Final Order 8

Order Details: COPY OF ORDER
Pdf Text: In the Court of Sh. Fahad Uddin,
ASCJ-cum-JSCC-cum-Guardian Judge,
East, KKD Courts, Delhi.
Civil Suit No. 330/2023
CNR No. DLET03-000621-2023
Sh. Amit Aggarwal
Proprietor of
M/s Royal Marbles & Tiles
F-67, Parwana Road,
Jagat Puri, Delhi-110051
Cell No.: 9899998916
E-mail: royalmarbelntile@gmail.com
………...Plaintiff
Versus
1) Sh. Shubham
Proprietor of
M/s Aksh Infra
OP-111, Ganga Nagar
Mawana Road, Meerut,
Uttar Pradesh-250001.
Cell/WhatsApp No.: 9760090927
E-mail: shubham.aggarwal@akshgroups.com
2) Sh. Ankur Jain
Authorized Signatory of
M/s Aksh Infra
Block-A18,
Supertech Capetown,
Sector-74, Noida,
Uttar Pradesh-201304
Cell/WhatsApp No.: 9718403005
E-mail:ankurjain@akshgroups.com
………….Defendants
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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Date of institution : 18.04.2023
Reserved for order on : 06.06.2024
Order announced on : 24.08.2024
1. Vide this judgment/order, I shall dispose off the present suit filed by the
plaintiff (Sh. Amit Aggarwal Proprietor of M/s Royal Marbles & Tiles) against the
defendants (Sh. Subham Proprietor of M/s Aksh Infra and Sh. Ankur Jain, authorized
signatory of M/s Aksh Infra) for recovery of Rs. 1,83,851/- (Rupees One Lakh, Eighty
Three Thousand Eight Hundred Fifty One only) alongwith interest as mentioned in the
plaintiff. The brief facts necessary to decide the present case may be described as
under :-
2. It is the case of the plaintiff that the plaintiff is doing the business of retailer and
supplier of Kajaria Tiles, Marbles, Hardware items etc. under the name and style of M/s
Royal Marbles & Tiles for last many years. The defendant no. 1 is the proprietor of M/s
Aksh Infra and doing work of civil construction at various sites under the name and style
of M/s Aksh Infra. The defendant no. 2 is the authorized representative of defendant no.
1 who is looking after the day to day work of defendant no. 1. CPWD a government
undertaking had awarded some part of work to defendant no. 1 for the project
“Parliament Library Building at PHA site, Delhi”. To execute the said work awarded by
defendant no. 3, the officials of the defendant no. 1 visited the office of the plaintiff in
the month of March, 2022 for purchase of tiles etc. After various discussions and
negotiation, the defendant no. 1 purchased material from the office of the plaintiff and
thereafter, the defendant no. 1 issued a purchase order / quotation dated 22.03.2022 to
the plaintiff for supply of tiles at its PHA site, Delhi. After receipt of the material, the
officials of CPWD made entries of the same in their Receipt/inward register.
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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Accordingly, against the purchase of the said material, the plaintiff raised the bills /
invoices including GST against the defendant and details of the same are as under:-
S. No. Invoice No. Date Amount
1. 1990 30.03.2022 Rs.90,090/-
2. 2006 31.03.2022 Rs.90,090/-
3. 2007 31.03.2022 Rs.91,260/-
4. 2009 31.03.2022 Rs.91,260/-
Total Rs.3,62,700/-
(Rupees Three Lacs,
Sixty Two Thousand
Seven Hundred only)
Against the purchase of the said material, the defendant no. 1 issued two cheques
bearing no. 000093 dated 23.03.2022 of Rs.30,752/- and cheque bearing no. 000102
dated 27.03.2022 of Rs.3,32,125/- to the plaintiff against the entire material which was
received by the defendants well in time as well as to the entire satisfaction of the
defendants. To the utter shock and surprise of the plaintiff, the said two cheques were
dishonoured with remarks “Fund Insufficient”. The said intimation was provided by the
bankers of the plaintiff vide return memo dated 18.05.2022. After various visits, requests
and reminders of the plaintiff, the officials of the defendant no. 1 released amount of
Rs.1,00,000/- on 27.05.2022 and Rs. 1,00,000/- on 12.07.2022 through bank transfer
leaving the outstanding amount of Rs.1,62,700/-. The plaintiff made so many requests
and demanded the outstanding amount from the defendants but each and every time, the
defendants avoided their liability on one pretext or the other and at last, the defendants
failed to release the said outstanding amount to the plaintiff without any justifiable
reason. The plaintiff also sent a legal notice dated 18.10.2022 through his counsel to the
defendants calling upon them to make the payment of the outstanding amount within 15
days of the receipt of the said notice. After receipt of the said legal notice, defendant no.
