Delhi District Court
Sh. Rajinder Singh vs Hindustan Refrigeration Store on 5 May, 2022
Rajinder Singh v. Hindustan Refrigeration Store & Anr.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 2241/17
In the matter of :
Sh. Rajinder Singh,
S/o Sh. Balbir Singh,
Prop. of M/s. Rohit Ice Cream,
R/o Durga Colony, Jhajjar Road,
Rewari, (Haryana). ...PLAINTIFF
VERSUS
1. Hindustan Refrigeration Store,
2, 4 & 5, N.S. Marg, Darya Ganj,
New Delhi110002.
2. Elan Professional Appliances Pvt. Ltd.,
645/2, Ram Farm, Zero Road,
Ghitorni, New Delhi110030 ...DEFENDANT
Date of institution : 05.07.2017
Date of judgment : 05.05.2022
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide a suit for mandatory injunction.
BRIEF FACTS OF THE PLAINT:
2. The brief facts of the plaint as alleged by the plaintiff which are necessary CS No.2241/17 Pg 1 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. for the disposal of the suit are that the plaintiff is running Ice cream Factory at the above mentioned address. That the plaintiff purchased three refrigerators from the defendant No.1 on 16.3.2017 and out of three refrigerators, two refrigerator are manufactured by the defendant No.2. That thereafter the said three refrigerators delivered to the plaintiff on 16.3.2017 but the plaintiff found that two refrigerators were in O.K. condition but third one which is mentioned at S.No.3 in the invoice dated 16.3.2017 i.e. Elanpro Blast Freezer (BFD315) SR No. BFD017200011603070001 was not in good condition as some of its part was broken and its manual was also not there. It is further submitted that the plaintiff put the order for Elanpro Blast Freezer (BFD315) SR No. BFD017200011603070001 which is also revealed from the receipt but the defendant No.1 illegally delivered the refrigerator of different model i.e. Chestshowcase BFD315 which is also illegal part on the part of the defendant No.1. That two refrigerator are working property but third one is not working property as it is not cooling as per the assurances given by the defendant i.e. 40o C. Besides this, the cooling is not as per the assurances given by the defendant No.1 and it also takes long time to cool the goods/ice cream. That the said Refrigerator was under the CS No.2241/17 Pg 2 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. warranty of one year from the date of its purchase. Thereafter the plaintiff made complaint to the defendant No.1 and then the defendant No.1 also made complaint to the defendant No.2 and some engineer from defendant No.2 came and checked the said refrigerator and told that there is some manufacturing defect which can not be cured. That thereafter the plaintiff number of time visited the defendant No.1 to replace the said defective refrigerator with the fresh one which was ordered by the plaintiff and defendant No.1 is only assuring to talk with defendant No.2 to replace the said defective piece but he kept on lingering on to replace the same. That the plaintiff is running Ice cream factory and the said defective Refrigerator is not of use of the plaintiff as it is not cooling properly. That finding no other way the plaintiff has sent a legal notice dated 15.4.2017 dispatched on 17.4.2017 through speed post through his counsel which has been duly served upon the defendants but the defendants did not bother to comply the same rather the defendant No. 2 sent false, frivolous or vague reply dated 24.4.2017. ● That a decree of mandatory injunction may kindly be passed in favour of the plaintiff and against the defendants thereby directing the defendants to replace the defective refrigerator i.e. Chestshowcase BFD315 from new one of Elanpro Blast Freezer (BFD315).
CS No.2241/17 Pg 3 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. WRITTEN STATEMENT OF DEFENDANT NO.2:
3. The defendant filed written statement to the plaint and controverted the claim of the plaint. It is submitted in the preliminary objections that the suit is barred under the sale of Goods Acts. That the plaintiff has not valued the suit correctly as per the invoice filed by him and not affixed appropriate court fees on the suit as per the invoice.
