Delhi District Court
Head Office : Delhi Stock Exchange vs Punjab National Bank on 30 November, 2007
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IN THE COURT OF SH. SATISH KUMAR ARORA, CIVIL JUDGE, DELHI
SUIT NO : 222/05/97
Brawn Laboratories Ltd.
Regd. Office : C-64, Lajpat Nagar-I,
New Delhi - 110 024.
Head Office : Delhi Stock Exchange,
Building (Old),
4/4B, Asaf Ali Road,
New Delhi- 110 002.
..........Plaintiff
Versus
1. Punjab National Bank,
Tropical Building,
Connaught Circle,
New Delhi - 11001
(Through its Manager)
2. M/s. Praveen Chandra & Co.
21, Bhangwadi Shop,
Arcade, Ground Floor,
Kalnbadevi Road,
Bombay.
..........Defendants
Date of Institution : 24.11.1997
Date of Judgment : 30.11.2007
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SUIT FOR DECLARATION & MANDATORY INJUNCTION
JUDGMENT
1. Plaintiff, Brawn Laboratories Ltd. has filed the suit for declaration and mandatory injunction against the defendants. Defendant no. 1 is the Punjab National Bank, Connaught Circus, New Delhi and defendant no. 2 is M/s. Praveen Chandra & Company, Kalba Devi Road, Mumbai. Briefly stated, the facts of the case are as under :-
Initially, plaintiff filed the suit for perpetual injunction against the defendants praying therein the following reliefs :-
(i) A decree of perpetual injunction be passed against the defendant no. 1 and in favour of the plaintiff restraining defendant no. 1 from remitting the proceeds of Rs. 1,19,055/- to defendant no. 2 pending in the form of bank draft favouring defendant no. 2; and
(ii) That a decree of perpetual injunction be passed against defendant no. 2 and in favour of the plaintiff restraining defendant no. 2 from presenting the draft bearing IBC No. 37 for Rs. 1,19,055/- with their bankers and also to Page 2 of 49 -:3:- restrain the defendant no. 1 to encash the same in case same is presented for encashment.
2. The suit for perpetual injunction was filed in the court of Ld. Additional District Judge on 24.11.1997 (owing to the pecuniary jurisdiction of the said court at the relevant time). Both the defendants entered their appearance and filed their respective written statements. The Ld. Judge by order/judgment dated 08.01.1999 decreed the suit of the plaintiff against the defendant no. 1 restraining the defendant no. 1 from releasing the amount of Rs. 1,19,055/- with interest to defendant no. 2, if it is not already released unless and until the written consent is given to release the same by plaintiff. By the same order, suit of the plaintiff against the defendant no. 2 was dismissed as non-maintainable. With the said order, the suit was disposed of and file was consigned to Record Room. Defendant no. 2 feeling aggrieved by the said order dated 08.01.1999, preferred an appeal before the Hon'ble High Court of Delhi which was disposed of by order dated 17.08.2000 whereby the judgment and decree dated 08.01.1999, passed by the Ld. Judge was set-aside and the matter was remanded back to the trial court with the Page 3 of 49 -:4:- directions to decide the matter on merits. It was further directed that the trial court will frame issues on the basis of pleadings of the parties and thereafter, proceed to decide the case in accordance with law. It was further held that the perpetual injunction granted by the Ld. Trial Judge thereby restraining the bank (defendant no. 1) from releasing the payment in favour of the appellant (defendant no. 2 herein) will continue as an interim injunction and will abide the final decision in the suit. With the above said observations, the appeal preferred by the defendant no. 2 herein was disposed of. Subsequent to that, an application under Order VI Rule 17 CPC was preferred by the plaintiff on 18.09.2000. The said application was dismissed as withdrawn by order dated 23.11.2000 with the liberty to the plaintiff to file a fresh application under Order VI Rule 17 CPC after rectifying the mistakes as made in the earlier application.
Pursuant to that, a fresh application under Order VI Rule 17 CPC was moved by the plaintiff on 21.12.2000 seeking therein the following amendments in the original plaint :-
(i) Change in the title of the suit from "Suit for Perpetual Injunction" to "Suit for Declaration and Mandatory Injunction";
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(ii) Change in the prayer clause to the following effect - (a) Declaration be made to the effect that the involved amount of Rs. 1,19,055/- is without consideration and thus, not payable; (b) A declaration be made to the effect that the defendant no. 2 has committed fraud by not actually supplying the contracted goods i.e. Hyoscine Butyl Bromide to the plaintiff, thereby failing to perform its part of the contract and thus, the plaintiff has right on the disputed amount of Rs. 1,19,055/- lying in the form of bank draft/bank guarantee; and (c) A mandatory injunction be passed in favour of the plaintiff thereby directing the defendants to release Rs. 1,19,055/- lying against draft bearing IBC No. 37 for Rs. 1,19,055/- or bank guarantee furnished or to be furnished in pursuance to the orders/judgment of the Hon'ble High Court; and
(iii) Valuation clause was also changed to the above said effect.
By the order dated 22.10.2001, the amendment application filed on 21.12.2000 was allowed and plaintiff was directed to file the amended plaint.
In view of the proceedings as detailed herein above, the suit of the plaintiff for declaration and mandatory injunction shall be disposed of by this judgment.
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3. Plaintiff's case follows as :- Plaintiff, Brawn Laboratories Ltd. is a private limited concern having its head office at Delhi Stock Exchange Building (Old), 4/4-B, Asaf Ali Road, New Delhi-02 and registered office at C-64, Lajpat Nagar-I, New Delhi-24. Sh. A.K. Jain is the duly authorized representative of the plaintiff company, authorized to sign and verify the plaint and to institute and prosecute the present suit for and on behalf of the plaintiff company. Plaintiff is a manufacturer of pharmaceutical products at its factory at 13, NIT Industrial Area, Faridabad, Haryana. It is stated that defendant no. 2, M/s. Praveen Chandra & Company, is also engaged in the business of supply of Basic Drugs and Pharmaceutical Bulk Drugs in Bombay. Plaintiff placed an order dated 28.07.1997 with the defendant no. 2 for the supply of 2 Kilograms (Kgs) of Hyoscine Butyl Bromide. Pursuant to the order placed by the plaintiff, the defendant no. 2 purported to have supplied the said material vide its bill no. 8691 dated 29.07.1997 along with its debit note no. 20/97/98 dated 29.07.1997 for a total sum of Rs. 1,19,055/-. It was agreed between the plaintiff and the defendant no. 2 that the parcel containing the consignment, valuing Rs. 1,19,055/-, was to be delivered by the defendant no. 2 to the Page 6 of 49 -:7:- defendant no. 1, Punjab National Bank and the same was to be released by the plaintiff herein after fulfilling the formalities as agreed, from the defendant no.
