Vijay Sirohi vs Sh. Sushil Sharma
2014 Latest Caselaw 1174 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.127/2013

%                                                       5th March, 2014

VIJAY SIROHI                                     ......Appellant
                          Through:       None.


                          VERSUS


SH. SUSHIL SHARMA                                       ...... Respondent
                          Through:       None.

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


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. Nos. 10124/2013 (condonation of delay in filing) and 10126/2013
(condonation of delay in re-filing)

1.           For the reasons stated in the applications, delay in filing and re-

filing the appeal is condoned.

             C.Ms stand disposed of.

+ RSA No.127/2013

2.           No one appears for the appellant although it is 12.10 P.M.

Even on the last effective date i.e 24.7.2013, no one appeared for the

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 appellant. No presence is also recorded for the appellant on 22.11.2013

when the learned Single Judge was not holding the Court.

3.           This Regular Second Appeal is filed under Section 100 of Code

of Civil Procedure, 1908 (CPC) impugning the concurrent judgments of the

courts below; of the trial court dated 8.11.2010 and the first appellate court

dated 11.10.2012; which have decreed the suit for recovery filed by the

respondent/plaintiff. Trial court had awarded a sum of Rs.64,000/- towards

damages but the first appellate court reduced the amount to Rs.32,000/- and

therefore the net decree passed is of Rs.88,394/- instead of Rs.1,20,394/- as

passed by the trial court.

4.           Before adverting to the facts of the case, it requires to be noted

that the appellant/defendant did not file any written statement and did not

lead evidence. Even the witnesses of the respondent/plaintiff are not cross-

examined.

5.           Respondent/plaintiff is a transporter and he filed the subject suit

for recovery on account of the claim towards transportation, demurrage etc

for transporting the goods of the appellant from Delhi/Okhla to Muzuffar

Nagar. No further transportation as requested by the appellant/defendant

could take place to Kotdwar in Uttaranchal because the respondent/plaintiff

did not have permit for Uttaranchal. The claim by the respondent/plaintiff is
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 therefore on account of detention of his trucks with the goods of the

appellant at Muzuffar Nagar and all other related claims thereto.

6.            The relevant facts are stated in para 2 of the impugned

judgment of the first appellate court and which reads as under:-

     "2. Brief facts of the case are that the plaintiff/respondent filed a suit
     for recovery of Rs.1,20,394/- against the defendant/appellant stating
     that the plaintiff is running the proprietorship business of
     transportation in the name and style of M/s Balaji Roadlines at A-64,
     Mandir Mohalla, Samepur, Opp. Petrol Pump, Delhi and defendant
     was having business dealing with the plaintiff and the plaintiff used to
     transport goods of defendant from time to time. As stated plaintiff is
     also maintaining a running account of the defendant. As stated on
     23.6.04 defendant approached the plaintiff at his office and requested
     for two trucks for transportation of goods from Okhla to Muzuffar
     Nagar. Accordingly goods were loaded in trucks baring no.UP-12
     A/5395 and UP 12B/3542 from Okhla, New Delhi to Muzuffar Nagar
     on 23.6.04 and after one week of loading of the goods in the trucks the
     defendant told the plaintiff to transport the goods to Kotdwar without
     any required documents i.e. bill and form no.31. The plaintiff was not
     having permit for Uttaranchal so the plaintiff showed his inability to
     transport the goods to Uttaranchal, hence plaintiff requested the
     defendant to transport the goods through other trucks having permit for
     Uttaranchal and requested for unloading of the truck and make
     payment of damages as well as outstanding amount of Rs.46,194/-.
     The plaintiff also sent two telegrams on 2.7.04 and 5.7.04 claiming
     Rs.1,000/- per day per truck as damages and Rs.2,000/- towards
     unloading of trucks from the defendant but to no avail. The plaintiff
     sent a written complaint dated 6.7.04 to the concerned SHO P.S.
     Samepur Badli and on 31.7.04 to DCP Ashok Vihar. A godown for
     also taken on rent @ 5,000/- per month for keeping the goods of the
     defendant and plaintiff even got a legal notice dated 3.8.04 but the
     same was received back unserved. Thereafter reminder was sent
     which was duly served but the defendant in connivance with the local
     police had threatened to get the delivery of the aforesaid goods without
     making any payment to the plaintiff. Hence the instant suit was filed."
RSA No.127/2013                                                    Page 3 of 5
 7.             As already stated above, the first appellate court reduced the

claim towards damages from Rs.64,000/- to Rs.32,000/- and had modified

the decree by reducing the decretal amount from Rs.1,20,394/- to

Rs.88,394/-.

