Delhi District Court
Suresh Tripathi vs Abs Engineering Works on 1 April, 2025
Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
DLCT010001132024
IN THE COURT OF SH. DEEPAK GARG,
DISTRICT JUDGE-COMMERCIAL COURT-09
(CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI.
CIVIL SUIT (COMMERCIAL) NO.:- 27/2024
IN THE MATTER OF :-
Sh. Suresh Tripathi
Proprietor of M/S Om Sai Electricals
Regd. Off. At: E-28 5th Pusta Gali No. 1,
Sonia Vihar, Delhi 110094
Also Sales Office: 5273, 2nd Floor,
Opp. Dena Bank, G.B. Road, Delhi 110006
....Plaintiff
VERSUS
1.M/S ABS Engineering Works Through its Partner/Authorized Persons(s)
2. Akhilesh Dubye Partner of M/S ABS Engineering Works
3. Bhupendra Shahi Partner of M/S ABS Engineering Works All at: Shop No. 1, Harphala Road, Near Gopal Ji Diary Sikri, Ballabhgarh, Faridabad, Haryana, 121004 ....Defendants CS (COMM)No. 27/24 Page 1 of 21 Digitally signed by DEEPAK DEEPAK GARG GARG Date:
2025.04.01 15:59:42 +0530 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
SUIT FOR THE RECOVERY OF RS.8,91,753/- AS A PRINCIPAL AMOUNT AND RS. 84,738/- AS INTEREST FROM 01.01.2023 TO TILL DATE @ 18% PA TOGETHER WITH PANDENTELITE AND FUTURE INTEREST @ 24% PA Date of institution : 04/01/2024 Date on which Judgment was reserved: 17/03/2025 Date of Judgment : 01/04/2025 ::- J U D G M E N T -::
1. By way of present judgment, this court shall adjudicate upon suit filed by the plaintiff against the defendants for recovery of principal amount Rs.8,91,753/- alongwith interest of Rs.84,738/- from 01.01.2023 along with pendent elite and future interest @ 24% per annum.
PLAINTIFF'S CASE
2. Brief facts necessary for just adjudication of the present suit, as stated in the plaint, are as under:-
i. The plaintiff is proprietor of M/s Sai Enterprises having registered office at the abovesaid address and is engaged in the business of manufacturing and marketing.CS (COMM)No. 27/24 Page 2 of 21
Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
ii. The defendant no. 1 is a partnership concern and defendants no. 2 & 3 are partners of the defendant no. 1.
iii. The defendants approached the plaintiff for purchase of various goods and products and represented that it had a very large requirement of materials and thus impressed upon the plaintiff to supply them goods and further greed to extend them credit period. From time to time defendants placed purchased orders on the plaintiff at Delhi and consequently plaintiff supplied motors, cable and penal accessories to the defendants through various invoices/bills dated 31.10.2020 to 05.11.2020 for a total sum of Rs.19,07,025/- raised by the plaintiff.
iv. Initially the defendants made quick payments on due dates but in part & on account basis and usually each payment was accompanied with a demand for further supply of goods. Thus the account of the defendants was increasingly heading towards high debt.
v. The defendants made only part payment of Rs.8,00,000/- and withheld the remaining amount. The plaintiff made several requests and reminders but the defendants did not respond to CS (COMM)No. 27/24 Page 3 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
the same. In compelling circumstance, the plaintiff issued legal demand notice twice and after receiving the first notice dated 28.10.21, the defendants paid Rs.50,000/- on 02.12.21;
Rs.50,000/- on 03.12.21 & Rs.50,000/- on 23.02.21 and after making this payment of Rs.1,50,000/-, defendants again stopped making the payment. The plaintiff again send another notice dated 13.09.22 to defendants and after service of the same, the defendants made part payment to the plaintiff i.e. Rs.25,000/- on 25.11.22, Rs.25,000/- on 24.11.22 and Rs.1,00,000/- on 25.01.23.
vi. The plaintiff again reconciled the account maintained in his office and came to know that an amount of Rs.8,07,025/- is due & outstanding against the defendants and defendants are also liable to pay a sum of Rs.84,738/- as interest @ 18% per annum (from 01.02.2023 till 31.07.2023) on the said amount as agreed between the parties. Hence, the defendants are liable to pay a total sum of Rs.8,91,753/- to the plaintiff. The defendants are also liable to pay pendete lite and future interest @ 24% per annum. Hence, the plaintiff has filed the present suit against the defendants.
