Delhi District Court
Ms Mayur Air Product Pvt. Ltd vs Ms Kirloskar Pneumatic Co. Ltd on 3 September, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
ADDITIONAL DISTRICT JUDGE-06
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ NO. 6167/16
CNR No. DLST01-000024-2008
M/s. Mayur Air Products (P) Ltd,
Registered Office/Factory at:
B-49, Okhla Industrial Area,
Phase-I,New Delhi 110020.
(Through authorized representative /
Attorney) .....PLAINTIFF
VERSUS
M/s Kirloskar Pneumatic Co.Ltd.
Registered Office at:
1, Hadapsar Industrial Estate,
Pune- 411 013 (India)
(Through its Chairman / Managing
Director/Authorized Representative)
ALSO AT:
Delhi Office/Branch Office/
Marketing office at:
607, Manjusha Building,
57,Nehru Place,
New Delhi 110 019. .....DEFENDANT
Date of Institution : 10.12.2008
Date of conclusion of Arguments : 23.04.2025
Date of Judgment : 03.09.2025.
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 1 of 20
SUIT FOR RECOVERY FOR RS.19,98,000/- FOR VALUE,
LOSS OF PRODUCTIVITY ETC
JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of Rs. 16,02,890 against proforma invoice No. 27175 dated 10.10.2005 and payment of Rs. 1,20,973/- against proforma invoice no. 27180 dated 10.10.2005 against the defendant. Plaintiff has also prayed to pass a decree of Rs. 3,95,110/- for loss of production during the repairs/ replacement of parts and trial besides cost of productive labour of the period, cost of gas, electricity etc.
2. It is averred that the plaintiff is a Private Limited Company, registered under "The Indian Companies Act. the office of 1956", as amended upto date, in its Registrar of Companies at New Delhi and is running the business as manufacturers, processors etc; all types of Industrial, domestic, medicinal of other and gases etc; besides welding rods, electrical welding electrodes etc; as mentioned in the Main Object Clause and other objects of Memorandum & Articles of Association of the plaintiff company.
3. It is averred that the defendant No.1, is Public Limited Company and is the manufacturers of Air Compressor, Air- conditioning & Refrigeration And Transmission Equipment etc whereas the defendant No.2, is the Marketing & controlling office of defendant No.1 in Delhi, for promoting business, sales & marketing, including undertaken repairs & maintenance work / job, supply of manufactured products of defendant No.1 in Delhi CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 2 of 20and other adjoining areas, under the control and on behalf of defendant No.1.
4. It is further averred that the representatives of defendants who had been regularly visiting the works / factory of the plaintiff at Okhla for advertise & promotion of their manufactured products had provided detail brief of their company products and explained its working performance, productivity and assured better & satisfactory performance in future and further assured to meet out the specific purpose & requirements of plaintiff company, as the plaintiff company needs some modifications and for better productivity in the plant /factory at: B-20, Okhla Industrial Area, Phase-I, New Delhi 110020.
5. On the representations and name & reputation of defendants of the products in the market, the plaintiff company had place the order for Air compressor Model B4 DQHT to the representative (s) of defendant No.2 at Delhi, who have then supplied B 4 DQHT (skid-mountd) 650 RPM with HP 5Q-CAGL SPDP Motor with suitable soft starter to the plaintiff company on consignment basis and raised proforma invoice no. 271175 dated 10.10.2005 for Rs. 14,81,917/-. The plaintiff company had paid the said amount by cheque no. 399802 dated 26.12.2005 for Rs. 14,81,917/, drawn on State Bank of Bikaner & Jaipur, Krishna Nagar, New Delhi-110051, in favour of defendants. The defendant no. 1 has debited/adjusted the said loan account payment/amount including statutory obligations i.e. Excise Duty, Education cess and Central Sales Tax @ 4% against Form C, the CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 3 of 20aforesaid proforma invoice and issued debit note no. 5000621 dated 10.12.2005 to adjust the amount of excise duty deposited on the supplied goods.
