SAR AGENCIES Vs. KALINGA INTERNATIONAL

JUDGEMENT

(1.) THE challenge by means of this regular first appeal is to the impugned judgment and decree dated 30.11.1996 whereby the suit of the Respondent/plaintiff for recovery of money with respect to the goods supplied was decreed. The bills in question by which the Respondent claims to have supplied the goods to the Appellant are Ex.PW1/2 dated 25.3.1989 for Rs. 8678.77/ -, Ex.PW1/3 -3A dated 16.3.1989 for Rs. 75,000/ - and Ex.PW1/4 dated 1.8.1989 for Rs. 8497/ -.

(2.) THE Appellant/Defendant appeared and contested the suit on the ground that no materials was received by it from the Respondent pertaining to these bills and in fact materials pertaining to these bills were received by another contractor at site Mr. Niranjan Singh and who in fact made part payment of Rs. 72,263/ - with respect to these bills.

(3.) FOR fastening liability upon the buyer of goods, it is a sine qua non for the seller/plaintiff to prove that the goods were in fact received by the Appellant/buyer. A reference to the 3 bills i.e. Ex.PW1/2 to PW1/4 shows that there is no endorsement of receipt on the bills i.e. Ex.PW1/3 and PW1/4. Only on one bill i.e. Ex.PW1/2 there is an endorsement of receipt of one person called Shivji Singh, however, there is no evidence at all as to who this person Shivji Singh is and whether at all he was in the employment of the Appellant/Defendant. The Respondent/plaintiff could have very well proved this fact that Shivji Singh was an employee of Appellant by showing earlier bills received by Sh. Shivji Singh on behalf of Appellant, if Shivji Singh was the employee of the Appellant, however, no such earlier bills showing endorsement of Shivji Singh have been filed. Obviously, therefore Shivji Singh was not an employee of the Appellant. The curious aspect, and the admitted fact, is that out of the total value of Rs. 92,700/ - of these bills, a payment of Rs. 72,263/ - was made by one Sh. Niranjan Singh. Quite clearly therefore it was Sh. Niranjan Singh who received the goods under the subject bills and not the Appellant.