High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 10 10 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 234 RSA-4967-2017(O&M) Date of decision: 24.03.2025 ...Appellant(s) ...Respondent(s) Jain Sons Expo Exports unit no. 1 & Another Nitin Woollen llen Mills & Another Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- ate Mr. Arun Singal, Advocate for the appellants. Ms. Harjinder Kaur, Advoca Mr. T.P. Singh, Advocate for the respondents. vocate for NIDHI GUPTA, PTA, J. *** Present second appeal has nts l has been filed by the defendants against udgment and decree dated 11.0 judgm 11.07.2017 passed by ed learned Additional Dis l District Judge, Panipat whereby ed eby judgment and decree dated 04.08.2016 pa 6 passed by the learned trial Cou he Court dismissing the suit of the plaintiffs/resp respondents herein, has been set a by set aside; and the appeal filed by the plaintiffs h iffs has been allowed decreeing the ing g the suit of the plaintiffs holding them entitled itled to recovery Rs.1,49,628/- alo er along with interest @ 12% per annum from th m the date of filing the suit till its ac ts actual realisation. 2. The parties shall hereinaft eir inafter be referred to as per their status before ore the learned trial Court i.e. ap
Legal Reasoning
nd appellants as “defendants” and respondents a ts as “plaintiffs”. SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) 3. Brief facts of the case as Page 2 of 10 10 (cid:1) at as set out in the plaint are that plaintiff No.1 o.1/respondent No.1 herein, is tiff is a partnership firm. Plaintiff No.2/respond ondent No.2 herein, namely Rakes oel akesh Goel, and one Yogesh Goel are partners ers in the said Firm. Plaintiff No. he No.2 was authorised to file the present suit o it on behalf of plaintiff No.1. App is Appellant No.2/defendant No.2 is stated to be t be the authorised signatory of ap - f appellant No.1/defendant No.1- Firm. 4. It was pleaded by the pla he e plaintiffs in the plaint that the defendant No No.2 had placed a Purchase Orde to rder No.732 dated 01.11.2010 to the plaintiffs iffs; whereafter the plaintiffs had he had sent 15 bags of yarn to the defendant at at the rate of Rs.132/- per kg. Tot by . Total weight of the yarn sent by the plaintiffs iffs to the defendant was 1077.60 as 7.600 kg i.e. net 1077 kg. It was averred that t at the defendants had purchased Bill sed the aforesaid goods vide Bill No.165 dated ted 01.11.2010. The goods were sta by e stated to have been received by the defendant dants and marked its stamp on the of the back side of the Bill. Value of the said good oods was stated to be Rs.1,49,62 nd 9,628/- including VAT @ 5% and surcharge.The The defendant was to pay the afor ays aforesaid amount within 15 days from the date ate of purchase as per the prevailin ter ailing custom in the market. After expiry of 15 da 5 days, the plaintiff had called defen he efendant No.2 for payment of the aforesaid amo amount but the defendants had p ne ad prolonged the matter on one pretext or the r the other. On 27.11.2010, the p gal e plaintiff No.1 had sent a legal notice to the d he defendants which was duly recei he eceived by them. After notice, the SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) plaintiffs again gain approached the defendants to Page 3 of 10 10 (cid:1) ey ts to make the payment, but they refused to do do so. Earlier also, the defendant to ant Firm had issued a cheque to the plaintiff tiff Firm for a sum of RS.1,26, is ,26,932/-. The plaintiff Firm is maintaining p g proper account books. Accordin as rdingly, aforesaid transaction was duly reflected ted in Form LS-9 of VAT. On 10.02.2 to 02.2011, the defendant refused to pay the afores oresaid amount. Hence, present suit suit was filed on 05.09.2016. 5. Notice of the suit was g ho as given to the defendants who appeared and and resisted the suit by filing writt al written statement. Besides formal objections, it , it was pleaded in the written ot tten statement that suit is not maintainable, ble, the plaintiff has no locus stand he tandi and cause of action etc. The defendant de denied all the averments made for de in the plaint and prayed for dismissal of th of the suit. 6. 