Delhi District Court
Vinod Sharma V Amar Forwarding Agency Cs ... vs Unknown on 19 November, 2019
Vinod Sharma v Amar Forwarding Agency CS 6027/2018
IN THE COURT OF SH.MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE (CENTRAL):
TIS HAZARI COURTS: DELHI
CIVIL SUIT No : 6027/2018
SH.VINOD SHARMA
sole proprietor M/s Hira Print Craft
B-1603, Shastri Nagar Delhi 110052 .....Plaintif
VERSUS
M/s AMAR FORWARDING AGENCY
through its proprietor Sh.Amar Chand
Shilaroo, Tehsil Theog
District Shimla (HP) ...DEFENDANT
SUIT FOR RECOVERY OF Rs.5,00,000/-
(RUPEES FIVE LACS ONLY)
Date of Institution of the suit :05.9.2018
Date on which judgment was reserved :19.11.2019
Date of decision :19.11.2019
JUDGMENT
1. This simple money recovery suit was initially filed under the provisions of Order XXXVII of the Code of Civil Procedure, 1908, which was treated as ordinary suit by virtue of statement of counsel for Result:Suit decreed Page 1 of 8 Vinod Sharma v Amar Forwarding Agency CS 6027/2018 the plaintiff dated 05.9.2018.
2. As per the plaint, the plaintiff is the sole proprietor of M/s Hira Print Craft dealing in manufacturing of corrugated boxes and used to supply the same to its customers all over India after receiving orders. He had business dealing with the defendant for the last three years (from the date of the suit) under which the defendant used to place orders for supply of corrugated boxes from time to time on credit basis. The goods were booked from Delhi and were sent to the defendant's office/factory at Shimla (Himachal Pradesh) from the factory of the plaintiff at Shastri Nagar, Delhi.
3. As per the plaintiff, out of the total bill amount of Rs.5,50,515/, the defendant had paid Rs.50,000/ as advance in May 2016 and in discharge of his remaining liability, he issued three cheques (in the total sum of Rs.5,00,000/) to the plaintiff in his personal capacity which are described as under :
Srl. Name of the Bank Cheque No. and Amount (Rs) No. Date of cheque 1 HDFC Bank Ltd 000202 dated 4,00,000/ Shilaru Branch Distt Shimla 20.11.2016 Result:Suit decreed Page 2 of 8 Vinod Sharma v Amar Forwarding Agency CS 6027/2018 2 HDFC Bank Ltd 000203 dated 50,000/ Shilaru Branch Distt Shimla 25.5.2016 3 HDFC Bank Ltd 000204 dated 50,000/ Shilaru Branch Distt Shimla 01.6.2016
4. Goods were supplied in the established manner in good faith and when the first cheque of Rs.4,00,000/ was presented by the plaintiff with his banker i.e. State Bank of India it returned unpaid with the remarks "funds insufficient" on 05.12.2016. Accordingly, a legal notice dated 17.12.2016 under the provisions of Section 138 of the Negotiable Instruments Act was sent to the defendant on 27.12.2016 but its receipt was refused. The remaining two cheques were not present for encashment. Hence, this suit for recovery of Rs.5,00,000/ with interest at the rate of 18 per cent per annum.
5. Summons for settlement of issues were ordered to be issued to the defendant but the service was reufsed. Deemed service was observed by this Court vide order dated 13.5.2019 and due time was granted to the defendant for appearance and filing of written statement but he failed either to appear or to file written statement. Accordingly, the defendant was proceeded exparte vide order dated 26.8.2019.Result:Suit decreed Page 3 of 8
Vinod Sharma v Amar Forwarding Agency CS 6027/2018
6. In the exparte evidence, the plaintiff has examined himself as sole proprietor of M/s Hira Print Craft and filed his affidavit of evidence Ex.PW1/1 relying upon the following documents :
(a) Provisional Factory Licence and Sales Tax Receipt as Ex.PW1/A (Collectively) (OSR);
(b) Original bill along with Transporter GR as Ex.PW1/B (collectively);
(c) Cheques dated 20.11.2016, 25/5/2016 and 01.6.2016 as Ex.PW1/C, Ex.PW1/E abnd Ex.PW1/E;
(d) Cheque returning memo as Ex.PW1/F
(e) Legal notice dated 17.12.2016 as Ex.PW1/G along with
(f) postal receipt as Ex.PW1/H; and
(g) returned envelope with the remarks "refused" as Ex.PW1/I. No further/other witness was examined on behalf of the plaintiff
