Delhi District Court
M/S Aerotech India Pvt. Ltd vs M/S Novelty Enterprises on 21 December, 2013
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 772/10
Unique ID No
M/s Aerotech India Pvt. Ltd,
Through its Director
Sh. Sanjay Malhotra,
R/o H39, Bali Nagar,
New Delhi15.
.............Plaintiff
Versus
M/s Novelty Enterprises
Through its Proprietor
Sh. Ajay Kumar Galhotra,
D4, Sector3, Bawana Industrial Area,
Delhi.
Sh. Ajay Kumar Galhotra,
Proprietor of M/s Novelty Enterprises,
H3/87, First Floor, Sector18,
Rohini, Delhi85.
.............Defendants
Date of filing : 28.10.2006
Date on which order has been reserved: 20.12.2013
Date of pronouncement of judgment : 21.12.2013
Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 1/15
JUDGMENT
1. Plaintiff has filed the present suit to pass a decree in favour of the plaintiff and against the defendants for a sum of Rs. 2,63,209.58/ along with interest @ 22% per annum from the date of filing of the suit till the realization of entire amount with costs of the suit.
2. Plaintiffs Version: In the present suit, plaintiff stated that the plaintiff company is engaged in business of Tradering and Suppliers of industrial chemicals. The Board of Directors of the plaintiff company has authorized in their meeting, Sh. Sanjay Malhotr to file, sign and conduct the suit on behalf of the plaintiff company against the debtors of the plaintiff company and he is competent to file the suit on behalf of the plaintiff company. The resolution has been passed with this respect by the Board of Directors of the plaintiff company dated 05.08.1996. Board of Directors of the plaintiff company has resolved in their meeting and also authorized Sh. Narender Kumar Wadhwan S/o Sh. Khazan Chand Wadhwan, Manager (Account and Finance) to file, lead evidence and conduct the suit on behalf of the plaintiff company against the debtors.
The defendant No. 2 approached the plaintiff company and represented him to be the Sole Proprietor of defendant No. 1. Defendant No. 1 through defendant No. 2 had business dealing with plaintiff and had been purchasing the goods i.e Silicone Resin as per his requirements. The defendant Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 2/15 No. 2 on behalf of the defendant No. 1 placed order from time to time. The ordered goods were supplied to the defendants and same were received by the defendants and they were satisfied with its quality which were according to demand and there was no complaint of any sort either in writing or in oral. Along with the goods, the invoices of the abovesaid goods were also handed over to the defendants. Defendant No. 1 through the defendant No. 2 purchased goods from plaintiff since 2001 to 2005 and plaintiff supplied the goods in due time. The total goods of worth of Rs. 15,83,253/ were supplied to the defendants by plaintiff, out of said running account maintained by the plaintiff, there is an outstanding balance of Rs. 1,89,750/ due and payable from the defendant, since the financial year 200506. The following is the details of outstanding balance: Invoice No. Date Amount Com/1115 19.11.2004 Rs. 5,025/ Com/1145 30.11.2004 Rs. 22,950/ Com/1266 28.12.2004 Rs. 45,900/ Com/1306 07.01.2005 Rs. 22,950/ Ex/645 15.02.2005 Rs. 22,950/ Com/1420 16.02.2005 Rs. 69,975/ Total Rs. 1,89,750/ The defendants are also liable for interest on the outstanding bills from the due date as per terms and conditions of the agreement/invoices and the Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 3/15 interest on the delayed payment against the goods sold to the defendants started from 2001 to September, 2006 and as per the terms in the invoice/bills, the defendants are liable to pay the interest @ 22% per annum from the date of principal amount became due and the details are as under: Financial Year Interest 200405 Rs. 8,173.52/ 200506 Rs. 45,587.47/ April, 2006 To August, 2006 Rs. 17,498.59/ Total Rs. 71,259.58/ The plaintiff has made request through telephonic call and a demand letter dated 19.06.2006 for the said payment, the defendants have failed to make the said payment. The defendants gave the reply to the said notice with the frivolous stand that the goods supplied were of inferior quality. The said stand of the defendants is the after through of the defendants and is a counter blast to the claim of the plaintiff. The defendants are liable to pay the following amount to the plaintiff on the date of filing of the suit: Value of the goods Rs. 1,89,750/ Interest Rs. 71,259.58/ Notice Charges Rs. 2,200/ Total Rs. 2,63,209.58/ The defendants are further liable to pay the pendent lite and future Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 4/15 interest on the said total @ 22% per annum thereon from the date of filing of the suit till the realization of the entire amount. Hence, the suit.
