Delhi District Court
M/S Ava Enterprises vs . Vinay Mehrotra on 10 April, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE/
GUARDIAN JUDGE / JUDGE SMALL CAUSE COURT:
NORTH-EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
Presided by: Sh. Sujit Saurabh
CIVIL SUIT NO. 137/21
M/s AVA ENTERPRISES Vs. VINAY MEHROTRA
M/s AVA Enterprises
Through Authorized Representative Sh. Vaibhav Jain
Office at: T-59, Main Road, Ground Floor,
Gautampuri, North-East,
Delhi-110053. ........ Plaintiff
Versus
Mr. Vinay Mehrotra
Proprietor M/s M.S Enterprises,
Office at: 13, Shyam Market,
Farash Khana, Delhi-110006.
Also, at:
1. C-8, Shop No.4,
Ground Floor, Dilshad Colony,
Delhi-110095.
2. B-30, Ramprastha,
Ghaziabad, UP-201011. ........ Defendant
Date of Institution of the Suit : 06.03.2021
Date of Decision : 10.04.2023
Decision : Suit Dismissed
SUIT FOR RECOVERY OF RS.120,987.94/- (ONE LAKH
TWENTY THOUSAND NINE HUNDRED AND EIGHTY-SEVEN
RUPEES AND NINETY-FOUR PAISA) WITH PENDENTE LITE
AND FUTURE INTEREST
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 1
JUDGMENT
1. Brief facts as set out in the plaint are as follows:
The plaintiff is a proprietorship firm which is engaged in trading of office files/stationary items. The defendant is proprietor of a proprietorship firm namely, M/s Enterprises, having registered office at: 13, Shyam Market, Farash Khana, Delhi-110053. The suit has been filed through Authorized Representative (in short, 'AR') Sh. Vaibhav Jain. The plaintiff and the defendant are stated to have old relationship. It is stated that in 2017, the defendant approached the plaintiff with request to supply of office files/stationary items on credit basis. The plaintiff is stated to have supplied goods on credit basis to the defendant as per his demand and requirements. In financial year 2017-18, the plaintiff supplied goods of Rs. 2,50,364 to the defendant. The defendant paid only 41,430/- with outstanding 2,08,934/-. In financial year 2018-19, the plaintiff supplied goods worth Rs.4,26,479.80/- to the defendant. The defendant paid only Rs.321,213.68/-. The outstanding in financial year 2018-19 remained Rs.1,05,266.12/-. On 08.07.2019, the defendant paid Rs.10,000/-, reducing the claim of the plaintiff to Rs.95,266.12/- (Ninety-five thousand two hundred and sixty-six rupees and twelve paisa only). The plaintiff demanded the outstanding amount from the defendant but same was not paid by the defendant. On 09.02.2021, the plaintiff issued legal notice to the defendant seeking clearance of outstanding amount of Rs.1,20,987.94/- (One lakh twenty thousand nine hundred and eighty-seven rupees and ninety-four paisa only) along with interest @ 18% per annum. However, the plaintiff did not receive the legal notice. On these averments, the plaintiff has prayed as follows:
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 2 "1. Pass the decree for a sum of Rs. 95266.12/- (Ninety-five thousand two hundred and sixty-six rupees and twelve paisa only) in favour of the plaintiff and against the defendants.
2. Pass a pendent and future interest @ 18% per annum on the said legally due and outstanding amount 25,721.82- (Twenty-
five thousand seven hundred and twenty-one rupees and eighty- two paisa only) interest for 18 months years (sic) from the date of first payment. /suit (sic) till realization.
3. Award cost of the suit in favour of the plaintiff and against the defendant. And
4. Pass such other relief and further order(s) as may be deemed fit and proper on the facts and circumstances of this case."
2. Vide order dated 07.10.2021, the defendant was summoned. The summon was served. Despite service of summon, the defendant neither filed written statement nor entered appearance. Vide order dated 04.01.2022, the defendant was proceeded Ex-parte and the matter was listed for Ex-parte PE. Thereafter, the defendant along with his counsel appeared before the court and sought time to file appropriate application for setting aside order dated 04.01.2022. Accordingly, the matter was adjourned. However, no such application was filed on behalf of the defendant. In fact, neither the defendant nor his Counsel appeared before the court after putting appearance on 15.03.2022.
