Delhi District Court
M/S Soniver Bags And Luggage And vs M/S Pioneer Proacademy Pvt Ltd on 3 June, 2024
DLND010162002017
IN THE COURT OF DISTRICT JUDGE - 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 1278/2017
M/s Soniver Bags and Luggage
(through the Partner Bharat Soni)
291/A-1/FF, Hauz Rani Market,
Malviya Nagar,
New Delhi - 110017
......... Plaintiff
Versus
M/s Pioneer Pro Academy Pvt. Ltd.
(Through the Managing Director)
67 D F/F, Laxmi Market, Near Canara Bank,
Munirka, New Delhi - 110067
Also at :
D-211, Basant Plaza, Near BOB,
Munirka, New Delhi - 110057
Also at :
Regd Office : A-2, Milap Nagar,
Himalay Sagar, Uttam Nagar,
New Delhi - 110059
2. Mr. Hemant Kumar Singh
(Managing Director & Authorized Signatory of the Co.)
A-2, Milap Nagar,
Himalay Sagar, Uttam Nagar,
New Delhi - 110059
CS No. 1278/2017 Pages 1 of 10
M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors.
Also at :
Flat no. 258, Pocket-7,
Sector 12, Dwarka, Delhi - 110075
3. Ms. Pooja Singh (Director)
A-2, Milap Nagar,
Himalay Sagar, Uttam Nagar,
New Delhi - 110059
Also at :
Flat no. 258, Pocket-7,
Sector 12, Dwarka, Delhi - 110075
4. Ms. Pooja Singh (Director)
A-2, Milap Nagar, Deleted from array
Himalay Sagar, Uttam Nagar, of parties vide order
New Delhi - 110059 dated 22.03.2023
........ Defendants
Suit presented On : 12.12.2017
Arguments Concluded On : 01.06.2024
Judgment Pronounced On : 03.06.2024
EX-PARTE JUDGMENT
1.This is a suit for recovery of Rs.26,71,100/- alongwith pre- suit interest of Rs. 6,41,064/-and pendente lite and future interest @ 24% p.a. filed by the plaintiff (a registered partnership concern) against the defendant for supply of student bags. It is stated that on 19.07.2016, the defendant (which is a coaching academy) finalised for procurement of 15000 student bags. According to the plaint, the following quantity of bags were supplied :
CS No. 1278/2017 Pages 2 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors. Sl Quantity Invoice no. Date Amount VAT @ 5% no.
1. 1000 000026 06.07.2016 2,44,000/- 12,200/-
2. 2000 000034 16.08.2016 5,40,000/- 27,000/-
3. 1000 000043 22.08.2016 2,70,000/- 13,500/-
4. 3000 000077 18.11.2016 7,50,000/- 37,500/-
5. 3912 000082 23.11.2016 9,78,000/- 48900/-
2. Thus, according to the plaintiff for 9912 bags supplied, Rs.29,21,100/- became due for which only Rs.2,50,000/- has been paid and Rs.26,71,000/- remains unpaid. It is further averred that despite repeated reminders through phone calls, emails, whatsapp messages, text messages and visits to the offices of the defendant at various places, cheque bearing no. 000000000276 for a sum of Rs. 1,50,000/- and cheque bearing no.000000000357 for sum of Rs. 2,00,000/- were issued which were dishonoured. Also, another cheque bearing no.000000000483 for sum of Rs. 3,00,000/- also, was dishonoured for insufficiency of funds. Even thereafter, the plaintiff pursued the matter with the defendant but to no avail and hence the present suit has been filed.
3. Written statement on behalf of the defendants no.1 to 3 came to be filed on 15.12.2018 averring that the suit was for exerting pressure upon the defendants without any cause of action. It was alleged that the plaintiff's partnership firm was registered on 07.11.2017 which is prior to transactions between the parties in the year 2016 and so, the suit was bad. It was CS No. 1278/2017 Pages 3 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors. denied that the defendant sought 15000 bags from the plaintiff and it is merely admitted that only 4000 bags were purchased and so @ Rs.250/- per bag, the defendants are liable to pay Rs.10,00,000/- to the plaintiff which purportedly was paid as under :
Sl no. Amount in Rs. Mode of transaction Date
1. 50,000/- NEFT 02.08.2016
2. 1,50,000/- Cash on 14.11.2016 in lieu of settlement for cheque no.
