In Regular First Appeals, the High Court of Delhi dismissed the appellant's challenge to the trial court's decree. The court upheld the recovery of the suit amount and rejected the counter-claim, finding the appellant failed to prove defective work and the appellant's client confirmed no rejection due to defects.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
+ RFA Nos.1007/2017 & 1014/2017
Reserved on: 1st December, 2017 % Pronounced on: 6th December, 2017
1. RFA No.1007/2017
M/S. KCL LTD. ..... Appellant Through: Mr. Arjun Garg, Advocate with Mr. Munish Yadav, Advocate and Mr. Mohit Chandra, Advocate. Versus THOMSON PRESS INDIA LTD. ..... Respondent 2. RFA No.1014/2017 M/S. KCL LTD. ..... Appellant Through: Mr. Arjun Garg, Advocate with Mr. Munish Yadav, Advocate and Mr. Mohit Chandra, Advocate. Versus THOMSON PRESS INDIA LTD. ..... Respondent
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
RFA No.1007/2017 and C.M.Nos.43567/2017 & 43568/2017 (exemption)
of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit
RFA Nos.1007/2017 & 1014/2017 Page 1 of 16
impugning the judgment of the Trial Court dated 31.7.2017; by which the trial court has decreed the suit for recovery filed by the respondent/plaintiff for an amount of Rs.19,81,927/- along with interest at 12% per annum simple. The counter-claim filed by the appellant/defendant was dismissed and which is the subject matter of challenge in the connected appeal being RFA No.1014/2017.
which amount a counter-claim was filed against the
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respondent/plaintiff by the appellant/defendant, and against dismissal of which the connected RFA No. 1014/2017 is filed.
following issues:-
“ ISSUES :
1.Whether the plaint has been signed, verified and instituted by duly authorized and competent person? OPP
ISSUE NO. 8 .
Whether the material supplied by the defendant had not been rejected for bad quality by their client M/s. Moser Baer India Ltd. But on account of change and design of inlay cards and folders and defendant was compensated for the same? OPP”
before this Court were issue nos.4 and 8. These issues pertain to the
entitlement of the respondent/plaintiff to the suit amount or as to
whether the respondent/plaintiff is not entitled to the suit amount but
the respondent/plaintiff was guilty of defective work and also that on
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account of defective work the printed material was rejected by the client of the appellant/defendant, namely M/s Moser Baer India Ltd.
contract between the parties stood concluded in terms of the communication dated 31.1.2001/Ex.PW1/4 sent by the
respondent/plaintiff to the appellant/defendant and terms of which letter were accepted by the appellant/defendant in terms of its response dated 2.2.2001/Ex.PW1/5. In the present case really the onus of proof was upon the appellant/defendant as to whether the suit was to be dismissed on account of defective printing work being done by the respondent/plaintiff and some of the defective printing work being that which was allegedly rejected by M/s Moser Baer India Ltd. On this main issue as to whether the work done was defective, the trial court has held that the appellant/defendant failed to prove that the work was defective. For reaching this conclusion trial court notes that till the respondent/plaintiff wrote its letter dated 29.1.2002/Ex.PW1/8 no complaints were ever made by the appellant/defendant with respect to any defective work. No such letter or communication was placed on record and proved by the appellant/defendant written before 29.1.2002
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with respect to the defective printing work against the contract and which printing work commenced in February, 2001 i.e for around 11 months there was never ever a complaint in writing by the appellant/defendant to the respondent/plaintiff of any defective work. It was for the first time only on 29.1.2002, that the appellant/defendant
claimed that there were defects in the printing work. Respondent/plaintiff immediately in response wrote its letter dated 30.1.2002/Ex.PW1/10 that there was no defective work. I may note that the respondent/plaintiff has proved the different invoices which were collectively exhibited as Ex.PW1/16 and Ex.PW1/17 and the delivery challans as Ex.PW1/18 and Ex.PW1/19. Even in the communication dated 29.1.2002/Ex.PW1/8 the appellant/defendant only generally and vaguely stated that there is a quality issue on 30 lacs inlay sets and reconciliation of paper and that because of this reason payment was stopped to the respondent/plaintiff. This letter however did not specify as to what was the quality issue/defect in the printing. Trial court has noted that as per the agreed terms contained in the letters Ex.PW1/4 and Ex.PW1/5 of the parties, the appellant/defendant was duty bound within four days with the receipt
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of the material to point out defects and where after no subsequent complaint would be considered. This term was on the overleaf of the letter Ex.PW1/4 dated 31.1.2001.
