Harish Manusukhani v. Ashok Jain

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. November 19, 2008 mm

* IN THE HIGH COURT OF DELHI Judgment reserved on : October 15, 2008 % Judgment delivered on : November 19, 2008 + RFA 4/2008 HARISH MANSUKHANI …… Appellant Through: Mr. Adarsh Ganesh, Advocate VERSUS ASHOK JAIN …… Respondent Through: Mr. K.C. Jain, Advocate CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes. 3. Whether judgment should be reported in Digest? Yes. : PRADEEP NANDRAJOG, J. 1. The appellant i.e. the defendant is aggrieved by the judgment and decree dated 1.7.2007 passed by the learned Trial Court whereby the suit filed by the respondent has been decreed in sum of Rs.11,53,470.50 (Rupees Eleven Lacs Fifty Three Thousand Four Hundred and Seventy and Paisa Fifty) together with pendente lite and future interest @ 6% per annum. The break up of the amount is Rs.9,61,941.05/- as the amount shown as outstanding in the statement of account, Ex.PW-1/1; Rs.1,92,816.68 towards sales tax due on account of ST-35 forms not being supplied; and Rs.2,200/- as the notice charges paid to the lawyer when the pre-suit notice of demand was raised vide Ex.PW-1/3. 2. For sake of convenience we shall be referring to the parties as the plaintiff and the defendant. 3. Case of the plaintiff was as pleaded in para 1 of the plaint as under:- "That the plaintiff is the proprietor of M/s. Jain Plastic Works and is a manufacturer of various items of plastic goods and is having its regd. Office at 9090, Gali Zamir Wali, Nawab Ganj, Azad Market, Delhi – 110006 and the defendant had been purchasing plastic goods on credit basis from the plaintiff and the sale transactions and its part payments were duly maintained and reflected in the statement of account maintained by the plaintiff, copy of which is annexure A." 4. The statement of account, Annexure A, reflects that as on 30.5.2005 a sum of Rs.9,61,941.05 is payable being a debit entry in said sum. It was further pleaded that despite assurances, the defendant did not issue any ST-35 form for which Rs.1,92,816.68 became payable towards sales tax. 5. The defendant disputed the liability to pay as reflected in the statement of account relied upon by the plaintiff. 6. At the trial, besides examining himself as PW-1, plaintiff examined his field officer, Sh. Rakesh, as PW-2. 7. The plaintiff proved the statement of account referred to in the plaint as Ex.PW-1/1. 128 bills drawn in the name of the defendant on various dates between 4.4.2004 till 2.5.2005 were collectively proved as Ex.PW-1/2. Lawyer"s notice dated 1.9.2005 raising the demand before suit was filed was proved as Ex.PW-1/3. The notice served during trial under Order 12 Rule 8 was proved as Ex.PW-1/5. A notice of demand dated 4.7.2006 issued by the Sales Tax Authorities raising a demand on the plaintiff in sum of Rs.1,91,529/- for sales tax due for the assessment year 2004-05 was proved as Ex.PW-1/7. In respect of no proof being with the plaintiff by way of acknowledgment from the side of the defendant pertaining to receipt of the bills Ex.PW-1/2 or the goods there-under, in harmony with the pleadings in the plaint, PW-1 deposed that due to cordial relationship and there being goodwill between the parties, the precaution of obtaining signatures of the defendant or its representative on the bills or when goods were delivered was not observed. However, PW-2 Mr.Rakesh the field officer of the plaintiff, examined as PW-2, deposed to the effect:- "That all the goods supplied to the defendant either to himself or at this instructions directly to his customers were sent from our factory at Narela, Delhi. The defendant used to call me at his residence cum office at CB/14C, Shalimar Bagh, Delhi – 110088 and he used to tender his bill (of the same goods as being sent by us) with the instructions to further deliver the said goods to his customers/parties such as M/s. Arbo Pharmaceuticals, Kirti Nagar, New Delhi, M