Document Fragment View

Matching Fragments

Apart from aforesaid amounts, plaintiff has also claimed Rs 18,167.95/- against defendant on account of interest due up to date at the rate of 18% p.a. and total amount being Rs 2,38,385/- which defendant has failed to pay despite repeated demands and service of notice dated 27.12.2012 and hence, the present suit.

Defendant's version:

3. In the WS, preliminary objections, inter-alia, have been taken qua the suggestion falsi and suppressio veri, lack of territorial jurisdiction and contradictory averments contained in plaint. In reply on merits, defendant has denied the allegations of plaintiff against it and it is stated that plaintiff initially had contacted the defendant for purchase of moth over phone and plaintiff had come to Nokha in the month of September 2011 and met defendant personally through some agent and had understood each and every term and condition regarding transaction in question. It is stated that defendant had purchased moth at the best available market price at Nokha; plaintiff had only made an advance payment to defendant at Nokha; it was clarified by defendant that as per market practice, all necessary, miscellaneous and incidental expenses incurred during purchase, storage, transport and sale are borne by the owner of goods. It is denied that the account qua the transactions done by defendant was to be rendered at Delhi, and it is submitted that defendant carries his business from Nokha and has no regular dealings in Delhi and the averments made by plaintiff are to bring the present case in the territorial jurisdiction of this court. It is reiterated that the terms between the parties were agreed personally and not over phone and further stated by defendant that as per regular market practice for selling any product by auction in market, the same is taken out of the gunny bags in open and is weighed again to confirm the exact weight to buyer and also to let the buyer check the quality of grain/pulses and to confirm that they are not infected or damaged by insects, pests or rodents, etc. It is denied that account statement was to be sent to Delhi, rather it was agreed that plaintiff would come to Nokha on October-November 2012 but he didn't come and defendant transferred the requisite amount to the bank account of plaintiff who was initially satisfied. It is further stated that defendant had already Civil Judge­07, Central, Delhi M/s. Sri Niwas Dall and Besan Mill v. M/s. Radha Kishan Gopi Kishan Jhanwar informed plaintiff that as moth purchased by him belongs to current harvest year crop, there may occur a weight reduction due to moisture loss in it, but plaintiff opted to go with decision to store the goods for almost a year to make good profit and was ready to bear the loss in weight of moth and thus, plaintiff was aware from beginning that during the course of one year, there may occur a weight loss in the moth on account of moisture loss. It is further denied that moth is a fully dry product or that there is not moisture in it. It is submitted that loss of moisture is a natural process and the contentions of plaintiff with regard to moth are only presumptions and guess work and as a matter of fact, the amount of moisture in moth is around 15-17% more than the usual moisture content of other pulses. It is submitted that the said moth was purchased and belonged to the current year harvest crop of 2011 and that loss in weight of moth is a natural and regular phenomenon and the same happens to every stock of moth in lesser amount or more. It is further submitted that four invoices dated 16.10.2012 and 11.10.2012 raised by defendant at the time of sale of moth would confirm the number of gunny bags opened and the weight found in the bags. It is denied that defendant has wrongfully charged Rs 5,400/- from plaintiff on account of Dalali and defendant has stated that plaintiff was well aware of the fact that sale and purchase of goods in grain market cannot happen without brokers and they have been paid at the rate of Rs 6/- per gunny bag and the same is a regular and well accepted and adapted market practice, Rs. 15/- per gunny bag paid for transport expenses (halali mangai i.e. transport from godown/warehouse to mandi and then goods are taken out from gunny bags and dispersed over mandi platform for auction, amounting to Rs 13,500/-) and Rs 9,350/- paid as halali (weighing and repacking of moth @ Rs 11/- per gunny bag) and the same is a regular and well accepted and adapted market practice. It is thus denied that defendant has wrongfully claimed the amounts of Rs 13,500/- and Rs 9,350/- from plaintiff and it is clarified that broker was involved in the sale and not purchase of said goods for plaintiff and accordingly, amount of Rs 5,400/- have been claimed from plaintiff. It is reiterated by defendant that the said loss of weight has occurred on account of loss of moisture from the said moth during the course of one year when the goods were purchased, stored and then sold. It is submitted that the claims of plaintiff are malafide and are in contradiction to the agreed terms between the parties and contrary to the regular market practice followed in the grain market. It is submitted that defendant has paid all the amounts to plaintiff as per the accounts and as per the terms and conditions agreed between the parties. Further, defendant has also stated that the Civil Judge­07, Central, Delhi M/s. Sri Niwas Dall and Besan Mill v. M/s. Radha Kishan Gopi Kishan Jhanwar legal notice sent by plaintiff was duly replied by defendant vide its reply dated 14.01.2013 and all the allegations leveled in the said notice have been denied. Lastly, defendant has denied the amount or any other relief claimed by plaintiff against it and accordingly, it is prayed that the present suit be dismissed with exemplary costs.

