Delhi District Court
M/S. Vin Industries vs Anand Nishikawa Co. Ltd on 20 July, 2016
ID No.02401C0290742012
IN THE COURT OF Dr.VIJAY KUMAR DAHIYA: ADDL.
DISTRICT JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
New CS No.15515/16 (Old CS No.262/2015)
M/s. Vin Industries
through its Partner
Sh. Rohit Sharma
Having its office at
CB385, Room No.205.
Indira Market, New Delhi110028. ...........PLAINTIFF
VERSUS
Anand Nishikawa Co. Ltd.
Through its Managing Director
Anbros House, East Patel Nagar,
New Delhi110008
Also at:
34 KM, ChandigarhAmbala Highway,
Lalru, District Sas Nagar (Mohali),
Punjab140501 ...........DEFENDANT
Date of Institution : 03.07.2012
Date when the case reserved for Judgment : 20.07.2016
Date of Judgment : 20.07.2016
J U D G M E N T
The plaintiff filed the present suit for recovery of Rs.12,30,134/
along with pendentelite and future interest @ 18 % p.a. against the
defendant.
1. Brief facts of this case is that the plaintiff company is a registered
1/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
partnership firm incorporated under the Partnership Act, 1932 having its
Office at CB385, Room No.205, Indira Market, New Delhi110028. Mr. Rohit
Sharma, partner of the plaintiff firm is duly authorized to sign, verify, file
and prosecute legal proceedings for and on behalf of the plaintiff against the
defendant. It is stated that the defendant is a registered company under the
provisions of the Companies Act, 1956 and having its office at Anbros House,
East Patel Nagar, New Delhi110008 and also at 34 KM, ChandigarhAmbala
Highway, Lalru, District Sas Nagar (Mohali), Punjab140501. It is further
stated that the defendant had placed an order of Calcium Oxide Coated / Vin
Flex NV5 and Vin Gran S80 with the plaintiff vide purchase orders dated
01.10.2007, 01.11.2007, 29.11.2007 and 02.01.2008 for the business purpose.
The plaintiff firm at the request / instructions of the defendant supplied the
said material amounting to Rs.6,47,439/ to the defendant under the
following invoices:
Date Invoice No. Amount (Rs.)
18.09.2007 424 Rs.26,452.00
22.09.2007 443 Rs.44,511.45
27.09.2007 454 Rs.67,009.35
09.10.2007 483 Rs.01,272.05
12.10.2007 497 Rs.13,287.00
12.10.2007 498 Rs.31,224.45
15.10.2007 505 Rs.44,511.45
18.10.2007 514 Rs.44,511.45
22.10.2007 523 Rs.44,511.45
26.10.2007 533 Rs.22,587.90
05.11.2007 591 Rs.44,511.45
17.11.2007 615 Rs.44,511.45
23.11.2007 628 Rs.08,512.95
30.11.2007 648 Rs.31,224.45
11.12.2007 673 Rs.44,511.45
2/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
31.12.2007 727 Rs.44,511.45
25.01.2008 778 Rs.44,511.45
02.02.2008 794 Rs.22,587.90
12.02.2008 809 Rs.22,587.90
TOTAL: Rs.6,47,439.00
2. It is further stated that the said Calcium Oxide Coated / Vin Flex
NV5 and Vin Gran S80 was received by the defendant against which the
defendant had issued Form "C" nos. 5520526, 5520527 and 5520528 dated
15.06.2009 as acknowledgment receipt. The plaintiff sent numerous
reminders requesting the defendant to pay the due amount of Rs.6,47,439/
but the defendant failed to pay the said due amount. Thereafter, the plaintiff
had sent a legal notice dated 05.06.2012 to the defendant to pay the entire
due amount along with interest @ 18% per annum from the due date
including future interest i.e. till the date of realization of the amount. The
said notice was duly served on the defendant but the defendant has failed to
refund the aforesaid due amount while denying its liability to pay the
abovesaid due amount through false, concocted and vague emails. It is
further averred that the plaintiff firm is entitled to recover a sum of
Rs.12,30,134/ and the details are given as under:
Principal Amount: Rs.6,47,439.00
Interest @ 18% pa on the due amount Rs.5,82,695.00
Total Rs.12,30,134.00
3. During course of arguments, at the time of consideration, ld.
counsel for the plaintiff made a statement for treating the present suit as an
ordinary suit. Accordingly, the present suit was treated as an ordinary suit.
