Delhi District Court
M/S S C J Plastics Ltd vs M/S Chirag Enterprises Pvt. Ltd on 31 August, 2012
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06(CENTRAL),
TIS HAZARI COURTS, DELHI
CS No.174/10/02
Unique Case Id. no.:02401C0141842002
In the matter of:
M/s S C J Plastics Ltd.
Regd. office at
F3/1011, Okhla Industrial Area,
Phase I,
New Delhi - 110020 .......Plaintiff
Versus
M/s Chirag Enterprises Pvt. Ltd.
H35, Masjid Moth,
New Delhi - 1100048
Also at
A18, Sector 5
Noida201301 .......Defendant
DATE OF FILING : 24.01.2002
DATE OF RESERVING JUDGMENT : 08.08.2012
DATE OF PRONOUNCEMENT : 31.08.2012
JUDGMENT:
This is the suit for recovery of Rs. 1,60,752/.
CS no. 174/10/02 1 of 9
1. Brief facts of the case of plaintiff are that as follows: Plaintiff is a company duly incorporated with the Companies Act, 1956, and deals in the Master Batches and Compounds. Defendant, is a Pvt. Ltd. company, Defendant placed an order dated 12.7.99 of with the plaintiff and against that order, plaintiff had supplied to the defendant master batches worth Rs.85,728/ (Rs. eighty five thousand seven hundred twenty eight only) on credit on 15.7.1999 and vide bill no. 1406. Same goods were supplied subject to issuance of form 'C', which the defendant has not issued till date.
That as per payment terms as contained in the said purchase order, defendant had to make the payment of the bill by cheque payable at North Delhi / Noida after 30 days, failing which the defendant was also liable to pay interest on the bill amount due @ 24% p.a from the date of the bill.
That as part payment of the aforesaid bill, defendant has issued in favour of the plaintiff two cheques
i) bearing no.507503 dated 13.3.2000 for Rs.10000/ and
ii) bearing no. 507543 dated 26.6.2000 for Rs. 5000/ drawn on Vijaya Bank, A5, Sector 19, Noida Complex 201 301, both of which have been dishonored by the defendant's bank for the reasons "Funds insufficient". That again as part payment of said bill, lastly defendant had issued in CS no. 174/10/02 2 of 9 favour of the plaintiff a cheque no. 003757 dated 9.4.2001 for Rs.3000/only thus, till date, out of aforesaid sum of Rs.85728/ (Rs. Eighty Five Thousand Seven Hundred and Twenty Eight only), defendant have made a total payment of Rs.3000/. Therefore a sum of Rs.82,728/ (Rs. eighty five thousand seven hundred twenty eight only) is still due from defendant to my client.
As defendant has not made the aforesaid payment immediately after 30 days of issuance of the bill, till date, on the delayed payment of Rs.3000/ upto 19.4.2001 an on the balance payment of Rs.82728/ a sum of Rs.67870/ (Rs. Sixty seven thousand eight hundred seventy only) is also due from the defendant to the plaintiff as interest @ 24 % p.a from the date of the bill upto 21.12.2002. Apart from interest, defendant is also liable to pay to the plaintiff a sum of Rs. 2200/ (Rs two thousand two hundred only) as cost of legal notice dated 8.10.2002.
As the said material was sold subject to issuance of form 'C' by the defendant to the plaintiff, as the defendant has failed to issue form 'C', a sum of Rs. 7954/ is also due towards the sales tax, therefore, as on date, defendant is liable to pay to the plaintiff a total sum of Rs,1,60,752/ (Rs. one lac sixty thousand seven hundred fifty two only) which the defendant has failed to make to the plaintiff despite repeated demands by the plaintiff and assurances by the defendant and despite legal notice dated 8.10.2002 sent by the plaintiff to the CS no. 174/10/02 3 of 9 defendant by registered AD/ post. Defendant never sent any reply to said legal notice nor made any payment in terms of said legal notice.
Thus, the plaintiff is seeking following relief from court by way of present suit " Prayer It is therefore most respectfully prayed that this Hon'ble court may be pleased to:
i) pass a decree for Rs.1,60,752/ (Rupees one lac sixty seven hundred fifty two only)
ii) allow pendente lite and future interest @ 24 % p.a to the plaintiff company;
iii) award cost of the proceedings;
iv) allow any other relief(s) which this Hon'ble court deems fit and proper in the circumstances of the case.
2. The suit was filed under provisions of Order 37 CPC and leave to defend application was allowed vide order of this court dated 12.08.2004.Defendant in his written statement has taken preliminary objection that suit of plaintiff is time barred and that the plaint has not been in accordance with law.
In reply on merits, defendant has admitted that on 12.07.1999, he placed an order with the plaintiff for supply of Master Batches which were sent to the CS no. 174/10/02 4 of 9 defendant on 15.7.1999 however most of the material sent by the plaintiff was rejected by the defendant and vide challan dated 26.07.1999, goods of approximately Rs.80,000/ were returned to the plaintiff. Defendant also informed the same to Mr. Jacob of the plaintiff company vide letter dated 26.07.1999.
It is denied by defendant that any cheques were issued by defendant in favour of plaintiff as part payment, defendant states that at the time of placing purchase order plaintiff had taken certain undated cheques and that plaintiff has filed fictitious dates on the said cheque to bring the suit within limitation.