6. It is further averred that the defendant no. 1 dispatched the said model Air compressor with product group vide truck no. HR 38 D 8836 along with dispatch certificate dated 10.12.2005 from their factory. The defendant no. 1 also raised performa invoice no. 27180 dated 10.10.2005 and the plaintiff has made loan account payment of the said invoice through cheque no. 440568 dated 29.11.2005 for Rs. 1,20,973/- drawn on State Bank of Bikaner and Jaipur, Krishna Nagar, Delhi. The plaintiff company had raised the issue of non satisfactory / working performance with other customers and lodged the complaint to the representative of defendants at Delhi office on 12.04.2006. The plaintiff company has also obtained the report from other companies where the similar model of Air compressor have been installed by the defendants and mentioned that "AIR COMPRESSOR MODEL NO. B4D QHT" is totally failure and further stages the skid system is also not successful and are suffering problems while using the said model air compressor.
7. It is further averred that on the receipt of letter dated 12.04.2006, joint meeting for the issue of satisfactory performance of said model, was organized by the defendants with the plaintiff & M/s. Capron Agencies on 21.04.2006 and during the joint-meeting, it was assured by the representatives of defendants to the plaintiff company to remove the apprehensions and incorporation of various modifications and voluntarily CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 4 of 20agreed to increase the warranty period from 12 months to 18 months without asking. The said Air compressor was installed by the defendants in the factory premises of plaintiff company from 26.12.2006 to 28.12.2006 with the assurances for satisfactory performance but the said Air compressor created problem. The plaintiff company called the authorized service engineers on 09.01.2007 and 11.01.2007 to 12.01.2007 and then on 23.01.2007 who submitted the report which shows that there was manufacturing defect in the said Air compressor.
8. It is further averred that Sh. B.P. Sahni, Executive & Vice President of defendants has admitted the repairs and replacement of parts at the initial stage in the newly installed air compressor and has further admitted the mistakes of engineers and assured for trouble free and satisfactory performance for years vide letter Ref. No. 25148 dated 25.01.2007. The plaintiff company had again and again repeatedly requested to replace the said model or to alternatively by new model "BIS" and was also ready to pay extra difference of price at the initial stage but the defendants have neither replaced it nor alternatively changed by new model despite offered difference, even not take back nor refund the amount with freight & cartage paid by the plaintiff company due to which plaintiff has suffered loss of production, productivity of labour during break down since 28.12.2006.
9. It is further averred that the problems while running of said compressor Model B4 D QHT since its installation in the factory premises of plaintiff was continued on each stage despite regular serviced by Field service representative (s) of defendants and CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 5 of 20handed over the field service reports as and and when visited to the factory premises of plaintiff. The defendants had sent a letter No. EVP (M):25:07 dated 01.03.2007 to get satisfaction report of working of said air-compressor Model B4 D QHT (S/M) from the plaintiff company despite knowledge that there was regular break down of said Air compressor. The plaintiff had refused to sign on the said report because supplied Air-compressor Model B4 DQHT, was/is not conformity with the purpose to placed the order and not meet out the requirement of the plaintiff after its installation in the factory premises of plaintiff.
10. It is further averred that the plaintiff company has suffered loss of production and not got production output properly and even not achieved production target for the reason of regular break down due to manufacturing defect. The plaintiff had again lodged the complaint in the office of defendant No.2 when major break-down was observed in said Air compressor Model 84 D QHT, on 26.05.2007 8.45 a.m. and referred that the 1st stage piston Rod broken and 1st stage piston was found in pieces, in the said letter. The defendants had also deputed representatives of M/s. GE India Industrial (P) Ltd for observations and to remove the problems in the said Air compressor and sent two Nos. Cylinder Supporting, by hand with the letter dated: 21.06.2007 whereupon the representatives of GE Industrial (P) Ltd have submitted site service report Sr.No. 7856 dated 21.06.2007 of the said Air compressor.
11. It is further averred that plaintiff lodged complaint on 27.06.2007 but there was is no response from the defendants nor CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 6 of 20replacement or change of model except sent some spare parts on 02.07.2007 vide Debit Note-cum-Invoice No.21600072, 21500077, 21000034 dated 05.07.2007, copy of delivery challans dated: 02.07.2007, 05.07.2007 letter dated: 10.08.2007 of defendants & acknowledgment of replacement of one IIIrd stage Piston Rod on 31.07.2007. The plaintiff company had again lodged a complaint and addressed to Mr. H.R. Mustikan, Managing Director dated 12.04.2006 mentioning that the said Air Compressor Model B4 DQHT was not successful and unsatisfactory performance in other places also where the defendants have installed said model and regularly receiving complaints.
