Delhi District Court
Chemi Tech Engineers Pvt Ltd vs Swastic Industries ( Through Its ... on 23 March, 2024
IN THE COURT OF SH.RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-08
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS (COMM.) No.236/2020
(Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.)
CNR No. DLSE01-003015-2020
Chemi Tech Engineers Pvt. Ltd.
Through its Authorised Representative
Mr. Tapish Gupta
Office at:
S-2 (2nd Floor), Okhla Phase-II,
Okhla, New Delhi - 110020
..... Plaintiff
Through:- Sh. Aditya Kapoor, advocate.
Versus
1. M/s Swastic Industries
Through its Proprietor
Mr. Amit,
B-359/5, Prem Vihar,
Karawal Nagar, Delhi-110094.
.........(Defendant no.1)
2. Mr. Amit
B-359/5, Prem Vihar,
Karawal Nagar,
Delhi-110094.
.........(Defendant no.2)
Date of filing of suit: 15.09.2020
Arguments heard on: 04.03.2024
Date of Judgment: 23.03.2024
JUDGMENT:
(1) Plaintiff company filed the present suit under Order XXXVII of The Code of Civil Procedure (in short 'CPC') against defendant(s) for seeking recovery of Rs.9,81,674/-(Rupees nine lacs eighty on thousand six hundred and seventy four only) CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 1 of 10 along with pendente lite and future interest @ 18% per annum and cost of the suit.
(2) On the request of counsel for plaintiff, vide order dated 04.03.2024, the suit filed under Order XXXVII CPC was directed to be treated as an ordinary civil suit. BRIEF FACTS:
Case of the Plaintiff:
(3) Plaintiff company is registered as a "Small Manufacturing Enterprises (in short 'SME') with the Ministry of Micro, Small and Medium Enterprise, having its registered office at S-2, 2nd Floor, Okhla Industrial Area, Phase-II, Okhla, New Delhi. Plaintiff is involved in the business of chemicals and adhesives in the name and style of M/s Chemi Tech Engineers Pvt. Ltd.
(4) The present suit has been preferred by Mr. Tapish Gupta, C.E.O. of the plaintiff company, who is duly authorised to sign and verify the present pleadings on behalf of plaintiff by way of Board Resolution dated 27.08.2019.
(5) Defendant no.2 approached the representatives of the plaintiff company in order to purchase superior quality products supplied by plaintiff. Plaintiff agreed to supply goods as per requirements of defendants.
(6) Parties agreed that defendant will raise his demand as per his requirements and plaintiff will supply as per demand raised by defendant. Defendant will make payment in accordance with invoice raised by plaintiff in the name of defendant no.1 within sixty days.
(7) On 13.04.2017, plaintiff supplied the goods for the first CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 2 of 10 time as per the requirements of defendant.
(8) As per the agreed terms, plaintiff on various occasions supplied goods to defendant as per the following schedule:-
S. No. Invoice Date on Invoice Amount on Number Invoice 1 7 13.04.2017 1,84,212/-
2 22 10.05.2017 1,89,630/-
3 32 23.05.2017 1,49,537/-
4 40 04.06.2017 1,86,921/-
(9) It is alleged that the cheques issued by defendant were very erratic and were delayed due to not adhering to the agreed credit period. However, despite the delay in issuance of cheques, plaintiff always accommodated the defendant with the goods. In regard to the business dealings, plaintiff never questioned or raised any issue because of such delays, rather continued with the supply of the superior quality goods. In lieu of discharge of its liability towards the invoices, defendant issued five cheques. On presentation, the 1st cheque dated 26.12.2017 bearing invoice number 908546 was dishonored and other four cheques were not presented to the bank upon various requests made by defendant. Details of cheques issued by defendant in favour of plaintiff company are given as under:-
S. Cheque Number Amount Name of the Bank Name of the Reason No. and Date on of Cheque Bank given for Cheque Issued where dishonour deposited 1 908546 1,00,000/- Punjab National Vijaya Bank- Insufficient Dated- 26/12/2017 Bank - Mustafabad, Okhla Branch Funds Delhi Branch 2 908547 Dated- 1,00,000/- Punjab National - Not presented 25/01/2018 Bank - Mustafabad, on request Delhi Branch CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 3 of 10 3 908548 Dated- 1,00,000/- Punjab National - Not presented 25/02/2018 Bank - Mustafabad, on request Delhi Branch 4 908549 Dated- 1,00,000/- Punjab National - Not presented 25/03/2018 Bank - Mustafabad, on request Delhi Branch 5 908550 Dated- 2,20,000/- Punjab National - Not presented 25/04/2018 Bank - Mustafabad, on request Delhi Branch (10) Plaintiff avers that due to business relations developed over the time, it did not initiate any proceedings under Section 138 of The Negotiable Instruments Act but rather informed the defendant that the cheque, so issued by him was not encashed at the time of presentation. Being informed of dishonour of cheque, defendant took excuse of personal difficulty with a promise to clear off the liability in some time.