7. I have heard Sh.Pankaj Jain, Advocate for the plaintiff and have gone through the record.
Result:Suit decreed Page 4 of 8Vinod Sharma v Amar Forwarding Agency CS 6027/2018
8. Onus is upon the plaintiff to prove that the goods were booked and duly supplied against the amount in suit. In order to prove that the plaintiff is the sole proprietor of M/s Hira Print Crafts, he has produced Ex.PW1A (OSR) which is allotment of TIN number in the name of his firm by the Sales Tax Department, GNCTD. Ex.PW1/B (collectively) is the Retail Invoice/Cash Memo/Bill No.155 dated 25.8.2016 for Rs.2,68,275/ which was issued in the name of "Aman Shyam Ji" Theog, Distt Shimla (HP). Ex.PW1/B (collectively) is the Retail Invoice/Cash Memo/Bill No.156 dated 27.8.2016 for Rs.2,82,240/ which was issued in the name of "Aman Shyam Ji"
Theog, Distt Shimla (HP). In the said bills, order numbers are not provided but the bills are dated 25.8.2016 and 27.8.2016. The goods as per the first Retail Invoice were delivered as per Consignment Note on 25.8.2016 through "Anand Freight Carrier" while the goods vide second Retail Invoice were also supplied through the same Freight Carrier on 27.8.2016.
9. The three cheques mentioned in the plaint are Ex.PW 1/C, Ex.PW1/D and Ex.PW1/E relevant of which is Ex.PW1/C. It is issued by one Amar Chand in the personal name of the plaintiff. It dishonoured on presentation as per Debit Advice memo Ex.PW1/F Result:Suit decreed Page 5 of 8 Vinod Sharma v Amar Forwarding Agency CS 6027/2018 on 05.12.2016.
10. The relation between the consignee, name of which is mentioned in the bills and the person who issued this cheque has not been established in the plaint or in the affidavit of evidence Ex.PW 1/1. However, contents of legal notice Ex.PW1/G clarifies that Sh.Amar Chand is the proprietor of M/s Amar Forwarding Agency. The facts in the plaint are found mentioned in the legal notice also. Ex.PW1/I is the Registered AD envelope containing the legal notice on which remarks of postman "refused" are clearly observed. Accordingly, the plaintiff has established nexus between M/s Hira Print Craft and M/s Amar Forwarding Agency.
11. It is established that as per bills pertaining to corrugated boxes, the same were supplied through Anand Freight Carrier from Shastri Nagar factory of the plaintiff to Theog office of the defendant. It is also established that this Court has requisite territorial jurisdiction to entertain the suit. The suit is within the prescribed period of limitation. It is also duly proved by the plaintiff that part consideration amount of Rs.4,00,000/ towards outstanding of Rs.5,00,000/ could not be cleared on account of dishonour of cheque Ex.PW1/C. Result:Suit decreed Page 6 of 8 Vinod Sharma v Amar Forwarding Agency CS 6027/2018
12. As the aforesaid facts are duly established, the plaintiff is held entitled to the claim which he has made in the plaint.
13. Testimony of PW1 has remained unchallenged, uncontroverted and is beyond any kind of reasonable doubt, the factum of refusal of legal notice as well as of the summons issued by this Court and the fact that the despite opportunity, the defendant failed to appear in the Court also establishes that the plaintiff's documents particularly the legal notice Ex.PW1/G is unrebutted and would amount to an admitted document in view of refusal to accept the same.
6. The plaintiff has also prayed for interest at the rate of 18 per cent per annum from the date of institution of the suit. In the legal notice Ex.PW1/G, the plaintiff has not demanded any interest. As per terms of the Invoices Ex.PW1/B (collectively), no provision for levy of any interest on late payment is made. Accordingly, there is no agreed rate of interest. The transaction being commercial in nature, in my considered view, grant of interest at the rate of 6 per cent per annum to the plaintiff on the principal amount will suffice.Result:Suit decreed Page 7 of 8
Vinod Sharma v Amar Forwarding Agency CS 6027/2018 RESULT
7. In view of the discussion made herein above, the suit is decreed in favour of the plaintiff and against the defendant in the sum of Rs.5,00,000/ along with interest at the rate of 6 per cent per annum from the date of suit i.e. 05.9.2018 till realization, besides costs of the suit.
Decree sheet be drawn up accordingly in the above terms. File be consigned to the record room.
Announced in the open (MANISH YADUVANSHI)
Court on 19.11.2019 ADDL. DISTRICT JUDGE-11
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
Result:Suit decreed Page 8 of 8