M/S STAR PAPER MILLS LIMITEDversusM/S BEHARILAL MADANLAL JAIPURIA LTD. & ORS.

1074                       [2021]
                SUPREME COURT     9 S.C.R. 1074
                               REPORTS                     [2021] 9 S.C.R.


 A                    M/S STAR PAPER MILLS LIMITED
                                        v.
           M/S BEHARILAL MADANLAL JAIPURIA LTD. & ORS.
                         (Civil Appeal No. 4102 of 2013)
 B                            DECEMBER 16, 2021
         [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
              Suit – Recovery suit – Respondent was a wholesale dealer of
       the appellant-company and was purchasing paper from the appellant
       – Huge stocks lifted by the respondent – Payments defaulted – Suit
 C
       for recovery filed by appellant – Decreed by Single Bench – Order
       set aside by Division Bench – On appeal, held: Respondents alleged
       that the bills were raised on the basis of fictitious and fraudulent
       transactions however, failed to discharge the onus of proof –
       Invoices, debit note and ST-1 Form were issued only after the receipt
 D     of goods – Receipt of goods is proved by such documents which
       were stamped and signed by the respondents – Respondents’ stand
       that the documents were signed under duress is untenable – Order
       of Division Bench set aside – Suit decreed – Delhi Sales Tax Act,
       1975 – ss.4(2)(a)(v), 14 – Delhi Sales Tax Rules, 1975 – r.7.
 E          Delhi Sales Tax Act, 1975 – s.4(2)(a)(v) – Scope of – Discussed
       – Delhi Sales Tax Rules, 1975 – r.7.
            Deeds and Documents – Examination of author of a document
       – When not required – Discussed – Suit.
             Deeds and Documents – Documents maintained in the regular
 F     course of business – Proof of – Held: It is not necessary for the
       witness to be signatory of such documents or that such documents
       were executed in his presence – Suit.
             Allowing the appeal, the Court

 G           HELD: 1.1 The witness of the respondent has admitted his
       signatures on the ST-1 Form, invoice and debit notes. The
       respondent company denied the signatures of its representative
       only on the Delivery Challan. The respondents alleged that the
       alleged bills have been raised on the basis of fictitious and
       fraudulent transactions. Since such stand was of the respondents,
 H
                                       1074
    M/S STAR PAPER MILLS LIMITED v. M/S BEHARILAL                       1075
           MADANLAL JAIPURIA LTD. & ORS.

the onus of proof of such issue was on the respondents. It is the       A
respondents who have alleged the transaction as fraudulent.
The onus of proof was on the respondents but the respondents
have failed to discharge the same. [Paras 12, 13 and 15]
[1082-A-C, G-H]
       1.2 The reasoning of the Division Bench that the witness         B
examined by the appellant was not in Delhi when the transactions
took place is wholly irrelevant to determine whether the invoices,
debit notes and ST-1 Form are proved or not. It is not a case of
mere exhibition of documents. Such documents were proved by
a witness as such documents were kept by the appellant in their
ordinary course of business. All these documents are stamped            C
and counter-signed by the representatives of the respondents.
Such documents have come from the records of the appellant. It
is not necessary for the witness to be signatory of such documents
or such documents were executed in his presence. The
documents were maintained in the regular course of business of          D
the appellant. There is no dispute about the maintenance and
production of such documents. The account books were not
produced by the respondents to discharge the onus on them.
Therefore, the adverse inference had to be drawn against the
respondents rather than against the appellant who are not relying
upon the entries in the account books alone to maintain suit but        E
reliance is on the invoices, debit note as well as ST-1 Form which
had been issued only after the receipt of goods. Though the
respondents have denied the receipt of goods but the receipt of
goods is proved by numerous documents stamped and signed by
the respondents. [Paras 14, 16][1082-D-F; 1083-C-E]                     F
      2. Section 4(2)(a)(v) of the Delhi Sales Tax Act, 1975
excludes the sale made to the registered dealer from the taxable
turnover. Rule 7 of the Delhi Sales Tax Rules, 1975 allows the
dealer to claim deduction from his turnover if he files a declaration
in ST-1 Form duly filled in and signed by the purchasing dealer or      G
a person authorized by him in writing. The respondents have
admitted that no sales tax is payable by a dealer to a dealer. By
necessary implication, the respondents are admitting the
appellant to be a dealer as also the respondents to be dealer
under the Delhi Sales Tax Act, 1975. It is only on account of
                                                                        H
1076            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


