Delhi District Court
Harsh International vs Springer Mattresses And Others on 20 March, 2024
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM.) (DIGITAL-07),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (Comm) 599/2022
Harsh International
having its Registered Office at:
S-277, GK-II, New Delhi-48.
..... Plaintiff
Vs.
1. Springer Mattresses
at Village Hirthada (Lalluwa),
P.O. Binderwal, Tehsil Haroli,
District Una, Himachal Pradesh-176601
Also at:
14/6, Mathura Road, Faridabad.
2. Inderjeet Singh Khurana
Partner of Springer Mattresses
at Omax, The Forest Spa,
703, Oak Tower, Anangpur Chowk,
Sector-43, Faridabad-121010.
3. Ramakant Aggarwal
Partner of Springer Mattresses
at A-23, Block A, C. C. Colony,
Delhi-07.
..... Defendant
Date of Institution: 02.06.2022
Arguments concluded on: 20.03.2024
Date of Judgment: 20.03.2024
Harsh International Vs. Springer Mattresses Page No. 1 of 38
JUDGMENT
Brief introduction of parties By this judgment, I shall decide the present suit filed by M/s Harsh International, a duly registered partnership firm with Registrar of Firms, New Delhi (hereinafter to be referred as plaintiff) through Sh. Puneet Lal, partner. It is stated that plaintiff is in the business of selling the industrial chemicals having its registered office at S-277, GK-II, New Delhi-48 and its godown is situated at Khasra No. 28/31, Gali No. 16, Libaspur, Delhi.
2. The suit is filed against M/s Springer Mattresses and others whereas M/s Springer Mattresses is a partnership firm having its registered address @ Village Hirthada (Lalluwa), P.O. Binderwal, Tehsil Haroli, District Una, Himachal Pradesh- 176601 and is impleaded as defendant No. 1 and Sh. Inderjeet Singh Khurana and Sh. Ramakant Aggarwal are impleaded as defendants No. 2 and 3, respectively being partners.
Gist of the claim/ plaint
3. The present suit is filed on below facts:
(i) Plaintiff states that being engaged in business of trading of chemicals, it was supplying the same to defendant.
(ii) The terms of executing business between the parties was finalized as below:
"Firstly, Defendant no. 2 and 3 places the Purchase Order upon the plaintiff specifying the details of the industrial chemicals required by the defendant, Secondly, Plaintiff prepare the consignment on the basis of said Order and will generate the Tax Invoice upon the defendant no. 1 and issue the E-way Bill, Harsh International Vs. Springer Mattresses Page No. 2 of 38 Thirdly, Defendant no. 2 and 3 transporter will collect the consignment from the Plaintiff and will deliver the consignment to the defendant no. 1, Lastly, Defendant no. 2 and 3 will make the payment to the Plaintiff by making the payments through bank transfer."
(iii) Plaintiff states that defendant No. 2 placed order verbally on which the plaintiff supplied the requisite industrial chemicals, on credit basis, through tax invoice dated 29.03.2021. The material was duly received by the defendant. As per the said tax invoice, defendant had to deposit the amount into the plaintiff's bank account with Corporation Bank, GK-2, New Delhi.
(iv) The plaintiff who has been maintaining the running ledger account in the due course of business in respect of transactions executed with the defendant found that the books of account of plaintiff which are regularly audited and maintained in ordinary course of its business showed an outstanding of Rs. 9,37,215/- against the defendant, whereafter despite admitting the liability and making assurances to pay have not cleared the outstanding.
(v) The suit is filed seeking the relief of Rs. 9,37,215/- alongwith interest @ 18% from the date of 19.03.2021 till 26.05.2022 and an amount of Rs. 2,00,127/- is thus claimed towards the interest.
Gist of written statement
4. The defendants have jointly filed their written statement on below facts.
(i) That defendant No. 1 M/s Springer Mattresses is a registered partnership firm and defendants No. 2 and 3 are its partners (having its registered address at Thara, Heerthara, Springer Harsh International Vs. Springer Mattresses Page No. 3 of 38 Mattresses, Haroli, Tehsil Haroli, Una, Himachal Pradesh. Written statement is filed by Sh. Inderjeet Singh Khurana, defendant No. 2).
(ii) That plaintiff's suit is false and not maintainable as defendant firm is a trading firm and is in the business of purchasing industrial chemicals, in form of raw materials and supplying the same to other group companies/ entities for production of foam and other goods relating to sleep products and is also involved in trading the mattresses and sleep products that are manufactured by its group entities.
(iii) Defendant No. 1 alongwith Cozy Touch Poly Foams Indian Pvt. Ltd. and Coirfoam (India) Pvt. Ltd. are group entities with some partners in common and are involved in creating and supplying goods and products of similar nature.
(iv) Defendant states that plaintiff and sister concern Kartikay Impex, are common supplier to defendant firm and its group entities. Plaintiff supplied the raw material in form of chemical in Polyol, TDI, Arcol, Polyol and Polyol PPG to the defendant firm and other group entities. After receiving the raw material from the plaintiff, the defendant No. 1 supplied the raw material to other group entities namely Cozy Touch Poly Foams Indian Pvt. Ltd. and Coirfoam (India) Pvt. Ltd. Defendant states that plaintiff company and Kartikay Impex are commonly operated by Sh. Punit Lal, who has been in constant communication with Anuj Aggarwal, director of the defendant's group entities namely Cozy Touch Poly Foams Indian Pvt. Ltd. and Coirfoam (India) Pvt. Ltd.
(v) The plea of bar of territorial jurisdiction for trial by this Court is raised on the ground that the suit is not made out before Harsh International Vs. Springer Mattresses Page No. 4 of 38 the Delhi Courts and must be tried with the Courts situated at Una, Himachal Pradesh where the defendant firm carries out its business and operations. Since defendant purchases raw material for production of foam and later supply the raw material to others involved in production of foam and carries its business and operations from its registered office alone, all the orders of the raw material i.e. industrial chemical placed by the defendant firm with the plaintiff company have been made from the registered office at Una, Himachal Pradesh, and supplies are also received at Una, Himachal Pradesh and the suit is alleged to be barred under Section 20 CPC.
(vi) Defendant claims that the suit is filed on the basis of vexatious invoice as is raised against poor quality of material supplied, despite being obligated to deliver only high quality of material as the same was to be used in manufacturing of foam and foam products by defendant's customers/ group entities and any defect in the quality of chemical would lead to severe quality issues.
(vii) Defendant cites no liability towards balance shown in plaintiff's ledger and account statement and claims they do not bear any stamp or seal nor do they bear the signature of any authorized signatory of the defendant firm which may tantamount to its acknowledgment of liability.
