Delhi District Court
M/S Shree Cement Ltd vs M/S Mayour International on 8 May, 2008
(1)Suit no. 83/07/99
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL DISTRICT JUDGE:DELHI
Suit no. 83/07/99
M/s Shree Cement Ltd.
Through Shri R. K. Bharani,
Senior Manager (Commercial),
Having its office at:-
G-6, Hans Bhawan,
1-Bahaur Shah Zafar Marg,
New Delhi-110002.
.......Plaintiff
versus
1 M/s Mayour International
Ansal Farms, D-2, Satbari
New Chhattarpur Temple,
New Delhi.
2 Mayor International
Village Begumpur, Khatola
Behrampur Road, Jaipur Highway,
Gurgaon Haryana
.......Defendants
Date of institution : 16/7/1999
Date on which the
judgment has been
reserved for orders: 25/4/2008
Date of judgment : 08/5/2008
JUDGMENT
Page no. 1 (2)Suit no. 83/07/99
1. The suit of the plaintiff in brief is that defendants have approached the plaintiff for purchase of cement and the plaintiff supplied the cement and raised invoices/ bills accordingly and the defendants have been making "on account" payments against the invoices submitted by the plaintiff. The plaintiff had been maintaining an Open Current A/c in the name of the defendants in its books of account. The payments made by the defendants were being reflected in the said Account accordingly. Last payment was made on 23/7/1996 when a sum of Rs. 98,472/- was paid by the defendants to the plaintiff and on 24/7/1996 a sum of Rs. 1,99,914/- was legally recoverable from the defendants and the defendants failed to pay the same inspite of repeated requests by the plaintiff. The defendants are liable to pay interest @ 18 % per annum w.e.f 23/07/1996 and till the filing of the suit a sum of Rs. 1,07,954/-has become due on account of interest. The plaintiff has calculated the principal amount and interest which comes Rs.
Page no. 2 (3)Suit no. 83/07/99 3,07,868/-. It is further stated that despite service of legal notice dated 18/12/1996 the defendants failed to make the payment on the above amount hence present suit was instituted for recovery of Rs. 3,07,868/- along with interest 18 % per annum.
2.The defendants failed to appear despite service of summons for settlement and an exparte judgment was passed by Ld Predecessor on 08/2/2001. The said exparte judgment/decree was set-aside on 12/5/2007. The defendants have contested the suit by filing their written statement wherein they took the preliminary objection that the suit was without any cause of action; it has not been filed, signed, verified by duly authorised competent person; the court does not have territorial jurisdiction as no part of cause of action arose in Delhi; there is no privity of contract between the plaintiff and the defendants; suit was bad for non-joinder of necessary party i.e M/s Bestech Engineers and Page no. 3 (4)Suit no. 83/07/99 Constructors and the suit is barred by limitation as the defendants have already cleared off all the accounts of M/s Bestech Engineers and Constructors and the present suit has been filed in collusion with said Constructor to blackmail the defendants to extract money in the name of alleged transaction. On merits, averments have been controverted and denied.
3.In replication, plaintiff has reiterated and reaffirmed the stand taken in the plaint and controverted and denied the averments in the written statement.
4.On 20/11/2007 from the pleadings of the parties following issues were framed.
1.Whether the suit has been filed without any cause of action? OPD
2.Whether the suit has been filed, signed and verified by duly authorised and competent person on behalf of plaintiff ? OPP
3.Whether the court in Delhi has no territorial Page no. 4 (5)Suit no. 83/07/99 jurisdiction to try the present suit? OPD
4.Whether there is no privity of contract between the plaintiff and defendant, if so, its effect ?OPD
5.Whether the suit is bad for non-joinder of M/s Bestech Engineers and Contractors as necessary party ?OPD
6.Whether the suit is barred by limitation?OPD
7.Whether the plaintiff is entitled to suit amount as claimed? OPP
8.Whether the plaintiff is entitled to interest if so, at what rate and at what period.
9.Relief.
5.In support of its case the plaintiff has examined Shri.S.L.Bhansali, Senior Manager Chief (Legal) and defendants have examined Shri Kishan Bisht, Consultancy-Cum-Attorney of the defendants.
6.I have heard Ld counsel for the parties at length and have gone through the material on record.
