Delhi District Court
Shivani Sharma vs M/S. Hem Stitch India on 9 May, 2017
IN THE COURT OF SH. DILBAG SINGH PUNIA
DISTRICT & SESSIONS JUDGE, NORTH DISTRICT, ROHINI, DELHI
CS No. 59917/16/12
Shivani Sharma
W/o. Sh. Gaurav Sharma
Proprietor of
M/s. Shivani Enterprises,
R/o. C34, Prashant Vihar,
Delhi110085. .....Plaintiff
Versus
1. M/s. Hem Stitch India
C56/2, Okhla Industrial Area,
PhaseII, Delhi
through its partners
2. Joginder Pal Sood
3. Archit Sood
4. Rajat Sood
All resident of
D8, Saket, New Delhi. .....Defendants
Date of Institution of case : 06.02.2012
Date of final arguments : 26.04.2017
Date of judgment : 09.05.2017
JUDGMENT
1. By this judgment, I shall dispose of a civil suit wherein the plaintiff has requested for a decree of Rs.7,33,806/ alongwith pendente lite & future interest @ 24% p.a. w.e.f. 08.05.2009 till realization and costs.
Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 1 of 27 CS No. 59917
2. Brief facts as disclosed from the plaint are that plaintiff Ms. Shivani Sharma is engaged in the business of supply of fabrics under the name and style of M/s. Shivani Enterprises. In the month of June, 2004, on demand of defendant she supplied fabrics as per the terms and conditions mentioned in the bills and delivery was duly acknowledged from time to time. Fabrics of value of Rs.43,06,222.06 were supplied. Defendants have paid a sum of Rs.34,91,245/ and issued debit note for a sum of Rs.81,175.75 towards return of goods. As per statement of account a sum of Rs.7,33,806/ is due and last payment of Rs.1,00,000/ was made on 08.05.09 through cheque bearing no. 233453 drawn on United Bank of India. Further, a legal notice was sent to the defendants at C 56/2, Okhla Industrial Area, Phase2, Delhi which was returned with the remarks that defendants have left the address which shows the malafide conduct of the defendants of avoiding of payment.
3. In the written statement, defendant no. 2 and defendant no. 3 have taken preliminary objections visavis suit being false; Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 2 of 27 CS No. 59917 nothing being due; suit having been filed with ulterior motive to extort money; principal amount having not been specified; suit being time barred; documents being fabricated and not bearing signatures and seal of the company. It is averred that documents are pertaining to 200405, 200506 and 200607 and single suit for all the transactions is not maintainable as each purchase order constitutes a separate cause of action.
4. It is claimed that all the payments have been made and amount of debit notes has not been adjusted. Rajat Sood has filed a case titled as Anila Sood vs. J.P. Sood & Others through her mother for partition of assets and properties of the partnership firm in which an injunction concerning all the properties of the company has been passed.
5. That suit frame is not appropriate; no document with respect to the partnership firm has been filed; there is no cause of action; suit is time barred; is not properly valued and plaintiff has failed to show cause of action.
Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 3 of 27 CS No. 59917
6. In parawise reply on merits, preliminary objections have been reiterated. It is claimed that it was the plaintiff who had approached the defendants; terms and conditions are mentioned in the work orders; bills have never been acknowledged as put forth and alleged bills and invoices are forged and fabricated.
7. Sending of legal notice and its receipt is denied. Address of the defendant no. 1 being as C56/2, Okhla Industrial Area, PhaseII has been admitted. It is stated that firm has been closed since 2009.
8. In the replication, plaintiff has controverted the assertions of the defendant and reiterated her submissions of the plaint. It is claimed that business transactions regarding supply of material started in June, 2004 and ended in June, 2007 and the same were continuing and last payment has been made on 08.05.09 whereas the suit has been filed on 04.02.2012. It is stated that limitation has to be counted from 08.05.09 and suit having been filed on 04.02.12 is within time. It is denied Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 4 of 27 CS No. 59917 that each and every purchase order will amount to creation of separate contract. That all the invoices have been signed and accepted by the defendants on behalf of the firm and therefore, objections regarding documents being forged and fabricated, are not tenable; Assertion about sending of debit notes has been controverted and claimed that same have been fabricated to create false evidence. That debit note dated 27.12.05 for a sum of Rs.1,68,488.70 and debit note dated 08.12.06 for Rs.225/ are not related to the plaintiff; debit notes cannot be considered in the absence of documents; and Shivani Sharma, being the proprietor M/s Shivani Enterprises, no documents are required to be filed by her.