 A     sales made by a dealer to a dealer that the sales tax is not payable
       as the incidence of payment of tax would be when the goods are
       sold to a consumer. The respondents as wholesaler, were getting
       the benefit of trade discount, which is an agreed term of sale.
       [Paras 17-19][1083-E; 1084-C-D, F-H]
 B           3. The High Court, in the impugned judgment erred in
       holding that the appellant had not examined the author of the
       documents. Such reasoning is absolutely erroneous as in the
       written statement, the respondents had not denied their
       signatures on the documents referred to by the appellant but
       pleaded duress in executing of these large number of documents.
 C     The respondent had led no evidence in respect of fraud or duress
       apart from self-serving statement. The consignment of goods was
       sent from the month of November 1985 to January 1986. The
       respondent had signed large number of documents during this
       period. However, no complaint was made to any person or
 D     authority or even to the plaintiff. Such a stand is wholly bereft of
       any truth and is thus rejected. Large number of documents such
       as invoices, debit notes and ST-1 Form spread over 3 months is
       unbelievable to be an exercise of duress. The order of the Division
       Bench of the High Court dated 28.5.2012 is set aside. The suit is
       decreed. [Paras 20-22][1084-H; 1085-A-C, E]
 E
             Subhra Mukherjee and Another v. Bharat Coking Coal
             Ltd. and Others (2000) 3 SCC 312: 2000 (3) JT 55;
             Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434 :
             [1999] 5 Suppl. SCR 24 – held inapplicable.

 F                            Case Law Reference
       [1999] 5 Suppl. SCR 24          held inapplicable      Para 11
             CIVIL APPELLATE JURISDICTION : Civil Appeal No.4102
       of 2013.
             From the Judgment and Order dated 28.05.2012 of the High Court
 G
       of Delhi at New Delhi in RFA (OS) No.26 of 2008.
             Vijay Hansaria, Sr. Adv., Gaurav Jain, Ms. Abha Jain, Advs. for
       the Appellant.
             Rajesh Yadav, Sr. Adv., Anuj P. Agarwala, Nishant Anand, Pramod
 H     B. Agrawala, Advs. for the Respondents.
    M/S STAR PAPER MILLS LIMITED v. M/S BEHARILAL                                1077
           MADANLAL JAIPURIA LTD. & ORS.

       The Judgment of the Court was delivered by                                A
       HEMANT GUPTA, J.
       1. The present appeal is directed against an order passed in an
intra-court appeal by the Division Bench of the High Court of Delhi at
New Delhi on 28.5.2012 whereby the judgment and decree passed by
the learned Single Bench of the High Court was set aside and the suit            B
filed by the appellant-plaintiff was dismissed. The learned Single Bench
decreed the suit of the appellant for a sum of Rs.96,41,765.31 along with
simple interest @ 15% p.a. from the date of institution of the suit i.e.,
5.10.1987, till the date of payment, on the principal amount of
Rs.71,82,266/-.                                                                  C
       2. The appellant filed a suit for recovery of Rs.96,41,765.31 on
the ground that appellant is a manufacturer of various varieties of Kraft,
writing and printing papers which are sold to customers through
wholesalers. The appellant sellsits products through direct payment or
payment against hundies payable on due date with the bank by such                D
wholesalers. Respondent-defendant No. 1 was a wholesale dealer of
the appellant company in the territory of Delhi since 1984 and was
purchasing paper from the Delhi Sales Office of the appellant as well as
from its mills situated at Saharanpur. The tentative stock lifted by
respondent no. 1 was worth Rs.15-20 lakhs per month. The respondents
were making regular payments and were enjoying immense confidence                E
of the appellant. The appellant further explained the terms of the payment
in the plaint filed. The terms of the sale of paper to respondent No. 1
were stated to be through limited credit of 45-60 days as well as through
hundi documents. Fifteen days interest-free credit facility from the date
of delivery was available and thereafter interest was charged. Any default       F
of payment carried interest @ 21 % p.a. from the date of delivery till the
date of payment and further penal interest @ 3 %.
      3. The Respondent No. 1 lifted huge stocks in the month of
November 1985 to January, 1986 but did not make the due payments.
Even some of the hundi documents were dishonored. The appellant                  G
supplied goods worth Rs.72,27,079/- by 189 consignments against the
term of direct payment. The goods were duly received by respondent
no.1 with the signatures of respondent no. 2, its director, but they defaulted
in making the payments. The respondents made a payment of
Rs.2,99,480/- for 9 consignments by hundi documents but the hundi
                                                                                 H
1078             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


