Delhi District Court
Ashok Kumar Jain vs Swati Agencies on 27 January, 2021
Link :https://delhidistrictcourts.webex.com/meet/ddc.vc.south12
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL COURT-2)
SOUTH DISTRICT, SAKET COURTS: NEW DELHI
CS (COMM) 303/2019
Ashok Kumar Jain ........Plaintiff
Proprietor of Creative Marketing
having office at 263-A, Hauz Rani Market,
Malviya Nagar, New Delhi-110017
versus
Swati Agencies ........defendant no. 1
184, 1st Floor, Opposite Haldiram Shops Galli,
Itwari, Nagpur, Maharashtra
Ashok Agarwal ........defendant no. 2
Authorized Signatory/MD/Director
184, 1st Floor, Opposite Haldiram Shops Galli,
Itwari, Nagpur, Maharashtra
both also at
B-2, Bajaj Wing, 3rd Floor, Mangwari
Commercial Complex, Sadar, Nagpur
Maharashtra-India
Date of institution : 26.09.2019
Date of arguments : 27.01.2021
Date of judgment : 27.01.2021
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JUDGMENT
1. This is a suit for recovery of Rs. 6,98,092/-. In brief facts of the case are that Ashok Kumar Jain-plaintiff is the proprietor of M/s Creative Marketing and running business of stockiest and distributor of the product having office at 263- A, Hauz Rani Market, Malviya Nagar, New Delhi -110017. Sh. Ashok Agrawal (defendant no. 2) is the Managing Director of M/s Swati Agencies (defendant no. 1) having power to operate the bank account and giving necessary directions on behalf of defendant no. 1 and to look after day to day working of defendant no. 1
2. It is the case of plaintiff that defendants placed the order to purchase products and other items etc., to the plaintiff in a huge quantity on time to time, in view of looking to the past relation with Sh. Purshotam Singh, who is Regional Sales Manager (RSM) of the defendants and work under the supervision of the defendants and he was authorized by the defendants to place the order of sale and purchase on behalf of the defendants. It is stated that on the order of defendant, plaintiff dispatched the goods at the address of defendant no. 1 who received the goods through transport company NITCO Logistics Pvt Ltd , the items were delivered at the address of the defendant no.
1. It is stated that invoice no. 58 was issued by plaintiff on 21.02.2019 which was duly approved and discussions with defendant no 2 and 3. It is stated that the Sh. Purhottam Singh (RSM) ordered under his signature on 22.02.2019 to the plaintiff to dispatch invoice list item about 69 at the address of Swati Agencies at Nagpur. It is stated that order was placed in writing by the defendant company through their representative which was delivered by the transport at the correct address of the defendant no. 1 and defendant no. 1 received entire goods/articles mentioned in the invoice from the transporter namely NITCO Logistic Pvt ltd.
23. It is the case of plaintiff that representative of defendant no. 1 and 2 namely Sh. Purshotom Singh (RSM) was known to plaintiff since long time and he was introduced to defendant no. 2 for sale and buy the product from plaintiff. It is stated that defendant no. 1& 2 were the customer of the plaintiff since August 2018 and defendant no. 1 & 2 placed the orders to plaintiff for supply of the goods/product because of the good relation with plaintiff. Sh. Purshotam Singh (RSM) , dispatched the product at the address through transport agency NITCO Logistics Pvt ltd. vide invoice no. 0310729 dated 21.02.2019 vide invoice no. 58 dated 21.02.2019 amounting to Rs. 6,34,692/-. It is stated that as per assurance of the defendants, the plaintiff supplied the goods to defendants as per their demand but defendant failed to pay the payment against the said goods to the plaintiff.
4. It is stated that as per the statement of account of plaintiff w.e.f 01.04.2018 to 31.03.2019, it was found that outstanding amount of Rs. 6,34,692/- as lying against the defendants in the statement of account of the plaintiff. It is the case of plaintiff that he informed defendants personally as well as telephonically and defendants assured to plaintiff to wait for some time and thereafter, defendants requested plaintiff by mail on 04.04.2019.
5. On the assurance of defendant no. 2, plaintiff waited for payment 04.04.2019 to till date. Thereafter, plaintiff requested to defendant no. 2 vide mail dated 29.04.2019 for payment against the bill, defendant no. 2 replied the same on 14.05.2019 and regretted for the delay and sent mail .
