* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:10.11.2016
% Decided on: 21.12.2016
+ CS(COMM) 657/2016
M/S MAHAVIR TRANSMISSION UDYOG PVT. LTD ..... Plaintiff
Through: Mr. Vaibhav Jain, Advocate.
versus
M/S REAL POWER UTILITY & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
1. The present suit has been filed for recovery of sum of ` 2,35,08,765/- (Rupees Two Crore Thirty Five Lacs Eight Thousand Seven Hundred and Sixty Five Only) along with the interest. It is submitted that plaintiff is a company registered under the Companies Act, 1956 having its registered office in Delhi and is involved in the manufacturing of ACSR conductors for the past more than 10 years and is enjoying a good reputation in the market for manufacture of ACSR conductors.
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2. Sh. Akshat Jain is the Director of the Plaintiff Company and is fully conversant with the facts of the present case and is a duly authorized person of the company to represent the company before this court in this suit.
3. It is submitted that in the March-April 2014, the Defendant Firm through its Proprietor Mr. Ravinder Garg (Defendant no. 2) and his brother Mr. Gopal Garg (Defendant no. 3), approached the plaintiff for the purchase of ACSR Conductor 80 mm2 (Racoon) and placed the order vide Purchase Order no. Mahavir/PO/2014/01 dated 01.04.2014 (hereinafter referred to Purchase Order No. 1) and executed an agreement dated 26.04.2014 (hereinafter called "Agreement no. 1"), thereby finalizing the terms and conditions. The plaintiff company manufactured the said conductors as per the purchase order no. 1 and the inspection of the manufactured goods were carried out by surveyor from M/s Tata Projects Limited on behalf of the defendant firm and thereafter the material was supplied to the defendants as per demands and accordingly invoices were raised to the defendant firm. Another agreement dated 27.08.2014 (hereinafter referred to as "Agreement 2") was executed by the defendants with the plaintiff for supply of ACSR Conductors 50 mm2 (Rabbit). In both the agreements, the following were the terms and conditions:-
CS (COMM) 657/2016 Page 2 i. The Defendant Firm shall make payments to the Plaintiff Company within 30 days from the. date of each bill raised by the Plaintiff Company.
ii. That in case the Defendant Firm is not able to make payments to the Plaintiff Company within the due date of each bill, then, the Defendant Firm shall pay interest to the Plaintiff Company @ 24 % p.a. compounded monthly.
iii. That in case of any default in payment by the Defendant Firm, the proprietor of the Defendant Firm i.e. Mr.Ravinder Garg and Mr. Gopal Garg shall be personally liable to make payments along with due interest to the Plaintiff Company.
iv. That in case the Defendant Firm is not able to make payments to the Plaintiff Company within the 30 days from the date each bill, the Plaintiff Company shall have the right to approach the courts for recovery of their due amount along with interest. V. That in case recovery proceeding are initiated by the Plaintiff Company against the Defendant Firm, then, the Plaintiff Company shall be entitled to seek a stay order in the release of the utilization of funds that the Defendant Firm has received and/or will receive in future from UFIBVN (Panchkula), DHBVN (Hissar) or any other source. It was further agreed that the Defendant Firm shall not have any objection to the same.
4. Plaintiff manufactured the ACSR Conductor 50 mm2 (Rabbit) as per the agreement no. 2 and thereafter the inspection was conducted by the representatives of DHBVN on behalf of the defendant firm and the material was supplied to the defendant firm and the invoices were raised as per the supplies. The total principle amount of ` 2,35,08,765/- in respect of agreement no. 1 and agreement no. 2 is due which defendants have failed to pay despite various communications to them. It is submitted that the cause CS (COMM) 657/2016 Page 3 of action had arisen in Delhi as both the agreements were executed in Delhi and parties also agreed to the jurisdiction of Delhi in the said agreements. It was submitted that requisite court fees had been paid. It is prayed that a decree for an amount of ` 2,35,08,765/- along with interest at the rate of 24% compounded per month from the date the money becomes payable till the realization of the decretal amount be passed along with cost.
5. The defendants filed their written statements. Defendant no. 1 and Defendant no. 2 in their written statements have not disputed the agreement no. 1 and agreement no. 2 and the supply of the goods by the plaintiff to them. The plea however is that the goods supplied by the plaintiff were of sub-standard qualities and because of that reason they could not receive any payment from UHBVN and DHBVN to whom they had supplied the said material. It is submitted that since the plaintiff had committed breach of the contract, they are not entitled to any relief and the plaint is liable to be rejected.
