Delhi District Court
Sun Polybag Pvt Ltd vs Polylon Fabrics Pvt Ltd on 28 February, 2024
IN THE COURT OF MS. RAVINDER BEDI
DISTRICT JUDGE (COMMERCIAL COURT)-12
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
In the matter of:-
CS (COMM) No. 1459/19
M/s Sun Polybag Pvt. Ltd.
Having its Registered Office at
2578, Gali Peepal Wali, Dharam Pura,
Chandni Chowk, Delhi.
Through its Director: Anuj Jain
... PLAINTIFF
Vs.
M/s. Polylon Fabrics Pvt. Ltd.
Through its Directors
Near Police Line, G.T. Road,
Panipat-132103, Haryana
... DEFENDANT
Date of institution of suit : 06.08.2019
Date of final arguments : 23.02.2024
Date of Judgment : 28.02.2024
Appearance:-
Mr. Kapil Jain, Ld. Counsel for Plaintiff.
Mr. Rajiv Gupta, Ld. Counsel for Defendant.
CS (COMM) No. 1459/19
M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 1/ 13
JUDGMENT
1. Present is a suit instituted by plaintiff seeking recovery of Rs.6,14,054/- (Rupees Six Lakhs Fourteen Thousand and Fifty Four Only) alongwith interest @ 18% p.a. pendente-lite and future against the defendant.
2. (a) To put succinctly, Plaintiff company is engaged in the business of supply of plastic bags and other items. The suit is filed through Mr. Anuj Jain, who is duly authorized to sign, file and verify the present suit by virtue of Board Resolution dated 06.05.2019 in his favor. The defendant is one of the customers of plaintiff and has been purchasing goods i.e. plastic bags on credit basis from Plaintiff. The goods were supplied by plaintiff to the defendant as per orders placed with plaintiff. Plaintiff would supply material to defendant against invoices/bills raised against such supplies. Part payments were received by the plaintiff towards such material from Defendant.
(b) Plaint avers that the transactions were carried out between parties at registered office of plaintiff at Delhi and orders for supply of material were also made at said registered office. The goods were dispatched from the offices of plaintiff situated at the different locations. For the goods received by defendant, there was no complaint of any nature in respect of such supplies. The plaint avers that plaintiff demanded its outstanding dues from defendant, however, defendant started delaying the same on one pretext or the other. The plaintiff contacted the defendant telephonically and personally asking them for payment of outstanding dues but after sometime, defendant refused to pay the said amount.
CS (COMM) No. 1459/19M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 2/ 13
(c) Plaint avers that as per the customer ledger account kept in the course of business by plaintiff, a sum of Rs.6,14,054/- is outstanding and due against the defendant. Plaint avers that plaintiff is also entitled to recover the interest alongwith principal amount. Plaintiff served a legal notice dated 20.12.2018 upon defendant by registered post asking them for payment of dues alongwith interest but to no avail.
(d) Plaint avers that the subject matter of the suit is a "Commercial Dispute", as provided under Section 2(1) (c) (i) of Commercial Courts Act, 2015. The Directors of the defendant are jointly and severally liable for payment of the outstanding amount. Plaint avers that entire dealings took place between parties at the said registered office. Besides, the orders for supply of goods were placed by the defendant at the said office at Gali Peepal Wali, Dharampura, and thus this Court has territorial jurisdiction to entertain and decide the suit.
3. Summons of the suit were served upon the defendant. Defendant company filed its written statement through its Director Sh.Vivek Chopra wherein certain preliminary objections were taken to the maintainability of the suit, inter-alia the suit (written everywhere as petition) was filed with a view to extract huge amount of money from defendant; that the plaintiff did not debit the amount of one invoice of Rs.1,73,332/- dated 18.10.2016 in his account ledger. At the same time, on 30.06.2017, self took the fabric amount of Rs.4,40,755/- vide Invoice no.882. Plaintiff did not enter both these invoices in ledger just to create pressure to get zipper / material at lesser price ; that no cause of action had ever accrued in favor of plaintiff to file the suit. It was contended that this CS (COMM) No. 1459/19 M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 3/ 13 court had no territorial jurisdiction as no transaction ever took place in Delhi. The suit was not maintainable as no pre-institution Mediation took place which was a mandatory condition to file the commercial suit.
4. On merits, defendant denied the averments of the plaint and contended that the plaintiff had manipulated his ledger accounts. It is contended that on 16.03.2018, plaintiff had settled the accounts in respect of material of Rs.1,96,019/- and thereafter no outstanding dues were pending towards plaintiff. It was contended that the entire ledger amount was settled. However, plaintiff cunningly erased from his ledger of an amount of Rs.6,14,077/- and made out a false case against defendant, though there was no balance amount payable.
