Delhi District Court
Nikunj Woods Private Limited vs Aakruti Boardlam Private Limited on 21 September, 2024
1
In the Court of Dig Vinay Singh, District Judge (Commercial Court)-03,
West, Tis Hazari Courts Extension Block, Delhi
CNR No. DLWT01-011707-2022
CS (COMM) No.966/2022
M/S NIKUNJ WOODS PRIVATE LIMITED
Plot no. 1, Kh. No.35/23, Nilothi Village,
Near Bharat Singh Farm, Nangloi,
New Delhi-110043 ......... Plaintiff
Versus
M/S AAKRUTI BOARDLAM PRIVATE LIMITED
Business 2, Office no.208, Near Krishna Medical,
Kalawad Road, Rajkot, Gujarat-394170. ...... Defendant
Date of institution : 07.12.2022
Date of arguments : 07.09.2024
Date of judgment : 21.09.2024
JUDGMENT
1. This is a 'commercial suit' for recovery of ₹19,65,465/- (Nineteen Lakh Sixty-
Five Thousand Four Hundred Sixty-Five), which comprises of principal amount of ₹9,80,262/- and the remaining portion as pre-suit interest calculated by the plaintiff.
2. The dispute between the parties is a 'commercial dispute' within the definition of Section 2 (1) (c) of the Commercial Courts Act, 2015. Pre-Institution Mediation between the parties remained unsuccessful vide a Non-Starter Report dated 10.10.2022, issued by the concerned District Legal Services Authority.
Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 1 of 17 2
3. Brief facts of the case, as averred in the plaint, are that plaintiff company is engaged in dealing, supplying and manufacturing of wooden furniture. The defendant company also deals in supply of Plain Particle Boards. The representative of the defendant company approached the plaintiff at its factory in Delhi and offered to sell Particle Boards manufactured by the defendant on a competitive price if the plaintiff places bulk orders and if entire payment is given in advance. The plaintiff agreed to the proposal and transferred a total sum of ₹15,43,400/- through banking channels to the defendant between 19.12.2016 to 29.04.2017. The details of those payments are mentioned in the plaint as follows: -
Serial Date HDFC Bank RTGS Transaction Amount in INR
No.
1. 19.12.2016 N354160220730203 ₹ 1,50,000/-
2. 21.12.2016 HDFCR52016122187678874 ₹ 4,50,000/-
3. 20.01.2017 HDFCR52017012089198283 ₹ 4,00,000/-
4. 29.04.2017 By Cheque no.00382 ₹ 5,43,400/-
Total Amount Advanced ₹ 15,43,400/-
3.1. The defendant supplied two consignments under invoice no.1333 & 1334, both dated 06.02.2017, for a total sum of ₹5,63,138/-. For the remaining amount of ₹9,80,262/-, neither the goods were supplied nor the amount was returned despite calls, e-mails and notice. The notice sent was on 18.04.2019, which remained unanswered. Therefore, the present suit.
3.2. Prior to filing of the suit, the plaintiff preferred a petition under Section 7 of the Insolvency and Bankruptcy Code 2016 (IBC) before National Company Law Tribunal Ahmedabad. It was dismissed for non-prosecution on 10.11.2020.
Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 2 of 17 3 Thereafter, the plaintiff filed a petition under Section 9 of IBC, which also was dismissed on 09.05.2022. In the plaint, the plaintiff has claimed benefit under Section 14 of the Limitation Act.
4. The defendant company contested the suit claiming that the suit is barred by limitation. The defendant admitted having received the amount from the plaintiff through banking channels and also admitted the fact of supply of material under the above-mentioned two invoices. Regarding the rest of the amount, what is claimed in para 4 to 8 of the WS, in reply to the corresponding paras of the plaint, is that the defendant supplied the goods to the plaintiff as demanded, but it was the plaintiff who intentionally and deliberately started harassing and humiliating the defendant on one pretext or the other and, that the defendant never refused to supply the goods to the plaintiff. It is claimed that the defendant was ready to deliver the goods and also tried to deliver the goods, but it was the plaintiff who deliberately and intentionally told the defendant not to send the goods.
