Delhi District Court
M/S Capital Print Process Pvt. Ltd vs M/S Krbl Limited on 25 January, 2014
IN THE COURT OF Ms. POOJA GUPTA: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Civil Suit no.407/10
Unique ID no. 02406C0515132010
IN THE MATTER OF:
M/s Capital Print Process Pvt. Ltd.,
F23, Okhla Industrial Area, PhaseI,
New Delhi110020.
Now Office At 14/8, Gurukul Industrial
Area, Sarai Khawaja, Faridabad.
Through Authorized Representative
Sh. Pradeep Sood. ......Plaintiff
Versus
M/s KRBL Limited,
A1, Pamposh Enclave,
New Delhi110048 (Sealed).
Now at 81B, Central Avenue,
Sanik Farms (as per Written Statement).
Registered office at 5190,
Lahori Gate, Delhi110006. .....Defendant
DATE OF INSTITUTION : 26.10.2009
DATE OF RESERVING THE ORDER : 13.01.2014
DATE OF DECISION : 25.01.2014
Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 1 of 18
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of Rs.1,95,700/ (Rs. One Lakh Ninety Five Thousand Seven Hundred Only) alongwith interest @ 18% per annum and cost of the suit. Facts averred as per the plaint
2. The plaintiff is a company duly registered under the Companies Act and is represented by its Director Sh. Pradeep Sood. An order dated 14.08.2006 was accepted by the plaintiff whereby the defendant had placed an order for printing of annual report with envelops. The payment was to be released after one week of completion of the work order which was completed on 02.11.2006.
3. The plaintiff completed the work as per the order and delivered the material to the satisfaction of the defendant vide various delivery challans and also raised two invoices. The material was accepted by the defendant without any objection and subsequently the invoices were raised. Despite demands, the defendant did not make the payment of Rs.1,35,122/ including Rs.5,200/ towards invoice No. 65 dated 01.11.2006 and Rs.1,29,922/ towards invoice No. 58 dated 19.10.2006. Hence the present suit.
Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 2 of 18 Facts as averred in the written statement
4. Preliminary objections have been raised by the defendant in respect of the suit being without any cause of action; of the plaintiff not approaching the Court with clean hands as the goods supplied were defective and of inferior quality; of the suit being barred by limitation and the plaint not having been signed and verified by a duly competent and authorized person.
5. On merits, it has been stated that the order was placed as per the order dated 14.08.2006 but the material supplied by the plaintiff was of low quality not conforming to the specifications mentioned in the purchase order and was never delivered on time. Even the size of the annual books and envelopes were not as per the purchase order. It is stated that the quality of printing and paper was essential component of the order. It has been further stated that only 100 annual report books were supplied to the plaintiff on 18.10.2006 and rest of the material was supplied thereafter.
6. It has been further averred that vide letter dated 21.10.2006 the defendant had objected to the inferior quality of the annual reports supplied by the plaintiff and vide this letter the defendant gave one Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 3 of 18 week's time from 21.10.2006 to 28.10.2006 to the plaintiff to lift the low quality material and supplied fresh material as per the specifications. It has been further stated that after the receipt of this letter the plaintiff supplied 1,400 fresh envelopes on 01.11.2006 for annual reports but failed to supply the fresh copies of the annual reports as per the specifications without which the envelopes were not of any value to the defendant. It has been further stated that on 03.11.2006 the defendant wrote another letter requesting the plaintiff to supply fresh copies of the annual report as per specifications but the plaintiff did not concede to the request. The defendant through the said letter also requested the plaintiff to lift its earlier supplied stock from the premises of the defendant within 15 days from 03.11.2006 but the plaintiff did not do so and upon the sealing of its office the defendant shifted from Pamposh Enclave to Sanik Farms disposing off the unwanted reports as scrap. It has been denied that any demand was made by the plaintiff for Rs.1,35,122/. Rest of the averments have been denied on merits.
