Delhi District Court
Shaila Enterprises vs Rdc Concrete (India) Ltd on 12 September, 2014
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 330/14 (Old Suit No. 49/09)
Unique Case ID No. 02401C004122009
Shaila Enterprises, (HUF),
Through
Shri Gyan Chand Khattar, Karta,
155, DDA Office Complex,
Jhandewalan Extension,
New Delhi110055. ........ Plaintiff.
VERSUS
RDC Concrete (India) Ltd.,
Behram Pur Khandsa Road,
Gurgaon, Haryana. ....... Defendant.
Date of institution of the suit : 30.01.2009
Date on which order was reserved : 26.08.2014
Date of decision : 12.09.2014
SUIT FOR RECOVERY OF RS. 19,40,019/ WITH PENDENTE
LITE INTEREST
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is Suit No. 330/14 (Old Suit No. 49/09) Page No. 1/23 a Hindu Undivided Family and the present suit has been filed through Sh. Gyan Chand Khattar, the Karta of the plaintiff. It has been further stated that the plaintiff is engaged in the trading of Ready Concrete Mix. It has been further stated that the plaintiff also owns Transit Mixers Mounted on Trucks, which the plaintiff lets out for the purposes of earning income from the hire charges of such trucks. It has been further stated that the defendant is a corporate body previously known as Unitech Prefab Ltd. engaged in the construction activities at a very large scale. It has been further stated that the plaintiff has been buying Ready Concrete Mix from the defendant for trading purposes and the plaintiff has also been obtaining the services of the defendant for construction job work on assignment basis. It has been further stated that on the other hand, the defendant has been hiring the Truck Mounted Ready Mixers from the plaintiff and the defendant has been paying the hire charges in respect of the Trucks taken on hire to the plaintiff. It has been further stated that the business in between the plaintiff and the defendant has been continuing since April 2003 till March 2006. It has been further stated that various transactions took place in between the parties to the present suit and both the sides raised various bills/ invoices. It has been further stated that at the end of March, 2006, an amount of Rs. 45,55,426.00/ was due from the defendant to the plaintiff in respect of the trucks taken on hire by the defendant and a sum of Rs. 34,27,508/ was due from the Suit No. 330/14 (Old Suit No. 49/09) Page No. 2/23 plaintiff to the defendant in respect of Ready Concrete Mixers purchased by the plaintiff and the work orders completed by the defendant at the behest of the plaintiff. It has been further stated that the complete and true statements of such mutual open and current accounts in between the parties to the present suit is being filed alongwith the plaint. It has been further stated that as per the statement of account, the plaintiff is entitled to receive an amount of Rs. 11,27,918.00/ together with the interest @ 24% per annum from the defendant. It has been further stated that the last transaction in the statement of accounts has been shown as 05.03.2006. It has been further stated that the plaintiff also claims an amount of Rs. 8,12,101.00/ as interest @ 24% per annum till the date of the filing of the present suit and hence, the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for an amount of Rs. 19,40,019.00/ (Rs. 11,27,918/ towards the principal and Rs. 8,12,101.00/ towards the interest) together with the pendente lite and future interest @ 24% per annum on the principal amount of Rs. 11,27,918.00/. The plaintiff has also prayed for the costs of the suit.
3. Written statementcumclaim of set off has been filed on record by the defendant stating therein that the defendant is a registered company under the Companies Act having its registered office at Mumbai and regional office at Gurgaon, Haryana. It has been further Suit No. 330/14 (Old Suit No. 49/09) Page No. 3/23 stated that Sh. Vipin Gupta, Accounts Officer of the defendant is authorized by the Resolution dated 19.08.2009 to sign and verify the written statement on behalf of the defendant. The defendant has taken the stand that the present suit is an abuse of the process of law because the plaintiff is liable to pay to the defendant more than Rs. 43,70,219/. It has been further stated that the plaintiff has filed the suit on the basis of manipulated and forged documents with the dishonest intention to avoid the claim of the defendant. It has been further stated that the defendant has not hired the services of the plaintiff after 31.12.2005 and as such, the invoices dated 15.02.2006 and 05.03.2006 filed by the plaintiff are forged and fabricated. It has been further stated that the said invoices have been fabricated by the plaintiff with a view to bring the present suit within the period of limitation. It has been further stated that the defendant had already cleared the rest of the invoices of the plaintiff. It has been further stated that the plaintiff raised inflated bills by increasing the kilometers run by the Transit Mixers and sometimes the rates charged were more than the agreed per kilometer rate. It has been further stated that the discrepancies were removed after bringing the same to the notice of the plaintiff telephonically and the bills were settled and the appropriate payments, as per the agreements in between the parties were made by the defendant. It has been further stated that this Court does not have the territorial jurisdiction to entertain and try the present suit because the Suit No. 330/14 (Old Suit No. 49/09) Page No. 4/23 initial agreement in between the parties to the present suit was finalized and signed at the office of the defendant at Mumbai and it was mutually decided by the parties that only the Courts at Mumbai shall have the exclusive jurisdiction to entertain and try the present suit.
