Delhi District Court
M/S Dinesh Sanitary Storethrough ... vs M/S Bp Contracts Pvt. Ltd on 19 April, 2025
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 1080/2023
CNR No. DLCT010097252023
DLCT010097252023
M/S DINESH SANITARY STORE
( A registered partnership firm)
Through: its Authorized Representative
Shri Mukul Singh,
having its Principal place of business at:
3462/12, Khandelwal Market,
Gali Bajrang Bali, Chawri Bazar,
Delhi110006.
Phone No.9810014871
Email ID: [email protected].
......Plaintiff.
Vs.
M/s B.P. Contracts Pvt. Ltd.,
(A company registered under the Companies Act)
Having is Office at:
189, Ground Floor, Shahpur Jat,
New Delhi-110049.
Phone No.9654505979,
Email ID: [email protected] ... Defendant.
SUIT FOR RECOVERY OF RS. 41,52,077/-
Date of institution of suit : 20.07.2023
First Date before this court : 28.03.2024
MUKESH by
Digitally signed
MUKESH
KUMAR GUPTA
Date on which reserved : 17.04.2025
KUMAR Date:
GUPTA 2025.04.19
Date of Judgment : 19.04.2025
18:00:22 +0530
CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 1 of 38
Appearance(s) : Shri Anuj Gupta, Ms.Saguna Gupta, Advs. Ld. Counsels
for plaintiff.
Shri Arjun Sehgal, Adv., Ld. Counsel. for the defendant.
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon the plaintiff's for Recovery of Rs.41,52,077/- (which includes the principal amount of Rs.27,65,627/- and pre-suit interest component @ 12% per annum w.e.f. 07.05.2019 till filing of the suit amounting to Rs.13,86,450/-) alongwith interest @ 12% per annum pendentlite and future from the date of filing of suit till its realisation. The plaintiff has also prayed for costs of the suit.
(B) CASE OF THE PLAINTIFF:-
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) The plaintiff is a registered Partnership firm duly registered under the Indian Partnership Act, 1932 having its principal office at 3462/12, Khandelwal Market, Gali Bajrang Bali, Chawri Bazar, Delhi-
110006. This partnership firm was established vide a partnership deed dated 15.05.2016 executed amongst Mr. Ramesh Goel, Mr. Rajinder Goel and M/s Cosmic Multi Products Private Limited who all are partners of the plaintiff firm. Shri Mukul Singh is the Authorised Representative of the plaintiff firm who is well conversant with the facts of the case and duly authorised vide Authorization Letter dated Digitally signed by MUKESH 10.06.2023 to institute, sign and verify the plaint. The plaintiff firm is MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.04.19 18:00:29 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 2 of 38 one of the leading, well reputed and financially sound firm engaged in the business of distribution, trading, selling and supplying of various items of hardware and sanitary goods such as PVC, CPC & CPVC. UPVC Pipes, Pipes Fittings and Bathroom Fittings and other sanitary products. The defendant is a Private Limited Company duly incorporated under the provisions of Companies Act, 1956 and is engaged in the business of contracts and engineering works and offers quality solution in plumbing, sanitation, firefighting systems etc..
2.2) The defendant through its directors Mr. Abhishek Pradhan & Mr. Abhay Kumar Pradhan approached the plaintiff at its Principal Place of Business at Delhi and requested the plaintiff firm to supply various products of CPC, CPVC, UPVC Pipes, Bans, Coupling, Tees, elbows & other sanitary fittings to the defendant. On the assurance of the defendant of payment in time, the plaintiff entered into a business relationship with the defendant and agreed to supply the goods against various orders beings placed by defendant from time to time. The orders were placed by the defendant through telephonic calls and the goods so demanded/purchased were supplied and delivered during the period 2016 to 2018 against due acknowledgement by the respective clients/customers of defendant on the office copy of invoices raised against such delivered goods.
2.3) The plaintiff has also been maintaining the ledger accounts of the defendant in respect of the transactions made. The last supply of goods were made by the plaintiff firm to the defendant on 03.12.2018 and the last payment towards supply of goods was received by the Digitally MUKESH signed by MUKESH KUMAR plaintiff firm on 07.05.2019. As per the ledger account maintained by the KUMAR GUPTA GUPTA Date:
2025.04.19 18:00:46 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 3 of 38 +0530 plaintiff firm, a sum of Rs.27,65,627/- was due and outstanding against the defendant but the defendant did not pay the same despite repeated requests in person and reminders through telephonic conversation by its partners and other officials, but of no avail. The plaintiff through its partner/Authorised Representative Shri Mukul Singh has also approached the defendant several time requesting him to release the balance payment but defendant did not pay any heed to the same. Finally, the plaintiff was compelled to issue a legal notice dated 12.02.2022, calling upon the defendant to pay the outstanding amount with interest @ 12% per annum but the defendant neither responded to nor complied with the same despite service. The plaintiff has also exhausted the statutory remedy of pre-institution mediation resulting into issuance of Non-Starter Report by the concerned DLSA on 24.09.2022.
2.4) On 25.09.2019, the plaintiff had initiated insolvency proceedings under section 9 of the Insolvency and Bankruptcy Code, 2016 before Hon'ble National Company Law Tribunal, New Delhi vide case No. C.P.(1B)-2005/2019 titled as "Dinesh Sanitary Store Vs. B.P. Contracts Pvt. Ltd." against the defendant in respect of the amount outstanding towards the plaintiff to be paid by the defendant, however, the said application was dismissed on the ground of "pre-existing dispute" between the parties.
2.5) The plaintiff has claimed cause of action on various dates on which the orders were placed on the plaintiff, the goods were supplied to the defendant and on the date when the last invoice No. 4993 was raised by the plaintiff on 03.12.2018, on the date of making part payment by the MUKESH by Digitally signed MUKESH defendant on 07.05.2019, on the date of issuance of legal demand notice KUMAR GUPTA KUMAR Date:
GUPTA 2025.04.19 18:00:53 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 4 of 38 dated 12.02.2022, on the date of the plaintiff approaching the pre- institution mediation before concerned DLSA and issuance of Non- Starter Report dated 24.09.2022 besides claiming the same on
03.02.2022, the date when the Ld. NCLT dismissed its petition and has claimed that the same is continuing and subsisting.
2.6) Hence, the present suit for recovery of with interest and costs.
(C) CASE OF THE DEFENDANT:-
3. On receipt of summons for settlement of issues, the defendant contested the suit by filing a detailed Written Statement thereby taking various preliminary objections viz. the suit filed by the plaintiff has not been signed, verified and filed by a duly authorised person, the same is barred by limitation, the same being without any cause of action and the plaintiff not approaching the court with clean hands and suppressing material facts.
