Delhi District Court
Mr. Kapil Chanana vs M/S M. V. Omni Projects (India) Ltd on 17 January, 2020
IN THE COURT OF SHRI RAJ KUMAR: ADDITIONAL DISTRICT
& SESSIONS JUDGE, WEST(01) DELHI
Suit No. 480/2018
Mr. Kapil Chanana
Proprietor of M/s S. K. Timber Traders
having his office at ¼, W.H.S. Kirti Nagar,
Timber Market, Ring Road, New Delhi-110015
Email ID : [email protected]
Mobile No.9899056655 ........... Plaintiff
VERSUS
1. M/s M. V. Omni Projects (India) Ltd.
Through its Manager Mr. Satya Ranjan Giri
A-201, 202 Shivalik Yash 132 FT. Ring Road,
Opp. Shashtri Nagar, Brts Bus Stand,
Ankur, Naranpura, Ahmedabad
Gujrat-380013
Email ID: [email protected]
Mobile No. 7927470098, 7927470199
2. Mr. M. C. Pandey,
Managing Director of M/s M V Omni Projects (India) Ltd.
having its registered office at
A-201, 202 Shivalik Yash 132 FT. Ring Road,
Opp. Shashtri Nagar, Brts Bus Stand,
Ankur, Naranpura, Ahmedabad
Gujrat-380013
Email ID: [email protected]
Mobile No. 7927470098, 7927470199
........ Defendants
Date of institution of the suit : 25.04.2018
Date on which order was reserved: 08.01.2020
Date of decision : 17.01.2020
SUIT FOR RECOVERY OF RS.18,11,446.20(RUPEES
EIGHTEEN LAKH ELEVEN THOUSAND FOUR HUNDRED
FOURTY SIX RUPEES AND TWENTY PAISA ONLY) WITH
FUTURE INTEREST
Suit No. 480/18 Page No. 1/10
JUDGMENT
1. The facts in brief, necessary for the disposal of the present suit for recovery filed by the plaintiff are that the plaintiff is the sole proprietor of M/s S. K. Timber Traders. It has been further stated that the plaintiff is dealing in renting of construction equipments, on hire basis, such as Shuttering Plats, Scaffolding, Props, Cup Lock U Jack, Base Jack etc. 1.1 It has been further stated that the defendant no.1 is a company duly registered with the Registrar of Companies under the Companies Act and the defendant no.2 is the Managing Director (MD) of the defendant no.1 who is responsible for the day to day affairs of the defendant no.1 company. It has been further stated that the defendants had placed work orders with the plaintiff for supplying of Standard, Channel, Shuttering Plates, Prop. Etc at their site i.e. CISF-GBS Complex Mahipal Pur, Delhi which was the project being undertaken by the defendants. It has been further stated that the plaintiff had been supplying the shuttering material from time to time as per defendants' demand on hire basis and the same was duly acknowledged by the defendants' authorized representative available at the said site. 1.2 It has been further stated that the invoices were being issued by the plaintiff in due course of business and the same were being confirmed by the defendants. It has been further stated that the defendants were making regular payments to the plaintiff on account basis. It has been further stated that the plaintiff has been maintaining a computerized running/open, mutual and Suit No. 480/18 Page No. 2/10 current account of the defendants. It has been further stated that as per the statement of account of the defendants, a sum of Rs.18,11,446.20 is due and payable by the defendants as on 31.12.2017. It has been further stated that the plaintiff issued a legal notice dated 31.01.2018 to the defendants but the defendants failed to comply with the same.
2. On the basis of the above said allegations as contained in the plaint, the plaintiff has prayed for a decree for an amount of Rs. 18,11,446.20/- together with the pendente lite and future interest @ 24% per annum from the date of the filing of the present suit till the date of the realization of the decreetal amount. The plaintiff has also prayed for the costs of the suit.
3. In pursuance to the summons issued by this Court, the defendants appeared before this Court and filed the written statement. The defendants, in the written statement, have taken a number of preliminary objections such as that the plaintiff has not come to the court with clean hands and that the present suit is without any cause of action. However, the defendants have admitted that the work order dated 30.12.2013 for supplying of channels, shuttering plates, prop. etc. was given by the defendants to the plaintiff. It has been further stated that the defendants have paid the charges for the materials to the plaintiff as per the use and demand from time to time.