CS (COMM)No. 27/24 Page 4 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
DEFENDANT'S CASE
3. In the written statement, the defendants have averred that no transaction has taken place between the plaintiff & the defendants within the territorial jurisdiction of this Court. It is submitted that the plaintiff used to receive the order of the material from the defendants at Faridabad and used to supply the material at Faridabad and hence this Court does not have territorial jurisdiction to try this case.
4. The defendants have further submitted that the material supplied by the plaintiff was of sub-standard quality and was found defective and when the defendants supplied the same to its customers in market, the defendants received complaint from its customers. Due to this, the defendants suffered loss of reputation in the market and his goodwill was tarnished and the money of the defendants also held up in the market. Inspite of that, the defendants made the payment of Rs. Four Lakh in cash and also payments through bank to the plaintiff. It is further averred that the statement of account of the plaintiff is wrong as it does not reflect the payment of Rs.4,00,000/- made in cash.
5. It is further submitted that the defendants informed to the plaintiff tele-
phonically about the defective material & complaints received by it from its customers and plaintiff ensured that the plaintiff would compensate the CS (COMM)No. 27/24 Page 5 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
defendants for his loss in the market and it was settled between the parties that both parties under the circumstances have to bear the loss and whole account was settled and nothing remained due against each other.
6. The defendants have denied the receipt of notices dated 28.10.21 and 13.09.22 allegedly sent by the plaintiff to them. It is further denied that any interest amount was ever agreed to be paid by the defendants to the plaintiff.
7. The defendants have also denied the service of legal notices dated 28.10.21 and 13.09.22 upon them or that there is any outstanding balance of Rs.8,91,753/- payable by the defendants and in totality it is prayed that the present suit is liable to be dismissed.
REPLICATION
8. Plaintiff has filed the replication controverting the allegations of the defendants in the written statement and the contents of the plaint has been reiterated and reaffirmed.
ISSUES
9. On the basis of the pleadings following issues were settled on 13.09.2024 :
CS (COMM)No. 27/24 Page 6 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
(i). Whether the plaintiff is entitled for the recovery of the amount as claimed in the plaint? (OPP)
(ii). If the issue no. (i) is decided in affirmative, whether the plaintiff is entitled for the pendente-lite and future interest, if so at what rate and for what period? (OPP)
(iii). Relief.
PLAINTIFF'S EVIDENCE
10. Plaintiff has examined himself as PW1 who filed his evidence by way of affidavit ExPW1/A and relied upon documents as under:
i. GST Certificate of plaintiff is ExPW1/A.
ii. GST Certificate for partnership concern of defendants is
ExPW1/B.
iii. Ledger account for defendant is ExPW1/C colly.
iv. Four Invoice with e-way bill are ExPW1/D colly.
v. GST Tax department receipts against bills raised is ExPW1/E.
vi. Legal demand notice dated 28/10/2021 sent by plaintiff to
defendants with postal receipt is ExPW1/F colly. vii. Legal demand notice dated 13/09/2021 sent by plaintiff to defendants with postal receipt is ExPW1/G colly. viii. Various e-mails between plaintiff and defendants regarding demand of outstanding amount are ExPW1/H colly. ix. Non starter report dated 01/11/2023 issued by CDLSA is ExPW1/I colly.
CS (COMM)No. 27/24 Page 7 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
x. Affidavit under Order XI Rule 6 (3) CPC read with Section 65B of Indian Evidence Act is ExPW1/J. DEFENDANT'S EVIDENCE
11. Defendants have examined Sh Bhupendra Sahni, partner of defendant company as DW1 who filed his evidence by way of affidavit ExDW1/A ARGUMENTS HEARD
12. I have heard Ld. Counsel for the plaintiff and defendants and perused the entire record.
ISSUEWISE FINDINGS Issue no 1
(i) Whether the plaintiff is entitled for the recovery of the amount as claimed in the plaint? (OPP)
13. In order to prove its case, the plaintiff Sh. Suresh Tripathi has exam-
ined himself as PW1 and he has categorically deposed that on the basis of the orders placed by the defendants, the plaintiff supplied motors, cable and penal accessories entirely to the satisfaction of the defendants vide CS (COMM)No. 27/24 Page 8 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
four invoices/bills with e-way bills (Ex.PW1/D colly.) and GST Tax de- partment receipts against the said bills raised (Ex.PW1/E). He has also proved the e-mails between the plaintiff and defendants regarding de- mand of outstanding amount (Ex.PW1/H colly.). He has further deposed that as per ledger account Ex.PW1/C (colly.) an amount of Rs.8,07,025/- is due and outstanding against the defendants being principal amount. He has also proved the legal notices dated 28.10.21 and 13.09.21 sent by the plaintiff to the defendants as Ex.PW1/F (colly.) and Ex.PW1/H (colly.).
