Delhi District Court
Girish Bhasin vs Chander Kanta on 18 October, 2024
1
IN THE COURT OF SH. BHUPESH KUMAR: DISTRICT JUDGE
(COMMERCIAL COURTS)-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CS (Comm) No. 39/2019
Girish Bhasin,
s/o late Sh. S.P.Bhasin
Prop. of M/s Exclusive Systems,
having its office at :
404, Meghdoot Building,
94, Nehru Place, New Delhi.
... Plaintiff
Versus
1. Chander Kanta
Prop. Of M/s Parth Enterprises
office at : 113, Bajaj House,
97, Nehru Place, New Delhi 110019.
also at 2698/29, Upper Ground Floor,
Tughlaqabad Extension, New Delhi.
2. Anita Jaina,
Authorized Signatory of M/s Parth Enterprises,
Office at 2698/29, Upper Ground Floor,
Tughlaqabad Extension, New Delhi.
....Defendants
Date of Institution : 13.03.2019
Date of Arguments : 07.10.2024
Date of Judgment : 18.10.2024
JUDGMENT
1. The present suit has been filed by the plaintiff Mr.Girish Bhasin being proprietor of M/s Exclusive Systems, against defendant no.1 Chander Kanta proprietor of M/s Parth Enterprises and defendant no.2 Ms.Anita Jaina, Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
2024.10.18 CS (Comm) 39/2019 Bhupesh Kumar 16:53:04 +0530 District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 2 authorized signatory of M/s Parth Enterprises, seeking decree of sum of Rs.8,43,754/-against defendants.
2. Brief facts of the matter as emerged from the plaint are that plaintiff is engaged in trading of computer parts etc. and defendants had business transactions with plaintiff as defendants used to purchse electronic goods from plaintiff. It has been further submitted that plaintiff used to supply goods in strict conformity with the orders placed by defendants for which plaintiff has raised various invoices. It has been further submitted that defendant had issued certain cheques drawn at The Shamrao Vithal Cooperative Bank Ltd., Nehrul Place, in order to pay due amount to plaintiff, but when the cheques were presented in bank for encashment, the same were dishonored vide return memo dated 17.03.2016 for which complaint has been filed before the Court of Ld. MM.
It has been further submitted that as per account statement of plaintiff, a sum of Rs.4,90,555/- were due and payable by defendant. It has been further submitted that interest on said principal amount @ 24% from 13.01.2016 to 13.01.2019 comes to Rs.3,53,199/-, hence, defendnat is liable to pay total sum of Rs.8.47,754/- alongwith interest. Inter alia, on the basis of these submissions, prayer has been made to pass decree in favor of plaintiff and against defendants.
3. The summons of suit were issued to both defendants.
Defendant no.1 was not served through ordinary mode and publication qua service of this defendant was made in daily newspapers 'Hindustan Times' and 'Veer Arjun' on 19.01.2024. But despite service the defendnat no.1 has not filed written statement within sitpulated period and vide order date 06.05.2024, Digitally signed by BHUPESH BHUPESH KUMAR Date:
KUMAR CS (Comm) 39/2019 Bhupesh Kumar 2024.10.18 16:53:19 District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 +0530 3 the opportunity granted to defendant no.1 to file written statement was closed by order, the defence of defendant no.1 was struck off and was also proceeded ex-parte.
4. Defendant no.2 has contested the suit by filing written statement. In the written statement, defendant no.2 has taken preliminary objections that suit of plaintiff is bad for mis-joinder of necessary party as defendant no.2 being employee and authorized signatory of defendant no.1 was not personally liable to discharge any liability.
On merits, it was denied that plaintiff is proprietor of plaintiff concern. It was denied that plaintiff has supplied any goods to defendant no.2 or has raised any invoice. It has been further submitted that defendant no.2 has no liability to make any payment to plaitniff as defendant no.2 was only employee and AR of defendant no.1.
5. Replicaiton to the written statement of defendant no.2 was filed by plaintiff, wherein, the averments made in the written statement have been generally denied and those made in the plaint have been reiterated and reaffirmed.
6. On the basis of pleadings of parties, following issues were framed on 06.05.2024 :-
1. Whether the suit is bad due to mis-joinder of parties i.e. defendant no.2? OPD
2. Whether the plaintiff is entitled for decree of a sum of Rs.8,43,754/-
against defendants, as prayed for ? OPP
3. Whether the plaitniff is entitled for any interest as claimed, if so, at what rate and for what period? OPP
4. Relief.Digitally signed by BHUPESH
BHUPESH KUMAR Date:
CS (Comm) 39/2019 Bhupesh
KUMAR Kumar
2024.10.18
16:53:35
District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 +0530 4
7. In support of its case, plaintiff Mr.Girish Bhasin has examined himself as PW-1 and Mr. Amit Kumar Toppo, Assistant Ahlmad (JJA) as PW-2.
