Delhi District Court
M/S Jagdamba Synthetics Pvt. Ltd vs Mr. Cms Yadav on 28 July, 2012
1
IN THE COURT OF SH. S.K. SARVARIA, DISTRICT JUDGE/
INCHARGE (NW)/ ADDITIONAL SESSIONS JUDGE,
ROHINI DISTRICT COURTS, DELHI
C.S No. 283/2010/2009
In the matter of :
M/s Jagdamba Synthetics Pvt. Ltd.
First Floor, Rain Basera Building,
Ganga Path Road, G.P.O. Box 258
Kathmandu (Nepal)
Through its Authorized Representative
Sh. Narayan Prasad Purohit
B-3, Flat No. 97-98
First Floor, Sector-11, Rohini,
Delhi - 110085. .... Plaintiff
VERSUS
Mr. CMS Yadav
Trading as M/s Krishna Polypack
RZ-F-766/10, Raj Nagar-II
Palam, Dwarka, Sector-8
New Delhi - 110045. .... Defendant
Date of Institution : 02.01.2009
Date when arguments were heard : 21.07.2012
Date of judgment : 28.07.2012
Suit for Recovery of Rs.4,92,400/-
J U D G M E N T :-
1. This suit for recovery of Rs.4,92,400/- is filed by the plaintiff against the defendant.
PLAINTIFF'S CASE :
2. The case of the plaintiff in brief is that plaintiff is a company incorporated under the provisions of Companies Act of Nepal having its registered and head office at Nepal and also having a branch/marketing office at Rohini, Delhi. The plaintiff company vide its resolution passed by the M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 2 Board of Directors dated 14.05.2008 has authorized Sh. Narayan Prasad Purohit to constitute and institute the present suit against the defendant.
3. It is the case of the plaintiff company that it is a reputed manufacturer and supplier of various kinds of PP woven bags/fabrics and other related materials. The defendant Mr. CMS Yadav has been carrying on his business from the address mentioned above and trading as M/s Krishna Polypack. The defendant approached the plaintiff company for supply of PP Woven fabrics and placed order with the plaintiff company at its said branch/ marketing office at Delhi for supply of aforesaid goods/materials on credit basis. The plaintiff as per orders, requirements and specifications of the defendant and on the rate settled between the parties, supplied the goods to the defendant from time to time to the utmost satisfaction of the defendant on credit basis and defendant duly acknowledged the receipt of the same.
4. It is further the case of the plaintiff company that it is maintaining a running and current account of defendant in its normal course of business and as per the accounts books of the plaintiff company, a balance amount of Rs.3,46,807/- is due against the defendant as on 18.08.2006 which is in the personal knowledge of the defendant.
5. It is the grievance of the plaintiff company that defendant inspite of various demands, requests and reminders by the plaintiff company has failed to make the payment of the said outstanding amount to the plaintiff. The defendant instead of making the payment of the outstanding amount due against him, has started behaving in the manner that amounts of professional misconduct and unfair business dealing and has been avoiding to make the payment on one pretext or the other. On 22.02.2008 the plaintiff company issued a demand notice through its counsel by registered AD and UPC on the defendant calling upon him to make the payment of outstanding amount due against him but despite of receipt of notice, the defendant failed to make M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 3 the payment of the same.
6. It is further the case of the plaintiff company that defendant has failed to make the payment of Rs.3,46,807/- being the outstanding amount of dues within time as such the plaintiff, as per the terms and conditions settled between the parties, is entitled to recover interest from the defendant @ 18% per annum on the said amount from the date of bill till its realization. According to the plaintiff company, the defendant is liable to pay a sum of Rs.4,92,400/- from the defendant, as per the details given below :-
Outstanding Principal Amount : Rs.3,46,807/-
Interest @ 18% p.a from August, 2006 : Rs.1,45,593/-
till 05.12.2008 -------------------
Total : Rs.4,92,400/-
-------------------
7. Hence the present suit is filed by the plaintiff against the defendant praying for a decree for a sum of Rs.4,92,400/- in favour of the plaintiff and against the defendant alongwith pendentelite and future interest @ 18% per annum from the date of filing of the suit till its realization alongwith costs of the suit.
