RFA (COMM) 76/2023 Page 1 of 16

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 03^rd August,2023

Pronounced on: 24^th August, 2023

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RFA(COMM) 76/2023 & CM APPL. 20581/2023

MODERN CONSTRUCTION COMPANY DELHI ..... Appellant

Through:

Mr. Aman Bhalla & Mr. Aman

Tehlan, Advocates.

versus

HITECH ENTERPRISES

..... Respondent

Through:

Mr. Parveen Kumar Aggarwal &

Mr. Piyush Biswas, Advocates.

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J

1.

The present appeal under Section 13 of the Commercial Courts Act,

2013 read with Order XLI Rule 1 and Section 96 of the Code of Civil

Procedure, 1908 (hereinafter referred to as “CPC”) has been filed against

the judgement and decree dated 14.02.2023 vide which the suit of the

respondent/plaintiff has been decreed under Order XXXVII of CPC for a

sum of Rs.53,69,918.70/- along with the interest @18% per annum.

2.

The facts in brief are that the plaintiff (hereinafter referred to as

'respondent') filed the Suit under Order XXXVII Rule 3(5) of CPC

seeking recovery of Rs. 53,69,918.70/- along with the interest @18% per

annum. The plaintiff is a registered Partnership Firm engaged in the

DigitallySigned By:SAHIL

SHARMA

Signing Date:24.08.2023

12:45:08

Signature Not Verified

RFA (COMM) 76/2023 Page 2 of 16

business of trading and supply of construction material including

aggregates. The defendant (herein after referred to as 'appellant') engaged

in the business of engineering and construction, pursuant to an Agreement

was supplied the requisite material from 03.08.2017 to 14.01.2019 under

various sale Invoices (280 in number), which were duly acknowledged

and accepted by the appellant. Goods worth of Rs. 72,19,425.50/- were

supplied during this period. As per terms and conditions of sale, the

defendant was also liable to pay 18% per annum interest on delayed

payments. A part payment of Rs.48,78,736/- was made till 29.08.2020 by

the defendant but thereafter he failed to make payment of the remaining

principal amount of Rs.23,40,689.50/- and also interest which comes to

Rs. 30,29,229.20/- as on 30.09.2021. Despite service of Legal Notice

dated 20.03.2021, the appellant failed to pay the amount; hence the suit

for recovery of 53,69,918.70/- was filed.

3.

The appellant after putting in his appearance, filed his “Leave to

application

wherein

it

was

claimed

that

there

is

misrepresentation and concealment of facts by the respondent. The basis

of the suit was not any written contract but the balance due at the foot of

the Ledger Account. The suit was not covered under Order XXXVII of

CPC and was liable to be dismissed.

4.

It was further claimed that the Court had no “territorial

jurisdiction” since all the transactions happened in Uttar Pradesh. The

goods were dispatched from U.P., supply was also made at U.P. Further,

objection was taken that there was no compliance of Section 12A of the

Commercial Courts Act, 2015 “providing for pre-litigation mediation”.

The calculation of interest at the rate of 18% per annum was also

DigitallySigned By:SAHIL

SHARMA

Signing Date:24.08.2023

12:45:08

Signature Not Verified

RFA (COMM) 76/2023 Page 3 of 16

challenged as being against the terms and conditions.

5.

It was further claimed that the material supplied by the respondent

was not of satisfactory quality, however was defective and sub-standard.

Consequently, owners of the Project where goods were supplied withheld

the money of the appellant. The appellant had already communicated to

the respondent about the goods