Delhi District Court
Shri Kamal Sachdeva vs M/S K. Kube Plastic Industries on 23 December, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE
01 ( WEST), TIS HAZARI COURTS, DELHI.
SCJ No. 609282/16/14
Date of Institution : 09.04.2014
Date of reservation of judgment : 14.12.2016
Date of pronouncement of Judgment : 23.12.2016
Shri Kamal Sachdeva
Proprietor of M/s Navyug Paper Product,
D195, Mansrover Garden,
New Delhi 110015
...........Plaintiff
Versus
M/s K. Kube Plastic Industries
B8, Girikunj Industrial Estate,
Near Paper Box Company, Mahakali Caves Road,
Amdheri East, Mumbai 400093
through its proprietor/partner Principal Officer
............Defendant
SUIT FOR RECOVERYOF RS. 2,84,863/
JUDGMENT
1. Brief facts of the present case as per plaintiff are he is engaged in the business of sales of plastic and paper plates/glasses, etc. Defendant approached plaintiff at his place of business in Delhi and offered him to purchase the goods of defendant and to sell the same in the entire North India. The defendants also assured that their Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 goods will be sold in the entire North India only through the plaintiff and that the goods supplied would be of good quality and and at reasonable rates.
2. Further states that defendant had been visiting plaintiff at Delhi for getting the orders for supply of goods and from time to time, the said salesman of the defendant obtained orders from plaintiff from Delhi. Accordingly plaintiff had been receiving the goods at Delhi and making the payments to defendant from time to time. Further states that he tallied the account of defendant and found that one order as shown in the statement of account of defendant is with respect to one invoice no. 17 dated 18.04.2013 of Rs. 4,25,111/ but the goods as per the said invoice, was never received by him from defendant and infact no order for the said supply was ever made by him to the defendant.
3. Further alleges that the defendant had assured him that they would not sell their goods in North India to any other person but inspite of that, plaintiff came to know that the defendant had started selling the goods to the other customers in North India and that too at lower prices which resulted in heavy losses to him (plaintiff).
4. Further states that defendant sent a false and frivolous notice dated 08.02.2014 thereby requiring him (plaintiff) to make the payment of Rs. 3,40,000/ which was duly replied by him vide his reply dated 25.02.2014. In the said reply dated 25.02.2014, he denied the allegations of defendant and also stated that as per the statement of account, a sum of Rs. 84,863/ had been paid extra by him to the defendant. As per plaintiff, he had also paid a sum of Rs. 1,00,000/ in advance to the defendant to supply the goods but it was not supplied. Besides this plaintiff also claimed damages to the tune of Rs. 1,00,000/ Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 on account of heavy business losses suffered by him due to sale of goods by defendant to other customers in North India and that too at lower rates which also caused losses to the goodwill of plaintiff.
5. Accordingly, prayer is made by plaintiff for a decree for recovery of Rs. 2,84,863/ from defendant which includes excess payment made by him to the defendant of Rs. 84,863/, advance payment of Rs. 1,00,000/ and towards damages of Rs. 1,00,000/ .
6. Written Statement has been filed by defendant wherein it is stated that there was no cause of action in favour of plaintiff to file the present suit against it. Further this court did not had jurisdiction to entertain the present suit since the goods were supplied by defendant from Mumbai, it was dispatched from Mumbai, orders were placed at Mumbai, they were executed from Mumbai and the billing was to be done and raised from Mumbai. Further the payments were to be received in Mumbai and taxes were governed under the Mumbai State Sales Tax Acts and the Mumbai State Acts was applicable to the transaction of sales.
7. Further states that the goods were to be supplied as per purchase order however plaintiff had failed to make payment inspite of receiving the goods in time and in good condition. It is contended that the claim made by plaintiff in the suit is false. As a matter of fact, defendant had to receive payment from plaintiff for an amount of Rs. 3,40,248/ and they have a counter claim on him. It is further stated that the suit as filed by plaintiff was not valued properly. Further neither bills nor the lorry/railway receipts have been annexed with the plaint and the plaintiff has not even annexed any purchase orders.
8. It is further stated that the actual facts are that defendant Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 had participated in an exhibition at Delhi namely AAHAR2012 somewhere in the month of March 2012 where defendant had displayed its products in the said exhibition. Plaintiff/his representative Mr. Sheeval Sachdeva visited the stall place of defendant at the exhibition and informed the defendant that plaintiff was interested in the products of defendant and he intended to purchase it and start business with defendant. It was also informed that they (plaintiff's representative) were representing the plaintiff firm M/s Navyug Paper Products and their sister concern firm known as M/s Packon Enterprises.
