Delhi District Court
Krishan Pal Singh vs Nutricane Beverages Private Limited on 4 June, 2025
DLSH010031442022
IN THE COURT OF MS. KIRAN BANSAL, DISTRICT JUDGE,
COMMERCIAL COURT-02, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS(COMM) NO. 322/2022
KRISHAN PAL SINGH
Proprietor S.R. Industries
Office at: 28/6, LIC Colony Road,
Dilshad Garden, Delhi - 110095
.....Plaintiff
Versus
NUTRICANE BEVERAGES PRIVATE LIMITED
(A Company Registered under Companies Act)
Regd. Office at:
B-1/H-2, Mohan Co-operative Industrial Estate,
Mathura Road, South Delhi - 110044
Also at:
Nutricane Beverages Private Limited
Gubhana Majri, Jhajjar - 124507, Haryana
Also to:
MR. NEERAJ JALAN (Managing Director)
Nutricane Beverages Private Limited
(A Company Registered under Companies Act)
Regd. Office at:
B-1/H-2, Mohan Co-operative Industrial Estate,
Mathura Road, South Delhi - 110044
....Defendant
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 1 of 28
Date of Institution 11.05.2022
Date of reserve the judgment 23.05.2025
Date of judgment 04.06.2025
JUDG MENT
1. Vide this judgment, this Court shall dispose of the present commercial
suit filed by the plaintiff for recovery of an amount of Rs.5,82,778/- as
principal along with interest @24% per annum against defendant.
2. Shorn off unnecessary details, the case of the plaintiff is, he is the
proprietor of the firm S.R. Industries and running a printing press with the
help of his son Sumit Raghav. Plaintiff has further stated that he provides
excellent quality printouts like label, bags, wrappers, stickers, designer boxes
& other advertisement and packaging items. It is stated that the suit is being
filed by the plaintiff through his son Mr. Sumit Raghav, who is also the AR of
the plaintiff and is competent to file the present suit on behalf of plaintiff.
The defendant is stated to be a private limited company involved in
production, processing and preservation of meat, fish, fruit, vegetables, oils
and fats and other drinking items.
3. It is stated that defendant Company had expressed their willingness to
purchase printed beverages bottles & other advertisement and packaging
items from the plaintiff Company. The defendant had assured that they had
always honored their financial commitments and had requested to avail credit
facilities and had also assured the plaintiff that they will pay the due amount
within a month of invoice date to which the plaintiff agreed and maintained a
separate running account for the business transaction with the defendant. It is
CS (Comm) No. 322/2022
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also stated that defendant Company placed purchase order either written or
telephonically time to time and the plaintiff used to supply the material as
required by the defendant.
4. It is stated that the defendant used to make part payment and after
reconciliation of account, it came to the knowledge of the plaintiff that till the
end of July-2019, a sum of Rs.5,85,778/- was due and outstanding. The
defendant was informed by the plaintiff and the defendant made a request to
keep continue the business relation and also assured to make the payment
within 2-3 months. Thereafter, defendant issued three cheques in faovur of
plaintiff as part payment as per the following details:
a. Cheque bearing no.001256 dated 10.08.2019 for a sum of
Rs.1,84,139/- issued from account maintained in HDFC Bank;
b. Cheque bearing no.000602 dated 10.08.2019 for a sum of
Rs.1,84,965/- issued from account maintained in HDFC Bank;
c. Cheque bearing no.001257 dated 24.08.2019 for a sum of
Rs.2,18,123/- issued from account maintained in HDFC Bank.
5. However, the said cheques got dishonored and returned unpaid. It is
stated that the plaintiff informed the defendant that they intend to initiate the
criminal proceedings u/s 138 of N.I. Act, but the defendant again assured that
they will clear all the dues and due to request of defendant, plaintiff took no
action. Plaintiff has stated that the defendant did not fulfill its commitment
and did not pay the outstanding amount of Rs.5,85,778/-.
6. It is stated that the legal demand notice dated 02.12.2021 was also
issued, but the defendant did not make the payment. It is further stated that
CS (Comm) No. 322/2022
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the payment was to be made by the defendant at the registered office of the
plaintiff where the plaintiff also maintains the ledger account. Plaintiff also
filed application for pre-litigation mediation, but the defendant did not appear
and a non-starter report dated 23.09.2021 was issued.
7. Cause of action stated to have firstly arisen when the defendant
approached to the plaintiff for supply of material. Cause of action further
stated to have arisen in 2018-2019 & 2019-2020, when the defendant placed
the purchase order and plaintiff supplied the material to the defendant.
Further, the cause of action stated to have arisen when the defendant made
part payment and withheld the rest amount as well as assured the plaintiff to
pay the same. Cause of action further stated to have arisen when the
defendant issued cheques in favour of plaintiff and again when the same got
dishonour. It is further stated that cause of action arose when plaintiff sent
legal demand notice and defendant ignored the same. Further the cause of
action stated to have arisen when plaintiff made demand for due payments
before defendant and the same was avoided by defendant.
