Delhi District Court
M/S Professional Impex Pvt. Ltd vs M/S Asis Industries Ltd on 21 November, 2024
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) No. 359/2024
CNR No. DLWT010030602024
21.11.2024
M/s. Professional Impex Pvt. Ltd.
Having its registered office at
First floor, Harbans Bhawan-I,
DDA Business Complex,
Nagal Raya, New Delhi-110046
.....Plaintiff
Vs.
M/s. Asis Industries Ltd. (Now known as
M/s. Asix Corporate Advisors Ltd.)
Through Managing Director/ Director
Shri Rakesh Kumar Agarwal
Plot No. 94/7, Block 2, WHS
Kirti Nagar, West Delhi
New Delhi-110015
Also at:
A Wing, 2nd Floor Mhatre Pen Building,
Senapati Bapat Marg,
Dadar, Mumbai-400028
And
201, 2nd Floor, 18, Prime Centre,
SV Road, Above Vijay Sales Santacruz
Mumbai-400054.
....Defendant
Date of Institution : 08.04.2024
Date of arguments : 21.11.2024
Date of judgment : 21.11.2024
SUIT FOR RECOVERY OF Rs. 11,49,459/- ALONGWITH
INTEREST.
JUDGMENT:
CS (Comm.) No. 359/2024 -1-
1. Vide this judgment, I am deciding the suit for recovery of Rs. 11,49,459/- along with interest filed by the plaintiff against the defendant.
2. In the plaint, it is mentioned that plaintiff is a private limited company, incorporated under the Companies Act, 1956 having its registered office at 1 st Floor, Harbans Bhawan-I, DDA Business Complex, Nangal Raya, New Delhi-110046. Sh. Bibek Kumar Jhas is the authorized representative of the plaintiff duly authorized by its Board of Directors vide their Resolution dated 20.07.2022 to sign, verify and filed the present suit. The plaintiff is an approved Custom House Clearing agent based at New Delhi and known for its best services at the concerned ports. It is mentioned that plaintiff provides prompt and efficient clearing services to its clients and also arranges transportation and delivery of imported goods to their destination as desired by the clients in Delhi. It is mentioned that the defendant used to import goods/materials from overseas and it approached the plaintiff for getting its imported goods/materials cleared from customs and agreed to pay the fee and other charges to plaintiff as per its bills/invoices. The plaintiff agreed to the request of defendant and started providing its aforesaid clearing services and raising and sending its bills/ invoices to defendant. The defendant kept on availing the services of plaintiff and getting its imported/exported goods/ materials cleared from Customs and became liable to pay the bills/debit notes/invoices raised by plaintiff from time to time for the services provided. It is also mentioned that the defendant made certain payments also leaving an amount of Rs. 6,69,453/- as balance due on 01.04.2020 CS (Comm.) No. 359/2024 -2- payable by defendant to plaintiff as per the ledger account maintained by the plaintiff in its books of account. The plaintiff repeatedly demanded its aforesaid balance due payment from time to time but the defendant failed, avoided and neglected to pay the same on one pretext or the other and did not pay the balance amount to the plaintiff. The plaintiff has claimed interest @ 18% per annum on the amount of Rs. 6,69,453/- from 08.04.2020 i.e. after 1 week from the said due date i.e. 01.04.2020. As per the plaintiff, the interest @ 18% per annum from 08.04.2020 to 21.11.2023 on the due amount comes to Rs. 4,36,776/-, hence total due amount payable by defendant to plaintiff as on 21.11.2023 comes to Rs. 11,06,229/-.
3. The plaintiff has filed application before the West District Legal Services Authority for Pre-litigation Mediation for resolving the dispute between the parties. Notices were issued to the defendant and defendant appeared before the DLSA Authority and acknowledged its liability and expressed its willingness to settle the account and make the payment but even after availing time on three occasions did not give its consent and willingness to participate in the proceedings and ultimately the District Legal Service Authority issued Non Starter Report dated 07.02.2024 to plaintiff.
4. The plaintiff has further claimed interest on the outstanding amount of Rs. 6,69,453/- @ 18% per annum from 22.11.2023 to 31.03.2024 for 131 days comes to Rs. 42,230/-. It is prayed by the plaintiff that a decree of Rs. 11,49,459/- be passed in favour of the plaintiff and against the defendant. The CS (Comm.) No. 359/2024 -3- plaintiff has also claimed interest @ 18% per annum from the date of filing of present suit till realization.
