M/S. Siemens Ltd. vs M/S. Nova Iron & Steel Ltd.
2012 Latest Caselaw 5628 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.1660/1998

%                                                    18th September, 2012


M/S. SIEMENS LTD.                             ...... Plaintiff
                            Through:     Appearance not given.


                            VERSUS

M/S. NOVA IRON & STEEL LTD.            ...... Defendant
                   Through: Mr. Rahul Sharma, Advocate.

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

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The subject suit was filed by the plaintiff- M/s. Siemens Ltd for

recovery of Rs. 56,44,842.05/-. The suit is filed for recovery of amount

alongwith interest with respect to various machinery and equipments supplied

and details of which are given in para 6 of the plaint. As per para 6 of the

plaint, the total amount of machinery and equipments supplied by the plaintiff

to the defendant comes to approximately Rs. 1.37 crores. In para 10 of the

plaint, the amount which is claimed to be balance due to the plaintiff is only

Rs. 24,35,837.10/-.

2. Defendant filed the written statement and denied its liability on

the ground that machinery and equipments supplied by the plaintiff were

defective.

3. The following issues were framed in this suit on 11.12.2007:-

"1. Whether this Court has no territorial jurisdiction to try and determine the suit? (OPD)

2. Whether the suit is barred by limitation? (OPD)

3. Whether the goods supplied by the plaintiff were not as per specifications? If so, its effect? (OPD)

4. Whether the plaintiff was called upon and required to remove the machinery? If so, its effect? (OPD)

5. Whether the plaintiff is entitled to recover any amount for supply of machinery? If so, the extent thereof? (OPP)

6. Whether the plaintiff is entitled to any interest? If so, at what rate, on what amount and for which period? (OPP)

7. Relief."

Issue No.1

4. Issue No.1 with regard to territorial jurisdiction was held in

favour of the plaintiff by a judgment of learned Single Judge of this Court

dated 28.2.2008.

5. In spite of repeated opportunities, plaintiff failed to lead

evidence. The evidence of the plaintiff was closed vide order dated

27.4.2010. This order has become final as this order has not been challenged

thereafter. As the plaintiff did not lead evidence, the counsel for the

defendant also on the same date i.e. 27.4.2010 made a statement that

defendant also does not want to lead evidence. No doubt, as per the issues

framed, onus of issue Nos.2 to 4 is on the defendant, however, onus of issue

Nos.5 and 6 is on the plaintiff. The onus of these issues was on the plaintiff

inasmuch as it is clear from paras 6 and 10 of the plaint, the plaintiff claims

not the total amount of machinery and equipments supplied but only an

amount of Rs. 24, 35,837.10/-. Therefore, it is clear that as per the plaint

various amounts were paid to the plaintiff and plaintiff has only claimed the

balance due of Rs. 24,35,837.10/- out of amount of approximately Rs. 1.37

crores. The plaintiff therefore had to lead evidence to show how the amount

as claimed in para 10 of the plaint was due to the plaintiff and which is the

subject matter of issue No.5.

6. So far as the aspect of minutes of meeting dated 12.8.1995 as

stated in para 10 of the plaint, the defendant in para 10 of the written

statement has specifically denied that these minutes of meeting were ever

signed by its officer. Defendant has specifically denied these minutes of

meeting. In fact, I find that only a typed copy of these minutes dated

12.8.1995 is on record and which typed copy does not contain signatures

either on behalf of the plaintiff or on behalf of the defendant.

7. In view of the fact that it was the plaintiff which had to lead

evidence and no evidence whatsoever has been led on behalf of the plaintiff,

the plaintiff has failed to prove its case and therefore the suit of the plaintiff is

dismissed by deciding issue Nos.5 and 6 against the plaintiff.

8. Since plaintiff has failed to prove issue Nos.5 and 6, there is no

need to give any decision on issue Nos.2 to 4, onus of which was on the

defendant.

Relief

9. In view of aforesaid, the suit of the plaintiff is accordingly

dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J

SEPTEMBER 18, 2012 Ne