Delhi District Court
Sh. Sanjay Aggarwal vs Beacon Electronics on 29 September, 2018
IN THE COURT OF SH. DEEPAK DABAS:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/610123/2016
SH. SANJAY AGGARWAL
S/o Sh. Rajinder Aggarwal,
Partner of SIROCCO Cab N Cords,
G-1/1432, Rampur Mundana,
RIICO Industrial Area, Bhiwadi-301019
District Alwar, Rajasthan. ............Plaintiff
Vs.
BEACON ELECTRONICS,
DSM-364, 3rd Floor,
DLF Towers, Shivaji Marg,
New Delhi-110015
through its directors
ALSO AT:-
BEACON ELECTRONICS,
F-55, Phase-I,
RICCO Industrial Area,
Neemrana, Shahjahanpur,
Alwar, Rajasthan-301705
through its Directors ..............Defendant
Date of institution :-18.08.2015
Order Reserved On:-18.09.2018
Date of Decision:- 29.09.2018
Sanjay Aggarwal Vs. Beacon Electronics Page No. 1/10
For the Plaintiff:- Sh. C.M. Shukla, Advocate.
For the Defendant:- Sh. Prashant Mehnidratta, Advocate.
SUIT FOR RECOVERY OF RS.7,78,397/-
JUDGMENT
By this judgment, I shall decide the present suit filed by plaintiff against the defendant for recovery of sum of Rs.7,78,397/-(Rupees Seven Lacs Seventy Eight Thousand Three Hundred and Ninety Seven Only).
A. CASE OF PLAINTIFF IN BRIEF:-
1. Perusal of plaint shows that present suit has been filed by Sirocco Cab N Cords i.e. a partnership firm through its partner Sh. Sanjay Aggarwal. The plaintiff is manufacturer of Electricals and Electronic wires under the trade name of Sirocco Cab N Cords.
2. According to plaintiff, plaintiff supplied electricals and electronic wires to the defendant as per orders placed by defendant on different dates and there was no complaint of any kind in respect of the delivered goods regarding their quality and quantity till date.
3. According to plaintiff, defendant purchased goods from the plaintiff from time to time. As per running account maintained by plaintiff, a sum of Rs.7,14,125.75P is still due and outstanding against Sanjay Aggarwal Vs. Beacon Electronics Page No. 2/10 the defendant which the defendant has not cleared till date despite number of visits and reminder by the plaintiff. According to plaintiff, as the defendant has not paid the entire balance amount till date, the defendant is liable to pay the said amount alongwith interest @18% per annum w.e.f. 14.01.2015 till realization of the said amount.
4. According to plaintiff, legal notice dated 29.06.2015 was also served upon defendant by the plaintiff through its Counsel but the defendant intentionally and deliberately in collusion with the postman refused to receive the said notice, hence the same was returned undelievered with remarks "refused". Hence, the present suit has been filed by the plaintiff against the defendant for recovery of aforesaid amount alongwith pendentelite and future interest @ 18% per annum.
B. CASE OF DEFENDANT
1. Defendant filed its written statement raising therein some preliminary objections. According to defendant, the suit has not been filed by duly authorized person. The special power of attorney has not been validly executed. The suit of the plaintiff has not been filed by a partnership firm or a duly authorized partner of Sirocco Cab N Cords.
The plaintiff has not placed on record any valid document in this regard. No cause of action arose at Delhi and therefore, this Court has no territorial jurisdiction to proceed further with this case.
2. On merits, defendant has claimed that the special power of attorney neither authorize Sh. Sanjay Aggarwal to file the present suit Sanjay Aggarwal Vs. Beacon Electronics Page No. 3/10 nor the SPA is a validly executed document. According to defendant, the partnership of the firm namely Sirocco Cab N Cords is vehemently disputed. In its written statement, defendant admitted that it had purchased some material i.e. Electrical Wire from Sirocco Cab N Cords and the same was to be used for material to be exported and it required certain specifications, test and markings on the wires.
