Delhi District Court
Nk Sales Corporation vs M/S Kp Flexipak Private Limited on 24 February, 2024
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) No. 894/2022
CNR No. DLWT010109002022
24.02.2024
Naresh Kumar Sah,
Proprietor, N.K. Sales Corporation,
SC-1/22, Second Floor,
Block F, Mansarovar Garden,
New Delhi-110015
.....Plaintiff
VS
M/s. K.P. Flexipak Pvt. Ltd.
B-92, Ist Phase, Mayapuri,
Industrial Area, Delhi-110064.
....Defendant
Date of institution : 15.11.2022
Date of arguments : 24.02.2024
Date of judgment : 24.02.2024
SUIT FOR RECOVERY OF Rs. 33,07,952/- ALONGWITH
PENDENTE-LITE AND FUTURE INTEREST.
JUDGMENT:
1. Vide this judgment, I am deciding the suit for recovery of Rs. 33,07,952/- alongwith pendente-lite and future interest filed by the plaintiff against the defendant.
2. The essential facts for disposal of present suit as per plaint are as that the plaintiff is a proprietorship firm, having its registered office at SC-1/22, Second Floor, Block-F, Mansarovar Garden, New Delhi-110015 and Sh. Naresh Kumar Sah is the sole proprietor. The plaintiff is doing business of PVC resins and plastic granules. It is mentioned that defendant is a registered CS (Comm.) No. 894/2022 -1- company incorporated on 27.08.2009 and registered office of the defendant is B-92, Phase-I, Mayapuri Industrial Area, New Delhi-110064. As per the plaintiff in November, 2016, the Directors of the defendant company approached the plaintiff to purchase plastic Granules at its official address. They also gave assurance to the plaintiff company to make payment and plaintiff started supplying plastic granules to the defendant company as per their demands. In the year, 2016 plaintiff had issued 85 invoices/ bills against the supply of plastic granules to the defendant amounting to Rs. 2,89,43,402.50 paise for which plaintiff was maintaining a proper open and running account in the form of ledger reflecting the transaction between the parties. The said invoices are duly reflected in the ledger account maintained by the plaintiff. The details of the invoices/ bills are as under:-
S. No. Date Invoice No. Amount (in Rs) 1. 28.11.2016 16-17/0228 5,50,000/- 2. 07.12.2016 16-17/0244 1,32,064/- 3. 17.12.2016 16-17/0258 5,65,322/- 4. 02.01.2017 16-17/0279 5,27,770/- 5. 09.01.2017 16-17/0284 2,22,906/- 6. 16.01.2017 16-17/0289 5,82,443/- 7. 30.01.2017 16-17/0326 5,05,287/- 8. 31.01.2017 16-17/0327 1,55,899/- 9. 31.01.2017 16-17/0328 1,32,802/- 10. 31.01.2017 16-17/0329 2,23,000/- 11. 31.01.2017 16-17/0330 1,08,980/- 12. 31.01.2017 16-17/0331 1,94,016/- 13. 31.01.2017 16-17/0332 95,272/- 14. 01.02.2017 16-17/0340 1,36,002/- 15. 08.02.2017 16-17/0350 5,90,562/- 16. 08.02.2017 16-17/0351 2,32,025/- CS (Comm.) No. 894/2022 -2- 17. 08.02.2017 16-17/0352 1,38,588/- 18. 07.03.2017 16-17/0408 1,15,408/- 19. 07.03.2017 16-17/0409 2,38,165/- 20. 07.03.2017 16-17/0410 1,57,408/- 21. 08.03.2017 16-17/0413 3,53,978/- 22. 08.03.2017 16-17/0414 3,53,975/- 23. 16.03.2017 16-17/0425 1,22,203/- 24. 16.03.2017 16-17/0426 4,85,050/- 25. 16.03.2017 16-17/0427 1,56,745/- 26. 29.03.2017 16-17/0440 1,59,588/- 27. 30.03.2017 16-17/0457 2,36,425/- 28. 05.04.2017 17-18/0001 3,59,519/- 29. 14.04.2017 17-18/0006 5,190/- 30. 15.04.2017 17-18/0008 3,59,819/- 31. 27.04.2017 17-18/0014 1,53,912/- 32. 28.04.2017 17-18/0016 2,26,030/- 33. 28.04.2017 17-18/0023 5,16,633/- 34. 05.05.2017 17-18/0036 63,698/- 35. 11.05.2017 17-18/0038 1,56,003/- 36. 19.05.2017 17-18/0039 3,66,419/- 37. 19.05.2017 17-18/0040 1,54,689/- 38. 19.05.2017 17-18/0041 1,51,014/- 39. 26.05.2017 17-18/0049 1,10,005/- 40. 26.05.2017 17-18/0050 3,01,957/- 41. 27.05.2017 17-18/0051 1,47,389/- 42. 31.05.2017 17-18/0055 47,308/- 43. 31.05.2017 17-18/0056 1,28,703/- 44. 02.06.2017 17-18/0057 2,49,518/- 45. 02.06.2017 17-18/0058 1,49,959/- 46. 10.06.2017 17-18/0071 6,23,165/- 47. 23.06.2017 17-18/0102 73,006/- 48. 23.06.2017 17-18/0103 73,006/- 49. 30.06.2017 17-18/0111 2,46,796/- 50. 21.07.2017 17-18/0041 1,18,944/- 51. 04.08.2017 17-18/0074 1,22,484/- 52. 