S.V. Electricals Ltd. vs Sylvania and Laxman Ltd.

Pradeep Nandrajog, J.—Vide impugned judgment and decree dated 31.11.2010, the suit filed by the plaintiff for recovery of Rs.

48,89,814/-together with pendente lite and future interest @ 21% per annum has been dismissed with costs in sum of Rs. 75,000/-against the

plaintiff.

It is the case of the plaintiff that on orders being placed from time to time it supplied goods to the defendant at a credit of 45 days and raised 31

invoices which were accepted. Since sales tax was not to be paid by the defendant and in lieu thereof it had to issue ""C-Forms"" after obtaining the

same from the Sales Tax Department, three C-Forms were issued in respect of the goods supplied and this was evidence of acknowledgment of

the liability. Pleading that from one unit of the plaintiff goods worth Rs. 25,21,285/-were supplied under 10 invoices between the dates

08.03.1995 to 09.08.1995 and goods worth Rs. 7,94,985/-were supplied from the other unit and for which 21 invoices were raised between the

dates 25.03.1994 to 24.06.1995; suit amount claimed was Rs. 25,21,285/-+ Rs. 7,94,985/-along with interest in sum of Rs. 11,79,168/-and Rs.

3,94,376/-for the supplies effected by the two units. Pre-suit interest @ 21% per annum was calculated.

In support of the plea that the goods were delivered it was stated that the transporter ""Jet Roadlines Corporation"" had delivered the goods.

The defendant denied the claim as pleaded but stated that some goods were received from the plaintiff between May 1995 to 20.9.1995 and

for which four cheques were issued as under:-

Cheque No. Date Amount

511645 1.5.1995 Rs. 3,39,395/

926007 27.5.1995 Rs. 1,75,000/

643655 31.5.1995 Rs. 1,77,901/

51152 20.9.1995 Rs. 1,90,000/-

Total Rs. 8,82,296/

It was further pleaded by the defendant that as per practice between the parties the plaintiff would get the documents retire through its banker

i.e. State Bank of India Indore to whom the original invoice, along with the goods receipt were handed over with the clear instructions that the

documents should be presented to the banker of the defendant against money being realized against the invoice. This not being done, it was

pleaded, that the same was proof of the falsity of the case pleaded in the plaint. As regards the three C-Forms referred to in the plaint, the

defendant pleaded that during the period in question, there was labour and staff unrest at its factory and office and that some disgruntled employee

of the defendant had picked up the said three C-Forms and manipulated the same to the benefit of the plaintiff.

The learned Trial Judge has found complete inchoateness, inconsistencies and irreconcilable documentary evidence placed on record and has

thus dismissed the suit.

At the forefront of the proof led by the plaintiff were three C-Forms Ex.P-5(1), Ex.P-5(2) and Ex.P-5(3).

The C-Form Ex.P-5(1) has been issued by the Sales Tax Department on 27.8.1997 but bears the date 15.12.1995 as the date of it being

issued by the defendant. At the rear are mentioned seven bills No.20, 21, 27, 46, 47, 70 and 71 out of which only four bills being No.27, 47

dated 8.3.1995, 70 dated 31.3.1995 and 71 correspond to the bill number on which the suit is based. It may be highlighted here that two bills

relied upon in the plaint are stated to bear No.47 and two bills are stated to bear No.70. The C-Form Ex.P-5(2) has been issued on 18.09.1997

by the Sales Tax Department but bears the date 28.05.1996 as the date of it being issued by the defendant. At the rear are mentioned eight bills

No.59, 60, 79, 80, 81, 82, 153 and 215. Except bill No.153 and 215 the remaining bills have corresponding number of the invoice of the bill

relied upon by the plaintiff. The C-Form Ex.P-5(3) has been issued by the Sales Tax Department on 18.09.1997 but bears the date 28.05.1996

as the date of it being issued by the defendant. At the bottom against the column of particulars of bill is mentioned bill No.47 value of which

corresponds to the value of the invoice relied upon by the plaintiff. In other words the three C-Forms have a reference to only eleven out of the

thirty one invoices/bills raised by the plaintiff and yet the claim in the suit is that the three C-Forms were issued with reference to the goods supplied

under the thirty one bills. In the next paragraph we would be putting in tabular forms a graphic reflection of the stated bills raised and as find a

reflection in the C-Form.

