Delhi District Court
Sh. Mukesh Kumar vs Sh. Rajeev Kumar on 27 April, 2022
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT JUDGE01, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CNR No. DLSE01-009102-2016
CS DJ211740/2016
Sh. Mukesh Kumar
Through its Proprietor of
M/s Balaji Enigneering Works
B243, Railway Road, New Colony,
Faridabad. ...Plaintiff
VERSUS
Sh. Rajeev Kumar
Proprietor of
M/s R.K. Network Solutions
F230, Lal Kuan, Molar Band,
Badarpur, New Delhi
M/s R.K. Network Solutions
F230, Lal Kuan, Molar Band,
Badarpur, New Delhi
ALSO AT :
Plot No.126127
Vishkarma Colony,
Near Neel Kanth Dharmkata,
Tuglakabad, New Delhi.
...Defendant
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 1 of 15
Date of Institution : 23.11.2016
Date of Reserving judgment : 25.04.2022
Date of Judgment : 27.04.2022
Judgment:
1 The present suit has been filed by Shri Mukesh Kumar Proprietor of
M/s. Balaji Engineering Works (hereinafter called the plaintiff)
under Order XXXVII CPC seeking recovery of Rs.7,26,810/,
against Sh. Rajeev Kumar Proprietor of R.K. Network Solutions
(hereinafter called the defendant), later on it was converted into
ordinary suit vide order dated 23.11.2016 upon submission of
counsel for plaintiff.
Plaintiff's case
2 It is averred that plaintiff deals in metal sheet components, C.V.T.
stabilizer, etc and job work on the materials / metals. It is submitted
that defendant approached the plaintiff for the job work on the
materials / metals as well as for purchase of metal sheet and
supplied goods to the plaintiff for the job work (power coating) etc.
Plaintiff duly returned the goods / material to the defendants upon
completion. Defendant placed an order for purchase of metal sheet
to the plaintiff who supplied the goods as per demand of the
defendant on the credit basis in the year 2014 to 2015 against which
he made part payment to the plaintiff, however, as per Books of
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 2 of 15
Accounts maintained by plaintiff, a sum of Rs.7,26,810/ was still
due and payable by defendant to plaintiff. Despite several requests,
defendant failed to pay the outstanding amount. Thereafter, plaintiff
issued legal notice dated 17.10.2016, which was duly served on
20.10.2016 and despite service of legal notice, defendant did not
make payment of outstanding amount. Hence, the present suit. It is,
therefore, prayed that a decree for an amount of Rs.7,26,810/
alongwith pendente lite and future interest @ 18% p.a. be passed in
favour of the plaintiff and against the defendant with costs of the
suit.
Court Proceedings
3 Summons of the suit were issued to the defendant who appeared and
filed Written Statement.
Case of defendant
4 In the Written Statement filed on behalf of defendant, it is stated that
the suit is not maintainable as defendant had paid the entire amount
towards the purchase of material, rather an amount of Rs.4300/ was
due from plaintiff payable to the defendant. It is alleged that
substandard and defective goods were supplied, on account of
which, his clients declined to pay sum of Rs.3,43,385/ and
Rs.90,000/ causing substantial loss to him. He denied that a sum of
Rs.7,26,810/ was due and payable to the plaintiff. He further
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 3 of 15
submitted that sums of Rs.1,21,000/, Rs.50,000/ and Rs.567312/
were paid by defendant to plaintiff on different occasions and also
paid a further sum of Rs.13,500/ in cash on 11.12.2015, further had
returned goods to the tune of Rs.65,000/ to the plaintiff. Rest of the
averments made in the plaint were denied. Thus, the defendant has
sought dismissal of the present suit.
Replication
5 Plaintiff filed Replication denying the submissions made in the
Written Statement and reiterating the averments made in the plaint.
Issues
6 On the basis of pleadings and documents on record, following issues
are being framed :
1.Whether the plaintiff has no locus standi to file the present suit? OPD.
2. Whether the defendant has already paid the entire recovery amount as prayed for? OPD.
3. Whether the suit is not maintainable in view of preliminary objection no.3? OPD.
4. Whether plaintiff is entitled for recovery of the amount as prayed for?
5. If the issue no.4 is proved in favour of plaintiff, whether plaintiff is entitled to any interest on the recovery amount? If yes, at what rate and for what period? OPP.
