Delhi District Court
Shri Arjun Kohli vs M/S Kalakaumudi Publications Pvt. Ltd on 30 September, 2022
In the Court of Shri Anuj Kumar Singh : Additional Senior Civil
Judge of Central District at Tis Hazari Courts, Delhi
Suit No.95792/2016
CNR No.DLCT030006742014
In the matter of :-
Shri Arjun Kohli
S/o Shri J.N. Kohli,
Prop. M/s Integra Graphics,
R/o 76A, Rani Jhansi Road,
New Delhi-110055
........Plaintiff
VERSUS
1. M/s Kalakaumudi Publications Pvt. Ltd,
Through its Directors,
Kumarapuram Medical College,
P.O. Trivandrum, Kerala
2. Shri M.S. Mani, Director
M/s Kalakaumudi Publications Pvt. Ltd.
Kumarapuram Medical College,
P.O. Trivandrum, Kerala
3. Shri. Sukumaran Mani
Managing Director Cum Director
M/s Kalakaumudi Publications Pvt. Ltd.
Kumarapuram Medical College,
P.O Trivandrum, Kerala
.....Defendants
Date of institution : 02.07.2014
Reserved for Judgment : 29.08.2022
Date of decision : 30.09.2022
CS No. 95792/2016 Page no. 1 of 11
Suit for Recovery for a sum of Rs.2,59,640/- along with Pendentelite and
Future Interest
JUDGMENT
1. This is a suit for recovery for a sum of Rs.2,59,640/- (Rupees Two Lacs Fifty Nine Thousand Six Hundred Forty Only) along with pendent- elite and future interest at the rate of 24% per annum from the date of filing of the suit till its realization filed by the plaintiff against the defendant.
Plaintiffs' Case
2. The brief facts of the case of the plaintiff as averred in the plaint are that the plaintiff is running a business under proprietorship firm under the name and style of "M/s. Integra Graphics" having its office mentioned in the title of the suit. It is stated that Sh. Sanjay Khanna is working as Manager with the plaintiff's firm and he is well conversant with the facts of the case and is S.P.A holder of the plaintiff who has been authorized to sign, file and prosecute the present suit for and on behalf of the plaintiff. It is stated that the plaintiff deals in the business of printing materials and allied items. The defendant no.1 is a private limited company and the defendants No.2 and 3 are its Directors, who are looking after, managing and supervising all the day to day activities and affairs of the defendant no.1 and, as such, they are jointly and severally liable for all such acts, deeds and things done by them for and on behalf of the defendant no.1. It is further stated that defendant no.1 through the defendants no.2 and 3 during the course of business used to purchase the printing goods/material from the plaintiff on credit and for this purpose, the defendants opened a mutual current account with the plaintiff.
CS No. 95792/2016 Page no. 2 of 11
3. It is further averred in the plaint that as per the request of the defendant, the plaintiff opened a running and mutual account with regard to the goods taken by the defendants from the plaintiff from time to time as well as the payments made by them on account to the plaintiff and the plaintiff from time to time used to inform and supply the copy of the statement of accounts about the accounts maintained by the plaintiff with regard to the dealings with the defendants and to give "C" forms to the plaintiff. The defendants issued a cheque of Rs.30,000/- (Rupees Thirty Thousand only) bearing No.364862 drawn on State Bank of Travancore, Main Branch, Travancore, Trivandrum, which was dishonoured on account of exceeding arrangements on 13.04.2012 and which was in discharge of part liability and being the part payment. It is stated that plaintiff got issued a notice dated 07.05.2012 (wrongly mentioned as "07.05.2014" in the plaint) through Sh. Praveen Suri, Advocate. As per the statement of account duly maintained by the plaintiff in its regular course of business, a sum of Rs.1,75,431/- (Rupees One Lac Seventy Five Thousand Four Hundred Thirty One Only) was due against the defendant as on 26.05.2012 as principal amount after adjusting on account payment of Rs.30,000/- which was received by demand draft dated 14.05.2012 drawn of State Bank of Travancore payable at Delhi after receipt of notice dated 07.05.2012. Besides a sum of Rs.19,598/- (Rupees Nineteen Thousand Five Hundred Ninety Eight Only), the defendants have also became liable to pay 2% CST expenses to the plaintiff, but the defendants failed to issue the said "C" Forms but now the defendants has cleared as last "C" Form has been received on 13.06.2014. It is stated that the plaintiff has been regularly approaching the defendants and requesting them to clear the aforesaid outstanding amount, but they have been postponing the matter on one or CS No. 95792/2016 Page no. 3 of 11 other pretext despite passing of considerable period. It is clear that from above conduct of the defendants that their intentions have become dishonest and for this reason, they have been delaying in making the payment to the plaintiff. It is stated that the defendants have failed to clear the amount of Rs.2,59,640/- (Rupees Two Lacs Fifty Nine Thousand Six Hundred Forty Only) to the plaintiff despite all the requests, reminders of the plaintiff made in this regard. Hence, the present suit.
