Delhi District Court
Smt. Sunita Jain vs M/S Adigear International on 11 September, 2019
In the Court of Sh. Narinder Kumar,
Additional District Judge04 (West), Tis Hazari Courts, Delhi.
Civ DJ No. 608153/16
Smt. Sunita Jain
w/o Late Sh. Bharat Bhushan Jain
Proprietor of M/s Bharat Cottons
C/o 316, Kucha Ghanshi Ram
Chandni Chowk,
Delhi110006. .... Plaintiff
Versus
M/s Adigear International
(A Partnership firm)
Through its partners
Shri Prem Khanna
Shri Sandeep Khanna
Shri Sanjay Khanna
Shri Sameer Khanna
Head office at
A40, Mayapuri Industrial Area
PhaseI New Delhi
Also at
D45 Naraina Vihar
New Delhi110028
Also at
B58, Second Floor
Mayapuri Industrial Area
Phase I Behind Police Station
New Delhi110064
Also at
Plot No. 150151, Sector4
IMT Manesar, Gurgaon
Haryana1220051. ...... Defendant
Civ. DJ608153/2016 Page 1 of 12
Date of institution : 23.10.2015
Date of Judgment : 11.09.2019
JUDGMENT
Plaintiff instituted this suit against the defendant on 23.10.2015 for decree of recovery of Rs. 16,95,769/ with interest @ 24 % per annum.
FIRST THE FACTS Case of the plaintiff is that she is engaged in the business of cotton fabrics and is proprietor of M/s Bharat Cotton.
Defendant firm approached her for purchase of cotton fabrics by placing orders, whereupon cotton fabrics were supplied to the defendant firm as per invoices, the details of which have been given to para no. 2 of the plaint.
Case of the plaintiff is that defendant paid a sum of Rs. 5 lakhs by way of part payment against the goods supplied by her. At the time goods were so supplied, the defendant did not raise any dispute regarding their quantity or quality.
Further, it is the case of the plaintiff that defendant issued two cheques to the plaintiff in discharge of said liability, but when both these cheques were presented for encashment they were received back dishonoured.
As per case of plaintiff, a sum of Rs. 16,95,769/ is due but despite reminders and telephonic conversations and Legal notice Civ. DJ608153/2016 Page 2 of 12 dated 10.08.2014, defendant has failed to pay this amount.
Hence, this suit.
VERSION OF DEFENDANT
2. Defendant has raised certain preliminary objections interalia on the ground of non joinder of parties; plaintiff having not come to the court with clean hands; the suit having not been properly valued and proper court fees having not been filed.
On merits, defendant has denied that Samir Khanna and Prem Khanna are the partners of the defendant firm and that partners of the defendant firm ever approached the plaintiff for cotton fabrics.
Further, it is the case of the defendant that due to settlement between the parties, after issuance of debit notes by the defendant, only a sum of Rs.60,178/ is due from the defendant firm to the plaintiff and defendant firm is ready and willing to pay the same.
In this way, defendant has denied the liability to pay Rs. 16,95,769/ to defendant firm. Defendant firm has also denied the claim of the plaintiff that reminders were issued by the plaintiff for demand of this amount. It has also denied to have received any demand notice from the plaintiff.
Further more, it is pleaded by the defendant that as per legal notice, plaintiff claimed a sum of Rs. 26,27,178/ but the suit has been filed for recovery of Rs 16,95,769/.
Another plea put forth by the defendant is that the suit is barred by limitation as the first invoice came to be issued on 19.09.2012. Accordingly, defendant has prayed for dismissal of the suit.
Civ. DJ608153/2016 Page 3 of 12REPLICATION
3. Plaintiff has filed replication controverting plea put forth by the plaintiff and reiterating the version set out in the plaint.
POINTS FOR DETERMINATION
4. From the pleading of the parties, following issues were framed:
1. Whether the material supplied by the plaintiff to the defendant was of poor quality and returned to the plaintiff vide debit notes? OPD. If so, to what effect? OPD
2. Whether the plaint is liable to be rejected on the ground of non joinder/mis joinder of the parties? OPD.
3. Whether the plaintiff is entitled for recovery of an amount of Rs. 16,95,769/ from the defendant as prayed for? OPD.
4. Whether the plaintiff is entitled to pre suit interest from 01.03.2014 till the date of filing of the present suit, if so, at what rate? OPP.
5. Whether the plaintiff is entitled to pendent lite and future interest, if so, at what rate? OPP.
6. Relief.
EVIDENCE
5. In order to prove her case, plaintiff has examined Sh. Prateek Jain, her son and power of attorney holder as PW1.PW1 has Civ. DJ608153/2016 Page 4 of 12 tendered his affidavit by way of evidence EX PW 1/A and documents.
He also examined PW2 Ct. Virender from PS Prasant Vihar and PW3 Sh. Dinesh Kumar Gupta.
