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2017 Supreme(Del) 3852
IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
TOP FORTY SUSPENSION PVT. LTD. - PLAINTIFF
Versus
TOP AUTO PVT. LTD. - DEFENDANT
CS(OS) 114 of 2014
Decided On : 01-11-2017
For the Plaintiff : Mr. Amit Sanduja
The main legal point established in the judgment is the importance of admissible evidence and burden of proof in civil suits for recovery.
Headnote:
Recovery - Auto Parts Supply - None - The Code of Civil Procedure, 1908 - Order II Rule 2 CPC - The court discussed the recovery of a sum of Rs.1,54,48,680.60 from the defendant for auto parts supplied by the plaintiff. The court found in favor of the plaintiff and passed a decree for the recovery of the amount along with interest and costs.
Fact of the Case:
The plaintiff filed a suit seeking recovery of a sum of Rs.1,54,48,680.60 from the defendant for auto parts supplied since 2000. The defendant failed to respond to a notice served and the matter was listed for several dates with no appearance from the defendant.
Finding of the Court:
The court found that a sum of Rs.1,00,31,610.60 was due and payable by the defendant to the plaintiff. The defendant failed to prove that the goods supplied were defective or that any amount was due from the plaintiff. The court also found that the suit was not barred under Order II Rule 2 CPC.
Issues: The issues framed by the court included the amount the plaintiff is entitled to recover, liability of the defendant to pay interest, defective goods supplied, liability of the plaintiff to pay any amount to the defendant, and whether the suit was barred under Order II Rule 2 CPC.
Ratio Decidendi: The court relied on the evidence presented by the plaintiff, including certified copies of ledger accounts and notice served to the defendant. The court also emphasized the failure of the defendant to provide admissible evidence and the lack of proof for the issues on defective goods and liability of the plaintiff.
Final Decision: The court passed a decree in favor of the plaintiff for a sum of Rs.1,54,48,680/- along with interest and costs, and disposed of the suit.
JAYANT NATH, J.
1. The present suit is filed by the plaintiff seeking recovery of a sum of Rs.1,54,48,680.60 from the defendant.
2. In the plaint, it has been stated that the plaintiff has been supplying auto parts to defendant No.1 since 2000. It is claimed that as on 01.04.2010 an amount of Rs.1,25,81,610.60 is due from defendant No.1 in respect of the goods so supplied by the plaintiff to the defendant No.1. It is stated that the parties are maintaining a mutual open and current account. Various payments have been received from the defendant No.1. Last payment was made by the defendant on 05.01.2011 for a sum of Rs.1,00,000/- vide cheque No.384271 drawn on ICICI Bank, Model Town Branch, Delhi. Hence, it is pleaded that the suit is within time.
3. It is also pointed out that a notice was served on 24.12.2013 on the defendant thereby asking the defendant to make necessary payment. Despite delivery of notice, the defendant have neither sent a reply nor made payment.
4. I may note that in the present case the plaintiff has impleaded the defendants No.2 to 4 who are the Directors of defendant No.1 as parties. There is no averment in the entire plaint as to how defendants No.2 to 4 can be said to be personally liable for the acts and deeds of defendant No.1. In my opinion defendants No.2 to 4 are neither necessary nor proper party. I accordingly delete them from the array of parties.
5. I may note that this matter was listed as item ‘1A’ in the category of regular list and has been called out on several dates. On earlier dates, none had appeared for the defendant. Today, the learned counsel for the plaintiff has appeared. None has appeared for the defendant.
6. The defendants have filed a written statement. In the written statement, it is pleaded that the plaintiff approached the defendant for appointing them as their exclusive wholesale distributor (for all India) for their automobile products under the brand “ORVEL”. It is urged that directors of the plaintiff used the experience and acumen of Mr. Rajesh Thukral who invested enormous resources in building reputation and goodwill of Orvel brand goods of the plaintiff. It is pointed out that return of defective goods and reimbursement is normal trade practice of the automobile part industry. Similarly, cash discount coupons are issued as incentives by the manufacturer and they are enchased at the Dealer’s end. It is urged that the defendant incurred massive expenses and issued credit notes to the people who returned defective Orvel goods and routinely reimbursed people qua the coupons. It is stated that the plaintiff is well aware of the huge stock of defective Orvel brand goods lying with the defendant which were returned each year. Credit notes of Rs.1,09,47,638 is said to have been issued to the buyers for the goods of the plaintiff. Further Orvel brand goods worth Rs.28,47,592/- are lying with the defendant till date. Further it is pleaded that cash discount coupons of the buyers worth Rs.43,38,797/- are also pending. Further the defendant claimed to have spent a sum of Rs.39,19,183/- towards expenses for travelling and sundry charges for the employees of the plaintiff. Hence, it is pleaded that as per records, no amount is due from the defendant. It is also conceded that the directors of the plaintiff had instituted a suit for recovery of Rs.10 lacs against the defendant. In 2012, the suit was decreed and the defendant paid the said sum alongwith interest.
7. Based on the above pleadings, this court framed issues on 29.09.2014, which are as follows:
(1) To what amount the plaintiff is entitled to recover from the defendant? OPP
(2) Whether the defendant is liable to pay any interest to the plaintiff? OPP
(3) Whether the goods supplied by the plaintiff to the defendants were defective? OPD
(4) Whether the plaintiff is liable to pay any amount to the defendant as alleged in the written statement? OPD
(5) Whether the instant suit is barred under Order II Rule 2 CPC? OPD
(6) Relief
