Delhi District Court
M/S Today Tea Ltd vs M/S Bindal Brothers on 27 April, 2022
IN THE COURT OF SH MUKESH KUMAR GUPTA
ADDITIONAL DISTRICT JUDGE-11(CENTRAL):
TIS HAZARI COURTS: DELHI
Civil Suit No. 610718/16 (New) 1288/2008(old )
CNR No.DLCT01-0000902008
(Old Case: More Than 14 years old)
M/s Today Tea Ltd.,
Registered Office:
At 409-12, Roots Tower,
District Centre, Laxmi Nagar,
Delhi-110092.
Through its Authorised Representative
Mr. L.D. Tignatia
......Plaintiff.
Vs
M/s Bindal Brothers,
Verma Niwas, S Bagh, Near Bank of India,
Kaladungi Road, Haldwani,
Dist. Nainital-263139
...... Defendant.
SUIT FOR RECOVERY OF RS. 4,69,343.01/-.
Date of institution of suit : 22.10.2008
Date of Assignment to this court : 04.10.2021
Date of hearing of final argument : 19.04.2022
Date of Judgment : 27.04.2022
Present : Ms. Priyanka Rai, Ld. Counsel for plaintiff.
Shri V.K. Mishra, Ld. Counsel for the defendant.
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 1 of 25
JUDGMENT
1. By way of present judgment, I shall conscientiously adjudicate upon a suit for Recovery of Rs.4,69,343.01Ps alongwith interest 15% per annum pendentlite and future with costs of the suit filed by the plaintiff against the defendant.
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that it is a reputed Tea Company and are supplying the Tea to its various dealers as per the terms agreed between the parties and the defendant Bindal Brothers had placed a purchase order vide its Bill No. 86 dated 15.02.2008 and Bill no. 88 dated 09.03.2008 and the plaintiff has also sent material under Dealer's scheme for which plaintiff was issued a debit note dated 31.07.2008. It has further been averred in the plaint that in compliance of defendant orders, the plaintiff has supplied the goods (tea) vide bills dated 15.02.2008 and 09.03.2008 and debit note dated 31.07.2008 and details of which are as under:-
Sl. Description Unit Quantity Dealer Customer Rate Amount No. of items Kgs.
1. 1 Pkt. Of 20 11 264 pkt 11 kg. 66.88 17,656.32ps.
pcs. Today bags Premium Tea
2. 1 pkt of 10 20 480 pkt. 20 kg. 66.88 32,108.40ps pcs Today bags Premium Tea
3. 200 pouch of 20 480 pkt. 20 kg. 130.3 68,544.00 Today bags 0 premium Tea
4. S1 Kg. Today 02 48 pkt. 2 kg. 48 bon 130.3 6,254.40ps premium tea bags china mug 0 Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 2 of 25
5. 1 pkt of 100 02 48 pkt. 39.95 1,970.60ps ps. Of Today bags No.1 Tea
6. 50 gram 05 120 kgs. 84.27 10,112.40ps pouch Of bags Today No.1 Tea
7. 100 gram 11 264 kgs. 84.27 22,247.28ps pouch Of bags Today No.1 Tea
8. 250 gram 131 3144 kgs. 84.27 2,64,944.88ps pouch Of bags Today No.1 Tea
9. 1 kg.pouch of 2 bags 48 kgs. 82.52 3,960.96ps Today No.1 Tea Grand Total 4,21,740.24ps Add. CST @ 4% 16,869.61ps SDT Total 1% 4,38,609.85ps Grand Total (rounded of) 4,38,610/-
Vide its bill No.86, dated 15.02.2008, Vehicle No. HR-38-K-5359.
Sl. Description Unit Quantity Dealer Customer Rate Amount
No. of items in Kgs.
