Delhi High Court
National Consumer Co-Operative ... vs M/S Navjivan Traders & Anr. on 3 February, 2011
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.117/2001
% 3rd February, 2011
NATIONAL CONSUMER CO-OPERATIVE FEDERATION OF INDIA LTD.
...... Appellant
Through: Mr. J.P.Sengh, Sr. Adv. with Mr. Sumeet
Batra, Advocate.
VERSUS
M/S NAVJIVAN TRADERS & ANR. ...... Respondents
Through: None.
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. This case is on the 'Regular Board' of this court since 3.1.2011. Today,
this case is effective item no.1 on the 'Regular Board'. It is 12 noon and no
one has appeared for the respondents. I have therefore heard the
arguments of the learned senior counsel for the appellant and after perusing
the record am proceeding to dispose of the appeal.
2. 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
RFA 117/2001 Page 1 of 6
dated 20.12.2000 whereby the trial court decreed the suit for recovery of the
respondent against the appellant with respect to the claims for value of
goods supplied namely dal/pulses and also refund of security amounts.
3. The facts of the case are that two contracts dated 14.8.1984 and
27.8.1984 were entered into between the parties for supply by the
respondent of various dals/pulses. The supplies were to be made by the
respondent/plaintiff to Food Corporation of India (FCI) on behalf of the
appellant. The appellant had to deposit a sum of Rs.87,000/- as security
under the contract dated 27.8.2004 and a security of Rs.64,300/- under the
contract dated 14.8.1984. The gunny bags in which, dals/pulses were to be
supplied belonged to FCI and therefore appellant gave a security deposit of
Rs.33,000/- for the gunny bags.
4. The case of the respondent/plaintiff was that the complete supplies
were effected and therefore, accordingly, the respondent/plaintiff was
entitled to return of the securities amount as also payments with respect to
certain dals/pulses supplied, which originally were found to be defective, and
which were replaced by the respondent/plaintiff. In the suit therefore, the
following amounts were claimed:-
(i) Rs.1,51,300/- being the security amounts of Rs. 87,000/- and
Rs.64,300/-.
(ii) Rs.33,000/- towards security of gunny bags,
RFA 117/2001 Page 2 of 6
(iii) A sum of Rs.1,23,467/- towards dals/pulses supplied i.e., those dals
and pulses which were found to be defective and were subsequently
replaced.
5. The appellant/defendant contested the case and its stand was that the
respondent/plaintiff supplied defective goods whereby deductions were
made by FCI from the payments which were to be received by the
appellant/defendant. The appellant/defendant also contended that since the
respondent/plaintiff failed to return the gunny bags, FCI deducted amounts
towards this head also.
6. The trial court has by the impugned judgment and decree has held that
the respondent/plaintiff has proved to have replaced the defective
dals/pulses and was therefore entitled to the value of Rs.1,23,467/-. The trial
court has also held that since the contract was complete, the
appellant/plaintiff was bound to refund the security amounts under different
heads to the respondent/plaintiff.
7. On behalf of the appellant, learned senior counsel Mr. J.P.Sengh argued
that the onus of proof lay upon the respondent/plaintiff to show that the
defective dals/pulses of Rs.1,23,467/- were in fact replaced, and which onus,
the respondent/plaintiff failed to discharge because except an oral statement
in the examination in chief no documentary evidence was furnished from the
FCI that the defective dals/pulses were replaced. It has been argued that the
oral statement of the witness of the respondent/plaintiff stood rebutted by a
RFA 117/2001 Page 3 of 6
positive assertion of the witness of the appellant in his examination-in-chief
that the defective dals/pulses were not replaced, and on the contrary, the
amounts were recovered by FCI from the appellant/defendant on account of
the defective dals/pulses. Mr. Sengh, Sr. Adv. has further argued that oral
statement of the respondent/plaintiff's witness in the examination-in-chief of
return of the gunny bags was again contradicted by the deposition of the
witness of the appellant/defendant that the gunny bags were not returned to
the FCI and consequently, FCI made deductions from the payments made to
the appellant/defendant.
8. Mr.Sengh, Sr. Adv. further argued that the deductions which were
made by FCI from the bills which the appellant submitted to FCI, were much
larger than the claims made by the respondent/plaintiff towards the value of
the dals/pulses and the securities. Attention of this court has been drawn to
the positive assertion of DW-1 in his examination-in-chief that FCI on account
of failure of the respondent/plaintiff to replace the defective dals/pulses and
the gunny bags deducted a sum of Rs.10 lacs towards the defective supplies
and a sum of Rs.2,99,500/- towards non-return of the gunny bags. It was
further argued that once it is found that the dals/pulses were not replaced
and the FCI deducted amounts towards these defective dals/pulses and also
other recoveries made by FCI towards gunny bags, the suit of the
respondent/plaintiff clearly could not be decreed.
RFA 117/2001 Page 4 of 6
9. I completely agree with the submissions as made on behalf of the
appellant/defendant. It was the respondent/plaintiff who came to the court
with a stand that dals/pulses of the value of Rs.1,23,467/- were replaced. On
these issues, oral statements cannot discharge onus of proof, more so,
because such oral statements were contracted by the oral statements of the
witness of the appellant/defendant. Admittedly, no documentary evidence
was placed by the respondent/plaintiff in the trial court showing the
replacement of the defective dals/pulses of the amount of Rs.1,23,467/-.
Obviously, therefore, the trial court has committed a grave illegality and
perversity in decreeing the suit for the amount of Rs.1,23,467/- without it
having been proved in the suit of replacement of dals/pulses for the amount
of Rs.1,23,467/-. Once the dals/pulses are defective and the witness of the
appellant/defendant, a servant of a public-sector undertaking, deposed that
a total amount of Rs.12,99,500/- was recovered from the appellant on
account of defective dals/pulses and gunny bags not returned, there was no
scope for decree of the suit inasmuch as documentary proof on behalf of the
respondent/plaintiff was not only not filed with respect to dals/pulses
replaced but also no certificate was filed from FCI of having returned the
gunny bags. I, in fact find that amounts of Rs.12,99,500/- have been
recovered from the appellant/defendant by the FCI which are much larger
than what is being claimed by the respondent/plaintiff.
RFA 117/2001 Page 5 of 6
10. In view of the above discussion, the appeal is accepted. The impugned
judgment and decree is set aside. The suit of the respondent/plaintiff is
therefore dismissed. Decree sheet be prepared accordingly. The amount
deposited by the appellant in this court along with accrued interest, if any,
be refunded back to the appellant. Trial court record be sent back.
February 03, 2011 VALMIKI J. MEHTA, J.
ib RFA 117/2001 Page 6 of 6