Delhi District Court
M/S Mlm India Ltd vs M/S Sampark Industries Ltd on 28 November, 2023
CNR No. DLCT010163652022
IN THE COURT OF MS. ILLA RAWAT :
DISTRICT JUDGE COMMERCIAL COURT- 03:
(CENTRAL) : TIS HAZARI : DELHI.
CS (COMM) No. 2585/2022
In the matter of :-
M/s MLM India Ltd.
Having its Registered Office at:
2964, Kucha Mai Dass,
Bazar Sita Ram, Delhi-110006
Through its Authorised Representative
Sh. Puneet Tandon S/o Sh. Vilayati Ram ......Plaintiff
Versus
1. M/s Sampark Industries Ltd.
Having its Registered Office at:
Panchvati, Ram Mandir Road,
Opposite Pocket-D-4, Vasant Kunj,
New Delhi-110070
Also at:
P-2/5, Site-IV, UPSIDC Industrial Area,
Kasna Road, Greater Noida-201306, U.P.
Email: [email protected]
2. Sh. Rajinder Kumar Aggarwal
Director M/s Sampark Industries Ltd.
At Panchvati, Ram Mandir Road,
Opposite Pocket-D-4, Vasant Kunj,
New Delhi-110070
Also at:
P-2/5, Site-IV, UPSIDC Industrial Area,
Kasna Road, Greater Noida-201306, U.P.
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 1 / 38
3. Sh. Rohan Aggarwal
Director M/s Sampark Industries Ltd.
At Panchvati, Ram Mandir Road,
Opposite Pocket-D-4, Vasant Kunj,
New Delhi-110070
Also at:
P-2/5, Site-IV, UPSIDC Industrial Area,
Kasna Road, Greater Noida-201306, U.P.
Email: [email protected]
4. Sh. Vikas Aggarwal
Director M/s Sampark Industries Ltd.
At Panchvati, Ram Mandir Road,
Opposite Pocket-D-4, Vasant Kunj,
New Delhi-110070
Also at:
P-2/5, Site-IV, UPSIDC Industrial Area,
Kasna Road, Greater Noida-201306, U.P.
5. Sh. Chirag Aggarwal
Director M/s Sampark Industries Ltd.
At Panchvati, Ram Mandir Road,
Opposite Pocket-D-4, Vasant Kunj,
New Delhi-110070
Also at:
P-2/5, Site-IV, UPSIDC Industrial Area,
Kasna Road, Greater Noida-201306, U.P. ......Defendants
Date of Institution : 28.11.2022
Date on which Judgment reserved : 18.11.2023
Date on which judgment pronounced : 28.11.2023
SUIT FOR RECOVERY
JUDGMENT
1. Vide this judgment I shall dispose of the suit for recovery of Rs.6,29,657/- filed by plaintiff against the CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 2 / 38 defendants.
2. Briefly stated facts of the case as averred in the plaint are that the plaintiff is a Limited Company duly registered/incorporated with the Registrar of Companies having is registered office at 2964, Kucha Mai Dass, Bazar Sita Ram, Delhi-110006 and is engaged in business of selling of paper and paper board etc. to various customers i.e. industrial/institutional as well as non-industrial customers. The present suit has been instituted through Shri Puneet Tandon, its Accounts (Executive) who has been duly authorized by way of Board Resolution dated 24.09.2022 and is competent to file, sign, verify, institute and prosecute the present suit on behalf of plaintiff company.
3. It is further averred in the plaint that the defendant No.1 is a Limited Company and defendants no.2 to 5 are its directors. The defendants had business dealings with the plaintiff company. During the course of business, the defendants had purchased the goods from the plaintiff company from its office situated at 2964, Kucha Mai Dass, Bazar Sita Ram, Delhi-110006 from time to time. The goods were duly supplied by the plaintiff from its abovementioned office/working place to the defendants and were duly received by the defendants at their destination in good/intact condition without any kind of complaint of whatsoever nature.
4. It is further averred in the plaint that the plaintiff company has been maintaining the regular and running statement of account/ledger account in respect of the business transactions CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 3 / 38 which took place between the plaintiff and defendants. The details of the 11 invoices, amounting to Rs.93,18,778.60 (including TCS U/s 206C (1H) of Rs.3,413/-) are given in para 5 of the plaint.
5. It is further averred that the defendants had made part payments of Rs.88,19,572/- to the plaintiff company on different occasions and that the last part payment of Rs.1,75,000/- was made on 27.08.2021 through bank transfer. As per the statement of account/ledger account maintained by plaintiff, a sum of Rs.4,99,206.60 remained due and outstanding against the defendants as on 28.08.2021 which defendants have failed to clear/pay despite repeated requests, reminders, emails and visits to the office of the defendants. As per terms and conditions printed on the invoice, defendants are liable to pay interest @ 24% p.a. on the outstanding amount w.e.f. 28.08.2021 till its realization. Since defendants have failed to pay the outstanding amount, plaintiff got issued a legal notice dated 23.02.2022, through its counsel, calling upon defendants to clear the outstanding amount alongwith interest @ 24% per annum w.e.f. 28.08.2021 within 15 days of the receipt of the notice. The legal notice was duly served upon defendants on 25.04.2022 and 28.04.2022 but was neither replied to nor acted upon by the defendants.
6. It is further averred that the plaintiff had filed an application before DLSA, Central District, Tis Hazari Courts on 03.06.2022 for initiating pre-institution mediation process. The defendants did not participate in the mediation proceedings CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 4 / 38 despite service of notices, thereby said proceedings resulted in issuance of non-starter report dated 21.09.2022.
7. The plaintiff has given following breakup of the outstanding amount which defendants are liable to pay to it :-
S.No. Particulars Amount (Rs.)
1. Principal Outstanding amount 4,99,206.60
2. Interest @ 24% per annum w.e.f. 1,30,450.21
28.08.2021 till 30.09.2022
TOTAL 6,29,656.81
or in round figure
Rs.6,29,657/-
8. The plaintiff has thus prayed for a money decree in sum of Rs.6,29,657/- alongwith pendente lite and future interest @ 24% p.a. w.e.f. 01.10.2022 till its realization in favour of the plaintiff and against the defendants.
9. Since defendants no.2 to 5 were directors of defendant no.1 company and had no personal liability with respect to business transactions between the plaintiff and defendant no.1, hence summons were not issued to them and as such, matter proceeded against defendant no.1 only.
