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Delhi District Court

M/S Kala Sales Pvt. Ltd vs M/S Scorpios Apparels Pvt. Ltd on 21 January, 2016

    IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
          JUDGE­09: TIS HAZARI COURTS : DELHI

Suit No. 437/14 (Old Suit No. 69/2013)
Unique Case ID No. 02401C0118552013


M/s Kala Sales Pvt. Ltd. 
110/1, B.D. Estate, Timarpur, Delhi,
Through its Director Sh. Kunj Bihari Gupta.  ........... Plaintiff. 


                                       VERSUS 


M/s Scorpios Apparels Pvt. Ltd. 
16/1, Mathura Road, 
Faridabad, Haryana,
Through its Directors.                                 ......... Defendant. 


Date of institution of the suit            :     13.03.2013
Date on which order was reserved           :     07.01.2016
Date of decision                           :     21.01.2016


                SUIT FOR RECOVERY OF RS. 3,32,000/­

JUDGMENT

The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint, are that the plaintiff is a Private Limited Company duly incorporated under the provisions of the Companies Act, 1958 having its registered office at 110/1, B.D. Estate, Timarpur, Delhi. It has been further stated that Sh. Kunj Bihari Gupta is Suit No. 437/14 (Old Suit No. 69/13) Page No. 1/22 the Director and the Principal Officer of the plaintiff company, who has been authorized by the Board of Directors of the plaintiff company to institute the present suit on behalf of the plaintiff company by virtue of the Resolution dated 10.03.2001 passed by the Board of Directors of the plaintiff company. It has been further stated that the plaintiff company is the manufacturer and supplier of velvet, corduroyed and export fabrics for the past so many years and is an reputed establishment in this field. It has been further stated that the defendant company is also a Private Limited Company having its factory premises at 16/1, Mathura Road, Faridabad, Haryana. It has been further stated that the defendant company approached the plaintiff company and placed various orders for the purchase/ supply of velvet, which was duly supplied by the plaintiff company as per description and quantity ordered by the defendant company. It has been further stated that at the time of the supply of the ordered material, invoices were raised by the plaintiff company, which were duly acknowledged by the defendant company. It has been further stated that as per the instructions given by the plaintiff company, all the amounts were payable by the defendant company to the plaintiff company at Delhi only. It has been further stated that on many occasions, after the supply of the desired fabric, the defendant company returned the desired fabrics supplied to the defendant company and again supply was made by the plaintiff company as per the requirement of the defendant company. It has been further stated that the fabric, which was returned by the defendant company, was duly acknowledged by the plaintiff company and the amount of the returned fabric was duly debited in the account of the plaintiff company. It has been further stated that the Suit No. 437/14 (Old Suit No. 69/13) Page No. 2/22 defendant used to make the payment against the goods supplied, which was duly accounted for by the plaintiff company in the books of accounts being maintained by the plaintiff company in the regular course of its business. The plaintiff has alleged that however, the defendant was irregular in making the payments. It has been further stated that in the month of October 2012, the representative of the defendant company namely Ms. Punita and Mr. Kachroo called the plaintiff company to supply the goods. It has been further stated that Ms. Punita and Mr. Kachroo on behalf of the defendant company promised to release the balance payment of the plaintiff after returning of their Managing Director from abroad. The plaintiff has further stated that no payment was made by the defendant company after 17th October, 2012. It has been further stated that as per books of accounts being maintained by the plaintiff company, an amount of Rs. 2,77,867.40/­ was outstanding on account of the principal amount from the defendant company on the date of the filing of the present suit. It has been further stated that the defendant is also liable to pay the interest @ 18% per annum on the abovesaid outstanding principal amount. It has been further stated that the plaintiff issued a legal notice dated 23.12.2012 to the defendant company, but, the defendant instead of complying with the legal notice of the plaintiff sent a false and frivolous reply dated 25.01.2013 and hence, the present suit.

2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for the amount of Rs. 3,32,000/­ alongwith interest @ 18% per annum from the date of the institution of the present suit till the date of the realization of the Suit No. 437/14 (Old Suit No. 69/13) Page No. 3/22 decreetal amount. The plaintiff has also prayed for the costs of the suit.

