Delhi District Court
Changfang Semiconductor Pvt. Ltd vs Neo Neon Electricals Pvt. Ltd on 6 September, 2024
In the Court of Ms. Anu Grover Baliga,
District Judge (Commercial Court-04), South-East District,
Saket Courts, New Delhi.
CS (COMM) 380/2021
Changfang Semiconductor Pvt Ltd. Vs. Neo-Neon Electricals Pvt. Ltd.
In the matter of:
Changfang Semiconductor Pvt Ltd
Through its Director Mr. Anup Kumar
S/o Sh. Mahesha Nand
HA-43, Sector-104, Noida
Gautam Buddha Nagar (U.P.) - 201 301. ....Plaintiff
Versus
Neo-Neon Electricals Pvt. Ltd.
Through its Director Mr. Rakesh Arora
Office at: L-1/64B, DDA Flats
Kalkaji
New Delhi-110019.
Also at:
A-151, Sector-83
Phase-2, Noida
Gautam Budh Nagar
Uttar Pradesh - 201 305. ....Defendant
Date of institution : 09.09.2021
Date of reserving judgment : 08.08.2024
Date of pronouncement of Judgment : 06.09.2024
JUDGMENT
1. This is a suit filed by the Plaintiff seeking recovery of Rs.13,43,320/- along with pendente lite and future interest.
CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 1/30Pleadings:
2. Briefly stated, the case of the Plaintiff is that it is engaged in the business of trading of LED lighting and that on the orders placed upon it by the Defendant Company w.e.f. 23.01.2019 to 30.01.2020, it had supplied various LED goods to it and that as per the account maintained by it, the Defendant owes an amount of Rs.10,96,589/- to it on account of goods supplied. Invoices i.e. dated 05.09.2019, 19.08.2019, 27.09.2019, 12.10.2019 and 15.10.2019 alongwith statement of ledger account maintained by the Plaintiff have been filed on record to reflect the outstanding amount. Alongwith the principal amount, the Plaintiff is also seeking interest of Rs.2,46,731/- @12% per annum w.e.f. 16.10.2019.
3. In its written statement, the Defendant Company admits that it had been placing orders upon the Plaintiff from time to time but it denies that an amount of Rs.10,96,589/- is pending to be paid by it to the Plaintiff. It is the stand of the Defendant Company that as per the statement of accounts maintained by it, it only owes an amount Rs.2,69,547.80 to the Plaintiff. It is also the stand of the Defendant that the invoices filed on record by the Plaintiff have been forged and fabricated by the Plaintiff and that no material mentioned in the said invoices was ever ordered or received by it.
Issues framed:
4. This case was fixed for framing of issues on 22.11.2022 and on this date, Ld. Counsel for the Plaintiff had pointed out that in its affidavit filed for the purposes of admission and denial, the Defendant has admitted the invoice dated 05.09.2019 which was for an amount of Rs.2,88,864/-. The Director of the Defendant Company on the said date then undertook before this court that the Defendant will tender the said amount to the Plaintiff CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 2/30 within two working days thereof. In view thereof and on the pleadings of the parties, this Court had therefore framed the following issues in the present case:-
1.Whether the Plaintiff supplied the goods to the Defendant vide invoices dated 19.08.2019, 27.09.2019, 12.10.2019 and 15.10.2019? OPP
2. Whether the Plaintiff is entitled to seek a recovery of Rs.10,54,456/- against the receipt of goods delivered vide the aforementioned invoices and interest at the rate of 12% per annum against the non payment? OPP Evidence:
Plaintiff's Evidence:
5. The Plaintiff in order to prove its case has produced PW1 Sh Anup Kumar, one of its Directors in the witness box and has also summoned the Regional Manager (Legal) of Blue Dart Express Ltd, as its witness. PW1 in his affidavit filed for the purposes of evidence has more or less reiterated the contents of the plaint. This witness has interalia deposed that vide Board Resolutions dated 08.12.2020 and 17.11.2023, he has been authorized on behalf of the Plaintiff Company to file and pursue the present suit. The copies of the said Board Resolutions have been given Ex.PW1/2 and Ex.PW1/C. As per the deposition of this witness, the invoices vide which the material had been supplied to the Defendant and payment of which remained due have been given Ex.PW1/3 (i), Ex.PW1/3 (ii) and Ex.PW1/3 (iii). This witness has also deposed that the Plaintiff Company had been maintaining a account of the Defendant which on the date of his deposition reflects that a sum of Rs.8,07,725/- remains outstanding against the Defendant. The said statement of account has been given Ex.PW1/4. This witness has also deposed that in discharge of its liability, the Defendant Company had issued a cheque dated 05.11.2019 bearing No.00856 for Rs.2,88,864/- and 02 CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 3/30 undated cheques bearing No.000009 and 000010 for Rs.50,000/- each. According to the deposition of this witness, the cheque for Rs.2,88,864/- was dishonoured on presentation and the other two cheques were not presented by the Plaintiff, for the Defendant was repeatedly requesting the Plaintiff Company that it would soon transfer the pending amount through RTGS. He has further deposed that when the Defendant Company failed to honour its own assurance, the Plaintiff Company issued a legal notice to the Defendant calling upon it to make the payment of the balance due. The legal notice and the postal receipts referred to by this witness have been given Ex.PW1/6, Ex.PW1/7 and Ex.PW1/8 respectively. In support of the electronic record placed on record on behalf of the Plaintiff, this witness has tendered his certificate under Section 65B of the Indian Evidence Act, 1872 ( being in force at the said time), which has been given Ex.PW1/10.
