B.C. Enterprises vs Great India Trading Co. And Ors.
2005 Latest Caselaw 1044 Del

JUDGMENT

Anil Kumar, J.

1. This judgment will dispose of the suit of the plaintiff, a partnership firm, filed against the defendant No. 1, a partnership firm and its partners, defendants No. 2 to 4, for recovery of balance price of goods sold and delivered to the defendants amounting to Rs. 39,48,176.79 (Rupees thirty nine lakhs forty eight thousand one hundred and seventy six and seventy nine paisas only.

2. The relevant facts are that the plaintiff has filed this suit for recovery of Rs. 39,48,176.79/- contending that it is a partnership firm and Shri K.M. Aggarwal, is conversant with the facts of the case and he is one of its registered partner who has signed, verified the plaint and filed the suit on behalf of plaintiff firm.

3. The plaintiff sued the defendants contending that defendant No. 1 is a partnership firm and its partners are defendant Nos.2 to 4 and a minor son of defendant No. 2, Shyam Sunder Sharma, who is admitted to the profits of the firm through his father and natural guardian.

4. The plaintiff had been supplying food grains to the defendant No.1 from time to time on credit basis. The parties maintained accounts of the dealing in their respective accounts books. The defendant No. 1 used to debit the account for the price of goods received by him and used to credit the account for the amount paid for the price of goods by defendant No. 1 to the plaintiff. The plaintiff in its account books, in the account of defendant No. 1 also used to make entries according to transactions.

5. The plaintiff specifically averred that the goods sold and delivered were according to specifications and the orders placed by defendants and no complaints were received from the defendants.

6. It was pleaded by the plaintiff that at the end of March 1998, accounts were settled between the parties and defendants confirmed their liability of Rs. 39,48,176.79/- in writing and promised to pay the same shortly along with interest at the rate of 24% per annum. Despite the assurances of the defendants to pay the amount due from them to plaintiff, no amount was paid necessitating sending a notice of demand by plaintiff to the defendants. Notice dated 24.03.1999 was sent to the defendants which was served. Since the amount which was acknowledged was not paid by defendants despite a notice of demand by the plaintiff, present suit for recovery of Rs. 39,48,176.79/- along with interest was filed by the plaintiff under Order 37 of Code of Civil Procedure

7. Summons under Order 37 (Rule 2 of Code of Civil Procedure) were served on the defendants and thereafter summons for judgments were served. On 16.04.2002 summons for judgment were accepted on behalf of the defendant Nos.1 and 2 by their counsel Shri S.K. Wadhwa and they were given time to file leave to defend application within the time stipulated under law. After hearing the application for leave to defend by order dated 11.05.2004, the defendants were granted unconditional leave to defend the suit However, the defendants failed to appear and file a written statement and consequently they were proceeded ex parte on 30.07.2004

8. After the defendants were proceeded ex parte, the plaintiff was directed to file evidence on affidavit and consequently affidavit of Shri K.M. Aggarwa, partner of the plaintiff was filed.

9. The plaintiff's partner has deposed that plaintiff is a registered firm and he has proved Form 'A' and Form 'B' of the Registrar of Firms as Ex. PW-1/1. Thus the plaintiff is a duly registered firm and can maintain suit for recovery. From the details given in Form `it is apparent that Shri K.M. Aggarwal is a registered partner of the firm.

10. The partner of plaintiff has also deposed that defendant No.1 is a partnership firm of defendant Nos.2 to 4 and a minor son of defendant No.2, Shri Shyam Sunder Sharma, who is admitted to the profits of the partnership through defendant No.2, Shri Rajinder Kumar Sharma, his father and natural guardian. The partner of plaintiff, Shri K.M. Aggarwal, has proved the statement of account of defendant No.1 in the books of plaintiff for the period ending on 31.03.1998 by deposing that the plaintiff's firm is maintaining its current account books and the entries are made in the books of account according to the transactions between the parties. The plaintiff's firm is supplying goods to the defendant No.1 and the price of goods sold and delivered to the defendant No. 1 is credited in their account and the amount, if any, received from defendant No.1 is debited in the account of defendant No.1 in the accounts books of plaintiff. The relevant account books for the period ending on 31.03.1998 were proved by plaintiff as Ex.PW-1/2. The plaintiff's partner, Shri K.M. Aggarwal, has proved the correctness of the books and entries and has identified the signatures on the books of accounts.