3. Written statement­cum­counterclaim has been filed on record by the defendant stating therein that the plaintiff has not approached the Court with clean hands. The defendant has alleged that the plaintiff was the nominated vendor of the Buying Agent of the defendant namely M/s Li & Fung (India) Pvt. Ltd., 243, S.P. Inforcity, Tower B, 7th Floor, Udyog Vihar Phase I, Gurgaon (HR). It has been further stated that despite receipt of the advance payment of Rs. 5,00,000/­ from the defendant against the work order, the plaintiff failed to supply the material within the stipulated period of time. It has been further stated that the present suit is without any cause of action because the work performance of the plaintiff was not upto the mark. The defendant has alleged that there was an inordinate delay on the part of the plaintiff for supplying the fabric to the defendant. It has been further stated that the plaintiff asked the defendant to increase the rate of fabric @ Rs. 15/­ per meter arbitrarily and due to compulsion of sending shipment to the buyer in time, the defendant agreed to increase the rate. It has been further stated that even after receipt of the increased amount for the fabric, the plaintiff failed to complete the order in time and the defendant had to incur heavy losses to the tune of Rs. 6,06,896/­ as the defendant had to send the goods by way of Courier instead of ship. It has been further stated that the defendant had also incurred losses to the tune of Rs. 82,996.50/­ because of left over linings and trims as the buyer of the defendant reduced the order quantity from 2710 pieces to 2036 pieces due to non supply of goods in time. It has been further stated that a debit note for Rs. 6,06,896/­ was issued to the plaintiff on this ground alone Suit No. 437/14 (Old Suit No. 69/13) Page No. 4/22 and the same was acknowledged by the plaintiff. It has been further stated that the defendant also issued debit notes for a sum of Rs. 7,635/­ and Rs. 41,834/­ amounting to a total sum of Rs. 49,469/­ and as such, the defendant is entitled to receive a total sum of Rs. 3,31,386/­ from the plaintiff. It has been further stated that the abovesaid two debit notes were entered for a sum of Rs. 47,112/­ by the plaintiff later on and as such, the defendant has placed the deficit amount of Rs. 2,357/­ in suspense account and accordingly, the defendant is claiming a sum of Rs. 3,29,029/­ from the plaintiff by way of the counterclaim. It has been further stated that this Court has no jurisdiction to entertain and try the present suit as neither the place of business nor the residence of the defendant is within the territorial jurisdiction of this Court. It has been further stated that Sh. Kunj Bihari Gupta is not the authorized person to sign and institute the present suit on behalf of the plaintiff. The defendant has denied that the payment was payable at Delhi to the plaintiff. The defendant has taken the stand that no transaction took place in Delhi as the Purchase Orders were placed at Faridabad and the supply was also made at Faridabad. It has been further stated that the fabric was returned by the defendant company to the plaintiff company only in case when the fabric supplied by the plaintiff was not of the desired quality and specification as ordered by the defendant. It has been further stated that the plaintiff assured the defendant about the quality of the goods. It has been further stated that the plaintiff also assured that the goods to be supplied were to be in accordance with the specification of the defendant. However, the defendant has alleged that on all the occasions, the fabric supplied to the defendant was at a belated stage and the same was not of Suit No. 437/14 (Old Suit No. 69/13) Page No. 5/22 the desired quality and as per the specifications. The defendant has further alleged that the plaintiff had not entered the debit notes issued by the defendant correctly. The defendant has further alleged that the statement of accounts filed by the plaintiff contains several inconsistent entries and the transactions in between the plaintiff and the defendant have not been truly shown in the statement of accounts filed on record by the plaintiff. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.

4. In the counterclaim, the defendant has prayed that the plaintiff be directed to pay a sum of Rs. 3,29,029/­ alongwith the pendente­lite and future interest @ 18% per annum from the date of the filing of the present counterclaim till the date of the realization of the decreetal amount alongwith the costs of the counterclaim.

5. Rejoinder to the written statement­cum­counterclaim has been filed on record by the plaintiff denying the contents of the written statement and that of the counterclaim and reaffirming the stand as taken by the plaintiff in the plaint.

