Delhi District Court
M/S Smart Mart Stores Pvt. Ltd vs (1) M/S Nijwahan Travel Service Pvt. Ltd on 20 October, 2020
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ - 02 (SHAHDARA), KARKARDOOMA COURTS, DELHI
CS No.1179/16
M/s Smart Mart Stores Pvt. Ltd.
Through General Attorney Sh. Rohit Aggarwal
Branch Office at 175, III floor,
F.I.E., Patparganj Industrial Area
Delhi-110092.
Head Office at
B-13, Derawala Nagar,
Near Petrol Pump, Ring Road,
Model Town-II, New Delhi-110009. ........Plaintiff
Versus
(1) M/s Nijwahan Travel Service Pvt. Ltd.
Through its Managing Directors & Directors
(2) Sh. Shyam Nijhawan
Director of defendant no.1
(3) Sh. Arjun Nijhawan
Director of defendant no.1.
All at F-53,
Bhagat Singh Market,
New Delhi-110001.
Also at :
1. 728, Udhyog Vihar, Phase-V
Gurgaon (Haryaa)
2. A1/1, Vasant Vihar,
New Delhi-110057.
3. I Floor, Select City Walk Mall,
Saket, New Delhi-110017. .........Defendants
CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 1 of 18
Date of Filing Suit : 07.07.2014
Date of Reserving Judgment : 08.10.2020
Date of Judgment : 20.10.2020
JUDGMENT
1. The plaintiff has filed the present suit against the defendants for recovery of an amount of Rs. 11,74,429/- along with interest @ 24% per annum.
2. Succinctly put, relevant facts of the case as per plaint are that the plaintiff is a Private Ltd. Company registered under the Indian Companies Act and is a distributor of the electronic goods of various renowned companies. The defendant nos. 2 & 3 are directors of the defendant no.1 and managing as well as controlling its day to day affairs. The defendants had approached the plaintiff for purchase of "Blackberry" mobile phones and other electronic items while representing that they have sound financial capacity and good liquidity. The defendants had placed orders upon the plaintiff for supply of electronic goods and the plaintiff duly supplied the same through various invoices and bills. It is further averred that the defendants had opened mutual and current account with the plaintiff in the normal course of business on the condition that payment of each consignment of goods would be made immediately after its receipt and for any delay, interest @ 24% per annum would be charged from the date of bill, which is also mentioned on the invoices/ bills.
3. The plaintiff has further averred that as per statement of account, amount due towards purchases made by the defendants CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 2 of 18 was Rs. 17,66,143/- as on 22.07.2011, against which, the defendants had handed over a cheque bearing no. 094356 dated 23.07.2011 for Rs. 11,74,429/- drawn on Yes Bank Ltd, Fortune Global Arcade, Sikanderpur, Mehrauli, Gurgaon Road, Gurgaon- 122002, however, said cheque was dishonoured on 23.07.2011. It is further averred that on being informed about the dishonour of aforesaid cheque, the defendants transferred the amount of said cheque through RTGS in the account of the plaintiff and the aforesaid cheque was delivered back to the defendants.
4. The plaintiff has further averred that on 25.10.2011, the defendants came to its office and returned certain goods against which a Credit Note of Rs. 1,02,027/- was issued to the defendants, which was also reflected in the statement of account. It is further averred that on 30.11.2011, the defendants again visited office of the plaintiff and asked the plaintiff to settle their accounts whereupon they were informed that they had to pay interest of Rs.84,000/- approximately for the defaulted period as per agreed terms and conditions. Pursuant thereto, the defendants made request for deduction of the interest, so that they may give previous cheque no. 094356 dated 23.07.2011 for Rs. 11,74,429/- towards full and final settlement of the account as they had not brought the cheque book. It is further averred that keeping in view old relations, the plaintiff accepted the aforesaid cheque for an amount of Rs. 11,74,429/- towards final settlement of accounts, however, the said cheque was dishonoured for the reason of stop payment.
5. The plaintiff further pleaded that it had sent a legal notice CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 3 of 18 dated 09.01.2012 to the defendants but the defendants neither paid the due amount nor replied the legal notice. It is further averred that the plaintiff had also filed a complaint case under Section 138 of Negotiable Instruments Act against the defendants, which is still pending. On these facts, the plaintiff has prayed for a decree of Rs. 11,74,429/- along with interest @ 24% per annum w.e.f. 23.12.2011 till actual realization.
