Delhi District Court
Mukesh Bansal vs M/S Pentagun Fabrics on 12 September, 2018
IN THE COURT OF MS. SUJATA KOHLI, ADDITIONAL DISTRICT
JUDGE, PILOT COURT,CENTRAL, TIS HAZARI, DELHI
CS No.995/18
Mukesh Bansal
S/o Sh. R.D. Bansal
Office at : F43A, Shop No.2,
Shastri Nagar, Delhi52. .........Plaintiff
Versus
1. M/s Pentagun Fabrics
Office AT : Plot No.125,
Phase1, Industrial Area Brahi,
District Sonipat, H.R.
Through its Partners
Aman Goyal and Amit Goyal
2. Aman Goyal
Partners of M/s Pentagun Fabrics
Office AT : Plot No.125,
Phase1, Industrial Area Brahi,
District Sonipat, H.R.
3. Amit Goyal
Partners of M/s Pentagun Fabrics
Office AT : Plot No.125,
Phase1, Industrial Area Brahi,
District Sonipat, H.R. ..........Defendants
CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.1 of 17
Date of filing of petition : 23.03.2018
Date of reserving judgment : 12.09.2018
Date of judgment : 12.09.2018
Suit for recovery of Rs.8,35,583/ (Rupees Eight Lakh Thirty Five
Thousand Five Hundred Eighty Three only)
JUDGMENT
1. Plaintiff has sought recovery of Rs.8,35,583/ against the defendant firm, mainly on the allegation that, he was into the business of yarn and that, the defendant firm through its partners had placed orders for the said product from time to time, and plaintiff also had been supplying the same. The accounts between the parties was a running account, as stated.
2. It is alleged that, as per the ledger account maintained by the plaintiff qua the defendant a sum of Rs.8,35,583/ was found due and outstanding against the defendant, and when the plaintiff demanded the defendant to pay up, the defendant assured to clear the outstanding amount by monthly installments of Rs.1,00,000/ each by direct payment into the bank account of the plaintiff.
3. It is claimed by the plaintiff that, the last payment claimed by the defendant was dated 28.07.2015. Plaintiff further alleges that, regarding CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.2 of 17 the remaining installments, defendant kept lingering over the amount and kept giving excuses not to give the same. Ultimately, the plaintiff was constrained to issue a legal notice dated 11.09.2017, but inspite of the same, the defendant failed to pay up.
4. Ultimately, the plaintiff having no other resort left, filed the present suit for recovery.
5. This court at the initial stage, had raised a query regarding limitation as well as territorial jurisdiction, since defendant shown to be located at Sonepat, Haryana. The GR form showing the dispatch of the goods by transport had not been filed and same was directed to be filed.
6. The counsel for the plaintiff at the initial stage, i.e. pre notice stage had stated that, the copies of the invoices were bearing acknowledgement of the defendant, but it was observed that, what was available on the court record was only a photocopy document. Copy of the invoices bearing the original acknowledgement were directed to be filed.
7. On the next date no such document was filed, but reserving all such objections for a later stage, court directed the issuance of summons. CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.3 of 17
8. After repeated attempts, the defendants were duly served only by 16.05.2018 but inspite of due service, they failed to appear and contest the suit. Accordingly, they were proceeded exparte by the order of the same date.
9. Plaintiff in its exparte evidence, examined himself on his affidavit Ex.PW1/A and relied upon documents mentioned there as Ex.PW1/1 to Ex.PW1/5 as under: Carbon copy of invoice bearing sl. No 978 dated 12.04.2014 bearing original stamp towards acknowledgement at point X and signature with mobile number in original dated 13.04.2014 - Ex.PW1/1.
Invoice bearing no.983 dated 24.04.2014, bearing acknowledgement stamp at point A and original signature in ink at point B alongwith original endorsement - Ex.PW1/2.
Statement of ledger account for the period from 01.04.2014 till 11.12.2014 - Mark PX3. (Document sought to be exhibit Ex.PW1/3 was observed to be a computer generated document not supported by a CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.4 of 17 certificate u/s 65B Evidence Act and not admissible perse and was only marked as Mark PX3). (later on the same document was got exhibited as Ex.PW2/1 through PW2.) Copy of legal notice dated 11.09.2017 alongwith an original postal receipt addressed to the defendant - Ex.PW1/4 and Ex.PW1/5.