 A     documents were also returned by the bank unpaid. It was pointed out
       that since respondent No. 1 was a wholesaler, they were getting trade
       discount of Rs.700-750 per ton. Thus, the appellant claimed the following
       amount:
              Principal amount                              Rs.71,82,266.00
 B            Interest on outstanding Bills                 Rs.24,59,499.31
              Total                                         Rs.96,41,765.31
               4. In the written statement, it was alleged that the appellant
       company was owned and controlled by the family of Bajoria headed by
 C     S.S. Bajoria prior to May 1986. The said family was closely connected
       to the respondents. The appellant installed a paper manufacturing mill at
       Saharanpur in 1935-36 and offered dealership to the respondents for
       Delhi and Bombay markets. The dealership of Bombay was given up in
       or about 1955-56. The management of the appellant changed in May,
       1986. It was asserted by the respondents that the appellant has not
 D     rendered true and proper receipts and a sum of Rs.45 lakhs are due
       from the appellant. It was also alleged that the bills raised by the appellant
       are based on fictitious transactions which are tainted with fraud, deceit
       and circumvention of law. Such transactions are therefore against public
       policy and void ab initio. The respondents further alleged that in 1972-
 E     73, the Managing Director of the appellant approached Shri Nagarmal
       Jaipuria and suggested that therespondents should receive certain bills
       drawn on them inasmuch as the appellant intended to sell certain quality
       of paper in open market at prices higher than the Mill price. The goods
       could not be taken out from the Mill unless accepted by one of the
       wholesalers or dealers. At the threat of termination of the wholesaler
 F     agreement, the respondents agreed for such proposal. The respondents
       averred as under:
              “10. Near about the same time, the plaintiff, in addition to the
              selling of papers in cash in open market, also indulged in tax evasion
              the sales tax on direct sale from Saharanpur was 4%. The sales
 G            tax if the goods were transported to Delhi Depot of the plaintiff
              and sold from the said depot was Nil. Thus, there was a net tax
              saving of the value of the goods sold in the open market at Delhi.
              There is no sales tax leviable on the sale of paper from the Dealer
              to Dealer at Delhi. If the sales were made directly from
              Saharanpur the Sales Tax leviable was 4%. The dealer to dealer
 H
  M/S STAR PAPER MILLS LIMITED v. M/S BEHARILAL                                 1079
 MADANLAL JAIPURIA LTD. & ORS. [HEMANT GUPTA, J.]

       transaction of sale did not attract payment of anysales tax              A
       whatsoever at Delhi. The Plaintiff in addition to making profit by
       sale of paper in the open market at the price higher than the Mill
       price also wanted to pocket the sales tax which would have
       ordinarily been payable had the sales been made from their Mills
       at Saharnapur. This whole ingenious scheme and device was
                                                                                B
       tainted with fraud and the Jaipuria under undue influence and
       coercion were made to submit to the illegal transactions which
       were indulged in by the Bajorias/Plaintiff.”
       5. One of the issues framed after completion of pleadings was
whether the alleged bills forming the claim in the suits have been raised
on the basis of the fictitious and fraudulent transactions. The suit has        C
been dismissed by the Division Bench on such issue inter-alia on the
ground that documents had not been proved by summoning the person,
who had issued such large number of documents (Ex-P1 – Ex-P976).
       6. The appellant filed an affidavit of Shri A.S. Bhargava, Retainer,
formerly General Manager-Management Services on 8.12.2003. In such              D
affidavit, the appellant has produced 976 documents including copies of
all the invoices, debit notes, delivery challan, ST-1 Form, interest debit
notes, letter of the respondents, credit notes and the statement of accounts.
All the invoices are stamped and signed by the respondents. The appellant
also produced ST-1 Form in respect of each of the invoices stamped and
signed by respondents. In the cross-examination, the witness stated that        E
in case of sale transaction by the company/manufacturer with any
wholesaler, the sales tax can be avoided against ST-1 Form. However, if
the manufacturer would sell these goods directly to any retailer or
consumer, sales tax would be payable. He further deposed that he has
not placed on record the copies of the books of accounts and that the           F
Bills-cum-Challans have not been acknowledged by the respondentsin
their presence. He stated that the respondentsused to lift the material
from their godown. He further deposed that sales tax number is given
on the top of the invoices though he could not say if the sales tax number
is not of Delhi but of Calcutta. He further stated that the transactions in
the suit were from Delhi and no transaction took place from Saharanpur.         G
The suggestion that the suit transactions are fictitious was denied.
       7. The respondents produced an affidavit of Shri R.C. Jaipuria in
evidence. It was stated that the books of accounts were not produced
for the reason that the office of the respondents was reconstructed during
the period 1993-1995 when there were torrential rains and the records           H
1080            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


