Kusum Kund Durga vs Kalra Papers (P.) Ltd.
2012 Latest Caselaw 1076 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.16/2004

%                                                     16th February, 2012

KUSUM KUND DURGA                          ..... Appellants
            Through:                Mr. S.N. Shukla, Advocate.


                      versus

KALRA PAPERS (P.) LTD.                    ..... Respondent

             Through:               Mr. G. Kabir, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Arguments in this case were concluded yesterday and this case

was listed for today for passing of the judgment.

2. The challenge by means of this Regular First Appeal(RFA)

filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 24.11.2003 decreeing the suit

of the respondent/plaintiff for a sum of ` 4,76,310/- with pendente lite and

future interest @ 12% per annum and costs. The suit has been decreed

with respect to supply of papers and paper boards. The respondent/plaintiff

filed the suit for recovery of money setting out a cause of action in the

plaint of non-payment of dues in terms of a running account maintained by

the respondent/plaintiff in its books qua the appellant/defendant. In the

plaint, except mentioning of the statement of account, of the balance due in

terms thereof, and the service of legal notice dated 27.9.1999, no other

details were mentioned as to which are the specific bills of which payments

remained due and outstanding.

3. The appellant/defendant contested the suit and took up two

principal defences. The first defence was that with respect to five bills,

exhibited before the trial Court during the cross-examination of the witness

of the appellant/defendant, as Ex.DW1/PX1 to Ex.DW1/PX5, no goods

were supplied and in fact these were fake bills. These disputed bills are

marked as Y1 to Y6 in the statement of account filed and exhibited on

behalf of the respondent/plaintiff as Ex.PW1/3. The second defence raised

by the appellant/defendant was that those goods which were supplied under

the bills exhibited before the trial Court as Ex.DW1/PY1 to Ex.DW1/PY5

were defective and which fact was duly informed to the

respondent/plaintiff. This fact of the defective goods was brought to the

notice of the respondent/plaintiff after the defect in the goods was brought

to the notice of the appellant/defendant by the buyers of those products

from the appellant/defendant. These disputed bills which pertain to

defective goods are mentioned in the statement of account Ex.PW1/3 as

entry Nos.X1 to X8.

4. After completion of pleadings, the trial Court framed the

following issues:-

"1. Whether the plaintiff has no cause of action to file the present suit? OPD

2. Whether the plaintiff is entitled for the suit amount? OPP

3. Whether the plaintiff is entitled for interest, if so, at what rate and to what extent? OPP"

5. Before proceeding to discuss the merits of the case certain

important aspects have to be noted. Firstly, the respondent/plaintiff filed

no document whatsoever not only with the plaint but also when evidence

was led on its behalf except the statement of account Ex.PW1/3. Further,

the disputed bills, Ex.DW1/PX1 to DW1/PX5, were not filed and proved in

the affirmative evidence led on behalf of the respondent/plaintiff, but were

only filed and „exhibited‟ in the cross-examination of the witness DW1,

Smt. Kusum Kunj Durga. I am using the expression "documents were

exhibited" as opposed to the "documents being proved and exhibited" with

regard to documents, Ex.DW1/PX1 to Ex.DW1/PX5, inasmuch as these

documents are not proved as required by law, and therefore, they will have

to be treated as unproved or unexhibited documents. This I say so because

not only these bills, Ex.DW1/PX1 to Ex.DW1/PX5, were not proved by

any affirmative evidence led by the respondent/plaintiff but also even in the

cross-examination of the DW-1 when these bills were confronted to the

witness they were not admitted, and in fact it was stated that these disputed

bills do not bear the signatures or the initials of any of the employees of the

respondent/plaintiff. Therefore, these documents cannot be said to have

been proved and hence cannot be referred to. As regards the weight to be

attached to these documents, Ex.DW1/PX1 to Ex.DW1/PX5, assuming the

same are evidence in the case, is an issue which I will advert to in the later

part of this judgment. Further, the respondent/plaintiff was put to notice of

the complete case of the appellant/defendant alongwith the documentary

evidence by the appellant/defendant by filing all the documents alongwith

the written statement, however, the respondent/plaintiff did not choose in

spite of knowledge of these documents of the appellant/defendant, to file

various documents to prove what is the normal stamp of the

respondent/plaintiff during the relevant period. Finally, no one from the

postal department was summoned to prove the service of legal notice

although the appellant/defendant had denied the receipt of the legal notice.

