Delhi District Court
I.P. Engineering Contract Co. Pvt Ltd vs M/S Ridhima Overseas Pvt Ltd on 23 October, 2008
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IN THE COURT OF SH. M.K.GUPTA, ADJ,
TIS HAZARI COURTS,
DELHI.
Suit No. 100/06
I.P. ENGINEERING CONTRACT CO. PVT LTD
HAVING ITS REGISTERED OFFICE AT
F-28, HAUZ KHAS ENCLAVE,
NEW DELHI. ....Plaintiff
VERSUS
M/S RIDHIMA OVERSEAS PVT LTD
790, PHASE V, UDYOG VIHAR,
GURGAON HARYANA
REPRESENTED BY ITS
MANAGING DIRECTOR .....Defendant
DATE OF INSTITUTION :- 02.05.2006
DATE OF DECISION :- 23.10.2008
JUDGMENT
1. By this judgment I shall decide the suit filed by the plaintiff against the defendant for recovery thereby alleging that the plaintiff company has been in the business of manufacture and sale of fabrics and the plaintiff company 2 has various establishments and also has a factory at Gurgaon where the fabric is manufactured.
2. The plaintiff further alleged that the defendant company approached the plaintiff company in the month of September 2002, for the purchase of fabric and the plaintiff agreed for the same and since then the plaintiff has been regularly supplying the fabric to the defendant against duly raised bills and invoices and the defendant has been making payments on account against the said purchases.
3. The plaintiff further alleged that at the relevant point of time one Mr. G. D. Sharma, whose services had been availed by the plaintiff as consultant has also been dealing in the operation part of the plaintiff company.
4. The plaintiff further alleged that on 31.3.2004 while the accounts of the plaintiff company were being audited it was revealed that as on that date, a sum of Rs. 4,80,646.16 was outstanding to be paid by the defendant to the plaintiff against the purchases of the fabric by the defendant from the plaintiff company.
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5. The plaintiff further alleged that the plaintiff contacted the defendant who stated that the accounts were to be reconciled by the both the parties, since there were disputed bills and the plaintiff agreed for the same and the officials of the plaintiff handed over the detailed statement of accounts relating to the entire transaction of the plaintiff with the defendant including the details of the receipts of payments till date and the outstanding dues to be paid by the defendant .
6. The plaintiff further alleged that the defendant company stated that there are debit notes to the line of Rs. 2,16,635.16 and that the same were not reflected in the accounts and also that the said amount should be reduced from the outstanding dues and it is relevant to submit that these information were alleged to have been communicated through Mr. G. D. Sharma, who had by then been terminated from the services of the plaintiff on the grounds of misappropriation and falsification of records.
7. The plaintiff further alleged that the plaintiff with a 4 view to put a finality to the matter agreed to look into the matter of the alleged debit notes for Rs. 2,16,635.16 and that on scrutiny of the record the plaintiff found that there was an entry relating to the alleged debit notes under the heading of under dispute and this fact was conveyed to the defendant during the personal meeting with the defendant however the director of the defendant company stated that they were willing to settle the matter if the said amount was reduced from the outstanding dues and also that they needed the balance confirmation certificate duly signed by the plaintiff company relating to the final figure of Rs. 2,64,010. Thus the plaintiff at this juncture decided for one time settlement and agreed to waive off the amount on account of the alleged debit notes and also proposed themselves to reduce the sum of Rs. 16,835/- being 50 % against the bill no. 1159 dated 27.2.2003 which was claimed as not received by the defendant during the reconciliation of account of both the parties.
8. Thus the plaintiff alleged that the new balance 5 confirmation certificate dated 13.10.2004 was issued for Rs. 2,47,175/- after waiving of the amount of the disputed debit notes on the condition that the one time settlement would be performed by the defendant and the payment of the dues would be released within 24 hours of the receipt of the certificate and the agreed condition was that if this was not done, the benefit of the waiver of the disputed amount of the alleged debit notes would not be available to the defendant.
9. The plaintiff further alleged that to the surprise of the plaintiff, the defendant did not make the payment of the amount agreed as one time settlement, even after receipt of the confirmation certificate and the plaintiff company tried to contact the defendant, but the director of the defendant who is the competent official kept on giving vague excuses that the payment would be done shortly.
10. The plaintiff further alleged that finally seeing no positive response from the defendant to comply with the proposal of one time settlement as agreed, the plaintiff withdrew the benefit of waiver of the disputed amount and 6 called upon the defendant to clear the outstanding dues of the entire amount of Rs. 4,80,646.16 to the plaintiff.
11. The plaintiff further alleged that to the shock of the plaintiff, a fax message was received from the defendant stating that the said dues payable to the plaintiff had been adjusted against the payments made to one BD Yarn Pvt ltd and Alpex Exports by the defendant.
12. The plaintiff further alleged that by letter dated 10.12.2004 the plaintiff wrote to the defendant that the company was not involved in any deal with the alleged two companies and hence such adjustments are incorrect and the defendant was requested to release the long outstanding payments to the plaintiff.
13. The plaintiff further alleged that the plaintiff received a letter dated 15.12.2004 claiming that Mr. Alpex Exports pvt ltd is part of the plaintiff company and that Sh. G. D. Sharma, has taken the monies as alleged advance for fabric with the promise to supply the dyed yarn and had not in fact supplied the same.
