Delhi District Court
Cure Surgicals vs Darshika Orthocare on 15 March, 2022
CS SCJ 83387/16
CURE SURGICALS VS DARSHIKA ORTHOCARE
IN THE COURT OF MS. NEHA SHARMA, CIVIL JUDGE 01,
SAKET COURTS, SOUTH DELHI
CIVIL SUIT NO : 83387/16
CNR NO. :DLST030004222015
Date of Institution: 25.03.2015.
Date of Judgment: 15.03.2022
CURE SURGICALS
At: S12, First Floor,
Green Park Extension
Opposite Uphar Cinema
New Delhi110016
Through Partner:
Snt. Ambica Malhotra ..................Plaintiff
Versus
M/s DARSHIKA ORTHOCARE
At: 37/54 Capital Tower
Mesten Road, Kanour208001
Through it's Prop:
Shri Aditya Dwivedi
Also At:
1) M/s Darshika Orthocare
A465, Avas Vikas Hanspuram
Page no. 1 of 15
(Neha Sharma)
CJ01/(South) Saket Court/New Delhi
CS SCJ 83387/16
CURE SURGICALS VS DARSHIKA ORTHOCARE
Naubasta, Kanpur
2) M/s Darshika Orthocare
279/55, B1, Pandariba
Charbag, Lucknow. ...........Defendant
SUIT FOR RECOVERY OF RS. 93,540/ ALONG WITH
PENDENTELITE AND FUTURE INTEREST
1.Vide this judgment I shall decide the suit of the plaintiff, which was filed for recovery of Rs. 93,540/along with pendentelite and future interest.
PLAINT:
2. Succinctly, the case of the plaintiff is that plaintiff is a partnership firm consisting of two partners Sh. Kapil Malhotra and Smt. Ambika Malhotra who has filed the present suit in her capacity as partner of the plaintiff firm duly registered vide partnership deed dated 01.04.2014. Plaintiff is one of the premium health care organizations offering quality approved medical products and solutions who is eminent supplier importer, exporter, trader and distributor of health care products, medical products and surgical instruments while defendant is the sole proprietorship firm providing medical technology and services all across India. Thus, both parties are carrying on similar businesses ie. providing medical/ surgical products and services. Both parties entered into a distribution agreement dated 01.01.2014 for working together and strengthen their sales in Lucknow and Kanpur. Plaintiff granted dealership of only arthrex Page no. 2 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE products to the defendant with initial investment of Rs.8,00,000/d. As per the payment terms specified in the agreement, all invoices raised by the plaintiff were to be cleared by the defendant in advance without any delay. Pursuant to the agreement, defendant placed an order with the plaintiff and invoice bearing no. 711 dated 03.12.2014 for a sum of Rs. 93,540/ was raised by the plaintiff.
Products were delivered at the Kanpur address of the defendant which is evident from delivery challan dated 02.12.2014 bearing no. 5857 which was duly received by the defendant however, defendant failed to clear the invoice till date. On 15.12.2014, the distribution agreement was terminated by the plaintiff with immediate effect. A reminder letter dated 13.01.2015 was sent to the defendant to clear the amount within 7 days. Thereafter, a legal notice dated 21.02.2015 was sent to the defendant however, defendant neither replied nor paid the outstanding amount. Hence, the present suit claiming relief in paragraph no.1 has been filed by the plaintiff. WRITTEN STATEMENT
3. On the contrary, it is the case of the defendant is that defendant is a sole proprietor ship firm which has been illegally stated to be M/s Darshika Orthocare Pvt. Ltd. The amount of Rs. 93,540/ claimed by the plaintiff in the present suit has already been paid in advance to the plaintiff on 07.11.2014 as an amount of Rs.1,00,000/ which is in excess of the claimed amount was transferred to the plaintiff. It is admitted that the delivery of challan no. 5857 dated 02.12.2019 was received by the defendant. Hence, it is prayed that the present suit is liable to be dismissed.
Page no. 3 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE REPLICATION
4. In the replication filed by the plaintiff, the contents of the written statement have been denied and averments made in the plaint have been reiterated.
ISSUES
5. Vide order dated 02.08.2018, following issues were framed by the Ld. Predecessor of this court:
Issue No.1 Whether the plaintiff is entitled to recover the amount of Rs. 93,540/ from the defendant as prayed? OPP Issue No. 2 Whether the plaintiff is entitled to interest @ 18% per annum thereupon as prayed in prayer clause (b) and (c)? OPP Issue No. 3 Relief.
