{"id":85687,"date":"2010-04-30T00:00:00","date_gmt":"2010-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-international-print-o-pac-vs-ms-maa-communication-bozell-p-on-30-april-2010"},"modified":"2016-12-05T17:32:55","modified_gmt":"2016-12-05T12:02:55","slug":"ms-international-print-o-pac-vs-ms-maa-communication-bozell-p-on-30-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-international-print-o-pac-vs-ms-maa-communication-bozell-p-on-30-april-2010","title":{"rendered":"M\/S. International Print-O-Pac … vs M\/S Maa Communication Bozell (P) … on 30 April, 2010"},"content":{"rendered":"
Delhi High Court<\/div>\n
M\/S. International Print-O-Pac … vs M\/S Maa Communication Bozell (P) … on 30 April, 2010<\/div>\n
Author: Reva Khetrapal<\/div>\n
                                         REPORTED\n*    IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                         DATE OF RESERVE: January 20, 2010\n                          DATE OF DECISION: April 30, 2010\n\n\n+                         RFA No.108\/2009\n\n\nM\/S. INTERNATIONAL PRINT-O-PAC LIMITED ..... Appellant\n                  Through: Mr.J. S. Bakshi with Mr. Amitesh\n                            S. Bakshi, Advocates.\n\n             versus\n\nM\/S MAA COMMUNICATION BOZELL (P) LTD        .... Respondent\n            Through: Mr. Shyam Moorjani with\n                     Ms. Anuradha Anand, Advocates.\n\nCORAM:\nHON'BLE MS. JUSTICE REVA KHETRAPAL\n\n1. Whether reporters of local papers may be allowed\n   to see the judgment?                                    NO\n\n2. To be referred to the Reporter or not?                  YES\n\n3. Whether judgment should be reported in Digest?          YES\n\n\n: REVA KHETRAPAL, J.\n<\/pre>\n
1.    This appeal is directed against the order dated 7 th November, 2008<\/p>\n
whereby the suit filed by the plaintiff for recovery of Rs.3,23,175\/- was<\/p>\n
dismissed.\n<\/p>\n
2.    The case of the plaintiff-Company (the appellant herein), as it<\/p>\n
emerges from the plaint, is that it is engaged in the business of printers<\/p>\n
and photolithographers amongst other business and has been carrying<\/p>\n
out the printing jobs as per the orders and specifications of the defendant<\/p>\n
RFA No. 108\/2009                                            Page 1 of 17<\/span>
\n (the respondent herein), for which bills were regularly raised against the<\/p>\n
defendant.    It is alleged that the defendant-company was making<\/p>\n
payment “on account”       and, as such there was a running account<\/p>\n
between the parties and that as per the books of accounts of the plaintiff-<\/p>\n
company, duly maintained and audited in the ordinary course of<\/p>\n
business, the defendant-company has not cleared the dues of the<\/p>\n
plaintiff-company to the extent of Rs.2,27,588.81. It is further alleged<\/p>\n
that the defendant has not cleared the aforesaid dues inspite of repeated<\/p>\n
requests, reminders and due service of a legal notice and as such it is<\/p>\n
liable to pay the aforesaid dues along with interest @ 21% per annum<\/p>\n
w.e.f. the date of each default, but for the sake of convenience, the<\/p>\n
plaintiff is claiming interest w.e.f. 12th July, 2001 till realization and<\/p>\n
accordingly, the amount of Rs.3,23,175.75 is due, which includes the<\/p>\n
principal amount of Rs.2,27,588.81 as well as the interest calculated<\/p>\n
from the said date till the date of the filing of the suit, in the sum of<\/p>\n
Rs.95,586.91.\n<\/p>\n
3.    The defendant in its written statement has taken a preliminary<\/p>\n
objection that the suit of the plaintiff is without any cause of action,<\/p>\n
inasmuch as the plaintiff in its alleged statement of accounts has<\/p>\n
depicted 41 bills for a total sum of Rs.7,69,737.22 against which the<\/p>\n
defendant has been shown to have made payment of Rs.5,42,148.70,<\/p>\n
