Delhi District Court
Through Its Authorized Representative vs Sh. K. Ganesh (Prop) on 3 June, 2022
IN THE COURT OF MS. KIRANDEEP KAUR:CIVIL JUDGE-05:
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI.
CSSCJ No.: 796/2018
T.T. Ltd.
Having its Regd. Office At:
879, Master Prithvi Nath Marg,
Opp. Ajmal Khan Park
Karol Bagh, New Delhi-110005.
Through its Authorized Representative
Mrs. Reetika Mahendra Rathore. ...Plaintiff
Versus
Sh. K. Ganesh (Prop),
M/s Anitha Marketing,
14, Huriopet, 2nd Floor,
N.R Complex, M.T Street,
D.K Lane, Chickpet Cross,
Bangalore-560023 ...Defendant
SUIT FOR RECOVERY OF Rs.63,117/-.
Date of Institution : 13.03.2018
Date of Final Arguments: : 17.05.2022
Date of Judgment : 03.06.2022
EX-PARTE JUDGMENT
1.Vide this judgment, I shall dispose off the present suit filed by the plaintiff, seeking recovery of Rs.63,117/- alongwith interest from due date of each invoice till date of filing of the present suit at the rate of 21% per annum and pendentelite and future interset @ 21% p.a.
2. The brief facts of the case, as per plaint, are as under:
T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 1/8
(a) The plaintiff is the limited Company duly
incorporated under the provisions of the companies Act 1956 having its registered Head Office at 879, Master Prithvi Nath marg, Karol Bagh, New Delhi-110005. The plaintiff company carrying on the business of manufacturing and supplying of fabrics, hosiery goods and cotton yarn etc. at the above said address. The present suit is being filed through its duly Authorized Representative Mrs. Reetika Mahendra Rathore, who is the duly authorized and competent to file their suit on the strength of the resolution dated 09.09.2017 passed by the Board of Director of the plaintiff company in her favour. Even otherwise, he is well acquainted and conversant with the facts and circumstances of the present case.
(b) Defendant approached the plaintiff at its corporate office and represented itself as proprietor of M/s Anitha Marketing, 14, Huriopet, 2nd Floor, N.R Complex, M.T Street, D.K Lane, Chickpet Cross, Bangaluru-560053 Karnataka M- 8050588613. Also at 88, 3rd Cross Choulurpalya, Magadi Road, Bangalore-560053 and requested to supply Hosiery material on credit basis. That the defendant assured the plaintiff that the payment of supplied goods would be made through cheques, which will be honored on presentation.
(c) Being on said assurance to be true, plaintiff agreed to supply goods on credit and under the business terms the plaintiff supplied the goods at the defendant place of business time to time as per the requirement of the defendant which were received by defendant on its firm name well in order.
(d) On 13th May, 2015 total outstanding bills against the
T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 2/8
defendant was for Rs. 63,117/- as per the books of accounts of the plaintiff. That the plaintiff requested the defendant several times either orally or through letters to discharge its liability and clear its dues but despite of repetitive request defendant failed to do so.
(e) Thus, being compelled by the circumstances plaintiff issued the Legal Notice dt. 05.06.2015 through courier as well as through speed post for the recovery of Rs. 68,205/-i.e. Rs. 63,117/- towards debit balance against the defendant along with interest @ 21% p.a from due date to each invoice till date of notice of Rs. 5,088/- but despite of said notice defendant failed to make the payment.
(f) Thus, defendant issued last and final notice dt. 07.07.2015 to the defendant to clear its dues. That the defendant malafidely return all the notices of the complaint and to discharge its full liability and in lieu of full payment defendant issued "at par" cheques no. 060397 dt. 24.08.2015 drawn on State Bank of India, Gandhi Nagar, Bangalore-5600009 for Rs. 63,117/- in favour of the plaintiff. It is pertinent to mention here that said cheques were payable at all CBS Branches.
(h) On request of defendant, the plaintiff presented the aforesaid cheque no. 060397 for payment through clearing on 24th August 2015 by plaintiff to its Banker i.e. State Bank of Hyderabad, Karol Bagh Branch but, the same was returned unpaid by the Bank with the remarks/reasons "Funds Insufficient" vide cheque returning memos dt. 25.08.2015. This fact was also brought to notice of the defendant by plaintiff but defendant failed to pay.
T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 3/8
(i) That being compelled by the circumstances plaintiff
issued the notice of demand u/s 138 of Negotiable Instrument Act 1881 through speed post as well as courier dt. 01.09.2015 thereby called upon the defendant to clear the dues immediately. The notice sent through speed post has deliberately returned by the defendant with remarks "Address Moved". That the plaintiff immediately searched defendant at its business place and at its residential address and come to know that the defendant had escaped from its place of business as well as from its residence. Moreover, plaintiff also come to know that he defendant firm has been blacklisted by Department of Sales and Tax. That despite of several efforts of the plaintiff defendant has failed to make payment.
(j) That as per the statement of running account duly kept and maintained by the plaintiff company, defendant is liable to make the payment of Rs.63,117/- towards Debit Balance against defendant along with interest 21% p.a from due date of each invoice till date of present suit. That the defendant is liable to pay further interest @ 21% p.a till date of actual payment.
