Full Text
HIGH COURT OF DELHI
M/S M.R. JUNEJA I & S(P) LTD ..... Plaintiff
Through: Mr. Rajesh Banati, Mr. Ashish Sareen, Mr. Ankit Banati and Mr. Harsh Gupta, Advocates
Through: None
JUDGMENT
1. The instant suit has been filed on behalf of the plaintiff for recovery of Rs. 1,49,39,832/- (Rupees One Crore Forty Nine Lakhs Thirty Nine Thousand Eight Hundred and Thirty Two Only) alongwith mandatory injunction, inter-alia seeking the following reliefs: “a) Pass a decree for recovery of Rs. 1,49,39,832/- (Rupees One Crore Forty Nine lacs Thirty Nine Thousand Eight Hundred & thirty two only) in favour of the plaintiff and against the defendants alongwith future and pendentelite interest @ 18% p.a. from the date of filing of suit till realization. b) Pass a decree of mandatory injunction thereby directing the direct the defendant no. 1-4 to issue form No. 3B to the Plaintiff. c) Award costs of the suit in favour of the plaintiff and against the defendants; d) Pass any other and further relief which this hon'ble court may deem fit and proper under the circumstances of the case.”
2. The captioned suit filed on behalf of the plaintiff was originally numbered as CS(OS) 2502/2008. Since, the value of the instant suit was more than Rs. 1 Crore, therefore, the said suit was renumbered as CS(COMM) 1604/2016 vide order dated 5th December, 2016.
FACTUAL MATRIX
3. The plaintiff company is duly registered under the provisions of the Companies Act, 1956 engaged in the business of trade and supply of Irons, Ingots, Billets, etc.
4. The defendant No. 1 is a private limited company having defendants No. 2 to 4 as its Directors.
5. The defendant No. 5 i.e., the State Bank of Bikaner and Jaipur is a statutory body established under the provisions of State Bank of India (Subsidiary Bank) Act, 1959. However, since, no specific relief was sought against the defendant No. 5, the learned counsel appearing on behalf of the plaintiff withdrew the suit qua defendant No. 5 as it was only impleaded as a defendant since the amounts of defendants No. 1 to 4 were lying in its account.
6. The parties, i.e., the plaintiff and defendants No. 1 to 4 are associated by way of a business transaction linked to the supply/selling of various commodities related to the business of the plaintiff.
7. In adherence to the transaction above, the plaintiff supplied the goods to the defendant, subject to the condition that it shall make the payments of the supplied goods within 30 days.
8. The genesis of the dispute stem from the non-payment of Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred and Thirty Two only) with respect to the goods supplied to the defendant company by the plaintiff.
9. Being aggrieved by the actions of the defendants the plaintiff instituted the instant suit before this Court to recover the said amount alongwith interest for the services supplied to the defendants.
10. The instant suit came up for hearing before this Court on 2nd December, 2008 whereby the Predecessor Bench of this Court was pleased to issue summons of the instant suit to the defendants.
11. The defendant No. 2 via its legal attorney entered his appearance on 15th April, 2009 and sought time to file reply to the instant suit. It has been also recorded that the summons to defendant No. 1 remain unserved on the note “…no one to receive”.
12. It is matter of fact that the defendant No. 1 is a company that falls under the category of a juristic person. Thus, the same warrants to be represented through its directors and since the defendant No. 2 was a director of the same at the relevant time, i.e., when the transactions were carried between the parties, therefore, the service of the summons upon the defendant No. 2 was deemed service upon defendant No. 1 company.
13. In view of the foregoing facts, it shall not be wrong to mention herein that the service of summons upon all the defendants was duly completed. Despite the same, the defendant No. 1 company chose to remain silent upon the dispute in question and did not file written statement to the instant suit.
14. Furthermore, perusal of the orders passed by this Court in instant matter clearly establish the lackadaisical approach of the defendants towards the instant suit. It is further observed that despite numerous opportunities the defendants No. 3 and 4 failed to file their reply to the instant suit.
15. In light of the facts stated above, the Predecessor Bench of this Court vide order dated 10th October, 2013 proceeded the matter ex parte against the defendants. The relevant extract of the said order is reproduced hereunder: “None is present on behalf of defendants No. 1 to 4. They are proceeded ex parte. Learned counsel for the plaintiff submits that there are certain acknowledgments of debt which have been issued by defendants No. 3 and 4 acting as directors of defendant No. 1.” SUBMISSIONS Submissions on behalf of plaintiff.
16. Learned counsel appearing on behalf of the plaintiff submitted that the plaintiff had supplied goods and materials as demanded by the defendants No. 1 to 4. It is further submitted that against the said supply the bills/ invoices were raised by the plaintiff upon the defendants.
