Delhi District Court
M/S Raj Polymers vs M/S Wh Wintech Pvt. Ltd on 16 February, 2016
IN THE COURT OF SH. SATISH KUMAR
ADDITIONAL DISTRICT JUDGE2, (NORTH)
ROHINI COURTS, DELHI.
CS NO.93/14
M/s Raj Polymers,
Through its Proprietor:
Sh. Pankaj Aggarwal,
S/o Sh. Niranjan Aggarwal
Having its Branch Office at:
D503, Vinoba Kunj, Plot No.9, Sec.9,
Rohini, Delhi110085. ......Plaintiff
Vs.
M/s WH Wintech Pvt. Ltd.
Having its Registered Office at:
5, Aradhna Enclave,
Inner Ring Road, R.K. Puram,
New Delhi110066 ......Defendant
SUIT FOR RECOVERY OF Rs.10,04,930/ (Rupees Ten Lacs
Four Thousand Nine Hundred Thirty Only) ALONG WITH
ACCRUED INTEREST @ 24% P.A. FROM THE DATE OF
RESPECTIVE INVOICES TILL ITS FINAL REALISATION AND
ALONTWITH COST OF THE LITIGATION.
Date of institution : 21.01.2014
Date of judgment reserved : 08.02.2016
Date of Order/Judgment : 16.02.2016
Final order : SUIT DECREED
CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 1 of 11
Present: Sh. Arun Kumar Goel Ld. counsel for the plaintiff.
Sh. Rajesh Sharma Ld. counsel for defendant.
JUDGMENT:
1. That the plaintiff has filed the suit for recovery of Rs.10,04,930/ (Rupees Ten Lacs Four Thousand Nine Hundred Thirty Only) against the defendant stated therein that the plaintiff is in the business of trading of PVC Resin Etc. and the defendant is a Pvt. Ltd. Company and also having running account with the plaintiff for the business transaction made by it with the plaintiff being one of its respective customers for the purchase of PVC Resin material etc. And as per the admitted statement of account and the goods supplied from time to time through various invoices since the year 20102011, current debit balance of Rs.10,04,930/ is outstanding against the defendant and the same has not been paid by defendant and the defendant has also even failed to give a formal reply or denial of the last email of the plaintiff dt.08.10.13.
2. The present suit has been filed with the following prayers: A. To pass money decree of Rs.10,04,930/ in CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 2 of 11 favour of the plaintiff and against the defendant company along with past, future and pendentelite interest @ 24% p.a. from the date of respective invoices, till the realization of the decreetal amount.
B. To award the cost of the suit in favour of the plaintiff and against the defendant company.
3. That, after notice of this suit, the defendant has filed the written statement and denied the averments made in the plaint and submitted that original book of account have not been produced before this court at the time of filing of this suit and the suit of the plaintiff is also not maintainable and the same may kindly be dismissed with cost.
4. That, the plaintiff has filed the replication to the written statement of the defendant and denied the averments made in the written statement and reiterated the contents of the plaint.
5. That, upon the pleadings, following issues have been framed by this court vide order dt.10.05.14:
1) Whether the plaintiff is entitled for the money decree for a sum of Rs.10,04,930/ along with pendentelite CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 3 of 11 and future interest @ 24%p.a. against the defendant from the filing of this suit and till its realisation? OPP.
2) Whether the plaintiff is entitled for the cost of the suit against the defendant? OPP.
3) Whether the suit of the plaintiff is maintainable interms of Order XXX rule 1 of CPC? OPD.
4) Whether this court has the jurisdiction to try and entertain the suit of the plaintiff? OPD.
5) Relief?