Page no. 5 (6)Suit no. 83/07/99 MY ISSUEWISE FINDING IS AS UNDER:-
1. ISSUE NO.1 The onus of this issue was upon the defendants. Ld counsel for the defendants argued that the plaintiff has nothing to recover from the defendants as there is no liability to make the payment for alleged supply of cement because supply was made to M/s Bestech Engineers and Constructors engaged by the defendants and as such suit has been filed without any cause of action. Ld counsel for the plaintiff on the other hand argued that there is no substance in the said averments because defendants have not placed on record contents of the contract between the defendants and M/s Bestech Engineers and Constructors so as to ascertain what was the nature of dealing with them. It is argued that cement was supplied on their factory and account has been maintained in the name of defendants company in the Ledger A/c of plaintiff where payments were credited in Page no. 6 (7)Suit no. 83/07/99 the accounts of the defendants. Ld counsel for the plaintiff pointed out that if there is no liability of the defendants, what was the purpose for maintaining the accounts of plaintiff in the account books of the defendants which has been proved as Ex. PX. It is further argued that the defendants have clearly shown that payment of Rs. 98,472.88/- in the Ledger A/c of the defendants in Ex. PX and it is the stand of the defendants that the said payment has been wrongly shown paid in some other account for some other transaction by the Plaintiff. It is therefore argued that the above facts makes it clear that suit has been instituted with a valid cause of action. The above evidence referred and relied upon by the counsel for the defendants and other material on record clearly stipulated that the plaintiff has cause of action to institute the present suit against defendants. Issue no.1 is accordingly decided in favour of Plaintiff and against the defendants.
Page no. 7 (8)Suit no. 83/07/99
2. ISSUE NO.2 The onus of this issue was upon the Plaintiff. The PW1 deposed in his affidavit that he has appeared as Attorney of the plaintiff company vide General Power of Attorney Ex.PW-1/1. It is further deposed that the plaintiff company executed the GPA in favour of Shri M. K. Singhi as Ex. PW-1/2. As per Resolution Ex. PW-1/3 dated 29/01/04 the power of attorney was executed by Shri O.P. Kalani on behalf of plaintiff company by virtue of Power of Attorney dated 23/7/1997 in favour of Shri R.K Bharani Ex. PW-1/4. Ld counsel for the defendants argued that in cross-examination the PW1 has stated that he has not filed any appointment letter of the plaintiff company. It is further pointed out that PW1 admitted that the resolution dated 9/4/1997 does not mention of passing the resolution regarding the court cases etc. Ld counsel for the defendants further argued that in the Resolution dated 9/4/1997 the name of the defendants are not mentioned. PW1 replied voluntarily Page no. 8 (9)Suit no. 83/07/99 that the name of the party is not required to be specifically mentioned. PW1 further deposed that the resolutions are entered in the minute books and extracts of the minutes books are already on record. Ld counsel for the Plaintiff argued that the witness has brought the minutes books but Ld counsel for the defendants did not put any question in that regard. The deposition of PW1 and his cross-examination shows that he has successfully replied all the questions put in the cross- examination questioning his competency to depose on behalf of Plaintiff company and also the competency of the person who has instituted the present suit on behalf of Plaintiff company. The transaction between the parties is not disputed and dispute is with regard to the liability by defendants to make payment to the plaintiff. The evidence led by the plaintiff with regard to this issue is sufficient to prove that suit has been instituted on behalf of the Plaintiff by duly authorised, competent person and PW1 is also duly authorised to depose on Page no. 9 (10)Suit no. 83/07/99 behalf of the Plaintiff. Issue no.2 is accordingly decided in favour of plaintiff and against the defendants.
3. ISSUE NO.3 The onus of this issue was upon the defendants. During arguments Ld counsel for the defendants argued that no cause of action took place in Delhi. In reply, Ld counsel for the plaintiff stated that if defendants counsel is so interested, Plaintiff has no objection to the return of the plaint. When it was pointed out to Ld counsel for the defendants that this case is already 9 years old, the Ld counsel for the defendants did not press this issue any more. Thus both the Ld counsels agreed that the mater be disposed of finally by this court. The issue no.3 with regard to territorial jurisdiction of this court is disposed of in above terms.