17. It is submitted on behalf of the plaintiff that according to regular accounts maintained by the Ghaziabad Branch and Muzaffarnagar Branch, the defendants owe the plaintiff an amount of Rs. 78,88,185/- (Rupees Seventy Eight Lacs Eighty Eight Thousand One Hundred and Eighty Five only) and Rs. 24,15,147/- (Rupees Twenty Four Lacs Fifteen Thousand One Hundred and Forty Seven only), respectively.
18. It is further submitted that the materials/goods were supplied to the defendants with the stipulation that payment be made within 30 days and that interest of 18% per year will be added in event of a delay. Furthermore, the defendants were also obligated to produce statutory forms for sales tax (Form no. 3B), in the absence of which the plaintiff had to pay tax and penalty.
19. It is submitted on behalf of the plaintiff that the defendant has failed to clear the outstanding dues to the tune of Rs. Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two Only) pending as of 31st March, 2008.
20. It is submitted that in the account that was maintained by the defendant, bearing no. 5105548052 CC A/c with the State Bank of Bikaner & Jaipur, G-72, Connaught Place, New Delhi, and a sum of Rs. 4,50,00,000/- (Rupees Four Crores Fifty Lacs only) was lying therein. It is further submitted that there is a willful abstinence of payment on the part of the defendant thereby, portraying their malice to defraud the plaintiff.
21. It is submitted on behalf of the plaintiff that the plaintiff has frequently requested the defendants to make the required payments and provide the necessary paperwork, but the defendants have ignored the plaintiff's requests and demands and have been delaying the case under various pretexts. In the light of plaintiff company's financial difficulties caused by the defendant’s withholding of funds, the directors of the plaintiff company alongwith various representatives even visited the office and house of the defendants, requesting them to clear the outstanding dues towards the plaintiff company. However, in the meeting held on 9th September, 2008 at the house of the defendant No. 3 and 4, the plaintiffs’ co-director, Sh. Ravinder Juneja smelled foul play, as it was gleaned from the intention of defendants No. 3 and 4, to conceal information.
22. It is submitted that the plaintiff issued the defendants with a legal notice dated 12th February, 2007 via Regd A.D./UPC. It is submitted that the notice was duly served upon the defendants, however, there was a failure to comply with the requisites of the notice.
23. In view of the submissions made above, the learned counsel appearing on behalf of the plaintiff submits that he is entitled to recover an amount of Rs. 1,49,39,832/- (Rupees One Crore Forty-Nine Lacs Thirty Nine Thousand Eight Hundred & Thirty Two only). The details of the said amount as submitted on behalf of the plaintiff are illustrated hereunder: Principal Amount (Balance) Rs. 1,03,03,332/- Interest @ 18% per annum (Period of Interest: 31st March, 2006 to 1st September, 2008) Rs. 46,36,500/- Total Amount Rs. 1,49,39,832/- Contentions raised on behalf of defendant no. 2
24. Though the defendant No. 1 to 4 have been proceeded ex-parte in the instant suit vide order dated 10th October, 2013, however, this Court finds it imperative and appropriate to record the contentions forming the part of the record. The perusal of the same leads this Court to record the following contentions: i. It has been contended that the plaint of the plaintiff is false, misconceived and without any merit. It is submitted by defendant NO. 2 that there has been a concealment of material facts on the part of the plaintiff. ii. It is contended that the present suit has no footing of its own to stand the ground of maintainability and therefore, is liable to be dismissed with cost. iii. It is further contended that the quantum period of payment of 30 days as stated by the plaintiff is concocted and fallacious as the parties never entered into any such agreement. iv. It is contended that defendant No. 2 only served in the capacity of a director to the defendant No. 1 Company and therefore, is not accountable for the alleged outstanding dues. v. It is further contended that the plaintiff supplied the materials to defendant No. 1 from 7th November, 2005 upto 16th December, 2005. Subsequent to the transaction for the goods, bills in respect of same were raised from Naraina, New Delhi Office and defendant No. 1 had duly complied with the payment of the said bills. vi. It is contended that due to the lesser quality of goods that were supplied on 17th December, 2005, which was pertinently the last consignment, the parties executed a settlement qua the same for comparatively less payment for the said consignment. vii. It is further contended that the defendant No. 1 has not been the recipient of the goods as alleged qua the entries as orchestrated in the Muzaffarnagar (U.P) account by the plaintiff. viii. It is contended that the defendant No. 1 is not culpable to pay the alleged outstanding amount i.e., Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two only) and the interest thereon as alleged or otherwise. In consonance, the defendant No. 2 is not acquiescent to pay the alleged amount. ix. It is also contended by defendant No. 2 that there was no such demand for the payment of the alleged dues from the plaintiff. The defendants has never received any notice dated 12th February, 2007. x. In view of the contentions raised above, it is the ground of the defendant No. 2 that the present suit holds no merit and therefore, is liable to be dismissed with cost.
FINDINGS AND ANALYSIS
25. Heard the learned counsel for the plaintiff and perused the contentions raised by the defendant No. 2 via its reply, alongwith material evidence on record.
