Delhi District Court
E).Shri Ojasvi Sharma vs M/S Prakash Industries Ltd on 6 December, 2022
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010030862016
CS No.517509 of 2016
In the matter of:
Shri Sumit Kumar Sharma
Proprietor of M/s Sumit Enterprises
Son of Shri Kirti Kumar Sharma
1537, Kashmere Gate,
Delhi110006.
Deceased through LRs
1A).Mrs. Kamal Sharma
W/o Shri Kirti Kumar Sharma
Mother of late Shri Sumit Kumar Sharma
House No.14, Road No.61,
Punjabi Bagh West,
New Delhi110026.
1B).Mrs. Meenakshi Sharma
W/o late Shri Sumit Kumar Sharma
House No.14, Road No.61,
Punjabi Bagh West,
New Delhi110026.
1C).Shri Tarak Sharma
Son of late Shri Sumit Kumar Sharma
CS No. 517509/16 Page No. 1/25
House No.14, Road No.61,
Punjabi Bagh West,
New Delhi110026.
1D).Ms. Twishi Sharma
Daughter of late Shri Sumit Kumar Sharma
House No.14, Road No.61,
Punjabi Bagh West,
New Delhi110026.
1E).Shri Ojasvi Sharma
Son of late Shri Sumit Kumar Sharma
House No.14, Road No.61,
Punjabi Bagh West,
New Delhi110026. .......Plaintiff.
VERSUS
M/s Prakash Industries Ltd.
near 1 OCL Depot,
NajafgarhBijwasan Road,
Bijwasan, New Delhi. ......Defendant
Date of Filing : 20.05.2011
Date of Arguments : 06.12.2022
Date of Decision : 06.12.2022
JUDGMENT
1, Vide this judgment, I shall dispose off instant suit filed by the plaintiff seeking recovery of a sum of Rs.42,16,166/ along with interest against defendant company as well as counter claim filed by the defendant against the CS No. 517509/16 Page No. 2/25 plaintiff seeking recovery of a sum of Rs.56,03,659/ along with interest.
2. It is pertinent to mention herein that initially the suit was filed before Hon'ble High Court, however, vide order dated 11.02.2016 passed by Ld. Joint Registrar [Judicial], the same was transferred to South West District, Dwarka Courts, New Delhi.
3. The facts as pleaded in the plaint are that the plaintiff is retail dealer, Govt supplier and manufacturers of automobiles spare parts and general order supplier of various items dealing under the name as M/s Sumit Enterprises having its office at the address stated in the title of the plaint.
3.1 It is further averred in the plaint that the defendant placed various purchase orders with the plaintiff for supply of various materials from time to time. The plaintiff had supplied various items/materials to the defendant at their site with the condition that the defendant will make the regular payment as agreed, failing which interest @ 24% will be charged extra on the delayed payments. The plaintiff had supplied various spare parts to the defendant based upon purchase orders from 31.12.2008 to 12.10.2009 on agreed rates as mentioned on the purchase orders.
3.2 It is also stated that the plaintiff is keeping and maintaining regular statement of account for the transactions with the defendant and as per statement of accounts in the books of the plaintiff, a debit balance of CS No. 517509/16 Page No. 3/25 Rs.32,26,374/ as on 31.12.2010 is due against defendant. The defendant is stated to be liable to supply the CST forms for each transaction as the sale/supply was against the said requisite forms and in case of non supply of the same, the defendant would further be liable for the sales tax as per rules/law and interest and penalty thereupon.
3.3 The plaintiff had written various letters, emails and detailed representation to the defendant for clearing of dues but of no avail. Thereafter, the plaintiff got served legal notice dated 21.02.2011 to the defendant calling upon to pay a sum of Rs.32,26,374/ as principal amount along with interest of Rs.9,89,792/ till 31.12.2010, total of which comes to Rs.42,16,166/ along with interest @ 24% per annum and to issue necessary CST forms. The defendant sent reply dated 23.03.2011 denying the payment/liability. Hence, the present case. The plaintiff has sought money decree of Rs.42,16,166/ along with interest @ 24% per annum with cost of the suit.
3.4 Initially the suit was filed arraying three defendants namely Prakash Industries Ltd, Ved Prakash, CMD of Prakash Industries Ltd, and Sh. G.L. Mohta, whole time director of defendant no.1 company.
In terms of order dated 20.05.2011, the said defendant nos. 2 and 3 were deleted from the array of parties and the suit continued only against Prakash Industries Ltd the sole defendant henceforth.
