Delhi High Court
Birla Textile Mills vs Ashoka Enterprises & Ors. on 6 July, 2012
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1857/1998 and IA No.1337/2010
BIRLA TEXTILE MILLS ..... Plaintiff
Through: Mr. Amit Sibal, Ms. Priyanka
Kalra and Mr. Anirban Sen,
Advocates
versus
ASHOKA ENTERPRISES & ORS. ..... Defendants
Through: Defendants are ex parte.
% Date of Decision : July 06, 2012
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. The plaintiff has filed the abovementioned suit against the
defendants praying, inter alia, for a decree of recovery of `
46,16,945/- (Rupees Forty Six Lacs Sixteen Thousand Nine Hundred
and Forty Five Only) with costs of the suit and future interest @ 24%
per annum from the date of the institution of the suit, i.e., from
28.08.1998 until realisation.
2. The plaintiff is a partnership firm engaged in the business of
manufacture and sale of yarn and is duly registered under the Indian
Partnership Act at Calcutta with the Registrar of Firms.
3. The defendant No.1 firm had been purchasing cotton yarn from
the plaintiff firm at Delhi for the last 12-13 years prior to the
institution of the suit. The amount of bills raised on the defendant
No.1 were payable within seven days therefrom, failing which interest
on overdue payment was also liable to be paid @ 24% per annum
according to agreement, market usage and law.
4. It is the case of the plaintiff that the plaintiff firm maintains
regular Books of Accounts in which there is an account of the
defendants. Bills raised on the defendants for purchases made and
bills/debit notes raised for interest on overdue payments were duly
debited to the account of the defendants and payments made were
duly credited. It is also the case of the plaintiff that the defendants
had been paying interest on overdue payments all through their
dealings with the plaintiff firm. Further, all the bills raised on the
defendants for the purchase of yarn prior to 09.01.1996 were paid for.
Only the bills as per the details given in the plaint remain outstanding
and the amounts thereof totalling ` 33,25,896/- (Rupees Thirty Three
Lacs Twenty Five Thousand Eight Hundred and Ninety Six Only)
remain due to the plaintiff from the defendants. The defendants are
also liable to pay interest on account of late payment of the bills
referred to in the plaint in respect of which debit notes were raised on
the defendants as per details given in the plaint. The total amount
claimed for interest on account of late payment of bills is ` 93,726/-.
The defendants are further liable to pay ` 11,97,323/- as interest on
the amount of ` 33,25,896/- @ 24% per annum as per agreement,
market usage and law. Thus, a sum of ` 46,16,945/- is payable to the
plaintiff by the defendants with costs of the suit and future interest @
24% per annum.
5. On service of summons of the suit on the defendants through
substituted service by publication, the defendant No.2 - Mr. Vinod
Aggarwal arrayed as proprietor of the defendant No.1 - M/s. Ashoka
Enterprises - under which trade name he had been carrying on the
business in yarn with the plaintiff, filed written statement. In the said
written statement, apart from other objections taken by the defendant
No.2, the main defence raised was that there was no privity of contract
between the plaintiff and the defendant No.2. The defendant No.2
contended that he is not and never was the sole proprietor of defendant
No.1. According to the defendant No.2, the firm M/s. Ashoka
Enterprises does not belong to him. He had never received any
supplies and, therefore, there was no question of making any payment
to the plaintiff.
6. On the basis of the aforesaid pleadings, the following issues
were framed on 27th October, 2005:-
"1) Whether the plaintiff is a partnership
firm duly registered under the
Partnership Act and Mr. R.K. Aggarwal,
who has signed and verified the plaint, is
competent to do so? OPP
2) Whether there is privity of contract
between the plaintiff and the defendants,
as mentioned in the preliminary
objection no.1? OPP
3) Whether the plaintiff is entitled to the
amount claimed in the suit? OPP
4) Whether the plaintiff is entitled to
interest? If so, at what rate? OPP
5) Relief."
7. The plaintiff examined its witness Mr. R.K. Aggarwal as PW1
and the defendant No.2 Mr. Vinod Aggarwal appeared in the witness
box as DW1 in support of his defence. The learned Single Judge by
his judgment and order dated May 16, 2006 held that the plaintiff had
failed to prove that the defendant No.2 was the sole proprietor of the
defendant No.1; there was no privity of contract between the plaintiff
and the defendants; and hence the suit against the defendant No.1 was
liable to fail. The suit was accordingly dismissed in view of the
findings rendered by the learned Single Judge on Issue No.2.
