IN THE COURT OF SH. XXXXX, LD. DISTRICT JUDGE; COMMERCIAL COURT; CENTRAL DIST. TIS HAZARI COURTS, DELHI.

CS (COMM.) NO. XXXXX

IN THE MATTER OF:-

XXXXXX         : PLAINTIFF

VERSUS

XXXXXX         : DEFENDANTS

N.D.O.H.:- XX

REPLICATION ON BEHALF OF THE PLAINTIFF TO THE WRITTEN STATEMENT FILED BY THE DEFENDANTS NO.1 TO 4 TO THE SUIT FOR RECOVERY 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 defendants no.1 to 4 (hereinafter called as “defendants”). It is stated that the defendants have made libelous and slanderous allegations in their written statement against the plaintiff and the plaintiff reserves the right to initiate the legal action as warranted under the law against the plaintiff.

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 defendants save and except those expressly admitted, the plaintiff are tendering its replication to the written statement as under:-

REPLY TO THE PRELIMINARY OBJECTIONS:-

1.     That the contents of para 1 of the preliminary objections are wrong and denied. It is denied that the present suit is not maintainable in view of the Provisions or Order XXX CPC and is liable to be dismissed. It is further denied that the suit filed by the plaintiff in the name of XXXXX has not been filed by the legal entity as XXXXX is not the legal entity. The proposition given by the defendants is denied and not applicable to the present case as the present suit has been filed by the proprietor of the company i.e. XXXXX.

2.     That the contents of para 2 of the preliminary objections are wrong and denied. It is denied that the present suit for recovery filed by the plaintiff claiming reliefs against the defendants wherein the defendants no.2 to 4 are the directors of the company and are not liable for the acts and liabilities of the company. Plaintiff herein denied the objection of the defendants that Managing Director or Director of the company cannot be personally liable to make the payment of liabilities of the company and neither any provision to making them personally liable for recovery against the limited company exist. This objection has been denied on the strength that the defendant no.1 company and its Directors i.e. defendants no.2 to 4 are managing day to day affairs of the company and directly involved in the transactions with the plaintiff and gave personal guarantee as well as consideration with respect to the invoices. It is denied that the present suit is bad for mis-joinder of parties as such is liable to be dismissed.

3.     That the contents of para 3 of the preliminary objections are wrong and denied. It is denied that the defendants no.2 to 4 had not done any transactions or dealings with the plaintiff firm in their personal capacity nor they had stood as guarantors to the plaintiff firm in their personal capacities. It is further denied that the defendants no.2 to 4 are not liable to the plaintiff firm and such the suit against them is liable to be dropped and their names deleted from the array of the defendants.

4.     That the contents of para 4 of the preliminary objections are wrong and denied. It is denied that the plaintiff have claimed that filed the present suit on the running account basis and the same is not correct and the present suit is liable to be dismissed. It is further denied that the defendant company had not given any consent or undertaking for running account to be maintained between the parties nor there were any dealings between the parties which could be said to be the running account between the parties. It is further denied that the law of limitation applies between the plaintiff and defendant no.1 Company.

        It is further denied that no running account was being maintained by the defendant with plaintiff and whenever purchase order was placed with plaintiff, they used to supply the goods and the defendant had made payments against each and every invoice individually. It is further denied that each and every invoice is an independent transaction between the parties. It is further denied that the amount claimed by the plaintiff for these invoices come to the same amount as claimed by him in the suit. It is further denied that there is no dispute that in the statement of account there are no shifting balances and therefore there is no account falling under Article 1 of Limitation Act on this basis. It is further denied that account can be said to be an open, mutual and current account, it is necessary that either there are shifting balances or there are reciprocal demands. It is further denied that in case, two parties are engaged in a single legal relationship, then there is required shifting balances i.e. sometimes one person has to take moneys from the other and on other occasions, the first person, in fact, has to pay moneys to the second person i.e. sometimes there is credit balance in favour of one person and sometimes there is credit balance in favour of any person. It is further denied that this is how the shifting balances have been defined by the courts, resciprocal demands have been defined (and when there is no requirement of shifting balances) to mean when two persons do not have a single relationship but two separate relationships and consequently pursuant to those separate relationships independent obligations or reciprocal demands arise.

5.     That the contents of para 5 of the preliminary objections are wrong and denied. It is denied that the present suit is also not maintainable at Delhi within the jurisdiction of Delhi Courts. It is further denied that the goods / wires were ordered by the defendant company at its factory at Faridabad as the plaintiff had contacted the defendant for supply of wires at its Faridabad factory and the goods / wires were also supplied / delivery made at the factory at Faridabad. It is further denied the payment of the goods supplied by the plaintiff was also made through cheques issued by the defendant by its bank account maintained by it at Faridabad.

REJOINDER TO REPLY ON MERITS:-

1.     That the contents of para 1 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is denied that the present suit has been filed in its name under the wrong name and title. It is further denied that the plaintiff is not the legal entity to file the present suit and the present suit is liable to be dismissed on this ground. The plaintiff is a proprietorship firm under the name and style of XXXXXX having its operational office at XXXXXXXXXXXXX through its sole proprietor namely Sh. XXXXXX. The plaintiff is a supplier and engaged in the business of Winding Wires of Copper and Aluminium and All kinds of Insulating Material. The copy of proprietorship registration certificate of the plaintiff with GST No. XXXXXXXXXXXXX along with the ID proof of the proprietor is annexed with the plaint.

