Delhi District Court
) C.S. No. 10236/2016 vs Dmv Ventures on 28 November, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
1) C.S. No. 10236/2016
Arihant Trading Company,
351/3, Press Street, 1st Floor,
Sadar Bazar, Delhi110006.
......Plaintiff
Versus
DMV Ventures,
Through its Proprietor
Shri Mani Farsaiya,
12/2, Sher Shah Suri Road,
Sector36, Faridabad (Haryana)
.......Defendant
SUIT FOR RECOVERY OF RS. 5,55,236.50 WITH INTEREST
Date of institution of suit : 31.05.2012
Arguments concluded on : 21.10.2016/05.11.2016
Date of pronouncement of judgment : 28.11.2016
CS10236/2016 Arihant Trading Co. Vs. DMV Ventures
Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 1 of 30
A N D
2) C.S. No. 12907/2016
DMV Ventures,
Through its Proprietor
Shri Mani Farsaiya,
12/2, Sher Shah Suri Road,
Sector36, Faridabad (Haryana)
.......Plaintiff/Counter Claimant
Versus
Arihant Trading Company,
351/3, Press Street, 1st Floor,
Sadar Bazar, Delhi110006.
......Defendant
COUNTER CLAIM FOR RECOVERY OF RS. 3,33,239.00
Date of institution of suit : 25.09.2012
Arguments concluded on : 21.10.2016/05.11.2016
Date of pronouncement of judgment : 28.11.2016
CS10236/2016 Arihant Trading Co. Vs. DMV Ventures
Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 2 of 30
JUDGMENT
1.Vide this common judgment I shall dispose of two suits bearing no. (1) CS10236/2016, titled "Arihant Trading Company (hereinafter referred to as plaintiff) Vs. DMV Venture (hereinafter referred to as defendant)" and (2) CS12907/2016, titled "DMV Venture Vs. Arihant Trading Company". The lead suit has been suit no. CS 10236/2016, titled "Arihant Trading Company Vs. DMV Venture." The other suit bearing CS12907/2016, titled "DMV Venture Vs. Arihant Trading Company" is the counter claim of defendant.
2. The brief facts of the lead case (C.S. No. 10236/2016) are that the plaintiff, a firm duly registered with the registrar of the firms, through its partner, duly authorized, has filed the present suit against the defendant for recovery of Rs. 5,55,236.50 alongwith interest. Plaintiff has been carrying on the business of trading of various types of goods namely, tapes, buttons, tailoring goods, accessories among other items. The defendant approached the plaintiff for purchase of tapes, buttons CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 3 of 30 accessories, tailoring goods etc. (hereinafter being mentioned as goods). Defendant assured the plaintiff to make the payment within a period of 30 days from the date of receipt of the goods. The plaintiff had sold and dispatched the goods vide its various invoices. The plaintiff had been maintaining running account of the defendant in his books. The defendant had been making the payment to plaintiff sometimes on account basis and on some occasion had also issued cheques. The delivery of goods was taken by the representative of the defendant directly from the premises/Godown of the plaintiff at Delhi and sometimes the goods were delivered to the defendant through common carrier at Delhi at risks and responsibility of defendant. As per statement of account, a sum of Rs. 5,55,236.50 was payable by defendant to the plaintiff on account of goods so supplied by the plaintiff vide their various invoices to the defendant. The defendant had issued two cheques, drawn on Canara Bank, Nehru Ground, Faridabad, for part payment of discharge of his liabilities towards the plaintiff, whose details are mentioned as follows: CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 4 of 30 Cheque No. Dated Amount in Rs.
015712 20.12.2011 79,646/
015713 28.12.2011 1,58,508/
Total : 2,38,154/
It has been averred that when plaintiff presented the aforesaid two cheques with their bankers for clearance, same were returned uncleared by the defendant's bankers for the reason "Funds Insufficient". The plaintiff had informed the defendant about the returning of the aforementioned cheques. At the request and assurance of the defendant, the plaintiff again represented the aforementioned cheques for clearance with their bankers. But, both the cheques were again returned uncleared by the defendant's bankers for the the reason "Funds Insufficient". It has been further averred that the plaintiff again informed the defendant about returning of the cheques and demanded the amount of the returned cheques, but the defendant had not paid to the plaintiff the payment of the outstanding amounts. The plaintiff served legal notice dated 15.02.2012, under Section 138 of Negotiable Instrument Act, 1881 (in short NI Act), but the defendant intentionally and deliberately neither CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 5 of 30 received the said legal notice nor complied with the same. Accordingly, plaintiff had filed a complaint under Section 138 NI Act, which was pending adjudication before the Court of Sh. Viplav Dabas, Ld. Metropolitan Magistrate, Delhi. It has been further averred that plaintiff also served legal notice dated 03.04.2012 upon defendant but the defendant neither replied nor complied to the said legal notice. Resultant had been this suit.
