Delhi District Court
Addl.District Judge vs M/S M.M. Induction Pvt. Ltd on 20 March, 2010
IN THE COURT OF SHRI BRIJESH KUMAR GARG.
ADDL.DISTRICT JUDGE, CENTRAL18 , DELHI
SUIT NO:116/05
1 SHRI ASHOK KUMAR SHARMA,
SOLE PROPRIETOR :
M/S ALLOYSMIN INDUSTRIES
JD205 , PITAM PURA,
DELHI110088
PLAINTIFF
VS.
1 M/S M.M. INDUCTION PVT. LTD.,
THROUGH ITS DIRECTORS
2 ADBUL HAFIZ,
DIRECTOR,
M/S M.M. INDUCTION PVT. LTD.
3 ABDUL KAREEM,
DIRECTOR,
M/S M.M. INDUCTION PVT. LTD.
REGD. OFFICE AT :
MUNEER MANZIL, TOPKHANA ROAD,
CHANDPOLE, JAIPUR302001
RAJASTHAN. DEFENDANTS
20 32010
J U D G M E N T
Plaintiff has filed the present suit for recovery of a sum of Suit No: 116/05 Page1/14 2 Rs.5,93,566.68/, from the defendants, alongwith pendentelite and future interest @ 24% per annum.
2 It has been stated in the plaint that the plaintiff is engaged in the business of supply of Ferro Alloys Metals, Ramming Masses, asbestos sheets, cloths and furnace spare parts etc and the defendants were having business dealing with the plaintiff and goods were being supplied by the plaintiff to the defendants on cash/credit basis, from time to time, when the orders were placed by the defendants, and running account was being maintained and the last payment was received by the plaintiff on 31.7.2003 .
3 It is further stated that the accounts were settled annually and as per the ledger account, for the period 1.4.2003 to 31.3.2004, a sum of Rs. 5,93,566.68 was due and payable by the defendant. 4 It is further stated that on 21.5.2003 the outstanding amount against the defendants was Rs.6,13,566.68 and thereafter the defendants requested the plaintiff firm to send material for a sum of Rs.2,28,942. 32 and issued cheque No.137458 dated 2.6.2003 but the said cheque was returned back dishonoured, firstly, on 12.6.2003 and again on 8.9.2003.
5 It is further stated that the plaintiff has agreed to supply the goods worth Rs.2,28,942.32 only on clearance of the said cheque for Rs.8,42,509 but the said cheque was returned dishonoured and, Suit No: 116/05 Page2/14 3 therefore, the goods worth Rs. 2,28,942.32 were not supplied. 6 It is further stated that a payment of Rs.20,000/ was made by the defendants vide cheque No.884015 and the same was cleared and therefore a total sum of Rs.5,93,566.68P is still due and payable by the defendants.
7 Written statement has been filed by the defendants, wherein, several objections have been taken. It has been stated that the suit is barred by limitation and this court has no territorial jurisdiction to entertain the present suit.
8 It is also objected that the business dealings between the parties, came to an end in the year 2001 and fresh transactions started only on 3.4.2003 with the stipulation of advance payment only and therefore, there is no outstanding amount due from the defendants. 9 It is further stated that the defendants have never placed the order for supply of goods worth Rs.2,28,942.32 and the order was placed only for supply of material worth Rs. 20,000/ by advance payment vide D.D. No.884015 of U.C.O. bank. But, despite receiving the said amount, the plaintiff had not supplied the goods to the defendants.
10 It is further stated that the plaintiff has concocted a false and fabricated claim of Rs.8,42,509/ and, therefore, the suit of the plaintiff be dismissed with costs.
Suit No: 116/05 Page3/14 4 11 Rejoinder to the written statement has been filed, wherein, the contents of the written statement have been denied and the contents of the plaint have been reiterated and reaffirmed as correct. 12 From the pleadings of the parties, vide orders dated 26.10.2006 , the ld. predecessor of this court framed the following issues as under:
1 Whether the suit is barred by limitation ? OPD 2 Whether the courts at Delhi have territorial jurisdiction to try the suit ? OPD 3 Whether the plaintiff is entitled to recover of Rs. 5,93,566.68 from the defendants? OPP 4 Whether the plaintiff is entitled to claim interest from the defendants and if so on what rate and for what period ? OPP 5 Relief 13 During the course of trial , the plaintiff has examined himself as PW1 and the defendant has examined defendant No.2 Sh.
