M/S Vee Vedionics Pvt. Ltd. And ... vs M/S Rohit Polymers
2009 Latest Caselaw 4505 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                        + RFA No. 197/1997

                                       Date of decision: 06.11.2009

IN THE MATTER OF :
M/S VEE VEDIONICS PVT. LTD. AND ANR.            ..... Appellants
                   Through: Mr. Pawan Kumar Bansal, Advocate

                   versus


M/S ROHIT POLYMERS                                ..... Respondent
                  Through: Mr. Alok Bhachawat, Advocate, Mr.
                  Syed Hasan Isfahani, Advocate, Mr. Jainul
                  Abidin, Advocate and Mr. Udai Singh, Advocate.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment? No.

     2. To be referred to the Reporter or not? No.

     3. Whether the judgment should be
        reported in the Digest? No.


HIMA KOHLI, J. (ORAL)

1. The present appeal arises out of the impugned judgment

and decree dated 27.02.1997 passed by the learned ADJ in a suit for

recovery of Rs.2,09,569.40 paise alongwith interest filed by the

respondent, a proprietorship firm (plaintiff in the court below) against

the appellants (defendants in the court below) towards value of the

goods supplied.

2. The case of the respondent, as set out in the plaint was that

the respondent was dealing in all kinds of plastic raw materials, which

the appellants were purchasing against payment as well as on credit.

The respondent averred that it had been maintaining a regular account

in respect of the said purchases made by the appellants, which

become irregular. As a result, an amount of Rs.1,74,641.20 paise was

stated to be outstanding against the appellants since 04.04.1995. It

was the case of the respondent that despite repeated requests, the

appellants did not release the balance payment and instead, informed

the respondent that they could not make the payment due to liquidity

crisis and assured that the same would be cleared soon. As despite

repeated requests, the respondent did not receive any payment, a

legal notice dated 11.09.1995 was served upon the appellants, both by

Registered AD Post as also under Postal Certificate. However, the

legal notice was neither replied to nor any payment released by the

appellants, thus compelling the respondent to institute the present suit

on 07.02.1996.

3. The aforesaid suit was contested by the appellants, who

filed a written statement wherein, it was stated that Shri Bhanwar Lal

Doshi, proprietor of the respondent firm was also the proprietor of

another firm by the name of M/s D.R. Plastics, which had dealings with

the appellants and was supplying the same material to them. The

appellants averred that an excess payment of Rs.1,15,955/- was made

by them to M/s D.R. Plastics, the sister concern, but the said amount

was liable to be returned as the material supplied was inferior. The

excess amount was sought to be adjusted by the appellants in the

account of the respondent herein. The receipt of the legal notice was

denied by the appellants and it was stated that the amount liable to be

adjusted from the account of M/s D.R. Plastics, the sister concern of

the respondent firm, may be transferred to the account of the

respondent and that after adjusting the said amount, nothing would be

due or payable to the respondent. An objection with regard to

territorial jurisdiction of the Delhi court to entertain the suit filed by

the respondent was also raised on behalf of the appellants.

4. After the pleadings were completed, the following two

issues were framed by the trial court:-

"1. Whether an excess payment of Rs.1,15,955/- has been made by the defendants to M/s D.R. Plastics, another firm of Sh. Bhanwar Lal Jain and whether the alleged payment is liable to be adjusted for paying the dues of this case by the defendants to the plaintiff? OPD.

2. Relief."

5. Evidence was led by both the parties. The

respondent/plaintiff produced Shri Bhanwar Lal Doshi, proprietor of the

firm as PW1 and the appellants produced Shri J.S. Madan, Addl.

Director of appellant No. 1 as DW1. After perusing the pleadings,

documents placed on the record and examining the evidence of the

parties, the trial court answered the issue No.1 against the appellants

and held that they had failed to discharge the onus placed on them by

proving that an excess sum of Rs.1,15,955/- had been paid by them to

M/s D.R. Plastics, another firm of Sh. Bhanwar Lal Doshi or that the

said payments could be adjusted by setting them off against the

outstanding dues of the respondent in the present case. As a result,

the suit of the respondent was decreed against the appellants for a

sum of Rs.2,09,569.40 paise with costs & interest payable @ 24% per

annum from the date of filing of the suit till realization of the decretal

amount. Aggrieved by the said judgment and decree, the appellants

preferred the present appeal.

6. Counsel for the appellants states at the outset that though

a ground has been taken in the appeal that the trial court ought to

have framed an issue with regard to territorial jurisdiction of the court

to try and entertain the suit instituted by the respondent, however the

said objection does not survive for the reason that at the time of

admission of the appeal, on 07.08.1997, an application filed by the

appellants seeking permission to lead additional evidence in the appeal

on the question of jurisdiction, was rejected by the Division Bench with

the observation that no such issue was claimed or got framed and as

such, the point of jurisdiction could not be raised in appeal in view of

Section 21 of the CPC. It is pertinent to note that as the present

appeal was filed against a money decree, while admitting the appeal

vide order dated 7.8.1997, on the stay application accompanying the

appeal, the Division Bench stayed the execution of the decree in view

of the statement made on behalf of the appellants that the decretal

amount would be deposited in the trial court within four weeks.