8. At this juncture, in a separate proceeding in connection with the
re-allocation of industrial units outside Delhi, the business of the
plaintiff was ordered to be shut down under the orders of the Hon‟ble
Supreme Court and subsequently the works were re-allocated to Baddi
(H.P.). In view of the findings of this Court and consequent dismissal
of the suit, efforts were made to trace the records to determine the
actual proprietor of the defendant No.1 firm. Ultimately, the plaintiff
discovered some counterfoils of ST-1 Forms issued by the Sales Tax
Authorities to M/s. Ashoka Enterprises (the defendant No.1) for
onward transmission to the plaintiff and it was revealed that the actual
proprietor of the firm was Mrs. Beena Aggarwal, wife of Mr. Vinod
Aggarwal, the defendant No.2.
9. On discovery that the actual proprietor of defendant No.1 is the
wife of Mr. Vinod Aggarwal, namely, Mrs. Beena Aggarwal, the
plaintiff challenged the judgment and order of the learned Single
Judge dated 16.05.2006 before the Division Bench of this Court in
RFA(OS) No.95/2006 and filed along with the appeal an application
for impleadment of Mrs. Beena Aggarwal and amendment of the
plaint by substituting the name of Mrs. Beena Aggarwal as the
proprietor of the proprietorship concern in place of Mr. Vinod
Aggarwal.
10. By its order dated September 12, 2008, the Division Bench
allowed the impleadment of Mrs. Beena Aggarwal in the capacity of
defendant No.3, being a proper and necessary party and the
consequent amendment of the plaint.
11. Thereafter, the Division Bench by its order dated 08.12.2009
remanded the matter to the Original Side of this Court, observing that
as a sequel to the judgment dated 12.09.2008, Suit No.1857/1998
stood revived. The appellant (the plaintiff) was directed to file
certified copies of the amended plaint, written statement to it, as well
as the replication, i.e., the pleadings that had been filed in the appeal
on the file of Suit No.1857/1998, i.e., the present suit.
12. After the remand of the instant suit to the learned Single Judge,
the defendant No.3, who had till date not entered appearance despite
service of notice upon her in the Appeal, was again sought to be
served at the address of the defendant Nos.1 and 2 at 319, Kucha
Ghasi Ram, Chandni Chowk, Delhi, but having evaded service was
served by way of publication. Despite service by publication on the
defendants No.1 to 3, however, none of the defendants appeared in the
ongoing proceedings in the suit. Therefore, by order dated October
07, 2010, defendant No.3 was proceeded ex parte and by order dated
12.12.2011 defendants No.1 and 2 were also proceeded ex parte.
13. Subsequent to the remand of the suit, the plaintiff filed an
additional affidavit by way of evidence and additional documents
including the copy of the Electoral Roll of the defendants No.2 and 3
to indicate that Smt. Beena Aggarwal (the defendant No.3) is the wife
of Shri Vinod Aggarwal (the defendant No.2) and resides with all the
family members at the given address of 319, Kucha Ghasi Ram,
Chandni Chowk, Delhi and the business of the proprietorship concern
(the defendant No.1) is also carried on from the said address.
14. The Court has heard Mr. Amit Sibal, the learned counsel for the
plaintiff and with his assistance gone through the evidence on record,
including the documentary evidence. Issue-wise findings of the Court
are recorded below.
15. ISSUE No.1
"Whether the plaintiff is a partnership firm
duly registered under the Partnership Act and
Mr. R.K. Aggarwal, who has signed and
verified the plaint, is competent to do so?
OPP"
16. In order to prove this issue, the plaintiff has placed on record
certified copy of the certificate of Registration of the Firm, duly
registered by the Registrar of Firms at Calcutta as Ex.P1 and a copy of
Power of Attorney in favour of Mr. R.K. Aggarwal as Ex.P2. There is
no cross-examination of PW1 on this aspect. This issue is accordingly
decided in favour of the plaintiff and against the defendants.