6. PW2 Sh. Abhimanyyu Nirulaa, Regional Manager (Legal) of Blue Dart Express Ltd was summoned by the Plaintiff to prove the delivery of goods supplied by it to the Defendant vide invoice dated 27.09.2019. As per the deposition of this witness, it was vide an airway bill dated 27.09.2019 that the goods mentioned in the invoice dated 27.09.2019 were delivered at the office of the Defendant. As per the deposition of this witness, the copy of postal receipts/airway bill No.50652164883 dated 27.09.2019 alongwith invoice dated 27.09.2019, tracking report regarding the delivery of the goods of the above airway bill consisting of three pages has been given Ex.PW2/B (Colly.- i, ii and iii). The bills raised by the company of this witness against the Plaintiff for the services rendered by it was also brought by this witness and was given Ex.PW2/C. Defendant's Evidence:
CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 4/307. On behalf of the Defendant, one of its Directors, Sh. Rakesh Arora has stepped into the witness box and he has been examined as DW-1. The Board Resolution authorising this Director to depose on behalf of the Defendant company stands proved as DW-1/B. In his affidavit filed for the purposes of evidence, he has inter alia deposed that the invoices filed along with the plaint are all fabricated and the goods mentioned therein were never received by the Defendant company. He has also deposed that the Defendant company was also maintaining a running account and that as per the same only an amount of Rs. 2,69,547.80/- was pending to be paid by the Defendant company to the Plaintiff as on the date of filing of the suit. In view of the deposition of this witness the said statement of account assertedly maintained by the Defendant company was given Ex. DW-1/C. He has also deposed that two cheques for Rs. 50,000/- each were deposited by the Defendant company with the Plaintiff company at the start of the business, for the Plaintiff was demanding the same as security.
Contentions of Ld. Counsels:
8. Ld. Counsel for the Plaintiff, Ms. Santwana Agarwal and Ld. Counsel for the Defendant, Sh. Rajesh Bagga, have advanced final arguments and have also filed written submissions.
9. Ld. Counsel for the Plaintiff Ms. Agarwal has advanced the following main contentions:
• The Plaintiff has led sufficient evidence to prove that it had delivered the goods to the Defendant which are mentioned in the Invoice No. CF/2019-20/0386 of Rs.3,21,923/-, Invoice No.CF/2019-20/0438 of Rs.4,26,074/- and Invoice No.CF/2019-20/0449 of Rs.9,468/-.CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 5/30
• The deposition of PW2 proves that an official of Blue Dart Express Limited duly delivered the goods mentioned in the first of these invoices at the office of the Defendant Company.
• The fact of delivery of the goods vide the second of the aforementioned invoices is proved by the fact that the invoice filed on record contains the stamp of the Defendant Company as acknowledgment of the receipt of goods.
• The fact of delivery of the goods vide the third of the aforementioned invoices is proved by the acknowledgment given by one Daya, an employee of the Defendant Company.
• The statements given by DW1 in his cross-examination prove that the defence taken by the Defendant Company in its written statement is false.
10. In reply, Ld. Counsel for the Defendant, Sh. Bagga has made the following main contentions:-
• The suit of the Plaintiff is not maintainable on the ground that the plaint/suit has not been signed, verified and filed by a competent person and authorized representative on behalf of the company. The Board Resolutions filed on record have not been passed as per the provisions of the Companies Act.
• This Court has no territorial jurisdiction to try the present suit for as per the case put up by the Plaintiff itself, the goods were assertedly dispatched from the office of the Plaintiff at Noida to the office of the Defendant also situated in Noida.
• The Plaintiff has miserably failed to prove that it had supplied goods to the Defendant through Invoice No. CF/2019-20/0386 of Rs.3,21,923/-, Invoice No.CF/2019-20/0438 of Rs.4,26,074/- and CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 6/30 Invoice No.CF/2019-20/0449 of Rs.9,468/- for no written purchase orders have been placed on record by the Plaintiff Company to show that the Defendant Company ever ordered the goods mentioned in the said invoices. Further the receipts being relied on record to contend that the goods were received by the Defendant are only photocopies and therefore cannot be read in evidence. The statements made by the Plaintiff's witnesses in their cross-examination and the deposition given by the Defendant's witness clearly prove that no goods were ever received against the aforementioned invoices.
• The Plaintiff has also failed to produce on record the GST details with respect to the aforementioned invoices and that therefore it has failed to prove that it had ever sold/delivered the goods mentioned in the aforementioned invoices.
• The statement of running account assertedly maintained by the Plaintiff and filed on record, in terms of Section 34 of the Evidence Act, cannot be deemed sufficient to prove that the Defendant is liable to make any payment to the Plaintiff Company.
• The falsity of the invoices/e-way bills filed on record is also evident from the fact that 'Part B' of Ex.PW1/3 (i) mentions that the same is not valid for movement. Similarly, the e-way bill Ex.PW1/3 (ii) reflects that the distance between the Plaintiff and the Defendant Company is 14 Kilometers, though the witness of the Plaintiff PW1 himself stated that the said distance is only 4-5 Kilometers. As such, both the invoices/e-way bills should be taken as fabricated and false.
11. In rebuttal, Ld. Counsel for the Plaintiff has submitted that the Defendant never raised an objection in is written statement that the suit has not been filed by a competent person and that even otherwise the Plaintiff CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 7/30 has led sufficient evidence before this Court to show that Sh. Anup Kumar was duly authorised by the Plaintiff Company to file and pursue the present suit. She has further contended that this Court does have the territorial jurisdiction to try the present suit in as much as the registered office of the Defendant is in Kalkaji and the same was admitted by DW1 in his cross- examination.
Findings of the Court:
12. It is relevant to mention that apart from the issues that were framed on the basis of the averments taken in the written statement, during the course of trial, Ld. Counsel for the Defendant had vehemently sought to contend that this present suit is liable to be dismissed interalia on the ground that the suit has not been filed by a person duly authorised by the Plaintiff Company to do so. He had submitted that despite the fact that Defendant in its written statement had not chosen to question the authority of Sh. Anup Kumar to file the present suit, this court is bound to take notice of the fact that the Board Resolution authorising PW1 Sh. Anup Kumar to file the present suit, Ex.PW1/2 is only signed by one of the Directors of the Plaintiff Company, though the provisions of Section 173(4) of the Companies Act, 2013 provide that majority of the Directors of the Board must be present at the Board Meeting. To meet the said objection of Ld. Counsel for the Defendant, two applications were filed by the Plaintiff - one under Order XVIII Rule 17 CPC and another under Order XI Rule 1(5) CPC. Vide the said applications, permission was sought of this Court to re-examine PW1 and to place on record a fresh Board Resolution dated 17.11.2023 executed by the two Directors of the Plaintiff Company, authorising Sh. Anup Kumar to institute the present suit. Vide a detailed order dated 27.03.2024, this Court had allowed the said two applications. Pursuant to the said order, PW1 Anup CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 8/30 Kumar had again stepped into the witness box and had placed on record a Board Resolution dated 17.11.2023 authorising him to pursue this suit. Despite the fresh Resolution placed on record, Ld. Counsel for the Defendant has sought to contend that PW1 has no authority to file the present suit. The submission of Ld. Counsel in this respect is that the one of the Directors namely, Pankaj Yadav who has now assertedly passed the Board Resolution authorising PW1 Anup Kumar to file the present suit does not hold any share in the company and that therefore he cannot be the Director of the Plaintiff Company and that both Mr. Pankaj Yadav and Sh. Anup Kumar have played fraud upon this Court and that they must be prosecuted under Section 340 Cr.PC and Section 192 Cr.PC (as were in force at the said point of time). He has further sought to contend that no minutes of meeting maintained by the Plaintiff Company were placed on record and that therefore this Court must dismiss the present suit as having been filed without any authority.
