Delhi District Court
M/S Hilti India Pvt. Ltd vs M/S Milestone Aluminium Company Pvt. ... on 30 October, 2017
IN THE COURT OF SH. POORAN CHAND, ADDITIONAL
DISTRICT JUDGE06, SOUTHEAST DISTRICT, SAKET COURTS,
NEW DELHI
CS No. 8910/16
M/s Hilti India Pvt. Ltd.
having its office at
F90/4, Okhla Industrial Area,
Phase1, New Delhi110020
..... Plaintiff
Versus
M/s Milestone Aluminium Company Pvt. Ltd.
477/E, 12th Cross,
4th Phase, Peenya Industrial Estate,
Bangalore,
Karnataka560058
.....Defendant
Date of institution of Suit : 16.12.2014
Date of judgment reserved : 30.10.2017
Date of pronouncement of judgment : 30.10.2017
CS No. 8910/16
M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 1 of 13
SUIT FOR THE RECOVERY OF RS. 12,80,754/
J U D G M E N T
1.Plaintiff M/s Hilti India Pvt. Ltd. filed the suit for recovery of Rs. 12,80,754/(i.e. Rs.6,63,633/ principal claim and remaining is the interest @24% per annum) against defendant M/s Milestone Aluminium Company Pvt. Ltd. for supply of goods based on purchase order, invoices, delivery challan and statement of account.
FACTUAL MATRIX
2.(i) The factual matrix of the plaintiffs case is that plaintiff is a company incorporated under the Companies Act, 1956 and have filed the present suit through one Sh. Anil Prasad, the then Finance Manager, duly authorized by the company vide resolution passed by Board of Directors dated 30.07.2014.
(ii) that plaintiff company is engaged in the business of manufacture, assemblers, licensers, distributors, marketers, sellers, importers, exporters etc. of gazettes, tools machineries, materials etc. for construction related and other industries.
(iii) that the defendant, a private limited company sometimes in or around CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 2 of 13 March, 2008 started placing orders on the plaintiff for supply of material at the registered office. The terms and conditions available with the product catalog were/are displayed in the website of the plaintiff company. The defendant duly visited the website, read and understood the terms and conditions and after being satisfied started placing orders.
(iv) that the plaintiff company on receiving orders from the defendant promptly supplied the goods at the addresses specified by the defendant and raised invoices for the said supplies. As the defendant was satisfied with the plaintiff product, it continued placing orders from time to time upon the plaintiff for the supply of goods and the plaintiff on receiving such orders, duly supplied the same according to the purchase orders of the defendant.
(v) that detailed statement of goods supplies together with invoice numbers, date, values of invoice, payments made by defendant and other particulars have been set out in ScheduleI annexed to the plaint which forms the part of the plaint as well.
(vi) that the defendant duly received and accepted the goods supplied by the plaintiff without any objection or reservation. In fact the defendant as per the terms and conditions mentioned in the invoices also duly started making CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 3 of 13 payments. However, the defendant was not regular in making the payments. Sometimes the defendant made part payment and sometimes the adhoc payment.
(vii) that as on 23.02.2011 the defendant itself acknowledged its liability as due and payable by it to the plaintiff against the goods/material supplied and invoices raised for an amount of Rs. 6,39,222/ by signing a balance confirmation letter.
(viii) that on 31.12.2012 the defendant has made the last payment for an amount of Rs. 34,727/. In fact the defendant also made payment of Rs. 19,392/, Rs. 80,614/ and Rs. 3,556/ on 31.03.2012, 31,08.2012 and 29.09.2012.
(ix) that the each invoices contains and provides the detailed terms and conditions of payment.
(x) that despite the aforesaid the defendant was not diligent in clearing its admitted dues. Resultantly, the plaintiff called upon the defendant time and again and requested it to clear the dues. Though the defendant agreed to clear the admitted amount as provided in the invoices, however, it neglected on one pretext or the other. Resultantly, an amount to the tune of Rs. 6,63,633/ CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 4 of 13 became due and payable as on 14.07.2014. The defendant made its last payment on 31.12.2012.