6. Relief.
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 4 of 15 Evidence Led By Plaintiff 7 Statement of plaintiff Sh. Mukesh Kumar as PW-1 in lieu of evidence was recorded. PW1 tendered his evidence by way of affidavit Ex. PW1/A, which bears his signature at Points A and B. He has also relied upon the following documents, which are Ex. PW1/1 to Ex. PW1/G and Ex.PW1/B1 (Colly).
S.No. Ex. No. Description of documents
1 Ex. PW1/A (colly) Carbon copy of bills.
2 Ex. PW1/B (colly) Books of account
(computerized)
3 Ex. PW1/C Office copy of legal notice.
4 Ex. PW1/D Speed post receipt
5 Ex. PW1/E Office copy Corrigendum
6 Ex. PW1/F Speed post receipt.
7 Ex. PW1/G Certificate U/s 65B Indian
Evidence Act
8 Ex. PW1/B1 Statement of account.
(colly)
During his cross-examination by counsel for defendant, he denied having filed this case on the basis of false and self procured documents. He further denied that while defendant made protest against him for substandard goods and stated to file a complaint against him that he proceeded to file this case. He stated to have not received even a single penny in respect of Bills Ex.PW1/A (colly). He further denied to have received sums of Rs.1,21,000/-, Rs.50,000/- and Rs.13,500/- from the defendant. He further denied CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 5 of 15 that defendant had returned goods worth Rs.65,000/- and that defendant had paid an amount of Rs.5,67,312/- to him. He further denied that it was on account of the substandard goods as supplied by him to the defendant that he had not received payments from his two parties M/s D.B. Infoways and M/s Netlav Solutions causing loss to him. He stated that order for supply of goods was telephonically placed by the defendant.
Evidence Led By Defendant 8 Statement of the defendant Sh. Rajeev Kumar as DW-1 in lieu of defendant evidence was recorded. DW1 tendered his evidence by way of affidavit Ex. DW1/A, which bears his signature at Points A and B. In his crossexamination by counsel for plaintiff, he stated that he is running the business since 2011 and admitted having not filed any documents relating to his defence. He admitted that as per Bill Ex.PW1/A, he had received all the goods but he could not tell in which bill he had received the sub standard goods. He denied that nothing is due upon the plaintiff and that he had not made any communication writing or oral regarding the inferior quality of goods to the plaintiff. He further denied that he incurred no losses on account of any lapse on part of plaintiff. He denied that no company by the name of M/s. D.B. Infoways and M/s. Netlav Solutions exists that he intentionally mentioned the name M/s. D.B. Infoways and M/s. Netlav Solutions in his evidentiary affidavit as well as in his written statement. He admitted to have placed the CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 6 of 15 order to plaintiff telephonically. He denied that he had no concern with the M/s. D.B. Infoways and M/s. Netlav Solutions and had made the payments of Rs.50,000/ and Rs.13,500/ to the plaintiff. He denied he had not returned the goods to the plaintiff to the tune of Rs.65,000/ and that a sum of Rs. 5,67,312/ was due against the plaintiff. He denied having received all the goods in good quality. He did not remember whether plaintiff ever informed him regarding any outstanding amount as per the Account Statement Ex.PW1/B. Findings Issue no. 1
1. Whether the plaintiff has no locus standi to file the present suit? OPD.
9 The onus to prove this issue is upon defendant. Defendant in his Written Statement stated that there is no amount due against defendant in respect of the material supplied as mentioned in the plaint and thus, plaintiff has no locus standi to file the suit against defendant. Plaintiff has filed the suit on the basis of certain business transactions between plaintiff and defendant over a course of period for which bills were raised, also reflecting the corresponding receipt and Statement of Account which projected amount due and payable by defendant to plaintiff which have all been laid reliance upon and thus, it cannot be stated that plaintiff had no basis or no locus whatsoever to file the present suit. Issue no. 1 accordingly stands decided in favour of plaintiff and against the defendant.
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 7 of 15 Issue no. 3
3. Whether the suit is not maintainable in view of preliminary objection no.3? OPD.
10 The onus to prove the issue no. 3 is upon defendant. It is noted that preliminary objection no.3 raised by defendant in Written Statement which forms the core of issue no.3 is about nonmaintainability of the suit on account of substandard and defective goods having been supplied by plaintiff to defendant which caused commercial losses to the defendant.