4. In reply on merits, it is submitted that the contents of paras 1 & 2 of the suit, needs no reply from the defendant No.2. That the contents of paragraph No.3 of the suit have been denied and incorrect to the extent that (a) the third Freezer mentioned at serial No.3 of the Invoice dated 16.03.2017 i.e. Elanpro Freezer (BFD 315) SR No. BFD017200011603070001 was not in good condition (b) as some of it part was broken (c) its manual was also not there. It is submitted that there was no protest or claim made by the plaintiff regarding the foregoing at the time of delivery or thereafter within a reasonable time. It is further submitted that the conduct of the plaintiff is contrary to the sale of Goods Act. It is denied as wrong, false and incorrect that the plaintiff put the order for Elanpro Freezer (BFD 315) SR. No. BFD017200011603070001. That the contents of paragraph No.4 of the CS No.2241/17 Pg 4 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr.
suit have been denied and it is submitted that machine was demonstrated to plaintiff before delivery by defendant No.1 at their outlet. It is also submitted that the delivery was taken by the plaintiff after getting being fully satisfied with the machine leaving no scope for defendant No.1 to handover damage of incomplete machine. It is further submitted that the plaintiff raised issue of broken part only 17.04.2017 i.e. after 32 days and in contravention with the sale of Goods Act. It is further submitted that the plaintiff was shown the same model and delivered the same model vide invoice No.16637 dated 16.03.2017 and that same model is also called chest show case BFD 315 as the machine is of chest type. It is submitted that neither of the defendant came that the machine will deliver temperature of minus 40 Degrees. It is submitted that the data collected from data logger confirms that the machine was delivering Minus 38.9 Degrees in spite of repeated power cuts. It is submitted that the plaintiff registered a complaint with the defendant on 17.03.2017 which was attended to by the defendant No.2 on 19.03.2017. It is submitted that the unit was found to be working in line with product specification and design. It is submitted that the plaintiff refused to sign the report. It is submitted that the plaintiff requested for CS No.2241/17 Pg 5 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. testing the refrigerator again and the defendant No.2 deputed their engineer again on 28.03.2017 with date logger to capture the complete temperature details which were shared with the plaintiff there and then and the machine was working as per product design despite having frequent power cuts after every one hours for as long as 15 to 20 minutes. It is submitted that any freezer needs continuous and study power supply to function properly and delivery proper temperature. It is submitted that the plaintiff admitted to the defendant's team visiting him that after purchasing this machine, he had second thought aout the same and wanted to return the machine. It is submitted that the plaintiff is doing the above acts to forcefully arm twist the defendant to submit to the plaintiff's demand of taking back the freezer. It is submitted that the plaintiff admitted to the defendant No.2 team member/service engineer that the machine is superior in performance and has no performances related issues. That the contents of paragraph No.5 of the suit need no reply as the same pertains to warranty of one year from the date of its purchase and the defendant is giving appropriate and prompt service to the plaintiff. That the contents of paragraphs No.6, 7, 8 9 & 10 of the suit have been denied. However, it is submitted that answering defendant CS No.2241/17 Pg 6 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. craves leave of this Hon'ble Court to refer and rely upon the reply of the defendant No.2 in the foregoing paragraphs and is not repeating the same herein for the sake of brevity and the same may be read as part and parcel of reply to this paragraph. That the contents of paragraph No.11, needs no reply from the answering defendants. Finally, the contents of paragraph No.12 of the suit have been denied and it is submitted that the plaintiff has not affixed appropriate court fees on the suit as per the invoice and that the suit have been valued at Rs.94,222.22/ + 12.5% i.e. Rs.10,600/ totaling to Rs.3700/.
5. Defendant No.1 did not turn up to contest the suit nor filed the written statement. Accordingly, it was proceeded against exparte by Ld. Predecessor vide order dated 18.01.2018.
REPLICATION:
6. Plaintiff filed replication to the written statement of defendant No.2 and denied the contents of the same while reiterating and reaffirming the contents of the plaint.