6. From the pleadings of the parties, the following issues were framed by this Court vide orders dated 24.07.2014 :

1) Whether the goods were not delivered by the plaintiff to the defendant at the scheduled time?OPD

2) Whether this Court has no territorial jurisdiction to entertain and try the present suit?OPD

3) Whether the plaintiff is entitled for recovery of Rs.

3,32,000/­ alongwith the interest as prayed for by the plaintiff in the plaint?OPP Suit No. 437/14 (Old Suit No. 69/13) Page No. 6/22

4) Whether the defendant is entitled for a decree for an amount of Rs. 3,29,029/­ alongwith the interest as prayed for by the defendant in the counterclaim?OPD

5) Relief.

EVIDENCE :

7. The plaintiff company has examined its Director Sh. Kunj Bihari Gupta as PW1 and in his evidence by way of affidavit Ex. P1, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the copy of certificate of Incorporation of the plaintiff company as Ex. PW1/1, certified copy of the Resolution dated 10.03.2001 as Ex. PW1/2, copy of the purchase orders as Ex. PW1/3, copy of invoices as Ex. PW1/4, certified copy of the statement of account as Ex. PW1/5, copy of the legal notice dated 23.12.2012 as Ex. PW1/6, copy of the reply dated 25.01.2013 as Ex. PW1/7, copy of the rejoinder dated 16.02.2013 alongwith postal receipt as Ex. PW1/8.

