IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST.____________; XXXXXX COURTS, DELHI.

C.S. (COMM) NO. _____ OF 20___.

IN THE MATTER OF:-

XXXXXXXXXX PVT. LTD.                                 : PLAINTIFF

VERSUS

MR. XXXXXXXX

Prop. of M/s. XXX Trading Company                     : DEFENDANT

(P.S.__________________)

I N D E X

S. No.          PARTICULARS                                        PAGES     

1.       COURT FEE

2.       LIST OF DATES

3.       MEMO OF PARTIES   

4.       SUIT FOR RECOVERY ALONG WITH INTEREST AND COSTS OF SUIT.

5.       AFFIDAVIT OF STATEMENT OF TRUTH.

6.       LIST OF DOCUMENTS ALONG WITH DOCUMENTS

7.       AFFIDAVIT UNDER ORDER XI RULE 6(III) OF TH COMMERCIAL COURT ACT, 2015 R/W SECTION 65B OF INDIAN EVIDENCE ACT, 1872.

8.       VAKALATNAMA.                          

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DELHI                                                                 PLAINTIFF

THROUGH

DATED:

XXXXXXXXXX

 (Advocate)

LIST OF DATES & EVENTS :-

April, 2018           :         The Defendant approached the Plaintiff to supply the goods and since then to till 15.01.2021 the Defendant made several orders for supply of goods / material to the Defendant on running account basis.

01.12.2021           :         The Defendant made a part payment of Rs.4,39,116/- to the Plaintiff out of the total outstanding amount.

11.10.2022           :         The Plaintiff company issued a legal notice of demand to the Defendant which was duly served to the Defendant.

19.10.2022           :         The false and frivolous reply sent by the Defendant through his lawyer to the said legal notice of the Plaintiff.

01.02.2023                     :         That the Plaintiff had filed for pre-suit mediation proceedings on/around 06.12.2022, and the non-starter report was issued on 01.02.2023, hence, the said time period starting from 06.12.2022 till 01.02.2023 to be also excluded for the purpose of computation of limitation period.

April, 2024           :         Hence, the present suit.

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST.____________; XXXXXX COURTS, DELHI.

C.S. (COMM) NO. _____ OF 20___.

IN THE MATTER OF:-

XXXXXXXXXX PVT. LTD.                                 : PLAINTIFF

VERSUS

MR. XXXXXXXX

Prop. of M/s. XXX Trading Company                     : DEFENDANT

(P.S.__________________)

MEMO OF PARTIES

M/S. XXXXXXXXXX PVT. LTD.,

Having its Regd. Office at________,

___________________

, Delhi-1100__.

Through its AR Ms.XXX                                       : PLAINTIFF

VERSUS

MR. XXXXXXXX

Proprietor of M/s. XXXXX Trading Company

________________________,

 Agra, U.P.-2820__ .                                              : DEFENDANT

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DELHI                                                                PLAINTIFF

THROUGH

DATED:

XXXXXXXXX

 (Advocate)

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST.____________; XXXXX COURTS, DELHI.

C.S. (COMM) NO. _____ OF 20__.

IN THE MATTER OF:-

M/S. XXXXXXXXXX PVT. LTD.,

Having its Regd. Office at________,

___________________

, Delhi-1100__.

Through its AR Ms.XXX                                       : PLAINTIFF

VERSUS

MR. XXXXXXXX

Proprietor of M/s. XXXXX Trading Company

________________________,

 Agra, U.P.-2820__ .                                              : DEFENDANT (P.S._______________)

SUIT FOR RECOVERY OF AN AMOUNT OF RS. 10,42,609/- (INR RUPEES TEN LAKHS FORTY TWO THOUSAND SIX HUNDRED AND NINE ONLY) ALONG WITH INTEREST, COSTS & DAMAGES.

MOST RESPECTFULLY SHOWETH:-

1.                 That the Plaintiff is a Private Limited Company duly incorporated under the Companies Act, 1956. That the Plaintiff is engaged in the business of manufacturing of foam sheets, cushions, pillows, and multi-layered mattresses & allied items products. The Plaintiff enjoys high repute in its field of business and caters to clientage throughout India.

2.                 That the present plaint / suit being filed through Ms. XXXX who is the Authorized Representative of the Plaintiff Company and has also been authorized vide Board Resolution dated 29.02.2024 by the Board Directors of the Plaintiff Company to file, institute, sign, verify the present suit and to initiate other appropriate actions. Ms. XXXX  is fully conversant with the facts and circumstances of the captioned suit, including all the transactions and communications as done with the Defendant and thus is competent to depose and verify the facts for the purpose of filing the present suit on behalf of the Plaintiff Company.

