Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.151/2000
st
% 21 January, 2011
M/S USHAK KAAL ADVERTISING (P) LTD. ...... Appellant
Through: Mr. Sunil Bagai, Advocate.
VERSUS
SHRI K.L. SHROFF AND ANOTHER ...... Respondent
Through: Mr. J.S.Bakshi, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this First Appeal under Section 96 of
the Code of Civil Procedure, 1908 is to the impugned judgment and decree
dated 19.1.2000 whereby the suit of respondent/plaintiff for recovery has
been decreed along with interest on account of non-payment by the
appellant of the bills of the respondent/plaintiff pertaining to printing jobs
which were done by the respondent/plaintiff for the appellant/defendant.
2. Before this Court, learned counsel for the appellant argued that
the appellant was not responsible for any delay in payment and the delay
RFA No.151/2000 Page 1 of 3
caused in making the payment was on account of the respondent/plaintiff not
returning the positives. He has argued that since the respondent/plaintiff
was thus guilty of breach of contract he was not entitled to any interest.
3. This aspect of the matter has been dealt with by the Trial court in
the following words:
“It is argued by the Ld.Counsel for the defendant that the
plaintiff did not return the positives worth Rs.7,000/- to the
defendant as per oral agreement between the parties and
relied upon a judgment of the Hon’ble Supreme Court in
Tax Sem Singh vs. Sukhmender Singh (1998) 3 SCC 471
that there can be equally binding contract between the
parties on the basis of oral agreement unless the law
requires the agreement to be in writing. However, the
defendant has not pleaded in the written statement that
there has been an oral agreement between the parties to
return the positives to the defendant on completion of the
job done. In its written statement, the defendant has only
pleaded that they have given a payments schedule in their
fax letter dated 19.3.97 and the defendant has not given
date of handing over the positives to them. Rather DW-1
admitted in cross-examination that he had neither verbally
nor in writing demanded the positives. Even in the letter
dated 4.12.96 Ex.PW1/115, fax message dated 20.9.97
Ex.PW1/114 and last letter dated 1.6.98 Ex.PW1/19, the
defendant did not demand the positives or cost thereof
from the plaintiff. The value of the positives has not been
pleaded by the defendant in the written statement but DW-
1 deposed the same as Rs.7,000/-. But this deposition of
DW-1is beyond pleadings and cannot be looked into. The
defendant has neither claimed set off of the value of the
positives nor filed counter claim against the plaintiff. So,
when there is neither pleading on behalf of the defendant
about the alleged oral agreement for return of positives nor
claim by way of set off or counter claim, the admitted
amount of Rs.69,530/- cannot be reduced by R s.7,000/-.
The Ld. Counsel for the defendant relied upon a judgment
of hon’ble Himachal Pradesh High Court Himachal Fruit
Grower Co-operative Market and Processing Society Ltd. vs.
Upper India Food Preservers and Processors AIIIIR 1984
RFA No.151/2000 Page 2 of 3
H.P.18 and pleaded that when there is breach on the part
of the plaintiff and not on the part of the defendant, the
plaintiff is not entitled to any damages or interest. But the
defendant has failed to prove any oral agreement between
the parties regarding return of positives by the plaintiff to
the defendant and hence, it cannot be said that the plaintiff
was at fault.”
4. I do not find any error whatsoever in the findings and conclusions
of the Trial Court. The Trial Court has correctly observed that neither in the
written statement there was any mention of any agreement to return the
positives and nor was the value of such positives mentioned. The Trial Court
has also referred to the last letter dated 1.6.98 being Ex.PW1/19 in which the
appellant/defendant did not demand the positives of the cost thereof from
the respondents/plaintiffs.
5. In view of the above, I do not find any error in the impugned
judgment and decree. The appeal is therefore dismissed, leaving the parties
to bear their own costs.
