Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Judg. In Comm. Suit 2562019
MHCC010131132019 Presented on : 16/11/2019
Registered on : 12/12/2019
Decided on : 17/02/2024
Duration : 04Y/03M/01D
Exh.92
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.256 OF 2019
PBC DISTRIBUTORS
Represented through its Sole Proprietor,
Nilesh Vasant Shah HUF, as Mr.Nilesh
Vasant Shah as Karta, having office at 2,
Ground floor, Anant C.H.S.L. Lajpat Rai
Road, Vile Parle(West), Mumbai400056 …PLAINTIFF
VERSUS
1. National Education Society
Engaged in running an Educational
Institution, known as NES International
School at Swapna Nagari, Malabar Hill
Road, Mulund(West), Mumbai400 082.
2. Dr. Varadaranjan, FounderPrincipal
National Education Society having office
at Swapna Nagari, Malabar Hill Road,
Mulund(West), Mumbai400 082.
3. Dr. Balasubramaniam V. Director
National Educational Society engaged in
running an Educational Institution, at
Swapna Nagari, Malabar Hill Road,
Mulund(West), Mumbai400 082.
…DEFENDANTS
Shri.Pankaj Pande, learned advocate for plaintiff.
Shri.Hardik Desai, learned advocate for defendant
CORAM : H.H. JUDGE SHRI. VISHAL SADASHIVRAO GAIKE,
(COURT ROOM No.32)
-- 1 of 25 --
2 Judg. In Comm. Suit 2562019
J U D G M E N T
(Delivered on 17/02/2024)
1. This is a suit for recovery of sum of Rs.11,87,724/
which includes the principal sum of Rs.9,35,585/ and the interest
of Rs.2,52,139/) calculated upto the date of filing of the present
suit calculated @ 5 % p.a. from the date of suit till realization of
the entire amount.
2. It is case of plaintiff that, plaintiff is engaged in the
business interalia as wholesalers and/or resellers of books and
other allied materials and supplies the same to schools and other
educational institutions under the name as “PBC Distributors”. The
defendant No.1 is an educational institution with name as
“National Education Society”, defendant No.2 is the Founder
Principal of defendant No.1 and defendant No.3 is the director of
the defendant No.1. The defendant Nos.2 and 3 are in charge and
responsible for the management and administration of day today
affairs of the defendant No.1 and have been thus impleaded as
necessary parties to the present suit. The defendant No.1 operates
several educational institutions all over Mumbai and elsewhere
including National Education Society International School Mumbai
(NESISM).
3. Pursuant to the request of the defendants, the plaintiff
sold and delivered in the ordinary course of business various books
and other allied materials (hereinafter referred to as 'the said
goods' for the sake of brevity) which were accepted by the
defendants without any dispute or demur. Accordingly, the
plaintiff raised various invoices more particularly described below,
which were duly accepted by the defendants without any dispute
-- 2 of 25 --
3 Judg. In Comm. Suit 2562019
or demur. As regards the books returned worth Rs.2,793/ the
appropriate credit note was issued, which is also duly accounted
for as below:
Sr. No. Invoice No. Date Amount
1. 11339 09/04/2014 61,344/
2. 11356 10/04/2014 34,786/
3. 11401 17/04/2014 16,500/
4. 12530 01/09/2014 1,71,322/
5. 12533 01/09/2014 54,798/
6. 12577 04/09/2014 11,603/
7. 12600 05/09/2014 35,549/
8. 12650 11/09/2014 15,982/
9. 12705 18/09/2014 29,547/
10. 12832 08/10/2014 34,557/
11. 12883 16/10/2014 16,898/
12. 12933 30/10/2014 21,870/
13. 13081 27/11/2014 18,204/
14. 13094 29/11/2014 5,775/
15. 13143 09/12/2014 24,310/
16. 13175 15/12/2014 3,407/
17. 13389 05/02/2015 1,952/
18. 13974 27/04/2015 8,687/
19. 14013 02/05/2015 5,08,687/
20. 14050 07/05/2015 2,53,298/
21. 14122 18/05/2015 15,852/
22. 14163 25/05/2015 14,280/
23. 14191 29/05/2015 11,599/
24. 14235 04/06/2015 18,554/
25. 14097 14/05/2015 31,866/
Total Invoice Amount 14,18,434/
Amount Received 4,82,849/
-- 3 of 25 --
4 Judg. In Comm. Suit 2562019
Credit Note 2,793/
Total Principal Outstanding 09,35,585/
4. As per the terms and conditions mentioned in the said
invoices, the payment was to be made within a period of 30 days,
and in default of such payment, plaintiff is entitled to charge 5%
p.a. after raising various invoices, plaintiff had time and again
requested the defendants to make the payments. The plaintiff had
on various occasions sent its representatives for collecting the
outstanding amount payable by the defendants. Thereafter, vide
their letter dtd.13/06/2017 acknowledged their liability and
promised to make the payment in installments. Thereafter,
defendants made a part payment of Rs.4,82,849/ on 17/07/2017
out of the total outstanding amount of Rs.14,18,434/. Thereafter,
plaintiff made repeated requests and reminders to the defendants
for making the balance payment but the defendants failed and
neglected to make the payments.
