Arya Unicorn Pvt. Ltd. v. Span Furniture Systems Pvt. Ltd. & Anr.

1. For the reasons stated in the application, delay of 30 days in refiling the appeal is condoned. C.M. stands disposed of. + RSA No.85/2014 and C.M. No.5142/2014 (stay)

2. This Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) against the judgment of the first appellate court dated 19.10.2013. The appellate court allowed the appeal filed by the 2014:DHC:1507 plaintiff against the judgment of the trial court dated 29.7.2011 by which the trial court had dismissed the suit for recovery of Rs.1,71,680/-. Recovery was claimed on account of furniture items supplied by the plaintiff/respondent no.1 to the defendant no.2/respondent no.2 at the request of the appellant herein and who was the defendant No.1 in the suit.

3. At the outset, it is required to be noted that the appellant/defendant no.1 did not lead evidence in the trial Court whereas the respondent no.1/plaintiff led detailed evidence, both oral and documentary evidence, and proved its case. How the respondent no.1/plaintiff proved its case is noted in para 10 of the impugned judgment of the appellate court dated 19.10.2013 and which reads as under:- “10. Plaintiff produced invoice Ex.P[2] & Ex.P[3] in respect of the goods supplied at the office of defendant no.2. The same is claimed to be received by defendant no.1. Ex.P[2] also bears the stamp of defendant no.1. Plaintiff has also filed his statement of accounts Ex.P[4] in respect of the transaction of defendant no.1. Defendant no.1 denied these facts in their written statement but did not cross-examine PW[1] in respect of the same. As per Ex.P[4], the payments as shown therein for period from 01/04/2000 to 31/03/2001 had been made by defendant no.1 to the plaintiff through their bank payee cheques. PW[2] official from the J & K Bank produced plaintiff’s bank statement showing payment of cheques credited to plaintiff’s account and the cheque amount and number corroborates with the entries shown in statement of accounts Ex.P[4]. PW[3] produced the bank statement of defendant no.1 from HDFC Bank. Ex.PW3/2 where the cheques of defendant no.1 are shown to be debited from their account. The said entries in regard to amount and the cheque number corroborates with the statement of accounts of the plaintiff’s bank Ex.PW2/1, Ex.PW6/7 and pay in slips Ex.PW6/ to Ex.PW6/6. PW[4] official of defendant no.2 had appeared and stated that as per the understanding between the parties, furniture was supplied by plaintiff at the office of defendant no.2 at Chennai and Calcutta. As per agreement between plaintiff and defendant no.1, defendant no.2 had made the entire payment to defendant no.1 and stated that bills Ex.P[2] & P[3] were actually issued to defendant no.1 and also bears their stamps as acknowledgment by defendant no.1 and that the said bills were issues in their name as consignee only. Defendant no.1 also did not give any suggestions to the witness PW[4] that no amount was either paid by defendant no.2 to defendant no.1 or that there was no relationship between defendant no.1 and defendant no.2. Further defendant no.1 had denied having any transaction with the plaintiff but has failed to show as to on what account their cheques for an amount of Rs.1,03,638/-, Rs.1,28,927/-, Rs.25,288/- & Rs.1,26,644/- had been debited from their account to the plaintiff’s account. In these circumstances, the onus to prove that defendant no.1 had no transaction with the plaintiff in respect of the suit had shifted on the defendant no.1. Defendant no.1 however, omitted to led any evidence and therefore, the version of the plaintiff was unrebutted and corroborated from the evidence on record. The findings of issue no.1 & 2 are therefore, not sustainable and are accordingly set aside.”

4. In my opinion, in a case such as the present where the appellant/defendant no.1 has led no evidence and the respondent no.1/plaintiff has proved the case by proving the bills in question; one bill bearing the stamp of the appellant/defendant no.1, the statement of account showing regular dealings between the appellant/defendant no.1 and the respondent no.1/plaintiff and lack of cross-examination of PWs on vital points shows that the first appellate court was justified in decreeing the suit for recovery of money for goods/furniture supplied.

5. In view of the above, no substantial question of law arises for this Court to exercise its power under Section 100 CPC, and therefore the appeal is dismissed, leaving the parties to bear their own costs.

MARCH 19, 2014 VALMIKI J. MEHTA, J. Ne