3.1) The defendant has also averred that it was in fact the plaintiff who has approached the defendant representing itself to be a proprietorship firm engaged in the business of supply of PVC pipes and fittings etc. and desirous of working with the defendant by offering discounted rates. It has also been averred that at the time of commencement of transactions, it was well understood between the plaintiff and the defendant that the products shall be supplied by the plaintiff to the defendant only upon a purchase order being raised by the defendant upon the plaintiff and the transactions shall be strictly Digitally signed MUKESH by MUKESH KUMAR KUMAR GUPTA Date: governed by the terms thereof. It has also been averred that the purchase GUPTA 2025.04.19 18:01:00 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 5 of 38 orders contain terms and conditions including the goods supplied being subject to cancellation and return. It has also been averred that in case of cancellation, the plaintiff was required to take the goods back within one week of date of intimation at its own costs. It has also been claimed that the products were required to be supplied by the plaintiff within specified time and without any difference in quality or quantity.
3.2) It has further been averred that the plaintiff contrary to the aforesaid started raising bills at exaggerated rate besides indulging in raising interpolated and forged bills without any supply of material. It was also been claimed that the material supplied was not in confirmity with the purchase orders and sometime sent in excess without any request or purchase order. It has also been stated that the plaintiff has duly acknowledged and apologized the aforesaid mistake on numerous occasions and assured to rectify the same in future which can be apparent from the facts that on several occasions debit notes were issued to the defendant against excess, deficient, defective or rejected material.
3.3) It has also been stated that in the month of January, 2018, the defendant came to the knowledge that the plaintiff company has been raising excess invoices besides charging exorbitant prices and when the same was brought to the notice of the plaintiff, it has represented that there are certain excess billing and the defendant was called up on to supply debit notes for making entries in the books. However, the plaintiff did not take any corrective measure on account of his dishonest intention despite defendant's e-mail dated 30.01.2018. Since the defendant was inclined to keep cordial business relation with the Digitally signed MUKESH KUMAR by MUKESH KUMAR GUPTA Date:
plaintiff, it carried out a detailed enquiry through its account department 2025.04.19 GUPTA 18:01:09 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 6 of 38 where several discrepancies were found which were also informed to the defendant vide e-mail dated 03.02.2018.
3.4) The defendant has claimed that on close scrutiny of the bills raised by the plaintiff, it was found that the same was raised at exaggerated rates, the material was not supplied in confirmity with the purchase order, bills were raised without any actual supply and the discount pay out structure was revised unilaterally. The defendant has made various request to the plaintiff for rectifying the same but to no avail. The defendant has finally claimed that the material were required to be supplied in terms of purchase orders which was deliberately flouted by the plaintiff and even the rejected material was never picked up from the sites in contravention of the terms of purchase order. It has also been averred that the plaintiff was also required to provide test certificate of all the material supplied with the invoices which was never supplied to.
The defendant has also claimed to have made several e-mails to the plaintiff dated 20.05.2019, 21.05.2019, 21.05.2019 and 25.05.2019 but the accounts were never reconciled. The plaintiff kept on assuring the defendant verbally but to the utter shock and surprise, the plaintiff instead of reconciling the account started sending and false notices under Insolvency and Bankruptcy Code. The defendant is stated to have also written a e-mail dated 20.09.2019 that the bills raised by the plaintiff were not on actual rate and the material supplied without a purchase order has not been collected back.
3.5) On merits, all the allegations made in the plaint have been denied as incorrect. The defendant has also questioned the constitution Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA of the partnership firm vide partnership deed dated 15.05.2016 and has GUPTA Date:
2025.04.19 18:01:17 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 7 of 38 stated that there is no privity of contract between plaintiff and defendant and as such plaintiff firm is barred under the proceedings with the defendant. The defendant has disputed the competence of Mr. Mukul the authorised representative of the plaintiff to sign, verify and institute the suit. It has also been claimed that the plaintiff has filed a bare-shell suit without disclosing complete and exact material before the court. It has also been stated that the plaintiff has failed to file the supporting purchase orders on the basis of which the material was supplied. It has also been claimed that the plaintiff has flagrantly violated the terms of purchase order where it was specifically mentioned that a test certificate was required to be sent alongwith the material and the order is subject to amendment and cancellation whereby which the rejected material was required to be collected by the supplier at its own costs. The defendant has disputed the invoices being interpolated, forged and fabricated, the ledger account being not complete and the last supply of goods being made by the plaintiff on 03.12.2018. Denying any cause of action, the defendant has refuted the outstanding balance of Rs.27,65,627/- or the interest component of Rs.13,86,750/-. The defendant has prayed for dismissal of the suit with exemplary costs.
(D) RESPONSE OF PLAINTIFF:-
4. A detailed replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement. It has been contended that the suit is filed well within limitation as the cause of action lastly arose on 07.05.2019 on which date, the defendant has made payment to the Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date: CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 8 of 38 2025.04.19 18:01:28 +0530 plaintiff through RTGS. The plaintiff has denied that there was any understanding at the outset that the products/goods shall be supplied only after receipt of a purchase order and that the transaction were to be strictly governed by the terms thereof. The plaintiff has stated that the defendant used to place order through telephonic calls and on few occasions purchase orders were also raised, also claiming that the terms and conditions purportedly mentioned in purchase orders were never mutually agreed to the plaintiff. It has also been claimed that even the invoice raised by the plaintiff was never raised on the basis of purchase order and same were raised solely on the basis of oral telephonic orders placed by the defendant from to time. It has also been averred that the the invoice raised by the plaintiff was always on the basis of prices agreed to between the parties for which the plaintiff has duly filed its GST Returns and paid requisite tax against which the defendant has even taken GST Tax Claim input which clearly shows that the defendant has duly accepted the prices mentioned in the invoices. It has also been denied that there has been any interpolation or any exaggeration in the invoices and the defence has been taken as absolutely false and fictitious.
4.1) The plaintiff has further denied that there has been any excess, deficient, defective or rejected material against which debit notes were issued by the defendant. Disputing the e-mail dated 30.01.2018 being issued by the defendant in respect of debit notes, the plaintiff has claimed, it was in fact the plaintiff who vide its mail dated 31.01.2018 has disputed certain invoices raised by the plaintiff being not reflected in the account statement maintained by the defendant. It has also been Digitally signed stated that there has been no occasion for reconciliation of account or by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.04.19
CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 9 of 38
18:01:34
+0530
rectification of invoices as no extra billing was ever done by the plaintiff. It has been further stated that after e-mail of 31.08.2018, it was defendant who did not come forward to rectify its account and started avoiding the telephonic calls and rather it was only after receipt of notice from the plaintiff under the Insolvency and Bankruptcy Code, the defendant in a planned manner sent 3-4 e-mails with a span of 5 days to protect their interest. The plaintiff has reiterated the prayer clause as mentioned in the plaint.
(E) CRYSTALISING THE DISPUTE :-
5. On pleadings of the parties, documents relied upon and after hearing the parties, the following issues were framed for adjudication vide order dated 28.10.2024.
ISSUES.
