Final Order 19

Order Details: COPY OF JUDGMENT
Pdf Text: DLCT010010382024
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMM.) -01 : CENTRAL, TIS HAZARI COURTS, DELHI
CS (Com.) No. 140/2024
Smt. Seema Jain,
Proprietor : Sudershan Enterprises,
Regd. : 2815/2, Shree Ram Market,
Gali Peepal Mahadev,
Hauz Qazi, Delhi – 110006. .... Plaintiff.
Versus
Sh. Gurmeet Singh,
Proprietor of : Permax Engineers,
Pocket-2/24, Ground Floor,
Sector-24, Rohini,
New Delhi – 110085. .... Defendant.
SUIT FOR RECOVERY OF RS. 25,50,481/-.
Date of Institution : 23.01.2024
Date of reserving Judgment : 20.03.2025
Date of pronouncement : 01.04.2025
Suit (Com.) No. 140/2024 Page No. 1 of 8
Seema Jain Vs. Gurmeet Singh
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JUDGMENT
Vide this Judgment, I shall decide the suit for for recovery
of Rs. 25,50,481/- filed by the plaintiff against the defendant.
2. Brief facts as stated by plaintiff are that the plaintiff is the
sole proprietor of Sudershan Enterprises and is engaged in the
business of trading, purchasing, selling, importing, contracting,
distributing, stocking and dealing in various industrial metals and other
related items. Initially, the plaintiff has authorized Sh. Nishant Rawat to
be the AR in the suit of the plaintiff vide authority letter issued in his
favour. The defendant is the proprietor of Permax and is engaged in the
business of various industrial metals and other related items who
purchased goods from the plaintiff. It is stated that the defendant came
to the office of plaintiff and shows his willingness to purchase the goods
from plaintiff and all the transactions related to purchase of goods takes
place at the office of plaintiff at 28152/2, Shree Ram Market, Gali
Peepal Mahadev, Hauz Qazi, Delhi – 110006. The plaintiff issued
invoices and maintains ledger in its official record for the goods
supplied to the defendant. Initially the defendant made timely payments
but over time, the defendant began to delay the payments to plaintiff. It
is further stated that the defendant had purchased total material worth
Rs. 81,08,981/- and owes the plaintiff a total sum of Rs. 25,40,481/-
with accrued interest @ 18% per annum pertaining to the goods
supplied by the plaintiff. It is further stated that the plaintiff duly
requested the defendant to settle the outstanding balance but despite
repeated requests and personal visits, the defendant failed to make the
payment. Thereafter plaintiff approached DLSA for initiating Pre
Institution Litigation but the defendant did not chose to appear and the
non starter report was issued to the plaintiff on 12.1.2024. Hence, the
present suit has been filed by the plaintiff for recovery of said amount.
3. Summons of the suit were sent to the defendant however
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despite being duly served through publication, the defendant did not
appear before the court in person or through his counsel neither any
written statement was filed on his behalf. Hence, the defendant was
proceeded ex-parte vide order dated 29.1.2025. Thereafter, the matter
was fixed for ex-parte plaintiff's evidence.
4. In its evidence, plaintiff examined her AR Sh. Lalan Kumar
Jha as PW1 who led his evidence by way of affidavit as Ex. PW1/A and
has placed on record the documents Ex. PW1/1 to Ex. PW1/7.
Thereafter, plaintiff closed the ex-parte plaintiff evidence and the matter
was listed for ex-parte final arguments.
5. Arguments were heard from Sh. Satyarth Trilok Chand, Ld.
Counsel for the plaintiff. I have considered the submissions and have
gone through the record.
6. Ld. Counsel for the plaintiff has argued that the plaintiff has
sold the material to the defendant and was maintaining the accounts of
the goods supplied and payment received and as per the ledger of
accounts, a sum of Rs. 25,50,481/- is balance. The defendant has not
paid the said amount thus, he is liable to pay the said amount along
with interest @ 18% per annum.
7. I have considered the submissions and have gone through
the record.
8. The onus is upon the plaintiff to prove that she is entitled to
recover the suit amount and in order to prove the same, plaintiff has
examined her AR as PW1 who in his testimony has mostly reiterated
the averments in the plaint and placed on record the following
documents :-
1. Registration certificate of plaintiff as Ex. PW1/1.
2. Authority letter in his favour issued by plaintiff as Ex.
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PW1/2.
3. 22 invoices as Ex. PW1/3A to Ex. PW1/3V.
4. Ledger for the period 1.4.2013 to 22.10.2023 as Ex.
PW1/4 (4 pages).
5. Print out of e-mail dated 4.1.2021 as Ex. PW1/5.
6. Non starter report as Ex. PW1/6.
7. Certificate under Section 63 BSA as Ex. PW1/7.
9. Since the defendant was ex-parte therefore, the testimony
of PW1 is remained unchallenged and unrebutted. However, it is settled
law that the plaintiff has to prove her case as per law. From her
unrebutted testimony and documents mentioned above, plaintiff has
been able to prove that the plaintiff has sold the goods i.e. industrial
metal to the defendant as mentioned in invoices Ex. PW1/3A to Ex.
PW1/3V. Further, from ledger account statement Ex. PW1/4, I found
that an amount of Rs. 25,50,481/- is shown as balance against the
defendant as on 1.12.2020.
10. As per Article 14 of the Schedule of Limitation Act, in a
suit for recovery of money for goods sold and delivered whre no fixed
period of credit is agreed upon, the period of limitation is three years
from the date of delivery of goods. Section 19 of The Limitation Act
which are reproduced as under : -
“19.Effect of payment on account of debt or of interest
on legacy.—Where payment on account of a debt or of
interest on a legacy is made before the expiration of the
prescribed period by the person liable to pay the debt or
legacy or by his agent duly authorised in this behalf, a fresh
period of limitation shall be computed from the time when
the payment was made:Provided that, save in the case of
payment of interest made before the 1st day of January,
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1928, an acknowledgment of the payment appears in the
handwriting of, or in a writing signed by, the person making
the payment”.