17. ISSUE No.2
"Whether there is privity of contract between
the plaintiff and the defendants, as mentioned in
the preliminary objection no.1? OPP"
18. As noted above, on account of the finding rendered by the
learned Single Judge that the plaintiff had failed to prove that the
defendant No.2 was the sole proprietor of the defendant No.1, the suit
against the defendant No.1 had been dismissed by the learned Single
Judge by his order dated May 16, 2006. Subsequently, the plaintiff
was permitted to amend the plaint by the orders of the Division Bench
dated 12th September, 2008 passed in RFA(OS) No.95/2006. No
written statement to the amended plaint has been filed by the
defendant No.3, who had been newly added, to counter the averment
of the plaintiff that the defendant No.3 was a sole proprietor of the
defendant No.1 firm. In the written statement of the defendant No.2
to the amended plaint filed before the Division Bench, however, an
objection was raised by the defendant No.2 that a fresh suit for
recovery of money against the defendant No.3 was barred by
limitation in view of the provisions of Sub-Rule 5 of Order I Rule 10,
which read as under:-
"Subject to the provisions of the Indian
Limitation Act, 1877 (15 of 1877), Section 22,
the proceedings as against any person added as
defendant shall be deemed to have begun only
on the service of the summons."
19. The case of the plaintiff, on the other hand, is that the Proviso to
Section 21 of the Limitation Act, 1963 stipulates that where a Court is
satisfied that the omission to include the defendant is due to a mistake
made in good faith, it may direct that the suit as regards such
defendant shall be deemed to have been instituted on an earlier date.
20. To be noted at this juncture that the Division Bench while
allowing the plaintiff‟s application for adding the defendant No.3 as a
party defendant to the suit and dealing with the issue of limitation
raised by the defendant No.2 made the following pertinent
observations:-
"15. As far as the issue of limitation is
concerned, we are of the opinion that this plea
is certainly available to the newly proposed
Defendant No.3. However, as mentioned
above, if the Appellant's version in the
amendment application is taken as true, then by
virtue of Proviso to Section 21 of the Limitation
Act, the suit as regard to the new defendant
could be deemed to have been instituted on an
earlier date. In our opinion, the issue of
limitation in the present case is a mixed
question of fact and law and the same would
have to be decided at the stage of final
determination of the present appeal."
21. On the aforesaid aspect of the matter, Mr. Amit Sibal, the
learned counsel for the plaintiff contended that the original suit for
recovery was filed within the period prescribed under the provisions
of the Limitation Act. On the suit being dismissed on the limited issue
of „privity of contract‟, at the first instance of the discovery of the fact
that the defendant No.2 was not the proprietor of the proprietorship
concern and the real proprietor was the wife of the defendant No.3,
Mrs. Beena Aggarwal, the plaintiff challenged the order dated
16.05.2006 before the Division Bench in RFA(OS) No.95/2006 and
filed an application for amendment of the plaint by impleadment of
the defendant No.3. The amendment to the plaint was purely formal
and did not alter the cause of action on the basis of which the real lis
was raised and the suit was filed. In such circumstances, the Proviso
to Section 21 of the Limitation Act, 1963 would be squarely
applicable in the instant case, as the omission to include defendant
No.3 was due to bonafide mistake by the plaintiff.
22. In order to substantiate his aforesaid contention, Mr. Sibal
placed reliance on a judgment of the Kerala High Court in
Gopalakrishnan Chettiar and Anr. vs. Annamma Devassye and Ors.,
AIR 1991 Kerala 72 and of the Supreme Court in Karuppaswamy and
Ors. vs. C. Ramamurthy, (1993) 4 SCC 41. The facts in the case of
Gopalakrishnan Chettiar (supra) relied upon by Mr. Sibal are
identical with the facts in the present case. In the said case, a suit for
damages was filed against the proprietor and employees of a photo
studio. One of the employees was impleaded as the proprietor of the
studio and later the real proprietor was impleaded by way of
amendment. The Court opined that there was no omission in
impleading the proprietor, but only a bonafide mis-description, which
was subsequently rectified. In the circumstances, under the Proviso to
Section 21 of the Act, the Court held that it has power, if it is satisfied
that the omission to include a new plaintiff or defendant was due to a
mistake made in good faith, to direct that the suit as regards such
plaintiff or defendant shall be deemed to have been instituted on an
earlier date.
