Delhi District Court
M/S Lakshay Traders Through Its Prop ... vs Subhash Chand Suneriya Prop Of Jaya Card ... on 6 February, 2024
IN THE COURT OF SH. AJAY PANDEY
DISTRICT JUDGE (COMMERCIAL COURT-10)
CENTRAL, TIS HAZARI COURTS, DELHI
CS Comm 2329/2022
Shri Ajay Kumar Mangal
Prop. Of M/s Lakshay Traders
At 907/115, First Floor,
Aggarsain Market, Chhota Chhipiwara
Chawari Bazar, Delhi-110006 Plaintiff
Vs
Shri Subhash Chand Suneriya
Prop. Of M/s Jaya Card Products
At B-42/B-1, Dilshad Colony,
Delhi-110096 Defendant
Date of Institution : 13.10.2022
Date of Arguments : 31.01.2024
Date of Judgment : 06.02.2024
JUDGMENT:-
SUIT FOR RECOVERY UNDER ORDER XXXVII CPC OF RS.57,05,792/- (RUPEES FIFTY SEVEN LAKHS FIVE THOUSAND SEVEN HUNDRED NINETY TWO ONLY) ALONGWITH PENDENTELITE AND FUTURE INTEREST @ 18% PER ANNUM
1. The present suit for recovery has been filed by the plaintiff stating inter-alia in the plaint that plaintiff is Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 1 of 36 CS Comm 2329/22 proprietorship concern. Plaintiff supplied goods to defendant vide various bills/invoices and as per the statement of account/ledger account maintained by plaintiff. A total sum of Rs.57,05,792/- (rupees fifty seven lakhs five thousand seven hundred and ninety two only) was due against the defendant which was admitted by defendant. In discharge of his part liability, defendant issued cheques amounting to Rs.8.00 lakhs each bearing no. 527527 and 527528 dated 14.03.2022 and 12.03.2022 respectively drawn on Punjab National Bank, Krishna Nagar Branch, Delhi-110051. The plaintiff presented the said cheques to his bank i.e. HDFC, Chawri Bazar, Delhi-110006 which were dishonored with remarks "EXCEEDS ARRANGEMENTS" vide return memo dated 16.03.2022. Plaintiff sent a legal notice dated 19.04.2022 to the defendant and also initiated proceedings under section 138 Negotiable Instrument Act against the defendant. The defendant did not pay the outstanding amount to plaintiff. Thereafter the plaintiff initiated pre-institution mediation proceedings as per previsions of Commercial Courts Act 2015. Defendant did not appear in the District Service Legal Authority, Central, Tis Hazari Courts and pre- institution mediation was disposed off as unsettled on 07.09.2022. It is also stated that cause of action for filing the present suit arose within the jurisdiction of PS-Hauz Qazi, Delhi. Hence, this court has jurisdiction to try and Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 2 of 36 CS Comm 2329/22 entertain the present suit. Hence, present for recovery of Rs.57,05,792/- with pendentelite and future interest @ 18% per annum.
2. Summons of suit were served upon the defendant.
Defendant filed written statement taking preliminary objections that plaintiff has suppressed material facts from the court and has concocted story without any cause of action. It is further stated that suit is barred by limitation as plaintiff is seeking recovery of invoices of the year 2017, 2018 and 2019 and that the suit is based on forged documents and forged statement of account. It is further stated that no cause of action has arisen within the jurisdiction of this court and suit is filed in the name of proprietorship firm which has no status in the eyes of law. It is also stated that mandatory provisions of Order VI rule 15A of The Commercial Courts Act and Order XI rule (1) (2) & (3) of The Commercial Courts Act has not been complied with.
3. After preliminary objections defendant has written preliminary submissions in the written statement stating inter-alia that the parties were in business relations and that each and every time when plaintiff supplied goods to defendant, signed undated cheques for security for payments of goods were handed over by defendant to plaintiff with the understanding that defendant will make cash payment for price of goods and the plaintiff would return the cheques to the defendant. It is further stated in Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 3 of 36 CS Comm 2329/22 the preliminary submissions that defendant made entire payment to the plaintiff as per bills/invoices within agreed time period and when he demanded return of his cheques plaintiff assured that he will not present the said cheques and will return the same after some time, however, the cheques were not returned and misused in the present case. It is further stated that goods supplied by plaintiff were not in accordance with the quality assurance given by the plaintiff. Defendant mentioned this fact to plaintiff. Plaintiff assured to supply quality products but failed to do so. It is also stated that statement of account filed by the plaintiff is not supported by any affidavit under section65-B of the Indian Evidence Act.