8. It is stated that defendant with malafide intention and ulterior motive
did not make the payment of the outstanding amount despite repeated
requests and reminder. Further, it is stated that the order for supply of goods
was made at the office of the plaintiff and the payments were also required to
be made by the defendant at the office of the plaintiff which is within the
territorial jurisdiction of the present court to try, decide and entertain the
present suit. Suit is stated to be filed within the limitation.
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 4 of 28
9. Plaintiff has stated that the defendant is also liable to pay interest
@24% p.a. from the last date of invoice i.e. 29.07.2019 till the date of filing
of the suit and further the pendent-lite and future interest. Plaintiff has thus,
prayed for a decree for an amount of Rs.5,85,778/- along with interest @24%
p.a. from 29.07.2019 along with cost of the suit. The plaint is accompanied
with the affidavit of AR of the plaintiff Mr. Sumit Raghav as well as
statement of truth has been filed. Affidavit under Order XI Rule 6(3) CPC in
support of digital evidence also filed.
10. Summons of the suit were issued to the defendant and the defendant
appeared and filed WS along with an application seeking condonation of
delay which was allowed subject to cost and the WS along with statement of
truth, affidavit of admission/denial of the documents of the plaintiff etc. were
taken on record.
11. No document has been filed by the defendant. The defendant in their
WS has stated that the suit is liable to be dismissed as the same has been filed
through an unauthorized person. It is also stated that no cause of action arose
within the jurisdiction of the present Court as the defendant is working for
gain at Jhajjar, Haryana and is having registered office at Mathura Road,
Delhi-110044, therefore, the suit ought to have been filed in the District
Court Jhajjar, Haryana and/or in South East District Saket Courts, New
Delhi. Further, it is stated that the goods i.e. the labels for bottles supplied by
the plaintiff were defective and as the glue on the label as supplied by the
plaintiff did not stick on the bottles, the labels used to break on the machine.
It is also stated that defendant did not receive any notice for pre-institution
mediation.
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 5 of 28
12. Defendant in his WS has denied that the plaintiff has provided
excellent quality printouts like label, bags, wrappers, stickers, designer boxes
and other advertisement and packaging items. Defendant has also denied that
they were involved in the business of production, processing of meat, fish,
fruit, vegetables, oils and fats. According to the defendant, the plaintiff has
approached the defendant for supply and sale of pre-printed bottle lables,
printed beverage bottles, advertisement and packaging items etc.
13. According to the defendant, many of the goods including the
labels/stickers supplied were defective and were not meeting with the quality
and the labels were peelings off on its own from the bottles. According to the
defendant, the plaintiff had assured that they would be providing excellent
quality goods and the defendant need not pay for the invoices as a
compensation for the loss suffered by the defendant and the defendant had
also conveyed the plaintiff that until the defective goods are replaced, they
will not place any further orders.
14. As far as the cheques are concerned, the defendant has taken the plea
that the same were security cheques and the same were not required to be
encashed until the defective goods are replaced. Defendant has thus, prayed
for dismissal of the suit.
15. The defendant in their affidavit of admission/denial of documents have
admitted the following documents of plaintiff:
a. Company Master Data of defendant mentioned at Sr.No.3 in the details
of documents is Ex.P1,
b. Cheques issued by the defendant are Ex.P2, Ex.P3 and Ex.P4
CS (Comm) No. 322/2022
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The correctness of contents, existence and execution of rest of the
documents is denied.
On the basis of the aforesaid pleadings, the following issues were settled for
consideration :-
1. Whether the present court has territorial jurisdiction to try and
entertain the present suit? OPP.
2. Whether the suit has been filed by an unauthorized person? If so, its
effect? OPD.
3. Whether the plaintiff is entitled for a decree in the sum of
Rs.5,82,778.00/- against the defendant? OPP.
4. Whether the plaintiff is entitled to any interest? If so, at what rate
and for which period? OPP.
5. Relief.
16. Plaintiff in support of their case and in order to prove its case, has filed
evidence by way of affidavit of Sh. Sumit Raghav, who has also been
examined as PW-1 and tendered his evidence by way of affidavit as PW1/1A.
He also proved the following documents-
(i) GST Certificate of the plaintiff Mark PW1/A (Colly)
running into 2 pages.
(ii) Original Power of Attorney executed by the plaintiff
Ex.PW1/B.
(iii) Master Data of defendant company MCA Portal
Ex.PW1/C (also Ex.P1)
(iv) Ledger account statement of the plaintiff Mark PW1/D.
(v) All the invoices Mark PW1/E (Colly) running into 12
pages.