23. The Supreme Court in Karuppaswamy's case (supra) had
examined the provisions of Section 21 of the Limitation Act, 1963 in
juxtaposition with the provisions of Section 22 of the Indian
Limitation Act, 1908. For the facility of ready reference, the said
provisions are reproduced hereunder:-
Section 22 of Limitation Act, 1908
"Effect of substituting or adding new plaintiff
on defendant.- Where, after the institution of a
suit, a new plaintiff or defendant is substituted
or added, the suit shall, as regards him, be
deemed to have been instituted when he was so
made a party.
(2) Nothing in Sub-section (1) shall apply to a
case where a party is added or substituted
owing to an assignment or devolution of any
interest during the pendency of a suit or where
a plaintiff is made a defendant or a defendant is
made a plaintiff."
Section 21 of Limitation Act, 1963
"Effect of substituting or adding new plaintiff
or defendant.-
(1) Where after the institution of a suit, a
new plaintiff or defendant is substituted or
added, the suit shall, as regards him, be
deemed to have been instituted when he was so
made a party:
Provided that where the court is
satisfied that the omission to include a new
plaintiff or defendant was due to a mistake
made in good faith it may direct that the suit
as regards such plaintiff or defendant shall be
deemed to have been instituted on any earlier
date.
(2) Nothing in sub-section (1) shall apply to
a case where a party is added or substituted
owing to assignment or devolution of any
interest during the pendency of a suit or where
a plaintiff is made a defendant or a defendant is
made a plaintiff."
24. In Karuppaswamy (supra), the question which arose was
whether a suit filed against a dead person is non est and whether that
dead person impleaded could be substituted by his heirs and legal
representatives or they could be added as parties to the suit. On
examination of the sweep of the relevant provisions of the Act
governing the subject, unamended and amended, the Supreme Court
concluded as follows:-
"4. A comparative reading of the proviso to
sub-section (1) shows that its addition has
made all the difference. It is also clear that the
proviso has appeared to permit correction of
errors which have been committed due to a
mistake made in good faith but only when the
court permits correction of such mistake. In
that event its effect is not to begin from the
date on which the application for the purpose
was made, or from the date of permission but
from the date of the suit, deeming it to have
been correctly instituted on an earlier date
than the date of making the application. The
proviso to sub-section (1) of Section 21 of the
Act is obviously in line with the spirit and
thought of some other provisions in Part III of
the Act such as Section 14 providing exclusion
of time of proceeding bona fide in court without
jurisdiction, when computing the period of
limitation for any suit, and Section 17(1)
providing a different period of Limitation
starting when discovering a fraud or mistake
instead of the commission of fraud or mistake.
While invoking the beneficient proviso to sub-
section (1) of Section 21 of the Act an averment
that a mistake was made in good faith by
impleading a dead defendant in the suit should
be made and the court must on proof be
satisfied that the motion to include the right
defendant by substitution or addition was just
and proper, the mistake having occurred in
good faith. The court's satisfaction alone
breathes life in the suit."
25. It is the contention of Mr. Sibal that in the present case, the
defendant No.2 - Mr. Vinod Aggarwal was arrayed by the plaintiff as
the sole proprietor of the defendant No.1, M/s. Ashoka Enterprises in
view of the fact that the defendant No.2 was conducting the day-to-
day affairs of the the defendant No.1 and had regular business
dealings with the plaintiff and its officials spread over a span of 12 to
13 years. In these circumstances, since Mr. Vinod Aggarwal through
his acts and conduct had all along represented and held himself out to
be the proprietor of the defendant No.1 M/s. Ashoka Enterprises, the
plaintiff had no reason to believe that Mr. Vinod Aggarwal was not
the proprietor of the said proprietorship concern. The factum of Mr.
Vinod Aggarwal not being a proprietor of the defendant No.1
proprietorship concern was never disclosed to the plaintiff. Thus,
based on a bonafide belief, the plaintiff had impleaded Mr. Vinod
Aggarwal as defendant No.2 in the array of parties, in the capacity of
proprietor of defendant No.1.
