Delhi District Court
Nishi Gupta . Properietor O0F M/S Anchit ... vs M/S Aadhar Graphics on 21 October, 2023
In the court of Ms. Anu Grover Baliga, District Judge
(Commercial Court-04), South-East District
Saket Courts, New Delhi
CS/Comm/78/2020
Nishi Gupta Vs. M/s Aadhar Graphics
In the matter of:
NISHI GUPTA
(PROPRIETOR OF ANCHIT MARKETING ASSOCIATES)
Through its Authorized Representative
95, DSIDC Sheds, Okhla Industrial Area, Phase-I
New Delhi. .....Plaintiff
Versus
1. M/S AADHAR GRAPHICS
Through its Partners / Authorised Representatives/Principal Officers
27, DSIDC Sheds, Okhla Industrial Area, Phase-I,
New Delhi-110 020.
2. MR. SREE KUMAR
A-2/154-H, Mayur Vihar, Phase-III
Pocket - A - 2 (LIG)
New Delhi.
3. MR. SURENDER KUMAR
A-2, Block - A, Sanwal Nagar
New Delhi - 110 049.
4. MS. MANJU UPRETI
556-B, Nyay Khanda Titeey
Ghaziabad
Uttar Pradesh - 201 001. ......Defendants
Date of institution : 31.01.2020
Date of reserving judgment : 14.09.2023
Date of pronouncement of Judgment : 21.10.2023
CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 1 of 11
JUDGMENT
1. Vide this judgment, I shall decide a suit filed seeking recovery of Rs.14,34,747/-
2. Briefly stated, the following material averments have been made in the plaint:-
(a) Plaintiff Mrs. Nishi Gupta is the proprietor of M/s Anchit Marketing Associates which has its office at 95, DSIDC Sheds, Okhla Industrial Area, Phase-I, New Delhi-110020 and is interalia engaged in the business of various kinds of printing inks, printing plates, printing chemicals and other allied items in the the name and style of M/s Anchit Marketing.
(b) The Defendants had an open and current account with the Plaintiff and had purchased printing plates of different sizes and allied items from the Plaintiff for which they have outstanding of Rs.14,34,747/-towards the Plaintiff.
(c) That Defendant Nos.2, 3 and 4 are the partners/authorised representative of the Defendant No.1 and have been involved in the dealings made on behalf of Defendant No.1.
(d) That in discharge of their liability, the Defendants had issued several cheques to the Plaintiff which were either not deposited by the Plaintiff on request of the Defendant or were dishonoured.
(e) That despite numerous requests, the Defendants have failed to pay the outstanding amount towards the purchases made by them and hence the present suit.
3. A perusal of the record reflects that Defendant No.3 was served twice through ordinary process - once on 23.03.2021 and secondly on 06.12.2021. The Process Server's report on both the said occasions records that the wife CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 2 of 11 of Defendant No.3 one Ms. Vidya duly received the summons of this Court alongwith the plaint.
4. As regards the remaining Defendants, as per record, the summons sent to them at their last known addresses were received back unserved and thereafter on an application filed on behalf of the Plaintiff under Order V Rule 20 CPC, one of the learned Predecessors of this Court, vide order dated 25.04.2022, had allowed these Defendants to be served through publication. Order dated 08.08.2022 of the learned Predecessor of this Court reveals that vide the said order, Defendant No.3 was proceeded ex-parte after noting that none had appeared on his behalf despite service and that no written statement had also been filed. It was also recorded that remaining Defendants were also served through publication on 17.07.2022 and that they still had time to file their written statements. On 22.11.2022, this Court after noting that none of the Defendants had appeared despite service, had proceeded ex-parte against them and had listed the case for ex-parte evidence.