3. According to defendant, Sirocco Cab N Cords had not supplied material in terms of instructions given from time to time by the defendant especially with regard to the thickness and gaze of the wires. The material which was supplied to defendant was of poor quality and there were no markings on huge quantity of material. Moreover, there was no insulation on substantial quantity of material supplied and this fact was brought to the knowledge of Sirocco Cab N Cords.
4. According to defendant, the wires supplied to it were of extremely poor quality and therefore the defendant had to incur huge expenditure in changing the wires at last minute before exporting the goods. Defendant has further claimed that no running account was maintained by plaintiff and defendant is not liable to pay anything to plaintiff. Defendant has prayed that the suit filed by plaintiff be dismissed.
C. REPLICATION Replication was filed by plaintiff to written statement of defendant wherein contents of plaint were reiterated and version of defendant was denied.
Sanjay Aggarwal Vs. Beacon Electronics Page No. 4/10D. ISSUES After completion of pleadings, the following issues were framed on 28.02.2017 :-
(1)Whether the plaintiff is entitled for recovery of suit amount as prayed?OPP (2)Whether the plaintiff is entitled for the interest over the suit amount, if so, at what rate and for what period?OPP (3) Relief E. EVIDENCE LED BY PLAINTIFF:-
Plaintiff has produced and examined only one witness in support of its case. PW-1 is Sh. Sanjay Aggarwal. PW-1 tendered his evidence by way of affidavit i.e. Ex.PW-1/A and relied upon documents i.e. Ex.PW- 1/1 to Ex.PW-1/5. PW-1 was cross examined at length by Ld. Counsel for the defendant.
No other witness has been produced and examined by plaintiff.
F. EVIDENCE LED BY DEFENDANT:-
No witness has been produced/examined by defendant in support of its case.
G. I have heard Ld. Counsel for the plaintiff as well as Ld. Counsel for the defendant and I have perused the record carefully. I have also gone through the following judgments relied upon by Counsel for the defendant:-Sanjay Aggarwal Vs. Beacon Electronics Page No. 5/10
1. Shankar Housing Corporation Vs. Mohan Devi & Ors. i.e. Suit No.582 of 1967 decided on 02.12.1977 by Hon'ble High Court of Delhi.
2. Sohan Lal Basant Kumar Vs. Umraomal Chopra i.e. RFA No.180 of 1972 decided on 06.05.1985 by Hon'ble High Court of Rajasthan.
H. My findings on the issues are as under:-
1. ISSUE NO.-1:- Whether the plaintiff is entitled for recovery
of suit amount as prayed?OPP
Onus of proving this issue is on the plaintiff.
Sirocco Cab N Cords i.e. a partnership firm has filed present suit through its partner i.e. Sh. Sanjay Aggarwal. Perusal of entire plaint, evidence by way of affidavit of PW-1 as well as documents relied upon by plaintiff/PW-1 shows that the plaintiff has nowhere mentioned that Sirocco Cab N Cords i.e. partnership firm is registered. No document has been placed on record with respect to its registration. Plaintiff has failed to prove that Sirocco Cab N Cords i.e. a partnership firm has been duly registered.
Section 69 of The Indian Partnership Act, 1932 deals with effect of non-registration. Relevant portion of Section 69 of The Indian Partnership Act,1932 is being reproduced herein for the sake of convenience and ready reference:-
"69. Effect of non-registration:-(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against Sanjay Aggarwal Vs. Beacon Electronics Page No. 6/10 the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
(3) ...............
(4) ..............."
In a case titled as Loonkaran Sethia Vs. Ivan E. John reported as AIR 1977 SC 366, Hon'ble Supreme Court held that:-
"A bare glance at the Section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of Section 69 of Partnership Act."