4. In para-wise reply to the contents of the plaint, business relationship between the parties is admitted. It is denied that any amount is due from the defendant to the plaintiff and it is stated that defendant made entire payment through online and cash regularly to the plaintiff as per bills/invoice within agreed time period. It is reiterated that when the defendant took goods from the plaintiff, he handed over signed security cheques to him without mentioning the date and amount in the cheques, these cheques have been misused by the plaintiff in the present case. Contents as regards issuance and service of legal notice dated 19.04.2022 are denied and it is stated that defendant never received any alleged notice. It is Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 4 of 36 CS Comm 2329/22 again reiterated that this court has no territorial jurisdiction to try and entertain the present suit and dismissal of suit is prayed.
5. Plaintiff filed replication to the written statement thereby reiterating the facts stated in the plaint and denying contrary allegations of the written statement.
6. Vide order dated 30.05.2023 following issues were framed by my learned predecessor :-
ISSUES:-
1. Whether the present suit is barred by limitation? Onus upon parties
2. Whether this Court has no territorial jurisdiction to entertain the present suit ? Onus upon parties
3. Whether the present suit is liable to be dismissed because same has been filed in the name of proprietorship firm ? Onus upon parties
4. Whether the present suit is liable to be dismissed for non-compliance of Order VI Rule 15A of the Commercial Courts Act, 2015 ? OPD
5. Whether the present suit is liable to be dismissed for non-compliance of Order XI Rule (1), (2) & (3) of the Commercial Courts Act, 2015 ? OPD
6. Whether plaintiff is entitled to recovery of sum of Rs.57,05,792/- from defendant ? OPP
7. Whether plaintiff is entitled to pendentelite and future interest, if so, at what rate ? OPP
8. Relief.
Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 5 of 36 CS Comm 2329/22
7. Proprietor of plaintiff company filed his affidavit in evidence and examined himself as PW-1. He relied upon following documents:-
1) Print out of GST certificate as Ex.PW1/1.
2) Copies of 95 invoices as Ex.PW1/2 I to Ex.PW1/2 XCV (OSR).
3) Ledger account for the period 01.04.2017 to 31.03.2022 as Ex.PW1/3 (colly).
4) Copy of legal notice as Ex.PW1/4 along with postal receipt as Ex.PW1/5 and returned envelopes as Ex.PW1/6.
5) Tracking report as Ex.PW1/7.
6) Certificate under section 65-B of Indian
Evidence Act as Ex.PW1/8.
8. Proprietor of defendant company also filed his affidavit in evidence and examined himself as DW-1. He relied upon the document which esd already exhibited during cross-examination of plaintiff as Ex.PW1/D1 and certificate under section 65-B of Indian Evidence Act qua Ex.PW1/D1.
9. Both the witnesses were cross-examined in detail by learned counsels of the opposite party.
10. Final arguments were addressed by learned counsels for both the parties. Both parties also filed their Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 6 of 36 CS Comm 2329/22 respective written submissions. Additional written submissions were also filed on behalf of plaintiff on 03.02.2024.
11. Learned counsel for plaintiff has submitted that plaintiff has proved its case by preponderance of probabilities as the 95 invoices through which goods were supplied have been proved as Ex.PW1/2 I to Ex.PW1/2 XCV along with ledger account of the defendant maintained by plaintiff. He also argued that suit is within limitation and cause of action has arisen within territorial jurisdiction of this court. He has further argued that defendant did not receive legal notice despite same being sent to his address. He has thus prayed for decree of recovery along with interest as prayed in the plaint.