4. On merits as well, the defendant has reiterated the abovesaid stand as taken by the defendant in the preliminary objections of the written statement. The defendant has taken the stand that vide letter dated 31.03.2003, the plaintiff company was appointed as its Marketing Agent for Ready Mixed Concrete by the defendant. It has been further stated that the plaintiff continued to purchase Ready Mixed Concrete from the defendant even after the Unitech Prefab Ltd. was renamed as RDC Concrete India Ltd. w.e.f. 14.02.2005. It has been further stated that the defendant continued to supply Ready Mixed Concrete till 15.01.2006 and thereafter, the defendant stopped supplying the Ready Mixed Concrete to the plaintiff as he was not making payments of the pending bills towards supply of Ready Mixed Concrete to the plaintiff as on 15.01.2006. It has been further stated that the plaintiff did not pay the amount due to the defendant inspite of the various requests by the defendant including the letter dated 04.05.2006. It has been further stated that the defendant, at times, used to purchase cement from the plaintiff and the bills, after necessary verification, were passed and cleared and as on 15.01.2006, no amount whatsoever was outstanding on account of supply of cement. It Suit No. 330/14 (Old Suit No. 49/09) Page No. 5/23 has been further stated that the defendant company also entered into the contract of Hiring Transit Mixers from the plaintiff w.e.f. September 2003 and this contract was renewed from time to time. It has been further stated that after 31.12.2005, the defendant did not hire any truck from the plaintiff. It has been further stated that after reconciliation and finalization of the accounts, it was found that the plaintiff was liable to pay an amount of Rs. 43,70,219/ to the defendant on 31.01.2006. It has been further stated that the plaintiff, after a long gap, sent a letter dated 18.10.2006 alongwith the copies of some bills for hiring of Transit Mixers and cement supplied to the defendant, but no copy of the logbooks to support the hiring of the Transit Mixers nor any challan for supply of the cement were attached with the bills and hence, the contents of the letter dated 18.10.2006 could not be verified. The defendant has denied for want of knowledge that the plaintiff is a HUF. The defendant has admitted the business relations with the plaintiff. The defendant has denied that it is engaged in the business of construction work. The defendant has admitted that it was having mutual business relation with the plaintiff since April 2003. It has been further stated that the statement of account in the form of Annexure A and Annexure B filed by the plaintiff is forged and fabricated. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with exemplary cost. It has been further prayed that in case, Suit No. 330/14 (Old Suit No. 49/09) Page No. 6/23 any amount is found to be due against the defendant qua the plaintiff after the trial, the same be set off to the tune of Rs. 19,40,018/.
5. Replicationcumwritten statement to the claim of set off has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant.
6. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 15.04.2010 :
1) Whether this Court has no territorial jurisdiction to entertain and try the present suit?OPD.
2) Whether the present suit is barred by limitation?OPD.
3) Whether the present suit has been signed, verified and instituted by a duly authorized person on behalf of the plaintiff?OPP.
4) Whether the plaintiff is entitled to recover the amount of Rs. 19,40,019/ from the defendant, as claimed in the plaint?OPP.
5) Whether the defendant is entitled for his counterclaim/ set off for Rs. 19,40,018/? OPD.
