Delhi District Court
Nrb Global Enterprises Llp vs Narula Paints Private Ltd on 25 November, 2023
IN THE COURT OF SH. FAHAD UDDIN,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS, DELHI.
CNR No. DLWT03-000392-2022
CS No. 240/2022
NRB Global Enterprises LLP.
Shop No. 7, H-5-A, Shivaji Park,
Punjabi Bagh,
New Delhi-110026.
Through A.R. Sh. Krishan Kumar Bindal
.....Plaintiff
Versus
1. Narula Paints Pvt. Ltd.
Through its Director Vineet Narula.
(Mobile No. 9811461427)
E-mail: [email protected]
2. Ms. Nidhi Narula, Director,
Narula Paints Pvt. Ltd.
(Mobile No. 7291986323- 9312436550)
E-mail: [email protected]
Both of the address of:-
1447-48, Loni Road, Durga Puri,
Delhi-110093. .....Defendants
Date of Filing : 16.02.2022
Date of Judgment : 25.11.2023
JUDGMENT
1. Vide this judgment/order, I shall decide the present suit filed by the plaintiff (M/s NRB Global Enterprises LLP, through its A.R. Sh. Krishan Kumar Bindal) CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 1 of 21 against the defendant (Narula Paints Pvt. Ltd., through its Director Sh. Vineet Narula and Ms. Nidhi Narula) for recovery of Rs. 1,35,000/- (Rupees One Lakh Thirty Five Thousand Only) along with interest as mentioned in the plaint. The brief facts necessary for the disposal of the present case may be described as under:-
Plaintiff's case as per the plaint:-
2. It is the case of the plaintiff that the plaintiff is a limited liability Partnership firm duly registered with the Registrar of Companies, Delhi. The defendant no. 1 through its Directors and other officers had approached the plaintiff and ordered for supply of YSS/ 250/DB2 Safe, YLS/200/DB2 Safe and YSG/250/DB1 Safe and the said goods were supplied on behalf of the plaintiff to the defendants vide invoice no. 19-20/959 dated 25.10.2019 for a sum of Rs. 50,992/- (Rupees Fifty Thousand Nine Hundred and Ninety Two only) and further YFM/420/FG2 Safe and YSEL/390/EG5 etc. were supplied by the plaintiff to the defendants vide invoice no. 19-20/975 dated 31.10.2019 for a sum of Rs. 46,092/- (Rupees Forty Six Thousand and Ninety Two only), thus, totaling to Rs. 97,084/- (Rupees Ninety Seven Thousand and Eighty Four only). The said goods were supplied by the plaintiff to the defendant in October 2019 and the said goods were duly delivered by the plaintiff and also duly received by the defendant on the date of invoice itself which was also acknowledged on behalf of the defendants by putting stamp and signature on the copy of invoice. However, the defendants failed and neglected to make the payment of even a single penny to the plaintiff towards the outsanding amount and have been lingering on the matter on one pretext or the other. For this reason, the plaintiff was constrained to issue a legal demand notice dated 12.10.2021 upon the defendant through an Advocate and the said notice was duly sent to the defendant but despite service of the said notice, the defendants failed and neglected to CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 2 of 21 comply with the said notice and pay the outstanding amount to the plaintiff. The defendants have withheld the payment unnecessarily and the transaction being commercial in nature, thus the defendants are liable to pay interest @ 18% p.a. to the plaintiff and as such the plaintiff is claiming a sum of Rs. 37,916/- (Rupees Thirty Seven Thousand Nine Hindred Sixteen only) towards the interest till the filing of the present suit. Now, the defendant is liable to pay a sum of Rs. 97,084/- being the principal amount towards the goods supplied and Rs. 37,916/- as interest as described above and as such the defendants are liable to pay a total amount of Rs. 1,35,000/- (Rupees One Lakh Thirty Five Thousand only) to the plaintiff. Hence, in the said background the present suit has been filed by the plaintiff against the defendants seeking a decree for a sum of Rs. 1,35,000/- (Rupees One Lakh and Thirty Five Thousand only) alongwith pendente lite and future interest @ 18% p.a as prayed for in the plaint. Prayed accordingly.