(1) Whether the suit of the plaintiff is not signed, verified and filed by a duly authorized person in accordance with law, if so, its effect? OPD (2) Whether the plaintiff has not approached the court with clean hands and has concealed material facts, if so, its effect.? OPD (3) Whether the plaintiff is entitled to a decree of Rs.41,52,077/-against the defendant?OPP (4) Whether the plaintiff is entitled to any interest on such amount, if so, at what rate and for what period?OPP Digitally signed by (5) Relief.
MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 18:01:40 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 10 of 38 (F) EVIDENCE OF PLAINTIFF.
6. Plaintiff, in support of its case, got examined its Authorised Representative Shri Mukul Singh as PW1 who in his deposition has reiterated the contents of the plaint on oath in its affidavit Ex.PW1/A. He got exhibited the following documents on record:
1. Copy of Authorisation Letter dated Ex.PW1/1 (OSR) 10.06.2023 in his favour :
2. Copy of Partnership Deed Ex.PW1/2 (OSR)
3. Registration documents i.e. the Form "A" Ex.PW1/3 (colly) and Form "B"
4. Copy of GST Registration Certificate of Ex.PW1/4 (colly) plaintiff firm
5. Office Copies of 12 Invoices Ex.PW1/5 (Colly)
6. Ledger of the Running Account in respect Ex.PW1/6 (colly) of defendant.
7. Certificate u/s 65-B of the Indian Evidence Ex.PW1/7 Act, 1872
8. Copy of Legal Demand Notice Ex.PW1/8
9. Non-Starter Report Ex.PW1/9 The witness has deposed on oath that the defendant made several purchases from the plaintiff during the year 2016 to 2018 and used to make on-account interim payments in the bank account of the plaintiff thereby maintaining a running account. The witness has further deposed Digitally signed by that whatever goods were purchased by the defendant from the plaintiff, MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 18:01:53 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 11 of 38 +0530 the supplies/deliveries thereof were acknowledged by the defendant's representative or its clients or customers on the office copy of the invoices raised against such delivered goods. The witness has further deposed that as per the statement of account maintained by the plaintiff company, there was an outstanding balance of Rs.27,65,627/- which was due and payable by the defendant to the plaintiff alongwith accrued interest which the defendant has failed to pay despite requests and service of legal notice.
7. The witness was subjected to a detailed cross-examination by Ld. Counsel for defendant who has tried to puncture his testimony on the aspect of his competence to depose before the court on behalf of plaintiff, the discrepancies in the ledger account, supply of goods covered by the invoices, filing of bills/invoices/e-way bills/GR and statement of account relied upon by the plaintiff and other corollary aspects. The witness has denied that the Authorisation Letter dated 10.06.2023 executed in his favour is not valid as no document has been filed to show that Shri Ishan Goel, has any authority to sign on behalf of the third partner M/s Cosmic Multi Product Pvt. Ltd. While admitting that he is not an employee of the plaintiff, the witness has deposed that he is well aware about the transactions between the plaintiff and the defendant which started from 2016 till 2018. The witness has admitted that neither any invoice nor ledger account prior to 01.04.2017 has been placed on record by the plaintiff. He has further deposed that he has not filed alleged all invoices of Rs.27,65,627/- on judicial record as all payments were not made by Digitally signed by MUKESH defendant on bill to bill basis due to which the opening balance of ledger MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2025.04.19
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+0530
account when added with the invoices raised, would show the outstanding of dues payable by the defendant to the plaintiff. The witness has admitted that there is nothing on record to show that opening balance of Rs.36,30,130/- in Ex.PW1/6 for the Financial Year 2017-18 was ever acknowledge by the defendant or the same was being brought to the knowledge of the defendant by any written communication, WhatsApp or any other mode. He has further admitted that no transport/e-way bills/GR/Lorry Receipts/Receipt of delivery of goods supplied by the plaintiff to the defendant has been placed on record for receipt of goods so delivered to the defendant or to show that the alleged goods of Rs.27,65,627/- were delivered to the defendant. The witness has further deposed that there were discrepancies between the plaintiff and the defendant's account which were duly notified in e-mails exchanged between the plaintiff and the defendant. The witness has exhibited the e-mails dated 20.05.2019, 21.05.2019 and 25.05.2019 sent by defendant for reconciliation of account were replied by the plaintiff as Ex.PW1/D-1. The witness has answered regarding the e-mails Ex.PW1/D-1(colly) that the e-mails were replied but the reconciliation was not sent. He has denied the suggestion that the ledger account placed on record for the financial year 2017-18 is interpolated, forged and fabricated. He has admitted that the entry of Rs.4,17,554/- being discount on sales is wrongly mentioned in debit entry instead of credit entry in Ex.PW1/6. He has further admitted that he has not filed any document to show the claim of GST in respect of the transactions. The witness has denied the suggestion that plaintiff did not provide any Digitally signed by MUKESH MUKESH KUMAR GUPTA ledger account despite receiving e-mail, or that the statement of ledger KUMAR GUPTA Date:
2025.04.19 18:02:06 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 13 of 38 account of the plaintiff for the financial year w.e.f. 01.04.2017 to 31.03.2018 was forged and fabricated or that all the purchase orders were verbal in mode, however, the defendant used to place purchase orders vide e-mails or that he and the plaintiff are deliberating concealing the purchase orders to mislead the court and lastly denied the suggestion that the necessary documents accompanying the present suit not filed because the plaintiff was well aware that there is no such liability qua the defendant as alleged.
8. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed on 17.03.2025.
(G) DEFENDANT'S EVIDENCE :-
9. The defendant in his defence got examined one of its director Shri Abhishek Pradhan as DW1 who tendered his evidence by way of affidavit as Ex.DW1/A thereby reiterating the contents of the Written Statement on oath. He got exhibited the following documents on record:
1. Board Resolution dated 22.11.2023 in his Ex.DW1/1 favour
2. Print out of E-mail dated 31.01.2018 Ex.DW1/2
3. Print out of E-mail dated 03.02.2018 Ex.DW1/3
4. Print out of E-mail dated 27.05.2019 Ex.DW1/4 Digitally signed by MUKESH 5. Print out of E-mail dated 28.05.2019 Ex.DW1/5 MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 18:02:13 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 14 of 38
6. Print out of E-mail dated 20.09.2019 Ex.DW1/6
7. Print out of E-mail dated 20.09.2019 Ex.DW1/7
8. Print out of E-mail dated 11.10.2017 Ex.DW1/9 He has deposed that the defendant has regularly paid the outstanding amount against the supply of goods made by the plaintiff, however, the plaintiff despite receiving regular payments from the defendant deliberately started raising forged and fabricated demands by interpolating bills without even supplying the material to the defendant, sending wrong and defective goods contrary to the orders placed by the defendant. He has denied the liability of either the principal amount of Rs.27,65,627/- or the interest component of Rs.13,86,450/-.