CS No. 517509/16 Page No. 4/254. Summons for settlement of issues were directed upon the defendant. Defendant was duly served and filed its Written Statement.
5. The defendant company in its Written Statement has stated that the plaintiff had not approached the Court with clean hands and concealed the material fact that the plaintiff had supplied inferior parts and there had been huge delays in supplying such parts causing losses and damages to the defendant. Defendant claimed that owing to aforesaid acts of the plaintiff, a sum of Rs.56,03,659/ is rather due towards them as losses and damages for which the defendant company has filed the counter claim. Defendant denied having any liability to pay to the plaintiff.
5.1 It is further stated that the parts which were supplied by the plaintiff were after considerable delays and thus the trucks owned by the defendant had remained unutilized for months and thus causing losses and damages were sustained by the defendant company. The defendant on account of such delays was forced to engage services of outside transport agencies and had to pay hiring charges for such trucks running into several lakhs of rupees. As per defendant following are the delays caused by the plaintiff in supply of parts pertaining to several orders:
S.No PO No. & Date Invoice No. & Material Total delay . Date received 1 PIL/CHAMPA/TP R 20.07.2009 & 13 Days T/2 64/11.07.2009 10.08.2009 34 Days CS No. 517509/16 Page No. 5/25 117/06.07.2009 R 95/06.08.2009 2 PIL/CHAMPA/TP R 19.08.2009 43 Days T/2 95/06.08.2009 117A/06.07.2009 5.2 In its parawise reply, the defendant has denied that the plaintiff is retail dealer, govt supplier and manufacturers of automobile spare parts and general order supplier of various items. It is stated that the plaintiff in the guise of acting as distributor has been supplying spurious parts and defendant suffered huge losses on account of using such spurious parts in their trucks, which were sold by the plaintiff to the defendant by claiming same to be genuine Ashok Leyland parts. Defendant further denied that it is liable to pay any CST form.
Receipt of the legal notice and reply thereof was admitted. The defendant denied the version of the plaintiff in toto and while denying any liability has sought dismissal of the suit. The Written Statement was verified by Sanjay Jain on behalf of the defendant company and he had also filed the affidavit along with Written Statement.
6. Replication was filed to the Written Statement. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
7. The defendant has also filed a counter claim against the claim of the plaintiff. The defendant in its counter claim has setforth its case on the lines of averments made in Written Statement. However, it is further stated that the CS No. 517509/16 Page No. 6/25 defendant is a public limited company and has its own fleet of trucks comprising of 157 trucks, including large number of trucks of Ashok Leyland make. Upon representations made by the plaintiff that they are authorised agents of the Ashok Leyland for supplies of spare parts, the defendant placed certain orders for their requirement of spare parts. The defendant placed following orders upon the plaintiff for supply of spare parts for immediate delivery of the same:
S.No. PO No. & Date Delivery date
1 PIL/CHAMP/TP Immediately
T/2117/06.07.2009
2 PIL/CHAMP/TP Immediately
T/2117A/06.07.2009
7.1 It is further stated in the counter claim that despite the fact that the
requirement for said spare parts was on immediate basis, the plaintiff failed to deliver the same as per delivery schedule and such spare were supplied only after long delays varying between 13 days to 43 days as mentioned in above table in Written Statement. Left with no other option, the defendant engaged services of M/s Aggarwal Transport Company, Jai Ambey Freight Carriers, Jeet Freight Carrier and Shri Bajrang Roadways and had paid additional sum of Rs.31,35,149/. Defendant has further stated that the plaintiff had been overcharging the defendant i.e. more than MRP with regard to the spare parts supplied by the plaintiff. It is also stated that there is a difference of Rs.24,68,510/ on the entire supplies made by the plaintiff, which difference CS No. 517509/16 Page No. 7/25 has arisen on account of over charging of price and/or non passing of discounts. The details of amounts over charged in various bills are as under:
S.No. Bill No. Bill Date Amount
overcharged
(In Rs.)