PLAINTIFF EVIDENCE:
6. In order to establish its case, plaintiff examined himself as PW1. PW1 tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:
(i) Partnership deed ie. Mark A (exhibited as Ex.PW1/1 in his affidavit);
(ii) Registration details of plaintiff company ie. Mark B (exhibited as Ex.PW1/2 in his affidavit);
(iii) Computer generated ledger statement maintained by plaintiff ie.Ex.PW1/6
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(iv) Email dated 15.12.2014 i.e. Ex.PW1/7
(v) Letter dated 13.01.2015 i.e Ex.PW1/8
(vi) Legal notice dated i.e Ex.PW1/9
(vii) Tracking report ie. Ex.PW1/10
(viii) Tracking report ie. Ex.PW1/11
(ix) Copy of return envelope ie. Mark C (exhibited as Ex.PW1/12 in his affidavit)
(x) Tracking report i.e Ex.PW1/13
7. PW1 was duly examined but not cross examined as defendant remained ex parte. Thereafter, vide a separate statement of the plaintiff, plaintiff's evidence stood closed on 12.12.2019. DEFENDANT'S EVIDENCE:
8. Despite various opportunities being granted, defendant failed to lead evidence.
FINAL ARGUMENTS
9. Final arguments were addressed by both the parties on 03.12.2021 and 13.12.2021. The preliminary objections raised by the defendant are that the present suit is not maintainable as the suit has been filed by the plaintiff through Ms. Ambika Malhotra in her capacity as the partner of the plaintiff firm. Plaintiff failed to inform the defendant about the conversion and as per the doctrine of privity of contract under the Indian Contracts Act, 1872, no right can be enforced by a person who is not a party to the contract. Reliance has been placed on M.C. Chacko vs The State Bank of Travancore, Page no. 5 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE Trivandrum (AIR 1970 SC 504). It is also stated that the present suit should have been filed in the name of Ms. Ambika Malhotra and not in the name of the firm. Reliance has been placed on P.C. Advertising vs The Municipal Corporation of Delhi 73 (1998) DLT 259, Miraj Marketing Corporation vs Vishaka Engineering and Ors. 115 (2004) DLT 471, Svapn Constructions vs IDPL Employees Cooperative Group Housing Society Ltd. and Ors. 127 (2006) DLT 80.
10. Further, it is stated that as per section 62 of the Indian Contract Act, 1872 there should have been novation of contract between the parties however, due to nondisclosure of change in constitution to the defendant, the present suit is not maintainable and is liable to be dismissed. Reliance has been placed on Meenakshi Achi and Ors. vs P.S.M Subramanian Chettiar and Ors. AIR 1957 Mad 8 and Citi Bank N.A. and Ors. vs. Standard Chartered Bank and Ors. AIR 2003 SC 4630. Moreover, it is stated that this court does not have territorial jurisdiction to try the present suit as no cause of action has arisen in the jurisdiction of this court. Besides, the defendant had already made an advance payment of Rs. 1,00,000/ to the plaintiff on 07.11.2014 hence, the present suit is liable to be dismissed.
11. Ld. Counsels presented their arguments in accordance with the pleadings. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of both the parties. My issueswise Page no. 6 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE findings are as under:
ISSUE NO.1 WHETHER THE PLAINTIFF IS ENTITLED TO RECOVER THE AMOUNT OF RS. 93,540/ FROM THE DEFENDANT AS PRAYED? OPP
12. The preliminary objections raised by the defendant are that the present suit is not maintainable as the suit has been filed by the plaintiff through Ms. Ambika Malhotra in her capacity as the partner of the plaintiff firm. It is submitted that the agreement dated 01.01.2014 was entered into by the defendant and Ms. Ambika Malhotra in her capacity as the sole proprietor of the plaintiff however, plaintiff converted the proprietorship firm to partner ship firm and got the partnership deed registered on 20.08.2014. Plaintiff failed to inform the defendant about the conversion and as per the doctrine of privity of contract under the Indian Contracts Act, 1872, no right can be enforced by a person who is not a party to the contract. Reliance has been placed on M.C. Chacko vs The State Bank of Travancore, Trivandrum (AIR 1970 SC 504).
13. In my considered opinion, the argument of Ld. Counsel for defen dant is devoid of any merit as the word, 'firm' or the 'firm name' in section 4 of the Indian Partnership Act is merely a compendious description of all the partners collectively. Where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not Page no. 7 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE authorised the suit. Reliance for the same can be placed on the judgment of Hon'ble Supreme Court in Purushottam Umedbhai & Co vs M/S. Manilal and Sons 1961 SCR (1) 982. Plaintiff firm even after registration did not form an identity different from its partners. It is still a compendious description of all the partners collectively. Admittedly, Ms. Ambika Malhotra through whom the present suit has been filed is one of the partners of the plaintiff firm. Thus, judgment is M.C. Chacko (supra) is not applicable to the facts of the present suit as in the present suit plaintiff firm has sued through one of its partners and plaintiff firm which is only a compendious description of its partners is not a stranger to agreement dated 01.01.2014.