8.             The relevant observations of the first appellate court are

contained in para 7 of the impugned judgment and which reads as under:-

     "7. There is no defence of the defendant on record because written
     statement has not been filed. Issues have also not been farmed and no
     evidence was led by the defendant. The testimony of the plaintiff has
     remained unrebutted and unchallenged. No statement of account has
     been placed by the defendant on record to controvert the claim of the
     plaintiff. The complaint Ex. PW-1/33 and 34 alongwith notice Ex.
     PW-1/43 are throwing light on the controversy and all the pleas of the
     plaintiff has fallen to the deaf ears of the defendant. The balance sheet
     Ex. PW-1/1 clearly shows the balance outstanding as on 10.12.03 as
     Rs. 46194/-. Not even a single question has been put by the defendant
     in cross examination even despite opportunity and the case of the
     plaintiff is deemed to be admitted by the defendant. The rent receipt
     Ex.PW-1/35 to Ex. PW-1/42 are also available on record but the
     plaintiff has restricted is claim for two months only to the tune of Rs.
     10,000/-. Though there is no proof to show the expenditure towards
     unloading of trucks to the tune of Rs. 2,000/- but the plaintiff is
     entitled for certain amount for loading and unloading of the trucks
     simultaneously and I do not find any fault regarding decree of the
     amount in favour of plaintiff by Ld. Trail Court. It has been submitted
     that goods remained stocked in the truck itself from 23.6.04 to 24.7.04
     and has relied upon Ex. PW-1/33 and Ex. PW-1/34 complaints made
     to police. There is no proof on the record which can suggest as to how
     much amount was paid with respect to the trucks in question and
     damages have been claimed for Rs. 1,000/- per day per truck for these
     32 days but actual payment made to the trucks have not been proved.
     Hence in these circumstances the oral testimony of the plaintiff cannot
RSA No.127/2013                                                     Page 4 of 5
      be taken as such and some reasonable amount is required to paid. The
     Ld. Trial Court has taken the amount of Rs. 64,000/- on the basis of
     self serving statement of plaintiff not corroborated by any
     documentary proof. The cost incurred in the transportation is also not
     proved. It has been submitted during the course of arguments that
     these trucks were owned by the plaintiff himself, hence in these
     circumstance reasonable damages can be assessed and Rs. 500/- per
     trucks per day is hereby assessed as damages. Accordingly, plaintiff is
     held not entitled to the amount of Rs. 64,000/- but only Rs. 32,000/-
     will suffice. Apart from this I do not find any infirmity or illegality in
     the judgment of Ld. Trial Court which has been correctly decreed
     after the appreciation of the facts and I hereby affirm the some. In
     view of the above discussion the appeal is partly allowed and decree is
     partly modified and instead of decree of Rs. 1,20,394/- a decree of Rs.
     88394/- is hereby passed. The interest awarded by the Ld. Trial Court
     is also not required to be modified. The proportionate cost on amount
     of Rs. 32,000/- is awarded to the appellant in this appeal. Decree sheet
     be prepared accordingly. Trial court record be sent back alongwith
     copy of the judgment. File be consigned to record room."

9.             A second appeal under Section 100 CPC is maintainable if

there is a substantial question of law. In the present case, no substantial

question of law arises especially in view of the fact that the

appellant/defendant filed no written statement and led no evidence whereas

there is unrebutted testimony of the respondent/plaintiff on record.

Accordingly,there is no merit in the appeal, and the same is therefore

dismissed, leaving the parties to bear their own costs.




MARCH 05, 2014                            VALMIKI J. MEHTA, J.

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