2.     That the contents of para 2 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is denied that the defendants no.2 to 4 are acting under the guidance and directions of the board of Directors and are not managing the affairs of the company in their individual capacity. The defendant no.2 to 4 is the respective directors of defendant no.1 and as such managing the day to day affairs of the defendant no.1.

3.     That the contents of para 3 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is denied that the directors do not give the personal guarantee’s for the transactions of the company, in case the directors give the personal guarantee, the same has to be in writing and have to be executed on proper documents but in the present case no written personal guarantee’s were given and no such guarantee has been filed by the plaintiff. 3. The defendant no.2 to 4 represented to the plaintiff that they are the directors of defendant no.1 (the said company) and consequent to which defendant no.2 to 4 gave personal guarantee as well as assurance to the plaintiff that they will make payments immediately after receipt of Goods/Material from plaintiff.

4.     That the contents of para 4 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is denied that in the absence of personal representations and assurances by the defendant no.2 to 4, there is no question of plaintiff being satisfied of the representations and assurances of defendant no.2 and 4 and the plaintiff and the consented to work with defendant no.1 company. It is further denied that it was the plaintiff who being impressed by the goodwill of the defendant company, contacted the defendant company for the supplied of wires at its Faridabad office / factory. It is further denied that the end products i.e. alternators etc manufactured by the defendant company were rejected and returned by its clients and they stopped the payments to defendant company. It is further denied that the defendant company had to spend the huge amounts and labor to rectify the defects and as such also suffered huge loss in its goodwill.

        It is further denied that the said fact was intimated to the plaintiff firm and they agreed for settlement of issues and accounts. It is further denied that the plaintiff instead of settlement of issues and accounts stopped contacting the defendant company and had filed the present suit. That plaintiff believing the representations and the assurances held out by the defendant no.2 to 4 consented to work for them. Being satisfied with words of defendants, the plaintiff supplied Goods/Material i.e. Winding Wire of Copper to defendantno.1 and defendant no.2 to 4 assured payment against the said material, besides personally guaranteeing the payment to the plaintiff.

5.     That the contents of para 5 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is denied that when the defendant no.2 to 4 have no personal liabilities, there is no question of giving personal assurances. It was mutually agreed between plaintiff and defendant no.2 to 4 that the payment of the amount, being due against the goods being supplied by plaintiff to defendant no.1, the defendant no.2 to 4 shall be pay the amount through RTGS/NEFT/Cheque to Plaintiff.

6.     That the contents of para 6 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is denied that the goods / wires were ordered by the defendant company at its factory at Faridabad as the plaintiff had contacted the defendant for supply of wires at its Faridabad factory and the goods / wires were also supplied / delivery made at the factory at Faridabad. Since starting, defendant no.2 to 4 through their personally visiting at office of the plaintiff placed numerous orders and subsequently all such orders of defendant no.2 to 4 were fulfilled by the plaintiff. The plaintiff, as and when requested, supplied goods in the same manner and as per the specifications as were requested by the defendant no.2 to 4.

7.     That the contents of para 7 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. That against the orders being placed by defendant no.2 to 4 to plaintiff at his above-mentioned address, goods were supplied by Plaintiff and such goods were accepted by defendant no.1 to 4 without any protest or demur of any manner whatsoever.

8.     That the contents of para 8 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is pertinent to mention that as and when an order was placed by defendant no.2 to 4, the plaintiff subsequently handed over/delivered such goods, being of top most quality and being as the per the specifications ordered by defendant no.2 to 4.

9.     That the contents of para 9 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. The plaintiff has shared business relationship with defendant no.1 to 4  and in lieu of the same defendant no.2 to 4 have been paying the money consideration to Plaintiff on a Running Account basis against the invoices issued from time to time. The payment of consideration with respect to the invoice also has been made on a Running Account basis and in the consideration of the terms of Invoice.

10.   That the contents of para 10 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. As per the Account maintained by plaintiff, defendant no.2 to 4 have an outstanding of Rs.11,68,349/-(RUPEES ELEVEN LAKHS SIXTY EIGHT THOUSAND & THREE HUNDRED FORTY NINE ONLY) towards plaintiff excluding interest and the details of all the billings & credits of amount.

11.   That the contents of para 11 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. The defendant no.1 to 4 raised 9 bills of abovementioned amounts from the plaintiff in total due amount Rs. 29,43,349.00/- against which several payments were done by defendant no.2 to 4 on respective abovementioned dates. It is pertinent to mention here that defendant no. 1 to 4 has done only payment of 17,75,000/- against the total due amount. The defendant no.2 to 4 did their last payment on 01.09.2020 of Rs. 75,000/-. It is pertinent to mention here that defendant no.1 to 4 has still liability to pay amount Rs. 11,68,349/-(RUPEES ELEVEN LAKHS SIXTY EIGHT THOUSAND & THREE HUNDRED FORTY NINE ONLY) along with interest @ 24% as agreed by the defendant no.2 to 4.

