Delhi District Court
Sh. Rais Ahmed Khan vs M/S Continental Equipment (India) Pvt. ... on 24 January, 2022
1
IN THE COURT OF SH. NIKHIL CHOPRA, ADDL. DISTRICT JUDGE, ROOM NO.
606, SAKET COURTS, SOUTH DISTRICT,
NEW DELHI
In the matter of
Suit No.293/2018
Filing No. 956/2018
CNR No. DLST010020812018
Sh. Rais Ahmed Khan
S/o Sh. Abdul Nayheem Khan
Proprietor of
M/s Hindustan Cooling Corporation
F19/2, Shaheen Bagh
Abdul Fazal EnclaveII
Jamia Nagar
New Delhi110 025
................Plaintiff
Versus
M/s Continental Equipment (India) Pvt. Ltd.
Regd. Office
D116, Panchsheel Enclave,
New Delhi110017
.............Defendant
Date of Institution : 24.03.2018
Date of reserving the judgment : 22.01.2022
Date of pronouncement : 24.01.2022
Decision : Allowed
SUIT FOR RECOVERY OF RS. 3,69,938.11P (RUPEES THREE LACS
SIXTY NINE THOUSAND NINE HUNDRED THIRTY EIGHT AND PAISA
ELEVEN ONLY)
Suit No.293/2018
Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
2
1.Judgment disposes of a suit for recovery of money filed by the plaintiff claiming unpaid dues.
2. Broad outlines the case of the plaintiff as under:-
i. Plaintiff is the proprietor of M/s Hindustan Cooling Corporation, which deals into repairs/service and installation of all types of airconditioners of other such equipments/machinery. Defendant, a corporate entity, operating from B-66, Okhla Industrial Area, Phase 1, New Delhi at the relevant time, have shifted its operations to Udyog Vihar, Gurgaon sometime in the year 2013.
ii. The defendant approached the plaintiff, sometime in the year 1998/1999, for his services regarding installation of cold rooms and kitchen freezer equipments, after sale services/job work relating to various clients in Delhi, Gurgaon, Faridabad, Agra, Bhuvaneshwar, apart from other places. The plaintiff has worked for defendant from time to time. The defendant made on Account payments/part payments against the bill/invoices so raised by the plaintiff. The said arrangement worked will till the year 2013, but thereafter the defendant started resorting to delaying tactics in releasing the payments. In November, 2014, the defendant have wrongfully deducted 35% amount from various bills without any basis and unilaterally.
iii. The plaintiff was sought to confirm balance / Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.3
outstanding amount of Rs.2,57,348.92 as on 31.03.2015 even after the deduction of 35% followed by email date 04.11.2015. Plaintiff continued working for the defendant, till the year 2016. The defendant had itself supplied true copy of ledger account maintained by defendant, and an amount of Rs.12,650/- was credited on 27.12.2020, against bill No. 428 dated 01.10.2016 and the last payment of Rs.14,935/- was made by the defendant vide cheque No. 0930396, dated 19.03.2016. A sum of Rs.3,00,312.11/- was found to be payable as on 27.12.2016 as per the ledger the defendant provided e-
mail dated 24.03.2017. A bill for Rs.3,540/- was raised in respect of work of Gymkhana Club, New Delhi, vide bill No. 33 dated 04.11.2017, making the total outstanding amount as Rs.2,03,852.11/-. A legal notice dated 29.01.2018 was served but no payments were made. iv. Plaintiff had filed the present suit, thereafter, claiming the sum of Rs.3,69,938.11/- towards principal and interest, while also claiming further interests and costs.
3. The defendant filed written statement, raised various objections as also denied the averments of the Plaint, detailed as under:-
i. The defendant, objected to the suit on the ground of lack of territorial jurisdiction; lack of any cause of action; the plaint being not signed and verified in accordance with law; concealment of facts; as well as plaint being Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.4
liable to be rejected under Order 7 Rule 11 CPC, on account of absence of cause of action.