At the trial the plaintiff proved the ""Way Bills"" issued by the courier agency ""ELBEE"" through which the invoices were statedly sent as also the

bills raised by the transporter ""Jet Roadlines Corporation"" and if we may put, in a tabular form, the thirty one bills under which goods were statedly

supplied, reflection thereof in the C-Forms and the corresponding ""Way Bills"" and bills raised by the carrier the same would be as under:-

Bills Date Amount Shown in the C-formCarrier Bills (tallied by

or not. date)

1 7.4.1995 23,378/- No Way Bill Ex.P4(1)@ page

54 part III

5 18.4.1995 20,572/- No Way Bill Ex.P4(2)@ page

56 part III Way Bill

Ex.P4(3)@ page 59 part

III

14 24.4.1995 23,378/- No

16 24.4.1995 23,378 No

26 3.5.1995 18,702/- No Way Bill Ex.P4(4)@ page

62 part III

27 8.5.1995 46,754/- Yes but amount Way Bill Ex.P4(5)@ page

being Rs. 2,79,509/-65 part III

and date 14.2.1995

36 31.1.1995 23378/- No

38 11.5.1995 50,795/- No Way Bill Ex.P4(6)@ page

68 part III

47 8.3.1995 3,59,506/- Yes Receipt Code No.19124

Ex.P2(1) @p.10

47 17.6.1995 1,70,931/- Yes Code No.30811

Ex.PW2/8 @ p.198

50 25.5.1995 50,795/- No

59 4.7.1995 3,78,708/- Yes Code No.30833 Ex.P2(5)

@ p.30 [original at p.200]

60 4.7.1995 3,78,708/- Yes Code No.30834 Ex.P2(6)

@ p.34 [original at p.201]

62 3.6.1995 50,795/- No Way Bill Ex.P4(7)@ page

74 part III

63 3.6.1995 50,795/- No Way Bill Ex.P4(8)@ page

77 part III

64 5.6.1995 50,795/- No Way Bill Ex.P4(9)@ page

80 part III

65 6.6.1995 50,795/- No Way Bill Ex.P4(11)@

page 84 part III

68 9.6.1995 50,795/- No Way Bill Ex.P4(10)@

page 82 part III

69 13.6.1995 51,303/- No

70 14.6.1995 50,795/- No

70 31.3.1995 3,59,506/- Yes Code No.18309 Ex.P2(2)

@ p.14 [Original at p.191]

71 31.3.1995 3,59,506/- Yes Code No.18310 Ex.P2(3)

@ p.18

72 16.6.1995 50,795/- No

78 24.6.1995 50,795/- No

79 80 9.8.1995 -do-do-1,89,355/-do- Yes YesYesYes Code No.19852 Ex.PW-

81 82 do do-do- 2/4 @p.194 Code

No.19853 Ex.PW-2/5

@p.195 Code No.19854

Ex.PW-2/6@p.196 Code

No.19855 Ex.PW-

2/7@p.197

100 13.10.1994 46,754/- No

150 13.12.1994 4,676/- No

205 25.3.1994 33,334/- No

We have noted hereinabove the exhibit marks of the related documents and the page number in the record of the learned Single Judge because

appeal paper books have not been prepared.

The forwarding letters, one of which has not been exhibited, and the others exhibited as Ex.P-1(3), Ex.P-1(6), Ex.P-1(11), Ex.P-1(14) and

Ex.P-1(16) are identically worded save and except the reference to the invoice number, the Hundi Number and the lorry receipt number. We note

only one of them i.e. Ex.P-1(3). It reads as under:

To

The Branch Manager

State Bank of Indore

Amana Branch

Dewas: 455 001

REG. BILL PURCHASED DA/DDR

Dear Sir,

We are enclosing the following documents drawn on Sylvania and Laxman Ltd., 68/1-3, Najafgarh Road New Delhi.

