Sar Agencies vs Kalinga International

Valmiki J Mehta, J.—The challenge by means of this regular first appeal is to the impugned judgment and decree dated 30.11.1996 whereby the suit of the Respondent/plaintiff for recovery of money with respect to the goods supplied was decreed. The bills in question by which the Respondent claims to have supplied the goods to the Appellant are Ex.PW1/2 dated 25.3.1989 for Rs. 8678.77/-, Ex.PW1/3-3A dated 16.3.1989 for Rs. 75,000/- and Ex.PW1/4 dated 1.8.1989 for Rs. 8497/-.

The Appellant/Defendant appeared and contested the suit on the ground that no materials was received by it from the Respondent pertaining to these bills and in fact materials pertaining to these bills were received by another contractor at site Mr. Niranjan Singh and who in fact made part payment of Rs. 72,263/- with respect to these bills.

The only issue before this Court, and which was also the issue before the trial Court, was whether the Appellant received the electrical goods under the bills exhibited as Ex.PW1/2 to Ex.PW1/4. I may note that as per the trial Court Record, at the time of exhibiting these bills, there was objection to the exhibition of these documents as there was no proof of receipt of two bills by the Respondent and on the one on which there is an acknowledgement, the same was only a photocopy.

For fastening liability upon the buyer of goods, it is a sine qua non for the seller/plaintiff to prove that the goods were in fact received by the Appellant/buyer. A reference to the 3 bills i.e. Ex.PW1/2 to PW1/4 shows that there is no endorsement of receipt on the bills i.e. Ex.PW1/3 and PW1/4. Only on one bill i.e. Ex.PW1/2 there is an endorsement of receipt of one person called Shivji Singh, however, there is no evidence at all as to who this person Shivji Singh is and whether at all he was in the employment of the Appellant/Defendant. The Respondent/plaintiff could have very well proved this fact that Shivji Singh was an employee of Appellant by showing earlier bills received by Sh. Shivji Singh on behalf of Appellant, if Shivji Singh was the employee of the Appellant, however, no such earlier bills showing endorsement of Shivji Singh have been filed. Obviously, therefore Shivji Singh was not an employee of the Appellant. The curious aspect, and the admitted fact, is that out of the total value of Rs. 92,700/- of these bills, a payment of Rs. 72,263/- was made by one Sh. Niranjan Singh. Quite clearly therefore it was Sh. Niranjan Singh who received the goods under the subject bills and not the Appellant.

In my opinion, the impugned judgment and decree is clearly illegal and perverse because no monetary liability can be fastened upon a person without first proving that in fact such a person has received the goods. Onus of proof in this regard was on the Respondent/plaintiff to show that the Appellant in fact received the goods. As already stated, there is no endorsement of receipt on two out of the three invoices and in fact out of an alleged outstanding amount of Rs. 92,700/-, a sum of Rs. 72,263/- has been paid by Sh. Niranjan Singh.

The learned Counsel for the Respondent/plaintiff placed reliance upon the legal notice dated 17.11.1990, Ex.PW1/5, and argued that the stand of the Appellant qua this notice shows that in fact amount was due from the Appellant. I do not agree. A reference to this notice Ex.PW1/5 shows that it is a general notice for an amount due against statement of account and there is no specific reference in this notice to the subject bills. It is only if there was reference to these three bills in the subject notice, would the Appellant have an opportunity to deny the same. The Appellant, in fact, replied to the legal notice by his reply dated 9.12.1990 Ex.PW1/D1 and in which the Appellant took the clear stand that there were no dues of the Appellant to the Respondent and all the dues of the Respondent/plaintiff stand paid off. Therefore, the notice sent by the Respondent/plaintiff was a general notice not referring to specific bills and the reply of the Appellant/Defendant, Ex.PW1/D1 was therefore also a general reply that there was nothing due. I, therefore, do not agree with the counsel for the Respondent that liability can be fastened upon the Appellant by virtue of Ex.PW1/5.

The impugned judgment and decree therefore being clearly illegal and perverse is accordingly set aside. The suit of the Respondent/plaintiff shall therefore stand dismissed. Since the impugned judgment and decree is set aside, but since the decree stands executed and the Respondent/plaintiff has received the decretal amount, therefore the Appellant will be entitled to restitution of the amounts as per Section 144 of the Code of Civil Procedure, 1908 in accordance with law. Decree sheet be prepared. Trial Court record be sent back.