In Shankar Housing Corporation Case(Supra), Hon'ble High Court of Delhi held that a firm is not a separate legal entity but is only a collective or compendious name for all the partners. So, if a suit to enforce a right arising from a contract is to be instituted by a firm against a third party, the firm would be the plaintiff. If the suit is to be instituted on behalf of a firm, the partner or partners who wants to institute the suit on behalf of(i.e. for the benefit of) the firm would be the plaintiff. But, in both the cases, the suit would in effect be by or on behalf of all the partners of the firm. It was further held that Section 69(2) lays down that Sanjay Aggarwal Vs. Beacon Electronics Page No. 7/10 the suit of the nature mentioned above can be instituted only if (a) the firm is registered and (b) the persons suing are or have been shown in the register of firms as partners in the firm. The use of the word 'is' and 'are or have been', which are in the present tense, shows that the point of time contemplated in Section 69(2) is at the time of the institution of the suit. That is to say, the firm must be a registered firm by the date of the institution of the suit and persons suing(i.e. all the partners) must have been shown in the register of firm as partners of the firm by the date of the institution of the suit.
In Sohan Lal Basant Kumar's Case(Supra), it was held that whether the suit is filed by all the partners collectively or only one of the partners impleading the rest as parties to the suit or whether it is filed in the name of the firm by one or more partners in the manner indicated by order 30 Rule 1 CPC the conditions prescribed by Section 69(2) must be fulfilled i.e. :-
(1) the firm must be registered and (2) the person suing are or have been shown in the register of firms as partners in the firm.
It was further held that both the aforesaid conditions must exist together on the date of the institution of the suit and if the aforesaid two conditions are not satisfied and there is non-compliance of provision of Section 69(2) the suit is not maintainable.
In the present case, plaintiff has failed to prove that the firm i.e. Sirocco Cab N Cords is registered. Plaintiff has even failed to prove that name of Sh. Sanjay Aggarwal is shown in the register of firms as partner in the firm. In view of aforesaid facts, circumstances and discussion Sanjay Aggarwal Vs. Beacon Electronics Page No. 8/10 made hereinabove, the suit filed by plaintiff is not maintainable.
Even otherwise, plaintiff in para no.-6 of its plaint has stated that as per running account maintained by plaintiff, a sum of Rs.7,14,125.75P is still due and outstanding against the defendant. PW-1 in his evidence by way of affidavit i.e. Ex.PW-1/A reiterated the aforesaid contention. However, in his cross examination dated 19.12.2017, PW-1 admitted that no running account was maintained by plaintiff qua defendant and the payments used to be made as per the orders given by the defendant. Documents Ex.PW-1/3 i.e. Payment reminder letters as well as Ex.PW- 1/4 i.e. Copy of Statement of Ledger Account are computer generated documents. Initially, no certificate under Section 65B of The Indian Evidence Act was filed by plaintiff in support of those documents. Later on, said certificate was filed but PW-1 failed to prove said certificate as per law. It is pertinent to mention that PW-1 has not referred about said certificate in his evidence by way of affidavit. Mere filing of said certificate is not sufficient. PW-1 was under an obligation to prove the same as per law. PW-1 failed to discharge his said obligation. Hence, no reliance can be placed upon said documents.
In view of discussion made hereinabove, I am of the considered view that plaintiff is not entitled for recovery of suit amount as prayed.
Hence, issue no.-1 is decided in favour of defendant and against the plaintiff.
2. ISSUE NO.-2:- Whether the plaintiff is entitled for the interest over the suit amount, if so, at what rate and for what period?OPP Sanjay Aggarwal Vs. Beacon Electronics Page No. 9/10 Onus of proving this issue is also on the plaintiff. While discussing and deciding issue no.-1, it has been held that plaintiff is not entitled for recovery of suit amount as prayed.
In view of my findings qua issue no.-1, plaintiff is not entitled for any interest over the suit amount.
Hence, issue no.-2 is also decided in favour of defendant and against the plaintiff.
3. ISSUE NO. (3):- RELIEF In view of my findings on the aforesaid issues, plaintiff is not entitled to any relief. Suit filed by plaintiff is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities. Digitally signed by DEEPAK DEEPAK DABAS DABAS Date:
2018.10.01 16:11:48 +0530 Announced in the open Court (DEEPAK DABAS) Dated : 29th Sept. 2018 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Sanjay Aggarwal Vs. Beacon Electronics Page No. 10/10