7. No replication was filed by the plaintiff.
Issues
8. From the pleadings of parties, the following issues were Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 4 of 18 framed by the Ld. predecessor of this court on 16.02.2012: (1) Whether the suit of the plaintiff is liable to be dismissed as the plaintiff has not approached the court with clean hands?OPD (2) Whether the goods supplied by the plaintiff were defective and of inferior quality? OPD (3) Whether the suit of the plaintiff is barred by the limitation ? OPD (4) Whether the suit of the plaintiff has not been filed by duly competent and authorized person?OPD (5) Whether the plaintiff is entitled to decree of recovery for a sum of Rs.1,95,700/ with interest at the rate of 18%? OPP (6) Relief, if any.
Evidence
9. To prove its case, the plaintiff examined Sh. Pradeep Sood, Director of the plaintiff company as PW1who tendered his evidence by way of affidavit(Ex.PW1/A) on similar lines as the plaint and also relied upon the documents i.e. extracts of minutes of meeting stated to be authorization letter (Ex.PW1/1), delivery challan No.108 dated 01.11.2006 (Ex.PW1/2), Delivery challan No.097 dated 18.10.2006 (Ex.PW1/3), Delivery challan No.098 dated 19.10.2006 (Ex.PW1/4), Delivery challan No.100 also dated 19.10.2006 (Ex.PW1/5), tax invoice no.065 dated 01.11.2006 (Ex.PW1/6), tax invoice No.058 dated 19.10.2006 Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 5 of 18 (Ex.PW1/7), photocopy of purchase order dated 14.08.2006 (Mark PW1/8). The witness was duly crossexamined on behalf of the defendant and during crossexamination was confronted with the photocopy of the letter dated 21.10.2006 (Mark PW1/D1) and photocopy of letter dated 03.11.2006 (Mark PW1/D2).
10. To prove its defence the defendant examined Sh. Vibhu Pada Padhi, Manager Corporate Affairs as DW1 who tendered his evidence by way of affidavit (Ex.DW1/A) deposing on the lines of the written statement. DW1 was duly cross examined by the plaintiff. DW1 also relied upon the photocopy of the letter dated 21.10.2006 (Mark PW1/D1).
11. The defendant also examined Sh. Krishan Kumar Mittal, Deputy Manager Accounts as DW2 who tendered his evidence by way of affidavit Ex. DW2/A on similar lines as the written statement and was duly crossexamined by the plaintiff.
12. Final arguments have been advanced on behalf of both the parties.
13. I have carefully considered the submissions made on behalf of the parties and given my thoughtful consideration to the evidence on Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 6 of 18 record. From the evidence on record my issue wise findings are as under:
Issue no. 1: Whether the suit of the plaintiff is liable to be dismissed as the plaintiff has not approached the court with clean hands? and Issue no. 2: Whether the goods supplied by the plaintiff were defective and of inferior quality?and Issue no.5:Whether the plaintiff is entitled to decree of recovery for a sum of Rs.1,95,700/ with interest at the rate of 18%?
14. These issues are being decided together as common questions of fact arise therein. While the onus to prove issue no.1 and 2 was on the defendant in view of the preliminary objection raised in the written statement, the onus to prove the issue no.5 was on the plaintiff. It is not in dispute that the plaintiff has placed an order (Mark PW1/8) upon the defendant for supply of printed material. It is also not in dispute that as that as per Mark PW1/8 the material was to be delivered by 18th October 2006.
15. PW1 has deposed in his evidence by way of affidavit that the plaintiff according to the works completed the orders and delivered the printing material to the satisfaction of the defendant vide challan Ex. PW1/2 to Ex. PW1/5. As per Ex. PW1/3 dated 18.10.2006, 100 annual books were supplied and as per Ex. PW1/4 dated 19.10.2006 and Ex. Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 7 of 18 PW1/5 also dated 19.10.2006, 1400 envelops and 1215 annual books were supplied on 19.10.2006. As per Ex. PW1/2, 1400 envelops were supplied on 01.11.2006. PW1 has further deposed that the plaintiff had completed the work order on 18.10.2006, 19.10.2006 and 01.11.2006. During his crossexamination, PW1 has admitted that only 100 pieces had been supplied on 18.10.2006.
