Delhi District Court
M/S Super Hoze Industries P.Ltd vs Piare Lal on 29 November, 2024
DLCT010024452019
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) -01 : CENTRAL, TIS HAZARI COURTS,
DELHI
CS (Com.) No. 225/2019
M/s. Super Hoze Industries Private Limited,
Having its Registered Office at :
4th Floor, Punjabi Bhawan,
10-Rouse Avenue, New Delhi.
Through Manager :
Sh. Rajnish Kumar. ..... Plaintiff.
Versus
1. Sh. Piare Lal,
Proprietor of :
M/s. Satya & Co.,
248/11, Purana Bazar,
Sunder Nagar, Himachal Pradesh-175018.
2. Sh. Vinod Rai,
248/11, Purana Bazar,
Sunder Nagar, Himachal Pradesh-175018. .... Defendants.
Suit (Com.) No. 225/2019 Page No. 1 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
Date of institution : 22.02.2019
Date of reserving Judgment : 22.11.2024
Date of decision : 29.11.2024
SUIT FOR RECOVERY OF RS. 4,17,512/-.
JUDGMENT
1. Vide this Judgment, I shall decide the suit filed by the plaintiff for recovery of Rs. 4,17,512/- along with interest against the defendants.
2. Initially, the suit was filed under the provisions of Order 37 CPC only against M/s. Satya & Co. as defendant through its proprietor Sh. Vinod ( who later on become defendant no.2).
3. The brief facts as stated in the plaint are that the plaintiff is a company incorporated under the provisions of Indian Companies Act,1956 having its registered office at 4 th Floor, Punjabi Bhawan, 10- Rouse Avenue, New Delhi - 110002 and the present suit has been filed through Manager / AR Sh. Rajnish Kumar who is duly authorized by the Board of Directors of plaintiff company vide Board Resolution dated 1.11.2018. It is further stated that the plaintiff company is engaged in manufacturing of medium, high pressure hozes. It is further stated that the defendant firm is a proprietorship firm in the name and style of M/s. Satya & Company having its place of business at 248/11, Purana Bazar, Sunder Nagar, Himachal Pradesh and the said firm is being run by its proprietor.
4. It is further stated that defendant through its proprietor approached the plaintiff company and on request of defendant, plaintiff supplied the goods as per the specific requirement of defendant time to time. The plaintiff was maintaining ledger regarding defendant and as Suit (Com.) No. 225/2019 Page No. 2 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. per the ledger account for financial year 2018-19 a sum of Rs. 5,17,512/- recoverable from the defendant. It is further stated that the plaintiff company demanded payment of said amount and after great persuasion, defendant in discharge of its liability issued one cheque of Rs. 5,17,512/-, bearing No. 205969 dated 26.9.2018 drawn on Oriental Bank of Commerce, Sunder Nagar, Himachal Pradesh but the said cheque was dishonoured with the remarks, "insufficient funds".
5. It is further stated that the plaintiff company informed the defendant about dishonour of said cheque and the defendant has been assuring the plaintiff to make payment and asking for some time but the defendant made part payment of only Rs. 1 lac through NEFT on 5.10.2018 to the plaintiff hence remaining amount remains unpaid therefore the plaintiff sent legal notice demanding the said amount and the same was replied by the defendant on false, fabricated and cooked up story hence the defendant is liable to pay the amount of Rs. 4,17,512/- along with interest to the plaintiff.
6. Summons were issued to defendant under Order 37 CPC against defendant and on behalf of defendant, appearance was filed by Sh. Vinod Rai on 9.9.2019. Thereafter the plaintiff has filed an application under Order 37 Rule 3 (4) CPC for issuance of summons for Judgment and the summons were issued accordingly and after that, defendant has filed application for leave to defend under Order 37 Rule 3 (5) CPC on 12.3.2020. Thereafter, the plaintiff company has filed an application under Order 6 Rule 17 CPC for amendment in plaint and seeking impleadment of Sh. Piare Lal as defendant No. 1 and Sh. Vinod Rai (original defendant) as defendant No. 2 on the ground that Sh. Vinod Rai has informed in the application for leave to defend that the proprietor of M/s. Satya is Sh. Piare Lal. Said application was allowed and thereafter the plaintiff has filed amended plaint and amended memo of parties i.e. Sh. Piare Lal as defendant No. 1 and Sh. Vinod Rai as defendant No. 2.
Suit (Com.) No. 225/2019 Page No. 3 of 42M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
7. In the amended plaint, it was also stated by plaintiff that defendant No. 1 that defendant No. 2 approached the plaintiff company for supply of goods and it was prayed to pass decree against both the defendants and besides this rest of contents were the same as in original plaint.
8. Thereafter, summons were also issued to defendant No. 1 Sh. Piare Lal as ordinary suit whereas defendant No. 2 Vinod Kumar's application for leave to defendant was allowed and he was permitted to file written statement.
9. Defendant No. 1 in his written statement has stated that the suit of the plaintiff is not maintainable and liable to be dismissed as the same has not been properly valued for the purpose of court fees and jurisdiction. Further, it is stated that M/s. Satya & Co. has never issued cheque bearing No. 205969 in discharge of any liability and the same was handed over to the plaintiff as security in blank condition and the amount and date were left blank. It is further stated that the amount and dates were filled later on by the plaintiff on its own which was evident from the fact that the cheque is Non-CTS cheque and non CTS cheques are not issued and accepted by the banks after the year 2013 therefore, the date 26.9.2018 which appear on the cheque has been put by the plaintiff and not by Satya & Co. as the cheque is bearing signatures of proprietor of firm and name of payee in different ink and handwriting whereas rest of the columns are filled in different ink and handwriting.
10. It is admitted by defendant No. 1 that he is proprietor of Satya & Co. and he is stockiest of plaintiff company. It is also stated that the plaintiff is the manufacturer of hoze with sizes 1.2 meter and 1.5 meter which is used for domestic LPG connection and the plaintiff has arrangement with oil marketing companies viz. Indian Oil Corporation Ltd., Bharat Pertoleum Corporation Ltd. and Hindustan Corporation Ltd. for manufacturing and supply of aforesaid products through a supply Suit (Com.) No. 225/2019 Page No. 4 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. chain of which M/s. Satya & Co. is a part as stockiest.
11. It is further stated that under the supply chain, the plaintiff would manufacture these products and supply to the stockiest who in turn will sell to authorized distributor of these oil companies. In order to integrate whole supply chain and provide for real time coordination amongst manufacturer, stockiest these oil companies run a Non Fuel Web Portal on which the manufacturer, stockiest and distributor is listed and the quantum of these products supplied and available at stockiest's level on the basis of which distributor places order for these products with the stockiest. It is further stated that since these products are transacted through Non Fuel Web Portal of the oil companies and are sold through the authorized distributors of oil companies, it has brand value and command higher price as compared to similar products generally sold in the open market and for this value addition, the oil marketing companies charge "Over Riding Commission" from the manufacturer like the plaintiff. It is further stated that whenever the manufacturer sends these products to the stockiest, it enters the sent quantity on the web portal against the account of stockiest. It is further stated that the distributor will place an order of these products for certain quantity only if the web portal shows availability of such required quantity with that stockiest or else the distributor would look for placing order with some other stockiest. It is further stated that under the said background, transaction between the plaintiff and Satya & Co. used to take place. In the year 2009, Satya & Co. was appointed as stockiest and as per the present procedure, the plaintiff used to send the consignment of these hose pipes to Satya & Co., the stockiest and plaintiff used to make the entry of quantity of product on the web portal.
12. It is further stated that till 2011, these transactions went on smoothly until the plaintiff started short entry of the product on the web portal. The entry on the web portal would invariably be less than the actual quantity supplied by the plaintiff to Satya & Co. as a result of Suit (Com.) No. 225/2019 Page No. 5 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. which since the distributor would place order with Satya & Co., the stockiest only for the quantity shown on the web portal as available with the stockiest, remaining quantity of hose pipes remained as unsold with the stockiest. It is further stated that the plaintiff has overcharged the defendant by more than Rs. 10 lacs and after adding losses which defendant suffered due to plaintiff, the amount comes to Rs. 12,50,000/- approx. thus the defendant sought leave to initiate proceedings against the plaintiff for recovery of the aforesaid amount and thus, the plaintiff is not entitled to recovery any amount as claimed in the suit and the suit is liable to be dismissed.
13. Defendant No. 2 has filed his separate written statement in which same facts were stated as stated by the defendant No. 1 in his written statement therefore same are not repeated here.
