Delhi High Court
M/S Ambey Maa Saree & Ors vs Chhabra 484 Express on 28 February, 2012
Author: G. S. Sistani
47 $~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1340/2010
% Judgment dated 28.02.2012
M/S AMBEY MAA SAREE & ORS ..... Plaintiff
Through: Mr.Arun Singh and Mr.Vijay Jakhwal,
Advocates
versus
CHHABRA 484 EXPRESS ..... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1.
The present suit has been filed by the plaintiffs for recovery of money of
Rs.78,84,906/- against the defendant.
2. Summons were issued in the suit. The plaintiffs made numerous attempts
to serve the defendant and despite such steps being taken, the defendant
remained unserved. As defendant could not be served in the ordinary way,
plaintiff filed an application under Order 5 Rule 20 CPC, which was
allowed by an order dated 05.07.2011. The defendant did not enter
appearance despite service by way of publication in "The Statesman"
(Delhi Edition). By an order dated 05.09.2011, the defendant was
proceeded ex parte.
3. Plaintiffs have filed the affidavits by way of evidence of PW-1, Sh.Bimla
Shanker Pandey, proprietor of plaintiff no.1, and PW-2,Smt.Hemlata
Bimal Pandey, proprietor of plaintiff no.2. Both the witnesses have
deposed on the lines of the plaint.
4. In the affidavit, PW-1, Sh.Bimla Shanker Pandey, has deposed that he is
the proprietor of plaintiff no.1 and hence, is well conversant with the facts
of the case. PW-1 has deposed that plaintiff no.2 and he are both engaged
in the wholesale business of sarees since from 23.11.2004 and 19.01.2006
respectively. He has further deposed that the defendant had started
purchasing goods from plaintiff no.2 from 12.06.2006 and thereafter the
business relations started expanding. Initially the relationship between the
plaintiffs and defendant was good and defendant was making the
payments regularly, however, after January, 2007, the defendant stopped
making payments even though the goods were being purchased by the
defendant regularly. On various occasions between 15.1.2007 and
16.6.2007, the defendant made various purchases from plaintiff no.2 and
the total amount due till 16.06.2007 was Rs.55,92,178/-. PW-1 has also
deposed that the orders during this period were placed either by
Mr.Niranjan Chhabra, proprietor of defendant, or Mr.Kamal Chhabra (son
of Mr. Niranjan Chhabra) by travelling to Kolkata to personally verify
the colours, variety, rates and texture of the Sarees. The payments for the
above said purchases were not cleared by the defendant, who had given
assurance that the outstanding amounts would be cleared to the plaintiffs.
On the assurance given by the defendant and also taking into
consideration that the defendant has been in continued business with
them, the plaintiff was convinced that the defendant will make the
aforesaid payments. However, despite such assurance given to the
plaintiff, the defendant has not made any payment to the plaintiff till June,
2007. In the affidavit, PW-1 has extracted the details of following bills,
which remained unpaid to plaintiff no.2:
Sl. Bill No. Date Amount Consigner
No.
1. Amc/569 15/01/07 1,81,637/- Patel Service, 111, Park
Street, Kolkata-16, L. R.
No.980.
2. Amc/603 29/01/07 8,50,856/- Patel Service, 111, Park
Street, Kolkata-16, L. R.
No.2835.
3. Amc/613 08/02/07 7,78,495/- P. Patel Carriers, 168b,
Jamuna Lal Bazaz Street,
(ground floor), Kolkata-07,
Bill No. 936.
4. Amc/683 30/03/07 13,07,685/- P. Patel Carriers, 168b,
Jamuna Lal Bazaz Street,
(ground floor), Kolkata-07,
Bill No.3155.
5 Amc/26 17/4/07 10,59,495/- Krishna Cargo Movers, 115,
Cotton Street, Bara Bazar,
Kolkatta-07, Bill No. 43722.
6. Amc/50 12/05/07 2,22,860/- Krishna Cargo Movers, 115,
Cotton Street, Bara Bazar,
Kolkatta-07, Bill No. 46074.
7. Amc/141 14/06/07 8,01,500/- Krishna Cargo Movers, 115,
Cotton Street, Bara Bazar,
Kolkatta-07, Bill No. 48981.
8 Amc/155 16/06/07 3,89,650/- Krishna Cargo Movers, 115,
Cotton Street, Bara Bazar,
Kolkatta-07, Bill No. 49364.
