IN THE COURT OF SH. SAURABH KULSHRESHTHA: CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI Civil Suit no:203/09 ID NO.02402C0013372009 Mr. [ENTITY] Sole Proprietor M/s. Vikram Distributors 3646-47, Netaji Subhash Marg, Darya Ganj, New Delhi-110 002 Plaintiff Versus 1. M/s. [ENTITY] through Partner Mr. [ENTITY] 2. Mr. [ENTITY] S/o Not known Partner M/s. [ENTITY] Both at: 35/1, Trilok Puri, Delhi - 110 091 Defendants SUIT FOR RECOVERY OF Rs.30,870/- ALONGWITH INTEREST OF AN AMOUNT OF Rs.19,757/- Date of institution of the Suit : 01.05.2009 Date on which judgment was reserved : 19.03.2012 Date of decision : 29.03.2012 Decision : Suit Decreed JUDGMENT
This is a suit for recovery of an amount of Rs. 30,870/- alongwith interest of an amount of Rs. 19,757/-. The plaintiff claims himself to be the sole proprietor of the firm Ms. Vikram Distributors and [CASE NUMBER] Page No: 1/14 is engaged in the business of trading in electric and electronics household goods. The defendant no. 1 is stated to be a partnership firm engaged in the same business and the defendant no. 2 is the partner of the defendant no. 1 firm.
2. It is the case of the plaintiff that the defendants had purchased electronics goods etc. from the plaintiff from time to time against various invoice/bills which were duly received and acknowledged by the defendants and the parties have an open, mutual and current account duly maintained by the parties in the normal course of business. The version of the plaintiff is that as per the statement of account an amount of Rs.30,870/- is due, outstanding and payable by the defendants as on 30.04.2009.
3. The plaintiff has further claimed that the defendants are also liable to pay an amount of Rs.19,757/- as interest @ 24% p.a. as on 30.04.2009. Legal notice dated 10.03.09 was issued by the plaintiff to the defendants, however the defendants neither replied the said legal notice nor paid the amount despite service of legal notice.
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4. The plaintiff has therefore prayed for decree of the principal amount of of Rs.30,870/- along with pre suit interest of an amount of Rs.19,757/-. The plaintiff has further claimed pendente lite and future interest @ 24% per annum.
5. The defendants appeared before the court pursuant to service of summons and filed their written statement. The defendants did not dispute the transactions between the plaintiff and the defendants. The defendants however denied that an amount of Rs.30,870/- is due outstanding and payable by the defendants to the plaintiff as on 30.04.2009. The defendants averred that they have made all payments from time to time against the purchase bills. The defendants also denied their liability to pay interest @ 24% p.a. The defendants admitted the receipt of legal notice. However, the defendants stated that reply dated 20.03.2009 was duly issued on behalf of the defendants. The defendants stated that they are not liable to pay the suit amount. The defendants prayed for dismissal of the suit.
6. The plaintiff filed replication to the written statement of the defendants and denied the averments of the written statement and [CASE NUMBER] simultaneously reiterated and reaffirmed the contents of the plaint.
7. Vide order dated 13.12.2010, following issues were framed in this case:
1. Whether plaintiff is entitled for recovery of Rs.50,627/- as prayed for? OPP
2. Whether plaintiff is entitled for interest? If so, at what rate? (OPP)
3. Relief
8. In order to prove his case the plaintiff examined himself as PW-1 and deposed on the lines of the plaint. On the other hand the defendants examined Sh. [ENTITY], partner of the defendant no. 1 firm as DW-1. DW-1 also deposed on the lines of the written statement. The defendants also examined Sh. [ENTITY], official from nanital Bank as DW-2 who proved the copy of the bank statement account of the defendant no. 1 firm as Ex. DW-2/1.
9. I have heard the Counsel for the plaintiff and have given due consideration to the contentions and carefully perused the record. My issue-wise findings are as follows:
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10. The question to be answered is as to whether the plaintiff is entitled to recover the principal outstanding amount.
