Delhi District Court
Smt. Raj Kiran Soni vs Mr. Mahender Aggarwal on 12 March, 2020
IN THE COURT OF SHRI JITENDRA SINGH
ADDITIONAL DISTRICT JUDGE 06: CENTRAL DISTRICT, TIS
HAZARI COURTS : DELHI
CS DJ No. 18434/2016
IN THE MATTER OF:
Smt. Raj Kiran Soni,
W/o Sh. Surender Pal Soni,
Prop. of M/s. Soni Enterprises,
(Through its Attorney)
Ms. Jasmeet Kaur
224 First Floor, Cycle Market,
Jhandewalan Extn.,
New Delhi110055.
....PLAINTIFF
VERSUS
Mr. Mahender Aggarwal
Proprietor of Shree Balaji Borewells
A1 Panchwati, Airport Road,
Bhopal462032
Madhaya Pradesh
....DEFENDANT
Other Details:
Date of Institution : 16.09.2015
Date of Reserving Judgment : 12.03.2020
Date of Judgment : 12.03.2020
CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 1/11
SUIT FOR RECOVERY OF RS. 19,85,600/
JUDGMENT
1. This is a suit for recovery of Rs. 19,85,600/ alongwith interest @ 18% per annum from the date of default till the date of realization filed by the plaintiff against the defendant.
Brief Facts:
2. It is averred in the plaint that the plaintiff is the proprietor of M/s. Soni Enterprises engaged in the business of sale of spares parts of heavy machineries. The present suit has been filed through the attorney Ms. Jasmeet Kaur, who is stated to be handling the day to day affairs of the proprietorship concern. It is further averred that defendant is the proprietor of Shri Balaji Borewells and requires machinery parts for running of his equipments and machineries.
3. The defendant approached the plaintiff office at Delhi and on the assurance of defendant plaintiff started to supply the spare parts. It was agreed that the payments shall be made either by cheque or cash in the Bank Account/NEFT by the defendant. The goods were supplied CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 2/11 against the valid invoices and the goods were supplied through road transport on road receipts and the same were debited to the ledger account maintained in regular course of business. It is further averred that as the sale was interstate sale therefore, it was made against the valid "C Forms". It is further averred that the last payment of Rs. 50,000/ was made on 24.09.2013 and 09.10.2013 as reflected in the bank statement of A/C no. 912020032932962 in the Axis Bank.
4. It is further averred that the General Manager Mr. Ramesh Sharma visited the office of defendant and a discount of 4.5% was given on the outstanding dues. However defendant failed to make the payment. subsequently, Legal Notice dated 24.06.2015 for the recovery of Rs. 19,85,600/ was sent to the defendant. That all the transaction were conducted from the office of the plaintiff at Jhandwalan, New Delhi. The defendant use to place the orders and all the goods were supplied from the office of the defendant in Delhi and all the invoice were raised in the office of the plaintiff in Delhi, the remittances made by the plaintiff towards the balance standing in the books of the plaintiff. Hence, the present suit.
CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 3/11 Written Statement:
5. Written Statement(WS) has been filed on behalf of the defendant. It is stated in the Written Statement that though the defendant had some earlier transaction with the plaintiff, however there is no outstanding amount to be paid to the plaintiff. It is further stated that the documents relied by the plaintiff are false and fabricated. The plaintiff has not supplied any goods to the defendant therefore the suit of the plaintiff is liable to be dismissed.
Replication:
6. Detailed replication has been filed for or on behalf of the plaintiff, wherein denying all the allegations as alleged in the Written Statement(WS) and reiterating all the facts as stated in the plaint. Framing of issues:
7. On the basis of pleadings following issues were framed on 22.09.2016, by my Ld. Predecessor:
(i) Whether the plaintiff is entitled to a decree of Rs. 19,85,600/ ? (OPP).
