Delhi District Court
Pentex Engg. P. Ltd. vs . M/S. Techno Feb Engg. Ltd. Cs No. ... on 18 April, 2017
Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16
IN THE COURT OF SHRI NARESH KUMAR MLAHOTRA
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI
CS No. 18465/16
Old No. 207/10/04
M/s. Pentex Engineering Pvt. Ltd.
Through its authorized representative
Bharat Velvet Compound
Safed Pool, Sir M. Vasanji Road
Mumbai - 400072 . .....Plaintiff
Vs.
M/s. Techno Fab Engineering Ltd.
502, Eros Apartments
56, Nehru Place, New Delhi 110019. .....Defendant
Date of Institution : 09.07.2004
Date of Reserving Judgment : 17.04.2017
Date of Judgment : 18.04.2017
Suit for Recovery of Rs.3,37,120/
1.This is a suit for recovery of Rs.3,37,120/ filed by the plaintiff against the defendant. In the plaint, it is mentioned that the plaintiff is a company duly incorporated and registered under the provisions of the Indian Companies Act, 1956 as a Small Scale Industries and has its principal place of business and registered office at Bharat Velvet Compund, Safed Pool, Sir M. Vasanji Road, Mumbai. Sh. S. R. Patel is the authorized Result : suit decreed 1/8 Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16 representative and Sr. Manager (Personal and Administration) of the plaintiff company and competent to sign, verify and file the present suit vide Board Resolution dated 19.05.2004.
2. It is further averred in the plaint that the plaintiff company is engaged in the business of manufacture of Fixed Gas Monitoring System for Combustible and Toxic Gases in India. The defendant is a company duly registered under the provisions of the Companies Act, 1956 and having its registered office at 502, Eros Apartments, 56, Nehru Place, New Delhi. The defendant vide its letter dated 29.01.1998 approached the plaintiff for placing its order of a Gas Detector for its Naptha plant and invited quotations for a Hydrocarbon Detector System along with its transmitter, receiver, pan tilt mounts etc. The defendant also called for quotations for accessories of the above Gas Detector, which included junction boxes, calibration kits and multichannel rackmounted combustible gas panel. Thereafter, further confirmation / clarifications were called by the defendant regarding the offer of the plaintiff. The defendant deputed an official to inspect the 14 Channel Gas Detection Systems prepared as per the purchase order. After having the inspection done and satisfying itself the defendant vide its fax letter dated 12.01.1999 confirmed the inspection report and requested the plaintiff to dispatch the materials through Kerala Transport Co. on part load basis. The plaintiff dispatched the material and raised its bill dated 27.01.1999 for a sum of Rs.2,90,518/. Plaintiff requested the defendant to make payment through various letters dated 29.03.1999, 18.04.1999, 06.05.1999, 24.05.1999 and 04.06.1999. The defendant released an amount of Rs.50,000/ vide cheque no. 811313 dated Result : suit decreed 2/8 Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16 16.06.1999. Thereafter, no payment was made by the defendant. The plaintiff received a letter dated 01.03.2001, from M/s. BSES Ltd. Enclosing a cheque for the amount of Rs.48,900/ after deducting tax at source, as part payment of outstanding dues of the plaintiff against the defendant. After deducting the above mentioned amount a sum of Rs.1,90,518/ was due. The plaintiff sent a legal notice dated 06.12.2003, calling upon the defendant to pay the outstanding balance of Rs.1,90,518/ but no amount was paid by the defendant. Hence, the present suit.
3. The defendant filed written statement and had taken preliminary objection that the plaintiff has filed the suit on false and frivolous grounds. The suit is barred by limitation as more than 3 years has been expired from the date of last transaction occurred with the plaintiff. The last transaction was done with the plaintiff on 01.03.2001 when M/s. BSES Ltd. made the payment of Rs.48,900/ and the suit is barred by limitation.
4. In reply on merits, it is mentioned that the plaintiff did not supply the entire quantity as desired by the defendant vide its purchase order dated 18.08.98. The plaintiff failed to supply the ordered quantity of the material and as a result, the material provided by the plaintiff could not be installed at the site of the defendant's client who in turn withheld the payment of the defendant on account of delay in handing over and commissioning the plant. It is denied that the plaintiff had fulfilled its part of the contract. Due to incomplete supply of material by the plaintif to the defendant, the defendant's credibility was at stake and this ultimately resulted in inflicting of liquidated damages. Other averments of the plaint were denied.
Result : suit decreed 3/8Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16 Dismissal of the suit is prayed by the defendant.
5. The plaintiff filed replication and controverted the allegations written in the written statement and reaffirm the contents of the plaint.
6. On 01.09.2005, following issues were framed :
ISSUES :
i). Whether the suit is barred by Limitation ? OPD.
ii). Whether the suit has not been duly signed, verified and instituted by competent person ? OPP.
iii). Whether the plaintiff is entitled to recover an amount of Rs.3,37,120/ from the defendant ? OPP.
iv). Whether the plaintiff is entitled to interest, if so, at what rate and from what period ? OPP.
v). Relief.
