w w w . L a w y e r S e r v i c e s . i n

M/s. Plywood Emporium, Jaipur v/s M/s. Wood Crafts Products Limited, Jaipur through Ex-Branch Manager S. Maheshwari

Company & Directors' Information:- P S PLYWOOD PRODUCTS PVT LTD [Converted to LLP and Dissolved] CIN = U20291WB1986PTC217119

Company & Directors' Information:- JAIPUR CRAFTS PRIVATE LIMITED [Active] CIN = U36101DL2009PTC187374

Company & Directors' Information:- M M EMPORIUM PRIVATE LIMITED [Active] CIN = U17111WB2000PTC092062

Company & Directors' Information:- M P PLYWOOD LIMITED [Under Liquidation] CIN = U20211DL1981PLC011451

Company & Directors' Information:- S V S WOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U20211PB1998PTC021426

Company & Directors' Information:- D K PLYWOOD PRIVATE LIMITED [Active] CIN = U20211RJ1986PTC003702

Company & Directors' Information:- WOOD INDIA PVT LTD [Active] CIN = U20211AS1980PTC001819

Company & Directors' Information:- R J WOOD AND CO PVT LTD [Active] CIN = U20219DL1931PTC000245

Company & Directors' Information:- D D PLYWOOD PVT LTD [Active] CIN = U36101DL2001PTC110376

Company & Directors' Information:- B M PLYWOOD PRIVATE LIMITED [Active] CIN = U20211HR1995PTC032603

Company & Directors' Information:- G L PLYWOOD PVT LTD [Active] CIN = U20299WB2006PTC107811

Company & Directors' Information:- M R EMPORIUM PVT LTD [Active] CIN = U17219WB1988PTC044403

Company & Directors' Information:- S S PLYWOOD PRIVATE LIMITED [Strike Off] CIN = U51101DL2009PTC191270

Company & Directors' Information:- J S CRAFTS PRIVATE LIMITED [Strike Off] CIN = U18109DL2010PTC211837

Company & Directors' Information:- MAHESHWARI & CO PRIVATE LIMITED [Active] CIN = U74999WB1950PTC019241

Company & Directors' Information:- Q-MANAGER PRODUCTS PRIVATE LIMITED [Active] CIN = U74300DL2006PTC154567

Company & Directors' Information:- K K N WOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U20290HR2010PTC040242

Company & Directors' Information:- WOOD (INDIA) PVT LTD [Under Process of Striking Off] CIN = U20221OR1983PTC001171

Company & Directors' Information:- S. R. CRAFTS PRIVATE LIMITED [Strike Off] CIN = U17210DL1986PTC023259

Company & Directors' Information:- J M B PLYWOOD P LTD. [Strike Off] CIN = U00271BR1990PTC004238

Company & Directors' Information:- CRAFTS PVT LTD [Strike Off] CIN = U28920WB1959PTC024119

Company & Directors' Information:- D S PLYWOOD PVT LTD [Strike Off] CIN = U02001WB1978PTC031750

Company & Directors' Information:- G. M. PLYWOOD PRIVATE LIMITED [Active] CIN = U20219PB2009PTC032597

Company & Directors' Information:- N R PLYWOOD PRIVATE LIMITED [Active] CIN = U20219PB2014PTC039003

Company & Directors' Information:- S S CRAFTS PRIVATE LIMITED [Active] CIN = U20239DL2006PTC146912

Company & Directors' Information:- H AND F CRAFTS PRIVATE LIMITED [Active] CIN = U51909DL2005PTC138284

Company & Directors' Information:- N D PLYWOOD PRIVATE LIMITED [Strike Off] CIN = U20211PB1998PTC021756

Company & Directors' Information:- Y A CRAFTS PRIVATE LIMITED [Active] CIN = U28999UP2020PTC139532

Company & Directors' Information:- WOOD PRODUCTS PVT LTD [Strike Off] CIN = U20221WB1956PTC023054

    Civil First Appeal No. 59 of 1997

    Decided On, 08 February 2017

    At, High Court of Rajasthan Jaipur Bench


    For the Appellant: Reashm Bhargav, Advocate. For the Respondent: None.

Judgment Text

This appeal has been preferred by the defendant appellant against the judgment and decree dated 06.08.1996 passed by learned Add. District & Sessions Judge No.3, Jaipur City, Jaipur in civil suit No.88/91 whereby the learned trial Court decreed the suit filed by the plaintiff respondent for a sum of Rs.1,20,409.16 along with interest amount @ 18% per annum from the date of filing of the suit till realization of the amount.

