Delhi District Court
Ms Emilceramica S.P.A vs Ms Ramco Marketing Company Anr on 25 September, 2024
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IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of
CS DJ 9822/2016
M/S EMILCERAMICA S.P.A,
a company incorporated under the
laws of ltaly having its Office at 41042
Fiorona Modenese (MO),
Italia, via GhiarolaNuova, 29, Italy.
Through
Mr. Pankaj Sachdeva
It's duly constituted attorney
901. 9th Floor, Vikrant Tower,
4 Rajindera Palace, New Delhi-110 008 ....Plaintiff
versus
1. M/S. RAMCO MARKETING COMPANY
Sole Proprietorship Concern having its office at
New M-47,Greater Kailash -II,
New Delhi-110 048
through its sole proprietor Mr. Vineet Bhutani
Also at:
86-IDC, Mehrauli Road, Gurgaon.
2. MR. VINEET BHUTANI,
Sole Proprietor,
M/s. Ramco Marketing Company
New M-47,Greater Kailash -II,
New Delhi-110048
Also at:
86-IDC, Mehrauli Road, Gurgaon.
3. M/S. HYDROBATHS RAMCO MARKETING
PRIVATE LIMITED.
Having its Office at 86-IDC,
Mehrauli Road, Gurgaon. ...Defendants
M/s. Emilcermica SPA vs.
M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Date of Institution : 09.07.2010
Date reserved for judgment : 11.09.2024
Date of judgment : 25.09.2024
DECISION : DECREED
SUIT FOR RECOVERY OF EURO 65,626.46
ALONGWITH INTEREST.
JUDGMENT
1. This is a suit filed by plaintiff company against the defendants for recovery of Euros 65,626.46 with pendente lite and future interest @ 12% per annum.
2. Initially the present suit was filed against three defendants and vide order dt 11.01.2012, M/s. M/s. Hydro Baths Ramco Marketing Pvt. Ltd was directed to be impleaded as defendant no. 4. Lateron vide order dt 13.10.2016 Sh. Vishal Dutta, who was originally defendant no. 3 was deleted from the array of parties and amended memo of parties was filed accordingly. As per amended memo of parties, M/s. Hydro Baths Ramco Marketing Pvt. Ltd is now defendant no. 3 and shall be referred as defendant no.3 in this judgment.
CASE OF PLAINTIFF Brief facts of the case, as set out in the plaint are as under:
3. That the Plaintiff Company is based in Italy carrying on the business of manufacturing of materials for flooring, wall tiles, and technical components etc. under various M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -3- brands and trade names namely Ergon, Ceramica and Dedra.
4. The present suit has been filed through its AR Shri Pankaj Sachdeva, who was authorised vide POA dated November 2005.
5. The defendant no. 1 a proprietorship concern engaged in the business of importers and marketers of Sanitary items and manufacturing of bath tubs. Defendant No. 2 is the sole proprietor of the Defendant No. 1.
6. The defendants have been placing orders from time to time upon the plaintiff company against which supplies have been made on credit basis as per the requirements and specifications of the defendant and to their satisfaction.
The Plaintiff used to raise bills for the supplies made and the defendants were making on account payments towards the same.
7. The Plaintiff used to maintain an open and running current account in the usual course of business. As per the account maintained by the Plaintiff, a sum of Euro 38,154.92 was due as on 26.02.2004 i.e. when the last payment was made by the defendant. The last part payment made by the defendants was of Euros 5827.02 through Credit Note against Invoice No. 600265. The details of the invoices raised, the payments made and the balance amount remaining are as under:
M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -4- Brand name Invoice No. Date of Amount Amount Balance Invoice (in Euro) partly paid amount (in Euro) (in Euros) Ceramica 114722 20.11.2003 11940.17 3922.85 8017.32 Ceramica 115921 16.12.2003 8339.4 0 8339.4 Dedra 954342 19.12.2003 6695.52 0 6695.52 Ergon 600265 28.01.2004 20929.7 5827.02 15102.7 Total 47904.79 9749.87 38154.92
8. Despite repeated requests the defendants failed to clear the outstanding amount.
9. The Plaintiff has reasons to believe that the Defendants have shown the name of the Plaintiff in the list of sundry creditors in their account books uptil the period ending 31.03.2008, though is not aware whether the same is shown for the periods ending 31.03.2009 and 31.03.2010 or not.
10. The plaintiff sent a legal notice dated 01.03.2005 upon the defendants demanding payment of the balance amount of Euro 38,154.92. However, despite service of the legal notice, the Defendants did not clear the outstanding dues.
11. The Defendants are liable to pay Euro 38,154.92 and the pre-suit interest @ 12% per annum on the above said amount from 26.02.2004 amounting to Euro 27,471.54.
12. Hence the present suit is filed by plaintiff against the defendants for recovery of the Euro 65,626,46 (Euro 38,154.92 + presuit interest @ 12% p.a from 26.02.2004 M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -5- amounting to Euro 27,471.54) alongwith pendente lite and future interest @ 12% p.a. CASE OF DEFENDANT NO. 2
13. The defendant no.2 filed its written statement denying the averments in the plaint and raising some preliminary objections. It is averred that the court lacks territorial jurisdiction as no part of cause of action arose in Delhi and the supply of goods and payments of goods happened at Gurgaon office and even the invoices were issues at Gurgaon Office. It is averred that the suit is barred by limitation, the case of plaintiff being a claim relating to the period 2003 & 2004 and the suit being filed in 2010. It is also averred that due to suppression of material facts, the suit is liable to be dismissed as the plaintiff has not disclosed in its plaint that it has received an amount of Euro 31796 which was duly credited from the account of defendant no.1 in the month of May 2004 and October, 2004. It is also averred that suit is bad for mis-joinder the parties as since 01.04.2009 the defendant no.1 is not in existence as Vide MOU dt 01.04.2009, between M/s. Hydrobaths Ramco Marketing Pvt. Ltd (HRMP) and defendant no. 1, HRMPL had taken over defendant no. 1 with all its existing business with fixed assets, other than immovables and also all the accounts, current assets including cash, banks, sundry debtors, Loans and Advances and as per the audited book value as on M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -6- 31.03.2009. (The said objection of defendant no.2 stood cured by subsequent impleadment of HRMPL vide order dated 11.01.2012).
14. However, on merits, it is averred by the defendants that since 01.04.2009, Defendant no. 1 is not in existence as it was taken over by defendant no1.
15. It is averred that it was agreed between the Defendant and the Plaintiff that the defendant no. 1 would be the sole distributor of the Plaintiff in India and the Plaintiff would supply products to the defendants as per their specification. However, the dispatched goods were not as per the specifications and the quality ordered by the defendant no. 2.
16. The Plaintiff dispatched the first consignment of goods in December 2003 but the same was of poor and rejected quality. The defendant immediately intimated and informed Mr. Arigo Martinelli, CEO of plaintiff company, on telephone as well as through e-mails about the defects in the dispatched consignment, who assured to look into the defects and appropriately supply the goods as per the specifications and requirement. He further assured to compensate the Defendants for the loss.
17. Despite the assurances given by the Plaintiffs, the Plaintiff continued to dispatch and supply further consignment of the defective goods through their other sister companies namely:- M/s Dedra Ceramics, M/s Ergon M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -7- Engineered stone to the Defendants till March 2004. No prior consent was taken by the Plaintiff from the Defendants for the said supplies. Thus without removing and replacing the defective goods, the plaintiff kept on supplying the defective goods to the Defendants. The further consignment of goods also arrived in India and was lying at the warehouse. Despite protest by defendant, the plaintiff did not pick up the goods and the defendant had no other remedy but to remove the goods as they were incurring heavy charges against freight, custom duty etc.
18. It is averred that the goods/material supplied by the Plaintiff being of poor and rejected quality were unsaleable in the Indian Market and since then the unsold goods are lying dead in the godown of the defendant.
19. It is averred that no running open and current account was maintained between the Plaintiff and the defendant. The defendants also averrs that the payment of a sum of Euro 31,796/- has already been made to the Plaintiff and the same has been duly credited from the Account of the Defendant no. I in the month of May 2004 and October 2004 in favour of the plaintiff and the defendants are not liable to make any further payment to the plaintiff.
20. It has also been averred that Sh. Pankaj Sachdeva is not the AR of the plaintiff and has no authority to file the suit.
M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -8- REPLICATION OF THE PLAINTIFF TO THE W.S OF DEFENDANT NO.2 :
21. The plaintiff filed its replication denying the averments in the W/S and reiterating the contents of the plaint.
22. It is averred that the defendant no. 1 has its office at Delhi and the defendant no.2 reside in Delhi and all the defendants carry on business in Delhi. It is submitted that the goods were sold by the plaintiff to the defendant with a cause called "ex-factory" wherein the defendants were liable to entrust the carrier to remove the goods from the warehouse. It is further submitted that further goods were supplied by the plaintiff to the defendants only after the defendants asked the carrier to load and remove the goods already supplied to the defendant by the plaintiff.
