Delhi District Court
M/S Cool Star Equipments vs M/S Prince Kulfi on 14 July, 2022
In the Court of SCJcumRC, (West District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Mahima Rai Singh
CS SCJ 903/2020
CNR Number: DLWT030019542020
In the matter of :
M/s Cool Star Equipments,
Prop. Smt. Sanju Mishra,
At: B15/1, Udyog Nagar,
Swarn Park Mundka, Nangloi,
New Delhi110041.
(Through her SPA Holder)
Sh. Dhruv Chander Mishra. ...........Plaintiff
Versus
M/s Prince Kulfi,
Proprietor/Authorized Person,
Sh. Naveen Goyal, 689,
Gali Kundewalan, Sita Ram Bazar,
Ajmeri Gate, Delhi110006.
(Through its Proprietor/Authority person)
Sh. Naveen Goyal. .........Defendant
Date of institution : 16.10.2020
Date of reserved for judgment : 08.07.2022
Date of judgment : 14.07.2022
SUIT FOR RECOVERY OF SUM OF Rs. 1,25,656/ CONSISTING
OF PRINCIPLE SUM AND INTEREST CHARGES ALONGWITH
FUTURE AND PENDENTELITE INTEREST AND COST OF THE
SUIT
JUDGMENT: Brief facts of the case:
1. Brief facts of the case are that the plaintiff is a sole proprietorship concern having its office at aforesaid place and Sh. Dhruv Chander Mishra CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 1 of 14 is authorized representative and Special Power of Attorney Holder of sole proprietor. He has been authorized to sign, verify, depose and institute the present suit in the court of law against the defendant and further to conduct other proceedings on behalf of the plaintiff vide SPA dated 05.10.2020, executed by sole proprietor of the plaintiff concern. He/SPA is fully conversant with the facts of the case.
2. The defendant was having business dealings with the plaintiff who deals in job works and manufacturers of all kinds of kitchen, catering, food servicing and refrigeration equipments in the name of M/s Cool Star Equipments from the address given in the title of the plaintiff i.e. B15/1, Udyog Nagar, Swarn Park, Mundka, Nangloi, New Delhi41. On 05.02.2017, the plaintiff concern did the job work regarding kulfi pati with huts and plates vide invoice no. 018 dated 05.02.2017 for Rs. 54,500/ and the defendant issued two cheques of Rs. 15000/ bearing no. 147904 dated 05.02.2017 and Rs. 10,000/ bearing no. 147903 dated 06.02.2017 drawn at Punjab National Bank, Asaf Ali Road, New Delhi02, against the aforesaid job work to the plaintiff.
3. It is submitted that the said cheques were presented but the same were dishonored on 10.02.2017. After that plaintiff made several requests, the defendant apologized and promised and also further gave another job work and requested that the whole amount would be paid just after the completion of the given job work to the plaintiff. The plaintiff completed the given job work as per the defendant's full satisfaction and issued invoice against charges of the new job work for Rs. 38,500/ vide invoice no. 019 dated 08.04.2017 and requested the defendant to clear the whole CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 2 of 14 due amount at earliest. After the aforesaid job work dated 08.04.2017, the defendant was liable to pay sum of Rs. 93,000/ to the plaintiff, but the defendant did not pay any single penny.
4. On 05.06.2018, counsel for the plaintiff sent a legal demand notice to the defendant which was served upon the defendant on 06.06.2018. Thereafter, on 10.07.2018, the defendant representative visited at the plaintiff's aforesaid work place and deposited/paid Rs. 4,500/ in cash and further promised/assured to pay the entire balance amount i.e. Rs.88,500/ at earliest and also requested to not file any recovery suit before court. But despite of this, the defendant have neither made the payment to the plaintiff nor replied to the promised/assured as referred hereinabove till date. The copy of legal notice dated 05.06.2018, postal receipts and delivery reports are annexed with the plaint as annexureD. The details of the said dues are as follows:
Bill No. Date Bill Amount Due Amount
018 05.02.2017 54,500/ 50,000/
019 08.04.2017 38,500/ 38,500/
Total 88,500/
5. The copy of the aforesaid receipt of Rs. 4,500/ dated 10.07.2018 is annexed as annexureE. The copy of the statement of account alongwith certificate u/s 65B of Indian Evidence Act are annexed as annexure F and G. When the defendant failed to make the payment of aforesaid balance principal amount of Rs. 88,500/ as promised, the plaintiff requested the defendant several times through telephonical message and by sending the messenger to the defendant's said premises to make the full and final CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 3 of 14 payment of Rs. 88,500/ alongwith agreed interest @ 18% p.a. till date as early as possible however the defendant did not comply with the request of the plaintiff. And till date the defendant has not made the said payment along with agreed interest to the plaintiff.
