Delhi District Court
Cs 19593/2016 M/S Udk Papers Pvt Ltd vs M/S Shaileja Papers Ltd & Ors on 9 September, 2019
CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors
IN THE COURT OF SH.MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE (CENTRAL):
TIS HAZARI COURTS: DELHI
CIVIL SUIT No : 19593/2016
M/s U.D.K.PAPERS PVT LTD
through its Director Sh.Nand Kishore,
X-1134, New Chand Mohalla,
Gandhi Nagar, Delhi 110 031 ....PLAINTIFF
VERSUS
1.M/s SHAILEJA PAPERS LTD
through its Directors
5-C/9,New Rohtak Road, Karol Bagh
New Delhi 110 005
2.Mr.DHARMESH MEHTA
Director of M/s Shaileja Papers Ltd
5-C/9,New Rohtak Road, Karol Bagh
New Delhi 110 005
3.Mr.CHETAN MEHTA
Director of M/s Shaileja Papers Ltd
5-C/9,New Rohtak Road, Karol Bagh
New Delhi 110 005 ....DEFENDANTS
Date of Institution of the suit : 09.11.2011
Date on which judgment was reserved : 27.8.2019
Date of decision : 09.9.2019
Result : Suit decreed Page 1 of 65
CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors
JUDGMENT IN CIVIL SUIT FOR
RECOVERY OF Rs.31,29,522/- (RUPEES
THIRTY ONE THOUSAND TWENTY
NINE THOUSAND FIVE HUNDRED
AND TWENTY TWO ONLY)
J U D G M E N T
1. As per the suit (originally filed under the provisions of Order XXXVII of the Code of Civil Procedure), the plaintiff is a Private Limited Company engaged in the business of supply of papers and the suit has been brought and instituted as well as verified by one of its authorized Director Sh. Nand Kishore against the defendant/a customer of the plaintiff company against the sum due in respect of paper material supplied from time to time.
FACTS OF THE CASE AS PER THE PLAINT
2. The below mentioned is the details of the bill numbers with date and amount of the bill -
Srl.No Bill No. Dated Amount (Rs).
1 T049 22.10.2008 5,66,585/
2 T050 23.10.2008 5,32,052/
3 T051 24.10.2008 6,40,145/
4 T077 18.02.2009 78,962/
5 T078 18.02.2009 57,637/
TOTAL 18,75,381/
Result : Suit decreed Page 2 of 65
CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors
Against the above, the defendant paid a sum of Rs.65,000/ on 17.1.2009 and another sum Rs.1,36,599/ on 16.3.2009 leaving a balance of Rs.16,73,782/ as the defendant failed to pay the balance amount even after expiry of 30 days from the dates of bills and as such they are liable to pay interest at the rate of 30 per cent per annum as claimed in the plaint. The interest amount calculated upto 30.9.2011 is stated to be Rs.14,55,740/.
It is averred that demand for the balance outstanding amount was made again and again and on persistent failure of the defendants to pay, a legal notice dated 08.4.2011 was posted on 09.4.2011 which was not responded by despite service and no amount was paid. Hence, the present suit was based on the invoices.
DISPOSAL OF THE APPLICATION UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE Summons in the prescribed format were issued to the defendants under Order XXXVII of the Code of Civil Procedure. The defendants entered appearance and sought leave to defendant under Order XXXII Rule 3(5) read with Section 151 CPC. The same, however, was not granted vide order dated 19.8.2015 passed by the Hon'ble High Result : Suit decreed Page 3 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Court of Delhi in the Original Side of its jurisdiction prior to transfer of this suit to the district Courts owing to enhancement of pecuniary jurisdiction. As noted above, the application was dismissed. Another application under Section 340 Cr.PC was also dismissed vide order 19.8.2015. The suit was decreed for Rs.16,73,782/ as principal amount and interest at the rate of 12 percent per annum thereupon was also granted from the date of payment due till realization along with costs.
The said final order was challenged before the Division Bench of the Hon'ble High Court of Delhi by the defendants in RFA(OS) 100/2015 and on 18.4.2016, the judgment dated 19.8.2015 was set aside. Vide the said order dated 18.4.2016, the defendants were directed to deposit 50% of the principal amount claimed in the suit in the court which was directed to be kept in interest bearing deposit till final disposal of the suit.
Compliance of the order was made as recorded in the order of the learned Joint Registrar (Judicial) dated 25.5.2016 and on the same day, the suit was transferred to the District Courts on account of enhancement of pecuniary jurisdiction.
Result : Suit decreed Page 4 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors JOINT WRITTEN STATEMENT OF THE DEFENDANTS Accordingly, written statement was filed by the defendants. By way of their common written statement, the defendants denied accrual of any cause of action in favour of the plaintiff claiming that there is misjoinder of defendants no.2 and 3 who have no individual role in the entire transaction between the plaintiff company and the defendant no.1 company. Plea was taken that the transaction was done through common broker Sh. G.S. Mishra who certified and proved the fact that the entire lot of unused goods issued against three particular invoices No.T049, T050 and T51 were returned by the defendants to the plaintiff through him and one Mr. Birij.
The defendants have taken the stand that the suit deserves to be dismissed as the defendants had duly written letters dated 23.10.009, 25.10.2008 and 26.11.2008 about the unused defective goods which were returned on 02.4.2010 and 5.4.2010 with debit notes. Dismissal of the suit is thus sought in view of Section 43 of the Sale of Goods Act, 1930.
The defendants have also claimed that the suit has not been signed and verified and instituted by an authorized representative of the plaintiff company It is claimed that the resolution dated 26.8.2011 is Result : Suit decreed Page 5 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors forged and fabricated. It is also submitted that the plaintiff is now a defunct company. It is also claimed that the plaintiff has forged and fabricated the documents like books of accounts and legal notice etc. It is explained in the written statement that the defendant no.1 is a Public Limited Company duly registered under Indian Companies Act and the defendants no.2 and 3 are its Directors who have no individual roles and that the plaintiff is not entitled to claim anything against them in their personal capacities.
It is not disputed that the defendant no.1 is engaged in the trading of paper items and that it came in contact with the plaintiff through one of its brokers Sh. G.S. Mishra - an independent broker working in paper industry who was never in the employment of the defendant no.1. In some of the cases, Sh. G.S. Mishra facilitated purchase of papers from the plaintiff for selling it to the defendant and others concerned and in some cases he facilitated purchase of papers from the defendant and some other parties for selling to the plaintiff. In this case also, his services were taken as he was a registered broker of Paper Merchants Association. He was alive at the time of filing of the suit who died subsequently but during his life time, he filed affidavit in this Court stating all the facts of all the transactions between the parties Result : Suit decreed Page 6 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors to this lis clarifying that the transactions were through him and he had taken delivery of the goods from the plaintiff (under his written receipt) as common broker of both the parties and had found the goods to be defective which were returned by him to the plaintiff as per mutual agreement between the parties. The return of the goods was facilitated through plaintiff's employee namely Sh. Birij. Goods were returned vide challan No.006 dated 02.4.2010 and 014 dated 05.4.2010 with debit note for Rs.5,01,585/ and Rs.11,72,197/ respectively.
It is claimed that out of the five bills mentioned in the plaint, the defendant no.1 did not pay any amount for the first three bills but paid the amount for the last two bills totalling Rs.1,36,599/ which was accepted by the plaintiff without any demur or protest.
With respect to the first three bills T049, T050 and T 051, it is claimed that most of the goods supplied under them were having termite and were in wet condition which could not even be stored by the defendant No.1 with other products as the same could have potentially caused loss to other materials of the defendant no.1. It is clarified that in the paper industry, the papers infested with termite never mean "live termite" but means that the paper is "affected" and "damaged" by termite and hence such papers will not be sold in the Result : Suit decreed Page 7 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors market. It is also sought to be clarified that the above does not mean that the paper becomes 'ash/dust' as it is kept in chemically treated environment in the stock so that "termite effect" though visible on papers, does not spread any longer. Likewise, it is sought to be explained that when paper is stated to be "wet", it means that the paper was exposed to water before delivery which is apparent from the fact that such papers will carry yellow marks on their corners and edges. However, moisture and marks etc spread on their goods and hence such papers cannot be kept with other goods. It is also clarified that the defendants' godown is so big that it was possible to keep the two set of goods separately from the other goods. It is claimed that upon receipt of defective goods the defendants telephonically informed Sh. G.S.Mishra immediately and accordingly the plaintiff was informed. It is Sh.G.S.Mishra who had to facilitated return of the goods. Accordingly, the defendants wrote three letters dated 23.10.2008, 25.10.2008 and 26.11.2008 to the plaintiff through Sh.G.S.Mishra informing of the above facts asking that they be taken back. Parties also discussed mode of lifting material through Sh.G.S.Mishra and it was concluded that it is Sh.G.S.Mishra who will lift the goods and return the same to the plaintiff and also that the business relations will continue and that is why two separate independent transactions were done vide last two invoices bearing No.T77 and T78.
