Delhi District Court
M/S Inox Decor Pvt. Ltd vs Shri Sharad Chauhan on 15 October, 2022
IN THE COURT OF SHRI PANKAJ GUPTA:
DISTRICT JUDGE, (S/W) (COMMERCIAL COURT)-01,
DWARKA COURTS : DELHI.
CS (COMM) NO.66/2018
CNR No. DLSW0101208942018
In the matter of :
M/s Inox Decor Pvt. Ltd.
Having its Office at B1-1/2,
Main Najafgarh Road,
Janak Puri, New Delhi-58,
Through its Sales Manager
Shri Rajeev Ghai
...........PLAINTIFF
versus
Shri Sharad Chauhan
Proprietor of
M/s Esskay Wood & Allied Industry
At B-4, Govt. Industrial Estate,
Patel Nagar, Dehradun-248001
Uttarakhand.
...........DEFENDANT
Date of Institution : 22.12.2018
Date when the case
reserved for Judgment : 15.10.2022
Date of Judgment : 15.10.2022
JUDGMENT
1. The plaintiff filed the present suit for recovery of Rs. 17,88,082/- along with 24% p.a. from the date of filing the suit till realization of money. Initially, the present suit was marked to the court of ld. Additional District Judge-02, M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 1 of 8 CS Comm No.66/18 Dwarka Courts, Delhi which proceeded with the matter. Subsequently, on constitution of the Designated Commercial Courts at the District level, the suit was transferred to this court and was firstly taken up for hearing by ld. Predecessor of this court on 12.12.2019.
2. In the plaint, it is stated that the plaintiff is engaged in the wholesale business of hardware and kitchen fittings under the name and style of "M/s. Inox Decor Pvt. Ltd.". Sh. Rajeev Ghai, Sales Manager is duly authorized to file, sign, verify, institute the present suit on behalf of the plaintiff. It is also stated that the defendant approached the plaintiff at Delhi for the purchase of the hardware and other kitchen fittings (the goods) and placed the orders for the same. Accordingly, the plaintiff supplied the goods and raised the invoices from time to time. The defendant accepted the invoices and the goods to its satisfaction. The plaintiff had been maintaining the current account in its ordinary course of business. As on 31.03.2018, Rs. 17,88,082/- was outstanding against the defendant. To discharge its liability, the defendant had issued the cheque bearing no. 000132 dated 29.09.2015 drawn on Bank of Baroda, Patel Nagar, Saharanpur, Dehradun for Rs. 13,76,065/- in favour of the plaintiff. However, the said cheque was got dishonored on presentation. Left with no option, on 18.11.2015, the plaintiff sent the legal notice to the defendant calling upon him to pay the outstanding amount but of no use. Hence, the present suit.
3. Notice of the suit was served upon the defendant through publication. However, despite service, the M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 2 of 8 CS Comm No.66/18 defendant failed to appear before this court. As per record, the defendant has also not filed the written statement (WS) despite given opportunities. Hence, the right of the defendant to file the WS was closed by the ld. Predecessor of this court on 05.10.2021.
4. To prove its case, the plaintiff has examined its authorized representative Sh. Rajeev Ghai as PW-1 and his affidavit in evidence is Ex.PW1/A. He relied upon the following documents:-
(i) Attested copy of Board Resolution dated 27.11.2018 Ex.PW1/1.
(ii) Carbon copy of invoice dated 08.05.2015 Ex.PW1/2.
(iii) Carbon copy of invoice dated 19.05.2015 Ex.PW1/3.
(iv) VAT form dated 08.05.2015 Ex.PW1/4.
(v) Computer generated copy of ledger, Ex.PW1/5.
(vi) Computer generated copy of ledger for C-Form, Ex.PW1/6.
(vii) Computer generated copy of calculation sheet Ex.PW1/7.
5. I have heard the learned counsel for the plaintiff and have perused the material available on record.
6. In nutshell, case of the plaintiff is that it is engaged in the business of the hardware and kitchen fittings material; the defendant approached it to purchase the goods and placed the orders for the same; and it supplied the goods to the defendant and raised the invoices from time to time. M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 3 of 8 CS Comm No.66/18 However, the defendant avoided to make the payment. It maintained the current account in its ordinary course of its business. To discharge its liability, the defendant had issued the cheque no. 000132 dated 29.09.2015 drawn on Bank of Baroda, Saharanpur for Rs. 13,76,065/-. However, the said cheque was dishonored for the reason "funds insufficient". Consequently, the plaintiff issued the legal notice dated 18.12.2015. Despite that, the defendant had neither paid the cheque amount nor sent the reply. Accordingly, the plaintiff initiated the proceedings under section 138 Negotiable Instruments Act, 1880 (NI Act) before the competent court. In the first week of November 2018, the defendant refused to pay the outstanding dues of the plaintiff. Left with no option, the plaintiff filed the present suit on 21.12.2018.
7. In the present case, the question arises as to whether the suit of the plaintiff is within the period of limitation. The question also arises whether the plaintiff is entitled to amount as claimed in the plaint.
8. In the plaint, the plaintiff has neither mentioned the details of the purchase orders placed by the defendant nor has mentioned the details of the invoices raised by it against the goods supplied by it to the defendant. However, the plaintiff along with the plaint has filed 5 invoices only i.e. 03 invoices number IDPL-11658 all dated 13.04.2015 Ex.PW1/2 and 02 invoices number IDPL-11811 both dated 19.05.2015 Ex.PW1/3. As such, it can be held that the plaintiff supplied the goods to the defendant between 13.04.2015 and 19.05.2015 vide the said 5 invoices.
