Delhi District Court
Suit No.: 8434/16 (Old No. 57/13) vs M/S Advance Power Controls Ltd on 19 October, 2016
IN THE COURT OF SH. DEVENDER KUMAR GARG,
JSCCASCJGJ (SHAHDARA), KARKARDOOMA
COURTS, DELHI.
Suit No.: 8434/16 (Old No. 57/13)
Chander Jeet Kamra
Prop. of M/s Kamra Enterprises
At 14/67, Geeta Colony,
Delhi31.
......Plaintiff
versus
1. M/s Advance Power Controls Ltd.
through its directors/authorized signatory
Sh.Vinod Maheswari.
2. Vinod Maheswari
Director/Authorized Signatory of
M/s Advance Power Controls Ltd.
Both At Regd. Office at 25A, PocketC, DDA SFS Flat,
Mayur Vihar, PhaseIII, Delhi96.
Head Office & Works Unit at:
A191, Sector 63, Noida,
Distt. Gautam Budh Nagar, UP.
......Defendants
DATE OF INSTITUTION : 16.02.2013
DATE OF RESERVING THE ORDER : 01.10.2016
DATE OF DECISION : 19.10.2016
Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.1 of 16
SUIT FOR RECOVERY OF RS.76,858.69
(SEVENTY SIX THOUSAND EIGHT HUNDRED
FIFTY EIGHT RUPEES AND SIXTY NINE
PAISE)
JUDGMENT:
1. By this judgment, I shall dispose off suit filed by plaintiff for recovery of Rs.76,858.69 (Seventy Six Thousand Eight Hundred Fifty Eight Rupees and Sixty Nine Paise).
2. Facts necessary for disposal of present suit as per amended plaint are as follows:
(a). The plaintiff is running his business/proprietorship firm under the name and style of M/s Kamra Enterprises and he is the proprietor of the said firm and is authorized to institute/file the present suit. The defendants are/were doing the business of manufacturing & trading of chips puff etc. in the name & style of M/s Advance Power Controls Ltd. and the defendants appointed the plaintiff as super stockiest of East Delhi Area. The defendants used to deliver aforesaid eatable goods for distribution on advance payment basis to the plaintiff and thereafter the plaintiff used to distribute the same to the small dealers of East Delhi Area.
(b). In end of year 2010, the defendants stopped the operation of its above said product in Delhi area and asked the plaintiff to settle the complete transaction/accounts in full and final with the defendants. As per direction of defendants, the plaintiff settled his all claims/damage Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.2 of 16 claim with the defendants and also returned the damaged goods as per the direction of the defendants. On 05.12.2011, the defendants in lieu of discharge of its liability for the above said full and final settlement, issued and handed over total 8 numbers of cheques bearing no.006171 dt. 20.01.2012, 006172 dt. 20.02.2012, 006173 dt. 20.03.2012, 006174 dt. 20.04.2012, 006175 dt. 20.05.2012, 006176 dt. 20.06.2012, 006177 dt. 20.07.2012, 006178 dt. 20.08.2011 (wrongly mentioned as alleged by defendants that it was supposed to be 20.08.2012) all amounting to Rs.20,000/ each and ninth cheque bearing no.006179 dt. 20.09.2012 amount of Rs.16,858.69 all drawn at Axis Bank Ltd. Sector18, Noida, UP with covering letter dated 05.12.2011, to the plaintiff with the assurance that the same will be encashed on its presentation.
(c). On 18.06.2012, the defendants contacted the plaintiff and asked him not to present the cheque i.e. 006176 as well as of next month i.e. 006177 in the bank and assured that the defendants will pay the both cheques amount with the last cheque i.e. on 20.09.2012 and the plaintiff agreed for the same. On 18.08.2012, the defendants asked the plaintiff not to present the cheque of 20.08.2012 i.e. 006178 and requested to present the same in the end of October 2012 and plaintiff accepted the said request. Again on 15.9.2012, defendants again asked the plaintiff not to present the cheque no.006179 dt. 20.9.2012 and requested to present the same in first week of November 2012 and also assured that remaining amount of Rs.60,000/ will also be paid as per oral request by defendants.