Summons for settlement of issues was issued to the defendant. In response
3/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
thereto, the defendant filed the written statement (WS) stating therein that
suit of the plaintiff is not filed and verified by the authorized person. Copy of
partnership deed has not been filed by the plaintiff. There is no cause of
action arisen against the defendants as the defendants have paid all monies
that were owned by the plaintiff. The plaintiff has suppressed the material
facts and has not come before this court with clean hands and suit liable to be
dismissed under the provisions of Order 7 Rule 11 CPC. The suit is barred by
limitation.
4. On merits it is submitted that defendant has placed an order for
supply of the goods and goods were supplied but those goods were of inferior
quality and did not meet the requirement of the defendants. However, the
defendant without raising any controversy accepted the delivery of those
goods and had in fact completed payment towards the goods so supplied by
the plaintiff. Perusal of the ledger account of the defendant reveals that all
the payment has been made by the defendant. The invoices involved in the
suit pertains to the year 200708. therefore, the suit is hopelessly barred by
limitation. Mere issuance of legal notice does not create any cause of action
in favour of the plaintiff on 05.06.2012. the plaintiff is not entitled to any
amount or amount of Rs.12,30,124/. The defendant accepted the delivery of
the goods despite inferior quality of such goods and have made payment as
demanded by the plaintiff through various invoices. Details of the invoices
given by the plaintiff is contrary to the documents filed by the plaintiff in as
much as invoice no.424 is for Rs.26,452/ however, in the documents this
invoice detailed as an amount of Rs.44,511.45. The invoice no.628 for an
amount of Rs.8,12,000.95 has never been issued and no material has been
supplied to the defendant. The defendant in para 6 has admitted that
delivery of the goods is not disputed and defendant for inferior quality of
goods paid the entire price of the said goods. No notice dated 05.06.2012 has
4/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
been received by the defendant. It is denied that the cause of action accrued
on 15.06.2009 when CForm was issued by the defendant and received by the
plaintiff. The plea that cause of action accrued on 05.06.2012 is misconceived
and erroneous.
5. In response to the written statement filed by the defendant,
plaintiff firm has filed replication, thereby denying each and every averments
took in the written statement and reiterated the averments made in the
plaint.
6. From the pleadings of the parties, on 05.01.2013 the following
issues were framed by the Ld Predecessor of this court :
(1) Whether the plaint is liable to be rejected for want of
cause of action? OPD
(2) Whether the plaintiff is guilty of suppressing of
material facts? If so, its effects? OPD
(3) Whether the suit is barred by limitation? OPD
(4) Whether the suit has not been filed through
authorized person? OPD
(5) Whether the plaintiff is entitled for decree for the
suit amount? OPP
(6) Whether the plaintiff is entitled for pendente lite
and future interest on decree amount? If so, at what
rate? OPP
(7) Relief, if any.
7. The plaintiff firm in order to prove its case led evidence, its Vice
President Sh. Rohit Mahajan appeared as PW1 and tendered his affidavit in
5/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
evidence is Ex.A. He relied upon the following documents namely authority
letter dated 17.02.2014 as Ex.PW1/1; Partnership Deed dated 09.12.1998 as
Ex.PW1/2; registration Certificate as Ex.PW1/3; Purchase Orders dated
01.10.2007, 01.11.2007, 29.11.2007 & 02.01.2008 as Ex.PW1/4 (colly);
Computer generated 19 invoices as Ex.PW1/5; Certificate under Section 65B
of the Evidence Act as Ex.PW1/6; Ledger account w.e.f. 01.04.2007 to
26.06.2008 as Ex. Ex.PW1/7; Two original postal receipts as Ex.PW1/8;
Photocopies of FormC nos. 5520526 to 5520528 dated 15.06.2009 as Mark
"A" to Mark "F" and two photocopies of legal notice dated 05.06.2012 as Mark
"G" and "H". PW1 was cross examined by the Ld. Counsel for the defendant.
8. The defendant in its defence, brought its Deputy Manger Sh.
Naresh K. Maheshi as DW1 and tendered his affidavit in evidence is
Ex.DW1/A. He relied upon computer generated copies of statement of
account as Mark "A" and Mark "B". DW1 was crossexamined by the Ld.
Counsel for the plaintiff.
