Delhi District Court
M/S Welcome World Electrical Private ... vs M/S Nidhi Enterprise on 10 May, 2014
IN THE COURT OF Ms. POOJA AGGARWAL: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Suit no. 395/11
Unique ID no. 02406C0281982011
IN THE MATTER OF:
M/s Welcome World Electrical Private Ltd.,
47A, Second Floor,
Arjun Nagar, Safdarjung Enclave,
New Delhi110029.
Also at:
34A/1, B.M. Arjun Nagar,
Safdarjung Enclave, New Delhi.
Through its Director,
Mr. Rajeev Ranjan Kumar. ..........Plaintiff
Versus
1.M/s Nidhi Enterprise, 28/9, Nagiya Park, Shakti Nagar, New Delhi.
2. Mr. Neeraj Sharma, Proprietor, M/s Nidhi Enterprises, 28/9, Nagiya Park, Shakti Nagar, New Delhi. ........Defendants C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.1 of 7 Date of Institution : 03.11.2011 Date of Reserving of Judgment : 10.05.2014 (Forenoon) Date of Pronouncement of Judgment : 10.05.2014(Afternoon) EXPARTE JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants for recovery of Rs.2,03,752/ (Rupees Two Lakhs Three Thousand Seven Hundred Fifty Two Only) alongwith pendente lite and future interest @18% p.a. and cost of the suit.
2. As per the plaint, Sh. Rajiv Ranjan Kumar, Director of the plaintiff company having been authorized vide Board Resolution dated 12.10.2011 has instituted the present suit being competent to sign, verify and institute legal proceedings.
3. It is alleged that defendant no.2 being the sole proprietor of defendant no.1 proprietorship concern approached the plaintiff in October 2007 for supply of electrical goods and telephonically placed various purchased orders upon the plaintiff on different dates in pursuance of which goods were delivered at Hubli, Banglore as per the request and demand of the defendants and invoices for Rs.2,62,817/ were raised by the plaintiff. As per the agreed terms, the defendants were also to make C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.2 of 7 payment of Rs.46,500/ towards freight charges. It is stated that the invoices issued were received by the defendants on every occasion and also that timely payment was the essence of contract.
4. It is stated that as on 01.11.2007 a sum of Rs.1,19,317/ is due and outstanding against the defendant as per the regular books of account being maintained by the plaintiff in the ordinary course of his business with further amount of Rs.84,435/ towards interest @18% per annum as on 18.10.2011. It is also stated that a cheque bearing no.122953 dated 20.08.2009 for Rs.24,817/ was issued by the defendant in discharge of partial liability but the same was also dishonoured upon presentation.
5. It is also stated that despite repeated requests by the plaintiff and assurances by the defendants payment has not been made despite the service of the legal notice issued by the plaintiff. Hence the present suit.
6. Summons of the suit issued to the defendants were duly served by way of publication in the newspaper "The Statesman" on 06.08.2013 as the defendants did not appear before the court to defend the suit, they were proceeded ex parte vide order dated 16.11.2013.
7. To prove its case, the plaintiff led exparte plaintiff evidence and examined only one witness i.e. Sh. Rajeev Ranjan Kumar, Director of C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.3 of 7 the plaintiff company as PW1 who reiterated the contents of the plaint in his evidence by way of affidavit (Ex. PW1/A) and also relied upon the following documents:
• Board Resolution dated 12.10.2011 (Ex.PW1/A), • Tax invoice dated 01.11.2007 (Ex.PW1/B), • Copy of the ledger account (Ex.PW1/C), • Copy of cheque bearing no.122953 dated 20.08.2009 (Ex.PW1/D), • Copy of the legal notice (Ex.PW1/E).
8. I have given my thoughtful consideration to the submissions made by the Ld. counsel for the plaintiff during exparte final arguments and carefully perused the evidence on record.
9 PW1 has deposed on similar lines in Ex.PW1/1 as the plaint in respect of raising of invoice dated 01.11.2007 for Rs.2,62,487/ and the defendant agreeing to make the payment of Rs.46,500/ towards freight charges. PW1 has also deposed that the defendant have already made payment of Rs.1,90,000/ and as on 01.11.2007 a sum of Rs.1,19,317/ was outstanding. PW1 has further deposed that Rs.1,19,317/ is as per the statement of accounts of the plaintiff being maintained in the ordinary course of business. PW1 has further deposed that the cheque dated 20.08.2009 for Rs.24,817/ was given by the defendant in partial C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.4 of 7 discharge of its liability which was returned dishonoured due to "insufficient fund".
10. Since the defendants were proceeded exparte, they failed to defend their case or put forth any defence. No rebuttal has come against the claims of the plaintiff. The oral testimony of PW1 and the documents Ex.PW1/A to Ex.PW1/E have not been traversed and the testimony of PW1 goes unrebutted and unchallenged. Be that as it may even where a defendant has been proceeded exparte, the plaintiff is required to prove his own case.
11. In the case at hand, the testimony of PW1 is not consistent with the documents placed on record. While PW1 has deposed that the defendant had agreed to make payment of freight charges, no such agreement has been placed on record. Nothing has been placed on record to show that such sum was ever demanded by the plaintiff from the defendant. Also no document has been placed on record to prove the freight charges to be Rs.46,500/ as no slips/bills in respect of the same have been filed.
12. Further while PW1 has deposed that as on 01.11.2007 a sum of Rs.1,19,317/ was outstanding against the defendant however, as per C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.5 of 7 statement of account (Ex.PW1/C) only a sum of Rs.72,817/ was outstanding against the defendant till 31.03.2009. It is also noted that Ex.PW1/C reflects no entry vide which any payment was made by the defendant to the plaintiff after raising of the invoice dated 01.11.2007. Thus no explanation is put forth by the plaintiff as to how the amount of Rs.1,19,317/ alleged to be outstanding as on 01.11.2007 was reduced to Rs.72,817/ especially when it is the case of the plaintiff that Ex.PW1/D had been dishonoured.
13. Further it can not be lost sight of that while PW1 has deposed that the cheque Ex.PW1/D was issued by the defendant in partial discharge of its liability, the said cheque is not in the name of the plaintiff company in as much as the cheque is in favour of "Welcome World Engg. Services" and not in the name of the plaintiff i.e. "Welcome World Electrical Pvt. Ltd."
14. Further for reasons best known to the plaintiff it has also not placed on record the statement of accounts from 01.04.2009 till the date of filing of the suit wherein entry in respect of the cheque Ex.PW1/D dated 20.08.2009 should have been reflected. The non production of complete statement of accounts by the plaintiff necessitates drawing of C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.6 of 7 adverse presumption against the plaintiff in respect of any such cheque having been issued in favour of plaintiff by the defendant in partial discharge of its liability under invoice in question and hence the part payment remains unproved.
15. In view of the part payment not having been proved, the liability of the defendant stated to have accrued out of the invoice dated 01.11.2007 and the present suit having been filed on 03.11.2011, the present suit is barred by the law of limitation having been filed beyond the period of three years from the date of the invoice. Accordingly, the suit of the plaintiff is dismissed as being barred by limitation.
16. Decree sheet be prepared accordingly.
17. File be consigned to the Record Room after necessary compliance.
Pronounced in the open court
today i.e. 10.05.2014 (Pooja Aggarwal)
Civil Judge03(South District)
New Delhi.
C.S. No.395/11 M/s Welcome World Electrical Pvt. Ltd. Vs. M/s Nidhi Enterprises & Anr Page No.7 of 7