000000000275 for Rs.1.5 L which got bounced on 11.12.2016
3. 2,00,0000/- Cash on 20.01.2016 in lieu of settlement for cheque no.
000000000357 for Rs.2.0 L which got bounced on 17.01.2017
4. 1,00,000/- Cash 01.02.2017
5. 1,00,000/- Cash 18.02.2017
6. 3,00,000/- Cheque no. 000000000483 which got bounced and settled later in Saket Court
7. 1,00,000/- Account transfer 07.03.2017
4. It was further averred that since the defendants were suffering losses, some more time was required for clearance of dues against cheque no. 000000000483 but the present suit was filed. However, in the criminal complaint under N.I. Act, the matter was settled and payment was made. It was alleged that the challan and invoices were fabricated. The suit was stated to be bad for misjoinder of parties and cause of action, undervalued, CS No. 1278/2017 Pages 4 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors. barred by limitation and not filed in accordance with CPC.
5. Defendant no.4 also filed a written statement stating that he was a non-performing Director and in view of Tristar Consultant Vs. Vcustomer Services India Pvt. Ltd. & Anr 1, he was not personally liable for the recovery sought.
5.1 On merits, he has denied the case of the plaintiff stating that there were no negotiations which took place with defendant no.4.
6. Replications to aforesaid written statements are reiteration of the cause of action set out in the plaint.
7. During the pendency of the matter, defendants no. 1 to 3 were proceeded ex-parte vide order dated 22.03.2023.
8. Defendant no.4 was deleted from the array of parties on an application under Order I Rule 10 of CPC allowed vide order dated 22.03.2023.
9. Thereafter, plaintiff examined Bharat Soni, partner of the plaintiff, tendered his affidavit Ex. PW1/A alongwith the following documents :
Sl no. Documents Exhibited
as
1 ILR (2007) 1 Delhi 1953
CS No. 1278/2017 Pages 5 of 10
M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors.
1. Copy of Registration certificate of the Ex. PW1/1 Partnership firm SONIVER Bags & (colly) Luggage (Form A & B) (OSR)
2. List of Directors from the record of Mark Registrar of Companies PW1/2
3. Images of Pioneer Academy showing Mark A Best Coaching Institute
4. Office copy of legal notice dated Ex. PW1/3 03.06.2017
5. Postal receipts dated 09.06.2017 Ex. PW1/4
6. Whatsapp conversation between Mark Partner of plaintiff firm and defendant PW1/5 (colly)
7. Addresses of branches of the coaching Mark B institute of defendant company
8. Print out of email from the defendant Mark dated 19.07.2016 for placing order for PW1/6 procuring 15000/- student bags
9. Print out of confirmation email by the Mark defendant dated 19.07.2016 for PW1/7 procuring 15000 student bags
10. Print out of emails sent by the plaintiff Mark to the defendant with requests and PW1/8 reminders for outstanding payment (colly)
11. Certificate under Section 65B of Mark Evidence Act PW1/9
12. Copy of invoice no. 000026 dated Ex. PW1/10 06.07.2016 (OSR)
13. Copy of challan no. CH-000019 dated Ex. PW1/11 21.06.2016 (OSR)
14. Copy of challan no. CH-000022 dated Ex. PW1/12 05.07.2016 (OSR)
15. Copy of invoice no.000034 dated Ex. PW1/13 16.08.2016 (OSR) CS No. 1278/2017 Pages 6 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors.
16. Copy of challan no. CH000025 dated Ex. PW1/14 01.08.2016 (Colly) (OSR) Copy of challan no. CH-000026 dated 03.08.2016 Copy of challan no. CH-000027 dated 05.08.2016 Copy of challan no. CH-000028 dated 09.08.2016 Copy of challan no. CH-000029 dated 12.08.2016
17. Copy of invoice no. 000043 dated Ex. PW1/15 22.08.2016 (OSR)
18. Copy of challan no. CH-000034 dated Ex. PW1/16 16.08.2016 (colly) Copy of challan no. CH-000035 dated (OSR) 17.08.2016
19. Copy of invoice no. 000077 dated Ex.PW1/17 18.11.2016 (OSR)
20. Copy of Bills raised by the plaintiff Ex. PW1/18 dated 12.10.2016 of quantity 1000 (OSR) bags
21. Copy of Bills raised by the plaintiff Ex. PW1/19 dated 12.10.2016 of quantity of 650 (OSR) bags
22. Copy of Bills raised by the plaintiff Ex. PW1/20 dated 10.10.2016 of 1350 bags (OSR)
23. Copy of Bills raised by the plaintiff Ex. PW1/21 dated 12.10.2016 (OSR)
24. Copy of invoice no. 000082 dated Ex. PW1/22 23.11.2016 (OSR)
25. Copy of challan no. CH-000038 dated Ex. PW1/23 22.11.2016 (colly) CS No. 1278/2017 Pages 7 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors.