5. The defendant has filed written statement taking preliminary objections that the suit is not maintainable and liable to be dismissed with exemplary cost. It is mentioned that as per documents filed by the plaintiff, the last transaction held between the parties is dated 25.07.2017 when the payment of Rs. 3,00,000/- has been received, thereafter, there is no business transaction between the parties had taken place and limitation to file the present suit expired on 24.07.2020. The plaintiff has not approached the Court with clean hands. There is no cause of action to file the present suit. This court has no jurisdiction to try and entertain the present suit. In reply on merits, it is mentioned that it is matter of record that Mr. Bibek Kumar Jha is authorized by the plaintiff company to file the present suit. It is mentioned that the name of defendant company has been changed to M/s. Asis Corporate Advisors Limited vide certificate of incorporation dated 08.08.2022. As per the defendant, nothing has remained balance against the plaintiff to be payable by the defendant. The present suit is barred by limitation. The plaintiff has manipulated the ledger account and falsely reflected the entry dated 01.04.2020 in the name of M/s. Asis Plywood Pvt. Ltd. As per the defendant, since the principal amount is itself not recoverable from the defendant, therefore, the question of any interest as alleged by the plaintiff upon such principal amount, does not arise at all. Dismissal of suit is prayed by the defendant.
CS (Comm.) No. 359/2024 -4-6. The plaintiff has filed replication and controverted the allegations made in the written statement and further reaffirmed the averments made in the plaint.
7. On the basis of pleadings of the parties, following issues were framed by me on 24.08.2024, which are as under:-
1) Whether the present suit is filed within limitation? (OPP)
2) Whether this court has territorial jurisdiction to try and entertain the present suit ?(OPP)
3) Whether the plaintiff is entitled to recovery of Rs. 11,49,459/- ? (OPP)
4) Whether the plaintiff is entitled forinterest on the amount of Rs. 11,49,459/-, if yes at what rate and for what period ? (OPP)
5) Relief.
8. In evidence plaintiff has examined Sh. Bibek Kumar Jha, AR of plaintiff as PW-1. This witness has filed affidavit on the lines of plaint. This witness has proved the certified true copy of the Board Resolution dated 20.07.2022 as Ex. PW-1/1, copies of invoices as Ex. PW-1/2 to Ex. PW-1/8, the hard copies of ledger account from 27.01.2017 to 31.03.2017, 01.04.2017 to 31.03.2018 & 01.04.2020 to 31.03.2024 as Ex. PW-1/9 to Ex. PW-1/11, Non Starter Report dated 07.02.2024 as Ex. PW-1/12, Emails dated 04.09.2019 & 02.02.2022 as Ex. PW-1/13 & Ex. PW-1/14, certificate under Order XI Rule 6(3) CPC read with Section 65B of Indian Evidence Act in respect of computer generated copies of invoices/bills/ debit notes and ledger account CS (Comm.) No. 359/2024 -5- as Ex. PW-1/15 and Certificate under Order XI Rule 6(3) CPC read with Section 65B of Indian Evidence Act in respect of emails dated 04.09.2019 & 02.02.2022 as Ex. PW-1/16.
9. This witness is duly cross examined by Ld. Counsel for defendant. In cross examination, this witness has stated that he is Accountant in the plaintiff company and working with the plaintiff company for the last 9-10 years. This witness has stated that he cannot tell the exact year when the plaintiff company had started business with the defendant company. This witness has stated that the plaintiff was having business dealings with the defendant prior to his joining in the plaintiff company. He has stated that the defendant used to send the work order through email or through telephonic call. This witness has admitted that he had not placed on record any email in this regard nor he has brought copy of any email.
He has stated that the present suit has been filed on the basis of ledger account. He has stated that the plaintiff company has shared the copy of ledger account with the defendant through email before filing the present suit. This witness has stated that he had himself sent the ledger account to the defendant through plaintiff's email id [email protected].
