Delhi District Court
Apex Electricals vs M/S. Parishudh Machines Pvt. Ltd. ... on 26 April, 2018
IN THE COURT OF SH. M.P. SINGH, ADJ-03 (CENTRAL DISTRICT),
TIS HAZARI COURTS, DELHI
CS No. 419/2017
New CS No. 11705/2016
In the matter of
Apex Electricals,
1809, 2nd Floor, Bhagirath Place,
Chandni Chowk, Delhi-06 ...... Plaintiff
Versus
1. M/s. Parishudh Machines Pvt. Ltd. (Through its Director)
C-26, Industrial Area, Meerut Road
Ghaziabad-201003 (Uttar Pradesh)
2. Shri G. S. Goindi
Director of M/s Parishudh Machines Pvt. Ltd.
C-26, Industrial Area, Meerut Road,
Ghaziabad-201003 (Uttar Pradesh) ......Defendants
SUIT FOR RECOVERY OF MONEY
Suit instituted on - 10.06.2011
Arguments heard on - 11.04.2018
Judgment pronounced on - 26.04.2018
JUDGMENT
1. Plaintiff, a registered partnership firm, has brought the instant action against the defendants for recovery of money towards supply of electrical goods and appliances. Sh. Anil Kumar Gupta, a partner of plaintiff firm, having its registered office at 1809, 2 nd floor, Bhagirath Palace, Chandni Chowk, Delhi, filed the instant suit on its behalf.
2. Plaintiff had been supplying goods from time to time to the defendants as per the purchase order placed by the latter. Plaintiff used to raise an invoice upon the defendants for each supply. In the normal course of business, plaintiff raised the following invoices for supply of goods to the defendants for which it received no payment: -
CS No. 419/2017 New CS No. 11705/2016 Page 1 of 18 Sl. No. Invoice No. Dated Amount (Rs.)
1. 291 24.12.2009 928.20 Defendants deny
having received
goods vide this
invoice
2. 295 24.12.2009 349.86 Defendants deny
having received
goods vide this
invoice
3. 296 24.12.2009 6,242.40 Defendants deny
having received
goods vide this
invoice
4. 314 02.01.2010 14,516.82 Defendants admit
having received
goods vide this
invoice
5. 332 08.02.2010 30,709.85 Defendants deny
having received
goods vide this
invoice
6. 333 08.02.2010 13,387.50 Defendants deny
having received
goods vide this
invoice
7. 340 18.02.2010 18,478.32 Defendants deny
having received
goods vide this
invoice
8. 341 18.02.2010 14,671.27 Defendants deny
having received
goods vide this
invoice
9. 357 16.03.2010 1,823.69 Defendants admit
having received
goods vide this
invoice
10. 363 22.03.2010 8,020.90 Defendants admit
having received
goods vide this
invoice
CS No. 419/2017
New CS No. 11705/2016 Page 2 of 18
11. 364 22.03.2010 7,912.32 Defendants admit
having received
goods vide this
invoice
12. 365 22.03.2010 43,253.61 Defendants admit
having received
goods vide this
invoice
13. 366 22.03.2010 18,218.59 Defendants admit
having received
goods vide this
invoice
14. 369 27.03.2010 903.21 Defendants admit
having received
goods vide this
invoice
Total - Rs. 1,79,416.54 (Goods worth Rs. 94,649.14/- admitted to have been received; goods worth Rs. 84,767.40/- not admitted to have been received)
3. In addition to the above, plaintiff also makes the following claims against the defendants: -
a) Defendant company incorrectly showed in its account books two debit entries qua two cheque payments, totaling Rs. 1,15,547/-, which are as follows: - (i) cheque dt. 13.03.2009 for Rs. 50,000/-, and (ii) cheque dt. 04.04.2009 for Rs. 65,547/-. Plaintiff avers that it never received these two cheques.
b) Further, defendant company issued a cheque bearing no. 488031 dt.