3. Sole witness examined on behalf of the plaintiff is its AR, Sh. Vaibhav Jain. He entered in the witness box as PW1 and tendered his affidavit in evidence Ex. PW1/A and relied upon following documents:
1. Computer generated copy of Invoice No. 97 Ex.PW1/1, Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 3
2. Computer generated copy of Invoice No.70 Ex.PW1/2,
3. Computer generated copy of Invoice No.44 Ex.PW1/3,
4. Computer generated copy of Invoice No.43 Ex.PW1/4,
5. Computer generated copy of Invoice No.39 Ex.PW1/5,
6. Computer generated copy of Invoice No.69 Ex.PW1/6,
7. Computer generated copy of Invoice No.39 dated 05.05.2018 Ex.PW1/7,
8. Computer generated copy of Invoice No.34 Ex.PW1/8,
9. Computer generated copy of Invoice No.10 Ex.PW1/9,
10. Computer generated copy of Invoice No.51 Ex.PW1/10,
11. Computer generated copy of Invoice No.18 Ex.PW1/11,
12. Computer generated copy of Invoice No.48 Ex.PW1/12,
13. Computer generated copy of Invoice No.31 Ex.PW1/13,
14. Computer generated copy of Invoice No.27 Ex.PW1/14,
15. Computer generated copy of Invoice No.50 Ex.PW1/15,
16. Computer generated copy of Invoice No.55 dated 22.02.2018 Ex.PW1/16,
17. Computer generated copy of Invoice No.55 dated 21.05.2018 Ex.PW1/17,
18. Computer generated copy of Invoice No.56 Ex.PW1/18,
19. Computer generated copy of Invoice No.82 Ex.PW1/19,
20. Computer generated copy of Invoice No.35 Ex.PW1/20,
21. Computer generated copy of Invoice No.88 Ex.PW1/21,
22. Computer generated copy of Invoice No.89 Ex.PW1/22,
23. Computer generated copy of Invoice No.64 Ex.PW1/23,
24. Computer generated copy of Invoice No.90 Ex.PW1/24,
25. Ledger Account from 2017 to 2021 Ex.PW1/25,
26. Speed post return Envelop Ex.PW1/26,
27. Consignment tracking report and original receipt Ex.PW1/27.
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 4 Vide order dated 05.12.2022, the PE was closed as per statement of the AR of the plaintiff and the matter was listed for final arguments.
4. After listing the matter for final arguments, certificate under section 65-B of The Indian Evidence Act, 1872 was filed on behalf of the plaintiff.
5. Final arguments were advanced on behalf of the plaintiff only as defendant did not join proceeding.
6. DECISION AND REASONS THEREFOR 6.1 PLAINT NOT DULY VERIFIED As per Order VI Rule 15 of The Civil Procedure Code, 1908 (in short, 'CPC') every pleading is required to be verified in the manner provided therein. It reads as follows:
15. Verification of pleadings. - (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 5 (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
6.1(I) The plaint is not duly verified in the instant case. The date and year of verification is missing in the verification clause. The paragraph numbers which are verified on personal knowledge and the one which are verified on the basis of information received are also missing in the verification clause. The verification clause at the foot of the plaint reads as under:
"VERIFICATION: -
th Verified at Delhi on this day of that the contents of the para no. of the plaint are true and correct to best of my knowledge and those of paras No. of the plaint are correct on information received and believed to be correct.
Last para is the prayer clause to this Hon'ble Court."
6.1(II) Though the defect in verification clause is curable, the plaintiff did not take any step to cure the defect.
In Regu Mahesh @ Regu Maheswar Rao vs Rajendra Pratap Bhanj Dev And Anr Appeal (civil) 1833-1834 of 2003 (Judgment dated 30.10.2003), Hon'ble Supreme Court has held as follows:
"..... It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect."
In State of Bombay v. Purushotham (AIR 1952 SC 317), Hon'ble Supreme Court has noted as follows:
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 6 "The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modeled on the lines of Order 19, Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the source of information should be clearly disclosed. We draw attention to the remarks of Jenkins C.J. and Woodroffe, J, in Padmabati Dasi v. Rasik Lal Dhar (37 Cal. 259) and endorse the learned Judges' observations".
In Regu Mahesh (supra), Hon'ble Supreme Court has quoted with approval the above referred observation in Purushotham (supra).
6.2. AUTHORIZATION LETTER NOT PROVED Authorization letter reads as follows:
"M/S AVA ENTERPRISES Office at: T-59, Main Road, Ground Floor, Gautampuri, North- East, Delhi-110053.
GSTIN: - 07BGHPJ6116N1Z4 Authorization Letter I hereby represent, M/s AVA ENTERPRISES Office at: T-59, MAIN ROAD, GROUND FLOOR, GAUTAMPURI, NORTH- EAST, DELHI-110053 appoint Mr. Vaibhav Jain as a authorized representative of M/s AVA ENTERPRISES At the same time, the said representative is hereby authorized to be responsible for all the activities, decisions, signature etc. of the suit title as M/s AVA ENTERPRISES VS VINAY MEHROTRA on behalf of the M/s AVA ENTERPRISES.
