M/S Thirani Chemicals Ltd. vs M/S Shree Ram Plast & Anr.
2009 Latest Caselaw 4128 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ RFA No. 13/2000 & CM No.58/2000(u/ O 41 Rule 23 and 27 CPC)


                                          Date of decision : 13.10.2009

IN THE MATTER OF :
M/S THIRANI CHEMICALS LTD.                           ..... Appellant
                   Through Mr.Sunil Goyal, Mr.D.P.Kaushik and
                   Ms.Kavitha K.T. Advocates

                   versus


M/S SHREE RAM PLAST & ANR.                                  ..... Respondents
                    Through Nemo


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. By way of the present appeal, the appellant assails an ex-parte

judgment dated 4.12.1999 whereunder a suit instituted by the appellant

(plaintiff in the court below) for recovery of a sum of Rs.2,28,736/- against

the respondents (defendants in the court below) was dismissed on the

ground that the appellant/plaintiff had failed to lead any evidence in support

of its case or to prove that the goods had been sold and supplied to the

respondents/defendants.

2. In a nutshell, the facts of the case are that the appellant/plaintiff

was engaged in the business of manufacture and trading of various grades

of Calcium Carbonate. The respondent No 2., partner of the respondent

No.1 firm approached the appellant/plaintiff for purchase of Calcium

Carbonate, which as per the appellant/plaintiff, was duly supplied to them

from time to time. It is the case of the appellant/plaintiff that an open,

current, mutual and reciprocal account was maintained by the

respondents/defendants with the appellant/plaintiff and that as per the

books of account maintained by the latter as on 26.4.1995, a sum of Rs.

1,62,760/- was due and payable by the respondents to the appellant. It was

averred in the plaint that despite repeated reminders, the

respondents/defendants failed to clear the outstanding dues and further, a

cheque dated 9.9.1993, for a sum of Rs.30,000/- issued by the

respondents/defendants in favour of the appellant/plaintiff when presented

for realization, got dishonoured. On 26.4.1995, the appellant/plaintiff issued

a legal notice to the respondents/defendants. It is the case of the

appellant/plaintiff that pursuant thereto, the respondents/defendants agreed

to pay a sum of Rs.10,000/- per month to liquidate the outstanding dues

and out of Rs.1,62,760/-, the appellant/plaintiff even received Rs.45,000/-

from the respondents/defendants thereafter from time to time. As the

respondents failed to clear the entire outstanding dues, the appellant sent

yet another legal notice dated 19.11.1998, calling the

respondents/defendants to clear the balance outstanding amount of

Rs.1,25,960/-. The respondents however failed to clear the outstanding

amount. As a result, the appellant was compelled to institute the aforesaid

suit on 24.3.1999, for recovery of the outstanding amount, along with

interest claimed @ 21% p.a.

3. Summons in the suit were issued by the Trial Court to the

respondents/defendants, who did not appear despite service and were

proceeded against ex-parte on 11.5.1999 and 29.10.1999. Thereafter, the

case was posted for recording of the appellant/plaintiff's ex-parte evidence.

The sole witness produced by the appellant/plaintiff was Mr.Anil Kumar

Aggarwal, the authorized representative of the appellant/plaintiff (PW-1).

The Trial Court examined the deposition of the aforesaid witness and the

documents placed on the record and arrived at the conclusion that there was

nothing placed on record by the appellant/plaintiff to show that the goods

mentioned by it, were actually delivered to the respondents/defendants.

Hence it was concluded that the sale and delivery of the goods to the

respondents/defendants having not been proved on record and the

statement of accounts of the appellant/plaintiff not being sufficient, the suit

could not be decreed against the respondents/defendants. Aggrieved by the

aforesaid judgment dated 04.12.1999, the appellant has preferred the

present appeal. The appeal was admitted vide order dated 14.3.2000 and

notices were issued to the respondents. As per the order 18.7.2000, though

service was complete, none appeared for the respondents. Same is the

position even today.

4. Counsel for the appellant submits that along with the present

appeal, an application, registered as CM No.58/2000 has been filed under

Order 41 Rule 23 & 27 of the Code of Civil Procedure, praying inter alia for

remanding the matter to the Trial Court for permission to lead additional

evidence to establish the fact that the goods in question were actually sold

and delivered to the respondents/defendants. In this regard, he draws the

attention of this Court to certain original documents, filed in the Trial Court

under an index dated 24.3.1999, which include certain invoices and delivery

challans for the period 1993-94. It is stated by the counsel for the

appellant/plaintiff that though the aforesaid original documents were duly

filed along with the list of documents, the same were not got exhibited

inadvertently and hence were not taken note of by the learned ADJ while

passing the impugned judgment. This Court has examined the Trial Court

records. Perusal of the documents filed by the appellant in the suit

proceedings bears out the submission made on behalf of the appellant that

certain documents including invoices and delivery challans bearing the truck

numbers filed in original under index dated 24.03.1999, were not adverted

to by PW-1, in the course of his deposition, as recorded on 05.11.1999 and

hence, escaped being exhibited.

5. Having regard to the facts and circumstances of the present case

and keeping in view the fact that the relevant original documents are already

on the record of the Trial Court, though the same were not pointed out by

the witness of the appellant/plaintiff in the course of his deposition, it is

deemed appropriate to allow the application of the appellant/plaintiff for

permission to remand the matter to the Trial Court to enable it to lead

additional evidence on the basis of the pleadings and documents already on

the record.

6. The appeal is accordingly allowed. The impugned judgment

dated 4.12.1999 is set aside. The appellant is directed to appear before the

District Judge on 12.11.2009 for fixing an actual date of hearing before the

concerned court. The Registry is directed to remit the Trial Court records to

the District Court forthwith, for further proceedings.

                                                           (HIMA KOHLI)
OCTOBER       13, 2009                                       JUDGE
mk