Delhi District Court
Shri Manoj Kumar Vij vs Mr. Indraneel Bose on 20 October, 2023
M/S R.K. Enterprises vs. Bose Design Private Limited
IN THE COURT OF SH. DEEPAK GARG,
DISTRICT JUDGE-COMMERCIAL COURT-09
(CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI.
CNR NO.:- DLCT01-001156-2022
CIVIL SUIT (COMMERCIAL) NO.:- 217/2022
IN THE MATTER OF :-
1.M/S R.K. Enterprises, Through its registered partners, Sh.Manoj Kumar Vij, Office: 101-B, Cycle Market, Jhandewalan, New Delhi 110055
2. Shri Manoj Kumar Vij, Registered partner of M/S R.K. Enterprises, Office at: 101-B, Cycle Market, Jhandewalan, New Delhi 110055 ....Plaintiffs Versus
1. Bose Design Private Limited, Through its Director Mr. Indraneel Bose, Office at: C-21, 1st Floor, Okhla Industrial Area, Phase 1, Delhi 110020
2. Mr. Indraneel Bose, Director of Bose Design Private Limited, Office at: C-21, 1st Floor, Okhla Industrial Area, Phase 1, Delhi 110020 ....Defendants Date of institution of the Suit : 20/01/2022 Date on which Judgment was reserved : 10/10/2023 Date of Judgment : 20/10/2023 ::- J U D G M E N T -::
CS (Comm) 217/2022 Page 1 of 16M/S R.K. Enterprises vs. Bose Design Private Limited
1. By way of present judgment, this court shall adjudicate upon this suit filed by the plaintiffs against the defendants for recovery of Rs.7,52,088/- along with pendentelite and future interest @ 24% per annum.
PLAINTIFF'S CASE
2. The brief facts of the case are that :
i. The plaintiff no. 1 is a partnership firm duly regis- tered under the Partnership Act, 1932 and Sh. Manoj Ku- mar Vij i.e. plaintiff no. 2 is one of the partners of the said firm. The plaintiff firm is engaged in the business of off- set printing materials and the plaintiff is doing the said business under the name and style of M/S R.K. Enter- prises having its office at the abovesaid address. ii. That on eof the partners namely, Sh. Sandeep Vij ex- pired on 20/04/2021 due to COVID in the second wave of Covid pandemic and his wife Mrs. Shally Vij has joined the said partnership firm and all the existing assets and liabilities of the business of the erstwhile partnership which subsist between the Surviving partner and the de- ceased partner have been taken over the Reconstituted firm i.e. plaintiff firm.
iii. Defendant no. 1 is a private company and duly in- corporated under the Companies Act, 1956 and defendant no. 2 is the Director of the defendant no. 1. The defen- dants deals in printing and service activities related to the CS (Comm) 217/2022 Page 2 of 16 M/S R.K. Enterprises vs. Bose Design Private Limited printing and both the parties were having business deal- ings since long.
iv. The plaintiff firm had been selling the offset print material to the defendants and defendants had also been purchasing the offset printing material from the plaintiffs on credit basis.
v. Defendant no. 1 placed the order telephonically or/and at times through other officials for supply of goods and plaintiffs have supplied the goods to the defendants as per order of the defendants.
vi. That all the goods were duly received by the defen- dants and all the bills are duly countersigned/stamped by the staff of the defendants after receiving the same. vii. That the plaintiff firm has maintained a running, mu- tual, open and current account with the defendant and a ledger account in respect of the sales to the defendants and all the entires were made therein only after supplying the goods to the defendants.
viii. The defendant had also issued several cheques in favour of the plaintiff firm to clear the part of the debt/lia- bility but defendant no. 2 further requested the plaintiff for not depositing the cheques into the bank for encash- ment due to financial hardship and assured the plaintiff to clear all the debts by transferring the amount in the bank account of the plaintiff through RTGS/NEFT. ix. After adjusting the amount paid by the defendants to the plaintiffs upto 30/09/2021, the defendants are liable to CS (Comm) 217/2022 Page 3 of 16 M/S R.K. Enterprises vs. Bose Design Private Limited pay a sum of Rs.7,09,517/- to the plaintiff firm along with interest @24% per annum w.e.f. 01/10/2021 to 31/12/2021 along with pendentelite and future interest @ 24% per annum.