This witness has admitted that mail was sent from the ID of Ms. Simmi and has been sent by Mr. Mayur Nayal on behalf of plaintiff company. He has admitted that the plaintiff has not placed on record all the invoices as mentioned in the ledger accounts. This witness has stated that he has not filed any document related to the opening balance as shown in Ex. PW-1/9. This witness has stated that the email ID mentioned at CS (Comm.) No. 359/2024 -6- point- A on Ex. PW-1/9 to Ex. PW-1/11 belongs to the defendant company. He has admitted that plaintiff has not placed on record any document to show the ledger accounts were sent on the email ID of the defendant mentioned at point- A of Ex. PW-1/9 to Ex. PW-1/11. He has stated that whatever payment is made by the defendant is shown in the ledger account filed by the plaintiff. He has admitted that plaintiff has not made M/s. Asis Plywood Pvt. Limited as party in the present case. He has admitted that the amount shown in the ledger Ex. PW-1/11 has also been included in the claim of the plaintiff. He has admitted that no separate agreement regarding rate of interest was executed between the plaintiff and defendant. He has voluntarily stated that rate of interest is duly mentioned on the invoices.
10. On the other hand, defendant has examined Sh. S.N. Gupta, AR of the defendant as DW-1. This witness has filed affidavit on the lines of written statement. This witness has proved copy of Board Resolution dated 29.05.2024 a Ex. DW-1/A and copy of certificate of incorporation dated 08.08.2022 as D-1.
11. This witness is duly cross examined by Ld. Counsel for plaintiff. During cross examination, this witness has stated that he is AR of the defendant. This witness has stated that he is not the employee of the defendant company. He has voluntarily stated that he is the employee of M/s Shirdi Panel Industries Ltd and AR in the present case. He has stated that on the basis of records available in the office and being the Sr. official of M/s Shirdi Panel Industries Ltd, he is aware with the facts of the CS (Comm.) No. 359/2024 -7- present case. This witness has stated that he has no knowledge regarding the minutes book of the defendant company. He has stated that most likely the meeting of Board of Directors was held in the Head Office of the defendant company but he is not sure. He has stated that the resolution Ex. DW1/A has been signed by Mr. Rakesh Kumar Aggarwal, one of the Director of the defendant company. He has stated that the account of the defendant company is being maintained by the accounts department. This witness has stated that he is not aware the name of the concerned person who was maintaining the account related to the plaintiff company. This witness has stated that he does not know the name of concerned person of defendant company who was doing day to day affairs /business dealings with the plaintiff company. This witness has stated that he cannot tell the name of any of the employee of the defendant company. He has stated that the office of the defendant company is presently at Mumbai. He has stated that defendant is not having any branch in Delhi. This witness has stated that he knew the company in the name of ASIS Plywood P. Ltd. This witness has stated that he was one of the employee of M/s ASIS Plywood P. Ltd. He has stated that the office of ASIS Plywood P. Ltd is presently in Mumbai. This witness has stated that the company ASIS Plywood P. Ltd has gone into liquidation by the order of Hon'ble NCLT, Delhi. However, he has not filed any such order on record. He has stated that no amount is due or payable by the defendant to the plaintiff. He has stated that the e-mail ID of defendant company is [email protected]. He has stated that Mr. Gaurav Aggarwal might be one of the Directors of the defendant company. This witness has stated that he knew the CS (Comm.) No. 359/2024 -8- person Mr. Sarvesh Aggarwal. This witness has stated that he does not know whether Sarvesh Aggarwal is the employee of the defendant company. He has voluntarily stated that Sarvesh Aggarwal is one of the directors in one of their Group Company. He has stated that Ms. Sugandha Surve was never the employee of defendant company. The e-mail id i.e. [email protected] belongs to one of the Director Mr. Rakesh Aggarwal. He has stated that the e-mail id i.e. [email protected] belongs to Mr. Gaurav Aggarwal. He has stated that the e-mail ID [email protected] is on the domain of defendant company. This witness has stated that the WS filed in the present case is signed by him. This witness has stated that he is not the employee of the defendant and he had filed the WS on the basis of record of the defendant company. This witness has stated that he had signed the WS being the AR of the defendant. This witness has stated that he had checked the record of the defendant at its Mumbai office. He has stated that Account department of the defendant company had shown the record to him. This witness has stated that he cannot tell the name of the official who had shown the record to him. This witness has stated that he is residing in Delhi. This witness has stated when he was appointed as AR of the defendant then he had checked the record of the defendant company. This witness has stated that he is not aware about the name of Managing Director of defendant company but the name of its Director is Mr. Rakesh Kumar Aggarwal. This witness has admitted that he has no personal knowledge about the present case. This witness has voluntarily stated that he has no personal knowledge regarding day to day affairs of the defendant company. He has admitted that the CS (Comm.) No. 359/2024 -9- defendant company was running its office on the address mentioned in plaint till Jan, 2024. This witness has voluntarily stated that defendant company never operated its office from plot No. 94/7, Block-2, WHS Kirti Nagar, Delhi. This witness has stated that he used to sit in this office.
