shri J.K. Jain, Ld. Counsel for the Plaintiff, and Shri V.K. Sharma Ld. Counsel for the Defendants.
9. While making their respective submissions, Ld. Counsel for the parties have copiously read from the pleadings, evidence and documents.
Arguments of plaintiff
10. Ld. Counsel for the plaintiff submitted that notwithstanding the fact that the plaintiff could not cross examine DW1, its case us proved as there is other sufficient material on record.
11. The affidavit of Sh. Lalit Mittal which is Ex.DW1/A is dated 23.04.2012 but the postal receipt shows date of sending as 03.10.2011. How the same could have been sent when it was not executed on the date of sending. Thus the manipulation is rampant and the evidence has to be rejected.
12. The preliminary objection no. 2 of the written statement reads, "The copies of the invoices placed on record by the Plaintiff, without the Defendants in any manner admitting their contents, show that the goods were delivered in Gurgaon, Haryana, therefore, the cause of C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 5 of 31 6 action, if any, would have and could have arisen only in Gurgaon and not at Delhi, therefore, the present suit has not been properly filed in a Court having territorial jurisdiction in the matter". Thus when at the outset, before the opening of plaintiff's arguments, Ld. Counsel for the defendant has given up the issue of territorial jurisdiction, the logical corollary is that the case of plaintiff is admitted.
13. If a suggestion is made to a witness, then the settled law is that the party putting the suggestion believes in the existence of truth of the fact suggested. In the present case, the defendants have suggested to the witness PW1 which reads that "It is wrong to suggest that the goods were delivered at Delhi". This by itself shows that the factum of delivery is admitted, the only point of dispute is the place of delivery. When the question of territorial jurisdiction has been given up, there is express admission of the delivery of goods.
14. As the ld. counsel for defendant at the outset has stated that he has given up the issue no.1 pertaining to territorial jurisdiction nothing remains in the matter and the plaintiff is entitled to decree. Under Sales of Goods Act if a person points out a particular thing to be purchased then it is deemed that the delivery is made to him then and there. In the instant case the goods are granite. The destination where the goods are to be delivered has been given by the defendant and C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 6 of 31 7 PW1/3 and PW1/4 so record the same.
15. Section 55 of the Sales of Goods Act is relied upon and read verbatim. It is submitted that in the facts of the case this clinches the issue of entitlement of plaintiff as to the price of the goods sold. In the same vein, section 61 of the Sales of Goods Act had been relied upon on the aspect of interest. Usual rate of interest, as prevalent in the business/RBI rate, is being claimed.
16. The plaintiff sought amendment of the plaint which was allowed and by virtue of the amendment the averment of delivery of goods at Delhi was made in the amended plaint and the said fact is the deemed delivery in terms of the provisions of Sales of Goods Act.
17. Ld. Counsel for the plaintiff has read para 2 of the reply on merits of the Written Statement and para 2 of the preliminary objections state that burden is on the defendant to prove how they had paid and this burden has not been discharged. Section 101 of the Evidence Act is relied upon.
18. Section 36 (Rules as to delivery) of the Sales of Goods Act has been relied upon stating that the plaintiff is entitle to the price.
19. The plaintiff has served a notice under Order 12 Rule 8 CPC to defendant seeking production of ITRs, balance sheets containing entries dated 26.12.2003 and 04.01.2004 for the financial year C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 7 of 31 8 200405 or 200506. The same has been replied to by the defendant on 27.09.2008. A reading of the reply shows that the defendant has pressed into service inferences without furnishing the facts. In the said reply the defendant has stated that the books of accounts, ITRs and balance sheets do not contain any entries pertaining to the transactions in question. It is for Court to draw this inference, if substantiated by the records. The defendant cannot substitute his inference in lieu of production of record.
20. It is submitted that Section 21 of the Contract Act deals with mistake and its effect. In fact, the dealings of plaintiff were with M/s Harcharan Gupta Constructions Pvt. Ltd. However, in the bills drawn by the plaintiff the words "Constructions Pvt. Ltd." have been left out/omitted by mistake. The defendant while appearing in the suit stated its status as that of a partnership concern. By the same name, there cannot be two business entities viz. one a partnership firm and other a company. In this view of the fact, the accounts of M/s Harcharan Gupta Constructions Pvt. Ltd. would have reflected the entry of the goods, which are subject matter of the suit, in its books.
21. Thus considering the pleadings and evidence in totality the plaintiff has successfully proved its case and is entitled to decree.