1. 1 pkt of 30 01 24 pkt 1 kg. 39.09 938.16
pcs. Today bags
Premium
Tea
2. 1 pkt of 20 21 504 pkt 21 kg. 66.88 33,707.52ps
pcs. Today bags
Premium
Tea
3. 1 pkt of 16 21 504 pkt 21 kg. 66.88 33,707.52
pcs. Today bags
Premium
Tea
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 3 of 25
4. 1 kg. Pouch 10 240 kgs. 10 kg. 130.30 31,272.00
Today bags
Premium
Tea
5. 050 gram 04 96 kgs 84.27 8,00,89.92
pouch of bags
Today
No.1Tea
6. 100 grams 11 264 kgs. 84.27 22,247.28
pouch of bags
Today No.1
Tea
7. 250 gram 135 3240 kgs. 84.27 2,73,034.80
pouch of bags ps
Today No.1
Tea
8. 1 kg pouch 08 192 kgs. 82.52 15,843.84ps
of Today bags
No.1 Tea
Grand total 4,18,841.04ps
Add. CST @ 4% 16,753.64ps
SDT Total 1% 4,35,595.00ps
Grand Total (rounded of) 4,35,595/-
Vide its bill No. 88 dated 09.03.2008, Vehicle No. HR-38-K-5359 Ref. No. Dated: 31.07.2008 Debit Note M/s Bindal Brothers 31.07.2008.
Rudrapur, Uttrakhand, Sir, We have debited your account towards the following Rs.1,03,040.86 (Rupees. One lac Three Thousand Fourty & Paise Eighty Six only Particulars We are sending the following material for dealer scheme in advance for distribution.
Amount in Rs.
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 4 of 25 (As per Details attached) 1,03,040.86
(Rs. One Lac Three Thousand Forty & Paise Eighty Six only) Kindly confirm the same For Today Limited Manager Account M/s Bindal Brothers, Rudrapur, We are sending the following material for dealer scheme in advance for distribution.
Name of item Qty. in Pcs. Rate Amount in Rs.
Ball Pen (Add Roll) 2326 4.16 9,676.16.
Ball Pen (Luxur) 812 4.00 3,248.00
Cycle Bag 29 34.88 1,011.52
Double Bed Sheet 58 215.00 12,470.00
DVD Player LG 3 2700.00 8,100.00
DVD Player Oscar 1 2150.00 2,150
Gas Lighter 215 13.40 2881.00
Knife Piller Set 244 12.70 3,098.80
LG 14"TV 1 4300 4,300.00
Milky Mug (2pcs Set) 4 59.28 237.12
Optima Watch 8 58.50 468.00
Shopping Bag 333 12.90 4,295.70
Silver Coin 7 190.00 1,330.00
Sonata Watch 1 410.00 410.00
Steel Donga 18 18.00 32400
Steel Parat 17 38.00 646.00
Tooth Brush 260 6.84 1,778.40
Travelling Bag 84 104.62 8,788.08
Umbrella 13 60.00 780.00
United Presser Cooker 1 663.00 663.00
Today Tea Pouch of Rs.5/- 8429 3.52 29,670.008
Today Tea Pouch of 1820 7.00 12,740.00
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 5 of 25
Rs.10/-
Mug Set (4 pcs) 157 8.00 1,256.00
Mug Set (6 pcs) 173 12.00 2,076.00
1,12,397.86
less 9,357.00
Total 1,03,040.86
Vide Debit Note dated 31.07.2008 with list attached of material for dealer scheme was sent.
3. It has further been averred in the plaint that the defendant has acknowledged the receipt of goods sent by the plaintiff and material sent under dealers scheme in advance for distribution and the defendant has not paid the amount of Rs.4,69,343.01ps as per the aforementioned bills and debit note. It is further the case of the plaintiff that the plaintiff has made several request to clear the outstanding amount but of no avail and the defendant evaded to make the payment on one pretext or the other and lastly on 25.08.2008, the plaintiff was constraint to serve a legal notice of the same date upon the shop of the defendant through registered post AD calling upon the defendant to pay the suit amount with interest interest @ 15% per annum which the defendant has failed to comply and now the defendant is liable to pay a sum of Rs.4,69,343.01ps. It is further the case of the plaintiff that cause of action has firstly arisen on the date when an order was placed for purchase of goods by the defendant and subsequently arisen from time to time when defendant Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 6 of 25 failed to pay the said amount in spite of repeated requests and reminders of the plaintiff and lastly on 25.08.2008 when a legal notice was served upon the defendant. Hence the present suit for recovery of Rs.4,69,343.01ps with interests and costs.
4. It is pertinent to mention here that initially the suit was filed u/o XXXVII CPC and on the statement of Ld. Counsel for the plaintiff, the same was treated as an ordinary suit vide order dated 22.10.2008.