10. The witness was subjected to a detailed cross-examination by Ld. Counsel for the plaintiff, wherein the witness has not been able to clearly depose the year of incorporation of the defendant company or the year from which the business has commenced with the plaintiff. The witness during cross-examination has showed loss of memory in respect of the purchase order referred to in his affidavit being filed on record or the terms and conditions of purchase orders despite confrontation with its own documents Ex.DW1/3 to Ex.DW1/7 and Ex.PW1/D1. While referring to Ex.DW1/9 the witness has stated the same is a purchase order Digitally signed but admitted that the same do not contain any terms and conditions. The by MUKESH MUKESH KUMAR GUPTA KUMAR Date: witness has admitted that several purchase orders were issued by the GUPTA 2025.04.19 18:02:20 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 15 of 38 defendant company to the plaintiff but has failed to specify as to how many such purchase orders were issued to the plaintiff. The witness has admitted that no statement of account in respect of the plaintiff company maintained by the defendant or any credit or debit note has been filed on record. The witness has admitted that no police complaints were ever made against the plaintiff in respect of wrong or defective goods or for raising interpolated or forged bills but has stated that he informed the plaintiff on phone with a stipulation that if he repeats he will make complaint to the police. While admitting that the books of accounts were duly maintained or audited by the defendant company, the witness has shown ignorance about their existence. The witness has admitted that he has not filed any complaint regarding wrong or defective goods interpolated or forged bills, change in discount based structure on record. The witness has further admitted that he has not filed any document on record to show that in case any material not covered by the purchase order or rejected or cancelled is required to be picked up by the plaintiff at its own costs, though, relying only upon the e-mails filed by the defendant. The witness has shown ignorance about the GST number mentioned on the invoices Ex.PW1/5 being pertaining to the defendant, voluntarily adding that there are more than 10 GST numbers of the defendant in different States. The witness has admitted that no interest component on delayed payment was ever agreed to adding that the same is based on understanding and industry norms. The witness has admitted that his work is to take care of business development and site execution and not accounts and accordingly shown lack of knowledge about the Digitally signed by accounts maintained by the defendant company.
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2025.04.19 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 16 of 38 18:02:26 +0530
11. No other witness was examined by the defendant and the evidence of the defendant was closed vide statement dated 02.04.2025.
(H) ARGUMENTS ADDRESSED:-
ARGUMENTS OF PLAINTIFF.
12. Ld. counsel for the plaintiff Shri Anuj Gupta has vehemently argued that the plaintiff has proved its case in all aspects and the defendant has failed to bring out any contradiction from the cross-examination of the witnesses of the plaintiff. It has further been argued that during the period 2016 to 2018, the defendant made several purchases of goods on credit from the plaintiff, materials with invoices were supplied at different construction sites of the defendant as per the instructions of defendant and the defendant used to make part payments against the invoices and the parties were maintaining running ledger accounts of each other in their respective books of accounts. The last on-account payment was made by the defendant on 07.05.2019 leaving the balance amount of Rs.27,65,627/- as on 07.05.2019 which was not paid by the defendant. Resultantly, the plaintiff issued a legal notice dated 12.02.2022 to the defendant followed by legal proceedings u/s 9 of IBC before Hon'ble NCLT which was declined on 03.01.2022 due to pre- existing dispute among parties. It has also been argued that in the cross- examination of PW1, nothing incriminating and /or any sort of discrepancy came on record. On the point of limitation, it has been argued that the last payment made by the defendant through RTGS on 07.05.2019 and if the last payment is taken to be the bank transfer made Digitally signed by MUKESH by the defendant on 07.05.2019 then also the suit is well within the MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 17 of 38 18:02:32 +0530 period of limitation after considering the judgment of Hon'ble Apex Court on Covid-19 which has extended the limitation.
13. Ld. Counsel for the plaintiff has further argued that the defendant has not disputed the transactions made between the parties, besides, the defendant has neither filed their ledger account on record nor controverted the ledger account of the plaintiff. Even as per the deposition of DW1, the defendant company being a private limited company gets its ledger account audited by an auditor regularly, however, the defendant has not placed on record its ledger account to contradict the claim of the plaintiff and therefore, failed to discharge the onus lying upon defendant by placing reliance upon Navigators Visa Global Logistics Ltd. Vs. Thermoking through its proprietor RFA(Comm.) 18/2023 CM Appl. 8666/2023. Ld. Counsel for the plaintiff has also argued that when a party abstains himself from giving substantial evidence, an adverse inference can be drawn against it. In this regard, he has relied upon the judgment Deshraj Lakhiram Juneja Vs. Mohmad Ishaque S/O SK. Ismail & Anr. 2004 (4) All MR 15 . At last, he has argued that the suit of the plaintiff has been proved and the same be decreed with costs and interest as prayed for.
ARGUMENTS OF DEFENDANT:
14. Ld. Counsel for the defendant Shri Arjun Sehgal has vehemently argued that the suit filed by the plaintiff is liable to be dismissed as the same has not been filed by an authorised person since there is no Digitally MUKESH signed by MUKESH KUMAR document on record to show that Shri Ishan Goel is the authorised KUMAR GUPTA GUPTA Date:
2025.04.19 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 18 of 38 18:02:44 +0530 representative of the third partner M/s Cosmic Multi Products Private Limited. Ld. Counsel for the defendant has further argued that Shri Ishan Goel is not the employee of the plaintiff and questioned his authority to authorise Shri Mukul Singh to depose on behalf of M/s Cosmic Multi Product Pvt. Ltd. Ld. Counsel for defendant has further argued that the computer generated ledger is not supported with the appropriate certificate u/s 65B of Indian Evidence Act, 1872 as Mr. Mukul singh is neither the employee of the plaintiff firm nor an Executive Assistant of the plaintiff firm. He has relied upon judgment of State Bank of Travancore Vs. M/s Kingston Computers (I) Pvt. Ltd. Civil Appeal No. 2014 of 2011. Ld. Counsel for defendant has further vehemently argued that the entire ledger has not been produced before the court by the plaintiff. An opening balance of Rs.36,30,130/- has been shown in ledger for the financial year 2017-18 and the plaintiff is duty bound to produce the entire ledger for this amount. He has further argued that PW1 in his cross-examination admitted that the entire ledger is not produced before the court and there is nothing on record to prove that the opening balance of Rs.36,30,130/- for the financial year 2017-18. He has vehemently argued that in fact plaintiff is trying to enforce a time barred debt under the guise of later invoices while the defendant has made all payments from time to time. Ld. Counsel for the defendant has further argued that there is mismatch between the total sum claimed of the invoices and the credit being shown in favour of the defendant which establish that there is nothing left to recover from the defendant Digitally relying upon RFA No. 892/2018 M/s Laxmi Narayan Builders and signed by MUKESH MUKESH KUMAR KUMAR GUPTA Suppliers Vs. M/s Ganpati Buildtech Pvt. Ltd . He has vehemently GUPTA Date:
2025.04.19 18:02:58 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 19 of 38 argued that the present suit is liable to be dismissed with exemplary costs.