6. As per Interest Act, Usage & Customs prevailing in the commercial markets and under noted terms and conditions of invoice as agreement/contract, the defendant is also liable to pay interest on the aforesaid balance principal amount of Rs. 88,500/ from June 2018 i.e. date of legal demand notice dated 05.06.2018 to till date @ 18% p.a. to the plaintiff. Another legal notice dated 24.09.2020 was served upon the defendant by way of email, whatsapp on 24.09.2020 and speed post on 26.09.2020 but the defendant has failed to make the payment till date. The copy of legal notice dated 24.09.2020, speed post receipt and enet delivery report along with email, whatsapp delivery reports and certificate u/s 65B of Indian Evidence Act are annexed as annexure H, I & J.
7. The defendant is liable to pay a sum of Rs. 1,25,656/ including the interest amount of Rs. 37,156/ as interest rate @18% p.a. from June, 2018 i.e. date of first legal demand notice dated 05.06.2018 up to till date to the plaintiff. The cause of action for filing the present suit arose in favor of the plaintiff and against the defendant as detailed in the plaint. The cause of action again arose as and when the legal notice dated 05.06.2018 was served upon the defendant on 10.07.2018 when the part payment was deposited by the defendant. It again arose on 24.09.2020 when a legal notice dated 24.09.2020 was served on the defendant for the payment by email, whatsapp and speed post on 26.09.2020. The cause of action is still CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 4 of 14 continuing in nature as the defendant has failed to make the payment till today.
8. The job works regarding Kulfi Pati with huts and plates were done by the plaintiff for the defendant at Delhi and invoice raised from Delhi. As per the agreement on invoices all dispute will be settled in Delhi courts, and the payment was required to made in Delhi. The plaintiff and the defendant having its registered office in Delhi hence this Court has got the necessary and proper territorial and pecuniary jurisdiction to entertain, try and decide the present suit. The suit has been filed within the period of limitation.
9. The plaintiff has sought a relief of decree for Rs. 1,25,656/ in favor of the plaintiff and against the defendant and for pendentelite and future interest @18% p.a. in favor of the plaintiff be given along with cost of the suit against the defendant.
Written Statement of defendant.
10. In the written statement, the defendant has denied the contentions of the plaintiff on merits. It is submitted that the present suit is liable to be dismissed as the same does not disclose any cause of action because the plaintiff himself admitted that two cheques were issued by the defendant of Rs. 15000/ bearing no. 147904 dated 05.02.2017 and Rs. 10,000/ bearing no. 147903 dated 06.02.2017 were presented but the same were dishonored on dated 10.02.2017, they are merely a piece of paper because from 10.02.2017 after nearly 4 or 5 years case is filed, hence the present suit if without any cause of action, hence it is liable to the rejected under Order VII rule 11CPC and time/limitation barred.
CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 5 of 14
11. It is further submitted that the defendant has issued two cheques as money for the services and material for a party but the plaintiff did not supply the material to the defendant for the party on dated 08.02.2017 and bounced the cheques against to return the cheques to the defendant. So the said cheques misused by the plaintiff illegally because the defendant has not received the material and services from the plaintiff and hence the plaintiff misuse the said cheques and hence the present suit is liable to be dismissed with heavy cost.
