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Delhi District Court

Virender Kumar vs Kamboj Export on 21 February, 2025

   IN THE COURT OF SH. KISHOR KUMAR, DISTRICT
 JUDGE-04, NORTH DISTRICT, ROHINI COURTS, DELHI.

                      CS No. 722/2018
                CNR No: DLNT01-008464-2018

Virender Kumar
Proprietor
Hi-Tech Packaging,
N-30, Sector-5, DSIDC Industrial Area,
Baana, Delhi-110039
                                                  .....Plaintiff

                           VERSUS

M/s Kamboj Export
Bajaj Market, Main Road,
Indri, Karnal-132041,
Haryana
                                                .......Defendant
Date of Institution : 13.09.2018
Date of Decision : 21.02.2025
Final Decision      : Suit Decreed


                   JUDGMENT (EX PARTE)

1. The plaintiff has filed the present suit for recovery of Rs.43,13,183/- along with pendente lite and future interest stating inter alia that plaintiff is engaged in manufacturing of printed plastics, laminated purches and fabric bag etc. The defendant approached the plaintiff for purchase of above products on credit. The plaintiff had been selling these products on invoice along with the sales tax.

2. It is further averred that the plaintiff has been maintaining a running account in its books and ledger wherein the credit and debit entries were being entered. The payments which were being received from time to time from the defendant, used to be adjusted against the outstanding in the ledger and the defendant was being informed about the outstanding or the balance amount payable to the plaintiff. The defendant is liable to pay an amount of Rs.28,13,755 including the excise duty and sales tax being the principal amount against the value of the material sold to defendant. The defendant had also confirmed and acknowledged the outstanding amount on 11th July 2016 through email confirming their liability.

3. It is further averred that plaintiff has been demanding from defendant time and again, the payable dues, but the defendant has failed to pay any heed to the demand of the plaintiff despite sending legal notice dated 07.08.2018. The defendant is liable to pay to the plaintiff principal amount of Rs.28,13,755/- and interest @ 18% per annum i.e. Rs.15,19,428/- thereby totalling to Rs.43,33,183/-. Hence, the present suit.

4. Summons were served upon the defendant by way of publication, however, despite service defendant failed to appear CS DJ No. 722/2018 Page No. 3 of 6 or file written statement and accordingly, vide order dated 24.04.2024, the defendant was proceeded against ex parte.

5. In order to prove his case, plaintiff/Sh. Virender Kumar examined himself and tendered his evidence by way of affidavit Ex. PW1/1 and relied upon the documents i.e. copy of statement of account Ex. PW1/1, Certificate u/s 65B of Indian Evidence Act Ex. PW1/2, Copies of Bill and builty Ex. PW1/3 to Ex. PW1/39, Copy of emails Ex. PW1/40, Copy of legal notice dated 07.08.2018 along with postal receipts, tracking report and returned envelope Ex. PW1/41 to Ex. PW1/44.

6. I have heard ex-parte final arguments advanced by Ld. counsel for the plaintiff and have carefully gone through the material on record.

7. In C.S. Rowjee v. State of Andhra Pradesh, 1964 AIR 962 it was held by the Apex Court that facts in the affidavit uncontroverted by opposite party can be deemed as admitted to rely. Further, in Sushma Berlia & Ors. vs Kamal Kumar & Ors., 2014 SCC OnLine Del it was observed by Hon'ble Delhi High Court that Testimony of PW-1 (Bharat Bhushan) has remained unchallenged and unrebutted. Adverse inference is to be drawn CS DJ No. 722/2018 Page No. 4 of 6 against the defendants for not contesting the suit on adjourned date and remaining ex- parte. There are no sound reasons to disbelieve the positive uncontroverted testimony of PW-1.

8. In the present case, as the defendant remained ex-parte, the testimony of PW1 remained unrebutted. As such this court has no reason to not believe the case of the plaintiff.

9. On a bare perusal of evidence of PW-1, particularly in view of the documents filed on record i.e. Ex. PW1/1 the statement of account of defendant maintained by the plaintiff which shows the debit balance of Rs.28,13,755/- against the defendant as on 14.09.2015. Said statement of account is duly supported with certificate under section 65B of Indian Evidence Act Ex. PW1/2. The plaintiff has also proved on record various bills raised by him against the defendant from time to time for supply of material. Since the defendant did not appear in the present case and chose to remain ex parte, the evidence and documents produced on behalf of the plaintiff remained unchallenged. Consequently, the plaintiff is held entitled for the relief claimed. However, the plaintiff has claimed the interest @ 18% per annum on the principal outstanding amount, which is exorbitant one and in the considered opinion of the Court, interest @ 6% per annum would meet the ends of justice.

Relief

10. In the aforesaid facts and circumstances of the case, the suit of the plaintiff is decreed for a sum of Rs.28,13,755/- along with interest @ 6% per annum from 14.09.2015 till realization of decretal amount.

11. The plaintiff is entitled to recover costs of the suit from the defendant.

12. Decree sheet shall be prepared accordingly.

13. File be consigned to Record Room after due compliance.

                                    KISHOR             KUMAR

                                    KUMAR              Date:
                                                       2025.02.21
Announced in open                                      16:41:20 +0530
Court on 21.02.2025                                (Kishor Kumar)
                                           DJ-04, North, Rohini Courts,
                                                   Delhi/21.02.2025