Delhi District Court
M/S Sharma Electricals vs M/S Dev Engineers on 8 August, 2022
IN THE COURT OF MS. NEHA GARG,
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
CNR No:DLCT030058762019
CS SCJ No.2530/2019
M/s Sharma Electricals
situated at 3661, Gali Shahtara,
Behind Shardanand Marg,
G.B. Road, Delhi110006.
Through its Proprietor
Sh. R.A. Tiwari. .............. Plaintiff
Versus
1.M/s Dev Engineers Proprietor Sh. Sanjeev Kumar @ Rikesh R/o House No. E1574, Uttranchal Colony, Gali No.15, Loni, Ghaziabad, (U.P.)
2. Sh. Sanjeev Kumar @ Rikesh Proprietor of M/s Dev Engineers R/o Opposite E8/279, Uttranchal Colony, Gali No.8, Loni, Ghaziabad, (U.P.) .........Defendant Date of institution of suit : 16.08.2019 Date on which reserved for judgment : 08.08.2022 Date of pronouncement of Judgment : 08.08.2022 CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 1 of 9 SUIT FOR RECOVERY OF RS.2,67,362/.
EXPARTE JUDGMENT:
1. The present suit has been filed for recovery of Rs.2,67,362/ against the defendant. The present suit was earlier filed under Order 37 CPC, however, subsequently, the present suit was converted into an ordinary suit of recovery.
The brief facts as stated in the plaint are that the plaintiff is the proprietor of M/s Sharma Electricals situated at 3661, Gali Shahtara, behind Shardanand Marg, G.B. Road, Delhi110006 and deals in electrical goods as Swadeshi Cables, Havell's connect well, Vaishno Kaycee and Indotech etc. That the plaintiff had business dealing with the defendant and plaintiff on the order of defendant on different dates, supplied the various electrical goods time to time to the defendant. That the defendant had been purchasing the electrical goods on credit basis from the plaintiff and the plaintiff has been maintaining an open and running account in the name of defendant's firm in his regular course of business. That on the specific order of the defendant, the plaintiff had supplied the electrical goods on different dates to the defendant time to time against the invoices. That the plaintiff has supplied the electrical goods on different dates against the various invoices and the defendant had paid part payment of some of the invoices of electrical goods received by the defendant. That defendant has lastly made a CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 2 of 9 part payment of Rs. 55000/ to the plaintiff and Rs. 2,36,752/ is still due against the defendant. That the plaintiff had supplied the electrical goods to the defendant on different dates against the invoices No T23912 dated 13.09.2016 of Rs. 79,131/, invoice No. 23922 dated 15.09.2016 of Rs. 3648/, invoice No. T24482 dated 17.12.2016 for Rs. 11,415/, invoice No. T24902 of Rs. 27701/, invoice No. T24903 of Rs. 6919, both dated 16.02.2017, invoice No. 722 of Rs. 48,532, invoice No. 725 of Rs. 12,966/ both dated 29.08.2017, invoice No. 3733 of Rs. 43,925/ dated 17.03.2016, invoice No. 3870 of Rs. 5309/ dated 24.03.2018. That against the said balance amount, defendant had issued two cheques bearing No. 158711 dated 15.03.2019 amounting to Rs. 1,00,000/ and cheque No. 043603 dated 02.04.2019 amounting to Rs. 1,36,752/ both drawn on Dena Bank, G.B. Road Branch, Delhi110006 in favour of plaintiff. That however, the both the aforesaid cheque when presented for encashment, the same were returned dishonoured with remarks "Insufficient Funds" on 06.04.2019. That thereafter plaintiff has made so many requests, personally as well as telephonically, for payment of balance amount but on one pretext or the other the defendant has made excuses of making the payment. That ultimately the defendant had flatly refused to make the payment of electrical goods received by the defendant from the plaintiff. That thereafter finding no other option, the plaintiff had sent a legal notice dated 08.04.2019 demanding invoice/principal amount of Rs. 2,36,752/ along with interest @24% per annum amounting to Rs. 28410/ and legal notice/postal CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 3 of 9 expenses i.e. Rs.2200/ totaling to Rs. 2,67,362/. That despite receiving of aforesaid legal notice, the defendant has not made the payment. That the defendant is liable to pay the invoices amount of Rs. 2,67,362/ along with future interest @ 12% per annum till realization of the amount. Hence, the present suit.
2. Summons of the suit were issued to the defendant and the defendants have been served via whatsapp on 03.03.2022. However, despite service none has appeared on behalf of defendant and therefore the right of the defendant to file WS was closed and defendant was proceeded exparte vide order dated 04.04.2022.
3. Thereafter, evidence was led on behalf of plaintiff and the AR of the plaintiff was examined as PW1. PW1 tendered his evidence by way of affidavit Ex.PW1/A. PW1 relied upon the following documents: Ex.PW1/1 : Original invoice No.T23912.
Mark A : Copy of invoice No.23922.
Ex.PW1/3 : Original invoice No.T24482.
Ex.PW1/4 : Original invoice No. T24902.
Ex.PW1/5 : Original invoice No. T24903.
Ex.PW1/6 : Original invoice No. 722.
Ex.PW1/7 : Original invoice No. 725.
Ex.PW1/8 : Original invoice No. 3733.
CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 4 of 9
Ex.PW1/9 : Original invoice No. 3870.
Ex.PW1/10 : Statement of account.
