Delhi District Court
Shiva Asphaltic Products P. Ltd vs Bhuwan Chandra Pandey on 26 August, 2025
IN THE COURT OF SHRI DEVENDER KUMAR, DISTRICT JUDGE
(COMMERCIAL COURT-01), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 255/2024
M/s Shiva Asphaltic Products Pvt. Ltd.
Through its Authorized Signatory / Director
Having its registered office at:
214, M.J. Shopping Center,
A-3, Veer Savarkar Block,
Shakarpur, Delhi - 110092 ................Plaintiff
Versus
Bhuwan Chandra Pandey
having Office at:-
Malli Maadli, Champawat
Uttarakhand - 262523
Also at:-
Sadar Sakrnara Besarbagar Motor Road
Almora, Uttarakhand - 263667 ................Defendant
Date of institution : 04.09.2024
Date of reserving judgment : 05.08.2025
Date of judgment : 26.08.2025
(Suit for recovery of Rs. 12,42,957/- alongwith pendentelite and
future interest)
JUDGMENT:
1. Vide this judgment, I shall dispose off this suit for recovery of Rs. 12,42,957/- alongwith pendentelite and future interest filed by the plaintiff and against the defendant. Brief facts of the case are as under:
Digitally signed by CS (Comm) No. 255/2024 DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA KUMAR 1/19 KUMAR Date:
2025.08.26 16:18:11 +0530
2. Plaintiff is a private limited company and registered under the Companies Act and is being represented by Mr. Anu Kumar, who is authorized to institute this suit. It is further alleged that the plaintiff is dealing with supply of road construction material and the defendant approached the plaintiff to supply stipulated goods / material i.e. cold mix(drum), bitumen emulsion RS-1 at the site at Sadar Saknara Besrabagar, Motor Road, Distt. Almora. It is further alleged that both the parties had business relationship for the last more than two years and the defendant used to place workorders and the plaintiff used to supply material against invoices and the defendant was making payment on regular basis. It is further alleged that the defendant placed workorder and the plaintiff supplied material at defendant's site on 02.12.2021 but the defendant has failed to pay amount, though he has paid amount upto 23.06.2022. It is further alleged that the plaintiff served a legal notice dated 29.02.2024 but still the defendant failed to pay amount and as per ledger maintained by the plaintiff, an amount of Rs.9,01,520/- is outstanding towards the defendant. It is further alleged that the defendant has not paid legal dues, due to the defendant is liable to pay interest @ 18% per annum against outstanding amount, which is contractual and agreed interest between the parties.
2.1. Plaintiff has further alleged that the plaintiff also approached DLSA, East for pre-institution mediation under Section 12A of Commercial Courts Act but the defendant failed to appear and the case returned back as non- starter on 06.06.2024. It is further alleged that this court has territorial jurisdiction to entertain this suit, as the payment was to be made by the defendant at Delhi, within the territorial jurisdiction of this court. Plaintiff Digitally signed CS (Comm) No. 255/2024 by DEVENDRA KUMAR Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 2/19 Date:
KUMAR 2025.08.26
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has prayed for a decree of Rs.12,42,957/- with interest @ 18% per annum from the date of institution till its realization.
3. Defendant has filed written statement thereby alleging that the defendant is Class-A contractor, registered with PWD Uttarakhand and engaged in work of laying roads in Uttarakhand. It is further alleged that the defendant was awarded a construction contact / tender of laying road in District Almora, Uttarakhand under PMGSY scheme and the defendant placed work order with the plaintiff to supply cold mix (drum), bitumen RS-1 and the plaintiff supplied the material at site against invoice dated 02.12.2021. It is further alleged that the material supplied by the plaintiff was defective and more than 60 unused drums of the material are still lying at the spot. It is further alleged that the defendant collected sample of defective material through laboratory for testing and the sample was collected vide ID No. 201221/51 on 20.12.2021 and sent to ME Laboratory, Harbanswala, Telpur Chowk, Shimla Bypass Road, Dehradun, Uttarakhand. It is further alleged that the material was found defective and not as per specification vide report dated 27.12.2021, due to the defendant is not liable to pay amount for defective material.