26. Mr. Sibal highlighted that since the very beginning, i.e., from
the time the suit for recovery was filed by the plaintiff, the defendant
No.2 in the context of proprietorship of the defendant No.1 firm had
been trying to mislead the Court, and had even made false statements
in the Court when his evidence was being recorded. Thus, the
defendant No.2 stated in his cross-examination dated 3rd May, 2006
that the name of his wife was "Vani Aggarwal", whereas in fact it is
Beena Aggarwal. Mr. Sibal placed reliance on a copy of the Electoral
Roll to submit that the said document conclusively shows that it is
Smt. Beena Aggarwal who is the wife of Shri Vinod Aggarwal and is
residing with all his other family members at 319, Kucha Ghasi Ram,
Chandni Chowk, Delhi. The defendant No.1 firm also used the same
address and all notices to the defendants Nos.1 to 3 were issued and
sent to the same address.
27. Mr. Sibal further contended that the defendant No.2 was
conscious of the fact that he was deliberately suppressing facts within
his knowledge which he ought to have disclosed to this Court. In the
written statement filed by him in response to the averment that the
defendant No.2 was the proprietor of the defendant No.1
proprietorship concern, he simply denied that he was the proprietor of
the defendant No.1. However, he did not disclose that his wife Smt.
Beena Aggarwal was the actual proprietor of the defendant No.1
proprietorship concern. Thus, the reply given by the defendant No.1
to paragraph 2 of the plaint was evasive and against the mandate
provided in Order VIII Rule 4 of the Code of Civil Procedure, which
requires the defendant to state the precise facts which are within his
knowledge.
28. Having considered the aforesaid contentions of Mr. Sibal, the
Court is of the opinion that the defendant No.2 and the defendant
No.3, who are husband and wife, have acted in concert with one
another to avoid any liability being fastened upon them for the
transactions with the plaintiff for which they owed money to the
plaintiff. The plaintiff bonafide believed the defendant No.2 to be the
sole proprietor of the defendant No.1 firm and on coming to know of
the fact that it was the wife of the defendant No.2 who was in fact the
proprietor, the plaintiff without any delay moved an application for
amendment of the plaint. In such circumstances, the omission to
impleaded defendant No.3 clearly was a bonafide mistake and in such
circumstances the Proviso to Section 21 of the Limitation Act, 1963
(which Proviso did not exist in the Limitation Act of 1908) is squarely
applicable to the facts of the present case. The instant suit, therefore,
must be deemed to have been instituted on the date of the original
institution of the suit and cannot be said to be barred by limitation.
29. Issue No.2 is accordingly answered in the affirmative in favour
of the plaintiff and against the defendants.
30. ISSUE NO.3, ISSUE NO.4 and ISSUE NO.5
"3. Whether the plaintiff is entitled to the
amount claimed in the suit? OPP"
"4. Whether the plaintiff is entitled to
interest? If so, at what rate? OPP"
"5. Relief."
Issue Nos. 3, 4 and 5 are being dealt with together for the sake
of convenience and in order to avoid prolixity.
31. In order to substantiate its case as delineated in the plaint, the
plaintiff adduced the evidence of PW1 Shri R.K. Aggarwal, who, in
addition to the affidavit by way of evidence tendered by him on
20.02.2006 (Ex.PW1/A), relied upon his additional affidavit
Ex.PW1/B and proved on record documents Ex.P1 to Ex.P78. In his
affidavit Ex.PW1/A , PW1 Shri R.K. Aggarwal reiterated the contents
of the plaint and categorically stated that the outstanding bills of the
plaintiff totalling ` 33,25,896/- remained due and payable to the
plaintiff from the defendants. The defendants had made late payment
of the bills referred to in paragraph 7 of the plaint, in respect whereof
the plaintiff firm had raised 15 debit notes for a total sum of `
93,726/- on account of interest for the late payments of the said bills.
Documents Ex.P3 to Ex.P36 were proved on record by the witness,
being invoices/bills for the goods purchased by the defendant No.1
which were debited to the ledger account of the defendant No.1 during
the period intervening 19.01.1996 to 22.03.1996. He also proved on
record documents Ex.P37 to Ex.P49, being carbon copies of the debit
notes raised on the defendant No.1 and debited to their account on
account of interest for late payment of bills/invoices as detailed in the
plaint. The original contracts Ex.P50 to Ex.P61, the list of debit
notes Ex.P62 and the list of unpaid bills Ex.P63, were also proved on
record by the witness. The true copy of the Ledger for the period
01.04.1995 to 31.03.1996 was proved as Ex.P64, the legal notice
issued to the defendants through counsel as Ex.P65, postal receipts as
Ex.P66 and AD Card as Ex.P67.
