Delhi District Court
Lafarge Aggregates & Concrete India ... vs P. K. Jain & Anr. on 4 November, 2016
Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
IN THE COURT OF CIVIL JUDGE-02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No.82752/16
Lafarge Aggregates & Concrete India Private Ltd.
Having its registered office at
1004, "B" Wing, 10th Floor,
Crescenzo, "G" Block, Behind MCA,
Bandra Kurla Complex,
Bandra (E), Mumbai - 400051 ....Plaintif
Versus
Sanmarg Infratech Private Ltd.
(Earlier known as "Mega Growth Housing Private Limited")
53-B, Masih Garh, Church Compound,
Sukhdev Vihar,
New Delhi - 110027 ....Defendants
Date of Institution : 07.07.2012
Date of Reserving Judgment : 04.11.2016
Date of Decision : 04.11.2016
Final Decision : Decreed
JUDGMENT
(Suit for Recovery of Rs.2,21,100/- alongwith pendente lite and future interest)
1. This is a suit for Rs.2,21,100/- alongwith pendente lite and future interest against the defendant.
CS No. 82752/16 Page 1 of 9Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
2. Briefly stated, case of the plaintiff is that the plaintiff is company duly incorporated under the provisions of the Indian Companies Act, 1956 and engaged in business of manufacturing and sale of Ready Mix Concrete (RMC). That defendant is engaged in business of constructions. That in May 2009, defendant company approached plaintiff for procurement of RMC. That defendant company issued purchase order dated 18.05.2009 for supply of RMC and the same was supplied to defendant company on various dates through various Bills/Invoices and the same were duly received by the defendant company through various delivery challans totaling an amount of Rs.4,58,950/-. That defendant company only made a part payment of Rs.2,37,850/- against the said invoices and thereafter failed to pay outstanding balance amount of Rs.2,21,100/- till date. That plaintiff company made several written as well as verbal requests to the defendant company to make the payment but to no avail. That plaintiff was constrained to issue letter dated 13.06.2011 to defendant company but all in vain. Hence, the present suit is filed by the plaintiff seeking following reliefs:-
(A) Decree of recovery for a sum of Rs.2,21,100/- in favour of plaintif and against the defendant company.
(B) Decree in favour of plaintif and against the defendant company granting pendente lite and future interest @24% per annum till the date of payment.
3. Upon service of the summons, defendant appeared and filed its written statement denying the allegations as contained in the plaint. That this court has no territorial jurisdiction to try the present suit as no cause of action arises within the jurisdiction of this court. That the suit CS No. 82752/16 Page 2 of 9 Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
has not been filed and verified by a competent person. That the goods supplied by the plaintiff company was of inferior quality. That the goods were supplied with much delay and thus could not be used. That defendant has no liability towards the plaintiff on account of the defective goods supplied. Thus, on the above said grounds the defendant prayed that the suit of the plaintiff be dismissed.
4. Plaintiff filed replication to the WS of the defendant denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 15.11.2014:-
1. Whether the plaintiff is entitled to a decree of recovery for a sum of Rs.2,21,100/- as prayed ? OPP
2. Whether the plaintiff is entitled to any interest? If so at what rate and for what period? OPP
3. Whether this Court has territorial jurisdiction to entertain the present suit? OPD
4. Relief, if any.
6. In order to prove its case, the plaintiff examined Mr. Ritu Raj Singh as PW-1 who tendered his evidence by way of an affidavit Ex.PW-1/A. He relied upon documents Mark A to Mark C, Ex.PW-1/4 to Ex.PW-1/6 and thereafter, plaintiff closed its evidence.
