Delhi District Court
M/S Vijaypower Generators Ltd vs M/S Pee Kay Silent Generators (P) Ltd on 29 November, 2012
IN THE COURT OF MS. NEELAM SINGH, ADJ02 (SOUTH),
SAKET COURTS COMPLEX, NEW DELHI.
CS No. 213/2011
Unique Case ID No. 02403C0980632008
M/s Vijaypower Generators Ltd.
60, Shardhanand Marg,
Delhi110006
(Through its Managing Director Mr. Rajesh Kumar Sharma)
...Plaintiff
Versus
1. M/s Pee Kay Silent Generators (P) Ltd.
81, Tilak Khan, Giri Nagar,
Kalkaji, New Delhi (Through its Director)
2. Shri Pankaj Mittal, Managing Director
M/s Pee Kay Silent Generators (P) Ltd.
81, Tilak Khan, Giri Nagar,
Kalkaji, New Delhi
3. Mrs. Kanika Mittal, Director
M/s Pee Kay Silent Generators (P) Ltd.
81, Tilak Khan, Giri Nagar,
Kalkaji, New Delhi
4. M/s Pee Kay Silent Generators (P) Ltd.
93B, DLF, Industrial Area,
PhaseI, Faridabad (Haryana)
(Through its Directors)
...Defendants
CS No. 213/2011 Page No. 1 of 20
Suit presented on : 06.11.2008
Arguments heard on : 29.11.2012
Judgment pronounced on : 29.11.2012
SUIT FOR RECOVERY OF RS.10,92,204/ ALONG WITH
PENDENTELITE AND FUTURE INITEREST AND COSTS.
J U D G M E N T
1. Vide this judgment, I shall dispose off petition Vide this judgment, I shall dispose off suit for recovery for a sum of Rs. 10,92,204/ along with interest pendentelite and future.
2. It is the case of the plaintiff that plaintiff is a limited company registered under The Companies Act, 1956 having its registered office at 60, Shardhanand Marg, Delhi110006. Plaintiff company is dealing in sale and purchase of Diesel Engine, Alternators etc. and OEM of Ashok Leyland/ELGI Electric and Industries Ltd./Stemford/Kirloskar Electric / Jyoti Ltd. etc. It is submitted that Sh. Rajesh Kumar Sharma is the Managing Director of plaintiff company and is authorized to institute / file the present suit on behalf of plaintiff company.
3. It is submitted that Defendant no. 1 and 4 are limited company having registered office at 81, Tilak Khand, Giri Nagar, Kalkaji, New Delhi and also at 93B, DLF Industrial Area, PhaseI, Faridabad (Haryana) and defendant no. 2 and 3 are Directors of defendant CS No. 213/2011 Page No. 2 of 20 company.
4. It is further submitted that plaintiff company vide letters dated 08.02.2007, 03.03.2007 & 17.04.2007 called upon defendants to pay an amount of Rs.6,93,500/ as outstanding due along with interest @18% p.a. thereon. Letter dated 08.02.2007 was received back with postal remarks 'refused', however, letter dated 03.03.2007 was duly served upon defendant no. 1. Letter dated 17.04.2007 was also served upon defendants. In letter dated 17.04.2007, plaintiff requested defendants to make payment of Rs.6,93.500/ along with interest @18% p.a. from due dates and also requested to issue Form'C' which is due from defendants.
5. It is further submitted that plaintiff company also sent a demand notice dated 22.06.2007 to the defendants for making payment of Rs. 6,93,500/ with interest @18% p.a. and to send Form 'C' which is due from defendants. It is further submitted that notice dated 22.06.2007 was duly served upon defendant no. 1, 2 & 3 and the AD card was duly signed on 25.06.2007 by defendants' person; but said notice was not served upon defendant no. 4 and was received back with postal remarks 'refused'.
6. It is further submitted that defendant purchased some material relating to Diesel Engine, Alternators etc. from plaintiff company and CS No. 213/2011 Page No. 3 of 20 plaintiff company raised bills time to time against purchases. It is further submitted that bills are due from defendant, details of which are given in para 7 of the plaint.
7. It is further submitted that plaintiff is entitled to receive and recover amount of Rs.10,92,204/ from defendants along with interest pendentelite @18% p.a. on the aforesaid amount. It is further submitted that the liability of the defendants is joint and several.
