Delhi District Court
Sandeep Garg vs Manoj Jain on 30 September, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 1436/2023
CNR No. DLCT010154152023
DLCT010154152023
SHRI SANDEEP GARG,
Proprietor of Commercial House,
4239/1, Shakahar Bhawan, Ansari Road,
Darya Ganj, New Delhi-110002
......Plaintiff.
Vs
SHRI MANOJ JAIN
Proprietor of International Book Centre
2/19, Ground Floor, Ansari Road,
Daryaganj, New Delhi
Mobile No.9873182405
Email. [email protected]
[email protected] ... Defendant.
SUIT FOR RECOVERY OF RS.4, 55,823/-
Date of institution of suit : 27.10.2023
First Date before this court : 22.03.2024
Date of hearing of final argument : 28.09.2024
Date of Judgment : 30.09.2024
Digitally
signed by
Appearance(s) : Mr. Sushil Kumar Rai, Adv. Ld. Counsel for plaintiff.
MUKESH
MUKESH
KUMAR Shri Rakesh Gupta, Adv. Ld. Counsel for the defendant.
KUMAR GUPTA
GUPTA Date:
2024.10.03
15:31:51
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JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon plaintiff's suit for Recovery of Rs. 4,55,823/- alongwith interest @ 18% per annum pendentlite and future chargeable at monthly rests from the date of filing of suit till its realisation. The plaintiff has also prayed for costs of the suit alongwith legal expenses against the defendant.
(B) PLAINTIFF'S CASE:-
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) The plaintiff is a publishing house and doing the business under the name and style of "COMMERCIAL HOUSE" from its office at 4239/1, Shakahsar Bhawan, Ansari Road, Darya Ganj, New Delhi-
110002. The defendant is a proprietorship firm doing the business under the name and style of INTERNATIONAL BOOK CENTRE from its office at 2/9, Ground Floor, Ansari Road, Daryaganj, New Delhi.
2.2) The defendant approached the plaintiff for purchase of books and other publishing material and after considering the request of the defendant, the plaintiff firm supplied the books to the defendant from time to time. The defendant has been purchasing the books from the plaintiff and making the payment in part and sometimes not making the payment at all. The balance payment has been forwarded to the next financial year and the plaintiff continued to sell the books to the Digitally signed by MUKESH MUKESH KUMAR GUPTA defendant without clearing the previous dues..
KUMAR
GUPTA Date:
2024.10.03
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2.3) There is debit balance of Rs. Rs.37,060/- on 09.01.2019 in the ledger account of the plaintiff firm with respect to the defendant firm and the closing balance in the last day of the month on 31.01.2019 was Rs.1,82,613. Similarly, the said closing balance was further increased to Rs.10,38,602/- on 27.02.2019 and the lastly the closing balance at the end of the sales on 08.01.2020 was Rs.2,34,612/- whereafter no dealing was done with the defendant firm by the plaintiff firm.
2.4) The defendant firm in consideration of the goods received has made part payment by way of two cheques one dated 30.09.2019 vide cheque bearing No. 309742 of Rs. 1,13,788/- drawn on Yes bank and another cheque dated 11.10.2019 bearing No.309744 of Rs.94,017/- also drawn on Yes Bank. When the the cheques were presented for encashment, the same were dishonoured due to insufficient fund. However, the defendant duly availed the facility from the plaintiff firm time and again but has failed and neglected to clear their dues outstanding. In the ledger account maintained with the plaintiff and after adjusting the payments received from time to time, an amount of Rs.2,34,612/- was outstanding and payable by the defendant which the plaintiff has claimed alongwith an interest @ 18% per annum for which the plaintiff has made several requests to the defendants through, messages, telephonic calls as well as personal visits of its Authorized Representative for clearance of the outstanding amount but of no avail. The defendant, on the other hand, has tried to evade the payment on one pretext or the other. Finally, the plaintiff was compelled to issue a legal notice dated 03.05.2023 calling upon the defendant to pay the Digitally signed by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
outstanding amount with interest @ 18% per annum which was not GUPTA 2024.10.03 15:32:09 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 3 of 23 replied to by the defendant and the defendant has failed to comply the same and the ledger account of defendant, remained irregular over due drawn and became sticky. The defendant has agreed to pay the interest with a minimum at 18% per annum compounded with monthly rests. When the said outstanding amount of Rs.2,34,612/- has not been cleared by the defendant, an interest of Rs.2,21,211/- has been charged uptil 20.10.2023 and thus, the total outstanding amount including interest comes to Rs.4,55,823/- which is due and payable by the defendant.
