Delhi District Court
(Commercial-02) vs Movie Times Cineplex Pvt. Ltd on 30 July, 2021
IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL-02)
SOUTH DISTRICT, SAKET COURT, NEW DELHI
CS (COMM) 379/19
Aggarwal Traders
Through Proprietor, Bajrang Aggarwal,
B-445, Sangam Vihar, New Delhi-110080
..... Plaintiff
Versus
Movie Times Cineplex Pvt. Ltd.
Through Director, Anil Kapoor,
Kamal Cinema Building, First Floor,
Safdarjung Enclave, New Delhi-110029
..... Defendant
Date of Institution : 26.11.2019
Date of arguments : 27.07.2021
Date of decision : 30.07.2021
JUDGEMENT
1.1 This is a suit for recovery. In brief, the case of the plaintiff, M/s Aggarwal Traders is that it is a proprietorship firm whose proprietor is Shri Bajrang Aggarwal, having office at Sangam Vihar, New Delhi and is engaged in the business of selling of construction material.
1.2 Defendant, M/s Movie Times Cineplex Pvt. Ltd. is a private limited company, having office at Safdarjung Enclave, New Delhi. Defendant is stated to have purchased construction material from the plaintiff since 2016, supplied through transporters at different sites belonging to the defendant. It is stated that plaintiff used to raise invoices for the material supplied to the defendant and plaintiff used to maintain a running account in the ordinary course of business. 1.3 It is stated that during the period between 01.07.2017 to 31.03.2017, material was supplied to the Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 1 of 23 defendant as per the invoices for a sum of Rs.12,28,290/-. It is stated that defendant had made a payment of Rs.3,03,714/-. It is submitted that balance amount due and payable by the defendant as on 31.03.2018 was Rs.9,24,575/-. It is further stated that no goods were supplied to the defendant after 11.02.2018. On repeated requests by the plaintiff to clear the outstanding amount, defendant paid a sum of Rs.2,28,166/- through RTGS on 25.04.2018. Defendant assured to make the balance amount of Rs.6,96,409/- but has not paid the same till date. A legal notice dated 22.05.2019 was served on the defendant claiming the said amount alongwith interest @ 12% per annum but despite service of legal notice on 23.05.2019, no payment has been made by the defendant.
1.4 According to plaintiff, apart from the principal amount of Rs.6,96,409/-, defendant is liable to pay interest @ 12% per annum from 25.04.2018 to 25.11.2019 amounting to Rs.1,32,317/-. Plaintiff has claimed a total sum of Rs.8,28,726/- as on the date of filing of this suit. Plaintiff has prayed for a decree in the sum of Rs.8,28,726/- alongwith pendent-lite and future interest @ 12% per annum with costs.
2.1 The suit is contested by the defendant by filing a written statement. In the preliminary objections, defendant has stated that suit is not maintainable U/s 69(2) of Partnership Act as plaintiff is a partnership firm and the same is not registered. It is stated that no amount is due and defendant has made all the payments by cheque. It is stated that the suit has not been filed by the duly authorized person and has not been filed as per the provisions of CPC. It is submitted that defendant had not Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 2 of 23 received any material against the alleged bill bearing nos. 124, 126, 145 and 146.
2.2 On merits, it is denied that plaintiff is a proprietorship firm. The relationship that defendant had been purchasing construction material is stated to be a matter of record. The contents of para 3 to 5 have been collectively replied. The averments of the plaint regarding supplying of material in the sum of Rs.12,28,290/- during the period between 01.07.2017 to 31.03.2018 has not been denied specifically. However, it is submitted that defendant had made all the payment due for the material received and there was no outstanding amount which the defendant is liable to pay. It is submitted that there was no outstanding amount of Rs.9,24,575/- as on 31.03.2018 as alleged by the plaintiff in the suit. It is submitted that after making payment of Rs.2,28,166/-, no amount remains due and payable and that suit is false. 2.3 It is further submitted that plaintiff has purposely not filed the bills for the alleged due amount of Rs.6,96,409/- nor has filed any proof of delivery of goods and receipt of the same by the defendant. It is further stated that incomplete statement of account has been filed by the plaintiff on record and no entry with respect to the payment receipt of Rs.2,28,166/- on 25.04.2018 is reflected in the statement of account. It is submitted that issue of payment of interest does not arose as there is no outstanding amount against the defendant.