8. It is further submitted in the plaint that cause of action arose on 24.06.2006, 14.07.2006 & 04.08.2006 when plaintiff company sold material in question to the defendants. The cause of action further arose on 08.02.2007, 03.03.2007, 17.04.2007 and 22.06.2002 when defendants were called upon to remit the aforesaid amount along with interest @18% p.a. It is further submitted that since cause of action arose in South Delhi, hence this court has jurisdiction to try & entertain the present suit. Hence, the present suit.
9. Summons in the suit were issued to defendants. Defendants have filed their written statement on appearance and refuted the case of plaintiff by submitting that the present suit is based upon fabricated statement of accounts and bogus invoices raised in the name of defendants for the goods or machinery which were never supplied or delivered to them. It is submitted that the demand of Rs.6,93,500/ CS No. 213/2011 Page No. 4 of 20 made by the plaintiff is without any basis and commercial transaction.
10. It is further submitted that the goods in question were never supplied to the defendants and as per the statement of accounts maintained by defendant company, it has paid all the money in respect of goods received by them under the invoices and, therefore, no outstanding of Rs.6,93,500/ along with interest @18% is due against the defendants.
11. It is further submitted that the defendants had placed an order with plaintiff for supply of one Ashok Leyland make diesel engine and one Kirloskar make alternator against Form 'C' which was duly received by defendant but plaintiff in the invoice quoted the excess price i.e. made an overbilling of the agreed price.
12. It is further submitted that Rs.4,00,00/ (after deduction of excess amount) was duly paid to the plaintiff and defendant asked plaintiff to issue 'E1 Form' (i.e. Sale in Transit Form) for the goods, making the defendant able to issue 'FormC' against the sale and supply of goods but the plaintiff with its malafide intention, neglected to issue 'FormE1'.
13. It is further submitted by defendants that they are ready to give 'FormC' provided that plaintiff issue 'FormE1' for the goods mentioned above and accordingly, the claim made by plaintiff for Rs. CS No. 213/2011 Page No. 5 of 20 54,500/ is misconceived and baseless.
14. It is further submitted that as per para 7 of the plaint, the defendants placed an order with plaintiff for one Ashok Leyland make diesel engine of Rs.3,00,000/ against 'FormC' provided the plaintiff in turn will issue 'FormE1' and when defendants received goods and invoices without 'FormE1', they pointed out the factum of excess billing to the extent of Rs.1,500/ and also pointed out nonsupply of 'FormE1' (pertaining to transaction no. 1).
15. It is further submitted that defendants at no point of time placed order for supply of one 125 KVA DEC make alternator for Rs. 1,09,000/ against 'FormC' vide invoice no. 047 dated 14.07.2006 against GR No. 37696 dated 01.07.2006 and hence, the claim of the plaintiff is baseless.
16. It is further submitted that defendants at no point of time place order for two Ashok Leyland make Engine Model ALGP WO4D MK Sr. No.XFHM388990 & 388997 for Rs.2,84,000/ and one Ashok Leyland make Diesel Engine ALGP 680 TC E4 Sl. No. XFHM387605 for Rs.2,95,000/ vide GR No. 051797 dated 23.06.2006 & 051798 dated 23.06.2006 & GR No. 229513 dated 07.07.2006 and hence, the demands of the plaintiff are baseless.
17. It is further submitted that the case of the plaintiff for recovery CS No. 213/2011 Page No. 6 of 20 of Rs.10,92,500/ is vague and baseless and hence, it is prayed that the suit of the plaintiff be dismissed with exemplary costs.
18. Replication to the written statement of defendants filed on behalf of plaintiff reiterating the facts of its case.
19. From the pleadings of the parties following issues were framed by the Ld. Predecessor of this court vide order dated 07.08.2009:
1. Whether plaintiff is entitled to decree for recovery of money against the defendants for the goods supplied? If so, how much?
2. Whether plaintiff is entitled to any interest? If so, at what rate and from which period?
3. Relief.
20. Plaintiff led its evidence and examined Sh. Rajesh Kumar Sharma, Managing Director as PW1. The relevant extract of cross examination of PW1 is as under:
"It is correct that I have been duly authorised by board of directors to institute the present suit but I have not filed the said board resolution. Vol. I may produce the same, if required. Since inception of this company I am one of the Director in this company. Vol. I am CS No. 213/2011 Page No. 7 of 20 managing director presently. I was appointed as a Managing Director 23 years ago. I have personal knowledge about the present case. The goods which are excisable, the invoices are created manually and non excisable goods the invoices are computer generated. The excisable goods are diesel engine, alternator, batteries etc. Nonexcisable goods are fuel tank, battery leads, fuel pipes etc. It is correct that I have not filed a certificate under section 65 B of the Indian Evidence Act along with computer generated invoices. I cannot tell whether defendant had placed any purchase order or not. It is wrong to suggest that no purchase order was placed by defendants at any point of time. It is wrong to suggest that defendant had cleared all the payments with regard to material purchased by them. There is no E1 form under Central Excise Act. The interest is charged on the amount when the payment is not received after 1520 days of the purchase @ 18% p.a..."
