Delhi District Court
Ms Kusum Aggarwal vs M/S Adigear International on 20 October, 2018
: 1 :
IN THE COURT OF DR. SUGANDHA AGGARWAL,
ADDL. DISTRICT JUDGE, WEST,TIS HAZARI, DELHI
CIVIL SUIT NO. 608470/16
Ms Kusum Aggarwal, proprietor of
M/s Bandana Overseas
E16/1178, Ist Floor, Khalsa Nagar,
Karol Bagh, Delhi110005 .........Plaintiff
Versus
1.M/s Adigear International A partnership firm Plot no. 150, Sector4, IMT Manesar, Gurgaon, Haryana
2. Ms Anju Khanna
3. Sh. Pran Nath Khanna
4. Sh. Sandeep Khanna
5. Sh. Sanjay Khanna all Partners of M/s Adigear International & All residents of D45, Naraina Vihar, New Delhi110028 ........ Defendants Date of filing the suit : 18.04.2015 Date when reserved for order : 19.09.2018 Date of Order : 20.10.2018 CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 1 of 11 : 2 : J U D G M E N T
1. This judgment shall decide the suit for recovery of sum of Rs. 17,78,320/ Pleadings
2. The facts as averred in the plaint are that the plaintiff is the proprietor of M/s Bandana Overseas and also associated with M/s Shreenath Fabcare. It is further averred that defendant no.2 to 5 approached the plaintiff and her son Mr. Siddharth Aggarwal for supply of synthetic fabrics. It is further averred that defendant no. 2 to 5 are the partners of defendant no.1 and engaged in the business off manufacturing of readymade garments,apparels and home furnishings. Defendants placed purchase order bearing no. 12080042 dated 25.08.2012 in the name of M/s Shreenath Fabcare Pvt. Ltd. It is further averred that accordingly, plaintiff supplied the good from her firm M/s Bandana Overseas vide bill no. TC225 dated 29.08.2012 for sum of Rs. 10,86,158/ and bill no.TC230 dated 22.09.2012 for sum of Rs. 83,790/. It is further averred that as per the terms of agreement the bills amount was to be paid within 30 days after delivery of goods. However, defendants failed to pay the bills amount. Legal notice dated 05.03.2015 was also served upon the defendants. Despite that defendants failed to CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 2 of 11 : 3 : pay the bills amount and therefore plaintiff was constraint to file the present suit.
3. Defendants have filed joint written statement. In the written statement, defendants have admitted that they have placed a purchase order with M/s Shreenath Fabcare Pvt. Ltd. It is also admitted that goods were delivered by M/s Bandana Overseas. It is averred that the goods were accepted by defendants under compulsion. However, same were returned as after verification the goods were found to be of sub standard quality. It is further averred that there is no privity of contract between the parties and therefore, defendants are not liable to pay the suit amount. All other contentions of plaint are specifically denied.
4. Plaintiff has filed replication to the written statement wherein she reaffirms and reasserts the contents of plaint and has denied all the submissions made by defendants.
Issues
5. After completion of the pleadings and from material on record, following issues were framed on 14.10.2015 Issue no. 1. Whether the goods supplied to the defendants were of substandard quality and without any purchase order ? OPD CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 3 of 11 : 4 : Issue no. 2 Whether there is any privity of contract between the plaintiff and the defendant? OPP Issue no. 3: Whether the plaintiff is entitled for recovery of the suit amount as prayed for? OPP Issue no. 4: Whether the plaintiff is entitled for pendentellite and future interest, if yes, at what rate and for what period?
OPP Issue no. 5: Relief.
Plaintiff's Evidence
6. In order to prove her case, plaintiff has examined herself as PW1. She has tendered her affidavit in examinationinchief as Ex. PW1/A wherein she reaffirmed the contents of the plaint on oath. PW1 has relied upon following documents:
(a) Copy of registration certificate of sales tax as Ex. PW1/1 (OSR)
(b) Copy of Email and purchase order as Ex. PW1/2 and Ex. PW1/3
(c) Photocopy of bill dated 29.08.2012 and 22.09.2012 and delivery challan dated 29.08.2012 and 22.09.2012 as Ex. PW1/4 to Ex. PW1/7.