4. ISSUE NO. 4&5.
The onus of this issue was upon the defendants. In Page no. 10 (11)Suit no. 83/07/99 preliminary objection no. 6 in the written statement, it was alleged that defendants have no privity of contract with the Plaintiff and thus no liability to pay any amount to the Plaintiff because none of the alleged bills/challans was ostensibly received by the defendants. In preliminary objection no. 8 it is also stated that suit is bad for non-joinder of necessary party i.e M/s Bestech Engineers and Constructors because all the said goods were supplied by the Plaintiff to the said constructor, so called bills were also raised against the said constructor and statement of A/c was made in the name of said constructor. However, in preliminary objection no.11, it is stated that the defendants engaged the service of M/s Bestech Engineers and Constructors and the Plaintiff was engaged by the said M/s Bestech Engineer and constructors and thus having no direct privity of contract with the defendants and the alleged liability is due only qua the M/s Bestech Engineers and Constructors and the defendants have already cleared Page no. 11 (12)Suit no. 83/07/99 off all the accounts of the said contractor.
5.I have seen the evidence led by the defendants to find out whether the above averments in the written statement has been substantiated or not. In Affidavit of DW1 in para. 3 it is deposed that in the year 1995, the defendants engaged the services of M/s Bestech Engineers and Constructors for the construction of a site at Gurgaon. The said M/s Bestech Engineers & Constructor entered into the deal with the Plaintiff at Beawar, Rajasthan. However, the defendants used to make the payments to the Plaintiff in the account of the said M/s Bestech Engineers and Constructors, although the same were required to be made by the said M/s Bestech Engineers and Constructors. In para. 4 it is deposed that the defendants never placed any purchase order or acknowledged the challan or receipts of the invoices and the said M/s Bestech Engineers and Constructors used to place orders to the plaintiff at Page no. 12 (13)Suit no. 83/07/99 Beawar and plaintiff used to deliver the cement only to M/s Bestech Engineers and Constructors at Gurgaon.
6.In Para. 3 on merits, it is stated that there is no occasion for the plaintiff to supply cement to the defendants and there is no transaction between the plaintiff and defendants because plaintiff has never supplied any goods to the defendants. In para. 4 on merits, it is deposed that defendants have never made any payment on account to the plaintiff as alleged. The defendants have always made payments against the account of the contractor and the so-called payment through cheque was made against the account of the constructor and the said payments made by M/s Mayor & Company against a different account and not paid by the present defendants. DW1 in his cross-examination stated that he has been maintaining the account of M/s Mayor International and it does not have any account in the name of plaintiff because account was maintained in the Page no. 13 (14)Suit no. 83/07/99 name of M/s Bestech. DW1 further deposed that he has not brought the accounts in the name of M/s Bestech. DW1 further deposed that the accounts of the plaintiff was maintained only by M/s Mayor & company and not by M/s Mayor International and that he was not aware about the accounts of M/s Mayor & Company. In cross- examination at page. 4 DW1 deposed as under:-
"It is correct that M/s Mayor International has issued the cheque in the name of the plaintiff towards the supply of the goods. Voluntarily stated that the said payment was made on behalf of M/s Bestech. I have no brought any record to show that the payments were made by M/s Mayour International on behalf of M/s Bestech.
7. At page no. 6 of his cross-examination he deposed that M/s Mayor International and M/s Mayor & Company had been maintaining separate accounts qua M/s Bestech. But he has not produced the accounts of M/s Bestech maintained by the company as the same are quite old and are not located. At page. no. 7 of his cross- examination DW1 admitted that from time to time Page no. 14 (15)Suit no. 83/07/99 cheques were issued by M/s Mayor International (defendants) as well as M/s Mayor & Company. He further admitted that neither M/s Mayor International nor M/s Mayor & Company received the goods supplied by the plaintiff. Ld counsel for the plaintiff therefore vehementally argued that the above deposition shows that cement was supplied by the plaintiff to the Contractor M/s Bestech who received the supply on behalf of defendants and for that reasons that defendants M/s Mayor International and M/s Mayor & Company had been issuing the cheque in the name of the plaintiff from time to time. It is further argued that the above deposition in cross-examination is sufficient to prove that there was privity of contract between the plaintiff and defendants. DW1 further admitted at page no. 9 in his cross-examination that he has not filed any contract of M/s Mayor International and M/s Mayor & Company with M/s Bestech who has received the supply from the plaintiff. In his cross-examination at Page no. 15 (16)Suit no. 83/07/99 page. 12 DW1 admitted admitted as under:-
"We made payment to the plaintiff on the basis of cheques to reduce cheque clearing time. Voluntarily stated if we would have made payment first to M/s Bestech and then M/s Bestech making the payment to the plaintiff, the same would have taken double time and, thus, we had been making payment directly to the plaintiff.