9. I have heard Ld. Counsel for the parties and have gone through
the record of this case.
My issue wise findings are as under:
ISSUES NO.3, 5 & 6
10. These issues are overlapping each other. To prove its case
plaintiff led evidence and PW1 appeared and testified through evidence
affidavit Ex. PW 1/A and proved certain documents. To rebut the case of the
plaintiff defendant also led evidence. Defendant examined Deputy Manger
Sh. Naresh K. Maheshi as DW1 who testified through affidavit as Ex.DW1/A
and reiterated the assertions made in the written statement and also proved
6/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
certain documents.
11. During the course of arguments ld. Counsel for the plaintiff has
contended that goods were supplied to the defendant through invoices and
defendant has issued CForm in this regard. The defendant never raised any
complaint with regard to the quality of the goods supplied but for the first
time raised this issue in the WS. The defendant has admittedly accepted the
delivery of the goods. The account between the parties was an open, current,
running and non mutual account, as per the definition of current, open
account and running account. He has relied upon " Bharath Skins
Corporation vs. Taneja Skins Company Pvt. Ltd. " 186 (2012) DLT
290, The cause of action accrued when notice of recovery was issued by
plaintiff to the defendant. In this regard, he has relied upon "Shiv Raj
Gupta vs. Deshraj Gupta" 196 (2013) DLT 14, "Shah Construction Co.
Ltd. vs. Municipal Corporation of Delhi" AIR 1985 Delhi 358, "Laxmi
Chand Yadav vs. Allahabad Bank" 1992 (7) CCC (M. P.) 6.
12. It is further submitted that therefore, the limitation will start
from the date when the right to suit will accrue and the claim of the plaintiff
accrued when the claim of the plaintiff was denied in response to the legal
notice dated 05.06.2012. It is further submitted that the defendant has
admitted in the WS that they have placed purchase order to the plaintiff for
supply of raw material. The defendant also admitted that defendant accepted
the delivery of the goods. It is submitted that the defendant has admitted the
supply, delivered through various invoices raised by the plaintiff. Mode of
payment also lead to conclusion that account was an open, current, running
and non mutual account and payment of Rs.3,85,280/ are lump sum payment
made by the defendant to the plaintiff. The said payment did not correspond
to any specific invoices. The defendant has placed no document except excel
7/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
sheet mark A which also did not depict that defendant has made excess
payment of the goods supplied. Therefore, defendant has admitted the
transaction between the parties and admission is the best evidence.
Therefore, suit of the plaintiff deserves to be decreed. In this regard reliance
is placed upon " Biswanath Prasad vs. Dwarka Prasad" AIR 1974 SC
117, Thiru John vs. The Returning Officer" AIR 1977 SC 1724.
13. Per contra ld. counsel for the defendant submits that suit is
barred by limitation as the account between the parties was not an open,
current, running and non mutual account, otherwise, bill to bill payment
was made by the defendant to the plaintiff and therefore, the transaction is
covered by Article 14 of the Limitation Act as such, the ratio of Bharath
Skins (supra) is not applicable and Article 14 ScheduleI of Indian Limitation
Act is applicable in the present case. In this regard, he has relied upon
"Ashok Parshad vs. M/s Mahalaxmi Sugar Mills Co. Ltd."
MANU/DE/3137/2013, "Kal Cable Pvt. Ltd. vs. Shalini Zen TV
Network" MANU/TD/0035/2015. It is further contended that the cause of
action accrued from the date of last payment made by the defendant and
article 14 will apply, reliance is placed upon, "Godrej and Boyce
Manufacturing Company Ltd. vs. Secur Industries Ltd."
MANU/UP/0758/2013. The issuance of CForm will not extend period of
limitation, reliance is placed upon "Tajpak Ltd. vs. Ram Kishore" 2007 (3)
ARBLR 402 (Delhi).
14. It is further contended that plaintiff has not pleaded in the plaint
that there was an open, current and running account between the parties
and such plea has not been taken in the plaint and therefore, account
between the parties cannot be taken as open, current, running and non
8/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
mutual account. In this regard, reliance is placed upon "The Hindustan
Forest Company vs. La. Chand" MANU/SC/0147/1959 and "Gujarat
Heavy Chemicals Ltd. vs. Diwan Mundhra Bros Pvt. Ltd."
MANU/DE/4873/2012.