Total 55,92,178/-
5. PW-1 has further deposed that the defendant also started dealing with
plaintiff no.1 from 30.11.2006 and orders were being placed by the
defendant either through Sh.Niranjan Chabra or Mr.Kamal Chabra,
simultaneously, on both the plaintiffs. He has further deposed that a total
sum of Rs. 29,92,728/- is due and payable by the defendant for the
purchases made during the period 15.1.2007 to 16.6.2007. A list of bills
regarding the purchases made by defendant from plaintiff no.1, as
extracted in the affidavit of PW-1, is as under:
S. No. Bill No. Date Amount(Rs) Consigner
1. Ams/439 16/01/07 10,308/- Patel Service, 111, Park
Street, Kolkata-16, L. R.
No.1033
2. Ams/466 08/02/07 6,48,595/- Krishna Cargo Movers, 115,
Cotton Street, Bara Bazar,
Kolkatta-07, Bill No. 34460
3. Ams/484 31/03/07 8,25,085/- P. Patel Carriers, 168b,
Jamuna Lal Bazar Street,
(ground floor), Kolkata-07,
Bill No. 3248
4. Ams/29 16/06/07 15,08,740/- Krishna Cargo Movers, 115,
Cotton Street, Bara Bazar,
Kolkatta-07, Bill No. 49331
Total 29,92,728/-
6. The original Bills have been filed on record and the same are exhibited as
Ex.PW-1/2, Ex.PW-1/3, Ex.PW-1/4 and Ex.PW-1/5.
7. PW-1, has also deposed that the goods were consigned on the directions
of the defendant. A copy of the receipt LR No.1033 of the consigner
pertaining to services is exhibited as Ex.PW-1/6 to Ex. PW-1/9. At the
repeated requests of the plaintiffs, defendant issued a total 15 cheques in
favour of plaintiff No.2, out of which three cheques were encashed for
Rs.3.0 lacs whereas remaining 12 cheques were dishonoured by the
banker of plaintiff no.2 on account of insufficient fund, details of which
are as under:
S.No. Date of Cheque Amount Deposited Cheque
cheque No. on dishonored
issued on
1 20/06/07 520856 81,637/- 20/06/07 21//06/07
2 15/07/07 560528 1,00,000/- 23/07/07 23/07/07
3 20/07/07 560529 1,00,000/- 24/07/07 24/07/07
4 25/07/07 560530 1,00,000/- 10/08/07 10/08/07
5 15/08/07 520854 1,00,000/- 16/08/07 16/08/07
6 15/08/07 520855 1,00,000/- 16/08/07 16/08/07
7 31/08/07 560535 1,00,000/- 06/12/07 07/12/07
8 05/08/07 560533 78,495/- 07/12/07 08/12/07
9 20/08/07 520857 1,00,000/- 07/12/07 08/12/07
10 20/08/07 520858 1,00,000/- 11/12/07 12/12/07
11 07/09/07 560534 1,50,856/- 24/12/07 24/12/07
12 28/08/07 520860 1,00,000/- 24/12/07 24/12/07
8. PW-1 has also deposed that he three cheques paid or encashed in favour
of the plaintiff No.2 are worth of Rs.3,00,000/- (Rupees three lacs only).
The details of it are as follows :
Table D
S. No. Date Cheque No Amount Remarks
1. 07/07/07 560526 1,00,000/- Paid
2. 15/07/07 560527 1,00,000/- Paid
3. 06/12/07 560859 1,00,000/- Paid
Total 3,00,000/-
9. Sh.Bimla Shankar Pandey, has stated that the outstanding amount yet to
be paid by the defendant is of Rs.52, 92,178/- (i.e. Rs.55,92,178 -
Rs.3,00,000 = Rs. 52,92,178) against plaintiff No.2. It is also deposed
that similarly the defendant has also issued 7 cheques in favour of the
plaintiff No. 1, out of which only three cheques were encashed. The list
consisting the details of the encashed cheques with dates are as follows :
Table E
S. No. Date Amount Remarks
1. 07/06/07 1,00,000/- Paid
2. 25/06/07 1,00,000/- Paid
3. 30/08/07 2,00,000/- Paid
Total 4,00,000/-
10. PW-1 has further deposed that the three cheques paid in favour of the
plaintiff no.1 are worth of Rs.4,00,000/- (Rupees four lacs only), thus the
outstanding amount yet to be paid by the defendant is of Rs.25,92,728
(i.e. Rs.29,92,728 - Rs.4,00,000 = Rs.25,92,728); and the total net
outstanding of the defendant against plaintiff no.1 and plaintiff no.2 added
together amounts to Rs.78,84,906/- (Rupees seventy eight lacs, eighty
four thousand nine hundred and six only) after subtracting the cheques
received and encashed.