1.
4. It is further stated that after the receipt of the consignment/parcel by the plaintiff from the defendant no. 1, it was taken to the plaintiff's factory office at Faridabad where it was opened. It came as a shock to the plaintiff that instead of the consignment of Hyoscine Butyl Bromide as ordered, the parcel was found to contain Books of Annual Report of the State Bank of India. The plaintiff immediately reported the matter not only to the defendant no. 1 and to the defendant no. 2 but also reported the matter to the local police. The defendant no. 2 was also contacted by the plaintiff and was apprised of the fact of receiving the books of annual report of the State Bank of India instead of the consignment of Hyoscine Butyl Bromide. It is alleged by the plaintiff that on being informed, the defendant no. 2 flatly refused to give any answer to the plaintiff. The plaintiff under the apprehension that defendant no. 2 is having some mala fide intention, immediately wrote to the defendant no. 1 bank not to remit the proceeds to the defendant no. 2 till the matter is Page 7 of 49 -:8:- sorted out, as complete fraud has been played upon the plaintiff by defendant no. 2. It is the plaintiff's case that since the goods sent by the defendant no. 2 were of entirely different description and of no commercial value, it is a clear case of fraud being played upon the plaintiff by the defendant no. 2. It is further stated that the plaintiff had not accepted the goods and even informed the discrepancy at the earliest to the defendant no. 1, defendant no. 2 and also to the police stations concerned at Faridabad and Connaught Place, New Delhi respectively. Therefore, it is stated that there is no liability of the plaintiff to make the payment for the bill raised by the defendant no. 2 with respect to the consignment of 2 Kgs. of Hyoscine Butyl Bromide. It is further stated that the defendant no. 2 is having no legal right to encash the draft bearing IBC No. 37 for Rs. 1,19,055/-, in case the same is released by the defendant no. 1, for the reason that the goods as ordered by the plaintiff have never been received by the plaintiff and further there is a case of committal of fraud by the defendant no. 2 upon the plaintiff by sending the reports of State Bank of India instead of consigned goods. In view of the aforesaid, plaintiff makes the following prayers :-
(i) Declaration be made to the effect that the involved amount of Rs. Page 8 of 49 -:9:-
1,19,055/- is without consideration and thus, not payable;
(ii) A declaration be made to the effect that the defendant no. 2 has committed fraud by not actually supplying the contracted goods i.e. Hyoscine Butyl Bromide to the plaintiff, thereby failing to perform its part of the contract and thus, the plaintiff has right on the disputed amount of Rs. 1,19,055/- lying in the form of bank draft/bank guarantee; and
(iii) A mandatory injunction be passed in favour of the plaintiff thereby directing the defendants to release Rs. 1,19,055/- lying against draft bearing IBC No. 37 for Rs. 1,19,055/- or bank guarantee furnished or to be furnished in pursuance to the orders/judgment of the Hon'ble High Court.
5. It is pertinent to mention here that initially plaintiff has filed a civil suit bearing no. 421/1997 in the Court of Ld. Civil Judge with respect to the same cause of action and between the same parties, praying for the relief of injunction. The Ld. Civil Judge in the said civil suit passed an interim injunction in favour of the plaintiff. However, at a later stage, when an error was noted as to the pecuniary jurisdiction of the said court, plaintiff herein preferred an application for withdrawal of the said suit before the Ld. Civil Page 9 of 49
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Judge with the liberty to file a fresh suit on the same cause of action. Instead of allowing the plaintiff to withdraw the present suit and file a fresh suit on the same cause of action, the Ld. Civil Judge, by order dated 21.11.1997, ordered the return of plaint to the plaintiff under Order VII Rule 10 CPC with the directions to file it before the appropriate forum having the pecuniary jurisdiction. The plaintiff, instead of filing the returned plaint before the court of competent jurisdiction, filed a fresh suit (the present civil suit) for the relief of perpetual injunction before the Court of Ld. Additional District Judge. The returned plaint was also transferred to the Court of Ld. Additional District Judge where the present suit was filed. This fact was also noted by the Ld. Additional District Judge in his order dated 08.01.1999. However, to avoid any controversy/dispute, Hon'ble High Court of Delhi by its order dated 17.08.2000 directed the trial court to frame the issues on the basis of the pleadings and to decide the matter on merits.
Defence follows as :-
6. Pursuant to the service of summons of the suit, both the defendants no. 1 & 2 entered their appearance and filed their respective written Page 10 of 49
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statements. Defendant no. 1 i.e. the Punjab National Bank, in its written statement raised a preliminary objection that the present suit of the plaintiff is liable to be dismissed as against the defendant no. 1 as is apparent from the face of the plaint itself that there is a dispute between the plaintiff and the defendant no. 2 only and the defendant no. 1 has been dragged into the present litigation unnecessarily. It is further stated that the defendant no. 1 bank had made a demand draft for an amount of Rs. 1,19,055/- plus interest, in all amounting to Rs, 1,20,082/- on 23.08.1997 itself in favour of the defendant no. 2 at the time of delivery of the consignment. It is stated that on the telephonic advise and written letter of the plaintiff, no remittance was made by the defendant no. 1 to the defendant no. 2 as it was alleged that fraud has been committed by defendant no. 2 against the plaintiff. The receiving of one parcel from defendant no. 2 is admitted by the defendant no. 1. It is stated that the plaintiff took the delivery of this consignment on 23.08.1997. As to the contents of the consignment, defendant no. 1 states that since it is having no concern whatsoever with the consigned goods, therefore, the plaintiff's allegation that the consigned goods were books of annual report of State Bank of India instead of Hyoscine Butyl Bromide, is neither admitted nor denied by Page 11 of 49
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the defendant no. 1. Another objection of the defendant no. 1 is to the effect that in view of the orders passed by the Ld. Civil Judge dated 21.11.1997, the plaintiff herein is estopped from filing the fresh suit (i.e. the present suit) on the same cause of action and merits dismissal on this ground alone. With the abovesaid averments, defendant no. 1 states that the demand draft had already been made by the defendant no. 1 in favour of the defendant no. 2 after the amount was deposited by the plaintiff with the bank at the time of taking the consignment. The defendant no. 1 will be complying with the orders of this court as to whether the said demand draft is to be released in favour of defendant no. 2 or not. It is pertinent to note here that the defendant no. 1 adopted the written statement filed for the original plaint with respect to the amended plaint also.