6. In the joint written statement filed on behalf of the defendants, they have taken preliminary objections stating inter-alia that the statement of account filed by the plaintiff is a forged and fabricated document as no amount is due and payable by the defendants to the plaintiff; suit of the plaintiff is liable to be dismissed against defendant nos. 2 and 3 on account of misjoinder of parties as they are neither necessary nor proper parties being directors of the defendant no.1 Company; suit has not been signed, verified and instituted by a competent and authorized person; no part of cause of action arose within the territorial jurisdiction of this Court.
7. On merits, the defendants averred that in March, 2010, the defendant no.1 was appointed by Blackberry India to run and operate a Kiosk at Select City Mall, Saket Delhi and in terms of appointment, defendant no.1 was to sell exclusively the Blackberry products from the said kiosk and the products were to be purchased from the exclusive distributor to be appointed by the Blackberry India and rent for the said kiosk was to be shared by the said Distributor supplying the products at the said Kiosk.
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8. The defendants further averred that in April, 2011, the plaintiff was appointed as an exclusive Distributor on the aforesaid terms and conditions and invoices were being cleared in respect of purchases made from the plaintiff. The defendants admitted issuance of cheque no. 094356 for an amount of Rs. 11,74,429/- on 23.07.2011 in favour of the plaintiff towards invoices and dishonour thereof. It is further averred that upon coming to know about dishonour of cheque on 26.07.2011, the defendant no.1 had requested the plaintiff to present the cheque again but on request of the plaintiff that it was in urgent need of finance, defendant no.1 transferred the amount of cheque in the account of the plaintiff through RTGS on 27.07.2011.
9. The defendants further averred that the plaintiff did not return the aforesaid cheque and informed defendant no.1 that it had destroyed the cheque and defendant no.1 need not worry for the same. It is further averred that as an abundant precaution, the defendant no.1 had requested its banker to stop payment of the said cheque to avoid any further misuse, but the plaintiff presented the aforesaid cheque again in December, 2011 with banker of defendant no.1, which was returned unpaid on 23.12.2011 with the remarks "payment stopped by drawer". The defendants further averred that the plaintiff had sent notice dated 09.01.2012 informing about dishonour of aforesaid cheque, which was duly replied by defendant no.1 whereby the plaintiff was informed that the payment against the said cheque had already been transferred to its account through RTGS on 27.07.2011.
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10. The defendants further averred that statement of account filed by the plaintiff is incorrect as the plaintiff failed to adjust an amount of Rs. 23,615/- in respect of stock returned by the defendants. It is further averred that defendant no.1 had raised a debit note on 19.07.2011 for Rs. 4,96,352/- for the period from April, 2011 to July, 2011 and another debit note of Rs. 3,72,364 on 15.10.2011 for the period from August, 2011 to October, 2011 in respect of adjustment of rent to be shared by the plaintiff but the said debit notes are also not reflected by the plaintiff in statement of account.
11. The defendants have further averred that only a sum of Rs. 2,19,988/- was due and payable by them as on 31.03.2013, which the defendant no.1 is still ready and willing to pay to the plaintiff subject to issuance of "No dues Certificate" by the plaintiff. Hence, the defendants prayed for dismissal of the present suit.
12. Replication to the aforesaid written statement was filed by the plaintiff wherein the plaintiff has reiterated the contents of the plaint as true and correct and denied the contrary averments made in the written statement.
13. Perusal of record shows that vide order dated 22.10.2016, an application under Order XII Rule 6 CPC filed on behalf of the plaintiff was allowed and part decree of Rs. 2,19,988/- was passed in favour of the plaintiff and against defendant no.1 along with interest @ 10% per annum from the date of filing of present suit till realization. Admittedly, the aforesaid amount has been paid by the defendant CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 6 of 18 no.1 to the plaintiff.
14. On the basis of pleadings of the parties, following issues were framed on 18.09.2017 by Ld. Predecessor of this Court as:-
(1) Whether the plaintiff has filed suit on the basis of false and fabricated documents ? OPD (2) Whether the plaintiff is entitled for decree of recovery of Rs. 9,54,441/- along with interest @ 24% pa as claimed in the plaint ? OPP (3) Relief.