Arguments of Defendants C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 8 of 31 9
22. On behalf of defendants, it is submitted that the witness DW1 has not been cross examined by the plaintiff, despite opportunity afforded and also subject to costs. The evidence of DW1 has therefore gone unrebutted.
23. Issue were framed on 21.08.2008. The issue no.1 pertains to territorial jurisdiction. The same is not pressed by the defendant.
24. Issue no.2 pertains to signing and verification of the plaint by a duly authorized person. The resolution dated 22.12.2006 in favour of Shri Prakash Chand Jain and Shri Rajesh Jain has not been proved though the plaint is purported to have been signed by Shri Rajesh Jain. He has not stepped into the witness box though the affidavit by way of evidence dated 15.09.2008 had been filed on record. On behalf of the plaintiff, Shri Chandra Prakash Bansal has appeared in evidence as PW1 stating him to be Accountant and authorized signatory of the plaintiff. He has deposed about one resolution dated 01.02.2009 which he has tendered as Ex.PW1/1. PW1 did not whisper even a single word about authorization of Shri Prakash Chand Jain or Shri Rajesh Jain and has not stated anything about signing or the verification of the plaint by any one of them. In para 7 of the affidavit of PW1 there is a statement that the copy of the amended plaint is Ex.W1/7 which is signed by Shri Rajesh Jain at point A & B. As such this issue is not C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 9 of 31 10 proved by plaintiff. The defendant has relied upon Escorts Ltd. Vs. Sai Autos & Ors. 42 (1990) SLT 446 on this aspect.
25. As regards the issue no.3, in para 2 of the plaint goods have been stated to be delivered at Delhi but no invoice or R/R have been filed on record. PW1 denied the suggestion that the goods were delivered at Delhi. He also stated that goods were delivered at Gurgaon. PW1 has admitted to suggestion that the Carrier/Transporter issues an acknowledgment in writing when the goods are delivered and that it was so issued in the instants case. It is further stated in the cross examination of the PW1 that the same has been filed on record.
26. Ex.PW1/3 shows the address as Narwana, Gurgaon and Ex.PW1/3 shows the address of Gurgaon. For interstate movement of goods Form 38 of Sales Tax is a prerequisite. The witness PW1 states that the said bills do not bear any acknowledgment from the defendant. PW1 further stated that he knows about Form 38 but does not know whether the same was prepared in the instant case. PW1 further stated that he does not have any document to show whether the invoices PW1/3 and PW1/4 were delivered to the defendant. PW1 has denied any knowledge of records of Trucks by which the goods were delivered; truck nos.; whether the trucks were arranged by the C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 10 of 31 11 defendant or the plaintiff.
27. The witness PW1 kept on shifting his stand regarding place of delivery of goods. At one place he stated the goods were delivered at Gurgaon and at other place he stated that it was correctly mentioned in the plaint that the goods were delivered in Delhi. He also stated that he does not know at which place the goods were delivered in Delhi.
28. The witness was suggested about non delivery of any goods either in Delhi or in Gurgaon. He was also suggested about the plaintiff not owning any liability as claimed.
29. As regards the issue no.4, the PW1 stated in his cross examination that no agreement took place in his presence regarding payment of interest.
30. The defendant no. 1 as impleaded in the instant suit and M/s Harcharan Gupta Constructions Pvt. Ltd. are two different entities, the former being a partnership concern and the latter being a private ltd. company. If the argument of plaintiff as to mistake is to be accepted, this speaks for itself that the suit has been filed against a wrong defendant.
31. In the very first written statement dated 30.03.2007, in para 2 of the preliminary objections the defendant has taken the objections as to the suit being bad for non joinder of necessary parties in as much as C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 11 of 31 12 the partners of defendant have not been impleaded at all. Vide order of the Court dated 29.05.2007, the defendant was directed to disclose the names of the partners and the compliance was done by defendant by filing the details on 02.07.2007. Throughout the life of the case the above plea as taken for the first time in arguments was never raised by the plaintiff.
32. As far as the date on affidavit is concerned, the defendant was under an obligation vide the directions of the Courts to supply an advance copy of the affidavit in evidence. The same was sent on 03.10.2011 under postal services but the affidavit was got attested subsequently on 23.04.2012 and the date appearing on it is partly hand written and partly typed is of 23.10.2011 and 23 April, 2012 as the date of attestation.
33. Ld. Counsel for defendants read the provisions of Section 36, 55 and 61 of the Sales of Goods Act and states that they do not help the case of plaintiff.