x. Plaintiff had filed an application against the defen- dants towards pre-institution mediation before Delhi State Legal Authority, Tis Hazari Courts, Delhi. After service of notice, defendant no. 2 had appeared before DLSA, how- ever, later on he did not appear before Delhi Legal Au- thority and hence, non starter report 15/09/2020 was is sued by Delhi Legal Service Authority.
xi. The defendant did not pay and clear the outstanding dues of the plaintiff. Hence, the plaintiffs have filed the present suit for recovery against the defendants.
3. Summons of the suit were issued to the defendants. The defendants appeared before the court.
DEFENDANT'S CASE
4. It is relevant here to state that complete paper book was supplied to Ld. Counsel for the defendants on 19/05/2022 but written statement was not filed by the defendants within 120 days and hence vide order dated 17/05/2023, my Ld. Prede- cessor forfeited the right of the defendants to file the written statement and their defence was directed to be struck off .
CS (Comm) 217/2022 Page 4 of 16M/S R.K. Enterprises vs. Bose Design Private Limited ISSUES
5. On the basis of the pleadings following issues were set-
tled on 17.05.2023:
(i). Whether the plaintiff is entitled to the recovery as asked for in the plaint? OPP
(ii) If in case the issue no. 1 is decided in affirmative, whether the plaintiff is entitled to the interest as asked for in the plaint? OPP
(iii). Relief.
PLAINTIFF'S EVIDENCE
6. Plaintiff has examined PW1 Sh. Manoj Vij, Registered partner of plaintiff no. 1 plaintiff firm, who filed his evidence by way of affidavit ExPW1/A and relied upon documents which are as under:
i. Form A issued by Registrar of Firms before joining of Mrs.Shalley Vij as partner is ExPW1/1. (OSR) ii. Form B issued by Registrar of Firms before joining of Mrs.Shalley Vij as partner is ExPW1/2. (OSR) iii. The copy of the supplementary deed dated 06/07/2021 is ExPW1/3 (OSR).
iv. Form A issued by Registrar of Firms after joining of Mrs.Shalley Vij as partner is ExPW1/4. (OSR) v. Form B issued by Registrar of Firms after joining of Mrs.Shalley Vij as partner is ExPW1/5. (OSR) CS (Comm) 217/2022 Page 5 of 16 M/S R.K. Enterprises vs. Bose Design Private Limited vi. Office copies of the bills/invoices are ExPW1/6 colly (20 pages) vii. Computer generated copy of ledger account w.e.f.
01/04/2019 to 31/03/2021 is ExPW1/7 colly (4 pages) viii. Non starter report dated 11/01/2022 (date is stated to be inadvertently mentioned as 15/09/2020 in the affidavit) issued by Delhi Legal Service Authority is ExPW1/8
7. This witness was cross examined by Ld. Counsel for the defendant.
8. Plaintiff has examined PW2 Sh. Ishan Vij, who filed his evidence by way of affidavit ExPW2/A and relied upon docu- ments which are as under:
i. The office copies of the bills/invoices already exhib ited as ExPW1/6 colly (20 pages) ii. Computer generated copy of ledger account w.e.f. 01/04/2019 to 31/03/2021 is already exhibited as ExPW1/7 colly (4 pages) iii. Certificate u/s 65B of Indian Evidence Act is ExPW2/1.