15. In order to prove the case, the plaintiff has examined Sh. Rohit Aggarwal, GPA holder as PW-1, who has tendered his evidence by way of affidavit as Ex.PW1/A. PW-1 has relied upon the following documents as:-
Sl No. Description of document Exhibit No. 1 Copy of GPA. PW1/1 2 Copy of Board resolution. PW1/2 3 Original invoices/bills. PW1/3 to PW1/22 4 Certified copy of cheque no. 094356 PW1/23 dated 23.07.2011 for Rs. 11,74,429/-. 5 Certified copy of return memo of PW1/24 cheque. 6 Certified copy of legal notice dated PW1/25 09.01.2012. 7 Certified copies of speed post PW1/26 to PW1/31 receipts. 8 Certified copies of courier receipts. PW1/32 to PW1/36 9 Certified copies of internet generated PW1/37 to PW1/40 reports of postal receipts. 10 Statement of account duly signed and PW1/41 (colly)
CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 7 of 18 stamped by authorised signatory of plaintiff.
11 Certificate u/s 65B of Evidence Act. PW1/42
16. Noticeably, vide order dated 15.02.2020, right of the defendants to lead evidence was closed and matter was posted for final arguments. Heard final arguments and perused the record. Issuewise finding is given in the succeeding paragraphs.
Issue nos.1 & 2 (1) Whether the plaintiff has filed suit on the basis of false and fabricated documents ? OPD (2) Whether the plaintiff is entitled for decree of recovery of Rs. 9,54,441/- along with interest @ 24% pa as claimed in the plaint? OPP
17. Both the aforesaid issues are interconnected and are thus being decided together. Ld. Counsel for the plaintiff submitted that the plaintiff had supplied Blackberry Mobile Phone and other electronic items to the defendants vide various invoices Ex.PW1/3 to Ex.PW1/22 raised from time to time and as per statement of account, an amount of Rs.17,66,143/- was due against the defendants on 22.07.2011, against which, the defendants had handed over a cheque dated 23.07.2011 for Rs. 11,74,429/-, which was dishonoured on presentation. He further submitted that upon apprising the defendants about dishonour of aforesaid cheque, the defendant no. 1 transferred the said amount of cheque through RTGS to account of the plaintiff and cheque was returned to the CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 8 of 18 defendant. It is his further submission that on 25.10.2011, the defendants came to office of the plaintiff and returned some goods against which credit Note of Rs.1,02,027/- was issued. He further submitted that to settle the accounts, the defendants again gave previous cheque of Rs. 11,74,429/- which was dishonoured for the reason of stop payment. It is also his submission that on receipt of admitted amount Rs.2,19,988/-, the plaintiff is still entitled to recover an amount of Rs.9,54,441/- along with interest @ 24% per annum w.e.f. 23.12.2011.
18. On the other side, ld. Counsel for the defendants submitted that on payment of admitted amount of Rs.2,19,988/-, nothing is due and payable to the plaintiff. It is also his submission that the plaintiff did not return the aforesaid cheque despite transfer of cheque amount to the account of the plaintiff through RTGS and as an abundant precaution, the defendant no.1 gave instruction to its bank to stop payment of the said cheque. He contended that the statement of account filed by the plaintiff is incorrect inasmuch as the plaintiff has not shown adjustment of rent for the Kiosk which had to be borne by the plaintiff. He further contended that the plaintiff has also failed to credit amount of debit note for a sum of Rs. 23,615/- in respect of stock returned by defendant no. 1 to the plaintiff. It is also his contention that this court has no territorial jurisdiction to try the present suit and suit has been filed by unauthorized and incompetent person.
19. Before deciding the aforesaid issues, it is necessary to consider preliminary objections raised by the defendants that CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 9 of 18 whether this court has no territorial jurisdiction to try the present suit and whether the suit has not been filed by competent and authorized person.
