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M/S. A.P.J. Enterprises vs Sh. Sripal Mittal on 12 September, 2013

             IN THE COURT OF SURINDER KUMAR SHARMA
            ADDITIONAL DISTRICT JUDGE­ EAST DISTRICT 
                 KARKARDOOMA COURTS, DELHI

                          Civil Suit No. 535/10


M/s. A.P.J.  Enterprises
Through its Proprietor
Sh. Ajay Mittal
P­100, Shankar Nagar Extension 
Gali No. 6, Delhi - 110051.

                                                         ... Plaintiff
                
                          Vs.


Sh. Sripal Mittal
Proprietor  of Shiv Poly Pack
A­43, G.T. Karnal Road
Industrial Area, Delhi - 110033.
                                                   .... Defendant

Date of filing of Suit                       :  02.08.2010
Date of Arguments                            :  03.09.2013
Date of Judgment                             :  12.09.2013

                      
JUDGMENT

The present suit for recovery of Rs. 9,03,479/­ has been filed by the plaintiff against the defendant.

The brief facts of the case are that the plaintiff is a manufacturer of LDPE Granules and the defendant is a Civil Suit No. 535/10 Page 1/13 purchaser of the same for its supply and trading. The plaintiff had supplied LDPE Granules to defendant as per order placed by defendant through bills/invoices worth Rs. 11,85,634/­. In order to discharge his liability, defendant issued three cheques for Rs. Four lacs in favour of plaintiff. Out of which only one cheque of Rs. One lac was honoured and the remaining two cheques were dishonored. Defendant further to discharge his liability handed over twelve cheques for Rs. 2,68,800/­ in favour of plaintiff having been issued by one Sh. Praveen Kumar Garg, the party of defendant. The said twelve cheques were also dishonored. A criminal case against the defendant under N.I. Act was filed by the plaintiff. As the defendant had paid Rs. One lac, the balance amount of Rs. 10,85,634/­ was due to be paid by the defendant with interest @ 12% per annum thereon amounting to Rs. 1,62,845/­ totaling to Rs. 12,48,479/­. In the criminal case u/s 138 N.I. Act, the defendant made payment of Rs. Three Lacs after entering into a compromise and thereafter, the defendant also made a payment of Rs. 45,000/­ vide a demand draft 25.09.2008. Therefore, after deducting the amount of Rs. 3,45,000/­ the defendant is liable to pay Rs. 9,03,479/­ to the plaintiff. The plaintiff approached and requested the defendant number of times to pay the outstanding amount including interest, but the defendant did not pay the same. Ultimately, plaintiff Civil Suit No. 535/10 Page 2/13 sent legal demand notice dated 04.01.2010 through his counsel to the defendant, thereby requesting to make the payment. Despite receipt of said notice, defendant did not pay the aforesaid amount. Plaintiff has prayed for passing a decree for recovery of amount of Rs. 9,03,479/­ along with interest @ 12% per annum and cost of the suit.

Defendant contested the suit and filed written statement, wherein, he has taken the preliminary objections that the suit of the plaintiff is not maintainable for the lack of cause of action against defendant. The defendant alleged that the plaintiff did not supply the material as alleged. The defendant submitted that at the time of claiming the bills, the settlement was arrived that Rs. Four Lacs were to be paid by the defendant. Out of this amount Rs. One lac has already been paid through cheque. He has also submitted that the plaintiff had agreed to compromise the complaint filed by the plaintiff before Ld. M.M. on payment of remaining Rs. Three lacs, but the plaintiff wriggled out from the same.

On merits, defendant has denied purchase of any LPDE Granules from plaintiff. He has denied that the plaintiff had supplied LPDE Granules worth Rs. 11,85,634/­. It is averred that defendant at the relevant time had cleared the bills and amount for payments were settled at Rs. Four lacs. It is also denied that in order to discharge his liability, Civil Suit No. 535/10 Page 3/13 defendant had handed over twelve cheques to plaintiff for a sum of Rs. 2,68,000/­ issued by Sh. Praveen Kumar Garg, one of the party to defendant. Other averments of the claim petition were also denied. It is prayed that the suit of the plaintiff be dismissed.

The plaintiff filed replication to the written statement of defendant, wherein, plaintiff reaffirmed the averments made in the plaint and denied the preliminary objections raised by the defendant in its written statement.

On the pleading of the parties, following issues were framed by my Ld. Predecessor on 07.10.2010:­

1. Whether the suit of the plaintiff is not maintainable for want of cause of action? OPD

2. Whether the parties have entered into some sort of agreement by which the defendant agreed to pay Rs. Three lacs to fulfill agreement and the plaintiff agreed to withdraw his complaint u/s 138 of N.I. Act. If so, to what effect? OPD

3. Whether the plaintiff has supplied the material LDPE Granules to the defendant worth Rs. 11,85,634/­? OPP.

4. Whether the plaintiff is entitled to recover the amount of Rs. 12,48,479/­? OPP.

This issue was re­casted by my Ld. Predecessor vide his order dated 12.01.2011 as under:­ Whether the plaintiff is entitled to recover the Civil Suit No. 535/10 Page 4/13 amount of Rs. 9,03,479/­ from the defendant after adjusting of the amount received by the plaintiff in view of the compromise entered before the Ld. Magistrate? OPP.