15. It is further submitted that the plea of open running current
account and non mutual account taken in replication is of no use as the
replication is of no use as the replication is not a part of the pleadings. In
this regard reliance is placed upon "Anant Construction vs. Ram Niwas"
MANU/DE/0407/1994. It is further submitted that no suggestion has been
given to the DW1 that the amount of opening balance as stood debited in the
name of plaintiff in the statement of account of defendant. Therefore, the
said amount is outstanding in the account of the defendant is deemed to be
admitted. Reliance in this regard is placed upon "Suresh Chand Mathur
vs. Harish Chand Mathur" MANU/DE/2962/2010.
16. It is further admitted that documents have been exhibited without
being proved and mere exhibition does not mean that the document is proved
and cannot be read in evidence. Reliance is placed upon " Sudhir
Engineering vs. Nitco Roadways" 1995 (34) DRJ 86. DW 1 is having
personal knowledge of the facts of the present case, therefore, he did not
require any authority to depose on behalf of the defendant. Reliance in this
regard is placed upon "Shashiv (Bharat) vs. Indrus Business
Development" 2015 X AD (Delhi) 348.
17. It may be noted that PW1 has testified that goods i.e., calcium
oxide coated Vin Flex NV5 and Vin Gran S80 was supplied through invoices
no.424, 443, 454, 483, 497, 498, 505, 514, 523, 533, 591, 615, 628, 648, 673,
9/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
727, 778, 794 and 809 for an amount of Rs.6,47,349/. The amount involved in
the invoices is alleged to have not been paid and invoice no.424 has been paid
partly. So far as the delivery is concerned, the defendant has not specifically
denied that the goods in terms of the said invoices were not received by the
defendant but an evasive defence has been taken that the goods were
defective. The defendant has contended that bill no.60010 for an amount of
Rs.35,874.90 has not been claimed by the plaintiff, therefore, this evasive
denial by the defendant cannot tantamount to denial on behalf of the
defendant. The defendant has admitted in the WS that the defendant
received goods from the plaintiff but goods were of substandard quality. The
defendant has not placed on record any document in this regard. Otherwise,
also the defendant have transaction with the plaintiff since year 2001 and
defendant never put forth any grouse nor raised any Debit Note in respect of
the alleged substandard goods and further more, as per the invoices, the
goods were supplied to the defendant with quality certificate as per the
condition detailed in purchase order raised by the defendant. Had the goods
supplied by the plaintiff were of inferior quality, the defendant would not
have accepted these goods, therefore, it cannot be held that the goods were
not supplied to the defendant by the plaintiff and pleadings of the defendant
lead to conclude that goods were supplied to the defendant and there is
admission on the part of the defendant. In this regard reliance is placed upon
Biswanath (supra) and Thirujohn (supra). In addition to it, it may be noted
that all the above said invoices are detailed in the CForms Ex. PW 1/ 9,
except invoice no.628. Therefore, delivery of the goods in terms of the
aforesaid invoices is duly proved on record by the plaintiff and the defendant
failed to prove that there was any defect in the goods so supplied by the
plaintiff.
18. Now the question arises whether there is running, current, open
10/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
and non mutual account between the parties covered by Article 113 of
Schedule I of Limitation Act or Article 14 in as much as the admitted case of
the defendant is that regular transaction between the plaintiff and defendant
are that of a sellar and buyer. It may be noted that DW 1 has admitted that
an amount of Rs.60,000/ was paid as credit balance. DW 1 has also
admitted that amount of Rs.68,886/ has been paid against invoice no.304,
313. DW1 has further admitted that amount of Rs.24,375/ was against
invoice no.304. DW1 has further admitted that payment of Rs.60,000/ and
Rs.68,486/ was not against any specific invoice. DW1 has further admitted
that an amount of Rs.1 lac each was paid thrice and an amount of Rs.85,280/
has not been paid against any specific invoices. DW1 has tried to prove that
payment has been made on bill to bill basis but he tried to explain away that
the amount of Rs.3,85,280/ was in response to the aforesaid invoices no.483,
497, 498, 514, 505, 523, 533, 551, 615, 648, 673, 727 totaling to an amount of
Rs.4,11,176/ by putting forth the lame excuses that the goods were supplied
by the plaintiff were defective. DW1 has also admitted that defendant
released the payment on account basis. Therefore, testimony of DW1 also
lead to conclude that amount between the parties was open, current and
nonmutual.