(viii) The plaint is termed a bad, for misjoinder of defendant No. 2 and 3 who are claimed to have been maliciously impleaded without there been any transaction alleged between them and the plaintiff company.
(ix) Denying the plaint on merits, it is averred that the defendant and plaintiff have been engaged in close personal association for Harsh International Vs. Springer Mattresses Page No. 5 of 38 a long time as the plaintiff has been one of defendant's biggest suppliers of chemical products.
(x) It is claimed that plaintiff received multiple orders from the defendant firm from time to time as defendant firm (D-1) and its group entities had been relying upon plaintiff for supply of its large scale orders for top quality raw material, for in house production and manufacturing of foam related products, which is supplied on various dates.
(xi) Defendant states that during the period of March 2021 to June 2021 defendant received the supply of allegedly large quality Polyol chemicals from plaintiff amounting to Rs. 9,37,000/- including GST, which was then further supplied by the defendant firm to Cozy Touch Poly Foams India Pvt. Ltd. which used the said raw material alongwith other raw material and chemical procured from other external sources by Cozy Touch Poly Foams India Pvt. Ltd. for producing foam. However, the foam produced during this period by Cozy Touch Poly Foams India Pvt. Ltd. and all group entities, which had purchased the standard chemical from the plaintiff, turned out to be of no use and developed breaks, cracks and turned out to be discoloured and brittle.
(xii) The director of M/s Cozy Touch Poly Foams India Pvt. Ltd., Anuj Aggarwal who was made aware of such defects instructed investigation, whereafter it was found that it was Polyol chemical supplied by the plaintiff was of sub-standard and poor quality and had resulted in said cracks and breaks in foam. It was discovered that the Polyol Chemical supplied by the plaintiff during the said period instead of being clear and transparent, was translucent Harsh International Vs. Springer Mattresses Page No. 6 of 38 and yellowish in colour signifying serious quality issues in the 'lot' supplied by the plaintiff during the above period in question.
(xiii) The quality issues were brought to the knowledge of Mr. Punit Lal by Sh. Anuj Aggarwal through WhatsApp upon which Mr. Lal himself drafted a complaint message and requested Mr. Aggarwal to send the same on his email, which was complied by Mr. Aggarwal. The photos of sub-standard supplies and foam quality were shared with plaintiff from time to time on the pretext raised by the plaintiff for sharing it with the Chinese personnel at the factory.
(xiv) It is averred that plaintiff while acknowledging the quality issues assured the defendant's firm and its group entities that he will either adjust or remove the entire sub-standard lot for which Mr. Lal sought further time on account of massive shut down in China port due to Covid-19 issues and claimed that as a result of Covid fresh replacement supplies could not be arranged for some time.
(xv) Defendant states that somehow the delivery timelines were managed for its customers i.e. Cozy Touch Poly Foams India Pvt. Ltd. as the defendant had to procure the Polyol Chemicals from external vendors over the counter, which turned out to be more expensive.
(xvi) Defendant states that the foam produced by Cozy Touch Poly Foams India Pvt. Ltd. and Coirfoam (India) Pvt. Ltd. using the sub-standard lot of Polyol supplied by the plaintiff, either to them directly or through defendant firm turned out exclusively useless and had to be scrapped due to paucity of space and storage of such huge quantity of foam. As the products became unusable, expenses were incurred to destroy the lot of production Harsh International Vs. Springer Mattresses Page No. 7 of 38 as it had no sale or resale value. It is averred that plaintiff hence is not entitled to any claim of payment for the said sub-standard Polyol chemical.
(xvii) Defendant has denied that it is in the business of manufacturing of mattresses, pillows cushions etc. It is asserted that the defendant firm is a trading firm which procures raw material in form of chemicals from different companies and supplies the same to its group entities to enable them to produce and manufacture foam and other sleeping products. It is denied that defendant No. 2 and 3, its officials or employees of defendant firm approached the plaintiff to supply the industrial chemicals and made promises of any kind. It is denied that the transactions of the business were as stated by the plaintiff. It is denied that plaintiff supplied the requisite industrial chemical on credit basis through tax invoice dated 29.03.2021 was duly received by the defendant. It is denied that the plaintiff has been maintaining a running account in its due course of business in respect of transactions executed by the plaintiff with the defendant. It is denied that books of account of plaintiff are duly audited in ordinary course of business and the ledger is showing balance of Rs. 9,37,215/- since the statement of plaintiff did not bear any acknowledgment or affirmation by way of stamp or seal of authorized signatory of defendant. It is denied that defendant No. 2 and 3 have admitted the liability of the above amount and had assured to make the payment but had failed to pay the outstanding. It is stated that defendant firm does not owe any money or liability to the plaintiff company whereas the plaintiff company is guilty of providing the defendant sub-standard and low quality material and has played fraud. Defendant has alleged Harsh International Vs. Springer Mattresses Page No. 8 of 38 that plaintiff is maintaining a vexatious invoice which is raised against poor and inferior quality of products supplied to them which led to huge loss to defendant. The entitlement of plaintiff to claim amounts has been disputed. Cause of action is denied. Rest of the statements are disputed and denied and it is prayed that suit may be dismissed.
Gist of Rejoinder
5. Rejoinder to written statement is filed in reply to the written statement wherein below is stated:
(i) Plaintiff avers that the chemical was supplied to the defendant to M/s Springer Mattresses as well as M/s Coirfoam (India) Pvt.
Ltd. And M/s Cozy Touch. Sh. Inderjeet Singh Khurana, partner with M/s Springer Mattresses is also director of Coirfoam and M/s Cozy Touch whereas Sh. Anuj Aggarwal and Sh. Manish Kumar are other responsible persons from the business group. Plaintiff states that Punit Lal is also interacting with the above said persons for last several years.
(ii) Plaintiff states that during the cordial relations between the parties, defendant had sent vide e-mail dated 28.05.2022, account ledger statement for the period of 01.04.2020 to 31.03.2021 and 01.04.2021 to 31.03.2022 to Sh. Manish Kumar, their internal auditor in respect of the transaction between plaintiff and defendant and Sh. Manish Kumar had forwarded the same e-mail to the plaintiff.
(iii) It is alleged that Sh. Anuj Aggarwal has concealed and has filed a false affidavit knowing that the contents of his statement therein are forged and fabricated. It is alleged that the fabrication of the "WhatsApp" chat has been carried out as the picture of Sh.
Harsh International Vs. Springer Mattresses Page No. 9 of 38 Pankaj Arora (one of the officials of defendant) is seen affixed separately while some of the messages have not been disclosed due to some hidden agenda and vested interest. It is alleged that defendant through Sh. Inderjeet Singh Khurana and Sh. Anuj Aggarwal have intentionally prepared sham and bogus and concocted story qua inferior quality goods, and, in furtherance have created false and fabricated documents.