Defendant's case as per the Written Statement:-
3. W.S. has been filed in the present matter on behalf of the defendants wherein the defendants stated that the suit filed by the plaintiff is not maintainable as the defendants never entered into any contract or agreement with the plaintiff at any point of time. The plaintiff is guilty of suppression of material facts before this Court. The plaintiff is just a distributor of M/s ASSAABLOY India Pvt. Ltd. which had approached the defendants for conducting sale of their products. The defendants are in sale of hardware products and various companies approach the defendants for sale of their products. In the year 2015 M/s ASSAABLOY India Pvt. Ltd., through its officials had approached the defendants for sale of their products on experimental basis and gave a proposal to the defendants that they shall supply their products for display as well as for sale on trial basis on discounted rates. As the defendants are engaged in the business of sale of hardware products and are CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 3 of 21 used to such proposals and agreed to the same as per regular business practice for helping companies in sale of their products and further in case the products are not sold in the market then the return of the same and refund of the cost of the product at which they were supplied to the defendants. This fact of return of unsold products and refund were specifically assured to the defendants by the officials of M/s ASSAABLOY India Pvt. Ltd. The said company through its officials also stated that the payment of the products given to the defendants for sale shall be received by their officials through their distributors NRB Global Enterprises (Plaintiff) and Millenium Utilities Pvt. Ltd. and that the products will be delivered by their said distributors. Upon the said understanding which is common in the market as per regular practice, the defendants agreed to the proposal given by M/s ASSAABLOY India Pvt. Ltd. Thus, according to the oral understanding and agreement M/s ASSAABLOY India Pvt. Ltd., started regular supply of their products such as locks etc., to the defendants for which the defendants had paid the due amount to M/s ASSAABLOY India Pvt. Ltd. The display products were supplied by the said company at 65% discount and the regular sale products were supplied at 35% discount to the defendants. Some of the products given by the said company to the defendants were not liked or chosen by the customers and no sale took place of those products delivered by M/s ASSAABLOY India Pvt. Ltd., because of lot of competition in the market and as such the products were given to the defendants on trial basis. The defendants informed the said facts to M/s ASSAABLOY India Pvt. Ltd., but they turned a blind eye on the genuine requests of the defendants made as per the prevailing practice in the market.
4. The defendants since December 2018 have been in contact with M/s ASSAABLOY India Pvt. Ltd., and its representatives for return of their unsold display and other products but no response was received from their side till date.
CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 4 of 21The defendants are in contact with the said company and have been making requests for return back of the display material but to no avail. The defendants also wrote various emails to M/s ASSAABLOY India Pvt. Ltd., in this regard but the said company ignored the matter on one excuse or the other. The plaintiff is having hand in gloves with M/s ASSAABLOY India Pvt. Ltd., and played a fraud upon the defendants and started harassing the defendants for further payment which are not due against the defendants. Further, despite various communications with M/s ASSAABLOY India Pvt. Ltd., they have not taken back their unsold products and further have not repaid the amount of unsold products totaling to Rs. 6,47,161.55/- (Rupees Six Lakhs Forty Seven Thousand One Hundred and Sixty One and Fifty Five Paisa Only) to the defendants regarding which the defendants also issued a legal notice dated 27.04.2022 to M/s ASSAABLOY India Pvt. Ltd., which was duly received by them but till date no reply has been given to the said notice by M/s ASSAABLOY India Pvt. Ltd., to the defendants. Thus, M/s ASSAABLOY India Pvt. Ltd., is a necessary party for effective adjudication of the present suit and thus, the present suit is bad for non joinder of a necessary party.
5. The defendants denied that the defendants through its Directors had approached the plaintiff for supply of goods as alleged by them in the plaint totaling to Rs. 97,084/- or that the goods were supplied by the plaintiff to the defendants in October 2019 and were delivered by the plaintiff and received by the defendants as alleged by the plaintiff. The defendants denied that they withheld the said payment unnecessarily as alleged by the plaintiff in the plaint and the defendants denied their liability to pay the said amount of Rs. 97,084/- towards supply of goods/ principal amount alongwith interest of Rs. 37,916/- as mentioned in the plaint and the total amount of Rs. 1,35,000/- as claimed by the plaintiff in the present case. There is no cause of action in favour of the plaintiff and against the defendants to CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 5 of 21 file the present suit. There is no outstanding amount against the defendants and as such the defendants prayed for dismissal of the suit of the plaintiff on the grounds raised in their W.S. REPLICATION:-
6. Replication has also been filed in the present matter on behalf of the plaintiff wherein the plaintiff denied the case of the defendants as mentioned in the W.S. and reaffirmed and reiterated its own case as per the plaint. The plaintiff admitted that the plaintiff has been dealing and selling the goods produced by M/s ASSAABLOY India Pvt. Ltd., but the plaintiff has no concern with the dealings between the said company and the defendants. The plaintiff denied that the plaintiff being the distributor of M/s ASSAABLOY India Pvt. Ltd. had supplied the goods to the defendants as alleged in the W.S. The plainiff has no concern with the alleged dealing between the defendants and the said company. The goods were duly supplied by the plaintiff and received on behalf of the defendants by putting their stamps and signatures. Rest of the submissions made by the plaintiff in the replication are not being repeated herein for the sake of brevity. Suffice is to say that the plaintiff prayed for decree of the suit against the defendants as per the plaint.