5. Summons for settlement of issues were sent to the defendant. The defendant contested the suit by filing a detailed Written Statement thereby taking preliminary objections that the suit is not maintainable as Ashok Kumar Son of Late Fateh Chand is residing at Verma Niwas, Aish Bagh, Haldwani, Distt. Nainital has got nothing to do with M/s Bindal Brothers which is a proprietorship concern. It has further been contended that on perusal of the agreement entered into between the parties on 31.05.2005 shows that M/s Bindal Brothers, Galla Mandi, Rudrapur (US Nagar) UK 263153 had been appointed as a consignee/agent by the plaintiff company vide agreement which was signed by the Managing Director of the plaintiff as well as Shri K.C. Aggarwal, Proprietor of M/s Bindal Brothers as such Shri Ashok Kumar had no role to play with the plaintiff nor any transaction was done by Shri Ashok Aggarwal with the plaintiff. It is claimed that the defendant Shri Ashok Aggarwal is not liable to pay any amount on account of any transaction took place between M/s. Bindal Brothers and the plaintiff. The objection qua jurisdiction has also been raised by the defendant in the preliminary Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 7 of 25 objection as defendant is residing and work for gains at Haldwani as such this court has no jurisdiction to try and entertain the present suit and has even averred that the claim against the M/s Bindal Brothers also do not fall within the jurisdiction of this court because the agreement to consignment was entered into between the parties at Rudrapur and the material was supplied at Rudarpur and no part of cause of action arisen within the jurisdiction of this court and as such the suit is liable to be dismissed u/o VII Rule 11 CPC.
6. On merits, all the allegations made in the plaint are denied. It has been denied that plaintiff has been carrying out the alleged business activities from the alleged place and any alleged negotiation were held or could have be held between the parties. It has been contended that Shri Ashok Kumar has got nothing to do with M/s Bindal Brothers nor the material stated in Bill No. 86 dated 15.02.2008 and bill No. 88 dated 09.03.2008 was ever purchased or supplied to the defendant namely Shri Ashok Kumar and Shri Ashok Kumar has no concern with the purchase or delivery of the material. It has further been contended that defendant namely Ashok Kumar is not bound by any receipts given by M/s Bindal Brothers as he had nothing to do with M/s Bindal Brothers and it is not within the knowledge of Shri Ashok Kumar Aggarwal as to whether the payments as stated were made or not made to the plaintiff. It is further contended that the notice dated 25.08.2008 was never received by the defendant namely Ashok Kumar as the same was not sent at the address where the defendant resides. It has been denied that any cause of action has arisen in favour of plaintiff and against the defendant because there is Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 8 of 25 no privity of contract between the parties. It has also been denied that the plaintiff is entitled to recover any amount from the defendant. It has finally been contended that no amount is due against the defendant and has been prayed that the suit of the plaintiff be dismissed with costs.
7. Replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement.
8. It is further pertinent to mention that after the defendant was served Sh. V.K. Mishra, Advocate filed a Vakalanama dated 07.08.2009 signed by Sh. Ashok Kumar on behalf of the defendant and also filed an application U/s 8 of the Arbitration and Conciliation Act 1996 dated 18.09.2009 on behalf of the defendant only. Thereafter, the defendant stopped appearing before the court and was proceeded exparte vide order darted 12.04.2010 of Ld. Predecessor of this court. The plaintiff led its exparte evidence partly before the court on 18.08.2010 and pressed upon its application u/o IX rule 7 CPC dated 11.05.2005 on which the evidence of PW-1 was deferred. The exparte order qua the defendant was recalled vide order dated 18.03.2014 of Ld. Predecessor of this court and the application U/s 8 of the Arbitration and Conciliation Act 1996 was dismissed on 26.07.2014.
9. On the pleadings of the parties and documents placed on record, the following issues were framed for adjudication by Ld. Predecessor of the court on 30.08.2014 specially mentioning that the court has explored Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 9 of 25 the possibility of an amicable settlement but the parties have not agreed for the same.
ISSUES.
(i) Whether this court has no territorial
jurisdiction to entertain and try the present
suit. ?OPD
(ii) Whether the plaint is liable to be rejected
under Order VII Rule 11 CPC ?OPD.
(iii) Whether the plaint is properly verified in accordance with the law and if not, its consequences thereof ?OPD
(iv) Whether the plaintiff is entitled for decree for recovery of the suit amount?OPP
(v) Whether the plaintiff is entitled for pendente lite and future interest on decree amount?if so, at what rate ?OPP
(vi) Relief.