14. It is relevant here to state that the plaintiff has filed e-way bills in re- spect of relevant invoices which are part of Ex.PW1/D (colly.) in support of its contentions that the goods in question were supplied to the defen- dants.
15. In this regard, it would be relevant to reproduce Rule 138 of SCGST Rules, 2017 as under:-
Rule 138: SCGST Rules, 2017 reads as under:-
138, Information to be furnished prior to commencement of move- ment of goods and generation of e-way bill.-(1) Every registered per- son who cause movement of goods of consignment value exceeding fifty thousand rupees:-
(i) in relation to a supply; or
(ii) for reasons other than supply; or
(iii) due to inward supply from an unregistered person, CS (COMM)No. 27/24 Page 9 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
shall, before commencement of such movement, furnish in- formation relating to the said goods as specified in Part-A of Form GST EWB-01, electronically, on the common portal and a unique number will be generated on the said portal;
Provided that the transporter, on an authorization received from the registered person, may furnish information in Part A of Form GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal:
Provided further that where the goods to be transported are supplied through an e-commerce operator or a courier agency, on an authorization received from the consignor, the informa- tion in Part-A of Form GST EWB-01 may be furnished by such e-commerce operator or courier agency and a unique number will be generated on the said portal:
Provided also that where goods are sent by a principal located in one State or Union territory to a job worker located in any other State or Union Territory, the e-way bill shall be gener- ated either by the principal or the job worker, if registered, ir- respective of the value of the consignment:
Provided also that where handicraft goods are transported from one state or Union Territory to another State or Union Territory by a person who has been exempted from the re- quirement of obtaining registration under clauses (i) and (ii) of section 24, the e-way bill shall be generated by the said person irrespective of the value of the consignment. (11) The details of the e-way bill generated under this rule shall be made available to the-
(a) Supplier, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the recipient of the transporter; or
(b) recipient, if registered, where the information in Part of FORM GST EWB-01 has been furnished by the supplier or the transporter, on the common portal, and the supplier or the recipient, as the case may be, shall communicate his accep-
tance or rejection of the consignment covered by the e-way bill.
CS (COMM)No. 27/24 Page 10 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
(12) Where the person to whom the information specified in sub-rule(11) has been made available does not communicate his acceptance or rejection within seventy two hours of the details being made available to him on the common portal, or the time of delivery of goods whichever is earlier, it shall be deemed that he has accepted the said details.
16. Hence, sub-rule (11) of the above rule provides that the details of the e-way bill shall be made available to the recipient who shall communi- cate his acceptance or rejection of the consignment covered by the e-way bill. Further sub-rule (12) provides that in such cases, if the recipient does not communicate his acceptance or rejection within 72 hours of the de- tails being made available to him on the common portal, or the time of delivery of goods whichever is earlier, it shall be deemed that he has ac- cepted the said details.
17. In the present case, no evidence has been adduced by the defendants to show that inspite of generation of the said e-way bills by the plaintiff in respect of the goods in question showing the defendants as recipient of those goods, the defendant company ever communicated its acceptance or rejection within stipulated period or at any point of time and as such presumption is liable to be drawn in favour of the plaintiff and against the defendants that entire goods sent under all the said e-way bills which are part of Ex.PW1/D (colly.) were delivered to the defendant company.
CS (COMM)No. 27/24 Page 11 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
18. In fact, the factum of supply of goods in question under the said in- voices is not disputed by the defendants.
19. As stated above, it is the case of the defendants that the plaintiff had supplied defective & poor quality of goods and the same were not as per the standard of the orders placed by the defendants and further defendants had made cash payment of Rs. 4 lakhs to the plaintiff which is not re- flected in the ledger filed by the plaintiff.
20. Since the supply of goods in question to the defendants is admitted and the defendants have taken the plea of supply of poor quality of goods and cash payment of Rs. 4 lakhs of the plaintiff, by virtue of 106 of Bhar- tiya Sakshya Adhiniyam, 2023, the entire onus to prove the said aver- ments lies on the defendants.
21. Section 106 of Bhartiya Sakshya Adhiniyam, 2023 provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lies on any particular person.
22. In this regard, it may be noted that the goods were supplied to the de- fendants through various invoices but the defendants have miserably failed to show that the goods of which particular invoice was defective, what was the defect, to what extent and when and how the defendants CS (COMM)No. 27/24 Page 12 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
brought it to the notice of the plaintiff that the poor quality of goods were supplied. It is not the case of the defendants that the goods under all the invoices were of poor quality.