12. Learned counsel for defendant has argued that plaintiff has concealed material facts and has not filed correct and true statement/ledger account and has manipulated the entries in his ledger. It is also argued by him that the defendant had given cheques to the plaintiff as security and the plaintiff presented the same without consent of the defendant. He also argued that suit is filed beyond the period of limitation because plaintiff is seeking recovery of goods supplied in the year 2017, 2018 and 2019 whereas the present suit has been filed in October 2022. He has submitted that transactions of sale of goods in the present case are covered under Article 14 Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 7 of 36 CS Comm 2329/22 and 15 of the Schedule attached to The Limitation Act 1963. He argued that as per Article 14 and 15 of the Schedule of The Limitation Act, the defendant is only liable to pay for the invoices w.e.f. 14.10.2019 to 06.03.2020 amounting to Rs.7,63,518/-. Learned counsel for defendant also argued that the suit is bad for non- compliance of Order VI rule 15A as the plaintiff has filed incorrect statement of truth. It is also argued that the plaintiff has not complied with Order 11 rule 6 CPC as applicable to The Commercial Courts Act. He also submitted that the certificate under section 65-B of the Indian Evidence Act, filed by plaintiff in support of invoices and ledger account is not in accordance with law. He further argued that plaintiff had sent the account statement of defendant maintained by him in his hand writing to the email ID of the defendant, which was put to the plaintiff on 04.08.2023 during his cross- examination as Ex.PW1/D1, plaintiff admitted this document, which clearly reflect that the defendant has made payment of Rs.61,49,488/- to the plaintiff. He argued that plaintiff has concealed material facts from this court by not disclosing the entries of the document Ex.PW1/D1 in his ledger and is therefore not entitled to any relief. Reliance in this respect is placed on the judgment passed by Hon'ble Supreme court in State of Orissa Vs Laxmi Narayan Dass 2023 SCC Online SC 825 to submit "A litigant can be non-suited in case he is Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 8 of 36 CS Comm 2329/22 found guilty of concealing material facts from the court or mis-stating the same".
13. Arguments considered. Record perused.
14. Issue wise findings of court are as under:-
Issue no.1. Whether the present suit is barred by limitation?Onus upon parties
15. Onus to prove this issue was upon the parties.
Learned counsel for plaintiff submitted that plaintiff was maintaining a mutual and current account of the defendant where there were reciprocal demands between the parties and therefore Article 1 of the Schedule attached to the Limitation Act would be applicable.
16. Per-contra learned counsel for defendant submitted that Article 14 and 15 of The Limiation Act would be applicable to the facts and circumstances of the present case.
17. For the purpose of convenience the relevant Articles of the Schedule to The Limitation Act are reproduced herein below:-
Article Description of Suit Period of Time from which limitation period begins to run 1 For the balance Three years The close of the due on a mutual, year in which open and current the last item account where admitted or Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 9 of 36 CS Comm 2329/22 there have been proved is reciprocal entered in the demands account; such between the year to be parties. computed as in the account.
14 For the price of Three years The date of the
goods sold and delivery of the
delivered, where goods.
no fixed period
of credit is
agreed upon.
15 For the price of Three years When the period
goods sold and of credit
delivery to be expires.
paid for after the
expiry of the
fixed period of
credit.
18. Nowhere in the plaint, it is mentioned that the plaintiff was maintaining mutual open and current account of the defendant. The invoices Ex.PW1/2 I to Ex.PW1/2 XCV contain the terms and conditions which are reproduced herein below:-
1. Goods once sold will not be taken back.
2. Interest @ 30% p.a. will be charged if the payment is not made with in the stipulated time.
3. Subject to 'Delhi' Jurisdiction only.
19. The first and the second condition of the invoices Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 10 of 36 CS Comm 2329/22 are sufficient to show that bill wise payment was to be made by the defendant and if the payment of a particular bill was not made within the stipulated time, the plaintiff could have charged interest @ 30% per annum. Hence, the plaintiff was not maintaining mutual open and current running account and article 1 of the Schedule to The Limitation Act would not be applicable. Rather Article 15 of the Schedule would be applicable where limitation period commences after expiry of the stipulated time for the payment.
