Ais Glass Solutions Limited vs Moser Baer Solar Limited & Ors
2019 Latest Caselaw 553 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(COMM) 1335/2016

      AIS GLASS SOLUTIONS LIMITED                ..... Plaintiff
                         Through: Mr. Neeraj Yadav, Advocate with
                                  Ms. Aditi Sharma, Advocate.


                         versus

      MOSER BAER SOLAR LIMITED & ORS                     .....Defendant
                        Through: None.


%                            Date of Decision: 29th January, 2019


      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN

                            JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for recovery of USD $ 206,327, equivalent to Rs.1,23,79,620/-, along with pendente lite and future interest at 18% per annum and mandatory injunction. The prayer clause in the present suit is reproduced hereinbelow:-

"a) Pass a decree for recovery of US$ 206,327 equivalent to Rs. 1,23,79,620/- (Rupees One Crore Twenty Three Lakhs Seventy Nine Thousand Six Hundred And Twenty) alongwith pendentlite and future interest @18% per annum in favour of the plaintiff and against the defendants;

b) Pass a decree of mandatory injunction in favour of the Plaintiff and against the defendants thereby directing the defendants to handover to the Plaintiff Company the 31 steel racks constructed and owned by the plaintiff company or in the alternative pass a decree for recovery of Rs. 11,78,000/- (Eleven Lakhs Seventy Eight Thousand Only) being the value of the racks alongwith interest @18% p.a;

e) Pass any such other or further order that this Hon'ble Court deems fit in the facts and circumstances of the case;"

2. On 06th November, 2017, this Court had dismissed the defendant no.1's application for extension of time to file written statement and closed the right of defendant no.1 to file a written statement.

3. The plaintiff filed its list of witnesses as well as evidence by way of affidavits. However, thereafter, the defendants stopped appearing. Consequently, the defendants are proceeded ex parte.

4. The contentions and submissions advanced by learned counsel for the plaintiff are as under:-

i. The defendant no.1, through its Directors, i.e. defendant nos. 2 and 3, approached the plaintiff company for supply of Bevelled Glass Panels made out of Float Glass 3.2 MM.

ii. The plaintiff agreed to supply the said products as per the specifications of the defendants.

iii. Since the defendant no.1 was a part of the Special Economic Zone (SEZ) the invoices were raised on the defendant no.1 in US Dollars.

However, for accounting purposes the amounts were reflected in Indian Rupees, as per the availing exchange rates at the relevant time. iv. The plaintiff maintained a separate Ledger/Statement of Account in respect of the transactions with the defendant no.1. v. Initially, the orders were placed on the plaintiff company in the original name of the defendant no.1, i.e. M/s PV Technologies India Ltd., and a separate ledger account was maintained in respect of the transactions between the plaintiff company and the defendant no.1 during such period.

vi. Subsequently, the name of the defendant no.1 changed to M/s Moser Baer Solar Ltd. and thereafter the plaintiff company started maintaining a new ledger account in the name of M/s Moser Baer Solar Ltd.

vii. Prior to the commencement of the supply and delivery of the goods i.e. Bevelled Glass Panels made out of Float Glass 3.2 MM, the defendant no.1 had requested that the said goods be transported in stainless steel racks. The defendant no.1 paid an advance Rs.55,00,000/- to get the said racks constructed. viii. The plaintiff company got 144 stainless steel racks constructed for the aforesaid purpose and the said racks were exclusively used by the plaintiff company for transporting the Bevelled Glass Panels made out of Float Glass 3.2 MM, to the defendant no.1.

ix. The aforesaid amount of Rs.55,00,000/- was adjusted by the plaintiff company @ Rs. 6.08 sqm of glass supplied and the whole advance stood adjusted on the completion of supplies of about 9,04,000 sqm of glass to the defendant no.1.

x. After the change of name of defendant no.1, it became highly irregular in paying its dues to the plaintiff company and various emails and letters were sent by the plaintiff company claiming its dues.

xi. The plaintiff ultimately issued a notice dated 13th January, 2012, calling upon the defendants to clear the outstanding overdue of US $ 158,981.04. The plaintiff also issued letter dated 13 th February, 2012 calling upon the defendants to clear the outstanding dues. Subsequently, the defendant no.1 company vide its letter dated 18 th February, 2012 requested the plaintiff company to send them the detailed statement so that they could reconcile the same and release the payment.

xii. The request for payment was reiterated vide letter dated 06 th April, 2012. The defendant vide letter dated 18th April, 2012 admitted that it was unable to pay the invoices within time and requested the plaintiff company for time till July/August 2012.

