Delhi District Court
Mi Electrical Steel Processing India ... vs Hardesh Kumar Prop Of Hitesh Industries on 31 August, 2023
IN THE COURT OF SH. REETESH SINGH, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-001691-2022
CS (Comm) No. 187/2022
In the matter of :-
MI Electrical Steel Processing India Pvt. Ltd.
Unit F-17, 17A, First Floor, Salcon Rasvilas,
Plot No.D1, District Center, Saket,
New Delhi-110017
Also at :
SP2-1 to SP2-4, NIC (M), Neemrana,
District Alwar, Rajasthan -301705
............Plaintiff
(Through Ld. Counsel Sh. Rakesh Gupta & Ms. Alisha Saini)
Versus
Sh. Hardesh Kumar
Proprietor of 'Hitesh Industries',
1/424/30-A, Gali No.1-B,
Friends Colony Industrial Area,
Delhi -110095
Also at :
1/11567, Gali No.2, Subhash Park Extension,
Naveen Shahdara, Subhash Park,
Deli-110032
Also at :
B-130, 3rd Floor, Anand Vihar Colony,
Delhi-110092 ......Defendant
(Defendant is ex-parte)
Date of institution of the case : 10.03.2022
Date of final arguments : 31.08.2023
Date of judgment : 31.08.2023
EX-PARTE JUDGMENT
1.The plaintiff M/s MI Electrical Steel Processing India Pvt. Ltd. through Sh. Yashpal Chauhan, its GM Finance has filed the present suit CS (Comm) No. 187/2022 1 /7 against the defendant Sh. Hardesh Kumar Proprietor of M/s Hitesh Industries seeking a decree for recovery of Rs.99,95,263.16p (Rs. Ninety Nine Lacs Ninety Five Thousand Two Hundred Sixty Three and Sixteen paisa) along with interest @ 12% per annum pendente lite and future as well as costs.
2. The plaintiff has averred that it is engaged in the business of manufacture and supply of CR Coils, CSCI Coils, Slitted Electrical Steel Coil/sheet and allied products. The defendant approached the plaintiff for purchase of CSCI Coils/Slitted Electrical Steel Coil/sheet and allied products to which the plaintiff agreed. It is averred that on the assurance of the defendant that there shall be no delay in payments, plaintiff agreed to supply products on credit. Pursuant to the orders placed, the plaintiff supplied the products to the defendant as per the agreed time line. It is averred that as per the general ledger for the period from 01.04.2018 to 12.04.2019 maintained by the plaintiff, a sum of Rs.99,95,263.16p remained due and payable by the defendant to the plaintiff. The details of the invoices raised between 03.10.2018 to 23.11.2018 against the defendant are tabulated in the Para no.7 of the plaint.
3. The plaintiff has averred that despite supplies having been effected, the defendant failed to make payment of Rs.99,95,263.16p. The plaintiff had sent an e-mail dated 14.01.2019 to the defendant demanding payment which was followed by another e-mail dated 12.02.2019. The defendant met the representative of the plaintiff on 11.02.2019 and agreement was reached regarding payment plan between the parties. Despite the said agreement, payments were not made. Plaintiff vide its e-mail dated 16.02.2019 intimated the defendant regarding non-payment to which the defendant vide e-mail dated 16.02.2019 assured the plaintiff of payment and to hand over cheques. Same was acknowledged by the plaintiff vide e-mail dated 18.02.2019.
CS (Comm) No. 187/2022 2 /74. Plaintiff has averred that vide e-mail dated 20.02.2019 the defendant informed the plaintiff about making payment of Rs.40,833/- towards interest for the month of December, which the plaintiff acknowledged vide its e-mail dated 20.02.2019. Pursuant to further discussions, defendant and the plaintiff entered into an agreement dated 30.05.2019 vide which the defendant accepted to make payment of Rs.99,95,263/- as per the payment schedule agreed between the parties failing which defendant shall be liable to pay interest @ 12% on the outstanding amount w.e.f. 01.06.2019.
