M/S. Friends Automobiles vs M/S. Neptune Equipment Pvt. Ltd.
2011 Latest Caselaw 5039 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.182/2001

%                                                  13th October, 2011

M/S. FRIENDS AUTOMOBILES                              ..... Appellant
                    Through:          Mr. Naresh Khanna, Adv.


                          versus


M/S. NEPTUNE EQUIPMENT PVT. LTD.                        ..... 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)

R.P.No.437/2011

For the reasons stated in the application, the appellant is

re-heard after setting aside the judgment dated 7.2.2011 inasmuch as

the same was decided in the absence of the appellant.

I have heard the counsel for the appellant with respect to

the appeal. The application is disposed of.

RFA 182/2001

1. The challenge by means of this Regular First Appeal is to

the impugned judgment and decree dated 31.1.2001 whereby the suit

of the respondent/plaintiff for recovery was decreed. The suit for

recovery was decreed for price of two machines supplied to the

appellant i.e. one Neptune Diesel Smoke Meter and one Neptune

Exhaust Gas Analyser.

2. The facts of the case are that with respect to the two

machines supplied to the appellant, the respondent/plaintiff raised bills

numbered 92361 and 92362, dated 28.7.97, for Rs.1,65,000/- and

Rs.1,22,100/- respectively. The appellant made payment of only

Rs.25,000/-, and the balance amount was given by post-dated cheques

which were dishonoured on presentation, resulting in filing of the suit.

3. Three heads of arguments have been addressed on behalf

of the appellant in this appeal. First is that the machinery which was

supplied by the respondent/plaintiff was defective and therefore the

respondent/plaintiff was not entitled to any amount. The second

argument is that the Courts at Delhi had no territorial jurisdiction. The

third argument is that the Trial Court wrongly closed the evidence of

the appellant/defendant.

4. After completion of pleadings, the trial court in the present

case framed the issues by passing the following order:-

"1.03.2000 Present- Representative of the parties.

Replication filed. Copy given. The following issues are framed.

1. Whether the machinery supplied by the plaintiff to the defendant was defective as alleged by the defendant and defendant was not liable to pay the cost of the equipment? O.P.D.

2. Whether this court has no territorial jurisdiction to entertain this suit? O.P.D.

3. Whether the plaintiff is entitled to claim the amount of the suit alongwith interest? O.P.P.

4. Whether the suit is signed and verified by duly authorized person.

5. Relief.

To come up for evidence of the defendant on issue o. 1 and 2 on 8.5.2000."

5. A reading of the order dated 1.3.2000 passed by the trial

court shows that the onus of proof of issue numbers 1 and 2 was on

the appellant/defendant. This order has become final because the

same was neither challenged by the appellant/defendant in a higher

court either at that stage nor it has been challenged in the present

appeal. Therefore, onus of proof that the plaintiff was not entitled to

payment was on the appellant/defendant. Further, the onus of proof

was rightly put on the appellant/defendant inasmuch as the

appellant/defendant admitted to having received the machinery and

the bills, and its defence was that money was not liable to be paid

because the machinery was defective, and which therefore had

necessarily to be proved by the appellant/defendant and therefore

onus of proof was rightly put on the appellant/defendant.

6. After the issues were framed, the first date which was fixed

for evidence was 8.5.2000 when no evidence was led on behalf of the

appellant/defendant on the ground that the sole proprietor of the

appellant had fallen sick. The next date fixed in the case for evidence

was 9.8.2000 when once again no evidence was led on the ground that

the mother of the sole proprietor expired. There was, however, no

date given as to when the mother had expired. The Trial Court

therefore fixed a third date for evidence, i.e. 20.11.2000. Once again

on this date no evidence was led on behalf of the appellant and

therefore the case was adjourned on payment of costs of Rs.1,000/- for

evidence of the appellant/defendant on 31.1.2001. On 31.1.2001 also

no witness was present on behalf of the appellant/defendant and

therefore evidence of the appellant/defendant was closed. I therefore

do not find any illegality or perversity in the impugned order of the

Trial Court dated 31.1.2001 which closed the evidence of the

appellant/defendant as evidence was not led on 4 occasions, i.e.

8.5.2000, 9.8.2000, 20.11.2000 and 31.1.2001.

7. Once the appellant/defendant failed to lead evidence when

the onus of proof of the issues was on him, nothing further remained

and suit therefore was rightly decreed.

8. Learned counsel for the appellant/defendant argued that

the onus of proof of issue no. 3 as to the entitlement of interest was on

the respondent/plaintiff and therefore this issue having not been

proved, the respondent/plaintiff should not be entitled to interest. I do

not agree with this argument as advanced on behalf of the learned

counsel for the appellant/defendant inasmuch as the

appellant/defendant admitted to having received the legal notice dated

15.7.1998 which was sent by the respondent/plaintiff, and in which

notice interest was claimed. Once a legal notice is sent claiming

interest, the provision of Section 3(1)(d) of the Interest Act, 1978

comes into play entitling the court to award interest. The receipt of

legal notice dated 15.7.1998 sent by the respondent/plaintiff to the

appellant/defendant is not only admitted, the appellant/defendant in

fact sent a reply dated 8.10.1998 through his Advocate. An admitted

fact therefore was not required to be proved, and the trial court was

therefore justified in awarding interest.

9. Learned counsel for the appellant finally argued that the

Courts at Delhi had no jurisdiction and therefore the suit ought to have

been dismissed. Firstly, the onus of proof of this issue was put upon

the appellant/defendant because the issue which is framed is not that

whether the Courts at Delhi had territorial jurisdiction but the issue

framed was whether the Courts at Delhi had no territorial jurisdiction.

Once no evidence was led on behalf of the appellant/defendant on an

issue on which onus of proof is on him, there was no need of rebuttal of

evidence and therefore the Trial Court was justified in arriving at a

finding that the Courts at Delhi had territorial jurisdiction. I have also

gone through the contract entered into between the parties dated

26.08.1997. This purchase order is addressed to the

respondent/plaintiff at its Delhi address. This is signed by both the

parties. Prima facie, therefore, it cannot be said that the Courts at

Delhi did not have territorial jurisdiction. As already stated, once prima

facie the Courts at Delhi had territorial jurisdiction, and onus of proof

was put upon the appellant/defendant to prove otherwise, the

appellant/defendant ought to have led evidence to discharge the onus,

but he failed to do so, and hence the Trial Court has therefore rightly

held that the Courts at Delhi had territorial jurisdiction.

10. A civil case is decided on balance of probabilities. In the

present case, once the appellant/defendant failed to lead any

evidence, onus of the crucial issues being on him, the Trial Court on

balance of probabilities was entitled to arrive at the findings and

conclusions which it has done. There is no illegality or perversity in the

findings of the Trial Court entitling this Court to interfere in appeal.

11. The appeal is accordingly dismissed, leaving the parties to

bear their own costs.

                                                   VALMIKI J. MEHTA,J
OCTOBER      13, 2011
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