IN THE COURT OF SH.x ; LD. CIVIL JUDGE; CENTRAL DIST.; TIS HAZARI COURTS, DELHI.

CS NO.x.

IN THE MATTER OF:-

x.                          : PLAINTIFF

VERSUS

xx                                            : DEFENDANT

N.D.O.H.: …...08.2024

REPLICATION ON BEHALF OF THE PLAINTIFF TO THE WRITTEN STATEMENT FILED BY THE DEFENDANT TO THE SUIT FILED BY THE PLAINTIFF.

MOST RESPECTFULLY SHOWETH:-

1.                 That the present Replication is filed on behalf of the plaintiff in reply to Written Statement filed by answering Defendant. It is stated that the Defendant has made libelous and slanderous allegations in their written statement against the plaintiff and the plaintiff reserves their right to initiate the legal action as warranted under the law against the answering Defendant.

2.                 Without prejudice to the foregoing and without in any manner admitting any of the submissions, contentions and allegations made in the Written Statement by answering Defendant save and except those expressly admitted, the plaintiff is tendering its replication to the written statement as under:-

REPLY TO PRELIMINARY OBJECTIONS:-

1.                 That the contents of para 1 of the preliminary objections are wrong and denied. It is denied that the present Summary Suit instituted by the Plaintiff is meritless as the plaintiff has no Locus Standi to file the present suit against the answering defendant.

2.                 That the contents of para 2 of the preliminary objections are wrong and denied. It is denied that the suit of the plaintiff is not maintainable in the eyes of law as the same is barred by law of limitation and as such the suit is liable to be dismissed being filed by plaintiff after expiry of prescribed time.

3.                 That the contents of para 3 of the preliminary objections are wrong and denied. It is denied that the business transactions was took place in the year of 2018 and the present suit is filed by the counsel of plaintiff in the year of 2023 which after expiry of prescribed limitation period i.e. after more than two year with concocted clever drafting or legal manoeuvring.

4.                 That the contents of para 4 of the preliminary objections are wrong and denied. It is denied that the plaintiff could have filed the suit within three years from the date of business transection i.e. 2018 and since the plaintiff has filed the present suit after expiry of two years therefore the suit of the plaintiff is barred by Law of Limitation and is liable to be dismissed out rightly.

5.                 That the contents of para 5 of the preliminary objections are wrong and denied. It is denied that the legal notice sent by the plaintiff is infructuous itself as the same is sent by the plaintiff after the expiry of three years from the date of business transactions, hence, the notice sent by the plaintiff is not maintainable in the eye of law being time barred.

6.                 That the contents of para 6 of the preliminary objections are wrong and denied. It is denied that the plaintiff has not come before this Hon'ble Court with clean hands and has suppressed true and correct material facts by stating that the defendant has not made payment. It is further denied that the plaintiff has not completed his order on time and infact, defendant had sent nun1erous reminders through telephonically and his e-mail for knowing the actual status of order. It is further denied that the defendant had also charged the LD @ 5% per week of total order of total value from the Plaintiff vide e-mail dated 01.10.2018. It is further denied that the order was cancelled by Xxxxx. as the plaintiff failed to supply the goods to the Defendant on time.

7.                 That the contents of para 7 of the preliminary objections are wrong and denied. It is denied that it is the defendant faced business loss and reputation in the market due to not delivery of goods by the plaintiff on time, hence in view of the above said defendant has no liability towards the plaintiff.

8.                 That the contents of para 8 of the preliminary objections are wrong and denied. It is denied that the averment made by plaintiff in the suit are concocted and baseless and even, the plaintiff has not come before this Hon'ble Court with clean hands and has suppressed true and correct material facts.

9.                 That the contents of para 9 of the preliminary objections are wrong and denied. It is denied that the plaintiff has allegedly got served first legal notice through his counsel on 08.12.2020 and in the alleged notice the plaintiff has cleverly concealed the true fact that when the demand/ order was placed by the defendant and when in actually plaintiff delivered/ send the goods to the defendant. It is further denied that in the entire E-mails annexed by the plaintiff it is nowhere mentioned that how and when the order was made and when the delivery of goods was done to the defendant just to arose the unnecessary cause of action with twisted facts in favor for the plaintiff, hence the suit is liable to be dismissed.

