Delhi District Court
M/S Euro Cosmetics vs M/S Kolors on 26 October, 2018
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE05 :NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI.
Civil Suit No.56219/16
In the matter of:
M/s Euro Cosmetics,
Through its S.P.A Holder,
Situated at 122A, Mohammadpur,
Bhikaji Cama Place,
New Delhi110066 ..................Plaintiff
Versus
M/s Kolors,
Through Mr. Sameer Khurana,
Situated at 32, North West Avenue,
Club Road,
West Punjabi Bagh,
New Delhi110026 .................Defendant
Date of institution of the case : 05.06.2015
Date of arguments : 11.10.2018
Date of judgment : 26.10.2018
JUDGMENT:
1. This is a suit for recovery of Rs.17,55,489/ filed by the plaintiff against the defendant.
2. The case of the plaintiff, in brief, is that the plaintiff firm is a sole proprietorship of Sh. Pradeep Verma. The defendantfirm through Sh. Sameer Khurana approached the plaintiff for supply of various cosmetics products and had issued CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.1 of 8 various orders to the plaintiff for supplying the same. The plaintiff duly supplied the ordered goods but the defendant made part payment for the entire outstanding amount against the invoices. It is averred that as per books of accounts maintained by the plaintiff in the regular course of business, a sum of Rs.12,49,459/ is due and payable by the defendant which the defendant has failed to pay despite service of demand notice dated 05.05.2015. The plaintiff has prayed the suit of the plaintiff be decreed.
3. Defendant has file the written statement and has contested the suit. Defendant has taken preliminary objections (i) that the suit is barred by limitation and (ii) that this court has no territorial jurisdiction to try and entertain the present suit. On merits, it is averred that defendant had always paid the price of the goods purchased from the plaintiff. The unsold goods were returned to the plaintiff as per the mutual understanding between the parties. The transactions between the parties came to an end in March, 2012. Thereafter, the defendant started dealing with the plaintiff on bill to bill basis on cash payment. It is averred that when the transaction ended in March 2012, the plaintiff did not inform the defendant about any dues. It is averred that no amount is due and payable by the defendant to the plaintiff. All other allegations have been denied. Defendant has prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed the replication and has CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.2 of 8 reiterated the facts of the plaint.
5. Vide order dated 17.11.2015 following issues were framed:
(i) Whether the suit is barred by limitation? OPD.
(ii) Whether the suit is not maintainable for want of territorial jurisdiction? OPD.
(iii) Whether the plaintiff is entitled for the recovery of Rs.17,55,489/? OPP.
(iv) Whether the plaintiff is entitled for interest on the aforesaid amount. If so, for what period and at what rate? OPP.
(v) Relief.
6. Plaintiff in support of its case has examined Sh. Mark Arun Anthony as PW1. PW1 has deposed on the line of the averments made in the plaint. He has deposed that he has been authorized through Special Power of Attorney (in short 'SPA') to file the present suit and to depose in the matter. He has proved SPA in his favour as Ex.PW1/2; copy of certificate of importer exporter code as Ex.PW1/1; legal notice (MarkC) and postal receipts as Ex.PW1/6 collectively.
7. During his crossexamination, PW1 has admitted that the statement of account and the invoices are maintained by the accounts department of the firm. He has deposed that he is not aware whether any purchase order had come from the defendant.
CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.3 of 8He has admitted that he has never seen any purchase order from the defendantfirm. As per PW1, last order placed by the defendant was in February 2013 and the statement made by him in his affidavitEx.PW1/A is based on the information that he has gathered from the accounts department. He has admitted that the tax invoices do not have any receiving of the defendantfirm. To a specific query, he has admitted that defendant has made payment of all the invoices pertaining to the period 01.04.2010 till 28.02.2013. As per PW1, these payments were made in cash. He has admitted that there are no receipts on record of cash payment made by the defendant. He has admitted that Sh. Manish Kapoor is still working with the firm. He has denied the suggestion that no amount is due from the defendant and all the accounts prior to 01.04.2010 have been settled by the defendant and/or it was decided that defendant would make bill to bill payment to the plaintiff for future transactions. He has also denied the suggestion that statement of accountMarkB is a fabricated document and for the said reason original of the same has not been proved on record.
8. Defendant in its defence has examined Sh. Sameer Khurana as DW1. DW1 deposed on the lines of the defence taken in the written statement. He has deposed that he is the proprietor of defendantfirm.
