Delhi District Court
M/S Donaldson India Filter Systems Ltd vs M/S Shree Tirupati Impex Agencies on 28 May, 2013
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE 01(CENTRAL)
TIS HAZARI COURTS, DELHI.
C.S. No. 263/2009
Unique ID no.02401C0773582007
M/s Donaldson India Filter Systems Ltd.
Having its registered office at:
Village: Naharpur Kasan
Post Office: Nakhrola
Gurgaon, Haryana.
through its Company Secretary
Ms. Anita Goel. ...Plaintiff
Versus
M/s Shree Tirupati Impex Agencies
Through, Mr. Pradeep
98A, Kamla Nagar, Geeta Bhawan,
Ist Floor, ( Near SBI),
Delhi-110 007. ...Defendants
Date of institution of the suit : 09.08.2007
Reserved for judgment on : 25.04.2013
Date of pronouncement of judgment : 28.05.2013
JUDGMENT: This is a suit for recovery of a sum of Rs. 14,90,791.91/ against C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 1 of 28 2 the defendants.
2. Briefly stated, the facts of the case, as propounded by the plaintiff, are as under:
i) The plaintiff Company M/s Donaldson India Filter Systems Pvt. Ltd, is a Company duly incorporated under the provision of The Companies Act, 1956 and having its registered office at Village Naharpur Kasan, Post Office Nakhrola, Gurgaon, Haryana, engaged in the manufacturing, marketing, assembling, buying, selling, exporting, importing all kinds of filters and self clearing air filtration systems of gas turbines, compressors, automobiles filters, filters for construction equipment, ventilation, cooling, pollution control, fabrication of structure, modules and connected items of air filter units, filter assemblies, filter elements, and other components parts and spares used therein and also ducting and silencer and such other business.
ii) Ms. Anita Goel, is the Company Secretary and competent to file, institute, sign, depose, verify and pursue the present suit for and on behalf of the plaintiff company and who is otherwise also, well conversant with the facts and circumstances of the present C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 2 of 28 3 case, on the basis of information derived from the records maintained by the plaintiff Company, in its ordinary course of business.
iii) The defendant, is having its office at M/s Shree Tirupati Impex Agencies, 98A, Kamla Nagar, Geeta Bhawan, Ist Floor, (Near SBI), Delhi 110007 and the defendant is authorized signatory of the defendant.
iv) The defendant is having long business relation with the Plaintiff Company. In the usual course of business transaction, the defendant placed orders to the plaintiff company for the supply of various kind of air filter sets, Air Filter Elements, Oil Filter Elements, Air Oil Separator etc and the plaintiff company supplied the same, as per the specification asked by the Defendant. The orders were placed to the plaintiff company by defendant through various Emails on different dates.
v) The plaintiff Company delivered the goods as per the purchase order placed by the defendant through Emails. The consignment was sent to the defendant by issuing challan on each delivery.
vi) The goods supplied by the plaintiff company were duly accepted C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 3 of 28 4 by the defendant, without ever raising and dispute whatsoever and the same were to the absolute satisfaction of the defendant. However, the defendant have failed to honour the commitment of making payments within the stipulated credit limit and failed and neglected to make the payments against the invoices raised for the goods supplied by the plaintiff company and duly received by the defendant to their satisfaction. The defendant has failed to clear the outstanding against the supplies made by the plaintiff company.
vii)The various invoices which are due against the defendant and respective amounts are as under: S. No. Invoice No. Invoice Date Amount Amount Due
1. 1031/05 07.09.2005 1,541,327 808,817.95
2. 569/05 19.09.2005 39,969 2120.00
3. 604/05 30.09.2005 50,987 50,987
4. 605/05 30.09.2005 17,172 17,172
5. 636/05 11.10.2005 29,914 29,914
6. 703/05 27.10.2005 40,967 40,967
7. 704/05 27.10.2005 50,528 50,528
8. 755/05 17.11.2005 6,882 6,882 C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 4 of 28 5
9. 756/05 17.11.2005 10,254 10,254
10. 774/05 24.11.2005 46,901 46,901
11. D/N No. 446 21.12.2005 3,488.36 3,488.36
12. 1158/05 10.01.2006 21,546 21,546 TOTAL 3719870.72 1089577.31 vii.The plaintiff company maintains running account of the defendant as usual in trade or business. As per the running account maintained by the plaintiff company there stood a total outstanding of Rs. 10,98,210/ against the defendant. The defendant company also maintains running account of the plaintiff. That as per the running account of the defendant, the defendant owes Rs. 10,89,577.31 to the plaintiff company. viii.Despite best services rendered by the plaintiff company, the defendant have failed and neglected to make the payment against the goods supplied to the defendant. The defendant has failed to abide by the terms and conditions of the payment schedule and have further failed to honor, the commitment made by the defendant to make the payment for the aforesaid supply of goods within the stipulated credit limit.
