Delhi District Court
Shri Pawan Maheshwari vs Shri Shitla Mishra on 1 December, 2021
IN THE COURT OF MS. SARITA BIRBAL, DISTRICT JUDGE
(COMMERCIAL COURT), NORTH-EAST, KARKARDOOMA
COURTS, DELHI
C.S (Comm) 24/2020
Shri Pawan Maheshwari
Authoirsed signatory of
M/s Maheshwari Papers (India),
35-A, Radhey Shyam Park Extn.,
New Delhi-110051
......Plaintiff
Versus
Shri Shitla Mishra
Proprietor of M/s D.R. Offset Printers,
At-319, Patparganj Industrial Area, Delhi-110092
R/o 49, Gali No.1, Durgapuri Extn.,
Near East Jyoti Nagar, Shahdra, Delhi-110093
....Defendant
Filed on : 27.02.2019
Arguments heard on : 12.11.2021
Decided on : 01.12.2021
JUDGEMENT
1. Through the medium of this suit, the plaintiff seeks to recover an amount of Rs.4,03,000/- from the defendant. This amount comprises of principal amount of Rs.3,00,000/- for the paper of various qualities and sizes (hereinafter the paper items) supplied to the defendant by the plaintiff; Rs.97,500/- towards interest @ 30% per annum on the due amount for the period from 01.08.2017 to 31.08.2018 and Rs.5500/- towards notice charges.
2. The plaintiff in the plaint alleges that he is running a C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 1 of 13 business of supplying papers and boards etc. under the name and style of M/s Maheshwari Papers (India) as the authorised signatory. The defendant is carrying on his business under the name and style of M/s D.R. Offset Printers of which he is the proprietor and the defendant is known to the plaintiff for the last many years. The plaintiff alleges that the defendant was his regular customer and he had purchased various paper items from the plaintiff during financial years 2015-2016, 2016-2017 and 2017-2018 on credit.
3. The plaintiff alleges that the defendant was placing the orders for supply of paper items on phone and the plaintiff used to supply the ordered items to the defendant accordingly. The plaintiff alleges that thereafter, the plaintiff used to raise bills/invoices for the paper items supplied to the defendant. The plaintiff alleges that during the relevant period, the plaintiff had supplied paper items worth Rs.9,36,985/- through 23 invoices, particulars of which are stated in the plaint. The plaintiff alleges that the defendant has been making on account part payments and the last part payment of Rs.1,00,000/- was made on 01.08.2017 leaving arrears of Rs.3,00,000/-.
4. The plaintiff alleges that he has been repeatedly demanding the due amount but the defendant neglected to pay that amount. The plaintiff alleges that when the defendant failed to pay the due amount, the plaintiff got served a legal demand notice on 18.08.2018 by speed post on the defendant. The said notice was received back with the remark 'lene se mana kiya'. The plaintiff alleges that despite service of notice, the defendant failed and neglected to make the payment of principal amount to the plaintiff.
Hence, the present suit.
C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 2 of 13
5. The defendant has filed his written statement. The defendant by way of a preliminary objection contends that the plaintiff has not valued the suit in a proper manner and on this ground alone, this suit is liable to be dismissed. The defendant further contends that this suit is liable to be dismissed also on the ground that the plaintiff has neither verified nor supported the plaint by an affidavit in terms of Commercial Courts Act, 2015. The defendant denies that the plaint has been signed by a person authorized to sign the same on behalf of the plaintiff. It is contended that the plaint has not disclosed the legal status of the plaintiff.
6. The defendant alleges that it was the plaintiff who had approached the defendant for supply of paper items. The defendant alleges that as the defendant was satisfied with his then existing suppliers, the defendant refused to accept the offer of the plaintiff. The defendant alleges that the plaintiff insisted for an opportunity and on its own started supplying papers of various qualities and varieties on credit basis. The defendant alleges that the plaintiff also undertook that in case, the supplied paper is not utilized, the plaintiff will take the paper back and this would be at the costs of the plaintiff. The defendant denies that the plaintiff was supplying the paper items to the defendant on the asking of the defendant. The defendant denies that it had been placing orders for supply of paper items to the plaintiff through phone. The defendant denies that the plaintiff on the asking of the defendant supplied the paper items or thereafter the plaintiff raised invoices for the purchased items. The defendant alleges that the plaintiff continued supplying the paper items on his own without any order on the part of the defendant with the promise to take back the unutilized paper as made earlier. C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 3 of 13
7. The defendant alleges that initially, the defendant made the payment for all paper items supplied by the plaintiff but then the plaintiff started dumping large quantities of paper items at the premises of the defendant without the knowledge of the defendant. The defendant alleges that at that time the defendant raised an objection but the plaintiff again promised that there is no obligation on the part of the defendant to pay for the unused paper items and the plaintiff will take back the unused paper items as promised earlier. The defendant alleges that the plaintiff raised bills/invoices only in respect of paper items which were used by the defendant. The defendant alleges that the plaintiff never raised the bill initially as he used to give the bills for the products which were used and paid by the defendant. The defendant alleges that he had made up-to-date payments of the bills for the paper used by him and supplied by the plaintiff.
