Delhi District Court
Sh. Satya Narain Gupta vs M/S. Navjivan Roller Flour & Pulse Mills ... on 26 April, 2007
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IN THE COURT OF SH. PARAMJIT SINGH
ADDL. DISTRICT JUDGE : DELHI.
RCA NO. 16/05
Sh. Satya Narain Gupta
Sole Proprietor,
M/s. Navjivan Trading Co.,
1102, Kucha Natva,
Delhi. ......Appellant
Vs.
1. M/s. Navjivan Roller Flour & Pulse Mills Ltd.
Kumbherwara, Opp. Market Yard,
Dahod - 389151, Distt. Panchmahal,
Gujrat.
2. M/s Suraj Traders,
Through Sh. Suraj Prakash,
2716/4 Gali Pate Wali,
Naya Bazar,
Delhi -110006 ... Respondents
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JUDGMENT
The present appeal has been filed by the appellant against the impugned judgment/decree dated 11.2.2005 passed by the Ld. Trial Court in Suit No.145/98.
Cross Objections u/o 41 rule 22 r/w Section 151 CPC have also been filed on behalf of the respondent No.1.
2. Brief facts necessary for the disposal of the present appeal and Cross Objections are that the plaintiff (appellant herein) filed a suit for recovery before the Ld. Trial Court wherein it was stated that the plaintiff was Sole Proprietor of M/s Navjivan Trading Company which is dealing in the business of cattle feeds and he made a contract with the defendant No.1 (respondent No.1 herein) through the defendant No.2 (respondent No.2 herein) for sale of 2000 bags of Gram Husk of 25 kg bags @ Rs.100/- per bag on 10.9.1997. The price of the goods was to be paid by 3 the plaintiff to the defendant No.1 by way of bank draft within one week of the receipt of the goods. The plaintiff was also required to pay the transportation charges on the receipt of the goods. The plaintiff alleged that the aforesaid agreement was breached by the defendant No.1 because of a rise in the market rate of Gram Husk and the defendant No.1 failed to supply the aforesaid goods to the plaintiff and accordingly the plaintiff got issued a notice dated 7.1.1998 to the defendants demanding supply of goods. The said notice also stipulated for damages @ Rs.37.50 per bag with interest @ 18% per annum in case the goods were not supplied. It is stated that the said notice was not complied and the goods were also not supplied which led to the filing of the suit for recovery before the Ld. Trial Court.
The defendants contested the aforesaid suit and filed the written statement wherein the defendant No.1 also disputed the territorial jurisdiction of the Ld. Trial Court u/s 20 (b) CPC. All other averments 4 made in the plaint were also denied on behalf of the defendants. Thereafter the issues were framed by the Ld. Trial Court and after the trial, the aforesaid suit filed on behalf of the appellant/plaintiff was dismissed vide impugned judgment/decree dated 11.2.2005 which resulted in filing of the present appeal.
3. Upon the filing of the present appeal , the notice of the appeal was issued to the respondents and the respondent No.1 entered the appearance and contested the present appeal. None appeared on behalf of respondent No.2 despite service.
Trial Court Record (hereinafter referred as "TCR")was also summoned and TCR has been received.
4. I have heard the arguments put forward by the Ld. Counsels for appellant and respondents and have carefully gone through the record of 5 the case.
5. In the present case, in addition to the appeal filed on behalf the appellant, Cross Objections u/o 41 rule 22 r/w Section 151 CPC have also been filed on behalf of the respondent No.1 wherein it has been stated that the findings of the Ld. Trial Court on Issue No.-2A are erroneous and that the Ld. Trial Court has failed to appreciate that the Courts at Delhi were not having the territorial jurisdiction to try the suit filed on behalf of the plaintiff. It is submitted that the Ld. Trial Court did not appreciate the fact that there was no privity of the contract between the respondent No.1 and the appellant at any stage of time to enable the appellant to institute a suit for recovery of alleged damages. It is further submitted that the Ld. Trial Court has failed to appreciate that the respondent No.1 does not hold any office or carries on any business activities at Delhi and as such the Ld. Trial Court has no territorial 6 jurisdiction to entertain the suit in terms of the provisions of Section 20 (B) of the CPC.
It has been submitted that the Ld. Trial Court has failed to appreciate that the respondent No.2 was never appointed as an Agent and did not hold any agency on behalf of the respondent No.1 as required u/s 182 of Indian Contract Act and that the suit of the plaintiff was barred u/s 2, 4 and 7 of Indian Contract Act r/w Section 2 (A), 5 and 27 of the Sales of Goods Act.
