M/S Ascent Constructions Pvt. ... vs M/S Standard Sales Agencies
2010 Latest Caselaw 4566 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment : 28.9.2010


+R.S.A. No.179/2010 & CM No.17580-17582/2010


M/S ASCENT CONSTRUCTIONS PVT. LTD.
                                               ...........Appellant
                   Through:    Mr.I.A.Rahmani, Advocate for the
                               appellant.


                   Versus

M/S STANDARD SALES AGENCIES                      ..........Respondent
             Through: Nemo.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                           Yes


INDERMEET KAUR, J.(Oral)

CM No.17581/2010 (for exemption)

       Allowed subject to just exceptions.

R.S.A. No.179/2010 & CM No.17580/2010 (for stay) &
17582/2010 (for direction u/S 151 CPC)

1.     This appeal has impugned the judgment and decree dated

18.8.2010 which had endorsed the finding of the Trial Judge dated

31.7.2008 decreeing the suit of the plaintiff in the sum of

Rs.74,235/- with costs along with interest @ 12% per annum on an

amount of Rs.2,07,265/- from 20.4.2005 till realization on the

principal amount of Rs.74,235/-.

2.     The impugned judgment had modified the interest quotient.

The modified decree had entitled the plaintiff to recover a sum of
 RSA No.179/2010                                           Page 1 of 5
 Rs.74,235/- with costs; interest @ 12% per annum on the amount

of Rs.2,07,265/- was awarded w.e.f. 20.4.2005 till 19.12.2007

thereafter interest @ 12% per annum on the amount of Rs.74,235/-

w.e.f. 20.12.2007 till realization had been awarded.

3.      The substantial question of law had been formulated on page

4 and 5 of the memo of appeal. They border upon the statement of

account filed by the defendant and the burden of proof having been

illegally shifted upon the defendant.

4.       The trial Judge while decreeing the suit had placed reliance

upon the 58 invoices along with 58 delivery notes which have been

proved by the plaintiff as Ex.PW-1/1 to Ex.PW-1/58 and Ex.PW-1/1A

to Ex.PW-1/58A. It had also recorded that the written statement

revealed that the transaction between the parties had in fact not

been denied; it was also not the case of the defendant that the

goods had not been delivered to him; Trial Court had noted that

there was no evidence to justify a conclusion that any of the bills

are inaccurate or that delivery was not made in relation to

them.     In fact the transactions and the bills themselves were not

disputed.

5.      Contention of the learned counsel for the appellant before

this Court is that statement of account Ex.DW-1/A had not been

considered in the correct perspective.

6.      The onus to prove both the issues was on the plaintiff,

however, in view of the disputed statement of account set up by the

defendant Ex.DW-1/A the Trial Court had noted that in a situation

as in the instant case where the defendant is unable to prove the

inaccuracy of the bills or their non-delivery, the onus lay upon the

defendant to justify that the total bill is of Rs.6,27,260/- and not of

 RSA No.179/2010                                             Page 2 of 5
 Rs.7,01,495/-.

7.     In this context the relevant extract of the judgment of the

Trial Judge reads as follows:

