Delhi District Court
M/S Crystal Crop Protection Limited vs M/S Om Crop Science on 1 October, 2022
IN THE COURT OF SHRI SANJAY SHARMAI :
DISTRICT JUDGE (COMMERCIAL COURT)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 138/2020
M/s Crystal Crop Protection Limited
B95, Wazirpur Industrial Area
Wazirpur, Delhi - 110052 ................Plaintiff
Versus
1. M/s Om Crop Science
through its proprietor Shri Satish Kumar
2. Mr. Akash Singhal
S/o Shri Satish Kumar
Both at :
88, Vardan Apartments, IP Extension
Patparganj, Delhi - 110 092
Also at :
Plot No. 29, Sector3,
Industrial Area Pithampur,
District Dhar, Madhya Pradesh
Also at :
112, Indore Trade Center,
32, South Tukoganj, Indore
Also at :
368, Royal Krishna Opposite Emerald Heights,
AB Road Rau, Indore ................Defendants
Date of institution : 16.3.2020
Date of reserving judgment : 06.9.2022
Date of judgment : 01.10.2022
CS (Comm) No. 138/2020
Crystal Crop Protection Limited Vs. M/s Om Crop Science 1 of 19
JUDGMENT:
The plaintiff has filed the present suit for recovery of a sum of Rs.87,07,659/ against the defendants alongwith pendent lite and future interest @ 18% per annum. Initially the suit was filed under the provisions of Section 37 CPC. However, it transpired from record that the suit amount as claimed, was the balance which remained due upon the defendants after certain payments were made by them and that the suit was based on ledger account. Thus, vide order dated 17.3.2020, the suit was treated as an ordinary suit for recovery. 1.1 In brief, the facts as averred in the plaint are that the plaintiff is a limited company incorporated under the Companies Act, 1956 and the present suit has been filed by Shri Kaushal Kishore, authorized by Shri Dinesh Kumar Gupta, the Authorized Representative of the Plaintiff company, authorized by virtue of Board Resolution dated 08.3.2019, to verify, sign and institute the present suit. The plaintiff is engaged in the business of manufacturing and trading of pesticides, insecticides, weedicides, herbicides, fertilizers, plant growth regulators, seeds, agri equipment and other cognate and allied agriculture goods (hereinafter referred to as the goods) and has acquired a great reputation and goodwill in the market.
1.2 Defendant No. 1 firm is also engaged in the similar business as of the plaintiff. Defendant No. 2, who is the son of the proprietor of the defendant No. 1 firm namely Shri Satish Kumar, approached the plaintiff for purchase of certain goods, and it has been alleged that he had been doing all the dealings and correspondence on behalf of the proprietor.
CS (Comm) No. 138/2020Crystal Crop Protection Limited Vs. M/s Om Crop Science 2 of 19 1.3 It has been averred that the defendants have been purchasing goods from the plaintiff for the last several years on credit basis and the plaintiff has been maintaining running account of defendant No. 1 and it used to send the statement of accounts to the defendants from time to time. The plaintiff company raised invoices upon the defendants against the supply of the goods which also constitute a written contract and as per the said invoices, defendants were liable to pay the invoice amount within seven days of the date of invoice failing which they were liable to pay interest @ 18% per annum on the overdue amount. 1.4 It has been averred that in order to discharge their liability, the defendants issued three cheques, i.e. Cheque No.202302 dated 30.6.2016 for Rs.22,75,000/, Cheque No.202303 dated 30.6.2016 for Rs.45 lacs and Cheque No.202304 dated 01.7.2016 for Rs.28,50,000/, i.e. totalling Rs.96,25,000/. However, when the said cheques were presented for encashment, same were dishonoured for the reasons 'Funds Insufficient', vide memo dated 18.8.2016. The plaintiff filed separate complaint case under Section 138 of the Negotiable Instruments Act which is pending adjudication in Maharashtra .
1.5 It has been further averred that the in order to settle the matter, defendant No. 2 agreed to pay Rs.94 lacs in installments by 31.3.2017 and also sent an email dated 24.12.2016 in this regard, mentioning the dates and amount to be paid. However, only a sum of Rs.8,25,000/ was paid by the defendants and thus, they failed to clear their liability by 31.3.2017. However, a further amount of Rs.25,000/ was transferred to the plaintiff on 14.5.2017 through bank transfer. Thus, a sum of Rs.87,07,659/ remained outstanding upon the defendants, as CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 3 of 19 per the ledger account maintained by the plaintiff, which they are liable to pay with pendente lite and future interest. Hence the present suit.
