M/S Dewan Chand & Ors vs Unique Collections Pvt Ltd

S.NO,CHEQUE NO.,AMOUNT,DATE

1.,047559,"60,009",22.12.2010

2.,047557,"1,01,381",03.01.2011

3.,047554,"76,070",07.01.2011

4.,047582,"54,592",15.01.2011

5.,050357,"5,845",16.01.2011

6.,050362,"91,318",20.01.2011

7.,050355,"81,467",25.01.2011

8.,050354,"86,480",26.01.2011

9.,115559,"71,723",30.05.2011

10.,122511,"67,333",20.06.2011

11.,136812,"97,383",15.12.2011

and a correct appreciation of the evidence on record and therefore does not warrant any interference.,,,

He argued that the Tax Invoices and ledger account placed on record duly proved that the appellants had indeed placed order for goods with the,,,

respondent.,,,

He further argued that the appellant had admitted in his appeal that goods were delivered to him and the part payment for the goods supplied was,,,

made which completely demolishes the case of the appellant. He submitted that there is no proof on record of goods being returned to the respondent.,,,

He further contended that some of the cheques issued by the appellant firm were dishonoured which are on the record.,,,

I have heard the learned counsel for both the parties.,,,

At the time of preliminary hearing of the present appeal on 04.11.2016, learned counsel for the appellant was permitted to file appropriate",,,

application to place certain record i.e. (1) proof of payment of bills raised by the respondent for goods supplied, (2) proof of return of defective goods",,,

by the appellant and (3) proof of arriving at a settlement with the respondent. The interim order dated 04.11.2016 passed by this court reads as under:,,,

-,,,

“1. Learned counsel for the appellant states he may be permitted to file an appropriate application for permission to place on record, proof of",,,

payment of bills raised by the respondent (plaintiff) on the appellants (defendants) for the goods supplied, proof of return of defective goods by the",,,

appellant and proof of arriving at a settlement with the respondent.,,,

At the request of learned counsel for the appellant, renotify on 14.02.2017.â€​",,,

However, vide CM No. 17071/2017, the appellant did not file copies of the bills raised or proof of return of defective goods or proof of arriving at",,,

a settlement with the respondent. The appellant has filed incomplete photostat copies of bank statement for the period from 18.01.2010 to 16.02.2016,,,

without mentioning the name of the bank. It also does not bear the requisite certificate under the Bankers Book Evidence Act. Interestingly it does not,,,

cover the entire period of transactions between the parties. The appellant has also filed a copy of the ledger account along with the application, which",,,

is also incomplete and without any certificate of its being a true copy. It does contain details of cheques bearing numbers 047554, 047559, 050357,",,,

050362, 050355, 050356 and 122512, which are already dishonoured and original cheques have been filed on the record by the respondent before the",,,

trial court. The amounts of these cheques are debited to the account of the respondent and after dishonouring of the cheques, the amount has not been",,,

reversed by the appellant in their account books. At the last page, there is a debit entry of Rs.2,50,000/- of 02.02.2010 and prior to that there are",,,

several entries of the year 2011 which shows incorporation of a false and bogus entry. The copy of the bank statement and the ledger in any manner,,,

does not help the appellant.,,,

The appellant has taken contradictory stand in his appeal. In paragraph 3.1 in the appellant’s Appeal, they have mentioned that they had paid",,,

all the bills to the respondent. In paragraph 4.5 of the appeal, the appellant has stated that the ledger account and Tax Invoices would have no bearing",,,

unless there is proof of delivery of goods. In paragraph 4.9 of the appeal, the appellant has stated that goods were never delivered to them and there is",,,

no proof of delivery. These contradictory stands clearly show that the appellant was not forthcoming with the truth and clean hands. On the one hand,,,

he has stated that goods were delivered but returned because they were defective and the payment for these goods was duly made. It has already,,,

been stated in the preceding paragraph that the appellant wanted to bring on record the proof of payment for this amount but failed to do so.,,,

The controversy sought to be created by the appellant with regard to the applicability of Article 14 of the Limitation Act, 1963 instead of Article 1",,,

is of no consequence over here as the appellant has already admitted that the respondent had delivered the goods for which the bills were raised and,,,

that they had falsely claimed having made the complete payment for all the bills pertaining to the period 01.04.2011 till 31.03.2012. Payment has not,,,

been established. Burden to establish payment of bills was on appellant but they did not contest the case. The issue of limitation does not arise here as,,,

even if the appellant’s contention that Article 14 would apply instead of Article 1 is taken to be true, the limitation period prescribed under Article",,,

14 is 3 years which would have started to run from each individual invoice from 23.04.2010 till 31.03.2012. The limitation period under Article 14 being,,,

3 years would have ended for the first invoice on 23.04.2013 while the suit itself was instituted well within limitation of 3 years on 10.05.2012.,,,

PW-1 tendered his affidavit in evidence. He also tendered copy of letter of incorporation of respondent (Ex.PW-1/1), copy of power of attorney in",,,

his favour (Ex.PW-1/2), copies of tax invoices (Ex.PW-1/3 collectively), copies of ledger accounts of the appellant maintained by the respondent from",,,

01.04.2011 to 31.03.2012 (Ex.PW-1/4), original cheques returned dishonoured (Ex.PW-1/5 collectively) and original cheque returning memos (Ex.PW-",,,

1/6 collectively). The appellants had appeared in the Trial Court but failed to file Written Statement and chose to be proceeded against ex-parte. They,,,

did not turn up to cross-examine PW-1 to rebut his evidence. The appellants by their own admission, act and conduct have failed to bring on record",,,

such evidence in this appeal also.,,,

In these facts and circumstances, I find no infirmity in the impugned judgment and decree dated 01.10.2013. The evidence adduced by the",,,

respondent went unrebutted and unchallenged and in the absence of anything to the contrary, the learned trial court has rightly decreed the suit of the",,,

respondent for Rs.7,99,912.85 along with pendent lite and future interest @ 10 % per annum. Therefore, the appeal is dismissed with costs throughout.",,,

It is directed that the respondent shall be entitled to recover the amount of Rs.7,99,912.85 along with pendent lite and future interest @ 10 % per",,,

annum till realization from the appellant.,,,

The appeal is disposed of accordingly.,,,