Delhi District Court
Hetu Narang vs Mohit Karak on 23 November, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 1755/2021
CNR No. DLCT01-0074422021
DLCT010074422021
Ms. Hetu Narang,
Prop. of M/s A.V. Impex.
Office at:
435, IInd Floor, Katra,
Maidgran, Khari Baoli,
Delhi-110006
Through her attorney
Mr. Vimal Narang
......Plaintiff.
Vs
Shri Mohit Karak,
Prop. of M/s Ganpati Traders,
R/o 204, Sai Om Hridayala Appartments,
Sunder Pur, Opp. Rajkiya Polytechnic college,
Darbanga-846005 (BIHAR)
Mobile No. 07667155351, 09334912590
E-mail ID [email protected] ..... Defendant.
SUIT FOR RECOVERY OF RS. 70,03,712/-.
Date of institution of suit : 11.06.2021
MUKESH
Digitally signed
by MUKESH
First Date before this court : 08.04.2024
KUMAR
KUMAR GUPTA
Date: Date of hearing of final argument : 23.11.2024
GUPTA
Date of Judgment : 23.11.2024
2024.11.23
02:56:33 -0800
CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 1 of 35
Appearance(s): Mr. Vijay Sehgal & Ms. Punya Sehgal, Ld. Counsels for the
plaintiff.
Shri. Sagar Shivam Jaiswal, Ld. Counsel for the defendant.
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon the plaintiff's suit against the defendant for Recovery of Rs.70,03,712.47ps/- alongwith interest @ 24% per annum pendentlite and future. The plaintiff has also prayed for costs of the suit.
(B) CASE OF THE PLAINTIFF
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:
2.1) The plaintiff is the proprietor of M/s A.V. Impex and is in the business of food grains and dry fruits. The plaintiff Smt. Hetu Narang appointed her husband Shri Vimal Narang as her attorney by virtue of the Special Power of Attorney to file the present matter against the defendant. He is also well aware with the facts of the present matter.
2.2) It is further the case of the plaintiff that plaintiff is a wholesaler of food grains and dry fruits and the defendant namely Shri Mohit Karak, Proprietor of M/s Ganpati Traders approached the plaintiff at its registered office and has shown his willingness to start business with the plaintiff and after the settlement of the terms and conditions, the MUKESH by Digitally signed MUKESH KUMAR plaintiff started its business with the defendant and it was agreed between KUMAR GUPTA Date:
GUPTA 2024.11.23 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 2 of 35 02:56:51 -0800 them that the plaintiff shall supply the food grains and dry fruits to the defendant, for which the plaintiff shall raise bills/invoices and after the material is delivered to defendant, the defendant shall make the payment of bills/invoices within a week from the date of such bills/invoices. Accordingly, the plaintiff supplied the aforesaid food grains and dry fruits to the defendant in safe and sound condition vide different bills/invoices, for which the defendant made part payment of the bills/invoices. The plaintiff maintained a running and open account of the defendant in respect to the aforesaid transactions. It has been further averred that after the bills/invoices were raised, the defendant had always delayed the payment on one pretext or the other despite the fact that the payment was to be made within 7 days from the date of such bills/invoices. The plaintiff has filed on record the bills/invoices as well as the tax payment including the Statement of Account in respect of the transaction took place with the defendant for the period 01.04.2017 uptil 31.03.2020, which are as under:-
Sl. No. Invoice Dated Amount E-way bill Nos.
No. 1 00002 19.06.2017 49572 2 37 26.07.2017 24,072 3 00003 21.06.2017 1,59,936 4 65 05.08.2017 48,144 5 76 11.08.2017 60,375 6 91 17.08.2017 1,30,536 7 92 17.08.2017 1,88,163.50 8 100 18.08.2017 1,24,687.50 9 115 22.08.2017 2,86,682.06 MUKESH Digitally signed by MUKESH 10 118 23.08.2017 1,27,008 KUMAR KUMAR GUPTA GUPTA Date:
2024.11.23 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 3 of 35 02:56:59 -0800 11 125 24.08.2017 35,280 12 126 24.08.2017 1,33,875 13 128 24.08.2017 49,350 14 129 24.08.2017 47,196.80 15 130 25.08.2017 49,612.50 16 134 26.08.2017 48,426 17 136 28.08.2017 49,203 18 140 30.08.2017 2,80,875 19 141 30.08.2017 24,696 20 156 05.09.2017 2,94,000 21 197 15.09.2017 2,09,223 22 213 20.09.2017 47,790 23 234 23.09.2017 1,82,982 24 261 03.10.2017 32,144 25 274 07.10.2017 85,260 26 343 01.11.2017 4,28,610 27 346 02.11.2017 1,85,126.03 28 350 03.11.2017 23,887.50 29 363 10.11.2017 2,62,584 30 401 24.11.2017 2,70,776.10 31 414 29.11.2017 1,34,848 32 418 29.11.2017 48,825 33 490 23.12.2017 10,88,554.01 34 564 19.01.2018 4,93,440 35 586 27.01.2018 1,84,275 36 597 29.01.2018 1.08.192 37 598 29.01.2018 1,45,981 38 601 30.01.2018 96,544 39 632 08.02.2018 83,420 40 642 10.02.2018 4,47,654 41 644 12.02.2018 18,375 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.11.23 02:57:06 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 4 of 35 42 646 12.02.2018 74,603 43 675 19.02.2018 3,32,675 44 678 20.02.2018 1,70,985 45 682 22.02.2018 32,256 46 697 28.02.2018 2,72,668 47 709 07.03.2018 47,145 48 741 21.03.2018 4,71,739 49 743 22.03.2018 22,066 50 4 02.04.2018 3,24,091 771006991523 51 16 04.04.2018 3990 52 10 03.04.2018 89,303 721007082917 53 12 04.04.2018 124,425 701007143445 