(iv) The plaintiff states that the manufacturer situated in Korea manufactures Polyol with the description - "PPG 3010 Polyol"; whereas the manufacturer situated in Singapore manufactures Polyol with the description - "Arcol Polyol 5613" and manufacturer situated in China manufactures Polyol with description - "YT 5602 Polyol". Plaintiff states that the formula and usage of all the three companies are similar in nature and all the three Polyol has the molecular weight of 3,000. Drum of the Polyol has the uniform weight of 210 kg, and that of TDI, drum has a uniform weight of 260 kg and that plaintiff sells them in sealed condition.
(v) Plaintiff states that WhatsApp message dated 26.06.2021 was finalized by Sh. Punit Lal (its partner) and sent to Sh. Anuj Aggarwal (partner of defendant) and same message was then reforwarded to Sh. Punit Lal on the same date i.e. 26.06.2021. However, no test report establishing poor quality of raw material is supplied to the plaintiff. Plaintiff asserts that the message was in respect of lase lot of YT-5603 Polyol whereas plaintiff had supplied Arcol Polyol 56132 to the defendant".
(vi) Plaintiff claims that defendant has placed a tax invoice dated 31.03.2021 issued by the defendant to one of its group companies M/s Cozy Touch wherein the number of goods were sold, Harsh International Vs. Springer Mattresses Page No. 10 of 38 however, the description of Polyol is not mentioned and the quantity of TDI does not matches with the uniform weight of the drums.
(vii) Plaintiff alleges that the defendant alongwith its group companies has created a false and frivolous tax invoice dated 31.03.2021.
(viii) While replying para-wise, the contents of paras 1 to 8 of the written statement are stated to be matter of record, however, it is claimed that defendant shall be put to strict proof. While replying to the preliminary objections, it is denied that suit is filed with malicious intentions to cause harassment and/ or is an abuse of process.
(ix) It is denied that the present Court has no territorial jurisdiction and the plaint is liable to be returned for filing before Court of competent jurisdiction in accordance with provisions of Order 7 Rule 10 CPC. It is averred that the plaintiff's registered office is situated at New Delhi. The defendant placed the verbal orders through plaintiff's registered office at New Delhi. The goods were dispatched from New Delhi and the entire record is maintained by plaintiff at its registered office at New Delhi. It is stated that defendant always made payments on account by depositing the amount into plaintiff's bank account with Corporation Bank, GK-II branch and even tax invoice of plaintiff is mentioning that subject to Delhi jurisdiction. In view thereof, the Delhi Courts have the territorial jurisdiction to try and entertain the suit.
(x) It is denied that a vexatious invoice has been raised in lieu of poor quality of material. Plaintiff has denied specifically that the defendant supplied the goods (purchased from the plaintiff) to its Harsh International Vs. Springer Mattresses Page No. 11 of 38 group companies M/s Cozy Touch and Coirfoam (India). Rest of the assertions are also disputed.
(xi) While replying to the preliminary submissions, it is denied that defendant is a trading firm and is engaged in purchasing and trading of raw material, that any sub-standard quality of chemical was provided by it to the defendant during March 2021 to June 2021, that defendant suffered any monetary loss as well as loss of reputation due to above.
(xii) It is denied that the foam produced during the above period by M/s Cozy Touch and all other group entities who purchased the chemical from plaintiff turned out to be of no use as it developed breaks, cracks and turned out to be of discoloured and brittle. It is denied that upon investigation it was ultimately found that it was the Polyol chemical supplied by plaintiff which was in fact sub-standard and of poor quality which resulted in such breaks and cracks in the said foam.
(xiii) It is denied that Sh. Punit Lal on behalf of plaintiff had acknowledged the quality issues in the Polyol supplied by them and had even assured the defendant that he will either replace the sub-standard lot or get the requisite adjustments qua the same subsequently. It is denied that Punit Lal sought further time for the same as there was massive shut-down at China port due to Covid-19 because of which fresh replacement supplies could not be arranged for some time. It is denied that defendant spent huge amount of money out of their own pocket to destroy the said lot of production as same had no sale or resale value attached to it. Rest of the averrments are denied and contents of the plaint are reasserted. The rejoinder is filed with the statement of truth.
Harsh International Vs. Springer Mattresses Page No. 12 of 38 Note of the proceedings
6. On completion of the pleadings, issues as below were framed on 21.12.2022:
(i) Whether the plaintiff is entitled to recovery of Rs.
9,37,215/- from the defendant alongwith pendent lite and future interest as prayed? OPP
(ii) Relief.
7. Prior to aforementioned, Ld. Predecessor vide order of the same date had decided the applications under Order 12 -A of Commercial Courts Act 2015 and under Order 11 Rule 4 CPC moved by plaintiff in its favour and the application under Order 39 Rule 1 & 2 CPC filed alongwith the suit had met with the rejection. The parties were invited to lead their respective evidence. On closing of the same, arguments were addressed.
Plaintiff's evidence
8. Plaintiff on its behalf tendered examination affidavit of PW-1 Sh. Punit Lal, partner and exhibited the documents below:
(1) Form A & B (Registration Certificate) issued by the Registrar of Firms as Ex. PW-1/1 (Colly.).
(2) GPA dated 24.05.2022 as Ex. PW-1/2. (3) Tax invoice, receipt of articles and e-way bill as Ex. PW-1/3 (colly.).
(4) Account ledger statement dated 01.04.2021 to 31.03.2022 as Ex. PW-1/4.
(5) Email dated 28.05.2022 as Ex. PW-1/5. (6) Ledger account statement dated 01.04.2021 to 31.03.2022 as Ex. PW-1/6.
Harsh International Vs. Springer Mattresses Page No. 13 of 38 (7) Registration of defendant No. 1 under the Goods and Services Tax as Ex. PW-1/7.
(8) WhatsApp messages between Punit Lal and Anuj Agarwal as Ex. PW-1/8.
(9) WhatsApp messages between Punit Lal and Manish Kumar as Ex. PW-1/9.
(10) Accounts Statement dated 01.04.2020 to 31.03.2021 as Ex. PW-1/10.
(11) Email dated 28.05.2022 as Ex. PW-1/11. (12) Ledger statement dated 01.04.2021 to 31.03.2022 as Ex. PW-1/12.
(13) Email dated 28.05.2022 as Ex. PW-1/13.
Thereafter, PE was closed.
Defendant's evidence
9. On behalf of defendant, Sh. Inderjeet Singh Khurana tendered his examination affidavit and was subjected to cross- examination. No other witness was produced despite initially availing the opportunity for examining other witnesses, no other witness except DW-1 Inderjeet Singh Khurana testified on behalf of defendant, who exhibited the following documents (1) True print of the defendant firm's registration certificate as Ex. DW-1/1.
