Final Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: M/S A.S. Textile vs. Shubham Lakhra
DLCT010033502023
IN THE COURT OF SH. DEEPAK GARG,
DISTRICT JUDGE-COMMERCIAL COURT-09
(CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI
CIVIL SUIT (COMMERCIAL) NO.:- 403/2023
IN THE MATTER OF :-
M/s A.S. Textile
Through its proprietor
Mohd. Muzammil S.O Mohd. Mobin
Having its office at:
6168/4, Block1, Gali NO. 4,
Dev Nagar, Karol Bagh,
New Delhi 110005 … Plaintiff
VERSUS
1. M/S Lakhara Enterprises
2. Sh. Shubham Lakhara
Proprietor
M/S Lakhara Enterprises,
At: 6155, Block-1, Gali no. 4,
Dev Nagar, Karol Bagh,
New Delhi 110005
Also at:
163, First Floor, Mathura Road,
Hari Nagar, Ashram, Jungpura,
New Delhi 110014 ... Defendants
CS (COMM)No. 403/2023 Page 1 of 9
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M/S A.S. Textile vs. Shubham Lakhra
SUIT FOR RECOVERY OF RS.28,85,324/- ALONG WITH INTEREST
Date of institution : 04.03.2023
Date on which Judgment was reserved : 01.03.2024
Date of Judgment :07.03.2024
::- J U D G M E N T -::
1. By way of present judgment, this court shall adjudicate upon
suit filed by the plaintiff against the defendants for recovery of
Rs.28,85,324/- along with pendente-lite and future interest.
CASE OF THE PLAINTIFF AS PER PLAINT
2. Brief facts necessary for just adjudication of the present suit, as
stated in the plaint, are as under:-
i. The plaintiff possesses good reputation in the business of
manufacture and supplies of readymade garments and carries its
business in the name and style of M/S A.S. Textile and carries
out cloth merchant business thereby supplies of fabric and cloth
as per the demand and requirement of its clients and customers
of different quantity throughout the territorial of India.
ii. The defendant is old and valuable customer of the plaintiff
and used to place orders to the plaintiff for the purchase of fab-
rics of different description/quantity on credit basis on various
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M/S A.S. Textile vs. Shubham Lakhra
dates and occasions as per demand and requirement of the busi-
ness of the defendants since the year 2015.
iii. That the defendant as per his need and requirement
placed orders to the plaintiff and the goods were received by
the defendants from the plaintiff to a tune of Rs.39,67,824/-.
iv. The plaintiff used to provide credit facilities to the defen-
dants and the defendants used to clear part payment of the re-
ceived goods to the plaintiff as on date the defendants had only
clear an amount of Rs.10,82,500/- against the goods received
by the defendants and the defendants are liable to clear an out-
standing amount of Rs.28,85,324/-.
v. Plaintiff continuously approached the defendants for the
settlement of account of business transaction for the remaining
legal enforceable liabilities and for settlement of account of
business transaction against the receipt of goods by the defen-
dants on 29/12/2020 and the defendant issued three cheques in
favour of plaintiff, however the said cheques were dishonoured
on presentation with remarks ‘Account Closed” vide returning
memos dated 23/03/2021.
vi. Despite repeated requests of the plaintiff, the defendant
did not pay the amount due and finding no alternative plaintiff
sent legal notices dated 19/04/2021 and 25/01/2022 to the
defendant demanding the due payment but despite the aforesaid
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M/S A.S. Textile vs. Shubham Lakhra
Legal Notices, the defendant did not pay and clear the
outstanding dues of the plaintiff.
vii. Plaintiff filed application under Section 12A of
Commercial Court Act for premediation but the defendants had
not appeared before the mediation and non starter reprot was
issued by the DLSA.
viii.It is further averred in the plaint that the present suit is
within the jurisdiction as the plaintiff’s company is registered
at Delhi. The plaintiff has prayed for a decree of Rs.
28,85,324/- along with pendentelite and future interest till the
realisation.
EX-PARTE PROCEEDINGS
3. Summons of the suit were issued to the defendant. When the
court came to the conclusion that the defendant cannot be served by
way of ordinary service, the defendant was directed to be served
through affixation. However, inspite of service through affixation, the
defendant neither appeared in the court nor filed written statement and
so the defendant was proceeded exparte on 09.02.2024.
EVIDENCE OF THE PLAINTIFF
4. The plaintiff in order to prove its case has led plaintiff evidence
and examined PW1 Mohd. Muzammil, AR of the plaintiff’s firm has
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M/S A.S. Textile vs. Shubham Lakhra
filed his evidence by way of affidavit, wherein he reiterated and
reaffirmed the contents of the plaint. PW-1 in his testimony has relied
upon the following documents:-
(i) Copy of the registration certificate of GST is ExPW1/1 (OSR).
(ii) Copy of application for registration under Section 7(1)/7(2) of
the Central Sales Tax 1956 - Form A and Form DVAT 04 along
with challan for Delhi Value Added Act is ExPW1/2.