13. In the considered opinion of this Court, none of the objections of the Ld. Defence Counsel can be accepted. In its order dated 27.03.2024, this Court has already referred to judicial dicta laid down by the Hon'ble Supreme Court and the Hon'ble Delhi High Court to hold that such mere technicalities as being pointed out by Ld. Counsel for the Defendant are not sufficient to dismiss the suit of the Plaintiff. In the case titled and reported as United Bank of India Vs. Naresh Kumar, 1996 (6) SCC 660, the Hon'ble Supreme Court has made it clear that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause and that there are sufficient powers vested in the court under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. It has also been held by the Hon'ble Supreme Court that as far as CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 9/30 possible, a substantive right would not be allowed to be defeated on account of procedural irregularity which is curable. In the case before the Hon'ble Supreme Court, the United Bank of India had filed a suit seeking recovery of loan advanced to the Respondent and the Bank had failed to produce during the trial of the suit, a proper document authorising the person who had signed the plaint on record. The Hon'ble Supreme court referred to the provisions of Order VI Rule 14 and Order XXIX Rule 1 CPC and held as follows:-
"Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it wold appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 CPC, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 CPC.A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases were pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer". (emphasis applied)
14. The aforesaid judgment of the Hon'ble Supreme Court was also followed by the Hon'ble Delhi High Court in the case titled as M/s Sangat Printers Pvt Ltd Vs. Wimpy International Ltd, date of decision 17.01.2012 in RFA No.657/2003. In the said case, the Hon'ble Delhi High Court has held that the cases filed by Corporations/Companies should not be dismissed on technical ground with respect to validity of institution. It has been further observed by the Hon'ble Delhi High Court that as long as the suit is contested to the hilt, it ought to be held that the suit is validly instituted and filed.
CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 10/3015. Now in the present case even if it is held that the initial Board Resolution filed on record contained only signatures of only one Director, the fresh Board Resolution dated 17.11.2023 filed on record and given Ex.PW1/C makes it clear that now two Directors have authorised Sh. Anup Kumar to file the present suit on its behalf. Ld. Counsel for the Defendant has not disputed that in view of the judicial dicta referred to by this Court, the Plaintiff Company was duly within its rights to ratify the filing of the suit even at a later stage. His submission now is that the person Sh. Pankaj Yadav could not have been a Director in the Plaintiff Company and that this Court must hold an inquiry as to how without holding any shares in the Plaintiff Company, the said person his acting as Director of the Plaintiff Company. It will be relevant herein to mention that Ld.Counsel for the Plaintiff, during the course of final arguments, had placed on record, the Company information with respect to the Plaintiff Company available on the site of Ministry of Corporate Affairs and had pointed out that the same clearly records that Sh. Anup Kumar, Sh. Pankaj Yadav and Sh. Tu Xiao are the three Directors of the Plaintiff Company. Ld. Counsel for the Plaintiff has also pointed out that in terms of Section 149 and 152 of the Companies Act, 2013, there is no requirement that a person should hold any shares in a company, before he can be appointed as a Director in the said company. In the considered opinion of this Court, in view of the MCA records filed on record and in view of the statutory provisions of the Companies Act, there is no merit in the contention of Ld. Counsel for the Defendant that Sh. Pankaj Yadav has played any fraud upon the Court or that he was not authorised to pass a Board Resolution authorising Sh. Anup Kumar to file the present suit. In such view, this Court is of the considered opinion that the suit has been filed by an authorised person on behalf of the Plaintiff Company.
CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 11/3016. Further as regards the issue of territorial jurisdiction of this Court to try the present suit, though the said issue was not pressed before this Court at the time of framing of issues, Ld. Counsel for the Defendant, Sh. Bagga in his written submissions has again raised the said issue. Suffice to state that in view of the incorporation certificate of the Defendant company placed on record by DW-1, Sh. Rakesh Arora the Director of the Defendant company which makes it clear that the registered / Principal office of the Defendant Company is in Kalkaji, clearly this Court would have the territorial jurisdiction to try the present suit. Section 20 of Civil Procedure Code makes it clear that a suit against a corporation can be instituted in a Court within the local limits of whose jurisdiction the Principal office of the corporation is situated.
