Delhi High Court
M/S. Joy Company India Pvt. Ltd. vs M/S. J.K.Traders on 22 September, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 564/2004
M/S. JOY CO. INDIA (P) LTD. ..... Appellant
Through: Mr. Sandeep Aggarwal, Advocate
versus
M/S. J.K.TRADERS ..... Respondent
Through: Nemo
DATE OF DECISION
% 22.09.2008
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R.MIDHA
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?
: PRADEEP NANDRAJOG, J.(Oral)
1. The appellant who was the plaintiff could not manage
to obtain a decree even at an ex-parte trial.
2. Vide impugned judgment and decree dated 1.3.2004,
the suit filed by the appellant has been dismissed on 2 counts.
It has been held that the suit is barred by limitation. It has also
RFA 564/2004 Page 1 of 6
been held that the appellant failed to prove that Mr. Joydeep
Deb is the sole proprietor of the respondent M/s. J.K.Traders.
3. It was stated in the plaint that the appellant had
appointed J.K.Traders the sole proprietor firm of Joydeep Deb as
its distributor on the terms contained in the letter of
appointment dated 22.4.2006. It was stated that the goods
were delivered to the respondent with a clear term that on
overdue payment interest would be payable @ 36% per annum.
It was pleaded that business was conducted till 8.2.2000 and
that a running account was maintained in which debit and credit
entries were made. In para 11 of the plaint it was specifically
pleaded that goods were supplied on 12.10.1990, 22.12.1990
and 8.2.2000 for which a sum of Rs.5,85,127/- was due and
payable. It was stated that after adjusting Rs.32,142.44,
balance amount of Rs.5,52,984.56 was payable. Interest on said
amount @ 36% per annum was claimed as the pre-suit amount
totaling Rs.3,75,787/-.
4. Suit amount was Rs.5,52,985/- + Rs.3,75,787/- =
Rs.9,28,772/-.
5. At the trial the letter dated 2.4.1996 was proved as
Ex.CW-1/C. Statement of account maintained by the appellant
RFA 564/2004 Page 2 of 6
was proved as Ex.CW-1/E-1 to E-5. A letter dated 24.5.2001 was
proved as Ex.CW-1/H.
6. The invoices raised from time to time were proved as
Ex.CW-1/F-1 to Ex.CW-1/F-57.
7. The documents evidence that Mr. Joydeep Deb has
been affixing the stamp of M/s. J.K.Traders showing him to be
the authorized signatory.
8. Dismissing the suit holding the same to be barred by
limitation learned Trial Judge has picked on the language of
Ex.CW-1/H admittedly written by the appellant wherein following
has been written:-
"Since you were having a running account with us, for
simplicity sake we have taken outstanding against the
last 3 invoices. Actually the outstandings pertain to
the invoices raised during the year 1997. Hence actual
outstandings are more than 4 years old. Inspite of
various efforts from our Regional Manager and other
Executives, you have deliberately chosen to ignore
their request and have kept the balance outstanding
for such a long time."
9. Learned Trial Judge has held that the same evidences
transaction between the parties only in the year 1997. Since
the suit was filed on 20.3.2003 the same has been held to be
barred by limitation.
10. Additionally it has been held that the appellant has
RFA 564/2004 Page 3 of 6
failed to prove that Joydeep Deb was the sole proprietor of the
respondent firm.
11. It has also been held that the appellant would not be
entitled to any interest because the letter Ex.CW-1/A was
followed by a formal agreement entered into between the
parties Ex.CW-1/B on 1.4.1997 which does not contain any
clause for payment of interest.
12. Pertaining to the suit being held as barred by
limitation, suffice would it be to note that in the particular
paragraph of the letter Ex.CW-1/H picked on by the learned Trial
Judge an obvious misprint of the year has occurred. This is
evident from the fact that in the preceding para the appellant
has referred to goods supplied vide invoices dated 12.10.1999,
22.12.1999 and 8.2.2000.
13. Any doubt in the mind of the learned Trial Judge
should have been cleared with reference to the Ex.CW-1/E-1 to
E-5, being the statement of account which shows debit and
credit entries till as late as 31.12.2000.
14. We thus hold that the suit is within limitation.
15. Whether Joydeep Deb was the sole proprietor of
J.K.Traders is irrelevant because the documents show that
RFA 564/2004 Page 4 of 6
J.K.Traders was dealing with the appellant as the distributor.
The defendant was J.K.Traders.
16. A sole proprietary firm cannot sue as a plaintiff, but a
suit can be filed against the sole proprietary firm. Order 30 Rule
10 of the Code of Civil Procedure reads as under:-
"10. Suit against person carrying on business in
name other than his own - Any person carrying on
business in a name or style other than his own name,
or a Hindu undivided family carrying on business under
any name, may be sued in such name or style as if it
were a firm name, and, in so far as the nature of such
case permits, all rules under this Order shall apply
accordingly."
17. That apart, the documents which have been proved
show that Joydeep Deb has been affixing the stamp of
J.K.Traders and has been signing on behalf of the said firm,
though as „Authorized Signatory‟.
18. As noted above, the respondent chose to remain ex-
parte and did not come forward to explain who Joydeep Deb
was. The finding returned that the suit could not be decreed
against J.K.Traders on said account is accordingly set aside.
19. On the issue of interest, learned counsel for the
appellant conceded that interest @ 36% per annum is excessive
and could be awarded @ 12% per annum.
RFA 564/2004 Page 5 of 6
20. On the entitlement of interest, Ex.CW-1/1 being the
letter appointing respondent as the distributor records that
interest would be payable on overdue payment @ 36% per
annum.
21. That apart, vide Ex.CW-1/H, a demand for interest
has been raised. The letter is dated 24.5.2001.
22. Said letter can thus be treated as a notice demanding
interest under the Interest Act 1978.
23. The appeal is accordingly disposed of by setting
aside the impugned judgment and decree dated 1.3.2004.
24. Suit filed by the appellant is decreed in sum of
Rs.5,52,985/- with interest @ 12% per annum with effect from
1.4.2001 till realization. The appellant shall also be entitled to
the cost of the suit as also the cost in the appeal.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
SEPTEMBER 22, 2008
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