6. Defendant no. 3 has submitted that this Court has no territorial jurisdiction as no part of cause of action has arisen in New Delhi. The material was manufactured and supplied from Dehradun. The inspection and purchase was done in Dehradun, Uttrakhand and that the defendant CS (COMM) 657/2016 Page 4 resides at Hisar, Haryana. It is further submitted that the plaintiff is guilty of breach of terms of agreements since the material supplied by the plaintiff do not meet the technical specifications required by UHBVN and DHBVN. As a result, they have not received any payment from UHBVN and DHBVN. It is submitted that the plaint is liable to be rejected.
7. The plaintiff filed the replication to the written statements wherein the plaintiff had controverted the contentions of the defendants that the goods supplied were defective. It is submitted that the goods were manufactured and delivered as per the agreed terms and conditions of agreement 1 and agreement 2 and that they were not bound by the terms and conditions agreed between UHBVN/ DHBVN and defendants.
8. The matter was fixed for the admission/denial of the documents. While the plaintiff had completed their admission/denial of the documents of the defendants, the defendants stopped attending the proceedings and their right to admission/denial of the documents was closed on 30.08.2016, the date on which they had not appeared before the Joint Registrar. The matter was placed before this court and subsequently on 08.09.2016, the defendants were proceeded ex-parte. The court ordered for the recording of ex-parte evidence and subsequently plaintiff had examined one witness Sh.
CS (COMM) 657/2016 Page 5 Akshat Jain as PW-1 by way of affidavit PW 1/A and also exhibited the documents.
9. I have heard the arguments and perused the relevant record.
10. The plaintiff's witness PW-1 has duly proved on record the board resolution authorizing Mr. Akshat Jain to represent the company. Therefore, the plaint has been filed by authorized person on behalf of the plaintiff.
11. The admitted facts of the case are that the plaintiff and the defendants had entered into two agreements i.e. agreement 1 and agreement 2 dated 26.04.2016 and 27.08.2014 for supply of Racoon ACSR Conductor 80 mm2 and Rabbit 50 mm2 ACSR .
12. The purchase order dated 01.04.2014 is proved as PW 1 /2 and the agreement no. 1 dated 26.04.2014 is proved as PW 1/3. The agreement no.2 dated 27.08.2014 is proved on record as PW 1 / 5. The plaintiff has also proved on record the terms and conditions of the agreements. The plaintiff has also proved that the goods before supply were duly inspected by the defendant firm. The copy of inspection reports are proved as PW 1 /4 and PW-1/6. It is not in dispute that the said material was supplied by the plaintiff to the defendants.
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13. The plaintiff has also proved on record the invoices raised by it as Ex. PW 1/7. The updated ledger account of the defendant firm in the books of plaintiff's company is proved as Ex. PW 1/8. Plaintiff has also proved on record that he had received a notice dated 20.07.2015, whereby the UHBVN had directed him to be present at the Divisional store UHBVN on 23.07.2015 as the goods manufactured by them and supplied by the defendants were of sub-standard quality. Copy of this notice was filed by defendant and admitted by plaintiff during admission/denial as same was exhibited Ex.D-1. Although, the defendants were also called upon but they did not appear before UHBVN. The plaintiff appeared and did the preliminary verification of the goods lying in the store and noted that those goods were not manufactured by the plaintiff company nor supplied by it to the defendant company and found that the goods were tampered with. Although, the markings found on those drums were in accordance with the packing list of the inspection report QS-WD12UHB254 dated 04.05.2015 but it had been obtained using fraudulent means by Marking contractor of Real Power Utility, with the intention of causing loss to UHBVN. Although the defendants have raised the objections that goods supplied by the plaintiff were of sub-standard quality and that is why the goods were CS (COMM) 657/2016 Page 7 rejected by UHBVN but the plaintiff has proved on record that before the dispatch of supply of goods to defendants, goods were duly inspected by representative of defendants. While the plaintiff has proved all his contentions, the defendants have not produced any evidence to prove its contention that the goods supplied by the plaintiff were defective. Plaintiff has also duly proved that goods lying in store of UHBVN were not the same goods which were supplied by them to the defendants. It is noteworthy that the defendants did not even appear before UHBVN when called upon.
14. The plaintiff has duly proved its case. The plaintiff is therefore entitled to a sum of ` 2,35,08,765/- along with simple interest at the rate of 12% per annum from the date of filing of the suit till the realization of decretal amount.
No orders as to cost.
Decree sheet be prepared.
DEEPA SHARMA
(JUDGE)
DECEMBER 21, 2016/sapna
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