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Delhi District Court

K. K. Bearing & Mill Store vs Shubham Press Automation Pvt. Ltd on 3 March, 2020

 IN THE COURT OF SHRI MAN MOHAN SHARMA, DISTRICT
  JUDGE (COMMERCIAL COURT)­06, CENTRAL DISTRICT
             TIS HAZARI COURTS, DELHI

IN THE MATTER OF :­

                              CS (Commercial) No. 5746/2018

K. K. Bearing & Mill Store
Through its proprietor
Krishan Kumar
Shop no. 10, Shyam Market
G. B. Road, Delhi­110006                                                 .........Plaintiff

                                                Versus

Shubham Press Automation Pvt. Ltd.
B­92, Sector­10, Noida, U. P.                                              .......Defendant

         Date of Assignment                            :          06.08.2018
         Argument heard on                             :          02.03.2020
         Date of Judgment                              :          03.03.2020

JUDGMENT

1. The case of the plaintiff is that it is in the business of trading and bearings.

Plaintiff's Case

2. The defendant placed several orders for supply of bearings at the office of plaintiff in Delhi. The plaintiff supplied the same as per orders and defendant made various part payments. Finally, a sum of Rs.5,98,487/­ (Rupees Five Lakh Ninety Eight Thousand Four Hundred K.K. Bearing & Mill Store Vs. Subham Press Automation Pvt. Ltd. Page 1 of 8 Eighty Seven only) was outstanding against the defendant. The defendant paid a sum of Rs.2,30,000/­ (Rupees Two Lakh Thirty Thousand only) on demand by the plaintiff vide a cheque, which was encahsed leaving behind a sum of Rs.3,68,487/­ (Rupees Three Lakh Sixty Eight Thousand Four Hundred Eighty Seven only) which the plaintiff seeks to recover by this suit.

3. The suit had been instituted on 06.08.2018. The subject matter of this suit is a commercial dispute within the scope and meaning of the Commercial Court Act. Since, the coming into force of the amended provisions, Section 12A became applicable w.e.f. 13.05.2018. As such, resort to pre­institution mediation had been mandatory prior to the filing of the suit. It has been submitted by the ld. counsel for plaintiff that the recourse to pre­institution mediation could not be taken as the system for the same had been put in place only in December, 2018 and as such for want of a forum for the same, the pre­institution mediation could not be resorted to. It appears that not resorting to pre­institution mediation was due to factors and reasons beyond the control of the plaintiff.

Service of the Defendant

4. The process had been sent to defendant and he had been served as recorded in the minutes of proceedings dated 29.11.2018.

5. Despite service the defendant did not cause appearance and had been proceeded as ex­parte vide the minutes of proceedings of the even date. The defendant did not join the proceedings thereafter.

Plaintiff's Evidence

6. Proprietor of plaintiff company has examined himself in examination­ in­chief. He has proved the copy of Ledge Account as Ex.PW1/A and copy of bills as Ex. PW1/B. List of invoices Ex. PW1/B Date Invoice no. Amount (Rs) 11.04.2017 915 33573/­ 12.06.2017 953 46824/­ 27.06.2017 969 20666/­ 12.07.2017 002 20166/­ 28.07.2017 023 19865/­ 08.08.2017 034 21417/­ 08.08.2017 036 8397/­ 29.08.2017 061 20738/­ 15.09.2017 076 10585/­ 15.09.2017 077 19836/­ 25.09.2017 089 19629/­ 25.09.2017 090 17983/­ 03.10.2017 098 9995/­ 10.10.2017 108 18284/­ 23.10.2017 117 10378/­ 30.11.2017 148 42698/­ 14.12.2017 158 27376/­ The plaintiff evidence has been closed on 24.02.2020.

Arguments

7. I have heard the submissions advanced by Sh. Anil Kumar, ld. counsel for the plaintiff.

8. Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.

9. The testimony of the plaintiff's witness has remained unchallenged and un­impugned as the defendant has not come forward to defend the suit despite being duly served.

10. The suit is within the limitation as the last payment has been made by the defendant on 05.12.2017 in the sum of Rs.80,000/­ (Rupees Eighty Thousand only), as per the statement of account Ex. PW1/A. The suit was instituted on 06.08.2018, hence, the same is within limitation.