leaving a balance of Rs.2,27,588.52 as still due and payable by the<\/p>\n
defendant, but no amount is due and payable against the aforesaid bills<\/p>\n
RFA No. 108\/2009                                            Page 2 of 17<\/span>
\n shown in the statement of account of the plaintiff and only a sum of<\/p>\n
Rs.4,478.60 is outstanding against the defendant, which amount is also<\/p>\n
not recoverable, being barred by limitation. It is submitted that there<\/p>\n
was no running account between the parties as alleged by the plaintiff<\/p>\n
and the payment was being made against each bill for the amount for<\/p>\n
which each bill was passed.\n<\/p>\n
4.    It is further submitted by the defendant that the defendant used to<\/p>\n
place orders on the plaintiff sometimes orally and sometimes otherwise,<\/p>\n
for doing certain printing jobs on behalf of the customers of the<\/p>\n
defendant.   Thereafter, the plaintiff used to send the bill and after<\/p>\n
verification of the bill, the defendant used to realize the payment only for<\/p>\n
the actual job done by the plaintiff, after deducting the necessary amount<\/p>\n
against the rejection etc. from the said bills.   Many a times, when the<\/p>\n
work carried out by the plaintiff was not as per the specifications and to<\/p>\n
the satisfaction of the customers of the defendant, on whose behalf the<\/p>\n
said orders were placed, the defendant used to reject the said bills or<\/p>\n
make deductions therefrom, and the plaintiff was informed accordingly.<\/p>\n
Further, out of the 41 bills submitted by the plaintiff, 5 bills totalling<\/p>\n
Rs.2,23,190.87 were rejected by the defendant as the job done was not as<\/p>\n
per the specifications and against the remaining 36 bills amounting to<\/p>\n
Rs.5,46,627.25, the payment of Rs.5,42,148.70 was made to the plaintiff<\/p>\n
by the defendant. As such the amount claimed in the suit was not at all<\/p>\n
payable.\n<\/p>\n
RFA No. 108\/2009                                             Page 3 of 17<\/span>\n<\/p>\n
 5.    Another preliminary objection taken by the counsel for the<\/p>\n
defendant in its written statement is that the suit of the plaintiff is barred<\/p>\n
by limitation, even against the 5 bills bearing Nos. 151, 154, 683, 252<\/p>\n
and 263 totalling to Rs. 2,23,109.87, which were rejected by the<\/p>\n
defendant as the job carried out by the plaintiff was not as per the<\/p>\n
specifications. In any event, if the plaintiff had any grievance against<\/p>\n
the non-payment of the said bills, the suit should have been filed within<\/p>\n
three years of the date of the aforesaid bills. The plaintiffs not having<\/p>\n
filed the suit within the aforesaid period, the suit was barred by<\/p>\n
limitation.\n<\/p>\n
6.    Finally, it was submitted that as there was no running account<\/p>\n
between the parties and each and every bill gave rise to a separate cause<\/p>\n
of action, the suit was liable to be dismissed on account of misjoinder of<\/p>\n
the causes of action.\n<\/p>\n
7.    In the replication filed by the plaintiff, the said preliminary<\/p>\n
objections were denied by the plaintiff as also the averments made in the<\/p>\n
written statement and those made in the plaint were reiterated. On the<\/p>\n
pleadings of the parties, the following issues were framed for<\/p>\n
adjudication: –\n<\/p>\n
              (i)   Whether the suit is within limitation? (OPP)<\/p>\n<\/blockquote>\n
              (ii) Whether the defendant rejected five bills
\n              totalling Rs.2,23,190.87 paise as mentioned in
\n              preliminary objection no.1?             (OPD)<\/p>\n<\/blockquote>\n
              (iii) Whether the suit is bad for misjoinder of
\n              cause of action?                         (OPD)<\/p>\n
RFA No. 108\/2009                                              Page 4 of 17<\/span>\n<\/p><\/blockquote>\n
