Delhi District Court
Sonu Jain vs Avdhesh Kumar Kaushik on 5 November, 2024
IN THE COURT OF MS. KIRAN BANSAL DISTRICT JUDGE
COMMERCIAL COURT-02, SHAHDARA, KARKARDOOMA COURTS,
DELHI
CS (Comm) No. 150/2024
In the matter of
Mr. Sonu Jain
Proprietor - M/s. Dipanshu Hosiery,
IX/7029, Guru Nanak Gali,
Gandhi Nagar, Delhi - 110031
Mob No. 9310394421 .....Plaintiff
Versus
Mr. Avdesh Kumar Kaushik,
Proprietor - M/s. Pingaksh Collection,
IX/5736, Gali No.6,
Subhash Mohalla, Near Gauri Shankar Mandir,
Gandhi Nagar, Delhi - 110031
Also at:
F/F, B-17, Old No. 15,16,17,
Gali No.3, Amar Vihar, Karwal Nagar,
North East, Delhi - 110094.
Mobile No. 9990090405, 7011504902 .....Defendant
Date of institution of the case : 07.03.2024
Date of final arguments : 19.10.2024
Date of judgment : 05.11.2024
EX PARTE JUDGMENT
1. The present is a commercial suit for recovery of Rs.6,44,935/- along
with pendentlite and future interest @ 18% per annum filed by M/s. Dipanshu
Hosiery through its Proprietor Mr. Sonu Jain against Mr. Avdesh Kumar Kaushik,
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 1 of 15
Proprietor of M/s. Pingaksh Collection
2. Briefly facts of the case as stated by plaintiff are that the defendant
since 27.01.2018 was purchasing the hosiery knitted cloth from the plaintiff and
plaintiff supplied the same to the defendant at the agreed rate and as per
specifications of defendant. It is averred that in between 27.01.2018 to 31.03.2018,
defendant placed order for purchasing the hosiery knitted cloth from the plaintiff
and the plaintiff supplied the same as per specification of defendant amounting to
Rs.5,58,168/-, however, the defendant again acted unethically and unbusinessman
in respect of the payment and the amount of Rs.3,17,443 was still outstanding
against the defendant as on 31.03.2018. It is further averred that in between
01.04.2018 to 31.03.2019, defendant again placed order for purchasing the hosiery
knitted cloth from the plaintiff and the plaintiff supplied the same as per
specifications of defendant amounting to Rs.12,06,372/-, however, the defendant
acted in unethical manner and an amount of Rs.3,96,036/- remains outstanding
against the defendant as on 31.03.2019.
2.1 It is stated that in between 01.04.2019 to 31.03.2020, defendant again
placed order for purchasing the hosiery knitted cloth from the plaintiff and the
plaintiff supplied the same as per specifications of defendant amounting to
Rs.14,78,713/-, however, an amount of Rs.8,24,749/- remained outstanding against
the defendant as on 31.03.2020. It is further stated that in between 01.04.2020 to
31.03.2021, defendant again placed order for purchasing the hosiery knitted cloth
from the plaintiff and the plaintiff supplied the same as per specifications of
defendant amounting to Rs.2,20,186/-, however, an amount of Rs.6,44,935/-
remains outstanding against the defendant. The relevant GST Tax Invoices
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 2 of 15
numbers as stated in plaint are not repeated for the sake of brevity.
2.2 It is averred that an amount of Rs.6,44,935/- remains outstanding
against the defendant from 04.03.2021 against the hosiery knitted cloth given to
defendant by plaintiff and the last payment of Rs.50,000/- was received by the
plaintiff from the defendant through cheque on 04.03.2021. A legal demand notice
dated 09.01.2024 was served upon the defendant on 09.01.2024 demanding an
amount of Rs.6,44,935/- to be paid within 7 days from the receipt of the notice,
however, the defendant did not pay the same. It is averred that the cause of action
arose for filing the present suit as the defendant did not made the payment of the
outstanding amount till the filing of the present suit.
