TaxTMI 
TaxTMI 
TaxTMI 
2013 (10) TMI 1465
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.... ₹ 5 lacs was permitted to be withdrawn by the respondent/plaintiff subject to furnishing a Bank Guarantee and the balance of ₹ 5 lacs was ordered to be kept in a fixed deposit. The said amount of ₹ 5 lacs was withdrawn by the respondent/plaintiff against furnishing a Bank Guarantee and which was renewed from time to time. The appeal was on 15th April, 2013 dismissed in default and the balance amount of ₹ 5 lacs lying deposited in this Court together with interest accrued thereon was ordered to be released to the respondent/plaintiff and the Bank Guarantee was discharged. The appellants/defendants applied for restoration, which was allowed on 21st May, 2013. The counsel for the respondent/plaintiff on enquiry informs that in accordance with the order dated 15th April, 2013 the balance amount of ₹ 5 lacs with interest accrued thereon has been received by the respondent/plaintiff and the Bank Guarantee earlier furnished by the respondent/plaintiff duly discharged has also been returned to the respondent/plaintiff. 3. The senior counsel for the appellants/defendants and the counsel for the respondent/plaintiff have been heard. 4. The respondent/plaintif....
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.... the fabricated garments/goods so as to reach the same to the buyers of the appellants/defendants within time. 9. The learned Addl. District Judge in the impugned judgment, in this regard has found/observed/held:- (a). that it was not in dispute that the appellants/defendants had received the legal notice dated 10th January, 2000 got served by the respondent/plaintiff demanding the balance amount of ₹ 10,30,016.97p due; (b). that the appellants/defendants in their written statement had pleaded having sent a reply dated 9th February, 2000 (wrongly mentioned in the impugned judgment in para 19 as 9th July, 2000) to the said notice; (c). that the respondent/plaintiff had disputed receipt of any such reply dated 9th February, 2000; (d). the appellants/defendants had not proved the said reply dated 9th February, 2000 and had also not placed any copy of the same on record; (e). therefore an adverse inference had to be drawn against the appellants/defendants that either reply had not been sent or if sent did not contain the defence as taken in the written statement; (f). that the appellants/defendants had not filed any claim/counter claim for recovery of ₹ 4,254.2....
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.... There is thus no evidence on record of the appellants/defendants having incurred air freight charges for which the debit notes were raised on the respondent/plaintiff. 13. At this stage notice may be taken of the application filed by the appellants/defendants under Order 41 Rule 27 of the CPC. The appellants/defendants along with the said application have filed a photocopy of the reply dated 9th February, 2000 stated to have been got sent by the appellants/defendants to the legal notice dated 10th January, 2000 got signed by the respondent/plaintiff and the photocopy of the postal receipt under which the said reply was sent. 14. The senior counsel for the appellants/defendant has contended that the said reply though pleaded, remained to be filed before the Trial Court and now tenders the same into evidence. It is contended that since the learned Addl. District Judge, in the impugned judgment, has drawn adverse inference for non-production of the said reply, it is deemed expedient to prove the same. 15. The counsel for the respondent/plaintiff has argued that though he has filed a reply to the said application, opposing the same, and even though no office copy of the reply or or....
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....tting by the respondent/plaintiff on his copy of the challans produced before the Court. 20. I have enquired from the senior counsel for the appellants/defendants whether the appellants/defendants have produced the originals of the challans which should be in possession of the appellants/defendants, as delivery of goods in pursuance to the said challans is not disputed. 21. The senior counsel for the appellants/defendants has fairly conceded that the appellants/defendants have not produced the originals or their copy of the challans. Once that is so, the mere fact that there is a cutting, cannot ipso facto lead to an inference that the re-written rate is not the agreed rate. It is well nigh possible that the deleted rate was written by mistake and the correction is as per the agreement. 22. It has next been enquired from the senior counsel for the appellants/defendants whether there is any other document from which it can be gathered that the rate agreed was of ₹ 265/- and not of ₹ 290/-. 23. It is candidly stated that there is none. 24. The senior counsel for the appellants/defendants has lastly contended that the respondent/plaintiff did not prove its ledger acco....