5. The plaintiff therefore, upon default of payment of the
amount in the said invoices by the defendants, sent a legal notice
to the defendant Nos.1 and 2 dtd.27/11/2018. However, still no
payment has been made by the defendants. From the conduct of
the defendants, it is clear that the defendants have no intention to
make the said payments. In the above circumstances, the plaintiff
is constrained to file this suit.
6. That, as per the statement of accounts maintained by
the plaintiff, the total amount due payable by the defendants is
Rs.9,35,585/. Since the defendants have failed and neglected to
make the payment on or before the respective dues they are liable
-- 4 of 25 --
5 Judg. In Comm. Suit 2562019
to pay interest @ 5% p.a. on the principal unpaid amount.
According to the plaintiff, the invoices raised by it are written
contracts and the cause of action for filing the suit arose on
13.06.2017 when the defendants vide their letter dtd.13.06.2017
promised to make the payments in installments. It again arose on
17.07.2017 when the defendants made payment of one installment
of Rs.4,82,849/ and thereafter failed and neglected to make any
payment either in installment or otherwise. Therefore, the suit
filed on 16/11/2019 is filed within the limitation period.
7. Defendants filed their written statement at Exh.11. It
is the contention of the defendants that, no case has been made
out by the plaintiff for filing the present suit hence, it deserves to
be dismissed with compensatory costs. That, the plaint contents
several false statements and suppresses material facts. The
defendants do not admit the correctness of any statements or
averments made in the plaint. The plaint does not disclose any
cause of action.
8. That, National Education Society International School,
Mumbai, is one of the school run by defendant No.1. The alleged
transaction which forms the subject matter of the present
Commercial Suit is concerned with the said school. As per the
records maintained by the defendant No.1, the invoices at serial
Nos.6 to 14, 18 and 20 to 22 of the said table in paragraph No.3 of
the plaint are the only invoices, which are presupposed by proper
trail of documents from purchase order to delivery challan and
hence, the same are the only invoices accepted by the defendant
No.1. Therefore, to make payment in respect of invoice bearing
No.13026 dated 17.11.2014 and invoices at serial No.6 to 14, 18
-- 5 of 25 --
6 Judg. In Comm. Suit 2562019
and 20 to 22 of the said table, an amount of Rs.4,82,849/ was
paid by the defendant No.1 through cheque No.761211 to the
plaintiff. The invoices which are at serial No.1 to 5, 5 to 17 and 23
to 25 of the said table have not been received by the defendants at
any point of time. Therefore, the question of making payment in
respect of those invoices does not arise.
9. The defendants have never raised any purchase orders
in respect of the goods which form the subject matter of invoices at
serial No.16, 17, 19 and 23 to 25 of the said table. That, the said
fact of payment of Rs.4,82,849/ regarding invoice No.13026
dated 17.11.2014 and invoices at serial No.6 to 14, 18 and 20 to
22 of the said table was informed to the plaintiff vide letter dated
06.07.2017. Due to inadvertence, an amount of Rs.4,82,000/ was
mentioned instead of amount of Rs.4,82,849/ in the said letter. It
was informed to the plaintiff that, the said amount be treated as
full and final payment against the dues of the defendant No.1. The
said letter was sent to the plaintiff through Registered Post AD on
13.07.2017 but, the plaint does not mention the receipt of the said
letter. Plaintiff did not address a single letter contesting the
contents of letter dated 06.07.2017 therefore adverse inference be
drawn against the plaintiff. On 13.06.2017 one of the
representative of the plaintiff had misbehaved with the staff of the
defendants therefore, through its letter dated 13.06.2017 the
defendants had specifically informed the plaintiff that after
scrutinizing the bills they will be effecting the payments on
installments.
10. That, the payment of alleged bills of plaintiff was subject
-- 6 of 25 --
7 Judg. In Comm. Suit 2562019
to scrutiny by the defendants. Therefore, the contents of letter dated
13.06.2017 nowhere leads to conclusion that the defendants had
acknowledged their liability. As the defendants had made their stand
clear in letter dated 06.07.2017 therefore, they did not give reply to
plaintiff's notice dated 27.11.2018. Hence, the false and baseless
claim of the plaintiff should be dismissed with costs.
11. The plaintiff examined PW1 Jiten N. Shah, PW2
Amarnath Ram Pyari Saroj, PW3 Mustafa Zoeb Nalwala and PW4
Nilesh Vasant Shah and filed their evidence affidavits at Exh.7, 56, 57
and 59 respectively and proved documents Exh.18 to 49. The
defendant examined DW1 Dr. Balsubramaniyam Varadrajan at
Exh.50, DW2 Primrose Darrel Misquitta at Exh.52, DW3 Rosalbah
Clayton Gomez and DW4 Pravin Vitthal Shivarkar at Exh.84 and
proved documents Exh.69, 70, 72, 80 and 81. The defendants filed
evidence close pursis at Exh.87.
12. The plaintiff filed its Written Notes of Arguments at
Exh.89 and defendant filed Written Notes of Argument at Exh.88.