(I) ANALYSIS & DETERMINATION: -
15. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record and have given a thoughtful consideration to the same. My issue-wise determination is as under:-
ISSUES No.1 : "Whether the suit of the plaintiff is not signed, verified and filed by a duly authorized person in accordance with law, if so, its effect?OPD"
16. The onus to prove this issue was held upon the defendant, who has taken a preliminary objection in the Written Statement that the present suit is not signed, verified and filed by a duly authorized person in accordance with law. It has been pleaded that Shri Mukul Singh is neither a competent person nor has any knowledge about the plaintiff's firm. It has been further pleaded that Shri Mukul Singh is neither aware of the facts of the present case nor involved in day-to-day financial commercial affairs of the plaintiff firm nor is authorised and competent to institute the present suit. Ld. Counsel for the defendant has relied upon State Bank of Travancore case (supra) in support of his contention. In this regard, it may be seen that defendant has failed to lead any specific evidence on the aforesaid issue in the testimony of his sole witness DW1 Shri Abshik Pradhan, though Ld. counsel for the plaintiff during cross-examination has tried to question the competence of the witness by questioning the authorization letter dated 10.06.2023 as Digitally signed being invalid and also asking about his employment with the plaintiff MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2025.04.19 GUPTA 18:03:06 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 20 of 38 firm coupled with the fact that he is the Executive Assistant of Mr. Ishan Goel of Cosmic Multi Product Pvt. Ltd. which is one of the partner of the plaintiff partnership firm.
17. If the proposition is comprehended in simple words, there are two legal aspects which can be briefly dealt with, one is the capacity of plaintiff partnership firm to authorise a third person who is not employee of firm as its authrised representative to institute the suit and depose on its behalf and the second is the technical aspect of the suit being not properly verified in accordance with law.
18. In so far as the first aspect is concerned, Section 69(2) of The Partnership Act, 1932 (hereinafter referred to as "Act") provides that the partner, who is instituting the suit on behalf of the firm based on contractual obligations with the third parties, has to register his name before the Registrar of Firms. The said provision, nowhere, mandatorily provides that it is the registered partner, who has to sign, institute and prosecute the suit himself personally only on behalf of the partnership firm, and he cannot delegate the powers to third person for doing such an act. In terms of Section 2(a) of the Act, the act of the firm also means the act done by the agent of the firm. Further, Order III Rule (1) of Code of Civil Procedure, 1908 provides that:
"...act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his Digitally signed by recognized agent..".
MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2025.04.19
18:03:12
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CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 21 of 38 Therefore, it is a legal proposition that an authorised agent can act on behalf of partnership firm unless there is an express bar to do so. Ld. Counsel for the defendant could not show any law which expressly bars the authorised agent to act as such.
19. Further, sub-rules (1) and (2) of Rule 1 of Order XXX CPC, being enabling provision, nowhere expressly bars the "agent" authorized by registered partners to sue on behalf of the partnership firm. On the contrary, in terms of Order III Rule 1 CPC, the authorized agent can act on behalf of the partnership firm. Although the word "..... by any one of such persons..." used in Sub-Rule (2) of Order XXX CPC means partner of partnership firm, yet such partner can act either himself or through authorized agent in terms of Order III Rule 1 CPC. The aforesaid proposition of law along with the situation that even any of the partners and not necessarily all the partners of the partnership firm can authorise any third person to act on behalf of partnership firm has been succinctly dealt by Hon'ble Supreme Court in Purushottam Umedbhai & Co. Vs. Manilal & Sons, MANU/SC/0004/1960: (AIR 1961 SC 325), where the Hon'ble Court has held that Section 18 of the Act prescribes that a partner is an agent of the firm for the purpose of business of the firm and Section 19 (2) of the Act, prescribes instances where, in absence of any usage or customs of trade to the contrary, the implied authority of a partner does not empower him to do matters enumerated in clauses (a) to
(h). It has been held that it is significant that in all these clauses there is no prohibition on a partner to authorise an individual to institute a suit on behalf of the firm. Hence, partners or any of the partners of a partnership Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date: CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 22 of 38 GUPTA 2025.04.19 18:03:18 +0530 firm can legally authorise an individual to sue on behalf of the firm.
20. Applying the aforesaid proposition of law to the facts of the case, a bare perusal of Letter of Authorisation Ex.PW1/1 shows that it has been executed by all the three partners namely Shri Ramesh Goel, Shri Rajinder Goel and Mr. Ishan Goel, Director of M/s Cosmic Multi Product Pvt. Ltd. and they have authorised Mr. Mukul Singh to file plaint and prosecute the suit on behalf of the plaintiff firm before the Hon'ble High Court, District Court or any other courts. Thus Ex.PW1/1 shows a complete delegation of power by the partners of plaintiff firm in favour of Mr. Mukul Singh to file, institute and contest the suit on behalf of the plaintiff firm. Accordingly, the contention of the defendant that Shri Mukul Singh is not the authorised person to act on behalf of the plaintiff firm is without any merits and is liable to be rejected.
21. In so far as the second aspect is concerned, it may be seen that as per the requirement of Order VI Rule 15 CPC, every pleading has to be verified at the foot either by the parties or one of the party/authorized representative who is well acquainted with the facts of the case. This verification has to be in reference to the numbered paragraphs of the pleading, as to what the verifier verifies of his own knowledge and what he verifies upon information received and believed to be true. The verification has to be then signed by the person making it by mentioning the date and the place at which it was signed. By virtue of amendment Digitally signed by Act in CPC (w.e.f. 01.07.2002) additionally an affidavit is required to be MUKESH MUKESH KUMAR KUMAR GUPTA furnished in support of the pleadings. In the instant case, there is clear GUPTA Date:
2025.04.19 18:03:25 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 23 of 38 verification by Shri Mukul Singh, the authorised representative of the plaintiff firm duly authorised vide Authorisation Letter dated 10.06.2023 Ex.PW1/1, verifying the contents of paras No. 1 to 23 of the plaint to be true and correct to his knowledge while those of paras No. 24 to 31 as believed to be true and correct on the basis of information received. The verification solemnly verified the contents of the plaint to be correct to his best knowledge and belief with the date and place mentioned just above it. Additionally, the same is duly supported by an affidavit dated 19.07.2023 in support of the pleading as per Order VI Rule 15 (4) of CPC. Accordingly, the contention of the defendant that the suit has not been verified properly is also without any merits and liable to be rejected.
22. Thus, on the basis of aforesaid discussion and taken on the yardstick of preponderance of probabilities, this issue is decided, accordingly against the defendant and in favour of the plaintiff.
ISSUES NO. 2 & 3.
