Delhi District Court
Kapil Goel vs M/S Virat Industries on 9 May, 2024
IN THE COURT OF SH. PRITU RAJ : CIVIL JUDGE : NORTH
DISTRICT, ROHINI COURTS : DELHI
CS SCJ 128323
CNR No. DLNT030024762023
In reference:
KAPIL GOEL
Prop. of MWB Fasteners,
Office at A-47/1, GT Karnal Road Industrial Area,
Delhi-33. ............. Plaintiff
VERSUS
1. M/S VIRAT INDUSTRIES
Partnership firm
Office At: H-170, First & Second Floor,
Sector-63, Noida, UP-201301
Also At
5/4, Sector-5, Rajender Nagar, Sahibabad,
Ghaziabad,UP-201005
Through its Partner Shri Nishant Mavi
2. Shri Nishant Mavi
Partner of M/S VIRAT INDUSTRIES
Office At: H-170,
First & Second Floor,
Sector-63, Noida, UP-201301
Also At
5/4, Sector-5,
Rajender Nagar, Sahibabad,
Ghaziabad,UP-201005 .........Defendants
Date of Institution : 09.11.2023
Date of reservation of Judgment : 09.05.2024
Date of Judgment : 09.05.2024
CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 1 of 7
EXPARTE J U D G M E N T
1. The present suit has been filed by the plaintiff against the defendant
seeking the recovery of Rs. 2,08,907/ along with pendentelite and
future interest @ 18 % p.a on the principal amount, i.e., 1,62,574/
from Nov, 2023 till realisation.
FACTS AS PER THE PLAINT :
2. The case of the plaintiff as per plaint in brief is that the Defendant and the Plaintiff had business relations and the Defendant regularly purchased goods from the Plaintiff on credit basis. Plaintiff claims that he had sold goods to the Defendants for the period 01.04.2019 to 31.03.2022 on credit basis and against invoices which were duly received by the Defendant. It is case of the plaintiff that as per the books of account, an unpaid amount of Rs. 1,62,574/ was shown as outstanding. Despite repeated requests and legal notice dated 11.09.2023, the amount remains unpaid. Hence, the present suit.
PRAYER:
3. Plaintiff has made the following prayer:
(a) That a decree be passed in favour of the Plaintiff and against the Defendant for a sum of Rs. 2,08,907/ in favour of the Plaintiff and against the Defendant, assignees, transferees, LRs, representatives or anyone claiming through the Defendant.
(b) Pendentelite interest @ 18 % p.a. on the principal amount, CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 2 of 7 i.e., Rs. 1,62,574/ from Nov, 2023 till realization. from the date of institution of the suit till realisation in favour of the Plaintiff and against the Defendant, assignees, transferees, LRs, representatives or anyone claiming through the Defendant in the interest of justice.
(c) Any other relief.
DEFENCE :
4. In the present case, when the Defendants were attempted to be served, they refused to accept service which was treated as proper service. However, since no WS was filed on their behalf, the right of defendants to file WS stood closed and the suit was proceeded ex parte qua the defendants on 08.02.2024.
ISSUES:
5. No issues have been framed in the present case.
DOCUMENTS & EVIDENCE:
6. In support of its case, the plaintiff has examined himself as PW1, who tendered his exparte evidence by way of affidavit Ex. PW1/A and relied upon following documents:
(a) Ex PW1/1 (OSR) being the invoice dated 12.01.2021.
(b) Ex PW1/2 (OSR) being the eway bill dated 12.01.2021.
(c) Ex PW1/3 being the B2B summary qua bill no. 762 and 732.
(d) Ex PW1/4 being the invoice dated 24.02.2021. CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 3 of 7
(e) Ex PW1/5 being the B2B summary qua bill no. 950.
(f) Ex PW1/6 being the bill dated 27.03.2021.
(g) Ex PW1/7 being the eway bill dated 27.03.2021.
(h) Ex PW1/8 being the B2B summary qua bill no. 1089. (I) Ex PW1/9 being the invoice dated 11.09.2021.
(j) Ex PW1/10 being the B2B summary qua bill no. 425.
(k) Ex PW1/11 (Colly) (OSR) (3 pages) being the ledger account.