DEFENDANT'S CASE
8. Defendant has contested the suit and filed written statement taking preliminary objections that suit of the plaintiff merits rejection as the same is filed with the only ulterior motive to harass the defendant and extract the money. It is submitted by the defendant that no such amount as alleged in the plaint is due against the defendant, rather, it is the defendant who has to recover Rs.10,63,239/- from the plaintiff. It is submitted that plaintiff has to pay Rs.11,80,364/- to the defendant who is also a partner in Krishna International. It is submitted that defendant is filing counter claim for a sum of Rs.10,63,239/- and also a suit for recovery of Rs.11,80,364/- against the M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 4 plaintiff. The defendant has further stated that suit of the plaintiff is hit by the provisions of law of limitation. It is submitted that suit of the plaintiff is bad in law and not maintainable being incompetent and also barred from being adjudicated by this court as the matter is based on fabricated documents which in fact, were not acted upon. It is submitted that in debit notes, which were never supplied earlier, show some amounts such as premium in quantity, clearing, forwarding, CVD, insurance, freight and other expenses but no such amount was agreed to be paid. It is submitted that the amount of clearing, forwarding, freight and CVD were paid separately by the defendant. The defendant has further stated that no agreement was made at the time of purchase of goods for payment of premium in quantity and insurance, so, premium in quantity and insurance are to be deducted from debit notes.
9. On merits, the defendant has denied the averments made in the plaint. Rather, it is contended on behalf of defendant that a number of orders were taken by the plaintiff company alongwith advance payments but the plaintiff company supplied the material only against some payments and has not supplied the material against all the orders and payments. It is further submitted that CVD, freight charges, clearing and forwarding charges were paid by the defendant separately and the plaintiff has to return the excess amount of the defendant. It is further submitted that plaintiff has suppressed the true facts from this court as he has received excess amount of Rs.10,63,239/- from the defendant and Rs.11,80,364/- from Krishna International due to which defendant is preferring counter claim and a suit for recovery also to recover the same with interest @ 18% per annum from the plaintiff.
COUNTER CLAIM OF DEFENDANT :-
10. Alongwith the written statement, the defendant has also filed counter claim submitting that he had the business dealings with the plaintiff and the plaintiff undertook to supply the goods and the defendant made M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 5 payments in advance for supply of the goods to the plaintiff. The defendant paid a sum of Rs.57,43,813/- to the plaintiff, however the plaintiff did not supply goods against remaining payment. It is further submitted that plaintiff has received excess payment of Rs.10,63,239/- from the defendant and has not delivered the goods in lieu thereof and the defendant is preferring counter claim for recovery of the said amount alongwith pendentelite and future interest @ 18% per annum from the date of filing of the counter claim.
REPLICATION / W.S. TO THE COUNTER CLAIM OF DEFENDANT
11. In its replication/ WS to the counter claim of defendant, the plaintiff has denied all the averments made by the defendant/counter claimant in his written statement cum counter claim and has reiterated its case as contained in the plaint. The plaintiff has categorically denied that suit is barred by law of limitation. It is submitted that defendant vide settlement of account letter dated 08.07.2006 with plaintiff's attorney has admitted that the plaintiff supplied goods for Rs.60,90,616/- and has admitted the dues of the plaintiff. It is categorically denied by the plaintiff that defendant has to recover Rs.10,63,239/- from the plaintiff. It is submitted that counter claim of the defendant is based on falsehood and the same is clearly an afterthought and is liable to be dismissed. It is further contended on behalf of plaintiff that counter claim of the defendant is without a legal and valid cause of action against the plaintiff and the same is liable to be rejected under Order 7 Rule 11 CPC as vide settlement of account letter dated 08.07.2006, the counter claimant has admitted the dues of the plaintiff. It is stated that counter claim has miserable failed to disclose as to when and against which order the counter claimant made excess payment to the plaintiff. The claim of the claimant/defendant, if any, is beyond the period of limitation as categorically admitted by the defendant's application dated 24.03.2009 and is barred by the law of Limitation. The plaintiff/non-claimant has prayed that the suit of the plaintiff may be decreed with cost and the counter claim of the defendant may be dismissed with exemplary costs.
M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 6 REPLICATION TO THE W.S. TO THE COUNTER CLAIM
12. In its replication to the WS to the counter claim, the defendant/claimant has denied all the averments made by the plaintiff in his written statement to the counter claim and has reiterated his case as contained in the written statement/counter claim.
ISSUES :
13. After completion of the pleadings, the following issues were framed vide order dated 02.07.2010 :-
1. Whether the plaintiff is entitled to decree for a sum of Rs.4,92,400/-? OPP.
2. Whether the plaintiff is entitled to interest @ 18% p.a. from the filing of the suit till realization? OPP.
3. Whether the defendant therein is entitled to a counter claim/decree for a sum of Rs.10,62,239/- against the plaintiff herein? OPD
4. Whether the defendant is entitled to interest @ 18% p.a. from the date of filing of the counter claim till realization ? OPD.