5. It is also a matter of record that after the Defendants were proceeded ex- parte, the Plaintiff led ex-parte evidence and thereafter the case was listed twice for conclusion of final arguments and it is only on 27.07.2023, when the case was listed for conclusion of final arguments, that Defendant No.3 appeared for the first time alongwith learned Counsel Ms. Gurpreet Kaur. On this date, the Defendant No.3 informed this court that his father had been suffering from Cancer and that he had also been facing certain financial difficulties and that is the reason, he could not participate in this case at all. Apart from making the said oral submission, no application whatsoever was filed on behalf of Defendant No.3 even on 27.07.2023 for getting set aside the ex-parte proceedings against him. As such, Ms. Kaur was informed by this Court that CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 3 of 11 she could join the Court proceedings on this date and make her submissions regarding the final arguments. On her request, it was directed that learned Counsel for the Plaintiff must supply her the list of judgments on which he is relying upon and the case was again listed for conclusion of final arguments on 14.09.2023. On the said date, learned Counsel for the Plaintiff concluded his final arguments and also filed his detailed written submissions. On this date again, Ms. Kaur chose not to advance any arguments and she stated before this court that she does not have the copy of the plaint and the annexures and therefore she is not prepared with her arguments. Keeping in view the submissions made by learned Counsel for Defendant No.3, she was granted another 10 working days thereof to file her written submissions on record and case was fixed for orders on 04.10.2023 at 2:00 P.M. However, instead of making any final arguments or filing written submissions, an application was filed by Defendant No.3 on 21.09.2023 under Order IX Rule 7 CPC praying therein that ex-parte proceedings against him be set aside. The said application was dismissed by this Court vide a detailed order dated 12.10.2023. The Defendant No.3 was however granted an opportunity by this Court to file written final arguments, if he so wished within a week thereof. No written submissions have been filed by the Defendant No.3 till date.
6. Learned Counsel for the Plaintiff, on the other hand, has filed detailed written submissions alongwith judicial dicta that he is placing reliance upon. He has submitted that the evidence led by the Plaintiff must be accepted by this Court to hold that the Defendants are liable to pay to the Plaintiff a principal amount of Rs.14,34,747/- His submission is that the act of the Defendants in choosing not to defend the present suit clearly proves that the claim of the Plaintiff is correct. He has pointed out that the Plaintiff has filed her affidavit for the purposes of ex-parte evidence and has proved the invoices vide which the CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 4 of 11 goods were sold and delivered to the Defendants. He further submits that the ledger account maintained by the Plaintiff has also been proved by the Plaintiff. His submission is that in view of the documentary evidence proved on record, which goes unrebutted, the suit of the Plaintiff is entitled to be decreed. He has pointed out that the office of Defendant No.1 firm where the goods were delivered by the Plaintiff is in Okhla Industrial Area, which is within the jurisdiction of this Court and that therefore this Court does have the territorial jurisdiction to try the present suit. According to learned Counsel for the Plaintiff, the suit of the Plaintiff has also been filed within the period of limitation. He has pointed out that the Plaintiff in her affidavit has categorically deposed that an amount of Rs.14,34,747/- was due to her from the Defendants against the goods supplied by her to the Defendants and that after her several requests and reminders to the Defendants to make the payment of the due amount, 04 cheques had been issued in favour of the Plaintiff by the Defendants each for a sum of Rs.50,000/- with an assurance that the remaining due amount would be paid at the earliest. It is the submission of learned Counsel for the Plaintiff that though the said cheques were dishonoured on presentation, the issuance of the said cheques is to be considered as an acknowledgment of the liability of the Defendants of the amount due from them to the Plaintiff and that if one calculates the period of limitation from this acknowledgment made by the Defendants, the present suit having been filed on 31.01.2020, has been filed within the period of limitation. Learned Counsel for the Plaintiff has relied upon the provisions of Section 18, 19 and Article 113 of the Limitation Act read with Section 60 of the Contract Act to contend that the present suit has been filed within the period of limitation. In support of his contention that the present suit has been filed within the period of limitation, learned Counsel for the Plaintiff has relied upon the following judicial dicta:-
CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 5 of 11• Bharath Skins Corporation Vs. Taneja Skins Company Pvt. Ltd. (2012 186 DLT
290) • Servotech Electricals Pvt. Ltd. Vs. Ashoka Enterprises (India) & Ors. (2018 Supreme (Del) 2771) • Amazing Research Laboratories Ltd. Vs. Krishna Pharma (2023 Supreme (Del)
484) • Variety Book Depot Vs Snab Publishers Pvt. Ltd. (2014 141 DRJ 502) • Gautam Seth Vs. Jaiveer Singh (2017 Supreme (Del) 4043) • Glaze Advertising & Anr. Vs. Mahinder Kumar Gandhi (2010 168 DLT 727) • Shakti Bhog Food Industries Ltd. Vs. Central Bank of India & Anr. (2020 AIR (SC) 2721) • B. K. Educational Services Pvt. Ltd. Vs. Parag Gupta & Associates (2018 AIR (SC) 5601) • Ashok Parshad Vs. Mahalaxmi Sugar Mills Company Ltd. (2013 Supreme (Del) 1180)
7. I have carefully considered the submissions made by learned Counsel for the Plaintiff and have gone through the evidence led by the Plaintiff and the judicial dicta relied upon by learned Counsel for the Plaintiff.