4. It has been further stated that in August, 2015, the defendants informed the plaintiff that the defendants further did not require the material of the plaintiff. It has been further stated that since the material was taken by the defendants on hire basis, the Suit No. 480/18 Page No. 3/10 defendants requested the plaintiff that the materials on the site may be carried back by the plaintiff. It has been further stated that the defendants have not used the materials of the plaintiff since August, 2015 and the same was informed to the plaintiff in advance but the plaintiff did not carry back the unused materials from the site irrespective of several requests.
5. It has been further stated that when the plaintiff failed to take back the material, the defendants started returning the material to the plaintiff at the own cost of the defendants. The defendants have taken the plea that the present suit has been filed on the basis of fake and forged computer generated bills. The defendants have denied that the defendants are liable to pay the amount of Rs.18,11,446.20/- to the plaintiff. The defendants have taken the stand that the entire amount has already been paid by the defendants to the plaintiff. The rest of the contents of the plaint have been denied by the defendants and it has been prayed that the suit of the plaintiff be dismissed with costs.
6. Replication has been filed by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement of the defendants.
7. From the pleadings of the parties, the following issues were framed by this court on 16.10.2018:-
1. Whether the suit of the plaintiff is not maintainable in view of preliminary objections No. 4 and 5 of the written statement? OPD
2. Whether the plaintiff is entitled for Suit No. 480/18 Page No. 4/10 recovery for an amount of Rs.18,11,446.20/-
alongwith the interest, as prayed for, by the plaintiff in the plaint? OPP.
3. Relief.
EVIDENCE :
8. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex.PW1/A; Work Order no.
00023 dated 23.06.2011 issued by the defendants as Ex.PW1/1; original delivery challans as Ex. PW1/2 to Ex. Ex. PW1/52; original challans as Ex. PW1/54 to Ex.PW1/58; computer generated invoices as Ex. PW1/59 to Ex. PW1/68; Computer generated statement of account/ledger account of the defendants as Ex. PW1/69 to Ex. PW1/70; copy of statement of TDS deposited by the defendants towards the material supplied by the plaintiff as Mark A(colly running into 3 pages); communications issued by the plaintiff to the defendant along with original postal receipts as Ex. PW1/71 to Ex. PW1/72; office copy of legal demand notice dated 31.01.2018 along with its postal receipts of the same date and the tracking report of the same as Ex. PW1/73 (colly running into 9 pages); certificate u/s 65B of Indian Evidence Act as Ex. PW1/74; photocopy of gate pass no. 2424 dated 14.01.2017 issued by the defendant as Mark B; photocopies of the gate passes as Ex. PW1/75 to Ex. PW1/93 (OSR) and computer generated copy of statement of material as Ex. PW1/94 (colly running into 11 pages).
Suit No. 480/18 Page No. 5/109. In the cross-examination done by the defendants, PW- 1 states that he does not remember the exact date as to when the defendants had placed the work order with the plaintiff for supplying of shuttering material. PW-1 admits it to be correct that the shuttering material was to be supplied at CISF, GBS Complex, Mahipal Pur, Delhi. PW-1 further states that as per the demand/requirement of the defendant, the material was supplied by him. PW-1 further states that the terms and conditions are already mentioned in the work order Ex. PW1/1. By way of volunteer, PW-1 states that there were no written communication for returning of the material. PW-1 further states that no oral request was also made by the defendant for returning the material. PW-1 further states that it was the obligation of the defendant to return back the material to them, if the same was not required by them.
10. PW-1 admits it to be correct that the delivery challans which have been filed by him are pertaining till 2014 and not thereafter. By way of volunteer, PW-1 states that the material was supplied as per the requirement of the defendant and the same was being used by the defendant till the completion of work. PW-1 further states that thereafter, the defendants were under an obligation to return back the material to them and if the material was not returned by the defendant, the rent of the material was continued to be charged.