              (iv) Whether the suit has been signed, verified
\n             and filed by competent person?         (OPP)<\/p>\n<\/blockquote>\n
             (v) Whether the plaintiff is entitled to interest, if
\n             so at what rate?                            (OPP)<\/p>\n<\/blockquote>\n
             (vi)   Relief.\n<\/p><\/blockquote>\n
<\/blockquote>\n
8.    It is necessary to note at this juncture that the dismissal of the suit<\/p>\n
by the learned Trial Court is based entirely on issue no.1 and the<\/p>\n
remaining issues have not been adjudicated upon. It is also necessary to<\/p>\n
note that almost all the documents relied upon by the plaintiff to prove<\/p>\n
its case are not in dispute.     The said documents include the duly<\/p>\n
receipted office copies of the invoices – Ex.PW1\/4 to PW1\/100, the<\/p>\n
office copies of the letters dated 2nd June, 1999 and 6th March, 2001<\/p>\n
issued by the plaintiff to the defendant as Ex.PW1\/101 and Ex.PW1\/102,<\/p>\n
the office copy of the demand letter dated 18 th January, 2003 sent to the<\/p>\n
defendant as Ex.PW1\/103, proof of despatch and receipt thereof as<\/p>\n
Ex.PW1\/104, office copy of the legal notice sent to the defendant as<\/p>\n
Ex.PW1\/105 and its postal receipt, A.D. Card and UPC as Ex.PW1\/106<\/p>\n
to Ex.PW1\/108 respectively.\n<\/p>\n
9.    The plaintiff, in order to prove its case, produced the Manager<\/p>\n
(Accounts) of the plaintiff-company as PW1 while the defendant<\/p>\n
produced its authorised representative as DW1 in the witness-box. PW1,<\/p>\n
Mr. Ramesh Goyal, in the course of his cross-examination, admitted the<\/p>\n
documents produced by the defendant, Ex.PW1\/D1 and PW1\/D2. DW1<\/p>\n
RFA No. 108\/2009                                             Page 5 of 17<\/span>
\n in his evidence proved the document Ex.DW1\/1, which was already<\/p>\n
exhibited as Ex.PW1\/D2 in the cross-examination of the plaintiff.<\/p>\n
10.     Thus, both the plaintiff and the defendant admitted the document<\/p>\n
Ex.PW1\/D2. As a matter of fact, the plaintiff, in his cross-examination<\/p>\n
before the Trial Court unequivocally admitted as correct that the entire<\/p>\n
case of the plaintiff-company is based on Ex.PW1\/D1 and that the<\/p>\n
payments made by the defendant have been reflected in the document<\/p>\n
Ex.PW1\/D2 from point A to point B.              He, however, denied the<\/p>\n
suggestion that the bills shown from point C to point D in Ex.PW1\/D2<\/p>\n
were correctly rejected by the defendant as also the suggestion that<\/p>\n
Ex.PW1\/3 was a manufactured document.\n<\/p>\n
11.     On the other hand, DW1, Mohd. Faruk Hossain, Senior Executive<\/p>\n
Accounts with the defendant-Company, in the course of his cross-<\/p>\n
examination, admitted that the defendant has no written document<\/p>\n
signifying the alleged rejection of the 5 bills, but he denied the<\/p>\n
suggestion that the payment was “on account” or that there was a<\/p>\n
running account between the parties.           Significantly, however, he<\/p>\n
admitted that in the         document Ex. PW1\/D2, in certain entries, the<\/p>\n
complete payment has not been made bill-wise even in respect of the<\/p>\n
amount which was stated to have been passed by the defendant-company<\/p>\n
against a particular bill.\n<\/p>\n
12.     With this evidence on record, the learned Trial Court concluded<\/p>\n
that:\n<\/p>\n
RFA No. 108\/2009                                            Page 6 of 17<\/span>\n<\/p>\n
               “There was no running account between the parties
\n             so as to say that the period of limitation did not
\n             expire and the liability was continuing and from
\n             this point of view, each bill was a separate cause of
\n             action and such claims of the plaintiff against the
\n             41 bills, on the date of the suit, was barred by