3. In the filed written statement, defendant took preliminary objections viz., (i) suit was not maintainable for want of territorial jurisdiction and misjoinder of party; (ii) suit was not filed by a competent and properly authorized person; and (iii) plaintiff had already filed a case under Section 138 NI Act, which was pending adjudication in the Court of Sh. Neeraj Gaur, Ld. Metropolitan Magistrate, Tis Hazari Courts, Delhi, wherein the issues were directly and substantially same, though it was a criminal proceeding. Defendant clarified that the plaintiff was given a purchase order to supply belt of a specific quantity at a specific price and of a specified quality. But, the plaintiff neither delivered the goods of specific quantity nor of the specified quality. Whole cause of CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 6 of 30 action arose at Faridabad, Haryana. The defendant had sent a purchase order for belts only to the plaintiff vide no. 1088, dated 05.12.2011, which was accepted and partly acted upon by the plaintiff. The plaintiff had concealed the material facts from this Court and had not come up with clean hands. It has been averred that the plaintiff had relied on only two cheques which were already the subject matter of another proceeding as already stated above. On one hand the plaintiff said that plaintiff had dispatched the goods to the defendant and on the other hand the plaintiff also said that the defendant had received the goods at Delhi. This was a futile attempt to file the suit in Delhi. The purchase order filed by the defendant clearly showed that the goods i.e., the belts were delivered at Faridabad. It has been further averred that the plaintiff had created, fabricated a concocted account statement in order to extract money and to cause wrongful loss to the defendant. Defendant denied to be liable to pay Rs. 5,55,236.50 to the plaintiff on account of the payment of the goods supplied by the plaintiff to the defendant as alleged. Defendant submitted the true fact was that the plaintiff was liable to pay Rs. 95,085.00 to the defendant for which a separate counter claim was filed. It has been further averred that the cheques, aforementioned were issued CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 7 of 30 from the account of DMV Venture and not from the account of Mani Farsaiya as alleged. The plaintiff had collected the cheque from Faridabad. Defendant denied that the alleged cheques were handed over by the defendant to plaintiff at Delhi. It has been averred that the plaintiff was given only 25% as advance against the purchase order no. 1088, dated 05.12.2011, but as the plaintiff had not supplied the entire quantity of belts as per the said order, so the plaintiff was not entitled for the said entire 25% amount which comes to Rs. 2,45,125/. The value of belts delivered by the plaintiff and accepted by the defendants was Rs. 1,09,634.00 for the belts supplied and delivered at Faridabad. Though the defendant was not liable to return the goods refused due to non confirmity but the defendant not only returned the goods refused by it but also issued debit note of Rs. 3,17,081.00, which the plaintiff had accepted but the plaintiff had concealed the same from this Court. Now, after setting off the amount of Rs. 3,17,081.00 from the total claim of the plaintiff i.e., Rs. 5,55,236.50, it comes to Rs. 2,38,155.50. As per the purchase order, the belts were supposed to be delivered on or before 28.12.2011, so that the shipment consignment would be dispatched before date 28.12.2012. As the plaintiff delayed the delivery, the defendant was CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 8 of 30 constrained to dispatch the consignment by air cargo and not by ship, which caused huge loss to the defendant. Therefore, the defendant sent another debit note, dated 07.02.2012 of Rs. 3,33,240.00. The plaintiff got notice of the same but refused to accept. The plaintiff made short delivery and forced the defendant to source the deficit quantity from other supplier, which caused delay to dispatch the consignment by the defendant and the defendant had to dispatch the consignment through AIR Cargo. Therefore, the freight charges were to be borne by the plaintiff. Accordingly, after adjusting the amount of Rs. 2,38,155.50 in the debit note amount of Rs. 3,33,240.00, an amount of Rs. 95,085.00 was payable by the plaintiff to the defendant. Defendant averred that he never received any notice from the plaintiff. Also is the averment of the defendant that there was no privity of contract between the plaintiff and proprietor of the defendant, so the proprietor was not personally liable to pay any amount to the plaintiff as alleged. Rather, the plaintiff was liable to pay Rs. 95,085.00 to the defendant, as per counter claim. Defendant denied that plaintiff was entitled to Rs. 5,55,236.50 with interest, rather the plaintiff was liable to pay to the defendant a sum of Rs. 95,085.00 with interest. It has been further averred that on 02.03.2013, the CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 9 of 30 defendant had to pay a sum of Rs. 2,38,154.00 to the plaintiff against the cheques issued by it involved in criminal litigation. The amount was not included in the counter claim and also not mentioned in the original written statement. Therefore, the counter claimant/defendant was also entitled to Rs. 2,38,154.00 in addition to the original counter claim amount of Rs. 95,085.00. Rest of the averments of the plaint have been denied by the defendant in toto and prayed for dismissal of the suit of plaintiff.
