Delhi District Court
M/S. Evershine Marble Company vs M/S. Ad Roy Interior Exterior Pvt. Ltd on 25 July, 2020
IN THE COURT OF SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03 (WEST)
TIS HAZARI COURTS, DELHI
Suit No. 611210/2016
In the matter of :
M/s. Evershine Marble Company
Through its Proprietor
Sh. Surender Kumar Aggarwal
D208, Manasarover Garden,
Ring Road, New Delhi - 110 015.
.....Plaintiff
Versus
1.M/s. Ad Roy Interior Exterior Pvt. Ltd.
15/13, Chinar Park, Orchid House, Rajahat, Ground Floor, P.O Hatiarha, Kokata.
West Bengal 700 157.
2. Smt. Sunita Roy Director M/s. Ad Roy Interior Exterior Pvt. Ltd.
Rabinder Pally, Madhymgram, 23, Barasat, North 24 Paragrass Kokata, West Bengal 743 202.
3. Sh. Mrinal Roy Director M/s. Ad Roy Interior Exterior Pvt. Ltd.
Rabinder Pally, Madhymgram, Kokata, West Bengal 743 202.
4. M/s. Reniya Enterprises Itanagar, District Papum Pare, Arunachal Pradesh - 791 111.
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5. Sh. Sudeb Chakroborty S/o Sh. Renu Sarkar 367, Debi Garh Lane, Near Sanskrit Sangha Club, Madhymgram, Kokata, West Bengal 700 129.
6. Sh. Takaram Pario (MLA) S/o Late Sh. Takaram Mangha The Chief Minister Secretariat, Chief Minister Bunglaw, Niti Vihar, Itanagar, Arunachal Pradesh - 791 111.
..... Defendants.
Date of institution : 07.12.2015
Date of decision : 25.07.2020
SUIT FOR RECOVERY OF RS. 11,82,238/
1. The plaintiff is a sole proprietorship firm and has filed the present suit against the defendants for recovery of Rs. 11,82,238/. The suit is filed through proprietor Sh. Surender Kumar Aggarwal.
2. The case of the plaintiff as per plaint is that plaintiff is a proprietorship firm having its registered office at D208, Mansarovar Garden, Ring Road, New Delhi - 110 015. On behalf of the plaintiff, the suit has been signed, verified and instituted by Sh. Surendra Kumar Aggarwal, being proprietor of the plaintiff firm. The plaintiff is firm engaged in the business of trading different kinds of marble slabs/random slabs/stones/granites and other allied products and the defendants had purchased the random slabs/marble /stones as per their choice from the CS: 611210/2016 Evershine Marble Company Vs. AdRoy Interior Exterior 2 of 9 plaintiff's office/showroom situated at Delhi on different occasions. Defendant no. 1 to 5 are engaged in the business of construction, designing and civil construction, etc. The defendant no. 2 and 3 are the Directors of the defendant no. 1 and the defendant no. 4 and 5 are involved in managing the business of defendant no. 1 and 3 and looking after the day to day affairs thereof including purchase of material, financial affairs, making payments etc. The defendant no. 1 to 5 were managing one of the projects at Itanagar, Assam for the defendant no. 6 and accordingly, the defendants approached the plaintiff at Delhi office and random Slabs/Marbles/Stones for this project were purchased by the defendants from the Delhi office of the plaintiff through number of sale bills. The plaintiff was told by the defendant no. 1 to 5 to issue sales bill in favour of the defendant no. 4 c/o of defendant no. 1 and it was also told to the plaintiff that the delivery of goods should be made directly at the premises of defendant no. 6 i.e. construction site at Opposite B. B. Plaza, Ita Nagar, Arunachal Pradesh. It was assured by the defendants that payments through cheque or cash mode would be made by the defendant no. 1 to 5 and further that if there is any delay in payments of the bills, the representative of the defendant no. 6 in presence of all the defendants specifically stated and promised to the plaintiff that he will make the payments to the plaintiff. The representative of defendant no. 1 to 6 selected the material in Delhi, which was purchased by the defendants and further transported by the defendants themselves at the site construction of defendant no. 6 in Ita Nagar. The details of the bills are as under: S. No. Bill No. Date Amount in Rs.