ii. The defendant, in challenged the territorial jurisdiction on the ground that the office at Panchseel Enclave, New Delhi, is only a registered office which is being operated only for the compliance of requirements of ROC, and no business activity is being conducted in Delhi. It is stated that all the business as well as office work is being done at Gurgaon. The defendant had further stated that no transaction had taken place at Delhi nor was there any meeting of negotiation at Delhi and as such this court does not have territorial jurisdiction. The suit is further challenged on ground that the plaintiff, in fact, is a partnership firm of the plaintiff and his brother, and the same being an unregistered partnership firm, cannot maintain any suit. It is stated that the plaintiff and his brother have been jointly conducting the business of M/s Hindustan Cooling Cooperation. It is stated that the plaintiff has deliberately and dishonestly concealed documents of ownership of M/s Hindustan Cooling Corporation, because the same is an unregistered partnership firm and as such the suit is barred under Section 69 of the Indian Partnership Act, 1932. iii. On merits, the defendant denied any dealings with the plaintiff. The defendant has denied making any part payments, any balance confirmation or even any Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.5
requests/demands for payment having made to the defendant. The defendant has also categorically denied the supply of any ledger account or any liability to pay any amount to plaintiff, on any account, whatsoever. The defendant has further claimed the suit is based on forged and fabricated documents bills, e-mails, letters, account statement and has further denied the service of any notice.
4. The plaintiff filed replication, reiterated its stand while denying the allegations made against the plaintiff, in the written statement.
5. Following issues were framed on 11.07.2018:-
(i) Whether this court has no territorial jurisdiction to entertain and try the present suit? OPD
(ii) Whether the plaintiff has not approached this court with clean hands? OPD
(iii) Whether the plaintiff is entitled to recovery of Rs.3,69,938.11/- as claimed? OPP
(iv) Whether the plaintiff is entitled to interest on the aforesaid amount? If so, at what rate and for which period? OPP
(v) Relief.
6. Plaintiff examined himself as PW1 and tendered his affidavit on the lines of his pleadings. He also tendered the following Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
6documents:-
1. Certificate of Provisional Registration of M/s Hindustan Cooling Corporation as Ex.PW1/1;
2. Certificate dated 06.07.2018, issued by Banker of the Plaintiff as Ex.PW1/2;
3. Letter dated 05.09.2015 of defendant along with format as Ex.PW1/3 & Ex.PW1/4;
4. Email dated 04.09.2015 sent through email to continental India Company as Ex.PW1/5;
5. Attachments to email dated 04.09.2015 as Ex.PW1/6 and Ex.PW1/7;
6. Speed post envelop of M/s Continental Equipments Ltd. addressed to plaintiff as Ex.PW1/8;
7. Email dated 24.03.2017 from [email protected] to [email protected] with attachments as Ex.PW1/9;
8. Statement of account for the period 01.04.2013 to 23.03.2017 as Ex.PW1/10;
9. Various Bills raised by plaintiff in the name of defendant company as Ex.PW1/11 to Ex.PW1/18;
10. Copies of Bills as Mark PW1/19 to Mark PW1/22;
11. Various Bills raised by plaintiff in the name of defendant company as Ex.PW1/23 to Ex.PW1/25;
12. Form 26AS in respect of tax deducted on source, including by the defendant for the financial year 2015 2016 as Ex.PW1/26;
13. Form 26AS in respect of tax deducted at source including by defendant for financial year 20142015 as Ex.PW1/27;
14. ITR of plaintiff for Assessment Year 2016 - 2017 as Ex.PW1/28;Suit No.293/2018
Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
715. ITR of plaintiff for the Assessment Year 20172018 as Ex.PW1/29;
16. Legal notice dated 20.01.2018 as Ex.PW1/30;
17. Postal receipts as Ex.PW1/31;
18. Tracking Reports as Ex.PW1/32;
19. Service Statement as Ex.PW1/33 to Ex.PW1/35;
20. Bills issued by plaintiff against the defendant as Ex.PW1/36 and Ex.PW1/38;
21. Service statement as Ex.PW1/39;
22. Bills issued by plaintiff against the defendant as Ex.PW1/40;
23. Service statement as Ex.PW1/41 and Ex.PW1/42;
24. Bills issued by plaintiff against the defendant as Ex.PW1/43 and Ex.PW1/44;
25. Service statement as Ex.PW1/45 and Ex.PW1/46;
26. Bills issued by plaintiff against the defendant as Ex.PW1/47 to Ex.PW1/49;
27. Service statement as Ex.PW1/50;
28. Bills issued by plaintiff against the defendant as Ex.PW1/51 and Ex.PW1/52;
29. Service statement as Ex.PW1/53 and Ex.PW1/54;
30. Bills issued by plaintiff against the defendant as Ex.PW1/55;
31. Service statement as Ex.PW1/56;
32. Certificate under Section 65B of Evidence Act as Ex.PW1/57.
7. In his cross examination, PW1 stated that he has an account with Punjab National Bank since 2012/2013. He stated that the firm namely Hindustan Cooling Cooperation is in operation since 1997/1998. He denied that he himself and his brother worked jointly, or conducted the business as partners upto 31.03.2017, or Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
8that he had deliberately concealed ownership documents.
