Delhi High Court
Nitin Garg vs M/S Saraswati Steel & Ors on 29 September, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 29th September, 2015
+ CS (OS) No. 2742/2014
NITIN GARG ..... Plaintiff
Through Mr.Anil Garg, Adv. along with
plaintiff in person.
versus
M/S SARASWATI STEEL & ORS
.....Defendants
Through Defendants are ex-parte.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The present suit is filed by the plaintiff for recovery of a sum of
Rs. 33,49,627/- along with pendent lite and future interest @ 24%
p.a.
2. The plaintiff is the proprietor of M/s Shree Ganesh Enterprises
and is doing the business of 'SS Patti', 'SS Coil' and other materials
from his office i.e. A-9/1, Wazirapur Industrial Area, Delhi-110052.
3. It is stated in the plaint that the defendant Nos.2 and 3
approached the plaintiff at his office and represented to him that they
are partners of defendant No.1 which is a partnership firm and both
the defendant Nos.2 and 3 are responsible for and are involved in the
day to day affairs of the defendant No.1. The defendant Nos.2 and 3
assured the plaintiff that their dealing would be fair and they would
timely make payments of the goods purchased from the plaintiff and
issue C-form in time. Thereafter the plaintiff agreed to give credit for a
period of one month to the defendants. It was also agreed between
the parties that the defendants will pay interest @ 24% p.a., which
was the prevalent market rate, on delay in every payment beyond the
period of one month from date of a bill whose payment was delayed.
The defendants agreed to the same and thereafter the defendants
purchased the material through various invoices against C-form from
the office of the plaintiff. The defendants used to place their orders
personally at the office of the plaintiff.
4. Despite service, no one appeared on behalf of the defendants
nor was the written statement filed and consequently, the defendants
were proceeded ex-parte vide order dated 9th January, 2015. The
plaintiff has filed his affidavit as evidence.
5. It is apparent that during the course of transactions the
defendants purchased goods worth Rs.50,21,587/- from the plaintiff
from his office, which also includes the freight charges of Rs.13,000/-.
The details of the purchases are given herein below:
Date Invoice No. Amount (in Rs.)
27.06.2011 R-156 11,83,883/-
14.07.2011 R-157 14,26,745/-
25.08.2011 R-161 1,80,938/-
25.08.2011 R-162 7,32,007/-
13.10.2011 R-164 9,13,502/-
30.10.2011 R-166 5,17,512.00
The above said invoices have been exhibited as Ex. PW/1 to
Ex. PW1/6 respectively. The plaintiff used to deliver the goods and
invoices to the defendants or its representatives at the Delhi office of
the plaintiff. The defendants or its representatives used to take
delivery personally after checking the goods, which they placed in
their order, at the office of the plaintiff and they also used to make
arrangements for transportation of the said goods on their own. The
defendants at the time of taking delivery from the plaintiff from his
office, every time handed over the Form-38 issued by the Department
of Commercial Taxes, Govt. of UP, which was a prerequisite for
transporting goods in the State of UP. The plaintiff after putting stamp
of his firm and signing the said Form-38 handed over the original of
the said Form-38 to the defendants/representatives of the defendants
along with the goods and invoices being mandatory requirement for
movement of goods in the State of UP.
6. It has come on record that the defendants paid only
Rs.31,50,000/- to the plaintiff leaving a balance of Rs.18,71,587/- as
well as interest on delayed payment outstanding against them. The
defendants used to make payment by transferring the amount into
the bank account of the plaintiff at Delhi. The plaintiff has maintained
a running account of the defendants firm and as per the normal
business practice, every payment made by the defendants was
adjusted towards the earliest unpaid bill. The statements of account
maintained by the plaintiff in ordinary course of business for the
period from 1st April, 2011 to 22nd August, 2014 have been exhibited
as Ex. PW1/7 to Ex. PW1/10. The certificate under Section 65-B of
the Evidence Act has been exhibited as Ex. PW1/11.
7. The plaintiff made number of communications to the
defendants and the plaintiff and its officials many times even visited
the office of the defendants for the balance payments and C-Forms
but the defendants avoided the payment on one pretext or the other
but gave the C-Forms to the plaintiff only after long delay and
repeated requests. The C-Form Nos.0586939, 0586940 and 0586941
all dated 24th October, 2013 have been exhibited as Ex. PW1/12, Ex.
PW 1/13 and Ex. PW 1/14 respectively.
8. Despite all the efforts of the plaintiff, the defendants did not
make the payment of the outstanding amount of Rs.18,71,587/- and
the amount of interest on delayed payment, the plaintiff got served a
legal notice dated 8th August, 2014 upon the defendants through
speed post and called upon the defendants to pay a sum of
Rs.18,71,587/- along with the interest @24% p.a. on the outstanding
amount. But even after receiving the said notice the defendants
neither made any payment to the plaintiff nor cared to send any reply
to the plaintiff. The legal notice dated 8th August, 2015 has been
exhibited as Ex. PW1/15. The calculation of the interest amount on
the delayed payment has been annexed with the plaint. Calculation of
amount of interest on delayed payment has been exhibited as Ex.
PW1/16.
9. In view of the above said facts and circumstances, the
defendants are liable to pay a sum of Rs.18,71,587/- to the plaintiff as
principal sum and the defendants are also liable to pay a sum of
Rs.14,78,040/- on account of interest (till the date of filing of the suit)
on delayed payment calculated @ 24% p.a. as per the rate prevalent
in the market which was agreed between the parties to the suit and
thus, the defendants in all are liable to make the payment of
Rs.33,49,627/-. Besides the defendants are also entitled for pendent
lite and future interest @ 12% p.a. to be payable from the date of
filing of the suit till its realization.
10. The suit of the plaintiff is accordingly decreed.
11. The plaintiff is also entitled for costs of proceedings.
12. Decree be drawn accordingly.
(MANMOHAN SINGH)
JUDGE
SEPTEMBER 29, 2015
