Kapson Plastics Pvt. Ltd. vs Eagle Fashions

Valmiki J Mehta, J.

Learned Counsel for the Respondent states that she sent a notice of discharge to the Respondent, giving the date of hearing, however, the Respondent has shifted its address without any intimation to the counsel. Accordingly, Ms. Sunita Harish, Advocate is discharged from the case. Application stands disposed of.

RFA No. 713/1999

I have already allowed the application for discharge on behalf of the counsel who was appearing for the Respondent. The Respondent was duty bound to ensure representation on its behalf, however, it has failed to do so. I have, therefore, heard the learned Counsel for the Appellant and am proceeding to dispose of the appeal. 2.

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 16.10.2009 whereby the suit of the Respondent/Plaintiff was decreed for a sum of Rs. 50,000/- alongwith interest @ 18% per annum.

The facts of the case are that the Respondent/Plaintiff filed a suit for recovery of Rs. 1,10,040/- with interest @ 24% on the ground that the Respondent/Plaintiff had paid a sum of Rs. 50,000/- in advance to the Appellant/Defendant for supply of plain crinkle sheets and since the Appellant/Defendant failed to supply the same, the Respondent/Plaintiff was entitled to refund of the advance of Rs. 50,000/- as also the loss caused of Rs. 56,640/- for purchasing the crinkle sheet @ Rs. 90/- per sq. ft. instead of Rs. 42/- per sq. ft. as was agreed upon.

The Appellant/Defendant appeared and contested the suit. The Appellant/Defendant contended that the Respondent/Plaintiff wanted to fabricate an iron shed in its factory and therefore requested the Appellant/Defendant to suggest a person who can do the needful. The Appellant/Defendant suggested the name of one Mr. Raju Kumar Singh who was known to the Respondent/Plaintiff. The Appellant/Defendant claims to have done so in hope of getting an order of crinkle sheets from the Respondent/Plaintiff. It was pleaded that the monies which were paid by the Respondent were partly in cash and partly by cheque to Sh. Raju Kumar Singh. The cheque was drawn in the name of the Appellant/Defendant as the Respondent asked the Appellant to be intermediary and the cash amount was paid directly to Sh. Raju Kumar Singh. The amounts, which were received by cheque were further paid by the Appellant to Sh. Raju Kumar Singh, and for which the Appellant obtained necessary documents/vouchers from Sh. Raju Kumar Singh.

The trial Court, after pleadings were complete, framed the following issues:

Whether the Plaintiff has paid the alleged amount of Rs. 50,000/- to the Defendant against an order for supply of 1180 sq. ft. of plastic FRP Plain Crinkle Sheet? OPP

Whether the Plaintiff is entitled for the interest, if so, at what rate and on what amount and for what period? OPP

Whether the payment of Rs. 35,000/- was given by the Plaintiff to the Defendant to be paid to Mr. Raju Kumar Singh who was allegedly to have been introduced by the Defendant to the Plaintiff for doing the angle iron work in the factory of the Plaintiff? OPD

Whether the suit has been filed without any cause of action? OPD

Relief.

While dealing with the issues, the trial Court has held that the Respondent/Plaintiff failed to prove that any order was placed upon the Appellant/Defendant with respect to crinkle sheets. Accordingly, the trial Court dismissed the suit of the Respondent/Plaintiff to the extent of damages which were claimed by holding that since there was no contract, there was no question of grant of any damages to the Respondent/Plaintiff. The trial Court, however, held that since a sum of Rs. 50,000/- was found to have been paid to the Appellant/Defendant by the Respondent, decree with respect to the said sum ought to be granted in favour of the Appellant/Defendant.

I am of the opinion that the impugned judgment and decree is clearly illegal and requires to be set aside. This is because of the reason that once the trial Court held that there was no contract between the parties, surely, there was no reason why the Appellant/Defendant would have at all received any money from the Respondent/Plaintiff for the supply of crinkle sheets. Not only that, the Appellant/Defendant led the evidence of Sh. Raju Kumar Singh and also proved the vouchers to show payment was made by the Appellant/Defendant to Sh. Raju Kumar Singh. The Respondent/Plaintiff in fact concealed its book of accounts and did not file the same as noted by the trial Court and which would have established that monies were paid for Sh. Raju Kumar Singh.

In view of the above, the impugned judgment and decree requires to be set aside because otherwise the same would mean a double whammy upon the Appellant/Defendant because on the one hand it has paid the monies received by it to Sh. Raju Kumar Singh yet it would still be required to pay the money second time over to the Respondent/Plaintiff.

In view of the above, the impugned judgment and decree is set aside. Suit of the Respondent/Plaintiff stands dismissed. Decree sheet be prepared. Trial Court record be sent back.