23. It is stated that the defendants have been placing order from time to time against which supplies have been made from time to time. The plaintiff in pursuance to the various purchase orders sold, supplied and delivered the goods ordered by the defendants as per the requirements and specifications to the satisfaction of the defendants. The plaintiff used to raise bills for the supplies made and the defendants were making on account payments towards the supplies made.
24. It is stated that the defendant once approached the plaintiff for settlement and as one time settlement but since M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016 -9- the defendant failed to honor its commitment, the defendant is liable to pay the entire amount of Euros 23,007.24 (at that relevant point of time) alongwith amount of Euros 15102.70 against the Invoice No. 600265 this totaling to about Euros 38109.94 being the amount claimed in the suit alongwith interest on delayed payment.
25. It is stated that that payments made by the defendant was towards other invoices which are not the subject matter of the present suit.
CASE OF DEFENDANT NO. 4 (now defendant no.3):
26. Defendant no. 3 filed the WS denying the averments in the plaint and raising various preliminary objections as to lack of territorial jurisdiction and bar of limitation on the same grounds as averred in the W.S of defendant no. 2. It was also stated that the plaintiff has no cause of action against the defendant as there was no privity of contract with the defendant as the documents relied upon by the plaintiff do not relate to the defendants. It was stated that the defendant cannot be held liable for business transaction between the plaintiff and defendant no. 1 which have taken place prior to its coming into existence. Objection to the maintainability of the suit against the defendant was taken on the ground that the authorised representative of the plaintiff has no authority to contest the suit against the defendant, as per power of attorney filed by the plaintiff. It was also stated that the defendant has been wrongly M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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impleaded as a party as he is neither necessary nor proper party. It is stated that no allegations have been made and no relief has been claimed in the plaint against the defendant.
27. However, on merits, the case of defendant no.3 was largely based on the same grounds as that of defendant no. 2 and it was additionally stated that defendant no. 3 was incorporated in April, 2009 and thus cannot be held liable for any transaction which has taken place it coming into existence. Relying on the same grounds as stated in the preliminary objections, it is also averred that no amount is due and payable to the plaintiff and the account of plaintiff stands settled as per its information.
REPLICATION FILED BY THE PLAINTIFF TO THE W/S OF DEFENDANT NO. 4 (now defendant no.3)
28. Plaintiff filed its Replication denying the contents of the W.S of defendant no. 3 and reiterating the contents of the plaint and also the replies averred in replication to WS of defendant no.3.
29. It is stated that the registered office of the defendant no. 3 is shown at Delhi as per the Memorandum of Understanding dt 01.04.2009 filed by defendant no. 3. It is stated that the defendant no.1 has its office at Delhi and the defendant no. 2 resides in Delhi and all the defendants carry on business in Delhi.
M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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30. It is stated that in terms of the disclosures made by the defendant no. 2 in para 4 of the W.S and also as per clause 2.3 of the Memorandum of Understanding dt 01.04.2009 as filed by the present defendant, all of the liabilities of Ramco including secured loans from Banks and Financial Services companies, Sundry Creditors, Expenses payable and other current liabilities appearing in the books of account of Ramco Corporate office and all its branches were transferred to M/s. Hydrobaths Ramco Marketing Private Limited as per their audited books as on 31.03.2009. It is further submitted that having taken over defendant no.1, all the defendants, including defendant no. 3 are jointly and severally liable to make the payment to the plaintiff as claimed in the suit. For the above same reaons, the defendant no. 3 is averred to be a necessary and proper party.
31. It is denied that there is no privity of contrat between the parties. It is stated that as per clause 2.3 of MOU dt 01.04.2009, the defendant no. 3 is jointly and severally with other defendants to make the payment to the plaintiff as claimed in the suit.
32. It is stated that the defendant no. 1 is the sole Proprietorship of defendant no.2 and that the said defendant no. 2 is the Director of defendant no. 3. It is further stated that the plaintiff has reaons to believe that the defendant no.3 is only a comauflage of defendant no.1 M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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(sole proprietor of defendant no.2) to mislead and cheat everyone and that all the defendants are hand in glove with each other.
ISSUES:
33. From the pleadings of the parties, following issues were framed vide order dt 07.05.2014:
i). Whether the suit is barred by limitation ? OPD
ii). Whether the Delhi Courts have no territorial jurisdiction to entertain and try this suit ? OPD
iii). Whether the suit is without any cause of action ? OPD
iv). Whether the suit is bad for mis-joinder for defendant no. 4 ? OPD4
v). Whether the plaintiff is entitled to recover Euro 65,626.46 from the defendants ? OPP
vi). Whether the plaintiff is entitled to interest, if so at what rate ? OPP
vii). Relief.
PLAINTIFF'S EVIDENCE
34. In support of its case, the plaintiff examined Mr. Marco Covili, Export Sales Manager of the plaintiff company as PW1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:-
a). Board Resolution dt 18.11.2014 Ex.PW1/1
b). Power of Attorney Ex.PW1/2
c). Invoice dt 19.12.2003 Ex.PW1/3
d). Invoice dt 28.01.2004 Ex.PW1/4
e). Invoice dt 20.11.2003 Ex.PW1/5
f). Invoice dt 16.12.2003 Ex.PW1/6
g).Legal notice dt 01.03.2005 Ex.PW1/7 M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Defendants' Evidence
35. The defendants in support of their case examined Sh.
Vineet Bhutani, as DW1. He tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents:-
a). Bank Statement pertaining Ex.DW1/2 from 01.05.2004 to 15.06.2004
b). Bank Statement pertaining Ex.DW1/3 from 15.09.2004 to 15.10.2004
c). Copy of letter dt 01.12.2010 Mark DW1/4 sent to Union Bank of India
d). Attested copy of A/c. Statement Ex.DW1/5 dt 22.01.2011 of UBI, Overseas DW1 had deposed as defendant no. 2 as well as in the capacity of Director of defendant no. 3 and had filed two separate affidavits of evidence, however, vide order dt 02.11.2017, it was directed that the cross-examination of the said witness shall be common.
36. DW2 is Sh. Praveen Kumar, Assistant from the Office of Dy. Excise and Taxation Commissioner. He had brought the certified copy of Central Sales Tax Certificate of Registration dt 20.12.2000 of the defendant no. 1 company and the same is Ex.DW2/1 (OSR). Authorization letter in his favour is Ex.DW2/2. The application for the certificate of registration is Ex.DW2/3 (OSR). The document pertaining to the place of business of defendant no.1 are Ex.DW2/4 & Ex.DW2/5 (OSR).
37. DW3-Sh. Suresh Kumar, Manager at Union Bank of India has brought the Statement of account pertaining to M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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defendant no. 1 for the period 01.05.2004 to 15.06.2004 which is Ex.DW3/1 and for the period 15.09.2004 to 15.10.2004 which is Ex.DW3/2.
38. DW4-Sh. Neeraj Kumar Jha, Official from Union Bank of India brought the authorisation letter in his favour- Ex.DW4/1. The duly stamped computer generated copy dt 19.11.2022 of the summoned record was exhibited as Ex.DW4/2 (already Ex.DW1/5). Authorization letter dt 07.01.2023 in his favour was marked as Ex.DW4/3. The witness had also brought the Certificate under the Banker's Book of Evidence Act r/w information technology Act in respect of computerized statement of advice, which was marked as Ex.DW4/4. He further deposed that Ex.DW1/5 dt 22.01.2011 (also exhibited as Ex.DW4/2 dt 19.11.2022) is duly certified copy which was issued by Union Bank of India, Overseas Branch, D-26/28, Connaught Place, New Delhi. He deposed that Ex.DW1/5 and Ex.DW4/2 are exactly same except the date as Ex.DW4/2 is advice print out taken out by him on 19.11.2022. He deposed that The transaction in question was Forex transaction and the same was done by Union Bank of India, Overseas Branch, D- 26/28, Connaught Place, New Delhi. He deposed that when the transaction was done, the name and address of the branch was Union Bank of India, D-26/28, Overseas Branch, Connaught Place, New Delhi and now the name and address of the said branch is Union Bank of India, Mid M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Corporate Delhi South, D-26/28, Connaught Place, New Delhi.