ISSUES:
7. Out of the pleadings of the parties vide order dated 21.09.2022, the following issues were framed by the Court for adjudication in the present matter.
(i). Whether the present suit filed by the plaintiff is bad for non joinder of a necessary party i.e. M/s ASSAABLOY India Pvt. Ltd., as stated by the defendants in para no. 12 of the preliminary objections of the W.S. ? (OPD) CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 6 of 21
(ii). Whether the plaintiff is entitled to a decree for a sum of Rs. 1,35,000/-
against the defendants no. 1 & 2 as per prayer clause-A of the plaint ? ( OPP)
(iii). Whether the plaintiff is entitled to pendente lite and future interest @ 18% p.a. against defendants no. 1 & 2 as per prayer clause-B of the plaint ? (OPP)
(iv). Relief.
PLAINTIFF'S EVIDENCE:-
8. To prove its case against the defendants, the plaintiff got examined one witness i.e. PW-1 Krishan Kumar Bindal, who is the AR / Partner of the plaintiff firm. The said witness tendered his evidence by way of affidavit which is Ex. PW-1/1 on Court record. In addition in support of the case of the plaintiff, PW-1 relied upon the following documents:
i. Extract of Resolution passed in favour of PW-1 dated 20.01.2022 is Ex. PW-
1/A. ii. Invoice No. NRB/DL/19-20/959 dated 25.10.2019 is Ex. PW-1/B. Iii. Invoice No. NRB/DL/19-20/975 dated 31.10.2019 is Ex. PW-1/C. iv. Statement of account of defendants for financial year 2019-20 alongwith the Certificate U/Sec. 65-B of the India Evidence Act is Ex. PW-1/D (Colly.).
v. Legal demand notice dated 12.10.2021 is Ex. PW-1/E. The said witness PW-1 was duly cross examined by the counsel for the defendants and after conclusion of his cross examination PW-1 was discharged. No other witness has been examined on behalf of the plaintiff in support of its case and on separate statement of PW-1, PE was closed on 26.04.2023.CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 7 of 21
DEFENDANTS' EVIDENCE:-
9. To disprove the case of the plaintiff, the defendants also got examined one witness i.e. DW-1 Vineet Narula who is the Director of the defendant company and the said witness tendered his evidence by way of affidavit which is Ex. DW-1/A on Court record. No document has been relied upon by the said witness in support of the case of the defendants. DW-1 was duly cross examined by the counsel for the plaintiff and after conclusion of cross examination, DW-1 was discharged. No other witness has been examined on behalf of the defendants in the present case and on separate statement of DW-1, DE was closed on 12.07.2023.
FINAL ARGUMENTS:-
10. Thereafter final arguments were addressed in the present case by the counsel for the plaintiff as well as the counsel for the defendants wherein the counsel for the plaintiff stated that the plaintiff is entitled to a decree for a sum of Rs. 1,35,000/- alongwith interest and costs as mentioned in the plaint against the defendants on the basis of testimony of PW-1 Krishan Kr. Bindal as well as documents relied upon by him which are Ex. PW-1/A to Ex. PW-1/E on Court record. On the other hand, Ld. Counsel for the defendants stated that the plaintiff has miserably failed to prove its case against the defendants and the suit of the plaintiff is liable to be dismissed on the basis of evidence led by the defendants in the present case.
