Final Order 14

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SANJEEV KUMAR MALHOTRA
DISTRICT JUDGE (COMMERCIAL COURT):
NORTH EAST: KARKARDOOMA COURTS:DELHI
CS (COMM.) 126/23
CNR No. DL NE01- 003546-2023
1. Sh. Nitin Rastogi,
Proprietor of M/s Kanishka Enterprises,
C-11/155, Ground Floor,
Yamuna Vihar, Delhi-110053
2. M/s Kanishka Enterprises,
Through its Proprietor
Sh. Nitin Rastogi,
C-11/155, Ground Floor,
Yamuna Vihar, Delhi-110053 .....Plaintiffs
Vs
1. Sh. Abhishek Giri,
Through its proprietor
M/s D.C. Word,
H. No. 348, Pocket-4
Sector-2, Rohini, Delhi.
2. M/s D.C. Word,
Through its proprietor
Sh. Abhishek Giri
H. No. 348, Pocket-4
Sector-2, Rohini, Delhi ....Defendants
Date of Institution : 25.11.2023
Date of Arguments : 18.10.2024
Date of Judgment : 18.10.2024
JUDGMENT
1. This is a commercial suit for recovery of Rs. 68,54,224/-
(Rupees Sixty Eight Lacs Fifty Four Thousand Two Hundred
Twenty Four Only) alongwith
pendente lite and future interest
@18% per annum as filed by plaintiffs against the defendants.
2. The case of the plaintiffs is that the plaintiff no. 1 is the
proprietor of plaintiff no. 2, who is engaged in the business of
cotton yarn for the last many years under the name and style of
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 1 of 12
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‘M/s Kanishka Enterprises’ and defendant no. 1 is the proprietor
of defendant no. 2 who is engaged in the business of fabrics. It is
submitted that defendants used to purchase the goods from the
plaintiffs since 2016 on credit basis and the defendants used to
make the payment partly to the plaintiffs against the invoices and
on the request/demand of the defendants, plaintiffs used to supply
goods to the defendants regularly and defendants used to make
the part payments of previous bills. It is stated that the
defendants purchased the materials from the plaintiffs vide
following invoices:-
S. No. Invoice No. Date Amount
1 G-003 04.04.2018 Rs. 3,94,632/-
2 G-005 10.04.2018 Rs.6,05,079/-
3 G-016 17.04.2018 Rs. 5,10,521/-
4 G-025 30.04.2018 Rs. 2,48,290/-
5 G-029 05.05.2018 Rs. 2,39,803/-
6 G-036 09.05.2018 Rs. 4,93,807/-
7 G-044 22.05.2018 Rs. 2,01,477/-
8 G-048 23.05.2018 Rs. 1,95,821/-
9 G-053 28.05.2018 Rs. 2,06,010/-
10 G-060 30.05.2018 Rs. 2,03,994/-
11 G-061 31.05.2018 Rs. 4,02,352/-
12 G-071 14.06.2018 Rs. 4,21,372/-
13 G-073 14.06.2018 Rs. 2,08,127/-
14 G-074 14.06.2018 Rs. 4,41,587/-
15 G-081 20.06.2018 Rs. 4,14,373/-
16 G-084 27.06.2018 Rs. 6,36,762/-
17 G-085 27.06.2018 Rs. 2,82,566/-
18 G-087 01.07.2018 Rs. 3,25,878/-
19 G-088 01.07.2018 Rs. 2,11,302/-
20 G-089 07.07.2018 Rs. 2,17,686/-
21 G-102 20.07.2018 Rs. 4,67,754/-
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 2 of 12
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22 G-104 20.07.2018 Rs. 2,13,413/-
23 G-108 22.07.2018 Rs. 4,36,590/-
24 G-118 03.08.2018 Rs. 2,12,972/-
25 G-122 03.08.2018 Rs. 4,50,071/-
26 G-138 29.08.2018 Rs. 2,18,295/-
27 G-140 29.08.2018 Rs. 4,25,216/-