12.   That the contents of para 12 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. As the defendant no.1 to 4 have illegally and unlawfully retained the above mentioned amount which lawfully belongs to the plaintiff, the defendant no.1 to 4 are therefore liable to pay outstanding amount of Rs. 12,61,827 /-(RUPEES TWELVE LAKHS SIXTY ONE THOUSAND & EIGHT HUNDRED TWENTY SEVEN ONLY) which is including interest of 24% from the date of last payment i.e. 01.09.2020 till the date of filing the present suit.

13.   That the contents of para 13 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. The defendant no.2 to 4 has been non-cooperative and has always lingered on the issue of payment to plaintiff and have taken undue advantage of plaintiff’s services. Such a situation has resulted in a loss to plaintiff on account of lackadaisical approach of the defendant no.2 to 4.

14-19.      That the contents of paras 14-19 of the reply are wrong and denied and those of the corresponding paras of the petition are reiterated as correct. It is apparent defendant no.2 to 4 were having mala fide intentions while availing the services of plaintiff from time to time and did not have the intention to honour the terms and conditions of the invoices and payment against the outstanding amount. In spite of regular communications and intimation to the defendant no.2 to 4, they were of  tendency of deliberately delaying the payment which amounted to unfair practice and which have been costing plaintiff heavily. All the representations made by defendant no.1 to 4 were false and were given in order to cheat plaintiff.  In addition to this, it is also clear that defendant no.1 to 4 never intended to clear off the dues and placed orders and availed all the services of plaintiff and still never came forward to pay the outstanding amount even after long persuasion & reminders from plaintiff. Due to delay in not fulfilling of the obligation on the part of the defendant no.1 to 4, plaintiff has been facing huge losses, which defendant no.1 to 4 is totally liable to pay. The said amount is long overdue and even after repeated reminders defendant no.1 to 4 have failed to make the payment so far. That axiomatic facts emerged from the above clearly shows defendant no.1 to 4 have cheated plaintiff very cleverly with dishonest, mala fide intention & ulterior motives. However defendant no.1 to 4 have been all along avoiding plaintiff and other communications and thus have caused wrongful loss to plaintiff and wrongful gains to themselves, thereby committing an offence punishable under various provision of Law.

20.   That the contents of para 20 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. The plaintiff sent the legal notice dated 02.09.2020 on the known addresses of the defendants demanding the abovementioned pending amount against the defendant no.1 to 4 but said legal notice was returned back with the remark “NO PERSON IN ADDRESS”.

21.   That the contents of para 21 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. It is pertinent to mention the plaintiff approached Central District DSLSA mediation centre, Tis Hazari Courts, Delhi to settle the matter amicably through mediation but in spite of 2 notices being issued to the defendant no.1 to 4 to appear and participate in mediation on dated 25.10.2020 & 03.12.2020 through video conferencing, the defendant no.2 to 4 didn’t give any response to the services of emails.

22.   That the contents of para 22 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct. That cause of action is still going on as defendants have not paid the outstanding amount to plaintiff till date.

23.   That the contents of para 23 of the reply are wrong and denied and those of the corresponding para of the petition are reiterated as correct.

24.   That the contents of para 24 of the reply are matter of record, and the corresponding para of the petition are reiterated as correct. For the purposes of recovery and correct and authorized court fee stamp of Rs. 14662/- has been affixed on the plaint.

25.   That the contents of para 25 of the reply are matter of record, and the corresponding para of the petition are reiterated as correct. The suit has been filed within the period of limitation by the plaintiff against the defendants.

Prayer para of the written statement are absolutely wrong and specifically denied. The answering defendants are 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 plaintiffs.

P R A Y E R :-

        It is therefore most respectfully prayed that the relief may kindly be granted in favour of the plaintiff and against the defendants as prayed in the replication, 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:

ADVOCATE

IN THE COURT OF SH. XXXXX, LD. DISTRICT JUDGE; COMMERCIAL COURT; CENTRAL DIST. TIS HAZARI COURTS, DELHI.

CS (COMM.) NO. XXXXXX

IN THE MATTER OF:-

XXXXX                    : PLAINTIFF

VERSUS

XXXXX                                    : DEFENDANTS

AFFIDAVIT

Affidavit of Mr. XXXXX, Proprietor of M/s XXXXX, Office at: XXXXXXXXX, do hereby solemnly affirm and declare on oath as under:-

1.     That I, the plaintiff in the above noted case and am fully conversant with the facts and circumstances of the case and competent to swear this affidavit.

2.     That the contents of the said accompanying replication to the written statement drafted by my counsel under my instructions and the same have been read over and explained to me and the same may be read as part and parcel of this affidavit, which are not reproduced herein for the sake of brevity.

DEPONENT

VERIFICATION :-

Verified at New Delhi on this ___, day of April, 2022, that the contents of the above affidavit are true and correct to my knowledge and no part of it is false thereof and nothing material has been concealed therefrom.

                                                                    DEPONENT