Delhi High Court
M/S Sharma Enterprises &Anr; vs Sh. Surinder Arora on 22 January, 2015
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.187/2014 & C.M. No.12017/2014
Decided on : 22nd January, 2015
M/S SHARMA ENTERPRISES &ANR ..... Appellants
Through Mr.Kuldeep Kumar, Adv.
versus
SH. SURINDER ARORA ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
R.S.A. No.187/2014
1. I have heard learned counsel for the appellants. It has been
contended by learned counsel for the appellants that the Trial Court as
well as the First Appellate Court suffers from perversity inasmuch as
the First Appellate Court and the Trial Court have not taken note of
the two credit notes by virtue of which the goods were returned. The
learned counsel has taken the court through the evidence as well as
through the orders passed by the First Appellate Court.
2. I do not agree with the contention of the learned counsel for the
appellants that there is any perversity in the finding of fact recorded
by the concurrent finding of facts. This would be evident from
perusal of the appellate court's order itself. In this regard, instead of
repeating the order of the First Appellate Court, it may be pertinent
here to reproduce the findings recorded by the First Appellate Court
with regard to issue nos.1 & 2. The said order reads as under:-
Whether the plaintiff is entitled for decree of
Rs.63,297/- along with interest @ 18% per annum
as prayed in the suit? OPP
Relief.
11. The suit of the plaintiff is based on the following
bills/invoices:-
(i) Invoice No.2978 dated 24.11.2006 for
Rs.13,600/- as Ex.PW-1/3.
(ii) Invoice No.3015 dated 29.11.2006 for
Rs.10,780/- as Ex.PW-1/4.
(iii) Invoice No.3078 dated 6.12.2006 for
Rs.29,090/- as Ex.PW-1/5.
12. There is no dispute raised by defendant No.1
regarding supply of goods by the plaintiff by means of these
three invoices.
13. In respect of bill No.2978 dated 24.11.2006 for
Rs.13,600/- (Ex.PW-1/3), the defendant No.1 took a
specific stand that he has made payment of Rs.12,100/-
against this bill through cheque bearing No.029171 date
31.1.2006 drawn on Punjab National Bank, PW-2 who is
the Account of the plaintiff firm in his cross examination
has admitted copy of the tax invoice Ex.PW-2/X-5. This
copy of tax invoice Ex.PW-2/X-5 is the copy of bill
No.2978 (Ex.PW-1/3). There is a noting in hand on this
document Ex.PW-2/X-5 which mentions cheque
No.029171 for Rs.12,100/-. The plaintiff however denied
having receiving payment of Rs.12,100/- against the said
cheque. The defendant no.1 claimed that payment against
the said cheque was made to the plaintiff. However in the
event of the plaintiff having denied having received
payment against the said cheque, it was incumbent upon the
defendant No.1 to have produced evidence from his bank
regarding encashment of the said cheque. The best
evidence which would be available to the defendant No.1
regarding the said cheque would be to produce the relevant
record from his banker and to prove encashment of the said
cheque. However, the defendant No.1 did not do so. The
defendant No.1 withheld such evidence which was
available with him in this regard. I therefore have no
hesitation in upholding the findings of the learned Trial
Court that no payment was made by defendant No.1 to the
plaintiff against the invoice No.2978(Ex.PW-1/3).
14. Ex.PW-1/4 Invoice No.3015 dated 29.11.2006 for
Rs.10,780/- is for two Semi Auto washing machines
bearing model No.GDW 661 for Rs.4,791/11 each. The
defendant No.1 has contended that the goods under this
invoice were returned vide credit note No.216 dated
31.1.2007 Ex.PW-1/X2 but the same is not reflected in the
statement of account. The said Credit note pertains to one
GDM 26 B Godrej Frost Free refrigerator for Rs.10,568/89.
The goods which are subject matter of Ex.PW-1/4 do not
match with the description of goods which are subject
matter of Ex.PW-1/X2.
15. Ex.PW-1/5 is the invoice No.3078 dated 5.12.2006
for Rs.29,090/-. Ex.PW-1/5 pertains to three refrigerators
bearing Model No.DGR 26B Godrej Frost Free refrigerator
for Rs.10,568/89, GDM 225 ZOP Godrej Direct Cool
refrigerator for Rs.7,688/89 and GDP 195 ZOP Gold Direct
Cool Refrigerator for Rs.7,600/-. The defendant No.1 has
contended that the goods under this invoice were returned
vide Credit Note No.179 dated 5.12.2006 for Rs.24,380/-
Ex.PW-1/X1. The credit note pertains to two Godrej Direct
Cool Refrigerator Model No.GDM 180P ZOP for
Rs.4,7911/11 each. Credit note Ex.PW-1/X1 does not
pertain to invoice Ex.PW-1/5.
16. Ex.PW-1/2 is the statement of account of the
defendant No.1 maintained by the plaintiff. A perusal of
the statement of account reveals that the plaintiff has duly
reflected the credit notes for Rs.24,380/- and for
Rs.11,890/- in the same. Even after adjustment of the said
credit notes, principal amount of Rs.50,137/- is found as
balance outstanding against the defendants. Thus
contention of the defendant No.1 that credit notes were not
at all reflected in the statement of account of the plaintiff
has no merit."
3. The learned First Appellate Court has rightly observed that in a
suit, the civil court has to decide the issues on the basis of
preponderance of probability and not by the question of beyond
reasonable doubt. In the instant case, both the learned Trial Court as
well as the First Appellate Court have upheld the claim of the
respondent for recovery of Rs.63,297/- along with interest at the rate
of 18% per annum only on the basis of preponderance of probability.
4. Having regard to the aforesaid facts and circumstances, I do not
feel that this is a case which involves any substantial question of law.
5. Accordingly, the appeal is dismissed.
C.M. No.12017/2014
1. In view of the dismissal of the appeal, no further directions are
called for on this application.
2. Dismissed.
V.K. SHALI, J
JANUARY 22, 2015/aa