3.1. Defendant has further alleged that the defendant has paid entire amount of all previous invoices but the defendant has to suffer losses of Rs.3,56,770/- by supply of defective items, due to the defendant would file a counter claim for suffered losses. Defendant has denied all material facts but has admitted that the plaintiff supplied the material which could not be utilized being not up to standard. It is further alleged that this court has no Digitally signed CS (Comm) No. 255/2024 by DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA KUMAR 3/19 KUMAR Date:
2025.08.26 16:18:28 +0530 territorial jurisdiction to entertain this suit, as invoice was raised by the plaintiff in UP, whereas the defendant has its office in Uttarakhand and nothing had taken place at Delhi. Defendant has prayed that this court has no territorial jurisdiction to entertain this case and this suit is liable to be dismissed.
4. Plaintiff has filed replication to WS thereby denying allegations of the defendant and has reaffirmed its pleadings.
5. From the pleadings of parties, following issues were framed on 27.03.2025 as under:-
ISSUES
1. Whether the plaintiff is entitled for a decree of recovery of Rs.12,42,957/- against the defendant? OPP
2. Whether the plaintiff is entitled for interest pendente lite and future? If so, at what rate and for which period? OPP
3. Whether this Court has no territorial jurisdiction to entertain, try and decide the present suit? OPD
4. Relief
6. To discharge the onus to prove the issues, the plaintiff has examined AR, PW1 Sh. Anu Kumar, who has deposed in verbatim to the plaint and has relied upon documents Ex.PW1/1 to Ex.PW1/10.
6.1. During cross-examination, PW1 has deposed that the plaintiff has filed this suit on the basis of ledger account and not solely upon invoice dated 02.12.2021, which is part of Ex.PW1/3 (colly). It is further deposed Digitally signed CS (Comm) No. 255/2024 by DEVENDRA KUMAR Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 4/19 Date:
KUMAR 2025.08.26
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that last material was supplied by the plaintiff to the defendant against invoice dated 02.12.2021 for Rs.9,01,520/-, whereas the defendant had already paid entire amount of previous invoices and no amount was due except the amount of last invoice dated 02.12.2021. It is further admitted that the defendant purchased the material against invoice dated 02.12.2021 for construction of the road.
6.2 PW1 has further admitted that Rajeev Juneja used to be Vice President Sales and Marketing of the plaintiff company and was authorized to receive orders from the defendant and used to supply the material as per orders, whereas it is denied that the material supplied by the plaintiff to the defendant against invoice dated 02.12.2021 was defective, or that Mr. Rajeev Juneja informed the plaintiff company that the material supplied by the plaintiff was defective, or that the plaintiff should lift the material from site of the defendant. It is further denied that the defendant informed the plaintiff during discussion that 60 drums of defective the material were lying there and should be lifted. It is further deposed that he is not aware whether Mr. Rajeev Juneja has left the plaintiff company, but he is not working presently. He was not aware as to when Mr. Rajeev Juneja left his job, or that he ever communicated the plaintiff company that 60 drums of defective material were lying with the defendant and were to be lifted from there. It is further denied that the defendant has incurred expenditure of Rs.3,56,770/- for relaying of road washed out because of supply of defective material by the plaintiff. It is admitted that the plaintiff has not received any order from the defendant after 02.12.2021, but it is denied that the defendant is not liable to pay any amount.Digitally signed
CS (Comm) No. 255/2024 by DEVENDRA
KUMAR
Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 5/19
Date:
KUMAR 2025.08.26
16:18:40
