M/S Three Star Paper Mills Pvt. Ltd. v. M/S Dewan Kraft System Pvt. Ltd.

1. Whether Reporters of Local papers may be allowed to see the Judgment? NO. 2. To be referred to the Reporter or not? NO. 3. Whether the judgment should be reported in the Digest? No. HIMA KOHLI, J. (ORAL)

1. The present appeal is directed against the judgment and decree dated 10.07.1997 by which, the suit for recovery of Rs.66,990/- instituted by the respondent against the appellant was decreed with costs alongwith pendent lite and future interest @ 18% per annum till realization.

2. Briefly stated, the facts of the case are that in the year 1990, the respondent/plaintiff had instituted a suit for recovery of 2009:DHC:4497 Rs.66,990/- against the appellant (defendant in the court below). The case of the respondent/plaintiff as set out in the plaint was that it was a manufacturer and supplier of modern fibre recovery cum effluent treatment system and flotation machinery. It was averred that the aforesaid goods were sold by the respondent/plaintiff to the appellant/defendant on different dates as set out below:- (a) Bill No. 28 dated 15.10.1987 for Rs.1,76,800/- (b) Bill No. 29 dated 16.10.1987 for Rs.31,200/-

(c) Bill No. 30 dated 16.10.1987 for Rs.25,000/-

3. Sales Tax of Rs.1,000/- was added to the aforesaid Bill NO. 30, making a total sum of Rs.2,34,000/-. The respondent/plaintiff further stated that out of the aforesaid amount of Rs.2,34,000/-, it had received payment of Rs.2,04,000/- from the appellant/defendant, thus leaving a balance sum of Rs.43,500/-, as payable. As the appellant/defendant is stated to have failed to make the payment despite reminders, the respondent/plaintiff instituted the aforesaid suit in the trial court claiming principal amount of Rs.43,500/-, along with interest thereon calculated @18% per annum, amounting to Rs.23,490/-, thus totalling to Rs.66,990/-. The appellant/defendant contested the suit and denied that any amount was due or payable by it to the respondent/plaintiff. After the pleadings in the suit were completed, documents filed and evidence led by the parties, the trial court passed the impugned judgment and decree dated 10.07.1997, decreeing the suit in favour of the respondent/plaintiff. Aggrieved by the said judgment, the appellant/defendant preferred the present appeal.

4. At the outset, counsel for the appellant/defendant draws the attention of this Court to the order dated 29.04.1999 passed in the present appeal. The aforesaid order is reproduced hereinbelow: “Admit. Counsel for the respondent states that so far as the decision on issue No. 10 is concerned, since „C‟ Forms had been supplied in the Court itself, therefore the decision on issue No. 10 has to be modified. We have perused the proceedings on 7th February, 1992 which show that two „C‟ Forms pertaining to Bill No. 28 and 29 were supplied to the plaintiff (present respondent) in the Court itself. Therefore, there was no question of awarding any amount for the same. For that reason conclusion of the Trial Court on issue No. 10 requires to be modified to the extent that since „C‟ Forms were supplied the plaintiff i.e. present respondent would not be entitled to any amount on this count. Let appellant deposit the amount of Rs.25,000/- i.e. the amount of the bill No. 30 alongwith interest as awarded by the Trial Court on that amount. On deposit of this amount execution of decree shall remain stayed.”

5. Counsel for the appellant/defendant submits that in view of the aforesaid order dated 29.04.1999, the grievance in the present appeal is now confined to the findings returned by the trial court in respect of issue No.3, which pertains to Bill No.30 and issue No.11 in respect of the rate of interest payable. He submits that the findings returned by the trial court in respect of Bill No.30, and the rate of interest, covered by issues No.3 & 11 respectively are erroneous and require interference. Issues No.3 and 11 framed by the trial court are as below:

6. Counsel for the appellant/defendant submits that the trial court erred in relying on the deposition of PW[1], Shri Deepak Dewan, who appeared on behalf of the respondent/plaintiff, while completely overlooking the deposition of DW[1], Shri Jagmohan Chawla, who appeared on behalf of the appellant. He submits that the observation of the trial court that the statement of DW[1] was full of contradictions and was evasive on material point is not borne out from a perusal of his testimonial. He contends that the respondent had failed to establish that the goods, subject matter of Bill No.30 were ever delivered to the appellant and having failed to discharge the said onus placed on it, issue No.3 ought to have been decided in favour of the appellant/defendant.

7. To examine the aforesaid submission of the learned counsel for the appellant, this court has gone through the trial court record, particularly, the evidence adduced on behalf of the respondent, namely, the deposition of PW[1] juxtaposed against the statement of DW[1], made in rebuttal on behalf of the appellant. Apart from above, the relevant documents, including, Bill No.30 (Ex.PW1/5), packing list A (Ex.PW1/7), letter dated 12.07.1988 issued by the respondent to the appellant (Ex.PW1/6) have also been examined in the light of the findings returned by the trial court in respect of issue No.3.