(iii) Copy of legal notice dated 19/04/2021 is ExPW1/3.
(iv) Original postal receipt of Speed Post dated 19/04/2021
regarding sending of legal notice is ExPW1/4.
(v) Copy of tracking report no. ED846916118IN dated 03/05/2021
is ExPW1/5.
(vi) Copy of Legal notice dated 25/01/2022 is ExPW1/6.
(vii) Original postal receipt of speed post dated 25/01/2022
ExPW1/7.
(viii) Copy of returned envelopes of dated 28/01/2022 and
31/01/2022 is ExPW1/8 (colly).
(ix). Copy of statement of ledger account w.e.f. 01/04/2014 to
31/03/2019 is ExPW1/9.
(x) Delivery challan are ExPW1/10 colly. (25 bills)
(xi) Bill form are ExPW1/11 colly. (13 bill form)
(xii) Tax invoices are ExPW1/12 colly.
(xiii) 18 Cheques issued by defendant to plaintiff are ExPW1/13
colly.
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M/S A.S. Textile vs. Shubham Lakhra
(xiv) Three Cheque returning memos all dated 23.03.2021
ExPW1/14 colly.
(xv) Copy of non starter report issued from DLSA dated 04/08/2022
is ExPW1/15.
(xvi) Certificate under Section 65B of Indian Evidence Act. Same is
ExPW1/16.
5. This Court heard the ex-parte final arguments advanced by Ld.
Counsel for the plaintiff. I have perused the material available on
record.
FINDINGS & CONCLUSIONS OF THE COURT
6. I have heard learned counsel for the plaintiff, perused the record
carefully and give my thoughtful consideration to his submissions.
7. PW1 has also proved the GST Registration certificate of the
firm and copy of application for registration under Section 7(1)/7(2) of
the Central Sales Tax 1956 – Form A and Form DVAT 04 along with
challan for Delhi Value Added Act as ExPW1/1 and ExPW1/2 respec-
tively.
8. It is deposed by PW1 that the defendants had been purchasing
the material/product from the plaintiff. He has proved delivery chal-
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M/S A.S. Textile vs. Shubham Lakhra
lans ExPW1/10 colly, Bill forms ExPW1/11 colly and copy of invoices
ExPW1/12 colly.
9. The certificate under Section 65B of Indian Evidence Act in re-
spect of the electronic record has been proved as ExPW1/16. The
ledger account ExPW1/9 shows the liability of the defendant to pay
the amount under the invoices in question. The PW-1 has also deposed
that prior to filing of the suit, a legal notice dated 19/04/2021and
25/01/2022 i.e. ExPW1/3 and ExPW1/6 respectively were issued to
defendant, however, the defendant failed to clear the outstanding
amount. He has proved postal receipts, tracking reports, returned en-
velopes containing legal notices ExPW1/4, ExPW1/5, ExPW1/7,
ExPW1/8 colly.
10. As the PW1 has filed the requisite certificate under Section 65B
and same is Ex.PW1/16, the computerized print outs of the documents
Ex.PW1/1, ExPW1/2 and ExPW1/9 become admissible in evidence.
The statement of ledger account corroborates the testimony of PW1.
11. The plaintiff initiated pre-instituion mediation proceedings
which resulted in issuance of non-starter report ExPW1/15 as defen-
dants failed to join the mediation proceedings. The defendants have
also not filed written statement to contest the present suit filed by the
plaintiff.
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M/S A.S. Textile vs. Shubham Lakhra
12. The testimony of PW-1 has remained unchallenged and unrebut-
ted. The defendants have also chosen not to appear and when the case
of the plaintiff has gone un-challenged, uncontroverted, un-rebutted
and duly corroborated by the documents, this court has no reason to
disbelieve the version of the plaintiff qua the claims.
13. Hence, the plaintiff has been able to prove its case and is
entitled for the recovery of amount i.e. Rs.28,85,324/- from the
defendants. As far as the interest is concerned, plaintiff has claimed
pendtentelite and future interest on the aforesaid amount.
14. Therefore, I hold that plaintiff is entitled to recover a sum of
Rs.28,85,324 /- from the defendants and simple interest @ 10% per an-
num on the said amount from the date of filing of the present suit i.e.
04/03/2023 till its realization.
RELIEF
15. From the discussions, as made hereinabove, I hereby pass the
following:
FINAL ORDER
(a) an ex parte decree of Rs.28,85,324 /- is passed in favour of the
plaintiff and against the defendants jointly and severally and interest
on the said amount @ 10% per annum alongwith pendentelite and fu-
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M/S A.S. Textile vs. Shubham Lakhra
ture interest from the date of filing of the present suit i.e. 04/03/2023
till its realization. The cost of the suit is also awarded in favour of the
plaintiff and against the defendants.
16. Decree-sheet be prepared accordingly.
17. File be consigned to Record Room after due compliance.
Announced in the open Court on (Deepak Garg)
this 7th Day of March, 2024 Distt. Judge, (Comm. Court)-09,
Central District, THC : Delhi
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