10.             That the contents of para 10 of the preliminary objections are wrong and denied. It is denied that the plaintiff could have filed the present suit if aggrieved within the prescribed limitation period of three years i.e. since 2018 till 2021 and the plaintiff had filed the suit after the expiry period of limitation therefore the suit of plaintiff is liable to dismissed.

11.             That the contents of para 11 of the preliminary objections are wrong and denied. It is denied that since the plaintiff has failed to fulfil his part of contract as Plaintiff had not delivered the goods to the defendant on time and the plaintiff is not entitled for amount claimed which stood forfeited and as such there is no question of any interest as claimed by the plaintiff in his suit.

12.             That the contents of para 12 of the preliminary objections are wrong and denied. It is denied that the plaintiff has concealed the material facts from this Hon'ble Court. It is further denied that the suit of the plaintiff is based upon totally false, incorrect and frivolous facts, the suit is untenable and is liable to be dismissed.

13.             That the contents of para 13 of the preliminary objections are wrong and denied. It is denied that however, owing to delay of more than 4 to 5 months on the part of Plaintiff company, the consignment of Defendant got cancelled from the company to which the goods were proposed to be exported.

REPLICATION TO THE REPLY ON MERITS:-

1-2.   That the contents of paras 1-2 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct.

3.       That the contents of para 3 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that the Defendant is the sole proprietor of M/s Xxxxx, and the captioned suit has been filed by the Plaintiff against the Defendant in lieu of the default of the Defendant to make payment of the due and admitted amount. That despite categorically admitting its liability, the said Defendant has failed to make payment of the due amount to the Plaintiff, hence, the captioned suit.

4.       That the contents of para 4 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that initially, the Defendant made payments to the Plaintiff; however, over time, the Defendant chose to breach the said agreement and defaulted on payment of the due and admitted amount to the Plaintiff, despite giving numerous representations and assurances, thus prompting the mentioned suit. It is further denied that the Defendant made payments to the Plaintiff; however, over time, the Defendant chose to breach the said agreement and defaulted on payment of the due and admitted amount. It is submitted that the Defendant chose to breach the settlement agreement entered into & between the parties, and subsequently defaulted in payment of the due and admitted amount to the Plaintiff despite giving numerous representations and assurances, hence, the captioned suit. It is pertinent to mention that the Defendant had initially defaulted in payment of the due amount to the Plaintiff (against the supplies made by the Plaintiff), and subsequent to the Plaintiff sending a legal notice to the Defendant, the said Defendant chose to enter into a settlement agreement/understanding with the Plaintiff. That initially the Defendant made payments to the Plaintiff, however, with time chose to breach the said agreement and defaulted in payment of the due and admitted amount, hence, the captioned case has been filed under O37 against the Defendant.

5-6.   That the contents of paras 5-6 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that the defendant had also charged the LD @ 5% per week of total order of total value from the plaintiff vide E-mail dated 01.10.2018, infact, the order was cancelled by Xxxxx. as the plaintiff failed to supply the goods to the defendant on time. It is submitted that the Defendant had approached the Plaintiff Company requesting it the supply of goods on an urgent basis and that the Defendant gave numerous positive assurances and representations to the Plaintiff Company that the due payment will be immediately released on the delivery of the goods and raising of the invoice/bill.

7.       That the contents of para 7 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that the Defendant in light of the mutually accepted terms and conditions between the parties placed orders, and subsequently, against such orders placed the Plaintiff supplied the Defendant with the required goods as per its specifications and satisfaction accordingly. It is pertinent to mention herein that the Defendant without any protest or demur accepted the goods supplied by Plaintiff as the said goods were of utmost quality and in accordance with Defendant’s requirements and specifications. That the transaction took place between the parties on a continuous basis, and a business relationship was established between the parties which continued over the period of time, however, with time resulting out of the default of the Defendant the said business relationship was terminated.

8-9.   That the contents of paras 8-9 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that Plaintiff, subsequent to the delivery of the goods (including but not limited to pumps as per the specification and requirements of the Defendant), raised invoices upon the Defendant requesting it to make payment of the due amount. That the Defendant against the goods supplied to it made part payments to Plaintiff on a running basis, and the business transaction continued between the parties. It is pertinent to mention that with time the Defendant chose to initially delay and then default in remitting the payment of the due amount to Plaintiff by one way or the other as the said Defendant kept putting the matter on one pretext or the other.

