State Of Haryana And Anr. vs K.L.Shroff
2012 Latest Caselaw 1518 Del

$~R-31
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Decision: March 5, 2012

+                       RFA(OS) 67/2007

     STATE OF HARYANA AND ANR.            ..... Appellants
         Represented by: Mr.Manish K.Bishnoi, Advocate.

                   versus
     K.L.SHROFF                             ..... Respondent
          Represented by: Mr.J.S.Bakshi, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

%

1. At the outset we express our displeasure at the manner in which memorandum of appeals are being filed and thereafter argued in this Court.

2. Suffice would it be to state that after trial is completed in a civil suit, evidence relating to issues emerges in the form of the testimonies of the witnesses examined and documents proved, which documents are assigned exhibit marks. When memorandum of appeal is drafted, an reference has to be made to a document, the same has to be in the context of the exhibit mark assigned and not annexures being referred to in the memorandum of appeal.

Page 1 of 8 RFA(OS) 67/2007

3. The memorandum of appeal in the instant case refers to 20 annexures, some of which are orders passed in the suit. The others are letters or reports. What is the exhibit mark of the documents filed, learned counsel for the appellant in the instant case knows nothing about, and indeed this is the fate in virtually nine out of ten appeals being heard by us.

4. It is settled law that appeals have to be argued with reference to the record of a suit and in relation to a document the same has to be with reference to proved documents and not that any document is filed along with the memorandum of appeal and arguments advanced.

5. Learned counsel for the appellant has repeatedly sought to argue the appeal on the strength of Annexure-E, which we find is an audit note, and when questioned as to what is the exhibit number of the document, the learned counsel states that the same is an unexhibited document. Thus, we ignore the contents of Annexure-E because we are compelled by law to do so. Even otherwise, unilateral audit reports, based on stated inspections are meaningless unless the opposite party was associated with the report and had concurred with its contents.

6. K.L.Shroff Family Trust, carrying on printing work in the name and style 'M/s.Nu Tech Photo Lithographers' had obtained a job of printing lottery tickets from the State of Haryana for the period April 1, 1985 to March 31, 1986 and April 1, 1986 to March 31, 1987. The print order pertained to Lotteries in the name of 'Hari Om', 'Shri Ganesh', 'Jai Durge'

Page 2 of 8 RFA(OS) 67/2007 and 'Maha Lakshmi' pertaining to the 9th to 25th draw, 72nd to 128th draw, 1st to 73rd draw and 388th to 445th draw respectively.

7. As per the contract, print orders with advance delivery of reams of paper had to be effected by the State of Haryana. The same had to be effected 21 days prior to date of supply of tickets. State of Haryana had to depute a person to supervise the printing of the lottery tickets.

8. Stating that it had completed the work and during which1322 reams of paper, being not supplied by State of Haryana, were utilized by the Trust and further alleging short payments as also non-payments and additionally pleading delayed payments, the trustee of the trust filed a suit seeking recovery of `24,53,445.61. The break-up of the sum was indicated in Annexure-J to plaint which reads as under:-

"Summary of dues from Haryana State Lotteries, Chandigarh as on 15.12.88 Short payments of our Bills :

     Against Mahalakshmi          :    Rs.2,81,600.65
     Against Jai Durge            :    Rs.5,80,800.00
     Against Shri Ganesh          :    Rs.3,30,880.00
                                       ______________     11,93,280.65
     Outstanding Bills :

     Bill No.618, Dt.: 29.10.85
     43rd Jai Durge               :    Rs.42,240.00

     Bill No.181, Dt.28.5.86
     73rd Jai Durge               :    Rs.42,240.00
             Page 3 of 8                                RFA(OS) 67/2007
 Bill No.840, Dt.21.12.85
420th Mahalakshmi               :   Rs.35,200.00
                                    ____________       1,19,680.00

Outstanding supply of paper:

Value of 1322 Reams (as per
statement attached)
@ Rs.136/-per ream.             :   Rs.1,82,436.00

Interest @ 18% PA upto
15.12.88

A - On short payment
     Against Jai Durge          :   Rs.2,78,065.45
     Against Mahalakshmi :          Rs.1,35,988.80
     Against Shri Ganesh        :   Rs.1,60,021.20
                                    ______________      5,74,075.45
B- On late payment:
     Against Jai Durge          :   Rs.63,227.81
     Against Mahalakshmi :          Rs.49,934.38
     Against Hari Om            :   Rs.   814.88
     Against Shri Ganesh        :   Rs.31,557.22
                                    _____________     1,45,534.29
C-    On outstanding Bills:
     Against Jai Durge 43rd :       Rs.15,623.00
     Against 73rd Jai Durge :       Rs.18,747.60
     Against 420th Maha-
     Lakshmi                    :   Rs.18,643.45
                                    _____________       53,014.05