30.10.2009 for Rs. 1,13,622/- (Ex. PW1/19) in plaintiff's favour. However, after issuing the said cheque, at defendants' request plaintiff did not present it for encashment. Nonetheless, defendant company in its account books wrongly showed this cheque as having been encashed.
c) Next, defendant company deducted Rs. 43,102.80 and Rs.
77,502.55 (totaling Rs. 1,20,605.35) through various general vouchers from plaintiff's dues sans any reason.
CS No. 419/2017 New CS No. 11705/2016 Page 3 of 184. Thus, according to the plaintiff, defendants are liable to pay to it Rs. 14,48,739.96 as per the following table.
(i) Total Invoice Amount Rs. 1,79,416.54
(ii) Payment allegedly made through two Rs. 1,15,547.00
cheques, but not received by plaintiff
(iii) Payment made through cheque no. Rs. 1,13,622.00
488031 (Ex. PW1/19), but not
encashed
(iv) Amount illegally deducted from Rs. 1,20,605.35
plaintiff's account through various
general vouchers
(v) Interest on late payment for financial Rs. 5,69,018.25
year 2008-2009
(v) Interest on late payment for financial Rs. 3,50,530.82
year 2009-2010
Total Rs. 14,48,739.96
5. Plaintiff avers that as per the contract with the defendants, the latter were required to issue 'C' forms qua sales made by it and for the invoices mentioned above. Defendants, however, have allegedly not supplied the requisite 'C' forms to the plaintiff. Plaintiff's repeated requests and reminders to the defendants to make payment of the outstanding amount were of no avail. As defendants took no steps to regularize the accounts, plaintiff issued a legal notice dt. 08.10.2010 to the latter asking them to make payment of the outstanding amount, but to no avail.
6. On these averments, plaintiff seeks to recover Rs. 14,48,739.96/- from the defendants together with pendente lite and future interest thereon at the rate of 24% per annum together with costs of the suit.
7. Defendants filed their written statement. Defendants deny having received goods mentioned at serial no. 1, 2, 3, 5, 6, 7 and 8 of the table in paragraph 2 hereinabove. Rest of the amounts, it is stated, are duly debited in plaintiff's accounts in the books of defendant no.1.
CS No. 419/2017 New CS No. 11705/2016 Page 4 of 188. As regards plaintiff's other claims, defendants make the following averments: -
a) Two cheques were initially credited to plaintiff's account in the books of defendant no.1, but subsequently the entry was reversed.
Defendants did not deduct the amount of aforesaid two cheques totaling Rs. 1,15,547/- from plaintiff's accounts.
b) There is no credit entry in account books of defendant no.1 qua cheque no. 488031 dt. 30.10.2009 (Ex.PW1/19). Plaintiff did not encash this cheque for reasons best known to it, but in any case the same was never debited in plaintiff's accounts in the books of defendant no.1. There are huge transactions between the plaintiff and defendant no.1. Defendant no.1 purchased goods worth more than Rs. 50 lacs and as soon as plaintiff encashes any cheque, the same is credited to plaintiff's account in the account books of defendant no.1. Defendant no.1 maintains its books of accounts in the normal course of business.
c) As regards deduction of Rs. 43,102.80 and Rs. 77,502.55 (totaling Rs. 1,20,605.35), defendants state the following. Plaintiff raised inflated bills. Defendant no.1 intimated the plaintiff on checking the same, which the plaintiff had accepted. It is after a gap of four years that plaintiff with malafide intention is raising the issue for no reason. Defendants deny that they deducted Rs. 1,20,605.35/- sans any reason through various vouchers. They state that the vouchers are self-explanatory. That apart, this claim is stated to be time barred.