32. In his additional affidavit by way of evidence (Ex.PW1/B),
PW1 Shri R.K. Aggarwal categorically stated that defendant No.3 was
the proprietor of the defendant No.1 firm. The defendant No.2 Mr.
Vinod Aggarwal was the husband of the defendant No.3, who had
never disclosed the fact that he was not the proprietor of the defendant
No.1 firm during the course of his business dealings with the plaintiff
spread over a span of 12 to 13 years. He stated that in the year 2000
when the plaintiff firm was re-located to Baddi (H.P.), ST-1 Forms
issued by the Sales Tax Authorities to the defendant No.1 for onward
submission to the plaintiff were traced out from which it was revealed
that actually the proprietor of the defendant No.1 firm was Beena
Aggarwal (defendant No.3). The original copies of the said ST-1
Forms at Serial Nos.2JA 020957 to 2JA 020962; 2JA 020968, 2JA
020969, 2JA 020972 and 2JA 020974 were Ex.P68 to Ex.P77. The
copy of the Electoral Roll in which it is clearly mentioned that Smt.
Beena Aggarwal is the wife of Shri Vinod Aggarwal and residing with
him and other family members at 319, Kucha Ghasi Ram, Chandni
Chowk, Delhi was Ex.P78.
33. Although PW1 was extensively cross-examined on his affidavit
by way of evidence tendered by him on 20.02.2006 (Ex.PW1/A),
nothing worthwhile emerged from his said cross-examination to
discredit the testimony of the witness in any manner. The averments
made by him in his additional affidavit by way of evidence
Ex.PW1/B, tendered in evidence by him after the remand of the suit
by the Division Bench to this Court, however remained unchallenged
and unrebutted on record.
34. Subsequent to the remand of the case, no evidence in defence
was adduced by any of the defendants, who, as stated above, were
proceeded ex parte in default of appearance. The inevitable result is
that the testimony of PW1 Shri R.K. Aggarwal must prevail and be
accepted as true and correct.
35. From the aforesaid, it is amply clear that there are three
components to the claim of the plaintiff. The first component relates
to bills raised on the defendants for the purchase of yarn subsequent to
09.01.1996 which have not been paid for. The plaintiff has adduced
evidence to prove the said unpaid bills (Ex.P3 to Ex.P36) and the
amounts outstanding against each of the said bills, totalling
` 33,25,896/-. The details of the said bills are as follows:-
BILL NO. DATE AMOUNT
Rs. P.
1 Cy 3735 19.01.96 2,73,136.00
2 Cy 3834 30.01.96 37,619.00
3 Cy 3892 20.02.96 37,619.00
4 Cy 3898 03.02.96 36,418.00
5 Cy 3904 03.02.96 49,165.00
6 Cy 3905 03.02.96 94,347.00
7 MMY 2795 03.02.96 63,032.00
8 MMY 2796 03.02.96 90,045.00
9 Cy 3920 05.02.96 37,619.00
10 Cy 3954 08.02.96 81,041.00
11 Cy 3962 08.02.96 20,985.00
12 MMY 2860 09.01.96 90,045.00
13 Cy 3976 09.01.96 75,239.00
14 Cy 3977 09.01.96 36,418.00
15 Cy 4039 16.02.96 1,40,470.00
16 Cy 4057 19.02.96 94,048.00
17 Cy 4058 19.02.96 75,638.00
18 MMY 2985 22.02.96 90,045.00
19 MMY 2986 22.02.96 90,045.00
20 Cy 4097 22.02.96 60,028.00
21 Cy 4098 22.02.96 54,027.00
22 Cy 4099 22.02.96 1,23,063.00
23 Cy 4121 24.02.96 1,39,471.00
24 Cy 4141 27.02.96 62,431.00
25 MMY 3081 02.03.96 98,212.00
26 Cy 4184 02.03.96 1,24,862.00
27 Cy 4205 07.03.96 1,12,856.00
28 Cy 4279 14.03.96 2,33,076.00
29 Cy 4284 14.03.96 54,027.00
30 Cy 4306 16.03.96 54,027.00
31 Cy 4307 16.03.96 37,619.00
32 Cy 4319 16.03.96 1,51,276.00
33 Cy 4333 16.03.96 1,96,450.00
34 Cy 4339 18.03.96 1,15,559.00
35 Cy 4385 22.03.96 1,96,938.00
Rs.