14. Plaintiff has filed replication to the written statement of defendant No. 2 in which it is stated that the written statement is not maintainable as provisions of Commercial Courts Act has not been complied. Further, plaintiff has denied the contents of written statement and reiterated the contents of plaint as true and correct.
15. Admission / denial of documents done. Defendant No. 1 has denied following documents of plaintiff by way of affidavit :
1. Certificate of incorporation.
2. Copy of board resolution.
3. Cheque bearing No. 205969.
4. Copy of bank returning memo.
5. Copy of letter from bank.
6. Copy of cheque deposit slip.
7. Copy of bank letter.Suit (Com.) No. 225/2019 Page No. 6 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
8. Copy of statement of account for the year 2016-2019.
9. Copy of legal notice.
10. Copy of speed post receipt.
11. Copy of reply to legal notice.
16. On the other hand, plaintiff has denied following documents of defendant No. 1 by way of affidavit :
1. Annexure B, details of material purchased.
2. Annexure C, details of Suraksha Hose actually purchased.
3. Annexure D, difference in amount charged / bill amount.
17. On the basis of pleadings of the parties, following issues were framed vide order dated 3.8.2023 for consideration :-
1. Whether the plaintiff company has charged excess rate of the goods sold to the defendant?
OPD.
2. Whether the cheque bearing No. 205969 issued by defendant No. 1 M/s. Satya & Co. was given as security? OPD.
3. Whether the plaintiff later on filled the amount and the date on the cheque bearing No. 205969? If so, what effect? OPD.
4. Whether the present suit is not maintainable on account of mis-joinder of party as defendant No. 2 is not a necessary party? OPD-2.
5. Whether the plaintiff is entitled to recovery of a Suit (Com.) No. 225/2019 Page No. 7 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
sum of Rs. 4,17,512/-? OPP.
6. Whether plaintiff is entitled to pendente lite and future interest @ 24% per annum? OPP.
7. Relief.
18. In order to prove its case, plaintiff has examined only one witness i.e. its AR Sh. Rajnish Kumar as PW1.
19. On the other hand defendant has examined three witnesses i.e. defendant No. 2 as DW1 and Sh. Ved Prakash, Manager, Sheetla Gas Service, Sunder Nagar, Distt. Mandi, Himachal Pradesh as DW2 and Sh. Ganesh Shukla as DW3.
20 Argument were heard from Sh. Rahul Tandon Ld. Counsel for plaintiff and Sh. Lalit Kumar Ld. Counsel for defendant. Before giving issue wise finding it would be appropriate to discuss in brief evidence and arguments of rival parties.
PLAINTIFF EVIDENCES
21. Plaintiff has examined its AR Sh. Rajnish Kumar in his evidence as PW1 who in his testimony led through affidavit Ex. PW1/A has deposed almost the same facts as stated by the plaintiff in the plaint therefore same are not repeated here. PW1 has relied upon the following documents :-
1. Copy of company incorporation certificate as Ex.
PW1/1 (OSR).
2. Certificate extract of Board Resolution dated 01.11.2018 passed by Board of Directors of the plaintiff company authorizing Sh Rajnish Kumar as Ex. PW1/2 (Original minutes of meeting seen).
3. Certificate under Section 65B of the Indian Evidence Suit (Com.) No. 225/2019 Page No. 8 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
Act as Ex. PW1/3.
4. Office copy of invoices as Ex. PW1/4A to Ex. PW1/Z4.
5. Copy of delivery proof vide receipts as Marked as Mark A to Mark I.
6. Copy of Ledger Account for the year 2018-19 maintained by the Plaintiff Company as Ex. PW1/6 (colly running in 5 pages).
7. Original cheque no. 205969 dated 26.09.2018 drawn on Orinetal Bank of Commerce as Ex.PW1/7.
8. Return memo dated 27.09.2018 as Ex. PW1/8.
9. Copy of legal notice as Ex. PW1/9.
10 Reply to the legal notice as Ex. PW1/10.
22. In his cross examination, PW1 has deposed that he has joined the plaintiff company in March 2010 and at present, he is working as Senior Manager Finance & Accounts. He admit that he has not filed any document to prove that Sh. Arun Gupta was Director of the plaintiff company at the relevant time when the board resolution was passed. He was not present in the board meeting held on 1.11.2018 in which he was appointed as AR to file the present suit. Said minutes book of board meeting was signed by Sh. P.D. Narang only. Said minutes were not signed by other three Directors Sh. Arun Gupta, Sh. Abhay Kumar Aggarwal and Sh. Pankaj Kumar Jha who were also present in the said meeting. The minutes book which he have brought is starting from the meeting dated 28.9.2018 and the last date of meeting shown is 27.7.2021. He denied the suggestion that he was not authorized to give evidence in the present matter by the board in board meeting dated 1.11.2018. He further denied that minutes of board meeting dated 1.11.2018 are forged and fabricated.
He further depose that Plaintiff company only engaged in the Suit (Com.) No. 225/2019 Page No. 9 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. business of manufacturing of Medium High Pressure Hydraulic Hoses and General Purpose Industrial Hoses and other than these products, plaintiff company neither manufacture nor sell any other articles/products and again said that they also sell LPG Hoses (pipes) and manufacture LPG Hose Pipe for oil companies namely IOCL, HPCL & BPCL. He deposed that he has signed the invoices from Ex. PW-1/4A to Ex PW1/Z4 and statement of account Ex. PW-1/6 after taking out the printout of those documents from their computer printer.
He admit that he does not know Sh. Vinod Rai personally and he never met him though he talked to him over phone. He cannot say whether Sh. Vinod Rai is the proprietor of the defendant firm Satya and Co. and voluntarily deposed that he was whole-sole of the firm and he was only dealing on behalf of the said firm. He admitted that he has stated in his affidavit that Sh. Piare Lal is the proprietor of M/s Satya and Co.
He further deposed that the plaintiff sold the hose pipe of both Suraksha mark and without Suraksha mark in open market. The product on which they put Suraksha mark is a symbol of quality control as the oil company have authorized us to put the said mark of Surkasha on the pipes which have specific quality. The pipes on which they do not put Suraksha mark are also of same quality. There is also a difference of rate of both the pipes. He does not know whether there is any portal of oil companies by the name of Non Fuel Revenue Portal (NFRP). After seeing the company record, he stated that the plaintiff maintained in computer that as to how much amount they have adjusted against bill No. 2375 & 2376 and voluntarily stated that the said bills are prior to the period of the present dues. He can only say after seeing the company record maintained in computer that as to how much amount they have adjusted against bill no. 1486, 1487, 1690, 3330, 1691, 2677, 2678, 3066, 3067, 3068, 181, 182, 183, 975, 976, 977, 978, 1168, 1169, 1170, 2134, 2135, 2136, 2137 & 2785 and voluntarily deposed that the Suit (Com.) No. 225/2019 Page No. 10 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. defendant used to make on account payment which we used to adjust bill wise. He cannot say whether the defendant has made any payment by cheque besides the cheque No. 205969 and voluntarily deposed that if any payment had been made by cheque then the same would have been reflected in the ledger account. He cannot tell what terms were agreed between the plaintiff and defendant firm when they first time done the business. He was shown the documents Ex. PW-1/4A to PW-1/Z4. He admitted that the signature at point in circle X is of the guard who sign when the goods goes out from the factory of plaintiff at Baddi, Himachal Pradesh.
He further deposed that the plaintiff used to have agreement from oil company for manufacturing of hoze pipe whose stamp they fix on the hoze pipes. He knows that after his joining agreement has took place with IOC (Indian Oil Corporation) but he has to check whether after his joining any agreement has entered with other two oil companies or not. He was shown copy of agreement entered between plaintiff company and Indian Oil Corporation Ltd. He admitted that agreement Ex. PW1/D2 has entered between plaintiff and IOC. He admitted the agreement Ex. PW1/D3 has been entered between the plaintiff and BPCL as Ex. PW1/D3. He admitted that for the product i.e. hoze pipe which they manufacture, there used to be Dealer Billing Price (DBP), MRP and Over Riding Commission (ORC) The ORC is given by us to the oil company for the sale of hoze pipe having stamp of that particular company made by us. The bill regarding ORC is issued by the oil company to us and same used to be a combined bill of all the products which we have sold and with respect to sale made to a particular dealer. We give the details to the oil company of the sale made by us of a particular product through mail every month and thereafter on the basis of said details of sale, oil company issued the bill of ORC which we paid to them. There is no access of plaintiff to the web portal of oil company.