6. It is stated that defendant no. 2 failed to clear the debt liability of plaintiff with the reason one pretext to another. Thereafter, defendant no. 2 started disconnecting the phone of plaintiff and not gave any heed to plaintiff. It is stated that defendant no. 2 had no courtesy to call back to plaintiff regarding the payment of the debt liability against the goods supply to defendant no. 1 vide invoice no. 58 dated 20.02.2019 which was duly received by defendants. It is 3 stated that the total amount of Rs. 6,34,692/- is to be recovered from the defendants.
7. It is the case of plaintiff that from the conduct of defendants, it is clear that defendants never wanted to pay the liquidate amounting to Rs. 6,34,692/- to plaintiff and cheated the plaintiff by way of giving the order in writing to dispatch the invoice items at the address of the defendant no. 1 and defendants received the entire goods and run away from their debt of liability, hence, defendants are liable to pay the liquidated amount alongwith interest @24% per annum with quarterly rests from the date the amount became due and payable together with agreed charges to the plaintiff and resorted to various types of delay tactics. It is stated that defendants made false assurances to plaintiff with a clear intent to defraud and committed an offence.
8. It is stated that defendant no. 1 & 2 connived with each other to cheat the plaintiff and they are liable to make the payment of Rs. 6,34,692/- with interest @ 24% per annum from the date of received of the goods i.e.. on 22.02.2019 and as per calculation from February 2019 to July 2019 comes about Rs. 63,400/-
9. It is averred that thereafter, plaintiff sent the legal notice dated 12.06.2019 to defendants vide postal receipt no. ED170030174IN; ED170030100IN and ED170030191IN dated 18.06.2019 which was delivered to respective addresses on 20.06.2019. It is stated that plaintiff sent the mail on various dates i.e. on 04.04.2019; 29.04.2019; 14.05.2019; 08.07.2019 to the defendants for clearing the debt of liquidate amount towards the supplied goods and on the reply of mail, defendants admitted the liability the debt. Since despite service of legal notice, defendants failed to pay the dues of plaintiff therefore, plaintiff preferred present suit for recover of Rs. 6,98,092/-
10. It may be noted that in this case before filing of suit, plaintiff had taken steps for pre-institution mediation and as defendants did not appear before Ld. Mediator, 4 Mediation Center, matter could not be settled and non-starter report is attached in this regard. Thereafter, defendants were served on 31.01.2020 and again on 18.03.2020. On 31.08.2020 Shri Ashok Aggarwal/defendant no. 2 had telephonically informed reader of this court through his telephone no. 9325803397 about his difficulty to join VC proceedings. He had furnished telephone number of his counsel, Shri Pradeep Agarwal which is 9370956000. Shri Pradeep Agarwal, counsel requested for supply of the copies of the plaint and documents and Ld. counsel for the plaintiff was asked to send the copies of plaint and documents to the counsel for defendants. On 26.09.2020 , Sh. Sunil Satyarthi counsel for plaintiff informed the Court that he had sent the copy of plaint and documents to the counsel for defendant no. 2 as well as to defendant no. 2- Managing Director/AR of defendant no. 1 company. It was directed that defendants might file WS within the stipulated time alongwith affidavit of admission/denial of documents and would supply the copy of the WS to counsel for plaintiff who may file replication, if desired.
11. Thereafter, on 07.11.2020 written statement was not filed by the defendants therefore, right of the defendants to file written statement was closed. As none has appeared on behalf of the defendants despite service, defendants were also proceeded exparte.
12. This Court has heard submissions advanced by Sh. Sunil Satyarthi Ld. counsel appearing for the plaintiff and has perused the material on record.