8. The defendant alleges that in July 2016, the defendant showed his displeasure for the tendency of the plaintiff to dump paper items which were not being utilized by the defendant. At that time, the defendant asked the plaintiff not to further dump the paper articles at the premises of the defendant and categorically told the plaintiff that he will not make the payment for dumped paper items. The defendant alleges that substantial amount of paper items dumped by the plaintiff perished while lying at the premises of the defendant. The defendant alleges that this caused a strained relationship between them. The defendant alleges that in April 2017, the plaintiff approached the defendant for settling the accounts. The defendant alleges that at that time, the plaintiff made a hue and cry for the loss of dumped paper but after discussions, the account was settled for Rs.2,76,923/-. The defendant alleges that he paid an amount of Rs.1,76,923/- and the C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 4 of 13 balance amount of Rs.1,00,000/- was paid subsequently. He alleges that this payment was made only with a view to save the prestige of the defendant in the market as otherwise the plaintiff was not entitled to receive any money from him for the reasons stated above. The defendant alleges that in this manner the entire payment was made to the plaintiff and no amount remained due to the plaintiff.
9. The defendant denies that any notice was got served on him on behalf of the plaintiff and states that in any event, he never refused to receive any notice on behalf of the plaintiff. The defendant seeks dismissal of the present suit with exemplary costs.
10. The plaintiff filed replication to the written statement of defendant wherein he denied the allegations of the defendant and reiterated and reaffirmed his previous stand as in the plaint.
11. Vide order dated 28.11.2019, following issues were framed:-
1. Whether the present suit has not been valued properly for the purposes of court fee? OPD
2. Whether the plaint has not been verified properly and is not supported with a proper affidavit as per the provisions of the Commercial Courts Act, 2015, if so, its effect? OPD
3. Whether the plaintiff is entitled for a decree of a sum of Rs.4,03,000/-, against the defendant, as claimed in the plaint? OPP
4. Whether the plaintiff is entitled to claim interest from the defendant, if so at what rate for which period? OPP
5. Relief.
12. In support of its case, the plaintiff examined himself as PW1. PW1 tendered his evidence by an affidavit (Ex.PW1/A) C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 5 of 13 and an additional affidavit (Ex.PW1/B). The affidavit (Ex.PW1/A) of this witness is generally on the same lines as the plaint. PW1 relied on certain documents i.e. Non-starter certificate issued by the Delhi Legal Services Authority (DLSA) North East, Karkardooma (Ex.PW1/1), carbon copies of 23 bills/invoices (Ex.PW1/2-colly.), ledger account/statement of account (Ex.PW1/3), certificate under section 65B of Indian Evidence Act (Ex.PW1/4), copy of the legal notice dated 18.08.2018 (Ex.PW1/5), original postal receipts (Ex.PW1/6 and Ex.PW1/7), Form DVAT 07 (Ex.PW1/8) and a returned envelope addressed to the defendant firm (Ex.PW1/9). PW1 was cross examined on behalf of the defendant.
13. In addition, the plaintiff also summoned one Shri Ashok Kumar, Sr. Assistant from the Department of Trade and Taxes, ITO, Delhi and examined him as PW2. This witness brought the summary of purchases (as per Form DVAT-30) in the name of D.R. Offsets Printers. This witness proved a copy of that document certified by the GSTO (Goods and Services Tax Officer) as Ex.PW2/A. This witness was cross examined on behalf of the defendant. During cross examination, this witness admitted that he has no personal knowledge about the contents of the document which he has brought to the court. He stated that the particulars of details in the purchase summary have been provided/uploaded by the plaintiff on the portal of DVAT. This witness stated that he cannot say if the defendant had returned the supplied goods to the plaintiff.
14. The defendant who is the proprietor of M/s D.R. Offset Printers appeared as his own witness (DW1) and he led his evidence by an affidavit Ex.DW1/A. He did not rely on any document. This witness was cross examined on behalf of the C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 6 of 13 plaintiff.
15. The cross examination of PW1 and DW1 shall be taken note of to the extent necessary at appropriate stage in this judgement.