16. DW1 on the other hand has deposed on behalf of the defendant that plaintiff supplied only 100 annual books on 18.10.2006 and rest thereafter. DW2 has deposed on similar lines. During his cross examination DW1 has deposed that part of the material was received in October 2006 and the rest of the material was received one or two days later. Thus in their testimony the defendant witnesses have not denied the receipt of the material in October 2006 even more so in the absence of any specific denial of receipt of material on 19.10.2006. The defendant has himself relied upon two letters Mark PW1/D1 and Mark PW1/D2 and hence the contents of the same being admitted by the defendant can be read against the defendant. As per the letter Mark PW1/D1, the defendant has admitted to receiving the goods as per delivery challan No.097 dated 18.10.2006 (Ex.PW1/3), Delivery challan No.098 dated 19.10.2006 Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 8 of 18 (Ex.PW1/4), and delivery challan No.100 also dated 19.10.2006 (Ex.PW1/5). Hence the documents Ex. PW1/3 to Ex. PW1/5 are deemed to be admitted by the defendant. Further as per Mark PW1/D2, the material was delivered as per delivery challan No.108 dated 01.11.2006 (Ex.PW1/2) on 02.11.2006. Hence the Ex. PW1/2 is also deemed to be admitted by the defendant.
17. It is duly noted that the entire plaint as well as the testimony of the PW1 is silent as to any variation being made in the terms of the order Mark PW1/8 in respect of the date of delivery or the quantity of the printed material. PW1 denied that there was no verbal extension of time beyond 18.10.2006 for supply of material or that the receipt of the defendant also do not show any extension of time. The PW1 has categorically asserted that the material was supplied as per the delivery challans as per which the material was supplied till November 2006. No explanation has been put forth by the plaintiff to explain the basis for the plaintiff supplying the material beyond the stipulated date of 18.10.2006.
18. On the other hand, DW1 has deposed in his evidence that vide letter dated 21.10.2006 Ex. PW1/D1, the defendant had objected to the inferior quality of the annual report supplied by the plaintiff and Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 9 of 18 objections were raised in the letter as to the low quality paper and printing quality not conforming to the order giving one week's time to the plaintiff to lift the low quality material and supply fresh annual reports and envelops of correct size and as per specifications. DW1 has further deposed that after receipt of this letter, plaintiff supplied 1400 fresh envelops but failed to supply fresh copies of the annual reports. DW1 has further deposed that vide letter dated 03.11.2006 Ex. PW1/D2, request was again made to the plaintiff to supply fresh copies of the annual report as per specifications which was not done. DW2 has deposed on similar lines.
19. During crossexamination DW1 deposed that the letter Mark PW1/D2 dated 03.11.2006 and the letter Mark PW1/D1 were both signed by him. However, PW1 deposed that he did not remember the mode vide which the letter was sent to the plaintiff and volunteered that it must have been sent by UPC. He admitted that he has not placed on record any UPC/Speed Post/Registered Post receipts. DW2 in his evidence by way of affidavit also deposed on similar lines but during crossexamination he deposed that he did not know the name of the person who wrote the letter dated 21.10.2006 ie Mark PW1/D1. He further deposed that he was not Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 10 of 18 aware of the medium by which the letter was sent to the plaintiff. Upon being shown Mark PW1/D1 and Mark PW1/D2, DW2 has admitted that the letters do not bear any receiving nor postal receipts have been filed. He volunteered that they have the postal receipts in the ordinary course. Thus, the defendant has not been able to prove that the letters were actually ever dispatched to the plaintiff and if so how they were sent and when were they were received by the plaintiff.
