National Consumer Co-Operative Federation of India Ltd. vs Navjivan Traders and Another

Valmiki J Mehta, J.—This case is on the ''Regular Board'' of this Court since 3.1.2011. Today, this case is effective item No. 1 on the ''Regular Board''. It is 12 noon and no one has appeared for the Respondents. I have therefore heard the arguments of the learned senior counsel for the Appellant and after perusing the record am proceeding to dispose of the appeal.

The challenge by means of this regular first appeal u/s 96 of the Code of Civil Procedure, 1908, is to the impugned judgment and decree dated 20.12.2000 whereby the trial court decreed the suit for recovery of the Respondent against the Appellant with respect to the claims for value of goods supplied namely dal/pulses and also refund of security amounts.

The facts of the case are that two contracts dated 14.8.1984 and 27.8.1984 were entered into between the parties for supply by the Respondent of various dals/pulses. The supplies were to be made by the Respondent/plaintiff to Food Corporation of India (FCI) on behalf of the Appellant. The Appellant had to deposit a sum of Rs. 87,000/- as security under the contract dated 27.8.2004 and a security of Rs. 64,300/- under the contract dated 14.8.1984. The gunny bags in which, dals/pulses were to be supplied belonged to FCI and therefore Appellant gave a security deposit of Rs. 33,000/- for the gunny bags.

The case of the Respondent/plaintiff was that the complete supplies were effected and therefore, accordingly, the Respondent/plaintiff was entitled to return of the securities amount as also payments with respect to certain dals/pulses supplied, which originally were found to be defective, and which were replaced by the Respondent/plaintiff. In the suit therefore, the following amounts were claimed:

(i) Rs. 1,51,300/- being the security amounts of Rs. 87,000/- and Rs. 64,300/-

(ii) Rs. 33,000/- towards security of gunny bags,

(iii) A sum of Rs. 1,23,467/- towards dals/pulses supplied i.e., those dals and pulses which were found to be defective and were subsequently replaced.

The Appellant/Defendant contested the case and its stand was that the Respondent/plaintiff supplied defective goods whereby deductions were made by FCI from the payments which were to be received by the Appellant/Defendant. The Appellant/Defendant also contended that since the Respondent/plaintiff failed to return the gunny bags, FCI deducted amounts towards this head also.

The trial court has by the impugned judgment and decree has held that the Respondent/plaintiff has proved to have replaced the defective dals/pulses and was therefore entitled to the value of Rs. 1,23,467/- The trial court has also held that since the contract was complete, the Appellant/plaintiff was bound to refund the security amounts under different heads to the Respondent/plaintiff.

On behalf of the Appellant, learned senior counsel Mr. J.P. Sengh argued that the onus of proof lay upon the Respondent/plaintiff to show that the defective dals/pulses of Rs. 1,23,467/- were in fact replaced, and which onus, the Respondent/plaintiff failed to discharge because except an oral statement in the examination in chief no documentary evidence was furnished from the FCI that the defective dals/pulses were replaced. It has been argued that the oral statement of the witness of the Respondent/plaintiff stood rebutted by a positive assertion of the witness of the Appellant in his examination-in-chief that the defective dals/pulses were not replaced, and on the contrary, the amounts were recovered by FCI from the Appellant/Defendant on account of the defective dals/pulses. Mr. Sengh, Sr. Adv. has further argued that oral statement of the Respondent/plaintiff''s witness in the examination-in-chief of return of the gunny bags was again contradicted by the deposition of the witness of the Appellant/Defendant that the gunny bags were not returned to the FCI and consequently, FCI made deductions from the payments made to the Appellant/Defendant.

Mr. Sengh, Sr. Adv. further argued that the deductions which were made by FCI from the bills which the Appellant submitted to FCI, were much larger than the claims made by the Respondent/plaintiff towards the value of the dals/pulses and the securities. Attention of this Court has been drawn to the positive assertion of DW-1 in his examination-in-chief that FCI on account of failure of the Respondent/plaintiff to replace the defective dals/pulses and the gunny bags deducted a sum of Rs. 10 lacs towards the defective supplies and a sum of Rs. 2,99,500/- towards non-return of the gunny bags. It was further argued that once it is found that the dals/pulses were not replaced and the FCI deducted amounts towards these defective dals/pulses and also other recoveries made by FCI towards gunny bags, the suit of the Respondent/plaintiff clearly could not be decreed.

I completely agree with the submissions as made on behalf of the Appellant/Defendant. It was the Respondent/plaintiff who came to the court with a stand that dals/pulses of the value of Rs. 1,23,467/- were replaced. On these issues, oral statements cannot discharge onus of proof, more so, because such oral statements were contracted by the oral statements of the witness of the Appellant/Defendant. Admittedly, no documentary evidence was placed by the Respondent/plaintiff in the trial court showing the replacement of the defective dals/pulses of the amount of Rs. 1,23,467/- Obviously, therefore, the trial court has committed a grave illegality and perversity in decreeing the suit for the amount of Rs. 1,23,467/- without it having been proved in the suit of replacement of dals/pulses for the amount of Rs. 1,23,467/- Once the dals/pulses are defective and the witness of the Appellant/Defendant, a servant of a public-sector undertaking, deposed that a total amount of Rs. 12,99,500/- was recovered from the Appellant on account of defective dals/pulses and gunny bags not returned, there was no scope for decree of the suit inasmuch as documentary proof on behalf of the Respondent/plaintiff was not only not filed with respect to dals/pulses replaced but also no certificate was filed from FCI of having returned the gunny bags. I, in fact find that amounts of Rs. 12,99,500/- have been recovered from the Appellant/Defendant by the FCI which are much larger than what is being claimed by the Respondent/plaintiff.

In view of the above discussion, the appeal is accepted. The impugned judgment and decree is set aside. The suit of the Respondent/plaintiff is therefore dismissed. Decree sheet be prepared accordingly. The amount deposited by the Appellant in this Court along with accrued interest, if any, be refunded back to the Appellant. Trial court record be sent back.