(vi) Original cheques Ex.PW1/F (also Ex.P2, P3 & P4)
(vii) Legal demand notice dated 02.12.2021 with postal
CS (Comm) No. 322/2022
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receipt and returned envelope Ex.PW1/G.
(viii) Non-starter issued by DLSA Ex.PW1/H.
17. Plaintiff has filed additional evidence by way of affidavit of Sh. Sumit
Raghav, who has also been examined as PW-1 and tendered his evidence by
way of affidavit as PW1/1A. He also proved the following documents-
(i) GST Certificate of the plaintiff earlier marked as Mark PW1/A
(Colly-running into 2 pages) was later exhibited as Ex.PW1/A.
(ii) Ledger account statement of the plaintiff earlier marked as Mark-
PW1/D was later exhibited as Ex.PW1/D.
(iii) All the invoices earlier marked as Mark PW1/E (Colly-running
into 12 pages) were exhibited as Ex.PW1/E.
(iv) Affidavit under Section 65B of the Indian Evidence Act is
Ex.PW1/I.
(v) Affidavit/ declaration under Order XI Rule 6 CPC is Ex.PW1/J.
PW-1 was cross examined by the defence counsel. Thereafter,
PE was closed on the statement of counsel for plaintiff.
18. The defendant has also not led any evidence despite several
opportunities and hence, the right of the defendant to lead DE was closed,
vide order dated 12.02.2025.
19. The court has gone through the testimony of PW-1 and gone through
the documents proved on record. The court has also perused the record and
considered the arguments advanced by Ld. Counsel for plaintiff and Ld.
counsel for defendant. The issue wise finding of this court is as follows:
ISSUE NO. 1: WHETHER THE PRESENT COURT HAS TERRITORIAL
JURISDICTION TO TRY AND ENTERTAIN THE PRESENT SUIT? OPP.
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 8 of 28
20. Ld. Counsel for the defendant had argued that the present court has no
jurisdiction to the try the present case, in as much as, defendant is working
for gain at Jhajjar, Haryana and is having registered office at Mohan
Cooperative Industrial Estate, Mathura Road, New Delhi- 110044. It is
further submitted by the defendant that the present suit ought to have been
filed in the courts having jurisdiction over Jhajjar, Haryana or South-East
District having jurisdiction over registered address of the defendant.
21. On the other hand, ld. Counsel for the plaintiff has argued that the
present Court has jurisdiction to try the instant case as the cause of action has
arisen within the territorial jurisdiction of this court. It is furthermore
submitted that it was agreed between the parties that all the payments were to
be made at registered office of the plaintiff. It is also argued that the purchase
orders were placed by the defendant to the plaintiff at its registered office
situated at Delhi.
22. The plaintiff to prove the jurisdiction of the case has relied upon the
invoices raised by the plaintiff and the ledger maintained by the plaintiff.
Perusal of the invoices reveals that the goods were dispatched from the
address of S.R. Enterprises i.e. 28/6, LIC Colony Road, Dilshad Garden,
Delhi-110095 and are being supplied at Nutricane Beverages Pvt Ltd,
Bakargarh Road, Village Gubhana, Majri, District- Jhajjar, Haryana.
Moreover, the invoice(s) contain an stipulation that all the disputes are
subject to Delhi Jurisdiction.
23. In this respect, it is relevant to refer to judgment of Hon'ble Delhi HC
in the case of Mohd. Ghous v. Subhash Taneja C.R.P. 204/2023
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 9 of 28
2023:DHC:5647, wherein Hon'ble Delhi HC has held that the place from
where the goods were dispatched and the place where the payment was to be
received are sufficient to confer jurisdiction on the Court. It was held as
follows:
"26. On perusal of the relevant paragraph of the impugned order as
well as the foregoing cases, it is clear that the learned Trial Court had
rightly rejected the applications filed by the petitioner. The fact that
the respondent had supplied goods from Delhi and was legally
entitled to receive payment in a bank situated in Delhi is sufficient
enough to establish that part of cause of action arose in Delhi and the
Courts in Delhi are conferred jurisdiction on the basis of the same. It
is also established that the agreement entered into between the parties
also exclusively conferred the jurisdiction to the Courts in Delhi."
24. The plaintiff in his cross examination has stated that payments were to
be made by the defendant at the registered office of the plaintiff. The relevant
part of the cross examination is as follows:
"It is wrong to suggest that the payments were not to be made by the
defendant to the plaintiff at the registered office. It is correct that the
State Bank of India Branch Udyog Sadan, as has been mentioned in
my invoices, is the branch of SBI having in Patparganj Industrial
Area. It is wrong to suggest that the purchase orders were not raised
at the registered office of the plaintiff.
Q. I put it to you that how many factories/units is the plaintiff across
the country?
A. I have only one factory in Dilshad Garden, Delhi and one in
Sahibabad, U.P.