Result : Suit decreed Page 8 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors It is also submitted that on 16.1.2009, an arrangement was made between the parties through Sh.G.S.Mishra that the defendant no.1 shall pay costs of the quantities of the goods in the first three invoices which were used by defendant no.1. Thus, the plaintiff was paid through said Sh.G.S.Mishra as under :
Item Quantity Kg Amount
Sunshine 21 Ream (25x36) 1185.1 Rs.62,514/ + VAT (at the
SP plus 7 kg rate of 4% = Rs.2,500/)
Total Rs.65,014/
The balance defective goods were returned through Sh.G.S.Mishra on 02.4.2010 and 05.4.2010 after paying the amount under the undisputed invoices No.T077 and T078 and the detail is as under :
Table (i) Date Item Quantity Kg Form No.D VAT33 Form 02.4.2010 Sunshine SP 163 Reams 3781.4 006 One Ream loose 02.4.2010 Ta Delux 217 RIM 4622.1 006 Premium 02.4.2010 SS SP 48 RIM 739.2 006 Total 5,01,585/ Result : Suit decreed Page 9 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Table (ii) Date Item Quantity Kg Form No.D VAT33 Form 05.4.2010 ABC Gold 651 reems 12108.6 014 05.4.2010 Maplitho 1235 reems 13832 014 Paper 05.4.2010 014 Total 11,72,197/ Total of the above Table (i) and Table (ii) comes to Rs.16,73,782/ Debit notes dated 02.4.2010 and 05.4.2010 were also issued along with form DVAT3 bearing no.006 and 014 of the same dates. After return of the goods, necessary endorsements were made in the books of account of the defendant no.1 which were duly audited. It is, therefore, claimed that there are no dues to be paid to the plaintiff.
On merits, the defence has been accordingly explained in the above terms which forms Preliminary Objections. It is claimed that the plaintiff's claim that it is registered, needs to be ascertained in view of the fact that the original constitution of the plaintiff company was changed. It is stated hat the plaintiff has fled from the market and is not in operation, and therefore, there is no question of their holding any Result : Suit decreed Page 10 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Board Meeting and passing the alleged resolution dated 26.8.2011. It is claimed that forgery of the resolution becomes clear from its contents itself which show that the resolution was passed/given for some execution petition which was continuing at that time whereas this suit was drafted subsequently on 10.11.2011. It is also claimed that the plaintiff has attempted to mislead this Court by putting all the invoices together in order to show that all the goods were taken as part of the same transaction is manifest from the record as all the transactions were different transactions. It is also claimed that the books of accounts of the plaintiff do not show transactions correctly and precisely as they show receipt of two amounts paid by the defendant in a different manner. Since the same pleadings had exchanged between the parties at the stage of proceedings pertaining to grant of leave to defend, the defendant also picked up some of them to develop their defence further. The fact that qua the return of defective goods at one hand, the plaint shows that they were not in the tenancy of the premises after 14.12.2008 and on the other hand, it is evident from the delivery notes dated 18.2.2009 that even after 14.12.2008 the plaintiff was using the same premises which is mentioned in the subsequent delivery notes dated 02.4.2010 and 05.4.2010. It is submitted that Goyal Farm House where godown of the plaintiff is situated is a big area consisting of many godowns and even place where the plaintiff claims to have shifted their godown is in the same area and it Result : Suit decreed Page 11 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors does not make any difference as landlord of the premises remained the same. It is also contended that the alleged rent receipt with effect from 15.12.2008 filed by the plaintiff is a manufactured document and no supporting lease deed has been filed. It is claimed that both the receipts sow that godown is situated in "Goyal Farm House" and none of the rent receipt reflects the godown number.
The facts narrated in hitherto before paragraphs are basically not in response to the pleadings in the plaint but in response to the reply filed by the plaintiff to the application for leave to defend and I shall make reference about the necessary facts pleaded therein.
The entire issue is about return of the defective material to the plaintiff which the plaintiff denies. According to the plaintiff, on the alleged dates of return i.e. 02.4.2010 and 05.4.2010, the godown no.11 Goyal Farms House was not under the tenancy of the plaintiff and employee of the plaintiff namely Sh. Birij had left his employment on 31.7.2009, and therefore, the question of accepting the alleged material on the above dates by Sh. Birij does not arise. The plaintiff then contends that the defendants are in collusion with Sh.G.S.Mishra and have manufactured forged debit notes and delivery notes.
Result : Suit decreed Page 12 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors The plaintiff company is developing the above facts in its reply to the application for leave to defend stating that the above noted godown of Smt.Prem Lata Goyal was left by it on 14.12.2008 and another godown was taken in the same vicinity on 15.12.2008 under the ownership of one Sh. Lalla. It is, now in this context, that the plaintiff filed copies of last rent receipts of the previous godown and the new godown. The plaintiff also took the plea that signatures on the delivery and debit notes do not tally with the signatures of said Sh.Birij The plaintiff then files copy of the resignation letter of said Sh.Birij along with his detailed affidavit. They have also filed copy of the salary of account of the year 200910 of Sh.Birij to show that he was no more in the employment with effect from 01.8.2009. It is in this context they filed an application under Section 340 Cr.PC which was earlier disposed of.
Reverting back to the contents of the written statement, the defendants further pointed out that Sh.Birij used to sign on behalf of the plaintiff and that he never resigned on 31.7.2009. It is claimed that resignation letter and the affidavit are procured documents. It is claimed that Sh.Birij is shown to have been working in Darya Ganj, New Delhi, which is incorrect. It is also claimed that affidavit of Sh.Birij was identified by the same counsel which is sufficient proof of the fact that he Result : Suit decreed Page 13 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors was still under the control and influence of the plaintiff company. Moreover, the affidavit of Sh.Birij has been sworn on 20.3.2012 i.e. much after filing of the application for leave to defend.
Regarding the legal notice issued by the plaintiff to the defendants, it is contended that it did not refer to the details of bill number or other particulars of the alleged purchases i.e. 24.4.2008 (T
051) and 16.3.2009 and as such the defendant could not ascertain the facts regarding the particulars of the alleged transactions, and therefore, no adverse inference should be drawn on the ground that legal notice was not replied to. It is also claimed that the defendant tried to contract the plaintiff but it had already closed business operations and was untraceable. With these submissions, dismissal of the suit has been sought.
REPLICATION Replication to the written statement of the defendants is a reiteration, renarration and reassertion of the contents of the suit plaint as correct. It has been repeatedly stated in the replication that contents of the reply filed by the plaintiff to the application for leave to defend of the defendants may be treated as part and parcel of the replication. It is not denied that the Sh.G.S.Mishra used to place orders on behalf of the Result : Suit decreed Page 14 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors defendant company and also received and signed the delivery notes and it is explained that as per the practice in the paper market, a customer is not fully aware of the availability of the products which he want and therefore, parties used to take assistance of the brokers like Sh.G.S.Mishra.
It is denied that the material supplied was defective and without admitting it, it is contended that if it was so the defendant was dutybound to return the material immediately. It is submitted that not only the goods were upto the mark but subsequent conduct of the defendant in purchasing further material vide bills No.T077 and T078 goes to show the fact that the goods supplied earlier were of good quality.
It is also pointed out under the first three invoices, the material supplied was worth the weight of four trucks i.e. approximately 34 tonnes. It would require the defendant to store the same at spacious place and no prudent person would keep the material with him for two years if it was infected with termite or was in wet condition. It is, therefore, contended that the defendant has taken false stand only after receiving legal notice dated 08.4.2011/after filing of the suit. It is denied that any material was ever returned submitting that the entire material has been consumed, and therefore, the question if its return through Result : Suit decreed Page 15 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Sh.G.S.Mishra to the employee Sh.Birij does not arise at all. It is specifically denied that the defendant wrote any letter dated 23.10.2008, 25.10.2008 and 26.11.2008. It is also denied that any telephonic information regarding defective material was ever received and such question does not arise at all as the goods supplied were never defective. The said letters are stated to be forged and fabricated. It is denied that an agreement was reached to decide the mode of return of defective goods or to make balance payment as averred. The delivery notes and debit notes are said to be concocted and manufactured documents. The plaintiff has also taken the plea of the having shifted their godown about which relevant facts have also been incorporated in the previous part of this judgment. The plaintiff has further denied that the accounts of the defendants no.1 are correct. The same are said to be forged and fabricated.
Regarding the employee Sh.Birij, it has been reasserted that Sh.Birij was not an employee of the plaintiff at the relevant time as he was then an officeboy at Darya Ganj Delhi. It is reiterated that the suit is correct and the plaintiff is entitled to the principal amount along with interest due thereupon.
