M/S. Group Interiors vs Subhash Chachra
2012 Latest Caselaw 11 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.556/2003

%                                                     2nd January, 2012

M/S. GROUP INTERIORS                                        ..... Appellant
                   Through:               Mr. Ajay Kumar Jha with
                                          Mr. Debojyoti Bhattacharya &
                                          Ms. Sarabjot Walia, Advs.

                      versus


SUBHASH CHACHRA                                              ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This matter is on the Regular Board of this Court since

5.12.2011. It is effective item no.7 as per today's Regular Board. No one

appears for the respondent although it is 3.00 P.M. I have therefore heard

counsel for the appellant, and after perusing the record am proceeding to

dispose of the appeal.

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

the impugned judgment of the Trial Court dated 19.2.2002. By the

impugned judgment, the suit filed by the appellant/plaintiff for recovery

of `3,21,132/- on account of various furniture items supplied to the

respondent/defendant was dismissed and the counter claim of the

respondent/defendant was decreed for `25,000/- with proportionate costs

and interest at 12% per annum.

3. The facts of the case are that the appellant/plaintiff is the

sole proprietorship concern of Smt. Pallavi Anand, wife of Sh.Vijay

Anand. The appellant/plaintiff, as the name suggests, was in the business

of work of interiors of buildings, including supply of furniture for the said

purpose. The appellant/plaintiff pleaded that she wrote a letter dated

14.9.1984 giving the estimated costs for manufacture and supply of the

desired furniture items to the respondent/defendant. It was pleaded that

the same was approved by the respondent/defendant with slight variations

in the items of the furniture to be supplied. The respondent/defendant is

also stated to have given a cheque for `25,000/- towards advance

payment for the manufacture and supply of the furniture items. It was

further pleaded that the respondent/defendant vide its letter dated

10.10.1984 confirmed the estimated costs of the furniture items to be

supplied with slight variations in the items of the furniture. The

appellant/plaintiff further pleaded that the necessary furniture items were

manufactured and supplied to the respondent/defendant between

18.12.1984 and 11.9.1985, and due receipts were obtained for the

furniture items supplied. It was pleaded that the respondent/defendant

had assured that the payment will be made in one lump-sum after all the

furniture items were supplied. After the supply of all the items of

furniture, the appellant/plaintiff submitted its final bill dated 20.9.1985

for the amount of `2,98,403/- after adjusting `25,000/- received as

advance amount, which was not paid. The appellant/plaintiff therefore

filed the subject suit seeking `2,73,403/- along with claim of interest at

18% per annum at `47,729.40 totaling to `3,21,132/-.

4. The respondent/defendant contested the suit by claiming that

he never ordered the furniture items and nor was the furniture mentioned

ever supplied. The case of the respondent/defendant was that the

appellant/plaintiff did not have the requisite knowledge and therefore the

respondent/defendant asked for refund of the advance paid of `25,000/-,

and with respect to which a counter claim was filed. The

respondent/defendant however did not dispute that he received an

estimate from the appellant/plaintiff concern known as the Group

Interiors and he had in fact issued a cheque for `25,000/- on 28.9.1984.

It was further pleaded that many items were supplied which the

respondent/defendant did not approve and which is mentioned in the

letter dated 10.10.1984. The letter dated 10.10.1984 is admitted to have

been written by the respondent/defendant. It was pleaded that Sh.Vijay

Anand, husband of the sole proprietor of the appellant/plaintiff was

required to discuss the matter personally with the respondent/defendant.

It was further the case of the respondent/defendant that he never signed

any receipts for the furniture items delivered which were alleged to be

fabricated.

5. After the pleadings were completed, the Trial Court framed

the following issues:-

"1. Whether there is privity of contract between the parties?

2. Whether the defendant placed an order with the plaintiff for making and supplying of the furniture for his residence at B-5, Safdarjung Enclave, New Delhi?

3. Whether letter dt. 10.10.1984 of the defendant enclosing approved copy of the estimate dt. 14.9.1984 does not constitute a contract between the plaintiff and defendant?

4. Whether the plaintiff has supplied the contracted items of furniture to the defendant as per the approved copy of the estimate dated 14.9.198i4, if so, what is the value thereof?

