Delhi District Court
M/S Sajben Plastfilms Private Ltd vs Pelicon Packaging on 24 February, 2023
IN THE COURT OF MS. SHRIYA AGRAWAL
JSCC, ASCJ, GJ, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS SCJ 52840/16
CNR No.: DLSE03-002334-2016
M/s Sajben Plastfilms Private Ltd
At-5/28, Kirti Nagar Industrial Area
New Delhi-110015. ... Plaintiff
Versus
Pelicon Packaging
Through it's Proprietor
Sh. Rajender Singh Rawat
At-154, A/31, Block-D
M.B. Ext. Badarpur
New Delhi-110044. ... Defendant
SUIT FOR RECOVERY FOR A SUM OF Rs.1,14,000/-
ALONGWITH INTEREST @ 24 P.A.
Date of Institution of the case : 22.10.2016
Date of reserving judgment : 31.01.2023
Date of pronouncement of judgment : 24.02.2023
JUDGMENT
1. The present suit has been instituted by the Plaintiff against the Defendant for recovery of Rs.1,14,000/- along-with interest @ 24 % p.a. (pendente lite and future interest) from the date of institution of the present suit, till realization of the claimed amount.
CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.1 of 15 CASE OF THE PLAINTIFF AS PER PLAINT
2. The Plaintiff is described to be a Company engaged in the business of manufacturing plastic sheets. It is the case of the Plaintiff that against the Purchase Orders issued by the Defendant from time to time, it had supplied PVC plastic sheets to the Defendant. During the course of the dealings with the Defendant, the Plaintiff had raised invoices/ bills giving details about the PVC sheets supplied, their quantity, rate and price etc. The invoices raised by the Plaintiff were duly accepted by the Defendant and as acknowledgement of the Defendant's liability towards the Plaintiff, payments were being made 'on account' to the Plaintiff. It is further averred that the Defendant had been issuing cheques as part payment in favour of the Plaintiff. After payments made by the Defendant 'on account', it is claimed that as on 31.03.2016, it was liable to pay the balance principal amount of about Rs.1,14,000/- to the Plaintiff. It is specifically stated that the Defendant had issued cheques dated 18.01.2016 bearing No. 582306 of Rs.20,000/-, No.582307 of Rs.23,159/-, No.582311 of Rs.20,000/-, bearing No.582324 of Rs.20,000/- and bearing No.701813 of Rs.6,276/- (all drawn on Canara Bank, Okhla Industrial Estate, New Delhi) seeking to discharge the liability for payments due towards the Plaintiff. The Plaintiff presented the said cheques in its account maintained with the HDFC Bank Ltd, F-38, Kirti Nagar, New Delhi for encashment. The same however returned back dishonored for the reason 'Insufficient Funds'.
CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.2 of 15
3. The fact of dishonor of the aforesaid cheques was immediately intimated by the Plaintiff to the Defendant, whereupon the latter apologized and by informing the former of shortage of funds at the relevant time, requested the Plaintiff to again present the cheques. Upon being assured that the dues would be cleared, the Plaintiff again presented the said cheques for encashment. The same however yet again returned back dishonored for the reason 'Insufficient Funds'. The Defendant failed to keep its commitment and did not make the payment to the Plaintiff, despite assurances given. One of the terms of the aforesaid invoices, raised by the Plaintiff, as duly printed on the same, was that in case the invoice was not paid within 30 days from the date of the invoice, the Plaintiff shall be entitled to charge interest at the rate of 24% per annum. The said liability of interest at the agreed rate had also accrued on the due amount of Rs.1,14,000/- with effect from 01.04.2016 till the date of actual payment.
4. The Defendant was thereafter served with a legal notice dated 22.04.2016 sent by the Plaintiff for the payment of the outstanding liability. However, the Defendant has failed to pay the amount of Rs.1,14,000/- despite service of the aforesaid Notice by the Plaintiff.
