Delhi District Court
Arun Chopra vs Sh. Vijay Wadhwa on 15 November, 2011
In the Court of Sh. Praveen Singh: Additional Senior Civil Judge
(New Delhi District), Patiala House Courts, New Delhi
Suit. No. 163A/10
Arun Chopra,
Proprietor
Span Advertising,
R636, New Rajinder Nagar,
New Delhi60. ....................... Plaintiff.
VERSUS
Sh. Vijay Wadhwa,
Proprietor,
Creative Signplus,
36, NDMC Market,
Connaught Circus,
New Delhi110001. .......................... Defendant.
Date of Institution : 09.09.2009.
Date of Arguments: 14.11.2011.
Date of Judgment : 15.11.2011.
SUIT FOR RECOVERY OF RS.57,500/ WITH INTEREST.
JUDGMENT :
Suit No. 163/09 1 of 16 The present suit for recovery of Rs.57,500/ has been filed by the plaintiff against the defendant.
2. The case of the plaintiff is that he is the proprietor of Span Advertising and is engaged in the business of advertising, screen printing and graphics imagining. The defendant approached the plaintiff and represented that he was carrying on the business of sign boards. The plaintiff then placed an order of LED sign board of 'Aircel'. In this regard, the plaintiff at the request of the defendant made an advance payment of Rs. 50,000/ vide cheque bearing no. 807391 dated 16.01.2009 drawn on Jammu & Kashmir Bank. Despite various reminders, the defendant failed to supply the said material to the plaintiff within the stipulated time. Finally, the plaintiff cancelled the purchase order and requested the defendant to refund the advance amount of Rs.50,000/. The plaintiff also issued through his counsel, a legal notice dated 10.08.2009 and called upon the defendant to refund the advance amount of Rs.50,000/ alongwith interest @ 24% p.a. within a period of seven days from the receipt of the notice. However, despite the receipt of the legal notice, the defendant failed to pay the amount and hence, the present suit for recovery of Rs.57,500/ including Rs.50,000/ towards principal amount alongwith interest of Rs.7,500/ @24% p.a w.e.f 16.01.2009 to 10.09.2009.
3. The defendant, on being served with the summons of the suit, filed Suit No. 163/09 2 of 16 the written statement. In the written statement, a preliminary objection was taken that the suit of the plaintiff is without any cause of action as the sign board, for which the order was placed by the plaintiff, was prepared within time and was installed at the assigned place at Infinity Tower, Gurgaon. However, the plaintiff failed to pay the balance invoice amount to the defendant and has filed the present suit by concealing true facts and hence, the suit is liable to be dismissed. A further preliminary objection was taken that for the recovery of balance invoice amount alongwith interest, the defendant had already filed a suit for recovery of Rs.1,12,463/ against the plaintiff, which is pending in the court of Sh. Lavleen Sharma, Civil Judge (Central), Tis Hazari and was fixed for 23.12.2009. It is submitted that that matter in issue in that suit and the present suit are same and hence, the present suit is liable to be dismissed.
4. On merits, it is denied that the defendant had approached the plaintiff for business. It is submitted that the plaintiff had placed an order for making an LED sign board of 'Aircel' and for its installation at 'Infinity Tower' Gurgaon. It is admitted that the plaintiff had advanced an amount of Rs. 50,000/. It is denied that the defendant failed to supply the said material (LED sign board) to the plaintiff within the stipulated time or, that despite various reminders being sent by the plaintiff, the defendant failed to supply the said material or, that the plaintiff was constrained to cancel the order Suit No. 163/09 3 of 16 and requested the defendant to refund the amount of Rs.50,000/. It is submitted that in fact, the said signboard was duly delivered to the plaintiff vide challan bearing no. 1121 dated 18.01.2009. The same was duly received by the plaintiff and the signboard was duly installed by the defendant at Infinity Tower, Gurgaon. It is submitted that the advance payment was made vide cheque dated 16.01.2009 and the signboard was delivered on 18.01.2009 and it was installed at the assigned place. Before delivery of the signboard, the plaintiff checked and approved it at the workshop of the defendant and thereafter, took the delivery and had taken (it) to their place. The plaintiff then directed the defendant to send his workers at the assigned place for installation of the signboard and thus, it was installed by the workers of the defendant. The defendant raised an invoice of the signboard, which totalled to Rs.1,51,963/, and demanded the balance amount of Rs. 1,01,963/ but the plaintiff failed to make the payment of the same and thus, the defendant served a legal notice dated 06.08.2009 upon the plaintiff. The said notice was duly served upon the plaintiff but, the plaintiff has cleverly concealed the same and sent a notice dated 10.08.2009 to the defendant incorporating therein a false and baseless story that the signboard was not delivered. It is denied that the defendant was liable to pay Rs.50,000/ to the plaintiff towards principal amount and Rs.7,500/ towards interest.
