Delhi High Court
M/S Lgf Sysmac (India) Private Ltd vs M/S Shalimar Engineers on 6 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 531/2018
% 6th February, 2019
M/S LGF SYSMAC (INDIA) PRIVATE LTD. ..... Appellant
Through: Mr. Kunal Madan, Advocate
(M. No.9810821712).
versus
M/S SHALIMAR ENGINEERS ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. In the present appeal the respondent is served by
affixation at the Faridabad address which was stated in the memo of
parties of the suit plaint. Ld. counsel for the appellant/plaintiff also
states that the respondent/defendant did not appear in the trial court in
spite of service through publication and was accordingly proceeded ex
parte. Accordingly, it is held that the respondent is served in the
present appeal.
2. 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 16.02.2018 by which
the trial court has dismissed the suit for recovery of Rs. 4,79,717/-,
filed by the appellant/plaintiff on account of the respondent/defendant
not supplying goods which were to be purchased by the
appellant/plaintiff and for this purchase the appellant/plaintiff had
advanced to the respondent/defendant a total amount of Rs.5,29,000/-
vide cheques dated 19.11.2013 and 21.04.2014 for Rs. 3,29,000/- and
Rs. 2,00,000/- respectively.
3. The facts of the case are that the appellant/plaintiff had
filed the subject suit pleading that it is dealing in the manufacture of
architectural hardware and fabrication machinery. The
respondent/defendant partnership firm was dealing in manufacturing
of press component which is used by the appellant/plaintiff for
manufacturing of the machinery. The respondent/defendant had
approached the appellant/plaintiff for sale of certain hardware and
respondent/defendant had supplied one hardware vide Invoice No.
2348 dated 05.10.2013 for Rs. 38,966/-. Parties had entered into an
agreement and at the time of signing of the agreement, the
appellant/plaintiff had given a Cheque dated 19.11.2013 for Rs.
3,29,000/- as an advance payment. After the agreement was entered
into between the parties, the appellant/plaintiff gave various purchase
orders to the respondent/defendant and also released another Cheque
dated 21.04.2014 of Rs. 2,00,000/-. The respondent/defendant in spite
of receiving the huge amount as advance was delaying the
manufacturing of hardware. Some hardware were thereafter supplied
by the respondent/defendant vide four Invoice Nos. 54 dated
02.07.2014, 61 dated 14.07.2014 and 69 and 70 both being dated
30.07.2014. One hardware supplied by the respondent/defendant vide
Invoice No. 70 for Rs. 7,922/- was found to be defective and hence
was returned to the respondent/defendant. Since the
respondent/defendant failed to supply the hardware, and had even
failed to return the advance, therefore the appellant/plaintiff sent a
Legal Notice dated 24.04.2015. Thereafter, the subject suit was filed
for refund of Rs. 4,06,541/- alongwith interest amount of Rs. 73,176/-.
4. The respondent/defendant failed to appear in the trial
court in spite of service and thus was proceeded ex parte.
5. The appellant/plaintiff proved its case and proved the
various Purchase Invoices as Ex. PW1/3, PW1/5, PW1/7, PW1/9 and
PW1/11 etc. Filing of the suit was proved through Resolution dated
13.02.2017 as Ex. PW1/17. The Agreement entered into between the
parties dated 20.11.2013 was proved as Ex. PW1/2. The Ledger
Account was filed and proved as Ex. PW1/12 alongwith the
Certificate under Section 65B of the Indian Evidence Act, 1872 as Ex.
PW1/13. The bank account statement to show payment of advance
amount was filed and proved as Ex. PW1/14. The e-mails issued to the
respondent/defendant were proved collectively as Ex. PW1/15
alongwith Certificate under Section 65B of the Indian Evidence Act as
Ex. PW1/16.
6. The trial court has dismissed the suit by observing that
the appellant/plaintiff had failed to prove the Legal Notice dated
24.04.2015 and that the appellant/plaintiff has failed to prove payment
of the amounts of Rs.3,29,000 and Rs.2,00,000/- inasmuch as the
Bank Account Statement was not certified under the Bankers' Book
Evidence Act, 1891.
7. In my opinion, the trial court has committed a complete
illegality inasmuch as the relations between the parties were already
proved through various invoices which were exhibited by the
appellant/plaintiff in the evidence. The statement of account of the
bank showing payment by the appellant/plaintiff to the
respondent/defendant was proved as a 'downloaded document' and it is
not necessary that this statement of account had to be rejected, merely
because exhibition of a document on account of the same not being in
accordance with law has to be specifically objected to and once there
is no objection, inasmuch as the respondent/defendant was already ex
parte, the trial court could not have held that the bank account
statement was not proved vide R.V.E. Venkatachala Gounder v.
Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8
SCC 752. It is therefore held that the appellant/plaintiff had proved
payment of amounts to the respondent/defendant in terms of the Bank
Account statement proved as Ex. PW1/14. The Ledger Account was
proved as Ex. PW1/12. Therefore, the appellant/plaintiff had proved
that it was entitled to refund of the amount of Rs. 4,06,541/- as the
principal amount and this principal amount was claimed in the suit.
8. In view of the aforesaid discussion, this appeal is
allowed. Impugned Judgment of the trial court dated 16.02.2018 is set
aside. Suit of the appellant/plaintiff will be decreed for a sum of Rs.
4,06,541/- alongwith pendente lite and future interest @ 9% per
annum simple till payment. Appellant/plaintiff will be entitled to the
costs of the suit and the appeal. Decree sheet be prepared. Appeal is
accordingly allowed and disposed of. All pending applications are also
disposed off.
FEBRUARY 06, 2019 VALMIKI J. MEHTA, J
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