1 R2480 28.12.2012 2,95,284/ 2 R2481 28.12.2012 5,48,756/ 3 R2496 18.01.2013 96,365/ 4 R2511 20.02.2013 3,39,868/ 5 R2518 25.02.2013 6,17,324/ Total 18,97,597/ CS: 611210/2016 Evershine Marble Company Vs. AdRoy Interior Exterior 3 of 9
3. The plaintiff issued the above said sales invoice/bills to the defendants and charged Central Sales Tax @ 2.00 % of the sale bill/invoice value instead of full tax of @ 12.50 % as the defendants had agreed/promised to provide the "C' Form for Sales Bill. However, C Form qua only Invoice Nos. R2480 & R2481 both dated 28.12.2012 were handed over to the plaintiff at Delhi Office and rest of the C Forms were withheld by the defendants. The transportation services were hired from Delhi by the defendants themselves and the transportation/delivery of the goods were also arranged and managed by the defendants themselves for sending the material to defendant no. 6 at his construction site in Ita Nagar. The goods were transported through transporters M/s. Rajasthan Kashmir Transport Service having their office at Sanjay Gandhi Transport Nagar, Delhi vide GR No. 779 dated 28.12.2012, 780 dated 28.12.2012 and 784 dated 18.01.2013, M/s. Sonepat Guwahati Road Carriers, Delhi vide GR No. 4111 dated 20.02.2013 and M/s. Avon Tempo Transport, Delhi vide GR No. 217 dated 25.12.2013. On request of defendants, plaintiff had also paid Rs. 1,60,000/ to M/s. Sonepat Guwahati Road Carrier towards an assurance of reimbursement of the same.
4. The bills of the plaintiff as mentioned above were accepted for payment by the defendants and accordingly, the defendant no. 1 to 3 had made some payments to the plaintiff through NEFT/RTGS and cheque and also deposited some cash in the plaintiffs bank account maintained at Delhi. Defendant no. 5 on behalf of other defendants also signed and issued six account payee cheques from the account no. 30250465321 in favour of the plaintiff firm along with debit memo dated 21.10.2013 for Rs. 6,25,000/, the details of which are as under: CS: 611210/2016 Evershine Marble Company Vs. AdRoy Interior Exterior 4 of 9 S. No. Cheque Date Amount Issuing Reasons No. (In Rs.) Bank for Dishonour 1 403086 01.11.2013 1,00,000/ State Bank Insufficient of India, Fund Madhymgr am, Sodepur Road, Kolkata 700 129.
2 403087 01.12.2013 1,00,000/ do Payment Stop 3 403088 01.01.2014 1,00,000/ do Payment Stop 4 403090 01.03.2014 1,00,000/ do Payment Stop 5 403091 01.04.2014 1,00,000/ do Payment Stop 6 403092 01.02.2014 1,25,000/ do Unsigned Cheque Total 6,25,000/
5. The plaintiff was shocked and surprised when the plaintiff presented the cheques within their validity but the same were returned unpaid several times on the grounds as tabled above. The plaintiff firm has been maintaining a regular and true statement of account of the defendants in his books of accounts from time to time, as per which, defendant no. 2 and 3 had made part payments of Rs. 15,80,000/ to the plaintiff on behalf of defendant no. 1. Plaintiff has levied interest @ 24% p.a. On the total outstanding amount as agreed between the parties and mentioned on the sale bills. Differential Sales Tax @ 10.50% has also been levied on the invoices against which C Form were not provided, plaintiff is also seeking recovery of Rs. 2,40,000/ which he had paid to the transporters on behalf of the defendants. The total outstanding amount due from the defendant till 20.11.2015 as per the books of accounts come to Rs. 11,82,238/.
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6. Plaintiff requested all the defendants number of times through various modes for making the payment of outstanding amount and also to send the remaining C Forms as promised / agreed by the defendants at the time of purchasing of goods. But none of the defendants paid anything to the plaintiff towards undisputed outstanding amount nor sent the CForms. The defendants have been delaying the payments on one pretext or another and till date nothing has been paid to the plaintiff by the defendants towards the outstanding amount. Hence, the present suit is filed for recovery of outstanding dues of Rs. 11,82,238/ along with pendente lite & future interest @ 24% p.a.
7. Summons of the suit were sent to the defendants, who were served by way of publication on 18.07.2019. Despite service, none appeared on behalf of any of the defendants nor any written statement was filed. Hence, vide order dated 03.10.2019, they were proceeded exparte.
8. In the exparte evidence, the plaintiff has examined only one witness Shri Surender Kumar Agarwal, Proprietor of the plaintiff firm as PW1, who filed his affidavit Ex.PW1/A in evidence reiterating and stating on Oath the averments made in the plaint. He relied upon following documents:
(i) Mark A : Copy of the Registeration Certificate of plaintiff firm.
(ii) Ex. PW1/2 : Proprietorship Confirmation letter dated 03.04.2014 issued by the plaintiff's bank i. e. Kotak Mahindra Bank, New Delhi.
(iii) Ex. PW1/3 : CForms issue by defendants.
(iv) Ex. PW1/4 : Sales Bill No. R2480 dated 28.12.2012.
(v) Ex. PW1/5 : Sales Bill No. R2481 dated 28.12.2012.
(vi) Ex. PW1/6 : Sales Bill No. R2496 dated 18.01.2013.
(vii) Ex. PW1/7 : Sales Bill No. R2511 dated 20.02.2013.
(viii) Ex. PW1/8 : Sales Bill No. R2518 dated 25.02.2013.
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(ix) Ex. PW1/9 : GR No. 779 dated 28.12.2012.
