M/S. Ajanta Offset & Packaging ... vs M/S. Head Start Advertising & ...
2013 Latest Caselaw 1698 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS (OS) 453/2005

                                           Date of Decision: 15.04.2013

M/S. AJANTA OFFSET & PACKAGING LTD.
                                  ...... PLAINTIFF

                            Through:     Mr. Sudhir K.Makkar, Adv.
                                         with Mr. Nitish Kumar, Adv.


                                  Versus



M/S. HEAD START ADVERTISING & MARKETING (P) LTD.
                                 ...... DEFENDANT

                            Through:     Mr.Sanjeev Anand, Adv. with
                                         Ms. Anubha, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. The plaintiff has filed this suit for recovery of Rs. 20,35,213/-

with interest @ 21% p.a. from the defendant. There does not appear to

be any serious contest on behalf of the defendant. The admitted facts

of case are that the defendant and the plaintiff had been having

business dealings. The plaintiff is engaged in the business of printing

and other allied services such as scanning, processing etc. The plaintiff

has averred that it is rendering different kinds of specialized services

through its different divisions, including that of M/s. Chromocom

Colorgraphics and A.P.T.C. The defendant has availed the different

services from the plaintiff directly as also through its aforesaid

divisions. The details of those services, which are not disputed by the

defendant, are given in para 4 of the plaint. The plaintiff has set up the

claim of recovery as outstanding of Rs. 4,34,111.98/- to itself, Rs.

7,68,663/- and Rs. 91,456/- to its divisions M/s. Chromocom

Colorgraphics and A.P.T.C. respectively. In addition, the plaintiff has

claimed a sum of Rs. 6,83,876/- as towards the interest on the

outstanding principal amount and a sum of Rs. 57,106/- on account of

TDS deducted by the defendant. In this way, the plaintiff has sought

recovery of Rs. 20,35,213/-. It is alleged that the defendant has failed

to pay the aforesaid amount despite demands and also issue of legal

notice dated 16.03.2004. The plaintiff has claimed the aforesaid

amount with interest @ 21% p.a. from the date of filing of the suit.

2. The defendant, while admitting that it has been dealing with the

plaintiff and M/s. Chromocom Colorgraphics and A.P.T.C., has stated

that all the transactions were independent of each other and that

whatever was due, has been paid to the plaintiff as also to M/s.

Chromocom Colorgraphics and A.P.T.C., and that, nothing was due

from it (defendant). It was also the defendant's case that all the three

are independent and separate legal entities, having separate dealings

with the defendant, and thus, the suit as filed by the plaintiff was bad

for mis-joinder of the causes of actions and mis-joinder of the parties.

It was specifically denied that the amounts as alleged by the plaintiff

were due to the plaintiff as also M/s. Chromocom Colorgraphics and

A.P.T.C.

3. The suit was set for trial on the following issues vide order dated

11.05.2006:

(1) Is the plaint liable to be rejected under Order 7 Rule 11 CPC?

(2) Is the suit bad for mis-joinder of causes of action and mis-joinder of parties? If so, should the suit be presented before the District Judge?

(3) Is the plaintiff entitled to recover a sum of Rs.20,35,213/- towards the service provided by the plaintiff to the defendant?

(4) What payment, if any, had the defendant made to the plaintiff?

(5) Is the plaintiff entitled to interest? If so, at what rate and for what period?

(6) Is any part of the suit barred by limitation?

(7) To what relief, if any, the plaintiff is entitled to?

4. These issues were framed on the plea of the defendant that the

plaint does not disclose any cause of action and that the suit was bad

for mis-joinder of causes of actions. As is noted above, it was the case

of the plaintiff that M/s. Chromocom Colorgraphics and A.P.T.C. are

its divisions engaged in providing processing, scanning and other allied

services related to the printing etc. The plaintiff's witness Mr. Sanjay

Mishra (PW1) has categorically stated and maintained that both M/s.

Chromocom Colorgraphics as also A.P.T.C. are the divisions of the

plaintiff company. While M/s. Chromocom Colorgraphics is engaged

in rendering specialized printing services like processing, scanning

etc., A.P.T.C. is engaged in rendering allied printing services. He also

maintained that both are the divisions of plaintiff company and are not

the separate legal entities. In his cross examination, while maintaining

that the defendant had placed separate orders on the plaintiff and M/s.