3.                 That the Defendant had approached the Plaintiff at its registered office at______________, Delhi-1100__, and the Defendant assured the plaintiff that his firm is a proprietorship firm and Defendant is the Proprietor of M/s. XXXXX  Trading, and had further represented to be managing the day-to-day operations of the Firm. That the Defendant had approached the Plaintiff requesting the Plaintiff to supply goods to the Defendant and in light of the mutually accepted terms and conditions between the parties placed numerous orders since 2018, and subsequently, against such orders the plaintiff supplied the Defendant, the required goods as per their specifications and satisfaction accordingly. It is pertinent to mention herein that the Defendant, without any protest or demur accepted the goods supplied by the plaintiff as the said goods were of utmost quality and were in accordance with their requirements.  

4.                 It is submitted that the Plaintiff had provided the Defendant, with the best quality of services as per their specifications and satisfaction accordingly, hence, the Defendant, accepted the goods provided by the Plaintiff without any protest or demur. That against the said supply of goods being provided, the Plaintiff raised numerous invoices upon the Defendant, seeking payment qua the goods being provided. The said invoices were duly accepted and acknowledged by the Defendant.

5.                 It is further submitted that after the acceptance of the invoices being raised, the Defendant, never disputed or raised any issue/ demur of the goods supplied by the Plaintiff; the Defendant, made petty part payments to the Plaintiff on a running account basis.

6.                 That the Defendant has purchased the goods from the plaintiff and the plaintiff was maintaining a running account in its books of account in the Defendant name which it maintains in its normal course of business and as per said ledger of account a sum of INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only) is outstanding balance from 15.01.2021 and recoverable from the Defendant as on date. In lieu of the goods being supplied by the plaintiff to the Defendant; the plaintiff raised invoices upon the Defendant, requesting payment of the due amount and such invoices were duly accepted and acknowledged by the Defendant.

7.                 It is further submitted that subsequent to the goods being delivered to the Defendant; the order of which were place by the Defendant in the office of the Plaintiff, the Plaintiff requested the Defendant, numerous times to release the payment of the due amount, however, the Defendant, by one way or the other kept putting the matter on one pretext or the other for the purpose of delaying / avoiding the payment of the due amount to the Plaintiff.

8.                 That the Plaintiff, believing upon the representations as well as personal guarantee as given by the Defendant, provided with all the orders / products as engaged for and the Plaintiff without any default supplied the Defendant’s with the products without any default the timely delivery of goods as and when required by the Defendant.

9.                 That the Plaintiff has shared business relationship with the Defendant and in lieu of the same the Defendant and the Plaintiff had paid the money consideration to the Plaintiff on a Running Account basis at Plaintiff’s bank account which is maintain in Delhi and the remaining balance has been holding in abeyance to the Plaintiff from time to time. The payment schedule of consideration with respect to the invoice was very much known to know as it was categorically explained to the Defendant that the payment qua the invoice has to be done within a reasonable time otherwise the same delay will attract interest on delayed payment.

10.             It is further submitted that the Plaintiff for now had not received payments in respect of various goods as supplied to the Defendant. Since the desired date of acknowledging the payment of an acknowledged amount of INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only), the Plaintiff had waited patiently despite chasing the Defendant despite several months, still have not made the payment, resulting which the Plaintiff  has force to file the present plaint against the Defendant for recovery of the said outstanding amount.

11.             That the Defendant has been non-cooperative and have always lingered on the issue of payment to the Plaintiff and has taken undue advantage of the Plaintiff’s services. That such a situation has resulted in a loss to the Plaintiff on account lackadaisical approach of the Defendant.

12.             Further it is apparent that the Defendant was having mala-fide intentions while availing the services of the Plaintiff from time to time and did not have the intention to honor the terms and conditions of the invoices and payment against the acknowledged outstanding amount coupled with the fact that despite the personal assurances been given by the Defendant, he didn’t even honor the terms of the business with the Plaintiff. As per communication with the Defendant has been deliberately delaying the payment and clear off their liability which amounted to unfair practice and which have been costing the Plaintiff heavily.

13.             That it is pertinent to mention that it was mutually agreed between the parties that interest would be recovered @18% p.a. on overdue unpaid balance amount. That despite raising the Invoices, till 15.01.2021 date an amount of INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only) is due and payable by the Defendant to the Plaintiff, in addition to payment of interest @18% p.a. from 15.01.2021 till date of payment.