4.1. In its affidavit of admission/denial of the documents of plaintiff, the defendant admitted all the documents of the plaintiff including the statement of bank account of the plaintiff; ledger account of the plaintiff; balance sheet of the defendant relied by the plaintiff; orders of NCLT Ahmedabad; as well as the e- mail. It is so admitted specifically in affidavit dated 07.04.2023 filed on record of this case on 10.04.2023. Prior to this affidavit also, under another affidavit of admission/denial dated 10.02.2023, which was not in the requisite proforma, the defendant had admitted the documents of the plaintiff.
5. From the pleadings of the parties following 4 issues were framed for determination: -
Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 3 of 17 4 "1. Whether the suit is barred by limitation? OP Defendant
2. Whether the plaintiff is entitled to decree for a sum of Rs.19,65,465? OP Plaintiff
3. If the answer to the last mentioned issue is in affirmative, whether the plaintiff is entitled to any interest? If so, at what rate and for which period? OP Plaintiff
4. Relief."
6. In order to achieve expeditious disposal of the matter, a Court Commissioner was appointed to record evidence and evidence of both the sides was recorded before the Court Commissioner.
7. The plaintiff examined its AR as PW1, whereas the defendant examined two witnesses in defence.
8. PW1 Girish Agarwal, tendered his examination in chief by way of affidavit reiterating the averments of the plaint, which need not be reiterated for the sake of brevity. PW1 relied upon 9 documents Ext.PW1/2 to Ext.PW1/10, which are; copy of board Resolution in his favour Ext.PW1/2; copy of Master data of the plaintiff company Ext.PW1/3; copy of bank statement of the plaintiff Ext.PW1/4; copy of the two invoices under which defendant supplied the material both Ext.PW1/5; copy of e-mail sent by the plaintiff to the defendant Ext.PW1/6; copy of ledger account maintained by the plaintiff qua the defendant Ext.PW1/7; copy of balance sheet of the defendant's company for the year 2019 Ext.PW1/8; inspection receipt Ext.PW1/9 and; copy of order of NCLT Ext.PW1/10. There is no document Ext.PW1/1 on record. Though in the affidavit of PW1 he had relied upon Certificate of Incorporation of the plaintiff company as Ext.PW1/1, but it is not on judicial record.
8.1. It may also be mentioned here, that in support of the e-mail Ext.PW1/6, as exhibited by PW1, a certificate under Section 65B of the Evidence Act is though on record as available on page no. 15 & 16, but at the time of exhibiting Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 4 of 17 5 of e-mail the plaintiff did not exhibit this Certificate. Non- exhibiting of this Certificate by itself would not go against the plaintiff qua the e-mails / electronic evidence, as law mandates that at the time of proving of electronic evidence Certificate must be existing and available on record and it is not necessary that such a Certificate should have been exhibited also. Although, it would have been appropriate that the Certificate was exhibited by the plaintiff for the sake of convenience and clarity, but mere non-exhibiting of the same would not affect the proving of electronic evidence by the plaintiff.
9. On the other hand, the defendant examined DW1 namely Mr. Ajay Pal Singh and DW2 Amit Kumar Arvind Bhai Joshi.
9.1. Both those defendant's witnesses also tendered their evidence by way of affidavit. In their evidence the defendant's witnesses deposed beyond pleadings also, and also relied upon various documents which were not even relied upon with the Written Statement and regarding which the application under Order 11 Rule 1(10) CPC was dismissed by this Court on 15.12.2023. Yet those documents were mentioned as exhibit in the affidavit of DW1. Those documents are mentioned as Ext.DW1/1 to Ext.DW1/16 by DW1 in his affidavit in evidence and it was also exhibited by the Court Commissioner at the relevant time.
9.2. Since those documents Ext.DW1/1 to Ext.DW1/16 were never relied upon by the defendant along with WS and even the application of the defendant was dismissed by this Court under Order 11 Rule 1(10) CPC, therefore those documents have to be de-exhibited. Law is well settled that in a commercial suit neither a plaintiff nor a defendant can rely upon any document, without the Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 5 of 17 6 leave of the court, which they fail to rely upon with the plaint or the WS, respectively, as the case may be.