9. It is further stated that several orders were placed on defendant in Bombay by the plaintiff's representative and defendant supplied plastic goods to him as per the orders. Advance payments were made for the order bookings and balance payments were to be released against the bills and on receipt of goods by the plaintiff from defendant.
10. Defendant further states that the plaintiff has received the goods supplied to him in a good condition and to his utmost satisfaction. Further the rates charged in the bill are according to the prices as agreed upon by the parties. The plaintiff has not complained about the goods or charges charged in the bill. If there was any grievance, plaintiff would have immediately informed the defendant.
11. However despite having received the goods supplied to him, plaintiff had only paid a sum of Rs. 4,57,000/ against the goods supplied to him against the invoices worth Rs. 7,97,248/. A balance payment of Rs. 3,40,248/ was yet to be paid by plaintiff to the defendant. Further plaintiff was required to furnish "C" Form for the goods supplied to him failing which he had to pay difference in the Sales Tax for the goods supplied to him. It is further alleged that inspite Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 of repeated follow up and reminders, till date, the plaintiff had failed and neglected to make balance payment of Rs. 3,40,248/ and did not supply the "C" Form.
12. It is further stated that since the plaintiff failed to make payment inspite of various requests made to him, defendant sent notice dated 08.02.2014 to him through their advocate, setting out the exact facts of the case and called upon him to make the balance payment of Rs. 3,40,248/ which was due to the defendant, failing which interest was to be charged @12 % p.a, and the matter would be proceeded legally, but to no avail. In rest of the W.S, the averments made in the plaint were denied and prayer is made for dismissal of the suit.
13. After completion pleadings, vide order dated 16.07.2015, following issues were framed: (1) Whether the plaintiff is entitled to damages for a sum of Rs. 2,84,863/ as prayed for? OPP (2) Whether this court has jurisdiction to try the present suit? Onus to parties (3) Relief.
14. In order to prove his case, plaintiff only examined himself as PW1. In his testimony, following documents were exhibited :
"The affidavit of PW1 is Ex. PW1/A wherein the averments made in the plaint were reiterated, the ledger account of defendant is Ex. PW1/2, copy of notice dated 10.07.2014 is Mark A, copy of notice dated 08.02.2014 is Mark B, copy of reply dated 25.02.2014 is Mark C ."
15. Plaintiff was crossexamined partly but he did not offer Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 himself for remaining crossexamination. Hence vide Order dated 23.11.2016, PE was closed. Defendant did not led any evidence.
16. Final arguments were addressed only on behalf of defendant. I have now perused the evidence to record. My issuewise findings are as under : 17. ISSUE No. 2 Whether this court has jurisdiction to try the present suit?
Onus to prove jurisdiction of the court was upon plaintiff and it was upon the defendant to prove otherwise since, defendant has contended that this court does not have territorial jurisdiction to entertain the present suit.
18. Perusal of plaint shows that plaintiff contends jurisdiction of this court on the ground that he was doing business in Delhi, further defendant contacted him in Delhi, orders were placed by him to defendant at Delhi and goods were supplied by defendant to him at Delhi. However, in order to show the territorial jurisdiction of this court, plaintiff has not filed any document in support thereof.
19. As per Section 20 CPC, a suit has to be instituted in a court within the local limits of whose jurisdiction, defendants or any of the defendant resides, carry on business, or personally work for gain or a place where the cause of action, wholly or in part arises. Hence, in order to invoke territorial jurisdiction, the place where plaintiff resides or carries on business or personally works for gain, is immaterial and it is the place of defendant which is material in this regard.
20. As far as the place where cause of action in whole or in part arises, is concerned, besides oral statement regarding jurisdiction of this court, there is no evidence on record in order to prove the Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 contentions of plaintiff. Infact, plaintiff has not even filed his replication to the Written Statement of defendant in order to rebut the contentions of defendant that this court does not have territorial jurisdiction. There is no proof on record to show that defendant's officials had visited plaintiff at Delhi or that plaintiff had placed order to defendant from Delhi or that orders had been supplied by defendant to plaintiff at Delhi. On the contrary, in his cross examination dated 27.02.2016, plaintiff has admitted that orders were placed by him to defendant on telephone itself and goods were sent by defendant to him from Mumbai through transporter. Furthermore it is common knowledge that usually it is the buyer who approaches the seller and not vice versa. Lastly, all the payments made by plaintiff were to be received by defendant in Mumbai itself.