Addul Hafiz as DW1.
14 After the completion of trial, final arguments have been addressed by Sh. Kapil Jain, Adv. for the plaintiff and by Sh. Bhartesh Goel , Adv. for the defendants.
Suit No: 116/05 Page4/14 5 15 It has been argued by the ld. counsel for the plaintiff that the business dealing between the parties had started in the year 1993 and continued till 2003 and last payment was received from the defendants on 31.7.2003 and, therefore, the period of limitation has to started with effect from 1.8.2003 and the present suit has been instituted on 16.7.2005 and, therefore, the same is well within the period of limitation. It is also argued that the registered office of the plaintiff is situated at Delhi and the goods were dispatched to the defendant from Delhi and the payments were received by the defendant at Delhi and, therefore, this court has territorial jurisdiction to try and entertain the present suit. It is also argued by him that all the relevant documents have been placed on record and the plaintiff has proved the various documents and has proved the statement of accounts and, therefore, the suit of the plaintiff be decreed.
16 On the other hand, the ld. counsel for the defendants has argued that the business transactions between the parties had continued only till the month of June,2000, and after June,2000 the business transactions between the parties had stopped and fresh dealings between the parties started only in the year 2003 with the fresh understanding that the fresh business transactions shall be done between the parties on 'bill to bill' basis. It is further argued that the jsuit of the plaintiff is time barred as the last payment was made by the Suit No: 116/05 Page5/14 6 defendants that in the previous running account only till 31.3.2001. It is also argued by the ld. counsel for the defendants that the relevant bills/invoices have not been placed on record to prove the statement of account and, therefore, the claim of the plaintiff be rejected. It is also argued by him that the defendants are residing at Jaipur and are carrying on their business at Jaipur and the goods were delivered by the plaintiff at Jaipur are and the payments were sent by the defendants from Jaipur and no part of the business transaction has arisen at Delhi, and , therefore, this court has no territorial jurisdiction to try and entertain the present suit.
17 I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. counsels for the parties. I have also gone through the various judgments cited by the counsels for the parties, and my findings on various issues are as under:
I S S U E N O: 1 1 Whether the suit is barred by limitation ? OPD
18 The onus of prove of this issue lies upon the defendants. In support of their contentions the defendants have examined DW1 Abdul Hafiz , Director of defendant No.1 , who has filed his affidavit and has categorically stated that the business dealings between the Suit No: 116/05 Page6/14 7 parties had started in 1993 , which initially ended in June , 2000 and last payment was made by the defendant company on 12.1.2001. 19 It is further stated that in the year 2003 the parties have started again their business relations, denovo, with effect from 3.4.2003, with the stipulation that the plaintiff would supply the material of good quality, for which, the payment shall be made in advance. It is also stated that the new business transactions were initiated only on prepayment basis . This witness has denied that a sum of Rs. 5,93.566.68 p. was outstanding against the defendants on 31.3.2004 .
