M/S Ushak Kaal Advertising (P) ... vs Shri K.L. Shroff And Another
2011 Latest Caselaw 382 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.151/2000

%                                                    21st January, 2011

M/S USHAK KAAL ADVERTISING (P) LTD.               ...... Appellant
                         Through:           Mr. Sunil Bagai, Advocate.


                          VERSUS


SHRI K.L. SHROFF AND ANOTHER                       ...... Respondent
                          Through:          Mr. J.S.Bakshi, 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 First Appeal under Section 96 of

the Code of Civil Procedure, 1908 is to the impugned judgment and decree

dated 19.1.2000 whereby the suit of respondent/plaintiff for recovery has

been decreed along with interest on account of non-payment by the

appellant of the bills of the respondent/plaintiff pertaining to printing jobs

which were done by the respondent/plaintiff for the appellant/defendant.

2.            Before this Court, learned counsel for the appellant argued that

the appellant was not responsible for any delay in payment and the delay

RFA No.151/2000                                                         Page 1 of 3
 caused in making the payment was on account of the respondent/plaintiff not

returning the positives.   He has argued that since the respondent/plaintiff

was thus guilty of breach of contract he was not entitled to any interest.

3.          This aspect of the matter has been dealt with by the Trial court in

the following words:

            "It is argued by the Ld.Counsel for the defendant that the
            plaintiff did not return the positives worth Rs.7,000/- to the
            defendant as per oral agreement between the parties and
            relied upon a judgment of the Hon'ble Supreme Court in
            Tax Sem Singh vs. Sukhmender Singh (1998) 3 SCC 471
            that there can be equally binding contract between the
            parties on the basis of oral agreement unless the law
            requires the agreement to be in writing. However, the
            defendant has not pleaded in the written statement that
            there has been an oral agreement between the parties to
            return the positives to the defendant on completion of the
            job done. In its written statement, the defendant has only
            pleaded that they have given a payments schedule in their
            fax letter dated 19.3.97 and the defendant has not given
            date of handing over the positives to them. Rather DW-1
            admitted in cross-examination that he had neither verbally
            nor in writing demanded the positives. Even in the letter
            dated 4.12.96 Ex.PW1/115, fax message dated 20.9.97
            Ex.PW1/114 and last letter dated 1.6.98 Ex.PW1/19, the
            defendant did not demand the positives or cost thereof
            from the plaintiff. The value of the positives has not been
            pleaded by the defendant in the written statement but DW-
            1 deposed the same as Rs.7,000/-. But this deposition of
            DW-1is beyond pleadings and cannot be looked into. The
            defendant has neither claimed set off of the value of the
            positives nor filed counter claim against the plaintiff. So,
            when there is neither pleading on behalf of the defendant
            about the alleged oral agreement for return of positives nor
            claim by way of set off or counter claim, the admitted
            amount of Rs.69,530/- cannot be reduced by R s.7,000/-.
            The Ld. Counsel for the defendant relied upon a judgment
            of hon'ble Himachal Pradesh High Court Himachal Fruit
            Grower Co-operative Market and Processing Society Ltd. vs.
            Upper India Food Preservers and Processors AIIIIR 1984
RFA No.151/2000                                                     Page 2 of 3
             H.P.18 and pleaded that when there is breach on the part
            of the plaintiff and not on the part of the defendant, the
            plaintiff is not entitled to any damages or interest. But the
            defendant has failed to prove any oral agreement between
            the parties regarding return of positives by the plaintiff to
            the defendant and hence, it cannot be said that the plaintiff
            was at fault."

4.          I do not find any error whatsoever in the findings and conclusions

of the Trial Court. The Trial Court has correctly observed that neither in the

written statement there was any mention of any agreement to return the

positives and nor was the value of such positives mentioned. The Trial Court

has also referred to the last letter dated 1.6.98 being Ex.PW1/19 in which the

appellant/defendant did not demand the positives of the cost thereof from

the respondents/plaintiffs.

5.          In view of the above, I do not find any error in the impugned

judgment and decree. The appeal is therefore dismissed, leaving the parties

to bear their own costs.




JANUARY 21, 2011                                VALMIKI J. MEHTA, J.

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