Delhi District Court
M/S Millstock & Co vs M/S Devi Laxmi Extrusion Works on 3 February, 2016
1
In the court of Anubhav Jain, Ld. Civil Judge-05, Central District, Tis Hazari
Courts, Delhi
CS No. 152/14
Unique ID No. 02401C0699422003
M/S Millstock & Co.
A partnership Firm, duly registered under
Indian Partnership Act, and having its place of
Business at Hauz Quazi, Delhi
Through one of its partners Sh. Suresh Chander Chaudhary ...........Plaintiff
Versus
1.M/S Devi Laxmi Extrusion Works, 29, Ramanuj Computer Complex, Okhla Industrial Estate, Phase I, New Delhi-110020, Service on it be effected through its partners
2. Sh. Krishan Sehgal (Since deceased), Partner of M/S Devi Laxmi Extrusion Works, R/o 130, Panchsheel Park, New Delhi-110014 Through His following Lrs-
a) Mrs. Shanta Sehgal CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 2 W/o Late Dr. Krishan Sehgal R/o N-130A, Panchila Park New Delhi-110017
b) Ms. Sangeeta Anand W/o Sh. Sanjeev Anand D/o Late Dr. Krishan Sehgal R/o N-130A, Panchila Park, New Delhi-110017
3. Sh. Atul Kotra, Partner of M/S Devi Lakshmi Extrusion Works R/o B-13 C, Gangotri Enclave, Alaknanda, New Delhi-110019 ...........Defendants Date of institution: 06.11.2003 Date of final Decision: 03.02.2016
1. Present suit for recovery of Rs. 71,676.09/- along interest 18% is filed by the plaintiff firm against the defendant.
2. It is stated by the plaintiff in its plaint that plaintiff firm is duly registered partnership firm and is dealing in Hardware, Engineering, Tools, Mill stores and Suresh Chand Chaudhary is one of the partner who is aware of the facts of the case and is competent to sign and verify the present plaint on behalf of plaintiff firm. It is further stated that CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 3 defendant no. 1 is a firm and defendant no. 2 and 3 are its partners. It is further stated that defendants were purchasing hardware, machine tools and other engineering goods from the plaintiffs on credit vide various bills starting from Bill No. 22611 dated 02.04.2000 and ending Bill No. 22611 dated 09.11.2000. It is further stated that total amount of bills was Rs. 68,891.09/- and defendants had paid a sum of Rs. 20,000/- only by way of cheque and sum of Rs. 48,891.09/- is still due and pending. It is further stated that plaintiff called upon defendants vide letter dated 09.09.02 and 25.09.2002 to pay the dues to the plaintiff but the same was of no effect. It is further stated that on letter dated 25.09.02 defendant no. 3 in his own hands had confirmed the dues as stated in the statement of account and also acknowledged the amount due to the plaintiff. It is further stated that the plaintiff further served a legal notice dated 24.09.2003 upon the defendant however same was of no effect. The plaintiff further sought interest @ 18% on the principal sum of Rs. 48,891.09 from the date of bill till realization of the amount. By way of the present suit plaintiff has sought recovery of Rs.71,676.09/-along with pendente lite and future interest @ 18% per annum from the defendant.
3. In reply thereof written statement was filed by the defendant no. 1 & 2 wherein it is stated that the present plaint does not disclose any cause of action; that the plaintiff has no locus standi to file the present suit; that the present suit is barred by law of limitation; that suit is bad for mis joinder of necessary party as defendant no. 3 is no more of partner of defendant no. 1 firm. It is further stated that goods as alleged in the bills were never supplied to the defendants and the documents/bills as referred in suit are false and baseless. It is stated by the answering defendant in their written statement that defendant no. 1 is partnership firm and was constituted in the year 1998 by defendant no. 3 ( 1/3 share) and defendant no. 2 (2/3rd share). It is further stated by answering defendants that CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 4 defendant no. 3 was running another firm by name of M/S Extrusion India in Narela and as such he was unable to supervise the management and day to day working of defendant no. 1. It is further stated that defendant no. 2 also, because of his age factor could not supervise the management and day to day working of defendant no. 1 and hence he executed a General Power of attorney in favour of his nephew Devesh Saigal to look after financial transaction as well as to supervise day to day functioning of the firm along with authority to sign the cheques, receive bills etc. It is further stated that defendant no. 3 ceased to be a partner in the firm in the April 2003 and Mr. Devesh Saigal and his brother Mr. Yogesh Saigal were inducted as a partner in the defendant no. 1 firm having share 1/3rd share each.