7. No replication was filed. On the basis of pleadings es ngs of the parties, following issues were framed b ed by the learned trial Court vide or e order dated 30.09.2011:- “1. Whether the plaintiff is entitle of ntitled for a decree for recovery of Rs.1,49,628/- alongwith interes as terest @ 18% per annum as alleged?OPP 2. Whether the suit of the plaintif the intiffs are not maintainable in the present form?OPD 3. Whether plaintiffs have no cau ndi o cause of action and locus-standi to file the present suit? OPD 4. Relief.” SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) 8. On the basis of pleading dings and oral & documentary Page 4 of 10 10 (cid:1) evidence addu adduced by the parties, the learne arned trial Court decided issue No.1 against t nst the plaintiff; and issues No.2 an .2 and 3 against the defendants and in favour vour of the plaintiffs as no evide evidence was produced by the defendants to s to show that the suit of the plaint laintiffs was not maintainable or that plaintiffs tiffs had no cause of action or loc r locus to file the suit etc; and accordingly vid ly vide judgment and decree dated ted 04.08.2016, the learned trial Court had dis dismissed the suit of the plaintif intiffs holding the plaintiffs not entitled to rec recover Rs.1,49,628/- or interest th st thereupon. 9. In appeal, the learned Low Lower Appellate Court reversed the above sa said judgment and decree of t of the learned trial Court and decreed the the suit of the plaintiff vide ju judgment and decree dated 11.07.2017 th thereby holding that the respond pondents/plaintiffs were “...held entitled to rec recover Rs.1,49,628/- along with ith interest @ 12% per annum from the date date of filing the suit till its actual re al realisation...”. Hence, present peal. second appeal 10. Learned counsel for the the appellants/defendants inter alia submits th its that the suit of the plaintiffs has b has been wrongly decreed by the learned Lower wer Appellate Court as it is an adm admitted fact on record that the original order rder No.732 dated 01.11.2010 was as never brought on file by the respondents. ts. It is submitted that despite ite an order dated 28.09.2015 passed by th the learned trial Court directin cting the plaintiffs to produce SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) original Purcha rchase Order No.732 dated 01.11.2 .11.2010, yet, the plaintiffs failed Page 5 of 10 10 (cid:1) to do so. It i It is submitted that accordingly, gly, the learned trial Court had rightly dismiss missed the suit of the plaintiffs. 11. It is further submitted t ed that in reversing the well- reasoned jud judgment of the learned trial rial Court, the learned Lower Appellate Cou Court has wrongly held that it wa was proven on record that the plaintiffs had had duly supplied material to the the defendants by way of Bill (Ex.P3) alleged eged to have been issued by one N ne Nitesh Mittal. It is submitted that however, ver, the said Nitesh Mittal has not b ot been examined in the witness box to prove t ve the said Bill. Moreover, there is re is discrepancy in the Purchase Order (Ex.P10 .P10) which shows that order of pu f purchase of 1200 kg yarn was placed @ Rs.1 Rs.130/- per kg; whereas as per th er the Bill (Ex.P3), 1077 kg yarn was supplied lied at the rate of Rs.132/- pe per kg. It is submitted that accordingly, th ly, the said reliance placed by the lea e learned Lower Appellate Court upon Ex.P3 wa 3 was also not called for.Furthermor more, the Purchase Order is of 1 pm whereas th as the Bill is of 10:10 am i.e. the said said Bill (Ex.P3) was issued prior to even placin acing of the Purchase Order (Ex.P10 .P10). It is accordingly submitted that the judgm udgment and decree of the learne arned Lower Appellate Court is based on misr misreading of the evidence. Even P en PW2 has never admitted that supply was ma s made by the plaintiff Firm to the the defendant. In fact, PW2 has denied Ex.P3. .P3. Moreover, the seal on the b e back of Ex.P3 is not of the defendant No No.1. This fact has been admitted tted by PW2 when he was called SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) Page 6 of 10 10 (cid:1) for examinatio ation. It is accordingly prayed that hat the impugned judgment and decree of the the Lower Appellate Court be set as t aside. 