20. It is however seen that even then the suit cannot be said to be barred by limitation because transactions between the parties started w.e.f. 12.06.2017. Thereafter, as per ledger account of the plaintiff Ex.PW1/3, payments through bank transfer were made on 09.08.2017, 14.08.2017 and 14.08.2017 for Rs.6.00 lakhs, 5.00 lakhs and 4.00 lakhs respectively. Thereafter, again part payment of Rs. 1.00 lakh through RTGS was made on 23.08.2017. The payments were made through bank transfer or otherwise continuously till 17.03.2018 totaling to an amount of Rs.59,57,286/- (Fifty nine lakhs fifty seven thousand two hundred eighty six only) in the financial year 2017-18.
21. Similarly, payments were being continuously made in the financial year 2018-19 till 11.03.2019 totalling to Rs.64,79,000/-. Again in the financial year 2019-20 payments of Rs.25,28,000/- were made. In the Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 11 of 36 CS Comm 2329/22 financial year 2020-21 payment of Rs.1.00 lakh was made on 11.01.2021. In the next financial year ie. 2021- 22 again the payments of Rs.17.00 lakhs were made through bank transfer. The last such payment was made on 15.03.2022. None of the payment reflected in the ledger account of the plaintiff has been specifically appropriated against any particular/bill invoice. In such circumstance this court is of the opinion that plaintiff is entitled for benefit of section 19 of The Limitation Act 1963 which provides as follows:-
19. Effect of payment on account of debt or of interest on legacy Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
PROVIDED that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Explanation : For the purposes of this section,--
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;
Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 12 of 36 CS Comm 2329/22
(b) "debt"does not include money payable under a decree or order of a Court.
22. In the present case the defendant was making continuous part payments on account of debt accrued for supply of goods and therefore a fresh period of limitation can be computed when any of such payment was made. The present suit filed by the plaintiff in October 2022 is therefore within the limitation period. This issue is accordingly decided in favour of plaintiff.
Issue no.2: Whether this Court has no territorial jurisdiction to entertain the present suit ? Onus upon parties.
23. Onus to prove this issue was upon the parties.
Learned counsel for defendant submitted that no cause of action arose within the jurisdiction of this court. Learned counsel for plaintiff has however drawn attention of the court to the cross-examination of PW-1 wherein the witness stated "Defendant used to place orders orally sometimes on phone and sometimes he used to come to our office. I cannot tell order of which of the invoices was given on phone and which by visiting our office. No written purchase order was given by the defendant." There is no suggestion to the witness that the orders were not given on telephone or by visiting the office of the plaintiff which is situated within the jurisdiction of this Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 13 of 36 CS Comm 2329/22 court. Hence, it can be safely said that part cause of action has arisen within the jurisdiction of this court. As per section 20(c ) of The Code of Civil Procedure 1908 a suit for recovery can be filed where the cause of action, wholly or in part, arises. From the testimony of the plaintiff it appears that part cause of action i.e. placing the orders by the defendant and supply of goods by the plaintiff, has arisen within the jurisdiction of this court. Hence, this court has territorial jurisdiction to try and entertain the present suit. This issue is accordingly decided in favour of plaintiff.
Issue no.3:- Whether the present suit is liable to be dismissed because same has been filed in the name of proprietorship firm ? Onus upon parties
24. Vide order dated 21.12.2023 an application of the plaintiff for change of description of plaintiff was allowed and Sh. Ajay Kumar Mangal, proprietor of Lakshay Traders was allowed to be substituted as plaintiff, in place of proprietorship concern M/s Lakshay Traders subject to cost of Rs.1000/- in favour of defendant. Cost was received by learned counsel for defendant. Learned Sh. Manish Dewan, during the course of arguments fairly submitted that he do not press this issue in view of the order dated 21.12.2023. This issue is accordingly decided in favour of plaintiff.
Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 14 of 36 CS Comm 2329/22 Issue no.4. Whether the present suit is liable to be dismissed for non-compliance of Order VI Rule 15A of the Commercial Courts Act, 2015 ? OPD AND Issue no.5 :- Whether the present suit is liable to be dismissed for non-compliance of Order XI Rule (1), (2) & (3) of the Commercial Courts Act, 2015 ? OPD
25. Learned Sh. Manish has drawn attention of this court to para no.6 of the statement of truth in support of plaint wherein it is stated "I say that the above mentioned pleadings comprises of a total of 188 pages each of which has been signed by me." He argued that the plaint contains 10 pages only. Hence, the plaintiff has given wrong statement in his statement of truth that the pleadings comprised of 188 pages.