He admit that there was one Arvind Sharma working in the Suit (Com.) No. 225/2019 Page No. 11 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. plaintiff company as Sales Executive. Sh. Arvind Sharma also used to deal with defendant for plaintiff business. He also used to send mails to the defendant with respect to the business of plaintiff. He also admit that there is one Sachin Kumar Ruhela working in the plaintiff company as Sales Executive. Sh. Sachin Kumar Ruhela also used to deal with defendant for plaintiff business. He also used to send mails to the defendant with respect to the business of plaintiff. He admit the bill dated 3.10.2009 Ex. PW1/D4.
He stated he does not know when the cheque bearing No. 205969 dated 26.9.2018 was handed over to plaintiff by the defendant. he plaintiff has detail of opening balance of Rs. 7,23,483/- and I can file the same. Defendant was informed about dishonour of cheque Ex. PW1/8 through phone and e-mail. The present suit has not been filed qua any particular invoice but it has been filed qua the balance due as per the ledger account maintained by the plaintiff. He admit that annexure A i.e. e-mail dated 17.4.2013 EXPW1/D5 have signatures is of Sh. Nitish Rai, Director of plaintiff company. He admit that rate of hoze pipes on which there is stamping of oil company and the hoze pipe on which there is no stamp are different. They gave commission to the oil company on the sale of hoze pipe which bears stamp of oil company and they do not pay any commission on the sale of hoze pipe which is not having stamp of oil company. It is not their duty to enter the data in the oil company portal of the goods which were sold through the stockist / retailer. He admit that certificates Ex. PW1/D6 to Ex. PW1/D8 have been issued by plaintiff company. He admit that circular dated 4.8.2016 Ex. PW1/D9 issued by plaintiff company. The oil company provides password and ID to access the web portal by the manufacturer. The web portal can be accessed by the manufacturer in their case plaintiff. They do not provide the ID and password to distributor. No entry is made with respect to the stock of goods with distributor in the web portal of oil company. He admit that goods were supplied to the defendant from their factory situated at Baddi, Himachal Pradesh to Suit (Com.) No. 225/2019 Page No. 12 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. defendant at Sunder Nagar, Himachal Pradesh. The purchase order for goods were sent through e-mail and phone. No e-mail was filed regarding placing of order by the defendant. I cannot say whether the bank used to accept Non CTS cheques till the year 2013 only. He cannot say that the cheque Ex. PW1/8 was given in the year 2013. He denied the suggestion that since they have not uploaded the goods on the web portal of the oil company sold to the defendant due to which defendant has to sold the same at cheaper rate in open market (Vol. The defendant can always return the goods to us if he was unable to sold the same). He denied the suggestion that they have overpriced the goods sold to the defendant and due to said overprice goods rate, defendant is not liable to pay any amount rather defendant is entitled to receive Rs. 10,82,424/- from plaintiff for the payment made in advance.
DEFENCE EVIDENCE
23. Defendant has examined Sh. Vinod Kumar defendant no.2 as DW1. He in his examination in chief led by evidence by way of affidavit Ex. DW1/A has almost repeated same facts as stated by him in his WS. He rely upon the following documents :-
1. E-mail dated 17.4.2013 modified and accepted on 1.5.2013 already exhibited as Ex. PW1/D5.
2. Calculation made by me with respect to the difference of quantity of IOCL as Ex. DW1/2 (objected to as same is not a document but a self made calculation).
3. Difference of quantity of BPCL as Ex. DW1/3 (objected to as same is not a document but a self made calculation).
4. E-mail dated 22.2.2018 sent by plaintiff to defendant as Ex. DW1/4.
5. E-mail dated 26.10.2018 sent by defendant to plaintiff as Ex. DW1/5 (Colly. 5 pages).Suit (Com.) No. 225/2019 Page No. 13 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
6. E-mail dated 14.9.2010 sent by plaintiff to defendant as Ex. DW1/6.
7. E-mail dated 23.5.2011 sent by plaintiff to defendant as Ex. DW1/7.
8. E-mail dated 15.9.2010 sent by plaintiff to defendant as Ex. DW1/8 (2 pages).
9. E-mail dated 17.4.2012 sent by plaintiff to defendant as Ex. DW1/9.
10. E-mail dated 28.1.2014 sent by plaintiff to defendant as Ex. DW1/10.
11. E-mail dated 23.8.2016 sent by plaintiff to defendant as Ex. DW1/11.
12. E-mail dated 2.9.2016 sent by plaintiff to defendant as Ex. DW1/12.
13. E-mail dated 6.9.2016 sent by plaintiff to defendant as Ex. DW1/13.
14. E-mail dated 19.9.2016 sent by plaintiff to defendant as Ex. DW1/14.
15. E-mail dated 4.7.2017 sent by plaintiff to defendant as Ex. DW1/15.
16. E-mail dated 10.8.2017 sent by plaintiff to defendant as Ex. DW1/16 (2 pages).
17. E-mail dated 21.9.2017 sent by plaintiff to defendant as Ex. DW1/17.
18. E-mail dated 8.12.2017 sent by plaintiff to defendant as Ex. DW1/18.
19. E-mail dated 22.11.2017 sent by plaintiff to defendant as Ex. DW1/19.
20. E-mail / reply dated 29.10.2018 of the plaintiff to defendant's e-mail dated 26.10.2018 as Ex. DW1/20.
21. Certificate under Section 65B of the Indian Evidence Act as Ex. DW1/21.Suit (Com.) No. 225/2019 Page No. 14 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
22. Calculation made by me with respect to difference in amount as Ex. DW1/22 (objected to as same is not a document but a self made calculation).
24. In his cross examination, he stated that he is the Manager in the defendant firm. He admitted that all the dealings were used to be done by him with plaintiff. He has not filed any document / e-mail communication to show that the cheque No. 205969 was given as security cheque. No communication in writing was done with plaintiff company that the said cheque has been misused by the plaintiff company. He voluntarily deposed that he had oral communication with Mr. Jha, CEO of plaintiff company wherein I raised the grievance of misusing the said cheque but he does not remember the date, month but it was probably in the year 2019 when said communication happened. Said communication was happened on phone. No document has been filed on record to prove that the said cheque has been given in 2013. It is wrong to suggest that the aforesaid cheque was given to discharge the liability of the defendant. He denied the suggestion that the old cheque was given with malafide intention to deceive the plaintiff. He stated that there was verbal agreement between the plaintiff and defendant company regarding updation of the portal (Vol. There is agreement between oil company and manufacturers that whatever product manufacturers has to sell, detail of same is to be uploaded on the portal of the oil company and the details of the goods which the defendant company sold to its customer / gas distributor after receiving from the plaintiff used to be updated by the defendant on the portal).
He stated that his e-mail ID is : [email protected] and [email protected]. He admitted that e-mail dated 23.8.2016 already Ex. DW1/11 sent by plaintiff official to Satya & CO. Said e-mail was received by plaintiff company and by said e-mail, Arvind Sharma has updated the rates of goods of the relevant time. He also admitted that e-mail dated 19.9.2016 already Ex. DW1/14 sent by Suit (Com.) No. 225/2019 Page No. 15 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. plaintiff official to Satya & CO. and by said e-mail, Arvind Sharma has updated the rates of goods of the relevant time. He also admitted that e-mail dated 4.7.2017 already Ex. DW1/15 sent by plaintiff official to Satya & CO. and by said e-mail Arvind Sharma has updated the rates of goods of the relevant time. He admitted that the plaintiff company has issued distributor certificate EXDW1/P1 of the years 2010-11 which is now Ex. DW1/P1, 2011-12 Ex. PW1/6, 2016-17 Ex. PW1/7 and 2017- 18 Ex. PW1/8.