6. With this small preface, let me turn to the issues on merits.

The first issue is with respect to whether the respondent/plaintiff supplied

goods to the appellant/defendant which are covered under the bills,

Ex.DW1/PX1 to DW1/PX5. I have already noted above that these bills are

not proved at all and therefore the exhibit marks on these documents are of

no effect. The documents were exhibited in cross-examination of DW-1

when the answer was recorded in the cross-examination of DW-1 as "the

documents Ex.DW1/PX1 to DW1/PX5 do not bear the signatures or initials

of any employee of my firm". Surely, this was, by no stretch of

imagination, an admission of the disputed five bills, and therefore there was

no question of treating these documents as proved and being given exhibit

numbers. Further mere proving of the bills would not mean that there is

proof of actual delivery of goods under these disputed five bills. Delivery

is an aspect which had to be specifically proved by the respondent/plaintiff

once the receipt of goods under these bills was disputed. Even assuming

the delivery challans were not required to be filed, surely there can be other

evidences such as dispatch registers, gate passes and so on. Also when I

compare the disputed bills, Ex.DW1/PX1 to DW1/PX5, to the admitted

bills on record, which are the second set of bills under which defective

goods were received, the comparison shows that in those bills where goods

were received by the appellant/defendant, and which bills are Ex.DW1/PY1

to Ex.DW1/PY5 there is found in each of the bill the following

endorsement:

             Endorsement No.           Date
            559470                    22.8.98
            559468                    23.8.98
            559459                    27.6.98
            636878                    13.9.98
            559472                    6.8.98

These endorsements, which are in all probability of

receipt/delivery of goods, are however conspicuous by their absence in the

disputed bills, Ex.DW1/PX1 to DW1/PX5. Obviously, these aforesaid

endorsements must be either of the challan numbers under which the goods

were supplied or they were of a dispatch register entry numbers of the

respondent/plaintiff or gate-passes or some other such evidence to show

actual delivery of the goods to the appellant/defendant by the

respondent/plaintiff. The very fact that these endorsements do not exist on

the disputed bills, Ex.DW1/PX1 to Ex.DW1/PX5, shows that there was no

supply made to the appellant/defendant under these five disputed bills.

Surely, a person who sells the goods, such as the respondent/plaintiff, will

definitely in addition to the alleged bills showing supply, would have its

own dispatch registers, books of account and various other documents to

show actual dispatch of goods. This becomes all the more relevant as the

respondent is a company under the Companies Act, 1956 and its accounts

would in fact have been audited. The respondent/plaintiff however chose

not to file any copies of any books of account, goods registers or copies of

its dispatch register etc to show the dispatch/delivery of goods under the

disputed bills to the appellant/defendant. Further, other important fact to

determine whether goods were in fact supplied to the appellant/defendant

would be by means of sales tax ST I forms. It is not disputed that with

respect to the sales which were made by the respondent/plaintiff to the

appellant/defendant, ST I forms were in fact supplied by the

appellant/defendant to the respondent/plaintiff. The doubt with respect to

delivery of goods under these disputed bills can very well have been got

cleared by the respondent/plaintiff by filing the ST I forms with respect to

these disputed bills. Not only the respondent/plaintiff failed to file the ST I

forms showing the receipt of the goods under the disputed bills by the

appellant/defendant, on the contrary the appellant/defendant filed the

photocopy of the ST I form for the year 1998-99 before the trial Court

which showed that the disputed goods were never supplied. The trial Court

has given a mark being Mark A to this document, however, in my opinion,

the document is not to be marked but can be taken as proved and exhibited

inasmuch as the original of this document was bound to be in power and

possession of the respondent/plaintiff, and the respondent/plaintiff

therefore in accordance with Section 65(a) read with Section 66(2) of the

Indian Evidence Act, 1872 ought to have filed the original of this form,

however, as already stated above, except filing a bare bone statement of

account, the respondent/plaintiff filed no other document.

In view of the above, I hold that the appellant/defendant had

proved its case that no goods were supplied under the disputed bills,

Ex.DW1/PX1 to Ex.DW1/PX5.

