Delhi District Court
International Combustion India Ltd vs Advance Diamond Tools And Others on 5 April, 2024
1
IN THE COURT OF SH. SANJEEV KUMAR SINGH,
DISTRICT JUDGE (COMMERCIAL COURT),
DIGITAL-04, SOUTH, SAKET COURTS
CS (COMM.) NO.491/2023
CNR No. DLST010081562023
IN THE MATTER OF:
INTERNATIONAL COMBUSTION (INDIA) LTD.
REGD. OFFICE AT:
INFINITY BENCHMARK, 11TH FLOOR,
PLOT NO. G-1, BLOCK-GP, SECTOR-V,
SALT LAKE, KOLKATA-700091.
REGIONAL OFFICE AT:
B-300, AJAYMERU PALRA,
RIICO INDUSTRIAL AREA,
AJMER-305025, RAJASTHAN.
THROUGH AUTHORISED REPRESENTATIVE
MR. ARINDAM CHAKRABORTY.
....... Plaintiff
Versus
1. M/S. ADVANCE DIAMOND TOOLS,
C-1/1691, KH. NO. 1691,
AYA NAGAR, PHASE-4
NEW DELHI-110047
ALSO AT:-
BLOCK-G, HOUSE NO.253/A,
KHASRA NO.1494,
AYA NAGAR, PHASE-6
NEW DELHI-110047
2. MS. ARTI THAUKAR,
PARTNER OF M/S. ADVANCE DIAMOND TOOLS,
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23
2
C-1/1691, KH. NO. 1691,
AYA NAGAR, PHASE-4
NEW DELHI-110047
ALSO AT:-
BLOCK-G, HOUSE NO.253/A,
KHASRA NO.-1494,
AYA NAGAR, PHASE-6
NEW DELHI-110047.
3. MR. BIPUL KUMAR JHA,
PARTNER OF M/S. ADVANCE DIAMOND TOOLS,
C-1/1691, KH. NO. 1691,
AYA NAGAR, PHASE-4
NEW DELHI-110047
ALSO AT:-
BLOCK-G, HOUSE NO.253/A,
KHASRA NO.-1494,
AYA NAGAR, PHASE-6
NEW DELHI-110047.
..... Defendants
Date of Institution : 23.08.2023
Judgment Reserved on : 04.04.2024
Date of Decision : 05.04.2024
EX-PARTE JUDGMENT:
1. This is a suit filed by the plaintiff under The Commercial
Courts Act, 2015 for recovery of Rs.38,60,093/- along with interest @
24% per annum from the date of decree till realization.
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23
3
BRIEF FACTS OF THE CASE ARE AS UNDER:
2. The version of the plaintiff is that it is a company namely M/s. International Combustion (India) Ltd. duly incorporated under the Companies Act, 1956 with the Registrar of Companies, West Bengal and is engaged in the business of manufacturing of Heavy Duty Grinding Systems, Mechanical screens & Feeders, Gear Box & Geared Motor & Dry Mix Mortar and various other equipments. It is further stated the company also has Building Material Division at Ajmer, Rajasthan where it has a Plant for manufacturing and trading in Tile Adhesives, Block Joints, Construction Chemicals etc.
3. The present suit has been filed by plaintiff company through Mr. Arindam Chakraborty, AR of the plaintiff company, who has been duly authorised to file and pursue with the present suit.
4. The case of plaintiff company is that defendant No.1, M/s. Advance Diamond Tools, is a partnership firm of which defendant Nos. 2 & 3 are its partners.
5. It is further stated that the defendant No.1 Firm approached the plaintiff company for purchasing building materials manufactured by the plaintiff Company at its Ajmer Plant in July, 2021; that plaintiff supplied materials to the defendants against the written purchase orders of the defendants and issued invoices in respect of the said purchase orders; that the goods were delivered through transport company namely Bakliwal Cargo Movers on the places of delivery as desired and instructed by the defendants. It is further stated that the International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 4 defendant No.3 has duly acknowledged the receipt of goods by endorsing his signatures and seal of his firm. The details of the same are as under:-
S.NO INVOICE DATE AMOUNT
. NO.
1. 6002464 30/12/2021 RS.659679.00
2. 6002466 30/12/2021 RS.550074.70
3. 6002468 30/12/2021 RS.532849.65
4. 6002484 04/01/2022 RS.1008310.00
5. 6002487 05/01/2022 RS.422587.50
TOTAL AMOUNT RS.31,73,500.85
6. It is further stated that defendants had promised to make the payment of the above supplies within sixty days from the date of issuance of invoices however, failed to abide by their promise and started giving false promises and delayed the payments on one or the other pretext as and when demand was made by the plaintiff about the overdue payments.