7. The defendant no. 2 by filing the written statement to the amended plaint raised the following preliminary objections :-
(a) In view of the orders passed by the Ld. Civil Judge dated 21.11.1997, by which the plaint was returned to the plaintiff, the plaintiff herein is estopped from filing the fresh suit (i.e. the present suit) on the same cause of action and Page 12 of 49
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merits dismissal on this ground alone;
(b) The present court lacks the territorial jurisdiction to entertain the present dispute between the parties;
(c) Suit of the plaintiff is not maintainable as under Section 41 (h) of the Specific Relief Act, an equally efficacious remedy is available to the plaintiff;
and
(d) Suit of the plaintiff is time barred.
8. Besides raising the above said preliminary objections, it is the case of the defendant no. 2 that defendant no. 2 had in fact supplied the material (Hyoscine Butyl Bromide) vide bill no. 8691 dated 29.07.1997, for a total sum of Rs. 1,19,055/- and the allegation of the plaintiff that instead of supplying the goods as ordered, the defendant no. 2 has in fact supplied the books of annual report of the State Bank of India is false and baseless. It is the defendant's case that the order was placed on 28.07.1997 on urgent basis by the plaintiff. Since the goods were immediately required by the plaintiff, the defendant no. 2 has dispatched the goods as ordered on the very next day i.e. 29.07.1997. It is further stated that even though the said goods were received Page 13 of 49
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by defendant no. 1 on 02.08.1997, the plaintiff has taken the delivery on 23.08.1997, almost a month after the dispatch, when the goods were required by the plaintiff on urgent basis. It is further stated that the defendant no. 2 was informed as to the plaintiff's allegation of receipt of books of annual report, on 26.08.1997 despite the delivery of goods received by the plaintiff on 23.08.1997. Any committal of fraud by the defendant no. 2 upon the plaintiff is denied and it is stated that the defendant no. 2 has in fact supplied the goods as ordered by the plaintiff i.e. 2 Kgs. of Hyoscine Butyl Bromide and not the books of annual reports of the State Bank of India as alleged by the plaintiff.
Therefore, the allegation of the plaintiff that defendant no. 2 has played fraud upon the plaintiff is vehemently denied and it is reiterated that defendant no. 2 has supplied 2 Kgs. of Hyoscine Butyl Bromide as ordered by the plaintiff and nothing else. The other allegations of the plaintiff are also denied and prayer is made for dismissing the plaintiff's suit with exemplary cost.
9. The plaintiff by filing the replication to the written statement of the defendant no. 2 to the amended plaint, besides reiterating and reaffirming the averments made in the plaint, further stated that the defendant no. 2 has made Page 14 of 49
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the breach of the agreement between the plaintiff and the defendant no. 2 to the effect that defendant no. 2 had sent the goods through registered post when plaintiff had specifically asked for delivery of goods through Blue Dart Courier.
10. On the pleadings of the parties, following issues were framed on 08.07.2002 :-
(1) Whether the suit is maintainable in present form? OPP (2) Whether this court has territorial jurisdiction to entertain/try the suit of the plaintiff? OPD (3) Whether the suit of the plaintiff is barred U/s 41 (h) of the Specific Relief Act? OPD (4) Whether plaintiff has suppressed material facts? If so, its effect? OPD (5) Whether the suit is barred by limitation? OPD (6) Whether the plaintiff is entitled to declaration that amount of Rs.
1,19,055/- is without consideration and not payable? OPP (7) Whether plaintiff is entitled to declaration as prayed for in para no. (ii) of the prayer clause? OPP Page 15 of 49
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(8) Whether plaintiff is entitled to relief of mandatory injunction as prayed for? OPP (9) Relief.
11. In support of its case, plaintiff examined Sh. A.K. Jain, as PW-1 and Sh. R.P. Hans, as PW-2. Defendant no. 2 in support of its case examined Sh. Mahendra K. Shah, Partner in the defendant no. 2 firm, as DW-1.
12. I have heard the respective submissions of the ld. counsel for the parties and perused the record carefully. My findings on the issues are as under.
ISSUE NO. 1 - Whether the suit is maintainable in present form? OPP
13. Ld. counsel for the defendants have raised the contention that plaintiff instead of filing the returned plaint as ordered by the Ld. Civil Judge by order dated 21.11.1997, has filed a fresh suit on the same cause of action, the suit of the plaintiff in the present form is not maintainable. Order VII Rule Page 16 of 49
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10 of the Code deals with the return of plaint. Order VII Rule 10 Sub-Rule 1 of the Code lays down that "subject to the provisions of Rule 10 A, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. Sub-Rule 2 of Rule 10, on the other hand, provides for the procedure on returning plaint. It lays down that "on returning a plaint, the judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it". Now the question that has been raised by the counsel for the defendants is to the effect that the plaintiff is estopped from filing the fresh suit when the plaint was returned to the plaintiff to present it before the court of competent jurisdiction. Can it be said that when the plaintiff instead of filing the returned plaint before the court of competent jurisdiction prefers to file a fresh suit, is the plaintiff estopped from filing the fresh suit? In my opinion, it is not so. The only effect of filing the returned plaint by the plaintiff is that the benefit of extension of period of limitation is available to the plaintiff by virtue of Section 14 of the Limitation Act, 1963. In case, the plaintiff instead of filing the returned plaint files a fresh suit, the benefit of extension of period of limitation is not available. Section 14 provides for the Page 17 of 49
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exclusion of time of proceeding bona fide in court without jurisdiction. Section 14 (1) of the Act provides that "in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Thus, the purpose behind the return of plaint is two fold, (i) it is the court of competent jurisdiction which shall decide the matter on merits; and (ii) when the plaintiff is prosecuting its suit in good faith in a court which lacks the jurisdiction to entertain it, plaintiff is entitled to claim the exclusion of such period for the purpose of calculating the period of limitation. Instead of dismissing the suit, the court shall return the plaint with the directions to the plaintiff to present it before the court of competent jurisdiction. The time spent in prosecuting the suit before the court which is not having the jurisdiction, is sought to be excluded by Section 14 of the Limitation Act subject to the other essentials as detailed in Section 14 (1) are found to be existing in a given case.
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Thus, the filing of fresh suit by the plaintiff before the court of competent jurisdiction, instead of filing the returned plaint is only a technical defect and does not create any estoppel as to the filing of fresh suit.
