Delhi District Court
Mr. Neeraj Gupta vs M/S Era Infrastructure Ltd on 7 June, 2016
1
In the court of Ms. Sonam Singh, Civil Judge-05, Central
District, Tis Hazari, courts Delhi
Suit No. 1056/14
Unique ID No. 02401C0618532014
Mr. Neeraj Gupta, Prop.
M/S Gupta Electrical Corporation,
1787, Bhagirath Palace,
Chandni Chowk,
Delhi-110006 .........Plaintiff
Versus
M/S ERA Infrastructure Ltd.
B-24, Sector-3, Near HCL,
Noida (U.P.)
Through Director/Authorized signatory ........Defendant
Date of institution: 04.12.2014
Date of final decision: 07.06.2016
Ex-parte judgment:
1.Vide this judgment, I shall dispose of the present suit filed for the recovery of Rs. 1,68,773.40/- along with pendente lite and future Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 2 interest @ 18% per annum from the date of institution of the suit till realization of the decretal amount.
Plaintiff's version as per the Plaint
2. Plaintiff has averred in his plaint the following submissions:
a) It is averred that Plaintiff is proprietor of the firm,namely, M/s Gupta Electrical Corporation and deals in the business of PVC wire cables and all types of electrical goods. Further, he is carrying on the business at the aforesaid address.
b) It is pleaded that Defendant had business dealings with the Plaintiff since long and in the course of said business dealings, the Defendant have been purchasing goods on credit, from the Plaintiff from time to time but the Defendant never made payment in accordance with the bills issued in that respect, consequently the Plaintiff had to open a running account in his books of accounts. As per the revelations thereof, a huge sum has been found outstanding against the Defendant, after making adjustments of all the part payments made by the Defendant. The said outstanding amount has not been paid, despite repeated requests of the representatives of the Plaintiff. Due to the aforesaid conduct of the Defendant, the Plaintiff has become entitled to claim the said outstanding amount together with interest accrued thereon @ 18% per annum as per custom, market usages as well as terms of the bills issued to the Defendant in that respect.
Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 3
c) It is pleaded that in discharge of his admitted liability, the Defendant issued the following cheques in favour of the Plaintiff as part payment:
i) Cheque No. 005771 dated 15.04.2014 for Rs. 35,000/-
ii) Cheque No. 005784 dated 15.05.2014 for Rs. 35,000/-
iii) Cheque No. 005826 dated 15.06.2014 for Rs. 35,000/-
All drawn on Union Bank, Greater Noida-201306.
d) Further, it is averred that the said cheques were dishonored on their presentation by the bankers of the Defendant, with remarks "ACCOUNT BLOCKED SITUATION COVERED" in 21-25 returning memo dated 21.06.2014. The receipt was served upon the Defendant, who telephonically promised to make the payment thereof very soon and requested not to initiate any proceedings u/s 138 of NI Act. Further, it is averred that the Plaintiff believed the version of the Defendant as correct and in good faith did not initiate any action but the Defendant breached his promise and did not pay any amount to the Plaintiff as a result thereof, prescribed period for initiating proceedings u/s 138 of NI Act stood lapsed. It is pertinent to add that the Defendant had also issued other cheques but the same also met with the same fate.
e) It is pleaded that the Defendant is withholding the legitimate Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 4 amount of the Plaintiff without any reason or rhyme and as such the Defendant is liable to pay the same along with interest @ 18% per annum as per market custom, trade usages and the same is now a days prevalent in the business community. However, the interest is being claimed from the date of institution of the suit.
f) It is averred that the Plaintiff issued a legal notice of demand dated 07.10.2014 calling upon the Defendant to pay the aforesaid outstanding amount but the Defendant failed to pay the said amount in spite of service of the said notice.
g) That from his aforesaid conduct it is quite clear that the Defendant have no intentions to pay the aforesaid legitimate amount of the Plaintiff and in forced circumstances, the Plaintiff is constrained to file the present suit.
3. It is pertinent to observe that despite wait and repeated calls, none had appeared on behalf of Defendant and suit was hereby proceeded ex-parte against the Defendant vide order dated 07.05.2016.
