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Kay Sons India Pvt. Ltd vs M/S. Nandini Foods on 24 January, 2015

IN  THE  COURT  OF  SH.LALIT  KUMAR: ADDL. DISTRICT JUDGE­01: 
       SOUTH EAST DISTRICT : SAKET COURTS : NEW DELHI            

C.S. 36/2014
Kay Sons India Pvt. Ltd. 
Regd. And Head Office at 
C­65, Harkesh Nagar, Okhla Industrial Area
Phase­II, New Delhi ­110020 
Factory Office at 
Plot no.2D, Sector­31
Ecotech­1, Kasna Industrial Area
Kasna Road, Greater Noida, U.P.
Throug its M.D. Mr. K. S. Bhati
                                                                          .......Plaintiff 

              Versus


M/s.  Nandini Foods 
Through it's owner/proprietor Mr. Ram Bir Singh
At present resident of :
Plot no.6, G­65, (6th floor)
DGS Apartments, Sector­22
Dwarka, New Delhi. 
                                                                          ......Defendant 



Date of institution of case       :          02.05.2014 
Date of Reserving order           :          21.01.2015 
Date of Order                     :          24.01.2015



             SUIT FOR RECOVERY OF Rs. 13,00,689.00/­




CS-36/2014              Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods                 pg. 1 / 11
 JUDGMENT

1. By this judgment, I shall decide the suit for recovery filed by the plaintiff against the defendant.

2. The brief facts of the case are that the plaintiff is a private limited Company and deals in the manufacturing and sales of Gravure Printed Laminated Films, Pouches, Flexo Printed Poly Bags and Paper Carry Bags belongs to one of the well reputed entities in the world of paper packaging materials. The defendant firm being a proprietorship concerned, deals in the sales and purchase of various products for your business centre/s. The defendant through its authorised person/s and proprietor approached the plaintiff company at its registered office for the purchase of various products manufactured by the plaintiff company and required by defendant and accordingly a business deal was struck between defendant and the plaintiff company and thereby defendant firm become a regular customer of the plaintiff company. In view to maintain long business relation, the plaintiff company has also opened and maintain a regular account of defendant's heads in its books. The plaintiff company has been supplying defendant the requisite materials as per the order/s and demands against C­forms of the defendant firm which were placed at the head office and register dog the plaintiff company from and on behalf of the defendant firm from time to time and accordingly defendant has been making payments good as per the CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 2 / 11 bill/s of the plaintiff company raised from time to time. Initially, the business relation of the defendant with the plaintiff company were going on very smoothly but as far as time passes, defendant started showing its real colour to the plaintiff company against the business norm and practice by lingering the payment after due time on one or other pretext and also fails to provide the required sale tax forms and the situation became bad to worse rather than showing any sign of improvement which accelerated by the end of financial Year 2012­2013 to it's peek. Despite numerous demands and reminders, the defendant neglected payments to the plaintiff company and also failed to provide the necessary C­Forms thereby causing huge loss to the plaintiff company. When the plaintiff company objected the delaying tactics, defendant asked the plaintiff company to wait till July, 2012 with assurance that by that time, defendant will clear all pending dues and will also submit required pending C­Forms. Defendant towards discharge of partial liability through its proprietor came to the office of the plaintiff company to settle and clear the outstanding and after discussion had issued three cheque in between August, 2012 to September, 2012 but kept lingering their presentation for encashment on one or other pretext and finally defendant failed to clear the said cheque amount as they were got dishonoured due to insufficient amount in bank account when presented for encashment in the month of November 2012 and two of them returned unpaid as they become outdated. When the factum of dishonour of said cheques was brought into the knowledge of the CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 3 / 11 defendant, he again started making lame excuses and did not pay the amount, It is further submitted that consequently, the plaintiff company served defendant with legal demand notice dated 08.01.2013 under NI Act and then a case bearing CC No. 185/2013 was dismissed by Ld. MM on technical ground by holding that since out of three cheques two had become outdated at the time of their presentation as per new rules of RBI. As per records of the plaintiff company, C­forms for years 2011­2012 and 2012­13 on the total sales are still pending on the head of the defendant :

