M/S Ajay Industrial Corporation Ltd. v. Sushil Kumar Aggarwal

1. 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 15.2.2017 by which trial court has dismissed the suit for recovery of Rs.19,87,291/- along with interest.

2. The subject suit was filed by the appellant/plaintiff pleading that the appellant/plaintiff supplied to the respondent/defendant PVC Pipes and fittings with respect to which an 2018:DHC:5043 account was maintained between the parties and as per which the principal amount due as on date of suit was Rs.14,19,494/-. To this amount interest on being added, the amount due as on the date of the suit became Rs.19,87,291/-. Since the respondent/defendant failed to pay the amount due therefore the subject suit was filed.

3. The respondent/defendant contested the suit by filing his written statement. In the written statement it was pleaded that appellant/plaintiff approached the respondent/defendant to act as a Clearing and Forwarding Agent of the appellant/plaintiff. Agreement was entered into between the parties at Kolkata. A fresh agreement was also entered into on 16.1.2009 at Delhi. It was further pleaded that on 26.4.2010 respondent/defendant received an e-mail from the appellant/plaintiff that the Clearing and Forwarding Agreement was proposed to be closed, however, the distributorship of the respondent/defendant will remain. The cheque of Rs.[5] lacs which was dishonoured was said to be the advance payment. The respondent/defendant pleaded that goods worth Rs.66,50,461/- were given to the appellant/plaintiff in full and final settlement and therefore no further dues remain in terms of the meeting between the parties on 18.9.2010.

4. Trial court framed the following issues:- “1. Whether the plaintiff is entitled for decree of recovery for Rs.19,87,291/-? (OPP)

2. Whether the plaintiff is entitled for interest? If so, at what rate and for what period? (OPP)

3. Whether the suit is bad for non-joinder of necessary party? (OPD)

4. Whether instant suit is barred by the principles of resjudicata? (OPD)

5. Relief.” 5(i). The suit has been dismissed by the trial court inasmuch as appellant/plaintiff failed to lead evidence in spite of repeated opportunities. Since the appellant/plaintiff failed to lead evidence in spite of repeated opportunities, therefore, the evidence of the appellant/plaintiff was closed by the trial court vide Order dated 8.12.2016. 5(ii) No doubt, courts are liberal in granting opportunities to the parties to lead evidence but in this case it is noted that opportunities granted to the plaintiff are no less than 13 in number, i.e. prior to the evidence being closed of the appellant/plaintiff on 8.12.2016, for as many as 13 dates the appellant/plaintiff failed to lead evidence. On the dates which were fixed for leading of evidence of the appellant/plaintiff, for one reason or the other no evidence was led and these dates are 29.4.2013, 1.10.2013, 3.1.2014, 16.4.2014, 21.8.2014, 5.11.2014, 3.2.2015, 21.5.2015, 17.12.2015, 11.3.2016, 5.5.2016, 27.5.2016 and 29.9.2016. 6(i) Counsel for the appellant/plaintiff argued that when the evidence of the appellant/plaintiff was closed vide Order dated 8.12.2016, the case was fixed for arguments on the application filed by the appellant/plaintiff under Order XII Rule 6 CPC by the earlier Order dated 23.9.2016, and therefore the trial court could not have asked the appellant’s/plaintiff’s witness to appear on the same date of 8.12.2016 and on such failure close the evidence of the appellant/plaintiff.

(ii) In my opinion the argument urged on behalf of the appellant/plaintiff would sound to be appealing on the first blush because the date of 8.12.2016 was fixed for arguments on the application under Order XII Rule 6 CPC, but the necessary facts to be noted are that court while disposing of the application under Order XII Rule 6 CPC by keeping it as open and not pressed at that stage gave time on the same day to the appellant/plaintiff to bring its witness or witnesses, and which was not done, with the further fact that filing of the application under Order XII Rule 6 CPC by the appellant/plaintiff was mischievous because surely after failing to lead evidence for 13 dates which were fixed, the application under Order XII Rule 6 CPC was filed only for ulterior intent of somehow or other to continue the suit in spite of not leading evidence for which over a dozen opportunities were already granted. Therefore in my opinion trial court has done no error if on the date fixed of 8.12.2016 trial court asked and gave time and kept the case pending for a later point of time on the same day for the appellant/plaintiff to bring its witnesses and which admittedly were not brought.

7. Therefore since there was no evidence of the appellant/plaintiff, and the appellant/plaintiff has failed to prove the issues framed on 11.1.2013, hence the trial court in my opinion was justified in dismissing the suit as there was no evidence of the appellant/plaintiff with respect to issues of which onus was upon the appellant/plaintiff.

8. At one stage during the arguments, I put it to the counsel for the appellant/plaintiff that since the suit is for recovery of Rs.19,87,291/- plus interest, can the appellant/plaintiff consider that if substantial costs of Rs.[3] lacs are imposed upon the appellant/plaintiff for two opportunities to be granted to the appellant/plaintiff to complete its evidence, but counsel for the appellant/defendant stated that costs are heavy and therefore cannot be paid by the appellant/plaintiff. In my opinion in the facts of the case such as the present where 13 opportunities were granted and not utilized by the appellant/plaintiff to lead evidence, imposition of costs of Rs.[3] lacs in a suit filed for recovery of Rs.19,87,291/- with interest would have served the ends of justice for any delay and prejudice caused to the respondent/defendant, but once the appellant/plaintiff refuses to pay the costs, this Court cannot consider any fresh opportunities to be granted to the appellant/plaintiff to lead evidence.

8. There is no merit in the appeal. Dismissed.

VALMIKI J. MEHTA, J AUGUST 10, 2018 Ne