2.4 In the written statement , in response to para 8 and 9 of the plaint, jurisdiction of the court to try and entertain the suit is denied. In response to valuation, it is submitted that suit Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 3 of 23 has been wrongly valued so no amount is due and payable. No reasons have been given as to on what basis the same has been denied. It is stated that there subsists no cause of action and suit is liable to be dismissed U/o VII Rule 11 CPC for want of cause of action. Defendant has prayed for dismissal of the suit.
3. Replication was filed by the plaintiff on 3rd February, 2020 wherein plaintiff reiterated the averments made in the plaint and denied the averments made in the written statement.
4. It is pertinent to note that on 3rd February, 2020, defendant was ordered to file a proper affidavit of admission/denial of documents as per the amended CPC within two weeks and finding elements of settlement, this court had referred the case for Mediation and parties were directed to appear before the Mediation Center, South, Saket, New Delhi on 6th February, 2020. Parties failed to settle the matter in the Mediation Center. On 17.09.2020, defendant was again ordered to comply with the order dated 3rd February, 2020 and was directed to file proper affidavit. However, defendant has failed to comply with the said orders. On 21.12.2020, admission/denial of documents was effected. On behalf of defendant, bill no. 124, 126, 145 and 146 were denied. It may be noted that denials of documents by the defendant in the written statement as well as in the statement of admission/denial of documents on affidavit are not in accordance with Order VIII Rule 3A and 5 CPC as well as Order XI Rule 4 CPC.
5. Case management hearing was held . After hearing the counsels for the parties from the pleadings of the parties, following issues were framed :-
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 4 of 231. Whether plaintiff is entitled to the recovery of an amount of Rs.6,96,409/- as claimed with respect to supply of building material to the defendant vide bill nos. 124, 126, 145 and 146 dated 15.01.2018, 21.01.2018, 10.02.2018 and 11.02.2018?
OPP
2. Whether plaintiff is entitled to interest as claimed @ 12% per annum? OPP
3. Whether plaintiff is a partnership firm as alleged by the defendant? If so, to what effect? OPD
4. Relief
6. To prove its case, plaintiff examined Shri Bajrang Aggarwal, Proprietor of M/s Aggarwal Traders, as PW-1. Defendant examined Shri Anil Kapoor, authorized signatory of defendant, M/s Movie Times Cineplex Pvt. Ltd. as DW-1.
7. This court has heard submissions advanced by Shri Khalin Chadha, Ld. Counsel, appearing for the plaintiff and Shri Surinder Goel, Ld. Counsel, appearing for the defendant and perused the material placed on record.
Issue-wise findings
8. Issue No. 1 is "Whether plaintiff is entitled to the recovery of an amount of Rs.6,96,409/- as claimed with respect to supply of building material to the defendant vide bill nos. 124, 126, 145 and 146 dated 15.01.2018, 21.01.2018, 10.02.2018 and 11.02.2018? OPP 8.1 At the outset, this court shall deal with the prelimnary objections raise during arguments. Ld. counsel for the plaintiff argued that AR of the defendant who had signed Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 5 of 23 and filed the written statement was not duly authorized at the time of signing and filing the same. It is submitted that Shri Anil Kapoor, authorized signatory signed the vakalatnama in favour of his counsel on 07.01.2020 and signed the written statement and accompanying affidavit on 09.01.2020, whereas the Board of Resolution authorizing Mr. Anil Kapoor was prepared on 10.01.2020 and filed later on and, therefore, there was no authorization in favour of defendant's AR as required by Section 179 of the Companies Act, 2013 as on the date of signing of vakalatnama and written statement. It is further argued that provision of Order III Rule 1 of CPC is violated as when Mr. Anil Kapoor (Authorized Representative of the defendant) signed the vakalatnama on 07.01.2020, he had no authority himself to defend the present suit. 8.2 Sh, Chadha further argued that there is no authority of Sh. Anil Kapoor, to sign and verify the written statement in accordance with provisions of Order XXIX Rule 1 CPC as he is neither the Director, Principal Officer or Secretary of the Company. It is further argued that the mandatory requirement of affidavit/statement of truth as per Section 26 r/w Order VI Rule 15A of CPC as amended by Commercial Courts Act, 2015 has not been filed by the defendant.
