Delhi District Court
M/S Rishi Packagingthrough Its ... vs M/S Acro Tech Infrastructure Private ... on 23 April, 2025
IN THE COURT OF SH. LOKESH KUMAR SHARMA
DISTRICT JUDGE (COMMERCIAL COURTS)-05,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS (COMM) 452/23
CNR No. DLST01-010573-2023
M/s Rishi Packaging
Through its Proprietor
Sh. Vikash Keshrwani
Having its registered office at B-213,
Shyam Park Ext. Near Natraj Studio,
Sahibabad, Ghaziabad- 201005, Uttar Pradesh
....Plaintiff
Versus
M/s Acro Tech Infrastructure Private Limited
(CIN: U45200DL2009PTC191451)
Through its directors
Registered address at :-
B-164, Jawahar Park, Deoli Road,
Khanpur New Delhi-110062
Also at: B-107, Sector-88, Phase-2, Noida-201301, U.P.
...Defendant
Institution of the Suit : 31.07.2023
Arguments concluded on : 09.04.2025
Judgment pronounced on : 23.04.2025
JUDGEMENT
1. The present suit for recovery of Rs. 5,63,282/- (Rs. Five Lakhs Sixty-Three Thousand Two Hundred Eighty Two CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 1 of 18 Only) along with pendente lite and future interest has been filed by the plaintiff against the defendant.
2. Brief Facts: As per the Plaintiff, who is claiming itself to be a proprietorship firm with its registered office at B- 213, Shyam Park Ext. Near Natraj Studio, Sahibabad, Ghaziabad- 201005, Uttar Pradesh, was stated to be engaged in the business of manufacturing and dealing of Packaging materials.
The present suit was filed by Sh. Vikash Keshrwani, being Proprietor of the Plaintiff, who was stated to be duly authorized on behalf of the Plaintiff to sign and file the present suit on behalf of the plaintiff firm.
Defendant was stated to be a Private Limited Company registered under the Companies Act, 1956, having its registered office at B-164, Jawahar Park, Deoli Road, Khanpur, New Delhi-110062 and also at B-107, Sector-88, Phase-2, Noida- 201301, U.P represented through its directors who were stated to be responsible for the day-to-day affairs of the Defendant company.
It was stated that the Defendant had business dealings with the Plaintiff and was in the regular practice of placing orders for various types of printed and laminated packaging materials. It was further stated that, in the year 2021, the Defendant had procured packaging materials worth Rs.
CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 2 of 18 11,21,044/- from the Plaintiff to its complete satisfaction and requirement, pursuant to which the Plaintiff had raised the corresponding invoices.
3. It was stated that the goods were supplied on a credit basis and were subject to the jurisdiction of the courts at Delhi. The Defendant was required to make payment by way of Cheque, RTGS, NEFT, or Demand Draft in the bank account of the Plaintiff. It was further stated that the goods were consistently delivered by the Plaintiff to the Defendant at the Defendant's offices located at Delhi-110063 and at B-107, Sector-88, Phase- 2, Noida-201301, Uttar Pradesh. Accordingly, as per the books of account regularly maintained by the Plaintiff in the ordinary course of its business, the following invoices were raised by the Plaintiff.
S.NO Invoice No./Date Amount (Rs.)
1. RP/21-22/038 dated 20/09/2021 1,57,275/-
2. RP/21-22/037 dated 20/09/2021 1,17,967/-
3. RP/21-22/061 dated 08/12/2021 8,11,525/-
4. RP/21-22/066 dated 25/12/2021 34,277/-
TOTAL 11,21,044
4. It was contended that the Defendant had duly received the entire consignment of goods supplied by the Plaintiff, subject to the terms and conditions mutually agreed upon between the parties. It was further stated that the Defendant CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 3 of 18 had accepted the goods without any objection, having sufficient opportunity to inspect the same prior to their use.
5. It was stated that, as on 31.01.2023, against the aforesaid purchase of goods, the Defendant had made part payment to the Plaintiff amounting to ₹6,45,475/- by way of Cheque, NEFT, or RTGS. An outstanding balance of ₹4,75,569/- was stated to be still due and payable by the Defendant to the Plaintiff. Despite repeated demands made by the Plaintiff and the Defendant's repeated assurances and promises to make the payment, the said amount remained unpaid. It was further stated that the Defendant had also agreed to pay interest at the rate of 18% per annum as stipulated in the invoices raised by the Plaintiff.
