Delhi District Court
Ozone Overseas Pvt. Ltd vs Akshaet Engineering Construction ... on 30 November, 2023
1
IN THE COURT OF MS. VEENA RANI :ADJ-06, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
CNR NO:-DLWT01-001870-2014
Suit No:612241/2016 (Initially Suit no.2627 of 2014)
M/s Ozone Overseas Pvt Ltd
Through its Director/Authorized Representative
Sh. Amit Sehgal,
Registered Office at H-40, Bali Nagar,
New Delhi-110015 .....Plaintiff.
Versus
1 Akshaet Engineering & Construction
Service Pvt. Ltd.
Through its director
204, Indosaigon Industrial Estate
Kurla Road, Marol Naka
Mumbai-400059
2. The Director,
Akshaet Engineering & Construction
Service Pvt. Ltd.
Mr. Vijay Kumar Goyal,
Flat no.603, Juhu Trton Co-operative
Society Greenfield Estate Society,
Juhu Post Office,
AB Nair road, Mumbai-400049
3. The Director,
Akshaet Engineering & Construction
Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet
Engineering & Construction Service Pvt. Ltd.
2
Service Pvt. Ltd.
Mr. Akshaet Vijay Kumar Goyal,
Flat no.603, Juhu Trton Co-operative
Housing Society Greenfield Estate Society,
Near Juhu Post Office,
AB Nair road, Mumbai-400049 .....Defendants
SUIT FOR RECOVERY OF Rs.66,49,752.55/- ALONG
WITH PENDENTELITE AND FUTURE INTREST @ 24%
PER ANNUM TILL REALIZATION
Date of institution of suit :01-09-2014
Date reserved for Order :22-11-2023
Date of Final Order :30-11-2023
JUDGMENT
1) Plaintiff has filed the present suit against the defendants for the recovery of Rs.66,49,752.55/- along with pendentelite and future interest @ 24% per annum till the realization of the amount and for awarding of the cost of the suit in favour of the plaintiff. Briefly the facts of the case of the plaintiff are as under:-
1) It is averred in the plaint that plaintiff company is engaged in the manufacture and sales of Glasses, Door Controls and fabrication of steel products etc. and Sh. Amit Sehgal is the director of its company. Defendant no.1 is a Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.3
private limited company and defendant no.1 and 2 are its directors. The defendants were regularly placing orders for goods with the plaintiff and the same were duly supplied through various invoices to the destinations as directed by the defendants. On account of non-payment of price of the goods, the plaintiff was constrained to send a legal notice dt. 27-07- 2013 demanding Rs.46,61,276/- along with the C-form or the tax amount against C form, despite that no payment was made by defendants and plaintiff invoked the Arbitration Clause and intimated the same to defendants vide its communication dt. 02-09-2013 for the appointment of Sole Arbitrator Sh. Mohd. Arif. However, Ld. Arbitrator on the application of the defendants under section 16(1) of the Arbitration & Conciliation Act, 1996 held that dispute of the parties is outside the jurisdiction of the Arbitrator. Hence, the present suit.
2) It is stated that it is mentioned on the bills issued by the plaintiff against the defendants that if the bill is not paid the interest @ 24% per annum will be charged upon the defendants. It is submitted that the defendants have placed orders for goods with the plaintiff after receiving the plaintiff's performs invoice dated 07-09-2012 vide its purchase order dated 08-09-2012 and same were duly supplied to the defendant. It is averred by plaintiff that he used to maintain a running statements of account in the name of the defendants in the regular course of business on credit and debit basis. As on 20-12-2012 an amount of Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
4Rs.47,08,051.85/- was outstanding in the names of defendants. The defendants stated to have reduced their outstanding liability and had made a payment of Rs.9 lakhs on 24-12-2012 through a cheque which was dishonored on presentation. Defendant also stated to have issued three posted dated cheques amounting to two cheques of Rs.9 Lakhs each and one cheque of Rs.2 lakh respectively which are still in the possession of plaintiff and filed herein along with the present suit. It is stated that finally on 08-01-2013 defendants made payment of Rs.6 lakhs leaving behind an outstanding amount of Rs.41,08,051.85/- after adjustment of all payments made by the defendants. It is stated that total interest on the aforesaid outstanding amount is Rs.15,61,059.70/- and Tax amount due against non-receipt of C-forms is Rs.9,80,641/- and thus overall total outstanding amount against the defendants is Rs.66,49,752.55/- which the defendant has failed to pay to plaintiff despite requests and legal notice. Hence, the present suit.