10.     That the contents of para 10 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that the defendant had already given the payment of dishonoured cheque in cash to the plaintiff. It is submitted that during the course of transaction between the parties, the said Defendant towards the payment of the part due amount to the Plaintiff had also issued numerous postdated cheques in favor of Plaintiff, however, most of the said cheques as and when presented were dishonored.

11-12.         That the contents of paras 11-12 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that the plaintiff never sent the goods on time and infact, the plaintiff had sent defected goods to the defendant when defendant started charging LD to the plaintiff. It is further denied that when defendant raised the complaint to plaintiff for the defected goods then plaintiff refused to take back the defected goods from the defendant and started threatened the defendant. It is submitted that with time numerous issued were faced by the Plaintiff as the Defendant had failed to remit the payment of any amount whatsoever to the Plaintiff, hence, the Plaintiff terminated its business arrangement with the Defendant, and refused to supply any additional goods till the time the balance payment was not remitted to the said Plaintiff. That after numerous requests from Plaintiff the said Defendant for some time chose to make part payments to Plaintiff on a running basis, however with time it failed to make any payment whatsoever. That Plaintiff made numerous requests to the Defendant seeking payment of the due amount, however, to no success as the Defendant failed to consider the pleas of Plaintiff and chose to default in making the payment of the due amount.

13.     That the contents of para 13 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that with time an amount of/around Rs. 3,31,232/- was due and payable by the Defendant to the Plaintiff, however, the Defendant failed to make payment of the same, hence, having no other option and constrained by the unlawful acts committed by the Defendant the said Plaintiff had duly served upon the Defendant a Legal Notice dated 08.12.2020 vide which Plaintiff had categorically directed the Defendant to make the payment of the due and admitted amount (being Rs. 3,31,232/-, due on the date of the said Legal Notice). That after the receipt of the said Legal Notice, the Defendant initially chose to raise false and frivolous issues vide its email dated 04.01.2021, however, when the mischief being played by the Defendant was categorically highlighted vide email dated 27.01.2021 sent by the Plaintiff’s counsel to the Defendant), the Defendant chose to enter into settlement talks with the Plaintiff.

14-15.         That the contents of paras 14-15 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that the business transactions was took place in the year of 2018 and the present suit is filed by the counsel of plaintiff in the year of 2023 which after expiry of prescribed limitation period i.e. after more than two year with concocted clever drafting or legal manoeuvring. It is further denied that the email exchanged between the parties is nothing but to create a lame limitation period just to recover the concocted amount. It is submitted that vide email dated 27.01.2021 and 28.01.2021 the parties chose to enter into a settlement agreement/arrangement, and it was mutually decided between the parties that a) the Defendant shall be liable to make payment of an amount of Rs. 3,31,232/- (INR Three Lakh Thirty One Thousand Two Hundred and Thirty Two) to the Plaintiff vide 16 installments, starting from 27.01.2021 till 20.04.2022; and b) Should the Defendant default in making payment of the said amount and chose to breach the said settlement/ understanding between the parties, then the Defendant shall be liable to make payment of interest @18% p.a. from the date of the invoice till due date. That vide email dated 27.01.2021, a settlement agreement/arrangement was proposed by the Plaintiff’s counsel (under the Plaintiff’s instructions), and accordingly, vide email dated 28.01.2021 the Defendant admitted its liability to the tune of INR 3,31,232/- (INR Three Lakh Thirty One Thousand Two Hundred and Thirty Two), and assured the Plaintiff that complete amount will be paid to the Plaintiff vide installments by or before 30.04.2022. That the Defendant had assured the Plaintiff that it shall make payment of the complete amount of INR 3,31,232/- to the Plaintiff by or before 30.04.2022, and in lieu of the said arrangement the said Defendant had also remit part payment/remitted few installments.

