Delhi District Court
M/S Sun Pharmaceutical Industries ... vs M/S Taha Pharma Des Produits ... on 22 May, 2025
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CS (COMM) No.: 319/2023
CNR No. DLND01-0049012023
IN THE MATTER OF:-
M/S SUN PHARMACEUTICAL INDUSTRIES LTD.
THROUGH ITS AUTHORIZED REPRESENTATIVE
HAVING ITS REGISTERED OFFICE AT:
SPARC, TANDALJA, VADODARA- 390012, GUJARAT
CORPORATE OFFICE AT:
SUN HOUSE, CST NO. 201 B/1,
WESTERN EXPRESS HIGHWAY,
GOREGAON (EAST), MUMBAI,
MAHARASHTRA-400063.
...... PLAINTIFF
VERSUS
M/S TAHA PHARMA DES PRODUITS PHARMACUTIQUES
RESIDENCE TUNIS CARTHAGE
BLOC C AP5 BORJ EL BACCOUCHE
ARIANA 2027 TUNISIE.
...... DEFENDANT
Date of Institution of suit : 24.05.2023
Date of Reserving Judgment : 22.05.2025
Date of Pronouncement of Judgment : 22.05.2025
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit for recovery of USD 18,750/- i.e. INR15,38,005.31Paise along with interest and costs, filed by plaintiff against the defendant.
BRIEF FACTS OF THE CASE:
CS (Comm.): No. 319/2023 Page 1 of 132. The case of the plaintiff, as culled out from the plaint and the documents filed therewith, is as under:-
(i.) The plaintiff, which is stated to be a company duly registered under the laws of India and having its registered office at SPARC, 23 Tandalja, Vadodara- 390012, Gujarat and its corporate office at Sun House, CST no. 201 B/1, Western Express Highway, Goregaon (East), Mumbai, Maharashtra-
400063, is engaged in the business of
manufacturing and supplying pharmaceutical
products across the globe. The present suit has been filed through its authorized representative Mr. Amit Aggarwal, who is duly authorized, vide Specific Power of Attorney dated 05th April 2023.
(ii.) The defendant, which is also stated to be a pharmaceutical laboratory based in Tunisia, having its office at Residence Tunis Carthage BLOC C AP5 BORJ EL BACCOUCHE ARIANA 2027 TUNISIE, is in the business of manufacturing medicines for human use with new generics and essential medicines.
(iii.) It is the case of the plaintiff that it was into the business dealings with the defendant for supplying its products and the defendant used to place its Purchase Orders from time to time to buy the pharmaceutical products. Since very beginning, the defendant was not prompt in making the payments against the invoices.On 28.01.2019, the defendant CS (Comm.): No. 319/2023 Page 2 of 13 had placed an order for supply of 50 "VALSARTAN" for a sum of USD 18,750,vide P.O. No. PO190152 followed by another P.O. No. PO190057 on 01.11.2019 for supply of 50 "VALSARTAN" for a sum of USD 18,750. Pursuant thereto. The plaintiff loaded the goods for export at International Cargo Terminal IGI Airport, New Delhi. The ordered goods were duly delivered to the defendant and invoices bearing nos.
7000025684 and 7000025685 both dated 01.02.2019, for a sum of USD 18,750 each, were raised.
(iv.) It is further the case of the plaintiff that the defendant failed to clear the above-mentioned invoices along with another previously due invoice bearing no. 7000028281 in due time, despite repeated requests made by the plaintiff. On its repeated requests, the defendant issued a letter dated 03.03.2020, whereby, it undertook to clear the above-mentioned due invoices.
(v.) It is further the case of the plaintiff that the defendant, through its e-mail dated 27.02.2020, had assured that out of the total outstanding of USD 45,000, it will make part payment or part transfer of USD 7,500 within a week and remaining payment shall be made in two parts in the next two months. However, despite specific assurances, it had only made part payment of USD 7,500 on 13.07.2020 against the total outstanding of USD 45,000, CS (Comm.): No. 319/2023 Page 3 of 13 thereby leaving an admitted outstanding of USD 37,500.