14.             That the Plaintiff has been trying to contact the Defendants regularly and has been trying to meet their officials/ representatives on several occasions, however, all such requests of the Plaintiff have gone in vain. That despite numerous requests being made by the Plaintiff, the Defendant having mischievous and malaise intent from the start, have repudiated the requests of the Plaintiff. That till date, the Plaintiff has been made to suffer huge financial losses including loss of opportunities, and such has caused severe hardships to the Plaintiff for which the Defendant is solely and legally liable.

15.             That axiomatic fact that emerged from the above clearly shows that the Defendant has cheated the Plaintiff with dishonest and mala fide intentions. Thus, the Defendant has caused wrongful loss to the Plaintiff and wrongful gains to themselves.

16.             That on 01.12.2021 the Defendant was made a part payment of Rs.4,39,116/- through cheque to the Plaintiff out of which, as per the ledger account maintained by the Plaintiff, till date an amount of INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only) is due and payable by the Defendant to the Plaintiff along with the interest payable at the rate of 18% per annum starting from 15.01.2021 and till date of realization, this being in addition to making payment on account of the damages and costs.

17.             That aggrieved by the deceitful and decisive acts of the Defendant and their failure to pay the amount due and payable; the Plaintiff company was constrained to send a legal notice dated 11.10.2022 (hereinafter to be referred to as the “Legal Notice”) to the Defendant pursuant to which the Plaintiff requested the Defendant to make the payment of the balance due amount to the Plaintiff, however, same was replied by the Defendant vide reply dated 19.10.2022 with false excuses, and Defendant failed to clear the outstanding amount which demanded in the said Legal Notice.

18.             That the plaintiff is entitled to recover a sum of INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only) along with the interest payable @18% per annum starting from 15.01.2021 and till date of realization,  from the defendant. The defendant is liable to pay the said outstanding to the plaintiff in view of the submissions and facts as mentioned above.

19.             That the plaintiff requested the defendant several times for payment as mentioned above, the defendant has failed and neglected to make the payment which is due on the defendant. The plaintiff being left with no other option but to approach before this Hon'ble Court for recovery of outstanding amounts.

20.             That with time, to the dismay of the Plaintiff, the Defendant defaulted in making the payments, and failed to clear the outstanding due & payable amount to the Plaintiff despite numerous requests advanced by the Plaintiff. That in lieu of the default of the Defendant in making the payment, the Plaintiff with time raised numerous requests for the same seeking payment of the due amount, however, the Defendant kept putting the matter on one pretext or the other, and failed to clear the due amount to the Plaintiff.

21.             That it is pertinent to mention that the Plaintiff, in lieu of the past relationship with the Defendant, had earlier chosen not to resort to any legal mechanism trusting that the Due Amount shall be paid by the Defendant along with the interest shortly, however, the Plaintiff has been constrained to take the legal recourse resulting out of the Defendant’s malafide intentions and dishonest acts.

22.             That the Defendant has till date failed to clear the payment of the Due Amount. That the Defendants are obligated to pay the outstanding amount as per the mutually accepted terms and conditions between the parties, however, regardless of the same the Defendant has failed to honor its commitments as agreed with the Plaintiff.

23.             That without prejudice to the rights and contentions of the Plaintiff, it is pertinent to mention herein that the Defendant even failed to abide by their own commitment as assured by it as they have failed to make payment of the amount due and hence, the conduct and malafide intentions of the Defendant is writ at large.

24.             That the cause of action to filing the present suit arose on various occasion when the material was supplied to the Defendant and when the Defendant made the payments towards its legally enforceable liability as per ledger account statement. The cause of action arose in the month of April, 2018 when the Defendant approached the Plaintiff to supply the goods and since then to till 15.01.2021 the Defendant made several orders for supply of goods / material to the Defendant on running account basis. The cause of action further arose on 01.12.2021 when the Defendant made a part payment of Rs.4,39,116/- to the Plaintiff. The cause of action further arose on 11.10.2022 when the Plaintiff company issued a legal notice of demand to the Defendant which was duly served to the Defendant. The cause of action further arose on 19.10.2022 when the false and frivolous reply sent by the Defendant through his lawyer to the said legal notice of the Plaintiff. That the cause of action for the present suit is a continuing and recurring cause of action as the Defendant has failed to clear outstanding payment to the Plaintiff, and the obligation of the Defendant towards the Plaintiff is still subsisting and continuing, hence, the present suit is being filed is within the prescribed limitation period.

25.             The suit for the purpose of relief of recovery, the said suit is valued INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only) along with interest @18% p.a. The Plaintiff has paid the appropriate court fee of Rs.12,700/- towards the same. Further, the Plaintiff undertakes to pay deficient court fees, if any.