10.1 Defence sought to be raised by defendant is that substandard goods and low quality goods were supplied by plaintiff to defendant on account of which his two clients M/s. D.B. Infoways and M/s. Netlev Solutions did not make the payment causing huge financial losses to him which he attributed to plaintiff.
10.2 DW1 did not file a single document in support of affirmation made in Affidavit Ex. DW1/A. Defence taken was about substandard goods having been supplied by plaintiff on account of which his clients M/s. D.B. Infoways and M/s. Netlev Solutions failed to pay Rs. 3,43,385/ and Rs. 99,000/ which caused losses attributable to plaintiff and further, even, CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 8 of 15 substandard goods worth Rs. 6,50,000/ were returned to plaintiff.
10.3 PW1 categorically denied that any protest was ever raised by defendant for supply of substandard goods in any form or manner during the entire business transactions. DW1 was duly cross examined by counsel for plaintiff. DW1 in his cross examination admitted having received all supplies as mentioned in Bills Ex. PW1/A (colly). DW1 was unable to specify any material in any of the bill vide which substandard goods were sent.
10.4 There is nothing mentioned as to which goods and in what manner or capacity or purpose were substandard. Branding anything 'substandard' may have some objective and some subjective criterion and only a bald averment or affirmation cannot be accepted to certify or to assign goods supplied as 'substandard'. It is strange as to why defendant did not stop taking goods or did not stop dealing with plaintiff, despite this, as Bills show a regular business transaction between plaintiff and defendant for the relevant period. Defendant has not tried to even establish that M/s. D.B. Infoways and M/s. Netlev Solutions were his clients or customers. DW1 could have produced some bills for material supplied or services provided to his clients or due amount which they purportedly declined to pay or some CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 9 of 15 correspondence addressed to defendant on their behalf complaining about substandard goods. Further, defendant has not tried to establish any link that material supplied by plaintiff was the only one which was supplied onwards to his two clients. The defence of defendant is totally in shackles and lacks credit worthiness. Defendant has made only bald affirmation without lending any substantiation whatsoever. No proof has been filed of supply of goods not as agreed or not fit for the purpose and that any payment nonetheless was made. There is no proof of return of substandard goods also. Defendant has not been able to discharge burden cast upon him that plaintiff ever supplied substandard or low quality goods. Issue no.3 is decided against the defendant and in favour of the plaintiff.
Issue no.2
2. Whether the defendant has already paid the entire recovery amount as prayed for? OPD.
10.5 The case projected by plaintiff is very simple that he being proprietor of firm had good business relationship with proprietor of defendant no.1 firm and during course of business transactions, while plaintiff supplied goods from time to time on credit basis to defendant no.1 in the year 2014 - 2015 qua which bills were duly raised but were not paid for. DW1 affirmed that entire amount due against him was duly paid and infact plaintiff has some CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 10 of 15 amount of Rs. 4300/ due against him. DW1 also affirmed that he made payment of Rs. 1,21,000/, 50,000/ and 5,67,312/ to plaintiff and further Rs. 13,500/ on 11.12.2015 apart from return of goods worth Rs. 65,000/ which are not accounted for in the Statement of Account. PW1 affirmed that amount paid by defendant against bills were duly adjusted and an amount of Rs. 7,26,810/ remained outstanding as per Books of Account. Defence sought to raised by counsel for defendant as also pleaded in WS was put to PW1 who denied that any amount of Rs. 1,21,000/, 50,000/ or 13,500/ was ever received from defendant or goods worth Rs. 6,50,000/ were returned by defendant to plaintiff. PW1 asserted that all payments made against supply duly find mention in signed and stamped verified Statement of Account Ex. PW1/B. DW1 has thus conceded having received material as per bills Ex. PW1/A, however, DW1 has not produced any record to show that payment of Rs. 1,21,000/, 50,000/, 13500/ or Rs. 5,67,312/ was made at any point of time and against which bill/or supplies to plaintiff. Even though if payments were made in cash, but there is no acknowledgement or even entry in any Account or ledger maintained in due course of business to substantiate the defence raised.