4. In the filed counter claim defendant averred that defendant was a proprietorship firm carrying on its business of export of finished goods at Faridabad, Haryana. Plaintiff was a partnership firm at Delhi, who used to supply finished goods as per the order placed by its customers. On 05.12.2012, the defendant had issued purchase order in favour of plaintiff for the supply of 31629 pieces of Rexene Belt with metal buckle @ Rs. 31/ per piece and 25% of total sum i.e., a sum of Rs. 2,45,125.00 was advanced. The delivery date was 28.12.2012. But, the plaintiff did not deliver the entire 31629 number of belts by 28.12.2011 and only delivered 3536 pieces of belts till 03.01.2012. The CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 10 of 30 defendant not only refused to accept the defective belts but also returned the same. It has been further averred that the defendant issued a debit note of Rs. 3,17,081.00 on date 07.01.2012, which was accepted by the plaintiff. Also has been averred that total amount of Rs. 95,085.00 was due from the defendant. Since, the plaintiff had delayed the delivery, the defendant had to procure the deficit belts from other sources to meet the deadline of sending the consignment abroad and also the defendant was constrained to send the consignment by AIR Cargo, so the plaintiff was liable to pay the AIR freight charges to the defendant. The defendant sent debit note to the plaintiff, which was refused to be accepted by the plaintiff without any reason. On 02.03.2013, defendant had to pay in Court Rs. 2,38,154.00 to plaintiff against the cheques issued by it involved in criminal litigation and said sum was not included in original counter claim but later in amended counter claim on it being so allowed to be amended. So, claim of counter claimant from plaintiff was Rs. 3,33,239.00 (Rs. 2,38,154.00 + Rs. 95,085.00).
5. Arihant Trading Company, plaintiff of lead case no. 10236/2016 filed written statement to the counter claim of counter CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 11 of 30 claimant/defendant taking preliminary objections viz., (i) counter claim was a gross abuse of process of law; (ii) the counter claimant/defendant had adopted novel modus operandi to misuse the provisions of law; (iii) the counter claim was a malicious, fraudulent and mischievous conduct of the counter claimant/defendant because the counter claimant/ defendant had admitted his liabilities in the complaint case and made the payment of the complaint amount and after compounding the complaint, the counter claimant/defendant approached the Civil Court and sought to claim the same amount, which he had paid before the Metropolitan Magistrate in the complaint case; (iv) The counter claimant/defendant had not filed the Court fee with respect to the amended counter claim; (v) the counter claim of the defendant had not been filed in the name of the proprietor of the counter claimant/defendant and had not been signed by the proprietor of the counter claimant/defendant and there was no power of attorney on record from proprietor of counter claimant/defendant in favour of the person signing the counter claim; (vi) the counter claimant/defendant had not come to this Court with clean hands and had filed the counter claim on the basis of the forged, false and manipulated documents; (vii) the counter claim has been filed to put pressure on the CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 12 of 30 plaintiff to succumb to the illegal designs of the defendant; (viii) the counter claim had not been verified as per the provisions of Order VI Rule 16 of CPC; (ix) there are contradictions apparent in the counter claim demanding the amounts from the plaintiff. Plaintiff averred that on many occasions the customers visited the place of business of plaintiff at Delhi and also purchased goods on cash payments and also placed orders for the supply of goods. Since, counter claim of the defendant had been filed in September 2012, therefore plaintiff could not have placed order in December 2012. Also has been averred that the payment of Rs. 2,45,125.00 had been made to the plaintiff by the counter claimant/defendant vide cheque no. 0155255, dated 12.12.2011 against the part payment of outstanding payments against the payment of the goods which had been supplied by the plaintiff to the defendant vide their various invoices. The defendant to avoid the payment of his liabilities had concocted the false and frivolous stories and created forged and manipulated documents. Plaintiff denied that any defective material was ever delivered to the defendant by the plaintiff, therefore the question of taking them back did not arise under any circumstances. The plaintiff denied receiving of alleged debit notes from the defendant. It has also CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 13 of 30 been averred that plaintiff was not concerned in what manner the defendant dealt with the material purchased and how, where and in what manner defendant disposed off its consignment, so the question of being liable to pay any alleged AIR freight charges did not arise under any circumstances to the defendant. Plaintiff specifically denied to be liable to pay Rs. 95,085.00 to the defendant. Rest of the averments of counter claim have been denied by the plaintiff in toto.