8.3 It is further argued by the Ld. counsel for plaintiff that affidavit of admission/denial filed by the defendant is not in accordance with provisions of Order XI Rule 4 CPC as amended by Commercial Courts Act, 2015 despite this court's specific direction to rectify the same in its order dated 03.02.2020 and 17.09.2020 and therefore, the court may proceed to allow the present suit in terms of provisions of Order Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 6 of 23 XVI Rule 8 CPC as amended by Commercial Courts Act, 2015. It is argued that defendant had filed documents on 20.03.2021 without stating any explanation for delay of 443 days. 8.4 On the other hand, Sh , Goel , Ld. counsel appearing for defendant submitted that the issue regarding authorization of Shri Anil Kapoor and his authority to file and sign was not raised by the plaintiff earlier either in the replication or at the time of framing of issues and that is why no such issue was framed in this regard on 21.12.2020 when issues were framed by this court during case management hearing. It is submitted that the written statement was filed on 10.01.2020, before the transfer of this case by Ld. ADJ-02, South, Saket Court, New Delhi to this Commercial Court, and that the Board resolution placed on record by the defendant which is Ex.DW- 1/2 is dated 10.01.2020, therefore, on the date of filing of written statement, Shri Anil Kapoor had been authorized by the defendant.
8.5 In Nibro Limited Vs. National Insurance Company, AIR 1991 Delhi 25, our High Court noted as under :-
10. It will be useful to reproduce the two provisions of the Code of Civil Procedure, namely, Order 3, rule 1 and Order 29, rule 1, on which the plaintiff relies.
11. Order 3, rule 1 of the Code of Civil Procedure reads thus :
"Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or action, as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person."
12. Order 29, rule 1 of the Code of Civil Procedure reads thus :
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 7 of 23"In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or be any director or other principal officer of the corporation who is able to depose to the facts of the case."
13. Order 3, Rule 1 provides that any appearance, application or act in or to any court required or authorize by law can be made or done by the party in person or by his recognized agent or by a pleader appearing, applying or acting as the case may be, on his behalf. Provided of course, such an appearance, application or act in or to any court is required or authorized by law to be done or done by a party in such court. Where, however, there is an express provision of law, then that provision will prevail. Thus, if an authority is given to a pleader or a recognized agent as provided by law, the recognized agent or pleader can file an appearance of file a suit in court if the party himself is not in a position to file it. In my view, if a party is a company or a corporation, the recognized agent or a pleader has to be authorized by law to file such a plaint. Such an authority can be given to a pleader or an agent in the case of a company by a person specifically authorized in this behalf. In other words, a pleader or an agent can be authorized to file a suit on behalf of a company only by an authorized representative of the company. If a director or a secretary is authorized by law, then he can certainly give the authority to another person as provided under Order 3, Rule 1.
14. Order 29, Rule 1 of the Code of Civil Procedure provides for subscription and verification of pleadings and states that in suits by or against the corporation, any pleadings may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
8.6 In Indira Gandhi National Open University Vs. Sharat Das & Associates Pvt. Ltd., OMP (Comm) 26/2020 decided on 04.06.2020, Hon'ble Delhi High Court referred by learned counsel for the plaintiff, in para 31 it was observed as under :-
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 8 of 2331. Again in the case of SKS Power Generation (supra), a Co-ordinate Bench of this Court observed that when the petition lacks the basic documents such as Vakalatnama, Statement of Truth etc., it can be termed only as a "bunch of papers" and cannot be treated as proper filing so as to give the benefit in condonation of delay.
8.7 In the aforenoted case, Alka Kasana Vs. Indian Institute of Technology, CS (OS) 2348 of 2014 decided on 24.08.2015 was also quoted wherein it was observed that in case the plaint was not accompanied by an affidavit, in support of her pleadings at the time of institution of the suit would not be a ground to hold that the suit had not been duly instituted. It was observed that such an argument based on sheer procedural defects including failure on the part of the plaintiff to file a duly attested affidavit in support of the plaint cannot invalidate the suit and the defects were mere irregularities and were capable of being cured.
