a c ^•^ INTHE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) F.A. No. /09 First Appeal under Section 96 of Civil Procedure Code 1908 IN THE MATTER OF Appellant (Defendant): - ;^ ..-{'n.^ ••"" .Respondent (Plaintiffs): Smt. Rakhi Devi Meghani, W/o Shri Dharamdas Meghani, Proprietor. M/s Shri Bhawani Industries, aged about 52 years R/o 4/448/4, Gudiyari, Dist. Raipur (C.G.) Versus ^/-M/s Jurgyan Industries, 2/3, Omti Nagar, Near Clock tower, Jabalpur 482002 (M.P.) wm HIGH COURT OF CHHATTISGARH. BILASPUR FIRST APPEAL No. 145 OF 2009 ^ APPELLANT PLAINTIFF Smt. Rakhi Devi Meghani Versus RESPONDENT DEFENDANT M/s Jurgyan Industries JUDGMENT Post for pronouncement of Judgment ^~ -9-2011 Sd/- N.K. Agrawal Judge '^. HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT PLAINTIFF RESPONDENT DEFENDANT F.A. No. 145/2009 Smt. Rakhi Devi Meghani Versus M/s Jurgyan Industries -v"'f. S.B. : HON'BLE SHRI N.K. AGARWAL. J PRESENT:- Shri Adhiraj Surana, counsel for the appellant. Shri Sunil Otwani, counsel for the respondent. JUDGMENT ( ^-9-2011) 1. Thisis plaintiff's first appeal under Section.96 of the Civil Procedure Code (for brevity 'the C.P.C) against the judgment and decree dated 15.04.2009 passed by the 3rd Additional District Judge, Raipur in Civil Suit No.38B/2007 whereby and whereunder the plaintiff's suit was dismissed. 2. Facts of the case in brief are as under :- (i) The plaintiff is the proprietor of Shri Bhawani Industries situated at Raipur, manufacturing core pipes. The defendant-industiy is manufacturer of cello tapes situated at Jabalpur. Vide letter dated 01.05.2007 (Ex.P.l) the plaintiff offered defendant supply of followingmaterial: 100% KraftPaper / Board Core Piues Description : 76+/-0.5 mm ID x 84+/-0.5 mm OD x length +/-1 mm. Basic Price Per meter: Rs. I'G.OO/- (wifh printed paper) —"^ S^^SaSvM.-.s^.f. CST @ 3% Extra Against C Form with Ex-Godown at Raipur. (ii) Vide Ex. P.2, the defendant accepted the offer and sent purchase order of 5000 meters of tube. Plaintiff supplied 4707.65 meters Core Pipe on 14.7.2007 and raised BU1 No.12 amounting to Rs.77,738/-. (iii) According to plaintiff, the defendant, after receipt of the above goods, did not pay the amount of Bill No.12 i.e. cost of the goods supplied despite repeated demands and also notice sent by her, and therefore, the plaintiff is entitled for recovery of above amount along with interest and cost. (iv) The defendant, by filing written statement, admitted receipt of above goods but declined to accept the goods supplied by the plaintiff on the ground, the goods supplied are not of the same description as supplied by the plaintiff i.e. not in conformity with the contract. 3. The learned trial Court framed the following issues: •^."^^. ^SSfe s£^ vs^'s: fjs't^'wk^^a^gass^es^sa^p^^gassM^'s'^^'esr <t>11<h c(K f^q Pra>^ 01- Wf qi^t qif ilR|c||<{) ^ 5000 'fttT? qit? qrfq wcnf ^»T 3TT^?i Rqr sir ? "?T' 02- ^qr qi^t 4 ffRrar^t q?t ^^T 31T^?T c^ 4R4lc)-1 ^' Riaft 14/07/07 <rt 5000 ifte? q>h qifir W<T[^ qft t ? •m, v^, inir ar^wr ^r aft i- 03- ^TvS ^yRitfi<i1^^^^ 79.485/- %0 ^^\ Pl<hddl t ? -^i^- 04- vn qrit yRit<i<{1 ^ <j4'<1<td ^rftr ^fs 18 uRlSld ^t ^? ^ SiITuT OTT<T ^?4 ^T srfererftt ? "^" 05- ST-V •ttgl^dl ^q ^T? c2T?T ? "qrit ~<sf ^rar PK'W ft>3TT lreT" 7. Plaintiff examined Abhishek Meghani as her witness and defendant examined Sudhir Kumar Budhrani as their witness. The learned trial Court dismissed the suit finding inter alia: the goods supplied to the defendant were not in conformity with the contract inasmuch as were not of the same quality and description, as agreed upon between them. Shri Adhiraj Surana, learned counsel appearing for the appellant/plaintiff would submit: the plaintiff had supplied the goods strictly in accordance with the quotation (Ex.P.l), which was duly accepted by the defendant vide his letter (Ex.P.2. The defendant failed to substantiate his plea that the goods supplied were not of the quality, agreed upon between the parties. It