2.5) Being disappointed by the approach of the defendant, the plaintiff has also instituted pre-mediation institution as per Section 12 A of the Commercial Court Act, 2015 where despite notice the defendant has failed to appear resulting into issuance of Non-Starter Report dated 05.10.2023 by the concerned Legal Services Authority.
2.6) Hence the present suit for recovery of Rs.4,55,823/-
alongwith interests and costs including legal expenses.
(C) DEFENDANT'S CASE:-
3. On receipt of summons for settlement of issues, the defendant contested the suit by filing a detailed Written Statement thereby taking various preliminary objections which are briefed as under:-
3.1) The suit filed by the plaintiff is time barred and the plaintiff is trying to take the benefit of Covid-19 and filed a time barred suit mentioning the judgment passed by the Hon'ble Supreme Court on the point of extension of limitation. The suit is without any cause of action in as much as the defendant is not liable to pay the alleged suit amount to Digitally signed MUKESH by MUKESH KUMAR GUPTA the plaintiff. The suit is based on forged and fabricated document. The KUMAR Date:
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suit has not been signed, verified and filed by an authorized person as no document has been filed to show that the plaintiff is a proprietorship concern. The statement of account & various invoices as alleged in the present suit are forged and fabricated and that is why the same has not been acknowledged by the defendant at any point of time and the defendant has never confirmed the balance. It has also been contended that there was no agreement, contract or liability to pay any interest, much less at the rate of 18% per annum as claimed by the plaintiff as the same is highly exorbitant and unreasonable. The defendant has prayed for dismissal of the suit with costs for aforesaid reasons and the plaintiff is a guilty of suppression/concealment of material facts .
3.2) On merits, all the allegations made in the plaint are denied as incorrect. It has been admitted to the extent that the defendant and the plaintiff was doing the business of books. The defendant has however denied that the sale and payment is a continuing process and due to said old relations with the defendant firm, sale of books, publishing material etc. was continued and payment was also received from the defendant firm in respect of purchase of the goods/books from the plaintiff firm. It has been contended that on 08.01.2020 an alleged credit note has been issued by the plaintiff only to achieve the illegal goal to file a time barred suit as the defendant has cleared all the dues against the actual supply of the books and thereafter the plaintiff has forged the invoices and the statement of account. It has also been denied that the plaintiff has ever made any call or sent any reminders to clear the outstanding dues of the MUKESH by Digitally signed MUKESH alleged amount to the defendant or there was any occasion with the KUMAR GUPTA KUMAR Date:
GUPTA 2024.10.03 15:32:24 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 5 of 23 plaintiff for the same as the defendant has no outstanding against him. It has also been contended that the plaintiff has not filed a single letter except the alleged legal notice to recover the alleged due amount from the defendant. It has finally been contended that no amount is due against the defendant and the suit is liable to be dismissed with costs.
4. A detailed replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement. It has further been reiterated that the suit is fully maintainable and it is not time barred and there is specific cause of action regarding the recovery of Rs.4,55,823/- alongwith interest and cost from the defendant. Responding to the issue of non-filing by authorised person, the plaintiff has submitted that the suit has been signed, verified and filed by a competent person namely Shri Sandeep Garg who is the proprietor of Commercial House. The plaintiff has reiterated that defendant has miserably failed to pay the legally payable debt and the suit of the plaintiff is correct and liable to be decreed as prayed for.