(xi) that resultantly the plaintiff was constrained to issue legal notice dated 08.08.2014 seeking recovery of the said invoice amount alongwith contractual rate of interest i.e. 2% per month i.e. 24% per annum as per the terms and conditions of the sale which has been duly acknowledged and accepted by the defendant. Despite serving of legal notice, defendant did not pay any heed to the request of plaintiff through legal notice. Hence, present suit under Order 37 Civil Procedure Code.
3. Pursuant to the summon for judgment served upon defendant, defendant filed an application thereby seeking unconditional leave to defend the suit as it raises a triable issue. The said leave to defend application was allowed by the Predecessor of this court vide order dated 20.10.2015. Defendant was allowed four weeks time to file written statement and case was adjourned for completion of pleading for 18.12.2015.
4. On 18.12.2015, neither the defendant nor his counsel appeared. Even no written statement was filed as directed. Hence, defendant's right to file written statement was closed and defendant was proceeded exparte. On CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 5 of 13 21.04.2017, plaintiff examined PW1 Sh. Jitender Khatri in support of its case, who tendered his evidence by way of affidavit Ex. PW1/A. PW1 has also relied certain documents in his evidence which are Ex. PW1/1 to Ex.PW1/11. Thereafter, the case was renotified for final argument for 03.10.2017.
5. On 03.10.2017, plaintiff filed written submission in support of his argument. It is pertinent that one Sh. Faiz Sherwani, learned counsel for defendant appeared and made oral argument stating that claim of the plaintiff is hopelessly time barred. Learned counsel for plaintiff objected the submissions made by defendant's counsel on the pretext that in this case defendant has been proceeded exparte and it had neither filed any defence nor lead any evidence in support of their contentions hence defendant have no right to be heard in this case. Learned counsel for defendant contended that since he has raised the legal issue (i.e. claim of the plaintiff is time barred), defendant has every right to join the proceeding at any stage despite the fact that it has been proceeded exparte. This court is in agreement with the submissions raised by learned counsel for defendant. It is settled preposition of law that defendant can join proceedings at any state. As CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 6 of 13 defendant has not filed any written statement in this case therefore he can not put his defence, but has every right to address legal argument on the case of plaintiff. Hence, defendant was given liberty to address argument.
6. I heard final argument from both the sides and have perused the records as well as written submissions filed by the plaintiff.
7. On behalf of plaintiff it is argued that purchase orders issued by defendant for supply of goods are proved as Ex. PW1/3 (Colly). The goods were delivered in view of the purchase orders and to prove the delivery of goods, booking/courier receipt and delivery challans are proved as Ex. PW 1/5. The invoices raised by plaintiff upon the defendants are proved as Ex.PW1/4. It is also argued that acknowledgement dated 23.02.2011 issued by defendant is proved as Ex. PW1/6 admitting the liability of Rs. 6,39,222/. It is also argued that plaintiff has also proved the legal notice and postal receipt as Ex. PW1/7 and PW1/8. The authorization i.e. board resolution in favour of PW1 is proved as Ex. PW1/11. Hence, it is prayed that suit of the plaintiff be decreed with cost.
8. On the other hand learned counsel for defendant has argued that the documents relied by the plaintiff has not been proved as per law. It is argued CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 7 of 13 that alleged purchase orders Ex. PW1/3 (Colly) are all photocopies which cannot be exhibited without production of their originals. Even the invoices are also computer generated copies which are also not supported by certificate under Section 65 B Evidence Act. Hence, cannot be read into evidence. It is also argued that statement of account ScheduleI though filed on record is not proved in the evidence. It is further argued that plaintiff filed the present suit on 16.12.2014 and only the amount of invoices raised within three years prior to 16.12.2014 could be claimed in the suit. Therefore, it is submitted that all the invoices except invoice No. 1430501319 dated 28.06.2012 for Rs. 3556/ are beyond the period of limitation. Since plaintiff has not proved the purchase order and invoices as per law, therefore, invoice dated 28.06.2011 can not be read in the evidence. Hence, it is prayed that since plaintiff has failed to prove its claim as per law, suit is liable to be dismissed. To substantiate his argument learned counsel for defendant relied the case law titled as H. Siddiqui (dead) by LR's vs A. Ramalingam, MANU/SC/0174/2011.