ISSUES:
7. From the pleadings of the parties, following issues were framed for trial vide order dated 02.11.2018, by Ld. Predecessor:
CS No.2241/17 Pg 7 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr.
1. Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant as prayed for in the prayer clause of the plaint? OPP.
2. Relief.
PLAINTIFF'S EVIDENCE:
8. In order to prove his case, plaintiff examined himself as PW1 whose examination in chief is by way of affidavit Ex.PW1/A. PW1 relied upon following documents:
1. Aadhar Card of the deponent is Ex.PW1/1 (OSR).
2. Copy of retail invoiceappliances no.16637 dated 16.03.2017 is Ex.PW1/2 (OSR).
3. Copy of legal notice dated 15.04.2017 is Ex.PW1/3 (objected to regarding its admissibility as the original of the same is not record as it is photocopy and not signed by the advocate sending the notice also).
4. Postal receipt of Speed Post is Ex.PW1/4.
5. Copy of reply dated 24.04.2017 is Ex.PW1/5 (OSR).
• PW2 Sh. Ravi Kumar whose examinationinchief was by way of affidavit Ex.PW2/A. PW2 relied upon document i.e. photocopy of Aadhar Card CS No.2241/17 Pg 8 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. Ex.PW2/1(OSR).
DEFENDANT'S EVIDENCE:
9. On the other hand, to prove their version, defendant No.2 examined Sh.
Manoj Arora, whose examinationinchief was by way of affidavit Ex.D2W1/A. DW1 relied upon following documents:
1. Ex.D2W1/B (subject to production of original minutes book) copy of extract of the resolution dated 02.09.2017.
2. Ex.D2W1/C office copy of reply dated 24.04.2017 to legal notice.
3. Ex.PW1/D1 (already exhibited), Ex.PW1/D2 (already exhibited), Ex.PW1/D3 (already exhibited) and Ex.PW1/D4 (already exhibited). D2W2 Sh. Abhay Kumar, Technician of defendant No.2 whose examination in chief was by way of affidavit Ex.D2W2/A. D2W2 relied upon following documents:
1. Ex.PW1/D3 (already exhibited)
2. Ex.PW1/D4 (already exhibited) FINDINGS:
10. I have heard the arguments and perused the record. Defendant has relied upon judgment of Hon'ble High Court of Chhattisgarh in State of Chhatisgarh through the Collector & Anr. v. M/s. Hindustan Supply Agency, in FA No.120 CS No.2241/17 Pg 9 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr.
of 2007, emphasizing that plaintiff has to stand on its own legs and prove its case.
11. Issuewise findings as follows:
ISSUE NO.1 Whether the plaintiff is entitled to decree of mandatory injunction against the defendant as prayed for in the prayer clause of the plaint? OPP.
12. At the threshold, it may be noted that mandatory injunction is regulated and governed by Section 39 of Specific Relief Act, 1963. The said provision gives discretion to the court to compel performance of certain act by defendant, in case such performance is necessary to prevent the breach of obligation that exists in favour of the plaintiff provided the court is capable of enforcing it. To understand the provision completely, one has to relegate to Section 38 which deals with permanent prohibitory injunction. A permanent prohibitory injunction can be granted in case of breach or apprehension of breach of an obligation or right existing in favour of the plaintiff. The provision further states that in case of a contractual obligation, injunction can be granted as per the provisions of the Act that deal with specific performance of a contract. Having said that, it is to be considered that in the present factual circumstances, parties are at issue regarding sale of a refrigerator/Freezer thereby attracting a specific branch of contract i.e., sale CS No.2241/17 Pg 10 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. of goods that is governed by Sale of Goods Act, 1930. From perusal of plaint, it transpires that the plaintiff was sold the Freezer by way of description which is alleged to have been breached as different freezer was delivered. Secondly, there is an allegation of the Freezer being defective. Prima facie, the said breach is a breach of condition of sale. As per the Sale of Goods Act, 1930, in case of breach of condition, the party can repudiate the contract meaning thereby that parties will be put in a position in which they stood earlier. Further, that party can also instead treat such breach as breach of warranty and claim damages. However, here the plaintiff has sought a third relief which finds no specific mention in the Act i.e., mandatory injunction of replacement of the Freezer with the one that the plaintiff placed order for. Nonetheless, keeping this background and intricacies of Specific Relief Act and Sale of Goods Act, I shall proceed to adjudicate the issue.