34. No admission by reading preliminary objection no. 2 and para 2 of the reply and merits of the written is made out. There is denial of delivery and claim of the plaintiff by the defendant. When the stand of defendant is that it has not received any goods, there is no onus on it to prove that the price of good has been paid. C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 12 of 31 13
35. In rebuttal, Ld. Counsel for the plaintiff refuted the arguments of defendant.
36. No other argument has been pressed into service. No other case law, except the one cited by the ld. Counsel for the defendants has been relied upon.
Findings & Reasons
37. I have considered the submissions and the material on record. My findings on various issues are as under.
Issue no. 1 Whether this court has no territorial jurisdiction to try and entertain the suit?
38. The Ld. Counsel in the course of arguments has given up this issue. Therefore, there is no challenge to the territorial jurisdiction of the Court.
39. If a cue is taken from a reading of section 21 of the Code of Civil Procedure, a party can waive the objection as to pecuniary jurisdiction or territorial jurisdiction. However this election is not available as far as the jurisdiction as to subject matter is concerned. Notwithstanding the fact that no objection as to inherent jurisdiction has been taken, it is the duty of the Court to satisfy itself that it has jurisdiction to entertain and adjudicate upon the lis.
40. As far as the aspect of territorial or pecuniary jurisdiction is C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 13 of 31 14 concerned section 21 may create an estoppels against a party, but there can be no estoppels against the Court. Thus the Court has to satisfy itself about its jurisdiction on all aspects.
41. The averments of the plaint disclose a part of cause of action at Delhi. Therefore the jurisdiction of this Court is made out. This issue is answered accordingly.
Issue no. 2: Whether the plaint has been signed, verified and the suit has been instituted by the duly authorized person? OPP
42. PW1 has stated in his cross examination that Mr. Prakash Chand Jain has authorized him to appear in this case. He has not given him any authority in written. He said again that he has issued a letter in this regard to him which he pointed out to be Ex. PW1/1. PW1 further stated in his cross examination that he had not brought the original minutes book containing the contents from which Ex. PW1/1 has been extracted.
43. PW1 stated in his cross examination that the plaint was drafted the under the instruction of Sh. Prakash Chand Jain; Ex. PW1/A was also drafted under the instructions of Sh. Prakash Chand Jain.
44. The plaintiff is a body corporate and has to necessarily work through a human agency. There is a well established procedure for the same. Order 29 of the Civil Procedure Code deals with the C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 14 of 31 15 manner in which the proceedings where the a company sues or is being sued upon is to be followed.
45. In United Bank of India vs. Naresh Kumar & Others (1996) 6 SCC 660 it has been held: "8. In this appeal, therefore, the only question which arises for consideration is whether the plaint was duly signed and verified by a competent person.
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name.
Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity, it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 15 of 31 16 Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour, of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
11. The Courts below could have held that Sh.
C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 16 of 31 17 L.K.Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Sh. L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the Courts below were still unable to come to this conclusion, then either of the appellate Courts ought to have exercised their jurisdiction under Order 41, Rule 27 (1) (b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Sh. L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Sh.L.K.Rohatgi to sign the plaint. Such a power should be exercised by a Court in order to ensure that injustice is not done by rejection of a genuine claim.
12. The Courts below having come to a conclusion that money had been taken by respondent No.1 and that respondent No. 2 and husband of respondent No. 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable.
13.The Court had to be satisfied that Sh.L.K.Rohatgi could sign the plaint on behalf of C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 17 of 31 18 the appellant. The suit had been filed in the name of the appellant company; full amount of Courtfee had been paid by the appellant bank; document as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Sh.L.K.Rohatgi must have been authorised to sign that plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K.Rohatgi in signing the plaint and thereafter it continued with the suit."
46. The above judgment of the Hon'ble Supreme Court of India has been referred to by the Hon'ble High Court of Delhi in the M/s Rajghria Paper Mills Ltd. Vs. General Manager, Indian Security Press and Another AIR 2000 Delhi 239 and it was held (in para 20 of the Judgment) that 'unless a power to institute suit is specifically conferred on a particular director he has no authority to institute the suit on behalf of the company. It must therefore follow that although the plaint was signed and verified properly but the suit was not instituted by a duly authorized person on behalf of the plaintiff.'