(2) True print out of the invoices raised by the defendant firm to M/s Cozy Touch Poly Foams Pvt. Ltd. as Ex. DW-1/2 and Ex. DW-1/3.
Whereafter DE was closed.
10. I shall deal with the gist of the cross-examination while deciding both the issues for the sake of brevity of the Harsh International Vs. Springer Mattresses Page No. 14 of 38 judgment. Both Ld. Counsels made their respective final arguments. I have heard the same and have carefully perused the record.
Discussion and Relief
11. I now propose to deal with the analysis of the evidence.
Issue No. 1 and 2I. Debt against Invoice Ex. PW-1/3 in issue
12. The present suit in essence captures broadly the issue of entitlement of plaintiff to recover the amounts due against the supply of chemical, through invoice and delivery challan, Ex. PW-1/3, the proof of which is now under analysis and assessment.
13. The plaintiff has claimed for recovery of Rs. 9,37,215/- against supply of industrial chemicals, from its registered office at GK-II which was delivered to the defendant against invoice/ delivery challan etc. dated 19.03.2021, exhibited during evidence of PW-1 Sh. Punit Lal as Ex. PW-1/3. It is stated that the deliveries were effected and were received without a whisper of objection by the defendant as per tax invoice Ex. PW-1/3, whereafter defendant was obligated to deposit the above amount in the plaintiff's account as per agreed terms of parties as material was supplied on credit basis. A running ledger account in due course of business in respect of transactions was being maintained which account was being audited and maintained in ordinary course of business and showed an outstanding of Rs. 9,37,215/- at the end of the financial year. It is claimed that the defendant did not make the payment despite being followed up, for the aforementioned purpose.
Harsh International Vs. Springer Mattresses Page No. 15 of 38
14. In the cross-examination, PW-1 was asked about Ex. P-2 (collectively), the invoices against which the payments were realised against letter of credit which is admitted. However, the above part of cross-examination is not relevant to facts in hand qua dispute raised in issue, which is arising out of due against invoice Ex. PW-1/3 dated 19.03.2021 and is a single invoice. There is no cross-examination qua Ex. PW-1/3 (colly), i.e. invoice dated 19.03.2021, as well as the delivery challan towards the proof of delivery of material stated above by way of invoice, airway bill and receipt of articles which tantamounts to a deemed admission of its receipt without objection, in which background it is observed that plaintiff has proved the invoice dated 19.03.2021 (Ex. PW-1/3) and the factum of its delivery against the same in favour of defendant.
15. Consequent to above facts being established, the plaintiff brought the evidence regarding the other elements requisite for proving the acceptance and absence of objections qua the quality and quantity being raised in reasonable time as is envisaged under the relevant provisions of Sales of Goods Act.
16. In order to establish that no issue relating to quality was raised as a concern by the defendant till the payment became due and payable, plaintiff stated that vide the supply of chemical was effected in March 2021, no objections till June 2021 were heard from defendant. (As per agreed terms, the payments were to be realized after 30 days credit period). The above is shown through cross-examination as plaintiff was put to confrontation with the WhatsApp message dated 26.06.2021 part of document Ex. PW-1/8., which suggested that no objection qua quality was raised till lapse of more than three months. On being confronted, Harsh International Vs. Springer Mattresses Page No. 16 of 38 the plaintiff (PW-1 Punit Lal) replied that he had received two WhatsApp messages, however, both of which were irrelevant for present suit. He stated that the message dated 23.06.2021 contained image of some chemical. In the message there was a complaint regarding the quality, but clarified that these communications were not pertaining to the present suit and in turn were connected to CS (Comm) 600/2022. He reasserted that above fact, and stated that he had reverted to the message dated 26.06.2021 on the same date to Sh. Anuj Aggarwal (partner of defendant) by incorporating the details of the chemicals which were provided through telephonic conversation by Anuj Aggarwal and sent it back to Anuj Aggarwal, sending the same through email and that the WhatsApp messages were not related to this case but were pertaining to CS (Comm) 600/2022.
17. Intriguingly, there has been no cross-examination to this aspect that the WhatsApp messages raised in question were not irrelevant for arriving at a decision in present case, since they were not connected to the issues raised in dispute in the present suit. The witness was forced to state repeatedly that questions pertaining to him receiving the complaint by way of email and/ or receipt of compliant were pertaining only to CS (Comm) 600/2022 and there was no connection of the above communication with the present suit. In which background, the fact of sale having been perfected without an objection from defendant in reasonable time is established.
18. The defendant then proposed to challenge the suit by denying the liability against documents Ex. PW-1/4 to Ex. PW- 1/14 and doubted the authenticity of statement of account.
Harsh International Vs. Springer Mattresses Page No. 17 of 38
19. Reverting to the statements of account filed by the plaintiff, plaintiff has heavily relied upon the statement of account while the defendant has raised an objection to the mode of proof of all the documents from PW-1/4 to PW-1/13, nothing has been stated specifically qua the genuineness. Defendant alleged that statement of account Ex. PW-1/6 is a manufactured document at the end of plaintiff and feigned ignorance of its contents. At the outset, it be observed that statement of account is pertaining to only one entry of invoice stated in 19.03.2021. The receipt of the copy of the invoice and the supply of material received against the above as well as the delivery are not in dispute. In which background, the entry even if is not proved specifically, at best the suit would be treated to be based on an invoice and not running account. For the sake of arguments, even if the question is raised regarding the statement of account being an inadmissible document, it was required for the defendant to prove that in the absence of statement of account being read, plaintiff would loose its entitlement to seek relief of recovery as is claimed. However, no such statement or material has been brought on record. Both the parties have engaged in lengthy examination and cross-examination, wherein the plaintiff has relied upon an e-mail communication exchanged to it by one Sh. Manish Kumar, who is claimed to be an internal auditor of the defendant. While in the cross-examination, DW-1 Sh. Inderjeet Khurana distanced himself from Sh. Manish stating that he is not their employee and has no status in the defendant firm, he did not dispute the remaining part of statement wherein it has been stated by the plaintiff that the e-mails were forwarded by defendant to Sh. Manish Kumar who then forward it to Sh. Punit Lal, partner Harsh International Vs. Springer Mattresses Page No. 18 of 38 of plaintiff. The stance adopted by defendant to question the authority did not disprove the contents of the email being false and unreliable. Even if it is believed that Sh. Manish Kumar was not the employee of the defendant, the defendant was duty bound to show that the contents of its email were unreliable for the reason of its being bad in probity and in substance. However, apart from distancing the defendant did not come down on the contents and substance of the email. While it was claimed that Sh. Manish Kumar had nothing to do with the defendant, the defendant was not restrained from producing its own record to show actual status of the account of plaintiff. Further, through the above statement, defendant has already challenged the mode of proof of the emails which were then proved by Sh. Punit Lal (PW-1), as the emails were received by him at the aforementioned account. While DW-1 has alleged that SH. Manish Kumar has nothing to do with defendant, there is no explanation that how a message is showing forwarded message as below:
"------------Forwarded message"
From: [email protected] <[email protected]> Date: Sat, 28 May 2022 at 2:06 PM Subject: Account Ledger_HARSH INTERNATIONAL To: <[email protected]>"
20. In his statement in response to the question that Sh. Manish Kumar is an independent person and has no connection with the defendant, the plaintiff specifically replied that he is the internal auditor defendant's firm and sits at the office of defendant. He then pointed to Ex. PW-1/5, an email which was forwarded to plaintiff and defendant both. Though he admitted Harsh International Vs. Springer Mattresses Page No. 19 of 38 that it was sent from his personal email, it was reasserted that the email has been sent to another group entity of the defendant (M/s Coirfoam (India)) as well as to the plaintiff as he as shown to be internal auditor of the Coirfoam, he was a common staff looking after the work of all group companies of the defendant's.
