Delhi District Court
M/S Perfetti Van Melle India Pvt. Ltd vs M/S A.P. Enterprise on 20 November, 2009
1
IN THE COURT OF SHRI D.C. ANAND
ADDITIONAL DISTRICT JUDGE (NORTH)-04 : DELHI
CS No. 246/2009
M/s Perfetti Van Melle India Pvt. Ltd.
registered office at 47th Milestone,
Delhi-Jaipur Highway, Manesar
Gurgaon 122 050
Branch office at
Moolchand Commercial Complex
A-17 2nd Floor Defence Colony, New Delhi
through its authorized representative
Mr. Nabor Prabha Kumar Toppo
......Plaintiff
Versus
M/s A.P. Enterprise
Shankar Dev Nagar
Ward No. 5, Morigaon, Assam
Mrs. Ranima Borah
Sole Proprietress of
M/s A.P. Enterprise
Shankar Dev Nagar
Ward No. 5, Morigaon, Assam
.......Defendants
J UD G M E N T
Tersely, the plaintiff pleaded that plaintiff is a
company duly incorporated under the provisions of
Companies Act 1956 having its registered office at 47th
Milestone, Delhi-Jaipur Highway, Manesar Gurgaon 122
050 and having one branch office at Moolchand
Commercial Complex, A-17 2nd Floor Defence Colony, New
2
Delhi. Mr. Nabor Prabha Kumar Toppo is working as
Incharge - Food Regulatory Affairs who is duly authorized
to sign, verify and execute the proceedings on behalf of the
plaintiff company.
The Plaintiff company is engaged in the
manufacturing, marketing and sale of toffees and other
confectionery items and defendant no. 1 and 2 are the
dealer/distributor for sale of confectionery items
manufactured and marketed by the plaintiff and in this
regard dealership agreement dated 17.3.2007 was also
executed between the plaintiff and the defendants. The
defendants purchased the goods on credit from the
plaintiff and issued cheques to the plaintiff against the
bills / invoices raised by the plaintiff. The details of the
invoices against which the goods were supplied to the
defendants are given below:
Sr. No. Invoices/ date Amount
1.791708111 dt. 12.1.2008 71,963/- 2. 791708172 dt. 21.1.2008 36,843/- 3. 791708229 dt. 29.1.2008 51,180/- 4. 791708407 dt. 14.2.2008 1,10,222/- 5. 791708452 dt. 21.2.2008 45,894/-
The defendant issued the 5 cheques in favour of the plaintiff towards the outstanding amount of the bills/ 3 invoices raised as above by the plaintiff with the assurance that the cheques issued by the defendants would be cleared and honoured on presentation. The details of the cheques given by the defendants to the plaintiff are as under :
Sr. No. Cheque& date Amount Drawn on
1. 024502 dt. 12.1.2008 71,963/- Canara Bank
2. 023619 dt. 21.1.08 36,843/- Same
3. 023625 dt. 29.1.08 51,180/- Same
4. 024503 dt. 14.2.2008 97,434/- Same
5. 024504 dt. 21.2.2008 45,894/- Same The above said cheques when presented by the plaintiff were returned back unpaid vide the returning memos dated 1.3.2008 with remarks Insufficient funds. On persistent request made by the plaintiff to the defendants to abide by the terms of the agreement between the parties, the defendants refused to pay the outstanding amount. After requests and reminders to the defendant the plaintiff was compelled to serve a legal notice U/s 138 of the Negotiable Instrument Act dated 25.4.2008. The defendants deliberately did not make the payment despite expiry of the statutory period of 30 days as mentioned in the provisions of The Negotiable Instruments Act. 4
The defendants are also liable to pay interest @ 18% per annum on the said amount 3,03,314/- for the period 31.03.2008 to 22.7.2008 which comes to Rs. 17,138/- and as such plaintiff has prayed for the decree of Rs. 3,20,452/- with pendentelite and future interest @ 18% per annum with quarterly rest from the date of filing of the suit till its realization with cost of the suit.