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(d). As per assurance of defendants, plaintiff presented cheque no.006178 of dated 20.8.2012 with its banker but the same was returned unpaid with remarks "Instrument outdated" vide memo dated 31.10.2012. The said cheque was also issued with other cheques on same date on 15.12.2011, hence, date was supposed to be 20.8.2012 but it was wrongly mentioned 20.8.2011 by defendants. The plaintiff informed the said fact to the defendants and they assured that amount of this cheque will also be paid in first week of November, 2012.
(e). Subsequently in first week of November, plaintiff presented cheque no.006179 dated 20.9.2012 for Rs.16,858.69, but the same was returned unpaid with remarks "Payment stopped by drawer" vide memo dated 7.11.2012. Thereafter, the plaintiff contacted to the defendants and requested them to pay the entire amount of all the remaining cheques i.e. Rs.76,858.69, but they did not pay any heed to the request of the plaintiff. The defendants issued aforesaid cheques knowingly and intentionally to cheat and defraud the plaintiff and with a malafide intention and now the defendants had rendered themselves to pay interest on the remaining cheque amount since from their dates @ 24% per annum.
(f). Having no option, the plaintiff got served the legal notice dated 30.1.2013 through its counsel through registered A.D. 31.1.2013 and courier on 1.2.2013 which was duly served upon the defendants. Despite the service of the legal notice, defendants neither complained Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.4 of 16 nor replied the same. The plaintiff is legally entitled to recover the above said amount from the defendants.
3. The defendant filed his written statement taking following main pleas:
(a). In preliminary objections, it is stated that proprietary firm M/s Kamra Enterprises, of its own, "does not have any independent identity", and thus the suit so brought by plaintiff in its independent capacity, is not maintainable in present form. The suit is bad U/o 1 Rule 10 CPC for non joinder of necessary parties. The suit is again bad on account of concealment of relevant and material facts. It is stated that the defendant company is a well reputed manufacturer of "Chips & Puff etc." and the plaintiff was appointed as one of their "super Stockiest". The plaintiff abruptly on their whims and fencies, and also without any prior intimation, stopped doing any business with the defendants and thus, in the process, a large chunk of materials lying with them got damaged, for which, the plaintiff was solely responsible.
(b). It is stated that it was plaintiff who had to clear the payments to the small dealers, and when the defendant started getting numerous complaints one after another, alleging non payments of their dues by the plaintiff, the defendant were left with hardly any options, than to stop any further payments to the plaintiff as it was directly affecting the image and reputations of the defendant. The plaintiff was Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.5 of 16 reminded time and again that the defendant's name was being bad named, as they are not clearing the payments of the small dealers, and they should immediately get clearance from them, before expecting any payments from the defendant, however, no such clearance has been either obtained by the plaintiff from the dealer nor given to the defendant and accordingly, the plaintiff is not entitled to any left over payments, till they obtain and hand over the clearance from dealers.
(c). In reply on merits, the defendants did not dispute business transaction between the parties. It is denied that it was the defendant who has stopped the operation as alleged. It is stated that rather it was the plaintiff who for unknown reasons, stopped business transactions with the defendants, without any prior intimation, as a result thereof, a large chunk of goods lying with them got damaged for which plaintiff is solely responsible. It is further stated that the defendants had handed over the cheques in question, as a matter of good gestures, with the understanding that though the defendant had suffered losses because of casual natured approach of the plaintiff in sudden stopping of the transaction with the defendants, however, it was made to understand that the plaintiff would clear all the payments of the small dealer to whom they were to supply the goods and materials.
(d). It is further stated that after issuance of the cheques, the defendant started getting complaint of non payment of their dues by the plaintiff and it was on that account, further payments of the Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.6 of 16 plaintiff was stopped and the plaintiff was asked to obtain clearance report from the small dealer before making further payments, however, till date no such clearance has been either obtained or handed over to the defendants and thus, plaintiff is not entitled to any further payments. It is further stated that the plaintiff itself is liable to compensate the defendants for multiple time losses not only by damaging materials belonging to defendant but also losses of their image and reputation.