12. The defendant has nothing to pay to the plaintiff so that the plaint itself shows that the amount is due from February, 2017 but as per the two bills:
Invoice No. Dated Amount
18. 05.02.2017 Rs. 54,500/
19. 08.04.2017 Rs. 38,500/
shows that the plaintiff had received the amount by two cheques of Rs. 25,000/ dated 05.02.2017 and 06.02.2017, if the defendant did not to make the payment after dated 10.02.2017 to the plaintiff then why plaintiff gave/provided the services and material to the defendant on dated 08.04.2017. It is also very surprising that in two months just two entries in the bill book of the same party were recorded. It creates doubt on the bills and bills are not signed by the defendant.
13. The present suit is liable to be dismissed being limitation time barred by Limitation Act 1963 of three years and no legal notice received by the defendant as written in the plaint. The defendant has denied all the CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 6 of 14 averments made by the plaintiff in plaint. The defendant has denied all the contentions and averments made by the plaintiff on merits. Replication
14. In replication plaintiff has denied the submissions of defendant and submitted that the present suit of the plaintiff is very much maintainable. The defendant has cooked up a false story with malafide intentions just to grab the amount of the plaintiff against said materials supplied to him. It is further submitted that the defendant is taking false and bogus plea and without iota of any documents or evidence, just to grab the amount of the plaintiff. It is submitted that the defendant did not produce any cogent evidence or documents etc in regards to his defence/plea taken in his reply. The plaintiff has denied all the contents of the written statement filed by the defendant and reiterated the contents of the plaint are true and correct. The plaintiff has specifically denied the prayer clause of the written statement and the prayer clause of the plaint is true and correct. Issues
15. On the basis of pleadings of both the parties, issues framed by order dated 21.12.2021 are as follows:
1. Whether the defendant is liable to pay Rs. 1,25,656/ to the plaintiff?OPP
2. Whether the defendant is liable to make payment of pendentelite and future interest? If yes, then at what rate and for which period?OPP
3. Whether the present suit is barred by limitation?OPD CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 7 of 14
4. Relief.
Plaintiff's Evidence
16. In evidence, plaintiff examined Sh. Dhruv Chander Mishra who is the SPA Holder of the plaintiff firm as PW1. He tendered his evidence affidavit as Ex. PW1/A and has relied upon the following documents:
a) Ex. PW1/1(colly 3 pages) is the copy of SPA.
b) Ex. PW1/2 is the copy of cheque bearing no. 147904 dated 05.02.2017 for Rs. 15,000/.
c) Ex. PW1/3 is the copy of cheque bearing no. 147903 dated 06.02.2017 for Rs. 10,000/.
d) Ex. PW1/4 is the copy of advertisement/delivery paper of the defendant.
e) Ex. PW1/5 is the copy of invoice no. 018 dated 05.02.2017.
f) Ex. PW1/6 is the copy of invoice no. 019 dated 08.04.2017.
g) Ex. PW1/7 is the copy of legal notice dated 05.06.2018.
h) Ex PW1/8 is the copy of postal receipt dated 05.06.2018.
i) Ex PW1/9 is the copy of delivery report.
j) Ex PW1/10 is the copy of receipt of Rs. 4500/ dated 10.07.2018.
k) Ex PW1/11 is the copy of account statement.
l) Ex PW1/12(colly 3 pages) is the copy of GST Registration certificate.
m) Ex PW1/13 is certificate u/s 65B of Indian Evidence Act.
n) Ex PW1/14(colly 3 pages) is the copy of legal notice dated 24.09.2020.
o) Ex PW1/15 is email delivery report of legal notice. CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 8 of 14
p) Ex PW1/16 and Ex PW1/17 is whatsapp delivery report of legal notice.
q) Ex PW1/18 is the copy of postal receipt dated 25.09.2020.
r) Ex PW1/19 is enet delivery report.
s) Ex PW1/20 is certificate u/s 65B of Indian Evidence Act. After crossexamination, plaintiff evidence was closed. Defendant's evidence
17. The defendant examined Sh. Naveen Goyal, proprietor of the defendant firm as DW1. He tendered his evidence affidavit as Ex. DW 1/A and has relied upon his evidence affidavit i.e. Ex DW1/A. After crossexamination, defendant evidence was closed. Final arguments
18. I have heard Sh. Balraj Bhardwaj, Ld. Counsel for the plaintiff and Sh. Tarique Naseem, Ld. Counsel for the defendant and also gone through the Court record.
