Delhi District Court
Vinod Goel vs M/S Metro Polis Health Care Limited on 20 December, 2016
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER,
SCJ-Cum-RC, (NE) KARKARDOOMA COURTS, DELHI
CS No. 121/11
CIS No. 105010/15
In the matter of:-
VINOD GOEL
Proprietor of Balaji Cargo
Management Service, Having
its office at Balaji House
1/9750 A,Street No. IE, West
Gorakh Park, Shahdara,
Delhi-110032
........... Plaintiff
Through
Sh.Mahesh Katyayan,
Advocate.
VERSUS
M/S METRO POLIS HEALTH CARE LIMITED
F-15, Sector-8, Noida
Utter Pradesh, Pin-201301
Also at:-
250 D, Udyog Bhawan (Behind Glaxo)
Hind Cycle Marg, Worli,
Mumbai, Pin No. 400030
...........Defendant
Through
Sh. Rohit Singhla,
Advocate.
J U D G M E N T
( Suit for Recovery of Rs.1,10,277/-)
1. CIS No. : 105010/15.
2. Under Section : Suit for Recovery
3. Date of institution : 03/08/2011.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011
Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 1/26)
4. Date of Final Order : 20/12/2016.
5. Final Order : Suit partly decreed.
BRIEF FACT
1. Plaintiff filed a suit for recovery of Rs.1,10,277/- alongwith
pendente lite and future interest @ 15 % pa against the defendant.
2. PLAINT
2.1.Inter alia, the facts narrated in the plaint are as under :-
2.2.Plaintiff is proprietor of Balaji Cargo Management Services, in the
business of transportation of goods and defendant availed his
services for transportation of goods from time to time with respect to
which plaintiff maintained statement of account in normal course of
business and as per said statement of account defendant is liable to
pay an amount of Rs.1,10,277/- as on 18.04.2011.
2.3.Despite regular follow up with the defendant company, defendant
company avoided to pay the said amount on one pretext or the
other.
2.4.Legal demand notice dated 04.07.2011 was issued, to which
defendant company replied by reply dated 15.07.2011 and as such
the plaintiff filed the present suit for recovery of Rs.1,10,277/-.
3.WRITTEN STATEMENT
3.1.Defendant company admitted that it availed services of the plaintiff
but denied its liability, stating that due to mishandling of the
consignment booked vide bills no. 1680, 1681 and 1682 all dated
15.02.2007, defendant suffered a loss of Rs.1,62,000/-. Though
defendant company admitted that payment for last consignment
booked vide bill no. 2239 dated 20.12.20101 for an amount of Rs.
22,396/- remains outstanding to be paid by the defendant to the
plaintiff.
3.2.Therefore, defendant denied any liability, except with respect to bill
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011
Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 2/26)
no. 2239 dated 20.12.2010 and further claimed set off of the
damages of Rs. 1,62,000/- which defendant company suffered due
to mishandling of consignment by the plaintiff against the claim of
plaintiff.
4.REPLICATION
Replication to the WS was filed on behalf of plaintiff and the contents
of plaint were reiterated.
5. ISSUES
From the pleadings of the parties, following issues were framed on
26.03.2012:-
5.1.Whether the suit of the plaintiff is barred by limitation? OPP
5.2.Whether the defendant is not liable to pay any amount to the
plaintiff? OPD
5.3.Whether this court has no territorial jurisdiction to try this suit?
OPD
5.4.Whether the defendant is entitled for set off of Rs.1,62,000/- as
mentioned in para 5 of the preliminary objections of WS? OPD
5.5.Whether the plaintiff is entitled for recovery of Rs.1,10,277/- as
prayed for?OPP
5.6.Whether the plaintiff is entitled for the interest on the aforesaid
amount, if so, at what rate and for which period? OPP
5.7.Relief.
6. PLAINTIFF EVIDENCE
In plaintiff evidence, plaintiff himself appeared in the witness box as
sole witness in PE who tendered his examination in chief as Ex.
PW1/A and tendered the following documents:-
• Certificate of Registration u/s 69
of the Finance Act, 1994 Ex. PW1/1
• Statements of account Ex. PW1/1A & Ex. PW1/1B
• Letter dated 18.02.2009 Ex. PW1/2
• E-mail communication dated
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011
Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 3/26)
10.04.2011, 15.04.2011 and
23.11.2010 Ex.PW1/3
• Legal notice dated 04.07.2011 Ex.PW1/4
• Reply to Legal notice dated
15.07.2011 Ex.PW1/5
Thereafter he was cross examined on behalf of the defendant and
PE was closed on 16.01.2013.
7. DEFENDANT EVIDENCE
In defence evidence, Adarsh Deepak appeared in witness box as PW1
who tendered his examination in chief as Ex. DW1/A and he tendered
the following documents:-
• Consignment note dated
15.02.2007 Ex.DW1/1
• Report of Roche with Engineer
Inspection report dated
02.03.2007 Ex.DW1/2
• Copy of the bill and
receipt Ex. DW1/4
• Copy of the invoice of
M/s Asset Health Care
and report of installation Ex.DW1/5
Thereafter he was cross examined on behalf of the plaintiff.
Defendant also examined Saurabh Sharma, Branch Manager,
United India Insurance Company Ltd. Branch as DW2 who
tendered the document Ex. DW2/A and Ex.DW2/B and DE was
closed on 14.10.2016.
