Dewan Automobiles And Anr. vs M/S. Birla Yamaha Ltd.
2014 Latest Caselaw 1027 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.114/2012

%                                                   25th February, 2014

DEWAN AUTOMOBILES AND ANR.                ......Appellants
                Through: Mr. Suresh Sharma, Advocate.

                          VERSUS


M/S. BIRLA YAMAHA LTD.                                    ...... Respondent
                  Through:               Mr. Amarjit Singh, Advocate.

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


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This Regular Second Appeal under Section 100 of Code of

Civil Procedure, 1908 (CPC) is filed against the judgment of the first

appellate court dated 29.2.2012 by which the appellate court set aside the

judgment of the trial court dated 8.3.2010. Trial court had dismissed the suit

for recovery of Rs.1,07,373.50/- and the appellate court allowing the appeal

has passed a money decree of the suit amount in favour of the

respondent/plaintiff.



RSA No.114/2012                                                 Page 1 of 5
 2.             The relevant observations of the first appellate court are

contained in para 12 of the impugned judgment and which reads as under:-

     "12.       After hearing the arguments and going through the record, I
     find that in the present case, the admitted facts are that defendant no.1
     was appointed as a dealer by plaintiff, Generator sets were supplied by
     the plaintiff to the defendant. The defendant was making payment by
     drafts or cheques. It is also admitted that the plaintiff was maintaining
     the account of the defendant in its account books. The disputed facts are
     that the plaintiff supplied 40 generator sets which were not saleable.
     The same were returned but were not credited. The spare parts were
     also returned but were not credited. The plaintiff supplied certain
     generator sets to DTDC. The bills of the same were directly raised with
     DTDC by the plaintiff but the amount is claimed from the defendant. It
     is important to note here that there is one document Ex.DW1/D proved
     by the defendant himself and according to this document, there was an
     outstanding against the defendant as on 31.1.1996 of Rs.2,09,948 and
     credit balance of Rs.3,219.50 and the balance comes to Rs.2,06,728.50.
     Thereafter, there are certain issues raised by the defendant regarding
     amount of 40 generator sets which were returned. The payment of
     Rs.64,499/- was made when generator sets were sent for replacement to
     M/s. Rajiv Kumar and 10% discount was to be given. 10% additional
     commission of 11 generator sets supplied to DTDC i.e. Rs.21,124/- and
     then advertisement claim of Rs.13,285/- and the commission. This
     document itself mentions at point C that no further claim pending
     besides the above. From this statement, it is clear that the defendant
     agrees that the balance as on 31.1.1996 was Rs.2,09,948/- i.e. 7th entry
     from the bottom on 4th page of Ex.PW1/B, meaning thereby that the
     defendant has not disputed the amount till that date. Therefore, in my
     opinion, the observation by the learned Trial Court that Ex.PW1/B is
     shrouded with suspicion or that it cannot be relied upon, cannot be
     upheld, particularly, when the defendant is admitting the same in
     Ex.DW1/D. It is important to note that the defendant is claiming the
     adjustment of payment of 40 generator sets returned and this statement
     of account Ex.PW1/B on page 2 shows that the plaintiff has credited the
     amount of Rs.6,4,499/- in the account of the defendant. The
     advertisement claim of Rs.13,285/- has also been credited in the
     account of the defendant on 22.9.1995. So far as the other claims are
RSA No.114/2012                                                   Page 2 of 5
   concerned, those are disputed claims and there was no written
  agreement between the parties for adjusting the same. Even otherwise,
  according to Ex.DW1/D, claims at serial nos.1,2,4,5 and 6 wee to be
  decided later on upto 15.3.1996, which were never reconciliated
  thereafter. So far as the return of other guarantors sets is concerned,
  document Ex.DW1/A itself shows that the defendant has received the
  replacement for those generator sets and the other 40 generator sets had
  already been credited in the account of the plaintiff. Under the
  circumstances, in my opinion, the Trial Court should have relied upon
  statement of account instead of asking for the invoices. The onus was
  upon the defendant to establish its claim regarding the generators and
  the commission which has not been produced and no benefit of the
  same can be given to the defendant. In this regard, I fully agree with
  the learned Counsel for the appellant that the statement of account once
  admitted and without claiming that there was fraud played by the
  plaintiff/appellant in regard, the same cannot be disbelieved or
  reopened. From the account statement Ex.DW1/D placed on record, it
  is evident that the plaintiff was entitled to recover Rs.2,06,728.50. The
  statement of account Ex.PW1/B clearly shows that the amounts against
  various heads which were disputed by the respondent had duly been
  credited. So far as the raising of bill regarding supply of generator sets
  to DTDC is concerned, the same was raised by respondent himself in
  Ex.DW1/D. If the statement of account Ex.PW1/B is seen along with
  Ex.DW1/D, then it is clear that the statement of account Ex.PW1/B has
  been properly maintained and is also admitted. Therefore, the appellant
  had only adjusted the security amount deposited with it and also the
  interest which accrued on it. In view of this position, in my opinion,
  learned Trial Court failed to consider the mater evidence available on
  record. The order of Trial Court is, therefore, set aside. Suit of the
  appellant is decreed for a sum of Rs.1,03,373.50/- along with cost
  against respondents. So far as interest is concerned, no document has
  been placed on record that the appellant was entitled to 20% interest on
  the amount. Hence, an interest of 9% per annum is allowed on the
  decretal amount from the date of institution of suit till its realization.
  Decree sheet be prepared accordingly. Copy of this order along with
  Trial Court record be sent back. Appeal file be consigned to Record
  Room."                         (underlining added)


RSA No.114/2012                                                 Page 3 of 5
 3.           A reference to the aforesaid para shows that the first appellate

court has relied upon the document admitted and filed by the

appellant/defendant itself and which showed a particular amount admitted to

be due by the appellant/defendant. This document is Ex.DW1/D. Appellate

court also notes that with respect to the return of generator sets as claimed

by appellant/defendant the appellant/defendant had got the credit and the

appellant/defendant had also got credit for advertisement expenses incurred

by him. Therefore, the amount which was due after giving all required

adjustments to the appellant/defendant, has been decreed in favour of the

respondent/plaintiff.

4.           Learned counsel for the appellant argues before me two aspects.

First is that the witness who appeared for the respondent/plaintiff, PW1 Sh.

Naresh    Mongia        admitted   that   he   was   not   employed    by      the

respondent/plaintiff at the relevant point of time and consequently it is

argued on behalf of the appellant before me that his entire evidence is

useless and consequently the suit should have been dismissed.           Second

aspect which is urged is that since the respondent/plaintiff failed to prove the

invoices, the suit should have been dismissed.

5.           Both the aspects argued before me are without any substance

inasmuch as sale of goods is not only proved through the invoices or the
RSA No.114/2012                                                  Page 4 of 5
 statement of a witness, but the same can equally be proved by other

documents such as the document of the appellant/defendant itself

Ex.DW1/D.      It is well settled law that nothing can be better than an

admission to prove a case and which has so happened in this case. Appellate

court has rightly relied upon the admitted document Ex.DW1/D as also the

statement of account filed by the respondent showing that necessary

adjustments as claimed by the appellants/defendants have been given to

them and for the balance due a decree has been passed.

6.           In view of the above, no substantial question of law arises and

the appeal is therefore dismissed, leaving the parties to bear their costs.




FEBRUARY 25, 2014                              VALMIKI J. MEHTA, J.

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