6. That, in order to prove his case, plaintiff has examined himself only as PW1 and he has tendered his evidence by way of affidavit which is Ex.PW1/A bearing his signatures at point A and B. He has relied upon the documents: Sr. No. Name of document Exhibit
1. Certificate of Incorporation MarkA
2. Email correspondences Ex.PW1/2
3. Statement of account 01.04.10 to Ex.PW1/3 11.01.14
4. Sales contracts, bank Ex.PW1/4 LC's/Documents, builties etc. CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 4 of 11
7. Whereas to disprove the case of the plaintiff the defendant has examined himself as DW1 and he has tendered his evidence by way of affidavit which is Ex.PW1/A bearing his signatures at point A and B. He has relied upon the documents: Sr. No. Name of document Exhibit
1. Computer generated copy of debit Ex.DW1/1 note
2. Affidavit U/s 65B Indian Evidence Ex.DW1/2 Act
8. Having heard the submission made by the Ld. counsel for the parties and after gone through the case file my issue wise findings are as under: ISSUE NO.1 :
9. That, the onus to prove this issue was upon the plaintiff and to prove the same the plaintiff has examined himself as PW1 as sole witness and he has tendered his evidence by way of affidavit Ex.PW1/1 bears his signatures at point A and B. And the plaintiff has been able to prove CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 5 of 11 the copy of certificate of incorporation of the defendant company MarkA and also proved computer generated all e mails, correspondences and demand of dues Ex.PW1/2, certified statement of account 01.04.10 to 11.01.14 along with all detail invoices Ex.PW1/3 and certified original sale contracts Ex.PW1/4.
10. That, during the course of the arguments it has been argued by Ld. counsel for the defendant that all these documents are computer generated invoice and documents and the plaintiff has not filed any affidavit of Sec. 65B of the Indian Evidence Act and the absence of the same the computer generated invoices cannot be admitted to be proved. This arguments of Ld. counsel for the defendant is immaterial and cannot be substantiated in the eyes of law inasmuch as all the invoices have been generated from the digital system / computer installed in the office of the plaintiff and if the other data's would have been received by the plaintiff and the print out of the same was to be taken from that data then only the form U/s 65B of Indian Evidence Act is required otherwise it has not been required. Therefore, all the computer generated invoices bearing the CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 6 of 11 seal and signature of the plaintiff company is admissible in evidence and all the emails are also admissible.
11. It has also been argued by Ld. counsel for the defendant that the plaintiff has himself admitted in his cross examination that the supplies made by the plaintiff to the defendant were short from the quantity shown in some of the invoices and the short supplies were also in the knowledge of the plaintiff before filing of this suit. It has also been admitted by the witness that the defendant had instructed the plaintiff to supply PVR Resin of grade LG KOREA OR FAMOSA USA and the plaintiff have supplied PVC Resin of grade /make chinese SG5. This argument of Ld. counsel for the defendant is also immaterial and cannot be substantiated in the eyes of law inasmuch as if there was a demand of PVR Resin of LG KOREA OR FAMOSA USA and the plaintiff some times have supplied PVC Resin of Grade / make Chinese SG5 than the same could have been better quality than Grade LG KOREA OR FAMOSA USA and if the Chinese SG5 was of inferior quality than LG KOREA OR FAMOSA USA or had there been short supply of the same then the defendant ought to have bring CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 7 of 11 to the notice of the plaintiff immediately after receipt the chinese SG5 and to served upon a legal notice or through Email or any other mode to the plaintiff before filing of this suit but the defendant has not placed on record any document to prove that the fact of inferior quality of goods or of short supply of the goods was brought to the notice of the plaintiff before filing of this suit in writing and the defendant has also not been able to prove the same and as per the provisions of Sales of Goods Act if any, short supply has been made or the goods or inferior quality was supplied and if the same has not been brought to the notice of the plaintiff through written communication nor any suit for damages has been filed for suffered loss by the defendant then it is presumed that the defendant has accepted the short supply of goods as well as the inferior quality of the goods. Reliance is place upon M/s Lohmann Rausher Gmbh. Vs. M/s, Medisphere Marketing Pvt. Ltd., 2005 II AD (Delhi) 604, 117 (2004) Delhi Law Times 95 wherein Their Lordships has held that as per the Sec.41 & 42 of Sale of Goods Act if the defective goods did not rejected within reasonable time then the same would be admitted to CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 8 of 11 have been accepted goods and if a false plea has been taken that the goods which were supplied, defective, sub standard then it is not legitimate defence.
