Delhi District Court
Shalini Mahesh Kumar Dudhani vs Prashanta Kumar Sahoo on 20 May, 2024
IN THE COURT OF MS. SALONI SINGH, SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, KARKARDOOMA
COURTS, SHAHDARA
Civil Suit No.961/23
Unique Case ID no.DLSH03-001849-2023
Smt. Shalini Mahesh Kumar Dudhani,
Proprietor of M/s. VD Garments,
Through its proprietor
At H.No. IX/7359,
Old no.840 Gurudwara Gali,
Chander Hass Gali, Gandhi Nagar,
New Delhi- 110031. ...Plaintiff
Vs.
Prashanta Kumar Sahoo,
Proprietor of Maa Tarini Mall,
1st Floor, Ghasipura,
Main Road, Ghasipura,
Odisha-756132. ...Defendant
Suit for Recovery
Date of Institution : 18.09.2023
Date of Reserving Judgment : 13.05.2024
Date of Decision : 20.05.2024
Decision : Decreed
Ex-parte Judgment:-
The present suit is for recovery of Rs. 2,59,638/-(Rupees Two
Lakh Fifty-Nine Thousand Six Hundred and Thirty-Eight Only)
alongwith pendente-lite and future interest @ 24% per annum on
Digitally signed
by SALONI
SALONI SINGH
Date:
SINGH 2024.05.20
17:41:36
+0530
C.S. No. 961/23 Pg no.1/7
the decretal amount till the realization of the same from the date
of institution of the suit and costs of the suit.
1.The brief facts, as given in the plaint, are as follows:- The plaintiff is the proprietor of M/s. V D Garments, which deals in manufacturing and wholesale business of denim/non-denim garments. Mr. Deepak Kumar Jha has been appointed by the plaintiff as her authorised representative (AR) to sign, institute, verify the plaint, affidavit of evidence, to depose etc., on behalf of the plaintiff, a vide Special Power of Attorney dated 28.08.2023. The plaintiff is busy in the day to day affairs of the business and is not in a position to appear before the court. The AR of the plaintiff is the accountant of thte plaintiff's firm and is well conversant with the facts of the case. The defendant is the proprietor of Maa Tarini Mall and had placed an order for purchase of jeans/pant from the plaintiff. The plaintiff issued two invoices dated 31.10.2020 and 04.11.2020 which was acknowledged by the defendant. The plaintiff supplied the material as per invoices and despite repeated requests, the defendant has failed to pay the outstanding amount of Rs. 1,56,808/-(Rupees One Lakh Fifty-Six Thousand Eight Hundred and Eight Only) to the plaintiff. The plaintiff was compelled to issue legal notice dated 14.04.2023 raising the said demand, however, the defendant has not paid the due amount.
2. The summons of the present suit were issued on 18.09.2023 under Order V of Code of Civil Procedure, 1908 (for short, "CPC") for service to be effected upon the defendant by way of ordinary process and registered Post returnable on 30.10.2023. Digitally signed by SALONI SALONI SINGH Date:
SINGH 2024.05.20 17:41:46 +0530 C.S. No. 961/23 Pg no.2/7 The summons to the defendant was served by way of post on 09.12.2023. On the date fixed for hearing, no one appeared on behalf of the defendant and, thereafter, no written statement has been filed. Accordingly, the matter was proceeded ex-parte vide order of this Court dated 11.01.2024 and was listed for plaintiff's evidence.
3. To substantiate their case, the plaintiff has examined one witness i.e., Sh. Deepak Kumar Jha, SPA holder of the plaintiff , as PW-1, who tendered his evidence by way of an affidavit, Exhibit PW1/A. In the said affidavit, PW-1 has deposed on the same lines, as stated in the plaint and he has placed on record and relied upon the copy of original SPA executed by the plaintiff in favour of deponent, which bears signatures of the plaintiff at point A and signatures of the deponent at point B as Exhibit PW-1/1 (OSR), photocopy of Aadhar Card of the plaintiff as Mark X, photocopy of the PAN Card of the plaintiff as Mark X-1, photocopy of Form GST REG-06 as Exhibit PW-1/4, computer generated copy of tax invoice no. VD080/20-21 dated 04.11.2022 for an amount of Rs.81,995/- as Exhibit PW-1/5, computer generated copy tax invoice no.VD083/20-21 dated 04.11.2020 for an amount of Rs.74,813/- as Exhibit PW-1/6, computer generated copy of e- way bill dated 31.10.2020 as Exhibit PW-1/7, computer generated copy of e-way bill dated 04.11.2020 as Exhibit PW- 1/8, photocopy of Aadhar Card of the deponent as Exhibit PW- 1/19 (OSR), photocopy of ledger account of defendant as Exhibit PW-1/10 (Colly) (4 pages), photocopy of legal notice dated 14.04.2023 alongwith postal receipt as Exhibit PW-1/11 Digitally signed by SALONI SALONI SINGH SINGH Date:
2024.05.20 17:41:54 +0530 C.S. No. 961/23 Pg no.3/7 (Colly), copy of tracking report of the postal receipt as Mark PW-1/12, photocopy of legal notice dated 28.03.2023 alongwith postal receipt as Exhibit PW-1/13 (Colly), copy of tracking report of postal receipt as Mark PW-1/14 and certificates under Section 65B of the Indian Evidence Act,1872 in support of the computer generated invoices, e-way bills, ledger account and the GST REG-06 as Exhibit PW-1/15 and Exhibit PW-1/15 A. No other witness was examined by the plaintiff.
