Delhi District Court
M/S Swasthi Foods vs M/S Manu Enterprises on 20 September, 2021
IN THE COURT OF SHRI SANJAY SHARMAI :
DISTRICT JUDGE (COMMERCIAL COURT)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 372/2019
M/s Swasthi Foods
through its Proprietor Shri Vishal Gupta
4/180, Jwala Nagar, Shahdara
Delhi - 110 032 ................Plaintiff
Versus
1. M/s Manu Enterprises
Through its proprietor Shri Manu
S/o Shri DK Singh
1D, PocketC, SFS Flats,
Mayur Vihar PhaseIII,
Delhi110 096
2. M/s Parag Milk Foods Limited
3. Shri Bhaskar Sharma ................Defendant
Date of institution : 12.7.2018
Date of reserving judgment : 09.9.2021
Date of judgment : 20.9.2021
JUDGMENT:
The plaintiff has filed the present suit against the defendant for recovery of Rs.7,17,306/ alongwith pendente lite and future interest.
2. The plaintiff is a proprietorship firm which is dealing in wholesale and distribution of all kinds of dairy products and edible oils of various brands since 2008. Defendant No. 1 is also a proprietorship firm CS (Comm) No. 372/2019 Swasthi Foods Vs. Manu Enterprises & ors. 1 of 6 and its sole proprietor is Shri Radhey Shyam Aggarwal who is one of the distributor of defendant No. 2 and was engaged in supplying products to the plaintiff through defendant No. 3 since 06.11.2017 and there was privity of contract between the plaintiff and defendants No. 1 and 2, through defendant No. 3. It has been averred that defendant No. 3 used to take advance payments or payments after delivery of the products after procuring orders from defendant No. 1. It has further been averred that on 28.1.2018, products worth Rs.15,16,000/ were received by the plaintiff through defendant No. 3 and in lieu thereof, defendant No. 3 asked the plaintiff to make payment of Rs.8 lacs to defendant No. 1 besides making payment to three other distributors to the tune of Rs.19 lacs. It has further been averred that after 28.1.2018, a total sum of Rs.6,71,950/ stood due upon the defendant No. 1. However, a commission agent/transporter of defendant No. 2 namely Shri Rajesh Kumar, made a false complaint against the plaintiff at PS GTB Enclave due to nonpayment by the distributors including defendant No. 2 but when the plaintiff presented a written account of transaction before the Investigating Officer, the complaint was closed. Thereafter, the plaintiff ended its business relations with defendant No. 2 as well as defendant No. 1 and sent a legal notice to them. Defendant No. 1 sent reply dated 10.3.2018 to it. Hence the present suit.
3. Initially, the plaintiff filed the present suit against the defendant and also against M/s Parag Milk Foods Limited and Shri Bhaskar Sharma who were arrayed as defendants No.2 and 3 respectively. Defendant No. 2 deals in manufacture and sale of dairy products, while defendant No. 3 was an agent of defendant No. 2. Vide order dated CS (Comm) No. 372/2019 Swasthi Foods Vs. Manu Enterprises & ors. 2 of 6 01.10.2019, the names of defendants No. 2 and 3 were deleted from the array of parties and the suit continued against defendant No. 1. Amended memo of parties was filed accordingly.
4. Summons of the suit were issued to all the three defendants. None appeared for defendant No. 1 despite service nor any written statement was filed. Hence, defendant No. 1 was proceeded against ex parte. Defendants No. 2 and 3 put in appearance. Written statement was filed on behalf of defendant No. 2. However, the names of defendants No. 2 and 3 were deleted, as already discussed above.
5. The plaintiff led its exparte evidence and its proprietor Shri Vishal Gupta examined himself as PW1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents :
Ledger account maintained by the plaintiff firm with respect to the transactions with the defendant firm as Ex.PW1/1.
Bank statement of the plaintiff showing the transfer of funds as Ex.PW1/2.
Ledgers maintained by the plaintiff with respect to the transactions (except defendant) as Ex.PW1/3 (colly.).
Bank statement of the plaintiff showing the transfer of funds (except defendant) as Ex.PW1/4.
Bank statement of the plaintiff with respect to the transaction dated 28.1.2018 as Ex.PW1/5 (colly.).
Legal notice sent to the defendant as Ex.PW1/6 and relevant receipts as well as track reports as Ex.PW1/7 (colly.).
Reply dated 10.3.2018 received from the defendant as Ex.PW1/8 (colly.).
Certificate under Section 65B of the Indian Evidence CS (Comm) No. 372/2019 Swasthi Foods Vs. Manu Enterprises & ors. 3 of 6 Act with respect to the afore mentioned computer generated documents is Ex.PW1/9 signed by PW1 at point X and Y. He further examined Shri Hammir Singh - Branch Manager, Indian Bank (erstwhile Allahabad Bank), Anand Vihar, Delhi who proved certified copies containing details of transactions of the plaintiff.
