Delhi District Court
Baagwan India vs Kissan Seeds Pesticide Corner on 19 January, 2023
IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL COURT-2)
SOUTH DISTRICT, SAKET COURTS: NEW DELHI
CS (COMM) 414/2021
Baagwan India ......Plaintiff
401, 4th Floor, Z-6,
Phase-5, Aya Nagar,
New Delhi - 110047
versus
Kissan Seeds Pesticide Corner ......Defendant
Village Majhotali,
P.O & Tehsil Chopal,
Shimla-171211
Date of institution : 09.12.2021
Date of arguments : 07.01.2023
Date of judgment : 19.01.2023
JUDGMENT
1. This is a suit for recovery of Rs. 5,04,560/-. 1.1 In brief, facts of the case are that the plaintiff is a partnership firm registered under Indian Partnership Act 1932 having its office at 401, 4th Floor, Z-6, Phase-V, Aya Nagar, New Delhi-110047. Case of the plaintiff is that defendant approached the plaintiff for purchase of corrugated boxes and gift packs for packing of apples. As per specification of defendant, plaintiff prepared corrugated boxes through order placed by defendant vide bill bearing no. GST/208-19/107 dated 28.09.2018 for 4500 corrugated apple boxes @ 45 each for an amount of Rs. 2,26,800/- including GST and bill bearing no. GST/2018-19/108 dated 14.10.2018 for 2000 corrugated boxes @ Rs. 50 each and Baagwan India vs Kissan Seeds Pesticide Corner Page no. 1 of 19 4000 gift packs @ Rs. 37/- each for an amount of Rs. 2,77,760/- including GST respectively totaling an amount of Rs. 5,04,560/-. Both the orders were dispatched by the plaintiff through road transport namely S. K. Himachal Roadlines for which e-way bill no. 751032238526 dated 28.09.2018 and e- way bill no. 701035149738 dated 14.10.2018 respectively were generated. The said corrugated boxes were delivered to the defendant.
1.2 It is stated that in respect of said orders, defendant issued cheque bearing no. 115771 dated 11.03.2019 drawn on State Bank of India, Chopal Branch, District Shimla, Himachal Pradesh for an amount of Rs. 5,04,560/- . On presentation, the said cheque got dishonoured with endorsement "Non CTS Cheque not allowed in clearing" vide cheque return memo dated 13.03.2019. Plaintiff immediately contact the defendant over phone and informed about the said fact. Defendant admitted the said error and expressed his inability to pay the amount and sought time from the plaintiff. After considerable time of period, plaintiff again asked the defendant to pay the said amount, however, the defendant started making excuses and sought further time to make payment to the plaintiff. However, defendant did not make the payment. Thereafter, plaintiff got issued a demand/legal notice dated 09.02.2020 , which was duly served on the defendant but no payment was made by the defendant to the plaintiff. Hence, plaintiff preferred suit for recovery of principal amount Rs. 5,04,560/- towards supply of corrugated boxes along with interest @ 18% per annum amounting to Rs. 1,81,641/- as well as pendelite and future interest.
Baagwan India vs Kissan Seeds Pesticide Corner Page no. 2 of 19 2.1 The suit is contested by the defendant by filing written statement stating that the plaintiff and the defendant were having good family relationship and they were maintaining cordial relations, trust and understanding with each other. It is stated that the blank singed cheque was taken by the plaintiff somewhere prior to 2014 on the pretext that plaintiff wanted to start some business with somebody where the said cheque was required to be shown for business transaction. It is stated that the said cheque was to be returned as per the understanding reached between the parties in October 2017 in the office of one Sh. Uday Chauhan in shop no. 30, Subzi Mandi, Solan, Himachal Pradesh. It is stated that in 2014, the cheque book of the said cheque was recalled by the bank and thereafter, a new cheque book was issued to the defendant and since then the plaintiff is making payments form the new cheque book issued in the year 2014, so the question of issuing the cheque no. 115771 dated 11.03.2019 from the old cheque book does not arise. It is stated that no transaction from the said cheque book was issued by the defendant to anyone including the plaintiff.