2. Defendants were duly served through whatsapp and email on 20.10.2020 and their Counsel Shri Sumit Kumar Advocate entered appearance and filed written statement. It has been claimed that three post dated cheques, as mentioned by the plaintiff, were given by the defendants at the time of purchase of goods but the goods were delivered to the defendants on 14.6.2015, which on checking were found to be defective and this fact was informed to the plaintiff. The plaintiff had already insured the goods and thus, it approached the Insurance Company. Thereafter, the Surveyor inspected the goods on 17.6.2015 which were found to be wet and damaged. The Surveyor gave his report on 18.6.2015. It has further been claimed that the defendants had sent e mails to the plaintiff for the damaged goods vide emails dated 22.6.2015, 23.6.2015, 25.6.2015 and 26.6.2015 but the plaintiff did not lift back the goods intentionally and even held the postdated cheques given by the defendants in lieu of the price of the said defective goods. 2.1 The defendants further claimed the case under Section 138 of the Negotiable Instruments Act, filed by the plaintiff to be false as the same has been filed against Shri Akash Singhal who has no concern with defendant No. 1 firm. The averment of the plaintiff that defendant No. 2 agreed to make payment of Rs.94 lacs by 31.3.2017 to settle the matter has been vehemently denied as also the part payment of Rs.8,25,000/, as alleged by the plaintiff. Rest of the averments made by the plaintiff in its plaint have also been specifically denied.
3. The plaintiff also filed replication to the written statement of CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 4 of 19 defendant, reiterating the contents of the plaint and denying the counter allegations.
4. From the pleadings of the parties, following issues were framed on 24.11.2021 :
1) Whether the plaintiff is entitled for a decree in the sum of Rs.87,07,659/ alongwith interest, if any, and if yes, at what rate and for which period? OPP
2) Whether the plaintiff has no locus standi to file the present suit? OPD
3) Relief.
5. At the trial, both the parties led their evidence. The plaintiff examined Shri Amit Chhetri - Senior Manager, Sales as PW1. He deposed the facts as stated in the plaint, by way of affidavit Ex.PW1/A and also proved various documents which are as under :
Board Resolution of plaintiff in favour of PW1 as Ex.PW1/1
Customer appointment form of defendant no. 1 as Ex. PW1/2.
Invoice No. 140 dated 09.05.2015 alongwith transport receipt as Ex. PW1/3.
Invoices bearing no. 269, 268, 265, 266 & 267 all dated 09.06.2015 alongwith transport receipts and purchase orders bearing no. OCS011/1516 as Ex. PW1/4 (Colly).
Invoice no. 826 dated 11.06.2015 alongwith transport receipt as Ex. PW1/5.
Invoice no. 849 dated 12.06.2015 alongwith transport receipt as Ex. PW1/6.CS (Comm) No. 138/2020
Crystal Crop Protection Limited Vs. M/s Om Crop Science 5 of 19 Invoice no. 292 dated 15.06.2015 alongwith transport receipt as Ex. PW1/7.
Invoice no. 376 dated 04.07.2015 alongwith transport receipt as Ex. PW1/8.
Invoice no. 1518302804 and 1518302805 both dated 08.07.2015 alongwith transport receipt as Ex. PW1/9 (colly).
Invoice no. 1880 dated 14.08.2015 alongwith transport receipt and purchase order bearing No. OCS76/1516 dated 05.08.2015 as Ex. PW1/10.
Invoice no. 2146 dated 10.09.2015 alongwith transport receipt as Ex. PW1/11.
Cheque bearing no. 202302 dated 30.06.2016 alongwith return memo dated 18.08.2016 as Ex.
PW1/12 (colly).
Cheque bearing no. 202303 dated 30.06.2016 alongwith return memo dated 18.08.2016 as Ex.
PW1/13 (colly).
Cheque bearing no. 202304 dated 01.07.2016 as Ex. PW1/14 (colly).
Certified copy of memo of complaint bearing No. 3483/2016 under Section 138 NI Act before the Court of Ld. CJM, Akola as Ex. PW1/15 (colly).
Certified copy of Memo of complaint bearing No. 3579/2016 under Section 138 NI Act before the Court of Ld. CJM, Akola as Ex. PW1/16 (Colly).
Certified copy of Memo of complaint bearing no.