My issue wise findings are as under: For the sake of convenience the issue no.3 is taken up first for adjudication.
Issue no. 3 : Whether the present suit is barred by limitation?OPD
19. The onus to prove the same was upon the defendant. It is the contention of the defendant that the suit has been filed beyond the period of limitation of three years as the two cheques issued by the defendant of Rs. 15,000/ bearing no. 147904 dated 05.02.2017 and Rs. 10,000/ bearing no. 147903 dated 06.02.2017 were presented and dishonored on 10.02.2017. CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 9 of 14 Also that the bills raised are not signed by the defendant and no legal notice dated 05.06.2018 was served upon him. He has denied the payment of Rs. 4500/ made to the plaintiff on 10.07.2018 and has stated that the same is not signed by the person making the payment. During the cross examination, the defendant/DW1 admitted that the above mentioned cheques were issued by him to the plaintiff and that he did not issue any notice/ debit note/ written letter regarding the non supplying of the material to the defendant for the petti on dated 08.02.2017. He has also admitted that he did not send any request letter to his bank to stop the payment in respect of the above mentioned cheques and that he did not send any legal notice or file any suit for misuse of the aforesaid cheques for non supplying of the material and services from the plaintiff. Further, defendant also admitted that he has taken a false and bogus plea of the defence hence he did not sent any legal notice nor filed any suit in this regard. Moreover, DW1 has also admitted that the address written on the legal notice dated 05.06.2018 i.e. Ex. PW1/7 was correct. No account books were produced by the defendant before the Court during his evidence. The defendant/ DW1 admitted that he did not show Rs. 4500/ payment entry on 10.07.2018 in his / defendant's account book because he did not maintain the ledger account or account books of the plaintiff. Thus, considering the nature of the suit, continuity in business transactions as per documents on record and no specific crossexamination of PW1 qua the business transactions and the invoices raised as well as the account statement showing the payment of Rs. 4500/ on 01.07.2018 was done by the defendant meaning thereby that the same stands admitted by the defendant, CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 10 of 14 it is the considered view of the Court that the present suit is within the period of limitation accordingly, the said issue is decided against the defendant and in favour of the plaintiff.
Issue No. 1 : Whether the defendant is liable to pay Rs. 1,25,656/ to the plaintiff? OPP
20. The onus to prove this issue is on the plaintiff. It is the plaintiff case that he has done work regarding kulfi petti on the instruction of defendant on 05.02.2017, vide invoice number 018 of even date of Rs. 54,500/ and that the defendant issued two cheques of Rs. 15,000/ bearing no. 147904 dated 05.02.2017 and Rs. 10,000/ bearing no. 147903 dated 06.02.2017 both drawn on Punjab National Bank. The said cheques were dishonored on 10.02.2017. After several requests of the plaintiff, the defendant promised to make the payments and further gave another job work to the plaintiff and promised that whole amount would be paid after the completion of the job work. The plaintiff has completed the second job work and that another invoice no. 019 dated 08.04.2017 for Rs. 38,500/ was issued against the defendant. As per the plaintiff a payment Rs. 4,500/ was made on 10.07.2018 on behalf of the defendant and that legal notice was duly served to the defendant on 06.06.2018. Thus, now the defendant is liable to pay Rs. 88,500/ and after calculating the agreed interest of 18% per annum is liable to pay an amount of Rs. 1,25,656/ at the time filing of the suit.
