Delhi District Court
Mr. Agosh Jain vs Mr. Robin Singh on 30 September, 2013
IN THE COURT OF Ms. POOJA GUPTA: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Suit no.65/10
Unique ID no. 02406C0476742010
IN THE MATTER OF:
Mr. Agosh Jain,
Sole Proprietor of
M/s Surya Distributors,
B2/6, Rana Pratap Bagh, Delhi110007. ......Plaintiff
Versus
Mr. Robin Singh,
S/o.: Sardar Balbir Singh,
Sole Proprietor of
M/s Suvidha Enterprises,
13/71, Petrol Pump Road,
Near Pushpa Bhavan,
Dashinpuri, Delhi110062. ......Defendants
DATE OF INSTITUTION : 05.06.2010
DATE OF RESERVING THE ORDER : 30.09.2013(Forenoon)
DATE OF DECISION : 30.09.2013(Afternoon)
JUDGMENT
1. The present suit has been filed by the plaintiff against the Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 1 of 9 defendant for recovery of Rs.84,964/ along with interest of Rs.45,880/ i.e. a sum of Rs.1,30,844/ along with pendente lite and future interest @24% per annum and costs of the suit.
Facts as per plaint
2. The plaintiff as proprietor of M/s Surya Distributors supplied electronic goods to the defendant against invoices/bills which were duly received and acknowledged by the defendant. In the routine course of business parties maintained open, mutual and current account. As per the accounts of the plaintiff, a sum of Rs.84,964/ is outstanding against the defendant as on 31.05.2010 which the defendant has not paid despite repeated requests. A legal notice dated 23.01.2010 was also got issued but no payment has been made by the defendant. Hence the present suit as per which the interest is claimed @24% per annum on the basis of contract between the parties and trade, usages and customs. Facts as per written statement.
3. Preliminary objections have been raised in respect of the plaint not being verified as per law; of the suit being without any cause of action; of concealment of material facts by the plaintiff; of the suit being barred by Limitation Act; of non compliance of requirements of CPC; of Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 2 of 9 no document being placed on record to show any acknowledgment, agreement or contract or understanding by the defendant to pay the suit amount.
4. On merits it has not been denied that the defendant had been pruchasing the goods from the plaintiff from time to time against bills/invoices though a defence has been set up that entire payment has already been made by the defendant to the plaintiff. It is also stated that the defendant had won a motorcycle which the plaintiff did not give to the defendant. Rest of the averments have been denied on merits.
5. No replication has been filed by the plaintiff. Issues
6. From the pleading of the parties the following issues were framed by the Ld. Predecessor of this court on 29.07.2011:
(1) Whether the suit of the plaintiff is liable to be dismissed as the plaintiff has concealed the material facts from this court?OPD (2) Whether the suit of the plaintiff is barred under the limitation Act? OPD (3) Whether entire payment has been made by the defendant and no amount is recoverable? OPD (4) Whether the plaintiff is entitled to decree of recovery?OPP (5) Whether the plaintiff is entitled to interest? If so, at what rate?Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 3 of 9
OPP (6) Relief, if any.
Evidence
7. To prove his case, the plaintiff has examined only one witness i.e. himself as PW1 and tendered his evidence by way of affidavit (Ex.PW1/A) on similar lines as his plaint and was duly crossexamined on behalf of the defendant. PW1 also relied upon the following documents, that is, ● Invoice No.2037 dated 07.11.2007 for Rs.66,500/ (Ex.PW1/1); ● Invoice No.2038 dated 07.11.2007 for Rs.61,250/ (Ex.PW1/2); ● Invoice No.2055 dated 08.11.2007 for Rs.53,500.01 (Ex.PW1/3); ● Invoice No.2064 dated 08.11.2007 for Rs.62,400/ (Ex.PW1/4); ● Invoice no.2512 dated 04.02.2008 with acknowledgment on behalf of Suvidha Enterprises (Ex.PW1/5);
● Invoice no.2667 dated 23.02.2008 with acknowledgment on behalf of Suvidha Enterprises (Ex.PW1/6);
● Ledger account from 01.04.2007 to 31.03.2008 (Ex.PW1/7); ● Statement of account from 01.04.2008 to 31.03.2009 (Ex. PW1/8); ● Statement of accounts from 01.04.2009 to 30.04.2010 (Ex.PW1/9); ● Legal notice dated 23.01.2010 (Ex.PW1/10) with UPC and courier receipts with tracking report (Ex. PW1/11 to Ex.PW1/13).
8. Despite opportunity, the defendant chose not to lead any defence evidence.
9. Final arguments were advanced on behalf of both the parties. Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 4 of 9
10. I have carefully considered the submissions made on behalf of the parties and carefully perused the evidence on record. From the evidence on record my issue wise findings are as under:
Issue no.1: Whether the suit of the plaintiff is liable to be dismissed as the plaintiff has concealed the material facts from this court?