9. Defendants go on to state that on the one hand plaintiff is showing entries for the period between 24.12.2009 to 27.03.2010 for goods sent allegedly worth Rs. 1,79,416.54 and on the other hand claiming that cheque dt. 30.10.2009 (Ex.PW1/19) was not given to it and further disputing debit of two cheques dt. 13.03.2009 and 04.04.2009 and CS No. 419/2017 New CS No. 11705/2016 Page 5 of 18 claiming interest of Rs. 5,59,018.25 sans any reason. Plaintiff does not state, it is averred, as to how it calculated interest of about Rs. 9 lacs on the alleged principal sum of Rs. 5,29,190/-. It is stated that defendant no.1 was always ready and willing to make any payment that was due to the plaintiff, but it is the latter which complicated the matter sans any reason. It is further stated that defendant no.1 is always ready and willing to give 'C' forms for the goods received by it. It is denied that defendants took no steps to regularize the accounts. It is averred that there were four meetings between plaintiff's partner and officials of defendant no.1, but plaintiff remained adamant and showed no documents in support of its claims. Defendants deny receiving plaintiff's legal notice dt. 08.10.2010. Denying other averments, defendants seeks dismissal of the suit.
10. Aside from the above, defendants take the following legal objections in their written statement: - factum of registration of plaintiff firm and Sh. Anil Kumar Gupta being its partner is denied for want of knowledge; the lis is bad for mis-joinder of defendant no.2 inasmuch as defendant no.1 is itself a separate juridical person and that this Court lacks territorial jurisdiction to try the present matter as the cause of action arose wholly in Ghaziabad where the orders were given and no part of cause of action arose in Delhi.
11. Plaintiff filed its replication wherein it reiterated its averments as set out in the plaint and refuted those of the defendants as averred by them in the written statement.
12. Issues framed on 24.04.2012 are as follows: -
1. Whether the plaintiff is entitled to decree of Rs. 14,48,739.96/-
along with interest from the defendant as alleged? OPP
2. Whether the suit is bad for mis-joinder of necessary party as alleged? OPD CS No. 419/2017 New CS No. 11705/2016 Page 6 of 18
3. Whether this court has no jurisdiction as alleged? OPD
4. Whether the suit of the plaintiff is time barred as alleged? OPD
5. Relief.
13. In plaintiff's evidence, Sh. Anil Kumar Gupta examined himself as PW1. On defendants' behalf, DW1 Sh. Prem Ballabh Joshi {Manager (accounts) of defendant no.1} was examined.
14. Arguments heard. Record perused.
15. Issue-wise findings are as follows.
16. Issue no.2 - The issue is whether the present suit is bad for mis- joinder of necessary party; onus being on defendants to prove it. Defendants state that the suit is bad for mis-joinder of defendant no.2 inasmuch as defendant no.1 is itself a separate juridical person. Under Order I Rule 9, CPC a suit can never be defeated for mis-joinder of a party. It is only in case of non-joinder of a necessary party that a suit can be defeated or held to be bad. The very fact that a party may have been mis-joined will not be a ground to hold that the suit is not maintainable. In view of this legal position, this issue is answered in plaintiff's favour and against the defendants.
17. Issue no.1 - The issue is whether plaintiff is entitled to a decree of Rs. 14,48,739.96/- together with interest from the defendants; onus being on plaintiff to prove it.