Defendants' Case
4. Joint written statement has been filed on behalf of defendants wherein it has been contended that this Court has no territorial jurisdiction over the subject matter. It is stated that the office of Defendants are situated in Trivandrum and the directors of the company are residing and working for gain in Kerala. It is stated that goods allegedly supplied by the plaintiff in Kerala and no part of cause of action arose within the jurisdictional limit of this Court. It is stated that the plaintiff has no other office than at Pondicherry. It is stated that defendants no. 2 and 3 are not personally liable for the acts of the company, as such, defendants no. 2 and 3 are illegally added as party array in the suit and they are liable to be omitted from the suit. It is stated that the defendant is a reputed publisher and M/s. Integra Graphics supplier of components and parts of offset printing machines. In 2010, defendant supplied offset printing machine from USA. The engineer of the plaintiff visited the premises of the defendants and installed the machine, however problems started recently in the operation of the machine and on thorough check up, it was revealed that the software installed in the machine for the operation was not original but pirated. It is CS No. 95792/2016 Page no. 4 of 11 stated that a dispute surfaced with the plaintiff regarding the pirated software and the defendant have to secure damages from the plaintiff. The present suit is counter blast to the discovery by the defendants that the software was pirated. It is stated that the defendant no.1 had purchased certain goods, however there is no current account between parties and there was no mutual transaction at all since plaintiff supplied and defendant no.1 received certain goods and service and there was no reciprocal transitions. It is denied that during the business transaction, Rs.1,75431/- became due on the part of the defendants payable to the plaintiff as on 26.05.2012. It is stated that amount of Rs.30,000/- is not the part of payment of the amount claimed by the plaintiff in the instant suit. It is denied that the defendants are liable to pay Rs.19,598/- towards CST expenses. There is no basis for the claim of 24% interest on the principal amount and the plaintiff is not entitled for the same. It is denied that the defendants are liable to pay Rs.2,59,640/- to the plaintiff as principal amount with interest. It is denied that the defendants placed order for goods in Delhi to the plaintiff. The defendants have denied the other allegations of the plaint and have prayed for dismissal of the suit with cost.
5. Replication has been filed by the plaintiff to the written statement of the defendants wherein the contents of the plaint have been reiterated and the contentions of the defendants in its written statement have been denied except the admissions made.
Issues CS No. 95792/2016 Page no. 5 of 11
6. After completion of pleadings, vide order dated 28.04.2016 and 03.11.2016 the following issues were framed by my learned Predecessor for trial :
1 Whether the plaintiff is entitled to the decree for a sum of Rs.2,59,640/- OPP 2 Whether the plaintiff is entitled to any interest? If so at what rate and for what period? OPP
3. Whether the present court has no jurisdiction to try the present suit? OPD
4. Relief.
Plaintiff's Evidence
7. The plaintiff has examined Shri Sanjay Khanna, Manager and Attorney of Plaintiff as PW1, who in his affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon following documents :
i. Ex. PW-1/1 is Power of Attorney dated 30.05.2014. ii. Ex. PW-1/2 is statement of accounts for the period 01.04.2011 till 10.10.2012.
iii. Ex. PW-1/3 (colly) is copy of details of C Forms F & EI Forms for the period 01.04.2010 to 31.03.2011 iv. Ex. PW-1/4 is copy of retail invoice no.69 dated 07.05.2011 along with GR v. Ex. PW-1/5 is copy of retail invoice no.83 dated 11.05.2011 along with GR vi. There is no document on record as mentioned as ExPW1/6 in evidence affidavit (Ex.PW1/A).
CS No. 95792/2016 Page no. 6 of 11 vii. Ex. PW-1/7 to Ex.PW1/13 are copy of notice dated 07.05.2012 along with postal documents. viii. Ex. PW-1/14 is copy of letter dated 15.05.2012 issued by defendant.
During examination-in-chief, the witness PW1 also relied upon the following documents which are not mentioned in evidence affidavit (Ex.PW1/A) but part of the judicial record.
a. Ex. PW-1/15 is cheque no.364862 dated 31.03.2012 along with cheque return memo dated 13.04.2012.
b. Ex. PW-1/16 is copy of demand draft bearing no.316713 dated 14.05.2012.
c. Ex. PW-1/17 (colly) are copy of certificate of plaintiff concern running into five pages.
d. Ex. PW-1/18 (colly) are Ledger Account maintained by the plaintiff concern pertaining to the defendant running into 7 pages. e. Ex. PW-1/19 (colly) are the invoices raised by the plaintiff concern along with their respective G.R. pertaining to the defendant running into 16 pages.
f. Ex. PW-1/20 (colly) are vouchers and invoices pertaining to Safe Express being the transporter of the plaintiff concern running into 8 pages.
