M/S. U.P. State Textile ... vs Shri Naresh Chander
2011 Latest Caselaw 1323 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No.258/1997


%                                                 7th March, 2011

M/S. U.P. STATE TEXTILE CORPORATION LIMITED       ...... Appellant
                       Through: Mr. Rakesh Agarwal with
                                Mr. Pulkit Agarwal, Advocates

                          VERSUS


SHRI NARESH CHANDER                                   ...... Respondent
                          Through:    Mr. Sharat Kumar, 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 the Code of Civil Procedure, 1908 is to the impugned judgment

and decree dated 29.5.1997 whereby the suit of the respondent/plaintiff for

recovery of Rs.44,000/- was decreed. Decree was passed for the claim with

respect to payment due for supply of jute cloth by the respondent/plaintiff to

the appellant/defendant, a state Government Undertaking.



RFA No.258/1997                                                   Page 1 of 5
 2.            The case of the respondent/plaintiff in the Trial Court was that

the material was supplied under Bill nos.718, 735 and 806 dated 1.1.83,

27.1.83 and 17.4.83 for Rs.5,150/-, Rs.17,110/- and Rs.13,000/- respectively.

It   was    claimed   that     the     consignment   was      duly   received   by   the

appellant/defendant and since payment was not made, the suit came to be

filed.


3.            The appellant/defendant appeared and contested the suit on the

ground that it had no dealing with the respondent/plaintiff and its dealing

was with only one M/s. Anuradha Sales Corporation. The appellant/defendant

claimed that it never placed any purchase order with the respondent/plaintiff

and      therefore    no     written    purchase     orders    were    filed    by   the

respondent/plaintiff. The appellant/defendant stated that it had no privity of

contract with the respondent/plaintiff, and the appellant/defendant had

already made payment with respect to the material received to M/s.

Anuradha Sales Corporation.


4.            The Trial Court after the pleadings were complete, framed the

following issues:-


           "1.Whether the Delhi Court has territorial jurisdiction to trial
              the suit? OPP.

           2. Whether the goods supplied by the plaintiff of plaintiff to
              the defendant were on behalf of Anuradha Sales
              Corporation as alleged? OPP.

           3. Whether the plaintiff is entitled for the interest and if so
              what rate and what period?

RFA No.258/1997                                                          Page 2 of 5
          4. Whether defendant had made the payment to Anuradha
            Sales Corporation if so its effect? OPP.

         5. The plaintiff has examined one witness and the defendant
            has examined two witnesses in suit of its case."
5.          The only issue, which was the real issue before the Trial Court

and which issue was also argued before me, was, whether the goods which

were received by the appellant/defendant were received by it on account of

orders placed by the appellant/defendant with M/s. Anuradha Sales

Corporation or did the respondent/plaintiff supply the goods independently to

the appellant/defendant? Admittedly, the respondent/plaintiff did not file on

record the alleged bills/invoices under which the goods were supplied to the

appellant/defendant. The respondent/plaintiff also did not file on record any

purchase order of the appellant/defendant with respect to the goods

supplied. The witness who appeared on behalf of the appellant/defendant,

and which already stated above is a State Government Undertaking, brought

its ledgers in the Court which showed that no account was maintained by it

of the respondent/plaintiff and the only account maintained was of M/s.

Anuradha Sales Corporation. The witness also deposed that no oral orders

were ever placed. I note that the respondent/plaintiff in the Trial court, was

directed to file copies of the pleadings with respect to a litigation pending

between the respondent/plaintiff and M/s Anuradha Sales Corporation,

however, in spite of directions of the Court, such pleadings were not filed.


6.          The Trial Court has decreed the suit on the ground that the

appellant/defendant had issued a Sales Tax/ST form in favour of the
RFA No.258/1997                                                   Page 3 of 5
 respondent/plaintiff and which showed that the contract was with the

respondent/plaintiff and not with M/s. Anuradha Sales Corporation.        The

stand of the appellant/defendant in the Trial Court was that the form was

issued blank, and which has been got filled by the respondent/plaintiff in its

own name. In fact, along with the appeal, the appellant/defendant has filed

an application for bringing on record additional evidence under Order 41

Rule 27 CPC, being CM No.1218/1997, accompanied with the original of the

counter-foils of the ST forms with respect to the subject transaction and

which show that the said forms were blank.


7.           In my opinion, the impugned judgment and decree is illegal and

perverse and therefore is liable to be set aside.    The respondent/plaintiff

failed to prove any invoices on record issued to the appellant/defendant.

Respondent/plaintiff also failed to file/produce any purchase order placed by

the appellant/defendant upon him. The witness of the appellant/defendant

Sh. Sudhish Chander Jain, DW1, clearly deposed that the Government

Undertaking/appellant/defendant never placed any oral purchase order. I am

inclined to believe this statement.    The other reason for believing such

statement is that there is no account of respondent/plaintiff in the books of

account of appellant/defendant, and which original ledgers were brought to

the Court.   Such original ledgers maintained in the regular course of the

business, ought to be believed. In my opinion, an adverse inference is also

liable to be drawn against the respondent/plaintiff because he was directed


RFA No.258/1997                                                 Page 4 of 5
 to produce the pleadings of the litigation pending between him and M/s.

Anuradha Sales Corporation and which however were not filed.          As per

Section 114 of the Evidence Act, 1872, a presumption needs to be drawn

against the respondent/plaintiff that the person who refuses to file such

pleadings does so only because the contents of the said documents would go

against him. The fact of the matter is that the appellant/defendant had

already made payment for the goods received to M/s. Anuradha Sales

Corporation. The appellant cannot therefore be burdened twice over. In my

opinion, there is just and sufficient cause and the interest of justice which

requires the additional evidence in the form of original blank ST forms which

have been filed by the appellant/defendant to be taken on record and be

considered for disposal of the appeal. In fact, I would go to the extent of

stating that such evidence is required by this Court suo moto in order to do

justice, because, otherwise, the appellant/defendant would suffer double

liability.


8.           In view of the above, I accept the appeal. The impugned

judgment and decree is set aside. The suit of the respondent/plaintiff will

therefore stand dismissed. Parties to bear their own costs. Decree sheet be

prepared. Trial Court record be sent back.




MARCH 07, 2011                                       VALMIKI J. MEHTA, J.

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