11. PW-1 has deposed that the defendants had purchased electronics goods from the plaintiff through various bills and invoices - Invoice no. 972 dated 05.05.06 for Rs. 12,900/-, Invoice no. 1075 dated 14.08.06 for Rs.27200/- and Invoice no. 1084 dated 24.08.06 for Rs. 15000/- which are Ex. PW-1/C to Ex. PW-1/E. PW-1 further deposed that the plaintiff was maintaining a running account in respect of the goods purchased by the defendants from the plaintiff. The statements of account are Ex. PW-1/A and Ex. PW-1/B.
12. Thus the plaintiff has proved he had supplied electronic goods to the defendants vide three invoices dated 05.05.2006, 14.08.2006 and 24.08.2006. All these invoices have been duly acknowledged by the defendants. The seal of the defendant firm is also there on the invoices. Thus there can be no dispute that the electronics goods were supplied to defendant no.1 firm vide invoices Ex. PW-1/C to [CASE NUMBER] Page No: 5/14 Ex. PW-1/F. Counsel for the defendants also could not elicit anything substantial in the cross examination of PW-1 so as to discredit his testimony on this point. I have no reason to disbelieve the documents filed by the plaintiff.
13. As per the statement of account filed by the plaintiff an amount of Rs. 30,870/- is due outstanding and payable by the defendants. The defendants did not file any statement of account. It is not believable that the defendants who are doing business as a partnership firm were not maintaining any statement of account. In these circumstances, adverse inference ought to be drawn against the defendants on this count.
14. The defendants have contended that they have paid the entire amount by way of cheques and partly in cash. The defendants have only filed copy of folio of cheques (record slip of cheque book) which too has not been duly proved. The defendants also filed their statement of bank account.
15. The goods in question were supplied by the proprietorship [CASE NUMBER] Page No: 6/14 firm of the plaintiff namely Vikram Distributors. This is clear from the invoices Ex. PW-1/C to Ex. PW-1/E. Even the statement of account proved by the plaintiff is that of M/s Vikram Distributors only. The defendants have not been able to establish payments in favour of M/s Vikram Distributors either in cash or by way of cheques so as to completely clear off the liability under the aforesaid invoices. No cash receipts or payment by cheques has been proved.
16. The defendants have contended that they have issued cheques in the name of M/s Vikram Electronics towards payment of the goods supplied to M/s Vikram Distributors. They proved the statement of bank account as Ex. DW 2/1 and certificate from bank Ex. DW 1/8 in this respect. However, the material on record clearly reveals that M/s Vikram Electronics is a separate firm. PW-1 has stated in his testimony that M/s Vikram Electronics is a partnership firm wherein he is a partner having only 50% share.
17. The defendants were also clearly aware of the fact that they were dealing with two firms namely M/s Vikram Electronics and M/s Vikram Distributors. This is clear from the statement of bank [CASE NUMBER] Page No: 7/14 account Ex. DW2/1 and the copy of the record slip of the cheque book of the defendants. From these documents it is clear that cheques have been issued by the defendants separately in the name of both M/s Vikram Electronics and Ms. Vikram Distributors.
18. Since M/s Vikram Electronics was a separate entity being a partnership firm the transactions with the firm M/s Vikram Electronics were required to be dealt with separately. Neither party has proved any transactions, invoices or statement of account in respect of the transactions between the defendants and the firm M/s Vikram Electronics. Thus the payments made by the defendants in favour of M/s Vikram Electronics cannot be taken into account.
19. The defendants have therefore failed to establish that all the amount against the invoices had been paid byt he defendants or that no amount is due or that the statement of account filed by the plaintiff is not correct.
20. Further it is well settled that the standard of proof in civil cases and criminal cases is different. In civil proceedings, a mere [CASE NUMBER] Page No: 8/14 preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponderance of probabilities. As per [SECTION] of the [ACT], a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and decide whether the preponderance is in favour of the fact asserted by the plaintiff. Thus if the evidence of the plaintiff outweighs that of the defendant and persuades the court to believe the same to be more probable and true than that of the defendant then it can be held that the plaintiff has proved his case by preponderance of probability. Reference may be made to the judgments titled as [PRECEDENT] and [PRECEDENT].