8. In the cross examination, PW1 has admitted it to be correct that vide Minutes of Meeting dated 10.03.2001, power to institute a suit has not been given to him. By way of volunteer, PW1 states that to his knowledge, he has got all the powers. PW1 has admitted it to be correct that the Minutes of Meeting dated 10.03.2001 was signed by him on 16.06.2001, when the next meeting was held. PW1 has admitted it to be correct that the said Minutes of Meeting was signed by him only. PW1 has admitted it to be correct that Ex. PW1/2 is a photocopy document, which is only attested by him in the capacity of a Director. PW1 has Suit No. 437/14 (Old Suit No. 69/13) Page No. 7/22 admitted it to be correct that Ex. PW1/2 is not the true copy of the Resolution. PW1 has admitted it to be correct that Ex. PW1/2 does not authorize him to institute any suit. PW1 has admitted it to be correct that Ex. PW1/2 is an undated document and the same does not mention any date regarding the issuance of the same. PW1 has admitted it to be correct that on 10.03.2001, he occupied the chair and he was the Chairman, when the said resolution was passed, while in Ex. PW1/2 the Chairman has been shown somebody else. PW1 has admitted it to be correct that he attested Ex. PW1/2 twice. PW1 has admitted it to be correct that Ex. PW1/1 does not bear the registered office address of the plaintiff. PW1 has admitted it to be correct that Ex. PW1/2 also does not bear any address of the plaintiff. PW1 has admitted it to be correct that no document (Ex. PW1/1 to Ex. PW1/8) mentioned the address i.e. 110/1, B.D. Estate, Timarpur, Delhi as his registered office address or his address at any point whatsoever. PW1 has admitted it to be correct that his entire business processes were being run from his factory at F­27/3, Okhla Industrial Area, Phase­II, New Delhi­110020. PW1 has admitted it to be correct that whatever material was dispatched to the defendant by the plaintiff, the same was sent from the above address at F­27/3, Okhla Industrial Area, Phase­II, New Delhi­110020. PW1 has admitted it to be correct that 110/1, B.D. Estate, Timarpur, Delhi is his residential address and the same is not used for any business dealing. PW1 has admitted it to be correct that Ex. PW1/3 is a computerized document and the same is not accompanied by a requisite declaration as per Section 65B of the Indian Evidence Act. PW1 has further stated that Ex. PW1/3 was sent by hand to his Okhla office by the defendant in its present form. PW1 has Suit No. 437/14 (Old Suit No. 69/13) Page No. 8/22 admitted it to be correct that Ex. PW1/4 (colly) were issued from his Okhla address and the same were sent to the defendant either at Okhla or at Faridabad. PW1 has admitted it to be correct that the statement of accounts Ex. PW1/5 is a computerized print out and his Accountant namely Sh. Vikram Singh used to maintain the same. PW1 has denied the suggestion that Ex. PW1/5 bears incorrect entries and the same is an incomplete document. PW1 has stated that the entry mentioned in page 1 of Ex. PW1/5 at point A is an entry relating to receipt of payment in the account of the plaintiff and the same is not related to payment details from the defendant. PW1 has denied the suggestion that Ex. PW1/5 is not the statement of accounts maintained in respect of the defendant, but the same has been created only to file the present suit. PW1 has admitted it to be correct that Ex. PW1/5 is neither attested nor audited nor certified by any Chartered Accountant. PW1 has admitted it to be correct that Ex. PW1/5 is the statement of accounts containing entries starting from 23.02.2012 till 19.11.2012. PW1 has admitted it to be correct that during the course of business transactions, several debit notes were issued by the defendant. PW1 has denied the suggestion that the defendant had issued the debit notes bearing no. 218, 219 and 220 dated 23.11.2012, debit note no. 227 dated 29.11.2012 and 263 dated 11.01.2013. PW1 has admitted it to be correct that he has not placed on record balance sheets for any period before the Court. PW1 has stated that he had not received notice U/o 12 Rule 8 of the CPC issued by the Ld. Counsel for the defendant to the plaintiff. PW1 has stated that it is in his knowledge that the notice was received by his Advocate. PW1 has admitted it to be correct that despite notice, certified statement of account or relevant portion of Suit No. 437/14 (Old Suit No. 69/13) Page No. 9/22 balance sheet pertaining to the defendant for the year 2011­12 and 2012­ 13 had not been filed. PW1 has admitted it to be correct that the statement of accounts Ex. PW1/5 is maintained in the computer installed at his Okhla address. PW1 has admitted it to be correct that the plaintiff has received advance payment of Rs. 5 Lacs from the defendant at the time of placing of first work order. PW1 has stated that Mr. Pranav Shorewala is his son and he is also one of the Directors of the plaintiff. PW1 has admitted it to be correct that the plaintiff had asked the defendant to increase the rate of fabric @ Rs. 15/­ per meter, which was agreed by the defendant. PW1 has admitted it to be correct that the debit notes for a sum of Rs. 7,635/­ and Rs. 41,834/­ were issued by the defendant to the plaintiff, but as per mutual discussion, the above two debit notes were entered by the plaintiff in its statement of accounts for Rs. 47,112/­ instead of Rs. 49,469/­. PW1 has stated that Mr. Pranav Shorewala is authorized to send or receive the e­mails on behalf of the plaintiff. PW1 has stated that he cannot confirm the documents relating to the e­mail communications in between the plaintiff and the defendant without checking the mails. PW1 has further stated that the e­mail ID of his son is [email protected]. PW1 has further stated that the plaintiff received and sent the e­mail communications Ex. PW1/DX1(colly)(8 pages). PW1 has admitted it to be correct that since June 27, 2012 upto 11.08.2012, the plaintiff repeatedly assured the defendant to supply the fabric and to complete the order in time, but the same was not supplied. By way of volunteer, PW1 states that the production was not completed for want of approval by the defendant. PW1 has admitted it to be correct that on 11.08.2012, the plaintiff finally Suit No. 437/14 (Old Suit No. 69/13) Page No. 10/22 cancelled the order. PW1 has admitted it to be correct that the plaintiff was in receipt of the advance payment till 11.08.2012 when the order was asked to be cancelled. PW1 has admitted it to be correct that the order which was sought to be cancelled vide e­mail dated 11.08.2012 was thereafter processed by the plaintiff with the increased rates. PW1 has admitted it to be correct that the rejection of fabric and losses suffered by the defendant due to delay in supply of fabric was communicated to the plaintiff by the defendant. PW1 has admitted it to be correct that except mail dated 11.08.2012, there was no communication from the plaintiff to the defendant in respect of non­processing of the order due to the reason of rains. PW1 has admitted it to be correct that the defendant used to make the payment in account and not as per the exact value of invoice. PW1 has admitted it to be correct that the defendant was not irregular in making the payments. PW1 has stated that it is not in his knowledge that the defendant incurred heavy losses of Rs. 6,06,896/­ in sending the shipment through courier instead of sea. PW1 has further stated that it is also not in his knowledge that the defendant had also incurred losses of Rs. 82996.50/­ because of left over linings and trims as the buyer of the defendant reduced the ordered quantity from 2710 pieces to 2036 pieces for the reason of non supply of goods in time. PW1 has denied the suggestion that the defendant was entitled to receive Rs. 331386/­ from the plaintiff or that the defendant is now entitled to receive a sum of Rs. 329029/­ from the plaintiff. PW1 has admitted it to be correct that the defendant had replied the legal notice of the plaintiff. PW1 has shown the original invoices issued by the plaintiff and asked the question that the entries done by the defendant such as the cancellation or the debit note Suit No. 437/14 (Old Suit No. 69/13) Page No. 11/22 issued were the correct entries or not. PW1 has answered that the said entries were correct and the same was correctly shown by the plaintiff in the statement of accounts filed by the plaintiff. The said invoices were exhibited as Ex. PW1/DX2 (5 in number)(colly) during the cross­ examination of PW1.

