Allowed

Shija George Varkey v. Dhan Singh

Kerala HC13 Aug 2019RFA/140/2012

Case brief

AI extract

What is this about?

Appeal against a dismissal for insufficient evidence in a suit for recovery of goods. The High Court allowed the appeal, quashed the impugned decree, and remanded the suit de novo for a new hearing after granting both parties an opportunity to adduce further evidence regarding delivery.

What did the court decide?

The appeal is allowed, the decree and judgment of the trial court are set aside, and the suit is remanded for disposal de novo after both parties are granted an opportunity to adduce further evidence.

Shija George Varkey Vs Dhan Singh — Contract and Commercial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SATHISH NINAN

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TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941

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RFA.No.140 OF 2012

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AGAINST THE DECREE AND JUDGMENT DATED 28.7.11 IN OS 143/02 OF PRINCIPAL SUB JUDGE, KOTTAYAM

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APPELLANT/PLAINTIFF:

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SHIJA GEORGE VARKEY, AGED 46 YEARS, PROPRIETRESS, RUBBSTONE ENTERPRISES, K M C 8/455, K.K.ROAD, RESIDING AT CHERIYAVAZHAYIL HOUSE, KILIROOR NORTH, KOTTAYAM TALUK, KOTTAYAM DISTRICT, KERALA STATE.

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BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN

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RESPONDENT/DEFENDANT:

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DHAN SINGH, PROPRIETOR, PALI RUBBER COMPANY, E-58, SECTOR 40 NOIDA 201301, GAUTHAM BUDH NAGAR, RESIDING AT B 49, SECTOR 14- NOIDA 201301, GOUTHAM BUDH NAGAR, U.P.

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BY ADVS. SRI.HARIKUMAR G. NAIR SRI.B.DEEPAK

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-08-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RFA No.140 of 2012

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= = = = = = = = = = = = = = = = = = Dated this the 13^th day of August, 2019

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J U D G M E N T

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The unsuccessful plaintiff in a suit for recovery of money is the appellant. The claim is for the value of goods allegedly supplied by the plaintiff to the defendant.

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According to the plaintiff, 9000 kilograms of raw rubber was supplied by the plaintiff to the defendant. The rate agreed between the parties was

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`2,900/- per 100 kg. The consignments, according to the plaintiff, were taken delivery of by the defendant. The price of the goods have not been paid. The claim is for its value.

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The defendant denied having taken delivery of the goods. According to the defendant, the goods were damaged and hence they did not take delivery of the same. Therefore, they are not liable to make any payments to the plaintiff.

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The trial court found that the alleged

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RFA No.140 of 2012

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:- 2 :-

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delivery of goods was not evidenced by any document and accordingly dismissed the suit. Aggrieved, the plaintiff is in appeal.

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Heard learned counsel Sri.Sheji P. Abraham on behalf of the appellant-plaintiff and Sri.B.Deepak on behalf of the respondent-defendant.

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That the goods were ordered for by the defendant and had reached the godown of the transporter, is not in dispute. As per the terms of the contract between the parties, the defendant has to effect payment to the Bank on whose note/receipt the goods will be delivered by the transporting company. According to the plaintiff, the defendant informed her that she is not possessed of sufficient funds and requested for taking delivery of the goods without effecting payment and undertaking to pay the amounts within two weeks. The request was acceded to by the plaintiff.

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As rightly contended by the learned counsel for the respondent, when it is agreed to between the parties that the delivery of the goods shall be effected only on payment of the price into the Bank

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RFA No.140 of 2012

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:- 3 :-

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and on they issuing a note for delivery, the burden is heavy on the plaintiff to show that the goods were delivered without payment. That payment was not effected, is not in dispute. However, according to the defendant, the goods were not taken delivery of and hence no payment is due. Therefore, essentially the question that crops up for determination is as to whether the defendant took delivery of the goods.

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The plaintiff, to prove their case of delivery of goods, mainly relies on Exts.A14(a) and A15 documents and the oral evidence of PW2, who is the Managing Director of the Transporting company who claims to have transported the goods. Ext.A14(a) is the photostat copy of Ext.A14 fax message. By passage of time, the writings in Ext.A14 fax message has faded and can hardly be read. It is accordingly that Ext.A14(a) photostat copy has been produced and marked. In the said document, the receipt and delivery of disputed consignments is acknowledged. However, the said document is disputed by the defendant. Ext.A15 is

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RFA No.140 of 2012

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:- 4 :-

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claimed to be a communication from the transporting company confirming delivery of the goods to the consignee-defendant. Ext.A15 is only a photostat copy.

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The trial court found that the evidence on record is not sufficient to find that the goods were taken delivery of by the defendant. Exts.A14, A14(a) and A15, no doubt, throw some light on the transaction, provided they are found to be genuine and is supported by adequate materials. The plaintiff as PW1 has claimed that, supporting documents evidencing the delivery of goods are available either with him or with the transporting company. Though the defendant has claimed that delivery of goods were not taken since they were damaged, no document to show that plaintiff was informed regarding the same, is produced. In short, the evidence on record is insufficient for a proper disposal of the suit. I am of the opinion that further opportunity could be granted to both sides to adduce evidence. The judgment and decree of the trial court, accordingly, needs to be interfered

RFA No.140 of 2012

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with.

In the result, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal de novo after affording opportunity to both sides to adduce further evidence. Parties to appear before the trial court on 04.09.2019.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Shija George Varkey v. Dhan Singh

Case brief

What is this about?

What did the court decide?

Shija George Varkey v. Dhan Singh

Case brief

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What did the court decide?

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