Delhi District Court
M/S. Vijay K. Goel & Co vs M/S. Shri Sai Industrial Spares on 6 July, 2022
IN THE COURT OF SH. MANOJ KUMAR, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER (EAST), KKD: DELHI
CNR No. DLET030009752017
CS No.: 513/17
M/s. Vijay K. Goel & Co.
Chartered Accountants,
D94, Pandav Nagar, Patpar Ganj Road,
Delhi110092 (India)
Through C.A. Ajay Goel (Partner)
.........Plaintiff
Versus
1. M/s. Shri Sai Industrial Spares
D55A, Pandav Nagar,
Patpar Ganj Road,
Delhi110092
Also at :
341B, GF, BlkD2, Hari Nagar Extn.,
PartIII, Near Delhi Wine Shop, Jaitpur,
Badarpur, Delhi110044
2. Mr. Bhed Singh
F111, Hari Nagar,
Jaitpur, Badarpur,
Delhi110044
Also at :
E51, Gali No.3,
Hari Nagar Extn,.
Near MCD Public School, Jaitpur,
Badarpur, New Delhi110044
......... Defendants
CS No.: 513/17 Page 1 of 12
Date of Institution : 07.07.2017
Date of reserving of judgment : 20.05.2022
Date of pronouncement of Judgment : 06.07.2022
JUDGMENT
1. By this judgment, the court shall decide the present suit for recovery of ₹ 2,26,138.138ps (Rs.1,73,953/ Principal Plus Rs.52,185.90ps interest) along with pendentelite and future interest @ 18% per annum.
2. The briefly stated facts as per the plaint are that plaintiff is a partnership firm of Chartered Accountants by profession and Sh. Ajay Goel, CA is working as partner in M/s. Vijay Kumar Goel (Goyal) & Co. (plaintiff) from the aforesaid address i.e. D94, Pandav Nagar, Patpar Ganj Road, Delhi110092 (India). It is stated that defendant no.2 being the proprietor of the defendant no.1 contacted the plaintiff firm for rendering professional services for not only managing the accounts of defendants, but also for filing of VAT, CST & Income Tax returns of his proprietorship concern i.e. the defendant no.1. The plaintiff firm has been very diligently performing their duties and had done complete accounting on the monthly basis for the F.Y. 20112012, 20122013, 20132014, & 20142015 besides filing of all the VAT, CST returns of the defendant no.1. The plaintiff firm has also filed the income Tax return of the defendant no.2 for the year 20112012, 20122013 & 20132014.
3. It is been averred that income return for the F.Y. 20142015 could not be filed by the plaintiff firm owning to the lapse of supplying the documents upon the part of the defendants. The plaintiff office has been reminded the defendants time and again with the emails dated 08.06.2015, 13.06.2015 & 20.06.2015 for supply of the documents, but nothing was heard from the CS No.: 513/17 Page 2 of 12 defendants. It is further stated that taxation department for the F.Y. 20112012 had asked the defendants to deposit some dues taken out/made out by the department, but the defendants never deposited the said dues and kept the things pending and for the said reason, the Cforms were also not issued by the department as the tax demand was not complied by the defendants. It is further stated that bills of the professional service for the F.Y. 201122012, 20122013, 20132014, 20142015 have been duly supplied to the defendants upon the proper acknowledgement, but they have been avoiding making the payment of the professional fee of the plaintiff firm.
4. It is been averred that plaintiff firm was taken by surprise on receiving the defendant's email dated 16.10.2015 whereby the defendants had declined to make the payment of the professional fees for the year 20122013 unless and until the Cfirms for the F.Y. 20112012 are not handed over by the plaintiff. It was also stated in the email that payment of the period of 201415 will not paid because the plaintiff firm has not filed the income tax return and defendants have not received any Cform from plaintiff firm. It is further stated that plaitiff firm's job is to help the defendants in documentation and preparation of application for issuance of C forms and not to visit the department and get the forms issued to the defendants.
5. It is been averred that a sum of Rs.2,26,136.90ps (Principal Rs.1,73,953/ plus interest Rs.52,185.90/) is due towards the defendant till 30.06.2017 and the defendants are liable to pay the pendentelite & further interest @ 18% per annum till the date of recovery of the amount till interest.
6. Thus, on the above stated grounds, plaintiff has prayed for a decree for recovery of Rs.2,26,138.90ps alongwith pendentelite and future interest @ 18% per annum towards the suit amount till the date of realization of the amount.