 A     kept on the open roof got spoiled and eaten by pests. Though, it is averred
       that income tax, sales tax returns of these years have been finalized on
       the basis of destroyed books of accounts. The respondents have denied
       the receipt of goods and produced documents Ex. DW-1/1 to Ex.DW-1/
       5. He accepted his signatures on the invoices, ST-1 Form and the debit
       notes but denied signatures on the delivery challans as not of any of the
 B
       employee of the respondents. It was stated that signatures got signed
       from him on large number of documents under pressure and duress in
       the circumstances stated in his affidavit. He admitted that books of
       accounts pertaining to transactions in question have not been filed. He
       denied that the respondents had not paid a sum of Rs.2,72,08,398.29 to
 C     the plaintiff between the period 1.5.1985 to 19.3.1987. In respect of
       signatures on ST-1 Form, he deposed that he used to sign such forms
       under duress and bear his signatures.
              8. On the basis of the evidence led, the learned Single Bench
       decreed the suit. However, the first appeal was accepted inter alia on
 D     the ground that the appellant has failed to prove that it was registered as
       a dealer with the Sales Tax Authorities in Delhi and it failed to prove
       having any godown in Delhi. Since the appellant has failed to prove that
       it was a registered dealer, it could not effect any sale of paper at Delhi
       without paying Central Sales Tax. The Division Bench of the High Court
       held as under:
 E            “31. We may summarize. The respondent No.1 has failed to prove
              that it was registered as a dealer with the Sales Tax Authorities in
              Delhi. It failed to prove having any godown at Delhi. As per the
              laws applicable to Sales Tax, unless respondent No.1 proved being
              a dealer registered at Delhi, it could not effect any sale of paper
 F            at Delhi without paying Central Sales Tax. It is obvious that
              respondent No.1 surreptitiously removed its goods from its mill at
              Saharanpur not under the cover of the invoices raised in favour of
              the appellant, for the reason these invoices show an intra-city
              sale and not an inter-city sale. The respondent No.1 has not led
              any evidence with respect to goods receipts pertaining to
 G            movement of goods from its mill at Saharanpur to Delhi and much
              less shown delivery by any transporter to the appellant. The
              aforesaid has been totally ignored by the learned Single Judge
              and therefrom it is apparent that the sales were fictitious i.e.
              appellant was shown as a name-lender. Respondent No.1 managed
 H            to cheat the revenue.”
     M/S STAR PAPER MILLS LIMITED v. M/S BEHARILAL                              1081
    MADANLAL JAIPURIA LTD. & ORS. [HEMANT GUPTA, J.]

        9. Learned counsel for the appellant argued that the finding of the     A
High Court is patently erroneous as the respondents have not denied
that the appellant is a dealer in the State of Delhi which is evident from
Para 10 of the written statement reproduced above. It was further pointed
out that the respondents have not disputed the registration of the appellant
in the written statement nor any issue was framed about the appellant
                                                                                B
being a registered dealer in Delhi. Therefore, the High Court had made
out a new case for the respondents when such case was not even referred
to in the written statement filed.
       10. The appellant had filed a registration certificate as the reseller
dealer in Delhi as Annexure P/12 along with an application to produce
such certificate. The said certificate shows that the appellant was             C
registered as a Dealer under Section 14 of the Delhi Sales Tax Act,
1975. The nature of business being Reselling of Paper and Boards only.
There is a mention of godown in the registration certificate as well.
       11. Learned counsel for the respondents supported the judgment
of the learned Division Bench and relied upon judgment of this Court            D
reported as Subhra Mukherjee and Another v. Bharat Coking Coal
Ltd. and Others1 to contend that the onus of proof whether transactions
were genuine and bonafide has to be discharged by the appellant. Learned
counsel for the respondents also relied upon the judgment of this Court
reported as Ishwar Dass Jain v. Sohan Lal2 to contend that the appellant        E
has not produced account books but only extracts which are not admissible
in evidence and hence suit was rightly dismissed by the High Court in
appeal.
       12. We have heard learned counsel for the parties and find that
the Division Bench of the High Court has gravely erred in law in accepting      F
the appeal of the respondents on wholly erroneous and untenable grounds.
Each of the invoices produced bears the registration No. S.T. No. 36/
102499/08/84 and also bears the stamp and signatures of the Managing
Director/ Director of the respondents. Apart from such invoice, the
appellant has proved the debit note which has also been stamped and
                                                                                G
signed by the Managing Director/ Director. The ST-1 Form also bears
the stamp and signature of the Director of the respondents. Such ST-1
Form bears the invoice number and the date as well as the value of the
1
    (2000) 3 SCC 312
2
    (2000) 1 SCC 434
                                                                                H
1082             SUPREME COURT REPORTS                             [2021] 9 S.C.R.


