Bips Systems Ltd. vs Tata Infotech Ltd.
2012 Latest Caselaw 4038 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment delivered on 10.07.2012

+       RFA 69/2003

        BIPS SYSTEMS LTD.                       ..... Appellant

                     versus

        TATA INFOTECH LTD.                     ..... Respondent

Advocates who appeared in this case:
For the Appellant :  Mr.Rakesh Tikku, Senior Advocate with
                     Mr.Amit and Mr.Himanshu R. Singh

For the Respondent   :        Mr.Munindra Dwivedi with Ms.Preeti Yadav

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (ORAL)

1. This appeal is directed against the judgment and decree dated 11 th

December, 2002 whereby a decree for recovery of Rs.2,35,110/- along with

interest on that amount @ 18% from 29.4.1998 to 28.4.2001 and @ 12% per

annum thereafter and proportionate cost was passed in favour of the respondent

and against the appellant. The facts giving rise to the filing of the appeal can be

summarized as under:

The appellant placed an order with the respondent for supply of certain

software items. The price for those items was Rs.2,76,600/- Some advance

payment was also made by the appellants to the respondent. All the three

softwares items were duly delivered to the appellants. The goods were, however,

not acceptable to the appellants and were returned to the plaintiff/respondent. The

case of the plaintiff/respondent is that those goods were re-delivered to the

appellants/respondent, whereas the case of the appellants is that the goods were

never re-supplied to them.

2. The invoices filed by the plaintiff/respondent indicate that the goods were

sent to the appellant through Prakash Air Freight. The numbers of consignment

notes as well as their dates have been given on the invoices, however, there is

absolutely no evidence produced by the plaintiff/respondent to prove the actual

delivery of the goods purporting to have been sent through the said courier vide

consignments, particulars of which have been detailed on the invoices. No one

from Prakash Air Freight has been produced to prove the delivery of the

consignments to the appellants. Even the consignment notes have not been filed

during the course of trial though their numbers were recorded in the invoices.

Since the appellants had denied the receipt of goods, it was incumbent upon the

plaintiff/respondent to prove the delivery of goods to the appellant. This could

have been easily done by producing the consignment notes and an official from

Prakash Air Freight to prove the delivery of the consignments to the appellants.

That having not been done, it can hardly be disputed that the plaintiff/respondent

failed to discharge the onus placed on it to prove the delivery of the consignments

to the appellants/defendants. In fact, no documentary evidence at all was produced

by the plaintiff/respondent to prove the delivery of the goods to the appellants.

3. A perusal of the judgment passed by the learned Trial Judge would show

that he drew an adverse inference against the appellants on account of their failure

to reply to the notice of demand received from the plaintiff/respondent. I find that

not only a notice, a number of reminders were also sent by the plaintiff/respondent

to the appellants from time to time demanding the suit amount from them. There is

ample proof of the service of notices as well as those reminders upon the

appellants. It is also not in dispute that there is statutory presumption of service of

the notices/reminders sent by registered post. The A.D. cards bearing stamp of

appellant No.1 are also on record. These documents are sufficient to prove service

of notice of demand and several reminders upon the appellants. But in my view,

mere failure of the appellants to respond to the notice and reminders was not

enough to prove the case of the plaintiff/respondent. The receipt of the goods

having been denied by the appellants, the plaintiff/respondent ought to have proved

such delivery by appropriate documentary and/or oral evidence. The failure to

respond to the demand notice and reminders could have been used as a

corroborative circumstance, had the plaintiff/respondent produced some other

evidence to prove the delivery of the goods to the appellants/defendants. But, in the

absence of any evidence to prove the supply of goods in question, to the appellants,

there is no escape from the conclusion that the plaintiff/respondent failed to prove

supply of goods in question to the defendants/appellants.

4. Since I have taken a view that the delivery of the goods to the appellants

does not stand established, I need not consider the contention of the learned

counsel for the appellants with respect to the competence of the person who had

signed and verified the pleadings and instituted the suit as well as the authority of

the person who deposed on behalf of the plaintiff/respondent.

5. Since the plaintiff/respondent has failed to prove the supply of goods, the

decree for recovery of price of such goods could not have been passed. The

impugned judgment and decree are, therefore, set aside. The appeal stands

disposed of.

There shall be no order as to costs. TCR be sent back.

V.K. JAIN, J JULY 10, 2012 'raj'