Delhi District Court
And Having Its Office At vs Arss Infrastructure Projects Ltd on 17 December, 2013
IN THE COURT OF SH. ANIL KUMAR SISODIA :
ADDITIONAL DISTRICT JUDGE06 : WEST DISTRICT
TIS HAZARI COURTS : DELHI.
CIVIL SUIT NO. 692 OF 2012
M/s. Shell India Markets Pvt. Ltd.
A company incorporated under
The provisions of Companies Act, 1956
Having its Registered Office at:
2nd Floor, Campus 4A, RMZ Millenia
No.143, Dr. M.G. Road, Kandanchavady
Perungudi, Chennai,
Tamil Nadu - 600096.
And having its office at:
Plot No.696, Ghevra Village
Opposite IOC Indane Gas Plant
Rohtak Road, P.S. Mundka,
New Delhi110041.
Represented through its Authorized Representative
Mr. Vijay Verma
Debt Recovery and Credit M.I. Manager .....PLAINTIFF
Versus
ARSS Infrastructure Projects Ltd.
A company incorporated under
The provisions of Companies Act, 1956
Suit No.692/2012 Page : 1/14
Having its Registered Office at:
Plot No.38, SectorA, Zone - D
Mancheswar Industrial Estate
Khurda Bhubaneswar,
Odisha - 751010.
And having its office at:
Plot No.B5, 8th Floor
KLJ Tower, North Netaji Subhash Place
District Centre, Pitampura,
New Delhi110034. ..... DEFENDANT
Date of Institution:18.09.2012
Order reserved on:13.12.2013
Date of Decision :17.12.2013
SUIT FOR RECOVERY
J U D G M E N T :
1. The plaintiff company has filed the present suit for recovery of Rs.10,01,145/ along with interest against the defendant stating that the plaintiff is engaged in the business of sale of Lubricants, Grease, Gear Oil, Hydraulic Oil & Brake Fluid etc. The defendant company was one of the customers of plaintiff company since the year 2006 and is maintaining a Suit No.692/2012 Page : 2/14 running account with the plaintiff company. The plaintiff company had been supplying to the defendant company the requisite quantity of lubricants, grease, gear oil, etc. and the defendant accepted the same and invoices were raised. It was further stated that there had been delays in making the payment of various invoices by the defendant company and after giving the credit to all the payments made by the defendant, there was an outstanding of Rs.7,67,949/ against the defendant. The plaintiff sent various reminders to the defendant but without any avail. The senior officials of plaintiff company also visited the office of the defendant company but despite repeated assurances of the defendant company, it fails to clear the outstanding amount. In response to the EMail dated 23.02.2012, defendant sent a reply dated 24.02.2012 admitting the liability but requested for a period of two weeks. On 15.05.2012, plaintiff sent an EMail demanding the outstanding amount but the same was not cleared by the defendant company and subsequent thereto, defendant has been raising unnecessary and illegal disputes. Ultimately, the plaintiff company issued the legal notice Suit No.692/2012 Page : 3/14 dated 19.05.2012 by registered post which was duly served on the defendant on 23.05.2012. Thereafter the officials of the defendant contacted the defendant company and shown intention to make the payment and sought further time which was refused by the plaintiff company. When the defendant failed to make the payment, the plaintiff filed the present suit.
2. The summons of the suit were served on the defendant on 02.02.2013 and Vakalatnama was filed by the Counsel on behalf of the defendant on 02.04.2013 and time was sought for filing the written statement. However, the WS was filed by the defendant only on 22.05.2013 but the same was taken off the record as it was beyond the stipulated period of 90 days. Thereafter the Counsel for the defendant filed fresh Vakalatnama on 12.11.2013 and application u/O 7 Rule 10 and u/O 9 CPC was filed on 26.11.2013. The application u/O 9 CPC was dismissed on the same date and the application u/O 7 Rule 10 CPC was kept in abeyance to be disposed off along with the suit.
3. The plaintiff examined PW1 Sh. Vijay Verma in support of its case. He filed his examinationinchief by way of affidavit Suit No.692/2012 Page : 4/14 Ex.PW1/1 and exhibited the Power of Attorney in his favour as Ex.PW1/A; Statement of Account as Ex.PW1/E; the copy of the Legal Notice dated 19.05.2012 as Ex.PW1/H; the postal receipts as Ex.PW1/I1 & I2; the Courier Receipts as Ex.PW1/J1 & J2 and AD Card as Ex.PW1/K. He has also placed on record the copy of Certificate of Incorporation as Mark A; copy of fresh Certificate of Incorporation consequent upon change of name as Mark B; copy of the Extract of Meeting of Board of Directors as Mark C; copy of the Letter dated 24.02.2012 issued by the defendant as Mark D and copy of the EMail dated 15.05.2012 issued on behalf of the plaintiff as Mark E. The defendant did not crossexamine the witness of the plaintiff despite opportunities being given and consequently PE was closed on 17.10.2013.