9. The defendant company has examined Sh. Inder Mohan Kachroo, its Manager (Purchase) as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement­cum­counterclaim.

10. In the cross­examination, DW1 has stated that he has brought the minutes book of the meeting of the Directors in which the resolution Ex. DW1/1 was passed. DW1 has admitted it to be correct that the purchase order Ex.PW1/3 was placed by the defendant with the plaintiff. DW1 has further admitted it to be correct that in accordance with the purchase order, the goods were supplied by the plaintiff to the defendant. By way of volunteer, DW1 states that the goods were supplied by the plaintiff much later in time. DW1 has admitted it to be correct that the defendant never refused to accept the supply of the goods, which were sent by the plaintiff on the ground that the same were supplied late by the plaintiff. DW1 has stated that the defendant, many a times, raised objections in writing to the plaintiff with respect to the late supply of the goods. By way of volunteer, DW1 has stated that the copy of the E­mails in the form of Ex.DW1/4 in this regard are there on record. DW1 has stated that the goods were returned by the defendant to the plaintiff as stated by DW1 in Para no.6 of his affidavit Ex.DW1/A on record to the tune of the debit notes and bills collectively exhibited as Ex.DW1/3 and Suit No. 437/14 (Old Suit No. 69/13) Page No. 12/22 PW1/DX2. DW1 was shown the debit note bearing dates 11.01.2013 and 30.10.2012, which was a part of Ex. DW1/3. DW1 has stated that the said debit note bearing both the abovesaid dates was separately exhibited as Ex.DW1/3/X for the purposes of the identification, during the cross­ examination of DW1. After seeing the debit note Ex.DW1/3/X, DW1 has stated that the factum of the returning of the goods was not mentioned in the said debit note and the said debit note only pertained to the air freight. By way of volunteer, DW1 states that for returning of the goods, separate debit notes were there on record. DW1 has admitted it to be correct that the defendant has not placed on record any proof of delivery of the debit notes to the plaintiff by the defendant. By way of volunteer, DW1 has stated that the plaintiff itself has shown some of the debit notes in the statement of the accounts of the plaintiff. DW1 has admitted that there was no such agreement in writing in between the plaintiff and the defendant to the effect that the defendant had to send the goods by way of air transport, then the plaintiff had to pay the money to the defendant, DW1 has stated that the defendant was constrained to send the goods by way of air transport on account of the late supply of the goods by the plaintiff to the defendant. DW1 has stated that the debit note for the amount of Rs. 6,06,896/­ was against the air freight. DW1 has stated that the wordings used by the Accountant in the statement of account Ex.DW1/6 are in the personal knowledge of the person who maintains the account and as such, he cannot tell about the wordings used in the said statement of accounts against the entry dated 11.01.2013. DW1 has admitted it to be correct that he does not maintain the accounts of the defendant company. DW1 has admitted it to be correct that Suit No. 437/14 (Old Suit No. 69/13) Page No. 13/22 Ex.DW1/6 has not been prepared by him. DW1 has admitted it to be correct that he does not have the personal knowledge about the statement of account Ex.DW1/6 on record. DW1 has further stated that he cannot admit or deny the suggestion that the losses, which have been mentioned by him in para no. 11 of his affidavit Ex. DW1/A on record, have not been shown in the statement of account Ex. DW1/6 on record. By way of volunteer, DW1 has stated that Ex. DW1/6 is in the personal knowledge of the Account Section of the defendant company.