Issue No.1:
17. As narrated hereinabove, it is the assertion of the Plaintiff that it had been supplying goods to the Defendant from time to time and had been maintaining a running account with respect to the sales made and the payments received and that the Defendant has failed to pay the amount due against the total goods supplied to it. Alongwith the statement of account maintained by the Plaintiff, the invoices dated 19.08.2019, 05.09.2019, 27.09.2019, 12.10.2019 and 15.10.2019 vide which various goods were supplied to the Defendant Company have also been filed alongwith the plaint. Now in its affidavit filed for the purposes of admission and denial, the Defendant has only denied the invoices dated 27.09.2019, 12.10.2019 and 15.10.2019 and has admitted the remaining invoices i.e. dated 19.08.2019 and 05.09.2019 vide which goods worth Rs.1,60,480/- and Rs.2,88,864/- were supplied to it. Ld. Counsel for Plaintiff had submitted that the invoice dated 19.08.2019 for Rs.1,60,480/- already stood paid by the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 12/30 Defendant and is not included in the outstanding amount claimed by the Plaintiff and the same was filed only to support the entries made by the Plaintiff in its statement of account. As regards the invoice dated 05.09.2019 for an amount of Rs.2,88,864/-, it will be relevant to mention that during the trial of the present case, the Defendant had stated before this Court on 22.11.2022 that he will transfer the said amount to the Plaintiff within two working days thereof. The A/R of the Plaintiff on the said date had accepted the said tender subject to the condition that the Plaintiff would still be pressing for the interest payable on the delayed payment. The transfer of the said amount to the Plaintiff's account on 24.11.2022 has been confirmed by the Plaintiff's Counsel during the course of final arguments and therefore the only issue that remains with respect to the said invoice amount is the interest that the Plaintiff is entitled to. Thus, the dispute between the parties remains only with respect to the three invoices namely Invoice No. CF/2019-20/0386 of Rs.3,21,923/-, Invoice No.CF/2019-20/0438 of Rs.4,26,074/- and Invoice No.CF/2019-20/0449 of Rs.9,468/- and the interest that the Plaintiff would be entitled to on the amount of Rs.2,88,864/-.
18. Now PW1 in his affidavit filed for the purposes of evidence has deposed that the goods mentioned in the aforementioned three invoices were duly supplied to the Defendant. In support of this deposition, three documents have been filed on record which have been given Ex.PW1/3 (i), Ex.PW1/3 (ii) and Ex.PW1/3 (iii). Ld. Counsel for the Plaintiff has submitted that as per the case of the Plaintiff alongwith the delivery of the goods, the tax invoices raised by the Plaintiff Company used to be sent to the Defendant Company and that the Defendant Company used to acknowledge the receipt of goods on a copy of the said tax invoices and that CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 13/30 Ex.PW1/3 (ii) and Ex.PW1/3 (iii) are such copies of the tax invoices which contain an acknowledgment of receipt of goods by the Defendant Company. She has further pointed out that PW1 in his cross-examination has categorically deposed that on Ex.PW1/3 (ii), the stamp of the Defendant Company alongwith acknowledgment of receipt appears at point A and similarly the acknowledgment of receipt on Ex.PW1/3 (iii) appears also at point A on the said document. She has further pointed out that PW1 in his cross-examination has also explained that the goods vide the aforementioned two invoices were delivered by the office boys of the Plaintiff Company at the Defendant's office. As regards Ex.PW1/3 (i), Ld. Counsel for the Plaintiff has submitted that the goods mentioned therein were sent through Blue Dart Courier and the backside of the document Ex.PW1/3 (i) reflects that the Plaintiff Company had duly filled the e-way bill at the site prescribed by the Government of India in this respect namely https//ewaybillgst.gov.in/BillGeneration/EwayBill. She further points out that the said electronic record is certified by the certificate tendered by PW1 under Section 65-B of the Indian Evidence Act (as was in force at the time of deposition). She further submits that alongwith the said e-way bill, the Plaintiff has also placed on record the shipper's copy that it received from the courier company regarding the delivery of the consignment at the office of the Defendant (the said copy is a part of Ex.PW1/3 (i)) . It is therefore her contention that the said documentary evidence and the statements given by PW1 in his cross-examination explaining how the goods were duly delivered at the office of the Defendant is sufficient for this Court to hold that the Plaintiff has discharged the onus of proving that the goods mentioned in all the aforementioned three invoices were duly delivered at the office of the Defendant.
CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 14/3019. Now the first ground on which the said Ex.PW1/3 (i), Ex.PW1/3 (ii) and Ex.PW1/3 (iii) are being challenged by the Defendant are that the Plaintiff has not filed on record any written purchase orders purportedly placed by the Defendant upon the Plaintiff on the basis of which it had raised the said invoices. In the considered opinion of this Court, the mere fact that there are no purchase orders proved on record by the Plaintiff, is not at all sufficient to hold that the Defendant had never placed orders upon the Plaintiff for the goods delivered against the aforementioned invoices. This is so because the own witness of the Defendant, DW1, Sh. Rakesh Arora, Director of the Defendant Company, in his cross-examination has admitted that purchase orders were never formally placed in writing and that he used to place orders upon the Plaintiff through WhatsApp or through mail. However when asked to produce such orders given through mail or through WhatsApp, he has chosen to state that his mobile phone has changed and he is not sure whether or not the mails are available in the office of the Defendant. It is relevant to note that even for the two invoices namely 19.08.2019 and 05.09.2019, which have been admitted by the Defendant, this witness has chosen not to produce the orders placed by him through mail or through WhatsApp to support his testimony. In view thereof, in the considered opinion of this Court, it is highly probable that the Plaintiff is right in asserting that the purchase orders were placed upon it telephonically only and that therefore it does not have in its possession written purchase orders.