C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 5 of 28 6 ix. When the defendant did not respond to the request and the reminders made by the plaintiff company, the plaintiff company was constraint to issue legal notice dated 29.05.2006 demanding a sum of Rs.16,01,885/. The said legal notice was duly received by the defendant and the same was replied vide letter dated 29.06.2006 wherein the defendant have admitted that they owe a sum of Rs.10,89,557.31/ and further prmised to pay the said amount, however the defendant have again failed and neglected to pay the said due amount to the plaintiff. The plaintiff company has again sent a demand legal notice on 18.02.2006 for the payment of said amount to the plaintiff. x. The defendant owes a principal amount of Rs.10,89,577.31/ as on 29.06.2006 to the plaintiff company. The defendant further owes Rs.92,614.07 to the plaintiff company on account CST against 'C' Form raised by the plaintiff company against each invoices. The sum total of Rs.10,89,577.31/ and Rs.92,614.07 amounts to Rs.11,82,191.38. The plaintiff company is also entitled to charge against interest @24% per annum as per business and trade norms on amount of Rs.11,82,191.38 from C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 6 of 28 7 29.06.2006 to 31.07.2007 from the defendant. The interest @24% per annum as per business and trade norms on the amount of Rs.11,82,191.38 from 29.06.2006 to 31.07.2007 amounts to Rs.308600.53. Thus the defendant is liable to pay a sum of Rs. 14,90,791.91 till 31.07.2007 along with pendentelite and future interest @24% from the date of filing till the date of realization. xi. The plaintiff is entitled to a decree of Rs.14,90,791.91 till 31.07.2007 along with pendentelite and future interest @24% from the date of filing till the date of realization.
3. The defendant was served with the notice of the suit and put a contest to the suit by filing its written statement.
4. In its written statement the defendant has taken the following preliminary objections:
(i) The suit of the plaintiff is without any cause of action against the answering defendant and no amount of plaintiff is due towards the defendant. However, the defendant has to recover the amount of Rs.4,00,000/ from the plaintiff for which the defendant shall file the separate recovery suit against the plaintiff.
C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 7 of 28 8
(ii)The plaintiff has not come in Court with clean hands and the plaintiff has suppressed the material facts from the Court. However the plaintiff has filed the tempered and forged documents allegedly dated 29.06.2006 and the plaintiff has wrongly shown invoice no.1031 dated 07.309.2005 for Rs. 15,41,327/ No goods was sent by plaintiff at any time against the alleged invoice no. 1031 dated 07.09.2005. However the plaintiff forged the said documents just to export the money from the defendant. However, the defendant paid worth Rs.4,00,000/ to the plaintiff as per statement of account time to time and the plaintiff did not send any goods nor refund the amount of defendant.
(iii)The suit is not maintainable in the absence of any authorized person or the constitution of plaintiff company.
(iv)The court has no jurisdiction to try and entertain the present suit in view of Agreement dated 01.08.2005. Further the Arbitrator can decide the matter.
(v) The suit of the plaintiff is barred by limitation as prescribed in the agreement dated 01.08.2005 between the parties. C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 8 of 28 9
(vi)The defendant is a proprietorship concern no suit can be filed against proprietorship concern.
5. On merits, the defendant denied the cause of action as propounded by the plaintiff and denied the other material averments of the plaint in the terms of his preliminary objections and facts pressed into service on merits. The defendant denied that it owes the principal amount of Rs.10,79,577/31 paise as on 29.06.2006 to the plaintiff and stated that the suit is without any cause of action.