8.Ld counsel for the plaintiff vehementally argued that that in the absence of the contract between the defendants and the M/s Bestech Engineers and Constructors, the defendants have miserably failed to prove that M/s Bestech Engineers and Constructors were responsible for the supply of the cement for the construction and has dealt with the Plaintiff directly. It is further argued that if there is no privity of contract between the Plaintiff and the defendants, then why defendants have maintained the accounts of the Plaintiff. Ld counsel for the Plaintiff further argued that M/s Mayor International and M/s Mayor & Company are the same things but has been made separate entity Page no. 16 (17)Suit no. 83/07/99 for the reasons best known to the defendants. It is further argued that there is no difference between the two so far as their dealing with the Plaintiff is concerned.
9.The above deposition of DW1 in cross-examination of DW1 shows that defendants have failed to prove and substantiate their averments made in the written statement that M/s Bestech Engineers and constructors has employed the plaintiff for supply of the cement. The defendants further failed to prove that it was M/s Bestech Engineers who was liable for payment to the Plaintiff. The defendants have failed to place on record the contract between the defendants and M/s Bestech Engineers and Constructors because it was their own admitted case that they have employed M/s Bestech Engineers for construction at site. In the absence of said important evidence not led by the defendants, the defendants have failed to discharge the onus of both these issues. Plaintiff on the other hand has succeeded Page no. 17 (18)Suit no. 83/07/99 in proving that it has supplied the cement to the defendants and its sister concern M/s Mayor & Company for construction at their site . The Plaintiff has also proved various documents including the payments made on account through cheques by the defendants and all these facts and material are sufficient to prove that there was privity of contract between the Plaintiff and defendants.
10.Ld counsel for the defendants vehementally argued that suit was bad for non-joinder of necessary party i.e M/s Bestech Engineers and Constructors who was necessary and proper party to the present suit. In 129 (2000) DLT 565 It was held that:
"A party who is likely to be affected by any decision in a judicial proceeding is a necessary party and a party whose presence is necessary for adjudication a dispute, though he may not be affected by the final decision, is a proper party."
Further 118 (2005) DLT 597 it was held that:-
Page no. 18 (19)Suit no. 83/07/99 "Necessary parties are those without whom the Court will not proceed to any judgment. Included in this category would be the persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interest or without causing some prejudice to their rights.
Additionally, a party may be a necessary party where the decision of the Court would leave the controversy in such a condition that its final determination would be inconsistent with the rights of a party."
11. It is admitted case of the defendants that they have already cleared off dues of M/s Bestech Engineer and constructors. The defendants have not placed on record copy of the agreement between it and M/s Bestech Engineer and Constructors so that this court might have been benefited from the dealings between them to ascertain whether M/s Bestech Engineers & Constructors was necessary party to the present proceedings. For the above reasons and the law referred (Supra), I am of the considered opinion that M/s Bestech Engineers and Constructors is not the necessary Page no. 19 (20)Suit no. 83/07/99 party for deciding the present controversy. Accordingly, Issue no. 4&5 are decided in favour of Plaintiff and against the defendants.
12. ISSUE NO.6 The onus of this issue was upon the defendants. In preliminary objection no. 9 it is simply stated in the written statement that the suit is barred by limitation. Nothing is deposed in affidavit of DW1 to the effect that the suit is barred by limitation. No suggestion was made to the PW1 with regard to the suit being barred by limitation. Ld counsel for the defendants pointed out that in the order-sheet dated 22/1/2002, a question was raised by the Ld Trial Court stating as under:-
".... The plaintiff had filed a statement of account which shows that a payment of Rs 98,472/- was made on 23/7/96 by means of a cheque dated 6/7/96. The question is whether a fresh period of limitation will start running from 6/7/96 or from 23/7/96. Ld counsel for the plaintiff seeks further time to study the point.
