Delhi High Court
Raj Kamal Prakashan Pvt. Ltd. vs Jharkhand Shiksha Priyojna on 29 January, 2015
Author: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29.01.2015
+ CS (OS) No.314 of 2006
RAJ KAMAL PRAKASHAN PVT. LTD. ...... Plaintiff
Through: Mr. Pravin Sharma, Adv.
versus
JHARKHAND SHIKSHA PRIYOJNA ..... Defendant
Through: Mr. Abhijeet Sinha, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This suit has been filed for recovery of Rs.23,14,176/- along with
pendente lite and future interest @ 18 per cent per annum for books
supplied by the plaintiff to the defendant.
Plaintiff's case
2. The plaintiff is a book publisher and the defendant is a project of the
Department of Education, Government of Jharkhand, which was
initiated with a view to encourage education as well as the knowledge of
the Hindi language. Books were ordered by the defendant vide purchase
orders dated 11.10.2004 to be supplied to its various libraries. The
purchase order was honoured by the plaintiff and the details of the books
supplied by them are as under:
S.No. Order No. Dated Bill No. Dated Rupees
1. 2557 11.10.04 BR2452 9.12.04 2,70,595/-
2. 2553 11.10.04 BR2453 9.12.04 2,34,124/-
3. 2551 11.10.04 BR2454 9.12.04 3,86,841/-
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4. 2552 11.10.04 BR2455 9.12.04 3,82,590/-
5. 2554 11.10.04 BR2456 9.12.04 3,50,506/-
6. 2554 11.10.04 BR2602 9.12.04 1,72,380/-
7. 2555 11.10.04 BR2557 9.12.04 1,72,380/-
8. 2556 11.10.04 BR2558 9.12.04 3,44,760/-
TOTAL 23,14,176/-
3. The total value of the books supplied, in varying sets of books to
different libraries of the defendant in Kodarma District of Jharkhand, is
stated to be Rs.23,14,176/-. The books were more or less the same but
the number of sets varied. The cost has not been paid by the defendants
on the ground that the person who placed the order was not competent to
do so. A plea in this regard was taken in the Written Statement (for
short 'WS') for the first time on 6.7.2006 but the books were delivered
and the receipt of the books is not in dispute. The learned counsel for
the plaintiff submits that the WS cannot be taken into consideration as it
has neither been signed nor verified and the affidavit purporting to
support it has been sworn on 5.7.2006, i.e., even before the WS came
into existence, a day later on 6.7.2006. Therefore, he submits that the
said affidavit could not have supported a document which was yet to
come into existence and the said affidavit would be of no value. He
further submits that the plaintiff pursued the non-payment of bills by a
letter dated 13.12.2004. Copy of the receipts and the bills of challans
were deposited in the office of the defendant in order to facilitate
payment for the books. The officers of the defendant assured that the
payment would be released through demand drafts at the earliest.
However, in the absence of any response, a reminder was sent on
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18.2.2005 through post, followed by another on 24.3.2005. A
reminder was again sent on 26.7.2005. Legal notices dated 24.3.2005
and 26.7.2005 too were sent by the plaintiff to the defendant but to no
avail. It is stated by the learned counsel for the plaintiff that before
institution of the present suit, a legal notice was sent yet again on
30.7.2005. There has been no response to any of their letters.
4. The learned counsel for the plaintiff has drawn the attention of this
Court to the defendant's evidence by way of affidavit, wherein Mr.
Sachidand D. Tigga, District Programme Officer (for short 'DPO') of
the defendant has deposed that the plaintiff had supplied the books but
it was so done without following the prescribed procedure and in
collusion with Mr. Raj Narayan Pathak, Assistant Resource Person
(for short 'ARP'), who was not competent to make any purchase; that
the said ARP had cancelled the aforesaid purchase order vide letter
dated 13.12.2004, which was intimated to the plaintiff through
facsimile on 14.12.2004; that simultaneously, all the Block Resource
Co-ordinators (for short 'BRC') were directed not to receive the books
supplied by the publisher; that subsequently, vide letter dated
15.12.2004, the BRC were asked not to receive the books supplied by
the plaintiff; that when this matter was brought to notice of the
authorities, an FIR was lodged against the District Programme Co-
ordinator (for short 'DPC') and subsequently, the ARP was dismissed
from service vide letter dated 14.11.2008, which is exhibited as
Ex.DW1/5.
5. The learned counsel for the plaintiff further relies upon the report of
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the Auditor (Ex. DW1/4A) which notes that payments apropos (i)
purchase order Nos.2551-57 (placed upon the plaintiff) and (ii) 2558-
67 (placed upon Radha Krishna Prakashan, New Delhi) dated
11.10.2004 (pataka-5) amounting to a sum of Rs. 43,50,707/-, had
been pending due to budgetary overrun. He submits that the said
report also questions the cancellation of the purchase order and the
intimation regarding non-acceptance of the books from the plaintiff
by the District Libraries in view of the fact that the books had already
been supplied; furthermore it cannot be overlooked that the said
purported intimation letter was sent to the District Libraries only after
the books had already been received by the latter. Furthermore, the
learned counsel submits, that there is nothing on record to show that
the intimation for not accepting the books was sent to the plaintiff,
that neither is there any proof in this regard nor has the mode of
intimation been proven by the defendants.