Heard the final arguments of the learned advocate for the plaintiff
and defendants. The learned advocate of plaintiff on the Judgment of
Hon'ble Patna High Court in the matter of Ferro Alloys Corporation
Limited Vs. Rajhans Steel, 2000 99 CompCas 426 Patna.
13. The learned advocate of defendant relied on the
Judgment of Delhi High Court in the matter of, Win Cable and
Datacom Private Limited Vs. M/s. Grass Link Advertising Pvt. Ltd.
And Anr. I. A. No.7657 of 2009 in C.S. (OS) 655 of 2008, on the
Judgments of Hon'ble Supreme Court of India in the matter of
Chandradhar Goswami and Ors. Vs. Gouhati Bank Limited, AIR
1967 SC 1058 and in the matter of Sant Lal Mahton Vs. Kamlaprasad
-- 7 of 25 --
8 Judg. In Comm. Suit 2562019
and Ors. 1951 SCC 1008 and on the order of Hon'ble Bombay High
Court in the matter of Concrete Additives and Chemicals Pvt. Ltd.
Vs. S. N. Engineering Services Pvt. Ltd. Dated 17.01.2022 in
Arbitration Application (L) No.23207 of 2021.
14. My learned Predecessor has framed issues at Exh.14. I
have recorded my findings thereon for the reasons stated as under.
Sr.
No
ISSUES FINDINGS
1 Whether the plaintiff proves that, it had
supplied various books and other allied
materials and the defendants has failed to
make the payment to the tune of
Rs.9,35,585/ (Rupees Nine Lakhs Thirty
Five Thousand Five Hundred and Eighty
Five Only) ?
...In the Affirmative.
2 Whether the plaintiff is entitled to
recover the amount of Rs.11,87,724/
(Rupees Eleven Lakhs Eighty Seven
Thousand Seven Hundred and Twenty
Four Only) including sum of
Rs.9,35,585/ (Rupees Nine Lakhs Thirty
Five Thousand Five Hundred Eighty Five
Only) and the interest of Rs.2,52,139/
(Rupees Two Lakhs Fifty Two Thousand
One Hundred Thirty Nine only) @ 5%
p.a. upto the date of filing of the suit ?
...In the Affirmative.
3 Whether the plaintiff is entitled for
interest @ 5% p.a. on the amount of
Rs.11,87,724/ from the date of filing of
the suit till its realisation ?
...In the Affirmative.
4 Whether the suit is within the limitation ? ...In the Affirmative.
5 What order? ...As per final
order.
REASONS
AS TO ISSUE Nos.1 to 3 :
-- 8 of 25 --
9 Judg. In Comm. Suit 2562019
15. As all the three issues are interconnected hence, they are
being discussed here together to avoid repeated discussion on evidence.
The issue no.1 pertains to the supply of various books and allied
materials by the plaintiff to the defendant. To prove this issue, the
plaintiff firstly examined PW1 Jiten Shah. The affidavit and additional
affidavit of evidence in lieu of examinationinchief as (PW1) is filed at
Exh.7. The PW1 has repeated and reiterated in his evidence affidavits,
the contents of the plaint. He has relied upon the following documents :
Exh.18 Original Power of Attorney, Exh.19, Exh.20 office copy of
invoice No.011356 dated 10.04.2014, Exh.21 office copy of Invoice
No.011401 dated 17.04.2014, Exh.22 office copy of Invoice No.012530
dated 01.09.2014, Exh.23 office copy of Invoice No.012533 dated
01.09.2014, Exh.24 office copy of Invoice No.012577 dated 04.09.2014,
Exh.25 office copy of Invoice No.012600 dated 06.09.2014, Exh.26
office copy of Invoice No.012650 dated 11.09.2014, Exh.27 office copy
of Invoice No.012705 dated 18.09.2014, Exh.28 office copy of Invoice
No.012832 dated 08.10.2014, Exh.29 office copy of Invoice No.012883
dated 16.10.2014, Exh.30 office copy of Invoice No.012933 dated
30.10.2014, Exh.31 office copy of Invoice No.013081 dated 27.11.2014,
Exh.32 office copy of Invoice No.013094 dated 29.11.2014, Exh.33
office copy of Invoice No.13143 dated 09.12.2014, Exh.34 office copy of
Invoice No.13175 dated 15.12.2014, Exh.35 office copy of Invoice
No.13389 dated 05.02.2015, Exh.36 office copy of Invoice No.13974
dated 27.04.2015, Exh.37 office copy of Invoice No.14013 dated
02.05.2015, Exh.38 office copy of Invoice No.14050 dated 01.09.2014,
Exh.39 office copy of Invoice No.14122 dated 18.05.2015, Exh.40 office
copy of Invoice No.14163 dated 25.05.2015, Exh.41 office copy of
Invoice No.14191 dated 29.05.2015, Exh.42 office copy of Invoice
No.14235 dated 04.06.2015, Exh.43(colly.) office copy of Invoice
-- 9 of 25 --
10 Judg. In Comm. Suit 2562019
No.14097 dated 14.05.2015 alongwith certificate with respect to
invoices, Exh.44 office copy of credit note No.000120 dated
01.09.2014, original letter dated 13/06/2017 same is admitted by the
defendant by endorsemnt below the list, Exh.46 original notice dated
27.11.2018, Exh.47 original postal receipt of booking register post,
Exh.48 original acknowledgment card, Exh.49(colly.) copy of ledger
account maintained by plaintiff a/w. Section 65B Certificate.