contended that the term on the over leaf of Ex.PW1/4 cannot be looked into because there was no such term, however before this Court for some unexplained reason the appellant/defendant has only filed a typed copy of front portion of Ex.PW1/4 dated 31.1.2001. Appellant/defendant has failed to file the front and back portion of Ex.PW1/4 and therefore there is no reason for this Court to disbelieve the findings of the trial court that on the overleaf of Ex.PW1/4 it is clearly specified that there was a period of four days within which the appellant/defendant was entitled to raise in the complaint for any alleged defective work. This finding of the trial court of four days term existing in Ex.PW1/4 is referred to in para 40 of the impugned judgment at internal page 29 of the judgment.
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provision once no objection is raised within a reasonable period of time with respect to alleged defects in the goods, then, the buyer cannot thereafter object to any defect in the goods. Trial court has in this regard referred to this provision of the Sales of Goods Act in para
55 of the impugned judgment and this para 55 reads as under:-
“55. In case of sales of goods, as per provisions of Sales of Goods Act 1930, under the provisions of section 41 and 42, it is the responsibility of buyer to examine the goods before accepting the delivery. Section 41 clearly mandates that where goods have been delivered to buyer which have not been previously examined, buyer will not deem to have accepted the same unless he has reasonable opportunity of examining the goods to ascertain whether goods are in conformity with contract. However, Section 42 mandates that buyer will deem to have accepted the goods when he either actually intimates to the seller regarding acceptance of goods or where he does any act in relation to those goods which is in consistent to the ownership of seller or when after lapse of a reasonable time buyers retains the goods without intimation of rejection of the same. In the present case also, when there were already expressed conditions of sale for inspection of the goods, still there being no communication from defendant for period of about two months since the lastly accepting of goods of printed inlay cards and folders to the effect that there is any defect in the printing work, in view of the conditions of sale and the provisions of section 42 as discussed above, defendant company will deem to have accepted the material without there being any defects.”
paras of the impugned judgment of the trial court show that the trial court was justified in arriving at a finding that no objection was raised with respect to invoices upto 31.10.2001. Once never any objection was raised with respect to defective work thus this lack of challenge to
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defective work became final as against the appellant/defendant by virtue of Section 42 of the Sales of Goods Act.
10.(i) Learned counsel for the appellant/defendant argued that respondent/plaintiff by virtue of letter Ex.PW1/11 dated 16.4.2002 accepted that there was defective work of invoice nos.8477 and 8478, both dated 31.10.2001 for Rs.2.49 lacs and Rs.2.53 lacs respectively, and hence it is argued that respondent/plaintiff was liable with respect to the defective work in the invoices dated 31.10.2001.