10. Plaintiff in support of its case got examined its AR Shri L.D. Tignatia as PW1 who has reiterated the entire contents of the plaint on oath in his affidavit Ex.PW1/A. He has got exhibited the resolution executed in his favour by the Managing Director of the plaintiff company as Ex.PW1/1, copy of bills and receipt as Ex.PW1/2 (colly), copy of the debit note as Ex.PW1/3 (colly), Legal Notice alongwith postal receipt sent to defendant M/s Bindal Brothers by which demanded a sum of Rs.4,69,343.01ps as Ex.PW1/4, Statement of Account of defendant M/s Bindal Brother (Rudarpur) w.e.f. 01.04.2007 to 31.03.2008 as Ex.PW1/5(colly), copy of TIN issued by Commercial Tax Department, Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 10 of 25 Uttrakhand as Ex.PW1/6 (colly) and the copy of certificate u/s 65-B of Indian Evidence Act as Ex.PW1/7. He has further been deposed that the suit is correct and the defendant is liable to pay the outstanding amount alongwith interest and cost of the suit.
11. During the cross-examination, Ld. Counsel for defendant has tried to puncture the testimony of PW1 on the point of his authorisation, statement of account and bills, the acknowledgment on the bills being signed by him, the meaning of challan and even the part payment being made by him. During cross-examination, PW1 has admitted that he has filed the case against the Bindal Brothers (Defendant) and the plaintiff company is not concerned with the proprietorship of the defendant and the proprietor of the defendant concerned is only liable to pay the dues. Suggestions have been made by the Ld. Counsel which the witness has denied that Mr. Ashok Kumar is not a proprietor of Bindal Brothers and that Mr. Ashok Kumar has no liability to pay the plaintiff Company. He has denied the suggestion that the statement of accounts are fake. He has deposed that the Document Ex.PW1/X was executed by the plaintiff company with defendant on 31.05.2005 called as consignment agreement. He has voluntarily deposed that the transaction between the parties after 01.04.2007 is against orders and the present suit for recovery has been filed by the plaintiff against the defendant for the goods supplied without any reference to the agreement. He has said that the agreement Ex.PW1/X was signed by Managing Director Shri Rakesh Jain and on behalf of the plaintiff company and Mr. K.C. Aggarwal, Proprietor of M/s. Bindal Brothers.
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 11 of 25
12. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed on 05.07.2017 vide statement of AR of plaintiff company.
13. The defendant in support of its defence has examined Shri Ashok Kumar as DW1 who has filed his evidence by way of affidavit Ex.DW1/A. He reiterated the contents of the Written Statement on oath. He has deposed in his evidence that he has nothing to do with M/s Bindal Brothers which is a proprietorship concern as such he is not liable for the payment of the money and he has no role in signing of the agreement dated 31.05.2005 which was entered into between the plaintiff and M/s Bindal Brothers, Galla Mandi, Rudrpur (US Nagar) Uttrakhand vide which M/s Bindal Brothers were appointed as an Agent/consignee by the plaintiff Company. He has also deposed that agreement was signed by Shri K.C. Aggarwal on behalf of M/s Bindal Brothers as its Proprietor and as such he has no role in the said agreement nor any transaction had been done by him. He has deposed that material described in Bill No. 86 dated 15.02.2008 and bill No.88 dated 09.03.2008 was neither ordered to be supplied nor the same was purchased by him.
14. Cross-examination of DW1 Shri Ashok Kumar has been conducted at length by Ld. Counsel for the plaintiff and during cross-examination, he has admitted of doing the business of selling mustard oil at 34B, Galla Mandi, Haldwani, however, he has failed to file any document showing that he was doing the business of selling mustard oil in the year 2005.
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 12 of 25 Further, he has deposed that the summons of the case was received at his residence at Verma Niwas and he does not know Shri K.C. Aggarwal. He has denied the suggestion that after the death of Shri K.C. Aggarwal, he was running the proprietorship firm with the name of M/s. Bindal Brothers. The witness has admitted his signatures on his affidavit Ex.DW1/A at point A on each page. The witness has also admitted his signature on Vakaltnama dated 07.08.2009 Ex.DW1/P-5 filed on behalf of the defendant at point "A". However, he has denied his signatures on coupons dated, 03.06.2007, 03.07.2009, 27.07.2007, 07.08.2007, 20.08.2007, 29.09.2007, 06.04.2008 Ex.DW1/P-6 to Ex.DW1/P-20. He has admitted the suggestion as correct that the application u/s 8 of Arbitration & Conciliation Act was filed by his counsel under his instructions. He has also admitted that he has not mentioned in the said application hat he has no concern with the defendant. The witness has denied the suggestion that he was doing the business of tea. He has also denied the suggestion that signatures of Ex.DW1/P-1 to Ex.DW1/P-20 and on the vakalatnama of defendant, WS of the defendant, affidavit of defendant filed by way of evidence Ex.DW1/1 are of one and same person.