"...Defendant did not used to issue any purchase order. Mostly, the orders were placed verbally. It is wrong to CS No. 213/2011 Page No. 8 of 20 suggest that plaintiff company made over billing as mentioned in para no. 7 (i) & (ii) of my affidavit and defendant after making necessary deductions, made the payment. It is wrong to suggest that defendant did not place order for items mentioned in my affidavit at para no. 7 (iii) & (iv). [Vol. The order was placed verbally.] There no agreement between plaintiff and defendant in respect to interest @18% charged by plaintiff. [Vol. The interest @18% is charged as per the business ethics / norms]..."
"...The goods are supplied from our godown as well as we sold the GR (goods receipt) as per the Sales Tax norms. If the goods are supplied from godown, the receipt of godown is taken and if the goods' GR then the GR report is there. There is no particular format for issuing receipt by the defendants in lieu of receipt of goods from the plaintiff.
No E1 form for the purpose of sale in transit was issued as there was no demand from the defendant and also there is no requirement of E1 form for the sale in CS No. 213/2011 Page No. 9 of 20 question. It is wrong to suggest that I am deposing falsely."
21. Plaintiff has also examined Sh. Kishore Kumar, Accounts Officer as PW2. The relevant extract of his cross examination is as under:
"I am working with the plaintiff company since about 20 years. I am aware about the transactions between the plaintiff and defendant. Vol. I may not aware about some transactions. Door delivery means to reach the goods at its destination point. It is correct that as per document Mark L the consignor name is M/s. Ashok Ley Land and consignee name is M/s. Vijay Power Generator but as per the second page of the said document consignnee has directed the transporter to deliver the said goods to M/s. Peekay Silent Generators Pvt. Ltd. and the same bears my signature. The witness is confronted with the second page of the document Mark L and he admitted his signature at point A and second signature is of Mr. Rajesh Sharma, Managing Director at point B. The witness is confronted with the CS No. 213/2011 Page No. 10 of 20 second page of the document Mark M and he admitted his signature at point C which has been signed by me on behalf of MD and second signature is of Mr. Rajesh Sharma, Managing Director at point D. The transporters take the receipt from the party against the delivery of goods. I am dealing all matters pertaining to accounts department. Defendant has almost gave orders for supplying the goods on telephone. Vol. The defendant almost send his staff along with the cheque against the order placed. The invoices EX. PW1/1 to Exhibit PW1/4 are prepared by me but Exhibit PW1/1 to Exhibit PW1/3 does not bear my signature. Only Exhibit PW1/4 bears my signature at point E. vol. Exhibit PW1/1 to Exhibit PW1/3 bears the signature of assistants of the accounts departments. At present I am the authorised signatory of the plaintiff company. In the year 2006 I was the authorised signatory of the plaintiff company. It is correct that invoice no. 0158 dated 24.06.2006 for an amount of Rs. 4,04,000/ and the defendant has paid Rs. 4,00,000/ and only Rs. 4,000/ is CS No. 213/2011 Page No. 11 of 20 due on this bill. It is wrong to suggest that plaintiff company has made excessing billing of Rs. 4,000/ on the said bill. It is correct that invoice no. 046 dated 14.07.2006 for an amount of Rs. 3,01,500/ and the defendant has paid Rs. 3,00,000/ and only Rs. 1,500/ is due on this bill. It is wrong to suggest that plaintiff company has made excessing billing of Rs. 1,500/ on the said bill. It is wrong to suggest that defendant company has not placed any order oral or written against the invoice no. 047 dated 14.07.2006. It is wrong to suggest that defendant company has not placed any order oral or written against the invoice no. 0233 dated 04.08.2006. vol. Both these invoices are reflecting in the Sales Tax / VAT return. It is wrong to suggest that I am deposing falsely. It is incorrect to suggest that defendant company is not liable to pay any amount."
Thereafter, PE was closed.