(vi.) It is averred that the plaintiff, being cornered by the delayed tactics of defendant by wrongfully and illegally withholding the admitted outstanding, sought to issue legal notice dated 24.02.2021 through its counsel and demanded from it to make full payment against the outstanding dues at the earliest. The legal notice dated 24.02.2021 was duly served upon the defendant through email and courier. Subsequent to receipt of said notice dated 24.02.2021, the defendant made further part payment of USD 18,750 on 05.10.2021, out of total outstanding of USD 37,500. Accordingly, a balance amount of USD 18,750 remained due and payable by it. It is further averred that the defendant had been assuring payment of the said outstanding amount upon follow-ups, but the same remains due till date.
(vii.) It is further averred that the plaintiff filed for Pre-
Institution Mediation as per the provisions of Commercial Courts Act 2015 before the District Legal Service Authority (DLSA), South-West on 12.01.2023. However, the defendant did not appear in the said proceedings and consequently, Non Starter Report was issued by the concerned Authority. Thereafter, the present suit came to be instituted.
CS (Comm.): No. 319/2023 Page 4 of 133. At this juncture, it is important to note that initially, the present suit was filed as summary suit under Order XXXVII CPC. However, later on, Ld. Counsel of plaintiff made a statement that the present suit may be treated as an ordinary commercial suit.
4. Accordingly, summons of the suit were issued to the defendant. The defendant was duly served with the summons of the suit through e-mail on 05.04.2024. However, the defendant failed to appear despite service and consequently, was proceeded against ex-parte, vide order dated 06.07.2024 passed by this Court.
5. In support of its case, the plaintiff has examined one witness i.e., its AR namely Sh. Amit Aggarwal, as PW1, who has deposed on the lines of the averments made in the plaint.He also relied upon/proved the following documents:-
Srl.no Document/Particulars Exhibit(s)
1. Power of Attorney dated Ex. PW1/1 05.04.2023.
2. Copy of PO nos. PO190152 dated Ex. PW1/2 28.01.2019 and PO190157 dated (Colly) 01.11.2019.
3. Invoice bearing no. 7000025684 Ex. PW1/3 and 7000025685. (Colly)
4. Copy of letter dated 03.03.2020. Ex. PW1/4
5. Printout of defendant's e-mail Ex. PW1/5 dated 27.02.2020.
6. Office copy of legal notice dated Ex. PW1/6 24.02.2021.7. Courier receipt. Ex. PW1/7
8. Copy of tracking report of DHL. Ex. PW1/8
9. Printout of e-mail showing Ex. PW1/9 service of notice through e-mail.CS (Comm.): No. 319/2023 Page 5 of 13
Srl.no Document/Particulars Exhibit(s)
10. Copy of ledger maintained by the Ex. PW1/10 plaintiff reflecting dues of defendants.
11. Copy of Non Starter Report dated Ex. PW 1/11 04.03.2023.
12. Affidavit under Order XI Rule 6 Ex. PW1/12 CPC.
13. Certificate under Section 63 of Ex. PW 1/13 The Bharatiya Sakshya Adhiniyam.
6. At this juncture, it may be noted that an application under Order XVIII Rule 17 CPC for recalling of PW1 Sh. Aamit Aggarwal to prove the relevant documents showing the exchange rate of US Dollar in terms of INR, as was prevalent at the time of filing of the present suit, was filed on behalf of plaintiff. Vide order dated 15.04.2025, the said application of plaintiff was allowed and PW1Sh. Aamit Aggarwal tendered his additional affidavit in evidence (Ex. PW1/B), wherein he has relied upon the relevant documents i.e. Screenshot of official website of Reserve Bank of India, showing the exchange rate from March, 2003 to May, 2023.
7. I have heard Sh. Shyam Kumar, Advocate for the plaintiff.
I have also gone through the material available on record, including the plaint and the evidence, oral as well as documentary, led from the side of the plaintiff.
LIMITATION:
8. Firstly, I shall deal with the issue as to whether or not the present suit is instituted within the prescribed period of limitation. In this regard, while referring to the relevant CS (Comm.): No. 319/2023 Page 6 of 13 documents, Ld. Counsel of the plaintiff submitted that the suit is well within the period of limitation as upon receipt of legal demand notice dated 24.02.2021, part payment was made by defendant on 05.10.2021.Therefore, it is claimed that since the suit was filed on 24.05.2023, the same is well within the period of limitation.
