Delhi District Court
Shakuntala Rai vs M/S Indus Cables Industeis - India on 19 February, 2024
IN THE COURT OF SH. RAMESH KUMAR,
ADDITIONAL DISTRICT JUDGE-01, SHAHDARA
DISTRICT, KARKARDOOMA COURTS
DELHI
Civil Suit No. 293/17
In the matter of:
Smt. Shakuntala Rai,
Proprietor of M/s. Kedar Chemical Industries
Through her Special Power of Attorney
Sh. Vijay Jindal
458-466, Gali No.8, Friends Colony Indl. Area,
Shahdara, Delhi.
.......Plaintiff
Versus
1. M/s. Indus Cables Industries (India)
Through its Partner Sh. Rohtas Sharma
J-133, Site "C", Surajpur Industrial Area
G.B. Nagar, Greater Noida, U.P.
2. Sh. Rohtash Sharma
Partner of M/s. Indus Cables Industries (India)
R/o D-3, Main Road, Ganga Vihar,
PO Gokal Puri, Delhi-110094.
3. Smt. Suman Sharma
W/o Sh. Rohtash Sharma
Partner of M/s. Indus Cables Industries (India)
R/o D-3, Main Road, Ganga Vihar,
PO Gokal Puri, Delhi-110094.
4. Sh. Homender Sharma
Partner of M/s. Indus Cables Industries (India)
S/o Sh. B.R. Sharma,
R/o 207, Village Palla, Tehsil Dadri,
District Gautam Budh Nagar,
Noida, U.P.
CS No. 293/17 Page 1 of 8
5. Sh. Om Pal
Partner of M/s. Indus Cables Industries (India)
S/o Sh. B.R. Sharma,
R/o 207, Village Palla, Tehsil Dadri,
District Gautam Budh Nagar,
Noida, U.P.
.......Defendants
Date of Institution : 31.03.2017
Date of Judgment : 19.02.2024
Decision : Decreed
SUIT UNDER ORDER XXXVII FOR RECOVERY OF
RS.27,82,455/-
JUDGMENT
1 Vide this judgment, I shall dispose of summary suit filed by plaintiff against defendant for money recovery. However, on 24.04.2014, the present suit was treated as 'general suit for recovery' in place of 'suit under Order XXXVII CPC, vide separate statement of ld. Counsel for plaintiff. 2 Brief facts as set out in plaint are that the plaintiff is manufacturing and supply of the fiber and hardware products under the name & style of M/s Kedar Chemical Industries and same is proprietorship firm and the sales were affected as per the directions of the defendant from Shahdara and the plaintiff maintains the separate ledger account for manufacturing and trading. It is further averred that the defendant no.1 is partnership concern and defendant no.2 to 5 are partners of defendant no.1 and defendant no.2 to 5 are the responsible for the day to day work and decisions for defendant no.1, hence liable for the liabilities of defendant no.1. It is further averred that the CS No. 293/17 Page 2 of 8 defendants were a regular purchaser of PVC compound from the plaintiff and defendant no.1 through defendant no.2 to 5 had purchased PVC product from the plaintiff in the financial years 2013-2013, 2013-2014 and 2014-2015 and time to time invoices were raised and payments were made by the defendants. The said sales were affected through Form-38 so issued by VAT Department and benefit of the same stand availed by the defendants. It is further averred that the closing balance as depicted in the open and running account of defendant no.1 in the book of account as maintained by plaintiff shows Rs.1806790/- which is outstanding against the defendants as the payment towards the purchase so made in part by the defendant no.1 through defendant no.2 to 5 in the financial years 2013-2013, 2013-2014 and 2014-2015. It is further averred that the plaintiff was induced by the defendants to believe on their false assurances that they would honour the outstanding payment but the plaintiff realized later that the intention of the defendants was not clear and remained unclear, became decisive, the defendants after receiving the goods, converted the same in their own use and still the defendants have not paid the money to the plaintiff as assured by them. It is further averred that as per the terms and conditions settled between the defendants and plaintiff which is also mentioned in the invoice of the plaintiff, the plaintiff is entitled for an interest @ 24% per annum which is prevailing rate in the market usage and is the banking rate of interest on outstanding and as per the terms admitted by the defendants through sale invoices. It is further averred that the plaintiff requested the defendants several times to make the payment of outstanding balance of Rs.1806790/- which is due against them CS No. 293/17 Page 3 of 8 but the defendants were evading and neglecting the payment of the plaintiff with one false pretext or the other and as such the plaintiff has been compelled to take efficacious remedy by serving them with a legal notice dated 30.07.2016 upon the defendants calling them to make the payment of Rs.2493370/- alongwith interest @ 24% per annum from 01.01.2015 to 31.07.2016, which was duly received by the defendants but of no avail. Hence, the present suit.
3 Summons of the suit were issued to the defendants. The defendant no.2 and 3 were served with the summons but they did not appear despite service. However, defendant no.1, 4 and 5 could not be served by ordinary process. However, on 28.01.2019, ld. counsel for plaintiff filed an application under Order V Rule 20 CPC. The said application was allowed on 28.01.2019 itself and the defendants no.1, 4 and 5 were ordered to be served by way of publication in any newspaper. The defendant no.2 and 3 did not file their written statement despite service and as such defendant no.2 and 3 were proceeded exparte vide order dated 11.01.2021. The defendant no.1, 4 and 5 were served by way of publication in newspaper "Rashtriya Sahara"
dated 18.07.2019. However, despite service, the defendant no.1, 4 and 5 have neither filed written statement nor appeared despite grant of opportunity. Accordingly, defendant no.1, 4 and 5 were also proceeded exparte vide order dated 11.01.2021 and the case was fixed for exparte plaintiff evidence.
