Delhi District Court
Akshay Kapoor vs . Pc Solution & Anr. on 19 October, 2019
IN THE COURT OF SIDDHANT SIHAG, CIVIL JUDGE02, SOUTH
EAST DISTRICT, SAKET COURTS, ND.
Civil Suit No. 310/19
Akshay Kapoor vs. PC Solution & Anr.
Akshay Kapoor
Proprietor of M/s Kosmix
304, 3rd Floor, Saraswati House27,
Nehru Place, New Delhi110019 ..........Plaintiff
Versus
1. PC Solution Computer
C2/168, Shop No.1, Near Punjabi Rasoi,
Yamuna Vihar, Delhi110053
Email: [email protected]
2. Mr. Shubham jain
Authorized Signatory/Proprietor
PC Solution Computer
C2/168, Shop No.1, Near Punjabi Rasoi,
Yamuna Vihar, Delhi110053
Email: [email protected]
Also at:
1/2284, Main Mandoli Road,
Ram Nagar, Shahdara, Delhi110032 ........Defendants
Date of institution of the suit : 16.02.2019
Date of reserved for order/judgment : 27.09.2019
Date of pronouncement of judgment : 19.10.2019
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JUDGMENT
1. The instant suit has been filed by the plaintiff for recovery of Rs.1,24,200/(Rupees One Lakh Twenty Four Thousand and Two Hundred Only) alongwith interest.
2. Plaintiff's version as per averments in the plaint: 2.1. The plaintiff is the sole proprietor of M/s Kosmix and he has been dealing in wholesale business of selling computer antivirus software at the above mentioned address.
2.2. The defendant No.1 is carrying its business under the name and style of M/s PC Solution Computer at the above mentioned address. Defendant No.2 is the proprietor and key managerial person and authorized signatory in bank of defendant No.1 and is responsible for its day to affairs.
2.3. The defendants had approached the plaintiff in the month of July 2018 and made purchase of certain antivirus software from the plaintiff in lieu of which the plaintiff had duly raised invoices against the defendants and the said goods were duly delivered to defendants. The details of the said purchases made by the defendants from the plaintiff is as follows:
(i) Purchase of 'K7 1 User Total Security' vide invoices No. K0S/201819/2454 dated 10.07.2018 for an amount of Rs. 58,200/.
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(ii) Purchase of 'Quick Heal Total Security 3 User (Tr3)' vide invoices No. K0S/201819/2595 dated 14.07.2018 for an amount of Rs. 66,000/.
2.4. It is pertinent to mention here that defendant No.2 had represented himself to be sole proprietor of defendant No.1 firm as well as another firm called 'Navkar Computers' located at 1/2284, Main Mandoli Road, Ram Nagar, Shahdara, Delhi and had made some purchase in the name of its other firm as well.
2.5. In lieu of the abovesaid purchase and against the abovesaid invoices, the defendant No.2 issued two post dated cheques bearing No. 158058 dated 13.08.2018 in the sum of Rs. 58,200/ and bearing No. 160751 dated 16.08.2018 in the sum of Rs. 66,000/ both drawn on IDBI, Yamuna Vihar, Delhi from their account bearing No. 1409102000005043 in favour of the plaintiff in the name of proprietorship firm 'Kosmix' towards the discharge of their legal liability to pay the due and outstanding amount.
2.6. When the plaintiff presented both the abovementioned cheques for encashment, the same were returned dishonoured with remarks 'Funds Insufficient' vide cheque returning memos dated 14.08.2018 and 17.08.2018 respectively.
2.7. Thereafter, upon the request and persuasion of the defendant, the plaintiff again presented both the abovesaid cheques for Civil Suit No. 310/19 Akshay Kapoor vs. PC Solution & Anr. page no. 3 of 6 encashment on 15.10.2018, but once again the said cheques were returned dishonoured with remarks 'Funds Insufficient' vide cheque returning memos dated 16.10.2018.
2.8. The plaintiff then served a legal notice dated 02.11.2018 upon the defendants which was duly served. However, the defendants failed to give any reply to the said legal notice. Therefore, the plaintiff initiated complaint U/s 138 NI Act against the defendants regarding the two dishonoured cheques vide complaint dated 03.12.2018 which was registered as CC No. 2242/2018 and is pending before Ms. Swati Gupta, Ld. MM, South East District, Saket, New Delhi.
3. After institution of the suit, summons as per the provision of Order 37 CPC were issued and served on both the defendants on 07.03.2019. Defendants did not enter appearance within statutory period as provided under Order 37 CPC.
4. Heard. Perused.
5. The instant suit pertains to recovery of Rs. 1,24,200/ for software supplied by the plaintiff to the defendants. Copies of the invoices raised by the plaintiff are on record. Against the said invoices, defendant No.2 had issued two postdated cheques bearing No. 158058 dated 13.08.2018 Civil Suit No. 310/19 Akshay Kapoor vs. PC Solution & Anr. page no. 4 of 6 in the sum of Rs. 58,200/ and bearing No. 160751 dated 16.08.2018 in the sum of Rs. 66,000/ both drawn on IDBI, Yamuna Vihar, Delhi from their account bearing No. 1409102000005043 in favour of the plaintiff in the name of proprietorship firm 'Kosmix' towards the discharge of their legal liability to pay the due and outstanding amount. When the plaintiff presented both the abovementioned cheques for encashment, the same were returned dishonoured with remarks 'Funds Insufficient' vide cheque returning memos dated 14.08.2018 and 17.08.2018 respectively. Thereafter, the plaintiff again presented both the abovesaid cheques for encashment on 15.10.2018, but once again the said cheques were returned dishonoured with remarks 'Funds Insufficient' vide cheque returning memos dated 16.10.2018. Certified copy of the proceeding filed under Section 138 of the Negotiable Instruments Act is on record. Copies of both the cheques and return memos are also filed.
6. The suit is within limitation. Since the suit is based on cheque issued by defendant No.2, it is covered under Order 37 CPC. Defendants were served with summons under Order 37 CPC on 07.03.2019. However, they never entered appearance and as per the mandate of Order 37 Rule 2 CPC, since defendants have not entered any appearance, the allegations in the plaint are deemed to be admitted.
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7. It is to be noted that defendant No.1 is a proprietorship concern which has no independent legal existence. Hence, no judgment/order can be passed against defendant No.1. However, plaintiff is entitled to a decree for a sum of Rs. 1,24,200/ against defendant No.2 alongwith pendente lite and future interest @ 18% per annum.
Cost of the suit is awarded to plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (Siddhant Sihag)
Today on 19.10.2019 Civil Judge02, SE, Saket Court,
New Delhi
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