13. To prove its case, plaintiff examined Sh. Ashok Jain, plaintiff , who tendered his evidence by way of affidavit and relied upon consignee issued by the transporter namely NITCO Logistic Pvt ltd dated 21.02.2019 Ex. PW1/1; invoice no. 58 dated 21.02.2019 Ex. PW1/2 issued by the plaintiff duly endorsed by Sh. Purushotam Singh representative/Manager of defendant; statement of account maintained by the plaintiff w.e.f 01.04.2018 to 31.03.2019 Ex. PW1/3; email dated 29.04.2019 sent by plaintiff to the defendant no. 2 Ex. PW1/4 and reply of defendant dated 14.05.2019 ; legal notice dated 12.06.2019 alongwith postal receipts Ex. PW1/5; emails dated 04.04.2019; 29.04.2019; 14.05.2019; 08.07.2019 sent to the defendant Ex. PW1/6 and statement of 5 truth Ex. PW1/7 of plaintiff. It is relevant to reproduce Mail dated 04.04.2019 of defendant no. 2 which reads as under:
"Dear Sir, As I want to inform you that lots of ups and downs are going on in our company financially and also in other terms, as we are working hard to fix the problems but still we are not financially stable right now, we are extremely regretted for the inconvenience caused by us, this is not our intention to make you suffer, we are regretted for the delay but surely confirm you that we will do your payments at the earliest, this is quite tough time for us, we are not avoiding you by not picking up your call but we really don't want to give you wrong commitment, please do understand our concern, hope you understand and please cooperate with us. Please have patience we will make your payment asap. Warm Regards, Ashok Agrawal - MD Delight Industries."
14. It is further the case of plaintiff that on the assurance of defendant no. 2, plaintiff waited for payment 04.04.2019 to till date. Thereafter, plaintiff requested to defendant no. 2 vide mail dated 29.04.2019 for payment against the bill, defendant no. 2 replied the same on 14.05.2019 and regretted for the delay and sent mail which is reproduced as under:
"Dear Sir, we are regretted for the delay, but we are assuring you to make the payments till July, we will do the Part payments, as you know we are suffering from lots of ups and down in financial terms, but we assure you till July we will do the Payments on Priority basis, hope you understand and consider the same. Thanks and Regards, Delightful Beauty Accessories Private Limited and Delight Industries."
15. After hearing the submissions advanced and perusal of material on record, this Court finds that PW-1 has proved the averments of the plaint. This Court finds no reason to disbelieve testimony of PW-1 which has remained unchallenged and unrebutted. On appreciation of evidence on record, this Court is satisfied that plaintiff has proved its case. In the result , it is held that plaintiff is entitled to decree in the sum of principal amount Rs.6,34,692/- as per statement of account Ex.PW1/3.
616. Having regard to the lending rate of the bank in the commercial transaction, this Court is of the view that grant of 12% would serve the ends of restitutive justice. Plaintiff is entitled to the said interest from the date of filing of present suit till the realization of the entire amount. The present suit was filed on 26.09.2019 . Total number of 12 hearings have taken place in this case. Plaintiff shall also be entitled to costs. In the circumstances noted above, pleader's fee and litigation expenses are assessed as Rs. 12,000/- and Court fee deposited by the plaintiff is Rs. 9176/-. This Court finds that plaintiff is entitled to total costs of Rs. (inclusive of Court fees).
17. In the result, it is held that plaintiff is entitled to decree in the sum of claimed amount Rs.6,34,692/- alongwith interest @ 12.0% per annum from the date of filing of present suit till its realization and costs of Rs. 21,176/-(inclusive of Court fees). Decree sheet be prepared accordingly. File be consigned to record room.
VINAY KUMAR Digitally signed by VINAY KUMAR
KHANNA
(Dictated and announced on KHANNA Date: 2021.01.27 19:03:29 +05'30'
27th January 2021) (VINAY KUMAR KHANNA)
District Judge
(Commercial Court-02)
South District, Saket, New Delhi
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IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL COURT-2)
SOUTH DISTRICT, SAKET COURTS: NEW DELHI
Ashok Kumar Jain vs Swati Agencies
CS (Comm) 303/2019
27.01.2021
Present: Sh. Sunil Satyarthi counsel for plaintiff.
Defendants is already exparte.
Heard. Vide separate judgment, dictated and announced, this Court is satisfied that plaintiff has proved its case. In the result, it is held that plaintiff is entitled to decree in the sum of claimed amount Rs.6,34,692/- alongwith interest @ 12.0% per annum from the date of filing of present suit till its realization and costs of Rs. 21,176/-(inclusive of Court fees). Decree sheet be prepared accordingly. File be consigned to record room.
VINAY KUMAR Digitally signed by VINAY KUMAR
KHANNA
KHANNA Date: 2021.01.27 19:03:53 +05'30'
(VINAY KUMAR KHANNA)
District Judge
(Commercial Court-02)
South District, Saket, New Delhi/27.01.2021
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