23. The defendants have taken a plea that they started receiving com- plaints regarding the said goods from customer to whom the defendants had further supplied the said goods but it is important to note that the de- fendants have not led any evidence in court in this regard. The defendants have not specified and mentioned the name of those persons/customers to whom the goods were further supplied by them and none of the said cus- tomer have been examined in court as the witness of the defendants.
24. There is merit in the contention of counsel for the plaintiff that if the defendants were not specified with the quality of the goods supplied, what prevented them to make any written communication with the plain- tiff. Admittedly, there is no such written communication made by the de- fendants with the plaintiff.
25. Ld. Counsel for the plaintiff has submitted that the ledger account of the plaintiff ExPW1/C clearly shows that the goods were supplied to the defendants in the year 2020 and the defendants made part payments from 2020 till 24.01.2023 and if the defendants were not satisfied with the quality of good received or if the goods were of inferior quality then why they continued making the payment till 25.01.2023 i.e. even after much CS (COMM)No. 27/24 Page 13 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
time of receiving of goods in question. There is merit in this argument as well.
26. Another important aspect which assumes significance in the overall facts and circumstances of the case is that it is not the case of the defen- dants that goods supplied by the plaintiff were completely worthless or of no value. Even if according to them the goods were of inferior quality, the defendants should have filed their calculation of the amount of the value of goods received by them according to their estimate but they have failed to do so. The defendants have not disclosed the amount of which they had to suffer the loss, if any. In respect of the goods supplied the plaintiff has claiming balance amount of Rs.8,07,025/- in the present case, (as per ledger) and in my view, the entire claim of the said amount cannot be blankly rejected by the defendants by taking the vague and un- supported plea of supply of bad quality of goods.
27. Regarding the cash payment, I may note that the defendants have not led any evidence in the court as to whom the cash payment of Rs. 4,00,000/- was made and whether it was to the plaintiff or to any of his representative. Further it is not specified as to in whose presence and at which place the said payment was made and whether the said payment was made in one go or on more than one occasion. DW1 Sh. Bhupendra Shahi in his affidavit evidence is completely silent about the said aspect.
CS (COMM)No. 27/24 Page 14 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
Further the defendant company in his written statement is also silent on the said issue.
28. Further it is also relevant to state that the defendants have not filed any document in support of its case including its statement of account, ledger or any other document showing cash payment to the plaintiff or any such entry in the accounts of the defendants. DW1 Sh. Bhupendra Shahi had admitted in his cross examination that the defendants have not filed any document in this case to show the said payment of Rs. 4 lakhs to the plaintiff. He has further admitted that defendants have not filed any ledger account in this case. If the amount was paid in cash, the defen- dants could have filed its ledger clearly reflecting the dates of such pay- ment but no such document has been filed by the defendants. Hence, in totality, the plea of making cash payment is bald assertion and the defen- dants have failed to prove the same and this plea remains unsubstantiated.
29. The defendants have failed to prove the same and has taken bald plea.
30. Under Section 104 of Bhartiya Sakshya Adhiniyam, 2023, the defen- dant is expected to prove its defence and assertions made against the plaintiff, though initial burden to prove is on the plaintiff, but once it is discharged onus shifts on to the other side to disprove the same.
CS (COMM)No. 27/24 Page 15 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
31. In terms of Section 105 of Bhartiya Sakshya Adhiniyam, 2023 the ini- tial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the de- fendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
32. In the present case, the testimony of the witness of the plaintiff is con- vincing and truthful and has remained unimpeachable. It is corroborated by documentary evidence. As stated above, there is nothing in cross ex- amination of PW1 to shake his credit. There is no ground for me to disbe- lieve the same. The defendants have taken bald plea in its defence and has miserably failed to prove its case.
33. After considering all the facts and circumstances, I hold that the plain- tiff has been able to prove its case by preponderance of probability that the goods in question were sold by the plaintiff to defendants and the de- fendants are liable to pay the principal amount of Rs.8,07,025/-.
34. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
CS (COMM)No. 27/24 Page 16 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
ARGUMENTS ADVANCED BY LD. COUNSEL FOR THE DEFEN- DANTS
35. Now, I shall deal with the arguments/objections of the Ld. Counsel for the defendants one by one. The arguments advanced by Ld. Counsel for defendants are primarily as under:
I. WHETHER THIS COURT DOES NOT HAVE THE TERRITORIAL JURISDICTION TO TRY THIS CASE
36. It is case of the defendants that this court does not have the territorial jurisdiction to try this case because the defendant company is situated at Sikri, Faridabad, Haryana 121004 and admittedly the goods were also delivered to the office of the defendant company at Sikri, Faridabad, Haryana 121004 and hence, the suit filed within the jurisdiction of this court is not maintainable.