6. The following issues have been framed vide the minutes of proceedings dated 29.05.2008:
Issue no.1 Whether the suit has been signed, verified and instituted by a duly authorized and competent person? OPP Issue no.2 Whether the suit has been filed within the period of limitation? OPP Issue no.3 Whether this court has territorial jurisdiction to entertain and try the suit? OPP Issue no.4 Whether the claim of plaintiff rests on tempered, forged and manipulated documents and therefore, not maintainable? OPD Issue no.5 Whether the plaintiff is entitled to recover the suit amount with interest from the defendant? OPP Issue no.6 Relief C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 9 of 28 10
7. The plaintiff has examined Shri Surinder Kaul its DGM as PW1. The witness has been examined in chief on 24.08.2011 and 17.11.2011. The witness has been cross examined on various dates i.e. 17.11.2011 and 26.04.2012. On 26.04.2012 the cross examination of PW1 was deferred due to request of defendant citing illness of counsel and matter adjourned to 25.07.2012. On that day PW1 did not appear and PE was closed.
8. The defendant did not examine any witness and closed it DE vide statement recorded on 30.01.2013.
9. I have heard Shri Pramod Kumar, Ld. Counsel for the plaintiff and Shri O. P. Aggarwal, Ld. Counsel for the defendant.
10. Ld. Counsel for the plaintiff has submitted that the document Ex.PW1/10 clinches the issue no. 5 as it shows a categorical admission on the part of defendant. The defendant has not led any evidence to rebutt it. The case is within limitation. There can be no objection as to jurisdiction as the defendant resides within the limit of Delhi. The witness PW1 can be read in evidence and his deposition cannot be ignored merely because his cross examination was not complete. The plaintiff is entitled to the decree.
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11. Ld. Counsel for the defendant has argued that it is a case of no evidence. The testimony of PW1 cannot be read in evidence as his cross examination has not been completed. There was no need to give evidence on the part of the defendant for want of any evidence on the part of the plaintiff. Section 102 of the Evidence Act is attracted. Hence the suit be dismissed.
12. No other point was argued or urged. No case law has been cited by either of the parties.
13. I have considered the submissions and the material on record.
14. Before I advert to the specific issues in the suit, I deem it necessary to deal with the question as to whether the evidence of a witness who has been partly cross examination but his cross examination could not be concluded can be read in evidence.
15. This aspect came up for consideration in Diwan Singh vs. Emperor AIR 1933 Lah. 561. In that case the Privy Council cited with approval the case of Fuller vs. Rice 4 Gray (Mass) 343 in which Shaw CJ, said that "No general rule can be laid down in respect of unfinished testimony. If substantially complete, and the witness is prevented by sickness or death from finishing his testimony whether C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 11 of 28 12 vica voca or by deposition, it ought not to be rejected, but submitted to the jury with such observation as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected."
16. In Gopal Saran vs. Satyanarayan AIR 1989 SC 1141 it has been held that in the absence of cross examination reliance on examination in chief is not safe.
17. In the present case the nonappearance of PW1 is not due to the exigencies envisaged in Diwan Singh vs. Emperor AIR 1933 Lah. 561 as no such plea has been put forth by the plaintiff. Cross examination is a tool to test the veracity of the statement in examination in chief--it is a means to search the truth. There may be thousand and one reasons that can be foreseen for non appearance of the witness, some of which may be in favour of the plaintiff and some in favour of the defendant. The court cannot speculate into the same. In my view the totality of facts and circumstances leads to inference that the unfinished testimony of PW1 be not considered and the material on record be examined to opine on the issues and to render the final verdict.
18. I may add here that it is not always necessary for any party to C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 12 of 28 13 compulsorily enter into the witness box to prove its case. A case may have a cluster of facts which are required to be established. Besides entering into the witness box, these facts may be proved in a civil lis in many ways some of which are illustrated as under:
(i). By the express admissions of the adversary in pleadings/documents or otherwise;
(ii). By failure to deny in pleadings etc i.e. deemed admissions.