18. Before proceeding further, defendants' contention vis-à-vis section 69 (2), Partnership Act, 1932 is required to be taken up. Ld. Counsel for defendants contended that plaintiff had neither proved that it was a registered partnership firm nor that Sh. Anil Kumar Gupta was shown in the Register of Firms as its partner. He urged that PW1 Sh. Anil Kumar Gupta in his evidence had merely marked, and not exhibited, the Form B CS No. 419/2017 New CS No. 11705/2016 Page 7 of 18 (Acknowledgment of Registration of Firm) as 'Mark A' and as such it was not proved that plaintiff was a registered firm. This argument lacks merit. In law there is no distinction between exhibiting or marking a document. Exhibiting or marking is merely for the purpose of identification of the document. Proof of a document, irrespective of whether it bears a mark or an exhibit, has to be as per the extant law. Decision reported as Sudhir Engineering Company vs. Nitco Roadways Ltd., 1995 II AD 189 can be referred to in this regard. Relevant would it be to mention here that under section 68 (2), Partnership Act entries relating to a partnership firm may be proved by producing certified copies of the entries. Certified copy of 'Form A' showing name and number of partners, name of plaintiff firm, its registered office etc. is on judicial record. Similarly, certified copy of Form B (Acknowledgment of Registration of Firm) of plaintiff firm is also on judicial record. Further, plaintiff led into evidence Form B. That apart, Form A and Form B are public documents within the meaning of section 74, Evidence Act. 'Form A' and 'Form B' very much reflect that plaintiff is a registered firm. 'Form A' also shows Sh. Anil Kumar Gupta to be a partner of plaintiff firm since 26.02.1992. In view therefore, it is the view of this Court that plaintiff has been successful in proving that it is a registered partnership firm and that Sh. Anil Kumar Gupta is shown as a partner in the Register of Firms.
19. We shall now take up plaintiff's claims. Plaintiff's claims that are admitted shall be taken up first: -
I) Out of the 14 invoices for which plaintiff allegedly received no payments, defendants take the stand that they did not receive the goods at serial no. 1, 2, 3, 5, 6, 7 and 8. This in effect means that defendants admit receiving goods vide invoices at serial number 4, 9, 10, 11, 12, 13 and 14. Goods admitted to have been received vide invoices at serial number 4, 9, 10, 11, 12, 13 and 14 are worth Rs. 94,649.14/- Defendant company is bound to make payment of CS No. 419/2017 New CS No. 11705/2016 Page 8 of 18 the same. During the course of final arguments, I had put to defendants' Counsel that at least for the invoices vide which goods are admitted to have been received, defendant company ought to make the payment. To this, defendants' counsel responded that plaintiff did not comply with section 69 (2), Partnership Act and as such defendant company was not bound to make payment of even the admitted amount. This response, it must be noted, is hardly appealing. This Court holds that for the admitted invoices, the defendant company has to make payment of Rs. 94,649.14/- to the plaintiff.
II) The next set of admitted claim is qua two cheques totaling of Rs.
1,15,547/-. These cheques are (i) cheque dt. 13.03.2009 for Rs. 50,000/-, and (ii) cheque dt. 04.04.2009 for Rs. 65,547/-. As per the plaintiff, the defendant company in its accounts book incorrectly showed two debit entries qua these two cheques. Plaintiff avers that it never received these two cheques. Defendants, on the other hand, state that these two cheques were initially credited to plaintiff's account in the books of defendant no.1, but subsequently, the entries were reversed and that they did not deduct Rs. 1,15,547/- qua these two cheques. Apart from this admission in the written statement, DW-1 Prem Ballabh Joshi in his cross- examination admits that plaintiff is entitled to receive Rs. 1,15,547/- qua these two cheques. He deposes, "Two cheques dated 13.03.2009 for Rs. 50,000/- and dated 04.04.2009 for Rs. 65,547/- were due against my company and the plaintiff is entitled to receive the said amount." In view of this admission on the part of the defendants in their written statement as also the admission of DW-1 in his cross-examination, plaintiff is certainly entitled to claim this amount of Rs. 1,15,547/- from the defendant company. III) The next set of admitted claim is qua cheque no. 488031 dt.
30.10.2009 (Ex. PW1/19) for Rs. 1,13,622/-. As per the plaintiff, at CS No. 419/2017 New CS No. 11705/2016 Page 9 of 18 the request of defendant company, it had not encashed this cheque. Defendants, however, aver that plaintiff did not encash the same for reasons best known to it and that in any event this was never debited in plaintiff's accounts in the books of defendant no.1. Apart from this admission in the written statement, DW1 Prem Ballabh Joshi in his cross-examination deposes, "The cheque Ex. PW1/19 was got never encashed. The plaintiff is entitled to receive the amount of Ex. PW1/19." In view of this admission on the part of the defendants in their written statement as also the admission of DW1 in his cross-examination, plaintiff is certainly entitled to claim Rs. 1,13,622/- from the defendant company.
