Delhi High Court
Sikand Standley Enterprises Pvt. ... vs Rahul Parikh on 14 February, 2011
Author: Valmiki J. Mehta
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 97/2011 & 98/2011
% 14h February, 2011
1.RFA NO.97/2011
SIKAND STANDLEY ENTERPRISES PVT. LTD. ...... Appellant
Through: Mr. V.K.Sharma, Adv.
VERSUS
RAHUL PARIKH . ...... Respondent
Through: None
&
2.RFA NO.98/2011
SIKAND STANDLEY ENTERPRISES PVT. LTD. ...... Appellant
Through: Mr. V.K.Sharma, Adv.
VERSUS
FUCON TECHNOLOGIES LTD. ...... Respondent
Through: None
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 these Regular First Appeals under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment
RFA No. 97/2011 & 98/2011 Page 1 of 4
and decree dated 29th November, 2010 whereby the suit of the
respondents/plaintiffs was decreed and by which decree appellant/defendant
was directed to refund the security deposits of Rs.8,00,000/- and
Rs.7,00,000/- along with the interest at 9% per annum simple.
2. The admitted facts are that the appellant/defendant received
amounts from the respondents/plaintiffs towards security deposit. Once the
contract of distributorship between the parties came to an end, the
appellant/defendant was duty-bound to refund the security deposits because
admittedly no loss was proved before the Trial Court entitling the
appellant/defendant to forfeit the security deposits. Also, the MOU dated
28.8.2004 (sic: 29.8.2004) did not provide any specific and minimum amount
of sale which was to be done by the respondents with the appellant's
product, and what was expressed in the MOU was only a desire/expectation
of the appellant qua the respondents/plaintiffs. The Trial Court has also
noted that the appellant failed to prove as to how the goods which were
allegedly ordered by the respondents, but not taken by them, could not be
disposed of by the appellant. There was no other argument before the Trial
Court or this Court seeking forfeiture of the security deposits.
3. On merits therefore the appellant has no case and nor is there
any disputed finding of fact which calls for interference with the impugned
judgment and decree passed by the Trial Court.
4. Learned counsel for the appellant argued two points before this
Court. The first was based upon Para 7 of the impugned judgment whereby
RFA No. 97/2011 & 98/2011 Page 2 of 4
the Trial Court allowed amendment in the title of the suit and the plaintiff
was treated as a sole proprietor instead of the sole proprietary concern, in
whose name the suit was filed. I may note that though the Trial Court has
referred to the decision in the case of Kedarnath Mattulal Vaish & Anr.
Vs. Babloo & Anr. AIR 1976 MP 62 in support of its conclusion, I note that
this issue is now settled by the Supreme Court in its judgment in the case of
Ganesh Trading Co. vs. Moji Ram AIR 1978 Supreme Court 484 in
which case, the Supreme Court allowed the amendment of the suit to correct
the description of the plaintiff from the proprietorship firm to a proprietor
stating that no prejudice at all in such cases is caused to the defendant. I,
therefore do not find that there exists any justifiable reason to find fault with
the action of the Trial Court while deciding issue no. 1 in treating the suit as
having been filed by the sole proprietor instead of sole proprietorship
concern.
5. The second argument which was raised by counsel for the
appellant was that the MOU in question which was relied upon between the
parties was the MOU dated 29.8.2004, but since the exhibit mark was put
though wrongly, on the MOU dated 17.6.2004, Ex.PW1/3, therefore, the Trial
Court in Para 9 could not have relied upon the MOU dated 29.8.2004. I am
once again unable to agree with the contention put forth by learned counsel
for the appellant inasmuch as simply because there is a
clerical/administrative mistake in putting an exhibit mark on a wrong
document, would not mean that the correct document is not exhibited. The
RFA No. 97/2011 & 98/2011 Page 3 of 4
appellant itself had relied upon the MOU dated 29.8.2004 in support of his
case, and which was the document which was sought to be exhibited as
MOU, therefore the Trial Court rightly held that it has treated the MOU dated
29.8.2004 as Ex.PW1/3 instead of MOU dated 17.6.2004 on which the exhibit
mark was wrongly put, and which latter MOU was not relied upon by any of
the parties.
6. In view of the above, I do not find any merit in these appeals
which are therefore dismissed leaving the parties to bear their own costs.
CM No.3055/11 in RFA No.97/11 & CM No.3058/11 in RFA No.98/11
Since the main appeal is disposed of, therefore all pending
applications stand disposed of having become infructuous.
FEBRUARY 14, 2011 VALMIKI J. MEHTA, J.
ak