In view of the aforesaid discussions, I hold that the suit of the plaintiff is maintainable in its present form. This issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO. 2 - Whether this court has territorial jurisdiction to entertain/try the suit of the plaintiff? OPD
15. It is an admitted case that the consignment i.e. 2 Kgs. of Hyoscine Butyl Bromide was to be delivered by the defendant no. 2 to the plaintiff through the defendant no. 1 bank. The defendant no. 1 bank, after clearing of all the formalities by the plaintiff, was to release the amount of Rs. 1,19,055/-
to the defendant no. 2 towards the delivery of consigned goods. It is again an admitted case that defendant no. 1 is having its office at New Delhi, where the goods were to be delivered by the defendant no. 2. Once the goods were to be delivered by the defendant no. 2 with the defendant no. 1 at Delhi and the Page 19 of 49
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payment was to be released by defendant no. 1 from Delhi, it is clear that part of cause of action has arisen in Delhi. Reference can also be made to Section 20 of the Code of Civil Procedure. Section 20 (c) provides "Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises".
Once the part of cause of action has arisen in Delhi, the present court is having the jurisdiction in accordance with Section 20 Clause (c) of the Code, to entertain the present suit. In view of the aforesaid, issue no. 2 is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 3 - Whether the suit of the plaintiff is barred U/s 41 (h) of the Specific Relief Act? OPD
16. Section 41 of the Specific Relief Act, 1963 provides that in certain cases as detailed therein, injunction can not be granted. One of the case where the injunction is not to be granted is under Clause (h) of Section 41 of the Act. Section 41 (h) provides that injunction can not be granted "when equally efficacious relief can certainly be obtained by any other usual mode of Page 20 of 49
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proceeding except in case of breach of trust".
Once the plaintiff makes the allegation that it has not received the consignment as ordered and further that the defendant no. 2 has played fraud upon the plaintiff by delivering goods of entirely different description and of no commercial value, the plaintiff's prayer for the relief of declaration along with mandatory injunction is the only efficacious remedy available to the plaintiff in light of such allegations. Hence, the contention of the defendants that the suit of the plaintiff is barred under Section 41 (h) of the Specific Relief Act, does not hold any ground and is untenable. In view of the same, this issue is decided in favour of the plaintiff and against the defendants. ISSUE NO. 4 - Whether plaintiff has suppressed material facts? If so, its effect? OPD
17. The onus to prove this issue was on the defendants. No evidence has been led on the part of the defendants to prove that the plaintiff has suppressed material facts. Even no arguments were addressed by the ld. counsel for the defendants on this issue. Hence, this issue is decided in favour Page 21 of 49
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of the plaintiff and against the defendants.
ISSUE NO. 5 - Whether the suit is barred by limitation? OPD
18. Defendant no. 2 in para no. 7 of its preliminary objection raises the plea that the present suit of the plaintiff is time barred. As to how the suit of the plaintiff is time barred, no explanation is forthcoming from the defendants' side. It is to be seen that the plaintiff has initially filed the suit for perpetual injunction on 24.11.1997 stating therein that the plaintiff has placed an order with the defendant no. 2 for the supply of 2 Kgs. of Hyoscine Butyl Bromide on 28.07.1997. Plaintiff further states that when the parcel containing the consignment was received by the plaintiff from the defendant no. 2 through defendant no. 1, and the same was opened, it was found to contain books of annual report of State Bank of India instead of the ordered material as abovesaid. As to when the consignment was received by the plaintiff and when the same was opened, no specific date has been stated by the plaintiff either in its original plaint or in the amended plaint. In para no. 7 of the amended plaint, it is stated "that after receipt of the said goods, when the Page 22 of 49
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plaintiff had opened the consignment which was delivered by the defendant no. 1 on the same day, to the dismay of the plaintiff, the parcel was found to contain books of annual report of State Bank of India instead of 2 Kgs. of Hyoscine Butyl Bromide, the ordered material". The date as to when the delivery of the consignment was taken by the plaintiff, is to be found in para no. 7 of the reply on merits in the written statement of the defendant no. 2 wherein, it is stated that the plaintiff has taken the delivery of the consignment on 23.08.1997. The plaintiff in its replication to the written statement of defendant no. 2 has denied the contents of the said para no. 7, however the plaintiff has not stated, by way of an explanation, as to when the consignment was received by the plaintiff. Reference can also be made to para no. 13 of the plaint wherein it has been stated as to when the cause of action has arisen. It is stated that it first arose on 28.07.1997, when the plaintiff has placed the order with defendant no. 2. It further arose when the defendant no. 2 had sent the goods to the plaintiff vide post parcel dated 29.07.1997. It again arose when the goods were received by the plaintiff on 23.08.1997 from the defendant no. 1 at their factory and the plaintiff had fulfilled all the formalities as required under the law. Thus, from the perusal of the para 13 of the plaint, Page 23 of 49
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it becomes clear that plaintiff has received the consignment on 23.08.1997 and it was on the same date that plaintiff noticed that the defendant no. 2 has supplied books of annual report of State Bank of India instead of 2 Kgs. of Hyoscine Butyl Bromide. It become clear that the cause of action for filing the present suit has in fact arisen on 23.08.1997. The plaintiff has initially filed the suit for perpetual injunction on 24.11.1997. Vide order dated 22.10.2001, plaintiff's application under Order VI Rule 17 of the Code was allowed and the plaintiff by way of amendment has prayed for declaration as well as mandatory injunction. Law is very clear as to the applicability of doctrine of relation back which generally governs amendment of pleadings.
Unless for reasons the court excludes the applicability of the rule in a given case, the pleadings would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the amended pleadings. Reference can be made to the judgment of the Hon'ble Supreme Court of India in Sampath Kumar Vs. Ayyakannu & Anr. AIR 2002 SC 3369, wherein, it was held that "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in Page 24 of 49
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appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on which the application seeking the amendment was filed."
In the present case, when the plaintiff's application for amendment of pleadings was allowed on 22.10.2001, there was no observation of the Ld. Judge that the amendment shall be from the date of filing of the application and not from the date of filing of the suit. Once there is no such observation, it is deemed that the amendment of pleadings as allowed relates back to the date of filing of the suit. In view of the same, the reliefs of declaration and mandatory injunction as sought by the plaintiff by way of amendment, are deemed to have been prayed from the date of filing of the suit. The cause of action having arisen on 23.08.1997 and the suit having been filed on 24.11.1997, the same is within the period of limitation both with respect to the relief of declaration and that of mandatory injunction.
