Delhi District Court
Sh. Diwakar Gupta vs Sh. S.K. Puri on 25 April, 2019
CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019
IN THE COURT OF DR. V.K. DAHIYA : ADDITIONAL DISTRICT
JUDGE01: SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 3024/2014 (15887/2016)
In the matter of:
Sh. Diwakar Gupta
Proprietor of M/s Dee Kay Enterprises
At : D220, Sector1, Dwarka,
Pappankalan, New Delhi110 075.
.....Plaintiff
Versus
Sh. S.K. Puri
Authorized Signatory of
M/s Aarti Electro Projects
At : Plot No. 601, Sector17,
PocketA, Dwarka, New Delhi110 075.
Also at :
D456, 2nd floor
Sector7, Ramphal Chowk
Dwarka, Palam, New Delhi .
....Defendants
Date of Institution of Suit : 08.08.2014
Date of reserving judgment : 01.04.2019
Date of pronouncement : 25.04.2019
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CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019
J U D G M E N T:
1. The present suit has been filed by the plaintiff, invoking the jurisdiction of this court for seeking recovery of Rs. 10,02,840/ from the defendant.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff, for filing the present suit are that :
A) That the plaintiff is authorized dealer/supplier of Anchor, Legrand, Indo Asian, SSK, M.K., Kalinga, AKG, Phoenix, PVC Pipes & Cables, Philips, Surya and All Electrical Goods.
B) That the plaintiff and defendant have business terms since long. The defendant had placed purchase order by email and various communications time to time for the supply of various electrical goods by defendant. The plaintiff accordingly supplied material/goods to defendant time to time as per defendant satisfaction and plaintiff issued various bills/invoices.
C) That the plaintiff raised various bills and the defendant paid them time to time to plaintiff details of which are not reproduced here for the sake of brevity and will be dealt with at the later stage.
D) But from last few months defendant had not paid the dues amount to plaintiff as per the statement of account.Page No. 2 of 11
CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019 E) That total outstanding amount is due Rs. 6,48,987/ plus interest @ 24% p.a. i.e. Rs. 3,53,853/ thereon due / outstanding to plaintiff till today.
F) That, plaintiff wanted to keep business relations with the defendant and therefore, requested from time to time to pay the same, but till date defendant has not paid the total outstanding from time to time to pay the same but till date defendant not paid the total outstanding/due amount i.e. a sum of Rs. 6,48,987/ plus interest a sum of Rs. 3,53,853/ till date i.e. total amount of Rs. 10,02,840/ to plaintiff. G) That the Plaintiff had furnished the Defendant with legal notice on dated 06/01/2014, demanding therein the said pending bills amount and other dues i.e. 10,02,840/.
3. The defendant appeared on the service of summons for settlement and filed written statement, interalia submitting that the present suit is barred under the provisions of Order VII Rule 11 CPC, because no cause of action ever accrued against the Defendant for filing present suit for recovery. As per record, the Plaintiff has impleaded the Defendant as party to the suit by alleging him as "Authorised Signatory" of M/s Aarti Electro Projects (hereinafter referred to as the "said firm") that the Plaintiff is aware about the owner/proprietor of the said firm but has intentionally avoided to implead the same as party to the suit. Defendant is not Page No. 3 of 11 CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019 Authorized Signatory of the said Firm. Otherwise, the defendant is running the company in the name and style of M/s Vardaan Contracts Pvt. Ltd. and plaintiff was having good relations with the defendant, therefore, in the absence of owner of said Firm, the defendant had received 34 bills of the plaintiffs The defendant by receiving those bills on behalf of said firm cannot be saddled with any liability. Neither the defendant nor the said Firm received any goods in terms of the invoices issued by the plaintiff in as much as the sales shown in those bills was a bogus sale.
4. Defendant denied the receipt of any goods from the plaintiff as no order was placed by email and various communications for supply of various goods by plaintiff to the defendant. The plaintiff, being director of his company, had business dealings with the plaintiff. It is further submitted that mere issuance of bills did not prove that the goods are supplied in terms of those bills unless and until some mode of delivery of such goods is proved. The statement of account placed on record by the plaintiff could lead to infer that the plaintiff used to receive payment from the said Firm. There was dispute between the defendant as proceedings under section 138 N.I. Act were initiated which stands compromised.