1 R241 07.02.2009 57067.5
2 R271, R278, R280, 13.03.2009, 404508.5
R281, R287, R291, 19.03.2009,
R292 & R294 21.03.2009,
27.03.2009,
30.03.2009 &
31.03.2009
3 R16 & R17 05.05.2009, 115156.25
06.05.2009 &
29.05.2009
4 R34, R36, R40 & R49 09.06.2009, 278389.75
10.06.2009,
12.06.2009 &
29.06.2009
5 R56, R57, R64, R67, 03.07.2009, 551889.5
R68, R69, R72, R79 & 11.07.2009,
R82 17.07.2009,
20.07.2009,
21.07.2009 &
28.07.2009,
6 R95, R96, R98, R105 & 08.08.2009, 385600
R106 11.08.2009 &
24.08.2009,
7 R115, R124 & R127 07.09.2009, 193738.3
16.09.2009 &
17.09.2009,
CS No. 517509/16 Page No. 8/25
8 R139, R144 & R145 01.10.2009, 482160.25
10.10.2009 &
12.10.2009,
Total 24,68,510/
7.2 The defendant in its counter claim has sought recovery of Rs.56,03,659/
along with interest.
8. Plaintiff has filed reply to the counter claim wherein he has denied contrary averments as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct. It was stated that the counter claim filed by the defendant company was an after thought as for the first time the said plea was taken in the reply to the legal notice dated 23.03.2011. Dismissal of the counter claim was sought for.
9. Counter claimant/defendant has filed rejoinder to the reply filed on behalf of defendant on the lines of his counter claim denying the averments of the plaintiff and reaffirmed and reiterated his claim as correct.
10. Vide order dated 26.08.2013, following issues were settled:
(1)Whether the plaintiff delayed in effecting supplies as per the contract? If so, consequence thereof?OPD (2)Whether the plaintiff misrepresented to be the dealer of Ashoka Leyland?OPD (3)Whether the parts supplied were fake part and not manufactured by Ashoka Layland?OPD (4)Whether the plaintiff is entitled to the recovery of Rs.42,16,166/ as CS No. 517509/16 Page No. 9/25 prayed for?OPP (5)Whether the plaintiff is entitled to interest on the amount?OPP (6)Whether the plaintiff is liable to pay damages suffered by defendant on account of delay in supply and overcharging?OPD (7)Relief.
Vide the said order a Local Commissioner was also appointed for recording of the evidence.
10.1 The matter continued before the Local Commissioner and even when the matter was transferred to District Courts again the Local Commissioner was noticed to file the report but evidence was not filed.
11. In evidence, plaintiff Sh. Sumit Kumar Sharma had filed evidence by way of affidavit Ex.PW1/A and was to be examined through Ld. Local Commissioner, however, in between plaintiff had expired and his legal heirs were substituted in his place. Evidence commenced in Court.
11.1 Thereafter, Sh. Tarak Sharma, defendant No.1(C) (son of deceased plaintiff) entered into witness box and tendered his evidence by way of affidavit Ex.PW1/A. He relied upon following documents:
(1)Power of Attorney in his favour on behalf of other legal heirs as Ex.PW1/X, (2)Purchase Order dated 31.03.2009 as Ex.P1, (3)Some Invoices Ex.PW1/1, (4)Road Courier Receipt as Ex.PW1/2, (5)Invoice dated 31.03.2009 as Ex.PW1/3, CS No. 517509/16 Page No. 10/25 (6)Courier receipt as Ex.PW1/4, (7)Purchase Order dated 29.06.2009 as Ex.P2, (8)Invoice dated 03.07.2009 as Ex.PW1/5, (9)Courier receipt as Ex.P3, (10)Invoice dated 11.07.2009 as Ex.PW1/7, (11)Road courier receipt as Ex.PW1/8, (12)Purchase order dated 24.08.2009 as Ex.P4, (13)Invoice dated 24.8.2009 as Ex.PW1/9, (14)Road courier receipt as Ex.PW1/10, (15)Invoice dated 24.08.2009 as Ex.PW1/11, (16)Road courier receipt as Ex.PW1/12, (17)Purchase order dated 18.03.2009 as Ex.P5, (18)Invoice dated 21.03.2009 as Ex.PW1/13, (19)Road Courier as Ex.P1/14, (20)Copy of statement of account as Ex.PW1/15, (21)Letter dated 31.12.2010 as Ex.PW1/16, (22)Copy of legal notice dated 21.01.2011 as Ex.PW1/17, (23)Copy of reply to notice dated 23.03.2011 as Ex.P6, He was crossexamined at length by Ld counsel for the defendant and discharged. Thereafter, PE was closed accordingly.
