Delhi District Court
Commercial Court-05 vs . on 6 August, 2022
1
In the court of Sh. Ashwani Kumar Sarpal, District Judge-
Commercial Court-05, Central District, Tis Hazari, Delhi.
M/s DRK Engineers Pvt. Ltd.
vs.
M/s USR Engineers
[CS (Comm) No.: 101/2020]
Date of Institution ---- 14-01-2020
Date of decision ------ 06-08-2022
(Suit for recovery of ₹ 3,42,265/-)
********************************
EX-PARTE JUDGMENT:-
1. Plaintiff is a private limited company and engaged in the business of dealing with pumps, motors, transformers and various other equipments and filed the present suit on 14-01-
2020 against the defendant firm with the averments that in/ around April 2016, defendant had approached the plaintiff for supply of goods which were supplied to it from time to time against different purchase orders & bills. The last supply was made on 03-09-2016. Defendant was making part payments which were adjusted in the ledger account. According to the plaintiff, defendant had failed to pay balance amount of ₹ 3,42,265/- despite repeated requests and legal notice dated 11-03- 2019. Thereafter, plaintiff had filed the present suit for recovery 2 of ₹ 3,42,265/- alongwith pendente-lite and future interest @ 18% per annum after completion of necessary formalities under Section 12A Commercial Courts Act. According to the plaintiff, the last payment of ₹ 86,000/- was made by the defendant on 18- 01-2017 through cheque as reflected in the ledger account.
2. Summons of the suit was served upon the defendant by way of publication on 17-11-2021 but none appeared on its behalf so it was proceeded ex-parte and its right to file written statement was also closed vide order dated 24-01-2022.
3. In order to prove its case, plaintiff examined its AR Sh. Pankaj Jain as PW-1 who repeated the same averments in his affidavit of evidence as mentioned in the plaint and exhibited various documents pertaining to the business transactions in question. I have heard counsel for the plaintiff and gone through the record. A question of limitation had also arisen in this case, whether the time period has to be calculated from the date of the bills or from the date of last payment.
4. PW-1 proved board resolution, purchase orders, invoices, DVAT-33 forms, ledger account, test certificate, legal notice etc., I find no ground to disbelieve the statement of PW-1 given on oath that defendant had purchased goods from the plaintiff from time to time but failed to make the complete payment. Defendant has made certain part payments from time to time which were credited in the ledger account.
35. The record shows that the transactions between the parties started from 09-05-2016 which continued till 03-09-2016. The suit was filed on 14-01-2020. The plaintiff had approached the DLSA for pre-institution mediation on 17-08-2019 which was closed on 19-09-2019 and the certificate of non-starter was issued to the plaintiff on 25-09-2019. Thus the period spent in pre-institution mediation as required under Section 12 A of Commercial Court Act is to be excluded.
6. Admittedly, the transactions between the parties were not covering within the preview of open, running and mutual account as per Article 1 of the Limitation Act. In the ordinary course of events, the suit filed qua certain bills raised prior to three years of the period from the date of filing of the suit is time-barred. However, the counsel for the plaintiff cited case- laws Rajesh Kumari Vs Prem Chand Jain, 1997 (42) DRJ 280 and Rakesh Gupta Vs Khoday India Ltd., 2013 (133) DRJ 39 and argued that the limitation has to be counted from the date of the last payment which was 18-01-2017 made through cheque. As per counsel for the plaintiff, the payment made through cheque extends the limitation under Article 19 of the Limitation Act and accordingly, the suit was to be filed on or before 18-01- 2020. However, this suit has been filed on 14-01-2020 so has to be treated as within limitation, even if, the period spent in pre- institution mediation of 38 days from 17-08-2019 to 25-09-2019 is ignored. In such circumstances, the suit filed has to be treated as within limitation period from the date of the last payment made and the submissions made by the counsel for the plaintiff has to be accepted.
47. One of the terms of the invoices was that defendant will be liable to pay interest @ 18% per annum if the payment is not made within the stipulated time. In my opinion the interest claimed @ 18% per annum is justified and appropriate because the transactions were commercial in nature.
8. In view of the above, present suit is decreed and defendant is directed to pay sum of ₹ 3,42,265/- alongwith interest @ 18% per annum from the date of filing of the suit till realization with costs plus additional ₹ 1,000/- which plaintiff incurred in pre-institution mediation as required under Section 12A of Commercial Courts Act. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance. Digitally signed by ASHWANI ASHWANI KUMAR (Ashwani Kumar Sarpal) KUMAR SARPAL Dt. 06-08-2022 District Judge-Commercial-5 SARPAL Date:
2022.08.06 Central District, Delhi. 14:51:09 +0530