Permission was also granted to the decree holder to recover the

money deposited on furnishing security for restitution during the

pendency of the appeal. However, the decretal amount was not

deposited by the appellants in the trial court. As a result, vide order

dated 12.9.1997, the ex-parte interim order dated 7.8.1997 was

vacated. Counsel for the respondent states that despite initiating

execution proceedings in respect of money decree in the Court at

Bhopal, the appellants have evaded paying the amount to the

respondent till date.

7. Counsel for the appellants submits that apart from the issue

of jurisdiction which had been turned down earlier as noted above, the

impugned judgment is erroneous inasmuch as the learned ADJ erred in

arriving at the conclusion that the appellants were unable to establish

that the material supplied by the sister concern of the respondent was

defective. It is urged that the trial court did not appreciate the fact

that they had taken a bonafide stand that certain amounts were

payable by the sister concern of the respondent firm, M/s D.R.Plastics

which were liable to be adjusted from the accounts of the respondent

herein while settling the account, both the firms being proprietorship

firms of one and the same person, namely, Mr. Bhanwar Lal Doshi.

8. It is relevant to note that M/s D.R. Plastics had instituted a

separate suit for recovery of a sum of Rs.1,56,519/- against the

appellants, which was decreed in its favour vide judgment dated

27.02.1997. The said judgment has been assailed by the appellants by

preferring a separate appeal, registered as RFA No. 193/1997. The

aforesaid appeal is listed at item No. 20 in today's cause list. After

hearing arguments in the said appeal, the same has been dismissed by

a separate order and the impugned judgment dated 27.2.1997 has

been upheld.

9. Coming to the case in hand, I have heard the counsels for

the parties. I have also perused the impugned judgment, the

pleadings, documents placed on the record and the deposition of the

witnesses. The trial court examined the testimony of Mr. J.S. Madan,

DW1, who deposed on behalf of the appellants. DW-1 stated that the

proprietor of the respondent firm and M/s D.R. Plastics was common

and that the material supplied by M/s D.R. Plastics was found to be

defective whereupon, the appellants were assured that the value of

the rejected material would be adjusted from the payments to be

made by the appellants to the respondent herein for the supplies

made. However, he claimed that the respondent did not abide by the

assurance given to the appellants.

10. After taking into consideration the stand of the appellants,

the trial court held that the appellants had failed to prove that any

excess amount had been paid by them to M/s D.R. Plastics or the said

payments could be adjusted against the outstanding dues of the

respondent in the suit. In his cross-examination, DW1 admitted that

whatever material had been supplied by the respondent, was correct

and in accordance with the orders placed upon it. He also admitted

that no letter was written by the appellants to the respondent while

dispatching the last cheque issued on 03.04.1995. There are

admissions on behalf of the appellants, accepting the fact that the

billing in respect of respondent firm and M/s D.R. Plastics was

separately prepared and payments were also separately made in

respect of the goods supplied by the respondent firm and M/s D.R.

Plastics. There exist obvious contradictions in the stand of the

appellants, as noticed in the impugned judgment. While in para 5 of

the written statement, the appellants denied the fact that any legal

notice was served upon them, in his cross-examination, DW-1

admitted that the notice dated 11.09.1995 (Ex.DW1/P2) was received

by the appellants in September or October, 1995. DW1 also admitted

the statement of account filed by the respondent on the record

(Ex.DW1/P1).

11. Having regard to the aforesaid categorical admissions on

behalf of the appellants and the documents placed on the record by

the respondent, this Court concurs with the findings of the trial court

that the appellants failed to prove that any excess payment of

Rs.1,15,955/- had been made by them to M/s D.R. Plastics. As

separate accounts were maintained in respect of goods supplied by the

respondent herein and M/s D.R. Plastics, the appellants could not claim

adjustment of the alleged payments from the respondent against the

outstanding payment in respect of the accounts of the appellants

maintained by it in respect of the transactions pertaining to M/s D.R.

Plastics. As noted above, by a separate judgment passed today, RFA

No.193/1997 filed by the appellants against M/s D.R. Plastics, assailing

the judgment dated 27.2.1997 has been dismissed by holding that the

impugned judgment and decree dated 27.02.1997 passed by the trial

court in a suit for recovery of Rs.1,56,519/- filed by M/s D.R. Plastics

against the appellants, did not require any interference.

12. In view of the aforesaid facts and circumstances and the

categorical findings returned by the trial court against the appellants

with which this Court finds no reason to differ, the impugned judgment

dated 27.02.1997 is upheld. The present appeal is dismissed with

costs of Rs.10,000/-. The trial court record be released forthwith.

                                                        (HIMA KOHLI)
NOVEMBER 06, 2009                                         JUDGE
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