39. DW5 is Sh. Yashpal Arora, SWOA/Clerk, Union Bank of India, Gurugram Main Branch, Dayanand Colony, Bhim Nagar Chowk, Haryana. He had brought the authorization letter dt 07.01.2023 in his favour - Ex.DW5/1. He had brought the detailed transaction from the bank dt 27.09.2004, 06.10.2004, 27.05.2004 and 03.06.2004, the same are Ex.DW5/2. He had also brought the bank account statement of defendant from 01.05.2004 till 31.10.2004, the same is Ex.DW5/3. He also brought letter from the bank dt 07.01.2023 thereby mentioning that further detailed statement for entries dt 27.09.2004, 06.10.2004, 27.05.2004 and 03.06.2004 is not available as Forex Trade was done at MID Corporate at Delhi. The same is Ex.DW5/4. He deposed that as per Ex.DW5/4, remittance with respect to international transaction is done at MID Corporate Delhi Branch.
40. I have heard the arguments of both the sides and have carefully gone through the record of the case including the judgments cited on behalf of the parties. FINDING ON THE ISSUES.
41. Issue No. i). Whether the suit is barred by Limitation ? OPD It was argued by ld. counsel for defendant that the present suit is barred by limitation as per the provisions of M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Article 14 of the Limitation Act. It is submitted that Article 14 of the said Act provides for the limitation period of three years from the date of delivery of the goods in cases wherein no fixed period of credit is provided. It is argued that the last invoice for which the payment is alleged to be unpaid is dated 28.01.2004 Ex.PW1/4 as is also mentioned in para 7 of the plaint and even as per the case of plaintiff, no payment were made after 26.02.2004 and, therefore, three years if calculated from 28.01.2004 would expire on 28.01.2007, whereas the suit was filed in the year 2010.
42. It is further argued that even if the limitation period is calculated from the date of issuance of legal notice dt 01.03.2005, even then the limitation would expire on 01.03.2008. Ld. Counsel also refers to cross-examination of PW1-Marco Covilli dt 17.04.2015 and has argued that the said witness pleaded ignorance to any demand made by the plaintiff after 01.03.2005 for any sum of money and, therefore, no further cause of action can be deemed to have arisen after 01.03.2005.
43. Ld. counsel for defendant that further relied upon the judgments in XS Infosol Pvt. Ltd v. GLS Technologies pvt. Ltd (2018 SCC OnLine Del 6601) and BPL Ltd v. Hindustan Traders Co (2009 SCC OnLine Del 1336).
44. Per contra, It is submitted by Ld. Counsel for plaintiff that the suit is not barred by limitation as the defendants in their books of account continued to show the M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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amount as due and payable to the plaintiff. Ld. Counsel further argued that it has been specifically averred in para 9 of the plaint that the plaintiff has reasons to believe that the defendants have shown the name of plaintiff in the name of sundry creditors and have shown the amout due and payable to the plaintiff in their account books uptil 31.03.2008. It is submitted that the said fact is established by the cross-examination of DW1 conducted on 31.07.2019 wherein it was admitted that the amount were being shown as due till the year 2008 in the books of account and were subsequently written off. The relevant portion of the cross-examination of DW1 dt 31.07.2019 is reproduced hereunder:
"It is correct that the defendant have not initiated any proceedings or have filed any case with respect to the damages, compensation for losses as being stated in para 10 of Ex.DW1/A. It is wrong to suggest that the defendant is intentionally not producing the books of account of the relevant time period i.e 2003 to 2010 because the amounts payavle to the plaintiff were reflected in the said books. Vol. The amounts were being shown till the year 2008 and since nothing was being heard from the plaintiff, the said amount was written off in the books, thereafter, in the year 2008."
45. Ld. Counsel for plaintiff further argues that the defendant despite having the books of account in their power and possession intentionally failed to file the same alongwith W.S or to produce it at any subsequent stage and, therefore, adverse inference is to be drawn against the defendant as per the provisions of Section 119 of the Bharatiya Sakshya Adhiniyam, 2023.
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46. In this regard, Ld. Counsel has relied upon the cross-
examination of DW1 conducted on 06.06.2019 wherein it was admitted by DW1 that defendants used to maintain the books of account and tax records as per law but stated that records which were more than 7-10 years old, were destroyed or disposed off in raddi or junk. \ Relevant part of the said cross-examination dt 06.06.2019 is reproduced as under:
" ****** It is correct that M/s. Hydro Baths Ramco Marketing Pvt Ltd and Ramco Marketing Company maintains all books of accounts and tax recorded as per law......... Q. Can you produce the ledger account of the plaintiff company maintained with defendants and also other documents including the customs documents pertaining to the invoices in the present suit ?
A. As I remember correctly defendant does not keep the records for more than 7 to 10 years. (VOL: Which to the best of my knowledge is also the requirement of law)...."
The records which are more than seven to ten years old are either destroyed or disposed off in 'raddi'/junk".
47. It is further submitted that since it has been admitted that defendants have shown the name of plaintiff in his books of account uptil 31.03.2008 then as per the provisions of section 18 of Limitation Act, the limitation to file the present suit only expires on 31.03.2011 and since the suit was filed in June, 2010, the suit is well within limitation.
48. It is clear from the cross-examination of DW1 conducted on 31.07.2019 (supra), wherein it was voluntarity stated by the witness that the amounts were M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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shown in the books of account till 2008 and were subsequently written off, that till 2008, the defendants were acknowledging the dues of the plaintiff. Further, it has also been stated in Cross-examination of the said date that the amounts were subsequently written off which clearly shows that the amounts were being shown as due and payable as only in that eventuality any amount reflected in the Books of Accounts could be written off. Since the amounts were being shown till 2008 as due and payable, it would amount to acknowledgement of liability in terms of section 18 of the Limitation Act and, therefore, fresh period of limitation shall be computed from 2008. The limitation period when so computed would expire for the purposes of the present suit in the year 2011 and the present suit having been filed in the 2010, would be well within limitation.
49. Further even if the said account books have not been produced before the court, yet admission of the defendant in the cross-examination to this extent is sufficient enough to hold as above.
50. The judgment relied upon by Ld. Counsel for defendant are distinguishable on the facts of the present case as in the present case there is a clear acknowledgement as per section 18 of The Limitation Act, 1963.
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51. In view of the above, it is held that the suit is within the period of limitation. Hence the issue is decided against the defendant and in favour of the plaintiff.
52. Issue no. ii). Whether the Delhi Courts have no territorial jurisdiction to entertain and try this suit ?
OPD It is submitted by ld. counsel for defendant that this court does not have territorial jurisdiction as all the invoices Ex.PW1/3 to Ex.PW1/6 relied upon by the plaintiff mention the address of defendant no. 1 of Gurgaon. It is submitted that the goods were also supplied at Gurgaon and all the payments have been made from Gurgaon Office. It is further submitted that even defendant no. 2 resides in Gurgaon and also defendant no.2 and 3 work for gain in Gurgaon only. It is further submitted that even the bank account of defendant no.1 was in Gurgaon as would be evident from the statement of DW2-Sh. Praveen Kumar, Official from the Office of Deputy Excise and Taxation Commissioner and DW3-Sh. Suresh Kumar, Manager, Union Bank of India. Ld. Counsel argues that a perusal of the amended memo of parties, legal notice issued by the plaintiff, evidence affidavit of defendant no.2-Sh. Vineet Bhutani, Certificate of Registration of defendant no. 1-Ex.DW2/5, CST Registration Ex.DW2/1, Bank Account Statement of defendant of Union Bank of India Ex.DW5/5, Remittance Slips Ex.DW4/1 clearly shows that address of the defendant is only that of Gurgaon. It is thus M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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submitted that no part of cause of action arises in Delhi and hence this court does not have the jurisdiction.
53. It is further submitted that as per Explanation to section 20 of CPC, the suit can only be filed at Gurgaon as merely the presence of the office of defendant in Delhi would not confer jurisdiction upon the court as, as per the explanation of section 20 of CPC, if the cause of action arises at place where the subordinate office of defendant is located, then the suit can only be filed at such place.
Ld. Counsel for defendant has relied upon the following judgments in support of her contentions:
i). Indian Performing Rights Society Ltd v. Sanjay Dalia and Anr- (2015) 10 SCC 161
ii). Bella Goyal Proprietor of Ispat Sangrah (India) vs. VIIPL- MIPL JV (Jaipur)-CS (COMM) 1217/2018
iii). New Moga Transport Co. v. United India Insurance Co. Ltd - (2004) SCC 677
iv). ICICI Bank Ltd v. K.P. Murgesan-2015 SCC OnLine Del 13321
v). Patel Roadways Ltd v. Prasad Trading Co. (1991) 4 SCC 270
vi). A.B.C Laminart (P) Ltd vs. A.P. Agencies- (1989) 2 SCC 163
54. Per contra, it is submitted by Ld. Counsel for plaintiff that jurisdiction in the present suit is to be governed by section 20(a) of CPC and this jurisdiction is to be seen with reference to the time of commencement of the suit and if at the time of commencement of suit, the defendant can be shown to be carrying on business or personally working for gain at a particular place, the courts M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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at that place would have jurisdiction to try the suit. It is further submitted that Sh. Vineet Bhutani, defendant no.2 who was the sole proprietor of defendant no.1 was working for gain and doing business from M-47, Greater Kailash-II, New Delhi during the year 2009-2013. Thus this court would have jurisdiction as the suit was filed in 2010. It is further submitted that even defendant no. 3-M/s. Hydro Baths Ramco Marketing Pvt. Ltd which has taken over the business of defendant no.1, was carrying on its business from M-47, Greater Kailash-II, New Delhi at the time when the suit was filed i.e. in the year 2010.