28 G-146 29.08.2018 Rs. 1,82,528/-
29 G-165 11.09.2018 Rs. 3,26,918/-
30 G-170 13.09.2018 Rs. 4,07,411/-
31 G-172 13.09.2018 Rs. 3,84,405/-
32 G-178 19.09.2018 Rs. 91,266/-
33 G-182 21.09.2018 Rs. 91,371/-
34 G-185 22.09.2018 Rs. 26,481/-
35 G-188 27.09.2018 Rs. 95,550/-
36 G-189 29.09.2018 Rs. 95,025/-
37 G-197 04.10.2018 Rs. 2,42,960/-
38 G-215 24.10.2018 Rs. 3,97,583/-
39 G-217 24.10.2018 Rs. 3,85,308/-
40 G-225 01.11.2018 Rs. 1,83,803/-
41 G-231 15.11.2018 Rs. 91,718/-
42 G-239 20.11.2018 Rs. 91,928/-
43 G-241 21.11.2018 Rs. 20,580/-
44 G-246 22.11.2018 Rs. 94,290/-
45 G-249 23.11.2018 Rs. 93,870/-
46 G-253 26.11.2018 Rs. 21,000/-
47 G-255 27.11.2018 Rs. 93,870/-
48 G-256 28.11.2018 Rs. 94,500/-
49 G-257 29.11.2018 Rs. 94,500/-
50 G-258 30.11.2018 Rs. 93,975/-
51 G-260 03.12.2018 Rs. 41,895/-
52 G-264 17.12.2018 Rs. 6,52,440/-
53 G-267 18.12.2018 Rs. 94,290/-
54 G-270 19.12.2018 Rs. 94,080/-
55 G-274 20.12.2018 Rs. 21,000/-
56 G-278 24.12.2018 Rs. 90,746/-
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 3 of 12
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57 G-279 25.12.2018 Rs. 90,746/-
58 G-280 27.12.2018 Rs. 10,710/-
59 G-285 07.01.2019 Rs. 1,92,964/-
60 G-289 12.01.2019 Rs. 2,00,503/-
61 G-284 23.01.2019 Rs. 3,91,020/-
62 G-298 28.01.2019 Rs. 2,00,503/-
63 G-304 05.02.2019 Rs. 93,870/-
64 G-308 10.02.2019 Rs. 92,138/-
65 G-310 13.02.2019 Rs. 5,26,949/-
66 G-317 20.02.2019 Rs. 1,22,212/-
67 G-318 20.02.2019 Rs. 4,70,035/-
68 G-327 28.02.2019 Rs. 4,06,400/-
69 G-330 07.03.2019 Rs. 5,42,624/-
70 G-331 20.03.2019 Rs. 5,36,651/-
71 G-333 20.03.2019 Rs. 3,81,029/-
72 G-345 26.03.2019 Rs. 93,340/-
73 G-346 27.03.2019 Rs. 91,222/-
74 G-347 28.03.2019 Rs. 18,385/-
75 G-349 31.03.2019 Rs. 3,65,243/-
76 G-352 31.03.2019 Rs. 3,98,730/-
77 KE/19-20/5 07.04.2019 Rs.2,33,604/-
78 KE/19-20/6 07.04.2019 Rs.3,64,195/-
79 KE/19-20/9 10.04.2019 Rs.4,16,458/-
80 KE/19-20/13 19.04.2019 Rs.3,90,915/-
81 KE/19-20/16 20.04.2019 Rs.9,63,493/-
82 KE/19-20/22 03.05.2019 Rs.3,85,193/-
83 KE/19-20/27 15.05.2019 Rs.1,99,455/-
84 KE/19-20/38 28.05.2019 Rs.6,17,641/-
85 KE/19-20/40 29.05.2019 Rs. 95,813/-
86 KE/19-20/43 30.05.2019 Rs. 94,500/-
87 KE/19-20/45 31.05.2019 Rs.86,013/-
88 KE/19-20/47 01.06.2019 Rs.94,292/-
89 KE/19-20/48 06.06.2019 Rs. 46,963/-
90 KE/19-20/66 04.07.2019 Rs.4,17,774/-
91 KE/19-20/78 23.07.2019 Rs.3,12,334/-
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 4 of 12
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92 KE/19-20/152 11.11.2019 Rs.85,005/-
93 KE/19-20/153 13.11.2019 Rs.83,588/-
94 KE/19-20/159 22.11.2019 Rs.48,615/-
95 KE/19-20/161 30.11.2019 Rs. 53,781/-
Total Rs. 2,41,96,647/-
3. It is averred that as per ledger account of plaintiffs, the
defendants are liable to pay Rs.69,69,987/- and the defendants
lastly paid an amount of Rs. 2,00,000/- to the plaintiffs as part
payment on 19.03.2020. It is further averred that thereafter, the
defendants did not make any payment to the plaintiffs against the
goods purchased by them.