11. Submissions heard. Record perused.
12. On the basis of pleadings of the parties, evidence led by them in the present case and arguments advanced by their counsels, the issue-wise findings of this CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 8 of 21 Court are as under:-
ISSUE No. (i):-
Whether the present suit filed by the plaintiff is bad for non joinder of a necessary party i.e. M/s ASSAABLOY India Pvt. Ltd., as stated by the defendants in para no. 12 of the preliminary objections of the W.S. ? (OPD)
13. The onus to prove this issue is upon the defendants. In the W.S. filed on behalf of the defendants, the defendants have raised a preliminary objection that the plaintiff is just a distributor of M/s ASSAABLOY India Pvt. Ltd. In the year 2015 M/s ASSAABLOY India Pvt. Ltd., through its officials had approached the defendants for sale of their products on experimental basis and gave a proposal to the defendants that they shall supply their products for display and for sale on trial basis on discounted rates and further in case the products are not sold in the market, then the return of the same and refund of the cost of the product at which they were supplied to the defendants were specifically assured to the defendants by the officials of M/s ASSAABLOY India Pvt. Ltd. Accordingly, the defendants agreed to the proposal given by M/s ASSAABLOY India Pvt. Ltd., and as per oral understanding and agreement M/s ASSAABLOY India Pvt. Ltd., started a regular supply of their products to the defendants for which the defendants had paid the due amount to M/s ASSAABLOY India Pvt. Ltd. Some of the products given by M/s ASSAABLOY India Pvt. Ltd., to the defendants were not liked or chosen by the customers and no sale took place of those products and as such the defendants informed the said facts to M/s ASSAABLOY India Pvt. Ltd., but they turned a blind eye towards the said requests of the defendants. The defendants are in contact with M/s ASSAABLOY India Pvt. Ltd., since December 2018 and making request for return back of their unsold displayed material but to no avail. The plaintiff is in connivance with M/s ASSAABLOY India Pvt. Ltd. and have played a fraud upon the CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 9 of 21 defendants. Since M/s ASSAABLOY India Pvt. Ltd., have not taken back their unsold products and further not repaid the amount of the unsold products to the defendants i.e. Rs. 6,47,161.55/-, the defendants issued legal notice dated 27.04.2022 to M/s ASSAABLOY India Pvt. Ltd., which was duly received by them and in view of the said facts M/s ASSAABLOY India Pvt. Ltd., is a necessary party for the adjudication of the present suit.
14. On the other hand, in the replication the plaintiff has specifically denied that the plaintiff has no concern with the dealings between M/s ASSAABLOY India Pvt. Ltd., and the defendants and denied that M/s ASSAABLOY India Pvt. Ltd., is a necessary party for adjudication of the present suit. The goods were supplied by the plaintiff and were received on behalf of the defendants by putting stamp and signatures. The plaintiff denied that it being the distributor of M/s ASSAABLOY India Pvt. Ltd., supplied the goods to the defendants as alleged.
15. It may be noted that no evidence/ document has been placed on record on behalf of the defendants to show that M/s ASSAABLOY India Pvt. Ltd., is a necessary party for adjudication of the present suit. As per the statements of the plaintiff made in his cross examination, PW-1 Krishan Kr. Bindal has specifically said that he had sold the concerned goods as per the invoices raised by him to the defendants in his own right and denied the suggestion that the plaintiff acted as a supplier of M/s ASSAABLOY India Pvt. Ltd., with regard to the defendant and specifically stated that he did not know about the dealings between the defendants and M/s ASSAABLOY India Pvt. Ltd., and thus cannot comment upon the transaction between the defendants and M/s ASSAABLOY India Pvt. Ltd. In his cross examination the DW-1 (Vineet Narula, Director of M/s Narula Paints Pvt. Ltd. ) has specifically stated that the defendant comapny had received the material CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 10 of 21 from the plaintiff vide invoice Ex. PW-1/B and Ex. PW-1/C against due acknowledgment and perusal of the said invoices show that the material / goods were directly supplied by the plaintiff to the defendants against due acknowledgement and no documentary evidence has been placed on record by the defendants to show that the goods/ material were supplied by the plaintiff as a distributor of M/s ASSAABLOY India Pvt. Ltd., to the defendants and hence, the plea of the defendants that M/s ASSAABLOY India Pvt. Ltd., is a necessary party for adjudication of the present suit seems to be untenable , unreasonable and a bald plea without any sufficient basis in the facts and circumstances of the present case and due to these reasons the said issue is decided against the defendants and in favour of the plaintiff.
