Manoj Godha v. Mr.Subhash Barjatiya & Ors

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J. September 22, 2008 rk

* IN THE HIGH COURT OF DELHI Judgment reserved on : August 29, 2008 % Judgment delivered on : September 22, 2008 + RFA 674/2005 MANOJ GODHA ..... Appellant Through: Mr. Ashok Bhasin, Sr. Advocate with Mr. A.K. Vashishtha, Advocate VERSUS SUBHASH BARJATIYA & ORS. ...... Respondents through: Mr.Gaurav Duggal, Advocate for respondent No.1 Mr. S. Vaidyalingam with Mr.Tulshi Dass for respondents No.2 to 4 CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice Sunil Gaur 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Two preliminary issues have been decided by the learned Trial Judge vide impugned judgment and decree dated 4.4.2005. Both issues have been decided against the appellant. The result is that the suit filed by the appellant has been dismissed. The two issues which have been decided read as under:- "Issue No.1-A: whether the suit is not maintainable in view of preliminary objection No.1 in the WS of defendant No.1? OPD-1 Issue No.2: Whether suit is valued properly for the purposes of court fee and jurisdiction? OPP" 2. Preliminary objection No.1 in the written statement filed by defendant No.1 reads as under:- "1. That the present suit is not maintainable in present form. The plaintiff by way of mandatory injunction wants to recover the alleged jeweler, which is not maintainable under the Specific Relief Act." 3. The suit filed by the plaintiff, to say the least, is most unartistically drafted and if pleadings are read pedantically, indeed the findings returned by the learned Trial Judge have to be upheld. But for the reasons hereinafter recorded, since law requires pleadings to be construed liberally and to subserve the cause of justice an opportunity should ordinarily be granted to a party to take corrective action, the appellant shall live to fight the battle against the respondent No.1 on another day. 4. Stating in the plaint vide para 1 that the appellant is the sole proprietor of M/s. Shantivijay Jewellers, in para 2 of the plaint it is stated that the appellant was owner of jewellery detailed in said para. In para 3 of the plaint it is stated that defendant No.1 introduced himself to the plaintiff as a dealer of precious jewellery and requested the plaintiff to provide him unique jewellery, preferably royal jewellery, for sale in the market. In para 3 of the plaint it is pleaded that the appellant told defendant No.1 that such jewellery is very rare and costly and that defendant No.1 should make advance payment to the plaintiff in sum of Rs.4 crores. 5. In para 4 of the plaint it is stated that defendant No.1 agreed to arrange the sum of Rs.4 crores in the next 6-7 months. In para 5 of the plaint it is stated that in June, 1992, defendant No.1 introduced defendant No.2 to the plaintiff, who gave Rupees 1.5 crores to the plaintiff as security for the jewellery intended to be taken by defendant No.1 from the plaintiff. In para 6 of the plaint it is stated that on 23.11.1993, the defendant No.1 gave a pay order of Rupees 2.25 crores to the plaintiff and took delivery of jewellery from the plaintiff on approval basis up to 31.12.1993. It is pleaded in para 6 that in this manner till 23.11.1993, the defendant No.1 made advance payment of Rs.3.75 crores to the plaintiff towards the jewellery. 6. Thereafter, in para 7 of the plaint, it is stated that on 30.12.1993 the defendant No.1 paid a further sum of Rs.20 lacs to the plaintiff. 7. In para 8 of the plaint it is explained that in the business of jewellery and precious stones the word "approval" means that one party takes jewellery from the other for a particular time as mutually fixed by the parties with an understanding that if price of the jewellery is not paid by the date fixed the jewellery is to be returned by the date fixed. 8. In para 9 it is stated that defendant No.1 took jewellery on approval basis with the cl