20. Thus, the total amount of liability which stands admitted by the defendants is Rs. 3,23,818.14/-. Defendant company is bound to pay to the plaintiff the admitted liability of Rs. 3,23,818.14/-.
21. Now we come to the liabilities that are under dispute. Defendants in their written statement aver that they had not received goods vide invoices at serial no. 1, 2, 3, 5, 6, 7 and 8. Goods worth Rs. 84,767.40/- are not admitted to have been received vide these seven invoices. This claim of the plaintiff shall be bifurcated in two parts. Firstly, plaintiff's claims vide invoices at serial no. 7 and 8 (invoices no. 340 and 341) shall be taken up, and then the rest.
I) Invoices at serial no. 7 and 8 (invoices no. 340 and 341) are to the tune of Rs. 33,149.59/-. On preponderance of probabilities this court is the view that goods vide these two invoices had been supplied to the defendant company. On record there is a transporter's slip (GR no. 8451 dt. 18.02.2010), which is Ex. PW1/17. This document pertains to invoices no. 338 to 341. Document Ex. PW1/17 would reflect that all the goods pertaining to invoices no. 338 to 341 had been supplied in one carton box.
CS No. 419/2017 New CS No. 11705/2016 Page 10 of 18Out of these four invoices (338 to 341), defendants deny receiving goods vide invoices no. 340 and 341 only. PW1 in his cross- examination very much asserted that 'he had sent goods at serial no. 7 and 8 (invoices no. 340 and 341) by Ex. PW1/17 (2 pages) invoice no. 338 to 341.' The suggestion that was put to PW1 was that 'he had not sent any goods as mentioned at serial no. 7 and 8 through Ex.PW1/17 and that is why he could not produce any delivery receipt.' This suggestion in effect means that defendants admit having received goods vide invoices no. 338 and 339. It seems to be somewhat improbable that defendants would receive goods vide invoices no. 338 and 339 and not receive goods vide invoices no. 340 and 341 when they are being dispatched together in one go vide a single transporter's slip Ex. PW1/17 (GR no. 8451 dt. 18.02.2010). If it is the defendants' case that they had received goods of invoices no. 338 and 339 through a different transporter's slip which did not contain goods of invoices no. 340 and 341, then it was incumbent upon them to prove the same by leading suitable evidence including the requisite documents. Further, a copy of the transporter's slip is given to the consignee. The defendants could have shown their transporter's slip to establish that as per their transporter's slip goods of invoices no. 338 and 339 only were received. But defendants did not do the needful. This circumstance goes a long way in probablising plaintiff's stand that they had supplied the goods vide the invoices at serial No. 7 and 8 which are invoices No. 340 and 341. Plaintiff is thus entitled to claim Rs. 33,149.59/- from the defendant company for invoices at serial no. 7 and 8 (invoices no. 340 and 341).
II) This leaves us with invoices at serial no. 1, 2, 3, 5 and 6 totalling Rs. 51,617.81/-. PW-1 in his evidence asserts that goods vide these invoices too were supplied. However, DW-1 in his evidence denies that the same were supplied. Therefore, on this score, it is the word CS No. 419/2017 New CS No. 11705/2016 Page 11 of 18 of one person (PW-1) pitted against that of another (DW-1). Apart from this, there is no material whatsoever from either of the sides to substantiate their respective pleas. On record there are some challans (Ex. PW1/16). These challans do no bear the stamp/seal of the defendant company. They do bear the signature of some unknown person. It is not at all clear as to who signed the challans (Ex. PW1/16). The oral evidence on record does not clear the doubts as to who had signed the challans (Ex. PW1/16). Plaintiff is not in a position to specify as to who had signed the challans (Ex.PW1/16). The signatures on the challans (Ex. PW1/16) remain a mystery. Inasmuch as it is the plaintiff who seeks a decree for payment of money qua invoices at serial no. 1, 2, 3, 5 and 6, it was for the plaintiff to prove that goods vide these invoices were indeed supplied to defendant company. Section 101, Evidence Act mandates that whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. To sum up the plaintiff's case for recovery of Rs. 51,617.81/- qua invoices at serial No. 1, 2, 3, 5 & 6 is not proved and the same is turned down.
