Sunil Gaur JUDGMENT
Sunil Gaur, J.
1. Impugned order of 4th January, 2005 decrees the suit of respondents for a sum of ` 3,44,769/- with interest at the rate of 6% per annum and dismisses the counter-claim of appellants-defendants. The factual background of this case, as noted in the impugned order, is that appellants-defendants were appointed as Clearing and Forwarding Agents and Stockists of respondents-plaintiffs and on account of appellants-defendants withholding the stock of lubricants, out of outstanding amount of ` 5 lacs odd, security deposit of ` 3 lacs was adjusted and thereafter, suit for recovery of the principal amount of ` 2,32,730/- was instituted on ledger account and interest thereon was also claimed. The stand of appellants-defendants before the trial court was that the lubricants were of substandard quality and were not saleable and the counter-claim was made for refund of security amount with interest and for commission of goods as well as loading and unloading charges. Both the sides had led evidence before the trial court and thereafter, 12 issues were framed. After recording the evidence led by the parties, the trial court had returned the findings in favour of the respondents-plaintiffs and against the appellants-defendants on the counter-claim as well, which are assailed in this appeal.
2. The foremost contention raised by learned counsel for appellants is that there was no privity of contract between appellants and first respondent and so, reliance placed upon the Agreement (Ex. PW 1/3) is of no consequence and trial court has erred in relying upon it. It was pointed out that Form 'F' sent by appellants to second respondent-Thakar Chemicals would not constitute a sale as it was a mere transfer and thus, no liability arises and that trial court has gravely erred in decreeing respondents' suit against the appellants.
3. It was emphatically submitted by learned counsel for appellants that the documents on record do not indicate any sale of goods by respondent-plaintiff to appellants-defendants and it was mere transfer of goods and when respondent-plaintiff wanted to appoint appellants as stockist, appellants had refused and had sought refund of security amount of ` 3 lacs, but respondent had failed to refund the security amount.
4. During the course of hearing, learned counsel for appellants had extensively read the cross-examination of respondents' witness-Sant Lal (PW-1). It was also submitted that there is lack of territorial jurisdiction of Delhi Courts to decide this case as the supply of goods was at Gwalior and no part of cause of action had arisen in Delhi. Reliance was placed by appellants' counsel upon Supreme Court's decision in Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. MANU/SC/1030/2004 : AIR 2005 SC 439 to submit that Sant Lal (PW-1) could not have deposed on behalf of respondent No. 1-Thakar Petrochemicals Ltd. Thus, it was submitted that the impugned judgment deserves to be set aside and suit of respondents ought to be dismissed.
5. To controvert the stand taken on behalf of appellants, it was submitted by learned counsel for respondents that in reply (Ex. PW1/23) to respondents' legal notice, appellants had taken the stand that the goods supplied were defective. It was submitted that appellants had failed to render the accounts and had also failed to return the goods of respondent-plaintiff. Regarding the privity of contract, it was submitted that documents on record clearly indicate that there was communication between the appellants and first respondent as well as second respondent and that first res........