20 This witness has been crossexamined at length by the ld. Counsel for the plaintiff . But no material discrepancy has come on record in his deposition to discard his testimony. In his cross examination , this witness has stated that the full and final payment of Rs.40,000/was made by the defendants on 12.1.2001. 21 Perusal of the record further shows that the plaintiff has also examined himself as PW1 and has placed on record the statement of account for the period with effect from 1.4.1999 to 31.3.2003 pertaining to the years 19992000, 20002001, 20012002 and 2002 2003 and has proved the same as Ex.PW1/14 to Ex.PW 1/17. All these statements indicate that PW1 /15 is the ledger account for the period 1.4.2000 to 31.3.2001 and as per the same a Suit No: 116/05 Page7/14 8 debit balance of Rs. 6,24,173.50 P has been shown due against the defendants on 13.1.2001 . There is no business transactions between the parties for the period w.e.f. 13.1.2001 to 27.1.2003, but the ledger account for the period 1.4.2002 to 31.3.2003, which has been proved as Ex.PW 1/17, again shows the credit opening balance of Rs. Rs. 6,24,173.50 P. During his cross examination the plaintiff has admitted that during the period with effect from 13.1.2001 to 27.1.2003 , no business transactions were done between the parties and has has also admitted that the accounts between the parties were reconciled annually and has also admitted that the accounts till the year 2000 were settled between the parties. But, this witness has also stated that he has filed a confirmation of this statement of account in the Court as Ex.PW1/15. When statement of account Ex.PW1/15 is perused, it is observed that it bears some endorsement at point A to B and the stamp of the defendant with signatures of the Manager (Account) of the defendant at point C to D . The plaintiff has also admitted that no goods were supplied to the defendant during the period with effect from July, 2000 to March, 2003 and the last payment was received by him for the goods supplied upto June, 2000, on l3.1.2001 . He has also admitted that the business dealings with the defendant again started on 3.4.2003 . During his crossexamination, regarding document Ex.PW 1/15 the plaintiff has stated that he was Suit No: 116/05 Page8/14 9 not aware about the person ,in whose hand writing the endorsement was made on Ex.PW 1/15 at point A to B. However , he has stated that Ex.PW 1/15 was handed over to him by director of the defendant himself, at his office . The plaintiff has admitted that he was not aware about the person who signed the endorsement on Ex.PW 1/15 at point C to D . He has also admitted that the endorsement Mark A to B on Ex.PW 1/15 were not written in his presence , but, he volunteered that the same were written in the presence of his nephew Sh. Alok Sharma. But , during the entire trial, said Sh. Alok Sharma has not been examined by the plaintiff in support of his contentions. The counsel for the plaintiff has relied upon Ex.PW1/15 and the endorsement made on it at point A to B and has stated that the same was done on behalf of the defendant on 23.3.2003 and the some amounts to the acknowledgment of the outstanding amount against the defendant on 23.3.2003 and, therefore, the period of limitation starts with effect from 23.3.2003 only and, therefore, the suit of the plaintiff is well within the period of limitation.
22 It has been held by the Hon'ble High Court of Punjab & Haryana in case titled as State Bank of India Vs M/s H.Satish Hosiery Factory , Modhopuri & Anr. as reported in 2004(1) CIVIL COURT CASES 553 (P.H.) as under:
Suit No: 116/05 Page9/14 10
10. In view of the evidence led by the parties, it is apparent that writing on Ex.P5 has been written subsequently and was not part of the original letter. The defendant has denied such writing in his handwriting in the pleadings as well as in the evidence. The plaintiff has not led any evidence to prove that the writing is in the hands of any of the defendant. Such writing is not even initialled by any person. There is no evidence that these words of acknowledgement were written in the hands of the defendant. In the absence of any such proof, I am unable to hold that the document Ex.P5 does not contained and acknowledgement of liability on behalf of the defendant. The first question is thus answered against the plaintiff.
23 It is also held by the HON'BLE HIGH COURT OF KARNATAKA, in case titled as "CANARA BANK V/S VARA TRADING COMPANY & OTHERS as reported in 2006(4) CIVIL COURT CASES 707 (KARNATAKA) (DB) , as under:
" 22 ....This document is very important and crucial in this case because, except mentioning the amount of overdraft and pronote dated 18.01.1983 for a sum of Rs.75,000/ the acknowledgements of debt alleged to have executed by the defendant 2 does not reflect as also the actual amount due from the defendants to the Bank in connection with the Loan Transaction. Having regard to the pleading of defendants denying the execution of pronote and acknowledgements of debt by defendants 2 and 3 in respect of the debt due to the Bank as pleaded by the Bank, the claim of the Bank cannot be accepted as correct in the absence of non mentioning of the amount due from the defendants as per Ex.P.6.Suit No: 116/05 Page10/14 11
As per Section 18 of the Limitation Act the limitation of 3 years starts from the date of signing the acknowledgement. In view of the serious discrepancies found in the documents, the Trial Court case to the right conclusions and held that suit claim is bared by limitation by answering the issue 6 against the Bank. But, proper reasons are not assigned by it, while answering issue 6. However, we have supplemented the reasons. Therefore, we hold that acknowledgements of debt referred to supra are not in conformity with the provisions of Section 18 of the Limitation Act. Hence, the findings recorded on the contentious additional 1ssue 9 against the Bank is legal and valid and do not call for interference by this Court.