(ii) Whether the plaintiff is entitled to interest, if so, at what rate? CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 4/11 (OPP)
(iii) Whether the plaintiff has got no cause of action for filing the present suit ? (OPD).
(iv) Whether there is no privity of contract between the parties? (OPD).
(v) Whether this court has got no territorial jurisdiction to try the present suit? (OPD).
(v) Relief.
Evidence:
8. To establish his case, plaintiff has examined only three witnesses i.e. Ms. Jasmeet Kaur as PW1, Sh. Jujhar Singh as PW2 and Sh. Ramesh Sharma as PW3. PW1 has proved on record i.e. (a) original copy of Power of Attorney, which is Ex. PW1/1, (b) original copies of bills/road receipts, which are Ex. PW1/2(colly), (c) original Central Sales Tax of the bill, which are Ex. PW1/3(colly), (d) original copies of regular ledger, which are Ex. PW1/4(colly), original copy of bank statement, which is Ex. PW1/5, transactions between plaintiff and defendant like placing the order, performa invoices, exchange of the ledger/statement of account, mail transactions(98 pages), demand of CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 5/11 outstanding, visit of Mr. Ramesh Sharma employee of the plaintiff at Bhopal for demand of outstanding and proof of telephonic conversation, its CD, as per list of documents dated 02.05.2016, alongwith affidavit under Section 65B of Indian Evidence Act, dated 11.09.2015 and 07.05.2016, which are Ex. PW1/6, Credit Note, which is Ex. PW1/7, original copy of legal notice, which is Ex. PW1/8, two postal receipts, which are Ex. PW1/9 and service track reports, which are Ex. PW1/10 and Ex. PW1/11. Thereafter, PE was closed. On behalf of the defendant, no witness has been examined and DE was closed, vide order dated 21.01.2019.
9. I have heard counsel for both the parties and record perused. My issue wise findings are as follows: Issue wise findings: Issue no. 1 & 2.
10. Being interconnected, issues no. 1, and 2 are being taken up together for the sake of brevity. The onus of both the issues lies on the plaintiff. To discharge the onus, the plaintiff is required to prove firstly, that the plaintiff supplied the goods to the defendant. Secondly, the CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 6/11 plaintiff is required to prove that a sum of Rs. 19,85,600/ is a liability to be paid by the defendant.
11. The plaintiff has examined three witnesses. PW1(Jasmeet Kaur) has brought on record the road receipts Ex. PW1/2 (colly) for proving that the goods were supplied to the defendant.
12. The perusal of Ex. PW1/2 (colly) reveals that number of transaction has taken place between the plaintiff & defendant company for a period of time. The Corresponding Sales Tax (C Form) Ex. PW1/3 (colly) are issued from time to time. Though the 'C' Forms are not of the relevant period, however they are sufficient to discard the contention of defendant that no transaction took place between the plaintiff and defendant. The dispatching of goods against the invoices seems to be debited to the ledger account maintained by the plaintiff in regular course of business, which are proved on record as Ex. PW1/2(colly). The plaintiff has also brought on record the bank statement showing that the last payment of Rs. 50,000/each on 24.09.2013 and 09.10.2013 was credit in the account. The plaintiff has alleged that in anticipation of outstanding being cleared, the discount of 4.5% was offered by the plaintiff, the credit CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 7/11 note has been proved as Ex.PW1/7. Sh. Jujjhar Singh, who has been examined as PW2 has brought on record CD containing the telephonic conversation of him with Sh. Harbhajan Aggarwal, who is the defendant.
13. Sh. Ramesh Sharma has been examined as PW3, who has been working as the General Manager for the plaintiff. PW3 has also relied on the documents as proved by PW1. During the cross examination it has been brought out that the PW3 himself was issuing invoices for dealing of goods to the defendant. The relevant extract is reproduced below for ready reference: "...I am working with the plaintiff's firm for the last 1819 years. The defendant and the plaintiff have been dealing since the year 20082009. It is correct that I have been issuing invoices for delivery of goods to the defendant....".