5. Whether the defendant is entitled to claim Rs.25,000/- from the plaintiff as alleged?

6. To what amount the plaintiff is entitled to in the suit?

7. Relief."

6. Before the Trial Court, the appellant/plaintiff proved a total

of 40 documents which were exhibited as Ex.PW1/1 to Ex.PW1/40, and

which documents pertained to the aspect of supply/delivery of goods

through challans, serving of the bills including the final bill, cartage bills

and serving of the legal notice and the failure of the respondent/defendant

to pay the amount. Ex.PW1/1 is an authorization letter signed by

Smt. Pallavi Anand in favour of her husband, Sh. Vijay Anand,

Ex.PW1/2 is the letter dated 10.10.1984 sent by the

respondent/defendant, Ex.PW1/3 to Ex.PW1/20 are the challans against

which the items were delivered to the respondent/defendant and

Ex.PW1/21 to Ex.PW1/40 are the cash vouchers with the cartage

vouchers showing the payment made to the transporter for the delivery of

the furniture items.

7. So far as the issue no.1 of privity of contract is concerned,

the Trial Court has found that Sh. Vijay Anand, husband of Smt. Pallavi

Anand, the sole proprietress, was not authorized to deal with the

respondent/defendant and therefore there is no privity of contract between

the parties. I find that the Trial Court has wholly misdirected itself in

deciding this issue against the appellant/plaintiff, inasmuch as, once the

respondent/defendant admits that he has written the letter dated

10.10.1984, Ex.PW1/2, and also had forwarded a sum of `25,000/- as

advance, it cannot be argued on behalf of the respondent/defendant that

there was no privity of contract to the appellant/plaintiff. In fact the

respondent/defendant had himself pleaded that in his letter dated

10.10.1984, Sh. Vijay Anand had to finalise the items, i.e. Sh. Vijay

Anand was representing the plaintiff and with whom the

respondent/defendant was dealing with. Further, once it is held, and

which is an aspect which I will deal with hereinafter, that the

respondent/defendant had in fact received the furniture items, then, even

if there is no contract with the appellant/plaintiff, the

respondent/defendant having received the furniture items, in terms of the

Section 70 of the Contract Act, 1872, the respondent/defendant is bound

to make payment with respect to goods received by him.

8. With respect to the issue no. 2 of whether an order was

placed by the respondent/defendant upon the appellant/plaintiff, the Trial

Court has held that the letter dated 10.10.1984, Ex.PW1/2 showed that no

order was ever materialized. In my opinion, once again the Trial Court

has arrived at a totally illegal and perverse finding. That there was a

concluded contract between the parties becomes clear once we refer to

the letter dated 14.9.1984 which was sent by the appellant/plaintiff to the

respondent/defendant and the reply thereto dated 10.10.1994, Ex.PW1/2.

I am reproducing below the two letters dated 14.9.1984 and 10.10.1984

Ex.PW1/2 without reproducing the unnecessary long list of furniture

items which are mentioned in the detailed estimate dated 14.9.1984

(attached with the letter dated 10.10.1984) inasmuch as it is 3 pages

document comprising of 57 items of different furniture pieces.

Though the letter dated 14.9.1984 has not been exhibited by the

Trial Court since it is an admitted document, I am referring to the same,

more so because the letter of the respondent/defendant dated 10.10.1984,

Ex.PW1/2 annexes therewith the estimate dated 14.9.1984 comprising 57

items of furniture. The letters dated 14.9.1984 and 10.10.1984 read as

under:-

"14th September, 84.

Dear Mr.Subhash Chachra,

Reference to various meetings undersigned had with you and your approval of designs and lay-out enclosed please find our estimate for supply of furniture for your residence. Rates quoted are exclusive of Sales tax and are up to white. Please note that we will require 40% advance, 55% during progress of work and balance on completion.

Thanking you with kind regards,

(VIJAY ANAND)

Sh.Subhash Chachra, Satyam Cinema, West Patel Nagar, NEW DELHI.

&

"Dear Mr. Vijay Anand

I enclose herewith a copy of your estimate, and would like you to note the following:

1. Items cross-marked are not required.

2. Certain items' quantity is reduced, as marked in the quantity column.

3. Item Nos. 11, 12 and 13 under the sub-heading T.V.ROOM, shall be discussed with you personally.

Thanking you,

Yours truly,

(SUBHASH CHACHRA) Mr. Vijay Anand Group Interiors D-70 Saket New Delhi 110 017

Enc: a copy of your estimate."