54 34 09.04.2018 1,72,410 711007645283 55 51 13.04.2018 44494 56 53 13.04.2018 1,54,820 781008084374 57 56 16.04.2018 2,77,064 731008276174 58 59 16.04.2018 98700 731008316397 59 66 19.04.2018 96,320 781008577902 60 68 19.04.2018 1,25,915 741008590556 61 76 20.04.2018 1,32,711 62 83 21.04.2018 1,37,3406 63 90 24.04.2018 1,18,929 64 108 27.04.2018 20,957 65 120 30.04.2018 1,19,627 66 127 02.05.2018 36,848 67 131 02.05.2018 1,44,900 68 133 02.05.2018 1,91,363 69 137 03.05.2018 2,43,488 70 139 03.05.2018 1,92,150 71 142 04.05.2018 55,272 signed 72 147 05.05.2018 1,41,851 MUKESH Digitally by MUKESH KUMAR KUMAR GUPTA Date: 2024.11.23 GUPTA 02:57:13 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 5 of 35 73 151 07.05.2018 9,93,794 74 154 07.05.2018 3,08,660 75 169 10.05.2018 36064 76 173 11.05.2018 105033 77 182 14.05.2018 3871 78 198 21.05.2018 1,16,720 79 205 22.05.2018 71,522 80 232 29.05.2018 44,800 81 270 15.06.2018 1,06,969 82 271 15.06.2018 4,59,614 83 275 16.06.2018 28,455 84 277 18.06.2018 92,232 85 281 20.06.2018 3,59,087 86 301 25.06.2018 3,59,087 87 318 30.06.2018 1,23,390 88 337 05.07.2018 44,520 89 352 09.07.2018 35,339 90 376 14.07.2018 13,703 91 388 18.07.2018 2,92,617 92 393 19.07.2018 43,680 93 423 30.07.2018 29,568 94 432 31.07.2018 73,892 95 470 18.08.2018 2,45,285 96 479 13.08.2018 99,750 97 526 23.08.2018 99,750 98 582 05.09.2018 1,42,998 99 595 08.09.2018 1,73,359 100 600 10.09.2018 39,200 101 607 11.09.2018 39,200 102 613 12.09.2018 35,438 Digitally signed by 103 621 13.09.2018 54,164 MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.11.23 02:57:32 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 6 of 35 104 691 27.09.2018 1,36,282 105 693 27.09.2018 1,77,781 106 709 29.09.2018 1,48,410 107 719 01.10.2018 29,198 108 732 04.10.2018 1,87,894 109 737 05.10.2018 1,32,906 110 746 06.10.2018 81,774 111 751 08.10.2018 119700 112 761 09.10.2018 99960 113 766 09.10.2018 1,82,083 114 776 10.10.2018 286650 115 780 11.10.2018 1,48,176 116 786 11.10.2018 204036 117 796 12.10.2018 77459 118 798 12.10.2018 91,655 119 812 15.10.2018 1,43,325 120 823 16.10.2018 89,578 121 828 17.10.2018 15,8760 122 852 22.10.2018 202639 123 866 24.10.2018 91,963 124 872 25.10.2018 138880 125 888 29.10.2018 468823 126 898 30.10.2018 5,750 127 966 17.11.2018 71,820 128 970 19.11.2018 457901 129 974 20.11.2018 126000 130 1034 11.12.2018 256431 131 1046 15.12.2018 58800 132 1047 15.12.2018 276975 133 1064 19.10.2018 39984 Digitally signed 134 1084 22.10.2018 24569 MUKESH by MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2024.11.23 02:57:40 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 7 of 35 135 1146 05.01.2019 57680 136 1171 10.01.2019 84126 137 1228 22.01.2019 26761 138 1279 02.02.2019 205538 139 1349 20.02.2019 271616 140 1363 21.02.2019 234360 141 1370 22.02.2019 68585 142 1392 26.02.2019 325500 143 1411 28.02.2019 126873 144 1446 07.03.2019 120736 145 1447 07.03.2019 49896 146 1473 11.03.2019 236250 147 14 04.04.2019 2204 148 94 26.04.2019 8403 149 130 04.05.2019 37738 150 148 08.05.2019 101133 151 170 14.05.2019 85,355 152 185 16.05.2019 171161 153 193 18.05.2019 45203 154 200 22.05.2019 73080 155 209 24.05.2019 29946 156 212 25.05.2019 85456.67 157 258 12.06.2019 92,800 158 265 13.06.2019 94,632 159 305 24.06.2019 12936 160 314 26.06.2019 80818 2.3) It is further the case of the plaintiff that plaintiff time & again requested the defendant to make the payment of the aforementioned invoices, however, the defendant always gave evasive Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2024.11.23
02:57:56 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 8 of 35
replies and avoided to make the payment of invoices on one pretext or the other and had even failed to pay the interest on the total amount of invoices. The plaintiff through its representative approached the defendant at its office and demanded the outstanding amount of the invoices but the defendant despite the assurance failed to the pay the outstanding amount of the invoices which comes to Rs. 70,03,712.47ps.
It has been further averred that on persistent requests of the plaintiff, the defendant confirmed the amount and assured the plaintiff that the payment shall be cleared by the end of February, 2021 but the defendant failed to repay the amount even after expiry of aforementioned period.
2.4) It has been further averred in the plaint that the cause of action against the defendant firstly arose when the defendant contacted the plaintiff at its registered office at Delhi for consignments where the terms and conditions were discussed and settled between the plaintiff and defendant before commencement of business. It further arose when the consignments were duly delivered to the defendant by the plaintiff and the invoices/bills were raised for the same. The cause of action as averred by the plaintiff finally arose when the defendant confirmed the payment of the invoices and assurance being made by the defendant that the balance payment shall be made at the earliest. Hence, the present suit for recovery of Rs.70,03,712.47ps alongwith interest @24% pendentlite and future till its actual realization with costs of the suit.