26. Court is in agreement with the submissions of learned counsel for plaintiff that the plaintiff cannot be non-suited on this technical mistake. It is seen that total pages in plaint and documents, taken together are 188. Possibly plaintiff counted each of such page, whether it be of the plaint or of the document, every page has been signed by plaintiff. Possibly the plaintiff counted even the documents in his pleadings. The parties have contested the case on merits and the suit cannot be dismissed at this stage for non-compliance of this procedural formality.
Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 15 of 36 CS Comm 2329/22
27. Similarly, both the parties have contested their respective cases on merits and have brought forward the relevant documents relied upon by them. Procedural formality under order XI rule 1, 2 and 3 about the declaration or disclosure of the documents should not go to the root of case and in humble opinion of this court the suit cannot be dismissed for any defect in declaration about disclosure of the documents. Both these issues are accordingly decided against the defendant.
Issue no. 6:- Whether plaintiff is entitled to recovery of sum of Rs.57,05,792/- from defendant ? OPP
28. Suit of the plaintiff is based upon the invoices, through which goods were supplied. The plaintiff has also relied upon the statement of account Ex.PW1/3. The statement of account reflect that substantial amount of Rs.59,57,286/- is shown to have been received by the plaintiff from the defendant in the financial year 2017-
18. Similarly, the amount of Rs.64,79,000/-, Rs.25,28,000/-, Rs.1.00 lakh, Rs.17.00 lakhs is shown to have been received from defendant in the financial years 2018-19, 2019-20, 2020-21 and 2021-22 respectively as per ledger account of the plaintiff. Specific mention about the amount received through RTGS or through bank transfer has been made in the ledger account. Apart for the entries through RTGS or through bank, there are Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 16 of 36 CS Comm 2329/22 number of other entries through which the amount is received which prima facie suggest that huge payments were received through cash on various dates. In the course of arguments learned counsel for plaintiff initially submitted that no payment was made by the defendant through cash. When attention of learned counsel for plaintiff was drawn to the statement of account Ex.PW1/3, he could not give any satisfactory explanation as to why there is no specific mention in many of the entries about the mode of receipt of payment. The defendant has specifically stated that he used to make cash payment to the plaintiff. The account statement Ex.PW1/3 specifically mentions the mode of payment in the credit entries in favour of defendant, whenever the same was received through bank/RTGS, but do not mention about mode of payment in many of the credit entires, prima facie suggest that substantial amount was received from the defendant by plaintiff in cash.
29. Learned counsel for defendant submitted that many such cash receipts were not entered into the ledger account. He has submitted that the plaintiff had sent his handwritten statement of account through mail to the defendant which is admitted by the plaintiff during his cross-examination as Ex.PW1/D1.
30. Learned counsel for plaintiff, on the other hand, has argued that plaintiff has not admitted any such Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 17 of 36 CS Comm 2329/22 document and the document sought to be relied upon by the defendant is forged and fabricated, for which the defendant has been given sufficient suggestions in his cross-examination.
31. The court would examine whether the document Ex.PW1/D1 is relevant or can be relied upon for the purpose of deciding the material issue(s) in the present case.
32. This document Ex.PW1/D1 was filed by the defendant along with his written statement supported by a certificate under section 65-B India Evidence Act 1872 and was brought on record during cross-examination of plaintiff. Relevant part of cross-examination of plaintiff recorded on page no. 2 and 3 of his cross-examination is extracted as follows:-
At this stage, witness is shown a copy of handwritten paper containing various entries of money.
Q. Can you identify this document? Ans. This document is not related with me and I do not know about the same.
Q. I put it to you that handwriting on this document is yours?
Ans. It appears to be in my handwriting but I do not remember for which purpose and when said document was prepared.