9. From the pleadings of the parties, my ld. Predecessor framed the following issues:
1. Whether the plaintiff is entitled to recovery of amount as claimed, if yes, at what rate of interest?OPP
2. Whether the defendant is entitled to deduction of the debit notes as claimed by him? OPD
3. If yes to Issue No. 2, at what rate of interest? OPD
4. Whether the claim of the plaintiff is time barred?OPD
5. Relief?
Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 5 of 27 CS No. 59917
10. The Plaintiff, in support of her case, has examined herself only as PW1. She has deposed on the lines of plaint through her affidavit Ex.PW1/A. She has relied upon the documents (i.e. bills issued by the plaintiff to the defendant company) Ex.PW1/1 to Ex.PW1/69. She has also admitted the Debit notes dated 12.06.07, 15.06.07 and 08.12.07. The same have been exhibited as Ex.PW1/71 and other four debit notes dated 12.06.07 were exhibited as Ex.PW1/72 to Ex.PW1/75. Statement of account has been exhibited as Ex.PW1/77. Legal notice has been exhibited as Ex.PW1/78; postal receipts as Ex.PW1/79, registered covers qua defendant no. 2 as Ex.PW1/80, registered cover qua defendant no. 3 and registered cover qua defendant no. 4 have been exhibited as Ex.PW1/81 and Ex.PW1/82.
11. When crossexamined by Sh. Narender Verma, ld. Counsel for defendant no. 2 and 3, this witness Ms. Shivani Sharma has testified that she is running her firm since 2002 and was not running any other firm prior thereto. She testified that she Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 6 of 27 CS No. 59917 has dealt with defendant from June, 2004 to June, 2007; She admitted that sometimes the work orders were placed with specifications of fabrics, colour, length, width and quality in writing and sometimes specifications were given orally. She could not tell as to the number of work orders received in writing from the defendants. She denied that all work orders were given to her in writing by defendants. She admitted that every order was composite and independent. She denied that payment was against the work order received. She volunteered that she has made payment to the running account. She admitted that Ex.PW1/1 to Ex.PW1/6 do not bear her signatures and that of the defendant. She volunteered that these bills bear the signature of her employee. She has admitted having received the payment of Ex.PW1/1. She denied the suggestion that Ex.PW1/7, Ex.PW1/24, Ex.PW1/25, Ex.PW1/26, Ex.PW1/27, Ex.PW1/31, Ex.PW1/32 and Ex.PW1/36 do not bear the signatures of defendants or their employees. She denied that same were forged and fabricated. She denied that Ex.PW1/8 and Ex.PW1/25 do not bear signature or seal of defendants or Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 7 of 27 CS No. 59917 that the same were never received by defendant or their employees.
12. PW1 admitted that Ex.PW1/37 and PW1/38 were computer generated bills and she has not filed any certificate of their authenticity. She stated that she does not know as to who had signed at point 'A' on Ex.PW1/39. She volunteered that it was received in the office of defendant firm. She denied that Ex.PW1/40 and Ex.PW1/41 do not bear the seal and signatures of the defendant or that seal affixed on the said bills are forged and fabricated. She admitted that Ex.PW1/42 to Ex.PW1/69 are computer generated bills and she has not filed certificate of authenticity of the same. She denied that she has filed false suit against the defendant or that defendants are not liable for any payment. She stated that she cannot tell about any particular bill and period when the payments were not received by the plaintiff firm. She volunteered that statement of account has already been filed showing the outstanding payments against the defendant firm.
Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 8 of 27 CS No. 59917
13. PW1 admitted in her further crossexamination that statement of account Ex.PW1/77 is computer generated copy and she has not filed any certificate of its authenticity under the Evidence Act. She testified that she has seen debit note Ex.PW1/D1 to Ex.PW1/D3 and stated that the same were never received by her or in her office. She has stated that she does not recognize the signatures at encircled portion (point A) on all these three debit notes. She denied that she has not deducted the amount of said debit notes in her claim amount.