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 10 of 28
It is wrong to suggest that the plaintiff registered office
is at Sahibabad, U.P. (Vol. we have two firms M/s S.R. Industries and
M/s S.R. Packaging. M/s S.R. Industries is having factory/unit at
Dilshad Garden and M/s S.R. Packaging is having factory/unit at
Sahibabad, U.P.)."
25. Since the purchase orders were placed by the defendant at registered
address of the plaintiff, thus, the present court has jurisdiction to try the case
in view of judgment of Hon'ble Delhi HC in the case of Rana Sugars Ltd. Vs.
Bajaj Electricals Limited, RFA No. 593/2017, dated 19.07.2017. Para 20 of
this judgment is as follows:
"20. At this stage, it is required to be noted that there is no dispute
that part of cause of action arises at Delhi because the appellant/
defendant placed purchase orders upon the respondent/plaintiff at
Delhi. The purchase orders placed upon the respondent/plaintiff were
in the nature of the offers of the appellant/defendant to purchase the
goods from the respondent/plaintiff and it is only when the offer is
accepted at Delhi that the contract is entered into. Since the offer was
given to the respondent/plaintiff at Delhi, acceptance will be at Delhi,
and therefore contract is executed at Delhi and once contract is
executed at Delhi, part of cause of action arises at Delhi and hence
Delhi courts had territorial jurisdiction vide A.B.C. Laminart (P) Ltd.
Vs. A.P. Agencies, Salem (1989) 2 SCC 163."
26. Thus, in view of above discussion, it is held that present court has
jurisdiction to try and decide the present case. Therefore, the issue no. 1 is
accordingly decided in favour of the plaintiff and against the defendant.
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 11 of 28
ISSUE NO. 2: WHETHER THE SUIT HAS BEEN FILED BY AN
UNAUTHORISED PERSON? IF SO, ITS EFFECT? OPD.
27. The onus to prove this issue was upon the defendant. Ld. Counsel for
the defendant has argued that the suit of the plaintiff is not duly instituted as
the power of attorney does not mention that power of attorney holder has
knowledge of the facts of the case.
28. Perusal of the Special power of attorney Ex.PW1/B reveals that Mr.
Krishan Pal Singh has nominated his son Mr. Sumit Raghav to institute legal
proceedings like suits, commercial suits complaints, execution etc and to
contest the case and proceedings, to sign and verify all plaints, pleadings
applications petitions, written statement, reply, deed or documents before the
court and to represent him before court of law. The relevant contents of
special power of attorney is re-produced as follows:
"SPECIAL POWER OF ATTORNEY FOR COURT CASE
THIS POWER OF ATTORNEY I, KRISHAN PAL SINGH, S/O
KAMAL VEER SINGH, resident of 1/6457, East Rohtas Nagar,
Shahdara, Delhi-110032, aged about 56. I am the Proprietor S. R.
Industries, having its Office at 28/6, LIC Colony Road, Dilshad
Garden Delhi-110095 do hereby nominate, constitute and appoint my
son Shri Sumit Raghav, resident of 1/6457, East Rohtas Nagar,
Shahdara, Delhi-110032, aged about 31, as my attorney for me, in my
name and on my behalf to institute, and defend Legal & para Legal
Cases, Suits, Complaint etc. in various courts and do all or any
following acts or things in connection with the court proceedings:
1. To initiate various legal proceeding like suits, Commercial Suits
Complainants, execution, arbitration and writ or any other
CS (Comm) No. 322/2022
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proceedings of like nature against the Defendant/ respondents,
opposite party and non applicants and its principle officers & office
bearer like Suit, Complainants, etc.
2. To represent me before any court of Law or in any Government
Authority, or before any Tribunal, Judicial or non judicial Authority,
to defend and represent the principle.
3. To engage or appoint any solicitor, counsel, advocate pleader or
lawyer to conduct the proceedings on my behalf.
4. To contest the case and proceedings, to sign and verify all plaints,
pleadings, applications, petitions, written statement, reply, deed, or
documents before the court and to deposit, withdraw and receive
document and any more moneys from the court or from the defendant
either in execution of the decree or otherwise and sign and deliver
proper receipts for me and discharges for the same.
.....
7. To do generally all other acts and things for the conduct of the said suit as I could have done the same if I were personally present."
29. In this regard, it is relevant to mention here that on conjoint reading of Order VI Rule 14 and Order III Rule 2 CPC, it is provided that suit may be instituted by some duly authorized person on behalf of the plaintiff and it would include the power of attorney holder. The relevant provision are re- produced as follows:
Order VI Rule 14 CPC: "14. Pleading to be signed-Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 13 of 28 duly authorized by him to sign the same or to sue or defend on his behalf"
Order III Rule 2 CPC: "2. Recognised agents- The recognised agents of parties by whom such appearances, applications and acts may be made or done are-- (a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;"
Thus, the power of attorney can institute the suit in the name of principal on basis of the power of attorney.