2.3 It is stated that plaintiff works for gain at Gandhi Nagar, Delhi -
110031 and orders were placed by the defendant at Gandhi Nagar and the tax
invoice in respect of sale of Hosiery Knitted Cloth was raised by plaintiff at Gandhi
Nagar, therefore, the present court has territorial jurisdiction to entertain and decide
the present suit. It is further stated that the present suit is for recovery of
Rs.6,44,935/- and hence, this court has pecuniary jurisdiction to entertain and
decide the present suit. It is further stated that suit is valued at Rs.6,44,935/- and
advalorem court fees of Rs.8,640/- has been affixed.
3. Defendant was served on 14.03.2024, but, despite that defendant
neither put his appearance nor has filed any WS within the stipulated period of
30 days or even within the outer limit of 120 days with an application for
condonation of delay, the defendant, thus, was proceeded ex-parte vide order
dated 07.05.2024 and matter was proceeded for ex parte evidence. Thereafter,
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 3 of 15
son of the defendant Sh. Vinay Kaushik appeared in person on 15.07.2024 and
he was apprised of the fact that defendant has already been proceeded ex parte
and his right to file WS was closed and the matter was proceeded for ex parte
evidence. On the next date of hearing i.e. 05.08.2024, defendant appeared in
person and submitted that he does not wish to engage a counsel. No application
under Order IX Rule 7 CPC was moved on behalf of defendant to set aside ex
parte order dated 07.05.2024, nor any WS along with application seeking
condonation of delay was filed on his behalf.
4. In order to prove its case, plaintiff has examined himself as PW-1
and he tendered his affidavit as Ex.PW1/A in evidence. He has reiterated the
facts averred in the plaint and relied upon the following documents:
Copy of GST Tax Invoice No.313 dated 09.03.2018 as Ex.PW1/1;
Copy of GST Tax Invoice No.352 dated 20.03.2018 as Ex.PW1/2;
Copy of GST records regarding GST paid on sale on 09.03.2018 and
20.03.2018 as Ex.PW1/3;
Copy of ledger account from 27.01.2018 to 31.03.2018 as Ex.PW1/4;
Copy of GST Tax Invoice No.023/18-19 dated 06.04.2018 as Ex.PW1/5;
Copy of GST Tax Invoice No.046/18-19 dated 14.04.2018 as Ex.PW1/6;
Copy of GST Tax Invoice No.054/18-19 dated 17.04.2018 as Ex.PW1/7;
Copy of GST Tax Invoice No.084/18-19 dated 29.04.2018 as Ex.PW1/8;
Copy of GST Tax Invoice No.101/18-19 dated 06.05.2018 as Ex.PW1/9;
Copy of GST Tax Invoice No.159/18-19 dated 30.05.2018 as Ex.PW1/10;
Copy of GST Tax Invoice No.313/18-19 dated 28.08.2018 as Ex.PW1/11;
Copy of GST Tax Invoice No.334/18-19 dated 07.09.2018 as Ex.PW1/12;
Copy of GST Tax Invoice No.352/18-19 dated 15.09.2018 as Ex.PW1/13;
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 4 of 15
Copy of GST Tax Invoice No.398/18-19 dated 07.10.2018 as Ex.PW1/14;
Copy of GST Tax Invoice No.402/18-19 dated 10.10.2018 as Ex.PW1/15;
Copy of GST Tax Invoice No.419/18-19 dated 24.10.2018 as Ex.PW1/16;
Copy of GST Tax Invoice No.437/18-19 dated 06.11.2018 as Ex.PW1/18;
Copy of GST Tax Invoice No.440/18-19 dated 17.11.2018 as Ex.PW1/18;