5. Defendant contended that no legal Notice was received and alleged legal notice was also manipulated by plaintiff (written wrongly as Defendant).
6. Plaintiff filed its Replication on 30.01.2020 wherein it has reiterated the averments made in the plaint and controverted to those in the written statement. By Order dated 22.02.2020, Ld. Predecessor settled the following issues for adjudication :-
1) Whether this Court has no territorial jurisdiction to entertain the plaintiff suit in view of preliminary objection no. 4 of the Written Statement? OPD
2) Whether the defendant is entitled to an adjustment of two invoices no. Ex-17532 dated 08.10.2016 in the sum of Rs.1,73,332/- (Rs. One Lakh Seventy Three Thousand Three Hundred Thirty Two only) and invoice CS (COMM) No. 1459/19 M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 4/ 13 no. Ex-882 dated 30.06.2017 in the sum of Rs.4,40,755/- (Four Lakh Forty Thousand Seven Hundred Fifty Five only) totaling 6,14,087/- (Rs. Six Lakh Fourteen Thousand Eighty Seven only)? OPD
3) If the finding on issue no. 2 is in affirmative, whether the plaintiff is entitled to recovery any amount or interest from the defendant? OPP
4) Who is entitled to relief and in what terms?
5) Who is entitled to the cost of the suit and on what
terms and in what quantum?
7. It is pertinent to state that the defendant was directed to open his evidence first by bringing witnesses. However, despite opportunities availed in this regard, neither any witness is produced nor any affidavit has been filed by defendant in support of his contentions in written statement.
The evidence of defendant was closed by order.
Plaintiff company has examined its Director Sh. Anuj Jain as PW-1 and proved on record the documents i.e. Board Resolution as Ex.PW1/1; bill dated 09.06.2016 as Ex.PW1/2; weight slip of entry as Ex.PW1/3; bills dated 14.07.2016 , 28.06.2016 and 25.06.2016 as Ex. PW1/4 to Ex. PW1/6; Ledger account of Defendant maintained by plaintiff for the period 09.06.2016 uptil 16.03.2018 as Ex.PW1/7 ( at page no. 14 of paper book) ; Legal Notice issued to defendant as Ex.PW1/8 and postal receipts as Ex.PW1/9.
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8. After conclusion of evidence, the matter was posted for final arguments.
9. I have heard Ld. Counsel for parties and perused the entire material on record in the light of relevant statutory provisions of law. I have also looked into the case-laws/authorities relied upon by parties and my issue wise findings are as under :-
Issue No. 1. Whether this Court has no territorial jurisdiction to entertain the plaintiff suit in view of preliminary objection no. 4 of the Written Statement? OPD
10. The onus to prove this issue was upon the defendant. Ld. Counsel for defendant submits that neither the defendant is the resident within Court's jurisdiction nor any cause of action has arisen in respect of the transactions in question. Ld. Counsel submits that the goods were not supplied from Gali Peepalwali, Chandni Chowk nor received by defendant at Delhi. These were received at Panipat i.e. place of defendant. The defendant never came to Delhi and thus, Delhi Courts did not have jurisdiction to try the present suit. Ld. Counsel submits that the place where goods were delivered would be the place where transaction is performed and the cause of action, if so, arose at Panipat, Haryana. Referring to Section-20 CPC and illustrations in support of submissions, ld. Counsel argued that there is no evidence of orders placed by defendant telephonically with plaintiff and in the absence of anything to show in this regard, the same dis-entitles the Plaintiff for its claims.
CS (COMM) No. 1459/19M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 6/ 13
11. Refuting the submissions of ld. Counsel for defendant, ld. Counsel for plaintiff submits that the transactions between parties are undisputed. Referring to para 14 of the plaint, ld. Counsel submits that the plaintiff has its only registered office at Gali Peepal Wali, Chandni Chowk and entire dealings took place between parties at the said office. Ld. Counsel submits that the orders for supply of goods were placed by defendant at the said office, where part payments were also received, thus, this Court had territorial jurisdiction to entertain and try the suit. Ld. Counsel places reliance on Judgments of Hon'ble Delhi High Court in"J.J. Trade Links Pvt. Ltd. Vs. Linkmark International (HK) Ltd. and Ors. (DOD as 26.11.2010) & Mrs. Shradha Wassan and Ors. Vs. Mr. Anil Goel and Anr. (DOD as 05.05.2009)" to submit that the negotiations and discussions took place and orders for supply of goods were placed by defendant with plaintiff company at Chandni Chowk office and therefore, part cause of action arose within territorial jurisdiction of this Court.
