Delhi District Court
M/S Gupta Shoes Pvt Ltd vs M/S Jmd Chain Stores Ltd on 21 April, 2017
IN THE COURT OF MS. SUJATA KOHLI, ADDITIONAL
DISTRICT JUDGE, CENTRAL, PILOT COURT, TIS HAZARI
COURTS, DELHI
CS No.384/17
M/s Gupta Shoes Pvt Ltd
2246/47, Shree Balaji Estate,
Dr. Sen Road,
Chandni Chowk,
Delhi110006
Through its Director:
Sh. Vishnu Gupta. ..........Plaintiff
Versus
M/s JMD Chain Stores Ltd
(Now known as Leather World India Ltd)
Through its Director/Managing Director/any
other principal officer:
Godown No.10 & 20,
34/1, Canal South Road,
Kolkatta700017.
Also at:
66/2253, First Floor,
Nai Wala, Gurudwara Road,
Karol Bagh,
New Delhi - 110005. ..........Defendant.
Date of filing of suit: 01.02.2017
Date of reserving judgment: 21.04.2017
Date of judgment : 21.04.2017
Suit for recovery of Rs.10,83,769/.
CS 384/17 page 1 of 11
J U D G M E N T
1.This is a suit filed by the plaintiff for recovery of Rs.10,83,769/ alleged to be price of goods supplied to the defendant.
2. Briefly stated, the facts of the case are that, the plaintiff company is engaged in the whole sale business of footwear under the name and style of M/s Gupta Shoes Pvt Ltd having its registered office at Chandni Chowk.
3. Defendant company is alleged to be placing orders and purchasing goods from the plaintiff from time to time, as per particulars of invoices as furnished datewise, and the total amount of the goods so supplied is alleged to have been Rs.13,84,711/.
4. Defendants were stated to have made part payment of Rs.5 lacs against the aforesaid goods worth Rs.13,84,711/ and this payment of Rs.5 lacs had been vide cheque no.528194 drawn on Kotak Mahindra Bank and encashed into the account of the plaintiff with his bankers at Chandni Chowk on 27.10.2015, as such, the remaining liability stood at Rs.8,84,711/.
5. The material fact as stated is that defendant had also issued C Forms with respect to all the invoices i.e. invoice no.2169 and 2170 dated CS 384/17 page 2 of 11 27.09.2015, and invoice no.2201 dated 29.09.2015, which shows that the entire goods had been received by the defendant to their complete satisfaction.
6. Defendant has further alleged to have issued another cheque no.528195 dated 07.11.2015 also for Rs.5 lacs drawn on the same bank, but requested the plaintiff not to present the cheque as he would make payment. The said cheque remained pending and ultimately lost its validity, nor the defendant paid any cash in lieu thereof.
7. Ultimately, a sum of Rs.8,84,711/ still remained outstanding as the principal and with the interest calculated thereon @ 18% per annum from 27.10.1995 till 31.01.2017 i.e. the date of filing of suit, it came to a sum of Rs.1,99,058/. As such total amount outstanding as on the date of filing of the suit was alleged to be Rs.10,83,769/.
8. Prior to filing of the suit, a legal notice dated 25.10.2016 had been issued demanding the above said principal and the interest.
9. Defendant company is alleged to have replied to the said legal notice, wherein it acknowledged the due and outstanding amount of Rs.8,84,711. But defendant company failed to clear the outstanding CS 384/17 page 3 of 11 amount.
10.The defendant has filed Written Statement and raised preliminary objection to the effect that, some of the goods were defective, and on account of which defendants suffered financial losses, and as such they claimed set off for a sum of Rs.26,730/ on account of expenses incurred on repairing/mending defect in suit, and further set of Rs.4,35,450/ i.e. value of stock alleged to have been rejected/withdrawn by defendant due to poor quality. Infact defendant has also claimed entitled to damages to the tune of Rs.10 lacs. Though they have not filed any such counter claim. All that they have prayed is for dismissal of the suit.
11.In the meantime, an application u/o XII rule 6 of the CPC was filed on behalf of the plaintiff for decree on the basis of admission made by the defendant in the Written Statement as well as reply dated 20.12.2016 to the legal notice. Reply to the said application was filed on behalf of the defendant.
12.After having heard at length, vide order dated 21.04.2017, application u/o XII rule 6 of the CPC was disposed of as allowed.
13. The main emphasis placed by Ld counsel for the plaintiff was, on CS 384/17 page 4 of 11 the conspicuous and the admitted fact that, the defendants, even though had alleged in the written statement about the goods being defective, the defence was absolutely sham; firstly, that it did not find any support in their own reply to the legal notice, wherein they had already accepted the entire liability and only sought extension of time to pay; secondly, that if the goods were indeed defective, how come the defendants never wrote, even a single letter to the plaintiff, throughout, for the period from the date of the first invoice itself i.e. 27.09.2015 onwards right uptill 20.12.2016, when for the first time they mentioned only a whisper about some of the goods being defective and for that too they made it clear that they did not want to raise any serious claim, but instead they accepted the entire liability and sought only an extension of time for payment.
14.During the entire course of arguments, this point as raised by Ld counsel for the plaintiff, and even raised by court by a query, could not be countered or met with by Ld counsel for the defendant or even the defendant.
15.It is not the conduct of a reasonably prudent person even, far from that, of a man of business world, that too of whole sale business, to CS 384/17 page 5 of 11 remain quiet and silent about so much stock of defective products as was being alleged, and infact they would raise hue and cry even upon a single lot being defective. It would not be there conduct to quietly and willingly issue the C Forms even. It would be the normal conduct even of a reasonably prudent man to, at once, raise hue and cry as soon as the defective goods are received, not only they would immediately tried to get rid of them by returned process, but also they would ensure to send some written intimation about the defects immediately.