In view of the aforesaid, I hold that the present suit of the plaintiff is within limitation. This issue is decided accordingly. Page 25 of 49
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ISSUE NO. 6, 7 & 8
Issue no. 6, 7 & 8 being interconnected, a common finding is given on all the three issues.
ISSUE NO. 6 - Whether the plaintiff is entitled to declaration that amount of Rs. 1,19,055/- is without consideration and not payable? OPP ISSUE NO. 7 - Whether plaintiff is entitled to declaration as prayed for in para no. (ii) of the prayer clause? OPP ISSUE NO. 8 - Whether plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
19. Plaintiff, in the present suit states that it has placed an order dated 28.07.1997 with the defendant no. 2 for the supply of 2 Kgs. of Hyoscine Butyl Bromide to be delivered to the plaintiff through the defendant no. 1 bank. It is stated that the defendant no. 2 purported to have supplied the said material vide bill no. 8691 dated 29.07.1997 along with the debit note no. 20/97-98 dated 29.07.1997 for a total sum of Rs. 1,19,055/-. From the para no. 7 & 13 of the plaint, it is the plaintiff's case that when plaintiff received the Page 26 of 49
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consignment on 23.08.1997 from the defendant no. 1 bank, and when the same was opened at the factory of the plaintiff, it was found to contain books of annual report of State Bank of India instead of 2 Kgs. of Hyoscine Butyl Bromide, the ordered material. Once the plaintiff noticed that the defendant has played fraud upon the plaintiff by not supplying the ordered material, it immediately reported the matter not just to the defendant no. 1 and defendant no. 2, but also reported the matter with the local police. The plaintiff, by apprising the defendant no. 2 about the non-delivery of ordered material, requested the defendant no. 2 to look into the matter and send the goods as ordered by the plaintiff. Plaintiff further states that plaintiff has been prompt in reporting the matter not just to the defendant no. 1 and defendant no. 2 but also with the police concerned at Faridabad and Connaught Place, New Delhi. Therefore, the basis for filing the present suit for declaration and mandatory injunction lies in the fact that since defendant no. 2 has played fraud upon the plaintiff by not sending the goods as ordered, there is no liability of the plaintiff to make the payment of Rs. 1,19,055/-, which was the invoice value of the consigned goods. Further, an arrangement was arrived at between the plaintiff and the defendant no. 2 that the consignment was to be delivered to Page 27 of 49
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the plaintiff through defendant no. 1 bank after the clearing of formalities (as to the payment of the invoice value of the consignment) by the plaintiff with the defendant no. 1. When the defendant no. 2 has failed to send the consignment as ordered, neither the defendant no. 2 has any right to claim the amount of Rs. 1,19,055/- from the defendant no. 1 nor the defendant no. 1 is having any right to release Rs. 1,19,055/- lying against draft bearing IBC No. 37 for Rs. 1,19,055/-, to the defendant no. 2. Plaintiff to be entitled to the reliefs as prayed, must prove (i) that the plaintiff has placed an order with the defendant no. 2 for the supply of 2 Kgs. of Hyoscine Butyl Bromide; (ii) that the defendant no. 2 instead of supplying the consignment as ordered, has in fact supplied goods of entirely different description and of no commercial value i.e. the books of annual report of State Bank of India; and (iii) by the non-delivery of the ordered goods and the supply of books of annual report as alleged, the defendant no. 2 has played fraud upon the plaintiff.
In so far as the placing of order for the supply of 2 Kgs. of Hyoscine Butyl Bromide is concerned, it is admitted by the defendant no. 2 that plaintiff had in fact placed an order dated 28.07.1997 with the defendant no. 2 for the supply of 2 Kgs. of Hyoscine Butyl Bromide. Once the placing Page 28 of 49
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of order for the supply of above said goods is admitted, it is for the plaintiff to prove that instead of supplying the goods as ordered, the defendant no. 2 has supplied goods of entirely different description and of no commercial value, that is, the books of annual report of State Bank of India and thus, played fraud upon the plaintiff. To prove this, plaintiff has produced two witnesses in support of its case, Sh. A.K. Jain was examined as PW-1 by way of affidavit Ex. PW-1/A and Sh. R.P. Hans was examined as PW-2 by way of affidavit Ex. PW-2/A.
20. PW-1, Sh. A.K. Jain in his examination-in-chief by way of affidavit Ex. PW-1/A deposed that he is the authorized representative of the plaintiff company and is well conversant with the facts and circumstances of the case. The copy of the certified true copy of the resolution passed in the meeting of the Board of Directors of the plaintiff company held on 26.08.1997 whereby PW-1, Sh. A.K. Jain was authorized to sign and file the plaint and to institute and prosecute the present suit for and on behalf of the plaintiff company, was exhibited by PW-1 as Ex. PW-1/1. PW-1 further deposed that the plaintiff had placed an order dated 28.07.1997 with the defendant no. 2 for Page 29 of 49
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the supply of 2 Kgs. of Hyoscine Butyl Bromide. The copy of the order in the form of fax message dated 28.07.1997 is exhibited and proved by PW-1 as Ex. PW-1/2A (mentioned as Ex. PW-1/2 in affidavit Ex. PW-1/A). PW-1 deposed that defendant no. 2, subsequent to the order placed by the plaintiff, had purported to have supplied the ordered material vide its invoice no. 8691 dated
29.07.1997 along with debit note no. 20/97-98 dated 29.07.1997 for a total sum of Rs. 1,19,055/-. The copy of the said invoice along with the debit note are exhibited as Ex. PW-1/3 & PW-1/4 respectively. PW-1 in para no. 7 of his affidavit in evidence Ex. PW-1/A reiterated the averments made in the plaint to the extent that after the receipt of goods by the plaintiff, when the same was opened, it was found to contain books of annual report of State Bank of India instead of 2 Kgs. of Hyoscine Butyl Bromide. As to the date when the consignment was received and opened by the plaintiff, PW-1 is silent in his examination-in-chief. However, PW-1 in para no. 8 of his affidavit Ex. PW- 1/A stated that the plaintiff immediately reported the matter to the defendant no. 2 vide following letters : (i) Ref-BLL/97-98/448 dated 23.08.1997; (ii) Ref-BLL/97-98 dated 23.08.1997; and (iii) Ref-BLL/AAR/97 dated 27.08.1997. The copy of the said letters have been exhibited as Ex. PW-1/5, Page 30 of 49
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PW-1/6 & PW-1/7 respectively. In the same para no. 8, PW-1 further stated that the matter was also reported to the Munjeshwar (Mujessar) Police Station, Faridabad vide letter Ref-BLL/97-98 dated 23.08.1997. The copy of the same is exhibited as Ex. PW-1/9. The copy of the non-cognizable report (NCR) recorded by the Munjeshar (Mujessar) Police Station dated 12.09.1997 is exhibited as Ex. PW-1/10. PW-1 further stated that the matter was also brought to the notice of defendant no. 1 bank vide letters Ref-BLL/AAR/97 dated 23.08.1997 and Ref-BLL/AAR/97 dated 27.08.1997. The copy of the said letters are exhibited as Ex. PW-1/11 & PW-1/12 respectively. PW-1 stated that through the said letters Ex. PW-1/11 & PW-1/12, the plaintiff requested the Chief Manager of the defendant no. 1 bank not to remit the proceeds i.e. the amount of Rs. 1,19,055/- plus charges to the defendant no. 2 till the matter is sorted out between the plaintiff and the defendant no. 2. PW- 1 further reiterated the averments made in the plaint by stating in para no. 9 of his affidavit Ex. PW-1/A that since the consignment sent by defendant no. 2 was not Hyoscine Butyl Bromide but books of annual report of State Bank of India, defendant no. 2 has played fraud upon the plaintiff and therefore, there is no liability of the plaintiff to make payment for the bill raised by the Page 31 of 49
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defendant no. 2 for the amount of Rs. 1,19,055/- and the plaintiff has right on the disputed amount of Rs. 1,19,055/- lying in the form of bank draft/bank guarantee with the defendant no. 1.