THE FINDINGS ON THE ISSUES ARE AS UNDER:-
8. ISSUE No.1:- Whether the suit of the plaintiff is barred by
limitation? OPP
8.1. The onus to prove both this issue was on the plaintiff.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011
Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 4/26)
8.2. In order to prove the said issue, the plaintiff in his affidavit
reiterated the averments made in the plaint and relied upon several
documents to prove his case:
(a) Certificate of registration Ex.PW-1/1
(b) Statement of account Ex. PW1/1A and Ex. PW1/1B
21.08.2004, Ex. PW1/1A
(c) letter dated 08.02.2009 mark C
(d) letter dated 02.05.2009 Ex. PW1/2 Ex.PW-1/4 & 1/5.
(e)E-mails dated 10.04.2011, 15.04.2011 and 23.11.2010 sent by
the plaintiff Ex.PW-1/3
(f) legal notice dated 04.07.2011 Ex.PW-1/4 and its reply dated
15.07.2011 Ex. PW1/5
8.3.The entire case of the plaintiff is based upon statement of account
Ex. PW1/1A and Ex. PW1/1B as the plaintiff has stated in para 3 of
the plaint, as under:-
"That the plaintiff regularly transported the goods of the defendant
and was accordingly maintaining a statements of account in the
normal course of business in the name of the defendant. The
transportation charges were debited in the said account while the
amounts paid by the defendant were credited with the last
payment made being adjusted first against the longest
outstanding bill. As on 18.04.2011 an amount of Rs.1,02,277/-
(Rupees one lac two thousand two hundred an seventy seven)
was outstanding in the name of the defendant in the said
statements of account. The statements of account for the
relevant period are annexed herewith as Annexure-I(collly), the
defendant of the bill which have remained unpaid are given in
letter dated 18/02/2009 and letter dated 09/05/2009 and annexed
herewith as Annexure-II (colly)."
8.4.The first question before the court is : Whether the said
statements of account Ex. PW1/1A and Ex. PW1/1B stand
proved, as objection regarding mode of proof was taken by the
defendant at the time of exhibiting of the said statements?
8.5.It has not been mentioned by the plaintiff while exhibiting the
statement of account as Ex. PW1/1A and Ex. PW1/1B, as to
whether the books of accounts/statement of accounts were properly
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011
Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 5/26)
maintained during the course of business or not.
8.6. It may be noted that under section 34 of Indian Evidence Act,
entries in books of account regularly kept in the course of business,
are relevant whenever they are referred to a matter into which the
Court has to enquire, but such statement shall not alone be
sufficient evidence to charge any person with liability.
8.7.In the judgment titled as Narayanan v. Indian Handloom
Traders, (Kerala) 1999(2) R.C.R.(Civil) 275, it has been observed
by Hon'ble Kerala High Court as under:
'Section 34 of the Indian Evidence Act states that entries in the books
of account regularly kept in the course of business, are relevant
whenever they refer to a matter into which the court has to inquire, but
such statements should not alone be sufficient evidence to charge any
person with liability. This section makes it clear that all entries in the
books of account regularly kept in the course of business are relevant.
But it must be shown that the accounts are in the books, the book must
be a book of accounts and the accounts must be regularly kept in the
course of business. The entries are, however, not by themselves
sufficient to charge any person with liability. It is a piece of evidence
which the court may take into consideration for determining whether the
amount referred to therein was in fact paid by the plaintiff to the
defendant. The regular proof of books and accounts requires that the
clerks who have kept those accounts, or some person competent to
speak to the facts, should be called to prove that they have been
regularly kept and to prove their general accuracy. The quantum of
evidence for corroboration would vary in each case.'
8.8. From the aforesaid judgment, it is clear that the proof of books of
account/statement of account requires that the clerks who have kept
those accounts or some persons competent to speak to the facts,
should be called to prove that they have been regularly kept and to
prove their general accuracy. In the present case, the plaintiff has
not deposed as to who maintained books of account/statement of
account and as to whether the statement of account was maintained
properly during the course of the business and correctly mentions all
the transactions that took place between the parties.
8.9. Thus, plaintiff has failed to depose as regards the genuineness of
statement of account Ex.PW1/1A and Ex.PW1/1B and has not
deposed that said statement of account was maintained during the
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011
Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 6/26)
course of the business and in absence of such deposition the Court
cannot presume the genuineness of the statement of account and
the fact that the statement of account was maintained properly
during the course of the business and includes all the transactions
that took place between the parties.
8.10. In judgment titled as P. Sood & Co. v. Peerchand Misrimalji
Bhansali, (Madras)(DB) 2005(3) R.C.R.(Civil) 64, it was observed
by Division Bench of Hon'ble Madras High Court as under:
31. For proving the plaintiff's case, the plaintiff relied on Ex.P.14.
Ex.P.14 is the stock and sales register of the plaintiff for the year 1992-
1993. It is seen that at page 2 of Ex.P.14, the particulars with regard to
purchase of goods on 3.4.1992 are mentioned under the caption of
sales covering the period 1.4.1992 to 31.3.1993. At page 7, the name of
the defendant's company is mentioned under the caption of stock
covering the period 1992-93.
32. In this regard, the learned counsel appearing for the
respondent/defendant would contend that Ex.P.14 is a created one for
the purpose of this case and that no credence to be attached to this document. One another document relied on by the appellant/plaintiff is Ex.P.7. Ex.P.7 is the challan for payment of Bombay Sales Tax. Since no seal is affixed by the sales tax department on the challan and Ex.P.7 is a Xerox copy, no reliance could be placed on this document for arriving a just conclusion that the said transaction effected between the plaintiff and the defendant is a genuine one.