19. It may be noted that the statement maintained between the
parties is maintained on open, current, running and mutual account. The
meaning of word 'on account' has been given in Black Dictionary of Law as "
in part payment; in partial satisfaction of an account". In Law Lexicon, the
word running account and current account is defined as follows :
Running Account. "An account with a bank for
money loaned, checks paid etc., which during the
time makes monthly statements, striking the
balance due each month, which is carried
forwarded and charged, constitutes a "running
11/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
account" and is in effect but one transaction"
Current Account. " An account between two
parties having a series of transactions not covered
by evidence of indebtedness (as notes or
certificates) and usually subject to settlement at
stated intervals (as monthly or quarterly)".
20. It is relevant to mention here that in the present case the plaintiff
has undertaken to make delivery of the goods and the defendant has agreed
to pay for such goods and defendant made part payment to the plaintiff. It is
admitted fact that payment has been made after goods have delivered and
such payments have been made towards the price due. Therefore, such
payments were made in discharge of the obligation occurred for the
defendant by the delivery made to it to pay the prices of the goods delivered.
The contention of the counsel for the defendant that the goods were supplied
on credit, therefore, limitation would run for each supply and that the
account between the parties was not a open, current and nonmutual account.
Therefore, the account is a running, current and nonmutual account
between the parties. The contention of the counsel for the defendant by
relying upon Ashok Pardhan (supra) that article 14 of the Schedule 1 will be
applicable to the facts of the present case appears to be attractive but the
same is fallacious in as much as the Division bench of Hon'ble Delhi high
Court in Bharath Skins (supra) in para 20, 23 and 24 has observed as under :
" 20. In case of running and nonmutual account
between the buyer and sellar, when goods are delivered
by the seller to the buyer, the value of the goods is
debited in the debit column and when amounts are paid
by the buyer to the seller, they are entered in the credit
column. The difference is continuously struck in the
column for balance. In such a case, when the buyer
defaults to make balance payment, the seller's action is
not for the price of goods sold and delivered but for the
balance due at the foot of an account. Thus, Article14
12/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
would have no application in suits of recovery of money
due on a running and a nonmutual current account
between the buyer and seller."
"23. The upshot of the above discussion is that
Article 14 of the Schedule to the Limitation Act, 1963
does not apply to suits for recovery of money due on a
running and current but a nonmutual account between
the buyer and seller i.e. an account of the kind with
which we are dealing."
"24. There being no Article in the Schedule to
the Limitation Act, 1963 dealing with suits for recovery
of money due on running and current but nonmutual
accounts, in such circumstances, the residual article
vis. Article 113 applies to such suits."
21. Therefore, in view of ratio of Bharath Skin (supra), Ashok Prasad
(supra) and Kal Cable (supra) pales into insignificance. So far as, Shiv Raj
Gupta is concerned, it was observed in that case, that cause of action accrued
to the appellant therein to seek for the declaratory relief as prayed for in that
suit when the first defendant therein propounded the will and sought to
assert his right under the will. Similarly in Shah Construction (supra), it was
observed that no period of limitation has been prescribed for moving an
application under section 20 of Arbitration Act 1940 and therefore, period of
limitation of 3 years under article 137 of the Limitation Act will apply and it
was further observed that the replication of the contractor denying claim of
the corporation was filed in suit on 12.02.1965 and the cause of action, would
arise on that date. In Lakshmi Chand Yadav (supra), it was observed that
once appellant therein admitted having an amount which is mutually open,
current, its character will not change till account is not settled which in that
case was not even alleged by the appellant therein. Therefore, it was held
that statement of account between the parties was running, open and non
mutual account. So far as, Gangawati Chemical limited (supra) is concerned,
the ratio of this judgment is that the plea of running account is to be taken
13/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
into plaint, which in the present case was not taken in the plaint that has
been taken in the replication and replication is a part of the pleading if the
same is taken on record with the permission of the court as per the ratio of
Ashok Pradhan (supra) wherein, it was observed that the replication is part
of the pleading if the same is taken on record with the permission of the court
in following three conditions:
(i) When required by law,
(ii) When a counter claim is raised or set off is pleaded by defendant,
(iii) When the court directs or permits a replication being filed.