      "11. It has been noted earlier that the defendant is unable to prove
      either the inaccuracy of the bills or the non delivery of goods. In
      such a situation, the onus shall lie upon the defendant to justify
      the total bill amount to be Rs.6,27,260/- and not Rs.7,01,495/-. It
      is logical to assume that were the defendant proceeding on the
      basis of a figure of Rs.6,27,260/-, it would have mentioned the
      same in its reply to the legal notice of the plaintiff dated 02.5.06,
      Ex.PW-1/67, in which the plaintiff had clearly raised a demand of
      amount Rs.2,14,335/-. The defendant would have been expected
      to point out the difference of Rs.74,235/- in its reply dated
      13/05/06 Ex.PW1/D1. This was, however, not done. This omission
      of the defendant clearly establishes that the defendant did not
      believe Rs.74,235/- to be difference in the calculations done by the
      parties. It was not sufficient for the defendant to allege a huge
      different in the account through this notice without alluding to the
      differential amount in any manner.
      12. The falsehood of the defence of the defendant is also revealed
      from the fact that despite alleging difference in the bills amount
      qua several bills mentioned in Ex.DW1/A, the defendant issued a
      „C‟ Form in relation to seven of these disputed bills. The plaintiff
      brought on record the „C‟ Form and also the details of the bills as
      Ex. PW1/D2 and Ex. PW1/D3 respectively. If indeed the defendant
      was in disagreement with the bill amount claimed by the plaintiff,
      there was no reason for it to issue a ‟C‟ Form for the amount
      claimed by the plaintiff.      Pertinently, these exhibits were not
      challenged during the cross-examination of PW1 and are credible
      documents.    Dw1 was specially asked whether a „C‟ Form had
      been issued by the defendant with respect to certain bills
      including bill No.162 at serial lNo.12 of Ex.PW1/D3 for an amount
      of Rs.35,225/-. DW1 replied in the affirmative.
      13. The difference of Rs.74,235/- asserted by the defendant
      remains wholly unsubstantiated and is in fact exposed as a
      concoction in view of the „C‟ Form issued by it in relation to the
      disputed bills. DW1 did offer an explanation to the effect that it is
      not necessary that „C‟ Form be issued only after the satisfaction
      regarding the receipt of goods. This explanation is unsatisfactory
      for the reason that this fact too was not incorporated in the reply
      of the defendant Ex. DW1/D1 dated 13/05/06 to the legal notice of
      the plaintiff dated 02.5.06.
      14. The conclusion is inevitable. The calculation of the bill amount
 RSA No.179/2010                                                       Page 3 of 5
       by the plaintiff amounting to Rs.7,01,495/- is the correct version.
      The decision of a civil dispute rests on the balance of probabilities.
      The totality of the evidence tilts the balance in favour of the claim
      of the plaintiff.
      15. The next aspect requiring consideration is the actual payment
      made by the defendant. The ld. Counsel for the defendant states
      that the payment made amounts to Rs.4,94,230/- as represented in
      the details of payment shown in Ex. DW1/A. In its replication, the
      plaintiff admitted having received an amount of Rs.4,77,000/- but
      denied the payment of Rs.17,230/-. The defendant has supported
      the payment with a statement of account. The onus for disproving
      any payment would, therefore, lie on the plaintiff.     The plaintiff
      has, however, not led any evidence to establish that the payments
      mentioned at serial Nos.8,10 and 19 in Ex.DW1/A, made to the
      persons names, were in fact never paid. Two persons by the name
      of Ram Janam and Nozibur Rahman 9 serial Nos.8 & 10
      respectively) have been referred to in this document. Nor did the
      plaintiff prove in any manner that the debit note for an amount of
      Rs.6,480/- at serial No.19, was not paid to the plaintiff.    In this
      view, the only conclusion which must be drawn is that the
      defendant did make a total payment of Rs.4,94,230/-.
      16.     It has already been held that the correct total amount of all
      the bills is Rs.7,01,495/-. The defendant having made a payment
      of Rs.4,94,230/- is, therefore, liable to pay the remaining amount
      i.e. Rs.2,07,265/-.   An amount of Rs.1,33,030/- has already been
      paid to the plaintiff by the defendant after the institution of the
      present suit.       Resultantly, the defendant must now pay the
      difference of Rs.2,07,265/- and Rs.1,33,030/- i.e. Rs.74,235/-."


8.    The impugned judgment had also endorsed this finding; but

to the limited extent interest was modified.

9.    The substantial questions of law sought to be raised in the

memo of appeal are all fact based; infringing upon the statement of

account set up by the defendant which had been considered in an

indepth detail by both the Courts below. The onus to discharge the

burden of proof on both the issues as already aforenoted was upon

the plaintiff; the bills and invoices were not disputed. The disputed

statement of account set up by the defendant and his claim that a

lesser amount was due and not the amount claimed by the plaintiff

 RSA No.179/2010                                                         Page 4 of 5
 had led the Court to hold that this aspect was to be proved by the

defendant which finding calls for no interference.

10.   None of the arguments urged before this Court or the

substantial questions of law as formulated in the body of the appeal

raises any question of law much less any substantial question of

law. This Court is not clothed with the jurisdiction to decide any

other aspect except a substantial question of law and there being

no such substantial question raised in this appeal, the appeal as

also pending applications are dismissed in limine.

11.   File be consigned to record room.



                                          INDERMEET KAUR, J.

SEPTEMBER 28, 2010 nandan