Sham Dyers And Anr. vs Bijender Sharma
2006 Latest Caselaw 1786 Del

JUDGMENT

S.L. Bhayana, J.

1. This appeal is directed against the order of learned Additional District Judge, Delhi dated 19-08-2002 whereby learned ADJ has decreed the suit of the plaintiff for a sum of Rs.2,83,618/- with pendente lite interest @ 6% per annum along with proportionate cost. Learned trial court also dismissed counter claim of the defendants.

2. Brief facts of the case of the plaintiff are that plaintiff filed a suit under Order 37 CPC for recovery of Rs.3,81,093/- against the defendants. Plaintiff has stated in the plaint that plaintiff is a petty contractor and is doing job work of dying, printing, finishing, folding, checking, etc. Plaintiff is running business under the name and style of ''M/s. Mohan Baba Traders''. Defendant No.1 is the proprietorship concern of Shyam Sunder Viz., defendant No.2. Defendants have their branch at 664 & 666, West Guru Angad Nagar, Laxmi Nagar, Delhi. Defendants have their factory at Noida. On 09-11-96, an agreement was executed between plaintiff and the defendants for doing job work. Defendants were to supply cloth measuring 1,50,000 meters per month to the plaintiff and plaintiff was to do the job of dying, printing, etc. on the said cloth. Plaintiff executed the job to the satisfaction of the defendants and also raised certain bills. Defendants did not pay an amount of Rs.3,70,262/- to the plaintiff which had become due against the defendants up to August 1997. Defendants thereafter paid a sum of Rs.30,000/- but did not pay remaining amount of Rs.3,40,262/-.

3. Summons of the suit were served upon the defendants and the defendants put in their appearance. Thereafter summons for judgment were served on the defendants. Defendants moved an application for leave to defend the suit and also filed a counter claim for a sum of Rs.69,450/-. Leave to defend the suit was granted to the defendants.

4. The defendants in the written statement stated that plaintiff had received a sum of Rs.2,19,450/- from the defendants but he executed the work only for a sum of Rs.1,50,000/- and, therefore, defendants were entitled to a counter claim of Rs.69,450/- from the plaintiff. Defendants denied the liability to pay a sum of Rs.3,40,262/- to the plaintiff.

5. After going through the pleadings of the parties, the trial court framed the following issues:

1. Whether the plaintiff is entitled to recover Rs.3,81,093/- with interest from the defendant as alleged? OPP

2. Whether the suit is not maintainable as alleged? OPD

3. Whether this Court has no territorial jurisdiction to try the suit? OPD

4. Whether the counter claimant/defendant is entitled to recover Rs.69,450/- with interest from the plaintiff as alleged? OP Counter claimant.

5. Whether the counter claimant has no cause of action to file the claim? OPD

6. Relief.

6. After the plaintiff had led the evidence, defendants were called upon to lead their evidence. Defendants examined only one witness and their evidence was closed on 06-08-2001. Thereafter, defendants moved application Under Order 18, rule 17A CPC which was allowed subject to cost of Rs.1,000/- and defendants were allowed to lead further evidence. Even thereafter, defendants did not produce any evidence and their evidence was again closed on 09-05-2002. Thereafter, another application was moved Under Order 18, rule 17A CPC which was again allowed by the learned trial court subject to cost of Rs.3,000/- on 05-06-2006 and defendants were also called upon to produce evidence but despite opportunities given to the defendants, defendants failed to produce any further evidence.

7. After hearing both the parties, learned trial court decided issue No.1 in favor of plaintiff and against the defendants and held that plaintiff was entitled to recover a sum of Rs.2,83,618/- from the defendants. Learned trial court has also decided issue No.3 in favor of the plaintiff and against the defendants and held that the trial court has got the jurisdiction to entertain the suit filed by the plaintiff against the defendants. Regarding issue No.4, learned trial court came to the conclusion that since the defendants have failed to produce any evidence to prove their counter claim, it was held that in the absence of any evidence on record this issue was decided against the defendants and in favor of the plaintiff. Regarding issue No.5, learned trial court came to the conclusion that defendants have failed to prove on record that defendants had paid an amount of Rs.2,19,450/- to the plaintiff but the defendants have executed work only for Rs.1,50,000/-. So, in the absence of any evidence produced by the defendants, this issue was also decided in favor of the plaintiff and against the defendants. Ultimately, the learned trial court decreed the suit of the plaintiff for a sum of Rs.2,83,618/- along with interest @ 6% per annum pendente lite and also awarded proportionate costs of the claim. The counter claim filed by the defendants was dismissed by the learned trial court.