8.8 This court is in agreement with the submissions advanced by the Ld. counsel for the defendant that this issue regarding the authority had not been taken by the plaintiff in the replication or at the time of framing issues. There is no dispute that court can always add, delete or alter the issues and objections if they are legal in nature may be taken by the counsels at any stage or at the stage of final hearing. In the present case, this court finds that it is true that on 7 th January, 2020 when vakalatnama had been signed by Shri Anil Kapoor, authorized signatory of defendant, and on 9th January, 2020 when the written statement was signed by him, there is nothing on record to show any authorization in his favour by the defendant company till then and it was only on 10th January, Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 9 of 23 2020 at 11.00 am as shown by the Board Resolution Ex.DW-
1/2, Shri Anil Kapoor had been authorized to engage, appoint and nominate any attorney and to defend the suit including signing, verifying and attesting affidavit etc. It is also true that Shri Anil Kapoor, authorized signatory has not stated to be the director, principal officer or the secretary of the defendant company in the written statement or anywhere else and he is merely stated to be an authorized signatory who is well conversant with the facts and circumstances of the case. It may also be noted that while dealing with the question that there was no authorization originally of Sh. Anil Kapoor, a subsequent ratification and render it legitimate. Subsequent ratification of the acts of the agent by the principal can cure the original defect. In the present case, indisputably, the written statement had been filed on 10.01.2020 and in view of the Board resolution dated 10.01.2020 in favour of Sh. Anil Kapoor authorized signatory having been placed on record, the case of the defendant cannot be allowed to be defeated on this ground. 8.9 Now, coming to the merits regarding entitlement of the plaintiff, the case of the plaintiff, as pleaded in the plaint, is that as per the invoices, construction material for a total amount of Rs.12,41,750/- was delivered to the defendant during the period between May, 2016 to 31.03.2017 and the payment with respect to the said period was received although there was irregularities and delay in payment and on the assurance of defendant, plaintiff continued the delivery of material from time to time thereafter and during the period between 01.07.2017 to 31.03.2017, construction material was supplied to the defendant Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 10 of 23 as per the invoices for a sum of Rs.12,28,290/-. It is stated that defendant had made a payment of Rs.3,03,714/-. It is submitted that balance amount due and payable by the defendant as on 31.03.2018 was Rs.9,24,575/-. It is further stated that no goods were supplied to the defendant after 11.02.2018. On repeated requests by the plaintiff to clear the outstanding amount, defendant paid a sum of Rs.2,28,166/- through RTGS on 25.04.2018. Defendant assured to make the balance amount of Rs.6,96,409/- but has not paid the same till date despite service of legal notice dated 22.05.2019 claiming the said amount alongwith interest @ 12% per annum.
8.10 In its written statement, defendant has not disputed about the factum of receipt of the construction material from the plaintiff. The case of the defendant is that it has made all the payments by cheques and the last four bills no. 124, 126, 145 and 146 had been wrongly raised by the plaintiff to the defendant nor any material had been received. Defendant further alleged that false signatures have been affixed on the invoices. It is further the case of the defendant that vehicle number is not specified in the bills and during arguments, it was further contended that delivery challans are not placed or proved on record.
8.11 It may be noted that the provisions of the Code of Civil Procedure, 1908, in the application to any suit in respect of a Commercial dispute of a specified value stands amended in the manner as specified in the Schedule. As per the amended provision in the first schedule of the Code, Order VIII Rule 3A reads as under :-
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 11 of 23"3A. Denial by the defendant in suits before the Commercial Division of the High Court or the Commercial Court--
(1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the particulars of plaint he denies, which allegations he is unable to admit or deny, but which he requires the plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version. (4) If the defendant disputes the jurisdiction of the Court, he must state the reasons for doing so, and if he is able, give his own statement as to which Court ought to have jurisdiction.
(5) If the defendant disputes the plaintiff's valuation of the suit, he must state his reasons for doing so, and if he is able, give his own statement of the value of the suit.