9.3. It may also be mentioned here that during cross-examination of PW1, these documents, which were not relied upon by the defendant with its WS, were put to PW1. Though a document which is not relied by the plaintiff or the defendant can be put to the witness of the opposite side in the cross-examination, but in this case Ld. Court Commissioner made a mistake in exhibiting those documents despite the fact that PW1 had denied those documents, except for one e-mail dated 11.07.2019, which is mentioned as Ext.DW/1. The plaintiff's witness denied all other 17 documents i.e. Ext.DW1/1 to Ext.DW1/17, yet all those documents were exhibited by the Court Commissioner. Once the witness of the opposite side had denied Ext.DW1/1 to Ext.DW1/17, none of those documents should have been exhibited by the Court Commissioner. Those documents were though validly put to the witness under cross-examination in terms of Order 11 Rule 1(7)(c) of CPC, as applicable to a commercial suit, but once PW1 had denied those documents they could not have been exhibited. They are therefore de-exhibited.
9.4. For the sake of clarity, it may be mentioned here that even Ext.DW1/1 to Ext.DW1/16 have been incorrectly described by DW1 in his affidavit in evidence. The correct description of those documents are, that Ext.DW1/1 is ledger of defendant qua third party for a particular period; Ext.DW1/2 is screenshot of ledger of defendant qua third party, which screen shot seems to have been taken from e-mail; Ext.DW1/3 is again copy of ledger maintained by the defendant qua third party; Ext.DW1/4 to Ext.DW1/11 are invoices and Form 402 qua third parties; Ext.DW1/12 to Ext.DW1/16 are print outs of the Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 6 of 17 7 screenshot of an e-mail and its 4 attachments despite the fact in the said e-mail 6 attachments are visible. The defendant also did not prove any Certificate under Section 65B of the Evidence Act qua Ext.DW1/1 to Ext.DW1/11. Though even without exhibiting such a Certificate the defendant could have discharged the burden by placing such a Certificate on record, but obviously that Certificate had to be not only in compliance of Sub-Section 2 & 4 of Section 65B of the Evidence Act, but also it had to be clearly descriptive of the electronic evidence. Though, one such Certificate attested on 11.08.2023 under Section 65B of the Evidence Act by Kartik Kumar Vasiyar is on record, but not only that witness has not been examined i.e. the executor of this Certificate, but also that Certificate is completely lacking in particulars. All that the said Certificate states is that the executor certifies that the e-mail attachments, bills, ledger account filed by the defendant before the Court are computer generated which were under the control of the defendant and there was no kind of alteration, deletion or modification in those print outs. The said Certificate does not meet necessary requirements of sub Section 2 & 4 of the Section 65B of the Evidence Act. Therefore, even if this Certificate had been exhibited, it would have not served any purpose in favour of the defendant.
9.5. In any case Ext.DW1/1 to Ext.DW1/16 cannot be relied upon by the defendant as those documents were not relied upon by it with WS and they were not allowed to be taken on record by this Court under order dated 15.12.2023. So far as Ext.DW1/17 is concerned, as exhibited in the cross-examination of PW1, again even this is a printout of screenshot of e-mail which too was denied by the witness PW1 and yet it was exhibited by the Ld. Court Commissioner. It could not have been exhibited in absence of admission and when denied by the Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 7 of 17 8 witness, but also it could not have been admitted in absence of any Certificate under Section 65B of the Evidence Act. Similarly, Ext.DW1/1, is though admitted by PW1 in his cross-examination dated 02.02.2024, but it is again print out of e-mail which in absence of any Certificate under Section 65B could not have been exhibited by the Court Commissioner and even if it is admitted by PW1 the mandatory provision of Section 65B could not have been overlooked. To be more specific law is well settled that electronic evidence has to be proved in terms of Section 65B of the earlier Indian Evidence Act and in terms of Section 63 of the BSA, and even if such an evidence is admitted by the opposite side, in absence of requisite Certificate the document cannot be treated to be proved.