Said document is now Ex. PW1/D1. It is wrong to suggest that the said document is regarding my dealings Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 18 of 36 CS Comm 2329/22 with defendant. It is further wrong to suggest that I have sent this document to the defendant through e-mail. It is wrong to suggest that as per the said document, the defendant has paid Rs. 61,49,488/- till 26.10.2019 (Vol. Said document does not pertain to my transaction with defendant)./it is wrong to suggest that said document is the rough unofficial accounts (kutcha hisab) of my dealing with defendant as I used to do dealings unofficially to save income tax and other taxes. It is correct that the entry of payment shown in Ex. PW1/D1 i.e. dated 11.2.2019 for Rs. 1,50,000/-, dated 13.2.2019 for Rs. 2,00,000/-, dated 28.2.2019 for Rs. 2,00,000/-, dated 11.3.2019 for Rs. 3,00,000/-, dated 10.5.2019 for Rs. 4.00,000/-, dated 28.5.2019 for Rs. 3,00,000/-, 28.6.2019 for Rs. 1,00,000/-, dated 8.8.2019 for Rs. 2,00,000/-, dated 13.8.2019 for Rs. 2,00,000/-, dated 17.8.2019 for Rs. 90,000/-, dated 13.9.2019 for Rs.
1,00,000/- are also reflected in ledger Ex. PW1/3 (Colly.) filed by me? It is wrong to suggest that tallying of these entries shows that this document Ex. PW1/D1 is the accounts statement of my dealing with defendant.
It is further wrong to suggest that I have deliberately not entered in my ledger Ex. PW1/3 entries of payment dated 13.1.2019 for Rs. 2,32,500/-, dated 4.2.2019 for Rs. 1,99,000/-, dated 15.2.2019 for Rs. 4,50,000/-, dated 21.2.2019 for Rs. 2,00,000/-, dated 18.4.2019 for Rs. 2,70,000/, dated 30.4.2019 for Rs. Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 19 of 36 CS Comm 2329/22 2,50,000/-, dated 1.5.2019 for Rs. 3,01,500/-, dated 15.5.2019 for Rs. 3,00,000/-, dated 24.5.2019 for Rs. 2,61,547/, dated 14.8.2019 for Rs. 5,00,000/-, dated 26.10.2019 for Rs. 9,44,941/- mentioned in the document Ex. PW1/D1 was the amount which was paid to me by the defendant.
33. Perusal of above extract of the cross-examination is sufficient to show that when PW-1 stated that the document was apparently in his handwriting but he did not remember for which purpose and when the said documents was prepared, my learned predecessor had exhibited the said document as Ex.PW1/D1. In the answer to the specific question that the document was in his handwriting, plaintiff did not deny the same but only stated that he did not remember for which purpose and when the said document was prepared. Perusal of the document prima facie reflects that various entries of the supplies have been made on the left side of the document apparently in the handwriting of the plaintiff as admitted by him. On the right side of the document entries of the receipt of payment have been made. There are 22 entries in total about the receipt of payments. 11 of such entries are corroborated and are duly entered in the ledger/statement of account Ex.PW1/3 filed by the plaintiff. The plaintiff has thus given due credit to the defendant of the 11 entries mentioned in Ex.PW1/D1, Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 20 of 36 CS Comm 2329/22 but has not given the credit for rest of the 11 entries of payments. In his cross-examination plaintiff admitted that the entries of payment shown in Ex.PW1/D1 i.e. dated 11.2.2019 for Rs. 1,50,000/-, dated 13.2.2019 for Rs. 2,00,000/-, dated 28.2.2019 for Rs. 2,00,000/-, dated 11.3.2019 for Rs. 3,00,000/-, dated 10.5.2019 for Rs. 4.00,000/-, dated 28.5.2019 for Rs. 3,00,000/-, 28.6.2019 for Rs. 1,00,000/-, dated 8.8.2019 for Rs. 2,00,000/-, dated 13.8.2019 for Rs. 2,00,000/-, dated 17.8.2019 for Rs. 90,000/-, dated 13.9.2019 for Rs. 1,00,000/-" are also reflected in ledger Ex.PW1/3 filed by him. But the entries of the payment dated 13.1.2019 for Rs. 2,32,500/-, dated 4.2.2019 for Rs. 1,99,000/-, dated 15.2.2019 for Rs. 4,50,000/-, dated 21.2.2019 for Rs. 2,00,000/-, dated 18.4.2019 for Rs. 2,70,000/, dated 30.4.2019 for Rs. 2,50,000/-, dated 1.5.2019 for Rs. 3,01,500/-, dated 15.5.2019 for Rs. 3,00,000/-, dated 24.5.2019 for Rs. 2,61,547/, dated 14.8.2019 for Rs. 5,00,000/-, dated 26.10.2019 for Rs. 9,44,941/- in Ex.PW1/D1 are not shown in the ledger account Ex.PW1/3.