10. The defendant no.1 has contested the suit by filing a detailed written statement. By way of preliminary objection, it is stated that since all the pages of paper book, as detailed in Para A of the preliminary objections to written statement, have not been signed by AR of the plaintiff, the suit of plaintiff is liable to be dismissed on this ground alone. Another objection has been taken on the ground that the plaint has not been signed and CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 5 / 38 verified and suit has not been instituted by authorized representative of the plaintiff company and hence it ought to be dismissed.
11. It is further averred that at the time of receiving and accepting orders from the defendant, the plaintiff had promised that the raw material to be supplied by it shall be only as per requirement of the defendant and if the material so supplied is of bad quality, then the plaintiff shall take back the same and if any loss is suffered by defendant due to use of bad quality raw material, the plaintiff shall make good the entire loss suffered by the defendant. It is stated that even prior to 23.03.2021, the plaintiff had supplied to the defendant paper of bad quality and again vide invoices no.1384 dated 23.03.2021 and no.1415 dated 27.03.2021, the plaintiff had supplied bad quality of paper as raw material due to which the defendant had suffered a loss of Rs.4,79,174/- which plaintiff is liable to reimburse to the defendant as promised. The defendant had raised the debit note in favour of the plaintiff for the said loss which had not been entered by the plaintiff in the books of accounts as maintained by it.
12. It is further submitted that the defendant had returned to the plaintiff bad quality paper worth Rs.3,42,936/-. Further vide invoice no.868 dated 29.12.2020, the defendant had received less quantity of paper as raw material for which also defendant had raised the debit note no.11 dated 29.12.2020. The said debit note has also not been entered by the plaintiff in the books of accounts maintained by it. It is stated that the defendant CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 6 / 38 had made various complaints to the concerned staff/employee of the plaintiff telephonically as well as through whatsapp without any avail.
13. As per statement of accounts of plaintiff, as maintained by the defendant, only a balance payment of Rs.39,837/- is due and payable by defendant to the plaintiff and not the amount as claimed by plaintiff.
14. Another objection with respect to territorial jurisdiction of the Court has been taken. It is stated that the defendant placed the orders from Greater Noida which were accepted at Greater Noida, all bills were addressed to Greater Noida only and all payments were received by the plaintiff from Greater Noida and hence no cause of action arisen within the jurisdiction of this Court. Since defendant neither works for gain nor resides within the jurisdiction of this Court and no part of cause of action had arisen within the jurisdiction of this Court and further the plaintiff failed to plead in the plaint which part of cause of action as per Section 20 CPC had arisen within the jurisdiction of this Court, the plaint is liable to be returned.
15. On merits, each and every averment made by plaintiff in the plaint has been controverted. It is reiterated that the plaintiff had supplied bad quality of paper/raw material resulting in loss to the defendant. The plaintiff had received and accepted the purchase orders of the defendant from its factory at Greater Noida. It further reiterated that vide invoice No.868 dated 29.12.2020, the defendant had received 20 kg. less paper CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 7 / 38 worth Rs.1568/- for which the defendant had raised and sent the debit note No.011 dated 29.12.2020. Again vide invoices No.1384 dated 23.03.2021 and 1415 dated 27.03.2021, the plaintiff had supplied bad quality paper about which the defendant had informed/complained to the concerned staff/employee of the plaintiff Mr. Himanshu (whatsapp no.9910400224) telephonically as well as through whatsapp communication. The said whatsapp communication as well as other communications exchanged pursuant thereto have been reproduced verbatim in para 4 of reply on merits of the written statement.
16. The defendant has given details of chemicals consumed in coating of paper purchased by it from plaintiff also in para 4 of the reply on merits to written statement to state that raw material purchased by the defendant from plaintiff was treated by using chemicals to produce finish product which was sold to various vendors and since the raw paper supplied by plaintiff was defective, defendant suffered loss in sum of Rs.4,79,174/-. Based on these averments the statement of account / ledger account maintained by plaintiff has been challenged. It is contended that it does not reflect correct status of debit notes and credit notes and that plaintiff has concealed material facts regarding supply of bad quality of raw material, return of bad quality raw material by the defendant and losses suffered by defendant due to bad quality of raw material and to deduct amount accruing thereupon from the amount shown outstanding against the defendant. The rate of interest of 24% p.a. has also been challenged referring to an email by plaintiff CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 8 / 38 wherein 18% interest had been claimed. Based on these facts it is prayed that suit of plaintiff be dismissed.
17. Plaintiff has filed replication reiterating averments made in the plaint and denying contra averments made in the written statement. It is denied that plaintiff has concealed material facts from the Court or that it had supplied defendant paper of bad quality or that defendant had suffered loss of Rs.4,79,174/- due to supply of bad quality paper as raw material by the plaintiff or that defendant had returned any goods to the plaintiff or that defendant had received less quantity of paper/ raw material vide invoice No. 868 dated 29.12.2020. It is denied that defendant had raised debit note No.11 dated 29.12.2020 in respect of short supply of goods which were not accounted for in the ledger account statement of the plaintiff. As regards complaints by defendant with respect to quality of paper, it is stated that whenever complaint was made by defendant to the plaintiff regarding any type of discrepancy in the paper goods, the same were duly obliged / fulfilled then and there. It is denied that only a sum of Rs.39,837/- is due and payable by plaintiff to the defendant. It is thus prayed that suit of plaintiff be decreed by rejecting vague and baseless assertions made in the written statement filed by the defendant.
18. From the pleadings of parties, following issues were framed on 24.05.2023 :-
1) Whether this Court has no territorial jurisdiction to try the present suit ? (OPD)
2) Whether the AR of plaintiff is duly authorized to CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 9 / 38 sign and verify the pleadings and to institute the suit on behalf of plaintiff? (OPP)
3) Whether plaintiff is entitled to decree of recovery of Rs.6,29,657/- against the defendant, as prayed for? (OPP)
4) Whether plaintiff is entitled for interest. If yes, at what rate and for which period? (OPP)
5) Relief.
19. Thereafter matter was fixed for evidence of plaintiff. In order to prove its case plaintiff has examined two witnesses namely Shri Puneet Tandon as PW-1 and Sh. Himanshu Jain as PW-2.