16. In the present case, as rightly pointed out and emphasized by Ld counsel for the plaintiff, the defendant who was a wholesale buyer of goods, and running chain stores all over, having one chain store at Karol Bagh, simply remained silent about there being any kind of defect in any pair of shoes, and this certainly is not credible when the purchase was in lacs. As rightly contended on behalf of plaintiff, C form is issued only when the customer receives the delivery and is satisfied with the same.
17.Even when the defendants admittedly received the legal notice, after almost one year or so of the delivery of the goods and the invoices, CS 384/17 page 6 of 11 and the price being still unpaid, the defendants still did not avail that opportunity even, to raise any specific defense of defective goods. All that they did was just to make a passing mention about some complaints from their customers qua the products, and just a mild passing reference to some part of the supplies being still kept with them in their warehouse and outlets, and for that also, they categorically stated that, they "are not going to claim for that" and that they "accept" that their "payable outstanding is Rs.8,84,711/ (Rupees eight lacs eighty four thousand seven hundred and eleven only)".
18.In the third and concluding para of the reply also, the defendants have expressed only gratitude to the plaintiffs, for having provided them the time to make the payment against the outstanding. They further, expressed their financial crunch as the reason for the delay in clearing the outstanding as on date of their reply; and last but not least, they further specifically and clearly "assure" the plaintiffs that their "entire outstanding will be paid before 31.03.2017. They even enclosed the part payment of Rs.50,000/ against an earlier dishonoured cheque, and further assuring that, the balance amount CS 384/17 page 7 of 11 shall be paid on a regular interval, so that the entire amount would be paid off before 31.03.2017.
19.If this is not a clear cut admission of liability, what then would be? Simply because the defendant has raised the defence of defective goods in a stronger and an altogether new way in the Written Statement, about which it had been making a mild mention in the reply to the notice, and also expressing that, it was not seriously pressing on any claim, this kind of Written Statement, in complete self contradiction to the contents of its own reply to the legal notice, not even accompanied by a single letter of protest referring to any defects in the shoes throughout the entire period of one year from the date of delivery, can be considered as, nothing but a bald and sham defence, raised simply for the sake of it.
20.Reference be had to the judgment of our own Hon'ble High Court in the case of Assocham v. Y.N. Bhargava, RFA No.12/2011, as under:
7. When the Civil Court deals with an application under Order 12 Rule 6 CPC, the Court is entitled to see, not only the pleadings but also documents in order to find out the admitted position emerging from the record. This is because of the expression or otherwise as found in Order 12 Rule 6 CPC. The issue is now sufficiently pronounced upon by the Supreme Court and the leading judgment in this regard is the decision in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India CS 384/17 page 8 of 11 2008 (7) SCC.
120. In fact, subsequently, the Supreme Court in the case of Charanjit Lal Mehra & Ors. vs. Kamal Saroj Mahajan & Anr. (2005) 11 SCC 279 has gone to the extent of stating, (in a case where the premises were in Delhi and falling outside the Delhi Rent Control Act, 1958) that even an implied admission can be looked into for the purpose of Order 12 Rule 6 CPC. The relevant observations of the Supreme Court in the case of Charanjit Lal Mehra & Ors. (Supra) are found in para 8 of the judgment and which reads as under:-
"8. Learned counsel made an alternative submission that the revision petition was not maintainable and the lease deed is not a registered one and therefore, it is not maintainable. None of these objections were raised by the defendants before the learned Single Judge. Even before the trial court, the non-registration of lease deed(which did not prescribe any term) was not put in issue. It is only devised now to somehow defeat and delay the eviction and possession of the premises to the landlady. In fact, Order 12 Rule 6 CPC is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can b e inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. In the present case, looking at the terms of the lease deed, there can be no two opinions that the tenancy was joint/composite and not an individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India. Their Lordships have held as follows:
"In the objections and reasons set out while amending Rule 6 of Order 12 CPC it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.
CS 384/17 page 9 of 11 The Supreme Court should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment."
Therefore, in the present case, as appearing to us, there is a clear admission on behalf of the defendants that there existed a relationship of landlord and tenants, the rent is more than Rs.3500 and the tenancy is a joint and composite one. As such, on these admitted, facts, there are no two opinion in the matter and the view taken by the learned Single Judge of the High Court appears to be correct and there is no ground to interfere in this special leave petition and the same is dismissed." (emphasis added).
8. In view of the admitted facts which have emerged from the record being the pleadings of the suit, the documents including the legal notice terminating tenancy and reply thereto, the application under Order 12 Rule 6 CPC and reply thereto (and which themselves are pleadings in terms of Order 12 Rule 6 CPC by virtue of the decision in the case of Uttam Singh Duggal (Supra)), the requirements of Order 12 Rule 6 CPC are complied with for the suit to be decreed under the same.
21.In view of the above discussion, I have been of the view that defendant has failed to raise any defence worth its name, which would raise any triable issue and such like frivolous defence is actually not a defence but through and through there is a clear cut admission of liability. It is only when faced with litigation, that defendant has come up with the story of defective goods, self contradicted by his earlier reply to the legal notice itself.
22.There is no reason why the defendant be not held bound by its own admission in its reply to the legal notice and why the defendant CS 384/17 page 10 of 11 should be allowed to take contradictory stand in the Written Statement, totally unsupported by any document even on the face of it, there is no good reason why the plaintiff be not held entitled to a decree on admission.
23.In view of the separate detailed order as passed on application u/o XII rule 6 of the CPC, suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs.10,83,769/ along with pendentelite and future interest @ 18% p.a., besides costs of the suit. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 21.04.2017 (SUJATA KOHLI) Additional District Judge, Central, Pilot Court, Delhi CS 384/17 page 11 of 11