(k) That the defendant failed to make the payment of aforesaid invoices despite repeated requests and demands made in their behalf, even the defendant failed to make any payment despite receipt of Legal Notices. Thus, defendant rendered themselves liable for the above said outstanding amount.
In this background, plaintiff has filed the present suit against the defendants for recovery of Rs.63,117/- alongwith interest from due date of each invoice till date of filing of the present suit at the rate of 21% per annum and pendentelite and T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 4/8 future interset @ 21% p.a.
3. Defendants were duly served by way of publication on 14.12.2019. However, despite service, defendant failed to appear. Accordingly, defendant was proceeded against ex-parte vide order dated 15.09.2020.
4. Sh. Prabhu Singh Rathore stepped into the witness box as PW1 and filed his evidentiary affidavit Ex.PW-1/A and relied upon the following documents:
i. Ex. PW-1/1 is copy of resolution.
ii. Ex. PW-1/2 is copy of statement of account of plaintiff
company.
iii. Ex. PW-1/3 is Certificate U/S 65-B of Indian Evidence
Act.
iv. Ex. PW-1/4 (colly) is copy of computer generated invoice
alongwith LR receipts.
v. Ex. PW-1/5 (colly) is copy of legal notice dt. 05.06.2015
alongwith tracking report.
vi. Ex. PW-1/6 (colly) is copy of legal notice dt. 07.07.2015
alongwith receipt.
vii. Ex. PW-1/7 is Certified copy of cheque no. 060397 dt.
24.08.2015 and return memo dt. 25.08.2015. viii. Ex. PW1/8 is certified copy of legal notice U/S 138 of N.I. Act dt. 01.09.2015 alongwith tracking report. ix. Ex. PW1/9 (colly) is certified copy of criminal complaint filed U/S 190/200 Cr. PC filed by the plaintiff against the defendant.
T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 5/8
5. The said witness was duly examined in chief and discharged. Vide separate statement of PW1 recorded on 17.05.2022, ex-parte PE was closed.
6. I have heard Ld. Counsel for the plaintiff and perused the case file carefully.
7. PW1 proved document Ex.PW1/1 whereby he was authorized to prosecute cases on behalf of the plaintiff. The plaintiff has placed on record computer generated invoice alongwith LR receipts in Ex.PW1/4 (colly) which also shows the dealing with the defendant and goods worth Rs.24,504/- and Rs.33,559/- were delivered to defendant. In order to prove its case, the PW-1 has filed certified copy of cheque and its return memo in Ex. PW1/7. Plaintiff has also filed statement of account in Ex.PW1/2 which is duly supported by certificate under Section 65-B of Indian Evidence Act, 1872, Ex. PW-1/3. Perusal of the statement in Ex.PW-1/2 shows that Rs.63,117/- is due from the defendant towards the plaintiff.
8. The defendant was served with a notices dated 05.06.2015 and 07.07.2015 alongwith its tracking reports which are Ex. PW-1/5 (colly) and Ex.PW1/6 (colly) respectively.
9. It has been held by the Hon'ble Supreme Court in judgment titled as Abdul Gaffar vs. DDA 2001 Rajdhani Law Reporter 249 that if a legal notice is given by a party, the same is not replied and contents not denied then, silence of the notice raises presumption against him.
T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 6/8
10. Thus, on the basis of the above law as well as Ex. PW1/5 and Ex. PW1/6, the factum of delivery of the said legal notice duly stands established and same raises a presumption against the defendant under Section 114 of the Indian Evidence Act, 1872 as it is a settled proposition of law that non denial or evasive denial amounts to an admission.
11. The documents Ex. PW1/4 i.e. computer generated invoice indicates that it has been executed at Delhi and the goods were supplied by the plaintiff to the defendant from Delhi office. Thus, this Court at Delhi has territorial jurisdiction to try the suit.
12. Since the defendants chose not to appear and contest the suit despite being served, the averments in the plaint as well as the documents filed in support of the plaint, have gone unchallenged. The testimony of PW-1 who proved the documents Ex. PW-1/1 to Ex.PW-1/9, has also gone unrebutted. As such, the court has no reason to disbelieve the same. In view of the above, the claim of the plaintiff as averred in the instant suit stands established. Thus, suit of the plaintiff is decreed in favour of the plaintiff and against the defendant and plaintiff is held entitled to recovery of sum of Rs.63,117/- from the defendant.
13. The plaintiff has sought pendent lite and future interest at the rate of 21% per annum from due date of each invoice till date of filing of the present suit. Since parties are in commercial relations, court is of the opinion that 9% interest p.a. T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 7/8 will suffice interest of the justice. Accordingly, plaintiff is held entitled to recover from the defendant an amount of Rs.63,117/- alongwith pendente lite and future interest at the rate of 9% p.a. from date of filing of the suit till realization of decreetal amount.
14. Suit of the plaintiff stands decreed alongwith costs of the suit.
15. Decree sheet be prepared accordingly on filing of deficient court fees, if any.
16. File be consigned to record room after due compliance.
Announced in the open court on 03.06.2022.
(Kirandeep Kaur) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment consists of 08 pages and each page is signed by me.
T.T. Ltd. Vs. K. Ganesh (Prop.) pg. no. 8/8