Hindustand Lever Ltd. vs Lakshman Pershad Gupta
2011 Latest Caselaw 476 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.260/2000

%                                                    27th January, 2011

HINDUSTAND LEVER LTD.                                   ...... Appellant
                                Through:    Mr. D.K.Malhotra with
                                            Mr. Rajesh Kumar Malhotra,
                                            Advocates

                          VERSUS


LAKSHMAN PERSHAD GUPTA                                   ...... 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.            Challenge by means of this first appeal is to the impugned

judgment      and   decree   dated   15.1.2000    whereby   the   suit    of   the

respondent/plaintiff has been decreed for goods supplied, being skimmed

milk powder, and which were ordered by the appellant inasmuch as the

same was to be used for production of animal feed.

2.            It is not in dispute that the goods in question were in fact

delivered by the respondent to the appellant.         The contention of the

appellant was       that the   goods were    defective   and therefore         the

respondent/plaintiff was not entitled to payment.


RFA No.260/2000                                                          Page 1 of 3
 3.          The Trial Court has rejected the contentions of the appellant

for two reasons.   The first reason is that the report which was relied upon

by the appellant to contend that the goods supplied were defective is

Ex.D1   dated   19th   June,   1987   and   20th   June,   1987   whereas   the

letters/telegrams of the appellant stating that the goods are defective on

the basis of the analysis report are dated 30th May, 1987 and 10th June,

1987 i.e. before the report Ex.D1 dated 19th June, 1987. I do not find any

illegality or perversity with this finding because surely, if the appellant

relies upon an analysis report to show that the goods are defective it must

exist when the letter is sent relying on the said analysis report. In this

case, analysis report, Ex.D1 is admittedly of the date subsequent to the

dates of the letters issued to the respondent by the appellant that the

goods are defective.

4.          The second ground which was urged before the Trial Court by

the appellant, and is also being urged before me, is that once the goods

are defective, the respondents are not entitled to payment and the

respondent should have lifted back the goods.         In this regard, the Trial

Court has held that no doubt Section 43 of the Sales of Goods Act, 1930

provides that the buyer is not bound to return the defective goods to the

seller, however, the said Section makes it clear that this position is only if

it is not otherwise agreed. The Trial Court has referred to the letter of the

appellant itself dated 2.5.1987, Ex.PW1/1, in which it is clearly stated that

the material if found to be defective, the same would be returned by the

appellant to the respondent. I do not also find any illegality or perversity


RFA No.260/2000                                                       Page 2 of 3
 in this finding of the Trial Court. The Trial Court has also noted that the

appellant has used the skimmed milk powder as there is nothing on

record to show that the appellant still has the skimmed milk powder lying

with it or is in a position to return the stock.

5.           Learned counsel for the appellant very strenuously argued

before this Court that in the order placed by the appellant dated 4.5.1987,

exhibited as Ex.PW1/3, there is no clause that the appellant would return

the goods.     I am unable to agree with the argument raised by the

appellant because the letter dated 2.5.1987 and the order dated 4.5.1987,

Ex.PW1/1 and Ex.PW1/3 respectively, form part and parcel of the same

contract and transaction and therefore it is not permissible for the

appellant to argue that it should not be held bound by the terms of its own

letter, Ex.PW-1/1.

6.           In view of the above, there is no merit in the appeal.       The

appeal is therefore dismissed leaving the parties to bear their own costs.

7.           Interim orders are vacated and the decretal amount deposited

in this Court be paid to the respondent on an application being filed.

8.           Trial Court Record be sent back.




JANUARY 27, 2011                                   VALMIKI J. MEHTA, J.

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