9. A reference to Ex.PW1/2 dated 10.10.1984 shows that only

the cross marked items are not required, i.e. only with respect to the cross

marked items, there was no agreement. The cross marked items are just 6

in number out of the total of 57 items in the estimate dated 14.9.1984.

Thus the very fact that rest of the items are not cross marked shows a

concluded contract with respect to the other 51 items. With respect to

certain items, the quantity is reduced and which items are 5 in numbers.

Therefore, the quantity supplied will stand reduced by 5 numbers of items

being 4 items at page 2 of the estimate and 1 item at page 3 of the

estimate. I may at this stage itself mention that though there are 57 serial

numbers of furniture items to be supplied, under each individual serial

number in many furniture items there is more than one item of furniture,

i.e. under many serial number more than one similar items of furniture

were to be supplied. Therefore, there is a concluded contract with respect

to the items which are not cross marked and the items of whose quantity

is not reduced and qua the quantity of items left after the reduced

quantities. It is only with respect to item numbers at serial numbers 11,

12 and 13 that it was said/written that the matter would be discussed

personally, and therefore only for these item numbers 11, 12 and 13

which are a Wall Unit, a Carved Shelf and a Wall Mirror with Carving

and Antiquing, it cannot be said that there is a contract. Of course

whatever items are found to have been, in fact, received by the

respondent/defendant, amounts would be payable for such items also. In

law it is not necessary that there has to be a proper typed out contract

written on a stamp paper inasmuch as, as per the provisions of Sections 7,

8 and 9 of the Contract Act, 1872, a contract can be wholly oral or wholly

in writing, or partly oral or partly in writing, or partly express or partly

implied, or partly or wholly even by conduct of the parties. A reference

to the aforesaid two letters dated 14.9.1984 and the letter dated

10.10.1984, Ex.PW1/2, clearly shows that there was, except for certain

minor items, a concluded contract which was entered into with respect to

all other items. The Trial Court was therefore wholly unjustified in

arriving at a finding that there was no concluded contract. Once again, at

this stage, and at the cost of repetition, I may state that even assuming

that there is no confirmed contract, Section 70 of the Contract Act, 1872

will come into play once it is found that the items of furniture were in fact

supplied to the respondent/defendant and the same have been retained by

him and not paid for.

10. The main issue really is as to whether the items of furniture

were in fact supplied to the respondent/defendant. In this regard, the

relevant issue which was framed was issue no. 4. The Trial Court has

dealt with this issue in paras 16 & 17 of the impugned judgment and

which paras read as under:-

" I S S U E N O. 4

16. Onus to prove this issue was also upon the plaintiff in discharge of which the plaintiff has produced and examined PW-1 Shri Vijay Anand. PW-1 Shri Vijay Anand has no doubt deposed material facts consistent to the claim of the plaintiff and in addition to that he has proved the documents Ex.PW1/1 to Ex.PW1/40, out of which the document Ex.PW1/3 to Ex.PW1/20 are the challans through which the goods were allegedly supplied by the plaintiff to the defendant. I have gone through all the challans Ex.PW1/3 to Ex.PW1/20 and find that none of the challans was issued by the plaintiff. All these challans were issued by Shri Vijay and Associates Pvt. Ltd. with whom no contract has been pleaded and proved by the plaintiff by any document in that regard. Since these challans have not been issued by the plaintiff, I find that the plaintiff bitterly failed to prove the supply of those goods to the defendant and the alleged supply made by Shri Vijay Anand Association Pvt. Ltd. was not in accordance with the alleged contract itself. At the same time the challans proved by the plaintiff do not prove the signatures of the defendant for the receipt of any of the goods allegedly supplied. Therefore in the absence of proving the signatures of the defendant on any of the challans Ex.PW1/3 to Ex.PW1/20, I find that the plaintiff bitterly failed to prove the supply of nay goods mentioned in the challan Ex.PW1/3 to Ex.PW1/20 to the defendant on any date as stated in those challans. Therefore, I find despite proving those documents Ex.PW1/3 to Ex.PW1/20 the plaintiff bitterly failed to prove the supply of nay item to the defendant as no document was bearing the signatures of the defendant or of any person duly authorized by the defendant.