(OSR) Copy of challan no. CH-000039 dated 22.11.2016 Copy of challan nos. CH-000040, CH-
000041, CH-000042, CH-000043
26. Copy of cash receipt dated 30.01.2017 Mark issued by defendant PW1/24
27. Copy of cheque no. 000483 dated Mark C 02.03.2017 drawn on ICICI Bank
28. Copy of return memo dated Mark D 04.03.2017
29. Copy of bank account statement dated Mark E 01.04.2016 to 31.03.2017
30. Copy of return memo dated Mark F 01.06.2017 of Yes bank alongwith (colly) copy of cheque no. 000483 3 pages
31. Copy of legal notice dated 19.07.2017 Mark G regarding demand in lieu of dishonoured cheque no. 000483
32. Copy of postal receipts Mark H (5 pages)
33. Certificate under Section 65B Indian Ex. PW1/25 Evidence Act
10. Even though, defendants no.1 to 3 were proceeded ex- parte, the plaintiff is still required to satisfy this Court qua the preliminary objection of defendants no. 1 to 3 that bar u/s 69 of The Indian Partnership Act, 1882 (herein after referred to as 'Partnership Act') applies to the present suit as the date of registration of the plaintiff is 07.11.2017, after transaction between the parties. In response thereof, the plaintiff has stated in CS No. 1278/2017 Pages 8 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors. its replication that "it is a matter of record that the plaintiff's partnership firm was registered with office in Delhi on 07 Nov 2017, while the whole alleged transaction of supply of bags were completed in year 2016." Be that as it may, prior to the institution of the suit, the partnership was registered as evidenced by Form A and Form B, issued by Registrar of Firm, Government of NCT of Delhi [Ex.PW1/1 (colly)] and as defendants no. 1 to 3 did not appear to show that merely because the transaction was prior to registration of the plaintiff firm, it could not seek recovery through the Court, the Court is of the reasoned opinion that the objection is without any merit.
11. The testimony of PW1 Sh. Bharat Soni has remained un- rebutted and unchallenged. Part liability has also been accepted by defendants no. no.1 to 3 who did not lead any evidence to show that even that was paid. There are no reasons to disbelieve the plaintiff. Therefore, the suit is decreed for sum of Rs. 26,71,000/- qua defendant no.1.
12. However, as defendants no. 2 and 3 have been arraigned as Directors, and there is no averment of fraud or as to why they are personally liable to make the payment to the plaintiff firm, qua them, the suit stands dismissed. Reliance is placed upon Tristar Consultant Vs. Vcustomer Services India Pvt. Ltd. & Anr (supra).
CS No. 1278/2017 Pages 9 of 10 M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors.
13. The plaintiff has claimed pre-litigation, pendente lite and future interest @ 24% p.a. however, the plaintiff has failed to bring on record any such business practice or tendered in evidence any contractual rate of interest agreed between the parties. Therefore, the Court is of the view that interest @ 24% is exorbitant, however, considering that the present transaction is commercial in nature interest @ 12% p.a. shall be suffice towards pre-suit interest, pendente lite and future interest from the date of filing of the suit till its realization.
14. In view of the findings and observations herein above, the suit of the plaintiff stands decreed for sum of Rs. 26,71,000/- alongwith interest @ 12% p.a. towards pre-suit interest, pendente lite and future interest from the date of filing of the suit till its realization. Plaintiff is also awarded with cost of the suit.
15. Decree Sheet be prepared accordingly.
16. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat)
on 03.06.2024 District Judge-01,
New Delhi District,
Patiala House Courts,
New Delhi
CS No. 1278/2017 Pages 10 of 10
M/s Soniver Bags and Luggage Vs. M/s Pioneer Pro Academy Pvt.Ltd. And Ors.