Delhi District Court
Indospirit Marketing Pvt. Ltd vs Mr. Ravinder Kumar on 21 January, 2023
IN THE COURT OF Ms. VINEETA GOYAL:
DISTRICT JUDGE (COMMERCIAL COURT)-02
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (Comm.) 781/2022
INDOSPIRIT MARKETING PVT. LTD.
Having its registered office at
B230, Okhla PhaseI
New Delhi 110020
Through its Authorized Representative
Ms. Abhishek Butoliya
[email protected] ....Plaintiff
VERSUS
MR. RAVINDER KUMAR
Proprietor, M/s Ravinder Kumar
Shop no. 7 & 8, T.D.I Mall, District
Centre, Jasola
New Delhi 110025
....Defendant
Date of Institution : 05.08.2022
Date of final argument : 21.01.2023
Date of Judgment : 21.01.2023
Appearance : Sh. Anand Shankar Jha along with Sh. Abhilekh
Tiwari, Ld. Counsel for plaintiff.
Defendant ex-parte.
CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 1 of 7
JUDGMENT
1. The plaintiff has filed suit for recovery of Rs.8,28,389/- including interest @ 24% p.a. against the defendant.
2. Brief facts as epitomized are that the plaintiff is engaged in the business of marketing and sale of alcoholic beverages. Sh. Abhishek is authorized by board resolution dated 22.07.2021 to institute the present suit.
2.1. It is averred that defendant is engaged in the business of sale of alcoholic beverages from its licensed outlet bearing shop no. 7 & 8, TDI Mall, District Center, Jasola, New Delhi. It is stated that defendant had approached the plaintiff for supply of alcoholic beverages at his outlet. Pursuant thereto, it was agreed between the parties that the supply of goods would be effected to the defendant as per the purchase orders placed by the defendant.
2.2. It is further averred that on the basis of mutual understanding, the defendant had placed orders of alcoholic beverages from time to time via purchase orders raised through Excise Supply Chain Information Management System (ESCIMS) portal of Delhi Excise Department. Consequently, the plaintiff supplied the goods on credit basis with the maximum credit period of 30 days and raised invoices upon the defendant. It is stated that defendant used to make payment through NEFT/IMPS/Cheque. The plaintiff is also maintaining a regular ledger account in the name of the defendant. It is further averred that as per books CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 2 of 7 of account maintained by the plaintiff an amount of Rs. 5,84,930/- (Rs. Five Lacs Eighty Four Thousand Nine Hundred and Thirty only) is due and payable against the unpaid invoices which the defendant has failed to pay till date. A legal notice dated 24.06.2021 was issued to the defendant through courier calling upon the defendant to clear above amount being the outstanding dues of the plaintiff along with interest within 10 days of receipt of the legal notice. However, defendant failed to clear the dues of the plaintiff. The plaintiff entitled for recovery of above-mentioned amount along with interest of Rs.2,43,459/- calculated @ 24% p.a. from the date of default being 30.09.2020 i.e. after expiry of 30 days credit period from the last unpaid invoice dated 20.07.2020 till 15.06.2022. The plaintiff is also entitled for pendente lite and future interest @ 18% p.a. till the date of actual payment. The suit is within the period of limitation. This court has territorial jurisdiction to entertain the present suit as the defendant outlet where goods were supplied was within the jurisdiction of this court. Further, the plaintiff received the orders and payments from the defendant at plaintiff's office at Okhla, New Delhi. The supplies were also made to the defendant from the office of plaintiff. The business communication took place from plaintiff's office. The cause of action arose within the jurisdiction of this case. Hence, this suit for recovery.
3. Pursuant to process issued by speed post at the address mentioned in the memo of parties, received back with the report of refusal and the same deem to have been served. It is well settled principle that if somebody avoids to accept the notice or refuses to accepts the same, then he would be deemed to be served once it is shown that a notice was sent on the correct address. The defendant neither appeared nor filed written statement and CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 3 of 7 accordingly proceeded ex-parte vide order dated 19.12.2022.
4. In support of the case of the plaintiff, the plaintiff has examined Sh. Jitender Kumar, Authorized Representative as PW1 and thereafter closed its evidence.
5. I have heard arguments advanced by the Learned Counsel for the plaintiff and carefully gone through the record.
6. In order to establish its case, PW1 Sh. Jitender Kumar, tendered his evidence by way of affidavit Ex PW1/A in which he reiterated the contents of the plaint and same is not repeated herein for the sake of brevity. PW1 relied upon following documents:
• Board Resolution dated 16.01.2023 Ex PW1/1 (OSR); • Copy of Ledger Account of Ravinder Kumar Ex PW1/2; • Invoices reflecting sales and delivery of goods Ex PW1/3 (Colly); • Copy of Legal Notice dated 24.06.2021 Ex PW1/4; • Courier receipt of dispatching legal notice Ex PW1/5. • Non-starter report of Pre-Mediation Ex.PW1/6. • Certificate U/s 65B of Indian Evidence Act Ex PW1/7. • Board Resolution dated 22.07.2021 Ex.PW1/8.