16-17.         That the contents of paras 16-17 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that it was categorically admitted and undertaken by the Defendant that should the Defendant chose to default in payment of the above said total amount and/or any installment (as mutually agreed between the parties vide email dated 27.01.2021 & 28.01.2021 ), then the Plaintiff shall have the right to approach the Hon'ble Courts of Delhi seeking recovery of the total due amount along with agreed interest @ 18% p.a. till the date of payment. That despite the fact that the Defendant had categorically undertaken its liability and agreed to make payment of the complete due amount of INR 3,31,232/- by or before 30.04.2022, however, despite the same the Defendant chose to violate the mutually agreed terms between the parties as till date an amount of Rs. 2,46,347.80/- (Two Lakh Forty Six Thousand Three Hundred Forty Seven Rupees And Eighty Paisa) is still due and payable (hereinafter to be referred to as the “Due Amount”) by the Defendant, and the said amount is payable along with interest (to be calculated @18% p.a.) being payable starting from the due date and to be calculated till date of payment.

18-19.         That the contents of paras 18-19 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that despite numerous requests being made by the Defendant having mischievous and malaise intent from the start, have repudiated the requests of the Plaintiff seeking the payment of the Due Amount. That till date, the Plaintiff has been made to suffer huge financial losses including loss of opportunities consequential out of the non-payment of the Due Amount by the Defendant, and such has caused severe hardships to the Plaintiff for which the Defendant is solely and legally liable. That till date, the Plaintiff has made numerous attempts to contact the Defendant in every possible manner with the purview of amicably settling the matter, however without success. That the Defendant’s malafide conduct displays that the Defendant from the start, never had the intention of payment of the Due Amount. That it is pertinent to mention that all the Invoices were dully accepted and acknowledged by the Defendant, and no dispute whatsoever were raised regarding the goods supplied.

20-21.         That the contents of paras 20-21 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that the plaintiff company has contacted the defendant numerous times and also tried to meet the Defendant on several occasions, however, all such requests of the Plaintiff company were not entertained. That it is pertinent to mention that the Plaintiff company in lieu of the past business relationship with the Defendant, had chosen not to resort to any legal mechanism trusting that the due amount will be paid by the Defendant, along with the interest shortly, however, such trust of the Plaintiff company was broken by the Defendant.  That axiomatic fact emerged from the above clearly shows that the Defendant has cheated the Plaintiff company with dishonest and mala fide intentions. Thus, the Defendant has caused wrongful loss to the plaintiff and wrongful gains to itself, and has also committed offenses under Sections 406 and 420 along with several other provisions of the Indian Penal Code, 1860.

22-23.         That the contents of paras 22-23 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that the alleged agreement is void as the same is executed after the expiry of limitation. It is submitted that according to the ledger of the Plaintiff company, till date an amount of Rs. 2,46,347.80/- (Two Lakh Forty Six Thousand Three Hundred Forty Seven Rupees And Eighty Paisa) along with the interest at 18 (eighteen) %, is due and payable by the Defendant to the Plaintiff. That the captioned suit is based on a contract being entered into and established between the parties pursuant to emails exchanged between the parties dated 27.01.2021 and 28.01.2021, and in lieu of the said arrangement the said Defendant had made/remitted installments to the Plaintiff, hence, the said contract/settlement arrangement being binding on the parties. That the liability of the Due Amount is an admitted liability by the Defendant, and against the discharge of this liability the Defendant had even sent an email dated 23.06.2022 seeking additional time period from the Plaintiff.

24-25.         That the contents of paras 24-25 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that since the plaintiff has failed to fulfil his part of contract as plaintiff had not delivered the goods to the defendant on time and the plaintiff is not entitled for amount claimed which stood forfeited and as such there is no question of any interest as claimed by the plaintiff in his suit. It is submitted that the suit is within the limitation period as the settlement arrangement was entered into and between the parties on 28.01.2021 and vide the said settlement agreement the Defendant was under an obligation to make payment of the outstanding amount by or before 24.04.2022. That the last installment towards the said settlement amount was paid by the Defendant on/around 04.08.2021, and subsequent to that the Defendant failed to make any further payment, furthermore, the Defendant vide email dated 23.06.2022 admitted its default of the payment and sought additional time period for making the payment. Hence, in lieu of the same the captioned suit has been filed within the prescribed limitation period. The cause of action is a recurring once as the Defendant has failed to make payment of the due and admitted amount.