10. Plaintiff, PW1, in his affidavit has reiterated the averments already made in the plaint and tried to support them with the documents, above referred.
11.PW2 Sh. Jatin Mangla tendered a certificate u/s 65B Evidence Act in support of the computer generated documents i.e. statement of account, referred above, which was Ex.PW2/1. The said certificate was Ex.PW2/2.
12.Plaintiff closed his exparte evidence vide proceedings dated 09.07.2018.
13.However, in the same proceedings, it was once again observed by the court that, there was a point of limitation involved in this case. Ld. Counsel referred to a payment entry dated 28.07.2015 for a sum of CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.5 of 17 Rs.1,75,000/ shown in the statement for the purpose of showing that, the cause of action itself had arisen form that point of time and that, limitation would have begun to run from the said date itself, and as such, the case would be well within limitation.
14.Court again, however, brought it to the notice of the counsel that, the said entry in the ledger statement of account could not be made out to the payment made by the defendant and not by someone else and in the absence thereof, the suit was appearing to be time barred.
15.At this stage, as requested, matter was adjourned for final arguments.
16.The proxy counsel who appeared on the next date, under instruction submitted that, he wanted to move some application for additional evidence and accordingly, the matter was adjourned.
17.Vide proceeding dated 24.07.2018, once again, observations were made with respect to the ledger statement of account and the entries therein and the point of limitation.
18.It was observed that, all that was shown in the ledger account and the particular entry was the name of a bank i.e. Karur Vyas bank Limited, but they could not be connected to the defendant in any way, in the CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.6 of 17 absence of any other supporting material. At that stage, Ld. counsel for the plaintiff verbally sought permission to lead additional evidence to connect the said entry with the defendant.
19.Matter was adjourned for additional evidence, however, no steps were taken in the meantime, for leading of the additional evidence. Matter was once again adjourned in the interest of justice.
20.Vide proceedings dated 21.08.2018, plaintiff stopped putting appearance altogether, either through counsel or in person, nor any steps had been taken to summon the witness who had been permitted to recall as an additional witness. Once again, extending its indulgence, the court adjourned the matter.
21.Vide proceedings dated 30.08.2018, once again same remained the status in this case in both respect, i.e. non appearance as well as no steps. By abundant caution, the court gave one more opportunity and adjourned the matter for the same purpose.
22.Vide proceedings dated 07.09.2018 also, the plaintiff has failed to availed the opportunity which in fact was quite surprising. Even so, just by an added indulgence, the court yet again decided to give one more CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.7 of 17 opportunity to the plaintiff and again listed the case for another date for the same purpose.
23.Today again, the status of this case remained the same in all respect and plaintiff evidently had no evidence to be called. As such, the opportunity for the additional evidence was closed.
24.Upon perusal of the statement of the ledger account Ex.PW2/1, the business dealings with the defendant are shown to have begun on 01.04.2014, with an opening balance as zero, thereafter sale has been shown through two invoices dated 12.04.2014 and 24.04.2014 for a sum of Rs.9,01,388/ and the second one for Rs.10,25,056/. Apart from these two invoices, there is no other sale shown and these two sales are reflected in the invoices already Ex.PW1/1 and Ex.PW1/2.
25.Thereafter, the credit column showing the payment to have come through bank namely Karur Vyas Bank Ltd. in different sums ranging from Rs.2,50,000/ bearing first of such payment dated 22.05.2014 and and Rs.1,25,000/ being last of such payment dated 11.12.2014. Apart from the fact that, these payments cannot be connected with the defendant in any way and cannot be said that, they were being made by CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.8 of 17 the defendant or for that matter by anyone else, these were showing only the name of the bank through which the payments would have come.