Order 8 Rule 5 CPC reads as under :-
"Every allegation of fact in the plaint, if not denied specifically or by necessary implications, or stated to be not admitted in the pleading of the defendant, can be taken to be admitted except as against a person under disability. Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. "Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3-A of this order shall be taken to be admitted except as against a person under disability."
8.12 As per Order XI Rule 4 CPC, the statement of admissions and denials shall be set out explicitly, whether such party was admitting or denying :
(a) correctness of contents of a document;
(b) existence of a document; (c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation.--A statement of admission or denial of the existence of a document made in accordance with sub- rule (2) (b) shall include the admission or denial of the contents of a document.
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 12 of 23(3) Each party shall set out reasons for denying a document under any of the above grounds and bare and unsupported denials shall not be deemed to be denials of a document and proof of such documents may then be dispensed with at the discretion of the Court. (4) Any party may however submit bare denials for third party documents of which the party denying does not have any personal knowledge of, and to which the party denying is not a party to in any manner whatsoever. (5) An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement.
(6) In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria, - costs (including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party.
(7) The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents.
8.13 Perusal of the pleading shows that contents of paragraph 3 to 5 of the plaint have been collectively replied but each of the fact has not been denied specifically. It has not been denied by the defendant specifically that for the period starting from 1st July, 2017 to 31.03.2018 the materials were supplied to the defendant by the plaintiff as per the invoices for a sum of Rs.12,28,290/-. It has not been denied specifically that towards the said amount, defendant made a part payment of Rs.3,03,714/- through cheques on various dates. Defendant has only submitted that there was no outstanding amount of Rs.9,24,575/- as on 31.03.2018, as alleged by the plaintiff. Payment of Rs.2,28,166/- is also not disputed by the defendant. Defendant has submitted that after making of payment of Rs.2,28,166/-, no amount remains due and payable. 8.14 It has been wrongly stated by the defendant that plaintiff has purposely not filed the bills for the alleged due amount of Rs.6,96,409/- as plaintiff has placed on record all the Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 13 of 23 invoices, Ex.PW-1/9 to Ex.PW-16 having the similar receiver's signatures which include the invoices in the claimed balance amount of Rs.6,96,409/- which are Ex.PW-1/13 to Ex.PW-1/16. Plaintiff had filed ledger account, Ex.PW-1/17 for the period from 01.04.2017 to 31.03.2018 and also specifically pleaded about part payment of Rs.2,28,166/- through RTGS on 25.04.2018 by the defendant towards the outstanding amount. 8.15 In para 8 and 9 of written statement, defendant has even denied the jurisdiction of this court and stated that suit has been wrongly valued but it has not stated the reasons for doing so and how or why this court has no jurisdiction and has not stated as to which Court ought to have jurisdiction. Defendant has stated that suit has been wrongly valued but has not stated how it has been wrongly valued. Defendant has not stated its reasons for doing so and has not given its own statement of the value of the suit.
8.16 As per Order XI Rule 4 CPC, the statement of admissions and denials are required to be set out explicitly. In its affidavit of admission/denial of documents dated 09.01.2020, defendant has denied generally and vaguely the documents proved on record by the plaintiff. Defendant has improperly denied the invoices dated 15.01.2018, 21.01.2018, 10.02.2018 and 11.02.2018 (Ex.PW-1/13 to Ex.PW-1/17). Defendant has denied ledger account w.e.f. 01.04.2017 to 31.03.2018 (Ex.PW- 1/17), copy of tax invoices (Ex.PW-1/18). It is clear that defendant has not denied the documents as required by the law. Defendant has also not stated if he had denied the correctness of contents; existence; execution; issuance or receipt or custody of the aforenoted documents. No reasons have been set out for Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 14 of 23 denying the aforenoted documents. As per the provision, U/o XI Rule 4 CPC, bare and unsupported denials shall not be deemed to be denials of a documents. Thus, this court finds that the denial of these documents including invoices, Ex.PW-1/13 to Ex.PW- 1/16 shall not be deemed to denial as required by law. 8.17 Shri Surinder Goel, Ld. counsel appearing for the defendant contended that plaintiff has failed to prove its case as it has not filed or brought the original documents and has failed to prove the documents filed and relied upon by him which are Ex.PW-1/3 to Ex.PW-1/6 as he has not produced the bill books from which above documents have been drawn. It is further argued that plaintiff has not produced the original challans/delivery receipts through which goods have alleged to have been supplied. It is argued that plaintiff has not supplied the goods nor the defendant has received the same. In support of his submissions, Ld. counsel for the defendant has relied upon, State of Meghalaya & Ors. Vs. Joinmanick/Nosmel Giri, (1995) 2 Gauhati Law Reports 174.
