* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.182/2001
% 13th October, 2011
M/S. FRIENDS AUTOMOBILES ..... Appellant
Through: Mr. Naresh Khanna, Adv.
versus
M/S. NEPTUNE EQUIPMENT PVT. LTD. ..... Respondent
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) R.P.No.437/2011 For the reasons stated in the application, the appellant is re-heard after setting aside the judgment dated 7.2.2011 inasmuch as the same was decided in the absence of the appellant.
I have heard the counsel for the appellant with respect to the appeal. The application is disposed of.
RFA No.182/2001 Page 1 of 7 RFA 182/2001
1. The challenge by means of this Regular First Appeal is to the impugned judgment and decree dated 31.1.2001 whereby the suit of the respondent/plaintiff for recovery was decreed. The suit for recovery was decreed for price of two machines supplied to the appellant i.e. one Neptune Diesel Smoke Meter and one Neptune Exhaust Gas Analyser.
2. The facts of the case are that with respect to the two machines supplied to the appellant, the respondent/plaintiff raised bills numbered 92361 and 92362, dated 28.7.97, for Rs.1,65,000/- and Rs.1,22,100/- respectively. The appellant made payment of only Rs.25,000/-, and the balance amount was given by post-dated cheques which were dishonoured on presentation, resulting in filing of the suit.
3. Three heads of arguments have been addressed on behalf of the appellant in this appeal. First is that the machinery which was supplied by the respondent/plaintiff was defective and therefore the respondent/plaintiff was not entitled to any amount. The second argument is that the Courts at Delhi had no territorial jurisdiction. The third argument is that the Trial Court wrongly closed the evidence of the appellant/defendant.
4. After completion of pleadings, the trial court in the present RFA No.182/2001 Page 2 of 7 case framed the issues by passing the following order:-
"1.03.2000 Present- Representative of the parties.
Replication filed. Copy given. The following issues are framed.
1. Whether the machinery supplied by the plaintiff to the defendant was defective as alleged by the defendant and defendant was not liable to pay the cost of the equipment? O.P.D.
2. Whether this court has no territorial jurisdiction to entertain this suit? O.P.D.
3. Whether the plaintiff is entitled to claim the amount of the suit alongwith interest? O.P.P.
4. Whether the suit is signed and verified by duly authorized person.
5. Relief.
To come up for evidence of the defendant on issue o. 1 and 2 on 8.5.2000."
5. A reading of the order dated 1.3.2000 passed by the trial court shows that the onus of proof of issue numbers 1 and 2 was on the appellant/defendant. This order has become final because the same was neither challenged by the appellant/defendant in a higher court either at that stage nor it has been challenged in the present appeal. Therefore, onus of proof that the plaintiff was not entitled to payment was on the appellant/defendant. Further, the onus of proof was rightly put on the appellant/defendant inasmuch as the RFA No.182/2001 Page 3 of 7 appellant/defendant admitted to having received the machinery and the bills, and its defence was that money was not liable to be paid because the machinery was defective, and which therefore had necessarily to be proved by the appellant/defendant and therefore onus of proof was rightly put on the appellant/defendant.
6. After the issues were framed, the first date which was fixed for evidence was 8.5.2000 when no evidence was led on behalf of the appellant/defendant on the ground that the sole proprietor of the appellant had fallen sick. The next date fixed in the case for evidence was 9.8.2000 when once again no evidence was led on the ground that the mother of the sole proprietor expired. There was, however, no date given as to when the mother had expired. The Trial Court therefore fixed a third date for evidence, i.e. 20.11.2000. Once again on this date no evidence was led on behalf of the appellant and therefore the case was adjourned on payment of costs of Rs.1,000/- for evidence of the appellant/defendant on 31.1.2001. On 31.1.2001 also no witness was present on behalf of the appellant/defendant and therefore evidence of the appellant/defendant was closed. I therefore do not find any illegality or perversity in the impugned order of the Trial Court dated 31.1.2001 which closed the evidence of the appellant/defendant as evidence was not led on 4 occasions, i.e. RFA No.182/2001 Page 4 of 7 8.5.2000, 9.8.2000, 20.11.2000 and 31.1.2001.
7. Once the appellant/defendant failed to lead evidence when the onus of proof of the issues was on him, nothing further remained and suit therefore was rightly decreed.
8. Learned counsel for the appellant/defendant argued that the onus of proof of issue no. 3 as to the entitlement of interest was on the respondent/plaintiff and therefore this issue having not been proved, the respondent/plaintiff should not be entitled to interest. I do not agree with this argument as advanced on behalf of the learned counsel for the appellant/defendant inasmuch as the appellant/defendant admitted to having received the legal notice dated 15.7.1998 which was sent by the respondent/plaintiff, and in which notice interest was claimed. Once a legal notice is sent claiming interest, the provision of Section 3(1)(d) of the Interest Act, 1978 comes into play entitling the court to award interest. The receipt of legal notice dated 15.7.1998 sent by the respondent/plaintiff to the appellant/defendant is not only admitted, the appellant/defendant in fact sent a reply dated 8.10.1998 through his Advocate. An admitted fact therefore was not required to be proved, and the trial court was therefore justified in awarding interest.
9. Learned counsel for the appellant finally argued that the RFA No.182/2001 Page 5 of 7 Courts at Delhi had no jurisdiction and therefore the suit ought to have been dismissed. Firstly, the onus of proof of this issue was put upon the appellant/defendant because the issue which is framed is not that whether the Courts at Delhi had territorial jurisdiction but the issue framed was whether the Courts at Delhi had no territorial jurisdiction. Once no evidence was led on behalf of the appellant/defendant on an issue on which onus of proof is on him, there was no need of rebuttal of evidence and therefore the Trial Court was justified in arriving at a finding that the Courts at Delhi had territorial jurisdiction. I have also gone through the contract entered into between the parties dated 26.08.1997. This purchase order is addressed to the respondent/plaintiff at its Delhi address. This is signed by both the parties. Prima facie, therefore, it cannot be said that the Courts at Delhi did not have territorial jurisdiction. As already stated, once prima facie the Courts at Delhi had territorial jurisdiction, and onus of proof was put upon the appellant/defendant to prove otherwise, the appellant/defendant ought to have led evidence to discharge the onus, but he failed to do so, and hence the Trial Court has therefore rightly held that the Courts at Delhi had territorial jurisdiction.
10. A civil case is decided on balance of probabilities. In the present case, once the appellant/defendant failed to lead any RFA No.182/2001 Page 6 of 7 evidence, onus of the crucial issues being on him, the Trial Court on balance of probabilities was entitled to arrive at the findings and conclusions which it has done. There is no illegality or perversity in the findings of the Trial Court entitling this Court to interfere in appeal.
11. The appeal is accordingly dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA,J
OCTOBER 13, 2011
ak
RFA No.182/2001 Page 7 of 7