Delhi District Court
Sh. Sanjay Jain vs M/S Gemini Vinyls Pvt. Ltd on 20 February, 2015
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In the Court of Anubhav Jain, Civil Judge05, Central District, Tis Hazari
Court, Delhi.
Suit No. 401/14
Unique ID No. 02401C0522562012
Sh. Sanjay Jain,S/o Sh. Bir Sen Jain,
Proprietor M/s. Vardhman Chemical,
1197, Baradari,
Behind Novelty Cinema,
Delhi06 ............Plaintiff
Versus
1. M/s Gemini Vinyls Pvt. Ltd.
Through its Directors Sh. Rajeev Khurana
And Smt. Meena Khurana,
2. Sh. Rajeev Khurana, Director
M/s Gemini Vinyls Pvt. Ltd.
3. Smt. Meena Khurana, Director
M/s Gemini Vinyls Pvt. Ltd.
All at:
E48, Mansarover Garden,
Near Kirti Nagar,
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd
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New Delhi ............. Defendants.
Date of institution: 06.11.2012
Date of final decision: 06.02.2015
Judgment
1. Present suit is filed for recovery of sum of Rs. 1,41,587/ by the plaintiff
against the defendant.
2. Brief facts of the case as per plaint are that plaintiff is the sole proprietor of
M/s. Vardhman Chemicals and dealing in the business of different types of
chemicals goods. It is stated that defendant is a Private Limited Company and
defendant no.2 and 3 are the Directors and incharge for the day to day affairs of
defendant no.1 and the goods were regularly purchased by both defendants no.2
and 3 for and on behalf of defendant no.1. It is further stated in the plaint that
defendants were purchasing the goods regularly from the shop of the plaintiff
and used to make payment installments. It is further stated in the plaint that
defendants purchased material from the plaintiff vide various invoice bearing
invoice no. R609 dated 31.12.2009 for a sum of Rs. 90,826/ It is further stated
that defendants also not furnished the complainant "C" Forms for the goods
supplied to them vide the aforesaid Bills and as such a sum of Rs. 5,921/ is also
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd
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against the defendants on account of Sales Tax. It is further stated in the plaint
that defendant promised the plaintiff that they will clear the outstanding
payment, but the defendants have failed to pay the same. It is further stated that
defendants have malafidely withheld the aforesaid amount , defendants are also
liable to pay interest to the complainant on aforesaid amount @ 18 % perannum.
After that plaintiff got issued a legal notice dated 09.08.2012 by courier as well
as speed post on 16.08.2012 to the defendants. However despite service of the
said legal notice, the defendants neither complied with the said notice nor sent
any response to the same. It is further stated in the plaint that cause of action
arose on 26.08.2010 and 01.11.2010 when the defendant purchases the goods. It
is further stated that cause of action again arose on 09.08.2012 when the legal
notice was got served but the defendant failed to comply with the said legal
notice or made any payment.
3. In reply thereof Written statement was filed by the defendant wherein under
preliminary objection it is stated that the present court does not have territorial
jurisdiction to try the present suit that the plaintiff has concealed material facts
that the suit is not filed by duly competent person and that the present plaint is
liable to be rejected under Order 7 Rule 11 CPC. In reply to the merits beside
denying other averments made in the plaint it is stated that defendant no. 1 was
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd
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doing manufacturing business at Biwadi Alvar, Rajastan and all purchases were
made by defendant no.1 at Biwadi. It is further stated that defendants have being
making payment of the purchases bill wise to messers Vardhman Chemicals and
the last payment of Rs. 48,364 was made on 20/01/2010 against the pending
dues. Defendant has further denied that goods worth Rs. 90,826/ were purchased
by the defendant vide in voice dated 31.12.2009. Defendant denied all the
remaining averments as made by the plaintiff in his plaint and prayed for
dismissal of the suit.
4. On the basis of the pleadings made by the parties following issues were framed
by the court vide its order dated 08.10.2013:
i) Whether the suit is bad for want of territorial jurisdiction, for want of cause of
action as well as for want of competence of the person who has filed the suit on
behalf of the plaintiff? OPD
ii) Whether the plaintiff is entitled to a decree of Rs. 1,41,587/ along with
pendente lite and future interest @ 18 % per annum as well as costs as prayed in
prayer clauses? OPP
iii) Relief.
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd
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5. In support of his case plaintiff has filed his affidavit in evidence Ex. PW1/A
and relied upon the documents i.e. Invoice bearing Invoice No. R609 dated
31.12.2009 for a sum of Rs. 90,826/ Ex. PW1/1, Legal Notice dated 09.08.2012
Ex. PW1/2, Registered postal receipts are Ex.PW1/3 to Ex. PW1/5, Report of
Acknowledgment is Ex. PW1/6, Courier Booking Receipts Ex. PW1/7 to PW
1/9, Two original returned envelops Ex. PW1/10 & Ex. PW1/110.