12. DW1 Sh. Sanjay Jain, Authorised Representative of the defendant tendered his evidence by way of affidavit Ex.DW1/A. He deposed in CS No. 517509/16 Page No. 11/25 consonance with his case as setforth in Written Statement as well as Counter Claim. He relied upon the copy of board resolution as Ex.DW1/1. He was crossexamined and discharged.
12.1 DW2 Sh. Pravesh Kumar Chaturvedi, tendered his evidence by way of affidavit Ex.DW2/A. He is employee of defendant company - General Management Transport and deposed regarding delay as well as inferior quality of spare parts supplied by the plaintiff. He was crossexamined by Ld counsel for the plaintiff and discharged.
12.2 DW3 Sh. Birendra Thakur tendered his evidence by way of affidavit Ex.DW3/A. He is also employee of defendant company - Dy. Manager in accounts departments. He deposed that Bilti Payments for the invoices from the period may 2009 to August, 2009 of Shree Bajrang Roadways, Jai Ambe Freight Carrier, Jeet Freight Carrier and Agrawal Transport Company were made and the said Bilti invoices are Ex.DW5/1 to Ex.DW5/142 and Ex.DW4/1 to Ex.DW4/122.
12.3 DW4 Sh. Harish Kumar Singh tendered his evidence by way of affidavit Ex.DW4/A. He deposed that he was working with Agrawal Transport Company and provided trucks to defendant company from May, 2009 till August, 2009 and Bilti Bills dated 20.05.2009 till 18.08.2009 were issued by Agarwal Transport Company. He relied upon Bilti invoices Ex.DW4/1 to Ex.DW4/122 as mentioned in his affidavit. He was crossexamined by Ld CS No. 517509/16 Page No. 12/25 counsel for the plaintiff and discharged.
12.4 DW5 Sh. Jaitram Kumbhkar tendered his evidence by way of affidavit Ex.DW5/A. He deposed that he is working in Shri Bajrant Roadways and they provided trucks to defendant company from May, 2009 till August, 2009 and Bilti Bills dated 20.05.2009 to 18.08.2009 in this regard are Ex.DW5/1 to Ex.DW5/141. He was also crossexamined by Ld counsel for the plaintiff and discharged.
12.5 DW6 Sh. Amar Chouhan tendered his evidence by way of affidavit Ex.DW6/A. He deposed that he was working with Jai Ambey Freight Carriers and provided trucks to defendant company from May, 2009 till August, 2009 and Bilti Bills dated 20.05.2009 till 18.08.2009 in this regard are Ex.DW6/1 to Ex.DW6/109. He was crossexamined by Ld counsel for the plaintiff and discharged.
12.6 DW7 Sh. Hardeep Singh tendered his evidence by way of affidavit Ex.DW7/A. He deposed that he is owner of Jeet Freight Carrier and provided trucks to defendant company from July, 2009 till August, 2009 and Bilti Bills dated 24.07.2009 till 18.08.2009 in this regard are Ex.DW7/1 to Ex.DW7/11. He was crossexamined by Ld counsel for the plaintiff and discharged.
12.7 Now the evidence of DW4 to DW7 was with regard to the fact that during the contemporaneous period the defendant company had hired trucks CS No. 517509/16 Page No. 13/25 from different transporters - the said hiring was sought to be linked with the fact that the plaintiff supplies of goods i.e. auto parts were not upto the mark and as such the fleet of the defendant company was lying ideal unutilized.
Defence evidence was thus concluded.
13. I have heard the arguments advanced by Sh.Rajeev Kapoor, Ld counsel for the plaintiff as well as Sh.Jaivardhan Jeph, Ld counsel for the defendant/counter claimant as well as perused the record. Written submissions were also filed.
14. My issuewise findings are as under.
15. Issue No.1 reads as under:
(1)Whether the plaintiff delayed in effecting supplies as per the contract? If so, consequence thereof?OPD 15.1 Burden to prove this issue was casted upon the defendant, particularly this issue embraced plea of the defendant that the goods were supplied belatedly and owing to said delay the defendant suffered huge losses inasmuch as trucks of the defendant company remained unused/under utilized. It was further contended that the contract terms mandated delivery of the material of the goods immediately.
If I look at the purchase order relied upon, there is a clause no.2 which mandates that delivery has to be immediate. Obviously this aspect could only CS No. 517509/16 Page No. 14/25 have been agitated had the defendant company protested in any manner or otherwise communicated with the plaintiff company asserting the said aspect or taking umbrage on the said aspect of delayed deliveries. Infact the defendant company till the exchange of the legal notices has not sent any communication or otherwise lodged any protest at the time of reciept of the goods. In normal course the goods were received - acknowledged and hence, the question of delay, if any, does not survive for adjudication.