11. The defendant has further examined Sh. Ramesh Chand Gupta, its Accountant as DW2 and this witness, in his evidence by way of affidavit Ex. D2 on record, has stated that he is the Accountant of the defendant company working with the defendant company since the year 2000. This witness has further stated in his affidavit that the entry of the debit note was made under fabric purchase as the head of entry related to fabric is always made under fabric purchase. This witness has further stated that the entries in the statement of account Ex. DW1/6 have been made by him on the basis of the record of the transactions maintained by the defendant company in daily course of business.

12. In the cross­examination, DW2 has stated that he does not have any documentary proof to show that he has been working as Accountant with the defendant company since the year 2000. DW2 has stated that no resolution or authority letter has been passed by the defendant in his favour to depose as a witness before the court. DW2 has further stated that in the Accounts Department of the defendant, there are five computers and six people are working in the Accounts Department of the defendant. DW2 has further stated that out of the six people, Sh.

Ashok Saini, Sh. Ahmed and he himself have been assigned the job of feeding the entries in the computer by the defendant company. DW2 was confronted with the entry dated 11.01.2013 for an amount of Rs. 6,06,896/­ as contained in the statement of accounts Ex.DW1/6 on record and the debit note Ex.DW1/3/X and asked the question as to whether the said debit note Ex.DW1/3/X was prepared by him on account of Air Freight. DW2 has answered in the affirmative. DW2 has admitted it to be correct that in the statement of account Ex.DW1/6 on record, the words "Air Freight" has not been mentioned at all.

13. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Ld. Counsel for the defendant has filed on record certain case law. I have also gone through the case law filed on record by the Ld. Counsel for the defendant.

14. My issuewise finding on the abovesaid issues is as under:

Issues No. 1 & 3 :

15. Both these issues are taken up together as the same are connected interse and overlap each other. The onus to prove issue no. 1 has been placed upon the defendant, whereas, the onus to prove issue no. 3 has been placed upon the plaintiff. Issue no. 3 pertains to the prayer clause of the present suit, whereas, issue no. 1 pertains to the plea of the defendant as contained in the written statement­cum­counterclaim of the defendant. But, both the issues are intrinsically connected with each Suit No. 437/14 (Old Suit No. 69/13) Page No. 15/22 other and as such, both these issues are taken up together for disposal.

16. The defendant company has not denied its commercial transactions with the plaintiff company. It is the admitted case that the plaintiff used to supply the goods to the defendant company. The plaintiff has instituted the present suit on the ground that as per the books of accounts being maintained by the plaintiff, an amount of Rs. 2,77,867.40/­ is due and outstanding against the defendant on account of the principal amount. The defendant, on the other hand, has filed the written statement­cum­counterclaim on the ground that there is an inordinate delay on the part of the plaintiff in supplying the goods. The defendant has further taken up the plea that the plaintiff was nominated vendor of the Buying Agent of the defendant namely M/s Li & Fung (India) Pvt. Ltd., 243, S.P. Inforcity, Tower B, 7 th Floor, Udyog Vihar Phase I, Gurgaon (HR). It has been further stated by the defendant that despite the arbitrary increase in the rate of the fabric @ Rs. 15/­ per meter by the plaintiff, the plaintiff failed to supply the goods in time and as such, the defendant was constrained to send the goods by way of Courier and had to incur the air freight instead of the shipment charges. The defendant has taken up the plea that it had raised the debit note Ex. DW1/3/X on record to the tune of Rs. 6,06,896/­, but, the plaintiff failed to credit the account of the defendant to the extent of the abovesaid debit note dated 30.10.2012. The defendant has further taken up the stand that the statement of account filed by the plaintiff is showing the incorrect entries and many of the debit notes, which were raised by the defendant were not credited by the plaintiff. The plaintiff has controverted the allegations of the defendant and stated that there was no delay on the part Suit No. 437/14 (Old Suit No. 69/13) Page No. 16/22 of the plaintiff in supplying the goods.