Defendant on the other hand, examined Mr. Nitin Jain as DW-1 who tendered his evidence by way of an affidavit Ex.DW-1/A. He relied upon documents Ex.DW-1/A to Ex.DW-H, Ex.DW-1/J to Ex.DW-1/M, Mark A, Ex.DW-1/O, Mark B, Mark C & Mark D and thereafter, CS No. 82752/16 Page 3 of 9 Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
defendant closed its evidence.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issue-wise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a decree of recovery for a sum of Rs.2,21,100/- as prayed ? OPP
8. The onus to prove this issue was upon the plaintiff. Ld. Counsel for plaintiff argued that defendant has admitted the invoices raised by the plaintiff and the goods supplied to the defendant in its WS and in its evidence. It is further argued that defendant has failed to prove his defence qua the plea of defective goods and the delay in the delivery as defendant never objected to the goods supplied and even consumed the same admittedly. It is further argued that plaintiff is entitled to the outstanding balance amount on account of the goods supplied accordingly as reflected in the ledger account. In support of his arguments, Ld. Counsel relied upon following judgments:
(a) T. L. Verma & Co. Ltd. Vs. Gammon India Ltd. 2013 SCC Online Del 4402
(b) Indian Macro Electronics (P) Ltd. Vs. Chandra Industries & Ors. Manu/DE/1885/2015
(c) M/s Upvan Steel Tubes Pvt. Ltd. & Anr. Vs. M/s Tube Investments of India Ltd. (2014) 10 SCC 663
(d) Joti Prasad Bala Prasad Vs. A. C. T. Developers (P) Ltd.
1989 SCC OnLine Del 234
(d) M/s Lohmann Rusher Gmbh Vs. M/s Medisphere
Marketing Pvt. Ltd. 2005 (80) DRJ 9
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Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
On the other hand, Ld. Counsel for defendant raised two main contentions. Firstly that the present suit has not been filed by a competent person. Secondly, the goods supplied by the plaintiff were not in accordance with the specification and were delivered with delay causing damage to the defendant which has to purchase material from some third person in order to complete its job work. It is further argued that plaintiff witness himself admitted in his cross examination that the wet concrete mix becomes hard and non-usable from five hours to seven days and it has come on record that the goods have been delivered with delay which got solidified and could not be used by the defendant. Hence, defendant has no liability towards the plaintiff as claimed for.
9. It is important to note here that the purchase order dated 18.05.2009 Mark C and the invoices Ex.PW-1/4 Colly raised by the plaintiff qua the goods supplied to the defendant have not been disputed by the defendant. Although, defendant has objected to the mode of proof but once the goods supplied against the same have been admitted by the defendant in its WS, the same need not be proved by the plaintiff. In view of the invoices raised and the goods supplied by the plaintiff to the defendant, the onus upon the plaintiff to prove its case stands discharged. Defendant has raised the contention that the goods were defective and were not supplied on time, hence, the onus to prove the same was upon defendant and whether the defendant was not liable to pay the outstanding amount to the plaintiff shifted upon him.
It is pertinent to mention that not even a single material contradiction or infirmity has occurred in the testimony of PW-1 during his cross examination. Plaintiff has relied upon a board of resolution CS No. 82752/16 Page 5 of 9 Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
exhibited as Mark B which confers the authorization upon the PW-1 to prosecute the case on behalf of the plaintiff company. The earlier AR of the plaintiff also filed on record his power of attorney to show his competency. Hence, the contention of the defendant that PW-1 is not the competent person to file and pursue the present suit is without any merits.
10. Now coming to the fact whether the goods were defective or they were delivered with delay was to be proved by defendant itself. No protest or noting has been made by the defendant on the delivery challans by virtue of which the goods were delivered by the plaintiff. Same was admitted by DW-1 during his cross examination by the plaintiff. It is also not disputed that no written communication qua the defective goods or the delayed delivery was given to the plaintiff immediately or within reasonable time of its delivery. The only letter Ex.DW-1/M dated 30.07.2009 is placed on record by the defendant which has not been proved to have been delivered to the plaintiff as no original courier receipts have been filed on record nor the tracking report pertaining to the delivery of the same is filed on record. Moreover, the same pertains to the end of month of August 2009 whereas the goods were admittedly delivered on 22.06.2009 and 23.06.2009 respectively. It has been the contention of the defendant that the information was given telephonically but in view of the regular correspondence in writing between the parties the plea of informing the plaintiff on telephone could not be proved by the defendant. DW-1 during his cross examination even could not tell the exact date when the information was given to the plaintiff. DW-1 during his cross examination admitted that he was not present at the site when the material was received and all the information on the basis of which he CS No. 82752/16 Page 6 of 9 Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
deposed before the court was obtained from one supervisor whose name has not been mentioned during the cross examination. Hence, nothing on record suggest that plaintiff was informed about any discrepancy in delivery of the goods.