4. It is further case of the plaintiffs that after making various
efforts and requests, the defendants issued various cheques in
discharge of their liability in favour of the plaintiffs and when the
plaintiffs presented those cheques, the same were dishonoured
with the remarks “Payment Stopped by Drawer” vide memos all
dated 14.03.2023 respectively. It is further stated that thereafter,
the defendants did not make the payment till date, rather they
flatly refused to make the payment.
5. It is further submitted that thereafter the legal demand
notices were issued upon the defendants in respect of
dishonouring of the cheques, but the defendants did not comply
with the same as such the plaintiffs filed complaint cases qua the
dishonoured cheques u/s 138 of NI Act, before the concerned
MM, District North East, Karkardooma Courts, Delhi.
6. It is further submitted that the plaintiffs filed a pre-
mediation litigation before the DLSA, North East District,
Karkardooma Courts, Delhi but the defendants never joined the
proceedings intentionally and deliberately and on 17.04.2023, the
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 5 of 12
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DLSA concerned issued “Non Starter Report.
7. The plaintiffs pray that a decree may be passed in their
favour and against the defendants for an amount of
Rs. 68,54,224/-alongwith
pendente lite and future interest @18%
per annum from the date of filing of suit till realization along
with costs of the suit. Hence, the present suit.
8. From the perusal of the record, it is revealed that the
defendants put their appearance through counsel Sh. K.C.
Sharma but they did not file written statement within the
stipulated period and accordingly, their defence was struck off
vide order dated 21.05.2024
9. The plaintiff no. 1 led his evidence as PW1 and tendered
his evidence by way of affidavit Ex.PW1/A and relied upon the
following documents:
1. Computer print out of 95 invoices issued by plaintiff firm
to the defendant i.e. Ex. PW1/1 to Ex. PW1/95.
2. Computer generated copy of ledger account for the period
01.04.2016 to 31.07.2022 i.e. Ex. PW1/97.
3. Certified copies of 11 complaints u/s 138 of NI Act
alongwith cheques and their returning memos, legal notice
and postal receipts i.e. Ex. PW1/98 (Colly) to Ex.
PW1/108 (Colly).
4. Non Starter Report i.e. Ex. PW1/109.
5. Certificate u/s 65 B of Indian Evidence Act in support of
computerized print out of invoices and ledger i.e. Ex.
PW1/110.
10. I have heard Sh. Kamal Jindal, Ld. Counsel for the
plaintiffs and Mr. Yusuf Khan, Ld. Counsel for defendants. I have
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 6 of 12
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also gone through the written submissions as filed on behalf of
plaintiffs and records of the case.
11. PW-1 in his affidavit of evidence Ex. PW1/A deposed that
the defendants had purchased the material from the plaintiffs vide
invoices Ex. PW1/1 to Ex. PW1/96 and as per ledger account
maintained by the plaintiffs for the period 01.04.2016 to
31.07.2022 i.e. Ex. PW1/97, the outstanding amount against the
defendants is Rs.69,69,987/-. PW-1 further deposed that to
discharge his liability, defendants issued cheques amounting to
Rs.68,54,224/- but the same were dishonoured on the
presentation with the remarks ‘Payment Stopped by the Drawer’
and plaintiffs filed criminal complaint cases u/s 138 of NI Act
against the defendants. The certified copies of the cheques and
criminal complaints have been exhibited as Ex. PW1/98 to
Ex. PW1/108. PW-1 was also cross-examined by Ld. Counsel for
defendants in order to discredit the case of plaintiffs only. In an
authority titled as Sunil Kumar Sharma vs. Preeti Sharma,
MAT.APP. (F.C.) No. 116/2021, Hon’ble High Court of Delhi has
observed as under and I quote :
“
A Division Bench of this Court applied the ratio of
the decision of Modula India (supra) in Kulbhushan
Seth v. Seema Seth &Ors., ILR (2008) 2 Del 698.