(ii) In my opinion this argument urged on behalf of the appellant/defendant by placing reliance upon letter dated 16.4.2002 of the respondent/plaintiff qua two invoices dated 31.10.2001 is a misconceived argument. In this regard the trial court has arrived at a finding of fact that these invoices pertain to printing work done by the respondent/plaintiff for the appellant/defendant and that the appellant/defendant itself had taken this printing work for being done from M/s Moser Baer India Ltd. After the suit was originally filed and the appellant/defendant took up a stand in the written statement that the work which was defective under the invoices dated 31.10.2001 pertain to its client M/s Moser Baer India Ltd the respondent/plaintiff
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communicated with M/s Moser Baer India Ltd and this company confirmed that it had not rejected the printed material received from the respondent/plaintiff through the appellant/defendant but M/s Moser Baer India Ltd itself had asked during the printing process for changing of its design and had consequently compensated the appellant/defendant in this regard. The letter given by M/s Moser Baer India Ltd dated 19.8.2006 was proved by the respondent/plaintiff as Ex.PW1/20. On account of this response of M/s Moser Baer India Ltd, the respondent/plaintiff amended its plaint and added paras 17A and 17B and which aspects were proved by the respondent/plaintiff during the course of its evidence and such aspects are discussed in detail by the trial court in para 63 of its impugned judgment and which para 63 reads as under:-
“63. This brings us to consider the issue no. 8. I have already discussed the evidence of PW 1 and PW 2. It is already noted above that defendant company has failed to lead any evidence to substantiate that material supplied by the defendant to its clients M/s Moser Baer India Ltd. was rejected by its clients on account of any defects in the printing of Inlay Cards and folders. Plaintiff, however, by way of amendment in the plaint brought out certain facts as mentioned in para no. 17 A and 17 B of the plaint. PW 1 has also testified in his additional affidavit of examination in chief (para no. 3 & 4) in this regard, that plaintiff company has informed to M/s Moser Baer India Ltd. about the outstanding amount Rs.17,85,842/- payable by defendant company as well as filing of the suit for recovery. PW 1 says that M/s Moser Baer India Ltd. in response to clarification sought by the plaintiff has stated that no material supplied against purchase orders had been rejected by it due to bad quality or otherwise. Such letter of M/s Moser Baer India Ltd.
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Dated 19.08.2006 is Ex.PW1/20. Nothing came in the cross-examination of PW1 to disbelieve his evidence or to negate the fact regarding sending of letter dated 19.08.2006 Ex.PW1/20 by M/s Moser Baer India Ltd. PW 1 was simply suggested that he was not present when such letter Ex.PW1/20 was signed. Thus, reading the evidence of PW 1 alongwith this document Ex.PW1/20, it is established that the client of defendant company itself made it clear that printed material of plaintiff was never rejected by M/s Moser Baer India Ltd. on account of defects in the printing. Nothing has come even in the evidence of DW 1 in this regard, thus, for the reason stated above I find that plaintiff company has been able to establish both these issue no. 4 & 8, by preponderance of probabilities. Issues no. 4 & 8 are accordingly decided in favour of the plaintiff and against the defendant.” (underlining added)
(iii) It is therefore clear that there was no defective work which was done by the respondent/plaintiff even with respect to two invoices dated 31.10.2001 bearing nos.8477 and 8478.
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respondent/plaintiff during the course of its evidence and if the appellant/defendant doubted that M/s Moser Baer India Ltd had not written the letter Ex.PW1/20 then there was no reason why the appellant/defendant would not have summoned a witness from M/s Moser Baer India Ltd to prove that the letter Ex.PW1/20 was not written by M/s Moser Baer India Ltd to the respondent/plaintiff. Obviously the appellant/defendant did not summon during the course of its evidence any witness from M/s Moser Baer India Ltd because there was no doubt as to the authenticity and the contents of Ex.PW1/20. Accordingly, I reject the argument urged on behalf of the appellant/defendant that the contents of Ex.PW1/20 are not proved.
appellant/defendant for dismissing of the suit of the respondent/plaintiff and for allowing of the counter-claim of the appellant/defendant was in two parts. One part was with respect to the goods supplied under invoices prior to 31.10.2001 and with respect to which no complaint ever was raised by the appellant/defendant at any point of time in writing that printing was defective and therefore the trial court was justified in holding that the appellant/defendant had
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failed to discharge its onus that the printing work was defective. So far as the second part of the allegations of the printing work being defective under two invoices dated 31.10.2001 is concerned, this was proved to be completely baseless in view of the letter dated 19.8.2006 Ex.PW1/20 proved on behalf of the respondent/plaintiff and which showed that M/s Moser Baer India Ltd never rejected the printing material on the ground that it was defective and on the contrary M/s Moser Baer India Ltd stated that it had itself asked for change of printing and for such change of printing in fact the appellant/defendant was suitably compensated. Clearly therefore the case of the appellant/defendant of defective printing was false and was rightly disbelieved by the trial court.
