Dev Arora vs Super Parts Pvt. Ltd. And Anr.
1995 Latest Caselaw 585 Del

JUDGMENT

S.K. Mahajan, J.

(1) This suit has been filed for recovery of Rs. 2,93,627.40 paise on the allegations that the plaintiff-company is carrying on business of metal processing, Chemical plating, that the defendants approached the plaintiff sometime in the year 1980 for getting their gas stoves, burners, etc. processed, finished and nickel plated from the plaintiff to which the plaintiff is stated to have agreed. It is stated that the plaintiff executed various jobs for the defendant up to November, 1985 and submitted bills for the work done Along with periodical statement of accounts. The defendant used to make payments after adjusting their counter demands and checking the statement of account. It is stated that as per the statement of account dated 1st April, 1985 forwarded by the plaintiff, a sum of Rs. 2,58,988.22 paise was due from the defendants. The said amount is stated' to have been accepted to be payable by the defendant for the jobs carried out by the plaintiff. However, certain arbitrary deductions in the bills have been alleged to have been made and a sum of Rs. 1,05,641 .00 was stated to have been shown to be payable from the defendant to the plaintiff in the said reconciliation statement for the period ending 20th June, 1985. Plaintiff is also stated to have carried out certain additional job works vide Bill No. 3931 dated 11th August, 1985 for Rs. 8,686.00 and Bill No. 3965 dated 1st November, 1985 for Rs. 7,740.00 . It is, therefore, submitted that the defendants were due a total sum of Rs. 2,14,483.39 paise as per the bills given in paragraph 7 of the plaint. Claiming interest at the rate of 18 per cent per annum, the plaintiff has claimed a sum of Rs. 79,144.01 paise towards interest. Notice dated 6th April, 1987 is stated to have been issued to the defendant and inspite of service as the amount was not paid, the plaintiff has filed this suit claiming a sum of Rs. 2,96,627.40 paise as the total amount due from the defendant.

(2) On the summons having been served upon the defendants, they Filed the written statement. The case as made out in the written statement is that during the progress of the work, raw material used to be supplied to the plaintiff and the plaintiff has not returned material worth Rs. l,77,131.00 and has with held the same. It is stated that on account of the work not being satisfactory, the defendants used to issue debit notes and after adjusting debit notes, the amount payable was Rs. 1,05,641.00 . The defendant has, therefore, made a counter claim of Rs. 60,904.94 paise and has claimed a decree for the said amount. Court fee has been paid on the counter claim by the defendant.

(3) On the pleadings of the parties, the following issues were framed :- (I)Whether M/s. Silver Crown Metal & Processes is the sole proprietory concern of the plaintiff? If so, to what effect? Opp (ii) Whether a sum of Rs. 2,14,483.39 paise is due to the plaintiff, being the balance principal amount, as charges for the work done for the defendants? Opp (iii) Whether the plaintiff with-held the raw material of the defendants of a value of Rs. 1,74,131.00 as alleged in para 6 of the written statement? If so, are the defendants entitled to recover the same without payment of Court-fee? Opd (iv) Whether the defendants are entitled to recover an additional amount of Rs. 60,904.94 as a counter claim as per the allegations in para 7 of the written statement? Opd (v) Whether the plaintiff is entitled to interest ? If so, at what rate and for what period? Opp (vi) Relief.

(4) The plaintiff has produced Mr. Dev Arora as the only witness in support of his case, whereas the defendants have produced Mr. S.N. Singh, Store Assistant of the defendant-company and Mr. Anil Kumar Jain, Accountant of the defendant company.

(5) I have heard learned Counsel for the parties. Issue NO. 1

(6) The onus of proving this issue was on the plaintiff. The plaintiff in his statement stated that he was the sole proprietor of M/s. Silver Crown Metal and Processes and that this concern was functioning since 4th December, 1974. There is no cross-examination of the said witnesses on this point and I, therefore, hold that M/s. Silver Crown Metal and Processes was the sole proprietory concern of the plaintiff. Issue No. 1 is, accordingly decided in favor of the plaintiff. Issue No. 2

(7) To prove this issue, the plaintiff has placed reliance on the reconciliation statement exhibit PW.1/1 which has been issued by the defendant. In this statement, it is mentioned that a sum of Rs. 2,58,988.22 paise was due as balance in terms of the statement of. the plaintiff. From the said amount certain amount has been debited and a sum of Rs. 1,05,641.06 paise has been shown to be due from the defendant to the plaintiff. The argument of Mr. Nigam, learned Counsel for the plaintiff, is that once the defendant had admitted in the said reconciliation statement that a sum of Rs. 2,58,988.22 paise was due from the defendant to the plaintiff, the onus was upon the defendant to prove that it was justified in making deductions as had been made in the said statement. The entire case of the plaintiff is dependant upon the reconciliation statement exhibit PW.1/1. In paragraph 7 of the plaint what has been stated by the plaintiff is that the plaintiffs were due a sum of Rs. 2,14,483.39 paise as per the bills given in the said paragraph. The amount claimed in paragraph 7 of the plaint includes a sum of Rs. 1,05,641.06 paise as has been admitted by the defendant in the statement exhibit PW.1 /1. Further amount which has been claimed in paragraph 7 of the plaint is a sum of Rs. 59,556.00 which is the amount of debit notes which are stated to have been issued by the defendant. The plaintiff has also claimed a sum of Rs. 8,218.00 in respect of Bill No. 3665, Rs. 210.00 for Bill No. 3794 and Rs. 8,730.00 for Bill No. 3728. A sum of Rs. 506.55 paise which has been shown to have been debited to the account of the plaintiff on account of debit Note No. 851 is also claimed. Amount in respect of Bill Nos. 3902, 3843,3931 and 3965 has also been claimed besides claiming a sum of Rs. 9,864.98 paise being some alleged old difference. A sum of Rs. 150.00 stated to have been paid in cash by the defendant has also been claimed. Though it is the case of the plaintiff that bills used to be sent only after the defendant used to issue an O.K. certificate after inspection of the material, no such certificate has been placed on record. PW.2, the Accountant of defendant-company while appearing as a witness has, however, admitted that a sum of Rs. 59,556.00 has been disallowed on account of debit notes issued by the defendant. It is also admitted by him that while Bill Nos. 3657,3665 and 3794 were passed for payment, the payment was not made because of the debit notes having been issued by the defendant. He has, however, admitted that the said bills had been passed for payment by the defendant. Bill Nos. 3828 and 3902 were not passed for payment by the defendant and there is nothing on record to indicate that the said two bills were ever submitted on the basis of the inspection notes which might have been prepared by the defendant because such inspection notes have not been placed on record. There is also no evidence on record to indicate that the plaintiff was entitled a sum of Rs. 9,864.98 paise alleged to be an old difference. No explanation of Rs. 150.00 has also been given by the plaintiff as to how this amount is due.

