Delhi High Court
S.V.Electricals Ltd. vs Sylvania & Laxman Ltd. on 23 November, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 21st November, 2011
Judgment Delivered On: 23rd November, 2011
+ RFA(OS) 57/2011
S.V.ELECTRICALS LTD. ...Appellant
Through: Mr.P.S.Bindra, Advocate
versus
SYLVANIA & LAXMAN LTD. ...Respondent
Through: Mr.Harish Malhotra, Sr.Advocate
with Mr.Rajender Agarwal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE S.P.GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and decree dated
31.11.2010, the suit filed by the plaintiff for recovery of
`48,89,814/- together with pendente lite and future interest @
21% per annum has been dismissed with costs in sum of
`75,000/- against the plaintiff.
2. It is the case of the plaintiff that on orders being
placed from time to time it supplied goods to the defendant at
a credit of 45 days and raised 31 invoices which were
accepted. Since sales tax was not to be paid by the defendant
and in lieu thereof it had to issue „C-Forms‟ after obtaining the
same from the Sales Tax Department, three C-Forms were
issued in respect of the goods supplied and this was evidence
of acknowledgment of the liability. Pleading that from one unit
of the plaintiff goods worth `25,21,285/- were supplied under
10 invoices between the dates 08.03.1995 to 09.08.1995 and
goods worth `7,94,985/- were supplied from the other unit and
for which 21 invoices were raised between the dates
25.03.1994 to 24.06.1995; suit amount claimed was
`25,21,285/- + `7,94,985/- along with interest in sum of
`11,79,168/- and `3,94,376/- for the supplies effected by the
two units. Pre-suit interest @ 21% per annum was calculated.
3. In support of the plea that the goods were delivered
it was stated that the transporter „Jet Roadlines Corporation‟
had delivered the goods.
4. The defendant denied the claim as pleaded but
stated that some goods were received from the plaintiff
between May 1995 to 20.9.1995 and for which four cheques
were issued as under:-
Cheque No. Date Amount
511645 1.5.1995 `3,39,395/-
926007 27.5.1995 `1,75,000/-
643655 31.5.1995 `1,77,901/-
51152 20.9.1995 `1,90,000/-
Total `8,82,296/-
5. It was further pleaded by the defendant that as per
practice between the parties the plaintiff would get the
documents retire through its banker i.e. State Bank of India
Indore to whom the original invoice, along with the goods
receipt were handed over with the clear instructions that the
documents should be presented to the banker of the
defendant against money being realized against the invoice.
This not being done, it was pleaded, that the same was proof
of the falsity of the case pleaded in the plaint. As regards the
three C-Forms referred to in the plaint, the defendant pleaded
that during the period in question, there was labour and staff
unrest at its factory and office and that some disgruntled
employee of the defendant had picked up the said three C-
Forms and manipulated the same to the benefit of the plaintiff.
6. The learned Trial Judge has found complete
inchoateness, inconsistencies and irreconcilable documentary
evidence placed on record and has thus dismissed the suit.
7. At the forefront of the proof led by the plaintiff were
three C-Forms Ex.P-5(1), Ex.P-5(2) and Ex.P-5(3).
8. The C-Form Ex.P-5(1) has been issued by the Sales
Tax Department on 27.8.1997 but bears the date 15.12.1995
as the date of it being issued by the defendant. At the rear are
mentioned seven bills No.20, 21, 27, 46, 47, 70 and 71 out of
which only four bills being No.27, 47 dated 8.3.1995, 70 dated
31.3.1995 and 71 correspond to the bill number on which the
suit is based. It may be highlighted here that two bills relied
upon in the plaint are stated to bear No.47 and two bills are
stated to bear No.70. The C-Form Ex.P-5(2) has been issued
on 18.09.1997 by the Sales Tax Department but bears the
date 28.05.1996 as the date of it being issued by the
defendant. At the rear are mentioned eight bills No.59, 60, 79,
80, 81, 82, 153 and 215. Except bill No.153 and 215 the
remaining bills have corresponding number of the invoice of
the bill relied upon by the plaintiff. The C-Form Ex.P-5(3) has
been issued by the Sales Tax Department on 18.09.1997 but
bears the date 28.05.1996 as the date of it being issued by the
defendant. At the bottom against the column of particulars of
bill is mentioned bill No.47 value of which corresponds to the
value of the invoice relied upon by the plaintiff. In other words
the three C-Forms have a reference to only eleven out of the
thirty one invoices/bills raised by the plaintiff and yet the claim
in the suit is that the three C-Forms were issued with reference
to the goods supplied under the thirty one bills. In the next
paragraph we would be putting in tabular forms a graphic
reflection of the stated bills raised and as find a reflection in
the C-Form.
