Exquisite Decors P. Ltd v. Bakelite Hylam Ltd

RAJIV SAHAI ENDLAW, J DECEMBER 3, 2015 "bs"..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd December, 2015 + RFA 331/2004 EXQUISITE DECORS P. LTD. ..... Appellant Through: Mr. Ripin Sood, Adv. Versus BAKELITE HYLAM LTD. ..... Respondent Through: Mr. P.S. Bindra, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 23rd September, 2003 of the Court of Smt. Sunita Gupta, Additional District Judge (ADJ), Delhi decreeing Suit No.351/1998 filed by the respondent for recovery of Rs.4,97,532/- comprising of principal amount of Rs.1,51,537/- towards the price of goods sold and delivered and Rs.1,07,537.22 on account of sales tax not re-imbursedand balance towards interest together with future interest @ 9% per annum from the date of filing of the suit till realisation. 2. Notice of the appeal was issued and vide ex-parte ad-interim order dated 2nd June, 2004, subject to the appellant depositing the decretal amount in this Court, the execution of the impugned judgment and decree was stayed. The appellant on 21st July, 2004 stated that the decretal amount had been deposited in the Trial Court. The same was ordered to be kept in a fixed deposit. The appeal, on 19th July, 2006 was admitted for hearing and was dismissed in default of appearance of the appellant on 10th April, 2012. On application of the appellant, the appeal was restored to its original position. The counsels have been heard. 3. Though in the suit, the following issues were framed on 8th April, 1999: "(i) Whether the plaintiff is a duly incorporated and the plaint has been signed and verified by a duly authorised person? OPP (ii) Whether the suit is within limitation? OPP (iii) Whether the price settled between the parties was inclusive of Central Sales Tax? OPD (iv) To what amount, if any, is the plaintiff entitled? OPP (v) Whether the plaintiff is entitled to claim any interest? If so, at what rate and to what amount? OPP (vi) Relief." but the counsel for the appellant has raised the following three contentions only; (A) that the learned ADJ has erred in deciding Issue No.(i) in favour of the respondent/plaintiff; the respondent/plaintiff failed to prove that the plaint in the suit had been signed and verified and the suit had been filed by a duly authorised person on behalf of the respondent/plaintiff; (B) that though the sole witness of the respondent/plaintiff in his cross- examination stated that he could not tell which of the invoices claimed to have been raised by the respondent/plaintiff on the appellant/defendant had remained unpaid and the learned ADJ erred in decreeing the suit on the basis of the statement of account and which is not permissible under Section 34 of the Indian Evidence Act, 1872; and, (C) that the learned ADJ has wrongly drawn adverse inference against the appellant/defendant. 4. In view of the aforesaid limited nature of the controversy, it is not deemed appropriate to set out the facts in detail and / or the evidence thereon and the findings of the learned ADJ with respect thereto in detail and which all is exhaustively dealt with in the judgment of the learned ADJ. 5. The counsel for the appellant/defendant on the first of the aforesaid contentions has invited attention to the Power of Attorney executed by the respondent/plaintiff in favour of the signatory to the plaint and has contended that the same authorised only signing of the plaint and not the institution of the suit and thus the suit was not proved to have been instituted by a duly authorized person on behalf of the respondent/plaintiff. 6. I am unable to agree. Clauses 1 to 4 of the said Power of Attorney are as under: "1. To sign plaints, affidavits, vakalat and other papers for filing suits. 2. To appear and plead on behalf of the Company. 3. To give evidence and to obtain monies from the Courts. 4. To file Execution Petition/ Applications and Recovery Proceedings and to give receipt for mo