2.2 It is stated that cheque in question was never issued by the defendant with regard to any business transaction or against the outstanding dues payable by defendant to the plaintiff. It is stated that the dispute between the parties was on the rate of corrugated apple box since inception of business , defendant was paying Rs. 32/- per box to the plaintiff, whereas the plaintiff started demanding Rs. 45/- per box only at the time of settlement of all accounts at Solan, Himachal Pradesh but eventually, the defendant cleared the entire outstanding dues @ Rs. 32/- per box, to which the plaintiff received all its dues form the defendant. It Baagwan India vs Kissan Seeds Pesticide Corner Page no. 3 of 19 is stated that the intention of the plaintiff became malafide as the plaintiff was to return the blank signed cheque in question to the defendant, to which he agreed at the time of settlement at Solan but thereafter, he started threatening the defendant. 2.3 It is averred that invoices presented by the plaintiff are itself forged and fabricated as the same are not supported with the G. R. as such invoices are generated after the G. R. is submitted by the driver after delivery of the goods/corrugated boxes, which makes the invoice genuine as goods delivered by such transport company. It is stated that plaintiff has not come before this Court with clean hands and concealed the material facts and that the plaintiff concealed the fact that the plaintiff insisted on the defendant to make all payments whatsoever between the parties through some known persons of the plaintiff, as plaintiff was having issues ITR issues, such as Udai Chauhan, Rakhi Jain and Ambey Trading Company's cashier Dinesh Bhardwaj , to whom the payment of Rs. 3,00,000/- was made in September 2017 and whereas the last payment of Rs. 2,00,017/- was made to Rakhi Jain on 30.01.2018. It is stated that the said payments were duly acknowledged by the plaintiff and there remain no debt against the defendant after the aforesaid payment. 2.4 On merits, it is pleaded that plaintiff has filed fabricated invoices without filing any GR of the transport company to show the delivery of goods. It is stated that the plaintiff has misused the blank signed cheque which was never given in the year 2019 as this cheque book out of which this cheque was taken, was returned back to the bank in the year 2014 and after 2014, the defendant had been issuing cheques from the new cheque. It is stated that the cheque was having upto Rs. 2 Baagwan India vs Kissan Seeds Pesticide Corner Page no. 4 of 19 lakhs, whereas the new cheque issued by the bank to the defendant in the year 2014 is having value upto Rs. 5 lakhs, so the question of issuing the cheques in the year 2019 does not arise.
2.5 It is further pleaded that as the defendant never issued the cheque in favour of the plaintiff against the alleged amount in the year 2019 being liability of outstanding dues, therefore, the question of its payment, seeking, any information or making any excuse does not arise. It is stated that no payment was left to be made by the defendant to the plaintiff and no such request for payment was ever made by the defendant. It is stated that no cause of action had ever arisen in favour of the plaintiff and against the defendant. It is stated that the suit has not been properly valued for the purpose of Court Fee and jurisdiction and this Court has no jurisdiction to try and adjudicate the present suit as the present suit is based on the alleged cheque for the transaction , which was settled at Solan in Himachal Pradesh and the cheque pertains to SBI, Chaupal Branch, District Shimla, Himchal Pradesh and delivery goods, of which GR has not been deliberately filed by the plaintiff , also related to Chaupal , Shimla.
3.1 Plaintiff filed replication and reiterated that defendant had got goods from the plaintiff, which is evident from the bills and e-way bills. Plaintiff denied that the cheque in question was taken by plaintiff prior to 2014 as alleged for showing transaction to start business and that any understanding was reached between the parties in October 2017 or that no question arises of issuing cheque in question from the old cheque book. Cheque in question was issued by the defendant and on Baagwan India vs Kissan Seeds Pesticide Corner Page no. 5 of 19 good faith the same was received by the plaintiff and defendant has hatched a false story just to make excuse from making payment to the plaintiff in terms of corrugated boxes supplied by the plaintiff to the defendant. It is stated that in case any such thing had happened as alleged by the defendant, the said cheque should have got cancelled by the defendant or should had instructed the bank to stop payment or the bank of the defendant should had stated that the cheque book of which the cheque in question had been part has been recalled by the bank. It is stated that the legal notice was issued by the plaintiff which was duly served upon the defendant was never replied by the defendant. 3.2 Plaintiff stated that no talks for settlement was ever arrived between the parties. Plaintiff stated that plaintiffs have no concern with such person in dealings of business as alleged by the defendant and have never directed the defendant to make payment to some other person.