(d) Email dated 17.09.2012 and 21.09.2012 as Ex. PW1/8 and Ex. PW1/9
(e) Copy of legal notice, original speedpost, receipts, POD and returned envelope as Ex. PW1/10 to Ex. PW1/17 (f) Email as Ex. PW1/18 CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 4 of 11 : 5 :
(g) 65B certificate as Ex. PW1/19
(h) VAT confirmation report as Ex. PW1/20 .
7. PW1 was not crossexamined on behalf of defendants despite opportunity and then discharged.
8. Plaintiff also examined her son Mr Siddharth Aggarwal as PW2. He has tendered his affidavit in examinationinchief as Ex. PW2/A wherein he reaffirmed the contents of the plaint on oath. PW2 has relied upon the documents already exhibited as Ex. PW1/8, Ex. PW1/9 and Ex. PW1/18. He was not crossexamined on behalf of defendants despite opportunity and then discharged.
9. Plaintiff also examined Sh S.K Bera, LDC from VAT Department as PW3. He brought the summoned record pertaining to defendant no.1 from July 2012 to June 2013 showing the purchase of goods from Bandana Overseas in the month of August 2012 and in the month of September 2012. . He was also not crossexamined on behalf of defendants despite opportunity and then discharged. No other witness was examined by plaintiff. Thereafter, PE was closed.
Defendant's Evidence CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 5 of 11 : 6 :
10. In order to prove their case, defendants have filed affidavit in evidence of Sh. Sanjay Khanna as DW1 and Sh. Sandeep Khanna as DW2 but both the witnesses have not tendered their affidavit in examinationinchief. After giving several opportunities, DE was closed vide order dated 14.03.2018 as defendants were unable to produce any witness for deposing. The affidavit of DW1 and DW2 cannot be considered as they have not stepped in the witness box for cross examination nor tendered their affidavit. Hence, no evidence was led on behalf of defendants.
Arguments
11. Ld. Counsel for the plaintiff has argued that the defendants have admitted the delivery of goods. It is stated that the testimony of plaintiff witnesses has gone unrebutted and therefore, plaintiff is entitled for decree in her favour. Per contra, ld. Counsel for the defendants has argued that all the Emails placed on record are exchanged between Sh. Siddharth Aggarwal and the defendants. As per Ex. PW1/2, the purchase order was placed with M/s Shreenath Fabcare, therefore, there is no privity of contract between the parties. It is further averred that E mails placed on record cannot be considered as no certificate under section 65B of Indian Evidence Act has been filed.
CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 6 of 11 : 7 : Findings
12. I have considered the rival contentions and have perused the record. My issuewise findings are as follows: Issue no. 1. Whether the goods supplied to the defendants were of substandard quality and without any purchase order ? OPD
13. Onus of proving this issue was upon the defendant. It is averred in the written statement that the goods were delivered. After verification it was found that goods are of substandard quality. In order to prove the said fact, defendant has placed on record office copy of the debit notes. However, defendant did not crossexamine PW1 nor confronted the PW 1 with said debit notes. No other evidence has been adduced by defendant neither any witness has been examined. The debit notes placed on record are not proved as per provisions of law. Hence, there is no evidence on record to show that the goods delivered were of sub standard quality or were delivered without any purchase order. Hence, present issue is decided in favour of plaintiff and against defendant.
Issue no. 2 Whether there is any privity of contract between the plaintiff and the defendant? OPP Issue no. 3: Whether the plaintiff is entitled for recovery of the suit amount as prayed for? OPP CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 7 of 11 : 8 :
14. Onus of proving these issues was upon the plaintiff. As per the case of plaintiff, she entered into an agreement for supply of certain fabric with the defendants. The goods were accordingly supplied and bill bearing number TC225 amounting to Rs. 10,86,158/ and bill bearing number TC230 amounting to Rs. 83,790/ were raised. However, defendant did not pay the outstanding dues. It is stated by the plaintiff that the purchase order was made with M/s Shreenath Fabcare. It is further averred that the plaintiff is associated with M/s Shreenath Fabcare and the sole proprietor of M/s Bandana Overseas. Plaintiff has further averred that the goods were delivered by M/s Bandana Overseas and bills were also raised by M/s Bandana Overseas. It is further stated that goods were duly accepted by the defendants. In order to prove the said averments, plaintiff has examined herself as PW1 and her son as PW2. Both the witnesses have reiterated the said facts on oath in their affidavits Ex. PW1/A and Ex. PW2/A. Neither of the said witness has been crossexamined. Plaintiff has also placed on record the copy of the invoices which are also duly proved by testimony of PW1. The deposition made by PW1 has gone unrebutted as neither PW1 has been crossexamined nor any evidence has been led on behalf of defendants.