7. In evidence, the plaintiff has examined Sh. S. R. Patel, Sr. Manager of plaintiff company, as PW1 whereas, no witness has been examined by the defendant.
8. I have heard the Ld. Counsels for the plaintiff and the defendant and perused the record carefully. My issues wise findings are as under :
ISSUE No. 1 : Whether the suit is barred by limitation ? OPD.
The burden to prove this issue is on the defendant. It is vehemently contended by counsel for defendant that the present suit is Result : suit decreed 4/8 Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16 barred by limitation. It is also contended that the representative of the defendant had made a payment of Rs.48,900/ on 01.03.2001 after deduction of TDS to the plaintiff on behalf of defendant by way of demand draft and the present suit being filed on 12.07.2004 is beyond the period of limitation.
On the other hand, Ld. Counsel for the plaintiff has contended that the defendant has filed a list of its creditors before SEBI and in para no. 8 of that declaration he has admitted that a sum of Rs.3.37 lakhs is due towards the plaintiff. There is no date on this declaration and as per para no. 8, the defendant has only mentioned that the plaintiff has filed summary suit before the Additional District Judge for recovery of an amount of Rs.3.37 Lakhs including interest @24% p.a. It is also claimed by the plaintiff that it had supplied gas detectors for a naptha plant for which only part payment had been made by our company. Our company is disputing the claim made by the plaintiff and has also filed its written statement before the court. Hence, there is no acknowledgment before the SEBI that the plaintiff owes a sum of Rs.3.37 lakhs. It is also contended by the counsel for plaintiff that the defendant has sent a letters dated 21.03.2002 and 05.04.2002 wherein it is mentioned that they want to settle the matter.
9. I have perused the letters. In both the letters, the defendant has not admitted the liability of the suit amount. In the declaration to the SEBI, the defendant has not admitted that plaintiff owes a sum of Rs.3.37 lakhs. It is only mentioned that plaintiff company has filed a suit for recovery and the defendant company is disputing the claim. Thus, there is no admission on the part of the defendant.
Result : suit decreed 5/8Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16
10. Section 18 of the Limitation Act reads as under :
1). "Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
2). Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received."
The defendant has nowhere admitted before the expiration of the period of limitation as it owes a suit amount against the plaintiff. The counsel for the plaintiff has placed reliance on the judgments 185 (2011) DLT 428 in case titled Bhajan Singh Samra Vs. Wimpy International Ltd., Rishi Pal Gupta Vs. S. J. Knitting And Finishing Mills P. Ltd., 202 (2013) Delhi Law Times 735 in case titled Shahi Exports P. Ltd. & Anr. Vs. CMD Buildtech Pvt. Ltd. I have perused these judgments but none of the judgments is applicable to the facts of the present case in hand. As the defendant in the balance sheet has not acknowledged the debt of the plaintiff. The counsel for the defendant has also placed reliance on the judgment in case titled Moidu Vs. Kerala State Electricity Board.
I am of the view as the limitation expired on 01.03.2004 and before the expiration of the period of limitation, the defendant had not acknowledged the amount. Thus, the limitation is not extended as per Result : suit decreed 6/8 Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16 section 18 of the Limitation Act. Moreover, the counsel for the defendant has drawn my attention towards explanation of section 18 and he also contended that this explanation is not applicable as the defendant has nowhere acknowledged the amount. I am of the view that as the defendant has no where acknowledged the debt of the plaintiff. I am of the view, the present suit being filed on 12.07.2004 is beyond the period of limitation and this issue is decided in favour of the defendant and against the plaintiff.
10. ISSUE No. 2 : Whether the suit has not been duly signed, verified and instituted by competent person ? OPP.
The burden to prove this issue is on the plaintiff. The plaintiff has proved that the suit has been signed, verified and instituted by competent person and it has also proved the copy of the board resolution. This issue is decided in favour of the plaintiff and against the defendant.
11. ISSUE No. 3 & 4 : Whether the plaintiff is entitled to recover an amount of Rs.3,37,120/ from the defendant ? OPP.
Whether the plaintiff is entitled to interest if so, at what rate and from what period ? OPP.
Both the issues are interconnected. As I decided the issue no. 1 against the plaintiff, accordingly these issues are decided against the plaintiff and in favour of the defendant.
12. ISSUE No. 5 : Relief.
In view of the findings, the suit of the plaintiff is without any merit and the same is hereby dismissed without any costs.
Result : suit decreed 7/8Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16
13. Decree Sheet be prepared accordingly.
14. File be consigned to Record Room.
(Naresh Kumar Malhotra)
DATED 18.04.2017 ADJ:06 (Central) Delhi
Announced in the open court
Result : suit decreed 8/8
Pentex Engg. P. Ltd. Vs. M/s. Techno Feb Engg. Ltd. CS No. 18465/16
CS No. 18465/16
Pentex Engg. P. Ltd. Vs. Techno Fab Engineering Ltd.
18.04.2017 Present : Counsel for plaintiff.
Vide separate judgment, the suit of the plaintiff is dismissed without any costs. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(Naresh Kumar Malhotra) ADJ:06 (Central) Delhi 18.04.2017 Result : suit decreed 9/8