6) Whether the parties are entitled for any interest on their claims or the counterclaims, as claimed by them in their respective pleadings? If so, at what rate and for which Suit No. 330/14 (Old Suit No. 49/09) Page No. 7/23 period?OPP.
7) Relief.
EVIDENCE :
7. The plaintiff has examined Sh. Gyan Chand Khattar, its Karta as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit Ex. PW1/A, the Agreement dated 31.03.2003 as Ex. PW1/1, the Confirmation Letter dated 21.05.2003 as Ex. PW1/2, Agreement dated 30.09.2003 as Ex. PW1/3, Agreement dated 11.04.2004 as Ex. PW1/4, the terms of the contract as Ex. PW1/5, Agreement dated 17.08.2004 regarding Hiring of Transit Mixers as Ex. PW1/6, letter of Confirmation dated 18.02.2005 as Ex. PW1/7, Letter dated 26.02.2005 as Ex. PW1/8, Letter dated 06.06.2005 as Ex. PW1/9, Letter dated 03.09.2005 as Ex. PW1/10, Letter dated 07.09.2005 as Ex. PW1/11, Letter dated 10.10.2005 as Ex. PW1/12, the term of the contract as Ex. PW1/13, request letter dated 18.02.2006 as Ex. PW1/14, Letter for request of releasing the outstanding sent on 20.03.2006 as Ex. PW1/15, Letter dated 04.05.2006 as Ex. PW1/16, Letter dated 05.05.2006 as Ex. PW1/17, Letter dated 18.10.2006 as Ex. PW1/18, Legal notice dated 15.01.2009 as Ex. PW1/19, Postal receipt thereof as Ex. PW1/20 and AD card as Ex. PW1/21.
Suit No. 330/14 (Old Suit No. 49/09) Page No. 8/23
8. The plaintiff has further examined Sh. Dharmender Kumar, its Accountant as PW2 and this witness in his evidence by way of affidavit has supported the case of the plaintiff as per the stand of the plaintiff as contained in the plaint. He has filed on record his evidence by way of affidavit Ex. PW2/A, statement of account in respect of hiring of the truck charges as Ex. PW2/1 and the statement of account in respect of purchases made by the plaintiff from the defendant as Ex. PW2/2.
9. The defendant has examined Sh. Dinesh Kumar Sharma, its Assistant Manager as DW1 and in his evidence by way of affidavit Ex. DW1/1 on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. This witness has filed on record his affidavit as Ex. DW1/A, certified copy of the Board Resolutions dated 19.08.2009 and 29.05.2012 as Ex. DW1/A and Ex. DW1/B, Letter dated 04.05.2006 as Ex. DW1/C and Statement of account of the plaintiff company alongwith certificate U/s 65B of the Indian Evidence Act as Ex. DW1/D (colly).
10. The detailed testimonies of these witnesses shall be discussed in the later part of this judgement.
11. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties.
Suit No. 330/14 (Old Suit No. 49/09) Page No. 9/23
12. My issuewise finding on the abovesaid issues is as under:
Issues No. 4, 5 & 6 :
13. All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
14. The factual controversy involved in the present suit is within a narrow compass. The defendant has not denied that it had business dealings with the plaintiff since April 2003. The defendant has admitted that it used to hire Transit Mixers Mounted on Trucks from the plaintiff. The plaintiff has stated that after conciliation of the accounts, the defendant owes an amount of Rs. 45,55,426.00/ to the plaintiff, whereas, the plaintiff owes an amount of Rs. 34,27,508.00/ and as such, the plaintiff is entitled for the amount of Rs. 11,27,918.00/ from the defendant towards the principal amount. The defendant, on the other hand, has taken the stand that the bills and the statements of account placed on record by the plaintiff are forged and fabricated. The defendant has taken the stand that after 31.12.2005, it did not hire any services from the plaintiff and as such, the invoices dated 15.02.2006 and 05.03.2006 are forged and fabricated. The defendant has further taken the stand that inflated bills were used to be raised by the plaintiff either by increasing the kilometers run by the Transit Mixers or by charging the amount at Suit No. 330/14 (Old Suit No. 49/09) Page No. 10/23 higher rates than the agreed rate. It has been further stated that after rectifying the bills and after bringing the same to the notice of the plaintiff, all the bills stand already paid by the defendant. The defendant has further taken the stand that it also used to buy cement from the plaintiff, but nothing is due on account of the purchase of the cement. The defendant has further taken the stand that the plaintiff was appointed as its Marketing Agent for Ready Mixed Concrete by the defendant. The defendant has further taken the stand that the plaintiff owes an amount of Rs. 43,70,219/ to the defendant.