6. It was stated that the Defendant was under an obligation to make payment to the Plaintiff for the goods purchased under the aforesaid invoices immediately upon receipt of the goods and corresponding invoices. It was further stated that, in terms of market custom and usage, as well as the conditions stipulated on the said invoices, the Defendant was also liable to pay interest at the rate of 18% per annum from the date of the invoices till the date of actual payment.
7. It was stated that, despite repeated requests and demands, the Defendant had failed to discharge the outstanding liability. Consequently, the Plaintiff had served a legal demand notice upon the Defendant on 31.01.2023. However, despite CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 4 of 18 service of the said notice, the Defendant had neither made the payment nor denied the receipt of goods in its vague and evasive reply dated 24.03.2023.
8. The cause of action was stated to have arisen, firstly, when the Defendant had purchased the materials from the Plaintiff to its complete satisfaction and requirement. Secondly, it arose on various dates when the Defendant had made part payments to the Plaintiff and had assured to pay the balance amount along with interest at the rate of 18% per annum as stipulated in the Plaintiff's invoices. Thirdly, the cause of action had continued to arise on various occasions between 20.09.2021 and 31.01.2023, when the Plaintiff had raised repeated demands for the outstanding amount. Finally, it arose on 31.01.2023, when the Plaintiff had issued a demand/legal notice to the Defendant.
9. Since the goods were supplied and delivered to the Defendant at its registered office in New Delhi, and the payment was required to be made into the Plaintiff's bank account also situated in New Delhi i.e. within the territorial jurisdiction of this Court, hence it was stated that this Court had the jurisdiction to entertain and adjudicate the present suit. It was further averred that since the Defendant carried on its business and the legal notice was issued from the place within this jurisdiction, hence, this court was stated to have territorial jurisdiction to try and entertain the present suit.
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10. It was stated that the present dispute between the parties had fallen under the category of "commercial dispute" as per section 2(1)(c)(i) of Commercial Courts Act, 2015 and hence it was stated to be maintainable before this court.
11. In light of the aforesaid facts and circumstances, the plaintiff had prayed for the passing of a decree of Rs. 5,63,282/- along with costs, pendente lite and future interest @ 18% per annum, in favour of the Plaintiff and against the Defendant.
12. Upon service of notice, the defendant had also appeared to contest the case of plaintiff on its merits and filed its written statement on record, wherein it had taken a preliminary objection that plaintiff was guilty of concealment of material facts as well as for not approaching the court with clean hands. No cause of action was stated to have arisen in favour of the plaintiff and against the defendant.
13. On merits, it was submitted that the packaging material supplied by the Plaintiff had been defective and of inferior quality resulting into losses to the Defendant. Upon being informed, the Plaintiff had initially denied its liability but subsequently admitted the defect and had agreed to a 15% deduction from the outstanding amount. An arrangement was also made for payment of the balance in instalments, subject to the return of the Defendant's Rotogravure Cylinders lying with the Plaintiff. It was further stated the Defendant had paid the first instalment, but the Plaintiff had failed to perform its part of the CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 6 of 18 arrangement, hence, Plaintiff was not entitled to the amount claimed. Except for the paras which were either specifically admitted or essentially or purely constituted a matter of record, rest others were denied by them as wrong and incorrect.
14. To this written statement of the defendant, plaintiff had also filed his replication, wherein all the preliminary objections taken by the defendant were denied by it and the contents of plaint were reiterated on merits.
15. On the pleading of the parties, this court vide its order dated 28.05.2024, had framed following issues:
1. Whether plaintiff is entitled to recovery of suit amount, as prayed? OPP
2. Whether Plaintiff is entitled to claim the interest on the suit amount as prayed, if so, at what rate? OPP.
3. Relief
16. In order to prove its case by preponderance of probabilities, plaintiff had examined one witness namely Sh. Vikash Keshrwani, S/o Sh. Kailash Nath Keshrwani, aged about 51 years, Office at B-213, Shyam Park Ext., Near Natraj Studio, Sahibabad, Ghaziabad-201005, who had placed on record, his affidavit Ex. PW1/A in examination-in-chief, wherein he had CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 7 of 18 reiterated the contents of plaint on solemn affirmation. Besides this, he had also placed on record the following documents:-
i) Ex. PW1/1 (Colly). - Copies of Invoices and E-
Bills.
ii) Ex. PW1/2 - Copy of the Ledger Account.
iii) Ex. PW1/3 - Affidavit under Order 11 Rule 6 (3) of The Commercial Court Act, 2015 in support of the ledger account.
iv) Ex. PW1/4 - Legal notice dated 31.01.2023.
v) Ex. PW1/5 - Reply to the Legal Notice, dated 24.03.2023.
vii) Ex. PW1/6 - Mediation Application FORM-1 filed before the DSLSA (South), New Delhi.
viii) Ex. PW1/7 - Certificate of Non-Starter Report dated 09.05.2023 issued by DSLSA (South), New Delhi.