26.Similarly, there is again a credit entry dated 28.07.2015, the one relied upon by the plaintiff for the purpose of limitation, but for the same reason, it remained unproved that, the payment had come from the defendant, and inspite of endless opportunities granted to the plaintiff to call the record of the bank and to establish that the payments were actually been made by the defendant.
27.A ledger account is an account maintained by one party i.e. Seller qua the buyer and in the absence of any other material, it can only be treated as a self serving document.
28.Going by the two invoices, which also were only carbon copies, and secondary piece of evidence, the plaintiff has never sought any permission to lead any secondary evidence, much less been granted the same.
29.The plaintiff could have got produced the record of the transport firm through which the goods had been dispatched and that also would have thrown light on the point as to whether indeed part of cause of action had CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.9 of 17 arisen at Central Delhi even or not, as on the point of territorial jurisdiction, keeping in view the residence of the defendant shown at Haryana, the contention of the plaintiff had been that, part of cause of action had arisen at Central Delhi. For this, the plaintiff needed to establish it by evidence that, indeed, the goods had been dispatched form Central Delhi, to even bring about this case within the jurisdiction of the courts at Central Delhi.
30.The plaintiff who failed to availed the opportunity for additional evidence has also miserably failed to establish even on merit, the actual dispatch of goods, their receipt by the defendant and all this they could easily have done by calling the transport record i.e. the consignment notes. As such, not only from the view of territorial jurisdiction but even on merits, the plaintiff has failed to prove its case on the merits.
31.Apart from this, the two invoices relied upon, were both of the year 2014 i.e. dated 12.04.2014 and 24.04.2014, whereas the present suit has come to be filed only on 24.03.2018. The legal notice EX.P1/4, copy of which has been relied upon, was also seen to be issued only on 11.09.2017, CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.10 of 17 when the limitation period of three years had already expired much before i.e. by 23.04.2017.
32. It is the settled legal position that, a dead claim cannot be revived simply by issuance of a legal notice as and when the plaintiff chooses to do so after the limitation period.
33.Furthermore, the contention of Ld. Counsel for plaintiff made during the earlier proceeding that the defendant had been going on making the payment and the last payment made on 28.07.2015 and that taking the last cause of action from that point of time, the suit filed in April, 2018 would have been within limitation period of 3 years is quite misconceived, for the simple reason that, this fact of the part payment having been made by the defendant and not by anyone else for that matter, also has remained unproved.
34.The plaintiff could very well have called the bank record to establish the connection between the defendant and the said payments, but which also, the plaintiff opted not to do.
35.It is felt necessary to refer to the particular proceedings of this case, at this stage, as under : CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.11 of 17 Date Proceedings 09.07.2018 Present:Sh.Naveen Chauhan, Associate Counsel for the plaintiff.
PW2 Sh. Jatin Mangla examined and discharged. Vide separate statement of Associate Counsel for the plaintiff, PE stands closed.
Since the matter is exparte and not being contested, same is taken up for final arguments.
There is point of limitation involved in this case. Associate Counsel refers to payment entry shown in statement dated 28.07.2015 i.e. of Rs.1,75,000/. However, from the said entry, it cannot be made out that this payment was made by defendant. In the absence of same, suit will be time barred.
At this stage, as requested by Associate Counsel, main counsel would like to address arguments.
List for final arguments on 13.07.2018 at 2.30pm. Date given as per diary and convenience of Ld counsel.
Sd/ (SUJATA KOHLI) Additional District Judge,(Central), Pilot Court, Delhi 09.07.2018 24.07.2018 Present : Sh. Naveen Chauhan, Ld. Associate Counsel for the plaintiff.
Defendant is exparte.
CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.12 of 17
Date Proceedings
Matter taken up for exparte final arguments. No doubt, that, no one is contesting this case on behalf of the defendant, however, the fact remains that, the suit on the face of it, appears to be time barred.
The two invoices on which the case is based, mainly were of the year 2014, however, the ledger account maintained by the plaintiff is showing a running account showing off and on payments, and Ld. Associate counsel for the plaintiff is relying upon the statement of account and the payments shown therein to extend the limitation as under S.18 and 19 of Limitation Act.