PW-1 has lead his evidence by way of affidavit Ex. PW1/A, wherein he has made similar deposition to that of contents of the plaint. The witness has further relied upon provisional GST registration certificae of plaintiff as Ex. PW1/1, statement of account of defendant maintained by plaintiff as Ex.PW1/2, computer generated invoice numbers, 459, 460, 465, 473, 479, 487, 490, 492, 500, 508, 510, 526, 539, 544, 574, 581, 582, 583,585, 591, 601, 603, 605, 616, 627, 648, 650, 660, 663, 708, 752, 778, 782 AS Ex.PW1/3 to Ex. PW1/35, respectively, office copy of legal notice as Ex.PW1/46, tracking reports from postal authority as Ex.PW1/47 & Ex.PW1/48, non-starter report as Ex.PW1/O and certificate U/s 65 B of Evidence Act as Ex.PW1/K. The witness has further relied upon photocopies of cheques alongwith return memos as Mark A to J. The witness was cross-examined at length by Ld. Counsel for defendant. However, his cross-examination shall be considered at the time of appreciation of evidence.
8. PW-2 Mr.Amit Kumar Toppo, Asst. Ahlmad (JJA) has produced the case file related to complaint case no. 631434/16, titled as Girish Bhasin vs Anita, decided on 04.02.2020 and complaint case no. 631436/16, titled as Girish Bhasin vs Anita, decided on 04.02.2020. This witness has proved photocopies of chque nos. 068321, 068322, 068326, 067944, 068246 and 068245, as Ex.PW2/1 to Ex.PW2/6. This witness has further brought on record copies of cheqeus bearing no.067890, 067859, 067892 and 067858 as Ex.PW2/7 to Ex.PW2/10.
Digitally
signed by
BHUPESH
BHUPESH KUMAR
KUMAR Date:
CS (Comm) 39/2019 Bhupesh Kumar
2024.10.18
16:53:48
District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 +0530 5 During cross-examination, this witness has stated to the effect that copy of judgment dated 04.09.2020 is Ex.PW2/DA, copy of statement of Sh. Ravi Prakash Mittal, Assistant Manager are Ex.PW2/DB. It has been further submitted that statement of Surender Kumar Parkey of GST Office is Ex.PW2/DC. PE was closed.
9. Defendant no.2 Ms.Anita Jaina has examined herself as DW-1, and has lead her evidence by way of affidavit Ex. DW1/A, wherein, she has made similar deposition to that of contents of the written statement. She has further relied upon copy of judgment in complaint U/s 138 of NI Act as Ex.DW1/3 (already exhibitted as Ex.PW2/DA). She has further relied upon documents i.e. provisional certificate of registration of M/s Parth Enterprises as Mark A and bank record of M/s Parth Enterprises from SVC Bank as Mark B. The witness was cross-examined at length by Ld. Counsel for plaintiff. However, her cross- examination shall be considered at the time of appreciation of evidence.
10. DW-2 is Sh. Rahul S Varunkar, Asstt. Manager working at SVC Cooperative Bank Ltd. He deposed to the effect that account no.125004180000192 with their bank is in the name of M/s Parth Entprises and the bank account was opened at the instance of Ms. Chanderkanta. The witness has brought on record account opening form alongwith supporting documents as Ex. DW2/A (43 pages colly.) During his cross-exmaination by Ld. Counsel for plaintiff, the witness has stated to the effect that cheque book of said account was issued in the name of firm. Ms. Chanderkanta was authorized signatory of M/s Parth Enterprises, as per bank records.
Digitally signed by BHUPESHBHUPESH KUMAR Date:
KUMAR 2024.10.18 CS (Comm) 39/2019 Bhupesh Kumar 16:54:01 +0530 District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 6
11. DW-3 is Mr. Khemraj, Junior Assistant, Department of Trade and Taxes. He has deposed to the effect that he has brought the summoned record that is DVAT form, part A to part D and application form A. he further deposed to the effect that name of applicant as per DVAT form A to D is M/s Parth Enterprises and as per Part D Ms. Chanderkanta is authorized signatory. The witness has proved all these documents on record as Ex.DW3/1. DE was closed on behalf of defendant no.2.
12. I have heard the arugments of Mr.Avinash Kumar, Ld. Counsel for plaintiff and Ms. Radhika Arora, Ld. Counsel for defendant no.2 besides going through the material available on record carefully.