On the other hand, defendant has examined Sh. Sanjay Khanna, its partner as DW1.
DW1 has tendered his affidavit by way of evidence Ex.DW1/1 and also tendered certain documents.
6 Arguments heard. File perused.
Issue No. 27. This issue appears to have been framed in view of preliminary objection raised by the defendant that plaint is liable to be rejected on the ground of non joinder of parties and the plea on merits is that Sameer Khan and Prem Khanna are not the partners of the defendant firm.
In the replication, plaintiff has denied that no person by name of Prem Khanna is partner of the defendant firm.
On this issue, neither the defendant nor the plaintiff has led any evidence. List of the partners of the firm should have been placed and proved on record but the same has not been filed.
Even otherwise, it is pertinent to mention that in his affidavit Ex DW 1/1 by way of evidence Sh. Sanjay Khanna, partner of the Civ. DJ608153/2016 Page 5 of 12 defendant firm has not testified on this issue. It has come in his cross examination that he and Sandeep Khanna are partners of defendant firm and that their father Sh. Pran Nath retired from the firm in the year 2013. However, no such document has been placed on record by the defendant.
For want of cogent and convincing evidence on behalf of defendant on this issue, the same is decided against the defendant.
Issue No. 1, 3, 4 & 58. All these issues are interconnected and as such are taken up together.
In order to prove her case, plaintiff has examined her son and attorney Sh. Prateek Jain (PW1).
PW1 has testified in his affidavit Ex PW 1/A that he is attorney holder of the plaintiff, proprietor of M/s Bharat Cotton. Further, according to him, he is employed with this proprietorship and as such conversant with all the facts of the case. Ex PW 1/1 Special Power of Attorney, executed by Smt. Sunita Jain in his favour.
It is also in his affidavit that he used to deal with the defendant and interacted with them regarding transactions in question and he has personal knowledge about all the transactions with the defendants.
Civ. DJ608153/2016 Page 6 of 12Further, it is testified about the supply of cotton fabrics by the plaintiff to the defendant on the basis of orders placed by them vide EXPW1/2 to ExPW1/12. He has also proved original invoices ExPW1/13 to ExPW1/27. In the course of arguments, no submission has been put forth on behalf of the defendant as to why these documents are not admissible in evidence.
It is also in his testimony that by way of part payment, defendant paid Rs. 5 lakhs against goods supplied. Defendant also issued two cheques i.e. cheque no 065639 dated 26.10.2012 of Rs.2 lakhs and cheque no. 853782 dated 28.2.2014 of Rs. 50,000/ to discharge the part of the liability and when these cheques presented for encashment were received back as dishonoured. Cheques and cheques return memos are EX PW 1/28 to Ex PW 1/30.
PW1 has also proved statement of account Ex PW 1/31 and legal notice Ex PW 1/32.
Counsel for defendant has submitted that plaintiff herself having not been stepped into witness box, no reliance can be placed on the testimony of PW1, her power of attorney.
On the other hand, counsel for plaintiff has referred to judgment titled as Satshiv (Bharat) & Ors vs M/s Indrus Business Development through its partners 2015 X AD (Delhi) 348 RSA 328/2015 decided on 04.09.2015, and rightly submitted that PW1 remained employed with the plaintiff and was acquainted with all the facts and as such there is no merit in the contention of counsel for defendant to ignore the statement of PW1.
Civ. DJ608153/2016 Page 7 of 129. Another contention raised by defendant is that the materials supplied by plaintiff to the defendant were of poor quality and as such same were returned to the plaintiff.
On going through the written statement filed by the defendant court finds that in para no. 13 of the preliminary objection defendant alleged that the plaintiff had concealed the fact of rejection and return of inferior quality materials and consequent issuance of debit notes by the defendant.
It was for the defendant to specifically plead as to which of the material supplied by the plaintiff was of inferior quality and was accordingly returned to the plaintiff.
In the written statement, no specific plea has been put forth giving details of the inferior quality materials or of the debit notes.
PW1, while under cross examination, was given a suggestion that defendant had returned the goods supplied by the plaintiff. PW1 denied this suggestion.
He also denied the suggestion that debit notes were issued by the defendant for the return of the goods or that the goods were returned to the employee namely Kapil.
PW1 denied this suggestion and voluntarily stated that no employee in the name of Kapil was employee of the plaintiff.
On the other hand, DW1 Sanjay Khanna, partner of the defendant firm has testified that the goods supplied by the plaintiff to the defendant vide Ex PW 1/13 to Ex PW 1/27 were found to be of poor quality and as such returned to the plaintiff.
Civ. DJ608153/2016 Page 8 of 12As noticed above, in the written statement no such plea was taken by the defendant specifically.
DW1 also testified about challan and debit notes said to have been sent to the plaintiff in this regard. All these documents shown as exhibits in the affidavits were deexhibited for want of original.