3.3 Plaintiff stated that e-way bills of corrugated boxes are already on record and GST was paid by the plaintiff qua the boxes supplied which is evident from the documents on record. It is stated that the said GR would have been with the defendant to take delivery of the boxes. It is stated that dispute between the parties falls within the jurisdiction of this Court.
4. On 02.03.2022, the matter was referred for mediation to explore the possibility of settlement. Parties failed to arrive at the settlement as per the report received from the Mediation Center. From the pleadings of the parties, following issues arise for consideration :-
1. Whether plaintiff is entitled to the recovery of principal amount of Rs. 5,04,560/- towards supply of corrugated boxes vide orders dated 28.09.2019 and 14.10.2018 ? OPP Baagwan India vs Kissan Seeds Pesticide Corner Page no. 6 of 19
2. Whether plaintiff is entitled to interest as claimed @ 18% per annum w.e.f 11.03.2019 to 14.12.2020 amounting to Rs. 1,81,641 /- as well as pendenlite and future interest? OPP
3. Whether the defendant had settled all accounts in respect of supply of corrugated boxes in October 2017 and thereafter there has been no business dealing between the parties? OPD
4. Whether plaintiff has misused the blank signed cheque (bearing no. 115771 dated 11.03.2019 drawn on SBI, Chopal, Shimla, HP branch in the sum of Rs. 5,04,560/-) and the same was never given to the plaintiff in the year 2019? OPD
5. Costs and Relief.
5. This Court has heard the submissions advanced by Sh. Sheetesh Khanna Ld. Counsel for plaintiff and Sh. Satish Chauhan counsel for defendant and has perused the record.
6. To prove its case plaintiff examined Ms. Ranjana as PW-1 whereas defendant examined Sh. Balbir Mehta as DW-1. PW-1 Ms. Ranjana d/o late Sh. Dila Ram placed on record registration Certificate dated 10.12.2020 Ex. PW1/1; invoice no. GST/2018-19/107 dated 28.09.2018 Ex. PW1/2; invoice no. GST/2018-19/108 dated 14.10.2018 Ex. PW1/3; e way bill 751032238526 dated 28.09.2018 Ex. PW1/4; e way bill 701035149738 dated 14.10.2018 Ex. PW1/5; cheque no. 115771 dated 11.03.2019 drawn on State bank of India, Chopal Branch, District, Shimla, Himachal Pradesh Ex. PW1/6; return memo dated 13.03.2019 is Ex. PW1/7 and Legal notice dated 09.02.2020 alongwith original speed post receipt Ex. PW1/8.
7. DW-1 Sh. Balbir Mehta placed on record invoices dated 17.07.2017, 24.07.2017 and 17.08.2017 alongwith GRs, already exhibited as Ex. PW-1/D-1 to Ex. PW-1/D-6; statement Baagwan India vs Kissan Seeds Pesticide Corner Page no. 7 of 19 of account of defendant for the period 01.04.2017 to 31.03.2018 Ex. DW-1/1 ; Certificate u/s 65-B of Indian Evidence Act, signed by PW-1 Ex. DW-1/2; copies of fresh cheque book of State Bank of India showing the entires of four cheques issued therefrom Ex. DW-1/3.
8. Findings of this Court on the issues are as under:-
Issue No. 39. Whether the defendant had settled all accounts in respect of supply of corrugated boxes in October 2017 and thereafter there has been no business dealing between the parties? Onus to prove this issue was on the defendant. This issue having bearing on the entitlement of plaintiff is taken first of all. The case of the defendant as pleaded in the written statement in the preliminary submission no. 1 is that the business transaction mentioned in the plaint had been closed in the month of October 2017 when defendant and plaintiff had settled all their accounts in respect of the supply of corrugated boxes etc. in the office of Sh. Udai Chauhan, shop no. 30, Solan , H. P. and since then there has been no business dealing between the parties. Plaintiff has denied these facts.