5. Whether the plaintiff is entitled to interest. If so, at what rate and for what period? OPP.

6. Relief.

An application u/s 340 Cr.P.C. was filed by the plaintiff. Following issues on the application u/s 340 Cr.P.C. were also framed on 22.09.2011 by my Ld. Predecessor :­

1. Whether the defendant is liable to be prosecuted u/s 340 Cr.P.C.? OPP/Applicant

2. Relief.

Thereafter, in order to prove its case, plaintiff examined two witnesses. Sh. Ajay Mittal Proprietor of plaintiff firm was examined as PW­1. He filed his affidavit Ex. PW1/X. He also relied upon documents Ex. PW1/1 to PW1/53.

Sh. Deepak Jain Hand Writing Expert was examined as PW­2. He filed his affidavit Ex. PW2/A. He also relied upon documents Ex.PW2/B report dated 22.03.2012, Ex. PW2/C (colly.) photograph and Ex. PW2/D compact disc.

Defendant examined Sh. Sripal Mittal himself as DW­1 and filed his affidavit Ex. DW1/1. He also relied upon document Ex. DW1/A. Civil Suit No. 535/10 Page 5/13 I have heard the Ld. Counsels for the parties and perused the record. I have also gone through the written submissions filed on behalf of the parties.

My finding on the issues are as under:­ ISSUE NO.1 The onus to prove this issue is on the defendant. In the affidavit of defendant Ex. DW1/1, defendant has deposed that he has no liability towards plaintiff beyond Rs. Four lacs, as per settlement admitted by the plaintiff in his notices dated 04.01.2010 and 05.02.2009.

The case of the defendant is that the suit is without any cause of action. From the WS of the defendant and the affidavit of the defendant filed in the evidence, it is clear that there is some dispute between the parties regarding the payment of money and the defendant himself has admitted that he has liability to pay certain amount to the plaintiff. Therefore, under these circumstances, it cannot be said that the suit is without any cause of action.

The issue is decided accordingly against the defendant and in favour of the plaintiff.

The onus to prove this issue is also upon the defendant.

The case of the defendant is that the matter was settled between him and the plaintiff in a case filed by the plaintiff against him u/s 138 N.I. Act. The contention of the defendant is that the matter was settled for an amount of Rs. Four Lacs and out of the said amount of Rs. One Lac was paid to the plaintiff. The perusal of the file shows that there is no such settlement arrived at between the parties to the effect that all the disputes between the parties were settled in the said case under section 138 N.I. Act. It is also settled law that proceedings u/s 138 N.I. Act are different. The proceedings u/s 138 N.I. Act are for the prosecution of the accused, whereas, the civil suit is meant for the recovery of the amount. Even if for the sake of arguments, it is presumed that the matter was settled between the parties in the case u/s 138 N.I. Act, this has no bearing on this suit in the absence of any thing coming on record in writing that the civil suit shall also be compromised in view of the compromise in the case u/s 138 N.I. Act. Hence, the compromise, if any, arrived at between the parties in a case u/s 138 N.I. Act, has no bearing or effect on this case.

In view of the above discussion, the issue is decided against the defendant and in favour of plaintiff.

The onus to prove this issue is on the plaintiff.

In order to prove this issue, the plaintiff has examined himself as PW­1 and filed his affidavit Ex. PW1/X. In his affidavit, he has stated that the plaintiff firm is a manufacturer of LDPE Granules. The plaintiff firm is dealing in the sale and supply of LDPE Granules. The defendant is a purchaser of LDPE Granules. The plaintiff and defendant were having business terms. The plaintiff supplied LDPE Granules worth Rs. 11,85,634/­ vide the following bills:­ Sl. No. Bill No. Date Amount

1. 63 24.07.2008 Rs. 2,19,718/­

2. 64 24.07.2008 Rs. 2,85,279/­

3. 67 10.08.2008 Rs.92,711/­

4. 68 20.08.2008 Rs.90,450/­

5. 69 29.08.2008 Rs.1,13,063/­

6. 70 31.08.2008 Rs.1,79,644/­

7. 72 05.09.2008 Rs.1,34,369/­

8. 74 14.09.2008 Rs.80,400/­ Total Rs. 11,85,634/­ The case of the defendant is that he did not have any liability towards the plaintiff beyond Rs. Four lacs. The case of the defendant is that as per the settlement arrived at between the parties which is evident from the notices dated 04.01.2010 and 05.02.2009 issued by the plaintiff to the defendant. The case of the defendant is that this fact is also admitted by the plaintiff in the complaint u/s 138 N.I. Act pending in the court of Ld. M.M. The case of the defendant Civil Suit No. 535/10 Page 8/13 is that the plaintiff has alleged that some Sh. Praveen Kumar Garg has issued cheques in favour of the plaintiff on behalf of the defendant. As per the version of defendant, he never issued any cheque to the plaintiff through Sh. Praveen Kumar Garg. The bills raised by the plaintiff are wrong and false.