15. In the light of the abovesaid pleadings of the parties, the vital question to be considered by this Court is as to whether the plaintiff has been able to prove that the dealings took place with the defendant even after 31.12.2005. The plaintiff has also to prove that the defendant hired the trucks from the plaintiff even after 31.12.2005 because the defendant has taken a clearcut stand that the trucks were not hired at all by the defendant from the plaintiff after 31.12.2005. This Court has to further see as to whether the plaintiff has been able to prove the statement of accounts filed on record by the plaintiff in the form of Ex. PW2/1 and Ex. PW2/2 and the bills/ invoices placed on record by the plaintiff and exhibited by PW2 in his evidence by way of affidavit as Ex. PW2/3 to Ex. PW2/38.
16. The defendant, in the written statement, has a taken a Suit No. 330/14 (Old Suit No. 49/09) Page No. 11/23 categorical stand that no trucks were hired by it from the plaintiff after 31.12.2005. Sh. Gyan Chand Khattar, Karta of the plaintiff has examined himself as PW1 and in his crossexamination carried out on 09.05.2011, this witness has stated that he does not remember whether the defendant had not hired TMT Trucks after 31.12.2005. PW1 in the further cross examination done on 18.01.2012 further states that he cannot admit or deny the suggestion that the defendant did not hire any TMT trucks after 31.12.2005 from the plaintiff. As such, I am of the opinion that the plaintiff has utterly failed to prove that the defendant hired the trucks from the plaintiff even after 31.12.2005 and rather, the defendant has been able to prove that it did not hire any truck from the plaintiff after 31.12.2005.
17. The most vital question, as has been stated hereinabove, which is to be considered by this Court is as to whether the plaintiff has been able to prove its statement of accounts Ex. PW2/1 and Ex. PW2/2 and as to whether the plaintiff has been able to prove on record various invoices in the form of Ex. PW2/3 to Ex. PW2/38.
18. PW1, Sh. Gyan Chand Khattar has stated in his cross examination that he has no knowledge pertaining to the accounts of the plaintiff. PW1 further states that at the relevant time, his accountant Mr. Anthoney Joseph used to feed the relevant entries pertaining to the transactions with the defendant, maintain and prepare the accounts of the Suit No. 330/14 (Old Suit No. 49/09) Page No. 12/23 defendant. PW1 further states that Mr. Joseph had the exclusive knowledge of the entries shown in the accounts of the defendant maintained by the plaintiff.
19. PW2, Sh. Dharmender Kumar, the accountant of the defendant has stated in his evidence by way of affidavit Ex. PW2/A on record in para no. 2 thereof that a complete and true statement of such mutual, open and current account maintained by the plaintiff and used in the normal course of business was maintained by him and fed in the computer which is owned and maintained by the Karta of the plaintiff. In the crossexamination, PW2 states that he does not know who was the accountant prior to his joining. In the very next line, PW2 states and admits it to be correct that Mr. Anthoney Joseph was the accountant prior to his joining. PW2 further states that no transaction pertaining to the present case ever took place in his presence. PW2 further states that he was deposing before the Court only on the basis of the record. PW2 further states that Mr. Gyan Chand Khattar never fed any entry of the accounts in computers. PW2 further states that Mr. Gyan Chand Khattar neither prepared, nor wrote the accounts of the plaintiff and the accounts were prepared and maintained by Mr. Anthoney Joseph. PW2 further states that the accounts were prepared and maintained by the lower staff. PW2 again states that he is not sure as to who prepared and maintained the record of the plaintiff company. PW2 further states that he has not Suit No. 330/14 (Old Suit No. 49/09) Page No. 13/23 stated in his affidavit Ex. PW2/A that the true and correct statement of accounts was maintained by him and fed in the computer which was owned and maintained by the Karta of the plaintiff company. PW2 further states that he cannot admit or deny that no truck was given on hire by the plaintiff to the defendant against bill nos. 117, 143, 144, 148, 151, 170, 182, 184, 186, 201, 202, 205, 208, 211, 230, 232, 235, 237, 327 and
328. PW2 further states that he does not remember if the defendant did not hire any truck from the plaintiff after 31.12.2005.
