C. M. NAYAR ( 1 ) THE present suit has been filed by the plaintiff against the defendants for recovery of Rs. 1,85,140. 68. The plaintiff is a registered partnership firm having its administrative/sales office at 4741/23, Ansari Road, Darya Ganj, New Delhi and carries on business of manufacturing and selling pesticides, Shri Jugal Kishor Bhartiya is one of the partners in the plaintiff firm and it is stated that as such he is authorised to institute the present suit, sign and verify the pleadings and do all such acts in connection therewith. Defendant No. 1 is the sole proprietor and is partner of defendant No. 2 having its office and factory at 24-B. Industrial Extension Area, Gangyal, Jammu (Tawi ). Defendant No. 1 is alleged to be liable for the liabilities of defendant No. 2 including the liabilities of the nature as have been referred to in the plaint. ( 2 ) IN terms of the order-placed by the defendants for supply of various pesticides the plaintiff supplied pesticides to the defendants from its sales office at New Delhi during the year 1981 and years prior thereto. Against the supplies which the plaintiff made from time to time, the bills were raised on the defendants and there was a running account of the defendants with the plaintiff and all payments made by the defendants were duly credited and adjusted in the said account. It is next stated that some times on or about March 24, 1981 the defendants made payment of a sum of Rs. 70,000. 00 by Demand Draft in favour of the plaintiff and payable at New Delhi leaving the outstanding balance of Rs. 4,468. 38 in favour of the plaintiff after adjusting the said amount of the demand draft. The facts relating to the amount due which is claimed in the present suit are detailed in paragraphs 6,7,8,9 and 11 of the plaint which may be reproduced as follows: 6. THEREAFTER, the plaintiff raised a Bill on Defendants bearing No. AM/270/81 dated March 28,1981 for a sum of Rs. 1,04,800. 00 in respect of supply of pesticides made. to the Defendants. The said bill was to be paid within one week thereafter and was to carry interest, if not paid within the said period. THEREAFTER, the plaintiff raised a Bill on Defendants bearing No. AM/270/81 dated March 28,1981 for a sum of Rs. 1,04,800. 00 in respect of supply of pesticides made. to the Defendants. The said bill was to be paid within one week thereafter and was to carry interest, if not paid within the said period. The Defendants repeatedly assured the plaintiff that the Defendants would pay the said amount of Rs,1,04,800/- but have failed and neglected to pay the said amount or any part thereof. 7. The plaintiff states that the plaintiff raised a debit - note No. AM/119/81 dated 9. 6. 1981 for a sum of Rs. 250. 00 on the Defendants on account of contribution towards the cost of 200 Calenders for the year 1980-81 supplied by the plaintiff to the Defendants. 8. Thus a sum of Rs. 1,09,518. 38 became due form the Defendants to the Plaintiff. The Plaintiff made various requests to the Defendants to pay the said outstanding amount. The Defendants kept assuring that the said amount would be paid to the Plaintiff. 9. The Plaintiff states that the their letter No. UK:p:82 dated April 1,1982 addressed of the Plaintiff, the Defendants acknowledged and confirmed that a sum of Rs,1,09,518. 38 is owing and due from them to the Plaintiff. Alongwith the said letter dated April 1,1982, the Defendants also delivered two post -dated cheques bearing Nos. 316569 dated April 10,1982 and 316570 dated april 25, 1982 respectively for Rs. 10,000/- each, in favour of the Plaintiff towards part payment of the outstanding amounts. However, by a telegram dated April 9/10,1982 the Defendants requested the Plaintiff not to encash the above two cheques as they were sending payment by Demand -draft. The plaintiff states that the Defendants failed and neglected to send the Draft as assured. Copies of the said letter No. UK:p:82 dated April 1,1982 and the telegram dated April 9/10,1982 are filed alongwith the Plaint. 11. The Plaintiff states that the Plaintiff has repeatedly called upon the Defendants to liquidate the said admitted amount of Rs. 1,09,518. 38. The Defendants have on severl occasions acknowledged and admitted their outstanding dues to the Plaintiff and have given firm assurances of their intention to liquidate the said outstanding amount. The Plaintiff states that the Defendants have deliberately and wilfully failed and neglected to pay the said amounts or any part thereof to the Plaintiff. 1,09,518. 38. The Defendants have on severl occasions acknowledged and admitted their outstanding dues to the Plaintiff and have given firm assurances of their intention to liquidate the said outstanding amount. The Plaintiff states that the Defendants have deliberately and wilfully failed and neglected to pay the said amounts or any part thereof to the Plaintiff. " ( 3 ) THE Plaintiff is stated to have sent a legal notice dated May 24,1984 as referred to in paragraph 12 of the plaint which was served on the defendants by the plaintiff s Advocate by registered post with acknowledgment due calling upon the defendants to pay the amount of Rs. 1,09,518. 