It is further submitted that the Ld. Trial Court failed to appreciate the law down in the cases cited as 95 (2000) DLT 84 and 57 DLT 5002 regarding the territorial jurisdiction of the court and it has been prayed that the present cross objections filed on behalf of the respondent No.1 may be accepted and the appeal filed on behalf of the appellant may dismissed.
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6. On the other hand, it has been submitted on behalf of the appellant that the courts at Delhi have the territorial jurisdiction to try the suit filed on behalf of the appellant/plaintiff as the respondent No.2 i.e. Broker of the respondent No.1 works for gain at Delhi and the goods were to be supplied at Delhi and the payment was also to be made at Delhi. It is further submitted that a part of the cause of action also arose within the territorial jurisdiction of the courts at Delhi and as such the Courts at Delhi have the territorial jurisdiction to try the suit filed on behalf of the plaintiff.
7. I have carefully considered the arguments on the Cross Objections put forward by the Ld. Counsels for the respondent No.1 and the appellant and have carefully gone through the record of the case . I have carefully perused the TCR and the case law relied upon by the Ld. Counsels for the respondent No.1 and the appellant. 8
8. It has been submitted on behalf of the respondents that the findings of the Ld. Trial Court on Issue No.-2A are erroneous on facts as well as in law as the Ld. Trial Court has failed to appreciate that there was no privity of contract between the respondent No.1 and the appellant and the respondent No.1 does not hold any office or carries on any business activities at Delhi and as such the Ld. Trial Court has no territorial jurisdiction to try the suit filed on behalf of the appellant/plaintiff, however, the aforesaid submissions made on behalf of the respondents are devoid of any merits and are also contrary to the record as the perusal of the impugned judgment shows that the Ld. Trial Court has properly dealt with the aforesaid issue of territorial jurisdiction and have come to the correct conclusions on the basis of the material available on record.
The perusal of the impugned judgment dated 11.2.2005 further shows that the Ld. Trial Court has properly appreciated the evidence in 9 respect of the territorial jurisdiction of the courts at Delhi and has rightly observed that the PW-1 had deposed in his cross examination that he had telephoned to the defendant No.1 for loading the goods and it was upon the plaintiff to prove that he has made a telephonic call at the office of the defendant No.1 and he did so by deposing on oath. This factum regarding the telephone call is also corroborated from the suggestions given to the PW-1 on behalf of the respondents and the said suggestion read as under :-
"It is incorrect that I had telephoned to Sh. Girdhar Seth of the defendant No.1 and he had stated that the goods will be supply on turn. It is incorrect to suggest that I did not make any telephone call. "
In respect of the aforesaid suggestions given to the PW-1, it has been correctly observed by the Ld. Trial Court that the former suggestion will imply that the telephone call was indeed made by the PW-1 and it 10 also implies that said Sh. Girdhar Seth has also stated to the plaintiff that the goods will be supplied on turn. It has been rightly observed by the Ld. Trial Court that as the communication is over the telephone, the communication of acceptance would be said to be complete at Delhi in terms of the observations made by the Hon'ble Supreme Court in the case reported as AIR 1966 SC 543. In these circumstances and in view of the aforesaid observations made by the Ld. Trial Court and in view of the provisions of Section - 20 of the CPC, I am of the considered opinion that the Ld. Trial Court came to the correct conclusion that a part of cause of action in the present case have arisen at Delhi and as such the courts at Delhi have the territorial jurisdiction to try the suit filed on behalf of the plaintiff.
Ld. Counsel for the respondent has relied upon the case law cited as 95 (2000) DLT 84 and 57 (1995) DLT 502, however, the said case law is not applicable in the present case as the fact and 11 circumstances of the present case are different from the fact and circumstances of the cases discussed in the aforesaid case law and in my considered opinion, the aforesaid case law is not of any help to the respondents as has been rightly held by the Ld. Trial Court in the impugned judgment.
9. Thus, in view of the aforesaid discussions and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the Cross Objections u/o 41 rule 22 r/w section 151 CPC filed on behalf of the respondent No.1 are devoid of any merits and the same are accordingly dismissed.
10. The present appeal has been filed on behalf of the appellant against the impugned judgment/decree dated 11.2.2005 passed by the Ld. Trial Court in Suit No.145/98.
