Delhi District Court
M/S Arihant Electricals vs Bs Transcomm Ltd on 20 October, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS NO. 14273/16
In re :
1. M/s Arihant Electricals
24/4866, Ansari Road, Darya Ganj,
New Delhi - 110 002.
2. Sh. Amit Jain, Partner
M/s Arihant Electricals
24/4866, Ansari Road, Darya Ganj,
New Delhi - 110 002.
................. Plaintiffs
VERSUS
BS TransComm Ltd.
Regd. Office: 504, V Floor,
Trendset Towers,
Road No. 2, Banjara Hills,
Hyderabad - 500 034.
............. Defendant
Date of institution of present suit : 22.03.2011
Date of receiving in this court : 28.04.2016
Date of hearing arguments : 20.10.2016
Date of Judgment : 20.10.2016
Suit for Recovery of Rs. 51,23,057.26
JUDGMENT
Plaintiff filed the present suit against defendant seeking decree for recovery of sum of Rs. 51,23,057.26 pleading that plaintiff no. 1 was a registered partnership firm and plaintiff no. 2 was its partner and was well conversant with the facts of the case and fully competent to sign, verify the pleadings, institute the suit. As per plaintiff, defendant placed Purchase Orders upon plaintiffs for goods of "TS-100A (100A-60MV) DC Shunt Make: HONGDA (TONDA) ELECTRIC GROUP CO.LTD. vide purchase orders BSTL/IDD/001/2009-10 dated CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 1 of 7 27.10.2009 for an amount of Rs.13,02,776.64, BSTL/IDD/013/2009-10 dated 20.11.2009 for an amount of Rs.13,02,776.64 and BSTL/IDD/024/2009-10 dated 16/28.01.2010 for an amount of Rs.44,10,671. Goods thus manufactured by plaintiff's Chinese manufacturers were sold by plaintiffs to defendant vide invoices dated 10.12.2009, 04.02.2010, 05.02.2010 and 05.02.2010 for Rs.6,72,715.54, Rs.2,72,530.98, Rs.3,99,663.42 and Rs.13,23,388.80 respectively against which the defendant had been making payment from time to time leaving a balance sum of Rs.16,11,497.74 due and payable by the defendant. The plaintiffs had already imported 10,000 shunts from the Chinese manufacturers for the value of Rs.7,20,000/- +CVD to be supplied to defendant as per their tailor made specifications. Similarly 25,000 shunts had already been manufactured and were lying with the Chinese manufacturers for the value of Rs.18,00,000/- to be supplied to the defendant. The defendant was time and again called upon to make the payment in the sum of Rs.41,31,497.74 and finally called upon to make the said payment vide legal notice dated 16.09.2010 but defendant had neglected and failed to make the said payment till date and therefore, the plaintiffs were constrained to file the present suit against the defendant for recovery of the same with interest @24% per annum.
2. Defendant had filed written statement raising preliminary objection that the whole plaint was based on false, frivolous and baseless contents. The present suit was barred under Section 69 of the Indian Partnership Act, 1932, as neither the plaintiff was a registered partnership firm nor the requisite certificate of registration of the firm had been filed along with the plaint; that this Court lacks the necessary and proper territorial jurisdiction in so far as in the first place no cause of action had been shown to have arisen to the plaintiff against the defendant and secondly even through the plaintiff had tried to show a cause of action accruing in its favour neither it had been shown as to how the alleged cause of action had been arisen to the plaintiff against the defendant. The whole suit was based on certain invoices and purchase order(s) which had been accepted by the parties to be deemed as cancelled way back in the month of July CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 2 of 7 2010 and duly accepted by the plaintiff by way of the Minutes of the Meetings dated 19.10.2010 and in view thereof no claim of the plaintiff was sustainable against the defendant in any manner whatsoever on the basis of the alleged invoices. On merits, defendant submitted that first purchase order was placed on 27.10.2009 for a quantity of 20,000 numbers against which only 10,000 units were supplied by 18.11.2009. In the meanwhile defendant placed its second order on 20.11.20009 for 20,000 numbers against which the supplies were affected by the plaintiff on 4th and 5th Feb 2010 of 30,000 units. In the ensuing period although a third purchase order was placed on 16.01.2010 for 60,000 units, however, since no supply was affected nor any intimation of the delivery for the material had been provided by the plaintiff whereas there had been change in the design in the project as required, in the month of June 2010 the defendant duly informed the plaintiff about the said change in design and no utilisation of about 75% of the lot lying unutilised also called for cancellation of the order, which facts was further confirmed to the plaintiff by the defendant vide its mail dt 09.07.2010. Despite the cancellation of the order and huge pilling of unutilised stock the defendant ensured periodic release of payments to the plaintiff from Nov, 2009 till June 2010. Since defendant had already informed about the cancellation of orders pertaining to the balance quantity, hence subsequent payments were kept on hold and in view of notice of demand the parties reached to a conclusion on 19.10.2010 wherein the matter was settled a Memorandum of Settlement to be sent by the plaintiff which never came forward and instead plaintiff filed the present suit based on absolutely baseless, frivolous and unsustainable demands, anything contrary thereto was denied. Rest of the contents of the plaintiff was denied by defendant.