38 with interest thereon at the rate of 21 per cent per annum. The defendants duly received the said notice but failed and neglected to pay the outstanding amount. Copy of the notice and the acknowledgment due are filled with the plaint and marked as Exhibit Public Witness 1/6,public Witness1/ 7 and Public Witness1/8 respectively. The outstanding amount as due from the defendants to the plaintiff is detailed inparagraph 13 of the plaint which may be reproduced as follows: "a. i) Balance outstanding amount in March 1981 as mentioned in paragraph 5 hereinabove. Rs. 4,468. 38 ii) Interest @18% p. a. on the aforesaid aforesaid amount of Rs. 4468. 38 from 24. 3. 81 to 28. 1. 85 Rs. 3,094. 25 B. i) Amount of Bill No. AM/270/81 dated March 28,1981 Rs. 1,04,800. 00 ii) lnterst @ 18% p. a. on the aforesaid amount of Rs. 1,04,800/- from 28. 3. 1981 to 28. 1. 85 Rs72. 364. 40 C. i) Amount of debit-note No. AM/119/81 dated 9. 6. 81 Rs250. 00 ii) Interest @ 18% p. a. on the aforasaid amount of Rs. 250/- from 9. 6. 81 to28. 1. 85 Rs. 163. 65 Total due as on January 28,1985 Rs. 1,85,140. 68 ( 4 ) IT is alleged that the cause of action across in March, 1981 when the defendants made part payment by a Demand Draft for Rs. 70,000/ -. It again arose on March 28,1981 when the bill No. 270 was raised on the defendants for payment. The cause of action thereafter arose on June 9,1981 when the Debit Note was raised on the defendants. The cause of action further arose on April 1,1982 when. 70,000/ -. It again arose on March 28,1981 when the bill No. 270 was raised on the defendants for payment. The cause of action thereafter arose on June 9,1981 when the Debit Note was raised on the defendants. The cause of action further arose on April 1,1982 when. the defendants acknowledged and confirmed the total amount owing and due from them to the plaintiff and further assured the plaintiff that defendants would pay the said amount by the end of may, 1982. It is next contended that the cause of action for filling the present suit is continuing one from day to day and the suit, therefore, is not bared by limitation. ( 5 ) DEFENDANTS filedwritten statement and raised the pleas that Shri Jugal Kishor Bhartia was not the registered partner nor was competent to file, sign and verify the Vakalatnama etc. the payments to the plaintiff were made in advance though the supplies were made by the plaintiff below the standard and specifications as ordered. According to the regularly maintained by the defendants a sum of Rs. 1,39,273/- was recoverable from the plaintiff as these payments were allegedly made against the supplies made on July 16,1980 and March 31,1981. The goods were not within the pacifications and standard as ordered and were accordingly rejected. The plaintiff asked time and again to remove the goods of the supplies made on July 16,1980 and March 31,1981 for the sum of Rs. 40,700/- and Rs. 1,04,800/- respectively which were not, however, removed by the plaintiff. The other averments made in the plaint were also denied. ( 6 ) REPLICATION was filled by the plaintiff and the averments made in the plaint were reiterated. The following issues were framed on the pleadings of the parties: 1. Whether the suit has been filed by the duly authorised person and the plaint is signed by a proper person? 2. Whether the Delhi Court has jurisdiction to try this suit? 3. Whether any part of the supplies made by the plaintiff to the defendants were sub standard and not in accordance with the specifications and were rejected? If so to what effect? 4. Whether the defendants had intimated the plaintiff to remove the rejected goods, as alleged and what is the effect of non removal by the plaintiff thereof on this suit? 5. If so to what effect? 4. Whether the defendants had intimated the plaintiff to remove the rejected goods, as alleged and what is the effect of non removal by the plaintiff thereof on this suit? 5. To what amount is the plaintiff entitled in the suit from the defendants? 6. Whether the plaintiff is entitled to claim interest? If so at what rate and how much? 7. Whether the suit is within time? 8. Relief. Plaintiff led evidence to prove its claim but despite opportunities no evidence was led by the defendants and vide order dated March 23, 1993 the evidence of the defendants was closed. By a subsequent order passed on May 9,1994 the application of the defendants for setting aside the order was allowed subject to payment of Rs. 1,000/-as costs and order dated March 23,1993 was recalled. The defendants chose to remain absent thereafter as well and on February 1,1995 the defendants were directed to be proceeded against ex parte as neither any one was present nor evidence was led. ( 7 ) I have heard learned counsel for the parties. ISSUE N0. 