Digitally signedMUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 02:58:16 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 9 of 35 (C) CASE OF THE DEFENDANT:-
3. On receipt of summons for settlement of issues, the defendant contested the suit by filing a detailed Written Statement thereby taking various following preliminary objections:-
3.1) The suit filed by the plaintiff against the defendant is sans merit in its entirety, the plaintiff has not approached the court with clean hands, the present suit has not been filed in accordance with the Commercial Courts Act, 2015 and finally the court at Delhi has no jurisdiction to entertain the present suit as the defendant is resident of District Darbanga, Bihar and food grains and dry fruits were also delivered in Darbanga of Bihar.
3.2) It has further been contended that plaintiff had good business terms with the defendant and the plaintiff supplied the dry fruits to the defendant from time to time and collected the payment from the defendant simultaneously with the supply of goods, however, with the passage of time, plaintiff started supplying inferior quality goods to the defendant due to which defendant incurred business losses and loss of market reputation.
3.3) The plaintiff has filed the present suit on the basis of the unsigned, nor countersigned and inadmissible tax invoices and ledger account, therefore, the suit is nothing but the counter-blast as due to the inferior quality of goods supplied by the plaintiff, the defendant had to MUKESH by Digitally signed MUKESH KUMAR cut the business transaction with the plaintiff.
KUMAR GUPTA GUPTA Date:
2024.11.23 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 10 of 35 02:58:25 -0800 3.4) On merits, all the allegations made in the plaint are denied as incorrect and it has been denied that the plaintiff has filed a valid power of Attorney as the same does not bear the signatures of two witnesses as mandate under the law. It has also been denied that the defendant has approached the office of the plaintiff at Delhi and it was agreed between the parties that the defendant will pay the amount within one week from the date of the bills/invoices. However, it has been admitted that the plaintiff is the trader of the dry fruits and defendant is the proprietor of M/s Ganpati Trader. It has also been admitted that the plaintiff and defendant started the business after the settlement of terms and conditions. It has also been denied that merely part payment was made to the plaintiff by the defendant, rather the plaintiff has received the entire payment as and when the delivery of the goods were done to the defendant. It has also been denied that any payment of interest was agreed between the plaintiff and the defendant. It has also been denied that the outstanding amount of Rs.70,03,712.47ps is unpaid by the defendant. It has also been prayed by the defendant that the suit of the plaintiff be dismissed with costs.
4. The Plaintiff has not preferred any replication to the Written Statement filed by the defendant.
(D) CRYSTALISING THE DISPUTE :-
5. On the pleadings of the parties and documents placed on record and after perusing the affidavit of admission denial of the parties, the Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 11 of 35 02:58:33 -0800 following issues were framed for adjudication vide order dated 05.02.2024.
ISSUES.
(i) Whether this court does not have the territorial jurisdiction to entertain and decide the suit?
OPD
(ii) Whether the plaint has not been signed and verified by duly authorized person? OPD
(iii) Whether the plaintiff is entitled to recover the suit amount of Rs.70,03,712.47ps from the defendant? OPP
(iv) Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
(v) Relief.
(E) EVIDENCE OF PLAINTIFF.
6. Plaintiff, in support of her case, got examined her husband and SPA Shri Vimal Narang as PW1. Apart from him, the plaintiff also got examined another witness Mr. Gaurav Divakar, her Accountant as PW2.
7. PW1 Mr. Vimal Narang the SPA of the plaintiff has reiterated the contents of the plaint on oath in his affidavit Ex.PW1/A. He got exhibited his Special Power of Attorney dated 15.03.2021 executed by the plaintiff in his favour as Ex.PW1/1, Bills/Invoices as well as tax payments as Ex.PW1/2 (colly) 159 invoices and E-way bills and GST payment. He Digitally signed has also got exhibited the Statement of Account for the period 01.04.2017 MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 02:58:45 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 12 of 35 till 31.03.2020 and Certificate u/s 65-B of Indian Evidence Act, Ex.PW1/3 and 4 respectively.
8. The witness was subjected to the cross-examination by the Ld. Counsel for the defendant on the point of genuineness of SPA and the invoices. During his cross-examination, the witness has deposed that his wife, the plaintiff herein had signed the SPA prior to him in his presence. The witness further deposed that the stamp paper was purchased on 02.03.2021 and he did not know the date on which the over-writing on the SPA was done. He also showed ignorance for placing on record any proprietorship document with respect to the proprietorship firm M/s A.V. Impex. He has admitted that the rate of interest of 24% per annum as claimed by him is not mentioned on any of the invoices. He has deposed to have started the business transaction with the defendant somewhere in May/June, 2017, and visited the place of business of defendant on two occasions. He has denied the suggestion that the defendant never visited the plaintiff's place of business. He has denied the suggestion that there has never been any settlement of terms and conditions with the defendant. He has further deposed that the goods mentioned on the invoices were sent by train or through road transport services and some of the invoices do not have e-way bills voluntarily adding that the VAT/CST was applicable at that time. He has further deposed that there is no acknowledgment of receipt by the defendant on any of the invoices, however but stating that the defendant has been making part payment for the goods received. He has deposed that he never had any cash MUKESH by Digitally signed MUKESH KUMAR transactions with the defendant and the defendant had made payment in KUMAR GUPTA GUPTA Date:
2024.11.23 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 13 of 35 02:58:53 -0800 the bank account of A.V. Impex. He has further deposed that he had sent e-mails to the defendant regarding the unpaid invoices, but has not placed the said e-mails on record or any acknowledgment or communication with the defendant with respect to due amount. He has further deposed that he has continued his transactions with the defendant despite there being an outstanding amount of Rs.70,00,000/- approximately, as the defendant was making part payment on regular basis. He has further deposed that he has sent ledgers to the defendant after 26.06.2019 i.e. at the time of closing of the financial year i.e. in March, 2020 and thereafter, in March, 2021 for balance confirmation but has not filed any copy of such communication with the defendant on court record.