34. Ex.PW1/D1, is apparently in the handwriting of plaintiff. Plaintiff has failed to explain why and when he executed the said document. He had given an evasive reply in the cross-examination that he did not remember for which purpose the said document was prepared. The said document is coming on record from the hand of the Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 21 of 36 CS Comm 2329/22 defendant with a plea that the plaintiff has given a receipt of the payments by the defendant. Half of the payments mentioned in the document are duly corroborated in the statement of account filed by plainitff. Remaining entries are not reflected in his statement of account. Preponderance of probabilities, heavily lies in favour of defendant and against the plaintiff that the plaintiff had received cash payments from the defendant for which a rough statement of account Ex.PW1/D1, in the handwriting of the plaintiff was provided to the defendant, but many such cash entries were not entered in the computerized ledger account Ex.PW1/3. Total amount of the entries received in cash, which are not mentioned in the statement of account Ex.PW1/3 comes out to be Rs.39,09,482/-. The present suit has been filed for recovery of an amount of Rs.57,05,792/-. The plaintiff thus appears to have concealed material facts from the court and further appears to have made false entries in the statement of account Ex.PW1/3. When the document Ex.PW1/D1 is admittedly in the handwriting of the plaintiff, it cannot be said that the defendant has made any subsequent entries in the document after preparation of the said document by plaintiff. All receipts and other entires have been made in Ex.PW1/D1 in date-wise chronological order in a coherent manner maintaining almost similar distance between the entries. Half of the Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 22 of 36 CS Comm 2329/22 entries are picked chosen and mentioned in Ex.PW1/3. Remaining entries have been left from mentioning in Ex.PW1/3 without any reason or justification. Hence, preponderance of probabilities heavily lies in favour of defendant that plaintiff has concealed material facts from the court and has not reflected or credited many cash payments received from the defendant.
35. In view of above observations of the court, defective certificate under section 65-B of Indian Evidence Act 1872 filed by plaintiff also becomes relevant. The contents of the certificate are reproduced herein below:-
It is certified that I, Ajay Kumar Mangal, Proprietor of M/s. Lakshay Traders, at 907/115, First Floor, Aggarsain Market, Chhota Chhipiwar, Chawari Bazar, Delhi-110006, having a technical knowledge of computer operating and have converted the computer data by downloading the statement of account, invoices, and bills, GST Certificate etc. have been down loaded from the computer of my office. The contents of the same are true reproduction of the original to the best of my knowledge and belief. My office computer is virus free in all corner and no any body theft/modification of data.
36. It is rightly submitted by learned counsel for defendant that this certificate under section 65-B of The Indian Evidence Act 1872 as filed by the plaintiff, do not satisfy the requirements of law. Section 65-B of the Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 23 of 36 CS Comm 2329/22 Indian Evidence Act 1872 provides as under :-
65B. Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: --
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 24 of 36 CS Comm 2329/22 regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 25 of 36 CS Comm 2329/22 all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, --
Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 26 of 36 CS Comm 2329/22
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
37. Nowhere in his certificate under section 65-B Indian Evidence Act, the plaintiff has mentioned that he has fed the information in his computer in the ordinary course of his business activities. Contradictions in Ex.PW1/3 and Ex.PW1/D1 reflect that the relevant data was not regularly fed in ordinary course of business Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 27 of 36 CS Comm 2329/22 transactions with defendant. Date of downloading the data has not been mentioned. In this respect Order XI rule 6 Code of Civil Procedure, as applicable to the Commercial Courts Act, also comes to play which is reproduced herein below:-
6. Electronic records.
(1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000(21 of 2000)), furnishing of printouts shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify--
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 28 of 36 CS Comm 2329/22 custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record.