20. According to the plaintiff, Sh. Rohit Aggarwal GPA Holder of the plaintiff was competent and duly authorized to sign and verify the plaint. In order to prove the same, Sh. Rohit Aggarwal stepped into the witness box as PW-1 and has stated in his evidence by way of affidavit that he is GPA holder of the plaintiff and has been authorised to sign and verify the plaint. He has also relied upon GPA Ex.PW1/1 and Board Resolution Ex.PW1/2. Perusal of Ex.PW1/1 shows that the GPA has been executed by Director of the plaintiff company and vide said GPA, PW1 Sh. Rohit Aggarwal has been authorised to sign, verify, file or receive any complaint, suit, pleadings etc. before the Court of competent jurisdiction. Similarly, Board Resolution Ex.PW1/2 also authorises him to sign, file legal cases and adduce evidence of the company in any Court against defaulted firms/ companies/individuals. During cross-examination, PW1 deposed that he is looking after sales of the company for past many years. He deposed that he does not hold any designation but he is authorized representative of the company. He did not recall whether any document has been placed on record to show that he has been authorized by the company. He volunteered that he looks after day to day affairs of the company and sign all cheques on behalf of the company as authorized signatory and he has been authorized by the Board of Directors. He further testified that GPA Ex.PW1/1 has been executed by Sh. Dharmi Chand Sharma, director of the company in his favour and same has been passed in CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 10 of 18 Board Meeting. He denied the suggestion that Sh. D.C. Sharma has not been authorized by the company to execute GPA Ex.PW1/1. He further denied the suggestion that Board Resolution Ex.PW1/2 has not been validly executed. He further denied the suggestion that Board resolution Ex. PW1/2 is general in nature and does not authorize him to pursue this suit. He further denied the suggestion that the suit is without any authority.
21. Aforesaid testimony of PW1 coupled with documents viz GPA Ex.PW1/1 and Board Resolution Ex.PW1/2 makes it evident that PW1 Sh. Rohit Aggarwal was duly competent and authorised to file and pursue the present suit.
22. Regarding territorial jurisdiction, the plaintiff has stated in para 18 of the plaint that the plaintiff had supplied goods to the defendant from its branch office cum godown at 175, F.I.E. Patparganj, Delhi- 92; most of cheques were delivered by the defendants to the plaintiff at its branch office; goods were also returned by the defendants to the plaintiff at its branch office; final settlement was also arrived at between the parties at its branch office, and therefore, part of cause of action has arisen within territorial jurisdiction of this Court.
23. On the other side, the defendants have stated in corresponding paragraph of reply on merits that the defendants work for gain from their office at Bhagat Singh Market, New Delhi; invoices were issued at the address of defendant no.1 at Select City Mall, Saket, as such, this court has no territorial jurisdiction to try the present suit. The defendants have specifically denied that they had CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 11 of 18 delivered the cheque in question at branch office of the plaintiff at Patparganj, Delhi. It is averred that payments/cheques were delivered by the defendant no.1 to the plaintiff at its office at Bhagat Singh Market, New Delhi; goods were returned by defendant no.1 to the plaintiff either from its office at Bhagat Singh Market, New Delhi or from their Kiosk at Select City Mall, Saket. It is thus averred that no part of cause of action has arisen within territorial jurisdiction of this court, hence, this court has no territorial jurisdiction to try the present suit.
24. Pertinently, the aforesaid averments made in para 18 of the plaint regarding supply of goods from branch office cum godown of the plaintiff at 175, F.I.E. Patparganj, Delhi-92; delivery of cheques at its branch office; return of goods by the defendant to the plaintiff at its branch office; final settlement of accounts at its branch office, makes it clear that part of cause of action has arisen within territorial jurisdiction of this Court. PW-1 Sh. Rohit Aggarwal has reiterated the aforesaid averments in his evidence by way of affidavit Ex. PW-1/A. During cross-examination, PW-1 testified that defendants used to personally visit the plaintiff to collect the material from their warehouse cum office situated at 175, Patparganj Industrial Area, Delhi-110092. He denied the suggestion that the material was supplied to the defendant no. 1 either at Select City Mall or Bhagat Singh Market, Delhi. The testimony of PW-1 regarding supply of goods made from branch office at Patparganj, Delhi remained same in the cross-examination conducted by the defendants. The defendants have not led any evidence in the present suit. Thus, part of cause of action has arisen within territorial jurisdiction of this CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 12 of 18 court. Hence, this court has territorial jurisdiction to try the present suit.