was further contended that in the letter dated 24.09.07 (Ex.P. 10), it has been mentioned that some goods, out of the goods supplied, are useable, therefore, under Section 13 (2) ofthe Sale ofGoods Act, 1930 (henceforth the Act of 1930'), the defendant is prohibited from rejecting the goods and treating the contract as repudiated and remedy of the defendant, tf any, lies in terms of Section 12 (3) of Act of 1930 in claiming damages. On the other hand, Shri Sunil Otwani, learned counsel appearing for the respondent/defendant would submit: the goods supplied were not in accordance with the quotation. Immediately after receipt of the goods, the defendant has intimated about the-above fact and also requested the plaintiff to lift the material from his yb '^ factory premises. The learned trial Court, on appreciation of the evidence, documentary as well as oral, has rightly dismissed the suit holding the goods are not of the same quality as offered. 8. I have heard learned counsel for the parties, perused the record of the trial Court including judgment and decree impugned. 9. Admittedly, the plaintiff supplied defendant 4707.675 meter core pipe and price of above goods is Rs.79,485/-. 10. The dispute raised by the defendant was that the goods supplied by the plaintiff were not in conformity with the contract, and therefore, no concluded contract entered into between the parties. The goods were lying in their godown. Despite their request, the plaintiff did not lift the above goods from godown. 11. Although the other letters alleged to be sent by the defendant were denied by the plaintiff but defendant's letter dated 18.07.2007 (Ex.D.5) was not denied by the plaintiff. Vide above letter, the defendant intimated the plaintiff fhat the goods supplied are not in conformity with the sample sent to them and due to which, the entire lot is not in use and is lying in their factory preraises as it is. 12. Be that as it may, the defendant did not file any technical report showing goods supplied by the plaintiff are not of the same description as offered. In the absence thereof, no definite finding could be arrived at regarding quality of the goods. Further, the main dispute between the parties was with regard to quality , of the goods supplied but the trial Court, without .^'- ,' <? raising such issue, has decided the above fact that too in the absence of evidence in this regard. 13. The trial Court ought to have framed issue "whether the goods supplied by the plaintiff are in accordance with the description mentioned in the supply letter Ex.P.l" and thereafter, after due providing due opportunity of leading evidence to both the parties on the above issue, ought to have decided the above issue inasmuch as the result of the suit is wholly dependent upon the decision of the above issue. Therefore, the finding of the trial Court that the goods supplied by the plaintiff are not in conformity with the contract, being not based on any cogent and clinching evidence, is not sustainable in law. 14. As per Section 41 of the Act of 1930, the buyer is entitled for a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with fhe contract and as per Section 43 of the Act of 1930, unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, "having the right so to do", he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them. 15. The words "having the right so to do" occurring in the above section are of wide import. In order to invoke Section 43 of the Act of 1930, the buyer is bound to prove that goods supplied to them are not in conformity with the contract. 16. For the reasons mentioned hereinabove, the appeal is allowed. The judgment and decree impugned is set aside. The matter is remitted back to the trial Court to decide the suit after framing issue as referred ^ 33^ 'y. hereinabove and after affording full opportunity of hearing and leading additional evidence on the above issue to both the parties. 17. No order as to costs. Sd/- N.K. Agrawal Judge