14. Further, PW3 has clarified that the bus charges shown on the invoices were the charges paid to the delivery of the goods at ISBT. Thereafter the goods were transported to defendant. The relevant extract of cross examination is reproduced below for ready reference: "...At this stage witness has been shown notice dated 23.03.2013(part of Ex. PW1/2).
The bus charges demanded vide invoice dated 23.03.2013 are the charges for carriage of goods from the office to ISBT, Sarai Kalekhan, CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 8/11 Delhi...".
15. The defence taken by the defendant is that the documents relied upon the plaintiff are forged and fabricated. Close scrutiny of Written Statement reveals that defendant has taken contradictory pleas. In para no. 4 & 7 of Written Statement(WS) on merits, defendant has taken the defence that no transaction ever took place with the plaintiff, however in para no. 6 and 7 of preliminary objections the defendant has taken the defence that earlier defendant had transaction with the plaintiff.
16. The defendant has cross examined all the plaintiff witnesses at length. It was for the defendant to prove that the documents relied by the plaintiff were false and fabricated. Surprisingly the defendant has not led any evidence to prove his contention. The defendant has contended that PW1 has appeared /deposed before the court in the capacity of Power of Attorney Holder, therefore, her testimony cannot be considered. The contention of defendant is not maintainable as PW1 has categorically stated in her evidence by way of affidavit, that she is personally aware about the day to day affairs of the proprietorship concern. The relevant extract of para '3' is reproduced herein below for ready reference: "....that Ms. Jasmeet Kaur (Power of Attorney Holder) has been handling all the day to day CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 9/11 affairs of the proprietorship concern and is well conversant with the facts and circumstances based on the records and maintained in the regular course of business and based on her personal knowledge and had filed this court based upon her personal knowledge as well as thus she is competent to swear this evidence...".
17. During the cross examination, PW1 has stated she is associated with the proprietorship concern from 2006. In view of the above discussion, this court has no hesitant to hold that plaintiff has proved his case to the extent of preponderance of probabilities. The plaintiff is entitled to the recovery of Rs. 19,85,600/. The plaintiff has claimed interest @ 18 per annum. The rate of interest is exorbitant and unjustified. It will be reasonable to award pendentelite and future interest @ 6 % per annum. Hence, these issues are decided in favour of the plaintiff and against the defendant.
Issue no. 3,4 and 5:
18. Being interconnected, issues no. 3,4 and 5 are being taken up together for the sake of brevity. As per the Civil Procedure Code, the plaintiff can file the suit where the cause of action wholly or in part arises or the place where defendant resides, or carries on business, or personally works for gain. In the instant case, the plaintiff has alleged that CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 10/11 defendant approach the plaintiff's office in Delhi for the purpose of supply of goods from plaintiff. It means that the offer for the purchase of goods has been from the side of the defendant and the acceptance has been from the side of plaintiff. As the contract concluded at Delhi, therefore this court has jurisdiction to try the present case. Moreover, the onus to prove these issues was on the defendant, however no evidence has been led by the defendant. Therefore, these issues are decided against the defendant and in favour of the plaintiff.
Relief:
19. In view of the issues wise findings the suit of the plaintiff is decreed for a sum of Rs. 19,85,600/ alongwith pendentelite and future interest at the rate of 6 % till the realization of the decreed amount. Cost is also awarded in favour of the Plaintiff. Decree Sheet be prepared accordingly. File be consigned to Record Room as per rules after compliance of necessary legal formalities. Digitally signed by JITENDRA
Announced in open Court JITENDRA SINGH
Dated: 12.03.2020 SINGH Date:
2020.03.13
(JITENDRA SINGH)
15:26:53 +0530
Addl. District Judge06 (Central)
Tis Hazari Courts, Delhi
CS No. 18434/16 Soni Enterprises Vs. Mahender Aggarwal Page No. 11/11