12. I have heard Ld. Counsels for both the parties at length and perused the record carefully.
13. My issue-wise findings are as under:-
14. Issue No. 1- Whether the present suit is filed within limitation? (OPP) The burden to prove this issue is upon the plaintiff. It is contended by Ld. Counsel for plaintiff that the present suit is filed within the period of limitation. On the other hand, Ld. Counsel for defendant contends that last transaction between the plaintiff and defendant had taken place on 25.07.2017 and the present suit is filed in the year, 2024 i.e. beyond the period of limitation. Ld. Counsel for plaintiff has drawn my attention towards the email dated 04.09.2019 which is Ex. PW-1/13. This email was sent by Ms. Sugandha from email ID [email protected] to the plaintiff and others. In this email, it is admitted that there is outstanding amount of Rs. 3,93,621.75 paise in Asis Industries which is confirmed. Ld. Counsel for plaintiff has also drawn my attention towards email dated 02.02.2022 sent by Sugandha Surve from email ID [email protected] to the plaintiff and others. In this email it is mentioned that "as per our mail dated 04.09.2019, we CS (Comm.) No. 359/2024 -10- have clearly mentioned in point no. 5 that Asis Plywood Pvt. Limited has undergone insolvency proceedings and not related to us. We have confirmed balance of Rs. 3,93,621.75 in Asis Industries Limited under Point No. 4". DW-1 has clearly admitted that e-mail ID [email protected] is on the domain of the defendant company. DW-1 has clearly admitted that email ID [email protected] is on the domain of defendant company and through this domain/ email the emails Ex. PW-1/13 & Ex. PW-1/14 were sent to the plaintiff and copies of both these emails were sent at email ID [email protected] of Sh. Rakesh Aggarwal and email ID [email protected] of Sh. Gaurav Agarwal. DW-1 has admitted email ID [email protected] belongs to one of the Director Mr. Rakesh Agarwal and email ID i.e. [email protected] belongs to Mr. Gaurav Agarwal. DW-1 has admitted that Mr. Gaurav Agarwal is one of the Director of the defendant company. So both the emails Ex. PW-1/13 & Ex. PW-1/14 were sent by Sugandha from email ID [email protected] and copies were sent to both the Directors. Both the Directors are aware about the emails and liability of defendant towards the plaintiff.
15. Section 18 of the Limitation Act reads as under:-
18. Effect of acknowledgement in writing- (1) Whether, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, of by any person through CS (Comm.) No. 359/2024 -11- whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
Ld. Counsel for plaintiff has drawn my attention towards the Non-Starter Report. This document is admitted by defendant during admission/denial of documents and document is exhibited as Ex. P-1. This document shows that plaintiff has applied for pre-institution mediation on 05.01.2024 and non-starter report was issued on 07.02.2024. If we deduct the period from 05.01.2024 to 07.02.2024 and count the period of limitation as per email dated 02.02.2022, the present suit has been filed on 08.04.2024 i.e. within the period of limitation. I am of the view that plaintiff is able to prove this issue. Accordingly issue no. 1 is decided in favour of the plaintiff and against the defendant.