5. Pertinent to mention here that the defendant has raised the issue of limitation by filing an application u/o VII Rule 11 CPC. The same was duly considered by the court in the light of judgment of Hon'ble Supreme Court Babasaheb Raosaheb Kobarne & Anr. Vs. Pyrotek India Pvt. Ltd. Ors., Civil Appeal No. of 2022 @ Special Leave Petition © No. Digitally 2522/2022 and Suo Motu Writ Petition © No.3 of 2020 and since the signed by MUKESH MUKESH KUMAR KUMAR GUPTA extension of limitation was granted by Hon'ble supreme Court of India, GUPTA Date:
2024.10.03 15:32:38 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 6 of 23 the suit was held to be within limitation.
(D) CRYSTALISING THE DISPUTE :-
6. On pleadings of the parties and documents placed on record and after perusing the affidavit of admission denial of documents, and after hearing the Ld. Counsels for the parties, the following issues were framed for adjudication vide order dated 04.03.2024 of this court.
ISSUES.
(i) Whether the suit has been filed by a duly authorized person ?OPP
(ii) Whether the suit has been filed on the basis of forged and fabricated documents? (OPD)
(iii) Whether the plaintiff did not supply any books to the defendant, as claimed ? (OPD)
(iv) Whether the plaintiff is entitled to recover the suit amount from the defendant, as prayed ?OPP
(v) Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ?OPP
(vi) Relief.
(E) EVIDENCE OF PLAINTIFF.
7. Plaintiff, in support of his case has examined himself as PW1 who has reiterated the contents of the plaint on oath in his affidavit Ex.PW1/A. He got exhibited the copy of Certificate of Importer Exporter code dated 09.10.2018 as Ex.PW1/1, Invoices dated 7566 dated Digitally signed 09.01.2019 to 5587 dated 10.10.2019 as Ex.PW1/2 (colly), Credit Notes MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.10.03 GUPTA 15:32:46 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 7 of 23 (6 in numbers) as Ex.PW1/3 (colly), Non Starter Report dated 05.10.2023 as Ex.PW1/4, chque No.309742 dated 30.09.2019 of Rs.1,13,788/- as Ex.PW1/5, cheque No.309744 dated 11.10.2019 of Rs.94,017/-, Legal Notice dated 03.05.2023 as Ex.PW1/7, Original Postal Receipt as Ex.PW1/8 Certified copy of Statement of Ledger Account as Ex.PW1/9 and Statement of Calculation of Interest from 01.11.2019 to 20.10.20213 as Ex.PW1/10. He has further been deposed that the suit is correct and the defendant is liable to pay the outstanding amount alongwith interest and costs.
8. During a detailed cross-examination, Ld. Counsel for defendant has tried to puncture the testimony of PW1 on the point of the proprietorship of plaintiff firm, Statement of Account, Invoices and other aspects. PW1 during cross-examination, has deposed that the terms and conditions have also been settled and it was agreed to supply the goods on 30 days credit from the date of the bill of books supplied, however, the terms and conditions have not been executed in writing. He has deposed that there is no mention of these terms and conditions on the invoices. He has further admitted that the invoices are in the name of Commercial House. He has admitted that his signature is not there in any of the invoices or any other document filed in the court. He has also admitted that there is document on record which proved the relationship of proprietorship of the plaintiff firm. He has further deposed that the plaintiff was taking orders through order slips and then they stapled the slip alongwith the invoices but specified that the fact is not mentioned Digitally signed anywhere on the invoices. He has deposed that the plaintiff delivered the by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
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goods after receiving the order on phone from the defendant and thereafter the receiving was taken. He has admitted that on invoices at page No.41 to 45, 119, 132 and 133 Ex.PW1/2, there is no receiving from the defendant. He has admitted that the two cheques bearing No. 718327 of Rs.102942 dated 15.02.2019 and cheque No.718331 of Rs.83,581/-
dated 25.02.2019 , both drawn on Yes Bank were against the initial four invoices. He has further deposed that he has not mentioned in the plaint about the payment received against which invoices. However, he has voluntarily deposed that he has placed on record the Statement of Account Ex.PW1/9 (colly) which shows the payment against which invoices. He has further contended that he has sent statement of account to the defendant on various occasions in person and requested for release of the payment for almost two and half years/ three years but the defendant has denied and threatened the staff of non-payment. He has stated that plaintiff has not filed any police complaint in this regard. He has further deposed that they usually charge simple interest on short period and compound interest on long period and the short period means uptil one year. He has further deposed that there is no agreement/written contract regarding charging of any interest. He has further deposed that the actual due amount is Rs.2,34,612/- without interest, however, in the invoices it is not mentioned about the interest part, time of payment and the compound interest. The invoices also not mentioned that the simple interest shall be charged on for short period or compounded for long period. He has further deposed that he has not filed any cheque return memo against the Ex.PW1/5 and Ex.PW1/6. He has further deposed Digitally that he cannot tell the name of the person who has acknowledged the signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.03 15:33:06 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 9 of 23 invoices, however, voluntarily deposed that the invoices was received by the staff of the defendant with a seal of the company. He has further deposed that Ex.PW1/1 is regarding his proprietorship firm. He has also deposed that no where on Ex.PW1/1 mentioned that Shri Sandeep Garg is a proprietor of Commercial House.
9. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed on 13.09.2024.
(F) DEFENDANT'S EVIDENCE :-
10. The defendant has not led any evidence and the same was closed at the request of the Ld. Counsel for defendant vide order dated 13.09.2024 .
(G) ARGUMENTS ADDRESSED:-
11. The matter was vehemently argued by both the Ld. Counsels for a considerable time and that too with all the force at their command citing judgments of Hon'ble Supreme Court and Hon'ble High Court of Delhi.
The same are being mentioned in brief and shall be dealt with at appropriate places in the forthcoming paragraphs.
ARGUMENTS OF PLAINTIFF.
12. Ld. counsel for the plaintiff Shri Sushil Kumar Rai has vehemently argued that the nature of transactions between the parties is purely commercial and the plaintiff has supplied books/publishing material to Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA the defendant on orders placed by the defendant orally, telephonically as Date:
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well as through the staff of the defendant. He has further vehemently argued that the invoices of the books/material supplied to the defendant between the period 09.01.2019 and 10.10.2019 clearly shows the price, quantity and the books delivered to the defendant from time to time alongwith the bank details of the plaintiff which has even been acknowledged by the staff of the defendant sometimes under signature, sometimes without signatures and some other time with signatures and stamps. It has been stated that the plaintiff has been fair in his dealing in as much as the plaintiff has also given discounts on the supplied material by way of credit notes which have also part of record as Ex. PW1/3 and the statement of account Ex. PW1/9 clearly shows that the amount is outstanding. On the aspect of the technical objections taken by the defendant regarding proprietorship of plaintiff Sandeep Garg in respect of proprietorship firm commercial house, Ld. counsel has relied upon the law laid down in P.D. Verma and Co. Vs. Laxmi Builders in RFA No. 359/2005 delivered on 29.10.2014 by the Hon'ble Delhi High Court.
ARGUMENTS OF DEFENDANT:
13. Ld. counsel for the defendant Shri Rakesh Gupa, on the other hand has vehemently opposed the arguments of the Ld. Counsel for the plaintiff and has argued that the suit is being filed without any cause of action and is based on forged invoices and statement of account. He has vehemently argued that the plaint is not duly signed by an authorized representative and no connection between the plaintiff and the Digitally proprietorship firm Commercial House has been shown on record by the signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.03 15:33:21 plaintiff. He has relied upon the pronouncement of law laid down in +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 11 of 23 (2011) 4 SCC 275 titled as Milind Shripanth Chandurkar Vs. Kalim M Khan & Anr. to state that the proprietor is required to establish his connection with the proprietorship concern in order to succeed in the claim. Ld. counsel has finally argued that there has been no stipulation/agreement regarding charging of interest on delayed payments much less at the rate of 18% per annum. It has been argued that the dishonest intention of the plaintiff can be seen from the fact that it has charged compounded interest to the tune of Rs. 2,21,211/- on a principal amount of Rs. 2,34,612/- only to bring the suit within the purview of Commercial Courts Act. 2015.
