Phoenix Udyog Pvt. Ltd. vs Maxpure Water System Pvt. Ltd.
2018 Latest Caselaw 1604 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 237/2018

%                                                     9th March, 2018

PHOENIX UDYOG PVT. LTD.                                  ..... Appellant
                 Through:                Mr. Pankaj Bhagat Mr. Sadre
                                         Alam and Mr. Amitabh
                                         Bachchan, Advocates.
                          versus

MAXPURE WATER SYSTEM PVT. LTD.                       ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 8967/2018 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

RFA No. 237/2018

1. This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) by the defendant in the suit

impugning the ex-parte judgment and decree of the trial court dated

22.12.2017 by which the trial court has decreed the suit filed by the

respondent/plaintiff for an amount of Rs.10,71,686/- along with

interest at 9% per annum being the value of the unpaid goods/water

purifiers sold by the respondent/plaintiff to the appellant/defendant.

2. At the outset it is required to be noted that the

appellant/defendant after initially appearing and filing written

statement, did not appear from the stage of cross-examination of the

witness of the respondent/plaintiff on 25.10.2017, and therefore, in

terms of the evidence led by the respondent/plaintiff, the subject suit

has been decreed.

3. The facts of the case are that the subject suit was filed by

the respondent/plaintiff for recovery of balance due of Rs.10,71,686/-

pleading that there was a relationship of buyer and seller between the

parties whereby the respondent/plaintiff supplied to the

appellant/defendant water purifiers, its parts and accessories on credit

from time to time by raising invoices. It was pleaded in the plaint that

goods were lastly supplied of a sum of Rs.3,27,548/- on 1.3.2011 and

with respect to which last payment was received on 13.3.2011. The

subject suit was filed on the last date of limitation on 13.3.2014.

4. The appellant/defendant had filed the written statement

and contested the suit denying the territorial jurisdiction of this Court

as also the suit being barred by time. Appellant/defendant has also

pleaded that there was no liability of the appellant/defendant who had

returned the goods which were sent by the respondent/plaintiff without

placing of any orders. Therefore, by pleading that appellant/defendant

had no liability the suit was prayed to be dismissed.

5. After pleadings were complete the trial court framed the

following issues:-

"(i) Whether this Court has no jurisdiction to try and entertain the present suit? OPD

(ii) Whether the suit of the plaintiff is barred by limitation? OPD

(iii) Whether the plaintiff is entitled for a decree in the sum of Rs.10,71,686 as prayed in prayer no.(a) of the plaint? OPP

(iv) Whether the plaintiff is entitled to pentende lite and future interest, if so, then at what rate and for which period? OPP

(v) Relief."

6. After issues were framed respondent/plaintiff led

evidence of Sh. Alpesh Gokhru as PW-1 who has proved various

documents Ex.PW1/1 to Ex.PW1/5. The invoices were proved as

Ex.PW1/3 (colly) and the statement of account was proved as

Ex.PW1/4. Appellant/defendant failed to appear from 25.10.2017

which was a date fixed for cross-examination of PW-1.

Appellant/defendant was therefore proceeded ex-parte and right of the

appellant/defendant to cross-examine PW-1 was closed by treating it

as nil. The impugned judgment has been passed thereafter by

decreeing the suit. I may note that once a defendant in a suit is ex-

parte, on the issues which have been framed really since there is no

contest on behalf of the defendant by leading evidence, there would be

no formal issues in the suit. This is being stated because whatever are

the defences of the appellant/defendant in the written statement cannot be

looked into because there is no evidence which is led by the

appellant/defendant with the fact that even the witness PW-1 of the

respondent/plaintiff has not been cross-examined. Therefore, there was

no reason for the trial court not to believe the unrebutted testimony of the

PW-1 for decreeing the subject suit in terms of the impugned judgment.

7. Counsel for the appellant/defendant argued that the suit was

barred by limitation and therefore the suit had to be dismissed, however

this argument is without merit because the respondent/plaintiff has

proved that last payment which was made was on 13.3.2011 and

consequently, the suit filed on 13.3.2014 i.e on the last date of limitation

would be within limitation. The statement of account proved as

Ex.PW1/4 shows the last payment, which is dated 13.3.2011, and

therefore the argument of the appellant/defendant has no substance that

the suit was barred by time. Even if the payment made is of a specific

amount of the last invoice yet this payment will be taken towards the

balance due at the foot of the document which has been proved as Ex.

PW1/4 and therefore the suit was not barred by limitation.

8. There was also an issue framed by the trial court with

respect to territorial jurisdiction, but it is noted that onus of this issue was

on the appellant/defendant who has not led any evidence. Therefore,

there is no substance in the argument urged on behalf of the

appellant/defendant that the court below has no jurisdiction. It was for

the appellant/defendant to prove its case of lack of territorial jurisdiction

that once the appellant/defendant has led no evidence it cannot be argued

by the appellant/defendant that there was no territorial jurisdiction of the

courts at Delhi.

9. Finally, counsel for the appellant/defendant argued that the

appellant/defendant was wrongly proceeded ex-parte on 25.10.2017 and

in this regard attention of this Court is drawn to grounds (g) and (h) of

the grounds of appeal that merely because appellant/defendant did not

appear on one date would not mean that the trial court should have

proceeded ex-parte against the appellant/defendant. These grounds (g)

and (h) read as under:-

"(g) For that even the memo of parties of suit as preferred by the respondent clearly establishes that the place of business of the appellant company is at Himachal Pradesh and not at Delhi.

(h) Further, in the evidence of PW1, at para 2 it has been admitted that the both the office and factory of appellant is situated at Himachal Pradesh."

10. In my opinion, grounds (g) and (h) are not the grounds

which are required in law to be pleaded to show good cause for non-

appearance before the trial court on 25.10.2017. If on the date fixed a

defendant does not appear then surely court is entitled to proceed ex-

parte and it cannot be argued by the appellant/defendant that just because

of non-appearance on one date the court could not have proceeded ex-

parte against the appellant/defendant. The appellant/defendant could

only have succeeded in setting aside ex-parte proceedings if it showed a

valid reason for non-appearance on 25.10.2017 and thereafter till the

application was filed under Order IX Rule 13 CPC, however there are no

such averments which are found in grounds (g) and (h). Therefore, there

is no reason for setting aside the ex-parte order dated 25.10.2017 against

the appellant/defendant.

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

MARCH 09, 2018/ib                               VALMIKI J. MEHTA, J