Delhi District Court
M/S V2 Retail Limited vs M/S Rachna Overseas Pvt Ltd on 1 April, 2019
IN THE COURT OF VIPLAV DABAS,
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
Counter Claim No:593450/2016
M/s V2 Retail Limited
Plot No.8, Pocket2, BlockA,
Khasra No. 335/336, NH8,
Rangpuri, New Delhi110037. ...........Plaintiff
Versus
M/s Rachna Overseas Pvt Ltd
Regd Office at 10101011, Pragati Tower,
26, Rajendra Place,
New Delhi110008. ............ Defendant
Date of institution of suit : 12.03.2015
Date of pronouncement of Judgment : 01.04.2019
COUNTER CLAIM ON BEHALF OF M/S V2 RETAIL LTD FOR
RECOVERY OF RS. 1,93,400/ IN LIEU OF DAMAGES CAUSED BY
THE GOODS SUPPLIED BY COUNTER DEFENDANT.
JUDGMENT
1. The present Counter Claim is filed for recovery of Rs. 1,93,400 in lieu of damages caused by the goods supplied to the counter claimant by the Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 counter defendant. The brief facts of the present counter claim are that the counter claimant company is a limited company duly incorporated under the Indian Companies Act 1956 with its registered office at Plot No. 8, Pocket 2, BlockA, Kh. No. 335/336, NH8, Rangpuri, New Delhi110037 which is indulged in the retail business and the counter defendant is also a company having its registered office at 10101011, Pragati Tower, 26, Rajender Place, New Delhi110008, which is manufacturing all type of pricing and barcode tag and Thermal Transfer Ribbon besides trading in Barcode Equipment & Labeling, Thermal Printers etc. It is further averred that Sh. Rajeev Singh, employee of the counter claimant company has been duly authorised by board of Directors vide Board Resolution dated 29.09.2014 to institute, file, sign, verify the plaint and look after the case thereof, that the counter claimant company had business relationship with counter defendant company and that the counter claimant company ordered counter defendant company to supply some goods to the counter claimant company as per order placed before it & that as per order, the counter defendant company had dispatched the goods to the counter claimant company from time to time under various invoices. It is further averred that as the counter defendant company had not delivered the desired goods with correct bill & that the counter claimant company had already intimated to the counter defendant company for not delivering the goods but despite intimation, the counter defendant company delivered the defective goods.
It is further averred that due to the use of bad material supplied by the Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 counter defendant company, the printers of counter defendant company got damaged, that upon several requests the representatives of counter defendant company had visited the premises of counter claimant company and assured that he will put efforts to repair the printers and if it does not work, the damaged printers will be replaced with the new printers of the same quality at their own costs within 30.09.2013, that employee of the counter claimant company requested the counter defendant company for repairing the printers and if it does not works, to replace the damaged printers with the new printers, that in his reply the employee of the counter defendant company demanded the pictures of damaged printers via email dated 16.10.2013 and the employee of counter claimant company sent the pictures of damaged printers on the same date to counter defendant company and that when the counter claimant company did not receive any satisfactory answer from counter defendant company, legal notice was sent to the counter defendant company but to no avail.
It is further averred that despite repeated requests and reminders the counter claimant company neither repaired the damaged printers nor replaced the non working printers and chose to file the counter suit on false and fabricated grounds. It is further averred that due to the use of bad material supplied by the counter defendant company, the 48 barcode scanners and one barcode printer Godex 1105 got damaged, that each barcode scanner is of Rs. 3800/ and on the basis of same the total damage value is Rs. 1,82,400/, that the value of Barcode printer Godex 1105 is Rs. 11,000/ and that as such the total damage value is of Rs. 1,93,400/ besides Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 the damage caused in the form of work done from outside due to damage of our printers. It is further averred that the counter defendant company is liable to pay damages caused to the counter claimant company to the tune of Rs. 1,93,400/ along with interest at the rate of 9% per annum. It is further averred that counter claimant had sent legal notice dated 02.03.2015 by speed post which was duly served on 04.03.2015 but inspite of receipt of the same, the counter defendant company failed even to respond the same or to make the payment.
2. It is further stated in the plaint that the cause of action has arisen in favour of the counter claimant and against the counter defendant when the counter claimant company requested the counter claimant company for repairing and replacing the damaged printers and despite it, counter defendant company did not repair or replace the same, that it again arose on various dates when the counter defendant company supplied damaged goods to counter claimant company between 26.12.2012 to 16.02.2013, that it again arose on the date when the legal notice dated 16.10.2013 & 02.03.2015 was sent to counter defendant company and received by the counter defendant company and that cause of action is still continuing in view of the notice.