21. Further the Hon'ble Supreme Court in the judgment titled [CASE NUMBER] Page No: 9/14 as "[PRECEDENT]" reported as [PRECEDENT] held:
" Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assur- ance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus the plaintiff's burden of proof can safely be deemed to have been discharged "
22. Considering these facts and circumstances, I am of the considered opinion that that the plaintiff has been able to satisfactorily establish by preponderance of probabilities that he had supplied electronics goods to the defendants vide invoices Ex. PW-1/C to Ex. PW 1/E and he has been maintaining a running account in respect of the transactions with the defendants vide statements of account Ex. PW-1/A and Ex. PW1/B which are correct. The plaintiff has further satisfactorily established that the defendants are liable to pay an amount of Rs. 30,870/- towards price of goods supplied by the plaintiff. Since the defendant no. 1 is a partnership firm and the defendant no. 2 is a partner [CASE NUMBER] Page No: 10/14 of the defendant no. 1 firm both the defendants are liable to make the payment of the outstanding amount.
23. This issue is therefore decided in favour of the plaintiff and against the defendants.
24. The next question to be answered is as to whether the plaintiff is entitled to interest.
25. I have already held that plaintiff is entitled to recover the principal amount of Rs. 30,870/- from the defendants towards supply of goods vide invoices Ex. PW-1/C to Ex. PW-1/E.
26. However, there is no stipulation in the invoices regarding payment of any interest. It is further seen that certain part payments have also been made by the defendants. It has not been expressly stated by the plaintiff that against which particular invoice part payments were made or appropriated.
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27. Considering these facts and circumstances, the plaintiff has not been able to prove any agreement regarding payment of interest from a particular date nor any such interest can be calculated from the date of the invoices because part payments have been made and the plaintiff has not indicated against which invoices these part payments have been made/ appropriated and the plaintiff has been maintaining a running account in respect of the transactions with the defendants.
28. However, the plaintiff vide legal notice dated 10.03.2009 which is Ex. PW-1/F demanded interest @ 24% per annum on the outstanding bill amount of Rs. 30,870/-. The defendants did not pay the amount despite service of legal notice.
29. Considering these facts and circumstances I am of the considered opinion that the plaintiff can be awarded pre suit interest not exceeding the current rate of interest in terms of [SECTION] of the [ACT] on the outstanding bill amount from the date of the notice till the date of institution of the suit.
30. The ends of justice would therefore be met in case the [CASE NUMBER] plaintiff is awarded pre suit interest @ 9% p.a. on the outstanding amount of Rs.30,870/- from the date of legal notice i.e. 10.03.2009 till the date of institution of the suit. The ends of justice would further be met if pendente lite and future interest @ 9% p.a. is awarded in favour of the plaintiff.
31. This issue is therefore decided in favour of the plaintiff and against the defendants.
RELIEF
32. In these facts and circumstances the plaintiff shall be entitled for the principal outstanding amount of Rs.30,870/- alongwith pre suit interest @ 9% p.a. on the outstanding amount of Rs.30,870/- from the date of legal notice i.e. 10.03.2009 till the date of institution of the suit. The outstanding amount of Rs.30,870/- along with the amount of pre suit interest shall form the principal/ decretal sum adjudged. The plaintiff shall also be entitled to pendente lite and future interest @ 9% p.a. on the principal/ decretal sum adjudged from the date of institution of the suit till the date of realization.
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33. The suit of the plaintiff is decreed in aforesaid terms against the defendants. The plaintiff shall also be entitled to costs of the suit from the defendants. Decree Sheet be accordingly prepared. File be consigned to Record Room thereafter.
Announced in the open (SAURABH KULSHRESHTHA) Court on 29.03.2012 CCJ/ARC(East) (Judgment contains 14 pages.) KARKARDOOMA COURTS, DELHI [CASE NUMBER] Page No: 14/14