20. The second ground of challenge to the aforementioned invoices, as per the submission of Ld. Counsel Sh. Bagga is that since the Plaintiff has placed on record only the photocopies of the invoices containing the asserted acknowledgment of receipt by the Defendant, the same are inadmissible in CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 15/30 evidence, to prove the delivery of goods upon the Defendant Company. In the considered opinion of this Court, the said submission of Ld. Counsel for the Defendant cannot be accepted for it has been rightly contended by Ld. Counsel Ms. Agarwal that as per the case put forward by the Plaintiff, the original of these invoices are in the possession of the Defendant and that therefore the Plaintiff could have only produced the copies thereof. She has further also rightly pointed out that after the said invoices were tendered in evidence and were given exhibits, this Court had categorically asked the Ld. Counsel for the Defendant if he has any objection to the exhibition of the copies and Ld. Counsel for the Defendant had stated in the negative. DW1 in his cross-examination has also stated that the original of the invoices vide which goods were supplied by the Plaintiff to it remained in the possession of the Defendant. In view of such a statement given by DW1, even if the invoices Ex.PW1/3 (i, ii, iii), are being denied by the Defendant, the original of the same could not have been in the possession of the Plaintiff, once the Plaintiff has led sufficient evidence to prove that the goods vide the same were infact supplied to the Defendant. Let us now examine the said evidence led by the Plaintiff. As mentioned hereinabove, the deposition of PW1 is that the goods mentioned in invoices Ex.PW1/3 (ii) and Ex.PW1/3 (iii) were delivered at the office of the Defendant by the office delivery boys of the Plaintiff Company. On being questioned in this respect, during his cross- examination, this witness has explained that the vehicle No.HR 10L 6755 mentioned in the eway bill (printed on the back side of Ex.PW1/3 (ii)) belongs to the employee / sales person of the Plaintiff, one Sh. Pankaj and that since the Defendant Company had wanted immediate delivery of the goods mentioned in the said invoice, the office boy Ganesh was sent immediately for the delivery of goods in the vehicle belonging to Pankaj. Similarly with respect to the goods mentioned in Ex.PW1/3 (iii), the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 16/30 deposition of this witness is that it was sent through a delivery boy of the Plaintiff Company only. When further questioned as to who from the Defendant Company received the said goods, PW1 has deposed that the goods sent and mentioned in Ex.PW1/3 (ii) were received by the authorised representative of the Defendant whose signatures alongwith the stamp of the Defendant Company appear at point 'A' on Ex.PW1/3 (ii) , but that he cannot tell the name of the said authorised representative. As regards the goods sent to the Defendant vide Ex.PW1/3 (iii), the deposition of PW1 is that the same were also received by the authorised representative of the Defendant Company, whose name Daya appears at point 'A' on Ex.PW1/3
(iii). Now in its written statement the stand taken by the Defendant Company is that both the invoices Ex.PW1/3 (ii) and Ex.PW1/3 (iii) are forged and fabricated. Further in the cross-examination of PW1 it has been suggested to him that the stamp of the Defendant Company appearing on Ex.PW1/3 (ii) is not that of the Defendant and the Plaintiff has forged the said stamp and that no employee by the name of Daya works in the Defendant Company and that the endorsement on Ex.PW1/3 (iii) has also been forged and fabricated by the Plaintiff. DW1, Rakesh Arora, the Director of the Defendant Company in his affidavit filed for the purposes of evidence has also similarly deposed that the invoices in dispute are fabricated and forged. Now when this witness, DW1 Rakesh Kumar, in his cross-examination, is questioned with respect to the endorsements of receipts appearing on Ex.PW1/3 (ii) and Ex.PW1/3 (iii), he states as follows:-
It is incorrect to suggest that Ex.PW1/3 (ii) page 33 bears the stamp of the Defendant Company acknowledging the receipt of goods. Vol. we do not use the stamp of authorised representative at the time of receiving goods. We use the stamp of 'inward' and 'outward' . I am not aware if such a defence has been taken by us in our written statement.
On being shown the ledger account filed by the Defendant Company, I state that the same bears the stamp of the authorised representative of the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 17/30 Defendant Company. Since Ex.PW1/3(i) page 33 is not an original receipt, I cannot comment if the same bears the stamp of the AR of the Defendant or not.
It is correct that in my affidavit of admission/denial filed, I have admitted the Invoice dated 05.09.2019 for Rs.2,88,864/-. However, I have not admitted that the goods sent through the said invoice were received by my employee Daya. The original of the said invoice is in the possession of the Defendant Company and it must be lying in its office. According to me, the goods against the invoice dated 05.09.2019 were received by our security guard. His receipt must be mentioned on the original invoice kept in the office of the Defendant Company. I can produce the same if directed by the Court.
The aforementioned reflects that the receipt of Ex.PW1/3 (ii) is being denied on behalf of the Defendant on the ground that the stamp appearing as acknowledgment of receipt of said invoice does not belong to it and Ex.PW1/3 (iii) is being denied on the ground that Daya was never an employee of the Defendant Company.
21. In the considered opinion of this Court, the Defendant has taken a false stand with respect to both the said invoices. This is for the following reasons;
a. It cannot be at all ignored that both the invoices that stand admitted by the Defendant in its affidavit of admission and denial (dated 19.08.2019 and 05.09.2019 for Rs.1,60,480/- and Rs.2,88,864/- respectively) also mention, just like the disputed invoices Ex.PW1/3 (ii) and Ex.PW1/3 (iii), that the delivery was 'by hand'. As such the testimony of PW1 that the Plaintiff, on some occasions on request of the Defendant, used to deliver goods to the Defendant, through its delivery boys is to be believed. Further just like the endorsement of 'quantity received' by Daya on Ex.PW1/3 (iii), on one of the admitted invoices dated 05.09.2019, there is a receipt mentioning 'Quantity Checked - Received' and against the said endorsement it is the name of Daya only that appears. When the attention of DW1 is drawn to the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 18/30 endorsement made by Daya on the admitted invoice dated 05.09.2019, he chooses to state that the admitted invoice on record is only a photocopy and that the original of the same is in the possession of the Defendant Company and that the said original would show that it is not Daya but the security guard of the Defendant Company who would have received and signed the acknowledgment. However it is a matter of record that the said original invoice assertedly bearing the receipt by any other person than Daya has not been produced in Court at any stage by the Defendant.
b. When DW1 in his cross-examination was pointed out that the stamp of the Defendant Company appearing in Ex.PW1/3(ii) is the same that is affixed on the own document of the Defendant namely the ledger account Ex.DW1/C, he simply then stated that he does not want to comment anything more, for Ex.PW1/3 (ii) is not the original receipt. Admittedly, Ex.PW1/3 (ii) is an extra copy of the tax invoice, for as per the Plaintiff, the original of the said tax invoice was handed over to the Defendant and that therefore the Plaintiff had in its possession only the photocopy of the said tax invoice on which the stamp of the Defendant appears in original. In such view, the statement of DW1 that since Ex.PW1/3 (ii) is not an original receipt and therefore he cannot comment on the same, is nothing but an evasive answer.
