Delhi District Court
M/S Milhard Sales Pvt. Ltd vs M/S Delphi Automotive Systems Pvt. Ltd on 5 July, 2011
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IN THE COURT OF MS. MANU VEDWAN, CIVIL JUDGE,
CENTRAL01, DELHI
SUIT NO. 446/09
M/s Milhard Sales Pvt. Ltd.,
Through its Authorized SignatoryCumAccountant,
Having its Regd. Office at :
4772, Hauz Qazi, Inside Ajmeri Gate,
Delhi110006. ..........Plaintiff
VERSUS
M/s Delphi Automotive Systems Pvt. Ltd.,
Through its Principal Officer/Director,
Having its Regd. Office at:
Plot No.3, Sector4, Kasna,
Distt. Gautambudh Nagar, Greater Noida (U.P.). ...........Defendant
Date of Institution : 02.05.2009
Date of Judgment : 05.07.2011
EXPARTE J U D G M E N T
1.Vide this exparte judgment, I shall decide the suit for recovery of Rs.1,18,161/ alongwith interest @12% p.a. pendentelite and future interest till realisation.
The material facts germane to the present suit as culled out from the plaint are as follows:
2. It is submitted in the plaint that the plaintiff is a Private Limited Company registered under the Indian Companies Act and having its registered office at 4772, Hauz Qazi, Delhi110006 and deals in manufacturing and trading of tools and equipments and Suit No. 446/09 Page No.1/6 :2: also deals in import and exports through Code No. 05910447977 and having its specialization in engineering tools, precision, measuring instruments, metal working tools, and workshop equipments and further more, the plaintiff is also the authorized distributor of Mitutoyo Precision Tools since long back.
3. It is further submitted that the defendant company through its agent/employee/representative/salesman/Director/principal officer/manager used to place the order for supply of various equipments / goods / articles to the plaintiff company either through the purchase order/s, letter/s, telephonically request, Fax or personally through its agent / employee / representative / sales man/ director / manager / principal officer at the registered address of the plaintiff company.
4. It is further submitted that the defendant company used to purchase the goods/articles equipments on credit as well as cash basis or also according to the general usage, norms and customs of the market. The defendant also used to purchase the goods/article/equipments by making the part payment either in cash, cheque or pay order through its agent/employee/representative/salesman/director/manager /principal officer or some time sent the part payment through the Courier/postal authorities by Cheque, Demand Draft, Pay Order against the bill/s so issued by the defendant company.
5. It is further submitted that the plaintiff further used to maintain the accounts of which the plaintiff company is the registered distributor and the goods/ articles/ equipments so purchased by the plaintiff and the goods/ articles/ equipments which were purchased by the defendant company from the plaintiff company. The defendant company lastly made the transaction with the plaintiff company on 11.09.06 and thereby Suit No. 446/09 Page No.2/6 :3: left the outstanding amount of Rs. 89,521.18 ps. (Rupees Eighty Nine Thousand Five Hundred Twenty One and Paisa Eighteen only) towards the total outstanding amount for the financial year ending on 31st March, 2007 as per the ledger, profit and loss account and statement of account of the plaintiff company.
6. It is further submitted that the plaintiff company through its agent/ employee/ representative/ salesman/ Director/ Manager/ principal Officer repeatedly, regularly and without any discontinuance had or has raised the demands either on telephonically, Fax, as well as by way of letters and reminders for the outstanding/balance amount for the defendant company but all in vain through the postal and courier authorities and agencies but the defendant company kept the matter under the negligence's and avoid on the each pretext instead of making the outstanding amount to the plaintiff company.
7. It is further submitted that when the plaintiff company left with no option but to issue a legal notice dated 29.11.2006 upon the defendant company by Regd.A.D and U.P.C. The defendant company has been duly served as presumed that no U.P.C. or sealed envelope sent by the plaintiff company through its counsel has been received back till date. The defendant company despite the fact that has been duly served and has the knowledge that there is outstanding amount is payable to the plaintiff has neither tender the payable amount to the plaintiff company nor has cleared the balance/outstanding amount to the plaintiff company.