5. Plaintiff has further averred that despite said agreement and verbal assurances, the defendant failed to make payment of the outstanding amount. Plaintiff sent a legal demand notice dated 04.01.2021 to the defendant but the defendant neither replied nor made any payment. It is averred by the plaintiff that a sum of Rs.99,95,263.16p along with interest @ 12% per annum is due and payable by the defendant to the plaintiff company.
6. Plaintiff has averred in Para no.30 of the plaint that originals of purchase orders, invoices, lorry receipts, cheques, balance confirmation and settlement agreement had been misplaced and that it was filing true copies thereof. After availing the remedy of pre-institution mediation under Section 12A of the Commercial Courts Act, the plaintiff filed the present suit.
7. By order dated 15.03.2022 summons of the suit were directed to be issued to the defendant. Summons issued to the defendant were repeatedly received back with the report of "left without address". Defendant remained unserved through RC with the report 'address is incomplete'. By order dated 19.04.2023 of Ld. Predecessor of this court, defendant was directed to be served with the summons of the suit through publication in the Newspaper 'Statesman'. Summons were CS (Comm) No. 187/2022 3 /7 served upon the defendant by publication in the newspaper 'Statesman' edition dated 10.05.2023. As none appeared the defendant was proceeded ex-parte by order dated 24.07.2023. Plaintiff led evidence and examined its GM Finance Department Sh. Yashpal Chauhan as PW1. He tendered his evidence by way of his affidavit Ex.PW1/A and placed reliance on the following documents :
(a) True Copies of 6 purchase orders dated 03.10.2018, 05.10.2018 31.10.2018, 17.11.2018, 18.11.2018 and 23.11.2018 vide Ex.PW-1/1(Colly)
(b) True Copies of 7 Lorry Receipts dated 03.10.2018, 09.10.2018, 15.10.2018, 22.10.2018, 31.10.2018, 19.11.2018 and 23.11.2018 vide Ex.PW-1/2 (Colly).
(c) General Ledger for the period 01.04.2018 to 12.04.2019 maintained by the plaintiff in respect of the defendant vide Ex.PW- 1/3.
(d) True Copies of 11 Invoices dated 03.10.2018, 09.10.2018, 09.10.2018,15.10.2018,15.10.2018,30.10.2018,31.10.2018,19.11.2 018,19.11.2018, 23.11.2018 and 23.11.2018 vide Ex.PW-1/4 (Colly).
(e) True Copies of all the emails during the period 04.12.2018
to 25.04.2019 vide Ex.PW-1/5 (Colly)
(f) True Copy of Balance Confirmation Letter dated 19.04.2019
vide Ex.PW-1/6.
(g) True Copy of Settlement Agreement dated 30.05.2019 vide
Ex.PW-1/7.
(h) Original Legal Demand Notice dated 04.01.2021 vide
Ex.PW-1/8.
(i) Original postal receipts and tracking report vide Ex.PW-1/9
(Colly).
(j) Original Board Resolution dated 01.06.2020 vide Ex.PW-
1/10.
(k) Original Authority Letter dated 05.08.221 vide Ex.PW-1/11.
(l) Photocopy of Certificate of Incorporation of plaintiff
company vide Ex.PW-1/12.
(m) Certificate under Section 65 B of Indian Evidence Act vide
Ex.PW-1/13.
(n) Affidavit under Section 63 Indian Evidence Act vide
Ex.PW-1/14.
8. PW-1 was not subjected to any cross-examination as the defendant was ex-parte. The plaintiff had closed evidence on 16.08.2023.
CS (Comm) No. 187/2022 4 /7However, on 31.08.2023 the plaintiff tendered in evidence an additional certificate by way of affidavit under Section 65B of the Evidence Act vide Ex.PW1/15 in support of the copies of the documents Ex.PW1/1 (Colly) to Ex.PW1/7. In the affidavit the plaintiff mentioned that it had scanned the said documents on its computer system, particulars of which are mentioned in Para 4 of this additional affidavit. Plaintiff has also filed soft copies of the scanned documents on a CD Ex.PW1/16. The said CD was accessed by this court on the court computer system and same was found to be containing a folder titled 'MI vs. Hitesh'. The folder itself contained soft scanned copies of the documents Ex.PW1/1 (Colly) to Ex.PW1/7. The soft copies of the scanned documents were exhibited as Ex.PW1/17 (Colly).