11. The onus to prove this issue was on the defendant. However, for reasons best known to the defendant none stepped in the witness box on behalf of the defendant to depose as to what material facts have been concealed from the court by the plaintiff. Even in the crossexamination of PW1, the defendant has been unable to elicit any admission in respect of concealment of any material facts. Thus, in the absence of any defence evidence having been led by the defendant, this issue is decided against the defendant and in favour of the plaintiff.
Issue no.2: Whether the suit of the plaintiff is barred under the Limitation Act?
12. The onus to prove this issue was on the defendant. However, for reasons best known to the defendant none stepped in the witness box on behalf of the defendant to prove this issue also. On the other hand the Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 5 of 9 plaintiff has deposed as PW1 that the accounts between the parties, were open, mutual and current accounts being duly maintained by the parties in the routine course of business and has relied upon the statement of accounts (Ex. PW1/7 to Ex. PW1/9). As per the statement of accounts, the last payment has been made by the defendant on 29.03.2008 and the present suit having been filed on 05.06.2010 is thus within the period of limitation. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue no.3: Whether entire payment has been made by the defendant and no amount is recoverable?
13. The onus to prove this issue was on the defendant. However, for reasons best known to the defendant none stepped in the witness box on behalf of the defendant to depose as to fact of the payment having been made by the defendant. Even in the crossexamination of PW1, the defendant has been unable to elicit any admission in respect of the defendant having paid the entire outstanding anount to the plaintiff. Thus, in the absence of any defence evidence having been led by the defendant, this issue is decided against the defendant and in favour of the plaintiff. Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 6 of 9 Issue no. 4: Whether the plaintiff is entitled to decree of recovery?
14. The onus to prove this issue was on the plaintiff. The plaintiff as PW1 has relied upon the invoices Ex. PW1/1 to Ex. PW1/6 to prove supply of goods to the defendant. PW1 was able to withstand the rigours of crossexamination in respect of the invoices as no suggestions were put to the witness as to the invoices being false. During the cross examination, the defendant was also unable to elicit any admission from PW1 in respect of the defendant having made the entire payment in respect of the vouchers reflected in the statement Ex. PW1/7 or in respect of the payment having been made in respect of the entry at point A and B in Ex.PW1/7 that is against the voucher number 3491 as PW1 denied the suggestion in lieu of this cheque which was returned cash payment was made. No questions have been put to PW1 in respect of Ex. PW1/8 and Ex. PW1/9 and the same remain unrebutted. The invoices Ex.PW1/1 to Ex.PW1/6 corroborate the entries made in Ex.PW1/7. The statement of accounts as filed by the plaintiff indicate that a sum of Rs. 84,964.01 was due and outstanding against the defendant on 30.04.2010. No evidence has been led by the defendant at all to prove the payment of the entire outstanding money nor has the defendant placed on record his statement Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 7 of 9 of accounts. In these circumstances, on the basis of the preponderance of probabilities, the plaintiff has been able to discharge the onus cast upon him. This issue is thus accordingly decided in favour of the plaintiff and against the defendant.
Issue no. 5: Whether the plaintiff is entitled to interest? If so, at what rate?
15. The onus to prove this issue was on the plaintiff. PW1 has deposed that the plaintiff is entitled to award of interest @24% per annum on the outstanding amount on the basis of contract between the parties and trade, usages and customs. No rebuttal has come to the testimony of PW1 during his crossexamination or by way of any evidence led by the defendant. Thus, the testimony of PW1 remains unrebutted qua the rate of interest. However, perusal of Ex. PW1/1 to Ex. PW1/6 reveals that no rate of interest has been mentioned thereon. Further no evidence has been placed on record that any demands were made prior to 2010 for making the payment of the outstanding amount. In these circumstances as the transaction between the parties being commercial in nature, interests of justice will be met if the plaintiff is Civil Suit No.65/10 Agosh Jain Vs. Robin Singh Page 8 of 9 awarded prior interest and pendente lite interest @18% per annum and future interest@6% per annum. This issue is decided accordingly. Relief:
16. In view of my findings on issue no.4 and 5, the suit of the plaintiff is decreed against the defendant for Rs.84,964/ with prior interest @ 18% per annum on Rs.84,964/ from date of last payment ie 19.04.2008 till the date of filing of the suit; pendentelite interest@18% per annum from the date of filing of the suit till the date of decree and future interest@6% per annum on the decreetal amount till realisation.
17. The plaintiff is also awarded the costs of the suit against the defendant.
18. Decree Sheet be prepared accordingly.
19. File be consigned to the Record Room after necessary compliance.
Announced in the Open Court
on 30.09.2013 (Pooja Gupta)
Civil Judge03(South District)
New Delhi
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