(l) Ex PW1/12 being the legal notice dated 11.09.2023.
(m) Ex PW1/13, Ex PW1/14 and Ex PW1/15 being the postal receipts.
(n) Ex PW1/16 being the reply of the Defendant to the legal notice.
FINAL ARGUMENTS:
7. Exparte final arguments have been heard at length on behalf of the plaintiff.
FINDINGS OF THE COURT:
8. Section 101 of the Evidence Act, 1872 defines "burden of proof" and lays down that the burden of proving a fact always lies upon the person who asserts the facts. Therefore, the burden of proof always lies on the plaintiff initially to prove the facts alleged by him. This principle of law remains the same even in cases where the suit has been proceeded exparte qua the defendant.
9. The law with regard to burden of proof of plaintiff in case of exparte proceeding has been well settled in a plethora of judgments of the Hon'ble Supreme Court. Though, the burden of proof on the plaintiff in exparte proceeding is not very heavy, but the necessity of proof by CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 4 of 7 the plaintiff of his case to the satisfaction of the court cannot be dispensed with. The Hon'ble Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350 explained the law with regard to burden of proof of plaintiff in an exparte suit. The observations of the Hon'ble Apex court may be reproduced herewith as follows: "Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Rule 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff company of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff company is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff company such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination" and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence."
10. In order to discharge his burden, the Plaintiff stepped into the witness box and placed reliance on the documents mentioned in para 6 of this CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 5 of 7 judgment. The testimony of PW1 Shri Kapil Goel remained unconverted, unchallenged and duly corroborated by relevant documents, hence, there is no reason to disbelieve the said testimony. The present suit has been filed within the period of limitation. In ex parte suits, where defendant does not file a written statement or does not appear to contest the case, the plaintiff as well as the court proceeds on the basis that there was no real opposition to put forth. Now, coming to the total amount due to the Plaintiff, the Plaintiff has claimed an amount of Rs. 46,333/ as pre suit interest along with the principal amount of Rs. 1,62,574/. In the considered opinion of this Court, an amount of Rs. 1,62,574/ has been duly proved by the Plaintiff as the principal amount due to him. Now coming to the aspect of pre suit interest, as regards the pre suit interest it is settled law that the same has to be determined not by referring to the provisions of S. 34 CPC but by the existence of any contract, express or implied, between the parties or statutory provision or mercantile usage. In the present case, a perusal of the invoices shows that the Plaintiff had communicated about the rate of interest, in case of default of payment, to be 18 % p.a. and the same was duly sent to the Defendant. The said invoices remain unrebutted and considering the fact that invoices continued to be raised by the Plaintiff and the same were duly sent to the Defendant, an implied contract regarding the rate of pre suit interest can be presumed. Hence, in the considered opinion of this Court, the Plaintiff has been able to prove the existence of a pre existing contract between the parties as regards the rate of interest to CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 6 of 7 be levied in case of default in payment. Accordingly, the Plaintiff is also held entitled for a sum of Rs. 46,333/ as pre suit interest.
11. The plaintiff has claimed pendentelite and future interest @ 18% p.a on the principal amount of Rs. 1,62,574/-. This Court is of the considered view that if interest @ 9% p.a. is granted to the plaintiff, it would meet the ends of the justice. Therefore, interest is granted on the principal amount of Rs. 1,62,574/- to the plaintiff @ 9% p.a. from the date filing of suit till its realization.
12. In the light of the above discussion and reasons therein, the suit of the plaintiff is decreed for a sum of Rs. 2,08,907/- and alongwith interest @ 9% p.a. on the principal amount of Rs. 1,62,574/- from the date of filing of the suit till its actual realization. Costs of the suit are also decreed in the favour of the plaintiff and against the defendant.
13.Decree sheet be prepared accordingly.
14. File be consigned to the record room after necessary compliance.
Announced in the open Court on 09.05.2024 (PRITU RAJ) CIVIL JUDGE (NORTH) ROHINI/DELHI/09.05.2024 CS SCJ 1283-23 KAPIL GOEL Vs. MS VIRAT INDUSTRIES Page No. 7 of 7