ISSUES Result : Suit decreed Page 16 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors On the pleadings of the parties, on 17.7.2017, the following issues were framed
1.Whether the plaint has not been signed and verified and the suit has not been instituted by a duly authorized person on behalf of the plaintiff? OPD
2.Whether the defendants no.2 and 3 have been improperly joined as parties to the present suit? OPD
3.Whether the defendants had returned the defective goods on 02.2.2010 (actual and correct date 02.4.2010) and 05.4.2010 with debit notes? OPD
4.Whether the plaintiff is entitled to recovery of an amount of Rs.16,73,782/ from the defendants towards the unpaid price of the goods supplied? OPP
5.Whether the plaintiff is entitled to interest? If yes, at what rate and for what period? OPP
6.Relief.
On the same day when issues were cast out, the plaintiff attempted to withdraw the amount of Rs.8,36,891/ which was deposited by the defendant towards compliance of the directions in the order dated 18.4.2016. However, the said application was dismissed with the observation that the amount can not be released to the plaintiff until the Result : Suit decreed Page 17 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors suit is finally decided.
PLAINTIFF'S EVIDENCE The suit was instituted by one of the Directors of the plaintiff namely Sh.Nand Kishore. However, another Director Sh. Naveen Chander examined himself as sole witness of the plaintiff company. His affidavit in evidence is Ex.PW1/A. He deposed in his independent capacity as Director of the plaintiff company and has sworn that he is fully conversant with the facts of the case. During his evidence, PW1 produced copy of Memorandum and Article of Association of the plaintiff company as Ex.PW1/1 (collectively). He also deposed that Sh.Nand Kishore was authorized to file this suit on the strength of Board Resolution dated 08.6.2012. The plaintiff company passed another Board resolution authorizing PW1 to deal with this case on 30.11.2016. He produced copy of extract of the first resolution as Ex.PW1/2 and of the second resolution as Ex.PW1/2A respectively.
PW1 deposed about supply of paper material against various bills and delivery challans which are collectively exhibited as Ex.PW1/3. PW1 also deposed that the company maintains ledger account of the amount outstanding in the name of the defendant and the Result : Suit decreed Page 18 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors same is Ex.PW1/4. Legal notice issued to the defendant is sought to be proved by producing its copy as Ex.PW1/5 and towards proof of delivery, postal receipt Ex.PW1/6 is produced. PW1 also relied upon a calculation sheet pertaining to the interest component on the outstanding amount claimed which is Ex.PW1/7.
Although PW1 deposed that the plaintiff paid godown rent by cheques and stated in his affidavit of evidence about the rent receipts and corresponding bank statement but originals thereof are not produced. PW1 produced copy of two rent receipts which are marked as Mark PW1/8 and Mark PW1/9 whereas Bank's statement of the plaintiff company is Ex.PW1/10. The original resignation letter of Sh.Birij is Ex.PW1/11 and affidavit furnished by him and referred to earlier in this judgment is Ex.PW1/12. The witness also produced salary account/ledger in respect of Sh.Birij for the years 2009 and 2010 which are Ex.PW1/13 and Ex.PW1/14 respectively.
A Specific objection was raised qua admissibility of the ledger account Ex.PW1/4 besides objection that paras 9 to 16 of the affidavit of evidence Ex.PW1/A are beyond pleadings.
PW1 was cross examined on 10.8.2017 when it was Result : Suit decreed Page 19 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors deferred and concluded finally on 24.10.2017 on which date, plaintiff closed evidence in affirmative.
DEFENDANTS' EVIDENCE The defendants also examined only one witness who is defendant no.3 as well as one of the Directors of the defendant no.1. His affidavit in evidence is Ex.DW1/A. He deposed on behalf of the defendant no.1 on the basis of Board Resolution in his favour which was passed by the Board in the Board Meeting dated 31.10.2011 which is Ex.DW1/1. He deposed in accordance with the pleadings and produced copy of the form DVAT33 for Invoices no.006 dated 02.4.2010 and No.014 dated 05.4.2010 as Ex.DW1/2 and Ex.DW1/3 respectively. DW1 also produced debit notes of the above noted dates which are Ex.DW1/4 and Ex.DW1/5 respectively. DW1 also relied upon the list maintained by the Paper Merchants' Association to show that Sh.G.S.Mishra was a registered broker with them and copy of the said list is marked as Mark D1. He also relied upon the affidavit furnished by Sh.G.S.Mishra regarding return of the goods to the plaintiff company through Sh. Birij which was filed along with the application of the defendants seeking leave to defend and the said affidavit is marked as Mark D. The letters which DW1 has relied to show that the plaintiff Result : Suit decreed Page 20 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors was informed about the defective goods and was asked to take them back are dated 23.10.2008, 25.10.2008 and 26.11.2008 are marked as Mark D3 to Mark D5 respectively. Lastly DW1 relied upon the copy of the statement of account and audited balance sheet along with list of creditors of the defendant no.1 which is marked as Mark D6 (collectively). The witness was cross examined on 20.2.2018, 16.7.2018 and 09.10.2018.
His cross examination did not conclude on 09.10.2018 and adjournment was sought by him. Thereafter, the matter was listed on 20.11.2018 when DW1 did not appear and the learned predecessor of this Court closed evidence of the defendants.
This Court has heard Sh. D.K.Chawla, Advocate -learned counsel for the plaintiff and have perused the written submissions filed on behalf of the defendants.
ORAL ARGUMETNS ON BEHALF OF THE PLAINTIFF It has been argued orally on behalf of the plaintiff that the sale in question is not disputed. It is pointed out that the foot note of the invoices mentions the fact that the interest is chargeable at the rate of Result : Suit decreed Page 21 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors 30% per annum and responsibility of the plaintiff will cease upon the goods leaving their premises. It is also argued that as per Ex.PW1/3 i.e. the invoices and delivery challans, all the claims were to be made within 3 days from the date of receipt of the goods. It is argued that this fact has been proved by PW1 besides proving the fact that the plaintiff was maintaining ledger account of the defendant .It is urged that the payment of Rs.65,000/ on 17.1.2009 and Rs.1,36,599/ on 16.3.2009 are admitted facts and the ledger account Ex.PW1/4 reflects balance amount outstanding upon the defendants which is Rs.16,73,782/.
It is further argued by the counsel for the plaintiff that service of legal notice dated 08.4.2011 is not in dispute as this fact is an admitted fact. It is specifically pointed out that the only objection of the defendants in this respect is about the transaction of two particular dates which are dated 24.2.2009 and 16.3.2009 and which argument is stated to be against the record as the fact that the transactions took place on these dates too is argued to have been proved by virtue of corresponding entries in the ledger account maintained by the plaintiff.
It is submitted that the defence raised by the defendants is not tenable and unbelievable for the reason that the defendants have Result : Suit decreed Page 22 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors submitted on their own that they have consumed material worth Rs.65,000/ i.e.51 reams which is not possible unless they open the entire consignment of the papers as without opening it, the defendants would have never knew that only 51 reams were good out of the total supply which is 34,083 Kilo and 400 grams. It is thus submitted that the plea itself is false on the face of it.
It is also argued that any person of ordinary prudence will never store defective goods with nondefective ones. It is also urged for this Court to specifically note that the defendants themselves picked the material from the godown of the plaintiff and if it was defective, objection would have been made then and there even before taking delivery of the material.
It is also contended that plea of return of the material is false as it is fabricated after service of the legal notice as it has been taken after more than 17 months of the date of delivery of the goods. It is contended that no goods could have been returned to Sh.Birij on 02.4.2010 and 05.4.2010 as he had left the service of the plaintiff company on 31.7.2009, which fact, it is argued, stands proved in view of Ex.PW1/11 and Ex.PW1/14.
Result : Suit decreed Page 23 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors It is further contended that in any case, the plaintiff's witness proved that the plaintiff company changed godown no.11 Goyal Farm House on 15.12.2008 itself, and therefore, the plea of returning the material by the defendants at the address which is no more in use and occupation of the plaintiff company is unbelievable. It is also argued and literally sought to be demonstrated by the counsel for the plaintiff during such arguments that details of the rejected material Ex.DW1/P2 does not tally with the details or the material shown in the delivery notes Ex.DW1/2 and Ex.DW1/3 clearly showing that the defendants are not aware about the material allegedly rejected and returned. It is urged that the defendants have consumed the entire material and are now taking false plea. In the same context of arguments, it is urged by the plaintiff that the details of the debit notes are not found/appearing in the ledger Ex.DW1/P1 which should have been appearing as corresponding entry in the ledger account if version of the defendants was correct.