12.08.2017 17-18/0087 1,82,428/- CS (Comm.) No. 894/2022 -3- 53. 06.09.2017 17-18/0171 2,40,248/- 54. 12.09.2017 17-18/0178 2,40,248/- 55. 26.09.2017 17-18/205 2,40,248/- 56. 10.10.2017 17-18/234 5,93,540/- 57. 14.10.2017 17-18/249 1,48,444/- 58. 16.10.2017 17-18/250 5,77,610/- 59. 26.10.2017 17-18/261 1,36,644/- 60. 08.11.2017 17-18/280 5,85,280/- 61. 11.11.2017 17-18/288 5,98,260/- 62. 13.11.2017 17-18/289 4,65,156/- 63. 22.11.2017 17-18/306 9,80,462/- 64. 30.11.2017 17-18/324 5,68,170/- 65. 30.11.2017 17-18/325 3,63,912/- 66. 20.12.2017 17-18/382 3,40,902/- 67. 25.12.2017 17-18/397 5,68,170/- 68. 28.12.2017 17-18/406 1,37,824/- 69. 05.01.2018 17-18/418 7,05,994/- 70. 06.01.2018 17-18/421 3,78,072/- 71. 18.01.2018 17-18/450 5,68,170/- 72. 31.01.2018 17-18/493 5,68,170/- 73. 10.04.2018 18-19/011 2,62,668/- 74. 10.04.2018 18-19/012 3,51,522/- 75. 14.04.2018 18-19/016 5,85,870/- 76. 14.04.2018 18-19/017 6,38,970/- 77. 25.04.2018 18-19/034 5,97,670/- 78. 15.05.2018 18-19/081 15,90,640/- 79. 16.05.2018 18-19/082 8,15,439/- 80. 18.10.2018 18-19/0307 3,35,769/- 81. 24.10.2018 18-19/0318 5,66,400/- 82. 24.10.2018 18-19/0319 3,86,568/- 83. 02.11.2018 18-19/0335 6,23,925/- 84. 29.07.2019 19-20/0277 2,81,430/- 85. 30.07.2019 19-20/0285 3,41,167/- Total Rs. 2,89,43,402.50 CS (Comm.) No. 894/2022 -4-
It is further averred that the goods supplied by the plaintiff to the defendant were duly delivered and the defendant company has retained and utilized the goods supplied by the plaintiff. The plaintiff has placed on record invoices. The plaintiff has annexed copy of invoice dated 15.05.2018 to 30.07.2019. It is mentioned that copy of invoices from 28.11.2016 till 25.04.2018 are not being annexed. As per the plaintiff, a sum of Rs. 2,89,43,402.50 paise was due and defendant had made payment of Rs. 2,68,35,212/- from 22.12.2016 till 09.09.2019. The defendant company had made last payment of Rs. 50,000/- on 09.09.2019. The plaintiff has also attached ledger for the relevant period. As per the plaintiff, the ledger account for the period from 01.04.2019 to 22.12.2020 clearly shows that outstanding liability of the defendant company towards the plaintiff is Rs. 21,08,190.50 paise. Plaintiff has also attached the copy of bank statement for the period from 01.04.2018 till 31.03.2019 of account no. 0012293551 of Kotak Mahindra Bank, Rajouri Garden, New Delhi and copy of bank statement for the period from 16.05.2019 till 01.11.2019 of account no. 53405044024 with Standard Chartered Bank, Janakpuri branch reflecting the credit payment made by the defendant. It is mentioned that thereafter, the Directors of the defendant company issued a cheque bearing no. 895807 dated 14.08.2019 for a sum of Rs. 5,20,528/- drawn on Canara Bank, Mayapuri Branch, New Delhi in part clearance of its liability. The Directors of the defendant company assured the plaintiff this cheque would honour on its presentation. The plaintiff relying on the assurances of the Directors of the defendant company, presented the cheque for encashment to its banker but the above mentioned cheque was CS (Comm.) No. 894/2022 -5- dishonoured and returned unpaid with the returning memo dated 16.08.2019 with the remarks "Exceeds Arrangement". The Directors of the defendant company again assured the plaintiff that the outstanding payment of Rs. 21,08,190.50 paise would be cleared soon. The defendant company further assured the plaintiff that the cheque no. 895807 dated 14.08.2019 amounting to Rs. 5,20,528/- would be cleared within a period of one month and hence, requested the plaintiff to present the cheque after one month. Believing the assurance of the defendant company, the plaintiff again presented the cheque for encashment to its banker but the same was dishonoured and returned back vide memo dated 01.11.2019 with the remarks "Exceeds Arrangement". The defendant company intentionally and deliberately avoided the plaintiff and did not respond the plaintiff with the aim to escape from its monetary liability. It is