20. Sh. Puneet Tandon is working as Accountant in the plaintiff firm. He is also the authorized representative of the firm. He filed his affidavit and tendered the same in evidence as Ex.PW-1/A. He has reiterated the facts averred in the plaint in his affidavit Ex.PW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit
1 Photocopy of Certificate of Incorporation of the Ex.PW-1/1
plaintiff company
2 Original Board Resolution dated 24.09.2022 in his Ex.PW-1/2
favour
3 Computer generated invoice no.IS-781 dated Ex.PW-1/3
09.12.2020 for Rs.78,428/-
4 Computer generated invoice no.IS-809 dated Ex.PW-1/4
16.12.2020 for Rs.8,85,808/-
5 Computer generated invoice no.IS-868 dated Ex.PW-1/5
29.12.2020 for Rs.8,86,200/-
6 Computer generated invoice no.IS-904 dated Ex.PW-1/6
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 10 / 38
06.01.2021 for Rs.8,81,888/-
7 Computer generated invoice no.IS-1021 dated Ex.PW-1/7
28.01.2021 for Rs.7,33,712/-
8 Computer generated invoice no.IS-1042 dated Ex.PW-/18
02.02.2021 for Rs.8,83,848/-
9 Computer generated invoice no.IS-1066 dated Ex.PW-1/9
05.02.2021 for Rs.11,474/-
10 Computer generated invoice no.IS-1057 dated Ex.PW-1/10
18.02.2021 for Rs.1,85,018/-
11 Computer generated invoice no.IS-1218 dated Ex.PW-1/11
27.02.2021 for Rs.6,60,455/-
12 Computer generated invoice no.IS-1240 dated Ex.PW-1/12
02.03.2021 for Rs.6,60,847/-
13 Computer generated invoice no.IS-1270 dated Ex.PW-1/13
06.03.2021 for Rs.7,05,373/-
14 Computer generated invoice no.IS-1278 dated Ex.PW-1/14
08.03.2021 for Rs.7,06,633/-
15 Computer generated invoice no.IS-1320 dated Ex.PW-1/15
13.03.2021 for Rs.3,80,839/-
16 Computer generated invoice no.IS-1330 dated Ex.PW-1/16
16.03.2021 for Rs.3,68,330/-
17 Computer generated invoice no.IS-1384 dated Ex.PW-1/17
23.03.2021 for Rs.7,09,190/-
18 Computer generated invoice no.IS-1415 dated Ex.PW-1/18
27.03.2021 for Rs.5,77,322.60
19 Original Fourteen Weighing Receipts issued by Ex.PW-1/19
Dharamkanta to
Ex.PW-1/32
20 Original Twelve Border Toll Plaza Receipts issued by Ex.PW-1/33
MCD to
Ex.PW-1/44
21 Computer generated Statement of Ledger Account Ex.PW-1/45
(colly.)
22 Office copy of legal notice dated 23.02.2022 (posted Ex.PW-1/46
on 24.02.2022)
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 11 / 38
23 Original Eleven Speed Post receipts all dated Ex.PW-1/47
24.02.2022 (colly)
24 Eleven computer generated tracking Reports of the Ex.PW-1/48
Postal Receipts to
Ex.PW-1/58
25 Original Non-Starter report dated 21.09.2022 issued Ex.PW-1/59
by the DLSA, Central District, Tis Hazari Courts, Delhi 26 Printout of Company Master Data of the defendants Ex.PW-1/60 27 Certificate U/s 65-B of Indian Evidence Act Ex.PW-1/61
21. During his cross-examination, the PW-1 deposed that he was working as Accounts Executive in plaintiff company since the year 2010. He had filed the present case, on behalf of plaintiff company, as well as evidence affidavit Ex.PW-1/A after discussing the same with PW-2 Himanshu as also after going through the record of the company including accounts statement Ex.PW-1/45.
22. During his further cross-examination, he deposed that there were three Directors of the plaintiff company and that Resolution Ex.PW-1/2 had been signed by only one Director of the plaintiff company. He denied the suggestion that the other two Directors did not sign Resolution Ex.PW-1/2 as the said Resolution was not passed in any meeting of the Board of Directors or that the plaintiff company did not maintain Minutes Book. The Minutes Book remained in possession of the CA of the company.
23. The PW-1 further deposed that he was not aware if defendant had purchased paper as a raw material. He explained CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 12 / 38 that it was so as he was in the sales department and that the concerned sales person would have knowledge regarding the same. The PW-1 expressed lack of awareness regarding the purchase orders by the defendant company i.e. if they were oral or in writing. He termed it correct that plaintiff had agreed to supply goods as per requirement and specifications given by the defendant.
24. When asked whether the plaintiff assured the defendant that the raw papers supplied by plaintiff to defendant shall not be damaged i.e. it would not be torn or cut and would be of 65 gsm width, the PW-1 expressed his inability to answer the question as he was from Accounts Department. Same was the reply given by PW-1 in response to question that plaintiff had assured the defendant that if raw papers supplied by plaintiff to defendant was damaged i.e. it was torn or cut or of width other than 65 gsm then plaintiff would take back the said paper and reply to the question plaintiff had assured the defendant that in the event the raw papers supplied by plaintiff to defendant which was damaged i.e. it was torn or cut or of width other than 65 gsm was used by defendant then plaintiff would make good loss, if any, suffered by defendant and the question that the defendant had only placed order for good quality raw paper with the plaintiff and reply to the question that good quality raw papers means that paper would neither be torn or cut and would have width 65 gsm.
25. When put para 4 of the plaint, the PW-1 termed it correct that in the said para it was stated that goods were received CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 13 / 38 by defendant at their destination in good/ intact condition without any kind of complaint of whatsoever nature. He further termed it correct that in affidavit of admission / denial, Ex.PW-1/D1, filed by him on behalf of plaintiff company on 24.05.2023, the print-out of whatsapp correspondence from Page 38 to 42, then exhibited as Ex.PW-1/D2 (colly), from defendant had been admitted. He termed it correct that defendant had made complaints on 22.02.2021 and 17.03.2021 and had also sent photograph of paper on 27.03.2021. He was unable to state by looking at the said photographs if the width of paper reflected from the images appeared to be less than 65 gsm. He further termed it correct that vide whatsapp message dated 15.04.2021 defendant had informed that 3.5 ton material is to be returned and that 1 (one) ton material is Farra.