3. Reply to the counter claim was filed on behalf of counter defendant, wherein it is stated that the counter claim has not been signed and verified by a duly authorised person and hence liable to be dismissed, that the Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 counter claim has been filed on misconceived and false facts and is not based on the true facts, that the counter claimant has not approached this Court with clean hands and has suppressed the true facts, that counter claimant has not filed any bills/invoices with the counter claim by which period the printers were purchased and the warranty or guarantee if any had already been expired being one year from the date of purchase, therefore the question of claiming the value does not arise, that the printer picture enclosed with the counter claim is not of Godex 1105 but of Tec B452 which were never sold to the counter claimant, that there is no agreement between the parties regarding payment of any interest, that the counter claimant is not entitled to the interest claimed, that the counter claim is the counter blast and the amount claimed is time barred and the same is liable to be dismissed, that the counter claimant has filed the claim without any cause of action as nothing is due and payable by the counter defendant and that the counter claim is liable to be dismissed under the provisions of Order VII Rule 11 CPC.
In reply on merits, it is stated that the counter claimant had placed the written order bearing No. 5900050084 dated 16.01.2013, No. 5900050131 dated 19.01.2013, No. 6900076899 dated 08.02.2013 and No. 5900050564 dated 14.02.2013 respectively and all the orders are for Barcode Ribbon and not for printer as stated, which was received by the counter claimant to its entire satisfaction, that during the period from 26.12.2012 to 16.02.2013 only the ribbons were sold as per written purchase orders and not the printer as alleged, that no bad material or defective goods were ever supplied as Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 alleged in counter claim, that the letter dated 16.10.2013 was duly replied by the letter dated 31.10.2013 and further the legal notice dated 29.11.2013 demanding the amount of Rs. 80,392/ from the counter claimant was sent but even after receipt of the same, the counter claimant failed to pay the due amount to the counter defendant for which the Suit No. 534/2014 is pending, that no materials as alleged are sold to the counter claimant and therefore nothing is due and payable by the counter defendant, that the amount of Rs. 1,93,400/ claimed by the counter claimant is fake figure and a counter blast against the counter suit for recovery and that the counter defendant had lastly supplied the Ribbon and not printer as alleged as per the purchase order. It is further averred that the notice dated 02.03.2015 was duly replied, that there is no cause of action accrued to the counter claimant to file the present counter claim, that during the period 26.12.2012 to 16.02.2013, the purchase orders showed that the counter claimant had ordered for purchase of Barcode Ribbons and not for printers and that no cause of action has arisen to the counter claimant and the counter claim is liable to be dismissed.
4. On completion of pleadings, following issues were framed by Ld. Predecessor of this Court vide order dated 28.11.2016.
1.Whether the counter claimant is entitled to the decree for a sum of Rs. 1,93,400/ along with interest?OPP
2. Whether the counter claim is not maintainable being filed without any cause of action?OPD
3. Relief.
Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19Evidence:
5. Thereafter the matter was listed for Counter Claimant's evidence. In order to prove its case, Sh. Anup Kesari, Authorised Representative of Counter Claimant Company was examined as CCW1. CCW1 tendered his evidence by way of affidavit and relied upon the documents i.e. (Mark A) copy of board resolution, (mark B) copy of emails, (mark C (colly)) copies of pictures, (mark D) copy of legal notice and ((Ex.CCW1/4) postal receipt.
CCW1 was duly cross examined by Ld. Counsel for the non claimant and discharged.
Thereafter, the Counter Claimant's evidence was closed vide Order dated 15.12.2018 upon separate statement of AR of the counter claimant recorded in this regard.
6. Record shows that vide order dated 15.12.2018, the non claimants evidence which was recorded in the main connected suit titled as M/s Rachna Overseas Ltd vs M/s V2 Retail Ltd was adopted in this counter claim and separate statement of Ld. Counsels of both the parties to this effect was recorded in this regard and thereafter the non claimant's evidence was closed vide the aforesaid order.
7. Final Arguments advanced on behalf of both the parties were heard at length and the record as well as written submissions filed on behalf of counter claimant are carefully perused by this court.
Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19Issuewise Findings :
8. Considering the present factul matrix and the nature of issues, this court deems it fit to decide issue no.1 and 2 together as the same are inter related. Issue No.1 and 2 are reproduced as follows for the sake of clarity: Issue No. 1 Whether the counter claimant is entitled to the decree for a sum of Rs. 1,93,400/ along with interest?OPP Issue No.2
2. Whether the counter claim is not maintainable being filed without any cause of action?OPD
9. Onus to prove issue no.1 was cast upon the counter claimant and onus to prove the issue no.2 was cast upon the non claimant. The version of the counter claimant is that the non claimant company had supplied defective goods i.e Ribbon etc in different sizes to the counter claimant company due to which the counter claimant company suffered a loss of Rs. 1,93,400/ owing to damage of its pritners by using the substandard material. The version of the non claimant company is that the counter claimant company did not clear the outstanding dues to the tune of Rs. 80392/ pertaining to certain outstanding bills which the counter claimant company is liable to pay and the counter claimant company has filed the present counter claim as afterthought with a view to avoid the liability of the aforesaid amount of Rs. 80,392/ towards the price of the material supplied by non claimant. It is Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 further stated that the good quality material was supplied as per the requirement of the counter claimant company and the goods supplied were not defective.
10. Perusal of testimony of CCW1 shows that he deposed that he joined the counter claimant company on 17.05.2017. He stated in affidavit that its contents are true to the best of his knowledge and information and belief. Considering that CCW1 joined the company in the year 2017 and that the alleged transaction and correspondence took place between 20122015 he can not be deemed to having personal knowledge of the same. CCW1 nowhere stated that his knowledge is based on the record of counter claimant company which is a necessary requirement in the affidavit. This is a material omission indicating that testimony of CCW1 is of no consequence as his personal knowledge must be based on hearsay and the same is not derived from the record of the counter claimant company relied and exhibited in his testimony. It shows that documents relied by counter claimant company cannot be treated as proved. Furthermore, the copies of emails Ex. CCW1/2 and Ex. CCW1/3 which were put to PW1 in his cross examination in connected suit as PW1/D1 and Ex. PW1/D2 and were denied by him are not supported by any certificate under Section 65 B of Indian Evidence Act which is necessary for making them admissible in evidence as per law. This is a material omission on the part of the counter claimant company indicating that the record relied by it suggesting that the counter claimant company requested the non claimant company for Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 repairing / replacing the damaged printers with the new printers and the counter claimant company sent the pictures of the damaged printers alongwith the value of the 48 damaged bar code scanners as 182400 and bar code printer Godex 1105 as 11000, is not proved as per law being inadmissible.
11. It is further evident that the version of the counter claimant company that on account of defective goods they were not able to use their printers, that their printers got damaged due to the defective goods, that they suffered reduced output and that they were forced to get the work done from outside by incurring heavy expenses, was neither put to PW1 in the connected suit during the entire cross examination nor the relevant documents substantiating the said version like Ex. PW1/D1 and Ex. PW1/D2 have been proved as per law. It thus emerges that no effective and admissible evidence has been led on behalf of counter claimant company suggesting that the goods were defective and that the damage was caused to the printers due to the defective goods supplied by the non claimant company. It is further evident that no document or other evidence like bills/invoices suggesting the purchase of the printers, bar code scanner etc by counter claimant company and their prices which allegedly got damaged by the use of the stationary supplied by the non claimant company on the basis of which counter claimant company is claiming the estimated loss to the tune of Rs. 1,93,000/ has been filed or proved on record by the counter claimant company which is necessary to quantify the damages claimed. Similarly, no Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 document suggesting the outside source from which the work was got done and the rate at which the same was done by the outsourced agency is neither filed nor proved. It is reflected from record that even the account statement for the period from 20122013 mentioning the amount of the aforesaid damages claimed as well as the expenses incurred by the counter claimant company in getting the work done from outside, has not been filed by counter claimant company, which is generally maintained in ordinary course of business. The failure to file/prove aforestated necessary documents is a material omission creating grave doubt upon the said version of the counter claimant company as well as the factum of existence of a valid cause of action to claim compensation from the non claimant company.
12. Perusal of the record reveals that the factum of execution of transactions as stated by the non claimant is not disputed by the counter claimant company vide the various purchase orders Ex. PW1/D, Ex. PW 1/E, Ex. PW1/F, Ex. PW1/G and bills Ex. PW1/H, Ex. PW1/I, Ex. PW 1/J and Ex. PW1/L pursuant to which the goods were supplied. It is further evident that certain email dated 05.04.2013 Ex. PW1/N was sent by the non claimant company regarding the outstanding amount qua the present transaction which was duly replied by the counter claimant vide email dated 09.04.2013 Ex. PW1/O stating that it will be cleared within a week.
