Delhi District Court
Narendra Kumar Gupta vs Chibba Agro Private Limited And Ors on 31 August, 2024
IN THE COURT OF Sh. RAJESH KUMAR GOEL District Judge
(Commercial Court) -02,
Central, Tis Hazari
DLCT010028652019 DLCT010006412020
CS (COMM.) No. 260/2019
CNR No. DLCT010028652019
&
CS (COMM.) No. 04/2020
CNR No. DLCT010006412020
In the matter of :
Narender Kumar Gupta
sole proprietor of M/s R.P Gupta & Sons,
1035, Tilak Bazar,
Delhi 110006 ......Plaintiff/non counter claimant
Versus
1. Chibba Agro Private Ltd,
through its Director/Authorised Signatory,
At; A-103/2,
Near Sanjay Colony,
Okhla Phase-II,
New Delhi 110020
2. Mr. Rajiv Chibba
Director of Chibba Agro Private Limited,
R/o A-60, Sector 17,
Noida-201301, UP.
CS (Comm) 260/2019) & Counter Claim 4/2020
Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors
(plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 1 of 23 )
3. Mr. Kamal Chibba,
Director of Chibba Agro Private Limited,
R/o B-136, Mount Kailash, Delhi 110065
4. Mr. Shiv Kumar Chibba,
Director of Chibba Agro Private Limited,
r/o B-136, Mount Kailash,
Delhi 1100065 ......Defendants/counter claimants
Date of filing of suit : 05.03.2019
Date of filing of counter claim : 07.02.2020
Date of Argument : 30.08.2024
Date of Judgment : 31.08.2024
JUDGMENT
1. Vide this common judgment, I shall dispose of the present suit filed by the plaintiff for recovery of Rs. 5,00,000/-(Rs Five Lakh only) and also the counter claim of Rs 440745/- filed by the defendants .
2. The plaintiff Narender Kumar Gupta has filed the present suit for recovery of Rs. 5,00,000/-(Rs Five Lakh only) with pendentelite and future interest @ 24% against the defendant Chibba Agro Pvt. Ltd & its directors (hereinafter referred to as "main suit"). Defendants while denying their liability have filed the counter claim for recovery of Rs 4,40,745/- with pendentelite and future interest @ 24% ( hereinafter referred to as " counter claim") . The suit filed by the plaintiff Narender Kumar Gupta has been registered as case bearing No. CS(Comm) 260/2019 and the counter claim has been directed to be registered separately by the Ld. Predecessor of this Court as case CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 2 of 23 ) bearing No. CS(Comm) 04/2020.
3. Since, the disputed facts are common, therefore the main suit as well as the counter claim are being decided vide this common judgment.
FACTUAL MATRIX Brief facts of the Main Suit.
4. The plaintiff is the sole proprietor of M/s R.P Gupta and Sons;
defendant no.1 namely M/s Chibba Agro is a Private Ltd Company and defendant no.2 to 4 are its directors; defendants approached the plaintiff for purchase of the goods on credit basis by showing a rosy picture of their business and with the assurance of timely payments; believing the representation made by the defendants, plaintiff sold the goods to the defendants on credit basis vide invoices; as per the books of account maintained by the plaintiff in regular course of business, a sum of Rs 4,22,620/- is due and outstanding against the defendants; when a considerable time has already expired and no payment was made by the defendants, a legal notice dated 18.08.2018 was sent to the defendants; defendants have replied the said notice vide reply dated 28.8.20218 but the outstanding amount was not paid. Hence the present case was filed. Plaintiff is claiming interest @ 24% p.a to the extent of Rs 77,378/- and has claimed a total suit amount of Rs 5,00,000/- ( Rs 4,22,620 /- principle amount + Rs 77,378/- interest).
CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 3 of 23 )
5. Since, the subject matter of the suit is a commercial dispute, therefore, in terms of Section 12A of the Commercial Courts Act, 2015, as amended to date, plaintiff is said to have filed a pre- litigation mediation application before the Delhi Legal Service Authority, Central District, Tis Hazari Courts, Delhi, (in short "DLSA") against the defendants; the DLSA has released a non- starter report dated 28.2.2019.
