M/S Bhushan Steel & Strips Ltd. vs M/S Bhartiya Loha Udyog (P.) Ltd.
2010 Latest Caselaw 783 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                   Judgment Reserved on: 04.2.2010
                   Judgment Delivered on: 10.2.2010


+      CS(OS) No.1734/1999, I.A.No.9113/2009 &
       Crl.M.A.No.12895/2009( u/O 340 Cr.P.C.)


M/S BHUSHAN STEEL & STRIPS LTD.        .............Plaintiff
             Through: Mr. Rajesh Banati & Mr. S.K.
                      Aggarwal, Advocates for the
                      plaintiff.

                    Versus

M/S BHARTIYA LOHA UDYOG (P.) LTD.
                                            .............Defendant
                    Through:     Mr. Pradeep Dewan & Mr. Rajiv
                                 Samaiyar,Advocates  for   the
                                 defendant.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                   Yes

INDERMEET KAUR, J.

1. The present suit has been filed for recovery of

Rs.80,47,868/-. The plaintiff is M/s Bhushan Steel & Strips Ltd.,

a company registered under the Companies Act 1956, having its

office at Plot No.23, Site IV, Industrial Area, Shahibabad,

Ghaziabad (U.P.). The suit has been filed through its law officer

Mr.Rishipal, authorized vide power of attorney dated 18.5.1999

to sign and verify the pleadings on behalf of the plaintiff.

2. Defendant M/s Bhartia Loha Udyog Pvt. Ltd. is also a

company registered under the Indian Companies Act, 1956,

having its office at Z-216/1, Loha Mandi, Naraina, New Delhi.

3. Plaintiff at the request of the defendant supplied C.R.

Coils/Sheets & G.P. Sheets of various sizes to the defendant

from time to time and various bills were raised by the plaintiff; a

running account was maintained by the parties. Account

payments received by the plaintiff from the defendant were

given due credit in the books of the plaintiff. Books of account

of the plaintiff were regularly audited and maintained in the

ordinary course of the business.

4. As per the accounts of the plaintiff, a sum of

Rs.54,65,445.60 became due from the defendant in terms of the

statement of account filed along with plaint annexure P-1. This

statement of account is for the periods 1.4.1994 to 31.3.1995,

01.4.1995 to 31.03.1996 and 01.4.1996 to 31.3.1997.

5. On 17.4.1997 an amount of Rs.5,00,000/- was sent by the

defendant vide cheque no.072375 to the plaintiff to clear the

aforestated part outstanding amount. The said cheque was

dishonoured by the banker of the defendant with the remark

"payment stopped by the drawer". Criminal complaint under

Section 138 of the Negotiable Instruments Act (hereinafter

referred to as the N.I.Act) was filed by the plaintiff which is

pending adjudication in the Court of Metropolitan Magistrate,

Ghaziabad.

6. Legal notice dated 12.4.1999 was sent by the plaintiff to

the defendant asking him to clear his outstandings along with

interest @ 21% per annum. However, payments were not made.

Plaintiff has claimed the aforestated amount with interest;

interest is calculated at Rs.25,82,422.40 @ 21% per annum on

the principal figure of Rs.54,65,445.60. Interest has been

claimed from 17.4.1997 till 17.7.1999.

7. In the written statement defendant has taken preliminary

objections; the plaint has not been signed, verified by a duly

authorized person; there is no cause of action as the accounts

between the parties stood settled in April 1996 and there had

been no transaction between the parties after 11.4.1996.

8. It is stated that the plaintiff has suppressed material facts;

plaintiff had been allowed to use the premises of the defendant

situated at Naraina; defendant is dealing in sale and purchase of

iron sheets and the parties had good business dealings with one

another. Disputes arose with the plaintiff when the plaintiff

started charging higher rates as compared to the competitors in

the market but on assurances of the plaintiff, the defendant

continued to purchase the material from others on the premise

that the loss would be compensated by the plaintiff. Since the

plaintiff failed to adhere to his business dealings, the dealings

between the parties stopped. Suit is also bad for mis-joinder of

the parties.

9. On merits, it has been reiterated that the accounts

between the parties had been settled in April 1996 and after

11.4.1996 there had been no dealings between the parties. No

amount is due and recoverable from the defendant.