9. This witness was cross examined by Ld. Counsel for the defendant.
CS (Comm) 217/2022 Page 6 of 16M/S R.K. Enterprises vs. Bose Design Private Limited ISSUEWISE FINDINGS Issue no. 1
(i). Whether the plaintiff is entitled to the recovery as asked for in the plaint? OPP
10. It is the case of the plaintiff that both the parties had busi-
ness relations with each other since long and PW1 has de- posed that plaintiff had supplied offset printing materials to the defendants as per their requirement vide bills/invoices ExPW1/6 colly. It is further deposed by PW1 that the plaintiff has been maintaining a running, mutual, open and current ac- count with the defendant and the plaintiff firm has also been maintaining a ledger account in respect of sales to the defen- dants and after adjustment of the amount paid by the defen- dants upto 31/09/2021, as per the ledger account ExPW1/7 colly, the defendants are liable to pay a sum of Rs.7,09,517/- to the plaintiff firm.
11. As stated above, both the witnesses of the plaintiff have been cross examined by ld. Counsel for the defendant. PW1 has deposed in his cross examination that the plaintiff is the dealer of M/S Technova Imaging System Pvt. Ltd. which is a Mumbai based company and plaintiff receives order telephon- icaly from the customers and sometime the goods were sup- plied by them directly to the customers and sometimes the company delivers directly to the customers. He further de- posed that the plaintiff has been supplying good to the defen-
CS (Comm) 217/2022 Page 7 of 16M/S R.K. Enterprises vs. Bose Design Private Limited dant for the last 7-8 years and defendant personally used to place purchase orders on behalf of defendant company and the goods used to be delivered to the office of the defendant company at Okhla, Delhi. He further admitted that he had not filed statement of account with the defendant company prior to 2019 and the cheques issued by the defendant company have not been filed in this case by the plaintiff. He further de- nied the suggestion that the defendant is not liable to pay the suit amount to the plaintiff.
12. PW2 in his cross examination deposed that he is working as an Accountant in the plaintiff firm and his duty was to maintain accounts and that he did not have personal knowl- edge about the purchase orders placed by the defendant com- pany to the plaintiff firm.
13. It is relevant here to state that it is not the case of the de-
fendant that the goods in question were not delivered to the defendant, in respect of which claim has been made by the plaintiff in the present suit. No such suggestion has been given to the witnesses of the plaintiff in the cross examina- tion.
14. As stated above, there is no defence of the defendant on record since the right of the defendant to file written state- ment was forfeited and their defence was struck off by the Court vide order dated 17/05/2023. Both the witnesses of the CS (Comm) 217/2022 Page 8 of 16 M/S R.K. Enterprises vs. Bose Design Private Limited plaintiff have stood the test of cross examination and nothing could be extracted in their cross examination that could dis- credit their testimony. The documents filed by the plaintiff i.e. all the invoices Ex. PW1/6 (colly) and the statement of ac- count/ledger account w.e.f. 01.4.2019 to 08.09.2021 Ex. PW1/7 have remained unchallenged.
15. Further, it is submitted by Ld. Counsel for plaintiffs that plaintiffs maintains regular books of account in the regular course of its business activities and the plaintiff has also been maintaining an account in respect of purchases made by de- fendants from the plaintiff firm. It is also borne out from the records that payments received from the defendants have been duly adjusted.
16. The testimony of both the witnesses of the plaintiffs is convincing and truthful and has remained impeachable. It is corroborated by documentary evidence. There is no ground for me to disbelieve the same. The defendants have miserably failed to prove its case.
ARGUMENTS, ANALYSIS & FINDINGS
17. I have heard the detailed arguments of Ld. counsel for both the parties and have also gone through the record.
CS (Comm) 217/2022 Page 9 of 16M/S R.K. Enterprises vs. Bose Design Private Limited ARGUMENTS ADVANCED BY LD. COUNSEL FOR THE DEFENDANT
18. Now, I shall deal with the arguments/objections of the Ld. Counsel for the defendant one by one. The arguments ad- vanced by Ld. Counsel for defendants are primarily as under:
I. WHETHER THIS COURT DOES NOT HAVE THE TERRITORIAL JURISDICTION TO TRY THIS CASE
19. It is argued by ld. Counsel for the defendants that this court does not have the territorial jurisdiction to try this case be- cause admittedly the defendant is operating at Okhla, Delhi In- dustrial Area Phase I, Delhi 110020 and the goods were also de- livered to the office of the defendant company at Okhla, Delhi and PW1 in his cross examination has admitted the said fact and hence, the suit filed within the jurisdiction of this court is not maintainable.