22. Defendants also led their evidence and examined Sh. Pankaj Mittal, Managing Director as DW1. The relevant extract of his cross CS No. 213/2011 Page No. 12 of 20 examination is as under:
"It is correct that Ex.DW1/2 (OSR) does not bear any seal of defendant company. The said exhibit is computer generated and signed by my wife being Director of the company. It is wrong to suggest that Ex.DW1/2 is forged and fabricated as the same does not bear the company seal. It is correct that I have not placed on record Memorandum of Association and Articles of Association of the defendant company. [Vol. The same can be produced if required.] I have also not placed on record copy of Minutes Book in respect of board resolution Ex.DW1/2. [Vol. The same can be produced if required.] It is wrong to suggest that since the board resolution dated 24.12.2008 is not in my favour, I have not placed the copy of Minutes Book on record. There are two Board Directors in the defendant company. It is correct that the defendant company had purchased the material from the plaintiff company vide Ex.PW1/1. According to me, the document MarkL is not an authentic document as in the original invoice the G.R. CS No. 213/2011 Page No. 13 of 20 no. is mentioned manually and not printed therein..."
"...The document MarkN does not bear any receiving of the goods by the defendant company, the same pertains to plaintiff company and M/s Ashok Leyland. The goods sold by plaintiff vide Ex.PW1/3 and Ex.PW1/4 were not received by the defendant company as there is no receiving/receipt on record. The defendant company dealt with plaintiff company from the financial year 200607 to 200809. The defendant company had been placing the purchase order upon plaintiff company for purchase of goods. The purchase order used to be handed over in original to the representative of the plaintiff company and no receiving was obtained. The purchase orders were used to be collected by officials of plaintiff company namely, Mr. Hemant Tyagi and Mr. Nazeem Khan from the defendant company. It is wrong to suggest that no purchase order was ever placed by the defendant company to the plaintiff company that is why no receiving of the same was obtained. It is further wrong to suggest that I am deposing falsely regarding CS No. 213/2011 Page No. 14 of 20 issuance of purchase order by the defendant company and handing over of the same to the plaintiff's officials without obtaining receiving..."
"...It is correct that the defendant company used to make payment on account basis to the plaintiff company. It is wrong to suggest that Ex.DW1/2 (Colly) is false and fabricated. I have to verify from the record whether FormE1 has been obtained from plaintiff company in respect to the goods purchased from plaintiff company. It is wrong to suggest that FormE1 is not required for purchasing goods from the plaintiff company by the defendant company. We have requested plaintiff company vide emails to provide FormE1 in respect of purchases made with them. The copy of emails are not placed on record. It is wrong to suggest that defendant company has not sent any email to the plaintiff company with regard to FormE1 that is why the same are not placed on record. It is correct that with regard to purchase mentioned in para 7 and 7(2) of my evidence affidavit, I have not placed on record any purchase CS No. 213/2011 Page No. 15 of 20 order. I have not made any correspondence / communication with the plaintiff regarding charging excess amount on the said bills. It is wrong to suggest that since the defendant company has not made any correspondence with the plaintiff, hence the plaintiff company has not charged the excess amount on the abovesaid bills. It is correct that Ex.PW1/8 has been duly received by the employee of defendant company namely Mr. Vikas, Office Assistant. I cannot tell who has received Ex.PW1/13 to Ex.PW1/16 on behalf of defendant company as I cannot identify the signature thereupon. I cannot identify the signatures on document Ex.PW1/19 to Ex.PW1/21. I cannot say whether Ex.PW1/7 (Colly) has been sent through registered AD (Ex.PW1/8). It is wrong to suggest that defendant company is liable to make the payment of the outstanding amount as stated in plaint, hence after receiving so many letters / reminders from the plaintiff company, I did not reply to the same. No person with the name of Hemant Tyagi is employed with defendant CS No. 213/2011 Page No. 16 of 20 company. It is correct that in M/s H. P. Silent my wife Kanika Mittal is partner with Hemant Tyagi and I have no connection / interest therein. I have no business relation with Hemant Tyagi. It is correct that the defendant company has rent out premises to M/s H. P. Silent. I cannot tell whether any FormC is issued to plaintiff company in respect of Ex.PW1/1 to Ex.PW1/4. It is wrong to suggest that I am deposing falsely."
Thereafter, DE was closed.
23. Arguments heard. Since both the issues are interconnected, hence they are taken together:
ISSUE NO. 1
Whether plaintiff is entitled to decree for recovery of money against the defendants for the goods supplied? If so, how much?
and ISSUE NO. 2 Whether plaintiff is entitled to any interest? If so, at what rate and from which period?