(8) The defendant in the reconciliation statement Exhibit PW. 1 /1 has admitted that a sum of Rs. 1,05,641.06 paise was due to plaintiff and a sum of Rs.59,556.00 was deducted from the bills of the plaintiff due to defects in the execution of work.

(9) It has been argued by Mr. Bajaj appearing for the defendant that the reconciliation statement Exhibit PW.1/1 has either to be read as a whole or has to be rejected. Contention is that the defendant has admitted a sum of Rs. 1,06,641.06 paise to be due to the plaintiff and as such the plaintiff cannot claim any further amount from the defendant on the basis of the admissions alleged to have been made in the said statement Exhibit PW.1/1. To my mind, the argument has no basis. The defendant in the said statement has not only admitted the aforesaid amount to be due to the plaintiff but it has also impliedly admitted in the written statement that a sum of Rs. 59.556.00 was deducted on account of certain debit notes issued by the defendant and the payment of certain bills was also not made due to the alleged defects in the execution of the jobs covered by the said bills. It was, therefore, for the defendant to prove that they were justified in making deductions of the amount for which the debit notes have been issued as per PW.1/1. To my mind, the defendant has not been able to discharge the onus and consequently they will not be entitled to the deductions as have been made in the bills. In case, the deductions made in the said bills are added to the amount admitted in the said statement, the plaintiff would be found due the amount much more than what has been claimed in paragraph 7 of the plaint. Plaintiff, in any case, cannot improve his case merely on the basis of the said admissions made in the statement Exhibit PW.1/1 and in the absence of any other document on record, the best case the plaintiff has is to claim the sum of Rs. 2,14,483.39 paise as has been claimed in paragraph 7 of the plaint. As already indicated above, plaintiff has not been able to prove their Bill Nos. 3828 and 3902 were submitted after the approval of the material by the defendant as no inspection note allegedly approving the material has been placed on record.

(10) The plaintiff is also not entitled to a sum of Rs. 8,730.00 being the amount of Bill No. 3728 (2328). Though Bill Nos. 3931 and 3965 have stated to have been submitted by the plaintiff to the defendant, however, neither the said bills have been proved on record nor it has been proved that the said bills were prepared on the basis of the inspection notice issued by the defendant. Deducting this amount from the amount claimed in paragraph 7 of the plaint, I find that a sum of Rs. 1,74,494.61 paise will be due from the defendant to the plaintiff. Issue Nos. 3 & 4.

(11) The onus of proving these issues was upon the defendant. Besides a bald statement made by witnesses of the defendant, nothing has been placed on record to indicate that any material which might have been supplied by the defendant to the plaintiff was not returned back to the said defendant. It was incumbent upon the defendant to place on record sufficient evidence to give the details of the material which had been supplied by it to the plaintiff and the material which had been returned back by the plaintiff to the defendant which could prove the material which had been withheld by the plaintiff. As the defendant has not been able to prove that any material had been withheld by the plaintiff, they are not entitled to recover any amount from them. Both of these issues are, accordingly, decided against the defendant and in favor of the plaintiff. Issue No. 5.

(12) Before filing the suit, plaintiff had given notice Exhibit PW.1/4 to the defendant. In the said notice the defendant had also claimed interest at the rate of 18 per cent per annum. Inspite of service of notice the defendant has not paid the amount. The plaintiff is, therefore, entitled to interest from the defendant. The defendant has claimed interest at the rate of 18 per cent per annum. Nothing has been placed on record that the agreed rate of interest was 18 per cent per annum. I, therefore, feel that the ends of justice will be met, in case interest is allowed at the rate of 12 per cent per annum. Calculating interest at the rate of 12 per cent per annum, the plaintiff will be entitled to a sum of Rs. 42,000.00 as interest. Issue No. 6

(13) In view of the discussions above, I pass a decree for Rs. 2,16,494.61 paise in favor of the plaintiff and against the defendant with proportionate cost. The plaintiff will also be entitled to interest at the rate of 12 per cent per annum from the date of filing of the suit till the date of decree on the principal amount of Rs. 1,74,494.61 paise and at the same rate on the decretal amount from the date of the decree till realisation.