Chromocom Colorgraphics and A.P.T.C., and based on which, separate

supplies were made vide separate invoices, he denied that these are

separate and independent entities. He maintained both these to be the

divisions of the plaintiff company. In the various invoices raised by

M/s. Chromocom Colorgraphics, it is conspicuously mentioned to be

the division of the plaintiff. There is no reason to doubt the testimony

of PW1 Sanjay Mishra that M/s. Chromocom Colorgraphics as also

A.P.T.C. are nothing, but the divisions of plaintiff company. On the

other hand, the defendant has not led any evidence to disprove the

claim of the plaintiff, showing that M/s. Chromocom Colorgraphics

and A.P.T.C. were separate legal entities. The defendant having failed

to discharge the onus in this regard, both the issues are decided in

favour of the plaintiff and against the defendant.

5. This issue was also framed on the plea of the defendant.

Nothing has been brought on record by the defendant to show as to

how the suit was barred by limitation. The defendant having failed to

discharge the onus placed upon it, the issue is decided against it and in

favour of the plaintiff.

6. As is noted above, it was not denied by the defendant that it had

been having dealing with the plaintiff as also M/s. Chromocom

Colorgraphics and A.P.T.C. and had been placing separate orders and

getting services. The defendant while denying that the amounts as

mentioned above were due from it to the plaintiff and its divisions,

stated that the payments had been made in respect of all the invoices

whichever were received. All the pleas taken in this regard are not

only vague, but remain unsubstantiated. The defendant has not led any

evidence to disprove the claim that is set up by the plaintiff and which

stands substantiated from the testimony of PW1 Sanjay Mishra. PW1

has specifically stated and maintained that a sum of Rs. 4,34,111.98/-

remained unpaid and was outstanding from the defendant towards the

plaintiff. The invoices of total sum of Rs. 7,68,663/- were raised on

the defendant by M/s. Chromocom Colorgraphics for the services

rendered and against which, no payment was made by the defendant.

Likewise, the invoices of total sum of Rs. 91,456/- were raised on the

defendant by A.P.T.C., against which also, no payment was made by

the defendant. PW1 has also placed on record purchase orders and

invoices collectively as Ex.PI. He stated and maintained that all the

works were executed by the plaintiff by it and through its divisions

vide the purchase orders and aforesaid invoices, and which were duly

acknowledged by the defendant on the delivery challans, which are

collectively proved as Ex.PII. PW1 has also placed on record the

Statement of Accounts of the plaintiff collectively as Ex.PIII. He

stated that all these accounts of the plaintiff's company were duly

audited. PW1 further stated and to which, there is no denial that legal

notice dated 16.03.2004 was duly served upon the defendant, and that

no payment was made by the defendant despite receipt of this notice.

There is no reason to disbelieve the Statement of Accounts maintained

by the plaintiff and its divisions in the ordinary course of businesses.

The defendant has not brought anything on record to show that any

payment towards any of the invoices, was made by it to the plaintiff or

its divisions, as alleged by it. No evidence of any sort has been led in

this regard by the defendant. In view of all this, it stands proved that

the defendant had availed various kinds of services from the plaintiff

directly and through its divisions, and for which, the invoices were

raised, but the same remained unpaid by the defendant despite receipt

of legal notice. Thus, these issues are decided in favour of the plaintiff

and against the defendant.

7. The plaintiff has claimed the interest @ 21% p.a. from the date

of filing of the suit till the date of decree. Referring to various invoices

of the plaintiff as also its divisions M/s. Chromocom Colorgraphics

and A.P.T.C., the plaintiff has claimed interest @ 21% p.a. on the

outstanding amount after the due dates. This could not be controverted

by the learned counsel for the defendant. As is noted above, the

plaintiff has already included in the claimed amount the interest

amounting Rs. 7,68,663/- uptill the date of filing of the suit. However,

having regard to the entire factual matrix, particularly the time taken in

the trial, the plaintiff would be entitled to the pendente lite interest @

15% p.a. from the date of filing of the suit till today, and future interest

at this rate till realization. Thus, the suit of the plaintiff is decreed for

a sum of Rs.20,35,213/- with interest @ 15% p.a. pendente lite from

08.04.2005 till today i.e. 15.04.2013 and future interest at this rate till

its realization. Suit stands disposed of. Decree be drawn accordingly.

M.L. MEHTA, J.

APRIL 15, 2013 akb