15.2 Further, if I look at the crossexamination of PW1 Sh. Tarak Sharma who is legal heir of deceased plaintiff Sh. Sumit Kumar Sharma who died during pendency of the suit, this witness admitted that there were two firms namely Sumit Enterprises and Som Leyland Stores and both of them were operating at the same time. He further stated that Som Leyland was the authorised dealer of Leyland Parts. PW1 also admitted that the plaintiff was also engaged in the business of manufacturing of spare parts till the year 2014 and subsequently continued only in the trading. Parts were sold in the name of Sumit Enterprises for Leyland trucks. PW1 admitted that Sh. B.D. Aggarwal father of the Chairman of defendant company and his grand father were acquainted similarly his father was known to the Chairman of the defendant company. He also admitted that Som Leyland Stores also supplied parts to the defendant company.
15.3 Now in this regard it is relevant to mention that another suit was filed by the Sarv Kirti Kumar Sharma, proprietor of Som Leyland Stores for recovery CS No. 517509/16 Page No. 15/25 of Rs.7,68,305/ against the defendant in which the defendant had also filed a counter claim. The said suit was with regard to the supplies made by M/s Som Leyland Stores and the proprietor thereof was Sarv Kirti Kumar Sharma. The said suit was decreed by Sh. Anil Kumar Sisodia, Ld. Addl. Distt. Judge05, West, Tis Hazari Courts, Delhi. In the said suit as well as reflected in the judgment dated 27.05.2017, the defendant raised the plea with regard to belated supplies. The said plea was negated for the reason that there was no letter/communication of any kind on record to show that the defendant had raised the issue of delayed supplies with the plaintiff at any prior point of time before receipt of the legal notice. Same is the case herein. Admittedly there is no letter, email, correspondence or any protest lodged by the defendant with regard to the belated supply of goods.
15.4 DW1 Sanjay Jain was also crossexamined in this regard and he deposed that one Vipul Aggarwal used to give purchase orders. He also admitted that they had transactions with plaintiff firm since the year 200506 and dispute arose in the year 200809. He also stated that plaintiff Sumit Kumar Sharma was called at Chhattisgarh with regard to quality and delay issues in the spare parts. However, on this particular aspect there is nothing whatsoever on record that any letters whatsoever were sent with regard to delay in deliveries of goods. Particularly this witness was also crossexamined with regard to communications sent but no such communications are on judicial record.
15.5 Now once supplies are accepted without there being any protest, it CS No. 517509/16 Page No. 16/25 means that defendant has waived of his right with regard to delayed deliveries and therefore cannot contend that the supplies were not as per initial terms and conditions of the contract. In this regard further if I look at the reply to legal notice Ex.P6 sent by Ashwani Kumar, Adv on behalf of the plaintiff, there is also no objection with regard to goods having been supplied belatedly. The only grievance is with regard to over charging as well as the goods having not been supplied of Ashoka Leyland make.
As such, issue No.1 is decided in favour of the plaintiff and against the defendant.
16. Issues No.2 and 3 read as under:
(2)Whether the plaintiff misrepresented to be the dealer of Ashoka Leyland?OPD (3)Whether the parts supplied were fake part and not manufactured by Ashoka Layland?OPD 16.1 Both these issues are interconnected based on common evidence and hence taken up together.
16.2 Admittedly parties were known to each other. As admitted during the crossexamination of PW1 that his grand father was known to Sh. B.D. Aggarwal and the father of PW1 was also known to Sh. V.P. Aggarwal, the chairman of the defendant company.
CS No. 517509/16 Page No. 17/2516.3 It was vehemently contended that the plaintiff had represented himself to be the authorised dealer of Ashoka Leyland and accordingly the defendant had placed orders and infact Sumit Enterprises was not the dealer of Ashoka Leyland and the parts/auto parts supplied were fake/spurious.
16.4 Now again, they were dealing since the year 200509 and at no point of time this question was raised as goods were fake and spurious. In simpler words the defendant at no prior of point of time i.e. before reply to the legal notice agitated this point that the goods supplied were not genuine or in any manner they were misrepresented/deceived and made to purchase goods on the pretext that they are original goods of Ashok Leyland make.