25. Adverting to issue no.1 whereby the defendants have raised a plea that the plaintiff has filed the present suit on the basis of false and fabricated documents, the defendants have not led any evidence in this regard. PW-1 has tendered the original invoices/bills as Ex.PW1/3 to Ex.PW1/22 and statement of account as Ex.PW1/41 (colly) besides other documents. During cross- examination, PW1 has denied the suggestion that statement of account filed by the plaintiff is a forged, fabricated and manipulated document. PW1 testified that statement of account was prepared by their accounts department. He further testified that accounts department was authorized to finalize the statement of account and he was not personally involved in preparation of the same. He further denied the suggestion that the suit was filed on the basis of false and fabricated documents. He further denied the suggestion that since entire amount stood paid by the defendants to the plaintiff, the plaintiff did not present the complaint after change of jurisdiction in or around January, 2015.
26. The invoices Ex PW-1/3 to Ex PW-1/22 bear the stamp of defendant no.1. No suggestion has been given to PW-1 that the said invoices do not bear stamp of defendant no.1 or are forged and fabricated. Pertinently, the defendants have not denied the invoices Ex.PW1/3 to Ex.PW1/22. The defendants' case is predicated on the statement of account filed by them along with the written statement which reflects adjustment of debit notes towards rent of the Kiosk, CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 13 of 18 allegedly payable by the plaintiff, Rs. 23,615/- towards goods allegedly returned to the plaintiff and on adjustment of debit notes, due amount payable to the plaintiff is shown as Rs. 2,19,988/-, which stood paid during pendency of present suit.
27. Indeed, statement of account filed by the defendants has not been proved on record as the defendants failed to lead any evidence in this suit, and thus it cannot be looked into by this Court. The defendants have also not filed any agreement/written document showing that the plaintiff was liable to share rent of Kiosk, which was occupied by defendant no. 1 in Select City Mall, Saket. Mere bald averment by the defendants in the written statement is not suffice in the eyes of law. During cross-examination, PW1 deposed that they were not exclusive distributor of Blackberry India. He further denied the suggestion that liability to pay rent was to be shared equally by the parties. He deposed that plaintiff's relationship with Blackberry was of buyer and seller. He did not recall if there was a distributorship agreement between the plaintiff and Blackberry India. He denied the suggestion that in terms of distributorship agreement, the plaintiff was to share rent with the defendants. He denied the suggestion that debit notes for the period April, 2011 to July, 2011 and for August, 2011 to October, 2011, were issued by the defendants upon the plaintiff for adjustment of cumulative rent of Rs. 8,68,716/-. He did not recall if the plaintiff had received any reconciliation statement from the defendants on 31.03.2012. He further denied the suggestion that in the said reconciliation statement, all rent adjustment has been shown by the defendants. He did not recall if the plaintiff had received any balance CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 14 of 18 confirmation letter from the defendants. He further denied the suggestion that the plaintiff had malafidely not acknowledged the said balance confirmation as well as no dues certificate.
28. Perusal of aforesaid testimony of PW1 envisages that he has not admitted that the plaintiff had to share any rent with the defendants of the kiosk occupied by them. The defendants have not filed any written document showing that the rent of kiosk occupied by the defendant no. 1 was to be shared by the plaintiff. No evidence has been led in this regard. Meaning thereby, the defendants have failed to prove that an amount of Rs. 8,68,716/- was due against the plaintiff towards rent of the aforesaid kiosk which the plaintiff had to allegedly share with defendant no.1.
29. The defendant no.1 has also claimed that the plaintiff failed to give adjustment of an amount of Rs. 23,615/- in the statement of account towards the defective goods returned to the plaintiff. In cross-examination, PW1 has denied the suggestion that the material worth Rs. 23,615/- was returned by the defendants being defective. The defendants have not led any evidence to prove acknowledgement of returned defective goods. The defendants have even not averred the name of person, who had received back the defective goods.
30. In the absence of any evidence led by the defendants, they have failed to prove that the plaintiff was liable to pay an amount of Rs. 8,68,716/- towards alleged due rent of the kiosk and Rs. 23,615/- towards alleged returned defective goods. Rather nothing CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 15 of 18 has been elicited in the cross-examination of PW-1 to rebut the case of the plaintiff that an amount of Rs. 9,54,441/- is due and payable by the defendants.
