IN THE COURT OF SH. NITISH KUMAR SHARMA CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI CS SCJ No. 611092/16 Date of Institution : 14.12.2015 Date of reservation of judgment : 30.09.2019 Date of pronouncement of Judgment : 01.10.2019 M/s [ENTITY] 1/7, West Patel Nagar New Delhi08. Plaintiff Vs. M/s [ENTITY] Defendant SUIT FOR RECOVERY Judgment 1.
Factual matrix of the present case as per plaint is that the plaintiff is a private limited company incorporated under the [ACT]. The name of the plaintiff company has been changed from "M/s Empire Home Appliances Limited" to "M/s [ENTITY]" and the same has been recorded by the Registrar of Companies in its Certificate of Incorporation dated 30.7.2014. It is stated that the plaintiff company is carrying on business of manufacturing, marketing and selling several electrical/electronic home appliances and has developed name and reputation in India. It is [PRECEDENT] further stated that the products manufactured by the plaintiff are widely demanded across India and in pursuance of its business, plaintiff regularly markets and sells its products through its distributors and on receipt of orders from distributors, plaintiff supplied the products and also gives about 21 days credit to such distributors and the plaintiff receives on account payments from such distributors and credits the same in a running account maintained by it with respect to such distributors.
2. It is further stated that the defendant approached the plaintiff for distributing its products I.e electrical home appliances and applied for the same and hence, plaintiff appointed defendant as its distributor for its intended area of operation on standard terms and conditions as agreed between the parties. Thereafter plaintiff had delivered the goods to defendant from time to time and raised invoices on the defendant which were duly received by it against such deliveries.
3. It is further stated that defendant duly received and accepted the said ordered goods in good condition after due verification and made part payments against such deliveries in a running account maintained by the plaintiff in ordinary course of business and the defendant was provided with the copies of statements of account which were never disputed by the defendant. It is further stated that defendant issued cheques towards on account payment of its outstanding to the plaintiff, as reflected in its running statement of accounts, however on many instances, the said cheques were dishonoured on presentation by the plaintiff, as such plaintiff was constrained to initiate proceedings U/[SECTION] and [SECTION] of [ACT] for dishonour of three cheques bearing no.
CS SCJ No. 611092/16 [PRECEDENT] 2/8 091567 dated 03.12.2012 for Rs. 50,000/; 091568 dated 06.12.2012 for Rs. 37,000/ and 091569, dated 04.12.2012 for Rs. 50,000/ . Despite that no payment has been made by defendant. Hence the plaintiff had issued legal notices dated 06.8.2015 and 24.08.2015 to defendant but of no avail. Hence this suit has been filed by the plaintiff.
4. By way of present suit, the plaintiff has prayed for the following reliefs :
a. Decree for a sum of Rs.2,00,898/payable as on 15.07.2015 in favour of plaintiff and against the defendant apart from interest @ 18 % p.a payable till the actual date of payment.
b. Costs of the suit. c. Relief. 5. Summons of the suit have been issued to defendant,
however same have been received back with the report refusal by Sh. [ENTITY], proprietor of defendant. As per [ACT], refusal is deemed to be proper service. However neither the defendant has appeared nor filed its W.S, hence Vide Order dated 08.09.2016 defendant is proceeded exparte.
6. In order to prove its case, plaintiff examined Sh.[ENTITY], AR of plaintiff and tendered in evidence his duly sworn in affidavit exhibited as Ex.PW1/A, reiterating the contents of the plaint. In his testimony, following documents were exhibited :
1. True copy of Certificate of Incorporation Ex. PW 1/1
2. Certified copy of Board Resolution Ex. PW 1/ 2
3. The distributors application form Ex. PW 1/ 3
4. Copies of invoices Ex. PW 1 /4 [PRECEDENT]
5. Copy of statement of account Ex. PW 1/ 5
6. Certificate U/[SECTION] of Indian Ex. PW 1/ 6 [ACT]
7. Certified copy of complaint U/[SECTION] 138 of [ACT]
8. Copy of Legal notices dated 06.8.15 Ex. PW 1/8 and 24.08.15. (colly)
7. Thereafter exparte PE was closed vide statement of AR recorded on 09.10.2017 and matter was fixed for exparte final arguments.
Arguments were duly adduced by the Ld. counsel for the plaintiff.
8. I have heard the arguments advanced by the Ld. counsel for plaintiff, at length and have perused the case file as well as the evidence on record carefully.