21. Moreover, no reason has been stated by defendant for not producing its own statement of account, kept in due course of business pertaining to the account of plaintiff, which conduct is giving more strength to the statement of plaintiff that the substance of the emails forwarded by Sh. Manish Kumar reflected the correct details of the statement. In aforesaid circumstances, while the plaintiff proved the delivery of material and supply as well as the statement of account, since no cross- examination has been specifically raised to dispel its authenticity which otherwise tantamounts to being a competent document for reliance under provisions of Section 34 of Indian Evidence Act and as also made a claim based on the aforementioned, the defendant could not come with any material to controvert the aforementioned claim on the ground of quality and substance of the supplies being bad, detrimental and harmful to its finance and reputation as had been stated repeatedly in the written statement as well as examination affidavit. Defendant could also not show any authority to voice the issue pertaining to Cozy Touch being a defence to thrawt the claim of plaintiff in present like manner without making Cozy Touch a party to the proceedings. Moreover, no actual loss could be proved to the defendant who admitted to have received the payments from M/s Cozy Touch and did not file any statement of account to show any loss. In Harsh International Vs. Springer Mattresses Page No. 20 of 38 circumstances above, the issue No. 1 rests in favour of plaintiff in preponderance of probabilities.
II. Issue regarding quality
22. While no issue regarding genuineness of invoice Ex. PW-1/3 and receipt of deliveries against the same is raised, defendant disputed the liability on the ground of quality concerns and alleged that it led to manufacturing defect in foam, which was made using the chemical supplied by plaintiff. Since the above is intended to set as 'context' by the defendant as a cause for denial, the issue was required to be proved by defendant. Defendant admitted that there was no complaint prior to material supplied in March 2021. During examination/ cross-examination of plaintiff, it was stated that the plaintiff was importing the chemical from different countries such as Korea, Singapore, Japan and China, based on the best offers. The chemicals were received in sealed drums and there used to be an analysis report from the particular/ respective manufacturer. The material was supplied in the "same condition".
23. The witness further insisted that against the orders of defendant, supplies were made of top order material and drums were in sealed condition. The defendant has raised no cross- examination on the receipt of material in any condition other than stated above. It is defendant's own case that it sold the material. No where it is claimed by defendant that till the final outcome of foam manufactured, any occasion for raising suspicion qua the quality of chemical arose. It is admitted that material was not used by defendant itself, but by M/s Cozy Touch as an other independent company which was receiving material directly from Harsh International Vs. Springer Mattresses Page No. 21 of 38 plaintiff as well. In such background, defendant was duty bound to prove the use of same chemical by M/s Cozy Touch, which was procured against Ex. PW-1/3 from plaintiff. However, the defendant has not led any clear evidence in support of above.
24. In an attempt to establish the above, PW-1 was asked as whether bad quality production could result from bad quality chemical to which, though PW-1 admitted that bad quality chemical may be a cause for bad quality manufacturing, he added that other chemicals used for mixing may be responsible for quality issues. His elaboration is extracted as below (Question No. 11 of cross-examination dated 31.03.2023):
"Ans. It may happen. However, the chemicals imported by us used to be of highest standards and there was 99.99% guarantee that there was no defect in the quality of the chemicals imported and supplied by us. No complaint of quality was ever received from any other buyer. I wish to further add that many chemicals are added/used in manufacture of PU Foams apart from the chemicals supplied by us and the quality of the other chemicals could affect the quality of the foam produced by the defendant."
25. The import of above answer further burdened the defendant to prove that not only the quality of chemical supplied by plaintiff was poor, which led to defective and unusable production of foam, but also that the quality of other chemicals mixed was impeccable, besides the mixing order and process of manufacturing as well was fault free.
26. It is pertinent to note that in cross-examination PW-1 had stated persistingly that plaintiff made no intervention at any stage with sealed drum of chemical which was directly supplied to defendant without opening the same. The material was never sold in open drums. Upon the above statement the onus shifted Harsh International Vs. Springer Mattresses Page No. 22 of 38 upon the defendant to establish that while the practice of procurement and supply remained the same, the acts of plaintiff were negligent in supplying the chemical to put the plaintiff under the liability of such acts. However, no such contradiction in practice adopted by plaintiff could be established. PW-1 stated that the quality assessment could have been provided on asking of defendant from the exporter. However, the defendant did not show any evidence to have asked for any quality assessment report through plaintiff. Not even a single email in the said direction is ever produced on record. The defendant did not bring any quality assessment report from its side either.
27. On the other hand, PW-1 detailed that he had informed the partner of defendant that the defendant was using MCL purchased in open condition from local market at Faridabad which was not 'virgin' and in case of use of low quality MCL, the foam may develop cracks and it also had issue of fading of colour. It is admitted that defendant supplied some material from its own site as well as is reflected in reply to question No. 25 which is extracted below:
"Q25. I put it to you that you have sold open stock of TDI chemical to the Cozy Touch Poly Foam Pvt. Ltd. What do you have to say?
Ans. We had some TDI in stock in drums only. We sold that material also along with the material received from the defendant.
It is wrong to suggest that Ex. DW1/2 is a false and fabricated document. It is wrong to suggest that defendant firm had prepared Ex. DW1/2 falsely in order to present the false claim against the plaintiff. It is wrong to suggest that no chemicals and articles were supplied by the defendant firm to the Cozy Touch Poly Foam Pvt. Ltd."