12. I have considered the submissions and perused the pleadings. In his written statement, Defendant has merely stated that "this Court has no territorial jurisdiction as no transaction ever took place at any point of time in the state of NCT of Delhi". During oral submissions, Counsel for defendant has brought up the point that defendant never visited the office of plaintiff and that all transactions and dealing between parties took place at the manufacturing facility of defendant at G.T. Road, Police Lines, Panipat, Haryana. However, there is nothing to substantiate contentions taken by defendant except only bald and oral submissions.
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13. As per Section-20 of the Code of Civil Procedure, where Defendant neither reside nor carry on business nor any part of the cause of action arises within the limits of the jurisdiction of the court, such court has no territorial jurisdiction to try the suit. (Bahrain Petroleum Co. Ltd. Vs. P.K Pappu & Anr., AIR 1966 SC 634). Where clauses (a) and (b) of Section 20 are not applicable, only that court will be competent, where cause of action wholly or in part arises. (ONGC Vs. Utpal Kumar Basu & Ors. (1994) 4 SCC 711; M/s Bhaktawar Singh Bal Kishan Vs. Union of India and others (1988) 2 SCC 293 and Board of Trustees for the Port of Calcutta and Anr. Vs.Bombay Flour Mills P. Ltd. & Anr. (1995) 2 SCC 559).
14. Given the legal position as above, I find that part cause of action has arisen in favour of Plaintiff within the jurisdiction of this Court. The contents of written statement would demonstrate that the transactions between parties being admitted, the objection of defendant is sans any ground. The orders were placed by Defendant upon plaintiff at Plaintiff's office at Chandni Chowk. The payments were received and transactions and negotiations for supplies took place at this office and thus, this Court has territorial jurisdiction to entertain and decide the suit. Furthermore, in the instant case, the legal notice demanding the payment preceding the suit was sent from plaintiff's registered office at Chandni Chowk, demanding the payment at Delhi and thus, principle of debtor must seeking the creditor is held to be applicable.
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15. It is general established rule that in case of goods sold and delivered, the suit will lie for its price, where the same is to be paid. In the judgment of Satyapal Vs. Slick Auto Accessories Pvt. Ltd. (2014) SCC Online Del 998, it is held that where the place of payment is not fixed in the contract/ bill / Invoices, the parties have to follow the general rule that the payment has to be made at the place of the creditor. Where there is nothing to show as to the place of payment, even without following of principle that 'debtor must seek out the creditor', the Court has the jurisdiction to try the suit, where payment is made.
16. The issue of jurisdiction was also discussed in the decision of Delhi High Court in M/s. Auto Movers vs. Luminous Power Technologies Pvt. Ltd. (DOD as 16.09.2021). Further, in the judgment of Shraddha Wason (Supra) relied by plaintiff, Hon'ble High Court of Delhi held that in the absence of defendant controverting or dealing with the categorical averments in plaint, the same are to be deemed to be admitted by defendant. Strength can also be drawn from the decision of Milk Food Ltd. vs. Union Bank of India (Manu/DE/8271/2007), in which it was held that even if it is assumed that Delhi was not expressly contracted place of payment, Delhi would still be a presumed place of payment because of the general rule that in the absence of a contract to the contrary, a debtor is bound to find the creditor to make payment - the place of payment is where the creditor resides.
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17. The plea of Defendant therefore, that the place of delivery of goods or the place of their receipt would deprive this Court's jurisdiction only deserves to be rejected. The issue no. 1 stands answered against the defendant and in favour of the plaintiff.
Issue No. 2. Whether the defendant is entitled to an adjustment of two invoices no. Ex-17532 dated 08.10.2016 in the sum of Rs.1,73,332/- (Rs. One Lakh Seventy Three Thousand Three Hundred Thirty Two only) and invoice no. Ex-882 dated 30.06.2017 in the sum of Rs.4,40,755/- (Four Lakh Forty Thousand Seven Hundred Fifty Five only) totaling 6,14,087/- (Rs. Six Lakh Fourteen Thousand Eighty Seven only)? OPD
18. The onus to prove this issue was on the defendant. T he objection of defendant primarily to the case of plaintiff was the falsity of claim on part of plaintiff by removing certain entries/invoices from ledger. It is worthwhile to observe that the defendant has not come up with any evidence or examined any witness in support of his defence that the two invoices were forged by the plaintiff or that these were not entered in ledger to make out a false case against defendant. The issue remained unproved and is therefore, decided against the defendant and in favour of the plaintiff.
Issue No. 3. If the finding on issue no. 2 is in affirmative, whether the plaintiff is entitled to recovery any amount or interest from the defendant? OPP Issue no. 4 Who is entitled to relief and in what terms?