3580/2016 under Section 138 NI Act before the Court of Ld. CJM, Akola as Ex. PW1/17 (Colly).
CS (Comm) No. 138/2020Crystal Crop Protection Limited Vs. M/s Om Crop Science 6 of 19 Email dated 24.12.2016 as Ex. PW1/18.
Ledger account of defendant no. 1 firm as maintained by the plaintiff as Ex. PW1/19 (colly).
Certified copy of statement of bank official alongwith documents pertaining to bank account of defendant no. 1 firm provided by the concerned bank official at the time of evidence in Complaint Case before Ld. CJM, Akola under Section 138 NI Act as Ex. PW1/20. (colly).
Sales tax registration form of defendant no. 1 firm as Ex. PW1/21.
Certificate under Section 65B of the Indian Evidence Act as Ex.PW1/PA.
6. The defendants examined Shri Satish Kumar - proprietor of defendant firm as DW1. He supported the version as appearing in the written statement and proved the following documents :
Copy of Aadhar Card as Ex.DW1/1. (OSR) Purchase order dated 05.6.2014 as Ex.DW1/2. (Already exhibited as Ex.PW1/4 in statement of PW1).
Copy of email dated 15.6.2015 as Ex.DW1/3.
(Already exhibited in crossexamination of PW1 as Ex.PW1/DA) Copies of photographs as Ex.DW1/4 (colly.) (8 pages).
Certificate under Section 65B of the Indian Evidence Act in support of computer generated documents as Ex.DW1/B .
CS (Comm) No. 138/2020Crystal Crop Protection Limited Vs. M/s Om Crop Science 7 of 19
7. I have heard Shri Gaurav Barathi - Ld. Counsel for the plaintiff and have also gone through the written submissions filed by him and filed by Shri Mahmood Hasan - Ld. Counsel for the defendant, who did not address oral arguments. I have also gone through the records of the case.
My issuewise findings are as under:
ISSUE No.2 :
8. It was submitted by Ld. Counsel for the defendant in the written arguments that PW1 could not prove the fact as to who signed and verified the plaint. It was further submitted that as per record, Shri Kaushal Kishore signed and verified the plaint but the resolution authorizing him has not been proved nor mentioned in the statement of PW1 who even failed to prove the fact that he was authorized by the plaintiff company to depose in this case. It was also submitted that the resolution authorizing PW1 and Shri Kaushal Kishore has not been proved as per law.
8.1 It is averred in the plaint that the plaintiff company vide Board Resolution dated 08.3.2019 authorized Shri Dinesh Kumar Gupta to appoint, authorize any representative on behalf of the plaintiff and accordingly, Shri Dinesh Kumar Gupta, vide letter dated 12.3.2020 authorized Shri Kaushal Kishore to sign, verify and institute the present suit on behalf of the plaintiff company.
8.2 On 23.4.2022, an application was filed by the plaintiff for substitution of the AR on the premise that the earlier AR Shri Kaushal Kishore has left the services of the plaintiff company and in his place, Shri Amit Chhetri has been appointed as the new AR. The sad CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 8 of 19 application was allowed.
8.3 PW1 in his examinationinchief by way of affidavit, deposed that the Board of Directors of the plaintiff company vide Resolution dated 07.4.2022 authorized him to sign, verify and institute the present suit on behalf of the plaintiff company. The said Resolution was proved as Ex.PW1/1. The said Shri Kaushal Kishore was authorized to file the present suit by Shri Dinesh Kumar Gupta - the Company Secretary of the plaintiff company, who was so authorized vide the Board Resolution of the company dated 08.3.2019. The Resolution vide which Shri Dinesh Kumar Gupta authorized Shri Kaushal Kishore to file the present suit, is on record dated 12.3.2020. In the written statement, the defendant merely denied that Shri Dinesh Kumar Gupta is not an authorized representative of the plaintiff and further that Shri Kaushal Kumar was not authorized to sign , verify and institute the present suit. Thus, it was only a bare denial.
8.4 As per Order 8 Rule 3A (2) CPC, as amended by the Commercial Court Act, the defendant in his written statement shall state which of the allegations in the particulars of plaint he denies, which allegations he is unable to admit or deny, but which he requires the plaintiff to prove, and which allegations he admit. SubRule (3) further provides that where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he intends to put forwards a different version of events from that given by the plaintiff, he must state his own version.
8.5 The Proviso to Rule 5 provides that "Provided further that CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 9 of 19 every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except against a person under disability."
