Him Pulverising Mills Ltd. vs M/S. Mahalaxmi Enterprises
2008 Latest Caselaw 1074 Del

                                        UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(OS) 310/2006

                                      DATE OF RESERVE:       April 25, 2008

                                      DATE OF DECISION:      July 21, 2008

      HIM PULVERISING MILLS LTD.                 ..... Plaintiff
                      Through: Mr.Anshu Mahajan and Mr.Kamal Garg,
                               Advocates.
               versus

      M/S. MAHALAXMI ENTERPRISES                       ..... Defendant
                   Through: None

      CORAM:
      HON'BLE MS. JUSTICE REVA KHETRAPAL

1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?

      JUDGMENT

: REVA KHETRAPAL, J.

1. In this suit, the plaintiff seeks recovery of a sum of Rs.29,13,520/- (Rupees

Twenty Nine Lacs Thirteen Thousand Five Hundred Twenty only) along with

interest thereon from the defendant for certain materials supplied by the plaintiff

to the defendant.

2. The plaintiff's case in short is that it is engaged in the business of

manufacturing and marketing of Pesticides, Insecticides, Weedicides, Herbicides

and other cognate and allied goods and is running its business under the name and

style of M/s. Hindustan Pulverising Mills. The defendant Shri Sharad Kumar is

the proprietor of M/s. Mahalaxmi Enterprises having its place of business at

Agarsen Bhawan, Attabira Distt. Bargarh (Orissa). For the last several years, the

defendant has been purchasing various materials such as Pesticides, Insecticides,

Weedicides, Herbicides and other cognate and allied materials from the plaintiff

company against the oral and written orders of purchase placed by the defendant

to the plaintiff company from time to time. The plaintiff company, after supplying

the aforesaid materials through its CNF agent and later directly used to raise

invoices upon the defendant. At no point of time, the plaintiff company received

any notice or complaint from the defendant with regard to the quantity and quality

of the material supplied by the former to the latter.

3. The plaintiff company was maintaining a running account of the defendant

in the regular course of its business and as such posted all the payments received

from the defendant to the credit of the defendant's accounts against the invoices

raised by the plaintiff company from time to time. The last payment received by

the plaintiff company from the defendant existing in the books of accounts was on

14.10.2004, through a demand draft bearing No.023455 dated 12th October, 2004

for an amount of Rs.50,000/- (Rupees Fifty Thousand only), which was duly

entered and posted in the account of the defendant maintained in the books of

accounts of the plaintiff company.

4. The plaintiff company informed the defendant regularly to clear the

outstanding balance existing in his books of accounts, through various modes of

communication, but the defendant despite having received the aforesaid

communications and being fully aware of the fact that such outstanding was due

and payable by it, did not take any positive steps to make the payment. In order to

recover its outstanding liability, the plaintiff company, therefore, served upon the

defendant a registered legal notice dated 28th March, 2005, thereby calling upon

the defendant to clear the outstanding balance along with the interest thereon, to

which the defendant company sent its reply dated 18th April, 2005, in which it was

admitted by the defendant that it had placed orders of purchase with the plaintiff

company and the same were duly supplied by the plaintiff company to the

defendant against the invoices and bills, but the liability to make the payment was

denied. The plaintiff having exhausted all its remedies available in law in getting

the outstanding amount recovered from the defendant, has filed the instant suit in

this Court.

5. Summons of the suit were duly served upon the defendant, who refused to

accept the same and was accordingly directed to be proceeded with ex parte by an

order of this Court dated 14th December, 2007. The plaintiff thereafter filed its ex

parte evidence by way of an affidavit of Shri Akhil Kansal, the Company

Secretary of H/s. HIM Pulverising Mills Ltd., the sole proprietor of the plaintiff

company as Ex.PW-1/A, and proved on record the entire documentary evidence

which was exhibited as Ex.PW-1/1 to PW-1/56.