It is also stated to be against human prudence and opposed to the business policy that repeated orders will be placed by a party who is supplied defective material soon after such disputed transaction. It is also pointed out that in the present case, the allegation is that the goods supplied by the plaintiff under the bill dated 22.10.2008 were defective Result : Suit decreed Page 24 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors but on the very next day i.e. 23.10.2008 and thereafter, on 24.10.2008, defendants placed two more orders vide bills No.T050 and T051 which are Ex.PW1/3 (collectively) Regarding the letter dated 23.10.2008, the plea is taken that it is manipulated as the date appearing in the body is 22.2.2008 whereas admittedly the material was supplied on 22.10.2008. Similar is the position which is appearing in the second letter dated 25.10.2008. It is urged that such mistakes could have taken place only while false defence was being created by manipulating the documents. It is lastly argued by the counsel for the plaintiff that the testimony of DW1 should not be looked into as his cross examination did not conclude. It is contended that the defendants have failed to produce any evidence on record to substantiate their defence.
WRITTEN ARGUMENTS ON BEHALF OF THE DEFENDANTS The defendants have assailed the case of the plaintiff stating that they have failed to prove ledger account Ex.PW1/4 and contents of the affidavit Ex.PW1/A in evidence and contents of paras 9 to 16 of the said affidavit of evidence are beyond pleadings.
Result : Suit decreed Page 25 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Qua issue no.1, it is submitted that PW1 admitted in the cross examination that there are five Directors of the plaintiff company, as per clause 20 of Ex.PW1/1 which is Memorandum and Article of Association of the plaintiff company, its Directors are continuing as such till date. Attention of the Court is drawn to the fact that PW1 claims in his cross examination that he is deposing as Authorized Representative claiming his status as Director also. It is submitted that the person through whom the suit was filed namely Sh.Nand Kishore has not been examined. Further attention of the Court is drawn to the fact that the plaintiff exhibited the resolution dated 26.11.2011 stating it to be in favour of Sh. Nand Kishore as Ex.PW1/2 while referring to some other resolution dated 01.6.2012 in para 3 of the affidavit of PW1.
It is urged that PW1 has claimed his power to depose from another resolution dated 30.11.2016 which is Ex.PW1/2 and a bare reading of the record shows that PW1 was never substituted in place of Sh.Nand Kishore. In the same context, it is argued that PW1 admitted regarding the mistake and technical lapses in the Board Resolution which the witness was trying to prove. It is therefore, contended that Ex.PW 1/2 and Ex.PW1/2A are unproved.
Result : Suit decreed Page 26 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors With respect to issue no.2, it has been argued that the defendants no.2 and 3 have no individual role in the transactions involved in the suit. It is contended that the plaint is silent about any specific role of these defendants and no such role has been attributed to them even in the affidavit Ex.PW1/A and therefore, these defendants are improperly joined in the suit.
Regarding the issue of return of the defective goods on 02.4.2010 and 05.4.2010, it is urged that the goods were returned through Sh.G.S.Mishra who signed the letters marked as Mark D3 to D5 and that the said Sh.Mishra also furnished his own affidavit dated 18.2.2012 which is marked as Mark D2. In this context, attention of the Court is drawn to the subsequent invoice dated 21.1.2009 Ex.PW1/D1 which was put to PW1 by the defendants during his cross examination along with the delivery note of the same date Ex.PW1/D2. It is pointed out that PW1 admitted the above two documents as documents showing complete transaction between the plaintiff and the defendant. It is urged that from this document it would be clear that the plaintiff paid for the goods sold by the defendant no.1 to the plaintiff on 21.1.2009 i.e. after the alleged transaction relating to the disputed invoice T049 to T051 which are dated 22.10.2008, 23.10.2008 and 24.10.2008 respectively. It Result : Suit decreed Page 27 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors is, accordingly, urged that if the amount claimed by the invoices issued in the year 2008 were payable by the defendants to the plaintiff then the plaintiff would have never, made payment for the subsequent reverse transaction dated 21.1.2009 as the plaintiff would have adjusted the amount outstanding in the account of the plaintiff against the defendants. It is, therefore. urged that the above facts establish that the defendants are not liable to pay any amount to the plaintiff, as averred.
In the same context of arguments, attention of the Court is also drawn to the fact that as per the defendants, payment under invoice No.T077 and T078 dated 18.2.2009 were made on 16.3.2009 without paying for the amount due in the previous invoices. It is urged that the plaintiff accepted this payment on 16.3.2009 without prejudice regarding nonpayment towards earlier invoices. Response of the plaintiff, which is borne out from the replication, is that after receipt of Rs.65,000/ on 17.1.2009, they had put condition/restrictions to make payment immediately and accordingly subsequent payment for the amount due in the last two invoices No.T077 and T078 were made on 16.3.2009. It is, therefore, urged that the plaintiff has received the amount due under these two invoices without any protest about non payment of the amount already received. It is urged that the subsequent conduct of the plaintiff of making payment of the goods supplied by the defendants to the Result : Suit decreed Page 28 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors plaintiff vide invoice and delivery note Ex.PW1/D1 and Ex.PW1/D2 respectively dated 21.1.2009 only establishes that nothing was due to be paid to the plaintiff.
It is also argued that the plaintiff have not impleaded Sh.G.S.Mishra and Sh.Birij as codefendants, and therefore, an averse inference should be drawn against the plaintiff to the effect that the plaintiff company received back the damaged goods.
It is also urged that the plaintiff has not produced any evidence to show that they ever informed the defendant of shifting their godown from 14.12.2008, and therefore, an adverse inference should be drawn against the plaintiff of having received back the damaged goods. It is also contended that the documentary evidence in the form of Ex.PW1/12 i.e. affidavit of Sh.Birij dated 20.3.2012 shows that the plaintiff is in contact with their employee Sh. Birij whom they claim to have tendered resignation on 31.7.2009 which is not possible to be comprehended. It is also urged that the plaintiff has not chosen to summon or produce said Sh.Birij as witness to prove the contents of Ex.PW1/11 to Ex.PW1/14.
It is also urged that the plaintiff has not produced any Result : Suit decreed Page 29 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors certificate under Section 65B of the Indian Evidence Act, 1872, for proving the documents Ex.PW1/4, Ex.PW1/13 and Ex.PW1/14 and therefore, these documents are not proved in accordance with law. Alternatively, it is argued that if the Court considers the affidavit of Sh.Birij then affidavit of Sh.G.S.Mishra ought to be similarly considered.
On the strength of the above, the defendants have resisted the claim of the plaintiff.
This Court has gone through the record carefully including oral and documentary evidence. The issuewise findings are as under :
ISSUE NO.1
1.Whether the plaint has not been signed and verified and the suit has not been instituted by a duly authorized person on behalf of the plaintiff? OPP Onus of this issue was upon the defendants. The plaintiff herein is a Corporation. As per the pleadings, the plaintiff is a Private Limited Company and the suit is instituted, signed and also verified by one of its Directors namely Sh.Nand Kishore, in favour of whom, the Board of Directors of the plaintiff company passed a resolution dated Result : Suit decreed Page 30 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors 26.8.2011. The said Director is, however, not a witness for the plaintiff as the plaintiff chose to examine another Director namely Sh.Naveen Chander as PW1 who deposed that the Board of Directors of the plaintiff had passed earlier resolution dated 01.5.2012 in favour of Sh.Nand Kishore. The defendants had argued that PW1 has exhibited an incorrect Board Resolution in favour of Director Sh.Nand Kishore as the plaint reads that resolution in favour of Sh.Nand Kishore was passed in the meeting of the Board dated 26.8.2011. This resolution is Ex.PW 1/2.
Here, the defendants have failed to note and observe that indeed in para 3 of the affidavit of evidence Ex.PW1/A, there is an error when PW1 is referring to the Board Resolution in favour of Sh.Nand Kishore as dated 01.6.2012, but when affidavit was tendered in evidence in this Court on 31.7.2017, the same PW1 testified about the relevant Resolution dated 26.8.2011 which is actually bearing the correct date and is correct resolution in favour of the Director Sh.Nand Kishore who instituted the suit.
Perusal of Ex.PW1/2 shows that it is signed by two Directors and it is true copy of the extract of the Resolution which Result : Suit decreed Page 31 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors authorized Sh.Nand Kishore to specifically deal with this case which is specifically referred to in the said resolution. Likewise, PW1 also deposed that he himself is authorized also by the Board of Directors to deal with this case by virtue of another Resolution dated 30.11.2016 which resolution, PW1 refers to in his examination in chief dated 31.7.2017 as Ex.PW1/2A. Nevertheless, PW1 being Director himself who is also swearing to be well conversant with the facts of the case is not dependent upon any Board Resolution. Memorandum and Article of Association of the plaintiff company is Ex.PW1/1 (Original Seen and Returned). At Srl. No.19 is the list of Directors and at Srl. No.20, the name of the Directors of the plaintiff company are provided which are Sh.Gopal Krishan, Sh.Naveen Chander (PW1), Sh.Nand Kishore, Ms.Usha and Ms.Daya. Despite all the defence on record to the effect that the plaintiff company has absconded, no clinching evidence has come on record to establish this fact.
