Delhi District Court
M/S M.D. Enterprises vs M/S Royal Airways on 9 April, 2015
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE -SENIOR DIVISION
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 71/14
ID No. 02401C0422482006
M/s M.D. Enterprises,
Through its Proprietor
Sh. Som Dutt
H-17/121, Sector - 7,
Rohini, Delhi - 110085. ............. plaintiff
vs.
M/s Royal Airways
(formerly Modi Luft Ltd.)
Office at:-
Cargo Complex, Domestic Airport,
Palam, New Delhi. ............. defendant
Date of Institution of Suit : 02-12-2004
Date of reserve for judgment : 06-04-2015
Date of announcement of Judgment : 09-04-2015
SUIT FOR RECOVERY OF RS.2,98,880/-
JUDGMENT :
1. Initially the suit was filed under Order 37 CPC. Summons for judgment served upon the defendant. Thereafter, leave to defend application allowed vide order dated 10-11-2006.
2. The brief facts, as per averments of the plaint, are that the defendant placed orders for the supply of certain items to the plaintiff vide purchase order no. MP/PO/1135 dated 21-11-1995 for a sum of Rs.45,81,520/- and same was accepted by the plaintiff. That on receipt of said purchase order the plaintiff fabricated the required equipment as mentioned in item no. 2 and part delivery was made to the defendant worth Rs.3,03,880/- vide bill/invoice no. 79 dated 14-02- 1996 and challan no. 57 dated 14-02-1996 which was duly acknowledged by the Suit No. 71/14 1/6 MD Enterprise vs Royal Airways defendant's officials but the defendant failed to make payment of the bill as per agreed terms but sought some more time. That the defendant on one or the other pretext kept on delaying the payment in respect of aforesaid supplied made by the plaintiff and thereafter the defendant stopped its operation due to some internal dispute and the plaintiff kept on visiting the officials of the defendant from time to time and made written requests and reminders to release the outstanding amount but to no avail except assurances which turned false in due course of time. That sometime in the year 1996 Modi Luft Ltd. was taken over by the present defendant i.e. M/s Royal Airways alongwith all the assets and liabilities and accordingly the defendant owed and possessed the assets and liabilities and assured the plaintiff that the company's taken over process is in progress and the aforesaid outstanding amount/ payment shall be made as soon as company's taken over process is completed and defendant wrote a letter dated 14-11-2000 to the plaintiff and requested to meet Mr. Sameer Baweja, Manager Flight Dinning Service of the defendant and requested the plaintiff to submit the quotations for supply of equipment manufactured by the plaintiff in the name of the defendant M/s Royal Airways, however, the defendant officials assured the plaintiff that the outstanding amount shall be paid by the defendant but the plaintiff insisted for the long over due payment. That the defendant was served a legal notice dated 16-09-2004 which was sent through speed post on 17-09-2005 thereby demanding the outstanding dues of Rs.2,98,880/- within a period of 15 days but the defendant failed to even reply the said notice. That the defendant is liable to clear the outstanding amount of Rs.2,98,880/- alongwith interest @ 18% p.a. from the date of bill.
3. WS filed on behalf of the defendant wherein in preliminary objections it is stated that the suit is not maintainable as it does not fall within the ambit of Order 37 CPC. That the defendant placed a purchase order dated 21-11-1995 with the plaintiff with the direction to supply the requisite material within one month but plaintiff failed to do so. That the suit of the plaintiff is barred by Limitation Act and Suit No. 71/14 2/6 MD Enterprise vs Royal Airways the same is liable to be dismissed outrightly with exemplary costs. That the present suit is not maintainable and is liable to be dismissed as applicant is entitled to unconditional leave to defend the present suit in as much as the present suit is not maintainable as the same has been filed by legally non-existent entity i.e. M/s M. D. Enterprises. Admittedly, M/s M. D. Enterprises is a proprietorship firm and one Sh. Som Dutt alleges himself to be the proprietor of the same. Other averments of the plaint have been denied as wrong on merits.
4. No replication filed on behalf of the plaintiff to the WS of the defendant.
5. From the pleadings of the parties, following issues were framed vide order dated 06-12-2006 :
1. Whether the suit is barred by limitation? OPP
2. Whether the plaintiff is entitled to decree of recovery, as prayed for? OPP
3. Whether the plaintiff is entitled to interest, as prayed for?
OPP
4. Relief.
6. To substantiate its case, the plaintiff filed and tendered affidavit of Sh. Dinesh Sharma as PW-1 and he was cross-examined on behalf of the defendant. Sh. Vivekanand Jha, Record Clerk, Deputy Provost Marshal, Air Head Quarters (Vayu Bhawan), Rai Marg, New Delhi also examined as PW-2 on behalf of the plaintiff and he was cross-examined on behalf of the defendant. No other witness has been examined on behalf of the plaintiff.