20. Going by the abovesaid crossexamination of PW2, it is evidently clear that the testimony of PW2 is completely shaken in the crossexamination and he has not withstood the contents of his affidavit in his crossexamination. I have no hesitation to hold that PW2 has deposed diametrically opposite to his stand as contained in his evidence by way of affidavit Ex. PW2/A on record.
21. The crossexamination of PW1 and PW2, to my mind, is sufficient in itself to bring home the point that the plaintiff has utterly failed to prove the statement of accounts Ex. PW2/1 and Ex. PW2/2 and the various bills/ invoices placed on record by the plaintiff from Ex. PW2/3 to Ex. PW2/38.
22. Furthermore, it has to be seen that in the plaint, the plaintiff has not uttered even a single word about the supply of cement. It is the defendant, who has disclosed in the written statement for the first time Suit No. 330/14 (Old Suit No. 49/09) Page No. 14/23 that it used to purchase the cement from the plaintiff. The defendant has taken the stand in the written statement that all the bills pertaining to the cement stand paid by the defendant to the plaintiff. PW2, the accountant of the plaintiff in the crossexamination states that he does not know who used to prepare, issue, sign and deliver the cement bills for the supply of cement to the defendant on behalf of the plaintiff. PW2 gives a similar reply with regard to the bills raised for TMT against the defendant by the plaintiff. As such, I have no hesitation to hold that the plaintiff has not been able to prove anything on record for the supply of cement as well.
23. The defendant has taken the categorical stand that the statements of account filed on record by the plaintiff and the bills/ invoices placed on record by the plaintiff are forged and fabricated because the plaintiff failed to supply the logbook for the verification of the bills pertaining to the hiring of the trucks and the delivery challans to verify the bills pertaining to the supply of cement. DW1, the Assistant Manager of the defendant, in the crossexamination states that he has correctly mentioned in para no. 7 of his affidavit that the bills dated 17.12.2005, 27.12.2005 and 05.01.2006 pertaining to the supply of cement by the plaintiff to the defendant were forged and fabricated because no such purchase was made and no supply ever took place to the defendant company against the abovesaid bills. DW1 in the crossexamination, further states that the copy of the logbook was not attached with the Suit No. 330/14 (Old Suit No. 49/09) Page No. 15/23 invoices and that is why, in para no. 9 of his evidence by way of affidavit, he has stated that the invoices placed on record by the plaintiff were forged and fabricated.
24. The defendant has taken a categorical stand in the written statement that the bills placed on record by the plaintiff pertaining to the hiring of the trucks by the defendant were not supported by the logbook and the bills pertaining to the supply of the cement were not supported by the delivery challans. PW1, in the crossexamination, clearly states that the copy of the logbook was never supplied to the defendant alongwith the bills. By way of volunteer, PW1 states that there was no need to supply the copy of the logbooks because the logbooks remained in the custody of the defendant. PW1 denies the suggestion that the logbooks remained in the truck. By way of volunteer, PW1 states that it remained in the possession of the defendant. However, PW1 admits in the cross examination that the truck driver was the employee of the plaintiff. PW1 in the cross examination further states that the defendant used to verify the logbooks of the trucks and used to certify it on monthly basis. PW1 further states that no certificate was used to be received from the employee of the defendant regarding the use of the truck on daily basis. PW1 further states in the crossexamination that he had not attached the copy of the logbooks with the documents Ex. PW1/18 with regard to the bill of hiring of the TMTs. PW1 further states in the crossexamination Suit No. 330/14 (Old Suit No. 49/09) Page No. 16/23 that no written receipt/ acknowledgment was received by the plaintiff at the time of delivery of the cement. PW1, by way of volunteer, further states that only the signatures were used to be received on rough delivery papers as no purchase orders were placed by the defendant. PW1 further states that initially, the purchase orders were issued by the defendant but after sometime, the defendant discontinued the practice of issuing the purchase orders and