10. It is stated that the cheque bearing no.072375 dated

17.4.1997 was never issued to the plaintiff by the defendant. At

the time of settling the accounts in September 1995, the

defendant gave ten cheques to the plaintiff; out of the ten

cheques nine cheques were encashed up to November 1995 and

it was represented by the plaintiff that cheque no.072375 had

been lost and was not traceable by the plaintiff. On the advice

of plaintiff, defendant wrote a letter to its banker in January

1996 for stopping the payment of the aforestated cheque.

Defendant on 10.3.1996 paid a sum of Rs.5,00,000/- to the

plaintiff against this lost cheque. Cheque dated 17.4.1997 is a

classic case of forgery even as per the statement of account filed

by the plaintiff. Forgery has been done by the plaintiff to bring

the present suit within limitation. The said fact was also

communicated by the defendant to the plaintiff vide

communication dated 15.1.1996.

11. Present case has been filed by the plaintiff as a measure

for pure harassment as the relations between the parties had

become strained. No amount is due from the defendant. The

entire accounts having been settled between the parties in

April1996, there was no occasion to issue any cheque to the

plaintiff on 17.4.1996; suit of the plaintiff is liable to be

dismissed.

12. Replication has been filed reiterating the averments

contained in the plaint while denying the submission and the

defence as set up by the defendant in his written statement.

13. On 19.11.2001, on the pleadings of the parties, the

following issues were framed:-

1. Whether the plaint has been signed and verified and

suit instituted by a duly authorized person?

2. Whether the plaintiff has no cause of action for filing

the suit?

3. Whether the suit is barred by time?

4. Whether the suit is bad for misjoinder of causes of

action?

5. Whether the plaintiff is entitled to recover a sum of

Rs.80,47,868/-, claimed in the plaint?

6. Whether the plaintiff is entitled to interest, claimed? If

so, at what rate?

7. Relief.

14. Plaintiff has examined one witness in support of his case

PW-1 Rishipal the authorized representative of the plaintiff

company.

15. On 09.1.2004, the affidavits by way of evidence filed by

the defendant were held to be beyond pleadings of the

defendant; the said two additional affidavits were permitted to

be withdrawn by the defendant. On 15.3.2004 it was recorded

that the fresh affidavit by way of evidence was also beyond the

pleadings of the parties.

16. Defendant in support of his case has examined four

witnesses. On 13.1.2005, oral evidence of the defendant was

permitted to be recorded. Mr.Gopal Chand Mittal, director of

the defendant company was examined on oath as DW-1. DW-2

Mr.Hemender Singh, had brought the summoned record of the

plaintiff company showing its name change i.e. from M/s

Bhushan Industries Pvt. Ltd to M/s Bhushan Industries Ltd. and

then to M/s Bhushan Ltd; sales tax registration certificates of

the company are Ex.DW-2/3 to Ex.DW-2/4. DW-3 Mr.D.D.Pandit,

computer operator in the State Bank of Bikaner & Jaipur had

produced the statement of account of the defendant showing the

instructions given to the Bank for "stop payment" against

cheque No.072375 dated 08.01.1996 Ex.DW3/1 & Ex.DW3/2.

DW-4 Mr.Suresh Pal Singh the Ahlmad (Record Keeper) of the

Court of M.M. Ghaziabad had produced certified copy of the

voucher of the disputed cheque No. 072375 dated 18.11.1995

Ex.DW4/2.

17. Arguments have been heard and record has been perused.

18. Findings on the issues are as follows:-

19. ISSUE No.1

PW-1 Rishipal has on oath deposed that he is the

constituted attorney and authorized representative of the

plaintiff company. He is conversant with the facts of the case.

Company is duly registered under the Indian Companies Act.

Certificate of incorporation is Ex.PW-1/1. PW-1 has been

authorized to file the suit vide power of attorney Ex.PW1/2 dated

18.5.1999 duly executed by Neeraj Singhal, managing director

of the plaintiff, in his favour to sign and verify the pleadings and

to institute the present suit on behalf of the company. Ex.PW-

1/2 has been duly notarized and is endorsed on a stamp paper of

Rs.10/-. In his cross-examination, PW-1 had denied the

suggestion that he is not competent to sign, verify or institute

the suit on behalf of the plaintiff company.