3) Defendants filed written statement and raised preliminary objection that entire cause of action has arisen in Mumbai, therefore, this court has no jurisdiction to try the present suit. Defendant further raised objection that the suit is bad for misjoinder of necessary parties as defendant no.2 and 3 are the directors of defendant no.1 company which is a separate juristic entity and directors cannot be held personally liable on the principle of vicarious liability in a matter such as this.
Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
54) In their reply on merits it is stated by defendants that on the assurance of plaintiff, the defendant no.1 company executed a purchase order dated 08-12-2012 with plaintiff company for the supply of spider sets at the total cost of Rs.1,19,77,471.13/- which were delivered on or before 09-10- 2012. It is stated that plaintiff has failed to deliver the said items on time and units of aforesaid goods delivered were faulty and were useless for defendants which fact was brought to the notice of the plaintiff and plaintiff admitted the said fault. It is submitted that ultimately the defendant no.1 company could not complete the contract of supply of goods to its clients due to the failure to deliver the spider sets by the plaintiff's company and defendant company suffered losses on account of the plaintiff. The defendants have denied all other allegations and averments of the plaintiff. It is denied that form C have not been delivered to plaintiff as alleged. It is denied by the defendants that they are liable to make the payment outstanding amount as alleged by the plaintiff in the present case. It is stated that suit of the plaintiff is false and liable to be dismissed.
5) In his replication the plaintiff has reiterated its averments of plaint and controverted the averments of the defendants.
6) From the pleadings of the parties, the following issues were framed for the trial of the case:-
ISSUE No.(1): Whether the plaintiff is entitled for the money decree to the tune of Rs.66,49,752.55/- ?OPP Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.6
ISSUE No.(2):Whether the plaintiff is entitled for the interest @24% on the amount claimed if yes, for which period ? OPP ISSUE No.(3): Whether this court has no territorial jurisdiction to entertain the present suit ? OPD ISSUE No.(4): Whether this case is not maintainable for the misjoinder of necessary party ?OPD ISSUE No.(5) Relief.
7) Plaintiff company has examined Sh. Amit Sehgal its Director/ Authorized Representative as PW1 who has filed his evidence by way of evidenciary affidavit Ex.PW1/A bearing his signatures at point A and B. During his tendering of evidenciary affidavit PW1 has relied upon and exhibited documents i.e. Ex.PW1/1 to Ex.PW1/27 and admitted documents by the plaintiff are E.P1 to Ex.P5. In his evidenciary affidavit PW1 has reiterated the averments made in the plaint.
8) PW-1 has been cross examined by the ld. Counsel for the defendant on 07-03-2018 and 14-01-2020 at length.
9) Plaintiff company has also examined Sh. Kundan Singh Bisht, its Sr. Manager, Accounts as PW2 who has filed his evidence by way of evidenciary affidavit Ex.PW2/A bearing his signatures at point A and B. During his tendering of evidenciary affidavit PW2 has relied upon and exhibited documents i.e. Ex.PW2/1(Statement of account) and Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.7
Ex.PW2/2.(Certificate u/s 65 B of Indian Evidence Act. However, despite opportunity defendants have failed to cross examine PW-2 and their opportunity to cross examine PW2 was closed on 29-05-2023.
10) No other witness was examined by the plaintiff and Sh.
Mahesh Katayan, ld. Counsel for the plaintiff company has closed its evidence on 29-05-2023.
11) Despite opportunity defendants have failed to lead any evidence in the present case and their opportunity to lead evidence was closed vide order dated 29-05-2023.
12) I have heard the argument of ld. Counsel for the plaintiff and perused the material on record/file. However, none has appeared on behalf of the defendant to address their parts of final arguments. My findings on the issues are as under:-
13) ISSUE No.(3): Whether this court has no territorial jurisdiction to entertain the present suit ? OPD At the onset it will be appropriate to dispose of the ISSUE No.3 relating to the territorial jurisdiction of this court.