Copy of GST Tax Invoice No.603/18-19 dated 29.01.2019 as Ex.PW1/19;
Copy of GST Tax Invoice No.710/18-19 dated 16.03.2019 as Ex.PW1/20;
Copy of GST record from GST website regarding the GST paid on sale
06.04.2018, 14.04.2018, 17.04.2018, 29.04.2018, 06.05.2018, 30.05.2018,
28.08.2018, 07.09.2018, 15.09.2018, 07.10.2018, 10.10.2018, 24.10.2018,
06.11.2018, 17.11.2018, 29.01.2019, 16.03.2019 as Ex.PW1/21(colly);
Copy of the ledger account from 01.04.2018 to 31.03.2019 as Ex.PW1/22;
Copy of GST Tax Invoice No.19-20/24 dated 14.04.2019 as Ex.PW1/23;
Copy of GST Tax Invoice No.19-20/40 dated 26.04.2019 as Ex.PW1/24;
Copy of GST Tax Invoice No.19-20/90 dated 22.05.2019 as Ex.PW1/25;
Copy of GST Tax Invoice No.19-20/149 dated 18.06.2019 as Ex.PW1/26;
Copy of GST Tax Invoice No.19-20/274 dated 13.08.2019 as Ex.PW1/27;
Copy of GST Tax Invoice No.19-20/304 dated 30.08.2019 as Ex.PW1/28;
Copy of GST Tax Invoice No.19-20/343 dated 15.09.2019 as Ex.PW1/29;
Copy of GST Tax Invoice No.19-20/365 dated 28.09.2019 as Ex.PW1/30;
Copy of GST Tax Invoice No.19-20/536 dated 15.01.2020 as Ex.PW1/31;
Copy of GST Tax Invoice No.19-20/569 dated 04.02.2020 as Ex.PW1/32;
Copy of GST Tax Invoice No.19-20/598 dated 21.02.2020 as Ex.PW1/33;
Copy of GST record from GST website regarding the GST paid on sale is
14.04.2019, 26.04.2019, 22.05.2019, 18.06.2019, 13.08.2019, 30.08.2019,
15.09.2019, 28.09.2019, 15.01.2020, 04.02.2020, 21.02.2020 as
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 5 of 15
Ex.PW1/34(colly);
Copy of the ledger account from 01.04.2019 to 31.03.2020 as Ex.PW1/35;
Copy of GST Tax Invoice No.20-21/033 dated 08.07.2020 as Ex.PW1/36;
Copy of GST Tax Invoice No.20-21/065 dated 01.08.2020 as Ex.PW1/37;
Copy of GST record from GST website regarding the GST paid on sale is
08.07.2020 and 01.08.2020 as Ex.PW1/38(colly);
Copy of the ledger account from 01.04.2020 to 31.03.2021 as Ex.PW1/39;
Copy of bank account statement of 04.03.2021 showing the last payment
of Rs.50,000/- received from defendant as Ex.PW1/40;
Office copy of the legal demand notice as Ex.PW1/41;
The legal demand notice speed post registration receipt as Ex.PW1/42;
The copy of tracking report as Ex.PW1/43;
Non Starter Report of Pre-Institution Mediation as Ex.PW1/44;
Copy of GST certificate as Ex.PW1/45;
Certificate u/s 65B of the Indian Evidence Act as Ex.PW1/46;
Certificate by way of affidavit u/o XI Rule 6(3) CPC r/w Section 65B of
the Indian Evidence Act as Ex.PW1/47;
Copy of the ledger account dated 01.04.2021 to 31.03.2022, 01.04.2022
to 31.03.2023, 01.04.2023 to 26.02.2024 as Ex.PW1/48(colly).
5.1 Witness Sh. Samyak Jain is examined as PW-2 who tendered his
evidence by way of affidavit Ex.PW2/A and has relied upon the following
documents:
The GST Tax Invoices as Ex.PW1/1, Ex.PW1/2, Ex.PW1/5, Ex.PW1/6,
Ex.PW1/7,Ex.PW1/8,Ex.PW1/9,Ex.PW1/10,Ex.PW1/11,Ex.PW1/12,Ex.P
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 6 of 15
W1/13,Ex.PW1/14,Ex.PW1/15,Ex.PW1/16,Ex.PW1/17,Ex.PW1/18,Ex.P
W1/19,Ex.PW1/20,Ex.PW1/23,Ex.PW1/24,Ex.PW1/25,Ex.PW1/26,Ex.P
W1/27,Ex.PW1/28,Ex.PW1/29,Ex.PW1/30,Ex.PW1/31,Ex.PW1/32,Ex.P
W1/33,Ex.PW1/36 and Ex.PW1/37.