\n             time.”<\/p><\/blockquote>\n
        Having held so, the learned Trial Court, as stated above,<\/p>\n
dismissed the suit.\n<\/p>\n
13.    The learned counsel for the appellant, Mr. J.S., Bakshi contended<\/p>\n
that   Ex.PW1\/D1      shows    the   41    bills   which   were     totalling<\/p>\n
Rs.7,69,737.22p for the duration 15.05.1998 to 15.03.1999 and against<\/p>\n
the said outstanding amount, an amount of Rs.5,42,148.70 was received<\/p>\n
“on account” by way of six cheques on 16.02.1999, 23.02.2000,<\/p>\n
20.04.2000, 04.07.2000, 08.01.2001 and 12.07.2001.              He further<\/p>\n
contended that as per law, the original limitation was three years from<\/p>\n
the date of the last bill i.e. 15.03.1999 but due to the part payments being<\/p>\n
made within the period of 3 years thereof, the last payment being on<\/p>\n
12.07.2001, the limitation period stood extended to three years beyond<\/p>\n
12.07.2001 i.e. till 11.07.2004 and the suit was filed on 18.07.2003. In<\/p>\n
this regard reliance was placed by the counsel for the appellant on the<\/p>\n
decisions rendered in the cases reported as F.C.C. Projects Pvt. Ltd. Vs.<\/p>\n
Ashish Bhardwaj 145 (2007) DLT 457 (DB); Rajesh Kumari vs. Prem<\/p>\n
Chand Jain<\/a> 67 (1997) DLT 502; Technofab Engineering Ltd. Vs.<\/p>\n
Nuchem Weir India Ltd. 136 (2007) DLT 223; Bharat Electronics Ltd.<\/p>\n
Vs. Stejac Enterprises (P) Ltd. 82 (1999) DLT 78; J.K. Lakshmi<\/p>\n
RFA No. 108\/2009                                             Page 7 of 17<\/span>
\n Cement Ltd. Vs. Namit Plastic (P) Ltd. & Ors. 160 (2009) DLT 340<\/p>\n
and The Motor & General Finance Ltd. Vs. T.K. George & Anr. 95<\/p>\n
(2002) DLT 350.\n<\/p>\n
14.         Mr. Bakshi further contended that the defendant no.1 filed<\/p>\n
Ex.PW1\/D2 admitting the bills, but stating that the 5 bills bearing no.<\/p>\n
151, 154, 683, 252 and 263 were rejected. Neither any evidence of the<\/p>\n
alleged rejection nor any particulars in this regard were given, whereas,<\/p>\n
as per the invoices the said rejection was to be made within three days.<\/p>\n
For the aforesaid purpose, Mr. Bakshi, referred to the invoices being<\/p>\n
Ex.PW1\/4 to Ex.PW1\/100 wherein it was inter alia stated as under: –<\/p>\n
                 “Certified that the goods are in order & rates
\n                 agreed. Any discrepancy in this invoice should be
\n                 brought to our notice within 3 days. Otherwise we
\n                 would not be responsible for the same.”<\/p>\n<\/blockquote>\n
15.         In support of his contention that there was a running account<\/p>\n
between the parties, the learned counsel for the appellant relied upon the<\/p>\n
alleged bill-wise payment of the six cheques, as set out by the<\/p>\n
respondent in Ex.PW1\/D2, a bare glance at which, he stated, amply<\/p>\n
demonstrated that no cheque matched any particular invoice and the<\/p>\n
payments were “on account”. The details of the same are as under:<\/p>\n
      (i)     Cheque no. 955369 dated 16.02.1999 for Rs.1,00,000\/- shows<\/p>\n
              payment for 3 bills for Rs.20,464; 23,692 and 55,675 which<\/p>\n
              totals to Rs.99,831 and another amount of Rs.169 is shown<\/p>\n
              paid towards bill no.355 dated 30.11.1998 passed for Rs.5100.<\/p>\n
RFA No. 108\/2009                                             Page 8 of 17<\/span>
\n                 But only a sum of Rs.452.40p is paid vide cheque no. 770332<\/p>\n
                dated 12.07.2001, what happened to the balance amount has<\/p>\n
                not been explained.\n<\/p><\/blockquote>\n
      (ii)     Cheque No. 375087 dated 20.04.2000 for Rs. 1,11,301.70<\/p>\n
                shows payment of four bills for Rs. 10411.42; Rs.4050.49;<\/p>\n
                7151.79; 80,750\/- and part payment of two bills 258 and 251<\/p>\n