14) The defendants have contended that entire cause of action had arisen in Mumbai.
15) The jurisdiction of the Court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors. A cause of action means every fact, which, if traverse d, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.8
with the l aw applicable to them gives the plaintiff a fight to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the fight sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a fight to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. Under section 20(c) of the Code of Civil Procedure subject to the limitation stated there before, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. Part of cause of action arises where money is expressly or impliedly payable under a contract.
16) The plaintiff-herein was examined as PW-1 (Amit Sehgal, Chief Operating Officer of the plaintiff-company) and was also cross-examined by the Ld. Counsel for the defendant. The onus to prove this ISSUE No.3 was on the defendant. No question pertaining to the territorial jurisdiction was put to the said witness PW-1.
17) Perusal of the admitted document Ex.P1 (Performa Invoice) reveals the Delhi address of the plaintiff-herein and also reveals the Terms and Conditions to the effect that all Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
9disputes were subject to jurisdiction of Delhi Courts. The purchase order Ex.P-2 also mentions the Delhi address of the plaintiff-herein. All the other documents i.e. PW-1/11 to PW- 1/27 has the Delhi address of the plaintiff-herein.
18) The plaintiff-herein is fulfilling the necessary ingredients of the cause of action as per the tests laid down in M/S. Dhodha House vs S.K. Maingi {Civil Appeal No. 6248 of 1997 decided on 15 December, 2005} which constitutes an authoritative enunciation of the expression "carries on business", as used in Section 20 of the CPC.
"The phrase 'carries on business" at a certain place would, therefore, mean having an interest in a business at that place, a voice in what is done, a share in the gain or loss and some control thereover. The expression is much wider than what the expression in normal parlance connotes, because of the ambit of a civil action within the meaning of section 9 of the Code."
19) In view of the above, this ISSUE No.3 relating to the territorial jurisdiction of this court is decided against the defendants and in favour of the plaintiff.
20) ISSUE No.(4): Whether this case is not maintainable for the misjoinder of necessary party ?OPD The Defendants have contended that the suit is bad for misjoinder of necessary parties as defendant no.2 and 3 are the directors of defendant no.1 company which is a separate juristic entity and directors cannot be held personally liable on the principle of vicarious liability in a matter such as this.
Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
10'Joinder of Parties' means joining several parties as plaintiffs or defendants in the same suit. All or any of those persons can be joined to a suit as plaintiffs or defendants in whom the right to any relief is alleged to exist, or who is alleged to possess any interest in the subject-matter of litigation, or in the opinion of the court is a proper or a necessary party. Rule 9 of Order 1 of CPC lays down that no suit shall be defeated by reason of misjoinder or non-joinder of parties. As per State Of Orissa vs Shyam Sundar Patnaik [1966 AIR 1271] where two or more persons have been joined as defendants in one suit but the right to relief alleged to exist against each defendant does not arise out of the same act or transaction (or series of acts or transactions) and if separate suits were brought against each defendant, no common question of fact or law would have arisen, there is misjoinder of defendants.
21) In a suit for recovery of money, only such persons can be impleaded as defendants against whom averments are made which on proof would entitle the plaintiff to a decree whether jointly or severally or in the alternative against the said persons named as defendants. There must be a cause of action disclosed against a person impleaded as a defendant. Thus, directors are agents of the company to the extent they have been authorized to perform certain acts on behalf of the company. Directors of a company owe no fiduciary or contractual duties or any duty of care to third parties who deal with the company. Directors of a company cannot be treated Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
11as acting as agents of the company, in the conventional sense of an agent, vis-a-vis third parties. Other than where directors have made themselves personally liable i.e. by way of guarantee, indemnity etc. liabilities of directors of a company, under common law, are confined to cases of malfiescence and misfiescence i.e. where they have been guilty of tort towards those to whom they owe a duty of care i.e. discharge fiduciary obligations. Additionally, qua third parties, where directors have committed tort. To the third party, they may be personally liable. But this liability would not flow from a contract but would flow in an action at tort. The tort being of misrepresentation of inducement and causing injury to the third party having induced the third party to part with money.