The Ledger Account Statements as Ex.PW1/4, Ex.PW1/22, Ex.PW1/35,
Ex.PW1/39 and Ex.PW1/48 (colly.).
The GST Records of the plaintiff from the GST Website regarding the
GST already paid on sales as Ex.PW1/3, Ex.PW1/21(colly.),
Ex.PW1/34(colly.) and Ex.PW1/38(colly.).
Speed post tracking report as Ex.PW1/43.
The certificate u/s 65B(4)(c) of the Indian Evidence Act, 1872 as
Ex.PW1/46.
Certificate by way of affidavit under Order XI Rule 6 (3) of CPC, 1908
r/w Section 65B of the Indian Evidence Act as Ex.PW1/47.
5.2 Another summoned witness Sh. Ashutosh Kumar examined as PW-
3 shows the input credit entries of 31 tax invoices dated 09.03.2018, 20.03.2018,
06.04.2018, 14.04.2018, 17.04.2018, 29.04.2018, 06.05.2018, 30.05.2018,
28.08.2018, 07.09.2018, 15.09.2018, 07.10.2018, 10.10.2018, 24.10.2018,
06.11.2018, 17.11.2018, 29.01.2019, 16.03.2019, 14.04.2019, 26.04.2019,
22.05.2019, 18.06.2019, 13.08.2019, 30.08.2019, 15.09.2019, 28.09.2019,
15.01.2020, 04.02.2020, 21.02.2020, 08.07.2020 and 01.08.2020 related to
GSTIN No.07AEMPJ1767P1ZT Dipanshu Hosiery Proprietor Sh. Sonu Jain,
showing entries month-wise in GSTR-2A of Pingaksh Collection, Proprietor Sh.
Avdhesh Kumar Kaushik having GSTIN No.07AMNPK9669E1ZG as
Ex.PW3/A(colly.).
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 7 of 15
The certificate u/s 65B of the Indian Evidence Act, 1872 is exhibited as
Ex.PW3/B;
The record related to GSTR-3B which shows the input tax credit of 31 tax
invoices had been taken by Pingaksh Collection, Proprietor Sh. Avdhesh Kumar
Kaushik having GSTIN No.07AMNPK9669E1ZG from purchase from
Dipanshu Hosiery Proprietor Sh. Sonu Jain having GSTIN
No.07AEMPJ1767P1ZT as Ex.PW3/C(colly.).
Thereafter, the ex parte evidence of the plaintiff was closed and the matter
was fixed for ex-parte final arguments.
6. The court has thoroughly gone through the testimony of witness and
perused the material on record and have also duly considered the arguments
advanced by ld. counsel for plaintiff and gone through the law and precedents on
the point.
7. The suit is commercial in nature and squarely falls within the
purview of Section 2 (1) (C) of Commercial Courts Act and plaintiff has also
duly complied with mandatory provision of Pre-Institution Mediation and
Conciliation as provided in Section 12 A of Commercial Courts Act.
8. As far as territorial jurisdiction is concerned, the plaintiff has stated in
para 14 of the plaint that for purchase of goods, orders were placed by the
defendant to the plaintiff at Gandhi Nagar, Delhi and the tax invoices in respect of
sales of Hosiery Knitted Cloth to the defendant was raised by plaintiff at Gandhi
Nagar, Delhi and GST was also paid by plaintiff at place for work of gain. Moreso,
perusal of the Tax Invoices Ex.PW1/1 reveals that the bank details are given
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 8 of 15
wherein the defendant was to make payment of the amount as mentioned in the
Invoices. The said bank account of the plaintiff in State Bank of India is situated at
Krishna Nagar Branch, Delhi - 110051. The defendant is also residing and
working for gain within the jurisdiction of the present court, as per the address
mentioned in the memo of parties.