31. Ld. Counsel for the defendants has also urged that vide order dated 22.10.2016 passed by Ld. Predecessor of this Court on the application under Order 12 Rule 6 CPC, it has been observed in para 8 and 9 that defendant nos. 2 and 3 are not jointly and severally liable for making payment of defendant no.1. He further submitted that the aforesaid order has now become final as it has not been assailed by the parties to the present suit. For better appreciation of aforesaid contention, aforesaid para 8 and 9 of order dated 22.10.2016 are reproduced hereunder as:-
"8. Perusal of the record shows that defendant no.1 in its written statement admits that in terms of the statement of account a sum of Rs. 2,19,988/- only remained due to the plaintiff as on 31.03.2013. Perusal of the record further reveals that defendant no.1 has filed statement of account dated 01.04.2011 to 31.03.2013 which discloses the closing balance as Rupees 2,19,988/-.
Plaintiff has filed instant suit for recovery of Rs.11,74,429/- against a company M/s Nijhawan Travels Services Pvt. Ltd & Ors i.e. defendant no.1 and its Directors i.e. Defendant nos. 2 & 3.
This Court has relied upon the judgment titled as Tristar Consultants vs. M/s V-Customer Services India Pvt. Ltd & Anr. AIR 2007 Delhi 157 wherein Hon'ble High Court has held that :
" It is a settled law that a company is a Juristic person. Therefore, a company has to act through a living human being. Collectively, decisions on behalf of the company, are taken by the Board of Directors of the company. An individual director has no power to act on behalf of company of which he is director, unless there is a specific CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 16 of 18 resolution of Board of Directors of the company giving specific power to him/her, or where the articles of the company confer such empower.
Directors of company have been described as agent, trustees or representatives of the company because of the fact vis a vis the company they act in a fiduciary capacity. They perform act and duties for the benefit of company. Thus, directors are agent of company to the extent they have been authorised to perform certain acts on behalf of the company.
But Directors of a company owned no fiduciary or contractual duties or any other duty of care to third party to deal with the company.
Perusal of Section 230 of the Indian Contract Act, 1872, shows that unless an agent personally binds himself, an agent is not personally liable for contract entered into by him on behalf of his principle."
9. It is pertinent that plaintiff has not pleaded in his plaint that defendant nos. 2 & 3 are personally bind themselves for the act of defendant no.1. Hence, defendant nos. 2 &3 are not jointly and severally liable for making payment of defendant no.1."
32. It is trite from reading of observations made by Ld. Predecessor of this Court that defendant no.1 is only liable to pay the due amount to the plaintiff.
33. The plaintiff has claimed interest @ 24% per annum on the due amount of Rs. 9,54,441/- from 23.12.2011 till actual realization. As per clause 3 of the terms and conditions mentioned on the invoices Ex.PW1/4 to Ex.PW1/22, interest is to be charged @ 24% per annum in case payment is not released within the stipulated time period. Thus, claim of interest @ 24% per annum by the plaintiff is contractual rate of interest. Be that as it may, no reason CS No.1179/16 M/s Smart Mart Store Pvt. Ltd. vs. M/s Nijhawan Travel Ser. P. Ltd &Ors. Page No. 17 of 18 has been given as to why the plaintiff took period of about 2½ years in filing the present suit after sending a notice dated 09.01.2012 Ex. PW1/25 to the defendants. The plaintiff is not allowed to derive benefit for the delay caused in filing the present suit. In the considered opinion of this court, interest of justice would be met by awarding the outstanding amount of Rs. 9,54,441/- with simple interest @ 9% p.a. from 23.12.2011 till the date of actual realization. Issue nos. 1 & 2 are accordingly decided in favour of the plaintiff and against the defendant no.1.
Relief.
34. In view of the above, suit is decreed in favour of the plaintiff and against the defendant no. 1 for a sum of Rs. 9,54,441/- with simple interest @ 9% p.a. from 23.12.2011 till the date of actual realization. Cost of suit is also awarded in favour of the plaintiff and against the defendant no.1. Decree sheet be prepared accordingly.
35. File be consigned to Record Room Digitally signed by MANJUSHA MANJUSHA WADHWA WADHWA Date: 2020.10.20 16:57:28 +0530 Announced through Cisco Webex (Manjusha Wadhwa) on 20th October, 2020. Addl. District Judge-02 (SHD) Karkardooma Courts, Delhi.
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