3. Defendant's Version: In the WS, the defendants have denied all the claims of the plaintiff stating that
(i) The plaintiff has not filed the complete documents and have withheld the important documents especially the letter dated 27.03.2006 whereby the plaintiff was called to lift the dumped defective goods which were sub standard and were not fit for any purpose.
(ii) The suit has not been filed by a duly authorized or competent person. The suit has been signed by Sh Sanjay Malhotra and not by Sh. Narender Kumar Wadhwan. Sh Wadhwan aforesaid has no authority under law to lead evidence or depose facts of the case. Sh. Sanjay Malhotra has also no authority under law to lead evidence.
(iii) The business dealing and purchase of silicon resin is not denied. The payments were duly made against the purchases. The substandard goods which were supplied to the defendants by the plaintiff were not upto the mark and the plaintiff was accordingly informed to lift the same back, but they were so careless towards lifting the goods but eager to receive the money only, they filed the present suit without doing the needful in the matter.
(iv) There is no entry of the goods return along with the same were to be lifted by the defendants for which the plaintiff were duty bound as per business Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 5/15 norms. Defendants made payment of the goods supplied by the plaintiff upto the quality standard maintained by the defendants.
(v) The plaintiff lost quality and dumped substandard goods in response to the orders of the defendants compelling them to withhold and deduct the amount of the goods to the extent of Rs. 1,90,000/. The plaintiff principally agreed to the same telephonically but the defendants did not know the sinister designs of the plaintiff that they will file the present suit as such the defendants did not insist for the debit note of the said amount, which they have been lingering on one pretext or the other.
(vi) Statement of account is not certified as per the provisions of Bankers Books Evidence Act, as such has no sanctity under law.
(vii) The invoices mentioned in the plaint are denied. The goods sent under the invoices mentioned in the plaint were not of required quality as such the goods were sought to be lifted by means of letter dated 27.03.2006 when the plaintiff had failed to lister to the genuine telephonic request of the defendants and the said dumped goods/material was occupying the working space of the defendants. When the plaintiff failed to send the debit note as required, the goods were wasted and the amount was written off in the account books of the defendants. The defendants had already informed the plaintiff about the quality of the goods and had been requesting them to take the same back, but the plaintiff was avoiding to pay any heed to the same.
4. By way of replication, plaintiff has denied all the claims of the Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 6/15 defendants stating that the letter dated 27.03.2006 is an after thought of the defendants to defraud/denying the claim of the plaintiff and it is a manufactured document and it is pre dated. The following facts proves that the alleged defect in goods is an after thought of the defendants to defraud the value of the goods due to the plaintiff:
(a) That the defendants were supplied Silicon Resin R3370 manufactured by GE Bayer Silicon India (A part of General Electric Company, USA). The plaintiff has sold the said material worth crores of rupees without any quality complaint from any of the other customers.
(b) The defendants have bought the said material since November, 2004 without any complaint of defective material has arisen in order to deny the payment of value of goods.
(c) The defendants have provided form ST35 Form (Local Sales Tax) for all the outstanding bills/invoices. If there was a rejection of defective goods, the defendants would not have provided the said forms.
(d) The defendants have not placed stock statement or balance sheet of financial year 200405 in the present case and therefore, it can not be established that the unutilized and rejected material is lying with the defendants.
(e) The defendants have not stated the exact nature of defect i.e manufacturing defect or defect in uses. The plaintiff has not been called upon to inspect the material, at the time, the same was delivered to the defendants and no laboratory test were conducted to establish the same and therefore, the allegation Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 7/15 of defective material is an arbitrary decision of the defendants.
(f) The plaintiff are the distributors of M/s GE Bayer Silicon India which is a subsidiary of M/s General Electric Company and M/s GE Bayer Silicon Indian has office in Gurgaon, Haryana. The defendants have not complained to them to ascertain the nature of defect and have not utilized there vast technical resources to find the defect.
The statement of account is not required to be certified s per the Bankers Book Evidence Act because the plaintiff is not a bank. The amount had been wrongly written off in the account books of the defendants.
5. On the basis of pleading and arguments of the parties, vide order dated 27.08.2012, the following issues have been framed respectively: (I) Whether the suit has been properly valued for the purpose of court fees?OPD.
(II) Whether the suit has been filed by a duly authorized person?OPP. (III) Whether the plaintiff is entitled to recovery of Rs. 2,63,209.58/ as prayed for?OPP.
(IV) Any other relief.
6. In PE, plaintiff has examined Sh. Anil Sharma as PW1. Plaintiff has relied upon the following documents:
(i) Certificate of incorporation of plaintiff company is Ex. PW1/1.
(ii) Copy of list of directors is Ex. PW1/2.
Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 8/15
(iii) Certified copies of the extract of minutes books are Ex. PW1/3 and
Ex. PW1/4.
(iv) True copy of the said account is Ex. PW1/5(colly).
(v) Invoices are Ex. PW1/6 to Ex. PW1/11.
(vi) The statement of interest is Ex. PW1/12.
(vii) Copy of letter dated 19.06.2006 is Ex. PW1/13.
(viii) Legal notice dated 15.07.2006 is Ex. PW1/14.
(ix) Postal receipts are Ex. PW1/15 & Ex. PW1/16.
(x) AD cards are Ex. PW1/17 & Ex. PW1/18.
(xi) Copy of reply is Ex. PW1/19.
(xii) Notice dated 15.07.2006 is Ex. PW1/20.
(xiii) Postal receipts are Ex. PW1/21 & Ex. PW1/22.
7. On the other hand, defendants have examined Sh. Ajay Kumar as DW1. Defendants have relied upon the following documents:
(i) The letter dated 27.03.2006 is Ex DW1/1.
(ii) The UPC dated 27.03.2006 is Ex. DW1/2.
(iii) The letter dated 22.05.2006 and UPC are Ex. DW1/3 & Ex. DW1/4.
8. The opportunities to the parties to address final arguments were given on 20.12.2013.
9. My Issue Wise Findings: (A) Issue No. 1: Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 9/15 Whether the suit has been properly valued for the purpose of court fees?OPD.
The onus to prove this issue is upon the defendants. However, neither the defendants have lead any evidence nor addressed any arguments. Accordingly, issue No. 1 is decided in favour of the plaintiff and against the defendants.
(B) Issue No. 2: Whether the suit has been filed by a duly authorized person?OPP. The onus to prove this issue is upon the plaintiff. Plaintiff has stated that suit has been filed by duly authorized representative Sh. Sanjay Malhotra who is one of the Director of plaintiff company and in support of its contention, plaintiff has filed article of memorandum of association of plaintiff company which is Ex. PW1/2 and certified copy of extracts of minutes book of resolution dated 05.08.1996 which is Ex. PW1/3. PW1 has deposed regarding the same and the testimony of PW1 has stood up to the cross examination, therefore, it can be said that plaintiff has been able to prove that suit has been filed by duly authorized person. On the other hand, the defendants have not lead any evidence to the contrary nor addressed any arguments to show the otherwise. Therefore, the issue No. 2 is decided in favour of the plaintiff and against the defendants.
(C) Issue No. 3: Whether the plaintiff is entitled to recovery of Rs. 2,63,209.58/ as prayed for?OPP.
Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 10/15
(i) The onus to prove this issue is upon the plaintiff. To prove the same, plaintiff has examined Sh Anil Sharma as PW1 and during examination in chief by way of affidavit, he has reasserted the facts mentioned in the plaint. He was duly cross examined and during cross examination, he has deposed that "............It is correct that the transaction in dispute not took place in my tenure as these transactions are upto 2006. I can not tell as to whom signatures are at point A1 on Ex. PW1/6 as the person has been in service before me............"
(ii) On the other hand, defendants have examined Sh. Ajay Kumar as DW1 and he was duly cross examined and during cross examination, he has deposed that "..............Whenever we use to receive the delivery, we check the same but when delivery is received by the labour, they being uneducated person, never checked the same as they are not competent to check the expiry date of goods............Whenever delivery is received, then it is not must that we ourselves take the delivery. In the present case, labour accepted the delivery without checking the expiry date and after 3 days, when we checked the same, I contacted the plaintiff and informed them about the same...........The goods delivered in first installment were of expiry date and I made the complaint and meanwhile the second installment was received of expiry installment and thereafter, a dispute arose between me and plaintiff company and plaintiff gave me assurance that they will lift the goods from my godown but plaintiff kept delivering the goods of expiry date and the same are lying useless in my godown till date..........."
(iii) In the present suit, as per plaintiff, the plaintiff has supplied the Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 11/15 goods to the defendants and despite receiving the goods, defendants have failed to pay the entire amount of the goods purchased during the period from 2001 to 2005. The plaintiff has sent the legal notice which was duly replied by the defendants and the defendants have taken a false plea that goods were of inferior quality. The defendants failed to make payments, hence, the suit.
(iv) On the other hand, defendants admitted the purchase and supply of goods but the defence taken by the defendants is that the goods supplied, were not up to the quality standard and therefore, vide letter dated 27.03.2006, plaintiff was called to lift his material and on failure of the plaintiff to comply with the notice, goods were wasted due to shortage of space with the defendants. Thereafter, as a counterblast, plaintiff sent a legal notice dated 19.06.2006 which was duly replied by the defendants vide letter dated 21.08.2006.
