Delhi District Court
M/S Milhard Sales Pvt. Limited vs M/S. A.S. Traders on 18 November, 2010
M/s Milhard Sales Private Limited 1 M/s A.S.
Traders
IN THE COURT OF Ms. AMBIKA SINGH
CIVIL JUDGE : CENTRAL-03 : THC : DELHI.
SUIT No. 1421/2006
IN THE MATTER OF :
M/s Milhard Sales Pvt. Limited.
Through its Director,
Having its registered office at :
4772, Hauz Kazi ( Inside Ajmeri Gate ),
Delhi - 110006. .......................Plaintiff
Versus
M/s. A.S. Traders,
Through its Prop/Principal Officer,
37, K.M. Stone,
Delhi Jaipur Highway,
Gurgaon, Haryana. ..........................Defendant
Suit for recovery of Rs. 21,886/-
DATE OF INSTITUTION : 21.12.2006.
DATE OF DECISION : 18.11.2010.
EX-PARTE JUDGMENT :
1.Vide this judgment, I shall decide the suit for recovery of the amount of Rs. 21,886/- filed by the plaintiff against the M/s Milhard Sales Private Limited 2 M/s A.S. Traders defendant. Perusal of the record shows that plaintiff has filed the present suit under Order 37 CPC but plaintiff has not treated the same as a suit filed under Order 37 CPC, therefore, the Court shall treat the present suit filed as a simple recovery suit.
2. Essential facts for the disposal of the present suit as per the plaint are that the plaintiff is a Private Limited Company registered under the Indian Companies Act and having its registered office at 4772, Hauz Qazi, Delhi -110006 and deals in manufacturing and trading of tools and equipments and also deals in import and export through code No.0591047977 and having the specialization in Engineering precision, measuring instruments, metal working tools and workshop equipments. The plaintiff is the authorized distributor of MITUTOYO precision tools.
3. It is the case of plaintiff that defendant is having the business dealings with the plaintiff company since long time. The defendant company through its agent/representative/director used to place order for supply of various equipments/goods on the plaintiff either personally/ telephonically or by sending the purchase order on C.O.D basis/purchase order. It is averred that all the goods were used to be lifted by the defendant company through its M/s Milhard Sales Private Limited 3 M/s A.S. Traders representative from the plaintiff or some time the goods were delivered through transport by the representative of the defendant and the same were duly received by the representative of plaintiff. The defendant used to purchase the goods on credit basis as well as on cash basis and sometime used to make the part payment against bills issued by the plaintiff as per the normal course of business. The plaintiff maintained a current, running and open account of all the purchases made by the defendant, payments made to the plaintiff and the balance amount outstanding from time to time and payable by the defendant. The defendant lastly purchased the goods vide bill No.58140 and issued cheque bearing no.325557 for Rs.7540/-, 317744 for Rs.11,752/- and 317742 for Rs.2494.40 paise against the outstanding balance towards the plaintiff. It is further alleged that the said cheques got dishonoured and thereafter, the defendant stopped transaction with the plaintiff. The said cheques were issued by the defendant against the part payment outstanding amount towards its debt. The plaintiff apprised the said factum of dishonour of cheques to the defendant but the defendant failed to clear the dues of the plaintiff. A legal notice dated 10.02.2005 was duly served upon the defendant who in-spite of receipt of the legal notice has failed to make the payment to the M/s Milhard Sales Private Limited 4 M/s A.S. Traders plaintiff. Despite legal notice dated 10.02.2005, repeated requests and reminders, the defendant did not pay any heed to the same. Hence, the present suit is filed by the plaintiff.
4. In the present case the defendant has been served by way of publication. But defendant did not to appear despite service through publication in the English Daily Newspaper ''The Statesmen'' dated 16.07.2009, and he was accordingly proceeded ex-parte on 18.07.2009.
5. Ex-parte evidence was led by the plaintiff company in which he examined PW-1 Shri Dhan Raj Girdhar, Authorized Representative, in support of his case and tendered some documents in their favour. EX. PW-1/1 is the copy of the resolution dated 23.10.2006. EX. PW-1/2 office/carbon copy of the bill No. 58140 dated 11.06.2003. EX. PW-1/3 office/carbon copy of the bill No.57985 dated 07.06.2003. EX. PW-1/4 is the Cheque No.317742 dated 08.07.2003 along with return memo, cheque No.325557 dated 03.07.2003 & cheque No.317744 dated 26.06.2003 along with return memo ( Collectively ). EX. PW-1/5 is the computer generated copy of statement of account in two pages. EX. PW-1/6 is the returned back envelope with AD card, office copy of legal notice dated M/s Milhard Sales Private Limited 5 M/s A.S. Traders 10.02.2005 & postal receipts ( Collectively ).
6. Ex-parte final arguments were heard on 01.11.2010.
7. I have already heard the arguments and carefully gone through the record. There was an outstanding amount of Rs. 21,886/- against the defendant for the financial year ending 2004. The legal notice of demand was served on the defendant on 10.02.2005 and the present suit has been filed on 21.12.2006. The suit is, therefore, within the limitation period. The negotiations for supplying and placing the order were also made at Delhi. The defendant placed the order at the office/shop of the plaintiff at Delhi. The entire dealings were entered into between the parties at Delhi and, therefore, this Court has the territorial jurisdiction to entertain and decide the present suit. The present suit has been filed by Shri Dhan Raj Singh, who is working with the plaintiff company and well aware of the facts of the case. He has been authorized to file, sign, verify and pursue the present case against the defendant vide resolution dated 23.10.2006 passed by the Board of Directors of the plaintiff company.
The Court is convinced that the plaintiff has successfully proved its case. The testimonies of the PW-1 goes unrebutted and M/s Milhard Sales Private Limited 6 M/s A.S. Traders unchallenged. The Cheque No. 317742 dated 08.07.2003 along with return memo, cheque No.325557 dated 03.07.2003, cheque No. 317744 dated 26.06.2003 & statement of bank account of the plaintiff's firm have been duly proved by the PW-1 on record, as per law. In the facts and circumstances of the case, the Court is convinced that defendant did not make any payments of cheques. Plaintiff has proved his case beyond reasonable doubt.
8. In view of the above discussion, the suit is accordingly decreed in favour of plaintiff and against the defendant for an amount of Rs.21,886 ( Rupees Twenty One Thousand Eight Hundred Eighty Six only). The plaintiff has claimed pendentelite and future interest @ 24% per annum from the defendant but the Court is not inclined to grant pendentelite and future interest @ 24% per annum to the plaintiff . Pendentelite and future interest @ 12% per annum is, therefore, granted in favour of plaintiff and against the defendant on the decreetal amount from the date of filing of the suit till its realization along with the cost of the suit.
9. Decree Sheet be prepared accordingly.
10. File be consigned to Record Room after necessary compliance.
M/s Milhard Sales Private Limited 7 M/s A.S.
Traders
Announced in Open Court ( AMBIKA SINGH )
th
On 18 November, 2010. CJ : Central-03 : THC : Delhi.