Smt. Anguri Devi Charitabl vs N.K. Jain

Pradeep Nandrajog, J.—Heard learned Counsel for the parties.

The appellants have failed to obtain leave to defend vide impugned order dated 20.4.2007. The result is that a decree in sum of Rs. 4,75,490/- has been passed against the appellant together with interest @ 24% per annum from the date of filing of the suit till realization + cost.

The claim of the respondent was that the appellant No. 1 has established an engineering college at Gurgaon i.e. appellant No. 2 and for equipping its laboratory where Physics and Chemistry was to be taught, a purchase order was placed upon it by the appellant No. 2 and that pursuant to the said purchase order, goods were supplied on different dates vide bill No. 104, 105, 106, 107 and 115. Stating that the total value of the goods supplied under the bills was Rs. 4,47,184/- and admitting having received as advance payment Rs. 1,50,000/- it was stated that balance amount was due and payable. Further stating that as per the bills it was entitled to receive interest @ 24% per annum, suit aforenoted was filed.

Seeking leave to defend, the appellants informed that after purchase order was placed by them, goods were supplied by the respondent only vide bill No. 105 in sum of Rs. 1,92,471/-. It was stated that the supply was delayed and was not up to the specification .Thus, payment pursuant to the bill No. 105 was disputed. Pertaining to the other 4 bills it was denied that any delivery was effected.

Learned Trial Judge has considered the defence and in relation to the dispute raised qua bill No. 105 has held that the supplies were admittedly made on 22.5.1998 and since there was no contemporaneous documents showing that the goods were rejected, holding that having appropriated the goods, no triable issue arose as regards the amount claimed for bill No. 105, finding returned is that no triable issue arises qua said plea.

Pertaining to the other bills, learned Trial Judge has held as under:

The plaintiff has placed on record photocopy of the inauguration card of the defendant institute. It shows that the infrastructure of the institute was completed. According to defendant, he sent notice to plaintiff for not sending the material within stipulated time. No such notice is on the file, and hence, all the pleas taken by defendant appears to be without any basis. If the plaintiff did not send all the goods to the defendant well in time, he should have informed plaintiff. There is nothing from defendant side to that effect. The defendant has also not disclosed if the goods/material was managed from other sources.

Learned Counsel for the appellant has shown to us the bills relied upon by the plaintiff. Learned Counsel points out that save and except bill No. 105 dated 22.5.1998 in respect whereof, on the bill itself, acceptance of the goods on delivery stands noted, on no other bill is a memo of acceptance recorded.

We have questioned learned Counsel for the respondent/plaintiff whether there is any material with the respondent to show that goods under bill No. 104, 106, 107 & 115 were delivered. Learned Counsel very fairly concedes that he has none.

The presumptive reasoning of the learned Trial Judge resulting in a summary judgment is incorrect. As noted from the reasoning of the learned Trial Judge, merely because the college has become operational would not mean that a presumption would arise that the college has received the goods from the plaintiff.

The learned Trial Judge ignored a very vital fact being the conduct of the respondent to have got acknowledged on bill No. 105 the delivery of the goods by the respondent to the college and receipt thereof by the college. No such endorsement being on the other bills, a triable issue would certainly arise whether the college received the goods under the other bills. More so for the reason the respondent has no delivery challan or any other document to evidence delivery.

Thus, we allow the appeal and set aside the impugned order dated 20.4.2002 and as a consequence we set aside the consequential decree dated 20.4.2002.

The application filed by the appellant seeking leave to defend is allowed.

The appellant shall file the written statement on the date which the learned Trial Judge would notify after revival of the suit.

Parties are directed to appear before the learned District Judge on 20.10.2008 for further proceedings.

No costs.

Certified copy of this order be supplied to learned Counsel for the parties on payment of costs.

TCR be returned.