9. Shri Gaurav Divakar, the Accountant of the plaintiff was examined as PW2. He has deposed that the statement of account already exhibited as Ex. PW1/3, filed by the plaintiff alongwith the suit has been prepared by him and he is well conversant with all transactions as per the Statement of Account and Invoices. During cross-examination, PW2 has deposed that the Statement of Account filed with the plaint is for the period 2017-18 till filing of the case and he has made the entries in the statement on the directions of Mr. Vimal Narang and after cross-
checking from the balance sheet.
10. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed by the court, at the request of Ld. Counsel for Digitally signed plaintiff on 06.03.2024.
MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 02:58:59 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 14 of 35 (F) DEFENDANT'S EVIDENCE :-
11. The defendant in his defence has examined himself as DW1 but did not file any document or exhibit the same.
12. DW1 in his deposition by way of affidavit Ex.DW1/A reiterated the contents of its Written Statement on oath more particularly on the Special Power of Attorney of the plaintiff dated 15.05.2021, the goods being supplied at District Dharbanga in the State of Bihar challenging the territorial jurisdiction of the court, the supply of inferior goods by the plaintiff at a later stage and the entire payments being made against each supply besides calling the invoice relied upon by the plaintiff as false and fabricated documents. He was subjected to cross-examination at length by Ld. Counsel for the plaintiff, during which, he has deposed regarding his knowledge about the Section 12-A of the Commercial Courts Act, which provides for the pre-filing mediation. On payments, he has deposed that the agents of the plaintiff namely Mr. Bittoo and Mr. Mahesh used to collect the amount from his Darbhanga Shop in Cash as per invoices and he used to pay the same bill-wise. He has deposed that he has no Statement of Account or ledger for the same as the payments were made as per invoices and there is no requirement to maintain ledger for the payment. He has admitted that all the invoices were raised by the plaintiff from Delhi Office and also admitted that some payments were made by him through bank transactions which was to the tune of Rs.99 lacs approximately but denied the suggestion that he has made only payment of Rs. 27 lakhs, voluntaring that he has paid the entire payment. He has deposed that he has never sent any letter or information in writing Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 02:59:07 -0800 CS (Comm.) No.1755/2021 2024.11.23 Hetu Narang vs. Mohit Karak. Page no. 15 of 35 to the plaintiff regarding the inferior quality of goods and sometime he returned the inferior quality material to the plaintiff firm but has deposed that he has never raised any invoice/credit note or debit note for the material which was returned to the plaintiff. He has voluntarily deposed that since the transactions was invoice to invoice, therefore, the amount of the returned material was deducted from the next invoices. He has admitted that he has a GST number and is also taking the benefit of GST amount upon the invoices raised by the plaintiff firm. However, the benefit of GST was never returned by him to the GST Department upon the material which was returned to the plaintiff firm. He has finally admitted that he has not filed any proof of payment being made in cash to the plaintiff or its agents.
13. No other witness was examined by the defendant and the evidence of the defendant was closed vide statement dated 18.09.2024.
(G) ARGUMENTS ADDRESSED:-
ARGUMENTS OF PLAINTIFF.
14. Ld. Counsel for the plaintiff Mr. Vijay Sehgal has vehemently argued that the transactions for supply of foods grains and dry fruits to the defendant is not in dispute and is well covered by the 160 invoices raised by the plaintiff against each supply between the period 19.06.2017 and 26.06.2019. It has been stated that the supply of goods to the Digitally signed plaintiff was complete as the relationship between the plaintiff and the MUKESH by MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.11.23 02:59:39 -0800 defendant for aforesaid supply is also not in dispute, and as such, the CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 16 of 35 defendant used to make on account payments from time to time which was duly reflected in the statement of Account Ex.PW1/3 and all the payments were made by the defendant through bank transfers from HDFC Bank leaving an outstanding balance of Rs. 70,03,712.47ps which is duly reflected in the Statement of Account maintained by the plaintiff in the regular course of its business and the defendant was required to ;pay for the goods supplied by the plaintiff which he has failed to do so despite request made by the plaintiff and the indulgence granted by the plaintiff on account of good business relations and as such, suit is liable to be decreed not only with interest but also with exemplary costs.
15. On the point of validity of Special Power of Attorney of the plaintiff, Ld. counsel has vehemently argued that Mr. Vimal Narang is not only competent to prosecute the present matter by virtue of Special Power of Attorney executed by his wife, the plaintiff herein but also on account of the fact that he was well aware about the day to day conduct of the business of the plaintiff and the transactions between the plaintiff and the defendant which are subject matter of the suit. He further argued that the date i.e. 02.02.2021 mentioned in the SPA is a typographical error and the stamp paper was purchased on 02.03.2021 with its attestation on 15.03.2021. Ld. Counsel for the plaintiff has further argued that the over-writing as alleged by the defendant to impeach the validity of the document was got done prior to the attestation and was in the knowledge of the executant, which were initialed by both the executant and attorney. He further argued that the plaintiff has duly MUKESH by Digitally signed MUKESH KUMAR GUPTA proved the aforesaid SPA through the testimony of PW1 Vimal Narang KUMAR Date:
GUPTA 2024.11.23 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 17 of 35 02:59:47 -0800 and it was for the defendant to rebut and proved the same by leading cogent evidence including calling the Notary Public in the witness box which has not been done by the defendant.
