Delhi District Court
Sh. Jagdish Mittar vs Sh. Sanjay Nagpal on 16 April, 2018
IN THE COURT OF SH. RAJINDER SINGH
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
Suit. No. 11962/16
In the matter of:
Sh. Jagdish Mittar
S/o Late Sh. Durga Dass Sharma
Prop. of M/s. Classic Col Industries,
K55/9, Industrial Area,
Hastsal Village, Uttam Nagar,
New Delhi - 110059.
........Plaintiff
Versus
Sh. Sanjay Nagpal
Prop. of M/s. Azure Press Services,
Through its Proprietor,
A28, Naraina Industrial Area,
PhaseI, New Delhi.
.......Defendant
Date of filing of the Suit : 16.11.2009
Date of reserving order : 25.01.2018*
Date of pronouncement : 16.04.2018
*On 22.02.2018, no order could be passed as the undersigned was giving dictation
in other matters bearing CS No. 9591/16 titled as "Sayeed Ahmed Vs. Laique
Ahmed, CS. No. 624/17 titled as "SBI Vs. Raman Kapoor" & CS. No. 308/17 titled
as "Laiq Ahmed Vs. Sayeed Ahmed". On 16.03.2018, no time was left.
J U D G M E N T
Brief Facts:
1. Plaintiff's case:
1.1 The plaintiff being the sole proprietor of M/s. Classic Col Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 1/14 Industries (hereinafter referred to as the plaintiff's firm) has filed the suit for recovery of Rs. 1,55,872/ along with interest (rate of interest not specified in the prayer) from the date of filing of the suit till realization of the amount.
1.2 Defendant is the sole proprietor of M/s. Azure Press Services (hereinafter referred to as the defendant's firm) and he is liable for day to day business activities of this firm.
1.3 Plaintiff supplied adhesive to the defendant through the bills as mentioned in para no. 4 of the plaint. These bills are w.e.f 17.12.2008 till 18.04.2009 for a total sum of Rs. 1,60,791/. All the items sent through these bills were duly received and acknowledged by the defendants. As per the ledger of the plaintiff, a sum of Rs. 1,55,872/ is due by the plaintiff towards the defendant.
1.4 Despite repeated requests, defendant has failed to pay the aforementioned amount. On 18.09.2009, plaintiff sent his representative to the defendant. The defendant refused to pay the said amount.
1.5 Legal notice dated 22.09.2009 demanding the aforementioned Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 2/14
amount within 15 days was sent by the plaintiff to the defendant. Despite service of the notice, defendant as not paid the said amount.
2. Defendant's case:
2.1 It is stated that no payment whatsoever is due by the plaintiff to the defendant. All the legitimate payment after due deduction on account of tax, rejected / faulty goods had already been made to the plaintiff. No such goods as alleged in para no. 4 of the suit were ever delivered to the defendant. Goods are always delivered against delivery challan, due to this, there is no reason to give any acknowledgment on the bills.
2.2 The name of the firm M/s. Azure Press Services appearing in the memo of parties is different from the firm whose name is appearing on the bills, to whom the plaintiff allegedly supplied the goods. The bills have been issued in the name of M/s. Azure Pack Services whereas the suit has been instituted against M/s. Azure Press Services. There is no order by the defendant for the supply of any goods from the plaintiff. The signatures appearing on the acknowledgements are not of the defendant. Further, defendant has denied the case of the plaintiff.
Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 3/14
3. Replication filed on behalf of the plaintiff to the written statement of the defendant.
4. ISSUES:
4.1 Vide order dated 24.11.2011, Ld. Predecessor framed the following issues:
1. Whether the plaintiff is entitled to recovery of the suit amount as prayed for ? OPP
2. If issue no. 1 is answered in affirmative, whether the plaintiff is entitled to any interest, if yes, at what rate and for what period ? OPP
3. Whether the suit is without any cause of action against the present defendant ? OPD
4. Relief.
5. Evidence:
5.1 Plaintiff's Evidence:
5.2 Plaintiff examined himself as PW1. He tendered his evidence by way of affidavit Ex. P1. He has relied upon the following Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 4/14 documents i.e Ex. PW1/1 to Ex. PW1/10 are the bills of supply of articles to the defendant. Ex. PW1/11 is the ledger, Ex. PW1/12 is legal notice, Ex. PW/13 & Ex. PW1/13A are post and UPC receipt and Ex.
PW1/14 is registered A.D Card.
5.3 Plaintiff examined Sh. Amit Tiwari, Manager, Indian Overseas Bank as PW2. He is authorized by the Senior Manager of Indian Overseas Bank vide letter dated 20.11.2013. Copy of authorization letter is Ex. PW2/A. He brought the summoned record i.e Statement of accounts of M/s. Classic Col Industries from 11.04.2008 to 30.04.2009 and the copies of the same is Ex. PW2/B (running into 14 pages). 5.4 Plaintiff examined Sh. Sandeep Kerketta, Officer in Oriental Bank of Commerce as PW3. He brought the Statement of accounts of M/s. Azure Press Services vide account no. 01794011000317 for the period from 01.04.2008 to 30.04.2009 and the copies of the same is Ex. PW3/A (Collectively).