55. As per section 20 CPC, a suit for recovery can be filed at a place either falling under clause (a) or (b) or (c) and as per the Explanation to Section 20, where the defendants is a corporation having a subordinate office at a place where cause of action arises, the defendant shall be deemed to carry on the business only at such place and not at the registered office.
56. The language of section 20(a) or (b) is very clear that the jurisdiction of the Court is to be seen with reference to "the time of commencement of the suit". Thus there is no ambiguity that while deciding the objection to jurisdiction, the court is to see whether at the time of commencement of the suit, the court had the jurisdiction or not.
M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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57. At the time of commencment of suit, there were only three defendants i.e. defendant no. 1- the Sole Proprietorship concern, defendant no. 2-Sh. Vineet Bhutani-Sole Proprietor of M/s. Ramco Marketing Company and defendant no.3 - Sh. Vishal Dutta, who now stands deleted from the array of parties. It is settled law that the Sole Proprietorship firm has no separate legal entity and the sole Proprietor is liable for the claims against the Proprietorship firm and there is no requirement of law to implead the sole proprietorship firm. Thus this court shall have the jurisdiction if defendant no. 2 is shown to have been carrying on business within the jurisdiction of this court at the time of commencement of this suit.
58. In the cross-examination of DW1-Sh. Vineet Bhutani (Sole Proprietor of defendant no.1 and Director of defendant no. 3) conducted on 05.12.2018, it was admitted by DW1 that the business of defendant no.1 which was started in 1999-2000 was started from the property M-47, Greater Kailash-II, New Delhi and the defendants left the property only in 2013. It was also stated that stock of M/s. Ramco Marketing Company were bought by M/s. Ramco Marketing Pvt. Ltd in around 2009 and in 2009 itself name of Ramco Marketing Pvt. Ltd was changed to Hydro Baths Ramco Marketing Pvt. Ltd. It was also stated that M/s. Hydro Baths Ramco Marketing Pvt. Ltd was tenant in the property bearing no. M-47, Greater Kailash-II, New M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Delhi. The relevant part of cross-examination dt 05.12.2018 is reproduced hereunder:
"As far as I remember, M/s Ramco Marketing Company started working in the year 1999-2000. The said company was my sole proprietorship of which I was the Sole Proprietor. The said company is not in existence as on date as it was closed so far as I remember in March 2009. We started business from the property bearing bearing no. M-47, Greater Kailash-I, New Delhi in the year 2009. As of today, we are not in possession of property bearing no. M-47, Greater Kailash-II, New Delhi. As far as I remember, we left property bearing no. M-47, Greater Kailash-II, New Delhi in the year 2013. M/s Hydrobaths Ramco Marketing Pvt. Ltd. was the tenant in the said property, owner of the same were three brothers of which one was namely Mr. Amarjeet Singh. The registered office of M/s Ramco Marketing Company is 19, Laxman Vihar, Daultabad Road, Gurgaon. As far as I remember, M/s Ramco Marketing Company since its inception has been working from 19, Laxman Vihar, Daultabad Road, Gurgaon being the registered office of M/s. Ramco Marketing Company. Vol. Since, it's about 18 years so far as I remember.
Q. When was Ramco Marketing Pvt. Ltd incorpated ? Ans. I do not remember the date and the month but it was incorporated in the year 2009. vol. Initially the company was incorporated as Ramco Marketing Pvt. Ltd and after a couple of months the name was changed to Hydrobaths Ramco Marketing Pvt. Ltd.
Q. Whether the sole proprietorship under the name and style of M/s. Ramco Marketing Company was in existence when Ramco Marketing Pvt. Ltd was incorporated as a company ?
Ans. It was around the same time. Vol. Infact the company incorporated as Ramco Marketing Pvt. Ltd bought over the stocks of the sole proprietorship concern under the name and style of M/s. Ramco Marketing Company and thereafter the sole proprietorship was closed."
59. Thus it is clear that at the time of institution of the suit in 2010, defendant no.1 and 2 were carrying on business from the above mentioned G.K. address (though a M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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proprietorship concern has no separate legal entity of its own).
60. As far as defendant no. 3 is concerned, it has also been established that the defendant no.3 had its registered office at M-47, Greater Kailash-II, New Delhi and was functioning from the said premises uptil 2013 as a tenant therein. There is nothing on record to show that at the time of filing of the suit or even uptil 2013 or even till date, the said company was functioning from any other address other than above mentioned address at M-47, Greater Kailash-II, New Delhi. Further Ex.DW1/X which is allegedly the certificate of registration of Sales Tax of defendant no. 3 filed by the defendants also does not inspire confidence as the said certificate states it to be valid from 18.11.2000 and on the said date, as per the case of the defendant M/s. Hydro Baths Ramco Marketing Pvt. Ltd was not even in existence and for the first time was incorporated in 2009. The said document does not even bear the name and designation of the officer authorising it.
61. The invoices Ex.PW1/3 to 1/6, the legal notice dt 01.03.2005, the bank account statements Ex.DW5/5 are all in the name of Defendant no. 1. Even the certificate of Incorporation of defendant no. 3-Ex.DW2/2 only mentions the G.K. address. Thus it is appears that till 2013, the defendant no.3 had no existence at any other place other than the G.K. address.
M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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62. Even qua the factum of service of defendant no. 3 at Gurgaon address, it would be important to take note of order dt 27.08.2013 passed by Hon'ble High Court of Delhi in the present matter wherein it was observed that the defendants were evading the service despite the fact that as per MOU the address of the office was that of M- 47, Greater Kailash-II, New Delhi. It was further observed that MOU filed by defendant no. 3 also in his W.S also stated the address of M-47, Greater Kailash-II, New Delhi. The Hon'ble Court further went to observe that neither it has been mentioned in the W/S filed by the defendants that the registered address of defendant no.3 is discontinued nor there were any submissions that there has been a change of the registered address of the company. It was held that service/despatch address of registered office is itself sufficient for presumption of service. Relevant part of the order is reproduced hereunder:
"Considering the totality of the facts and the fact that Defendant No 2 was served in his capacity of the proprietor as per the original set-up of the suit and in view of the fact that the very stand taken by Defendant No. 2 himself that MOU for merger took place some time in the year 2009, and that Defendant No. 2 is one of the Directors of M/s Hydro Baths Ramco Marketing Pvt. Ltd. transferee company, it was observed that they were avoiding service despite the fact that as per their very Memorandum of Understanding, the address of the registered office was M-47, GK-II Market, New Delhi, Defendant No 2 was directed to be present in person together with the proof registration at the address provided in the plaint.
Upon specific inquiries made by this court form Defendant no. 2 who is present in person today, he stated has that the company is functional at 86 IDO, Mehrauli Road, M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Gurgaon since 2009 and he is one of the directors. As regards, address of the registered office, it transpires that along with the written statement filed by Defendant No.4, Defendant No. 4 has also filed true copy of the Memorandum of Understanding disclosing the address of the registered office of M/s Hydro Baths Ramco Marketing Pvt. Ltd. as M-47, GK-IL. Market, New Delhi, the address originally mentioned by the plaintiff. There is no whisper in the written statement filed by Defendant No. 2 or Defendant No. 4 that the said address has discontinued to be the registered address of M/s Hydro Baths Ramco Marketing Pvt, Ltd., nor is there any response given when confronted with the above fact as well as the fact that no change of address of the registered office was even brought on record. Dispatch/service at the address of registered office, in itself sufficient for presumption of service.
Besides, it is inconceivable that the defendant no. 4 company did not have knowledge, specifically when defendant no. 1 is stated to have merged/taken over in 2009 and summons were accepted in the name of Defendant no. 1 and that since the defendant no. 2, the Director of Defendant no. 4, remained participating all through out.
As regards impleadment and address, it is stated that plaintiff has also filed amended Memo of Parties and has mentioned the address to be F-86, IDC. Mehrauli Road. Gurgaon. The same cannot come avoidable to the defendant, as it is only on their belated disclosure that the said address has been recorded."
