Sh.B.N.Wadhwani Sole Prop. Of M/S … vs M/S Calcom Electronics Ltd. & Ors. on 6 July, 2010

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                 Date of Judgment : 06.7.2010

+            RSA No.42/2005 AND CM No.2150/2005

SH.B.N.WADHWANI SOLE PROP. OF
M/S JEEWAN DIESELS (DELHI)       ...........Appellant
              Through: Mr.D.D.Singh, Advocate.

                   Versus

1.   M/S CALCOM ELECTRONICS LTD.
2.   SHRI ARUN BHATIA
3.   SHRI SUSHIL MALIK
4.   M/S SPECTRAL SERVICES & CONSULTANTS(P) LTD.
                                     ..........Respondents
                 Through: Mr.V.K.Srivastva, Advocate for R-1 &
                          R-3.
                          Mr.Rakesh Kumar Garg &
                          Ms.Noopur Singhal, Advs. for R-4.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                           Yes

INDERMEET KAUR, J.(Oral)

1.      Plaintiff M/s Jeewan Diesels (Delhi) through its proprietor

Sh.B.N. Wadhwani had agreed to supply 750 KVA D.G. sets to

defendant no.1 to be installed at 23/1, Wazirpur Industrial Area,

Delhi-52. Advance payment of Rs.4,00,000/- was received by the

plaintiff on 29.3.1989 from defendant no.4.      Plaintiff placed an

order for the supply of the said D.G. sets with its manufacturer

namely M/s Kirloskar Cummins Ltd.        The D.G. Sets were to be

commissioned at the site by 30.4.1989.           In June 1989 the

manufacturer raised the prices of the D.G.sets by 10% with effect

from 1.7.1989.     The said information was communicated by the

plaintiff to the defendant. The enhanced price, however, was not
RSA No.42/2005                                             Page 1 of 5
 paid by the defendant to the plaintiff.      Suit for this amount i.e. a

sum of Rs.1,45,000/- along with interest was accordingly filed.

2.      The Trial Court vide judgment dated 7.1.2004 dismissed the

suit.   Five issues have been framed. Ex.PW-1/5 dated 22.2.1991

i.e. the „C‟ Form issued by the defendant to the plaintiff had been

considered as also the other documentary evidence including the

letters Ex.PW-1/7 to Ex.PW-1/11 sent by the plaintiff to the

defendant.       The communication Ex.PW-1/17 i.e. the purported

letter sent by the plaintiff to the defendant informing him about

the increase in the price of the D.G.sets was held not proved.

Trial Court had further held that the invoices depicting the price

at which the plaintiff had purchased the D.G.sets from the

manufacturer have also not been placed on record.            In this view

of the matter the suit of the plaintiff was not proved and was

accordingly dismissed.

3.      The first Appellate Court endorsed the finding of the Trial

Judge. The appeal was disposed of on 2.11.2004. While disposing

of the appeal the Appellate Court inter alia held as follows:-

        "The basic question involved in the present appeal is as to
        whether the price hike of Diesel Generating Set by M/s
        Kirloskar Cumins was duly intimated to the respondent or
        not. The appellant in this regard relied on letter Ex.PW-1/7,
        but failed to establish as to by which mode the said letter
        was sent to the respondent.    Secondly, the appellant had
        with-held the invoice by which the Generating Set was
        allegedly purchased from M/s Kirloskar Cumins.      Had the
        said invoice been placed before the Court it would have
        dispelled all the doubts concerning enhancement of the
        price of the equipment.   The appellant thus with held the
        vital evidence for which learned trial court rightly drew
        adverse inference against the appellant.   I do not see any
        reason to interfere with the order passed by learned Civil
        Judge. Also, I do not find any perversity in the impugned
RSA No.42/2005                                                   Page 2 of 5
       judgment and decree passed by the learned Trial Court. "


4.    Before this Court, it has been urged that a substantial

question of law has arisen and which has been formulated in para

10 of the appeal. It is submitted that the „C‟ Form Ex. PW-1/5 was

an admitted document which admits of the transaction between

the parties.     It had been issued by the defendant to the plaintiff

depicting a transaction of Rs.20,90,000/- between the parties.

This document being an admitted document no further evidence

was required to be led before the Court as an admitted document

is not required to be proved.

5.    Counsel for the appellant has placed reliance upon 2002 II

AD(Delhi) 335 Taneja Skins Co.Pvt. Ltd. Vs. Bharath Skins

Corporation.      This judgment recites the undisputed proposition

that where a document including a „C‟ Form is not disputed it may

lend support to the claim of the plaintiff that an amount is due.

6.    The question of law which has arisen and which has been

formulated by this Court reads as follows:-

      "Whether the „C‟ Form Ex.PW-1/5 dated 22.2.1991 was a

      valid acknowledgment of the transaction between the

      parties and was by itself sufficient to decree the claim of the

      appellant/plaintiff."

7.    Perusal of the record shows that this question has to be

answered in the negative and against the appellant. Both the fact

finding Courts below have held that the plaintiff had failed to

adduce evidence to prove his claim that he was entitled to the

escalated amount of 10% in the increase in the price of the

D.G.sets.      Apart from the fact that Ex.PW-1/17 i.e. the letter

purportedly issued by the plaintiff informing the defendant of the
RSA No.42/2005                                               Page 3 of 5
 escalated price, not having been proved, the plaintiff had also

failed to place on record the invoices which would have depicted

the price at which he had purchased the D.G.sets i.e. whether at

the old rate or whether they were purchased at the increased and

enhanced rate i.e. 10% over and above the agreed rate. No such

evidence had been led before the Courts below.

8.    Ex.PW-1/5 has been scrutinized. It has been relied upon by

the Trial Court while dealing with issue no.4. This document is an

admitted document. It merely depicts the sale transaction

between two registered sale tax payees i.e. between the plaintiff

and the defendant, both the entries are dated 11.1.1990. This

document had been considered by both the Courts below. It does

not by itself in any manner prove the case of the plaintiff. The

case of the plaintiff was that he had to install the D.G.sets with the

defendant no.1 by 30.4.1989. Even as per his own showing the

price of the D.G.sets had been enhanced after 1.7.1989 i.e. much

after his contract period.           The transactions mentioned in

Ex.PW-1/5 are dated 11.1.1990, which are again of a much later

point in time.

9.    The „C‟ Form is only a form issued by Sales Tax Department

to the registered sale tax payers.          If A, a registered    sales tax

payer buys any goods from B ,another registered sale tax payer

and issues a „C‟ Form to him; in such an eventuality the sale tax

will be collected and deposited by the issuer in the treasury of the

government       meaning   thereby    the    issuer   of   the   „C‟   Form

undertakes to pay the sales tax.

10.   Claim of the plaintiff could not have been decreed on this

document alone as has been urged before this Court.

RSA No.42/2005                                                    Page 4 of 5
 11.   There is no discrepancy or fault in the findings of both the

Courts below.    The substantial question of law is answered

accordingly. Appeal is without merit. The appeal and the pending

application are dismissed.



                                        INDERMEET KAUR, J.

JULY 06, 2010
nandan

RSA No.42/2005 Page 5 of 5