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High Court Of Delhi|04 January, 2013


I.A. No.22213/2012 (for preponment)
For the reasons stated in the application; the same is allowed. The date of 25th March, 2013 is cancelled and the suit is taken up on board for hearing.
The application stands disposed of.
CS(OS) 1952/2010
1. This suit for recovery of Rs.27,80,000/- with pendente lite and future interest @ 18% per annum, though initially filed under Order XXXVII of CPC, was vide order dated 18th August, 2011 ordered to be treated as an ordinary suit. Recovery of money is sought from the two defendants jointly and severally. Defendant No.1 is stated to be a partnership firm of which defendant No.2 is a partner. Summons sent to the defendant No.2 were served through his wife as noted in the order dated 20th January, 2011. Vide order dated 7th March, 2011, defendant No.1 was also ordered to be served through the defendant No.2. The order dated 18th August, 2011 records that the defendant No.1 had been served though the defendant No.2. Since none appeared for either of the defendants inspite of service, they were vide order dated 17th April, 2012 proceeded against ex-parte and the plaintiff directed to lead ex-parte evidence.
2. The plaintiff has filed the affidavit by way of examination-in-chief of its partner Mr. Manish Saraff which was tendered into evidence and the exhibit marks Ex.PW1/1 to Ex.PW1/183 were put on the documents referred to therein and proved in evidence before the Joint Registrar. None appeared for the defendants to cross-examine the said witness of the plaintiff and none has appeared for the defendants today also.
3. The ex-parte arguments of the counsel for the plaintiff have been heard.
4. The plaintiff in its evidence has proved:
(i) that the plaintiff is a registered partnership firm and Mr. Manish Saraff, who has instituted the suit, signed and verified the plaint on behalf of the plaintiff is the registered partner;
(ii) that the plaintiff had entered into an agreement dated 1st December, 2003 with the defendant No.1 and which was signed by the defendant No.2 as partner of defendant No.1; the plaintiff under the said agreement was appointed as the sole Distributor in Delhi of the goods of the defendants;
(iii) that the plaintiff in pursuance to the said agreement paid a total sum of Rs.18,01,000/- to the defendant No.1. The receipts of the said amount have been proved;
(iv) that the defendants supplied goods for Rs.9,98,503.20 only to the plaintiff; invoices of supply of goods have been proved;
(v) that a sum of Rs.8,02,496.80 out of the advance of Rs.18,01,000/- thus remained outstanding;
(vi) that in terms of the agreement aforesaid, goods of the value of Rs.2,21,184/- were returned by the plaintiff to the defendants. Receipts of return of goods and invoices showing value thereof have been proved;
(vii) that the defendants delivered goods of the value of Rs.5,60,824/- to third parties purportedly on behalf of the plaintiff and received the price thereof in their own name. Invoices in this regard have also been proved;
(viii) that goods of the value of Rs.1,75,176/- out of the goods of the value of Rs. 9,98,503.20 supplied by the defendants to the plaintiff remained unsold and the plaintiff in terms of the agreement offered to return the same but the same were not received back by the defendants. The notice by which the goods were so offered back has been proved and it is un-rebutted evidence of the plaintiff that the same remained unsold. The plaintiff is thus entitled to the said amount also;
(ix) the plaintiff is thus entitled to Rs. 8,02,496/- + Rs.2,21,184/- + Rs.1,75,176/- i.e. a total sum of Rs.11,98,856/-.
5. Though, the plaintiff in the plaint and in the evidence has also claimed a further sum of Rs.5,60,824/- being the price of the goods directly supplied by the defendants to the third parties but there is no basis for the said claim of the plaintiff. The counsel for the plaintiff also is unable to explain as to how and why the plaintiff is entitled to the said amount. The same is accordingly rejected.
6. Though, the defendants are ex-parte but the issue of limitation is taken up. The transactions between the parties admittedly ceased on 12th December, 2004 and the unsold goods were also offered back vide notice dated 30th October, 2006. The present suit has been filed in August, 2010. It is however the plea and evidence of the plaintiff that the plaintiff had in 2007 i.e. within the period of limitation filed CS (OS) No.425/2007 for recovery of the same amount but which was on 30th July, 2010 withdrawn owing to the formal defect of the plaintiff firm being unregistered then and with liberty to file a fresh suit in respect of the same cause of action. The said order dated 30th July, 2010 has been proved as Ex. PW1/183. Counsel for the plaintiff has relied on Haldiram Bhujiawala Vs. Anand Kumar Deepak Kumar (2000) 3 SCC 250 (para 26) contending that defect of non- registration under the partnership law is a formal defect within the meaning of Section 14 of the Limitation Act, 1963 and the plaintiff is entitled to exclusion of time. It is the case of the plaintiff that it was bona fide proceeding with the earlier suit which was within limitation. It is further argued that the present suit was filed within one month of the withdrawal of the earlier suit. It is yet further argued that though the defendants had filed for leave to defend the earlier suit but had not taken the plea of the suit being not maintainable for the reason of non-registration of the plaintiff firm and the said plea was taken at the time of arguments in the year 2010 only and owing whereto the suit was withdrawn. Counsel for the plaintiff invokes Section 14 of the Limitation Act.
7. Considering that the defendants inspite of service have not chosen to contest the present suit, merit is found in the aforesaid plea and the same is accepted. The plaintiff is accordingly held entitled to exclusion of the time spent in pursuing the earlier suit which was ultimately withdrawn for the formal defect of non-registration of the plaintiff firm. The plaintiff is also found to have acted with promptitude thereafter in getting the firm registered and instituting the present suit.
8. Accordingly, the suit is partly allowed / decreed. The plaintiff is found entitled to a decree in the principal sum of Rs.11,98,856/- against the defendants jointly and severally. Though the plaintiff has claimed interest preceding the institution of the suit and pendente lite and future interest @ 18% per annum but in the entirety of the facts and considering that the plaintiff was to blame for the failure of the earlier suit, the prayer for interest prior to the institution of the suit is denied and the interest pendete lite and future is restricted to 10% per annum. The plaintiff shall also be entitled to costs in accordance with the schedule.
The decree sheet be prepared accordingly.
JANUARY 04, 2013 bs
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High Court Of Delhi

04 January, 2013