Delhi District Court
M/S Caxten Press vs M/S Vinayak Communications on 22 March, 2013
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS no. 761/10/99
Unique Case ID No. 02401C0017711999
In the matter of:
1. M/S Caxten Press, through its proprietor
Mrs. Ranjana Bhargava, 2E, Jhanshi Road
New Delhi110055
2. Mrs. Ranjana Bhargava,
Sole Proprietor, M/S Caxten Press,
2E, Jhanshi Road, New Delhi110055 ....... Plaintiffs
Versus
M/S Vinayak Communications,
through its proprietor, Smt. Manju Chetan,
61/30, Ramjas Road, Karol Bagh,
New Delhi.
Second Address:
128/7, DCM Colony, Delhi110 007
Third Address:
402411, Deep Shikha Building,
Rajindra Place, New Delhi .....Defendant
DATE OF INSTITUTION : 23/12/1999
DATE OF RESERVING JUDGMENT : 27/02/2013
DATE OF PRONOUNCEMENT : 22/03/2013
M/S Caxten Press vs. Vinayak Communication CS761/10/99 1 OF 10
JUDGMENT :
This is suit for recovery brief of the case are as follows:
1. Plaintiff No.1, M/s Caxten Press is a proprietorship concern and Plaintiff No.2, Smt. Ranjana Bhargawa is its sole proprietor. Plaintiffs are doing business of printing.
Defendant M/S Vinayak Communications ordered the printing of folders in November, 1997 and Plaintiff accordingly printed and supplied the material from 3.12.1997 to 13.12.1997 and accordingly raised a bill for sum of Rs. 2,20,384.69/ dated 15.12.1997. Between 4.12.1997 to 10.12.1997 defendant made payment of Rs. 60,000/ to plaintiff and balance payment was to be made immediately after the complete supply of material. In respect of bill dated 15.12.1997 defendants impressed upon plaintiff to revise the same thereafter plaintiffs raised revised bill dated 12.08.1998 for a sum of rupees 1,50,650/ against the work done by them. By that time defendants had paid Rs. 92,000/ thereby leaving balance of 58,650/ which is still outstanding.
Plaintiff issued legal notice dated 26.04.1999 to defendant and till date no payment is made by defendant towards the outstanding amount. The defendants are liable to pay Rs. 58,650/ to plaintiffs towards payment of bill raised by plaintiff for the work done and is also liable to pay interest @ 18% per annum on outstanding amount w.e.f. 01.01.1998 to 30.11.1999 amounting to Rs. 20,204/ thus a total of Rs. 78584/ is payable by Defendant to Plaintiff. Hence, the plaintiff has filed the present suit praying for following relief from this court:
"Prayer :
a decree for syn of Rs. 78,854/ be passed in favour of the plaintiff and against the defendant with costs.
M/S Caxten Press vs. Vinayak Communication CS761/10/99 2 OF 10 Future pendentellite interest @18% be also awarded in favour of the plaintiffs and against the defendant from the date of the suit till realisation.
Such other or further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case be also passed in favor of the plaintiffs and against the defendant."
2. Defendant in written statement has taken the preliminary objection that plaintiff has not came to the court with clean hands. The defendants are in business of advertising and have a client 'Gold Rist' who is dealing in computers. An exhibition 'ITSIA 97' was to be held at Pragiti Maidan from 02.12.1997 to 06.12.1997 and client 'Gold Rist' had to participate in same. 'Gold Rist' engaged defendant for putting up stall in pavilion and getting the material printed for distributing the same in exhibition Defendant designed various materials and placed order with plaintiff to print and deliver same well in advance before the start of exhibition. According to defendant plaintiff agreed to supply the printed material on or before 01.12.1997. It was specifically made known to the plaintiff that this material is required only for the purpose of exhibition and therefore, it is to be supplied in advance to the client as the same was to be distributed in the exhibition to visitors and prospective buyers. According to defendant the plaintiffs miserably failed to supply the printed material in time. First delivery was made only on 03.12.1997 and most of the other material was supplied after exhibition was over. Due to late supply and defective printing the client of defendant has not made payment to them and had threatened to sue them for damages. The defendant have suffered heavy losses on account of nonsupplying of material in time by plaintiff.
