Vinod Kumar v. Kay International Ltd & Ors.

1. The present appeal arises out of judgment and decree dated 6th October, 2016 by which the suit filed by the Appellant for recovery of an amount of Rs.99,72,736/- against the Defendant/Respondent was dismissed.

2. The brief background is that the Plaintiff claims to have been supplying to the Defendant wood and timber packing materials as per the purchase orders placed by the Defendant. Parties were maintaining a running account in respect of the sale transactions. According to the Plaintiff, as on 30th September, 2015, an outstanding Rs.82,52,120/- was to be paid by the Defendant which the Defendant failed to pay. The Plaintiff states that several telephonic demands and personal visits were made to the Defendant requesting that payment be made, however, the same was not done. The Plaintiff was then constrained to issue a legal notice dated 13th October, 2015 but payment was not made despite the receipt of the said notice. The 2018:DHC:3155 present suit came to be filed seeking the following reliefs. “Prayer:- It is therefore, most respectfully prayed that this Hon’ble court may graciously be pleased to:a) Pass a decree of an amount of Rs.99,72,736.19/- (Rs. Ninety nine lacs seventy two thousand seven hundred thirty six and nineteen paisa only) in favour of plaintiff and against the defendant, holding him liable to pay the same to the plaintiff. Interest pendent elite and future at the agreed rate of 24% per annum from the date of filing of the suit till the realization be also awarded to the plaintiff and against the defendant. a) Direct the defendant to pay the cost of proceeding and suit. b) Pass such other and further order/ relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice.”

3. Summons was issued in the suit on 24th November, 2015. On 17th March, 2016 the following order was passed. “Vakalatnama filed on behalf of the defendant and date sought for filing written statement. However thirty days from date of service have expired today. WS will not be taken on record unless accompanied with application explaining the reasons for delay in filing the written statement. Defendant is also directed to appear in person. Be put up on 28.3.16.”

4. Again on 28th March, 2016 time was sought to file Written Statement. On 25th April, 2016, the following order was passed by the Trial Court: “Date sought for filing WS on the ground that defendant no. 2 is hospitalized due to operation of his eyes. During the course of the arguments it has been submitted that the goods have not been supplied as stated by the plaintiff and let the source of the goods be brought on the record to show that whether the plaintiff was in position to supply such goods to which plaintiff has no objection and he is ready to file the documents on the next date of hearing. The advance copy be supplied to the Cl. for the defendant enabling him to file the WS. The Cl. for defendant has offered 75% of the actual bills without prejudice but the plaintiff is not ready for the same and he is submitting that he require whole of the amount of the suit. Be put up on 16.5.16.”

5. The Defendant again sought time on 14th July 2016, but the Written Statement was not filed. On 28th July, 2016, the Defendant was proceeded ex-parte. The Trial Court recorded the evidence of PW-1 Sh. Vinod Kumar on behalf of the Plaintiff and evidence was closed. Finally, the suit was dismissed with the finding that the Plaintiff has failed to place on record any documents to show that actual supplies was made by the Plaintiff to the Defendant.

6. In the present appeal, notice was issued on 6th February, 2017. An application under Order XLI Rule 27 came to be filed being CM No.4522/2017. In the said application, the Appellant/Plaintiff sought to file Annexures A-9 to A-13 which was various cash bills and invoices as also purchase orders, online VAT returns and payment advices. These documents, according to the Appellant establish that the purchase orders were in fact placed upon it by the Defendant and also establish that the Plaintiff had also supplied the packing material and towards the said supplies, Central Sales Tax and VAT payment has also been made. According to the Appellant, all these documents deserve to be taken on record as these documents would show that the Appellant has in fact supplied the goods to the Defendant in response to purchase orders placed by the Defendant.

7. A perusal of the Trial Court record reveals that the Appellant/Plaintiff filed a printout of the ledger account maintained by his accounts department to show the total outstanding amount payable by the Defendant. The said ledger account also shows the amount deposited towards CST and local taxes, loading charges, and freight charges. The ledger account is maintained by Bhim Sain & Sons which is a sole proprietary concern of Mr. Vinod Kumar. The Appellant has also placed on record purchase bills, computer printouts and audited balance sheet along with a certificate under Section 65B in support of the ledger account. The Trial Court however dismissed the suit on the ground that no supporting documents were filed.

8. Insofar as the Defendant is concerned, they have failed to even file their defence and they have remained ex-parte.

9. The present suit is a commercial dispute between parties. In commercial litigation, parties ought to exhibit due diligence in filing all the documents in their power and possession. Both the Plaintiff and the Defendant have not prosecuted the suit with diligence or put forward their defence.

10. A perusal of the additional documents which the Appellant has now placed on record shows that there are a large number of documents which the Appellant could have filed along with its evidence. However, it failed to do so. This court is of the view that upholding the dismissal of the suit in the light of voluminous documents which are available with the Plaintiff would result in injustice. The amount of which recovery is sought is substantial. Hearing of the appeal on merits cannot be effectively done as none of the documents sought to be produced now were filed before the Trial Court and even the Defendant’s defence and evidence was not there before the Trial Court.

11. On a balance, this court is of the opinion that the Appellant/Plaintiff ought to be permitted to place all the documents in its power and possession. The Defendant can also file its defence and contest the suit, however, subject to terms.

12. The following directions are accordingly passed: a) The Plaintiff is directed to file all the documents in its power and possession to support its case before the Trial Court within 8 weeks. b) After receipt of the documents, the Defendant shall file its Written Statement and all documents in its power and possession within four weeks; b) The Trial Court shall appoint a Local Commissioner to record the evidence of the parties. The expenses of the Local Commissioner shall be shared equally between the parties; c) The Defendant shall furnish security for the principal amount of Rs.82,52,120/- to the satisfaction of the Trial Court within 8 weeks from today.

13. Matter be listed before the Trial Court for directions. The trial shall be conducted expeditiously and an endeavour would be made to dispose of the suit within a period of 12 months from today.

14. List before the Trial Court on 7th June, 2018.

15. Trial Court record be sent back.