It is further stated that plaintiff furnished one set of bills on 4 th April 2002 and as per their statement of account, the plaintiff demanded an amount of Rs. 48,990.65/-from the defendants and they attached copies of bill No. 22608, 22609, 22610 and 22611 amounting to total of Rs. 29,215.59/-. It is further stated that on closer inspection of the bills, defendant noted that as per the said bills the goods were allegedly supplied on 28.04.2001 and even after investigation the defendants were unable to trace any delivery of goods in April 2001.
It is further stated that after receiving a notice from the plaintiff, defendants requested the plaintiff to supply copy of bills in compliance of which plaintiff provided the statement on 30.11.2002 in which bill No. 22540, 22541, 22543 and 22544 all dated 02.04.2002 were mentioned as pending which was contradictory to the plaintiff earlier statement dated 04.04.02. It is further stated that defendants again contacted the plaintiff and the plaintiff assured the defendants that bills were rectified however to the suprise of the defendant, the plaintiff has filed the present suit on basis of 3 rd sets of bill. Answering defendants admitted the payment of sum of Rs. 20,000/- to the plaintiff.
CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 5 Defendant denied all other averments as made by the plaintiff in its plaint and prayed for dismissal of the suit.
4. It is pertinent to state in here that defendant no. 3 was proceeded ex parte vide court order dated 30.04.2004.
5. In reply to the written statement, replication was filed by plaintiff wherein it is sated that defendants have to make payment as per bills placed on record. It is further stated that in one of the handwritten statement, number of bills has been mentioned wrongly and that said bills relates to various other parties and does not relate to the defendants. It is further stated that goods received vide challan attached to the bills 22608 to 22611 were taken by defendants initially on approval basis however after receipt of the goods defendants did not communicate any approval or rejection and seeing no reasons from defendants plaintiff ultimately issued bills against those goods. Plaintiff denied all other averments as made by the defendants in their written statement and reiterate those as made by it in its plaint.
6. On the basis of pleadings filed by the parties following issues were framed by the court vide order dated 21.07.04:
i) Whether there is no cause of action to file the present suit in favour of the plaintiff and against the defendant? OPD
ii) Whether the person who has filed the suit has no locus standi to file the present suit? OPD
iii) Whether the plaintiff has not file the suit within limitation period prescribed under limitation Act? OPD CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 6
iv) Whether the plaintiff is entitled to decree for recovery of suit amount as prayed for? OPP
v) Relief
7. Plaintiff in support of his case filed affidavit of Sh. Suresh Chander Chaudhary Ex PW-1/A who relied upon certificate of registration Ex PW-1/1, twelve Bills bearing No. 21908 dated 09.11.2000 to 22611 dated 28.04.2001 Ex PW-1/2 to Ex PW-1/13, twelve delivery Notes ( bearing signatures of the defendant No. 3 Sh. Atul Kotra and one sh. Ashok Kumar Ex PW-1/2A to Ex PW-1/13A, A/c ledger of year 01.04.2000 to 31.03.2001 Ex PW-1/14, A/c ledger of year 01.04.2001 to 31.03.2002 Ex PW-1/15, A/c ledger of year 01.04.2002 to 31.03.2003 Ex PW-1/16, A/c ledger of year 01.04.2003 to 31.03.2004 Ex PW-1/17, letter dated 25.09.2002 Ex PW-1/18 to Ex PW-1/19, Reminder letter dated 09.09.2002 + one postal receipt Ex PW-1/20 to Ex PW-1/21, three postal receipt of sending letter dated 25.09.02 Ex PW-1/22 to Ex PW-1/24, three proof of delivery of registered AD letter dated 25.09.2002 Ex PW-1/25 to Ex PW-1/27, demand letter dated 04.04.2002 and two postal receipts PW-1/28 to PW-1/30, demand letter dated 06.07.2002 and two postal receipts PW-1/31 to PW-1/33, legal notice dated 24.09.2003 +three postal receipts + two AD cards Ex PW-1/34 to Ex PW-1/39.