7. It is the case of the plaintiff that defendant during the course of business activity had placed orders of alcoholic beverages time to time via purchase orders raised through ESCIMS Portal of Delhi Excise Department which is an exclusive portal through which all order of alcoholic beverages CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 4 of 7 are placed and the entire supply chain is tracked including the delivery and the sale of products to the end consumer. The plaintiff supplied goods on credit basis to the defendant and as per books of accounts Ex.PW1/2 there is an outstanding balance of Rs. 5,54,930/- against the defendants. He relied upon two invoices Ex.PW1/3 (colly) as follows:
Invoice no. Particulars Date Amount IMPL-200820-847 Sale 20.08.2020 Rs.3,59,068.59/- IMPL-200820-848 Sale 20.08.2020 Rs.4,25,882.96/-
8. Upon careful consideration of the facts, it transpires that the above mentioned invoices clearly mentions about buyers details, buyers order number, description of goods, quantity, rate per bottles, amount, company VAT TIN, buyer's VAT TIN etc. and there are corresponding entries in the ledger account for the period 01.04.2015 to 15.06.2022. There is no rebuttal from the side of the defendant to the above mentioned documents. It is pertinent to mention here that the trade of alcoholic products is governed by Excise Policy of States and thus, seller and buyer of bulk items are required to obtain necessary license which are shared amongst the transacting parties. It is not opened in this trade that manufacturer is at liberty to make sale to any person on demand any bulk quantity unless the buyer possesses the proper licence and has authority to make bulk purchases. Thus, the seller and buyer are fully identified in the transaction.
9. In the present case, upon perusal of invoices Ex PW1/3 (Colly) placed on record shows that the goods (alcoholic beverages) have been sold CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 5 of 7 by the plaintiff to one Ravinder Kumar. Even statement of account Ex PW1/2 from the books of account of plaintiff placed on record showing the outstanding balance shows the name of buyer Ravinder Kumar. It is no more res integra that these invoices are akin to contracts between the parties making parties liable to each other. Therefore, in view of discussion above, the plaintiff is entitled to recover unpaid amount from defendant.
10. As discussed, there is no challenge to the documents of plaintiff as the defendant chose not appear before this Court for the reason best known to him. The evidence of the plaintiff remained unchallenged and there is no reason to disbelieve the same. Considering the unchallenged testimony of PW1 coupled with documentary evidence, the plaintiff has been successful in discharging its burden and the plaintiff is entitled for recovery of Rs. 5,84,930/- as per invoices Ex. PW1/3 (colly.) and ledger account Ex. PW1/2 from the defendant.
11. Plaintiff has claimed interest of Rs.2,43,459/- calculated @ 24% per annum at the aforesaid amount from 20.08.2020 till 15.06.2022 and further claimed pendente lite and future interest @ 18% per annum till the date of actual payment. Considering the nature of dispute between the parties being commercial, this Court is of the view that interest @ 9% per annum is reasonable and would meet the ends of justice. Under these circumstances, the plaintiff is entitled to interest @ 9% per annum from 20.08.2020 till the realization of entire amount by the plaintiff.
12. In view of above discussion, suit for recovery is decreed in favour of the plaintiff and against the defendant for an amount of Rs.
CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 6 of 7 5,84,930/- (Rs. Five Lacs Eighty Four Thousand Nine Hundred and Thirty only) along-with interest @ 9% per annum with effect from 20.02.2020 till its realization alongwith cost.
13. Further, keeping in view Section 35A of CPC and more particularly, when the defendant has not contested the claim of the plaintiff and is responsible for litigation, defendant is also liable to bear the costs, accordingly, the plaintiff is entitled for litigation expenses. Total number of 5 hearings have taken place in this case. The Advocate's fee is assessed to be Rs. 15,000/- only and same is hereby awarded in favour of the plaintiff. Costs of suit i.e. court fee etc., are also awarded in favour of the plaintiff and against the defendant.
14. Decree sheet be prepared accordingly.
15. File be consigned to record room.
Pronounced in the open Court (Vineeta Goyal) on this 21st January, 2023. District Judge (Commercial)-02, South-East, Saket Court, New Delhi /21.01.2023 CS (Comm) 781/22 Indospirit Marketing Pvt. Vs. Ravinder Kumar page 7 of 7