10. Ld. counsel for defendant submitted that all the accounts in respect of supply of corrugated boxes were settled in October 2017 in the office of one Sh. Uday Chauhan, shop no. 30, Subzi Mandi, Solan, HP and the NON CTS blank signed cheque in question Ex. PW1/6 was given to the plaintiff sometime prior to 2014, which was valid for the value upto Rs. 2 lakhs only, was to be returned by the plaintiff, who had promised to return the same by saying that it was not available at that point of time. It is submitted that plaintiff had admitted the fact that Baagwan India vs Kissan Seeds Pesticide Corner Page no. 8 of 19 Uday Chauhan is known to the plaintiff, hence, there had been no business transaction with the plaintiff after the settlement arrived in October 2017.
11. Counsel for plaintiff submitted that the defendant has raised a false defense that all the accounts were settled between the plaintiff and defendant and has stated that defendant has make payment to some other persons on the request of plaintiff. It is submitted that defendant has made bald allegations that payment has been tendered by the defendant to said persons on account of request of plaintiff, who has never asked defendant to make payment of some third person as alleged which is also clear from the evidence and since the plaintiff has failed to prove the same on record therefore, it cannot be stated that the defendant has made any sort of payment. Defendant has not brought on record anything to substantiate that the accounts between the plaintiff and defendant were settled as alleged. It is submitted that neither any witness has been produced in witness box nor any document has been brought on record to prove that the account between the plaintiff and defendant was settled, which clearly shows that the defense raised by the defendant in the written statement is an afterthought.
12. In cross-examination, Ms. Ranjana PW-1 deposed that there had been no business in respect of boxes with the defendant prior to 2018 and only two bills Ex. PW1/2 and Ex. PW1/3 were issued. PW-1 deposed that the partnership firm was registered in December. He admitted that the dispute in question pertained to payment of corrugated boxes. PW-1 denied that the GR receipts of the transporters were not annexed alongwith the bill invoices Ex. PW1/2 and Ex. PW1/3.
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13. In his affidavit in evidence, Sh. Balbir Mehta (DW-
1) deposed that plaintiff always insisted to make payment between the parties through some unknown persons (i.e. Udai Chauhan, Ms. Rakhi Jain and M/s Ambey Trading Company's cashier Sh Dinesh Bhardwaj) as he was ITR issues. DW-1 in the cross-examination deposed that he could not show from record any document showing that plaintiff had instructed defendant to make payment to Sh. Udai Chauhan, Ms. Rakhi Jain and M/s Ambey Trading Company's cashier Sh Dinesh Bhardwaj. Even otherwise, the facts regarding the name of Sh. Udai Chauhan, Ms. Rakhi Jain and Sh. Dinesh Bhardwaj are not pleaded in the plaint. On appreciation of evidence on record, this Court finds that defendant has failed to establish that he had settled all accounts in respect of supply of corrugated boxes in October 2017 and thereafter, there has been no business dealing between the parties. Therefore, the issue no. 3 is decided in favour of plaintiff and against the defendant.Issue No. 4
14. Whether plaintiff has misused the blank signed cheque (bearing no. 115771 dated 11.03.2019 drawn on SBI, Chopal, Shimla, HP branch in the sum of Rs. 5,04,560/-) and the same was never given to the plaintiff in the year 2019? The onus to establish this issue was on the defendant. Case of the defendant is that cheque in question dated 11.03.2019 in the sum of Rs. 5,04,560/- Ex. PW1/6 drawn on State Bank of India, Chopal Branch, District Shimla, Himachal Pradesh, placed on record by the plaintiff, was issued to the plaintiff . The said blank signed cheque was prior to 2014 and it was non CDS cheque valid for Rs. 2,00,000/-. Admittedly, the said cheque got Baagwan India vs Kissan Seeds Pesticide Corner Page no. 10 of 19 dishonoured with endorsement "NON CTS Cheque not allowed in clearing" vide cheque return memo dated 13.03.2019. Original return memo is exhibit as Ex. PWl/7.