16. The PW1 was crossexamined by the learned advocate of
the defendants. He deposed that since last 13 years he is working as a
Sales Officer of the plaintiff. He was specifically questioned regarding
possession of purchase orders in respect of the 25 invoices relied upon
by the plaintiff and he answered that they had received emails of the
orders. He further deposed that the plaintiff did not issue separate
delivery challans and only issued invoices for the goods sold by plaintiff.
He further deposed that the goods were received by Jenging Sir who is
the librarian of the defendant. He was shown eleven invoices i.e. invoice
No.11339, 11356, 11401, 12530, 12533, 13143, 13175, 13389, 14191,
14235 and 14097 and was suggested that the goods stated in those
invoices were not received by the defendants. He denied the said
suggestion.
17. The PW1 was shown letter dated 13.06.2017 Exh.45 and
he denied the knowledge of receipt of said letter by the plaintiff. He was
shown ledger account Exh.49 and was asked regarding the difference in
the outstanding amount and he explained that the said difference was
due to the credit note. He admitted the receipt of payment of
Rs.4,82,849/ from the defendant but, was unable to tell against which
invoice numbers said amount was received. He had further explained
the reason for difference of amount in ledger account Exh.49. He stated
-- 10 of 25 --
11 Judg. In Comm. Suit 2562019
that the said difference was due to the mistake in the opening balance
stated in Exh.49. He was suggested that the credit note (Exh.44) was
false and was also suggested that letter dated 06.07.2017 i.e. Exh.69
was sent by the defendant alongwith cheque for amount of
Rs.4,82,849/. He denied the knowledge regarding the letter Exh.69
and denied the suggestion regarding credit note Exh.44. He also denied
the suggestion that the defendant had made full and final payment of
Rs.4,82,849/. Thus, in my opinion, nothing contrary or untrustworthy
has come on record in the deposition of PW1.
18. Thereafter, the defendant examined PW2 Amarnath Saroj
who was the delivery boy. He has stated in his evidence affidavit Exh.56
that during the year 2014 to 2015 he was directed by Mustafa Z.
Nalwala, Sales Coordinator of plaintiff who deliver the books ordered
by the defendant No.1 School. Mustafa had on each occasion handed
over to him two copies of invoices alongwith the books as per the
quantities mentioned in the said invoices addressed to the defendant
No.1 for delivery and accordingly he had delivered the said books to the
office or library of the defendant No.1. During his crossexamination he
was also asked whether he had delivered all the books mentioned in
Exh.19 to Exh.43. He was unable to name the person who had signed
the acknowledgment on the invoices for receipt of the books. He denied
the suggestion that the books mentioned in invoice Exh.19,20 and 21
were not delivered to the defendants. In the testimony of PW2 delivery
boy, I find nothing untrustworthy.
19. That, further at Exh.57 the evidence affidavit of PW3
Mustafa Nalwala, Sales Coordinator of the plaintiff was filed. He has
deposed that, plaintiff had received various orders for purchase of books
by the defendants and its employees from time to time during the year
-- 11 of 25 --
12 Judg. In Comm. Suit 2562019
20142015 and also before that period. The employees namely Tenzin
and Roopali used to place orders for purchase of books through email of
defendant No.1. He used to arrange for those orders and prepared the
invoices and the goods were delivered by the delivery boy of the
plaintiff. As per the plaintiff's account verified by him, an amount of
Rs.9,35,585/ is outstanding and payable by the defendants towards the
invoices Exh.19 to 43. That, during his crossexamination he was also
suggested that, letter dated 06.07.2017 i.e. Exh.69 was received by the
plaintiff alongwith cheque of Rs.4,82,849/ but, he denied that the said
letter was received by the plaintiff through registered post. He also
denied the suggestion that the said amount of Rs.4,82,849/ was
received by the plaintiff towards particular invoice and deposed that the
defendants had informed that they are making part payment therefore,
no question was asked regarding the odd amount of the payment. Thus,
the evidence of PW3 is also not contradicted or shaken by the
defendants advocate during crossexamination.
20. Lastly, in support of claim of the plaintiff, the evidence
affidavit of PW4 Nilesh Shah was filed. He has stated in his evidence
affidavit that, he is the Karta and Proprietor of plaintiff that M/s. PBC
Distributors. That, during the year 20142015 the employees of the
plaintiff had delivered academic books to the defendant No.1 and its
employees had acknowledged the respective invoices Exh.19 to 43
against the delivery of the goods. Thereafter, under his instructions
statement of accounts showing outstanding dues of Rs.14,18,434/ was
provided to the defendant No.1 and on numerous occasions he had
called upon defendant No.2 to clear the outstanding dues. That, the
letter dated 13.06.2017 issued by the defendant No.1 was received by
the plaintiff wherein it was assured that the outstanding bills would be
cleared after scrutiny. Thereafter, the courier was received in his office
-- 12 of 25 --
13 Judg. In Comm. Suit 2562019
with one cheque of Rs.4,82,849/ and the said cheque was received
without any covering letter. Thus, a principal amount of Rs.9,35,585/
is outstanding and payable alongwith interest by the defendants but,
the same had not been paid. He has categorically submitted that, he had
given Power of Attorney to PW1 on dated 11.01.2021 and had signed
on the same date but there was a mistake in the date of the said Power
of Attorney.