(H) ANALYSIS & DETERMINATION:-
14. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record and have given a thoughtful consideration to the same. My issue-wise determination is as under:-
ISSUE NO. 1: "Whether the suit has been filed by a duly authorized person. ?OPP ".
15. The onus to prove this issue was held upon the plaintiff, though the issue arise on the basis of a preliminary objection taken by the defendant in the Written Statement that the suit has not been filed by a duly authorized person as no document has been filed (for showing) the proprietorship concern to which the plaintiff and respondent in its replication that the plaint has been signed, verified and filed by a duly Digitally competent person namely Sandeep Garg who is the proprietor of signed by MUKESH MUKESH KUMAR GUPTA KUMAR GUPTA Date:
Commercial House. If the evidence of the parties in this regard is 2024.10.03 15:33:31 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 12 of 23 carefully perused, it may be seen that the plaintiff has relied upon the certificate issued by Ministry of Commerce and Industries, Govt. of India dated 09.10.2018 showing the firm of the plaintiff namely Commercial House with PAN No. AFOPG5097G as a proprietorship concern. The plaint in this matter has been signed by the plaintiff Sandeep Garg himself with the stamp of Commercial House as a proprietor. Even the evidence led by the plaintiff Sandeep Garg with his examination as PW-1 in his affidavit Ex. PW1/A is duly signed by the plaintiff himself as proprietor of Commercial House. Though Ld. counsel for defendant during cross examination has asked a specific question that none of the invoice Ex. PW1/2 shows the plaintiff as the proprietor of Commercial House, the witness has admitted that it is not technically shown by way of documents on record the relationship of proprietorship of plaintiff firm. Ld. counsel for plaintiff has also relied upon the judgment of Hon'ble Apex Court in Milind Shidap Chandrukar Case (supra) to buttress point that the person if he is a sole proprietor of proprietorship firm is required to establish that he was proprietor of the firm concerned. While on the other hand, the plaintiff has relied upon the judgment of P.D. Sharma (supra) to say that the proprietorship firm being no separate legal entity but a creation of the proprietor himself, any reference to the proprietor or proprietorship firm can be used interchangeably. Ld. counsel for plaintiff has during the course of arguments shows a document dated 20.02.2023 issued by HDFC Bank, Hamington Road certifying Sh. Sandeep Garg as proprietor of Digitally MUKESH signed by MUKESH KUMAR Commercial House.
KUMAR GUPTA
GUPTA Date:
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16. It may be seen that it is a trite law that a proprietorship concern is not a legal entity which can sue or can be sued in its name and any reference to a proprietorship firm can be through its proprietor only and if the sole proprietorship firm is not a legal entity, a petition can be filed only by the sole proprietor in his name and on behalf of his sole proprietorship firm and not in the name of sole proprietorship firm.
Hon'ble Delhi High Court in 2005 SCC OnLine Del 1392 titled Svapan Constructions Vs. IBPL Employees Cooperative Group House Societies Ltd. & Ors. AA No. 255/1997, DOD 20.12.2005 while relying upon a Division Bench Judgment of the Hon'ble High Court in 115 (2004) DLT 471 (DB) titled Miraj Marketing Cooperation Vs. Vishakha Engineering has succinctly reiterated the aforesaid law. Though ideally the plaintiff ought to have proved the letter of HDFC Bank filed during the course of arguments by leading evidence, however, keeping in view that the objection is more of a hyper technical nature and the plaintiff has repeatedly described himself and signed as proprietor of Commercial House with its stamp, the same can be taken in the light of fact that hyper technicalities should not be allowed to defeat the purpose of justice, more so, when the Hon'ble High Court of Delhi in P.D. Verma (supra) has already held that the sole proprietorship firm and the name of sole proprietor can be used interchangeably.
17. In view of the aforesaid discussion and finding of the court, the court is of the considered view that the plaintiff has been able to at least establish on the basis of its pleadings and documents as also the affidavit Digitally MUKESH signed by MUKESH KUMAR of oral testimony when taken on the yardstick of preponderance of KUMAR GUPTA GUPTA Date:
2024.10.03 15:33:47 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 14 of 23 probabilities that it is the proprietor of M/s Commercial House. This issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUES NO. 2 and 3:
"Whether the suit has been filed on he basis of forged and fabricated documents. ?OPD ".
