Delhi High Court
M/S. U.P. State Textile Corporation ... vs Shri Naresh Chander on 7 March, 2011
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.258/1997
% 7th March, 2011
M/S. U.P. STATE TEXTILE CORPORATION LIMITED ...... Appellant
Through: Mr. Rakesh Agarwal with
Mr. Pulkit Agarwal, Advocates
VERSUS
SHRI NARESH CHANDER ...... Respondent
Through: Mr. Sharat Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 29.5.1997 whereby the suit of the respondent/plaintiff for recovery of Rs.44,000/- was decreed. Decree was passed for the claim with respect to payment due for supply of jute cloth by the respondent/plaintiff to the appellant/defendant, a state Government Undertaking. RFA No.258/1997 Page 1 of 5
2. The case of the respondent/plaintiff in the Trial Court was that the material was supplied under Bill nos.718, 735 and 806 dated 1.1.83, 27.1.83 and 17.4.83 for Rs.5,150/-, Rs.17,110/- and Rs.13,000/- respectively. It was claimed that the consignment was duly received by the appellant/defendant and since payment was not made, the suit came to be filed.
3. The appellant/defendant appeared and contested the suit on the ground that it had no dealing with the respondent/plaintiff and its dealing was with only one M/s. Anuradha Sales Corporation. The appellant/defendant claimed that it never placed any purchase order with the respondent/plaintiff and therefore no written purchase orders were filed by the respondent/plaintiff. The appellant/defendant stated that it had no privity of contract with the respondent/plaintiff, and the appellant/defendant had already made payment with respect to the material received to M/s. Anuradha Sales Corporation.
4. The Trial Court after the pleadings were complete, framed the following issues:-
"1.Whether the Delhi Court has territorial jurisdiction to trial the suit? OPP.
2. Whether the goods supplied by the plaintiff of plaintiff to the defendant were on behalf of Anuradha Sales Corporation as alleged? OPP.
3. Whether the plaintiff is entitled for the interest and if so what rate and what period?RFA No.258/1997 Page 2 of 5
4. Whether defendant had made the payment to Anuradha Sales Corporation if so its effect? OPP.
5. The plaintiff has examined one witness and the defendant has examined two witnesses in suit of its case."
5. The only issue, which was the real issue before the Trial Court and which issue was also argued before me, was, whether the goods which were received by the appellant/defendant were received by it on account of orders placed by the appellant/defendant with M/s. Anuradha Sales Corporation or did the respondent/plaintiff supply the goods independently to the appellant/defendant? Admittedly, the respondent/plaintiff did not file on record the alleged bills/invoices under which the goods were supplied to the appellant/defendant. The respondent/plaintiff also did not file on record any purchase order of the appellant/defendant with respect to the goods supplied. The witness who appeared on behalf of the appellant/defendant, and which already stated above is a State Government Undertaking, brought its ledgers in the Court which showed that no account was maintained by it of the respondent/plaintiff and the only account maintained was of M/s. Anuradha Sales Corporation. The witness also deposed that no oral orders were ever placed. I note that the respondent/plaintiff in the Trial court, was directed to file copies of the pleadings with respect to a litigation pending between the respondent/plaintiff and M/s Anuradha Sales Corporation, however, in spite of directions of the Court, such pleadings were not filed.
6. The Trial Court has decreed the suit on the ground that the appellant/defendant had issued a Sales Tax/ST form in favour of the RFA No.258/1997 Page 3 of 5 respondent/plaintiff and which showed that the contract was with the respondent/plaintiff and not with M/s. Anuradha Sales Corporation. The stand of the appellant/defendant in the Trial Court was that the form was issued blank, and which has been got filled by the respondent/plaintiff in its own name. In fact, along with the appeal, the appellant/defendant has filed an application for bringing on record additional evidence under Order 41 Rule 27 CPC, being CM No.1218/1997, accompanied with the original of the counter-foils of the ST forms with respect to the subject transaction and which show that the said forms were blank.
7. In my opinion, the impugned judgment and decree is illegal and perverse and therefore is liable to be set aside. The respondent/plaintiff failed to prove any invoices on record issued to the appellant/defendant. Respondent/plaintiff also failed to file/produce any purchase order placed by the appellant/defendant upon him. The witness of the appellant/defendant Sh. Sudhish Chander Jain, DW1, clearly deposed that the Government Undertaking/appellant/defendant never placed any oral purchase order. I am inclined to believe this statement. The other reason for believing such statement is that there is no account of respondent/plaintiff in the books of account of appellant/defendant, and which original ledgers were brought to the Court. Such original ledgers maintained in the regular course of the business, ought to be believed. In my opinion, an adverse inference is also liable to be drawn against the respondent/plaintiff because he was directed RFA No.258/1997 Page 4 of 5 to produce the pleadings of the litigation pending between him and M/s. Anuradha Sales Corporation and which however were not filed. As per Section 114 of the Evidence Act, 1872, a presumption needs to be drawn against the respondent/plaintiff that the person who refuses to file such pleadings does so only because the contents of the said documents would go against him. The fact of the matter is that the appellant/defendant had already made payment for the goods received to M/s. Anuradha Sales Corporation. The appellant cannot therefore be burdened twice over. In my opinion, there is just and sufficient cause and the interest of justice which requires the additional evidence in the form of original blank ST forms which have been filed by the appellant/defendant to be taken on record and be considered for disposal of the appeal. In fact, I would go to the extent of stating that such evidence is required by this Court suo moto in order to do justice, because, otherwise, the appellant/defendant would suffer double liability.
8. In view of the above, I accept the appeal. The impugned judgment and decree is set aside. The suit of the respondent/plaintiff will therefore stand dismissed. Parties to bear their own costs. Decree sheet be prepared. Trial Court record be sent back.
MARCH 07, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.258/1997 Page 5 of 5