21. The PW4 was shown the letter dated 13.07.2017 i.e.
Exh.45 and he was asked the name of plaintiff's representative who had
behaved in a rude manner but, he denied that any of plaintiff;s
representative had behaved in a rude manner. The PW4 was also
shown the letter dated 06.07.2017 i.e. Exh.69 and was suggested that
the copy of said letter was received by the plaintiff alongwith the
cheque of Rs.4,82,849/ but, he denied this suggestion of receipt of
letter dated 06.07.2017 by the plaintiff. He also denied that the
payment of said amount of Rs.4,82,849/ was received in respect of the
invoices mentioned in the said letter Exh.69.
22. That, the defendants in order to prove their defence
examined DW1 to DW4 and defendant's witnesses prove Exh.69 to
Exh.81. The DW1 DW1 Dr. Balsubramaniyam Varadrajan filed his
evidence affidavit Exh.50 and has stated in the said affidavit that, he is
one of the trustee of the defendant No.1 and is conversant with the facts
of the case therefore, is able to depose on the basis of his personal
knowledge and also on the basis of the records maintained by the
defendant No.1. The contention/evidence of the DW1 in brief is that,
the alleged invoices enlisted in the table contained in the paragraph
No.3 of the plaint form the subject matter of the present suit. The
invoices at serial Nos.6 to 14, 18 and 20 to 22 are the only invoices
-- 13 of 25 --
14 Judg. In Comm. Suit 2562019
which are presupposed by proper trail of documents from purchase
orders to delivery challans and hence, only those invoices are accepted
by defendant No.1. To make payment in respect of invoice No.13026
dated 17.11.2014 and the invoices at serial No.6 to 14, 18 and 20 to 22
of the said table, an amount of Rs.4,82,849/ were paid by the
defendant No.1 to the plaintiff. The other invoices which are at serial
Nos.1 to 5, 15 to 17 and 23 to 25 of the said table were not received by
the defendants at any point of time therefore, the question of making
payment for those invoices to the plaintiff does not arise. The
defendants had never raised any purchase orders in respect of goods
which formed the subject matter of the said invoices which are denied
by the defendant No.1. The fact of payment of said amount of
Rs.4,82,849/ through cheque No.761211 in respect of invoices at serial
Nos.6 to 14, 18 and 20 to 22 was informed to the plaintiff vide letter
dated 06.07.2017 and it was informed that the said payment was to be
treated as full and final payment against the dues of defendant No.1.
The said cheque and the payment voucher were annexed to the letter
dated 06.07.2017 i.e. Exh.69 which was sent through registered post on
13.07.2017 and was duly received by the plaintiff.
23. The DW1 admitted that, he supervises the accounts of
schools of trust and the trust to order the purchase of books is within
authority of head of the school. He is aware of every order of purchase
of books issued by the defendant No.1. He was asked to produce the
purchase orders issued by the school in favour of the plaintiff. He
deposed that, mostly the delivery of books was received by the
receptionist and the receptionist used to inform the concerned division
and the head of the school regarding the receipt of the books and
thereafter the head of the school used to inform him. He was unable to
identify the acknowledgment of receipt on Exh.24 to Exh.32 and was
-- 14 of 25 --
15 Judg. In Comm. Suit 2562019
also unable to identify the acknowledgment signatures at Exh.19 to
Exh.44. He categorically deposed that on the basis of the purchase
orders, delivery challans he was stating that the books in the disputed
invoices are not received by the defendant. He further deposed that, he
had delivery challan of the invoices in respect of the books which the
defendant had received but, later on was unable to file the said delivery
challans on record.
24. The DW1 further categorically deposed that the admin
assistant (of defendant No.1) used to take entry of the receipt book in
the delivery register but was unable to state the name of the admin
assistant who had received books in the year 2014. Thereafter, he
stated that the head of the school was having the custody of the delivery
register but, it was destroyed as they keep old records only for a period
of three years. When he deposed that before coming to Court for giving
evidence, he had verified the invoices with the school record, then he
was questioned which record he verified with the invoices and he
answered that he verified letter dated 06.07.2017 and the rest of the
record was destroyed. I would take a pause here to note that when the
plaintiff and the defendant No.1 were having dispute regarding the
delivery of the books then why the record pertaining to the said
deliveries was allegedly destroyed by the school authorities and only the
letter dated 06.07.2017 was preserved. After giving the above answer,
the DW1 stated that he wanted to correct his answer and again stated
that he has not verified any other record except letter dated
06.07.2017.