"Whether the plaintiff did not supply any books to the defendant, as claimed. ?OPD ".
18. The onus of proving these issues have been placed on the defendant. These issues are taken together as they are inextricably and inter-connected. The issues arise on the basis of preliminary objections in the written statement that the plaintiff has failed to supply the books to the defendant and the invoices Ex. PW1/2 are forged and fabricated. The defendant has further taken a stand that whatever supplies were made by the plaintiff to the defendant has been paid up-to-date and there is no outstanding liability of the defendant to pay any amount much less the amount as claimed in the suit. It may be seen that the defendant has failed to lead any evidence, much less in cogent form to prove the aforesaid issues and the defendant himself by way of his statement on 13.09.2024 has stated that he does not want to lead any defendant evidence. As such nothing clear and cogent in the form of evidence has come on record to prove these issues even the defendant has neither filed any documents including his own counter statement of account in support of these issues nor proved the same in accordance with law. Though the cross- examination of plaintiff by the defendant in this regard may be read for a limited purpose, however, it may be seen that while questioning the Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
invoices Ex. PW1/2, the defendant has failed to show that the receiving GUPTA 2024.10.03 15:33:55 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 15 of 23 and signatures on these invoices with the stamp of the defendant is actually not that of the defendant's representative/staff. Since the defendant has questioned the same to be forged, it was under a legal obligation to prove the same by bringing either his own stamp or witness to prove that the invoices are actually forged or fabricated which it has utterly failed. The defendant has disputed the liability by questioning the statement of account Ex. PW1/9 as forged and fabricated but has failed to file his statement of account, more so, when the defendant has not denied either the relationship or the commercial transactions with the plaintiff. The defendant has simply deposed that whatever books were supplied by the defendant were actually paid for without proving the same. Thus, in the absence of any clear & cogent evidence in this regard, the averments made by the defendant in the written statement becomes nothing but bald assertions. Accordingly, on the basis of the aforesaid discussion and findings of the court and taken on the yardstick of preponderance of probabilities, issues no. 2 and 3 are decided against the defendant and in favour of the plaintiff.
ISSUES NO.4: "Whether the plaintiff is entitled to recover the suit amount from the defendant, as claimed?OPP
19. The onus of proving this issue was upon the plaintiff and since this issue pertains to the entitlement of the plaintiff to the recovery of Rs.4,55,823/-, the relief claimed in the instant suit, the same is pivotal to the entire controversy. It may be seen that plaintiff has claimed recovery Digitally of an amount of Rs.4,55,823/- ( Rs.2,34,612/- as cost of books articles + signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
Rs.2,21,211/- as interest ) as outstanding against the defendant for supply GUPTA 2024.10.03 15:34:02 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 16 of 23 of goods (books/ articles) to the defendant and raised the invoices bearing No. 597 to 5587 Ex.PW1/2 (colly) between 09.01.2019 to 10.10.2019 for a total sum of Rs. 2,34,612/- after adjustment of payments made by the defendant from time to time. The same has also been duly proved by PW1 in the witness box and entries in the Ledger Accounts were also being maintained by the plaintiff which has also been exhibited during the deposition of PW1 as Ex.PW1/9. The credit notes bearing No. 911, 1094, 53, 354, 541 and 867 dated 24.01.2019, 18.03.2019, 27.04.2019, 29.07.2019 and 21.09.2019 respectively have been proved on record as Ex.PW1/3 which reflect that the plaintiff has given discounts on the book articles to the defendant and the defendant has not denied the same by leading its evidence.
20. Though the defendant has tried to deny its liability by stating that the plaintiff has fabricated the invoices but even the same appears to be sham as defendant has always acknowledged these invoices by making an endorsement alongwith its stamp as reflected in Ex.PW1/2 (colly). The defendant has failed to lead any evidence to this effect or even sufficiently controvert the evidence of the plaintiff which has come on record.
