CO.PET. No.896 of 2016 Page 1 of 8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Reserved on: 25^th July, 2017

Pronounced on: 4^th August, 2017

+

CO.PET. 896/2016

NITYA ELECTROCONTROLS PVT. LTD.

..... Petitioner

Through : Mr.Rajesh Banati and Mr.Vikram

Singh, Advocates.

versus

UNIQUE ENGINEERS PRIVATE LTD. ..... Respondent

Through : Mr.Praveen Kr Singh, Mr.Utkarsh

Singh and Mohammad Ziauddin

Ahmad, Advocates.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1.

The respondent placed various purchase orders from time to time

for supply of fan starter panel, control console panel, ventilation panel,

main HVA panel and terrace panel. The petitioner supplied the material

from time to time. The detail of 43 invoices starting from 17.08.2012 to

October, 2013 are referred to in para 8 of the petition. The said invoices

are duly acknowledged by issuance of C Forms. The respondent has been

making part payments for the goods received as per details given in para

10 of petition. The respondent had paid a sum of ₹2,65,89,932/- against

the total liability of ₹2,93,57,829/-; thus leaving a balance of

₹27,67,897/- as outstanding. The respondent also issued a cheque

bearing No.615748 dated 15.03.2014 for ₹24,29,728/- for part payment,

CO.PET. No.896 of 2016 Page 2 of 8

but was dishonoured for reasons ‘payment stopped by the drawer’. The

payments later made were adjusted in the earlier invoices. The petitioner

served the statutory notice dated 04.08.2016 claiming the balance of

₹27,67,897/- with interest @ 18% pa, but the respondent failed /

neglected to make the payment. Hence, this petition.

2.

Respondent in its reply has admitted the issuance of the purchase

orders; invoices and part payments made, but alleges the petitioner did

not supply the complete material against the purchase orders despite

requests from time to time. The respondent admitted the amount of

₹2,65,89,932/-, paid against invoices of ₹2,93,57,829/- but denied any

amount, much less of ₹27,67,897/- is outstanding. The respondent alleges

that its debit notes worth ₹20,33,046/- towards short supply/ non-

providing of the services have been ignored by the petitioner, as stated in

para 9 of preliminary objections in its reply. It read as under:-

“9.

CO.PET. No.896 of 2016 Page 3 of 8

marked and enclosed herewith as Annexure R-2.”

3.

The respondent hence claim credit of ₹20,33,046/- towards the

short supplies made at its different sites and admitted only an amount of

`7,34,851 as payable; hence alleges the claim being a disputed debt the

petition is not maintainable. The respondent relies upon its email dated

15.06.2016 which notes as under:-

4.

With above email the respondent has attached details of

handwritten debit notes on which a doubt is raised if could be a part of

email dated 15.06.2016, hence alleged to be created. Nevertheless all

debit notes are dated 31.03.2016, much after the supplies were made till

Oct-Nov-2013. From Nov’ 2013 till email dated 15.06.2016 there is not

even a letter or an email or any other correspondence made on behalf of

respondent qua short supply of goods. The respondent further relies upon

an annexure R-3 viz. a purchase order dated 10.07.2013 which contains a

warranty clause – which read as under:-

CO.PET. No.896 of 2016 Page 4 of 8

The respondent justify issuance of debit notes as late as on

31.03.2016 per the warranty clause above.

5.

The reliance upon the warranty clause is misplaced as it relates

only to quality of goods and not to short supply of material. Secondly

even if we believe that it covers short supply then also such objection

could have been raised within 15 months from 10.07.2013 which period