21. It is pertinent to mention here that an application under Section 65 of the Evidence Act, 1872 was moved by the plaintiff on 11.09.2002 therein praying for allowing the plaintiff to lead secondary evidence with respect to the documents Ex. PW-1/1 to PW-1/12 as the original of the said documents have been misplaced by the counsel of the plaintiff. The Ld. Judge by order dated 27.11.2002 allowed the plaintiff's application and gave the permission to lead secondary evidence as to the contents of Ex. PW-1/1 to PW-1/12 respectively provided the plaintiff is able to prove the loss of the original documents positively. In his cross-examination, PW-1 deposed that the original documents were handed over to the previous counsel of the plaintiff and who had lost the said documents. PW-1 further deposed that the said previous counsel was one Sh. Pradeep Jain. PW-1 in his cross-examination was questioned as to whether the medicine (the consignment i.e., 2 Kgs. of Hyoscine Butyl Bromide) was required by the plaintiff on urgent basis, PW-1 Page 32 of 49
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deposed that it is correct that the medicine/consignment as ordered by the plaintiff was required on urgent basis. PW-1 further deposed that the order was placed on 28.07.1997 and the defendant no. 2 had dispatched the goods on 29.07.1997. As to when the goods were received by the defendant no. 1, PW-1 expressed his inability to recollect as to when the goods were received by the defendant no. 1. However, PW-1 deposed that he had went to the defendant no. 1 bank to take the delivery of the consignment on 23.08.1997. As to how the goods reached the plaintiff's factory at Faridabad, PW-1 deposed that "we sent the parcel through courier to out factory at Faridabad". He further deposed that it was opened on the same date i.e. 23.08.1997 at the plaintiff's factory at Faridabad. As to when the plaintiff came to know about the alleged misappropriation of goods/consignment, PW-1 deposed that plaintiff came to know of it at the plaintiff's factory at Faridabad. He further deposed that plaintiff had not filed any complaint before the Judicial Magistrate at Faridabad.
From the testimony of PW-1, it becomes clear that even though the consignment was required by the plaintiff on urgent basis, the same was received by the plaintiff on 23.08.1997, almost a month from the date of Page 33 of 49
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delivery by defendant no. 2 to the defendant no. 1. As to why the plaintiff has taken the delivery after such a delay when the material was required on urgent basis, no explanation is forthcoming from the plaintiff's side.
22. Coming on to the testimony of PW-2, Sh. R.P. Hans, PW-2 in his examination-in-chief by way of affidavit states that after the receipt of the consignment, he opened the consignment and found in it the books of annual reports of State Bank of India instead of 2 Kgs. of Hyoscine Butyl Bromide, the ordered material. In his cross-examination, PW-2 deposed that on 23.08.1997, the consignment/parcel was opened in his presence and there was another person in the laboratory namely Sh. Kartar Singh. PW-2 further deposed that "we have received the annual reports of State Bank of India instead of drugs".
23. From the testimony of the plaintiff's witnesses and after perusal of the record, it is clear that the placing of order and subsequent raising of the invoice by the defendant no. 2 is not denied. Rather, it is admitted by the parties, therefore the documents Ex. PW-1/3, PW-1/3A & PW-1/4 are deemed Page 34 of 49
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to have been proved by the plaintiff. PW-1/3 is the invoice issued by the defendant no. 2 in favour of the plaintiff. In the said invoice, under entry no. 5(a)(i), the defendant no. 2 has shown the name and address of the manufacturer as M/s. Alchem International Ltd. In the same entry, even the invoice number has also been stated which is 012/23.05.1997 and the description of the goods has been stated as Hyoscine N Butyl Bromide BP. From Ex. PW-1/3, which is the invoice as above stated and which has been filed by the plaintiff, it can be easily inferred that the defendant no. 2 while supplying the goods as ordered by the plaintiff, has even stated with complete details as to from where the said goods have been procured by the defendant no. 2. This gives credence to the averments of the defendant no. 2 in its written statement that it has in fact supplied the goods as ordered by the plaintiff and nothing else as alleged was supplied. The plaintiff along with the copies of the documents Ex. PW-1/1 to PW-1/12 had also filed a copy of a letter/statement of one Sh. Hari Shankar, an employee of plaintiff. Even though this letter has not been exhibited and proved by the plaintiff, however the same having been filed by the plaintiff could be seen and read so as to weigh the plaintiff's averments and the testimony of plaintiff's witnesses. The Page 35 of 49
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said letter is dated 23.08.1997 and is in Hindi transcript. It is addressed to the Personnel Manager of the plaintiff company. When translated in English, it reads as "I (Hari Shankar) went to the Punjab National Bank, Tropical Building, New Delhi to fetch the parcel from defendant no. 2, containing 2 Kgs. of Hyoscine N-Butyl Bromide. It is further stated that after receiving the said parcel from the defendant no. 1, I reached the plaintiff's factory at Faridabad at 1.00 pm on 23.08.1997. After making the gate entry, I went to the store for delivering the said parcel which was opened by the Store Keeper namely Pramod. After opening the parcel, it was found to contain 5 books of annual report of State Bank of India instead of the ordered material". The contents of this letter contradicts the testimony of PW-2 who in his cross- examination has deposed that the consignment was opened in his presence in the laboratory. The statement is further contrary to the testimony of PW-1, Sh. A.K. Jain who, in his cross-examination, has deposed that "I went to take the delivery of the consignment from the defendant no. 1 bank on 23.08.1997 and the consignment/parcel was sent through courier to the plaintiff's factory at Faridabad". Clearly, the letter by one Sh. Hari Shankar, employee of the plaintiff company, dated 23.08.1997 can not be overlooked, more so when the Page 36 of 49
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plaintiff is alleging the committal of fraud by the defendant no. 2. Further, there is not even a whisper as to whether the said alleged five books of annual reports of SBI have ever been placed by the plaintiff before any of the public authorities so as to substantiate its allegation that, in fact, the plaintiff received the said reports and not the ordered material. Even the plaintiff has failed to produce before this court the said alleged books of annual reports of SBI so as to give credence to its story of committal of fraud by the defendant no. 2. Since it is the plaintiff who asserts that fraud has been played upon it by the defendant no. 2, the burden of proving the fact of fraud always rest on the plaintiff, unless and until it is discharged. Reference can be made to the judgment of the Hon'ble Supreme Court of India in Anil Rishi Vs. Gurbuksh Singh AIR 2006 SC 1971 wherein, it was observed that "In terms of Section 101 of the Evidence Act, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it."