 A     goods. The witness of the respondent has admitted his signatures on the
       ST-1 Form, invoice and debit notes. The respondent company has only
       denied the signatures of its representative only on the Delivery Challan.
              13. The judgments referred to by the learned counsel for the
       respondents are not applicable in the present case. The respondents
 B     have alleged that the alleged bills have been raised on the basis of fictitious
       and fraudulent transactions. Since such stand was of the respondents,
       the onus of proof of such issue was on the respondents. Such issue
       necessarily implies that the raising of the invoices is not in dispute but it
       was alleged that such bills are fictitious and fraudulent. The onus of
       proof of issue no. 4, whether the defendant no.1 accepted the bills without
 C
       actual delivery of goods to it is also upon the respondents as it is their
       stand that the bills were accepted without actual delivery of goods.
              14. The reasoning of the Division Bench that the witness examined
       by the appellant was not in Delhi when the transactions took place is
       wholly irrelevant to determine whether the invoices, debit notes and ST-
 D
       1 Form are proved or not. It is not a case of mere exhibition of documents.
       Such documents were proved by a witness as such documents were
       kept by the appellant in their ordinary course of business. All these
       documents are stamped and counter-signed by the representatives of
       the respondents. Such documents have come from the records of the
 E     appellant. It is not necessary for the witness to be signatory of such
       documents or such documents were executed in his presence. The
       documents were maintained in the regular course of business of the
       appellant. In fact there is no dispute about the maintenance and production
       of such documents. The witness of the respondent has admitted the
       execution of all the invoices, debit notes and ST-1 Form which bear their
 F
       stamp and also the signatures of the authorized representative. Therefore,
       the reasoning given by the High Court is bereft of any merit.
              15. The judgments referred to by the learned counsel for the
       respondents are not applicable to the facts of the present case at all. In
       Subhra Mukherjee, it was held that a person who attacks a transaction
 G     as sham, bogus and fictitious must prove the same. It is the respondent,
       who have alleged the transaction as fraudulent. In fact, in the aforesaid
       case, the transaction of sale was found to be bogus and appeal of the
       alleged purchasers was dismissed. Thus, the onus of proof was on the
       respondents but the respondents have failed to discharge the same.
 H
  M/S STAR PAPER MILLS LIMITED v. M/S BEHARILAL                              1083
 MADANLAL JAIPURIA LTD. & ORS. [HEMANT GUPTA, J.]

       16. In Ishwar Dass Jain, it was suit for redemption of usufructuary   A
mortgagee which was dismissed by the High Court. The appellant before
this Court was the plaintiff. The defence of the respondent was that
there was no relationship of mortgagor and mortgagee between the
parties but that the relationship was as landlord and tenant. It was the
defendant who has not produced his books of accounts to show that he
                                                                             B
was paying various amounts as rent to the appellant every month. In
these circumstances, the extract of accounts produced by the respondent
was found to be unbelievable and the suit decreed. In fact,the respondents
in the written statement itself denied that they do not have the account
books as they got damaged in rain and eaten by pests when they were
kept on the roof of a building during the process of reconstruction. Such    C
defence on the face of it appears to be made up defence. The account
books were not produced by the respondents to discharge the onus on
them. Therefore, the adverse inference had to be drawn against the
respondents rather than against the appellant who are not relying upon
the entries in the account books alone to maintain suit but reliance is on
                                                                             D
the invoices, debit note as well as ST-1 Form which had been issued
only after the receipt of goods. Though the respondents have denied the
receipt of goods but the receipt of goods is proved by numerous
documents stamped and signed by the respondents.
       17. Section 4(2)(a)(v) of the Delhi Sales Tax Act, 1975 excludes
the sale made to the registered dealer from the taxable turnover, which      E
reads thus:
      “(2) For the purposes of this Act, “taxable turnover” means that
      part of a dealer’s turnover during the prescribed period in any
      year which remains after deducting therefrom,—
                                                                             F
      (a) his turnover during that period on—
      (i) sale of goods ……………………….
      xxx                                          xxx
      (v) sale to a registered dealer-
                                                                             G
      (A) of goods of the class or classes specified in the certificate of
      registration of such dealer, as being intended for use by him as
      raw materials in the manufacture in Delhi of any goods, other
      than goods specified in the Third Schedule or newspapers,-
                                                                             H
1084             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