12. On d, the other hand, learned counsel for the respondents/p s/plaintiffs opposes prayer made ade on behalf of the appellants and submits th its that no ground is made out to in to interfere in the well-reasoned judgment an and decree of the learned Lower Ap r Appellate Court. 13. I have heard learned coun ounsel for the parties and gone through the the record with their able assist ssistance. I find merit in the submissions a ns advanced on behalf of the appell pellant. 14. It is admitted fact on recor ecord that the plaintiffs failed to produce the o he original purchase order No.732 .732 dated 01.11.2010. Only a photocopy the y thereof was brought on record a rd as Ex. P-10. Accordingly, the appellant/defe defendant had moved an applicat lication seeking direction to the plaintiff to pro produce the original Purchase Ord Order bearing PO No.732 dated 01.11.2010 fo 0 for proper adjudication of the ca e case. The said application was allowed by the the learned trial Court vide order rder dated 28.09.2015(Annexure A1), directing ting the plaintiff “...to produce origi original purchase order P.O. No. 732 for proper roper adjudication of the case...”. . Even then, the plaintiff had failed to produ roduce the original order. As such, a ch, an adverse inference is liable to be drawn ag n against the plaintiff. 15. Furthermore, there is an an admitted discrepancy in the order as place laced by the defendant and the s he supply made by the plaintiff. SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) Page 7 of 10 10 (cid:1) The Purchase ase Order (Ex.P10) shows that order rder of purchase of 1200 kg yarn was placed @ d @ Rs.130/- per kg; whereas as p as per the Bill (Ex.P3), 1077 kg yarn was supp supplied at the rate of Rs.132/- pe per kg.One of the grounds on which the lear learned lower Appellate Court has has allowed the appeal filed by the plaintiffs iffs is that the plaintiffs had stated t ed that as they had only 1077 kg of yarn in th their stock, as such, as per Ex.P Ex.P3, only 1077 kg yarn was supplied to th to the defendant Firm. Even if th if the said version is accepted, plaintiff is sti still unable to explain the differ ifference in the rate of ₹130/– between Purc Purchase Order (Ex.P10) and Supply pply Bill rate of ₹132/–.There is nothing on rec n record to indicate as to with whom hom the ‘oral negotiations’ had taken place in ce in this regard. Ld. Counsel for for the plaintiff has also been unable to expl explain as to how the Purchase Orde Order is of 1 pm whereas the Bill is of 10:10 am am i.e. the Bill (Ex.P3) was issued ued even prior to placing of the Purchase Orde Order (Ex.P10). 16. It is in this background tha that the learned trial Court had non-suited the the plaintiffs on account of followi lowing findings:- “13....The plaintiff has produced o ced on record the purchase order Ex. P 10. The perusal of the docu documents shows that Jain Sons Export has placed an order of 120 f 1200 Kg. Yarn with the rate of 130/-, total amount of Rs. 1,56, 1,56,000/- The plaintiff has also produced on record Ex. P3, which hich is alleged to be the bill no. 165 by which the plaintiff has sold s sold the goods to the defendant in the said bill the quantity of the f the yarn is shown as 1077 Kgs. For the rate of 132/- and the b he bill amount of total in 1,49, SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) Page 8 of 10 10 (cid:1) 628/-. The defendant denied tha d that they have not purchased any such goods from the plaintiff intiff firm rather the documents has been falsely prepared by the p the plaintiffs. Both the documents Ex. P 10 i.e. i.e. the purchase order and the bill invoices No. 165, placed on re on record and the comparison of the documents has shows that t at the variation in the quantity and the rate of goods in the purch urchase order. The quantity was shown as 1200 Kg. and the rate rate of 130/- Rs, but in the bill invoices of the No. 165 the quant uantity shown as of 1077 Kg. for the rate of 132/- Rs. Both two d wo documents differ from each other. The Ex. P 3 i.e. bill invoices oices No. 165 bears the name of Nitesh Mittal through whom the the bill was prepared or sent, but the said Nitesh Mittal was no as not examined by the plaintiff to prove the existence of the docu documents Ex. P3. Since the said Naresh Mittal was not examined ined as a witness by the plaintiff, the documents placed on record i ord is not said to be duly proved.