xiii. The plaintiff company sent another letter dated 10th May, 2012 to the defendant no.3 claiming an outstanding amount of USD $ 153,733. xiv. Pursuant to the said letter, the defendant no.1 company paid an amount of Rs.1,08,035.06/- on 29th June, 2012, as part payment towards its outstanding dues and the same is duly reflected in the Ledger / Statement of Account (Ex.PW2/1 Colly). xv. The suit is within limitation in view of Section 19 of the Limitation Act, 1963. The period of limitation would begin from the last date of payment i.e. 29th June, 2012 and the suit, having been filed on 17th April, 2015, is within limitation.

xvi. The defendants have failed to make the relevant payment to the plaintiff company and have also failed to return 31 Stainless Steel Racks belonging to the plaintiff company which are valued at Rs.11,78,000/-, despite various requests.

xvii. The defence of the defendants had been struck off by this Court vide Order dated 06th November, 2017.

xviii. Consequently, the plaintiff is entitled to a sum of USD $ 206,327 for the goods supplied including interest @ 18% per annum on account of delayed payment from 01st April, 2013 and a direction to the defendant no.1 company for returning the 31 Stainless Steel Racks which are in the possession of the defendants.

5. The plaintiff has duly proved its case by examining Mr. Deepak Yadav, Section - Head Legal, as PW1 who has proved the institution of the Suit and the case of the plaintiff Company. The said witness has duly proved the Invoices raised by the plaintiff and the correspondences / letters / Notices issued by the plaintiff and receipt of Letters issued by the defendants to the plaintiff.

6. The plaintiff has also examined Mr. Santosh Kumar Gupta, Head - Finance and Accounts, as PW-2, who has duly proved the Ledger / Statement of Account maintained by the plaintiff, in respect of its transaction with the defendant no.1, in regular course of business. The PW- 2 has also filed a Certificate under Section 65-B of the Evidence Act, 1872. The said Certificate is exhibited as Ex. PW2/9.

7. The Statement of Account / Ledger [Ex.PW2/1 (Colly)] showing the outstanding has been duly proved by PW-2 and is duly supported by

contemporaneous documents such as invoices and the Bank account statement of the plaintiff company maintained with Axis Bank, East of Kailash, New Delhi. The Bank Account Statement is exhibited as Ex. PW- 2/2 and Ex. PW-2/3. Furthermore, the liability to pay is not disputed by the defendant no.1 company as is evident from Letter dated 18 th April, 2012, wherein the defendant had admitted that it was unable to pay the invoices within time and requested the plaintiff to bear with it till July / August, 2012. The said letter is PW-1/12. Notably, during the examination, the witness, PW-2, has relied upon all the documents exhibited and proved by the witness PW-1. Therefore, the Statement of Account / Ledger [Ex. PW2/1 (Colly)] has been duly corroborated and proved to be correct in terms of the rigors of Section 34 of the Indian Evidence Act, 1872. A Coordinate Bench of this Court in Vijay Power Generators Ltd. v. Sumit Seth; Tarun Engineering Syndicate, 2014 LawSuit(Del) 1796 has held as under:-

"10. Ex.CW3/4 (Colly) is the statement of account maintained by the appellant/complainant Company in respect of the accused Tarun Engineering Syndicate. This account has been maintained in electronic form the year 1996-1997 onwards. A certificate under Section 65B of the Evidence Act is also annexed to the said statement. CW3 Shri Kishore Kumar has vouched the correctness of the said statement on oath. On the other hand the respondent has not produced any witness to rebut the sworn statement of Shri Kishore Kumar nor has it produced its own account books or its account in respect of the transaction with the complainant/appellant. This is not the case of the accused that it had no dealing with the appellant/complainant at any point of time. In these circumstances there would be no reason to reject the statement of accounts filed by the appellant/complainant Company, which is admissible in evidence under Section 34 of the Evidence Act. .........."

8. This Court is of the view that the defendants have acknowledged the due amount and have failed to pay the same despite repeated requests made by the plaintiff company. Additionally, the defendants have also not returned the 31 Stainless Steel Racks which are owned by the plaintiff company and which have been valued by the plaintiff at Rs.11,78,000/-.

9. Further, as the averments in the plaint have not been rebutted by the defendants, they are deemed to have been admitted.

10. Consequently, the suit is decreed in favour of the plaintiff and against the defendants for Rs.1,23,79,620/- plus Rs.11,78,000/- along with pendente lite and future interest at 7% per annum. This Court may mention that it is awarding the interest at 7% per annum as that is the normal rate at which the banks are lending monies now-a-days. The plaintiff is also held entitled to actual costs of litigation. The costs shall amongst others include the lawyer's fees as well as the amount spent on Court-fees. The plaintiff is given liberty to file on record the exact cost incurred by it in adjudication of the present suit. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J JANUARY 29, 2019 rs