7. It is further stated that the defendants had issued six cheques amounting to Rs.31,73,500.85/- towards the over due payments. However, all these six cheques were dishonored when presented for encashment by the plaintiff. The details of the dishonored cheques are as under:-
S.NO. CHEQUE CHEQUE CHEQUE CHEQUE
NO. DATE AMOUNT DISHONORED
DATE
1. 020853 22/08/2022 RS.3,00,000/- 24/08/2022
2. 037751 08/03/2022 RS.422588/- 16/05/2022
3. 037753 05/03/2022 RS.532850/- 16/05/2022
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 5
4. 037755 03/03/2022 RS.659679/- 16/05/2022
5. 037754 04/03/2022 RS.550075/- 16/05/2022
6. 037752 09/03/2022 RS.1008310/- 16/05/2022
8. It is further averred that the plaintiff issued a demand notice dated 24/09/2022 in respect of the dishonored cheque amounting to Rs.3,00,000/- and in response to that the defendants paid the amount in three installments of Rs.1,00,000/- each on 09/11/2022, 08/12/2022 and 09/12/2022; that after adjusting the sum of Rs.3,00,000/- received from the defendants, a sum of Rs.28,73,222.06/- was remaining due from the defendants as per its ledger account. It is further stated that on persistent demands by the plaintiff company, the defendants issued cheque bearing no.037997 dated 06/01/2023 amounting to Rs.28,73,222.06/- towards over due payments, however, the said cheque was also got dishonored due to "insufficient funds; that the plaintiff issued a demand notice dated 07/02/2023 to the defendants by speed post on all the available addresses of defendant no.1 to 3 which were duly received despite that defendant No.1 to 3 failed to pay the amount of the dishonored cheque demanded in the legal notice dated 07/02/2023. It is further stated that pursuant to the same, plaintiff has instituted a complaint case bearing no. NACT/11314/2023 under Section 138 N.I. Act, before the court of Gurugram, Haryana. During the course of proceedings, ld. Counsel for has filed copy of ordersheets of said case which reflects that the same is at the stage of summoning of defendants.
9. It is further stated that the amount of the invoices was payable within 60 days from the date of invoice and in case of International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 6 default, the defendants were liable to pay interest at the rate of 24% per annum. Thus the defendants are liable to pay interest @ 24% per annum as per agreement, custom and usage of the trade.
10. It is further stated that the nature of dispute between the plaintiff and defendant is a Commercial dispute which falls within the ambit and scope of Section-2(1)(c)(i) of the Commercial Courts Act, 2015. The plaintiff invoked the pre-litigation mediation under section- 12A of Commercial Courts Act, 2015 before Delhi State Legal Services Authority, South, Saket Court at New Delhi. However, the same was failed and Non-Starter dated 11.07.2023 was issued. Hence, the present suit.
DEFENDANT IS EX-PARTE
11. In the present case, defendants did not appear before the court to contest the matter despite service through Nazarat Branch on 05.10.2023 through e-mail. All the defendants were also served by way of ordinary process on 05.10.2023. Thus, defendants were proceeded ex-parte vide order dated 09.02.2024 and their right to file WS was closed.
ISSUES:-
12. Vide order dated 09.02.2024 following issues were framed by my Ld. Predecessor, which are as under− International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 7
(i) Whether this court has territorial jurisdiction to entertain and try the present suit? OPP
(ii) Whether the suit is within limitation? OPP
(iii) Whether the suit has been properly valued? OPP
(iv)Whether the plaintiff is entitled to the relief prayed? OPP
(ix) Relief,if any.