However, on perusal of the Statement of Ledger Account at page11 onwards, it cannot be made out from a single entry even that, these payments were being made by the defendant, and for that matter, not by someone else.
All that is shown is the name of the bank i.e. Karur Vyas Bank Ltd., and not at a single point and entry, the name of the defendant has been reflected.
At this stage, Ld. Associate counsel for the plaintiff seeks permission to lead additional evidence on this aspect and permission to summon the concerned bank.
In the interest of justice, since the case is not being contested by the defendant, either, permission to lead additional evidence is granted. However, appropriate application for summoning of the witnesses/records, be filed latest by tomorrow.
Matter shall be listed for additional evidence of the plaintiff on 31.07.2018 (PL).
Date is given as per the convenience and diary of Ld. Counsel.
Sd/
(Sujata Kohli)
Addl. District Judge (Central)
CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.13 of 17
Date Proceedings
Pilot Court/24.07.2018
31.07.2018 Present:Ld counsel for the plaintiff.
Matter is listed for additional PE, as this is exparte case.
However, on the face of it, the case is beyond limitation and barred by time. Plaintiff relied upon some payments entries stated to have been made in the account of plaintiff by defendant. However, said statement of account on record not reflecting as to who has made these payments.
Let, the said record having relevant entry of Rs.1,75,000/ dated 28.07.2015 through The Karur Vyasya Bank Ltd, showing deposit in the account of Bansal Sales Corporation be produced after summoning the bank record, upon furnishing complete particulars of the account number, branch, etc on filing of PF. Copy of the statement relied upon by plaintiff be also sent along withs summons.
List for additional evidence of the plaintiff on 09.08.2018.
Date given as per diary and convenience of Ld counsel.
Sd/ (SUJATA KOHLI) Additional District Judge, (Central), Pilot Court, Delhi 31.07.2018 21.08.2018 Present:None.
Matter is listed for additional evidence of plaintiff. Court has already granted permission for additional evidence vide order dated 31.07.2018.
However, somehow, thereafter, whereas the plaintiff CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.14 of 17 Date Proceedings was to move appropriate summoning application with all the particulars, the plaintiff again moved an application seeking enlargement of time for moving application for leading additional evidence.
Such like application was not even required when the permission had already been granted on the oral request vide above said order.
Application at hand was absolutely not required and same is out of place, and being infructuous same is disposed of accordingly.
Plaintiff was only required to move application for summoning. However, as per application for summoning which also filed separately, particulars of the bank, etc have been furnished.
List again for additional evidence and let, the said record be summoned on filing of PF. Diet money shall be payable at spot. Steps be taken within three days.
List for additional evidence on 30.8.2018.
Sd/ (SUJATA KOHLI) Additional District Judge, (Central), Pilot Court, Delhi 21.08.2018 30.08.2018 Present: None.
Matter is listed for additional evidence in this exparte case. However, none is present for the plaintiff nor any steps taken whatsoever. There is no reason to extend further opportunity. However, in the interest of justice, one more opportunity is being extended, as last and final opportunity.
CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.15 of 17
Date Proceedings
List for additional evidence on 07.09.2018.
Sd/ (SUJATA KOHLI) Additional District Judge, (Central), Pilot Court, Delhi 30.08.2018 07.09.2018 Present : None.
Matter is listed for additional exparte evidence of the plaintiff, however, none is present for the plaintiff.
In the interest of justice, matter is adjourned for the same purpose.
List again for additional exparte PE on 12.09.2018, as last and final opportunity.
Sd/ (SUJATA KOHLI) Additional District Judge, (Central), Pilot Court, Delhi 07.09.2018
36. Today, again, the status remains the same.
37. Plaintiff has miserably failed to prove from evidence that, part of cause of action has arisen at Central Delhi. Plaintiff failed to prove CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.16 of 17 the case on merit and last and not the least the case is absolutely time barred.
Suit is dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 12th September, 2018.
(SUJATA KOHLI) Additional District Judge, Pilot Court/Central District Tis Hazari Courts, Delhi.
pk CS No.995/18 Mukesh Bansal vs. M/s Pentagun Fabrics & ors. page No.17 of 17