8.6 Similar under Order 8 Rule 5 CPC, it is provided that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. It is, thus, observed that the defendant has merely denied simplicitor that Shri Dinesh Kumar Gupta is not the authorized representative or Shri Kaushal Kishore is not authorized to verify or institute the present suit, without any necessary implications. The defendants have further failed to give reasons for the said denial and have also not put forward any different version of the events, that given by the plaintiff. Hence, the objections raised in the final arguments or even in the crossexamination of PW1 are beyond pleadings and against the scope of Order 8 Rule 3A CPC.
8.7 On the other hand, the pleadings of the plaintiff and the chain of events is clear. The Board of Directors of the plaintiff company authorized Shri Dinesh Kumar Gupta - the Company Secretary, vide Resolution dated 08.3.2019, to appoint any person to file, verify and institute the suit who accordingly, vide authority letter dated 12.3.2020, authorized Shri Kaushal Kishore to file the present suit and he thus, filed the present suit. During the pendency of the suit, Shri Kaushal Kishore left the services of the plaintiff company and accordingly, Shri Amit Chhetri was appointed as the new authorized representative of the CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 10 of 19 plaintiff company vide Board Resolution dated 07.4.2022 Ex.PW1/1. The certified copy of the said Resolution is signed by Shri Vikram Singh - Company Secretary and there is no infirmity in that as the Company Secretary is authorized to sign the copies of the Resolution as per the Company Law. It was only on the strength of the said Resolution that PW1 deposed in the present suit. Thus, the objection raised in this regard by the defendant is neither tenable under law nor on facts. 8.8 The second objection under this issue was also taken by the defendant in the written arguments that all the dealings of the defendants took place with Crystal Crop Protection Pvt. Ltd. and all the documents such as, invoices etc., filed by the plaintiff are in the name of the said company whereas the present suit has been filed by M/s Crystal Crop Protection Limited which is a different entity and the defendants never dealt with it. It was also pointed out that PW1 admitted both the said companies are different. It has been submitted that no document has been placed on record if Crystal Crop Protection Private Limited merged into Crystal Crop Protection Limited.
8.9 In the crossexamination, PW1 deposed that the present case has been filed by Crystal Crop Protection Limited. He denied the suggestion that Crystal Crop Protection Pvt. Ltd. and Crystal Crop Protection Limited are not one and the same company. He further deposed that the name of the company Crystal Crop Protection Pvt. Limited changed into Crystal Crop Protection Limited but could not remember the year when it as so changed. Thereafter, there was no further crossexamination of this witness on this point. 8.10 It is, thus, clear that the name of the plaintiff company was CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 11 of 19 not changed but the word 'Private' was deleted from its name, meaning thereby from a Private Limited Company, it became a Public Limited Company. According to Section 13 (2) of the Companies Act, 2013, no approval of the Central Government in writing is necessary when the only change in the name is the deletion therefrom, or addition thereto, of the word 'private', consequent on the conversion of any one class of companies to another class in accordance with the provisions of the said Act. Thus, the provision clarifies that a company can delete or add the word 'private' without any written approval of the Central Government. 8.11 Ld. Counsel for the plaintiff placed on record the fresh certificate of incorporation issued after change of name/conversion of the company, as aforesaid, at the time of final arguments. Reference is also required to be made to Section 18 of the Companies Act which provides for such conversion . Section 18(3) of the Companies Act provides as under :
"The registration of a company under this section shall not affect any debts, liabilities, obligations or contracts incurred or entered into, by or on behalf of the company before conversion and such debts, liabilities, obligations and contracts may be enforced in the manner as if such registration had not been done."
8.12 In Zasha Advertising Pvt Ltd vs Abhijit Roy dated 29 November 2019 (in RFA No. 337/2019), the Hon'ble High Court of Delhi in similar circumstances referred to the provisions of Section 23(3) of the Companies Act which provides that the change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against it; and any legal proceedings which might CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 12 of 19 have been continued or commenced by or against the company by its former name maybe continued by or against the company by its new name.
It was held by the Hon'ble Court that :
"11. A bare perusal Sub clause (3) Section 23 (supra) clarifies that change of name obviously will not debar the company under the new name, to sue for any claim under the old name; as a mere change of name has no other consequential legal effect.