the business continued verbally. PW1 further states that he does not remember the time upto which the purchase orders were issued by the defendant in writing. PW1 further states that sometimes the cement bills were accompanied by delivery challans, however, when Form No. 38 was not supplied, no delivery challan was annexed with the cement bills. PW1 further states that sometimes, acknowledgment was given by the defendant on plain paper. PW1 further states that he can produce the acknowledgment given by the defendant on the plain paper against the receipt of the cement. PW1 further states that he must have placed those acknowledgments on record. During the crossexamination of PW1, copy of bill no. 0157S was exhibited as Ex PW1/D1 and copy of the bill no. 0158S was exhibited as Ex. PW1/D2. The proforma invoice attached with the Ex. PW1/D1 was exhibited as Ex. PW1/D3 and the delivery challan was exhibited as Ex. PW1/D4. The proforma invoice attached with the Ex. PW1/D2 was exhibited as Ex. PW1/D5 and the photocopy of the inward challan was exhibited as Ex. PW1/D6 and the Suit No. 330/14 (Old Suit No. 49/09) Page No. 17/23 delivery challan was exhibited as Ex. PW1/D7. PW1 admitted the issuance of Ex. PW1/1, Ex PW1/D3, Ex. PW1/D2, Ex. PW1/D5, Ex. PW1/D6. PW1 further states that the logbooks and the challans as mentioned in the Ex. PW1/18 were not supplied to the defendant as the same were already in the possession of the defendant.
25. PW2, the Accountant of the plaintiff, in his cross examination states that he cannot say against which particular bill, the goods were supplied to the defendant or against which particular bill, the concrete was supplied by the defendant to the plaintiff or against which particular bill, the trucks on hire were given by the plaintiff to the defendant. PW2 further states that he does not know whether a logbook was maintained in the trucks of the plaintiff. PW2 further states that he does not know the system and working of truck hire charges, supply of cement and purchase of concrete by the plaintiff and the transaction in between the parties to the present suit.
26. PW1, in his evidence by way of affidavit, in para no. 6 thereof has relied upon the agreement dated 17.08.2004, which has been placed on record as Ex. PW1/6 by the plaintiff itself. Perusal of the said agreement clearly reveals that the bills submitted by the plaintiff were to be accompanied by the logsheets and the payment was to be made after submission and checking of the bills alongwith the logsheets.
27. Perusal of the crossexaminations of PW1 and PW2 clearly Suit No. 330/14 (Old Suit No. 49/09) Page No. 18/23 bring home the point that logbooks and delivery challans were not supplied by the plaintiff to the defendant. Perusal of Ex. PW1/6 which is one of the agreement in between the parties to the present suit clearly reveals that the supply of the logbooks by the plaintiff to the defendant was mandatory. As such, I have no hesitation to hold that the Ld. Counsel for the defendant has rightly argued that the plaintiff has utterly failed to prove various bills/ invoices placed on record by the plaintiff in the form of Ex. PW2/3 to Ex. PW2/38.
28. Furthermore, it has to be seen that Ld. Counsel for the defendant from the crossexaminations of PW1 and PW2 has been able to bring home the point that credit was being given to the defendant on account of breakdown of trucks. PW1 in the crossexamination states that he cannot give any assessment regarding the breakdown of the trucks during the period w.e.f. 2003 to 2005.
29. Ld. Counsel for the plaintiff has vehemently argued that there are contradictions in the testimony of DW1 as well. The settled law is that the plaintiff has to stand upon his own legs and has to prove his case by way of cogent and reliable evidence in order to obtain the relief from the Court. Again, the settled law is that the plaintiff cannot be allowed to take benefit of the lacunae, if any, left by the defendant in proving its own case.
30. In the light of the abovesaid discussions, I have no hesitation Suit No. 330/14 (Old Suit No. 49/09) Page No. 19/23 to hold that the entire case of the plaintiff is based upon the statement of accounts Ex PW2/1 and Ex. PW2/2 and the bills/ invoices Ex. PW2/3 to Ex. PW2/38. I have no hesitation to hold that the plaintiff has utterly failed to prove the abovesaid documents by way of some reliable and trustworthy evidence. As such, I am of the opinion that the plaintiff has utterly failed to prove issue no. 4 in its favour and as such, issue no. 4 is decided against the plaintiff.
