M/S Windsor Specialty Resins Pvt. ... vs Hrushikesh Shethy
2018 Latest Caselaw 7390 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 505/2018

%                                                 14th December, 2018

M/S WINDSOR SPECIALTY RESINS PVT. LTD.   ..... Appellant
             Through: Mr. Nitin Soni and Mr. Deepjyot
                       Singh, Advocates (Mobile No.
                       9810434067).
                          versus

HRUSHIKESH SHETHY                                       ..... Respondent

                 Through:                None.

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 25.01.2018 by which

the trial court has decreed the suit filed by the appellant/plaintiff for

the amounts of only three out of the four invoices. The

appellant/plaintiff impugns the judgment for claiming the amount due

under the fourth Invoice dated 07.02.2014 for the amount of Rs.

7,58,646/-.

2. The facts of the case are that the appellant/plaintiff

pleaded that it supplied chemicals known as ABS H1 121H Natural

and SD-0150W to the respondent/defendant under four supply

Invoices dated 26.12.2013, 31.12.2013 and two dated 07.12.2014.

These invoices were proved before the trial court as Ex. PW1/5 to

Ex.PW1/8. The trial court has disbelieved the case of the

appellant/plaintiff with regard to the invoice Ex.PW1/8 by giving

various reasons. The first reason is that why should there be two

invoices of the same date of 07.02.2014. The trial court then has

reasoned that because there is a signature with stamp of the

respondent/defendant company on receipt Ex.PW1/7 dated 07.02.2014

but on the second invoice of the same date Ex.PW1/8, though there is

a stamp of the respondent/defendant company but there is no signature

of receipt of the goods which exists in the other invoices Ex.PW1/5 to

PW1/7. Accordingly, the trial court held that since the

appellant/plaintiff was not able to prove the supply of material under

invoice Ex.PW1/8, the suit has not been decreed for this invoice

Ex.PW1/8 for an amount of Rs. 7,58,646/-.

3. In my opinion, the impugned judgment of the trial court is

illegal and the Ld. counsel for the appellant/plaintiff is justified in

arguing that there is nothing strange if a buyer who buys different

material from the supplier, such as the appellant/plaintiff, receives the

material under two separate invoices of the same date. This is all the

more so, and rightly argued on behalf of the appellant/plaintiff that the

material supplied under both the invoices was different i.e. the material

supplied under invoice Ex.PW1/7 is ABS H1 121H Natural whereas the

material supplied under invoice Ex.PW1/8 is SD-0150W. Also, the Ld.

counsel for the appellant/plaintiff is justified in arguing that there is no

discrepancy if the materials under two invoices are loaded on the same

truck, inasmuch as, the time of loading of the trucks is admittedly

separated by 15 minutes i.e. 7:15 pm & 7:30 pm. Also, on Ex. PW1/7

and Ex. PW 1/8 there appears the same mobile number of the person who

received the material and writing is in the hands of the same person.

4. In my opinion, if the respondent/defendant in fact had a

valid case, then there was no reason why the respondent/defendant would

be ex parte in the suit and would have chosen to not contest the suit and

lead evidence.

5. In view of the aforesaid discussion, this appeal is allowed

and the impugned judgment and decree dismissing the suit so far as the

fourth invoice Ex.PW1/8 is set aside and the suit is also decreed for the

invoice Ex. PW1/8 dated 7.02.2014 for a sum of Rs.7,58,646/- along

with interest. The appellant/plaintiff will be entitled to interest on the

principal amount of invoice of Rs.7,58,646/- at 6% per annum simple

from 07.02.2014 till the date of filing of the suit, and pendente lite and

future also at the same rate thereafter.

6. In my opinion, in the facts of the present case, there is no

reason to modify the rate of interest granted by the trial court for a higher

rate as is claimed by the appellant/plaintiff in this appeal.

7. The appeal is accordingly allowed and disposed of as stated

above. The appellant/plaintiff will be entitled to costs of the appeal.

Decree sheet be prepared accordingly.

DECEMBER 14, 2018                               VALMIKI J. MEHTA, J