9. In this case no issues were framed as defendant did not file any written statement and stopped appearing and was proceeded exparte. CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 8 of 13 Thereafter, plaintiff tendered his affidavit to prove its plaint. To prove its claim against the defendant, plaintiff relied three sets of document i.e. purchase order Ex. PW1/3 (Colly), invoices raised by the plaintiff pursuant to the delivery of goods Ex. PW1/4 (Colly) and the third document is the statement of account mentioned in the plaint as ScheduleI (but not proved on record). I have perused the purchase order Ex. PW1/3 (Colly) all the purchase orders are photocopy. The originals of the same are never produced in the court nor filed. Learned counsel for defendant has contended at the strength of law laid down by the Hon'ble Supreme Court in case H. Siddique (supra) that photocopies can not be proved in the absence of their originals. It is also contended that no plausible reason is placed on record by the plaintiff regarding not producing the original purchase order alleged to be made by defendant. Therefore, even the secondary evidence can not be lead without giving the plausible explanation for not producing the original documents.
10. Hon'ble Supreme Court in H. Siddiqui case (Supra) has held : " Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 9 of 13 at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until, the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide : The Roman Catholic Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712)."
11. This court is in agreement with the submission made on behalf of defendant and is of the considered view that photocopy of the purchase order though proved by the plaintiff cannot be read in evidence relating to content CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 10 of 13 of document. Hence, document Ex. PW1/3 (Colly) cannot be read in evidence being not proved as per law. In the same manner plaintiff has merely filed computer generated copies of the invoices bearing the stamps of the plaintiff's company. But these invoices has also not been proved as per law. Even there is no endorsement on the invoices of the defendant qua receiving the same by defendant. More so no certificate under Section 65 B of Indian Evidence Act is filed in support of the computer generated invoices.
12. Admittedly statement of account filed on record as ScheduleI is not proved which is a computer generated document. The argument of the plaintiff that the averment of the statement of account are also pleaded in the plaint in para 7, 10 and 11 can be read in support of the case of the plaintiff is not sustainable since plaint can not be termed as statement of account. Plaintiff would required to prove the statement of account maintain in regular courts of business separately which is not done so in the present case. More so the statement of account is a computer generated document which is not supported by certificate under Section 65 B of Indian Evidence Act. Hence, statement of account can not be read in evidence since same is not proved. CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 11 of 13
13. Now, I come to the limitation of the claim amount. Admittedly, as per statement of account the last invoice raised is dated 28.06.2012 and first invoice is dated 24.02.2010. It is the case of the plaintiff that the account of the defendant was a running account as the defendant used to make on account payment and not as against bill to bill. It is further contended that defendant made last on account payment for Rs. 34,727/ on 31.12.2012 and the suit is filed on 16.12.2014. The period of limitation shall be computed from the last payment i.e. from 31.12.2012. Hence, claim of the plaintiff is within limitation. This court is not in agreement with the submission of the plaintiff for the simple reason that plaintiff has not proved the statement of account of the defendant maintained in regular court of business therefore, said statement of account even though the particulars of the same are pleaded in the plaint can not be read in evidence. A perusal of the statement of account filed by plaintiff would show that defendant was not making the bill to bill payment and an account payment was made by the defendant. But the fact of the matter is that plaintiff has failed to proved the statement of account. Even plaintiff has not proved the invoices and purchase orders as per law. Even the acknowledgment dated 23.02.2011 for Rs. 6,39,222/ is CS No. 8910/16 M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 12 of 13 also of no help to the plaintiff. Even if we count the limitation of three years from 23.02.2011, even than suit is time barred. In view of these reasons, this court is of view that plaintiff has failed to prove its claim against the defendant. Hence, suit is dismissed leaving parties to bear their own cost. Decree sheet be prepared. Order accordingly.
Announced in Open Court (Pooran Chand)
On this 30th day of October, 2017. ADJ06 (South East)
Saket Courts, New Delhi.
CS No. 8910/16
M/s Hilti India Pvt. Ltd. Vs. M/s Milestone Aluminium Company Pvt. Ltd. Page No. 13 of 13