47. In the case law reported as Asia Today Limited vs. Sinhal C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 18 of 31 19 Metal Industries Limited MANU/DE/1581/2006 Hon'ble High Court of Delhi has referred to the judgment of Hon'ble Supreme Court of India in United Bank of India v. Naresh Kumar AIR 1997 SC 3. In para 29 of the said judgment Hon'ble High Court of Delhi has held that 'it is no more resintegra that signing and verification of the plaint is different from filing the suit by a competent person.' It is further held that 'normally the court does not insist for such technicalities nor gives much weightage on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It often affects the policy and finances of the company and has far reaching effects, therefore unless a power to institute a suit is specifically conferred, a particular director or person, merely contending that a person is a constituted attorney, such a person will not have authority to institute a suit on behalf of the company. Needless to say, such a power can be conferred by the Board of Directors by passing a resolution in this regard.'
48. Ld. counsel for defendant has relied upon Escorts Ltd. Vs. Sai Autos & Others 42(1990) DLT 446 in which is held that the only way to prove that a particular resolution was passed at a meeting of the Board of Directors of a company is that the minutes book in which C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 19 of 31 20 the said resolution was recorded as having been passed should be produced in court as that alone can form evidence of the fact that such a resolution was passed.
49. In the present case, there is a certified extract of a resolution dated 22.12.2006 but the same has not been proved in accordance with law by brining before the Court the minutes book of the meeting of Board of Directors. Despite questions put on this aspect to the witness PW1 no remedial measures had been taken by the plaintiff. As such, the authority of Sh. Prakash Chand Jain and/or Sh. Rajesh Jain to institute the present suit has not been established on record.
50. In view of the above, the finding on this issue is returned in negative.
Issue no. 3 Whether the plaintiff is entitled for the suit amount?
51. The plaintiff examined Sh. Chander Prakash Bansal as PW1 who has tendered documents Ex.PW1/1A which is copy of resolution, Ex. PW1/2 which is Memorandum of Articles of Association, Ex. PW 1/3 which is copy of invoice no. 2290 dated 26.12.2003, Ex.PW1/4 which is copy of invoice no. 2303 dated 04.01.2004, Ex.PW1/5 which is certified copy of notice and telegraphic receipt is Ex.PW1/6, copy of amended plaint is exhibited as Ex.PW1/7.
52. The examination in chief of PW1 is contained in his affidavit C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 20 of 31 21 Ex.PW1/A. The same is as per the plaint. The witness has been cross examined at length by the defendant.
53. PW1 stated in his cross examination that he is a Graduate; he had gone through the contents of the affidavit before he had signed the same; he knows English and can understand the English language but not having sound knowledge of English.
54. PW1 further stated in his cross examination that he did not know whether the plaint was amended; however, the same might have been amended at the instructions of Sh. Prakash Chand Jain. He stated that he had gone through the plaint once; he has little knowledge about the contents of the plaint. He stated that he informed about Para 7 of Ex. PW1/A to Sh. Prakash Chand Jain. He denied the suggestion that he never visited to the office of his counsel for drafting of Ex. PW1/A.
55. PW1 further stated in his cross examination that the transaction as mentioned in Ex.PW1/A was carried out as per his instructions and his knowledge. He is looking after sales, purchases and accounts of the plaintiff. He does not prepare the bills/invoices for sales. He also stated in his cross examination that the goods were not delivered as per his instructions. The goods were delivered at Gurgaon. He stated that he does not have any documents whereby the defendant had directed for delivery of the goods at Gurgaon but it was oral C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 21 of 31 22 instructions. He denied the suggestion that the goods were delivered at Delhi. He stated that he was not present when the goods were delivered at Gurgaon. The goods were sent through goods carrier; Builty was prepared for delivery of goods at Gurgaon. He stated that he was not sure whether the receipt is available with him but he can answer after checking the records. However, the witness PW1 did not revert to the Court on this aspect after verification of records.
56. PW1 admitted the suggestion that when Carrier delivers the goods to the party then he obtains acknowledgment in writing. He admitted the suggestion that the said receipt was given by the Carrier to the consignor. He stated that he has not filed receipt for builty or acknowledgment receipt before the court. He also stated in his cross examination that he knows about Form 38. Further he stated that he does not know whether Form 38 was prepared in this case.
57. PW1 stated in his cross examination that the freight charges have to paid by the defendant; however, there is no such written agreement. No demand in written was made during the period between 26.12.2003 to 27.12.2006 from the defendant regarding the suit amount.
58. Further in his cross examination PW1 stated that he can explain the difference between telephonic and telegraphic conversation. The C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 22 of 31 23 notice dated 27.12.2006 was sent through telegraph. He admitted the suggestion that Ex. PW1/3 and Ex. PW1/4 do not bear any acknowledgment from the defendant.