22. It may be noted that the payments were made by the defendant
only on lump sum basis and not against specific invoices. The document Mark
A placed on record by the plaintiff, which can be used against the defendant,
also led to infer that the payment were made on lump sum basis and not
against any particular invoice. The defendant has also led no evidence that
invoice to invoice payment in respect of above said invoices have been made.
Even defendant has made payment in respect of invoice raised by the
plaintiff, despite the fact that the amount of Rs. 1,46,863/ is allegedly due to
the defendant payable by plaintiff. Had defendant was having any grouse
with respect to the quality of goods supplied by the plaintiff, defendant would
have raised debit note but no such debit note has been placed on record nor
any inward way bill have been placed on record that the goods have been
returned to the plaintiff and as per the admission of the defendant the goods
has been utilized by the defendant despite their inferior quality. So far as bill
no. 60010 for Rs. 35,874.90/ is concerned, no evidence has been led as to how
the rejected goods were returned to the plaintiff.
23. As far as, invoice no 277 is concerned a sum of Rs. 39,583.28/ as
amount of the said invoice has been detailed in the Ex.PW1/9 whereas
14/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
amount of the invoice is detailed as Rs. 52,792.65/ in the documents of
plaintiff. Plaintiff has never raised any dispute that the said invoice has not
been paid or that the amount in statement of account qua invoice no.277 in
the CForm is wrongly mentioned. The defendant has failed to prove that as
on 01.04.2007 an amount of Rs. 1,40,860.63/ was stood debited in the account
of the plaintiff as except exhibited document Mark A, no documentary
evidence has been led as to how this amount stood debited in the account of
the plaintiff. In the same manner, plaintiff has failed to prove on record that
amount of Rs.4,43,310.12 is debited in the account of defendant from the
account of plaintiff on 01.04.2007. There is no averment in the plaint that an
amount of Rs. 4,43,310.12/ is due and payable by the defendant and stood
debited in the account of defendant. The statement of account of plaintiff has
been proved and exhibited as PW1/7 but no certificate under section 65B
Indian Evidence Act has been placed on record to make such evidence
admissible in law. The entry dated 01.04.2007 has not been substantiated by
the mean of any document showing as to how and for what the amount of Rs.
4,43,310.12/ is due.
24. The entry in the statement of books are relevant under Section 34
of the Indian Evidence Act and those entry alone is not sufficient to charge a
person to a liability. The object is law of mean entry should not be sufficient
to fasten the monetary liability unless the document of transaction (which
would be invoices, challan and receipts supplied of goods as such) are filed
and exhibited in support of the entries made. So far as reliance placed on
Sudhir Engineering (supra) is concerned, it has been observed that
endorsement on exhibit not on the document does not per se prove the
document to enable to it to be admissible in evidence and mere admission of
document does not dispense with the necessity of formal prove of the same. In
"Smt. Daya Mathi Bai Vs. K.M. Shaffi" AIR 2004 SC 4082, it has been
15/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
observed in para 13 as under:
"13. We do not find merit in this civil appeal. In the present case the
objection was not that the certified copy of Ex.P1 is in itself
inadmissible but that the mode of proof was irregular and insufficient.
Objection as to the mode of proof falls within procedural law.
Therefore, such objections could be waived. They have to be taken
before the document is marked as an exhibit and admitted to the record.
This aspect has been brought out succinctly in the judgment of this
Court in R.V.E. Venkatachala Goundary vs. Arulmigu Viswesaraswami
& V. P. Temple & Anr. AIR2003SC4548 vide para 20 :
"20. The learned counsel for the defendantrespondent has
relied on Roman Catholic Mission vs. MANU/SC/0253/1966 State of Madras [1966] 3 SCR 283, in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes : (I) an objection that the document which is sought to be proved is itself inadmissible in evidence ; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", as objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter preposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering 16/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading he evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
25. In "Anwar P.V. Vs. P.K. Wasan" AIR 2015 SC 180, it has been observed in para 23 as under: "23. The Appellant admittedly has not produced any certificate in terms of Section 65 B in respect of the CDs, ExhibitsP4, P8, P9, P10, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground"
26. Therefore, it can be safely concluded that no certificate under section 65B of Indian Evidence Act has been placed on record to prove the statement of account Ex.PW1/7. Therefore, it cannot be taken into consideration. As such, this statement of accounts stands excluded from the evidence. But as per the pleadings, testimony of parties, it can be safely concluded that the statement of account between the parties is open, current 17/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
and nonmutual account.
