Delhi High Court
Prem Sagar Jain vs M/S Aditya Overseas And Anr on 1 September, 2014
$~ 1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 78/2006
% Date of decision : 1st September, 2014
PREM SAGAR JAIN ..... Plaintiff
Through: Mr.Ramesh Kumar, Adv.
versus
M/S ADITYA OVERSEAS AND ANR. ..... Defendant
Through: None
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)
1. Plaintiff has filed the present suit for recovery of Rs.44,44,755/-.
Summons were issued in the suit on 17.1.2006. Defendants entered
appearance and also filed their written statement. Thereafter following
issues were framed on 4.8.2008:
(i) Whether the defendants had returned the goods subject matter of
six bills to the plaintiff as stated in para 2 of the preliminary
objections? OPD
(ii) Whether the goods supplied by the plaintiff to the defendants
under the remaining three bills were sub standard as stated in
para 3 of the preliminary objections, if so, to what effect?
OPD
(iii) To what amount, if any, is the plaintiff entitled to? OPP
(iv) Whether the plaintiff is entitled to any interest, if so, at what rate
and for what period? OPP
(v) Relief.
2. The onus to prove issues No.1 and 2 was on the defendants. Being the
main issues, the defendants were directed to lead evidence first. The
defendants filed affidavits of two witnesses. Only one witness stepped
into the witness box. He was cross-examined in part. Thereafter he
stopped appearing and evidence of defendants was closed on 7.8.2012.
Thereafter since the plaintiff did not lead evidence, the right of the
plaintiff was also closed. However, the case was re-opened at the request
of the plaintiff on 12.4.2013. Plaintiff has filed the evidence of one
witness. None has chosen to cross-examine the plaintiff's witness.
3. The Plaint is duly supported by the affidavit of Mr Prem Sagar Jain, PW1.
As per the plaint, the plaintiff is dealing in the business of metals.
Defendant No. 1 is a firm/company and Defendant No. 2 is incharge of all
day to day affairs of Defendant No. 1 and was also dealing with the
plaintiff on behalf of Defendant No.1. Defendants had approached the
plaintiff for purchase of metals and have been maintaining a statement of
account with plaintiff.
4. As per the evidence of PW1, for the goods supplied at the request of
defendants the bills were raised from time to time which remained unpaid.
The plaint also discloses that nine bills were raised on the defendants as
detailed below:
BILL NO. DATE AMOUNT
5923 10.09.2004 2,11,300/-
5924 10.09.2004 30,56,300/-
5925 10.09.2004 3,81,100/-
5926 11.09.2004 2,63,100/-
5927 11.09.2004 1,03,560/-
5928 14.09.2004 1,02,756/-
5937 22.09.2004 19,910/-
5938 22.09.2004 7,305/-
5950 06.10.2004 93,180/-
The bills have been exhibited as Ex.P1, Ex.P2, Ex.P3, Ex.P4, Ex.P12,
Ex.P5, Ex.P6, Ex.PW-1/1 and another Ex.P6. The bill which was
admitted by the defendants is the one which has been exhibited as
Ex.PW1/1.
5. PW1 has further deposed that the defendants have wrongly stated that
they have not received goods of bills exhibited as Ex.P2, Ex.P3, Ex.P4,
Ex.P6, Ex.P6 and Ex.P12 and that goods against bills exhibited as Ex.P1,
Ex.P5 and PW-1/1 were below standard. The Defendants have made these
false allegations just to avoid their liability.
6. PW1 has next deposed that the plaintiff has also filed the statement of
account for the year 2004-05 which has been exhibited as Ex.PW1/2, as
per which the defendants are liable to pay a total sum of Rs 44,44,755/-
which includes a principal amount of Rs 34,54,121/- and interest @ 24%
thereon amounting to Rs.7,36,874/- till 31.7.2005 and are also liable to
pay a sum of Rs.2,53,760/- towards the liability for C forms which have
not been issued till date and for which the plaintiff is liable to pay the
sales tax.
7. PW1 has also deposed that several requests were made to Defendants for
the payment of balance amount but Defendants ignored to pay so. A legal
notice dated 12.1.2005 was issued to the defendants, a copy of which has
been exhibited as Ex.DW1/4 which was also admitted by the defendants
during admission/denial of documents (Ex.P7). The reply to the legal
notice has been exhibited as Ex.P8 as well as Ex. DW1/6
8. I have heard counsel for the plaintiff and also perused the plaint and the
documents which have been placed on record. Since after filing the
evidence, the witness of the defendant did not appear for his cross-
examination, the evidence placed on record by the defendants cannot be
read in evidence. Onus to prove issues no.1 and 2 was fixed on the
defendants. The defendants have failed to lead evidence or discharge the
onus. Plaintiff has also filed his evidence by way of affidavit (Ex.PW-
1/A). The evidence of plaintiff has remained unchallenged and
undisputed.
9. Plaintiff has placed on record invoices in support of his plea that goods
were supplied to the defendants. The plaintiff has also filed the copy of
the statement of account for the year 2004-05 which has been exhibited as
Ex.PW1/2 as per which a sum of Rs 44,44,755/- on account of past
dealings, is due and payable by the Defendants to the plaintiff. As the
payments were not made, legal notice was also issued to the defendants
which has been exhibited as DW1/4 as well as Ex.P7.
10. Having regard to the documents placed on record and taking into
consideration the evidence of plaintiff which has gone unrebutted and
unchallenged, the present suit is decreed in favour of the plaintiff and
against the defendants with pendente lite and future interest @8% with
costs.
11. Decree sheet be drawn up accordingly.
G.S.SISTANI, J
SEPTEMBER 1, 2014
ns