Record further shows that the non claimant company again sent an email Ex. PW1/P on 15.04.2013 to the counter claimant company mentioning that the non claimant company is awaiting the payment, in reply Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 to which the counter claimant company sent email Ex. PW1/Q saying sorry for the delay and stating that the matter will be cleared today itself. It is further evident that the counter claimant company issued letter Ex. PW1/R dated 16.10.2013 mentioning that their printers got damaged due to the substandard material supplied by the non claimant company which did not do the needful to compensate for the damages and to replace the computers as assured and that the said letter was duly replied by the non claimant company vide reply Ex. PW1/S dated 31.10.2013. It is further clear from the record that non claimant sent the legal notice dated 29.11.2013 Ex. PW 1/T thereby demanding the aforesaid outstanding amount in respect of aforesaid transactions. It is evident from the counter claim, written statement and the cross examination of the parties that the sending of the aforesaid letters, emails and replies have not been disputed by the parties thereby amounting to admission of the same.
13. At the very outset, it is pertinent to mention that both the non claimant and the counter claimant are limited companies and they have examined their authorized representatives in support of their version. It is further evident from the record that PW1 joined the non claimant company in 2015 whereas the transactions and all communications took place prior to his joining the non claimant company. It shows that he can not be assumed to be having personal knowledge about the facts of this case except the facts he may have got to know about the general manner/procedures followed by the non claimant company in conducting the business in usual course and Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 anything stated by him based on his personal knowledge except about the general facts is of no consequence. Perusal of the affidavit in evidence of PW1 shows that he has specifically verified that the contents of the affidavit in evidence are true and correct to his knowledge on the basis of record available. This verification clause fortifies the aforesaid observation and shows that PW1 testified on the basis of record.
14. Testimony of PW1 further reveals that he deposed in his cross examination that the document Ex. PW1/H, Ex. PW1/I, Ex. PW1/J, Ex. PW1/K and Ex. PW1/L are issued by the non claimant company and that the non claimant company supplied the stationary and not bar coding. PW1 further volunteered that Ex. PW1/H, Ex. PW1/I, Ex. PW1/J, Ex. PW1/K and Ex. PW1/L relate to software for bar code and stationary for bar code which is in consonance with the contents mentioned in these exhibits thereby showing that the non claimant company has affirmed its version that it does not supply bar coding but supplied stationary and software vide the said documents. PW1 further specified that stationary for bar code means label and ribbons used for printing bar codes labels and denied that items mentioned in the aforesaid exhibits are technical items by deposing that they are only stationary items. PW1 further deposed that items mentioned in the said exhibits are only stationary items and there are no chances of same being defective due to technical reasons, thereby rendering the counter claimant's version of supply of defective items which damaged the computer of the counter claimant company, nugatory. PW1 further deposed in the Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 cross examination that it is not correct that payments were made without any delay which probablizes the version of the non claimant company that the payments were not made regularly which is in consonance with the record of the non claimant company reflecting the alleged outstanding amount.
15. PW1 deposed that they did not supply defective goods in reply to the question as to what steps were taken after receiving the notice Ex. PW1/R which further affirms the non claimant's version as mentioned in the reply Ex.PW1/S that non claimant company was never asked by the counter claimant company to pick any rejected material and that the defective goods are not supplied to the counter claimant company. Record further shows that PW1 deposed that if the non claimant company receives any communication regarding the defective material they tell the customer to send the goods to the factory for checking which has gone unrebutted as no suggestion to negate the same was put to him. This testimony falsifies the counter claimant's version that the non claimant company ever assured to get the computers repaired or to replace the same as the non claimant company used to ask the customers to send the goods to its factory for checking instead of straightway asking for repairs or replacement as averred by the non claimant.
