Delhi District Court
The Court Of Ms Neha Paliwal vs Sh. K.C Garg on 14 October, 2020
1
THE COURT OF MS NEHA PALIWAL, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSE COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
Civil Suit No. 59671/16
M/s BMA Readymix Concrete Pvt Ltd.
RU8, Ist floor, Pitampura, Delhi110034
Also at: 75/19, Akbarpur Barota,
Sonepat, Haryana ......Plaintiff
Versus
1. Sh. K.C Garg,
Proprietor/Authorized Signatory of
M/s K.C Garg Motel;
LU109, Pitampura, Delhi
2. M/s K.C Garg Motel,
NH1, Bhalgarh, Sonepat, Haryana ......Defendants
Date of Institution: 24.01.2014
Date on which judgment was reserved: 12.10.2020
Date of pronouncing judgment: 14.10.2020
SUIT FOR RECOVERY OF Rs. 2,84,898/ ALONGWITH PAST AND
PENDENTE LITE AND FUTURE INTEREST AND COST
JUDGMENT:
1. The case of the plaintiff in a nutshell is that plaintiff is a private limited company having its registered office at RU8, first floor, Pitampura, Delhi
34. It runs the business of supply of readymix concrete in the name and CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 1 of 14 2 style of M/s BMA Readymix Concrete Pvt. Ltd. Defendant no.1 is the proprietor/authorized signatory of defendant no. 2. He, on behalf of defendant no. 2 and acting as its properitor/authorized signatory, placed an order with the plaintiff for supply of readymix concrete (M20 grade quality) for 100 cubic meter @ Rs. 3400 per cubic meter to be supplied at the address of defendant no. 2 at K.C Marg Motel, NH1, Bhalgarh, Sonipat, Haryana.
2. It is further the case of the plaintiff that on instructions and as per requirement of the defendants, it supplied readymix concrete at the address of defendants on 10.06.2011 10 cubic meter material, on 11.06.2011 07 cubic meters material and on 20.06.2011 14 cubic meters material and therefore, supplied total 31 cubic meters material. It also, after discounting the rates on the request of defendant no.1, raised a bill vide invoice number 11 dated 20.06.2011 amounting to Rs. 1, 12, 220/ inclusive of labour, cartage and taxes against the above supply of 31 cubic meters material.
3. It is further the case of the plaintiff that defendant no.1 assured it to make the payment within 15 days and further requested to supply more material. On the request of defendant no. 1, it further supplied a total of 47 cubic meter material to defendants, that is, on 21.06.2011 14 cubic meter, on 22.06.2011 12 cubic meter, on 27.06.2011 14 cubic meter, on 30.06.2011 07 cubic meter material. It again on discounted rates raised bill vide invoice no. 13 dated 30.06.2011 amounting to Rs. 1,72,678/ inclusive of labour, cartage and taxes against the above supply of 47 cubic meters material.
CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 2 of 14 3
4. It is further the case of the plaintiff that it asked the defendants to release both the payments at earliest , however, the defendants instead of making the payment for the above mentioned 78 cubic meter material which total amounted to Rs. 2,84,898/, requested for some more time to make the payment. The defendants also requested to provide more supplies. However, the plaintiff stopped further supplies and requested the defendants to first clear the outstanding payment of Rs. 2,84,898/.
5. It is further the case of plaintiff that despite its repeated demands, approaches and requests, the defendants failed to make the payment of the outstanding amount. Therefore, it got issued legal notice dated 14.08.2013 sent on 17.08.2013 at the address of the defendants which was served upon the defendants on 21.08.2013.
6. The plaintiff had relied upon original invoices number 11 dated 20.06.2011, original invoice no. 13 dated 30.06.2011, copy of legal notice dated 14.08.2013, two postal receipts dated 17.08.2013, two track reports and copy of ledger statement for the year 2011 12 of defendant no. 2 maintained by the plaintiff.
7. It is the case of plaintiff that despite service of legal notice the defendants had not paid the outstanding amount to the plaintiff. They neither replied to the legal notice. Therefore, present suit had been filed by plaintiff against the defendants praying for a decree of Rs. 2,84,898/ alongwith interest @24% per annum from 30.06.2011 till the realization of the amount . It had CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 3 of 14 4 also prayed for cost to be awarded in its favour against the defendant.