11. It will not be out of place to mention that the defendant did not return the goods and consumed the same. Same has been admitted by the DW-1 in his cross examination where he states that the material was accepted as the process of casting was going on. It is further admitted by DW-1 during his cross examination that the entire goods as per the purchase order were received and none of the material was returned to the plaintiff. Rest of the information deposed by DW-1 is stated to be sourced from his supervisor whereas the supervisor has not been examined as a witness who was material witness and could establish the defence of the defendant.
12. It has been the argument of Ld. Counsel for defendant that defendant had to purchase material from some other source to complete the casting work as the material supplied by the plaintiff was not upto mark. It is again pertinent to note here that defendant has not placed on record a single document to show that it purchased the same material from some third person to complete the casting work. On the contrary, DW-1 admitted in his cross examination that it accepted the material as the casting process was going on which indicate that the material supplied by the plaintiff was used for completion of the casting process. No expert witness has been examined by the defendant to show that the material supplied by plaintiff rendered non-usable due to delay in delivery. Documents generated from the internet i.e. Ex.DW- 1/Q and Ex.DW-1/R have been relied upon by the defendant but the CS No. 82752/16 Page 7 of 9 Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
same have not been proved in accordance with law as no certificate u/s 65-B of Evidence Act was filed. Even it is a general guideline which does not confirms or proves the defectiveness of the material supplied by the plaintiff to the defendant. Hence, none of the plea taken by the defendant could be substantiated on record.
13. Section 41 & 42 of The Sales of Goods Act are the relevant provisions which says that if the defendant does not reject the goods within reasonable time or does not point out the same to the plaintiff then the defendant would be deemed to have accepted the goods. Same was also held in the judgment M/s Upvan Steel Tubes Pvt. Ltd. & Anr. (Supra) & M/s Lohmann Rusher Gmbh (Supra) as relied upon by the plaintiff. Same is the case herein, hence, defendant cannot take the defence at this stage when not taken the steps at the said relevant point of time.
14. In view of the evidence led and the discussion above, this court finds that plaintiff has been able to discharge the onus lying upon its shoulders and the defendant has failed to prove his plea of defence. Accordingly, this issue stands decided in favour of plaintiff and against the defendant.
ISSUE NO.2 Whether the plaintiff is entitled to any interest? If so at what rate and for what period? OPP
15. The onus to prove this issue was upon the plaintiff. The plaintiff has claimed interest @24% per annum which in my view is exorbitant and in view of the facts and circumstances of the present case interest @12% per annum seems to be appropriate and justified. This issue CS No. 82752/16 Page 8 of 9 Lafarge Aggregates & Concrete India Private Ltd. Vs P. K. Jain & Anr.
stands decided in favour of plaintiff and against the defendant accordingly.
ISSUE NO.3 Whether this Court has territorial jurisdiction to entertain the present suit? OPD
16. The onus to prove this issue was upon the defendant. Vide order dated 01.06.2015, this issue being treated as preliminary issue was decided in favour of plaintiff and against the defendant. Hence, no fresh finding is required.
Relief:
17. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby decreed and a decree for recovery of Rs.2,21,100/- along with pendente lite and future interest @12% per annum from the date of institution of the suit till its realization is passed in favour of the plaintiff and against the defendant. Costs of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
18. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 04.11.2016 CJ-02 (South)/Saket Courts
New Delhi/04.11.2016
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