22. Despite the aforementioned statements made by DW1 in his cross- examination which show the falsity of the pleas of the Defendant, Ld. Counsel for the Defendant has however sought to contend that the Plaintiff has failed to prove the receipt of goods upon the Defendant Company beyond all reasonable doubt and according to him, the Defendant was under
no duty to prove that his defence was true. He has pointed out that the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 19/30 Plaintiff has neither produced the office boys who had assertedly delivered the goods to the Defendant Company nor the person in whose vehicle the goods were delivered and that therefore this Court must place no reliance upon the documents Ex.PW1/3 (ii) and Ex.PW1/3 (iii). I am afraid that said contention of Sh. Bagga cannot be accepted. Present is not a criminal case where the Plaintiff is required to prove its case beyond all reasonable doubt. It is no longer res integra that the rule of preponderance of probabilities is the basis for the burden of proof in civil cases and a Plaintiff is not required to prove its case beyond all reasonable doubt. Now to discharge the aforementioned onus, the Plaintiff has placed on record whatever documents that were in its possession and PW1 has also withstood the test of the cross- examination. He has explained that the office boys have left the services of the Plaintiff Company and that his deposition is on the basis of the records maintained by the Plaintiff Company in its ordinary course of business. The answers given by this witness in his cross-examination have been narrated hereinabove and the same do explain the contents of Ex.PW1/3 (ii) and Ex.PW1/3 (iii). In such view, the onus of proving that the documents produced by the Plaintiff were forged and fabricated shifted upon the Defendant Company. It is the own case of the Defendant Company that apart from the three invoices in dispute, it had on other occasions received the goods sent by the Plaintiff Company and had also made payments towards the same. It is also the own deposition of DW1 that the originals of the invoices sent alongwith the goods were kept in possession of the Defendant Company and the Plaintiff was given the acknowledgment of receipt of goods on a copy thereof. In such view, the best possible evidence i.e. the original of the invoices which are not disputed by the Defendant, were in the possession of the Defendant and therefore therefore should have been placed on record by the Defendant to substantiate its defence that at the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 20/30 time of receiving of goods vide the said admitted invoices, the Defendant used to affix a stamp of 'inward' and 'outward' or that on the admitted invoice dated 05.09.2019 (one of the admitted invoices), it was not the signature of Daya but the signature of a security guard that was made on the receipt given to the Plaintiff. On its failure to do so, in the considered opinion of this Court, on the preponderance of probability, it is to be held that the goods vide the aforementioned two invoices in dispute, were infact supplied to the Defendant and that it is the Defendant who is taking a false stand that it never ordered for the goods mentioned in the aforementioned invoices nor did it receive the same.
23. Coming now to the invoice Ex.PW1/3 (i), as per the case put forward by the Plaintiff, the goods mentioned in the said invoice were delivered to the Plaintiff through Blue Dart Courier. The Plaintiff has placed on record the shipper's copy of the courier sent through Blue Dart, which was in its possession [the same is a part of Ex.PW1/3 (i)]. The same mentions the amount of the invoice as Rs.3,21,923/- and also mentions that the consignment consisted of LED Chips in two boxes. Now the first page of Ex.PW1/3 (i) i.e. the invoice bearing No.CF/2019-20/0386 dated 27.09.2019 is also of the value Rs.3,21,923/- and mentions the goods as LED Chips. It is also to be noted that the mobile number mentioned on the shipper's copy 9540667867 is admitted by DW1 to be the mobile number of his employee Nizam. Despite the aforementioned, the Defendant has chosen to dispute the said receipt on the ground that its address is wrongly mentioned therein. The submission of Ld. Counsel for the Defendant was that since the address of the Defendant is mentioned on the said courier receipt as A-105, Sector 83, Noida instead of its actual address at A-151, Sector 83, Noida, the said receipt cannot be relied upon by the Plaintiff to prove the delivery of the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 21/30 goods mentioned in Ex.PW1/3 (i) through the said courier receipt. In order to explain the said discrepancy, the Plaintiff had summoned an official of the Blue Dart Express Ltd, who has been examined as PW2. This witness has produced before the Court the invoice generated by the aforementioned courier company showing that the Plaintiff had made various payments to the courier company including the payment for the booking of the aforementioned consignment and the said invoice has been given Ex.PW2/C. This witness has also stated before this Court that though the physical proof of delivery is no longer available with the courier company, the tracking report regarding the delivery of the goods, is available and that the same reflects that the packet booked by the Plaintiff was received by an official of the company Neo Neo Electrical (i.e. the Defendant herein). He has pointed out that the tracking report mentions that while receiving the same, the stamp of the company alongwith the employee code of the official who received it is also mentioned in the tracking report. The said tracking report has been given as Ex.PW2/B (iii). The witness PW2 has also explained that the packet would have been delivered at the very address that has been mentioned in the invoice. When asked to explain the discrepancy between the airway bill and the invoice, the witness PW2, the Regional Manager (Legal) Blue Dart Express Ltd. has stated the following facts:
The address of the consignee mentioned in the airway bill Ex.PW2/B (i) is not matching with the address given in the invoice Ex.PW2/B (ii) only because we receive shipments in bulk and the office boy might have inadvertently written a wrong address in the airway bill. Vol. only the house number is wrongly mentioned.
The packet was however delivered at the same address mentioned in the invoice and I say so because the tracking report Ex.PW2/B (iii) reflects the same. The said tracking report also reveals that the packet in the present case were received by an official of the company Neo Neon Electric and the same bears the stamp of the said company alongwith the employee code of the official who received it.CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 22/30
On Court's query: The person who had booked the article for delivery is different from the person who delivers the consignment. However, the person who books the consignment puts a sticker of the address of the consignee and the phone number of the consignee on the consignment packet. The delivery boy refers to the said sticker for verifying the address and the phone number of the consignee.
24. Though it has been rightly pointed out by Ld. Counsel Sh. Bagga the computerised tracking report is not the proof of actual delivery of the consignment of goods at the Defendant's office, by the courier company, the said computerised record is supported by the certificate tendered by PW2 under Section 65B of the Indian Evidence Act (as was in force at the said time) and this Court has no reasons to doubt the same. Such computerised records are admittedly being maintained by the courier company in the ordinary course of its business and PW2 has explained that though the physical proof of delivery is not now available with the courier company, the tracking report is prepared on the basis of the physical proof of delivery made by the courier company. The customer code mentioned on the said receipt 637243 is the same that is mentioned on the tracking report Ex.PW2/B. This Court is therefore satisfied that the tracking report Ex.PW2/B corresponds to the shipper's copy of the consignment [part of Ex.PW1/3(i)] and PW2 has been able to satisfactorily explain the typing error that has crept in the receipt [page 2 of Ex.PW1/3 (i)].
