Delhi District Court
Vinod Kumar Khera vs Nsic Ltd. & Anr. on 27 September, 2014
Vinod Kumar Khera Vs NSIC Ltd. & Anr.
IN THE COURT OF SH. VISHAL PAHUJA: CJ02 (SOUTH):
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 23/2013
VINOD KUMAR KHERA,
S/o Sh. H. B. Khera,
E71, Aravalikunj Apartment,
Sector13, Rohini,
Delhi ... Plaintiff
Versus
1. NATIONAL SMALL INDUSTRIES CORPORATION LTD.,
NSIC Bhawan, Okhla Industrial Estate,
New Delhi - 110020
2. NATIONAL SMALL INDUSTRIES CORPORATION LTD.,
Default Management Recovery Branch,
B38D, Sector57
Noida201301, UP.
3. SUB DIVISIONAL MAGISTRATE,
Asst. Collector GradeI/II,
Deputy Commissoner (NorthWest),
Office Complex, Room No.5,
Kanjhawala, Delhi 110081 ... Defendants
Date of Institution : 27.01.2012
Date of Reserving Judgment : 27.09.2014
Date of Decision : 27.09.2014
J U D G M E N T
(on Suit for declaration and permanent injunction)
1. This is a suit for permanent injunction filed by plaintiff against the defendants.
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2. Briefly stated, case of the plaintiff is that plaintiff had been carrying the business of printing under the name and style of V. K. Printers, which was a partnership firm. That defendant no.1 and 2 is an certified company since its establishments in 1955 and has been working to fulfill its mission, aiding and fostering the growth of small scale industries in the country. That defendant no.1 and 2 provides plant, machinery and equipment on hire purchase basis. That plaintiff being a partner of the erstwhile firm i.e. M/s V. K. Printers sent an application to defendant no.1 and 2 for supply of an Automatic Stop Cylinders Latter Press Printing Machincomplete with standard accessories. That a hire purchase agreement was also duly executed by the plaintiff alongwith other partner. That the value of aforesaid printing machine was valued at Rs.1,15,000/ and the same was confirmed by defendant no.1 while sending an order form to the supplied. That defendant no.1 vide its letter dated 24.05.1984 duly informed and advised to remit the earnest money of Rs. 17,250/ to enable them to place the order with the aforesaid suppliers. That plaintiff duly sent a draft No.PTK170298 dated 16.07.1984 of RS.17,250/ in favour of defendant no.1 and 2 as earnest money/margin money. In pursuance of receipt of aforesaid margin money, defendant no.1 duly requested the aforesaid supplier to immediately send its performa invoices covering all the admissible charges. The supplier raised a performa invoice dated CS No. 23/13 Page 2 of 8 Vinod Kumar Khera Vs NSIC Ltd. & Anr.
03.08.1984, for an amount of Rs.1,27,765/ wherein it disclosed and assured one year guarantee against any manufacturing defect and assured for free of cost erection by its skilled technician. That machine was delivered on 01.10.1984. That machine was defective and a request was duly made to the supplier alongwith copy to defendant no.1 for rectification and replacement. A letter dated 20.12.1984 was further sent to defendant no.1 but to no avail. That a person namely Sh.Mahavir Pradsad visited the premises to remove the defects of the machine. However, he could not remove the fault of clutch but at that relevant time, Vbelt of motor was broken and accordingly request was made to the supplier for supply of the same vide letter dated 06.02.1985. That still machine had defects and it was not working properly. That defendant no.1 was requested vide letter dated 23.03.1985.That plaintiff received a dated 18.04.1985 from defendant no.1 revealing that plaintiff's partnership firm had duly received the machine and furnished a original delivery note No.166 dated 01.10.1984 alongwith inspection report on 27.10.1984 duly signed and certified about the receipt of the machine in good condition and satisfactory working of the machine. That plaintiff firm was constrained to issue a legal notice dated 12.08.1985. That plaintiff firm again request vide letter dated 01.07.1986 regarding removing of machine from the premises on 07.07.1986 failing which the same will be lying at defendant no.1 but all in vain. That on 18.02.1988, plaintiff returned the machine and got it received from the CS No. 23/13 Page 3 of 8 Vinod Kumar Khera Vs NSIC Ltd. & Anr.
godown keeper of defendant no.1. That plaintiff received a notice from defendant no.3 of an alleged recovery case no.SDM/SV/REV/2011/MISC/NSIC LTD. pursuant to the recovery certificate allegedly issued by defendant no. 1 and 2. Perusal of the notice revealed that alleged recovery proceedings for an amount of Rs.8,36,893/ has been initiated at the behest of defendant no.1 and 2 and said amount is recoverable from the plaintiff under Section 77 of Delhi Land Revenue Act, 1954 as arrears of land revenue. Hence, the present suit is filed by the plaintiff.
3. Upon service of summons of the present suit, defendants no.1 and 2 appeared and filed their written statement (WS) denying the allegations as contained in the plaint. Defendant no.3 was proceed exparte vide order dated 01.04.2014. Defendant no.1 and 2 in their written statement stated that suit of the plaintiff is not maintainable as the Government has enacted a special legislation namely Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 enabling financial institution to speedily recovery their dues. That present suit has been filed with some ulterior motives. That suit is an abuse and misuse of the process of law. That suit is liable to be rejected under the provisions of Order VII Rule 11 CPC. In totality defendants denied the allegations as made by plaintiff.