15. No other witness was examined by the defendant and the evidence of the defendant was closed on 16.02.2019 vide statement of Shri Ashok Kumar on behalf of defendant firm.
16. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record and have duly considered the same. My Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 13 of 25 issues-wise determination are as under:-
ISSUE No.1. "Whether this court has no territorial jurisdiction to entertain and try the present suit. ?OPD"
17. The onus of proving this issue was held upon the defendant who has taken a preliminary objection in the Written Statement, where he has stated that Shri Ashok Aggarwal resides and work for gain at Haldwani and he has no connection with M/s Bindal Brothers. In the same breathe, he has also mentioned that even claim against M/s Bindal Brothers, the defendant herein, do not fall within the jurisdiction of this court as Consignment Agreement was entered between the parties at Rudrapur and the material was also supplied to Rudrapur only. He has also tried to take a defence that the jurisdiction clause printed on the bill do not confer any jurisdiction on Delhi Courts. In his deposition before the court as DW1, Shri Ashok Kumar has simplified the averment by saying that the goods were supplied and contract was entered into at Haldwani and therefore, this court has no jurisdiction to entertain and try the instant suit. In this regard, it may be seen that the plaintiff has claimed jurisdiction on the basis of orders for Tea and Tea products being duly placed in Delhi and the goods being supplied from Delhi. The defendant in response thereto has relied upon the preliminary objection referred to above. The defendant has not specified as to which contract or agreement, he is referring to. It appears that he is referring to Ex.DW1/1 which was a consignment agreement dated 31.05.2005 between the plaintiff and the defendant whereby which the defendant was appointed consignee agent by the plaintiff. However, it is not a case of plaintiff that Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 14 of 25 the supplies were made in accordance with the aforesaid contract. On the contrary, during deposition DW1 and also PW1, it has come that the supplies were made to the defendant independent of the aforesaid contract which was earlier in existence between the plaintiff and defendant and has expired in 2007. There is nothing on record brought before the court by the defendant that there has been any agreement in vogue between the parties in respect of the present transactions which has been executed in Rudrapur. Thus, the defendant has failed to prove that the agreement to supply of Tea products has actually been taken place between the parties at Rudrapur and the supplies were not made pursuant to the request of defendant received at Delhi and the plaintiff supplying the goods from Delhi itself. The deposition of PW-1 in this regard is clear and has remained undented during cross-examination. Before parting with the issue, it would be appropriate to refer to the Tax Invoices/Bills Ex.PW1/2 (colly) which have been duly signed by defendant M/s. Bindal Brothers by one Shri Bora on 15.02.2008 and again by Shri Ashok Kumar subsequently when the goods were received by him pursuant to the bill no.88(Ex.PW-1/2). The aforesaid bills mentions that all disputes are to be settled in Delhi Jurisdiction. It is a settled preposition of law laid down in catena of Judgments that if courts at more than one place, have jurisdiction, the parties by agreement can exclude jurisdiction of one court. Reliance placed on [1995] 3 SCR 443 Angile Insulations Vs. Davy Ashmore India Ltd. and [1992] 3 SCR 106 National Thermal Power Corporation Vs. Singer Company and Ors.
Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 15 of 25
18. In view of the aforesaid discussion, the court is of the considered view that the defendant has failed to prove this issue on the taken on the yardstick of preponderance of probabilities. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
ISSUE NO. 2: "Whether the plaint is liable to be rejected under Order VII Rule 11 CPC ?OPD".