4. Having perused the court record including the evidence led on behalf of the plaintiff, it is to be determined as to whether the plaintiff is entitled to recover the sum of Rs.2,59,638/-(Rupees Two Lakh Fifty-Nine Thousand Six Hundred and Thirty-Eight Only) alongwith interest and costs of the suit.
5. To prove her case, the plaintiff called upon and examined only one witness i.e., the SPA holder Sh. Deepak Kumar Jha as PW-1. PW-1 deposed stating that he is authorized to represent the plaintiff by virtue of the SPA executed by the plaintiff and placed on record as Exhibit PW-1/1. In order to prove the liability of the defendant, PW-1 has relied upon and placed on record the invoices, Exhibit PW-1/5 and Exhibit PW-1/6, issued by the plaintiff for the goods supplied to the defendant. PW-1 has also placed on record the e-way bills as Exhibit PW- 1/7 and Exhibit PW-1/8 to show that the goods were delivered to the defendant. Further, PW-1 has relied upon the ledger statement of the defendant as Exhibit PW-1/10, in terms of which no payments have been made by the defendant to the Digitally signed by SALONI SALONI SINGH SINGH Date:
2024.05.20 17:42:01 +0530 C.S. No. 961/23 Pg no.4/7 plaintiff in respect of the invoices in question. The said ledger statement, invoices and the e-way bills are electronic documents and have been proved by PW-1 with the aid of his certificate, issued under Section 65-B of the Indian Evidence Act, 1872, placed on record as Exhibit PW-1/15 and Exhibit PW-1/15A. The plaintiff has also relied upon two legal notices dated 14.04.2023 and 28.05.2023 to show that they were sent by the plaintiff to the defendant, requiring him to pay the outstanding amount of Rs. 1,56,808/- (Rupees One Lakh Fifty- Six Thousand Eight Hundred and Eight Only) with interest @ 18% per annum on the said amount and legal notice charges of Rs. 11,000/- (Rupees Eleven Thousand Only). To prove the delivery of the said legal notices to the defendant, PW-1 has placed on record postal receipts as part of Exhibit PW-1/11 (Colly) and Exhibit PW-1/13 (Colly). It can be presumed that the legal notices were delivered to the defendant. No reply to the legal notices was sent by the defendant and in this context an adverse inference may be drawn against the defendant.
6. The aforesaid evidence adduced by the plaintiff remains unrebutted and unchallenged on record. The next question for consideration is whether the suit has been filed within the limitation period. The invoices Exhibit PW-1/5 and Exhibit PW-1/7 are of October 2020 and November 2020. The present suit was filed on 18.09.2023 and is within the period of limitation.
7. The plaintiff is claiming principal amount of Rs.1,56,808/-
(Rupees One Lakh Fifty-Six Thousand Eight Hundred and Digitally signed by SALONI SALONI SINGH Date:
SINGH 2024.05.20 17:42:08 +0530 C.S. No. 961/23 Pg no.5/7 Eight Only), which is the sum total of both the invoices, and pre-suit interest @ 24% per annum on the delayed payment/principal amount. The plaintiff is, thus, seeking a total of Rs.2,59,638/-(Rupees Two Lakh Fifty-Nine Thousand Six Hundred and Thirty-Eight Only) inclusive of the said interest. The plaintiff has not specifically mentioned in her suit the exact period for which this pre-suit interest @ 24 % per annum is being claimed. It is not the case of the plaintiff that there was any written agreement between the parties for payment of interest @ 24% per annum on the delayed payments of the invoices. There is no interest specified in the invoices to be charged on the delayed payments. In fact, no time period has been mentioned in the invoices for payment of the invoices. Further, in the legal notices Exhibit PW-1/11 (Colly) and Exhibit PW-1/13 (Colly), the plaintiff has claimed interest @ 18% per annum and not 24% per annum on the principal amount. This discrepancy in the interest claimed on the principal amount has not been explained. In the absence of any written agreement between the parties for interest to be charged on delayed payments of the invoices, the plaintiff is not entitled to recovery of pre-suit interest @ 24 % per annum.
8. The plaintiff further claims interest @24% per annum with effect from the date of filing of the suit till realisation of the suit amount. Keeping in view the commercial transaction between the parties, in exercise of the discretion under Section 34 of CPC, this Court awards pendent lite and future interest at the rate of 8% per annum instead of @ 24 % per annum, which appears to be exorbitant and unreasonable. Digitally signed by SALONI SALONI SINGH Date:
SINGH 2024.05.20 17:42:20 +0530 C.S. No. 961/23 Pg no.6/7
9. In light of the above findings, this Court is of the view that the plaintiff has been able to discharge the burden on her to prove that she is entitled to recover only Rs. 1,56,808/-(Rupees One Lakh Fifty-Six Thousand Eight Hundred and Eight Only) from the defendant towards the principal amount (amount due as per the two invoices). Accordingly, the suit of the plaintiff is decreed ex parte for Rs. 1,56,808/-(Rupees One Lakh Fifty-Six Thousand Eight Hundred and Eight Only) with pendente lite and future interest @ 8% per annum from the date of filing of the suit till its realization and costs of the suit of Rs. 10,000/- (Rupees Ten Thousand Only) in favour of the plaintiff and against the defendant. Decree Sheet be prepared accordingly.
Digitally signed by SALONI SALONI SINGH Pronounced in Open Court SINGH Date: 2024.05.20 on May 20, 2024 17:42:28 +0530 (SALONI SINGH) Senior Civil Judge-cum RC KKD/SHD/DELHI/20.05.2024 C.S. No. 961/23 Pg no.7/7