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4. Plaintiff filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 25.10.2013:
1. Whether the plaintiff is entitled to decree of declaration to the effect that demand notice number SDM /SV/REC/2011/MISC/NSIC Ltd., is null and void qua the plaintiff ? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from executing the above mentioned demand notice ? OPP
3. Relief.
6. In order to prove his case, the plaintiff examined himself as PW1 by tendering his evidence by way of an affidavit Ex.PW1/A. He also relied upon the documents Ex.PW1/1 (agreement dated 25.09.1984OSR), Ex.PW1/2 (order dated 30.07.1984OSR), Ex.PW1/3 (OSR), Ex.PW1/4 (letter dated 20.12.1984OSR), Ex.PW1/5 (letter dated 06.02.1985OSR), Ex.PW1/6 (letter dated 23.03.1985OSR), Ex.PW1/7 (letter dated 15.04.1985OSR), Ex.PW1/8 colly (letters dated 31.05.1985, 06.06.1985, 13.06.1985, 16.06.1985, 05.07.1985, 23.07.1985 & 25.07.1985OSR), Ex.PW1/9 colly (letters dated 12.08.1985, 29.09.1985, 04.04.1986 & 16.05.1986 CS No. 23/13 Page 5 of 8 Vinod Kumar Khera Vs NSIC Ltd. & Anr.
OSR), Ex.PW1/10 colly (letters dated 01.07.1986, 08.08.1986, 24/25.09.1986, 06.07.1987, 16.07.1987, 24.11.1987OSR), Ex.PW1/11 (letter dated 18.02.1988OSR), Ex.PW1/12 (legal notice dated 24.09.1990OSR), Ex.PW1/13 (letter dated 01.08.2011OSR), Ex.PW1/14 (recovery noticeOSR) and Ex.PW1/15 (reply to the said noticeOSR) and thereafter, closed his evidence.
Defendants, on the other hand, examined Sh.B. S. Tawar as DW1 who tendered his evidence by way of an affidavit Ex.DW1/A and thereafter, closed their evidence.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUES NO.1 & 2Whether the plaintiff is entitled to decree of declaration to the effect that demand notice number SDM /SV/REC/2011/MISC/NSIC Ltd., is null and void qua the plaintiff ? OPP & Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from executing the above mentioned demand notice ? OPP
8. Both these issues are taken up together being inter connected for the purposes of discussions and findings. The onus to prove these issues was upon the plaintiff. Ld. Counsel for the defendant has two fold argument. Firstly, that the suit is barred by Section 3(5) of UP Public Moneys (Recovery of CS No. 23/13 Page 6 of 8 Vinod Kumar Khera Vs NSIC Ltd. & Anr.
Dues) Act, 1972 and secondly, the present Court has no territorial jurisdiction to decide the suit. Both these arguments have been dealt as preliminary issue by the Ld. Predecessor of this Court and vide order dated 07.09.2013, the same has been decided in favour of the plaintiff and against the defendants. Defendants did not challenged the said order meaning thereby the said order attained finality so I would not deal the objections raised by the defendant again at this stage.
Now coming to the evidence led by the parties. All the documents relied upon by the plaintiff are not disputed by the defendants and stands admitted. It is also not disputed that the machine was delivered back to the defendants by the plaintiff in the year 1988. As per the plaintiff the machine was not working properly and the correspondence made by the plaintiff to the defendant and on complaint sending of technician by the defendant proves the said fact. Defendant stated in his evidence that plaintiff issued OK certificate to such effect but the defendant witness failed to produce on record any such certificate. Several correspondence sent by the plaintiff already on record not disputed by the defendant shows that the machine did not work properly and remained non functional.
As per record, defendants terminated the hire purchase agreement vide letter dated 24.09.1990 and thereafter, did not take any steps to recover the outstanding amount till the recovery notice sent in the year 2011.
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Admittedly, no suit has been filed by the defendants to recover the amount and even if they consider the recovery/demand notice Ex.PW1/13 and PW1/14 as procedure for recovering the amount then the same would be barred by Limitation Act. As per law time barred debt cannot be recovered unless any acknowledgment is given in writing which is not the case here. In view of the evidence led, the plaintiff has been able to discharge his burden of proof. Accordingly, both these issues stands decided in favour of the plaintiff and against the defendants.
Relief:
9. As a consequence to my findings on the above mentioned issues, the recovery/demand notice no. SDM/SV/REV/2011/MISC/NSIC LTD. issued by the defendant to the plaintiff stands declared null and void and defendants and their representative etc. are hereby restrained to execute the notice no.SDM/SV/REV/2011/MISC/NSIC LTD. for recovering the alleged amount of Rs.8,36,893/. In view of the same, suit of the plaintiff is hereby decreed. Parties to bear their own costs. Decree sheet be prepared accordingly.
10. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 27.09.2014 CJ02 (South)/Saket Courts
New Delhi/27.09.2014
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