He denied the suggestion that on 8.8.2016, the balance between plaintiff and defendant was nil and voluntarily deposed that defendant has to take a sum of Rs. 10 lacs from plaintiff and plaintiff has assured that they will add the pipes of said amount on the portal. He admit there is no written communication in this regard. He denied the suggestion that defendant has made payment of Rs. 1 lac after dishonour of cheque 205969 (Vol. Said amount was paid to the plaintiff prior to dishonour of said cheque for the goods ordered by the defendant). The said amount of Rs. 1 lac was transferred through online on 5.10.2018. He does not know that the aforesaid cheque was dishonoured on 27.9.2018 and voluntarily depose that he does not know at time when he transferred Rs. 1 lac that the aforesaid cheque has been presented and got dishonoured. He admitted that reply Ex. PW1/10 of legal notice was sent by me. He admitted that that in the said reply, mentioned himself as director of defendant company but state that it was a mistake. He has not told the plaintiff official to take back the pipes which were not uploaded on the web portal but they did not take back. The said communication was done orally through telephone. He did not file any bill of pipes sold to scrape dealer which he sold due to non selling of the same to the gas companies as same were not uploaded on portal by plaintiff (Vol. Scrape dealer did not issue any bill). He has not filed any record how much quantity of pipes were sold by me to scrape dealer. There used to be expiry date of pipes which depend upon the date of manufacturing. He sold the hoze pipes to scrape dealer Suit (Com.) No. 225/2019 Page No. 16 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. in 2017. Till that time the said hoze pipes which he sold to scrape dealer has expired. He did not file any document that the hoze pipes which he sold to scrape dealer were expired. The plaintiff has not uploaded the pipes which were sold to me prior to the year 2015 on the portal but uploaded the pipes which were sold from 2016. He telephonically informed to the plaintiff official Arvind Sharma that the validity of pipes have expired and he will sold in scrape as you are not taking the same back. He does not remember the date and month when he informed him telephonically but it was in the year 2016 or 2017. He has not filed any recovery suit against the plaintiff for recovery of Rs. 10 lacs (Vol. It was assured by plaintiff official that they will upload the pipe on the portal of the said amount). He admitted that he had not made any complaint to the oil companies for not uploading the pipes as plaintiff assured to upload the pipes.
25. Defendant examined Sh. Ved Prakash, Manager, Sheetla Gas Service, Sunder Nagar, Dist. Mandi, Himachal Pradesh as DW2. In his examination in chief, he deposed that he does not know anything about the case.
Then with the permission of Court he was put leading questions. He stated that he joined Sheetla Gas Services as a data operator in the year 1997 and in the year 2001, he was promoted as Manager. Aforesaid firm sells gas chulha along with suraksha hoze pipe to the new customers of oil company. They can only sell oil company's approved gas chulha and suraksha hoze pipe to the new customers of oil company. They used to purchase the gas chulha and suraksha hoze pipe from the webportal named as Indian Oil NFR and Indian Oil Company. They have been given log in password by Indian Oil Company for said portal. They log in on to said portal and search from the said portal for the vendors of goods which they require. Vendor of the goods usually are the distributors of manufacturers of said goods. The stock of goods is reflected on the portal available with the vendor Suit (Com.) No. 225/2019 Page No. 17 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. and if same is as per our requirement, we place order and otherwise look the other vendor. He admitted the suggestion that if particular quantity which they require is not available with the vendor then they look after the another vendor who has such number of quantity of goods. His firm has dealing with Satya & Co. since 2009 till 2017-18. There are unapproved products i.e. hoze pipe is also available in the market but we do not deal with the same. The approved hoze pipes used to be costlier than unapproved. At present, the rate of hoze pipe approved by Indian Oil Company is Rs. 190/- for 1.5 meters and rates of unapproved pipe is around Rs. 100/- - 120/- for 1.5 meters. At present, the rate of hoze pipe approved by Indian Oil Company is Rs. 100/- for 1.2 meters and rates of unapproved pipe is around Rs. 40/- - 50/- for 1.2 meters. From the year 2014, we noticed that generally Satya & Co. is not having the required quantity of the hoze pipes which we require.
26. In his cross examination he depose that the do not have any document which shows that he had joined Sheetla Gas Services in the year 1997. I He has not brought any document to show that our firm used to purchase hoze pipes from Indian Oil NFR webportal. He has not brought any document that the log in ID and password is given by Indian Oil (Vol. he has the login password even right now by which he can access the portal of Indian Oil). The hoze pipe which is approved by Indian Oil Company is approved hoze pipe and those which is not approved by said oil company is not approved. I do not remember what was the rate of approved and unapproved pipes from the year 2014 to 2018 Vendors are those persons from whom whom they purchase the goods.
27. DW3 Ganesh Shukla, in his evidence led by way of affidavit Ex. DW3/A has depose that he used to work in M/s. Supe LPG Appliances was engaged in business of manufacturing and selling LPG Stove approve by all three oil company i.e. IOC, BPCL and HPCL and used to work as back hand Manager and his work was to handle web Suit (Com.) No. 225/2019 Page No. 18 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. portal of oil companies and LPG stove could be sold has to search the through the web portal of the company and what ever articles they used to sell to their stockiest, it was their duty to upload the quantity of stock of that particular stockiest on web portal of the oil company and the moment they upload the sock it used to reflect in the stock of that particular stockiest and when gas distributor has some requisition to purchase articles, the gas distributor after login the web portal and has to search the stockiest who has the required goods and then gas distributor place the order. His firm has business dealing with Satya & Co. as stockist.
28. In his cross examination, he deposed that he co worked in Super LPG Appliance from 2006 - 2015 and thereafter he started working in Padamshree Industries and then worked in Padamshree Industries till March 2020 when first lockdown was imposed. His owner were manufacturers and the persons who used to purchase goods from them were called stockists if they are dealing in Bharat Petroleum and distributors they are dealing in products related with Indian Oil and HP.
29. Defendant has also examined Ms. Ritu Bedi, DGM, IOC, Chandigarh as DW4. She only deposed that requisite record is not available on web portal of IOC as IOC has changed web portal in 2020 whereas summon record is prior to year 2020.
30. She was cross examined by Ld. Counsel for defendant. In her cross examination she was asked question as under:
"Q. Can you tell what is the methodology of sales of your goods through web portal ?
Ans. The IOC tied up the manufacturers of the goods that whosoever are the distributors of the IOC can purchase the goods from the manufacturers through web portal of IOC".
She further deposed that distributors raised indent of the goods he required on the web portal of the IOC and then the concerned Suit (Com.) No. 225/2019 Page No. 19 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. manufacturers raises the invoice qua the said goods. The manufacturer has liberty to supply those goods to distributors through its stockiest. IOC has no role in appointment of the stockiest. The IOC do not keep any record for transactions between manufacturer and stockiest. There is no requirement for the manufacturer to upload data on the IOC web portal qua the goods which it has sold / supplied to the stockiest and the stockiest has also not requirement to upload data of the goods which have been sold / supplied by the manufacturer to the stockiest. The same method for sale is adopted both prior to year 2020 and after that. She denied the suggestion that the method which she has told is adopted only after year 2020 or that she has no knowledge of the methodology adopted by sales prior to year 2020. She further deposed that the Strategy Department of the IOC deals with the tie up of IOC with manufacturer and also control web portal maintains by the IOC. IOC has only one Strategy Department for entire country which is situated at Bombay.
ARGUMENTS
31. It is argued by Ld. Counsel for the plaintiff that from the testimony of PW1, it is proved that the plaintiff has business dealings with the defendant No.1 proprietorship firm Satya & Co. since 2009-10 and has supplied the hoze pipes of various descriptions through various invoices and it is defendant No. 2 who used to deal with the plaintiff company on behalf of Satya & Co. and till 2016, defendant was making regular payments of the goods supplied and there was a balance of Rs. 500/- only. Thereafter the defendants have become dishonest and did not make payment and a sum of Rs. 5,17,512/- became due and in order to pay the said amount, the defendant issued cheque bearing No. 205969 for an amount of Rs. 5,17,512.50 Ex. PW1/7 but when the said cheque was presented, same got dishonoured and thereafter the plaintiff informed defendant about dishonour of said cheque and after Suit (Com.) No. 225/2019 Page No. 20 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. persuasion, the defendant assured that he will make payment but only paid Rs. 1 lac and thus, Rs. 4,17,512/- was remained unpaid which the defendant did not pay despite repeated request and hence the plaintiff sent legal notice Ex. PW1/9 but despite said legal notice, defendant did not pay the amount and hence the plaintiff is entitled to recover an amount of Rs. 4,17,512/- from the defendants along with interest.
32. On the other hand, Ld. Counsel for the defendants has argued that modus operandi of sale of hoze pipes is that the plaintiff sold the hoze pipes to the stockiests and the quantity which it sold to the stockiests like defendant is entered in the web portal of the oil companies, being distributors who deal in the gas business approached to the said web portal of oil company to find out which stockiest has the stock available which they require and after finding that particular stock is available with the stockiest, they place order and then the stockiest sold the goods to the distributors.