The said cheque in Para 6 was issued by the defendant for the material which it had retained while the rest of the material worth approximately Rs.80,000/ had been rejected and returned to the plaintiff. Thus, no amount is payable by defendant to plaintiff.
3. In replication, plaintiff has stated that defendant has taken false defence in his written statement. Plaintiff has denied the contentions of defendant in written statement and has reaffirmed his case in plaint as correct.
4. On completion of pleadings following issues were framed on 25.02.05 :
1.) Whether the suit of the plaintiff is barred by limitation (OPD)?
2.) Whether the suit is filed by a duly authorized and competent person?
(OPP)
3.) Whether the plaintiff is entitled for decree of Rs.1,60,752/ along with
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interest as prayed in the suit?(OPP)
4.) Relief.
5. I have heard the Ld. Counsels for both the parties and carefully perused the record.
My findings on each issue are as follows:
Issue No. 1.Whether the suit of the plaintiff is barred by limitation (OPD)? It is admitted case of defendant that he purchased Master Batches from plaintiff and they were delivered to defendant on 15.07.1999.
The cheque bearing no 507543(Ex PW1/6)dated 26/06/2000 belongs to defendant enterprise as proved by the testimony of PW2 Record Clerk from Vijaya Bank. Ex PW 2/1 which is certified copy of folio of cheque book issuing register shows that Cheque leaves No 507503507543 belong to the defendant. Thus the cheque was issued by defendant in favour of plaintiff on 26/06/2000 and the suit is filed on 24.12.2002 I.e. within three years hence is within limitation.
In addition to this DW1 in his cross examination has admitted that defendant had made payment of Rs. 3000/ to plaintiff for same transaction vide cheque No. 003757 dated 09.04.2001.Hence the suit is well within limitation. Thus this issue is decided in favour of plaintiff.
Issue No 2.Whether the suit is filed by a duly authorized and competent CS no. 174/10/02 6 of 9 person?(OPP) Plaintiff has proved Ex PW1/1 which is the resolution dated 16.12.2002 of Board of Directors of m/s SCJ Plastics Ltd. Duly authorising Sh. Amit Kapoor, Accountant Assistant of the company to file the present suit. Thus this issue is also decided in favour of plaintiff.
Issue No 3.Whether the plaintiff is entitled for decree of Rs.1,60,752/ along with interest as prayed in the suit?(OPP) It is admitted case of defendant that he purchased Master Batches worth Rs. 85,728/from plaintiff and they were delivered to defendant on 15.07.1999. Defendant has file a letter Dated 26.07.1999 which is Ex DW1/1 and wherein he has stated that he had returned the goods to plaintiff.
DW1 has admitted that defendant had issued in favour of the plaintiff two cheques one bearing no.507503 dated 13.3.2000 for Rs.10,000/ and other bearing no. 507543 dated 26.6.2000 for Rs. 5000/ drawn on Vijaya Bank, A5, Sector 19, Noida Complex. Both these cheques were dishonoured.
DW1 in his cross examination has also admitted that defendant had made payment of Rs. 3000/ to plaintiff for same transaction vide cheque No. 003757 dated 09.04.2001.
The defence raised by defendant is untenable and self contradictory. According to defendant he had returned goods worth Rs.80,000/ to plaintiff thus CS no. 174/10/02 7 of 9 he was liable to pay up to Rs 5,000/ and out of which he paid Rs 3,000/ by cheque in 2001. Thus only Rs. 2000/ was remaining to be paid then why did defendant draw cheques worth Rs.15,000/ of value in favour of plaintiff which were later on dishonoured. Thus from the pleadings and evidence on record logical conclusion is that defendant took delivery of goods from plaintiff but has failed to make payment for same.
Plaintiff has successfully proved that he is entitled to recover the unpaid purchase amount of Rs .82,728/(Rs. Eighty Two Thousand Seven hundred and twenty Eight Only) from defendant.
However Ex PW1/4 which is a bill/ receipt for goods purchased by the defendant is not sufficient to prove that the rate of interest @ 24% per annum was the rate as agreed between the parties. Plaintiff has not been able to prove that he is entitled to recover Rs. 67,870/ as interest @ 24% p.a. on unpaid amount prior to filing of suit .
Thus this issue is accordingly decided in favour of plaintiff and against the defendants.
Plaintiff has sought pendente lite and future interest @ 24% per annum which to my mind is exorbitant hence interest @ 9% (Nine Per Cent) per annum only is awarded to plaintiff.
CS no. 174/10/02 8 of 9 Relief
A money decree for a sum of Rs Rs .82,728/(Rs. Eighty Two Thousand Seven hundred and twenty Eight Only) along with interest at the rate of 9% (Nine Per Cent) per annum from the date of filing of suit till the date of realization of decretal amount is passed in favour of plaintiff and against the defendant.
Cost of suit is also awarded to plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in open court on this day of 31st August, 2012.
(Richa Parihar) CJ06/Central 31.08.201 Certified that it contains 9 (nine) pages signed by me.
(Richa Parihar) CJ06/Central 31.08.2012 CS no. 174/10/02 9 of 9