4. Replication to the written statement of defendant filed on behalf of the plaintiff wherein the plaintiff denied the averments of the written statement and reiterated the averments of the plaint. It is stated that there is not any kind of dispute between the small dealers and plaintiff before or after the said full and final settlement with the defendants and there is no payment of small dealers is due upon the plaintiff as alleged by defendant. It is further stated that the small dealers were in direct dealing with the plaintiff's company and their claims had already been settled by the plaintiff and before settling the account with the defendants and no claim of any small dealer/sub dealer is pending against the plaintiff's company.
5. After completion of pleadings of both parties, proceeding for admissiondenial of documents was taken place on 25.02.2014, in which, the defendant no.2 for himself and being Director of defendant no.1 admitted the documents i.e. letter dated 5.12.2011 as Ex.C1, Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.7 of 16 cheques bearing no.006176 dated 20.6.2012 as Ex.C2, cheque bearing no.006177 dated 20.7.2012 as Ex.C3, cheque bearing no.006178 dated 20.8.2012 as Ex.C4 and cheque bearing no.006179 dated 20.9.2012 as Ex.C5 total amounting of Rs.76,858.69. Vide the same order dated 25.2.2014, issues were framed by Ld. Predecessor of this court, which are as follows: (1) Whether the plaintiff is entitled for the recovery of the amount so claimed alongwith interest, if any, as prayed for? OPP (2) Whether the suit is bad for nonjoinder of the necessary parties? OPD (3) Relief.
6. Perusal of file would show that vide order dated 26.5.2015, application under Order 6 Rule 17 CPC of the plaintiff was allowed and thereafter, the plaintiff filed amended plaint and amended memo of parties on record. No amended written statement was filed on behalf of the defendant in the present matter.
7. The plaintiff in his evidence has examined himself as PW1 by way of affidavit Ex.PW1/A and he has relied upon documents i.e. covering letter dated 5.12.2011 as Ex.PW1/1, cheques bearing no. 006176 dated 20.6.2012, no.006177 dated 20.7.2012, no.006178 dated 20.8.2012 (wrongly mentioned as alleged by defendant that it was supposed to be 20.8.2012) all amounting to Rs.20,000/ each and cheque bearing no.006179 dated 20.9.2012 of Rs.16,858.69 paise as Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.8 of 16 Ex.PW1/2 (colly), cheque return memos as Ex.PW1/3 (colly), copy of the legal notice dated 30.1.2013 as Ex.PW1/4, postal receipt dated 31.1.2013 and 1.2.2013 are Ex.PW1/5 (colly) and Ex.PW1/6 and returned POD/A.D. card as Ex.PW1/7. Thereafter, evidence of the plaintiff was closed vide order dated 28.8.2015.
8. Defendants in their evidence has examined defendant no.2 Sh.Vinod Maheshwari, Director of defendant no.1 as DW1 by way of affidavit Ex.DW1/1. Thereafter evidence of the defendant was closed vide order dated 03.08.2016.
9. I have already heard arguments from Sh.Ranbir Singh, Ld. Counsel for plaintiff and Sh.M.P. Sinha, Ld. Counsel for defendants and perused entire material available on record carefully.
