Exquisite Decors P. Ltd. vs Bakelite Hylam Ltd.
2015 Latest Caselaw 8992 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 3rd December, 2015

+                                RFA 331/2004

       EXQUISITE DECORS P. LTD.                   ..... Appellant
                    Through: Mr. Ripin Sood, Adv.

                                 Versus

    BAKELITE HYLAM LTD.                         ..... Respondent

Through: Mr. P.S. Bindra, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC) impugns the judgment and decree dated 23 rd September, 2003

of the Court of Smt. Sunita Gupta, Additional District Judge (ADJ), Delhi

decreeing Suit No.351/1998 filed by the respondent for recovery of

Rs.4,97,532/- comprising of principal amount of Rs.1,51,537/- towards the

price of goods sold and delivered and Rs.1,07,537.22 on account of sales tax

not re-imbursedand balance towards interest together with future interest @

9% per annum from the date of filing of the suit till realisation.

2. Notice of the appeal was issued and vide ex-parte ad-interim order

dated 2nd June, 2004, subject to the appellant depositing the decretal amount

in this Court, the execution of the impugned judgment and decree was

stayed. The appellant on 21st July, 2004 stated that the decretal amount had

been deposited in the Trial Court. The same was ordered to be kept in a

fixed deposit. The appeal, on 19th July, 2006 was admitted for hearing and

was dismissed in default of appearance of the appellant on 10 th April, 2012.

On application of the appellant, the appeal was restored to its original

position. The counsels have been heard.

3. Though in the suit, the following issues were framed on 8 th April,

1999:

"(i) Whether the plaintiff is a duly incorporated and the plaint has been signed and verified by a duly authorised person?

OPP

(ii) Whether the suit is within limitation? OPP

(iii) Whether the price settled between the parties was inclusive of Central Sales Tax? OPD

(iv) To what amount, if any, is the plaintiff entitled? OPP

(v) Whether the plaintiff is entitled to claim any interest? If so, at what rate and to what amount? OPP

(vi) Relief."

but the counsel for the appellant has raised the following three

contentions only; (A) that the learned ADJ has erred in deciding Issue No.(i)

in favour of the respondent/plaintiff; the respondent/plaintiff failed to prove

that the plaint in the suit had been signed and verified and the suit had been

filed by a duly authorised person on behalf of the respondent/plaintiff; (B)

that though the sole witness of the respondent/plaintiff in his cross-

examination stated that he could not tell which of the invoices claimed to

have been raised by the respondent/plaintiff on the appellant/defendant had

remained unpaid and the learned ADJ erred in decreeing the suit on the basis

of the statement of account and which is not permissible under Section 34 of

the Indian Evidence Act, 1872; and, (C) that the learned ADJ has wrongly

drawn adverse inference against the appellant/defendant.

4. In view of the aforesaid limited nature of the controversy, it is not

deemed appropriate to set out the facts in detail and / or the evidence thereon

and the findings of the learned ADJ with respect thereto in detail and which

all is exhaustively dealt with in the judgment of the learned ADJ.

5. The counsel for the appellant/defendant on the first of the aforesaid

contentions has invited attention to the Power of Attorney executed by the

respondent/plaintiff in favour of the signatory to the plaint and has

contended that the same authorised only signing of the plaint and not the

institution of the suit and thus the suit was not proved to have been instituted

by a duly authorized person on behalf of the respondent/plaintiff.

6. I am unable to agree. Clauses 1 to 4 of the said Power of Attorney are

as under:

"1. To sign plaints, affidavits, vakalat and other papers for filing suits.

2. To appear and plead on behalf of the Company.

3. To give evidence and to obtain monies from the Courts.

4. To file Execution Petition/ Applications and Recovery Proceedings and to give receipt for monies recovered."

In my view, the words, "to sign plaints...for filing suits" is wide

enough to encompass a power to institute the suit as well. Not only so, the

same is reiterated in Clause 4 supra with respect to filing not only of

execution petition but also of recovery proceedings. Similarly, the recital to

the said Power of Attorney also provides that the Attorney was being

appointed to do all "acts, deeds, matters in respect of filing suits including

criminal complaints (suits) against M/s. Le-Exquisite (P) Ltd.". It thus

cannot be said that the suit on behalf of the respondent/plaintiff was not

instituted by a duly authorised person. Not only so, if one minutely looks at

Issue No.(i) framed in the suit, the same is also with respect to signing and

verification of the plaint and not with respect to the institution of the suit.

7. On the second of the aforesaid contentions, the counsel for the

appellant/defendant has again invited attention to the cross-examination of

the sole witness of the respondent/plaintiff where he has stated that the suit

is based on statement of account; that the appellant/defendant was

maintaining a running account with the respondent/plaintiff; that he could

not say which particular invoices raised by the respondent/plaintiff were

unpaid.

8. I however find the respondent/plaintiff to have also, besides statement

of account, proved all the invoices reflected therein. Thus, though the

witness of the respondent/plaintiff stated that the suit was based on statement

of account but it cannot be said that the respondent/plaintiff had failed to

prove its claim by primary evidence i.e. of invoices. What the witness of the

respondent/plaintiff meant, if one sees the cross-examination in entirety, is

that the outstanding claimed was on the basis of statement of account. I

have in this regard also perused the examination-in-chief as well as cross-

examination of the sole witness of the appellant/defendant and do not find

the said witness to have contradicted any of the invoices or any of the entries

and particulars in the statement of account proved by the

respondent/plaintiff. Rather, the witness of the appellant/defendant admitted

that "the material ordered was delivered by the plaintiff in batches

depending upon availability with them. The material was delivered against

challan. Later on, invoices were sent to our office through their delivery

boys. On our behalf, we made „on account‟ payment from time to time".

All that the said witness deposed with respect to the error, if any in the

invoices and / or the statement of account was that the respondent/plaintiff

had subsequently started sending invoices reflecting rates much higher than

those agreed on, however without specifying the invoices in which the rate

higher than as agreed on was charged and without deposing that any protest

at the contemporaneous time was lodged with respect thereto.

9. There is thus no merit in the second contention also of the counsel for

the appellant/defendant.

10. As far as the third contention is concerned, the counsel for the

appellant/defendant has contended that the learned ADJ in the impugned

judgment has also drawn adverse inference against the appellant/defendant

for not replying to the legal notice got sent by the respondent/plaintiff prior

to the institution of the suit, when the appellant/defendant had replied to the

legal notice.

11. The counsel for the appellant/defendant is however unable to tell as to

how the same affects the outcome of the suit. As aforesaid, the

respondent/plaintiff is found to have proved the monies, for recovery of

which the suit was filed, to be due from the appellant/defendant de hors the

said adverse inference also by proving the invoices and the statement of

account and the appellant/defendant has failed to prove any error therein.

12. Else, I have examined the judgment of the learned ADJ vis-a-vis the

Trial Court record requisitioned in this Court and agree in toto therewith.

13. There is thus no merit in the appeal which is dismissed with costs.

The counsel‟s fee assessed at Rs.15,000/-.

14. Decree sheet be drawn up.

15. The decretal amount lying deposited in the Trail Court together with

interest, if any accrued thereon be now released to the respondent/plaintiff.

RAJIV SAHAI ENDLAW, J

DECEMBER 3, 2015 „bs‟..