Delhi High Court
Sar Agencies vs M/S. Kalinga International on 8 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 46/1997
% 8th February, 2011
SAR AGENCIES ...... Appellant
Through: Mr. K.K. Bhuchar, Advocate.
VERSUS
M/S. KALINGA INTERNATIONAL ...... Respondent
Through: Mr. H.S. Dahiya, Advocate with
Ms. Anita Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this regular first appeal is to the
impugned judgment and decree dated 30.11.1996 whereby the suit of the
respondent/plaintiff for recovery of money with respect to the goods
supplied was decreed. The bills in question by which the respondent
claims to have supplied the goods to the appellant are Ex.PW1/2 dated
25.3.1989 for Rs.8678.77/-, Ex.PW1/3-3A dated 16.3.1989 for Rs. 75,000/-
and Ex.PW1/4 dated 1.8.1989 for Rs.8497/-.
2. The appellant/defendant appeared and contested the suit on
the ground that no materials was received by it from the respondent
RFA No. 46/1997 Page 1 of 4
pertaining to these bills and in fact materials pertaining to these bills were
received by another contractor at site Mr. Niranjan Singh and who in fact
made part payment of Rs.72,263/- with respect to these bills.
3. The only issue before this Court, and which was also the issue
before the trial Court, was whether the appellant received the electrical
goods under the bills exhibited as Ex.PW1/2 to Ex.PW1/4. I may note that
as per the trial Court Record, at the time of exhibiting these bills, there
was objection to the exhibition of these documents as there was no proof
of receipt of two bills by the respondent and on the one on which there is
an acknowledgement, the same was only a photocopy.
4. For fastening liability upon the buyer of goods, it is a sine qua
non for the seller/plaintiff to prove that the goods were in fact received by
the appellant/buyer. A reference to the 3 bills i.e. Ex.PW1/2 to PW1/4
shows that there is no endorsement of receipt on the bills i.e. Ex.PW1/3
and PW1/4. Only on one bill i.e.Ex.PW1/2 there is an endorsement of
receipt of one person called Shivji Singh, however, there is no evidence at
all as to who this person Shivji Singh is and whether at all he was in the
employment of the appellant/defendant. The respondent/plaintiff could
have very well proved this fact that Shivji Singh was an employee of
appellant by showing earlier bills received by Sh.Shivji Singh on behalf of
appellant, if Shivji Singh was the employee of the appellant, however, no
such earlier bills showing endorsement of Shivji Singh have been filed.
Obviously, therefore Shivji Singh was not an employee of the appellant.
The curious aspect, and the admitted fact, is that out of the total value of
RFA No. 46/1997 Page 2 of 4
Rs.92,700/- of these bills, a payment of Rs.72,263/- was made by one Sh.
Niranjan Singh. Quite clearly therefore it was Sh. Niranjan Singh who
received the goods under the subject bills and not the appellant.
5. In my opinion, the impugned judgment and decree is clearly
illegal and perverse because no monetary liability can be fastened upon a
person without first proving that in fact such a person has received the
goods. Onus of proof in this regard was on the respondent/plaintiff to
show that the appellant in fact received the goods. As already stated,
there is no endorsement of receipt on two out of the three invoices and in
fact out of an alleged outstanding amount of Rs.92,700/-, a sum of
Rs.72,263/- has been paid by Sh. Niranjan Singh.
6. The learned counsel for the respondent/plaintiff placed
reliance upon the legal notice dated 17.11.1990, Ex.PW1/5, and argued
that the stand of the appellant qua this notice shows that in fact amount
was due from the appellant. I do not agree. A reference to this notice
Ex.PW1/5 shows that it is a general notice for an amount due against
statement of account and there is no specific reference in this notice to
the subject bills. It is only if there was reference to these three bills in the
subject notice, would the appellant have an opportunity to deny the same.
The appellant, in fact, replied to the legal notice by his reply dated
9.12.1990 Ex.PW1/D1 and in which the appellant took the clear stand that
there were no dues of the appellant to the respondent and all the dues of
the respondent/plaintiff stand paid off. Therefore, the notice sent by the
respondent/plaintiff was a general notice not referring to specific bills and
RFA No. 46/1997 Page 3 of 4
the reply of the appellant/defendant, Ex.PW1/D1 was therefore also a
general reply that there was nothing due. I, therefore, do not agree with
the counsel for the respondent that liability can be fastened upon the
appellant by virtue of Ex.PW1/5.
7. The impugned judgment and decree therefore being clearly
illegal and perverse is accordingly set aside. The suit of the
respondent/plaintiff shall therefore stand dismissed. Since the impugned
judgment and decree is set aside, but since the decree stands executed
and the respondent/plaintiff has received the decretal amount, therefore
the appellant will be entitled to restitution of the amounts as per Section
144 of the Code of Civil Procedure, 1908 in accordance with law. Decree
sheet be prepared. Trial Court record be sent back.
FEBRUARY 08, 2011 VALMIKI J. MEHTA, J.
Ne