The Defendants failed to appear despite service of summons in terms of order dated 11.12.2008 and as such defendants were proceeded ex-parte on 11.12.2008.
In exparte evidence, the plaintiff filed an affidavit in evidence and examined Sh. Nabor Prabha Kumar Toppo as PW-1.
I have heard ld. counsel for the plaintiff and have perused the evidence and documents on record carefully.
The plaintiff has substantiated the averments of the plaint in toto in his affidavit Ex.PW1/A filed in evidence which was duly sworn in before the oath commissioner appointed by Hon'ble High Court.
Besides the plaintiff proved the power of 5 attorney in his favour as Ex. PW1/1. The original application form dated 17.2.2007 is proved as Ex. PW1/2. The original Distributor profile sheet and Survey form is proved as ex PW1/3. The affidavit of defendant no. 2 is proved as Ex. PW1/4. The original letter dated 17.3.2007 written on behalf of the defendants is proved as Ex. PW1/5. The forms 24 issued under the Assam Value Added Tax Rules 2005 in the name of defendant no. 1 are proved as Ex. PW1/6 and Ex. PW1/7. Ex. PW1/8 is the acknowledgment receipt and the Ex. PW1/9 is the statement of account of the defendant no. 1 for the period 1.2.2007 to 16.2.2007. Ex. PW1/10 is the original specimen signatures of the person authorized to receive the goods on behalf of the defendants. Ex. PW1/11 is the original appointment letter dated 19.3.2007 and Ex. PW1/12 is the original distribution agreement dated 17.3.2007. Ex. PW1/13 is proved as the Perfetti Distributor Evaluation Score. Ex. PW1/14 to Ex. PW1/18 are the certified copies of the invoices as mentioned above and certified copy of the cheques issued in respect of the invoices are proved as Ex. PW1/19 to Ex. PW1/23. Ex. PW1/24 to Ex. PW1/24 are the returned 6 memos dated 31.3.2008. Copy of the legal notice is proved as Ex. PW1/29 and the original postal receipts dated 26.4.2008 are proved as Ex. PW1/30 and PW1/31. The certified copy of the order dated 10.6.2008 passed in the complaint U/s 138 of the Negotiable Instrument Act is proved as Ex. PW1/32.
The uncontroverted, unchallenged and unrebutted piece of evidence filed by way of affidavit U/o 18 CPC as discussed above including the certified copy of the invoices Ex. PW1/14 to Ex. PW1/18 of which amount was paid by the five cheques Ex. PW1/19 to PW1/23 by the defendant and those cheques were returned dishonoured vide returning memos Ex. PW1/24 to PW1/28, I hold that defendants are liable to pay the cheques amount of Rs. 3,03,314/- which is the amount of the invoices of the goods supplied to the defendant by the plaintiff. Also considering that rate of interest as mentioned in the invoices on the amount unpaid is @ 18 per annum, the plaintiff is also held entitled to the amount of interest of Rs. 17,138/- as due interest for the period 31.3.2008 to. 22.7.2008 as also claimed by the plaintiff in the plaint.
7
The suit of the plaintiff is accordingly decreed for a sum of Rs. 3,20,452/- with pendentelite and future interest @ 12% per annum as per commercial rate available now a days and rate of interest as applicable in the nationalized banks for commercial transactions with cost of the suit. Decree sheet be drawn accordingly. File be consigned to record room.
Announced in open court . (D.C. ANAND)
on 20.11.2009 Addl. Distt. Judge (North)-04
Delhi
8
CS 246/09
20.11.09.
Present : Ld. counsel for the plaintiff Vide separate judgment dictated and announced, the suit of the plaintiff is decreed for a sum of Rs. 3,20,452/- with pendentelite and future interest @ 12% per annum as per commercial rate available now a days and rate of interest as applicable in the nationalized banks for commercial transactions with cost of the suit. Decree sheet be drawn accordingly. File be consigned to record room.
(D.C. ANAND) Addl. Distt. Judge (North)-
IV/Delhi/ 20.11.09