20. It is submitted that the plaintiff is admittedly a company;

there is no board resolution authorizing Rishipal to sign and

verify the plaint on behalf of the company; a power of attorney

can be executed by a company only by following the due

procedure which is contained in Section 48 of the Companies

Act; which mandates that the common seal of the company has

to be affixed on the said power of attorney. Ex.PW-1/2 does not

contain the seal of the company. Provisions of Order 29 Rule 1

of the Code of Civil Procedure (hereinafter referred to as „the

Code‟) also cannot be resorted to as Rishipal is admittedly only a

law officer; Neeraj Singhal not being a principal officer of the

corporation he could not have executed the power of attorney;

Order 29 of the Code even otherwise applies to verification of

pleadings only and not to the institution of a suit. Reliance has

been placed upon AIR 1991 Delhi 25 M/s Nibro Ltd. Vs. National

Insurance Co. Ltd. , 1996 6 SCC 660 United Bank of India Vs.

Naresh Kumar & Ors. It is stated that the provisions of Order 6

Rule 14 of the Code specifically direct that the pleadings can be

signed only by a duly authorized person. Rishipal could not have

been delegated the authority to sign the pleadings on behalf of

the plaintiff corporation.

21. Order 29 Rule 1 of the Code prescribes that the pleadings

can be signed or verified on behalf of the corporation by a

director of the corporation as well. Neeraj Singhal in his

capacity as managing director of the plaintiff company had vide

Ex.PW-1/2 dated 15.7.1999 authorised Rishipal to sign and

verify the pleadings on behalf of the plaintiff company and to

take steps for filing a suit for recovery of Rs.80,47,868/- against

the defendant and to do all such act in lieu thereof. This power

of attorney had been executed in terms of the agreement dated

1.10.1994 entered into between the company and the managing

director. It not having the seal of the company is an irregularity

which cannot defeat the otherwise valid and subsisting claim of

the plaintiff.

22. In 1996 6 SCC 660 United Bank of India Vs. Naresh Kumar

& Ors., it had been held by Supreme Court that procedural

defects which do not go to the root of the matter should not be

permitted to defeat a just cause. There is sufficient power in the

Courts, under the Code, to ensure that injustice is not done to

any party who has a just case as for as possible a substantive

right should not be allowed to be defeated on account of a

procedural irregularity which is curable.

23. Plaintiff has been able to establish that the plaint has

been signed, verified and instituted by a duly authorized person.

24. Issue no.1 is decided in favour of the plaintiff and against

the defendant.

25. ISSUE NO.2:-

The cause of action for filing the present suit has been

detailed in para nos. 9 &10 of the plaint. It is stated that a sum

of Rs.54,65,445.60 is due from the defendant along with

interest; On 17.4.1997 the cheque given by the defendant to the

plaintiff, on presentation had been dishonoured by the

defendant‟s banker. Cause of action is a bundle of facts. The

said facts must have a direct nexus to the lis between the

parties. Averments in the aforementioned paras of the plaint

have a direct nexus to the lis involved.

26. Issue no.2 is decided in favour of the plaintiff and against

the defendant.

27. ISSUE NO.4:

A preliminary objection has been taken that the suit is bad

for mis-joinder of causes of action and is liable to be dismissed

under Order 2 Rule 2 of the Code. DW-1 in his entire

examination-in-chief has not whispered a word about this

objection. None of the other witnesses of the defendant has also

deposed to the said effect. At the time of final arguments

counsel for the defendant conceded that he is even otherwise

not pressing this issue.

28. ISSUE NOS.3 and 5:-

PW-1 Rishipal is the only witness on behalf of the plaintiff.

He has on oath reiterated the averments made in the plaint. He

has deposed that the plaintiff had been supplying C.R.

coils/sheets and G.P.sheets of various sizes to the defendant

from time to time. Plaintiff had raised various bills; running

account was maintained between the parties. Accounts of the

plaintiff were being regularly audited; no objection was ever

raised by the defendant to the correctness of the accounts of the

plaintiff. As per the statement of account Ex.PW-1/3, a sum of

Rs.54,65,445.60 was due and outstanding in the name of the

defendant. This statement of account Ex.PW-1/3 is from period

1.04.1994 to 31.03.1995, 1.04.1995 to 31.03.1996 and

thereafter from 01.04.1996 till 31.03.1997. There are hundreds

of entries showing the various transactions between the plaintiff

and the defendant. The closing balance as on 22.4.1997 shows

that an amount of Rs.54,65,445.60 is due from the defendant.