6. On receipt of the summons, the defendants have filed the written statement. It is denied that an amount of Rs 4,22,620/- is due and outstanding against the defendants. According to the defendants, the plaintiff has been duping and misleading the defendants for the last five years by charging the prices higher than the market prices; plaintiff has inflated the price of the chemical from Rs 2/- per kg to Rs 23/- per kg; plaintiff was supplying the said material @ Rs 68/- per kg to the defendants however same material was available in the market @ Rs 45/- per kg. It is further stated that plaintiff had cheated the defendants from years together and was selling the goods at inflated prices, therefore, the plaintiff is under obligation to refund the excess amount charged for which the defendants are filling the counter claim; defendants have also denied their liability of Rs 4,22,620 /- or interest @ 24 % p.a to the extent of Rs 77,378/- and it is stated that plaintiff is under obligation to compensate the defendants for the damages caused to the defendants.
7. Thereafter, plaintiff filed the replication to the written statement denying the allegations made in the written statement and CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 4 of 23 ) reiterated the facts as mentioned in the plaint.
Brief facts of the Counter Claim
8. It is stated that the parties are carrying the business relationship with each other; since defendant's requirement was not being met by the plaintiff; therefore, the defendants had no other option but to outsource the chemical from other shops; defendants came to know that the plaintiff is charging much higher prices than what was available in the market for the last 10 years; defendants came to know that chemical being supplied to them @ Rs 68/- per kg was available @ Rs 45/- in the market; plaintiff has mislead and cheated the defendants; defendants time and again asked the plaintiff to share the accounts but the plaintiff has not furnished any account statement; the notice dated 18.8.2018 was duly replied by the defendants vide their reply dated 27.8.2018; plaintiff has mislead the defendants by flouting all market norms and has cheated the defendants by charging excess amount, therefore, an amount of Rs 4,40,745/- is recoverable from the plaintiff and details of which has been given in the running account maintained by the defendants. The defendants have also claimed the interest @ 24 % p.a on the aforesaid counter claim amount.
9. Plaintiff filed the written statement to counter claim of the defendants and reiterated the facts as averred in the plaint. One of the preliminary objections taken by the plaintiff is that the present counter claim is beyond the period of limitation and time barred. It is CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 5 of 23 ) stated that whatever order was placed by the defendants, the goods were supplied to them which were duly received by them. It is denied that the plaintiff ever charged higher prices from the defendants. It is stated that the plaintiff has charged the prevailing market price which was agreed to by the defendants before the supply made to the them; there was no agreement between the parties and the plaintiff has charged the market rates from the defendants; plaintiff has not mislead, misrepresented or cheated the defendants as alleged by them. It is prayed that present counter claim being frivolous may kindly be dismissed.
10. The defendants filed the replication denying the allegations made in the written statement filed by the plaintiff and reiterated the facts as mentioned in their counter claim.
11. The record would indicate that both the parties have filed the affidavits of admission and denial of the documents.
FRAMING OF ISSUES
12. Vide order dated 24.09.2022, following issues were framed by the Ld. Predecessor of this court:-
In the Main Suit
1. Whether the plaintiff is entitled for the recovery of the amount of Rs 5,00,000/- as claimed in the plaint? (OPP)
2. Whether the plaintiff has no cause of action to file the suit against the defendants? (OPD)
3. Whether the plaintiff is entitled for the pendente-lite and CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 6 of 23 ) future interest, if so at what rate and for what period?
(OPP)
4. Relief.
In the Counter Claim
1. Whether the counter claimant is entitled for the recovery of the amount of Rs 4,40,745/- as claimed in the counter claim?( OP Counter Claimant)
2. Whether the counter claim is beyond period of limitation and so it is not maintainable ? (OP Non-Counter claimant)
3. Whether the counter claimant is entitled for the pendente-
lite and future interest, if so at what rate and for what period? (OP Counter Claimant)
4. Relief.
RECORDING OF EVIDENCE BY LD LOCAL COMMISSIONER
13. Here it is pertinent to mention that vide order dated 15.5.2023, both the cases were directed to be taken up together by the Ld. Predecessor of this court and Ld. Court Commissioner was appointed to record the evidence of both the parties.