22. The next set of disputed claim is Rs. 1,20,605.35/-. As per the plaintiff, defendant company deducted Rs. 43,102.80/- and Rs. 77,502.55/- (totaling Rs. 1,20,605.35/-) through various general vouchers from plaintiff's dues sans any reason. Defendants, however, take the stand that these deductions were justifiably made as plaintiff had raised inflated bills and that defendant no.1 had intimated the plaintiff and the latter had then accepted. On this score on preponderance of probabilities, this Court is inclined to go with the plaintiff for the following reasons. Defendants take the stand that the bills were inflated, meaning thereby that the plaintiff was selling its goods more than the normal retail price prevailing in the market. Therefore, as to what precisely was the retail market value CS No. 419/2017 New CS No. 11705/2016 Page 12 of 18 of the goods at the point of time of its sale ought to have been established by the defendants. The defendants led no evidence to show that the bills were really inflated; that the goods sold by the plaintiff were more than the retail price prevailing in the market; or that similar goods in market could have been bought for a lesser price. This in effect would lead to another aspect and which is that if the defendants were of the supreme belief that goods were being sold at a lesser price in the market there was nothing that had stopped them from buying the same goods from somewhere else and discontinuing their business dealings with the plaintiff. As per the defendants these inflated bills were being raised ever since May 2006. The first set of debit note placed on record by the defendants pertains to May 2006. If plaintiff had been over-pricing, why did the defendants from year 2006 onwards continued to deal with it (plaintiff)? Secondly, Section 42, Sale of Goods Act, 1930, inter alia, mandates that buyer is deemed to have accepted the goods when he does any act in relation to them, which is inconsistent with the ownership of the seller, or when after lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them. Therefore, if the goods were really over-priced the defendant company ought to have intimated the plaintiff that it was rejecting them. Alternatively, it ought not have done anything qua those goods that was inconsistent with ownership of the seller. Defendant company after having already used the goods is raising the specious plea that they were over-priced. This conduct of the defendant company is certainly not in conformity with section 42, Sale of Goods Act. Thirdly, it is claimed that defendant no.1 had intimated the plaintiff about the inflated bills and the debit notes which the latter had accepted. This assertion of defendants appears to be doubtful. It is not pleaded, much less proved, as to when and by what mode was such intimation sent to the plaintiff. The self serving ipse dixit of the defendants that such intimation was sent to the plaintiff without furnishing any particulars thereof whatsoever would not suffice. That CS No. 419/2017 New CS No. 11705/2016 Page 13 of 18 apart, letter 'Mark C' dated 05.08.2010 sent by plaintiff to the defendant would in fact show that the dispute on this score was still persisting and it had not been resolved even by August, 2010. On preponderance of probabilities, this Court holds that on this aspect, plaintiff's version is more probable. Defendants' version inspires no confidence. It is thus held that plaintiff is entitled to claim the amount of Rs. 1,20,605.35/- from the defendant company. The other objection of the defendants to this claim of Rs. 1,20,605.35/- is that it is time barred. This aspect would be dealt with in the discussion on issue no. 5.
23. It is thus held that plaintiff is entitled to claim total sum of Rs. 3,23,818.14/- + Rs. 33,149.59/- + Rs. 1,20,605.35/- = Rs. 4,77,573.08/- from the defendant company, which is defendant no.1 M/s. Parishudh Machines Pvt. Ltd. Defendant company is a separate juridical person under the law. For the liability of defendant no.1, defendant no.2 who is its Director cannot be held liable. The Director of the company can be held liable for the dues of the company only under the exceptional circumstance of lifting of corporate veil in case where the defendant company is being used to perpetuate a fraud etc. which is not the case here. It is thus held that defendant no.1 M/s. Parishudh Machines Pvt. Ltd. is liable to pay Rs. 4,77,573.08/- to the plaintiff.
