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Delhi District Court

Sh. Mahesh Gupta vs M/S. Nirmal Cars Pvt. Ltd on 3 October, 2019

          IN THE COURT OF SH. MAYANK GOEL: CIVIL JUDGE­09
                 CENTRAL: TIS HAZARI COURTS : DELHI


CS no. 60084/16

Sh. Mahesh Gupta, Proprietor,
M/s Material Handling System,
12­H, New Daryaganj,
Opp. Traffic Kotwali,
Near Shanti Van,
New Delhi­110002                                                      .....Plaintiff



                                          Versus


M/s. Nirmal Cars Pvt. Ltd.,
Khasra No. 4, OS
Mahindra Lane,
Palli Road, Jodhpur,
Rajasthan                                                             .....Defendant


     SUIT FOR RECOVERY OF RS. 1,16,337/ (RUPEES ONE LAKH SIXTEEN
     THOUSAND THREE HUNDRED THIRTY SEVEN ONLY) ALONG WITH
                    PENDENT LITE AND FUTURE INTEREST


                            Date of institution : 22.12.2015
                            Date of decision    : 03.10.2019
                            Final Order         : Dismissed


                                      JUDGMENT

BRIEF FACTS

1. The brief facts of the present case are that the plaintiff has filed the present suit being proprietor of M/s Material Handling System against the defendant. That the CS No. 60084/16 Mahesh Gupta Vs. Nirmal Cars Ltd. Page 1 of 5 plaintiff is doing business of supplying and fabrication of various items including vitrified tiles, slotted angles, etc. at 12­H, New Darya Ganj, Opposite Traffic Kotwali, Near Shantivan, New Delhi. The defendant is running its business of selling automobiles. That the defendant placed the order and purchased slotted angles, workers locker, filing cabinet, body paint racks amounting to Rs. 6,39,486.25/­ inclusive of VAT and cartridge charges through invoices bearing No.1152 dated 28.05.2014 and 1181 dated 12.08.2014 and said goods were duly received by the defendant. That the defendant had paid a sum of Rs. 5,57,559/­ and Rs. 81,927/­ was remained unpaid. The defendant failed to adhere to financial discipline and defaulted in making further payment despite several reminders. That the plaintiff served a legal notice dated 28.07.2015 to the defendant. That the defendant is liable to pay a sum of Rs. 1,16,337/­ as on 22.12.2015 to the plaintiff. Thus, the present suit has been filed by the plaintiff against the defendant seeking the decree of Rs. 1,16,337/­ alongwith pendent lite and future interest @ 18% per annum.

2. Summons of the suit for the settlement of issues were issued to the defendant and defendant had filed his written statement.

3. In his WS, the defendant has raised certain preliminary objections that the suit has not been filed by authorized person and the present Court has no territorial jurisdiction to try the present suit. It is further stated that the defendant has already made the complete payment against the invoices and no balance is left to be paid to the plaintiff. That the plaintiff has not filed any statement of account. That the defendant had not placed any order at Delhi rather the plaintiff procured the order from the defendant at Jodhpur, Rajasthan. That no cause of action has arisen against the defendant and in favour of the plaintiff.

4. Thereafter, plaintiff has filed replication to the WS of the defendant denying all the averments made in the WS and reiterating the facts mentioned in the plaint.

5. After completion of pleading, the following issues have been framed in the present suit vide order dated 19.01.2017 :­

1. Whether the plaintiff is entitled for recovery as prayed for? OPP.

2. Whether the plaintiff is entitled for interest if, yes, at what rate and for what period? OPP.

3. Whether the Court has no territorial jurisdiction to try the matter? OPD.

4. Relief.

6. In his evidence, the plaintiff examined himself as PW1, who tendered his evidence by way of affidavit Ex. PW1/A and relied upon documents i.e.,

1. Office copy of invoice dated 28.05.2014 bearing No. 1152 for a sum of Rs.

4,43,995/­ is Ex.PW1/1.

2. Office copy of invoice dated 12.08.2014 bearing No. 1181 for a sum of Rs.

1,95,491.25/­ is Ex.PW1/2.

3. Copy of legal notice dated 28.07.2015 is Ex. PW1/3.

4. Original reply to legal notice dated 08.09.2015 is Ex.PW1/4.

PW­1 is duly cross­examined by Ld. Counsel for the defendant. Thereafter, PE is closed.

7. The defendant has not lead any evidence and his right to lead DE was closed vide order dated 29.01.2019.

8. Issuewise finding are as follows:­ Issue No. 1 & 2 Since both the issues are interconnected and can be decided by common discussion, therefore both these issues have been taken together.

The burden to prove these issues are on the plaintiff. In order to prove these CS No. 60084/16 Mahesh Gupta Vs. Nirmal Cars Ltd. Page 3 of 5 issues, the plaintiff has placed on record the Ex.PW1/1 and Ex.PW1/2 which are the invoices of the goods sent by the plaintiff to the defendant. It is stated by the plaintiff in his evidence by way of affidavit that the defendant has paid the amount of Rs. 5,57,559/­ out of the total amount of Rs. 6,39,486.25/­ and balance left is Rs. 81,927/­. The plaintiff has not placed on record any document to prove the fact that payment has been made by the defendant and the alleged balance is left to be paid by the defendant. Moreover, in his cross­examination, PW­1 deposed that he has mentioned all the payment made by the defendant in his ledger account/statement of account but he had not filed the same in the present suit. It is also deposed by PW­1 in his cross­examination that he did not remember how much amount has been left against the defendant. This shows that plaintiff though maintain the ledger account of the defendant has not placed on record the ledger account in order to prove the fact that Rs. 81,927/­ is left to be paid by the defendant. No other documentary proof has been placed on record and no other witness has been examined by the plaintiff to prove the fact that defendant had paid certain amount as alleged and certain amount is still unpaid as alleged. Therefore, the plaintiff failed to prove his case.

In view of these facts, reasons and circumstances, issues No. 1 and 2 are decided against the plaintiff and in favour of the defendant.

Issue No. 3.

The burden to prove this issue is on the defendant. No evidence has been led by the defendant and his right to lead DE was closed vide order dated 29.01.2019. Therefore, defendant failed to prove this issue.

Accordingly, issue No. 3 is decided against the defendant and in favour of the plaintiff .

Relief:

9. In view of the discussion above, the present suit is dismissed.

10. Parties to bear their own costs.

11. Decree sheet be prepared accordingly.

File be consigned to record room after due compliance.

MAYANK Date:

                                                        GOEL     2019.10.03
                                                                 09:10:56
                                                                 +0530


Announced in the open Court.                            (Mayank Goel)
                                                  Civil Judge­09, Central
                                                  Tis Hazari Courts, Delhi
                                                         03.10.2019




CS No. 60084/16          Mahesh Gupta Vs. Nirmal Cars Ltd.                  Page 5 of 5