9. The Hon'ble Delhi High Court in Satyapal Vs. Slick Auto Accessories
Pvt. Ltd. & Ors., 2014 SCC Online Del 998 has held that
"Since the trial court has written, in my opinion, a very thorough
and an excellent judgment, I would like to reproduce the relevant
paras of the judgment of the trial court instead of using my
words. The relevant paras of the trial court are 19 to 25 and the
same read as under:
"ISSUE NO. 1:
"19. The question to be answered is as to whether this court has
no territorial jurisdiction to try and entertain the present suit. The
onus to prove this issue was upon the defendant.
20. The defendants have contended that the office/factory of the
defendants is situated in Bhiwadi, District-Alwar, Rajasthan and
the delivery of the goods was also made at Bhawadi, District-
Alwar, Rajasthan at the office/factory of the defendants and
therefore no part of the cause of action arose within the
jurisdiction of this court. DW1 has deposed on these lines.
21. There is no doubt the material was supplied by the plaintiff
to the defendants at Bhiwadi, District-Alwar, Rajasthan. The
same is clear from the invoices Ex. PW1/A and Ex. PW1/B.
However even if the material was delivered at Bhiwadi, District-
Alwar, Rajasthan it is clear that the material was supplied from
the office/factory of the plaintiff situated at Jwala Nagar,
Shahdara, Delhi-32 which falls within the jurisdiction of this
court.
22. It is a well established principle of law that where, under a
contract no place of payment is specified, the debtor must seek
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 9 of 15
his creditor and therefore a suit for recovery is maintainable at
the place where the creditor resides or works for gain, because a
part of the cause of action arises at that place also with the
contemplation of section 20 (c) of the Code of Civil Procedure.
Reference may be made to the judgments titled as "State of
Punjab V. A. K. Raha" reported as AIR 1964 CALCUTTA 418
(DB), "Jose Paul v. Jose" reported as AIR 2002 KERALA 397
(DB), "Rajasthan State Electricity Board V. M/s Dayal Wood
Works" reported as AIR 1998 ANDHRA PRADESH 381,
"Munnisa Begum V. Noore Mohd." Reported as AIR 1965
ANDHRA PRADESH 231 and "State of U.P.v. Raja Ram"
reported as AIR 1966 AllAHABAD 159.
23. In the judgment titled as "State of Punjab v. A. K. Raha"
reported as AIR 1964 CALCUTTA 418 (DB) it was clearly held:
"...........The general rule is that where no place of payment is
specified in the contract either expressly or impliedly, the debtor
must seek the creditor, see The Eider (1893) P 119 at p. 136,
Drexel v. Drexel. (1916) 1 Ch 251 at p. 261, North Bengal, Das
Brothers Zemindary Co. Ltd V. Surendera Nath Das, ILR (1957)
2 Cal 8. The obligation to pay the debt involves the obligation to
find the creditor and to pay him at the place where he is when
the money is payable. The application of the general rule is not
excluded because the amount of debt is disputed...."
24. In the judgment titled as Sreenivasa Pulvarising vs Jal Glass
& Chemicals pvt. Ltd. reported as AIR 1985 Cal 74 it was also
held:
"......In a contract of the nature now under consideration
performance of the contract consists not only of delivery of the
goods but also of payment of the price. Therefore, cause of
action for a suit on breach of such a contract would arise not
only where the goods were to be delivered but also where the
price would be payable on such delivery....."
It was further held:
".......9. Therefore, the law continues to remain the same and in a
suit arising out of a contract, a part of the cause of action arises
at the place where in performance of the contract any money to
which the suit relates in payable...."
