BIPS SYSTEMS LTD Vs. TATA INFOTECH LTD

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 11th December, 2002 whereby a decree for recovery of L 2,35,110/- along with interest on that amount @ 18% from 29.4.1998 to 28.4.2001 and @ 12% per annum thereafter and proportionate cost was passed in favour of the respondent and against the appellant. The facts giving rise to the filing of the appeal can be summarized as under:

(2.) The invoices filed by the plaintiff/respondent indicate that the goods were sent to the appellant through Prakash Air Freight. The numbers of consignment notes as well as their dates have been given on the invoices, however, there is absolutely no evidence produced by the plaintiff/respondent to prove the actual delivery of the goods purporting to have been sent through the said courier vide consignments, particulars of which have been detailed on the invoices. No one from Prakash Air Freight has been produced to prove the delivery of the consignments to the appellants. Even the consignment notes have not been filed during the course of trial though their numbers were recorded in the invoices. Since the appellants had denied the receipt of goods, it was incumbent upon the plaintiff/respondent to prove the delivery of goods to the appellant. This could have been easily done by producing the consignment notes and an official from Prakash Air Freight to prove the delivery of the consignments to the appellants. That having not been done, it can hardly be disputed that the plaintiff/respondent failed to discharge the onus placed on it to prove the delivery of the consignments to the appellants/defendants. In fact, no documentary evidence at all was produced by the plaintiff/respondent to prove the delivery of the goods to the appellants.

(3.) A perusal of the judgment passed by the learned Trial Judge would show that he drew an adverse inference against the appellants on account of their failure to reply to the notice of demand received from the plaintiff/respondent. I find that not only a notice, a number of reminders were also sent by the plaintiff/respondent to the appellants from time to time demanding the suit amount from them. There is ample proof of the service of notices as well as those reminders upon the appellants. It is also not in dispute that there is statutory presumption of service of the notices/reminders sent by registered post. The A.D. cards bearing stamp of appellant No.1 are also on record. These documents are sufficient to prove service of notice of demand and several reminders upon the appellants. But in my view, mere failure of the appellants to respond to the notice and reminders was not enough to prove the case of the plaintiff/respondent. The receipt of the goods having been denied by the appellants, the plaintiff/respondent ought to have proved such delivery by appropriate documentary and/or oral evidence. The failure to respond to the demand notice and reminders could have been used as a corroborative circumstance, had the plaintiff/respondent produced some other evidence to prove the delivery of the goods to the appellants/defendants. But, in the absence of any evidence to prove the supply of goods in question, to the appellants, there is no escape from the conclusion that the plaintiff/respondent failed to prove supply of goods in question to the defendants/appellants.