63. From the above, it is clear that at the time of institution of the suit, all the defendants were carrying on the business from M-47, Greater Kailash-II, New Delhi. However, it is also required to be taken note that as per the provisions of section 20, the objection to the jurisdiction is only to be decided with reference to the time of commencement of the suit and in the present case at the time of institution of the suit, only defendant no. 1 and 2 were parties to the suit and the said defendants have M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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already been shown to have been carrying on business from M-47, Greater Kailash-II, New Delhi at the relevant point of time. Further, at the cost of repetition, it is clarified that defendant no.1 does not have any separate existence of its own and the jurisdiction would have to be seen with respect to defendant no.2 only, defendant no.3 not being a party at that time. However, even if the jurisdiction is to be seen with reference to defendant no.3 as well (which is not the intent of law) i.e.- section 20 CPC), yet it has already been held above that at the relevant time defendant no.3 was only functioning from the said address.
64. This court is consious of the interpretation of Explanation to section 20 CPC discussed in the various judgments of the Hon'ble Supreme Court, however, there arises no occasion for this court to discuss the applicability of the said judgment in the facts of the present case discussed above.
65. In view of the above, it is held that this court has territorial jurisdiction in the matter as per section 20 (a) of CPC. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
66. Issue no. iii). Whether the suit is without any cause of action ? OPD & Issue no. v). Whether the plaintiff is entitled to recover Euro 65,626.46 from the defendants ? OPP Since both these issues are interconnected, they are M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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dealt with together.
67. It is submitted by ld. counsel for plaintiff that it has been proved on record that goods were supplied by the plaintiff to defendant no.1, delivery of the goods were taken by the defendants and the invoices Ex. PW1/3 to Ex.PW1/6 were accordingly raised upon the defendants, which remained unpaid by the defendants.
68. It is argued that defendant no.2-Sh. Vineet Bhutani who was the sole Proprietor of defendant no.1 has admitted in the W.S that the goods were supplied to him, however, has taken a defence that some of the goods were of bad quality and the goods supplied were not ordered by the defendant but the plaintiff continued to supply the defective goods till March, 2004, without the order being placed by the defendant in this regard. It is argued that the defendants have also averred that the goods were not saleable in the Indian Market and are lying dead in the godown of the defendants. It is further argued that the defendants have also averred that the payment of the goods which were of good quality have already been made to the plaintiff and no payment remained outstanding against the defendants.
69. It is argued that the defendants have failed to prove and substantiate their averments by leadings any evidence oral or documentary. In fact, defendant no.2 in his evidence has admitted the receipt of the goods and the factum of taking delivery of the goods after getting it cleared from customs. It M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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is argued that even the fact of selling of the part of goods over a period of time has been admitted by the defendants in his evidence. It has also been admitted that the stocks of the remaining goods are still lying with them and some stock have got damaged over a period of time. It is argued that the defendant have miserably failed to show by leading evidence as to what quantity of goods was of good quality and what quantity of goods was of bad quality. He further argued that even admittedly the amount payable to the plaintiff have been shown as due and payable in the books of accounts of the defendant till March, 2008 which is contrary to the defence of the defendant that all payments were cleared and nothing remained due and payable to the plaintiff (refer para 44 above).
70. He submits that the plaintiff admits that the payment of Euros 19856 on 31.05.2004 against invoice no. 954340 & Euro 11940 on 01.10.2004 against invoice no. 114722 has been received by the plaintiff, however, the said amounts have already been adjusted in the accounts of the plaintiff. He further argues that amount of Euros 19856 reflected at page 20 of Ex.DW1/5 does not pertain to the invoices mentioned in para 7 of the plaint for which the present suit is filed but pertain to the invoice bearing no. 954340 which is not the subject matter of the present suit. It is argued that even if the case of the defendant is presumed to be true and the amount of Euros 11940 is also adjusted, the defendant at best would be M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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entitled to adjustment of Euro 8017.32 which is the balance amount claimed against invoice no. 114722 and the plaintiff would be entitled to the remaining claimed amount.
71. Per contra, it is argued by ld. counsel for defendant that defendant is not liable to pay any amount to the plaintiff as the goods supplied were defective and for good quality goods the defendant had made entire payment and nothing remains to be paid.
72. To substantiate her arguments that the entire payment has been made by the defendants, the Ld. Counsel has relied upon Ex.DW1/5, Ex.DW4/1 and Ex.DW4/2, which are the copies of the payment advice/proof of foreign remittance to the defendant issued by the Union Bank of India, Connaught Place, New Delhi.
73. Ld. Counsel further argued that at page 20 of Ex.DW1/5 which is also proved by DW4, payment of Eros 19856 have been reflected on 27.05.2004 as against invoice no. 954340 and payment of Euro 11940.17 is also shown to be credited to the account of the defendant on 27.09.2004 (page 19 of Ex.DW1/5) and further the amount of Euro 7580 is shown to be credited to the plaintiff's account on 27.09.2004 as per Ex.DW5/5 which is the statement of account of defendant no. 1. Ld. Counsel argues that it is the own case of the plaintiff that the last payment was received on 26.02.2004 and, therefore, the payments mentioned above which are clearly made after the said date are required to the adjusted M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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against the amounts claimed in the present suit as since no transaction took place between the parties after the said date, there was no occasion for the defendant to pay any further amounts to the plaintiff.
74. She further argues that it is the case of the plaintiff itself that credit note of Euro 3922 against invoice no. 114722 has been given to the defendants (para 7 of the plaint) and, therefore, even the said amount is to be adjusted against the claim of the plaintiff. Ld. Counsel argues that it is the case of the plaintiff that only four invoices remained unpaid and thus the total amount paid by defendant no.4 as detailed above, amounting to Euro 43028.17 is even more than the amount claimed by the plaintiff which is Euro 38154.92.
75. The counsel further relied upon the cross-examination of DW2 dt 31.07.2019 wherein the witness has stated that Euro 32000 has been paid to the plaintiff. It is argued that nothing is due and payable by the defendant as the accounts are already settled.
76. To substantiate her averment that the goods supplied were defective, ld. Counsel for defendant argued that it has been clearly admitted by PW1 in his cross-examination conducted on 15.04.2015 that the plaintiff had been informed about the supply of defective goods by defendant no.1. The relevant part of cross-examination dt 15.04.2015 is reproduced hereunder:
".....It is correct that Mr. Arrigo Martinelli was in constant touch M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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and was having correspondence with Mr. Vineet Bhutani (defendant no.2) regarding the defective goods supplied by plaintiff company to defendant no. 1. It is wrong to suggest that Mr. Arrigo Martinelli informed the officials of the plaintiff company that the entire goods dispatched to the defendant company was defective......".
77. Rebutting the contention of the Ld. Counsel for defendant that an amount of Euros 7580 has been transferred to plaintiff on 27.09.2004, it is submitted by Ld. Counsel for plaintiff that the said amount was never put to PW1, nor has been averred in the pleadings and has been raised for the first time during the course of arguments and hence cannot be considered. It is further submitted that no foreign remittance slip has been filed with respect to this payment as has been done with respect to the other two payments of Euros 19856 Dt 27.05.2004 and Euros 11940.17 dt 27.09.2004 by proving the remittance by means of Ex.DW1/5 (Ex.DW4/1 & Ex.DW4/2). It is further argued that Ex.DW1/5 has been shown qua specific invoices and it is to be shown by defendant that the said payment of Euros 7580 was against one of the invoices Ex.PW1/3 to Ex.PW1/6. Thus the Ld. Counsel argues that the said payment cannot be considered in deciding the claim of the plaintiff.
78. It is not disputed that the defendants admitted that the goods in question were supplied to the defendants and the delivery of the same has been taken by the defendant no.1 and 2, however, it has been alleged that the goods received were of bad quality qua which the plaintiff was duly intimated and M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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was supposed to replace /compensate for those goods. It has also been averred that the goods which were of good quality were used by the defendant and regarding the bad quality goods, intimation was given to the plaintiff who had assured to compensate for the loss of the same. It has also been averred that the goods supplied to the defendants were unilaterally supplied till March, 2004 without any orders being placed by the defendants in this regard. It has also been averred in the same breath that the defendant had removed the goods from warehouse as they was incurring heavy charges against freight, custom and duty etc and since then the goods were lying in the godown of the defendant.
79. The burden to prove all these facts was upon the defendants, however, a perusal of the evidence led by the defendants would show that not even an iota of evidence has been led to prove the said averments. There is no detail whatsoever either in the W/S or in the evidence as to the details of the goods which were of good quality and the ones of bad quality, as to how did the defendants value the goods of good quality and bad quality and under which of the invoices the goods received were defective. In fact W.S does not even set up a case that partial goods were defective and partial good quality goods were sold. It simply states that goods supplied were defective.