16.5 Now in this regard exception was made to the testimony of PW1 to contend that the plaintiff had utilized the symbol of Ashoka Leyland in the invoices which made the defendant to believe that the plaintiff concern was authorised dealer of Ashoka Leyland.
16.6 Now if I look at the invoice Ex.PW1/1 there is a symbol of 'L' at the top of the invoice. PW1 has also admitted that Sumit Enterprises is not authorised dealer of Ashoka Leyland but it is a retailer of Ashoka Leyland parts.
16.7 Now to prove the aspect that the goods which were sold by the plaintiff concerned to the defendant were not the original goods - for the said purpose it was imperative that there should have been some sort of expert evidence which CS No. 517509/16 Page No. 18/25 could conclusively prove this fact on record that the goods supplied were first of all fake goods and were not Ashoka Leyland make. Infact if I look at the purchase orders on record, there is no specification as to the goods being of Ashoka Leyland OEM only. Nonetheless the fact that the goods which were supplied were fake or counterfeit or otherwise not the original parts - the onus to prove the same was upon the defendant concern.
16.8 In this regard reverting to the testimony of DW1 Sanjay Jain, he has deposed that Sumit Kumar Sharma was called to Champa, Chhattisgarh with regard to quality and delay issues. Now to substantiate this plea there is no document on record. He also deposed that he does not remember as to whether any material was ever returned on issue of quality/same being defective. He again volunteered that from the site communications were sent to take back the goods which were inferior and replace the same with Ashoka Leyland spare parts. Now he was asked as to the said communications to which he replied that there is no communication on the record.
16.9 DW1 during his crossexamination which was conducted on 13.12.2011 deposed that the genuineness of the spare parts supplied by the plaintiff were got verified by sending the same to the company M/s Ashok Leyland who confirmed that the same was not genuine. Again he deposed that they had not sent all the items supplied but only few items for checking. This witness again deposed that the report given by M/s Ashok Leyland company regarding the spare parts not being genuine, is not placed on the record.
CS No. 517509/16 Page No. 19/2516.10 The cumulative effect of his crossexamination reveals that defendant at no point of time lodged any protest with regard to the parts being fake/spurious nor had sent the same for testing/verification or otherwise sought any report from any agency with regard to the said plea that the supplies which were made were counterfeit.
16.11 Now plaintiff has made out a case that the goods supplied were as per the purchase order. The goods were received by the defendant. Now ordinarily if the goods are fake, spurious or otherwise unusable then the said aspect can be very well ascertained by the person(s) who look after the transport business of the defendant company. The defendant company is running a fleet of 150 trucks. They have their own transport department and the vehicles are also repaired in the factory premises as per the testimony of DW2 Pravesh Kumar Chaturvedi. DW2 was also crossexamined that "the work manager of our company who is a technical person used to differentiate between inferior and good quality of goods supplied. We used to maintain stock register in the store and used to make entry regarding rejected material, orally but I do not remember whether we communicated about it in writing or not".
Needless to submit that no such stock register mentioning the inferior/good quality of goods was placed on record.
16.12 DW3 Birender Thakur was working in the accounts department was also crossexamined and he also deposed that no debit note was raised to the CS No. 517509/16 Page No. 20/25 plaintiff from the accounts department. He further deposed that no entry of rejected material used to be maintained in the statement account of the plaintiff. He also admitted that prior to 2008 there was no major dispute with the plaintiff concern.
16.13 In absence of there being any cogent evidence that the goods supplied were fake, spurious, counterfeit or otherwise unusable, the stand of the defendant company is not proved. There is no report as well from Ashoka Leyland or any other independent agency with regard to the supplies being inferior/counterfeit goods.
16.14 Merely by inscribing the logo of 'L' on the bills does not mean that the goods supplied were inferior or the defendant was allured to purchase the goods owing to the said representation. At the cost of repetition parties were known to each other. There was long standing relation in a manner that there were multiple supplies of goods. The goods were received without there being any protest. There is no evidence whatsoever led by the defendant that the goods supplied were not of the original make notwithstanding the fact that such a symbol was there on the original invoice - of 'L'. The plaintiff has testified that the goods were original and coupled with the fact that they are retailer and not the authorised dealer.
On the basis of the evidence led, the defendant has not been able to discharge the burden of issue no.2 and 3 and as a consequence thereof these issues are decided in favour of the plaintiff and against the defendant.
