Anil Wadhwa vs Intrend Cotton Pvt Ltd & Ors
2014 Latest Caselaw 5144 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision :14h October, 2014

+                         CS(OS) 891/2012

       ANIL WADHWA                               .... Plaintiff
            Through : Mr. Abdhesh Chaudhary, Advocate


                          versus


       INTREND COTTON PVT LTD & ORS                        ..... Defendants
           Through : None


       CORAM:
          HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (Oral)

1. Plaintiff has fled the present suit for recovery in the sum of Rs.41,25,752.83 together with pendente lite and future interest.

2. Summons in the suit were issued in the suit on 09.04.2012. Counsel for the defendants entered appearance on 29.05.2012 and sought time to file written statement. Since written statement was not filed by the defendants within the prescribed period, the right of the defendants to file written statement was closed by an order dated 19.08.2013. None appeared on behalf of the defendants to carry out admission/denial of documents. Accordingly, the documents filed by the plaintiff were deemed to be admitted by an order dated 24.09.2013 and the plaintiff was directed to lead evidence.

3. The plaintiff has filed his affidavit by way of evidence (PW-1/A) and the affidavit by way of evidence of Sh.Ishwar Prasad Shukla (PW-2/A), who has deposed on the lines of PW-1. None appeared on behalf of the defendants to cross-examine the witness of the plaintiff. The order sheet reveals that none has been appearing on behalf of the defendants since 24.09.2013.

4. As per the evidence of PW-1, the plaintiff is a trader dealing in distribution and supply of textiles, dyes (colours) and chemicals. Over the passage of time, through his sheer hard work, the plaintiff has gained a good reputation, stature and goodwill in the market. Defendant no.1 is a Pvt. Ltd. company and defendant nos.2 to 4 are the directors of defendant no.1. Defendants are engaged in the business of textiles, garments, dyeing and washing etc.

5. PW1 has also deposed that the defendants approached the plaintiff at New Delhi and expressed their desire to purchase dyes (colours) and chemicals, to which the plaintiff agreed. Defendants also requested to supply and deliver the goods/raw materials directly at their factory but the orders were placed from their Delhi office which is company's sales/management office. The defendants further requested the plaintiff to supply the goods on credit and promised to pay the amount of invoices from time to time including making of on account payments. Defendants also agreed to pay interest @ 18% p.a. to the plaintiff in case of delayed payments beyond a period of 15 days from the date of invoice.

6. PW1 has further deposed that the plaintiff and defendants have been in their respective business for a considerable period of time and have known each other for a long time and have gain enough trust in each other. As such the plaintiff agreed to sell the said goods/raw materials to

the defendants on credit. Plaintiff supplied the goods as per the requirements and satisfaction of the defendants without any demur, for the period from April 2009 to February, 2011. All invoices raised against the defendant company by the plaintiff for the period April 2009 to March 2011 have been exhibited as Ex.PW1/1(colly). Plaintiff maintained a running account of the defendants in his books of account. All the invoice amounts as well all the payments/on account payments made by the defendants to the plaintiff as also the debit notes were duly entered in the said running account of the defendants.

7. PW1 has next deposed that the defendants time and again intentionally failed to pay the amounts of purchased goods/materials to the plaintiff inspite of several reminders. The running account and the ledger of the defendant maintained by the plaintiff for the period of April, 2009 to March, 2011, showed a total outstanding amount of Rs.33,26,675.80. Plaintiff requested the defendants for its early release and to clear the outstanding at the earliest. In respect of which the defendants confirmed the balance outstanding and represented that it shall be paid and cleared by them at the earliest. Ledger account maintained by the plaintiff of the defendants company has been exhibited as Ex.PW1/3(colly). Interest- sheet against delay payment up to January 15, 2012 has been exhibited as Ex.PW1/4(colly).

8. Further, the defendants were never given any cause of concern by the plaintiff about the quality and supply of goods and the same is evident from the fact that for the transactions and invoices raised by the plaintiff, the defendants have issued the Central Sales Tax Form 'C' of Declaration for all the invoices raised. Central Sales Tax Forms 'C' for the period

from April, 2009 to March, 2011 have been exhibited as Ex.PW1/2(colly).

9. PW1 has also deposed that as on date, the defendants running account maintained by the plaintiff shows a total outstanding of Rs.33,26,675.80/- for the period from April, 2009 to March, 2011 exclusive of interest @ 18% p.a. which comes to Rs.7,99,077.03/-, calculated from the 16th day of invoice on which it became due. Thus, the total outstanding against the defendants as of date and as claimed by the plaintiff is Rs.41,25,752.83/-.

10. PW1 has further deposed that the defendants stopped taking the call of the plaintiff and became untraceable. Regardless of their representations and assurances, the defendants miserably failed in making payment for the dues which in turn caused wrongful loss to the plaintiff. Debit Notes dated 23.12.2010 and 05.02.2011 have been exhibited as Ex.PW1/5(colly). It has also been deposed that the plaintiff, left with no other alternative to recover his legitimate outstanding amount was constrained to send a legal notice to the defendants calling upon them to clear the dues. Despite receipt of the said notice the defendant failed to clear the dues and did not even reply to the same. It has also been deposed that though the defendants are managing and looking after their day to day affairs from the Delhi office, they deliberately refused to receive the legal notice sent to Delhi office and the same was returned with the noting 'Left without Address'. However, with malafide intention, the defendants accepted the notice sent to their factory address at Mewat (HR). Legal Notice dated 02.09.2011 along with speed-post receipts have been exhibited as Ex.PW1/6 and Ex.PW1/7, respectively and returned copy of legal notice has been exhibited as Ex.PW1/8(colly).

11. I have heard counsel for the plaintiff and carefully perused the documents which have been placed on record along with the affidavit by way of evidence which have been filed. The evidence of plaintiff has gone unchallenged and un-rebutted.

12. On the basis of the documents placed on record, plaintiff has been able to establish that (i) the defendants approached the plaintiff at Delhi for the supply of goods at their Factory; (ii) orders were placed by the defendants from their Delhi office; (iii) invoices, towards the cost of material supplied, were raised by the plaintiff at Delhi; (iv) the invoices, copies of which have been placed on record, show that the Courts at Delhi would have jurisdiction. Thus, it is clear that the Courts at Delhi have jurisdiction to try and entertain the present suit.

13. The plaintiff has also been able to establish that during the course of business the defendants never raised any dispute or objection with regard to the goods/raw materials supplied by the plaintiff or the invoices raised by the plaintiff.

14. It may be noticed that the plaintiff also maintained a running account in the name of the defendants, which shows that there is an outstanding amount of Rs.33,26,675.80/- for the period 1.04.2009 to 31.03.2011, beside the interest @ 18% p.a. i.e. Rs.7,99,077.03/-, total outstanding amount including interest come to Rs.41,25,752.83/-. Further, the defendants, regardless of their representations and assurances, miserably failed to pay the outstanding amount, which has caused loss and damage to the plaintiff.

15. In view of the above, plaintiff has been able to establish the case for grant of decree as prayed for in the plaint. Accordingly, the present suit is decreed in favor of the plaintiff and against the defendants. The

defendants shall pay Rs.41,25,752.83/- to the plaintiff alongwith pendent lite and future interest @ 12% p.a. from the date of filing of the suit till realization.

16. Decree sheet be drawn up accordingly.

(G.S.SISTANI) JUDGE OCTOBER 14, 2014 msr