5. In the replication to the written statement, the contents of the written Suit No. 163/09 4 of 16 statement are denied and those of the plaint are reaffirmed.
6. From the pleadings of the parties, vide order dated 12.04.2010, following issues were framed by my learned predecessor: (1) Whether defendant failed to supply to the plaintiff LED sign board of 'Aircel' as ordered by plaintiff despite receiving an advance payment of Rs.50,000/? OPP.
(2) Relief.
7. Thereafter, both the parties led their respective evidence and the plaintiff examined himself as PW1 and Sh. Saminder Jeet Singh as PW2. On the other hand, the defendant examined himself as DW1.
8. I have heard learned counsel for the parties and perused the record very carefully.
9. Before giving issue wise findings, I have to deal with another point. The initial defence of the defendant was that the suit has to be stayed under section 10 CPC as his previously instituted a suit with regard to the amount, subject matter of the present suit, is pending decision at Tis Hazari Courts. However, on 14.11.2011, it has been clearly admitted by the defendant that this suit was filed before his suit. Therefore, I find that section 10 CPC is not applicable. My issue wise findings are as under: ISSUE NO. 1 : Whether defendant failed to supply to the plaintiff LED sign board of 'Aircel' as ordered by plaintiff despite receiving an Suit No. 163/09 5 of 16 advance payment of Rs.50,000/? OPP.
10. The admitted position is that the plaintiff had placed an order with the defendant. Pursuant to that order, the defendant was required to make and deliver an 'Aircel' LED signboard. It is also admitted that the plaintiff vide cheque dated 16.01.2009, advanced an amount of Rs.50,000/ to the defendant. The stand of the plaintiff is that the defendant failed to supply the said LED sign board.
11. In this regard, the plaintiff appearing as PW1 deposed that within the stipulated time, the defendant failed to supply the said material (LED sign board) to him. Thus, he gave various reminders to the defendant to supply the said material. Finally, he was constrained to cancel the purchase order and requested the defendant to refund the advance amount of Rs.50,000/. However, the defendant failed to refund the advance amount. Thus, he was constrained to issue a legal notice dated 10.08.2009. The copy of the legal notice is Ex.PW1/2 and the postal receipt is Ex.PW1/3.
12. During his cross examination, he deposed that he could not remember the date on which the order was placed by him and volunteered that he would be able to supply the date after perusing his record. He was confronted with para 3 of his examination in chief wherein it was stated that the defendant failed to supply the said material within stipulated time, then he stated, that the stipulated time was three days. He further deposed that Suit No. 163/09 6 of 16 there was no written agreement regarding the placement of order and the stipulated period. He further deposed that ordinarily, the orders were placed in writing and volunteered that in a number of transactions, the business was done on the basis of oral communications. He further deposed that there was no written communication for the purpose of reminding the defendant to supply the material. He denied that there was no written communication as the material had been received by the plaintiff. He was asked whether there was any document regarding cancellation of purchase order and he answered that he did not know whether, there was any such document and volunteered, that he might be able to produce the same after perusing his record. He admitted that his address was R636, New Rajinder Nagar, New Delhi and deposed that he did not receive the legal notice dated 06.08.2009. He admitted that the UPC dated 06.08.2009 contained correct details of his name, firm's name and the address. He denied that he had concealed the fact of receipt of legal notice dated 06.08.2009. He admitted that the legal notice Ex.PW1/2 was sent on his instructions by his Advocate but, he did not know the date on which the legal notice was sent. He denied that he instructed his Advocate to send Ex.PW1/2, only after the receipt of the legal notice dated 06.08.2009. He denied that the Ex.PW1/2 was a counter blast to the legal notice dated 06.08.2009. He denied that he was not entitled to receive Rs. 50,000/ alongwith interest from the defendant or, that the defendant was Suit No. 163/09 7 of 16 entitled to receive Rs.1,01,963/ from him. He was asked if it would be correct to say that in order to manufacture a LED board of the same kind, it took 67 days and he answered that he did not know. He denied that he had paid the amount of Rs.50,000/ as advance after seeing the unfinished LED board at the site of the defendant.
13. PW2 Sh. Saminder Jeet Singh deposed that he was in the business of selling L.E.D Modules. He deposed that he knew Arun Chopra because he had been supplying LED modules to Arun Chopra for last two and a half years.
14. During his cross examination, he deposed that he knew the defendant because, the defendant was a maker of signages where their products were used.