13. My issue wise findings are as under :
Issue no. 1. Whether the suit is bad due to mis-joinder of parties i.e. defendant no.2? OPD The onus to prove this issue was upon defendant no.2. Ld. Counsel for defendant no.2 submitted that defendant no.2 was simply employee and authorized signatory of defendant no.1. It has been further submitted that any act done by defendant no.2 with plaintiff in respect to any business transaction was done being employee and AR of defendant no.1. Therefore, defendant no.2 cannot be held personally liable for any act, if done on behalf of defendant no.1. On the basis of these submisisons, it has been stated that defendant no.2 is not necessary party.
Per contra, Ld. Counsel for plaintiff has vehemently submitted that defendant no.2 has placed orders with plaintiff. The goods were received by defendant no.2 as defendant no.2 has signed all invoices. It has been further submitted that defendant no.2 has even signed the cheques in capacity of Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
2024.10.18 CS (Comm) 39/2019 Bhupesh Kumar 16:54:16 +0530 District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 7 proprietor of M/s Parth Enterprises. It has been further submitted that thre is sufficient material on record that defendant no.2 has acted in her personal capacity and liable to make the due payment and was necessary party.
Heard. Material perused.
From perusal of invoices brought on record by plaintiff Ex.PW1/3 to Ex.PW1/35, it has been found that most of the invoices bear signatures of defendant no.2. However, when explanation in this respect was called from defendant no.2 i.e. examined as DW-1, the witness has denied her signatures on all these invoices.
Further, from perusal of cheques Ex.PW2/1 to Ex.PW2/10 it is found that same bear signatures of defendant no.2. On this aspect, during cross- examination DW-1 has admitted her signatures on all these cheques, however, she further volunteered that she has signed said cheques as employee of defendant no.1.
Here for the sake of arguments, if, it is presumed that DW-1 has made wrong deposition that she has received the goods and signed the invoices Ex.PW1/3 to Ex.PW1/35, and that defendant no.2 has also signed cheques Ex. PW2/1 to 10, the question arises whether defendant no.2 is liable to discharge any liability.
In this respect, two documents have been perused carefully. First is qua account opening form etc. of M/s Parth Enterprises with SVC Cooperative Bank Ltd. Ex.DW2/A. As per this document, Ms.Chanderkanta i.e. defendant no.1 is authorized signatory of M/s Parth Enterprises. The another document is Ex. DW3/1 i.e. DVAT documents, which is in the name of M/s Parth Enterprises and Ms.Chanderkanta is authorized signatory. These documents further reflect that the name of Ms.Chanderkanta has been mentioned against Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
CS (Comm) 39/2019 Bhupesh Kumar
2024.10.18
16:54:29
District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 +0530 8 the column full name of person having interest in business and as proprietor of M/s Parth Enterprises.
From perusal of both these documents, it is found that only defendant no.1 is proprietor of firm and defendant no.2 has no right in personal capacity in the firm M/s Parth Enterprises.
Further the fact that defendant no.2 is authorized signatory of M/s Parth Enterprises has been mentioned even in para no.3 of plaint. Further, from close scrutiny of evidence of DW-1 i.e. defendant no.2, it is found that this witness in her examination-in-chief in unmistakable terms deposed to the effect that she is not personally liable to make any payment to plaintiff as she has acted being employee and AR qua business transactions in this matter. This witness was cross exmained at length and there is nothing in her cross- examination which suggest that she is personally liable to make any payment to plaintiff.
Further, as per Section 230 of Indian Contract Act, in the absence of any contract, inter alia, the agent cannot be personally liable qua enforcement of any contract. Meaning by he can neither sue nor sued for the contract made on behalf of principal.
In the light of this discussion, it is found that there is sufficient material on record which reflect that defendant no.2 has acted in this matter being employee and AR of defendant no.1, hence, cannot be held personally liable and is not necessary party to the present suit. Hence, the suit against defendant no.2 stands dismissed. Issue no.1 stands decided accordingly.