10. My issuewise findings are as under: Issue No.1 Whether the plaintiff is entitled for the recovery of the amount so claimed alongwith interest, if any, as prayed for? OPP The onus of proving this issue was on plaintiff. The plaintiff has examined himself as PW1 by way of affidavit Ex.PW1/A. Perusal of the file would show that during the process of admission denial of documents at the stage of framing of issues, vide separate proceedings, the defendant no.2 admitted the certain documents i.e. letter dated 5.12.2011 as Ex.C1, cheques bearing no.006176 dated 20.6.2012 as Ex.C2, cheque bearing no.006177 dated 20.7.2012 as Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.9 of 16 Ex.C3, cheque bearing no.006178 dated 20.8.2012 as Ex.C4 and cheque bearing no.006179 dated 20.9.2012 as Ex.C5 total amounting of Rs.76,858.69. There was no need for proving the above said documents as the same have already been admitted during the above said admissiondenial proceedings. Even then, above said documents have been proved as Ex.PW1/1 and Ex.PW1/2 (colly). There is no crossexamination on the documents Ex.PW1/3 (colly), which are cheque return memos pertaining to cheque bearing no.006178 and 006179. During crossexamination of DW1 Sh.Vinod Maheshwari, who is Director of defendant no.1 and defendant no.2 himself, he was shown legal notice dated 30.1.2013 Ex.PW1/4, to which he deposed that same mentions true and correct address of the defendant no.2. In his further crossexamination, he admitted the receiving of above said legal notice Ex.PW1/4, however, he replied that he does not remember whether he had replied the said notice or not. Thus, the plaintiff has proved all of his documents on record.
11. In his crossexamination, DW1 has deposed that the defendants used to deal with plaintiff exclusively and they did not use to deal with the subdealers. He further deposed that supply of above mentioned materials were done only after receiving advance payment from the plaintiff and further deposed that the material was supplied to the subdealers by the plaintiff and payment against the same was also received by the plaintiff only. However, in his volunteered deposition, he deposed that marketing was done by the defendant. During his Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.10 of 16 further crossexamination, DW1 admitted Ex.PW1/1 and identified his signature at point 'A'. He further admitted that cheque numbers mentioned in Ex.PW1/1 was issued by them to the plaintiff after getting settled the matter full and final with the plaintiff. He further admitted that apart from this business transaction, they had no other transaction whatsoever with the plaintiff. It is also admitted that cheques which are mentioned at sr. no.1 to 9 in Ex.PW1/1 were filled by their officials. He further admitted that inadvertently dates of the cheques which are mentioned in Ex.PW1/1, were mentioned in the year 2011, but same were actually 2012 by their staff. He further admitted that date 25.8.2011 was inadvertently mentioned by staff in Ex.PW1/2 i.e. cheque no.006178 of Rs.20,000/. He further admitted that he had not placed any document on record to show the grievance of subdealers in respect of their payment after issuance of the above said cheques. He further admitted that he has also not placed any documents on record to show that he had made any complaint against the plaintiff before any authority or before any court of law and further admitted that neither he can produce the same. He further admitted that he has not placed any such complaint of subdealers against the plaintiff on record. He further admitted that in Ex.PW1/1, it is also not mentioned that cheques in question would be honoured when the plaintiff provides NOC from the subdealers of his area of working to the defendant company. However, in his volunteered deposition, he deposed that it was written on Ex.PW1/1 that cheques Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.11 of 16 mentioned on the same would be cleared only after confirmation from Mr. D.C. Gupta, one of the Directors of the defendant company. He further admitted that in Ex.PW1/1 only deposit of cheque is mentioned after confirmation of Mr. D.C. Gupta. However, he has denied the suggestion that the plaintiff prior to deposit of cheques in question number of times informed telephonically to Mr. D.C. Gupta.
12. This court is of the view that as the confirmation was only required with respect to deposit of cheque, it was the duty of the defendant to get the cheques encashed whenever the cheques were presented within their limitation period being cheques as negotiable instruments and liability attached to the drawer as per the provisions of the Negotiable Instruments Act. Further, no evidence has been brought on record by the defendants that Mr. D.C. Gupta was not informed prior to the presentation of the cheques in question.
13. During his crossexamination, DW1 admitted that above said cheques were issued only after settlement of damaged material, expired material and other material mentioned above. However, he denied the suggestion that he withheld the payment of the plaintiff deliberately without any dispute. In his volunteered deposition, he deposed that the plaintiff had to firstly provide NOCs from the sub dealers to the defendant company. The defendants have failed to bring on record any material to show that the plaintiff was required to show NOCs before taking payment from the defendant. During his Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.12 of 16 further crossexamination, DW1 admitted that till date, he never made any payment to the plaintiff against the cheques which are Ex.PW1/2 (colly) containing 04 cheques of total Rs.76,858.69.