1 ( 8 ) MR. K. C. MITTAL who has appeared for the defendants has contended that the plaintiff has not proved its claim nor the suit has been filed by the duly authorised person. Therefore, the same is liable to fail. He, however, has not been able to place on record any document to repudiate the averments made in the plaint nor has led any evidence as the same was closed despite repeated opportunities and defendants were directed to be proceeded against ex parts. The plaintiff, in the other hand, has led evidence to prove that the suit has been filed by a duly authorised person. Statement of Jugal Kishor Bharatiya, partner of the plaintiff firm has remained uncontroverted and no evidence has been led by the defendants to challenge the same. Issue No. 1 is therefore, decided in favour of the plaintiff and it is held that the suit has been filed by a duly authorised person and is signed by a proper person. Statement of Jugal Kishor Bharatiya, partner of the plaintiff firm has remained uncontroverted and no evidence has been led by the defendants to challenge the same. Issue No. 1 is therefore, decided in favour of the plaintiff and it is held that the suit has been filed by a duly authorised person and is signed by a proper person. ISSUE NO 2 ( 9 ) THE plaintiff supplied goods from Delhi and paragraph 17 of the plaint reads: "the plaintiff states that this Hon ble court has jurisdiction to try and determine this suit as the plaintiff received supply orders at New Delhi and raised bills for payment at New Delhi. The defendants; from time to time, assured the payment of outstanding amounts at New Delhi. The pesticides were supplied from New Delhi and payment to the defendants was to be made by the defendants at New Delhi. The defendants remitted various amounts to the plaintiff by way of demand drafts payable at New Delhi by forwarding chaques at New Delhi. The cause of action arose within the jurisdiction of this Hon ble Court. "though it is written in the bills "subject to the Ballabgarh jurisdiction", there cannot be ouster of jurisdiction of this Court as there is absence of the words exclusive alone only. The Supreme Court has settled the position in the judgement reported as A. S. C. Laminart Pvt. Ltd, and another Vs. A. P. Agencies, Salem JT 1989 (2) S. C. 38 wherein it is held in paragraph 10 as follows: "under Section 23 of the Indian Contract Act the consideration or object of an agreement is lawful, unless it is opposed to public policy. Every agreement of which the object or consideration is unlawful if void. Hence there can be no doubt that an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy. Exdolo malo non oritur actio. If therefore it is found in this case that Clause 11 has absolutely ousted the jurisdiction of the Court it would be against public policy. However, such will be the result only if it can be shown that the jurisdiction to which the parties have agreed to submit had nothing to do with the contract. Exdolo malo non oritur actio. If therefore it is found in this case that Clause 11 has absolutely ousted the jurisdiction of the Court it would be against public policy. However, such will be the result only if it can be shown that the jurisdiction to which the parties have agreed to submit had nothing to do with the contract. If on the other hand it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract it could not be said that it ousted the jurisdiction of the Court. This leads to the question in the facts of this case as to whether Kaira would be proper jurisdiction in the matter of this contract. It would also be relevant to examine if some other course than that of Kaira would also have had jurisdiction in the absence of Clause 11 and whether that would amound to ouster of jurisdiction of those courts and could therby affect the validity of the clause. "this Court has, therefore, jurisdiction to adjudicate and decide the issues raised in the present suit. ISSUE NOS. 3 and 4 ( 10 ) WITH regard to issue No. 3 as to whether the supplies made by the plaintiff to the defendants were substandard and not with specifications and were rejected. The written statement has made the bare assertions and defendants have chosen to remain absent nor have produced any evidence on record. The plaintiff on the other hand, has given full details of the goods supplied to the defendants and the evidence which has been led by the plaintiff is sufficient to hold that the claim as made in the plaint is substantiated by oral evidence as well as by documents on record. Similarly, no evidence was led by the defendants to the effect that they intimated the plaintiff to remove the defected goods as alleged in the written, statement. In view of the averments made in the plaint as well as on the basis of evidence led by the plaintiff these pleas are liable to be rejected. Issues 3 and 4 are decided accordingly. ISSUES NOS. 5. 6. and 7 ( 11 ) THE question now arises as to what amount the plaintiff is entitled to. In view of the averments made in the plaint as well as on the basis of evidence led by the plaintiff these pleas are liable to be rejected. Issues 3 and 4 are decided accordingly. ISSUES NOS. 5. 