29. PW-1 has deposed that the defendant had been making

payment of cheques; one such cheque bearing no.72375 dated

17.4.1997 drawn on State Bank of Bikaner & Jaipur, Naraina

Industrial Area in the sum of Rs.5,00,000/-was given to the

plaintiff towards discharge of their outstanding. On

presentation the defendant bank dishonoured the cheque with

remark "payment stopped by drawer". The cheque Ex.PW-1/4

has an endorsement that the cheque has been stopped for

payment; the return memo is Ex.PW-1/5. Complaint under

Section 138 of N.I.Act was filed which is pending before

Ghaziabad Court.

30. The contention of the defendant is that the cheque dated

17.4.1997 was never issued by him; it is forged document; if this

document is discarded, the suit of the plaintiff which was filed

on 5.8.1999 is clearly time barred as the last transaction even as

per the statement of account Ex.PW-1/3 filed by the plaintiff

shows that it was made in July 1996.

31. In view of the aforestated objection, both these issues will

be decided by a common discussion.

32. Ex.PW-1/3 is the statement of account filed by the plaintiff

into 19 pages. In support of this statement of account 274 bills

i.e. the transactions between the plaintiff and the defendant

have been filed by the plaintiff. It is relevant to state that at the

time of admission/denial of documents, the defendant made a

blanket denial of all the aforestated bills. In the next breadth

the defendant in support of his case filed the same bills and

placed reliance upon them. They are Ex.DW-1/58A to DW-

1/332A. These bills evidence an endorsement on them referring

to certain discounts which the plaintiff had allegedly given to the

defendant. These discounts are noted on all the bills i.e. from

06.04.1994 onwards upto 14.8.1995.

33. The defence of the defendant which has been reiterated on

oath by DW-1 is that accounts stood squared in April 1996 and

after that no running account was maintained between the

parties; whatever goods were supplied by the plaintiff, payment

were made by the defendant on a bill to bill basis. It was further

agreed that the plaintiff company will give cash discount of 2%.

This was pursuant to the disputes which had arisen between the

parties as the plaintiff was charging higher rates as compared to

the other competitors in the market. No cheque no.072375

dated 17.4.1997 had been issued to the plaintiff; there was no

occasion to do so. Ten cheques had been issued by the

defendant to the plaintiff in September 1995; plaintiff has

averred that the disputed cheque i.e. the cheque no.072375 had

been lost and it was not traceable. In January 1996 on the

advice of the plaintiff the defendant had written a letter to his

banker for stopping payment of the aforestated cheque.

Reliance by the plaintiff on this cheque dated 17.4.1997 is a

forgery committed by the plaintiff to bring his suit within

limitation.

34. This defence as set up by the defendant is implausible. The

statement of DW-1 on oath is a material improvement which did

not find mention in his pleadings; in his written statement, he

had not stated that the plaintiff had agreed to give cash discount

of 2%. Even otherwise as per the case of the defendant, the

cash discounts was to be given by the plaintiff after April 1996

when the parties had settled their disputes. DW-1 has relied

upon letters Ex.DW-1/1, Ex.DW-1/2 and Ex.DW-1/3 dated

20.04.1996, 26.4.1996 and 02.05.1996 to substantiate his

submission that after April 1996 payments were made on bill to

bill basis on the discounts agreed to be given by the plaintiff and

payments were made after deducting cash discounts. Perusal of

the bills Ex.DW-1/58A to DW-1/332A filed by the defendant

himself show that in all the bills which are commencing from

6.4.1994 right upto 14.8.1995 there is an endorsement in ball

pen showing rate difference of different amounts in the different

bills. Defendant by his own documents evidenced that even in

April 1994, the plaintiff was offering discounts to him which is

not his case as set up in his evidence on oath. His oral and

documentary evidence is contrary and conflicting. This

submission of 2% discounts offered by the plaintiff was even

otherwise a material improvement which was made by him on

oath for the first time; it was not mentioned in the written

statement. DW-1 in his cross-examination has also admitted that

these discounts were not reflected in Ex.PW-1/3. Ex.DW-1/14 is

another written statement filed by the defendant in an earlier

suit i.e. suit No.1734/1999. This was filed on 19.5.2000. Stand

of the defendant was that the parties had settled accounts in

April 1996; thereafter payments were made on bill to bill basis;