26.     That the contents of para 26 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is denied that no cause of action ever aroused in favour of plaintiff against defendant. It is submitted that within the jurisdiction of this Hon’ble Court the cause of action arose as the Plaintiff company supplied the goods to the transport carrier in Delhi for the purpose of delivery of the goods to the Defendant, and it further arose when the said goods were delivered to the Defendant by the said transport carrier. The cause of action further arose when the Plaintiff company raised invoices from its registered office (located within the jurisdiction of this Hon’ble Court) upon the Defendant seeking payment of the due amount, further, pursuant to such invoices it was mutually agreed between the parties that any and all disputes shall be solved and governed under and to the Delhi jurisdiction only, and as the Plaintiff’s registered office falls within the jurisdiction of this Hon’ble Court, hence, this Hon’ble Court has the jurisdiction. That the cause of action further arose within the jurisdiction of this Hon’ble Court when the Defendant made part and petty payments to the Plaintiff in its bank account within the jurisdiction of this Hon’ble Court. It further arose when the Defendant handed over the cheques to the Plaintiff company at their office for the discharge of their liability. That Defendant is under an obligation to make payment to Plaintiff at its registered office, and as same is located within this Court, hence, this Court has the jurisdiction. That further, no particular place of payment had been specified, either expressly and/or impliedly, hence, the Defendant was (and is) under an obligation to find/seek the Plaintiff and discharge its obligations towards payment to the Plaintiff at its registered office, and as the same is located within the jurisdiction of this Hon’ble Court, hence, pursuant to the principle of “debtor must seek creditor” this Hon’ble Court has the jurisdiction. That further, the cause of action also arose within this Hon’ble Court as orders were placed and processed through the registered office of the Plaintiff which falls within the jurisdiction of this Hon’ble Court, hence, the cause of action arose within the jurisdiction of this Hon’ble Court.

27-28.         That the contents of paras 27-28 of the reply are wrong and denied and those of the corresponding para of the suit are reiterated as correct. It is submitted that the suit claim falls within the pecuniary and territorial jurisdiction of this Hon’ble Court. Therefore, this Hon’ble Court has both territorial and pecuniary jurisdiction to try and decree the suit.

29.     That the contents of para 29 of the reply are matter of record, and those of the corresponding para of the suit are reiterated as correct.

It is denied that the present suit is not maintainable legally as relief sought by Plaintiff.

Prayer para clause para of the written statement are absolutely wrong and specifically denied with full particualrs and details word by word. The answering Defendant is not entitled to the relief claimed for.

Any allegation made in the written statement and are not specifically denied herein are absolutely wrong and specifically denied and its non-specifically denial shall not be taken as an admission on the part of the Plaintiff.

PRAYER:-

          It is therefore most respectfully prayed that the relief may kindly be granted in favour of the Plaintiff and against the Defendant as prayed in the main suit, in the interest of justice, equity and circumstances of the case.

Pass such further order or orders as this Hon’ble Court may deem fit and proper of the facts and circumstances of the case, in the interest of justice.

It is prayed accordingly.

DELHI                                                                 PLAINTIFF

THROUGH

DATED:

x

IN THE COURT OF SH. AJEET NARAYAN; LD. CIVIL JUDGE; CENTRAL DIST.; TIS HAZARI COURTS, DELHI.

CS NO. x

IN THE MATTER OF:-

DRK ENGINEERS PVT. LTD.                           : PLAINTIFF

VERSUS

KARTIKESH KUMAR                                      : DEFENDANT

AFFIDAVIT

Affidavit of Mr.x, Director of M/sx. having Regd. Office at xxx, do hereby solemnly affirm and declare as under:-

1.                 That I, the Deponent, being the Director of the plaintiff company is also the AR of the plaintiff company in the above-noted case and am fully authorized by the plaintiff company to file the captioned proceedings, and further, I am well conversant with the facts and circumstances of the case and competent to swear this Affidavit.

2.                 That the accompanying replication to the written statement has been drafted by my counsel under my instructions and its content have been read over and explained to me in my vernacular, which are true and correct to my knowledge and belief and its contents shall be read as part and parcel of this affidavit, which are not repeated herein for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at New Delhi on this ___, day of August, 2024. The contents of paras of my above affidavit are true and correct. No part of its false and nothing material has been kept concealed therefrom.

DEPONENT