25. The DW1 also admitted that, any material including books
received to the school was used to be entered in the delivery register
maintained by the school but, the said register for the year 20142015
-- 15 of 25 --
16 Judg. In Comm. Suit 2562019
was not available therefore, he cannot produce it. He also deposed that,
the record pertaining to invoices and delivery challan have been
disposed off by the school as it was old record but, admitted that, if it
was an important record then it was preserved for more time.
26. The letter Exh.69 as shown to DW1 and he deposed that,
the said letter dated 06.07.2017 was posted by its peon and he had not
personally contacted the plaintiff in respect of confirmation of the
account after issuance of said letter. He categorically admitted that he
had authorized the entire process of issuance of letter dated
06.07.2017. The DW1 was shown Exh.46 i.e. notice dated 27.11.2018
and he admitted that the defendant school had received the said letter
from the plaintiff but it was not responded on their behalf. He was
questioned regarding the absence of reply by the defendant to Exh.46
and he answered that as there was no communication with the plaintiff
till November 2018 since the issuance of letter dated 06.07.2017 hence,
they presumed that the matter is closed and therefore, did not respond
to letter Exh.46.
27. The DW2 Primerose Misquitta deposed that, she started
working with the defendant No.1 as a teacher since 30.11.1993.
Between the year 2012 to 2016 she was head of the defendant No.1
school campus and since the year 2016 till date, she is the head of the
said School at Mumbai and hence, manages day today affairs of the said
School. The contents of her evidence affidavit Exh.52 are identical to
the evidence affidavit of DW1. During her crossexamination she
deposed that the admin assistant is the responsible person for keeping
track and account of order placed for purchase of books by the
defendant. Apurva Solanki was the admin assistant from the year 2013
to 2015 and on the basis of purchase orders, she was well aware with
-- 16 of 25 --
17 Judg. In Comm. Suit 2562019
the facts of the books purchase by the defendant School from the
plaintiff. She was shown documents from Exh.19 to 44 and she deposed
that on the basis of said documents she was unable to state who had
placed orders for purchase of books. She also did not identify the
acknowledgement signatures on the said invoices but, admitted that
there was a format of defendant for purchase orders but, she did not
possess the purchase order in respect of the said invoices. She deposed
that in support of her statement in Article 'A', there was no document
available in support of the said statement other than delivery challan,
delivery register, purchase orders. Further the DW2 categorically
admitted that, she had participated in preparation of letter Exh.69 and
on the basis of delivery challans, delivery register and purchase orders,
the details in the said letter were verified and mentioned but, later on in
the month of March 2018 said delivery challans, delivery registers and
purchase orders were destroyed. She also expressed her inability to
produce the inward outward register for the year 2013 to 2015 kept at
the main entrance of the defendant school.
28. The DW3 Rosalbah Gomez was crossexamined at Exh.78
and she admitted that she prepared accounts on the basis of purchase
orders, delivery challan and invoices approved by the defendant school
but, the said documents being four years old were destroyed by her.
The ‘Outstanding Statement’ mentioned in letter Exh.45 was also
destroyed as it was four years old. The DW4 Pravin Shivarkar was cross
examined at Exh.84 and he admitted that he had prepared the ledger
account of the defendant school and on the basis of the ledger account
he verified the bills.
29. That, from the above discussion it can be seen that, to
prove its claim against the defendants, the plaintiff has mainly relied
-- 17 of 25 --
18 Judg. In Comm. Suit 2562019
upon the invoices Exh.19 to Exh.43 which are for the period
09/04/2014 to 14/05/2015, the letter of acknowledgement dated
13/06/2017 at Exh.45 and its ledger account at Exh.49. The defendants
have admitted the issuance of letter Exh. 45 but, contented that, after
scrutiny of the plaintiff’s outstanding statement on the basis of purchase
orders, delivery challans and delivery register, they had issued letter
dated 06/07/2017 Exh.69 alongwith cheque no.761211 for an amount
of Rs.4,82,849/ and payment voucher, thereby informing the plaintiff
that, the said amount was to be treated as full and final payment
towards the outstanding dues of the plaintiff. It is further alleged that
the plaintiff accepted the said payment towards full and final settlement
hence did not reply to the letter Exh.69. The plaintiff has admitted the
receipt of the cheque and encashing it but has denied the receipt of
alleged letter Exh.69.
30. That, the defendants admittedly did not receive back any
acknowledgement after issuing the alleged letter therefore, to prove its
claim of issuing letter Exh.69 through registered post acknowledgement
due to the plaintiff, the defendants applied for issuance of witness
summons to Subpost Master, Vile Parle (West) who appeared and
produced documents Exh.76 collectively and Exh.77. The said
documents prove that a registered post was addressed to the plaintiff’s
address at Vile Parle, Mumbai and a presumption can be drawn under
the General Clauses Act that it was received by it.