11. As per the ledger Ex. PW1/4, the last payment has been
made on 9.11.2018. Since each sale transaction is an independent
transaction therefore suit for recovery of each sale transaction is to be
filed within three years of sale of goods unless part payment is made
which would further extend limitation period hence in my view, qua
recovery of amount of goods which were sold prior to 9.11.2018,
limitation period in normal circumstances would expire on 8.11.2021
however, in view of corona pandemic, period from 15.03.2020 to
28.02.2022 plus 90 days is to be excluded while counting period of
limitation and if balance period is more than 90 days then same will be
available in view of Judgment passed by the Hon’ble Supreme Court
passed in Suo Motu writ petition (C) No. 3/2020 dated 10.01.2022
Relevant portion of the said Judgment is reproduced hereunder :-
“5.Taking into consideration the arguments advanced by
learned counsel and the impact of the surge of the virus on
public health and adversities faced by litigants in the
prevailing conditions, we deem it appropriate to dispose of
the M.A. No. 21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in
continuation of the subsequent orders dated 08.03.2021,
27.04.2021and 23.09.2021, it is directed that the period
from15.03.2020 till 28.02.2022 shall stand excluded for the
purposes of limitation as may be prescribed under any
general or special laws in respect of all judicial or quasi-
judicial proceedings.
II. Consequently, the balance period of limitation remaining
as on 03.10.2021, if any, shall become available with effect
from 01.03.2022.
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III. In cases where the limitation would have expired during
the period between 15.03.2020 till 28.02.2022,
notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of
90days from 01.03.2022. In the event the actual balance
period of limitation remaining, with effect from 01.03.2022
is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020
till28.02.2022 shall also stand excluded in computing the
periods prescribed under Sections 23 (4) and 29A of the
Arbitration and Conciliation Act, 1996, Section 12A of the
Commercial Courts Act, 2015 and provisos (b) and (c) of
Section 138 of the Negotiable Instruments Act, 1881 and
any other laws, which prescribe period(s) of limitation for
instituting proceedings, outer limits (within which the court
or tribunal can condone delay) and termination of
proceedings”.
12. In my view after excluding period from 15.3.2020 to
28.2.2022, one year seven months and 24 days are still balance which
if I add on 28.2.2022 then the period would expire on 22.10.2023.
Further, as per Section 12 of the Commercial Courts Act, the extention
of period from the date when pre institution mediation is filed, till the
date matter remains in DLSA shall be excluded as provided under
Section 12 A (3) of the Commercial Courts Act which is reproduced
as under :
“(3) Notwithstanding anything contained in the Legal
Services Authorities Act, 1987 (39 of 1987), the Authority
authorised by the Central Government under sub-section
(2) shall complete the process of mediation within a period
of three months from the date of application made by the
plaintiff under sub-section (1):
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Provided that the period of mediation may be extended for
a further period of two months with the consent of the
parties:
Provided further that, the period during which the parties
remained occupied with the pre-institution mediation, such
period shall not be computed for the purpose of limitation
under the Limitation Act, 1963 (36 of 1963)”.
From the non starter report, Ex. PW1/6 it is evident that the
application for pre institution mediation was filed on 18.11.2023 and non
starter report was issued on 12.1.2024. Hence, 55 days is to be added
after 22.10.2023, then the limitation period would expire on 16.12.2023,
whereas the suit has been filed on 23.1.2024 hence, the recovery of
amount of Rs. 23,34,847/- as shown balance on 9.11.2018 is time
barred and thus I held that the plaintiff is not entitled to recover said
amount.
13. As far as the amount of goods which were allegedly sold
after 9.11.2018 as per ledger Ex. PW1/4 is sale of goods through
invoices dated 13.2.2020, 24.2.2020, 4.3.2020, 5.3.2020, 9.11.2020,
24.11.2020 and 1.12.2020 is concerned, the plaintiff has filed and
proved only one invoice bearing No. SE-T366/19-20 qua sales dated
24.2.2020 amounting to Rs. 17,405 as Ex. PW1/3V. No other invoice
has been placed to corroborate the said ledger hence I held that the
plaintiff has failed to prove that she is entitled to the amount qua sales
shown in ledger dated 13.2.2020, 4.3.2020, 5.3.2020, 9.11.2020,
24.11.2020 and 1.12.2020 except 24.2.2020 Ex. PW1/3V amounting to
Rs. 17,405/-. Therefore I held that the plaintiff is only entitled to recover
the said amount.
14. As far as interest is concerned, as per the invoice, the
interest @ 18% per annum will be charged if payment is not made
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within stipulated time but plaintiff has not produced any document that
she asked the defendant to make payment by a particular time neither
she has produced any legal notice demanding the said amount.
Therefore, I held that the plaintiff is entitled to interest @ 18% per
annum from the date of filing of the suit till the date of decree and
thereafter till its realization.
15. RELIEF.
In view of above, I held that the suit of the plaintiff entitled
to recover only an amount of Rs. 17,405/- (Rupees seventeen thousand
four hundred and five only) from the defendant along with interest @
18% annum from the date of filing of the suit till the date of decree and
thereafter till its realization. Rest of the claim of the plaintiff is declined.
In these circumstances, no order as to costs. Decree sheet be prepared
accordingly. File be consigned to the record room after necessary
compliance.
Announced in the open court (Sanjeev Kumar Aggarwal)
on 01.04.2025 DJ (Commercial)-01, Central,
THC/Delhi / 01.04.2025.
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