mentioned that plaintiff sent a legal notice dated 27.11.2019 through Speed Post and Courier to the defendant company. The plaintiff has not received any response to the legal notice dated 27.11.2019. The legal notice was duly served at the registered office of defendant company through Courier. The plaintiff has also filed complaint u/s 138 NI Act against the defendant company. As per the plaintiff, the defendant company is liable to pay pre suit interest @ 18% per annum on the amount of Rs. 21,08,190.50 paise for the period from 09.09.2019 till the date of filing of present suit i.e. 05.11.2022 which comes to Rs. 11,99,762/-. It is prayed by the plaintiff that a decree of Rs. 21,08,190.50 paise towards the outstanding amount and pre-suit interst @ 18% per annum amounting to Rs. 11,99,762/- be passed in favour of the plaintiff and against the defendant. The plaintiff has also claimed CS (Comm.) No. 894/2022 -6- pendentelite and future interest @ 18% per annum till the realization of the decretal amount.
3. Defendant has filed written statement taking preliminary objections that the plaintiff is not a proprietory concern and Mr. Naresh Kumar Sah is not its proprietor. The plaintiff N.K. Sales Corporation is not a legal entity, hence suit cannot be filed. The present suit is without any cause of action. The present suit is devoid of any merits. The present suit is barred under Order IV and Order VII Rule 11 CPC. The plaintiff has not approached the court with clean hands and suppressed the material facts. The plaintiff has not placed on record the required and necessary documents which could substantiate its claim. It is mentioned that in the year, 2016, the defendant started purchasing goods from the plaintiff on credit basis. It was settled between the parties that plaintiff would supply the good quality of material to the defendant strictly as per its orders and specifications and in case of any sub-standard inferior/quality goods are supplied then same shall be returned back to plaintiff. The plaintiff on various occasions supplied sub-standard/inferior quality goods to the defendant. It is further mentioned that due to the supply of sub- standard/inferior quality goods, the defendant has suffered huge losses in terms of money and reputation as defendant's customers returned the goods back to the defendant and some customers even stopped doing business with the defendant. The plaintiff malafidely supplied the inferior quality goods to the defendant and also refused to pick sub-standard material supplied to the defendant. The defendant also asked the plaintiff to come to its office for the purpose of tallying the statement of accounts by CS (Comm.) No. 894/2022 -7- tallying that as per the books of account maintained by the defendant in the name of plaintiff, nothing is due and payable by the defendant to the plaintiff but despite assurance plaintiff did not come to the office of the defendant. The defendant was shocked to receive notice u/s 138 NI Act pending in the Court of Ld. MM, South-West District, Dwarka and this cheque was given as security to the plaintiff and cheque was misused by the plaintiff. The defendant came to now about the dishonour of the cheque in question only on 17.08.2019. The plaintiff never tried to meet the defendant and filed the present suit to harass and extort money from the defendant. The plaintiff is estopped to file the present suit by its own act and conduct. As per the defendant, no one can take advantage of its own wrong. In reply on merits, it is denied that plaintiff is a proprietorship firm or it has its registered office at SC-1/22, Second Floor, Block-F, Mansarovar Graden, New Delhi. It is denied that Mr. Naresh Kumar Sah is the sole proprietor of plaintiff. It is denied that the Directors of the defendant approached the plaintiff in the month of November, 2016 to purchase plastic granules at its official address. It is mentioned that the plaintiff and its Marketing advisor approached the defendant for the purpose