33,25,896.00
36. The second component of the claim of the plaintiff pertains to
the interest payable on the aforesaid amount of ` 33,25,896/- (Rupees
Thirty Three Lacs Twenty Five Thousand Eight Hundred and Ninety
Six Only) @ 24% as per agreement, market usage and law. The
following debits notes (Ex.P-37 to Ex.P49) for interest on account of
late payment of the bills referred to hereinabove were raised on the
defendants as per details given hereunder:-
Debit Note Date Amount Relating to items
No. Rs. P referred to in
para 9 of the
plaint.
1 YD 967 5.1.96 3745.00 1&2
2 YD977 8.1.96 7014.00 3 to 8
3 YD991 13.1.96 3137.00 9 to 11
4 YD998 15.1.96 3143.00 12 to 14
5 YD1009 18.1.96 6952.00 15 to 18
6 YD1023 22.1.96 2346.00 19 to 20
7 YD1039 29.1.96 7680.00 21 to 25
8 YD1045 31.1.96 2757.00 26 to 27
9 YD1058 5.2.96 3957.00 28 to 29
10 YD1098 19.2.96 4736.00 30
11 YD1104 20.2.96 4990.00 31
12 YD1129 27.2.96 6865.00 32 & 33
13 YD1146 6.3.96 6471.00 34 to 36
14 YD1172 15.3.96 14744.00 37 to 41
15 YD1181 18.3.96 15361.00 42 to 44
Total Rs. 93,916.00
Less Excess Rs. 190.00
Total due on account of interest for late payment of Bills thus
amounts to ` 93,726/-.
37. The third component of the claim of the plaintiff comprises of
the amounts due to the plaintiff from the defendants on account of late
payment of the bills as borne out from the debit notes (Ex.P50 to
Ex.P61), details whereof are as follows:-
Bill No. Date of Bill Amount Due Date Date of Delay
Rs. P. Payment of No.
of day
1 Cy 3153 4.12.95 56,028.00 11.12.95 4.1.956 23
2 Cy 3234 & 6.12.95 2,09,855.00 13.12.95 4.1.96 21
3 Cy 3236 06.12.95 78,037.00 21.12.95 6.1.96 16
4 Cy 3268 8.12.95 60,028.00 23.12.95 6.1.96 14
5 Cy 3269 8.12.95 1,10,550.00 15.12.95 6.1.96 22
Cy 3271
6 Cy 3293 11.12.95 2,44,223.00 18.12.95 6.1.96 19
Cy 3294
7 Cy 3343 15.12.95 33,617.00 22.12.95 6.01.96 15
8 Cy 3348 16.12.95 71,617.00 23.12.95 6.1.96 14
9 Cy 3349 16.12.95 1,20,057.00 31.12.95 12.1.96 12
10 Cy 3352 16.12.95 98,450.00 23.12.95 12.1.96 20
11 Cy 3361 15.12.95 75,658.00 25.12.95 12.1.96 18
Cy 3367
12 Cy 3384 19.12.95 1,26,363.00 26.12.95 12.1.96 18
13 Cy 3393 20.12.95 1,27,662.00 27.12.95 13.1.96 17
Cy 3394
Cy 3396
14 Cy 3421 22.11.95 22,411.00 29.12.95 13.1.96 15
15 Cy 3360 18.12.95 1,43,212.00 25.12.95 19.1.96 23
16 Cy 2422 22.12.95 1,26,138.00 29.12.95 19.1.96 21
17 3441 23.12.95 76,838.00 7.1.96 19.1.96 12
18 3439 22.12.95 1,85,375.00 30.12.95 19.1.96 20
19 Cy 3477 26.12.95 1,48,463.00 2.1.96 20.1.96 18
20 Cy 3503 28.12.95 56,028.00 4.1.96 20.1.96 16
21 Cy 3445 23.12.95 63,070.00 30.12.95 27.1.96 28
22 Cy 3448 23.12.95 17,109.00 7.1.96 27.1.96 20
23 Cy 3504 28.12.95 2,06,026.00 4.1.96 27.1.96 23
24 Cy 3523 1.1.96 65,718.00 16.1.96 27.1.96 11
25 Cy 3521 1.1.96 2,16,391.00 8.1.96 27.1.96 19