CS No. 517509/16 Page No. 21/2517. Issues No.4, 5 and 6 read as under:
(4)Whether the plaintiff is entitled to the recovery of Rs.42,16,166/ as prayed for?OPP (5)Whether the plaintiff is entitled to interest on the amount?OPP (6)Whether the plaintiff is liable to pay damages suffered by defendant on account of delay in supply and overcharging?OPD Issues no.4, 5, and 6 are interconnected based on the same evidence, hence, are taken up together.
17.1 Supply of goods is admitted. Goods were supplied and delivered vide invoices. They were accepted without any protest. Two defences i.e. of belated supplies and as to the goods being inferior has already been discussed in the preceeding issues.
The third defence that the defendant concern was compelled to hire outside trucks owing to the fact that the fleet of trucks of the defendant concern remained unutilized due to the spurious parts/quality issues and they were compelled to hire trucks from third party/different transporter. Now I fail to understand on what basis the defendant is claiming the amount paid to the different transporters from the plaintiff. The defence that the goods supplied were spurious has already been negated. It may be that the defendant company for economical reasons chose to hire third party transporter(s) or may otherwise CS No. 517509/16 Page No. 22/25 hire transporter(s) in addition to their own fleet or it is quite possible that the defendant concern may not be having required numbers of driver/workers to man the trucks - there can be many reasons for hiring third party vehicles. They may be more environment compliant or cost effective.
The evidence of DW4 to DW7 to my mind is completely bereft of any evidentiary value. Even otherwise they are transporters who are dealing with the defendant concern and obviously would not depose against their interest.
17.2 Coming to the plea that the plaintiff concern had not given any discounts which otherwise dealers give for bulk purchase or they were over charged. First of all as mentioned above the parties were known to each other. The person who had given the purchase order Vipul Aggarwal has not deposed. The defendant at no point of time had raised the issue of discount or over charging as alleged. Supplies were made and accepted. The defendant is a company having an accounts department, the payments in normal course would only be sanctioned/paid after due verification of the supplies, rates, quality etc. 17.3 I further fail to understand that if the trucks of the defendant company were not plying due to short supply or inferior quality of spare parts by the plaintiff company then as to why there was not even a single correspondence from the side of the defendant to plaintiff in this regard. So much so that the plea has been taken on behalf of the defendant that about 100 to 125 trucks of the defendant company remained idle due to short supply/inferior quality of spare parts by the plaintiff. It means that the transport wing of the defendant CS No. 517509/16 Page No. 23/25 company was crippled. Still, despite there being such a huge problem the defendant company chose not to communicate with the plaintiff and continued to do business and so much so there was no correspondence in the entire year 2010 with regard to said fact though the business transactions had ended much earlier. It is but obvious that the defendant company is dishonest and not paying the legitimate dues of the plaintiff and taking pleas as per their own whims and convenience - belated supplies, over charging, goods being fake/spurious, the trucks could not be utilized owing to the plaintiff's fault and as such the plaintiff is liable to compensate the defendant company etc. It appears every conceivable plea/defence available has been taken by the defendant company after the receipt of the legal notice from the plaintiff concern.
18. Considering the totality of facts and circumstances, version of the plaintiff stands on a better footing than the defendant. The version of the defendant is not only on shaky foundation but at the same time there are gaping holes/loose ends in the version of the defendant. As such, the issues Nos.4 and 6 are decided in favour of the plaintiff and against the defendant.
The counter claim of the defendant is dismissed.
19. Coming on the aspect of interest. Plaintiff has sued for recovery of an outstanding amount of Rs.32,26,374/. Pre suit interest has been computed on the said sum at the rate of 24%. Now the said interest is also mentioned in the invoices.
CS No. 517509/16 Page No. 24/2519.1 Considering the fact that it is a business transaction and the interest clause is incorporated in the invoices, ends of justice would be met if 15% interest is granted on said sum of Rs.32,26,374/ from the date of supply of goods till 31.12.2010. The said sum so adjudged would be the principal sum on which pendentelite and future interest is also awarded at the rate of 12% per annum till realization.
Issue No.5 is decided accordingly in favour of the plaintiff and against the defendant.
Relief:
20. In view of the above findings, the suit is decreed in favour of the plaintiff and against the defendant as indicated above. Cost is also awarded in favour of the plaintiff. Counter claim stands dismissed.
Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in open court (Sumit Dass)
on 06.12.2022 Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
CS No. 517509/16 Page No. 25/25