5. Hence, the present suit was instituted for recovery qua the arrears as reflecting as due as per the Statement of Account maintained by the Plaintiff with respect to the dealings with the Defendant.
CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.3 of 15 WRITTEN STATEMENT OF DEFENDANT
6. Per Contra, the Defendant has stated that the claim of the Plaintiff in the present suit is barred by limitation. It is asserted that the cheques mentioned in the suit had been given to the Plaintiff as security in the year 2012-2013 and the same were liable to be returned to the Defendant, as payment against the supply of the goods had already been made. The Plaintiff after three years of last transaction presented the cheques in the bank to extract more money in the month of February 2016. It is further stated that the Plaintiff has consciously not filed invoices/ challans of supply of goods to the Defendant in the lis to conceal the true position. It is stated further that according to the ledger account, the last invoice was of 24.01.2013 and present suit had been filed in the month of October 2016, rendering the claim in the suit as time-barred. The Defendant has also pointed out the defect of non-joinder, stating that the proprietor of the Defendant Firm has not been made a party to the suit. When the said objection was raised, the Plaintiff amended the suit in the year 2020.
7. It is averred that the Plaintiff's Director is also running a business under the name and style of 'M/s Swastik Packaging' and that the Defendant on the direction of Plaintiff had duly deposited the money in the account of 'M/s Swastik Packaging' bearing No.03638020000493 (maintained with the HDFC Bank), with part payment made in cash. The said payment, despite receipt is stated to have been not shown in the account statement annexed with the suit by the Plaintiff. The Plaintiff is also CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.4 of 15 pointed to have also not filed the documents related to defective goods which were received back by it and their value has not been shown either. It is claimed that there is nothing due against the Defendant as the entire payment against the supply of goods has already been made through cheque as well cash and also by way of deposit in the account of another firm of Plaintiff viz. 'M/s Swastik Packaging'. It is further stated that the cheques enclosed by the Plaintiff are liable to be returned to the Plaintiff and that they have been misused by the Plaintiff to create a false ground to seek more recovery from the Defendant.
ISSUES FRAMED
8. Vide Order dated 30.03.2021, the Ld. Predecessor had framed the following issues in the present suit:
a). Whether the suit of the Plaintiff is barred by limitation? OPD.
b) Whether the Plaintiff is entitled for a decree in favour of Plaintiff and against the Defendant for recovery of Rs.1,14,000/-? OPP.
c) Whether the plaintiff is entitled for any interest, if any, then at what rate and for what period? OPP.
d) Relief. PLAINTIFF EVIDENCE
9. The Plaintiff deposed through its Director as PW1, on the strength of his affidavit Ex. PW1/A, also tendering in evidence, Copy of Board Resolution dated 17.11.2021 (Ex PW1/1), Copy of statement of account (Ex.PW1/2), six cheques (all dated CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.5 of 15 18.01.2016) issued by the Defendant [Ex.PW1/3 (colly)], cheque returning memos [Ex.PW1/4 (colly)], copy of sale tax statement (Ex.PW1/5), copy of legal notice dated 21.04.2016 (Ex.PW1/6) and postal receipts (Ex.PW1/7).
10. During his cross examination by the Ld. Counsel for Defendant, the witness stated that there are two directors in the Plaintiff Company viz. he, himself and Mr. Sanjay Sidhar. He acknowledged that Ex.PW1/1 was neither signed by Mr. Sanjay Sidhar nor bore the seal of the Plaintiff Company, further stating that at the time of institution of the present suit, Mr. Sanjay Sidhar was one of the directors of the Plaintiff Company and at the time of deposition, his wife Ms. Vijay Laxmi was one of the directors too. He denied the suggestion that the suit had not been filed through a duly authorized person. The witness stated that he had handed over the board resolution (Ex.PW1/D1) to his counsel. He acknowledged that Ex.PW1/D1 had not been signed by Mr. Sanjay Sidhar (the other Director), explaining that he was not working as a director at the relevant time, as he was a silent director and that PW1 himself was the Managing Director.