(iii). By Adverse Inference i.e. by failing to produce documents despite notice to produce; by withholding material evidence etc.
(iv). by presumptions of law or facts;
(v). by any other mode recognized by the law.
19. The law has made provision for judgment on failure to file written statement under Order 8 Rule 10 CPC or on admissions under Order 12 Rule 6 CPC etc. Thus it is the duty of the Court to consider all the aspect of the case and not merely to bank upon the oral evidence of witnesses.
20. My findings on various issues are as under: C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 13 of 28 14 Issue no.1 Whether the suit has been signed, verified and instituted by a duly authorized and competent person?
21. The plaintiff has filed the suit through Ms. Anita Goel, is the Company Secretary.
22. A company is a juristic person and has to as a rule exercise its functions through human agency. Order 29 Rule 1 of the Code of Civil Procedure reads as under: "ORDER XXIX SUITS BY OR AGAINST CORPORATIONS
1. Subscription and verification of pleading-- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."
23. In para 2 of the plaint it has been stated that Ms. Anita Goel, is the Company Secretary and competent to file, institute, sign, depose, verify and pursue the present suit for and on behalf of the plaintiff company and is conversant with the facts of the case.
24. The defendant, in its written statement, has simply denied the Ms. Anita Goel is neither the Secretary of the plaintiff company nor she is competent to file the present suit. It is mere bald denial or denial for C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 14 of 28 15 the sake of denial. The defendant has not disclosed as to who is the company secretary if Ms. Anita Goel is not the company secretary.
25. In United Bank of India vs. Naresh Kumar & Others (1996) 6 SCC 660 it has been held: "8. In this appeal, therefore, the only question which arises for consideration is whether the plaint was duly signed and verified by a competent person.
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity, it is obvious that some person has to sign the pleadings on behalf of the company. Order C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 15 of 28 16 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour, of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 16 of 28 17 on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer."
26. In the present case a 16,890/ has been affixed on the plaint; Advocate has been engaged to file and prosecute the case and ostensibly he must have been paid his professional fee; There is nothing to suggest that Ms. Anita Goel is a busybody who is squandering her time and money on fruitless chores. If the company succeeds in the case no laurels are going to fall into her lap. Thus the facts and circumstances on record suggest that Ms. Anita Goel has instituted the suit and signed and verified the pleadings for and on behalf of the plaintiff company. Thus the circumstances suggest that she is the Company Secretary and entitled to maintain the suit on behalf of the plaintiff. Under the law it is incumbent upon a company to have a Company Secretary and if the defendant had reasons to believe that Ms. Anita Goel is not the Company Secretary of the plaintiff, then what prevented it to disclose the name of the actual Company Secretary. The objection is therefore an art for art's sake objection. Thus the totality of C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 17 of 28 18 fact on preponderance of probabilities leads to the only inference that the stand of the plaintiff that Ms. Anita Goel is its Company Secretary is correct. Thus she has rightfully instituted the suit on behalf of plaintiff. No other inference reasonable seems to be flowing.
27. Thus the facts and circumstances on record suggest that the suit has been duly instituted by a duly authorized person; the plaint has been signed and verified by him accordingly under the said authority. The technical objection as raised by the defendant is only an art for art's sake objection and has no merits.
28. The finding on this issue is returned in affirmative. Issue no.2 Whether the suit has been filed within the period of limitation?
29. The suit of the plaintiff is a suit for recovery based on goods supplied, invoices and accounts. The invoices are for the period 07.09.2005 onwards. The suit has been instituted on 09.08.2007.
30. The stand of the defendant is that the suit is barred by limitation as prescribed in the agreement dated 01.08.2005 between the parties.
31. The Article of limitation which is attracted in the present case is Article 14 of the Schedule of the Limitation Act which reads as under: C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 18 of 28 19
14. For the price of Three years The date of the delivery goods sold and deliv of the goods.
ered where no fixed period of credit is agreed upon.
32. Apparently the suit has been filed within 3 years of each invoice propounded by the plaintiff. The defendant has not led any evidence in support of its pleading that the suit is barred by limitation as prescribed in the agreement dated 01.08.2005 between the parties. The alleged agreement dated 01.08.2005 has not been proved on record. It is not elucidated by the defendant in the course of the arguments as to how the parties by a private agreement can obliterate or overwrite the Limitation Act. Such private legislations is neither envisaged nor sanctioned by law.