8. In support of their defence, answering defendants has filed affidavit of Sh. Yogesh Saigal. That thereafter an application u/s 151 CPC was moved on behalf of defendant no. 1 firm stating therein that Sh. Yogesh Saighal has retired from the defendant no. 1 firm on 31.03.2007 and that Sh. Devesh Saighal who was partner in the defendant no. 1 firm be allowed to substitute in place of Sh. Yogesh Saighal. Said application of the defendant no. 1 firm was allowed by court vide its order dated 17.12.08 thereafter CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 7 defendant filed affidavit of Sh. Devesh Saighal. It is pertinent to state in here that said witness cross examined at length by counsel for the plaintiff but affidavit of this witness never tendered in evidence. Witness relied upon authority letter dated 15.02.2008 Ex DW-1/1, authority letter dated 01.04.04 Ex DW-1/2, authority letter dated 25.01.2006 Ex DW-1/3, partnership deed-cum-retirement deed dated 31.03.07 Ex DW-1/4, registration certificate of defendant firm Ex DW-1/5, copy of partnership deed-cum-retirement deed dated 31.03.2003 Ex DW-1/6, statement of account dated 30.11.2002 Ex DW-1/7, original letter 04.04.02 + four bills No. 22608 to 22611 Ex DW-1/8 to Ex DW-1/8A, original set of pending bills furnished by the plaintiff on 4 th April 2002 from bills No. 22608 to 22611 and all delivery notes all dated 28.04.2001 Ex DW-1/9A to Ex DW-9/A and written statement Ex DW-1/10.
9. I have heard Ld. Counsel for the parties and perused the case file carefully. My issue wise findings as follows:-
Issue No. 1 Whether there is no cause of action to file the present suit in favour of the plaintiff and against the defendant? OPD
10. Burden to prove present issue lies upon the defendants. The present suit is filed by the plaintiff against the defendants on the strength of bills stating therein that plaintiff had supplied the goods worth of Rs. 71,676.09/- to the defendants and defendants have failed to make complete payment for the goods so delivered despite repeated request and reminders from the plaintiff. By way of present suit, plaintiff has sought recovery of the above said amount along with interest @ 18 % per annum. As such plaintiff has shown cause of action existing in his favour.
CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 8 On the other hand, defendants have failed to prove or show during the course of his arguments or by way evidence that plaintiff does not have any cause of action to file the present suit against the defendants.
In view of the same the present issue is decided against the defendants and in favour of the plaintiff.
Issue No.2: Whether the person who has filed the suit has no locus standi to file the present suit? OPD
11. Burden to prove the present issue lies upon the defendants. It is stated by the defendants in their written statement that signatory of the suit had neither filed any authority or disclose any authorization for filing the suit on behalf of plaintiff. On the other it is stated by the plaintiff that the present suit is filed by registered partnership firm through its partner.
Present suit is filed by M/S Mill Stock & Co. stated to be registered partnership firm through its partner Sh. Suresh Chander Chaudhary. Plaintiff has filed Form A maintained u/s 59 of Indian Partnership Act, perusal of which reveals that Sh. Suresh Chander Chaudhary is one of the partner and the plaintiff's firm.
Order XXX rule 1 CPC provides:
Suits by or against Firms and persons carrying on business in names other than their own
1. Suing of partners in name of firm- (1) 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, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 9 of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such person.
From the above said provision it is clear that suit can be filed in the name of partnership firm. As such the contentions so raised by the defendants that the signatory of the suit has not filed any authority to file the present suit does not hold any merits. In view of the same present issue is decided against the defendants and in favour of plaintiff.
Issue No. 3:Whether the plaintiff has not file the suit within limitation period prescribed under limitation Act? OPD
12. Burden to prove the present issue lies upon the defendants. As per Article 14 of Limitation Act, 1963 a suit for recovery of price of goods sold and delivered where no fixed period of credit is agreed upon, can be filed within three years of date of delivery of goods.
Present suit is filed by plaintiff seeking recovery of bill dated 09.11.2000, 10.11.2000, 23.11.2000, 29.11.2000, 11.12.2000, 20.04.2002, 28.04.02. Present suit is filed on 06.01.2003 i.e. within period of 3 years from the date of first bill. In view of the same present suit is filed within period of limitation.
Considering the same present issue is decided against the defendants and in favour of plaintiff.
Issue No. 4: Whether the plaintiff is entitled to decree for recovery of suit amount CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 10 as prayed for? OPP
13. Burden to prove the present issued lies upon the plaintiff. It is the case of the plaintiff that defendants had purchased hardware, machine tools and other engineering goods from the plaintiff on credit vide various bills bearing bill No. 22611 dated 02.04.2000 to bill 21908 dated 09.11.2000 and the defendants had paid sum of Rs. 20,000/- by way of cheque and sum of Rs. 48,990.65/- still dues towards the plaintiff. On the other hand it is stated by defendant no. 1 & 2 that the goods as alleged in the bills were never supplied to the defendant no. 1 & 2 and that said bills are false and baseless.
14. Before proceeding further with present issue on merit it would be relevant to state in here the facts admitted by defendant no. 1 & 2 in order to narrow down the controversy in issue:
i) That Sh. Atul Kotra i.e. defendant no. 3 was a partner in defendant no. 1 partnership firm in the relevant period i.e. year 2000-04.
ii ) That plaintiff has paid a sum of Rs. 20,000/- to the defendants.
