Delhi District Court
M/S Cms Computers Ltd vs M/S Orient Craft Infrastructure Ltd on 29 November, 2014
Suit No.523/14
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01
(South) SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.523/14
Case ID No.:02406C0025312011
M/s CMS Computers Ltd.
(CMSNVL Division)
Registered office at
201, Arcdia, Nariman Point
Mumbai400021. ........Plaintiff
Versus
M/s Orient Craft Infrastructure Ltd.
Through all or any of its CMD
MD or Director/s
305,5152, Gedore House,
Nehru Place, New Delhi110019.
2. CMD/ Director/s. .......Defendants
Date of institution :04.02.2011/20.01.2014
Date of reserving the judgment :Nil
Date of pronouncement :29.11.2014
Decision :Decreed with costs.
SUIT FOR RECOVERY OF RS.2,15,255/( TWO LAC FIFTEEN
THOUSAND TWO HUNDRED AND FIFTY FIVE RUPEES ONLY)
Present: Ld. Counsel for plaintiff.
M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 1 of 10
Suit No.523/14
JUDGMENT:
The plaintiff has filed the present suit seeking recovery of Rs.2,15,255/ (Two Lacs Fifteen Thousand Two Hundred and Fifty Five Rupees only) along with interest at the rate of 24% per annum and monthly rests till realization with costs.. Plaintiff's Version as per the plaint:
2. Succinctly, the facts as averred by plaintiff that plaintiff is duly incorporated company and Sh.Shiba Charchi, Assistant Manager (HR) is the authorized representative of the plaintiff who is well conversant with the facts of this case. It is stated that he is duly authorized and competent to sign and verify the pleadings and institute the suit as per resolution dated 03.01.2011.
3. It is submitted that plaintiff is supplier of Hardware and Software including professional Camera and allied items of leading brands. It is averred that defendant used to place order for different products as per requirements which were duly executed. In course of business the defendants placed purchase order dated 22.01.2008 referred as CMSNVL/DLS/Rs./15/07.01.2008 for supply goods worth of Rs. 2,56,256/ and the goods were supplied. Details are as under:
Sr. No. Invoice No. Date Amount
1 7000905 11.02.2008 Rs. 92,456/
M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 2 of 10
Suit No.523/14
2 7000963 28.02.2008 22880/
3 800001 03.04.2008 1,40920/
Total Amount of Rs. 2,56,256/.
Payment received on 04.02.2008 Rs. 1,28,128/.
Balance outstanding of Rs. 1,28,128/.
4. It is stated that outstanding amount was not paid despite various requests and issuance of legal notice dated 16.07.2009. It was submitted that as transaction was commercial in nature hence defendants were required to pay interest at the rate 24% per annum on the due payments. Hence the present suit seeking recovery was filed.
Defendant's Version:
5. On notice, defendant filed Written Statement raising preliminary objections that the suit has been filed without any cause of action by person who is not duly authorized and material facts have been concealed. It was further objected that suit is time barred and liable to be dismissed on account of misjoinder of parties as other Directors were made a party to the present suit.
6. On merits, it was contended that defendant had placed purchase order dated 22.01.2008 for goods worth of Rs.2,56,256/ but it was admitted that the plaintiff had supplied goods in terms of the purchase order. It is pertinent to mention that it was denied that M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 3 of 10 Suit No.523/14 the defendants used to placed order as per their needs and requirements. It was further contended that no invoices/bills were raised by plaintiff as no material was supplied. It was contended that there is nothing outstanding against defendant and no legal notice was received by defendant from the plaintiff. In a nutshell, it was defence of the defendants that goods were not supplied hence, there is no liability.
Identification of Issues:
7. Replication was not filed by the plaintiff. Admission/ denial conducted and from the pleadings of the parties, following issues were framed:
Issue no. 1 Whether the suit of the plaintiff is barred by law of limitation?OPD Issue no. 2 Whether the plaintiff is entitled to recover a sum of Rs.2,15,255/as claimed for in the plaint?OPP Issue no. 3 Whether the plaintiff is entitled to interest as claimed for in the plaint? If so, at what rate?OPP Issue no.4 Relief.
Evidence:
8. Plaintiff examined PW1/AR and thereafter closed the evidence vide separate statement dated 31.07.2013.
9. On the other hand, the court had granted three opportunities to the defendant to lead evidence even subject to cost of Rs. 2000/. M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 4 of 10 Suit No.523/14 However, neither costs were paid and vide order dated 30.10.2013, right of the defendants to lead evidence was closed by Ld. Predecessor.
Arguments:
10. Ld. counsel for plaintiff argued that the goods were duly supplied by the plaintiff to the defendant and there are offices of 23 company having same management running from the same premises and therefore, receiving was made on behalf of the different companies but were supplied to the defendant and as relationship is cordial, plaintiff had not objected to the same. He further argued that the purchase order has already admitted and 50% of the same has been paid through cheque which has been duly encashed. He argued that in para 3 of the written statement the defendant have categorically denied any other business with the plaintiff but have admitted purchase order creating contradiction.
11. He also argued that all the original documents are on record which duly corroborate, the testimony of the plaintiff which is unrebutted as defendant did not lead any evidence.
