Replication to written statement in suit for recovery with supporting affidavit
0 of 40 blanks filled
IN THE COURT OF THE DISTRICT JUDGE, COMMERCIAL COURT, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS (COMM.) NO. CS (Comm.) suit number/2021
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
N.D.O.H.:- Next date of hearing
REPLICATION ON BEHALF OF THE PLAINTIFF TO THE WRITTEN STATEMENT FILED BY THE DEFENDANTS NO. 1 TO 4 IN 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 the Written Statement filed by the answering defendants no. 1 to 4 (hereinafter referred to as the “defendants”). It is stated that the defendants have made libellous and slanderous allegations against the plaintiff in their Written Statement, and the plaintiff reserves its right to initiate such legal action against the defendants as is warranted under the law.
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 the answering defendants, save and except those expressly admitted, the plaintiff tenders its Replication to the Written Statement as under:-
REPLY TO THE PRELIMINARY OBJECTIONS:
1.That the contents of paragraph 1 of the Preliminary Objections are wrong and are denied. It is denied that the present suit is not maintainable in view of the provisions of Order Order number under CPC CPC and is liable to be dismissed. It is further denied that the suit filed by the plaintiff in the name of Plaintiff firm's trade name has not been filed by a legal entity, or that Plaintiff firm's trade name is not a legal entity. The proposition urged by the defendants is denied and is not applicable to the present case, inasmuch as the present suit has been filed by the proprietor of the firm, namely Proprietor's name.
2.That the contents of paragraph 2 of the Preliminary Objections are wrong and are denied. It is denied that, in the present suit for recovery, the defendants no. 2 to 4, being directors of the company, are not liable for the acts and liabilities of the company. The plaintiff denies the objection of the defendants that a Managing Director or Director of a company cannot be personally liable to discharge the liabilities of the company, and that no provision exists for making them personally liable for recovery against a limited company. This objection is denied on the strength of the fact that the defendant no. 1 company and its Directors, i.e. defendants no. 2 to 4, manage the day-to-day affairs of the company, were directly involved in the transactions with the plaintiff, and also furnished personal guarantees and consideration with respect to the invoices. It is denied that the present suit is bad for mis-joinder of parties and, as such, liable to be dismissed.
3.That the contents of paragraph 3 of the Preliminary Objections are wrong and are denied. It is denied that defendants no. 2 to 4 did not transact or deal with the plaintiff firm in their personal capacity, or that they did not stand as guarantors to the plaintiff firm in their personal capacities. It is further denied that defendants no. 2 to 4 are not liable to the plaintiff firm and that, as such, the suit against them is liable to be dropped and their names deleted from the array of defendants.
4.That the contents of paragraph 4 of the Preliminary Objections are wrong and are denied. It is denied that the suit has not been filed on the basis of a running account; on the contrary, the present suit has been filed on the basis of a running account, and the objection to the contrary is denied. It is further denied that the defendant company had not given any consent or undertaking for a running account to be maintained between the parties, or that there were no dealings between the parties which could be said to constitute a running account. It is further denied that the law of limitation does not apply as between the plaintiff and the defendant no. 1 company as contended.
It is further denied that no running account was being maintained by the defendant with the plaintiff, and that whenever a purchase order was placed with the plaintiff, the plaintiff used to supply the goods and the defendant made payments against each and every invoice individually. It is further denied that each and every invoice constitutes an independent transaction between the parties. It is further denied that the amounts claimed by the plaintiff under these invoices come to the same amount as claimed in the suit, and that there is no dispute that there are no shifting balances in the statement of account, and therefore no account falling under Article 1 of the Limitation Act. It is further denied that, for an account to be an open, mutual and current account, it is necessary that there are either shifting balances or reciprocal demands. It is further denied that, where two parties are engaged in a single legal relationship, shifting balances are not required, i.e. that sometimes one person has to take moneys from the other and, on other occasions, the first person has to pay moneys to the second, i.e. that sometimes there is a credit balance in favour of one person and sometimes in favour of the other. It is further denied that this is how shifting balances have been defined by the courts, and that reciprocal demands (where there is no requirement of shifting balances) have been defined to mean that 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 paragraph 5 of the Preliminary Objections are wrong and are denied. It is denied that the present suit is not maintainable at Place where suit is said to be not maintainable within the jurisdiction of Court said to lack jurisdiction. It is further denied that the goods/wires were ordered by the defendant company at its factory at Place of the defendant company's factory and bank, that the plaintiff had contacted the defendant for supply of wires to its factory at Place of the defendant company's factory and bank, and that the goods/wires were supplied/delivered at the factory at Place of the defendant company's factory and bank. It is further denied that payment for the goods supplied by the plaintiff was also made through cheques issued by the defendant from its bank account maintained at Place of the defendant company's factory and bank.