1 talked to the plaintiff and assured that the outstanding amount of Rs.1,62,700/- shall be
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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released within 10-15 days but the defendants failed to fulfill their promise. Thus, due to
said conduct of the defendants, the plaintiff suffered a lot of mental pain and agony as
well as financial loss. The plaintiff also sent a RTI dated 16.12.2022 to CPWD through
speed post and email and in lieu of the said RTI, a reply dated 04.01.2023 was received
wherein the CPWD accepted that the defendant no. 1 is sub-contractor of CPWD and
defendant no. 1 is the defaulter at the project site. On 23.03.2023, the defendant no. 1
requested the plaintiff to send the legal notice again on another number of defendant no.
1 and accordingly, the counsel for the plaintiff sent the legal notice to the defendant no.
1 on the said number. Thus, defendant no. 1 and 2 are illegally and unlawfully
withholding the legally recoverable amount of the plaintiff and thus the defendants are
also liable to pay interest on the outstanding amount @ 12 % per annum from the date of
purchase of the material to till date and the total amount comes to Rs.1,83,851/- (Rupees
One Lac Eighty Three Thousand Eight Hundred Fifty One only). Hence, in the said back
ground, the present suit has been filed by the plaintiff against the defendants seeking a
decree for a sum of Rs.1,83,851/- against the defendants alongwith interest and costs as
prayed for in the plaint.
3. Perusal of record shows that summons were served upon the defendant no. 1 and 2
through whatsapp at their given mobile numbers i.e. 9718403005 and 9760090927 on
04.01.2024 and the statement of the process server was also recorded to this effect by
this court on 29.02.2024 and reports of the process server alongwith screen shot of the
whatsapp were taken on record as Ex. CW1/A (colly) and Ex. CW1/B (colly). However,
despite this, neither the defendants appeared before the court nor filed any written
statement to contest the suit of the plaintiff before this court and keeping in view the said
conduct of the defendants, right of the defendants to file written statement was closed
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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and they were proceeded ex-parte in the present case vide order dated 29.02.2024 passed
by the court and matter was fixed for leading ex-parte PE in the present case.
4. Plaintiff evidence:-
To prove his case before this court against the defendants, the plaintiff got examined one
witness i.e. PW-1 Sh. Amit Aggarwal who is the proprietor of M/s Royal Marbles and
Tiles. The said witness tendered his evidence by way of affidavit which is Ex. PW1/1 on
court record and PW1 also relied upon the following documents in support of his case:-
i) Purchase order / quotation bearing no. Aksh Group/A-1/PHA-DL/PO/029 dated
22.03.2022 as Ex. PW1/A.
ii) Invoice no. 1990 dated 30.03.2022 as Ex. PW1/B.
iii) Invoice no. 2006 dated 31.03.2022 as Ex. PW1/C.
iv) Invoice no. 2007 dated 31.03.2022 as Ex. PW1/D.
v) Invoice no. 2009 dated 31.03.2022 as Ex. PW1/E.
vi) Cheque bearing no. 000093 dated 23.03.2022 as Ex. PW1/F.
vii) Cheque bearing no. 000102 dated 27.03.2022 as Ex. PW1/G.
viii) Return memo dated 18.05.2022 as Ex. PW1/H.
ix) Return memo dated 18.05.2022 as Ex. PW1/I.
x) Ledger account of the defendant as Ex. PW1/J.
xi) Whatsapp chat of plaintiff with the defendant is Ex. PW1/K.
xii) Legal notice dated 18.10.2022 issued by the plaintiff to the defendant as Ex.
PW1/L (colly).
xiii) Postal receipt as Ex. PW1/M to Ex. PW1/O.
xiv) Delivery report for the said legal notice as Ex. PW1/P to Ex. PW1/R.
xv) Legal notice sent through whatsapp is Ex. PW1/S.
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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xvi) Email dated 22.10.2022 sent by the plaintiff to the defendant is Ex. PW1/T.
xvii) RTI application dated 16.12.2022 alongwith other documents related to the
defendant is Ex. PW1/U (colly).
xviii) Reply dated 04.01.2023 is Ex. PW1/V.
xix) Whatsapp delivery of legal notice is Ex. PW1/W.
xx) Certificate under Section 65 B of Indian Evidence Act in support of electronic
record is Ex. PW1/X.
The said witness PW-1 was not cross-examined by the defendants as the
defendants were proceeded ex-parte in the present case and hence, the witness was
discharged. No other witness has been examined on behalf of the plaintiff in support of
his case and ex-parte PE was closed vide order dated 30.04.2024 passed by the Court.