9. During his crossexamination, he has deposed that the statement of account MarkB is not in reference to the entire CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.4 of 8 transaction(s) between the parties. He has deposed that he is not sure if defendant had transaction with the plaintifffirm since February 2013. As per DW1, he has cleared all the payments and, thereafter, some transaction were done on cash basis. He has deposed that when he used to return the goods to the plaintiff, no receiving for the same were issued by the plaintiff.
10. I have heard Sh. Bharat Arora, ld. Counsel for the plaintiff and Sh. Pawan Madan, ld. Counsel for the defendant. Ld. Counsel for the plaintiff has contended that last invoice dated 19.02.2013 and the last payment made by the defendant was on 13.02.2013. According to him, the present suit filed on 05.06.2015 is within the period of limitation. Secondly, it is contended that defendant has admitted the credit notes as mentioned in the statement of accountMarkB and, as such, the MarkB stands proved. Lastly, it is contended that from the crossexamination of DW1 it is clear that the plaintiff has proved its case for recovery of amount. On the other hand, ld. Counsel for the defendant has contended that the invoices and statement of account have not been proved by the plaintiff. According to him, the printouts of the ledger were not taken in his presence and, therefore, it cannot be said the ledger has been proved in accordance with law. Lastly, it is contended that the testimony of PW1 is a heresay evidence. Ld. Counsel for defendant has contended that the suit of the plaintiff is liable to be dismissed.
CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.5 of 811. I have gone through the file. My issuewise findings are as under : Issue No.1 :
12. The onus of this issue is on the defendant. The plaintiff has failed to prove the invoices as well as the statement of account in accordance with law. During his crossexamination, PW1 has admitted that the statement of account and invoices are maintained by the accounts department of the firm. He has admitted that he is not aware since when the defendant is dealing with the plaintifffirm. PW1 has categorically admitted during his crossexamination that defendant has made payment of all the invoices pertaining to the period 01.04.2010 till 28.02.2013. DW1 has categorically deposed that all transactions came to an end in March 2012 and, thereafter, the dealings were on cash basis against bills. Nothing has been brought on record by the plaintiff that any amount was due or payable prior to three years of the filing of the present suit. Thus, the suit of the plaintiff which was filed on 05.06.2015 is barred by limitation. Hence, this issue is decided in favour of the defendant and against the plaintiff.
Issue No.2 :
13. The onus of this issue is on the defendant. DW1 has deposed that defendant conducts his business from West Punjabi Bagh as mentioned in the plaint. He has further deposed that payments to the plaintiff of the sold goods and return of the unsold CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.6 of 8 goods happened at the defendant's place of business. There is no crossexamination on this point by the plaintiff. Thus, it stands proved that this court has no territorial jurisdiction to try and entertain the present suit. Hence, this issue is decided in favour of the defendant and against the plaintiff.
Issue No.3 & 4 :
14. The onus of these issues is on the plaintiff. The reasons given while deciding issue no.1 be read as part and parcel for deciding this issue. It is the settled law that it is the plaintiff who has to prove his case and he cannot take advantage of the weaknesses of the defendant. The plaintiff has failed to prove the invoices as well as the statement of account in accordance with law. None of the copy of the invoice bears the signatures of the defendant. The defendant has categorically denied the invoices MarkA and statement of account MarkB. It is claimed by the defendant that both these documents are forged and fabricated documents. The printouts of these documents were not taken in the presence of PW1 and they also do not bear the signatures of defendant. PW1 has categorically deposed that printouts of document MarkA were taken by Sh. Manish Kapoor and the statement of account MarkB is attested by Sh. Manish Kapoor. However, Sh. Manish Kapoor did not enter the witness box though he was/is still working with the plaintifffirm. The plaintiff has miserably failed to prove its case. Hence, these issues are CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.7 of 8 decided against the plaintiff and in favour of the defendant.
Relief :
15. As I have decided all the issues in favour of the defendant and against the plaintiff, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by PRAVEEN PRAVEEN KUMAR
KUMAR Date: 2018.10.27
03:59:52 +0530
Dictated and announced in (PRAVEEN KUMAR)
open court today i.e. on 26.10.2018. Additional District Judge05, NDD,Patiala House Courts, New Delhi. (R) CS No.56219/2026 M/s Euro Cosmetics Vs. M/s Kolors Page No.8 of 8