of procuring purchase orders from the defendant for the sale of its products/ goods. It is admitted that the plaintiff started supplying goods to the defendant and it was mutually agreed that the plaintiff would supply the fine quality goods to the defendant strictly as per its order and specifications and in case any sub-standard or inferior quality goods are supplied, then the same shall be returned back to plaintiff. It is admitted that the plaintiff raised various invoices but the plaintiff many times supplied sub-standard & CS (Comm.) No. 894/2022 -8- inferior quality goods to the defendant and the defendant immediately informed the plaintiff regarding the same and also asked the plaintiff to take back sub-standard and inferior quality goods. It is also mentioned that the filing of the details of 85 bills is a matter of record. However, books of account maintained by the plaintiff are forged and fabricated. The plaintiff has not shown the details of sub-standard and inferior quality of goods which was supplied by the plaintiff to the defendant. It is admitted that goods were supplied by the plaintiff to the defendant vide various invoices, however, it is clarified that plaintiff has delivered number of times sub-standard and inferior quality of goods to the defendant. It is mentioned that plaintiff is bound to file each and every invoice to prove its claim. It is admitted that defendant company has made a total payment of Rs. 2,68,35,212/- from the period 22.12.2016 till 09.09.2019. It is admitted that the defendant company had made the last part payment of Rs. 50,000/- on 09.09.2019. It is denied that the ledger account clearly shows that the outstanding liability of the defendant company towards the plaintiff is Rs. 21,08,190.50 paise as on date. It is denied that the Directors of the defendant company issued and handed over a cheque bearing no. 895807 dated 14.08.2019 for a sum of Rs. 5,20,528/- drawn on Canara Bank, Mayapuri Branch, New Delhi in part clearance of its liability. It is denied that any assurance was given to the plaintiff that upon presentation the cheque would be encashed. It is mentioned that it was settled between the parties that defendant will give blank signed cheque to plaintiff every year as security and plaintiff in turn shall retain the new cheque by returning the old cheque to defendant. The aforesaid cheque was given to the CS (Comm.) No. 894/2022 -9- plaintiff in compliance of the said terms and conditions. As per the defendant, nothing was due and payable by the defendant, so the question of giving assurances does not arise. The plaintiff has presented the cheque for encashment even after receiving the whole amount from the defendant. It is vehemently denied that the cheque bearing no. 895807 dated 14.08.2019 for a sum of Rs. 5,20,528/- was again dishonoured and returned unpaid vide return memo dated 01.11.2019 with the remarks "Exceeds Arrangement". It is mentioned that defendant had no idea of the first dishonour of cheque and defendant came to know about dishonour of cheque for the first time when summons of complaint case bearing no. 1604/2020 were received. It is admitted that vide legal notice dated 27.11.2019, the plaintiff claimed the outstanding dues of Rs. 21,08,190.50 paise along with interest @ 18% per annum. As per the defendant, it had already paid the due and payable amount to the plaintiff. It is denied that the plaintiff company is maintaining an open, running and non-mutual account in the name of defendant company in its books of accounts. It is mentioned that as per the books of accounts of the defendant, nothing is due and payable and the defendant has already paid the said amount. It is also mentioned that after making payment of Rs. 50,000/- on 09.09.2019 nothing was due and payable by the defendant to the plaintiff. It is mentioned that plaintiff has not valued the suit for the purpose of court fees and jurisdiction and affixed proper court fees. Dismissal of suit is prayed by the defendant.