26.             That the captioned matter falls within the jurisdiction of this Hon’ble Court as pursuant to the invoices raised by the Plaintiff (and being duly accepted by the Defendant), the parties had amicably chosen to give jurisdiction to the courts of New Delhi for resolution of disputes between them, furthermore, the Plaintiff is located and registered within the jurisdiction of this Hon’ble Court, hence, this Hon’ble Court has the jurisdiction. That the Defendant is under an obligation to make payment to the Plaintiff at the registered office of the Plaintiff (being within this jurisdiction) hence, this Hon’ble Court has the territorial jurisdiction. Moreover, the orders were placed at the registered office of the Plaintiff, and meetings took place at the registered office of the Plaintiff in addition to that the payment requests were made/raised from the registered office of the Plaintiff, hence, this Hon’ble Court has the jurisdiction as the cause of action also arose in favour of the Plaintiff within the jurisdiction of this Hon’ble Court. That the payment requests were made by the Plaintiff to the Defendant at its registered office which falls within the jurisdiction of this Hon’ble Court, hence, this Hon’ble Court has the jurisdiction.

27.             That the suit comes under the Commercial Dispute definition as defined in Section 2(1)(c)(xviii) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Ordinance, 2015 under its pecuniary jurisdiction.

28.             That the Plaintiff had filed for pre-suit mediation proceedings on/around 06.12.2022, and the non-starter report was issued on/around 01.02.2023, hence, the said time period starting from 06.12.2022 till 01.02.2023 to be also excluded for the purpose of computation of limitation period, hence, the present suit is within the limitation period. Thereafter, when the plaintiff contacted the Defendant, he promised to pay the outstanding amount soon, but despite several requests and demands he has failed to make any payment, however due to lockdown for pandemic Covid-19 the plaintiff had to wait approximately 10-11 months to begin normal course of business. There has been no deliberately or intentional delay in filing the present suit which has already been exempted by the Supreme Court in view of pandemic Covid-19, therefore present suit is well within limitation period as prescribed under the law and there is no impediment to grant the relief as prayed under this suit.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to; -

a.      Pass a decree in favour of the Plaintiff and against the Defendant by directing the Defendant to make total outstanding payment of an amount INR 10,42,609/- (Rupees Ten Lakhs Forty Two Thousand Six Hundred and Nine Only) along with the interest @18% p.a. from 15.01.2021 till its realization to the Plaintiff;

b.     Award interest being payable at the rate of as may be decided by this Hon’ble Court pursuant to Order VII Rule 2A of the CPC, starting from due till the date of filing of the captioned suit along with interest being payable starting from the date of the institution of the captioned suit till the date of the final decree;

c.      Award/impose appropriate costs of the suit to be payable by the Defendant as may be decided by this Hon’ble Court pursuant to Section 35 of the CPC; and

d.     Pass such other and further orders, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

DELHI                                                                PLAINTIFF

THROUGH

DATED:

XXXXXXXXX

 (Advocate)

Office at:________________-,

           New Delhi-1100___.

Mob: +______________

VERIFICATION:-

Verified at New Delhi on this ___ day of April, 2024 that the contents of the statements made in 1 to ….. paragraphs are true to my knowledge, and statements made in …. to ….. paras are based on information received & available which I believe to be correct, and statements made in …. to …. paragraphs are based on legal advice and no part of it is false nor anything material has been concealed therefrom. Last para contains the prayer to this Hon’ble Court.

                                                          PLAINTIFF

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST.____________; XXXXXX COURTS, DELHI.

C.S. (COMM) NO. _____ OF 20___.

IN THE MATTER OF:-

XXXXXXXXXX PVT. LTD.                                 : PLAINTIFF

VERSUS

MR. XXXXXXXX

Prop. of M/s. XXX Trading Company                     : DEFENDANT

(P.S.__________________)

STATEMENT OF TRUTH

I, XXXXXX , Authorised Representative of M/s. Sunrise Foam Product Pvt. Ltd., having its office at_______________________, Delhi-1100__, do hereby solemnly affirm and declare as hereunder:

1.                 That I, the Deponent, the AR of the Plaintiff company, and hence, I, the Deponent am competent to swear this statement of truth. That I, the Deponent, am well conversant with the facts and circumstances of the case, and hence competent to swear this Affidavit.

2.                 I am sufficiently conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.

3.                 I say that the statements made in 1 to …..paragraphs are true to my knowledge, and statements made in …. to …..paras are based on information received & available which I believe to be correct, and statements made in ……. to …… paragraphs of are based on legal advice and no part of it is false nor anything material has been concealed therefrom.