30. On the perusal of the above said provision and the contents of the power of attorney executed in favour of Mr. Sumit Raghav, it is clear that Sumit Raghav was duly authorized by the plaintiff to institute the suit on his behalf.
31. Ld. counsel for defendant has argued that the Power of Attorney is dated 13.04.2022 whereas, pre-institution mediation was also instituted by Sumit Raghav, as per the non-starter report Ex.PW1/H and the pre-institution mediation proceedings were instituted on 04.01.2022 and the non-starter report was issued on 24.03.2022 and therefore, as the Power of Attorney was executed later on 13.04.2022, the date on which the pre-institution mediation was initiated, the Attorney Sumit Raghav was not authorized on behalf of the plaintiff to institute the said proceedings. However, in the said Power of Attorney dated 13.04.2022, the plaintiff Krishan Pal Singh has also agreed to ratify and confirm whatever the said Attorney shall do and purport to do.
CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 14 of 2832. As per Section 196 of the Contract Act, when acts are done by one person on behalf of another, then the said person may elect to ratify or to disown such acts and if the said person ratifies the acts of other person, the same effect follows as if they have been performed by his authority. As per Section 197 of the Contract Act, the ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done. The Attorney Sumit Raghav is also son of the plaintiff and by subsequently, issuing Power of Attorney in his name, the plaintiff has ratified the acts done by the Attorney holder on his behalf.
33. Ld. counsel for defendant has also argued that the contents of the Power of Attorney Ex.PW1/B does not mentions the fact that the Power of Attorney has personal knowledge of the facts and thereafter, the suit is not instituted by duly authorized person. However, it is a settled law that personal knowledge of the facts are required for deposing as a witness and not for instituting the suit on behalf of another. Even otherwise, as revealed from the testimony of PW1, Attorney holder of plaintiff and his cross-examination, it is clear that he also has personal knowledge of the facts of the case, inasmuch as, he has stated that he was aware of the facts and circumstances of the case and that he used to do business dealings with the defendant at the office of defendant and he had also met the officials of the defendant.
34. Thus, as far as the institution of the suit is concerned, the suit has been properly instituted by a duly authorized person.
Issue no. 2 is answered accordingly in favour of the plaintiff and against the defendant.
CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 15 of 28ISSUE NO. 3: WHETHER THE PLAINTIFF IS ENTITLED FOR A DECREE IN THE SUM OF RS.5,82,778.00/- AGAINST THE DEFENDANT ? OPP.
35. The onus to prove the issue is upon the plaintiff. The suit is commercial in nature and squarely falls within the purview of Section 2 (1) (C) of Commercial Courts Act and plaintiff has also duly complied with mandatory provision of Pre- Institution Mediation and Conciliation as provided in Section 12 A of Commercial Courts Act, as per the Non-Starter Report dated 24.03.2022 Ex.PW1/H.
36. As far as the territorial jurisdiction is concerned the same has already been discussed above in Issue no. 1 and is thus, not repeated here for sake of brevity.
37. As far as the limitation is concerned, perusal of the record reveals that the last invoice was raised on 22.07.2019 for Rs.49,418/-. The last payment was made by the defendant on 29.07.2019 for an amount of Rs. 1,33,611/-. The period of limitation for filing the present suit is three years. Thus, from the date of last payment, the period of limitation would expire on 29.07.2022. The period of pre-institution mediation from 04.01.2022 to 24.03.2022 is also liable to be excluded in view of Section 12A of the Commercial Courts Act, 2015. The present suit is filed on 11.05.2022. Thus, it is filed within the prescribed period of limitation.
38. The case of the plaintiff is that he is engaged in the business of printing labels, bags, wrappers etc and the defendant is engaged in production, CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 16 of 28 processing and preservation of meat, fish, fruit vegetables, oils and fats etc. It is stated that the plaintiff and defendant agreed to enter into business relationship. It is submitted by the plaintiff that after reconciliation of account, it came to the knowledge of the plaintiff that a sum of Rs. 5,82,778/- is outstanding amount payable by the defendant to the plaintiff.
39. It is averred that after requesting the defendant, three cheques were issued by the defendant towards this liability. However, the cheques were dishonoured. Later, the plaintiff issued a legal notice dated 02.12.2021 to the defendant, but defendant did not pay the outstanding amount. Thus, the present lis.
40. On the contrary, the defendant in his WS has taken the plea that the goods supplied by the plaintiff including the labels/ stickers were defective and were not upto the mark. It is furthermore, stated that the said defect in the goods was deliberated with the plaintiff and the plaintiff had assured that he would provide good quality products in lieu of defective goods and the defendant need not pay the invoices as compensation for loss suffered by the defendant. It is also stated that no amount is due as outstanding payable by the defendant. However, the defendant has not denied the business relationship between the plaintiff and defendant and the delivery of the goods to the defendant. Moreover, the defendant in his affidavit of admission and denial has admitted the cheques issued by them.