As discussed above, the plaintiff has proved the bills/invoices Ex. PW1/1 to PW1/8 by which the material was supplied to the defendant. The case of the defendant is that he has no liability towards the plaintiff beyond Rs. Four lacs. The defendant has not produced any stock register or accounts book etc. to show that he did not receive the material worth Rs. 11,85,634/­ or that he has made all the payment for the material received from the plaintiff and only payment of Rs. Four lacs was due. On the other hand, the plaintiff has proved the bills/invoices vide which the material worth Rs. 11,85,634/­ was supplied to defendant.

Therefore, in my view, the plaintiff has proved that he has supplied the LDPE Granules to the defendant worth Rs. 11,85,634/­.

The onus to prove this issue is on the plaintiff. In issue no. 3 above, it has been held that the plaintiff has supplied the material to the defendant worth Rs. 11,85,634/­. The case of the defendant is that the Civil Suit No. 535/10 Page 9/13 settlement was arrived at between the parties for a sum of Rs. Four Lacs. Out of which Rs. One Lac was paid to the plaintiff. As held in the issue no. 2, the defendant has failed to prove the said settlement and the said settlement, if any, has no bearing or effect on this case. The defendant in his written statement (para 3 reply on merits) has submitted that at the time of claiming the bills, the settlement was arrived at for Rs. Four Lacs. The defendant has not produced the bills etc. from which it can be gathered that the plaintiff has not supplied the material to the defendant worth Rs. 11,85,634/­. The details of which is as under:­ Sl. No. Bill No. Date Amount

1. 63 24.07.2008 Rs.2,19,718/­

2. 64 24.07.2008 Rs. 2,85,279/­

3. 67 10.08.2008 Rs.92,711/­

4. 68 20.08.2008 Rs.90,450/­

5. 69 29.08.2008 Rs.1,13,063/­

6. 70 31.08.2008 Rs.1,79,644/­

7. 72 05.09.2008 Rs.1,34,369/­

8. 74 14.09.2008 Rs.80,400/­ Total Rs. 11,85,634/­ The case of the plaintiff as per amended plaint is that after the payment of Rs. 3,45,000/­ by the defendant, an amount of Rs. 9,03,479/­ is due towards the defendant. In Civil Suit No. 535/10 Page 10/13 the prayer clause also the plaintiff has prayed for decree of Rs. 9,03,479/­.

In view of the above discussion, it is held that the plaintiff is entitled to recovery of amount of Rs. 9,03,479/­ from the defendant.

The issue is decided accordingly.

The onus to prove this issue is upon the plaintiff. In his affidavit Ex. PW1/X, the plaintiff has stated that he is entitled to interest @ 12% per annum. The defendant has not cross­examined the plaintiff on this point. Therefore, the testimony of the plaintiff being unchallenged on the point of rate of interest, has to be believed. Therefore, the plaintiff is entitled to the interest @ 12% per annum from the defendant.

The issue is decided accordingly.

ISSUE NO. 6 (Relief) In view of the findings on issues above, the suit of the plaintiff is decreed with cost for recovery of Rs. 9,03,479/­ along with interest @ 12% per annum from the date of filing the suit till the recovery of decretal amount.

Decree sheet be prepared accordingly.

APPLICATION U/S 340 CR.P.C. ISSUE NO. 1 The onus to prove this issue is on the applicant/plaintiff.

In order to prove this issue, the plaintiff has examined PW­2 Sh. Deepak Jain Hand Writing Expert. He has filed his affidavit Ex. PW2/A. His report is Ex. PW2/B. My Ld. Predecessor vide his order dated 22.09.2011 has ordered that the plaintiff shall lead the evidence on the application u/s 340 Cr.P.C. after the conclusion of the evidence by both the parties.

The object of Section 340 Cr.P.C. is to ascertain whether any offence affecting administration of justice in relation to any document produced or given in evidence in court during the time when the document or evidence was in custodia legis and whether it was also expedient in the interest of justice to take such action as required u/s 340 Cr.P.C.

It is important to note that though the plaintiff has examined the handwriting expert in support of this issue, but he has not filed his affidavit to substantiate this issue. In the absence of any evidence of the plaintiff that the offence u/s 340 Cr.P.C. was committed when the document or evidence was in custodia legis. Hence in my view, the plaintiff has Civil Suit No. 535/10 Page 12/13 failed to prove this issue.

The issue is decided against the plaintiff.

ISSUE NO. 2 (Relief) In view of the finding of issue no. 1 above, the applicant/plaintiff is not entitled to any relief qua the application u/s 340 Cr.P.C.

The application u/s 340 Cr.P.C. stands disposed off accordingly.

File be consigned to Record Room.

Announced in Open Court on 12.09.2013 (Surinder Kumar Sharma) Addl. District Judge, East Karkardooma Courts, Delhi.