Delhi High Court
Prabhu Dayal Jain vs Prabhu Dayal Jain on 28 September, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 28th September, 2016
+ CS(COMM) 257/2016
PRABHU DAYAL JAIN ..... Plaintiff
Through Mr. R.K. Jain, Advocate
versus
BUSH FOODS OVERSEAS PVT LTD ..... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1.
Plaintiff has filed the present suit for recovery of Rs.1,25,86,775/-.
2. Summons were issued to the defendant in the suit by approved courier.
Despite service, the defendant has chosen not to put appearance in the
matter.
3. By an order dated 21.04.2016, the defendant was proceeded ex parte.
Leave was granted to the plaintiff to file affidavit by way evidence.
The plaintiff has filed affidavit of Sh. Prabhu Dayal Jain, proprietor of
the plaintiff (PW-1). Evidence has also been filed of one Aman
Kumar, Accountant (PW-2).
4. As per the plaint, the plaintiff is carrying on the business of grain
merchants and commission agents under the name and style of M/s
Sagar Chand Prabhu Dayal from 3955/2, Naya Bazar, Delhi. The
defendant is a company incorporated under the Companies Act, 1956
and having its registered office at Saket, New Delhi. Defendant is
stated to be engaged in the business of procuring, purchasing, selling
importing, exporting and dealing in all kinds of rice and allied products.
The defendant had business dealing with the plaintiff, the defendant
used to purchase various types of rice on credit from the plaintiff for
the purposes of exporting and storage. The defendant also used to
procure rice from other sellers for the purpose of storage and at times in
case the plaintiff was in requirement of rice, the defendant would part
with the same to the plaintiff with the surplus stock of rice. The
plaintiff was maintaining accounts in the ordinary course of business,
copy of the statement of account has been filed. Along with the plaint,
the plaintiff has also filed copies of invoices on the basis of which the
supplies were made by the plaintiff from time to time to the defendant.
5. It is claimed that the defendant was a habitual defaulter and would
delay in making payments. On 01.04.2015, a sum of Rs.1,25,86,775/-
was due and payable by the defendant in favour of the plaintiff. This
amount comprises of Rs.89,72,878/- towards principal amount and
Rs.36,13,897/- towards interest. It is also stated that cheque in the sum
of Rs.13,00,000/- bearing no.020590 dated 10.10.2013 was issued by
the defendant to the plaintiff as part payment, which was returned by
the banker of the defendant on account of 'payment having been
stopped'. It is pointed out that the plaintiff has also filed a complaint
under Section 138 of the Negotiable Instruments Act against the
defendant, which is also pending. Counsel submits that in additional to
the aforesaid cheque, the defendant had also issued two other cheques
to the plaintiff, which have dishonoured.
6. In support of the averments made, affidavit of the plaintiff PW-1,
Prabhu Dayal Jain has been filed, who has deposed on the lines of the
plaint. As per PW-1, the plaintiff is carrying on the business of grain
merchants and commission agents. Form DAVT 07 has been filed to
show that PW-1 is the proprietor of the plaintiff (Ex.PW-1/1).
According to this witness, the defendant had business dealings with the
plaintiff. Various types of rice were purchased from time to time for
the purposes of storage and exporting. PW-1 has deposed that the
plaintiff was maintaining regular accounts in the ordinary course of
business. Copy of the statement of account signed by the Accountant
has been placed on record as exhibit Ex.PW1/2. This witness has
deposed that this statement of account was prepared by the Accountant
Sh. Aman Kumar, PW-2 who is working as a Computer Accountant. A
Certificate under Section 65B of Evidence Act has been exhibited as
Ex.PW-1/3(collectively). This witness has also deposed that various
invoices were raised from time to time and the defendant used to
discharge its liability by making part payment. Payments were
received by the plaintiff either through RTGS or Account Payee
cheques. The last invoice of purchase was Invoice bearing no.557
dated 30.09.2013 made by the defendant for Rs.11,35,820/-. This
witness has also testified that all the details of the invoice are duly
reflected in statement of accounts Ex.PW-1/2. It is also testified that as
per the Invoices, the defendant was to make payment within 30 days,
failing which the defendant was required to pay interest @ 24% per
annum. Attention of the Court is also drawn to the invoices to show
that the invoices reflected the name of the transporter and truck
numbers/GR numbers showing the delivery of goods. The Invoices are
exhibited as Ex.PW-1/4 (collectively). The photocopies of the Invoices
have been placed on record. Originals have been brought to Court,
which are seen and returned. This witness also testified that during the
period of transaction, the cheques were handed over but payments were
stopped. The dishonoured cheques are exhibited as Ex.PW-1/5 to
Ex.PW-1/7 apart from bank memos being Ex.PW-1/8 to Ex.PW-1/10.
According to the witness, on the date of filing of the suit, a sum of
Rs.1,25,86,775/- was due and payable, which included the principal
amount of Rs.89,72,878/-.
7. As per PW-2, Aman Kumar, who is the Computer Accountant of the
plaintiff, the statement of account was prepared by him being Ex.
PW-1/2. The Certificate under Section 65B of Evidence Act is marked
as Ex.PW-1/3. He had identified his signature at point 'A' on the
Certificate under Section 65B.
8. I have heard the learned counsel for the plaintiff, examined the copies
of Invoices placed on record. Originals were produced in Court. Based
on the evidence, it is established that the plaintiff was carrying on its
business of purchasing, selling, importing and dealing in all kinds of
rice. The defendant had business dealings with the plaintiff. The
Invoices are exhibited as Ex.PW-1/4 (collectively). Statement of
account Ex.PW-1/2 would show that a sum of Rs.89,72,878/- is due
and payable as principal amount and Rs.36,13,897/- as interest.
Plaintiff has claimed interest accrued on the Invoices. Despite service,
defendant has chosen not to contest the matter.
9. Accordingly, the present suit is decreed in favour of the plaintiff in the
sum of Rs.1,25,86,775/- with pendenti lite and future interest @ 8%.
10. The decree sheet be drawn up accordingly.
G.S.SISTANI, J
SEPTEMBER 28, 2016
pst