16. On the aspect of jurisdiction, Ld. Counsel for the plaintiff has argued that the defendant has approached the plaintiff at his registered office situated at Khari Baoli in Delhi where the defendant has shown his willingness or interest to start the business and after which a detailed discussion and settlement regarding the terms and conditions have taken place at Delhi only. He further argued that all the goods were supplied to the defendant from Delhi and even the part payments from the defendant through bank transfer were also received in Delhi, thereby creating part cause of action in Delhi. He has further argued that the plaintiff has filed on record the tax invoices giving reference to e-way bills showing delivery of goods to the defendant from registered office of plaintiff situated at Khari Baoli, Delhi, which also mentions the name of the transporters. Ld. Counsel for the plaintiff has further argued that even during cross examination, the defendant has admitted that the goods were supplied from Delhi and and even the invoices were raised by the plaintiff from the Delhi office. He has further argued that the plea of defendant of making of entire payment or supplying of inferior quality of goods is merely a bald defence which has not been proved by the defendant and as such the plaintiff is entitled to recovery of suit amount with interest and costs.
Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date: GUPTA 2024.11.23 02:59:55 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 18 of 35 ARGUMENTS OF DEFENDANT:
17. Ld. Counsel Shri Sagar Jaiswal for the defendant has stated that though the supply was made by the plaintiff to the defendant but the defendant has already made the entire payment against each supply in as much as the payments for the supplies were made by the defendant bill/ invoice wise and not on account and the payments used to collect by the plaintiff through its agents from Bihar itself at the time of its supply and as such nothing is outstanding against the defendant and it is rather the plaintiff who has turned dishonest after supplying inferior quality of goods to the defendant. While challening the validity of SPA of the plaintiff executed in favour of her husband Shri Vimal Narang, the same was not signed and verified by duly authorized person. He has further argued that the stamp paper in respect of SPA was purchased on 02.03.2021 whereas the said document got signed by the executant, attorney and the witness on 02.02.2021 whereafter which the said document got attested on 15.03.2021, which clearly refects the discrepancies in the said document and as such the said document is void in the eyes of law. He has further argued that though, the suit can be filed by a SPA holder but the validity of the said SPA is required to be proved as per the provisions laid under the law.
18. On the point of territorial jurisdiction, Ld. Counsel for the defendant has argued that the defendant's firm is situated in District Darbhanga, Bihar and moreover, the goods were delivered from Delhi to Bihar. He has further argued that the defendant in his cross examination has deposed that the plaintiff as well as her agent namely Bittoo & Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 03:00:03 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 19 of 35 Mahesh used to visit the place of defendant to collect the cash payments from shop of defendant situated at Bihar and the defendant had never visited the place of plaintiff. Hence, no cause of action, or part thereof has arisen within the jurisdiction of this court. He has finally prayed that the suit is liable to be dismissed with exemplary costs.
(H) ANALYSIS & DETERMINATION:-
19. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record and have duly considered the same. My issues-wise determination are as under:-
ISSUES No.1 : "Whether this court does not have the territorial jurisdiction to entertain and decide the suit ? OPD"
20. The onus to prove this issue was held upon the defendant who has taken a preliminary objection in the Written Statement that the suit is liable to be dismissed on account of lack of territorial jurisdiction as the defendant is a resident of Darbangha (Bihar) and goods were also supplied in Bihar and as such the cause of action has arisen in Bihar. In order to prove the same the defendant (DW1) deposed by way of affidavit Ex.DW1/A that he resides at Darbangha, Bihar and the plaintiff had approached him on the aforesaid address on multiple occasions.
Moreover, the agents of the plaintiff namely Bittoo and Mahesh used to collect the amount in cash from him as per the invoices from his Darbhanga Shop at the time of delivery of the material. Besides this, the defendant used to pay the amount bill-wise, however, defendant has Digitally signed failed to file any statement of account/ledger for the same. The by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
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defendant during his cross-examination has admitted that the plaintiff had sent the material to the Defendant as per invoices from Delhi and also from other places, for which the plaintiff had raised invoices from Delhi Office.
21. The defendant has also admitted during cross-examination that some payments were made by him through bank transaction and some payment were received to the plaintiff at Delhi Office, which shows that part payments were also made and received at Delhi only. There are certain invoices (part of Ex.PW1/2) which also mentions e-way bill numbers reflected that the material was supplied from Delhi to Bihar and the payments have been received at Delhi. Ld. Counsel for plaintiff additionally has argued during the course of arguments that this is a case where the principle of debtor much seek the creditor applies relying upon the pronouncement of law laid down by our own Hon'ble High Court in Transasia Private Capital Limited and Anr. V. Parmanand Agarwal & Ors. 2022 SCC Online Del. 1185, Shardha Wassan & Ors. V Anil Goel and Anr. 2009 SCC Online Del 1285 TKW Management Solutions Pvt. Ltd. V. Sherif Cargo & Anr. (2023) SCC Online Del.
593.22. On detailed consideration, it may be seen that the present case is based on the outstanding amount in respect of 160 invoices Ex.PW1/2 (colly) and the part payment from the defendant has been received in Delhi as reflected in Statement of Account Ex.PW1/3. The defendant in Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
his cross-examination has admitted that the goods were sent to him from GUPTA 2024.11.23 03:00:20 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 21 of 35 Delhi and payments were received at Delhi and the invoices were also raised at Delhi. The defendant has not refuted the same by filing his counter Statement of Account/ledger and the GST benefit not returned to the plaintiff.