During his cross-examination conducted by the learned Counsel for the defendant, PW-1 had stated that his affidavit was prepared by his counsel. He had initially stated that he did not know where the affidavit was attested but subsequently claimed that it was attested at his counsel's office, though he could not recall the name of the place. He had denied the suggestion that he had not signed the affidavit in the presence CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 8 of 18 of a notary. He had stated that Sh. Rohit Keshrwani was his son and that he had been in business for the last 16-17 years, with no prior knowledge of the defendant before this transaction. Three persons were mentioned as working in his firm: Rajni, who was stated to be managing the accounts; Rajiv, who was stated to be handling the marketing; and he himself was the third person. He had stated that he was personally involved in the transaction, and that the invoices and ledgers were prepared by his accountant. He had also stated that he was registered with the GST Department.
He had stated that Rotogravure printing cylinders were the dyes used for printing on packaging materials. He had admitted that the packaging material supplied to the defendant was also printed using those reusable cylinders and acknowledged that cylinders of a particular type would have always produced the same design. He had further admitted that the cylinders referred to in invoices Ex. PW1/2 dated 20.09.2021 (Sr. No. 037 and 038) were used for printing the packaging material supplied to the defendant. He had further deposed that those cylinders were not delivered to the defendant even after the completion of the printing job and also that not even a single cylinder was handed over to the defendant till the date of his deposition. He had also volunteered that the cylinders were of no use for him; however, since no payment had been made by the defendant for the same, hence they were not delivered.
He had admitted that the defendant had raised the issue of defective material with him and stated that he had CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 9 of 18 informed the defendant that it was due to a fault in their packaging machinery and that the material was not defective. He had stated that some settlement talks were also initiated between him and the defendant. He had denied the suggestion that he had deliberately failed to include the entire correspondence between the parties regarding the settlement. He had also denied the suggestion that the certificate under Section 65B of the Indian Evidence Act (Ex. PW1/7) was not in accordance with the provisions of the Evidence Act. Additionally, he had denied the claim that he had supplied defective material to the defendant. He had further denied the suggestion that no amount was due from the defendant to the plaintiff.
Other formal suggestions were also denied by him as wrong and incorrect including the one that he was deposing falsely.
17. Thereafter Plaintiff's evidence was closed.
18. In rebuttal, the defendant, in its evidence, had examined its employee, Sh. Dheeraj Shishodia, S/o Late Sh. Jaswant Singh Shishodia, aged about 45 years, R/o B-13, Indira Enclave, Govind Puram, Ghaziabad, UP, who was working as a Manager with the defendant. He had appeared in the witness box as DW-1 and filed his examination-in-chief by way of affidavit Ex. DW1/A, wherein he had reiterated the contents of the written statement on solemn affirmation. He had also placed on record the following documents: -
CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 10 of 18
1) Ex. DW1/1- Board Resolution dated 23.02.2024 passed in the favour of deponent.
2) Ex. DW1/2 (Colly.)- Copy of the Email trail.
3) Ex. DW1/3- Certificate under Section 65B of the Indian Evidence Act, 1872.
During his cross-examination conducted by the Learned Counsel for the plaintiff, he had deposed that he had joined the defendant company in May 2022 and was responsible for looking after the administration of the defendant company. He had stated that he had not personally handled any transactions involved in the present case. The invoices marked as Ex. PW1/1 (colly) were stated to have been received by the defendant. He had admitted that a payment of Rs. 6,45,475/- was also made to the plaintiff in relation to these invoices. He had indicated that the plaintiff was informed about the defective quality of the packaging and further asserted that this information was available on record. When asked to produce the relevant document, he had pointed towards Ex. DW1/2 (colly), specifically the email dated 07.03.2022.