3. Subsequently, Plaintiffs filed replication to the written statement reiterating and reaffirming the contents of the plaint and denying the submission of the defendant in written statement.
4. From the pleadings of the parties following issues were framed vide CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 3 of 7 order dated 15.07.2013
1. Whether the present suit as framed is maintainable or not? OPD
2. Whether the suit is barred under Section 69 of the Indian Partnership Act, 1923 as the plaintiff is not a registered partnership firm? OPD
3. Whether this Hon'ble Court lacks the territorial jurisdiction to try and adjudicate the present suit? OPD
4. Whether the suit is barred in view of the settlement reached between the parties and recorded by way of minutes of meetings dated 19.10.2010? OPD
5. Whether the suit is bad for want of cause of action in view of the parties having agreed for a total payment of Rs.13,59,583/- only subject to executed of Memorandum of Settlement which the plaintiff has failed to send to the defendant, besides further failing to prove the details of documents for difference amount of Rs.2,51,915/-? OPD
6. Whether the plaintiff is entitled to any payment of Rs.51,23,057.26 ps, despite the settlement dated 19.10.2010? OPP
7. Whether the plaintiff is entitled to decree, if so what amount? OPP
8. Whether the plaintiff is entitled to any interest, if so to what amount and for what period? OPP
9. Relief.
5. The plaintiff has filed affidavit of one witness. Thereafter, vide order dated 18.09.2015, plaintiff was permitted to file fresh affidavit with print out of Ex. PW1/K together with supporting certificate under Section 65B of Indian Evidence Act. Plaintiff did not file the affidavit and in view of notification no. 27187/DHC/Original dated 24.11.2015 present suit was transferred to district court. Thereafter, plaintiff did not lead any evidence nor graced the witness box for examination and and as such plaintiff evidence was closed. Defendant also CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 4 of 7 did not lead evidence and closed the same stating that since plaintiff has not led any evidence, defendant also did not want to lead evidence.
6. Counsel for parties have addressed the arguments. Record and material available on record perused, issue wise findings are as under.
ISSUE NO. 1:- Whether the present suit as framed is maintainable or not? OPD Onus to prove this issue is upon the defendant. Defendant did not lead any evidence as recorded above. No argument was addressed as to how suit is not maintainable. Perusal of the plaint does not reveal that suit would not be maintainable in the circumstance as pleaded in the plaint. Accordingly, issue No. is decided against the defendant and in favour of plaintiff.
ISSUE NO. 2:-Whether the suit is barred under Section 69 of the Indian Partnership Act, 1923 as the plaintiff is not a registered partnership firm? OPD Onus to prove this issue is upon the defendant. Onus was put upon the defendant as plaintiff filed the present suit with photocopy of Form A and B. If the plaint had not been filed with photocopy of Form A & B, onus to prove this would have been upon the plaintiff. No doubt plaintiff did not lead any evidence but since onus was upon the defendant who did not lead evidence, therefore, present issue is decided against the defendant and in favour of plaintiff.
ISSUE NO. 3 :- Whether this Hon'ble Court lacks the territorial jurisdiction to try and adjudicate the present suit? OPD Onus to prove this issue is upon the defendant. Defendant did not lead evidence. Hence, issue No.3 is decided against the defendant and in favour of plaintiff.
ISSUE NO. 4:- Whether the suit is barred in view of the settlement reached between the parties and recorded by way of minutes of meetings dated 19.10.2010? OPD CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 5 of 7 Onus to prove this issue is upon the defendant. Defendant did not lead evidence. Hence, issue No. 4 is decided against the defendant and in favour of plaintiff.
ISSUE No. 5:- Whether the suit is bad for want of cause of action in view of the parties having agreed for a total payment of Rs.13,59,583/- only subject to executed of Memorandum of Settlement which the plaintiff has failed to send to the defendant, besides further failing to prove the details of documents for difference amount of Rs.2,51,915/-? OPD Onus to prove this issue is upon the defendant. Defendant did not lead evidence. Hence, issue No. 5 is decided against the defendant and in favour of plaintiff.
ISSUE No. 6:- Whether the plaintiff is entitled to any payment of Rs.51,23,057.26 ps, despite the settlement dated 19.10.2010? OPP Onus to prove this issue is upon the Plaintiff. Plaintiff did not lead evidence. Hence, issue No. 6 is decided against the plaintiff and in favour of defendant.
ISSUE No. 7 :- Whether the plaintiff is entitled to decree, if so what amount? OPP Onus to prove this issue is upon the Plaintiff. Plaintiff did not lead evidence. Hence, issue No. 7 is decided against the plaintiff and in favour of defendant.
ISSUE No. 8 :- Whether the plaintiff is entitled to any interest, if so to what amount and for what period? OPP Onus to prove this issue is upon the Plaintiff. Plaintiff did not lead evidence. Hence, issue No. 8 is decided against the plaintiff and in favour of defendant.
RELIEF In view of the findings recorded herein before, suit of the Plaintiff is CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 6 of 7 dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to record room, after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 7 pages) Delhi/20.10.2016
CS No. 14273/16 M/s Arihant Electricals vs BS TransComm Ltd. Page No. 7 of 7