11. The witness denied the Plaintiff having any concern with M/s Swastik Packaging Company and the claim that the Defendant had transferred the payments in the account of M/s Swastik Packaging Company at his request. He was confronted with four tax invoices issued by M/s Swastik Packaging Company [Ex.PW1/D2 (colly)], when after seeing them, he denied his signatures at point A. He stated that he did not have any other document as could show that the goods had been delivered to the Defendant, as the record of the Plaintiff CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.6 of 15 Company had been destroyed in a fire incident. He acknowledged that he would usually receive cheques from the Defendant before supplying the goods, but not always.
12. He further denied the suggestion that the Plaintiff had returned the security cheque to the Defendant, when payment had been made in cash against the goods supplied to him, claiming that no such security cheque was ever issued. The goods were last supplied in the year 2014-2015 and the defendant never placed any purchase order in writing. All the six cheques placed on record were issued by the Defendant on the same date after supply of goods and that too after follow up and several months of supply. He admitted that the Plaintiff had not supplied the goods to the Defendant after 2013. When asked as to whether the dues pressed for in the present suit were also reflecting in his Income Tax Return for the period 2012-2018 (Ex PW1/D3), the witness stated that the same would have reflected in the Balance Sheet or Statement of Account. The witness was confronted with his affidavit towards evidence and asked to explain the inconsistency in his deposition concerning the manner in which orders were being placed, to which he stated that initially the purchase orders were being placed in writing, but thereafter the same were being placed through SMS and even at times orally, explaining that there is always a purchase order or request made against which the supply is made.
13. He stated that he could not produce any documents since there was a major outbreak of fire at his factory on 1.1.2015. He was asked thereafter to explain as to on what basis the witness had stated that the bills raised by him were duly accepted and CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.7 of 15 acknowledged by the Defendant and the latter had been making payments to the Plaintiff, when the records were destroyed due to the alleged outbreak of fire. He stated in response that not all records were destroyed and the bills etc, were in the possession of his Chartered Accountant.
14. He affirmed that all the invoices raised qua dealings inter- se the Plaintiff and Defendant have been mentioned in Statement of Account (Ex.PW1/B). He admitted that after 24.01.2013 no goods were supplied to the Defendant. The witness was confronted with the bills of the Plaintiff [Ex.PW1/D4 (colly)] and was asked if he admitted the same. The witness answered in the affirmative. He also confirmed that the seal and signatures on these bills were of the Plaintiff, though stating that the same had been prepared by his staff. He stated that the name of his wife is Ms. Vijay Laxmi Goyal and she is also running a business under the name of M/s Swastik Packaging.
15. The witness was confronted with certain other bills (Ex PW1/D2) and asked if they belong to M/s Swastik Packaging, to which the witness answered in the affirmative. He admitted that Mr. Jitender Singh was an employee with him and both the set of bills (Ex PW1/D2 and Ex PW1/D4) were in his handwriting. He stated that he himself also helps his wife in her business on her asking.
DEFENDANT EVIDENCE
16. The Defendant deposed through the proprietor Mr. Rajender Singh Rawat on the strength of his affidavit Ex.DW1/A CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.8 of 15 and additional affidavit Ex DW1/A2. During his cross examination by the Ld. Counsel for Plaintiff, the witness stated that he has been having business dealings with the Plaintiff since the year 2008-2009. He acknowledged that no purchase orders were formally placed with the Plaintiff and that they would be made telephonically. The Plaintiff would raise bills for purchases made and after supply of products, the payment for the same would be cleared. The same would be made at times in cash and at times through cheques. He stated that no dues were pending after 24.01.2013.