20. It is argued by ld. Counsel for the plaintiff that part cause of action has arisen within the jurisdiction of this court within the meaning of Section 20 (c) CPC and hence this court has the ju- risdiction to try this case.
21. The word 'cause of action' has not been statutorily de- fined. However, a comprehensive definition of the same emerges from the various judicial pronouncements of the superior courts.
CS (Comm) 217/2022 Page 10 of 16M/S R.K. Enterprises vs. Bose Design Private Limited The expression 'cause of action' has acquired a judicial settled meaning. 'Cause of action' constitutes the circumstances forming the infraction of the right for the immediate occasion for the ac- tion. 'Cause of action' means the bundle of facts, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. In legal parlance, the expression, the expression 'cause of action' is generally un- derstood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal, a group of operative facts giving rights to one or more basis for suing; a fact or situa- tion that entitles one person to obtain a remedy in court from an- other person. Reliance is place upon Naveen Chandra N. Ma- jithia vs. State of Maharashtra AIR 2000 SC 2966.
22. The cause of action has to be culled out from the plead- ings in the plaint which would be necessary for the plaintiff to prove, in order to obtain a relief from the court. It is settled prin- ciple of cause that averments made in the plaint are the GER- MANE and the cause of action has to be culled out on a conjoint reading of the entire plaint.
23. In para no. 15 of the plaint, it is mentioned by the plain- tiffs that the goods were supplied to the defendants from Jhande- walan, Delhi (Plaintiff's office) and the payments were also re- ceived by the plaintiffs from the defendants at Jhandewalan, Delhi, which is within the jurisdiction of this court and hence this court has territorial jurisdiction to try this case.
CS (Comm) 217/2022 Page 11 of 16M/S R.K. Enterprises vs. Bose Design Private Limited
24. The witness of the prosecution have not been cross ex- amined by the Ld. Counsel for the defendants as to from where the goods were supplied by the plaintiffs to the defendants and further about the place where the payments were received by the plaintiffs from the defendants. In my view, it cannot be said that the cause of action does not arise at place from where the goods were supplied to the buyer and further the place where the pay- ments were received by the seller. In the present case, since it is the case of the plaintiffs that both the said acts i.e. supply of goods and receiving of payment were at Jhandewalan, which is within the jurisdiction of this court, I have no hesitation in hold- ing that this argument of the Ld. Counsel for the defendants has no merit that this court does not have territorial jurisdiction to try this case.
II. WHETHER THE SUIT IS NOT MAINTAINABLE IN THE ABSENCE OF THE AUTHORITY LETTER OF THE OTHER PARTNER
25. It is stated by the Ld. Counsel for the defendant that plaintiff no. 1 is a partnership firm and plaintiff no. 2 is the part- ner of the same, but no authority letter of the other partner i.e. Ms. Shally Vij has been filed by the plaintiffs authorising the plaintiff to institute the present suit and hence this suit is liable to be dismissed.
CS (Comm) 217/2022 Page 12 of 16M/S R.K. Enterprises vs. Bose Design Private Limited
26. In this regard, it is relevant here to state that under Order 30 Rule 1 (i) CPC, any two or more persons claiming or being li- able as partners and carrying on business may sue or be sued in the name of the firm of which such persons were partners at the time of accruing of the cause of action.
27. In the present case, FORM A and FORM-B issued by "Registrar of Firm" after joining of Mrs. Shally Vij have been filed on behalf of the plaintiffs and the same are exhibited as ExPW1/4 and ExPW1/5 respectively. The said documents clearly show that Sh. Manoj Kumar Vij (plaintiff no. 2) and Ms. Shally Vij, are the partner of the plaintiff no. 1 firm. Ld. Counsel for the defendant has failed to produce any law that the present suit could not have been filed by the plaintiff no.1 firm and one of the partners i.e. plaintiff no.2, in the absence of any authority letter of the second partner Ms. Shally Vij and hence, in totality this ar- gument of Ld. Counsel for the defendants has no merit.
