Delhi Transport Corporation vs Mahajan Medical Store And Others
2017 Latest Caselaw 3861 Del

$~R-5B

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    RFA 31/2009

     DELHI TRANSPORT CORPORATION                        ..... Appellant

                        Through      Mr.Sarfaraz Khan         and   Mr.Ataur
                                     Rahman, Advs.



                        versus



     MAHAJAN MEDICAL STORE AND OTHERS ..... Respondent

                        Through      Mr.M.L. Sharma, Adv.

     CORAM:

     HON'BLE MR. JUSTICE P.S.TEJI (ORAL)

                        ORDER

% 02.08.2017

1. The present appeal has been filed under Section 96 of the CPC against the judgment and decree dated 17.09.2008 passed by the learned Additional Sessions Judge in civil suit no.219/2006/87.

2. The facts enumerated from the record is that a suit for recovery of Rs.7,00,000/- was filed by the plaintiff/respondent against the defendant/respondent. As per plaint filed by the plaintiff/respondent, he

was a chemist and had been running his business in the name and style of M/s. Mahajan Medical Store. In the year 1984, the defendant /appellant introduced a new medical scheme for their employees and their family members. The plaintiff/respondent was appointed as authorized chemist vide appointment letter dated 03.01.1984 and was allotted code number C-0241. Plaintiff/respondent agreed to sell medicines to the employees of the defendant/appellant and they agreed to purchase the same through their employees. Plaintiff/respondent started selling medicines to the employees of the defendant/appellant against the prescriptions issued by their empanelled doctors and sending the claim for reimbursement. In October 1984, the said medical scheme was modified whereby a restriction was put on the chemists including the plaintiff/respondent not to sell the medicines to the amounts where the amount of prescription exceeds Rs.50/- and not to issue medicines on one prescription for more than three days. The said scheme was further modified vide letter dated 21.01.1986 whereby the panel of doctors/chemists was dispensed with w.e.f. 01.02.1986. It was claimed by the plaintiff/respondent that he had sold the medicines worth Rs.11,35,020.87 for the period 06.05.1984 to 31.01.1986 and submitted the bills for reimbursement, but the defendant/appellant had paid a sum of Rs.5,63,564.28 leaving a sum of Rs.5,71,456.59 as unpaid.

3. In the written statement, the defendant/appellant had contended that the plaintiff/respondent was empanelled as a chemist under the scheme but the said scheme was exploited and the empanelled doctors and chemists in conspiracy of DTC employees started fleecing DTC. It was contended that some of the employees issued medicines of more

than Rs.150/- at one and the same time. The DTC issued order dated 15.10.1984 whereby it was instructed that no doctor will be allowed to prescribe medicines for more than three days. The doctors were asked to prescribe small packets of drugs and ointments. The chemists were directed not to issue medicines on anyone's prescription for more than Rs.50/-. It was denied that plaintiff/respondent supplied medicines to the employees of DTC in accordance to the instructions issued. In or about 1985, it was revealed that a kind of racket was formed by many employees of DTC, empaneled doctors and chemists and they started fleecing DTC and deprived DTC of crores of rupees from May 1984 to July 1985. There were several irregularities in the bills submitted by the plaintiff/respondent. The defendant/appellant had denied the entire case of the plaintiff.

4. On the basis of pleadings of the parties, the Court below framed the following issues :

(1)Whether the plaintiff has not complied with the direction issued by the defendant in time to time in issuing the medicines to the supply of the DTC under Medical Scheme? OPD

(2)Whether the plaintiff is entitled to the relief claimed?

(3)Relief.

5. The plaintiff/respondent in support of his case had examined himself as PW1, whereas the defendant/appellant examined two witnesses, Sh.V.K. Singh as DW1 and Sh.S.P. Gupta as DW2.

6. The onus to prove the issue no.1 was on the defendant/appellant to the effect that the plaintiff/respondent had not complied with the directions issued by them while issuing medicines to the employees of DTC and their family members. The Circulars dated 28.04.1984 and 30.04.1984 are Ex.DW1/3 and Ex.DW1/4 are important. As per clause 3 of circular Ex.DW1/3, the chemist shall supply the medicines as per the prescriptions, issue a bill indicating the prescription number and date and also give the number, date and amount of bill. He was required to obtain signatures of employees and their family member. As per Ex.DW1/4, the scheme was formulated initially for a period of six months. The doctor was requested not to prescribe medicines for more than three days. It was further provided that the medicines prescribed by the doctors where the cost was more than Rs.50/- shall be purchased by the employees only from Super Bazar. Empanelled chemists were directed not to issue medicines on any one prescription where the cost of medicines prescribed was more than Rs.50/-.

