Final Order 9

Order Details: COPY OF JUDGMENT
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IN THE COURT OF SH. BRIJESH KUMAR GARG
DISTRICT JUDGE COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CS (Comm) No. 49/2024
Saraogi Super Sales Pvt. Ltd.
Registered Office at :-
X-49, Pratap Gali, Gandhi Nagar,
Delhi – 110031.
Through its Authorized Representative
Mr. Dharmender
Mobile : 7290097138
E-mail : saraogisupersales.dharmender@gmail.com
.....Plaintiff.
Versus
Satyendra Prasad Yadav,
Prop. M/s Bharat Traders & Dresses,
Ward No. 07, Sugauli Bazar, Sugauli,
Purbi Champaran, Bihar – 845456.
Mobile : 9931041712
E-mail Id : vivekenterprisessgl@gmail.com
.… Defendant.
Date of institution of the case : 18.01.2024
Date of conclusion of the final arguments : 31.05.2024
Date of judgment : 08.07.2024
EXPARTE JUDGMENT
The present commercial suit for recovery of a sum of
Rs.6,34,525/-, along with pendent-lite and future interest @ 18%
per annum has been instituted on behalf of the plaintiff, on
18.01.2024.
CS (Comm.) No.49/2024
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2. It is stated in the plaint that the plaintiff is a Private
Limited Company and is engaged in the business of sale of
readymade garments and the present suit has been instituted
through its Authorized Representative Sh. Dharmender.
3. It is further stated in the plaint that the defendant had
approached the plaintiff for regular supply of various readymade
garments, on credit basis, and on his request, the plaintiff started
supplying the goods to the defendant on credit basis and raised
various bills/invoices which were duly acknowledged by the
defendant.
4. It is further stated in the plaint that during the course of
business, the defendant had placed various orders for supply of
readymade garments w.e.f. September 2018, which the plaintiff
had supplied and the defendant made few payments into the bank
account of the plaintiff, namely ICICI Bank Limited, Nangloi
Branch, Delhi, which were duly adjusted in the account of the
defendant.
5. It is further stated in the plaint that the plaintiff raised
various bills for each and every supply of goods to the
defendant. It is further stated that despite acknowledging the
receipt of goods, and the bills raised by the plaintiff, entire
payment has not been made by the defendant and an amount of
Rs.6,34,525/-, was due and payable by the defendant, as on
05.01.2024.
CS (Comm.) No.49/2024
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6. It is further stated in the plaint that the defendant had
failed to make the said payment despite several requests and
therefore, a legal demand notice dated 01.01.2022 was served
upon the defendant, whereby, the defendant was asked to make
the payment of outstanding amount with interest @ 18% per
annum.
7. It has been prayed that the suit of the plaintiff may be
decreed in favour of the plaintiff and against the defendant, for a
sum of Rs.6,34,525/-, with pendentilte and future interest @ 18%
per annum.
8. After filing of the present suit, the summons of the suit
for settlement of issues were duly served upon the defendant.
But, despite due service, none had appeared on behalf of the
defendant and no written statement was filed on its behalf.
Therefore, vide order dated 19.04.2024, the defendant was
proceeded ‘exparte’.
9. During ‘exparte’ plaintiff’s evidence, the plaintiff has
examined its Authorized Representative Sh. Dharmender, as
PW1, who has filed his affidavit Ex. PW1/A and has proved the
various documents on record as Ex. PW1/1 to PW1/9.
10. Exparte final arguments were addressed by Sh. Varun
Bedi, Advocate for the plaintiff, on 31.05.2024. He had also filed
the following Judgments in support of his contentions :
CS (Comm.) No.49/2024
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i) “Bharat Skins Corporation vs. Taneja Skins Company
Pvt. Ltd.” : RFA (OS) 13/2002 dated December 2011,
passed by Hon’ble Division Bench of Hon’ble High
Court of Delhi ;
ii) “Ashok Prasad vs. M/s Mahalaxmi Sugar Mills” : CS
(OS) 2542/1997, dated 13.09.2013, passed by Hon’ble
High Court of Delhi ;
iii) “Mrs. Veena Jain vs. Sunil Sood” : CS (OS) 1177/2003,
dated 23.07.2012, passed by Hon’ble High Court of
Delhi.
11. I have carefully perused the case file. I have also given
my considered thoughts to the arguments, addressed by the Ld.
Counsel for the plaintiff. I have also perused the judgments cited
by the Ld. Counsel for the plaintiff, in support of his contentions.
12. Perusal of the record shows that the defendant has
remained ‘exparte’ during the trial and has failed to file any
written statement, statement of truth or affidavit of
admission/denial of the documents, as stipulated under the
provisions of The Commercial Courts Act, 2015.
