Delhi District Court
M/S Ahuja Pastry Corner vs M/S Jkm Enterprises on 12 September, 2014
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
RCA No. 88/14
M/s Ahuja Pastry Corner
Through its proprietor
Sh. Inder Mohan Ahuja
M1, Sriniwaspuri, New Delhi 110065
.......... Appellant
Versus
M/s JKM Enterprises
Through its proprietor
Sh. Amit Arora
L68, J.J. Colony,
Sriniwaspuri, New Delhi 110065
......... Respondent
JUDGMENT
1. This is an appeal against the impugned judgment and decree dated 07.06.2014 passed by Ld. Senior Civil Judge, South East, Saket, New Delhi by which suit of respondent was decreed.
2. Brief facts as borne out from the Trial Court record are that the respondent had field a suit for recovery of Rs. 94,242/ against the appellant. The case of the respondent was that it is proprietorship RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 1 of 8 firm and was running a distributorship for Parle Agro Pvt. Ltd. It had supplied many parley products to the appellant between October, 2011 to March, 2012 against six invoices on different dates totaling to Rs. 94,242/. The appellant failed to make the payment despite service of legal notice. Hence, the respondent filed the suit for recovery of principal amount of Rs. 94,242/ along with interest @ 18% p.a. from 01.04.2012 to 31.08.2013 and cost of the suit including Rs. 11,000/ as cost of legal notice.
3. The appellant filed the written statement wherein he denied that any transactions with the respondent. He contended that he never purchased the goods from the appellant nor gave any supply order and has prayed for dismissal of the suit.
4. The Ld. Trial Court vide impugned judgment dated 07.06.2014 decreed the suit of the respondent for a sum of Rs. 94,242/ along with interest @ 12% per annum from 19.03.2012 till the filing of the suit and pendente lite and future interest @ 12% p.a. along with cost of the suit including cost of Rs. 5500/ for legal notice.
5. Aggrieved by the judgment and decree dated 07.06.2014, the appellant has preferred the present appeal. It is contended that Trial Court has failed to appreciate that suit was filed against a non juristic proprietorship firm and not on the proprietor of the firm. The RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 2 of 8 Trial Court did not consider the fact that no transaction took place between the parties and the estimate relied upon by the respondent (plaintiff)) were false and fabricated as many of the documents are only the plain papers and addressed to none and even the printed estimates are not addressed to anyone. The Trial Court has further made an error by decreeing the suit of the respondent for principal amount of Rs. 94,242/ along with interest @ 12% p.a. and cost of the suit along with Rs. 5500/ towards legal notice expenses in the absence of any documentary proof.
6. I have heard the Ld. Counsel for parties and perused the record. Trial Court record was also summoned and I have also perused the same.
7. The grievance of the appellant that decree has been passed against a non juristic proprietorship concern is based on the plea that he was not impleaded as defendant in the suit and only his firm was impleaded as defendant and therefore decree is not executable against him. I do not find any force in this contention of the appellant. Admittedly, the appellant is the proprietor of M/s Ahuja Pastry Corner, a proprietorship concern which was impleaded as defendant in the suit against which the impugned judgment was passed. Under the eyes of law, a proprietorship firm has no legal separate entity from its proprietor. Therefore, there is no infirmity in RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 3 of 8 impleading the proprietorship firm M/s Ahuja Pastry Corner of which admittedly the appellant is the proprietor and hence the impugned judgment is also executable against the appellant being proprietor of M/s Ahuja Pastry Corner.
8. The appellant has denied the transaction with the respondent and has contended that he has not received any goods from the respondent and in the absence of any transaction, he was not liable to make any payment to the respondent.
9. On the other hand, in support of his case, the respondent has examined himself as PW1 and has relied upon the documents Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39 and Ex. PW1/311 which are the estimates given by the appellant to the respondent against which the respondent raised the invoices Ex. PW1/32, Ex. PW1/34, Ex. PW1/36, Ex PW1/38, Ex. PW1/310.
10. In his crossexamination PW1 though admitted that documents Ex. PW1/32, Ex. PW1/34, Ex. PW1/36, Ex PW1/38, Ex. PW1/310 and Ex. PW1/312 do not bear the signature of the recipient, but he voluntarily stated that these bills were raised on the basis of document Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39 and Ex. PW1/311 some of which have the signatures. He categorically stated that Ex. PW1/3, Ex. PW1/31, Ex. RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 4 of 8 PW1/35, Ex. PW1/37, Ex. PW1/39 bear the signature of the defendant. He further stated that Ex. PW1/311 bear the signature of nephew of defendant who works at the shop of the defendant. Not a single suggestion was given to PW1 that the documents Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39 do not bear the signature of defendant. The respondent raised the bills Ex. PW1/32, Ex. PW1/34, Ex. PW1/36, Ex PW1/38, Ex. PW1/310 and Ex. PW1/312 which are corresponding to the aforesaid estimates Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39.