Adverting to the facts of the present case office/factory of the
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 10 of 15
Plaintiff is situated at Jwala nagar, Shahdara, Delhi-32. No place
of payment has been specified in the contract/bills/invoices. The
defendants are liable to make the payment for the goods supplied
to them. No application was made by the defendants to the
plaintiffs for fixing a place of payment and Sec. 49 of the Indian
Contract Act cannot apply to the facts of the case. Therefore, the
payment was to be made at the office of the plaintiff. Further the
purchase order was placed at Jwala Nagar, Shahdara, Delhi-32
and the goods were supplied from Jwala nagar, Shahdara, Delhi-
32 Therefore a part of th cause of action definitely arises at
Jawala Nagar, Shahdara, Delhi-32. Hence the present suit for
recovery of the sale price can be filed before this court as the
office of the plaintiff is situated within the territorial limits of the
jurisdiction of the court.
25. I therefore hold that this court has the territorial jurisdiction
to try and entertain the present suit. This issue is therefore
decided in favour of the plaintiff and against the defendants."
(underlining added)
6. I completely agree with the conclusion of the trial court
because it is settled law that the debtor has to seek the creditor
and since no place of payment was agreed upon, payment would
have been made to the seller/appellant who is residing and
working for gain at New Delhi. Trial court has also rightly relied
upon Section 49 of the Indian Contract Act, 1872 that it was
upon the respondent no.1/defendant no. 1 to fix the place of
payment and which has not been done, and therefore payment would have been made by the debtor to the creditor at the place of the creditor/plaintiff/appellant."
10. There is nothing on record to suggest that any place of payment was agreed upon between the parties. As no place of payment seems to have been agreed upon by the parties, the principal that the debtor must be the creditor would apply. The bank account of the plaintiff bank is in SBI at Krishna Nagar Branch which falls within the jurisdiction of present court and therefore, the present court CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 11 of 15 has territorial jurisdiction to decide the present case.
11. The first Invoice was of 09.03.2018 and the last invoice was of 01.08.2020. Even the last payment of Rs.50,000/- was made by the defendant on 04.03.2021 as per the Ledger Account Ex.PW1/39. It is pertinent to mention that the Apex Court has in the order dated 10.01.2022 in suo moto Writ Petition(c) 2020 In Re: Cognizance for extension of limitation, while discussing the difficulties faced by litigants due to outbreak of Corona Virus, directed that period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or specific laws in respect of all judicial or quasi judicial proceedings. The present suit has been instituted on 07.03.2024 and thus, is filed within the period of limitation.
12. The defendant, has not filed their written statement along with statement of truth, affidavit of admission and denial of documents as well as its own documents within the stipulated period of 30 days from its service and even upto 120 days along with an application for condonation of delay.
13. The averments made in the plaint (which is supported with the affidavit and statement of truth) remain uncontroverted, unrebutted and unchallenged and can be presumed to be admitted as correct as the defendant failed to file his written statement along with statement of truth, affidavit of admission and denial of documents of the plaintiff and failed to file his own documents as well as any application for condonation of delay within the stipulated period from the date of his service. The defendant has also failed to contest the case or put up any defence.
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 12 of 15
14. The testimony of PW-1 remains uncontroverted, unrebutted and unchallenged. There is no reason to disbelieve the testimony of PW-1 who has reiterated, reasserted and reaffirmed all the facts, as elaborated in the plaint. All the relevant documents and relevant averments have been proved in the evidence and affidavit of Sh. Sonu Jain, Proprietor of the plaintiff company (PW-1).