33. Ex.P.15 is a letter from the auditor of the plaintiff to the Income Tax Department enclosing the Income Tax return for the year 1993-94. Ex.P.15 has been marked by the plaintiff to prove the fact that the plaintiff company filed the income tax return for the year 1993-94, which was prepared by a Chartered Accountant of the plaintiff company. In Ex.P.15, the name of the defendant's company is mentioned. Further, it is mentioned that a sum of Rs. 14,36,156.80 is due by the defendant company to the plaintiff. For proving this fact, the appellant/plaintiff has not examined the author of this document.
34. In support of the contention that the entries made in the account books of the plaintiff company, namely, Ex.P.14 and Ex.P.15, could not be relied on for the reason that the author of those documents has not been examined, the learned counsel appearing for the respondent/defendant relied on the following decisions.
35. In Arulmigu Visweswaraswami and Veeraraghava Perumal Temples, represented by its Executive Officer, Tiruppur, Coimbatore District v. R.V.E. Venkatachala Gounder and another, 1996(1) M.L.J. 553 and in Mettur Beardsell Limited, a Public Limited Company, by its Secretary, Chennai v. M/s. Salem Textiles Limited, a Public Limited Company by its Registered Office at Fair Lands, Salem by its Managing Director, R. Prabhakaran and others, 2001(2) CTC 736 : 2001(2) M.L.J. 432, the learned Judge of this Court, who is also a party to this judgment, observed, when he had an occasion to deal with a similar case, as follows :
"The account books by themselves are not sufficient to charge any person with liability and the party has to show by some independent evidence that the entries in its books represented the real and honest transactions and Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 7/26) that the moneys paid or the transactions took place, in accordance with those entries, inasmuch as none connected with the account was examined, the Court is of the view that entry in the Ledger under Ex.A.10 is not sufficient to accept the case of the plaintiff."
36. Further, in Chandradhar Goswami and Others v. Gauhati Bank Ltd., AIR 1967 SC 1058 (V 54 C 221), the Apex Court held as follows :
"No person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them and the original entries alone under Section 34 of the Evidence Act would not be sufficient to charge any person with liability."
37. As already discussed above, the plaintiff has not come forward to establish his case that the defendant placed orders with the plaintiff one week prior to 3.4.1992 for delivering the goods. Likewise, for taking delivery of the goods by the defendant, the plaintiff has not produced any material. Further, certain documents relied on by the appellant/plaintiff are not in conformity with the relevant facts with regard to the receipt of the goods from the plaintiff company.
38. Moreover, the entries made in Ex.P.7, Ex.P.14 and Ex.P.15 have not been proved by examining the author of those documents.
39. In such circumstances, it cannot be held that the defendant is liable to pay the suit claim to the appellant/plaintiff for purchasing the goods from the plaintiff on 3.4.1992.
8.11. From the aforesaid judgment of Hon'ble Madras High Court, it is clear that the books of account cannot be proved by any person, rather, it has to be proved either by the author of the books of account or by some person under whose authority the books of account were maintained and who could depose as regards the fact required to prove that the accounts were regularly kept and maintained and also to prove their general accuracy. 8.12.Thus, in view of the above discussion and the judgments of Kerala and Madras High Court cited above, it is clear that plaintiff Vinod Goel has failed to prove statement of account Ex. PW1/1A and Ex. PW1/1B.
8.13. Limitation: As regards limitation, the plaintiff has stated that the period of limitation starts from the close of the year in which the last entry in the statement of account was made in view of Article 1 of the Limitation Act. As per the plaintiff, the last entry in the Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 8/26) statement of account Ex.PW1/1A and Ex. PW1/1B is of 20.12.2010 against the last consignment booked on 15.10.2010, the transaction charges of which remained unpaid.
8.14.As per Ex. PW1/1A and Ex. PW1/1B, the defendant was under
liability to pay a sum of Rs. 63925/- as on 31.03.2011, whereas the present suit has been filed for an amount of Rs.1,10,277/- as on 03.08.2011. As per the said statement, the last transaction between the parties took place on 20.12.2010 for an amount of Rs.22,396/-. 8.15.The plaintiff in his cross examination stated that the bills with respect to which dues are outstanding are mentioned in the suit, though in the suit, the details of the said bills have not been disclosed. The plaintiff also testified that in Ex. PW1/2 he correctly mentioned the date of invoices and the said document is therefore relevant document for deciding the present issue. The bill numbers mentioned in letter Ex. PW1/2 dated 09.05.2009 are as under:-
Bill No. Date Amount (Rs.)
1336 31.01.2006 8768/-
1680 15.02.2007 13514/-
1681 15.02.2007 6753/-
1682 15.02.2007 12304/-
1806 31.12.2007 500/-
8.16.Therefore the question which arises before the Court is Whether the limitation period is to be counted from date of the afore-
stated bills 1680 dated 15.02.2007, 1681 dated 15.02.2007, 1682 dated 15.02.2007, 1806 dated 12.12.2007 and 2239 dated 20.12.2010 under Limitation Act OR, Whether the limitation period is to be counted from 20.12.2010 under Section 18 & 19 r/w Articles of Limitation Act, OR, Whether the limitation period is to be counted from 31.03.2011 under Article 1 of Limitation Act?