15. On the other hand, the defendant appearing as DW1 deposed that the total cost of the signboard ordered by the plaintiff was fixed at Rs.1,51,963/. After adjusting the advance received by him, the plaintiff was liable to pay a sum of Rs.1,01,963/ to him. The certified copy of the invoice is Ex.DW1/A. He further deposed that after getting the sign board installed, the intention of the plaintiff turned malafide and the defendant refused to pay the balance amount to him. For the recovery of the same, he filed a suit for recovery of Rs.1,12,463/, which was pending disposal at Tis Hazari Court, Delhi. He further deposed that vide delivery challan no. 1121 dated 18.01.2009, sign Suit No. 163/09 8 of 16 board was taken by the plaintiff's representative Sh. Meheer. The certified copy of the challan is Ex.DW1/B. He further deposed that the advance was received from the plaintiff on 16.01.2009. As the plaintiff wanted to show the sign board to his client at his workshop at Todapur, Delhi, the sign board was handed over to the plaintiff's representative on 18.01.2009. He further deposed that as ordered by the plaintiff, the sign board was fixed by his team on the building. He further deposed that the photographs of the building with sign board installed by him are Ex.DW1/H (Colly). He further deposed that it was only after the receipt of the notice that the plaintiff filed the present suit in order to delay his recovery and confuse the court. The office copy of the legal notice is Ex.DW1/C and the postal receipt and UPC receipts are Ex.DW1/D and Ex.DW1/E and the reply sent by the plaintiff is Ex.DW1/F.
16. During his cross examination, he deposed that it took 67 days to manufacture one board. He further deposed that the order was placed after he had sent a quotation through mail. He admitted that he had mentioned a condition that job work would start after receiving 50% of the consideration amount in advance. The order was placed by the plaintiff around 10th January, 2009. He further deposed that it is not necessary that he would only start manufacturing the signboard after receiving 50% of the consideration amount in advance and volunteered, that it would depend on the kind the Suit No. 163/09 9 of 16 relationship he had with the client. He further deposed that prior to the present transaction, he never had any business dealing with the plaintiff. He had started LED signboards on 10.01.2009. He denied that the order was placed by the plaintiff on 16.01.2009 or the manufacturing of the signboard was started thereafter. He further deposed that the signboard was delivered by him at his workshop. On the instructions of the plaintiff, the signboard was delivered to the representative of the plaintiff namely Mr. Mihir. He did not check the identity of Sh. Mihir because, when the plaintiff had come to his workshop for the first time, the plaintiff was accompanied by the said Mr. Mihir. He further deposed that as the signboard was delivered to the plaintiff at his workshop, he could not have claimed any cartage. He further deposed that Rs.6,500/ mentioned as cartage and installation charges were mentioned under one head as the same included installation also. He denied that no signboard, as alleged by him, was ever delivered to the plaintiff. The delivery challan Ex.DW1/B was prepared by his father. The same bore the signature of his father at point A. He admitted that the address upon the delivery challan was mentioned as R636, New Rajinder Nagar, New Delhi. He denied that Ex.DW1/B was a forged and fabricated document. The LED signboard was installed by his employees on 20th January. He did not take any certificate that his product was working properly after installation because, the party for whom, the signboard was manufactured and at whose Suit No. 163/09 10 of 16 place it was installed, was not his client but, was a client of the plaintiff. Therefore, the certificate of satisfactory working was to be obtained by the plaintiff for his own use. He further deposed that there was no specific certificate that the product manufactured by him was working satisfactorily. However, the delivery challan was signed by the representative of the plaintiff after testing the product and, it bore an endorsement that the material was received in good condition. He denied that the delivery challan Ex.DW1/B did not bear the signatures of Mr. Mihir nor had he taken the delivery of the goods. He had not received the AD card of the notice Ex.DW1/C sent vide Ex.DW1/D. He denied that neither the legal notice Ex.DW1/C was sent on his behalf nor was it received by the plaintiff. He denied that as he had not supplied the goods, the plaintiff had cancelled the order but despite the same, he failed to return the advance as paid by the plaintiff.