(x) Ex. PW1/10 : GR No. 780 dated 28.12.2012.
(xi) Ex. PW1/11 : GR No. 784 dated 18.01.2013.
(xii) Ex. PW1/12 : GR No. 4111 dated 20.02.2013.
(xiii) Ex. PW1/13 : GR No. 217 dated 25.02.2013.
(xiv) Ex. PW1/14 (Colly.): Statement of Ledger Account for M/s.
Rajasthan Kashmir Transport Services & M/s. Sonepat Guwahati Road Carriers and Bank Statement of plaintiff firm.
(xv) Ex. PW1/15 (Colly.) : Cash Vouchers of the plaintiff firm regarding payments made by the plaintiff towards transportation charges.
(xvi) Ex. PW1/16 to Ex. PW1/21 : Original 6 cheques issued by defendant no.
5 towards part payments.
(xvii) Ex. PW1/22to Ex.PW1/26 : Original 5 Cheque Returning Memos. (xviii) Ex.PW1/27 : Debit Note dated 21.10.2013 for Rs.
6,25,000/.
(xix) Ex. PW1/28 to Ex. PW1/29 : Orders dated 13.08.2014 & 26.11.2014 passed in Sec 138 N.I. Act cases filed by the plaintiff.
(xx) Ex. PW1/30 : Statement of account for the period for the period 01.04.2012 to 20.11.2015.
(xxi) Ex. PW1/31 : Certificate U/s 65B of Indian Evidence Act in support of the statement of account.
9. The evidence of the plaintiff has remained uncontroverted and unrebutted as none appeared on behalf of the defendants to cross examine PW1. No evidence is led by the defendants.
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10. Exparte final arguments have been heard. Record carefully perused.
11. The plaintiff has supported his case by stepping into the witness box and examining himself as PW1 and proving the documents Mark A and Ex. PW1/1 to Ex.PW1/31. The Sale Bills issued in the name of defendant no. 4 is Ex.PW1/3. The transport receipts are Ex.PW1/9 to Ex.PW1/13. Ledger accounts and cash vouchers showing payments made by plaintiff towards transport charges are Ex.PW1/14 and Ex.PW1/15. The cheques issued by defendant no. 5 towards part payment are Ex.PW1/16 to Ex.PW1/21. Debit Note issued by defendant no. 1 in respect of dishonour of cheques issued by defendant no. 5 is Ex.PW1/27. Statement of account is Ex.PW1/30 which is duly supported by Certificate U/s 65B Indian Evidence Act (Ex.PW1/31). The Statement of Account Ex. PW1/30 shows an outstanding balance of Rs. 11,82,238.22/. As per the Statement of Account last payment of Rs. 20,000/ has been received from the defendants on 03.01.2015. It is categorically deposed that goods were supplied to the site of defendant no. 6 and all the defendant no. 1 to 5 had given assurances for the payment. Part payments & debit notes have also been issued by defendant no. 1 and 5.
12. The defendants have preferred not to appear before the court to dispute the contentions of the plaintiff. I find no reason to doubt the uncontroverted and unrebutted testimony of PW1 which is duly supported by documents.
13. The suit is well within the period of limitation from the receipt of last payment i. e. 03.01.2015. The goods have been supplied from the office of the plaintiff at Mansarover Garden, Delhi, which falls within the territorial jurisdiction of this court.
14. Considering the overall evidence on record which is unrebutted CS: 611210/2016 Evershine Marble Company Vs. AdRoy Interior Exterior 8 of 9 and uncontroverted and the documents relied upon by the plaintiff, the suit of the plaintiff is decreed and following reliefs are granted in favour of the plaintiff and against the defendants who shall be jointly and severally liable:
1) Decree for a sum of Rs. 11,82,238/
(Eleven Lacs Eighty Two Thousand Two
Hundred Thirty Eight only) (being the principle amount).
2) Being a commercial transaction pendentelite and future interest @ 10% (simple interest) on the principle amount of Rs.
11,82,238/ is not awarded from 11.12.2018 till the realization of the amount. Interest is awarded for the period w.e.f. 07.12.2015 ( i.e. the date of filing of the suit) as the suit was dismissed for non prosecution on 19.07.2017 as the plaintiff was not taking steps for service of defendants. Accordingly, interest has been awarded from the date of revival of the suit i. e. 11.12. 2018.
3) Costs of the suit.
Relief:
15. Decree sheet be prepared accordingly.
16. File be consigned to record room after necessary compliance.
Announced today during Covid 19 Lockdown through WeBex in the presence of Ld. Counsel for the plaintiff. Digitally signed by SHIVALI SHIVALI SHARMA SHARMA Date: 2020.07.25 14:33:52 +0530 (SHIVALI SHARMA) ADJ03/WEST/THC/DELHI/25.07.2020 CS: 611210/2016 Evershine Marble Company Vs. AdRoy Interior Exterior 9 of 9