6. In support of their defence defendant has filed affidavit of Sh.Rajiv Khurana
which is Ex. DW1/A and relied upon the documents i.e. Statement of account for
the period 19.01.2010 to 25.01.2010 Ex. DW1/1.
7. I have heard ld. counsels for the parties and perused the case file minutely. My
issue wise findings are as follows:
Issue no. 1
8. Burden to prove present issue lies upon the defendant.
It is stated by the defendant that :
a) Suit is bad for want of territorial jurisdiction
b) Suit is bad for want of cause of action
c) Suit is bad for want of competence of person who has filed the suit.
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For sake of convinence it would be relevant to deal with each contention of the
defendant independently.
JURISDICTION
9. It is averred by the defendant that defendant no. 1 was doing manufacturing
business at Rajsthan, all cause of action took place within the jurisdiction of ,
Bhiwadi, Alwar, Rajsthan and no dealing took place at Delhi. It is stated that that
the orders were placed at Bhiwadi, Dist. Alwar and supplies were made at
Bhiwadi Dist. Alwar. It is further stated that goods were purchased by the
defendants at Bhiwadi and were supplied to the defendants at Bhiwadi.
In reply it is averred by the plaintiff that some of the payments and transactions
were made at Delhi and defendant are permanent residents of Delhi.
10. Before proceeding further on merits it would be relevant to to reproduce in
here section 20 CPC:
20. Other suits to be instituted where defendants reside or cause of
action arises.--Subject to the limitations aforesaid, every suit shall
be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually and
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voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally work for gain,
as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation --A corporation shall be deemed to carry on business at
its sole or principal office in India or, in respect of any cause of
action arising at any place where it has also a subordinate office, at
such place.
11. It would be further relevant to state in here observations made by Hon'ble
Apex court in A.V.M. Sales Corpn. v. Anuradha Chemicals (P) Ltd., (2012) 2
SCC 315
"14. It has often been stated by this Court that cause of action
comprises a bundle of facts which are relevant for the determination
of the lis between the parties. In the instant case, since the invoices
for the goods in question were raised at Vijayawada, the goods were
dispatched from Vijayawada and the money was payable to the
respondent or its nominee at Vijayawada, in our view, the same
comprised part of the bundle of facts giving rise to the cause of action for the suit. At the same time, since the petitionerdefendant in the suit had its place of business at Calcutta and the agreement for CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd 8 supply of the goods was entered into at Calcutta and the goods were to be delivered at Calcutta, a part of the cause of action also arose within the jurisdiction of the courts at Calcutta for the purposes of the suit. Accordingly, both the courts within the jurisdiction of Calcutta and Vijayawada had jurisdiction under Section 20 of the Code of Civil Procedure to try the suit, as part of the cause of action of the suit had arisen within the jurisdiction of both the said courts."
"20. A similar view was taken by this Court in Angile Insulations v. Davy Ashmore India Ltd. [(1995) 4 SCC 153] , wherein the Hon'ble Judges while referring to the decision of this Court in A.B.C. Laminart (P) Ltd. case [A.V.M. Sales Corpn. v.Anuradha Chemicals (P) Ltd., First Appeal (AS) No. 1352 of 1999, order dated 1812007 (AP)] , inter alia, held that where two courts have the jurisdiction consequent upon the cause of action or a part thereof arising therein, if the parties agree in clear and unambiguous terms to exclude the jurisdiction of the other, the said decision could not offend the provisions of Section 23 of the Contract Act. In such a case, the suit would lie in the court to be agreed upon by the parties."
12. Coming to the present case in hand Plaintiff's shop is at Delhi, Goods were supplied from delhi, invoices were prepared in Delhi. Further during the cross examination it is admitted by the defendant that payments were made to the plaintiff at Delhi only. Relevant extract of cross examination of defendant is as follows:
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd 9 " The defendant has been making payments to the M/s Vardhman Chemicals by cheque only and my banker is Bank of India, Paharganj."