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It has been submitted on behalf of the appellant that the Ld. Trial Court has not properly adjudicated the pleadings as well as the evidence adduced by both the parties and that the Ld. Trial Court has not properly appreciated the provisions of Section - 73 of the Indian Contract Act and has wrongly held that the appellant has to prove the actual damages suffered by him. It is submitted that the Ld. Trial Court while deciding the Issue No.1 illegally held or considered that in the instant case no special circumstances behind the order of supply of gram husk and consequences of non-supplying within the stipulated time have been urged by the appellant. It is further submitted that the Ld. Trial Court has illegally relied upon the documents Ex. DW-1/2 to Ex. DW-1/5, although the relevancy of the documents have not been shown from the side of the respondent No.1. It is stated that the Ld. Trial Court has failed to appreciate that the order/goods which were booked by the respondent No.2 on behalf of the respondent No.1 on 10.9.1997 were not supplied 13 with malafide intentions because the rates of the goods were increased later on.
11. It has been submitted that the Ld. Trial Court has not properly considered the statement of PW-1 for deciding the actual damages suffered by the appellant for non supply of the goods from the side of the respondent No.1. It is submitted that the Ld. Trial Court has also not properly appreciated the statement of the witnesses while deciding the Issues No. 1, 2 & 3. It is further submitted that the Ld. Trial Court has also not properly appreciated the statement of PW-2 and PW-3 and has also failed to appreciate the fact that none of the Directors in the respondent No.1 company has appeared in the witness box and relevant documents were also not produced on behalf of the respondent No.1 and as such the Ld. Trial Court should have drawn the adverse inference against the defendant No.1/respondent No.1 which it has failed to do. It 14 has been submitted that the impugned judgment/decree is totally illegal, erroneous and against the law. It is further submitted that the entire findings of the Ld. Trial Court are based on surmises and conjunctures and it has been prayed that the present appeal filed on behalf of the appellant may be allowed and the impugned judgment/decree dated 11.2.2005 may be set aside.
In support of his contentions, Ld. Counsel for the appellant has relied upon the case law cited as 2005 RLR 308.
12. On the other hand, it has been submitted on behalf of the respondents that the present appeal filed on behalf of the appellant is not maintainable as appellant is guilty of suppression of material facts and have not come to the court with clean hands. It is submitted on behalf of the respondents that the appellant has failed to show or point out any illegality or irregularity in the impugned judgment/decree dt. 15 11.2.2005 passed by the ld.Trial Court. It is further submitted that the ld.Trial court has correctly appreciated the evidence adduced by the parties and have come to the correct conclusions and has rightly dismissed the suit filed by the appellant.
13. It has been further submitted that the findings of the Ld. Trial Court on all the Issues apart from the Issue No.2 A are in accordance with law. It is submitted that there was no contract between the respondent No.1 and the appellant and it has been rightly held by the Ld. Trial Court that the respondent is not liable to pay any damages to the appellant. It has been further submitted that the Ld. Trial Court has properly appreciated the documentary as well as oral evidence adduced by both the parties during the trial of the case. It is submitted that the Ld. Trial Court has given proper findings on the various issues and has come to the correct conclusion that the plaintiff is not entitled to the amount of 16 damages as claimed for in the suit. It is further submitted that there is no illegality in the impugned judgment/decree dated 11.2.2005 passed by the Ld. Trial Court and it has been prayed that the present appeal filed on behalf of the appellant may be dismissed with cost.
In support of his contentions, Ld. Counsel for the respondent has relied upon the case law cited as 1996 IV AD (Delhi) 123 and AIR 1961 A.P 408.
14. I have carefully considered the arguments on appeal put forward by the Ld. Counsels for appellant and respondents and have carefully gone through the record of the case.
I have carefully gone through the impugned judgment/decree dated 11.2.2005 passed by the Ld. Trial Court and have also carefully perused the TCR and the case law relied upon by the Ld. Counsels for the appellant and respondents.
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15. In the present case, a suit for recovery was filed on behalf of the appellant/plaintiff against the respondent/defendants. The defendant / respondents contested the said suit and after trial, the aforesaid suit filed on behalf of the appellant/plaintiff was dismissed vide impugned judgment/decree dated 11.2.2005 passed by the Ld. Trial Court.
