Vinod Gupta vs Sh. Parmod Manchanda

Valmiki J Mehta, J.—This matter is on the ''Regular Board'' of this Court since 3.1.2011. Today, this matter is effective item No. 11 on the ''Regular Board''. It is 3.15 P.M. and no one has chosen to appear for the parties. I have therefore perused the record and 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 22.8.2001 whereby the suit of the Respondent/Plaintiff for recovery of the balance advance of Rs. 1 lac was decreed with interest at 12% per annum.

The facts of the case are that the Respondent/Plaintiff paid a sum of Rs. 2,25,000/- to the Appellant as advance for supply of pullovers. Since the pullovers were not supplied, the Appellant/Defendant returned two sums of Rs. 80,000/- on 13.1.1995 and Rs. 45,000/- on 16.2.1995 leaving the balance of Rs. 1 lac for which the suit was filed along with the claim of interest. The Defendant/Appellant did not dispute the receipt of the amount but claimed that goods of the total amount of Rs. 2,25,000/- were supplied to the Plaintiff before the scheduled date and since only goods of the value of Rs. 1,25,000/- were found to be defective, the amount of Rs. 1,25,000/- was repayable and was repaid. It was further alleged that the balance goods worth Rs. 1 lac had been utilized by the Plaintiff for the purpose of exports. It was therefore contended that since an amount of Rs. 1,25,000/- already was paid to the Plaintiff on 13.1.1995 and 16.2.1995, in lieu of the defective goods supplied and utilized, consequently, no amount was due to the Plaintiff who had received goods worth Rs. 1 lac.

The trial court by the impugned judgment and decree has held that the Appellant failed to prove that the goods were supplied to the Respondent/Plaintiff. The trial court has said that if there was no alleged settlement as claimed by the Appellant/Defendant that there were defective goods worth Rs. 1,25,000/- and the balance goods were O.K, which were used by the Respondent/Plaintiff because if that was so, then there would surely have been some sort of writing / document to that effect. The trial court has concluded that merely on the basis of an oral statement, the Appellant/Defendant cannot be said to have discharged onus of proof.

I do not find any illegality or perversity in the impugned judgment and decree because it was for the Appellant/Defendant to prove that goods of the value of Rs. 2,25,000/- were supplied to the Respondent/Defendant and that goods worth Rs. 1 lac were used by the Respondent/Plaintiff. A mere oral statement, as rightly held by the trial court, cannot discharge the onus of proof. The trial court has therefore rightly held that the Appellant failed to prove that there was a settlement whereby Rs. 1,25,000/- was to be returned for the defective goods and Rs. 1lac was not to be returned because Respondent/Plaintiff received goods and that amount was utilized for exports. I may also note that in the cross-examination of the Respondent/Plaintiff, he categorically denied that he had received goods or he rejected the goods worth Rs. 1,25,000/- or that an amount of Rs. 1,25,000/- was paid for the rejected goods .

The trial court also held that the suit to be within limitation because the suit was filed on 12.2.1998, and two payments of Rs. 80,000/- and 40,000/- were admittedly made by means of cheques dated 13.1.1995 and 16.2.1995 by the Appellant/Defendant to the Respondent/Plaintiff which was treated as acknowledgement of debt in terms of Section 19 of the Limitation Act.

I, therefore, do not find any illegality or perversity in the impugned judgment and decree which calls for interference by this Court in the appeal. The appeal being devoid of merits, is dismissed leaving the parties to bear their own costs. Interim orders stand vacated and security furnished by the Respondent for release of the part of the decretal amount is discharged. Trial court record be sent back.