14. Ld. Court Commissioner submitted his report dated 10.08.2023 wherein it is stated that pursuant to the directions of the court, witnesses have been examined and cross examined in the main suit as well as in the counter claim.
15. From the record and the report of the Ld Court Commissioner , it is evident that plaintiff as well as defendants have filed their CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 7 of 23 ) separate affidavits in lieu of their examination-in-chiefs in the main suit and in the counter claim as well.
16. In support of his case the plaintiff has examined himself as PW1. PW1 Narender Kumar Gupta has deposed on the lines of the averments made in the plaint in his evidence filed by way of affidavit Ex.PW1/A. He also relied upon the following documents:-
S.no Document/Particulars Exhibit(s)
1. Carbon copies of invoices ExPW1/1
(colly)
2. True copy of statement of ExPW1/2
accounts
3. Legal Notice dated 18.08.2028 ExPW1/3
alongwith postal and courier (colly)
receipt
4. Reply dated 27.08.2018 ExPW1/4
17. As a Non-counter claimant a similar affidavit has been filed by PW1 Nareder Kumar Gupta in the counter claim also which is ExRW1/A. RW1 Narender Kumar Gupta in the counter claim has relied upon the same documents which have been exhibited in the main suit. PW1/RW1 was cross examined and discharged.
18. Defendant has examined Kamal Chibba (D-2) as DW1. DW1 Kamal Chibba tendered his evidence by way of affidavit ExDW-1/A and has deposed on the lines of stand taken in the written statement filed by the defendant. DW1 was cross examined on behalf of the plaintiff. He also relied upon the following documents:-
CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 8 of 23 ) S.no Document/Particulars Exhibit(s) 1. Written statement ExDW1/1
2. Copy of board of resolution ExDW1/2 dated 23.4.2019 issued by defendant no.1 company
3. All invoices raised by the ExDW1/3 plaintiff to the defendant no.1 4. Running account ExDW1/4
19. As a counter claimant a similar affidavit has been filed by DW1 Kamal Chibba in the counter claim also which is ExCCW-1/A. DW1 Kamal Chibba in the counter claim has relied upon the same documents which have been exhibited in the main suit. Here it is pertinent to mention that non counter claimant, who is the plaintiff in the main suit, has adopted the same cross examination of the defendant's witness (CCW1) as done by the plaintiff in the main suit.
FINAL ARGUMENTS
20. Written synopsis of arguments on behalf of the plaintiff/ non counter claimant as well as defendants/counter claimant have been filed. Both the Ld. Counsels for the parties have argued the matter orally as well.
21. Both the Ld. Counsel for the parties have argued almost on the lines of averments made and stand taken up by them in their respective pleadings. For the sake of brevity the same are not being reproduced and the same shall be considered wherever necessary and relevant.
CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 9 of 23 ) DISCUSSION AND FINDINGS ON THE ISSUES
22. I have perused the record and heard the Ld. Counsels for both the parties.
23. At the very outset I may mention that both the parties have led their evidence by filing an affidavit of evidence. The evidence by way of affidavits have been filed in the main suit as well in the counter claim but the stand taken by them is identical. Their affidavits are basically reproduction of the averments made in their pleadings which is examination- in -chief. A careful perusal of the cross examination of the witnesses particularly of PW1 Narender Kumar Gupta in the main suit would reveal that cross examination has been done on the points which are not in dispute. That being so this court would be referring to the testimonies of the witnesses as per their relevance to the fact in issue only and not otherwise.
24. For the sake of convenience, Firstly, I would be deciding Issue No.2, then Issue No.1, thereafter Issue No.3 and in the last Issue No.4 together in both the cases i.e in the main suit as well as in the counter claim.
Issue No.2 In the main suit:
Whether the plaintiff has no cause of action to file the suit against the defendants? (OPD) CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 10 of 23 )
25. The term "cause of action" as such has not been defined under the Civil Procedure Code but cause of action is essentially a bundle of facts which led to the genesis of the dispute, and to the plaintiff obtaining a right in law to approach the court for legal redress. The cause of action, therefore, necessarily includes an act of the defendant, in the absence of which the suit itself could not possibly exist. There are numerous judgments of the Hon'ble Supreme Court encapsulating this term. It would be apposite to note some of them.