25. At this stage, it would be relevant to take note of another contention of Ld. Counsel Sh. Bagga namely that since 'Part B' of Ex.PW1/3 (i) was not filled and the bill mentions that the same is not valid for movement shows that the goods were never sent to the Defendant. In reply to the said contention, Ld. Counsel for the Plaintiff had pointed out that the goods mentioned in the said invoice / eway bill as per the case of the Plaintiff was sent through courier and that is why the 'Part B' thereof was not filled as the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 23/30 Plaintiff Company was not choosing to transport the goods mentioned in Ex.PW1/3 (i) to the Defendant on its own and was sending the same through courier and therefore the eway bill mentions that it is not raised for the purposes of movement of goods. In the considered opinion of this Court, the contention of Ld. Counsel for the Plaintiff has much force and it is to be noted that Ld. Counsel for the Defendant has not placed on record any rules in support of his contention that even if the consignment is sent through courier, it is the consignee who is bound to fill up part B of the eway bill. The further contention of Ld. Counsel Sh. Bagga that since the GST records have not been produced by the Plaintiff, before this Court, it must be taken that no goods have been supplied to the Defendant, in the considered opinion of this Court, is also not sufficient to negate the case of the Plaintiff. PW1 in his cross-examination has explained that the GST challan / return was not being filed separately by the Plaintiff Company, with respect to each and every invoice and a monthly return was being filed by the Plaintiff with respect to all the invoices raised by it in a particular month. The said explanation was not challenged by Ld. Counsel for the Defendant and therefore there was no occasion for the Plaintiff Company to have produced the monthly GST returns.
26. In view of the discussion hereinabove, this Court is therefore of the considered opinion that the Plaintiff has also been able to prove that it had supplied the goods to the Defendant as mentioned in the invoice Ex.PW1/3
(i). It does appear that the Defendant has taken a false defence that it had never received the goods mentioned in Ex.PW1/3 (i), Ex.PW1/3 (ii) and Ex.PW1/3 (iii). This Court cannot ignore the fact that the legal notice sent by the Plaintiff Company to the Defendant remained unanswered. PW1 in his cross-examination has admitted that the email ID mentioned in the legal CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 24/30 notice Ex.PW1/6 is that of the Defendant Company. There is nothing on record to suggest that the said legal notice would not have served upon the Defendant Company through email. Now when despite receiving the legal notice the Defendant Company chooses not to reply to the Plaintiff or to ask for its two undated cheques purportedly given a security to the Plaintiff, the probability again is that the Defendant was aware that it is liable to pay its outstanding to the Plaintiff. It is also to be noted that despite being aware that the cheque issued by it for Rs.2,88,864/- for the goods received through invoice dated 05.09.2019, had been dishonoured, the Defendant Company for almost two years neither tendered any amount to the Plaintiff Company nor gave any explanation for such a conduct. Even during the trial of this case, all that was stated on behalf of the Defendant Company with regard to the said dishonoured cheque was that some reconciliation of accounts was pending and that therefore the cheque was not got cleared. No efforts were made to explain as to what was the reconciliation of accounts that the Defendant was referring to in this respect. Such kind of conduct on behalf of the Defendant Company also makes the case of the Plaintiff much more probable.
27. It will also be relevant to advert at this stage to another contention of Ld. Counsel Ms. Santwana. She has sought to contend that since DW1 has admitted in his cross-examination that his employee had sent an image of a cheque dated 20.11.2020 for an amount of Rs.8 Lacs in favour of the Plaintiff, the claim of the Plaintiff that the Defendant was always acknowledging its liability but was postponing the payment on one or the other pretext, must be believed. She has pointed out that DW1 in his cross- examination admitted that his employee Nizam did send through WhatsApp an image of the cheque bearing No.000471 dated 20.11.2020 in favour of the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 25/30 Plaintiff for an amount of Rs.8 Lacs. She has submitted that though the said witness has then volunteered to state that the said cheque was not in reference to the amount due to the Plaintiff and that it was with respect to another bulk order that the Defendant Company wished to place upon the Plaintiff, he again admitted that he had no documentary proof in respect of the said bulk order. In reply to the said contention, Ld. Counsel for the Defendant has sought to contend that since the WhatsApp with which the DW1 was confronted was never filed on record by the Plaintiff, the same should therefore be not read in evidence and no adverse inference in this respect can be drawn against the Defendant.
28. In the considered opinion of this Court, the Plaintiff was not bound to have filed alongwith the plaint, the WhatsApp image of the aforementioned cheque, for it is a document that could have also been put in cross- examination of the Defendant's witness. Sub-rule (1)(c) of Rule 1 of Order XI CPC (as amended by Schedule to the Commercial Courts Act), makes it clear that the Plaintiff is not required to file those documents alongwith the plaint which it intends to use for the cross-examination of the Defendant's witnesses. When DW1 has chosen to depose in his affidavit filed for the purposes of evidence that there was no outstanding amount to be paid by the Defendant Company to the Plaintiff, the Plaintiff was entitled to put to this witness that as to what would be then the reason that he had sent the WhatsApp image of a cheque for Rs.8 Lacs to the Plaintiff. It is to be noted that DW1 in his cross-examination did not dispute the fact that his employee did send the image of a cheque for Rs.8 Lacs. Having said so, in view of the fact that the Plaintiff has failed to produce the certificate under Section Section 63 of the Bharatiya Sakshya Adhiniyam, 2024, the document namely the Whatsapp image cannot be considered by this Court. However in the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 26/30 considered opinion of this Court, even if the same is not read in evidence, the fact remains that DW1 admitted in his cross-examination that his employee had sent a WhatsApp image of a cheque of Rs.8 Lacs to the Plaintiff and apart from his bald statement that the image of the cheque was sent for another bulk order that he wished to place upon the Plaintiff, there is not an iota of evidence whatsoever produced by the Defendant in this respect. In such view, the preponderance of probability is that the image of a cheque for Rs.8 Lacs was sent on behalf of the Defendant company, to assure the Plaintiff that the Defendant is keen to clear its outstanding dues which are the subject matter of this suit only. It is to be borne in mind that as per the own case of Defendant Company it had not cleared the payment of the invoice dt 05.09.2019 for Rs.2,88,864/- and the cheque given by it towards the said invoice had been dishonored. In such circumstances it is hardly probable that the plaintiff Company would have been even entertaining DW1 with respect to any other bulk order, more so when it had chosen to issue a legal notice to the Defendant Company asking for its dues.
