M/S. SAB ELECTRONICS LTD. v. M/S. BALAJI SALES AGENCIES & ANOTHER

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC), is to the impugned judgment and decree dated 9.8.2001 which dismissed the suit for recovery filed by the appellant/plaintiff on the ground that the suit was not properly proved to have been instituted.

2. The facts of the case are that the appellant/plaintiff supplied various torches and batteries to the respondents and on failure of the respondents to make the payment, legal notices dated 18.1.1995 and 27.3.1995 were issued. In the plaint, it was stated that as per the statement 2011:DHC:3350 RFA No.27/02 Page 2 of account upto 31.3.1994, a sum of Rs.73,332.73/- was due from the defendants. Defendants could not be served in ordinary method and ultimately were served through publication, however, in spite of the same they failed to appear and were therefore proceeded ex parte. The appellant/plaintiff, in the trial Court, proved the resolution entitling Mr. O.P. Talwar to file the suit as Ex.PW1/1. Statement of account was exhibited as Ex.PW1/3 and legal notices were exhibited as Ex.PW1/4 and Ex.PW1/6. One of the reply to the legal notices was exhibited as Ex.PW1/5.

3. In my opinion, the trial Court has committed grave illegality which has caused prejudice to the appellant/plaintiff. The witness of the plaintiff clearly deposed that the suit was filed through Mr. O.P. Talwar and whose signatures were identified. Once this is done, it is not specifically required that signatures should be marked by particular points. Filing of a suit on behalf of the company, unless there are inter se disputes between any groups of management in the company, is only a technical aspect and objection to the same should not be readily accepted by the Courts, much less in the absence of any defence from the defendants. In fact, the Supreme Court in the case of United Bank of India Vs. Naresh Kumar and Others, AIR 1997 SC 3 has held that once a suit is continued by a company, and which was a bank in case before the Supreme Court, right till its conclusion the Supreme Court said that the provision of Order 19 of Code of Civil Procedure, 1908 (CPC) should be applied and it should be held that RFA No.27/02 Page 3 suit was validly instituted. Mr. O.P. Talwar was the Senior Manager, Sales and Administration and therefore he was also the principal officer, as required under Order 19 CPC. Suit was therefore validly instituted. The trial Court was clearly unjustified in dismissing the suit on this limited ground. I have already stated above that the appellant proved on record statement of account and supported it by the oral evidence of the witnesses. No doubt, a simple statement of account is not good enough for fastening liability, however, in terms of Section 34 of the Evidence Act, 1872 once the statement of account is supported by the oral statement of witnesses, statement of account can be believed so as to fasten liability.

4. Accordingly, in my opinion, the appellant/plaintiff has proved its entitlement, and the defendants failed to appear in spite of service, it appears because they want to avoid their liability for payment. The intention of the respondents/defendants to unnecessarily delay the payment of the dues of the appellant/plaintiff also becomes clear from the fact that learned counsel for the respondents states that till date the respondents have not given him the Vakalatnama and in spite of repeated instructions have failed to contact them. It is stated by the counsel that he tried from his regular phone number to call the respondents but they did not pick up the phone but when called from another number the phone was picked up. It is stated by the counsel that he informed the respondents to ensure appearance before the Court but still they have not given any instructions. Learned counsel for RFA No.27/02 Page 4 the respondents, therefore, in view of the above, is discharged from the case.

5. In view of the above, the appeal is accepted. Impugned judgment and decree is set aside. Suit of the plaintiff for recovery of Rs.1,09,441.28/- is decreed alongwith pendente lite and future interest @ 9% per annum simple till payment. Parties are left to bear their own costs. Decree sheet be prepared. Trial Court record be sent back. JULY 07, 2011 VALMIKI J. MEHTA, J. Ne