15. It is submitted that it is the admitted case of the defendant that the cheque in question i.e. Ex. PWl/6 was signed by the defendant. Ld. counsel for defendant submitted that plaintiff has misused the blank signed cheque bearing no. 115771 dated 11.03.2019 drawn on SBI , Chaupal, Shimla, HP for the sum of Rs. 5,04,560/- and the same was never given to the plaintiff in the year 2019. It is submitted that cheque Ex. PW1/6 was NON CTS Blank signed cheque was misused by the plaintiff by putting a date 11.03.2019 and filling up the amount of Rs. 5,04,560/- without knowing the fact that cheque was NON CTS cheque and value of the said cheque was valid for Rs. 2 lakhs only which was mentioned on the said cheque itself . It is submitted that NON CTS cheques were not in operation after 2014 as the new cheque books of CTS cheques were issued by the branches all over and the defendant was also issued the new cheque book of the same account in the year 2014. It is argued that Ex. DW1/3 is the new cheque book being used by the defendant after 2014 and the question of issuing the cheque Ex. PW1/6 on 11.03.2019 is false and without any merit.
16. Ld. Counsel for defendant submitted that the plaintiff version is falsified by the fact that the alleged cheque Ex. PW1/6 is issued on 11.03.2019 and the said cheque book was not in use/operation in the year 2019 and to disprove the plaintiff's story, defendant has placed on record Ex.DW-1/3, the new cheque book of CTS cheque of the same account and same name, issued by the same branch in the name of the defendant.
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17. On the other hand, Ld. Counsel for the plaintiff submitted that admittedly, defendant has not initiated any proceedings regarding the alleged misuse of the cheque, purported to have been given blank in 2014. It is submitted that defendant could have produced the person in whose presence, the alleged cheque was given in blank and in case, he had been purchasing corrugated boxes and dealing with the plaintiff prior to the tax invoices issued in question in October 2018 , defendant could have placed on record the invoices which he has failed.
18. In her deposition, Ms. Ranjana PW-1 denied the suggestion that the blank signed cheque in question Ex. PW1/6 was given to the plaintiff firm prior 2014. PW-1 deposed that the cheque in question was handed over to his partner Sh. Manish by Sh. Balbir Mehta @ Rimpu at Shimla sometime in December 2018 and the said cheque was deposited in the bank account of the firm sometime in March 2019. PW-1 deposed that she was not aware of the fact that the cheque Ex. PW1/6 was valid for Rs. 2,00,000/- or under. PW-1 denied the suggestion that blank signed cheque in question Ex. PW1/6 was given to the plaintiff firm prior 2014. Now, in his deposition, in response to a suggestion Sh. Balbir Mehta DW-1 has even denied that he had issued cheque dated 11.03.2019 Ex. PW1/6 whereas in the written statement, his case was that a blank signed cheque was taken by the plaintiff somewhere prior to 2014 on the pretext of starting some business by the plaintiff. DW-1 could not tell whether the said cheque was bounced . He denied that the said cheque was issued by him in lieu of payment to be made by him to the plaintiff. DW-1 denied that said cheque Ex. PW1/6 was filled by him. There is no material or evidence adduced by the Baagwan India vs Kissan Seeds Pesticide Corner Page no. 12 of 19 defendant to indicate that the cheque in question had actually been issued to the plaintiff in the year 2014 as asserted. On behalf of plaintiff, it is submitted that the cheque in question had been received by the plaintiff in good faith. On consideration of the evidence on record as a whole, this Court finds that defendant has failed to establish that plaintiff has misused the blank signed cheque bearing no. 115771 dated 11.03.2019 drawn on SBI, Chopal, Shimla, HP branch in the sum of Rs. 5,04,560/- and the same was never given to the plaintiff in the year 2019. Accordingly, this issue no. 4 is decided in favour of plaintiff and against defendant.
Issue no. 1
19. Issue no. 1 is whether plaintiff is entitled to the recovery of principal amount of Rs. 5,04,560/- towards supply of corrugated boxes vide orders dated 28.09.2019 and 14.10.2018. Onus to prove this issue was upon the plaintiff. Ld. Counsel for defendant submitted that plaintiff has failed to prove its case. It is submitted that the bills/invoices generated by the plaintiff Ex.PW1/2 to Ex. PW1/5 are false and fabricated with a view to support the fact of non-filing of the GRs of the transporter which authenticate the bills and delivery of goods at its destination.