12. It is further averred that the defendants have admitted that the said Air compressor was defective when it was installed in the factory of plaintiff despite that the defendants have ignored and not replaced it nor changed by other model despite the plaintiff was ready to pay difference at the initiate stage.
13. It is further averred that after the expiry of 3-4 days, there was again breakdown in the said Air-compressor Model B4 DQHT on 21.09.2007. On complaint, the Field service Engineers have again visited the factory of plaintiff and observed that there was manufacturing defects and repaired it. Later the plaintiff has decided not to use it and the same was lying idle in the factory of plaintiff and intimated to the defendant. The defendants despite knowledge of shut down and not using the said Air-compressor, have sent some parts for replacement on payment vide Delivery Note Cum Invoice No. 21500157, 21500158, 21600139 & CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 7 of 2021000064 dated 24.09.2007 at the factory of plaintiff.
14. It is further averred that there was continued break-down in the installed Air compressor Model B4 D QHT and further regular request to the defendants to replace it or replaced or exchanged by any other successful model similar if similar model is not available but failed. The defendants have admitted the manufacturing defects in the air-compressor but could not shorted out or removed the manufacturing defects. The defendants have acknowledged the letter dated 12.04.2006 & the letter dated 17.09.2007 of plaintiff vide their letter reference No.BOM/25248 dated 11.10.2007 and further ensured for satisfactory operation in shortest possible time. The service engineers of defendants who had visited the factory of plaintiff to repair & replacement of parts on 14.11.2007 found one defect in IIIrd stage old piston rod and then returned to the defendants with letter dated 16.11.2007. The plaintiff company had rejected the said Air compressor as it was initially manufacturing defective. The complaints of the plaintiff company have ignored by the defendants despite regular break-down in the installed Air compressor. The defendants have neither replaced it nor exchanged by other model and the plaintiff company was/is ready to pay difference of the time when supplied said Air- compressor even not refund the amount paid with additional spares as the defendants have failed to replace it nor changed by other model. Hence, the present suit.
15. Summons of suit were served on the defendant who filed the written statement wherein preliminary objections were taken CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 8 of 20that that the suit is not properly instituted and verified by the plaintiff or his authorized person and that the same is not maintainable.
16. In the written statement, the defendant has contended that since no representative of the defendant had visited the factory of the plaintiff, therefore, there was no question of assuring the plaintiff or their Engineers regarding the working of the said compressor or assuring them that the said compressor would meet their requirement. The plaintiff had placed an order with the dealer namely M/s Capron Agency at Mumbai for supply of Kriloskar Compressor Model B-4 DQHT. The said dealing then asked the defendant to supply the said compressor to the plaintiff and it was on that basis the order was booked. The compressor was directly dispatched from the Pune by defendant along with the invoice and other documents.
17. It is further contended that the defendant raised Performa Invoice No.27175 dated 10.10.2005 for Rs.14,81,917/- which include excise duty at the rate of 16%, Education Cess at the rate of 2% and Sales Tax at the rate of 4% against form "C" and the defendant received an amount of Rs.14,81,917/-by Banker Cheque No.399802 dated 26.12.2005 drawn on State Bank of Bikaner and Jaipur, Krishan Nagar Branch plaintiff. issued by plaintiff. The plaintiff had placed direct order on M/s. Capron Agencies, Mumbai for Air separation plant which included Kirlosker make compressor model B4 DQHT and as per the instructions of M/s. Capron Agencies, the compressor in question was supplied to the plaintiff directly by the defendant as direct CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 9 of 20sale which established that the plaintiff had placed direct order on M/s Capron Agencies and not on defendant.
18. It is further contended that the defendant specifically mentioned that a warranty given to the plaintiff was only regarding the proper working of parts and their replacement and it never envisaged that the compressor would be changed. As per the report A-11 dated 28.12.2006, the compressor was properly working from December 2006. The defendant was not informed about the purpose for which the compressor was to be used. Since the plaintiffs have made some complaint in January 2007 therefore, the Compressor was attended on 12.1.2007.
19. It is further contended that the compressor supplied to the plaintiff was serviced from time to time as desired by the plaintiff and the parts which needed replacement were replaced and after the replacement machine was working absolutely satisfactorily. Even imported parts were supplied free of cost. The plaintiff was always satisfied about the working of the compressor. Instead of appreciating the after sales service of the defendant, the plaintiff was trying to find fault with it. The Engineers of the defendant were visiting the factory of the plaintiff in order to see that the compressor was working properly and as soon as any defect was pointed out or was noticed, it was attended to and if necessary the necessary part was changed. No manufacturing defect was ever noticed. According to admitted facts, the Compressor had run 3500 Hours and the plaintiff had not faced any major problem. The defendant was not supposed to change the Compressor with any other Model Compressor. The defendant was not bound to CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 10 of 20supply the Compressor Model "BIS" .