(TRISTAR CONSULTANTS v. M/s. VCUSTOMER SERVICES INDIA PVT. LTD. & ANR. [C.R.P. No.365/2006 dated 05.03.200]
22) In the present case there is no averment in the plaint that the Defendants No.2 & 3 had made themselves personally liable i.e. by way of guarantee, indemnity etc. liabilities of directors of a company. Moreover, even the dishonored cheques i.e. Ex.P-3, Ex.P-4 and Ex.P-5 have been signed in the name of the company i.e. Defendant no.1 and not in an individual capacity. The contentions of the defendants have force. Therefore, the Defendants No.2 and 3 could not have been made a party in their individual capacity. The Defendant No.1 is already a party through its director. The suit is maintainable only against the Defendant No.1. Thus ISSUE Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
12No.4 is decided against the plaintiff-herein an in favour of the Defendants No. 2 & 3.
23) ISSUE No.(1): Whether the plaintiff is entitled for the money decree to the tune of Rs.66,49,752.55/- ?OPP The Plaintiff company has examined Sh. Amit Sehgal its Director/ Authorized Representative as PW1 who has filed his evidence by way of evidenciary affidavit Ex.PW1/A bearing his signatures at point A and B. During his tendering of evidenciary affidavit PW1 has relied upon and exhibited documents i.e. Ex.PW1/1 to Ex.PW1/27 and admitted documents by the plaintiff are E.P1 to Ex.P5. In his evidenciary affidavit PW1 has reiterated the averments made in the plaint. PW-1 has been cross examined by the ld. Counsel for the defendant on 07-03-2018 and 14-01-2020 at length.
24) Plaintiff company has also examined Sh. Kundan Singh Bisht, its Sr. Manager, Accounts as PW2 who has filed his evidence by way of evidenciary affidavit Ex.PW2/A bearing his signatures at point A and B. During his tendering of evidenciary affidavit PW2 has relied upon and exhibited documents i.e. Ex.PW2/1(Statement of account) and Ex.PW2/2. (Certificate u/s 65 B of Indian Evidence Act. However, despite opportunity defendants have failed to cross examine PW-2 and their opportunity to cross examine PW2 was closed on 29-05-2023.
25) No other witness was examined by the plaintiff and Sh.
Mahesh Katayan, ld. Counsel for the plaintiff company has Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
13closed its evidence on 29-05-2023.
26) Despite opportunity defendants have failed to lead any evidence in the present case and their opportunity to lead evidence was closed vide order dated 29-05-2023.
27) Sections 101 and 102 of the Evidence Act would assume importance in the present context. Section 101 of the Evidence Act provides for initial burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. If a person desires a Court to give judgment that another person be punished for a crime, then the first person must prove that the second person has committed the crime. Section 102 of the Evidence Act deals with the proposition on whom burden of proof lies. The initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
28) The three cheques (Ex.P-3, Ex.P-4 and Ex.P-5) were handed over to the plaintiff by the defendant as advance payment for securing delivery of goods. However, the defendant requested not to deposit the said three cheques. That is to say that it is not the defense of the defendant No.1 Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
14that the following cheques were not issued by it. This fact also emerges from the Legal Notice dated 27.07.2013 which was sent by the plaintiff to the defendant. Thus, the plaintiff has been able to prove its version vis-à-vis following cheques which has not been denied by the defendant no.1. a. Ex.P-3 : Rs.9,00,000/- (Rupees Nine Lakh) in Unpaid cheque No. 043678 sated 15.01.2013 drawn on SBH (State Bank of Hyderabad. Brach- Vile Parle Mumbai payable to plaintiff-company i.e. OZONE OVERSEAS Pvt. Ltd.
b. Ex.P-4 : Rs.9,00,000/- (Rupees Nine Lakh) in Unpaid cheque No. 043679 sated 28.12.2012 drawn on SBH (State Bank of Hyderabad. Brach- Vile Parle Mumbai payable to plaintiff-company i.e. OZONE OVERSEAS Pvt. Ltd.
c. Ex.P-5 : Rs.2,00,000/- (Rupees Two Lakh) in Unpaid cheque No. 043680 sated 10.01.2013 drawn on SBH (State Bank of Hyderabad. Brach- Vile Parle Mumbai payable to plaintiff-company i.e. OZONE OVERSEAS Pvt. Ltd.
