Delhi High Court
M/S Kumar Industries vs Suresh Kumar Mittal on 10 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.489/2006
% 10th October, 2018
M/S KUMAR INDUSTRIES ..... Appellant
Through: Mr. Pradhuman Gupta,
Advocate (M. No.9650546383).
versus
SURESH KUMAR MITTAL ..... Respondent
Through:
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 Code of
Civil Procedure, 1908 (CPC) is filed by the defendant in the suit
impugning the judgment of the Trial Court dated 05.04.2006 by which
the trial court has decreed the suit filed by the respondent/plaintiff
seeking a decree for a sum of Rs. 6,72,331/-, for an amount of Rs.
4,48,359/- alongwith interest @ 12% w.e.f. 17.09.2001.
2. The facts of the case are that the respondent/plaintiff
pleaded that he supplied to the appellant/defendant aluminum wires
vide Bill nos. 01, 07 and 011 dated 15.05.2000, 10.07.2000 and
30.09.2000 for a total sum of Rs. 5,38,247/-. To this amount of Rs.
5,38,247/-, a further sum of Rs. 10,112/- was the amount due to the
respondent/plaintiff for the job work done by the respondent/plaintiff
for the appellant/defendant and for which the respondent/plaintiff had
issued its Bill dated 15.09.1999 hence making the unpaid amount to be
Rs. 5,48,359/-. The appellant/defendant thereafter had paid Rs.
1,00,000/- on 17.09,2001 and the balance amount of Rs. 4,48,359/-
remained unpaid. Pleading that the respondent/plaintiff is also entitled
to interest @ 20% which came to Rs. 1,99,149/- and which was added
to the principal amount of Rs. 4,48,359/-, the subject suit was filed for
recovery of Rs. 6,72,331/- alongwith interest. The amount of Rs.
6,72,331/- claimed by the respondent/plaintiff included the sales tax
amount of Rs. 21,523/-.
3. The appellant/defendant contested the suit and pleaded
that the goods sent by the respondent/plaintiff under the three bills
were defective. Under the Bill no.01 dated 15.05.2000, goods of an
amount of Rs. 29,500/- were defective for out of the total amount of
Rs. 1,32,720/-. So far as the Bill nos. 07 and 011 for Rs. 1,55,925/-
and Rs. 2,49,602/- respectively, the case of the appellant/defendant
was that the goods supplied were found to be defective entirely. The
appellant/defendant did not deny issuing of the ST-35 Form to the
respondent/plaintiff on account of the goods being supplied. The suit
was, therefore, prayed to be dismissed.
4. After pleadings were complete, trial court framed the
following issues:-
"(i) Whether the goods worth Rs.29,500/- supplied vide bill no.01
were defective and were returned by the defendant to the plaintiff,
as alleged in the written statement? OPD
(ii) Whether the entire goods against bill no.07 worth Rs.1,55,925/-
were defective and were returned by the defendant to the plaintiff,
as alleged in the written statement? OPD
(iii)Whether the entire goods worth Rs.2,49,602/- received against
bill no.011 were defective and were returned by the defendant to the
plaintiff as alleged in the written statement? OPD
(iv) To what amount, if any, the plaintiff is entitled? OPP
(v) Whether the plaintiff is entitled to interest, if so at what rate and
on what amount and from which period? OPP
(vi) Relief."