20. It is further contended that in the Air Compressor Model B-4 DOHT, there was no manufacturing defect. The plaintiff has successfully run the compressor for a period of 3500 Hours. The Warranty given by the defendant only extended to replace the worn out part within the warranty period. As a special case the defendant had in this case extended the warranty period. The main purpose of the plaintiff was to change this compressor with the other compressor. This could not be done because this was not one of the terms of the Contract and also that there was no manufacturing defect in this Compressor.
21. Replication to the written statement was filed on behalf of plaintiff wherein the contentions raised in the written statement were controverted and the averments made in the plaint were reiterated.
22. On the pleadings of parties, the following issues were framed by my Ld. Predecessor vide order dated 29.07.2011:-
1. Whether the suit has been properly signed, verified and instituted by the plaintiff?OPP.
2. Whether Delhi Courts have jurisdiction to try the present suit?OPP.
2. Whether there is privity of contract between the parties? OPP.
3. Whether the defendant no. 2 is not a necessary and proper party in the suit? OPD.
4. Whether the Air Compressor Model "B-4 DQHT"
by defendant was defective? If so, what was its effect" OPP.
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.vs. M/s Kirloskar Pneumatic Co. Ltd. Page 11 of 20
5. Whether plaintiff is entitled to damages as prayed for, if so, how much? OPP.
6. Whether the plaintiff is entitled to a decreetal amount of Rs.16,02,890/- as prayed for?OPP
7. Relief.
23. Thereafter, the matter was fixed for plaintiff's evidence. To prove its case, the plaintiff has examined PW1 Sh. R.K. Saini, Junior Technical Assistant who proved Form 20-B with annual return of plaintiff company for the period 26.09.2008 and 28.09.2009 Ex.PW1/A and Ex.PW1/B. Plaintiff also examined PW-2 Jai Gopal Mehta, who tendered his affidavit Ex.PW2/A in evidence. He also relied upon the documents Ex.PW2/1 to Ex.PW2/28 (colly.). Defendant did not examine any witness despite opportunity and defendant's evidence stood closed vide order dated 01.03.2025. Thereafter, the matter was fixed for final arguments. Written arguments was filed by Ld. Counsel for defendant with request to treat the same as oral arguments as well. No one has appeared on behalf of plaintiff to argue the case. Accordingly, the opportunity to address oral final arguments on behalf of plaintiff stood closed vide order dated 23.04.2025.
24. I have carefully gone through the pleadings, testimony of witnesses, documents proved on record and the written submissions filed by the defendant. My Issue wise discussions is as follows:
ISSUE NO. 1WHETHER THE SUIT HAS BEEN PROPERLY SIGNED, VERIFIED AND INSTITUTED BY THE PLAINTIFF? OPP.
25. Onus to prove this issue was upon the plaintiff. Plaintiff has placed on record the extract of Minutes of Meeting of Board CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 12 of 20of Directors dated 01.08.2008 Ex.PW2/DX-1 whereby Sh. K.K. Verma, Manager was appointed to engage advocate, to file, sign and contest the suit(s) either for recovery or any compensation/damages or specific performance to perform obligations against M/s Kirloskar Pneumatic Co. Ltd. In my view, the suit has been properly signed, verified and instituted by duly authorized person. Issue no. 1 is accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO. 2WHETHER DELHI COURTS HAVE JURISDICTION TO TRY THE PRESENT SUIT? OPP.
26. Onus to prove this issue lies upon the plaintiff. It is stated by the plaintiff that its registered office & factory was at B-49, Okhla Industrial Area, Phase-I, Delhi and the defendant was the manufacturer and supplier of said Air Compressor Model No. B4 DQHT and supplied the said Model Air Compressor from its work at 1, Hadapasar Industrial Estate, Pune 411013. It is further stated that the defendant is also controlling the entire business and undertook the repairs & maintenance jobs nearby the areas having office at 607, Manjusha Building, 57, Nehru Place, New Delhi who took the order and received the payment by banker cheque and cheque favouring defendants against the proforma invoices and under their supervision, the said Air compressor was installed and attended the complaints. It is further stated that both the parties are working for gains within the jurisdiction of this Court and as such cause of action accrues within the territorial jurisdiction of this court.