Replication by plaintiff:

4. In its replication, plaintiff has denied the submissions contained in WS and reiterated & reaffirmed the averments of plaint. In para 4 of the replication, it is averred that the whole transaction had taken place on phone with defendant and neither Sh. Subhash Chand nor other partner of plaintiff firm had gone to Nokha for purchase of Moth through some agent as alleged, and it is submitted that before filing of the present suit, plaintiff had sent a notice dated 27.12.2012 to defendent which was duly served upon defendant and reply dated 14.01.2013 was also admittedly sent by defendant wherein it was clearly admitted by defendant that orders for purchase of moth was given by plaintiff to defendant on telephone and after purchase of moth to the extent of 900 bags of 100 kgs each were to be kept in godown at Nokha and that after purchase of said bags, plaintiff was duly informed by defendant. It is averred in para 11 that moth purchased by defendant in September and October 2011 was of the crop of 2010 not of 2011in as much as the new crop of moth does not come in month of September or up to second week of October. In para 12, it is averred that moisture in moth and other pulses in the State of Rajasthan does not exceed 8 to 9% and even if moth is stored for a long period of one year or more, still the moisture will not come down and as such there is no question as alleged by defendant. In para 15 it is submitted that defendant is alleged to have sold 230 bags of moth to M/s Gopi Kishan Jhanwar & Company vide bill dated 16.10.2012 which is a concern of defendant itself and defendant has made a false story of reduction in weight of moth. Similarly, defendant had wrongly shown the reduction in weight alleged to be sold by it to M/s Arihant Industries and M/s Rishub Industries in order to cause loss to plaintiff. In para 25, it is alleged that the invoices dated 16.10.2012 and 11.10.2012 are false and wrong and illegally got prepared by defendant. All other averments of defendant in WS have been denied by plaintiff.

As stated earlier, no witness has been examined on behalf of defendants nor arguments advanced. In its WS, defendant has mainly contended that the moth purchased for plaintiff by defendant belonged to current harvest year crop and there may occur a weight reduction due to moisture loss in it and it was plaintiff who desired to store it for one year, despite apprising that this way reduction could be substantial also, and plaintiff was ready to bear the weight loss in moth. Defendant has denied in WS that moth is a fully dry product or that there is no moisture in it and further averred that as a matter of fact the amount of moisture in moth is around 15-17% more than the usual moisture content of other pulses and that loss in weight of moth is natural and regular phenomenon and the same happens to every stock of moth in lesser amount or more.

It, thus, appears that whereas defendant has raised many contentions in its written statement qua moisture loss in purchased moth and resultant reduction in weight thereof, however, none of the contentions have not been proved by defendant- whether by documentary or oral evidence. During cross-examination of PW-1, defendant has got marked certain documents as Ex.PW1/D2, however, the said documents pertain to moong and not moth and in his cross-examination, PW-1 has clearly stated that this transaction is different and distinct from transaction in the suit. Further, one of the main contentions of defendant qua reduction in weight during sale of moth that moisture contained therein is Civil Judge­07, Central, Delhi M/s. Sri Niwas Dall and Besan Mill v. M/s. Radha Kishan Gopi Kishan Jhanwar around 15% to 17% more than the usual moisture content of other pulses has also not been proved by defendant in any way. It is well settled that mere averments in pleadings of parties cannot be relied upon unless proved by them in evidence, and in the present suit, neither defendant who purchased and sold moth on behalf of plaintiff has examined himself, nor has the broker- Nand Kishore Lahoti through whom sale transactions were made has been examined on behalf of defendant, nor has any document been produced & proved as per law to establish the defence as contended by defendant in its WS. Furthermore, in its reply to plaintiff dated 14.01.2013 which is Ex. PW1/5, defendant has nowhere raised the contention qua the percentage of moisture content in moth. Furthermore, the invoices of sale and statement of account filed by defendant in the list of documents are not the original copies and thus they cannot be read in evidence for defendant unless proved as per law. On the point of cross-examination, the Hon'ble Supreme Court in Muddasani Venkata v. Muddasani Sarojana (decided on 05.05.2016) has held that: