Final Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. SANJEEV KUMAR SINGH,
DISTRICT JUDGE(COMMERCIAL COURT)-13,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS (COMM.) No. 868/2023
CNR No. DLCT01-007428-2023
1. Sh. Rajesh Jalota
Proprietor of RMA Chemical Company
at 1362/5, 1st Floor, Pan Mandi,
Sadar Bazaar, Delhi-110006. ………….Plaintiff No.1.
2. RMA Chemical Company
Through its proprietor Sh. Rajesh Jalota
at 1362/5, 1st Floor, Pan Mandi,
Sadar Bazaar, Delhi-110006. ………….Plaintiff No.2.
Versus
1. Sh. Pradeep Kapoor
Proprietor of One Drop Home Care
At Plot No. 3, Bhakri Road,
Nawad, NIT,
Faridabad, Haryana. …………Defendant No.1.
Second Address:
Shed No. 5, Hansraj Complex
Near police Office Co-Operative Society,
Bhakri Road, Nawada Village, Sector-49,
Faridabad, Haryana-121001.
2. One Drop Home Care
Through its proprietor Sh. Pradeep Kapoor
At Plot No. 3, Bhakri Road,
Nawad, NIT,
Faridabad, Haryana. …………Defendant No.2.
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 1 of 13
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Date of filing of suit : 29.05.2023
Arguments concluded on : 18.03.2024
Date of pronouncement of judgment : 18.03.2024
EX-PARTE JUDGMENT:
1. Present is a civil suit filed by the plaintiff seeking recovery
of Rs. 7,69,979.08 alongwith pendente-lite and future interest
from the date of filing of suit till realization.
BRIEF FACTS OF THE CASE OF PLAINTIFF:
2. The version of the plaintiff is that plaintiff No. 1 is
proprietor of Plaintiff No. 2 and deals in Rubber, Food products,
Pharma, Cosmetics, Herbs and industrial Chemicals etc; that
plaintiff No. 1 is unable to appear before this court due to his
health reasons so he has appointed Mr. Manish Jalota and Mr.
Puneet Jalota, both his sons as his general attorney(to act jointly
and severally) vide GPA dated 27.11.2020 and they are well
conversant with the facts of this case and present suit is being
filed through Sh. Manish Jalota.
3. It is further the version of plaintiffs that defendant No. 1 is
sole proprietor of One Drop Home Care i.e. defendant No.2; that
defendants purchased raw material of Home Care Products on
different dates on credit on agreed rate of interest of 18%; that
the said raw material of Home Care Products was purchased by
defendants between 25.12.20217 to 19.08.2020 for a total sum of
Rs. 34,05,950/-; that out of the said amount defendants only paid
sum of Rs. 26,95,829/- and an amount of Rs. 2,00,000/- was
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 2 of 13
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adjusted in the accounts of Apple House(Proprietorship
concerned of wife of Sh. Rajesh Jalota i.e. plaintiff No.1)
4. It is further the version of plaintiffs that as per the accounts
maintained by plaintiffs in regular course of business, defendants
are liable to pay an amount of Rs. 5,10,121/-, after deducting the
above mentioned amount of Rs. 2,00,000/, which was adjusted
in the accounts of Apple House; that defendants are also liable to
pay the amount of Rs. 2,44,858.08 as interest up to
24.03.2023(agreed interest @ 18% per annum charged from due
date till 24.03.2023) and defendants are also liable to pay an
amount of Rs. 15,000/- as conveyance charges to the plaintiffs.
5. It is further the version of plaintiffs that when defendants
did not pay the above said amounts in spite of repeated requests,
plaintiffs were constrained to serve a legal notice dated
16.08.2022, which was duly received by the defendants, but
defendants neither make any payment nor any reply was given
by them of the said legal notice. Further they also did not
appear before Central District Legal Service Authority for Pre-
Litigation Mediation.
6. It is further the version of the plaintiffs that cause of
action in favour of plaintiffs on different dates, when plaintiffs
supplied the goods to the defendants; that it further arose on
30.03.2020, when defendants paid Rs. 50,000/- through cheque
in the account of plaintiffs; that it further arose on 16.08.2022,
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 3 of 13
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when legal notice was served upon the defendants; that it further
arose on 10.11.2022, when plaintiffs filed application for Pre-
Litigation Mediation before Central District Legal Services
Authority, Tis Hazari Courts, Delhi; that it further arose on
03.03.2023, when Non-Starter report was prepared and that
cause of action is continuing one.
7. It is further the version of the plaintiffs that subject matter
of suit is commercial dispute as defined in Commercial Courts
Act; that before filing the present suit plaintiffs moved an
application dated 10.11.2022 for Pre-Institution Mediation
before Central District Legal Services Authority, Tis Hazari
Courts, Delh; that notices of the application were duly served
upon the defendants; that defendants did not appear before
Central District Legal Services Authority and CDLSA was
pleased to issue Certificate of Non-Starter report dated
03.03.2023.
8. It is further the version of plaintiffs that as per Section
12(A)(3), period during which parties remained occupied with
Pre-Institution Mediation, such period shall not be computed for
the purpose of limitation under the Limitation Act, 1963 from
10.11.2022 to 03.03.2023.
9. It is further the version of plaintiffs that cause of action
arose at the office of plaintiffs at 1362/5, 1st Floor, Pan Mandi,
Sadar Bazaar, Delhi-110006, where orders were placed by the
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 4 of 13
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defendants and from where the goods were supplied to
defendants, which falls within the jurisdiction of this court.
10. It is prayed that suit of the plaintiffs may kindly be
decreed with costs directing the defendants to pay an amount of
Rs. 7,69,979/- alongwith pendente lite and future interest on the
amount of Rs. 7,69,979/- from the date of filing of suit till the
realization of decreetal amount.
Defendant is Exparte:-
11. Pursuant to the filing of the suit, summons were
directed to be issued against the defendant on filing of PF/RC,
Speed post & courier through ordinary process as well as through
process server of local Court of Faridabad and as per the order
sheet dated 04.12.2023, summons were served upon defendants
on 18.07.2023. However despite service neither defendants filed
any written statement nor appeared in the Court. Consequently,
they were proceeded exparte vide order dated 04.12.2023.
EVIDENCE & LIST OF DOCUMENTS:
12. In support of its case, plaintiffs have examined PW-1 Sh.
Manish Jalota and PW-2 Sh. Rajsh Jalota. PW-1 Sh. Manish
Jalota, tendered his evidence by way of affidavit Ex. PW1/A,
wherein he reiterated & reaffirmed the contents of plaint and
relied upon following documents:-
1) Certified copy of GPA is Ex. PW1/1.
2) Computer generated Tax Invoices/Bills are Ex. PW1/2 to Ex.
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 5 of 13
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PW1/115(colly).
3) Copy of ledger account is Ex. PW1/116(colly).
4) Copy of GST Registration Certificate is Ex. PW1/117.
5) Certificate u/s 65B of Indian Evidence Act is Ex.
PW1/118.
6) Legal notice dated 16.08.2022 is Ex.PW1/119.
7) Postal Receipts are Ex. PW1/120.
8) Whatsapp delivery proof with certificate u/s 65B of Indian
Evidence Act are Ex. PW1/122 & Ex. PW1/123.
9) None Starter Report is Ex. PW1/124.
13. PW-2 Sh. Rajesh Jalota also tendered his evidence by
way of affidavit Ex. PW2/A, wherein he also reiterated &
reaffirmed the contents of plaint and relied upon the documents
already exhibited in the evidence of PW-1 i.e. Ex. PW1/1 to Ex.
PW1/120 and Ex. PW1/22 and Ex. PW1/124.
FINDINGS AND OBSERVATIONS:
14. I have heard the arguments advanced before me by the
Ld. Counsel for the plaintiffs and perused the record.
15. The issue under consideration before this Court is
whether the plaintiff is entitled to the recovery of Rs. 7,69,979/-
from the defendants as prayed for in the plaint. The plaintiff has
approached this court with the submission that during the period
between 25.12.2017 to 19.08.2020 defendants purchased raw
material of Home Care Products from plaintiffs for a total sum of
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 6 of 13
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Rs. 34,05,950/-; that out of the above said amount, defendants
only paid an amount of Rs. 26,95,829/- to the plaintiffs and an
amount of Rs. 2,00,000/- was adjusted in the accounts of Apple
House(Proprietorship concern of wife of Sh. Rajesh Jalota, who
is plaintiff No.1) and as per the statement of account defendants
are liable to pay the principal amount of Rs. 5,10,121/-. It is
further the case of plaintiffs that apart from the said principal
amount, defendants are liable to pay an amount of Rs.
2,44,858.08 towards interest upto 24.03.2023 at the agreed
interest rate of 18% per annum and defendants are also liable to
pay an amount of Rs. 15,000/- as conveyance charges. It is
further the case of the plaintiffs that when despite repeated
requests defendants did not pay the outstanding amount,
plaintiffs issued legal notice dated 16.08.2022, which was duly
served to them. However, defendants did not pay the outstanding
amount after service of legal notice. Thereafter, plaintiffs moved
an application dated 10.11.2022 for Pre-Litigation Mediation,
notice were served upon the defendants but they did not appear
and accordingly Non-Starter report dated 03.03.2023 was issued
by CDLSA. Hence, the present suit for recovery of sum of Rs.
7,69,979/- alongwith pendente lite and future interest and costs of
the suit has been filed by the plaintiffs.
16. At the very Outset, I may observe that the provisions of
Section 2 (1) (c) (xviii) of Commercial Courts Act, 2015 are
very clear which reads as under:
(c) "commercial dispute" means a dispute arising
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out of-
(i) ordinary transactions of merchants,
bankers, financiers and traders such as
those relating to mercantile documents,
including enforcement and interpretation of
such documents;
(ii) export or import of merchandise or
services;
(iii) issues relating to admiralty and
maritime law;
(iv) transactions relating to aircraft, aircraft
engines, aircraft equipment and helicopters,
including sales, leasing and financing of the
same;
(v) carriage of goods;
(vi) construction and infrastructure
contracts, including tenders;
(vii) agreements relating to immovable
property used exclusively in trade or
commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x)management and consultancy
agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment
agreements pertaining to the services
industry including outsourcing services and
financial services;
(xiv) mercantile agency and mercantile
usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to
registered and unregistered trademarks,
copyright, patent, design, domain names,
geographical indications and semiconductor
integrated circuits;
(xviii) agreements for sale of goods or
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 8 of 13
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provision of services;
(xix) exploitation of oil and gas reserves or
other natural resources including
electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of
the above; and
(xxii) such other commercial disputes as
may be notified by the Central Government.
17. The provisions of Section 2 (1) (c) (xviii) of Commercial
Courts Act as above are very much clear. Sale of goods are
governed by Sale of Goods Act, they pertain to movable
properties, any dispute of sale or agreement to sale of goods of
specified value do come within the jurisdiction of Commercial
Courts Act. The clause also includes the services and guarantee
given for the goods sold. The service or guarantee may be oral or
written. Therefore, the facts which alleged in the plaint comes
under the commercial dispute.
18. Now, the next question is whether this Court has the
pecuniary jurisdiction to adjudicate the matter which is in
dispute. The provisions of Section 3 of Commercial Courts
Act, 2015 provides that:
Section 3: Constitution of Commercial
Courts:
3. (1) The State Government, may after
consultation with the concerned High Court,
by notification, constitute such number of
Commercial Courts at District level, as it
may deem necessary for the purpose of
exercising the jurisdiction and powers
conferred on those Courts under this Act:
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CS (Comm.) No. 868/23 Page No. 9 of 13
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[Provided that with respect to the High
Courts having ordinary original civil
jurisdiction, the State Government may, after
consultation with the concerned High Court,
by notification, constitute Commercial
Courts at the District Judge level:
Provided further that with respect to a
territory over which the High Courts have
ordinary original civil jurisdiction, the State
Government may, by notification, specify
such pecuniary value which shall not be less
than three lakh rupees and not more than the
pecuniary jurisdiction exercisable by the
District Courts, as it may consider
necessary.]
3[(1A) Notwithstanding anything contained
in this Act, the State Government may, after
consultation with the concerned High Court,
by notification, specify such pecuniary value
which shall not be less than three lakh
rupees or such higher value, for whole or
part of the State, as it may consider
necessary.]
19. The Commercial Courts Act was amended on 03.05.2018
and by virtue of the amendment and by virtue of the amendment
and by virtue of notification, the pecuniary jurisdiction of the
commercial courts shall not be less than Rs. 3,00,000/-. In the
present case, the claimed amount as mentioned in the plaint is of
Rs.7,69,979/- and as such this court is having pecuniary
jurisdiction to adjudicate the matter which is in dispute.
20. This court has the territorial jurisdiction to try the present
suit since orders were placed at the office of the plaintiffs in
Delhi at 1362/5, 1st Floor, Pan Mandi, Sadar Bazaar, Delhi-
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 10 of 13
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110006 from where goods were supplied to the defendants,
which falls within the territorial jurisdiction of this court.
21. Regarding the period of limitation, ld counsel for plaintiffs
has submitted that as per Section 12(A)(3), period during which
parties remained occupied with Pre-Institution mediation, such
period shall not be computed for the purpose of limitation and in
this case the period from 10.11.2022 to 03.03.2023 is to be
excluded for the purpose of limitation. Perusal of record reveals
that in this case, plaintiffs initiated Pre-Institution Mediation on
10.11.2022 and Non-Starter Report Ex. PW1/124 is dated
16.01.2023, which was issued on 03.03.2023. This court agrees
with the submission of ld counsel for plaintiffs that by virtue of
Section 12-A of the Commercial courts Act, 2015, the period
during which the party remained occupied with the pre-
institution mediation, such period shall not be computed for the
purpose of limitation under the Limitation Act, 1963. In the
present case, last payment was made by the defendants on
30.03.2020, the parties remained occupied in Pre-Institution
Mediation w.e.f.10.11.2022 till 03.03.2023, therefore, this period
shall not be computed for purpose of limitation. Non-Starter
report was issued on 03.03.2023 and present suit was filed on
29.05.2023 i.e. well within limitation.
22. Let us now turn towards the entitlement of the plaintiffs
to the recovery as prayed in the plaint, the plaintiffs have
examined Sh. Manish Jalota as PW-1 and Sh. Rajesh Jalota as
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
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PW-2. PW-1 deposed by way of affidavit evidence Ex. PW1/A,
wherein the contents of plaint were reiterated and re-affirmed by
him on oath. PW-1 also proved the supporting documents in
support of claim of the plaintiffs. Perusal of Ex. PW1/2 to Ex.
PW1/115 reveals that goods were supplied to the defendants on
various dates. Further perusal of copy of ledger account Ex.
PW1/116(colly) reveals that after receiving various payments qua
the above mentioned invoices, an amount of Rs. 7,68,465.72
paise was outstanding against the defendant on 01.04.2020. PW-1
also relied upon certificate u/s 65B of Indian Evidence Act,
which is Ex. PW1/118, qua the printouts of Tax Invoices, Ledger
Account and GST certificate filed in the Court. Similarly, PW-2
Sh. Rajesh Jalota, also deposed by way of affidavit evidence Ex.
PW2/A, wherein the contents of plaint were reiterated and re-
affirmed by him on oath and he also relied upon the documents
already exhibited as Ex. PW1/1 to Ex. PW1/120 and Ex.
PW1/122 and Ex. PW1/124 during the testimony of PW-1.
23. Here, it is pertinent to note that had the plaintiffs not
supplied the material/goods to the defendants and the defendants
had not received the said material/goods from the plaintiffs, it
would have appeared and controverted the claim of the plaintiffs
which defendants did not do so. Defendants neither participated
in Pre-Litigation Institution despite service of notices issued for
13.12.2022 & 16.01.2023, nor they appeared before this court
despite service of summons on 18.07.2023.
Sh. Rajesh Jalota & Anr. Vs. Sh. Pradeep Kapoor and Anr.
CS (Comm.) No. 868/23 Page No. 12 of 13
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24. It also stands proved that the plaintiffs sent a legal notice
dated 16.08.2022(Ex.PW1/119) which was served upon the
defendant on 16.08.2022 through whatsapp. PW-1 has proved
the copy of whatsapp message as Ex. PW1/122 and certificate
u/s 65B of Indian Evidence Act in this regard as Ex. PW1/123.
Hence, there is no hitch in observing that defendants was well
aware about the claim of the plaintiffs and it seems defendants
have nothing to counter the version of the plaintiffs. The entire
testimony of PW-1 and PW-2 has gone unrebutted in view of
which the claim of plaintiffs has gone undisputed and
uncontroverted. There is no reason to disbelieve the same.
25. Accordingly, in view of the above discussion, the suit of
the plaintiffs is hereby decreed in favour of the plaintiffs and
against the defendants and it is held that the plaintiffs are entitled
to the recovery of the outstanding amount of Rs. 7,69,979/- from
the defendants alongwith interest @ 9 % p.a from the date of
filing of suit till realization of the amount.
26. Cost of the suit is also awarded in favour of the plaintiffs.
27. Decree sheet be prepared accordingly.
28. File be consigned to Record Room after due
compliance.
Announced in the open court
Dated: 18.03.2024
(Sanjeev Kumar Singh)
District Judge, Commercial Court-13
Central District, Tis Hazari Courts,
Delhi/18.03.2024(MB)
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