14. No other witness has been examined by the defendants. Nothing material could have been elicited by the defendants from the crossexamination of the plaintiff, who firmly withstood with his case. The defendants have failed to show any document for showing the reason for stopping the payment of the plaintiff which was settled between them vide letter Ex.PW1/1.
15. Perusal of file would show that the plaintiff has made company party as defendant no.1 and Sh.Vinod Maheshwari, Director of defendant no.1 company, as defendant no.2. The averments and evidence are against defendant no.1 i.e. M/s Advance Power Controls Ltd. It is not disputed by both the parties that the defendant no.1 is a company. There are no averments against the defendant no.2 in his personal capacity and hence, no personal liability of the defendant no.2 arises and the liability is of defendant no.1 company only.
16. The issue of interest also includes in Issue No.1. Plaintiff has claimed interest at the rate of 24% per annum w.e.f. respective dates of the cheques. The plaintiff has not placed on record any agreement with respect to the rate of rent and interest to be given in case the payment was not made. It is not disputed that the payment was made by way of cheques which are negotiable instruments under Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.13 of 16 provisions of Negotiable Instruments Act. Section 80 of Negotiable Instruments Act provides as under: "80. Interest when no rate specified.--When no rate of interest is specified in the instrument, interest on the amount due thereon shall, notwithstanding any agreement relating to interest between any parties to the instrument, be calculated at the rate of eighteen per centum per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs."
This court is of the view that in the present case, keeping in view the above said facts and circumstances, it would be in the interest of justice, if interest at the rate of 18% per annum is imposed on the defendant company for the delayed payment.
17. Perusal of the legal notice Ex.PW1/4 would show that same was sent to the defendants in which the plaintiff has claimed amount from the defendants. The receiving of the said legal notice was admitted on behalf of defendants during crossexamination of DW1. In the present facts, it would be appropriate if defendant company is made to make payment of interest at the rate of 18% per annum from the date of legal notice i.e. 30.1.2013 till the date of this judgment. The plaintiff is also entitled for future interest on the amount of Rs.76,858.69 at the rate of 9% per annum as the transaction between the parties was commercial in nature.
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18. Taking into consideration all the facts and circumstances and material available on record, the issue is decided in favour of the plaintiff and against the defendant accordingly.
Issue No.2 Whether the suit is bad for nonjoinder of the necessary parties? OPD
19. The onus of proving this issue was on the defendants. The defendants have examined defendant no.2 Sh.Vinod Maheshwari, Director of defendant no.1, as DW1 by way of affidavit Ex.DW1/1. Perusal of the above said affdiavit would show that there is no deposition with respect to nonjoinder of parties. No evidence has been led with respect to the above said issue and hence, this issue is decided against the defendants and in favour of the plaintiff.
Issue No.3 RELIEF:
20. In view of finding on the issues no.1 and 2, suit of the plaintiff is decreed with costs against defendant no.1 company for recovery of amount of Rs.76,858.69 (Seventy Six Thousand Eight Hundred Fifty Eight Rupees and Sixty Nine Paise) alongwith interest at the rate of 18% per annum for the period w.e.f. 30.1.2013 (date of legal notice Ex.PW1/4) till date of this judgment and thereafter, at the rate of 9% per annum till realization of actual amount. The present Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.15 of 16 suit is dismissed qua defendant no.2. Deficient court fee, if any, be filed within 15 days from today.
21. Let decree sheet be drawn up accordingly.
22. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 19.10.2016 This Judgment contains 16 pages and each page is signed by me.
DEVENDER KUMAR GARG JSCC/ASCJ/GJ (SHAHDARA) KKD COURTS/DELHI Suit No. 8434/16 M/s Kamra Enterprises vs. M/s Advance Power Controls Ltd. & Anr. Page No.16 of 16