4. Plaintiff has filed replication and controverted the allegations made in the written statement and further re-affirmed the averments made in the plaint.
CS (Comm.) No. 894/2022 -10-5. On the pleadings of the parties, following issues were framed by me on 18.09.2023, which are as under:-
1) Whether there is no cause of action to file the present suit ? (OPD)
2) Whether the plaintiff is entitled for recovery of Rs. 33,07,952/- as claimed ? (OPP)
3) Whether the plaintiff is entitled for interest. If yes at what rate ? (OPP)
4) Relief.
6. In evidence plaintiff has examined Sh. Naresh Kumar Sah S/o Late B.P. Sah, Proprietor/AR of plaintiff company as PW-1. This witness has filed affidavit on the lines of the plaint and proved the MCA data of defendant company as Ex. PW-1/A, copy of invoices dated 15.05.2018 to 30.07.2019 as Ex. PW-1/B to Ex. PW-1/I, ledger accounts for the period 1 st April, 2016 to 22nd December, 2020 as Ex. PW-1/J to Ex. PW-1/M, bank statement from 01.04.2018 to 31.03.2019 as Ex. PW-1/N (colly), copy of bank statement from 16.05.2019 to 01.11.2019 as Ex. PW-1/O, copy of cheque bearing no. 895807 dated 14.08.2019 for Rs. 5,20,528/- as Ex. PW-1/P, copy of return memo dated 16.08.2019 as Ex. PW-1/Q, copy of return memo dated 01.11.2019 as Ex. PW-1/R, copy of legal notice dated 27.11.2019 as Ex. PW-1/S, postal receipt and courier receipts as Ex. PW-1/T (colly), copy of delivery reports as Ex. PW-1/U (colly), certificate u/s 65-B of Indian Evidence Act as Ex. PW-1/V and copy of GST registration certificate as Ex. PW-1/W. CS (Comm.) No. 894/2022 -11- During cross examination, this witness has admitted that he had filed a criminal complaint in respect of cheque bearing no. 895807 against the defendant which is Ex. PW-1/DX1. This witness denied the suggestion that plaintiff had supplied sub- standard material to the defendant which was not as per specifications of the purchase orders. This witness has stated that defendant had never complained to him regarding supply of defective material. This witness has stated that he had never lifted any material from the premises of the defendant. This witness has stated that he never visited the premises of the defendant to tally the account. He has voluntarily stated that defendant never called him. This witness has also stated that he had visited the office of defendant many times to demand the payment. This witness has admitted that he had placed on record cheque Ex. PW-1/P dated 14.08.2019. This witness has denied the suggestion that Ex. PW-1/P was given as security by the defendant to him and this cheque was not issued towards part payment of the alleged total outstanding of Rs. 21,08,190.50 paise. This witness has stated that Mr. Prateek Chaudhary, Director of the defendant had given cheque Ex. PW-1/P to him at his office.
7. On the other hand, defendant has examined Sh. Partho Pratim Chandra, Consultant of defendant company as DW-1. This witness has proved copy of Board Resolution as Ex. DW- 1/1.This witness is duly cross examined by Ld. Counsel for plaintiff.
During cross examination, this witness has admitted that he had not sent any communication to the plaintiff specifying the goods. He has voluntarily stated that he had sent the purchase CS (Comm.) No. 894/2022 -12- orders to the plaintiff. This witness has admitted that he had not sent any letter/ written communication informing the plaintiff that goods were not as per specifications. This witness has also admitted that he had not sent any letter asking the plaintiff to take back the goods. He has voluntarily stated that he had also intimated this fact on phone to the plaintiff. This witness has admitted that he had not sent any letter to the representative of the plaintiff to settle the accounts. This witness has also admitted that he has not placed on record any debit note.