8. The summons for settlement of issues was issued to both the defendants. Defendants entered appearance and filed their written statement in which defendant no. 1 on behalf of himself and on behalf of defendant no.2 in the capacity of its authorized signatory/sole proprietor specifically denied each and every allegation of the plaintiff. Preliminary objections were taken in the written statement that the present suit is not maintainable as there is no cause of action in favour of the plaintiff and against the defendants. The present suit had not been signed, verified and filed by duly authorized person. It was further the case of defendants that though they had issued a purchase order in the name of plaintiff company, however, despite the receipt of said purchase order, no material was supplied/delivered by the plaintiff at the site of defendant no. 2 as a result the defendants suffered huge losses. The invoices relied upon by the plaintiff do not pertain to the defendants. No supply of readymix concrete had been made by plaintiff to the defendants as alleged.
9. It is further the case of defendants that the legal notice issued by the plaintiff to them was false and baseless and therefore, was not complied with or replied to. Thus, the defendants had specifically denied each and every allegation of the plaintiff and had prayed that the suit filed by plaintiff be dismissed.
10.No replication was filed by the plaintiff to the written statement.
CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 4 of 14 5
11.At the stage of admissiondenial of documents, no document was admitted or denied by the parties. On the basis of pleadings of both the parties and material available on record, the following issues were framed by the Ld. Predecessor of this Court vide order dated 08.07.2014:
Issue no.1: Whether the plaintiff is entitled to decree for a sum of Rs. 2,84,898/? (OPP) Issue no. 2: Whether the plaintiff is entitled to interest over the said amount? If yes, at what rate and for what period? (OPP) Issue no. 3: Relief
12. At the stage of plaintiff's evidence, additional documents were filed by plaintiff which were taken on record subject to cost vide order dated 28.02.2015. Plaintiff in support of its case had examined only one witness as PW1. During course of plaintiff's evidence, an application under Order XI Rule 14 CPC and Order XVI Rule 1 and 3 CPC both read with Section 151 CPC for summoning of witnesses and production of documents in possession of defendants was moved by the plaintiff. Vide order dated 21.11.2016, Ld. Predecessor of this Court directed the defendants to file the following documents/information :
a) Details of Sh. Vinod Kumar, Site Manager/receiver of material, K.C Garg Motel;
(b) Gate Keeper of the site of K.C Garg Motel with the Inward and Outward Gate records for the period from 01.06.2011 to 30.06.2011;
CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 5 of 14 6
(c)Statement of account of defendant for the period 01.06.2011 to 30.06.2011 showing bills and payments of goods received for the construction of K.C Garg Motel. The defendants were directed to file such documents alongwith an affidavit.
13. In compliance of order dated 21.11.2016, affidavit was filed by defendant no.1 on behalf of both defendants wherein it was deposed by defendant no.1 that no person by the name of Vinod Kumar was ever employed as site manager by K.C.Garg Motels, and therefore, the details as directed are not available with the defendant. It was further deposed that no gate keeper was employed by defendant no. 2 K.C Garg Motels and therefore the details as directed are not available and cannot be furnished. It was further deposed that the said Motel had already been sold out and its entire records are already destroyed and thus it is not possible to provide the directed Statement of Accounts.
Plaintiff's Evidence
14. For proving its case, the plaintiff had examined Sh. Vineet Aggarwal, its Constituted attorney as PW1. PW1 had tendered his evidence by way of affidavit Ex. PW1/A and had relied upon the following documents:
a) Ex.PW1/1 (the same was deexhibited and was marked as Mark A), is the photocopy of the certified copy of the resolution in favour of PW
1.
b) Ex. PW1/2 is the original purchase order of defendant for supply of material issued in favour of plaintiff;
CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 6 of 14 7
c) Ex. PW1/3 is invoice dated 20.06.2011 for Rs. 1,12,220/
d) Ex. PW1/4 is invoice dated 30.06.2011 for Rs. 1,72,678/
e) Ex. PW1/5 is copy of legal demand notice dated 14.08.2013.
f) Ex. PW1/6 and Ex. PW1/7 are postal receipts .
g) Ex. PW1/8 and Ex. PW1/9 are tracking reports
h) Ex. PW1/10 is returned envelope
i) Ex.PW1/11 ( the same was deexhibited and was marked as Mark D) is the ledger Account of defendants maintained by the plaintiff for the period of 01.04.2011 to 31.03.2012
j) Ex.PW1/12(colly) are copy of challans and trip sheet wise report.
k) Ex.PW1/13 ( the same was deexhibited and marked as Mark E) is the copy of Sales Tax Return for quarter April 2011 to June 2011.
15. PW-1 in his affidavit had deposed verbatim on the same lines as that of the plaint. He, in his cross-examination, had denied that the entire material was to be supplied in one go. He admitted that there was no written agreement regarding payment or regarding supply of material. He further admitted that the challans Ex. PW1/12(colly) were not mentioned in the invoices Ex. PW1/3 and Ex. PW1/4. He admitted that there is no counter acknowledgment by the defendants on the invoices/bills.