9. At the trial the plaintiff proved the „Way Bills‟ issued
by the courier agency „ELBEE‟ through which the invoices were
statedly sent as also the bills raised by the transporter „Jet
Roadlines Corporation‟ and if we may put, in a tabular form,
the thirty one bills under which goods were statedly supplied,
reflection thereof in the C-Forms and the corresponding „Way
Bills‟ and bills raised by the carrier the same would be as
under:-
Bills Date Amount Shown in Carrier Bills
the C-form (tallied by date)
or not.
1 7.4.1995 23,378/- No Way Bill
Ex.P4(1)@ page
54 part III
5 18.4.1995 20,572/- No Way Bill
Ex.P4(2)@ page
56 part III
Way Bill
Ex.P4(3)@ page
59 part III
14 24.4.1995 23,378/- No
16 24.4.1995 23,378 No
26 3.5.1995 18,702/- No Way Bill
Ex.P4(4)@ page
62 part III
27 8.5.1995 46,754/- Yes but Way Bill
amount Ex.P4(5)@ page
being 65 part III
`2,79,509/-
and date
14.2.1995
36 31.1.1995 23378/- No
38 11.5.1995 50,795/- No Way Bill
Ex.P4(6)@ page
68 part III
47 8.3.1995 3,59,506/- Yes Receipt Code
No.19124
Ex.P2(1) @p.10
47 17.6.1995 1,70,931/- Yes Code No.30811
Ex.PW2/8 @
p.198
50 25.5.1995 50,795/- No
59 4.7.1995 3,78,708/- Yes Code No.30833
Ex.P2(5) @ p.30
[original at
p.200]
60 4.7.1995 3,78,708/- Yes Code No.30834
Ex.P2(6) @ p.34
[original at
p.201]
62 3.6.1995 50,795/- No Way Bill
Ex.P4(7)@ page
74 part III
63 3.6.1995 50,795/- No Way Bill
Ex.P4(8)@ page
77 part III
64 5.6.1995 50,795/- No Way Bill
Ex.P4(9)@ page
80 part III
65 6.6.1995 50,795/- No Way Bill
Ex.P4(11)@
page 84 part III
68 9.6.1995 50,795/- No Way Bill
Ex.P4(10)@
page 82 part III
69 13.6.1995 51,303/- No
70 14.6.1995 50,795/- No
70 31.3.1995 3,59,506/- Yes Code No.18309
Ex.P2(2) @ p.14
[Original at
p.191]
71 31.3.1995 3,59,506/- Yes Code No.18310
Ex.P2(3) @ p.18
72 16.6.1995 50,795/- No
78 24.6.1995 50,795/- No
79 9.8.1995 1,89,355/- Yes Code No.19852
Ex.PW-2/4
@p.194
80 -do- -do- Yes Code No.19853
Ex.PW-2/5
@p.195
Code No.19854
81 -do- -do- Yes Ex.PW-
2/[email protected]
Code No.19855
82 -do- -do- Yes Ex.PW-
2/[email protected]
100 13.10.1994 46,754/- No
150 13.12.1994 4,676/- No
205 25.3.1994 33,334/- No
10. We have noted hereinabove the exhibit marks of
the related documents and the page number in the record of
the learned Single Judge because appeal paper books have not
been prepared.
11. The forwarding letters, one of which has not been
exhibited, and the others exhibited as Ex.P-1(3), Ex.P-1(6),
Ex.P-1(11), Ex.P-1(14) and Ex.P-1(16) are identically worded
save and except the reference to the invoice number, the
Hundi Number and the lorry receipt number. We note only one
of them i.e. Ex.P-1(3). It reads as under:-
"To
The Branch Manager
State Bank of Indore
Amana Branch
Dewas: 455 001
REG. BILL PURCHASED DA/DDR
Dear Sir,
We are enclosing the following documents drawn
on Sylvania and Laxman Ltd., 68/1-3, Najafgarh Road
New Delhi.