7. From the evidence and material placed on record, appellant/ defendant issued medical scheme for its employees and their family members from May 1984 to February 1986. Several conditions were prescribed in the circulars issued by the DTC to the chemists and doctors while prescribing medicines and issuing of bills by the chemists. The chemists were required to mention name of medicines, batch number, expiry date, quantity and amount of medicine on the bills issued. From the documents placed on record and the evidence led by the parties, it was duly proved that the plaintiff had not

complied with the directions issued by the appellant/defendant from time to time in issuing medicines to the employees of DTC.

8. The onus to prove the issue no.2 was on the plaintiff to show his entitlement for the relief claimed. The plaintiff had sought the decree of Rs.7,00,000/- including interest thereon.

9. The claim of the plaintiff/respondent was that he had supplied medicines worth Rs.11,35,020.87 to the employees of DTC and their family members but he had received a sum of Rs.5,63,546.28, whereas a sum of Rs.5,71,456.69 was not paid to him by the DTC.

10. During the course of evidence, it came on record that the appellant/defendant had paid a sum of Rs.20,000/- as well as Rs.32,853.6, thus the balance remained to be paid only Rs.6,10,415/-. From the facts and material placed on record, it was duly established that the bill of Rs.11,03,735/- was submitted by the plaintiff, out of which a total sum of Rs.5,77,562.18 was paid by them to the plaintiff leaving the balance of Rs.5,26,172.86. It was also found that the plaintiff had not followed the guidelines in issuing certain bills and thus the amount of unpaid bill of Rs.51,880.32 was rightly retrenched by the defendant.

11. As apparent from the record, there is nothing wrong by the trial court in holding that the plaintiff was entitled to a sum of Rs.3,74,292.30.

12. As regards to the interest part, it has been submitted by the counsel for the appellant/defendant that the trial court has awarded the

interest @ 10% per annum on the decreetal amount. On the other hand, learned counsel for the respondent/plaintiff has submitted that there is nothing wrong in awarding interest by the trial court as the same was awarded at the prevailing rates.

13. It is worthwhile to mention that this Court in its order dated 06.09.2010 observed that the observations made in the order dated 15.07.2010 regarding payment of interest amount stands deleted.

14. While dealing with the aspect of payment of interest in a suit, under Section 34 CPC, the Hon'ble Apex Court in the case of Sri Ramnik Vallabhdas Madhvani and Ors. V. Taraben Pravinlal Madhvani (2004) 1 SCC 497. It was held that :

"Coming to the legal aspect of the amendment of plaint allowed in the present case by the High Court, it is to be noted that Section 34 of the Code of Civil Procedure deals with the question of award of interest. Section 34 C.P.C. as it stood before amendment in February 1977 deals with the question of interest in three stages. First is, interest prior to the date of institution of suit, second stage is interest from the date of institution of suit till date of decree and the third state is from the date of decree till realisation of the decretal amount. About the first stage, Section 34 does not say anything while about the second stage it says that the interest to be awarded should be as considered reasonable by the Court. About the third stage i.e. from the date of decree till realisation, the power of the

Court to award interest is circumscribed i.e. it cannot be more than 6% per annum."

15. In view of the above discussion, it appears from the record that the interest awarded by the trial court is on the higher side and it should be 6% per annum. Consequently, the appeal is dismissed with the modification that the respondent/plaintiff shall be entitled to simple interest @ 6% per annum on the decreetal amount from the date of institution of suit till realization of the decreetal amount.

16. Admittedly, as per the record, no amount has been deposited by the appellant till date. A cheque was earlier filed before the trial court by the appellant/defendant but its validity has already expired. No fresh cheque was ever deposited by the appellant.

17. Decreetal amount be released to the Decree Holder within a period of eight weeks.

18. Parties to bear their cost.

19. Decree sheet be amended accordingly.

20. Appeal is disposed of accordingly.

P.S.TEJI, J AUGUST 02, 2017 dd