8.18 In Mohinder Singh Vs. Jaswant Kaur, Civil Appeal No. 6706 of 2013 decided on 11.09.2019 {MANU/SC/1633/2019} Hon'ble Supreme Court held that the carbon copy prepared in the same process as the original document and once it is signed by both the parties assumes the character of the original document U/s 62 of The Indian Evidence Act.
8.19 Ld. counsel for the defendant argued that plaintiff has failed to prove the delivery of goods and failed to produce the documents in support thereof. In response, Ld. counsel for the plaintiff submitted that invoices, Ex.PW-1/9 to Ex.PW-1/12 Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 15 of 23 are admitted by the defendant to be true and correct in its affidavit of admission/denial of documents. It is pointed out that there are contradictory statements of defendant regarding signature of employee on the invoices. Defendant in its written statement has claimed that false signatures of the employee have been affixed on the invoices. However, in its affidavit of admission/denial of documents dated 09.01.2020, defendant has admitted invoices at Sr. No. 1 to 13. DW-1 in his affidavit by way of evidence, has submitted that signatures obtained are doubtful, however, in his cross-examination, DW-1 has stated that he cannot recognize the receiver's signatures. This court is in agreement with the submissions advanced by the Ld. counsel for the plaintiff and finds that defendant has taken shifted stands at different point of time in the pleading and in the evidence. 8.20 PW-1, Shri Bajrang Aggarwal in his deposition, during cross-examination has categorically stated that the orders used to be placed by Shri Vipin, Site In-charge, telephonically and he had personally gone to obtain receiver's signatures with respect to invoices no. 124, 126, 145 and 146 from Shri Vipin, Site In-charge and the system regarding delivery of goods and receipt of receiver's signatures on the invoices was prevailing since beginning. DW-1, Shri Anil Kapoor, who appeared on behalf of defendant stated that he could not recognize the receiver's signatures on Ex.PW-1/9 to Ex.PW-1/12. He admitted payments for aforenoted invoices were made after verification by him and all payments were made by cheques. This court finds that signatures of the receiver/acknowledgment on behalf of the defendant on the invoices Ex.PW-1/9 to Ex.PW-1/16 are similar on comparison even by the naked eye. When DW-1 is not able Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 16 of 23 to recognize the receiver's signatures on Ex.PW-1/9 to Ex.PW- 1/12, therefore, it is not understandable how he can deny signatures of the receiver/site supervisor on Ex.PW-1/13 to Ex.PW-1/16.
8.21 On appreciation of the material on record as a whole, this court finds that plaintiff has established its version. This court finds no merit in the contention raised by Ld. counsel for defendant regarding production of original challans, delivery receipts and bill books. Plaintiff has proved the invoice No. 124 dated 15.01.2018 for Rs.2,77,200/- (Ex.PW-1/13); invoice no. 126 dated 21.01.2018 for Rs.1,61,176/- (Ex.PW-1/14); invoice no. 145 dated 10.02.2018 for Rs.2,04,488/- (Ex.PW-1/15) and invoice no. 146 dated 11.02.2018 for Rs. 53,550/- (Ex.PW-1/16). All these invoices bear signatures of site supervisor on behalf of the defendant. It has already been noted that signatures of the receiver as acknowledgment of having received the goods on these invoices which were denied by the defendant tally with the signatures of the receiver on behalf of the defendant on the previous invoices issued in the year 2017, Ex.PW-1/9 to Ex.PW- 1/12. Furthermore , document Ex. PW-1/18 proved by PW-1 shows that requisite GST had been deposited by the plaintiff with respect to the invoices dated 15.01.2018 (Ex.PW-1/13), invoice dated 21.01.2018 (Ex.PW-1/14) ,invoice dated 10.02.2018 (Ex.PW-1/15) and invoice no. 146 dated 11.02.2018 (Ex.PW- 1/16) questioned by the defendant and this fact also corroborates plaintiff version and falsifies the defence . DW-1 in his deposition stated that all payments were made by cheques. Defendant has failed to establish payment of any cheque in regard to goods received vide invoices, Ex.PW-1/13 to Ex.PW-
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 17 of 231/16. On appreciation of evidence on record, this court is satisfied that the site supervisor of the defendant had received the goods in question from the plaintiff vide invoices, Ex.PW-1/13 to Ex.PW-1/16 and there is nothing on record to show that defendant had made payment for these goods except an amount of Rs.2,28,166/- through RTGS on 25.04.2018. Thus, defendant has failed to establish its version or to disprove the case of the plaintiff.