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 13 of 2027. On the other hand it is stated by the defendant that the plaintiff had placed an order with the dealer of the defendant at Mumbai and it was at the asking of M/s Capron Agency, the dealer of the defendant that the compressor was sent to plaintiff at Delhi.
28. Before proceedings further on the point of jurisdiction, it would be relevant to state in here section 20 of Civil Procedure Code:-
20. Other suits to be instituted where defendants reside or cause of action arises.--
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation.-- A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 14 of 2029. It is admitted by the defendant its office is at Pune and and branch office 607, Manjusha Building, 57, Nehru Place, New Delhi. It is also admitted that the defendant raised perform invoice no. 27175 dated 10.10.2005 for Rs. 14,81,917/- which was received by the defendant by banker cheque no. 399802 dated 26.12.2005 drawn on State Bank of Bikaner and Jaipur, Krishan Nagar Branch, New Delhi, from the plaintiff. In such circumstances, as part of cause of action arises at Delhi, this court has jurisdiction to try present suit. In view of the same present issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3WHETHER THERE IS PRIVITY OF CONTRACT BETWEEN THE PARTIES? OPP
30. The onus to prove this issue was upon the plaintiff. However, the plaintiff has lead no evidence on record to show that there is any privity of contract. Accordingly, this issue is decided against the plaintiff.
ISSUE NO. 4WHETHER THE DEFENDANT NO. 2 IS NOT A NECESSARY AND PROPER PARTY IN THE SUIT? OPD
31. The onus to prove this issue was upon the defendant. Perusal of the record that vide Order dated 23.08.2016, request of plaintiff for treating defendants no. 1 and 2 as only one defendant stood allowed. Since there is no defendant no. 2 at present, the issue is disposed of accordingly.
ISSUE NO. 5WHETHER THE AIR COMPRESSOR MODEL "B-4 DQHT"
BY DEFENDANT WAS DEFECTIVE ? IF SO, WHAT WAS ITS EFFECT? OPP CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.vs. M/s Kirloskar Pneumatic Co. Ltd. Page 15 of 20 ISSUE NO. 6
WHETHER PLAINTIFF IS ENTITLED TO DAMAGES AS PRAYED FOR, IF SO, HOW MUCH? OPP.ISSUE NO. 7
WHETHER THE PLAINTIFF IS ENTITLED TO A DECREETAL AMOUNT OF RS.16,02,890/- AS PRAYED FOR?OPP
32. The onus to prove these issues were upon the plaintiff. In support of its case, plaintiff has examined PW-1 Sh. R.K. Saini, Junior Technical Assistant, Office of Registrar of Companies, Nehru Place, New Delhi who proved form 20-B with annual return of M/s Mayur Air Products Pvt. Ltd for the period 26.09.2008 and 28.09.2009 Ex.PW1/A and Ex.PW1/B certified by Assistant Registrar of Companies on 06.09.2011. This witness was cross examined and discharged. Plaintiff has also examined PW-2 Jai Gopal Mehta who tendered his affidavit Ex.PW2/A and proved the documents Ex.PW2/A to Ex.PW2/28.
33. Ld. Counsel for the Defendant has submitted that PW-2 has himself did not appear to get his cross-examination concluded and therefore, his testimony can-not be read against the Defendant, however should be read against the interests of the Plaintiff. It is submitted that since no opportunity had been provided to further cross examine and conclude the evidence of PW2 as he remained absent, his evidence cannot be read at all in the present case. It is further submitted that the since the plaintiff has failed to discharge the onus to prove all the issues as such the defendant is not required to lead evidence.
34. In terms of aforementioned contention of the defendant, the question is required to be decided, in order to ascertain the CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 16 of 20entitlement of the Plaintiff as prayed is : - Whether the testimony of PW2 in the present case is to be ignored completely?