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7. Defendant has examined DW1, who has tendered his affidavit in examination in chief in verbatim to written statement and has relied upon documents Ex.DW1/A to Ex.DW1/C and Mark A. 7.1. During cross-examination, DW1 has deposed that he is registered contractor with PWD, Uttarakhand since the year 2003-2004, whereas he did not remember from how many suppliers he purchased bitumen material for construction of road at Almora district. It is admitted that he used bitumen supplied by the plaintiff against invoice dated 02.12.2021 but did not provide specification of material to the plaintiff before its supply, whereas material was supposed to be supplied as per norms and specification. It is further deposed that he was communicating Mr. Rajeev Juneja telephonically but never sent any written communication to the plaintiff. It is further admitted that he did not send any communication in writing to the plaintiff regarding supply of defective material, or when the sample was collected to send to laboratory for testing. It is further deposed that he did not remember when he conveyed to Rajeev Juneja in the year 2021 about supply of defective material by the plaintiff. It is further admitted that no official of the plaintiff was present at the spot when official of laboratory collected sample for testing after 15-16 days of supply of the material, whereas he did not remember when the material was dispatched by the plaintiff vide invoice dated 02.12.2021. It is further admitted that he did not send any letter or communication to the plaintiff after receipt of lab test report Ex.DW1/A. It is denied that he has utilized the material supplied by the plaintiff.Digitally signed by DEVENDRA
CS (Comm) No. 255/2024 KUMAR
Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 6/19
Date:
KUMAR 2025.08.26
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7.2. DW2 Rajeev Juneja has deposed that he was Vice President of the plaintiff and all transactions between the plaintiff and the defendant took place in his tenure. It is further deposed that he was authorized by the plaintiff's management to deal with the defendant and used to get orders and plaintiff supplied the material to the defendant under his advice. It is further deposed that the defendant has paid entire amounts of invoices to the plaintiff except amount of invoice dated 02.12.2021, as the material supplied against this invoice was defective. It is further deposed that the road laid by the defendant by using the material supplied by the plaintiff washed away and the material was tested in laboratory and the defendant immediately informed him and he further communicated to the plaintiff and suggested to lift unused drums lying at the spot. It is further deposed that the defendant was in his constant touch and shared all details of the material supplied and he also communicated to management of the plaintiff vide transcript Ex.DW1/B. Report of laboratory is already Ex.DW1/A. 7.2.1. During cross examination, DW2 has deposed that he was present at the time of collection of samples for testing by laboratory. It is further deposed that he used to communicate with CEO of the plaintiff telephonically and through WhatsApp and also used to visit Delhi. His role in the plaintiff company was to procure orders from market, to get realized money from customers and site inspection wherefrom the complaint of defective material was received. It is further admitted that he resigned of the plaintiff company on 05.02.2022, as he had disagreement with CEO of company regarding certain issues. It is further deposed that the plaintiff company was not addressing the complaints of customer and supplying Digitally signed by DEVENDRA CS (Comm) No. 255/2024 KUMAR DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey Date: 7/19 KUMAR 2025.08.26 16:18:52 +0530 goods in unprofessional manner. It is further deposed that the plaintiff supplied the material to 15-16 customers including the defendant through him and he received the complaint from Himalayan Construction, whose complaint was addressed. It is admitted that communication Ex.DW1/B is pertaining to the period after his resignation from the plaintiff company. It is further admitted that CEO of the plaintiff company also sent a voice note on his WhatsApp but he did not hand over transcript of said voice note to the defendant. It is further deposed that he was not conveyed by the defendant about lifting of sample by laboratory officials and the defendant informed him telephonically in the last week of December, 2021 regarding lifting of the material.
7.3. DW3 Mukesh Bedwal, ME Testing and Calibration Laboratory Pvt.
Ltd, has proved report Ex.DW1/A and authority letter Ex.DW3/A. It is admitted that he has not brought document regarding his appointment by company, whereas report was prepared by technician and he was not present at that time. It is further admitted that company has not provided any special permission to him in terms of Clause 4 of Ex.DW1/A at Point A.