even in this written statement there was no mention that

plaintiff had agreed to give 2% discount to the defendant

thereafter. Case of the defendant is totally demolished when he

has gone back on his own stand and by his own documents

evidenced that the plaintiff was giving discounts even in April

1994. Defendant has not come to the Court with clean hands.

35. Defendant‟s submission is that cheque No.072375 dated

17.04.1997 could never have been issued so to him as there was

a series of 10 cheques from 072368 to 072377 which had been

issued by the defendant to the plaintiff. It is difficult to imagine

that one single cheque No.072375 had been retained by the

defendant and the other cheques issued by him, stood encashed

as is evident from Ex.PW-1/3 i.e. the statement of account filed

by plaintiff.

36. On the first blush, this argument appears to be attractive.

However, this is also a false evidence which has been set up by

the defendant. The defendant has stated that he had stopped

payment of this cheque in January 1996 as the plaintiff had

informed him that this cheque was not traceable. In lieu of this

cheque another cheque of Rs.5,00,000/- had been given by the

plaintiff in March 1996 itself. Ex.DW-1/4 is the letter of

intimation to the bank dated 08.01.1996 written by the

defendant to the Bank. This letter has been proved by DW-3 as

well as Ex.DW-3/2. On oath DW-1 has stated that the Bank had

been informed on 11.1.1996; Ex.DW-1/4 is dated 08.01.1996.

Testimony of DW-1 does not match the date in Ex.DW-1/4. DW-1

has further stated that a copy of this letter had been sent to the

plaintiff company on 15.1.1996 Ex.DW-1/5. Ex.DW-1/6 is a UPC

receipt evidencing its dispatch; what was in the UPC has not

been established by the defendant. Ex.DW-1/4 and DW-3/1 also

do not show that this letter had been endorsed to the plaintiff.

PW-1 on oath has categorically denied that he had received any

such communication. If the defendant had stopped the payment

of this cheque which as per his averment was on the information

given by the plaintiff that this cheque had been lost, it would

have been a most natural conduct of the defendant to have

informed the plaintiff that this cheque had been stopped for

payment for the said reason. Defendant has failed to establish

this.

37. Further defence of the defendant that he had given a

cheque in March 1996 in lieu of this misplaced cheque also

appears to be implausible. Admittedly, there is no such

document. That apart, this defence does not find mention in the

reply given by the defendant to the legal notice. Legal notice

Ex.PW-1/6 dated 12.4.1999 had been sent by the plaintiff. In

Ex.PW-1/6, it has clearly been mentioned that cheque no.072375

dated 17.4.1997 for a sum of Rs.5,00,000/- had been given by

the defendant which was dishonored on presentation. The reply

to the legal notice is Ex.DW-1/9. It is dated 26.4.1999. In this

reply it is stated that ten undated cheques had been issued by

the defendant to the plaintiff out of which nine cheques were

encashed this cheque no.072375 had been reported by the

plaintiff to have been lost; in good faith the bank was informed

by letter dated 11.1.1996 to stop the payment of the aforestated

cheque. There is no mention herein that a substitute cheque

dated 12.3.1996 had been issued in lieu of this lost cheque

which is the defence which was taken up in the written

statement. It would have been natural and obvious for the

defendant to have replied to this averment by telling the plaintiff

that he had already replaced his lost cheque with the substituted

cheque dated 10.3.1996 but this did not find mention in the

reply to the legal notice and this is for an obvious reason. The

obvious reason being that till that time, defendant had not built

up his strategy; it was only in the written statement which was

filed in March 2000 that the defendant took the plea that last

cheque had been replaced by cheque dated 12.3.1996. This is a

sham defence.