4. I have heard Counsel for the plaintiff as well as Counsel for the defendant and have perused the record carefully including the written submissions filed by the defendant as well as the plaintiff.
Suit No.692/2012 Page : 5/14 I have also gone through the application u/O 7 Rule 10 CPC r/w Sections 20 & 151 CPC filed by the defendant for returning the plaint on the ground that this Court has no territorial jurisdiction to try the suit. It was submitted that the plaint and documents relied upon by the plaintiff does not disclose any cause of action or part of cause of action that has arisen within the jurisdiction of this Court. It was also stated that subordinate office of the defendant at New Delhi started functioning only since February 2012. The EMail dated 24.02.2012 relied upon the plaintiff was not sent by the subordinate office of the defendant at New Delhi. Similarly, the EMail dated 15.05.2012 has no concern with the subordinate office of the defendant at Delhi or any executive working therein. The delivery of legal notice dated 23.05.2012 does not give rise to any cause of action.
In support of the application, the Counsel for the defendant relied upon following judgments :
(a). Kusum Ingots and Alloys Ltd. vs. Union of India & Anr. (2004) 6 SCC 254
(b). Kamla Chopra vs. Life Insurance Corporation of India & Ors. AIR 1975 Delhi 15.
Suit No.692/2012 Page : 6/14
(c). WP(C) No.4684/2005 decided on 17.11.2006, titled as Satish Pathak vs. The Zonal Manager, LIC of India & Ors.
(d).CS(OS) 276/2012 decided on 29.07.2013, titled as Degremont Limited vs. Kolkatta Municipal Corporation.
(e).Rattan Singh Associates (P) Ltd. vs. Gill Power Generation Company Pvt. Limited reported in 2009 (93) DRJ 431.
(f).Writ Petition (C) No.5133/2005 decided on 23.12.2005, titled as Jai Ganesh Petroleum vs. Union of India & Anr.
Counsel for the defendant also argued that the transaction prior to period of three years cannot be taken into consideration in the present suit and the plaintiff has filed statement of account which shows the transaction between the plaintiff company and defendant company from 10.09.2006 which cannot be subject matter of the present suit. The defendant, in his written submissions, has also raised various factual objections which, however, cannot be taken into consideration, keeping in view the fact that the defence of the defendant has already been struck off.
Suit No.692/2012 Page : 7/14
5. The plaintiff in its written submissions has reiterated the averments made in the plaint and has argued that the suit is liable to be decreed in favour of the plaintiff as defendant was one of its customer since 2006 and plaintiff had been supplying the goods to the defendant regularly which were accepted by the defendant without raising any dispute. There have been several delays in making the payment by the defendant to the plaintiff and a sum of Rs.7,67,949/ was due and payable by the defendant. The defendant has admitted its liability towards the plaintiff but has failed to make the payment. The defendant has failed to give any reply or make any payment to the plaintiff despite receipt of legal notice dated 19.05.2012.
6. On the question of territorial jurisdiction of this Court, Counsel for the plaintiff has argued that the application filed by the defendant u/O 7 Rule 10 CPC at the fag end of the trial cannot be entertained. It was argued that as per Section 21 CPC, objections as to the territorial jurisdiction of the Court has to be taken at the earliest possible opportunity and in any case, at or before the settlement of issues and the objections Suit No.692/2012 Page : 8/14 not taken at the earliest cannot be allowed to be taken at a subsequent stage. Reliance has been placed on the judgment of Hon'ble Supreme Court in Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Anr. AIR 2005 SC 4446.
7. Sections 15 to 20 CPC deal with the jurisdiction of the Courts to try the suit. Section 15 CPC provides that the suit shall be instituted in the Court of lowest grade competent to try it. Sections 16 and 17 CPC deals with the jurisdiction in case of immovable properties. Section 19 deals with the compensation for wrongs to person or movable property. Section 20 CPC deals with the remaining class of cases. Section 20 (c) CPC provides that every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises.