24. Ld. counsel for the plaintiff contends that from the acts of the plaintiff of promptly informing about the receiving of books of annual reports of State Bank of India instead of the consignment as ordered, not just to the Page 37 of 49
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defendant no. 2 but to the defendant no. 1 and the police authorities also, the plaintiff has discharged its onus of proving that fraud has in fact been played upon it by the defendant no. 2. Ld. counsel further makes reference to Section 41 & Section 42 of the Sales of Goods Act, 1930. Section 41 while providing for the buyers right of examining the goods lays down (i) 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; and (ii) 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.
25. Section 41 of the act lays down the basic law with regard to the sale by description. It is founded on the principles of equity that the buyer should be given sufficient opportunity of examining the goods before he is said to have accepted the said goods. In the present case, no doubt the plaintiff has ordered specific goods i.e. 2 Kgs. of Hyoscine Butyl Bromide Page 38 of 49
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and unless and until the plaintiff was given the opportunity of examining the goods, liability can not be imputed on to the shoulders of the plaintiff as to the acceptance of the goods. However, when the plaintiff alleges that it has not received the goods as ordered, the onus is always on the plaintiff to prove the same. Section 42 of the Sale of Goods Act while providing for the acceptance of goods lays down that 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.
Ld. counsel for the plaintiff after making reference to the aforesaid provisions of the Sale of Goods Act, 1930, cites the following authorities in its support :-
(i) Varley Vs. Whipp, (1900) 1 QB 513;
(ii) Lemy Vs. Watson & Anr., (1915) 3 KB 731;
(iii) Chao & Ors. Vs. British Traders & Shippers Ltd., (1954) 1 All ER 779;
(iv) M/s. Sha Thilokchand Poosa Ji Vs. Crystal & Co. AIR 1955 Madras 481; Page 39 of 49
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(v) Kuppuswami Mudalliar & Sons Vs. State of Madras, (1974) 34 STC 6 (Mad); and
(vi) Union of India Vs. Sitaram Jaiswal, (1976) 4 SCC 505.
In the authority cited in (1900) 1 QB 513, it was observed that where there was a contract for the sale of goods by description within the meaning of Sale of Goods Act, 1893, Section 13 (akin to Section 41 of the Sale of Goods Act, 1930), and therefore, by that section, there was an implied condition that the goods should correspond with the description. 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. The present citation is of no support to the plaintiff for the reason that in the present suit, even though the plaintiff alleges that it has not received the goods as ordered, however, the allegation centers around the committal of fraud by the defendant no. 2 to the effect that goods of entirely different description and that too of no commercial value was sent. Once the plaintiff is raising an allegation of fraud, the above cited authority is of no help.
Page 40 of 49
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Again the authority cited in (1915) 3 KB 731, is of no assistance to the plaintiff for the reason that in the said authority what was in question was the dispute as to trade description only.
In the authority cited in (1954) 1 All ER 779, it was observed that under the c.i.f. contract, there were two separate and distinct obligations on the sellers, viz. (i) to deliver correct documents; and (ii) to ship goods in confirmity with the contract, and on breach of these obligations, the buyers had two separate and distinct rights, viz., the right to reject the documents and the right to reject the goods; the right to damages for failure to deliver correct documents vested when the breach was committed. This authority is again of no assistance to the plaintiff again for the reason that plaintiff herein is alleging committal of fraud by the defendant which was not the case in the authority as cited.
In authority cited in AIR 1955 Madras 481, while taking note of Sections 13, 15, 42, 53 and 59 (1) of the Sale of Goods Act, 1930, it was observed that "where goods not answering to the description contracted for are delivered to a buyer, he has a right to one of two alternative remedies (a) reject the goods and obtain a refund of the price, if paid in advance and sue for Page 41 of 49
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damages for non-delivery. In such an event, the damages he would obtain would be the difference between the contract price and the market price of the goods on the date of the breach if the latter were higher; (b) waive condition and accept the goods and sue for damages for a breach of warranty. In the present case, no doubt the allegation of the plaintiff is that he has not received the goods as ordered, from the defendant no. 2, however, it is further alleged that plaintiff has received goods of entirely different description and of no commercial value. Therefore, in view of the aforesaid, no doubt the plaintiff (after proving its case that it has been supplied the goods of entirely different description), is not only entitled to reject the goods but also to claim the damages from the defendant no. 2 but this is subject to the plaintiff's proving its case of fraud to the extent that goods of entirely different description have been supplied.
The authority cited in (1974) 34 STC 6 (Mad) and in (1976) 4 SCC 505, again are of no assistance to the plaintiff for the reason that the said authorities were dealing with the entirely different subjects and situations.
26. Ld. counsel for the defendant, on the other hand contends that it is Page 42 of 49
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the bounden duty of the plaintiff to first prove its allegation that defendant no. 2 has committed the fraud by sending the goods of entirely different description and of no commercial value, i.e. the alleged books of annual reports of State Bank of India instead of 2 Kgs. of Hyoscine Butyl Bromide.