16.Plaintiff's evidence was closed in the present case on 04.07.2019 and thereafter, matter was fixed for Defendant's evidence.
17.Defendants had closed their evidence affirmatively vide statement dated 27.08.2019 and had not lead any evidence in their defence. Thereafter, CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 7 of 14 8 matter was fixed for final arguments.
18.Written arguments were filed by both the parties. I have gone through the written arguments filed by the parties and have perused the material available on record.
Findings:
Issue no.1: Whether the plaintiff is entitled to decree for a sum of Rs. 2,84,898/? (OPP) Issue no. 2: Whether the plaintiff is entitled to interest over the said amount? If yes, at what rate and for what period? (OPP) Issue no.1 and Issue no. 2 are taken up together as they are interconnected and the onus to prove both of them is upon the plaintiff.
19. The onus to prove these issues was upon the plaintiff and in order to discharge the onus, the plaintiff had examined its alleged Constituted attorney as PW1. However, the board resolution Ex. PW1/1 relied upon by the plaintiff was deexhibited in examinationinchief and was marked as Mark A as the original certified copy of the board resolution was never produced before the Court.
20. In the written final arguments, it is averred by the plaintiff that the original document could not be produced at the stage of evidence as the same got misplaced with the other files and in the written arguments only, permission was sought by the plaintiff to take on record the original board resolution CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 8 of 14 9 alongwith Memorandum and Articles of Association which as per them contain the name of PW1 as its authorized signatory/Director. In the present case, since beginning , preliminary objection was taken by the defendants that the present suit filed by plaintiff is not maintainable as the alleged resolution in favour of PW1 was not valid in the eyes of law. They had raised the objection that the suit was not signed, verified and instituted by duly authorized person on behalf of plaintiff. Sh. Vineet Aggarwal was not competent or authorized to sign, verify or institute the suit on behalf of plaintiff.
21.Thus, in the present case, preliminary objections were taken by the defendants with respect to the maintainability of the present suit and the locus standi of PW1 to file, sign and verify the plaint and to depose in favor of the plaintiff. The board resolution of the plaintiff was also deexhibited in the examinationinchief. An opportunity was also given to the plaintiff to conclude the examinationinchief on the next date of hearing and even the documents filed belatedly on the next day of examinationinchief were taken on record subject to cost. Still the plaintiff, despite opportunity at the stage of evidence, had not filed the original board resolution or Memorandum of Association or Articles of Association. At the stage of final arguments, the plaintiff cannot be permitted to go back in time and file original documents. Neither the original /certified true copy of board resolution had been produced before the Court nor the Memorandum of Association or Articles of Association have ever been placed before the Court at the stage of evidence. At the stage of final arguments, plaintiff CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 9 of 14 10 cannot be permitted to rectify the lacuna in its case, that too without moving an application or without giving chance to file reply to any such application to the defendants. The stage of filing these documents is already over. In view of above discussion , it is held that plaintiff has not been able to prove that PW1 is its authorized signatory who is duly competent to lead evidence or to file or institute or verify the plaint on behalf of the plaintiff.
22.Coming back to the merits of the case, it is admitted by the defendants that they had placed the purchase order Ex. PW1/2 with the plaintiff company. However, they had denied that the plaintiff had ever supplied the goods to them as alleged by the plaintiff in the plaint.
23. It is the case of plaintiff that it had supplied the material at the site of defendant no. 2 in terms of Ex. PW1/12 (colly) which are copy of challans alongwith trip sheet wise report. As per the plaintiff, that said challans contain the signature of one Sh. Vinod Kumar who was the site Manager/Receiver at the site of defendant no.2 as the acknowledgment of delivery of goods at the site of defendant no. 2. However, defendants had categorically denied in their written statement as well as by way of affidavit which was filed by defendant no. 1 on behalf of both defendants in compliance of order of the Court dated 21.11.2016 that no person by the name Vinod Kumar was ever employed by the defendants. Thus, as the defendants on oath had denied that Sh. Vinod Kumar was ever employed by the defendants, the onus to prove that the said Sh. Vinod Kumar was the CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 10 of 14 11 employee of the defendants had again shifted upon the plaintiff. No documentary evidence or oral evidence was lead by the plaintiff to show that Sh. Vinod Kumar was the employee of the defendants and that he had received the goods on behalf of the defendants. Therefore, the plaintiff had not been able to prove even to the extent of preponderance of probabilities that said Sh.Vinod Kumar was the employee of the defendants and had received the goods of the plaintiff in the capacity of the employee of the defendants.
24.The plaintiff had also relied upon the copy of its Sales Tax Return for the period of April 2011 to June 2011. However, the said documents were also deexhibited and were marked as Mark E. The plaintiff had not made any endeavor to prove the said documents by calling any official witness from the office of Sales Tax.