37. It is submitted by ld. Counsel for the plaintiff that the goods were sold and delivered to the defendants from the shop of the plaintiff situated at 5273, 2nd Floor, Opp. Dena Bank, G.B. Road, Delhi 110006, which is within the territorial jurisdiction of this court and since part cause of action has arisen within the jurisdiction of this court within the meaning of Section 20 (c) CPC, this court has the jurisdiction to try this case.
CS (COMM)No. 27/24 Page 17 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
38. The word 'cause of action' has not been statutorily defined. However, a comprehensive definition of the same emerges from the various judicial pronouncements of the superior courts. The expression 'cause of action' has acquired a judicial settled meaning. 'Cause of action' constitutes the circumstances forming the infraction of the right for the immediate occasion for the action. 'Cause of action' means the bundle of facts, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. In legal parlance, the expression, the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal, a group of operative facts giving rights to one or more basis for suing; a fact or situation that entitles one person to obtain a remedy in court from another person. Reliance is place upon Naveen Chandra N. Majithia vs. State of Maharashtra AIR 2000 SC 2966.
39. The cause of action has to be culled out from the pleadings in the plaint which would be necessary for the plaintiff to prove, in order to obtain a relief from the court. It is settled principle of cause that averments made in the plaint are the GERMANE and the cause of action has to be culled out on a conjoint reading of the entire plaint.
40. In para no. 16 of the plaint, it is averred by the plaintiff that the defendants had placed the purchase order upon the plaintiff at its sales CS (COMM)No. 27/24 Page 18 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
office in Delhi at 5273, 2 nd Floor, Opp. Dena Bank, G.B. Road, Delhi 110006 which is within the jurisdiction of this court.
41. PW1 was cross examined by the Ld. Counsel for the defendants but no question has been asked in the cross examination as to where the purchase order was placed by the defendant to the plaintiff and at which place the contract was concluded.
42. In my view, it is proved that defendants had placed the purchase order upon the plaintiff at its sales office in Delhi situated at 5273, 2 nd Floor, Opp. Dena Bank, G.B. Road, Delhi 110006 from where the goods were supplied to the defendant and the said place is within the jurisdiction of this court. Further the contract also got concluded at the said place.
43. Further it is not the case of the defendants that the place of payment was specified in the transactions between the parties. It is trite law that once no place of payment is specified, the debtor has to seek the creditor and since the creditor/plaintiff is in Delhi, therefore, payment had to be made at Delhi and part of the cause of action arose at Delhi. Hence, this court has the territorial jurisdiction to try the present suit.
CS (COMM)No. 27/24 Page 19 of 21Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
44. Hence, I have no hesitation in holding that this argument of the Ld. Counsel for the defendants has no merit that this court does not have territorial jurisdiction to try this case. This issue is accordingly decided in favour of the plaintiff and against the defendants.
Issue No. 3 :
(iii) If the issue no. (ii) is decided in affirmative, whether the plaintiff is entitled for the pendentelite and future interest, if so at what rate and for what period? (OPP)
45. As far as grant of pendentelite and future interest is concerned, in my view, since defendants have deprived the plaintiff for use of the amount of sold goods and considering the prevalent rate of interest, I grant interest @ 8% per annum on the decreetal amount from the date of issuance of legal notice i.e. 28.10.2021 (ExPW1/F) till the date of decree and thereafter till the realization.
Issue No. 4 :-
(iv) Relief
46. In view of the aforesaid discussions, the suit is decreed in favour of the plaintiff and against the defendants jointly and severally for sum of CS (COMM)No. 27/24 Page 20 of 21 Suresh Tripathi vs. M/S ABS Engineering Works & Ors.
Rs.8,07,025/- with interest @ 8% per annum on the said amount from the date of issuance of legal notice i.e. 28.10.2021 till the date of decree and thereafter till its realization. The plaintiff is also held entitled to costs of the suit.
40. Decree sheet be prepared accordingly.
41. File be consigned to Record Room.
Digitally
signed by
DEEPAK DEEPAK GARG
Date:
GARG 2025.04.01
16:00:07
+0530
Announced in the open Court on (Deepak Garg)
st
this 1 Day of April 2025 Distt. Judge, (Comm. Court)-09, Central District, THC : Delhi CS (COMM)No. 27/24 Page 21 of 21