7. So far as the aspect as to whether the goods which were

supplied under the bills marked as entries X1 to X8 in the statement of

accounts, Ex.PW1/3, in my opinion, the appellant/defendant has discharged

onus of proof that the goods supplied under these bills were in fact

defective and sub standard. To prove that the goods under these bills were

sub standard and defective, the appellant/defendant filed before the trial

Court her letters sent to the respondent/plaintiff dated 19.10.1998

(Ex.DW1/10), 21.9.1998 (Ex.DW1/6), 14.11.1998 (Ex.DW1/11),

19.11.1998 (Ex.DW1/12), and an undated letter Ex.DW1/13, besides the

debit note Ex.DW1/12A. Each of these aforesaid documents as mentioned

contained a stamp of the respondent/plaintiff which reads as under:-

"Kalra Papers Pvt. Ltd.

20, Raja Garden, New Delhi-110015"

There are identical stamps in each of the aforesaid letters and

the debit note. Above each of the stamps there is a signature of one or the

other persons who signed on behalf of the respondent/plaintiff-M/s. Kalra

Papers (P.) Ltd. These documents were filed by the appellant/defendant

alongwith its written statement. In spite of such documents having been

filed right since initial stage, and therefore they were put to notice of the

respondent/plaintiff, however, the respondent/plaintiff did not file even a

single document to show as to if the aforesaid stamps were not of the

respondent/plaintiff then what were the stamps of the respondent/plaintiff

during the relevant period. The respondent/plaintiff had personal

knowledge of what would be its correct stamp and therefore by virtue of

Section 106 of the Evidence Act, 1872 onus of proof was upon the

respondent/plaintiff to file the stamp of the contemporary period. The very

fact that the respondent/plaintiff has not filed what was its stamp of the

relevant/contemporaneous period clearly shows that the stamps on the

aforesaid documents, as also the endorsements of receipts are of no one

else but the respondent/plaintiff. Merely because these documents are

denied by the respondent/plaintiff, cannot mean that these documents are

not proved documents. These documents were duly proved in the affidavit

by way of evidence which was filed on behalf of the appellant/defendant.

The trial Court has therefore erred in de-exhibiting all these documents and

giving to them different marks. I therefore hold that these documents were

validly proved and exhibited by the appellant/defendant, and which

documents show that the appellant/defendant had on different occasions

informed to the respondent/plaintiff by means of writing of the goods being

defective.

8. There remains no doubt of the goods being defective inasmuch

as the appellant/defendant filed and exhibited letters of its customers duly

supported by the purchase orders of the buyer of those products M/s.

Growell Agriproducts Pvt. Ltd. to show the complaints about the defective

goods. The purchase orders were filed and exhibited by the

appellant/defendant before the trial Court as Ex.DW1/1, Ex.DW1/2 and

Ex.DW1/3. Not only the appellant/defendant filed the purchase orders, but

it also filed, proved and exhibited the letters from the customer M/s.

Growell Agriproducts Pvt. Ltd. with respect to defective/sub standard

nature of the goods. These letters of M/s. Growell Agriproducts Pvt. Ltd.

have been proved and exhibited as Ex.DW1/9 (dated 21.9.1998), Ex.

DW1/7 (dated 8.11.1998) and Ex.DW1/8 (dated 12.11.1998).

In view of the aforesaid I have no doubt in my mind that the

appellant/defendant has clearly discharged the onus of proof with respect to

the goods which are covered under the entries X1 to X8 in the statement of

account Ex.PW1/3 were defective goods.

9. The conclusion of the above is that with respect to the bills

covered under the entries Y1 to Y6 in the statement of account Ex.PW1/3

there was in fact no delivery of any paper or paper products to the

appellant/defendant, and with respect to entries X1 to X8 in the statement

of account Ex.PW1/3, the respondent/plaintiff was not entitled to payment

as goods which were supplied under these bills were defective. A reading

of the impugned judgment of the trial Court shows that none of the reasons,

which have been adverted to by me above, have been taken note of by the

trial Court. The impugned judgment therefore deserves to be set aside.

10. In view of the above, appeal is accepted. Impugned judgment

and decree is set aside. Suit of the respondent/plaintiff will stand dismissed.

Parties are left to bear their own costs. Decree sheet be prepared. Trial

Court record be sent back.

The amount deposited in this Court by the appellant/defendant

alongwith accrued interest, if any, be released back to the

appellant/defendant. The bank guarantee furnished by the

appellant/defendant also stands discharged.

VALMIKI J. MEHTA, J FEBRUARY 16, 2012 Ne