7. Summons were issued to the defendants which were duly served. The defendants filed a written statement wherein they vehemently opposed the CS No.: 513/17 Page 3 of 12 allegations and contentions of the plaintiff. Amongst the preliminary objections, it has been contended that plaintiff had not disclosed the various payments received by it since the year 2011 both in cash as well as through cheques. It is stated that at present Sh. Sanjay Singh is the sole proprietor of the defendant no.1 and suit is not maintainable being bad for misjoinder & nonjoinder of the parties. It is denied for the want of knowledge that Sh. Ajay Goel is authorized or competent to file case on or behalf of the firm as alleged. It is not denied that plaintiff firm has filed the income tax return of the defendant no.2 for the year 201112, 2012 13 & 20132014 as alleged. However, plaintiff utterly failed to perform the various tasks entrusted to it. Though, the plaintiff firm was engaged way back in 2011, it neither cared to maintain the books of account nor deposited the tax or took steps for issuance of Cforms from the concerned department.
8. It is stated that in the month of April, 2014, when the suppliers of the defendant no.1 stopped the supplies for non issuance of Cforms, the defendants came to know that plaintiff had not took appropriate steps for issuance of Cforms by the concerned department and on enquiries, plaintiff failed to provide any satisfactory reply to the non performance and even failed to provide the books of account, income tax returns, sales tax returns and tax deposit receipts. The plaintiff further delayed the discussion on the matter on one pretext or the other. It is further stated that plaintiff in order to cover up its lapse in performance of professional duties, sent false and frivolous mails to the defendants which were duly replied by the defendants. It is further stated that defendants have submitted each and every documents as and when demanded by the plaintiff. The plaintiff is trying to cover his own misdeeds by leveling false and frivolous allegations upon the defendants.
9. It is stated that as per the understanding reached between the plaintiff and the defendants, the defendant was required to pay Rs.20,000/ annually for all the professional services entrusted to the plaintiff and the said professional fees CS No.: 513/17 Page 4 of 12 was paid to the plaintiff as and when the same become due in cash as demanded by the plaintiff and nothing due and outstanding against the defendant on account of professional fees of the plaintiff. It is denied that on account of the professional services rendered by the plaintiff firm for the F.Y. 201415 for sum of Rs.72,000/ is due and payable by the defendants as alleged.
10. Replication was filed by the plaintiff wherein he denied all the allegations and claims of the defendants and reiterated the averments made in the plaint.
11. On basis of the pleadings of the parties, the following issues were framed by the court on 03.03.2016 : "1. Whether plaintiff is entitled to the recovery of Rs.2,26,138.90/ along with interest @ 18% per annum as prayed? OPD
2. Whether plaintiff has approached the Court with unclean hand ? OPD
3. When the suit is not maintainable being bad for mis joinder and non joinder of the parties ? OPD
4. Whether the suit is barred by limitation ? OPD
5. Relief".
12. Thereafter, matter was listed for evidence. To lead evidence, plaintiff entered the witness box as PW1. He relied upon the certificate under Section 65B of India Evidence Act Ex.PW1/B for the documents as follows :
(i) Ex.PW1/2 IS THE Importer Exporter Code issued by DGFT.
(ii) Ex.PW1/3 (colly four pages) is the emails.
(iii) Ex.PW1/4 is form 2C.
CS No.: 513/17 Page 5 of 12(iv) Ex.PW1/5 (colly two pages) is the imprest Ledger Account.
(v) Ex.PW1/6 is the fee Ledger account.
(vi) Ex.PW1/7 (colly two pages) is the debit memo.
(vi) Ex.PW1/8 is bill dated 22.07.2014.
(vi) Ex.PW1/9 is bill dated 26.05.2015.
(vi) Ex.PW1/10 is bill dated 28.06.2012
(vi) Ex.PW1/11 is Authorization letter of the defendants.
He also relied upon the following documents :
(vi) Ex.PW1/12 is legal notice.
(vi) Ex.PW1/13 is four postal receipts.
(vi) Ex.PW1/14 is three AD cards.
13. The plaintiff's evidence was closed on 17.10.2019.
14. The defendants did not lead any evidence in his defence.
15. I have heard the final arguments heard on behalf of the plaintiff. The written arguments on behalf of plaintiff filed on 09.06.2022. The defendants has neither made oral submission nor made any written submission despite opportunity. The issue wise findings of the court are as below: CS No.: 513/17 Page 6 of 12 Issue no.4.