31. Issue no. 5 pertains to the plea of set off as taken by the defendant in the written statement. But it has to be seen that the defendant has categorically stated that it claims the set off of Rs. 19,40,018/, in case any amount is found to be due against the defendant. Under issue no. 4, it has already been held that the plaintiff has failed to prove on record that the defendant is liable to pay any amount to the plaintiff and as such, issue no. 5 does not require any adjudication to the effect that the defendant is entitled for the claim as set up by the defendant in the plea of set off. Issue no. 5, thus, stand decided accordingly.
32. Issue no. 6 pertains to the interest. In the light of my findings upon issues no. 4 and 5, I am of the opinion that both the parties are not entitled for any interest. As such, issue no. 6 stand decided accordingly. Issues No. 1 :
Suit No. 330/14 (Old Suit No. 49/09) Page No. 20/23
33. The defendant in the written statement has taken an objection that this Court does not have any territorial jurisdiction to entertain and try the present suit because the registered office of the defendant is situated at Mumbai. The defendant has further stated that the initial agreement in between the parties to the present suit was finalized and signed at the office of the defendant at Mumbai and the parties had conferred the exclusive jurisdiction on the courts situated at Mumbai.
34. It has to be seen that the various agreements placed on record by the plaintiff which were executed in between the parties to the present suit have not been denied by the defendant. Perusal of Ex. PW1/6, which is one of the agreements, which was executed in between the parties to the present suit reveals that the Transit Mixers were to be operated at Delhi and Gurgaon. Perusal of the said agreement further reveals that the payment was to be made after submission and checking of the bills alongwith logsheets from the Punjabi Bagh Plant Office and Khandsa Plant office of the defendant. As per the own assertion of the defendant, the regional office of the defendant is situated at Gurgaon (Haryana). As such, I have no hesitation to hold that part of the cause of action has arisen within the territorial jurisdiction of this Court. Accordingly, issue no. 1 is decided against the defendant and in favour of the plaintiff.
Suit No. 330/14 (Old Suit No. 49/09) Page No. 21/23 Issue No. 2 :
35. Issue no. 2 pertains to the plea of limitation as taken by the defendant in the written statement. The defendant has taken a categorical plea in the written statement that trucks were not hired by the defendant to the plaintiff after 31.12.2005. The plaintiff in the plaint has asserted that the last transaction took place in between the parties to the present suit on 05.03.2006 and the accounting year came to a close on 31.03.2006. The present suit has been filed by the plaintiff on 31.01.2009. The present suit not only pertains to the services provided by the plaintiff pertaining to the hiring of the trucks by the defendant, but also to the bills, which were raised by the plaintiff against the defendant for the supply of cement. As such, I have no hesitation to hold that the defendant has failed to prove that the present suit is barred by the law of limitation. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue No. 3 :
36. The present suit has been signed and filed by Sh. Gyan Chand Khattar, who claims himself to be the Karta of the plaintiff. As per the case of the plaintiff, the plaintiff is a Hindu Undivided Family. As stated by him hereinabove, various agreements were executed in between the parties to the present suit and the same have been placed on record by Suit No. 330/14 (Old Suit No. 49/09) Page No. 22/23 the plaintiff. Perusal of the said agreements such as Ex. PW1/3, Ex.
PW1/4, Ex. PW1/6 etc. which are on the letterhead of the defendant reveals that all the correspondence has been addressed to the plaintiff and to Mr. Gyan Chand Khattar. As such, I am of the opinion that the plaintiff has been able to prove that the present suit has been signed, verified and instituted by a duly authorized person on behalf of the plaintiff. Relief :
37. In the light of my findings upon issue no. 4, the suit of the plaintiff is hereby dismissed. The plea of the defendant as contained in the set off is also dismissed. No orders as to costs.
Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR)
on this 12th day of September 2014. ADJ17 (Central)
Tis Hazari Courts, Delhi.
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