Delhi District Court
M/S Shiva Packaging vs . on 1 May, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE/
GUARDIAN JUDGE / JUDGE SMALL CAUSE COURT: NORTH
EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Presided by: Sh. Sujit Saurabh
Civil Suit No. 469/18
M/s SHIVA PACKAGING
Vs.
M/s POWER INDUSTRIAL COMPANY
M/s Shiva Packaging
Through its proprietor Sh. Nand Kishore Sharma
Office at: A-3/8, West Karawal Nagar,
Delhi-110094 ....... Plaintiff
VERSUS
M/s Power Industrial Company
Through its proprietor Sh. Rohit Mittal
Office at: C-389/90, New Seema Puri,
Delhi-110094 ......Defendant
Date of Institution of the Suit : 13.08.2018
Date of Judgment : 01.05.2023
Decision : Suit decreed
SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL
PROCEDURE, 1908 FOR RECOVERY OF Rs.2,63,267/- (RUPEES
TWO LACS SIXTY THREE THOUSAND TWO HUNDRED AND
SIXTY SEVEN ONLY)
JUDGMENT
1. This is a suit u/O XXXVII of The Code of Civil Procedure, 1908 (in short, 'CPC'). The plaintiff has filed the suit for recovery of CS No. 469/18 M/s Shiva Packaging v. M/s Power Industrial Company 1 Rs.2,63,267/- (Rupees two lakhs sixty three thousand two hundred and sixty seven only) on the basis of three cheques i.e. cheque bearing No.983393, No.983385 and No. 983392, all drawn on PNB, Branch Dilshad Garden, Delhi.
2. Brief facts as set out in the plaint are as follows:
The plaintiff is stated to be proprietorship concern represented by its proprietor Sh. Nand Kishore Sharma, having office at A-3/8, West Karawal Nagar, Delhi-110094. The defendant is also stated to be a proprietorship concern represented by its proprietor Sh. Rohit Mittal, having office C-389/90, New Seema Puri, Delhi. The parties are stated to have very good friendly as well as business relation. In course of business, the defendant placed order for supply of carton boxes and board boxes for packaging (hereinafter referred as to 'goods'). The plaintiff accepted the order and supplied the goods to the defendant. To discharge his outstanding liabilities of Rs.2,63,267/-, the defendant issued following cheques in favour of the plaintiff:
(i) Cheque bearing No.983393 dated 06.03.2018, in sum of Rs.63,267/-, drawn on PNB, Branch Dilshad Garden, Delhi-110095,
(ii) Cheque bearing No.983385 dated 05.12.2017, in sum of Rs.1,00,000/-, drawn on PNB, Branch Dilshad Garden, Delhi- 110095 and
(iii) Cheque bearing No.983392 dated 22.12.2017, in sum of Rs.1,00,000/-, drawn on PNB, Branch Dilshad Garden, Delhi-
110095.
On presentation, all the three cheques were returned unpaid with remark 'Funds insufficient' vide separate cheque returning memo dated 07.03.2018, 27.12.2017 and 07.12.2017. Thereafter, the plaintiff CS No. 469/18 M/s Shiva Packaging v. M/s Power Industrial Company 2 served legal demand notice dated 09.05.2018 through email and legal notice dated 23.07.2018 through registered post to the defendant. Despite service of the notices, the defendant did not reply to the notices. On these averments, the plaintiff has filed the instant suit for recovery of Rs.2,63,267/- (Rupees two lakhs sixty three thousand two hundred and sixty seven only).
3. I have heard Ld. Proxy counsel for the plaintiff.
4. Vide order dated 13.08.2018, summons in prescribed form were issued to the defendant which were served on 28.08.2018. Despite service of summons, the defendant did not enter appearance within prescribed period of 10 days. As per order dated 25.09.2018, the defendant filed an application for entering his appearance which was taken on record. Vide order dated 25.10.2018, the suit was dismissed-in-default for non appearance.
The plaintiff filed an application u/O 9 rule 9 of CPC for restoration of the suit to its original number and position. The application was dismissed vide order dated 23.03.2019. The plaintiff challenged the order dated 23.03.2019 by way of appeal. Vide order dated 06.02.2020, passed by the then Ld. District and Sessions Judge, North-East, KKD Courts, Delhi, the order dated 23.03.2019 was set-aside and the suit was ordered to be restored. Accordingly, vide order dated 13.03.2020, passed by Ld. Predecessor court, the suit was restored to its original number.