6. Having perused the averments made in the plaint, the affidavit of Shri

Akhil Kansal tendered in evidence by him as Ex.PW-1/A and the entire

documentary evidence exhibited as Ex.PW-1/1 to PW-1/56 and having heard the

learned counsel for the plaintiff, Mr.Anshu Mahajan, Advocate, my conclusions

are as under.

7. The present suit, which has been filed by PW-1 Mr.Akhil Kansal by virtue

of a resolution passed by the Board of Directors of the plaintiff company dated

29th October, 2005 (Ex.PW-1/1) and is signed and verified by the said Mr.Akhil

Kansal, has been filed in accordance with law, on the basis of the invoices along

with the delivery challans issued by the plaintiff company (Ex.PW-1/1 to PW-

1/49). The said invoices constitute the written contract between the parties. The

amounts reflected in the invoices are those claimed in the suit. The fact that the

plaintiff also maintains a running account reflecting the price of the goods

supplied by it and the payments made in respect thereof by the defendant, which

have been credited to the account of the defendant, further buttresses the case of

the plaintiff that the debited amounts are outstanding against the defendant.

8. As per the books of accounts of the plaintiff company, the outstanding

balance due and payable by the defendant is Rs.26,48,667/- (Rupees Twenty Six

Lacs Forty Eight Thousand and Six Hundred Sixty Seven only) and the relevant

statements of account for the period from 01.04.2003 to 31.03.2004 and

01.04.2004 to 31.03.2005 pertaining to the account of the defendant have been

duly proved on record as Ex.PW-1/50 and Ex.PW-1/51 respectively. All the said

accounting transactions posted in the books of account of the plaintiff company

in the due course of its business thus stand established on record.

9. It is also borne out from the record that in order to recoverer its aforesaid

outstanding liability, the plaintiff company had issued a registered legal notice

dated 28th March, 2005 through its counsel, asking the defendant to pay the

outstanding balance amount, that is, Rs.26,48,667/- (Rupees Twenty Six Lacs

Forty Eight Thousand and Six Hundred Sixty Seven only) along with interest

thereon, but the defendant despite having received the said legal notice (Ex.PW-

1/52), did not pay the outstanding amount to the plaintiff company. Rather, sent a

reply dated 18th April, 2005 (Ex.PW-1/56) denying its liability. Exhibits PW-1/53

and PW-1/54 are the postal receipts in respect of the aforesaid legal notice dated

28th March, 2005, while Ex.PW-1/55 is the postal acknowledgment due card

showing the receipt of the legal notice by the defendant.

10. The orders of purchase having been placed by the defendant at Delhi, that

is, at the registered office of the plaintiff company, and the payments having been

received by the plaintiff in Delhi, the material part of cause of action has arisen in

Delhi. This Court would, therefore, have jurisdiction to entertain the present suit.

Even in terms of the invoices, exclusive jurisdiction is conferred upon the Delhi

courts.

11. In view of the aforesaid and taking into account the fact that the cumulative

effect of the documents proved on record by the plaintiff is to show the

outstanding amount of Rs.26,48,667/- (Rupees Twenty Six Lacs Forty Eight

Thousand and Six Hundred Sixty Seven only) as due and payable by the

defendant to the plaintiff, there is little difficulty in this Court passing a decree of

Rs.29,13,520/- (Rupees Twenty Nine Lacs Thirteen Thousand Five Hundred

Twenty only) in favour of the plaintiff and against the defendant. A perusal of the

terms & conditions on the invoices show that the interest @ 24% p.a. was

payable and, accordingly, the claim for interest @ 24% p.a on the aforesaid

amount is also found to be justified and is, therefore, awarded to the plaintiff

from the date of institution of the suit till the date of realization of the said

outstanding amount.

12. The Registry is accordingly directed to draw up a decree in favour of the

plaintiff and against the defendant in the sum of Rs.29,13,520/- (Rupees Twenty

Nine Lacs Thirteen Thousand Five Hundred Twenty only) along with interest @

24% p.a. from the date of the institution of the suit in this Court till the realization

of the decretal amount with costs.

13. CS(OS) 310/2006 stands disposed of in the above terms.

REVA KHETRAPAL, J JULY 21, 2008 dc