                passed for Rs. 5525\/- and 18700\/- by making part payment for<\/p>\n
                Rs.890.28 and Rs. 8047.72\/- and part payment of the said two<\/p>\n
                bills of Rs.4634.72 and 10652.28 is stated to be made out of<\/p>\n
                cheque no. 770332 dated 12.07.2001.      So two bills dated<\/p>\n
                30.10.1998 passed in 1998 have been paid by two cheques one<\/p>\n
                dated 20.04.2000 and one dated 12.07.2001, which is<\/p>\n
                unbelievable.\n<\/p><\/blockquote>\n
      (iii)     Similar is the stand with respect to cheque no. 684683 dated<\/p>\n
                04.07.2000 for Rs.1,03,657; no. 759513 dated 08.01.2001 for<\/p>\n
                Rs. 1,00,000\/- and 770332 dated 12.07.2001 for Rs.52,190\/-.<\/p>\n<\/blockquote>\n
16.          It is also contended by the learned counsel that an attempt had<\/p>\n
been made to match the value of 5 invoices to total these to Rs.75,000\/-<\/p>\n
in respect of cheque 375053 dated 23.02.2000 for Rs.75,000\/- but it has<\/p>\n
not been explained as to how against bill no.126 dated 16.02.1999 for<\/p>\n
Rs. 3046.40 (Ex.PW1\/98), Rs.159.65 only was paid by Cheque No.<\/p>\n
375053.\n<\/p>\n
RFA No. 108\/2009                                               Page 9 of 17<\/span>\n<\/p>\n
 17.   Mr. Bakshi, learned counsel for the appellant further contended<\/p>\n
that there was no denial of the receipt of letters of demand as well as to<\/p>\n
the receipt of the legal notice in the written statement and thus, the<\/p>\n
documents Ex.PW1\/101 to Ex.PW1\/108 stood proved. It is also not in<\/p>\n
dispute that no response was sent by the respondent to the appellant’s<\/p>\n
aforesaid letters of demand and the legal notice. Thus, the learned<\/p>\n
counsel for the appellant contended that adverse inference ought to be<\/p>\n
drawn against the respondent.       He further contended that adverse<\/p>\n
inference deserves to be drawn against the respondent also for the reason<\/p>\n
that inspite of the appellant’s notice to produce the documents<\/p>\n
mentioned therein, Ex.PW1\/B, including the books of accounts, the<\/p>\n
respondent chose not to produce the books of account, which were in its<\/p>\n
power and possession.\n<\/p>\n
18.   The learned counsel for the respondent, Mr. Shyam Moorjani, on<\/p>\n
the other hand, fully supported the judgment rendered by the learned<\/p>\n
Trial Court. He contended that the fact that in Ex.PW1\/D1 the words<\/p>\n
used were “Pending bills” fully demonstrated that there was no running<\/p>\n
account between the parties. Each and every bill thus gave rise to a<\/p>\n
separate cause of action and the suit was, therefore, bad for misjoinder of<\/p>\n
causes of action, apart from being barred by limitation.<\/p>\n
19.   Having heard the learned counsel for the parties and gone through<\/p>\n
the records, I am of the considered opinion that the judgment of the<\/p>\n
learned Trial Court cannot be sustained. It is not in dispute and indeed it<\/p>\n
RFA No. 108\/2009                                            Page 10 of 17<\/span>
\n is the admitted position that the last payment was made by the defendant<\/p>\n
to the plaintiff by cheque no.770332 dated 12.7.2001. This is also borne<\/p>\n
out by the document Ex.PW1\/D2 and, at the risk of repetition, it is stated<\/p>\n
that the said document was produced by the respondent itself and<\/p>\n
enclosed as Annexure “A” to the written statement. This being so, the<\/p>\n
answer to the question whether the suit is barred by limitation or is<\/p>\n
within limitation, has to be found in Section 19 of the Limitation Act,<\/p>\n
1963 which is not even adverted to by the learned Trial Court. The<\/p>\n
relevant part of Section 19 of the Limitation Act, 1963 reads as follow: –<\/p>\n
             “19. Effect of payment on account of debt or of