11. The appellant who has examined himself as DW1 in his crossexamination has denied that the document Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39, Ex. PW1/311 are in his handwriting or bear his signatures. He stated that he does not know how the documents Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39, Ex, PW3/11 reached in the possession of the plaintiff. He categorically admitted that these exhibited documents belong to him. He stated that these exhibited documents having mention of "estimates" were misplaced by him., but he categorically stated that he did not lodge any complaint with the police regarding misplacement of these documents with any concerned authority.
12. As such, the appellant has admitted that the estimates Ex. PW1/3, Ex. PW1/31, Ex. PW1/35, Ex. PW1/37, Ex. PW1/39, RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 5 of 8 Ex. PW1/311 belonged to him. Therefore, the onus was upon the appellant to show that how these estimates reached to the respondent if same were not placed by him to the respondent. But, no plausible explanation has come forward from the appellant that how these estimates reached in the possession of the respondent and the plea taken by the appellant that these estimates were misplaced by him does not inspire any confidence.
13. It is also to be noted that though the appellant has denied the transaction with the respondent, but in the written statement he took a plea that present suit has been filed by the respondent to avoid the liability to pay Rs. 10 lacs which the respondent was liable to pay to the appellant. In his crossexamination, the appellant stated that he knows Amit Arora, the plaintiff since birth who is running the firm M/s JKM Enterprises and was the distributor of Frooti products. He further stated that there had never been any business dealings/relations between the plaintiff and the defendant and he never initiated to develop the business relationship with the plaintiff and never need any order/demand from the plaintiff. Voluntarily, he stated that he asked for estimate. He stated that he was issuing estimate slip to plaintiff whenever their representatives visit at their shop. He again said that it was representatives of Parley and Frooti Company. Though, he denied the suggestion that estimate slips are signed by him, but this statement RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 6 of 8 of appellant is not reliable as PW1 in his crossexamination categorically stated that estimates bear the signatures of the defendant to which there was no rebuttal by the Ld. Counsel for defendant (appellant herein) by giving any suggestion that these estimates do not belong to the appellant or that same have been forged and fabricated by the plaintiff (respondent herein). Even in his crossexamination, the appellant has admitted that these estimates belonged to him and he was issuing estimate slips to plaintiff whenever their representative visited at his shop.
14. In the light of aforesaid evidence of the parties and the material available on record, it stands proved that respondent had supplied the goods to the appellant. The appellant presented the estimates for supplying the goods to the respondent against which the respondent raised the invoices totaling to Rs. 94,242/. There is nothing on record that the appellant has made the payment of aforesaid invoices to the respondent.
15. The Ld. Trial Court after considering the evidence led by the parties has rightly given the findings that the respondent (plaintiff) has supplied the goods to the appellant (defendant) as per the invoices raised and the appellant was held liable to pay the amount of Rs. 94,242/ to the respondent.
16. So far the contention of the appellant that the Trial Court RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 7 of 8 has erred in giving the interest @ 12% p.a. on the principal amount of Rs. 94,242/ is concerned, I do not find that the interest awarded by the Trial Court is inexorbitant keeping in view the commercial transaction between the parties. Similarly, cost of legal notice of Rs. 5500/ awarded to the respondent is not unreasonable and this finding does not call for any interference.
17. Keeping in view the entire facts and circumstances of the case, in my considered opinion, there is no illegality or infirmity in the conclusions arrived by the Ld. Trial Court. The impugned judgment is well reasoned and the present appeal filed against the impugned judgment is devoid of any merit. Hence, appeal is hereby dismissed. No order as to cost.
Appeal file be consigned to Record Room.
TCR be sent back to the Trial Court along with copy of this judgment.
Announced in the open Court (Balwant Rai Bansal) on 12th September, 2014 Addl. District Judge 02 (SouthEast) Saket Courts, New Delhi RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 8 of 8 RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises 12.09.2014 At 1.00 PM Present: None.
Vide my separate judgment of even date dictated and announced in the open court, the appeal filed by the appellant is dismissed.
Appeal file be consigned to Record Room.
TCR be sent back to the Trial Court along with copy of judgment.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 12.09.2014 RCA No. 88/14 M/s Ahuja Pastry Corner Vs. M/s JKM Enterprises Page 9 of 8