23. In terms of section 20 of CPC, Courts at Delhi has jurisdiction to entertain and try the instant suit alongwith the jurisdiction at the place where the deliveries were made and even the works for gains in Delhi. The defendant in the Written Statement has stated that orders were received by him from the plaintiff who resides at Delhi and also mentioned that the defendant has made payments to the plaintiff from time to time, though surreptitiously holding to specify where such payments were received. The defendant has not filed any counter Statement of account/ledger to show that he has made the entire payments to the plaintiff in respect of the invoices raised by the plaintiff or their agents and nothing is due against him. In the absence thereof and as per section 106 of Indian Evidence Act, an adverse inference can also be drawn against the defendant. It is not the case that the defendant has shown on record that the payments were made by the defendant but received by the plaintiff at some other place except its principle office at Delhi.
24. The Hon'ble Delhi High Court in Sharda Wassan (supra) while referring to a number of judgments has clearly laid down that when the payments are to be made at Delhi, a part of cause of action arises where Digitally signed money is expressly or impliedly payable under a contract, relying upon MUKESH by MUKESH KUMAR GUPTA KUMAR Date: CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 22 of 35 GUPTA 2024.11.23 03:00:28 -0800 the pronouncement of law laid down by Hon'ble Supreme Court in A.B.C Laminart Pvt. Ltd. Vs. A.P. Agencies, (1989), 2 SCC 163 . The court has even laid down that if a demand has been made from Delhi for the payment, preceding the suit, the principle of debtor must seek the creditor applies with the exception of a promissory notes. Hon'ble High Court has while dealing with the leave to defend application u/o XXXVII CPC has gone to the extent of laying down the applicability of doctrine unless a clear case of ouster of jurisdiction is made out. The law laid down by Hon'ble High Court was succinctly followed in TKW Management (supra) and Transasia Pvt. Ltd. (supra) by our own Hon'ble High Court citing similar factual matrix where payments were received in Delhi.
25. When the documentary as well as oral evidence is appreciated, it may be seen that not only the part payments made by the defendant through bank transfers as reflected in Ex.PW1/3 have been received by the plaintiff at Delhi but also the material was supplied by the plaintiff to the defendant from Delhi to Bihar. The invoices Ex.PW1/2 have also been issued from Delhi and the principal office of the plaintiff is also situated in Delhi within the jurisdiction of this court. The said facts have also been admitted by the defendant during the course of his cross- examination as DW1. Thus, relying upon the settled law as discussed above, the principle of debtor must seek the creditor clearly applies to the facts of the present case as part cause of action has arisen in Delhi. Accordingly, taken on the yardstick of preponderance of probabilities and MUKESH Digitally by MUKESH on the basis of the aforesaid discussion, the defendant has failed to prove signed KUMAR KUMAR GUPTA GUPTA Date: 2024.11.23 03:00:37 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 23 of 35 the instant issue while the plaintiff has been able to successfully rebut his contention by establishing the jurisdiction of courts at Delhi.
26. The issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE No.2 : "Whether the plaint has not been signed and verified by duly authorized person ?
OPD"
27. The onus to prove this issue was held upon the defendant, who has taken a preliminary objection in the Written Statement that the present suit is neither signed nor verified by the plaintiff rather the suit is signed by the person namely Shri Vimal Narang claiming himself to be the SPA holder to act on behalf of the plaintiff vide Special Power of Attorney dated 15.03.2021, although the said document does not bear the signature of two witnesses as mandated under the law.
28. 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/authorized 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 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 Digitally signed MUKESH KUMAR by MUKESH KUMAR GUPTA Date:
affidavit is required to be furnished in support of the pleadings. In the GUPTA 2024.11.23 03:00:45 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 24 of 35 instant case, there is a verification at the foot of the plaint by one Shri Vimal Narang, the husband of the plaintiff who is stated to be the Special Power of Attorney Holder of the plaintiff and duly authorized him vide the Special Power of Attorney dated 15.03.2021 Ex. PW1/1 of the plaintiff, verifying the contents of the suit to be true and correct to the knowledge without any concealment of material facts, though technically speaking the same has not been in strict compliance of the provisions 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 duly 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 Vimal Narang, the Special Power of Attorney of the plaintiff is clear and categoric and serves the basic purpose of verification, despite the fact that the same is technically not 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 Gupta Vs. Bhakti Hari Nayak.
29. Ld. Counsel for defendant has argued that Special Power of Attorney is the husband of plaintiff. He has further argued that stamp Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 03:00:54 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 25 of 35 paper for attorney was purchased on 02.03.2021, however, the parties have executed the Power of Attorney Ex.PW1/1 on 02.02.2021 and the same was attested on 15.03.2021. He has further argued that in the cross- examination, PW1 Shri Vimal Narang has admitted that the stamp paper for the SPA was purchased on 02.03.2021 and there is a gap between the signing of the document and handing over the same to his advocate, therefore the dates may be different.
30. Per Contra, Ld. Counsel for plaintiff Shri Sehgal has argued that the date 02.02.2021 mentioned on Special Power of Attorney Ex.PW1/1 is a typographical error. The Special Power of Attorney Ex.PW1/1 prepared and purchased on 02.03.2021, however, the attestation took placed on 15.03.2021. Ld. Counsel for the plaintiff has further clarified that the overwriting was done before attestation of Ex.PW1/1 and the same was in the knowledge of executant Ms. Hetu Narang as also the attorney Vimal Narang.