26. In the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366 , it was held that:-
24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit."
27. In Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] Hon'ble Supreme Court held :
"24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."
28. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] Hon'ble Supreme Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 11 of 23 ) required is that a clear right must be made out in the plaint.
29. Adverting to the present case in hand, it is the case of the plaintiff that the plaintiff and defendants were in business relationship; plaintiff had supplied the goods on the credit basis to the defendants vide invoices ExPW1/1 (colly); the plaintiff used to maintain books of account in the regular course of business and as per the statement of account ExPW1/2, defendants are liable to pay an amount of Rs 4,22,620/-. The case of the plaintiff is based upon the invoices as raised by the plaintiff. PW1 Narender Kumar Gupta has deposed on the lines of averments made in the plaint and has proved the Invoices as ExPW1/1 (Colly). According to the defendants, the plaintiff has charged the inflated prices of the goods and has taken excess money from the defendants for which the defendants have filed the counter claim. The only dispute between the parties is whether the plaintiff has charged the excess rate, as claimed by the defendant or not? In my opinion this has created a valid cause of action in favour of the plaintiff to file the present suit against the defendant no.1 company only.
30. Here it is pertinent to mention that the present suit is not maintainable against the defendant no.2 to 4, who are stated to be the directors of the defendant no.1 company, as they are not personally liable for the acts of the defendant no.1 company. It is not the case of the plaintiff that defendant no.2 to 4 were either the guarantors or some fraud has been played by them on the plaintiff. Defendant no.1 being a corporate entity, has a separate legal entity and for the acts of CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 12 of 23 ) the corporate entity the directors cannot be held personally liable, therefore, there is no cause of action as against defendant no.2 to 4.
31. Hence, issue No.2 in the main suit is answered accordingly.
Issue No.2 in the Counter Claim Whether the counter claim is beyond period of limitation and so it is not maintainable ? (OP Non-Counter claimant)
32. Section 3 of the Limitation Act,1963 requires that suits or the proceedings instituted after the prescribed period of limitation shall be dismissed. It is a statutory restriction of the right of action to certain periods of time, after the occurrence of the cause of action beyond which, except in certain specific cases, it will not be allowed.
33. The defendants have filed the present counter claim for recovery of money, for which the limitation is three years from the date when the cause of action arises.
34. In the plaint, it is pleaded that goods were supplied to the defendants vide invoices ExPW1/1(colly). As noted herein above, there is no dispute regarding the supply of the goods and the only objection of the defendants is that the plaintiff has charged the inflated rates of the goods. As per the invoice ExPW1/1 (colly), the last supply of goods was on 14.03.2018. It has come on the record that both the parties were maintaining a regular running account of CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 13 of 23 ) each other. Therefore, the defendants could have raised and objected to the rate of the goods charged by the plaintiff immediately after the last supply which was made vide invoice dated 14.03.2018. That being so, the cause of action arose on 14.03.2018 for filing the counter claim. The counter claim has been filed on 07.02.2020 which is within the period of limitation as prescribed under the law. Issue No.2 in the counter claim is answered accordingly.
Issue No 1 In the main suit:
Whether the plaintiff is entitled for the recovery of the amount of Rs 5,00,000/- as claimed in the plaint?
In the counter claim:
Whether the counter claimant is entitled for the recovery of the amount of Rs 4,40,745/- as claimed in the counter claim?( OP Counter Claimant)
35. Both these issues are interconnected therefore, the same are being decided together. If the pleadings of the parties are put to close scrutiny it would be crystal clear that the dispute between the parties revolves around the rate of the goods/chemicals supplied by the plaintiff to the defendants. As far as placing of order of supply of goods and delivery thereoff is concerned, as such there is no dispute at all. The case of the plaintiff is that he had supplied the goods/ chemicals on credit basis against the invoices and as per the statement of account, an amount of Rs 4,22,620/- is due and outstanding against the defendants. The only objection of the CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 14 of 23 ) defendant taken in the written statement as well as raised by way of counter claim is that the plaintiff had supplied the goods at inflated rates and has thereby cheated the defendants.
