Punjab-Haryana High Court
Jain Sons Exports Unit No 1 And Anr vs Nitin Woollen Mills And Anr on 24 March, 2025
Neutral Citation No:=2025:PHHC:040173
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
234 RSA-4967-2017(O&M)
Date of decision: 24.03.2025
Jain Sons Exports unit no. 1 & Another
...Appellant(s)
Vs.
Nitin Woollen Mills & Another
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Arun Singal, Advocate
for the appellants.
Ms. Harjinder Kaur, Advocate for
Mr. T.P. Singh, Advocate
for the respondents.
***
NIDHI GUPTA, J.
Present second appeal has been filed by the defendants
against judgment and decree dated 11.07.2017 passed by learned
Additional District Judge, Panipat whereby judgment and decree dated
04.08.2016 passed by the learned trial Court dismissing the suit of the
plaintiffs/respondents
respondents herein, has been set aside
aside; and the appeal filed by
the plaintiffs has been allowed decreeing the suit of the plaintiffs holding
them entitled to recovery Rs.1,49,628/-
Rs.1,49,628/ along with interest @ 12% per
annum from the date of filing the suit till its
its actual realisation.
2. The parties shall hereinafter be referred to as per their
status before the learned trial Court i.e. appellants as "defendants" and
respondents as "plaintiffs".
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3. Brief facts of the case as set out in the plaint are that
plaintiff
intiff No.1/respondent No.1 herein,
herein is a partnership firm. Plaintiff
No.2/respondent No.2 herein,
herein namely Rakesh Goel
Goel, and one Yogesh Goel
are partners in the said Firm. Plaintiff No.2 was authorised to file the
present suit on behalf of plaintiff No.1. Appellant No.2/defendant No.2 is
stated to be the authorised signatory of appellant No.1/defendant No.1
No.1--
Firm.
4. It was pleaded by the plaintiffs in the plaint that the
defendant No.2 had placed a Purchase Order No.732 dated 01.11.2010 to
the plaintiffs;
plaintiffs; whereafter the plaintiffs had sent 15 bags of yarn to the
defendant at the rate of Rs.132/-
Rs.132/ per kg. Total weight of the yarn sent by
the plaintiffs to the defendant was 1077.600 kg i.e. net 1077 kg. It was
averred that the defendants had purchased the af
aforesaid goods vide Bill
No.165 dated 01.11.2010. The goods were stated to have been received by
the defendants and marked its stamp on the back side of the Bill. Value of
the said goods was stated to be Rs.1,49,628/
Rs.1,49,628/- including VAT @ 5% and
surcharge.The
The defendant
defendant was to pay the aforesaid amount within 15 days
from the date of purchase as per the prevailing custom in the market. After
expiry of 15 days, the plaintiff had called defendant No.2 for payment of the
aforesaid amount but the defendants had prolong
prolonged
ed the matter on one
pretext or the other.
other. On 27.11.2010, the plaintiff No.1 had sent a legal
notice to the defendants which was duly received by them. After notice, the
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plaintiffs again approached the defendants to make the payment, but they
refused to do so. Earlier also, the defendant Firm had issued a cheque to
the plaintiff Firm for a sum of RS.1,26,932/
RS.1,26,932/-. The plaintiff Firm is
maintaining proper account books.
books. Accordingly, aforesaid transaction was
duly reflected in Form LS-9
LS 9 of VAT. On 10.02.2011, the defendant refused to
pay the aforesaid amount. Hence, present suit was filed on 05.09.2016.
5. Notice of the suit was given to the defendants who
appeared and resisted the suit by filing written statement. Besides formal
objections, it was pleaded in the written statement that suit is not
maintainable, the plaintiff has no locus standi and cause of action etc. The
defendant denied all the averments made in the plaint and prayed for
dismissal of the suit.
6. No replication was filed.
7. On the basis of pleadings of the parties, following issues
were framed by the learned trial Court vide order dated 30.09.2011
30.09.2011:-
"1. Whether the plaintiff is entitled for a decree for recovery of
Rs.1,49,628/- alongwith interest @ 18% per annum as
alleged?OPP
2. Whether the suit of the plaintiffs are not maintainable in the
present form?OPD
3. Whether plaintiffs have no cause of action and locus
locus-standi
standi
to file the present suit? OPD
4. Relief."
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8. On the basis of pleadings and oral & documentary
evidence adduced by the parties, the learned trial Court decided issue
No.1 against the plaintiff; and issues No.2 and 3 against the defendants
and in favour of the plaintiffs as no evidence was produced by the
defendants to show that the suit of the plaintiffs was not ma
maintainable or
that plaintiffs had no cause of action or locus to file the suit etc; and
accordingly vide judgment and decree dated 04.08.2016
04.08.2016, the learned trial
Court had dismissed the suit of the plaintiffs holding the plaintiffs not
entitled to recover Rs.1,49,628/-
R or interest thereupon.