33. Thus the suit is within limitation and the objection as made by the defendant is without any merits.
34. The finding on this issue is answered in affirmative. Issue no.3 Whether this court has territorial jurisdiction to entertain and try the suit? OPP C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 19 of 28 20
35. Ostensibly this issue does not flow from the pleadings. Neither in the written statement nor in the course of arguments any objection as to territorial jurisdiction has been raised by the defendant.
36. Section 20 of the Code of Civil Procedure reads as under:
"20. Other suits to be instituted where defendants reside or cause of action arises--Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdic tion--
(a) the defendant, or each of the defendants where there are more than one, at the time of the com mencement of the suit, actually and voluntarily re sides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or car ry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXX"
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37. The plaintiff has stated the defendant to be the resident of Delhi which is not disputed. The affidavit of plaintiff in support of the written statement states the same address of the plaintiff as stated in the plaint.
38. The issue is therefore answered in affirmative. Issue no.4 Whether the claim of plaintiff rests on tempered, forged and manipulated documents and therefore, not maintainable? OPD
39. The onus of this issue has been on the defendant. plaintiff. The burden of this issue is also on the defendant as it is the person who alleges fraud and forgery must prove it.
40. As no evidence has been led by the defendant the onus as well as the burden of proof has not been discharged.
41. Thus this issue is answered against the defendant. Issue no.5 Whether the plaintiff is entitled to recover the suit amount with interest from the defendant?
42. The plaintiff in para 9 of the plaint has stated as under: 'When the defendant did not respond to the requests and the reminders made by the plaintiff company, the plaintiff company was constraint to issue legal notice dated 29.05.2006 demanding a sum of Rs.
C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 21 of 28 22 16,01,885/ (Rupees sixteen lakhs one thousand eight hundred and eighty five only). The said legal notice was duly received by the defendant and the same was replied vide letter dated 29.06.2006 wherein the defendant have admitted that they owe a sum of Rs.10,89,577.31 (Rupees Ten lakh eighty nine thousand five hundred and seventy seven and thirty one paise only) and further promised to pay the said amount, however the defendant have again failed to neglected to pay the said due amount to the plaintiff. A copy of the legal notice dated 29.05.2006 is being annexed as Annexure24. A copy of letter datedv29.06.2006, reply of defendant acknowledging the amount of Rs.
10,89,577.31 (Rupees Ten lakh eighty nine thousand five hundred and seventy seven and thirty one paisa only) due upon the defendant is being annexed as Annexure25. The plaintiff company has again sent a demand legal notice on 08.12.2006 for the payment of said amount but the defendant have again failed and neglected to pay the said due amount to the plaintiff. A copy of legal notice dated 18.12.2006 for the payment of said amount is being annexed as Annexure - 26.
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43. In the corresponding para of the written statement the defendant has replied as under: 'The contents of para no.9 of the plaint are wrong, false, highly misconceived, malafied and hence the same are specifically denied. Annexure 24 to 26 are the false documents.
No such legal notice was even sent by the plaintiff to the defendant. The defendant never sent Annexure 26 allegedly dated 29.06.2006. Hence all the Annexures no.
24 to 26 are false and fabricated documents.
The defendant has nothing to pay to the plaintiff. The entire claim of plaintiff against defendant is false.
44. The letter dated 29.06.2006 which is Ex. PW1/10 (this is referred to only as to the nomenclature) is reproduced as under: "Date 29 June 2006 To Donaldson India Filter Systems Pvt. Ltd.
Villae Naharpur Kasan PO Nakhrola Distt. Gurgaon12001 Haryana.
Kind Attn: Mr. A. R. Bakshi Subject: Out Standing Payment C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 23 of 28 24 Dear Sir, Please refer your legal notice that we want to bring in your kind notice that our Actual outstanding against you is Rs.10,89,577.31 Rupees Ten Lakh Eighty Nine Thousand Five Hundred Seventy Seven and Paise Thirty One only. At present we are in financial problem that is why we are not able to pay above amount at present.