2. Briefly stating the relevant facts are that plaintiff filed a suit stating that the defendant firm was supplied some wooden articles by the plaintiff company in regular course of business through challans Ex.1 to Ex.8. Bills of the cost of goods were also issued, which are Ex.9 to Ex.21. Debit notes Ex.22 and Ex.23 were obtained from the defendant. Balance confirmation letter Ex.24 was also signed by the partner of the defendant firm but the amount for the goods purchased was not paid. Hence, the suit was filed for a sum of Rs.1,15,224.08 claiming interest @ 18% per annum thereupon.

3. Defendant has denied any such delivery of items and also denied to have received above mentioned documents stated to have been issued by the plaintiff. Confirmation letter Ex.24 was also specifically denied. It has also been alleged that the legal status of the plaintiff has not been specifically stated as to whether it is a company or partnership firm. This plea has also been taken that the Manager of plaintiff firm S. Maheshwari is not an authorised person to file suit on behalf of the plaintiff.

4. On the basis of the pleadings, following issues were framed by learned trial Court :-

"1. Whether Shri S. Maheshwari, Branch Manager is authorised to file the suit on behalf of the plaintiff firm?

2. Whether the plaintiff is entitled to receive the amount of Rs.1,15,224.08 from the defendant along with interest amount of Rs.5185.08 ?

3. What will be the rate of interest ?

4. Whether plaintiff is not a registered firm and hence, the suit is not maintainable.

5. Whether the suit not being based on any written contract, enactment or guarantee is not maintainable.

6. Whether defendant did not place any order for the goods supplied, hence, the suit is liable to be rejected.

7. Reliefs."

5. After recording evidence and affording opportunity of hearing, learned trial Court decided the suit vide judgment impugned dated 6.8.1996 in the manner stated above.

6. None has appeared on behalf of the respondent to contest this appeal.

7. Learned counsel for the appellant has contended that PW-1 Subhash Maheshwari, who is stated to be Manager of the plaintiff company, has made certain admissions during his cross examination on the basis of which, it is obvious that he has not been authorised to file this suit, hence, the suit itself is not maintainable. Further, he has contended that the plaintiff has failed to prove that any order was given to the plaintiff to supply the goods to the defendant, nor it has been proved that the goods were delivered to some authorised person of the defendant. The signature allegedly made on the balance confirmation letter Ex.24 is not proved to have been made by the partner of the defendant firm. Despite these facts, learned trial Court has decreed the suit in complete ignorance of the evidence available on record. Hence, the appeal is liable to be allowed while setting aside the judgment and decree impugned.

8. Learned counsel for the appellant has relied upon the judgment in case of M/s Nibro Limited v. National Insurance Co.Ltd., reported in AIR 1991 Delhi p.25 wherein it has been laid down that suit can be filed by a Director, who is specifically empowered to do so by the Board of Directors by passing a resolution in this regard. Similarly, in case of Food Corporation of India v. Sardarni Baldev Kaur & Ors., reported in AIR 1981 Punjab & Haryana p.113, it has been held that the District Manager, Food Corporation of India is not competent to conduct the suit on behalf of the Corporation. Only Secretary or Director or any other Principal Officer of the Corporation is authorised to do so.

9. In the light of the arguments advanced by learned counsel for the appellant, statement of PW-1 Subhash Maheshwari was examined. In his examination-in-chief, he has stated that he has filed the suit on behalf of the plaintiff company and he has knowledge of the complete facts relating to the suit. But in his cross-examination, he has admitted that no resolution was passed by the company to file the suit. This is contrary to the above said principle laid down in case of M/s Nibro Ltd. (supra). He has further admitted that he has not filed the power of attorney issued by the Company in his favour. He has further admitted that no document has been filed by him in relation to the authority issued by the Company in his favour. Thus, it is not proved as to how is he empowered to file the suit. Though he has stated that he is the Principal Officer of the Jaipur Branch of his Company and learned trial Court has considered him to be entitled to file suit on behalf of the Company being Principal Officer of Jaipur Branch, but no such document appointing him as the Principal Officer of the Jaipur Branch is available on record. So the inference drawn by learned trial Court appears to be without any evidence. Further, in the light of the admissions made by PW-1, it does not appear that he has been authorised on behalf of the Company to file the suit. Thus, the very basis of filing suit does not stand proved.