He had further admitted that a representative of the plaintiff had visited his factory. However, he had denied the suggestion that the plaintiff's representative had requested the defendant to rectify its packaging machine, asserting that the defect lied with the machine and not with the packaging material. He had acknowledged that the packaging material supplied by CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 11 of 18 the plaintiff was still being utilized by the defendant. He had stated that, since the defective packaging material could not be used in the machine for packing, hence it was not to be released in the market; thus, there was no possibility of receiving any customer complaints in that regard. He had further stated that the defendant had not maintained any record of defective materials.
He had further stated that no cylinders were ever returned by the plaintiff to the defendant. He had denied the suggestion that the defendant had made a false claim regarding the plaintiff having demanded 42 cylinders, as the defendant had only requested for return of 36 cylinders. He had also denied the suggestion that the defendant was not taking back the cylinders because it did not want to make payments to the plaintiff. It was stated that no debit note was demanded by the defendant from the plaintiff in relation to the defective material. He had stated that the plaintiff had agreed to provide a 15% discount, as referenced in the emails marked as Ex. DW1/2 (colly). He had denied the suggestion that the defendant had concocted a false narrative to claim a 15% discount from the plaintiff, which was never agreed upon or offered by the plaintiff. He had stated that various telephonic communications were made to the plaintiff regarding the return of the cylinders. He had denied the suggestion that the cylinders in the plaintiff's possession were of no use for it. He had also denied the suggestion that the defendant had raised concerns about the cylinders and defective material to evade its liability for making the full payment of the invoice amount, further volunteering that the cylinders could have been CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 12 of 18 potentially misused by anyone. Other formal suggestions were also denied by him as incorrect and untrue..
19. Thereafter DE was also closed.
20. I have heard Sh. Anuj Solanki and Sh. Rohit Gaur, Ld. Counsels for Plaintiff and Sh. Sachin Bajpai, Ld. Counsel for Defendant, at length and have gone through the record including the written submission filed on behalf of the plaintiff.
21. In view of aforesaid arguments and submissions of the parties as well as evidence appearing on record, my issue wise findings are as under:
1. Whether the plaintiff is entitled to recovery of suit amount, as prayed? OPP The onus to prove this issue rested upon the Plaintiff. Upon a careful consideration of the respective evidence adduced on record by the parties, it is evidently clear that the existence of a business transaction between the parties stands admitted. The Plaintiff had successfully established the supply of packaging material through detailed documentary evidence (Ex. PW1/1), as well as the part payments made by the Defendant. The Defendant had also not denied the receipt of goods or the payments already made by it to the plaintiff.
CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 13 of 18 Further, the defence set up by the Defendant, alleging that the material supplied by the Plaintiff was defective, is devoid of substantive evidence. The email dated 07.03.2022 relied upon by the Defendant (Ex. DW1/2) is vague and insufficient to establish a concluded settlement or any quantifiable adjustment mutually agreed upon by the parties. The Plaintiff's explanation that any defect in the packaging was attributable to the Defendant's own machinery appears plausible and remains unrebutted. No expert opinion or technical report has been placed on record to substantiate the alleged defects in the material and not in the machinery itself. Moreover, the Defendant had also not disputed the ledger account or the outstanding balance of ₹4,75,569/-. No cogent evidence had been led to rebut the said outstanding amount. Accordingly, the Plaintiff has proved its claim to the said amount by a preponderance of probabilities.
So far the contention of the defendant on the inferior quality of goods supplied by the defendant is concerned, it is interesting to note that the defendant had utilized the services of the plaintiff without raising any objections or pointing out the alleged shortcomings at the earliest opportunity. It was only on 26.05.2022 that the defendant had cited the shortcomings and defects in his work through the email. It is well-settled law that a buyer, who avails services or goods, must raise any grievances regarding quality or deficiencies promptly and within a reasonable time. A reference can be made, in the case of Sorabji Hormusha Joshi and Co. v. V.M. Ismail and CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 14 of 18 another, AIR 1960 Mad 520, where the hon'ble High Court of Madras had made the following observation:
"(18) The seller's duty is to afford the buyer a reasonable opportunity; it is up to the buyer to avail of that opportunity and if he fails to avail of it or if he avails of it in an incomplete or perfunctory manner the seller cannot be held liable: (1919) 1 KB 486; Bragg v. Villa Nova, (1923) 40 TLR 154. Peer Mohammad Rowther v. Dalooram Jayanarayan, AIR 1919 Mad 728; Muthukrishna Reddiar and Sons v.
Madhavji Devichand and Co. Ltd., The opportunity is to be afforded only on request from the buyer.