17. Relying upon the ratio of the authorities titled as Dr. Binod Bihari Jaina and Anr. Vs. Dr. Raja Bahadur Singh & Ors., in FAO No. 344/2002 decided on 15.05.2008, Baker Oil tools (India) Pvt. Ltd. Vs. Baker Hughes Ltd. & Anr. in RFA No. 583/2004, decided on 03.06.2011, Ld. Counsel for the defendant has argued that though, a specific issue has not been framed on this aspect of the matter, but, the present suit has not been signed and instituted by a duly authorized person. Ld. Counsel for the defendant, during the course of the arguments, has also relied upon the cross­examination of PW1 on this aspect of the matter and has argued that the present suit has not been instituted properly by a duly authorized person.

18. In this regard, it has to be seen that Sh. Kunj Bihari Gupta claims himself to be the Director of the plaintiff company. The plaintiff company is stated to be a Private Limited Company duly incorporated under the provisions of the Companies Act, 1958.

19. In the written statement filed on record by the defendant, the defendant has taken the stand that the plaintiff has failed to place on record the correct address of the registered office of the company. The defendant has further stated that Sh. Kunj Bihari Gupta is not authorized to institute the plaint and to verify the pleadings on behalf of the plaintiff, but, the fact remains that neither, the defendant has denied that the plaintiff is a private limited company incorporated under the provisions of the Indian Companies Act nor the defendant has denied that Sh. Kunj Bihari Gupta is the Director of the plaintiff company. The commercial Suit No. 437/14 (Old Suit No. 69/13) Page No. 17/22 transactions in between the plaintiff and the defendant stand admitted by the defendant. As such, to my mind, despite the fact that PW1, in the cross­examination, has admitted that he has failed to produce on record the minutes of meeting, the defendant has failed to prove on record that the present suit has not been instituted by a duly authorized person.

20. If the plaint filed by the plaintiff is carefully gone through, it becomes apparently clear that the entire case of the plaintiff is based upon the statement of accounts, which is being maintained by the plaintiff in its due and regular course of business, as per the own case of the plaintiff.

21. As such, the vital question to be considered by this Court is as to whether the plaintiff has been able to prove the statement of accounts placed on record by the plaintiff in the form of Ex. PW1/5 on record. The defendant has denied the correctness of the statement of accounts filed by the plaintiff and the defendant has filed on record its own statement of accounts in the form of Ex. DW1/6.

22. In the cross­examination, as stated by me hereinabove, PW1, who is the sole witness examined by the plaintiff, has admitted it to be correct that the statement of accounts Ex. PW1/5 is a computerized print out and he does not himself maintain the accounts in the computer. PW1 has admitted that the accounts of the plaintiff are being maintained by Sh. Vikram Singh, the Accountant of the plaintiff. PW1 has admitted it to be correct that Ex. PW1/5 is the statement of account containing the entries starting from 23.02.2012 till 19.11.2012.

23. Needless to mention that the plaintiff has failed to examine its Accountant Sh. Vikram Singh. PW1 has admitted it to be correct that Suit No. 437/14 (Old Suit No. 69/13) Page No. 18/22 despite the notice U/o 12 Rule 8 of the CPC, which was received by the Ld. Counsel for the plaintiff, certified statement of accounts or relevant portion of balance sheet pertaining to the defendant for the year 2011­12 and 2012­13 were not filed by the plaintiff. PW1 has admitted it to be correct that the statement of accounts Ex. PW1/5 was maintained in the computer installed at his Okhla address. The plaintiff has not examined anyone from the Okhla address of the plaintiff in order to prove on record the statement of accounts Ex. PW1/5.

24. It has been held in the authority titled as Ishwar Dass v. Sohan Lal, cited as AIR 2000 SC 426 that the entries in the account books regularly kept in the course of business are admissible though they by themselves cannot create any liability. It has been further held in the authority titled as Dharam Chand Joshi v. Satya Narayan Bazaz cited as AIR 1993 Gau 35 that books of account being only corroborative evidence must be supported by other evidence. No other corroborative evidence has been led by the plaintiff in the present suit. As such, to my mind, the plaintiff has utterly failed to prove the statement of accounts Ex. PW1/5 on record by way of cogent and reliable evidence.

