Delhi High Court
M/S Punjab Fibres Ltd. vs M/S Lank Mark Exports & Ors. on 5 December, 2008
Author: Pradeep Nandrajog
i.4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 05th December, 2008
+ RFA 38/2004
M/S PUNJAB FIBRES LTD. ..... Appellant
Through: Ch.Ranjit Singh, Advocate
versus
M/S LANK MARK EXPORTS & ORS. ..... Respondents
Through: Mr.Jagdeep Anand, Adv. for R-2 & 3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R.MIDHA
1. Whether 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?
Pradeep Nandrajog, J. (Oral)
1. The appellant has suffered a dismissal of the suit filed
by it against the respondents.
2. Case of the appellant as pleaded in the plaint was
that defendants 2 and 3 had been placing orders on the plaintiff
for supply of textile yarn with assurance of due payment for said
orders. It was pleaded that defendant No.1 was the beneficiary
of the said orders. Pleading that the appellant was maintaining
a regular account pertaining to the supplies affected and that
Rs.3,16,750/- was outstanding the suit was filed claiming
Rs.5,00,000/- by alleging that pre-suit interest had accumulated
in sum of Rs.2,27,060/- but claim was restricted to
Rs.5,00,000/-.
3. Defendant No.1 chose not to defend the proceedings.
Defendants No.2 and 3 stated that all goods were supplied
directly to defendant No.1 ad they had no concern with the
appellant.
4. At the trial appellant examined two witnesses being
Sh.Dhirinder Dhoval its accountant and N.G.Babu an accounts
officer.
5. Both witnesses stated that the statement of account
was Ex.P-4. PW-2 proved the bills (photocopies) and
consignment notes being Ex.P-5 to Ex.P-19.
6. Dismissing the suit learned Trial Judge has held that
Ex.P-4 was a typed statement of account and that the account
books were not produced. The bills being photocopies were held
as no good evidence.
7. It is urged by learned counsel for the appellant that
no contemporaneous challenge was made when the bills
(photocopies were proved) and hence urges that the bills have
to be looked into.
8. Without being technical, we have considered the bills
in question. The bills are drawn in the name of defendant No.1
but have been forwarded either to defendant No.2 or defendant
No.3.
9. The raising of the bills shows that the bills, though
raised in the name of defendant No.1, were being forwarded to
defendants 2 and 3 probably for the reason said defendants
were acting as the agents of the appellant.
10. There is no proof that defendants 2 and 3 delivered
the goods in question covered by the bills to defendant No.1.
There is no evidence that defendants 2 and 3 in turn handed
over the bills for payment to defendant No.1 when goods were
delivered.
11. Thus, there is no evidence on record to show any
liability viz-a-viz defendant No.1.
12. The witnesses of the appellant and in particular PW-2
stated that there was a verbal agreement between the appellant
and defendants 2 and 3 that they would be given commission on
orders obtained and that defendants 2 and 3 had no say in the
recovery of the payment.
13. The said admission of PW-2 kills the case of the
appellant that defendants 2 and 3 had to make payment
pertaining to the bills.
14. Unfortunately, the appellant is losing the battle
because its counsel at the trial level did not understand what
was to be proved.
15. In the plaint it was stated that defendants 2 and 3
had placed the orders beneficiary whereof was defendant No.1
and that said defendants were liable to pay the money to the
plaintiff.
16. That apart, we find that the alleged statement of
account Ex.P-4 is a typed copy (not a computer generated
record); the original account books were never produced.
17. We find no merit in the appeal.
18. The appeal is dismissed.
19. No costs.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
DECEMBER 05, 2008
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