Delhi High Court
M/S. Sab Electronics Ltd. vs M/S. Balaji Sales Agencies & ... on 7 July, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.27/2002
% 7th July, 2011
M/S. SAB ELECTRONICS LTD. ...... Appellant
Through: Ms. Mansi Chadha, Advocate.
VERSUS
M/S. BALAJI SALES AGENCIES & ANOTHER ...... Respondents
Through: Mr. M.I. Chaudhary, 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 under
Section 96 of Code of Civil Procedure, 1908 (CPC), is to the impugned
judgment and decree dated 9.8.2001 which dismissed the suit for recovery
filed by the appellant/plaintiff on the ground that the suit was not properly
proved to have been instituted.
2. The facts of the case are that the appellant/plaintiff supplied
various torches and batteries to the respondents and on failure of the
respondents to make the payment, legal notices dated 18.1.1995 and
27.3.1995 were issued. In the plaint, it was stated that as per the statement
RFA No.27/02 Page 1
of account upto 31.3.1994, a sum of Rs.73,332.73/- was due from the
defendants. Defendants could not be served in ordinary method and
ultimately were served through publication, however, in spite of the same
they failed to appear and were therefore proceeded ex parte. The
appellant/plaintiff, in the trial Court, proved the resolution entitling Mr. O.P.
Talwar to file the suit as Ex.PW1/1. Statement of account was exhibited as
Ex.PW1/3 and legal notices were exhibited as Ex.PW1/4 and Ex.PW1/6. One
of the reply to the legal notices was exhibited as Ex.PW1/5.
3. In my opinion, the trial Court has committed grave illegality
which has caused prejudice to the appellant/plaintiff. The witness of the
plaintiff clearly deposed that the suit was filed through Mr. O.P. Talwar and
whose signatures were identified. Once this is done, it is not specifically
required that signatures should be marked by particular points. Filing of a
suit on behalf of the company, unless there are inter se disputes between
any groups of management in the company, is only a technical aspect and
objection to the same should not be readily accepted by the Courts, much
less in the absence of any defence from the defendants. In fact, the
Supreme Court in the case of United Bank of India Vs. Naresh Kumar
and Others, AIR 1997 SC 3 has held that once a suit is continued by a
company, and which was a bank in case before the Supreme Court, right till
its conclusion the Supreme Court said that the provision of Order 19 of Code
of Civil Procedure, 1908 (CPC) should be applied and it should be held that
RFA No.27/02 Page 2
suit was validly instituted. Mr. O.P. Talwar was the Senior Manager, Sales
and Administration and therefore he was also the principal officer, as
required under Order 19 CPC. Suit was therefore validly instituted. The trial
Court was clearly unjustified in dismissing the suit on this limited ground. I
have already stated above that the appellant proved on record statement of
account and supported it by the oral evidence of the witnesses. No doubt, a
simple statement of account is not good enough for fastening liability,
however, in terms of Section 34 of the Evidence Act, 1872 once the
statement of account is supported by the oral statement of witnesses,
statement of account can be believed so as to fasten liability.
4. Accordingly, in my opinion, the appellant/plaintiff has proved its
entitlement, and the defendants failed to appear in spite of service, it
appears because they want to avoid their liability for payment. The intention
of the respondents/defendants to unnecessarily delay the payment of the
dues of the appellant/plaintiff also becomes clear from the fact that learned
counsel for the respondents states that till date the respondents have not
given him the Vakalatnama and in spite of repeated instructions have failed
to contact them. It is stated by the counsel that he tried from his regular
phone number to call the respondents but they did not pick up the phone but
when called from another number the phone was picked up. It is stated by
the counsel that he informed the respondents to ensure appearance before
the Court but still they have not given any instructions. Learned counsel for
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the respondents, therefore, in view of the above, is discharged from the
case.
5. In view of the above, the appeal is accepted. Impugned
judgment and decree is set aside. Suit of the plaintiff for recovery of
Rs.1,09,441.28/- is decreed alongwith pendente lite and future interest @ 9%
per annum simple till payment. Parties are left to bear their own costs.
Decree sheet be prepared. Trial Court record be sent back.
JULY 07, 2011 VALMIKI J. MEHTA, J.
Ne
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