11. Sh.Bimla Shankar Pandey has also deposed that the cheques being
dishonored by the banker of plaintiffs i.e. Axis Bank, Kolkata were
returned to the plaintiff no. 1 and plaintiff no.2 because of "Funds not
arranged for" which means that there were insufficient funds in the bank
of the drawer. In addition to this, a huge amount of Rs.78,84,906/-
(Rupees seventy eight lacs, eighty four thousand nine hundred and six
only) is pending towards the defendant since 16.06.2007, which the
defendant is not intending to pay even after repeated requests being made
by the plaintiffs.
12. PW-1 has also deposed that reposing their trust on account of good
business relations between the parties did not at the outset initiate legal
proceedings against the defendant, however, when all efforts at securing
the payment from the defendant failed, the plaintiffs had no other option
but to approach this Court for seeking justice. The plaintiffs sent legal
notice dated 10.06.2010 to the defendant through their advocates calling
upon the defendant to clear the accounts and pay back the amount of
Rs.25,92,728/- to the plaintiff no.1 and Rs.52,92,178/- to the plaintiff
no.2. No reply even to the legal notice has been received by the plaintiffs
or their counsel. Copy of the legal notices along with its
acknowledgement and the postal receipt, are exhibited as Ex.PW-1/10.
13. Sh.Bimla Shankar Pandey, has further deposed that the plaintiffs have
always been working in good faith and trusted the defendant but the
defendant failed to make the payment even after repeated requests of the
plaintiffs via telephone as well as personal visits. The defendant always
assured the plaintiffs that he will make the payments soon, but when the
defendant failed to make the payments even after six months i.e. till June
2007 and the cheques given were dishonored by the bank, the plaintiffs
decided to stop dealing with the defendant and also decided that they
would not transport any goods to the defendant in future. The plaintiffs
waited for the payments for nearly 34 months but still the defendant failed
to make the payments and thus the plaintiffs had no other option then to
come before this Court to seek justice.
14. In support of their case, affidavit of Ms.Hemlata Bimla Pandey (Ex.PW-
2) has also been filed, which is exhibited as Ex. PW-2/A. PW-2 has
deposed that she is the proprietor of plaintiff no.2; and plaintiff no.1, i.e.
M/s.Ambey Maa Saree is running its business at 8/2, Jagmohan Malik
Lane, Duggar Katra, 2nd Floor, Kolkata-700007; and the plaintiff No.2,
i.e. M/s.Ambey Maa Creation is running its business at 82/C, Burtolla
Street, 1st Floor, Kolkata-700007. Both the plaintiffs are engaged in the
wholesale business of sarees since 23.11.2004 and 19.01.2006
respectively.
15. Ms.Hemlata Bimla Pandey has further deposed that the defendant
M/s.Chhabra 484 Express is a customer of plaintiffs and is running his
business under the proprietorship of Mr.Niranjan Chhabra at 484, Katra
Asharfi, Chandni Chowk, Delhi-110006; and plaintiff no.1 is running its
business under proprietorship of Sh.Bimla Shanker Pandey and plaintiff
No.2 is running its business under her proprietorship. Plaintiffs are
pursuing this business legally and have trade license issued by the Kolkata
Municipal Corporation for the same. The Certificate of Enlistment of
plaintiff no.2 is exhibited as Ex.PW-2/1.
16. PW-2 has deposed that though plaintiff no.1 and plaintiff no.2 are two
separate entities having different proprietors, but the business is run solely
by Mr.Bimla Shankar Pandey. Thus, all the business transactions are done
by the Mr.Bimla Shankar Pandey on behalf of plaintiff no. 1 and Plaintiff
no.2; and the defendant being in the same business once turned to plaintiff
No.2 and being satisfied by the variety and the rates of the goods, started
purchasing goods from plaintiff No.2 from dated 12.06.2006, and the
business relations started flourishing, slowly and stealthily. The relations
were going smoothly and payments were coming regularly from the
defendant, but the defendant stopped making payments from January
2007, though he regularly came for purchases. At various occasions
between 15.01.2007 till 16.6.2007 the defendant has made purchases from
the plaintiff No.2. The total amount raised by the defendant till
16.06.2007 was of Rs.55,92,178/- (Rupees fifty five lakhs ninety two
thousand one hundred and sevety eight only). These orders were placed
either by Mr.Niranjan Chhabra or Mr.Kamal Chhabra (son of Mr.