21. The testimony of PW1 Shri Sandeep Garg the proprietor of the plaintiff company has remained unbreached and unrebutted during the evidence in so far as the supply of books articles to the defendant vide Digitally signed by MUKESH various bills/invoices between the period 09.01.2019 to 10.10.2019 MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.03 Ex.PW1/2(colly) is concerned. The Ledger Account Ex.PW1/9 (Colly) 15:34:10 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 17 of 23 for the period 01.01.2019 to 21.10.2023 shows the sale entries made to the defendant alongwith the payment made by the defendant from time to time through cheques from his bank account maintained in Yes Bank Ltd. The ledger account Ex.PW1/9 (colly) clearly shows that the last payment was made by the defendant to the plaintiff on 11.12.2019 through cheque bearing No. 253368 for a sum of Rs.57,805/- drawn on the same Yes Bank Ltd. account of the defendant and the aforesaid cheque was also honoured. The cheques bearing No. 309744 and 309744 for a sum of Rs.1,13,788/- and Rs.94,017/- were dishonoured for insufficiency of funds. Theses cheques have also been filed on record and duly proved as Ex.PW1/5 and Ex.PW1/6. Incidentally, the invoice bills Ex.PW1/2 (colly) clearly show the name of the defendant firm on each bill with the address of the defendant has been mentioned, which according to the testimony of PW1, is the address where supplies were made. The Ledger Account Ex.PW1/9 showing an outstanding amount of Rs.2,34,612/- towards these bills (Ex.PW1/2 (colly)) and are in consonance with each other. There has been no refutation by the defendant by way of an established evidence that he has not received the books/material supplied by it. Though the defendant has tried to deny its liability by stating in its written statement that the plaintiff has filed the invoice but has not supplied the goods to the defendant against the invoices. A stand has also been taken by the defendant that it has always acknowledged the receiving the goods from the plaintiff by making an endorsement alongwith its stamp. However it may be seen that the Digitally signed by defendant has failed to lead any evidence to this effect much less, to MUKESH MUKESH KUMAR KUMAR controvert the evidence of the plaintiff which has come on record. The GUPTA Date:
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defendant has failed to controvert the documents of PW1 coupled with the cogent and categoric testimony of aforesaid PW1 and even failed to file any document in support of his defence. There is not even single document legally proved which could suggest that stand taken by the defendant is correct. Even otherwise, it is a settled preposition of law that in case one party raise his statement of account which the other party intends to dispute, the dispute must be clear and categoric to the extent that a counter statement of account may be filed by the party objecting. Admittedly, the same has not been done in the instant case.
22. Adverting to the Legal Demand Notice dated 03.05.2023 Ex. PW1/7, the same has been sent by the plaintiff through registered Speed Post, Receipts of which got proved on record as Ex.PW1/8 (colly). The legal notice was sent to the defendant through registered post and the postal receipt has been proved as Ex.PW1/8 and the defendant has to reply the same within 30 days but he has not replied to. The defendants have failed to pay the amount despite such demand or refute the same by issuing a counter legal notice to the same. It is settled proposition of law that once a legal notice has been received by defendant, he is required to respond thereto, failure of which, will lead to an adverse presumptions. Reliance placed on 1980 RLR (Note) 44 titled Kalu Ram Vs. Sita Ram.
23. The Statement of Account Ex. PW1/9 clearly shows that regular supply and receipt of goods supplied by the plaintiff to the defendant Digitally signed by MUKESH from to time. Though, the defendant has also made certain assertions MUKESH KUMAR KUMAR GUPTA GUPTA Date: regarding non-supply of goods, non-receipt of bills, and loss of their 2024.10.03 15:34:28 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 19 of 23 credibility in the market but no cogent or legally admissible evidence has been shown. If the defendant was aggrieved on account of non-supply of goods, he has to write or communicate the same to the plaintiff. If the goods supplied by the plaintiff have been used by the defendant without raising any dispute, he is legally bound to pay which he has failed to pay as has come on record by way of clear and cogent evidence of PW1 coupled with the documents.