9. Arguments were addressed on the suit by Sh. Rakesh Gupta and Ms. Alisha Saini, Ld. Counsels for the plaintiff who submitted that the averments of the plaintiff in the plaint and evidence led had gone unrebutted and unchallenged. He further submitted that the plaintiff had accounted for the originals of the documents Ex.PW1/1 (Colly) to Ex.PW1/7 and had also led secondary evidence to prove the same.
10. I have heard the Ld. Counsels for the plaintiff and have perused the record of the case. The plaintiff has placed on record copies of the six purchase orders vide Ex.PW1/1 (Colly), seven lorry receipts vide Ex.PW1/2 (Colly), general ledger for the period 01.04.2018 to 12.04.2019 vide Ex.PW1/3, true copies of 11 invoices vide Ex.PW1/4, balance confirmation letter vide Ex.PW1/6, and copy of settlement agreement dated 30.05.2019 vide Ex.PW1/7 which reflected the dues of the defendant.
11. Plaintiff had sought to lead secondary evidence in respect of the documents Ex.PW1/1 (Colly) to Ex.PW1/7. Section 65 of the Evidence Act lays down provisions for cases in which secondary evidence relating CS (Comm) No. 187/2022 5 /7 to documents may be given. As per Section 65(c), secondary evidence of the existence of a document and its contents can be given where the original has been destroyed or lost. Further in respect of the document mentioned under Section 65(c), it is provided that any secondary evidence of the contents of the document is admissible. Section 63(2) of the Evidence Act states that secondary evidence means and includes copies made from the original by mechanical process which in themselves ensure the accuracy of the copy.
12. The witness of the plaintiff PW-1 in his examination recorded on 16.08.2013 has deposed that the originals of the documents Ex.PW1/1 (Colly) to Ex.PW1/7 were scanned in the computer system of the plaintiff company. Subsequently, on 31.08.2023, PW-1 has placed on record the scanned soft copies of the said documents vide Ex.PW1/17(Colly), contained in the CD Ex.PW1/16 and has also filed an additional certificate by way of affidavit under Section 65B of the Evidence Act vide Ex.PW1/15. In the said affidavit in Para 4, PW-1 has given on oath the complete details of the computer system of the plaintiff company in which the said documents were scanned.
13. In the opinion of this court, the plaintiff has made out a case for proving the documents Ex.PW1/1(Colly) to Ex.PW1/7 by leading secondary evidence of the said documents. The same are taken to be duly proved.
14. Perusal of the settlement Ex.PW1/7 reveals that the defendant admitted his liability of Rs.99,95,263/- qua the plaintiff and agreed to pay the same in four installments between 31.08.2019 to 31.11.2019. He had also undertaken to pay interest @ 12% per annum on the outstanding amount w.e.f. 01.06.2019. Defendant did not appear to defend the suit. The averments made by the plaintiff in the plaint and evidence led by PW-1 have gone unrebutted and unchallenged. Plaintiff is therefore held CS (Comm) No. 187/2022 6 /7 entitled to recovery of Rs.99,95,263/-. As regards claim of interest, under Section 61 of the Sale of Goods Act, interest is recoverable if a contract in that regard exists between the parties. In the present case, vide settlement agreement Ex.PW1/7, the defendant has agreed to pay interest to the plaintiff @ 12% w.e.f. 01.06.2019. Accordingly, plaintiff is entitled to interest at the said rate and from the said date. Costs of the suit are awarded in favour of the plaintiff.
15. Suit of the plaintiff is decreed in the following manner :-
(a) Plaintiff is granted a decree for recovery of Rs.99,95,263.16p (Rs. Ninety Nine Lacs Ninety Five Thousand Two Hundred Sixty Three and Sixteen paisa) along with interest @ 12% per annum w.e.f. 01.06.2019 till the date of realisation against the defendant;
(b) Plaintiff shall be entitled to costs of the suit along with interest @ 9% per annum from the date of the decree.
16. Decree sheet be prepared. File be consigned to record room.
Announced in the open (REETESH SINGH)
court on this 31st day DISTRICT JUDGE
of August 2023 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS, DELHI
CS (Comm) No. 187/2022 7 /7