14. Defendant no. 2 and 3 have examined DW1 Sh. P.A. Nair, Manager, Hemstitch India. He has proved his affidavit in evidence as Ex.DW1/A. He has also placed his reliance on Ex.PW1/D1 to Ex.PW1/D3 (already exhibited in the cross examination of of the plaintiff). Contents of affidavit of Sh. P.A. Nair are in consonance with written statement of defendant no. 2 and defendant no. 3.
15. In crossexamination, DW1 has deposed that he does not remember the exact period concerning transactions between the plaintiff and defendant; and does not recollect as to Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 9 of 27 CS No. 59917 whether the transaction period was between April, 2004 to June, 2007. He deposed that material supplied by the plaintiff was received by Store Keeper of defendant firm; goods were supplied through bill and he does not know as to whether the business of the plaintiff with the defendant was a running account business. He admitted that sometimes payment was made against particular bill and sometimes on account. He stated that he cannot tell as to who had received the Bill Ex.PW1/1 and claimed that the same can be confirmed by Store Keeper. He deposed that he cannot say anything about the bills filed on record.
16. DW1 has further deposed that he does not know as to whether the plaintiff has deducted the debit note issued by the defendant for Rs.81,175/. He has deposed that debit note is issued by his account department and store department and he came to know about the same as departments were having a copy of the same. He admitted that he has filed three debit notes Ex.PW1/D1 to Ex.PW1/D3. He deposed that he does not know as to whether these debit notes bear Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 10 of 27 CS No. 59917 signatures of plaintiff. He denied that that Ex.PW1/D1 does not pertain to plaintiff firm. He volunteered that name of Shivani is also mentioned on the document. He denied that that the documents have been tampered by the Defendants.
17. He has deposed that defendant is an association of persons/firm and it is not a partnership firm; was running upto 2009; before closing, no notice was given to plaintiff and he cannot say as to whether defendant had accepted the terms and conditions as mentioned in Ex.PW1/1.
18. DW2 Sh. Vijay Kumar (exaccountant) has proved his affidavit in evidence as Ex.DW2/A. He has also relied upon documents already exhibited as Ex.DW1/D1 to Ex.DW1/D3.
19. During crossexamination, DW2 deposed that he does not know, if any document was filed on record evidencing that the payment with regard to the invoices has been made to the plaintiff and plaintiff has running account business with the defendant firm. He volunteered that sometimes payments have been made bill wise and sometimes on account. He Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 11 of 27 CS No. 59917 deposed that separate/independent purchase orders have been placed by defendant on the plaintiff firm. He denied that no separate orders were placed by the defendant and it is a running account business with the defendant firm. He deposed that bills sent by the plaintiff to the defendant firm used to be received by the guard at the gate. He deposed that he does not know as to whether any statement of account has been filed by the defendant firm and cannot tell without checking the record as to when last payment was made by the defendant. He deposed that he does not know as to whether the last payment was made on 08.05.09 by the defendant firm; debit note was issued by store keeper and debit note dated 27.12.15 issued by the plaintiff firm is in the name of Bhagwati Fabric/Shivani Enterprizes. He denied that Debit Note has been tampered with and manipulated by mentioning name of Shivani Enterprises. He deposed that terms and conditions of payment have been mentioned in the bills; admitted that defendant firm was closed in 2009 and does not know as to whether defendant firm had sent any notice to plaintiff firm. He admitted that there is a dispute between the Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 12 of 27 CS No. 59917 partners of firm which is pending in High Court. He deposed that he does not know as to whether any document has been filed concerning legal dispute. He denied that defendant firm has not filed any document intentionally and deliberately.
20. I have heard the ld. Counsel for the parties at bar and have carefully gone through the entire material, including the written submissions of the parties, on record.