9. In appeal, the learned Lower Appellate Court reversed
the above said judgment and decree of the learned trial Court and
decreed the suit of the plaintiff vide judgment and decree dated
11.07.2017 thereby holding that
that the respondents/plaintiffs were "...held
entitled to recover Rs.1,49,628/-
Rs.1,49,628/ along with interest @ 12% per annum
from the date of filing the suit till its actual realisation...". Hence, present
second appeal.
10. Learned counsel for the appellant
appellants/defendants inter
alia submits that the suit of the plaintiffs has been wrongly decreed by the
learned Lower Appellate Court as it is an admitted fact on record that the
original order No.732 dated 01.11.2010 was never brought on file by the
respondents. It is submitted that despite an order dated 28.09.2015
passed by the learned trial Court directing the plaintiffs to produce
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original Purchase Order No.732 dated 01.11.2010
01.11.2010, yet, the plaintiffs failed
to do so.. It is submitted that accordingly, the learned trial Court had
rightly dismissed the suit of the plaintiffs.
11. It is further submitted that in reversing the well
well-
reasoned judgment of the learned trial Court, the learned Lower
Appellate Court has wrongly held that it was proven on record that the
plaintiffs
laintiffs had duly supplied material to the defendants by way of Bill
(Ex.P3) alleged to have been issued by one Ni
Nitesh Mittal. It is submitted
that however, the said Nitesh Mittal has not been examined in the witness
box to prove the said Bill. Moreover, there is discrepancy in the Purchase
Order (Ex.P10) which shows that order of purchase of 1200 kg yarn was
placed @ Rs.130/-
Rs.130/ per kg; whereas as per the Bill (Ex.P3), 1077 kg yarn
was supplied at the rate of Rs.132/- per kg. It is submitted that
accordingly, the said reliance placed by the learned Lower Appellate Court
upon Ex.P3 was also not called for.Furthermore,
for.Furthermore, the Purchase Order is of 1
pm whereas the Bill is of 10:10 am i.e. the said Bill (Ex.P3) wa
was issued prior
to even placing of the Purchase Order (Ex.P10)
(Ex.P10). It is accordingly submitted
that the judgment and decree of the learned Lower Appellate Court is
based on misreading of the evidence. Even PW2 has never admitted that
supply was made by the plaintiff
plaintiff Firm to the defendant. In fact, PW2 has
denied Ex.P3. Moreover, the seal on the back of Ex.P3 is not of the
defendant No.1. This fact has been admitted by PW2 when he was called
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for examination. It is accordingly prayed that the impugned judgment an
and
decree of the Lower Appellate Court be set aside.
12. On the other hand, learned counsel for the
respondents/plaintiffs
s/plaintiffs opposes prayer made on behalf of the appellants
and submits that no ground is made out to interfere in the well
well-reasoned
judgment and
and decree of the learned Lower Appellate Court.
13. I have heard learned counsel for the parties and gone
through the record with their able assistance. I find merit in the
submissions advanced on behalf of the appellant.
14. It is admitted fact on record that the plaintiffs failed to
produce the original purchase order No.732 dated 01.11.2010. Only a
photocopy thereof
there was brought on record as Ex. P
P-10. Accordingly, the
appellant/defendant had moved an application seeking direction to the
plaintiff to
o produce the original Purchase Order bearing PO No.732 dated
01.11.2010 for proper adjudication of the case
case. The said application was
allowed by the learned trial Court vide order dated 28.09.2015(Annexure
A1), directing the plaintiff "...to produce origi
original purchase order P.O. No.
732 for proper adjudication of the case...".
case...". Even then, the plaintiff had
failed to produce the original order. As such, an adverse inference is liable
to be drawn against the plaintiff.
15. Furthermore, there is an admitted discrepancy in the
order as placed by the defendant and the supply made by the plaintiff.
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The Purchase Order (Ex.P10) shows that order of purchase of 1200 kg yarn
was placed @ Rs.130/-
Rs.130/ per kg; whereas as per the Bill (Ex.P3), 1077 kg
yarn was supplied at the
t rate of Rs.132/- per kg.
kg.One of the grounds on
which the learned lower Appellate Court has allowed the appeal filed by
the plaintiffs is that the plaintiffs had stated that as they had only 1077 kg
of yarn in their stock, as such, as per Ex.P3, only 1077 kg yarn was
supplied to the defendant Firm. Even if the said version is accepted
accepted,
plaintiff is still unable to explain the difference in the rate of ₹130/-
between Purchase Order (Ex.P10) and Supply Bill rate of ₹132/-.There is
nothing on record to indicate
indicate as to with whom the 'oral negotiations' had
taken place in this regard. Ld. Counsel for the plaintiff has also been
unable to explain as to how the Purchase Order is of 1 pm whereas the Bill
is of 10:10 am i.e. the Bill (Ex.P3) was issued even prior to placing of the
Purchase Order (Ex.P10).