5. Whether any cause of action arises in favour of the defendant to file the counter claim ? OPD
6. Whether the suit is filed within the period of limitation? OPD
7. Whether the counter claim is within Limitation? OPP
8. Relief, if any.
EVIDENCE :
14. For expeditious disposal of the case, the cross examination of witnesses of the parties were got recorded through Ld. Local Commissioner by invoking Order 18 Rule 4 CPC.
15. In support of its case, the plaintiff company has examined only one witness.
M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 7 PW- 1 is Sh. Narayan Prasad Purohit, authorized representative of the plaintiff company. He filed his affidavit in evidence as Ex. PW-1/A. He tendered the copy of certificate of Incorporation of plaintiff company as Ex. PW-1/1, certified copy of resolution dated 14.05.2008 authorizing him to file and institute the present suit as Ex. PW-1/2, copies of invoices and debit notes are Ex. PW-1/3 to PW-1/18, copy of statement of account as Ex. PW-1/19, copy of letter dated 08.07.2006 as Ex. PW-1/20, copy of the Notice dated 22.02.2008, its postal receipts, UPCs and AD cards are Ex. PW-1/21 to PW-1/25, copy of Notice dated 29.09.2010 as Ex. PW-1/26 and postal receipts Ex. PW-1/27 and Ex. PW-1/28. After cross examination, the plaintiff company closed its evidence.
16. On the other hand, defendant has also examined only one witness.
DW-1 is Sh. CMS Yadav, the defendant himself. He filed his affidavit in evidence as Ex. DW-1/X. He deposed on the lines of stand taken by him in his written statement and counter claim. After being cross examined, the defendant also closed his evidence.
ARGUMENTS AND FINDINGS :
17. I have heard Ld. Counsel for both the parties at length and have gone through the written arguments filed by them, record of the case and relevant provisions of law. My findings on the issues framed are as under :-
Issue nos. 3, 4, 5 and 7
18. The onus to prove these issues was on the defendant as these issues are related to the counter claim of the defendant. Post framing of issues vide order dated 07.08.2010, the application filed by the plaintiff under Order VII Rule 11 CPC was allowed and counter claim of the defendant was rejected being not maintainable. Hence, these issues have become redundant so are struck off.
M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 8 Issue No.1 and 2
19. These are connected issues, so are being decided together.
The transactions between the parties with regard to sale of goods and its supply/export from Nepal to India by plaintiff to defendant are not disputed. The plaintiff has claimed that it had supplied PP Woven fabrics to the defendant at the branch/marketing office at Delhi on credit basis and is running the current account of defendant in the normal course of business. The defendant used to make payment to the plaintiff from time to time and a sum of Rs.3,46,807/- is due against defendant to the plaintiff as on 18.08.2006 but the defendant has failed to pay despite demand notice dated 22.02.2008 Ex. PW-1/21. During the course of arguments, it is not disputed that the real dispute between the parties is with regard to counter veiling duty (CVD), freight charges, premium in quantity, custom duty and insurance which according to the plaintiff were not included in the invoices issued by the plaintiff and debit notes were issued against these charges, but according to defendant the freight charges, custom duty etc. are already paid by the defendant and nothing is due from the defendant to the plaintiff, rather defendant has made excess payments to plaintiff far above the invoice amounts.
20. In order to prove its case, the plaintiff company has proved the invoices raised upon the defendant and debit notes Ex. PW-1/3 to Ex. PW-1/18. The witness of plaintiff PW-1 Sh. Narayan Prasad Purohit has also proved the relevant statement of account of defendant maintained by the plaintiff in its books of accounts regularly as Ex. PW-1/19.