15. Plaintiff in order to prove his case has placed the bill bearing No. 21908 dated 09.11.2000 for Rs. 4578.77/-, bill bearing No. 21909 dated 09.11.2000 for Rs. 7536.04/-, bill bearing No. 21910 dated 09.11.2000 for Rs. 6884.20/-, bill bearing No. 21911 dated 10.11.2000 for Rs. 2085.76/-, bill bearing No. 21912 dated 10.11.2000 for Rs. 5052.63/-, bill bearing No. 21920 dated 23.11.2000 for Rs. 4506.89/-, bill bearing No. 21926 dated 30.11.2000 for Rs. 4359.53/-, bill bearing No. 21930 dated 11.12.2000 for Rs. 4771.44/-, bill bearing No. 22608 dated 02.04.2002 for Rs. 6823.44/-, bill bearing No. 22609 dated 02.04.2002 for Rs. 1404.20/-, bill bearing No. 22611 dated 02.04.2002 for Rs. 2822.15/-
CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 11 and bill bearing No. 22610 dated 02.04.2002 for Rs. 18066.24/-.
16. The said bills are further accompanied with challan i.e. good delivery receipt which bears the signature of Atul Kotra and Ashok Kumar. Plaintiff further in order to prove that said good delivery receipts were signed by Atul Kotra and Ashok Kumar had appointed as hand writing expert who compared the signature of Sh. Atul Kotra and Ashok Kumar in the said Challan from the signature of Atul Kotra and Ashok Kumar in partnership-cum-retirement deed Ex PW-1/16 and file the report Ex PW-2/B in the said report it was opined by expert that the signature of Atul Kotra and Ashok Kumar in the goods delivery receipts as well as in the partnership-cum-retirement deed were one and the same. The said report was proved by said expert by filing his affidavit which is Ex PW-2/A and said expert was cross examined at length by the counsel for the defendants. The plaintiff has further placed on record letter dated 09.09.2002 as well as letter dated 25.09.2002 whereby the plaintiff firm has given details of all the pending bills and has asked the defendants to pay the outstanding dues. It is pertinent to state in here that letter dated 25.09.2002 bears the endorsement by Atul Kotra confirming the said statement to be correct and further admitting the liability of defendant no. 1 firm towards the plaintiff firm.
17. It is pertinent to state in here that plaintiff has further placed on record ledger account of defendant firm maintained by the plaintiff Ex PW-1/19 from period 01.04.2000 to 02.04.2002. The plaintiff had also during the course of his cross examination had filed ledger account of defendant no. 1 firm maintained by the plaintiff Ex PW-1/X-1. Both the ledger account Ex PW-1/19 and Ex PW-1/X-1 does not tally with each other and the plaintiff witness failed to explain the reason for difference of the CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 12 amount in both the ledgers. Relevant portion of cross examination is being reproduced as under:
" It is correct that Ex PW-1/19 i.e. copy of ledger does not tally with original ledger produced in the court today. Copy of original ledger is Ex PW-1/X-1. I cannot say how difference is coming in the copy and original ledger................"
Furthermore, during course of cross examination it is stated by the plaintiff witness that "....... No one else than Atul Kotra came to my office in regard to the business. Atul Kotra never brought any purchase order from the defendant. Vol. ( When he personally was coming to collect the goods there was no occasion of bringing the purchase order. He used to carry a goods on his own vehicle. It is incorrect to suggest that the purchase bill was prepared in the name of Atul Kotra. I never inquired whether defendant is registered or not..............."
18. Considering the evidence led by the plaintiff, although the plaintiff is able to show that some bills were issued against the defendant no. 1 firm however as the plaintiff has failed to prove his ledger account.
19. The defendant no. 1 & 2 in their written statement had stated that the bills so relied upon by the plaintiff firm are false and fabricated,( although it is admitted by answering defendants that Atul Kotra was partner in defendant no. 1 firm at the relevant period of time). As such it is clear that no payment was ever made by the defendant no. 1 firm to the plaintiff firm against the said bills.
20. Defendants no. 1 and 2 further had admitted that a sum of Rs. 20,000/- was paid by them to the plaintiff firm, which goes to show that plaintiff firm and defendant no. 1 firm were engaged in business dealings with each other. Defendant no. 1 firm has stated that said payment was made in full and final settlement of dues. Defendant no. 1 and 2 CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 13 had however for the reasons best known to them does not even state as to against which liability said amount of Rs. 20,000/- was paid by them. It is not even stated in the pleadings as to against which business transactions said payment was made. Furthermore, defendants no. 1 and 2 furthermore not placed on record any statement of account or inventory register in order to show that said goods were never received by the plaintiff firm.