8. I have heard Ld. Counsels for both the parties at length and perused the record carefully.
9. My issue-wise findings are as under:-
10. ISSUE NO. 1 - Whether there is no cause of action to file the present suit ? (OPD) The burden to prove this issue is upon the defendant. It is contended by Ld. Counsel for defendant that there is no cause of action in filing the present suit. As per the defendant, it had paid the amount of Rs. 50,000/- on 09.09.2019 as full and final payment and nothing remains due thereafter. To prove this issue, DW-1 appear in the court and filed affidavit in evidence on the lines of the written statement. In para no. 10 of affidavit in evidence, DW-1 has mentioned that after making the last payment of Rs. 50,000/- on 09.09.2019, nothing is due and payable by the defendant to the plaintiff. The DW-1 has not made it clear as to how no amount was due towards the defendant after making the payment of Rs. 50,000/-. The plaintiff CS (Comm.) No. 894/2022 -13- has filed the present suit on the basis of ledger account. Defendant has admitted that it had made payment of Rs. 5,68,35,212/- to the plaintiff and nothing is due. I have perused the cross examination of DW-1. It is the stand of defendant that defective goods were supplied by the plaintiff. DW-1 during cross examination in clear terms admitted that he had not sent any letter/ written communication informing the plaintiff that goods were not as per specification. Ld. Counsel for plaintiff has given specific suggestion to DW-1 that the goods were not defective and this is the reason, he had not sent any letter/ written communication to the plaintiff. I am of the view that there is cause of action to file the present suit. The defendant is not able to prove this issue and this issue is accordingly decided in favour of the plaintiff and against the defendant.
11. ISSUE NO. 2 - Whether the plaintiff is entitled for recovery of Rs. 33,07,952/- as claimed ? (OPP) The burden to prove this issue is upon the plaintiff.
12. 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;CS (Comm.) No. 894/2022 -14-
(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; (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.
13. 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.
CS (Comm.) No. 894/2022 -15-14. Secondly, now the question is 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:
[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.]
15. 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 shown in the plaint is of Rs. 33,07,952/- and CS (Comm.) No. 894/2022 -16- this court having the pecuniary jurisdiction to adjudicate the matter which is in dispute.
16. Now, I am dealing with the contentions of Ld. Counsel for defendant one by one.
17. It is contended by Ld. Counsel for defendant that Mr. Naresh Kumar Sah is not proprietor of the plaintiff company.
I have perused the record. Perusal of file reveals that all the documents of the plaintiff company are signed by PW-1 as Proprietor of M/s. N.K. Sales. Plaintiff has also placed on record registration certificate which is proved as Ex. PW-1/W. On this document, it is mentioned that Sh. Naresh Kumar Sah is proprietor of N.K. Sales Corporation. It is the contention of Ld. Counsel for defendant that document Ex. PW-1/W is computerized so this document cannot be taken into consideration. I am not inclined to accept this contention of Ld. Counsel for defendant as plaintiff had down loaded this document from the Government site. Moreover, defendant has not placed on record any document to show that Mr. Naresh Kumar Sah is not proprietor of M/s. N.K. Sales Corporation. I am of the view that this contention of Ld. Counsel for defendant carries no force.
18. The next contention raised by Ld. Counsel for defendant is that the present suit is barred u/s 34 of Indian Evidence Act. As per the defendant, the plaintiff in order to prove his case has placed on record various documents including statement of account and eight invoices/ bills. As per the defendant, plaintiff CS (Comm.) No. 894/2022 -17- has to place on record all the invoices. It is contended by Ld. Counsel for defendant that as per Section 34 of the Evidence Act, mere entries in the statement of account are not sufficient to fasten any liability and the entries in the statement of account have to be proved by means of the documents/ vouchers of the transactions. As per the defendant, the entries pertaining to the period 28.11.2016 to 25.04.2018 have not been substantiated by means of any documents showing as to how this amount is due.
Section 34 of Indian Evidence Act reads as under:-
"34. Entries in the books of accounts, including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability".