24. It is argued by counsel for plaintiff that plaintiff has placed on record invoice Ex.PW1/1 in support of the sale one 125 KVA Kirloskar make alternator sl. no. SA531250120 for Rs.4,04,000/, GR No. G215149 dated 01.06.2006 and GR no. Mark L and M. However, it is CS No. 213/2011 Page No. 17 of 20 the case of the plaintiff that payment of Rs,4,04,000/ has been duly received from the defendant but on account of nondelivery of Form 'C', an amount of Rs.50,500/ was charged.
25. It is further argued by counsel for plaintiff that in order to prove the sale of one Ashok Leyland make Diesel Engine Sr. No. YFHM384280 for Rs.3,01,500/ against invoice no. 046 dated 14.07.2006 GR No. 215172 dated 08.06.2006 which is Ex.PW1/2 with GR No. Mark N, the payment of Rs.3,00,000/ has already been received from defendant but in the absence of Form C, Rs.37,687/ is due upon defendant.
26. It is further argued that in order to prove sale of one 125 KVA KEC make Alternator, invoice no. 047 dated 14.07.2006 with GR No. 37696 dated 01.07.2006 of Raj Transport Carrier is placed on record which is Ex.PW1/3 with GR MarkO and further submitted that this payment has not been make by the defendant and hence, an amount of Rs.1,09,000/ and an additional amount of Rs.13,625/ in the absence of Form C is due against the defendant. However, the defendant has denied the delivery of one 125 KVA KEC make Alternator.
27. It is further argued by counsel for plaintiff that in order to prove the delivery of two Ashok Leyland make Engine Model ALGP WO4D MK Sr. No. XFHM388990 & 388997 for Rs.2,84,000/ each due CS No. 213/2011 Page No. 18 of 20 against defendant and in the absence of delivery of Form C, an additional amount of Rs.72,375/ each is due total of which come to Rs. 5,79,000/ for this transaction. These transactions are proved through invoice no. DEL/0233/0607 Ex.PW1/4 with GR No. MarkP. However, defendant has denied the delivery of these two Ashok Leyland make Engine Model.
28. It is further argued by counsel for plaintiff that total amount of Rs.8,67,687/ is due with defendant along with interest @18% p.a. w.e.f 17.04.2007 which come to Rs.10,92,204/ till the date of filing of the suit.
29. The main argument of the defendant is that they have already made a payment towards invoice Ex.PW1/1 and it was never the duty of the defendant to provide Form 'C', rather it was the duty of the plaintiff to provide Form E1 to the defendant. Since the product has been sold during transit and hence, defendant is not liable to make payment of Rs. 60,500/ towards invoice Ex.PW1/1. Similarly, defendant is not liable to make payment of Rs.37,687/ towards invoice Ex.PW1/2. Defendant has totally denied the delivery of goods as per invoice Ex.PW1/3 and Ex.PW1/4.
30. I have gone through the invoices and GR report Mark 'O' and 'P'. The invoices have been raised against defendants and there is a CS No. 213/2011 Page No. 19 of 20 delivery report also to this extent. Accordingly, I am of this opinion that the goods have been delivered to defendant in respect of invoice Ex.PW1/3 and Ex.PW1/4 and defendants are liable to make payment to the plaintiff. Accordingly, plaintiff is entitled to recover the payment of goods in respect of invoice Ex.PW1/3 and Ex.PW1/4. It is pertinent to mention that the liability of defendants is joint and several.
RELIEF
31. In view of above discussion, the suit is decreed in favour of plaintiff and against defendants for recovery of Rs.6,88,000/ (rupees six lacs eighty eight thousand only) along with interest pendentelite & future @8% per annum from the date of filing of the suit till its realization. No order as to cost.
32. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open Court.
(NEELAM SINGH) ADJ02 (SOUTH), SAKET, NEW DELHI 29.11.2012/ TP CS No. 213/2011 Page No. 20 of 20 CS/213/2011 M/s Vijaypower Generators Ltd. v. M/s Pee Kay Silent Generators (P) Ltd. & Ors.
29.11.2012
Present: Counsel for the parties.
Arguments heard.
Vide my separate judgment of even date, the suit is decreed in favour of plaintiff and against defendants for recovery of Rs. 6,88,000/- along with interest pendentelite & future @8% per annum from the date of filing of the suit till its realization. No order as to cost.
Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ-02 (SOUTH), SAKET, NEW DELHI 29.11.2012/ TP CS No. 213/2011 Page No. 21 of 20