Niranjan Chhabra) by coming down to Kolkata and after personally
verifying the colours, variety, rates and texture of the sarees, but the
payment was not given for these purchases. The defendant assured that he
will make the payment by cheque and being in continued business with
the defendant and seeing his regularity of payment, the plaintiff No.2 was
convinced that the defendant will make the payments, but no amount was
paid till June 2007. The list of all the bills regarding the purchases from
plaintiff No.2 along with bill number, date and amount have also been
extracted in the affidavit.
17. Copy of the original Bill No. AMC/569 dated 15.01.2007 from plaintiff
No.2 is exhibited as Ex.PW-2/2. Copy of the original Bill No.AMC/603
dated 29.01.2007 from plaintiff No.2 is exhibited as Ex.PW-2/3. Copy of
the original Bill No.AMC/613 dated 08.02.2007 from plaintiff No.2 is
exhibited as Ex.PW-2/4. Copy of the original Bill No.AMC/683 dated
30.03.2007 from plaintiff No.2 is exhibited as Ex.PW-2/5. Copy of the
original Bill No.AMC/26 dated 17.04.2007 from plaintiff No.2 is
exhibited as Ex.PW-2/6. Copy of the original Bill No.AMC/50 dated
12.05.2007 from plaintiff No.2 is exhibited as Ex.PW-2/7. Copy of the
original Bill No.AMC/141 dated 14.06.2007 from plaintiff No.2 is
exhibited as Ex.PW-2/8. Copy of the original Bill No.AMC/155 dated
16.06.2007 from plaintiff No.2 is exhibited as Ex.PW-2/9.
18. Ms. Hemlata Bimla Pandey has further deposed that the defendant has
made no payment for the above mentioned bills which were raised
between 15.01.2007 to 16.06.2007. The defendant assured that he will
make the payment soon and being in continued business with the
defendant and seeing the regularity of payment, plaintiff no.1 and plaintiff
no.2 being run by same person was convinced that defendant will make
the payments, but no amount was paid till June 2007. However, these
goods were transported by various consigners of Kolkata; and these
consigners were responsible to deliver the goods to the defendant. This
being a normal practice in wholesale business all over, both parties were
clear about these terms of transport and were agreed for the same; and all
these terms are based on the general market principles and mutual trust
whereby no written agreement is required; and accordingly the cost of
transportation is included in the bills raised by the defendant. Plaintiff
no.1 and plaintiff no.2 have with due diligence and necessary care
loaded the goods ordered by the defendant through various consigners on
the same day when the orders are placed. The names of the consigner are
mentioned above in Table A and Table B respectively. Copy of the
receipt LR No.980 of the consigner M/s.Patel Services is exhibited as
Ex.PW-2/10. Copy of the receipt LR No.2835 of the consigner M/sPatel
Services is exhibited as Ex.PW-2/11. Copy of the receipt Bill No.936 of
the consigner M/s.P.Patel Carriers is exhibited as Ex.PW-2/12. Copy of
the receipt Bill No.3155 of the consigner M/s.P. Patel Carriers is exhibited
as Ex.PW-2/13. Copy of the receipt Bill No.43722 of the consigner
M/s.Krishna Cargo Movers is exhibited as Ex.PW-2/14. Copy of the
receipt Bill No.46074 of the consigner M/s.Krishna Cargo Movers is
exhibited as Ex.PW-2/15. Copy of the receipt Bill No.48981 of the
consigner M/s.Krishna Cargo Movers is exhibited as Ex.PW-2/16. Copy
of the receipt Bill No.49364 of the consigner M/s.Krishna Cargo Movers
is exhibited as Ex.PW-2/17.
19. PW-2 has further deposed that after receiving the goods the defendant
also informed the plaintiffs about the confirmation of receiving the goods
via telephone and has also confirmed that the goods received by the
defendant are the same, which were ordered by him.
20. Ms.Hemlata Bimla Pandey has deposed that since the defendant failed to
repay for six months, plaintiff no. 1 and plaintiff no.2 were worried for the
huge outstanding payment becoming due and asked the defendant
verbally for repayment or else the plaintiffs would not continue further
business with the defendant. The defendant on repeated requests made by
the plaintiffs issued number of cheques to the plaintiffs. Defendant issued
a total 15 cheques in favour of plaintiff No.2, of various dates out of
which, only 3 cheques in favour of plaintiff No.2 were encashed, whereas
all the other 12 cheques were bounced/ rejected and returned by the
banker of the plaintiff No.2 i.e. Axis Bank, Kolkata. The list consisting of
details of the cheques which were dishonored by the respective bank have
been extracted in the affidavit.