24. Plaintiff claimed Rs. 5,69,018.25/- as interest for late payment for the financial year 2008-2009 and Rs. 3,50,530.82/- as interest for late payment for financial year 2009-2010. Plaintiff sought to add these two amounts to the principal amount and then claimed pendente lite and future interest thereon @ 24% per annum. This is not permissible. Interest on interest cannot be awarded in view of section 3 (3) Interest Act, 1978. Plaintiff is certainly entitled to past interest, but not to interest on interest.
25. The question now remains as to what interest is to be awarded. The bills / invoices vide which the defendant company was buying the goods CS No. 419/2017 New CS No. 11705/2016 Page 14 of 18 from the plaintiff consistently show that the rate of interest chargeable was 24% per annum. That apart, the transaction in question is a commercial one. Considering these two circumstances, this Court is of the view that interest of 24% per annum would be fit and apposite. The plaintiff is being awarded this interest of 24% per annum on the principal amount of Rs. 4,77,573.08/- with effect from 10.05.2010 i.e. the last date of business dealings between the parties till final realization of the amount.
26. Issue no. 3 - The issue is whether this court has no jurisdiction; onus being on defendants to prove it. Defendants in their written statement state that this Court lacks territorial jurisdiction to try the present matter as the cause of action wholly arose in Ghaziabad where the orders were given.
27. There is no doubt that plaintiff had supplied goods to defendant company at Ghaziabad. This is clear from the several invoices that are on record. However, even if the material was delivered at Ghaziabad it is clear that goods were supplied from plaintiff's office situated at Chandani Chowk, Delhi that is within the territorial jurisdiction of this court. Further, purchase orders could not have been placed at any other place other than at plaintiff's office at Chandni Chowk, Delhi. Therefore, a part of the cause of action definitely arose at Chandani Chowk, Delhi.
28. There is one more reason to it. It is a well established principle of law that where, under a contract no place of payment is specified, the debtor must seek his creditor and therefore a suit for recovery is maintainable at the place where the creditor resides or works for gain, because a part of the cause of action arises at that place also within the contemplation of section 20 (c) of the Code of Civil Procedure. Reference in this regard can be had to decisions reported as State of Punjab vs. A.K. Raha, AIR 1964 Cal 418 (DB), Jose Paul vs. Jose, AIR 2002 Ker CS No. 419/2017 New CS No. 11705/2016 Page 15 of 18 397 (DB), Rajasthan State Electricity Board vs. M/s Dayal Wood Works, AIR 1998 Andhra Pradesh 381, Munnisa Begum vs. Noore Mohd., AIR 1965 Andhra Pradesh 231 and State of U.P. vs. Raja Ram, AIR 1966 Al1 159. In ABC Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem, AIR 1989 SC 1239 it was observed (paragraph 15 of the judgment) that part of the cause of action arises where money is expressly or impliedly payable under a contract. This dictum was followed in a Delhi High Court decision in Artee Minerals vs. Kanwal Kaur, 1998 AIHC 1422.
29. In State of Punjab vs. A.K. Raha (supra) it was held, "...........The general rule is that where no place of payment is specified in the contract either expressly or impliedly, the debtor must seek the creditor, see The Eider (1893) P 119 at p. 136, Drexel v. Drexel. (1916) 1 Ch 251 at p. 261, North Bengal, Das Brothers Zemindary Co. Ltd V. Surendera Nath Das, ILR (1957) 2 Cal 8. The obligation to pay the debt involves the obligation to find the creditor and to pay him at the place where he is when the money is payable. The application of the general rule is not excluded because the amount of debt is disputed...."