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5. Replication to the written statement was filed wherein the contents as mentioned in the plaint were reiterated and those stated in the written statement were denied.
6. From the pleadings of the parties, following issues were framed : ISSUES (1) Whether the plaintiff is entitled to recover a sum of Rs.
10,02,840/, as prayed for ? OPP (2) If the answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon, if so at what rate and for which period ? OPP (3) Relief
7. The parties to the suit were thereafter called upon to substantiate their respective cases by leading evidence.
8. The plaintiff to do so, appeared as PW1 in the witness box and examined himself as PW1/A and has proved on record following documents :
1. The acknowledged copy of the bill no. 096 dated
09.08.2011 amounting to Rs. 1,34,606/ is Ex. PW1/A,
2. The acknowledged copy of the bill no. 109 dated 08.09.2011 amounting to Rs. 10,778/ is Ex. PW1/B, Page No. 5 of 11 CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019
3. The acknowledged copy of the bill no. 110 dated 09.09.2011 amounting to Rs. 1,45,294/ is Ex. PW1/C,
4. The acknowledged copy of the bill no. 111 dated 09.09.2011 amounting to Rs. 1,17,653/ is Ex. PW1/D,
5. The acknowledgement copy of the bill no. 170 dated 20.11.2011 amounting to Rs. 1,86,266/ is Ex. PW1/E,
6. The acknowledged copy of the bill no. 172 dated 20.11.2011 amounting to Rs. 1,04,996/ is Ex. PW1/F,
7. The print out of statement of account /ledger account dated 06.12.2013 is Ex. PW1/G (Colly.), is Ex. PW1/G,
8. The copy of the legal notice dated 06.01.2014 along with postal receipts and internet generated service reports is Ex. PW1/H.
9. Defendant appeared as DW1 and testified through his affidavitinevidence Ex.DW1/A and reiterated the contents of written statement which are not reproduced herein for sake of brevity. He was crossexamined by Ld counsel for the plaintiff, the relevant portion whereof will be referred to as and when the testimony of DW1 will be discussed at the time of disposing off the issues, so framed. The testimony of DW1, is corroborated by the deposition of DW2. Sh. Naveen Puri, son of defendant.
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10. Ld. counsels for the parties made submissions and I have gone through the record also and have considered the rival contentions raised by Ld counsels for the parties and my issue wise findings are as under:
ISSUE NOS. 1, 2 & 311. These issues are overlapping each other, therefore, are disposed of by common order. It may be noted that the bills in dispute between the parties are numbering 5 and details of such bills is reproduced hereunder : Bill No. Dated Amount Exhibition 096 09082011 Rs. 1,34,606/ Ex. PW1/A(Ex. P4) 109 08092011 Rs. 10,778/ Ex. PW1/B(Ex. P3) 110 09092011 Rs. 1,45,294/ Ex. PW1/C(Ex. P2) 111 09092011 Rs. 1,17,653/ Ex. PW1/D(Ex. P1) 170 19112011 Rs. 1,86,266/ Ex. PW1/E 172 20112011 Rs. 1,04,996/ Ex. PW1/F
12. Plaintiff as PW1 has testified that the goods in terms of bill reproduced in abovesaid paras were received by the defendant and the said bills are duly reflected in statement of account Ex.PW1/G. It may be noted that defendant had admitted that four bills namely Ex.P1, Ex.P2, Ex.P3 and Ex.P4 are bearing his signatures but the defendant denied having received any goods in terms of the abovesaid bills. Ex.PW1/E and Ex.PW1/F are denied Page No. 7 of 11 CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019 by the defendant, but signatures on bill Ex. PW1/E & ex. PW1/F are alleged that of the defendant, who had denied the said signatures at the time of admission/denial of documents.
13. The contention of Ld counsel for plaintiff by placing reliance upon M/s Sylvania & Laxman Ltd., 1998 III AD Delhi 141 that the suit of plaintiff deserves to be decreed in as much as the bills are admitted to have been received by the defendant whereas contention of Ld counsel for defendant by placing reliance upon S.V. Electricals Ltd. Vs Sylvania & Laxman Ltd., Judgment passed in CS(OS) No. 132/1998 by Hon'ble High Court of Delhi is to the effect that no goods were supplied in terms of bills therefore, even if the four bills (Ex. PW1/1 to Ex. PW1/4) are signed by the defendant, defendant cannot be saddled with any liability.