The defence of the appellant was struck off by the
learned Single Judge because the appellant failed to
file an affidavit disclosing his gross salary in petition
for maintenance by the respondent. After referring to
the above extract from Modula India(supra), the
Division Bench held as follows:
"5. A perusal of the above judgment of the Hon'ble
Supreme Court makes it clear that the right of the
defendant in such a situation is to cross-examine the
plaintiff's witnesses and to address arguments on the
basis of the plaintiff's case. It has also been held that
in no circumstances the cross-examination can be
permitted to travel beyond the legitimate scope and
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 7 of 12
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to convert itself virtually to a presentation of the
defendant's case either directly or in the form of
suggestions put to the plaintiff's witnesses. In our
view, this itself shows that the judgment of the
Hon'ble Supreme Court does not support the plea
advanced by the learned Counsel for the appellant
and on the contrary supports the stand of the
respondent that the appellant's written statement
cannot be taken in account. Accordingly, there is no
merit in the appeal".
12. Ld. Counsel for defendants argued that PW-1 in his cross-
examination has admitted that he is dealing as a Commission
Agent therefore he cannot claim value of the goods supplied. In
this regard, PW-1 deposed that he does not keep any goods at his
office as he is dealing as a Commission Agent and used to supply
the goods purchased by a party from the supplier. Thus, as per
case of the plaintiffs, they had supplied the goods after
purchasing from the supplier to the defendants as per their
instructions and all the invoices i.e. Ex. PW1/1 to Ex. PW1/96
show that same were billed to defendants and the ledger account
Ex.PW1/97 also shows outstanding amount against the
defendants as Rs. 69,69,987/- as closing balance on 31.03.2020.
Defendants were also making part payments of the goods
supplied through these invoices as reflected from ledger account
Ex. PW1/97. To a specific question, as put by Ld. Counsel for
defendants, PW-1 in his cross-examination has deposed that he
had not sold the goods as mentioned in invoice Ex. PW1/16 to
M/s Aman Daman Ranholla, however, he sold the goods to the
defendants and that he used to give goods to defendants on credit
basis and payments were to be made within one or two months
and there was no written agreement regarding the terms of the
payment to be made by the defendants. Ld. Counsel for
defendants has cross-examined the plaintiff no. 1 at length but
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 8 of 12
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nothing came on record which may diminish evidentiary value of
his statement. All the invoices Ex. PW1/1 to Ex. PW1/96 show
that same were billed to defendants and the ledger account
Ex. PW1/97 also shows outstanding amount against the
defendants as Rs. 69,69,987/-. Defendants had also issued
cheques amounting to Rs.68,54,224/- and certified copies of
those cheques along with criminal complaints have been proved
as Ex. PW1/98 to Ex. PW1/108.
13. The suit is also commercial in nature and squarely falls
within the purview of section 2 (1) (c) of Commercial Courts Act
and plaintiffs have also duly complied with mandatory provisions
of pre-institution mediation and conciliation as provided in
section 12A of Commercial Courts Act.
14. Moreover, this court has the territorial jurisdiction over the
present case as the place of payment of goods is mentioned on all
the invoices Ex. PW1/1 to Ex. PW1/96 as Kotak Mahindra Bank,
Branch Yamuna Vihar Delhi and the cheques which were issued
by the defendants to discharge their liability were also presented
in the aforesaid branch of the plaintiffs bank situated within the
territorial jurisdiction of this court. This court has also the
pecuniary jurisdiction over the matter since the suit amount
claimed by the plaintiffs is more than the specified value of Rs.3
lacs of the Commercial Court.