4.                 I say that there is no false statement or concealment of any material fact, documents or record, and I have included information that relevant for the captioned suit.

5.                 I say that the above-mentioned suit comprises of a total of 1 to …… pages, each of which has been duly signed by me.

6.                 I say that all documents in my power, possession, control, or custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed, and that I do not have any other documents in my power, possession, control or custody as of now.

7.                 I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.

8.                 I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.

DEPONENT

VERIFICATION :-

Verified at Delhi on this ___ day of April, 20__. That the contents of my above Affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.

DEPONENT

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST. NORTH-WEST; ROHINI COURTS, DELHI.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

SUNRISE FOAM PRODUCT PVT. LTD.           : PLAINTIFF

VERSUS

MR. VICKY BANSAL

Prop. of M/s. Paras Trading Company                     : DEFENDANT

AFFIDAVIT

I, XXXXX , Authorised Representative of M/s. XXXXXXXX Product Pvt. Ltd., having its office at___________________________, Delhi-1100__, do hereby solemnly affirm and declare as hereunder:

1.                 That the deponent is the AR of the Plaintiff Company in the accompanying suit and thus competent to swear this affidavit.

2.                 That the accompanying suit has been drafted under the deponent’s instructions and the contents of the same are true and correct to best of her knowledge and belief. Nothing material has been concealed there from.

3.                 That the contents of accompanying suit may please be read as part and parcel of this affidavit as the same are not being repeated here for sake of brevity.

                                                                    DEPONENT

VERIFICATION:-

Verified at New Delhi on this __ day of April, 2024 that the contents of the above affidavit are true and correct to the best of my knowledge, no part thereof is false and nothing material has been concealed therefrom.

DEPONENT

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST.____________; XXXXXX COURTS, DELHI.

C.S. (COMM) NO. _____ OF 20___.

IN THE MATTER OF:-

XXXXXXXXXX PVT. LTD.                                 : PLAINTIFF

VERSUS

MR. XXXXXXXX

Prop. of M/s. XXX Trading Company                     : DEFENDANT

(P.S.__________________)

LIST OF DOCUMENTS

DELHI                                                                PLAINTIFF

THROUGH

DATED:

XXXXXXXX

 (Advocate)

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DIST.____________; XXXXXX COURTS, DELHI.

C.S. (COMM) NO. _____ OF 20___.

IN THE MATTER OF:-

XXXXXXXXXX PVT. LTD.                                 : PLAINTIFF

VERSUS

MR. XXXXXXXX

Prop. of M/s. XXX Trading Company                     : DEFENDANT

(P.S.__________________)

AFFIDAVIT UNDER ORDER XI RULE 6 (III) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 65 B OF THE INDIAN EVIDENCE ACT, 1872

I, XXXXX, Authorised Representative of M/s. XXXXXXX Product Pvt. Ltd., having its office at________________________, Delhi-1100__, do hereby solemnly affirm and declare as hereunder:

1.              I say that I am the AR of the Plaintiff Company in the above noted case and well conversant with facts and circumstances of the case and such I am competent to swear the affidavit.

2.              I say that for the purpose of present case I have printed out the emails generated from the information stored in computer belonging to me which is regularly used in ordinary course of business by me.

The printouts of the abovementioned documents are printed under my instruction and have been filed with list of documents.

3.              I say that I have stored information in office computer which is regularly used by me in ordinary course of business and printout have been taken under my instructions from printer which is regularly used by me in the course of business.

4.              I say that I have been advised to state that the conditions of Section 65B of the Indian Evidence Act, 1972 are complied with in respect of these documents.

5.              I say that I in particular confirm:-

a)        That the computer system and printer are regularly used by me to produce the computer output and store such record. The relevant printouts were taken under my supervision and I have lawful control over the use of the said computer system and printer in my office.

b)       That the relevant information from the correspondence was a part of the input which was regularly fed by me to the computer system as a part of the ordinary course of my business activities.

c)        That the computer system as used by me has been operating properly and the documents and their accuracy and contents have not been altered and tampered with during the transfer process in any manner whatsoever.

d)       That the information contained in the computer output is an exact replica and has been produced from the original electronic record and therefore reproduction of the information contained on the Electronic Records therein.

DEPONENT

VERIFICATION:-

Verified at Delhi on ___ day of April, 2024 that the contents of my above affidavit are true and correct to the best of my knowledge and belief and nothing material or relevant has been concealed therefrom.     

DEPONENT