31. It is settled proposition of law that if a power of Attorney is executed and authenticated by a notary public or other officer as mentioned in Section 85 of the Evidence At, the court is bound to presume that the power of attorney was so executed and authenticated. Section 85 of the Indian Evidence Act reads as Under:
"85 Presumption as to power of attorney- the court shall presume that very document purporting to be a power of attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Indian MUKESH by Digitally signed MUKESH KUMAR GUPTA Consul or Vice-Consul, or representative of the Central KUMAR Date:
GUPTA 2024.11.23 Government, was so executed and authenticated 03:01:02 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 26 of 35
32. In order to raise the presumption, the following conditions must be satisfied.
(i) That the SPA was executed before a Notary Public and
(ii) it was authenticated by the Notary Public
33. The Hon'ble High Court of Delhi in the case of Electric Construction Vs. Jagjit Electric Work AIR 1984, Delhi 363 while dealing with the issue of presumption under Section 85 of Evidence Act held as under:-
"......However, it does not state that it was executed before a Notary Public and nor does it bear any authentication by a Notary Public regarding the manner of execution, etc. It is, therefore, very essential to stress the two ingredients which are contained in Section 85 of the Evidence viz. Execution before the Notary Public and the authentication by the Notary Public".
34. In the present case, the execution of the Special Power of Attorney Ex.PW1/1 before the Notary Public is not in dispute specifically. As the burden to prove that the Special Power of Attorney is not authenticated is upon the defendant and the defendant is required to examine the Notary Public in the witness Box to this effect. It has also not been disputed that there is a gap between the purchase of the stamp paper and the attestation of the document Ex.PW1/1. Ld. Counsel for the defendant has only disputed two facts, one is the date 02.02.2021 i.e. the execution of the document and the other is the document is witnessed by only one witness. In so far as the date 02.02.2021 is concerned, the Digitally same is clarified to be a typographical error as when the stamp paper was signed by MUKESH MUKESH purchased on 02.03.2021 then there is no question to execute the KUMAR KUMAR GUPTA GUPTA Date:
2024.11.23 03:01:17 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 27 of 35 document prior to purchase of the stamp paper on 02.02.2021. Therefore, the plea of the defendant in this regard is not tenable. Reliance placed on the judgment of Hon'ble Delhi High Court in FAO (OS) 355/2008 Jagdish Prasad V. State, decided on 03.03.2015.
35. Now the second dispute is that the document Ex.PW1/1 is witnessed with only one witness and as per law there is requirement of two witnesses. In this regard, Ld. Counsel for the defendant has not filed any law or authority to show that the document is required to be witnessed by two witnesses. PW1 got proved the Special Power of Attorney in his testimony as PW1/1, but the defendant has failed to discharge his onus as he neither called any witness nor the Notary Public who attested the said document to disprove the same. It is a settled principle of law that a power of attorney holder can appear, plead and act on behalf of a party in all the proceedings in any court of civil jurisdiction. Relevant statutory provisions are Order VI Rule 14, Order III Rules 1 and 2 of the Code of Civil Procedure, 1908. Order VI Rule 14 of CPC reads thus:
"14. Pleadings to be signed.-- Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him or her to sign the same or to sue or defend on his or her behalf." Reliance placed on Sethi P.V. Aged 43 Years V. Nil decided by the Hon'ble High Court of Kerala on 26.02.2021.
36. Thus, the suit is held to be a valid suit and the consequences do Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.11.23 03:01:25 -0800 not go to the roots or merits of the plaint. Thus, on the basis of aforesaid CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 28 of 35 discussion and taken on the yardstick of preponderance of probabilities, this issue is decided, accordingly against the defendant and in favour of the plaintiff.
ISSUE No.3: "Whether the plaintiff is entitled to recover the suit amount of Rs.70,03,712.47ps from the defendant? OPP ?OPP"
37. 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 (dry fruits and grains) 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 31.03.2020 shows an outstanding balance of Rs.70,03,712.47ps which the plaintiff has claimed in the instant suit with interest and costs.
38. At the outset, the court shall take up the issue of limitation which is a legal issue, which the court is required to determine for the purpose of deciding the entitlement of plaintiff to the relief claimed. As per Section 3 of the Limitation Act, 1963, any suit, application or appeal has to be filed within the period of limitation as prescribed under the schedule Digitally signed by annexed to the Limitation Act and subject to provisions contained in MUKESH MUKESH KUMAR KUMAR GUPTA Date:
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Section 4 to 24. This has to be done irrespective of the fact whether limitation has been set up as a defence or not. It is a settled proposition of law that law of limitation is a law of repose, peace and justice which bars the remedy after the lapse of particular period by a public policy and expediency. Reliance is placed on AIR 1991 Kerala 83 Craft Centre V. Koncherry Coir Factories. As per Article 1 of the Schedule annexed to the Limitation Act, 1963 the period of Limitation is 3 years from the close of the year in which the last item is admitted or proved and entered in such account. The amount of invoices have been corroborated with the statement of accounts which shows the credit and the debit entries of the amount in respect of the invoices raised against the supply of goods to the defendant. It may be seen that the present suit is for recovery of amount outstanding against the defendant for the invoices/bills raised by the plaintiff company against the defendant in respect of the supply of the food grains and dry fruits. The case of the plaintiff is based on invoices/bills Ex. PW1/2 (colly) raised during the period 19.06.2017 to 26.09.2019 pursuance to the supply of food grains/dry fruits by the plaintiff to the defendant and statement of accounts/ledger Ex. PW1/3 (Colly) for the period 01.04.2017 uptil 31.03.2020. The statement of account contains the entries of the credits and debits of the payments/ transactions taken place between the plaintiff and the defendant, had a mutual and running account for which the plaintiff has raised 160 invoices. The first invoice raised by the plaintiff upon the defendant is of dated 19.06.2017 and the last invoice is of dated 26.09.2019. The present suit has been filed by the plaintiff on 11.06.2021. It would be relevant to MUKESH by Digitally signed MUKESH mention here that on account of covid- 19 pandemic situation a period KUMAR GUPTA KUMAR Date: CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 30 of 35 GUPTA 2024.11.23 03:01:40 -0800 from 15.03.2020 to 28.02.2022 is required to be excluded from the period of limitation in terms of the judgment passed by the Hon'ble Supreme Court of India in SMWP(C) No. 3/2020 In re: Cognizance for Extension of Limitation dated 10.01.2022. In its recent judgment Babasaheb Raosaheb Kobarne & Anr. V. Pyrotek India Private Limited & Ors, in SLP No. 2522/2022 vide pronouncement dated 09.05.2022 the Hon'ble Supreme Court of India has held that:
'......the period from 15.03.2020 till 28.02.2022 shall have to be excluded from the purposes of limitation.........the said order shall also be applicable with respect to the limitation period prescribed under the Commercial Courts Act, 2015 also...' Hence, applying the ratio of the aforementioned judgment and as per Article 1 of the Limitation Act, the present suit having been filed on 11.06.2021 is well within the period of limitation.
