Nk Sales Corporation Thru Its ... vs Amit Babbar
2014 Latest Caselaw 6107 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: November 24, 2014

+     RSA 359/2014
      NK SALES CORPORATION THROUGH: ITS PROPRIETOR
                                               ..... Appellant
                   Through: Mr. Tarun Rana, Advocate

                          versus

      AMIT BABBAR                                          ..... Respondent
                          Through:     Nemo.

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% ORAL

C.M.No.19329/2014 (u/S 151 CPC)

Allowed subject to all just exceptions.

C.M.No.19330/2014 (u/S 151 CPC)

For averments made in paragraph No. 1 of this application, which is supported by affidavit of counsel for appellant, it is allowed and delay of thirty days in re-filing the accompanying appeal is condoned.

Application is disposed of.

RSA 359/2014 &CM No.19328/2014

The concurrent findings returned against appellant-defendant are that its proprietor is liable to pay the decretal amount with interest on account of the goods delivered against the bill (EX. PW-1/A). The factual

RSA No.359/2014 Page 1 details are already noted in the impugned judgment and need no reiteration.

At the hearing, it was submitted by learned counsel for appellant that the suit of respondent-plaintiff is based upon the bill (EX. PW-1/A) and the courts below have relied upon the aforesaid bill to decree the suit of respondent-plaintiff against appellant-defendant.

At the hearing of this appeal, it was strongly contended by learned counsel for appellant-defendant that in the written statement as well as in the evidence, there is denial of receiving the bill (Ex. PW-1/4) and the onus to prove this bill has been wrongly put on appellant-defendant whereas the onus was on respondent-plaintiff and so, the findings returned against the appellant-defendant are perverse.

It is also the stand of appellant-defendant that some material was supplied against a cheque of `10,000/- but the said cheque was not given by appellant-defendant towards part payment of the bill in question. However, it is clarified that the payment of `10,000/- was by way of cash but it is conceded that there was no bill against which payment of `10,000/- in cash was made.

Upon hearing and on perusal of the impugned judgment, trial court judgment and the material on record, I find that it is evident from the bill (Ex.PW-1/A) that in token of receipt of goods against this bill, there are initials of an employee of appellant-defendant and there is no cross- examination of respondent-plaintiff in respect of the initials appearing on the bill (Ex. PW-1/A). In such a situation, the onus shifts upon the appellant-defendant.

According to appellant-defendant the payment of `10,000/- was in

RSA No.359/2014 Page 2 respect of some supply of goods but appellant-defendant has failed to prove against which bill the said payment was made.

In view of the aforesaid, this Court is of the considered opinion that the concurrent findings returned against the appellant do not suffer from any perversity and no substantial question of law arises in this second appeal. Consequently, this appeal and application are dismissed with no order as to costs.

                                                        (SUNIL GAUR)
                                                          JUDGE
NOVEMBER 24, 2014
r




RSA No.359/2014                                                      Page 3