Delhi District Court
M/S. D.C. Agencies Pvt. Ltd vs M/S Medicart E Commerce India Pvt Ltd ... on 30 July, 2024
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KKD, DELHI
CS Comm. No.193/2024
M/s D C Agencies Private Ltd.
174, Patparganj Industrial Area,
Phase-1, Delhi-110092 ............Plaintiff
Vs.
M/s Medicart E-Commerce (India) Pvt. Ltd.
Through its Director/AR
At: First Floor, G-127, Sector-63,
Noida, Gautam Budh Nagar, UP-201301 .............Defendant
Date of Institution : 26.03.2024
Date of Final Arguments : 30.07.2024
Date of Judgment : 30.07.2024
Decision : Decreed
Judgment
1. This suit is filed by plaintiff, a registered partnership firm, for recovery of
Rs.3,98,000/- lakhs along with interest @18% interest as unpaid dues of goods
sold.
Case of the Plaintiff
2. Case of the plaintiff as per plaint and the documents filed is that the plaintiff is
a duly incorporated company and is in the business of trading and distribution
of pharmaceuticals products including medical, cosmetic and consumer items
having office at Patparganj, Shahdara. They have filed this suit through their
Authorised Representative Sh. Ravinder Bhandari. In the course of business
the defendant, which is also a duly incorporated private ltd. Company having
registered office at Section 63, Noida, UP, approached the plaintiff company
for purchase of pharmaceuticals, medical and cosmetic items.
CS Comm No.193/2024 page 1
M/s DC Agencies Private Ltd. Vs. M/s Medicart E-Commerce India Private Ltd. Through its representative
Neeraj Rastogi
3. Goods were sold and supplied as per orders received against an invoice dated
23.08.2022 for Rs.5,82,624/-. Endorsement of receipt of goods on the invoice
is cited in order to discharge the onus to prove delivery. Defendant issued a
cheque on ICICI Bank for Rs.5,82,624/-. This cheque dated 08.09.2022 on
presentation was dishonoured on 27.09.2022 for insufficiency of funds (none
of the dates mentioned in the plaint). It was followed by issuance of notice
which was not replied but part payments of Rs.1,33,124/- on 29.09.2022 and
Rs.1,21,800/- on 22.12.2022 were made by way of bank transfer leaving a
debit balance of Rs.3,28,200/-. This amount was not cleared and hence Plaintiff
approached Shahdara DLSA for Pre-Institution Mediation under Section 12A
of Commercial Courts Act, 2015 wherein defendant did not participate and
Non-Starter Report dated 11.05.2023 followed by filing of this suit with
following reliefs with pre-suit interest:
Prayer:
i. Pass a money decree for a sum of Rs.3,98,000/- alongwith pendente lite and future in-
terest @18% per annum till actual realization of aforesaid amount in favour of plaintiff
and against the defendant ;
ii. Award the cost of the suit in favour of plaintiff and against the defendant and;
iii. Pass any other order or relief which this Hon'ble Court may deem fit, just and proper in
the facts and circumstances of the case in favour of the plaintiff and against the defen-
dant.
4. Summons of the suit was served upon the defendant on 06.04.2024. Defendant
entered appearance on 14.05.2024 through Counsel Sh. Mukesh Mishra,
Advocate. No WS was filed even though additional time was granted by Ld.
Predecessor on 31.05.2024. Thereafter, the case was transferred to this Court.
When the matter was taken up on 04.06.2024 and still no WS was filed
defendant's right to file WS was closed and its defence was struck off.
5. Out of the pleadings following notional issues were identified by this Court on
04.06.2024:
CS Comm No.193/2024 page 2
M/s DC Agencies Private Ltd. Vs. M/s Medicart E-Commerce India Private Ltd. Through its representative
Neeraj Rastogi
Notional Issues:
i. Whether plaintiff is entitled to recovery of Rs.3,98,000/- alongwith interest @18% per
annum? OPP
ii. Relief
Evidence
6. Evidence in this case was ordered to be recorded before Ld. LC Sh. Vivek
Bhardwaj, Advocate as per protocol created by this Court under Order 18 Rule
4 CPC read with Order 15A Rule 6(l) and (o) CPC as applicable to
Commercial suits.
Evidence
7. To prove its case Plaintiff examined PW1 Ravinder Bhandari, its
AR/employee. Vide affidavit Ex.PW1/A he deposed on the lines of plaint and
exhibited following documents:
i. The resolution on record dated 21.08.2022 is Ex.PW1/1;
ii. The invoice dated 23.08.2022 is Ex.PW1/2;
iii. The Cheque bearing no. 000576 dated 08.09.2022 for Rs.5,82,624/-, ICICI Bank is
Ex.PW1/3;
iv. The returning memo of the dishonour of the cheque dated 27.09.2022 is Ex.PW1/4;
v. Legal notice dated 16.12.2022 is Ex.PW1/5;
vi. Postal receipts are is Ex.PW1/6;
vii. The computerised statement of account is Ex.PW1/7;
viii.Non-Starter Report is Ex.PW1/8;
ix. Certificate-cum-affidavit under Section 65B of Evidence Act is Ex.PW1/9;
8. None appeared on behalf of defendant for cross-examining PW1.
9. I have heard arguments of Sh. J. K. Srivastava, Ld. Counsel for plaintiff. None
has appeared on behalf of defendant to argue the case. I have perused the case
file carefully.