7. The defendant filed and tendered affidavit of Sh. Vijay Roy and he was cross-examined on behalf of the plaintiff. No other witness has been examined on behalf of the defendant.
Suit No. 71/14 3/6MD Enterprise vs Royal Airways
8. I heard final arguments on behalf of ld. counsel for the defendant.
9. I considered the submissions of ld. counsel for the defendant and perused the entire record. My issue-wise findings are as under :
Findings on issue no. 1 :Whether the suit is barred by limitation? OPP
10. It is submitted by the ld. counsel for the defendant that the suit is barred by limitation as according to the claim of the plaintiff, delivery of items as per purchase order was made vide bill/ invoice no. 79 dated 14-02-1996, Ex. PW- 1/2 through challan no. 57 dated 14-02-1996 which was duly acknowledged by the officials of the defendant and the suit was filed by the plaintiff on 02-12-2004.
11. I considered the submissions of ld. counsel for the defendant as submitted above.
12. As per Article 14, the suit was required to be filed within the period of 3 years from the date of delivery of goods or where the goods are sold on credit, within 3 years from the date when the limitation of credit expires. Therefore, I agree with the submissions of ld. counsel for the defendant that the suit of the plaintiff is hopelessly time barred. This issue is decided accordingly.
Findings on issue no. 2 : Whether the plaintiff is entitled to decree of recovery, as prayed for? OPP
13. The plaintiff has prayed for recovery of sum of Rs.2,98,880/- on the basis of goods supplied to the defendant vide invoice/ bill no. 79 for a sum of Rs.3,03,880/-.
14. It is submitted by the ld. counsel for the plaintiff that PW-1 has stated during his cross-examination that "no work is being undertaken by my father in Suit No. 71/14 4/6 MD Enterprise vs Royal Airways the name of the plaintiff firm and I have never been associated with the plaintiff firm". He has also stated that "I have never dealt with the defendant company qua the transaction in question". Ld. counsel for the defendant submits that PW-1 has not acknowledged alleged supply of the goods by the plaintiff to the defendant as he has admitted that the transaction in dispute never took place in his presence.
15. I agree with the submissions of ld. counsel for the defendant that since the transaction in dispute did not take place in presence of PW-1, it has not been proved on behalf of the plaintiff that the goods were supplied to the defendant and therefore, the plaintiff is not entitled for recovery of the suit amount.
16. No witness has been examined on behalf of the plaintiff to prove the delivery challan as well as the fact that the goods were delivered to the defendant. Therefore, I am of the view that the plaintiff has failed to prove the delivery of the goods to the defendant and as such it is held that the plaintiff is not entitled for recovery of the suit amount.
17. During cross-examination DW-1 has stated that "Modiluft Airways was taken over by Royal Airways and thereafter Royal Airways was changed to Spicejet Ltd.". He has also stated that "in the Delhi High Court matter pertaining to Creditors Scheme was filed for settlement of creditors and the list of creditors alongwith mentioning of amount of rentals was filed in Delhi High Court". DW-1 has produced the certified copy of the scheme duly approved by the Delhi High Court wherein the names of creditors of the defendant company are mentioned and the name of the plaintiff company is not mentioned in the list of creditors. Therefore, I am of the view that the plaintiff is not entitled for recovery of suit amount.
18. In view of the above discussions and reasons therein, it is held that Suit No. 71/14 5/6 MD Enterprise vs Royal Airways the plaintiff is not entitled to a decree of recovery of the suit amount, as prayed. This issue is decided against the plaintiff.
Findings on issue no. 3 : Whether the plaintiff is entitled to interest, as prayed for? OPP
19. In view of my findings on issue no. 2, it is held that the plaintiff is not entitled to any interest when he is not entitled to any suit amount. This issue is decided accordingly.
Relief
20. In view of findings on issue no. 1 to 3 as above, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced in the open court (CHANDRA BOSE)
on the 9th day of April, 2015 Civil Judge-Senior Division
Central District, Delhi
Suit No. 71/14 6/6
MD Enterprise vs Royal Airways