38. Defendant has vehemently argued that the plaintiff has

fabricated its record; the initial statement of account Ex.PW-1/3

a copy of which has been sent to the defendant along with

summons in the suit had mentioned the disputed cheque

no.072375; thereafter the plaintiff realized his mistake in his

statement of account and by ball pen has changed the entry

from 072375 to 072373. Attention has been drawn to the

statement of account which has been received by the defendant

and the statement of account Ex.PW-1/3 which has been filed by

the plaintiff in Court. There is no doubt that 072375 has been

overwritten with the last digit as „3‟ over the digit ‟5‟. This is

clearly a typing error and this submission of the plaintiff finds

support from the fact that there is no other reason as to why the

cheque number would have been mentioned as 072375 in

Ex.PW-1/3 when this cheque number has been relied upon by

the plaintiff in his pleadings. Plaintiff in his plaint in para no.7

has clearly stated that cheque no.072375 on presentation had

been dishonoured by the defendant. Who had made the

correction in Ex.PW-1/3 and ball pen insertion of the digit „3‟ on

the digit „5‟, is not answered.

39. An application under Section 340 Cr. P.C. has also been

filed by the defendant wherein it has averred that this is a

fabrication which has been made by the plaintiff for which he

should be penalized. DW-4 has been summoned in the witness

box with the record of the proceedings filed under Section 138

of the N.I.Act pending before the Magistrate. Certified copy of

statement of account Ex.DW-4/1 issued by Delhi High Court

shows the cheque number is 072375, thus, establishing

averments of the defendant that initially the statement of

account which has been filed in the Delhi High Court bore

cheque number 072375; thereafter in Ex.PW-1/3 the last digit „5‟

had been converted to „3‟ to make it read as cheque no. 072373.

However, it has not been established as who is responsible for

this change whether it was plaintiff or whether it was defendant

or any other interested party cannot be prima facie established.

Contention of the plaintiff is that this is a mischief played by the

defendant himself to divert from the main issue i.e. the liability

of the defendant and to throw out the case of the plaintiff when

this is a simple typing error. There is force in this submission of

learned counsel for the plaintiff. There is no reason as to why

and for what purpose plaintiff would forge the record. Cheque

no.072375 has been relied upon by the plaintiff in his plaint and

finds mention in it. Cheque number mentioned as 072375 in

Ex.PW-1/3 is obviously and apparently a typing error which has

occurred in the statement of account. Who has made the

necessary change cannot be answered. In these circumstances,

the application under Section 340 Cr. P.C. also has no merit; it is

dismissed.

40. In this context, it is relevant to state that the subject

matter of the proceedings under Section 138 of the N.I.Act was

disposed of by the order of the Allahabad High Court dated

06.4.2004. It has been held that a cheque which has been

stopped for payment would fall within the parameters of a

dishonor of a cheque as contained in Section 138 of the N.I. Act.

41. The defendant has further averred that this was an

undated cheque which has been given by the defendant to the

plaintiff. The plaintiff had filled in the date of 17.4.1997 to

bring his suit within limitation. No pleadings in the complaint

case i.e. the case under Section 138 of the N.I.Act has been

placed on record to substantiate as to whether this was also the

defence taken by the defendant in the said case. This defence

does not find mention in the order of Allahabad High Court

where the defendant sought quashing of the proceedings on the

ground that a cheque which has been stopped for payment

would not fall within the ambit of a dishonor of cheque under

Section 138 of the N.I.Act. This also reinforces the belief of this

Court that the defence set up by the defendant is sham. It was

in lieu of a valid transaction that the cheque dated 17.4.1997

had been issued by the defendant to the plaintiff.

42. PW-1 has proved the statement of account Ex.PW-1/3. It

would again be pertinent to point out that no dispute about the

correctness of the figures mentioned in this document has been

raised by the defendant. Ex.PW-1/3 has reflected the bills raised

by the plaintiff and the payments made by the defendant. As

already discussed supra a large percentage of these bills are bill

to bill payment even in the year 1994-95 and some parts of the

statement of account reflect that the bills had been raised but

the payments were made in account by the defendant. In his

cross-examination, DW-1 had admitted that there is no

document which has been given by the plaintiff showing that the

accounts between the parties have been settled on 15.7.1996;

there is also no document given by the plaintiff stating that the

running account between the parties stand closed.

