Delhi District Court
Karan vs Mukesh Yadav on 29 July, 2024
IN THE COURT OF MS NEETI SURI MISHRA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI
In the matter of :-
M/s Taj Home Craft Co. Ltd.
Through its Sole Proprietor/AR
Sh. Pankaj Kumar Kataria
At 994, Block - G,
(Basement & Ground Floor)
DSIIDC Industrial Area,
Narela, Delhi - 110040.
.....Plaintiff
VERSUS
M/s Bansal Marketing House
Thorugh its Proprietor
Sh. Akhilesh Bansal
At HCL Compound, Niranjanpur,
Saharanpur Road,
Dehradun - 248171 (U. Khand).
.....Defendant
JUDGMENT
CNR No. DLNT 0300 2305 2023 Case No. 1337/23 Under Section XXXVII CPC Date of Institution 04/12/2023 Date of reserving for orders 25/07/2024 Date of Final Order 29/07/2024 Final Order Suit decreed
1. Vide this judgment, I shall decide the summary suit under Order XXXVII CPC for recovery of Rs. 1,42,413/- CS SCJ No. 1337/23
M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 1 of 7 alongwith interest @ 18% per annum alongwith future and pendente lite interest.
2. The brief facts for disposal of the present suit are as follows :-
The Plaintiff is doing manufacturing/business of kitchenware and household items under the name and style of M/s Taj Home Craft Co. at the above mentioned address and the present suit has been filed by the Sole Proprietor Sh. Pankaj Kumar Kataria. The Defendant is also doing business of kitchenware and household items in the name and style of M/s Bansal Marketing House. The Defendant has been purchasing household items from the Plaintiff for last many years against bills/invoices and he availed credit facility. The Defendant had purchased different kitchen household items from the Plaintiff against various invoices (including IGST) on credit basis and all the items were "Door Delivered" to the Defendant. But the Defendant failed to pay the outstanding amount of Rs. 1,42,413/- to the Plaintiff. The Plaintiff requested various times through telephone and by sending personal messenger to the Defendant's office for release of the said outstanding payment, but the CS SCJ No. 1337/23 M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 2 of 7 Defendant had always postponed the payment on one pretext or the other. Thereafter, the Defendant had issued three cheques bearing No. 212408, dated 30/08/2023 for the sum of Rs. 50,000/-, cheque No. 212409, dated 15/09/2023 for the sum of Rs. 50,000/- and cheque No. 212410, dated 30/09/2023 for the sum of Rs. 42,413/- all drawn on Canara Bank. Sub Area Canteen, Dehradun, Uttrakhand - 248003 in favour of Plaintiff and assured for realization of the said cheques at their due date. When the Plaintiff presented the aforesaid cheques for encashment to his banker namely Bank of India, Sector - 8, Rohini, Delhi - 110085, all were returned dishonored/unpaid by the Defendant's banker with the remarks "Exceed Arrangement"
vide separate Returning memos dated 19/09/2023, 11/10/2023 and 24/10/2023. The Plaintiff immediately contacted and informed the Defendant about the returned/dishonored cheques and demanded his payment but the Defendant promised to handover another cheque and stated that soon he will pay the previous unpaid cheque through NEFT/RTGS, but in vain. Thereafter, Defendant started threatening the Plaintiff stating that his sister is also an Advocate and will contest any case instituted CS SCJ No. 1337/23 M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 3 of 7 against him if Plaintiff dares to recover the amount before 6-7 years.
That the Plaintiff is registered under Ministry of Micro, Small and Medium Enterprises (MSME), Government of India vide Udyam Registration Certificate No. UDYAM-DL-06- 0011578, which assures the benefits, "a buyer is expected to make a payment for the goods/services within 15 days of the purchase. If the buyer delay, the payment for more than 45 days, the enterprise is eligible to charge compound interest which is 03 times the rate notified by RBI."
Despite that, the Defendant failed to make the payment. Eventually, the present suit was filed by the Plaintiff.