Ld. counsel for the defendant further contends that from the testimony of the plaintiff's witnesses and also from the documents placed on record by the plaintiff, plaintiff has miserably failed to establish its case that fraud has been committed by the defendant no. 2. He further contends that when the plaintiff was requiring the ordered material i.e. 2 Kgs. of Hyoscine Butyl Bromide on urgent basis, which is not only proved by the document Ex. PW-2/1A but also from the testimony of PW-1 when in his cross-examination, he admitted that the medicine (the ordered material) was required by the plaintiff on urgent basis, the plaintiff has failed to give explanation as to why, there is an unexplained delay of almost a month of receiving the ordered material when the goods were promptly delivered by the defendant no. 2. He further contends that there is a discrepancy in the plaintiff's explanation as to how the goods were transferred to the plaintiff's factory at Faridabad from the office of the defendant no. 1 bank at Delhi. On the one hand, in the cross-examination Page 43 of 49
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of PW-1, the witness deposes that the parcel/ordered material was sent through courier to the plaintiff's factory at Faridabad from the defendant no. 1's office at Delhi, on the other hand, in the letter dated 23.08.1997 of one of the employees, Sh. Hari Shankar to the Personnel Manager of the plaintiff company, he informs that "he has brought the parcel from the defendant no. 1's office at Delhi to the plaintiff's factory office at Faridabad.
27. From the testimony of the plaintiff's witnesses and the documents placed on record, I am of the view that the testimony of the plaintiff's witnesses in the light of the documents placed on record is unreliable to the extent that no positive evidence is forthcoming from the plaintiff's side as to the committal of fraud by the defendant no. 2 of sending the alleged books of annual report of SBI instead of the ordered material i.e. 2 Kgs. of Hyoscine Butyl Bromide. Merely because the plaintiff's witnesses are deposing that goods as ordered were not received is not sufficient for proving the plaintiff's case of commission of fraud by defendant no. 2. Something more concrete is required to be proved by the plaintiff so as to substantiate its averments made in the plaint. There is a heavy burden to be discharged by the plaintiff to Page 44 of 49
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prove its case of commission of fraud by the defendant no. 2.
Reference can be made to the judgment of the Hon'ble High Court of Karnataka in Savithramma Vs. H. Gurappa Reddy & Ors. AIR 1996 Karnataka 99 wherein it was observed that "It is well settled law that even within the province of civil litigation when an allegation of misrepresentation or fraud is made, that the level of proof required is extremely high and is rated on par with a criminal trial."
Reference can also be made to the judgment of the Hon'ble Supreme Court of India in Union of India Vs. Chaturbhai M. Patel & Co. (1976) 1 SCC 747 wherein it was observed that "It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt: per Lord Atkin in A.L.N. Narayanan Chettyar Vs. Official Assignee, High Court, Rangoon 1, However suspicious may be the circumstances, however strange the coincidences, and however grave the doubt, suspicion alone can never take the place of proof. In our normal life we are sometimes forced with unexplained phenomenon and strange coincidences, for, as it is said truth is Page 45 of 49
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stranger than fiction."
28. From the authorities as above cited and on the basis of the material placed before this court, I am of the opinion that plaintiff has failed to establish its case of commission of fraud by the defendant no. 2 on following counts :-
(i) Whereas the order for the supply of 2 Kgs. of Hyoscine Butyl Bromide was placed by the plaintiff on 28.07.1997, the delivery of the same as admitted by the plaintiff was taken on 23.08.1997, even when the ordered material was required by the plaintiff on urgent basis as is evident from the testimony of PW-1 and from the document Ex. PW-1/2A;
(ii) Even going by the preponderance of probabilities, plaintiff has failed to bring home its case of commission of fraud by defendant no. 2. Question can be raised as to plaintiff's allegation of fraud to the extent that the consignment, once taken by the plaintiff's employees' from defendant no.
1's office at Delhi, had remained in the hands of the plaintiff's employees' till it reached the plaintiff's factory office at Faridabad. Therefore, element of foul play by the plaintiff's employees' can not be ruled out as the Page 46 of 49
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consignment in the form of parcel was in the hands of employees' of the plaintiff after it being received from the defendant no. 1's office at Delhi;
(iii) Merely because the plaintiff informed various authorities including the defendant no. 1 and defendant no. 2 about the receiving of goods of entirely different description, it can not form the basis of the proof of commission of fraud by the defendant no. 2. As already stated, something more substantial by the plaintiff is required to be proved by the plaintiff. Further, not even a single photograph of the site where the parcel was opened has been placed on record by the plaintiff so as to substantiate its bare averments made in the plaint and the testimony of its witnesses.
29. After having carefully considered the material on record and from the above said discussion, I am of the opinion that the plaintiff has failed to prove its case of alleged commission of fraud by defendant no. 2. In fact, it appears that plaintiff, to hide some foul play played by one of its employees, had concocted the story of alleged commission of fraud by the defendant no.
2. It is, therefore, held that the amount of Rs. 1,19,055/- was for consideration, being the invoice value of the consigned goods. Further, it is Page 47 of 49
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held that the plaintiff has failed to establish its case of commission of fraud by the defendant no. 2. Once it is held that the amount of Rs. 1,19,055/- was for consideration and further the plaintiff having failed to prove its case of commission of fraud by defendant no. 2, it is held that the plaintiff is not entitled to the relief of mandatory injunction in the form of giving directions to the defendant no. 1 to release Rs. 1,19,055/- lying against draft bearing IBC No. 37 for Rs. 1,19,055/- or bank guarantee furnished or to be furnished in pursuance to the orders/judgment of the Hon'ble High Court. The issue no. 6, 7 & 8 are decided accordingly.
RELIEF
30. In view of the findings on the issues, it is held that the amount of Rs. 1,19,055/- is for valid consideration being the invoice value of the consignment of 2 Kgs. of Hyoscine Butyl Bromide and further that the plaintiff has failed to establish its case of commission of fraud by defendant no. 2. Hence, the suit of the plaintiff is dismissed with directions to the defendant no. 1 (bank ) to release the amount of Rs. 1,19,055/- lying with it Page 48 of 49
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along with the bank rate of interest as applicable, to the defendant no. 2. Interim orders, if any stands vacated. No orders as to costs. Decree sheet be drawn accordingly. File be consigned to Record Room.
Announced in open court:
Dated : 30th November, 2007 (SATISH KUMAR ARORA) (Three copies attached) CIVIL JUDGE, DELHI
This judgment contains 49 pages and each page bears my signatures. Page 49 of 49