24 In the present case also , the defendant has denied the endorsement at point A to B on Ex.PW1/15 and has also denied the stamp and signatures on behalf of the defendant at point C to D bearing date of 27.3.2003 . He has also stated that the endorsement and stamp has been forged and fabricated by the plaintiff only to extend the period of limitation. In view of the material on record and the legal positions as discussed above, I am of the considered opinion that the plaintiff has failed to prove the endorsement on Ex.PW1/15 at point A and B and C to D, whereby, he is claiming the extension of period of limitation . From the record it is clear that the last transaction between the parties has taken place on 13.1.2001, when the payment of Rs. 39865/ was made by the defendants. There is no transaction between the parties during the period with effect from 13.1.2001 to Suit No: 116/05 Page11/14 12 27.1.2003 and, therefore, I am of the considered opinion that the period of limitation for filing the present claim had started on 14.1.2001 and the present suit has been instituted by the plaintiff only on 16.7.2005 and, therefore, the same is barred by limitation. This issue is decided accordingly, in favour of the defendants and against the plaintiff.
I S S U E N O : 2
2 Whether the courts at Delhi have territorial
jurisdiction to try the suit ? OPD
25 The onus of proof of this issue lies upon the defendant and
in support of this contention, DW1 has categorically stated, by way of his affidavit, that, the defendants are having their registered office at Jaipur, Rajasthan and from the record it is clear that the defendants are running their business and work for gain at Jaipur, Rajasthan and the goods were supplied by the plaintiff to the defendants at Jaipur, Rajasthan and the delivery of goods was taken by the defendants at Jaipur, Rajasthan. In his crossexamination the plaintiff has admitted all these facts and, therefore, from the record, it is clear that no part of the cause of action has arisen at Delhi . The cause of action in the present suit has arisen only at Jaipur, Rajasthan, where the goods were delivered and when the defendants had refused to make the payment of Suit No: 116/05 Page12/14 13 the due amount. In the considered opinion of this court, the dispatch of the goods from Delhi, for delivery at Jaipur, Rajasthan, does not give rise to the cause of action. The cause of action arises only on the date of refusal of the defendants to make the payment of the amount due . Since the defendants are working for gain at Jaipur, Rajasthan , it can safely be held that the refusal for payment has been done at Jaipur, Rajasthan . Therefore, this issue is decided in favour of the defendants and against the plaintiff and it is held that this Court has no territorial jurisdiction to try and entertain the present suit. I S S U E N O 3 & 4 3 Whether the plaintiff is entitled to recover of Rs. 5,93,566.68 from the defendants? OPP 4 Whether the plaintiff is entitled to claim interest from the defendants and if so on what rate and for what period ? OPP 26 The onus of proof of both these issues lies upon the plaintiff and since both these issues are interconnected , I deem it appropriate to decide both these issues together. Since this court has already held that the present suit is barred by limitation and has also held that this Court has no territorial jurisdiction to try and entertain the present suit, I am of the considered opinion that there is no requirement for giving any finding on these issues, regarding the Suit No: 116/05 Page13/14 14 entitlement of the plaintiff for claiming the suit amount from the defendants and, accordingly, both these issues are decided in favour of the defendants and against the plaintiff.
R E L I E F In view of my findings on the various issues, as discussed above, I am of the considered opinion that the plaintiff is not entitled for any relief from this Court and , therefore, the suit of the plaintiff is hereby dismissed. No orders as to costs. Decree sheet be drawn accordingly. File be consigned to the record room after due compliance.
ANNOUNCED IN OPEN COURT BRIJESH KUMAR GARG
20.03.2010 ADDL.DISTRICT JUDGE
CENTRAL18, DELHI
Suit No: 116/05 Page14/14
SUIT NO: 116/2005
20.3.2010
PRESENT: None for the parties.
Separate judgment has been passed, whereby , the suit of the plaintiff has been dismissed. Decree sheet be drawn accordingly. File be consigned to the record room.
BRIJESH KUMAR GARG ADDL.DISTRICT JUDGE CENTRAL18 , DELHI Suit No: 116/05 Page15/14