\n             interest on legacy.- Where payment on account of
\n             a debt or of interest on a legacy is made before the
\n             expiration of the prescribed period by the person
\n             liable to pay the debt or legacy or by his agent duly
\n             authorised in this behalf, a fresh period of limitation
\n             shall be computed from the time when the payment
\n             was made…..”\n<\/p><\/blockquote>\n
<\/blockquote>\n
20.   This court in the case of Rajesh Kumari (supra) held that “a<\/p>\n
payment by cheque satisfies the requirement of Section 19, in as much as<\/p>\n
the acknowledgment of payment appears in the handwriting of or in a<\/p>\n
writing signed by the person making the payment in the form of a<\/p>\n
cheque.” In the said case, it was further clarified that on the language of<\/p>\n
Section 19 itself, it is clear that the payment may be made either against<\/p>\n
the principal or on account of the interest. In either case, the payment<\/p>\n
will be on account of the debt, which is all that the provision requires.<\/p>\n
Once “payment by cheque” is accepted by the plaintiff, the plaintiff will<\/p>\n
RFA No. 108\/2009                                             Page 11 of 17<\/span>
\n be entitled to the extended period of limitation under Section 19 of the<\/p>\n
Limitation Act, 1963 and the said advantage cannot be wiped off or<\/p>\n
undone by the tortuous act of the defendant withholding the payment of<\/p>\n
the cheque. It was also observed that it is settled that “this provison is to<\/p>\n
be interpreted liberally so as to save the suits from being barred by<\/p>\n
limitation so long as its benefits can reasonably be extended to assist a<\/p>\n
claim, otherwise legal and sustainable.\n<\/p>\n
21.   In the case of Technofab Engineering Ltd. (supra), a learned<\/p>\n
Single Judge of this Court, relying upon the earlier judgment of this<\/p>\n
Court in Rajesh Kumari’s case held that when payment on account of<\/p>\n
debt or of interest on a legacy is made before expiration of the prescribed<\/p>\n
period by the person liable to pay the debt or by an agent duly authorised<\/p>\n
on his behalf, a fresh period of limitation shall be computed from the<\/p>\n
time when the payment is made.\n<\/p>\n
22.   In the case reported as J.K. Lakshmi Cement Ltd. (supra) it was<\/p>\n
held that the period of limitation shall be computed from the date of<\/p>\n
invoices by which goods were sold and delivered by the plaintiff to the<\/p>\n
defendant, but where there is an acknowledgment in writing of the<\/p>\n
amount due to the plaintiff by the defendant or on account of part<\/p>\n
payment of the amount due from the defendants to the plaintiff, the<\/p>\n
period of limitation shall stand extended for filing the suit in accordance<\/p>\n
with the provisions of the Limitation Act, 1963.\n<\/p>\n
RFA No. 108\/2009                                             Page 12 of 17<\/span>\n<\/p>\n
 23.   Likewise, in the decisions rendered      in the cases of    Bharat<\/p>\n
Electronics Ltd.; The Motor & General Finance Ltd. and F.C.C.<\/p>\n
Projects Pvt. Ltd. (supra), this Court held that a part payment made by<\/p>\n
the debtor to the creditor would tantamount to the acknowledgement of<\/p>\n
the amount and a fresh period of limitation shall be computed from the<\/p>\n
date when the last payment is stated to have been made.<\/p>\n
24.   In view of the aforesaid, it must be held that a fresh period of<\/p>\n
limitation would commence from the date the cheque was issued in part-<\/p>\n
payment of the dues of the plaintiff i.e. on 12.07.2001, in view of the<\/p>\n
provisions of Section 19 of the Limitation Act, 1963. The learned Trial<\/p>\n
Court has not considered the said provision and thus, its findings<\/p>\n
recorded on the issue no.1 are wholly unsustainable and are accordingly<\/p>\n