8. Shri Deepak Dewan, PW[1] categorically deposed in the witness box that the goods, subject matter of Bills No. 28, 29 and 30 were sent to the transporter for being delivered to the appellant/defendant. Copies of the invoices raised by the respondent/plaintiff on the appellant/defendant are part of the documents filed on the record and marked as Exhibits PW1/3 to PW1/5. It was stated that the goods were sent through a transporter, whose name is mentioned in Ex.PW1/5. A perusal of the said document shows that not only was the name and address of the transporter endorsed on the invoice, but the truck number was also indicated on the said invoice. The said invoice was duly received and it bears a signature of the recipient in urdu language, marked “B”. PW[1] asserted that the said goods were received on behalf of the appellant by a person, who signed the invoice in his presence, at Mark “B”. Reference was made by him to a letter dated 12.07.1988 issued by the respondent/plaintiff to the appellant/defendant (Ex.PW1/6). In the said letter, the respondent/plaintiff not only mentioned Bill No.29, but also Bill No.30 and noted the fact that the appellant/defendant had acknowledged receipt of both the Bills No.29 and 30. Apart from the aforesaid bills, PW[1] mentioned having forwarded a list of materials in the packing list `A‟ (Ex.PW1/7), duly signed by the appellant/defendant. PW[1] was cross-examined by the appellant/defendant. In his cross-examination, it was reiterated by PW[1] that a sum of Rs.25,000/- against Bill No.30 (wrongly typed as Bill No.29 in the evidence recorded in the trial court) was not received by the respondent/plaintiff. It was further stated by PW[1] that the equipments supplied to the appellant/defendant under the order placed by it, could not be completed unless and until all the items as per the quotation were supplied, it being an effluent treatment plant.

9. A perusal of the deposition of PW[1] does not bear out the submission of the counsel for the appellant/defendant that the same was self-contradictory and ambiguous. Merely because PW[1] was unable to specify the name of the person, whose signatures were affixed on the invoice(Ex.PW1/5) in confirmation of the receipt of goods on behalf of the appellant/defendant cannot be a ground for disbelieving the said witness. The appellant/defendant was unable to shake the deposition of the said witness. Similarly, the submission of the counsel for the appellant/defendant that the address shown as “R- 12/48, Raj Nagar, Ghaziabad, U.P.” typed out on the top right hand of Bill No.30, was in fact the residence of the Director of the respondent company and hence, could not have been a godown, is based on surmises and conjectures. There is nothing material placed on the record by the appellant/defendant to disbelieve the statement of PW[1], that the goods were dispatched to the appellant/defendant from the aforesaid godown situated in Ghaziabad.

10. Insofar as the statement of DW[1], Shri Jagmohan Chawla is concerned, the aforesaid witness who was the Managing Director of the appellant company, admitted having received goods against Bills No.28 and 29, but denied having received the goods against Bill No.30. DW[1] stated that as the company had its own workshop, it completed the machinery with its own arrangement and tools and did not purchase the goods against Bill No. 30 from the respondent/plaintiff. DW[1], however, did not deny the quotation price of the plant and the goods mentioned in Bill No. 30 (Ex.PW1/5). He did not deny the fact that the order was placed on the respondent/plaintiff on the basis of price mentioned in the quotation. However, receipt of packing list `A‟ and `B‟, stated to have been sent to the appellant/defendant alongwith the goods was denied by DW[1]. He stated that he had brought the register to show the entries of Bills No.28 and 29 alone. In his cross-examination, the said witness stated that he was unaware of the fact as to whether any record of goods received by the appellant/defendant was maintained or not. The goods mentioned in Bill No.30 were parts of a flotation tank, which DW[1] admitted was a very important part of the effluent treatment plant and the plant could not have functioned in the absence of the said equipment.

11. The trial court arrived at the conclusion that as the flotation tank was a part of the effluent treatment plant and the said plant could not function in the absence of the parts mentioned in Ex.PW1/5, it was hard to believe that if the respondent/plaintiff would not have supplied the said goods to the appellant/defendant, the latter would have made the payments in respect of the other items, subject matter of Bills No.28 and 29. The trial court cannot be faulted for disbelieving the statement of the witness, DW[1] that the items in question were manufactured by the appellant/defendant in its workshop and installed by it on its own for making the effluent treatment plant operational. Taking notice of the fact that the appellant/defendant did not lodge any complaint with the respondent at any stage that the goods in question were defective, the court rightly arrived at the conclusion that the goods against Bill No.30 were duly supplied by the respondent to the appellant and the amount against the said Bill was outstanding and payable by the appellant.

12. Having perused the deposition of DW[1], the contradictions and ambiguities therein are quite apparent. The replies to pertinent questions put to DW[1] in his cross-examination show that he deliberately chose to make ambiguous statements with regard to the quotation received for the effluent treatment plant. At one place, DW[1] stated that he had not received any quotation at all whereas immediately thereafter, he stated that it was correct that in the quotation, the price of the plant was quoted as Rs.2,40,000/- and that the order was placed on the respondent/plaintiff after agreeing upon the price mentioned in the quotation. While accepting the explanation offered by the respondent/plaintiff with regard to not maintaining a running account as plausible, the trial court held that the respondent/plaintiff had successfully proved that the goods as mentioned in Ex.PW1/5, were part of the quotation, Ex.PW1/1 and had been duly supplied to and received by the appellant/defendant. In view of the aforesaid discussion and in the light of the evidence led by both sides, this Court finds no reason to differ with the findings of the trial court returned in respect of issue No.3 that payment in respect of Bill No.30 (Ex.PW1/5) was outstanding and was liable to be paid by the appellant/defendant to the respondent/plaintiff.