4. Sh. Ram Prakash Sharma, who is the Manager of the Plaintiff in support of his case has placed on record affidavit in evidence Ex PW-1/A and relied upon the following documents:
Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 5 Sl. Exhibit/Mark Nature of Documents No.
1. Ex PW-1/1 Special Power of Attorney in favour of Sh. Ram Prakash Sharma , who is the Manager of the Plaintiff
2. Ex. PW-1/2 Copy of the Statement of Account
3. Ex PW-1/2A Certificate u/s 65 B of Indian Evidence Act
4. Ex. PW-1/3 Copy of legal notice dated 07.10.2014
5. Ex. PW-1/4 Postal receipt
6. Mark A Photocopies of dishonored cheques
7. Ex.PW-1/5(Colly.) Bills/invoices
8. Mark C Copy of purchase order
5. The said witness was duly examined in chief. Thereafter, Plaintiff closed his evidence, vide separate statement.
6. I have heard Ld. Counsel for the plaintiff and perused the case file carefully.
7. The only point of determination in the present suit is whether the plaintiff is entitled to recover sum of Rs. 1,68,773.40/- along with pendente lite and future interest @ 18% per annum from the date of institution of the suit till realization of the decretal amount.
8. The Special Power of Attorney Ex PW-1/1 in favour of Sh.
Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 6 Ram Prakash Sharma, who is the Manager of the Plaintiff stands proved, wherein, Sh. Ram Prakash Sharma has been authorized to institute and contest the present on behalf of the Plaintiff. The invoices Ex. PW-1/5 (Colly) which are copies of the bill raised to the Defendant also show that the Plaintiff has provided goods to the Defendant.
9. The Plaintiff in order to prove his case has placed on record the Statement of Account Ex. PW-1/2. As per the case of the Plaintiff, the suit of the Plaintiff is based on the Statement of Account Ex. PW-1/2. Plaintiff's witness, PW1 has stated in his examination in chief that the Plaintiff had been duly maintaining a running account of the Defendant in its books of account which are being duly maintained in the ordinary course of business. He has further stated that all transactions with the Defendant were recorded in the statement of account. It is the case of the Plaintiff that the said statement shows outstanding balance of amount of Rs. 1,68,773.40/-, which the Defendant is liable to pay.Plaintiff has also placed on record the certificate under Section 65 B of IEA, Ex. PW-1/2A , which is mandatory to be placed, in case a witness relies on an electronically generated document, which in the present case, is the Statement of Account. Further, Mark A are the Photocopies of dishonored cheques, which were issued by the Defendant in favour of the Plaintiff
10. It is to be noted that the testimony of Plaintiff's witness PW1 has gone unrebutted. No written statement has been brought on Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 7 record by the Defendant in this case. The documents placed on record by the Plaintiff have also been duly proved. There is nothing on record either to disbelieve the testimony of the Plaintiff's witness or to negate the documents placed on record.
11. Further Ex. PW-1/ legal notice dated 07.10.2014 was also sent and it was also not replied by the Defendant despite service (with service being presumed under section 27 of the General Clauses Act). The suit had been filed in the period of limitation.
12. The plaintiff has been able to prove its case as far as the outstanding amount of Rs. 1,68,773.40/- as reflected in the statement of account is concerned. The Plaintiff has also claimed pendente and future interest @18% per annum but nothing has been brought on record to show that there was any agreement between the parties qua, interest @ 18 % per annum which was payable to the Plaintiff in case of default of the amount claimed in the present suit . In the opinion of the court, interest of justice shall be met in case the Defendant is ordered to pay simple interest @ 12 % per annum from the date of institution of the suit till realization, as the parties were in commercial relations.
13. Consequent to the above discussion, there is merit in the case of the plaintiff and the suit is decreed with costs for an amount of Rs. 1,68,773.40/- against the defendant along with interest@12 % p.a. from the date of institution of suit till realization of the same.
Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd 8
14. Plaintiff is also entitled to costs of the suit. It is ordered accordingly. Decree sheet be drawn accordingly. File be consigned to record room.
Pronounced in the open Court on 07.06.2016 (Sonam Singh) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 8 pages and each page is signed by me.
Suit No. 1056/14 Neeraj Gupta Vs. ERA Infrastructure Ltd