Hon'ble Supreme Court in Patel Roadways Ltd. Vs. Prasad Trading Company (1991) 4 SCC 270 held in para9 that clause (c) of Section 20 refers to the Court within the local limits of whose jurisdiction cause of action wholly or in part arises. It was also held in para 12 of the judgment that Suit No.692/2012 Page : 9/14 the suit could have been instituted at the place of principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at a place where the cause of action arise under Clause (c) (irrespective of whether the Corporation had a subordinate office at such place or not). Explanation even at the end of Section 20 is really an explanation to Clause (a).
In New Moga Transport Company Vs. United India Insurance Co. Ltd. & Ors. (2004) 4 SCC 677, Hon'ble Supreme Court held that a choice of forum is available to the plaintiff under Clause (a) and (c) of Section 20 CPC and he cannot be compelled to go to place of residence or business of the defendant and can file a suit at a place where the case of action arises.
In Startech Enggcon Pvt. Ltd. Vs. Bundelkhand University 147 (2008) DLT 276, it was held that "place where payments were being made or required to be made is relevant to determine the territorial jurisdiction and the payment of amount for the work done is a part of cause of action".
Suit No.692/2012 Page : 10/14
8. At the outset, it may be mentioned here that WS of the defendant was taken off the record vide order dated 22.05.2013 as the same was beyond the stipulated period of 90 days and further, the application of the defendant for taking the WS on record was dismissed vide order dated 26.11.2013. Hence, there is no defence of the defendant available on record. The plaintiff in para 15 of the plaint has stated that a part of cause of action has arisen in Delhi and therefore, this Court has jurisdiction to entertain and decide the present suit. There is no rebuttal to this averment and even the testimony of PW1 has remained unrebutted. The documents filed by the plaintiff shows that plaintiff was receiving the payments at Delhi and therefore, a part of cause of action has arisen in Delhi and the it cannot be said that this Court has no territorial jurisdiction to try the present suit.
9. The burden of proving the case always rests on the plaintiff and it never shifts. The case the plaintiff must stand on its own legs and not on the weaknesses of the case of the defendant. Hence, irrespective of the fact that the defendant has failed to put up a defence, it is the duty of the plaintiff to Suit No.692/2012 Page : 11/14 prove its case by leading cogent evidence.
In the instant case, the plaintiff has claimed recovery of Rs.10,01405/ for the goods supplied to the defendant. The case of the plaintiff is that since 2006, the plaintiff has been supplying the goods to the defendant and the defendant had accepted the said products and invoices without raising any dispute about the quality or quantity of the goods supplied.
The plaintiff has examined PW1 Sh. Vijay Verma who filed his examinationinchief by way of affidavit Ex.PW1/1 and reiterated the stand taken in the plaint. However, the plaintiff has not placed on record even a single invoice showing the supply of the goods to the defendant. No delivery challans, no invoices or no GR receipts have been produced and proved by the plaintiff to show that the goods were actually supplied to the defendant.
Reliance has been placed on the Statement of Account Ex.PW1/E and certain EMails Mark A to Mark E. However, the plaintiff has not even proved the Statement of Account in accordance with law nor the correspondence by EMail has been proved by the plaintiff. The plaintiff has not examined Suit No.692/2012 Page : 12/14 the person maintaining the accounts nor has produced the original Books of Accounts, Ledgers and Invoices.
The plaintiff has also failed to prove the Certificate u/S 65B of the Indian Evidence Act to prove the records maintained electronically. Section 65B of Indian Evidence Act is a mandatory provision for proving the electronic records and noncompliance of the conditions mentioned therein is fatal to the case of the plaintiff. Section 65B(1) of Indian Evidence Act provides that an information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied.
10. Since, in the present case, conditions of Section 65B Indian Evidence Act are not satisfied, the documents, relied upon by the plaintiff i.e. the Statement of Account Ex.PW1/E and the copy of EMail dated 15.05.2012 Mark E are inadmissible in evidence and cannot be looked into. There is no other evidence adduced by the plaintiff to prove its case.
Suit No.692/2012 Page : 13/14
11. In view of my findings as aforesaid, I am of the considered opinion that the plaintiff has failed to establish its case against the defendant and therefore, it is not entitled to any relief. The suit of the plaintiff is accordingly dismissed. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON: 17th December, 2013.
(ANIL KUMAR SISODIA) Additional District Judge06/ West Tis Hazari Courts, Delhi.
Suit No.692/2012 Page : 14/14