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 9/26) 8.17. All the three questions as mentioned above are hereby taken up in seriatim:-
8.18. Whether the limitation period is to be counted from 31.03.2011 under Article 1 of Limitation Act?
8.19.Plaintiff in order to establish the claim of Rs.1,10,277/- has filed on record the statement of account of the defendant, maintained by the plaintiff, from 01.04.2005 to 31.12.2011 and the same is Ex.PW-
1/1A. As per the said statement of account, as on 31.03.2008 the amount payable by the defendant was Rs.55,597/- and as on 31.12.2011 the amount due was Rs.63,925/-.
8.20.As per Article 1 of the Schedule to the Limitation Act, a suit for the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties, can be filed within 3 years from the close of the year in which the last admitted or proved entry is made in the account.
8.21.In order to attract Article 1 of the Limitation Act, two conditions are required to be fulfilled namely:-
a) There must be mutual, open and current account between the parties AND
b) There also must be reciprocity of demands.
8.22.An open account is one which consists of series of transactions and which is unclosed by settlement or otherwise. A current account is one which contains items between the parties from which the balance due to one of them is or can be ascertained. Mutual accounts are such as consist of reciprocity of dealings between the parties and do not embrace those having items on one side only, though made up of debits and credits. An account in which one party has merely received and paid moneys on account of the other is not a mutual account so-called. Each party must receive and pay on account of the other. The distinctive features of the mutual Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 10/26) accounts are that there should be two sets of independent transactions--the two parties and in one transaction one of the parties should be the debtor and the other creditor. Whereas in the other transaction the parties should accept the reverse position. The dealings should indicate independent obligations on both sides so that the balance should sometimes be on one side and at other time on the other. Thus for an account to be mutual, open and current account there should be independent transactions resulting in the possibilities of reciprocal demand and shifting balance. 8.23. In Smt. Sukhdei Vs. Naipal Ran AIR 1974 Allahabad 408, A supplied brass sheets to B to the be converted into vessels and returned to A for wages to be paid by A and the accounts show the supply of brass sheets, the return of the finished goods and the payment of wages made by A to B. It was held that such account is not mutual, open and current account because no independent obligations were created between the parties on such transaction. 8.24.The test of mutuality of the account would be such that the dealings between the parties shall be sometime in favour of one and at other times it shall be in favour of others.
8.25.In the present case there is no mutuality of account as there is sale of services from the plaintiff to the defendant and alleged part payment of the money from the defendant to the plaintiff for the said services. Thus in view of the discussion above it is clear that Ex.PW-1/1A and Ex. PW1/1B is not a mutual, open and current account, where there have been reciprocal demands between the parties.
8.26.Thus Article 1 of Limitation Act do not apply to the facts of the present case and the period of limitation of three years cannot be counted from 31.03.2011.
8.27.Whether the limitation period is to be counted from Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 11/26) 15.10.2010 or 20.12.2010 under Section 18 & 19 r/w Articles of Limitation Act?
8.28.As per computerized statement of account Ex.PW-1/1A and Ex.PW1/1B, the last payment which was made by the defendant was on 07.10.2008 of an amount of of Rs.14,068/- against an outstanding of Rs.55,597/-. If the said payment is considered to be acknowledgment under Section 19 of Limitation Act then the period of limitation shall be counted from 07.10.2008 and the present suit will then come within the limitation period of three years, being filed on 03.08.2011.
8.29.As per Section 19 of the Indian Limitation Act, where a payment on account of debt is made before the expiration of the prescribed period by the person liable to pay the debt or by his agent, a fresh period of limitation shall be computed from the time when the payment is made, provided that an acknowledgment of payment appears in the handwriting of, or in the writing signed by, the person making the payment.
8.30.Thus, a part payment of debt amounts to acknowledgment under Section 19 only when an acknowledgment of payment appears in the handwriting of, or in the writing signed by, the person making the payment.
8.31.It has been observed in Sayid Jalaluiddin Vs. Tara Pharmacy, AIR 1996 AP 136, that mere endorsement by the creditor in the account cannot save limitation under section 19 of the Indian Limitation Act.
8.32.An endorsement of payment bearing no signature or mark of the payer is not sufficient for the purpose of Section 19 of Limitation Act. 8.33.Under Section 19 it is the payment which extends the limitation and such payment have to be proved in a particular way, namely, a written or singed acknowledgment. That is the only mode of proof Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 12/26) of such payment. Reliance placed on Arjunlal Vs. Dayaram AIR 1971 Patna 278 and Santlal Vs. Kamlaprasad, AIR 1951 SC 477. 8.34.In the present case, payment has been shown by the plaintiff in the computerized statement of account Ex.PW-1/1A and Ex. PW1/1B, but there is no acknowledgment of payment in the handwriting of, or in the writing signed by, the defendant or its duly authorized agent.
8.35.Thus, the payment made on 07.10.2008 does not save the limitation under Section 19 of Indian Limitation Act and for that reason the period of limitation prescribed by the Statute cannot be counted from 07.10.2008.