13. The dispute between the parties is
commercial in nature
and is covered within the ambit of section 2 (1) (c) of the
Commercial Courts Act, 2015.
14. The Hon’ble Supreme Court, in the case titled as,
CS (Comm.) No.49/2024
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‘
Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP,
reported as 2019 SCC Online SC 1311’ has held that provisions
of the Commercial Courts Act, 2015 (hereinafter referred to as
the CC Act) are to be strictly followed and adhered to and no
liberal interpretation of the provisions has to be given and it
should be read with narrow sense. It was observed as follows:
“The object and purpose of the establishment of
Commercial Courts, Commercial Divisions and
Commercial Appellate Divisions of the High Court is to
ensure that the cases involved in commercial disputes are
disposed of expeditiously, fairly and at a reasonable cost to
litigants. Keeping in view the object and purpose of the
establishment of the Commercial Courts and fast tracking
procedure provided under the Act, the statutory provisions
of the Act and the words incorporated thereon are to be
meaningfully interpreted for quick disposal of commercial
litigations so as to benefit the litigants especially those
who are engaged in trade and commerce which in turn will
further economic growth of the country.”
(emphasis supplied)
15. This Court has
the territorial jurisdiction over the present
dispute in view of the contents of paragraph number 17 of the
plaint and the fact that the goods/readymade garments were
supplied to the defendant through various modes of transport
from Gandhi Nagar, Delhi and part payments were also received
from the defendant at Delhi.
16. This Court has
the pecuniary jurisdiction also over the
present suit, which is for recovery of Rs.6,34,525/-, along with
pendent-lite and future interest @ 18% per annum, as the amount
claimed by the plaintiff, is as per the specified value, as defined
in section 2 (1) (c) and as per Section 6 of the Commercial
CS (Comm.) No.49/2024
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Courts Act, 2015.
17. The plaintiff had supplied the goods to the defendant
during the period w.e.f. September 2018 to July 2022. Part
payments were also made by the defendant during this period and
last payment was made by the defendant on 05.07.2022.
18. It has been held by the Hon’ble High Court of Delhi, in
case titled as,
‘Bharat Skins Corporation vs. Taneja Skins
Company Pvt. Ltd.’, passed in
‘RFA (OS) 13/2002, dated
21.12.2011’, as under:
“20. In case of a running and non-mutual account between the
buyer and seller,when goods are delivered by the seller to the
buyer, the value of the goods is debited in the debit column and
when amounts are paid by the buyer to the seller, they are
entered in the credit column. The difference is continuously
struck in the column for balance. In such a case, when the buyer
defaults to make balance payment, the seller s action is not for	‟
the price of goods sold and delivered but for the balance due at
the foot of an account. Thus, Article 14 would have no
application in suits of recovery of money due on a running and a
non-mutual current account between the buyer and seller.
21. In this regards, it is important to note the following
observations made in the decision reported as(1849) 7 C. 3. 106
Dood v. Wigleywhen it was observed:-
“Where goods are ordered of a tradesman on the 1st of
January and distinct orders for other goods are given on the
2nd, 3rd, 4th, 5th, etc., if from the previous dealings between
the parties, or from general usage, or otherwise, it is to be
inferred that it was contemplated by the parties, that, in the
event of the dealing continuing, the several items should be
included in the monthly, quarterly, or yearly bills, the result of
such an arrangement, and the legal position of the parties,
seems to be this,-upon the delivery and acceptance of the first
parcel of goods, delivered on the 1st of January, an entire
contract is created, and a complete cause of action accrues, the
tradesman, being) under no engagement to sell other goods, or
to give credit beyond the price of the articles then delivered :
when, on a subsequent day, other goods are delivered and
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accepted, a new contract arises, not simply a contract to pay
for the goods then delivered, but a new entire contract by
which the tradesman waives his existing right to payment off
the goods delivered on the 1st of January, and the purchaser
agrees to pay for both parcels as upon one entire sale.. After
the successive waiver and extinguishment of each preceding
contract, the only subsisting contract and cause of action ex
contractu will be the last.”
22. The observations in the decision reported as (1856) 18 C.B.
325 Bonsey v Woodsworthare also worthy of being noted; and
are as under:-
"where a tradesman has a bill against a party for any amount, in
which the items are so connected together that it appears that the
dealing is not intended to terminate with one contract, but to be
continuous, so that one item, if not paid, shall be united with
another, and form one continuous demand, the whole together
forms but one cause of action and cannot be divided."
23. The upshot of the above discussion is that Article 14 of the
Schedule to the Limitation Act, 1963 does not apply to suits for
recovery of money due on a running and current but a non-
mutual account between the buyer and seller i.e. an account of
the kind with which we are dealing.”