43. Parties were admittedly enjoying cordial business relations

with one another right from the year 1983. It has also been

established that the plaintiff was using the premises of the

defendant. DW-2 has brought the summoned record of the

plaintiff evidencing that the plaintiff company had been

registered with the Sales Tax Department of Delhi. The place of

business of this company was at X-37A, Loha Mandi Naraina,

New Delhi as also Z-216, Loha Mandi, Naraina, New Delhi. Both

the properties were owned by the defendant; because of his

cordiality, plaintiff was using the premises of the defendant.

DW-2 has established that it was only in November 1997 that

the business of the plaintiff shifted to Y-3C, Loha Mandi,

Naraina from its earlier premises.

44. From this record oral and documentary, it has been

established and in fact not disputed that the parties had

business relationship with one another from 1983 up to April

1996. Question is whether the parties had settled all their

scores and closed the running account after April 1996; whether

after April 1996 a bill to bill payment was being made with a 2%

cash discount offered by the plaintiff.

45. In view of the evidence discussed supra this has not been

established by the defendant. On the other hand, plaintiff has

been able to establish that he is entitled to recover

Rs.54,65,445.60 in terms of the bills which had been raised by

him upon the defendant. Last payment having been received by

cheque dated 17.4.1997 in the sum of Rs.5,00,000/- which

cheque stood dishonoured. It was a valid document for the

purpose of extension of the period of limitation.

46. In 1997 42 DRJ Rajesh KUmari Vs. Prem Chand Jain on

construing the principle of Section 19 of the Limitation Act 1963

it was held by a Bench of this Court that a payment by cheque

satisfies the requirement of Section 19. Dishonoring of a

cheque would not result in extinguishing the liability of the

debtor to the extent of the amount of the cheque; the cheque

remains an effective payment for the purpose of Section 19 of

the Limitation Act.

47. Cheque dated 17.4.1997 was a valid acknowledgment

made by the defendant of his liability and was well within the

period of limitation. Present suit filed on 05.08.1999 is, thus,

not barred by time.

48. Counsel for the defendant has relied upon AIR 1968 1413

Gopal Krishanji Ketkar Vs. Mohamed Haji Latif & Ors., (2006) 6

SCC 120 Rajappa Hanamantha Ranoji Vs. Mahadev

Channabasppa & Ors. (2003) 2 SCC 91 Janki Narayan Bhoir Vs.

Narayan Namdev Kadam. It is submitted that non-production of

best witness and best evidence destroys the case of the

prosecution. Plaintiff has to stand on his own legs. Books of

account had not been produced during cross-examination of

PW-1. These submissions are bereft of any merits. Original

books of account of the plaintiff had been produced in Court. It

is only after a comparison of original statement of account that

the copy of the statement of account was exhibited as Ex.PW-

1/3. This is clear from the examination-in-chief of PW-1

recorded on 10.3.2003 wherein it is stated by the plaintiff that

he has brought the original statement of account maintained by

the plaintiff company. Submission of the defendant that

C.M.Mittal, S.C.Verma and Rakesh Chaturvedi had not been

produced as witnesses by the plaintiff is not only a misdirected

argument but wholly unworthy. Names of the aforestated

persons had appeared for the first time in the cross-examination

of DW-1; plaintiff evidence had been concluded.

49. Plaintiff has been able to establish that he is entitled to

recover the aforestated amount of Rs.54,65,455.60 in terms of

the statement of account Ex.PW-1/3. The suit is well within the

period of limitation.

50. Issue nos.3 and 5 are decided in favour of the plaintiff and

against the defendant.

Plaintiff has also claimed interest @ 21% per annum on

the principal amount of Rs.54,65,445.60. Interest amount

calculated is Rs.25,82,422.40. This interest is claimed from

17.4.1997 till 17.7.1999. Admittedly, there was no contract for

interest on delayed payment. This has also not been contended

by the plaintiff. In today‟s scenario keeping in view the market

rate, being a commercial transaction plaintiff is entitled to

interest @ 12% per annum on the principal amount of

Rs.54,65,445.60 from 17.4.1997 to 17.7.1999.

52. ISSUE No. 7 : RELIEF:

Suit of the plaintiff is accordingly decreed for

Rs.69,41,115.90 with future interest @ 9% per annum from the

date of the decree till realization. Cost is also awarded in favour

of the plaintiff. Decree sheet be drawn. File be consigned to

Record Room.

(INDERMEET KAUR) JUDGE FEBRUARY 10, 2010 nandan