In this appeal arising from a suit for recovery of money due for unpaid goods, the High Court dismissed the appeal by the defendant. The court held that the suit was within limitation, the appellant failed to show good cause for non-appearance, and the ex-parte order was valid.
The appeal was dismissed with no merit found.
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.
% 9th March, 2018 PHOENIX UDYOG PVT. LTD. ..... Appellant Through: Mr. Pankaj Bhagat Mr. Sadre Alam and Mr. Amitabh Bachchan, Advocates.
versus
MAXPURE WATER SYSTEM PVT. LTD. ..... Respondent
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 8967/2018 (Exemption)
Exemption allowed subject to just exceptions.
CM stands disposed of.
RFA No. 237/2018
Code of Civil Procedure, 1908 (CPC) by the defendant in the suit impugning the ex-parte judgment and decree of the trial court dated 22.12.2017 by which the trial court has decreed the suit filed by the respondent/plaintiff for an amount of Rs.10,71,686/- along with
Page 1 of 6
RFA No. 237/2018
interest at 9% per annum being the value of the unpaid goods/water purifiers sold by the respondent/plaintiff to the appellant/defendant.
the respondent/plaintiff for recovery of balance due of Rs.10,71,686/pleading that there was a relationship of buyer and seller between the parties whereby the respondent/plaintiff supplied to the appellant/defendant water purifiers, its parts and accessories on credit from time to time by raising invoices. It was pleaded in the plaint that goods were lastly supplied of a sum of Rs.3,27,548/- on 1.3.2011 and with respect to which last payment was received on 13.3.2011. The subject suit was filed on the last date of limitation on 13.3.2014.
Page 2 of 6
RFA No. 237/2018
and contested the suit denying the territorial jurisdiction of this Court as also the suit being barred by time. Appellant/defendant has also pleaded that there was no liability of the appellant/defendant who had returned the goods which were sent by the respondent/plaintiff without placing of any orders. Therefore, by pleading that appellant/defendant had no liability the suit was prayed to be dismissed.
following issues:-
evidence of Sh. Alpesh Gokhru as PW-1 who has proved various documents Ex.PW1/1 to Ex.PW1/5. The invoices were proved as Ex.PW1/3 (colly) and the statement of account was proved as Ex.PW1/4. Appellant/defendant failed to appear from 25.10.2017 which was a date fixed for cross-examination of PW-1. Appellant/defendant was therefore proceeded ex-parte and right of the
Page 3 of 6
RFA No. 237/2018
appellant/defendant to cross-examine PW-1 was closed by treating it as nil. The impugned judgment has been passed thereafter by decreeing the suit. I may note that once a defendant in a suit is exparte , on the issues which have been framed really since there is no contest on behalf of the defendant by leading evidence, there would be no formal issues in the suit. This is being stated because whatever are the defences of the appellant/defendant in the written statement cannot be looked into because there is no evidence which is led by the appellant/defendant with the fact that even the witness PW-1 of the respondent/plaintiff has not been cross-examined. Therefore, there was no reason for the trial court not to believe the unrebutted testimony of the PW-1 for decreeing the subject suit in terms of the impugned judgment.
Page 4 of 6
RFA No. 237/2018
the suit was barred by time. Even if the payment made is of a specific amount of the last invoice yet this payment will be taken towards the balance due at the foot of the document which has been proved as Ex. PW1/4 and therefore the suit was not barred by limitation.
Page 5 of 6
RFA No. 237/2018
and (h) read as under:-
MARCH 09, 2018/ ib
VALMIKI J. MEHTA, J
Page 6 of 6
RFA No. 237/2018
3 issues framed by the court
Whether the suit is barred by limitation or lacks territorial jurisdiction.
Whether the ex-parte proceedings were correctly ordered due to the appellant's non-appearance.
Whether the appeal filed under Section 96 CPC should be allowed or dismissed.
2 provisions across 1 enactments
Phoenix Udyog Pvt. Ltd.
Maxpure Water System Pvt. Ltd.
Valmiki J. Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