15. Ld. Counsel for defendants argued that all the cheques
issued by the defendants are of dated 13.03.2023 but the number
of these cheques are not in continuous serial numbers and
therefore possibility cannot be ruled out that these cheques were
given as a security. It is submitted that if as per pleadings of the
plaintiffs, the last payment of Rs. 2,00,000/- was paid on
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 9 of 12
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19.03.2020, the suit of the plaintiffs is barred by limitation as
filed on 25.11.2023. Per contra, it was argued by ld. Counsel for
plaintiffs that suit of plaintiffs is within limitation as the
defendants in discharge of their liability to pay the outstanding
amount, issued the cheques on 13.03.2023 from which date fresh
period of limitation shall commence as per section 18 of the
Limitation Act. Ld. Counsel for plaintiffs further argued that
plaintiffs are otherwise also entitled for benefit of period
exhausted during the pre-institution mediation and the period for
which Hon’ble Supreme Court has issued directions due to
COVID 19 pandemic. It is thus submitted that the suit of
plaintiffs is within limitation.
16. As per ledger account Ex. PW1/97, defendants lastly made
the payment of Rs. 2,00,000/- on 19.03.2020 and issued cheques
all dated 13.03.2023 to discharge their liability. As per report of
North East District Legal Services Authority, plaintiffs filed
application for pre-institution mediation on 25.03.2023 and a
Non Starter Report was issued on 17.04.2023. As per section 12A
of the Commercial Courts Act, the period of 24 days which was
occupied with the pre-institution mediation shall not be
computed for the purpose of limitation under the Limitation Act.
Further, plaintiffs are entitled for exclusion of the period from
19.03.2020 till 28.02.2022 for the purpose of limitation as
directed by Hon’ble Supreme Court In Re: Cognizance for
Extension of Limitation, Miscellaneous Application No. 21 of
2022, dated 20.01.2022 as under:-
“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
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 10 of 12
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directed that the period from 15.03.2020 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.”
17. Therefore, the period from 19.03.2020 till 28.02.2022 is
excluded for the purpose of calculating period of limitation and
after giving the benefit of the aforesaid period to the plaintiffs for
calculating the period of limitation as per direction of Hon’ble
Supreme Court and the benefit of section 18 of the Limitation
Act as all the cheques issued by defendants were within three
years from the date of last payment, the suit of plaintiffs is within
limitation period as the same was filed on 25.11.2023.
18. From the documents proved on record by PW-1, it is clear
that the defendants had purchased goods from the plaintiffs
through invoices Ex.PW1/1 to Ex. PW1/96 and as per the
ledger account Ex.PW1/97, a sum of Rs.69,69,987/- is
outstanding against the defendants. The defendants had also
issued cheques amounting to Rs.68,54,224/- which were
dishonoured on presentation and plaintiffs also filed criminal
complaints Ex. PW1/98 to Ex. PW1/108. It has been proved
that defendants purchased goods from plaintiffs through
invoices/bills Ex. PW1/1 to Ex. PW1/96 and failed to clear
the outstanding amount. Hence, the plaintiffs are entitled for a
decree as prayed for.
19. Plaintiffs have claimed interest @18% per annum. There is
no agreed contractual rate of interest between the parties.
Therefore, as per section 34 CPC being commercial transactions,
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 11 of 12
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plaintiffs are entitled to
pendente lite and future interest at which
moneys are lent by nationalized bank i.e. @ 9% per annum. In
view thereof, it is held that the defendants are liable to pay to the
plaintiffs a sum of Rs. 68,54,224/- alongwith interest @9% per
annum from the date of filing of suit till realization. Accordingly,
the present suit is decreed for a sum of Rs. 68,54,224/- (Rupees
Sixty Eight Lacs Fifty Four Thousand Two Hundred Twenty
Four Only) alongwith interest @9% per annum from the date of
filing of suit till realization in favour of the plaintiffs and against
the defendants. Costs of the suit are also awarded to the
plaintiffs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court
on 18.10.2024
(Sanjeev Kumar Malhotra)
District Judge (Commercial Court)
North-East District,
Karkardooma Courts, Delhi
CS (Comm.) 126/2023 Nitin Rastogi & Anr. Vs. Abhishek Giri & Anr. page 12 of 12
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