(v) I have heard the arguments and perused the record.
(vi) It is well settled rule of law that in civil cases the burden of proof upon the plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the suit of the plaintiff has to stand on its own legs.
(vii) The business transactions between parties are admitted. The defendants have admitted that the goods were supplied to them but as per defendants, the goods were not of standard quality. Now, the onus shifts upon the Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 12/15 defendants to prove that
(a) The goods supplied, were not of standard quality.
(b) The defendants have called the plaintiff to check the goods and the action taken by the plaintiff is counter blast to the same.
As per defendants, the goods have been wasted, so the goods can not be inspected to show the standard of the goods. Further, in the WS, defendants have stated that the goods were of sub standard quality and in the reply dated 21.08.2006, same has stand has been taken by the defendants but during defence evidence, defendants have stated that goods were of expiry date. Thus, the defendants have tried to take a new defence in the evidence which is not permissible. Further, the business transactions pertains to the chemicals and it is highly improbable that being dealers of chemicals, the defendants would not understand the difference between sub standard goods and expired goods. Further, the defendants have filed a letter dated 27.03.2006 which is Ex. DW1/2 by which, plaintiff was called to lift the good supplied to the defendants. From its perusal, it is clear the goods were supplied to defendants vide invoices dated 19.11.2004, 30.11.2004, 28.12.2004, 07.01.2005 and on 16.02.2005. Thus, there is a presumption that goods might have been delivered to the defendants immediately. Now, the last delivery was of 16.02.2005 and the alleged notice has been given to the plaintiff on 27.03.2006. The goods are chemicals and it is highly improbable that in case sub standard or expired chemicals have been supplied to the buyer, the buyer would wait for one long year as in such kind of Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 13/15 business transactions, there is a presumption that time is essence of contract. Further, from the dates of invoices, it is clear that the goods were supplied in the span of 4 months and as per DW1 after three days of first delivery the goods were checked and it was found that goods are of expiry date. The first invoice was raised on 19.11.2004 and even if taken as truth, the defendants might have checked the goods by 22.11.2004 and the plaintiff might have been informed about the same. Now, it is highly improbable that the defendants would accept the other delivery on 30.11.2004 and then 3rd delivery on 28.12.2004 and then again on 07.01.2005 and then again on 16.02.2005 as it is against the normal course of business and human nature. Further, as per defendants, the defendants have served a letter upon the plaintiff on 27.03.2006 (Ex. DW1/2) whereby the plaintiff was called to lift the goods lying useless being not upto the mark and thereafter, as per defendants as a counter blast to the same, plaintiff served a legal notice upon the defendants on 15.07.2006 (Ex. PW1/14) which was duly replied by the defendants vide reply dated 21.08.2006(Ex. PW1/19). From perusal of Ex. PW1/19 i.e reply sent by the defendants, it is clear that in the said letter, defendants have not averred even a single word regarding the letter dated 27.03.2006 and the same is improbable as well as non commencing.
(viii) In view of the above discussion, it is clear that plaintiff has proved its averments while the defendants have failed to prove its contentions and the stand taken by the defendants seems improbable. Therefore, it can be said that the plaintiff has been able to prove that plaintiff is entitled the recovery of Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 14/15 amount of Rs. 2,63,209.58/. The plaintiff has also sought the relief of interest @ 22% per annum which appears to be excessive and can not be granted. Therefore, the plaintiff is entitled to the interest @ 7% per annum on the amount of Rs. 2,63,209.58/ till the date of judgment. Therefore, the issue No. 3 is decided in favour of the plaintiff and against the defendants.
10. As all the issues have been decided in favour of the plaintiff and against the defendants, the suit is liable to be decreed. Accordingly, the suit is decreed in favour of the plaintiff and against the defendants for a sum of Rs. 2,63,209.58/ along with interest @ 7% per annum till the date of judgment.
Cost of the suit be also awarded in favour of the plaintiff and against the defendants.
In the present suit during execution proceedings of Exparte judgment dated 21.01.2011 some amount has been realized, therefore, the Nazir of the court is directed to give the report regarding the amount realized and let the decree sheet be prepared only after the statement/report of Nazir.
File be consigned to the record room after due compliance. Announced in the open court on 21st of December, 2013 (PRABH DEEP KAUR) CIVIL JUDGE05 (WEST) THC/DELHI/21.01.2013 Suit No. 772/10 M/s Aerotech India Pvt. Ltd. Vs. M/S Novelty Enterprises Page No. 15/15