Harsh International Vs. Springer Mattresses Page No. 23 of 38
28. There is no rebuttal or cross-examination of PW-1 on this. There is no denial that defendant was not engaging in purchase of open drum of chemical from other vendors. There is no denial that the said chemical was not reused and processed and that such use could not have resulted in defective production. For want of proper cross-examination, the defendant could not establish that the process of mixing of material at the end of manufacturer and use of chemical purchased through other vendors could have led to the only conclusion of the material supplied by plaintiff being defective.
29. In which background, it became necessary that defendant should have established that the material used for M/s Cozy Touch had resulted in damages indeed was the same material that had been received from the plaintiff. For want of any record, the said fact could not be established. In which background, defendant virtually brought no evidence to show that the material that resulted in loss and damage to the M/s Cozy Touch was material which was received from the plaintiff and was responsible for causing such loss, in which background the allegations of poor material being supplied by plaintiff is not established.
30. In alternative, defendant through independent witnesses also could have established that the material supplied by the plaintiff was responsible for damage. However, there is no quality test report or independent expert view or opinion brought in evidence to establish any such fact that the material of plaintiff was defective.
31. DW-1, who deposed in its support, is a partner of defendant M/s Springer Mattresses. No where it has been stated Harsh International Vs. Springer Mattresses Page No. 24 of 38 that he is a qualified person to judge the quality of the material. In which background, when it is alleged that end product was damaged on account of bad quality chemical, it must have been supported with evidence of an expert or some capable witness. There is no such evidence at all, no where defendant been detailed any specific cause or assignable reason or fault as how by using the chemical received from plaintiff, the end product resulted in brittleness, discolouration and was unable for use by way of sale. The competence of DW-1 to have assessed the quality of chemical came under scanner during cross- examination which is extracted as below:
Q-31. Did the defendant firm get the Polyol chemical tested, which was supplied by the plaintiff vide invoices EX. PW1/3 (colly), from any laboratory? Ans. No, we did not get the chemicals tested in any lab. Vol. We are in the business for last 15 years of manufacturing PU Foam in which this chemical is used. We never got any chemical tested and we never faced any problem. The plaintiff was supplying chemical to us for last 10-12 years and we had never faced any problem before. Hence, we did not find it necessary to get it tested.
Q-34. Did the defendant firm get the Polyol and TDI chemical tested, which was purchased from other suppliers from any laboratory?
Ans. I bought, they were not tested.
Q-35. I put to you that there is no lab report of the alleged defective chemicals and there is no testing report of the alleged malformed PU foams as there was no defect in the chemicals and there was no defective production due to those chemicals. What do you have to say Ans. We have been making foam for the last 15 years and we have never faced any problem regarding quality Harsh International Vs. Springer Mattresses Page No. 25 of 38 of polyol and TDI. Hence, we did not think it necessary to get these materials tested. I have already given the reasons for not getting lab reports. Further, plaintiff had admitted the defects.
It is incorrect that I am giving false answer to the question no. 35."
32. It is again required to be taken note that the defendant was well within its right to have procured a test report on the quality of the material and place the same. No steps in the said directions have been taken. Interestingly, even the alleged material which has suffered damage at the end of manufacturing is not brought in evidence by any video or photo evidence manner. Defendant has virtually shut all roads to question the process of manufacturing adopted by M/s Cozy Touch and no opportunity whatsoever is made available to assess, that apart from chemical any other factor like mixing and/ or the environment and/or knowledge and competence of the person manufacturing it, could have also contributed to such damage.
III. Assurance of replacement
33. It is intriguing to note that after suggesting the defect in chemical defendant claimed its entitlement on the ground of admission of such defect by plaintiff and alleged that he was assured by plaintiff for replacement. The said admission is inferred from the act of PW-1 in writing a WhatsApp to defendant and asking him to return it on email. Needless to say that the relevance of the said WhatsApp is already discussed as irrelevant to this suit in forgoing paras. The defendant also relied on photographs of foam which was defective on production. However, the defendant did not make any photographs available Harsh International Vs. Springer Mattresses Page No. 26 of 38 till 27.09.2021, whereafter plaintiff despite intention did not find any reason for raising the issue with exporter. However, mere asking for photographs to raise the issue with exporter is not a sufficient evidence to construe admission of defect by plaintiff. Moreover when plaintiff denied that the defendant had supplied the same material which he had delivered to defendant vide invoice No. 80 of 19.03.2021 Ex. PW-1/3 collectively.
IV. Issue regarding financial loss and/ or loss of reputation of defendant as mitigating factor
34. While defendant could not deny or dispute the factum of a transaction having been made against supply in its favour, it is pertinent at this stage to test the veracity of the assertion that it held no liability to make any payment in favour of plaintiff for having suffered the financial damages and loss of reputation to the material being defective. In order to claim that defendant suffered loss and was not liable to make any payment despite admitting the receipt and realization of the chemical supplied vide invoice dated 19.03.2021, the defendant was duty bound to prove the losses caused to it. It is interesting to note that the plea above is entwined with the defendant's capacity, competence and capability to raise any such plea in first place. This being for the fact that defendant is not the consumer of chemicals but a supplier and has proposed to raise the assertion on ground of being the sister concern/ group company of the alleged loss bearer. This makes it imperative to check the depth of the plea as under:
Harsh International Vs. Springer Mattresses Page No. 27 of 38
(a) Plea of sister concern
35. In view of above plea the question that needs to be responded by defendant is: whether on such ground of "sister concern/ group companies" the defendant can claim waiver of its liability or mitigation of loss?, as defendant M/s Springer Mattresses claimed/ asserted that it supplied the chemicals received from plaintiff to other companies claiming them to be its sister/ group entities. However, it be observed that no such concept of "sister concerns" or "group of companies" is recognized between two legal entities who are keeping separate accounts in the name of their own separate legal persona and are coming out to trade/ do business and/ or engage in manufacturing in such independent names. It is recognized that such legal entities are individually liable qua the transactions maintained and perfected under its name which is recognized as trade name for carrying such businesses and are liable to keep separate account books in general course of business. Such entities are separately, independently and individually amenable for being taxed and audit of their accounts as per law. In which background the issue regarding status stretches to the issue of locus also needs to be established by defendant which neither holds joint status in terms of law nor business, in which background how an alleged loss of a private limited company i.e. M/s Cozy Touch can be espoused and raised by M/s Springer Mattresses (defendant herein), it is a doubtful question.