1. Invoice No.70/94-95 dated 31/03/95 for
`359506.00
2. Hundi No.52/94-95 dated 31/03/95
3. L.No.DX-2477 dated 31/03/95 of Jet Roadlines
Corporation.
Please credit proceeds to our cash credit
account.
INSTRUCTIONS
1. PRESENT THE DOCUMENT TO PARTY THROUGH
STATE BANK OF INDORE M-94, CONNAUGHT CIRCUS
BRANCH OPP. SUPER BAZAR, NEW DELHI.
2. DELIVER DOCUMENTS AGAINST ACCEPTANCE OF
HUNDI. PLEASE ALSO COLLECT CST C-FORM. IF C-
FORM IS NOT GIVEN BY THE PARTY THEN COLLECT
EXTRA RUPEES 27554.00.
3. ALL YOUR DISCOUNTING CHARGES TO BE
COLLECTED FROM US.
4. COLLECTING BANK‟S COLLECTION AND
REMITTANCE CHARGES TO BE COLLECTED FROM
PARTY.
5. PLEASE COLLECT INTEREST @ 21% AFTER 60
DAYS FROM DATE OF HUNDI I.E. FROM 30/05/95. THIS
HUNDI SHOULD BE RELEASED ONLY AFTER
COLLECTING THE PRINCIPAL WITH OVERDUE INTEREST
IF NOT PAID ON DUE DATE.
THANKING YOU,
YOURS FAITHFULLY
FOR S.V.ELECTRICALS LTD.
SD/- (ILLEGIBLE) MANAGING DIRECTOR
ENCL: AS ABOVE
CC TO: M/S. SYLVANIA & LAXMAN LTD. 68/1-3,
NAJAFGARH ROAD NEW DELHI."
12. The aforesaid i.e. Ex.P-1(3) is obviously relatable to
bill No.47 in sum of `3,59,506/- and suffice would it be to
highlight that learned counsel for the appellant could only
shake his head in disbelief and having no answer, ventured no
reply, when asked as to how come the defendant could receive
the goods without receiving the documents, after retiring the
same, from its banker to whom plaintiff‟s banker had sent the
documents too.
13. This is the position with each and every alleged
transaction.
14. As we have noted hereinabove the principal amount
under the thirty one bills is `25,21,285/- + `7,94,985/- =
`33,16,270/-. As noted hereinabove the three C-Forms, Ex.P-
5(1) to Ex.P-5(3) have a reference to sixteen bills, five of which
do not correspond to the number of the thirty one bills on
which the suit is based. The total value of the sixteen bills
referred to in the three C-Forms is `55,42,988/-. It is apparent
that the three C-Forms do not cover the value of the goods
statedly supplied under the thirty one bills. Now, it is the
positive case of the plaintiff that it had received the C-Forms
for all the goods supplied, a fact which is obviously incorrect.
It probablizes that some disgruntled officer or employee, as
claimed by the defendant, during the period of unrest in the
factory and the office of the defendant had contrived to
manipulate and issue in the name of the plaintiff three C-
Forms, which on their face have contrived dates as noted
hereinabove.
15. It may be true that the defendant has also not
made good the defence that it had received goods under four
bills for which payment was made in the sum of `8,82,296/-,
but the fact of the matter remains that the plaintiff had to
prove its case and cannot rest on the defence failing, in the
instant case for the reason the plea in the written statement is
not one of confession with avoidance. The defendant denied
having received any goods under the thirty one bills referred
to in the plaint and merely because it admitted having
received goods of much lesser value, under some other bills
but failed to establish the same, would not mean that the
positive onus on the plaintiff to prove its case has been
discharged.
16. We have independently reflected, albeit briefly, as
above and for the remainder reasoning by us, it be treated
that the reasoning of the learned Single Judge, which could not
be shaken by learned counsel for the appellant, is incorporated
as our reasoning with our acceptance thereto.
17. The appeal is dismissed but we leave the parties to
bear their own costs.
(PRADEEP NANDRAJOG)
JUDGE
(S.P. GARG)
JUDGE
November 23, 2011
mm