35. The said question is being discussed in detail and answered in the paras mentioned hereinafter.
36. Perusal of the record shows that the PW-2 was cross- examined in part by Ld. Counsel for the Defendant on 21.12.2015, 06.09.2017, 22.11.2017, 13.08.2019 and his remaining cross- examination was deferred and the matter was adjourned for 25.11.2019. On 25.11.2019, no one had appeared on behalf of plaintiff and an opportunity was granted to plaintiff, subject to cost of Rs.1,000/-. Thereafter, no one had appeared on behalf of plaintiff on 05.12.2020, 09.04.2021, 14.09.2021, 27.01.2022, 28.10.2022, 27.02.2023. Plaintiff had appeared on 18.04.2023 pursuant to court notice issued to him and last and final opportunity was granted to plaintiff for concluding evidence. Thereafter, the adjournment was sought on 12.01.2024 and 15.10.2024 on the ground that the plaintiff has suffered heart attack. On 17.12.2024, again adjournment was sought on behalf of the plaintiff on the ground that the witness and counsel are not available. Subsequently, this Court closed the right of the plaintiff to lead evidence vide order dated 17.12.2024.
37. The Hon'ble Supreme Court in "Vidhyadhar vs. Manikrao:AIR 1999 SC 1441", has held that when a party does not offer himself for cross-examination, it would lead to a presumption that the case set up by it is not correct. The relevant observations of the Hon'ble Court are being reproduced hereinbelow:
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.vs. M/s Kirloskar Pneumatic Co. Ltd. Page 17 of 20
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr.. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
38. It has been held by Hon'ble High Court of Delhi in, "Krishan Dayal Vs. Chandu Ram MANU/DE/0078/1969: ILR 1969 Delhi 1090", that where the cross-examination has not completed on account of death of a witness, such evidence can still be read by Court by applying a rule of caution while appreciating its evidentiary value. However, the present case is not one of death or incapacity of the witness. No incapacity of the witness to appear for cross-examination has been made out and thus, the witness has intentionally not presented himself for the further cross-examination.
39. The Hon'ble Madras High Court has held in "G. Balaji Vs. Saravanasamy (20.07.2020): CMP No. 2182 of 2019", that the CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 18 of 20witness remaining absent in cross-examination results in denial of opportunity to the opponent to disprove the claim and such incomplete examination is not required to be retained on record. The relevant observation of the Hon'ble Court are being reproduced hereinbelow:
"12.The above conduct of the Plaintiff, after having filed the proof affidavit and marked the documents, remaining absent for cross examination will amount to denial of opportunity to the opponent to disprove the claim and render the evidence as complete one. As held by this Court in Rajendran's case as well as Metilda's (supra) incomplete evidence of a witness who has failed to subject himself for cross examination shall not be retained on record. Even though there is no provision to eschew the evidence, the evidence of the Plaintiff in the above case, not tested by cross examination on account of his non appearance, does not even have the probative value, for, the incompleteness is attributable to the Plaintiff himself. The further contention of the respondent that the evidence can be used at the later stage of the proceeding as per Section 33 of Evidence Act is also not sustainable for the reason the evidence herein is not the complete evidence in the eyes of law. As contended by the learned Senior Counsel for the petitioner, if a witness is allowed to avoid the witness box for cross examination after letting in evidence in chief examination his evidence cannot be retained on record and does not merit consideration. If such an evidence of a defaulting, delaying, clever or crooked and cunning witnesses is taken for consideration, it will run against the spirit of adversarial system of law.......
Had the Plaintiff was keen to complete his evidence, he would have offered himself for further cross examination by re-opening and recalling his evidence. The conduct of his clearly shows that he was and is not very keen in doing so. In such an event the incomplete evidence of the Plaintiff shall not remain on record and it shall be eschewed..."
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 19 of 2040. Therefore, in terms of reasons stated hereinabove, it cannot be said that the Air Compressor Model B-4 DQHT by defendant was defective. Plaintiff is not entitled to any decreetal amount along with damages as prayed for. The Issue No.5, 6 and 7 are decided against the Plaintiff.
RELIEF/FINAL DECISION:
41. In view of the discussion and reasons stated hereinabove, the suit of the Plaintiff is dismissed. The decree-sheet be drawn up accordingly.
42. File be consigned to record room.
Digitally
Announced in the open signed by
Sunil
Sunil beniwal
Court on 03.09.2025. beniwal Date:
2025.09.04
15:34:12
+0530
(Sunil Beniwal)
District Judge-06(South),
Saket Courts, New Delhi
CS - 6167/2016 M/s Mayur Air Product Pvt. Ltd.
vs. M/s Kirloskar Pneumatic Co. Ltd. Page 20 of 20