41. Firstly, dealing with the defence of defective goods raised by the defendant. At the outset, it is pertinent to note that it has been argued that defective goods were returned to the plaintiff. However, the defendant has CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 17 of 28 not filed any evidence to prove that the goods were returned. The defendant has not filed any ledger account or debit note or return memo to prove that the alleged defective goods were ever returned to the plaintiff.
42. The defendant has not led any evidence to show that the defendant has communicated the grievance qua the defective goods. The defendant has not filed any written/ documentary evidence in this regard to show that return of the goods were made or that goods received were defective.
43. At this stage, it is pertinent to refer to Section 42 of the Sale of Goods Act. As per section 42, if the buyer retains the goods without intimating the rejection of the goods, it is deemed that the buyer has accepted the goods. Section 42 of the Sale of Goods Act is as follows:
"42. Acceptance-The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
44. The onus to prove that the defendant has intimated the rejection of the goods to the plaintiff lies upon the defendant. In the instant case, the defendant has failed to discharge their burden to prove the said plea. Moreover, the defendant has not filed any photograph relating to the defective goods nor has filed any inventory list of the same. Thus, the plea of the defendant that plaintiff has supplied defective goods is not sustainable and seems to be an after-thought and a sham defence. Moreover, in view of CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 18 of 28 Section 42 of The Sale of Goods Act, the defendant is deemed to have accepted the goods.
45. As far as the plea that the no due is outstanding is not also sustainable as the defendant has not filed any bank account statement or other documentary proof that the defendant has made the entire payment and nothing is due to be paid.
46. As far as the testimony of PW-1 is concerned, the defendant has argued that the he is not competent to depose as the Power of Attorney Ex.PW1/B does not mention that he is aware of the facts of the case. It is further argued by the counsel for the defendant that the witness has not properly deposed as to the constitution of the M/s S. R. Industries. It has been pointed out that in para 3 of the plaint it has been described as company; in the examination in chief it is stated to be partnership concern and in the cross examination it is stated to be proprietorship firm. Thus, it is stated that testimony of PW-1 is not reliable. However, the contention of the defendant is not appealing. It is correct that firm of the plaintiff has been described by different legal jargons about its constitutions but such a defect cannot be said to be fatal to the case of the plaintiff. It can not be said that the defendant can evade his legal liabilities solely on this basis. Such a different stand as to constitution of a legal entity can not be said to be a material contradiction so as to affect the decision on merits.
47. It is also important to refer that the plaintiff along with the plaint has filed GST registration certificate of the plaintiff firm. Perusal of the same (Ex. PW1/A) reveals that constitution of business is Proprietorship and the CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 19 of 28 trade name is S.R. Industries having principal place of business at 28/6, LIC Colony Road, Industrial Area, Dilshad Garden, East Delhi, Delhi- 110095.
48. The relevant part of the cross examination of the PW-1 in this respect is as follows:
"Q. Who all are partners in M/s S.R. Industries? A. M/s S.R. Industries is not a partnership firm. It is a sole- proprietorship firm of my father Shri Krishan Pal Singh.
It is wrong to suggest that I have deposed falsely that M/s S.R. Industries is not a partnership firm and is a sole- proprietorship firm.
Q. I have put it to you in examination in chief of today and 01.11.2023, you have represented M/s S.R. Industries as a partnership firm instead of a sole-proprietorship firm. What do you have to say?
A. It is a typographical error. I meant to state that it is a proprietorship firm.
Q. You have stated above that there was a typographical error in your examination-in-chief of today and 01.11.2023 regarding partnership firm, I put to you that apart from a sole-proprietorship of M/s S.R. Industries, your father is also a partner of a partnership firm with the same name M/s S.R. Industries. What do you have to say? A. It is incorrect.
It is wrong to suggest that the printout of the GST certificate (PW1/A-colly) is a forged document. It is correct that apart from GST registration certificate, I have not filed any document to show that my father is the proprietor of M/s S.R. Industries. Vol. Apart from GST certificate, there is no other document which can identify a proprietorship firm.CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 20 of 28
It is wrong to suggest that my father has not authorized me in accordance with law to file the present suit against the defendant company.
Q. I put it to you that Ex.PW1/B is in the nature of a General Power of Attorney instead of Special Power of Attorney in you favour. What do you have to say?
A. The same is a matter of record."
49. In view of the GST Certificate, the constitution of the plaintiff firm, is proprietorship and therefore, the contention of the defendant can not accepted. Moreover, the defendant has not disputed that he was not having business relationship with the plaintiff's firm or has not received the goods from the plaintiff.