PW1 has been cross examined by the counsel for the defendants and on 10.8.2017, he deposed that the plaintiff was earlier a partnership firm which was later on converted into a Private Limited Company on 31.3.2000. Copy of the certificate of Incorporation is part Result : Suit decreed Page 32 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors of Ex.PW1/1. Further, PW1 has also deposed that there are five Directors in the plaintiff company while specifically deposing that "some Directors are continuing even as on today. I own some of the share of the plaintiff company."
It is, therefore, established that PW1 is Director of the plaintiff company and Sh.Nand Kishore is still Director of the plaintiff company.
It is admitted in response to a question to that effect but PW1 deposed that there are many Directors of the plaintiff company and he is one of them and also clarified that he has deposed in this Court as AR of the plaintiff company. There is no bar in doing so and as stated earlier, the suit would have been instituted and plaint could have been signed and verified by the Company Secretary, any Director or any other principal officer provided he is able to depose to the facts of the case which the PW1 swore on solemn affirmation that he is.
It is true that the witness was also put a question regarding an anomaly in his affidavit regarding mention of Board Resolution in favour of Sh.Nand Kishore as that of 01.6.2012 instead of 26.8.2011 but the witness then clarified that it is typographical error and there is no Result : Suit decreed Page 33 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors resolution dated 01.6.2012 and therefore there is no ambiguity left qua the above.
A question was put to the witness about the contents of Ex.PW1/2 wherein while resolving, the board of Directors of the plaintiff made reference to the execution petition with title "M/s U.D.K.Papers Pvt Ltd versus M/s Shailja Papers Ltd & others" then pending in the Hon'ble High Court of Delhi. The witness was asked to clarify. According to him, no suit was instituted against the defendant by the plaintiff before institution of this suit. In response to the above noted question, the witness deposed that there are some technical lapses which he does not understand. He nevertheless stated that he participated in both the Board meetings besides other Directors.
The witness was then suggested that no agenda regarding these two meetings was ever circulated and adopted. However, the witness categorically denied this suggestion. No further question on the issue were asked thereafter from this witness PW1.
Order XXIX Rule 1 of the Code of Civil Procedure makes specific provision as to who may sign and verify a pleading on behalf of a Corporation but no provision is made as to who is competent to depose Result : Suit decreed Page 34 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors on behalf of a Corporation. Order 4 of the Code of Civil Procedure deals with institution of suits. Section 290 of the Companies Act is relevant along with Section 291 thereof in this context.
It is imperative for the plaintiff to present that a person who claims to be Director of a company must produce material to show so. In this context, the plaintiff company has produced original Certificate of Incorporation, Article and Memorandum of Association along with list of Directors issued from the office of Registrar of Companies.
In "R. Narain Dyeing & Printing Mills Pvt Ltd v Parvinder Diwan" reported as 2005 (83) DRJ 465 (DB), Hon'ble High Court of Delhi had rejected an application of a person claiming to be Director of the company having regard to the fact that he produced no document from the office of Registrar of Companies to show the change in the constitution of the company, and therefore, it was held that the said person had no locus to even file the application especially in view of the provisions of Section 291 of the Companies' Act.
Regarding institution of the suit which is an issue at hand and under determination, observations made in "M/s Nibro Ltd v Result : Suit decreed Page 35 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Isurance Company Ltd" reported as AIR 1991 Delhi 25, are very relevant. It has been held that unless power to institute a suit is specifically conferred on a particular Director, he has no authority to institute a suit on behalf of the company and that such a power can be conferred by the Board of Directors.
It is pertinent to note here that the defendants have only raised objection to the effect that the plaintiff did not produce the original Minutes Book. This Court has considered this fact but as a matter of fact since no such suggestion has been given to PW1 regarding the above to supplement that no such Board meeting took place, it has to be held that fact in issue is unchallenged. Nevertheless, in "Rob Mathys India Pvt Ltd v Synthes AG Chur" reported as 1998(1) Recent Arbitration Judgments (RAJ) 396, it is specifically held that Order XXIX Rule 1 CPC does not authorize a person mention therein to also institute suits on behalf of the company.
In the present case, the issue under consideration is about the due signing and verification and not institution. Institution of suit is governed under Order IV CPC.
It is observed in M/s Nibro Ltd supra, that "it is well settled that under Section 290 of the Companies' Act except where Result : Suit decreed Page 36 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in its General Body Meeting, in all other cases, the Board of Directors are entitled to exercise its power. The individual Directors have only such powers as are vested in them by the Memorandum and Article of Association. However, the question to institute a suit on behalf of a company, having farreaching effect, is not a technical matter. It often affects policy and finance of the company. Thus unless the power to institute a suit is specifically conferred on a particular Director, he has no authority a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors on any person only by passing a resolution in that regard".
In view of the above, all the arguments of the defendants are found pertaining to institution of a suit which is not the subject matter of issue no.1. Competence of PW1 to depose has not been challenged by the defendants as their focus remained on the issue of institution only.
PW1 proved that Sh.Nand Kishore as authorized to sign and verify the pleadings and PW1 clarifies that mentioning "execution petition" in Ex.PW1/2 is a technical matter which he could not Result : Suit decreed Page 37 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors comprehend. However, he is a Director of plaintiff, which a proven fact.
PW1/2A was not required but PW1 has still proven it and again no objection is raised or a question or even a suggestion was put to him on behalf of the defendants regarding nonproduction of original Minutes Book. This resolution is in respect of change of Authorized Representative of the company from Sh.Nand Kishore to Sh.Naveen Chander to contest and to continue with the case which has been filed by this plaintiff against the defendant and it is specifically noted therein that the case was pending in the Court of 'Ms.Vandana Chauhan, learned Addl.Distt Judge, Delhi' at the relevant time. Accordingly, this above noted fact also clarifies that mentioning of 'execution petition' in the earlier resolution does not vitiate the same.
Lastly, in "Vimal Telekronix Pvt Ltd v M/s Tata Telecom Ltd" reported as 2013 (IX) AD 62, reliance is again made on M/s Nibro Ltd supra, besides other cases on the point wherein similar objection was taken by the defendant. In that case, Director/Authorized Representative Sh.Vimal Gupta deposed to be authorized by the Board of Directors to sign and verify the plaint as well as to institute the suit vide Board Resolution copy of which was placed on record. The plaintiff contended that absence of mentioning of power with Sh.Vimal Gupta to Result : Suit decreed Page 38 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors institute the suit should be ignored as a technical lapse while relying upon the judgment in "Mahanagar Telephone Nigam Ltd v Smt.Suman Sharma" reported as 2011 AD (Delhi) 331, it was held that the reliance was misapplied. In the judgment "Mahanagar Telephone Nigam Ltd v Smt.Suman Sharma"supra, it was held as under :
"Reading Order VI Rule 14, together with Order XXI Rule 1 of the Code of Civil Procedure, it would appear that even in the absence of any formal letter of authority or power of attorney having been executed, a person referred to in Rule 1 of Order XXIX can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation".
While differentiating "Mahanagar Telephone Nigam Ltd v Smt.Suman Sharma" ruling, Hon'ble High Court of Delhi applied the ratio of M/s Nibro Ltd supra.
Under Chapter IV of the Delhi High Court (Original side) Rules 1967, "a suit can be presented by a duly authorized agent or by an Advocate duly authorized by him for the purpose. The authorization, in the case of a company, can be given only after a decision to institute suit is taken by the Board of Directors of the Company, the Board of Directors may in turn authorize a person particular Director, Principal Officer or Secretary to institute a Result : Suit decreed Page 39 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors suit".
In the above circumstances, the Hon'ble High Court of Ddlhi in the case of "Vimal Telekronix Pvt Ltd v M/s Tata Telecom Ltd (Supra)" held that in the absence of specific authority in favour of Sh.Vimal Gupta in the Board Resolution to institute the said suit vitiated the institution itself.
In the instant case, the defendants have lost direction and have not attacked the plaintiff on the institution of the suit but only on signing and verifying the pleadings. No fault can be found in this context in the case of the plaintiff, and therefore, this issue is decided against the defendants and in favour of the plaintiff.
ISSUE No.2
2.Whether the defendants no.2 and 3 have been improperly joined as parties to the present suit? OPD Onus of this issue was upon the defendants. It is plea of the defendants no.2 and 3 that since they are not at all concerned with the dealings in question between the plaintiff and the defendant no.1 company, they are not liable for any payment or conduct of the defendant Result : Suit decreed Page 40 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors no.1 company. They have also pleaded that the plaintiff has failed to specify any definite role to them in the plaint and therefore, they have not been properly joined as parties to this suit.