5.5 Plaintiff examined Sh. Rama Kant Sharma, Clerk in Bank of Baroda as PW4. He brought the Statement of accounts of M/s. Azure Press Services vide account no. 07920200000824 for the period from Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 5/14 01.03.2009 to 31.03.2009 and the copies of the same is Ex. PW4/A (Collectively; running into 05 pages).
5.6 PW1 & PW2 were duly cross examined by the Ld. Counsel for the defendant. Despite opportunity, PW3 & PW4 were not cross examined by the Ld. Counsel for the defendant.
5.7 Vide statement dated 08.05.2014, plaintiff closed PE. 5.8 PW1 was allowed to be recalled. He was recalled and cross examined on 08.01.2013.
6. Defendant's Evidence:
6.1 Despite repeated opportunities, defendant did not examine any DWs.
6.2 Vide order dated 30.03.2017, D.E was closed.
7. Final arguments heard.
7.1 It was submitted on behalf of the plaintff that Ex. PW1/1 to Ex. PW1/10 are the bills of supply of articles to the defendant. On these bills instead of writing the firm name of the defendant as M/s. Azure Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 6/14 Press Services, the name M/s. Azure Pack was mentioned. However, TIN number and the address as mentioned on these bills is that of the defendant's firm. It shows that the articles mentioned in these bills were sent to the defendant. Ex. PW3/A is the bank statement of the defendant. Ex. PW1/11 is the ledger of defendant, which shows the outstanding amount as Rs. 1,55,872/. Ex. PW1/DX1 is regarding the returning of the surplus material. Defendant placed the order over telephone, due to this reason, the name of the defendant's firm was wrongly heard as M/s. Azure Pack Services instead of M/s. Azure Press Services. In the ledger Ex. PW1/11 entry marked as no. 4 dated 11.04.2008 corresponds to the entry in bank statement Ex. PW3/A. There are total eight such entries corresponding to the bank statement (in this regard written synopsis clarifying the corresponding entries in the ledger Ex. PW1/11 and bank statement Ex. PW1/4 & Ex. PW4/A has been filed). These entries shows that there were some business relations between the plaintiff and the defendant. Ex. PW1/11 is not disputed. Ex. PW1/DX1 is also not disputed. In the bank statement "CC" stands for Classic Col.
Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 7/14 7.2 Written synopsis filed by the plaintiff perused. 7.3 Liberty was granted to the defendant to file written submissions
within 15 days with advance copy to the plaintiff. There is nothing on record to suggest that the defendant has filed any written submissions. COURT'S FINDINGS AND REASONING: Now, issuewise findings are as under:
8. ISSUE NO.1: Whether the plaintiff is entitled to recovery of the suit amount, as prayed for ? OPP The onus to prove this issue is upon plaintiff.
8.1 Ex. PW1/1 to Ex. PW1/10 are the bills upon which the plaintiff is relying to prove that he supplied articles to the defendant. On these bills the name of the defendant's firm is mentioned as "M/s. Azure Pack Services". In the plaint, name of the defendant's firm is mentioned as "M/s. Azure Press Services". In this regard, Ld. Counsel for the plaintiff submitted that the defendant placed the order with the plaintiff over telephone, due to this reason, the name of the defendant's firm could not be heard properly and instead of writing the name "M/s. Azure Press Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 8/14 Services" the name "M/s. Azure Pack Services" was mentioned on the bills. It was further submitted that the address A8, Industrial Area, Phase II, Naraina,, New Delhi is mentioned on these bills is that of the defendant's firm. In the plaint in para no. 2, the address of the defendant's firm is mentioned as A8, Naraina Industrial Area, PhaseI, New Delhi. In the memo of parties, the address of the defendant's firm is mentioned as A28, Naraina Industrial Area, PhaseI, New Delhi. Ex. PW1/14 is the A.D Card, this mentioned the address of the defendant's firm as A28, Naraina Industrial Area, PhaseI, New Delhi. In the legal notice Ex. PW1/12, the address of the defendant's firm is mentioned as A28, PhaseI, Naraina Industrial Area, New Delhi. The wrong mentioning of address of the defendant's firm on the bills Ex. PW1/1 to Ex. PW1/10 is not explained by the plaintiff.
8.2 On these bills Ex. PW1/1 to Ex. PW1/10, TIN number of the consignee is also mentioned. The same is 07790252771. The plaintiff has not produced any evidence to show that this TIN number is owned by the defendant's firm.