21. As regards, the invoices issued by the plaintiff from time to time, the payments were made by the defendant to the plaintiff from time to time and this fact is not disputes. What is in dispute is that debit notes issued by the plaintiff Ex. PW-1/4 to Ex. PW-1/18 pertaining to clearing, forwarding, insurance, custom, CVD, freight and other such expenses. The statement of M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 9 account Ex. PW-1/19 proved by the plaintiff shows that as on 18.08.2006 there was balance of Rs.3,46,807/- due from the defendant to the plaintiff. This statement of account, as per Sec. 34 of the Indian Evidence Act, maintained in the regular course of business by a party is considered a weak evidence and requires substantial corroboration from the other convincing evidence for the simple reason that statement of account is prepared by unilateral action of the party concerned. Therefore, it was the duty of the plaintiff to prove the evidence with regard to freight charges, insurance, custom duty, clearing, forwarding, CVD etc. But the evidence of the defendant lacks in proving the same. The original debit notes are proved on record from Ex. PW-1/4 to Ex. PW-1/18. The convincing argument on behalf of defendant is that plaintiff is not supposed to possess the original debit notes and the same should have been sent to the defendant, if any amount was claimed from the defendant for the same, which is not done. The debit notes and the statement of account are the self serving documents of the plaintiff, so are not sufficient to prove liability of defendant.
22. The plaintiff nowhere has specified in the pleadings and evidence as to how much amount is claimed by the plaintiff towards freight charges, what amount is claimed against insurance, counter veiling duty (CVD), custom duty, clearing and forwarding charges etc. The plaintiff has also claimed the payment from defendant on account of premium in quantity. The forceful contention on behalf of the defendant is that the quantity which was given in the invoices is the quantity on which CVD has been paid. The plaintiff has failed to explain as to why the quantity allegedly called premium was not included in the invoices and what was the interest in doing so. The plaintiff has failed to prove the agreement by which the defendant has agreed to pay anything on account of premium. These arguments on behalf of defendant are convincing. Further, the invoice Ex. PW-1/3 and the copies of other invoices relied upon by the plaintiff show that at the bottom of the same, it is clearly mentioned "rate includes insurance upto destination".
M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 10 Therefore, the plaintiff is not supposed to claim any amount from the defendant on account of insurance premium paid by it as the rates shown in invoices includes the insurance premium also, for the goods in question. No evidence is produced from any transporter, custom department regarding payment of freight charges and custom duty respectively and by whom and by what mode.
23. When the basis of the claim of the plaintiff is insurance charges, freight charges, CVD, custom duty, clearing and forwarding charges, the plaintiff was duty bound to plead the specific amount claimed against these different heads and was duty bound to prove the same by leading relevant evidence from the persons/departments to whom the charges are paid by the plaintiff but this is not done in this case. In the absence of this evidence coming on record, mere entry in the books of account or self serving debit notes/ invoices would not serve the purpose of the plaintiff not withstanding the fact that transaction between the parties and supply of goods worth Rs.44,02,509.40/- is not in dispute.
24. When the plaintiff himself has failed to lead any convincing evidence in support of its case with regard to insurance charges, freight charges, CVD, custom duty, clearing and forwarding charges, the non production of accounts by the defendant or documentary evidence would not be sufficient for the plaintiff to succeed. The primary duty to prove its case rests upon the plaintiff. One of the principles of burden of proof is that when both the parties have failed to prove their case which is a situation similar to the effect of non production of evidence by parties, then the burden of proof would lay on the party who would fail in such circumstances as per Sec. 102 of the Indian Evidence Act. Therefore, the plaintiff having failed to discharge its burden to prove its case by convincing evidence, it is not entitled to principal amount of Rs.3,46,807/-. In the absence of plaintiff found entitled to claim the principal amount, the plaintiff is not entitled to claim any interest on M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 11 this principal amount.
In view of the above, both the issue nos. 1 and 2 are decided in favour of the defendant and against the plaintiff.
Issue No. 625. The last entry in the statement of account Ex. PW-1/19 is dated 18.08.2006, in the sum of Rs. 1,00,000/-. The suit is filed on 02.01.2009. The same is, therefore, filed the prescribed period of limitation i.e. within three years. The question of limitation is also not seriously contested during the arguments between the parties, therefore, the issue is decided in favour of the plaintiff and against the defendant.
Relief.
26. In the light of my findings on the above issues, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared. The judgment be sent to the server (www.delhidistrictcourts.nic.in). File be consigned to record room.
Announced in the open court on this 28th day of July, 2012 (S. K. SARVARIA) DISTRICT JUDGE & INCHARGE(NW) ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav 12 CS No. 283/2010 Jagdamba Synthetics Vs. C.M.S. Yadav 28.07.2012 Present: Proxy counsel for counsel for parties Vide separate judgment of even date, the suit of the plaintiffs is dismissed with costs. File be consigned to record room.
(S. K. SARVARIA) DISTRICT JUDGE & INCHARGE(NW) ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI M/s Jagdamba Synthetics Pvt. Ltd. VS CMS Yadav