ISSUE No.:-
(ii). Whether the plaintiff is entitled to a decree for a sum of Rs. 1,35,000/-
against the defendants no. 1 & 2 as per prayer clause-A of the plaint ?( OPP)
16. The onus to prove this issue is on the plaintiff. To prove its case against the defendants, the plaintiff got examined one witness i.e. Sh. Krishan Kr. Bindal who is the AR/Partner in the plaintiff firm. PW-1 tendered his evidence by way of affidavit which is Ex. PW-1/1 on Court record. In his evidence by way of affidavit PW-1/1, the said witness stated that the defendant company through its Directors and other officers had approached the plaintiff for supply of goods / material and the said goods were duly supplied on behalf of the plaintiff to the defendants vide invoice No. 19-20/959 dated 25.10.2019 for a sum of Rs. 50,992/- and vide invoice no. 19- 20/975 dated 31.10.2019 for a sum of Rs. 46,092/-, thus totaling to Rs. 97,084/-. The invoices were duly received and acknowledged on behalf of the defendants. These goods were delivered by the plaintiff to the defendants and the said CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 11 of 21 transactions has no concern with and cannot be adjusted with any other transaction between the defendants and M/s ASSAABLOY India Pvt. Ltd. The goods were supplied by the plaintiff to the defendants in the month of October 2019 and the said goods were duly delivered by the plaintiff and also received by the defendants against aknowledgment by putting stamp and signatures on the copy of invoice. The defendants have failed and neglected to make the payment of even a single penny to the plaintiff towards the outstanding amount and have been lingering on the matter on one pretext or the other and thus, the defendants are liable to pay the total amount of Rs. 97,084/- alongwith interest amount i.e. Rs. 37,916/-, thus totaling to Rs. 1,35,000/- as prayed for by the plaintiff in the plaint.
17. To prove its case against the defendants, PW-1 has also relied upon the documentary evidence which is Ex. PW-1/A to Ex. PW-1/E on court record. Original Extract of Resolution passed in favour of PW-1 (Sh. Krishan Kumar Bindal) for appearance and to depose in the present case on behalf of the plaintiff company is Ex. PW-1/A. Invoice dated 25.10.2019 for a sum of Rs. 50,992/- issued by the plaintiff against the defendants company is Ex. PW-1/B and invoice dated 31.10.2019 for a sum of Rs. 46,092/- issued by the plaintiff company against the defendant company is Ex. PW-1/C. On both the invoices the seal and sign of the defendant company regarding acceptance of the goods can be seen. Statement of account being maintained by the plaintiff against the defendant company for supply of goods showing an outstanding balance of Rs. 97,084/- alongwith Certificate U/sec. 65-B of the India Evidence Act is Ex. PW-1/D (Colly.). Legal demand notice dated 12.10.2021 issued on behalf of the plaintiff to the defendants thereby demanding a sum of Rs. 97,084/- alongwith interest and other cost is Ex. PW-1/E.
18. In his cross examination PW-1 Krishan Kr. Bindal stated that it is correct that CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 12 of 21 he is the distributor of M/s ASSAABLOY India Pvt. Ltd. , and stated that the said company assist them in supply of orders at the required destinations and in providing technical assistance as per the requirement. The said company does not direct them to supply particular quantity of goods to a particular person, however, the company guide them to a particular customer for availing the orders from him. PW-1 has stated as correct that their representative visits the markets/ proposed client to avail orders from them on the basis of catalogues showing their products and goods. No specific offer regarding discount is made to the proposed buyers, however, general offers regarding discount on particular products are given to the proposed buyers as per their policy. PW-1 denied the suggestion that as per the custom and usage of the business, they undertake to return the goods if not sold from the prospective buyers. He stated that he cannot comment if M/s ASSAABLOY India Pvt. Ltd., had contacted the defendant regading sale of their products through the defendants or promised regarding return of same in case they are not sold out. He stated that he was not a distributor of the said company in the year 2015 and does not have any document to show that he was not a distributor of the said company in the year 2015. He stated that he did not have any particular document to show the distributorship of M/s ASSAABLOY India Pvt. Ltd. , from the year 2017. He stated that they received invoices from the year 2017 which shows that they are the distributors of M/s ASSAABLOY India Pvt. Ltd., from the year 2017. He specifically stated that he did not know about the dealings between the defendants and M/s ASSAABLOY India Pvt. Ltd., and as such cannot comment upon the transactions entered into between them. He stated that he has no connection with the unsold goods worth Rs. 6,47,161.55/- lying with the defendants which are to be returned to M/s ASSAABLOY India Pvt. Ltd., as per the case of the defendants. He specifically stated that he had sold the concerned goods as per the invoices raised by them to the defendants in their own right and he denied the suggestion that they CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 13 of 21 had deliberately not made M/s ASSAABLOY India Pvt. Ltd. , as a party in the present case and acted only as a supplier of M/s ASSAABLOY India Pvt. Ltd., with regard to the defendants. PW-1 denied the suggestion that he is misusing the concerned invoices against the defendants or that he did not have any privity of contract with the defendants. He stated that he did not have any knowledge about the legal notice issued by the defendants to M/s ASSAABLOY India Pvt. Ltd. , for return of unsold goods worth Rs. 6,47,161.55/- lying with the defendants which are to be returned to M/s ASSAABLOY India Pvt. Ltd. No other material fact has been deposed to by PW-1 in the present case.