3. Summons of the suit in the prescribed format given in Form 4 Appendix 'B' under Order XXXVII CPC were sent to Defendant and the same were duly served upon him on 06/01/2023 through WhatsApp. Ld. Counsel for Defendant had appeared on 23/02/2024 at 11:59 a.m. HE filed memo of appearance but failed to file any application for condonation of delay in filing appearance as per Order XXXVII Rule 3 (7) CPC. Ld. Counsel for Defendant was informed that application for CS SCJ No. 1337/23 M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 4 of 7 condonation of delay is mandated to be filed. But no application was filed on behalf of Defendant. Defendant had received summons of suit under Order XXXVII CPC on 06/01/2024, but memo of appearance was filed only on 23/02/2024 i.e. after delay of 47 days. Such application has not been filed since then till today despite lapse of three dates of hearing. No justifiable reason is forthcoming from Defendant's side for failing to move the application seeking condonation of delay in filing appearance. The Court is empowered to excuse the delay in filing the memo of appearance under Order XXXVII Rules (3) (7), but the power can be exercised only upon application moved by the party concerned.
Thus, as Defendant has not specified any sufficient cause for filing memo of appearance after delay of 47 days, despite grant of ample opportunities, the appearance cannot be said to have been filed in compliance with the mandatory provision of Order XXXVII Rule 3 (1) CPC.
4. Thus, in view of the provision of Order XXXVII rule 2 (3) CPC, it is deemed that the Defendant has admitted the case of Plaintiff and in the considered opinion of this Court, the CS SCJ No. 1337/23 M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 5 of 7 Plaintiff is entitled to decree as per law for the sum of Rs. 1,42,413/-.
5. Although, Plaintiff has claimed the interest @ 18% per month, the same seems to be exorbitant. The Hon'ble Division Bench of the Hon'ble High Court of Delhi in the case of Pt. Munshi Ram & Associates (P) Ltd. Vs. DDA, 2010 SCC Online Del 2444, has held that higher rates of interest, which are against public policy, can be struck down by the Court by finding such rates of interest to be against the public policy. Any Contract, which is against the public policy, is void under Section 23 of the Indian Contract Act, 1872. The said Judgment was also relied upon by the Hon'ble Single Bench of the Hon'ble High Court in case bearing R.F.A. No. 823 of 2004, titled as Shri Sanjay Mittal Versus Sunil Jain decided on 07/12/2018. The Hon'ble Single Bench has granted 9% p.a. interest instead of 24% per annum i.e. 2% per month. Accordingly, interest @ 9% per annum is allowed in favour of Plaintiff.
6. In view of abovesaid facts and circumstances, the suit of Plaintiff is decreed and it is held that the Plaintiff is CS SCJ No. 1337/23 M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 6 of 7 entitled to recover a sum of Rs. 1,42,413/- alongwith 6% p.a. interest from the date of institution of the suit till its realization from the Defendant. It is ordered accordingly.
7. Decree-Sheet be accordingly prepared accordingly by the Reader of the Court. Thereafter, Ahlmad is directed to consign the file to Record-Room after due compliance, as per Digitally signed rules. NEETI by NEETI SURI MISHRA SURI Date:
Announced in the open Court MISHRA
2024.07.29
17:31:03
on this 29th day of July, 2024 +0530
(NEETI SURI MISHRA)
SCJ-CUM-RC
NORTH DISTRICT,
ROHINI COURT, DELHI
It is certified that this judgment contains 07 pages NEETI Digitally signed by NEETI SURI and every page is signed by me. SURI MISHRA Date: 2024.07.29 MISHRA 17:31:16 +0530 (NEETI SURI MISHRA) SCJ-CUM-RC NORTH DISTRICT, ROHINI COURT, DELHI CS SCJ No. 1337/23 M/s Taj Home Craft Co. Vs. Bansal Marketing House Page 7 of 7