III. WHETHER DEFENDANT HAS MADE ALL THE PAYMENTS TO THE PLAINTIFFS AND IS NOT LIABLE TO PAY ANY AMOUNT TO THE PLAINTIFFS
28. It is argued by ld. Counsel for the defendant that there was smooth transaction between both the parties initially and only after the death of Sh. Sandeep Vij, who was erstwhile partner, the dispute arose between the parties and further de- fendant has already cleared the entire payment and no liabili- ties are due against the the defendants in this regard.
CS (Comm) 217/2022 Page 13 of 16M/S R.K. Enterprises vs. Bose Design Private Limited
29. It is relevant here to state that Section 103 of Indian Evi-
dence Act provides that the burden of proof as to any particu- lar fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lies on any particular person.
30. In the present case, since right of the defendant to file written statement was struck off and there is no defence of the defendants on record, the defendants have miserably failed to prove that entire payment has already been made by them.
31. Here, it is out of place to mention that during the trial of this case, this matter was referred to Mediation Centre for the parties to explore the possibility of settlement and on 09/06/2022 both the parties arrived at settlement before Delhi Mediation centre and the defendants had undertaken to pay the total sum of Rs.7,50,00/- in full and final settlement and this amount was payable in 17 installments as per the schedule mentioned therein and admittedly the defendants had paid first three installments of Rs. 25,000/- each (total Rs. 75,000/-) but further payment was not made and hence, this court continued with the trial of this suit. If the defendants had already paid the entire amount to the plaintiffs then why they settled the case with the plaintiffs and agreed to pay Rs.7,50,000/- in the mediation proceedings and also paid first three installments amounting to Rs.75,000/- in total. Further, the defendants have miserably failed to lead any evidence to show that the CS (Comm) 217/2022 Page 14 of 16 M/S R.K. Enterprises vs. Bose Design Private Limited entire amount is already paid to the plaintiffs. Hence, this ar- gument of the counsel for the defendants has also no merit.
CONCLUSION
32. After considering all the facts and circumstances, I hold that the plaintiffs have been able to prove its case by prepon- derance of probability that the goods in question were sold to defendants vide invoices Ex.PW1/6 colly and after adjusting the amount paid by the defendants from time to time including the amount of Rs.75,000/- paid by the defendants to the plain- tiffs in pursuance of settlement in mediation, an amount of Rs.6,34,517/- remained due to be paid and the defendants are liable to pay the said amount.
Issue no. 2
(ii). If in case the issue no. 1 is decided in affirmative, whether the plaintiff is entitled to the interest as asked for in the plaint? OPP
33. As far as the interest is concerned, plaintiffs have claimed interest @ 24% per annum both pendentelite and future on the aforesaid amount. Considering the current bank rate of interest it would be appropriate to grant interest @ 12% per annum from the date of filing of the present suit i.e. 20/01/2022 till its realisation. Therefore, I held that plaintiff is entitled to recover a sum of Rs.6,34,517/- (Rs.7,09,517 - Rs.75,000) alongwith pendentelite and future interest @ CS (Comm) 217/2022 Page 15 of 16 M/S R.K. Enterprises vs. Bose Design Private Limited 12% from from the date of filing of the present suit i.e. 20/01/2022 till its realisation.
Issue no. 3 (iii) Relief
34. In view of the aforesaid discussions, the suit is decreed in favour of the plaintiff and against the defendants for sum of Rs.6,34,517/- alongwith pendentelite and future interest @ 12% from from the date of filing of the present suit i.e. 20/01/2022 till its realisation.
35. Decree sheet be prepared according.
36. File be consigned to Record Room, after due compliance.
Announced in the open Court on this 20th Day of October, 2023.
(Deepak Garg) Distt. Judge, (Comm. Court)-09, Central District, THC : Delhi CS (Comm) 217/2022 Page 16 of 16