EVIDENCE & LIST OF DOCUMENTS:-
13 In order to prove its case, the plaintiff company has led its evidence wherein Sh. Arindam Chakraborty, AR of the plaintiff company was examined and he reiterated the contents of plaint in his affidavit in evidence Ex. PW1/A and has relied upon the following documents:-
S. No. Documents Exhibit
1. Copy of Board Resolution dated Ex. PW1/1 (OSR)
02.02.2023
2. Copy of Certificate of Ex. PW1/2 (OSR)
Incorporation
3. Copy of Aadhar Card of Mark PW1/3 and
Defendants No. 2 and 3 PW1/4
4. Copy of GST Registration Ex. PW1/5
Certificate of Defendant No. 1
5. Postal Receipts of sending the Ex. PW1/6
summons from the Court
6. Postal Receipts of sending the Ex. PW1/7
summons from the Court
7. Postal Receipts of sending the Ex. PW1/8
summons from the Court
8. Corresponding Tracking Report Ex. PW1/9
9. Corresponding Tracking Report Ex. PW1/10
10. Corresponding Tracking Report Ex. PW1/11
11. Certified Copy of Purchase Ex. PW1/12
Order No. 001 dated 24.12.2021
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 8
12. Certified Copy of Invoice No. Ex. PW1/13 6002468
13. Certified Copy of Lorry Receipt Ex. PW1/14 No. 2546
14. Certified Copy of Original Ex. PW1/15 Purchase Order No. 003 dated 24.12.2021
15. Certified Copy of Invoice No. Ex. PW1/16 6002466 dated 30.12.2021
16. Certified Copy of Lorry Receipt Ex. PW1/17 No. 2545
17. Certified Copy of Original Ex. PW1/18 Purchase Order No. 004 dated 24.12.2021
18. Certified Office Copy of Invoice Ex. PW1/19 No. 6002464 dated 30.12.2021
19. Certified Office Copy of Invoice Ex. PW1/20 No. 6002484 dated 04.01.2022
20. Certified Office Copy of Invoice Ex. PW1/21 No. 6002487 dated 05.01.2022
21. Certified Copy of Lorry Receipt Ex. PW1/22 No. 2543
22. Certified Copy of Lorry Receipt Ex. PW1/23 No. 2653
23. Certified Copy of Lorry Receipt Ex. PW1/24 No. 2655
24. Copy of e-mails dated Ex. PW1/25 (colly) 12.07.2022 and 01.07.2022
25. Certificate u/s 65-B of Indian Ex. PW1/26 Evidence Act
26. Copy of Ledger Account of Ex. PW1/27 Defendant No. 1 maintained by the Plaintiff for the period 01.04.2020 to 14.03.2023
27. Certified Copy of cheque Ex. PW1/28 bearing no. 037997 International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 9
28. Certified Copy of deposit memo Ex. PW1/29 receipt
29. Certified Copy of cheque return Ex. PW1/30 memo dated 10.01.2023
30. Certified Copy of Legal Notice Ex. PW1/31 dated 07.02.2023
31. Certified Copy of Original 11 Ex. PW1/32 (colly) postal receipts
32. Certified Copy of Original 11 Ex. PW1/33 (colly) Tracking Reports
33. Certified Copy of return of 04 Ex. PW1/34 (colly) postal envelops
34. Non-Starter Report dated Ex. PW1/35 11.07.2023
35. Fresh Certificate u/s 65-B of Ex. PW1/36 Indian Evidence Act
14. Vide order dated 28.03.2024 an application under Order VII Rule 14 CPC for placing on record additional documents r/w Order 18 Rule 17 CPC was allowed and accordingly, PW-1 i.e. AR of plaintiff was examined and he proved the documents such as Ex.PW-1/37 (GST Profile of defendant no.1) and Ex.PW-1/38 (Certificate under Section 65-B of The Indian Evidence Act).
ARGUMENTS, ANALYSIS & FINDINGS:
15. I have heard the arguments advanced by learned counsel for the plaintiff and also gone through the entire record.
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 10
16. My issue wise findings are as under:-
17. Issue No.1 Whether this Court has territorial jurisdiction to entertain and try the present suit? OPP 17.1 The onus of proving this issue was on the plaintiff.
17.2 This Court has territorial jurisdiction to try the present suit since the defendants work for gain and reside at Aya Nagar, New Delhi, which falls within the territorial jurisdiction of this Court.
17.3 This issue is thus accordingly decided in favour of the plaintiff.
18. Issue No. 2Whether the suit is within limitation ? OPP 18.1 The onus of proving this issue was on the plaintiff.
18.2 The suit has been filed within a period of limitation since defendants have lastly made the payments on 09.11.2022, 08.12.2022 and 09.12.2022 for an amount of Rs.1,00,000/- each and the present suit has been filed on 23.08.2023 a nd as such, the suit has been filed within the limitation period of 03 years.
18.3 This issue is thus accordingly decided in favour of the plaintiff.
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 11 19. Issue No. 3 Whether the suit has been properly valued ? OPP 19.1 The onus of proving this issue was on the plaintiff.
19.2 The suit has been valued at Rs.38,60,093/- which is also the amount claimed by the plaintiff in 'Prayer Clause' in this case. The suit has thus been properly valued.
19.3 The issue is thus accordingly decided in favour of the plaintiff.
20. Issue No.4 Whether the plaintiff is entitled to the relief prayed? OPP 20.1 The onus of proving this issue was on the plaintiff.
