Delhi High Court
Sona Wires (P) Ltd. vs Sh. Hem Chand Jain on 27 April, 2006
Author: Swatanter Kumar
Bench: Swatanter Kumar, S.L. Bhayana
JUDGMENT Swatanter Kumar, J.
1. Hem Chand Jain filed a suit for recovery of Rs. 2,16,076/- against M/s. Sona Wires Pvt. Ltd. and another on the basis that he is the proprietor of M/s. Venus Polymers which is carrying on the business of PVC compound manufacturing and trading. The defendant-company used to purchase PVC compound on contract basis. Defendant No. 1 purchased 6000 kgs. PVC compound @ Rs. 42/- containing 150 bags of total amount of Rs. 3,01,090/- vide bill No. 147 dated 20.12.1999. The goods were ordered at the office of the plaintiff which were delivered at Ghaziabad, U.P. The goods were received by the defendants and the defendants were liable to pay the amount/sale consideration. It is also the case of the plaintiff that the defendants made part payment of Rs. 1,71,350/- and Rs. 49,500/- through cheque dated 6.6.2001 by which the amount was credited to the account of the defendant, leaving a balance of Rs. 80,240/-. Since they failed to make the balance payment, the plaintiff claim interest @ 30% per annum after 30 days, in terms of the invoice. They served a legal notice on the defendant dated 11.11.2001. As no payment was received despite legal notice, the plaintiff filed the present suit for recovery of Rs. 2,16,076/- which includes the principal amount as well as Rs. 18,240/- as the interest.
2. The suit was contested by the defendants, who filed the written statement raising the pleas as regards to territorial jurisdiction of the Court, the plaint not disclosing any cause of action and it was also stated that the materials supplied by the plaintiff were of inferior quality and the goods were delivered after the agreed date, as a result of which the defendants suffered losses. This fact was brought to the notice of the plaintiff and as such the plaintiffs are not entitled to any amount and in fact, the amount which was paid to them on 1.6.2001 was in full and final settlement of the amount claimed. The suit is also bad for misjoinder of parties.
3. On the pleadings of the parties the court framed the following issues vide its order dated 20.3.2003:-
1. Whether the court at Delhi has no territorial jurisdiction to try the suit OPD
2. Whether the suit has been filed by a duly authorized person OPD
3. Whether the plaintiff is entitled to recover the balance amount of the bill of material so supplied OPD
4. Whether the plaintiff is entitled to the interest, if so, at what rate and for what period OPP
4. The parties led very limited evidence as the plaintiff examined himself as a sole witness and the defendants examined one Sh. Vijay Kumar Aggarwal. Some of the documents were exhibited. Vide its judgment dated 4.11.2004, the suit of the plaintiff was decreed by the learned Civil Judge, Delhi for the principal amount of Rs. 80,240/- and interest @ 18% per annum till realization.
5. While decreeing the suit the learned Trial Court answered all the issues in favor of the plaintiff including the issue in regard to the territorial jurisdiction of the court. In regard to the findings recorded by the learned Trial Court on various issues, hardly any challenge was raised before us in the present appeal. In any case, the issue in regard to territorial jurisdiction has correctly been decided in light of the judgment of the Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem .
6. The court relied upon Ex.PW1/1, the fact that the order was placed for supply of goods at Delhi, the goods were supplied at Delhi and the payments were also received at Delhi, held that the court had jurisdiction to entertain and decide the suit. We find the said finding to be in accordance with law, thus, the same calls for no interference.
7. The present appeal has not been preferred by the defendant-company, i.e. M/s. Sona Wires Pvt. Ltd. but has been preferred by the defendant No. 2 (in suit) in his individual capacity. The thrust of the arguments of the learned Counsel appearing for the appellant is that the defendant No. 2 was not a Director of the defendant No. 1 at the relevant time. Thus, no liability can be fastened upon the said defendant.
8. There is no doubt that in the written statement, the defendant No. 2 has raised a preliminary objection that he was not a Director at the relevant time. Despite having raised such an objection, the said defendant participated in the suit proceedings without raising any objection or protest. Of course, the obligation to frame the issues is normally on the court, but it is also obligatory on the parties to ensure that all relevant issues are framed, particularly, the issues on which the defendant completely disputes his liability towards the plaintiff. In other words, the defendants ought to have raised and claimed an issue in this regard. On 20.3.2003 when the court framed the issues it was specifically recorded that no other issues are claimed, pressed or made out. The defendant had thus, waived such objection even if taken in the written statement. Not only that no objection was raised at that time, but even thereafter till passing of the judgment, the defendants never took any care to even lead evidence on such a pleading and permitted the proceedings to culminate in the judgment and decree without any such objection, protest and leading even an iota of evidence in that respect. Reference in this regard can be made to the judgment in the case of Piara Singh and Ors. v. Bhupinder Kumar and Anr. 2001 (1) ICC 303.
9. The defendants did not summon any witness from the Registrar of Companies to show that the defendant No. 2 was not a Director at the relevant time. There were specific averments made in the plaint that the order was placed at the behest of defendant No. 2. Defendant No. 1 is a private limited company and can be sued and be sued in its own corporate name. The point now urged in the appeal has in any case been waived by the appellant before the Trial Court by their conduct and even otherwise. Ex. PW1/1 is the invoice No. 147 vide which the goods were delivered to the defendants for a total value of Rs. 3,01,090/-. These goods were duly received and the exhibit PW1/1 bears endorsement to that effect. The court has to keep in mind that admittedly the defendants have made certain payments to the plaintiff in furtherance to the same supplies. The goods were transported through Ex.PW1/2 which also bears the signatures of the same person who had signed Ex.PW1/1. In light of these facts, it cannot be said that the goods were not received by the defendants. The defendants are only putting forward a defense which prima facie cannot be believed. The defendants have chosen to lead hardly any evidence on the matters in issue. Even if for the sake of arguments, it is taken that Sh. S.K. Jain had resigned as a Director, he was expected to prove this plea in accordance with law. He also chose not to lead any evidence. PW1 during his cross-examination, has categorically stated that Defendant No. 2 had contacted him on telephone and placed the order, the supplies of which were made. He also stated that defendant No. 2 even had made the part payments to the plaintiff and denied the suggestion that the part payments were received in full and final settlement. He was confronted with no documentary evidence and nothing material has come in his cross-examination which could disapprove the case of the plaintiff.
10. For the reasons afore-recorded, we find no merit in this appeal, the same is dismissed, however, leaving the parties to bear their own costs.