11. Though the plaintiff has not resorted to pre­institution mediation but the fault is not in his part as it has been stated that there was no institutional paraphernalia available for the same.

12. There is no other legal impediment that the suit cannot be decreed in favour of the plaintiff.

Appreciation of Evidence & Arguments

13. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Court Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2(c) of the Act.

14. The summons which has been sent to the defendant in this case have K.K. Bearing & Mill Store Vs. Subham Press Automation Pvt. Ltd. Page 4 of 8 been the summons for the settlement of issues. The summons did not put the defendant on a caveat that in case of his non­appearance the averments in the plaint shall be deemed to be admitted. Thus, even when the defendant has not come forward to contest the suit and has been proceeded as ex­parte, the plaintiff is still liable to prove its case on pre­ponderance of probabilities.

15. PW­1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/1 and relied upon Ledger Account Ex.PW1/A and copy of bills Ex. PW1/B (Colly). A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. However, the same appear to have been maintained in the ordinary course of business by the plaintiff.

16. A civil case proceeds on the doctrine of pre­ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non­appearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his non­appearance, and the Court cannot speculate into the reasons for his non­appearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of pre­ponderance of probabilities. Placing reliance upon the judgement cited by the plaintiff and on the K.K. Bearing & Mill Store Vs. Subham Press Automation Pvt. Ltd. Page 5 of 8 strength of the pronouncement made therein there is enough room to take the documents tendered by the plaintiff on their face value without any demur.

17. Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendant used to place orders to the plaintiff time to time and various transactions have been recorded in ledger account Ex. PW1/A and also in copy of bills Ex. PW1/B (colly). The transaction being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system, through which they have been generated.

18. The plaintiff has made several requested to the defendant calling upon him to clear the outstanding in his account. Due to non­compliance on the part of the defendant, the plaintiff took legal recourse by filing the instant suit for recovery.

19. The suit has been instituted on 06.08.2018 and the same is therefore within the prescribed period of limitation.

20. The plaintiff has claimed amount of Rs.3,68,487/­ (Rupees Three Lakh Sixty Eight thousand Four Hundred Eighty Seven only) with cost of the suit. In my opinion, the plaintiff has duly proved his claim in accordance with the law. He is therefore, entitled to the suit amount with interest and costs.

21. The plaintiff has not claim any specific rate of interest in his suit.

However, the invoices mentioned that interest @24% per annum is chargeable if the payment is not made within 21 days. However considering the present economic conditions and the fact that the rate of interest have been falling over a long period of time and considering the risk factors involved, in my opinion, it would meet the ends of justice, if the plaintiff is awarded interest @12% per annum from the date of institution of suit i.e. 06.08.2018 till realization of the entire amount on reducing balance basis. The plaintiff shall also be entitled to the cost of the suit. Advocate fees would be given as per the certificate of fee filed, if any.

22. Thus the suit of the plaintiff is liable to be decreed in terms as stated above.

ORDER

23. The suit of the plaintiff is decreed in the sum of ₹Rs.3,68,487/­ (Rupees Three Lakh Sixty Eight thousand Four Hundred Eighty Seven only) with simple interest @ 12% per annum from the date of institution of the suit i.e. 06.08.2018 till realization of the entire amount.

24. The plaintiff shall be entitled to the costs of the suits as well as per the rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs.

25. Decree shall be drawn accordingly.

Copy of the Judgment

26. In compliance of the provisions of the Order XX Rule 1 of the Code of K.K. Bearing & Mill Store Vs. Subham Press Automation Pvt. Ltd. Page 7 of 8 Civil Procedure (as amended up­to­date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.

27. File be consigned to the Record Room.

                                                   MANMOHAN       SHARMA
Announced in the open court                        SHARMA         Date: 2020.06.19
on 03.03.2020                                                     14:22:34 +0530
                                                     (Man Mohan Sharma)
                                             District Judge (Commercial Court)­06

Central District, Tis Hazari Courts,Delhi K.K. Bearing & Mill Store Vs. Subham Press Automation Pvt. Ltd. Page 8 of 8