30. In Sreenivasa Pulvarising vs. Jal Glass & Chemicals, AIR 1985 Cal 74 it was held:-
" 6. ...... In a contract of the nature now under consideration performance of the contract consists not only of delivery of the goods but also of payment of the price. Therefore, cause of action for a suit on breach of such a contract would arise not only where the goods were to be delivered but also where the price would be payable on such delivery. Title to the goods would not pass and the delivery could not have been taken until the price was paid in terms of the contract. Judicial opinion on this point is uniform and is in favour of this view. Reference may be made to the case of Battapati v. Calcutta Glass and Silicate Works, AIR 1949 Mad 145, Hanuman Prasad v. Nanjappa Chetty AIR 1949 Mad 858, Republic Medico Surgical Co. v. Union of India, AIR 1980 Kant 168.CS No. 419/2017 New CS No. 11705/2016 Page 16 of 18
9. Therefore, the law continues to remain the same and in a suit arising out of a contract, a part of the cause of action arises at the place where in performance of the contract any money to which the suit relates in payable...."
31. Adverting to the facts of the present case, plaintiff's office is at Chandni Chowk, Delhi. No place of payment was specified in the contract/bills/invoices. Defendant company is liable to make payment for the goods supplied to it. Defendants made no application to the plaintiff for fixing a place of payment and section 49, Indian Contract Act cannot apply to the facts of the case. Therefore, the payment was to be made at plaintiff's office.
32. There is one more reason. All the invoices that are placed on record have a note, "Disputes if any, arising of this bill be referred to the Courts in Delhi." The bottom line is that under the present factual matrix, part of cause of action arose at Delhi and the invoices consistently say that Delhi Courts would have the jurisdiction. Therefore, under the given circumstances no other court than the Delhi Courts could have had territorial jurisdiction to decide the present matter.
33. Hence it is held that this Court has the territorial jurisdiction to try the present suit for recovery of price of goods supplied. This issue is therefore decided in plaintiff's favour and against the defendants.
34. Issue no. 4 - The issue is whether suit is time barred; onus being on defendants to prove it. All the 14 invoices are within three years of institution of the instant suit. The oldest invoices are of 24.12.2009. This suit having been filed on 10.06.2011; all the invoices are within time. The two debit entries qua the two cheque payments totaling Rs. 1,15,547/-, as mentioned in paragraph no. 3(a) of this judgment, are also within three years of institution of the instant suit as they are of March 2009 and April 2009 and thus they are saved by limitation. Further, plaintiff's claim qua cheque bearing no. 488031 dt. 30.10.2009 of Rs. 1,13,622/- (Ex. PW1/19) CS No. 419/2017 New CS No. 11705/2016 Page 17 of 18 is also within three years of institution of the instant suit and saved by limitation. Lastly, the various deductions amounting to Rs. 1,20,605.35/-, as stated in paragraph no. 3(c) of this judgment, are also within time as they are saved by Article 1 of the Schedule to Limitation Act, 1963. It is pertinent to mention here that several of the debit notes vide which defendant company made this deduction are within three years of institution of the instant suit. This issue is answered in plaintiff's favour and against the defendants by holding that all its claims are within time.
35. Relief : This suit of the plaintiff stands decreed against defendant no.1 M/s. Parishudh Machines Pvt. Ltd. in the sum of Rs. 4,77,573.08/- together with interest thereon @ 24% per annum with effect from 10.05.2010 till its full, actual and final realization. Cost of the suit is also awarded to the plaintiff. Decree sheet be drawn up. File be consigned to record room.
ANNOUNCED IN THE OPEN MURARI Digitally signed
by MURARI
COURT ON 26.04.2018 PRASAD Date: 2018.04.26
PRASAD SINGH
SINGH 15:29:58 +0530
(M.P. SINGH)
ADJ-03 (CENTRAL)
TIS HAZARI COURTS
DELHI
CS No. 419/2017
New CS No. 11705/2016 Page 18 of 18