50. As far as contention of the defendant that PW-1 is not authorised to depose is also not sustainable, because, as revealed from the above referred testimony of PW-1, he has personal knowledge of the facts of the case and he is deposing it on the basis of personal knowledge and on the basis of the documents filed by the plaintiff. This fact also cannot be ignored that PW1 apart from attorney of plaintiff, is also his son and has been handling the business of plaintiff's Firm on behalf of his father. The relevant part of the cross examination of the PW-1 is as follows:
"It is wrong to suggest that I am not aware of the facts and circumstances of the present case.
It is correct that I am handling the field work and marketing work of M/s S.R. Industries. I am designated as Business Development CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 21 of 28 Manager of M/s S.R. Industries and the same is one (sic.own) by me only and my father is only a mere signatory......"
51. It is pertinent to refer that there is no restriction on any person to depose before the court in a case, if he has personal knowledge of the same. In this regard, it is relevant to refer to section 118 of The Indian Evidence Act, 1872 (Section 124 of The Bharatiya Sakshya Adhiniyam, 2023). The said provision provides that all persons are competent to testify unless they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
52. In this regard, it is relevant to refer to Central bank of India vs Tarseema Compress Wood Manufacturing Company and Others BOM 225 AIR 1997 wherein the defendant has argued that PW-1 had no right to depose about the facts of the case as there was no power of attorney or written authorization in his favour. The relevant part of the judgment is as follows:
"In his cross-examination it is elicited that the witness has no power of attorney or written authorisation to give evidence in the Court. The learned Counsel for the defendants contended at the time of arguments that P.W. 1 has no right to give evidence on behalf of the bank without power of attorney or written authorisation. In my view, this argument, has no merit. Anybody can come and give evidence in Court provided that he is acquainted with the facts of that case. No power of attorney or authorisation is necessary for any witness to give evidence in Court. It may be for filing the plaint, or signing the plaint or signing a written statement an authorisation may be CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 22 of 28 necessary, but to give evidence on oath, anybody, who is acquainted with the facts can give evidence."
53. Thus, the PW-1 is deposing on basis of his personal knowledge and, therefore, he can give evidence in the present case.
54. Now coming on to merits. Since the delivery of the goods is not in question being admitted by the defendant in his WS and also the defence of the defendant qua defective goods is also not proved, thus, the question arising for the consideration is that what is the outstanding amount payable by the defendant.
55. PW-1 in his cross examination, as far as the invoice(s) are concerned, has deposed that invoices were prepared by his accountant and signed by him. The relevant part of the cross examination of PW-1 is as follows:
"It is correct that invoices referred in my evidence by way of affidavit Ex.PW1/E were not prepared by me. (Vol. the same were prepared by the accountant). Though, the same bear my signatures. It is incorrect to suggest that the said invoices have not signed by me Q. I put it to you that in your statement today in the first half you have deposed that the invoices were signed and executed by you and I further put it to you that the same are not signed by you whereas the same has been signed by one person Mr. Rohit. What do you have to say?
A. Rohit is my Accountant. He had prepared the invoices and the same were signed by me.
At this stage, witness is shown Ex.PW1/E i.e. invoice dated 22.07.2019 being invoice no.SR/19-20/215 and after seeing the CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 23 of 28 same, witness states that the same bears his signature at point A. (Vol. I sign by my surname). Again said after a pause that I sign through my surname only on invoices.
Q. In invoice dated 18.07.2019 being invoice no. SR/19-20/211, the same has been signed as Rohit. What do you have to say ? A. It is not necessary that I only sign the invoice anybody else from the office can sign the invoice. (Vol. the signing authority is myself and accountant Rohit).
It is wrong to suggest that the other invoices filed along with suit does not bear my signature. It is wrong to suggest that I have deposed falsely that apart from me the accountant can also sign the invoices. It is wrong to suggest that since in judicial record, my actual signature are there and that's why I have deposed that on the invoices I sign only of my surname.
56. Also, it is an admitted position that the cheques were issued by the defendant (though as per defendant, they were security cheques) and handed over to the plaintiff, presumption regarding the dishonour of cheque as contained in Section 139 of The Negotiable Instruments Act, 1881 is applicable and as per that it shall be presumed that the cheque(s) were issued for legally recoverable debt and the onus to rebut the presumption was upon the defendant. However, the defendant has failed to rebut the presumption by leading cogent evidence.
57. Moreover, the counsel for the defendant has argued that the cheques were given as a security cheque and the plaintiff has mis-used them. In this regard, the plaintiff has deposed that cheques were not given as security cheque. The relevant part of the cross examination of the PW-1 is as follows:
CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 24 of 28"It is wrong to suggest that Ex.PW1/F were given to the plaintiff as security cheque much prior to the commencement of the delivery of the goods and the same were blank cheque except the same were signed by the defendant company. It is wrong to suggest that the name of the plaintiff, the amounts and the date have been filled either by myself or by accountant Rohit or anybody known to us. Q. I put it to you that the three cheques you have referred in your affidavit were not dishonored because of any act of the defendant and the same were also not dishonored and that's why you have not filed the dishonor memo on record. What do you have to say? A. We had presented the cheque and there was no sufficient balance in the account of defendant due to which the cheque were dishonoured. (Vol. the dishnoured memo are old and they may not be available). It is wrong to suggest that I have deposed falsely in this regard."
