Delhi High Court
Rajesh Saigal vs Vimal Mehra on 5 November, 2008
Author: Pradeep Nandrajog
i.7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order : 05.11.2008
+ RFA 185/2008
RAJESH SAIGAL ..... Appellant
Through: Mr. Samdarshi Sanjay, Advocate
versus
VIMAL MEHRA ..... Respondent
Through: Ms. Jyoti Singh, Advocate with
Mr. Ankur Chhibber and Mr. Aditya
Chhibber, Advocates
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 judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. Heard learned counsel for the parties.
2. The appellant who was the defendant has suffered a
decree in sum of Rs.5,00,000/- together with interest @ 8% per
annum from the date of filing of the suit till realization.
3. Respondent's suit has been decreed. Counter claim
filed by the appellant has been dismissed.
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4. The suit of the respondent sought recovery of
Rs.5,00,000/- on the plea that the appellant approached the
respondent stating that he had export orders but could not
execute the same due to paucity of funds and told the
respondent that if the respondent paid some money to him to
manufacture the goods, the same could be exported through the
firm of the respondent and that in this manner both parties
would gain, for the reason, the respondent would not only make
some profits on the export but even earn duty draw back under
a duty draw back scheme of the Government. That accordingly
on said assurance, the respondent advanced a sum of
Rs.5,00,000/- to the appellant on 7.6.2004. It was stated in the
plaint that the appellant did not manufacture the goods but
stated that he had another export order for which he required
Rs.2,00,000/-. It is pleaded that the respondent thought that if
some more money could be given to the appellant he would
execute both export orders and hence on 17.11.2004 gave
another 2,00,000/- by means of cheque to the appellant. That
the appellant supplied the goods pertaining to the second order
and hence Rs.2,00,000/- got adjusted. Rs.4,00,000/- was
advanced by means of two cheques each in sum of
Rs.2,00,000/- on 23.11.2004 and 2.12.2004 which amount was
stated to be returned. It was further pleaded that without
executing the first order the appellant desired further money
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and the respondent advanced more money hoping that with
additional funds the appellant would be able to execute the first
order and therefore the respondent advanced a further sum of
Rs.3,50,000/- on 11.1.2005. Pleading that the export order was
not executed the suit was filed, but for unexplainable reasons
prayer made in the suit was to pass a decree in sum of
Rs.5,00,000/-.
5. In the written statement the appellant did not dispute
having received Rs.5,00,000/-, Rs.2,00,000/-, Rs.4,00,000/- (by
means of two cheques each in sum of Rs.2,00,000/-) and
Rs.3,50,000/- from the respondent. He also did not deny having
supplied the goods pursuant to the cheque received on
17.11.2004. He also admitted having returned Rs.4,00,000/-
received by means of two cheques on 23.11.2004 and
2.12.2004.
6. The defence taken was that the appellant had
manufactured the requisite goods which were not lifted by the
respondent. Thus, right of the respondent to sue for recovery
was denied. For the stated loss caused to him on account of the
respondent not lifting the consignment the counter claim was
filed in sum of Rs.3,75,200/-.
7. Needless to state on the pleadings of the parties the
material issue as far as the plaint was concerned was whether
the plaintiff is entitled to the amount claimed. Pertaining to the
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counter claim the only material issue was whether the appellant
is entitled to the amount claimed in the counter claim.
8. Obviously, the claim and the counter claim had to be
decided hand in hand.
9. We note that the appellant has not filed any appeal
pertaining to the findings against him which has resulted in the
dismissal of the counter claim. We note that reasons for
decreeing the suit and dismissing the counter claim are same.
10. If that be so, on said ground alone the instant appeal
would require to be dismissed as barred by res-judicata.
11. But we intend to deal with the merits of the matter as
well.
12. From the defence raised by the appellant it is
apparent that to non-suit the plaintiff and to succeed in the
counter claim the defence had to be established i.e. that the
appellant manufactured the good which had to be exported and
that the respondent did not lift the consignment.
13. The appellant had led some evidence to establish
having procured raw material. But what has been fatal to the
case of the appellant is the fact, as held by the learned Trial
Judge, that there is no evidence on record to show that the
appellant ever intimated the respondent having fabricated the
export consignment requiring the respondent to take possession
thereof.
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14. We have gone through the evidence recorded before
the learned Trial Judge as certified copies thereof have been
filed along with the appeal.
15. The only material on record is the testimony of the
appellant wherein he stated as under:-
"17. I had got ready the entire consignment as
per the instructions of the plaintiff. The plaintiff had also
been informed accordingly to lift the consignment.
However, the plaintiff did not come forward to lift the
consignment."
16. Suffice would it be to state that the learned Trial
Judge has held that the oral statement by the appellant that he
had got ready the entire consignment and had informed the
respondent to lift the same is unsupported by any
contemporaneous conduct. No document, no notice or a
communication has been proved.
17. We concur with the reasoning of the learned Trial
Judge. A bald statement by the appellant in the witness box
that he had got ready the entire consignment and had informed
the respondent to lift the same is neither here nor there. No
particulars of the date, the more by which the communication
was sent, the time and place thereof; none have been stated.
18. We note that the respondent denied having received
any intimation from the appellant that the consignment was
ready and hence should be lifted.
19. We find no infirmity with the view taken by the
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learned Trial Judge.
20. We find no merits in the appeal.
21. The appeal is dismissed.
22. Cost shall follow in favour of the respondent and
against the appellant.
23. Learned counsel for the respondent states that a sum
of Rs.5,00,000/- has been deposited by the appellant when RFA
No.108/2007 was disposed of on 22.9.2007 when a conditional
leave to defend was granted to the appellant. Since the suit
filed by the respondent has been decreed and the appeal has
been dismissed,. we direct the Registry to pay over the said
amount lying in deposit in RFA No.185/2008 with accrued
interest thereon to the respondent by tendering the cheque
drawn in favour of the respondent to the counsel on record for
the respondent.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
NOVEMBER 05, 2008
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