33. Ld. Counsel further argued that from the testimony of defence witnesses, it is proved that the plaintiff was the manufacturer of the hoze pipes which are used in supply of domestic gas and plaintiff has to sell the same with the approval of oil companies and plaintiff has to upload the date of stock which it sold to the stockiest on the web portal of oil company and distributors who required the said hoze pipes used to search the goods available with the stockiest on the said portal and after seeing availability used to place order but plaintiff did not make entry of complete goods sold on the web portal of the oil companies and therefore defendant no.1 who was stockiest of plaintiff could not sold those hoze pipes which were not uploaded on web portal as distributors were not aware that the defendant's has such stock. He further argued that despite repeated requests of uploading the entire quantity of the stock sold to the defendant, the plaintiff did not do the same hence the stock which was not uploaded on the web portal was remained unsold and the defendant was forced to sell the same as scrap and suffered Suit (Com.) No. 225/2019 Page No. 21 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. losses therefore defendant is not liable to pay the amount of the goods rather he is entitled to recover the loss which he has suffered. Ld. Counsel for defendant has further argued that it is not disputed fact that the plaintiff has sold the goods to M/s. Satya & Co. and defendant No. 2 is not the proprietor of the same but he is only Manager of Satya & Co. is the proprietorship firm of defendant No. 1 and thus, the only the employee and therefore whatever business he has dealing with the plaintiff has done on behalf of defendant No. 1 hence, he is personally not liable to pay any amount to the plaintiff.
34. In rebuttal, Ld. Counsel for the plaintiff has argued that defendant through defence evidence has failed to prove that there was any responsibility of plaintiff to upload the stock of goods un web portal of oil company. He further argued that plaintiff is seeking recovery of good which is sold for the year 2016 and till year 2016 only Rs. 500/- was balanced. He argued that defendants have never sent any complaint or notice to the plaintiff that he has any unsold stock of hoze pipes and he is unable to sold the same due to non- uploading of these stock on web portal of oil company and never returned the same or asked to plaintiff to take back the same. He further never sent any notice to the plaintiff before selling the said alleged stock in scrap hence the grounds taken by the defendant for not making the payment is not an after though defense and thus plaintiff is entitled to recover the suit amount from the defendants. He further argued that it is the defendant No. 2 who was dealing with the plaintiff and he has never disclosed to the plaintiff that he has no concern with Satya & Co. for which he was purchasing goods from the plaintiff. He further argued in reply to the legal notice, the defendant No. 2 has admitted that he is the Director of Satya & Co. therefore he cannot be allowed to say that he has no concern with Satya & Co. or not liable to pay the amount of goods which plaintiff has supplied to Satya & Co on asking of defendant No. 2 therefore both, he and defendant No. 1 are liable to make payment of Suit (Com.) No. 225/2019 Page No. 22 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. goods which plaintiff ha sold to Satya & Co. therefore, suit is not bad for misjoinder of necessary parties.
FINDING ISSUE NO. 1.
Whether the plaintiff company has charged excess rate of the goods sold to the defendant? OPD.
35. The onus to prove that the plaintiff has charged excess rate of goods sold to the defendant than what was agreed between the plaintiff and defendant is upon the defendant. The plaintiff through the testimony of PW1 has proved the invoices Ex. PW1/4A to Ex. PW1/4Z by which the plaintiff sold goods to defendant. Said invoices were also filed by the plaintiff with its plaint before issuance of summons but both the defendants nowhere in their respective written statement have stated that what was the rate of goods on which defendant agreed to purchase the same from plaintiff and how much amount plaintiff has charged excess then the agreed rate.
36. Further PW1 in his testimony has also proved the said invoices Ex. PW1/4A to Ex. PW1/4Z. In his cross examination, he was put the e- mail Ex. PW1/D5. On perusal of same, it is evident that by the said e- mail which was sent by plaintiff company official Arvind to some [email protected] and copy to Vikas Rungta and Nitish Agarwal. Subject of the said e-mail was Revise Prices 13-14 in which price of various hoze pipes is mentioned. He admitted that there is something written in handwritten on the said page and is having signatures of Nitish Agarwal. He stated that said Nitish Agarwal is Director of plaintiff company. On perusal of e-mail it is evident that it is mentioned in handwritten note as under :-
"Reduction Rs. 1.20-1.2 Suit (Com.) No. 225/2019 Page No. 23 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. Rs. 1.50-1.5 At actual to pay by Satya & Co."
37. Defendant has given no suggestion to PW1 what is the meaning of said handwritten portion but I presume that the defendant was given discount on the price list of hoze pipes at the rate of Rs. 1.20 for 1.2 meter pipes and Rs. 1.50 for 1.5 meter pipes. On perusal of said e-mail Ex. DW1/11 it is evident that the same is with respect to the prices of hoze pipes effective from 20.8.2016 :
Sr. No. Item Name Old Price (INR) New Price (INR)
1. IOCL 1.2 MTR 84.00 86.40
2. IOCL 1.5 MTR 98.00 101.00
3. HPCL 1.5 MTR 109.00 112.00
4. BPCL 1.5 MTR 109.00 112.00
5. BPL 1.2 MTR (PMUY) - 67.00
6. Domestic 1.2 MTR 64.00 66.40
7. Domestic 1.5 MTR 76.00 79.00 On perusal of e-mail Ex. DW1/14, it is evident that the same is with respect to prices of hoze pipes from 1.10.2016 :
Product UOM New Rate (INR) Old Rate (INR) BPL 1.2 Mtrs. (PMUY) Per pc 69.00 67.00 HPCL 1.5 Mt. Per pc 114.00 112.00 IOCL 1.5 Mt. Per pc 114.00 101.00 BPCL 1.5 Mt. Per pc 114.00 112.00 Domestic 1.5 Mtr. Per pc 81.00 79.00
On perusal of e-mail Ex. DW1/15, it is evident that the same is with respect to prices of hoze pipes from 1.7.2017 :
Product UOM Basic GST Total Suit (Com.) No. 225/2019 Page No. 24 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
Rate 5 BPL 1.2 Mtrs. (PMUY) Per pc 62.31 11.22 73.53 7 Suraksha 1.5 Mt. Per pc 102.83 18.51 121.34 9 Domestic 1.5 Mtr. Per pc 74.07 13.33 87.41
38. The defendant has not given any suggestion to PW1 that plaintiff has not charged the rate of supplied goods for the year 2013-14 to 2016 during the period for which the said price list is valid as admittedly in year 2016 plaintiff sent another price list through email dt. 23.08.2016 EXPWDW1/11 and 19 September 2016 EXDW1/14. No suggestion has been given to the witness that invoices which the plaintiff has filed on record contain price excess to than what has been quoted in the e-mails.
39. Since the DW1 has also admitted of receiving the aforesaid e-mails in which the said prices are quoted and rather relied. The defendant also has not produce any document with pleading or put to witness that he complaint to plaintiff that he has no right to increase the rate and he should charge at the rate of price list of year 2013-14, therefore in my view the defendants through the testimony of DW1 has been unable to prove that the plaintiff has charged excess rates of the goods sold by the plaintiff to the defendant than what was agreed between the plaintiff and defendant. Hence, I decide issue No. 1 against the defendant and in favour of the plaintiff.
ISSUE NO. 2.
Whether the cheque bearing No. 205969 issued by defendant No. 1 M/s. Satya & Co. was given as security? OPD.
AND ISSUE NO. 3.
Whether the plaintiff later on filled the amount and the Suit (Com.) No. 225/2019 Page No. 25 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. date on the cheque bearing No. 205969? If so, what effect? OPD.
40. Since both the issues are interconnected, I shall decide the same simultaneously. It is undisputed fact that the cheque was given by the defendant to the plaintiff. The only dispute is that whether the said cheque was given as security by defendant No. 1 to plaintiff in blank condition and whether the plaintiff has filled the amount and date on the said cheque on its own without any consent of defendant.
41. PW1 in his testimony has deposed that the defendant in order to discharge the liability of Rs. 5,17,512/- gave the cheque No. 205969 dated 26.9.2018 drawn on Oriental Bank of Commerce which he exhibited as Ex. PW1/7.
In his cross examination, he stated that he does not know whether it is a non CTS cheque or not. He stated that bank used to accept non CTS cheque till year 2013. He stated he cannot say whether said cheque was given in year 2013. In my view though PW1 did not answer the aforesaid question but from the testimony of PW1 nothing could be inferred in favour of defendant that said cheque was given as security or that it was given in year 2013.