19. The onus to prove this issue was also held upon the defendant who has taken a preliminary objection that the suit is liable to be dismissed as no transaction has ever been took place between Ashok Kumar and the plaintiff company. The defendant/Shri Ashok Kumar as such is claiming absence of privity of contract between him and the plaintiff. At the same time, the defendant appears to have been relying upon the consignment agreement dated 31.05.2005 Ex.DW-1/1 executed between the plaintiff and the defendant which is shown to be a proprietorship firm with the agreement being signed by one Shri K.C. Aggarwal as proprietor of M/s. Bindal Brothers. In this regard, it may be seen at outset that the plaintiff has no where relied upon the consignment agreement dated 31.05.2005 ExDW1/1 and has clearly stated during evidence of PW1 that the supplies were made at the oral request of the defendant against which a purchase bills No.86 and 88 dated 15.02.2008 and 09.03.2008 (Ex.PW1/2) were prepared besides relying upon the material being sent against debit note dated 31.07.2008 (Ex.PW1/3) under dealer scheme. Even the bills Ex.PW-1/2 (colly) clearly reflects the word 'oral' in place of 'the purchase order number'. As per deposition of PW1, the plaintiff has also obtained a copy of certificate of Tax Department, Uttrakhand Ex.PW1/6 whereby which M/s Bindal Brothers was registered as a Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 16 of 25 proprietorship firm on 28.04.1995, though the registration was cancelled by department on 01.08.2011. It is the case of the plaintiff that the supplies pertains to the year 2008 before such cancellation and as such the proprietorship firm remained in existence vide TIN No. 05004415368. Though, the plaintiff has initially filed the suit against M/s Bindal Brothers through Mr. Ashok Kumar but later appears to have realized the same and has filed an amended memo of parties alongwith change of address on 28.01.2013.
20. Adverting to the contention of Shri Ashok Kumar as not related to the defendant firm, the same has not been duly proved by him by any cogent evidence and on the contrary Ex.PW1/2 which is a bill dated 09.03.2008 shows that the purchase was made on oral request by the defendant pursuant to which goods were supplied by the plaintiff. The receipt has been made by Shri Ashok Kumar by signing as Ashok at the bottom of the bill which clearly mentions "for Bindal Brothers, Prop./Manager". Though, the defendant has sought to deny the aforesaid signature but during cross-examination, he has admitted that at the initial stage Vakalatnama dated 07.08.2009 on behalf of defendants (Ex.DW1/P-5) was signed by him in favour of Shri V.K. Mishra, Advocate. Interestingly, the same V.K. Mishra, Advocate has filed the application dated 18.02.2009 u/s 8 of Arbitration and Conciliation Act 1996 on behalf of the defendant wherein which he has referred to the agreement dated 31.05.2005 with clause 19 that the Arbitration shall be subject to jurisdiction of Delhi Court alone. Even during cross- examination, the witness DW1 was confronted with a number of Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 17 of 25 document Ex.DW1/P-1 to P-20 which are made on the Letter Head of M/s Bindal Brother, Defendant herein and shows the signatures of Mr. Ashok Kumar with the stamp for M/s. Bindal Brothers, Prop./Manager. Though Shri Ashok Kumar has sought to deny, the signatures on Ex.PW1/2 and Ex.DW1/P-1 to Ex.DW1/P-20 but has admitted his signature of Vakalatnama Ex.DW1/P-5 and the fact that the application u/s 8 of Arbitration and Conciliation Act was filed by his counsel Shri V.K.Mishra, under his instructions. He further admits that at the time of filing of the application, he has not mentioned that he has no concern with the defendant. The signatures on the Vakalatnama, the WS filed on record, the evidence by way of affidavit Ex.DW1/A when juxtaposed with Ex.PW1/2 and Ex.DW1/P-1 to P-20 shows structural similarities. Even otherwise, while filing the Written Statement for the first time, the defendant has tried to first taken a defence that he has no privity of contract with the plaintiff but in the next paragraph he has come to the defence of M/s. Bindal Brothers by challenging the territorial jurisdiction of the court on its behalf. It is not understandable to the court that if the contention of Shri Ashok Kumar is taken up as truth and he had absolutely no relation with the defendant as manager or otherwise, why did he not file application u/o 1 Rule 10 CPC for deletion of his name from the array of parties at the outset and rather fight a proxy battle by filing the application u/s 8 of the Arbitration and Conciliation Act 1996 on behalf of the defendant. It is also not understandable of the court as to why he will receive a summons of the suit at first instance and will go on raising a defence on behalf of the defendant proprietorship firm. Added to this, are his signatures on the letter head and documents of the Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 18 of 25 defendant where he conveniently signs as prop./manager. The defence of no relation with M/s. Bindal Brothers by Sh. Ashok Kumar in the aforesaid circumstances, thus, appears to be an after thought taken at the time of filing the written statement on 22.08.2014 about 6 years after filing of the suit and atleast 5 years after the defendant first entered appearance before the court. Thus, in view of th aforesaid discussion and findings, the court is of the considered opinion that taken on the yardstick of preponderance of probabilities, the defendant has failed to prove this issue.
