A-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 17.01.2011
+ RSA No.184/2007
SHRI D.P.AGGARWAL ...........Appellant
Through: Mr.N.S.Dalal & Mr.Devesh Pratap Singh
Advocate.
Versus
J.K.CORPORATION LIMITED ..........Respondent
Through: Mr.Sumesh Gandhi, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated 29.3.2007 which had endorsed the finding of the trial judge whereby the suit of the plaintiff J.K.Corporation had been decreed for Rs.90,365.23 along with interest @ 12% per annum.
2. Plaintiff J.K.Corporation had dealings with the respondent firm. The plaintiff was making supply of various grades of cement on credit basis from time to time to the defendant. Parties were maintaining a running account. It is not disputed that the parties had dealings with one another. The contention of the plaintiff was that for the various goods supplied to the defendant the defendant has not made payments. A sum of Rs.90,365.23 was still due and payable from the defendant which in spite of legal notice was not RSA No.184/2007 Page 1 of 4 paid.
3. In the written statement, it was not disputed that the parties had dealings with one another. Contention of the defendant is that no amount was due and payable to the plaintiff. A sum of Rs.1,14,387/- had been paid by the defendant to the plaintiff; all accounts is clear by the accounts between the parties stood settled.
4. Trial judge had framed four issues. Plaintiff in support of his case had examined three witnesses and defendant had examined himself. On the basis of oral and documentary evidence the suit of the plaintiff was decreed. The impugned judgment had endorsed this finding.
5. On behalf of the appellant, it has been urged that the findings in the impugned judgment are perverse and call for interference even at the second appellate stage. Attention has been drawn to the testimony of PW-1 wherein in his cross- examination he had admitted that prior to delivery of material an order was placed upon the defendant; Ex.PW-1/1 to Ex.PW-1/3 (which are the invoices) do not bear the signature from any person from their transport company. It is pointed out that in the absence of order/agreement have being placed on record by the plaintiff and the admission of PW-1 that the invoices had not been signed by any person on their behalf these documents could not have been read in evidence. Attention has been drawn to the version of PW-2 wherein he had admitted that there is no document on record showing that the plaintiff had appointed M/s Rajgaria Enterprises as their sale organizer cum handling agent for Delhi; PW-2 and PW-3 have both admitted that there was an agreement between the parties for supply of goods. It is pointed out that this agreement RSA No.184/2007 Page 2 of 4 has not been produced on record. PW-1 has also admitted that the invoices were not signed by the defendant; there being no other documentary evidence filed by the plaintiff that the invoices were signed by the defendant, the same could not be read in evidence. Findings are perverse. To support his submissions, appellant has placed reliance upon a judgment of Apex Court reported in 2000 SC 426 Ishwar Dass Jain Vs. Sohan Lal to support his stand that where there is no material or relevant evidence which has been considered by the appellate Court, the High Court is well within its power to reverse this finding in term of Section 100 of the Code. For the same proposition reliance has also been placed upon judgment of Supreme Court reported in (2007) 15 SCC 529 Udham Singh Vs. Ram Singh .
6. Both the aforenoted judgments are premised on a situation where there is no evidence or where a finding has been returned on evidence which is inadmissible.
7. The instant case is not one such case. The court had relied upon the three invoices Ex.PW-1/1 to Ex.PW-1/3. The bills had been proved as Ex.PW-2/5/1 to Ex.PW-2/5/10. Statement of account had been proved as Ex.PW-2/4. The challan had been proved as Ex.PW-2/D-1 to Ex.PW-2/D-12. All these process of evidence, thus, evidenced the fact that cement had in fact been supplied by the plaintiff to the defendant. The contention of the defendant all along was that the account stood settled but no such document had been produced by him. It was in this context that the trial judge had recorded a finding that the documents have not been proved by the defendant. The contention of the defendant that he had returned 114 bags of cement was also not borne out by RSA No.184/2007 Page 3 of 4 any documentary evidence. Per contra, the plaintiff had adduced sufficient evidence on record and it is on the basis of this documentary evidence which had been supported by the testimony of the witnesses of the plaintiff that the suit of the plaintiff stood decreed. The cross-examinations of PW-1, PW-2 and PW-3 pointed out by learned counsel for the appellant refer to an agreement yet none of the witnesses have deposed that there was any written agreement; question of production of this document does not arise. In fact, the defendant had never disputed that the parties did not have commercial dealings with one another or that the plaintiff was not making supply of cement to the defendant. This is not a case where no evidence has been led or evidence has been led which was inadmissible. The judgments relied upon by the learned counsel for the appellant do not have any bearing in this factual scenario.
8. Substantial questions of law have been phrased on page 2 and 3 of the appeal. They do not in any manner form any substantial question of law. No question of law having been arisen, the appeal is without any merit; it is dismissed in limine.
INDERMEET KAUR, J.
JANUARY 17, 2011 nandan RSA No.184/2007 Page 4 of 4