21. It is further pertinent to state in here that Shri Ashok Kumar (who has signed delivery challan along with Atul Kotra) was not unknown to the defendants. During the cross examination it is stated by the defendant witness:
" At this stage, witness is shown Ex DW-1/6. It is correct that I became the partner of defendant no. 1 on execution of Ex DW-1/6. The same was executed in my presence and I sign the same at point A-1. It is wrong to suggest that executants of Ex DW-1/6 were not present at the time of execution of the same. Signature of all executant including two witnesses were done in my present. Attesting witnesses of Ex DW-1/6 were present at the time of execution of same and have signed the same in my presence. All 5 pages at point A-2 of Ex DW-1/6 were signed by me at bottom of same. The signatures of Mr. Atul Kotra were at point CC on all pages. Mr. Atul Kotra have signed Ex DW-1/6 in my presence and hence, I identified his signatures. Witness namely Ashok Kumar has signed at last page at point D. I do not know witness Ashok Kumar personally."
22. Furthermore, defendants in order to refute the evidence led by the plaintiff, had not examined even a single witness, who can corroborate the facts stated by them in their written statement. Witness Devesh Saigal who appeared as witness on behalf of defendants has stated that he was not partner in the defendant no. 1 firm at the relevant period. Relevant portion of the cross examination is being reproduced as under:
" I become partner of defendant no. 1 on 01.04.2003. Prior to my joining, defendant no. 1 has a partner Dr. Krishan Saigal and Mr. Atul Kotra were CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 14 partners of defendant no. 1. Mr. Atul Kotra was retired on 31.03.2003. I have not seen Mr. Atul Kotra working in defendant no. 1."
Considering the fact that defenant witness was not partner with defendant no. 1 at the relevant period of time, his testimony cannot be of any help to the answering defendants.
23. It is further stated by the defendants that as per bill No. 22608, 22609, 22610 and 22611 alleged goods were supplied on 28.04.2001 however the bills were raised after about one year i.e. 02.04.2002. In reply thereof it is stated by the plaintiff that goods received vide above said challans were taken by the defendants initially on approval basis however after receipt of the goods defendant did not communicate any approval or rejection and as no response was received from the defendants plaintiff ultimately issued the bills. It is stated by the defendants that despite investigating throughly they were unable to trace out the goods in April 2001.
The plaintiff in its suit had well explained the reasons for the delay of issuing the bill. The defendant however had not even placed on record even a single documents to show that said goods were never received by the defendant no. 1 firm from the plaintiff.
24. As such, considering the circumstances in total:
a) Plaintiff, by way of expert opinion shows that bill and delivery challans were signed by Atul Kotra and Ashok Kumar
b) Admission of defendant that no payment qua the said bills were ever made (stating the same to be forged, although no evidence was brought in support of said contention) CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 15
c) Defendant admitted making payment of Rs. 20,000/- to the plaintiff firm
d) Defendant admitted that Shri Atul Kotra was partner with the defendant no. 1 firm at the relevant period of time
e) No evidence placed on record by the defendant no. 1 to refute the contention of the plaintiff firm i.e. defendant no. 1 neither placed on record any statement of account to show as to against which payment of Rs. 20,000/- was made by them to the plaintiff, neither placed on record any inventory register to show that said goods were never received from the plaintiff firm
f) Witness appearing on behalf of defendant was not a partner of the defendant no. 1 at the relevant period of time and was not aware of the transactions eneterd into by defendant no. 1 at relevant period of time It is held that Atul Kotra on behalf of defendant no. 1 received the goods from the plaintiff firm. In view of the same plaintiff is entitled to recover remaining amount of Rs. 48,890.65/- from the defendants. Plaintiff has further sought interest @ 18 % per annum from date when the said amount become due till the payment of the same.
Considering the same to be exohorbitant, this court is of the view that interest @ 12% per annum from the date when the said amount become due till the payment of same, shall serve interest of justice.
Relief:
Considering the law and facts discussed above, suit of the plaintiff is partly decreed. Plaintiff is entitled to recover remaining amount of Rs. 48,890.65/-along with interest @ 12% per annum from the date when recovery amount became due till the recovery of CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works 16 the same, from defendants, who shall be liable to pay the same jointly and severally. No order as to cost. Decree-sheet be prepared accordingly.
File be consigned to record room after due compliance. Pronounced in open court on 03.02.2016.
( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consist of 15 pages and each page is signed by me.
CS No. 152/14 M/S Millstock & Co. Vs. M/S Devi Laxmi Extrusion Works