5. Summons for judgment was served upon the defendant on 16.07.2022. On 23.08.2022, an application u/O XXXVII rule 3 (5) r/w Section 151 of CPC was filed on behalf of the defendant for grant of leave CS No. 469/18 M/s Shiva Packaging v. M/s Power Industrial Company 3 to defend the suit. However, none appeared on behalf of the defendant on the date fixed for the matter. As per order dated 11.01.2023, Ld. Proxy counsel appearing on behalf of the plaintiff submitted to the court that copy of the application for leave to defend had not been supplied to the plaintiff. Due to absence of the defendant, copy of the application could not be supplied to the plaintiff. For reasons recorded in the order dated 11.01.2023, matter was adjourned and the defendant was burdened with cost of Rs.1000/- to be paid to the plaintiff. On the next date again, none appeared on behalf of the defendant. For reasons recorded in the order, last opportunity was granted to the defendant for compliance of order dated 11.01.2023 and to press on the application for leave to defend. The defendant was again burdened with cost of Rs.2000/- to be paid to the plaintiff. For clear appreciation of facts of the matter and the conduct of the defendant, order dated 10.03.2023 is reproduced herewith:
"CS No. 469/18SHIVA PACKAGING Vs. POWER INDUSTRIAL COMPANY 10.03.2023 Present: Sh. Aakash Gupta, Ld. Proxy counsel for the plaintiff.
None for defendant.
It is submitted by Ld. Proxy counsel for the plaintiff that the defendant has not supplied copy of the application for leave to defend. He has stated that cost dated 11.01.2023 has also been not paid by the defendant.
File perused.
Last opportunity is granted to the defendant for compliance of order dated 11.01.2023 and to press on the application for leave to defend. Matter is adjourned. The defendant is imposed with further cost of Rs.2000/- (rupees two thousand only) to be paid to the plaintiff.
List on 01.05.2023.
(Sujit Saurabh) JSCC/ASCJ/G. Judge(N/E) 10.03.2023"
Cost dated 11.01.2023 and 10.03.2023 remains unpaid.
CS No. 469/18 M/s Shiva Packaging v. M/s Power Industrial Company 4
6. The application filed on behalf of the defendant for leave to defend the suit has been dismissed vide order of even date as being not pressed.
7. The plaintiff has filed following documents in support of his claim:
(i) Cheque bearing No.983393 dated 06.03.2018, in sum of Rs.63,267/-, drawn on PNB, Branch Dilshad Garden, Delhi- 110095,
(ii) Cheque bearing No.983385 dated 05.12.2017, in sum of Rs.1,00,000/-, drawn on PNB, Branch Dilshad Garden, Delhi- 110095,
(iii) Cheque bearing No.983392 dated 22.12.2017, in sum of Rs.1,00,000/-, drawn on PNB, Branch Dilshad Garden, Delhi- 110095,
(iv) Cheque return memos dated 07.03.2018, 07.12.2017, 27.12.2017 and 16.02.2018 (It appears that the cheque bearing No.983385 was presented twice and same was returned unpaid vide cheque return memo dated 07.12.2017 and 27.12.2017).
(v) Copy of tax invoice dated 25.10.2017 and 05.08.2017 and
(vi) Copy of legal notice dated 23.07.2018.
8. Since the application for leave to defend the suit has been dismissed, it amounts to refuse the leave. As per order XXXVII rule 3(6)(a) of CPC, the plaintiff is entitled to judgment forthwith.
9. The plaintiff has claimed interest @ 18% per annum from the date of filing of the suit till realization of the decreetal amount. In my considered opinion, the rate of interest as claimed by the plaintiff is exorbitant. Even though the transaction is commercial in nature, considering the bank rate and prevailing economic situation, interest @ 14% per annum would meet the ends of justice.
CS No. 469/18 M/s Shiva Packaging v. M/s Power Industrial Company 5
10. Accordingly, the suit of the plaintiff is decreed. The defendant is held liable to pay Rs.2,63,267/- (Rupees two lakhs sixty three thousand two hundred and sixty seven only) along with simple interest @ 14% per annum from the date of institution of the suit till realization of the decretal amount.
11. Cost of the suit is awarded in favour of the plaintiff and against the defendant.
12. Deficient Court fee, if any be paid by the plaintiff before execution of the decree. Copy of the decree sheet shall be supplied to the plaintiff only after payment of deficient Court fee, if any.
13. Decree sheet be drawn in terms of the relief granted.
Digitally signed by SUJIT SUJIT SAURABH
SAURABH Date: 2023.05.01
17:16:44 +0530
Announced in the open court (SUJIT SAURABH)
today i.e. 01.05.2023 ASCJ/GJ/JSCC-North East
Karkardooma Courts, Delhi
01.05.2023
CS No. 469/18 M/s Shiva Packaging v. M/s Power Industrial Company 6