21. This issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO.3: "Whether the plaint is properly verified in accordance with the law and if not, its consequences thereof ?OPD"
22. The onus of proving this issue was also held upon the defendant, however, it may be seen that the defendant has failed to lead any evidence on the aforesaid issue, much less a clear and cogent evidence sufficient enough to prove the same on the yardstick of preponderance of probabilities. Since this issue has legal aspects, the same is dealt with by the court briefly. It may be seen that as per the requirement of order VI Rule 15 CPC, every pleading has to be verified at the foot either by the parties or one of the party/authorised representative who is well acquainted with the facts of the case. This verification has to be in reference to the numbered paragraphs of the pleading, as to what the verifier verifies of his own knowledge and what he verifies upon Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 19 of 25 information received and believed to be true. The verification has to be then signed by the person making it by mentioning the date and the place at which it was signed. By virtue of amendment Act in CPC (w.e.f. 01.07.2002) additionally an affidavit is required to be furnished in support of the pleadings. In the instant case, though there is a verification by one Shri L.D. Tignatia Son of Shri R.D. Sharma who is stated to be the Authorised Representative of the plaintiff duly authorised by Board Resolution dated 14.12.2007 of the plaintiff company, verifying the contents of the suit to be true and correct to the knowledge without any concealment of material facts, the same has not been in strict compliance of the provision in as much as the reference has not been made to the numbered paragraphs of the pleading as to his factual knowledge and legal belief obtained through information received or believed to be true, still, the verification solemnly verified the contents of the plaint to be correct to his best knowledge and the date and place has also been mentioned just above it. Additionally, the same is supported by an affidavit in support of the pleading as per Order VI Rule 15 (4) of CPC. It is settled preposition of law that the procedures are handmaids of justice and are meant to facilitate the same and court should avoid hypertechnical approach while reading the pleadings. The verification made by Shri L.D. Tignatia Son of Shri R.D. Sharma, the Authorised Representative of the plaintiff is clear and categoric and serves the basic purpose of verification, though the same cannot be called strictly in accordance with provision. It is further a settled preposition of law that though the same is required, however, strict non-compliance thereof, do not render the suit non-est, AIR 2006 SC 1194 Vidyawati Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 20 of 25 Gupta Vs. Bhakti Hari Nayak. Thus, the suit is held to be a valid suit and the consequences do not go to the roots or merits of the plaint. This issue is decided, accordingly against the defendant and in favour of the plaintiff.
ISSUE NO.4: "Whether the plaintiff is entitled for decree for recovery of the suit amount?OPP"
23. The onus of proving this issue was held upon the plaintiff and since this issue pertains to the entitlement of the plaintiff to the relief claimed, the same is pivotal to the entire dispute. The suit of the plaintiff in simple terms is for recovery of amounts in respect of the goods (Tea and Tea Products) supplied by the plaintiff to the defendant pursuant to the oral orders placed by the defendant. The plaintiff and the defendant had regularly dealings between them and the plaintiff company was maintaining a regular ledger account in respect of the account of the defendant where there has been debit and credit entries from time to time for the goods supplied and the payments made. The aforesaid ledger balance as on 31.07.2008 shows a outstanding balance of Rs.4,69,343.01ps which the plaintiff has claimed in the instant suit with interest. The relief of the plaintiff is based upon the tax invoice/bills No. 86 dated 15.02.2008 for a sum of Rs.4,38,610/- and bill no. 88 dated 09.03.2008 for a sum of Rs.4,35,595/- Ex.PW1/2 (colly) and the debit note for a sum of Rs. 1,03,040.86ps dated 31.07.2008 Ex.PW1/3. The Statement of Account Ex.PW1/5 is maintained by the plaintiff company in the course of its normal business and shows a number of payment being made by the defendant M/s Bindal Brothers subsequent to the aforesaid supplies. The Statement of Account has been duly proved by Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 21 of 25 the testimony of PW1 Shri L.D. Tignatia who has also filed a certificate u/s 65-B (4) of the Evidence Act Ex.PW1/7 to prove its authenticity. Thus, there