26. The PW-1 denied that defendant suffered monitory loss due to bad quality paper supplied to him by the plaintiff. He was unable to admit or deny if the price of the paper which was torn, cut or has width of less than 65 gsm was on lower side than a good paper or that the fact that paper was torn, cut or had width less than 65 gsm was revealed only when the paper was used. He was unable to state if defendant had purchased raw paper from plaintiff to prepare finished goods or if several chemicals were required to be used on raw paper to prepare finished goods or if defendant had incurred expenditure of Rs.2,23,424/- for purchase of chemicals used to prepare finished goods / paper. The PW-1 denied that defendant never sold paper to the plaintiff. He volunteered to state that on one occasion defendant returned goods as purchase. After refreshing his memory from plaint, with CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 14 / 38 the permission of the Court, the PW-1 deposed that the fact that these facts were not mentioned in the plaint. He volunteered to state that it was mentioned in the ledger account.
27. When asked to point out the relevant entry from ledger account statement Ex.PW-1/45, the witness pointed out purchase entry dated 26.03.2021 for Rs.7680/- and purchase entry dated 30.03.2021 for Rs.1,00,202/- and purchase entry dated 13.05.2021 for Rs.2,35,054/- and stated that these entries were in respect of returned goods but had been shown as 'Purchase Entries' in the ledger accounts.
28. At this stage, the PW-1 was put para C (iv) of reply to preliminary objections in replication, wherein it was stated that defendant had never returned any kind of bad quality paper worth Rs.3,42,936/-. He then termed it correct that the total of the three purchase entries shown to him from Ex.PW- 1/45 was Rs.3,42,936/-.
29. The PW-1 denied that the averment made in para 6 of the plaint that the defendant had made part payment of Rs.88,19,572/- did not include Rs.3,42,936/- towards the returned goods or that plaintiff had deliberately concealed the fact of return of goods worth Rs.3,42,936/- while filing the claim.
30. The PW-1 denied that he had wrongly stated in affidavit Ex.PW-1/A that defendant did not make any complaint regarding defective paper prior to filing of the suit or that debit notes issued by defendants at Pages 35 to 37 of documents filed CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 15 / 38 along with written statement were correct. He volunteered to state that the said debit notes were incorrect otherwise the amount thereof would have been reflected from the GST portal. He denied that the said debit notes had been issued by the defendants in respect of losses suffered by them due to supply of defective goods. The PW-1 was unable to state whether or not defendants had placed the purchase orders from Greater Noida. He termed it correct that no document had been placed on record by the plaintiff from which it could be ascertained that order was placed with plaintiff's office at Bazar Sita Ram.
31. When put Para 4 of parawise replies on merits of replication, the PW-1 admitted having stated therein that whenever defendant raised issue with respect to supply of goods, the same were sorted / resolve then and there and no grievance of defendant was left and that defendant agreed to pay balance amount to plaintiff company upon resolution of such issue. The PW-1 was, however, unable to state the mode and manner in which the grievances of defendant were resolved. He was unable to produce any written acknowledgement from defendant with respect to their grievances having been resolved by the plaintiff. He denied the suggestion that plaintiff was unable to resolve the complaints of defendant with respect to the goods and hence nothing in this respect had been mentioned either in plaint or replication or in his evidence affidavit. He termed it correct that interest clause was merely mentioned on the invoices and there was no separate agreement with defendant in this regard. He denied the suggestion that defendant was liable to pay only a sum of CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 16 / 38 Rs.39,837/- to the plaintiff.
32. The PW-2, Sh. Himanshu Jain, was working as Sales Executive for plaintiff. He filed his affidavit and tendered the same in evidence as Ex.PW2/A. He relied upon print out of emails dated 17.12.2021, 10.01.2022, 17.01.2022 and 09.02.2022, sent by him from the email ID of plaintiff company, to the defendant, to pay the outstanding amount as Ex.PW-2/1 (colly).
33. During his crossexamination, the PW2 termed it correct that when defendant approached plaintiff for supply of paper it was assured by the plaintiff that the raw paper supplied by plaintiff to defendant would neither be torn nor cut and that its width would be as per requisite GSM and that defendant was assured that in case the raw papers supplied by plaintiff to defendant was torn or cut or was not of requisite GSM then the same would be taken back by the plaintiff.
34. When questioned whether a good quality raw paper meant that paper would neither be torn or cut and would be of 65 GSM width, the PW-2 replied that good quality raw paper meant that it would be neither torn nor cut but there could be a variation of 5 in GSM in the requisite width.
35. When put invoices Ex.PW-1/3 to Ex.PW-1/18, issued by plaintiff company, the PW-2 termed it correct that they did not find mention that there would be variation of 5 in GSM width. He further termed it correct that no document had been CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 17 / 38 placed on record by the plaintiff to reflect that defendant had agreed for variation of upto 5 GSM in width and that this fact was also not mentioned either in plaint or replication or his affidavit Ex.PW-2/A. He denied that there was no reference to variation of 5 GSM in plaint or replication or his affidavit Ex.PW-2/A or any other document including the mails exchanged between the parties as no such variation parameter were agreed upon. He volunteered to state that there was no mail from defendant with respect to defective quality and even when plaintiff demanded outstanding amount from defendant they did not reply that there was any defective supply of raw paper. He deposed that if there was variation of plus minus 5 GSM then the paper is not of proper quality.
36. The PW-2 denied that the price of paper did not have stipulation if GSM was less than good quality paper. He volunteered to state that GSM variation did not depreciate the value of the paper. The price of paper was affected if it was otherwise damage i.e. it was torn or cut or had issue with respect to coating. Even when paper was torn or cut there would be wastage of paper but when there was a defective coating then price of paper would be affected.
37. The PW-2 denied that plaintiff had assured the defendant that in case quality of paper supplied was poor and defendant suffered any loss consequent to it then plaintiff would make good loss, if any, suffered by defendant.
38. During his further cross-examination, the PW-2 CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 18 / 38 termed it correct that defendant used to purchase raw paper for preparing finished products for which various types of chemicals were used.
39. When put whatsapp correspondence Ex.PW-1/D-2 (colly) and specifically the image of paper on page 40 on which 61.9 was written and on page 41 number 53.4 was written and asked whether these numbers referred to GSM width and if he (PW-2) had reverted to whatsapp message dated 01.04.2021 by stating "we will check shortly" which is at page 42, the PW-2 termed it correct that he termed it correct that he had sent said message on 01.04.2021. He, however, volunteered to state that his other whatsapp messages after April, 2021 had not been filed by the defendant.