11. The partner of the plaintiff's firm, Shri K.M. Aggarwal, has further deposed that the accounts were reconciled and writing dated 31.03.1998 was given by the defendants admitting the liability by defendant No.1 to pay Rs. 39,48,176.79 to the plaintiff.

The signatures on the said writing have been identified and proved by the said partner of the plaintiff's firm at Points A, B and C in Ex. PW-1/3. The plaintiff has duly proved the notice dated 24th March, 1999, sent through its advocate calling upon the defendants to pay a sum of Rs. 39,48,176.79 with interest. A copy of notice has been proved as Ex.PW-1/4 and postal receipts of the said registered articles were proved as Ex.PW-1/5 and certificate of posting was proved as Ex.PW-1/6 and Acknowledgment Due cards have been proved as Ex.PW-1/7 to PW-1/11.

12. The plaintiff has also proved the reply received to their notice thus acknowledging receipt of notice. The plaintiff has denied the allegations made in the reply on behalf of defendant No.1. The plaintiff has also produced and proved two documents as Ex.PW-1/13 and PW-1/14 alleged to be the debit notes which were received by the plaintiff in the envelop which has been proved as Ex.PW-1/15. The plaintiff has emphasized that the alleged debit notes sent by the defendant No.1 which were marked as Ex.W-1/13 and PW-1/14 were not relied on and mentioned by the defendants in their reply to notice which is Ex.PW-1/12. The plaintiff contend that the debit notes have been fabricated by the defendants.

13. The plaintiff has also proved another letter dated 13.04.1999 sent to defendants denying that plaintiff had issued the said two debit notes. The letter dated 13.04.1999 was sent by registered post and under postal certificate. Letter dated 13.04.1999 was not received back. Plaintiffs contention is that it is deemed to have been served as postal charges were paid and the address of defendant is correct and a presumption arise in his favor which is not rebutted by the defendant. Copy of letter dated 13.04.1999 has been proved as Ex.PW-1/16 and its postal receipt has been proved as Ex.PW-1/17.

14. The defendants have not proved any of the facts nor has refuted the facts proved by the plaintiff. The debit notes sent by them to the plaintiff along with reply to notice thus can not be relied on nor the claim of the plaintiff can be declined or reeduced on account of these debit notes.

15. The pleas raised by the plaintiff has been duly proved and substantiated and the inevitable inference in the facts and circumstances is that the defendants are jointly and severally liable to pay a sum of Rs. 39,48,176.79 to the plaintiff with interest

16. The plaintiff has also deposed about his entitlement for interest at the rate of 24% per annum. However, in the affidavit, it was deposed that as per practice prevailing in the market in commercial transaction, the rate of interest is 24% per annum in such similar transaction. Plaintiff, however, has not produced any evidence to show that market rate of interest was 24% except his bald statement. No document has been produced and proved to show that rate of interest was agreed between the plaintiff and defendants to be 24%. Nevertheless, it can not be denied that the amount is due from the defendants to the plaintiff on account of commercial transaction between them. Therefore, considering the facts and circumstances, I consider it appropriate to grant to the plaintiff simple interest at the rate of 9% per annum from the date of institution of suit till realization of amount.

17. The amount claimed in the suit is Rs. 39,48,176.79 which was the balance due from the defendants to plaintiff on 31.3.1998. The suit was instituted on 19th July, 2000. No interest has been claimed on the amount of Rs. 39,48,176.79 from 1st April,1998 up to the date of institution of suit. Therefore, no interest is awarded to the plaintiff from 1st April,1998 up to the date of institution of suit.

18. I, therefore, decree the suit for a recovery of Rs. 39,48,176.79 in favor of plaintiff and against the defendants jointly and severely with simple interest @ 9% per annum from the date of institution of suit till recovery of amount. Plaintiff is also entitled for costs of the suit.

19. In the circumstances, a decree for recovery of Rs. 39,48,176.79 with pendente lite and future interest from the date of institution of the suit till the recovery of the amount at simple interest of 9% per annum is passed in favor of plaintiff and against the defendants. Cost of the suit is also awarded to the plaintiff and against the defendants. Decree sheet be prepared accordingly.