JANUARY 21, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.151/2000 Page 3 of 3
+ RFA No.151/2000
st
% 21 January, 2011
M/S USHAK KAAL ADVERTISING (P) LTD. ...... Appellant
Through: Mr. Sunil Bagai, Advocate.
VERSUS
SHRI K.L. SHROFF AND ANOTHER ...... Respondent
Through: Mr. J.S.Bakshi, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this First Appeal under Section 96 of
the Code of Civil Procedure, 1908 is to the impugned judgment and decree
dated 19.1.2000 whereby the suit of respondent/plaintiff for recovery has
been decreed along with interest on account of non-payment by the
appellant of the bills of the respondent/plaintiff pertaining to printing jobs
which were done by the respondent/plaintiff for the appellant/defendant.
2. Before this Court, learned counsel for the appellant argued that
the appellant was not responsible for any delay in payment and the delay
RFA No.151/2000 Page 1 of 3
caused in making the payment was on account of the respondent/plaintiff not
returning the positives. He has argued that since the respondent/plaintiff
was thus guilty of breach of contract he was not entitled to any interest.
3. This aspect of the matter has been dealt with by the Trial court in
the following words:
“It is argued by the Ld.Counsel for the defendant that the
plaintiff did not return the positives worth Rs.7,000/- to the
defendant as per oral agreement between the parties and
relied upon a judgment of the Hon’ble Supreme Court in
Tax Sem Singh vs. Sukhmender Singh (1998) 3 SCC 471
that there can be equally binding contract between the
parties on the basis of oral agreement unless the law
requires the agreement to be in writing. However, the
defendant has not pleaded in the written statement that
there has been an oral agreement between the parties to
return the positives to the defendant on completion of the
job done. In its written statement, the defendant has only
pleaded that they have given a payments schedule in their
fax letter dated 19.3.97 and the defendant has not given
date of handing over the positives to them. Rather DW-1
admitted in cross-examination that he had neither verbally
nor in writing demanded the positives. Even in the letter
dated 4.12.96 Ex.PW1/115, fax message dated 20.9.97
Ex.PW1/114 and last letter dated 1.6.98 Ex.PW1/19, the
defendant did not demand the positives or cost thereof
from the plaintiff. The value of the positives has not been
pleaded by the defendant in the written statement but DW-
1 deposed the same as Rs.7,000/-. But this deposition of
DW-1is beyond pleadings and cannot be looked into. The
defendant has neither claimed set off of the value of the
positives nor filed counter claim against the plaintiff. So,
when there is neither pleading on behalf of the defendant
about the alleged oral agreement for return of positives nor
claim by way of set off or counter claim, the admitted
amount of Rs.69,530/- cannot be reduced by R s.7,000/-.
The Ld. Counsel for the defendant relied upon a judgment
of hon’ble Himachal Pradesh High Court Himachal Fruit
Grower Co-operative Market and Processing Society Ltd. vs.
Upper India Food Preservers and Processors AIIIIR 1984
RFA No.151/2000 Page 2 of 3
H.P.18 and pleaded that when there is breach on the part
of the plaintiff and not on the part of the defendant, the
plaintiff is not entitled to any damages or interest. But the
defendant has failed to prove any oral agreement between
the parties regarding return of positives by the plaintiff to
the defendant and hence, it cannot be said that the plaintiff
was at fault.”
4. I do not find any error whatsoever in the findings and conclusions
of the Trial Court. The Trial Court has correctly observed that neither in the
written statement there was any mention of any agreement to return the
positives and nor was the value of such positives mentioned. The Trial Court
has also referred to the last letter dated 1.6.98 being Ex.PW1/19 in which the
appellant/defendant did not demand the positives of the cost thereof from
the respondents/plaintiffs.
5. In view of the above, I do not find any error in the impugned
judgment and decree. The appeal is therefore dismissed, leaving the parties
to bear their own costs.
JANUARY 21, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.151/2000 Page 3 of 3