          Page 4 of 8                                RFA(OS) 67/2007
      D- For late/Non-Receipt
        of Paper:
       Against all lotteries   :    Rs.1,85,425.17   1,85,425.17

                                                ______________
                                   Total =     24,53,445.61"
                                                ______________

9. Decreeing the suit but not granting interest claimed @18% p.a., even for the pre-suit period, for the said period as also pendente lite and future period, interest has been awarded @9% p.a.

10. A perusal of the impugned judgment and decree would reveal that on the subject of payments being deducted for alleged late delivery of lottery tickets, the learned Single Judge has noted that though a reason was given to deduct the amount, but basis of arriving at the computation was not given.

11. On the subject of delay in delivering tickets, the learned Single Judge has found that the delay was attributable to the State of Haryana on various counts, being: (i) printing paper not being supplied within time, (ii) print order not being delivered prior to 21 days of supply of tickets, (iii) not deputing a person to supervise the printing, (iv) by reckoning time for delivery from the date of printing order and not from the date it was delivered, and lastly, (v) by not taking delivery of the printed tickets. Thus, the amount deducted has been held to be payable.

12. On the subject of no lottery tickets being delivered in respect of 3 bills, for which `1,19,680/- was claimed, the

Page 5 of 8 RFA(OS) 67/2007 learned Single Judge has noted that the evidence establishes said three bills being raised upon State of Haryana and receipt of the said bills. The learned Single Judge has further noted that there is evidence of lottery tickets pertaining to the said bills been delivered to the State of Haryana and has thus concluded that payment under the said 3 bills has to be paid.

13. With respect to 1322 reams of paper allegedly/statedly used by the trust for printing lottery tickets, the learned Single Judge has discussed the evidence under issues No.7 and 8. The learned Single Judge, with reference to the size of the tickets evidenced from Ex.PW-1/114, has noted that 25340 reams would be used and with reference to Ex.PW-1/105 has noted that only 24017 reams and 276 sheets of paper were supplied. The learned Single Judge has further noted Ex.PW-1/104 and PW-1/105 being the statements relied upon by the trust and has concluded that the evidence establishes that the number of reams delivered was less as proved by the plaintiff. The learned Single Judge has noted that 36,80,00,000 tickets were supplied Thereafter, the learned Single Judge has noted the evidence pertaining to the price of paper and has thus concluded that the sum claimed i.e. `1,82,436/- was correctly claimed.

14. With respect to the bills raised, goods delivered and payments realized, the learned Single Judge has found that there was a delay in making payments from time to time and for which findings the learned Single Judge has considered the

Page 6 of 8 RFA(OS) 67/2007 evidence of the three witnesses of the appellant at pages 27 to 29 of the impugned judgment. The learned Single Judge has thereafter noted the evidence of the sole witness of the respondent on the issue.

15. It is to rebut this finding of the learned Single Judge that learned counsel for the appellant repeatedly refers to Annexure-E to bring home that the paper supplied was adequate and that there was delay by the respondent, a document which is worthless for the reasons noted herein above.

16. In a nutshell, the principal sum claimed i.e. money not paid under 3 bills, money wrongly deducted on account of delay in delivery of goods and price for 1322 reams has been held payable. Interest on delayed payments has also been held payable.

17. With respect to the rate at which interest would be paid, the learned Single Judge has noted that the plaintiff led no evidence to prove the commercial rate of interest at the relevant time and has thus decreed interest @9% p.a.

18. We thus dismiss the appeal.

19. Since the appeal has been dismissed, `14,95,396/- deposed by the appellant, which was received by the respondent would now be liable to be appropriated absolutely by the respondent. Thus, we direct that the security furnished by the respondent is discharged requiring the Registrar General Page 7 of 8 RFA(OS) 67/2007 or any other officer of this Court to make an endorsement on the title deed of the property furnished as security and endorse that the property is free from any charge.

20. No costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE

MARCH 05, 2012 'dc'

Page 8 of 8 RFA(OS) 67/2007