In the present case, defendant has admitted the documents of the plaintiff. The defendant has also admitted all the invoices annexed with the plaint in the affidavit regarding admission/denial of documents. It is contention of Ld. Counsel for plaintiff that defendant had made payment of Rs. 2,68,35,212/- and it had to make the payment of balance amount i.e. suit amount with interest. The plaintiff has proved on record the invoices. The plaintiff has also filed statement of account. It is contended by Ld. Counsel for defendant that statement of accounts Ex. PW-1/J to Ex. PW-1/M are false and fabricated. In the statement of account the plaintiff has shown all the transactions made between plaintiff and the defendant. As the plaintiff has filed copies of the invoices and the defendant has no where denied these invoices. I am of the view that plaintiff is not CS (Comm.) No. 894/2022 -18- required to file copies of all the invoices when admittedly defendant had made payment of Rs. 2,68,35,212/-. Thus, this contention of Ld. Counsel for defendant carries no force.
19. The next contention raised by Ld. Counsel for defendant is that the present suit is barred under Order IV CPC as no duplicate of plaint has been placed on record.
I have perused the record. I am of the view that if the plaintiff has not placed on record any duplicate copy alongwith the plaint then it cannot be said that suit on the basis of invoices and ledger account is not maintainable. Thus, this contention of Ld. Counsel for defendant carries no force.
20. It is contended by ld. Counsel for defendant that the present suit is barred by limitation.
As per the plaintiff the last payment of Rs. 50,000/- was made by the defendant on 09.09.2019 and the present suit was filed on 14.11.2022. It is submitted by Ld. Counsel for plaintiff that the Hon'ble Supreme Court in the matter In re Cognizance for Extension of Limitation, SMW© No. 3/2020, extended the statutory limitation and period from 15.03.2020 to 28.02.2022 was exempted. I am of the view that suit filed by the plaintiff is within limitation.
21. It is contended by Ld. Counsel for defendant that no suggestion was given to DW-1 and it is deemed admission of uncrossed part of evidence of DW-1.
As, I have observed in Issue No. 1 that plaintiff has put suggestion to the defendant in cross examination. Defendant has CS (Comm.) No. 894/2022 -19- admitted that he has not sent any letter to the plaintiff regarding supply of defective material. This contention of Ld. Counsel for defendant carries no force.
22. It is also contended by Ld. Counsel for defendant that plaintiff has to prove its case. I am of the view that there is no doubt on this submission of Ld. Counsel for defendant. In the present case, it is to be seen whether plaintiff has proved its case or not. In the present case, PW-1 has proved MCA data of defendant company as Ex. PW-1/A, copy of invoices dated 15.05.2018 to 30.07.2019 as Ex. PW-1/B to Ex. PW-1/I, ledger accounts for the period 1st April, 2016 to 22nd December, 2020 as Ex. PW-1/J to Ex. PW-1/M, bank statement from 01.04.2018 to 31.03.2019 as Ex. PW-1/N (colly), copy of bank statement from 16.05.2019 to 01.11.2019 as Ex. PW-1/O, copy of cheque bearing no. 895807 dated 14.08.2019 for Rs. 5,20,528/- as Ex. PW-1/P, copy of return memo dated 16.08.2019 as Ex. PW-1/Q, copy of return memo dated 01.11.2019 as Ex. PW-1/R, copy of legal notice dated 27.11.2019 as Ex. PW-1/S, postal receipt and courier receipts as Ex. PW-1/T (colly), copy of delivery reports as Ex. PW-1/U (colly), certificate u/s 65-B of Indian Evidence Act as Ex. P/w-1/V and copy of GST registration certificate as Ex. PW-1/W. Nothing fruitful was extracted during the cross examination of PW-1. The defendant is not able to shatter the testimony of PW-1 in any manner. PW-1 has stated that he never visited the premises of the defendant to tally the account. He has voluntarily stated that defendant never called him. This witness has also stated that he had visited the office of defendant many times to demand the payment. This witness has admitted CS (Comm.) No. 894/2022 -20- that he had placed on record cheque Ex. PW-1/P dated 14.08.2019. This witness has denied the suggestion that Ex. PW-1/P was given as security by the defendant to him and this cheque was not issued towards part payments of the alleged total outstanding of Rs. 21,08,190.50 paise. This witness has stated that Mr. Prateek Chaudhary, Director of the defendant had given cheque Ex. PW-1/P to him at his office.
23. It is the stand of Ld. Counsel for defendant that inferior quality goods were supplied to the defendant and due to which many customers of the defendant complained to him and returned the goods supplied to the defendant. It is also contended that some customers of defendant even stopped doing business with the defendant.