21. In support of his case, the plaintiff / PW1 has placed on record the Special Power of Attorney Ex. PW1/1, copy of cheque bearing no. 147904 dated 05.02.2017 for Rs. 15,000/ Ex. PW1/2, copy of cheque bearing no. CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 11 of 14 147903 dated 06.02.2017 for Rs. 10,000/ Ex. PW1/3, copy of advertisement/delivery paper of the defendant Ex. PW1/4, copy of invoice no. 018 dated 05.02.2017 Ex. PW1/5, copy of invoice no. 019 dated 08.04.2017 Ex. PW1/6, copy of legal notice dated 05.06.2018 and its postal receipt and its delivery report Ex. PW1/7, Ex. PW1/8 and Ex. PW1/9 respectively, copy of receipt of Rs. 4500/ dated 10.07.2018 Ex. PW1/10, copy of account statement Ex. PW1/11, copy of GST Registration certificate Ex. PW1/12, certificate u/s 65B of Indian Evidence Act Ex. PW1/13, copy of legal notice dated 24.09.2020 and its email delivery report and whatsapp delivery report Ex. PW1/14, Ex. PW1/15, Ex. PW1/16 and Ex. PW1/17 respectively and copy of postal receipt dated 25.09.2020 Ex. PW1/18, copy of enet delivery report Ex. PW1/19 and certificate u/s 65B of Indian Evidence Act Ex. PW1/20. Neither any question were put to SPA holder / PW1 qua the said documents nor any plea raised that the same were false and fabricated. The defence taken during cross examination of PW1 qua Ex. PW1/10 i.e. the copy of receipt of Rs. 4500/ dated 10.07.2018 was that no signature of the employee who gave the same were there on the said document. However, it is pertinent here to mention that during the crossexamination of the defendant he admitted that as per customs/ rules prevailing in the market, the person who received the amount generally issues the payment receipt on the letter head/ voucher after duly signing the same. Also that defendant stated that his firm used to keep the bank books regularly regarding the business transactions or income tax and sale purposes however, he did not maintain any ledger account of the plaintiff during the said business transactions. No account CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 12 of 14 books were produced by the defendant before the Court during his evidence. The defendant/ DW1 admitted that he did not show Rs. 4500/ payment entry on 10.07.2018 in his / defendant's account book because he did not maintain the ledger account or account books of the plaintiff. No specific crossexamination of PW1 qua the business transactions and the invoices raised i.e. Ex. PW1/5 and Ex. PW1/6 as well as the account statement i.e. Ex. PW1/11 showing the payment of Rs. 4500/ on 01.07.2018 was done by the defendant meaning thereby that the same stands admitted by the defendant.
22. Further, during the crossexamination of the defendant he has not denied that above mentioned cheques were issued by him to the plaintiff. However, he has stated them to be an advance payment for a job work and he also admitted that he did not issue any notice/ debit note/ written letter regarding the non supplying of the material to the defendant for the petty on dated 08.02.2017. He has also admitted that he did not send any request letter to his bank to stop the payment in respect of the above mentioned cheques and that he did not send any legal notice or file any suit for mis use of the aforesaid cheques for non supplying of the material and services from the plaintiff. He also admitted that he has taken a false and bogus plea of the defence hence he did not sent any legal notice nor filed any suit in this regard. Moreover, DW1 has also admitted that the address written on the legal notice dated 05.06.2018 i.e. Ex. PW1/7 was correct. In view of the discussions above, unrebutted documents on record and preponderance of probability it is the considered view of the Court that the plaintiff is able to prove the continuity in business transactions and that he is entitled to the CS SCJ 903/20 Cool Star Equipments v. Prince Kulfi Page No. 13 of 14 suit amount to be paid by the defendant. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Issue no. 2 : Whether the defendant is liable to make payment of pendentelite and future interest? If yes, then at what rate and for which period?OPP
23. The plaintiff has prayed for a awarding of pendentelite and future interest @ 18% p.a. In view of findings of issue no. 1 the plaintiff is held entitled to interest pendentelite and future interest however, interest @ 18% p.a. seems to be exorbitant and keeping in view of the market rate of interest prevailing during the present time, interest @ 12% p.a is allowed pendentelite and till the payment of outstanding amount to be paid to the plaintiff by the defendant. This issue is decided accordingly. Relief.
24. In view of the issue no. 1 to 3 have been decided in favour of the plaintiff, the plaintiff is entitled to the decreetal of the suit amount. Accordingly, the suit of the plaintiff is decreed for the sum of Rs. 1,25,656/ along with pendentelite and future interest @ 12% per annum from the date of filing of the suit till the realization of the decreetal amount. The plaintiff is also entitled to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court (Mahima Rai Singh)
on 14th Day of July 2022 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 14 pages.)
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