14. Further it is stated that the present suit should have been filed in the name of Ms. Ambika Malhotra and not in the name of the firm. Reliance has been placed on P.C. Advertising vs The Municipal Corporation of Delhi 73 (1998) DLT 259, Miraj Marketing Corporation vs Vishaka Engineering and Ors. 115 (2004) DLT 471, Svapn Constructions vs IDPL Employees Cooperative Group Housing Society Ltd. and Ors. 127 (2006) DLT 80.
15. It is an admitted fact that plaintiff firm is a registered firm vide registration deed dated 20.08.2014 which is on record. Order 30, Rule 1(1) provides that any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action. The judgments in P.C. Advertising (supra), Miraj Marketing Page no. 8 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE Cooperation (supra) and Svapn Constructions (supra) wherein it was held that suit filed in the name of sole proprietorship firm which is not a legal entity is not maintainable is not applicable to the facts of the present suit as it is not the case of the defendant that plaintiff firm is a sole proprietorship firm which does not have any legal identity of its own. Hence, in my opinion, present suit filed in the name of the firm through Ms. Ambika Malhotra is maintainable.
16. Further, it is stated that as per section 62 of the Indian Contract Act, 1872 there should have been novation of contract between the parties however, due to nondisclosure of change in constitution to the defendant, the present suit is not maintainable and is liable to be dismissed. Reliance has been placed on Meenakshi Achi and Ors. vs. P.S.M Subramanian Chettiar and Ors. AIR 1957 Mad 8 and Citi Bank N.A. and Ors. vs. Standard Chartered Bank and Ors. AIR 2003 SC 4630. The argument is again devoid of any substance as the present suit has been filed by the registered partnership firm through one of its partners. Sh. Kapil Malhotra is still a partner in the firm, however, as the firm was registered, the firm chose to file the present suit through Ms. Ambika Malhotra. However, Sh. Kapil Malhotra deposed as PW
1. There should be no novation of contract between the parties as Sh. Kapil Malhotra and Ms. Ambika Malhotra are still the partners in the plaintiff firm. Registration of a firm does not alter the fact that a partnership firm does not have a separate legal identity. Thus, for reasons mentioned above, the preliminary objections are dismissed.
17. Besides, objection has been taken by the defendant to the territorial Page no. 9 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE jurisdiction of this court to try the present suit as it is stated that cause of action did not arise within the jurisdiction of this court. The Distribution Agreement dated 01.01.2014 executed between the parties has been admitted by the defendant. As per clause 12 of the agreement itself, it was agreed between the parties that all goods were to be supplied from Delhi itself. Thus, part of cause of action arose within the jurisdiction of this court. Agreement dated 01.01.2014 contains an exclusive jurisdiction clause "subject to jurisdiction of Delhi" by way of which both parties have agreed to subject all their disputes to the jurisdiction of this court. This is a case where different courts had concurrent jurisdiction and, in such a case, it was open to the parties to make a choice restricting the Court in which the suit under or upon the contract could be instituted. In other words, both the Courts in Kanpur and Delhi having territorial jurisdiction, the parties by their agreement waived their right, to institute any action, as aforesaid except at Delhi. Hence, in my opinion, this court has jurisdiction to try the present suit.
18. Now coming to the merits, the onus to prove issue no.1 lies on the plaintiff. In order to prove his case, plaintiff has examined PW1. Plaintiff has placed reliance on the ledger statement maintained by the plaintiff, email dated 15.12.2014, letter dated 13.01.2015, legal notice dated 21.02.2016 along with tracking report and certificate under section 65B Indian Evidence Act, 1872.
19. Defendant has admitted Distribution Agreement dated 01.01.2014 with the plaintiff, invoice bearing no. 711 dated 03.12.2014 for an amount of Page no. 10 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE Rs. 93,540/ and delivery challan bearing no. 588 dated 02.12.2014. Further, it is stated that alleged amount due to the plaintiff is false as defendant had paid an advance payment of Rs. 1,00,000/ to the plaintiff.
20. It is settled that 'he who asserts, must prove'. In this respect, the Hon'ble High Court of Delhi has held in the case of Jagdish Prasad v. Shashi Jain CM(M)26/2014, CM Nos. 54041/2014 & 2019/2014.
"The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue".
