Delhi High Court
M/S Smt. Anguri Devi Charitabl vs N.K.Jain on 5 September, 2008
Author: Pradeep Nandrajog
i.5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 419/2004
M/S SMT. ANGURI DEVI CHARITABL ..... Appellant
Through: Mr. Ashwani Bhardwaj, Advocate
versus
N.K.JAIN ..... Respondent
Through: Mr. Nitin S.Tambwekar, Advocate
Mr. B.S.Sai, Advocate
DATE OF DECISION
% 05.09.2008
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
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 appellants have failed to obtain leave to defend
vide impugned order dated 20.4.2007. The result is that a
decree in sum of Rs.4,75,490/- has been passed against the
appellant together with interest @ 24% per annum from the
date of filing of the suit till realization + cost.
3. The claim of the respondent was that the appellant
No.1 has established an engineering college at Gurgaon i.e.
appellant No.2 and for equipping its laboratory where Physics
and Chemistry was to be taught, a purchase order was placed
upon it by the appellant No.2 and that pursuant to the said
purchase order, goods were supplied on different dates vide
bill No.104, 105, 106, 107 and 115. Stating that the total value
of the goods supplied under the bills was Rs.4,47,184/- and
admitting having received as advance payment Rs.1,50,000/- it
was stated that balance amount was due and payable. Further
stating that as per the bills it was entitled to receive interest @
24% per annum, suit aforenoted was filed.
4. Seeking leave to defend, the appellants informed
that after purchase order was placed by them, goods were
supplied by the respondent only vide bill No.105 in sum of
Rs.1,92,471/-. It was stated that the supply was delayed and
was not up to the specificiation. Thus, payment pursuant to
the bill No.105 was disputed. Pertaining to the other 4 bills it
was denied that any delivery was effected.
5. Learned Trial Judge has considered the defence and
in relation to the dispute raised qua bill No.105 has held that
the supplies were admittedly made on 22.5.1998 and since
there was no contemporaneous documents showing that the
goods were rejected, holding that having appropriated the
goods, no triable issue arose as regards the amount claimed
for bill No.105, finding returned is that no triable issue arises
qua said plea.
6. Pertaining to the other bills, learned Trial Judge has
held as under:-
"The plaintiff has placed on record photocopy of
the inauguration card of the defendant institute.
It shows that the infrastructure of the institute
was completed. According to defendant, he sent
notice to plaintiff for not sending the material
within stipulated time. No such notice is on the
file, and hence, all the pleas taken by defendant
appears to be without any basis. If the plaintiff
did not send all the goods to the defendant well
in time, he should have informed plaintiff. There
is nothing from defendant side to that effect.
The defendant has also not disclosed if the
goods/material was managed from other
sources."
7. Learned counsel for the appellant has shown to us
the bills relied upon by the plaintiff. Learned counsel points
out that save and except bill No.105 dated 22.5.1998 in
respect whereof, on the bill itself, acceptance of the goods on
delivery stands noted, on no other bill is a memo of
acceptance recorded.
8. We have questioned learned counsel for the
respondent/plaintiff whether there is any material with the
respondent to show that goods under bill No.104, 106, 107 &
115 were delivered. Learned counsel very fairly concedes that
he has none.
9. The presumptive reasoning of the learned Trial
Judge resulting in a summary judgment is incorrect. As noted
from the reasoning of the learned Trial Judge, merely because
the college has become operational would not mean that a
presumption would arise that the college has received the
goods from the plaintiff.
10. The learned Trial Judge ignored a very vital fact
being the conduct of the respondent to have got acknowledged
on bill No.105 the delivery of the goods by the respondent to
the college and receipt thereof by the college. No such
endorsement being on the other bills, a triable issue would
certainly arise whether the college received the goods under
the other bills. More so for the reason the respondent has no
delivery challan or any other document to evidence delivery.
11. Thus, we allow the appeal and set aside the
impugned order dated 20.4.2002 and as a consequence we set
aside the consequential decree dated 20.4.2002.
12. The application filed by the appellant seeking leave
to defend is allowed.
13. The appellant shall file the written statement on the
date which the learned Trial Judge would notify after revival of
the suit.
14. Parties are directed to appear before the learned
District Judge on 20.10.2008 for further proceedings.
15. No costs.
16. Certified copy of this order be supplied to learned
counsel for the parties on payment of costs.
17. TCR be returned.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
SEPTEMBER 05, 2008
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