29) The only defense that the defendant seems to have raised is regarding the time of deliveries and the quality of the goods etc. In that regard the plaintiff witness PW-1 was cross- examined where the said witness PW-1 stated the following (only relevant portion reproduced):
"Ques": Were the quantities of spider sets and other material delivered to the defendant company or did Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.15
it arrange to have it picked up from the plaintiff co. premises?
Ans. From 22.09.2012 the first invoices has been done and the material has been supplied by ourselves and thereafter, the project was going on then the defendant are started to pick up the material from the plaintiff as and when required. Further, we supplied the goods as a door delivery as well as arrange personal staff for supply of the goods to the purchaser.
I do not recollect if the parties have entered into any other contract other than the purchase order dated 08.09.2012(P2) ....
Ques. I put it to you that the quantities for the first lot had to be delivered on or before 09.10.2012. What do you have to say?
Ans. I do not recollect what was the exact date for supplying the goods to the defendant. I can tell after showing the record.
....
We have only supplied the material to the defendant no1 and I am not aware where defendant has used those material. We have supplied the material through a logistic company and the documents pertaining to the receipt of material are on record. Material has been supplied Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.16
through Starlet Logistics Pvt Ltd with various invoices as available on record. All invoices are annexed with the copy of receipt of logistic company and also gate pass issued by the plaintiff company. ...... We have only supplied the material as per requirement of defendant so the question of rejecting or accepting any design with respect to façade does not arise....
The quality of material supplied was of acceptable standard. E-mail, Ex. D2 was received by us and in that E-mail it was accepted that Mock up was not of good quality.
Plaintiff has to supply specific sized material i.e. not of the standard size and same is to be modified as per requirement of the defendant/buyer company. E-mail dated 06.10.2012 is with regard to specific changes which are to be made in the material so that they comply with the design. Return mail dated 06.10.2012, Ex. D2 did not admit any short comings in the supply of various material such as studs, routal bolts etc."
30) Perusal of the e-mail. D-2 revels that the mobkup were in a bad condition and it was hoped that necessary precautionary steps will be taken in future. However, the material was not officially rejected. There are various other e- mails which have not been proved by the defendant. It is also pertinent to note that the invoices of the plaintiff are also Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
17accompanied by the GATA PASS and the related transport documentation containing the necessary details of the transportation etc.
31) The plaintiff has been able to prove and that from 22.09.2012 the first invoices has been done and the material has been supplied by the plaintiff and thereafter, the defendant started to pick up the material from the plaintiff as and when required. It has been further prove by the plaintiff that the material was supplied through a logistic company and the documents pertaining to the receipt of material are on record. Material had been supplied through Starlet Logistics Pvt Ltd with various invoices as available on record. All invoices are annexed with the copy of receipt of logistic company and also gate pass issued by the plaintiff company. The witness PW-1 also stated that the plaintiff only supplied the material as per requirement of defendant so the question of rejecting or accepting any design with respect to façade did not arise.
32) Plaintiff-herein has also proved that Legal Notice dated 27.07.2013 was issued and sent vide SPEED POST (Ex.PW- 1/3 along with receipts etc. Ex.PW-1/4 and Ex.PW-1/5) which was duly served to the defendant and demanded payment but all in vain. It is settled law that if the plaintiff, before filing the suit, makes serious assertion in the Notice to the defendant, then the defendant must not remain silent by ignoring to reply, if he does so, an adverse inference may be raised against him. In Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit Kalra & Anr. 98 (2002) DLT 573 (DB), Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
18wherein, Hon‟ble Division Bench of our Hon‟ble High Court quoted with approval the authority Kalu Ram Vs. Sita Ram, 1980 RLR (Note) 44, of our own Hon‟ble High Court which is as follows:-
"Observations of Kalu Ram's case (supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices / bills in question. But the learned Trial Court failed to draw inference against the respondents."
33) Section 3 of the Indian Evidence Act defines 'proved'.
According to this Section, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon supposition that it exists. In M. Narsimha Rao v. State of A.P., AIR 2001 SC 318 Supreme Court held that proof does not mean proof to rigid mathematical demonstration but such evidence as would induce a reasonable man to come to a conclusion. It depends upon degree of possibility of having existed.