31. The defendants have contended that an adverse inference
is to be drawn against the plaintiff for not replying to its letter Exh.69
and thereby holding that plaintiff accepted the said cheque amount as
full and final settlement of its dues. It is pertinent to note here that, the
defendants have admitted to have received notice dated 27/11/2018
-- 18 of 25 --
19 Judg. In Comm. Suit 2562019
Exh.46 from the plaintiff for payment of its balance dues of
Rs.10,20,927/ alongwith interest at the rate of 5% per annum thereon
from the respective dates of the alleged unpaid invoices but, did not
reply to the said notice as they presumed that the matter was settled
between them. Thus, a satisfactory reason for not replying the said
demand notice Exh.46 is not given by the defendants. That, all the
witnesses examined by the defendants categorically stated that, after
scrutiny of the delivery challans, delivery register and purchase orders,
the letter Exh.69 was issued by them along with the said cheque, but
when they were asked to produce the said delivery challans, delivery
registers and purchase orders, they claimed that the said record was
destroyed by the school as it was more than four years old. The DW2
admitted that at the time of preparing Exh.69 the said record of delivery
register, etc. was available but, destroyed later on. Thus, it is very
surprising on the part of defendants that, the record of placing purchase
orders with the plaintiff and receiving the books, etc. from it was
destroyed and only the letter Exh.69 was preserved by them despite of
receiving demand notice Exh.46.
32. The said record of purchase orders, delivery challans and
delivery registers would have been an important piece of evidence in
view of the contention of the defendants that, only the invoices at serial
no.6 to 14, 18 and 20 to 22 in the table contained in paragraph no.3 of
the plaint, were the only invoices which were presupposed by proper
trail of documents from purchase orders to delivery challans hence, the
said cheque along with letter Exh.69 was sent to the plaintiff as full and
final settlement of the dues against them. It is further pertinent to note
here that, the admin assistant of defendant School who was responsible
for keeping track and account of orders placed for purchase of books
was not examined. Therefore, an adverse inference is to be drawn here
-- 19 of 25 --
20 Judg. In Comm. Suit 2562019
not against the plaintiff for not responding to letter Exh.69 but, it is to
be drawn against the defendants for not bringing the best evidence
before the Court. It appears that, the defendants were having
knowledge that the said cheque amount was not towards full and final
settlement of plaintiff’s pending dues and the said payment was only an
installment as undertaken by them in their letter Exh.45 therefore, they
did not deny the demand of plaintiff in its letter Exh.46. Thus, the claim
of plaintiff is more probable than the defence of the defendants.
33. Consequently, in view of the above discussion, I answer
issues nos. 1 to 3 in the affirmative and hold that, the plaintiff has
proved that it had supplied various books and allied materials to the
defendants but, the defendants failed to make payment of the
outstanding principal dues of Rs.9,35,585/. The invoices Exh.19 to 43
contain a specific condition that, interest at the rate of 5% will be
charged for the bills remaining unpaid after 30 days therefore, the
plaintiff is entitled for an amount of Rs. 2,52,139/ on the outstanding
principal dues of Rs.9,35,585/ upto the date of filing of the suit. Hence,
plaintiff is entitled to recover an total amount of Rs.11,87,724/ from
the defendants.
AS TO ISSUE No. 4 :
34. This issue is whether the suit of plaintiff is filed within the
period of limitation. The defendants have contended that, the invoices
Exh.19 to Exh.43 are from the period 09/04/2014 to 14/05/2015
therefore, they the suit of plaintiff filed in the month of November 2019
is not within the period of limitation as envisaged in the Limitation Act,
1963. This contention of the defendants is raised in the backdrop of
plaintiff’s claim that, vide their letter Exh.45 dtd.13/06/2017, the
-- 20 of 25 --
21 Judg. In Comm. Suit 2562019
defendants had acknowledged their liability and promised to make the
payments in installments. Thereafter, defendants made a part payment
of Rs.4,82,849/ on 17/07/2017 out of the total outstanding amount of
Rs.14,18,434/ hence, the suit is filed within the period of limitation.
35. It is the contention of the defendant that, the plaintiff
cannot take advantage of Section 18 and 19 of the Limitation Act who
enlarged the period of limitation. The plaintiff's reliance on letter
Exh.45 dated 13.06.2017 alleging it to be acknowledgement of debt in
writing, is misplaced. If, the contents of said letter dated 13.06.2017 are
perused then they do not constitute defendant's alleged
acknowledgement of debt in writing. The defendants had specifically
stated in their letter Exh.45 that after scrutinizing the bills they will be
effecting the payment on installment. They scrutinized the bills of the
plaintiff and issued the said cheque of Rs.4,82,849/ towards full and
final settlement of the dues towards plaintiff. The said amount was not
paid to the plaintiff as installment but was paid as full and final
settlement of their dues.
36. That, as per the provision of Section 18 of the Limitation
Act, 1963, an acknowledgement of liability by the defendant in writing
and signed by him then a fresh period of limitation shall be computed
from the time when the said acknowledgement was so signed. That,
further as per the provision of Section 19, where payment on account of
a debt before the expiration of prescribed period by the person liable to
pay the debt is made then a fresh period of limitation shall be computed
from the time when the payment was made.