As stated earlier, the defendant no.3 appeared as sole witness on behalf of the defendants but before his cross examination could conclude, right to lead further evidence by the defendant was closed vide order of the Court. The said order dated 20.11.2018 has attained finality, therefore, an argument was made that the evidence led by the DW1 till then can not be read.
In this context, so far as development of law is concerned, it is not a case where the defendant was not examined at all. On the contrary, DW1 was cross examined extensively on 20.2.2018, 16.7.2018 and 09.10.2018. Effacing from the record his complete testimony is, therefore, not in any contemplation and in any case the plaintiff can rely upon any part of such cross examination of DW1 that would be favouring the plaintiff. Regardless of it, an argument was made, though weak. However, it was duly made that this Court does not accept the testimony of DW1 which I am not inclined to agree with in totality.
So far as affidavits of other defendant no.2 namely Result : Suit decreed Page 41 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Sh.Dharmesh Mehta is concerned, such affidavit sworn on 08.1.2018 was also filed in defendants' evidence. The defendants had also proposed to examine one more witness namely Sh. Rahul Mishra and as per affidavit of the said proposed witness sworn on the same date, he is son of late Sh.G.S.Mishra. Argument of the plaintiff stands good so far as these two affidavits are concerned. These two affidavits can not be read and considered at all in evidence led by the defendants as these witnesses never appeared in the witness box. Having said so, affidavit of DW1 in evidence which is marked as Ex.DW1/A discloses clearly that the evidence is being led on behalf of all the defendants. The deposition therein is made in accordance with the pleadings i.e. the defence taken in the written statement.
At no place in the entire affidavit, DW1 has even uttered a single sentence regarding the plea that the defendants no.2 and 3 have been improperly joined as parties to the suit. This is not legal preposition as it is dependent upon the facts and allegations and averments that are to be proved by leading cogent evidence. No evidence has been adduced and as a matter of fact, even PW1 who has been cross examined on various occasions has not been put a single question in the above regard. This Court could not find even a single suggestion on this count that could have been offered to PW 1. Accordingly, the plea remains a paper Result : Suit decreed Page 42 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors plea only which is not backed by any kind of evidence, what to say an oral statement on oath.
On the contrary, this Court specifically observes that DW1 deposed in para 1 of the affidavit that being defendant no.3 himself and being Director of the defendant no.1 he is fully aware of the facts of this case and therefore, competent as well as authorized to make statement which he did in the affidavit Ex.DW1/A. Accordingly, if he claims to have complete knowledge of the facts, his bald plea that he as well as defendant no.2 have nothing to do with the transactions is not acceptable and believable. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE No.3
3.Whether the defendants had returned the defective goods on 02.2.2010 (actual and correct date 02.4.2010) and 05.4.2010 with debit notes? OPD This is most crucial aspect of the present case. Onus of this issue was upon the defendants.
In the joint written statement furnished by all the Result : Suit decreed Page 43 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors defendants, it is specifically raised as preliminary plea that the suit is liable to be dismissed as the entire transactions were done through common broker Sh.G.S.Mishra who certified and approved the fact that the entire lot of unused goods against invoices No.T049, T050 and T 051 were returned by the defendant to the plaintiff through him and Sh.Birij. Neither of them has appeared before the Court.
True, son of Sh.G.S.Mishra filed his affidavit in evidence at the behest of the defendant but he did not appear before the court to verify his testimony and identify the fact that signatures appearing on the delivery notes No.T049, T050, T051, T077 and T078; letters dated 23.10.2008 25.10.2008 and 2.6.11.2008; and affidavit of his father dated 18.2.2012, were indeed signed by his father. Thus the person who could have proven his signatures on these documents, according to affidavit of Sh.Rahul Mishra dated 08.1.2018, namely Sh.G.S.Mishra is already dead. The other person who could identify his signature i.e. his son has not appeared in the witness box.
So far as DW1 is concerned, he categorically deposed that the goods were returned in the manner above stated through broker Sh.G.S.Mishra who was independent broker working on behalf of both the parties to this lis. Mark D1 is purported to be list issued by the Result : Suit decreed Page 44 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Paper Merchants' Association (Registered) Delhi. It is basically a telephone Directory. The name of Sh.G.S.Mishra is appearing as "Mishraji" at relevant page which is marked as Mark D1. However, the original document was never produced. Nevertheless, the fact that Sh.G.S.Mishra was common broker has not been denied by the plaintiff. The issue is whether he actually returned any goods which were returned to the plaintiff through Sh.Birij ?
This deposition is found made by the DW1 in his affidavit. Mark D2 is the original affidavit of Sh.G.S.Mishra sworn on 18.2.2012 which was annexed by the defendants with their application seeking leave to defend the suit. The proposed witness did not appear in the witness box to identify signatures of his father on Mark D2, therefore, there is no reason for this Court to believe, ipso facto that the affidavit was indeed signed by Sh.G.S.Mishra, particularly when there is no independent identification of the deponent, made on the affidavit as stamp of the Oath Commissioner concerned shows that the person identifying the deponent is none other than "self".
The plaintiff is constantly denying the above fact, and therefore, the defendants were dutybound to prove this fact and despite an opportunity of having examined son of deceased Sh.G.S.Mishra, the Result : Suit decreed Page 45 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors defendants failed to avail it.
This brings the Court to the remaining documents which are marked as Mark D3, D4 and Mark D5 which are copies of the letters dated 23.10.2008, 25.10.2008 and 26.11.2008. These are merely photocopies and their second copy has not been proven by the defendants. These documents are purportedly signed by Sh.G.S.Mishra (as the name appears on signatures) and also on behalf of some employee of the defendant no.1 company from its Accounts Section. These three documents could have been proven by the defendants by producing either of these two persons who put their signatures thereon. However and surprisingly also, the defendants failed to produce concerned official from the Accounts Section in their defence.
Similar is the position with respect to the debit notes copies of which are Ex.DW1/2, Ex.DW1/3 and Ex.DW1/4. These delivery notes are purportedly signed on behalf of the defendant no.1 company as appears clearly from the copies of these documents. The person who signed them has not been produced by the defendants in evidence. Sh.Birij could have been common witness but none of the parties has called him. In these given circumstances, the question of return of the alleged defective goods becomes improbable.
Result : Suit decreed Page 46 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors The defendants are required to prove that there were defective goods before bringing the fact that such goods were actually returned. I have observed above that the defendants have not proven letters marked as Mark D2, D3 and Mark D4 and debit notes Ex.DW1/2, Ex.DW1/3, Ex.DW1/4 and Ex.DW1/5.
Nevertheless, Ex.DW1/P2 is copy of a document that was put to the PW1 during his cross examination and this document bears handwritten endorsement which reads "rejected material detail". It is a computer generated print out which thereafter describes Quantity and Description of material against quality of the goods. The witness was asked to confirm if the list is the same that is alleged to have been prepared qua the material returned. He answered in affirmation. He was promptly questioned that the materials reflected in the list which is alleged to have been shown as returned are the same as reflected in the debit notes Ex.D1/4 and Ex.D1/5. The witness responded that the material is the same and only nomenclature has changed based on the quality of the material.
During the course of arguments, practical comparison was attempted by the counsel for the plaintiff qua the material referred to in Result : Suit decreed Page 47 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors the list Ex.DW1/P2 with the material referred to in the debit notes Ex.DW1/2 to Ex.DW1/5. This comparison actually reveals that the plaintiff is correct that no correspondence has been provided by the defendants qua the orders in question and as a matter of fact, the witness of the defendants did not turn up after this cross examination dated 09.10.2018. This is to be held against the defendants.
Much arguments have been made by the defendants in the written submissions that contents of affidavit of PW1 particularly from paras 9 to 16 are beyond pleadings. This court has considered this argument. Suffice is to say that the defendants are ignoring the fact that the pleadings are not only made in the replication but previously also such pleadings were made in response to the application for leave to defend i.e. when they first placed defence themselves incorporating many of the pleas taken by them in their application for leave to defend in their own written statement, even though there was no such averment that was made in the suit plaint. I am, therefore, not inclined to accept the above argument and ignore the testimony of PW1.
Arguments are also made regarding the fact that plea of the plaintiff of having changed their godown is unproved. In my considered Result : Suit decreed Page 48 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors view, the question of considering this argument would arise only when the defendants prove firstly, that the concerned goods were affected and that intimation was made about them by proper delivery of the letters marked as Mark D2, DW3 and Mark D4 followed by any actual delivery of such goods to the plaintiff through Sh.G.S.Mishra and that, secondly, such delivery was made to the employee of the plaintiff namely Sh.Birij. These are the allegations made by the defendants and burden to prove the facts remained upon the defendants. Since there is no cogent evidence led by the defendants on the above aspect, it is to held that they have failed to return the rejected/defective goods along with debit notes dated 02.4.2010 and 05.4.2010, to the plaintiff.