6. The plaintiff filed replication in the main leading suit denying the contentions contained therein and reiterating those of the plaint.
7. On 30.11.2012, my Ld. Predecessor framed following issues in the main leading suit : ISSUES
1) Whether plaintiff is entitled for the recovery of Rs. 5,55,236.50 as prayed? OPP
2) Whether plaintiff is entitled for interest, if so at what rate and for what period? OPP CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 14 of 30
3) Whether the suit is bad for territorial jurisdiction? OPD
4) Whether there is any privity of contract between the parties? OPD
5) Relief.
8. Though, initially issues were framed in the counter claim on 30.11.2012 by my Ld. Predecessor, but later to amendment in counter claim and on the pleadings of the parties my Ld. Predecessor framed following issues in the counter claim on 08.11.2013 : ISSUES
1) Whether the counter claimant is entitled for recovery of Rs. 3,33,239.00 as prayed for?
Onus upon counter claimant
2) Whether the counter claim is gross abuse of process of law?
Onus upon plaintiff CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 15 of 30
3) Whether counter claimant has not come to court with clean hands and has filed the counter claim on the basis of forged, false and manipulated documents?
Onus upon plaintiff
4) Whether the counter claim has not been verified as per the provisions of Order VI Rule 16 of CPC?
Onus upon plaintiff
5) Relief.
9. In evidence, plaintiff examined its partner Sh. Bimal Kumar Jain as PW1 vide affidavit Ex PW1/A and its Accountant Sh. Radha Krishn Yadav as PW2 vide affidavit Ex PW2/A. PW1 relied upon the documents i.e. (i) certified copies of FormA and FormB of Registrar of Firms are exhibited as PW1/1 and PW1/2, respectively; (ii) letter of authority of plaintiff firm exhibited as Ex PW1/3; (iii) statement of account given exhibit as Ex PW1/4; (iv) certified copies of cheques exhibited as Ex PW1/5 and Ex PW1/6, respectively; (v) the certified copy of cheque return memo of defendant's bankers exhibited as Ex PW 1/7; (vi) certified copy of legal notice exhibited as Ex PW1/8; (vii) CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 16 of 30 certified copy of postal receipts exhibited as Ex PW1/9 and Ex PW1/10, respectively; (viii) copy of returned envelopes exhibited as Ex PW1/11 and Ex PW1/12, respectively; (ix) legal notice exhibited as Ex PW1/13;
(x) postal receipts exhibited as Ex PW1/14 and Ex PW1/15; (xi) acknowledgment card exhibited as Ex PW1/16; and (xii) tracking report exhibited as Ex PW1/17. Both the PWs were crossexamined.
10. Defendant filed on record affidavits of Sh. Manoj Kumar, Authorized Representative; Sh. Vinay Tripathi, Accountant; and Sh. Khayali, Fabric Manager in defendant evidence; but, despite several opportunities these witnesses did not enter into witness box for their examination including crossexamination, so their affidavits cannot be read in evidence per se.
11. Counter claimant/defendant despite various opportunities did not lead any evidence in the counter claim. On 14.09.2016, counsel for plaintiff gave statement for not leading evidence for plaintiff in counter claim.