has been open and mutual demand between the parties which shows that there were commercial transactions between the plaintiff and the defendant. The testimony of PW1 in respect of bills Ex.PW1/2 and the Debit Note Ex.PW1/3 are clear and cogent. The Statement of Account Ex.PW1/5 duly certified under Section 65-B of the Evidence Act, Ex.PW1/7 is clearly proved showing an outstanding amount of Rs.4,69,343.01 as on 31.07.2008. The Legal Notice Ex.PW1/4 has been sent to Regd. AD Post and the AD Card has not been returned back raising the presumption under the General Clauses Act that the same has been deemed delivered to the defendant has remained unrebutted. The notice has not been replied with nor has been refuted to have been received by the defendant. It is settled preposition of law that once a demand has been raised by way of a legal notice, the notice must respond thereto on service and if he do not controvert the same or the legal notice is not responded back, law can presume, an adverse inference to be drawn against him in the facts and circumstances of the case. Reliance placed on 1980 RLR (Note) 44 titled Kalu Ram Vs. Sita Ram and 190 (2012) DLT 253 Naraingarh Suger Mills Ltd. Vs. Krishna Malhotra.
The testimony of PW1 has remain undented during the cross-examination in respect of these documents. The only thing which is remained contentious is regarding the liability to pay the outstanding amount to the defendant for which the court has already determined the same during discussion on Issue No.2. Further, during cross-examination, PW1 Shri L.D. Tignatia has clearly stated that the case has been filed against M/s Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 22 of 25 Bindal Brothers and the plaintiff company is no concerned as to whether the same is a proprietorship firm of Shri Ashok Kumar (or not). The suggestion that Shri Ashok Kumar is not the proprietor of M/s Bindal Brother or has no liability to pay has been duly refuted. In such circumstances, the liability to pay shall be of M/s Bindal Brothers, the defendant herein, which has to be enforced in accordance with law.
24. Thus, in view of the aforesaid discussion and findings, the court is of the considered opinion that taken on the yardstick of preponderance of probabilities, the plaintiff has been successful in proving its entitlement for recovery of Rs.4,69,343.01 ps ( rounded of to Rs.4,69,343/-) against the defendant M/s. Bindal Brothers.
25. This issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.5: "Whether the plaintiff is entitled for pendente lite and future interest on decree amount?if so, at what rate ?OPP"
26. The onus of proving this issue was also upon the plaintiff who has claimed an interest @ 15 % per cent per annum on the principal amount from the date of institution of the suit till its realization. However it may be seen that there is no specific agreement to pay interest on the outstanding amount. Though the bills Ex.PW1/2 contain a stipulation that the interest @ 24 % will be charged if the payment is not received in time. However, it is nowhere specified that the payment has to be made immediately on presentation. The plaintiff has claimed an interest @ Civil Suit No.610718/2016 M/s Today Tea Ltd. Vs. Ms Bindal Brothers Page no. 23 of 25 15% per annum in the legal notice dated 25.08.2008 Ex.PW1/4, the suit and even in the affidavit Ex.PW1/A. In the absence of any agreement to show that there was an interest component agreed to between the parties, the court shall be left with no option but to go to the provisions of section 34 of CPC and provisions of interest Act since the amount is outstanding. Under these circumstances and taking in view the transaction being commercial in nature, court is of the considered opinion and interest of justice would be met, if the plaintiff is granted an interest @ 9% per annum on the decreetal amount pendente-lite and future from the date of filing of the suit till the date of its realization. This issue is decided accordingly.
ISSUE No.6: Relief.
27. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement to the recovery against the defendant. The suit of the plaintiff is accordingly decreed against the defendant for a sum of Rs.4,69,343/-. The plaintiff shall also entitled to a simple interest @ 9% per annum on such amount pendente-lite and future from the date of institution of the suit till its realization.
28. In the specific facts and circumstances of the case, the plaintiff shall also be entitled to the costs of the suit.
29. Decree sheet be drawn accordingly.
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30. File be consigned to record room after due completion.
(MUKESH KUMAR GUPTA)
DATED 27.04.2022 ADJ-11/CENTRAL/DELHI
ANNOUNCED IN THE OPEN COURT .
(PK)
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