21. My findings on the issues are are under: Issue No.1 Whether the plaintiff is entitled to recovery of amount as claimed, if yes, at what rate of interest? OPP Issue no.2 Whether the defendant is entitled to deduction of the debit notes as claimed by him? OPD Issue No.3 If yes, to issue no.2, at what rate of interest? OPD Issue No.4 Whether the claim of the plaintiff is time barred? OPD
22. I propose to decide the issues simultaneously as issue no. 1, 2 and 3 are interrelated and issue no. 4, being on the point of limitation will have to be decided alongwith these issues. Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 13 of 27 CS No. 59917
23. The onus was on the plaintiff to prove that she is entitled to the suit amount and that the amount of debit notes issued by the defendant have been adjusted against the claimed amount. The plaintiff has deposed that in the month of June 2004, the defendant approached her for supply of fabrics and she agreed to supply the fabrics after discussions and negotiations, on the terms and conditions mentioned on the invoice / bills. The plaintiff supplied the fabrics which was duly acknowledged / received by the defendant from time to time. She proved on record the original invoices/bills as Ex.PW1/1 to Ex.PW1/17. She further deposed that as per the said invoices/bills, she supplied fabrics worth Rs. 43,06,222.06 and the defendant paid a sum of Rs. 34,91,245/ and issued debit notes for a sum of Rs. 81,175.75 (approximately) towards the return of goods. She deposed that plaintiff is entitled to recover the balance amount of Rs. 7,33,306/ from the defendant. She further deposed that she received six debit notes (Ex.PW1/71 to Ex.PW1/76) issued by the defendant in respect of the returned goods. She, further, deposed that the debit note dated 03.09.2007 for Rs. Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 14 of 27 CS No. 59917 2,56,323/, debit note no. 15454 dated 04.09.2007 for Rs. 13250/ and the debit note dated 27.12.2005 for Rs. 168488.70 issued by the defendant were not received and that the same are not related to the plaintiff firm. She further deposed that the business transactions started and continued from 24.06.2004 till 25.06.2007 and the defendant made last payment on 08.05.2009 of Rs. 1 lac through cheque.
24. When crossexamined by the ld. Counsel for the defendant, the bill/invoice Ex.PW1/70 was not found on record and was deexhibited. She admitted the debit notes Ex.PW1/71 to Ex.PW1/76. She further testified that the statement of account (Ex.PW1/77) for the period 01.04.2004 to 31.03.2010 was maintained in due course of business. She admitted that no transaction had taken place with the defendant after June 2007. She also admitted that sometimes work orders were placed with specifications of fabric including colour, length, width and quality in writing but sometime specifications were given orally. She did not recollect as to how many times the work orders have been placed in writing. She denied the Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 15 of 27 CS No. 59917 suggestion that payment was made against the work order received by plaintiff and volunteered that payment was made into the running account. In her further crossexamination, she admitted that bills/invoices Ex.PW1/1 to Ex.PW1/6 did not bear her signatures or/and signatures of the defendant. She denied the suggestion that bills/invoices Ex.PW1/7, Ex.PW1/24 to Ex.PW1/27, Ex.PW1/31, Ex.PW1/32, Ex.PW1/36 do not bear the signatures of the defendant. She admitted that bills/invoices Ex.PW1/37 and Ex.PW1/38 are computer generated bills and that she has not filed certificate of the authenticity of the same. She could not testify as to the signatures on Ex.PW1/39.
25. PW1 admitted in her further crossexamination that bills/invoices Ex.PW1/42 to Ex.PW1/69 are computer generated bills and she has not filed certificate of authenticity of the same under the Evidence Act. She further testified that she can not tell about the particular bill and its period on which the payments were received by the plaintiff firm. She Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 16 of 27 CS No. 59917 admitted in her further crossexamination that statement of account Ex.PW1/77 is a computer generated copy and she has not filed any certificate of its authenticity under the Indian Evidence Act. She denied the debit notes Ex.PW1/D1 to Ex.PW1/D3. She, also, denied the suggestion that running account was not maintained. She admitted that no work order has been placed on judicial file qua the bills placed on record.
26. From the testimony of PW1 Smt Shivani Sharma, proprietor of plaintiff firm, it has clearly emerged over the record that the Defendant did place work orders / purchase orders for supply of fabrics. Some invoices placed over the record do refer to the purchase orders. Further, it has also emerged over the record from the statement of account Ex.PW1/77 that the defendant has made payment against specific bills/invoices. The plaintiff has also admitted that the statement of account Ex.PW1/77 as well as computer generated bills/invoices have not been accompanied with any certificate u/s 65B of the Indian Evidence Act. The statement of account Ex.PW1/77 contains entries which are disputed by the defendant. Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 17 of 27 CS No. 59917
27. Section 34 of the Indian Evidence Act provides as under: "Entries in books of account including those maintained in an electronic form when relevant.-- [Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability".