58. The contention of the defendant that the cheques were given as security cheque and that the plaintiff has deliberately mis-used it and that the defendant has no liability outstanding on its part payable to the plaintiff is not acceptable.
59. Ld. Counsel for the defendant had argued that the suit of the plaintiff is for Rs. 5,82,778/-, as mentioned in the description of the suit/ title of the suit. However, in averment of the plaint and in prayer, plaintiff has prayed for Rs. 5,85,778/-. It is further argued that since the plaintiff has deposed that the suit is based upon cheques, the total amount of cheques is Rs. 5,87,227/-. Thus, it is argued that the suit of the plaintiff must be dismissed.
CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 25 of 2860. Perusal of the record reveals that the suit of the plaintiff is based on the outstanding amount as reflected in the ledger account of the defendant as maintained by the plaintiff. Thus, the plea of the defendant that the amount as prayed for is different and therefore, it should be dismissed is not sustainable. As the amount outstanding as reflected in ledger is Rs. 5,82,778/- and the amount mentioned in the title of the suit is also Rs.5,82,778/-, the suit of the plaintiff can not be dismissed on technical irregularities or typgraphical errors and it has to be decided on merits.
61. The plaintiff has stated that he has filed those invoices against which the defendant has to make entire payment. The relevant part of the cross examination of the plaintiff is as follows "It is correct that I have filed those invoices against which the entire payment was due and payable by the defendant."
62. The defendant has not filed any proof of the fact that he has paid the outstanding amount and nothing remains to be paid by the defendant. Since no document has been filed by the defendant to prove that he has made the entire payment due qua these invoices, thus, the plea of the defendant that nothing is outstanding is also not proved.
63. The plaintiff has proved his case on basis of the 'Pre-ponderance of probabilities' that an outstanding liability of the Rs. 5,82,778/- is pending and the same has not been paid by the defendant. On the other hand, the defendant has not been able to prove his defence of defective goods and that nothing outstanding remains due payable to the plaintiff. Thus, the plaintiff is entitled to decree of the suit to the extent of Rs. 5,82,778/-.
CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 26 of 28Accordingly, issue no. 3 is answered in favour of plaintiff and against the defendant.
ISSUE NO. 4: WHETHER THE PLAINTIFF IS ENTITLED TO ANY INTEREST? IF SO, AT WHAT RATE AND FOR WHICH PERIOD? OPP.
64. The plaintiff has claimed that the defendant is liable to pay pre suit interest @ 24% from 29.07.2019 i.e. from the date of last invoice/ payment till its actual realisation. The plaintiff has also claimed pendente lite and future interest @ 24% p.a. on the principal amount of Rs.5,82,778/-.
65. The plaintiff has not paid the court fees on the amount of pre-suit interest. The plaintiff has also not quantified the pre-suit interest as per Order VII Rule 2A CPC. The plaintiff has claimed the pre-suit interest @ 24% per annum on the basis of the stipulation contained in the invoice.
66. Since, it is a settled law that the such unilateral terms appended on the contract/ invoices are not valid and binding, thus, the interest cannot be awarded at such excessive rate. However, the plaintiff is entitled to interest at reasonable rate of 9% per annum on the principal amount of Rs.5,82,778/- from 29.07.2019 (date of last payment) till its actual realization.
67. Since, the plaintiff has not paid the court fees on the pre-suit interest claimed from 29.07.2019 till date of filing of the suit i.e. 11.05.2022, it is directed that the decree for the interest amount shall be executable only subject to deposit of the court fees in respect of interest amount.
CS (Comm) No. 322/2022 Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 27 of 28ISSUE NO. 5: RELIEF
68. In view of the findings on the above issue, the suit of the plaintiff is hereby decreed in his favour and against the defendant for a sum of Rs.5,82,778/- as principal alongwith interest @ 9% per annum on the principal amount of Rs.5,82,778/- from 29.07.2019 till its realization. However, the decree qua the interest amount will only be executable subject to deposit of court fees. Plaintiff is awarded Rs.50,000/- on account of litigation expenses. Costs of the suit to the extent of court fees is also awarded to the plaintiff as per law.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed by KIRANKIRAN BANSAL BANSAL Date:
Announced in the open Court 2025.06.04
16:21:26 +0530
on 04th day of June, 2025 (Kiran Bansal)
District Judge, Commercial Court-02,
Shahdara,Karkardooma,Delhi/04.06.2025.
CS (Comm) No. 322/2022
Krishan Pal Singh, Prop. S.R. Industries vs. Nutricane Beverages Private Limited Page 28 of 28