“38. As per plaintiff's case defendants company through its Director Sh. Sanjeev Khemka, had approached plaintiff company in Jan. 2001 for printing and processing of Inlay Cards and Folders. It is also stated in the plaint that Director of Defendant company met with principal officers of plaintiff company to discuss terms and conditions for such job of plaintiff. After such meetings plaintiff company sent communication dt 31.01.2001, signed by its regional sales
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manager wherein specifications were given as well as other terms as agreed between the parties in the meeting held in Jan 2001 were also printed over leaf of that letter / quotation which is proved in the evidence of PW¬1 as Ex.PW1/4. Defendant company in pleadings has denied agreeing for any such terms and conditions, more specifically the terms as enumerated in para 5 of the plaint and discussed above. As such the onus of proving the issue under consideration was on defendant.
Ex.PW1/5, Reading of PW-1 /4 and PW1/5 make it clear that defendant company accepted the terms and conditions as given in the quotations (Overleaf) by its response dt 02.02.2001 Ex.PW1/5. Accordingly, I find that plaintiff company has been able to establish the specifications as mentioned in Ex.PW1/4 along with conditions of sale and defendant company has failed to prove that such specifications and conditions of sale were not accepted by it. Issue accordingly decided against the defendant and in favour of plaintiff.
xxxxx xxxxx xxxxx
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defendants. In this regard, it is important to note that as per the conditions of sale, defendant company was given opportunity to inspect and make comparison between machine proof and completed job. It was also agreed under the conditions of sale that once delivery of printed material accepted, no subsequent complaint can be considered to be genuine / bonafide made beyond period of 4 days from the date of receipt of job / printed goods. In this case, printed material of inlay cards and folders was lastly delivered on 31.10.2001, but there is no evidence on the record to show that immediately thereafter defendant company raised the issue of defects in the inlay cards / folders or issue that its client M/s. Moser Baer did not accept the printed goods on the ground of quality of printing. Such issue as noted above for the first time was raised in the mail / communication Ex.PW1/9 on 29.01.2002. That too without any much details as to what are the defects in the printing. Merely alleging the printing is defective, was not sufficient for defendant to avoid the liability.
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prior to 29.01.2001. Such evidence of DW-1 coupled with nothing coming in cross examination of PW-1 & 2 to establish any defect in the printing of inlay cards sets. Moreover, no witness has been examined from M/s. Moser Baer to establish the fact as alleged by defendant in the WS that such 30 lacs inlay card sets were rejected by defendant's client Moser Baer. Thus, from the above discussion of law and the evidence I find that defendant company had failed to establish that the printed inlay cards and folders as sent by plaintiff company were defective in any manner.” (underlining added)
the appeal. This appeal is therefore dismissed, leaving the parties to
bear their own costs.
RFA No.1014/2017 and C.M. Nos.43717/2017 (stay) & 43718/2017 (exemption)
appeal is also dismissed, and it is held that the trial court rightly dismissed the counter-claim filed by the appellant/defendant. This
appeal is accordingly dismissed, leaving the parties to bear their own costs.
DECEMBER 06, 2017 Ne
VALMIKI J. MEHTA, J
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2 issues framed by the court
Whether the appellant failed to discharge the onus of proving that the printing work was defective within the stipulated period?
,
Colour shows how this judgement treated each authority
NoneReferred
Not specified
2 provisions across 2 enactments
M/s. KCL Ltd.
Thomson Press India Ltd.
Valmikiji Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