12. The change of name of a company shall never affect its rights or obligations, as in the present case, any rights or obligations, carried out by the Appellant in its previous name shall not affect its rights and obligations by merely changing its name and which shall pass on to the same company under the new name. Moreso, it is alleged the purchase order were received when application for change of name was pending before Registrar of Companies, though such application, if accepted would relate to the date of application."
8.13 Firstly, this objection was never taken by the defendant in the written statement and therefore, is beyond pleadings and secondly, in view of the above provisions and the findings of the Hon'ble High Court of Delhi, the plea is not tenable. The plaintiff company was well within its right to sue the defendant for the claim due in its erstwhile name. Thus, it cannot be said that the plaintiff had no locus standi to file the present suit. This issue is accordingly decided against the defendant. ISSUE No.1 :
9. It is the case of the plaintiff that it had supplied material/goods to the defendant company and maintained running account for the same which was remitted to the defendant from time to time which they used to verify. It is further the case of the plaintiff that in CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 13 of 19 discharge of its liability, defendant No. 1 issued three cheques for various amounts in favour of the plaintiff which were dishonoured on presentation and thereafter, pursuant to several discussions, defendant No. 1 agreed and admitted to pay a sum of Rs.94 lacs in full and final settlement of all the claims. Accordingly, defendant No. 2 sent an email dated 24.12.2016 acknowledging the said amount and assuring to pay the same in installments by 31.3.2017. However, it paid only Rs.8,25,000/ and subsequently, made a part payment of Rs.25,000/ and hence, the present suit has been filed for the balance amount of Rs.87,07,659/ with interest.
9.1 The defendant has denied the claim on the ground that the goods supplied to it were defective which fact was duly informed to the plaintiff vide email dated 15.6.2015. It is further submitted that since the said goods were insured, the insurance company was informed by the plaintiff and a joint inspection was conducted. Thereafter, the plaintiff company received the insured amount for the entire consignment but failed to replace the defective goods and also failed to place on record the inspection report or the settlement of claim letter and hence is not entitled to receive the suit amount.
9.2 The present suit has been filed against a proprietorship firm M/s Om Crop Science through its proprietor Shri Satish Kumar. Defendant No. 2 Shri Akash Singhal has been arrayed as a necessary party since it has been claimed by the plaintiff that all the transactions with the plaintiff company were undertaken by him, representing himself to be the proprietor of defendant No. 1 firm. It is submitted that even the customer appointment form was also signed by him as the Head Contact CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 14 of 19 Person of defendant No. 1. All the emails were also issued by him mentioning himself to be the proprietor of defendant No.1. However, later, when the complaint case under Section 138 of the Negotiable Instruments Act was filed by the plaintiff company, it was revealed that defendant No. 2 is the son of the proprietor of defendant No. 1 firm namely Shri Satish Kumar. The documents on record verify this fact. 9.3 In the crossexamination, DW1 deposed that defendant No. 2 Shri Akash Singhal is his son and he worked with him in his firm for sometime between 2014 and 2015 when he was learning business and also after 2015. In regard to the customer application form Ex.PW1/2, he deposed that it was filled by him but the Contact Person has been named as Akash Singhal therein. He denied the invoices Ex.PW1/3 to PW1/11 as well as the transport receipts and purchase orders and deposed that no goods were supplied to him vide these invoices. This deposition was contrary to his pleadings wherein the supply of goods has not been denied but a defence has been taken that the goods supplied were defective. Similarly, he deposed that the cheques Ex.PW1/12 to PW1/14 were though issued by him but were given in blank and as security. This is again contrary to his pleadings since in the written statement, it is admitted that defendant No. 1 gave the said three postdated cheques at the time of purchase of goods and the goods were delivered to the defendant on 14.6.2015 but were found to be defective. Thus, DW1 raised a totally new plea and contrary to his pleadings. 9.4 DW1 was confronted with the email dated 24.12.2016 Ex.PW1/18 but he deposed that he had nothing to say about it. He denied that it was sent by Shri Akash Singhal to the plaintiff but admitted that CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 15 of 19 the email address of the said email belonged to him. He denied that it was sent by him. In the said email, Shri Akash Singhal, defendant No.2, representing himself as proprietor of defendant No. 1, acknowledged the overdue amount of Rs.94 lacs payable to the plaintiff and gave the schedule of payment of the said amount alongwith the details of the part payments made. Once DW1 admitted that the said email was sent on his email id and deposed that he had nothing to say about it, an adverse inference has to be drawn that he was willfully avoiding to answer or admit the same. He already admitted that Akash Singhal was his son and helping in his business. Therefore, the fact that the said email was sent by defendant No. 2 on behalf of defendant No. 1 cannot be disputed. 9.5 Similarly, DW1 was confronted with the ledger account of the plaintiff company Ex.PW1/19 but again he deposed that he can not say anything about it as he was not provided with the account details. This is again contrary to the records and the email dated 24.12.2016 Ex.PW1/18. He simply tried to avoid the said document. This witness was asked if he could produce his statement of account for the period 01.4.2014 to 17.1.2020 but he refused. Thus, an adverse inference has to be drawn against him.