40. The PW-2 denied that he had wrongly deposed in his affidavit Ex.PW-2/A that defendant did not have any complaint in whatsoever nature with respect to goods supplied by plaintiff to defendant for Ex.PW-2/D-2 (colly) reflected such complaints. The PW-2 admitted that there was no document on record from which it could be ascertained that all the grievances of defendant with respect to cuts, tears and variance in width of GSM in raw paper had been sorted out.
41. The PW-2 denied that the defect in the paper due to cuts/tears or variance in the width of GSM in raw paper could be ascertained only after the paper was used. He volunteered to state that GSM is checked when the paper is unloaded from the delivery truck and also when it is put in CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 19 / 38 machine for processing. As regards cuts and tears in paper they are visible to eye.
42. The PW-2 termed it correct that since raw paper was in rolls and it was not possible to open the entire roll and to check the GSM of the entire paper roll when it was unloaded. He, however, added that it was very rare for GSM to vary from place to place in a paper roll and that while loading the paper in the machine, its GSM was continuously checked after every 50 mtrs. length and so on. There was no guideline as to length after which GSM was to be checked once the paper roll was loaded on the machine and that it depended from person to person and from organization to organization.
43. The PW-2 denied that plaintiff had supplied bad quality paper to defendant prior to 23.03.2021 and also vide invoice No.1384 dated 23.03.2021 and 1415 dated 27.03.2021. When asked to specify the invoice from which the paper, which was subject matter of Ex.PW-1/D-2, was supplied, the PW-2 stated that it would be in the knowledge of defendant.
44. The PW-2 further deposed that there was no mail from defendant in respect of all purchase orders and that few purchase orders, which had been received, were from Greater Noida Factory. The PW-2 denied that plaintiff had supplied 20 Kg. less paper to defendant vide invoice No.868 dated 29.12.2020. He further denied that defendant had issued a debit note for Rs.4,79,174/- which it had suffered on account of bad quality paper. When the witness is shown debit note, Mark PW-
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 20 / 38 2/D-1, at Page 36 of the written statement, he stated that no such debit note was issued by defendant. He denied that there was no agreement between plaintiff and defendant that interest would be charged on late payment or that as on date defendant was liable to pay only a sum of Rs.39,837/- to the plaintiff and not the claimed amount.
45. The defendant company has also examined their Accountant/Authorized Representative namely Shri S.N. Singh as DW-1. He has filed his affidavit and tendered the same in evidence as Ex.DW-1/A. He has reiterated the facts averred in the written statement in his affidavit Ex.DW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit
1 Resolution dated 06.03.2023 Ex.DW-1/1
2 Statement of Accounts of plaintiff as maintained Ex.DW-1/2
by the defendant w.e.f. 01.04.2020 to 31.03.2021 3 Certificate U/s 65B of the Evidence Act Ex.DW-1/3 4 Chart showing the details of chemicals Ex.DW-1/4 consumption and value thereof used for coating of paper 4.125 MT 5 Photocopies of 07 Invoices of various vendors Ex.DW-1/5 (Colly) (Page no.25 to 31 of list of documents filed by defendant) 6 Tax invoices bearing No. 0368 dated 08.06.2021, Ex.DW1/6 0468 dated 24.06.2021 and 0562 dated 08.07.2021 (Colly) (Page no.32 to 34 of list of CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 21 / 38 documents filed by defendant) 7 Debit note bearing no.11 dated 29.12.2020 Ex.DW-1/7 8 Credit note No. 24 dated 08.07.2021 EX.DW-1/8
46. During his cross-examination by counsel for plaintiff, the DW-1 deposed that besides him, there were 30-35 other persons working in the defendant company and that he had not filed any document on record to prove that he was working in sales/purchase department of defendant. He denied the suggestion that he was not looking after the sales/ purchase work of the defendant company or that he had no knowledge of the contents of his affidavit Ex.DW-1/A due to this reason. He had no knowledge about the quality of the paper but had been made AR of defendant company as he was looking after the accounts work in the defendant company.
47. During his further cross-examination, the DW-1 deposed that there were persons posted in quality department check the quality of the paper and that name of one of such person was Sh. Pradeep Arya. He denied the suggestion that person named Akhilesh was looking after the work of sale/purchase and quality of paper in defendant company. He then deposed that the order for purchase of papers was given by the Directors of the company and that one of such director was Sh. Rohan. He further deposed that he had seen the paper supplied by the plaintiff company and that he could tell by seeing the paper that it was defective. He volunteered to state that quality report was prepared by the concerned department.
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 22 / 38
48. At this stage, DW-1 was asked to clarify which of his two statements i.e. his statement that he had no knowledge of the quality of paper or that he could tell by seeing the paper supplied by plaintiff that it was defective was correct. The DW- 1 reiterated that he had no knowledge of quality of paper and that he came to know that paper supplied by plaintiff was defective after going through the quality report. He termed it correct that he could not tell by seeing the paper supplied by plaintiff that it was defective and that he came to know of it on the same day after going through the quality report. He then stated that quality report was generally received on the next day.
49. At this stage, DW-1 was again asked to clarify as to how he had come to know that paper was defective on the same day when the quality report came on next day. The DW-1 stated that his statement that report came on next date was correct.
50. He termed it correct that he had come to know day after receipt of the paper supplied by plaintiff and after going through quality report that paper supplied by plaintiff was defective and that he did not have any personal knowledge regarding the quality of the paper.
51. During his further cross-examination, the DW-1 deposed that he had not brought the original Minutes Book. He termed it correct that all the paper that was ordered to be supplied was supplied by the plaintiff company. He termed it incorrect that all the paper which was supplied by plaintiff company was CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 23 / 38 checked by the concerned official from the purchase department before it was received by the defendant company. He further termed it incorrect that the paper supplied by plaintiff company was in proper condition as per order placed by the defendant company.
52. The DW-1 further deposed that a mail was sent by defendant company to the plaintiff company with respect to defective paper. He was, however, not aware if copy of said email had been placed on record or not. He denied the suggestion that no email had been sent by defendant company or that it is the plaintiff company which had sent mail to defendant regarding supply of paper. He denied that ledger account filed by plaintiff is correct since the plaintiff had given adjustment for defective paper also in it.
53. During his further cross-examination, the DW-1 deposed that he was not aware if Sh. Neeraj Jain and Sh. Himanshu Jain, employees of plaintiff, had visited the defendant company for taking payment for paper supplied or that they had made entry in the visitors book of the defendant company during their said visit. A visitor book was, however, maintained at the defendant company.