M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 4 of 8 CS Comm No.66/18
9. In the present case, the plaintiff has examined PW1 who relied upon copies of delivery challans dated 08.05.2015 Mark A and dated 03.06.2015 Mark B, copy of the cheque dated 29.09.2015 Mark C and copy of the legal notice dated 18.11.2015 Mark D. However, PW1 has neither tendered the original of the documents Mark A to Mark D nor has led the secondary evidence to prove the said documents. Hence, the documents Mark A to Mark D are not admissible in evidence.
10. PW1 though deposed that the defendant issued the cheque no. 000132 dated 29.09.2015 Mark C but he has failed to prove the same as per law in his testimony. Further, the plaintiff has neither filed nor proved any document on record to show that on presentation, the said cheque was dishonored for the reason "funds insufficient". According to PW1, the plaintiff issued a demand notice dated 18.11.2015 Mark D upon the defendant but PW1 has also not proved the same as per law in his testimony.
11. In view of the foregoing discussions, it can be held that the plaintiff has failed to prove the issuance of the cheque no. 000132 dated 29.06.2015 drawn on Bank of Baroda, Saharanpur by the defendant to it towards discharge of its liability and its dishonor for the reason "Insufficient funds". The plaintiff has also failed to prove that it got issued the demand notice dated 18.11.2015 and despite receipt of the same, the defendant had not made the payment.
M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 5 of 8 CS Comm No.66/18
12. Now the case of the plaintiff is rested upon the invoices dated 08.05.2015 Ex.PW1/2 and dated 03.06.2015 Ex.PW1/3.
13. As pleaded in para 7 of the plaint, the cause of action arose in favour of the plaintiff when the defendant approached the plaintiff for purchase of the goods and when the plaintiff supplied the goods to the defendant. However, as mentioned above, in the entire plaint, the plaintiff has not disclosed the date, month and year when the defendant placed the purchase orders for the goods and when it supplied the goods to the defendant.
14. In view of the foregoing discussions, it can be held that the present suit was filed on 21.12.2018 i.e. much beyond the period of 3 years from the date of issuance of those invoices.
15. Accordingly to the plaintiff, between 03.06.2015 and first week of November, 2018, only one development had taken place when the defendant issued the cheque no. 000132 dated 29.06.2015 drawn on Bank of Baroda, Saharanpur in favour of the plaintiff to discharge its liability which was dishonored. However, as discussed above, the plaintiff has completely failed to prove the said fact.
16. In para 7 of the plaint, it is also pleaded that in first week of November 2018, the defendant had flatly refused to pay the outstanding amount due to the plaintiff. Firstly, no specific date to this effect has mentioned by the plaintiff nor deposed so by PW1 in his testimony. Secondly, no M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 6 of 8 CS Comm No.66/18 document has been filed on record to prove the said fact. Thirdly, as mentioned above, the plaintiff has relied upon the invoices Ex.PW1/2 and Ex.PW1/3 only and if the period of 3 years is computed from the invoice dated 03.06.2015, the period of limitation of 03 years to file the suit had expired on 03.06.2018.
17. Counsel for the plaintiff has relied upon the computer generated copy of ledger account Ex.PW1/5 and pleaded that the said ledger account was current in nature and as on 31.03.2018, Rs. 17,88,082/- was outstanding against the defendant which the defendant has failed to pay despite several demands. He has also relied upon the computer generated copy of ledger C-Form Ex.PW1/6.
18. Along with the plaint, the plaintiff has filed copy of the ledger account for the period 01.04.2015 to 01.12.2018. PW1 in his evidence has relied upon the copy of the ledger account for the period 01.11.2014 to 31.03.2015 and 01.04.2015 to 31.12.2018 Ex.PW1/5 out of which the ledger account for the period 01.11.2014 to 31.03.2015 has been filed by PW1 for the first time that too without seeking permission from this court. As such, the said ledger for the period 01.11.2014 to 31.03.2015 cannot be looked into.
19. Further, it is noted that the plaintiff has filed the certificate u/s 65B of the Evidence Act, 1872 in support of the annexures filed along with the plaint. However, PW1 has not proved the said certificate in his testimony. Therefore, the computer generated ledger account Ex.PW1/5 and the computer generated copy of ledger for C- M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 7 of 8 CS Comm No.66/18 Form Ex.PW1/6 are not admissible in evidence as no certificate u/s 65B of the Evidence Act, 1872 in support of thereof. Reliance is placed on the judgment titled as "Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal", reported in (2020) 7 SCC 1.
20. In view of the foregoing discussions, it is held that the suit of the plaintiff is barred by the period of limitation. It is also held that the plaintiff has failed to prove the amount claimed in the suit.
21. Therefore, the plaintiff is held not entitled to the decree as prayed for. Accordingly, the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed by PANKAJANNOUNCED IN THE OPEN COURT, PANKAJ GUPTA Date: On this 15th day of October, 2022 GUPTA 2022.10.22 13:39:18 +0530 (PANKAJ GUPTA) District Judge, S/W (Commercial Court):-01 NEW DELHI M/s Inox Decor Pvt. Ltd. Vs. Sharad Chauhan Page No. 8 of 8 CS Comm No.66/18