- (1.) These appeals have been filed against the orders dated 07.11.2008 and 16.12.2008 passed by the High Court of Delhi at New Delhi in RFA No. 406 of 2007 and R.P. No. 415 of 2008 respectively. Vide order dated 07.11.2008, the High Court allowed the appeal filed by M/s. J.K. Lakshmi Cement Ltd. - Respondent herein and set aside the judgment and decree dated 14.03.2007, passed by the Additional District Judge, Delhi in Suit No. 125 of 2004, while restoring the suit filed by M/s. Rohini Traders - Appellant herein for trial afresh as per the observations made in the judgment. Brief Facts
(2.) (a) The Appellant claims itself to be a sole proprietorship concern working as third party commission agent of the Respondent-Company. The Appellant claimed a sum of Rs. 12,05,231/- as dues to be payable by the Respondent-Company as on 31.03.2004. Several requests were made to the Respondent-Company to pay the amount due but to no effect. Even after serving a legal notice dated 09.04.2004 to the Respondent-Company, it remained un-complied with. The Appellant filed a suit praying for decree of Rs. 14,21,250/- including the principal amount as also interest at the rate of 18 per cent per annum. The suit was contested by the Respondent-Company on the ground that it was barred by limitation as also on merits. The claim of the Appellant was denied and it was stated that as per the record of the Respondent-Company, a sum of Rs. 4,62,000/- is liable to be paid by the Appellant to the Respondent-Company. Other claims made by the Appellant were also denied. (b) During the pendency of the suit, the Appellant served a notice dated 05.07.2006 under Order XII Rule 8 of the Code of Civil Procedure, 1908 (in short 'the Code') calling upon the Respondent-Company to produce and show to the Court on the first date of hearing of the suit the following documents, viz., 1. Purchase Orders pertaining to the order placed by the Plaintiff; 2. Original record of the TDS Certificate issued by the company to the Plaintiff; 3. Details of the payment made to the Plaintiff; 4. Details of the payment received from the party whom order was placed by the Plaintiff; 5. Copy of the Ledger of the company related to the Plaintiff from the Financial Year 1997 to 2004; and 6. Copies of the Balance Sheets filed in the Income Tax Department and ROC for the years 1997 to 2004. (c) It appears that the documents were not produced on the first date of hearing. However, during the course of the hearing one Shri R.K. Gupta, General Manager of the Respondent-Company (DW-1) appeared before the Court and produced the documents mentioned at Item Nos. 3-6 and also stated that Item Nos. 1 and 2 would be available with the Appellant. The Appellant did not make any endeavor to get the documents produced by the Respondent-Company on record and to mark them and exhibited. (d) The trial Court, vide judgment dated 14.03.2007, decreed the suit in favour of the Appellant herein for a sum of Rs. 14,21,250/- along with the interest at the rate of 9 per cent per annum from the date of institution of the suit till the date of its realization. The trial Court held that the Respondent-Company had failed to explain as to why it had not placed on record its books of accounts and other related papers as asked for in the notice Under Order XII Rule 8 of the Code and drew an adverse inference. (e) Feeling aggrieved, the Respondent-Company preferred an appeal before the High Court of Delhi. (f) The High Court, after considering the material on record, came to the finding that the witness of the Respondent-Company (DW-1) was cross-examined in support of the documents produced by him in the Court pursuant to the notice Under Order XII Rule 8 of the Code. However, since the documents were neither exhibited nor brought on record, the High Court felt it proper in the interest of justice to restore the suit for further trial with certain directions. (g) An application seeking review of the judgment and order dated 07.11.2008 was filed whereupon the High Court re-summoned the trial Court record and re-perused the testimony of DW-1 from which it gathered that the witness had brought all the documents pertaining to the notice dated 05.07.2006 with respect to Item Nos. 3-6 and the other documents were with the Appellant and the witness was also cross examined in respect of the documents so produced. The review application was, therefore, dismissed. (h) Against the said orders, the Appellant has preferred these appeals before this Court.
(3.) Heard Shri Sunil Kumar, learned senior Counsel for the Appellant and Shri M.L. Lahoty, learned Counsel for the Respondent-Company. Contentions:;