19. To disprove the case of the plaintiff, the defendants also got examined one witness i.e. DW-1 namely Sh. Vinit Narula, Director of the defendant company, who tendered his evidence by way of affidavit which is Ex. DW-1/A on Court record. In his evidence by way of affidavit DW-1/A, DW-1 stated that the plaintiff is just a distributor of M/s ASSAABLOY India Pvt. Ltd. , and had approached the defendants for conducting sale of their products. The defendants are engaged in sale of hardware products and various companies approach the defendants for sale of their products. In the year 2015 M/s ASSAABLOY India Pvt. Ltd. , through its officals/ representatives had approached the defendants for sale of their products on experimental basis and gave a proposal to the defendants that they shall supply their products for display and for sale on trial basis on discounted rates. The fact of return of unsold products and refund were specifically assured to the defendants by the officials of M/s ASSAABLOY India Pvt. Ltd., and the officials of the said company also stated that the payment of the products given to the defendants for sale shall be received by their officials through their distributors i.e. the plaintiff and Millenium Utilities Pvt. Ltd., and the products will be delivered by their distributors i.e. the plaintiff and Millenium Utilities Pvt. Ltd. According to the said oral CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 14 of 21 understanding and agreement M/s ASSAABLOY India Pvt. Ltd., started regularly supplying their products to the defendnats for which the defendants had paid the due amount to M/s ASSAABLOY India Pvt. Ltd. Some of the products given by the said company to the defendants were not liked or chosen by the customers and hence no sale had taken place of those productss delivered by M/s ASSAABLOY India Pvt. Ltd. The defendants accordingly informed the said fact to M/s ASSAABLOY India Pvt. Ltd., but they turned a blind eye towards the said requests of the defendants. Since December 2018 the defendants are in contact with M/s ASSAABLOY India Pvt. Ltd., and its representatives for return of their unsold products but no response was received from their side. The defendants also wrote various emails to the said company but to no avail. The plaintiff are hand in gloves with M/s ASSAABLOY India Pvt. Ltd. and have played fraud upon the defendants. Thus, despite various communications with M/s ASSAABLOY India Pvt. Ltd., they have not taken back their unsold products and have not repaid the amount of these unsold products totaling to Rs. 6,47,161.55/- and for this reason, the defendants were forced to issue a legal notice dated 27.04.2022 to M/s ASSAABLOY India Pvt. Ltd. , which was duly received by them but till date no reply has been received from them. Thus, the defendants are not liable to pay Rs. 1,35,000/- or any other amount to the plaintiff.
20. It may be noted that to prove these facts no documentary evidence has been filed on behalf of the defendants in the present case.
21. In his cross examination DW-1 Vineet Narula stated that when he received the material from the plaintiff, then he came to know that the plaintiff is the distributor of M/s ASSAABLOY India Pvt. Ltd. The sales representative namely Sh. Shadab and Manager Sh. Yogesh of M/s ASSAABLOY India Pvt. Ltd., had CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 15 of 21 approached the defendants in the year 2015 but he did not remember the exact date when it had happened. DW-1 stated that no written document regarding supply of products by the said company was executed since the business dealings are done on mutual understanding on oral basis. He stated that he cannot say without seeing the record as to what quantity and for what amount during the year 2015 to 2018, the material was supplied by M/s ASSAABLOY India Pvt. Ltd. , to the defendants. The figures were in lakhs but he cannot tell the exact figure. All his account with the said company are settled and he has some surplus material supplied by the said company which is to be returned to the said company. DW-1 stated that the concerned material was supplied to the defendant company by M/s ASSAABLOY India Pvt. Ltd. , through invoices. The said material was supplied by M/s ASSAABLOY India Pvt. Ltd. to the defendant company between the year 2015-2018 and since the year 2018 he is requesting the said company for return of the surplus material. He stated that he had offered several times to the said company for return of the surplus material. He stated as correct that he had never personally taken the goods with him for returning the same to M/s ASSAABLOY India Pvt. Ltd., and no return invoice was issued by them against M/s ASSAABLOY India Pvt. Ltd. , for return of the surplus material and the said material has been shown as a bad stock in the ledger account. DW-1 further admitted as correct that the defendant company had recieved the material from the plaintiff vide invoices Ex. PW-1/B and Ex. PW-1/C against due acknowledgment and that the address of the defendant as mentioned in the legal notice Ex. PW-1/E is the correct address. He stated that he is not aware as to when the said legal notice was received by the defendants and he cannot tell the exact date as to when the said legal notice was received by the defendants. He stated that he had placed last order with M/s ASSAABLOY India Pvt. Ltd. , in the year 2019 and the said company had promised him that they shall accept the return CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 16 of 21 of the surplus material from the defendants. He denied the suggestion that the invoices issued by the plaintiff Ex. PW-1/B and Ex. PW-1/C have no connection with the dealings with M/s ASSAABLOY India Pvt. Ltd. , and the defendants.