Issue no. 5 Who is entitled to the cost of the suit and on what terms and in what quantum?
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19. As a corollary to my finding on issue no.2, since defendant has utterly failed to come up with any evidence in affirmative, plaintiff is entitled for the recovery of amount prayed. PW-1 Sh. Anuj Jain has duly supported the case and has deposed on the lines of averments of plaint. PW- 1 in his evidence stated that the entire transactions took place at registered office of Plaintiff company at Delhi and orders from Defendant for supply of goods were also received at the said office. PW-1 has proved the bills and the ledger account for the period from 09.06.2016 to 16.03.2018 and also the service of legal notice dated 20.12.2018 upon defendant through postal receipt PW-1/9. In cross-examination also, PW1 reiterated his version and denied the suggestions of ld. Counsel for defence in respect of jurisdiction and the ledger entries. PW-1's testimony is coherent and unshaken.
20. Ld. Col. for plaintiff argued that an adverse inference could be drawn against Defendant as the Defendant failed to file reply to the notice nor refuted the averments of demand of amount based on bills.
21. I find that Plaintiff has established the factum of service of Notice upon Defendant, as is discernible from Ex.PW1/8 and Ex.PW1/9 and there is a presumption of deemed service as per law. In Kalu Ram Vs. Sita Ram, 1980 RLR (Note) 44, it is held that where the plaintiff before filing a suit makes serious assertions in a notice to the defendant, the defendant must not remain silent by ignoring reply. If he does so, an adverse inference for the same may be drawn against him. Similar is the observation of Hon'ble Delhi High Court in Metropolis Travels & Resorts (I) Pvt. Ltd. Vs. Sumit Kalra & Anr. (DOD as 07.05.2002) and upon Dharampal Arora CS (COMM) No. 1459/19 M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 11/ 13 (Shri) Vs. M/s. Share Tips & Ors (DOD as 22.03.2010). Thus an adverse inference has to be drawn against Defendant that he had nothing to say in reply by refuting the contents of Notice.
22. Defendant has failed to come up with anything in rebuttal to prove the allegations of false/forged Invoices raised by Plaintiff in collusion with ex-employees of plaintiff or to prove having paid the entire amount prior to 08.12.2016. The oral submissions of Counsel for Defendant therefore are only noted to be rejected. In view of my findings as above, I hold that the Plaintiff company has been successful in establishing its claim for recovery against Defendant. The issues stand answered in favour of plaintiff.
On the aspect of interest on Principal amount, Ld. Counsel for plaintiff submits that the Invoices / bills are ' written contracts' as per settled law and therefore claim is made for an interest @ 18% p.a. on the amount as per bills for the pre-institution period alongwith interest pendent-lite and future.
23. The Invoices/bills contain a Clause for payment of interest at the rate mentioned therein and no protest whatsoever has been made with respect thereto. In the absence of any contra evidence, I am of the view that plaintiff is entitled for the contractual rate of interest for the reason of the transactions between parties being 'Commercial' ones, upto the date of filing of the suit. Plaintiff is thus entitled for an interest @ 18% p.a. upto the date of filing of suit alongwith interest pendent-lite and future.
future [KLG Systel Ltd Vs. Fujitsu ICIM Ltd. (DOD : 23.04.2001) and Beacon Electronics Vs. Sylvania and Laxman, 998 (3) Apex Decision Delhi 141 ; Liugong India Pvt CS (COMM) No. 1459/19 M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 12/ 13 Ltd Vs. Yograj Infrastructure Ltd & Ors (DOD : 08.02.2018) ; Corporation Bank Vs. M/s. Rama Industries & Ors (DOD : 12.05.1998) and Dharampal Arora (Shri) (Supra) ].
Relief
24. From the discussion as adumbrated herein-above, I hereby pass the following:
a) A decree for the sum of Rs.6,14,054/- (Rupees Six Lakhs Fourteen Thousand and Fifty Four Only) is passed in favour of Plaintiff and against Defendant alongwith interest @ 18 % p.a. from July 2016 upto the date of filing of suit and further interest @8% p.a. pendente-lite and future till its realization.
b) The costs of the suit alongwith pleader's fee is also awarded in favour of the plaintiff and against the defendant.
Decree-sheet be prepared and file be consigned to Record Room after due compliance.
Digitally signed by RAVINDER RAVINDER BEDI Announced in open BEDI Date: 2024.02.28 on 28.02.2024) 16:15:18 +0530 (Ravinder Bedi) District Judge (Commercial Court)-12 Central District, Tis Hazari Courts Delhi CS (COMM) No. 1459/19 M/s Sun Polybag Pvt. Ltd. vs. M/s. Polylon Fabrics Pvt. Ltd. Page no. 13/ 13