10.6 VAT has been paid by plaintiff against goods sold which is reflected in Statement of Account which has not been disputed.
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 11 of 15 Entries against credit or debit have also not been refuted. Allegedly missing entries have not been produced or proved by defendant. Even any date, time, mode or place or some person before whom any payment was made or any formal/informal acknowledgment or entries or mentioning in subsequent billing or maintaining any account record, nothing has been filed by the defendant. All the bills relied by plaintiff duly bear receipt stamp and none mentions about any protest of supply of substandard jobs or that some material was returned. Plaintiff has duly proved having supplied the material against bills raised and with entries in Statement of Account about those bills and partial payment received against those bills.
10.7 Defendant has not placed or proved any document to show that the amount sought to be recovered has already been paid by him. Defendant has neither produced his Statement of Account nor has disproved entries in Statement of account relied by plaintiff. Defendant has not been able to prove that he has already made payment against all the goods and services and thus is not liable to pay any amount sought to be recovered. Onus was cast upon defendant to prove that he paid for entire material but he has failed to produce any material to prove his case. Only bald unsubstantial affirmation have been made which cannot help the case of defendant. In view of the same, issue no.2 has been decided in favour of plaintiff and against defendant.
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 12 of 15 Issue no. 4 and 5
4. Whether plaintiff is entitled for recovery of the amount as prayed for? OPP.
5. If the issue no.4 is proved in favour of plaintiff, whether plaintiff is entitled to any interest on the recovery amount? If yes, at what rate and for what period? OPP.
10.8 The onus to prove the issue no. 4 and 5 is upon the plaintiff. Defendant worked for gain within jurisdiction of this Court and the material was also supplied within territorial jurisdiction of this Court. The bills placed on record pertain to year 20142015 and the case has been filed in 2016, hence the same is within limitation.
10.9 As already adjudicated in preceding issues that defendant has not been able to prove that plaintiff supplied the substandard goods or that he paid the entire amount against material supplied and infact plaintiff had some amount due towards the defendant. No ledger account / Statement of Account has been filed on behalf of defendant to show details of payment made or any return of substandard goods. Plaintiff, on the other hand, has relied upon Bills Ex. PW1/A(colly) as well as Statement of Account Ex. PW1/B reflecting his business transactions over a period of the time. Statement of Account Ex. PW1/B also has entries against which partial payment was received from CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 13 of 15 defendant and was adjusted towards the outstanding amount. Plaintiff has also paid VAT against his tax liability and is so mentioned in the Statement of Account Ex. PW1/B. Testimony of PW1 is well substantiated and there is no occasion to discredit same. Plaintiff has made affirmation duly supported with relevant and admissible evidence and also stood the test of cross examination without bringing any inconsistent details. Plaintiff has thus been able to prove his case on preponderance of probability, thus entitled to recover an amount of Rs. 7,26,810/.
10.10 Plaintiff has sought interest on the decreetal amount @ 18% per annum, which seems to be exorbitant. In my considered opinion, the ends of justice would be met if interest @ 6% p.a. is granted on the principal amount. Accordingly, interest @ 6% per annum is granted from the date of filing of the suit till date of decree in favour of the plaintiff and against the defendant, future interest @ 4% per annum is also granted till realization of the principal amount. Issue no. 4 and 5 are also accordingly, decided in favour of plaintiff and against the defendant.
Relief 11 In view of the discussion made above, suit of the plaintiff is decreed for a sum of Rs. 7,26,810/. Plaintiff is also entitled for interest @ 6% per annum on the decreetal amount from the date of filing of the suit till date of decree in favour of the CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 14 of 15 plaintiff and against the defendant. Further, future interest @ 4% per annum is also granted till realization of the principal amount.
12 Decree sheet be prepared accordingly. Costs of the suit are also allowed in favour of the plaintiff and against the defendant.
Digitally
signed by
13 File be consigned to Record Room. SHELLY
SHELLY ARORA
ARORA Date:
2022.04.29
04:48:07
+0530
Announced in the open (SHELLY ARORA)
Court on 27.04.2022 Additional District Judge01(SE),
Saket Courts, New Delhi.(sm)
CS DJ211740/2016 Mukesh Kumar Vs. Rajeev Kumar Pg. 15 of 15