24. Admittedly, the payment of the outstanding has not been made by the defendant to the plaintiff and the pre-institution mediation, non- starter report dated 05.10.2023 Ex.PW1/4 is also proved on record. The defendant has failed to put any substantial dent in the testimony of PWs .
25. Having discussed the aforesaid, the testimony of PW1 and the documents discussed above one by one in seritum and the fact that the defendant has failed to prove any documentary or oral evidence to even controvert the aforesaid so as to the question of the very liability, this court is of the considered opinion that plaintiff has been able to make out his case of entitlement of recovery at least to the extent of preponderance of probabilities.
26. Thus, the plaintiff shall be entitled to recovery of Rs.2,34,612/-, being the principal amount outstanding for supplies made against the defendant. In so far as the amount of Rs.2,21,211/- which is shown as Digitally signed by interest for the period 01.10.2019 to 20.10.2023 compounded at the rate MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.03 of 18% per annum with monthly rests, neither there is any stipulation in 15:34:36 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 20 of 23 the invoices Ex.PW1/2 (colly) which shows the place of terms and conditions as blank nor any agreement to charge the same at such exorbitant rate. In the absence of the aforesaid and the same being exorbitant, the court is not inclined to grant the same and the plaintiff has utterly failed to prove the same on the yardstick of preponderance of probabilities. This issue is, accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO.3: "Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ? OPP"
27. The onus of proving this issue was also held upon the plaintiff who has claimed an interest @ 18% per annum on the outstanding amount pendentlite and future. There is nothing on record to suggest that any such stipulation was ever made or proposed between the parties. In the absence of any agreement to show the same, the court shall be left with no option but to advert to the provisions of section 34 of CPC and provisions of Interest Act since the amount is outstanding. However, Hon'ble Supreme court in a number of judgments reported as Pt. Munshi Ram @ Associates (P) Lt. Vs. DDA, 2010 SCC Online Delhi 2444, Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Digitally Bhagya Jala Nigam Ltd. Vs. G. Harischandra, 2007 (2) SCC 720 & signed by MUKESH MUKESH KUMAR KUMAR GUPTA State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd. (2009) GUPTA Date:
2024.10.03 15:34:43 +0530 CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 21 of 23 3 Arb. LR 140 (SC) has repeatedly mandated that courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. Under the facts and circumstances of the case, keeping in view the nature of transactions of the case and the aforesaid settled law, court is of the considered opinion that interest of justice would be met, if an interest @ 6% per annum is granted to the plaintiff on the outstanding amount of Rs.2,34,612/- uptil 08.01.2020 i.e. the date of last entry till the date of its realisation. This issue is decided accordingly.
(I) CONCLUSION:-
ISSUE No.4: Relief.
28. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement for recovery of amount claimed, against the defendant. The suit of the plaintiff is, accordingly decreed against the defendant for a sum of Rs. 2,34,612/-
The plaintiff shall also entitled to a simple interest @ 6% per annum on such amount w.e.f. 08.01.2020 i.e. the date of last entry till its realization.
29. In the specific facts and circumstances of the case, the plaintiff shall also be entitled to the costs of the suit throughout.
Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA
30. Decree sheet be drawn accordingly.
GUPTA Date:
2024.10.03
15:34:54
+0530
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31. File be consigned to record room after due completion.
Digitally signedMUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.10.03 15:35:01 +0530 (MUKESH KUMAR GUPTA) DJ (COMMERCIAL COURT)-07 CENTRAL/DELHI(PK) PRONOUNCED IN THE OPEN COURT ON 30.09.2024.
CERTIFICATE Certified that the judgment contains 23 pages and each page has been digitally signed by me. The judgment was pronounced on 30.09.2024 in open court and is being checked and uploaded on 03.10.2024. MUKESH by Digitally signed MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.10.03 15:35:08 +0530 (MUKESH KUMAR GUPTA) DJ (COMMERCIAL COURT)-07 CENTRAL/DELHI(PK) CS (Comm.) No. 1436/2023 Sandeep Garg Vs. Manoj Jain . Page no. 23 of 23