25. Furthermore, it has to be seen that PW1, in the cross­ examination, has admitted it to be correct that Sh. Pranav Shorewala is his son and he is also one of the Directors of the plaintiff. The e­mails received by the plaintiff and sent by the plaintiff in the form of Ex. PW1/DX1(colly)(8 pages) stand admitted by PW1. PW1, in clearcut and unequivocal terms, has admitted in the cross­examination that the rejection of the fabric and losses suffered by the defendant due to delay Suit No. 437/14 (Old Suit No. 69/13) Page No. 19/22 in supply of the fabric was communicated to the plaintiff by the defendant. As such, I am of the opinion that besides e­mails placed on record, which have been admitted by PW1, there is a categorical admission on the part of PW1 that there was delay in the supply of the goods by the plaintiff.

26. In the light of the abovesaid discussion, I have no hesitation to hold that the defendant has been able to prove that the goods were not delivered by the plaintiff to the defendant at the scheduled time. As such, issue no. 1 is decided against the plaintiff and in favour of the defendant. I am also of the opinion that the plaintiff has failed to establish that it is entitled for the recovery of Rs. 3,32,000/­ alongwith the interest @ 18% per annum as prayed for by the plaintiff in the plaint. As such, issue no. 3 is decided against the plaintiff.

Issue No. 2 :

27. The defendant, in the written statement, has taken up the plea that the place of the business of the defendant is Faridabad. The defendant has taken up the plea that no cause of action has arisen within the jurisdiction of Delhi Courts. During the course of the arguments, Ld. Counsel for the defendant has argued that the Saket Courts, Delhi have got the jurisdiction to entertain and try the present suit.

28. Relying upon the ratio of the authority titled as Tata Motors Ltd. v. Jsc Vtb Bank Ltd. decided on 17.02.2012, Ld. Counsel for the defendant has argued that the Delhi Courts do not have any jurisdiction to entertain and try the present suit.

29. It has to be seen that the commercial transactions in between the plaintiff and the defendant stand admitted by the defendant. The invoice in the form of Ex. PW1/4(colly) have been placed on record by the plaintiff. Perusal of the abovesaid invoices reveals that the same contain a clause to the effect that the Delhi Courts alone have the jurisdiction. As such, I am of the opinion that the abovesaid submission of the Ld. Counsel for the defendant is of no help to the case of the defendant. To my mind, issue no. 2 has not been proved at all by the defendant and accordingly, issue no. 2 is decided against the defendant.

Issue No. 4 :

30. The onus to prove issue no. 4 has been placed upon the defendant. During the course of the arguments, Ld. Counsel for the defendant has vehemently argued that the defendant has raised the debit note dated 30.10.2012 for an amount of Rs. 6,06,896/­ in the form of Ex.

DW1/3/X, but, the plaintiff failed to give the credit of the said debit note and as such, the defendant is entitled for the amount claimed by the defendant in the counterclaim.

31. In this regard, it has to be seen that DW1 and DW2, both have admitted that the said debit note pertains to the air freight only and the same does not pertain to the fabric, which was supplied by the plaintiff to the defendant. If the evidence led by the defendant is carefully gone through, I am of the opinion that the defendant has failed to prove on record that the said debit note was ever delivered by the defendant to the plaintiff and the same was received by the plaintiff.

32. DW1, in the cross­examination, has categorically admitted that the defendant has not placed on record any proof of the delivery of the debit note to the plaintiff by the defendant. Furthermore, it has to be seen that no evidence has been led by the defendant to prove on record that the defendant had to incur an amount of Rs. 6,06,896/­ on account of the air freight.

33. The defendant has examined its Manager as DW1 and its Accountant as DW2. No other witness has been examined by the defendant to prove on record the abovesaid debit note Ex. DW1/3/X. As such, I am of the opinion that the defendant has failed to prove that it is entitled for the amount as claimed by the defendant in the counterclaim. Issue no. 4 stand decided accordingly against the defendant.

Relief :

34. In the light of my findings on the foregoing issues, the suit of the plaintiff as well as the counterclaim of the defendant are hereby dismissed. No orders as to the costs.

Decree sheet be prepared accordingly by the Reader.

File be consigned to Record Room after due compliance.

Announced in the open court                              (RAJ KUMAR)
on this 21st day of January, 2016.                     ADJ­09 (Central)
                                                Tis Hazari Courts, Delhi. 




Suit No. 437/14 (Old Suit No. 69/13)                              Page No. 22/22