IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. SUIT No.2239 of 1989. SUIT No.2239 of 1989. SUIT No.2239 of 1989. M/s Makanji Timbers (Regd.) the partnership firm having its place of business at 81, Victoria Road, Bombay 400 010. ..Plaintiffs. ..Plaintiffs. ..Plaintiffs. Versus. Shree Madhi Vibhag Khand Udyog Sahakari Mandli Ltd. having its office address as P.B. No. 5, At & Post Madhi, Pin 394340, District Surat,Gujarat State. ..Defendant. ..Defendant. ..Defendant. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. DATED: 21.02.2008. DATED: 21.02.2008. DATED: 21.02.2008. Mr Sandeep Parikh, i/b Shantilal & Co. Advocate for Mr Sandeep Parikh, i/b Shantilal & Co. Advocate for Mr Sandeep Parikh, i/b Shantilal & Co. Advocate for the Plaintiffs. the Plaintiffs. the Plaintiffs. None for the Defendant. None for the Defendant. None for the Defendant. JUDGMENT. JUDGMENT. JUDGMENT. -------- 1. Heard. Perused pleadings, documents and evidence. 2. This suit is filed by the plaintiffs for recovery of sum of Rs. 60,850.90 for the goods sold and delivered to the defendant. The plaintiffs are also claiming interest @ 18% per annum on the principal sum of Rs. 53,852.50 ps. for the period from 1.10.1988 till 11.7.1989 i.e. ( 2 ) till filing of the suit. 3. On being served with the suit summons the defendant appeared and filed its written statement, principally contending therein that the payments have already been made by it by demand draft drawn in favour of the plaintiffs. 4. Pursuant to the rival pleadings the following issues vide order dated 29.8.2007 were framed. ISSUES: ISSUES: ISSUES: ------ ------ ------ 1. Whether the plaintiffs prove that the defendant had placed the order with plaintiff for the supply and purchase of Vellapine Wood Worth of Rs. 53,852.50? 2. Whether the plaintiffs prove that they supplied the goods of Vellapine Wood worth Rs. 53,852.50? 3. Whether the plaintiffs prove that the above said goods were received by the defendant hence the defendants are liable to pay the amount of Rs. 53,852.50 with interest? 4. Whether the defendant proves that defendant has sent demand draft for ( 3 ) payment of goods to the plaintiffs? CONSIDERATION: CONSIDERATION: CONSIDERATION: ------------- ------------- ------------- 6. The plaintiffs have filed affidavit of evidence in support of their suit claim and has proved all the documents placed on record. The statements made on oath in the form of affidavit of evidence and the documents filed on record went unchallenged since the defendant neither appeared through Advocate nor in person. 7. The defendant did not cross-examine the plaintiffs. The defendant did not challenge statements made by the plaintiffs on oath. The legality, validity and genuineness of the documents have also not been challenged. 8. First three issues basically revolve around the fact of placing order with the plaintiffs by the defendant for purchase and supply of woods worth Rs.53,852.50 ps with delivery thereof; whereas, the last issue shifts burden on the defendant; with regard to payment of price of goods to the plaintiffs. ( 4 ) 9. The plaintiffs have filed documents on record in support of its suit claim. The plaintiffs have also placed on record the photo copy of the certificate issued by Registrar of Firms evidencing registration of their partnership firm. The plaintiffs have also produced a letter written by the defendant to them dated 20-8-1988 requesting them to despatch goods immediately as per ordered terms and conditions. The original letter signed by the defendant’s Managing Director is produced on record. The office copy of delivery challan evidencing the delivery of goods together with the office copy of Bill drawn in favour of the defendant have also been filed on record. In addition to this, the office copy of the lorry receipt evidencing handing over of goods to the carrier has also been filed on record. All these three documents amply prove that the defendant had placed an order on the plaintiff-firm to supply goods and that the goods ordered worth Rs. 53,852.50 ps were supplied by the plaintiffs and that those goods were delivered and received by the defendant. The plaintiffs have thus amply demonstrated that the defendant is liable to pay ( 5 ) Rs. 53,852.50 ps. The defendant claims to have made payment of Rs. 53,852.40 ps. by demand draft No. 821431 issued by Surat District Co-operative Bank Ltd. This by itself prove these issues. Hence, issue Nos. 1, 2 and 3 are answered in the affirmative i.e. in favour of the plaintiffs and against the defendant. 10. It appears that the aforesaid demand draft was sent by the defendant to the plaintiffs on 10-10-88 under postal certificate (U.P.C.) which the plaintiffs did not receive. The plaintiffs by their letter dated 22.2.1988 informed the defendant that they did not receive this demand draft and requested for new cheque along with "C" form. The said letter was received by the defendant. However, the defendant maintained having sent this draft under U.P.C. and replied that it was not their responsibility to send another cheque. They contended that if the draft was stolen by somebody during postal transit it was not their responsibility to see receipt thereof as such the defendant refused to make payment. This part of evidence coming from the custody of the ( 6 ) plaintiffs is supported by letters exchanged between the parties. This evidence in the form of various letters addressed by the defendant to the plaintiffs itself is sufficient to reiterate the findings given on the first three issues of which burden has been discharged by the plaintiffs. 11. So far as the last issue with regard to the payment and discharge of liability is concerned it is no doubt true that the defendant might have sent demand draft to the plaintiffs but they did not receive it. It is also clear from the material available on record that the draft was sent by U.P.C. As a matter of fact, it was obligatory on the part of the defendant to take reasonable care while sending demand draft to the plaintiffs. Demand draft ought to have been sent by Registered A.D. If it was sent under U.P.C. to save the postal charges and if the draft is lost in postal transit and not received by the plaintiffs, then the plaintiffs are justified in making demand of the outstanding dues. Mere despatch of the draft does not give discharge to the defendant. It appears that the draft has been stolen by somebody in postal ( 7 ) transit which is clear from the letter issued by the Catholic Co-operative Bank Ltd. 12. In the above facts and circumstances of the case, the plaintiffs have amply proved that they have sold, despatched and delivered goods to the defendant, that they did not receive payment of their outstanding dues and that the defendant failed to make payment of the price of the goods purchased by it. The plaintiffs are, thus, entitled for a decree in terms of prayer made in the suit with costs. 13. In the result, the suit is liable to be decreed. Hence, the following order: ORDER ORDER ORDER ----- (i) The suit is decreed in terms of the prayer clause incorporated in the plaint. (ii) The defendant do pay to the plaintiff a sum of Rs.60,850.90 with interest thereon from the date of filing of the suit on the aggregate principal sum of Rs.53,852.50 ps. at the rate of ( 8 ) 10% per annum till realization of decretal amount in full and final with costs. (iii) Decree be drawn in terms of this order. JUDGE. JUDGE. JUDGE.