5. Thereafter, ex-parte final arguments were addressed by the counsel for the
plaintiff in the present case wherein the counsel for the plaintiff stated that on the basis
of testimony of PW-1 as well as documents relied upon by him, the plaintiff is entitled to
a decree in his favour as prayed for in the plaint.
6. Submissions heard. Record perused. The documents filed on behalf of the
plaintiff are also gone through.
7. It may be noted that to prove his case before this court, the plaintiff got examined
one witness i.e. PW-1 Sh. Amit Aggarwal, Proprietor of M/s Royal Marbles and Tiles
who tendered his evidence by way of affidavit which is Ex. PW1/1 on court record. In
his evidence by way of affidavit, PW-1 stated that after various discussion and
negotiations, the defendant no. 1 purchased material from the office of the plaintiff in
Jagat Puri, Delhi and defendant no. 1 issued a purchased order/quotation dated
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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22.03.2022 to the plaintiff for supply of floor tiles at the concerned site. After receipt of
the material, the officials of the CPWD made entries of the same in their Receipt/inward
register. Against the purchase of the said material, the plaintiff raised bills/invoices
including GST in the name of defendant no. 1 for a total sum of Rs.3,62,700/-. Against
the purchase of the said material, the defendant no. 1 issued two cheques bearing no.
000093 dated 23.03.2022 of Rs.30,752/- and cheque bearing no. 000102 dated
27.03.2022 of Rs. 3,32,125/- to the plaintiff against the entire material which was
received by the defendants. To the utter shock and surprise of the plaintiff, the said
cheques were dishonoured with remarks ‘Funds Insufficient’ and intimation for the same
was provided by the bankers of the plaintiff vide two return memo dated 18.05.2022.
After various visits, requests and reminders of the plaintiff, the offiicals of defendant no.
1 released the amount of Rs.1,00,000/- on 27.05.2022 and Rs.1,00,000/- on 12.07.2022
through bank transfer thereby leaving the outstanding amount of Rs.1,62,700/- against
the defendants. The plaintiff made so many requests and demands for his outstanding
amount from the defendants but the defendants avoided the payment on one pretext or
the other and at last, defendants failed to release the outstanding amount to the plaintiff
without any justification and reason. The plaintiff also sent a legal notice dated
18.10.2022 through his counsel to the defendants thereby calling upon them to make the
payment within 15 days of the receipt of the said notice. After receipt of the said legal
notice, the defendant no. 1 talked to the plaintiff and assured that the outstanding amount
of Rs. 1,62,700/- shall be released to the plaintiff within 10-15 days but the defendant
no. 1 failed to abide by his promise. Due to the said conduct of the defendants, the
plaintiff suffered a lot of mental pain and agony as well as financial loss. The plaintiff
also sent a RTI dated 16.12.2022 to CPWD through speed post and email and in lieu of
the same, CPWD sent a reply dated 04.01.2023 in which it was accepted that defendant
no. 1 is the sub contractor under CPWD and he is the defaulter at the project site. On
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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23.03.2023, the defendant no. 1 requested the plaintiff to send the legal notice again on
another number of defendant no. 1 and accordingly, the counsel for the plaintiff sent the
legal notice to the defendant no. 1 at the said number. Thus, defendants illegally and
unlawfully withheld the legally recoverable amount of the plaintiff and thus, they are
also liable to pay interest on the outstanding amount @ 12 % per annum from the date
of purchase of material till date which comes to Rs.1,83,851/- (Rupees One Lac, Eighty
Three Thousand, Eight Hundred Fifty One only).
8. To prove his case before this court, PW-1 Sh. Amit Aggarwal also relied upon the
documentary evidence which is Ex. PW1/A to Ex. PW1/X on court record. Purchase
order / quotation dated 22.03.2022 given by the plaintiff to the defendant no.1 for supply
of floor tiles / marbles for a total sum of Rs.3,62,877/- is Ex. PW1/A. Tax Invoices
bearing no. 1990 dated 30.03.2022 for a sum of Rs.90,090/-, 2006 dated 31.03.2022 for
a sum of Rs. 90,090/-, 2007, dated 31.03.2022 for a sum of Rs.91,260/- and 2009 dated
31.03.2022 for a sum of Rs.91,260/- issued by the plaintiff against the defendant no. 1
for supply of tiles are Ex. PW1/B to Ex. PW1/E. Cheque bearing no. 000093 dated
23.03.2022 for a sum of Rs.30,752/- and cheque bearing no. 000102 dated 27.03.2022
for a sum of Rs. 3,32,125/- issued by the defendant no. 1 in favour of the plaintiff
towards discharge of payment are Ex. PW1/F to Ex. PW1/G. Two return memos dated
18.05.2022 showing that the said cheques were returned dishounoured with remarks
‘Fund insufficient’ are Ex. PW1/H and Ex. PW1/I. Ledger account of the defendant
maintained by the plaintiff during the ordinary course of business which shows that a
sum of Rs.1,62,700/- is due and outstanding against the defendant as on 08.02.2023 is
Ex. PW1/J. Whatsapp chat of the plaintiff with the defendant no. 1 regarding demanding
of the outstanding dues is Ex. PW1/K. Legal notice dated 18.10.2022 issued on behalf of
the plaintiff to defendant no. 1 thereby calling upon defendant no. 1 to make the
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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payment of the outstanding amount of Rs. 1,62,700/- within 15 days from the receipt of
the legal notice is Ex. PW1/L (colly). Postal receipt for the same are Ex. PW1/M to Ex.