42. The onus is upon the defendant to prove the said fact. The defendant through the testimony of DW1 has depose that cheque EXPW1/7 is a non CTS cheque but the defendant has not led any evidence that use of non CTS cheques were stopped in the year 2013 as alleged by the defendant or even in year 2018 when the said cheque was dishonour. From perusal of cheque retutn memo EXPW1/8 it is evident that cheque was dishonor not because cheque is not valid being non CTS cheque but it was dishonor due to insufficient fund. Hence in such circumstances it cannot be presume that since it was non CTS therefore it was given prior to year 2013 or that it was given as security
43. As far as testimony of defendant witnesses is concerned, the relevant witness for this purpose defendant has examined is again Suit (Com.) No. 225/2019 Page No. 26 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. DW1 Vinod Kumar. Though he has depose that aforesaid cheque was given by Satya & Co. to the plaintiff in the year 2013 and the amount and date was left blank as it was given only as security. He further deposed that the amount and date was later filled by the plaintiff on its own and therefore amount cannot be said to be one admitted by Satya & Co. He further deposed that careful examination of cheque in question clearly proves the fraud and cheating on the part of plaintiff as the said cheque is of the proprietor of defendant firm and name of the payee in different ink and handwriting whereas rest of the columns of cheque are in different ink and handwriting.
44. In his cross examination, he admitted that he has not filed documents / e-mail communications to show that the cheque No. 205969 was given as security cheque and also admitted that no communication in writing was done with plaintiff company that the said cheque has been misused by the plaintiff company and voluntarily deposed that he has oral communication with Mr. Jha, CEO of plaintiff company wherein he raised the grievance of misusing the said cheque. He deposed that he does not remember the date or month but it was probably in the year 2019 when said communication happened and the said communication was happened on phone but he does not remember the mobile number of Mr. Jha. Thus, from the testimony of DW1, it is evident that the defendant is claiming that the cheque was not given to discharge the liability of defendant for the sum of Rs. 5,17,512/- but as security mainly on the ground that it was a non CTS cheque and non CTS cheques were stopped to be used by the banks in the year 2013. He has not depose why the said cheque was given as security in year 2013 when admittedly defendant has dealing with plaintiff since year 2009-10 and defendant already has distributorship of plaintiff as per distribution ship certificate Ex. DW1/7 for 01.04.2011 to 31.03.2013 therefore there was no need to give cheque for security in the year 2013. He did not produce any receipt / acknowledgment given by plaintiff that Suit (Com.) No. 225/2019 Page No. 27 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. said cheque is taken as security in year 2013.
45. As far defendant Counsel contention that the signatures and amount on cheque and dates are in different ink and handwritings, undoubtedly name of the drawer of cheque are in different handwriting and the amount and date are in different handwriting but merely on this ground it cannot be said that the same has been filled by the plaintiff side. It cannot be ruled out that even the defendant can get filled the same with different person and in that situation same will be in different handwiring. No presumption can be raised that since date and amount of cheque is in different ink and different handwriting therefore same has been got written by plaintiff. Moreover if the defendant gives a blank cheque after signing the same, then he gives implied consent to the other party to fill the left over blank portion of the cheque and same cannot be said to be forgery. Therefore in my view defendant has failed to prove that the said cheque is given as security or that plaintiff has filled amount and date on the cheque later on therefore I decide issues No. 2 and 3 in favour of the plaintiff and against the defendants.
ISSUE NO. 4.
Whether the present suit is not maintainable on account of mis-joinder of party as defendant No. 2 is not a necessary party? OPD-2.
46. As per Order 1 Rule 3 (a) CPC, a plaintiff can add all persons as defendant in one suit where any right to relief arise out of same act or series of acts against such persons jointly, severally or in the alternative. Further Order 1 Rule 7 CPC provides that plaintiff may join two or more persons as defendants as he is in doubt from whom he has to obtain redress. Order 1 Rule 3 & 7 CPC are reproduce as below :
Suit (Com.) No. 225/2019 Page No. 28 of 42M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
"3. Who may be joined as defendants.
All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
7. When plaintiff in doubt from whom redress is to be sought.
Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties".
47. The defendant No. 2 in its written statement has stated that since he is not proprietor of Satya & Co. but he is just the manager therefore suit is bad for misjoinder of party. The onus to prove the said issue is upon the defendant No. 2.
48. It is worthwhile to mention here that Plaintiff has initially filed the suit under Order 37 CPC against the defendant No. 2 stating that he is the proprietor of Satya & Co. as he was dealing on behalf of Satya & Co. but defendant No. 2 filed application for leave to defend claiming that he is not the proprietor of Satya & Co. and defendant No. 1 Piare Lal is the proprietor. Hence plaintiff filed application under Order 6 Rule 17 CPC which was allowed and Sh. Piare Lal was impleaded as defendant No. 1 and Sh. Vinod Kumar as defendant No. 2.
49. Now question is once plaintiff by amending the plaint acknowledged that defendant No. 1 is the proprietor of Satya & Co. to whom it sold the goods, whether the defendant No. 2 is still necessary Suit (Com.) No. 225/2019 Page No. 29 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. party or suit is bad for misjoinder of party.
50. PW1 in his evidence affidavit has deposed that the defendant No. 1 through defendant No. 2 approached the plaintiff company and represented that they are leading firm and high repute and assurance of defendant, plaintiff supplied the goods. The defendant no.2 in its written statement has stated that he is manager of defendant No. 1 and used to deal with plaintiff on its behalf. The legal notice Ex. PW1 / has been replied by the defendant No. 2 as Director of Satya & Co. therefore it cannot be said that defendant No. 2 is not a necessary for just decision though it is different thing that whether he is liable to pay for the goods sold by plaintiff to defendant no.1 or not party in the case. In my view since defendant No. 2 was dealing with plaintiff therefore it cannot be rule out that there may be confusion in the mind of plaintiff whether he is liable or defendant no.1 is liable to pay the amount of goods or both are jointly or severally liable and in my view to decide the same defendant no.2 is a necessary party hence, the suit is not liable to be dismissed on the ground that suit is bad for misjoinder of party. Accordingly I decide issue No. 4 against the defendant and in favour of the plaintiff.
ISSUE NO. 5.
Whether the plaintiff is entitled to recovery of a sum of Rs. 4,17,512/-? OPP.
51. The plaintiff has claimed recovery of Rs. 4,17,512/- as the principal amount due of the goods supplied. The onus is upon the plaintiff to prove that he is entitled to recover the same. As stated above, in order to prove its case, the plaintiff has examined only one witness i.e. its AR Sh. Rajnish Kumar who is also its Manager. He deposed that plaintiff has sold goods as per the specific requirements of defendant time to time vide invoices Ex. Ex. PW1/4A to Ex. PW1/4Z4 details of which are as under : -
Suit (Com.) No. 225/2019 Page No. 30 of 42M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
Ex. No. Invoice No. Date Amount (Rs.)
PW1/4A 1487 3.9.2016 72,870
PW1/4B 1486 3.9.2016 2,15,355
PW1/4C 1690 23.9.2016 3,52,800
PW1/4D 1691 23.9.2016 93,975
PW1/4E 2677 30.12.2016 4,52,531
PW1/4F 2678 30.12.2016 1,59,599
PW1/4G 3066 4.2.2017 2,42,552
PW1/4H 3067 4.2.2017 61,951
PW1/4I 3068 4.2.2017 3,07,143
PW1/4J 0181 27.4.2017 6,62,522
PW1/4K 0182 27.4.2017 96,071
PW1/4L 0183 27.4.2017 2,02,124
PW1/4M 001168 25.8.2017 3,69,930
PW1/4N 001169 25.8.2017 1,19,180
PW1/4O 001170 25.8.2017 43,701
PW1/4P 000975 31.7.2017 4,05,920
PW1/4Q 000976 31.7.2017 1,91,160
PW1/4R 000977 31.7.2017 50,150
PW1/4S 000978 31.7.2017 1,74,805
PW1/4T 002134 13.12.2017 6,67,880
PW1/4U 002135 13.12.2017 1,91,160
PW1/4V 002136 13.12.2017 50,150
PW1/4W 002137 13.12.2017 10120
PW1/4X 002785 21.2.2018 5,66,400
PW1/4Y 002786 21.2.2018 1,04,548
PW1/4Z 002787 21.2.2018 47,672
PW1/4Z1 002788 21.2.2018 25,488
PW1/4Z2 000034 10.4.2018 2,72,580
PW1/4Z3 000035 10.4.2018 1,93,520
PW1/4Z4 000036 10.4.2018 47,672
Suit (Com.) No. 225/2019 Page No. 31 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. But the defendant did not make payment and as per the ledger for the year 2018-19, Ex. PW1/6 a sum of Rs. 5,17,512/- was due as the principal outstanding. He further deposed that defendant in order to discharge liability by a cheque of Rs. 5,17,512/- bearing No. 205969 but the same got dishonoured and thereafter the defendant made payment of Rs. 1 lac on 5.10.2018 through NEFT hence a sum of Rs. 4,17,512/- is still balance which defendant has not paid despite repeated requests of the plaintiff.
