Jamir Ahmad vs Nand Kishore Garg
2018 Latest Caselaw 5004 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.689/2018

%                                                   24th August, 2018

JAMIR AHMAD                                           ..... Appellant
                          Through:       Mr. Anil Tejan, Advocate with
                                         Ms. Lalita Tejan, Advocate (M.
                                         No.9910149872).
                          Versus

NAND KISHORE GARG                                   ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.33890/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.33893/2018 (for condonation of delay of 605 days)

2. Delay in filing the appeal is condoned subject to just

exceptions as time was taken by the appellant for filing of this appeal

on account of a review petition filed before the trial court and which

was decided in terms of the Order dated 2.7.2018.

C.M. stands disposed of.

C.M. No.33892/2018 (for calling trial court record)

3. This application is dismissed as the main appeal is being

dismissed.

C.M. stands disposed of.

C.M. No.33894/2018 (under Order XLI Rules 23 & 27 CPC)

4. There does not arise any issue of allowing the appellant

to lead additional evidence because it is seen in the facts of the present

case that evidence of the defendants was closed as the

appellant/defendant no.1 did not lead evidence in spite repeated

opportunities and therefore vide order dated 24.11.2016 right of the

appellant/defendant no.1 to lead evidence was closed. Once the order

dated 24.11.2016 has become final as it was not challenged in any

other proceedings, and nor is challenged in the present proceedings,

there does not arise in the facts of present case allowing of the

application of Order XLI Rule 27 CPC.

Dismissed.

RFA No.689/2018 and C.M. No.33891/2018(stay)

5. This Regular First Appeal under Section 96 of Code of

Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the suit

impugning the Judgment of the Trial Court dated 3.12.2016 by which

trial court has decreed the suit for recovery of Rs.2,66,913/- along

with interest @ 6% per annum on account of goods/yarns being

supplied by the respondent/plaintiff to the appellant/defendant no.1.

6(i) The subject suit was filed by the respondent/plaintiff

pleading that he supplied yarn to the appellant/defendant no.1. The

appellant no.1 was the sole proprietor of the defendant no.2/ M/s.

Rashid Ahmad & Son. The details of various invoices of supply are

stated in para 3 of the plaint and payments made by the

appellant/defendant no.1 are stated in para 4 of the plaint. The

invoices which have not been paid for are detailed in para 6 of the

plaint, and which para 6 reads as under:-

"6. That to be precise, defendant No.1/2 has not made payment of the yarns supplied by the Plaintiff to him, under the following Bills:-

        Bill No.             Dated                   Amount
                                                     (Rs.)
        1531                 27.05.2008              83,504/-





         1640                23.08.2008               32,022/-
        1672                30.09.2008               86,015/-
        1745                08.12.2008               32,434/-
        1811                16.02.2009               32,938/-
                            TOTAL                    2,66,913/-

Carbon copies of Bills bearing Nos.1531 dated 27.05.2008, 1640 dated 23.08.2008, 1672 dated 30.09.2008, 1745 dated 08.12.2008 & 1811 dated 16.02.2009 are annexed herewith and marked as ANNEXURES P-2 to P-6 respectively."

(ii) Respondent/plaintiff claimed that in spite of

acknowledgment of the payment of the amounts due under invoices

vide acknowledgments dated 1.4.2009, and which were signed by the

son of the appellant/defendant no.1 and who was the defendant no.3

and brother of the appellant/defendant no.1 who was defendant no.4,

payments were not made. Ultimately the respondent/plaintiff got

issued a Legal Notice dated 10.2.2010 and thereafter filed the subject

suit for recovery of moneys.

7. As already noted above, the appellant/defendant no.1 has

failed to lead the evidence in spite of repeated opportunities, and

therefore, there is only the evidence of the respondent/plaintiff.

8. Issues were framed in the suit and evidence was led by

the respondent/plaintiff and these aspects are recorded in para 4 of the

impugned judgment which reads as under:-

"4. On the pleadings of the parties, the court, vide its order dated 10.09.2012, had framed the following issues for trial, reading as under:-

1. Whether the plaintiff is entitled for recovery of Rs.3,65,469/- OPP

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

3. Whether the plaintiff has not approached this court with clean hands? OPD

4. Whether the suit is barred under Section 8 of Arbitration and Conciliation Act, 1996? OPD

5. Relief; And in support of his case the plaintiff has filed evidentiary affidavit of PW-1, Vipin Kumar Garg, proved as Ex.PW1/A, who has also relied on the documents Ex.PW1/1 to Ex.PW1/17 and has reiterated the entire case of the plaintiff therein and it appears that the testimony of this PW has gone on record unchallenged as no cross-examination of this PW has been done and it further, appears that vide order dated 18.12.2014 the opportunity to cross-examine the PW has been closed and though there is a mentioning of tendering in evidence of PW Sh. Vipul Garg on this order but no such affidavit is traceable on record and it seems that the order mentions the name of the witness incorrectly as "Vipul Garg" and the correct name appears to be "Vipin Garg". It also appears on record that vide order dated 25.05.2016, entire P.E. was closed in the matter and as such there is only one PW examined. It is also on record that despite opportunities given vide order dated 25.05.2016 also 20.07.2016, again on 24.11.2016 the defendant no.1 and 2 also did not lead any evidence in the matter and therefore, the right of leading defence evidence was closed, accordingly, vide order dated 24.11.2016 and as such there appears to be no evidence available on record on behalf of the defendants."

9. Trial court has held that respondent/plaintiff has proved

his case inasmuch as respondent/plaintiff proved the acknowledgment

of dues vide. Ex.PW1/7 to Ex.PW1/10 and which were signed by the

son of the appellant/defendant no.1 as also the brother of the

appellant/defendant, were also conducting the business of the

defendant no.2/ proprietorship concern of the appellant/defendant

no.1.

10. I have gone through the acknowledgment of dues

Ex.PW1/7 to Ex.PW1/10, and these acknowledgment of debts are on

the letter heads of the respondent/plaintiff concern, and they bears the

signatures of the son and brother of the appellant/defendant no.1 and

who were carrying on business for and on behalf of the proprietorship

concern of the appellant/defendant no.1. Such persons therefore have

rightly been held by the trial court to be duly authorized to

acknowledge the dues.

11. Counsel for the appellant/defendant no.1 argued that

evidence led in the present case of the son of the respondent/plaintiff,

who was the attorney of the respondent/plaintiff, cannot be looked into

because an attorney cannot depose, however, this argument urged has

no merits because the deposition by the son of the respondent/plaintiff

is not only by attorney but by deposing that he was personally aware

of the facts and circumstances of the case and hence he was able to

depose. I therefore reject this argument urged on behalf of the

appellant/defendant no.1.

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

AUGUST 24, 2018                      VALMIKI J. MEHTA, J
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