The argument made by the learned counsel for the defendants that the suit is liable to be dismissed in view of provisions of Section 43 of the Sale of Goods Act 1930 can not be found attracted to the facts of the present case, the defendants have failed to prove that any defective goods were supplied. This issue is, therefore, decided against the defendants and in favour of the plaintiff.
ISSUE No.4
4.Whether the plaintiff is entitled to recovery of an amount of Rs.16,73,782/ from the defendants towards the Result : Suit decreed Page 49 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors unpaid price of the goods supplied? OPP Onus to prove this issue remained upon the plaintiff. While deciding issue no.3, this Court has returned a finding that the defendants have not proven the fact that they received certain defective goods as is averred by them or that they returned the said defective goods to the plaintiff.
The question, therefore, arises for consideration is the fact that there is no denial on the part of the defendants that the goods referred to in the concerned invoices were not supplied to them. A question also arises for consideration that the defendants did make on account payment of the goods supplied to them and these payments are according to the plaintiff - a sum of Rs.65,000/ paid on 17.1.2009 and another sum of Rs.1,36,599/ paid on 16.3.2009. In response, it is the case of the defendants that out of the five bills mentioned in the plaint, the defendants no.1 did not pay amount for the first three bills but paid the amount for the last two bills totaling Rs.1,36,599/ and according to the written submissions, these amounts were paid for adjustment of invoices No.T077 and T078. This is the precise amount of the sum total of both the above noted invoices. It is the case of the plaintiff that the defendants made no payment at all against the goods supplied vide Result : Suit decreed Page 50 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors invoices No.T049, T050 and T051 Ex.PW1/3 (collectively).
There are five delivery notes in respect of these supplies which are bearing No.049 dated 22.10.2008, No.050 dated 23.10.2008, No.051 dated 24.10.2008, No.077 and No.78 both dated 18.2.2009. Delivery under these delivery notes which are the carbon copies of form DVAT33 issued by the plaintiff company in the name of the defendant no.1 company under Rules of Delhi Value Added Tax Rules, 2005, is not in denial and so is the price of the goods.
After giving adjustment of the amount already paid i.e. Rs.1,36,599/and Rs.65,000/, the amount left would come out to be Rs.16,73,782/ which comprises of the balance amount of bills No.T 049, T050 and T051. This is the amount in the suit.
Towards interest component, Ex.PW1/7 is the calculation sheet of interest due and levied at the rate of 30% per annum upon this amount, calculated upto 30.9.2011, which is shown as Rs.14,55,740/.
Ex.PW1/4 is the statement sheet purported to be ledger account of the defendant no.1 maintained by the plaintiff company for Result : Suit decreed Page 51 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors the period April 2008 to 31.3.2009 i.e. the period during which the related transaction between the parties took place. Admittedly, the plaintiff has not filed any certificate in accordance with Section 65B of the Indian Evidence Act in support of this electronic print out Ex.PW 1/4. The amendment in the Evidence Act came into effect by Act No.21 of the year 2000. Affidavit in evidence was filed subsequent to this date.
During the course of arguments, learned counsel for the plaintiff conceded that the plaintiff has faltered in proving this statement of account but according to him, this would not affect the claim of the plaintiff in view of the fact that the defendants never denied delivery of the goods and therefore the amounts in the invoices which are due. I agree with the said submission for the reason as contended by the counsel for the plaintiff. For reference, it would be worthwhile to note that invoices No.T049, T050 and T051 are reflected to the debit of the defendant no.1 company besides other invoices of sale as well as receipts.
Last sale is of 18.2.2009 against invoice No.078 and the last receipt is of 16.3.2009 amounting to Rs.1,36,599/. It also shows that a sum of Rs.65,000/ was paid, is evident from the entry dated 17.1.2009.
Result : Suit decreed Page 52 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors These entries remained unproved but pleadings constitute of admission of payment made by them and therefore statement of account Ex.PW 1/4, even if improper, does not affect the case of the plaintiff.
The plaintiff claims to have issued legal notice Ex.PW1/5 and the defendants are not denying its receipt. They are merely stating that they did not consider it appropriate to respond to the legal notice as it referred to the dates of purchase of material as 24.4.2008 and 16.3.2009 and therefore, in the absence of specific dates and bill numbers, they were unable to reconcile with the allegations in the Notice.
The Court has gone through the contents of this legal notice proved by the PW1. It is stated that the defendant no.1 purchased material form 24.4.2008 till 16.3.2009. For some reasons, the plaintiff has omitted the transactions taking place on 22.10.2008 and 23.10.2008. In my considered view, the same does not affect the case of the plaintiff as the sum total of arrears that defendants are allegedly in, is provided in the legal notice. The legal notice is speaking series of the transactions over a period of time and not giving just two specific dates in the legal notice, as is otherwise alleged by the defendants. The legal notice speaks of part payment of Rs.3,35,840/ which would include other Result : Suit decreed Page 53 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors previous payments as is evident from the fact that the balance amount as arrears is still shown as Rs.16,73,782/ i.e. the principal amount claimed. Over and above it, the plaintiff made claim for interest though without specifying the quantum of such interest.
The remaining documents exhibited by the plaintiff during the course of evince are irrelevant for determining this issue as the same pertains to the payment of rent to the godown owner Smt.Prem Lata and Sh.Lalla.
However, amongst these documents, is also present document Ex.PW1/14 (collectively) which is print out of the ledger account of the defendant no.1 company for the years 200809, 200910 and 201011. This document was never put to the witness for the defendants nor the defendants considered it appropriate to question PW1 on it. These are three sheets of paper which shows that a sum of Rs.16,73,782/ is due. Again, no certificate under Section 65B of the Indian Evidence Act has been proven on record to prove authenticity of Ex.PW1/14 (collectively). The result, therefore, will not be against the plaintiff for the reasons stated above.
Result : Suit decreed Page 54 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors To counter the argument that the amount in bills No.T049, T050 and T051 remained unpaid, the defendants tried to set up a case of having returned the defective goods with debit notes along with challans No.006 and 014 dated 02.4.2010 and 05.4.2010 respectively along with debit notes of Rs.5,01,585/ ad Rs.11,73,197/ total of which is Rs.16,73,782/ i.e. the principal amount.
The Court has already returned a finding that this fact could not be proved by the defendants while determining issue no.3 hereinabove.
Accordingly, all the arguments that the defendants have raised in the written submissions regarding the fact that the plaintiff had not shifted their godown or at least gave no intimation of it, to the defendants; that the goods were returned by them through their employee Sh.Birij, that the factum of the goods being defective was not only intimated orally to Sh.G.S.Mishra and three letters dated 23.10.2008 25.10.2008 and 2.6.11.2008 were also issued; that no prudent person would retain "termite infested" and "wet" paper material with other good stock; that godown of the plaintiff being so big that they could have easily kept the defective goods (though denied) separated with other normal stock, etc. etc. are inconsequential.
Result : Suit decreed Page 55 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors So far as oral evidence is concerned, PW1 has been suggested by none other than the defendants themselves that the transactions vide invoice dated 21.1.2009 bearing No.T0809/690 (Ex.PW1/D1) and the form DVAT33 dated 21.1.2009 (Ex.PW1/D
2) with Srl.No.2772 were made between the plaintiff and the defendants. The witness clarified that these documents are not filed by the plaintiff and that in any case the suit has been instituted on the basis of invoices Ex.PW1/3 (collectively) Relevance of this question has not been explained in the arguments placed on record by the defendants. No further question has been asked regarding these two documents by the counsel for the defendants from PW1 except a stray question and a suggestion recorded in the cross examination of PW1 dated 10.8.2017.
On this date, PW1 was asked to identify the signatures on this document at point A as that of Sh.Birij and the witness could not say whether the same are or not, although he was able to identify the same on the resignation letter of Sh.Birij Ex.PW1/11. Ex.PW1/D1 and Ex.PW1/D2 are the photocopies. They are dated 21.1.2009.
The first document is a tax invoice showing that the Result : Suit decreed Page 56 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors concerned paper material was supplied by the defendant no.1 to the plaintiff on this date for Rs.13,832/. The second document is a delivery note. Towards the end of the cross examination on 10.8.2017, PW1 was given a suggestion that Sh.Birij had signed on these two documents. The Court fails to understand as to what is intended by the defendants by producing these documents. If it is to show that there were transactions between the parties during the pendency of the dispute then it is their own case of having made the payment to the plaintiff even after the date of these documents i.e. 16.3.2009. If it is intended to show that Sh.Birij used to receive goods on behalf of the plaintiff, then the dates of alleged return of the defective goods are stated to be 02.4.2010 and 05.4.2010. Sh.Birij resigned on 31.7.2009 as per Ex.PW1/11.