Total Sale during year 2011­12 Rs. 16,28,986.00/­ Total sale during years 2012­13 Rs. 11,53,137.00/­ Since the defendant has failed to submit the required C­forms, hence as per rules the defendant are liable to pay 3% of total sale amount alongwith tax interest of 18% thereupon since their due date. As per the statement of account maintained by the plaintiff company in it's regular course of business, the defendant is still liable for sum of Rs. 11,81,923.00 as on 31.01.2014. It is further submitted that despite asking of the plaintiff company for release of required C­Forms or payment thereof, the proprietor of the defendant and its officials started pleading lame excuses for their above said acts and deeds and asked the plaintiff company that they will arrange the due amount within a week or two alongwith interest and delay payment, but in vain. The defendant even did not furnish the required C­Forms which are rather a valuable security of the plaintiff company in eye of law, the withholding of CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 4 / 11 same will attract criminal prosecution. Plaintiff served the defendant with it legal demand notice dated 24.02.2014 , however despite receiving of the same, the defendant has neither complied with the demands of the same nor replied thereof. It is therefore prayed that a decree for sum of Rs. 13,00,689.00/­ as on 31.01.2014 alongwith interest, pendelite and future there upon @ 24% P.A. since 01.02.2014 till its realization be passed in favour of the plaintiff and against the defendant.

3. In reply to this plaint, the defendant has filed his written statement wherein it is stated that plaintiff has suppressed the material facts and has not approached this court with clean hands. It is submitted that there was a regular dealings between the plaintiff and defendant regarding selling of certain packaging material. In the first meeting, the plaintiff showed very good quality of the material and the defendant ordered some packaging materials. Later the defendant started getting complaints from all his vendor that the packaging material is of very low quality and the vacuum in the packets is not being staying and because of which all the products like chips and other like eatable items are getting soggy and squelchy. This fact was immediately brought in the notice of Mr. Dinesh Singh, Director of the plaintiff company and as such the payments were stopped by the defendant. Later on it was settled that the payment for the above material supplied will not be demanded. Even, Mr. Dinesh Singh also requested for the further supply of the material to the defendant, which will be CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 5 / 11 of good quality. The defendant also agreed for the same and started working again with the plaintiff company. Once again the material supplied by the plaintiff was of inferior quality and the Director and Sales Head of the plaintiff company visited the office of the defendant and the consignment which was returned by the vendor was shown to them and they admitted their fault and requested to settle the matter and also ensured that the quality of the material will be taken care of. The defendant already made the payment of material which was of low quality through three cheques and asked the plaintiff company not to put the cheques as the vendor has not made the payment because of the bad quality product but he is trying hard to get his payments from the vendors. The defendant also asked for the return of his already issued cheques to which it was stated once the settlement amount will be received by the plaintiff company, then the cheques will be returned. It is further stated that the said amount was also paid several RTGS transfers dated 29.08.2012, 14.09.2012 and 01.10.2012 which reflects in the ledger account filed by the plaintiff itself. On 13.10.2012, factory of the defendant was finished due to the fire taken place in the premises and all the documents, equipments, raw material etc. were destroyed and certain documents which were saved from the fire have been misplaced while shifting from the factory and the defendant is still searching/locating for the same as the settlement letter was kept separately so the defendant is hopeful that they may get the same. The plaintiff company after ensuring that all the documents and CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 6 / 11 proofs pertaining to the deals and the settlement of plaintiff and defendant are destroyed in the fire or lost due to shifting as the defendant asked for the copy of settlement letter from the plaintiff, the plaintiff started putting the cheques in the month of December 2012. A complaint u/S. 138 NI Act was filed by the plaintiff which was dismissed. The defendant has also denied each and every ground of alleged cause of action. It is further submitted that the plaintiff has filed the present case by hiding these relevant facts, as such it is prayed that the present suit be dismissed.

3. Replication was filed by the plaintiff in which he has reiterated and reaffirmed the contents of his plaint.

4. Thereafter, on the completion of the pleadings following issues were framed on 27.08.2014.

1. Whether the plaintiff is entitled for recovery, as prayed for? If so for which period and at what rate of interest? OPP.

2. Relief.

6. On 23.08.2014, defendant filed his WS. The defendant started taking adjournments after the filing of the affidavits of plaintiff's witnesses in lieu of evidence and thereafter stopped appearing. Consequently he was proceeded ex­parte on 05.01.2015.

CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 7 / 11

7. Plaintiff in support of its case examined Sh. K.S. Bhatti as PW­1 and relied upon documents Ex. PW1/1 to Ex. PW1/20. Plaintiff also examined PW­2 Sh. Ramesh Goswami and relied upon documents Ex. PW2/1 to Ex. PW2/2. The ex­parte arguments were heard on 21.01.2015 and the case was fixed for Orders thereafter.

8. I have heard the arguments and have carefully gone through the case file. My issue wise findings are as follows :

ISSUE NO. 1

Whether plaintiff is entitled for a decree of suit amount as claimed for, if so for which period and at what rate of interest? OPP.

In order to prove this issue, the plaintiff has examined Sh. K.S. Bhatti as PW1 and deposed on the same lines of the plaint. He has proved the Certificate of incorporation of his firm as Ex. PW1/1, the minutes of meeting authorising him to appear in the Court as Ex. PW1/2, Ledger account of the defendant company as Ex. PW1/3, retail invoices as Ex. PW1/4 (colly), 3 Cheques issued by the defendant company in favour of the plaintiff as Ex. PW1/5 to Ex. PW1/7, Cheque return memos as Ex. PW1/8 to Ex. PW1/10 , legal notice issued by the plaintiff company to the defendant company as Ex. PW1/11, registered cover containing the notice as Ex. PW1/12, tracking report as Ex. PW1/14 and Ex. PW1/15, copy CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 8 / 11 of dismissal order of the complaint and judgment by Ld. CJ as Ex. PW1/16, Legal demand notice Ex. PW1/17, speed post covers containing the notices having remark 'denied' as Ex. PW1/18 and Ex. PW1/19 and the tracking report as Ex. PW1/20.

Plaintiff has also examined Sh. Ramesh Goswami who has been examined as PW­2 and deposed on the similar lines to support the case of the plaintiff and has also proved the authority letter to depose in the Court as PW2/1, certificate of computer generated records of the plaintiff company as true replica as Ex. PW2/2.

During the Court proceedings, the defendant started taking adjournments after filing of the affidavits of the plaintiff's witnesses and thereafter even stopped appearing and consequently, proceeded ex­parte on 05.01.2015. In absence of any defence taken by the defendant, the arguments and averments of the plaintiff remained unchallenged and unrebutted. There is nothing on record to disbelieve the averments made by the plaintiff in his plaint as well as in his evidence with regard to the payment of the booking as well as installment amount. Therefore, issue no.1 is decided accordingly in favour of the plaintiff and against the defendant.

ISSUE No. 2

Relief

7. In view of the aforesaid discussion and decision of the first issue, the plaintiff has been successful in establishing his case CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 9 / 11 and as such he is held entitled to a decree. Hence, the suit of the plaintiff is decreed for a sum of Rs. 13,00,689/­as prayed for in favour of the plaintiff and against the defendant alongwith pendentelite and future interest @ 12% per annum from the date of filing of this suit till the realization of the amount. Costs of the suit is also allowed to the plaintiff.

8. Decree sheet be drawn accordingly. File be consigned to Record Room.

      (Announced in open                                               (LALIT KUMAR)
     Court  on January 24, 2015)                              ADJ­01: South East District
                                                                      Saket , New Delhi.




CS-36/2014                     Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods       pg. 10 / 11
 CS - 36/2014
Kay Sons India Pvt. Ltd. Vs. M/s. Nandini Foods 

24.01.2015 

Present :     AR of the plaintiff 
              Defendant is ex­parte

Vide separate judgment announced today, the suit of the plaintiff is decreed for a sum of Rs. 13,00,689/­as prayed for in favour of the plaintiff and against the defendant alongwith pendentelite and future interest @ 12% per annum from the date of filing of this suit till the realization of the amount. Costs of the suit is also allowed to the plaintiff.

Decree sheet be drawn accordingly. File be consigned to Record Room.

( LALIT KUMAR ) ADJ­1(South East) Saket Courts New Delhi/24.01.2015 CS-36/2014 Kay Sons India Pvt. Ltd. vs. M/s. Nandini Foods pg. 11 / 11