28. It is evident from the bare reading of Section 34 of the Indian Evidence Act, 1872 that a mere entry in the statement of account is not sufficient to fasten any liability and the entries in the statement of account have to be proved by means of documents/vouchers of the transaction. Admittedly, a large number of entries in Ex.PW1/77 have not been substantiated by the plaintiff by means of any document showing as to how such amount is due.
29. Hon'ble the Supreme Court of India in (1998) 3 SCC 410 -
Central Bureau of Investigation vs V.C. Shukla and others has observed as under: "Section 34 of the Indian Evidence Act, 1872 is in two parts. The first part speaks of relevancy of the entries in evidence. One the books of accounts are shown to be Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 18 of 27 CS No. 59917 regularly kept in the course of business and the second aspect is that even if it is proved that the statement of account are regularly kept in course of business, while the statement of account/entry alone is not sufficient evidence to charge a person with liability. The object of law is that mere entries should not be sufficient to fasten the monetary liability unless documents of transaction (which would be invoices, challans and receipts of supply of goods etc.) are filed and exhibited in support of entries made".
30. In the instant matter, the invoices/bills/receipts for supply of goods etc. relied upon by the plaintiff are not admitted (as per Ex.PW1/77) by the defendant. The computerised copies of invoices/bills relied upon by the plaintiff admittedly are not supported by certificate u/s 65B of the Indian Evidence Act. The Plaintiff has failed to lead any primary evidence regarding raising of bills/invoices, delivery of goods and receipt of the same by the defendant and the secondary evidence is inadmissible in view of the provisions of Section 65B of the Evidence Act.
31. In (2014)) 10 SCC 473 - Anwar P.V. Vs P.K. Basheer and ors, a full bench of the Apex Court has held as under: "Electronic record produced for the inspection of the court is documentary evidence under Section 3 of Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 19 of 27 CS No. 59917 the Evidence Act, 1872 (the Evidence Act). Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B of the Evidence Act. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer. The very admissibility of electronic record which is called as "computer output", depends on the satisfaction of the four conditions under Section 65B(2).
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
The person concerned occupying the responsible official position concerned need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., which contains the statement which is sought to be given in evidence, when the same is produced in evidence. All these Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 20 of 27 CS No. 59917 safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice".
32. Anwar P.V. Vs P.K. Basheer and ors (supra) has been followed in Harpal Singh alias Chhotu vs State of Punjab - (2017) 1 SCC 734. Para 56 & 57 are reproduced hereinbelow: "56. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to corelate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 21 of 27 CS No. 59917 inadmissible in evidence.
57. This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above".
33. The invoices/bills Ex.PW1/7, Ex.PW1/24 to Ex.PW1/27, Ex.PW1/31, Ex.PW1/32, Ex.PW1/36, Ex.PW1/37, Ex.PW1/38, Ex.PW1/39, Ex.PW1/42 to Ex.PW1/69 and Ex.PW1/77 are computer generated and are not accompanied by the certificate u/s 65B of the Evidence Act. The said bills as well as statement of account are, therefore, not admissible in evidence. The plaintiff has, thus, failed to discharge his onus to prove the suit amount in accordance with law.
34. The contention of ld. Counsel for the plaintiff that a running account was maintained has no merits whatsoever in view of the settled position of law. It is settled law that such an account should be capable of giving rise to shifting balance. Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 22 of 27 CS No. 59917 The account may be current and equally it may be open, but unless it is mutual, it ceases to be a mutual and current. Unless, it is established that during the dealings one party has become a creditor to the other and at another time the other party who was a creditor has become a debtor to the other which brings out the essence of mutuality in the accounts, it ceases to be a mutual open and current account. (Reliance placed on "Raju and others vs L. Kumaramuthu" AIR 1975 Madas 1). In "M/s Roshan Lal Kuthila and another vs Raja Rana, Yogender, Chandra and others" AIR 1996 Himachal Pradesh 14 and in OMP No. 130/2014 - M/s Era Construction (India) Limited vs Mr. D.K. Sharma, Prop. Keshav Security Services (Regd), decided on 25.09.2007 by our own High Court, it was held that : "for a mutual, open and current account, there has to be transactions on each side, creating independent obligations on the other and not merely transactions which create obligation on the one side, those on the other being merely complete or partial discharges of obligations of other side account is not mutual open and current".