6. The learned counsel for the plaintiff also relies upon the cross
examination of Mr. Tigga where he deposed that as per the records
maintained by the defendant, the books were delivered by the plaintiff
in terms of the purchase orders; that the books were received after
cancellation of the order but he did not recall the date; that there is
nothing on record to show that the books were delivered after
cancellation of the purchase orders; that the notice cancelling the
purchase orders was sent only by fax transmission; that the books had
been supplied by the plaintiff to about 6-7 centres of the defendant;
that the audit report held that the ARP was not competent to place the
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orders. However, the learned counsel for the plaintiff submits that
neither in the FIR nor in the affidavit is there any whisper of the lack
of competence in or lack of authority of the ARP to place the
purchase orders. On the contrary, he submits that the audit report very
clearly states that payments could not be made due to budgetary
overrun. He further submits that in fact, the purported letter of
cancellation dated 13.12.2004 itself reasons that the books had not
been supplied despite a lapse of two (2) months from the date of the
purchase order.
7. The learned counsel for the plaintiff submits that, therefore, insofar as
bills have been raised against the defendant for the books supplied,
the same are liable to be paid. A decree in favour of the plaintiff is
sought accordingly. He further submits that in terms of Section 42 of
the Sale of Goods Act, 1930, once a buyer has accepted the goods, he
is liable to pay for the same if, after the lapse of a reasonable time he
retains the goods without intimating to the seller that he has rejected
them. As regards the territorial jurisdiction of this Court to entertain
the present suit, he submits that this Court possesses the same since
the purchase orders were received in Delhi, goods were dispatched
from Delhi and payments were to be made at Delhi.
Defendant's case
8. The learned counsel for the defendant, on the other hand, submits that
the purchase orders were not placed by a competent officer, therefore,
anybody lacking authority to contract with a third party could not bind
the defendant by his unauthorised acts. He submits that any purchase
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order above the value of Rs.25,000/- would require sanction by the
District Level Purchase Committee of the defendant; that this was not
done in the present case, therefore, the purchase orders were without
any authority and any delivery made against that order would be non
est vis-a-vis the defendant. He refers to the evidence of the plaintiff
wherein it has claimed that it had been supplying goods to the
defendant on previous occasions as well. He submits that the plaintiff
was never able to show in its evidence that on earlier occasions also, it
had supplied goods to the defendant through a purchase order placed
by the ARP without prior approval of the District Level Purchase
Committee. The learned counsel further submits that this was nothing
but a purported transaction, in connivance with the said ARP viz. Mr.
Raj Narayan Pathak, only to benefit the plaintiff for supply of goods,
without any authority of law. He also submits that although the goods
were received by the defendant at various centres but the plaintiff had
been asked to take back the same from the centres. However, the
learned counsel fairly admits that there is nothing on record to show
that the plaintiff had been so asked, i.e. to take back the books which
had allegedly erroneously been supplied to the defendant. He further
submits that the moment this illegality came to the notice of the
defendant, disciplinary as well as criminal proceedings were initiated
against the persons concerned. The ARP, was removed forthwith
whereas departmental and criminal proceedings are pending against
the DPC. Therefore, he submits that the supply of books was without
authority and no monies are payable.
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Analysis
9. At the outset, this Court is of the view that the WS of the defendant
cannot be taken into consideration since it has neither been signed nor
verified. Moreover, the affidavit purporting to support the WS has been
executed on 5.7.2006, a day prior to the WS coming into existence on
6.7.2006. Therefore, the WS could not be relied upon by this Court and
it would amount to the defendant having no defence at all. Accordingly,
since the WS has neither been signed nor verified or supported by a
proper affidavit, after the coming into existence of a WS, the said WS
cannot be taken into consideration.
10. Even assuming the WS can be taken into consideration, this Court is
of the view that the defendant has failed to set up any defence. The
purchase orders were placed upon the plaintiff for supply of books,
towards which it had also sought release of payments by writing
letters and issuing legal notices, which were never responded to by the
defendant. Admittedly, the books were received by the defendant at
its various centres. There is nothing on record to show that the
cancellation letter dated 13.12.2004 was ever delivered to the
plaintiff. The document purporting to be a facsimile transaction,
cancelling the purchase order has not been proved nor has the same
been followed up by any postal receipt or confirmation of sending the
same through post. It has also not been proven that a copy of this
cancellation order or any direction or intimation, was ever sent to the
defendant's District Centres, directing the latter to not receive the
books supplied by the plaintiff. There is further nothing on record to
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show that the plaintiff was asked to take back the books supplied by
it. In the circumstances, by application of Section 42 of the Sale of
Goods Act, 1930, the defendant would be liable to pay for the books
supplied to it. More importantly, in the defendant's Auditor's Report
it has been stated that the payment was not made only because of
budgetary overrun and not because of lack of competence in the ARP
in placing the aforesaid purchase order. If the purchase order had
been cancelled or if the plaintiff/seller/supplier of the books had been
asked to take back the illegitimately supplied goods, then there would
have been no question of any outstanding amount towards the plaintiff
and indeed it would have been so recorded in the Audit Report. The
said report further raises serious doubts whether the Resource Centres
were ever intimated or instructed not to accept the books supplied by
the plaintiff. It is inconceivable that a Government Agency which
placed the purchase order through regular post would cancel the same
only by sending a facsimile message and would not even follow it up
by regular post. Furthermore, Mr. Tigga, DPO has admitted in
evidence that the ARP had issued orders for purchase of books with
other publishers also, the payment against which have already been
cleared. This only goes to show that the person/ARP was competent
to place the orders. In other words, it amounts to the defendant
ratifying such purchase orders having been placed by the ARP as it
had earlier made payments against such ARP placed purchase orders.
11. In view of the aforesaid discussion, the suit is therefore, decreed in
favour of the plaintiff and against the defendant. The defendant shall
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pay to the plaintiff a sum of Rs.23,14,176/- along with interest @ 10
per cent per annum from the date of supply of books (to be precise
from January, 2005) till the date of payment.
12. Let the decree sheet be drawn up accordingly.
JANUARY 29, 2015 NAJMI WAZIRI, J.
b'nesh
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