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings.
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 29 of 36 CS Comm 2329/22 electronic record.
38. Particulars required under sub-rule 3 of rule 6 of Order XI have not been mentioned in the affidavit under section 65-B of the Indian Evidence Act filed by plaintiff. There is no separate declaration or affidavit on oath filed by plaintiff under order XI rule 6 CPC. Hence, the electronic record i.e. the statement of account Ex.PW1/3 and the invoices Ex.PW1/2I to Ex.PW1/2XCV cannot be given much credence moreso in view of the apparent contradictions with the handwritten document of the plaintiff Ex.PW1/D1.
39. In the facts and circumstances, it appears to be rightly submitted by learned counsel for defendant that plaintiff has concealed material facts from the court and has falsified his account statement to take undue advantage against the defendant. It is rightly submitted by him that such a litigant who do not hesitate to pollute pious stream of justice is not entitled to seek any relief from the court.
40. Reliance in this respect is placed upon judgment in the case of Abhyudya Sanstha Vs Union of India (2011) 6 SCC 145 wherein it was held "18. In our view, the appellants deserve to be non suited because they have not approached the Court with clean hands. The plea of inadvertent mistake Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 30 of 36 CS Comm 2329/22 put forward by the learned senior counsel for the appellants and their submission that the Court may take lenient view and order regularisation of the admissions already made sounds attractive but does not merit acceptance. Each of the appellants consciously made a statement that it had been granted recognition by the NCTE, which necessarily implies that recognition was granted in terms of Section 14 of the Act read with Regulations 7 and 8 of the 2007 Regulations. Those managing the affairs of the appellants do not belong to the category of innocent, illiterate/uneducated persons, who are not conversant with the relevant statutory provisions and the court process. The very fact that each of the appellants had submitted application in terms of Regulation 7 and made itself available for inspection by the team constituted by WRC, Bhopal shows that they were fully aware of the fact that they can get recognition only after fulfilling the conditions specified in the Act and the Regulations and that WRC, Bhopal had Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 31 of 36 CS Comm 2329/22 not granted recognition to them.
Notwithstanding this, they made bold statement that they had been granted recognition by the competent authority and thereby succeeded in persuading this Court to entertain the special leave petitions and pass interim orders. The minimum, which can be said about the appellants is that they have not approached the Court with clean hands and succeeded in polluting the stream of justice by making patently false statement. Therefore, they are not entitled to relief under Article 136 of the Constitution. This view finds support from plethora of precedents.
41. In the case of Hari Narain Vs Badri Das, AIR 1963 SC 1558, it was held :-
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 32 of 36 CS Comm 2329/22 leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterises as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
42. In the case of Dalip Singh Vs State of Uttar Pradesh (2010) 2 SCC 114, it was held :-
"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (non- violence). Mahavir, Gautam Buddha and Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 33 of 36 CS Comm 2329/22 Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-
Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 34 of 36 CS Comm 2329/22 pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
43. In the case of Chandra Shashi Vs Anil Kumar verma (1995) 1 SCC 421, it was held :-
"1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 35 of 36 CS Comm 2329/22 justice.
44. Plaintiff being guilty of the concealment of material facts from the court and further manipulating his statement of account, is therefore not entitled to any relief through this court. This issue is accordingly decided against the plaintiff and it is held that plaintiff is not entitled to recovery of any amount from the defendant.
Issue no.7:- Whether plaintiff is entitled to pendentelite and future interest, if so, at what rate ? OPP
45. In view of decision on issue no.6, this issue is also decided against the plaintiff.
Relief :-
46. In view of the aforesaid discussion, the suit filed by the plaintiff is dismissed with cost in favour of defendant.
47. Decree sheet be prepared accordingly.
48. File be consigned to record room.
Digitally signedAnnounced in the open court AJAY
by AJAY
PANDEY
Date:
on the 06th day of February, 2024 PANDEY 2024.02.06
14:35:06
+0530
(Ajay Pandey)
District Judge
(Commercial Court-10)
Central, Tis Hazari Courts, Delhi.
Shri Ajay Kumar Mangal Vs Shri Subhash Chand Suneriya Page no. 36 of 36
CS Comm 2329/22