59. PW1 stated in his cross examination that as on today Sh. Prakash Chand Jain is out of Delhi though his residence is in Delhi as well as in Rajasthan. His age is 4243 years.
60. Further PW1 stated in his cross examination that it is correctly mentioned in the plaint that the goods were delivered in Delhi. He stated that he does not at which place in Delhi the goods were delivered. He also stated that he does not know what instructions were given to the counsel for the plaintiff when the plaint was drafted. He stated that he does not have any document whether Ex. PW1/3 and Ex. PW1/4 were delivered to the defendant. He stated that he does not know the whereabouts of the defendant but he is from Delhi. He stated that he does not know about the addresses of the defendant nos. 1, 2 and 3 as mentioned in the plaint. He stated that he does not know whether the plaintiff is having records of the trucks by which the goods were delivered. He stated that he does not know about the truck numbers mentioned in the plaint. He stated that he does not know whether the trucks by which the goods were delivered, arranged by the defendant or the plaintiff.
C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 23 of 31 24
61. PW1 stated in his cross examination that the contents of Ex. PW1/A are correct but he do not know about the contents of plaint. He denied the suggestion that the invoices no. PW1/3 & Ex. PW1/4 were never received by the defendant; or that the entire plaint and the documents are fictitious or that no goods were delivered in Delhi at all or that no goods were delivered even in Gurgaon or that his affidavit is in contradiction with the plaint or that he had not been authorized by the plaintiff to depose or to appear in the present suit or that the defendant does not owe to any money to the plaintiff either towards principle or by way of interest.
62. DW1 is Sh. Lalit Mittal whose examination in chief is contained in affidavit Ex.DW1/A. His deposition is in terms of the written statement. He has not been cross examined by the plaintiff and as such his testimony has remained unchallenged.
63. It is the settled law that the burden of proof remains fixed but the onus keeps on shifting during the course of trial. When both the parties have led the evidence the question of onus of proof fades into insignificance. Hon'ble the High Court of Delhi in Kerala Agro Industries Corporation Limited vs. Beta Engineers 188 (2012) DLT 373 has been held that "...a civil case is decided on balance of probabilities. A civil court puts all the evidence which have been led C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 24 of 31 25 in a melting pot so as to determine the final picture which has to emerge...". Thus, the entire evidence and material on record is to be analyzed to find out the final picture that emerges.
64. Ld. counsel for plaintiff has emphasized that the para 2 of the preliminary objections as taken by the defendant in its written statement becomes an admission the moment the defendant has withdrawn the objection as to territorial jurisdiction. I have considered this thoughtfully. The said pleading has already been verbatim recorded above. By no stretch of imagination it can be construed as an admission of the transaction in question. The defendants have very categorically made this submission stating that the same is without admitting the contents of the invoices. Therefore, even reading meaningfully there is no question of any admission on the part of defendant notwithstanding the fact whether the same is read with the objections as to territorial jurisdiction or sans the said objection.
65. The objection as to the posting of affidavit in DE as taken by plaintiff is not subscribed to by me. On 16.08.2011 while adjourning the matter for 18.10.2011 for DE, the defendant was directed to furnish an advance copy of affidavit. It is the case of defendant that the same was sent through recorded postal delivery on 03.10.2011. C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 25 of 31 26 The affidavit bears a date in hand as 23rd April, 2012 on which day it has been attested by the Oath Commissioner. It could have been that the advance copy of the unattested affidavit had been sent by the defendant to the plaintiff and later on the affidavit after attestation was filed in the Court. The affidavit has been filed on 23.04.2012. In so many words the plaintiff has not submitted as to how he has been prejudiced by all these facts. Ostensibly, the objection is an art for art's objection.
66. Section 36 of the Sale of Goods Act reads as under: "36. Rules as to delivery. --(1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question de pending in each case on the contract, express or implied, between the parties. Apart from any such contract, goods sold are to be delivered at the place at which they are at the time of the sale, and goods agreed to be sold are to be delivered at the place at which they are at the time of the agreement to sell, if not then in existence, at the place at which they are manufactured or produced.
(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.
(3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third per C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 26 of 31 27 son acknowledges to the buyer that he holds the goods on his behalf:
Provided that nothing in this section shall affect the operation of the issue or transfer of any docu ment of title to goods.
(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller."