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12. I have heard Sh. Bimal Kumar Jain, partner of plaintiff and given due consideration to the facts and circumstances of the case, pleadings of the parties, evidence, written arguments filed on behalf of plaintiff and also examined the records of the cases. Despite opportunities neither defendant/counter claimant filed written arguments nor oral arguments were addressed for him.
13. My issue wise findings in the main leading case are as follows: Findings on Issue No(3) Whether the suit is bad for territorial jurisdiction? OPD Onus to prove this issue was on the defendant. No evidence has been led by the defendant to discharge his onus on this issue and to prove that suit was bad for territorial jurisdiction in terms of averments of written statement that defendant was carrying on its business at CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 18 of 30 Faridabad, Haryana, where whole cause of action arose allegedly. In affidavit Ex PW1/A, plaintiff specifically submitted that delivery of goods was taken by representative of the defendant directly from the premises/godown at Delhi and only some times the goods were delivered to the defendant through common carrier to whom the goods were handed over at Delhi at risks and responsibility of defendant. With respect to the afore elicited facts no suggestions to the contrary were put to PW1 in crossexamination through counsel. Accordingly, the plaintiff has been able to prove that delivery of goods were some times taken by representative of defendant from premises/godown of plaintiff at Delhi. It is proved that part of cause of action had arisen within territorial jurisdiction of this Court. Issue no3 is decided against the defendant and in favour of plaintiff accordingly.
Findings on Issue No(4)
Whether there is any privity of contract
between the parties? OPD
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14. No evidence has been led by defendant to discharge his onus on this issue and defendant has failed to prove of there being no privity of contract between the parties. Issue no4 is decided against the defendant and in favour of plaintiff accordingly.
Findings on Issue No(1)
Whether plaintiff is entitled for the recovery
of Rs. 5,55,236.50 as prayed? OPP
15. Para7 of the plaint makes it vivid and clear that the suit of the plaintiff rests on the premise of balance outstanding in the statement of open, mutual and current account in terms of Article1 of the Schedule of The Limitation Act, 1963, which is stated to be to the tune of Rs. 5,55,236.50. Plaint is bereft of particulars of each and every transaction of trade qua supply of goods by plaintiff to defendant and payments received on account or as per invoices in particular.
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16. Perse statement of ledger account of defendant in ledger books of plaintiff given Ex PW1/4 during the course of deposition of PW1; is a computer generated document and thus a secondary evidence in electronic form.
17. In the case of Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473, Civil Appeal No. 4226/2012, decided by Supreme Court on 18/09/2014, it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A of said Act, can be proved only in accordance with the procedure prescribed under Section 65B of said Act; Section 65 B deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer. It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that the Evidence Act does not CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 21 of 30 contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of The Evidence Act are not complied with. Following are the four specified conditions under Section 65B (2) of the Evidence Act: (i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. It was also held in aforesaid precedent that under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 22 of 30 conditions are satisfied: (a) there must be a certificate which identifies the electronic record containing the statement; (b) the certificate must describe the manner in which the electronic record was produced; (c) the certificate must furnish the particulars of the device involved in the production of that record; (d) the certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of The Indian Evidence Act shall yield to be same; Generalia specialibus non derogant, special law will always prevail over the general law. It was also held that Section 63 and 65 of The Indian Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B of The Indian Evidence Act, so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of State (NCT of Delhi) vs. Navjot Sandhu alias CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 23 of 30 Afsan Guru, (2005) 11 SCC 600 does not lay down the correct legal position, which requires to be overruled and was accordingly overruled. It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of The Indian Evidence Act are satisfied. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of Section 65 B of The Indian Evidence Act obtained at the time of taking of document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
18. The statement of account, afore elicited and given Ex PW 1/4 is not supported by any requisite certificate in terms of Section 65B of the Evidence Act containing the prerequisites of SubSections (2) and (4) of Section 65B of Evidence Act in terms of law laid down in Anvar P.V. (Supra). Accordingly, said statement of account given Ex PW1/4 is inadmissible in evidence and cannot be read in evidence as such.