"(2) Whether the plaintiff has not approached the court with clean hands and has concealed material facts, if so, its effect.? OPD (3) Whether the plaintiff is entitled to a decree of Rs.41,52,077/-against the defendant?OPP
23. The onus of proving issue No.2 is on the defendant while that of issue no. 3 is on the plaintiff. These issues are taken together as they are not only pivotal of the entire lis but are also inextricably interconnected. They are related to entitlement of the plaintiff on one hand and the defence of the defendant on the other and the result of one will Digitally automatically affect the outcome of the other. Issue No.2 has arisen on signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2025.04.19
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CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 24 of 38
the basis of preliminary objection in the written statement that the
plaintiff has not approached the court with clean hands and concealed material facts. Though the defendant has not been specific in details regarding the plaintiff approaching the court without bonafides and concealing the nature of specific facts but what has been culled out from the pleadings is primarily two aspects, one regarding the fact that each and every transactions and supply of goods was stated to be made only on the basis of a purchase order raised by the defendant upon the plaintiff and it has been additionally stated that as per understanding, the parties were bound by terms and conditions of purchase order according to which the plaintiff was required to supply the test report in respect of each product with the supply thereof, besides in case of any goods being sent either contrary to the specification in the purchase order or defective or otherwise or the order being cancelled, the plaintiff was required to pick back the material at their own costs. The second aspect which is actually part of the defence of the defendant is that the plaintiff has raised exaggerated the bills, the material being not supplied in confirmity with the purchase order, the bills were raised in the invoice for which no material was ever supplied and the discount pay out structure was revised unilaterally by the plaintiff. In addition to this, the defendant is stated to have made various attempts for reconciliation of accounts with the plaintiff which was not responded to properly by the plaintiff. The defendant has finally taken a plea of issuance of Debit Note which was not duly given credit to by the plaintiff in its ledger/statement of account Ex.PW1/6. Thus, the defendant has levelled the invoices as forged and Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA fabricated and the statement of account as incomplete and incorrect Date:
GUPTA 2025.04.19
18:03:37
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CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 25 of 38 document.
24. Adverting to the aforesaid aspect in the light of evidence led. It may be seen that if the evidence of the defendant is carefully marshalled the entire basis of the aforesaid plea of defence hings upon the existence of purchase orders being the first communication between the defendant and the plaintiff for the purpose of supply of material. Incidentally, not even a single purchase order has been filed on record by the defendant. The defendant has tried to put vehement reliance on e-mail dated 11.10.2017 Ex.DW1/9 which is a communication showing urgent requirement of certain material. The e-mail has been sent by the purchase cell of defendant to the plaintiff asking for supply of certain material and contains the billing and delivery address. When the witness of defendant DW1 was subjected to cross-examination, the witness has shown ignorance regarding the purchase orders being filed on judicial record, on the contrary, the witness has stated that whenever there used to be requirement of the defendant there were two modes to communicate one is through e-mail and the other is purchase order but when confronted with Ex.DW1/9, the witness has mixed up the two thereby stating that the e-mail is a purchase order, admitting that other than the requirement by e-mail Ex.DW1/9, no other purchase orders has been placed on record. The witness has not been able to specify as to how many purchase orders have been placed upon the plaintiff but has admitted that he has not filed any purchase order for the period between Digitally signed by 2016 to 2018 except the one which has already been referred to i.e. MUKESH MUKESH KUMAR KUMAR Ex.DW1/9. Incidentally, this Ex.DW1/9 is not corresponding to the GUPTA Date:
GUPTA 2025.04.19
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CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 26 of 38
supply invoice from the plaintiff for the specific period or the specification of goods asked for. Now, even if the court considers Ex.DW1/9 to be a purchase order, the same does not contain any terms and conditions either regarding the mandatory pre-condition of test report or so- called conditions of taking the goods back in case of any defect, extra supply or even cancellation of orders. When the oral evidence in this regard is seen, the witness has by and large either showed ignorance or lack of knowledge or has forgotten the facts. There is no specification or agreed terms and conditions proved on record by way of any cogent evidence which shows that the supplied goods were to be taken back by the plaintiff in above mentioned specific conditions of defect or over supply or cancellation and as such this contention of the defendant being not supported by evidence becomes nothing but bald assertions.
25. Adverting to the second aspect which is actually a part of defence regarding the plaintiff having raised exaggerated bills, not supplied the bills in terms of purchase orders and raising bills for goods which were never supplied to the defendant, the defendant has placed havy reliance upon the e-mail Ex.DW1/2 to Ex.DW1/7 besides e-mail Ex.DW1/D-1. The contention of the defendant is that discrepancies were found in the invoices and accounts of the plaintiff and when the same were discovered by the defendant, it carried out a detailed enquiry through its own accounts department and also requested the plaintiff for reconciliation which was never carried out by the plaintiff and hence, the accounts of the plaintiff has remained unverified, forged and fabricated and the suit Digitally MUKESH signed by MUKESH based on these invoices Ex.PW1/5 (colly) and ledger Ex.PW1/6 is KUMAR KUMAR GUPTA Date:
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+0530
without any substance.
26. Now, if these e-mails are carefully examined in the light of evidence of DW1, which has come on record, the same shows a contrary picture. DW1/2 which is an e-mail dated 31.01.2018 (wrongly mentioned by the defendant as 30.01.2018) was relied upon by the defendant to show that the defendant has duly notified the plaintiff regarding false, frivolous and excess bill and statement of account, however, when Ex.DW1/2 is carefully examined, the same is in fact an e-mail written by the plaintiff to the defendant showing discrepancies in the account of the defendant and not of the plaintiff. It shows that there are certain bills which have not been shown in the ledger account of the defendant and certain bills which are missing in the accounts of the defendant. By way of the aforesaid communication, it is the plaintiff who is asking for a clarification from the defendant and not vice-versa. The other contention of the defendant is that in the month of January, 2018, the plaintiff was found cheating by raising forged and fabricated bills but no such communication was made to the plaintiff immediately. Even if it is assumed as contended that there were oral communication between the parties, they heavily relied upon the mail dated 03.02.2018 Ex.DW1/3 which is worth mentioning. The same is a cryptic e-mail with one sentence "Mr. Gupta Ji and Dass Ji please go through their bills- final reminder by me. Abhishek Pradhan" The court is at loss to understand as to how the same communicates raising of false and fabricated bills or cheating by the plaintiff. In case of the defendant was Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA agitated with the conduct of the plaintiff in respect of financial GUPTA Date:
2025.04.19 18:04:01 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 28 of 38 irregularities, he is reasonably expected to write in details characterising the particular thereof and at least showing its anguish. When it comes to oral evidence the witness has admitted that he has not filed any document to show that the bills were exaggerated or has filed any quotation or rates showing agreed rates for supplies. The witness has admitted that it has not filed any document alongwith corresponding purchase orders showing that supply was not made in conformity with the purchase order. He has also admitted that he has not filed any bills raised for material supply without the purchase order.