36. The contention relating to sister concern in fact had been kept in view by Ld. Predecessor as well, while dismissing the application under Order 39 Rule 1 and 2 CPC. Both the parties despite having run the trial from 2022 onwards and Harsh International Vs. Springer Mattresses Page No. 28 of 38 having claimed the contentions of transactions, have not brought forward any judgment or provision to suggest that the debts and assets of the other legal entity albeit being managed by the same partner in a distinct capacity as director under separate legal entity having its own memorandum of articles and articles of association can be brought in issue for settlement through judgment in legal process without there being a merger or acquisition of assets and liabilities by agreement. The scope of maintaining and norms for holding the accounts in case of companies is distinctly provided under Section 236 of Companies Act, under which M/s Cozy Touch must have been maintaining its own account whereas the present defendant being a partnership is governed by general accounting practice suggested under the law of contract which entries are to be maintained under Section 6 of Income Tax Act for purpose of tax assessment as the partnership firm enjoys more condensed and less formal structure unlike a public or private limited company.
37. As from above, it is observed that defendant could not espouse any concern of a separate legal entity in present like manner, the defendant was left with only alternative to prove any losses its suffered due to acts of plaintiff. However, while raising the above ground it is impliedly admitted that defendant did not suffer any actual loss caused by manufacturing. In which case, loss if any is assignable to the manufacturer and unless the defendant is shown to have compensated the manufacturer under the knowledge of plaintiff, and/ or has made the manufacturers a party to the suit as a suer in claim filed in counter, the eligibility Harsh International Vs. Springer Mattresses Page No. 29 of 38 to claim under the loss under the shelter of sister concern which admittedly is a third party cannot be sought for mitigation.
38. In circumstances as the above, the issues pertaining to quantity/ quality on the ground of spoiling of the end product by its usage would have been raised by the end user/ manufacturer, in this case M/s Cozy Touch. There is no material to suggest that M/s Cozy Touch had made any complaint to supplier trader M/s Springer Mattresses in writing and/ or orally. There is no email, WhatsAppp chat and/ or letter directly or indirectly naming M/s Springer Mattresses as the party in loop as trader having supplied the material being informed of the grievance of the product having turned out of poor quality due to usage of material supplied by it, giving any right to M/s Springer Mattresses to raise any issue of loss of reputation or finance with the plaintiff. Just for the reason that Sh. Inderjeet Singh Khurana, partner of Springer Mattresses happens to be the director of M/s Cozy Touch would not automatically in the realm of law pass on an authority in his favour to raise a dispute in dual capacity while maintaining separate entities in two separate legal personalities i.e. one being a partnership firm (Springer Mattresses) and M/s Cozy Touch (being a private limited company) under distinct provision of management control, supervision and platforms. The above aspect has not been stated.
39. Moreover, the mode in which the accounts of defendant's and M/s Cozy Touch are maintained is also giving rise to doubt qua its acceptance as being held as correct entries in proper manner for which the defendant did not file any document to show that it did not realize any payment against sale of chemical received against Ex. PW-1/3 from M/s Cozy Touch.
Harsh International Vs. Springer Mattresses Page No. 30 of 38 DW-1 admitted that both were not sister concerns and no record qua payment realized/ unrealized is filed on record.
40. For the sake of appreciation of arguments, at this stage, it may also be probed that even if the defendant would have established that the material belonging to plaintiff had caused damage to the end product i.e. mattresses manufactured by M/s Cozy Touch, could defendant had gained the confidence to make the plaintiff liable as there is no record by way of its own account statement that any damage had been suffered by the defendant. The defendant admitted that it had received the payments from M/s Cozy Touch against the supply of material which tantamounts to proof that defendant had not suffered any actual damage. No evidence has been brought to show any loss of reputation by way of any complaint etc. for delay in supplies of foam even by M/s Cozy Touch least the defendant and despite admitting that defendant and M/s Cozy Touch are not sister concerns, there is no evidence that there is any stoppage of business between both the entities and/ or any third party had stopped relying upon defendant for making purchases which had caused any loss measurable in terms of the provisions of Section 73 and 74 of Contract Act for being adjusted against the entitlement of the plaintiff. In any case, the defendant being a third party as discussed above, has failed to show any damage to it and/ or competence to claim on behalf of M/s Cozy Touch.
V. Issue regarding authenticity of of invoices tendered by defendant
41. In view of discussions above, where the defendant could not show any denial of payment from M/s Cozy Touch Harsh International Vs. Springer Mattresses Page No. 31 of 38 against supplies, no material in evidence is brought to suggest any entitlement to deprive the plaintiff of its dues. In order to strengthen its ground defendant has effected entries in account which are doubted by plaintiff. Plaintiff then has raised issue regarding authenticity of invoice Ex. DW-1/2 and DW-1/3, print outs of invoices raised by M/s Springer Mattresses to M/s Cozy Touch, on the ground that the documents are fabricated. In order to contest the genuineness of both the documents, DW-1 Sh. Inderjeet Singh Khurana was specifically shown the documents during his cross-examination the question below:
"Q-26: Why the defendant firm has mentioned two different dates in Ex. DW1/2 at point A & B?"
To which the witness replied as below:
"Ans: I can comment the same only after consulting my accountant Mr. Pradeep as he has put the same."
42. The nature of the answer is apparently evasive and contrary to the contents of the document. While in the earlier part of cross-examination, it was admitted that material sent by the plaintiff was received by the defendant against Ex. PW-1/3 on 20th or 21st March 2021, the defendant had transferred the chemical to M/s Cozy Touch on 31.03.2021. In this background, the invoice Ex. DW-1/2 which is showing date of 31.03.2021 is against pre-dated bill No. 4261 of 18.03.2021. There is no clarification as how a pre-dated bill even before receipt of chemical from plaintiff can be raised against an invoice of 31.03.2021. Ex. DW-1/2 and Ex. PW-1/3 both the invoices are unsigned for the dispatcher M/s Springer Mattresses as well as on behalf of receiver M/s Cozy Touch. The objection to the mode of proof of document Ex. DW-1/2 and Ex. DW-1/3 were Harsh International Vs. Springer Mattresses Page No. 32 of 38 specifically raised and the issue was kept open for decision at the stage of final arguments. Ld. Counsel for the defendant who claimed that Ex. DW-1/2 and Ex. DW-1/3 were the computer prints out, omitted to see that these were bearing photocopy signatures on Ex. DW-1/2 at the place for Springer Mattresses's "authorized signatory". The aforesaid clearly shows that it is not a print out but a photocopy of a duplicate copy. In the said background the defendant was duty bound to produce the originally kept copy of the aforementioned invoices in order to prove the genuineness of both the documents having been prepared in the due course of business as per the practice subject to audit and accounts. However, no effort in the said direction is made. It is also necessary to take note that while exhibiting the aforesaid bills/invoices, DW-1 did not bring any statement of account or ledger pertaining to M/s Cozy Touch to show the authenticity of the accounts being maintained suggesting clear entries having been kept in due course of business.