8. I have heard the arguments and perused the record. My issue-wise findings are as under: -
ISSUE NO. 3/ Territorial Jurisdiction. I am taking up issue no. 3 first as it pertains to territorial jurisdiction of this court. The onus to prove this issue was put upon the defendant. To discharge the onus, the defendant has examined DW1 Bhuwan Chandra Pandey, whereas he has not deposed any Digitally signed by DEVENDRA CS (Comm) No. 255/2024 KUMAR Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 8/19 Date:
KUMAR 2025.08.26
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fact regarding territorial jurisdiction of this court, either during his examination in chief or cross-examination of PW1. Contrary to it, PW1 Anu Kumar has deposed in Para 16 of his affidavit in examination in chief that this court has territorial jurisdiction to entertain this suit, as part payment was made by the defendant in the plaintiff's bank account at Delhi, and even offer of the defendant to supply material was also received and accepted at Delhi, and even negotiations for supply of material were also held at Delhi. It is further deposed that the material was also supplied from territorial jurisdiction of this court, due to this court has territorial jurisdiction to entertain this case. On the other hand, the defendant has not put even a single question to PW1 to dispute this territorial jurisdiction of this court and entire testimony of PW1 is unrebutted on this aspect.
8.1. However, Ld. Counsel for defendant has argued that this court has no territorial jurisdiction to entertain this suit, as workorder was placed by the defendant at local address of the plaintiff at Mathura, UP and even material was supplied to the defendant in Uttarakhand from same address and bill / invoice was also raised from local office of the plaintiff, which suggests that no part of cause of action had ever arisen at Delhi. It is further argued that if no part of cause of action had arisen at Delhi, then merely on the basis of bank account of the plaintiff at Delhi, this court cannot have territorial jurisdiction to entertain this suit. It is further argued that even preliminary negotiations of workorder may not confer territorial jurisdiction upon, due to this court has no territorial jurisdiction to entertain this case and case is liable to be returned to the plaintiff to present the same before the court of appropriate jurisdiction.
Digitally signed by DEVENDRA DEVENDRA KUMAR CS (Comm) No. 255/2024 KUMAR Date:
Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey 2025.08.26 9/19 16:19:05 +0530 8.2. On the other hand, Ld. Counsel for plaintiff has argued that this court has territorial jurisdiction to entertain this suit, as preliminary negotiations of workorder followed by supply of the material from Delhi causes a substantial cause of action at Delhi and this court has territorial jurisdiction to entertain this case. It is further argued that the defendant has not led any evidence to prove that this court has no territorial jurisdiction to entertain this case, due to plea taken by the defendant is liable to be rejected.
8.3. Admittedly, territorial jurisdiction of the court has to be pleaded in the plaint and its rebuttal must be made in written statement by opposite party. Plaintiff herein has mentioned in Para 16 of the plaint that this court has territorial jurisdiction to entertain this suit, as the plaintiff maintains its bank account within territorial jurisdiction of this court and even part payment of previous transactions was also made in same bank account. It is further alleged that preliminary negotiations and offer and acceptance of workorder was also done at Delhi, due to this court has jurisdiction. On the other hand, the defendant has denied this jurisdiction in written statement and has alleged that this court has no territorial jurisdiction to entertain this suit, as address of the plaintiff pertains to Mathura, UP and the defendant has been carrying business at Champawat, Uttarakhand, and even material was also delivered from Mathura to District Almora. However, the defendant has not led any evidence qua territorial jurisdiction of this court.
Defendant has not conducted any cross examination of PW1 and has also not led any evidence to rebut this fact.
Digitally signedCS (Comm) No. 255/2024 by DEVENDRA
KUMAR
Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 10/19
Date:
KUMAR 2025.08.26
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8.4. No doubt bill invoices Ex.PW1/3(colly) and transporter receipt Ex.PW1/4 have proved that address of the plaintiff M/s Shiva Asphaltic Products Pvt. Ltd. at Village Gauhari, PO Dautana, Kosi Kalan, District Mathura, UP. Even GST number is also registered in UP. The destination of delivery of the material was at District Almora, Uttarakhand, which is duly corroborated by transport receipt Ex.PW1/4 also. However, Ex.PW1/3(colly) contains Company's bank details i.e. HDFC Bank Ltd., Account No. 50200019884526, Preet Vihar Branch, Delhi. Ld. Counsel for plaintiff has vehemently argued that this bank account of the plaintiff mentioned in tax invoices creates part of cause of action, due to this court has territorial jurisdiction to entertain this suit.