67. Section 55 of the Sale of Goods Act reads as under:
"55. Suit for price. --(1) Where under a contract of sale the property in the goods has passed to the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods. (2) Where under a contract of sale the price is payable on a day certain irrespective of delivery and the buyer wrongfully neglects or refuses to pay such price, the seller may sue him for the price although the property in the goods has not passed and the goods have not been appropriated to the contract."
68. I have considered the above provisions of law visavis the pleadings of parties and the evidence on record. These provisions are not attracted in the facts and circumstances of the case.
69. Section 21 of the Contract Act reads as under: C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 27 of 31 28 "21. Effect of mistake as to law. --A contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to a law not in force in India has the same effect as a mistake of fact.
Illustrations A and B makes a contract grounded on the erro neous belief that a particular debt is barred by the Indian Law of Limitation; the contract is not void able."
70. The above provision speaks as to a mistake in law. The mistake as pointed out by the plaintiff is apparently a mistake of facts as the plaintiff states that his dealings were with M/s Harcharan Gupta Constructions Pvt. Ltd. and it was only by mistake that the words 'Constructions Pvt. Ltd.' were omitted.
71. A company is a creature of law and as the law provides there can be no two companies by the same name. However, no law has been cited before me that there can be no two business entities of different forms like proprietorship, HUF, Association of Persons, partnership or company with the same or similar name. Trade Mark Act 1999 does recognize a trade name as a part of the trade mark, being the repository of good will of a business entity and any phonetic, structural or visual misrepresentation which may amount to passing off the goods of defendant by creating an impression or deception that they originate from the plaintiff is actionable. C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 28 of 31 29 However the same is not the case here.
72. The above argument of plaintiff is dehors the pleadings. Even otherwise, the plaintiff has not taken any remedial measures even after discovery of the alleged mistake. For want of any such action, the above plea does not come to the rescue of the plaintiff. On the contrary, it goes to establish the fact that there is not subsisting liability against the defendants.
73. Appreciating the evidence of PW1, it is seen that the plaintiff failed to prove the transaction in question by any tangible evidence. The truck numbers as mentioned are incomplete. The bills/invoices do not bear the signatures of the defendant or their authorised persons. There is no document to show that the delivery of goods has been made to the defendants. The witness PW1 himself is not sure whether the goods have been delivered at Gurgoan or at Delhi. He has made equivocal statements about this in his cross examination and has been shifting his stand. Though, at one point in the cross examination the witness has been suggested that the goods were delivered at Delhi. This may amount to an admission of delivery of goods, however, the witness has denied the suggestion. Further in the cross examination, it has been suggested that no goods were delivered in Delhi at all and that no goods were delivered even at C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 29 of 31 30 Gurgaon. Of course, these suggestions have been denied. The evidence has to be appreciated in entirety and not by reading one scattered line from here and there. Taking a total effect of evidence there is no admission on the part of the plaintiff.
74. On the other hand the evidence of defendant through DW1 where there is categorical denial of the transaction in question has remained unimpugned.
75. Taking a cumulative assessment of the evidence on record, the plaintiff has failed to prove the transaction in question and any subsisting liability against the defendants.
76. The findings on this issue is returned against the plaintiff. Issue no.4 Whether the plaintiff is entitled for interest, if so, at what rate and for what period?
77. Section 61 of the Sale of Goods Act reads as under: "61. Interest by way of damages and special dam ages. --(1) Nothing in this Act shall affect the right of the seller or the buyer to recover interest or special damages in any case whereby law inter est or special damages may be recoverable, or to recover the money paid where the consideration for the payment of it has failed.
(2) In the absence of a contract to the contrary, the Court may award interest at such rate as it thinks fit on the amount of the price --
C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 30 of 31 31
(a) to the seller in a suit by him for the amount of the price -- from the date of the tender of the goods or from the date on which the price was payable;
(b) to the buyer in a suit by him for the refund of the price in a case of a breach of the contract on the part of the seller -- from the date on which the payment was made."
78. The PW1 has admitted in his cross examination that no agreement took place in his presence regarding payment of interest. In view of the same the default provision shall be applicable and the incidence of interest can be considered in the light of the above provisions. This issue is answered accordingly.
Issue no. 5 Relief.
79. In view of my findings on the above issues more specifically the issue nos. 2 and 3, the plaintiff has failed to prove its case.
80. The suit of plaintiff is dismissed.
81. Parties to bear their own costs.
82. Decree sheet be drawn accordingly.
83. File be consigned to Record Room.
Announced in the Open Court On this 6th day of April 2013 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi C.S. 03/2007 Ritu Stones (P) Ltd. Vs. Harcharan Dass Gupta Page 31 of 31