27. It is relevant to mention here that the burden of proof that the amount involved in the present suit has not been paid by defendant is on the plaintiff. The plaintiff failed to prove statement of account as mentioned above. The testimony of DW1 is also of no avail as DW1 has not placed on record any authority of the defendant to depose for and on behalf of defendant company and reliance placed upon Sashiv Bharat (supra) is misplaced as in that judgment the witness was a partner whereas in the present case defendant is a company, therefore, authorisation through resolution of Board is mandatory. Therefore, it can be concluded that testimony of DW1 cannot be taken into consideration. In the same manner the contention regarding the admission by PW1 of statement of accounts of defendant Mark A by placing reliance in Suresh Chand (supra) is devoid of force in as much as in that judgment no suggestion was given to the proved documents whereas in present case no document has been placed by the defendant on record. Therefore, there is no evidence from the side of parties as to how much amount has been paid and how much is pending.
28. The CForm Ex. PW 1/9 is reflecting delivery of goods in respect of 27 invoices and present suit is filed for 19 invoices only. The plaintiff failed to prove as to how much amount plaintiff has returned and in respect of which invoice the same was returned and for which invoice the same is pending. The invoice no.628 is not detailed in Ex. PW 1/ 9, therefore, plaintiff failed to prove delivery of goods in respect of invoice no.628. The amount of invoice no.277 (not claimed in this suit) is detailed as 39,853.28 whereas in the statement of account (though not taken into consideration as stated above) this amount is shown as Rs.52,792.65. In the same manner the plaintiff has not placed on record the entire record of dealing between the 18/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.
parties and payment made by defendant including the debit entry in the account of defendant w.e.f. 01.04.2007. It can be safely concluded that plaintiff failed to prove that amount involved in the abovesaid invoices has not been paid by the defendant.
29. Now coming to the question of limitation. It is pleaded that suit is within limitation as CForm was issued on 15.06.2009 and thereafter cause of action accrued when notice dated 15.06.2009 was issued to the defendant. But this contention appears to be attractive but same is fallacious in as much as issuance of form is not going to start a fresh period of limitation in terms of the mandate of law laid down in Taipak Ltd. (supra). As far as issuance of notice dated 05.06.2012 is concerned, it is relevant to mention here that in Bharath Skin (supra) the period of limitation is calculated from the last payment made by the defendant (therein). In the present case, the last payment was made on 26.06.2008 as admitted by PW1 in his cross examination. In Godrej (supra) the limitation started fom the day when the supplies were made and were received by the appellant (therein). Therefore, the period of limitation is to be computed from 26.06.2008 therefore, period of limitation is to be computed from 26.06.2008 in terms of Article 113 of the Limitation Act, as such, suit is hopelessly barred by limitation. These issues are decided in favour of defendant and against the plaintiff. ISSUE NO.1
30. Onus to prove this issue is on the defendant. No evidence has been led by the defendant to prove that there is no cause of action otherwise, the plaintiff has pleaded that the goods are supplied to the defendant through invoices but defendant has failed to pay the price of goods involved in those invoices. Therefore, there is cause of action in favour of plaintiff. As such, this issue is decided in favour of plaintiff and against the defendant.
19/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd. ISSUE NO.2
31. Onus to prove this issue is on the defendant. No evidence has been led by the defendant to prove that the plaintiff has suppressed material facts. As such, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO.4
32. Onus to prove this issue is on the defendant. Plaintiff has proved that plaintiff is a partnership firm and came into existence through partnership deed Ex.. PW 1/ 2 and the said firm is duly registered with the Registrar of firm. Sh. Rohit Sharma has been authorised through PW 1/1 to institute the present suit and nothing to the contrary has been proved by the defendant that suit has not been filed by the duly authorised person. This issue is decided in favour of the plaintiff and against the defendant.
RELIEF From the above discussions and in view of the findings recorded on the issues no.3 and 4, I am of the opinion that plaintiff has failed to prove his case. As such, suit of the plaintiff deserves to be dismissed and is hereby dismissed. No order as to cost. Decree sheet be drawn accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, Today i.e. on 20th of July, 2016 (Dr. VIJAY KUMAR DAHIYA) ADJ(Central07)/DELHI 20.07.2016 20/20 M/s. Vin Industries Vs. Anand Nishikawa Co. Ltd.