Final Arguments:
10.To prove its case plaintiff has exhibited the invoice as Ex.PW1/2 in order to
show the sale and to discharge the onus of proving the delivery as per Section
31, 33 and 39 Sale of Goods Act, 1930.
CS Comm No.193/2024 page 3
M/s DC Agencies Private Ltd. Vs. M/s Medicart E-Commerce India Private Ltd. Through its representative
Neeraj Rastogi
11.The evidence in this case is primarily documentary. The documents relied upon
by the plaintiff are the documents maintained by a company in the ordinary
course of its business. Though the exceptions cannot be ruled out, but generally
taking a judicial notice of the business, these documents can be considered to
be duly executed in due course of the business and capable of binding the
parties into a contractual relationship.
12.The legal demand notice was not replied by the defendant despite due service.
As per case titled Jayam Company Vs. T. Ravi Chandaran 2003 (3) RCR (Cr.)
154 Madras presumption is drawn against defendant that they have admitted
the contents of the legal notice.
13.In another case titled as Metropolis Travels & Resorts (I) Pvt. Ltd. Vs. Sumit
Kalra and Ors., 2002 Latest Caselaw 714 Del wherein it was observed that :
"13. There is another aspect of the matter which negates the argument of the respondent and
that is that the appellant served a legal notice on the respondent vide Ex. PW1/3. No rely to the same was given by the respondent. But in spite of the same, no adverse inference was drawn against the defendant. This court in the case of Kalu Ram Vs. Sita Ram 1980 RLR 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality, adverse inference should be drawn because he kept quite over the notice and did not send any reply. Observations of Kalu Ram's case (supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice, respondent did not care to reply nor refuted the averments of demand of theamount on the basis of the invoices/ bills in question. But the Ld. Trial court failed to draw inference against the respondent".
(Emphasis Supplied)
14.Ld. Counsel for plaintiff has also relied upon case titled as Krishan Kumar Aggarwal Vs. Life Insurance Corporation 2010 Latest Caselaw 3344 Del wherein Hon'ble Delhi High Court observed that:
"65. No explanation has been rendered by the respondent as to why letter dated 23 rd August, 2008 and the legal notice send by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23 rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. MANU/SC0396/1988: (1988) 2 SCC 165 & Hirallal Kapur Vs. Prabhu Chaudhary MANU/SC/0189/1988 : (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant.
CS Comm No.193/2024 page 4 M/s DC Agencies Private Ltd. Vs. M/s Medicart E-Commerce India Private Ltd. Through its representative Neeraj Rastogi "66. In a Division Bench proceedings of this court reported in Metropolis Travels and Resorts Vs. Sumit Kalra MANU/DE/0562/2002 : 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality, adverse inference should be drawn".
(Emphasis Supplied)
15.As per judgments of Division Bench of Hon'ble High Court of Delhi, plaintiff has been successful in showing on record that non-reply of legal notice by the defendant calls for drawing of presumption as to correctness of the facts con- tained therein.
16.The pleadings in the plaint and annexed documents have remained unrebutted, unchallenged and uncontroverted. In the absence of any plausible denial on be- half of defendant, case of the plaintiff is deemed to be admitted. On the basis of pleadings, evidence led and the documents exhibited plaintiff has discharged the onus of proving his case.
Interest
17.Plaint is silent as there is no compliance of Order 7 Rule 2 CPC alongwith 18% interest is not mentioned even in the invoice. In the suit in hand the interest is payable as per Section 34 CPC. For ready reference, Section 34 CPC is reproduced hereunder:
Section 34 CPC: Interest
(i)"Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6% per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the court thinks fit.
(ii).Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate or interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.
Explanation (i) In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970.
CS Comm No.193/2024 page 5 M/s DC Agencies Private Ltd. Vs. M/s Medicart E-Commerce India Private Ltd. Through its representative Neeraj Rastogi Explanation (ii) For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
Where such a decree is silent with respect to the payment of further interest (on such principal sum) from the date of the decree to the date of the payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.
(Emphasis Supplied)
18.Section 34 CPC provides that plaintiff will be entitled the interest at the rate at which Court finds reasonable. For a general suit, the rate of interest prescribed is 6% and for commercial suit, the Parliament promulgates that rate of interest may increase from 6% to a rate which is found reasonable. Plaintiff is accord- ingly entitled to only the rate at which RBI has issued Circular for Commercial suits.
19.As far as the interest is concerned, rate applicable to Commercial transaction shall be payable. As per RBI notification dated 30.08.2022 issued vide Press Release no.2022-2023/794 whereby advisory issued by RBI to Schedule Commercial banks of accepting deposit rates @ 9.05% per annum. Relief
20. In view of the above, suit of plaintiff is accordingly decreed with cost against the defendant for a sum of Rs.3,28,200/- along with 9% interest w.e.f. 01.01.2023 (as per last payment made on 22.12.2022). Lawyer's fees is assessed as Rs.25,000/-.
21. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge, Commercial Court -03 Shahdara District, KKD Delhi/30.07.2024 CS Comm No.193/2024 page 6 M/s DC Agencies Private Ltd. Vs. M/s Medicart E-Commerce India Private Ltd. Through its representative Neeraj Rastogi