Decision
In view of the above discussion, t on, this court has the considered opinion that plaintiff has faile iled to discharge the onus. Therefore, issue no. 1 is decided a ed against the plaintiff.” 17. However, in allowing the p he plaintiff’s appeal, the learned Lower Appella pellate Court has taken note of the the fact that “...bill Ex.P3 which bears seal of r l of respondent-defendant no.1 firm firm on its back as a token of receipt of good goods so supplied....”. However, DW , DW2 Rajender Yadav, Manager of the defenda endant No.1 Firm (who had appear peared for both, the plaintiffs as PW2 well as as for defendants as DW2), has ad s admitted in his re-examination conducted on on 01.03.2016 that as a normal p al practice, no doubt when any SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) goods comes es into the defendants’ Unit, stam stamp of the defendant Firm is Page 9 of 10 10 (cid:1) affixed on the the backside of the bill. However, ver, “on the backside of the bill (Ex.P3), the sta e stamp of Jain Sons Export is not not affixed.” Clearly, therefore, the judgment ent of the learned Lower Appe ppellate Court is based on a misreading of g of the testimony of DW2 in this re is regard.Moreover, PW2/DW2 is the authorised rised person/Manager of defendant dant No.1 Firm and therefore, he could depose ose regarding the affairs of defend fendant No.1 Firm. As such, no adverse infere ference can be drawn that Ruchi J chi Jain, proprietor of defendant No.1 Firm did x. did not step into the witness box. 18. It was also denied by by PW2/DW2 in his cross- examination d on dated 09.07.2015 (Annexure A e A2) that “...In this record no where the sign signature of the Vinay Jain is there. here. Vinay Jain is not authorized signatory...”. ..”. Learned Lower Appellate Court urt therefore wrongly held that defendant No. No.2 is authorised signatory of defe defendant No.1. It has also been held by the le he learned Lower Appellate Court urt that Nitesh Mittal who had prepared Bill ( Bill (Ex.P3) was not required to be e be examined in the witness box to prove the sa he said Bill, particularly when bill be ll bears stamp of defendant No.1 Firm on its ba s back on a token of receipt of go f goods. However, this reason is fallacious as as, the learned Lower Appellate late Court has overlooked that PW2/DW2 ha has admitted thrice in his cross oss-examination that defendant No.2 has noth othing to do with defendant No.1; o.1; that Purchase Order No.732 is not signed ned by the defendant No.2; and e nd even Nitesh Mittal who had SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1) Page 10 of 10 10 (cid:1) prepared the the Bill (Ex.P3), has not been e en examined by the plaintiffs. Judgment of of the learned Lower Appellate C ate Court is based on selective reading of the the evidence of DW2. 19. At the risk of repetition, fro , from the above facts, it is clear that a compar parison of the Purchase Order (Ex.P (Ex.P10) and bill invoices No.165 (Ex. P-3) show hows that there is unexplained varia variation in the quantity and rate of goods in in purchase order. Bothdocumen ments differ from each other. Moreover, Bill Bill No.165 (Ex.P3) bears name of of Nitesh Mittal through whom the bill was pr s prepared or sent but said Nitesh tesh Mittal was not examined by plaintiffs to pr o prove the existence of document ents (Ex.P3). Since Nitesh Mittal was not exam xamined, therefore, documents pla placed on record were not said to be duly pro proved. 20. In view of the above, pre present appeal is allowed. The judgment and and decree dated 11.07.2017 holdin olding the respondents/plaintiffs “...entitled to r to recover Rs.1,49,628/- along with with interest @ 12% per annum from the date ate of filing the suit till its actual re al realisation...”, is set aside; and the suit filed b ed by the plaintiffs stands dismissed ssed. 21. Pending application(s) if an if any also stand(s) disposed of. 24.03.2025 Sunena Whether speaki Whether report eaking/reasoned: Yes/No Yes/No portable: (Nidhi Gupta) Judge SUNENA 2025.03.28 15:17 I attest to the accuracy and integrity of this document (cid:1)