52. From his cross examination of PW1, it is evident that there is no suggestion to the witness that the goods through aforesaid invoices has not been sold & supplied by the plaintiff to the defendant rather from the written statement of defendant and the cross examination of DW1, it appears that the defendant's defence is that :
(i) plaintiff did not load the details of hoze pipes which plaintiff has sold to defendant on the web portal of oil company like IOC, HP and BPCL as was required and due to which the said goods were not reflected to the distributors who approached the web portal of these oil companies and thus did not come to know that the defendant has stated of the same and due to which he could not sell the same and has to sell the same as scrap and suffered losses of Rs. 10 lakh.
(ii) plaintiff should have charged the rate @ the rate which plaintiff has charged in year 2013 for hoze pipes which were not approved from oil company as plaintiff did not upload sale of said pipes on web portal of oil company.
53. In my view once the defendant did not deny delivery of goods, the onus is shifted upon the defendant to prove the aforesaid defenses. Sections 101 and 102 of Indian Evidence Act deal with burden of proof which are reproduced as under:
Suit (Com.) No. 225/2019 Page No. 32 of 42M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B".
54. Whereas Section 103 of The Indian Evidence Act are provides that burden of proof of a particular facts on that person who wants courts to believe existence of any particular facts. Section 103 is reproduced as under :-
"103.The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."Suit (Com.) No. 225/2019 Page No. 33 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.
"106.When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
55. Hon,ble Supreme Court in Raghavamma and another v. A. Chenchamma and another 1964 AIR 136, referring to sections 101 to 103 explained the distinction between burden of proof and onus of proof in the following terms :
"There is an essential distinction between Burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
(16) The burden of proof that lies under Section 101 and that under Section 102 of the Evidence Act is distinguishable :
the former has been described as a "legal" or "persuasive burden" and the latter as the evidential burden or as the "burden of adducing evidence" (Phipson). It is easy enough to say concerning the legal or persuasive burden that it lies on whichever party would fail if no evidence were given on either side or if the allegation to be proved is struck out of the record. But, as Rupert Cross points out "A moment's reflection should suffice to show that these tests arc only applicable to the evidential burden ; they cannot apply to the legal burden in all cases." "As a matter of commonsense", "the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or that prosecutor in criminal proceedings"; it would go to such length as the burden of proof of the assertion still resting upon the plaintiff even "if the assertion of a negative is an Suit (Com.) No. 225/2019 Page No. 34 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. essential part of the plaintiff's case." (Vide Bowen, L.J. in Abrath v. North Eastern Rail, Co., 1883 Ii Q.B.D. 440 at p. (457 a decision which was affirmed by the House of Lords in (1886) Ii A.C. 247). Cross explains the difficulty which may sometimes arise with regard to the question whether an assertion is essential to a party's case or that of the adversary by referring to the decision of the House of Lords in Joseph Constantine Steamship Line, Lid. v. imperial Smelting Corporation, Ltd. (1942 A.C. 154) (9). In that case the charterer of the ship claimed damages from the owners for failure to load ; the owners pleaded frustration of the contract by reason of the destruction of the ship owing to an explosion. The question of fact for determination was whether the explosion had been caused by the fault of the owner, but the evidence was scanty on this question. The House of Lords held that thc plaintiff had the legal burden of proving default when frustration of the contract was pleaded.
In some cases, as Cross explains, it becomes necessary to ascertain the "legal burden of proof" even after consulting the precedents concerned with the various branches of substantive law. Even greater difficulty arises when the existence or non-existence of any fact in issue may be known for certain by one of the parties and this is often said to have an important bearing on the incident of burden of proof of that fact. Reference in this connection is made by him to R. v. Turner, (1816) 5 m. & S. 206) where the accused was prosecuted for having pheasants and hares in his possession without the necessary qualification or authorisation; ten possible qualifications had been mentioned in the relevant statute. The King's Bench held that it was unnecessary for the Crown to prove that these qualifications did not apply to the case. "
56. Now coming back to the case. Defendants have examined four witnesses. As far as defendant no.2 to 4 are concerned same are witnesses only to the effect that plaintiff was required to upload the hoze Suit (Com.) No. 225/2019 Page No. 35 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. pipe sold by its to its distributor/ stockiest on web portal of Oil Companies.
57. As far as testimony of DW2 Ved Parkash, he only depose that the company where he used to work was providing domestic gas to its customer and probably it was a gas agency who also used to sell gas chulha and suraksha hoze pipes to its customer and the distributor like plaintiff from whom his company used to purchase the gas chulha and hoze pipe used to approach from the distributor from web portal named as Indian Oil NFR and Indian Oil Company and seeing the availability of stock with distributor they used to place order to said distributor on said portal.
58. Similarly, testimony of DW3 Ganesh Shukla only depose that the company where he used to work was manufacturer of LPG stove and his company has MOU with Oil company for sale of LPG stove for which fees was paid by his company to oil company and after which oil company provided ID and Passward to access their web portal and they have to upload the stock sold to their stockiest on the said web portal in the stock of said stockiest and same was visible to gas distributor that which stockiest has stock they required and thereafter gas distributor used to place the order.
59. In my view even if I take the their testimony as gospel truth their testimony only proved that there was a web portal made by each oil company i.e. Indian Oil, Bharat Petroleum and Hindustan Petroleum which supply both domestic and industrial gas and they seem to register companies who used manufacturer items used in supply of gas like Gas stove and hoze pipe etc., and were running their separate web portal and used to provide access to manufacturer to upload their sale to stockiest on said web portal which make and probably their stockiest and gas distributor agency also have access to said web portal and gas distributor agency after checking the availability of stock with a Suit (Com.) No. 225/2019 Page No. 36 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. particular stockiest from said web portal used to place order, which means if sale is not uploaded by manufacturer then stock would not be reflected and then distributor would not come to know that stockiest has stock which they required and they will place order for some other stockiest. But in my view their testimony does not proved since when said arrangement was made by Gas agency and whether it is mandatory for manufacturer to upload the sale to stockiest and if not done said product will not be approved product.
60. In my view said answer could be given by Ritu Bedi, DGM of IOC who deposed that IOC was maintaining web portal and IOC tied up with manufacturer of the goods and distributor can purchase the goods they required of said manufacturer from web portal and thus she also corroborate that web portal was maintain by OIL Company but in her cross examination by Ld. Counsel for defendant she admit that there is no requirement of manufacturer and stockiest to upload data on the IOC web portal of the goods they sold which means it was voluntarily for the manufacturer to upload data of sale to stockiest on oil company web portal thus it was like a normal web portal like pvt companies like amazon or flip cart where seller upload their product details so that prospective buyer could see what is available with seller. Hence, none of these witnesses' testimony proved that plaintiff was required to upload entire data on oil company web portal or that defendant No. 1 has left any unsold goods which could not be sold due to non uploading of data of sale by plaintiff to its stockiests on oil company web portal.