10. Issue wise findings are as follows:
11. Issue no.1 "Whether the suit is barred by limitation? OP Defendant"
11.1. The suit has been filed on 07.12.2022. The advance payments were made between the period 19.12.2016 to 29.04.2017. The only two consignments supplied by the defendant to the plaintiff occurred on 06.02.2017. Neither in the plaint nor in the WS or in the evidence of the two sides, it is mentioned that within how much time period of receipt of advance payment, the goods were to be supplied by the defendant. Record reveals that after payment of first 3 amounts up to 20.01.2017, totaling Rs.10,00,000/-, the goods were supplied on 06.02.2017 for a total amount of Rs.5,63,138/-. Subsequently on 29.04.2017 further payment of Rs.5,43,400/- was made by the plaintiff. 11.2. As mentioned above, in the plaint itself the plaintiff has prayed benefit under Section 14 of the Limitation Act since the plaintiff pursued petition before the Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 8 of 17 9 NCLT. During pendency of the present suit the defendant filed an application under Order 7 Rule 11 CPC and vide order dated 10.07.2023 this Court gave benefit of the said provision of Limitation Act to the plaintiff, prima facie. 11.3. Plaintiff had filed application U/s 7 of the IBC on 19.11.2019 i.e. within the period of limitation. Subsequently, the said application was dismissed for non- prosecution on 10.11.2020. Thereafter, plaintiff preferred a restoration application for restoration of IBC petition, which was dismissed on 04.02.2021. Another application for recalling of the order dated 04.02.2021 was dismissed on 02.11.2021. Thereafter, plaintiff filed petition U/s 9 of the IBC on 16.02.2022, which was disposed of on 09.05.2022, and subsequently the appeal preferred by the plaintiff before NCLAT (National Company Law Administrative Tribunal) was dismissed on 29.07.2022. Thereafter the plaintiff applied for pre-litigation mediation in terms of Sec. 12A of the Commercial Courts' Act on 06.09.2022. The said pre-litigation mediation was reported as Non-Starter on 10.10.2022. Thereafter, this suit was filed on 07.12.2022. 11.4. Under Sec. 14 (1) of The Limitation Act, 1963, a plaintiff can seek exclusion of the period during which the plaintiff had been prosecuting with due diligence any other civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, in unable to entertain it. The plaintiff in a suit can seek exclusion of that period while computing the period of limitation for any suit.
11.5. In Dr. Samir Majumdar Versus Exxon Mobile Co. India (P) Ltd. and Another 2009 SCC OnLine Del 2701, it is held Section 14 of the Limitation Act is wide Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 9 of 17 10 in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction, but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression "other cause of like nature" is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called, but also other similar deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. The main factor which would influence the Court in extending the benefit of Section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in Section 14 means "exercise of due care and attention". In the context of Section 14 expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. 11.6. In the case of Indian Oil Corporation Ltd. Versus Micro Small and Medium Enterprises Facilitation Council and Others 2023 SCC OnLine Del 2746, and in Municipal Corporation of Delhi Versus Triweni Enterprises & Ors. 2023 SCC OnLine Del 2834, the benefit of Section 14 of the Limitation Act, 1963 was extended for the period commencing from the date when the application was filed before the MSEFC.
11.7. The plaintiff of this case pursued petition under the IBC, 2016 which he filed on 19.11.2019. The said proceedings were also civil in nature. U/s 7 of IBC a Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 10 of 17 11 financial creditor is allowed to initiate corporate insolvency resolution process. U/s 9 of IBC an application for initiation of corporate insolvency resolution process by operational creditor can be filed. However, mislead the plaintiff was or even if he was under a wrong legal advice in pursuing that petition, the plaintiff is entitled to get excluded the period which he pursued in that petition, as he pursued that petition with due diligence and in good faith. 11.8. Also, by virtue of judgment of Hon'ble Supreme Court in the case of In re;
Cognizance for Extension of Limitation, (2022) 3 SCC 117, the period between 15.03.2020 till 28.02.2022 stood excluded from the period of limitation. Regarding the issue, whether Para 5(I) or Para 5(III) of the case of In re; Cognizance (Supra) applies, Hon'ble Delhi High Court in the case of G4S Secure Solutions (India) Pvt. Limited Vs. Matrix Cellular (International) Services Limited in ARB P. 427/2024, order dated 02.04.2024, observed that in the case of M/s Arif Azim Co. Limited Vs. M/s Aptech Limited (2024 INSC 155) Hon'ble Supreme Court held in Para no. 84, that the effect of order passed by Hon'ble Supreme Court in the case of In Re Cognizance (Supra) would be that the entire period between 15.03.2020 to 28.02.2022 would stand excluded in counting the period of limitation and the balance period of limitation as on 15.03.2020 shall be available to a party w.e.f.