8.36.Coming to section 18 of the Limitation Act, as per section 18 where before the expiration of the prescribed period of limitation an acknowledgment of liability is made by the defendant in writing and signed by him, then fresh period of limitation shall be counted from the time when the acknowledgment was so signed. In the present case, the alleged booking of new consignment by the defendant on 15.10.2010 against which amount of Rs. 22,396/- have been debited in the ledger account Ex. PW1/1A on 20.12.2010, does not amount to acknowledgment of the previous liability by the defendant company. An acknowledgment has to be in writing and must clearly acknowledge the existing liability, which in the present case was liability of Rs. 41529/- ( I.e the liability just before the entry dated 20.12.2010 in the ledger account Ex. PW1/1A.). The plaintiff has not filed on record any acknowledgment of the liability by the defendant company and he has not even relied upon, exhibited or proved the bills on the basis of which relevant entries were made in the statement of accounts Ex. PW1/1A and Ex. PW1/1B and which were mentioned in the letter dated 09.05.2009 Ex. PW1/2, or in the E mails Ex. PW1/3. Accordingly, the limitation cannot commence Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 13/26) from the date of last transaction i.e. 15.10.2010 or from the date on which last entry was made in the ledger account 1 i.e. 20.12.2010 for the purpose of the recovery of the dues against the bills of year 2006 and 2007.
8.37. Whether the limitation period is to be counted from date of the afore-stated bills 1680 dated 15.02.2007, 1681 dated 15.02.2007, 1682 dated 15.02.2007, 1806 dated 12.12.2007 and 2239 dated 20.12.2010 under Limitation Act?
8.38. As the answer to the aforesaid questions is in negative, hence the only date from which the period of limitation is to be counted is from the date of actual transactions, if any, between the parties and at best in the present case the said transaction if presumed to have taken place on 31.01.2006, 15.02.2007 or 31.12.2007, the suit for recovery could have been filed on or before 31.12.2010 and as the present suit has been filed on 03.08.2011 hence it is barred by law of Limitation qua bills bearing no. 1680 dated 15.02.2007, 1681 dated 15.02.2007, 1682 dated 15.02.2007 and 1806 dated 12.12.2007. However as regards bill bearing no 2239 dated 20.12.2010 for an amount of Rs. 22,396/-, the suit is well within limitation for recovery of the amount against the said bill. 8.39. Issue no.1 is accordingly decided and it is held that the plaint is not barred by law of limitation, but only a part of the claim, as far as it relates to bills other than bill no. 2239 dated 20.12.2010, is time barred.
9.ISSUE NO.2,4 & 5:-Whether the defendant is not liable to pay any amount to the plaintiff? OPD Whether the defendant is entitled for set off of Rs.1,62,000/- as mentioned in para 5 of the preliminary objections of WS? OPD & 1 Ex. PW1/1A Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 14/26) Whether the plaintiff is entitled for recovery of Rs.1,10,277/- as prayed for?OPP 9.1.All the three issues are taken up together as if it is proved that the defendant was not liable to pay any amount to the plaintiff, either because he had already paid the said amount or because he was entitled for set off, the result would be that the plaintiff would not be entitled to recover the amount as prayed for.
9.2. In order to prove that plaintiff is entitled to recover the amount of Rs. 1,02,277/- from the defendant, the plaintiff as PW1 has only relied upon statement of account Ex. PW1/1A and Ex. PW1/1B. He has not relied upon, exhibited or proved any bill, invoice, voucher etc. in order to prove that the defendant was liable to pay an amount of Rs. 1,02,277/- to the plaintiff as on 18.04.2011. 9.3.As per the statement of account Ex.PW1/1A and Ex.PW1/1B particularly for the period from 01.04.2009 to 31.12.2011, the defendant was liable to pay an amount of Rs. 63,925/- as on 20.12.2010, 31.03.2011 and 31.12.2011. The court has carefully gone through the statement of account Ex. PW1/1A and Ex. PW1/1B and found that nowhere in the statement of account, which is for the period from 01.04.2005 to 31.12.2011, it is mentioned that defendant was ever liable to pay the amount of Rs.1,10,277/-,. The court is unable to understand as to how the plaintiff mentioned the figure of Rs.1,10,277/- to be liability of the defendant as on 18.04.2011 in view of the ledger account Ex. PW1/1A and Ex.PW1/1B.
9.4. Further while deciding issue no. 1 it has already been observed the plaintiff has failed to proved the ledger account Ex.PW1/1A and Ex.PW1/1B, though specific objection regarding mode of proof regarding the said document was taken by the Ld. Counsel for the defendant at the time of exhibiting the ledger account Ex.PW1/1A Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 15/26) and Ex.PW1/B on 16.01.2013. The plaintiff filed on record bill number 1336 dated 31.01.2006, 1680 dated 15.02.2007, 1681 dated 15.02.2007, 1682 dated 15.02.2007, 1806 dated 12.12.2007, on 24.12.2011, but the plaintiff did not rely upon, exhibit or prove the said bills in his evidence as PW1. The plaintiff has not even relied upon the said bills in his affidavit Ex. PW1/A and despite the objection taken by the defendant company in its WS, he merely relied upon the statement of account Ex. PW1/1A and Ex. PW1/1B to prove his claim against the defendant.
9.5.The plaintiff has also failed to explain as to how he arrived at the amount of Rs.1,10,277/- on the basis of ledger account Ex. PW1/1A and Ex. PW1/1B. Therefore, in the opinion of the court, the plaintiff through his testimony and the document relied upon by him in his testimony, could not prove that as on 18.04.2011 the defendant was liable to pay an amount of Rs.1,02,277/- to the plaintiff as the said amount was outstanding in the ledger Ex. PW1/1A and Ex. PW1/1B, which was duly maintained by the plaintiff.
