Delhi District Court
M/S. Kmg Solutions (I) Pvt. Ltd vs M/S. Vpn India on 9 September, 2015
IN THE COURT OF AASHISH GUPTA, CIVIL JUDGE
EAST, KARKARDOOMA COURTS, DELHI
Suit no.: 139/2013
Unique case ID no.: 02402C0 137412013
In the matter of :
M/s. KMG Solutions (I) Pvt. Ltd.
Through its authorized person
Sh. Aditya Dwivedi
office at 375, 1st floor, Main Road,
Ghazipur, Delhi110096.
........PLAINTIFF
Versus
M/s. VPN India
Through its Director/M.D./Proprietor/Partner
146A, Industrial Estate,
HSIDC, Sector59,
Ballabhgarh (Haryana).
......DEFENDANT
Date of Institution of suit : 03.05.2013.
Date of reserving the judgment : 09.09.2015.
Date of pronouncement of judgment : 09.09.2015.
JUDGMENT:
1. Plaintiff sues the Defendant for a decree of mandatory injunction Suit No. 139/13 KMG Solutions (I) Pvt. Ltd. V/s. M/s. VPN India Page 1 of 5 thereby directing the Defendant to issue CForms amounting to Rs.24,147/ pertaining for the year 200910. The Plaintiff claims to have sold some goods to the Defendant for a sum of Rs.2,29,274/ against bill no. EXC/108110 dated 17.06.2009. It is the case of the Plaintiff that the Defendant was liable to issue CForms for a sum of Rs.24,147/ to the Plaintiff failing which the Plaintiff will be liable to pay the said amount and also face penal proceedings from the concerned Sales Tax Department. It is the case of the Plaintiff that Defendant despite requests has failed to issue CForms and thus the present suit.
2. The Defendant despite service of summons failed to appear or file any written statement in this matter. He was proceeded exparte vide order dated 04.03.2014. Thereafter the Plaintiff produced one Mr. Ankit Sharma as PW1 and has placed on record his testimony by way of affidavit in evidence as Ex. PW1/A. He has also placed on record the following documents in support of his case which are as under:
Sl. No. Documents placed on record by the Plaintiff Exhibit nos. given Photocopy of certificate of incorporation of
1. Mark A Plaintiff company.
2. Photocopy of MOA of Plaintiff company. Mark B
3. Copy of board resolution. Mark C Suit No. 139/13 KMG Solutions (I) Pvt. Ltd. V/s. M/s. VPN India Page 2 of 5 Statement of accounts in the name of the
4. Defendant maintained by the Plaintiff Ex.PW1/4 company.
5. Legal notice dated 15.12.2012. Ex.PW1/5 6. Postal Receipts Ex.PW1/6 7. Copy of plaint Ex.PW1/7
3. Thereafter Plaintiff closed his evidence and final arguments were heard.
4. Final arguments heard. Record perused.
5. At the very outset, it is to be noted that the Plaintiff is seeking mandatory injunction against the Defendant on the basis of bills dated 17.06.2009. This is a suit for mandatory injunction which has been filed on 03.05.2013. It is the case of the Plaintiff that the Defendant did not issue FormC to the Plaintiff company qua the aforesaid bills dated 17.06.2009. A question arises as to whether the present suit has been filed within limitation. There is no specific period of limitation for a suit of mandatory injunction and as such the present suit shall be covered under article 113 of the Limitation Act, 1963. The said article describes a period of 03 years for filing of a suit. The period begins to run when the right to sue accrues in favour of the Plaintiff. In this case the bills which form the basis of the present suit are dated Suit No. 139/13 KMG Solutions (I) Pvt. Ltd. V/s. M/s. VPN India Page 3 of 5 17.06.2009. Thus the right to sue in this matter accrued in favour of the Plaintiff from 18.06.2009. The present suit has been filed on 03.05.2013 which is beyond the period of 03 years. Thus the suit of the Plaintiff is barred by time.
6. It was argued by the counsel for the Plaintiff that the CForms are usually issued after a lapse of sometime. There is no evidence on record to show as to when CForms were to be issued by the Defendant to the Plaintiff. Even if it is presumed that the CForms are issued after a lapse of time and in any case they were to be issued in the financial year 200910 then at the very least, the CForms should have been issued by the Defendant to the Plaintiff by 31.03.2010 (this being the closing date of financial year 200910). Even if the period of limitation is computed from 01.04.2010, the suit should have been filed on or before 31.03.2013. The present suit has been filed on 03.05.2013 and thus is barred by time.
7. Even otherwise the suit of the Plaintiff is based on statement of accounts Ex.PW1/4. The said document has been brought on record to show the sale of goods by the Plaintiff to the Defendant. The said document is not accompanied by a certificate u/s. 65 B of the Indian Evidence Act, 1872 and as such is not admissible in evidence and therefore cannot be read. Thus save and except the testimony of PW1, there is nothing on record to show that the C Suit No. 139/13 KMG Solutions (I) Pvt. Ltd. V/s. M/s. VPN India Page 4 of 5 Forms in this matter were not issued by the Defendant. PW1 Ankit Sharma was taken as authorized representative on behalf of the company only on 23.12.14. It is not clear from the record as to when he joined the Plaintiff company. In such circumstances, it cannot be said that Mr. Ankit Sharma was personally aware of factum of non supply of CForms by the Defendant to the Plaintiff. He does not say to have personal knowledge of the facts of the case. Thus based on his testimony it cannot be concluded that CForms were infact not supplied by the Defendant to the Plaintiff.
8. It is settled law that even in cases wherein the Defendant is exparte, Plaintiff still has to prove its case on merits. In my opinion, the suit of the Plaintiff is not only time barred but also is liable to fail on merits.
In view of the aforesaid facts and circumstances, suit is dismissed. Let a decree sheet be prepared in the aforesaid terms.
All pending applications, if any, are disposed off.
Announced in the Open AASHISH GUPTA
Court on 09th of September, 2015 Civil Judge/East
KKD Courts, Delhi
Suit No. 139/13 KMG Solutions (I) Pvt. Ltd. V/s. M/s. VPN India Page 5 of 5