Mr. M.S.Sasan, Adv. v. OMKAR SINGH GAUTAM .....

1. Whether Reporters of Local papers may NO be allowed to see the Judgment?

2. To be referred to the Reporter or not? NO

3. Whether the judgment should be NO reported in the Digest? JUDGMENT (ORAL)

1. The appellant has challenged the judgment and decree for `2,41,130/- passed by the learned trial Court in favour of the respondent.

2. The respondent filed a suit for recovery of ` 3,20,000/against the appellant. The respondent’s case is that he was manufacturing and stitching garments; the appellant was getting the job-work of stitching garments from the respondent and a sum of `2,91,130/- was due and payable for the job-work 2011:DHC:4511 done during the period 29.03.2006 to 14.12.2006. The appellant issued a cheque for `50,000/- to the respondent towards part payment of the aforesaid amount which was dishonored whereupon the respondent instituted the complaint under Section 138 of Negotiable Instruments Act against the appellant. The respondent issued a legal notice dated 11.12.2007 before filing the suit. The respondent placed on record the copies of 45 bills, statement of account and the legal notice along with postal receipts and A.D. cards before the learned trial Court.

3. In the written statement before the learned trial Court, the appellant admitted that it was getting job-work done from the respondent. However, the liability of `2,91,130/- was denied. It was pleaded by the appellant that the payment was made at the time of collecting the job-work. It was further pleaded that the appellant was liable to pay a sum of `50,000/to the respondent in respect of which a cheque was issued which was dishonored but after the filing of the complaint under Section 138 Negotiable Instruments Act by the respondent, the appellant made the payment of the said amount to the respondent. The receipt of the legal notice was admitted but no reply was given by the appellant. It was further pleaded that 45 bills filed by the respondent were forged and fabricated.

4. The respondent appeared in the witness box as PW-1 and proved the copies of the bills as Ex.PW-1/1 to Ex.PW-1/45. The statement of account was proved as Ex.PW-1/46 to PW-1/50. The copy of the legal notice dated 11.12.2007 along with post receipts and A.D. Card were proved as Ex.PW-1/51 to PW-1/54.

5. The appellant appeared in the witness box as DW-1 and admitted that the respondent was doing the job-work for the appellant. DW-1 deposed that the respondent used to collect the raw cloth from the appellant and at the time of delivery of the stitched clothes, the payment was made at times by cash and at times by cheque. DW-1 deposed that one cheque of `50,000/- given by the appellant to the respondent was dishonored upon presentation but the payment was made after the respondent filed a complaint under Section 138 Negotiable Instruments Act against the appellant. The bills Ex.PW-1/1 to Ex.PW-1/45 were disputed as being forged and fabricated. In cross-examination DW-1 admitted that the respondent was doing job-work for appellant for approximately three years and the job-work was shown by him in the Income-tax returns. DW-1 further deposed that no job-work was done by the respondent in respect of bills Ex.PW-1/1 to PW-1/45.

6. From the evidence on record, it is clear that the appellant has admitted that the respondent was doing the job-work for the appellant for three years prior to the institution of the suit. The respondent has successfully proved the case set up in the plaint whereas the appellant has not been able to prove the defence set up in its written statement. The appellant admitted in the witness box that the job-work done by the respondent was shown by him in his Income-tax returns. In that view of the matter, the appellant ought to have placed on record the job-work done by the respondent and the payments made by him. The appellant ought to have placed on record the copies of the bills against which it made the payment of `50,000/- to the respondent. The receipt of legal notice dated 11.12.2007 is admitted by the appellant but the appellant chose not to respond to the same. The learned trial Court has drawn adverse inference against the appellant for not placing on record its statement of account and copies of bills against which the appellant made the payment of `50,000/-. There is no infirmity in the findings of the learned Trial Court.

7. There is no merit in the appeal. The appeal is, therefore, dismissed with costs.

8. The appellant has deposited a sum of `1,25,000/- with the Registrar General of this Court in terms of order dated 15th July, 2010. The Registrar General is directed to release the same along with interest thereon to the respondent. J.R. MIDHA, J SEPTEMBER 02, 2011 mr