From the above, it is clearly evident that no part of cause of action has arisen in Delhi. So, this court does not have territorial jurisdiction to decide the suit. Hence, this issue is decided in favour of defendant and against the plaintiff.
21. ISSUE NO. 1(1) Whether the plaintiff is entitled to damages for a sum of Rs. 2,84,863/ as prayed for?
The onus to prove this issue is upon plaintiff. He is claiming the above amount stating that he had paid excess amount of Rs. 84,863/ to defendant as reflected from ledger account of defendant being maintained by him. He further paid Rs. 1,00,000/ in advance to the defendant towards supply of goods to him and he is also claiming Rs. 1,00,000/ towards damages on account of heavy business losses suffered by him due to defendant selling its good to other persons in Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 North India at a lower rate. However, in order to prove his above allegations, plaintiff has only filed the ledger account of defendant Ex. PW1/2. No other document has been produced or exhibited in his examinationinchief. Further this ledger account Ex. PW1/2 is a computer generated document but no Certificate u/s 65B of Indian Evidence Act has been filed, which is a mandatory requirement to make the said document admissible in evidence as per judgment of Hon'ble Supreme Court in case titled as " Anvar P.V. v. P.K. Basheer, Civil Appeal No. 4226 of 2012, decided on 18.09.2014."
22. Evenif this technical deficiency is ignored for the sake of arguments, still even on merits, plaintiff has not been able to prove his contentions. The plaintiff has not filed invoices and bills and proof of payments alongwith ledger account Ex. PW1/2 to prove the various transactions having taken place between the parties. A ledger account is only a corroborative piece of evidence in support of ledger but it cannot substitute the actual invoices and bills upon which the ledger account is based. The original books of accounts have also not been produced. Nonproduction of a vital piece of evidence will only lead to an adverse inference being drawn against plaintiff. Hence the defendant's liability to pay amount of Rs.84,863/ remains unproved.
23. As regards plaintiff's claim to have made payment of an advance amount of Rs. 1,00,000/ to the defendant is concerned, again there is no document to prove the same. In entire plaint, plaintiff has not even mentioned the date on which he made advance payment of Rs. 1,00,000/ to defendant. It is also surprising to note as to why this advance payment is not reflected even in the ledger account of defendant Ex. PW1/2 which is being maintained by plaintiff. Hence, Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 plaintiff is not entitled to claim any such advance amount from defendant.
24. As regards damages, as per plaintiff there was an oral agreement made between him and defendant whereby defendant had assured that it would not sell its goods in Northern India to any other person except the plaintiff. However plaintiff has failed to prove existence of any such agreement. It is worth stating that as per business practice, such kind of agreement can never be oral as is being contended by plaintiff. Furthermore he has even failed to mention the name of the person with whom the said mutual oral agreement was entered into. He further admits in his crossexamination that he did not write any letter to defendant nor the defendant wrote any letter to him towards confirmation of agreement regarding plaintiff being appointed as the sole distributor of defendant in Northern India. So this oral agreement remains unproved.
25. Furthermore plaintiff contended that he came to know that the defendant had sold its goods to one Packon at Bawana but failed to give any details of the alleged transaction. He also failed to give details of any other such transactions of defendant such as name of parties, date, month or year of sale and even the price at which the goods were sold to such customers. On the other hand, plaintiff admitted in his crossexamination that whatsoever goods were sold to him by defendant, were as per the price list of defendant. He also admitted that he had never raised any objection to the price of the goods as mentioned and charged by the defendant. Under such circumstance, the claim of plaintiff of him having suffered huge business losses due to defendant having sold goods to other customers in northern India despite Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10 exclusive distributorship of plaintiff, remains totally unproved. Moreover, even the quantum of damages also remains unproved as regards business losses and loss of goodwill. Hence, plaintiff is not entitled to damages as is being claimed by him.
It is quite obvious that plaintiff has totally failed to prove any of his claims. This issue is accordingly, decided in favour of defendant and against the plaintiff.
26. RELIEF With these observations and findings, the suit of the plaintiff stands dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 23.12.2016 Civil Judge 01 ( West)/Delhi Suit No 609282/16 Kamal Sachdeva Vs. M/s Kube Plastic Industries Page No. 10 / 10