Therefore, in the absence of any cogent and convincing evidence, it can not be said that any material supplied by the plaintiff to the defendant vide invoices EX. PW 1/13 to EX PW 1/27 were of inferior quality and were accordingly returned to the plaintiff.
10. Another argument advanced by the counsel for defendant is that balance confirmation/settlement Ex DW 1/P1 would reveal that settlement was arrived at and the plaintiff acknowledged vide this document that only a sum of Rs. 60,178/ was due from the defendant to the plaintiff on 30.06.2014.
Counsel for plaintiff submitted that no such acknowledgment came to be executed by plaintiff and that the defendant has based this plea on a false and forged document.
Record reveals that as per case of the defendant this acknowledgment is in the hand writing and signature of Sh. Prateek Jain authorized signatory of the plaintiff.
As noticed above, PW1 Prateek Jain is employee as well as SPA holder of plaintiff. PW1 stepped into witness box on 18.1.2018. During his cross examination PW1 was never confronted with this document EX DW 1/P1. There is no explanation as to why this document was not shown to PW1 when he was under cross Civ. DJ608153/2016 Page 9 of 12 examination so that he could explain about the same.
EX DW1/P1 came to be executed on 31.05.2019 when DW1 Sanjay Khanna, partner of the defendant, tendered the same in evidence and that too in cross examination. Production of this document at this stage was objected by counsel for plaintiff.
In the list of documents, filed by the defendant on 28.10.2016 this document EXDW1/P1 does not find mention. Defendant has not placed on record any material to suggest that this letter dated 10.07.2014 (Ex DW 1/P1) was ever delivered to him by the plaintiff.
Late production of this document i.e. on 29.5.2019 and its non production earlier for being put to PW1 during his cross examination to seek his explanation regarding this document, creates doubt if this document was in existence as on 10.07.2014. Therefore, this document does not come to the help of the defendant.
Consequently, court finds that defendant has failed to prove that the plaintiff acknowledged on 30.06.2014 that only a sum of Rs.60,178/ was due to the plaintiff by the defendant.
11. Another argument raised by counsel for defendant is that the suit is barred by limitation, so far as invoices from serial no. 1 to 9 for the period upto 25.10.2012 are concerned.
In support of this contention, counsel for defendant has referred to decisions in BPL Limited versus Hindustan Traders Co. 2009 (109) DRJ 116 and Harjit Singh versus M/s Bharat Hotels Ltd and Anr, RFA no. 666/2017 decided on 31.07.2017.
Civ. DJ608153/2016 Page 10 of 12As noticed above, plaintiff has proved by leading cogent and convincing evidence that she supplied to the defendant cotton fabrics from time to time vide invoices starting from invoice no. 1037 dated 19.09.2012 to invoice no. 1134 dated 19.11.2012.
Statement of account EX PW 1/31 which pertains to the account of defendant shows a balance of Rs. 16,95,769/ due from defendant to the plaintiff.
Defendant issued two cheques EX PW 1/28 and EX PW 1/30 dated 26.10.2012 and 28.02.2014 respectively. At the time of admission/denial of documents, defendant admitted to have isued these cheques to the plaintiff but pleaded that these were issued as security cheques. However, defendant has not led any evidence to suggest that these cheques were issued by way of security cheques. Both these cheques when presented for encashment, were received back as dishonoured. The first mentioned chque was received back as dishonoured with remarks 'stopped payment' whereas second cheque was received back with remarks as 'insufficient funds'. The present suit came to be instituted on 23.10.2015.
In the given facts and circumstances, two decisions referred by the counsel for defendant do not come to the aid of the defendant so as to say that suit is barred by limitation as regard first mentioned nine invoices ie. upto 25.10.2012.
As a result, plaintiff is held entitled to recover a sum of Rs. 16,95,769/ by way of principal amount.
Civ. DJ608153/2016 Page 11 of 12Rate of interest
12. No rate of interest finds mentioned in the invoices. Keeping in view the commercial nature of the transaction, plaintiff is held entitled interest @ 12% per annum from 01.03.2014 till its realization.
Accordingly, issue no.1 is decided against the defendant and in favour of the plaintiff and issue nos. 3, 4 & 5 are decided in favour of the plaintiff and against the defendant.
RELIEF
13. As a result of findings under above issues, suit of the plaintiff is decreed with costs in her favour and against the defendant firm for Rs.16,95,769/ with interest @ 12 % p.a. from 01.03.2014 till its realization.
Record reveals that plaintiff has not paid any court fees on relief of interest w.e.f. 01.03.2014 till institution of suit, therefore, decree sheet be drawn only on payment of court fees in respect of interest.
Digitally signedFile be consigned to Record Room. NARINDER by NARINDER KUMAR KUMAR Date: 2019.09.13 16:41:40 +0530 Announced in the open (Narinder Kumar)
Court on 11th September, 2019. Additional District Judge04 (West), Delhi.
Civ. DJ608153/2016 Page 12 of 12