25.The plaintiff had further relied upon two invoices, Ex. PW1/3 dated 20.06.2011 for Rs. 1,12,220/ and Ex. PW1/4 dated 30.06.2011 for Rs. 1,72,678/. The perusal of these documents show that they are invoices raised and issued by the plaintiff and they do not contain any counter sign/acknowledgment by the defendants.
26.It is further admitted by PW1 in the crossexamination that challans/trip sheet wise reports Ex. PW1/12(colly) do not get mention in invoices Ex.PW1/3 and Ex.PW1//4. It is further admitted by him that the counter CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 11 of 14 12 acknowledgment was never taken from the defendants on the invoices/bills. Thus, these documents, that is, Ex. PW1/3 and Ex. PW1/4 do not contain any signature or acknowledgment from the side of the defendants. They are at best self generated documents of the plaintiff having no acknowledgment from the side of defendants and therefore, cannot discharge the onus of the plaintiff to show that goods were delivered by the plaintiff to the defendants.
27.The plaintiff had further relied upon the legal notice sent by it to the defendants. The defendants had also admitted that they have received the legal notice, however, it is their case that as the goods were never supplied by the plaintiff and received by them, they had not replied to the said legal notice. Nonreply of legal notice would lead to adverse inference only when the plaintiff is first able to show the performance of contract on its part. The plaintiff, however is not able to show that it had delivered the agreed goods at the site of defendants.
28. Thus, in the present case, though it is alleged by the plaintiff that it had supplied total 78 cubic meters material to the defendants total amounting to Rs. 2,84,898/, however , the defendants had categorically denied the receipt of any material from the plaintiff. They had admitted that they had placed the purchase order and had received the legal notice, however, had denied that the material was received by them. They had further denied that the alleged person namely Sh.Vinod Kumar, whose name appear on the delivery challan was their employee and had received the goods on their CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 12 of 14 13 behalf. They had even on oath stated that the said person was not their employee. The onus had shifted on the plaintiff to show that the said person was the employee of the defendants which the plaintiff is not able to discharge. Thus, the plaintiff is not able to prove before the Court even to the extent of preponderance of probabilities that any material was ever supplied by it at the site of the defendants.
29. In the written arguments, it is argued by the plaintiff that as affidavits were filed by defendant no.1 in the capacity of authorized signatory of M/S K.C Garg Motels at the time of filing of written statement in the year 2014 and at the time of filing of affidavit in pursuance of Court order on the application Under Order XI Rule 14 CPC and Order XVI Rule 1 and 3 CPC both read with section 151 CPC in the year 2016, therefore, it is wrongly deposed by defendant no.1 that they had sold out M/s K.C Garg Motels and the statement of Account of K.C Garg Motels from the period 01.06.2011 to 30.06.2011 had been destroyed. However, defendant no. 1 on oath had stated that it had sold out the said Motel and had destroyed the records. Thus, the onus was on the plaintiff to show that defendants had deposed falsely before the Court. Moreso, the Court cannot be oblivious of the fact that the address of defendant no.1 in the memo of parties was only reproduced in the written statement and affidavit. It was for the plaintiff to prove that the defendant had deposed falsely and had not sold out the Motel. However, the plaintiff had failed to do so.
30. In view of above discussion and findings, it is held that the plaintiff is not CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 13 of 14 14 able to discharge its onus and is not able to prove that it is entitled to the recovery of prayed amount alongwith interest. Accordingly Issue no.. 1 and Issue no. 2 are decided in favour of the defendants and against the plaintiff.
Issue no. 3: Relief
31. In view of the abovesaid discussion and findings on issues no. 1 and 2, it is held that the plaintiff is not able to prove its case even to the extent of preponderance of probabilities. Hence, the suit filed by plaintiff is hereby dismissed.
32.Decree sheet be prepared accordingly.
33.No order as to cost keeping in view the facts and circumstance of the present case.
34.File be consigned to record room. Digitally signed
NEHA by NEHA
PALIWAL
PALIWAL Date: 2020.10.14
13:13:11 +0530
Announced in the open Court (Neha Paliwal)
on day of 14.10.2020. ASCJ/ JSCC/GJ
NorthWest District, Rohini, Delhi.
This judgment contains 14 pages and all pages are duly signed by me.
Digitally signed by NEHA NEHA PALIWAL
PALIWAL Date: 2020.10.14
13:13:19 +0530
(Neha Paliwal)
ASCJ/ JSCC/GJ
NorthWest District, Rohini, Delhi.
CS No: 59571/16 M/s BMA Readymix Concrete Pvt Ltd vs K.C Garg Page no. 14 of 14