6. I have heard Shri Akash Naval - Ld. Counsel for the plaintiff firm and have also gone through the records of the case as also the written submissions filed by Ld. Counsel for the plaintiff.
7. The evidence led by PW1 has gone unrebutted and unchallenged. The present suit of the plaintiff is based upon the bank statement of the plaintiff firm showing transfer of funds which have been proved as Ex.PW1/2 and Ex.PW1/5 (colly.). The said statements depict the various transactions made by it through cheque transfer in the name of defendant No. 1 which clearly show that the plaintiff and defendant No. 1 were having business deals from time to time. PW1 has further proved the ledger account maintained by it with regard to the money transfers and business transactions etc. to defendant No. 1 and the same has been proved as Ex.PW1/1. PW1 has also proved the bank statement Ex.PW1/4 and ledger account statement Ex.PW1/3 (colly.) but the same are with respect to another defendants whose names have been deleted from the array of the parties. The said bank statements as well as ledger account statements clearly show that an amount of Rs.6,71,950/ was due upon the defendant No. 1 which has not been paid till date. The defendant did not turn up to challenge the said statements, as proved by PW1 and PW2. Thus, it can be said that it had accepted the entire claim of the plaintiff.
8. The plaintiff also got served a legal notice upon defendant CS (Comm) No. 372/2019 Swasthi Foods Vs. Manu Enterprises & ors. 4 of 6 No. 1, copy of which has been proved as Ex.PW1/6 which was duly replied by it vide reply Ex.PW1/8 in which defendant No. 1 sought certain clarifications with regard to the name of the plaintiff. However, it abstained from filing any written statement to raise his defence and prove it and was thus, proceeded against exparte. Thus, the suit of the plaintiff is duly supported by the evidence led by it and the case of the plaintiff stands proved.
9. The plaintiff firm filed the present suit on 12.7.2018. Thus, the suit was filed within the period of limitation. This Court also has the pecuniary as well as the territorial jurisdiction to try and dispose of the present suit.
10. Though no condition was stipulated that delayed payment would entitle the plaintiff any interest and on the contrary, in the relief para of the plaint, the plaintiff has sought interest @ 18% per annum on the outstanding amount, w.e.f. 23.2.2018, i.e. the date of delivery of legal notice.
11. It is observed that there is no written contract on record between the parties regarding the rate of interest or even payment of interest but still interest can be awarded to the plaintiff in view of the judgment delivered in South Eastern Coalfields Limited Vs. State of Madhya Pradesh 2003 Law Suit (SC) 992 where in para 19, it has been held that :
"19. Interest is payable in equity in certain circumstances. The rule of equity is that interest is payable even in the absence of any agreement or custom to that effect through subject,of Course, to a contrary agreement (See: Chitty on Contracts, Addition 1999, Vol. II, Part 38248, at page 712). Interest in equity has CS (Comm) No. 372/2019 Swasthi Foods Vs. Manu Enterprises & ors. 5 of 6 been held to be payable on a market rate even though the deed contains no mention of interest. Applicability of the rule to award interest in equity is attracted on the existence of a state of circumstances being established which justify the exercise of such equitable jurisdiction and such circumstances can be many".
12. In view of the above, it is held that the defendant is liable to pay to the plaintiff a sum of Rs.6,71,950/ towards the outstanding balance amount. Keeping in view the above judgment and provisions of Section 34 CPC as well as the prevailing rate of interest in Nationalized Banks, I am of the considered opinion that the interest of justice would be served if interest @ 8% per annum is given on the principle outstanding amount of Rs.6,71,950/ to the plaintiff, from the date of filing of the suit till the date of realization of actual amount.
Accordingly, the suit of the plaintiff is decreed in its favour and against the defendant and it is directed that the defendant shall pay a sum of Rs.6,71,950/ to the plaintiff alongwith interest @ 8% per annum w.e.f. 12.7.2018, i.e. the date of filing of the suit, till the realization of the said amount. Costs of the suit are also awarded to the plaintiff. Decree Sheet be prepared accordingly.
File be consigned to Record Room. Digitally signed by
SANJAY SANJAY SHARMA-
ANNOUNCED IN OPEN COURT
I
SHARMA- Location: Delhi
I Date: 2021.09.20
ON 20th day of September 2021 13:35:52 +0530
(SANJAY SHARMAI)
District Judge (Commercial Court)
East District
Karkardooma Courts, Delhi
CS (Comm) No. 372/2019
Swasthi Foods Vs. Manu Enterprises & ors. 6 of 6