16. Issue No. 2 - Whether this court has territorial jurisdiction to try and entertain the present suit ?(OPP) The burden to prove this issue is upon the plaintiff. It is contended by Ld. Counsel for plaintiff that defendant is having one of its office at Plot No. 94/7, Block-2, WHS, Kirti Ngar, West Delhi, New Delhi-110015. The plaintiff in the memo of parties has mentioned the address of defendant as Plot No. 94/7, Block 2, WHS, Kirti Nagar, West Delhi, New Delhi-110015 and also at A Wing, 2nd Floor Mhatre Pen Building, Senaptati Bapat Marg, Dadar, Mumbai-400028 and 201, 2nd Floor, 18, Prime Centre, S V Road, Above Vijay Sales Santacruz, Mumbai-400054. During cross examination, DW-1 has clearly admitted that defendant was running its office on the address mentioned in plaint till January, 2024 and he used to sit in this CS (Comm.) No. 359/2024 -12- office. This witness in clear terms admitted that he is residing in Delhi. As DW-1 has clearly admitted that he used to sit in Delhi office, I am of the view that plaintiff is able to prove that defendant is having one of its at Kirti Nagar, Delhi. During arguments, Ld. Counsel for plaintiff has given the bank account details of the plaintiff and vehemently argued that plaintiff is having account in RBL Bank, Rajouri Branch at J-13/52, Basement & Ground, Rajouri Garden, New Delhi-110027. Ld. Counsel for plaintiff has filed statement of account which shows that payment of Rs. 4 lacs was made by the defendant in this account on 05.11.2016. During arguments, it is not disputed by Ld. Counsel for defendant that payment of Rs. 4 lacs was not made in RBL Bank which is situated in Rajouri Garden. Defendant has not given any suggestion to PW-1 that defendant is not having any office at Kirti Nagar, Delhi. So, the plaintiff is able to prove that defendant has made payment of Rs. 4 lacs in RBL Bank account of plaintiff which is situated in Rajouri Garden. Reliance can be placed on judgment titled as "M/s. Auto Movers Vs. Luminous Power Technologies Pvt. Ltd." wherein, it is held that "when, in the present case, the part cause of action has arisen also on account of the payments made by the petitioner/ defendant directly into the bank account of the respondent/plaintiff, even if these were not on regular basis, since there is nothing to show that the place of payment had been fixed, even without following the principle that the "debtor must seek out the creditor", it is clear that the Delhi Courts have jurisdiction to try the suit and the invoices does not vest jurisdiction in a court which had no jurisdiction at all".
CS (Comm.) No. 359/2024 -13-In view of the judgment discussed above, I am of the view that this court has jurisdiction to try and entertain the present suit. Accordingly, this issue no. 2 is decided in favour of the plaintiff and against the defendant.
17. Issue No. 3- Whether the plaintiff is entitled to recovery of Rs. 11,49,459/- ? (OPP)
18. At the very Outset, I may observe that the provisions of Section 2 (1) (c)(xviii) of Commercial Courts Act, 2015 are very clear which reads as under:-
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipments and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce.
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreement;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv)partnership agreements;
(xvi) technology development agreements;CS (Comm.) No. 359/2024 -14-
(xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreement for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
19. The provisions of Section 2 (1) (c) (xviii) of Commercial Courts Act as above are very much clear. Sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee may be oral or written. Therefore, the facts which alleged in the plaint comes under the Commercial disputes.
20. Secondly, now the question arises whether this Court has the pecuniary jurisdiction to adjudicate the matter which is dispute. In this regard, the provisions of Section 3 of Commercial Courts Act, 2015 provides that:
Section 3 : Constitution of Commercial Courts:
(1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:CS (Comm.) No. 359/2024 -15-
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary. ] 3[1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.]
21. Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs. 3,00,000/-. In the present case, the claim amount which is shown in the plaint is of Rs. 11,49,459/-. So, commercial court has jurisdiction to try and entertain the present suit.
22. The burden to prove this issue is upon the plaintiff. To prove this issue, AR of the plaintiff appeared as PW-1 and proved the certified true copy of the Board Resolution dated 20.07.2022 as Ex. PW-1/1, copies of invoices as Ex. PW-1/2 to Ex. PW-1/8, the hard copies of ledger account from 27.01.2017 to 31.03.2017, 01.04.2017 to 31.03.2018 & 01.04.2020 to 31.03.2024 as Ex.
CS (Comm.) No. 359/2024 -16-PW-1/9 to Ex. PW-1/11, Non Starter Report dated 07.02.2024 as Ex. PW-1/12, Emails dated 04.09.2019 & 02.02.2022 as Ex. PW-1/13 & Ex. PW-1/14, certificate under Order XI Rule 6(3) CPC read with Section 65B of Indian Evidence Act in respect of computer generated copies of invoices/bills/ debit notes and ledger account as Ex. PW-1/15 and Certificate under Order XI Rule 6(3) CPC read with Section 65B of Indian Evidence Act in respect of emails dated 04.09.2019 & 02.02.2022 as Ex. PW-1/16.
It is contended by Ld. Counsel for plaintiff that defendant has also admitted the liability of Rs. 2,75,139/- on behalf of M/s. Asis Plywood Pvt. Ltd. Admittedly, M/s. Asis Plywood Pvt. Limited has undergone liquidation and DW-1 has clearly stated that the company Asis Plywood Pvt. Limited has gone into liquidation by the order of Hon'ble NCLT, Delhi. I am of the view that amount of Rs. 2,75,139/- in respect of Asis Plywood Pvt. Limited cannot be said to be outstanding against the defendant company.