17. The plaintiff has also proved the documents Ex.PW1/21 to Ex.PW1/40 which are the vouchers through which the cartages have been allegedly paid for supply of the goods. In view of the statement made by PW-1 on cross-examination no cartages had been paid by the plaintiff and at the same time those vouchers have not been addressed to the defendant for the supply of the goods at the address of the defendant. Therefore even by proving those vouches, I find that the plaintiff bitterly failed to corroborate the supply of the goods at the residence of the defendant, therefore, by these documents Ex.PW1/3 to Ex.PW1/40, I find plaintiff bitterly failed to supply any goods to the defendant at his residence. So this issue stands decided in favour of the defendant and against the plaintiff."

11. In my opinion, once again the Trial Court has committed a

grave illegality in arriving at a finding that the items of furniture were not

supplied. The Trial Court has arrived at the following conclusions in the

aforesaid paras 16 and 17 of the impugned judgment:-

i) That the challans, Ex. PW1/3 to PW1/20 are not issued by

the appellant/plaintiff;

ii) There are no signatures of the respondent/defendant for

receipt of the goods on the challans and;

iii) No payment has been made on the cartage vouchers which

were exhibited as Ex.PW1/21 to PW1/40.

12. Let us examine each of the conclusions of the Trial Court to

decide the correctness of the same. The first aspect is whether the

challans, Ex.PW1/3 to Ex.PW1/20 are not issued by the

appellant/plaintiff, and if so, its effect. Of course, the challans are no

doubt issued by M/s. Vijay Anand Associates, however, in law, it makes

no difference as to who has sent the goods inasmuch as consideration to a

contract need not flow only between the parties to a contract, i.e. the

respondent/defendant becomes liable to pay for goods once he received

the goods as ordered by him and as received by him irrespective of from

whom he has received them. Also, the defence of the

respondent/defendant is like making a mountain out of a molehill

inasmuch as surely if a husband and wife, i.e. Smt. Pallavi Anand and Sh.

Vijay Anand are carrying on business under different names, then, from

where the furniture items are supplied to the respondent/defendant, i.e.

from M/s. Group Interiors or from M/s. Vijay Anand Pvt. Associates who

have issued the challans, is purely a matter of heading only and the same

has nothing to do with the substance of the claim. I therefore hold that

merely because the challans by which the furniture items were supplied

are on the printed challans of M/s. Vijay Anand Associates and not of

M/s. Group Interiors, the same cannot make any difference once the

respondent/defendant is found to have received the furniture items.

13. The next aspect is as to whether the items of furniture are in

fact supplied to the respondent/defendant and received by him. When we

look at the challans, Ex.PW1/3 to PW1/20, the same appear to be quite

clearly genuine even on a single glance as they are the typical challans of

different dates, are in different handwritings of different persons, of

different items, and, the physical condition of the challans also quite

clearly reflects on their genuineness. Also the genuineness of the

challans becomes clear from different endorsements which are made on

the different challans, i.e. whereas in some challans it is mentioned that a

particular number of pieces/articles are received, i.e. in the challan dated

14.6.1981, Ex.PW1/16, the endorsement is of having received two chairs

and one small sofa and having returned one complete double hanging

almirah, in contract in Ex.PW1/17, it is written as "received as per above'

and as differentiated from other challans in which it was written that

specific number of items have been received. Further, the challans

contain the complete and detailed address of the defendant being B5/11,

Safdarjung Enclave, New Delhi. The challans seem to have been received

mostly by one person whose surname is Chachra, as the signatures on the

receipts show, and obviously, such person Mr. Chachra would either be

the parent of the defendant or his wife or some other family member.

Some of the challans are also received by some other persons, however,

there is nothing unusual in the same, because when items are received in

a house many a times even servants or other employees of the house-

owner to whom the furniture items are delivered signs and receives the

furniture items. I would go to the extent of saying that almost in

substantial number of cases, receipts are actually not only by a person in

whose name the challans/bills are because normally such person who is a

working person is not found at home on those occasions when the

furniture items or other items are in fact supplied. It will be thus most

impractical to require that the receipts can only be by the person who has

bought the furniture items.

