* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 197/1997
Date of decision: 06.11.2009
IN THE MATTER OF :
M/S VEE VEDIONICS PVT. LTD. AND ANR. ..... Appellants
Through: Mr. Pawan Kumar Bansal, Advocate
versus
M/S ROHIT POLYMERS ..... Respondent
Through: Mr. Alok Bhachawat, Advocate, Mr.
Syed Hasan Isfahani, Advocate, Mr. Jainul
Abidin, Advocate and Mr. Udai Singh, Advocate.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may
be allowed to see the Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be
reported in the Digest? No.
HIMA KOHLI, J. (ORAL)
1. The present appeal arises out of the impugned judgment and decree dated 27.02.1997 passed by the learned ADJ in a suit for recovery of Rs.2,09,569.40 paise alongwith interest filed by the respondent, a proprietorship firm (plaintiff in the court below) against the appellants (defendants in the court below) towards value of the goods supplied.
RFA No. 197/1997 Page 1 of 9
2. The case of the respondent, as set out in the plaint was that the respondent was dealing in all kinds of plastic raw materials, which the appellants were purchasing against payment as well as on credit. The respondent averred that it had been maintaining a regular account in respect of the said purchases made by the appellants, which become irregular. As a result, an amount of Rs.1,74,641.20 paise was stated to be outstanding against the appellants since 04.04.1995. It was the case of the respondent that despite repeated requests, the appellants did not release the balance payment and instead, informed the respondent that they could not make the payment due to liquidity crisis and assured that the same would be cleared soon. As despite repeated requests, the respondent did not receive any payment, a legal notice dated 11.09.1995 was served upon the appellants, both by Registered AD Post as also under Postal Certificate. However, the legal notice was neither replied to nor any payment released by the appellants, thus compelling the respondent to institute the present suit on 07.02.1996.
3. The aforesaid suit was contested by the appellants, who filed a written statement wherein, it was stated that Shri Bhanwar Lal Doshi, proprietor of the respondent firm was also the proprietor of another firm by the name of M/s D.R. Plastics, which had dealings with the appellants and was supplying the same material to them. The RFA No. 197/1997 Page 2 of 9 appellants averred that an excess payment of Rs.1,15,955/- was made by them to M/s D.R. Plastics, the sister concern, but the said amount was liable to be returned as the material supplied was inferior. The excess amount was sought to be adjusted by the appellants in the account of the respondent herein. The receipt of the legal notice was denied by the appellants and it was stated that the amount liable to be adjusted from the account of M/s D.R. Plastics, the sister concern of the respondent firm, may be transferred to the account of the respondent and that after adjusting the said amount, nothing would be due or payable to the respondent. An objection with regard to territorial jurisdiction of the Delhi court to entertain the suit filed by the respondent was also raised on behalf of the appellants.
4. After the pleadings were completed, the following two issues were framed by the trial court:-
"1. Whether an excess payment of Rs.1,15,955/- has been made by the defendants to M/s D.R. Plastics, another firm of Sh. Bhanwar Lal Jain and whether the alleged payment is liable to be adjusted for paying the dues of this case by the defendants to the plaintiff? OPD.
2. Relief."
5. Evidence was led by both the parties. The respondent/plaintiff produced Shri Bhanwar Lal Doshi, proprietor of the firm as PW1 and the appellants produced Shri J.S. Madan, Addl.
Director of appellant No. 1 as DW1. After perusing the pleadings, RFA No. 197/1997 Page 3 of 9 documents placed on the record and examining the evidence of the parties, the trial court answered the issue No.1 against the appellants and held that they had failed to discharge the onus placed on them by proving that an excess sum of Rs.1,15,955/- had been paid by them to M/s D.R. Plastics, another firm of Sh. Bhanwar Lal Doshi or that the said payments could be adjusted by setting them off against the outstanding dues of the respondent in the present case. As a result, the suit of the respondent was decreed against the appellants for a sum of Rs.2,09,569.40 paise with costs & interest payable @ 24% per annum from the date of filing of the suit till realization of the decretal amount. Aggrieved by the said judgment and decree, the appellants preferred the present appeal.
6. Counsel for the appellants states at the outset that though a ground has been taken in the appeal that the trial court ought to have framed an issue with regard to territorial jurisdiction of the court to try and entertain the suit instituted by the respondent, however the said objection does not survive for the reason that at the time of admission of the appeal, on 07.08.1997, an application filed by the appellants seeking permission to lead additional evidence in the appeal on the question of jurisdiction, was rejected by the Division Bench with the observation that no such issue was claimed or got framed and as such, the point of jurisdiction could not be raised in appeal in view of RFA No. 197/1997 Page 4 of 9 Section 21 of the CPC. It is pertinent to note that as the present appeal was filed against a money decree, while admitting the appeal vide order dated 7.8.1997, on the stay application accompanying the appeal, the Division Bench stayed the execution of the decree in view of the statement made on behalf of the appellants that the decretal amount would be deposited in the trial court within four weeks. Permission was also granted to the decree holder to recover the money deposited on furnishing security for restitution during the pendency of the appeal. However, the decretal amount was not deposited by the appellants in the trial court. As a result, vide order dated 12.9.1997, the ex-parte interim order dated 7.8.1997 was vacated. Counsel for the respondent states that despite initiating execution proceedings in respect of money decree in the Court at Bhopal, the appellants have evaded paying the amount to the respondent till date.