Put up on 07/2/2002."
Page no. 20 (21)Suit no. 83/07/99
13. It is argued that the said question is still open and as per law of limitation, the part payment by way of cheque shall be considered on 6/7/96 when it was issued and not from the date 23/7/96 when it was encashed. It is further argued that the suit of the plaintiff instituted on 19/7/1999 is barred by limitation.
14.Ld counsel for the plaintiff on the other hand argued that the Ld Trial Court was satisfied in exparte judgment in para. 4 it was held that:-
"The last payment was made by means of a cheque on 23/7/96. Therefore, a fresh period of limitation started running from that date. The suit was filed within three years from the date of last payment and so, the entire claim is within time.
15. Ld counsel for the plaintiff further argued that the part payment was to be considered on the date when the cheque was encashed and not from the date when the cheque was issued and as such suit is within the period of limitation. Ld counsel for the plaintiff further argued Page no. 21 (22)Suit no. 83/07/99 that these arguments are beyond pleadings and nothing is alleged in the written statement or in the evidence of the defendants in that regard. Ld counsel for the defendants in support of his arguments has relied upon the judgment in case "Union of India Vs Jagvanti Bai & Ors reported in 1995 (4)Current Civil Cases 451 wherein in para. 2 it was held that :-
"2. Tender of cheque on the last day of the stipulated period should have been considered as good tender within time. Simply because the cheque was realised late,it cannot be said that there was no compliance with the direction given in the award. The Executing Court has committed error in holding that there was non- compliance of the direction given in the award and the amount was deposited late by 27 days. In this connection law is laid down by the Hon'ble Supreme Court of India in the case of the Commissioner of Income-tax, Bombay South, Bombay V Ogale Glass Works Limited, Ogale Wadi. Therein it is laid down that payment by cheque realised subsequently on the cheque being honoured and encashed relates back to the date of the receipt of the cheque and in law the date of payment is the date of delivery of the cheque. It is further observed that payment by cheque is an ordinary incident of present day life whether commercial or private and unless it is specifically mentioned that payment must be in cash there is no reason why payment Page no. 22 (23)Suit no. 83/07/99 by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course. This principle is reiterated by the Hon'ble Supreme Court in the case of K. Saraswathy v P.S. Samasundaram Chettiar. In view of this settled legal position, the view taken by the Executing Court cannot be sustained.
16. In AIR 1989 SC 1553 it was held by the Hon'ble Apex Court that :-
"......that payment by cheque realised subsequently on the cheque being honoured and encashed relates back to the date of the receipt of the cheque, and in law the date of payment is the date of delivery of the cheque.
Payment by cheque is an ordinary incident of present day, life, whether commercial or private, and unless it is specifically mentioned that payment must be in cash there is no reason why payment by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course.
17. Ld counsel for the defendants also argued that the statement of A/c produced by the plaintiff is not admissible in evidence as the same is not proved by the competent witness because plaintiff has not examined Page no. 23 (24)Suit no. 83/07/99 his Accountant who has prepared the account. It is further argued that the statement of A/c is incorrect as there is no explanation for absence of debit notes of the entries no. 69, 70 and 72 in statement of A/c Ex. PW- 1/42. It is further argued that vide entries no. 56,59,61 & 66 the accounts of the defendants has been debited with freight charges and there is no agreement that freight charges would be charged for the supply if any made. It was also argued on behalf of defendants that the accounts so maintained by the plaintiff in the name of M/s Mayor International is not the account of M/s Mayor International as it has been maintained C/o M/s Bestech Engineers and Constructors. It is therefore argued that statement of A/c Ex. PW-1/40 to Ex. PW- 1/42 is not admissible and can not be relied for proving the transaction as well as for computing the period of limitation from the part payment of Rs. 98,472/- on 23/7/1996 as shown in entry no. 71 of Ex. PW-1/42.