27. The defendant has made reference to frantic e-mails made on 20.05.2019, 21.05.2019 and 25.05.2019 Ex.DW1/D1 which shows that e- mails were sent more than once in a single day. Even when these mails are examined, the same do not show that the defendant was even slightly disturbed by the conduct of the plaintiff for raising exaggerated bills, forging bills without supply and interpolating the rates. These e-mails are also worth mentioning which says only one single line "Dear Sir, please send us your Accounts Statement since starting to till date for reconciliation, thanks and regards.- A.K. Gupta" A simple etymological meaning of the same shows that the request for reconciliation was made for the first time by the defendant but it does not reflect any communication or anguish regarding alleged forgery, exaggeration or interpolation. Ld. Counsel for plaintiff during the course of arguments has stated that frantic e-mail on a short period has been made by the defendant only after the plaintiff has issued a legal notice under the IBC Digitally for creating a false defence and protecting itself. Similar is the fate of signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2025.04.19
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CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 29 of 38
Ex.DW1/5 which is also a cryptic e-mail without conveying what has been stated in the affidavit Ex.DW1/A. The other e-mails Ex.DW1/6 and Ex.DW1/7, relied upon by the defendant and sent on 20.09.2019, are verbatim re-production in as much as the same detailed out the entire defence of the defendant but the same is only after the plaintiff has initiated IBC proceedings before the NCLT as reply to legal notice has been repeatedly referred.
28. The defendant has also shown over reliance on debit notes and the plaintiff changing the discount payout structure unilaterally, however, when the evidence in this regard is seen, neither the debit note nor the agreed discount payout structure has seen the fact of judicial record. Even during oral evidence the witness has agreed that it has not filed any discount pay structure agreed upon or any document to show on record that the discount pay structure was changed unilaterally. Thus, taken on the yardstick of preponderance of probabilities, the defendant has utterly failed to prove the aspect of either concealment of material facts or the plaintiff not approaching the court with clean hands.
29. Now adverting to the entitlement of the plaintiff to the suit amount, the plaintiff has claimed a sum of Rs.41,52,077/- which includes the principal outstanding amount of Rs.27,65,627/- and the pre-suit interest component of Rs.13,86,450/- @ 12% per annum for the period 07.05.2019 to 20.07.2023 i.e. the date of filing of suit. The plaintiff has based its claim on the basis of ledger Ex.PW1/6 and 12 invoices Digitally signed by MUKESH Ex.PW1/5 (colly). Now before deciding the amount, it would be MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 18:04:14 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 30 of 38 +0530 pertinent to take up the issue of limitation which is a legal issue which the court is required to determine for the purpose of deciding entitlement of the plaintiff to the relief claimed. As per Section 3 of the Limitation Act, 1963, any suit, application or appeal has to be filed within the period of limitation as prescribed under the schedule annexed to the Limitation Act and subject to provisions contained in Section 4 to 24. This has to be done irrespective of the fact whether limitation has been set up as a defence or not. It is a settled proposition of law that law of limitation is a law of repose, peace and justice which bars the remedy after the lapse of particular period by a public policy and expediency. Reliance is placed on AIR 1991 Kerala 83 Craft Centre V. Koncherry Coir Factories. It may be seen that the plaintiff has claimed an extension of limitation on the basis of last payment of Rs.2,00,000/- which according to Ex.PW1/6 has been made on 07.05.2019 whereby which the payment has been made by the defendant to the plaintiff through RTGS. If the said date is considered for reckoning the limitation, by applying the section 19 of Limitation Act, the present suit ought to have been filed on or before 07.05.2022. It would be relevant to mention here that on account of Covid-19 pandemic situation, the period from 15.03.2020 till 28.02.2022 stands excluded for the purpose of limitation in terms of the judgmentof the Hon'ble Supreme Court of India in Suo Motu Writ Petition (C) No.3 of 2020 in Re: cognizance for extension of limitation (2022) 3 Supreme Court cases 117. In its recent judgment, Babasaheb Raosaheb Kobarne & Anr. Vs. Pyrotek India Private Limited & Ors.
Digitally in SLP No. 2522/2022 vide pronouncement dated 09.05.2022 the signed by Hon'ble Supreme Court of India has held that:
MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2025.04.19
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'.....the period from 15.03.2020 till
28.02.2022 shall have to be excluded for the purposes of limitation...... the said order shall also be applicable with respect to the limitation period prescribed under the Commercial Courts Act, 2015"
30. Hence, applying the ratio of the aforementioned judgment, the present suit having been filed on 20.07.2023 (e-mode) is well within the period of limitation. Though the plaintiff was required to mention the grounds upon which exemption from the law of limitation is claimed in terms of Order VII Rule 6 CPC, however, since the plaintiff has claimed such exemption during the course of arguments and the basis is judgment of Hon'ble Supreme Court and such exemption, is also consistent with the ground set out in the plaint, the court would consider the same.
31. As already discussed, the plaintiff has claimed its entitlement to the principal amount on the basis of ledger Ex.PW1/6 which has been filed for the period 01.04.2017 to 24.06.2023 showing an outstanding balance of Rs.27,65,627/- as on 31.03.2023, however, in terms of Section 34 of Indian Evidence Act, 1872, the entries made in books of account including those maintained in electronic form are relevant when they are maintained in the ordinary course of its business, but such statement shall not alone be sufficient to charge any person with liability. In simple words, these Statement of Accounts so maintained, are required to be corroborated by the plaintiff by way of other corroborating evidence for Digitally the purpose of fastening liability on the defendant. Reliance placed on signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 18:04:26 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 32 of 38 (2000) 1 SCC 434 Ishwar Dass Jain (Dead) through LR's Vs. Sohan Lal (Dead) by LR's.
32. Accordingly, the plaintiff is required to corroborate its ledger entries Ex.PW1/6 by way of corroborated evidence in order to fasten the liability upon the defendant. However, if the evidence led for corroborating the ledger entries is carefully seen, the plaintiff has relied upon 12 tax invoices/bills (Ex.PW1/5) details of which are mentioned as under:-
Sl. Date Bill Number Amount (in Rs.)
1. 11.09.2018 3322 4,50,634/-
2. 03.12.2018 4991 53,507/-
3. 03.12.2018 4993 1,48,011/-
4. 01.04.2017 S-04 56,241/-
5. 21.04.2017 S-357 2,01,949/-
6. 14.08.2017 812 61,639/-
7. 14.08.2017 813 54,240/-
8. 14.08.2017 814 768/-
9. 14.08.2017 815 25,493/-
10. 22.08.2017 944 62,355/-
11. 24.10.2017 1904 6,17,346/-
12. 11.12.2017 2744 2,01,659/-
Total 19,33,842/-
Digitally signed
by MUKESH
MUKESH KUMAR
GUPTA
Thus, the total liability as reflected from these invoices and also referred KUMAR Date:
GUPTA 2025.04.19 18:04:32 +0530 in ledger Ex.PW1/6 are to the tune of Rs.19,33,842/-. Pertinent to CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 33 of 38 mention here that Ex.PW1/6 also refers to the payment received by the plaintiff from the defendant from time to time, the dates of these payments are also enumerated for the purpose of convenience as here under:
Sl. No. Date Mode of payment Amount paid
1. Journal (discount on sale being 4,17,554/-
amount of bill dated 29.03.2017)
2. 19.04.2017 RTGS 7,00,000/-
3. 07.07.2017 RTGS 3,32,674/-
4. 07.12.2017 RTGS 2,00,000/-
5. 13.02.2018 RTGS 2,50,000/-
6. 29.05.2018 RTGS 5,00,000/-
7. 30.08.2018 RTGS 2,75,000/-
8. 29.11.2018 RTGS 5,50,000/-
9. 27.02.2019 RTGS 2,01,518/-
10. 31.03.2019 Journal 6,707/-
11. 07.05.2019 RTGS 2,00,000/-
Total 36,33,453/-
33. Accordingly, these payments made after the relevant period for which the plaintiff has based its claim show that ledger Ex.PW1/6 against the liability of ledger account has also been paid and the same shows excess payment against proved liabilities. However, when Ex.PW1/6 is carefully examined, it can be seen that it opens up with the Debit entry of Rs.36,30,130/- as on 01.04.2017 for which the plaintiff has neither filed any corroborating evidence nor has made any oral Digitally signed by MUKESH MUKESH KUMAR submission explaining the aforesaid amount for the purpose of recovery.
