IMPORTANT POINT
The main legal point established is the requirement for evidence of delivery in a commercial dispute and the impact of inconsistencies in the appellant's case on the court's decision.

JUDGMENT

Vibhu Bakhru, J. (Oral)

CM APPL. 64483/2023 (for exemption)

1. Exemptions allowed, subject to all just exceptions.

2. The application stands disposed of.

RFA(COMM) 293/2023 & CM APPL. 64482/2023 (for stay)

3. The appellant has filed the present appeal, impugning a judgement and decree dated 04.09.2023 (hereafter `the impugned judgment'), delivered by the learned Commercial Court in CS(COMM) 112/2021 captioned Nitesh Kumar v. Santokh Dhunna.

4. The respondent had filed the said suit claiming a sum of Rs.4,60,200/-(Rupees Four Lakhs Sixty Thousand Two Hundred only) from the appellant. It is the respondent's case that he had paid the said amount to the appellant for "fabricated expeller machine; fabricated packaging machine; fabricated flour milling machine and; fabricated box stitching machine".

5. Admittedly, the appellant had received the said amount of Rs.4,60,200/-from the respondent by way of a Demand Draft, issued in February, 2018. The dispute between the parties is, essentially, whether the appellant had supplied the said machinery to the respondent. According to the respondent, he had not received the machinery for which it had paid in full. Accordingly, the respondent had instituted a suit for the recovery of the said amount.

6. It is the appellant's defence that the machinery was physically handed over to the representatives of the respondent on 12.03.2018, who had thereafter dispatched the same to the respondent's place of business in the State of Bihar.

7. It was the respondent's case before the learned Commercial Court that the machines were not delivered to him. The respondent stated that he had received a bilty (transportation receipt), marked as `A', from the transporter, Nayyar Tempo Transport Service, and had paid the said amount. However, the said bilty was fabricated, and the machines were not delivered.

8. The learned Commercial Court had, in the given context, framed the following issues:

"1. Whether the plaintiff is entitled for recovery of Rs.4,60,200/-alongwith interest from the defendant as alleged? OPP

2. Whether plaintiff has concealed material facts? OPD

3. Whether there is no cause of action in favour of the plaintiff? OPD

4. Whether the suit is not properly verified? OPD

5. Relief."

9. The said issues have been decided in favour of the respondent.

10. Mr. Ashim Vachher, learned counsel appearing for the appellant, has confined the present appeal to assailing the conclusion of the learned Commercial Court that the respondent (plaintiff) was entitled to recover Rs.4,60,200/-along with interest.

11. He has founded the challenge to the impugned judgment essentially on two grounds. Firstly, he submits that it was admitted by the respondent that he had paid the transporter. He submits that in the normal course, there would be no liability to pay the transporter, unless the respondent was delivered possession of the machinery. He submits that this would also indicate that the respondent had received the machinery as nobody would pay a transporter without receiving the goods for which transportation charges are paid.

12. Second, he submits that the respondent's case is fraught with contradictions. He referred to the legal notice dated 06.11.2018 (Ex. PW-1/5) and pointed out that the respondent had visited the appellant's shop several times. However, in his cross- examination, the respondent has stated that his employees/ his staff had not visited the appellant's premises. He also pointed out that in the plaint, the respondent has made averments to the effect that bilty was given by the transporter company, however, in his cross-examination, the respondent (PW-1) had stated that one, Pankaj Patel, had given the transporter receipt (bilty) to him.

13. We have heard the learned counsel at length and have also examined the record.

14. Concededly, no material has been placed on record evidencing that the machines in question had been handed over by the appellant. Although, the appellant claims that it was handed over to th