14. Although the plaintiff has agitated that he has issued the abovesaid bills as detailed above and the said bills Ex.P1 to Ex.P4 bears the signatures of defendant yet plaintiff has admitted in his crossexamination that : "It is correct that he have not filed any document on record showing the availability of the goods mentioned in bill no. 96, 110, 111, 170 and 172."
PW1 further admitted in his crossexamination as under: Page No. 8 of 11 CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019 "It is correct that besides the bills placed on record, I do not have any other document as receipt of acknowledgement of goods mentioned in the said bills."
15. Therefore, admittedly there is no documents in the shape of chalan, delivery report etc. even to infer that the goods were supplied in terms of bills including bills Ex. PW1/A to Ex. PW1/D.
16. Defendant as DW1 has denied receiving any goods in terms of the abovesaid bills. DW1 has also denied having signed the bills as the goods detailed in those bills was received by him. DW2, who being son of the proprietor of the said Firm was having knowledge of the business transaction between the plaintiff and the said Firm. He testified that the amount depicted in bill Ex.PW1/B was raised by plaintiff and the payment for the same was made by DW2 and this bill amount of Rs. 10,778/ is debited in the ledger Account Ex. PW1/4 on 08.09.2011 and on reciept of this amount a credit entry dated 29.05.2012 is also made by plaintiff in ledger and Ex. PW1/4. He denied the suggestion that defendant was authorized to give the purchase order and to receive the goods as well as bills for and on behalf of M/s Aarti Electro Project.
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17. Admittedly, there is no evidence on record, either documentary or otherwise, that the goods in terms of abovesaid bills have been supplied to the defendant. So far as bill Ex.PW1/B is concerned, DW2 claimed himself to be the caretaker of the said Firm in the name of his mother as proprietor and he admitted that the goods in terms of said bill were received and payment made by the said Firm. There is no document on record that the said Firm in whose name all the abovesaid bills detailed in para No. 11 of this judgment are issued, was owned by defendant. The defendant disowned having any connection with the said Firm but only admitted the acknowledgement of the abovesaid four bills only.
18. It is the settled law as laid down by superior court that no person can be saddled with the payment of amount for the goods supplied, until and unless, such goods are delivered to such person and in this regard it is apt to reproduce the relevant portion of judgment passed by Hon'ble High Court of Delhi in S.V. Electricals Ltd. (supra) which is as under : "......What emerges upon examination of evidence on record is that the plaintiff admittedly has not placed on record any evidence which is decidedly in its possession in the form of its books of accounts, balancesheet, vouchers etc. Therefore, whether any amounts are due and payable by the defendant to the plaintiff in the plaintiff's books of accounts remains a questionmark........." xxxxxxx Page No. 10 of 11 CS No. 3024/2014 Diwakar Gupta v. S.K. Puri DOD : 25.04.2019 "......The defendant, on the other hand, has refuted that it had received goods in issue which are referred to in paragraph 6 of the plaint. In order to establish that the goods had been supplied, the plaintiff has based its entire case on the monies paid by the defendant towards transportation against lorry receipts generated qua consignment of goods in issue......."
xxxxxxxx "...... The DW1, however, categorically denies the receipt of goods from the plaintiff."
19. So far as reliance placed upon by Ld counsel for plaintiff on Beacon Electronics (supra) is concerned, the same is misplaced in as much as in the said summary suit, the defendant (therein) has issued cheque in lieu of the goods received through the bills issued by plaintiff. Therefore, from the above discussion it can be safely concluded that plaintiff has failed to prove on record that the goods in terms of abovesaid bills was supplied to the defendant. Therefore, the plaintiff is not entitled to any amount and the suit deserves to the dismissed. Hence, the suit filed by the plaintiff stands dismissed.
Decreesheet be drawn accordingly.
File be consigned to record room.
Digitally signed by VIJAY VIJAY KUMAR
Announced in the open court on KUMAR DAHIYA
Date: 2019.05.10
25th Day of April 2019. DAHIYA 12:01:32 +0530 (V.K. DAHIYA) ADDL. DISTRICT JUDGE01 DWARKA DISTRICT COURTS NEW DELHI.
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