16. I have heard Shri M.P. Chaudhary, learned counsel for the plaintiff and Shri S.K.Vashista, learned counsel for the defendant. My issue-wise findings are as follows:-
Issue No.1: Whether the present suit has not been valued properly for the purposes of court fee? OPD
17. Onus to prove this issue was on the defendant. No arguments were advanced on behalf of the defendant on this issue. It is not shown as to how the valuation of the suit is not made in proper manner. By the present suit, the plaintiff seeks to recover an amount of Rs.4,03,000/- from the defendant. The plaintiff has valued this suit at Rs.4,03,000/- and has affixed a court fees of Rs.6300/- on the plaint. The valuation of the suit is in accordance with Section 7 of The Court Fee Act, 1870 and Section 8 of The Suit Valuation Act, 1887. This issue is decided in favour of the plaintiff and against the defendant. Issue No.2:Whether the plaint has not been verified properly and is not supported with a proper affidavit as per the provisions of the Commercial Courts Act, 2015, if so, its effect? OPD
18. Onus to prove this issue was also on the defendant. No arguments were advanced on behalf of the defendant on this issue.
19. The plaint describes the plaintiff as "Shri Pawan Maheshwari, Authorised Signatory of M/s Maheshwari Papers (India)". Shri Pawan Maheshwari (PW1) in his cross examination stated that though his wife (Mrs. Shalu Maheshwari) is the proprietor of M/s Maheshwari Papers (India), it is he who has C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 7 of 13 been looking after the business of this firm. The General Power of Attorney in original executed by Mrs. Shalu Maheshwari in favour of Pawan Maheshwari for this suit has been placed on record.
20. In a recent judgement reported as Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr. [judgement dated 10.11.2021 in Crl. Appeal No.1105 of 2021], a criminal complaint under section 138 of Negotiable Instruments Act,1881 was filed by an individual acting as the Managing Director of a company but the subject matter cheques were issued in the name of the company. The Hon'ble Supreme Court held that if we look at the format of the complaint, it is quite apparent that the Managing Director has filed the complaint on behalf of the Company. There could be a format where the Company's name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further observed that the description of the complainant with its full registered office address is given at the inception itself except that the Managing Director's name appears first as acting on behalf of the Company. It was held that the format itself cannot be said to be defective though it may not be perfect.
21 Similar is the position in this case. Moreover, the Power of Attorney dated 08.08.2019 issued by Shalu Maheshwari in favour of Pawan Maheshwari was filed alongwith the plaint. The subject matter invoices (Ex.PW1/2-colly.) are having signatures of Pawan Maheshwari. Thus, it is held that suit has been properly instituted.
22. This suit was initially filed as an ordinary suit and C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 8 of 13 continued as such for some time. It was only at the stage of recording of evidence that vide order dated 26.02.2020, it was observed by the learned Additional District Judge that the present suit is covered by Commercial Courts Act and accordingly it was ordered to be transferred to this court. The affidavit filed in support of the plaint is similar to the affidavit filed by the defendant in support of the written statement and no statement of truth in the prescribed format has been filed by either of the parties. Both parties have appeared as witnesses in support of their respective cases. Rules of procedure are subservient to justice. It is not shown as to how either of the parties has been prejudiced by non filing of the statement of truth in accordance with requisites of Commercial Courts Act.
23. Issue No.2 is thus decided in favour of the plaintiff and against the defendant.
Issue No.3: Whether the plaintiff is entitled for a decree of a sum of Rs.4,03,000/-, against the defendant, as claimed in the plaint? OPP
24. As noted in the earlier part of this judgement, the plaintiff seeks to recover an amount of Rs.4,03,000/- which comprises of principal amount of Rs.3,00,000/- for the paper items supplied to the defendant by the plaintiff; Rs.97,500/- by way of interest @ 30% per annum on the due amount for the period from 01.08.2017 to 31.08.2018 and Rs.5500/- as notice charges.
25. The plaintiff has filed the computerized running account statement (Ex.PW1/3) running into three pages of the defendant maintained by the plaintiff. This account statement shows all sale transactions and payments received by the plaintiff from the defendant and shows that an amount of Rs.3,00,000/- remains due against the defendant. The plaintiff has also filed carbon C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 9 of 13 copies of 23 invoices (Ex.PW1/2-colly.) drawn on behalf of the plaintiff. These invoices bear the signatures of persons who are stated to have signed the same in token of acknowledgement of receipt of the paper items on behalf of the defendant. The plaintiff in his cross examination admitted that he is not able to identify the signature of all persons who had signed the invoices on behalf of the defendant. It is seen from the invoices that some of these have been signed by one Munna. The plaintiff in his evidence stated that he had once spoken to Munna on phone. The defendant in his cross examination admitted that one worker by the name Munna was working with his firm in the year 2017. The defendant admitted that he had fifteen workers in the year 2015- 2016 and in 2016-2017 but he was not able to recollect the names of these persons.
