Delhi District Court
) Smt. Surinder Khullar vs Free Polio Surgical & Research ... on 15 November, 2011
Suit No. 187/04 - 1- Date : 15.11.2011
IN THE COURT OF SH. ABHILASH MALHOTRA
CIVIL JUDGE, (CENTRAL-02), TIS HAZARI COURT, DELHI.
Suit No. 187/04
In the matter of :-
1) Smt. Surinder Khullar
W/o Sh. R.K. Khullar,
Sole Proprietor,
M/s. Asia Surgical Industries,
Khasra No. 38, Gali No. 1,
Village Dabri,
P.O. Palam,
New Delhi - 110045.
2) M/s Asia Surgical Industries,
Through: Smt. Surinder Khullar,
Sole Proprietor
W/o Sh. R.K. Khullar,
Khasra No. 38, Gali No. 1,
Village Dabri,
P.O. Palam,
New Delhi - 110045.
.....Plaintiffs
Versus
Free Polio Surgical & Research Foundation,
Through its Managing Trustee,
Dr. S.V. Adinarayana Rao,
D.No. 14-3-18, Maharanipeta,
Visakhapatnam - 530002.
......Defendant
Date of Institution: 20.12.2004
Date of Reserving for Judgment: 05.11.2011
Date of Judgment: 15.11.2011
Pages :1/5
Suit No. 187/04 - 2- Date : 15.11.2011
EX PARTE JUDGMENT
1.The present suit was dismissed by my Ld. Predecessor by judgment dated 17.11.2005. The said judgment was challenged by the plaintiff before the Appellate court and the Appellate court of Sh. Rakesh Kapoor, ADJ in RCA no. 86/05 by its judgment dated 22.11.2006 set aside the said judgment and the case was remanded back to this court. Plaintiff was given an opportunity to produce original documents which were not filed by him earlier and defendant was given an opportunity to file written statement.
2. After the case has been remanded back to this court the defendant was given many opportunities to file his written statement and on failure of the defendant to put up appearance, defendant was proceeded ex parte by order dated 19.05.2007 passed by my Ld. Predecessor.
3. The present suit has been filed by plaintiff seeking recovery of Rs. 1,90,000/- from the defendant. It is stated in the plaint that defendant placed an order for supply of hospital furniture to the plaintiff on 07.02.2003. Plaintiff supplied the goods to the defendant vide bill no. 089 for a sum of Rs. 3,28,267.50. Defendant made a payment of Rs. 2,00,000/- to the plaintiff and the balance of Rs. 1,28,267.50 remained outstanding. It is stated that the plaintiff also paid transport charges of Rs. 12,840/- on behalf of the defendant. Plaintiff made various requests to the defendant to clear the outstanding amount but the defendant instead of Pages :2/5 Suit No. 187/04 - 3- Date : 15.11.2011 clearing its account cancelled the remaining orders of the plaintiff. Plaintiff is also claiming interest @ 18% p.a. i.e. Rs. 46,692.50 and Rs. 2,200/- towards notice charges. Plaintiff has issued legal notice dated 13.07.2004 to defendant demanding outstanding amount. The said notice was replied by defendant by reply dated 23.08.2004. On failure of the defendant to clear the outstanding balance the present suit has been filed.
4. Despite various opportunities defendant has failed to file any written statement in present case. Plaintiff has examined PW1 Sh. Parduman Khullar who has proved the documents Ex. PW1 to Ex. PW8. After remanding back of the case plaintiff brought on record some other documents as directed by Appellate court. The said documents were proved on by Sh. Praduman Khullar as Ex. PW9 to Ex. PW12.
