Rajesh Goel vs Jasbir Singh

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(COMM) 1349/2016
      RAJESH GOEL                                                 ..... Plaintiff
                    Through:           Mr. Aditya Sharma, Adv.
                                Versus
      JASBIR SINGH                                           ..... Defendant
                         Through:      Mr. Rohit Nagpal, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                  ORDER

% 16.05.2017 IA No.5105/2017 (of plaintiff u/O VIII R-10 CPC)

1. The plaintiff, in this commercial suit for recovery of Rs.1,68,52,650/- on account of price of goods (rice) supplied, seeks a decree forthwith on the defendant not filing written statement within the time of 120 days. Reliance is placed on OKU Tech Private Limited Vs. Sangeet Agarwal MANU/DE/2036/2016.

2. This application came up before this Court first on 28 th April, 2017 when none appeared for the defendant inspite of advance notice shown to have been given by way of registered post AD receipt dated 20th April, 2017.

3. Though there was no need for issuance of notice but notice was ordered to be issued returnable before the Joint Registrar (JR) on 12th May, 2017, the date already fixed and the application was posted before this Bench for today.

4. The office noting under the order dated 28th April, 2017 is to the effect that the notice of the application was served on the defendant through counsel on 3rd May, 2017.

5. However on 12th May, 2017 the counsel for the defendant took a stand that copy of the application had not been supplied to him. The copy of the application, as per order dated 12th May, 2017, was supplied "again" on 12th May, 2017 and opportunity given to the defendant to file reply and the matter posted for today.

6. No reply has been filed to the application.

7. The office noting under the order dated 27th September, 2016 vide which the suit was admitted and summons ordered to be issued for 6 th December, 2016, is to the effect that the defendant was served through ordinary process on 19th November, 2016 and was also served by speed post. A perusal of the service by speed post shows the defendant to have been served by speed post on 10th November, 2016.

8. I may at this stage notice that though the view earlier prevailing was that when service by multiple modes is effected, it is the date of last service from which the time is to be counted but the Division Bench of this Court in Ashok Kumar Vs. Purshottam Lal Verma 2016 SCC OnLine Del 5358 has held that it is from the date of the first service that the time is to be counted.

9. The defendant appeared before the Joint Registrar on 6th December, 2016 and the counsel for the defendant stated that he will be filing his Vakalatnama during the course of the day and further stated that six pages had not been supplied to him. The JR, recording the undertaking of the counsel for the plaintiff to supply the said six pages within two days, directed written statement to be filed within four weeks thereafter with copy to the plaintiff and adjourned the suit to 21st February, 2017.

10. The plaintiff, in this application supported by affidavit, has stated that the said six pages were supplied on 6th December, 2016 itself to Mr. Siddhant Sharma, Advocate who had appeared for the defendant on that date.

11. No written statement was however filed by the defendant.

12. On 21st February, 2017, the Advocate for the defendant stated before the JR that the defendant had not received the paper book. Recording that the said plea was unreasonable in view of the earlier order dated 6 th December, 2016, the JR again adjourned the matter to 12th May, 2017 with a direction to the defendant to file his written statement within the stipulated period along with an application for condonation of delay.

13. Still no written statement was filed by the defendant and the plaintiff filed this application.

14. The time of 120 days from 10th November, 2016 for filing written statement expired on 10th March, 2017.

15. Admittedly no written statement was filed till then.

16. The counsel for the defendant though has not filed any reply to this application despite opportunity, firstly contends that the notice of the application was not served on the defendant in pursuance to the order dated 28th April, 2017.

17. The said contention of the counsel for the defendant is false as aforesaid. The office noting under the order dated 28th April, 2017 is of the defendant having been served through counsel with the notice of the application on 3rd May, 2017.

18. Though admittedly a copy of the application was again supplied to the counsel for the defendant on 12th May, 2017 and opportunity again given to the defendant to file reply to this application before today, but still no reply has been filed.

19. The counsel for the defendant only states that there was hardly any time after 12th May, 2017 to file reply.

20. Once the defendant is already in default, he cannot make such arguments. Four days were enough to prepare reply; the same could have been filed with permission of Court, as is routinely done.

21. The counsel for the defendant has orally stated that written statement has been filed on 22nd March, 2017. It is further contended that the missing six pages were supplied to the counsel for the defendant only on 21 st February, 2017 and the written statement filed on 22nd March, 2017 is within thirty days.