26. This Court finds it imperative to separate the issues involved in the instant suit in order to effectively adjudicate upon the same. The following are the issues that emerges from the facts of the instant case:
I. Whether the plaintiff is entitled to recover the amount of Rs.
1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two only) and whether the rate of interest as levied upon by the plaintiff on defendant is justified ?
II. If so, what shall be the rate of interest on the amount?
Whether the plaintiff is entitled to recover the amount of Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two only) and whether the rate of interest as levied upon by the plaintiff on defendant is justified?
27. The perusal of the material on record makes it crystal clear that the goods have been duly supplied to the defendants by the plaintiff in pursuance to their negotiations. Furthermore, against the said material/goods supplied to the defendants certain invoices were raised by the plaintiff that stood uncleared. Furthermore, there is no denial on part of the defendants to such documents. Despite numerous opportunities, the defendants failed to plead their case before this Court. Resultantly, this Court vide order dated 10th October, 2013 proceeded ex-parte against the defendants.
28. This Court while adjudicating upon the instant issue has perused the invoices raised by the plaintiff upon the defendant No. 1 and the statement of accounts to substantiate its claim amount that are deposed by way of evidence of Mr. Ajay Kumar (PW-1), Authorised Representative of the plaintiff company. Furthermore, as pleaded by the plaintiff during the course of arguments, the amount of Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two only) is outstanding upon the defendants excluding the interest. Moreover, out of the said amount, Rs. 78,88,185/- (Rupees Seventy Eight Lacs Eighty Eight Thousand One Hundred and Eighty Five only) is pending upon the defendant. The same can be verified from the Ledger Account statement maintained for the period of 1st April, 2007 to 6th September, 2008. Furthermore, scrutiny of the Ledger Account as maintained by the Muzzafarnagar Branch for the period of 1st April, 2005 to 31st March, 2006 reveals that an amount of Rs. Rs. 24,15,147/- (Rupees Twenty Four Lacs Fifteen Thousand One Hundred and Forty Seven only) is outstanding towards the defendant No. 1 company.
29. The instant issue further invites the attention of this Court towards the relevant provisions provided under the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”). The necessary statutory provisions required for adjudication of the instant dispute are reproduced hereunder: Order VIII Rule 3
30. A conjoint reading of Order VIII Rule 3, 4 and 5 of the CPC elucidates that the defendant is required to expressly address each charge of fact that has been conceded. Furthermore, there must be a specific and unequivocal denial of the content of each claim. The principal charges that constitute the basis of the suit should be dealt with and disputed in this manner. In accordance with Rule 5 of Order VIII of the CPC, any unaddressed facts are presumed admitted. This rule exempts the plaintiff from proving accusations stated in the suit, if they are not expressly or impliedly disputed. So, the rejection to acknowledge the facts must also be definitive and explicit.
31. The Hon’ble Supreme Court in its judgement titled as M. Venkataramana Hebbar (Dead) by LRS v. M. Rajagopal Hebbar & Ors. reported as (2007) 6 SCC 401 held as follows:
13. Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.”
32. Furthermore, this Court in its judgment titled as Asha Kapoor v. Hari Om Sharda; 2010 SCC OnLine Del 2592 held as follows:
33. In light of the foregoing discussions, it is crystal clear that the defendants had multiple chances to present their case before this Court, but they chose not to do so. This Court is of the finding that the plaintiff is entitled to recover the amount of Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two only). However, the plaintiff failed to place any substantial evidence on record to satisfy this Court with respect to the rate of interest i.e., 18% p.a. as levied by the plaintiff upon the defendant. Thus, this Court does deem fit to award the said interest on the principal amount to the plaintiff.
34. In view of the above-mentioned discussions the said issue is decided. If so, what shall be the rate of interest on the said amount?
35. Since, the Issue No. I is decided in affirmative, therefore this Court is of view that the plaintiff is also entitled to interest upon the said amount.
36. This Court finds it appropriate to further divide the rate of interest in two parts: Pendente-lite Interest Future Interest Pendente-lite Interest
37. Since, the instant suit was filed in the year 2008. Therefore, the plaintiff is entitled to recover an amount of Rs. 1,03,03,332/- (Rupees One Crore Three Lacs Three Thousand Three Hundred Thirty Two only) alongwith interest @ 6% p.a. as the pendente-lite interest from the date of institution of the suit till the date of pronouncement. Future Interest
38. The plaintiff is also entitled to a future interest on the said amount @ 6% p.a. from the date of pronouncement of the captioned judgement.
39. This Court further finds it appropriate to direct the defendants to pay the amount as specified in the abovementioned paragraphs within 3 months from the date of pronouncement, failure to which, the rate of interest on the said amount shall increase from 6% p.a. to 9% p.a.
40. With the aforesaid observations the instant suit is decreed.
41. The Registry is directed to draw up a decree sheet accordingly.
42. With the aforesaid directions, the instant suit stands disposed of along with pending applications, if any.
JUDGE MARCH 14, 2023 gs/ug