37. In the present matter, as discussed hereinabove, the
defendants had admittedly prepared their alleged letter Exh.69 on the
-- 21 of 25 --
22 Judg. In Comm. Suit 2562019
basis of purchase orders, delivery challans and delivery registers and
came to the conclusion that only the invoices at serial Nos.6 to 14, 18
and 20 to 22 mentioned in the table given in the paragraph No.3 of the
plaint, were presupposed by proper trail of documents and had
accepted only those invoices and denied the other 13 invoices raised by
the plaintiff. But, an adverse inference is already drawn hereinabove
against the defendants for not producing the best evidence i.e.
purchase orders, delivery challans and delivery registers and claiming
that they were destroyed by the school as it was more than four years
old record and also for not replying to the notice Exh.46 received on
dated 27.11.2018 from the plaintiff.
38. Therefore, the defendant's letter dated 13.06.2017 Exh.45
has to be construed as their acknowledgement of their debt and the
payment of Rs.4,82,849/ made by them through cheque after
06.07.2017 has to be construed as a part payment/installment of their
dues towards plaintiff. Therefore, the plaint lodged by the plaintiff on
16.11.2019 was filed well within the period of limitation as envisaged
in the Limitation Act, 1963.
39. The defendant had relied upon some case laws in support
of its defence of suit being barred by limitation. In the matter of Win
Cable and Datacom Pvt. Ltd. (Supra), the case of the plaintiff was that,
the defendant No.1 in the said matter, while placing orders for running
advertisements on the cable network of the plaintiff company, was
acting as an agent of defendant No.2 Company. The defendant No.2
had taken up preliminary objection that the claim was barred by Order
II Rule 2 of the Code of Civil Procedure, 1908, as the said suit amount
was not claimed by the plaintiff company in a previously instituted suit
which was pending in the District Court. Thus, the facts of the said
-- 22 of 25 --
23 Judg. In Comm. Suit 2562019
matter are totally different from the issue involved in the present suit.
Hence, in my humble opinion, its ratio is not applicable to the present
case.
40. In the matter of Chandradhar Goswami (Supra), the suit
was held to be within time in so far as the liability for sale under the
mortgage deed was concerned as it was filed within 12 years as the
execution of mortgage. As to the personal liability under the said deed,
the said suit was held to be filed beyond time as it was filed more than
six years after the execution of the mortgage. It was held that, the entry
of Rs.100/ in the accounts of the defendant Bank, will not help the
bank for bringing its suit within the period of limitation with the help of
Section 19 and Section 20 of the Limitation Act, 1963. The facts of the
present case are already discussed hereinabove and they are totally
different from the facts of the said matter before the Hon'ble Supreme
Court. Therefore, in my humble opinion the ratio of the said case is not
applicable to the present suit.
41. In the matter of Santlal Mahton (Supra), the facts were
that, the Trial Court had held that though the suit was instituted more
than six years after the date fixed for payment in the bond, yet the
claim for personal relief against the mortgagors did not become time
barred by the reason of the fact that there were several payments made
by the defendants towards satisfaction of the debt which attracted the
operation of Section 20 of the Limitation Act. The Hon'ble Apex Court
had held that, none of the payments were endorsed on the bond itself
and there was no acknowledgement either in the handwriting of, or
signed by, the debtors prior to the institution of the suit. In the present
matter, the defendants had issued letter Exh.45 on 13.06.2017 and had
informed the plaintiff that after scrutiny of plaintiff's bills, it will be
-- 23 of 25 --
24 Judg. In Comm. Suit 2562019
effecting payments in installments. The said letter Exh.45 is already
held by me, for the reasons stated hereinabove, that, it is a letter
acknowledging the debt of defendants in writing. Therefore, in my
humble opinion, as the facts of the present case are totally different
from the facts in the matter of Sant Lal (Supra) hence, its ratio is not
applicable to the present suit.
42. In the matter of Concrete Additives (Supra), the Hon'ble
Bombay High Court had held that, the issuance of tax invoice was held
to be an unilateral act on the part of the plaintiff and the arbitration
clause in the said invoices did not conclude any conscious agreement
between the parties under Section 7 of the Arbitration and Conciliation
Act, 1996. Again, in my humble opinion that facts of the said matter are
totally different from the issues involved in the present suit therefore,
its ratio is not helpful to the defendant. Hence, I hold that the suit of
plaintiff is filed within the period of limitation and hence, I answer issue
No.4 in the affirmative and proceed to pass the following order.
ORDER
1. Commercial Suit No.256 of 2019 is hereby decreed with
costs.
2. The defendant Nos.1 to 3 are directed to pay, jointly and
severally, to the plaintiff an amount of Rs.11,87,724/
[Rupees Eleven Lakhs Eighty Seven Thousand Seven
Hundred Twenty Four only] which includes balance
principal amount of Rs.9,35,585/ and interest of
Rs.2,52,139 @ 5 % p.a. till the date of filing of the suit.
They are further directed to pay interest @ 5 % p.a. on
the principal unpaid amount from the date of this order
-- 24 of 25 --
25 Judg. In Comm. Suit 2562019
till realization of the said amount in full.
3. Decree be drawn up accordingly.
( VISHAL SADASHIVRAO GAIKE )
JUDGE, CR NO.32
Date :17/02/2024. CITY CIVIL COURT, MAZGAON,
MUMBAI.
-- 25 of 25 --