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 7 The letter of authorization shall remain valid until the company removes or replaces its designated representative upon written notice I the same form as this letter of authorization.
For and on behalf of (M/s AVA ENTERPRISES) Ankitjain (signature) Proprietor"
Though authorization letter in favour of the AR was filed with the suit, same was not proved. While tendering his affidavit in evidence, PW1 did not rely upon the authorization letter for reasons best known to him. Moreover, proprietor of the plaintiff firm also did not enter in the witness box to prove the authorization letter in favour of the AR.
6.3 Competence of the AR of the plaintiff to verify the plaint remains to be proved. The plaint as well as affidavit Ex. PW1/A are conspicuously silent about the name of the proprietor of the plaintiff firm. However, it is admitted fact that the plaintiff is a proprietorship firm. It has not been categorically stated whether the plaintiff is a registered or unregistered firm. In case of an unregistered firm, the plaint is required to be verified by the proprietor of the firm.
In Miraj Marketing Corporation vs Vishaka Engineering And Anr. (Judgment dated 23.11.2004), Hon'ble High Court of Delhi has noted as follows:
".....A proprietorship firm has no legal entity like a registered firm. A suit cannot be instituted in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of the proprietor. It is an admitted position in the plaint that Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 8 the plaintiff is a proprietorship firm. There is, however, no statement made in the plaint by the plaintiff as to who is the proprietor of the firm. Shri Amitabh Sharma is described in the cause title of the plaint only as an authorised representative. The name of the proprietor of the said proprietorship firm is not given in the plaint.......
A sole proprietorship firm is not a legal entity which can sue or be sued in its own name. Such suit relating to or against the affairs or claims of a proprietorship concern has to be brought or made against the person who is the sole proprietor of the firm....."
6.4 CERTIFICATE UNDER SECTION 65 B OF EVIDENCE ACT OF THE AR NOT ADMISSIBLE IN EVIDENCE The certificate reads as under:
"CERTIFICATE UNDER SECTION 65 B INDIAN
EVIDENCE ACT, 1872
I Vaibhav Jain, Authorized representative M/s AVA
ENTERPRISES age about 28 years, Office at: T-59, Main
Road, Ground Floor, Gautampuri, North-East, Delhi-110053 do hereby certify that: -
Hereby produced annexed Document i.e. invoices and ledgers are printouts taken by me from the laptop using a standard laser printer in its normal course sans without (sic) any sort of distortion or without any tampering whatsoever, in its accuracy of contents as retained in its original form.
2. That the above said statement of the deponent is true and correct.
DEPONENT Verified at Delhi on this 11 day of Jan 2023 that the contents of the above affidavit are true and correct to best of my knowledge and nothing material has been concealed therefrom. Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 9 DEPONENT"
It is apparent from the text of the certificate that the certificate is not in conformity with the requirements of section 65 B of Evidence Act. The certificate is silent about name of the person who had lawful control over the use of the computer from which the computer output was produced. Hence, the certificate is not admissible in evidence and can not be relied upon.
6.5 Every judgment passed by a court has to be on merits, irrespective of the fact that the defendant appears before the court and defends himself or not. The Court is not bound to grant a decree in case the defendant is absent. Even for an ex-parte judgment and the decree, the basic ingredients of judgment must be available.
In the matter of Ramesh Chand Ardawatiya V/s Anil Pajwani, AIR 2003 SC 2508, it was observed that even if the suit proceeds ex- parte, the necessity of proof by the plaintiff of its case cannot be dispensed with. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.
In the matter of Meenakshisundaram Textiles V/s Valliammal Textiles C.M.A.No.3700 of 2010 (judgment dated 07.03.2011) Hon'ble Madras High Court has observed:
"16. Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex parte judgment and the Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 10 decree drawn on the basis of that judgment is known as an ex parte decree. Hence, even for an ex parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief claimed thereunder, the evidence and the conclusion arrived at by the Court on the above."
7. In the light of above discussed facts and expositions of law, the suit of the plaintiff is dismissed. No relief is made out in favour of the plaintiff.
8. Pending application(s), if any stand(s) disposed of. Decree sheet be drawn. Digitally signed by SUJIT No order as to cost. SUJIT SAURABH Date:
SAURABH 2023.04.10
16:55:30
Pronounced in the open court +0530
today i.e. 10.04.2023
(SUJIT SAURABH)
ASCJ/GJ/JSCC North-East,
Karkardooma Courts, Delhi
10.04.2023
Civil Suit No. 137/21 M/S Ava Enterprises Vs. Vinay Mehrotra 11