8. As narrated hereinabove, the Plaintiff, Ms. Nishi Gupta, proprietor of M/s Anchit Marketing Associates, has filed her affidavit for the purposes of ex-parte evidence. In the said affidavit, she has categorically deposed that on the orders placed upon her firm by the Defendants, she had supplied goods to the Defendants from time to time. The invoices vide which material was sold to the Defendants and Form 2B showing deposit of tax and proving delivery of material to Defendants have been exhibited as Ex.PW1/4 (Colly. - consisting of 52 invoices) and Ex.PW1/5. She has also deposed that she used to maintain a ledger account with respect to the goods delivered by her to the Defendants and the payments received against the said goods. The said ledger account has been proved by this witness as Ex.PW1/2. The said ledger account reflects that an amount of Rs.14,34,747/- was due from the Defendants to the Plaintiff as on the date of filing of the present suit and the last payment that was made by the Defendants was on 25.10.2016. This witness has also deposed that to discharge CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 6 of 11 their liability the Defendants had issued in her favour four cheques bearing No.000342, 000343, 000344 and 000345 dated 25.09.2017, 05.10.2017, 24.11.2017 and 26.11.20217, each for Rs.50,000/- but that all the said cheques were dishonoured on presentation. Copies of the aforementioned cheques issued by the Defendants against part payment of the due amount have also been placed on record (the original of the said cheques are stated to be filed in the Court of learned Metropolitan Magistrate in proceedings under Section 138 of the Negotiable Instruments Act).
9. In the considered opinion of this Court, in view of the invoices and the statement of account proved on record by the Plaintiff, it is to be held that the Plaintiff has been able to prove that she had supplied goods to the Defendants against which a payment of Rs.14,34,747/- remained due to be paid by the Defendants to the Plaintiff. The address of Defendant No.1 being Okhla Industrial Area, Phase I, New Delhi, within the jurisdiction of this Court, this Court also has the territorial jurisdiction to try the present suit. The suit is also to be held to have been filed within the period of limitation in view of the evidence led by the Plaintiff and the judicial dicta referred to by the learned Counsel for Plaintiff. It has been rightly pointed out by learned Counsel for the Plaintiff that the judicial dicta laid down by the Hon'ble Delhi High Court in the case titled as Bharath Skins Corporation Vs. Taneja Skins Company Pvt. Ltd. 2012 186 DLT 290, is squarely applicable to the facts and circumstances of the present case. In the said case also, goods were being supplied by the Plaintiff to the Defendant and the Plaintiff was maintaining an open running account with the Defendant. While dealing with the issue of limitation, the Hon'ble Division Bench of the Delhi High Court has made the following observations in para 20, 23, 24 and 25 of its judgment:-
CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 7 of 1120. In case of a running and non-mutual account between the buyer and seller, when goods are delivered by the seller to the buyer, the value of the goods is debited in the debit column and when amounts are paid by the buyer to the seller, they are entered in the credit column. The difference is continuously struck in the column for balance. In such a case, when the buyer defaults to make balance payment, the seller's action is not for the price of goods sold and delivered but for the balance due at the foot of an account. Thus, Article 14 would have no application in suits of recovery of money due on a running and a non-mutual current account between the buyer and seller.
23. The upshot of the above discussion is that Article 14 of the Schedule to the Limitation Act, 1963 does not apply to suits for recovery of money due on a running and current but a non-mutual account between the buyer and seller i.e. an account of the kind with which we are dealing.
24. There being no Article in the Schedule to the Limitation Act, 1963 dealing with suits for recovery of money due on running and current but non-
mutual accounts, in such circumstances, the residual article viz. Article 113 applies to such suits.
25. Under Article 113, the period for limitation for filing a suit is three years and the same begins to run when the right to sue would accrue when claim was denied in response to the legal notice dated 26.06.1985 on 13.07.1985 but since Rs.7,000/- was paid on 13.07.1985 and 24.07.1985 (Rs.2,000/- on the former date and Rs. 5,000/- on the latter date), limitation would commence from 24.07.1985. The suit being filed on 02.09.1985, governed for purposes of limitation by Article 113 the suit would be within limitation.