9. This is a suit for recovery of money and limitation is 3 years from the date when the cause of action arises. As per invoices issued by plaintiff upon defendant [Ex. PW1/3 (Colly)], which are duly proved by PW1, the plaintiff had provided goods to the defendant from time to time.The ledger (Ex. PW1/10) maintained by the plaintiff reflects that part payment was made by defendant on 05.10.2021. Since, the present suit was filed on 24.05.2023, therefore, the Court is in agreement with Ld. Counsel for the plaintiff that the present suit is within the prescribed period of limitation.
JURISDICTION:
10. Ld. Counsel of plaintiff submitted that this Court has territorial jurisdiction to entertain and try the present suit in view of provisions of Section 20 (c) of CPC as material part of the cause of action has arisen within the territorial jurisdiction of this Court, since the goods were exported/supplied by plaintiff to the defendant from Indira Gandhi International Airport, New Delhi, which is within the territorial jurisdiction of this Court. He further submitted that Para nos. 7 and 20 of the plaint itself contain the facts that the goods were delivered via air cargo and the port of loading is stated to be Delhi, and CS (Comm.): No. 319/2023 Page 7 of 13 therefore, whole or part cause of action arose within the territorial jurisdiction of this Court. He, therefore, submitted that this Court has got territorial jurisdiction to entertain and try the present suit.
11. It is the specific case of the plaintiff company, as mentioned in Para nos. 7 and 20 of the plaint that the goods were exported/supplied by it to the defendant from Indira Gandhi International Airport, New Delhi. Further, invoices issued by plaintiff upon defendant, clearly stipulates about the mode of transportation and the place from where the goods were to be exported. As rightly submitted by Ld. Counsel of the plaintiff that the act of exportation forms an integral and material part of the transaction and thus, constitutes part of cause of action. Further, the PW1 has also deposed on the identical lines during his chief examination by way of affidavit (Ex. PW1/A). As already noted above, the entire testimony of said witness has gone unchallenged and un-rebutted from the side of defendant, which preferred not to cross examine the said witness examined on behalf of plaintiff company. Instead, the defendant chose not to appear and preferred to be proceeded against ex-parte, on 03.10.2024. Hence, this Court has territorial jurisdiction to adjudicate the dispute involved in the present suit.
12. Since the suit amount is above specified value i.e. Rs.3 lacs, as prescribed under the Commercial Courts Act, 2015, the Court has also pecuniary jurisdiction to adjudicate the suit.
CS (Comm.): No. 319/2023 Page 8 of 13ENTITLEMENT:
13. Ld. Counsel of plaintiff has argued that the entire testimony of PW-1 has remained unchallenged and un- rebutted from the side of defendant and therefore, the plaintiff is entitled to the decree, as prayed for. He also referred to the relevant documents Ex. PW1/1 to Ex. PW1/14, in order to bring home his point that these documents clearly prove that the suit amount of Rs.15,38,005.31Paise was due towards the defendant at the time of filing of the suit. He, therefore, prayed that the suit may be decreed.
14. As already noted above, there is no challenge to the case of the plaintiff from the side of defendant, which preferred not to appear and contest the present suit despite being duly served. The averment made by PW1 on oath is duly supported by the relevant documents Ex. PW1/1 to Ex. PW1/14, as already referred to herein above. Even otherwise, nothing contrary to the case of plaintiff has been brought on record. Hence, there is no reason to disbelieve his testimony made on oath. Moreover, there is an unequivocal, unconditional and unambiguous admission on the part of the defendant by way of an email dated 27- 02-2020(Ex. PW1/5), as also through letter dated 03-03- 2020 (Ex. PW1/4), wherein, the defendant is found to have accepted its liability towards the invoice in question being unpaid, with assurance to pay the due amount.
15. In the cited case titled as " Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi", reported as 1959 CS (Comm.): No. 319/2023 Page 9 of 13 SCC OnLine SC 54, Hon'ble Apex Court has has held that admissions are substantive evidence, they are the best evidence that an opposing party can rely upon.
16. In another case titled as "M/s Hindustan Pencils Pvt. Ltd.
vs. Anand Kumar Bajaj & Ors", reported as 2014 SCC OnLine Del 6505, the Hon'ble Delhi High Court has held as under:-
"None appeared on behalf of the defendants despite service and they were proceeded ex-parte. Adverse inference is to be drawn against the defendants for not appearing and contesting the claim of the plaintiff."