21. The three cheques paid or encashed in favour of the plaintiff No.2 are
worth Rs.3,00,000/- (Rupees three lacs only). The details of which have
also been extracted in the affidavit.
22. Ms.Hemlata Bimla Pandey has also deposed that the outstanding amount
yet to be paid by the defendant is of Rs.52,92,178/- (i.e. Rs.55,92,178 -
Rs.3,00,000 = Rs.52,92,178) against plaintiff No.2. Copies of all the
cheques issued and dishonored are collectively exhibited as Ex.PW-2/18.
Defendant has also issued 7 cheques in favour of the plaintiff No. 1, out of
which only three cheques were encashed. The list consisting the details of
the encashed cheques with dates have been extracted in the affidavit.
23. Ms.Hemlata Bimla Pandey has also deposed that the three cheques paid in
favour of the plaintiff no.1 are worth of Rs.4,00,000/- (Rupees four lacs
only), thus the outstanding amount yet to be paid by the defendant is of
Rs.25,92,728 ( i.e. Rs.29,92,728 - Rs.4,00,000 = Rs. 25,92,728 ).
24. PW-2 has also deposed that the total net outstanding of the defendant
against plaintiff no.1 and plaintiff no.2 added together amounts to
Rs.78,84,906/- (Rupees seventy eight lacs, eighty four thousand nine
hundred and six only) after subtracting the cheques received and
encashed. It is also deposed by this witness that the cheques being
dishonored by the banker of plaintiffs i.e. Axis Bank, Kolkata were
returned to the plaintiff no.1 and plaintiff no.2 because of "Funds not
arranged for" which means that there were insufficient funds in the bank
of drawer. In addition to this, a huge amount of Rs.78,84,906/- (Rupees
seventy eight lacs, eighty four thousand nine hundred and six only) is
pending towards the defendant since 16.06.2007, which the defendant is
not intending to pay even after repeated requests being made by the
plaintiffs. The statement issued by Axis Bank, Kolkata i.e. Banker of the
plaintiffs in which the cheques were placed is exhibited as Ex.PW-2/19.
25. PW-2 has also deposed that reposing their trust on account of good
business relations between the parties did not at the outset initiate legal
proceedings against the defendant, however, when all efforts at securing
the payment from the defendant failed, the plaintiffs had no other option
but to approach this Court for seeking justice. It is also deposed that the
plaintiffs sent legal notice dated 10.06.2010 to the defendant through their
advocates calling upon the defendant to clear the accounts and pay back
the amount of Rs.25,92,728/- to the plaintiff no.1 and Rs.52,92,178/- to
the plaintiff no.2. No reply even to the legal notice has been received by
the plaintiffs or their counsel. Copy of the legal notices along with its
acknowledgement and the postal receipt is exhibited as Ex.PW-2/20.
26. I have heard counsel for the plaintiffs and perused the plaint, application
and accompanying documents. Both the witnesses have deposed on
similar lines. The plaintiffs have been able to establish that they were
carrying on business with the defendant and that various purchase orders
were placed by the defendant on the plaintiffs up to 16.06.2007. The
original bills raised by the plaintiffs against the goods supplied to the
defendant have been exhibited as Ex.PW-1/2 to Ex.PW-1/5 and Ex.PW-
2/2 to Ex.PW-2/9 respectively. The plaintiffs have also placed on record
copies of the LR No.1033 and LR No.908 of the consigners pertaining to
services, exhibited as Ex.PW-1/6 to Ex.PW-1/9 and Ex.PW-2/10 to
Ex.PW-2/17 respectively. The plaintiffs have also placed on record the
copies of all the cheques issued i.e. Ex.P:W-2/18, along with the
statement issued by Axis Bank, Kolkata i.e. the Banker of the plaintiffs in
which the cheques were placed, exhibited as Ex.PW-2/19. The evidence
led by the plaintiffs remain unrebutted. Accordingly, the suit is decreed in
favour of the plaintiffs and against the defendant in the sum of
Rs.78,84,906/- with interest @12% per annum from the date of filing of
the suit till realization with costs. Let a decree sheet be drawn up
accordingly.
G.S.SISTANI,J
FEBRUARY 28, 2012
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