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Virender Kumar Versus Mool Chand Shripal Jain

2017 (8) TMI 341 - DELHI HIGH COURT

Suit for recovery along with interest - outstanding dues - fuel/diesel purchased by the appellant/defendant no. 1 from the respondent/plaintiff who owns a retail petrol pump outlet of Bharat Petroleum in Delhi - Held that:- No fault can be found with the reasons, discussion and conclusion of the trial court holding that the appellant/defendant no.1 who was in transportation business and owned trucks used to purchase fuel from the respondent/plaintiff’s petrol pump and that he did not clear the o .....

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any alleged inflation of the bills and that on preponderance of probabilities as per the evidence on record the appellant/defendant no.1 had purchased fuel on credit basis. Once two possible views arise as per the record of the trial court, and the trial court has taken one possible and acceptable view, unless such a view is illegal or perverse this Court will not interfere with the said findings and conclusion of the trial court. - We cannot agree with the arguments urged on behalf of the a .....

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nclusion of the trial court holding that Ex. PW1/2 to Ex.PW1/9 are the unpaid invoices i.e serialized details of the unpaid invoices. - The appellant/defendant no.1 is in transportation business and whose trucks took fuel from the respondent/plaintiff, which was not paid for and therefore the respondent/plaintiff had to deposit the security cheque towards recovery of the outstanding amount and which was dishonored on presentation and therefore the subject suit came to be filed. Appeal dismis .....

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ivil Procedure, CPC by the defendant no. 1 in the suit impugning the judgment of the trial court dated 25.1.2017 by which the trial court has decreed the suit for recovery of ₹ 7,91,776/- along with interest on account of fuel/diesel purchased by the appellant/defendant no. 1 from the respondent/plaintiff who owns a retail petrol pump outlet of Bharat Petroleum in Delhi. 2. The facts of the case are that the respondent/plaintiff pleaded that the appellant/defendant no. 1 was in transportat .....

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outstanding amount in installments by desiring to get a running account with the respondent/plaintiff. It is then pleaded in the plaint that the outstanding amount remained unpaid as in August 2004. It is further pleaded that when credit was obtained and the account to be maintained by the respondent/plaintiff the same was subject to a security deposit, which though was originally waived, but, when appellant/defendant no. 1 sought revival of his account with the respondent/plaintiff then the res .....

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ff deposited the cheque for recovery of the outstanding amount, the same was dishonored and therefore not only the subject suit was filed but a complaint under Section 138 of the Negotiable Instruments Act, 1881 was also filed and which is pending disposal before the concerned court of Metropolitan Magistrate. 3. Appellant/defendant no. 1 contested the suit and pleaded that the suit is barred by limitation. It was also pleaded that the security cheque which was claimed by the respondent/plaintif .....

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re the credit facility was discontinued since inception itself. It is further pleaded that the appellant/defendant no. 1 in good faith and trust upon the respondent/plaintiff agreed to keep the security cheque with the respondent/plaintiff although no purchases were to be made on credit basis. The suit was accordingly prayed to be dismissed. 4. After pleadings were complete, the trial court framed the following issues:- 1. Whether the plaintiff firm is a registered partnership firm and competent .....

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and therefore the suit is not covered under Article 1 of the Limitation Act, 1963. 6.(i) With respect to issue nos. 3 and 4 trial court has held that there is no misutilization of the security cheque and this security cheque was rightly presented by the respondent/plaintiff to clear unpaid invoices Ex.PW1/2 to Ex.PW1/9. Trial court has further held that the respondent/plaintiff has proved that there were purchases by the appellant/defendant no. 1 of the fuel on credit basis and there is no proo .....

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etter to the respondent/plaintiff with respect to alleged discrepancies in the bills because of inflation of the bills on the ground that litres said to be filled in the trucks were less than actually what was filled in. The trial court relied upon the invoices Ex.PW1/2 to Ex.PW1/9 and held that amounts were due to the respondent/plaintiff for the unpaid bills and for which security cheque was deposited. Trial court has held that the security cheque cannot be said to have been misutilized by the .....

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xamination when confronted with the complaint Ex.DW1/P-1 where DW-1 himself has stated that he had sent a reply in response to the legal notice sent by the respondent/plaintiff. (ii) The aforesaid conclusions have been arrived at by the trial court on the basis of the following paras of the impugned judgment and which paras read as under:- 20. If we consider the evidence of defendants, DW1 Virender Kumar in his evidence has testified all the above stated facts however, has failed to explain cert .....