10. The said judicial dicta makes it clear that in suits of recovery of money due on a running and a non-mutual current account between the buyer and seller, limitation has to be computed in terms of Article 113 of the Limitation Act. In the present case also, the Plaintiff has pleaded and proved that she was maintaining a running account with respect to the goods supplied to the Defendants and the payments received from them and that the Defendants had made last payment towards the running account on 25.10.2016 and thereafter had issued cheques towards part payment of the amount due to her on 25.09.2017, 05.10.2017, 24.11.2017 and 26.11.2017. The said running account has been proved as Ex.PW1/2 and it has been rightly contended by learned Counsel for the Plaintiff that the aforementioned cheques issued by the Defendants amount to acknowledgment of the Defendants of their debt towards the Plaintiff in terms of Section 18 and 19 of the Limitation Act and that CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 8 of 11 therefore the present suit having been filed on 31.01.2020, has been filed within the period of limitation.
11. It will be relevant at this stage to mention that in the plaint filed the Plaintiff had described the Defendant No.1 as M/s Aadhar Graphics, a firm and Defendants No.2 to 4 as its partners/authorised representatives/principal officers. Learned Counsel for the Plaintiff has submitted that the Plaintiff did not have the knowledge of the exact constitution of the Defendant No.1 firm, in whose name, the Defendants No.2 to 4 had been dealing with her and that as per the provisions of Order XXX CPC it was for the Defendants to have informed this Court about the constitution of the firm. He has further pointed out that Defendant No.3 on 12.10.2023 had given a statement before this Court that he alongwith Defendant No.2 and 4 are the partners in the Defendant No.1 firm. His submission is that in view of the said statement, the present suit is to be decreed against all the Defendants. Taking into consideration the statement given by Defendant No.3 before this Court on 12.10.2023 and accepting the aforementioned contention of learned Counsel for Defendant, it is hereby held that all the Defendants are liable to pay to the Plaintiff Company the principal amount of Rs.14,34,747/- on the date of filing of the suit.
12. Apart from this principal amount, the Plaintiff has claimed interest @24% per annum w.e.f 24.10.2016 till the filing of the suit. Learned Counsel for the Plaintiff has submitted that the Plaintiff is claiming the said rate of interest on the basis of the terms contained in the invoices raised by the Plaintiff. On a query by this Court, learned Counsel for the Plaintiff has fairly admitted that none of the invoices bear the signatures of the Defendants and he therefore has then prayed that this interest be awarded from the date of legal notice issued to the Defendant on 16.10.2017, which according to the evidence led, was duly CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 9 of 11 served upon the Defendants.
13. I have considered the said submissions of learned Counsel for the Plaintiff. The Hon'ble Delhi High Court in the cases CS (OS) 209 / 2016 titled as Gopesh Mehta Vs Swift Initia Pvt. Ltd. and RSA No. 195 / 2004 titled as Sh. Zile Singh Vs. Sh. Mangloo Ram Bansal, has held that even if there was no agreement between the parties with respect to the payment of interest on delayed payments, a Plaintiff is entitled to claim interest from the date of issuance of the legal notice to the Defendants.
14. Keeping in view the said judicial dicta and the legal notice dated 16.10.2017 issued by the Plaintiff to the Defendants claiming interest from them, interest on the principal amount adjudged of Rs.14,34,747/- is allowed @ 10% p.a. from 16.10.2017 till the date of filing of the suit i.e. 31.01.2020.
15. As regards the pendente lite and future interest, learned counsel for the Plaintiff has submitted that in terms of Section 34 of CPC, since the liability in relation to the sum adjudged has arisen out of a commercial transaction, this Court must award interest at the rate of 10% per annum for the same is the rate on which moneys are lent and advanced by nationalised banks in relation to commercial transactions. Taking into consideration that many suits are pending in this Court wherein nationalized banks are claiming recovery of unpaid loan amounts along with interest at the rate of 10% per annum, the aforesaid contention of the learned counsel is accepted.
16. As such, the suit of the Plaintiff is hereby decreed against all the Defendants for an amount of Rs.14,34,747/- (Rupees Fourteen Lakhs Thirty Four Thousand Seven Hundred and Forty Seven Only). Interest on the principal CS/Comm/78/20 Nishi Gupta Vs. M/s Aadhar Graphics Page 10 of 11 amount adjudged of Rs.14,34,747/- is allowed @ 10% p.a. from 16.10.2017 till the date of filing of the suit i.e. 31.01.2020. Pendente lite and future interest are awarded at the rate of 10% per annum, on the principal amount adjudged of Rs.14,34,747/-. Costs of the suit are also allowed. Decree Sheet be prepared accordingly. This file be consigned to Record Room.
Digitally signed ANU by ANU GROVER
GROVER BALIGA
Date: 2023.10.25
Announced in the Open BALIGA 15:26:22 +0530
Court on 21st October, 2023 (Anu Grover Baliga)
District Judge (Commercial Court-04)
South-East/Saket Court
New Delhi.
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