20. Ld. Counsel for plaintiff submitted that it has come in evidence of the defendant as DW-1 that he had been purchasing the corrugated boxes from the plaintiff, however, defense has been raised that the invoices in question do not pertain to the defendant and no such goods have been purchased by the defendant. It is submitted that on specific questions put to the defendant regarding transaction with plaintiff , DW-1 has admitted that he has been purchasing corrugated boxes from Baagwan India vs Kissan Seeds Pesticide Corner Page no. 13 of 19 plaintiff. On being questioned that could he show which invoice belonged to the defendant regarding his purchase he deposed that the invoices filed by the defendant with his written statement belonged to his brother and cousin and this shows that defendant has admitted of purchasing corrugated boxes from the plaintiff, however, has deliberately not produced the said invoices through which he had been purchasing corrugated boxes from plaintiff and therefore, adverse inference has to be drawn against the defendant. It is submitted that this also falsified the defense that he has not purchased corrugated boxes through invoices in question i.e. Ex PW1/2 and Ex PW1/3. It is also pertinent to state here that nothing has been brought on record by the defendant to show that he has tendered any payment to the plaintiff with regard to any order placed by defendant with the plaintiff for supply of corrugated boxes.
21. Ld. Counsel for plaintiff submitted that plaintiff has filed eway bills being Ex. PW1/4 and Ex. PW 1/5 which clearly reflects that the corrugated boxes were sent by the plaintiff to the defendant and the said eway bills clearly mentions the recipient address, vehicle number from which the goods were sent, transporter name and date. It is submitted that after coming into force of Goods and Services Tax e-way bill is required where the value of goods of a consignment is more than Rs.50,000/- and the said document is generated online by the portal direct under control of Government of India on which GST is also paid at the relevant time i.e. issuance of eway bill. It is submitted that since all the formalities have to be undertaken for the said purpose, the version of the defendant cannot be believed that no goods have been received by the defendant.
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22. It is noteworthy that PW-l during his cross examination has admitted that the notice dated 09.02.2020 i.e. Ex. PW l/8 was received by him. Ld. Counsel for plaintiff submits that since no reply has been sent by the defendant this clearly shows that the contents of said legal notice have went unrebutted and the defendant has failed to show any thing on record and has not succeeded to bring any out any fact from the cross examination of PW-1 contrary to the case of the plaintiff and has failed to substantiate his case and therefore, in view of the same, this issue is liable to be decided in favour of the plaintiff.
23. Now, the relevant portion of the evidence adduced by the witness may be extracted. Ms. Ranjana PW-1 deposed that the plaintiff is registered partnership concern and is manufacturer of corrugated boxes and the defendant placed two orders vide two bills bearing no. GST/2018-19/107 dated 28.09.2018 for 4500 corrugated apple boxes @ Rs. 45 each for an amount of Rs. 2,26,800/- including GST, computer generated copy of invoice is exhibited as Ex. PWl/2 and other being GST/2018-19/108 dated 14.10.2018 for 2000 corrugated boxes@ Rs. 50 each and 4000 gift packs @ Rs. 37 each for an amount of Rs. 2,77,760/- including GST computer generated copy of invoice is exhibited as Ex. PWl/3 respectively totaling an amount of Rs. 5,04,560/-. PW-1 testified that the said orders were dispatched by the plaintiff through S.K. Himachal Roadlines for which e-way bill no. 751032238526 dated 28.09.2018 Ex. PWl/4 and 701035149738 dated 14.10.2018 Ex. PW1/5 were generated and corrugated boxes were delivered to the defendant to its satisfaction. PW-1 deposed that plaintiff served a demand/legal Baagwan India vs Kissan Seeds Pesticide Corner Page no. 15 of 19 notice dated 09.02.2020 calling upon the defendant to pay an amount of Rs. 5,04,560/- within 15 days of receipt of the said notice which was duly served on the defendant through speed post. Office copy of legal notice dated 09.02.2020 with original speed post receipt Ex. PW l/8.
24. Ms. Ranjana PW-1 deposed that there had been no business in respect of corrugated boxes with the defendant prior to 2018. Although, PW-1 has admitted that the dispute in question pertained in respect of payment of corrugated boxes and that GR receipts of transporters were not annexed alongwith box invoices Ex. PW1/2 & 3 but e-way bills of corrugated boxes are already on record and GST was paid by the plaintiff qua the boxes supplied, which is evident from the documents. Sh. Balbir Mehta DW-1 denied that defendant had purchased boxes as per tax invoice dated 28.09.2018 (Ex. PW1/2). PW-1 denied that the defendant had also purchased boxes as per tax invoice dated 14.10.2018 Ex. PW1/3.