In the written submissions, a stand is taken that the date of these two documents is post the date of transactions in the first three invoices and therefore, the plaintiff's stand is belied as they were not supposed to make payment under invoice Ex.PW1/D1 as their own payment by the defendant no.1 was outstanding. This is mere argument and it has not been supported by leading any evidence. PW1 has clarified in his answer to the question in this respect stating that he had connected the defendants including Sh.G.S.Mishra regarding the issue of Result : Suit decreed Page 57 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors non payment under the first three invoices. This these documents make no difference to the plaintiff's case or defendants' defence.
It is relevant to note that the DW1 in his cross examination admitted that the defendant no.1 company was maintaining 'Tally Software' at the relevant time and they could check status of the stock of goods while sitting in their office. Still, the debit notes were generated manually and therefore, it does not stand to reason.
Nevertheless, no stock register is produced by the defendants to show the alleged return of stocks despite a series of questions put by the counsel for the plaintiff to the DW1 on 20.2.2018, and 16.7.2017 clearly indicate that the answers given by the witness reflects lack of his knowledge or his attempts to avoid answers by feigning ignorance. Needless to say, he did not turn up for his cross examination to be completed.
Nevertheless, the fact remains that the plaintiff has led cogent and believable evidence as against the defendants.
Having regard to the discussion made above, this Court is of the view that the plaintiff has proved that the amount in invoices Result : Suit decreed Page 58 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors No.T049, T050 and T051, a sum of Rs.16,73,782/ {Rs.17,38,782/ (amount of these three invoices) minus the sum of Rs.65,000/ paid on 17.1.2009) equalling to Rs.16,73,782/} remains unpaid. Hence the issue is decided in favour of the plaintiff and against the defendants. The sum adjudged herein above shall form as principal sum adjudged to the entitlement of the plaintiff.
Issue No.4 is answered accordingly in plaintiff's favour.
ISSUE No.5
5.Whether the plaintiff is entitled to interest? If yes, at what rate and for what period? OPP Onus to prove this issue is upon the plaintiff and as per the plaint, interest at the rate of 30 per cent per annum has been sought as pendente lite as well as future interest.
Para 6 of the affidavit of evidence of PW1, Ex.PW1/A constitutes of statement of oath that the defendants purchased material against bills and failed to pay the balance amount after the expiry of 30 days and thus are liable to pay interest at the rate of 30 per cent per annum on the delayed period against the bills.
Result : Suit decreed Page 59 of 65CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Terms are stated to be reflected in each of the bills. This interst is stated to be Rs.14,55,740/ calculated upto 30.9.2011 and calculation sheet of interest component is Ex.PW1/7. The defendants have denied that they are liable to pay any interest whatsoever as no amount was stated to be due at all. During the cross examination of PW 1, no questions were put upon interest component to him.
The invoices on record are Ex.PW1/3 (collectively). There is declaration at the bottom of the invoices "Interest @ 30% P.A. will be charged if the payment is not made on the due date"
As per terms and conditions printed on the bills, interest at the rate of 30 per cent per annum will be charged if the payment is not made on due date. As to what is the due date, is nowhere mentioned in the invoices and therefore, essential corollary to the above is that the 'due date' implies the date in the bills. The oral testimony, on the other hand, is that there was 30 days credit period.
To verify this fact, contents of legal notice will, therefore, become relevant. Its service is not disputed. Legal notice Ex.PW1/5 records in clause 3 that if payments were not made well in time i.e. after Result : Suit decreed Page 60 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors expiry of 30 days credit period that was agreed, the defendant was liable to pay interest at the rate of 30 per cent per annum as per terms contained in the invoices. It is, therefore, established that no written contract was ever executed between the parties qua interest component. A unilateral rate of interest is mentioned on the plaintiff's documents i.e. invoices.
At the time when the suit was earlier decreed on 19.8.2015, rate of interest allowed on the sum adjudged was only 12 per cent per annum that was granted holding that the rate of interest claimed at the rate of 30 per cent on the face of it was very high and can not be, therefore, granted.
In the case of "Vijay Mital v Bajaj Products & others", MANU/DE/2182/2015 [CS(OAS) No.754/2006 decided on 17.9.2015], it has been held as under :
"10. It can not be held that there was an agreement between the parties for the defendants to pay interest at 30% per annum simply and merely because the plaintiff has printed in the bill/invoice that 30% interest per annum will be payable on the balance due. A unilateral statement of one party in the facts of this case can not be taken as an agreement binding the parties. Also, rate of interest which is claimed by the plaintiff is usurious and in fact will be hit in spirit by the provisions of Usurious Loans Act, 1918 as applicable to Delhi. Further, a Result : Suit decreed Page 61 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors Division Bench of this Court in the judgment in the case of Pt.Munshi Ram & Associates (P) Ltd vs Delhi Development Authority (DDA), MANU/DE/2115/2010 : 2010(3) Arb. Law Reporter 284, has held that the Courts have power to interfere with the rate of interest if the rate of interest charged is found to be unduly excessive and usurious. Para 20 of the said judgment reads as under :
'20. We are unequivocally of the view that the authority of an arbitrator to grant compound interest can only be under a contract as the applicable statutes, as interpreted by the Supreme Court, permitting grant of interest by an arbitrator being Section 29 of the old Act, Section 34 of the said Code read with Section 41 of the old Act and Section 3 of the Interest Act do not permit specifically the grant of such compound interest. the position is thus same in respect of the authority to grant compound interest under the new Act and the old Act. We also make it clear that even where there is such a provision in the contract, the authority of the Court is not taken away not to grant such compound interest if it is in conflict with or in violation of the public policy of India as observed in para 18.3 of State of Haryana & ors v S.L.Arora & Company's case (supra). As for the facts of the present case are concerned, as already noticed, there is no contact for compound interest and thus compound interest can not be awarded'.
Accordingly, the Court granted simple interest at the rate of 12 per cent per annum.
Result : Suit decreed Page 62 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors In the case of "Sanjay Mittal v Sunil Jain",
MANU/DE/4564/2018 [RFA 823/2006 and 74/2007 decided on 07.12.2018], the plaintiff claimed contractual rate of interest at the rate of 2 per cent per month. In this case also, the Court examined all the pleas including plea of interest and held as under :
"The appellant/plaintiff is not entitled to interest @ 2 % per month. This rate of interest is usurious and against the public policy. It has been held by the Division Bench of this court in the case of Pt.Munshi Ram & Associates (P) Ltd vs Delhi Development Authority (DDA), MANU/DE/2115/2010 that higher rates of interest which are against public policy can be struck down by the court by finding such rates of interest to be against public policy. Any contract which is against the public policy is void as per Section 23 of the Indian Contract Act, 1872. In my opinion, therefore, appellant/plaintiff is entitled to interest only @ 9 % per annum".
For the reasons aforestated, I also find myself in complete agreement with the ratio of the judgments cited above and disagreement with the plaintiff that unilateral rate of interest at the rate of 30 per cent per annum was an agreed contact between the parties. Thus grant of bank rate of interest prevalent presently will suffice the ends of justice. Accordingly, in my considered view, the plaintiff is entitled to and is awarded interest on the principal sum adjudged at the rate of 6 per cent Result : Suit decreed Page 63 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors per annum.
Regarding the period from which date interest is to be granted, it is own case of the plaintiff that there was 30 days credit period starting from the dates of the bills. However, this fact is not mentioned in the invoices.
In Ex.PW1/9, the relevant due dates against the bills are a under :
(i) Bill No.T049 is dated 22.10.2008 and 30 days credit period would expire on 21.11.2008;
(ii) Bill No.T050 is dated 23.10.2008 and 30 days credit period would expire on 22.11.2008; and
(iii) Bill No.T051 is dated 24.10.2008 and 30 days credit period would expire on 23.11.2008 Accordingly, the said rate of interest (i.e. 6% p.a.) is granted on the principal sum adjudged with effect from the common date when interest started to accrue i.e. 25.11.2009. This issue is accordingly decided in favour of the plaintiff and against the defendants.
RELIEF In view of the discussion made herein above, the suit of the Result : Suit decreed Page 64 of 65 CS 19593/2016 M/s UDK Papers Pvt Ltd vs M/s Shaileja Papers Ltd & ors plaintiff is decreed in favour of the plaintiff and against the defendants jointly and severally, in the sum of Rs.16,73,782/ (Rupees sixteen lacs seventy three thousand seven hundred and eighty two only) i.e. the principal sum adjudged, along with presuit, pendente lite and future interest at the rate of 6 per cent per annum with effect from 25.11.2009 till realization. The plaintiff will be given adjustment of amount of Rs.8,36,891/ (already deposited) from principal amount alongwith interest accrued thereupon of which, plaintiff may apply for release.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Announced in the open Court (MANISH YADUVANSHI)
on this 09.9.2019 ADDL. DISTRICT JUDGE-11
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
Result : Suit decreed Page 65 of 65