M/S Caxten Press vs. Vinayak Communication CS761/10/99 3 OF 10 In reply on merits it is not denied by defendant that an agreement to supply of print material took place between Plaintiff and Defendant. However, Defendant denies that material was to be supplied between 03.12.1997 to 12.12.1997 and submits that material was to be supplied only on or before 01.12.1997. The bill dated 15.12.1997 for Rs. 2,20,284.59/ is denied by defendant and defendant submits that only bill for Rs. 1,76,806.80/ dated 15.12.1997 was raised by plaintiff and in same it was shown that advance of Rs. 68,000/ was received. Defendants has not made payment of Rs. 60,000/ only as claimed by plaintiff but in fact, has paid rupees 68,000/ and no question of making any other payment arises as plaintiff had not printed and supplied the material to them in time.
3. Defendant further denies that it had asked the plaintiff to revise the bills and that same was revised for Rs. 1,50,650/. According to Defendant it had paid Rs. 98,000/ as full and final payment and not Rs. 92,000/ only as claimed by plaintiff. There is no balance of RS. 58,650/ or any other amount which defendant is liable to pay hence the suit of plaintiff is liable to the dismissed.
4. On the basis of pleadings, following issues were framed on 17/12/2002:
(i) Whether the suit of the plaintiff is not maintainable and is liable to be rejected under Order 7 Rule 11 CPC? OPD
(ii)Whether the supplies made by the plaintiff to the defendant were in short supply and the same was defective and also supplied beyond agreed period of time? If so, its effect? OPD
(iii)Whether defendant has made full and final payment to the plaintiff ?. OPD
(iv)Whether plaintiff is entitled to the decree in the sum of Rs. 78,854/ or for any other M/S Caxten Press vs. Vinayak Communication CS761/10/99 4 OF 10 amount? OPP
(v)Whether plaintiff is entitled to any interest? If yes, then at what rate and for what period? OPP
(vi)Relief.
5. The suit is filed within limitation and within jurisdiction of present Court. My issue wise findings are in following order:
Issue No.(i):Whether the suit of the plaintiff is not maintainable and is liable to be rejected under Order 7 Rule 11 CPC? OPD The onus to prove this issue was on defendant. However no evidence produced by defendant to prove how suit is not maintainable and liable to the rejected under 07 R 11. In my view provisions of Order 7 Rule 11 are not attracted to the facts of present case. Hence this issue is decided in favour of Plaintiff and against the Defendant.
Issue No. (ii):Whether the supplies made by the plaintiff to the defendant were in short supply and the same was defective and also supplied beyond agreed period of time? If so, its effect? OPD and (iv) Whether defendant has made full and final payment to the plaintiff ?. OPD The onus to prove these issue was on defendant. Defendant has lead its evidence by way of affidavit of Smt. Manju Chetan which is exhibited as EX DW1/A . Defendants have not produced any evidence to prove that the goods supplied by plaintiff were defective or short in supply.There is no evidence of any complaints made by defendant to plaintiff. The plaintiff was stranger to any agreement between defendant and their client. Moreover nothing on record to show that client of defendants have sued them or made complaints M/S Caxten Press vs. Vinayak Communication CS761/10/99 5 OF 10 for defective or less supply. If the goods were of defective quality then defendant should not have accepted them . However defendant had made part payment to plaintiff and received the goods from time to time . Thus it is not proved that the goods supplied by plaintiff were defective or lesser in quantity.
DW1 has deposed in her affidavit that time was the essence of contract and Plaintiffs were liable to supply the material to defendants before 02.12.1997. That plaintiffs did not print the material in time and did not supply the same to defendants or their clients before the scheduled date. The Plaintiffs had printed only two types of folder and the total bills raised by the plaintiff for printing the folder was of Rs. 23,040/ and same has already been paid by defendant to plaintiff. Plaintiffs did not raise any alleged bills of Rs. 2,20,284.59/ on 15.12.1997. A total payment of Rs. 98,000/ has been made by defendants and as material was not supplied in time hence defendant is not liable to make any payment to plaintiff.
In her cross examination DW1 has stated that she does not remember when plaintiff started delivering the goods to defendant. DW1 also do not recollect if she received the goods between 3.12.1997 to 13.12.1997.DW1 has admitted that she has received the goods against the challans EX. PW1/1 to PW1/6. These Bills are dated 3/12/1997 to 5/12/1997. If time was the essence of contract between the parties and plaintiff was required to supply the goods well in advance then in that case defendant should not have taken the delivery of goods from plaintiff. Defendants by accepting the material after 3.12.1997 had accepted the performance of contract at the time when goods were supplied. Defendant had neither given any notice nor asked any compensation from plaintiff for late delivery.