(11) Defendant requested to pay for the undisputed ledger balance in the Account Books of plaintiff in small amount(s), so as to discharge its liability and continue with the business relation which was being hampered due to the delay in payment(s). He made several requests and promises before the representatives of plaintiff company, wherein he sought some time to clear-off the dues in small amount.
(12) Keeping in view the request of defendant, plaintiff agreed and allowed the defendant to make payments in small amounts(s). In order to discharge its partial liability, defendant made last payment of Rs.90,000/- through NEFT on 25.07.2017 No other payment has ever been credited in favour of plaintiff as the cheques issued later were either dishonored or not presented, as reflected in the Ledger Statement of plaintiff company in the name of defendant.
(13) Defendant assured to adhere to the promises made by CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 4 of 10 him to discharge his liability of the undisputed ledger balance along with due interest but failed to honour his commitments. Despite reminders and persistent requests, defendant did not make any payment and ignored all the notices/intimation. (14) Defendant despite issuance of legal notice dated 25.07.2019, failed to make payment of the outstanding amount. (15) Thereafter, plaintiff decided to initiate legal proceedings against defendant(s). In order to fulfill the requirements of Section-12-A of The Commercial Courts Act, on 02.12.2019, plaintiff submitted an application for mediation before the DSLSA, Mediation Center, Saket District Courts, New Delhi. Since, defendant did not participate in mediation proceedings, Non-Starter Report was issued by Mediation Centre on 31.01.2020.
DEFENDANTS ARE EXPARTE:
(16) Pursuant to filing of the suit, summons were directed to be issued against defendants. Plaintiff filed affidavit-cum-
certificate u/s 65B of The Indian Evidence Act regarding service of summons upon defendants through whatsapp and speed post. According to affidavit, defendant was served through whatsapp on 16.11.2020 and through speed post on 17.11.2020. As none appeared on behalf of defendants despite calls, defendants were directed to be proceeded ex parte vide order dated 21.11.2022. (17) From the pleadings, the following issues were framed:-
(i) Whether the suit is within limitation and maintainable as per the provisions of The Commercial Courts Act?OPP.
(ii) Whether plaintiff is entitled to recover Rs.6,20,300/-
from defendant?OPP.
CS (COMM.) No.236/2020(Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 5 of 10
(iii) Whether plaintiff is entitled to interest and if so, at what rate?OPP.
(iv) Relief. EVIDENCE & LIST OF DOCUMENTS: (18) In support of its case, plaintiff has examined
Sh.Bhawani Shankar Barua, Assistant/AR as PW1. He filed his evidence by way of affidavit, Ex.PW1/A. (19) Before coming to the testimony of plaintiff's witness, the documents relied upon by PW1 are hereby put in a tabulated form as under:-
List of documents:
Sr. Details of document Exhibit No. No. 1 True copy of MSME Certificate Ex. PW1/1 2 Board of resolution Ex. PW1/2 3 True copy of ledger statement of account of Ex.PW1/3
defendant in the books of plaintiff company 4 Copies of Invoices Ex. PW1/4 (Colly.) 5 Certificate u/s 65B of The Indian Evidence Act dated Ex.PW1/5.
07.08.2023 6 Copies of five cheques i.e. bearing no. 908546 dated Mark-PW1/6 26.12.2017, 908547 dated 25.01.2018, 908548 dated (Colly.) 25.02.2018, 908549 dated 25.03.2018 and 908550 dated 25.04.2018 7 Copy of legal notice Ex. PW1/7.
8 Original speed post receipts Ex. PW1/8 (Colly.).
9 Copy of envelope of speed post letter Mark-PW1/9 (Colly.) 10 Copy of mediation application submitted to DLSA, Mark-PW1/10. Saket District Courts, New Delhi on 02.12.2019 11 Non-starter report Ex. PW1/11 (Colly).
12 Certificate u/s 65B of The Indian Evidence Act dated Ex. PW1/12.
19.11.2020 CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 6 of 10 13 Speed post receipts Ex. PW1/13 (Colly).
14 Copy of tracking reports alongwith certificate u/s Ex. PW1/14
65B of The Indian Evidence Act (Colly.)