01.03.2022.
11.9. Giving benefit of Section 14 of the Limitation Act to the plaintiff, the suit has to be held to be within limitation.
11.10. Issue no.1 is accordingly decided in favour of the plaintiff and against the defendant.
Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 11 of 17 12
12. Issue no.2 & 3 "2. Whether the plaintiff is entitled to decree for a sum of Rs.19,65,465? OP Plaintiff
3. If the answer to the last mentioned issue is in affirmative, whether the plaintiff is entitled to any interest? If so, at what rate and for which period? OP Plaintiff"
12.1. As mentioned above, it is not in dispute that the plaintiff made advance payments to the defendant, that too through banking channels. It is also not in dispute that out of the total amount of ₹15,43,400/- received by the defendant, supply of goods worth ₹5,63,138/- was only made. It left a balance of ₹9,80,262/-.
12.2. In the WS, the defendant took a defence that the defendant was ever-ready to make delivery against the balance amount also, but it was the plaintiff who told the defendant not to supply the goods. Except that bare oral defence, nothing has been proved by the defendant as to sending any communication to the plaintiff that the defendant was ready to deliver goods against the balance amount also. No e-mail/ WhatsApp or any other communication has been proved by the defendant to support that defence. To whom and when the defendant communicated that the defendant was ready to send the material, is not even mentioned. Name of the person who refused to take the delivery or who postponed the delivery, is also not mentioned. When the defendant was aware of entire details of the plaintiff, as consignment under two invoices were sent to the plaintiff under Ext.PW1/5, there was no reason as to why the defendant could not have supplied articles at the same address for the remaining amount. There is absolutely no iota of evidence that the defendant ever sincerely made effort to supply goods against the balance of payment.
Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 12 of 17 13 12.3. Instead, during the pendency of the suit the defendant wanted to withdraw the admission made by the defendant in favour of the plaintiff, and the defendant preferred an application under Order 6 Rule 17 CPC taking a complete somersault and claiming that the balance amount was adjusted by the defendant towards supply of goods made to third parties at the behest of the plaintiff. The said application was dismissed by this Court on 15.12.2023. The effect of that order is that the original WS of the defendant has to stand and the subsequent amendments were disallowed. That order has attained finality as the defendant never challenged that order. By the same order the request of the defendant to place on record certain documents viz. invoices qua the third parties, e-mails, ledger accounts related to third parties, were also not permitted to be taken on record for the reasons mentioned therein. Even that part of the order of this Court under Order 11 Rule 1(10) attained finality as the defendant never challenged that order.
12.4. Despite dismissal of the request of the defendant to amend the WS seeking to incorporate the supply of material to third parties and despite dismissal of his request to place on record additional documents, the defendant in his evidence took up the same defence and also exhibited those documents in evidence, as mentioned above.
12.5. Anything beyond the pleadings of the defendant in the WS, contained in the affidavit in evidence, shall have to be ignored.
12.6. As mentioned above, Ext.DW1/1 to Ext.DW1/17 are also de-exhibited for the above-mentioned reasons.
12.7. Thus, the evidence of the two sides would make it clear that the receipt of advance from the plaintiff is an admitted fact; supply of goods for part of the Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 13 of 17 14 amount is an admitted fact and; the original defence of the defendant as to neither supply of the material nor return of the money by the defendant, is also established. This Court therefore has no hesitation in holding that the defendant was liable to supply material worth ₹9,80,262/- or return of that amount to the plaintiff. The defendant failed to do either.
12.8. Ext.PW1/8 is a balance sheet of the defendant itself. This document has been admitted by the defendant in its affidavit of admission/denial. This document is even admitted by the defendant's witness i.e. DW2. DW2 even admitted that the said balance sheet is signed by Director of the defendant company and that it reflects a balance of approximately ₹9 lakhs towards the plaintiff. Though the witness did try to clarify that statement claiming that the balance sheet was incomplete, but he also admitted that he cannot produce the balance sheet also and the claim of the witness that the balance amount was adjusted towards third parties' balance due, is not acceptable as there was no such pleading by the defendant in its WS. The sum and substance of the discussion is that the plaintiff succeeds in proving claim against the defendant.