8.22 In the result, this court finds that plaintiff is entitled to recover the principal amount of Rs.6,96,409/- from the defendant against supply of construction materials vide invoices no. 124, 126, 145 and 146 (Ex.PW-1/13 to Ex.PW-1/16). This issue is decided in favour of the plaintiff and against the defendant accordingly.
9. Issue No. 2 is "Whether plaintiff is entitled to interest as claimed @ 12% per annum? OPP 9.1 Plaintiff has claimed interest @ 12% per annum. Now, it has to be considered as to whether plaintiff is entitled to interest at the said rate. In para no. 7 of the plaint, plaintiff has stated that defendant is liable to pay interest on the principal amount @ 12% per annum w.e.f. 25.04.2018 to 25.11.2019 amounting to Rs.1,32,317/-. In reply to para 7, defendant has merely stated that no amount is due and payable. Defendant has stated that issue of payment of interest does not arise as there was no outstanding amount against the defendant. Defendant has not specifically denied liability to pay interest @ 12% per annum anywhere in the written statement.
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 18 of 239.2 Ld. counsel for the defendant has argued that plaintiff has not led any evidence to prove that plaintiff is entitled to claim interest @ 12% per annum as there was no mutual agreement with regard to the payment of interest nor there is any justification in charging the same.
9.3 The version of the defendant that it had not received the goods or was not liable to pay any outstanding amount stands falsified as held in Issue No. 1. Parties' might not agree on the interest payable in case of non-payment of due amount after having received the goods but unjust enrichment by wrongful act of a party cannot be allowed and interest of restitutive justice requires payment of interest by defaulter for the delayed payment.
9.4 Section 34 CPC says that wherein and in so far as a decree is for payment of money, the court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of suit to the date of decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit with further interest at such rate not exceeding 6% per annum at Court deems reasonable on such principal sum from the date of decree to the date of payment or to such earlier date as the Court deems thinks. As per proviso to Sec 34 CPC, where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions. Explanation I. - In this sub-section, "nationalized Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 19 of 23 bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970. Explanation II - For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. 9.5 Having regard to the lending rate of the bank in the commercial transaction, this Court is of the view that at present, grant of 12% per annum pendente lite and future interest would serve the ends of restitutive justice. This court finds that plaintiff is entitled to interest @ 12% per annum w.e.f. 25.04.2018 to 25.11.2019 as claimed and plaintiff is also entitled to pendent-lite and future interest at the said rate of 12% per annum from the date of filing of present suit till the realization of the entire amount. Therefore, this issueno. 2 is decided against the defendants and in favour of plaintiff.