54. The DW-1 denied that the whatsapp chats filed by defendant company were incomplete. When put Mark "P" i.e. print out of whatsapp chats from 24.05.2021 to 05.11.2021, the DW-1 expressed his lack of knowledge regarding the same.
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 24 / 38
55. During his further cross-examination, the DW-1 deposed that the defendant company was engaged in business of processing the paper with chemical. He was not aware if plaintiff company and defendant company continued their business transactions after 23.03.2021 and 27.03.2021. He denied that the defence taken by defendant that the goods supplied by plaintiff were defective was false or that it had been taken to avoid payment of dues of the plaintiff company. He termed it correct that neither any legal notice had been given by the defendant company to the plaintiff company nor any counter claim had been filed.
56. The DW-1 denied that defendant company did not suffer loss to the tune of Rs.4,79,174/- or that the genuine demand of the plaintiff company had been shown as a loss by the defendant company. He further denied that the GST number of plaintiff mentioned on the debit notes and credit notes filed by the defendant company was incorrect or that this was due to the fact that defendant had raised a false defence of defective goods. The DW-1 denied that even after giving benefit to the defendant company for defective goods, the plaintiff was entitled to recover a sum of Rs.4,99,206/- from the defendant company or that Sh. Rohan Aggarwal had undertaken to pay the said amount to the plaintiff company within 15 days.
57. During his further cross-examination, the DW-1 expressed his lack of awareness if the registered office of plaintiff company was at Kucha Mai Dass, Bazar Sita Ram, Delhi-06. He denied that defendant company agreed to pay CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 25 / 38 interest @ 24% per annum on delayed payment as the said term was mentioned on the invoices issued by the plaintiff company whereupon the goods were received by the employee of the defendant company. He further denied that there was a prevalent practice in their line of trade to charge interest @ 24% p.a. on delayed payment or that he had falsely stated in his affidavit that defendant company was liable to pay only a sum of Rs.39,837/- to the plaintiff company.
58. The DW-1 expressed his lack of awareness regarding reply, if any, sent by defendant to plaintiff company or if defendant company failed to participate in pre-litigation mediation proceedings.
59. The DW-1 could not state if the seller was informed of the purpose for which paper was purchased by the defendant company.
60. No other witness was examined on behalf of defendant.
61. Arguments were addressed by Ms. Rama Sharma, counsel for the plaintiff and Sh. Pankaj Chaudhary, counsel for defendant company. During the course of arguments, counsels for plaintiff and defendant reiterated respective averments made in the plaint and written statement and also referred to documents filed on behalf of respective parties as well as evidence adduced on record by them. They have also filed written submissions in support of respective averments made in the plaint and written CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 26 / 38 statement.
62. I have heard the learned Counsels for the parties and have also perused the record carefully and my findings on aforesaid issues are as under:-
ISSUE NO.1:-
Whether this Court has no territorial jurisdiction to try the present suit ? (OPD)
63. Onus of proving this issue was on defendant. Defendant has challenged the jurisdiction of the Court to entertain the suit of plaintiff inter-alia on the ground that defendant neither works for gain nor resides within the jurisdiction of this Court. Elaborating thereupon, it is stated that the defendant placed order from Greater Noida and that the orders were accepted at Greater Noida and that all bills were addressed to Greater Noida and all payments were received by plaintiff from Greater Noida. Even otherwise, it is contended that no cause of action has arisen within the jurisdiction of this Court and hence it cannot proceed with the matter.
64. Per contra, counsel for plaintiff has contended that plaintiff company is having its office at 2964, Kucha Mai Das, Bazar Sita Ram, Delhi-110006 and that defendant had placed orders for supply of goods at the said address and the bills were raised by plaintiff company from the said office. Part payments were credited in the account of plaintiff company situated at Delhi -110006 and hence this Court has jurisdiction to entertain CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 27 / 38 and decided the present suit.
65. Counsel for defendant has contended that no document has been placed on record by plaintiff from which it can be ascertained that order was placed with plaintiff at its office at Bazar Sita Ram. He has relied upon cross-examination of PW1 who stated that he was unable to state the place from where defendant had placed the purchase order or if the same had been placed from Greater Noida. He has also relied upon testimony of PW2 who during his cross-examination deposed that there was no mail from defendant in respect of all purchase orders and that few purchase orders that had been received were from Greater Noida factory.
66. It is noteworthy that the plaintiff has filed computer generated copies of invoices and the same have been exhibited as Ex.PW1/3 to Ex.PW1/18. The said invoices find mention of the address of plaintiff company as 2964, Kucha Mai Das, Bazar Sita Ram, Delhi-110006. These invoices have been admitted by the AR of defendant in his affidavit of admission/denial of documents filed in the Court on 10.04.2023. The ledger account statement of plaintiff, filed by defendant i.e. Ex.DW1/2 also finds mention of the address of plaintiff as 2964, Kucha Mai Das, Bazar Sita Ram, Delhi-110006. In view of the documents admitted by the defendant as also the documents filed by defendant itself, the defendant cannot be permitted to take a contrary view that it had no occasion to conduct business with the plaintiff at its address at 2964, Kucha Mai Das, Bazar Sita Ram, Delhi-110006 or that all its transactions with plaintiff were CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 28 / 38 confined to Greater Noida office of plaintiff only. Even otherwise defendant has not given any specific address of Greater Noida from which plaintiff was operating and carrying out its business. Thus there is no merit in the plea taken by the defendant that this Court lacks territorial jurisdiction to try the present suit. This issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2:-
Whether the AR of plaintiff is duly authorized to sign and verify the pleadings and to institute the suit on behalf of plaintiff? (OPP)
67. Onus of proving this issue was on plaintiff. The plaintiff has filed present suit through Sh. Puneet Tandon, its Account Executive, who is stated to have been authorized by virtue of Board Resolution dated 24.09.2022 i.e. Ex.PW1/2. The certificate of incorporation of plaintiff company has been proved as Ex.PW1/1. Since the plaintiff is proved to be a registered company, it can sue and be sued in its own name. The provisions of Order XXIX Rule 1 CPC then come into force enabling the secretary or any director or other principal officer of the corporation to either sign and verify the plaint on behalf of company or to authorize any other person to do so on behalf of the company by passing a resolution to this effect. This is clearly brought out by the following observations made by Hon'ble Supreme Court in para 10 of the judgment in case of United Bank of India vs. Naresh Kumar and Others 1996 VII AD SC CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 29 / 38 208 :-
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any.