PW1/O and the tracking report showing delivery of said legal notice are Ex. PW1/P to
Ex. PW1/R. Legal notice sent by the plaintiff to the defendant no. 1 through whatsapp is
Ex. PW1/S and email dated 22.10.2022 sent by the plaintiff to the defendants is Ex.
PW1/T. RTI application dated 16.12.2022 filed by the plaintiff with CPWD relating to
defendant no. 1 is Ex. PW1/U and reply of the same by the said department to the
plaintiff is Ex. PW1/V. Whatsapp delivery of legal notice to defendant is Ex PW1/W and
certificate under Section 65 B of Indian Evidence Act filed by the plaintiff in support of
the electronic records i.e. bills, ledger accounts and internet generated delivery reports is
Ex. PW1/X.
9. Thus, the testimony of PW-1 Sh. Amit Aggarwal as well as documents relied upon
by him collectively prove and corroborate the case of the plaintiff before this court. The
invoices filed on record on behalf of the plaintiff shows that plaintiff had supplied tiles
and other related materials to the defendant no. 1 between the period 30.03.2022 to
31.03.2022 and in discharge of the liability, the defendant no. 1 issued two cheques for a
sum of Rs.30,752/- and Rs. 3,32,125/- in favour of the plaintiff. The said cheques were
returned unpaid / dishonoured vide return memos dated 18.05.2022 by the banker of the
plaintiff with remarks ‘Fund Insufficient’. As per the ledger account of the plaintiff, a
total sum of Rs. 1,62,700/- is due and outstanding against the defendants as on
08.02.2023 and despite issuance of legal notice dated 18.10.2022, the defendant no. 1
failed to pay the outstanding amount of Rs.1,62,700/- to the plaintiff alongwith interest
@ 18 % per annum as mentioned in the said notice. Further, the defendant despite
issuance and service of summons upon him at his given mobile number, failed to appear
before the court and to file written statement to contest the suit of the plaintiff and thus,
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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all the averments and allegations made by the plaintiff against the defendant no. 1 are
deemed to be admitted by the defendant no. 1 in the facts and circumstances of the
present case. Moreover, the plaintiff has successfully proved his case before this court
on the basis of preponderance of probabilities and the documents filed on record.
10. Hence, this court deems fit to decree the suit of the plaintiff as prayed in the
plaint against the defendant no. 1 only as the defendant no. 1 (Shubham) is the
proprietor of M/s. Aksh Infra and defendant no. 2 is not personally liable for the
transactions occurred between the plaintiff and defendant no. 1. Accordingly, the suit of
the plaintiff is decreed against defendant no. 1 only and the following reliefs are passed
in favour of the plaintiff and against defendant no. 1:-
11. Relief:-
The plaintiff is held entitled to recover a sum of Rs. 1,83,851/- (Rupees One Lac, Eighty
Three Thousand Eight Hundred Fifty One only) against the defendant no. 1 as prayed for
in the plaint. The plaintiff is also awarded pendente lite interest @ 9 % per annum from
the date of filing of the present suit till date of decree and future interest @ 6 % per
annum from the date of decree till realization of amount from the defendant no. 1. In
the interest of justice, plaintiff is also held entitled to recover the cost of the suit from
defendant no. 1 as per rules.
12. With these directions/observations, the suit of the plaintiff is decreed.
13. Let decree-sheet be prepared accordingly in favour of the plaintiff and against the
defendant no. 1 in the aforesaid terms. No further action is required.
File be consigned to record room after due compliance.
Announced in the open
Court on 24.08.2024
(Fahad Uddin)
ASCJ-cum-JSCC-cum-Guardian Judge
East, KKD Courts, Delhi/24.08.2024
Civil Suit No. 330/23
Amit Aggarwal Vs. Subham
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