 A           (1) for sale by him inside Delhi; or
             (2) for sale by him in the course of inter-State, trade or commerce,
             being a sale occasioning, or effected by transfer of documents of
             title to such goods during the movement of such goods from Delhi;
             or
 B           (3) for sale by him in the course of export outside India being a
             sale occasioning the movement of such goods from Delhi, or a
             sale effected by transfer or documents of title to such goods
             effected during the movement of such goods from Delhi, to place
             outside India and after the goods have crossed the customs frontiers
 C           of India; or”
              18. Rule 7 of the Delhi Sales Tax Rules, 1975 allows the dealer to
       claim deduction from his turnover if he files a declaration in ST-1 Form
       duly filled in and signed by the purchasing dealer or a person authorized
       by him in writing. The said Rule reads thus:
 D           “7. Conditions subject to which a dealer may claim deduction from
             his turnover on account of sales to registered dealers. –
             (1) A dealer who wishes to deduct from his turnover the amount
             in respect of sales on the ground that he is entitled to make such
             deduction under the provisions of sub-clause (v) of clause (a) of
 E           sub-section (2) of section 4, shall produce-
             (a) copies of the relevant cash memos or bills according at the
             sales are cash sales or sales on credit; and
             (b) a declaration in Form ST-1 duly filled in and signed by the
 F           purchasing dealer or a person authorised by him in writing:”
              19. The respondents have admitted that no sales tax is payable by
       a dealer to a dealer. By necessary implication, the respondents are
       admitting the appellant to be a dealer as also the respondents to be dealer
       under the Delhi Sales Tax Act, 1975. It is only on account of sales made
       by a dealer to a dealer that the sales tax is not be payable as the incidence
 G
       of payment of tax would be when the goods are sold to a consumer. The
       respondents as wholesaler, were getting the benefit of trade discount,
       which is an agreed term of sale.
              20. The High Court, in the impugned judgment erred in holding
       that the appellant had not examined the author of the documents. Such
 H
  M/S STAR PAPER MILLS LIMITED v. M/S BEHARILAL                                   1085
 MADANLAL JAIPURIA LTD. & ORS. [HEMANT GUPTA, J.]

reasoning is absolutely erroneous as in the written statement, the                A
respondents had not denied their signatures on the documents referred
to by the appellant but pleaded duress in executing of these large number
of documents. The witness examined by respondent no.1 in his cross
examination admitted his signature or that of the representative of
company on invoices, debit notes and on ST-1 Form. The respondent
                                                                                  B
had led no evidence in respect of fraud or duress apart from self-serving
statement. The consignment of goods was sent from the month of
November 1985 to January 1986. The respondent had signed large number
of documents during this period. However, no complaint was made to
any person or authority or even to the plaintiff. It is a denial of receipt of
goods without any basis raised only in the written statement filed. Such          C
stand is wholly bereft of any truth and is thus rejected.
       21. The debit notes stamped and signed by the respondents were
in respect of trade discount on the wholesale price mentioned in the
invoice. Having accepted the trade discount, which is evident from the
stamp and signatures not only on the debit notes but also on the invoice          D
as well as on ST-1 Form, shows that the goods were actually lifted by
the respondents for which payment has not been made. The respondents
have taken up wholly untenable ground that the documents were signed
under duress. Large number of documents such as invoices, debit notes
and ST-1 Form spread over 3 months is unbelievable to be an exercise
of duress. The stand of the respondents is wholly untenable and                   E
unjustifiable in law and is only to defeat the legitimate claim raised by
the appellant. The High Court in the appeal has gravely erred in setting
aside the reasoned order of the learned Single Bench on the grounds
which were not even raised by the respondents.
      22. In view of the said fact, the order of the Division Bench of the        F
High Court dated 28.5.2012 is set aside. The suit is decreed for recovery
of Rs.96,41,765.31 and future interest on the principal sum of
Rs.71,82,266/- @ 9% p.a. from the date of filing of the suit till realisation.
The appeal is thus hereby allowed.
                                                                                  G
Divya Pandey                                                    Appeal allowed.




                                                                                  H