17. Similarly, in another case titled as "Sushma Berlia & Ors.
vs. Kamal Kumar & Ors.", bearing CS (OS) 1097/2009 decided on 18.12.2014, the Hon'ble Delhi High Court has held as under:-
"Testimony of PW-1 has remained unchallenged and unrebutted. Adverse inference is to be drawn against the defendants for not contesting the suit on adjourned date and remaining exparte. There are no sound reasons to disbelieve the positive uncontroverted testimony of PW-1."
18. In another case titled as "Iqbal Basith and Others vs. N. Subbalakshmi and Others.", reported as (2021) 2 SCC 718, the Hon'ble Apex Court has reaffirmed that failure to entire the witness box or face cross-examination justified drawing an adverse presumption against such party under the Evidence Act.
19. From the unchallenged and uncontroverted testimony of PW-1, coupled with the documents proved during trial, it is duly established on record that the plaintiff had provided goods to the defendant as per its requirements and had CS (Comm.): No. 319/2023 Page 10 of 13 raised invoice and despite having availed the services against said invoices, the defendant failed and neglected to pay the balance outstanding amount of Rs.15,38,005.31 Paise. Therefore, the Court is of the view that the plaintiff is entitled to recover the said amount from the defendant.
INTEREST:
20. Ld. counsel of the plaintiff has argued that as per general market practice, the defendant is liable to pay interest @ 18% per annum on the delayed payment. However, it is fairly conceded that there is no express agreement between the parties as regards payment of interest in case of delayed payment and also that no cogent or positive evidence is led by plaintiff during trial to prove its entitlement to recover interest at the said rate.
21. Order VII Rule 2A of Code of Civil Procedure (hereinafter referred as CPC) in respect of a commercial dispute of a specified value was brought in the statute by way of amendment in respect of the requirements of pleadings, where the interest is claimed by the plaintiff.
22. Section 34 CPC provides that where the liability in relation to the sum so adjudged, had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions.
23. Therefore, considering all the facts and circumstances of CS (Comm.): No. 319/2023 Page 11 of 13 the case, the Court is of the opinion that the claim @18% per annum is on higher side. Interest of justice would be met by awarding interest @ 12% per annum, towards pre- suit interest, as also from the date of filing of the suit till the date of its realization. It is so directed accordingly.
24. Although, the plaintiff has claimed pre-suit interest @ 18% p.a. on principal outstanding amount of Rs.15,38,005.31Paise w.e.f., 01.02.2019 till date, however, the plaintiff has not paid any Court Fees on the amount so claimed on account of pre-suit interest becoming due till the date of filing of the suit. Accordingly, the plaintiff is hereby directed to pay the deficient Court Fees on such amount within four weeks from the date of this judgment. It is so ordered accordingly.
RELIEF:
25. In the light of the aforesaid discussion, Court is of the view that the plaintiff has been able to prove its case on the basis of preponderance of probability. Thus, the suit is decreed in favour of the plaintiff and against the defendant and the following reliefs are granted:-
(i.) The plaintiff is entitled to recover Rs.
15,38,005.31Paise (Rupees Fifteen Lacs, Thirty Eight Thousand, Five and Thirty One Paisa only);
(ii.) Pre-suit is awarded @ 12 % per annum from the date of invoice till filing of the suit subject to payment of the deficient court fees thereupon by the plaintiff, in terms of directions contained in CS (Comm.): No. 319/2023 Page 12 of 13 para no. 24 of the judgment;
(iii.) Pendent-lite and future interest is awarded @ 12% per annum from the date of judgment till the date of its realization; and (iv.) Cost of the suit is also awarded in favour of the plaintiff.
26. Decree sheet is directed to be prepared accordingly, subject to payment of deficient Court Fee in terms of para no. 24 of this judgment.
27. File be consigned to Record Room, after due compliance.
Announced in the Open Court Digitally signed on this 22nd Day of May, 2025 VIDYA by VIDYA PRAKASH PRAKASH Date: 2025.05.22 17:27:07 +0530 (VIDYA PRAKASH) DISTRICT JUDGE (COMMERCIAL COURT)-02 PATIALA HOUSE COURTS, NEW DELHI CS (Comm.): No. 319/2023 Page 13 of 13