15. Perused the documents proved by the plaintiff at the time of evidence. The Invoices relied upon by the plaintiff Ex.PW1/1 to Ex.PW1/39 can be taken into account against the defendant as PW-3 Sh. Ashutosh Kumar summoned witness from Office of GST Office proved the input credit entries of all the 31 tax invoices dated 09.03.2018, 20.03.2018, 06.04.2018, 14.04.2018, 17.04.2018, 29.04.2018, 06.05.2018, 30.05.2018, 28.08.2018, 07.09.2018, 15.09.2018, 07.10.2018, 10.10.2018, 24.10.2018, 06.11.2018, 17.11.2018, 29.01.2019, 16.03.2019, 14.04.2019, 26.04.2019, 22.05.2019, 18.06.2019, 13.08.2019, 30.08.2019, 15.09.2019, 28.09.2019, 15.01.2020, 04.02.2020, 21.02.2020, 08.07.2020 and 01.08.2020 related to GSTIN No.07AEMPJ1767P1ZT Dipanshu Hosiery Proprietor Sh. Sonu Jain and also showing entries month-wise in GSTR- 2A of Pingaksh Collection, Proprietor Sh. Avdhesh Kumar Kaushik having GSTIN No.07AMNPK9669E1ZG Ex.PW3/A(colly.). Moreso, PW-3 also proved the record related to GSTR-3B showing input tax credit of all 31 tax invoices had been taken by Pingaksh Collection, Proprietor Sh. Avdhesh Kumar Kaushik having GSTIN No.07AMNPK9669E1ZG from purchase from Dipanshu Hosiery Proprietor Sh. Sonu Jain having GSTIN No.07AEMPJ1767P1ZT Ex.PW3/C(colly.). All these Invoices find mentioned along with numbers and their amounts on the debit side of the ledger account statements Ex.PW1/35, Ex.PW1/39 and Ex.PW1/48. The Invoices also bears the complete details of the goods supplied CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 13 of 15 in the column 'Description of Goods' as well as complete details of defendant in the column Buyer (billed to), it stands proved that the goods were delivered to the defendant at his office at Gandhi Nagar, Delhi - 110031.
16. Plaintiff is claiming an amount of Rs.6,44,935/- as balance principal amount as on 04.03.2021 as per Ledger Account Ex.PW1/39 along with pendentlite and future interest @ 18% per annum. As plaintiff has proved the abovesaid Invoices and all these Invoices also finds mentioned in the Ledger Statement, thus, plaintiff has proved the delivery of goods as per the Invoices. Thus, plaintiff is entitled to a sum of Rs.6,44,935/- as principal and also an interest on the said amount at reasonable rate as the defendant has deprived them of the said amount. The details as to on what basis interest @ 18% is claimed has not been stated by the plaintiff in the plaint, nor in the ex parte evidence affidavit Ex.PW1/A. Neither any affidavit under Order VII Rule 2A CPC was filed by the plaintiff in which it is stated that the parties to the suit had agreed that interest @ 18% per annum shall be charged. Though there is a stipulation on the Invoice Ex.PW1/36 and Ex.PW1/37 that interest @ 24% per month will be charged on delayed payments, however, such unilaterally printed terms and conditions on the invoices do not form a binding contract. Plaintiff, however, is entitled to interest at a reasonable rate. In the prayer clause plaintiff has only claimed future and pendelite interest. The pre suit interest has neither been claimed by the plaintiff, nor the same has been bifurcated as per Order VII Rule 2A CPC. The plaintiff has also not quantified the pre suit interest, nor has paid court fees on the same. Thus, in the interest of justice, it is directed that plaintiff shall be entitled to interest @ 9% on the principal amount of Rs.6,44,935/- from 07.03.2023 till its realisation.
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 14 of 15
17. In view of the unrebutted testimony of PW1 and the documents proved on record, the suit of the plaintiff is decreed for an amount of Rs.6,44,935/- as principal with interest @ 9% per annum on the principal amount of Rs.6,44,935/-, from 07.03.2024 till its realisation alongwith cost to the extent of court fees and litigation cost of Rs.25,000/-
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
KIRAN
KIRAN BANSAL
BANSAL Date:
2024.11.05
ANNOUNCED IN OPEN COURT
12:53:17
+0530
on 05.11.2024 (Kiran Bansal)
District Judge, Commercial Court-02
Shahdara, Karkardooma
Delhi/05.11.2024
CS (Comm) No. 150/2024 Mr. Sonu Jain Vs. Mr. Avdesh Kumar Kaushik Page No. 15 of 15