13. Coming to the merits, it is the claim of the plaintiff that he had purchased three refrigerators from defendant no.1 out of which two were manufactured by defendant No.2. Present suit relates to one of the refrigerators manufactured by defendant No.2. The contentions in the plaint forming the fulcrum of the suit can be delineated into three heads: firstly, the Elanpro Blast Freezer (BFD315) SR No.BFD017200011603070001 mentioned at CS No.2241/17 Pg 11 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. serial No.3 in the invoice, was not in good condition as some of its parts were broken and its manual was not there; secondly, That the plaintiff had placed order for the Elanpro Blast Freezer (BFD315) SR No.BFD017200011603070001 as per receipt however, defendant No.1 illegally delivered different model i.e., Chestshowcase BFD315; and thirdly, the refrigerator is not cooling properly as per the assurance given by the defendant i.e. 40o C.
14. As regards first and third point, at the outset it may be stated that it is not disputed by either of the parties that the technician of defendant No.2 visited the plaintiff's place on complaint regarding refrigerator. Accordingly, it is significant to note that the PW2 was confronted with reports made by technician on visit to plaintiff's place to check the refrigerator. The witness had identified signatures of his father (plaintiff) and also deposed that he signed in his presence and that the plaintiff signed the report after understanding the report only. Notably, there is no mention of any broken parts in the said report of technician. In fact, in the report (Ex.PW2/D2) dated 19.03.2017, it is written 'Machine is working'. Another technician report dated 28.03.2017 (Ex.PW2/D3) states 'Checked M/C working, temp 36o C achieved'. This report as well as signatures of PW2 at point A were also admitted by PW2. Rather, it has been categorically deposed by PW2 CS No.2241/17 Pg 12 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. that he signed it after reading the same. Further, the witness had also admitted data logger (Ex.PW2/D4) and deposed that the data logger showed lowest temperature at 37.7o C and was found to be satisfactory. Cumulating all noticed above, it can be safely said that the plaintiff could not prove any defect in the refrigerator. Insofar as cooling at 40 o C is concerned, plaintiff has nowhere brought any document or evidence to show that any such assurance was given by defendant No.1 at the time sale of refrigerator. Therefore, in light of the analysis of the evidence above, it can be reiterated that the two contentions regarding broken parts and less cooling have not been proved by the plaintiff.
15. As far as the claim of the plaintiff that defendant No.1 did not deliver the refrigerator of which the order is placed is concerned, it strikes to my mind that plaintiff has alleged all the dealings with defendant No.1 and the allegation of wrong delivery has also been made against defendant No.1 only, therefore, per se there seems no privity of contract between the plaintiff and defendant No.2. Nonetheless, I shall proceed to determine on the basis of evidence whether any of the defendants is liable or not.
16. It is inevitable to note that on one hand the plaintiff has relied upon an Invoice dated 16.03.2017 (Ex.PW1/2) as per which third refrigerator (in question) is 'Elanpro Blast Freezer (BFD 315) SR No. CS No.2241/17 Pg 13 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. BFD017200011603070001' whereas during crossexamination of D2W1, plaintiff confronted the witness with two receipts dated 06.03.2017 allegedly showing the booking of order with defendant No.1 which reflects product name as 'Elanpro Blast Freezer 300'. Taking a pause here, I must note that by merely putting the latter document to defendant's witness who was not even a party to or author of the document, the plaintiff could not prove the document, however since the same has come in evidence, it can be seen by the court. On plain perusal, it is evident that the description of the fridge in the invoice and the booking receipt is not identical. Therefore, the case of the plaintiff has stumbled here only on account of lack of clarity of the model ordered.
