Alok Sharma, J. - (1.) AGGRIEVED of the judgment and decree dt. 07.08.2012, passed by the learned Additional District Judge No. 1, Jaipur Metropolitan, Jaipur decreeing the plaintiff -respondent's (hereinafter 'the plaintiff') suit for recovery of Rs. 97,551/ - along with interest, this first appeal under Sec. 96 CPC has been filed by the defendant -appellant (hereinafter 'the defendant'). The facts of the case are that the plaintiff filed a suit for recovery of Rs. 97,551/ - as amount constituted of the principal sum i.e. Rs. 77,551/ - and interest thereon i.e. Rs. 20,000/ - due and payable by the defendant for the supply of YKK zips. It was stated by the plaintiff that he was the authorized dealer of YKK India Pvt. Ltd. for sale of YKK zips and on an order placed by the defendant, he obtained the aforesaid YKK zips from the manufacturer thereof and supplied them against the defendant's purchase order dt. 19.11.2005. Details of bills under which the goods in issue were supplied to the defendant by the plaintiff were set out in Exhibits 3, 4 & 5. It was submitted by the plaintiff that the goods supplied were not rejected by the defendant and instead utilized, yet in spite of repeated demand, the amount due and payable under the said bills, aggregating to Rs. 77,551/ - constituted of principal amount and contracted interest, was not paid. It was submitted that in terms of condition No. 4 of the bills, interest @ 24% was payable subsequent to the amount under the bill become payable. On service of notice in the suit, a written statement of denial was filed by the defendant. It was stated that the goods in issue under the purchase order dt. 19.11.2005 were in fact purchased subject to quality as ordered. And payment of the goods supplied was to be made only after due satisfaction of the quality of the goods received matching the purchase order dt. 19.11.2005. It was submitted that it was incumbent upon the plaintiff to satisfy the defendant that the goods delivered were the goods ordered in all the requisite quality and manufactured by YKK Industry which is the leader in the said product category in the country. It was submitted that as a comfort to the purchase of the quality of the goods supplied being manufactured by YKK Industry, it was incumbent upon the plaintiff to supply along with goods supplied a copy of the delivery note received in duplicate by the plaintiff from YKK Industry. This delivery note was not supplied in spite of repeated demands consequent to which the defendant was not satisfied with regard to the nature of the goods supplied and their being in consonance with the quality requisite under the purchase order dt. 19.11.2005. It was submitted that in view of the aforesaid fact, the goods even though received as ordered were not utilized and in fact their non -utilization derailed the production of the defendant and rendered timely supplies to the buyers of the garments resulting impossible, in loss to the defendant. Therefore the payment for goods received was not made.
(2.) IT is important to record that neither the quantity of the goods as ordered and received was in dispute, nor was the rate thereof. Even the goods being sub -standard was not alleged. The whole defence of the defendant lay in the alleged inability or unwillingness of the plaintiff in supplying a copy of the delivery note in respect of the YKK zip supplied to it. On consideration of the pleadings of the parties, the learned trial Court framed three issues which are as under:
(3.) THE plaintiff examined himself as PW -1 and relied upon 19 exhibits filed and proved before the trial Court. The defendant examined Ajeet Man as DW -1 and relied upon seven documents, exhibited and proved before the trial Court as A/1 to A/7. On consideration of the matter, the trial Court in respect of issue No. 1 found that the goods ordered under the purchase order dt. 19.11.2005 were admittedly supplied and there was no dispute with regard to the quantity supplied, the rates agreed between the parties or even of the quality of the goods. The trial Court noted that it was not the specific case of the defendant that the goods were sub -standard. Adverting to the defence of the defendant with regard to the non -supply of delivery note purportedly received from the supplier YKK Industry, the trial Court noted that for one, supply of a delivery note from the manufacturer of the goods by the plaintiff was not a condition of the purchase order dt. 19.11.2005. The trial Court further noted that aside of the above, the plaintiff as authorized dealer of YKK Industry appeared to have purchased goods in bulk from the manufacturer and was supplied a simple delivery note by the manufacturer relating the entire quantity of the goods purchased as its dealer. The delivery note by the manufacturer YKK Industry in respect of bulk supplies covering various orders from different customers could not be supplied to each of the customers of the plaintiff. It was further noted that the dispute with regard to the non -supply of delivery note from YKK Industry stood settled in terms of Exhibit -7 which was a letter written by YKK Industry to the defendant stating that "we wish to confirm that this is a zipper produced at YKK India Factory and is genuine in all respects i.e. Tape, Dyeing, Slider, Enamelling, Bottom and Top Stops and movable Bottom stop. This zipper has not been tampered in any way and is exactly the same condition as supplied by us." In the facts of the case, the trial Court therefore concluded that the only defence set up by the defendant for non -payment of the sale price of the goods supplied by the plaintiff was unjustifiable and the plaintiff was therefore entitled to the sale price of the goods supplied and contracted interest thereon till the filing of the suit. Thus, the defendant was found liable to pay amount of Rs. 97,551/ - along with interest. In respect of issue No. 2, the trial Court found that even though under the contract interest @ 24%, as per condition No. 4 of the bills under which the goods were supplied by the plaintiff to the defendant, would be payable, yet in the exercise of the Court's discretion, only 12% simple interest on the amount due from the date of filing of the suit till the date of payment be paid. Judgment and decree was passed in terms above.;