34) Section 3 provides that a fact is said to be disproved when, after considering the matters before it, the court either believes that it does not exist or considers its non existence so probable that a prudent man ought (to act upon a supposition that it does) not exist. Thus, this standard of proof should be Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
19of ordinary prudence in person who will judge its existence or non-existence from the standard of circumstances before him. The definition of the term 'disproved' is only the converse proposition of 'proved'.
35) In Chaturbhiug Pandey v. Collector of Raigad, AIR 1969 SC 225 the Hon'ble Supreme Court held that under Section 3 the proof or disproof of a fact is to be tested on the touchstone of belief of the court or the probability or otherwise of a prudent man. There is no standard by which the weight of the evidence of the parties can be ascertained.
36) In a civil case a mere preponderance of probability is sufficient basis of decision. In view of the facts / circumstance and evidence in the present case the plaintiff is found entitled to the amount of Rs.66,49,752.55/-. Thus the ISSUES No. 1 is decided in favour of the plaintiff and against the defendant No.1.
37) ISSUE No.(2):Whether the plaintiff is entitled for the interest @24% on the amount claimed if yes, for which period ? OPP Interest is granted by the court to remedy the loss caused to the decree-holder by being deprived of money he is legally entitled to by the judgement debtor. It is a medium of compensation used to maintain the status quo by restoring the parties to their original positions. Section 34 of the Code has to be construed in accordance with the provisions of equity and Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
20reasonableness, as it solely aims to provide the decree- holder with the actual benefit which he could have had from the money which the judgement debtor is being compelled to pay. The Section does not focus on the recovery of money but on the interest that is to be levied on the sum recovered during pre-lite, pendente lite, and post-lite. The provision is of an exhaustive nature relating to the levying of interest in cases of personal decrees for payment of money.
38) The Hon'ble Supreme Court clarified in "Small Industries Development Bank of India v. M/s Sibco Investments Pvt. Ltd. (2022)" held that interest pendente lite is a discretionary matter of court that the court decides based on equitable considerations.
"12.1 As per S. 34 of the Code of Civil Procedure (CPC), award of interest is a discretionary exercise, steeped in equitable considerations. Interest is payable for different purposes such as compensatory, penal, etc...."
39) In view of the above, in the present case the plaintiff is thus entitled to the rate of interest @ 12% per annum. The ISSUE No.2 relating to rate of interest @ 12% is accordingly decided in favour of the plaintiff and against the defendant.
Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
2140) ISSUE No. 5. Relief In view of my findings on the various issues, the suit of the plaintiff is hereby decreed with cost. The plaintiff is entitled to recover a sum of Rs.66,49,752.55/- along with pendent lie interest @12% per annum from the date of the institution of the present suit till the date of passing of this decree and the same rate of interest i.e. 12% per annum shall also be payable by the defendant no.1 in future, till the final realization of the decretal amount. Decree-sheet be prepared accordingly. File be consigned to record room.
Digitally
signed by
VEENA
VEENA RANI
RANI Date:
Announced in the open court. 2023.12.12
15:32:38
+0530
(VEENA RANI)
Additional District Judge-06,
West District, Tis Hazari Courts, Delhi
Judge Code : DL271/Date:30-11-2023
Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.
22IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST DISTRICT, TIS HAZARI COURTS, DELHI CNR NO:-DLWT01-001870-2014 Suit No:612241/2016 (Initially Suit no.2627 of 2014) M/s Ozone Overseas Pvt Ltd .....Plaintiff Versus Akshaet Engineering & Construction Service Pvt. Ltd. & Anrs .....Defendants 30-11-2023 Present: Sh. Mahesh Katayan, Ld. counsel for plaintiff.
Defendants are already ex-parte.
Heard.
Vide my separate judgment, dictated and announced in the open court, the suit of the plaintiff is decreed with cost.
Decree sheet be prepared accordingly. File be consigned to
Digitally
record room. signed by
VEENA
VEENA RANI
RANI Date:
2023.12.12
15:32:45
Announced in the open court. +0530
( VEENA RANI )
Additional District Judge-06,
West District, Tis Hazari Courts, Delhi
Judge Code : DL00271/Date:30-11-2023
Suit No:612241/2016, M/s Ozone Overseas Pvt Ltd Vs. Akshaet Engineering & Construction Service Pvt. Ltd.