8. We have heard learned Counsel for the parties and perused the record carefully. Learned Counsel for the appellant has submitted that the trial court has erred in passing decree for a sum of Rs.2,83,618/-. Learned trial court did not apply its mind while passing the impugned judgment and decree dated 19-08-2002 as there is no evidence led by the plaintiff to prove his claim and that the impugned judgment and decree is liable to be set aside. He has further stated that defendants had paid a sum of Rs.2,19,450/- to the plaintiff whereas plaintiff had executed work only to the tune of Rs.1,50,000/- and the plaintiff was required to pay back a sum of Rs.69,450/- to the defendants but the learned trial court erred in holding that defendants have not paid Rs.2,19,450/- to the plaintiff and has also wrongly passed the decree for Rs.2,83,618/- in favor of the plaintiff and against the defendants. Learned trial court has also erred in not allowing the counter claim of the defendants for a sum of Rs.69,450/- against the plaintiff. It is further submitted that the impugned judgment and decree may kindly be set aside and the counter claim for a sum of Rs.69,450/- filed by the defendants may be allowed.

9. On the other hand, learned Counsel for the respondent has submitted that in this case plaintiff has produced sufficient evidence to prove his case before the learned trial court. Plaintiff has filed his evidence by way of affidavit in which he has categorically stated that an agreement dated 09-11-96 was entered into between the parties and it was agreed that the respondent will give at least 1,50,000/- meters cloth per month and in case the production is less than that the respondent will be entitled to submit the bills up to that limit. He has also submitted in the affidavit that respondent carried out job work in terms of the agreement and submitted bills to the defendants up to July 1997. In August 1997, plaintiff had to stop work as the defendants stopped making him payment for the work done by him. A sum of Rs.3,70,262 became due and payable against the defendants but they only paid Rs.30,000/- and a sum of Rs.3,40,262/- was still outstanding against the defendants and a sum of Rs.56,644/- was due towards less production and a sum of Rs.2,83,618/- was due towards the unpaid bills.

10. We have also gone through the cross-examination of the witness PW1 Vijender Sharma but nothing significant could be elicited in the cross-examination which could impeach the credibility of this witness. Plaintiff has proved on record agreement Ex.PW1/4 dated 09-11-96. He has also proved the bills raised by him Ex.PW1/5 to PW1/14. Plaintiff also proved statement of account Ex.PW1/15. In the cross-examination, a suggestion was put to him that the bills Ex.PW1/5 to PW1/14 do not bear the signatures of the defendants, the plaintiff replied that all these bills were not signed by the Production in charge of the defendants. It was also put to him that he had left the work incomplete and did not complete the job work assigned to him. It was also put to him that an excess payment was made to the plaintiff by the defendants but no copy of the statement of the account showing that plaintiff was given any excess payment was confronted to the plaintiff in the cross-examination.

11. In our opinion, plaintiff has been able to prove his case that an agreement was entered into between the plaintiff and the defendant. He also proved that defendants did not pay him a sum of Rs.2,83,618/- for the job done by him for the defendants against the unpaid bills. In our opinion, plaintiff has proved its case beyond reasonable doubts against the defendants. We have also gone through the evidence produced by the defendants. Defendants produced only one witness, namely, Shayam Sunder Viz. His cross-examination was not completed as the defendants failed to produce this witness in the court despite several opportunities given to them. Defendants also failed to produce the original document, i.e., original agreement and the original bills submitted by the plaintiff to the defendants. Defendants also failed to prove than an excess payment of Rs.69,450/- was made to the plaintiff by the defendants. Defendants also failed to prove that plaintiff had done the job work for Rs.1,50,000/- whereas payment of Rs.2,19,450/- was made to him and, therefore, an excess payment of Rs.69,450/- was made to the plaintiff by the defendant. The only witness produced by the defendant was never cross-examined. So, his evidence cannot be read in this case.

12. We have no hesitation in holding that defendants have failed to prove their counter claim for a sum of Rs.69,450/-, rather plaintiff has proved the agreement as well as bills submitted by him to the defendants and we are satisfied that learned trial court has rightly decreed the suit of the plaintiff for a sum of Rs.2,83,618/- along with interest @ 6% per annum pendente lite along with proportionate cost.

13. Keeping in view the discussions made above, we are of the considered view that appellants have failed to prove that plaintiff had done job work for a sum of Rs.1,50,000/- while he was paid a sum of Rs.2,19,450/-. The appellants have also failed to prove their counter claim of Rs.69,450/- against the plaintiff/respondent as no evidence was produced by the defendants before the trial court despite several opportunities being given to prove their case.

14. We find no merit in this appeal. The same is, therefore, dismissed. Parties are left to bear their own costs. Trial court's record be sent back.