39. The relief of the plaintiff is based upon the 160 tax invoices/bills and E-way bills and GST Payment Ex.PW1/2 (colly). The Statement of Account Ex.PW1/3 is maintained by the plaintiff in the course of its normal business and shows a number of payment being made by the defendant to the plaintiff subsequent to the aforesaid supplies.
Incidentally, the payments made by the plaintiff are not invoice-wise but on-account, lump-sum payments from time to time. The Statement of Account has been duly proved by the testimony of PW1 Shri Vimal Narang who has also filed a certificate u/s 65-B of the Indian Evidence Act Ex.PW1/4 to prove its authenticity. Thus, there has been open and mutual demand between the parties which shows that there were Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 03:01:49 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 31 of 35 commercial transactions between the plaintiff and the defendant. The testimony of PW1 in respect of bills and E-way Bills Ex.PW1/2 (colly) are clear and cogent. The Statement of Account Ex.PW1/3 is duly certified with Certificate under Section 65-B of the Evidence Act, Ex.PW1/4 is clearly proved showing an outstanding amount of Rs.70,03,712.47ps as on 31.03.2020. The invoices have not been disputed by the defendant and the defendant has failed to file any counter Statement of Account/ledger maintaining the account of the plaintiff in the books of defendant. The testimony of PW1 has remained undented during the cross-examination in respect of these documents. During his cross-examination, DW1 has admitted that the transaction between his firm and the plaintiff firm was of Rs.99 lacs approximately.
40. Defendant has also taken a defence that the goods supplied by the plaintiff were of poor quality and due to which he has suffered substantial business loss and sometime he has returned the inferior quality material to the plaintiff firm. The defendant has not filed any document or to lead any evidence to prove that the goods supplied by the plaintiff were of inferior quality and has ever returned the inferior quality material as alleged to the plaintiff. Surprisingly, the defendant continued to have business with the plaintiff by making part payments even after supply of inferior quality goods to the defendant. Even though, in the cross-
examination. DW1 has deposed that the defendant is having the GST number and he has taken the benefit of the GST amount upon the invoices raised by the plaintiff firm. The benefit of GST was never Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.11.23 returned by him to the plaintiff firm. As such the submissions made by 03:01:57 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 32 of 35 the defendant that he was supplied with inferior quality material hardly holds ground being totally vague and not supported by any cogent evidence. So much so, that the defendant has even failed to file any communication for the goods supplied by the plaintiff being inferior. In the absence thereof, the averments made by the defendant remains nothing but bald assertions.
41. 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.70,03,712.47 ps (rounded of to Rs.70,03,712/-) against the defendant.
42. This issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO.4: "Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ?OPP
43. The onus of proving this issue was also held upon the plaintiff who has claimed an interest @ 24% per annum on the outstanding amount pendentlite and future. Though there is no stipulation of 24% per annum on the invoices Ex.PW1/2(colly). There is nothing on record to suggest that any such stipulation was ever made or proposed between the parties. In the absence of any agreement to show the same, the court MUKESH by Digitally signed MUKESH KUMAR shall be left with no option but to advert to the provisions of section 34 of KUMAR GUPTA CPC and provisions of Interest Act since the amount is outstanding. Date:
GUPTA 2024.11.23 03:02:06 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 33 of 35 However, Hon'ble Supreme court in a number of judgments reported as Pt. Munshi Ram @ Associates (P) Lt. Vs. DDA, 2010 SCC Online Delhi 2444, Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC) has repeatedly mandated that courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. Under the facts and circumstances of the case, keeping in view the nature of transactions of the case and the aforesaid settled law, court is of the considered opinion that interest of justice would be met, if an interest @ 7.5% per annum is granted to the plaintiff on the outstanding amount pendentlite and future from the date of filing of the suit till the date of its realisation. This issue is decided accordingly.
(I) CONCLUSION:-
ISSUE No.5: Relief.
44. 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 Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA recovery against the defendant. The suit of the plaintiff is, accordingly GUPTA Date:
2024.11.23 03:02:17 -0800 CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 34 of 35 decreed against the defendant for a sum of Rs.70,03,712/-. The plaintiff shall be entitled to a simple interest @ 7.5% per annum on such amount pendente-lite and future from the date of institution of the suit till its realization.
45. In the specific facts and circumstances of the case, the plaintiff shall also be entitled to the costs of the suit.
46. Decree sheet be drawn accordingly.
47. File be consigned to record room after due completion.
MUKESH Digitally by MUKESH signed KUMAR KUMAR GUPTA Date: 2024.11.23 GUPTA 03:02:25 -0800 (MUKESH KUMAR GUPTA) DATED 23.11.2024 DJ(Commercial Court)-07/Central/Delhi ANNOUNCED IN THE OPEN COURT.
(PK) CS (Comm.) No.1755/2021 Hetu Narang vs. Mohit Karak. Page no. 35 of 35