M/S Ajay Industrial Corporation ... vs Sushil Kumar Aggarwal
2018 Latest Caselaw 4729 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.442/2017

%                                                    10th August, 2018

M/S AJAY INDUSTRIAL CORPORATION LTD.        ..... Appellant
                  Through: Mr. S.C.Singhal, Advocate with
                           Mr. Pradeep Verma, Advocate.


                          versus

SUSHIL KUMAR AGGARWAL                                  ..... Respondent

                 Through:                Ms. Santwana, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908(CPC) is filed by the plaintiff in the suit

impugning the Judgment of the Trial Court dated 15.2.2017 by which

trial court has dismissed the suit for recovery of Rs.19,87,291/- along

with interest.

2. The subject suit was filed by the appellant/plaintiff

pleading that the appellant/plaintiff supplied to the

respondent/defendant PVC Pipes and fittings with respect to which an

account was maintained between the parties and as per which the

principal amount due as on date of suit was Rs.14,19,494/-. To this

amount interest on being added, the amount due as on the date of the

suit became Rs.19,87,291/-. Since the respondent/defendant failed to

pay the amount due therefore the subject suit was filed.

3. The respondent/defendant contested the suit by filing his

written statement. In the written statement it was pleaded that

appellant/plaintiff approached the respondent/defendant to act as a

Clearing and Forwarding Agent of the appellant/plaintiff. Agreement

was entered into between the parties at Kolkata. A fresh agreement

was also entered into on 16.1.2009 at Delhi. It was further pleaded

that on 26.4.2010 respondent/defendant received an e-mail from the

appellant/plaintiff that the Clearing and Forwarding Agreement was

proposed to be closed, however, the distributorship of the

respondent/defendant will remain. The cheque of Rs.5 lacs which was

dishonoured was said to be the advance payment. The

respondent/defendant pleaded that goods worth Rs.66,50,461/- were

given to the appellant/plaintiff in full and final settlement and

therefore no further dues remain in terms of the meeting between the

parties on 18.9.2010.

4. Trial court framed the following issues:-

"1. Whether the plaintiff is entitled for decree of recovery for Rs.19,87,291/-? (OPP)

2. Whether the plaintiff is entitled for interest? If so, at what rate and for what period? (OPP)

3. Whether the suit is bad for non-joinder of necessary party? (OPD)

4. Whether instant suit is barred by the principles of resjudicata? (OPD)

5. Relief."

5(i). The suit has been dismissed by the trial court inasmuch as

appellant/plaintiff failed to lead evidence in spite of repeated

opportunities. Since the appellant/plaintiff failed to lead evidence in

spite of repeated opportunities, therefore, the evidence of the

appellant/plaintiff was closed by the trial court vide Order dated

8.12.2016.

5(ii) No doubt, courts are liberal in granting opportunities to

the parties to lead evidence but in this case it is noted that

opportunities granted to the plaintiff are no less than 13 in number, i.e.

prior to the evidence being closed of the appellant/plaintiff on

8.12.2016, for as many as 13 dates the appellant/plaintiff failed to lead

evidence. On the dates which were fixed for leading of evidence of

the appellant/plaintiff, for one reason or the other no evidence was led

and these dates are 29.4.2013, 1.10.2013, 3.1.2014, 16.4.2014,

21.8.2014, 5.11.2014, 3.2.2015, 21.5.2015, 17.12.2015, 11.3.2016,

5.5.2016, 27.5.2016 and 29.9.2016.

6(i) Counsel for the appellant/plaintiff argued that when the

evidence of the appellant/plaintiff was closed vide Order dated

8.12.2016, the case was fixed for arguments on the application filed by

the appellant/plaintiff under Order XII Rule 6 CPC by the earlier

Order dated 23.9.2016, and therefore the trial court could not have

asked the appellant's/plaintiff's witness to appear on the same date of

8.12.2016 and on such failure close the evidence of the

appellant/plaintiff.

(ii) In my opinion the argument urged on behalf of the

appellant/plaintiff would sound to be appealing on the first blush

because the date of 8.12.2016 was fixed for arguments on the

application under Order XII Rule 6 CPC, but the necessary facts to be

noted are that court while disposing of the application under Order XII

Rule 6 CPC by keeping it as open and not pressed at that stage gave

time on the same day to the appellant/plaintiff to bring its witness or

witnesses, and which was not done, with the further fact that filing of

the application under Order XII Rule 6 CPC by the appellant/plaintiff

was mischievous because surely after failing to lead evidence for 13

dates which were fixed, the application under Order XII Rule 6 CPC

was filed only for ulterior intent of somehow or other to continue the

suit in spite of not leading evidence for which over a dozen

opportunities were already granted. Therefore in my opinion trial

court has done no error if on the date fixed of 8.12.2016 trial court

asked and gave time and kept the case pending for a later point of time

on the same day for the appellant/plaintiff to bring its witnesses and

which admittedly were not brought.

7. Therefore since there was no evidence of the

appellant/plaintiff, and the appellant/plaintiff has failed to prove the

issues framed on 11.1.2013, hence the trial court in my opinion was

justified in dismissing the suit as there was no evidence of the

appellant/plaintiff with respect to issues of which onus was upon the

appellant/plaintiff.

8. At one stage during the arguments, I put it to the counsel

for the appellant/plaintiff that since the suit is for recovery of

Rs.19,87,291/- plus interest, can the appellant/plaintiff consider that if

substantial costs of Rs.3 lacs are imposed upon the appellant/plaintiff

for two opportunities to be granted to the appellant/plaintiff to

complete its evidence, but counsel for the appellant/defendant stated

that costs are heavy and therefore cannot be paid by the

appellant/plaintiff. In my opinion in the facts of the case such as the

present where 13 opportunities were granted and not utilized by the

appellant/plaintiff to lead evidence, imposition of costs of Rs.3 lacs in

a suit filed for recovery of Rs.19,87,291/- with interest would have

served the ends of justice for any delay and prejudice caused to the

respondent/defendant, but once the appellant/plaintiff refuses to pay

the costs, this Court cannot consider any fresh opportunities to be

granted to the appellant/plaintiff to lead evidence.

8. There is no merit in the appeal. Dismissed.

VALMIKI J. MEHTA, J AUGUST 10, 2018 Ne