11. On 04.12.2018, the cross-examination of PW-1 was deferred at the request of the Ld. Counsel for the defendant but thereafter, despite grant of opportunities, the defendants failed to Suit No. 480/18 Page No. 6/10 further cross-examine PW-1 and as such, the right of the defendants to cross-examine PW-1 was closed by this Court on 22.01.2019. Later on, the defendants were proceeded ex-parte vide orders dated 08.01.2020.
12. However, the plaintiff has further examined Sh. M. K. Kundaria, DGM, NBCC, East Kidwai Nagar, Second Floor, SBG, Delhi as PW-2 and this witness has placed on record the contract entered between NBCC and M/s M. V. Omni Projects (India) Ltd. in the form of Ex. PW2/A.
13. I have carefully gone through the entire material available on record and heard the submissions of the Ld. Counsel for the plaintiff.
14. My issue wise findings on the abovesaid issues are as under:
Issues no. 1 & 2
15. Issue no.1 pertains to the preliminary objections of the written statement of the defendants and as such, the onus to prove the issue no.1 has been placed upon the defendants. Issue no.2 pertains to the prayer clause of the present suit and as such, the onus to prove issue no.2 has been placed upon the plaintiff.
16. Though, the defendants have already been proceeded ex-parte and though even PW-1 was not cross-examined fully by the defendants, yet, the sole defence of the defendants as contained in the written statement of the defendants is that despite repeated requests of the defendants, the plaintiff failed to take back the material from the site of the defendants. The defendants Suit No. 480/18 Page No. 7/10 have further stated that the entire payment has already been paid by the defendants to the plaintiff.
17. No evidence has been led at all by the defendants to prove the aforesaid pleas.
18. Whereas, on the other hand, the plaintiff has placed on record the original delivery challans in the form of Ex. PW1/2 to Ex. PW1/52; computer generated invoices as Ex. PW1/53 to Ex. PW1/68; computer generated statement of account/ledger account of the defendants as Ex. PW1/69 to Ex. PW1/70, the office copy of legal demand notice dated 31.01.2018 alongwith its postal receipts and tracking report as Ex. PW1/73. The plaintiff has also placed on record the certificate u/s 65B of Indian Evidence Act as Ex. PW1/74.
19. From the perusal of the statement of account Ex. PW1/69 to Ex. PW1/70, it is apparently clear that the amount of Rs.18,11,446.20 is due and payable by the defendants. In the part cross-examination, PW-1 has stuck to the point that the aforesaid payment is due and payable by the defendants. I am of the opinion that the testimonies of PW-1 and PW-2 also remain uncontroverted and unchallenged. I do not find any reason to disbelieve the uncontroverted testimonies of PW-1 & PW-2. Accordingly, issue no. 1 is decided against the defendants and issue no.2 is decided in favour of the plaintiff to the extent that the plaintiff is held entitled for the principle amount of Rs.18,11,446.20 together with interest @ 9% per annum from the date of the institution of the present suit till the date of the realization of the decreetal amount.
Suit No. 480/18 Page No. 8/10Relief:-
20. In the light of the abovesaid discussion, the suit of the plaintiff is hereby decreed ex parte and an ex parte decree is passed in favour of the plaintiff and against the defendants for the amount of Rs. 18,11,446.20/-together with the interest @ 9% per annum on the principal amount of Rs.18,11,446.20/- only from the date of the institution of the present suit till the date of the realization of the decreetal amount. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly by the Reader.
21. File be consigned to record room after necessary compliance.
Announced in the open court (RAJ KUMAR) on 17th of January, 2020. Additional District Judge(W) Tis Hazari Courts, Delhi RAJ KUMAR Digitally signed by RAJ KUMAR Date: 2020.01.28 16:04:16 +0530 Suit No. 480/18 Page No. 9/10 Suit No. 480/18 17.01.2020 Present : None.
Vide my separate judgment of even date, announced in the open court today, the suit of the plaintiff has been decreed ex-parte. The costs of the suit have also been awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
(Raj Kumar) ADJ (West) Delhi/17.01.2020 Suit No. 480/18 Page No. 10/10