10. So far as Issues No.2, 3 and 6 are concerned, plaintiff company has adduced its evidence through PW-1 Subhash Maheshwari and PW-2 Shrawan Kumar, who is working on the post of Godown Keeper in the plaintiff Company. PW-1 stated that Ex.1 to Ex.8 are the challans through which the goods were supplied and Ex.9 to Ex.21 are the bills issued in this respect. Debit Notes are Ex.22 and 23 and Balance Confirmation Letter is Ex.24 on which 'c' to 'd' is the signature of Surendra Kumar Shah, partner of the defendant firm along with seal of the defendant firm affixed on it. But PW-1 has admitted in his cross-examination that there was no written order in regard to supply of the goods and the goods were delivered only on the telephonic orders. It is a matter of common observance that when regular business transaction is maintained between the parties, goods are supplied even on telephonic order, so, this fact cannot be considered adverse to the case of the plaintiff company. But PW-1 has further stated that goods were delivered by Godown Keeper Shrawan Kumar. He did no know where Shrawan Kumar unloaded the goods. On perusal of the statement of PW-2 Shrawan Kumar, it appears that the goods were sent through hand-driven trolly or 'theli'. He has failed to tell the name of 'theli' or trolly driver through whom the goods were sent. He has also failed to tell that whose signatures are there on challans Ex.1 to Ex.8. In light of statements of these two witnesses, it is not proved that the goods were delivered to the person authorised to receive them on behalf of defendant firm. When specific plea was taken by the defendant in his written statement that he did not place any order for supplying the goods and the goods were unloaded by the plaintiff firm on its own at an open place before the defendant firm, it was incumbent upon the plaintiff to prove that the goods were properly handed over to some person authorised on behalf of the defendant firm to receive them.

11. Contrary to the plaintiff evidence, DW-1 Surendra Kumar Shah, partner of the defendant firm and DW-2 Brij Mohan, employee of the said firm has categorically denied to have received any goods delivered by the plaintiff company. They have also denied that the signatures on challans Ex.1 to Ex.8 have been made by any person authorised by the defendant firm. Learned trial Court has ignored this aspect while dealing with Issue No.2 and 3. Trial Court has based its conclusion on the basis of the Balance Confirmation Letter Ex.24, which was allegedly signed by the partner of the defendant firm Surendra Shah, on comparison made between the signatures appended on Ex.24 and the admitted signatures of Surendra Shah on Ex.26. Such inference was drawn by learned trial Court only at the time of dictating judgment. Thus, the defendant firm was not afforded any opportunity to explain about the similarity or dissimilarity between the two signatures. In my view, in face of specific denial about the signatures on all the documents tendered by the plaintiff firm in evidence, more particularly on Balance Confirmation Letter Ex.24, it would have been appropriate to obtain the opinion of the hand-writing expert on this controversy.

12. So far as the stamp affixed on Ex.24 is concerned, DW-1 has stated in his cross-examination that the Manager of the plaintiff company used to come to his shop frequently, he does not know when this seal was affixed on Ex.24. Thus, the affixing of seal on Ex.24 cannot be considered as a conclusive proof that signatures on Ex.24 were made by Surendra Shah himself.

13. In the discussions mentioned herein above, this Court is of the firm opinion that the plaintiff has utterly failed to prove that the goods were delivered to the defendant firm on its order, even if telephonic, and also that the goods were handed over to some authorised person of the defendant firm. Thus, the question of realizing the price of the goods along with the interest amount from the defendant company does not arise. The issues decided by trial Court in this regard in favour of the plaintiff respondent suffer from legal infirmity, as not being based on sufficient evidence.

14. So far as Issue No.4 is concerned, no evidence has been produced on behalf of the defendant regarding its legal status as to whether it is a registered company or a partnership firm. PW-1 has stated it to be a public limited company but no documents to this effect have been produced in the evidence. Learned trial Court has decided this issue in favour of the plaintiff company saying that the defendant could have asked to produce the relevant documents by the plaintiff company in regard to its legal status. This reason does not stand to logic as it was primarily the duty of the plaintiff company to show its legal status and also the authority to file the suit.

15. Issue No.5 has been decided by the learned trial Court in favour of plaintiff on the basis of the Balance Confirmation Letter Ex.24 but the said Balance Confirmation Letter has not been found proved to have been signed by the partner of defendant firm Surendra Shah as per

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the discussions made above, so this issue could have not been proved in favour of the plaintiff. It is also important to note that the suit was filed by the plaintiff company under the provisions of Order 37 CPC. It appears that in view of this fact, this issue was framed on the basis of the terminology used in Clause (b) of sub-rule (2) of Rule 1Order 37CPC. It appears that later on this aspect of the matter has been ignored and the suit has been decided as a regular suit though the permission to defend the suit under the provisions of sub-rule (5) of Rule 3Order 37CPC was rejected vide order dated 21.10.1993. However, this issue ought not to have been decided in favour of plaintiff respondent as the Balance Confirmation Letter Ex.24 was not found to have been proved by the partner of the defendant firm. 16. On the basis of the discussions made herein above, the judgment and decree impugned dated 06.08.1996 cannot be considered to have been passed on the proper appreciation of evidence and is thus found liable to be quashed and set aside. Accordingly, while quashing and setting aside the judgment and decree dated 06.08.1996, the appeal is allowed. Appeal allowed.