Page no. 24 (25)Suit no. 83/07/99
18. Ld counsel for the plaintiff on the other hand rebutted all these arguments stating that the statement of A/c is correctly maintained and all these arguments are beyond pleadings because in the written statement or in the evidence of the defendants nothing is averred and deposed in that regard. The averments of the defendants in the written statement and deposition in the evidence implies that there is no denial by the averments in the plaint and the document of the plaintiff i.e statement of A/c Ex. PW1/40 to PW1/42 is deemed to have been accepted as correct by the defendants. With regard to the computing of period of limitation from 23/7/96 and not from 06/7/96 i.e the date of cheque no. 541864 drawn on Punjab and Sind Bank. Ld counsel for the plaintiff argued that the cases relied upon by the defendant's counsel are not applicable and are distinguishable because in those cases the payment by cheque was for single transaction whereas in the case of the plaintiff it is a Mutual Open Current A/c between the Page no. 25 (26)Suit no. 83/07/99 parties where the period of limitation is governed as per article -1 of Schedule-I of the Limitation Act,1963. It is further argued that in case of Mutual Open Current A/c between the parties, the date of encashment and credit of accounts of the defendants of 23/7/1996 shall be considered the date of part payment from which the period of limitation shall start.
19.The fact that both the parties are maintaining respective accounts in their books of A/c is an admitted fact because statement of A/c Ex. PW-1/40 to Ex. PW- 1/42 clearly shows that the plaintiff has Open Current Account in the name of m/s Mayor International C/o M/s Bestech Engineers and Constructors. In cross- examination of PW1 the copy of the statement of A/c of the defendants Ex. PX (the original of which was placed on record in the connected suit) was put to the plaintiff's witness. In Ex. PX the date of payment of Rs. 98,472/- in the accounts of the plaintiff is shown on 30/7/96 not on Page no. 26 (27)Suit no. 83/07/99 6/7/96 as is being claimed by the defendants. Thus, by their own documents the defendants are admitting that the said payment of Rs. 98,472/- was made to the plaintiff on 30/7/1996. The arguments as advanced on behalf of defendant that the said payment was made on behalf of M/s Mayor and Company and not by M/s Mayor International is not tenable because it stand sufficiently proved by the plaintiff that M/s Mayor International and M/s Mayor and Company are not two separate entities as they are governed by the same persons who are the partners of M/s Mayor and Company and also directors of M/s Mayor International. Moreover, defendants have failed to prove that the plaintiff has wrongly credited the above said account in the accounts of M/s Mayor International which was required to be credited in the account of M/s Mayor and company. Once it is established that the parties are having Mutual Open Current A/c in their books of accounts, the question of limitation shall be governed by Page no. 27 (28)Suit no. 83/07/99 article-1, Schedule-1 of Limitation Act,1963 which reads as under:-
Description of suit Period of Limitation Time from which period begins to run
1.For the balance due Three years The close of the year on a mutual, open and in which the last item current account where admitted or proved is there have been reciprocal entered in the account;
demands between the parties such year to be computed as in the account.
20.Thus, for the purpose of period of limitation, the last date of financial year in which the last payment was made shall be the date from which the limitation of three years shall start. For the above discussion, I am of the considered opinion that plaintiff has succeeded in proving that the suit has been filed within the period of limitation. On the other hand the defendants have failed to prove that the suit was barred by limitation. Accordingly, the issue no.6 is decided in favour of plaintiff and against the defendants.