8. The right of the defendants to cross-examine PW1 was closed due to their non-appearance vide order dated 24.01.2020. Plaintiff's evidence was also closed on 24.01.2020 and matter was adjourned for defendant's evidence.
CS No. 95792/2016 Page no. 7 of 11 Defendant's Evidence
9. No evidence has been led on behalf of the defendants despite granting more than sufficient opportunities. Accordingly, DE was closed vide order dated 19.02.2022.
10. Final arguments have been heard. I have gone through the judicial record.
11. Now I shall give my issue-wise findings.
Issue No. 3 : Whether the present court has no jurisdiction to try the present suit? OPD
12. As per the evidence of plaintiff, plaintiff deals in business of printing material and allied items at M/s. Integra Graphics having its office at 76A, Rani Jhansi Road, New Delhi-110055 and defendant no.1 through defendants no. 2 and 3 used to purchase printing goods material on credit basis. Plaintiff also placed on record statement of account and retail invoice and other documents in support of his claim. Though the onus to prove this issue was on defendant, but defendant did not lead any evidence. The case of plaintiff remain unchallenege and unrebutted. Illustration (a) of Section 20 CPC is as follows:
"(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business."
CS No. 95792/2016 Page no. 8 of 11
13. Since the defendants used to purchase the goods material from the plaintiff who was carrying on business at the above mentioned address by virtue of Section 20 CPC, the plaintiff have the option of instituting suit at Delhi as well as at Trivendrum, Kerala. Accordingly, the present issue is decided in favour of the plaintiff and against the defendants.
Issue no.1 : Whether the plaintiff is entitled to the decree for a sum of Rs.2,59,640/- OPP Issue no.2 : Whether the plaintiff is entitled to any interest? If so at what rate and for what period? OPP
14. Both the issues are being taken up together being interconnected and require common appreciation of evidence. The onus to prove these issues were upon the plaintiff. In order to prove the same, the plaintiff proved the documents i.e. Power of Attorney dated 30.05.2014 (Ex.PW1/1), statement of accounts for the period 01.04.2011 till 10.10.2012 (Ex. PW-1/2), copy of details of C Forms F & EI Forms for the period 01.04.2010 to 31.03.2011 (Ex. PW-1/3), copy of retail invoice no.69 dated 07.05.2011 along with GR (Ex. PW-1/4), copy of retail invoice no.83 dated 11.05.2011 along with GR (Ex. PW-1/5), copy of notice dated 07.05.2012 along with postal documents (Ex. PW-1/7 to Ex.PW1/13), copy of letter dated 15.05.2012 issued by defendant (Ex. PW-1/14).
15. During examination-in-chief, the witness PW1 also relied upon the certain documents which are not mentioned in evidence affidavit (Ex.PW1/A) but part of the judicial record. Cheque no.364862 dated 31.03.2012 along with cheque return memo dated 13.04.2012 (Ex. PW-
CS No. 95792/2016 Page no. 9 of 11 1/15), copy of demand draft bearing no.316713 dated 14.05.2012 (Ex. PW- 1/16), copy of certificate of plaintiff concern running into five pages (Ex. PW-1/17 colly), Ledger Account maintained by the plaintiff concern pertaining to the defendant running into 7 pages (Ex. PW-1/18 colly), invoices raised by the plaintiff concern along with their respective G.R. pertaining to the defendant running into 16 pages (Ex. PW-1/19 colly), vouchers and invoices pertaining to Safe Express being the transporter of the plaintiff concern running into 8 pages (Ex. PW-1/20). The right of the defendants to cross-examine PW1 was closed due to their non-appearance vide order dated 24.01.2020. Even no evidence has been led on behalf of the defendants despite granting more than sufficient opportunities. Accordingly, DE was closed vide order dated 19.02.2022. Hence, the testimony of PW1 remained unrebutted and unchallenged which is proved as per law and plaintiff proved that an amount of Rs.1,75,431/- was due on behalf of the defendants. Though there is a clause in the invoice that interest would be charged on the unpaid purchase at the rate of 24% per annum from the date of invoice, however no agreement proved on behalf of the plaintiff showing that defendants agreed for the same. Accordingly, these issues are decided in favour of the plaintiff and against the defendants.
Relief
16. In view of my issue wise findings, the suit of the plaintiff is decreed and following reliefs are granted in favour of the plaintiff and against the defendant :
CS No. 95792/2016 Page no. 10 of 11 i. A decree for Recovery of Rs.1,75,431/- (Rupees One Lac Seventy Five Thousand Four Hundred Thirty One Only) along with simple interest at the rate of @ 9% per annum from 27.05.2012 till its realization.
ii. Cost of the suit.
17. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
ANUJ Digitally signed
by ANUJ KUMAR
KUMAR SINGH
Announced in the Open Court Date: 2022.09.30
on 30.09.2022 SINGH 17:53:15 +0530
(Anuj Kumar Singh)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No. 95792/2016 Page no. 11 of 11