16. It is in this background that the learned trial Court had
non-suited
suited the plaintiffs on account of following findings:
findings:-
"13....The
The plaintiff has produced on record the purchase order
Ex. P 10. The perusal of the documents shows that Jain Sons
Export has placed an order of 1200 Kg. Yarn with the rate of
130/-, total amount of Rs. 1,56,000/
1,56,000/- The plaintiff has also
produced on record Ex. P3, which is alleged to be the bill no.
165 by which the plaintiff has sold the goods to the defendant
in the said bill the quantity of the yarn is shown as 1077 Kgs.
For the rate of 132/- and the bill amount of total in 1,49,
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628/-. The defendant denied
ied that they have not purchased
any such goods from the plaintiff firm rather the documents
has been falsely prepared by the plaintiffs.
Both the documents Ex. P 10 i.e. the purchase order and the
bill invoices No. 165, placed on record and the compariso
comparison of
the documents has shows that the variation in the quantity
and the rate of goods in the purchase order. The quantity was
shown as 1200 Kg. and the rate of 130/
130/- Rs, but in the bill
invoices of the No. 165 the quantity shown as of 1077 Kg. for
the rate of 132/- Rs.. Both two documents differ from each
other. The Ex. P 3 i.e. bill invoices No. 165 bears the name of
Nitesh Mittal through whom the bill was prepared or sent,
but the said Nitesh Mittal was not examined by the plaintiff
to prove the existence of the documents Ex. P3. Since the said
Naresh Mittal was not examined as a witness by the plaintiff,
the documents placed on record is not said to be duly proved.
In view of the above discussion, this court has the considered
opinion that plaintiff has failed
iled to discharge the onus.
Therefore, issue no. 1 is decided against the plaintiff
plaintiff."
17. However, in allowing the plaintiff's appeal, the learned
Lower Appellate Court has taken note of the fact that "...bill Ex.P3 which
bears seal of respondent-defendant
respondent defendant no.1 firm on its back as a token of
receipt of goods so supplied....". However, DW2 Rajender Yadav
Yadav, Manager
of the defendant No.1 Firm (who
who had appeared for both
both, the plaintiffs as
PW2 well as for defendants as DW2),, has admitted in his re
re-examination
conducted on 01.03.2016 that as a normal practice, no doubt when any
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goods comes into the defendants' Unit, stamp of the defendant Firm is
affixed on the backside of the bill. However, ""on the backside of the bill
(Ex.P3), the stamp of Jain Sons Export is not affixed
affixed." Clearly, therefore,
the judgment of the learned Lower Appellate Court is based on a
misreading
ing of the testimony of DW2 in this regard.
regard.Moreover, PW2/DW2 is
the authorised person/Manager of defendant No.1 Firm and therefore, he
could depose regarding the affairs of defendant No.1 Firm. As such, no
adverse inference can be drawn that Ruchi Jain, proprietor of defendant
No.1 Firm did not step into the witness box.
18. It was also denied by PW2/DW2 in his cross-
examination dated 09.07.2015
09.07.2015 (Annexure A2) that "...In this record no
where the signature of the Vinay Jain is there. Vinay Jain is not authorized
signatory...". Learned Lower Appellate Court therefore wrongly held that
defendant No.2 is authorised signatory of defendant No.1. It has also been
held by the learned Lower Appellate Court that Nitesh Mittal who had
prepared Bill (Ex.P3) was not required to be examined in the witness box
to prove the said Bill, particularly when bill bears sstamp of defendant No.1
Firm on its back on a token of receipt of goods. However, this reason is
fallacious as,
as, the learned Lower Appellate Court has overlook
overlooked that
PW2/DW2 has admitted thrice in his cross
cross-examination that defendant
No.2 has nothing to do with defendant No.1; that Purchase Order No.732
is not signed by the defendant No.2;
No.2 and even Nitesh Mittal who had
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prepared the Bill (Ex.P3), has not been examined by the plaintiffs.
Judgment of the learned Lower Appellate Court is based on selective
reading
ing of the evidence of DW2.
19. At the risk of repetition, from the above facts, it is clear
that a comparison of the Purchase Order (Ex.P10) and bill invoices No.165
(Ex. P-3) shows that there is unexplained variation in the quantity and rate
of goods in purchase order. Bothdocuments differ from each other.
Moreover, Bill No.165 (Ex.P3) bears name of Nitesh Mittal through whom
the bill was prepared or sent but said Nitesh Mittal was not examined by
plaintiffs to prove the existence of document
documents (Ex.P3). Since Nitesh Mittal
was not examined, therefore, documents placed on record were not said
to be duly proved.
20. In view of the above, present appeal is allowed. The
judgment and decree dated 11.07.2017 holding the respondents/plaintiffs
"...entitled
...entitled to recover Rs.1,49,628/-
Rs.1,49,628/ along with interest @ 12% per annum
from the date of filing the suit till its actual realisation..."
realisation...", is set aside; and
the suit filed by the plaintiffs stands dismissed.
21. Pending application(s) if any also stand(s) disposed of.
24.03.2025 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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