"Whether the suit is barred by limitation ? OPD"
16. Defendant has not led any evidence to show that suit is barred by limitation. Nonetheless, the present suit was filed by the plaintiff for recovery of the dues pertaining to the financial year 20112012, 201213, 201314 and 2014
15. The bill qua additional service tax on invoice no. 132 dated 25.03.2012 of a sum of Rs. 495/ was raised vide bill Ex.PW1/10 dated 28.06.2012. The debit memo Ex.PW1/7 dated 27.04.2015 shows payment of Rs. 11,660/ of the DVAT for the period October 2012 to December 2012. Ex.PW1/8 dated 22.07.2014 is the bill pertaining to the period from April 2013 to March 2014. Ex.PW1/9 dated 26.05.2015 is the bill pertaining to the period from April 2014 to March 2015. E mails exchanged between the parties which is exhibited as Ex.PW1/3. The response on behalf of the defendant of the email of the plaintiff was sent on 16.10.2015. The plaintiff sent a legal notice dated 29.10.2015 at the correct address of the defendant and the same exhibited as Ex. PW1/12 with postals receipts exhibited as Ex.PW1/13 and AD cards exhibited as Ex.PW1/14. However, defendant has not sent reply to the above sated notice. The present suit was filed on 06.07.2017. Thus, even without taking into consideration Ex.PW1/3 and Ex.PW1/12, the dues/claim of the plaintiff are within the period of limitation except the bill Ex.PW1/10 dated 28.06.2012 for a sum of Rs. 495/ only. Thus, I am satisfied that suit qua recovery of the bill Ex.PW1/10 dated 28.06.2012 is time barred. However, the suit qua recovery of the debit memo Ex.PW1/7, Bill Ex.PW1/8, and Bill Ex.PW1/9 are filed within the period of limitation. Thus, Issue no. 4 is decided in favour of the plaintiff qua recovery of the debit memo Ex.PW1/7, Bill Ex.PW1/8, and Bill Ex.PW1/9. However, It is decided against the plaintiff qua recovery of the bill Ex.PW1/10.
CS No.: 513/17 Page 7 of 12Issue no.2.
"Whether plaintiff has approached the Court with unclean hand ? OPD"
17. Defendant has not led his evidence to show that plaintiff approached the court with unclean hand. There is no material /evidence on record to show that plaintiff concealed material facts before the Court. So, issue no. 2 is decided against the defendant.
Issue no.3 "Whether suit is not maintainable being bad for misjoinder and non joinder of the parties ? OPD"
18. Defendant has not led any evidence to show that suit of the plaintiff is bad for misjoinder and nonjoinder of the parties. Plaintiff in his plaint contended that defendant no. 2 is the proprietor of defendant no. 1. Plaintiff in his crossexamination stated that defendant no. 2 was signing all the documents and as per Government record, he is the proprietor. The defendant has not put any suggestion to the plaintiff in his crossexamination that defendant no. 2 is not the proprietor of defendant no. 1. The plaintiff has filed Ex.PW1/2 which is importer exporter code. Perusal of the same shows that defendant no. 1 is a proprietorship concern and name of the directors is written as Bhed Singh and Brahm Singh. Thus, there is no material on record to show that defendant no. 2 is not the proprietor of defendant no. 1. So, issue no. 3 is decided against the defendant and in favour of the plaintiff.
CS No.: 513/17 Page 8 of 12Issue no.1 "Whether plaintiff is entitled to the recovery of Rs.2,26,138.90/ along with interest @ 18% per annum as prayed? OPD"
19. Plaintiff specifically stated that he is the partner in the partnership firm. He has duly proved the registration certificate of the partnership firm which is exhibited as Ex.PW1/1. Plaintiff in his crossexamination admitted that bill for the year 201112 and 201213 has already been paid. He specifically stated that the bill amount for the year 201314 was Rs.80,899/ vide bill no. 39 dt. 22.07.2014/Ex.PW1/8 and for the year 201415 the amount was Rs. 80899/ vide bill no. 39 dt. 26.05.2016/Ex.PW1/9. He denied the suggestion that entire professional fees for the financial year 201112, 201213 and 201314 was paid by the defendant in cash. He voluntarily stated that they never accept any cash payment from the client towards their professional fees. The clinching evidence against the defendant comes in the form of emails which were exchanged between the parties and the same is exhibited as Ex.PW1/3. The defendant has not asked any question regarding Ex.PW1/3 in the crossexamination of PW1. Thus, Ex.PW1/3 deem to be admitted by the defendant. In Ex.PW1/3, the defendant admitted payment of Rs. 11,660/. He also admitted that they will pay Rs.60,000/ plus 8400/ for the period of 201314 after receiving of the CForm of the year 201112. It is also clearly mentioned that the defendant refused to pay the payment of the period 201415 as ITR not submitted by the plaintiff and CForm not received by the defendant.