80. Further a suggestion has been put to PW1 in his cross-
examination conducted on 15.04.2015 that the entire goods M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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supplied were defective (refer para 76 above). The said suggestion was denied by PW1. However, no evidence has been led to prove the suggestion nor any evidence has been led to show that any written intimation was sent to the plaintiff complaining that the entire lot of goods supplied was of bad quality and promise was made by the plaintiff to replace the same. In the cross-examination dt 15.04.2015, PW1 had accepted the receipt of the information from the defendant about the dispatch of defective goods. In the same breath, it has also been stated by the said witness that the plaintiff company had issued a credit note to recover the damages suffered by the defendant no.1.
Relevant part of cross-examination of DW1 dt 15.04.2015, is reproduced hereunder:
".... I am aware that the defendant no. 1 had informed the plaintiff about the defective goods dispatched by the plaintiff company. The plaintiff company issued credit note to cover the damage suffered by defendant no.1. The plaintiff company had also informed defendant no.1 about the credit notes given by it by regular main and information might have been given by phone or email. It is wrong to suggest that defendant no. 1 company supplied the same at its own risk. I am not aware if the defective goods supplied by the plaintiff company are still lying in the godown of defendant no.1 company....."
81. The fact of issuance of said credit note has not been disputed by the defendant herein rather has been relied upon to claim adjustment of the said credit note in the balances claimed by the plaintiff. During the arguments, Ld. Counsel for defendants has submitted that the payment of Euro 3922 M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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shown against Invoice No. 114722 in para 7 of the plaint, is the amount of credit notice which requires to be adjusted in the amount claimed by the plaintiff.
82. Thus the only conclusion that can be drawn from this is that some of the goods were defective, however, the same were compensated for by the plaintiff by way of issuance of credit note and apart from the goods for which the said credit note was issued, there was no other defective goods supplied by the plaintiff.
83. Further, perusal of the cross-examination dt 15.04.2015 of PW1 would show that it was stated by PW1 that the goods were sold Ex-factory and there was no question of dispatching the goods by the plaintiff company. No evidence whatsoever has been led by the defendant to contradict the said statement of PW1. Thus it is clear that the defence of the defendant that the plaintiff was supplied the goods without any order from the defendant and the same were defective is baseless. The relevant part of cross-examination of PW1 dt 15.04.2015 in this regard is reproduced hereunder:
"Q. ......Is it correct that the plaintiff company had dispatched the goods to defendant no. 1 at Gurgaon ? Ans. The plaintiff company is selling its goods ex-factory hence, there is no question of dispatching the goods by the plaintiff company.....".
84. Even even no evidence whatsoever has been led to show that goods are lying in the godown of the defendant and what is the valuation of the said goods. No evidence has also been led to show as to how the other goods of bad quality M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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were disposed off and what value if any was received from disposal of the said goods. No evidence has been led to show that the goods are lying broken in the godown and if so what was the value of those goods. No evidence has been led to show that what was the value of the good quality goods that were sold.
85. As per section 42 of the Sales of Goods Act, 1930, the goods are deemed to be accepted if the buyer does any act in relation to the goods which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating the seller that he has rejected them.
Section 42 in The Sales of Goods Act, 1930 reads as under:
"42. Acceptance.--
The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
86. Since the goods in the present case were sold ex-
factory and the defendant had taken the delivery of the goods, had sold some part of the goods and kept the remaining in his godown for unreasonably long period and since no evidence has been led to show that apart from the goods for which credit note of Euro 3922 was issued, even other goods were defective, the defendant is deemed to M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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have accepted the goods and hence liable to pay for the same.
87. Since the court has held that the defendants are liable to pay for the goods supplied by the plaintiff, having failed to prove that the goods supplied were defective, this court shall now examine as to whether the defendants are liable to pay any amounts to the plaintiff or have paid the entire amounts due as averred.
88. While arguing the case, Ld. Counsel for defendant has also been argued that though the part of the goods supplied were of bad quality yet all the amount of invoices stands paid to the defendants as it is evident from the bank account statement Ex.DW5/5 (colly), Ex.DW4/1 & Ex.DW4/2.
89. The plaintiff herein have during the course of arguments as well as during cross-examination of PW1 (supra) have admitted the receipt of Euro 19856 against invoice no. 954350 on 31.05.2004 and Euros 11940.70 against invoice no. 114722 on 01.10.2004. However, it has been claimed that the said payments have already been adjusted by the plaintiff and the payment against Invoice no. 954340 is not to be considered as the same is not the subject of his claim.
90. Perusal of para 7 of the plaint and invoices filed on record Ex.PW1/3 to Ex.PW1/6 would show that the claim of the plaintiff is against specific invoices and, therefore, it is required to be shown by the defendant that the above M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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mentioned payments were released towards satisfaction of the said invoices. The defendant has in support of his defence proved Ex.DW1/5 / Ex.DW4/2 reflecting payment of Euros 11940.17 against invoice no. 114722 to the plaintiff on 01.10.2004. The said payment is corroborated by the statement of account of defendant Ex.DW5/5 (colly) and has unequivocally been admitted by the plaintiff. The plaintiff has failed to show that the said amount has already been adjusted. Thus in the considered opinion of this court, the defendant is entitled to the benefit of the adjustment of the said amount. However, the payment of Euros 19856 cannot be adjusted in the claim of the plaintiff as the said payment has been shown to have been made against invoice no. 954340 and not in invoice No. 945342, 600265, 114722 and 115921 Ex.PW1/3 to Ex.PW1/6 which are the subject matter of the present dispute. Since the claim of the plaintiff is qua specific invoices, the defendant had to prove the payment of those specific invoices only. The defendant has failed to show that any payment has been made against invoice no. 945342, 600265 and 115921 and hence plaintiff is entitled to the amounts claimed w.r.t the said invoices.
91. As regards the payment of Euro 7580 dt 27.09.2004 reflected in Ex.DW1/5, this court finds merit in the contention of the plaintiff that until and unless there is no foreign remittance slip, it cannot be said with certainty that any such payment was remitted to the account of the plaintiff herein.
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Further, if the said payment was made to the plaintiff, nothing prevented the defendant from proving its remittance as in the case of invoices no. 114722 and 954340. Also neither the said defence has been pleaded by the defendant nor the PW1 was confronted with the said payment in his cross-examination and the defendant cannot be allowed to put forward a new case in the arguments. It also deserves to be mentioned here that the defendant has also failed to show that the said payment was made to the plaintiff w.r.t invoices which are subject matter of the present claim. Hence, the defendants are not entitled to the adjustment of the said amount.
92. As regards the contention of the defendant that the said payments as shown by the defendant are required to be adjusted in the claim of the plaintiff as the same have been made after the date of last transaction between the parties i.e 26.02.2004 does not hold any merit as it was stated by the PW1 in his cross-examination conducted on 17.04.2015 that there were other invoices issued against the defendant apart from the invoices Ex.PW1/3 to Ex.PW1/6 and it has also been held by this court that the plaintiff has claimed the payments of specific invoices and the defendant is required to show that the payments were against those invoices.
93. Further a perusal of para 7 of the plaint would show that the plaintiff admits an amount of Euro 3922.85 to have been paid towards part payment of invoice no. 114722 dt 20.11.2003. Therefore, the said amount is also required to be M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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adjusted as the plaintiff has successfully established the payment of Euros 11940.17 in full and as per the plaintiff itself, an amount of Rs. 3922.85 is also required to be adjusted (the argument of Ld. Counsel for defendant that Euros 3922.85 is the amount of credit note was not rebutted by the plaintiff).
94. It is also important to mention here that if it is to be believed that there was no payment due from the defendants then there was no occasion for the defendant no. 1 and 2 to show the name of the plaintiff in its Books of Account till March, 2008 and to subsequently write it off. Relevant part of cross-examination of DW1 conducted on 31.07.2019 is reproduced hereunder:
".... Vol. The amount were being shown till the year 2008 and since nothing was being heard from the plaintiff, the said amount was written off in the books, thereafter, in the year 2008....."
95. Thus the plaintiff is entitled to recover from defendant no. 2 Euros 6695.52 against invoice no. 954342- Ex.PW1/3, Euros 15102.70 against invoice no.954342- Ex.PW1/4 and Euros 8339.40 against invoice no. 115921- Ex.PW1/6 after deduction of Euros 3922.85 admittedly received by the plaintiff from the defendants.
96. The plaintiff shall also be at liberty to recover the above amount from defendant no. 3 in the wake of their own admissions that the defendant no. 3 has taken over all the assets and liabilities of defendant no. 1 as on M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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31.03.2009.