KUMAR GUPTA GUPTA Date:
2025.04.19 18:04:39 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 34 of 38 Ld. Counsel for defendant has vehemently disputed not only the invoices, the delivery of the goods but also ledger entries being interpolated as incorrect. Even if the best case of the plaintiff is taken, the plaintiff has failed to explain the opening balance of Rs.36,30,130/- as on 01.04.2017. It is not discernible from the record as to whether the amount reflected as opening balance are covered by any of the invoices or was within the period of limitation and the plaintiff has failed to file the invoices or provide any other document in respect of the aforesaid opening balance of Rs.36,30,130/-. Ld. Counsel for plaintiff has vehemently tried to rely upon the cross-examination of DW1 to say that the witness has admitted the amount, however, it may be seen from the cross-examination of PW1 that the entire ledger is not produced before the court, which the plaintiff is duty bound to produce, there is nothing on record to prove by way of any cogent evidence the opening balance of Rs.36,30,130/- for the financial year 2017-18. It is a settled proposition of law that a litigant, who approaches the court, is duty bound to produce all the documents which are relevant to the litigation. Reliance placed on (1993) Supp. (3) S.C.r. 422 S.P. Chengalvaraya Naidu (Dead ) by L.Rs. Vs. Jagannath (Dead) by L.Rs. And Ors. Further, Ld. Counsel for defendant has vehemently argued that the even the evidence clearly shows that the plaintiff has selectively chosen to file ledger entries and has withheld the best evidence available with the plaintiff for which an adverse inference should be drawn against the plaintiff (MANU/DE/1742/2008 Harish Manusukhani Vs. Ashok Jain). If the cross-examination of PW1 is carefully seen, a suggestion has been given by the defendant regarding ledger account Ex.PW1/6 being forged, Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.04.19 18:04:45 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 35 of 38 +0530 fabricated and interpolated showing the wrong entries. The witness was clearly confronted with the fact that no ledger account prior to 01.04.2017 has been placed on record by the plaintiff for the alleged dues of Rs.36,30,130/- which was never due and payable by the defendant to the plaintiff. A suggestion was also given by the defendant that the aforesaid act was deliberate as invoice prior to 01.04.2017 has not been filed which would have demonstrated that an alleged sum of Rs.36,30,130/- was never due and payable to the plaintiff. It is an admitted fact that the plaintiff has not filed Balance sheet of Income Tax Return on record or even the GST R-1 form for the relevant year. These Balance Sheet and GST R-1 form would have been relevant to show that the aforesaid amount was actually due as the plaintiff was required to show the same for its Income Tax Return as amount due from the company including the plaintiff and would have shown that the defendant is in the list of sundry creditors. Ld. Counsel for plaintiff has even tried to counter the arguments and the evidence again relying upon the cross-
examination of DW1 thereby stating that the defendant has failed to file its own Statement of Account despite being admittedly maintained by the defendant company and duly audited by the auditor. However, it may be seen that the weakness of the defendant cannot become a weapon for the plaintiff in the sense that plaintiff is required to stand on his own legs for the purpose of proving its entitlement and the onus to prove the entitlement is upon the plaintiff which cannot be shifted on the defendant unless the plaintiff has discharged its onus by proving its entitlement leaving the same on for the defendant to disprove it. Merely because the Digitally MUKESH signed by MUKESH KUMAR plaintiff has not filed counter statement of account does not ipso facto KUMAR GUPTA GUPTA Date:
2025.04.19 18:04:52 +0530 CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 36 of 38 proves the entitlement of the plaintiff or the ledger entry more particularly, the opening balance of Rs.36,30,130/- which the plaintiff was required to prove by way of cogent evidence before fastening any liability being for the balance amount on the defendant. Reliance placed on Harish Manusukhani case (supra) which had also been upheld by the Hon'ble Supreme Court in Civil Appeal No.664/2012 (DOD:
03.09.2019) .
34. This leaves the court to limit the entitlement of the plaintiff on the basis of ledger entry Ex.PW1/6 being corroborated by appropriate evidence. As already discussed, 12 invoices raised, even if it is presumed that the delivery was duly made from time to time, will accumulate to a sum of Rs.19,33,842/- against which the defendant has paid Rs.36,33,453/- leaving no outstanding balance. Thus on the basis of aforesaid findings on the court and guaged on the yardstick of preponderance of probabilities, the court is of the considered opinion that the plaintiff has utterly failed to prove its entitlement of the suit amount against the defendant and since the principal amount has not been proved, the question of pre-suit interest does not arise at all. Reliance placed on M/s Laxmi Narayan Builders case (supra).
35. Thus, on the basis of the aforesaid discussion and findings of the court while issue no. 2 is decided against the defendant and in favour of Digitally the plaintiff, issue No.3 is decided against the plaintiff and in favour of signed by MUKESH MUKESH KUMAR KUMAR GUPTA defendant.
GUPTA Date:
2025.04.19
18:04:57
+0530
CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 37 of 38 Issue no.3: "Whether the Plaintiff is entitled to any interest on such amount and for what rate and for what period? OPP
36. Since the plaintiff has failed to prove its entitlement, the interest component on the principal amount does not arise. This issue is, decided accordingly.
(J) CONCLUSION:- Issue No. 4: "Relief"
37. In view of the aforesaid discussions and finding of this court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been failed to prove its case on the yardstick of preponderance of probabilities. Accordingly, the suit of the plaintiff is dismissed.
38. Parties to bear their own respective costs.
39. Decree sheet be drawn accordingly.
40. File be consigned to record room after due completion.Digitally signed
PRONOUNCED IN OPEN COURT . MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
On this 19th April, 2025 GUPTA 2025.04.19 18:05:22 +0530 (MUKESH KUMAR GUPTA) DISTRICT JUDGE (COMM. COURT)-07 CENTRAL/DELHI(pk) CS (Comm.) No. 1080/2023 M/s Dinesh Sanitary Store Vs. M/s BP Contracts Pvt. Ltd. Page no. 38 of 38