5. The documents which have been proved by the
respondent/plaintiff for his case have been referred to by the trial court
in para 12 of the impugned judgment and this para 12 reads as under:-
In support of the issue the plaintiff need only to prove that goods
were sent to the defendant of which amount was not received by
the plaintiff except the amount of Rs.1 lakh paid by cheque dated
17.9.2001. The plaintiff deposed and proved the documents
Ex.PW1/A the job work of Rs.10,112/- done by the plaintiff vide
bill dated 15.9.1999. He also proved purchase of aluminum wire
of Rs.1,32,720/- vide bill no.01 proved as Ex.PW1/B, another bill
no.7 dated 10.9.2000 as Ex.PW1/C for aluminum wire of
Rs.1,55,925/- bill no.011 dated 30.9.2000 Ex.PW1/D of
Rs.2,49,602/- of which total amount comes to Rs.5,48,359/- out of
which only Rs.1 lakh was paid as per statement of account of the
defendant with the plaintiff from 1.4.99 to 31.3.02 proved as
Ex.PW1/E, F and G. The plaintiff also proved computer copy of
his account with the defendant for the period 1.4.02 to 31.12.02 as
Ex.PW1/H. He also deposed that defendant had not supplied him
sales tax form 35 so he send letter dated 10.2.2000 to the
defendant of which copy is proved as Ex.PW1/J of which
certificate of posting is Ex.PW1/K. The plaintiff also proved the
legal notice sent through counsel as Ex.PW1/L of which certificate
of posting is Ex.PW1/M. Postal receipt is Ex.PW1/N and the
returned envelope is Ex.PW1/O. The receipt of the courier is also
proved as Ex.PW1/P. The plaintiff also deposed that as per bills
Ex.PW1/A to D he is entitled for 30% interest p.a of which
interest is claimed as Rs.1,99,149/- on the amount of Rs.4,48,359/-
up to the date of filing of the suit. The plaintiff also claimed
Rs.3300/- as notice fee from the defendant. The defendant also
claimed an amount of Rs.21,253/- which was paid by the plaintiff
to the sales tax office for non supply of sales tax form 35 by the
defendant to the plaintiff for the purchase of goods worth
Rs.5,38,247/- although the same was to be paid to the plaintiff by
the defendant. In this regard the plaintiff proved notice Ex.PW1/Q
received from the sales tax officer on which basis letter Ex.PW1/R
was written to the defendant of which postal receipt is Ex.PW1/S
and despite that the defendant did not supply the ST 35 Form to
the plaintiff. Nothing material was elicited by the defendant out of
the deposition of the plaintiff as discussed above as the focus of
the defendant was on proving issue no.1 to 3 which they failed as
already decided as above."
6. The trial court has rejected the defence of the
appellant/defendant, praying for dismissal of the suit, while holding
that the appellant/defendant has failed to prove that the said defective
goods were returned as the Challan documents/Ex.DW1/1 and
Ex.DW1/2 did not bear any signatures on the receipt of the
respondent/plaintiff of the alleged defective materials which were
claimed to have been returned by the appellant/defendant, owing to
the fact that Section 42 of the Sale of Goods Act, 1930 provides that
goods are deemed to be accepted if rejection of the goods is not
communicated in reasonable period of time. It is noted that for the
first Bill no.01 dated 15.05.2000, the reasonable period would be one
month i.e. up to 15.06.2000, and for the Bill no.07 dated 10.07.2000
the period of one month would expire on 10.08.2000 and for the third
Bill no.011 dated 30.9.2000 the period would expire on 30.10.2000.
Admittedly, in these periods of 30 days after receipt of the goods, no
intimation has been proved by the appellant/defendant which they
have served upon the respondent/plaintiff in terms of Section 42 of
Sale of Goods Act about the goods supplied by the
respondent/plaintiff to the appellant/defendant of being defective.
Even the so-called Challans Ex.DW1/1 and Ex.DW1/2 which in any
case have not been proved to show the return of goods by the
appellant/defendant to the respondent/plaintiff with the fact that these
Challans are dated 30.03.2001, and the date of 30.03.2001 is not a
reasonable period as per Section 42 of the Sale of Goods Act, and
therefore, the trial court in my opinion has rightly held that the
appellant/defendant is deemed to have accepted the goods.
7. In view of the aforesaid discussion, I do not find any
merit in the appeal. The trial court has rightly decreed the suit for the
principal amount of Rs. 4,48,359/-, and the trial court has also granted
interest rightly only @ 12% per annum from the due date of payment
of 17.09.2001 instead of 20% per annum as claimed by the
respondent/plaintiff. Appeal is accordingly dismissed.
8. The amount deposited by the appellant/defendant in this
Court be released to the respondent/plaintiff in appropriate satisfaction
of the impugned judgment and decree.
OCTOBER 10, 2018 VALMIKI J. MEHTA, J
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