14. The Trial Court has then held that the cartages vouchers

cannot be believed because these cartage vouchers do not contain the

complete address of the respondent/defendant. Let us see these cartages

vouchers. The first important point to note is that with respect to each

cartage document, there is a corresponding voucher with respect to the

cartage batch of the transporter. The cartage vouchers are cartage

vouchers showing supply of furniture items by the owner of the transport

(and which in all probability either is a tempo or cycle rickshaw or some

other small mode of transport), to different clients and one of which is

also the respondent/defendant. This position is found in most of the

cartage documents where the transportation is shown either to the

residence of the respondent/defendant, or to the office of the Magazine

"India Today" or to some person in Malcha Marg or to Nehru Place or so

on. Even a single look at these cartage documents and the vouchers

shows quite clear authenticity of the said documents. Such cartage

documents are invariably small cartages amounting to `50/- or `60/- or

`25/- or `35/- or `165/- or `70/- or so on and so on. I would go to the

extent of saying that the documents in these cases being the cartage

challans and the corresponding vouchers with respect to the same speak

for themselves with regard to their authenticity.

15. In my opinion, adverse inference is also liable to be drawn

against the respondent/defendant inasmuch as the appellant/plaintiff had

sent a legal notice dated 8.5.1986 to the respondent/defendant, an aspect

which is mentioned in para 12 of the plaint and in reply to para 12 of the

plaint, the respondent/defendant in the written statement does not dispute

having received this legal notice but has not replied to the same. The

stand of the respondent/defendant that he did not send any reply because

a common friend was showed the notice who called up Mr. Vijay Anand

and who informed that the notice was only sent so that the

respondent/defendant would not ask for the return of `25,000/- given as

advance money, was/is obviously a false stand because the name of the

so-called common friend is not mentioned, and it goes against normal

human conduct that there is no reply sent to a legal notice which claims

amount running into lakhs of rupees.

16. In my opinion, I need not labour any further into this aspect

of the furniture items not having been supplied to the

respondent/defendant inasmuch as whereas the appellant/plaintiff led

evidence and proved her case, admittedly, no evidence at all was led on

behalf of the respondent/defendant. I am therefore surprised that in the

absence of any affirmative evidence on behalf of the

respondent/defendant, how could the Trial Court have dismissed the suit

of the appellant/plaintiff, more so in the presence of all the original

documents be the contract letters or the delivery challans/bills or the

cartage documents. Obviously, a person who does not have the courage

to lead evidence and stand the test of cross-examination has necessarily to

be disbelieved in the face of overwhelming documentary evidence led on

behalf of the appellant/plaintiff.

17. A civil case is decided on balance of probabilities. The

balance of probabilities in the present case shows that there was in fact a

contract under which furniture items were supplied to the

respondent/defendant, and, it makes no difference whether the furniture

items were supplied by M/s. Group Interiors or M/s. Vijay Anand

Associates. The fact of the matter is that the respondent/defendant has

received these furniture items, and as per Section 70 of the Contract Act,

1872 every person, in law, is bound to pay for the goods received by

him, whether or not they are pursuant to a contract. Finally, it is the

aspect that the respondent/defendant did not lead any affirmative

evidence and did not have the courage to stand the test of cross-

examination. The Trial Court has thus clearly committed a gross

illegality and perversity in dismissing the suit for recovery of monies

filed by the appellant/plaintiff and decreeing the counter claim for refund

of the advance amount of `25,000/-. Ordinarily, I would have sent a copy

of this judgment to the inspecting Judge or the concerned ADJ who had

decided this case, but I cannot take the matter any further inasmuch as the

said ADJ has since retired.

18. In view of the above, the appeal is accepted. The suit of the

appellant/plaintiff is decreed for an amount of `3,21,132.40 along with

pendente lite and future interest till payment at 12% per annum simple.

The appellant/plaintiff is also awarded costs. The counter claim of the

respondent/defendant shall stand dismissed. Decree sheet be prepared.

Trial Court record be sent back. The amount deposited by the appellant in

this Court, along with accrued interest be released back to the appellant

by the Registry.

VALMIKI J. MEHTA, J JANUARY 02, 2012 ak