The defendant has not made it clear that vide invoices the inferior quality goods were supplied by the plaintiff to the defendant. DW-1 during cross examination in clear terms admitted that he had not sent any communication to the plaintiff specifying the goods which were defective. He has voluntarily stated that he had sent the purchase order to the plaintiff. This witness has admitted that he had not filed purchase order alongwith his written statement. This witness has stated that it is correct that he had not sent any letter/ written communication informing the plaintiff that goods were not as per specifications. This witness has admitted that he had not sent any letter asking the plaintiff to take back the goods. This witness was given suggestion that the goods were not defective and this is the reason, he had not sent any letter/ written communication to the plaintiff. This witness was also given suggestion that he had not CS (Comm.) No. 894/2022 -21- suffered any loss in respect of the goods supplied by the plaintiff and he had concocted a false defense only to escape from liability. This witness has admitted that he had not sent any letter to the representative of the plaintiff to settle the accounts. This witness has stated that he had also issued a debit note in respect of defective goods supplied by the plaintiff but this statement of plaintiff cannot be relied upon as witness has admitted that he has not placed on record any debit note. From the documents placed on record, it is proved that plaintiff had supplied goods amounting to Rs. 2,89,43,402.50 paise and defendant had made payment of Rs. 2,68,35,212/- from 22.12.2016 to 09.09.2019 and there was outstanding of Rs. 21.08.190.50 paise as on 01.11.2019. Moreover, in the present case, the defendant in para no. 10(a) of the written statement has admitted that in the year, 2016 defendant started purchasing goods from the plaintiff on credit basis. The defendant in para no. 4 of reply on merits has mentioned that plaintiff has raised upon the defendant multiple invoices. Defendant has also mentioned that filing of the details of 85 bills is a matter of record. Defendant in para no. 6 of the written statement has admitted that defendant company had made a total payment of Rs. 2,68,35,212/- from 22.12.2016 till 09.09.2019 and the last payment of Rs. 50,000/- was made on 09.09.2019. Defendant in para no. 7 of the written statement has admitted that cheque bearing no. 895807 dated 14.08.2019 for a sum of Rs. 5,20,528/- was given as security. Defendant has also admitted that vide legal notice dated 27.11.2019, the plaintiff demanded the payment of outstanding dues of Rs. 21,08,190.50 paise. Even the defendant has admitted to receive the legal notice but no reply has been sent by the defendant.
CS (Comm.) No. 894/2022 -22-24. It is the main contention of Ld. Counsel for defendant that amount of Rs. 21,08,190.50 paise was paid by the defendant. The defendant has not adduced any evidence nor the defendant has filed its ledger account to show that it had made payment of Rs. 21,08,190.50 paise to the plaintiff. Defendant has not denied that a sum of Rs. 21,08,190.50 paise was not due towards it. The burden to prove this fact was upon the defendant. Defendant has failed to discharge its burden. I am of the view that plaintiff is entitled to recover Rs. 21,08,190.50 paise from the defendant. Accordingly, plaintiff is able to prove issue no. 2 and this issue is decided in fvaour of the plaintiff and against the defendant.
25. ISSUE NO. 3- Whether the plaintiff is entitled for interest. If yes at what rate? (OPP) Now the question arise as to what rate of interest plaintiff is entitled on the amount of Rs. 21,08,190.50 paise. Counsel for plaintiff submits that plaintiff is entitled to interest @ 18% per annum. 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 Pharases 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 CS (Comm.) No. 894/2022 -23- 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 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 very excessive and interest of justice will be met if the plaintiff is granted interest @ 12% per annum which is usually prevailing market rate of interest.
26. RELIEF:
CS (Comm.) No. 894/2022 -24-In view of my above discussions, the suit of the plaintiff is decreed and a decree of Rs. 21,08,190.50 paise is passed in favour of the plaintiff and against the defendant. Plaintiff is also entitled to interest @ 12% per annum on the amount of Rs. 21,08,19050 paise from 01.11.2019 till realization. Plaintiff is also entitled to the costs 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 24.02.24. District Judge, Comm. Court-06 West, Tis Hazari Courts Extension Block, Delhi/24.02.2024 CS (Comm.) No. 894/2022 -25-