Invoice No.70/94-95 dated 31/03/95 for Rs. 359506.00

Hundi No.52/94-95 dated 31/03/95

L.No.DX-2477 dated 31/03/95 of Jet Roadlines Corporation.

Please credit proceeds to our cash credit account.

INSTRUCTIONS

PRESENT THE DOCUMENT TO PARTY THROUGH STATE BANK OF INDORE M-94, CONNAUGHT CIRCUS BRANCH OPP.

SUPER BAZAR, NEW DELHI.

DELIVER DOCUMENTS AGAINST ACCEPTANCE OF HUNDI. PLEASE ALSO COLLECT CST C-FORM. IF C-FORM IS NOT

GIVEN BY THE PARTY THEN COLLECT EXTRA RUPEES 27554.00.

ALL YOUR DISCOUNTING CHARGES TO BE COLLECTED FROM US.

COLLECTING BANK''S COLLECTION AND REMITTANCE CHARGES TO BE COLLECTED FROM PARTY.

PLEASE COLLECT INTEREST @ 21% AFTER 60 DAYS FROM DATE OF HUNDI I.E. FROM 30/05/95. THIS HUNDI SHOULD

BE RELEASED ONLY AFTER COLLECTING THE PRINCIPAL WITH OVERDUE INTEREST IF NOT PAID ON DUE DATE.

THANKING YOU,

YOURS FAITHFULLY

FOR S.V.ELECTRICALS LTD.

SD/-(ILLEGIBLE) MANAGING DIRECTOR

ENCL: AS ABOVE

CC TO: M/S. SYLVANIA & LAXMAN LTD. 68/1-3, NAJAFGARH ROAD NEW DELHI.

The aforesaid i.e. Ex.P-1(3) is obviously relatable to bill No.47 in sum of Rs. 3,59,506/-and suffice would it be to highlight that learned

counsel for the appellant could only shake his head in disbelief and having no answer, ventured no reply, when asked as to how come the

defendant could receive the goods without receiving the documents, after retiring the same, from its banker to whom plaintiff''s banker had sent the

documents too.

This is the position with each and every alleged transaction.

As we have noted hereinabove the principal amount under the thirty one bills is Rs. 25,21,285/-+ Rs. 7,94,985/-= Rs. 33,16,270/-. As noted

hereinabove the three C-Forms, Ex.P-5(1) to Ex.P-5(3) have a reference to sixteen bills, five of which do not correspond to the number of the

thirty one bills on which the suit is based. The total value of the sixteen bills referred to in the three C-Forms is Rs. 55,42,988/-. It is apparent that

the three C-Forms do not cover the value of the goods statedly supplied under the thirty one bills. Now, it is the positive case of the plaintiff that it

had received the C-Forms for all the goods supplied, a fact which is obviously incorrect. It probablizes that some disgruntled officer or employee,

as claimed by the defendant, during the period of unrest in the factory and the office of the defendant had contrived to manipulate and issue in the

name of the plaintiff three C-Forms, which on their face have contrived dates as noted hereinabove.

It may be true that the defendant has also not made good the defence that it had received goods under four bills for which payment was made

in the sum of Rs. 8,82,296/-, but the fact of the matter remains that the plaintiff had to prove its case and cannot rest on the defence failing, in the

instant case for the reason the plea in the written statement is not one of confession with avoidance. The defendant denied having received any

goods under the thirty one bills referred to in the plaint and merely because it admitted having received goods of much lesser value, under some

other bills but failed to establish the same, would not mean that the positive onus on the plaintiff to prove its case has been discharged.

We have independently reflected, albeit briefly, as above and for the remainder reasoning by us, it be treated that the reasoning of the learned

Single Judge, which could not be shaken by learned counsel for the appellant, is incorporated as our reasoning with our acceptance thereto.

The appeal is dismissed but we leave the parties to bear their own costs.