On these ground, plaintiff has made the following prayer : "(a) That this Hon'ble Court may graciously be pleased to pass a decree Suit No. 446/09 Page No.3/6 :4: of recovery of a sum of Rs. 1,18,161/ (Rupees One Lac Eighteen Thousand One Hundred And Sixty One Only) in favour of the plaintiff company and against the defendant company with the pendentelite and future interest @ 12% per annum till the realization and recovery.
(b) Award the cost of the suit, litigation charges and misc. charges (including the typing, photocopies etc. and visiting charges of the plaintiff / AR of the plaintiff company to appear before this Hon'ble Court.
(c) Pass any other order/s or relief/s, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case/matter/suit in favour of the plaintiff company and against the defendant, in the interest of justice."
8. On account of the above facts and circumstances, the plaintiff instituted the plaint on 02.05.2009 and the defendant was served but none for the defendant was present thereafter the defendant was proceeded against exparte on 16.11.09 and the matter was listed for Exparte P.E.
9. Plaintiff got examined Sh. Dhan Raj Girdhar S/o Sh. Tara Chand, S/o Milhard Sales Pvt. Ltd, have its Regd. Office at 4772, Hauz Qazi, Inside Ajmeri Gate as PW1 and reiterated the same facts as are submitted in the plaint.
PW1 relied upon the following documents :
Ex.PW1/1 Resolution dated 23.04.2009.
Ex.PW1/2A Photocopy of GPA (OSR).
Suit No. 446/09 Page No.4/6
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Ex.PW1/3 (Colly) Copy of the statement of account w.e.f. 01.04.01 to
31.03.09 maintained by the plaintiff.
Ex.PW1/4 (Colly) Copies of letters dated 24,.07.06 and 27.04.06 along with
postal documents.
Ex.PW1/5 (Colly) Copies of emails dated 27.09.09 and 11.11.09 sent by the
defendant are obtained from the Internet.
Ex.PW1/6 (Colly) Copies of the letters dated 16.10.07, 14.04.06 and also
demanded the bill wise statement for the total
outstanding as on 31.08.08 vide letter dated nil.
Ex.PW1/7 (Colly) Copy of the legal notice dated 29.11.06 along with the
postal documents i.e. Receipt of Regd. A.D. and U.P.C.
10. I have perused the plaint and evidences produced by the plaintiff in support of his case and heard submissions on behalf of plaintiff. I have seen the point of limitation and jurisdiction, same is within limitation and jurisdiction of this court.
11. In plaint it has been mentioned that defendants have been purchasing goods / articles, equipments from plaintiff on credit as well as cash basis from time to time and outstanding amount has been shown by the plaintiff against the defendant as per open running account, for the said purpose and all entries pertaining to transactions between plaintiff and defendants have been entered into said running account.
12. After perusal of documents i.e. account statements which is Ex.PW1/3 (colly), emails [Ex.PW1/5 & Ex.PW1/6 (colly)], legal notice [Ex.PW7 (colly)] etc. placed on record on behalf of the plaintiff it is not clear as to how much quantity of a specific Suit No. 446/09 Page No.5/6 :6: quality of goods alleged to be delivered to defendant was ordered to be delivered by the defendant. Documents placed on record on behalf of the plaintiff are not sufficient to prove the alleged transactions between the plaintiff and defendant on point raised in previous lines.
13. Copy of legal notice placed on record also does not given any specific description and period of order which was alleged to be placed by the defendant even if it is presumed that it was an open order and defendant was at liberty to place the order as and when he required the material mentioned in plaint then also at least there should be the existence of a preliminary contract between the plaintiff and defendant pertaining to these terms and conditions and specification etc. of goods to be delivered for a particular period.
14. In view of the above mentioned discussion, emails and various letters which are Ex.PW1/4, Ex.PW1/5 & Ex. PW1/6 (colly) respectively placed on record by the plaintiff can be of corroborative nature pertaining to any contract if entered between the parties but can not be of substantive nature to show alleged transactions. Plaintiff has miserably failed to prove his case as the contractual relationship has never been proved in view of the Evidence Act by the plaintiff, so, the suit is hereby dismissed. Decree Sheet be prepared accordingly. File be consigned to record room.
(ANNOUNCED IN THE OPEN COURT) (MS. MANU VEDWAN)
ON 5th OF JULY, 2011 CIVIL/JUDGE/CENTRAL01
ALL PAGES SIGNED DELHI
Suit No. 446/09 Page No.6/6