97. This court deems it appropriate to mention at this stage that defendant no.1 being the sole proprietorship has no separate legal entity and it is only the sole proprietor who is liable for the debts and liabilities of the proprietorship firm. Further, serious discrepancies have been found on record as to the fact of incorporation of defendant no. 3 as the MOU dt 01.04.2009 on which the defendant has relied upon is between M/s. Hydro Baths Ramco Marketing Pvt. and Ramco Marketing Company, whereas as per the cross-examination of the DW1 conducted on 15.12.2018 it was stated by the witness that the Ramco Marketing Company Pvt. Ltd had brought the stocks Ramco Marketing Company whereafter the said sole proprietorship was closed and lateron the Ramco Marketing Company Pvt. Ltd changed its name to M/s. Hydro Baths Ramco Marketing Pvt. Ltd Thus, there was no occasion for an MOU to be entered between the sole proprietor and M/s. Hydro Baths Ramco Marketing Pvt. Ltd as by that time the proprietorship concern was already closed. Further Ex.DW1/X which is allegedly the certificate of registration of Sales Tax of M/s. Hydro Baths Ramco Marketing Pvt. Ltd filed by the defendants also does not inspire confidence as the said certificate states it to be valid from 18.11.2000 and on the said date, as per the case of the defendant M/s. Hydro Baths Ramco Marketing Pvt. Ltd M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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was not even in existence and for the first time was incorporated in 2009. The said document does not even bear the name and designation of the officer authorising it. Also there is no other document on record to show whether M/s. Hydro Baths Ramco Marketing Pvt. Ltd or M/s. Ramco Marketing Pvt. Ltd were ever connected to the proprietorship concern.
98. It is also important to note that the bank accounts filed on record by the defendant are all in the name of M/s. Ramco Marketing company and it was stated by DW3 in his evidence conducted on 09.12.2021 that the last transaction in the account was on 10.10.2019 and the account is still operational. This clearly shows that defendant no.1 has never ceased to exist and it appears that the plea of the taking over of assets and liabilities by M/s. Hydro Baths Ramco Marketing Pvt. Ltd has been taken by the defendant to avoid its liability by averring that the sole proprietorship has ceased to exist and no transactions took place with defendant no. 3.
99. In view of the above circumstances, this court has allowed the liberty to the plaintiff to execute its decree even against defendant no. 3.
100. Thus it is held that the plaintiff has established its cause of action against the defendants as well as the right to recover the above mentioned amount.
101. Accordingly, issue no. 3 is decided in favour of M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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plaintiff and against the defendants and issue no. 5 is partly decided in favour of plaintiff and against the defendants.
102. Issue no. iv). Whether the suit is bad for mis-joinder for defendant no. 4 ? OPD4 (Now OPD3).
It is argued by the Ld. Counsel for defendant that the impleadment of defendant no. 3 is nothing but mis-joinder of parties and the said defendant could not have been impleaded, as the plaintiff did not have any business dealings with defendant no.3. It is argued that defendant no.3 was incorporated in the year 2009 which is much later than the date of alleged business dealings. In this regard, Ld. Counsel has relied upon the cross-examination of DW2 conducted on 05.12.2018 wherein it was stated by the witness that the name of M/s. Ramco Marketing Pvt. Ltd was changed to M/s. Hydro Baths Ramco Marketing Pvt after a few months of the incorporation of M/s. Ramco Marketing Pvt. Ltd in 2009. It is argued that since defendant no. 3 was neither the necessary nor the proper party, the order of impleadment of defendant no. 3 was bad in law and is liable to be set aside.
103. Counsel further argued that there is nothing in the plaint alleging any liability against defendant no.3 and hence the suit is not maintainable against defendant no. 3.
104. Per contra, it is submitted by ld. counsel for defendants that defendant no. 3 was impleaded as defendant in the M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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present suit vide order dt 11.01.2012 which was passed by Hon'ble High Court of Delhi in pursuance of the averments in para 4 of the W.S of defendant no.2 wherein it was alleged that defendant no.1 has been taken over by defendant no.3 vide MOU dt 01.04.2009 with all its existing business and the existing liabilities and assets as on 31.03.2009 except immovable properties. It is argued that in view of the averments in the W/S of defendant no.2, defendant no.3 is jointly and severally liable with other defendants.
105. Perusal of the W/S of defendant no.2 clearly shows that it has been averred in the said W/S that the defendant no.3 i.e. M/s. Hydro Baths Ramco Marketing Pvt. has taken over the business assets and liabilities of defendant no.1 as per the audited Books of Account as on 31.03.2009. Further from the record it appears that vide order dt 11.01.2012, Hon'ble High Court of Delhi directed the impleadment of defendant no.3 herein (MOU dt 01.04.2009 was filed on record).
106. Further a perusal of the W.S of defendant no.3 would show that defendant no.3 does not deny the said merger of taking over of assets and liabilities of defendant no.1. Further, in the affidavit of evidence of DW2 (appearing as a witness for defendant no.3), it was deposed that no liabilities of the plaintiff company were taken over by defendant no.3 as there were no dues to be paid to the plaintiff. Relevant portion of the evidence of DW2 - Ex.DW2/A is reproduced hereinbelow.
M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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"3. ***It is stated that M/s. Hydro Baths Ramco Marketing Pvt. Ltd never took the liability of the plaintiff company as there were nil balances of plaintiff company as on 31.03.2009 in the books of Ramco Marketing Company.***"
107. Thus it is clear that defendant no.3 does not deny the taking over of the liabilities of defendant no.1 but only denies the liability towards the plaintiff on the ground that nothing was due to the plaintiff as on 31.03.2009. It is also important to note that the MOU dt 01.04.2009 has not been denied by any of the defendants, to the contrary, all the defendants have relied upon the same.
108. Perusal of the record also shows that it is the admitted position that defendant no.2 herein i.e. Sh. Vineet Bhutani was the sole proprietor of defendant no.1 and also one of the Directors of defendant no. 3 and thus it can be safely presumed that he had knowledge of all the business affairs of both the defendants. In this regard, it has also been stated in his cross-examination dt 31.07.2019 that he was looking after the day to day affairs of the said company alongwith another directors of the company. Thus any statement made by defendant no.2 in his W.S qua the merger with defendant no.3 can be safely relied upon and even otherwise, the same has not been denied by defendant no.3.
109. Since it is the case of the defendants himself that M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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defendant no.3 had taken over the assets and liabilities of defendant no.1, to no stretch of imagination, it could be said that defendant no.3 has been an improper party to the present suit. It is also important to mention here that it appears from the record that the order dt 11.01.2012 has never been challenged by the defendant and has thus attained finailty and it cannot be said at this stage that the order is liable to be set aside.
110. Further since it is the own case of defendants that the liabilities of defendant no.1 were taken over by defendant no.3, in my considered opinion, there was no need for the plaintiff to averr any liability against defendant no.3 in his plaint and it is sufficient if the plaintiff is able to prove his claims against defendant no.1 and 2 in which case defendant no. 3 shall be jointly and severally liable in view of their own statements.
111. The defendants cannot be allowed to take conflicting stands and to approbate and reprobate at the same time by first averring that defendant no.1 was taken over by defendant no.3 for the purposes of getting the delay in filing W.S condoned and then lateron objecting to the impleadment of defendant no.3 so as escape the liability. In this regard, conduct of defendants which has been discussed while adjudicating the issue of jurisdiction (supra) is also required to be taken note of.
112. Thus, in my considered opinion, defendant no.3 herein M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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has been properly impleaded as defendant no.3 though whether or not, the said defendant shall be jointly and severally liable alongwith defendant no. 1 and 2 is a separate question which shall be decided while dealing with issue no. 3, 5 and 6.
113. Even otherwise, it is also settled law that a suit shall not be liable to be dismissed for mis-joinder of parties and no suit shall be defeated by reason of the mis-joinder or non-joinder of parties (not being a necessary party), and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it (Order 1 Rule 9 r/w order 1 Rule 13 CPC r/w Section 99 CPC).
In view of the above, the said issue is decided in favour of the plaintiff and against the defendant.
114. Issue no. vi). Whether the plaintiff is entitled to interest, if so at what rate ? OPP The plaintiff has claimed pre suit, pendent lite and future interest @ 12% per annum. It is argued by Ld. Counsel for plaintiff that the interest of 12% p.a is the prevailing rate of interest for commercial transactions and is entitled to the same.
115. It is argued by Ld. Counsel for defendant the interest claimed is arbitrary. It is argued that clause 22 of invoices Ex.PW1/3 to Ex.PW1/6, mentions the rate of interest to be 5% per annum. It is argued that even in the cross-examination dt 15.04.2015, PW1 had admitted that the rate of 5% p.a was M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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agreed between the parties.