But sir we will try to pay the amount as above as soon as possible.
So sir you are requested, kindly give us some time to clear the amount of outstanding payment. We will be very thankful to you for this kind coopration.
Thanking you, Shree Tirupati Impex Agencies Sd/ Auth. Signatory Enclosed: Copy of statement of account.
Note: We have sent statement earlier also to Mr. Saraswat. Kindly tally the Account."
45. The pleadings in the written statement clearly show that there is no specific denial of the letter dated 29.06.2006 by the defendant. Only vague and omnibus averments alleging the document false and fabricated. It has not been specified as to what is the nature of forgery or falsehood in the said letter. The onus of the plea of forgery had been C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 24 of 28 25 on the defendant but the defendant did not enter into the witness box. Thus deemed admission as well as adverse inference is liable to be drawn against the defendant. In the case of Laxminratan Cotton Mills Vs. Aluminum Corporation of India AIR 1971 SC 1482 and Food Corporation of India vs. Assam State Cooperative Marketing and Consumer Federation Ltd. & Ors' VI (2004) SLT 599 the law on the aspect of acknowledgment has been enunciated which apply to the facts of the present suit in view of the vague and omnibus denial as well as the defendant not proving the documents to be forged as propounded by it.
46. Other relevant circumstances which point out towards the falsity of defendant's stand are that it did has propounded that it has to recover a sum of Rs. 4,00,000/ from the plaintiff as advance tendered. This fact indicates that the plaintiff and defendant are not strangers and there was some transaction between them. The defendant has not propounded any case that it had ever sent any notice of demand to the plaintiff or filed any suit for recovery. Admittedly, it did not set up any counter claim in the present suit. This conduct is off the line as far the conduct of an ordinary prudent person is concerned. Objection of arbitration is taken C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 25 of 28 26 on the plea of some agreement dated 01.08.2005 but no arbitration has ever been invoked by the defendant. Only invoice no. 1031 has been denied thus there is deemed admission of other invoices.
47. When two parties make transactions both of them maintain their respective statement of account. When the plea of payment of Rs. 4,00,000/ has been made by the defendant then it cannot be ruled out that it must have found mention in the books of accounts as maintained by the defendant. The defendant did not produce any accounts, where it could have very well proved the factum of documents of the plaintiff been false and forged by producing its books of accounts and by showing that it has no other entry except the sum of Rs. 4,00,000/ which it had to recover from the plaintiff. Ostensibly the same were not filed or tendered in evidence as had it been produced it would have gone against the defendant. No other inference seems to be possible.
48. In view of the aforesaid there is a deemed admission as far as the letter Ex. PW1/10 is concerned. The provision of Order 12 Rule 6 CPC does not envisage admission in pleadings but other admissions also.
49. Thus the admission in letter dated 29.06.2006, Ex. PW1/10, is binding against the defendant as it is unequivocal, clear and ambiguous. C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 26 of 28 27 As such an amount of Rs.10,89,577.31 (Rupees Ten Lakh Eighty Nine Thousand Five Hundred Seventy Seven and Paise Thirty One only) has been admitted by the defendant to the plaintiff in terms of its letter dated 29.06.2006, Ex. PW1/10.
50. This issue is answered accordingly.
Relief
51. In view of my findings on the above issues the suit of the plain tiff is decreed in the following terms:
(i). A decree of Rs. Rs.10,89,577.31 (Rupees Ten Lakh Eighty Nine Thousand Five Hundred Sev enty Seven and Paise Thirty One only) is passed in favour of the plaintiff and against the defen dant, with pendetalite and future simple interest @ 10% (Ten Percent Only) per annum from the date of institution of suit viz. 09.08.2007 till the final realization of the decreetal amount.
(ii).The defendant shall also pay to the plaintiff the costs of the suit.
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52. Decree sheet be drawn accordingly.
53. After necessary compliance, the file be consigned to the Record Room.
Announced in the Open Court On this 28th day of May, 2013 (MAN MOHAN SHARMA) ADJ (Central)1, Delhi C.S.263/2009 Donaldson India Filter vs. Shree Tirupati Impex. Page 28 of 28