12. On the other hand, Ld. Counsel for defendant argued that the purchase order is admitted but no material was supplied to the defendant. He argued that the burden to prove the delivery of the goods was on the plaintiff. He also argued that the 60% advance M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 5 of 10 Suit No.523/14 was paid as per Mark P1. He again argued that AR was not authorized as there is no resolution on record. The endorsement on the bills were questioned that Ex. PW1/4 and Ex. PW1/5 has endorsement of Good Morning India Media Pvt. Ltd. whereas Ex. PW1/6 has been received by Information TV Pvt. Ltd. It was argued that none of these have been received by defendant. He further argued that Income Tax Return has not been shown by defendant to show that the defendant was creditor. It was further argued that the plaintiff had not filed any replication therefore the contents of the written statement have not been denied.
13. I have heard the rival contentions raised by both the parties and submissions made at length. I have also perused the entire case record meticulously with kind assistance of Mr. Sanjay Aggarwal Ld. Counsel for plaintiff and Mr. Inder Singh, Ld. Counsel for defendant who led the court through various documents, pleadings and testimonies. My issue wise findings are as below:
Issue no. 1:
Whether the suit of the plaintiff is barred by law of limitation? OPD
14. The onus to prove this issue was upon the defendant. It was contended in the written statement that plaint is barred by law of limitation. Though the same was not pressed in the arguments. M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 6 of 10 Suit No.523/14 Hence, the court considers this argument as not pressed. Further, it can be observed that the purchase order was dated 22.01.2008 and invoices are dated 11.02.2008, 22.02.2008 and 03.04.2008. The present suit was filed on 04.02.2011. The first invoice was dated 11.02.2008 therefore the suit is within the limitation. Therefore this issue is decided against the defendant and in favour of the plaintiff. Issue no. 2:
Whether the plaintiff is entitled to recover a sum of Rs. 2,15,255/as claimed for in the plaint?OPP
15. The onus to prove this issue was upon the plaintiff, the plaintiff has claimed the sum of Rs.2,15,255/ from the defendant on the basis of invoices dated 11.02.2008 (Ex. PW1/4), 28.02.2008 (Ex. PW1/5) and 03.04.2008 (Ex. PW1/5). It can be observed that Ex. PW1/4 has an endorsement of receipt by Good Morning India Media Pvt. Ltd. On 11.02.2008, Ex. PW1/5 has an endorsement of receipt again by Good Morning India Media Pvt.
Ltd. dated 15.03.2008 and lastly Ex. PW1/6 has an endorsement of receipt from the Information TV Pvt. Ltd. on 03.04.2008. The defendant has denied all these bills and has stated that the goods were not supplied. It has not been refuted that Good Morning India Media Pvt. Ltd. and Information TV Pvt Ltd. do not have nexus with the defendant.
M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 7 of 10 Suit No.523/14
16. Another interesting fact in the present case is that all these bills are in the name of M/s Orient Craft Infrastructure Ltd. & Ors with detailed address and invoice items are matching with purchase order admitted by the defendant. However, it has been received by Good Morning India Media Pvt. Ltd. and Information TV Pvt. Ltd. It can not be believed that some other company received the goods in the name of M/s Orient Craft Infrastructure Ltd. completely matching with the purchase order placed by defendant on 22.01.2008 (Ex. D1).
17. There is no another fact which needs to be considered that 50% payment has not been denied by defendant in written statement rather Ld. Counsel for defendant referred to Mark P1 during his arguments. Therefore, when advance payment of Rs. 1,28,128/ was paid and goods were not received it is strange that defendant company never contacted the plaintiff for supply of goods as well as did not resort to any legal remedy available to them. It is highly improbable that the company would have not claimed back the amount paid when the goods were not supplied. Further no correspondence was made by the defendant company for the goods ordered. Though this court has also considered the arguments put forth by Ld. Counsel for defendant that amount was M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 8 of 10 Suit No.523/14 paid in some other transaction, however, defendant has failed to show any other transaction with the plaintiff. More so, when they have stated in the written statement that they did not deal with the plaintiff as per their requirements and only the purchase order Ex. D1 was admitted. There is not even a whisper about any other transaction. Further, Ld. Counsel fore defendant argued that it was 60%. But, I do not find any support or corroboration of this argument from the documents. Further, defendant has not shown any evidence in support its contention.
18. On the preponderance of probabilities, it can be observed that defendant has not objected to non delivery. Again the nexus of Good Morning India Media Pvt. Ltd and Information TV Pvt Ltd has not been denied. On the other hand, the invoice generated is in consonance with the purchase order. Further, the advance payment made has not been denied therefore, the plaintiff has established its case and present issue is decided in favour of the plaintiff.
Issue no.3:
Whether the plaintiff is entitled to interest as claimed for in the plaint? If so, at what rate?OPP
20. The onus to prove this issue was upon the plaintiff. It appears for plaintiff to show that it was entitled to interest at the rate 24% M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 9 of 10 Suit No.523/14 per annum. Invoices Ex. PW1/5 and Ex. PW1/6 show the rate of interest in case of over due payment 24% per annum. However, this court considers it to be a penal clause imposed as a deterrence for performance of the contract and therefore it can be considered only as upper limit the penalty. This court considers interest 24% per annum as exorbitant and interest is adjudged as 12% per annum.
Hence, this issue is also decided in favour of the plaintiff and against the defendant.
Relief:
21. Consequent to the above discussion, this court finds merit in case of plaintiff and suit is hereby decreed with costs to the extent of Rs.1,28,128/ as principal amount that 12% per annum from 16.07.2009 till filing of the suit and 6% pendente lite and future interest with monthly rests only against defendant no. 1.
22. Decree sheet be drawn accordingly. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 29th November 2014. (TANVI KHURANA) The judgment contains 10 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 29.11.2014 M/s CMS Computers Ltd. Vs. M/s Orient Craft Infrastructure Ltd. Page 10 of 10