20. The inability of the defendant to prove the communication of the inferior quality and defect in the material assumes importance in view of the argument of the defendant during the course of final argument that from the undisputed document i.e. purchase order Mark PW1/8 it is clear that the 1000 pieces were to be delivered and since vide challan Ex.PW1/2 dated 01.11.2006 1400 envelopes were delivered as also 1400 envelopes were delivered vide Ex.PW1/4 dated 19.10.2006 that in itself was indicative that the plaintiff was aware that the goods which had been supplied were not as per the specifications due to which the plaintiff supplied 2800 envelopes instead of 1000 envelopes. No explanation has been put forth by the plaintiff to explain why 2800 envelopes were supplied though in the written submissions filed the Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 11 of 18 plaintiff sought to explain that the envelops supplied on 19.10.2006 and on 01.11.2006 were of different sizes.
21. The argument of the defendant though appearing to have merit is of little assistance to the defendant in the facts of the instant case for the reason that by virtue of Section 42 of Sale of Goods Act, inter alia a buyer is deemed to have accepted the goods if after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them. Once the defendant admits that he has received the goods on 18.10.2006, thereafter and again on 02.11.2006 the onus shifts upon him to prove that he has rejected the goods within a reasonable time. As the defendant has not been able to prove the Mark PW1/D1 and Mark PW1/D2 the onus of the defendant remains undischarged. Further it is noted that vide Ex. PW1/5 the plaintiff had supplied 1215 annual books to the defendant and vide Ex. PW1/3 100 books had already been supplied on 18.10.2006. Thereafter no annual books were supplied by the plaintiff to the defendant and hence nothing has been proved on record to indicate that the annual books as supplied under Ex. PW1/3 and Ex. PW1/5 were defective. Hence the plaintiff having received the same and not communicated about the rejection is thus liable to pay for the annual Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 12 of 18 books in respect of which Ex. PW1/7 has also been raised.
22. In so far as the supply of envelops is concerned it is noted that even if the supply of fresh envelops vide Ex. PW1/2 after supply of the envelops under Ex. PW1/4 is taken to be indicative of defect and inferior quality as alleged though not proved by the defendant, the same is of little consequence in view of Section 42 of Sale of Goods Act by virtue of which the defendant is deemed to have accepted the envelops supplied on 01.11.2006. Even the argument put forth by the defendant in respect of the more quantity being indicative of defective material is devoid of merits as defect in materials supplied if known to a seller would not be set right by sending more quantity of the alleged inferior quantity material to the buyer. Except oral testimony in respect of the goods being of inferior quality and of there being defect in material, no corroborative evidence has been led by the defendant nor the defendant has been able to prove that the defendant ever sent the communication to the plaintiff informing them of the inferior quality and/or rejection of the goods hence the defendant is deemed to have accepted the material.
23. During the crossexamination of PW1 a suggestion was put to him that the goods were received merely by the guard or caretaker Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 13 of 18 which he denied. Upon being shown Ex.PW1/2 to Ex.PW1/6, PW1 has admitted that there is no mention of the name or stamp of the person receiving the material. Though Ex. PW1/2 to Ex. PW1/5 do not bear any stamp of the defendant company, however, the receipt of the goods till 01.11.2006 has not been denied by the defendant in the written statement in as much as the defendant has admitted to receiving 100 annual book reports on 18.10.2006 and rest thereafter as also DW1 and DW1 have themselves deposed to having received 1400 fresh envelops on 01.11.2006 which Ex. PW1/2 also does. Thus, once the receipt of the material is admitted, the question whether the material as mentioned in Ex. PW1/2 to Ex. PW1/5 was received by any official of the defendant becomes inconsequential even more so in view of the admissions of the defendant in Mark PW1/D1 and Mark PW1/D2 in respect of the receipt of the material as per delivery challans Ex. PW1/2 to Ex. PW1/5.
