M/S LGF SYSMAC (INDIA) PRIVATE LTD. v. M/S SHALIMAR ENGINEERS

1. In the present appeal the respondent is served by affixation at the Faridabad address which was stated in the memo of parties of the suit plaint. Ld. counsel for the appellant/plaintiff also states that the respondent/defendant did not appear in the trial court in spite of service through publication and was accordingly proceeded ex parte. Accordingly, it is held that the respondent is served in the present appeal. 2019:DHC:786

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 16.02.2018 by which the trial court has dismissed the suit for recovery of Rs. 4,79,717/-, filed by the appellant/plaintiff on account of the respondent/defendant not supplying goods which were to be purchased by the appellant/plaintiff and for this purchase the appellant/plaintiff had advanced to the respondent/defendant a total amount of Rs.5,29,000/vide cheques dated 19.11.2013 and 21.04.2014 for Rs. 3,29,000/- and Rs. 2,00,000/- respectively.

3. The facts of the case are that the appellant/plaintiff had filed the subject suit pleading that it is dealing in the manufacture of architectural hardware and fabrication machinery. The respondent/defendant partnership firm was dealing in manufacturing of press component which is used by the appellant/plaintiff for manufacturing of the machinery. The respondent/defendant had approached the appellant/plaintiff for sale of certain hardware and respondent/defendant had supplied one hardware vide Invoice NO. 2348 dated 05.10.2013 for Rs. 38,966/-. Parties had entered into an agreement and at the time of signing of the agreement, the appellant/plaintiff had given a Cheque dated 19.11.2013 for Rs. 3,29,000/- as an advance payment. After the agreement was entered into between the parties, the appellant/plaintiff gave various purchase orders to the respondent/defendant and also released another Cheque dated 21.04.2014 of Rs. 2,00,000/-. The respondent/defendant in spite of receiving the huge amount as advance was delaying the manufacturing of hardware. Some hardware were thereafter supplied by the respondent/defendant vide four Invoice Nos. 54 dated 02.07.2014, 61 dated 14.07.2014 and 69 and 70 both being dated 30.07.2014. One hardware supplied by the respondent/defendant vide Invoice No. 70 for Rs. 7,922/- was found to be defective and hence was returned to the respondent/defendant. Since the respondent/defendant failed to supply the hardware, and had even failed to return the advance, therefore the appellant/plaintiff sent a Legal Notice dated 24.04.2015. Thereafter, the subject suit was filed for refund of Rs. 4,06,541/- alongwith interest amount of Rs. 73,176/-.

4. The respondent/defendant failed to appear in the trial court in spite of service and thus was proceeded ex parte.

5. The appellant/plaintiff proved its case and proved the various Purchase Invoices as Ex. PW1/3, PW1/5, PW1/7, PW1/9 and PW1/11 etc. Filing of the suit was proved through Resolution dated 13.02.2017 as Ex. PW1/17. The Agreement entered into between the parties dated 20.11.2013 was proved as Ex. PW1/2. The Ledger Account was filed and proved as Ex. PW1/12 alongwith the Certificate under Section 65B of the Indian Evidence Act, 1872 as Ex. PW1/13. The bank account statement to show payment of advance amount was filed and proved as Ex. PW1/14. The e-mails issued to the respondent/defendant were proved collectively as Ex. PW1/15 alongwith Certificate under Section 65B of the Indian Evidence Act as Ex. PW1/16.

6. The trial court has dismissed the suit by observing that the appellant/plaintiff had failed to prove the Legal Notice dated 24.04.2015 and that the appellant/plaintiff has failed to prove payment of the amounts of Rs.3,29,000 and Rs.2,00,000/- inasmuch as the Bank Account Statement was not certified under the Bankers’ Book Evidence Act, 1891.

7. In my opinion, the trial court has committed a complete illegality inasmuch as the relations between the parties were already proved through various invoices which were exhibited by the appellant/plaintiff in the evidence. The statement of account of the bank showing payment by the appellant/plaintiff to the respondent/defendant was proved as a 'downloaded document' and it is not necessary that this statement of account had to be rejected, merely because exhibition of a document on account of the same not being in accordance with law has to be specifically objected to and once there is no objection, inasmuch as the respondent/defendant was already ex parte, the trial court could not have held that the bank account statement was not proved vide R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752. It is therefore held that the appellant/plaintiff had proved payment of amounts to the respondent/defendant in terms of the Bank Account statement proved as Ex. PW1/14. The Ledger Account was proved as Ex. PW1/12. Therefore, the appellant/plaintiff had proved that it was entitled to refund of the amount of Rs. 4,06,541/- as the principal amount and this principal amount was claimed in the suit.

8. In view of the aforesaid discussion, this appeal is allowed. Impugned Judgment of the trial court dated 16.02.2018 is set aside. Suit of the appellant/plaintiff will be decreed for a sum of Rs. 4,06,541/- alongwith pendente lite and future interest @ 9% per annum simple till payment. Appellant/plaintiff will be entitled to the costs of the suit and the appeal. Decree sheet be prepared. Appeal is accordingly allowed and disposed of. All pending applications are also disposed off.

FEBRUARY 06, 2019 VALMIKI J. MEHTA, J Ne