17. As regards the subject cheques, the witness stated that they were meant to be returned after payment, for which demand was made, though not through any written document. He admitted that there was no proof of the payment made towards the cheques to the Plaintiff, as the same was made in cash. He further acknowledged that no complaint had been formally lodged with respect to non-return of the original cheques by the Plaintiff. He admitted that he was also dealing with one M/s Swastik Packaging, from which concern he would purchase raw material. When asked about the subject cheques, the witness admitted that he had handed over the same to the Plaintiff through an employee of the latter. The payments were already cleared in the year 2013 and the cheques were belatedly presented for encashment in the year 2016, when there were no dues remaining. He stated that there was no understanding between the parties with respect to any interest becoming liable to be paid in case of delayed payment.
CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.9 of 15 APPRAISAL
18. Final arguments were heard threadbare. The record has been carefully perused.
19. The Defendant has questioned the pursual of this suit and evidence led by the purported AR on the objection of there being no proper authorization in his favour. The said objection has been raised in the cross examination of the witness for the Plaintiff, even though no connecting issue was framed by the Ld. Predecessor. There have been specific objections taken to the Board Resolution dated 17.2.2021 (EX PW1/1) at the time of evidence in chief being led by the witness i.e., Mr. Pawan Goel (Director of the Plaintiff Company) and also to the Board Resolution dated 10.7.2016 (Ex PW1/D1) passed in favour of the Original Authorised Representative who had instituted the present suit for the Plaintiff. Although, certain specific issues qua the former document not bearing the seal of the Company or the signatures of the other Director Mr. Sanjay Sridhar were raised during the cross examination of Mr. Pawan Goel (Director of the Plaintiff Company), the said concerns or irregularities, if any, pale into insignificance, since not only are the dealings inter-se the parties admitted, but it stands also noticed that it is the same person, who has signed both the Resolutions on record and no objection was taken at the stage of the deposition of PW1 being recorded by the Court, by the Defendant, to the former recording his evidence for the Plaintiff Company.
20. The Defendant, as regards the claim on merits, has acknowledged that there were commercial dealings inter-se the parties till 24.1.2013. Although questions have been posed to the CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.10 of 15 witness for the Plaintiff, concerning non-disclosure of invoices on the basis of which the claim has been stated to be made out as asserted, it is equally pertinent to note, that the supply of products is also not in dispute. The witness for the Plaintiff (PW1) during his cross examination was infact also specifically asked if the terms and conditions of supply and purchase had continued to remain the same in 2013 as in the year 2008. This plea was admitted by the witness and thereafter not controverted by the Defendant. It is a matter of record that the invoices of previous dealings (Ex PW1/D4) have been produced in evidence, and the same have been acknowledged to be those of the Plaintiff, by its witness. Accordingly, with the period, up-till which the supply is admitted to have been completed by the Defendant, also having gone undisputed, the ledger account statement and the subject cheques issued for the liability as outstanding in favour of the Plaintiff, are found sufficient to corroborate its case.
21. The subject cheques [Ex PW1/3 (colly)] dated 18.1.2016 which were issued in favour of the Plaintiff and their corresponding return memos reflecting their dishonour bear the following details:
S.No Cheque Amount Date of First Second
No. (in Cheque Dishonour Dishonour
Rupees)
1 582306 20,000/- 18.01.2016 11.02.2016 19.02.2016
2 582307 11,473/- 18.01.2016 16.02.2016 22.02.2016
3 582310 23,159/- 18.01.2016 11.02.2016 19.02.2016
4 582311 20,000/- 18.01.2016 16.02.2016 22.02.2016
5 582324 20,000/- 18.01.2016 16.02.2016 22.02.2016
6 701813 6276/- 18.01.2016 16.02.2016 22.02.2016
CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.11 of 15
22. The Defendant has admitted the issuance of these cheques, though alleging their misuse, claiming that the dues had been transferred in the account of M/s Swastik Packaging, at the instance and on instructions of the Plaintiff. The witness PW1 during his cross examination has admitted that his wife Ms. Vijay Laxmi Goyal, is running her business under the afore-said trade name and one Mr. Jitender Singh had been assisting in both the concerns viz. the Plaintiff and M/s Swastik Packaging, having admittedly prepared their respective bills (Ex PW1/ D2 colly and Ex PW1/ D4 colly). Even though, PW1 (Director of the Plaintiff) and his employee claim to have been assisting in the running of the business of the said M/s Swastik Packaging, a concern run by the wife of PW1, it is not the case of the Defendant in defence that they are not distinct set-ups/ Companies, in so far as, payment made in the account of one would serve as payment in the account of the other.