8.5. Admittedly, the onus to prove a fact lies upon a party who alleges a fact and would fail, if no evidence is led. Section 104 - 107 of BSA, 2023 (Section 101-104 of erstwhile Evidence Act) deal with burden of proof viz- a-viz onus of proof and distinction between burden of proof and the onus of proof has been dealt with by Hon'ble Apex Court in case titled Anil Rishi vs Gurbaksh Singh, AIR 2006 SC 1971 and relevant observation as under:
The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, (now 104 of BSA) which reads as under:-
"Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Digitally signed CS (Comm) No. 255/2024 by DEVENDRA KUMAR Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA 11/19 Date:
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Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
8.6. Further, in case titled Parimal vs Veena @ Bharti, AIR 2011 SC 1150, it has held that;
15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
Digitally signed by DEVENDRA KUMARCS (Comm) No. 255/2024 DEVENDRA Date: Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey KUMAR 2025.08.26 12/19 16:19:22 +0530 8.7. In view of abovesaid legal proposition, it stands proved that the onus to prove to dispute territorial jurisdiction of this court was upon the defendant, but the defendant has not led any evidence to prove that this court has no territorial jurisdiction to entertain this court. Contrary to it, Hon'ble High Court of Delhi has held in case titled Auto Movers v. Luminous Power Technologies Pvt. Ltd., 2021 SCC Online Del 4387 that:
22. When, in the present case, the part cause of action has arisen also on account of the payments made by the petitioner/defendant directly into the bank account of the respondent/plaintiff, even if these were not on regular basis, since there is nothing to show that the place of payment had been fixed, even without following the principle that the 'debtor must seek out the creditor', it is clear that the Delhi Courts have jurisdiction to try the suit and the invoice does not vest jurisdiction in a court which had no jurisdiction at all.
8.8. As such, bill invoice contains the place of payment at Delhi, which has conferred territorial jurisdiction upon this court to entertain this case.
The defendant has failed to discharge the onus to prove this issue no.3 and issue is decided in favor of the plaintiff and against the defendant.
9. ISSUE Nos. 1 & 2 - The onus to prove both issues was upon the plaintiff and to discharge the onus, the plaintiff has examined PW1 Anu Kumar. Both the parties have raised multiple pleas due to findings on those pleas are required.
9.1. Authority of AR/ PW1 to file Case - Plaintiff is a private limited company and is being represented by AR Anu Kumar. The authority of Anu Kumar as authorized representative is not disputed by the defendant. However, still PW1 has proved his authority Ex.PW1/1 and information of company, which have duly proved that PW1 is not only authorized to Digitally signed by CS (Comm) No. 255/2024 DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA KUMAR 13/19 KUMAR Date:
2025.08.26 16:19:27 +0530 institute this suit but also to depose on behalf of the plaintiff and institution of this suit stands proved.
9.2. Past relationship between the parties and supply of material -
Plaintiff has alleged that both the parties had business relations for the last more than two years and the defendant used to place workorders and the plaintiff was supplying material as per workorders. This past relationship of the parties is not denied by the defendant and their past business relationship stands proved.
9.3. Supply of material - So far as supply of material by the plaintiff to the defendant is concerned, the plaintiff supplied the material to the defendant and this fact is not disputed by the defendant. PW1 has proved that the defendant approached the plaintiff company to supply cold mix, bitumen, emulsion RS-1 at District Almora and the plaintiff supplied accordingly. It is further proved that the plaintiff supplied the material from time to time to the defendant against invoices Ex.PW1/3(colly) and last supply was made against invoice dated 02.12.2021 through transport receipt Ex.PW1/4. It is further proved that as per statement of account/ ledger of the defendant maintained by the plaintiff Ex.PW1/5, an amount of Rs.9,01,520/- is outstanding towards the defendant, which was not paid by the defendant despite service of legal notice Ex.PW1/7. PW1 has admitted during cross-examination that last material was supplied by the plaintiff to the defendant against invoice dated 02.12.2021 for Rs.9,01,520/-, whereas previous dues against all other invoices had already paid. Even, DW1 has also admitted that the plaintiff supplied this material against invoice Digitally signed by DEVENDRA CS (Comm) No. 255/2024 KUMAR DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey Date: 14/19 KUMAR 2025.08.26 16:19:33 +0530 Ex.PW1/3 (Colly) including invoice dated 02.12.2021. As such, factum of delivery of the material stands proved.