M/S Caxten Press vs. Vinayak Communication CS761/10/99 6 OF 10 It is useful to mention the relevant legal provision,Sec55 of Indian Contract Act provides as follows:
Sec55. Effects of failure to perform at fixed time, in contract in which time is essential. When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such failure when time is not essential. If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than agreed upon. If , in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the nonperformance of the promise at the time M/S Caxten Press vs. Vinayak Communication CS761/10/99 7 OF 10 agreed, unless, at the time of such acceptance, he gives notices to the promisor of his intention to do so.
The situation in present case is covered by third paragraph of this section thus from the conduct of defendants it is proved that time was not the essence of contract. Thus this issue is decided against defendant and in favour of plaintiffs.
Issue No.(iii) Whether plaintiff is entitled to the decree in the sum of Rs. 78,854/ or for any other amount? OPP The onus to prove this issue was on plaintiff. Plaintiff has led its evidence by way of affidavit of PW1Sh. K. K. Bhargav Exhibited as PW1/A . Ex PW1/X is the special power of attorney executed by Plaintiff No. 2 who is wife of PW1 and proprietor of plaintiff No.1. Objection is raised by defendant that PW1 is not competent witness to depose and Plaintiff No.2 can not authorize any other person to depose in her place and should have led evidence herself. As per Ex. PW1/x , PW1 is manager of Plaintiff firm. In cross examination even though PW1 has denied the suggestion that he is manager of plaintiff and has stated that he is CEO of the plaintiff No.1 still as PW1 is deposing in his official capacity being well conversant with the business of plaintiff proprietorship concern, In my opinion PW1 is competent to depose on behalf of plaintiff.
Plaintiff has relied upon Documents Exhibit PW1/1 to Ex. PW1/9 which are various bills raised by plaintiff against the goods supplied to defendant . These bills are dated between 3/12/97 12/08/98.Bills from Ex PW1/1 to Ex. PW1/6 are admitted by DW1.Defendant has admitted to have received Ex. PW1/10 which is legal notice given by plaintiff to defendant. In this legal notice plaintiff has raised demand of RS. 1,53,384 from M/S Caxten Press vs. Vinayak Communication CS761/10/99 8 OF 10 defendant as reflected from Bill Ex. PW1/9. DW1 has admitted that Ex. PW1/12 is the reply of defendant to the legal notice of plaintiff . It is admitted that in reply defendant has not mentioned non receipt of bill for Rs. 2,20,384/ in Ex PW1/12 . Dw1 has admitted that bill Ex PW1/9 dated 12.08.1999 was received by it. It is also admitted that till 12.08.1998 it had made payment of Rs. 98000/ to plaintiff. Defendant has not written any letter to plaintiff that balance of 52,650 was not payable by them to plaintiff. DW1 has admitted to have received legal notice ex.PW1/15 but has not placed on record any reply to said legal notice. The denial by defendant is only vague denial and plaintiff has successfully proved that defendant has not made payment of balance Rs. 52,650/ to plaintiff. However no statement of account is produced by plaintiff to prove the interest @ 18% charged on outstanding amount from 1.1.98 to 30.11.99. Thus plaintiff has been able to prove its case only to the extent of balance sum of Rs. 58,650/only and is entitled to recover the same from defendant.
Plaintiff shall also be entitled to recover pendentelite and future interest from defendant. However interest @ 18% per annum is exorbitant hence simple interest @ 9% per annum only is awarded to plaintiff. Issue accordingly decided in favour of plaintiff and against the defendant.
6 . Relief :
In view of findings on issue no. (ii), (iii) & (iv), Suit of plaintiff is decreed in its favour. A money decree for some of Rs. 58,650/(Rs. Fifty Eight Thousand Six Hundred and Fifty Only ) along with simple interest @9% per annum from the date of filing of the suit till the date of realisation of decretal amount is passed in favour of plaintiffs and against defendant.
M/S Caxten Press vs. Vinayak Communication CS761/10/99 9 OF 10 Cost of suit is also awarded to plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in open court on this day 22nd March of 2013.
(Richa Parihar) CJ06/Central 22/03/2013 Certified that it contains Ten (10) pages signed by me.
(Richa Parihar) CJ06/Central 22/03/2013 M/S Caxten Press vs. Vinayak Communication CS761/10/99 10 OF 10