22. The counsel for the defendant on being asked to show as to how missing pages were supplied on 21st February, 2017 has nothing to show but merely states that it was supplied after the hearing on 21st February, 2017.

23. However the counsel who is appearing today admits that he did not appear on 21st February, 2017 and some other counsel had appeared.

24. Written statement stated to have been filed, as per office note dated 22nd March, 2017, was not in order and ordered to be returned with objections. The counsel for the defendant first feigned ignorance of the written statement being not on record. Thereafter he now states that it was returned because it was without any application for condonation of delay.

25. The counsel, inspite of the knowledge that the written statement filed without application for condonation of delay, did not remove objections and did not take steps to have written statement placed on record.

26. The counsel for the defendant now states that written statement be permitted to be taken on record on terms.

27. This is a commercial suit and as per the dicta aforesaid of the coordinate bench, no time can be given after 120 days.

28. The counsel for the defendant, at this stage, states that "he was under the impression that the written statement is within time".

29. "Impressions" of the counsel, which have no basis in facts or in law, cannot save the day and the defendant has to suffer therefor.

30. I have examined the plaint and the documents filed therewith to verify, whether the suit qualifies for a decree forthwith or the plaintiff is to be relegated to lead evidence.

31. The principal amount of Rs.1,61,26,938/- claimed by the plaintiff in the suit is for the value of 15 invoices of between 2 nd April, 2016 and 21st May, 2016 towards price of sale and supply of rice. The balance amount claimed is towards interest thereon @ 18% per annum till date of institution. The plaintiff has filed before this Court photocopies of the invoices, the transporter‟s receipt and delivery receipts bearing the stamp of the defendant.

32. I have enquired from the counsel for the plaintiff, whether there is any Value Added Tax (VAT) document of sale and delivery.

33. The counsel for the plaintiff states that the supply was within the city of Delhi and thus there was no need for any VAT document.

34. The counsel for the defendant, with reference to the invoices and transporter‟s receipts filed, states that the transporter‟s receipts are of supply from Karnal, Haryana to the defendant at Delhi.

35. It is the averment of the plaintiff in the plaint that the plaintiff, though at Karnal, has a godown in Delhi at Narela and the deliveries were made from the godown at Delhi to the defendant.

36. The invoices also of the plaintiff are at the address of Narela Mandi, of delivery to the defendant at Delhi. The transporters receipts are of consignment by the plaintiff to its office at Delhi with delivery at the address of the defendant.

37. The defendant having forfeited the right to file written statement, I have weighed whether relegating the plaintiff to lead evidence qua which the defendant would not have a right to cross-examine on its defence, will serve any purpose.

38. In the face of plaint, averments wherein, besides being verified are also supported by affidavit and the documents duly supported with statement of truth, I am of the view that the position would not be any better by relegating the plaintiff to evidence.

39. The plaintiff along with its documents has also filed copy of legal notice dated 6th June, 2016 sent by Jaspreet S. Rai, Advocate on behalf of defendant to the plaintiff admitting receipt of rice from the plaintiff, non- payment of price thereof, export thereof by the defendant and claiming damages from the plaintiff for poor quality thereof.

40. The application is thus allowed, the right of the defendant to file written statement to the suit is forfeited and the plaintiff is entitled to judgment forthwith.

CS(COMM) 1349/2016

41. In terms of the discussion aforesaid, the plaintiff has become entitled to a decree forthwith under Order VIII Rule 10 of CPC. The plaintiff, besides the principal amount of Rs.1,61,26,938/-, has claimed interest @ 18% per annum from 31st May, 2016 till the institution of the suit.

42. I am of the view that considering the prevalent rate of interest, the plaintiff should be awarded interest @ 10% per annum with effect from 31 st May, 2016 till three months herefrom. If the decretal amount is not paid, the plaintiff shall be entitled to interest for the period thereafter @ 12% per annum.

43. Accordingly, a decree is passed in favour of the plaintiff and against the defendant (i) of recovery of Rs.1,61,26,938/- with interest @ 10% per annum on the amount of Rs.1,61,26,938/- from 31st May, 2016 till three months hereafter and @ 12% per annum for the period thereafter.

44. The plaintiff shall also be entitled to costs of the suit.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

MAY 16, 2017 „bs‟..