24. Further the claim of the plaintiff is for Rs. 1,35,122/ with interest @ 18% per annum for the total of Rs. 1,95,700/. Perusal of Ex. PW1/6 relied upon by the plaintiff reveals that a sum of Rs. 5,200/ has been charged for supply of 1400 envelops while for 1315 annual books a sum of Rs. 124925/ has been charged @ 95 per unit and inclusive of Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 14 of 18 VAT@ 4%. However, as per Mark PW1/8 rate was agreed upon @ Rs. 95/ per balance sheet with envelop and no price was fixed for the supply of the envelop separately. That being so no basis have been proved by the plaintiff for raising the invoice Ex. PW1/6 for Rs. 5200/ and not being provided for under the contract, the plaintiff cannot claim the same from the defendant. Further as per the contract Mark PW1/8, the full and payment was to be made "in a week's time from the date of delivery". Vide Ex. PW13, 100 books with envelops had been delivered on 18.10.2006 and hence payment in respect of the same had to be made within one week therefrom i.e. by 25.10.2006 and hence any suit for recovery of the same should have been filed by 25.10.2009. However, the present suit has been filed on 26.10.2009 and hence the claim of the plaintiff qua the goods supplied under Ex. PW1/3 has become time barred. However, the plaintiff on the basis of preponderance of probabilities, the plaintiff has been able to discharge the onus qua only the annual books supplied vide Ex. PW1/5 on 19.10.2006 ie 1215@ Rs. 95/ ie Rs.1,15,425/ with Vat @ 4% ie Rs. 4617/ ie Rs. 1,20,042/. The plaintiff has claimed interest @ 18% per annum however has not proved that the same was the agreed rate of interest or is the prevalent rate of Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 15 of 18 interest as per ordinary course of business. Hence the plaintiff cannot be awarded interest @ 18% per annum. Keeping in view that a civil suit is to be decided on preponderance of probabilities, accordingly on the basis of preponderance of probabilities the issue no.1 and 2 are decided against the defendant and in favour of the plaintiff. Issue no.3 is partly decided in favour of the plaintiff and against the defendant.
Issue no 3: Whether the suit of the plaintiff is barred by the limitation ?
25. The onus to prove this issue was on the defendant in view of the preliminary objection raised in the written statement. In view of the discussion in issue no.1, the defendant has been partly able to discharge the onus cast upon them and this issue is accordingly partly decided in favour of the defendant and against the plaintiff and partly in favour of the plaintiff against the defendant.
Issue no.4: Whether the suit of the plaintiff has not been filed by duly competent and authorized person?
26. The onus to prove this issue was on the defendant in view of the preliminary objection raised in the written statement. Despite an Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 16 of 18 objection being taken in the written statement, neither defence witness deposed on oath that the suit has not been filed by a competent person. Even during crossexamination of PW1, no questions or suggestions were put to him qua Ex. PW1/1. It is not the case of the defendant that Sh Pradeep Sood is not the Director of the plaintiff Company.
27. It is a settled law that a company being a juristic entity, by virtue of Order 29 Rule 1 of the CPC, inter alia any Director of the company who is able to depose to the facts of the case might sign and verify on behalf of the company by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In the case at hand, in the absence of any evidence having been adduced as to PW1 not being authorized or competent person, this issue is decided against the defendant and in favour of the plaintiff.
Relief:
28. In view of my findings on issue no.4 and 5, the suit of the plaintiff is partly decreed against the defendant for Rs. 1,20,042/(Rs. One Lakh Twenty Thousand Forty Two only) alongwith pendente lite interest @ 8% per annum and future interest@6% per annum. Costs of the suit Civil Suit No.407/10 M/s Capital Print Process Pvt. Ltd. v. KRBL Limited Page 17 of 18 are also awarded in favour of the plaintiff against the defendant.
29. Decree Sheet be prepared accordingly.
30. File be consigned to the Record Room after necessary compliance.
Announced in the Open Court
on 25.01.2014 (Pooja Gupta)
Civil Judge03/South District
New Delhi
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