As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
68. Although the defendant has challenged the Board Resolution Ex.PW1/2, no specific defect in the Resolution, and/or Ex.PW1/1 - certificate of incorporation of plaintiff company could be pointed out by Ld. Counsel for defendant. Further, a plea was also taken inter-alia on the ground that the plaint, documents, vakalatnama etc. had not been signed by the AR of the plaintiff, this plea was not found sustainable as it was CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 30 / 38 observed that it was only the copies supplied to the counsel for plaintiff whereupon the concerned AR had not signed.
69. It is accordingly held that Sh.Puneet Tandon who is working as Accountant in the plaintiff company has been duly authorized to sign and verify pleadings and to institute the suit on behalf of plaintiff company. This issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.3:-
Whether plaintiff is entitled to decree of recovery of Rs.6,29,657/- against the defendant, as prayed for? (OPP)
70. Onus of proving this issue was on plaintiff. The plaintiff is aggrieved by the fact that defendant failed to pay balance amount of Rs.4,99,206.60, outstanding in its account for supply of paper by the plaintiff, to the defendant. The plaintiff has placed on record copies of invoices vide which goods were supplied by it to the defendant and proved the same as Ex.PW1/3 to Ex.PW1/18. The statement of ledger account has been relied upon as Ex.PW1/46 to prove the amount outstanding against the defendant.
71. The defendant has admitted all the invoices i.e. Ex.PW1/3 to Ex.PW1/18, though the receipts of weighing of the material supplied and toll plaza receipts which have been exhibited as Ex.PW1/19 to Ex.PW1/32 and Ex.PW1/33 to Ex.PW1/44 respectively have been denied for want of knowledge. Even the statement of account Ex.PW1/45 has been CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 31 / 38 partly admitted with respect to entries reflected from defendant's statement of account Ex.DW1/2. The defence taken by defendant is that the goods supplied by plaintiff, that is the paper, was of bad quality and that on one occasion there was short supply of the goods by the plaintiff.
72. The plea with respect to poor/bad quality of paper was taken by the defendant in the first instance in the written statement. Specific invoices i.e. invoice no.1384 dated 23.03.2021 and 1415 dated 27.03.2021 were pointed out in respect of bad quality paper. Short supply of 20 kg paper was claimed in respect of goods/paper supplied vide invoice no.868 dated 29.12.2020. In response to these averments, the plaintiff stated in the replication that complaints by defendant with respect to quality of paper were duly obliged/fulfilled then and there. On the aspect of short supply, it was claimed that there was no occasion on which short supply/less quantity of paper/raw material was supplied by plaintiff to the defendant.
73. As observed in foregoing paragraphs, plaintiff has examined two witnesses namely Sh. Puneet Tandon and Sh.Himanshu Jain as PW1 and PW2 respectively.
74. The PW1, Sh. Puneet Tandon, is from the Accounts department. Though he could not depose with respect to the quality of paper supplied by plaintiff to defendant, he admitted that plaintiff had agreed to supply goods as per requirement and specifications given by the defendant. He also admitted whatsapp communications between official of defendant with Sh.Himanshu CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 32 / 38 Jain (subsequently examined as PW2 on behalf of plaintiff) as Ex.PW1/D2. He further admitted that defendant had made complaints on 22.02.2021 and 17.03.2021 with respect to quality of paper. The photograph of paper sent by defendant on 27.03.2021 was admitted but PW1 was unable to comment regarding the width of the paper. He also admitted whatsapp message dated 15.04.2021 whereby defendant had informed that 3.5 ton material was to be returned and that 1 ton material was farra. During his subsequent cross-examination, PW1 admitted that even though it had been averred in replication that whenever defendant raised issue with respect to supply of goods, the same were sorted/resolved then and there, nothing had been placed on record nor was he in position to explain the mode and manner in which the grievances of defendant were resolved. Even a written acknowledgement from defendant with respect to their grievance having been resolved by plaintiff was not available.
75. The PW2, Sh.Himanshu Jain, is a witness from the Sales Department of the plaintiff. He proved the emails dated 17.12.2021, 10.01.2022, 17.01.2022 and 09.02.2022, Ex.PW2/1 (Colly) sent by him, on behalf of plaintiff, asking defendant to pay the outstanding amount. During his cross-examination, PW2 also admitted that when defendant approached plaintiff for supply of paper, it was assured by plaintiff that raw material supplied by plaintiff to defendant would neither been torn nor cut and that its width would be as per requisite GSM and that defendant was assured that in case the raw paper supplied by plaintiff to defendant was torn or cut or was not of requisite GSM then the same would be taken back by the plaintiff. Although CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 33 / 38 PW2 contended that there could be variation of 5 in GSM in width of paper, he could not point out any document on record wherein such a variation had been agreed upon by the parties. Though he also contended that there was no mail from defendant with respect to defective quality, he admitted the whatsapp communications Ex.PW1/D2. He also admitted that he had sent a whatsapp message on 01.04.2021 stating "we will check shortly". Though he claimed that he had sent other whatsapp messages after April 2021 which had not been filed by defendant, he neither filed the same himself nor plaintiff took permission to file the same on record. These whatsapp messages/chats from 24.05.2021 to 05.11.2021 were later on put to DW1 during his cross-examination but since DW1 had no knowledge regarding the same, they were marked as Mark-P. The PW2 is the author of said whatsapp communications Mark-P, however, the said communications were never placed on record by the plaintiff and were not proved in accordance with law while examination of PW1 and PW2 and hence they are of no benefit to the plaintiff in proving its case against the defendant. Even otherwise, when read in totality, whatsapp communications 'Mark-P', do not shed any light with respect to the redressal of defendant's complaint regarding the quality of the paper supplied to it by the plaintiff but rather points toward demand for payment for goods claimed to have been supplied by the plaintiff to defendant but without reference to any specific invoice or ledger account statement.
76. The PW2, like PW1, admitted that there was no document on record from which it could be ascertained that all the grievances of defendant with respect to cuts, tears and CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 34 / 38 variance in GSM in raw paper had been sorted out.
77. Nothing could be brought out from the cross- examination of DW1 Sh.S.N. Singh that the grievance of defendant with respect to the quality of paper had been duly redressed by the plaintiff.