26 Cy 35.67 5.1.96 1,98,295.00 12.1.96 30.1.96 18
35.68
27 Cy 3570 5.1.96 62,351.00 20.1.96 30.1.96 10
28 Cy 3524 1.1.96 2,40,113.00 16.1.96 3.1.96 18
29 Cy 3595 6.2.96 82,042.00 13.1.96 3.2.96 21
30 Cy 3555 3.1.96 2,40,113.00 18.1.96 17.02.96 30
31 Cy 3584 6.1.96 2,05,105.00 13.01.96 19.2.96 37
32 Cy 3581 6.1.96 82,042.00 13.1.96 26.2.96 44
33 Cy 3661 13.1.96 1,84,594.00 20.1.96 26.2.96 37
34 Cy 3586 6.1.96 32,416.00 13.1.96 2.3.96 49
35 Cy 3660 13.1.96 1,08,054.00 20.1.96 2.3.96 42
36 Cy 3662 121.1.96 1,09,295.00 28.1.96 2.3.96 34
37 Cy 3665 13.1.96 2,31,117.00 20.1.96 14.3.96 54
38 Cy 3744 20.1.96 92,847.00 27.1.96 14.3.96 47
39 Cy 3748 20.1.96 1,03,792.00 4.2.96 14.3.96 39
40 Cy 2504 13.1.96 9,0005.00 13.2.96 14.3.96 30
41 Cy 2604 15.1.96 45,023.00 15.2.96 14.3.96 28
42 Cy 3813 to 27.1.96 3,33,768.00 3.2.96 16.3.96 42
43 Cy 3822 29.1.96 1,93,065.00 5.2.96 16.3.96 40
44 Cy 2725 27.1.96 90,045.00 27.2.96 16.3.96 18
38. The plaintiff has also placed on record a chart setting out the
corresponding bill number for each certificate and for the ease of
reference the copy of each Form ST-1 signed by the defendant No.3
Mrs. Beena Aggarwal in the capacity of the proprietor of defendant
No.1, Ashoka Enterprises, which is as follows:-
Sl. Certificate no. For Bills
No.
1. 21 A 020973 3735
2 21 A 020975 3334, 2795, 2796
3 21 A 020976 3962, 3954, 2860, 3905, 3905, 3898,
4 21 A 020977 4205, 4279, 4039
5 21A 020978 4099, 4098, 2986, 2985, 4057, 3920
6 21 A 020979 4333, 3976, 4307, 4306, 4284, 4058
7 21 A 020980 4184, 4141, 4121, 4097, 3081
8 21 A 020981 3977, 4385, 4339, 4319
39. The aforesaid evidence adduced by the plaintiff is unrebutted
and unchallenged on record. The inevitable conclusion is that it must
be held that a sum of ` 33,25,896/- (Rupees Thirty Three Lacs Twenty
Five Thousand Eight Hundred and Ninety Six Only) is due to the
plaintiff from the defendants on account of yarn purchased as per bills
Ex.P3 to Ex.P36; ` 93,726/- (Rupees Ninety Three Thousand Seven
Hundred and Twenty Six Only) on account of debit notes raised
towards interest for late payment of the bill amounts Ex.P37 to Ex.P49
and ` 11,97,323/- (Rupees Eleven Lacs Ninety Seven Thousand three
Hundred and Twenty Three Only) on account of interest upto the date
of filing of the suit on the aforesaid amount of ` 33,25,896/-, i.e., in
all, a total sum of ` 46,16,945/- (Rupees Forty Six Lac Sixteen
Thousand Nine Hundred and Forty Five Only).
40. The suit is therefore decreed by passing a decree in the sum of
Rs. 46,16,945/- (Forty Six Lac Sixteen Thousand Nine Hundred and
Forty Five). Registry is directed to draw up a decree sheet
accordingly.
41. CS(OS) 1857/1998 and IA No. 1337/2010 stand disposed of in
the above terms.
REVA KHETRAPAL
(JUDGE)
JULY 06, 2012
km