6. and 7 ( 11 ) THE question now arises as to what amount the plaintiff is entitled to. The details of the amounts as due for the supply of goods are referred to in paragraph 13 of the plaint which has been reproduced in the earlier part of. the judgment. Exhibit Public Witness1/5 is the communication dated April 1,1982 which reads as follows: "m/s Artee Minerals, Darya Ganj, New Delhi. Sub: Repayment Dear Sir, Kindly refer to the discussions held with your goodself in this connection we confirm, that we shall be paying Rs. 40,000/- by end of April 1982 and regarding the balance outsanding we confirm that same will be liquidated upto 30th of May 1982 Hope you will be consideration Thanking Faithfully Yours for U. K. Enterprises Sd/-Prop P. S In case the amount is not pa id off by 30th of May we will loose the interest free benefitor 14 months allowed on Bill No. 270 dated 28. 3. 1981. ( 12 ) THE above said document will show that the defendants have acknowledged their liability for the amounts due to the plaintiff. Similarly Exhibits Public Witness1/2 and Public Witness1/3 are the two cheques dated 10th April, 1982 and 25th April 1982 for the amount of Rs. 10,0007- each which are again admitted documents and were sent by the defendants to the plaintiff. These were not deposited as the defendants sent a telegram to the plaintiff (Exhibit Public Witness1/4) to hold the cheques as they were sending the Draft. The telegram reads as follows : "to HOLD CHEQUE SENDING DRAFT - UK ENTERPRISES ( 13 ) REFERENCE is also made to the communication dated April 1,1982 Exhibit Public Witness1/1 which reads as follows: "m/s Artee Minerals Darya ganj, New Delhi. Sub: Acknowledgement of account. Dear Sir, Kindly refer to your visit to this place in this connection we acknowledge/ confirm the statement of account as under: Last Balance Rs. 4,468. 38 by Bill No. 270 dt. 28. 3. 1981 Rs. 1,04,800. 00 By debit Note Rs. 250. 00 Total Rs. 1,09,518. 38 We are further depositing Rs. 20,000/-on account. Thanking you, Faithfully yours For UK Enterprises Sd-Prop. 4,468. 38 by Bill No. 270 dt. 28. 3. 1981 Rs. 1,04,800. 00 By debit Note Rs. 250. 00 Total Rs. 1,09,518. 38 We are further depositing Rs. 20,000/-on account. Thanking you, Faithfully yours For UK Enterprises Sd-Prop. " ( 14 ) EXHIBITS Public Witness 1/11 to Public Witness 1/26 a. e the bills. The statement of account which is exhibited as Public Witness Public Witness 1/27 which specifies the amount which is due from the defendants. The plaintiff also produced Handwriting. Expert as the singnatures of defendant No. 1 were disputed on various documents. The operative part of the report may be referred: "i have examined signatures on the following documents :- 1. Signatures at Point-D on letter dated 1. 4. 1982 bearing No. UKP-82. 2. Signatures at Point -D-1 and D-2 on another letter dated 1. 4. 1982 bearing No. UKP.-82. 1. 3. Signatures at Points A -1 and A -2 on cheque dated 10. 4. 1982 for Rs,10. 000/ -. 4. Signatures at points A -3 and A -4 on another cheque dated 25. 4. 1982 for Rs. 10,000/ -. 5. Signatures at points A-5 on denial to letter dated 1. 4. 1982 bearing No. UKP-82. 1. 6. Signatures at point A-6 and A-7 on written statement. 7. Signatures at point A-8 affixed to Vakalatnama of the defendant s lawyer. The point under enquiry was as follows: "whether the signatures at points D, D-1, D-2 as are affixed to documents detailed above at items 1 and 2 are in the handwriting of the same person, who has affixed A series of signatures on documents listed at items 3 to 7 ? ( 15 ) THE opinion of the Handwriting Expert may be referred to hereunder: "as a sensitive effect of the observations, detailed in these sheets and their demonstrative manifestation in the respective photo enlargements mounted on photo charts, 1, 2 and 3 in groups of 4 photos each, I am of the considered opinion that whoever wrote comparative a-Series of signatures, undoubtedly also wrote the d-Series of signatures in this case. "the above opinion of the Handwriting Expert will establish that the defendants acknowledged their liability to pay and even issued cheques for part payment which were subsequently withheld on their own asking. "the above opinion of the Handwriting Expert will establish that the defendants acknowledged their liability to pay and even issued cheques for part payment which were subsequently withheld on their own asking. This is the most clinching evidence and no contrary evidence has been referred to by learned counsel for the defendants nor the same has been brought on record despite repeated opportunities. ( 16 ) IN view of the above reasons, the present suit is liable to succeed. Accordingly, I pass a decree in favour of the plaintiff and against the defendants for a sum of Rs. 1,85,140. 68 with cost. Plaintiff shall also be entitled to pendente lite and future interest at the rate of 12 per cent per annum from the date of institution of suit till realisation.