78. The only conclusion that can thus be drawn from aforesaid discussion is that even though plaintiff had supplied raw paper to defendant vide invoices Ex.PW1/3 to Ex.PW1/18, the defendant was not satisfied with the quality of goods supplied to it. Admittedly, plaintiff had assured defendant that it would be supplied good quality paper which would not be torn or cut and would be of appropriate GSM. The defendant made complaint to plaintiff that the quality of goods/paper supplied to it was not upto the mark on few occasions, as reflected for whatsapp communication Ex.PW1/D2. The plaintiff despite claiming that the said complaints were duly redressed and taken care off could not prove on record to have addressed the same. The short supply of goods, which too was denied by the plaintiff in replication stood admitted to have been so on few occasions, as it brought out from the testimony of PW1, when he admitted that entries with respect to "returned goods/short supply" had been shown as "purchase entries" in the ledger account. The defendant, on the other hand, claims to have suffered a loss in sum of Rs.4,79,174/- but since no counter claim has been filed by the defendant, the defendant is not entitled to recovery of the said amount. The defendant is thus liable to pay only a sum of Rs.39,837/- to the plaintiff as admitted by them in the written statement.
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 35 / 38
79. The counsel for plaintiff has relied upon judgments in case of Col. (Retd.) Dalip Singh Sachar vs. Major General (Retd.) Prabodh Chander Puri 141 (2007) DLT 209 (DB); Kalu Ram vs. Sita Ram 1980 RLR (Note) 44; TVC Skyshop Ltd. vs. Sahara Airlines Ltd. 2010 (171) DLT 10; SILICON Graphics Systems India Pvt. Ltd. vs. NIDAS Estates Pvt. Ltd. & Ors. 182 (2011) DLT 753; Dharampal Arora Vs. M/s Share Tips & Ors. 2010 V AD (Delhi) 190; Bhushan Steel & Strips Pvt. Ltd. vs. Bhartiya Loha Udyog Pvt. Ltd. 2010 (167) DLT 237; Ajanta Offset & Packaging Ltd. (M/s) vs. M/s Head Start Advertising & Marketing (P) Ltd. 2013 IV AD (Delhi) 605 and COIM India P. Ltd. Vs. Kurt O John Shoe Components (I) P. Ltd. & Anr. 202 (2013) DLT 73, as referred to in the written submissions filed on behalf of the plaintiff. The observations made in the cited judgments are relevant to the factual context referred to in respective cases and are not applicable in the facts and circumstances of the present case.
The counsel for defendant has also relied upon judgment in case of Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana, 2016 (2) Civil Court Cases 646 (SC); Maroti Bansi Teli vs. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60; AEG Carapiet vs. A.Y. Derderian AIR 1961 Cal.359, Kuwarlal Amritlal vs. Rekhlal Koduram & Ors. AIR 1950 Nagpur 83; Karnidan Sarda & Anr. vs. Sailaja Kanta Mitra, AIR 1940 Patna 683; Ramjas Foundation vs. Union of India (2010) 14 SCC 38; Kishore Samrite vs. State of UP (2013) 2 SCC 398; Dalip Singh vs. State of UP (2010) 2 SCC 114; Dhananjay Sharma vs. State of Haryana (1995) 3 SCC 757; New Okhla Industrial Development Authority vs. Ravindra Kumar CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 36 / 38 Singhvi Civil Appeal No.382/2012 decided on 15.02.2022 by Hon'ble Supreme Court and Harji Engineering Works Pvt. Ltd. vs. Hindustan Steelworks Construction Ltd. CS 212/2018 decided on 14.09.2021 by Hon'ble Calcutta High Court; S.P. Chengalvaraya Naidu vs. Jagannath AIR 1994 SC 853; Paramount Publicity vs. MCD 1995 I AD (Delhi) 91, Rohit Dhawan vs. G.K. Malhotra AIR 2002 Delhi 151, Columbia Sportswear Company vs. Harish Footwear CS (COMM) 1611/2016 decided on 28.04.2017; Micolube India Ltd. vs. Maggon Auto Centre 2008 (36) PTC 231 and M/s Seemax Construction vs. State Bank of India AIR 1992 Delhi 197 to assert that plaintiff has failed to cross-examine DW1 on material aspects and that witnesses of plaintiff have filed false affidavit and that the plaintiff concealed real and material facts. Since the testimony of the witnesses examined on behalf of parties as well documents and other material evidence relied upon by them has already been discussed at length in foregoing paragraphs, further examination of cross-examination of DW1/S.N. Singh and other evidence is not called for in the facts and circumstances of the instant matter.
This issue is accordingly decided in favour of the defendant and against the plaintiff.
ISSUE NO.4:-
Whether plaintiff is entitled for interest. If yes, at what rate and for which period? (OPP)
80. In the ledger statement account, Ex.DW1/2, filed by defendant for period from 01.04.2021 to 31.03.2022, a sum of Rs.39,837/- has been shown to be outstanding towards plaintiff.
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 37 / 38 Further the last payment appears to have been made by defendant to the plaintiff on 27.08.2021. The admitted amount of Rs.39,837/- has not been paid by defendant to the plaintiff despite considerable lapse of time even though it was shown outstanding in the ledger account statement Ex.DW1/2. By not making the payment in time, the defendants deprived the plaintiff from utilizing the amount of Rs.39,837/- and hence defendants are liable to compensate the plaintiff by paying interest on the due amount. The rate of interest of 24% p.a. claimed by plaintiff appears to be on higher side. The interest of justice would be met if plaintiff is awarded simple interest @ 12% p.a. on the principal amount of Rs.39,837/- from the date of last payment i.e. 28.08.2021 till realization of the decreetal amount. Ordered accordingly.
R E L I E F:-
81. In view of the findings on forgoing issues, I hereby pass a money decree in the sum of Rs.39,837/- (Rupees Thirty Nine Thousand Eight Hundred Thirty Seven only) in favour of the plaintiff and against the defendant no.1 with simple interest @ 12% per annum on the principal amount w.e.f. 28.08.2021 till realization of the decreetal amount.
Proportionate cost of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room after due
compliance. Digitally signed
ILLA by ILLA RAWAT
Date:
Announced in the open Court RAWAT 2023.11.28
on 28th Day of November, 2023. 16:43:22 +0530 (ILLA RAWAT) District Judge Commercial Court-03 Central District, THC, Delhi.
CS (COMM) No.2585/2022 M/s MLM India Ltd. Vs. M/s Sampark Industries Ltd. & Ors. Pg. 38 / 38