7. Counsel for the appellants submits that apart from the issue of jurisdiction which had been turned down earlier as noted above, the impugned judgment is erroneous inasmuch as the learned ADJ erred in arriving at the conclusion that the appellants were unable to establish that the material supplied by the sister concern of the respondent was defective. It is urged that the trial court did not appreciate the fact that they had taken a bonafide stand that certain amounts were RFA No. 197/1997 Page 5 of 9 payable by the sister concern of the respondent firm, M/s D.R.Plastics which were liable to be adjusted from the accounts of the respondent herein while settling the account, both the firms being proprietorship firms of one and the same person, namely, Mr. Bhanwar Lal Doshi.
8. It is relevant to note that M/s D.R. Plastics had instituted a separate suit for recovery of a sum of Rs.1,56,519/- against the appellants, which was decreed in its favour vide judgment dated 27.02.1997. The said judgment has been assailed by the appellants by preferring a separate appeal, registered as RFA No. 193/1997. The aforesaid appeal is listed at item No. 20 in today's cause list. After hearing arguments in the said appeal, the same has been dismissed by a separate order and the impugned judgment dated 27.2.1997 has been upheld.
9. Coming to the case in hand, I have heard the counsels for the parties. I have also perused the impugned judgment, the pleadings, documents placed on the record and the deposition of the witnesses. The trial court examined the testimony of Mr. J.S. Madan, DW1, who deposed on behalf of the appellants. DW-1 stated that the proprietor of the respondent firm and M/s D.R. Plastics was common and that the material supplied by M/s D.R. Plastics was found to be defective whereupon, the appellants were assured that the value of RFA No. 197/1997 Page 6 of 9 the rejected material would be adjusted from the payments to be made by the appellants to the respondent herein for the supplies made. However, he claimed that the respondent did not abide by the assurance given to the appellants.
10. After taking into consideration the stand of the appellants, the trial court held that the appellants had failed to prove that any excess amount had been paid by them to M/s D.R. Plastics or the said payments could be adjusted against the outstanding dues of the respondent in the suit. In his cross-examination, DW1 admitted that whatever material had been supplied by the respondent, was correct and in accordance with the orders placed upon it. He also admitted that no letter was written by the appellants to the respondent while dispatching the last cheque issued on 03.04.1995. There are admissions on behalf of the appellants, accepting the fact that the billing in respect of respondent firm and M/s D.R. Plastics was separately prepared and payments were also separately made in respect of the goods supplied by the respondent firm and M/s D.R. Plastics. There exist obvious contradictions in the stand of the appellants, as noticed in the impugned judgment. While in para 5 of the written statement, the appellants denied the fact that any legal notice was served upon them, in his cross-examination, DW-1 admitted that the notice dated 11.09.1995 (Ex.DW1/P2) was received RFA No. 197/1997 Page 7 of 9 by the appellants in September or October, 1995. DW1 also admitted the statement of account filed by the respondent on the record (Ex.DW1/P1).
11. Having regard to the aforesaid categorical admissions on behalf of the appellants and the documents placed on the record by the respondent, this Court concurs with the findings of the trial court that the appellants failed to prove that any excess payment of Rs.1,15,955/- had been made by them to M/s D.R. Plastics. As separate accounts were maintained in respect of goods supplied by the respondent herein and M/s D.R. Plastics, the appellants could not claim adjustment of the alleged payments from the respondent against the outstanding payment in respect of the accounts of the appellants maintained by it in respect of the transactions pertaining to M/s D.R. Plastics. As noted above, by a separate judgment passed today, RFA No.193/1997 filed by the appellants against M/s D.R. Plastics, assailing the judgment dated 27.2.1997 has been dismissed by holding that the impugned judgment and decree dated 27.02.1997 passed by the trial court in a suit for recovery of Rs.1,56,519/- filed by M/s D.R. Plastics against the appellants, did not require any interference.
12. In view of the aforesaid facts and circumstances and the categorical findings returned by the trial court against the appellants RFA No. 197/1997 Page 8 of 9 with which this Court finds no reason to differ, the impugned judgment dated 27.02.1997 is upheld. The present appeal is dismissed with costs of Rs.10,000/-. The trial court record be released forthwith.
(HIMA KOHLI)
NOVEMBER 06, 2009 JUDGE
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RFA No. 197/1997 Page 9 of 9