61. Now coming to testimony of star witness of defendants i.e. DW1 Vinod Kumar. He deposed that the plaintiff has arrangement with oil companies i.e. IOC, HP, BPCL for manufacturing and supply of hoze pipes which is used for domestic LPG connections and he used to supply the same through a supply chain of which Satya & Co. is part as stockiest and under the supply chain, the plaintiff would manufacture these products and supply to the stockiest who in turn will sell to the Suit (Com.) No. 225/2019 Page No. 37 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. authorized distributor of these oil companies. He further stated that in order to integrate whole supply chain and provide for real time coordination amongst manufacturer, stockiest, these oil companies run a "Non Fuel Web Portal" on which the manufacturer, stockiest and distributor is listed and the quantum of these products supplied and available at stockiest's level is shown on the basis of which distributor places order for these products with the stockiest. Since these products transacted through non fuel web portal of the oil companies and are sold through the authorized distributors of the oil companies, it has brand value and command higher price as compared to similar products generally sold in the open market and for this value addition, the oil marketing companies charge over riding commission from the manufacturer i.e. the plaintiff in this case. It is further stated that whenever the manufacturer sends these products to the stockiest, it enters the sent quantity on the web portal against the account of the stockiest. The distributor checks the availability of product with a particular stockiest from the web portal and accordingly placed order. He further deposed that though the Satya & Co. was appointed as stockiest in the year 2009 but till the year 2011, transactions went on smoothly until the plaintiff started short entry of the product on the web portal than the number of goods sold to the defendant as a result of which the distributor placed order only for the quantity as shown in the portal and remaining quantity remains unsold and the defendant sold the same in open market and further deposed that at the most, the plaintiff can claim the rate as agreed between the plaintiff and Satya & Co. on 1.5.2013 for the product to be sold in the open market and not at the rate which was agreed for the product to be sold through the distribution chain of the oil companies. Therefore, the plaintiff has overcharged the sum of more than Rs. 10 lacs from the defendants.
62. DW1 has given the details of goods which the plaintiff has uploaded on portal as annexure B in which the difference of actual Suit (Com.) No. 225/2019 Page No. 38 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. quantity supplied and updated on portal is mentioned i.e. 21600 is the actual quantity supplied for 1.2 meter hose pipes and 1400 is the quantity updated on portal for 1.5 meter hose pipes from 14.1.2010 to 16.4.2018 and similarly he has also filed annexure C in which the difference of actual quantity supplied and updated on portal is mentioned i.e. BPL 1650 is the actual quantity supplied and 1500 is the quantity updated on BPCL portal for 1.2 meter hose pipes and 7600 is the quantity updated on portal for 1.5 meter hose pipes from 26.6.2010 to 25.4.2018 but the same are self made balance sheet of goods and cannot be relied upon.
63. I am agreed with the contention of Ld. Counsel for plaintiff, if the plaintiff was not uploading the details of goods sold by it to Satya & Co. and due to which defendant was unable to find buyer, it could make complaint to the plaintiff in this regard but the DW1 has admitted that no complaint has been made by him in writing regarding plaintiff not uploading the said goods on web portal. It is unbelievable that the defendants are dealing with the plaintiff since the year 2010 and plaintiff was not uploading correct data of the goods on web portal and due to which defendant was unable to sale its goods but despite this defendant did not send a single communication in writing to the plaintiff in this regard and only take the said ground first time in the year in the reply Ex. PW1/10 dated 05.01.2019 in response to the legal notice Ex. PW1/9. Further in my view, if the plaintiff was not uploading the complete quantity of goods then the defendant should have stop business with the plaintiff instead of waiting for 9-10 years to raise the said grievance.
64. Further, though the DW1 has alleged that he sold the unsold products to the scrap dealer, neither he gave name of said scrap dealera nor examine him as witness nor has produce any document that the same were sold to scrap dealer. Further, he did not file the defendant company's balance sheet to show that the unsold quantity was sold to scrap dealer and he shows the loss in the said balance sheet.Suit (Com.) No. 225/2019 Page No. 39 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. Defendants did not send any communication to the plaintiff in writing to take back the unsold goods nor they has send any communication in writing before selling the same in loss to scrap dealer and stated that the defendant will recover loss from the plaintiff. Therefore in these circumstances, I do not find testimony of DW1 reliable that he has sold the unsold hose pipes since 2010 or that he sold the same to scrap dealer and thus suffered loss of Rs. 10 lacs. I am agreed with the contention of Ld. Counsel for the plaintiff that the said defence appears to be an afterthought to avoid the payment of goods.
65. One more ground which Ld. Counsel for the defendant has taken is that the plaintiff has charged excess rate and he should have been charged rate of hose pipes at the rate which were fixed in the year 2013. First of all, in my view, the defendant in the written statement has taken no such ground that plaintiff should have charged the rate of hose pipes at the rate of year 2013 hence the same is beyond pleadings. Moreover, as discussed in issue No. 1, DW1 has not filed any document that the defendant asked the plaintiff that it charges excess rate or it should have charge for the goods by the plaintiff to defendant at the rate of year 2013 price list. DW1 in his cross examination has admitted that defendant has send e-mails along with price list of hose pipes as Ex. DW1/11, Ex. DW1/14 and Ex. DW1/15 and the defendant neither stated in the written statement nor in the testimony of DW1 that the defendant has ever asked the plaintiff that it is charging excess and it should charge rate at the price list as in the year 2013 therefore in my view said contention of Ld. Counsel for the defendant that plaintiff should have charged at the rate of the year 2013 is also not tenable. In these circumstances, I held that the defendant has miserably failed to prove its defence that defendant is entitled to adjust its losses and is not liable to pay the amounts of goods sold by plaintiff to defendant no.1 firm Satya & Co.
66. As per the ledger account, a sum of Rs. 4,17,512/- is due as Suit (Com.) No. 225/2019 Page No. 40 of 42 M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. on 8.10.2018 but no suggestion has been given to PW1 that any of the entry mentioned in the ledger is false therefore there is no ground to disbelive the said ledger hence from the said ledger it is evident that a sum of Rs. 4,17,512/- is due as on 8.10.2018.
67. Now question is who is liable to pay the said amount. It is undisputed fact that goods were sold to Satya & Company whose proprietor is defendant No. 1. Therefore he is liable to pay the amount of goods. Whether defendant No. 2 will be also liable to pay the amounts of goods which he purchased on behalf of Satya & Co as contended by Ld. Counsel for plaintiff, undisputedly defendant no.2 dealt with plaintiff for purchase of said goods. The plaintiff neither in the plaint nor PW1 in his testimony depose that defendant No. 2 assure to plaintiff that in case defendant No. 1 firm Satya & Co. failed to make payment of goods then he will be personally liable to make the payment of same. The plaintiff has itself amended the plaint and stated that defendant No. 1 is proprietor of Satya & Co. and has led no evidence that defendant No. 2 is owner of the same. DW1 Vinod Kumar in his testimony has also acknowledged that he is the Manager of defendant No. 1. No suggestion has been given to DW1 by the plaintiff that DW1 is not Manager of the same. Undoubtedly in reply to legal notice it was mentioned that he is Director of Satya & Company but even then he does not become owner of Satya & Co. Hence in these circumstances, I held that plaintiff has failed to prove that defendant No. 2 is liable for payment of amount of goods sold to Staya & Co. In view of the aforesaid discussions, I held that only defendant No. 1 is liable to pay the the amount of goods to the plaintiff.
68. In view of aforesaid discussion, I hold that plaintiff is entitled to decree for recovery of a sum of Rs. 4,17,532/- from defendant No. 1 only and not entitle to recover any amount from defendant No. 2. Issue No. 5 is decided accordingly.Suit (Com.) No. 225/2019 Page No. 41 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr. ISSUE NO. 6.
Whether plaintiff is entitled to pendente lite and future interest @ 24% per annum? OPP.
69. The plaintiff has claimed pendente lite and future interest @ 24% per annum. Though no document has been placed on record that the plaintiff is entitled to recover interest @ 24% per annum however since the defendant has deprived the plaintiff from use of its money and caused wrongful gain to him and caused wrongful loss to the plaintiff therefore, plaintiff is held entitled to recover interest @ 10% per annum on the decretal amount of Rs. 4,17,512/- from the date of filing of the suit till the date of decree and thereafter at the same rate till its realization. Issue No. 6 is decided accordingly.
70. RELIEF.
In view of my findings on aforesaid issues, I held that the plaintiff is entitled to recover an amount of Rs. 4,17,512/- (Rupees four lacs seventeen thousand five hundred and twelve only) only from the defendant No. 1 along with interest @ 10% per annum from the date of filing of the suit till the date of decree and thereafter till its realization Plaintiff is further held entitled to the actual costs of the suit. Plaintiff is not entitle to recover any amount from defendant No. 2. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Kumar Aggarwal)
on 29.11.2024 DJ (Commercial)-01, Central,
THC/Delhi / 29.11.2024
Digitally signed
SANJEEV by SANJEEV
KUMAR
KUMAR AGGARWAL
AGGARWAL Date: 2024.11.29
15:58:22 +0530
Suit (Com.) No. 225/2019 Page No. 42 of 42
M/s. Super Hoze Industries Private Limited Vs. Piare Lal & Anr.