19. It is also the claim of plaintiff through partner PW1 and accountant PW2 that the defendant gave two cheques, copies of which CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 24 of 30 are Ex PW1/5 and Ex PW1/6, which were for the sum of Rs. 1,58,508/ and Rs. 79,646/, respectively and were for the payment of sum of the goods received by defendant and thus in discharge of liabilities of defendant to plaintiff. On presentation these two cheques were dishonoured and complaint under Section 138 N.I. Act was filed before the competent Court of Metropolitan Magistrate. In para19 of affidavit Ex PW1/A, it is own assertion of PW1 that the proprietor of defendant made payment of Rs. 2,38,154.00 on 02.03.2013 vide two demand drafts bearing nos. (i) 101198 of Rs. 79,646.00; (ii) 101199 of Rs. 1,58,508.00, both dated 28.02.2013 to plaintiff in the complaint case titled, "Arihant Trading Company Vs. Mani Farsaiya" before the Court of Metropolitan Magistrate in the case under the provisions of Section 138 of N.I. Act. On record, plaintiff has not been able to connect the issuance of these two cheques, afore elicited to plaintiff towards payment of the goods outstanding as claimed. However, it is a matter of fact that sum equivalent to the sums of the cheques, afore elicited has been received by the plaintiff from defendant before the concerned Court of Metropolitan Magistrate, where the criminal complaint under Section 138 N.I. Act was filed by the plaintiff firm against the defendant proprietor.
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20. Taking note of the fact that plaintiff has failed to prove the open, mutual and current account of defendant in its books as afore elicited, the plaintiff has failed to prove to be entitled for recovery of sum of Rs. 5,55,236.50 as claimed. Issue no1 is decided against the plaintiff accordingly.
Findings on Issue No(2) Whether plaintiff is entitled for interest, if so at what rate and for what period? OPP
21. In view of findings of issue no1, since the plaintiff is not entitled for recovery of sum of Rs. 5,55,236.50, plaintiff is also held not entitled for any interest thereof. Issue no2 is decided against the plaintiff accordingly.
RELIEF
22. In view of my findings on issues no1 and 2, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly.
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23. My issue wise findings in the counter claim are as follows: Findings on Issue No(2) Whether the counter claim is gross abuse of process of law?
Onus upon plaintiff
24. No evidence has been led by plaintiff to discharge its onus on this issue. Plaintiff has not been able to prove that counter claim is gross abuse of process of law. Issue no2 is decided in favour of plaintiff and against counter claimant/defendant accordingly.
Findings on Issue No(3) Whether counter claimant has not come to court with clean hands and has filed the counter claim on the basis of forged, false and manipulated documents?
Onus upon plaintiff CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 27 of 30
25. No evidence has been led by plaintiff to discharge its onus on this issue. Plaintiff has failed to prove that counter claimant has not come to court with clean hands and has filed the counter claim on the basis of forged, false and manipulated documents. Issue no3 is decided against the plaintiff and in favour of counter claimant/defendant accordingly.
Findings on Issue No(4) Whether the counter claim has not been verified as per the provisions of order 6 Rule 16 of CPC?
Onus upon plaintiff
26. The amended counter claim at the end portion has verification clause and is supported by the affidavit of the counter claimant's authorized representative. The plaintiff has not led any evidence to discharge his onus on this issue. Issue no. 4 is decided against the plaintiff and in favour of counter claimant/defendant accordingly.
CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 28 of 30 Findings on Issue No(1) Whether the counter claimant is entitled for recovery of Rs. 3,33,239.00 as prayed for?
Onus upon counter claimant
27. Counter claimant/defendant has not led any evidence to prove asserted facts in amended counter claim for being entitled for sum of Rs. 95,085.00 as well as Rs. 2,38,154.00. The counter claimant/ defendant has failed to prove that it was forced to procure the deficit belts from other sources to meet the deadline of sending the consignment abroad and/or to send the consignment by AIR Cargo, for being entitled for the AIR freight charges. Counter claimant/defendant has also failed to prove that the counter claimant was entitled for any sum of two cheques totaling Rs. 2,38,154.00 for which the counter claimant/ defendant had to pay the same in Magisterial Court in criminal litigation. Issue no1 is decided against the counter claimant/defendant and in favour of plaintiff Arihant Trading Company accordingly.
CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 29 of 30 RELIEF
28. In view of findings on issues no. 1 to 4, afore elicited, the counter claim is dismissed with costs. Decree sheet be prepared accordingly. Copy of this judgment be placed in both files. Files be consigned to record room.
Announced in open Court (GURVINDER PAL SINGH)
th
on 28 Day of November, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) CS10236/2016 Arihant Trading Co. Vs. DMV Ventures Counter Claim CS No. 12907/2016 DMV Ventures Vs. Arihant Trading Co. Page 30 of 30