9. In order to prove its case plaintiff got examined AR of plaintiff as PW1. PW1 in his testimony has placed on record the true copy of certificate of incorporation Ex. PW 1/1 showing the change of name of plaintiff company from "M/s Empire Home Appliances Limited" to "M/s [ENTITY]".Further the Resolution Ex. PW 1/ 2 shows that Sh. [ENTITY] was authorized on behalf of plaintiff company as AR to depose on behalf of plaintiff company. The plaintiff has further placed on record the distributors application form Ex.PW 1/3 which shows that the plaintiff had appointed defendant as its distributor for its intended area of operation on standard terms and conditions as agreed between the parties. Further the bills as placed on [PRECEDENT] record Ex. PW 1/ 4 (colly) vide which the plaintiff had provided goods/appliances to defendant. The statement of account is Ex. PW 1/5 and shows the amount of Rs. 1,37,132/ is due against the defendant. The statement of account Ex. PW 1/5 is duly supported with the certificate U/[SECTION] of [ACT]. Ex. PW 1/7 shows that the abovesaid amount was undertaken to be paid by the defendant for which he had issued three cheques which got dishonoured and proceedings U/[SECTION] of [ACT] was initiated. It is further pertinent to note that legal notices dated 06.8.2015 and 24.08.2015, were served upon the defendant. It is apropos to state that it has been held by the Hon'ble Supreme Court in judgment titled as [PRECEDENT] that if a legal notice is given by a party, the same is not replied and contents not denied then, silence of the notice raises presumption against him. Another judgment of Hon'ble High Court titled as [PRECEDENT] is on the same aspect.
At this stage, it is also pertinent to mention [SECTION] of the [ACT] :
"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or "given" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the [PRECEDENT] letter would be delivered in the ordinary course of post."
The Hon'ble Apex Court in the case of [PRECEDENT] observed as under :
"The principle incorporated in [SECTION] of the [ACT] could profitably be imported in a case where the sender had dispatched the notice by post with the direct address written on it. Then it can be deemed to have been served on the addressee, unless he proves that it was not really served and he was not responsible for such nonservice."
These were the observations of the Hon'ble Supreme Court while dealing with a case relating to service of notice U/[SECTION] of [ACT].
10. Thus, on the basis of the above law as well as on Ex. PW 1/8, the factum of delivery of the said legal notice duly stands established but the fact that no reply pertaining to the same is placed on record by the defendant, raises a presumption against the defendant under [SECTION] of the [ACT] as it is a settled proposition of law that non denial or evasive denial amounts to an admission. The fact that the defendant duly received the legal notice is undisputed, implying that the averments made by the plaintiff in the legal notice duly stands admitted by the defendant.
11. At this stage an inference can be drawn on the basis of [SECTION] of the [ACT] which states that, "the court may presume the existence of any fact which it thinks likely to have [PRECEDENT] happened, regard being had to the common course of natural events, human conduct and/a private business, in their relation to the facts of the particular case." The Clause (f) appended to the section clearly states that, "common course of business has been followed in a particular case, implying that where a letter or legal notice as in the present case is sent to the defendant, it would have ordinarily been delivered in the common course of business to the party to whom it was addressed."
12. In the present case also on the basis of presumption under [SECTION] of the [ACT] it can be duly presumed that once the goods/services are delivered to the defendant, in the ordinary course of business the same must have been duly received/gained by the defendant.
13. Thus, on the basis of the conjoint and cumulative appraisal of evidence made as above, it can be stated that, the testimony of PW1 has remained unrebutted and unblemished as the defendant did not appear to contest the present suit.
14. Further, it is noteworthy to mention that in the first place the testimony of PW1 is on oath, and the same has gone unchallenged as despite service, defendants did not choose to contest the present suit. Therefore, the possibility of doubting the testimony of PW1 stands negated as his testimony remained unblemished. Also, by placing on record the statement of account Ex. PW 1/5 of the defendant maintained by plaintiff company, showing the due outstanding amount of the defendant, plaintiff has been able to prove its case on the scale of preponderance of probabilities.
[PRECEDENT]
15. In these circumstances, in the considered opinion of the court, by virtue of oral and documentary evidence on record, plaintiff has been able to prove its case for the recovery of sum of Rs.2,00,898/ which became due as on date of filing of suit. The plaintiff has claimed the interest @ 18 % p.a which seems to be exorbitant. Interest @ 10 % is fair and equitable.
16. Accordingly, the suit of plaintiff is hereby decreed for the sum of Rs. 2,00,898/ alongwith interest @ 10 % from the date of filing of suit till realization. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room, after due compliance.
[ENTITY] Date: 2019.10.01 SHARMA 16:54:55 +0530 Pronounced in the open court ([ENTITY]) today in the court i.e on 01.10.2019 Civil Judge(West)/Delhi CS SCJ No. 611092/16 [PRECEDENT] 8/8