9.4. Whether material supplied by the plaintiff was defective and the defendant suffered losses - Defendant has alleged that the material supplied by the plaintiff was defective and loss was suffered by the defendant on account of repairing of road damaged by supply of defective material. It is further alleged that the defendant informed the employee of the plaintiff Mr. Rajeev Juneja / DW2 about supply of defective material and also that 60 unused drums of defective material were lying with the defendant. However, PW1 has shown his ignorance about any communication between the defendant and DW2 Rajeev Juneja, or that Mr. Rajeev Juneja further communicated to director of the plaintiff company about supply of defective material or that 60 unused drums of defective material were to be lifted. Rather, PW1 has denied that the defendant ever incurred any expense of Rs.3,56,770/- for relaying of road washed out by traffic because of supply of defective material. As such, PW1 has not admitted that the material supplied by the plaintiff was defective, due to onus to prove this fact lies upon the defendant.
9.5. However, DW1 Bhuwan Chandra Pandey has admitted that he did not provide any specification of the material to the plaintiff to supply specific material against invoice dated 02.12.2021. It is further admitted that he never made any written or oral communication to the plaintiff regarding supply of defective material and rather communicated to one employee of the plaintiff and informed him that the material supplied by Digitally CS (Comm) No. 255/2024 signed by DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey KUMAR 15/19 DEVENDRA KUMAR Date:
2025.08.26 16:19:43 +0530 the plaintiff was defective. Defendant has examined said employee as DW2 Rajeev Juneja. DW1 has deposed that he informed DW2 telephonically regarding supply of defective material and DW2 has also corroborated this fact and has further deposed that he communicated to the plaintiff also and asked to lift defective material from the site.
9.6. However, before ascertaining reliability of the testimony of DW2, it is necessary to go through terms and conditions of workorder agreed between the parties. Tax invoice Ex.PW1/3 (colly) is a document by which the material was supplied to the defendant and terms and conditions of this invoice, which may be considered agreement between them, are as under:-
1. Complaint about quality must be reported to us in writing a weak of arriving the consignment at destination.
2. This bill should be paid immediately, otherwise interest @ 18% shall be charged.
3. We accept payment through UPI, Debit & Credit Card and Bank.
9.7. In view of condition no. 1 is regarding supply of defective material, it was categorically agreed between the parties that any complaint about quality must be reported to the plaintiff in writing within a week of receipt of the consignment at destination. As such, term mandates that any complaint regarding quality issue of the material must be communicated to the plaintiff in writing within a week of receipt of material from the plaintiff. However, in this case, DW1 has admitted that no such written communication was ever made by the defendant and oral communication Digitally signed by DEVENDRA CS (Comm) No. 255/2024 DEVENDRA KUMAR Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey 16/19 KUMAR Date:
2025.08.26 16:19:49 +0530 was never agreed between them. As such, issue of defective material was not raised by the defendant according to agreed terms of invoice.
9.8. So far as testimony of DW2 is concerned, it is not reliable on two aspects, firstly DW2 is an ex-employee of the plaintiff and had difference with his CEO and being ex-employee, it may not be ruled out that he has supported the defendant to take revenge from the plaintiff, secondly DW2 has admitted that he did not communicated voice note sent by CEO to the defendant, which suggests that DW2 has not brought complete facts on record. Further, DW2 has admitted that his role and duties were to procure workorders from the market, to realize money from customers and site inspection, whereas he had already resigned when the defendant contacted him but still entertained it, which suggests that DW2 was in contact of customers of the plaintiff which any authority and reason, due to testimony of such witness cannot inspire confidence. DW2 has also admitted that WhatsApp communication Ex.DW1/B was sent by the defendant to him after resignation which proves his connivance with the defendant.
