M/S Parkaire Engineering Co.(P) ... vs M/S Vashmi Chemicals Ltd.
2011 Latest Caselaw 5701 Del

$~21

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1315/2008

                                  Decided on: 24th November, 2011
       M/S PARKAIRE ENGINEERING
       CO.(P) LTD.                      ..... Plaintiff
                     Through : Mr. Ashish Aggarwal and
                             Ms. Noorun Nahar Firdausi,
                             Advs.

                       versus

       M/S VASHMI CHEMICALS LTD.      ..... Defendant
                    Through  : Mr. Kuldeep Singh Tomar,
                             Proxy Counsel

Coram:

HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?                   No

       2. To be referred to Reporter or not?                        No

       3. Whether the judgment should be
          reported in the Digest?                               No

A.K. PATHAK, J. (ORAL)

1. Plaintiff has filed this suit for recovery of `28,35,430.64/-

(Rupees Twenty Eight Lacs Thirty Five Thousand Four Hundred

Thirty and Sixty Four Paise Only) together with pendente lite and

future interest @ 21% per annum.

2. It is alleged that plaintiff is a private limited company

incorporated under the Companies Act, 1956. Mr. Vijay Prakash

Sawhney, is competent to sign, verify and institute the plaint on

behalf of the plaintiff having been duly authorized in this regard.

Defendant is a company incorporated under the Companies Act,

1956. Earlier, defendant was known as M/s. Vamshi Exports Pvt.

Ltd., however, with effect from 14th September, 2006, its name was

changed to M/s. Vamshi Chemicals Ltd.

3. Plaintiff is engaged in the business of designing and

manufacturing of all types of heat exchangers, pressure vessels,

L.P.G. bullets, chilling units, hot water generators, air cooled oil

coolers, calorifiers, columns, reactors and other allied equipments.

Defendant approached the plaintiff at Delhi and requested for

supply of various goods manufactured by it. Accordingly, plaintiff

supplied goods to defendant, through invoices from time to time

against the purchase orders. Defendant acknowledged the receipt

of goods from the plaintiff, inasmuch as issued C-Forms from time

to time. Lastly C-Form was issued on 7th April, 2006 in respect of

the supplies made vide invoice nos. 23 and 26 dated 13 th June,

2005 and 16th June, 2005 respectively, both for `6,29,059/-

(Rupees Six Lacs Twenty Nine Thousand Fifty Nine Only).

Plaintiff had been maintaining a mutual and running account in the

name of defendant in its books of accounts, wherein the supplies

made and the payment received was recorded. A sum of

`17,39,528/- (Rupees Seventeen Lacs Thirty Nine Thousand Five

Hundred Twenty Eight Only) was due and outstanding against the

defendant in terms of the statement of account, which defendant

was liable to pay with interest @ 21% per annum. Despite

repeated requests, defendant failed to make the payment.

Accordingly, telegram dated 24th June, 2008 was sent to the

defendant, calling upon it to make payment, but to no effect.

Hence, the suit for recovery of `28,35,430.64/- (Rupees Twenty

Eight Lacs Thirty Five Thousand Four Hundred Thirty and Sixty

Four Paise Only), that is, `17,39,528/- + `10,95,902.64 towards

interest @ 21% per annum.

4. After the service of summons, defendant appeared through

counsel. However, written statement was not filed despite

opportunities granted to the defendant, consequently, vide order

dated 20th February, 2009 defendant's opportunity to file written

statement was closed.

5. Plaintiff has led evidence by way of affidavit of its

Executive Director Mr. A.K. Saksena as (PW1). His affidavit is

Ex. PW1/A. This witness has even been cross examined by the

defendant's counsel.

6. PW1 has fully corroborated the averments made in the

plaint. He has also perused documents. Certified copy of Board

Resolution is Ex. PW1/1. By this Board Resolution, Mr. Vijay

Prakash Sawhney, who has signed, verified and instituted the

plaint, has been authorized to initiate legal proceedings on behalf

of the plaintiff. Certified copies of Certificate of

Incorporation/Fresh Certificate of Incorporation of defendant are

Ex. PW1/2 and Ex. PW1/3. PW1 has categorically stated that

defendant had approached the plaintiff at Delhi and requested for

supply of goods manufactured by the plaintiff, which were

supplied to the defendant from time to time through invoices. He

has further deposed that the statement of account was maintained

by the plaintiff in respect of the supplies and payments received.

Certified copy of the statement of account for the period 1st April,

1999 to 19th June, 2007 is Ex. PW1/4. Carbon copies of the

invoices have been proved as Ex. PW1/5 to Ex. PW1/19. C-Forms

issued by the defendant in respect of the invoices dated 13th June,

2005 and 16th June, 2005 for `6,29,059/- (Rupees Six Lacs Twenty

Nine Thousand Fifty Nine Only) each have been proved as Ex.

PW1/20 to Ex. PW1/24. Photocopy of telegram has been proved

as Ex. PW1/25 and original receipt issued by the post office in

respect of the telegram has been proved as Ex. PW1/26. PW1 has

categorically deposed that defendant is liable to pay

`28,35,430.64/- (Rupees Twenty Eight Lacs Thirty Five

Thousand Four Hundred Thirty and Sixty Four Paise Only) to the

plaintiff, that is, `17,39,528/- towards outstanding balance and

`10,95,902.64 towards interest @ 21% per annum. Testimony of

PW1 is duly supported by the documents, inasmuch as, has

remained unshattered in his cross-examination.

7. Counsel for the plaintiff, to avoid any objection about the

limitation, has fairly contended that he is not pressing for decree

for suit amount based on the statement of account. He has pressed

for recovery of amounts involved in the two bills dated 13th June,

2005 and 16th June, 2005 for `6,29,059/- (Rupees Six Lacs Twenty

Nine Thousand Fifty Nine Only) each (Ex. PW1/18 and Ex.

PW1/19). Ex. PW1/24 is the C-Form issued by the defendant in

respect of this very supply which also confirms that the goods were

supplied through these two invoices. Thus, plaintiff has proved

that a sum of `12,58,118/- (Rupees Twelve Lacs Fifty Eight

Thousand One Hundred Eighteen Only) had remained due qua

these two bills, which defendant has failed to pay.

8. The present plaint has been filed on 1st July, 2008 vide diary

No. 926333. High Court remained closed for summer vacation

from Monday, 2nd June, 2008 to Monday, 30th June, 2008 (both

days inclusive) in terms of notification No.626/Estt/EI/DHC dated

26.5.2008. The limitation to file the present suit, if taken in

respect of 1st invoice dated 13th June, 2005, came to expire on 12th

June, 2008 and in respect of 2nd invoice dated 16th June, 2005,

came to expire on 15th June, 2008. Section 4 of The Limitation

Act, 1963 envisages that if prescribed period for any suit, appeal or

application expires on a day when the court is closed, the suit,

appeal or application may be instituted, preferred or made on the

day when the court reopens. Thus, this suit, filed on the reopening

of the court, is well within the period of limitation.

9. As regards interest, in my view, if ordered to be paid @ 12%

per annum with effect from 16th June, 2005 till the entire amount is

paid by the defendant, will suffice.

10. In the light of the above discussions, I pass a decree for

`12,58,118/- (Rupees Twelve Lacs Fifty Eight Thousand One

Hundred Eighteen Only) together with interest @ 12% per annum

with effect from 16th June, 2005 till the realization of the decretal

amount. Cost of the suit is also awarded to the plaintiff.

11. Decree sheet be drawn accordingly.

A.K. PATHAK, J NOVEMBER 24, 2011 rb