FINDINGS AND OBSERVATIONS:
(20) I have heard and considered the submissions advanced
by learned counsel for plaintiff and perused the material on record. The issue wise findings are as under:-
Issue no.(i) Whether the suit is within limitation and maintainable as per the provisions of The Commercial Courts Act?OPP. (21) PW1 Sh.Bhawani Shankar Barua deposed that plaintiff supplied goods to defendant on credit basis and raised invoices in the name of defendant M/s Swastic Industries. He proved the invoices as Ex.PW1/4 (colly.) and the Certificate u/s 65B of The Indian Evidence Act as Ex.PW1/5. He further deposed that in order to discharge his liabilities towards the invoices, defendant issued five cheques. The details of cheques issued by defendant in favour of plaintiff are given at S.No.6 of the table given in para no.19. Cheque bearing no.908546 dated 26.12.2017 issued by defendant was dishonoured on presentation in the bank. The other four cheques were not presented on the assurance of defendant. However, despite promises and assurances, defendant failed to make payment against the invoices. (22) As per para no.22 of the plaint, defendant made payment of Rs.90,000/- through NEFT to plaintiff on 25.07.2017.
Plaintiff filed the present suit on 15.09.2020 i.e. within three years from the date of dishonour of cheque no.908546 dated 26.12.2017. Thus, the suit filed by plaintiff is well within CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 7 of 10 limitation.
(23) The subject matter of the suit is a 'commercial dispute' as defined u/s 2(1) (c) of The Commercial Courts Act, 2015 as plaintiff supplied goods to defendant on his request and raised invoices against him for which no payment has been made by defendant to plaintiff.
(24) In view of above, it is held that plaintiff has succeeded to discharge the onus to prove this issue. Accordingly, issue no.1 is decided in favour of plaintiff and against the defendant(s). Issue no.(ii) Whether plaintiff is entitled to recover Rs.6,20,300/- from defendant?OPP.
(25) Plaintiff supplied goods to defendant and raised invoices. The details of invoices raised by plaintiff against defendant are mentioned in para no.8 and have been proved as Ex.PW1/4 (colly.). In order to discharge his liability, defendant no.2 issued five cheques, particulars of which are given in para no.19 at S.No.6. Defendant failed to make payment against the cheques issued by him in favour of plaintiff. (26) As defendant has availed the services of plaintiff, therefore, he is liable to make payment against the invoices in respect of the goods received by him.
(27) As per case of plaintiff, defendant issued five cheques amounting to Rs.6,20,000/- against the outstanding dues. Ex.PW1/3-(colly.) i.e. the ledger statement of account of defendant in the plaintiff's Books of Account shows outstanding amount of Rs.6,20,300/- as on 01.04.2018. Defendant has failed to prove on record that he has made any payment against the CS (COMM.) No.236/2020 (Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 8 of 10 outstanding dues as claimed by plaintiff in the present suit. Therefore, plaintiff is entitled to recover an amount of Rs.6,20,300/- from defendant(s) as claimed in the suit. (28) Plaintiff has succeeded to discharge the onus to prove this issue. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Issue no.(iii) Whether plaintiff is entitled to interest and if so, at what rate? OPP.
(29) As already held in issue no.(ii) that defendant withheld payment of Rs.6,20,300/- of plaintiff for the services availed by him and did not make payment to plaintiff despite requests and reminders, plaintiff is entitled to interest. (30) Plaintiff has claimed pendente lite and future interest on the outstanding amount @ 18% per annum. The amount claimed by plaintiff is highly excessive. No justification and sufficient ground has been furnished for claiming the interest at such a higher side. Accordingly, I am of the view that interest of justice shall be subserved, if plaintiff bank is granted interest @ 7.5% per annum in terms of The Interest Act, 1978. (31) This issue is decided in favour of plaintiff in the above terms.
Relief (32) For the aforesaid reasons and discussions, I am of the view that plaintiff has succeeded to prove its case. Accordingly, the suit filed by plaintiff is decreed with cost. The following reliefs are granted to plaintiff:-
CS (COMM.) No.236/2020(Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 9 of 10
(a) Defendant(s) is directed to pay an amount of Rs.6,20,300/- to plaintiff.
(b) Defendant(s) is further directed to pay interest @ 7.5% per annum on the outstanding amount of Rs.6,20,300/- from 25.05.2017 till 20.08.2020.
(c) Defendant(s) is further directed to pay interest @ 7.5% on the outstanding amount of Rs.6,20,300/- from the date of filing of the suit i.e. 15.09.2020 till date of judgment and from date of judgment till realization of the amount.
(33) Decree Sheet be prepared accordingly.
(34) File be consigned to Record Room.
Announced in the open court (RAJ KUMAR TRIPATHI)
Dated: 23.03.2024 District Judge (Commercial Court)-08,
South-East District, Saket Courts,
New Delhi
CS (COMM.) No.236/2020
(Chemi Tech Engineers Pvt. Ltd. vs. M/s Swastic Industries & Anr.) Page No. 10 of 10