16. Record further shows that the counter claimant company put two emails Ex. PW1/D1 and Ex. PW1/D2 to PW1 during his cross examination to establish that the counter claimant company requested the Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 non claimant company for repairing / replacing the damaged printers with the new printers and the counter claimant company sent the pictures of the damaged printers alongwith the value of the damaged bar code scanner and bar code printer Godex 1105 upon which PW1 replied that the said email Ex.PW1/D1 was not issued by their company and the email Ex. PW1/D1 was neither issued by their company nor received by their company. This testimony shows that the counter claimant company failed to get the aforesaid emails admitted through PW1. Record shows that PW1 relied on various emails supported with certificate under Section 65 B of Indian Evidence Act i.e. Ex.PW1/L,Ex.PW1/M, Ex.PW1/N & Ex.PW1/O, wherein the non claimant company asked the counter claimant to clear the outstanding amount and the counter claimant company kept on assuring that the payment would be cleared soon. It is further evident that no suggestion to negate the genuineness or authenticity of the said emails was put on behalf of the counter claimant company, thereby amounting to the admission of the correctness of the same on behalf of the counter claimant company. It shows that the counter claimant company did not raise the issue of supply of defective goods or nondelivery of desired goods with correct bills at the very first instance and had rather admitted the liability towards payment of the price of the goods supplied indicating that desired goods with correct bills were supplied by the non claimant company. It is further admitted fact that after the said emails the counter claimant company issued letter Ex. PW1/R which was duly replied vide Ex. PW1/S wherein contents of Ex. PW1/R were denied. The very fact that the counter claimant company Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 issued Ex. PW1/R after affirming the outstanding amount and agreeing to pay the same shows that the letter Ex. PW1/R was result of an afterthought and that chances of the counter claimant's version of supply of defective goods due to which computers of counter claimant got damaged, being false cannot be ruled out.
17. Record further shows that non claimant company has duly proved the statement of account Ex. PW1/M by filing the necessary affidavit under Section 65 B of Indian Evidence Act, wherein the alleged amount of Rs. 80392 was shown outstanding. It is further evident that no specific suggestion was put on behalf of the counter claimant company to the effect that the account statement was false and fabricated which amounts to admission of genuineness of the account statement.
18. Ld. Counsel for counter claimant company argued that the non claimant's version is contradictory to ledger account as non claimant stated that it was supplying only products like Ribbon in different sizes, ribbons etc but in the ledger account relied by the non claimant company it is stated that printers were also supplied to counter claimant company during 2012 to 2013 and thus the non claimant's version is not reliable. Perusal of para No.1 and 2 of the plaint and para No.2 and 4 of the affidavit in evidence reveals that non claimant company has averred that it deals in manufacturing of all types of pricing and barcode labels, tag and Thermal Transfer Ribbon besides trading in barcode equipment and labeling, thermal printer etc and Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 that the counter claimant company started business dealing with non claimant company for purchase of products such as Ribbon in different sizes, ribbon etc.
19. It is evident that the non claimant company's version is that it had dealing with counter claimant qua ribbon etc, which indicates the dealing was not limited qua ribbon only but it was with respect to other goods including printers also as mentioned in the ledger. Furthermore, it is nowhere the case of the counter claimant company that the printers were never supplied by the non claimant company and thus the mentioning of printer transaction in the ledger is not justified. Considering the aforesaid observations and the present facts, this Court is of the view that there is no material contradiction in the version of non claimant and record/ledger relied by the non claimant company.
20. Ld. Counsel for counter claimant company argued that CCW1 has not been cross examined on the merits of the case and thus the version of counter claimant company has gone unrebutted. Keeping in view the fact that the counter claimant's version is based on record which has not been duly proved and the deposition of CCW1 based on his personal information/knowledge regarding the present transaction is merely hearsay as he admitted that he was not working with the counter claimant company at the time of alleged transaction, it is clear that deposition of CCW1 on the said aspect based on his personal knowledge and not record is of no Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19 consequence and non examination on the said deposition cannot amount to admission of CCW1's case.
21. It follows from the aforesaid discussion, analysis of testimonies facts and circumstances thus the counter claimant company failed to give rise to a preponderance of probability suggesting that product supplied by the non claimant was of substandard quality and by using the same, the printer of the counter claimant got damaged or that loss to the tune of Rs. 1,93,000/ was incurred by the non claimant company due to the said goods and that the counter claimant company is entitled to the claim of compensation as prayed whereas the non claimant company has been able to give rise a preponderance of the probability suggesting that there was no valid cause of action in favour of the counter claimant company to file the present counter claim and accordingly, the issue no.1 and 2 are decided in favour of the non claimant and against the counter claimant.
Issue No.3 Relief
22. In view of the findings on the aforesaid issues the present counter claim is hereby dismissed.
Parties to bear their own costs.
Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Digitally signed by VIPLAV VIPLAV DABAS
DABAS Date:
2019.04.03
17:02:50 +0530
Announced in the open Court (Viplav Dabas)
on this i.e on 01.04.2019 Civil Judge01/Central,
Tis Hazari Courts/Delhi
Counter Claim No.593450/2016 M/s V2 Retail Limited vs M/s Rachna Overseas Pvt Ltd Page 19 of 19