20.2 At the very outset, I may observe that the provisions of Section 2 (1) (c) (xviii) of Commercial Courts Act, 2015 are very clear which reads as under:
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 12
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits;
(xviii) agreements for sale of goods or provision of services; (xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
20.3 The provisions of Section 2 (1) (c) (xviii) of Commercial Courts Act as above are very much clear. Sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee may be oral or written. Therefore, the facts which alleged in the plaint comes under the commercial dispute.
20.4 Now, the next question is whether this Court has the pecuniary jurisdiction to adjudicate the matter which is in dispute. The provisions of Section 3 of Commercial Courts Act, 2015 provides that:
Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 13 for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.] 20.5. The Commercial Courts Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of notification, the pecuniary jurisdiction of the commercial courts shall not be less than Rs.
3,00,000/-. In the present case, the claimed amount as mentioned in the plaint is of Rs.38,60,093/- and as such this court is having jurisdiction to adjudicate the matter which is in dispute.
20.6 Perusal of record reveals that before filing of the present suit, the Pre-Institution Mediation was initiated by the plaintiff and the Non- Starter Report dated 11.07.2023 Ex.PW-1/35 shows that notices were issued for 27.04.2023, 24.05.2023, 04.07.2023 and 06.07.2023. It is pertinent to mention that vide letter dated 24.05.2023 defendant agreed to participate in mediation process despite several follow ups no response was received and hence process of mediation was treated as non-starter.
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 14 20.7 The issue under consideration before this Court is whether the plaintiff is entitled to the recovery of Rs.38,60,093/- from the defendants as prayed for in the plaint. The plaintiff has approached this court with the submission that plaintiff is a company duly incorporated under the Companies Act and is engaged in the business of Manufacture of building material. The defendant no.1 firm approached the plaintiff to purchase the said goods/building materials. According to the plaintiff, it supplied the said good and raised invoices against supplied goods. The goods were duly delivered to the defendants however, defendants failed to make the complete payment against outstanding dues and only paid Rs.3,00,000/- on various occassions i.e. on 09.11.2022, 08.12.2022 and 09.12.2022. As per account maintained by the plaintiff, there is an outstanding balance of Rs.38,60,093/- which the defendants failed to pay to the plaintiff despite repeated requests, mails and reminders. The plaintiff sent a legal notice dated 07.02.2023 but defendant failed to make payment of outstanding amount of the plaintiff. Plaintiff in support of its claim has examined Sh. Arindam Chakraborty who has proved the documents on record in support of its claim.
20.8 Here, it is pertinent to note that had the plaintiff not supplied the material/goods to the defendants and the defendants had not received the said material/goods from the plaintiff, they would have appeared and controverted the claim of the plaintiff which they did not do despite service. The entire testimony of PW-1 has gone unrebutted in view of which the claim of the plaintiff has gone undisputed and uncontroverted.
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 15 20.9 It also stands proved that the plaintiff sent a legal notice dated 07.02.2023 as Ex.PW-1/31 and its postal receipts as Ex.PW-1/32 despite that defendants failed to clear outstanding dues.
20.10 Keeping in view the above discussion, I hereby hold that the plaintiff has successfully proved:-
(a) That the plaintiff is entitled to the recovery of principal amount of Rs.38,60,093/- from the defendants jointly and severally.
(b) That in so far as the interest component is concerned, the plaintiff has claimed interest @ 24% per annum which is in my considered opinion is excessive and, therefore, in the interest of justice, the plaintiff is entitled to the recovery of principal amount of Rs.38,60,093 /- along with interest @ 9% per annum from the date of filing of the suit till realization.
(c) The plaintiff shall also be entitled to the costs of the Suit.
20.11 This issue is thus accordingly decided in favour of the plaintiff.
CONCLUSION & RELIEF:
21. In view of my above discussion, I hereby pass an ex parte decree in the sum of Rs.38,60,093/- in favour of the plaintiff and against the defendant. The plaintiff is also held entitled to pendente lite and future interest @ 9% per annum on the decreetal amount of Rs.38,60,093 /- till its realization along with the cost of the present suit.
International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23 16
22. Suit of the plaintiff is accordingly Decreed. Decree Sheet be prepared accordingly.
23. File be consigned to Record Room.
Digitally signed by SANJEEV SANJEEV KUMAR
KUMAR SINGH
Date: 2024.04.05
Announced in the open court SINGH 16:24:22 +0530
on 05.04.2024 (Sanjeev Kumar Singh)
District Judge (Commercial Court)(Digital)-04, South/Saket/New Delhi/05.04.2024 International Combustion India Ltd. Vs. Advance Diamond Tools & Ors. CS (Comm.) No.491/23