8.3 Defendant has examined PW2, he produced statement of Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 9/14
account of the plaintiff's firm for the period 11.04.2008 to 30.04.2009 (covering the period of bills as mentioned in para no. 4 of the plaint). The same is Ex. PW2/B. Plaintiff also examined PW3. He produced the statement of accounts of defendant's firm having account no. 0794011000317 for the period 01.04.2008 to 30.04.2009. Certified copies of the same are Ex. PW3/A (collectively). This statement also covers the period of bills as mentioned in para no. 4 of the plaint. Plaintiff also examined PW4. He produced statement of account of the defendant's firm vide account number 07920200000824 for the period 01.03.2009 to 31.03.2009. Certified copies of the same are Ex. PW4/A. The ledger account of the defendant's firm maintained by the plaintiff is Ex. PW1/11. This ledger account is for the period 01.04.2008 to 31.03.2009 and 01.04.2009 to 14.09.2009. It shows the closing balance of the defendant's firm as Rs. 1,55,872/.
8.4 Ld. Counsel for the plaintiff submitted that in the ledger account Ex. PW1/11 there are entries showing outstanding amount towards the defendant. Some entries are correspondingly reflected in the bank statement Ex. PW3/A of the defendant's firm. I have seen Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 10/14 Ex. PW3/A, this is the bank statement of defendant's firm. It is for the period 01.04.2008 to 30.04.2008. It was submitted that in this statement the letter CC under the head "particular" stands for Classic Col i.e the plaintiff's firm.
8.5 In the written synopsis, plaintiff has mentioned the corresponding entries in the ledger Ex. PW1/11. The statements of account Ex. PW3/A and Ex. PW4/A, both perused. In the statement of account Ex. PW3/A entries mentioned at page no. 36, 27 (no mentioned in the synopsis), 22, 2 & 3 correspond to the entries in Ex. PW1/11. It shows that the plaintiff was maintaining accounts of his transactions with the defendant. As per the ledger account, an amount of Rs. 1,55,872/ i.e the suit amount is shown outstanding against the defendant. 8.6 In the statement of account Ex. PW4/A, the address of the defendant is mentioned as A8, Naraina Industrial Area, PhaseI, New Delhi. In the statement of account Ex. PW3/A, the address of the defendant is mentioned as A28, Naraina Industrial Area, PhaseI, New Delhi. These documents were produced in evidence in the presence of the defendant. The defendant was required to clarify why he gave two Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 11/14 separate addresses in his own bank accounts.
8.7 In view of the above submissions of the plaintiff regarding the mentioning of word "Pack" instead of "Press" in the documents Ex. PW 1/11 to Ex. PW1/10 appears true and reasonable. The address of the defendant's firm as mentioned in these bills correspond to the address of the defendant's firm as mentioned in the statement Ex. PW4/A. Prima facie the bills Ex. PW1/1 to Ex. PW1/10 produced by the plaintiff are reliable. There is no reason for the plaintiff to forge these bills. In view of the address of the defendant's firm as mentioned on the bills Ex. PW1/1 to Ex. PW1/10 and the statement of accounts Ex. PW4/A of the defendant's firm, the address of the defendant's firm is clear. 8.8 By preponderance of probabilities, it can be safely deduced that the plaintiff supplied the articles / goods of value mentioned in the bills Ex. PW1/1 to Ex. PW1/10 to the defendant. Accordingly, issue no. 1 is decided in favour of the plaintiff and against the defendant.
9. ISSUE NO. 2: If issue no. 1 is answered in affirmative, whether the plaintiff is entitled to any interest, if yes, at what rate Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 12/14 and for what period ? OPP The onus to prove this issue is upon plaintiff.
9.1 In the plaint, plaintiff has not specified the rate of interest which he claimed. In the bill Ex. PW1/1 to Ex. PW1/10 in clause no. 4 "Condition for sale" it is stated that 21% interest will be charged if the bill is not paid on due date but it is not clarified whether it is per month or per annum. The transactions between the parties are commercial transactions as such interest @ 21% per annum is granted in favour of the plaintiff and against the defendant on the amount of Rs. 1,55,872/ from the date of filing of the suit till realization of the amount. 9.2 Accordingly, issue no. 7 is decided in favour of the plaintiff and against the defendant.
10. ISSUE NO. 3: Whether the suit is without any cause of action against the present defendant ? OPD The onus to prove this issue is upon defendant.
10.1 No evidence has been led on behalf of the defendant to prove this issue. No arguments were addressed in this regard. Even otherwise, Judgment Suit No. 11962/16 Jagdish Mittar Vs. Sanjay Nagpal Page..... 13/14 in view of the findings of this court on issue no. 1 & 2, issue no. 3 is decided in favour of the plaintiff and against the defendant.
11. ISSUE NO. 9: Relief.
11.1 In view of the findings on the above issues, the suit of the plaintiff is decreed for a sum of Rs. 1,55,872/ along with interest @ 21% per annum from the date of filing of the suit till realization of the amount.
12. No order as to cost.
13. Decree sheet be prepared accordingly after filing of deficient court fee.
14. File be consigned to record room after due compliance.
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 16.04.2018 SCJ/RC(WEST)/ DELHI
16.04.2018
Judgment Suit No. 11962/16
Jagdish Mittar Vs. Sanjay Nagpal Page..... 14/14