17. Secondly, it bears repetition to say that the plaintiff has mentioned in the plaint that he had ordered model name and number 'the Elanpro Blast Freezer (BFD315) SR No.BFD017200011603070001'. The same description is found in the invoice. Very interestingly, the photograph (Ex.D2W1/P2) of the refrigerator relied upon by the plaintiff reflect same model number i.e. BFD315BFD017200011603070001. Though the photograph shows that the refrigerator was a chest showcase, nevertheless, looking at the model it appears that the refrigerator was of the same model as ordered. It is needless to say that it was for the plaintiff to CS No.2241/17 Pg 14 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. prove that how Chest show case refrigerator does not match the refrigerator of which plaintiff placed the order, despite exactly same model number. However, plaintiff did not bring anything on record to show relative difference between the both. Therefore, in the opinion of the court, the description 'Chest showcase' does not depict or anyway relate to the model and might rather concerns physical features.
18. In addendum, it is very pertinent to also consider that in the legal notice dated 15.04.2017 (Ex.PW1/3) sent by the plaintiff to defendants, there is no whisper about the fact that wrong model was delivered to the plaintiff. More so, the technician reports adverted to above do not find mention of any such fact and they were admittedly signed by the plaintiff and his son after understanding and reading the same.
19. In the above backdrop, I must advert to Section 42 of Sale of Goods Act, 1930. As per the said provision, the buyer is deemed to have accepted the goods in certain circumstances including when after lapse of a reasonable time, he retains goods without intimating the seller that he has rejected them. In the present case, not even once before filing of the suit, the plaintiff had raised any dispute regarding the variance of description and the actual product delivered. Therefore, in as much as this aspect is concerned, plaintiff is deemed to have accepted the freezer.
CS No.2241/17 Pg 15 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr.
20. In such a scenario, even if plaintiff would have proved the factum of wrong delivery, he would at best be entitled to damages on account of deemed breach of warranty as per Section 13 r/w 59 of Sale of Goods Act, 1930 and not for repudiation or rejection on account of breach of condition.
21. Coming back, it is needless to say that a plaintiff has to stand on his legs and prove the case on the scale of preponderance of probabilities. Moreover, even in case of implied admissions on account of lack of rebuttal, court has power to call evidence under Proviso to Order 8 Rule 5(1) of CPC and Section 58 of Indian Evidence Act. Therefore, even when the defendant No.1 is exparte, the court is not bound to believe the plaintiff regarding allegation against defendant No.1 in absence of rebuttal. In case of defendant No.2 also, plaintiff cannot take advantage of weakness in case of defendant No.2, if any.
22. In view of the above discussion, it can be said that neither the plaintiff has been able to prove defect in the goods in question nor the factum of delivery of wrong goods. Accordingly, plaintiff has failed to discharge the burden of this issue of mandatory injunction against both the defendants.
23. Before concluding, it may be mentioned that injunction is a discretionary remedy as also clear from the language of Section 39 of Specific Relief Act under which plaintiff has sought the relief. In the circumstances discussed CS No.2241/17 Pg 16 of 17 Rajinder Singh v. Hindustan Refrigeration Store & Anr. above, it is not deemed fit to grant mandatory injunction to the plaintiff.
24. Hence, this issue is decided against the plaintiff and in favour of defendants.
RELIEF
25. In view of the discussion hereinabove, suit of the plaintiff is dismissed. No order as to costs.
26. Decree sheet be prepared accordingly.
27. File be consigned to Record Room.
Digitally signed
HELLY by HELLY FUR
KAUR
(this judgment contains 17 pages
FUR Date:
2022.05.06
and each page has been signed by me.)
KAUR 12:35:52
+0530
Announced in the open court (HELLY FUR KAUR)
on 05.05.2022 Civil Judge - 08 (Central)/Delhi
CS No.2241/17 Pg 17 of 17