Delhi High Court
Hindustan Petroleum Corporation ... vs M/S Jyoti Rubber Udhyog (India) ... on 29 September, 2015
Author: Rajiv Shakdher
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 637/2015
HINDUSTAN PETROLEUM CORPORATION
LTD & ORS ..... Appellants
Through: Mr. C.S. Parasher, Advocate
versus
M/S JYOTI RUBBER UDHYOG (INDIA) LTD ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 29.09.2015
CM No.21291/2015 (Exemption)
1. Allowed subject to just exceptions.
RFA 637/2015 and CM No.21292/2015 (additional evidence) and CM
No.21290/2015 (stay)
2. This appeal is directed against the judgment dated 30.05.2015 passed
by the Additional District Judge (Central), Delhi. The respondent / plaintiff
had filed a suit for recovery of a sum of Rs.9,58,464/- against the bill
bearing no.681 dated 13.01.2009. The respondent / plaintiff had supplied to
the appellant / defendant no.1, hose-pipes against the aforementioned bill.
The hose pipes were 160 in number. The value of the hose-pipes was a sum
of Rs.5,76,000/- with sales tax in the sum of Rs.23,040/- added on.
2.1 The appellant / defendant no.1 failed to clear payment with respect to
the said bill. Consequently, the matter went to trial. One of the main
objections of the appellants / defendants was that the supply made was not in
terms of the purchase order.
2.2 According to the appellant / defendant no.1, the respondent / plaintiff
was required to furnish test reports certified by the competent Quality
Assurance personnel of the OEM for each individual hose-pipe.
2.3 Furthermore, individual hose was required to be marked with an
unique identification / tag number, so that it could be co-related with the
relevant test report. This condition is contained in clause 5 of the purchase.
2.4 Furthermore, the appellant / defendant no.1 says that the goods are
defective and it had received complaints from its dealers.
3. It is, in the background of the aforesaid broad facts, that the matter
went to trial. The trial court after permitting both parties to lead evidence,
decreed the suit against the appellant / defendant no.1. The findings
returned by the trial court are as follows :-
(i). That the respondent/plaintiff, admittedly, did not submit the test
reports.
(ii). That the complaints received by the appellant / defendant no.1were
not proved.
(iii). Despite taking a stand that the bill in question (i.e. bill no.681 dated
13.01.2009) bore the endorsement that performance was not satisfactory, in
the cross-examination of the appellant / defendant witnesses (DW-1), it
emerged that bill no.681 dated 13.01.2009 did not contain the said
endorsement.
(iv). In the cross-examination of DW-1 (i.e. the appellant / defendant), it
also emerged that no written communication was sent to the respondent /
plaintiff informing it as to the alleged defects in quality of the goods
supplied. Furthermore, no replacement whatsoever was sought qua the
goods received by the appellant / defendant.
3.1 The findings with regard to the above are contained in paragraph 29
and 30 of the impugned judgment. The same are extracted for the sake of
convenience : -
"..29. According to the defendant, the hose-pipes supplied by
the plaintiff were defective and they had received the
complaints from various vendors. DW 1 proved on record the
complaints as Ex. D1/3 (colly). But when this witness was
cross examined, he stated in his cross examination that it is
correct that whenever defendant received any letter from
anywhere then a seal of receiving is put on the said letter. He
admitted that Ex. D1/3 (colly) do not have any such seal. He
further admitted that the complaints Ex. D1/3 (colly) pertains
to Barauni Terminal. He further admitted that they had not
demanded in writing the replacement of any defective goods
from the plaintiff. So in these circumstances first of all the
defendant failed to prove by cogent evidence that the
complaints Ex. D1/3 (Colly) were received in the office of the
defendants. The defendant have not examined any of the
alleged complainant in support of its case for the reasons best
known to the defendant and when the goods were defective
why it was not communicated to the plaintiff in writing. The
another reason cited by the defendant for not making the
payment of invoice No.681 dated 13.01.2009 is that HPCL
engineer made a remark that the bill not to be paid and also
that performance was not satisfactory. DW-1 was confronted
with this bill Ex. DW1/P1 and he admitted that no remarks
have been made on this bill by the HPCL engineer. So in
these circumstances, it cannot be said that the HPCL engineer
made adverse comments on the bill and advised that the
payments be not made. Therefore, the plaintiff has been able
to prove that the goods were supplied to the defendant vide
invoice No.681 dated 13.01.2009, and the goods supplied were
not defective and the payment was not asked to be stopped and
no adverse remark was made on the bills in question. This
issue is, therefore, decided in favour of the plaintiff and
against the defendants.
Findings on issue No.1(a)
Whether hose-pipes supplied by the plaintiff to the
defendant were defective and defendant sought replacement of
those hose pipes from the plaintiff any point of time? OPD
30. The onus to prove this issue is on the defendants. In order
to prove its case the defendant examined Sh. Vijay Kumar,
who admitted the bill Ex. DW1/P1 in support of his averments
that the HPCL engineer made a remark on the bill submitted
by the plaintiff company "not to be paid" stating "performance
not satisfactory" and "in house test report not submitted". But
when this bill was put to this witness in the cross examination,
he admitted that the bill did not contain any such remark. As
already observed hereinabove DW-1 has admitted in his cross
examination that there is no document to show that the
defendant corporation sent any written intimation to the
plaintiff company whereby the plaintiff company was
informed about substandard or defective quality of the goods
supplied by it and any replacement of any substandard or
defective items was demanded from the plaintiff company at
any point of time. The defendant have failed to discharge the
onus that the plaintiff company was intimated about sub-
standard or defective hose-pipes supplied to it by the
defendants. The issue is, therefore, decided in favour of the
plaintiff and against the defendants.."
3.2 The learned counsel for the appellants / defendants submitted
that the bill in issue was made in triplicate, and, therefore,
inadvertently, the relevant part of the bill bearing the endorsement
that performance was not satisfactory was not produced before the
trial court. For this purpose, the learned counsel places reliance on an
application filed under Order 41 Rule 27 of the CPC, being: CM
No.21292/2015.
3.3 According to me, the said evidence cannot be entertained at this
stage, as pre-requisites of Order 41 Rule 27 of the CPC are not
fulfilled. Notwithstanding the above, what has emerged clearly is that
the goods have been utilized by the appellant / defendant no.1 and the
complaints allegedly received qua quality of the supplies made could
not be proved.
4. In these circumstances, willy-nilly, the appellant / defendant
no.1 has to pay for the supplies made. No interference is called for
with the impugned judgment. The appeal and the captioned
applications are accordingly, dismissed.
RAJIV SHAKDHER, J
SEPTEMBER 29, 2015
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