9.6 DW1 was again confronted with Ex.PW1/DA which is an e mail dated 18.12.2020 sent by Shri Akash Singhal to the plaintiff verifying the receipt of goods but in wet condition. The witness admitted the said document.
9.7 It is further observed that the defendants in the written statement have simply denied their liability to pay the suit amount which is again a bare denial and is against the law as referred to herein above. It CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 16 of 19 is otherwise clear from the pleadings of the parties, the documents on record proved by the plaintiff and the deposition of the witnesses that the plaintiff has been able to prove that it had supplied goods to the defendants and the defendants admitted their liability to pay a sum of Rs.94 lacs to the plaintiff. The plaintiff has relied upon various invoices Ex.PW1/3 to PW1/11 which were never questioned in the cross examination of PW1 and hence, were deemed to be admitted, though DW1 denied that goods were supplied against those invoices. 9.8 The only defence taken by the defendant is that the goods so supplied were defective and the plaintiff was reimbursed for the entire value of the goods by the Insurance Company and therefore, the defendants are not liable to pay anything. The plaintiff has not denied that the goods, when they were received by the defendants, got damaged in the transit due to seepage of rain water and this fact was promptly informed to it by the defendants. It is also not denied by the plaintiff that the said goods were insured and the Insurance Company was promptly informed. It is also admitted by both the parties that a Surveyor was appointed and a joint inspection of the damaged goods was conducted. Even DW1 in his crossexamination admitted the said joint inspection and placed on record such report dated 18.6.2015 Ex.DW1/PA. The quantity of the damaged goods is mentioned therein. He further deposed that the said inspection was conducted in his presence and with his consent. The said report was admitted by both the parties. 9.9 PW1, in his crossexamination, though admitted that the Surveyor's report and inspection report of the Insurance Company was not placed on record but deposed that it finds mention in the email of the CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 17 of 19 defendant Ex.PW1/DB. The said email was sent by the Surveyor firstly to the plaintiff who forwarded the same to the defendants and was duly received by them. In the said email, the net loss was assessed by the Insurance Company at Rs.9,51,413.67p. This document/email has been filed by the defendants. The plaintiff in its ledger account Ex.PW1/19, has given a credit of the said amount (Rs.9,51,414/) to the defendants. It is also to be noted that the defendants vide email dated 24.12.2016 Ex. PW1/18, had admitted the liability after their email containing assessment of loss Ex.PW1/DB which is dated 18.12.2020. As already aforesaid, the said ledger account has not been denied by DW1 nor it has been disputed or questioned in the testimony of PW1 and again there was a bare denial of the said ledger account in the written statement. Hence, the suit amount has been ascertained after giving due weightage and credit of the amount received by the plaintiff for the damaged goods and the part payments made by the defendants from time to time. Thus, the plaintiff has been successful in proving that the defendants are liable to pay the suit amount.
9.10 The plaintiff has also claimed interest @ 18% per annum on delayed invoices which is part of the terms and condition of the invoices and mentioned therein. Hence, the plaintiff is entitled to interest at that rate on the suit amount. This issue is decided accordingly. ISSUE No.3/Relief :
10. In view of the findings made herein above, the suit of the plaintiff is decreed in the sum of Rs.87,07,659/ alongwith interest @ 18% per annum from the date of filing of the present suit till the realization of the decretal amount. However, since it has come on record CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 18 of 19 that defendant no.1 is a proprietorship firm of Sh. Satish Kumar and Defendant No.2 is only his son, no decree can be passed against Defendant No. 2. Hence the suit is decreed only against Defendant No.1. Costs of the suit are also awarded to the plaintiff.
Decree Sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 01st day of October 2022 (SANJAY SHARMAI) District Judge (Commercial Court) East District Karkardooma Courts, Delhi CS (Comm) No. 138/2020 Crystal Crop Protection Limited Vs. M/s Om Crop Science 19 of 19