REJOINDER TO THE REPLY ON MERITS:
1.That the contents of paragraph 1 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that the present suit has been filed in a wrong name and title. It is further denied that the plaintiff is not a legal entity competent to file the present suit and that, on this ground, the present suit is liable to be dismissed. The plaintiff is a proprietorship firm under the name and style of Plaintiff proprietorship firm's name, having its operational office at Plaintiff's office address, New Delhi-110006, through its sole proprietor, namely Sh. Proprietor's name. The plaintiff is a supplier engaged in the business of winding wires of copper and aluminium and all kinds of insulating material. A copy of the plaintiff’s proprietorship registration certificate bearing GST No. Plaintiff's GST number, along with the identity proof of the proprietor, is annexed with the plaint.
2.That the contents of paragraph 2 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that defendants no. 2 to 4 act only under the guidance and directions of the Board of Directors and do not manage the affairs of the company in their individual capacity. Defendants no. 2 to 4 are the respective Directors of defendant no. 1 and, as such, manage the day-to-day affairs of defendant no. 1.
3.That the contents of paragraph 3 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that the Directors do not furnish personal guarantees for the transactions of the company, or that, where Directors furnish a personal guarantee, the same has to be in writing and executed on proper documents, and that in the present case no written personal guarantees were given and no such guarantee has been filed by the plaintiff. The defendants no. 2 to 4 represented to the plaintiff that they were the Directors of defendant no. 1 (the said company), and consequent thereto, defendants no. 2 to 4 furnished personal guarantees as well as assurances to the plaintiff that they would make payments immediately upon receipt of the goods/material from the plaintiff.
4.That the contents of paragraph 4 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that, in the absence of personal representations and assurances by defendants no. 2 to 4, the plaintiff could not have been satisfied by such representations and assurances, or that the plaintiff consented to work with defendant no. 1 company only on that basis. 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 supply 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, or that such clients stopped making payments to the defendant company. It is further denied that the defendant company had to spend huge amounts and labour to rectify defects, or that it suffered any loss of goodwill on that account.
It is further denied that the said facts were intimated to the plaintiff firm and that the plaintiff agreed to a settlement of the issues and accounts. It is further denied that the plaintiff, instead of settling the issues and accounts, stopped contacting the defendant company and filed the present suit. That the plaintiff, believing the representations and assurances held out by defendants no. 2 to 4, consented to work for them. Being satisfied with the words of the defendants, the plaintiff supplied goods/material, i.e., winding wire of copper, to defendant no. 1, and defendants no. 2 to 4 assured payment against the said material, besides personally guaranteeing payment to the plaintiff.
5.That the contents of paragraph 5 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that, since defendants no. 2 to 4 have no personal liability, there is no question of their giving personal assurances. That it was mutually agreed between the plaintiff and defendants no. 2 to 4 that, in respect of the amounts due against the goods supplied by the plaintiff to defendant no. 1, defendants no. 2 to 4 shall pay the said amounts to the plaintiff through RTGS/NEFT/cheque.
6.That the contents of paragraph 6 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that the goods/wires were ordered by the defendant company at its factory at Faridabad on the ground that the plaintiff had contacted the defendant for the supply of wires at its Faridabad factory, or that the goods/wires were supplied/delivered at the factory at Faridabad. From the very beginning, defendants no. 2 to 4, by personally visiting the office of the plaintiff, placed numerous orders, and all such orders were duly fulfilled by the plaintiff. The plaintiff, as and when requested, supplied the goods in the same manner and as per the specifications required by defendants no. 2 to 4.
7.That the contents of paragraph 7 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. That against the orders placed by defendants no. 2 to 4 upon the plaintiff at its above-mentioned address, the goods were supplied by the plaintiff, and such goods were accepted by defendants no. 1 to 4 without any protest or demur of any manner whatsoever.
8.That the contents of paragraph 8 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is pertinent to mention that, as and when an order was placed by defendants no. 2 to 4, the plaintiff handed over/delivered such goods, which were of the highest quality and strictly as per the specifications ordered by defendants no. 2 to 4.
9.That the contents of paragraph 9 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. That the plaintiff has shared a business relationship with defendants no. 1 to 4, and in lieu thereof, defendants no. 2 to 4 have been making monetary consideration to the plaintiff on a running account basis against the invoices issued from time to time. The payment of consideration with respect to the invoices has also been made on a running account basis, in accordance with the terms of the invoices.
10.That the contents of paragraph 10 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. That as per the account maintained by the plaintiff, defendants no. 2 to 4 have an outstanding amount of Rs. Outstanding amount (₹)/- (Outstanding amount in words) payable to the plaintiff, excluding interest, together with the details of all the billings and credits of amounts.
11.That the contents of paragraph 11 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. That defendants no. 1 to 4 raised 9 bills of the above-mentioned amounts from the plaintiff, totalling Rs. Total invoiced amount (₹)/-, against which several payments were made by defendants no. 2 to 4 on the respective above-mentioned dates. It is pertinent to mention that defendants no. 1 to 4 have made payment of only Amount already paid (₹)/- against the total due amount. Defendants no. 2 to 4 made their last payment on Date of last payment of Rs. Amount of last payment (₹)/-. It is pertinent to mention that defendants no. 1 to 4 continue to be liable to pay an amount of Rs. Balance due with interest (₹)/- (Balance due in words) along with interest @ 24%, as agreed by defendants no. 2 to 4.