set aside.\n<\/p>\n
Issue No.2<\/p>\n
25.   The learned counsel for the appellant contended that there is not<\/p>\n
an iota of evidence on record to show that the respondent had rejected<\/p>\n
the five bills amounting to Rs.2,23,190.87, as mentioned in Preliminary<\/p>\n
Objection no.1. The onus of proving this issue was placed upon the<\/p>\n
respondent which the respondent has miserably failed to discharge. No<\/p>\n
evidence of the alleged rejection nor any particulars in that regard have<\/p>\n
been furnished. It is not even stated as to when the said bills were<\/p>\n
rejected. No proof of the reason for such a rejection is forthcoming on<\/p>\n
RFA No. 108\/2009                                          Page 13 of 17<\/span>
\n the record and in his cross-examination DW1 has admitted that there is<\/p>\n
nothing on record to show such a rejection.\n<\/p>\n
26.   The learned counsel for the appellant also pointed out that<\/p>\n
according to the convenant between the parties, the bills were to be<\/p>\n
rejected latest within three days of the supply of the goods. Reference in<\/p>\n
this regard was made by the learned counsel to the following condition<\/p>\n
in each and every one of the invoices exhibited as Ex.PW1\/4 to<\/p>\n
Ex.PW1\/100:\n<\/p>\n
              “Certified that the goods are in order and rates
\n             agreed. Any discrepancy in this invoice should be
\n             brought to our notice within three days. Otherwise,
\n             we would not be responsible for the same.”<\/p>\n<\/blockquote>\n
27.   Clearly, in my opinion, the respondent has not even cared to state<\/p>\n
when the bills were rejected and whether the said rejection was<\/p>\n
communicated to the appellant. DW1, Mohd. Faruk Hossain, during his<\/p>\n
cross-examination has conceded that the respondent-Company has no<\/p>\n
written document signifying the alleged rejection. The assertion that five<\/p>\n
of the bills were rejected was made for the first time by the respondent in<\/p>\n
their written statement filed on 2nd July, 2004, stating therein that the<\/p>\n
five bills totalling to Rs.2,23,190\/87 were rejected as the job done was<\/p>\n
not as per specifications. It has not even been elaborated as how the job<\/p>\n
done was not as per specifications and whether the goods in question<\/p>\n
were retained by the respondent or returned back to the appellant. Thus,<\/p>\n
the bald assertion made by the respondent that five bills were rejected as<\/p>\n
RFA No. 108\/2009                                            Page 14 of 17<\/span>
\n the job done was not according to the specifications cannot be given any<\/p>\n
credence.\n<\/p>\n
28.   Issue no.2 is accordingly decided in favour of the appellant and<\/p>\n
against the respondent.\n<\/p>\n
Issue No. 3<\/span><\/p>\n
29.   The onus of proving this issue was on the respondent which also<\/p>\n
the respondent has failed to discharge. It was for the respondent to<\/p>\n
produce its books of account to show that there was a misjoinder of the<\/p>\n
causes of action, but inspite of the notice under Order XXII Rule 8 CPC,<\/p>\n
exhibited as Ex.PW1\/B, having been served on the respondents to<\/p>\n
produce all their books of account, the respondent did not care to<\/p>\n
produce them. Even in the course of the arguments, the learned counsel<\/p>\n
for the respondent was not able to substantiate the contention of the<\/p>\n
respondent-company that there was any misjoinder of the causes of<\/p>\n
action.\n<\/p>\n
30.   Issue no.3 is accordingly decided in favour of the appellant and<\/p>\n
against the respondent.\n<\/p>\n
Issue No.4<\/p>\n
31.   As regards the issue no.4, PW1 Ramesh Goyal, in his affidavit by<\/p>\n
way of evidence, (Ex.PW1\/A), stated that he is the Manager (Accounts)<\/p>\n
and as such an authorised signatory of the appellant-Company. It is<\/p>\n