43. Not only above, the defendant did not produce any delivery slip or challan to show that the material stated to have been procured against invoice Ex. PW-1/3 and receipt against above was in fact at any stage supplied to M/s Cozy Touch. For want of any delivery, the fact that the defendant engaged in supply of material received against Ex. PW-1/3 to third party M/s Cozy Touch was not established. More so, when Cozy Touch is not a party to the present proceedings and has not come forward with its own record. In the background, the plaintiff could have availed the opportunity of summoning a witness from M/s Cozy Touch, may be an account officer who could have produced the requisite record to show the receipt of invoice, Harsh International Vs. Springer Mattresses Page No. 33 of 38 delivery slip and the entries of receipt of the material allegedly traded by defendant No. 1.
VI. Absence of Legal Notice and its effect?
44. The witness has been asked regarding sending of the prior legal notice before filing the suit. It is admitted by the plaintiff through PW-1 that there is no legal demand notice sent prior to filing of the suit. The question again arise is whether non-filing of legal demand notice would give no cause of action in favour of plaintiff to seek the recovery of the claim which is not answered by the defendant, though is argued half-heartedly. It is observed that the suit of the plaintiff is arising out Sales of Goods Act. The provisions clearly suggest about the sales having been effected on supply of goods asked against consideration. There is no defect pointed out against the goods by the defendant who has consumed as per his own assertion by trading it in favour of the third party from whom the payments are also received. In which background, mere not sending of legal notice would not tantamount to an act fatal filing of the suit.
VII. Jurisdiction
45. The defendant has denied the jurisdiction of present Court and has claimed that plaintiff is not entitled to any relief for the reason that no part of cause of action arose within the territorial jurisdiction of this Court. It was claimed that defendant entity is based out of Una, Himachal Pradesh. It has been claimed that all the business orders were placed from Himachal Pradesh and deliveries were received at Himachal Pradesh, in view of which the plaintiff has been misguided in the filing the suit under Harsh International Vs. Springer Mattresses Page No. 34 of 38 the present jurisdiction. In cross-examination to PW-1, he denied the aforementioned contentions and stated that the orders from defendant were received at Delhi and the supplies were effected from Delhi. Even the payments were accounted and kept at plaintiff's Delhi office. The law in respect to the aforesaid is well settled in Patel Roadways Limited Vs. Prasad Trading Company (1991) 4 SCC 270.
46. While the plaintiff stated that the orders were received at its office from defendant consequent to the personal visits of Sh. Inderjeet Singh Khurana, this fact is not specifically disturbed in cross-examination. There is no effective cross- examination to prove that the payments were not realized and settled at Delhi Office wherefrom the deliveries were also directed and the statements of account were maintained. The contentions that Delhi Court does not hold a territorial jurisdiction under Section 20 C, where a part of cause of action is revealed to have arisen, the defendant was duty bound to bring cogent material by way of evidence to dispute the same. However, except of suggestion nothing substantial in form of evidence is brought to controvert the plea.
VIII. Interest
47. The above discussion brings me to decide issue of interest. The plaintiff has claimed interest @ 18%. The provisions of Section 34 CPC are enabling procedure for granting of a higher rate of interest when the transaction is established to be a commercial one. Further there is no cross- examination specifically to deny Ex. PW-1/3, which being an Harsh International Vs. Springer Mattresses Page No. 35 of 38 invoice is to be regarded as a contract between the parties, which shows the terms and conditions below:
"........................... interest @ 18% will be charged after due date."
48. Even in the cross-examination, which is extracted below, the rate of interest is specifically mentioned:
Q-75 I put to you that there is no agreement between you and the defendant for the payment of interest @ 18% per annum on the delayed payments, if any. What do you have to say?
Ans. It is incorrect. The condition for payment of interest @18% on delayed payment is mentioned on all my invoices.
Q-76 Is it correct that in the invoices there is no agreed date of payment?
Ans. As per mutual understanding the payment had to be made within 15-20 days.
Q-77 I put to you that there was no such mutual understanding that the payment had to be made within 15-20 days from the date of invoice. What do you have to say?
Ans. It is incorrect.
49. The plaintiff has been subjected to cross-
examination regarding "due date" and has stated that the credit for period for 15-30 days was made available in terms of the relations kept by the parties. There is no dispute or denial to the inference that due time of credit available to defendant was for 15-30 days in the invoices. The witness had added that the credit period was for mutual understanding. Despite the cross- examination at length, there is no material cross or arguments to suggest that parties were not 'ad-item' on the point of liability to pay interest @ 18% and/ or the invoice cannot be treated as a Harsh International Vs. Springer Mattresses Page No. 36 of 38 valid contract for claiming such interest for want of proving any consent or valid agreement qua above. In which case the invoice being a contract for interest @ 18% is established and after 30 days interest after the issuance of the invoice, plaintiff is entitled for pendente lite interest in view of law laid down in Varinder Singh Vs. MCD, CS(OS) No. 1309/2009 of Hon'ble Delhi High Court DOD 01.05.2013. In preponderance of probabilities, this issue is also decided in favour of plaintiff.
50. Hence, the suit of the plaintiff is decreed for an amount of Rs. 9,37,215 alongwith interest @ 18% p.a. pendete lite till realization alongwith cost on account of Court fee @ Rs. 11,520/-. As counsel's fee certificate is not filed, an amount of Rs. 10,000/- is awarded towards the same.
51. Decree sheet be accordingly drawn.
52. File be consigned to record room after completion of the necessary formalities.
Announced in open Court (Nirja Bhatia)
today on 20th March, 2024 District Judge
(Comm. Court) (Digital-07)
South-East, Saket Court, New Delhi
Harsh International Vs. Springer Mattresses Page No. 37 of 38
CS (Comm) 599/2022
Harsh International Vs. Springer Mattresses and ors. 20.03.2024 Present: Ld. Counsel for the plaintiff alongwith plaintiff in person.
Ld. Counsel for the defendant.
Vide separate judgment announced in open Court today, the suit of the plaintiff is decreed for an amount of Rs. 9,37,215/- alongwith interest @ 18% p.a. pendete lite till realization alongwith cost on account of Court fee @ Rs. 11,520/-. As counsel's fee certificate is not filed, an amount of Rs. 10,000/- is awarded towards the same. Decree sheet be accordingly drawn.
File be consigned to record room after completion of the necessary formalities.
(Nirja Bhatia) District Judge (Commercial) (Digital-07) South-East, Saket Courts, Delhi 20.03.2024 Harsh International Vs. Springer Mattresses Page No. 38 of 38