Ex.PW1/11 : Original cheque No.158711.(The same has
been inadvertently mentioned as cheque
bearing No. 13641 in affidavit of
evidence.).
Ex.PW1/12 : Cheque return memo.
Ex.PW1/13 : Original cheque No. 043603.(The same
has been inadvertently mentioned as
cheque bearing No. 13642 in affidavit of
evidence.).
Ex.PW1/14(colly): Cheque return memo.
Mark B : Copy of legal notice dated
08.04.2019.
Ex.PW1/16 : Original postal receipt.
Ex.PW1/17 : Certificate u/S 65B of Indian
Evidence Act.
Sh. Neeraj Sharma, was examined as PW2. PW2 tendered his evidence by way of affidavit Ex.PW2/A. PW2 relied on the statement of account already Ex.PW1/10.
Thereafter, Exparte PE was closed upon separate statement of AR of the plaintiff. Thereafter the matter was listed for Exparte final arguments.
CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 5 of 94. Exparte final arguments advanced by Ld. Counsel for the plaintiff were heard. Case file perused.
5. The present suit has been filed on the basis of open running and non mutual account between the parties. As per the judgment of Hon'ble High Court of Delhi in Bharath Skins Corporation Vs. Taneja Skins Company Private Ltd. RFA(OS) 13/2002 that when the account between the parties is open, running and nonmutual, the period of limitation has to be calculated as per Article 113 of the Limitation Act, 1963. Under Article 113 of the Limitation Act, 1963, the period of limitation for filing of a suit is three years and the same begins to run when the right to sue would accrue when claim was denied in response to legal notice. In the present case, defendant has acknowledged his liability by issuing two cheques dated 15.03.2019 and 02.04.2019 Ex.PW1/11 & Ex.PW1/13 respectively, therefore, the suit has been filed within the period of limitation. This court has jurisdiction to try the present suit.
6. Plaintiff has claimed recovery of principal sum of Rs.2,36,752/. The invoices Ex.PW1/1 to Ex.PW1/9 show that the goods were supplied to the defendant and statement of account Ex.PW1/10 further reflects the outstanding balance of Rs.2,36,752/ against defendant. Defendant has further acknowledged his liability by issuing cheques Ex.PW1/11 and CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 6 of 9 Ex.PW1/13 for a sum of Rs. 1,00,000/ and Rs. 1,36,752/ respectively.
On the other hand, despite the notice of the suit in hand, defendant has not appeared before the Court to either dispute the case of the plaintiff. As such, the entire evidence led by the plaintiff goes unrebutted and since the defendant has chosen to remain absent, therefore, there is no reason for this Court to disbelieve plaintiff's version.
7. Plaintiff has claimed pre suit, pendente lite and future interest @ 12% per annum. Invoices provide that interest @ 24% per annum will be charged if invoice is not paid.
It is settled law that plaintiff can be allowed to charge reasonable interest, whether in the form of penal interest or normal interest and the charging of unnecessary interest and other charges are totally contrary to the public policy and same is also against the well settled principles as postulated in Section 23 of Indian Contract Act. I have profit to refer the judgment of Double Bench of Hon'ble High Court of Delhi in Pt. Munshi Ram and Associates (P) Ltd vs DDA, 2010 SCC online Del 2004 with provides that higher rates of interest which are against public policy, can be struck down by Court by finding such a rate of interest to be against the public policy. Any contract which is against public policy, is void, as per Section 23 of Indian Contract Act, 1872. The said judgment was also relied upon by Hon'ble Single Bench of Hon'ble High Court of Delhi in case bearing R.F.A. No. 823/2004 titled as Sh. Sanjay Mittal vs Sunil Jain CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 7 of 9 decided on 07.12.2018. The Hon'ble Single Bench has granted interest @ 9% per annum instead of 24% i.e. 2% per month.
Considering the aforesaid ratio laid down by Hon'ble High Court of Delhi and the settled law, pendente lite and future interest on the amount of Rs. 2,36,752/ at the rate 6.5% per annum from 08.04.2019 i.e. the date of the legal notice, seems to be sufficient to meet the ends of justice.
8. Plaintiff has also claimed legal notice/postal expenses of Rs. 2200/. Order XXA CPC deals with costs and Rule 1 of Order XXA CPC provides that the Court may award costs in respect of expenditure incurred on any notice which is required to be given by law before the institution of the suit or any notice which, though not required to be given by law, has been given by any party to the suit to any other party before the institution of the suit. Section 35 of CPC further provides that cost of suit shall be in the discretion of the Court and the Court has full power to determine the costs of the suit. The legal notice charges of Rs. 2200/ claimed by plaintiff appears to be reasonable and plaintiff is entitled to recovery of the same as part of the cost of the suit.
Relief:
9. In view of aforesaid discussion, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is held entitled to recover an amount of Rs.2,36,752/ along with interest @ 6.5% per annum CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 8 of 9 from 08.04.2019 till its realization from the defendant.
Cost of the suit, including legal notice charges of Rs. 2200/, are awarded in favour of the plaintiff to be paid by the defendant.
Decree sheet be prepared accordingly.
File be consigned to the record room after necessary compliance.
Announced in the open (NEHA GARG)
court on 08.08.2022 Civil Judge1, Central District,
Tis Hazari Courts, Delhi
CS SCJ No.2530/2019 M/s Sharma Electricals vs M/s Dev Engineers Page 9 of 9