23. It is settled law as also provided under S. 103 of the Indian Evidence Act and also reiterated in Surendra Pal v Saraswati Arora [(1974) 2 SCC 600] , that the burden of proof lies on the one who asserts the existence of a fact. It is also trite law as laid down in Bajnathi Prosad v Kausalya Kuer [AIR 1981 Pat 187] that issuance of cheques is an acknowledgement of a subsisting liability, unless the contrary is proven, even for the purpose of Section 18 of the Limitation Act, 1963. The Defendant has admitted issuing the cheques [Ex PW1/3 (colly)], though as undated, in the name of the Plaintiff. There is nothing on record to raise doubts over their dishonour either. It was therefore incumbent upon the Defendant to establish that there was no CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.12 of 15 existing legally recoverable liability of the products received towards the Plaintiff, with payment having been duly paid already, as claimed. The Defendant has failed to adduce any proof qua the same, an omission also admitted by its witness DW1 in his cross examination.
24. The Defendant has therefore clearly failed to prove that the cheques were not meant to be encashed towards any subsisting dues and were liable to be returned. The ledger account statement (Ex PW1/2) of the Plaintiff has also been proved with nothing to the contrary having come on record as can render its genuineness doubtful. If the parties were at variance over the quantum of dues, the Defendant ought to have produced its ledger statement to establish otherwise. This being not the case, with the sole defence taken being that of the dues, to whatever extent existent, having already been cleared, with the Defendant not leading any evidence to even show the alleged transfer of payment to the other concern, its defence has gone completely unsubstantiated. The cheques therefore can only be considered as issued for the dates they bear. The said date of 18.1.2016 (reflecting on all the cheques) falls within the period of three years from the date of last admitted dealing i.e. 24.1.2013. The cheques therefore served as an acknowledgment of liability from the Defendants, having been tendered during the aforesaid period of three years, further extending the period of limitation in terms of Section 18 of the Limitation Act, 1963. Accordingly, the suit having been filed in October 2016 cannot be said to be barred by the law of limitation.
CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.13 of 15 ISSUE-WISE FINDINGS :
25. Accordingly, for the above discussed reasons, the issues framed in the lis are being decided as under :
(a) Whether the suit of the Plaintiff is barred by limitation? OPD Finding : This issue is decided in favour of the Plaintiff, against the Defendant for the reasons discussed above.
(b) Whether the Plaintiff is entitled for a decree in favour of Plaintiff and against the Defendant for recovery of Rs.1,14,000/-? OPP.
Finding : This issue for the afore-discussed reasons is decided in favour of the Plaintiff against the Defendant.
(c) Whether the plaintiff is entitled for any interest, if any, then at what rate and for what period? OPP.
Finding : This issue for the discussed reasons, is also decided in favour of the Plaintiff against the Defendant. Although the Plaintiff has established its claim for recovery, upon which dues, interest is liable to be paid too, on account of want of original invoices for the relevant period, interest at the rate of 8 % p.a. is being awarded as opposed to the claimed rate.
RELIEF
26. Thus, for the above discussed reasons, the suit of the Plaintiff stands decreed in favour of the Plaintiff against the Defendant for recovery of Rs. 1,14,000/- along with interest CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.14 of 15 @ 8 % p.a., from the date of filing of suit till realisation of the decretal amount.
27. Decree sheet be prepared. File be consigned to Record Room as per Rules.
(Pronounced in the open court) (Shriya Agrawal) JSCC cum ASCJ cum GJ South East District/Saket Courts 24.02.2023 CS SCJ 52840/16 M/s Sajben Plastfilms Pvt Ltd Vs Pelicon Packaging Page No.15 of 15