23. As vide emails Ex. PW-1/13 & Ex. PW-1/14 the defendant has admitted that a sum of Rs. 3,93,621.75 paise is due and payable by the defendant only. During arguments, it is contended by Ld. Counsel for plaintiff that the present suit for this amount may be decreed. In para no. 4 of the plaint, it is mentioned that the plaintiff agreed to the request of defendant and started providing clearing services and raising and sending its bills/invoices to defendant. The defendant in reply to this para of the suit has mentioned that this para needs no reply being admitted. As per the defendant nothing has remained balance as CS (Comm.) No. 359/2024 -17- claimed by the plaintiff. But the defendant has not placed on record any document to show that it had made payment to the plaintiff.
24. The plaintiff has placed on record invoices Ex. PW-1/2 to Ex. PW-1/8 which show that defendant has availed the clearing services of the plaintiff. The email Ex. PW-1/13 shows that there is outstanding in Asis Industries for Rs. 3,93,621.75 paise and vide email Ex. PW-1/14 dated 02.02.2022 the defendant has admitted to send previous email Ex. PW-1/13 and admitted that under point-4 there is balance of Rs. 3,93,621.75 paise. Defendant has not placed on record any document to show that it has made entire payment to the plaintiff. DW-1 has stated that he has no personal knowledge about the present case and he also stated that he is not aware about the names of any Director of defendant company. Defendant has not filed any ledger account to disprove the claim of the plaintiff. I am of the view that plaintiff is able to prove that it is entitled to recover a sum of Rs. 3,93,621.75 paise from the defendant. The plaintiff is able to prove this issue. Accordingly, issue no. 3 is decided in favour of the plaintiff and against the defendant.
25. Issue No. 4-Whether the plaintiff is entitled forinterest on the amount of Rs. 11,49,459/-, if yes at what rate and for what period ? (OPP) The plaintiff has claimed interest @ 18% per annum from the defendant. Ld. Counsel for plaintiff has drawn my attention towards invoices, wherein, it is mentioned that "All delayed CS (Comm.) No. 359/2024 -18- payments will attract interest @ @18% p.a.". Reliance can be placed in this regard on the judgment of Central Bank of India Vs Ravindra & Ors MANU/SC/0663/2001 passed by Hon'ble Supreme Court of India. In this judgment it is held that according to stroud's Judicial dictionary of Words and Phrases interest means, inter alia, compensation paid by the borrower to the lender for deprivation of the use of his money. In Secretary, Irrigation Department, Government of Orissa & Ors Vs G. C. Roy Manu/ SC/0297/1992 (1992) 2 SCC 508, it is held that the constitution bench opined that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This is the principles of Section 34 CPC.
In this judgment, Judgment of Dr. shamlal Narula Vs CIT Punjab MANU/ SC/0109/1964 (53) was also relied upon wherein it is held that interest is paid for the deprivation of the use of the money. In this judgment it is also held that in whatever category "interest in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is charge for the use of forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by customs or usage, for use of money, belonging to another, or of the delay in paying money after it has become payable.
Reliance can also be placed on the judgment of Aditya Mass Communication (P) Ltd Vs APSRTC MANU/SC/0759/2003 wherein Hon'ble Supreme Court granted interest @ 12% per annum. Reliance can also be placed on the CS (Comm.) No. 359/2024 -19- judgment of "M/s IHT Network Limited Vs. Sachin Bhardwaj"
in RFA No. 835/2016 & CM Appl.14617/2020 wherein the Hon'ble High Court of Delhi has granted interest @12% per annum. I am of the view that interest claimed by the plaintiff is every excessive and plaintiff is entitled to interest @ 12% per annum which is reasonable and usually prevailing market rate of interest.
26. RELIEF:
In view of my above discussions, the suit of the plaintiff is partly decreed and a decree of Rs. 3,93,621.75 paise is passed in favour of the plaintiff and against the defendant. The plaintiff is also entitled to interest @ 12% per annum on the amount of Rs. 3,93,621.75 paise from 04.09.2019 (from the date of email dated 04.09.2019) till realization. Plaintiff is also entitled to the cost of the suit. Decree sheet be prepared accordingly. File be consigned to record room, after necessary compliance.
Announced in the (NARESH KUMAR MALHOTRA)
open court on 21.11.24 District Judge, Comm. Court-06
West, Tis Hazari Courts
Extension Block, Delhi/21.11.2024
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2024.11.21
16:54:38
+0530
CS (Comm.) No. 359/2024 -20-