Oral:

C.M.Nos.10235/2017 (for condonation of delay in filing) & 10236/2017 (for condonation of delay in re-filing)

1. For the reasons stated in the applications, delay of 6 days in filing and 67 days in re-filing the appeal is condoned.

C.M.s stand disposed of.

RFA No.290/2017

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 16.8.2016 by which trial court has dismissed the suit for recovery of Rs.5,77,000/- along with interest filed by the appellant/plaintiff.

3. The appellant/plaintiff pleaded that it was in the business of manufacturing and fabrication of iron and steel articles. It was pleaded that the respondent/defendant placed various orders upon the appellant/plaintiff from 6.1.2012 to 10.3.2012. Articles were pleaded to have been delivered by the appellant/plaintiff to the respondent/defendant against various invoices. Since the amounts due under invoices were not paid, subject suit came to be filed.

4. Respondent/Defendant contested the suit by filing written statement. It was completely denied by the respondent/defendant that they had anything to do with the appellant/plaintiff or that the respondent/defendant had ever purchased any article from the appellant/plaintiff. The suit was pleaded to be completely false and bogus. It was specifically pleaded by the respondent/defendant that the respondent/defendant never received any supply from the appellant/plaintiff, moreso as per the invoices claimed by the appellant/plaintiff. It was pleaded in the written statement that the story put up by the appellant/plaintiff is outrightly false and frivolous and the suit was therefore prayed to be dismissed.

5. After pleadings were complete, issues were framed. Appellant/plaintiff lead evidence but respondent/defendant did not lead any evidence. These aspects are recorded in paras 4 to 6 of the impugned judgment and these paras read as under:-

'4. On the basis of pleadings of the parties, following issues were framed in this case on 16.02.2013:-

i. Whether the suit has not been instituted and verified by a competent person? OPD

ii. Whether the plaintiff has not come to the court with clean hands and defendant, on account of acts of plaintiff, has suffered substantial loss? OPD

iii. Whether there was no privity of contract between the parties as alleged? OPD

iv. Whether the plaintiff is entitled to money decree, if so to what amount?

v. Whether the plaintiff is entitled to any interest? If so, at what rate and for which period? OPP

vi. Relief

5. From the side of plaintiff, Sh. Arun Jain has examined himself as PW-1 in support of this case and then remaining evidence of plaintiff was closed.

6. No witness was examined on behalf of defendant despite sufficient opportunities given and hence evidence of defendant side was closed.'

6. I have asked the counsel for the appellant/plaintiff to show me a single document, whether the same be of the invoices or of the transportation receipt or any other document, which shows that the respondent/defendant has received the goods under the signatures of the respondent/defendant or an employee of the respondent/defendant. Admittedly in the invoices or the transportation receipts or ledger maintained by the appellant/plaintiff there is not even a single signature of any one from the side of the respondent/defendant that the respondent/defendant has received the subject material/articles from the appellant/plaintiff. The ledger entry proved as Ex.PW1/1 cannot help the appellant/plaintiff because ledger entry has to be proved by corresponding documents in support of the ledger entries in view of Section 34 of the Indian Evidence Act, 1872.

7. Counsel for the appellant/plaintiff states that appellant/plaintiff sought to lead evidence of the transporter who transported goods to the respondent/defendant, but the office of the transporter was found closed. The

refore in my opinion no purpose will be served in setting aside the impugned judgment and allowing the appellant/plaintiff to lead additional evidence. It is very much possible that transporter may not have delivered goods to the respondent/defendant and that is why the transporter has fled from the known address as mentioned in the transportation receipts. 8. In view of the aforesaid discussion, I do not find any merit in the appeal. Dismissed.