12. That, the plaintiff has lastly demanded the outstanding amount from the defendant through email dt. 08.10.13 and the same has also not been replied by the defendant and if there would have been any legitimate defence to the defendant than they ought to have reply of the email dt.08.10.13 whereby the outstanding amount was demanded. Reliance is placed upon Kalu Ram Vs Sita Ram 1980 RAJDHANI LAW REPORT (Note) 44 passed by Hon'ble Mr. Justice Avadh Behari. Therefore, this court is of the considered view that the plaintiff has been able to prove that he is entitled for the amount of Rs.10,04,930/ against the defendant hence, this issue is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.2:
13. That, the onus to prove this issue was also upon the plaintiff and to prove the same the plaintiff has examined himself as PW1 as sole witness and he has tendered his evidence by way of affidavit Ex.PW1/1 bears his signatures at CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 9 of 11 point A and B. And as per the findings of this court upon the issue No.1 which has been decided accordingly, infavour of the plaintiff then the plaintiff is also entitled for the cost of this suit, hence this issue is also decided infavour of the plaintiff and against the defendant.
ISSUE NO.3 & 4 :
14. So far as the issue No.3 and 4 are concerned, the onus to prove both these was upon the defendant and the defendant has not been able to prove both these issues in his favour inasmuch as no evidence has been lead by the defendant and if, merely an averment in the pleadings upon which no evidence has been lead than the same is not having any considerable legal value.
15. That, the arguments of Ld. counsel for the defendant that the suit has been filed by M/s Raj Polymers which is a proprietorship firm and the proprietorship firm does not have any legal identity and the suit of the plaintiff is not maintainable. This arguments of Ld. counsel for the defendant is immaterial and having no legal sanctity inasmuch as the suit of the plaintiff filed by M/s Raj Polymers through its proprietor Sh. Pankaj aggarwal as mentioned in the title of the suit is very much maintainable Reliance is placed upon SVAPN CONSTRUCTION V/S IDPL EMPLOYEES COOPERATIVE CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 10 of 11 GROUP HOUSING SOCIETY LTD. & ORS. 127 (2006) DLT 80. Moreover, it has been proved by the plaintiff that the goods were supplied to the defendant and the payment has been made against the goods supplied by the defendant and as per findings of this court in issue No.1 the plaintiff is entitled for the outstanding amount against the goods supplied. Therefore, the defendant has not been able to prove both these issues in his favour, hence, the same has been accordingly decided against the defendant.
16. In view of the aforesaid findings of this court on all the issues, it is held that the plaintiff is entitled for a decree of Rs.10,04,930/, therefore, a decree of Rs.10,04,930/ (Rupees Ten Lacs Four Thousand Nine Hundred Thirty Only) along with past, future and pendentelite interest @ 6% p.a. from the date of respective invoices, till the realization of the decreetal amount along with costs of the suit is hereby passed in favour of the plaintiff and against the defendant.
17. Decree sheet be, prepared, accordingly.
Announced in the open (Satish Kumar) Court on 16.02.2016 ADJ02, North, Rohini Courts, Delhi
Every page of this judgment is signed by me.
(Satish Kumar) ADJ02, North, Rohini Courts,Delhi.
CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 11 of 11 CS NO.93/14 16.02.2016 Present: Ld. Proxy counsel for the counsel for parties.
Vide my separate judgment announced in the open court today the suit of the plaintiff is hereby decreed in favour of the plaintiff and against the defendant.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 12 of 11 (Satish Kumar) ADJ2, North, Rohini Courts, Delhi 16.02.2016 CS NO.93/14 M/s Raj Polymers vs M/s WH Wintech Pvt. Ltd. Page No. 13 of 11