14. Issue no. 2 : Whether the plaintiff is entitled for decree of a sum of Rs.8,43,754/- against defendants, as prayed for ? OPP Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
CS (Comm) 39/2019 Bhupesh Kumar
2024.10.18
16:54:45 +0530
District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 9 The onus to prove this issue was upon plaintiff. Ld. Counsel for plaintiff has submitted that defendant no.1 is proprietor of firm M/s Parth Enterprises and defendant no.2 Ms. Anita Jain is its authorized signatory. It has been further submitted that plaintiff has examined PW-1 Mr.Girish Bhasin, proprietor of plaitniff firm. He has brought on record the relevant invoices vide which the material was supplied to defendants. The defendant no.2 has accepted the material on behalf of defendant firm and she has signed almost all invoices qua receipt of material. It has been further submitted that this witness has also brought on record cheques and return memos as Ex.PW1/36 to Ex.PW1/45. It has been further submitted that as per statement of account maintained by plaintiff a sum of Rs.4,90,555/- was due and outstanding towards defendant as on 18.03.2016. It has been further submitted that after adding interest @ 24% per annum w.e.f. 13.01.2016 to 13.01.2019, the interest amount comes to Rs.3,53,199/- and the total due amount as on filing of suit comes to Rs.8,43,754/-.
Heard. Material perused.
The suit against defendant no.2 already dismissed as discussed in issue no.1.
In respect to defendant no.1 i.e. Ms.Chander Kanta, proprietor of M/s Parth Enterprises, the uncontroverted testimony of PW1 reflects that electronic items were supplied to M/s Parth Enterprises by plaintiff from time time as the invoices vide which the material was supplied by plaintiff to M/s Parth Enterprises have been proved on record as Ex.PW1/3 to Ex.PW1/35.
Further, PW-1 has also brought on record the cheques and return memo etc. as Ex.PW1/36 to Ex.PW1/45 which reflect that said cheques were issued on behalf of firm M/s Parth Enterprises in order to discharges its legal liability. Further, PW1 has also brought on record the statement of account of defendant Digitally signed by BHUPESH BHUPESH KUMAR Date:
CS (Comm) 39/2019 Bhupesh
KUMAR Kumar
2024.10.18
16:55:06
District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 +0530 10 maitained by plaintifs as Ex.PW1/2, and as per statement on account as on 18.03.2016 a sum of Rs.4,90,555/- were outstanding against defendant firm. However, the entries on 18.03.2016 are in respect to dishonor of cheques issued by defendant. However, the said cheques were received on 17.03.2016 as per ledger account Ex.PW1/2. The issuing of cheques amounts to acknowledgment of debt. Hence, the period of limitation can be safely computed from 17.03.2016. The present suit has been filed on 13.03.2019 i.e. within the period of limitation.
However, as per statement of account Ex.PW1/2, a sum of Rs.4,90,555/- was due and payable by defendant to plaintiff and this fact stands proved on record.
The present suit has been filed for sum of Rs.8,43,754/- by calculating interest @ 24% per annum from 13.01.2016 to 13.01.2019 and the said interest was calculated to the tune of Rs.3,53,199/-. In respect to pre-suit interest there is condition in the tax invoices Ex.PW1/3 to Ex.PW1/35 that interest @ 24% per annum would be charged in case the due bill not paid within due date. But what would be the due date has not been mentioned.
Considering the entire facts and circumstances, it is found that interest calculated @24% on principal amount is exhorbitant and further found that the pre-suit interest @ 10% would be sufficient to meet ends of justice from due date i.e. 17.03.2016.
15. Issue no.3. Whether the plaitniff is entitled for any interest as claimed, if so, at what rate and for what period? OPP The plaintiff has claimed pendente lite and future interest @ 24% per annum and interest at said rate is found to be on higher side. Considering the Digitally signed by BHUPESH BHUPESH KUMAR Date: CS (Comm) 39/2019 KUMAR Bhupesh 2024.10.18 Kumar 16:55:21 District Judge(Commercial)-05, Saket Courts, South East/18.10.2024 +0530 11 facts and circumstances, it is found that interest @ 10% per annum would be sufficient to meet the ends of justice.
16. Relief.
In view of aforesaid discussion, the suit filed by the plaintiff stand dismissed against defendant no.2 Ms.Anita Jaina.
Further, the suit stands decree for a sum of Rs.4,90,555/- in favour of the plaintiff Mr. Girish Bhasin and against defendant No. 1 Ms.Chander Kanta, proprietor of M/s Parth Enterprises along with interest @ 10% per annum, from 17.03.2016 till its realization along with cost of Rs.20,000/- which includes court fee, legal fee and other expenses incurred by the plaintiff in the present suit (here it is made clear that plaintiff shall not claim any interest on the cost).
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Dictated and announced Digitally signed
by BHUPESH
KUMAR
on 18th October, 2024. BHUPESH
KUMAR
Date:
2024.10.18
(Bhupesh Kumar) 16:55:38
+0530
District Judge (Commercial)-05
South-East District, Saket Courts, New Delhi CS (Comm) 39/2019 Bhupesh Kumar District Judge(Commercial)-05, Saket Courts, South East/18.10.2024