36. Now, the moot question for consideration is whether the plaintiff actually supplied the goods at an inflated rate and not at the rate agreed to by the parties, as claimed by the defendants or not?
37. As noted herein above, there is no dispute regarding the supply and delivery of goods to the defendants. Even otherwise also, the plaintiff has been able to establish that the goods in question were supplied to the defendants. In the main suit, the defendants have examined Kamal Chibbha as DW1. He was cross examined by the Ld. Counsel for the plaintiff. The relevant cross examination of DW1 is being reproduced as under:
" Q3. How did you place order with the Plaintiff Firm?
A My staff used to place order telephonically.
Q.4 Which Chemicals you used to purchase from the Plaintiff ?
A SLES, SODA ASH, LABSA, ACID SLURRY.
Q.5 The orders placed by you were supply to you in which mode?
A In different modes at different times.
Q.6 I put it to you that deliveries of goods were made as per the
order placed by you?
A Yes, I agree.
Q.7 I put it to you that all the invoiced goods were either delivered
at Okhla address or at your Himachal Pradesh address?
A Yes, I agree.
Q.8 I put it to you that you received the invoices that are shown to
CS (Comm) 260/2019) & Counter Claim 4/2020
Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors
(plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 15 of 23 )
you right now? (witness is confronted with the Ex.PW-1/1 (Colly) A We have received all the invoices Ex.PW-1/1 (Colly) except invoice no. 1302 dated 14.03.2018 and Invoice no.1010 dated 16.01.2018 about which I have to check.
Q.9 I put it to you that invoice no.1302 dated 14.03.2018 and Invoice no.1010 dated 16.01.2018 are part of Ex.DW-1/3 (Colly)?
A A Yes, I agree.
38. From the aforesaid testimony of DW1 itself, it stands proved that the goods in question were supplied to the defendants. Not only that the defendants have placed on record the photocopies of the invoices alongwith the written statement. The defendant witness DW1 Kamal Chibba has relied upon on the said invoices in his evidence filed by way of affidavit as ExDW1/3 (colly). Some of the invoices are basically photocopies of the invoices ExPW1/1 (colly) filed and proved on behalf of the plaintiff. The plaintiff has admitted the said invoices in the affidavit of admission/denial of the documetns. Meaning thereby, the plaintiff has been able to establish that the goods were supplied to the defendants by the plaintiff vide invoices ExPW1/1(colly) (ExDW1/3 (colly).
39. Further, It has also come on record that as per the statement of account ExPW1/2, part payments have been made by the defendants to the plaintiff. The goods in question have been supplied vide invoices ExPW1/1 (colly) during the period from 06.4.2017 to 14.3.2018. Thereafter, part payments were made against the said invoices. There is nothing on record suggesting that defendants ever CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 16 of 23 ) took any objection to the rate charged by the plaintiff. In the invoice dated 14.3.2018, the rate reflected is Rs 59/- and Rs 80/- per kg and as per invoice dated 16.4.2017 the prices are Rs 85 per kg. Similary, in other invoices also, the rate of the goods supplied to the defendants have been duly reflected in the invoices. The defendants have not objected to any of such invoices. If the plaintiff was charging inflated rates, there was no occasion for the defendants to accept the invoices and to make the part payments. Once the invoices and the delivery of the goods are admitted, in that eventuality, at this stage defendants cannot be allowed to take the plea that the plaintiff had charged the inflated rates.
40. Moreover, no evidence has been adduced by the defendants to establish and prove that the plaintiff was charging inflated rate over and above the rates as prevailing in the market in their business circle. There is nothing on record to show that a particular rate of Rs 45/-per kg, as claimed by the defendants, was prevailing in the market. Even if a particular rate was available in the market but the parties agreed to a transaction at higher to that rate, then as such there is no prohibition or bar of any law that in that eventuality only the market rates would be charged.