9.9. Even, it is assumed for the sake of arguments that the defendant communicated telephonically to DW2 about supply of defective material, then also telephonic conversation was not according to terms and conditions of invoice/s agreed between the parties. As such, the testimony of DW2 has failed to prove that the material supplied by the plaintiff was defective.
9.10. Effect of testing of material from Laboratory- Further, the defendant has alleged that the material supplied by the plaintiff was Digitally signed CS (Comm) No. 255/2024 by DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA KUMAR 17/19 KUMAR Date:
2025.08.26 16:19:54 +0530 defective, due to he got collected and examined sample of defective material through laboratory and found defective. DW3 has proved testing report of ME Testing and Calibration Laboratory Pvt. Ltd. as Ex.DW1/A. However, DW3 was / is not a competent witness to prove this report, as neither he prepared report nor report was prepared in his presence. Contrary to it, DW1 has admitted that sample of defective material was collected after 15-16 days of supply of the material and that too without any information to the plaintiff. In fact, the defendant neither informed the plaintiff about its intention to send defective material to laboratory for quality check nor asked the plaintiff to depute any authorized person at the time of collection of sample of the material, due to it could not be proved that only sample of defective material was collected by laboratory to prepare report Ex.DW1/A. The defendant was supposed to communicate to the plaintiff before sending defective material for testing to laboratory so that authenticity of defective material could be curtained. In fact, the defendant has not ensured impartiality in quality check, due to defense of the defendant could not be proved that the material supplied by the plaintiff was defective.
9.11. Since the defendant has failed to prove that the material supplied by the plaintiff was defective, accordingly the defendant is liable to pay amount of the material supplied by the plaintiff against invoice dated 02.12.2021 for Rs.9,01,520/-. Plaintiff has discharged the onus to prove issue no.2 and this issue is decided in favor of the plaintiff and against the defendant.
Digitally signed by CS (Comm) No. 255/2024 DEVENDRA Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey DEVENDRA KUMAR 18/19 KUMAR Date:
2025.08.26 16:19:59 +0530
10. Rate of interest - So far as rate of interest against outstanding amount is concerned, the plaintiff supplied the material to the defendant and the transaction between the parties was commercial in nature and the defendant has deprived the plaintiff from its legitimate dues, due to the defendant is liable to pay interest against outstanding amount. In fact, the plaintiff would have earned some interest from this amount, if due amount would have been paid in time, due to the plaintiff shall be entitled for interest against outstanding amount. Plaintiff has claimed interest @ 18 % per annum, which seems excessive, due to the plaintiff shall be entitled for interest @ 12% per annum from the date of invoice dated 02.12.2021 upto date of realization of amount. Plaintiff has discharged the onus to prove this issue and this issue no.3 is also decided in favor of the plaintiff and against the defendant.
11. Relief:- Plaintiff has discharged the onus to prove issue no. 2 & 3 and is entitled for relief claimed in this suit. Plaintiff has proved that the defendant is liable to pay outstanding amount along with interest, accordingly, a decree of Rs.9,01,520/- along with interest @ 12% per annum, payable w.e.f. 02.12.2021 till its realization, is hereby passed in favor of the plaintiff and against the defendant. Plaintiff further shall be entitled for cost of the suit. Decree Sheet be prepared accordingly. File be Digitally signed consigned to Record Room. by DEVENDRA DEVENDRA KUMAR KUMAR Date: 2025.08.26 ANNOUNCED IN OPEN COURT 16:20:06 +0530 ON 26th day of August, 2025 (DEVENDER KUMAR) District Judge (Commercial Court-01) East District Karkardooma Courts, Delhi CS (Comm) No. 255/2024 Shiva Asphaltic Products Pvt. Ltd. vs Bhuwan Chandra Pandey 19/19