20. Thus, it is apparent that amount of Rs.11,660/ as mentioned in debit memo/Ex.PW1/7 was required to be paid by the defendant to the plaintiff.
CS No.: 513/17 Page 9 of 1221. As far as recovery of Ex.PW1/8 and the Ex.PW1/9 are concerned the same is corroborated from the ledger account of the defendant firm maintained by the plaintiff in the course of his business. The same is exhibited as Ex.PW1/6. The entries in the said ledger account dated 22.07.2014 and 26.05.2015 pertains to the Ex.PW1/8 and Ex.PW1/9.
22. As far as the defence / contention of the defendant regarding non payment of the dues as plaintiff failed to file the ITR and provide the CForm is concerned, the Ex.PW1/3 clearly shows that plaintiff asked for the requisite documents for filing of the ITR, however, the requisite documents not provided by the defendant.
23. Legal notice/Ex.PW1/12 sent at the correct address of the defendants, but the same was not replied, so, contents therein deemed to be admitted by the defendant. Thus, in view of Ex.PW1/3 and Ex.PW1/12, I am satisfied that ITR of the financial year 201415 could not be filed by the plaintiff as the requisite documents not supplied by the defendant. The said documents were asked to be supplied by the plaintiff through emails. I am also satisfied that plaintiff was not supposed to get the CForm issued to the defendant. The job of the plaintiff was to help in the documentation and preparation of the application for issuance of C Form.
24. Thus, in view of the above discussion, I am satisfied that ITR for the financial year 201415 could not be filed due to the lapse / failure of the defendant to provide the requisite documents and plaintiff has no fault in this. Similarly, plaintiff proved that he is not liable for nonissuance of CForm to the defendant.
CS No.: 513/17 Page 10 of 1225. Thus, I am satisfied that plaintiff is entitled for the recovery for a sum of Rs.11,660/ (Debit note no.9 dated 27.04.2015) + Rs. 80899/ (bill no.39 dated 22.07.2014 for F.Y. 201314) + Rs. 80899/ (bill no.39 dated 26.05.2015 for F.Y. 201415) total in Rs.1,73,458/.
26. As far as the interest is concerned, notice Ex.PW1/12 was sent to the defendant at his correct address on 30.10.2015. The postal receipts Ex.PW1/13 and AD cards Ex.PW1/14 proves deemed service of the legal notice on the defendant. Defendant has not sent reply to the said legal notice. However, in the said legal notice, plaintiff has not demanded any interest on the dues. Nonetheless, plaintiff is entitled for interest on the dues from the date of filing of the suit. The suit filed on 06.07.2017. So, plaintiff is entitled for recovery of Rs.1,73,458/. Plaintiff is also entitled for interest @ 9% per annum since 06.07.2017 till the realization of the amount. So, issue no.1 is decided in favour of the plaintiff and against the defendants.
Issue no.5 "Relief".
27. In view of findings of this court, the present suit is decreed in favour of the plaintiff and against the defendants. A decree of recovery of Rs.1,73,458/ (One Lakhs Seventy Three Thousand Four Hundred and Fifty Eight only), is passed in favour of the plaintiff and against the defendants. Further, the defendants are also directed to pay to the plaintiff, interest at the rate of 9% per annum since 06.07.2017 till the date of realization of the decreetal amount (Pendentelite and future interest). Costs of the suit is also awarded in favour of the plaintiff.
CS No.: 513/17 Page 11 of 1228. Decreesheet be prepared accordingly.
29. File be consigned to record room after due compliance.
Digitally
signed by
MANOJ
Announced in the open Court MANOJ KUMAR
KUMAR Date:
on this 6th of July, 2022 (MANOJ KUMAR)
2022.07.06
17:21:56
+0530
SCJcumRC (East)/KKD
CS No.: 513/17 Page 12 of 12