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le debt. No doubt, such presumption is rebuttable. But, defendant was required to give some documentary or specific evidence to establish that the said cheque No. 907997 was not given for encashment or that was given only as security. If cheque was admittedly bearing the signatures of defendant and rest of the details were not filled on the cheque. That by itself does not render the cheque to be not good for encashment of any lawful liability. When it is denied by the plaintiff that cheque was g .....

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irm in cash or by way of cheque as well as on credit, in year 200506 as well. DW1 further admits that when said cheque returned dishonoured, he had received legal notice from plaintiff which is Ex.PW1/14. However, DW1 denies giving any reply to such notice of plaintiff but DW1 was confronted with the complaint Ex.DW1/P1 of defendant Virender Kumar, in which he himself has stated in that complaint that he had sent the reply in response to the notice sent by plaintiff firm. These facts assume impo .....

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to defendants have been reflected along with different payments received by the plaintiff from time to time, along with the dishonored cheque No. 907997 of Rs.7,91,776/, one can easily conclude that suit is within limitation because all the transactions regarding different payments made from time to time as well as issuance of different cheques including cheque No. 907997, were carried out within the three years period of accrual of cause of action. xxxxx xxxxx xxxxx 34. Now, if we consider the .....

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iff firm payments have been regularly made and there was no credit running account. If we consider this aspect of the matter, nothing could come out in the cross-examination of PW1, PW2 or PW7 to show that there was never any credit sale of fuel for trucks of defendants. In the entire cross examination of PW1, it is nowhere suggested to the witness that invoices Ex.PW1/2 to Ex.PW1/9 are not correct or in any way inflated etc. In the absence of any such suggestion coming in the evidence of PW1, i .....

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also argued that defendants never had any credit accounts in the books of plaintiff as cash amount has been paid on each occasion of drawing fuel from the outlet of the plaintiff firm. Taking such plea on the face of it, first of all it be again noted here that PW1 is partner of the plaintiff firm who has deposed about the claim of the plaintiff firm but in his crossexamination it is nowhere even suggested to this witness that exaggerated bills have been raised or supply of fuel has been shown t .....

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plaintiff firm continued in cash or by way of cheque or on credit in year 200506. DW1 further admits that he had never given any notice or letter to plaintiff regarding discrepancies in quantity of liters supplied to the trucks of defendant as mentioned in para 10 of his affidavit. Thus, it is clear that nothing could come out in the evidence of DW1 or DW2 Dilbag Singh to establish that plaintiff had inflated their claim by falsely showing larger quantity of liters of fuel supplied than actual .....

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there was never credit sale of fuel by plaintiff firm to defendant no. 1. So, it can be safely concluded that this aspect of the defence of defendant no. 1 have not be proved. Certain arguments has been raised regarding number of trucks or regarding name of the firm mentioned in the photographs. But, I find those aspects do not have much bearing in the fact and circumstances of the case because substantially this court is required to evaluate whether there is any legal liability existing against .....

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its petrol pump and that assurance was given for discount, does not by itself negate any legal liability of outstanding amount, for supply of fuel which has been duly proved by the plaintiff firm by preponderance of probabilities and could not be disproved by defendants. (underlining added) 7. In my opinion, no fault can be found with the reasons, discussion and conclusion of the trial court holding that the appellant/defendant no.1 who was in transportation business and owned trucks used to pu .....

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ly observed that witness of the respondent/plaintiff was not cross-examined for any alleged inflation of the bills and that on preponderance of probabilities as per the evidence on record the appellant/defendant no.1 had purchased fuel on credit basis. Once two possible views arise as per the record of the trial court, and the trial court has taken one possible and acceptable view, unless such a view is illegal or perverse this Court will not interfere with the said findings and conclusion of th .....

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hat the respondent/plaintiff admitted that the subject cheque was given earlier in the middle of the year 2005 as security and not for encashment and which was dishonored as per the respondent/plaintiff when the same was presented on account of non-payment of outstanding dues. 9.(i) I cannot agree with the arguments urged on behalf of the appellant/defendant no.1 because invoices Ex.PW1/2 to Ex.PW1/9 are in the nature of serialized details of invoices, however, these documents Ex.PW1/2 to Ex.PW1 .....

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