17. Now, the onus to prove that the defendant had not supplied the goods to him was upon the plaintiff. The plaintiff claims that he placed an order on 16.01.2009. The order was to be completed within three days but the defendant failed to do so. He deposed that he sent various reminders to the defendant for supplying the material. However, during his cross examination, he deposed that he did not have any written communication with regard to these reminders with the defendant. He denied that he had no Suit No. 163/09 11 of 16 such written communication because no, such reminders were issued as the material had been received by him. What is noticeable is, that the plaintiff claims to have sent various reminders to the defendant and finally cancelling the order, but nothing of this sort was done in writing. The first communication with regard to the non supply of the product which was to be supplied within three days from the date of order was done on 10.08.2009 and, this was vide the legal notice Ex.PW1/2. It appears highly improbable that a man, who has made an advance payment for a product to be supplied within three days of that advance payment and, who after the non supply of the product has cancelled the order, would wait for seven months before making his demand in writing. It is also to be noticed that when he was asked whether, he had any document of cancellation of order, the plaintiff deposed that he might be able to produce the same after perusing his record. At this stage, the cross examination of the plaintiff was deferred. On the next date of his cross examination, the plaintiff never volunteered to produce any document showing the cancellation of the purchase order. Now, certainly the probable circumstance would have been that had the ordered product not been supplied by the defendant, the order being a commitment to a third party, the plaintiff would have either manufactured the product himself or got it manufactured from somebody else and supplied it to the third party. The plaintiff has nowhere shown Suit No. 163/09 12 of 16 anything on record that on the failure of the defendant to supply the product, he himself manufactured it or procured it from somewhere else and then supplied it to his client. Another scenario could have been that his client might have cancelled his order and, the plaintiff's client, being a big telecom company, the order would certainly have been cancelled in writing stating that it had been cancelled for non supply of the goods. The plaintiff has also failed to produce any such thing on record.
18. On the other hand, there is the testimony of the defendant which says, that the goods were supplied and delivered to the employee of the plaintiff namely Sh. Mihir. He further deposed that the goods were supplied vide challan Ex.DW1/B. The plaintiff has nowhere challenged that part of the testimony where it was stated that said Mihir was an employee of the plaintiff. On the contrary, during the cross examination of DW1, he was asked that whether, he had sought any identification from the said Mihir and DW1 i.e. the defendant, had categorically replied that he did not ask for any identification because, the said Mihir had accompanied the plaintiff to his workshop when the plaintiff visited his workshop for the first time. That the plaintiff was accompanied by the said Mihir when for the first time, he visited the workshop of the defendant, was nowhere controverted. Therefore, in view of these uncontroverted facts, I can safely hold that the plaintiff had not challenged the testimony of the defendant whereby he had Suit No. 163/09 13 of 16 stated that the said Mihir was an employee of the plaintiff.
19. However, the plaintiff has stated that the document Ex.DW1/B is a forged document. The defendant appearing as DW1 has denied this suggestion. The defendant was asked whether he could produce any certificate to show that the product manufactured by him was working satisfactorily. He then stated that he had no certificate of satisfactory working of the product but the delivery challan was signed by the representative of the plaintiff after testing the product and it bore an endorsement that the material was received in good condition. He denied that the delivery challan Ex.DW1/B did not bear the signatures of Mr. Mihir nor had the said Mr. Mihir taken the delivery of the goods. On the one hand, the plaintiff states that the document Ex.DW1/B is a forged document and the said Mr. Mihir has not taken the delivery and on the other hand, plaintiff nowhere denies that the said Mr. Mihir was his employee. Therefore, nothing prevented the plaintiff from producing the said Mr. Mihir in the witness box and to have his signatures compared with the signatures upon the delivery challan Ex. DW1/B, which states that the goods have been received in good condition. Why the plaintiff has not done so, is unexplained. The probability is that the plaintiff has not brought the said Mr. Mihir in the witness box to deny the assertion of the defendant that the said employee has received the goods because, the goods were in fact Suit No. 163/09 14 of 16 received by the said employee of the plaintiff. It is also to be noticed that the testimony of the defendant that he installed the signboard at the site of the client of the plaintiff or that Ex.DW1/H are the photographs of the building where the signboard was installed by him, has been entirely unrebutted.
20. Learned counsel for the plaintiff has further contended that the defendant has admitted that the signboard was delivered to the plaintiff at his workshop, therefore, he could not have claimed any cartage. Relying upon this testimony, learned counsel for the plaintiff has contended that Ex.DW1/A is a forged and fabricated document as it reflects the charges of cartage despite the fact, that there could not have been any cartage as the goods were allegedly delivered at the workshop of the plaintiff.
21. I disagree with this contention of the learned counsel for the plaintiff because the witness has clearly explained that Rs.6,500/ has been mentioned as cartage and installation charges and the same included installation also. In the light of the fact that the testimony of DW1, that he had installed the signboard, is unrebutted, I find that the defendant could very well have claimed the installation charges.
22. In view of the my above findings, I find that the plaintiff by preponderance of probabilities has failed to establish the non delivery of the product as ordered by him and on the contrary, all the circumstances make it highly probable that the product i.e. LED signboard of 'Aircel' was supplied Suit No. 163/09 15 of 16 by the defendant to the plaintiff. The issue is accordingly decided against the plaintiff.
RELIEF:
23. In view of my above findings, the plaintiff is not entitled to any relief as prayed for. The suit of the plaintiff is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the (PRAVEEN SINGH) open court on 15.11.2011 Additional Senior Civil Judge, (This judgment contains sixteen pages (New Delhi District), New Delhi. and each page bears my signatures.) Suit No. 163/09 16 of 16