35. The defendant has submitted that the plaintiff has maintained a simple account and not an open mutual Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 23 of 27 CS No. 59917 running account and that the statement of account is full of false and fictitious entries. The defendant has claimed that there is no outstanding amount payable as they had made payment of all the bills and invoices for which the material was received by them and for the defective material which was returned, debit notes were issued. The plaintiff, in fact, has admitted some of the debit notes, but has denied the others for no valid reason. The alleged statement of account Ex.PW1/77 relied upon by the plaintiff itself shows that there were no mutual transactions between the parties. The plaintiff supplied the material and debited the account of defendant and when the defendant made payment, the plaintiff credited the account. It is, thus, clear that it was a simple current account only and even this account has not been proved in accordance with the provisions of law.
36. The result of the discussion hereinabove comes that the plaintiff has failed miserably to prove its case and failed to show any amount which is allegedly due from the Defendant. Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 24 of 27 CS No. 59917
37. In civil matters, it is a wellsettled principle of law that the case has to be decided on the preponderance of probabilities unlike criminal cases which are to be decided on the doctrine of proof beyond reasonable doubt. This doctrine of preponderance of probabilities applies more in determining truthfulness of witnesses where corroboration is not easily available. Presumptions as contemplated under Section 114 and Section 80 of the Indian evidence Act have also to be taken aid of. Reliance is placed on Vishnu Dutt Sharma vs. Daya Sapra - 2009 (3) RCR (Civil) 483 and Municipal Corporation Hyderabad vs Sunder Singh - AIR 2008 SC 2579.
38. It is the admitted case of the plaintiff that in the event of rejection of any material supplied to the defendant, such material was returned and debit note(s) were issued. The plaintiff has admitted three debit notes but denied others. The plaintiff has failed to prove all the bills/invoices so raised and that the material was infact supplied to the defendant. The transactions between the parties admittedly continued till Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 25 of 27 CS No. 59917 2007 only. The defendant, however, made "on account payment" also. The defendant would have made "on account payments" only because there would have been some differences/disputes regarding the material rejected/returned and the debit notes. Further, the defendant made payment of Rs. 1 lac on 08.05.2009 after a long period of time. The last payment (previously) was made on 15.10.2007. The plaintiff has failed to show as to why the defendant made the said payment in round figure. Apparently, the dispute(s) would have been settled. I have also considered the fact that the defendants had made payment against various bills and "on account payment" in some cases only. The fact that defendant had been generally paying the exact amount of the invoices and payment in round figure of amount only in some cases, makes the version of the defendant much more probable than that of the plaintiff.
39. The result of the discussion hereinabove comes that I am not inclined to rely on the version of the plaintiff as discussed Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 26 of 27 CS No. 59917 hereinabove. The plaintiff having failed to discharge its onus, the issue no.1 and 2 are decided against the plaintiff and in favour of the defendant.
40. Since the issue no. 1 and 2 are decided against the plaintiff, issue no. 3, as a natural corollary has to be decided against the plaintiff for the reason that when plaintiff is not entitled to alleged principal amount itself, then the question of award of interest does not arise. In view of the answer of issue no.1 to 3 having gone against the plaintiff, although there is no need to advert to issue no.4, still the undersigned has no hesitation to observe that since plaintiff failed to discharge the onus of the issue no. 1 and 2, issue no.4 has also to be answered against the plaintiff and in favour of the defendant. R E L I E F
41. In view of my findings on the issues no. 1 to 4 above, the suit of the plaintiff fails and hence dismissed.
42. Decree sheet be drawn accordingly. No order as to costs.
43. File be consigned to record room.
Announced in the open court (DILBAG SINGH PUNIA) today i.e. 09.05.2017 District & Sessions Judge (North) Rohini Courts, Delhi Shivani Sharma vs. M/s. Hem Stitch India & Ors. Page : 27 of 27 CS No. 59917