41. A contract between the two parties is a combination of an offer and its acceptance. In the present case, pursuant to the purchase orders placed by the defendants, goods were duly supplied to the defendants vide invoices ExPW1/1 (colly) and the same were CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 17 of 23 ) accepted without being raising any objection on the part of the defendants. Thus, there was a concluded contract between the parties regarding the quantity and also the rates of the goods, as mentioned in the invoices. In the given facts and circumstances, the defense as taken by the defendants appears to be a moonshine, which remained unproved. On the contrary, the plaintiff has been able to establish his case to the effect that an amount of Rs 4,22,620/- is due and outstanding against the defendants. That being so, the counter claim, filed by the defendants, is liable to be rejected. Hence, issue no.1 in the main suit is decided in favour of the plaintiff and against the defendants and issue no.1 in the counter claim is answered accordingly.
42. One of the contentions raised by the Ld. Counsel for the defendants is that this court has no jurisdiction to entertain and try the present suit. On the query being raised by this court that why the defendants did not take the said objection of jurisdiction at the initial stage, Ld. Counsel for the defendants by referring to the averments of the written statement submitted that in para 10 of the written statement, defendants have stated that this court has no jurisdiction. Ld. Counsel for the defendants further submitted that during the cross examination of PW1 Narender Kumar Gupta, it has come on the record that the registered address of M/s R.P Gupta & Sons is 1/425/25 Gali No.1 B, Friends Colony Industrial Area, G.T Road, Shahdara, Delhi 110095. He further submitted that the goods were supplied from the Shahdara address to Noida at the address of the CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 18 of 23 ) defendants or at Okhla, therefore, in these circumstances, either the courts situated at Shahdara or Noida would have the jurisdiction but not this Court.
43. While replying to the aforesaid contention of the Ld. Counsel for the defendants, Ld. Counsel for the plaintiff submitted that this court has the jurisdiction to try and entertain the present case. He submitted that the goods were supplied by the plaintiff to the defendants in the year 2017-2018. At that time the address of the plaintiff firm was Tilak Bazar, Delhi which falls within the jurisdiction of this Court. Subsequently, the address of the plaintiff firm was shifted from Tilak Bazar to Shahdara. He has also referred to the cross examination of PW1 and submitted that during the cross examination of PW1 Narender Kumar Gupta in the counter claim, PW1 has explained that earlier the registered address was at 1035, Tilak Bazar, Delhi 110006 and thereafter in the month of December 2018 or early 2019, it was shifted to 1/424/25, Friends Colony, GT Road, Shahdara, Dehi 110095.
44. At the outset, I may mention that the objections regarding the jurisdiction should have been taken by the defendants at the very initial stage. No such preliminary objection has been taken by the defendants. Regarding the averments made in para 10 of the written statement, as referred to by the Ld. Counsel for the defendants is concerned, it is general denial of the jurisdiction. In terms of the proviso attached to the order VIII Rule 5 CPC, mere denial is not CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 19 of 23 ) sufficient. It is the duty of the defendant to tell the court as to where the jurisdiction would lie which is failing in the present case. Further, in the present case, issues were framed by the Ld. Predecessor of this Court vide order dated 24.09.2022 and no issue regarding the jurisdiction was framed. The said order is final and binding upon the parties. Defendants have not objected to the same. Meaning thereby, the objection regarding the jurisdiction, as raised by the Ld. Counsel for the defendants appears to be a afterthought and solely on this ground is liable to be rejected outrightly.
45. Be that as it may, since this issue of jurisdiction has been raised at the final stage, this court deem it appropriate to decide this even otherwise also. It is an admitted fact that the plaintiff supplied the goods to the defendants vide invoices ExPW1/1 (colly) and ExDW1/3 (colly). The invoices ExDW1/3 have been filed by the defendants themselves. The invoices ExPW1/1 (colly) and ExDW1/3(colly) are on the record. In all the aforesaid invoices the address of the plaintiff firm has been mentioned as " 1035, Chowk Tilak Bazar, Delhi", which falls within the jurisdiction of this Court. It is not the case of the defendants that during the year 2017-2018, address of the plaintiff was not Tilak Bazar. Further, it has come on record that during examination of PW1 Narender Kumar Gupta in the counter claim, PW1 has duly explained about the shifting of the registered office of the plaintiff firm from Tilak Bazar to Shahdra. In view of my aforesaid discussion, this court is of the considered opinion, that this court has territorial jurisdiction to adjudicate the CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 20 of 23 ) dispute between the parties.