Where no such request is made it may be presumed that the buyer has dispensed with this requirement, i. e, has chosen to waive. Waiver may be implied from other acts or conduct of the buyer as well; National Traders v. Hindustan Soap Works."
So far as regard to the query raised by this Court concerning the jurisdiction clause mentioned in the Plaintiff's invoices, referring to the jurisdiction of Ghaziabad Court is concerned, the Plaintiff had satisfactorily explained that the mere mention of the Ghaziabad Courts as the forum for the adjudication of disputes did not, by itself, oust the jurisdiction of other competent courts in which the cause of action had arisen. The Plaintiff also submitted that pursuant to Section 20 of the Code of Civil Procedure, 1908, a court possessed jurisdiction to entertain and try a suit unless such jurisdiction was expressly and unequivocally excluded by an agreement between the parties.
CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 15 of 18 Accordingly, the mere reference to the Ghaziabad Courts in the invoices did not oust the jurisdiction of this Court, particularly given that the Defendant resided within its territorial jurisdiction and a portion of the cause of action had also arisen herein. Plaintiff, in order to support its submission, had also placed its reliance on the judgments of Hon'ble Supreme Court and the Hon'ble Delhi High Court, notably in the following cases: *A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem*, 1989 AIR 1239, decided on March 13, 1989; *R.S.D.V. Finance Co. Pvt. Ltd. vs. Vallabh Glass Works Ltd.*, 1993 AIR 2094, decided on February 3, 1993; *Satyapal vs. Slick Auto Accessories Pvt. Ltd. & Ors.*, AIR 2014 Delhi 115, decided on March 5, 2014; *Ms. Auto Movers vs. Luminous Power Technologies Pvt. Ltd.*, CM (M) 604/2020, CM APPL. 30745/2020, decided on September 16, 2021; and *M/s Swastik Gases P. Ltd. vs. Indian Oil Corp. Ltd.*, SLP(C) No. 5595 of 2012, decided on July 3, 2013.
Further reliance was placed on a pertinent paragraph from the case of A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem, wherein the Hon'ble Supreme Court made the following observation:
"22. ............... In the clause 'any dispute arising out of this sale shall be subject to Kaira jurisdiction' ex facie We do not find exclusive words like 'exclusive', 'alone', 'only' and the like. Can the maxim 'expressio unius est exclusio a/terius' be applied under the facts and circumstances of the case? The order of confirmation is of no assislance. The other general terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 16 of 18 jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor of delivery of goods there at was expressly excluded. We accordingly find no error or infirmity in the impugned judgment of the High Court."
Hence, the defendant, by failing to notify the plaintiff about any issues concerning the quality of the material at the earliest available opportunity, had been negligent in exercising its duty to inspect and identify defects as soon as they were noticed. This failure to act expeditiously amounted to a breach of the duty of due diligence imposed on the buyer.
Therefore, I have no hesitation in holding that plaintiff has successfully discharged the onus of this issue and has proved his entitlement to the recovery of suit amount. Issue is accordingly answered in affirmative and decided in favour of the plaintiff and against the defendant.
2. Whether Plaintiff is entitled to claim the interest on the suit amount as prayed, if so, at what rate? OPP.
Onus to prove this issue was also upon the plaintiff and in view of my findings to the issue no. 1 above, I hereby hold that plaintiff is entitled to claim pendente lite and future interest at the rate of 8 per cent per annum on the decretal amount, which is the prevailing rate of interest offered by many nationalized banks on the FDRs. Accordingly, this issue is also answered in CS (COMM) 452/2023 M/s. Rishi Packaging through its Proprietor Vs. M/s Acro Tech Infrastructure Pvt Ltd Page no. 17 of 18 affirmative and decided in favour of the plaintiff and against the defendant.
3. Relief
22. In view of my findings given to issues above, suit of the plaintiff is decreed to the extent of suit amount along with costs and pendente lite and future interest @ 8 % per annum from the date of institution till its actual realisation. Decree sheet be drawn accordingly
23. File be consigned to record room after completion of necessary legal formalities in this regard.
ANNOUNCED IN THE OPEN COURT Digitally signed DATED: 23.04.2025 LOKESH by LOKESH KUMAR KUMAR SHARMA SHARMA Date: 2025.04.23 16:35:46 +0530 (Lokesh Kumar Sharma) District Judge (Commercial Court)-05 South/Saket/New Delhi/23.04.2025
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