10. ISSUE NO. 3 is "Whether plaintiff is a partnership firm as alleged by the defendant? If so, to what effect? OPD 10.1 Case of the defendant is that the suit filed by the plaintiff is not maintainable in view of the fact that same is filed in the name of firm which is a proprietorship firm and said firm being proprietorship firm has no legal entity. It is argued that in case of proprietorship firm, suit should have been filed in the name of proprietor and not in the name of firm as firm has no legal entity and thus, the suit is liable to be dismissed. It is argued that since the suit has been filed in the name of firm, it is presumed that it is not a proprietorship firm but is a partnership firm and no suit can be filed in the name of the firm in contravention to the provisions of Section 69(2) of Partnership Act as firm cannot file without being registered with the Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 20 of 23 Registrar of Firms and the provisions of Section 69(2) of the Partnership Act are mandatory, thus, in both the eventuality the suit filed by the plaintiff must failed as either it should in the name of proprietor as the firm has no legal entities if filed in the name of firm being a proprietorship firm similarly if the suit is filed in the name of the firm then it must comply with the provisions of Section 69 of Partnership Act. It is argued by the Ld. counsel for the defendant that the suit of the plaintiff be dismissed with costs. In support of his contention, Ld. counsel for the defendant has relied upon a case, Miraj Marketing Corporation Vs. Vishaka Engineering, 2005(79) DRJ 209 (DB) and Svapn Constructions Vs. IDPL Employees Cooperative Group Housing Society Ltd. & Ors., 2005 SCC Online Del 1392.
10.2 It may be noted that in a case reported as Rasiklal Manik Chand Dhariwal Vs. M/s M.S.S. Food Products, Civil Appeal No. 16112 of 2011, arising out of SLP (Civil) No. 27180 of 2008 decided on 25.11.2011, Hon'ble Supreme Court observed in para 62 and 63 as under :-
62. The plaint filed by the plaintiff describes the title of the plaintiff as follows :-
"M/s M.S.S. Food Products, Plot No. D, Sector-E, Sanvar Road Industrial Area, Indore, Through - Proprietor - Nilesh Vadhwani, Son of Shri Ashok Vadhwani, aged 27 years, Occupation : Business"
63. The above description of the plaintiff in the plaint at best may be called to be not in proper order in as much as the name of Nilesh Vadhwani must have provided the business name in the cause title. This is not an illegality which goes to the root of the matter.
10.3 Defendant has failed to establish that plaintiff, M/s Aggarwal Traders is a partnership firm. Shri Anil Kapoor who appeared as DW-1 merely stated at the time of dealing with the Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 21 of 23 plaintiff, he was told that plaintiff is a partnership firm duly registered under Partnership Act but now while filing the suit, plaintiff claimed proprietorship firm. He has not established in any manner that plaintiff M/s Aggarwal Traders is a partnership firm and not a proprietorship concern.
10.4 PW-1, Shri Bajrang Aggarwal in his deposition categorically stated that he is proprietor of plaintiff firm, M/s Aggarwal Traders and there is nothing in the cross-examination to rebut his deposition. He was given only a suggestion that he was the partner of M/s Aggarwal Traders which had been denied categorically by PW-1. Except giving suggestion to PW-1, there is nothing in the cross-examination of PW-1 to impeach his veracity. The onus to prove this issue was on the defendant who has failed to discharge his onus.
10.5 In the result, this issue is decided against the defendant and in favour of the plaintiff.
RELIEF
11. Learned counsel submitted that plaintiff has spent time, energy and money in filing and prosecuting this suit. In the interest of restitutive justice, plaintiff shall also be entitled to costs. The present suit was filed on 26.11.2019. Eight effective hearings have taken place in this case. In the circumstances noted above, pleader's fee and litigation expenses are assessed as Rs.24,000/- and Court fee deposited by the plaintiff is Rs.10,433/-. This Court finds that plaintiff is entitled to total costs of Rs.34,433/- (inclusive of Court fees). 11.1 In the result, a decree is hereby passed in favour of plaintiff and against defendant in the principal sum of Rs.6,96,409/- alongwith interest @ 12% per annum from w.e.f.
Aggarwal Traders Vs. Movie Times Cineplex Pvt. Ltd., CS(Comm) 379/19 Page 22 of 2325.04.2018 till its realization and costs (inclusive of court fees) of Rs.34,433/-. Decree sheet be drawn up accordingly. Suit stands disposed of. File be consigned to record room.
(Dictated and announced today VINAY KUMAR Digitally signed by VINAY KUMAR
KHANNA
i.e. on 30.07.2021)
'
KHANNA Date: 2021.07.30 20:45:34 +05'30'
(VINAY KUMAR KHANNA)
District Judge
(Commercial Court-02)
South Distt., Saket, New Delhi/30.07.2021
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