21. ISSUE No. 7 &8 Page no. 28 (29)Suit no. 83/07/99 The onus of these issues is upon the plaintiff. PW1 deposed that the defendant no.1 had approached the plaintiff company at its marketing office at New Delhi for the supply of cement for construction of its factories and company has agreed to supply the same on the condition that the payment may be released promptly. It is further deposed that the plaintiff raised the invoices/ bills for the supply of the cement to the defendants and they are making On Account payments against the invoices submitted by the plaintiff. It is further deposed that the plaintiff company have been maintaining an Open regular Current A/c in the name of the defendants in their books of A/c and after accounting the defendants last payment on 23/7/1996 and as per account books of the plaintiff company a sum of Rs. 1,99,914 was due from the defendants as on 24/7/96. It is further deposed that the plaintiff company demanded the amount but the defendants failed to pay the same. The invoice (21 in total number) are proved as Ex. PW-
Page no. 29 (30)Suit no. 83/07/99 1/5 to Ex. PW-1/25. The statement showing the details of truck numbers and expenses on the transportation of material to the defendants are proved as Ex. PW1/26 to Ex. PW1/39. The statement of A/c in three pages is proved as Ex. PW-1/40 to Ex. PW-1/42. In the lengthy cross-examination of PW1 it is not suggested that the cement was not supplied by the plaintiff. It was simply put to the witness that the supplies were made to M/s Bestech Engineers and Constructors and for that reasons the accounts in the name of the defendants was maintained C/o M/s Bestech. The witness PW1 successfully denied the suggestion that C/o accounts are maintained to claim the outstanding from the care of entity. While deciding issue no. 5 it has already been held that M/s Bestech Engineers and Constructors were not the necessary party to the present suit because defendants have failed to show that plaintiff was approached by the M/s Bestech Engineers & Company for supply of the cement and further th at defendants Page no. 30 (31)Suit no. 83/07/99 have made the payment to the M/s Bestech Engineers and Constructors which was responsible to make the payment to the plaintiff. PW1 has successfully with stood the test of cross-examination wherein Ld counsel for the defendant has put different entries in the statement of A/c to explain. DW1 in his affidavit deposed that the defendants cleared off all the accounts by making full and final payment on 27/3/96 and alleged payment of Rs. 98,472/- by cheque no. 541874 was made by the defendants on behalf of M /s Mayor and Company in respect of its outstanding. It is further deposed that there is no agreement between the parties to claim interest. DW1 in his cross-examination stated that the defendant has not maintained the accounts of the plaintiff as it has maintained accounts in the name of M/s Bestech. DW1 has failed to place on record even the said account prepared in the name of M/s Bestech on the ground that it could not locate the same. In his further cross-examination, DW1 admitted that M/s Page no. 31 (32)Suit no. 83/07/99 Mayor International has issued the cheque in the name of the plaintiff towards supply of the goods. DW1 has failed to show that the amount claimed by the plaintiff is not legally recoverable from the defendants. The defendants have further failed to prove that they have made the payment for supply of the cement for the present case by the plaintiff by making payment allegedly to M/s Bestech. defendant has not placed on record any proof of such payment. It is admitted case of the defendants that they have been making the payment through cheque directly to the plaintiff. The explanation given by the defendants for said payment is that it was made directly to the plaintiff in order to avoid the double time to be consumed in case defendants would make the payment first to M/s Bestech who then would have paid to the plaintiff. While deciding earlier issues this explanation was not found acceptable. The plaintiff has proved its entitlement to the suit amount by proving all the documents Ex. PW-1/1 to Ex. PW-1/42. PW1 has Page no. 32 (33)Suit no. 83/07/99 successfully with stood the test of cross-examination . The plaintiff has further proved various bills and there is stipulation that the interest @ 24% shall be charged if payment is not received. The evidence on record has proved that the plaintiff has not received the payment for the amount claimed in the present suit. The defendants have failed to prove that it has already made the full and final payment to the plaintiff for the amount claimed in the present suit. The plaintiff has claimed interest @ 18% on principal amount of Rs. 1,99,114/- as on 24/07/96 which comes to Rs. 1,07,954/- . In view of the above discussion, the plaintiff has succeeded in proving that it was entitled to recovery of RS. 3,07,868/- from the defendants. Since the transaction was commercial transaction, the plaintiff is also entitled to pendentelite and future interest. The ends of justice shall be met if plaintiff is allowed to claim interest @ 12% from the date of institution of the suit till the realisation of decretal amount. Issue no. 7 and 8 are accordingly Page no. 33 (34)Suit no. 83/07/99 decided in favour of plaintiff and against the defendants.
22. RELIEF In the light of my above findings on the issues, suit for recovery of Rs. 3,07,868/- is decreed in favour of plaintiff and against the defendants. Defendants are further liable to pay pendentelite and future interest @ 12 % per annum on the principal amount of Rs. 1,99,914/- from the date filing of the suit till the realisation of decretal amount. Cost of the suit also awarded in favour of plaintiff and against the defendants. Decree-sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced in the open court on 08/5/2008 (RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE:
DELHI.
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