25. Having regard to the aforenoted findings on the issue no. 3 and 4, the fact that defendant has failed to establish that plaintiff had misused the cheque or there had been any settlement between the parties and the aforenoted evidence on record, this Court is satisfied that plaintiff has succeeded in establishing the claimed amount. Admittedly, defendant has not taken any action regarding misuse of the cheque. Admittedly, no reply has been sent by the defendant to the legal notice dated 09.02.2020 and therefore, silence to the legal notice is one of the additional factors which has to be kept in mind by the Court, while considering totality of the other facts and circumstances brought on record. The normal rules which governs civil Baagwan India vs Kissan Seeds Pesticide Corner Page no. 16 of 19 proceedings is that a fact is established if it is proved by pre- ponderance of probabilities and a fact is said to be proved when after considering the matter before it, the Court either beliefs it to exists or considers its existences probable by applying the test of prudent man.
26. This argument that plaintiff has not filed GR bills is of no consequence having regard to the invoices and also airway bills and aforenoted documentary and testimonial evidence on record which defendant has failed to rebut. This Court finds that there is nothing in the cross-examination of PW-1 to impeach his veracity in material particulars. This Court finds that plaintiff has proved its entitlement to the recovery of principal amount of Rs. 5,04,560/- towards supply of corrugated boxes vide orders dated 28.09.2019 and 14.10.2018. Accordingly, this issue no.1 is decided in favour of plaintiff and against the defendant. Issue no. 2
27. Whether plaintiff is entitled to interest as claimed @18% per annum w.e.f. 11.03.2019 to 14.12.2020 amount to Rs. 1,81,641/- as well as pendent-lite future interest? Onus to prove this issue was upon the plaintiff.
28. Plaintiff has not pleaded or proved any agreed rate of interest payable by the defendant to the plaintiff. Plaintiff has not asked for interest even in the legal notice dated 09.02.2020. Where interest is sought in suit, the plaint shall contain a statement to that effect alongwith the details set out under Order VII sub-rules (2) and (3). As per Order VII sub-rule (2), plaintiff shall state whether the he is seeking interest in relation to a commercial transaction within the meaning of Section 34 of the Code of Civil Procedure and furthermore, if the plaintiff is doing Baagwan India vs Kissan Seeds Pesticide Corner Page no. 17 of 19 so under the terms of a contract or under an Act, in which the Act is to be specified in the plaint ; or on some other basis and shall state the basis of that.
29. As per Section 34 CPC, wherein and in so far as a decree is for payment of money, the court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of suit to the date of decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit with further interest at such rate not exceeding 6% pa at Court deems reasonable on such principal sum from the date of decree to the date of payment or to such earlier date as the Court deems thinks. As per proviso to sec 34 CPC, where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions. Explanation I. -In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970. Explanation II.- For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
30. Having regard to the lending rate of the bank in the commercial transaction, this Court is of the view that interest @9% is reasonable and would serve the ends of restitutive justice. Plaintiff is entitled to the said interest from the date of Baagwan India vs Kissan Seeds Pesticide Corner Page no. 18 of 19 filing of present suit till the realization of the entire amount. Therefore, this issue no. 2 is decided in favour of plaintiff and against the defendant.
Issue No. 531. This issue is regarding grant of costs and the relief. In view of finding of the aforesaid issues, this Court finds that in the interest of restitutive justice, plaintiff is be entitled to costs. The present suit was filed on 09.12.2021. Number of hearings have taken place in this case. In the circumstances, pleader's fee and litigation expenses are assessed as Rs. 12,100/- and Court fee deposited by the plaintiff is Rs.9200/-. Plaintiff is held entitled to costs of Rs. 21,300/- (inclusive of Court fees).
32. In the result, a decree is hereby passed in favour of plaintiff and against defendant in the sum of Rs. 5,04,560/- alongwith interest @ 9% per annum from the date of filing of present suit till its realization of the entire amount and costs of Rs.21,300/-. Decree sheet be drawn up accordingly. Suit stands disposed of. File be consigned to record room.
(dictated and announced
in the open Court
on 19th January 2023) (VINAY KUMAR KHANNA)
District Judge
(Commercial Court-02)
South District, Saket, New Delhi
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