5. Ex. PW1 is Power of Attorney in favour of Sh. Parduman Khullar. Ex. PW2 is legal notice dated 13.07.2004 directing the defendant to clear the outstanding amount. Ex. PW3 and Ex. PW4 are the postal receipts. Ex. PW5 are letter dated 12.08.2003 requesting the defendant to clear the amount of bill no. 089 and 090 for a sum of Rs. 3,41,107.50/-. Ex. PW6 is letter dated 21.12.2002 written by defendant company to the plaintiff sending a cheque of Rs. 2,00,000/- as an advance for beds, cots and trolleys for order no. 165 dated 09.12.2002. Ex. PW7 is bill no. 089 dated 07.02.2003 for a sum of Rs. 3,28,267.50/-. Ex. PW8 is bill no. 096 dated 07.02.2003 raising freight charges of Rs. 12,840/-. Ex. PW9 is order form Pages :3/5 Suit No. 187/04 - 4- Date : 15.11.2011 dated 9.12.2002 showing the supply of various items. Ex. PW10 is reply to legal notice dated 23.08.2004 issued by the defendant. The defendant in para 2 of its reply has admitted placing of order for hospital furniture on 07.02.2003 and also admitted receipt of the some material however the only contention raised in this reply by the defendant is that goods of value of Rs. 3,28,267.50/- have not been supplied and only part of the material has been sent. It is stated that the defendant has paid Rs. 2,00,000/- towards the material supplied and question of payment for the material not supplied does not arise. Para 2 of the said notice is reproduced below :
"It is true that my client placed an order for the supply of hospital furniture on 07.02.2003 and that accordingly your client had supplied some material. However, it is absolutely incorrect to state that your client supplied material of a value of Rs. 3,28,267.50 ps. In this connection my client instructs me to inform you the entire material ordered was not sent and only part of the material was sent and therefore my client paid a sum of Rs. 2,00,000/-. In view of the fact that the balance material was not supplied, the question of payment of a sum of Rs. 1,41,107.50 ps. does not arise. In this connection my client also instructs me to inform you that the allegations in para IV of your notice are false and incorrect. My client did not even open the hospital by 6.3.2000."
Ex. PW11 are letter dated 06.07.2003 cancelling the order of the plaintiff.
6. Perusal of the documents and especially reply of legal notice dated 23.08.2004 i.e. Ex. PW10 clearly shows that the defendant admitted that goods were supplied by plaintiff to defendant company. Ex. PW7 and Ex. PW8 clearly shows that the goods were supplied and invoice towards the supply of goods and freight charges were raised by defendant to the tune of Rs. 3,28,267.50/- and Rs. 12,840/- respectively. The documents on Pages :4/5 Suit No. 187/04 - 5- Date : 15.11.2011 record and averments made in the plaint have remained unrebutted. It is clear from the documents on record that plaintiff has supplied goods worth Rs. 3,28,267.50/- to the defendant towards which only a payment of Rs. 2,00,000/- has been made by defendant and a sum of Rs. 1,28,267.50/- is outstanding. It is also clear that Rs. 12,840/- is also outstanding towards transportation charges. Defendant has failed to lead any evidence to rebutt the contentions of plaintiff and show complete goods were not supplied. In these circumstances plaintiff has been able to discharge his onus. Plaintiff is claiming interest on Rs. 46,692.50 @ 18% p.a. I am not inclined to award such an exorbitant interest. The said interest is reduced to 6% p.a. i.e. Rs. 15,564/-. Therefore plaintiff is awarded Rs. 1,28,267.50/- towards the outstanding payment for goods supplied, Rs. 12,840/- towards freight charges and Rs. 15,564/- towards the interest till the filing of the suit. Plaintiff has failed to lead any evidence to show his entitlement to recovery of legal expenses. The said claim is liable to be declined.
A money decree for a sum of Rs. 1,56,671.50/- is passed in favour of plaintiff and against the defendant. Pendentelite future interest @ 6% p.a. is also awarded in favour of plaintiff and against the defendant. Cost of suit is awarded in favour of plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open (Abhilash Malhotra)
court on 15/11/2011 Civil Judge, Central-02
Tis Hazari Courts,Delhi
Pages :5/5