It is further admitted by defendant during his course of examination that plainitff's office is at delhi and he use to supply goods to the defendant at Bhiwadi. Relevant extract of the cross examination is as follows: " The plaintiff office is situated at Khari Baoli Delhi but I never went to his shop. The plaintiff use to send material to Bhiwadi and I never gone to his shop"
Further it has been specifically stated in the invoice filed by the plaintiff that "
All disputes are subject to Delhi Jurisdiction only"
13. As such, in view of the law and facts discussed as goods were send from Delhi, payment was made by the defendant in Delhi and invoices were raised in Delhi it cannot be said that this court does not have jurisdiction to try present suit. NO CAUSE OF ACTION:
14. It is case of plaintiff that defendant purchased material from the plaintiff, and he failed to make payment against Invoice No. R609 dated 31.12.2009 for a sum of Rs. 90,826/ and also fails to furnish C form for the goods supplied. CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd 10
15. In reply it is stated by the defendant that he never made any purchase against above said invoice and he has already settled his accounts with the plaintiff and as such present suit is without any cause of action and is plaint is liable to be rejected under Order VII Rule 11 CPC.
16. It is settled principle of law that for the purpose of order VII rule 11 CPC facts as averred in the plaint are to be looked into. In this regard it would be gainful to refer herein observation made in Usha Gupta v. Subash Chand Tyagi, 2011 SCC 2012 AIR CC 359 at page 28 "4. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made has the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff. In Sri Kishan v. Shri Ram Kishan, 159 (2009) DLT 470 : 2009 (110) DRJ 323, a Single Judge of this Court observed thus, "Order 7 Rule 11 of the Civil Procedure Code contemplates that where the suit appears from the averments made in the plaint to be barred by any law, then the plaint can be rejected. The legal position is that to decide whether a plaint is laible to be rejected under Order 7 Rule 11, averments in the plaint have to be read without looking at the defence and thereupon it has to be seen whether on the averments made in the plaint under Order CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd 11 7 Rule 11 of the Code of Civil Procedure gets attracted. For rejection of the plaint under Order 7 Rule 11 the averments in the plaint should be unequivocal, categorical and specific leading to only conclusion that the plaint is barred......"
17. From the perusal of plaint it cannot be said that present suit of plaintiff is bad for want of cause of action.
COMPETENCE OF PERSON:
18. Present suit is filed by plaintiff Sanjay Jain and it is stated in the plainti that plaintiff is the sole proprietor of M/s Vardhman Chemicals.
19. Further during the cross examination it has been admitted by the defendant that he has been dealing with Sanjay Jain. Relevant extract from the cross examination is reproduced as under:: "I have been dealing with Mr. Sanjay Jain on behalf of M/s Vardhman Chemicals. (vol) Sh. Sanjay Jain had been coming to our factory bhiwadi as manager of M/s Vardhman Chemicals."
20. Defendant has placed on record no such document to show that plaintiff is not proprietor of M/s Vardhman Chemicals. Further it is admitted by the defendant that he was dealing with the plaintiff on behalf of M/s Vardhman Chemicals. As CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd 12 such defendant has failed to show that plaintiff is not proprietor of M/s Vardhman Chemicals and is not authorized to file suit on behalf of M/s Vardhman Chemicals.
In view of the facts and law discussed above present issue is decided against the defendant and in favour of plaintiff.
ISSUE NO. 2
21. Burden to prove present issue lies upon the plaintiff. It is staed by the plaintiff that defendants purchased material from the plaintiff vide various invoice bearing invoice no. R609 dated 31.12.2009 for a sum of Rs. 90,826/ It is further stated that defendants also not furnished the complainant "C" Forms for the goods supplied to them vide the aforesaid Bills and as such a sum of Rs. 5,921/ is also against the defendants on account of Sales Tax.
22. Defendant denied in his written statement filed by him as well as during the cross examination, fact regarding receipt of any good against invoice no. R609 dated 31.12.2009.
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23. In order to discharge the burden, plaintiff has placed on record Original Carbon Copy of Bill No. 609 dated 31.12.2009 for Rs. 90,826 and G.R. Receipt Mark A.
24. It is pertinent to state in here that neither the invoice nor the G.R. Receipt filed by the plaintiff bear any receiving of the defendant. Infact plaintiff fail to prove that goods as stated in Invoice No. R609 dated 31.12.2009 were received by the defendant. Further plaintiff has failed to prove G.R. Receipt filed by him by any independent witness, neither any statement of account or any Inventory register maintained by him in the ordinary course of business or any other document is filed by the plaintiff which can show that defendant is liable to pay such amount against the said sale or that such good are sold to the defendant.
25.In view of the observations made above, plaintiff has failed to discharge his burden of proof. Present Issue is decided against the plaintiff and in favour of defendant.
RELIEF: In view of the observations made above, present suit of the plaintiff is dismissed. Decree sheet be prepared accordingly.
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd 14 File be consigned to record room after due compliance. Pronounced in open court on 06.02.2015.
( Anubhav Jain ) Civil Judge05, Central District Tis Hazari Courts, Delhi Present judgment is consist of 14 pages and each page is signed by me.
CS No. 401/14 Sanjay Jain Vs Gemini Vinyls Pvt. Ltd