4 In support of her case the plaintiff examined her SPA Holder Sh. Vijay Jindal as PW1 in her ex-parte evidence, who tendered his affidavit as Ex.PW1/A and has relied upon certain documents i.e. SPA as Ex.PW1/1; true copies of invoices as CS No. 293/17 Page 4 of 8 Ex.PW1/2 to Ex.PW1/15; ledger account as Ex.PW1/16; certificates u/s 65 B of Indian Evidence Act as Ex.PW1/17; true copy of legal notice dated 30.07.2016 alongwith postal and proof of delivery and returned envelop as Ex.PW1/18, Ex.PW1/19 and Ex.PW1/20 to Ex.PW1/25.
5 No other witness was examined on behalf of plaintiff, hence plaintiff evidence was closed on 27.09.2021 and matter was fixed for final arguments.
6 However, in the meantime ld. Counsel for plaintiff filed an application for leading additional evidence which was allowed vide order dated 06.06.2022. Thereafter matter was again posted for plaintiff evidence.
7 In additional evidence the plaintiff examined concerned Inspector of VAT Department i.e. Sh. Amit Khatri, Jr. Assistant from the Department of Trade and Tax as PW2. He has proved summoned record i.e. certified copy of dealer profile of Kedar Chemical Industries having TIN No.07100156684, PAN No. ACUPR3854R as Ex.PW2/A; certified copy of DVAT 16 bearing no.1013056 for the quarter 01.04.2013 to 01.06.2013 as Ex.PW2/B; certified copy of Form DVAT 16 bearing no.20111954 for quarter 01.04.2013 to 30.06.2013 as Ex.PW2/C; certified copy of Form DVAT 16 bearing no.2006629 for quarter 01.07.2013 to 30.09.2013 as Ex.PW2/D; certified copy of Form DVAT 16 bearing no.2014365 for quarter 01.01.2014 to 01.03.2014 as Ex.PW2/F; certified copy of VAT return for the period w.e.f. 01.04.2014 to 30.06.2014, from 01.07.2014 to 30.09.2014, from 01.10.2014 to 31.12.2014 and from 01.01.2015 to 31.05.2015 alongwith certified copy of dealer profile, which CS No. 293/17 Page 5 of 8 are Ex.PW2/1 to Ex.PW2/5.
8 No other witness was examined on behalf of plaintiff, hence plaintiff evidence was closed on 06.11.2023 and matter was fixed for exparte final arguments.
9 During the course of arguments Ld. counsel for plaintiff has just reiterated the averments of the plaint. Ld. counsel for plaintiff also filed written submissions.
10 Before proceeding, it is worthwhile to mention that this court does have jurisdiction to try the present suit and also the same has been filed well within limitation. Further, suits such as the present one, are decided on the basis of preponderance of probability.
11 The point that arises for determination before this court is "whether the plaintiff is entitled for recovery of the suit amount from the defendant?"
12 To answer the above point for determination, the evidence as well as record is perused.
13 In order to prove the delivery of the goods the plaintiff also examined PW2 from VAT Department who proved the records of VAT returns with respect to the TIN No. 07100156684 under registration no.3854RXM001 which belongs to the firms of the plaintiff. PW2 also proved the VAT returns from the period April 2014 till 31.03.2015. PW1 has also proved the entire records of VAT corresponding to the invoices which are Ex.PW1/1 to Ex.PW1/15.
14 In order to prove that outstanding payment has not been cleared by the defendants, the plaintiff has placed on record CS No. 293/17 Page 6 of 8 ledger, Ex.PW1/16 which reflects that a sum of Rs.18,06,790/- is outstanding against the defendants.
15 The defendants have preferred not to contest the present suit nor they filed any defence within the stipulated period of limitation. Therefore, the evidence adduced by the plaintiff went unchallenged and unrebutted and in the absence of anything to the contrary, there is no reason to disbelieve the evidence of the plaintiff. The evidence on record has proved case of the plaintiff and therefore, the plaintiff is entitled to recover an amount of Rs.18,06,790/-.
16 The plaintiff has also claimed interest @ 24% per annum since 01.01.2015 to 31.03.2017 i.e. date on which the present suit was filed and further interest @ 24% per annum till the final realization of the present suit. To prove that the plaintiff is entitled to interest @ 24% per annum the plaintiff has relied upon sale invoices Ex.PW1/1 to Ex.PW1/15 in which it is duly mentioned that interest @ 24% per annum will be charged if payment is not made on due date. Therefore, the plaintiff is also entitled to interest @ 24% per annum on outstanding amount of Rs.18,06,790/-.
17 In view of the aforesaid discussions, the present suit is decreed in favour of plaintiff and against the defendants for a sum of Rs.18,06,790/- (Rs. Eighteen Lacs Six Thousand Seven Hundred Ninety) alongwith interest @ 24% per annum from the date of filing of the suit till the date the realization of decreetal amount. Cost of the suit is also awarded in favour of the plaintiff alongwith pleader fees.
18 Decree sheet be prepared after paying deficient court CS No. 293/17 Page 7 of 8 fee.
19 File be consigned to Record Room as per rules.
Digitally signed(Typed to the dictation directly, corrected and pronounced in open court on 19.02.2024). RAMESH by RAMESH KUMAR KUMAR Date: 2024.02.19 16:06:37 +0530 (RAMESH KUMAR-II) ADDL. DISTRICT JUDGE-01 SHAHDARA DISTRICT KARKARDOOMA COURTS DELHI CS No. 293/17 Page 8 of 8