9.6.However, at the same time with respect to the aforesaid bills the defendant admitted that bill no. 1680 dated 15.02.2007, 1681 dated 15.02.2007, 1682 dated 15.02.2007 and 1806 dated 12.12.2007 are correct and that the defendant had booked consignment with the plaintiff as per the said bills. However, the defendant contented that it had already made payment against bill no. 1806 after deducting excess billing amount of Rs.500/- and also that as the consignment against bill no. 1680 dated 15.02.2007, 1681 dated 15.02.2007 and 1682 dated 15.02.2007 was damaged during transit due to negligence and mishandling of the plaintiff, hence defendant suffered loss of Rs.1,62,000/-, which the defendant is liable to recover from the plaintiff and which can be set off against the claim of the plaintiff.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 16/26) 9.7.As all the said four bills bearing no. 1680 dated 15.02.2007, 1681 dated 15.02.2007, 1682 dated 15.02.2007 and 1806 dated 12.12.2007, pertain to the year 2007, hence the plaintiff is barred by limitation from recovering the amount mentioned in the said bills, as has been observed while deciding issue no.1.
9.8.As regard bill no. 239 dated 20.12.2010, the suit is well within the limitation and the defendant has also admitted its liability against the said bill in para 4, 7 & 10 of the application filed by the defendant alongwith affidavit on 30.11.2011. The said paragraphs are reproduced as under:-
Para no. 4 of the application:-
"That without prejudice to aforesaid contention in is most respectfully submitted that the defendant has paid all the invoices of the plaintiff in time and that there is no outstanding in the accounts of the defendant except the freight charges against Bill No. 2239 dated 20.12.2010 amounting to Rs.22,396/-."
Para No. 7 of the application:-
"The defendant has many times requested the plaintiff to release the consignment of the defendant as aforesaid on receipt of the freight chages against Bill No. 2239 dated 20.12.2010 amounting to Rs.22,396/- but the plaintiff neither released the good nor accepted the payment."
Para no. 10 of the application:-
"That the consignment of computer peripherals and diagonsis equipment, by the passage of time is getting wasted and corroded and as such it is in the interest of justice and public good that the consignment be directed to be released to the defendant. The defendant without prejudice to its rights and contention is ready and willing to deposit the freight charges against the bill no. 2239 dated 20.12.2010 amounting to Rs.22,396/- before this court."
9.9.As the defendant has categorically admitted its liability to pay an amount of Rs. 22,396/- against bill no.2239 dated 20.12.2010, hence the plaintiff is entitled to recover the said amount from the defendant company.
9.10.The next question is: Whether the defendant company can claim set off Rs.1,62,000/- against the liability of the defendant Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 17/26) to pay amount of Rs.22396/- against bill no. 2239 dated 20.12.2010?
9.11.The relevant provision regarding set off is contained in order 8 R 6 of Code of Civil Procedure, 1908 and in order to claim set off under the said provision the defendant is required to satisfy certain conditions which are as under:-
a) The suit must be for the recovery of money ;
b) The sum of money must be ascertained ;
c) Such sum must be legally recoverable ;
d) It must be recoverable by the defendant or by all the defendants, if more than one ;
e) It must be recoverable by the defendant from the plaintiff or from all the plaintiffs, if more than one ;
f) It must be exceed the pecuniary jurisdiction of the court in which the suit is brought ; and
g) Both the parties must fill, in the defendant 's claim to set-off, the same character as they fill in the plaintiff' suit. 9.12. The said conditions are discussed in seriatim as under:-
a) The suit must be for the recovery of money : The present suit is suit for recovery of Rs.1,10,277/-.
b) The sum of money must be ascertained : For a set off u/o 8 R 6 of Code of Civil Procedure, 1908 it is necessary that the set off is for an "ascertained sum of money", which means that set off under the said provision can only be for a sum which is fixed, determined and quantified. The set off cannot be claimed for unliquidated damages and mesne profits, as an amount in such cases is not ascertainable until it is determined by the court.
Illustration (c) to (e) to order 8 Rule 6 of Code of Civil Procedure, 1908 are relevant to the issue and reproduced as under:-
"(c) A sues B on a bill of exchange, B alleges that A has wrongfully neglected to insure B's goods and is liable to him in Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 18/26) compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
(d) A sues B on a bill of exchange for Rs.500. B holds a judgment against A for Rs.1,000/-. The two claims being both definite, pecuniary demands may be set-off.
(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs.1000/- from A and claims to set off that amount against any sum that A may recover in the suit. B' may do so, for as soon as A recovers, both sums are definite pecuniary demands."
However, equitable set off for unliquidated damages can be claimed beyond provisions of Order 8 R 6 Code of Civil Procedure, 1908, but subject to another condition i.e. claim of the plaintiff and the claim of set off should arise out of the same transaction. In the present case, the defendant is not entitled to claim equitable set off against bill bearing no.2239 dated 20.12.2010 for the damages qua bill dated 15.02.2007 bearing no. 1680, 1681 and 1682, as the consignments vide bill bearing no. 2239 were separate and independent from the consignments booked vide bill no. 1680, 1681 and 1682 dated 15.02.2007. Further,even for an equitable set off it is necessary that the set off is claimed for an amount which can be legally recovered, whereas in the present case it has already been observed while deciding issue no. 1 that the recovery of any amount against bills bearing no. 1680, 1681 and 1682 dated 15.02.2007 is time barred as the suit has been filed on 03.08.2011, consequently any damages against the said consignment could have been claimed within 3 years from the date of consignment, which had already expired before the defendant claimed set off in the written statement. Therefore the third condition for set off is not satisfied in the present case.