15. Defendants have averred that there is no privity of contract between the plaintiff and the defendants as the purchase order was CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 8 of 11 : 9 : placed with M/s Shreenath Fabcare. It is further averred that plaintiff is not associated with M/s Shreenath Fabcare in any manner. However, no evidence to prove the said fact has been placed on record. On the other hand, plaintiff has stated that she is associated with M/s Shreenath Fabcare.
16. As per the case of plaintiff, goods were delivered by her proprietorship concern i.e. M/s Bandana Overseas. The factum of delivery of goods has been admitted by defendants. It is also admitted by defendants that goods were delivered by M/s Bandana Overseas. The relevant invoices raised by M/s Bandana Overseas are also placed on record by plaintiff which are not denied by defendant. It is stated by defendant that they were constrained to accept the goods. However, same were returned after verification due to substandard quality. Though there is no evidence to prove the said averment, even if it is taken that goods were accepted by the defendant under compulsion then also, defendants could have returned the goods stating that the same have been delivered by M/s Bandana Overseas, whereas their contract was with M/s Shreenath Fabcare. However, instead of returning the goods immediately, defendant accepted the same and also conducted their verification. The said fact is admitted by defendants. This conduct shows that the defendants have accepted the delivery of goods from M/s CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 9 of 11 : 10 : Bandana Overseas. Though there is no evidence on record but even if the averments in the written statement are taken to be correct then, it is apparent that defendants intended to use the goods delivered by M/s Bandana Overseas. Same were returned due to substandard quality and not because the purchase order was not placed with M/s Bandana Overseas.
17. In view of the above discussion, it is clear that certain goods were delivered to the defendants and bills in question were raised. Even if it is taken, that there was no purchase agreement with M/s Bandana Overseas then also it stands proved by preponderance of probabilities that goods were accepted by defendants. Plaintiff has further proved by her testimony that the bill amount has not been paid by defendants. Her testimony has gone unrebutted as she has not been crossexamined by defendants. On the other hand, defendants have failed to prove the return of goods due to substandard quality as pleaded in the written statement. Hence, it is established that the plaintiff has delivered goods to the defendants for which the payment is still outstanding. Both the present issues are decided in faouvr of plaintiff and against defendants.
Issue no. 4: Whether the plaintiff is entitled for pendentellite and future interest, if yes, at what rate and for what period?
CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 10 of 11 : 11 : OPP
18. Onus of proving this issue was upon the plaintiff. The plaintiff has prayed for pendentelite and future interest @24% per annum which is exorbitant. In my considered opinion interest @ 12% per annum will serve the ends of justice. Hence, interest @12 % per annum is awarded in favour of plaintiff from the date of filing the suit till realization.
Issue no. 5: Relief.
19. In view of findings on above issues, the suit of plaintiff is decreed. Plaintiff is held entitled for recovery of sum of Rs. 17,78,320/ from the defendants. Plaintiff is also entitled for pendentelite and future interest @ 12 % per annum on the decreetal amount from the date of filing of suit till its realization. Cost of suit is also awarded to plaintiff. Decree sheet be prepared accordingly. File be consigned to record room after completion of necessary formalities. Digitally signed by SUGANDHA SUGANDHA AGGARWAL AGGARWAL Date: 2018.10.22 13:37:45 +0530 Sugandha Aggarwal ADJ/West/Delhi/ 20.10.2018 This judgment contains 11 pages and all pages are duly signed by me. Digitally signed by SUGANDHA SUGANDHA AGGARWAL Sugandha Aggarwal AGGARWAL Date: 2018.10.22 13:37:55 +0530 ADJ/West/Delhi/20.10.2018 Announced in the open court on 20th October, 2018 CS No. 608470/16 Kusum Aggarwal vs M/s Adigear International Page 11 of 11