21. PW1 deposed on 12.12.2019 that defendant failed to make the payment of Rs. 93,540/ to the plaintiff. Despite opportunity being granted, defendant failed to cross examine PW1 as it remained exparte. Consequently, Page no. 11 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE the onus shifted to defendant to defendant to prove that payment has been made to the plaintiff. In order to prove its case, defendant has placed reliance on ledger statement from 01.04.2014 to 31.03.2015 however, in absence of a certificate under section 65B Indian Evidence Act, 1872, the ledger statement cannot be read in evidence.
22. Another important aspect which needs to be appreciated at this stage is that a letter dated 13.01.2015 and legal notice dated 21.02.2015 i.e. Ex. PW1/8 and Ex. PW1/9 were also sent by the plaintiff to the defendant demanding the outstanding amount. Defendant has disputed the receipt of legal notice dated 21.02.2015. However, the said legal notice was addressed to defendant's address as mentioned in the affidavit annexed with the written statement. The Hon'ble Apex Court in the case of K. Bhaskaran vs Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 observed as under:
"The principle incorporated in Section 27 of the General Clauses Act could profitably be imported in a case where the sender had dispatched the notice by post with the direct address written on it. Then it can be deemed to have been served on the addressee, unless he proves that it was not really served and he was not responsible for such nonservice."
23. Thus, on the basis of the above law as well as on Ex. PW 1/10 to Ex. PW 1/13, the factum of delivery of the said notice and legal notice duly stands established but the fact that no reply pertaining to the same is placed on Page no. 12 of 15 (Neha Sharma) CJ01/(South) Saket Court/New Delhi CS SCJ 83387/16 CURE SURGICALS VS DARSHIKA ORTHOCARE record by the defendant, raises a presumption against the defendant under Section 114 of the Indian Evidence Act, 1872 as it is a settled proposition of law that non denial or evasive denial amounts to an admission. Thus, adverse inference can be drawn against the defendant under section 114 of the Indian Evidence Act which states that, "the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and/a private business, in their relation to the facts of the particular case." The Clause
(f) appended to the section clearly states that, "common course of business has been followed in a particular case, implying that where a letter or legal notice as in the present case is sent to the defendant, it would have ordinarily been delivered in the common course of business to the party to whom it was addressed."
24. Again, no cross examination of PW1 was done on behalf of defendant to challenge the case of the plaintiff that a legal notice was served upon him. It is pertinent to mention that the plaintiff by placing on record invoice dated 03.12.2014 of Rs. 93,540/ duly corroborated by delivery challan and statement of account i.e. Ex. PW 1/6 has duly established that the goods were supplied to the defendant and the bill was duly raised by the plaintiff against the defendant. Defendant has also admitted the invoice dated 03.12.2014 and delivery challan. Further, defendant failed to cross examine PW1 despite opportunity being granted. In such circumstances, the court presumes that the testimony of PW1 has been accepted.
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25. On the basis of the documents placed on record, plaintiff has discharged its burden on the parameters of preponderance of probabilities that an amount of Rs. 93,540/ is due by the defendant to the plaintiff.
Thus, issue no. 1 is accordingly decided in favour of the plaintiff and against the defendant.
Issue no. 2 WHETHER PLAINTIFF IS ENTITLED TO ANY PENDENTE LITE AND FUTURE INTEREST, IF SO, FOR WHAT PERIOD AND FOR WHAT RATE? OPP
26. Onus to prove this issue is on the plaintiff. In light of the issue No. 1 being decided in favour of the plaintiff and against the defendant, the present issue also stands decided in favour of the plaintiff, but plaintiff has prayed for an interest of 18% per annum from the date of filing of the suit till its realization, which in the considered opinion of this court is on the higher side and no document has been placed on record to show that it was the agreed rate of interest between the parties. Hence, as the present suit pertains to a commercial transaction, interest at the rate of 9% per annum would be reasonable and in the interest of justice under section 34 CPC. Thus, defendant is liable to pay an interest at the rate of 9% per annum from the date of filing of the suit till its realization to the plaintiff.
Thus issue no. 2 is, accordingly, decided in favour of the plaintiff and against the defendant.
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27. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led, the plaintiff has proved his case on the scale of preponderance of probabilities. Accordingly, suit of the plaintiff is decreed for an amount of Rs. 93,540/ (Rupees NinetyThree Thousand Five Hundred and Forty) along with interest at the rate of 9% per annum from the date of institution till its realization.
28. Cost of the suit is also awarded in favour of the plaintiff.
29. Decreesheet be drawn accordingly.
30. File be consigned to record room after due indexing and completion.
Pronounced in open court:
Dated: 15.03.2022 (Neha Sharma) CJ01(South)Saket/New Delhi Note :This Judgment contains fifteen pages and all the pages have been checked and signed by me.
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