22. In his further cross examination DW-1 further stated that he did not have any documentary evidence to show that the order for supply of material was placed with M/s ASSAABLOY India Pvt. Ltd. , as stated by him. He had requested the representative of M/s ASSAABLOY India Pvt. Ltd. , namely Sh. Shadab for return of surplus material available with the defendants in the year 2018 and he did not have any documentary evidence to show that he had offered return of surplus material to M/s ASSAABLOY India Pvt. Ltd. , as the business dealings are done on mutual understanding on oral basis. He stated that he had also approached the plaintiff after issuance of legal notice for return of surplus material telephonically and he is not aware about the name of the person whom he had talked. He again denied the suggestion that the material which was supplied by the plaintiff through invoice Ex. PW-1/B and Ex. PW-1/C has no connection with M/s ASSAABLOY India Pvt. Ltd. , and stated that the order was placed on the said company. He denied the suggestion that he is liable to pay the suit amount to the plaintiff alongwith interest and costs. No other material fact has been deposed to by DW-1 in the present case.
23. After going through the testimony of PW-1 , documents relied upon by him as well as DW-1, this Court is of the view that the plaintiff has been able to prove its case against the defendants on the basis of preponderance of probabilities. The testimony of PW-1 Krishan Kr. Bindal as well as the documents relied upon by him collectively prove and corroborate the case of the plaintff before this court and the invoices filed on behalf of the plaintiff on record dated 25.10.2019 and 31.10.2019 CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 17 of 21 clearly show that the goods/ material were supplied by plaintiff to the defendants company directly against due acknowledgment and in the facts and circumstances of the case it cannot be presumed that the plaintiff supplied the said goods to the defendants on behalf of M/s ASSAABLOY India Pvt. Ltd., as alleged by the defendants. The plaintiff was maintaining ledger account qua the defendants during the course of business and the said ledger account placed on record alongwith Certificate U/Sec. 65-B of the India Evidence Act (Ex. PW-1/D-Colly.) shows an outstanding amount of Rs. 97,084/- against the defendants and despite issuance of legal notice dated 12.10.2021 whihc is Ex. PW-1/E on Court record, the defendants failed to pay the outstanding amount of R. 97,084/- alongwith interest @ 18% p.a. to the plaintiff. In his cross examination DW-1 Vineet Narula has stated that he had approached the plaintiff after issuance of legal notice for return of the surplus material telephonically and accordingly, the said witness has impliedly admitted the receiving of the said notice on behalf of the plaintiff but still the defendants did not bother to reply to the said legal notice then and there and raised their objections accordingly.
24. Reference may also be made to the case of "Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit Kalra & Anr." (RFA No. 467/2001 decided on 07.05.2002) wherein the Hon'ble High Court of Delhi pleased to observe that:
"There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex.PW-1/3. No reply to the same was given by the respondent. But in spite of the same no adverse inference was drawn against the respondent. This Court in the case of Kalu Ram v. Sita Ram, 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite over the notice and did not send any reply."