12.That the contents of paragraph 12 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. That since defendants no. 1 to 4 have illegally and unlawfully retained the above-mentioned amount, which lawfully belongs to the plaintiff, defendants no. 1 to 4 are liable to pay the outstanding amount of Rs. Amount claimed with interest (₹)/- (Amount claimed in words), which includes interest at 24% from the date of the last payment, i.e., Date of last payment, till the date of filing of the present suit.
13.That the contents of paragraph 13 of the reply are wrong and denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. That defendants no. 2 to 4 have been non-cooperative and have consistently delayed the issue of payment to the plaintiff, taking undue advantage of the plaintiff's services. Such conduct has resulted in loss to the plaintiff on account of the lackadaisical approach of defendants no. 2 to 4.
14-19.That the contents of paragraphs 14 to 19 of the reply are wrong and denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is apparent that defendants no. 2 to 4 acted with mala fide intentions while availing the services of the plaintiff from time to time and never intended to honour the terms and conditions of the invoices or to make payment against the outstanding amount. Despite regular communications and intimations to defendants no. 2 to 4, they deliberately delayed payment, which amounted to an unfair practice and has cost the plaintiff heavily. All the representations made by defendants no. 1 to 4 were false and were made in order to cheat the plaintiff. In addition, it is also clear that defendants no. 1 to 4 never intended to clear the dues; they placed orders and availed all the services of the plaintiff, and yet never came forward to pay the outstanding amount despite long persuasion and reminders from the plaintiff. Due to the defendants no. 1 to 4's failure to fulfil their obligations, the plaintiff has been facing huge losses, which defendants no. 1 to 4 are wholly liable to pay. The said amount is long overdue, and despite repeated reminders, defendants no. 1 to 4 have failed to make payment so far. That the axiomatic facts emerging from the above clearly show that defendants no. 1 to 4 have cleverly cheated the plaintiff with dishonest, mala fide intentions and ulterior motives. Defendants no. 1 to 4 have all along been avoiding the plaintiff and its communications, thereby causing wrongful loss to the plaintiff and wrongful gain to themselves, and thus committing offences punishable under various provisions of law.
20.That the contents of paragraph 20 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. The plaintiff caused a legal notice dated Date of legal notice to be served upon the defendants at their known addresses, demanding payment of the abovementioned pending amount against defendant Nos. 1 to 4; however, the said legal notice was returned with the remark "NO PERSON IN ADDRESS".
21.That the contents of paragraph 21 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is pertinent to mention that the plaintiff approached the Mediation centre name to settle the matter amicably through mediation; however, despite two notices being issued to defendant Nos. 1 to 4 to appear and participate in the mediation proceedings scheduled on Date of mediation, defendant Nos. 2 to 4 did not give any response to the notices sent.
22.That the contents of paragraph 22 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. The cause of action is still continuing, as the defendants have failed to pay the outstanding amount to the plaintiff till date.
23.That the contents of paragraph 23 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct.
24.That the contents of paragraph 24 of the reply are a matter of record, and the contents of the corresponding paragraph of the plaint are reiterated as correct. For the purposes of the recovery suit, a correct and authorised court fee stamp of ₹ Court fee amount (₹)/- has been affixed on the plaint.
25.That the contents of paragraph 25 of the reply are a matter of record, and the contents of the corresponding paragraph of the plaint are reiterated as correct. The suit has been filed by the plaintiff against the defendants within the period of limitation.
The paragraphs of the written statement in the nature of prayer are absolutely wrong and are specifically denied. The answering defendant is not entitled to the relief claimed therein.
Any allegation made in the written statement which is not specifically denied herein is absolutely wrong and is specifically denied, and the non-specific denial thereof shall not be construed as an admission on the part of the plaintiff.
PRAYER :-
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to grant the relief in favour of the plaintiff and against the defendants as prayed for in the replication, in the interest of justice, equity and in the circumstances of the case.
Pass such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
It is prayed accordingly.
Plaintiff's namePLAINTIFF
THROUGH
DATED: Date of signing
Advocate's name
ADVOCATE
Advocate's address, Advocate's city-Pin code
Mob. No. Advocate's mobile number
Email: Advocate's email
IN THE COURT OF Court designation and judge's name
CS (COMM.) NO. CS (Comm.) suit number
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
AFFIDAVIT
Affidavit of Mr. Deponent's name, Proprietor of Deponent's firm name, Deponent's address, do hereby solemnly affirm and declare on oath as under:-
1.That I am the plaintiff in the above-noted case, am fully conversant with the facts and circumstances of the case, and am competent to swear this affidavit.
2.That the contents of the accompanying replication to the written statement, drafted by my counsel under my instructions, have been read over and explained to me, and the same may be read as part and parcel of this affidavit; the same are not reproduced herein for the sake of brevity.
DEPONENT
VERIFICATION :-
Verified at City where affidavit is verified on this Date of verification that the contents of the above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.
DEPONENT