further deposed by him that the appellant-Company is a public limited<\/p>\n
company duly incorporated under the Companies Act, having its<\/p>\n
RFA No. 108\/2009                                         Page 15 of 17<\/span>
\n registered office at B-204-205, Okhla Industrial Area, Phase-I, New<\/p>\n
Delhi-110020, and that true copies of the Certificate of Incorporation are<\/p>\n
exhibited as Ex.PW1\/1 (collectively). PW1 Sh. Ramesh Goyal further<\/p>\n
deposed that he is one of the principal officers of the company and as<\/p>\n
such fully competent, authorised and empowered to act on behalf of the<\/p>\n
company, institute suits, sign, verify and prosecute all complaints,<\/p>\n
plaints, pleadings etc. on behalf of the appellant-company as also to<\/p>\n
engage lawyers for the said purpose and to do all acts necessary for the<\/p>\n
effective prosecution of the case. A true copy of the extract of the<\/p>\n
meeting of the Board of Directors of the appellant-company dated 20th<\/p>\n
May, 2002 authorising him to act on behalf of the company has been<\/p>\n
proved on record by him as Ex.PW1\/2. In the course of the arguments, a<\/p>\n
somewhat feeble and half-hearted attempt was made by the learned<\/p>\n
counsel for the respondent to contend that the suit had not been signed,<\/p>\n
verified and filed by a competent person on behalf of the appellant-<\/p>\n
company, but no cogent reason for the same was put forth. Accordingly,<\/p>\n
this issue is also decided in favour of the appellant and against the<\/p>\n
respondent.\n<\/p>\n
Issue Nos. 5 and 6<\/span><\/p>\n
32.   In view of my findings on issues no.1 to 4, the appellant must be<\/p>\n
held entitled to recover the sum of Rs.2,27,588.81, which was due and<\/p>\n
outstanding against the respondent as on 12th July, 2001. The document<\/p>\n
mentioned as Ex.DW1\/1 has been proved in evidence by the sole<\/p>\n
RFA No. 108\/2009                                           Page 16 of 17<\/span>
\n witness of the respondent i.e. DW1- Mohd. Faruk Hossain and was also<\/p>\n
exhibited in the course of cross-examination of PW1 as Ex.PW1\/D2.<\/p>\n
The said document, in my considered opinion, clinches the matter being<\/p>\n
a statement of accounts filed by the respondent itself, showing the<\/p>\n
amount due to the appellant. The portion C to D of the said document<\/p>\n
which appears at the bottom of the document and shows the bills<\/p>\n
rejected and not passed for payment, as stated above, cannot be believed.<\/p>\n
Accordingly, the appellant is held entitled to recover the sum of<\/p>\n
Rs.2,27,588.81 being the principal amount of the unpaid bills.<\/p>\n
33.   As regards the award of interest, though the invoices set out that<\/p>\n
interest @ 21 % per annum will be charged if the bill is not paid on the<\/p>\n
due date, keeping in view the prevalent rate of interest, the appellant is<\/p>\n
awarded interest @ 12% per annum with effect from 12.07.2001 till the<\/p>\n
date of realisation.\n<\/p>\n
34.   The appeal stands allowed. The impugned order is set aside.<\/p>\n
There will be no order as to costs.\n<\/p>\n<\/p>\n
                                                  REVA KHETRAPAL
\n                                                     (JUDGE)
\nApril 30, 2010
\nsk<\/p>\n
RFA No. 108\/2009                                           Page 17 of 17<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M\/S. International Print-O-Pac … vs M\/S Maa Communication Bozell (P) … on 30 April, 2010 Author: Reva Khetrapal REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % DATE OF RESERVE: January 20, 2010 DATE OF DECISION: April 30, 2010 + RFA No.108\/2009 M\/S. INTERNATIONAL PRINT-O-PAC LIMITED ….. Appellant Through: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-85687","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM\/S. 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