46. Another contention raised by the Ld. Counsel for the defendants is regarding non compliance of Section 12 (A) of the Commercial Courts Act,2015 by the plaintiff. By referring to the non-starter report dated 28.2.2019, he submitted that the application appears to have been moved on 5.02.2019 and the affidavit filed alongwith the present plaint was got prepared by the plaintiff prior to that. Meaning thereby, the plaint and the affidavit were already got prepared prior to going for Pre-Litigation Mediation. He further submitted that the non starter report states that the directors of the defendant company did not turn up. Ld. Counsel for the plaintiff submitted that before filing the suit he has gone for Pre-Litigation Mediation in terms of the aforesaid provision of law and the compliance of Section 12 (A) of the Commercial Courts Act,2015 stands complied with.
47. As per the mandate of section 12 (A) of the Commercial Courts Act, 2015, plaintiff was supposed to go for pre-lititation mediation. In the present case, plaintiff has admittedly gone for the same and the defendants did not turned up and a non starter report dated 28.02.2019 was released by the Central District Legal Services Authority. Even if the affidavit filed alongwith the present suit was already prepared and ready to be filed, it would not make any difference. There is no as such prohibition that the party cannot prepare the plaint and the other documents before going to the pre-
CS (Comm) 260/2019) & Counter Claim 4/2020 Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors (plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 21 of 23 ) litigation mediation. It is not the case of the defendants that the plaintiff has filed the present suit prior to the release of the non- starter report. This objection, as raised by the Ld. Counsel for the defendant has no base, hence, stands rejected.
Issue No. 3In the main suit Whether the plaintiff is entitled for the pendente-lite and future interest, if so at what rate and for what period?(OPP) In the counter claim Whether the counter claimant is entitled for the pendente-lite and future interest, if so at what rate and for what period? (OP Counter Claimant)
48. While deciding issue no.1, this court has reached at a conclusion that plaintiff has been able to establish his case and the counter claim filed by the defendants is liable to be rejected. In this background, the issue no.3 regarding the interest in the counter claim has become in fructuous and is answered accordingly.
49. Adverting to the issue no.3 in the main suit, the plaintiff has claimed the pendentelite and future interest also at the rate of 24% per annum. Keeping in view the overall facts and circumstances of the case, Court is of the view that same is on higher side. Interest of justice would be met by awarding pendentelite and future interest @ 8 % per annum .
CS (Comm) 260/2019) & Counter Claim 4/2020
Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors
(plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 22 of 23 )
Issue No.4 Relief.
50. In view of my aforesaid discussion, the Counter claim filed by the defendants is hereby dismissed and suit filed by the plaintiff is decreed in favour of plaintiff and against the defendant No 1 company only and following reliefs are granted:-
(i.) Plaintiff is entitled to recover Rs Rs 4,22,620/- (Rs Four lakh Twenty Two Thousand Six Hundred and Twently only from the defendant No 1 company only .
(ii) Plaintiff is also awarded pendentilite and future interest @ 8 % p.a.
(ii) Cost of the suit is also awarded to the plaintiff.
51. Decree sheet be prepared accordingly
52. Copy of this judgment be placed in both the files.
53. Files be consigned to Record Room, after due compliance.
Digitally signed RAJESH by RAJESH
KUMAR KUMAR GOEL
Date: 2024.09.02
GOEL 14:49:01 +0530
(Rajesh Kumar Goel)
District Judge (Commercial)-02
Central, Tis Hazari Courts
31.08.2024
Announced in the Open Court
today i.e: 31.08.2024
CS (Comm) 260/2019) & Counter Claim 4/2020
Narender Kumar Gupta vs M /s Chibba Agro Ptvt Ltd & Ors
(plaintiff/ non counter claiman)t ( Defendant/counter claimant Date of Judgment 31.08.2024 (page no. 23 of 23 )