24. There being no Article in the Schedule to the Limitation
Act, 1963 dealing with suits for recovery of money due on
running and current but non-mutual accounts, in such
circumstances, the residual article viz. Article 113 applies to
such suits.”
(emphasis supplied)
19. The present suit has been filed on 16.01.2024 and
therefore, the same is within the period of limitation.
20. The plaintiff has also filed an application for pre-
litigation mediation on 26.08.2023 and a non starter report was
issued by DLSA, Shahdara, District, Delhi on 22.09.2023. The
mandatory requirement of section 12 A of the CC Act has been
complied by the plaintiff.
21. The averments made in the plaint and the affidavit Ex.
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PW1/A have remained uncontroverted, unrebutted and
unchallenged and can be presumed to be admitted as correct. The
defendant has failed to contest the case or put up any defence.
There is no reason to disbelieve the averments made in the plaint
and the relevant documents, which have been filed on record,
appear to be of an unimpeachable character.
22. The contents of the affidavit Ex. PW1/A and the
documents filed on record, i.e., the Ledger Statement Ex. PW1/1
; Tax Invoices along with E-way bills are Ex. PW1/2
(Collectively 27 pages) ; Board Resolution dated 06.05.2022, in
favour of Sh. Dharmender, AR for the plaintiff is Ex. PW1/3 ;
Computer generated details of GST of the defendant Ex. PW1/4 ;
Certificate of Incorporation of the plaintiff Company, Ex.
PW1/5 ; Legal Notice dated 01.01.2022, Ex. PW1/6 ; Non-
starter report dated 22.09.2023, Ex. PW1/7 ; Certificate u/s 65B
of the Indian Evidence Act, Ex. PW1/8 and the Affidavit of Sh.
Dharmender, AR of the plaintiff u/o XI Rule 6 of the Commercial
Courts Act, 2015, Ex.PW1/9, have all remained unchallenged,
unrebutted and uncontroverted.
23. From the material on record, it is clear that an amount of
Rs.6,34,525/-, was due and outstanding against the defendant as on
05.01.2024.
24. In the plaint, the plaintiff has claimed interest on the due
amount @ 18% per annum, and the tax invoices Ex. PW1/2
(Collectively) also mentions a condition that, in case, payment was
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not made within a period of 45 days, an interest @18% per annum
will be charged. But the interest @ 18% per annum is highly
excessive. Even the provisions of Section 34 of the CPC prescribe
the interest only @ 6% per annum.
25. It has been held by the Hon’ble High Court of Delhi, in case
titled as, ‘
Mrs. Veena Jain vs. Sunil Sood’, passed in, ‘
CS (OS)
No.1177/2003’,
on 23.07.2012, as relied by the Ld. counsel for the
plaintiff, as under :
“8. I am however not agreeable to grant the huge rate of 24%
interest as claimed by the plaintiff. The Supreme Court in the
recent chain of judgments reported as Rajendra Construction Co.
v. Maharashtra Housing & Area Development Authority and
others, 2005 (6) SCC 678, McDermott International Inc. v. Burn
Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan
State Road Transport Corporation v. Indag Rubber Ltd., (2006)
7 SCC 700, Krishna Bhagya Jala Nigam Ltd. v. G.Harischandra,
2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete
Construction Pvt. Ltd (2009) 3 Arb. LR 140 (SC) has mandated
that Courts must reduce the high rates of interest on account of
the consistent fall in the rates of interest in changed economic
scenario. In my opinion, plaintiff will be thus entitled to interest
@ 9% per annum on the principal amount due of
`27,84,947.50/-for the period prior to the filing of the suit i.e.
from 10.5.2000 till the date of filing of the suit. Plaintiff will
also be entitled to pendente lite and future interest till payment
@ 9% per annum simple.”
(emphasis supplied)
26. In view of the above judgment and keeping in view the
prevailing rates of bank interest and the nature of business
transactions between the parties, an interest @ 9% per annum is
also awarded in favour of the plaintiff and against the defendant, on
the principal amount of Rs.6,34,525/-, w.e.f. 05.01.2024.
27
. Accordingly, the present suit is hereby decreed, in favour of
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the plaintiff and against the defendant, for an amount of
Rs.6,34,525/- along with simple interest @ 9% per annum w.e.f.
05.01.2024 till its realization; with costs and expenses i.e. the fees
of the counsel for the plaintiff, as provided under the High Court
of Delhi, Rules.
The decree sheet be prepared accordingly.
File be consigned to record room, after due compliance.
Announced in the open Court on
this 8th day of July, 2024.
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara District, KKD, Delhi
rs
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