29. In view of all the attendant facts and circumstances discussed hereinabove, this Court is of the considered opinion that on the preponderance of probabilities, the Plaintiff has been able to prove that it had supplied goods to the Defendant vide invoices dated 27.09.2019, 12.10.2019 and 15.10.2019 and therefore this issue is decided in favour of the Plaintiff.
Issue No.2:
30. In view of the findings on issue No.1, the Plaintiff is held entitled to the principal amount of Rs.7,57,465/- which is the total value of the three invoices dated 27.09.2019, 12.10.2019 and 15.10.2019. (Though as per the CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 27/30 deposition of PW1, a sum of Rs.8,07,725/- remains to be paid by the Defendant as per the statement of account maintained by the Plaintiff, during the final arguments, Ld. Counsel for the Plaintiff had submitted that the Plaintiff is only pressing for a decree for the principal amount of Rs.7,57,465/- based on the aforementioned three invoices.) As regards the interest payable on the said amount, Ld. Counsel for the Plaintiff has submitted that the same should be allowed @12% per annum, despite the fact that there was no agreement between the parties regarding the rate of interest to be paid on delayed payments. She has pointed out that in the legal notice issued by the Plaintiff to the Defendant, the Plaintiff had demanded interest @24% per annum and that the said demand is sufficient for this Court to award interest @12% per annum.
31. I have considered the said submissions of learned Counsel for the Plaintiff. The Hon'ble Delhi High Court in the cases CS (OS) 209 / 2016 titled as Gopesh Mehta Vs Swift Initia Pvt. Ltd. and RSA No. 195 / 2004 titled as Sh. Zile Singh Vs. Sh. Mangloo Ram Bansal, has held that even if there was no agreement between the parties with respect to the payment of interest on delayed payments, a Plaintiff is entitled to claim interest on the principles of equity, justice and good conscious. In both the said cases, the Hon'ble High Court on the basis of the aforementioned principles, awarded interest in favour of the Plaintiff, from the date of the legal notice issued to the Defendant.
32. Keeping in view the said judicial dicta and the legal notice dated 03.11.2020 issued by the Plaintiff Company to the Defendant Company (which is deemed to have been duly served upon the Defendant Company through email as per the evidence led) claiming interest from them, interest CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 28/30 on the principal amount adjudged of Rs.7,57,465/- is allowed @ 10% p.a. from 03.11.2020 till the date of filing of the suit i.e. 09.09.2021.
33. As regards pendente lite and future interest, the proviso to Section 34 of CPC makes it clear that where the liability in relation to the sum adjudged by a Court has arisen out of a commercial transaction and there was no contractual rate of interest agreed between the parties, the Court is entitled to award pendente lite and future interest at the rate at which monies are lent or advanced by nationalized banks in relation to commercial transactions. Taking into consideration that many suits are pending in this Court wherein nationalized banks are claiming recovery of unpaid loan amounts along with interest at the rate of 10% per annum, this Court hereby awards pendente lite and future interest at the rate of 10% per annum.
34. As such, the suit of the Plaintiff Company is hereby decreed against the Defendant Company for an amount of Rs.7,57,465/- (Rupees Seven Lakhs Fifty Seven Thousand Four Hundred Sixty Five Only). Interest on the principal amount adjudged of Rs.7,57,465/- is allowed @10% per annum from 03.11.2020 till the date of filing of the present suit i.e. 09.09.2021.
Pendente lite and future interest are awarded at @10% per annum, on the principal amount adjudged of Rs.7,57,465/-. In addition, the Plaintiff is also held entitled to the interest @ 18% per annum on the amount of Rs.2,88,864/- for the period 05.11.2019 to 24.11.2022. The said amount has been awarded taking into consideration the statutory provisions of Section 80 of the Negotiable Instruments Act. The said Section lays down as follows:
"Section 80 - The Negotiable Instruments Act, 1881
80. Interest when no rate specified. - When no rate of interest is specified in the instrument, interest on the amount due thereon shall, [notwithstanding CS (COMM) NO. 380/2021 Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 29/30 any agreement relating to interest between any parties to the instrument], be calculated at the rate of 18[eighteen per centum] per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs. Explanation.--When the party charged is the indorser of an instrument dishonoured by non- payment, he is liable to pay interest only from the time that he receives notice of the dishonour."
35. In the present case, the Defendant is not disputing that in consideration of the goods received vide invoice dated 05.09.2019, it had issued a cheque for Rs.2,88,864/- dated 05.11.2019 in favour of the Plaintiff and that the said cheque was dishonoured on presentation. It is also not disputed that the said amount has only been tendered to the Plaintiff on 24.11.2022. No explanation has been given as to why the cheque amount was not paid to the Plaintiff when admittedly the Defendant had received the goods worth Rs.2,88,864/- and was aware that its cheque dated 05.11.2019 has been dishonoured. In view of such facts and the statutory provision referred to hereinabove, the Plaintiff is hereby held entitled to interest @18% per annum on the amount of Rs.2,88,864/- w.e.f. 05.11.2019 to 24.11.2022.
36. Costs of the suit are also allowed. Decree Sheet be prepared accordingly. This file be consigned to Record Room.
Digitally signed by ANU ANU GROVER
GROVER BALIGA
Date: 2024.09.10
BALIGA 16:52:45 +0530
Announced in the Open Court (Anu Grover Baliga)
on 6th September, 2024 District Judge (Commercial Court-04)
South-East District, Saket Courts
New Delhi
CS (COMM) NO. 380/2021
Changfang Semiconductor Pvt. Ltd Vs. Neo-Neon Electricals Pvt. Ltd. Page 30/30