12.9. The contention of defendant, that PW1 in his cross-examination expressed ignorance as to all the dates when he and the defendant got in touch etc., is not of any help to the defendant in view of the fact that payment was made by the plaintiff to the defendant through banking channels which are also admitted by the defendant and in view of the fact that the defendant also in a way admitted in WS the balance due.
12.10. It is argued on behalf of defendant that PW1 in his cross-examination admitted that he was in contact with Mr. Amit Joshi and one Mr. Vipin, telephonically and physically, and that he knew Amit Joshi since 2006. It is also claimed that Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 14 of 17 15 PW1 admitted that his mobile numbers are mentioned on the invoices of other third parties namely M/s Sigma Sales Corporation, M/s Shikhar Chand Pradeep Kumar Lumber, M/s Saptgiri Traders and, M/s Radhey Enterprises. It is also argued that PW1 deliberately concealed the information that the defendant had supplied goods to those firms and that the payment made by the plaintiff was against those supplies.
12.11. None of those arguments help the case of the defendant since the defendant had more than adequate opportunity to present his appropriate defence, but instead of presenting the appropriate defence as to supply of material to third parties, the defence which was taken was that the defendant was willing to supply the material, but the plaintiff did not allow it. The defendant did not examine anybody from those 4 firms to prove that any such supply was made by the defendant or that the payment made by the plaintiff was against those supplies. 12.12. Contention of defendant that DW2 orally stated that the plaintiff used to direct the defendant to supply materials to third parties, is absolutely against the defence raised in the WS. Therefore, it cannot help the defendant. 12.13. Similarly, the contention of defendant that notice was not sent or proved before institution of suit, is immaterial, as there is no such legal requirement that a legal notice must be sent before institution of suit for recovery. 12.14. Accordingly, the plaintiff is entitled to recovery of ₹9,80,262/- towards the principal amount.
12.15. The question next arises is, as to the rate of interest. On the above-mentioned amount plaintiff has calculated interest @18% per annum. It is not even the claim of the plaintiff that at the time of making advance payments any such Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 15 of 17 16 interest was agreed upon. Indeed, the present transaction between the parties was a commercial transaction, but the said rate is exorbitant. 12.16. Under section 34 of CPC, in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, and with further interest as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. Where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
12.17. In this regard, one may place reliance upon the case of Cimmco Limited Versus Pramod Krishna Agrawal 2019 SCC OnLine Del 7289, wherein it is held in para 3 that Hon'ble Supreme Court has now mandated that lower rates of interest be granted and therefore the pre-suit and also the pendente lite and future interest is liable to be reduced by the Court.
12.18. Latest Reserve Bank of India Lending and Deposit Rates of Scheduled Commercial Banks (SCBs) qua weighted average lending rate (WALR) on outstanding Rupee loans of SCBs, is 9.91 per cent.
12.19. Having considered the entire facts and circumstances of this case, in the considered opinion of this Court interest of justice would be met if the plaintiff Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 16 of 17 17 is awarded simple interest @9% per annum on Rs.9,80,262/- from 01.05.2017 till the date of realization.
12.20. Issue no.2 & 3 are accordingly decided in favour of the plaintiff and against the defendant.
13. Issue no.4 " Relief"
13.1. Accordingly, the suit of the plaintiff is decreed for a sum of ₹9,80,262/- (₹ Nine Lakh Eighty Thousand Two Hundred Sixty-Two) with Simple interest @ 9% per annum from 01.05.2017 till the date of realization. Plaintiff shall also be entitled to the cost of the suit. Decree sheet be prepared accordingly. File be consigned to the record room.
13.2. A copy of the judgment be supplied to the plaintiff as well as the defendant through electronic modes in compliance of Order 20 Rule 1(1) of CPC. Announced in the open Court on 21st September 2024 DIG Digitally signed by DIG VINAY SINGH VINAY Date:
SINGH 2024.09.21 10:47:38 +0530 (DIG VINAY SINGH) District Judge (Commercial Court)-03 West / Tis Hazari / Delhi (m) Judgment dated 21.09.2024; CNR NO. DLWT01-011707-2022; CS (COMM) No.966/2022; M/S Nikunj Woods Private Limited Vs. M/S Aakruti Boardlam Private Limited Page 17 of 17