c) Such sum must be legally recoverable : Where a legal set off is claimed u/o 8 R 6 of Code of Civil Procedure, 1908, it is necessary that said amount is legally recoverable by the Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 19/26) defendant from the plaintiff. A sum cannot be said to be legally recoverable if the claim is barred by limitation. In the present case, the set off has been claimed for the damages/loss suffered by the defendant because of the mishandling of the consignment booked vide bills numbers no. 1680, 1681 and 1682 dated 15.02.2007. The said damages could have been claimed only within the limitation period of 3 years from the date when the loss was suffered by the defendant i.e on or about 15.02.2007 and as such the set off claimed in the present suit which was filed on 03.08.2011 is with respect to those losses/damages which could not have been recovered by the defendant by filing a suit, same being time barred.
Therefore the third condition of set is also not satisfied in the present case.
d) It must be recoverable by the defendant or by all the defendants, if more than one : As far as this condition is concerned, the damages/loss if any suffered by the defendant because of negligence of the plaintiff in handling of the consignments booked vide bill no. 1680, 1681 and 1682 dated 15.02.2007, could have been recovered by the defendant.
e) It must be recoverable by the defendant from the plaintiff or from all the plaintiffs, if more than one : As far as this condition is concerned, the damages/loss if any suffered by the defendant because of negligence of the plaintiff in handling of the consignments booked vide bill no. 1680, 1681 and 1682 dated 15.02.2007, could have been recovered from the plaintiff.
f) It must not exceed the pecuniary jurisdiction of the court in which the suit is brought : The said condition stands satisfied as the set off has been claimed for an amount of Rs. 1,62,000/-, which is well within the pecuniary jurisdiction of this court.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 20/26)
g) Both the parties must fill, in the defendant's claim to set-off, the same character as they fill in the plaintiff' suit : This condition also stands satisfied as the relation between the parties in the suit of the plaintiff is that of service provider and customer and the set off has also been claimed in the same character by the defendant, as a customer, against the plaintiff, as service provider. The parties are represented in the plaint as well as in the set off in the same capacity and not in different capacity.
9.13.As all the conditions for legal set off u/o 8 R 6 Code of Civil Procedure, 1908 or for equitable set off, do not satisfied in the present case, hence the defendant, even if entitled to damages of Rs.1,62,000/-, is not entitled to set off the said amount against the legal and established claim of the plaintiff of an amount of Rs. 22,396/-.
9.14.Accordingly, the findings of the court on the aforesaid issues are as under:-
a)Findings on issue no. 2:- The said issue is decided in favour of the plaintiff, however to a limited extent as it is held that defendant is liable to pay amount of Rs. 22,396/- to the plaintiff against bill no 2239 dated 20.12.2010.
b)Finding on issue no. 4:- The said issue is decided in favour of plaintiff and against the defendant as it is held that defendant is neither entitled to legal set off u/o 8 R 6 Code of Civil Procedure, 1908, nor to equitable set off, because the claim of set off is time barred and for an unliquidated/unquantified amount.
c)Findings on issue no. 5:- The said issue is partly decided in favour of the plaintiff as it is held that the plaintiff is only entitled to recovery of amount of Rs.22,396/- from the defendant against bill no 2239 dated 20.12.2010.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 21/26)
10.ISSUE NO.6 :- Whether the plaintiff is entitled for the interest on the aforesaid amount, if so, at what rate and for which period? OPP 10.1.As regards interest, the prayer of the plaintiff needs to be reproduced, which is as under:-
"The plaintiff respectfully prays that the decree for Rs.1,10,277/- alongwith pendentelite and future interest @ 15% pa may also be passed in favour of the plaintiff and against the defendant alongwith such other orders that this Hon'ble Court deems fit and appropriate. The costs of the suit may also be granted".
10.2.The plaintiff has therefore not prayed for interest on the amount of Rs.1,10,277/- for the period prior to the filing of the suit. Further, in the plaint also it has not been mentioned that the plaintiff is entitled to any interest on the said amount for the period prior to the filing of this suit.
10.3.The plaintiff in his affidavit Ex. PW1/A has also not deposed that the plaintiff is entitled to interest at a particular rate for the period prior to the filing of the suit, rather his affidavit is absolutely silent about interest. Coming to his cross examination, the plaintiff deposed as under as regards interest:-
• "It is correct that I have not claimed any interest in letter Ex. PW1/2."
• It is correct that I have never claimed any interest from defendant and for the first time I have mentioned so in my legal notice Ex. PW1/4."
• " I have also not claimed interest in the statement of account annexed with the suit."
10.4.The plaintiff in his cross examination clearly stated that he never claimed interest from the defendant and that statement of account Ex. PW1/1A and Ex. PW1/1B on the basis of which the plaintiff has filed the present suit for recovery of Rs. 110,277/- also does not include any interest.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 22/26) 10.5.Therefore in view of the contents of plaint, of affidavit and cross examination, it is held that the plaintiff is not entitled to any interest prior to the filing of the present suit.
