Delhi District Court
Sh. Pradeep Kumar vs M/S. Sanvi Weave Tex India Ltd on 4 January, 2013
IN THE COURT OF SH. ANIL KUMAR SISODIA, ADJ6 (WEST),
TIS HAZARI COURT, DELHI.
CIVIL SUIT NO. 652 OF 2012
Sh. Pradeep Kumar
S/o Sh. Shivji Mehto
Prop. M/s. Pradeep Kumar
At. 74, Pocket03,
Paschim Puri, New Delhi. ............ PLAINTIFF
Versus
M/s. Sanvi Weave Tex India Ltd.
Through Sh. Sanjay Gupta &
Vijay Gupta (Director)
At : 445/47, EPIP, Kundli,
Sonipat, Haryana. ........... DEFENDANT
Date of institution : 12.04.2010
Order reserved on : 04.01.2013
Date of Decision : 04.01.2013
SUIT FOR RECOVERY OF RS.12,93,719/
EXPARTE JUDGMENT :
1.The plaintiff has filed the present suit for recovery of Rs.12,93,719/ against the defendant. Initially, the present suit was filed u/O XXXVII CPC but the same was ordered to be treated as Suit No.652/12 Page: 1/7 an ordinary suit vide orders dated 13.04.2010 of Ld. Predecessor of this Court.
2. The facts of the case are that the plaintiff is in the business of home furnishing handicraft items with the name of M/s. Pradeep Kumar and obtaining contracts/ orders from export houses. In the year 2007, the defendant approached the plaintiff and ordered the plaintiff for supplying the furnished handmade curtain (Pardey), Cushion Covers and table cloth, etc. The plaintiff delivered the same at the Panipat godown of the defendant. It has been submitted that as the defendant used to make the payments of the bills of plaintiff subsequently, the plaintiff submitted bills to the accounts office of the defendant for recovery of the amount due. The defendant made a payment of Rs.6,25,000/ through cheques but the outstanding amount of Rs.12,93,719/ was still pending. In spite of repeated requests of plaintiff, the defendant did not make the payment of outstanding amount to the plaintiff. The plaintiff sent a legal notice on the defendant on 30.01.2010 but the same was returned undelivered with the remarks 'unclaimed'. Legal notice was also sent at the residence address of the defendant but the same was returned back with back with the remark that there is no such addressee residing on the address. Finding no other Suit No.652/12 Page: 2/7 alternative, the plaintiff filed the present suit.
3. Summons of the suit were served on the defendant. Defendant has contested the suit by filing the Written Statement wherein it has been stated that the suit of the plaintiff is not maintainable and liable to be dismissed u/O 1 Rule 10(2) CPC for misjoinder of parties; the plaintiff has not approached the Court with clean hands and has concealed true material facts from the Court; the suit of the plaintiff is without any cause of action and is liable to be rejected u/O 7 Rule 11 CPC; the present suit is gross abuse and misuse of process of law and the present suit is false, fictitious, baseless and malafide and it has been filed only with a view to harass the defendant and to defeat and delay the payment of rightful dues of the defendant.
On merits, the contents of the plaint have been denied. It has been submitted that the defendant never approached the plaintiff for supplying furnished handmade curtains, cushion covers or table clothes, etc. It has further been submitted that the defendant is an exporter of home furnishings and different parties approaches it for different purposes. In the year 2007, the plaintiff represented to the defendant that it deals in export surplus and purchase export surpluses in auction from the custom authorities and also from Suit No.652/12 Page: 3/7 private parties and resells it to the companies who are exporters and also represented to the defendant that it will arrange good quality of export surpluses for the defendant who can export them. Since it would be an export surplus, it would cost less to the defendant and the defendant would be benefited from it. Believing the plaintiff, the defendant had given advance amount in favour of the plaintiff through cheque and paid various amount on different occasions to the plaintiff, however, the plaintiff failed to fulfill its promise of supplying export to the defendant. It has been denied that the plaintiff had at any point of time ever delivered any goods either at Panipat, Sonipat or Kundli or at any offices of the defendant. It has been submitted that the defendant had never placed any purchase orders with the plaintiff for supplying any goods. It has been denied that the defendant had made any payments or had issued the cheques against the said forged and fabricated bills. It has been denied any amount is either due or payable by the defendant to the plaintiff. It has been submitted by the defendant that as per the Statement of Accounts duly maintained by the defendant company in its regular course of business, it is the defendant who had advanced a total sum of Rs.11.50 Lacs in favour of the plaintiff and the plaintiff is liable to Suit No.652/12 Page: 4/7 return the said amount with interest pendentelite and future. It has been submitted that no notice has ever been served upon the defendant. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. The defendant had also filed counter claim which was dismissed vide order dated 30.07.2010.
5. Vide order dated 08.09.2010, the defendants no. 3 and 4 were struck off from the memo of parties.
6. The plaintiff filed replication denying the contents of the amended WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
7. Vide order dated 08.11.2012, the defendant was proceeded ex parte.
8. On 08.09.2010, Ld. Predecessor of this court framed the following issues :
1) Whether the plaintiff is entitled to a decree for the sum of Rs.11,74,985/ or any part thereof? OPP (the amount of Rs.11,74,985/ has been wrongly mentioned whereas, the correct amount is Rs.12,93,719/).
2) Relief.
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9. In support of his case, plaintiff has examined his Manager, Sh.
Ram Chander as PW1 who has filed his examinationinchief by way of affidavit as Ex.PW1/A and has reiterated the facts stated in the plaint. He has also proved on record his authority letter as Ex.PW1/1 and the original bills vide which the goods were supplied as Exs.PW1/2 to PW1/12. The witness has also proved on record the legal notice as Ex.PW1/13 and the postal receipts as Exs.PW1/14 and PW1/15 and the regd. envelopes as Exs.PW 1/16 and PW1/17 and thereafter, the PE was closed.
10. I have heard Ld. Counsel for the plaintiff and have perused the record carefully. My findings on the issues are as under : ISSUE NO.1 :
11. The onus of proving this issue was on the plaintiff. The plaintiff has examined PW1 Sh. Ram Chander who has deposed and corroborated the facts stated in the plaint. The witness has also proved on record his Authority Letter as Ex.PW1/1 and the bills as Exs.PW1/2 to PW1/12. He has testified that he is fully conversant with the facts of the case and is competent to depose as a witness. He also testified that the defendant made a payment of Rs.6.25 Lacs out of a total sum of Rs.19,18,719/ through cheques but the remaining payment was not made by them despite repeated Suit No.652/12 Page: 6/7 requests. He also proved that legal notice Ex.PW1/13 and the returned envelopes as Exs.PW1/16 and PW1/17 which were received back with the report of refusal. The testimony of PW1 has remained unrebutted and unassailed and there is no reason to disbelieve the same. The suit filed by the plaintiff is well within the period of limitation and therefore, the plaintiff has discharged the onus cast on him. Accordingly, the issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2 (RELIEF) :
12. In view of my findings on the aforesaid issue, the suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled to recover a sum of Rs.12,93,719/ from the defendant. The plaintiff shall also be entitled to simple interest on the aforesaid amount @ 11% p.a. from the date of filing of the suit till its realization. The plaintiff shall also be entitled to the cost of the suit. Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities.
Announced in the open Court Dated : 4th January, 2013. (ANIL KUMAR SISODIA) ADJ06 (West District) Tis Hazari Courts, Delhi.
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