26. The defendant in his cross examination admitted that he was placing orders telephonically on the plaintiff which is contrary to his allegation in the written statement that no such orders were placed by him and the plaintiff on his own was dumping the paper items at his premises. The defendant also admitted that he was maintaining a record of purchases and payments made to the plaintiff but no such record has been filed him in this court. The defendant admitted that he used to claim VAT input for purchased items but he could not tell against which bills of the plaintiff, he had claimed the VAT input. Case of plaintiff finds support from the evidence of PW2 Shri Ashok Kumar (Sr. Assistant) Employee No.216247 from the Department of Trade and Taxes, ITO, Delhi who proved summary of purchases (as per Form DVAT-30) in the name of the firm of the defendant as Ex.PW2/A. The legal notice dated 18.08.2018 (Ex.PW1/5) asking the defendant to pay the due amount was got C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 10 of 13 sent on the defendant through the counsel of the plaintiff which came back with the endorsement 'lene se mana kiya'. The defendant denies that such notice was got served to him but the plaintiff has placed on record the postal certificate Ex.PW1/6, Ex.PW1/7 and the relevant envelope (Ex.PW1/9).
27. In above facts and circumstances, it would be difficult to accept the oral statement of the defendant that it was the plaintiff who of his own, was dumping paper items at the premises of the defendant without any purchase order by the defendant and that the dumping was on a promise that the plaintiff would take the paper items back if the same are not used by the defendant. This oral and self-serving assertion of the defendant is denied by the plaintiff. This assertion is not supported by any documentary evidence much less contemporaneous documentary evidence. The defendant admitted that he never issued any debit note to the plaintiff with regard to the quality of goods. He admitted that the plaintiff never took back the goods from the godown.
28. The attention of the court has also drawn to contents of a pen drive (Ex.PW1/Y1) having a recorded telephonic conversation. DW1 in his cross examination admitted that the said conversation took place between him and the plaintiff but claimed that the said recording was in respect of some other person. However, at the same time in his cross examination, the defendant stated as follows:-
"At this stage, pen drive Ex.PW1/Y1 is played on the laptop which has been brought by the plaintiff. After hearing the recorded conversation, the witness (DW1) states that this conversation took place between him and the plaintiff.
The recorded conversation in pen drive Ex.PW1/Y1 is not in relation to the present case but was for some other person.
I have no transaction with the plaintiff except the C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 11 of 13 transactions involved in the present case. It is correct that in recorded conversation in pen drive Ex.PW1/Y1, I admitted that I will pay money to the plaintiff in installments. (Vol. I agreed to pay money to the plaintiff for the waste papers which were not taken back by plaintiff from my premises). It is correct that no other case is pending between me and the plaintiff except the present case. It is wrong to suggest that I have deposed falsely." (emphasis added)
29. Since the defendant admits the recorded conversation and his voice in the conversation, the objection relating to admissibility of the contents of pen drive is of no consequence. However, even if the contents of the pen drive are ignored altogether, I am of the opinion that the plaintiff has been able to prove this issue to the extent of liability of the defendant for the principal amount of Rs.3,00,000/- on the basis of other materials on record.
30. In view of above, issue No.3 is decided in favour of the plaintiff and against the defendant to the extent that the plaintiff is entitled to recover an amount of Rs.3,00,000/- towards the cost of paper items supplied to the defendant.
Issue No.4: Whether the plaintiff is entitled to claim interest from the defendant, if so at what rate for which period? OPP
31. The plaintiff claims an amount of Rs.97,500/- by way of pre-litigation interest @ 30% per annum for the period from 01.08.2017 to 31.08.2018 and at the rate of 30% for the subsequent period. The transactions between the parties was purely commercial in nature i.e. between a paper supplier and an offset printing firm. In the facts and circumstances, I am of the opinion that ends of justice would be met if the defendant is directed to pay interest @ 9% per annum on the due principal amount of Rs.3,00,000/- from the date of notice i.e. 18.08.2018 C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 12 of 13 till its realisation.
32. This issue No.4 is accordingly decided in favour of plaintiff and against the defendant.
Issue No.5:Relief.
33. In view of above, a decree for recovery of Rs.3,00,000/- with interest @ 9% per annum on the due principal amount from the date of notice i.e. 18.08.2018 till its realisation is passed in favour of the plaintiff and against the defendant. The parties shall bear their respective costs.
34. Decree sheet be prepared accordingly.
35 File be consigned to record room.
Announced on 01.12.2021 (SARITA BIRBAL) District Judge, Commercial Court, North East, Karkardooma Courts, Delhi C.S. (Comm) 24/2020 Shri Pawan Maheshwari vs. Shri Shitla Mishra page 13 of 13