10.6.As regards pendente lite and future interest on the amount of Rs.22,396/- which the plaintiff is entitled to recover from the defendant, it is held that the plaintiff is entitled to interest @ 6% pa on the said amount as he has failed to prove either through oral or through any documentary evidence, that he is entitled to a higher rate of interest, or that some higher rate of interest was agreed to between the parties at the time when the contract of delivery of consignment was entered into between the parties. 10.7.Further the bills filed by the plaintiff on 24.12.2011 (though not relied upon, exhibited or proved), do not mention any agreed rate of interest between the parties for delayed payment. However, GR Ex.PW1/S1 issued by the plaintiff to the defendant also fails to mention any rate of interest on the delayed payment. 10.8.Accordingly the plaintiff is held entitled to pendentelite and future interest @ 6% pa on the amount of Rs. 22,396/- from the date of filing of the suit till its realization u/s 34 of Code of Civil Procedure, 1908 and this issue is decided accordingly.
11.ISSUE NO. 3 :- Whether this court has no territorial jurisdiction to try this suit? OPD 11.1.The onus to prove this issue is on the defendant. 11.2.The plaintiff in para 6 of the plaint has stated that this court has jurisdiction to entertain the present suit and the said para is reproduced as under:-
"That the payments were to be made at Delhi, the terms of the transaction also mentions the jurisdiction of Delhi court only and the registered office of the plaintiff is also in Delhi. Hence this Hon'ble court has jurisdiction to entertain and adjudicated upon the present suit."
11.3.The corresponding para of written statement is as under:-
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 23/26) "That the contents of para no. 6 of the suit are wrong incorrect and hence denied. It is denied that the payments were to be made at Delhi. It is denied that it has been agreed that Delhi courts shall have exclusive jurisdiction as alleged. It is submitted without prejudice that the Hon'ble Apex Court has held that even the agreement between the parties cannot confer the jurisdiction upon a court which does not have the jurisdiction. It is submitted that no cause of action took place within the territorial jurisdiction of this Hon'ble Court and as such this Hon'ble Court does not have necessary jurisdiction to try and entertain the present suit." 11.4.In order to decide this issue the court is required to find out as to whether the cause of action wholly or in part had arisen within the jurisdiction of this court, as it is an admitted fact that the defendant neither has its office within the jurisdiction of this court, nor it placed order for consignment of goods from North East Delhi or to North East Delhi.
11.5.The plaintiff has not claimed that this court has territorial jurisdiction to entertain the present suit because the defendant company carries on business or has its registered office within the territorial jurisdiction of this court. As per para 6 of the plaint, the territorial jurisdiction of this court has been invoked because the payments were to be made by the defendant to the plaintiff at Delhi and because the terms of transaction also mentions the jurisdiction of Delhi Courts.
11.6.As far as the mentioning of jurisdiction of Delhi Courts in the GR Ex. PW1/S1 is concerned, it is a settled law that the parties cannot confer jurisdiction upon a court by agreement, though they may limit the jurisdiction to one court, if the suit could have been filed otherwise in more than one court.
11.7.The question therefore before the court is: Whether the defendant was liable to make payment to the plaintiff at Delhi, because if it so then part of cause of action took place within the jurisdiction of this court and in that case this court has the territorial jurisdiction to entertain the suit present suit?
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 24/26) 11.8.In order to prove the said issue, the plaintiff was cross examined in which the plaintiff admitted the suggestion that all the dealing between the parties always took place either from Gurgaon or Noida Office. The said suggestion is as under:-
"It is correct that dealing with the defendant always took place either from Gurgoan or Noida Office ................... It is wrong to suggest that this court has no territorial jurisdiction to try the present suit or that the suit is erroneously filed before this court."
11.9.In order to prove this issue, the defendant relied merely upon the said cross examination of the plaintiff, however, in the said testimony the plaintiff has merely admitted that the dealings took place FROM Gurgaon and Noida Office and not that the dealings took place AT Gurgaon and Noida Office .
11.10.It may be noted that the plaintiff does not have office at Gurgaon or Noida, he has registered office at Delhi and branch office at Ghaziabad, hence the said testimony of plaintiff does not prove that the entire transaction took place at Gurgaon or Noida I.e beyond the territorial jurisdiction of this court. 11.11.The defendant company has admitted in WS that it made payments to plaintiff ,but it was not clarified as to where the said payments were made, despite the specific allegation of plaintiff that the payments were to be made at Delhi.
11.12.Further the clause in the GR Ex.PW1/X1 that any dispte between the parties shall be subject to Delhi jurisdiction only, raises a presumption that the part of cause of action took place within the territorial jurisdiction of this court, which the defendant company failed to rebut.
11.13.Accordingly, the defendant company failed to discharge the onus cast upon it to prove that no part of the cause of action took place within the territorial jurisdiction of this court and this issue is therefore decided in favour of plaintiff and against the defendant.
Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 25/26) RELIEF
12.In view of the aforesaid findings on issues, the suit of the plaintiff is partly decreed for an amount of Rs.22,396/- with respect to the admitted bill no. 2239 dated 20.12.2010 alongwith pendentelite and future interest @ 6% Per annum on the amount of Rs.22,396/- from the date of filing of suit till its realization.
13.Costs of the suit is also awarded in favour of the plaintiff.
14.Decree sheet be prepared accordingly.
15.File be consigned to Record Room after due compliance.
Announced in the Open Court on 20.12.2016 (S.P.S. LALER) SCJ Cum RC(NE) KKD Courts, Delhi 20.12.2016 Judgment in the Suit for Recovery CIS No.105010 filed on 03.08.2011 Vinod Goel Vs. M/s Metro Polis Health Care Limited (Page No. 26/26)