116. The plaintiff has failed to show as to how he is entitled to higher rate of interest than agreed with the defendant and mentioned in its own invoices. Since as per clause 22 of the invoices Ex.PW1/3 to Ex.PW1/6, the agreed rate of interest payable on delayed payment is 5% p.a., this court seems no reason to grant a higher rate of interest than agreed between the parties. Thus in view of the law settled by the Hon'ble Supreme Court of India in The Central Bank of India Vs. Ravindra & Ors. Decided on 18.10.2001 and in view of the provisions of Section 34 CPC, in my considered opinion, the plaintiff shall be entitled to pre suit interest and pendente lite interest @ 5% per annum from 01.10.2004 (i.e. the date of last payment by the defendant against invoice no. 114722) till today, on the principal amount adjudged in Issue No.5 above. However, the plaintiff shall be entitled to future interest @ 9% p.a from the date of decree till realization.
In view of the above, issue no.2 is decided partly in favour of the plaintiff and against the defendants.
117. Whether the suit has been instituted by the plaintiff through a duly Authorised Representative ?
Ld. Counsel for defendants during the course of arguments, argued that the present suit has not been instituted by a duly authorised person. However, no issue qua the said objection of the defendant was ever framed in M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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the suit. It was argued by ld. Counsel for defendants that once an objection has been raised in the W/S qua the authority of the AR of the plaintiff, it was either for the plaintiff to get an issue framed in this regard and was the duty of the court to do so.
118. It is pertinent to note that till the date of final arguments, no such objection to the issue was ever raised by the defendants nor any application/request was ever made for framing of additional issue. Even while arguing on this point, the counsel remained adament that either the plaintiff should have objected or the court should have framed a proper issue.
119. Needless to mention that it is also the duty of the parties to be vigilant about their case and to ensure that proper issues are framed in the matter qua the material facts and points of law. A party who sleeps over its own right would not be entitled to any assistance of the court. Yet since the arguments were heard on the point of authority of the representative of the plaintiff and were duly rebutted by counsel for plaintiff, this court deems it proper to adjudicate upon the same.
120. It was argued by Ld. Counsel for the defendants that POA Ex.PW1/2 in favour of AR of the plaintiff cannot be relied upon as no Board Resolution dt 27.06.2005 as mentioned in the said POA has been annexed with it. It was further argued that the said POA contains the M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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signatures of the persons designated as partners, whereas the plaintiff is a company and partners do not exists in a company. It has also been argued that the POA attached with the plaint authorises the authorised represented only to institute the suit against defendant no.1 which is not in existence any more and since the AR do not have any authority to institute the suit against defendant no. 3, the suit cannot be said to have been filed by a competent person. It has also been argued that Board Resolution authorising Mr. Marco Covilli has also not been placed on record and the documents filed with the evidence affidavit does not disclose any authority to institute the present suit.
Ld. Counsel has placed reliance upon the following judgments in support of her case:
i). Pan Resorts Limited v. H.H. Karhika Thirunal Lakshmi Bayl-2011 SCC OnLine Mad 1156
ii). State Bank of Travancore v. Kingston Computers (I) (P) Ltd- (2011) 11 SCC 524
iii). Nibro Ltd v. National Insurance Co. Ltd, 1990 SCC OnLine Del 65
iv). K.N. Sankaranarayanan vs. Shree Consultations and Services Pvt. Ltd-1994 SCC OnLine Mad 29
121. Per contra, it is aruged by Ld. Counsel for plaintiff that though an objection was taken by the defendants in its W/S yet the defendants never bothered to get any issue framed in this regard and hence the said objection is deemed to have been waived off. It is further argued that the order dt 17.05.2014 vide which the issues were framed M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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specifically mentions the words "with consent of parties"
and since the issues were framed with the consent of parties and no issue in this regard was got framed by the defendant, the objection to the authority of the AR is to be deemed to have been waived off. It is further pointed out that even the proposed issues filed by the defendants on record do not mention any such issue and thus it is clear that a frivolous objection was raised by the defendants, which was later on decided to be dropped.
122. It is argued that since no issue was framed on this aspect and the parties were not put to trial on the same, the defendant cannot be allowed to raise the issue at the time of final arguments. It is further argued that the plaintiff witnes had tendered the POA dt November, 2005 in the evidence Ex.PW1/2 to which no objection was raised by the defendant either to the mode of proof or to the admissibility of the said document. It is further argued that PW1 has stated in his cross-examination regarding issuance of POA Ex.PW1/2 and institution of the suit by the attorney holder on behalf of company in para 3 of his evidence affidavit Ex.PW1/A with respect to which the witness was not cross-examined and in fact no suggestion whatsoever regarding the POA was given to the said witness. It is argued that the testimony of the witness has thus gone unrebutted. Ld. Counsel has placed reliance upon the judgment of Union Bank of India v. Naresh M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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Kumar and Ors -AIR 1997 SC 3 wherein it was held that in the absence of any prior resolution or POA, the corporation can ratify the act of its officer subsequently. Such ratification can be express or implied and the court on the basis of the evidence on record and after taking into consideration all the circumstances of the case, established with regard to the conduct of the trial, can come to the conclusion that the corporation has ratified the act of signing of the pleadings of the officer. The counsel has laid special emphasis on the judgment wherein the Hon'ble Court has held that a substantative right should not be allowed to defeated on account of procedural irregularities which is curable.
123. In the present case, the present suit has been filed through Sh. Pankaj Sachdeva on the basis of POA Ex.PW1/2. The said POA is duly signed by Mr. Sassi Sergio and the signatures are not disputed. It has also not been disputed that no such person is associated with the plaintiff company. The said POA has been duly notorised and signed as well. Further, PW1 has also deposed in his evidence that the suit was filed through AR Sh. Pankaj Sachdeva and that he had been duly authorised vide POA of November, 2005. PW1 had also proved the signatures of Mr. Sassi Sergio on the said POA stating that he recognises the signatures of Mr. Sassi Sergio as he has seen him signing many documents in the company. Further, the said M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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POA dt November, 2005 was also exhibited by the witness as Ex.PW1/2 and no objection was raised to the exhibiting of the said document. Further, no cross-examination whatsoever has been done on the above aspect. Thus the said deposition remained unrebutted by the defendant. In my considered opinion, the said witness has proved through its cross-examination that the suit was instituted through a duly authorised POA and further the said act also stands ratified by the plaintiff company by authorising Mr. Marco Covilli who was duly authorised and in this regard, the extract of the minutes of Board of Directors Meeting of the company dt 18.11.2014 was placed on record as Ex.PW1/1, to which again no objection was raised by the defendant.
124. Thus even if it is presumed that the POA Ex.PW1/2 was not a valid POA yet the act of the plaintiff company authorising PW1 by way of Board Resolution dt 18th November, 2014, has rattified the act of Sh. Pankaj Sachdeva to institute the present suit.
125. Further, since at the time of leading evidence in 2015, Defendant no.3 has already been impleaded as a party, the act of ratification by the plaintiff company would also apply with respect to the said defendant. Thus in my considered opinion, it cannot be said that the suit has been instituted by a person who was not authorised by the plaintiff.
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126. In this regard, the relevant excerpt of the Judgment Union Bank of India v. Naresh Kumar (supra) is reproduced as under:
"10.... A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
11. The courts below could have held that Sh. L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Sh. L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27 (1)(b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Sh. L.K.Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Sh. L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim.
12. The Courts below having come to a conclusion that money had been taken by respondent no.1 and that respondent no.2 and husband of respondent no.3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016
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alleged on behalf of the respondents was one which was curable.
13. The court had to be satisfied that Sh. L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Sh. L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K. Rohatgi in signing the plaint and thereafter it continued with the suit....."
127. Thus it is held that the suit was instituted by the plaintiff through a duly authorized representative. In view of the above discussion, this court does not deem it necessary to discuss the judgments relied upon by the counsel for the defendants as the distinguishable from the facts of the present case, the present case being a case of ratification.
128. Relief:
In view of my findings on the above issues, the plaintiff is entitled to recover from defendant no.2 and 3 Euros 26214.77 (Euros 6695.52+Euros 15102.70+Euros 8339.40 - Euros 3922.85 = 26214.77) alongwith pre suit interest and pendente lite interest @ 5% per annum from 01.10.2004 till today and future interest @ 9% p.a from today till realization. The plaintiff shall also be entitled to costs of the suit.
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129. Decree sheet be drawn accordingly after payment of additional court fees by the plaintiff on the amount decreed after converting it into INR at the exchange rate notified by the RBI for today, which is available on the website of RBI.
130. File be consigned to Record Room.
Announced in open Court on 25.09.2024. GUNJAN Digitally signed by GUNJAN GUPTA GUPTA 17:34:24 +0530 Date: 2024.09.27 (GUNJAN GUPTA) District Judge-04/South-East, Saket Courts, New Delhi M/s. Emilcermica SPA vs. M/s. Ramco Marketing Company & Others CS DJ 9822/2016