It has been submitted on behalf of the appellant that ld. Trial Court has not properly adjudicated upon the pleadings of the parties and that ld. Trial Court has not properly appreciated the provisions of Section -73 of Indian Evidence Act. It is also submitted that ld. Trial Court while deciding the Issue no.1 has illegally held that in the instant case no special circumstances behind the order of supply of gram husk and consequences of non-supplying within the stipulated time have been urged by the appellant/ plaintiff, however the aforesaid submissions made on behalf of the appellant are devoid of any merits and are contrary to the record as perusal of the record shows that ld. Trial Court 18 has properly dealt with the pleadings of the parties and have also properly appreciated the provisions of Section -73 of Indian Contract Act and has rightly observed that the present case is to be governed by the principles of Section -73 of Indian Contract Act which stipulates compensation for loss or damages caused by breach of contract and in the present case no special circumstances behind the order of supply of gram husk and consequences of non-supplying within the stipulated time have been urged by the appellant/plaintiff and thus the question that the damages arising from any breach which were in the knowledge of the parties does not arise. It is to be seen whether any loss or damages was caused to the plaintiff on account of breach which naturally arose in the usual course of things on the such breach and the onus was upon the plaintiff to account for the damages suffered by him due to breach of contract dt. 10.9.97, however the perusal of the evidence adduced by the parties and the perusal of the record shows that 19 there is nothing in the testimonies of the plaintiff's witnesses to point out the extent of damages suffered by the plaintiff on account of breach of contract. In this regard, it has been rightly observed by the ld. Trial Court that it was incumbent upon the plaintiff to prove the actual loss by stating that he was compelled to purchase the aforesaid quantity of gram husk from some other person at a different and enhanced price but the same has not been done and as such no actual damages have been brought on record in respect of which the plaintiff could be compensated on account of breach of contract .
16. It has been submitted on behalf of the appellant that the ld. Trial Court has failed to appreciate that the goods were not supplied to appellant/plaintiff by the respondent with malafide intention because the rates of goods were increased later on. It is further submitted that ld. Trial Court has wrongly relied upon the documents Ex. DW1/2 to Ex. 20 DW1/5 filed on behalf of the defendant/respondents, however the aforesaid contentions put forward on behalf of the appellant does not hold water and are contrary to record as perusal of the record shows that ld.Trial Court has properly dealt with the issue of non supply of goods and have properly appreciated the aforesaid documents filed on behalf of the defendant. In this regard, it has been rightly observed by the ld.Trial Court that the actual loss or damage on account of breach of contract was to be proved by the plaintiff, however the same has not been done. It has also been rightly held by the ld. Trial Court that merely because increased rates have been shown by the plaintiff he cannot be awarded damages in the absence of proof of actual loss as it was incumbent upon the plaintiff to prove the actual loss on record so as to entitle him to recover the damages thereof from the defendant/respondent.
17. It has been submitted on behalf of the appellant that ld. Trial 21 Court has not properly considered the statements of PW-1 to PW-3.It is further submitted that ld. Trial Court has also not properly appreciated the evidence adduced on behalf of both the parties,however the perusal of record and perusal of the impugned judgment shows that the aforesaid submissions made on behalf of the appellant are devoid of any merits and are contrary to record as the ld. Trial Court has properly considered the statements of PW-1 to PW-3 and has also properly appreciated the evidence adduced on behalf of both the parties and after proper appreciation of the evidence, ld. Trial Court has come to just and reasonable conclusions and in my considered opinion, the findings returned by the ld.Trial Court are apt and accurate .
Further ld. Counsel for the appellant has relied upon the case law cited as 2005 RLR 308, however the aforesaid case law is not applicable in the present case as fact and circumstances of the present case are different from the fact and circumstances of the case discussed 22 in the aforesaid case law and in my considered opinion, the aforesaid case law is not of any help to the appellant in the present case.
18. It has been submitted on behalf of the appellant that the entire findings of the ld. Trial Court are based on surmises and conjunctures, however the aforesaid contention put forward on behalf of the appellant does not hold water as the perusal of the impugned judgment shows that it has been passed on the basis of proper appreciation of the material on record and is based upon cogent and sound reasoning.
19. Thus, in view of the aforesaid discussion and observations, I am of the considered opinion that there is no illegality or infirmity in the impugned judgment/decree dt. 11.2.2005 passed by the ld.Trial Court in Suit No. 145/98 . Accordingly the present appeal filed on behalf of the appellant against the aforesaid impugned judgment/decree dt. 23 11.2.2005 is hereby dismissed.
TCR alongwith copy of this judgment be sent back to the ld. Trial Court.
Decree sheet be prepared accordingly.
Appeal file be consigned to the record room.
(Announced in the open) (PARAMJIT SINGH)
(court on 26.4.2007) Addl. District Judge Delhi
26.4.2007
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