25. Thus in the facts and circumstances of the present case, an advere inference CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 18 of 21 is required to be drawn against the defendants. It has been the defence of the defendants that despite oral understanding between the defendants and M/s ASSAABLOY India Pvt. Ltd. , they had not taken back their unsold products and further not paid the amount of these unsold products totaling to Rs. 6,47,161.55/- and for this reason, the defendants issued legal notice dated 27.04.2022 to M/s ASSAABLOY India Pvt. Ltd. Which was duly received by them but no reply of the said legal notice was received by the defendants. No documentary evidence, no statement of account/ ledger account and even the copy of the said legal notice dated 27.04.2022 issued on behalf of the defendants to M/s ASSAABLOY India Pvt. Ltd. , has been filed on record to prove these facts before the Court. In his cross examination DW-1 has admitted that no return inovice had been issued by them against M/s ASSAABLOY India Pvt. Ltd., for return of the surplus material and the said material has been shown as a bad stock in the ledger account. As stated above even the said ledger account has not been filed on behalf of the defendant company on record. DW-1 further admitted as correct that the defendant company had received the material from the plaintiff vide invoices Ex. PW-1/B and Ex. PW-1/C against due acknowledgment and that the address of the defendants mentioned in the legal notice Ex. PW-1/E is the correct address. Further, DW-1 stated that he does not have any documentary evidence to show that the order for supply of material was placed with M/s ASSAABLOY India Pvt. Ltd. , as stated by him. He stated that he did not have any documentary evidence to show that he had offered return of surplus material to M/s ASSAABLOY India Pvt. Ltd., as the business dealings are done on mutual understanding on oral basis. Thus, in the said facts and circumstances, it cannot be assumed by this Court that the plaintiff was dealing with the defendants as a distributor of M/s ASSAABLOY India Pvt. Ltd. , and supplied the goods on behalf of the said company. The invoices filed on behalf of the plaintiff clearly shows that it was a direct transaction between the CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 19 of 21 plaintiff and the defendant company and the defendant company had recieved the material/ goods supplied by the plaintiff against due acknowledgment and despite issuance of legal notice dated 12.10.2021, the defendant company failed to pay the outstanding amount of Rs. 97,084/- alongwith interest @ 18% p.a. to the plaintiff as demanded by the plaintiff vide the said legal notice. Further, since the defendants have failed to prove their case before the Court even on the basis of preponderance of probabilities, the defendants cannot be allowed to make any adjustments or withheld the amount of the plaintiff on the pretext that the tranasaction was done on behalf of M/s ASSAABLOY India Pvt. Ltd., and the said company had promised to return the surplus material to the defendants. The case of the plaintiff that the plaintiff has no concern with the said transaction between the defendants and M/s ASSAABLOY India Pvt. Ltd., seems to be real and probable and stands proved on the basis of prepondrance of probabilities and also supported by documentary evidence i.e. Ex.PW-1/B to Ex. PW-1/E. Thus, issue nos. 2 is decided in favour of the plaintiff and against the defendant company and the plaintiff is held entitled to recover a sum of Rs. 1,35,000/- (Rupees One Lakh Thirty Five Thousand Only) from the defendant company.
(iii). Whether the plaintiff is entitled to pendente lite and future interest @ 18% p.a. against defendants no. 1 & 2 as per prayer clause-B of the plaint ? (OPP)
26. It may be noted that there was no specific contract for charging of interest at the said rate between the parties in the present case or in the concerned invoices, hence, awarding of pendente lite and future interest @ 18% p.a. against the defendants seems to be excessive and unreasonable in the facts and circumstances of the present case and awarding of interest at the said rate is CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 20 of 21 accordingly declined to the plaintiff.
Relief:-
27. Consequently, due to the reasons mentioned above, this Court deems fit to decree the suit of the plaintiff against the defendant company as prayed for in the plaint and the plaintiff is held entitled to recover a sum of Rs. 1,35,000/- (Rupees One Lakh Thirty Five Thousand only) from the defendant company as prayed for in the plaint and it is made clear that the Directors of the said company namely Sh. Vineet Narula and Ms. Nidhi Narula shall not be personally liable to pay the said amount to the plaintiff. Further, plaintiff is held entitled to recover pendente lite interest over and above the said amount of Rs. 1,35,000/- @ 9% p.a. from the date of filing of the suit till date of decree and future interest @ 6% p.a. from the date of decree till realization of amount from the defendant company.
28. In the interest of justice, the plaintiff is also held entitled to recover the costs of the suit from the defendant company as per rules. Ordered accordingly.
29. Let decree sheet be prepared in favour of the plaintiff and against the defendant company in the aforesaid terms.
30. No further action is required.
31. File be consigned to Record Room after due compliance.
Digitally
signed by
Announced in open Court FAHAD
FAHAD
UDDIN
on 25th November, 2023. UDDIN Date:
2023.12.14
(This judgment contains 21 pages) 16:07:22
+0530
(FAHAD UDDIN)
Commercial Civil Judge,
West District, Delhi.
CS No. 240/2022 NRB Global Enterprises LLP Vs. Narula Paints Pvt. Ltd. &. Anr. Page 21 of 21