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14. The plaintiff further alleged that the plaintiff immediately contacted the defendant and brought to their notice that they were aware that Sh. G. D. Sharma, had no business dealings with the plaintiff since he had been terminated in July 2004 and moreover all payments till date owed to the plaintiff could not be adjusted against any other account.
15. The plaintiff further alleged that plaintiff again received a letter dated 25.12.2004 from the defendant stating that they had no written information that Mr. G. D. Sharma, was not working with the plaintiff and that he had been visiting the factory of the defendant to negotiate on behalf of the plaintiff and that the defendant can not adjust the dues acknowledged payable by the defendant to the plaintiff against any other account more so, the ones with which the plaintiff has no nexus or connection whatsoever, and the plaintiff had got issued the legal notice to the defendant calling upon them to make the payment but the defendant did not comply with the same and hence the suit. 8
16. The summons were issued against the defendant for appearance on 06.07.2006 then again for 29.8.2006 then again for 14.7.2006 but the summons issued by ordinary process as well as by way of regd. a/d post could not be served and received back with one report or another and thereafter the defendant was directed to be served by way of publication in the newspaper ''The Statesman''
17. The record further shows that the defendant was served by way of publication in the newspaper '' The Statesman'' dated 4.12.2006 for appearance on 9.1.2007 but none appeared on behalf of defendant on the said date and thereafter and hence the defendant was proceeded exparte vide order dated 9.1.2007.
18. After the defendant was proceeded ex-parte, case was fixed for evidence of the plaintiff and the plaintiff in order to prove the case tendered the affidavit dated 27.1.2007 and additional affidavit dated 24.5.2008 of Sh. S.S. Rana, the authorized representative of the plaintiff company in evidence and his oral statement was recorded as PW1. 9
19. The plaintiff company also tendered in evidence the affidavit of Mrs. Radha Oberoi ( PW2 ) who is the director of plaintiff company and she proved her affidavit as Ex. PW 2/A.
20. PW1 Col. ( Retd. ) Sh. S.S. Rana in his deposition before the court proved his affidavits as Ex. PW1/A and PW 1/B respectively and also proved various documents in support of the case of the plaintiff.
21. Copy of resolution dated 8.4.2006 passed by board of directors in their meeting in favour of Sh. Sanjay Mehrotra who has signed, verified and instituted the suit is proved as Ex. PW 1/1. the office copies of the bills/invoices are proved as Ex. PW 1/2 (1-147). Copy of statement of account relating to the sale of the fabrics to the defendant and the receipts of payments by the defendant on account are proved as Ex. PW 1/3 (1 to 8 ).
22. Copy of statement of outstanding amount is proved as Ex. PW 1/4 ( 1 to 7 ). Copies of correspondence between the parties is proved as Ex. PW 1/ 5 ( 1 to 3 ). Copy of demand 10 letter send by the plaintiff to the defendant thereby demanding an amount of Rs. 4,80,646.16 is proved as Ex. PW 1/6. Copy of fax message received by the plaintiff company which was sent by the defendant is proved as Ex. PW 1/7 which to the effect that the defendant has adjusted the outstanding amount against the payment made to one BD Yarn PVT Ltd. and Alpex Exports.
23. PW 1 further proved copy of letter dated 10.12.2004 written by the plaintiff to the defendant to the effect that it has no concern with these two firms and the copy of letter is proved as Ex. PW 1/8 .
24. PW 1 further proved copy of another letter dated 15.12.2004 sent by the defendant to the plaintiff to the effect that M/s Alpex Exports Pvt Ltd. is a part of plaintiff and that Sh. G.D. Sharma has taken the monies as alleged advance for fabric with the promise to supply dyed yarn and infact had not supplied the same and the letter received by the plaintiff is Ex. PW 1/9. PW 1 further proved another letter dated 25.12.2004 from the defendant to the effect that 11 the defendant had no written intimation that Sh. G. D. Sharma, was not working with the plaintiff and that Sh. G. D. Sharma had been visiting the factory of the defendant to negotiate on behalf of the plaintiff and the said letter is proved as Ex. PW 1/10.
25. Counsel for plaintiff argued vehemently that the case of the plaintiff stands proved against defendant in view of unrebutted and unchallenged testimony of both the Pws of the plaintiff which have remained consistent throughout and I do not find any infirmity therein and no reason to disbelieve the same in view of various documents proved on record by the witnesses of the plaintiff.
26. In the light of above discussion, case of the plaintiff stands proved against the defendant. I accordingly decree the suit of the plaintiff and a decree of recovery of Rs. 4,80,646.16 along with costs of the suit is passed in favour of the plaintiff and against the defendant. The plaintiff is also entitled to recover pendente lite and future interest @ 12 % p.a. till realization of the decreetal amount. After 12 preparation of decree sheet, file be consigned to record room. Announced in the open court today i.e 23.10.2008 (M.K.GUPTA) ADDL. DISTRICT JUDGE DELHI 13 SUIT NO 100/06 23.10.2008 Present :- Counsel for plaintiff .
None for the defendant who is already ex-parte. Vide separate judgment suit of the plaintiff is decreed. After preparation of decree sheet, file be consigned to record room.
ADJ/DELHI 23.10.2008 14