8. He stated that he visited the Gurgaon office of defendant in 2012 as well as in 2013-2014. He denied that no business was conducted by the defendant from its Okhla Office after 2013. He also denied that the defendant had never hired any air-conditioners from him at any point of time. He stated that no business was conducted by the defendant from the Nangloi address and Panchseel Enclave Delhi. He denied that no transaction/meeting/negotiation took place between him and defendant in New Delhi after 2013.
9. He stated that he was approached by Sh. Shankar Prasad, an employee of the defendant in 1998-1999. Since then there was no agreement executed between him and defendant terms were agreed orally. He stated that he never demanded/insisted any advance payment at any stage for the work. He also denied that he approached the defendant in 1998 for getting references of the clients of the defendant. He stated that he used to raise bills after the completion of work. He denied that there was no arrangement of agreement between him and defendant till 2013.
10. He stated, despite pending dues, he was working in hope of recovering of dues along with fresh payments. He stated he has not prepared the ledgers of his clients. He also stated that he has never filed any sales tax return, however, he was filing his ITR since 1998 and that he has not shown the defendant as his debtor. He denied that bills filed by him are forged and fabricated. He stated Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
9that he has worked in Gymkhana Club on the coldroom which was provided by the defendant however he denied that he had not done any repair work in Gymkhana Club.
11. He denied that the defendant never made any part payment.
He also denied that the defendant did not issue any letter dated 05.09.2015 and never sought balance confirmation from him. He also denied that he never requested or demanded any payment from defendant and was never supplied with any ledger account either by e-mail on 24.03.2017 or otherwise by the defendant. He denied the defendant has never admitted any dues towards him and the notice dated 29.01.2018 was never served upon the defendant.
12. He denied that defendant is not liable to pay Rs.3,03,852.11/- or any amount/interest to him on any account or count. He also denied putting up a false case and false deposits to interact money illegally from the defendant.
13. Shri Mahender Sahni, Commercial Executive and Authorized Representative was examined as DW1, who filed his affidavit on the lines of pleadings of the defendant and also tendered board resolution dated 10.01.2017 as Ex.DW1/1.
14. DW1 stated that he joined the defendant's company as Accounts Officer on 07.07.1997 at B-66, Okhla Industrial Area, Phase I, New Delhi. The office of defendant's company remained at Okhla upto 2012-2013, afterwards it shifted to Gurgaon. He stated that the defendant's company deals in fabricated kitchen Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
10equipments. The defendant used to supply equipments to 5 star hotels like ITC Limited, Lalit Hotel, Oberoi Hotel Etc.
15. He denied his designation as Accountant in the year 2000 or having direct dealings with defendant in the year 2000. He denied Ex.DW1/4 bearing his signatures. He states Mr. Ramesh Batra, Accounts Manager, is still working with defendant and operates his e-mail account on its own. He stated that there no confirmation is present stating Ex.PW1/9 was sent by Ramesh Batra. He also denied liability to pay any amount to the plaintiff and claimed e- mail dated 24.03.2017 and letter dated 05.09.2015 are genuine. He stated that defendant did not receive any legal notice from plaintiff. He stated that registered office of defendant was at Panchsheel Enclave and not Okhla and no person is employed at Registered Office. He denied that the defendant had worked as per the order placed by the defendant from time to time.
16. I have heard Ld. Counsel for the parties, and have also gone through the written submissions and judgments cited/relied upon.
17. Main contentions of the Ld. Counsel for the plaintiff are as under:-
a) Plaintiff had, on the order placed by the defendant from time to time, provided technical services of repairing/installation and supplies of technical parts, to the various clients of the defendant till the year 2015/2016.
b) Plaintiff had been raising bills against the job work assigned to him vide various services statements and the defendant had been making payments from time to Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.11
time.
c) Ever since 2013, the defendant started delaying the payments and making undue deductions, however the plaintiff continued to work till 2015/2016.
d) The defendant vide its own letter dated 05.09.2015 --
Ex.PW1/3, admitted liability of Rs.2,57,348.92 as on 31.03.2015, which letter along with a format - Ex.PW1/4, was sent to plaintiff in cover - Ex.PW1/8.
e) Plaintiff had also sent the said letters as attachment vide his mil dated 04.11.2015 - Ex.PW1/5 to Ex.PW1/7, but the defendant did not clear the dues.
f) Vide e-mail dated 24.03.2017 - Ex.PW1/9. The defendant through his Manager Finance - Sh. Ramesh Batra, had sent the statement of Account -
Ex.PW1/10, as an attachment to the said mail.
g) The statement of Accounts - Ex.PW1/10, not only proves the extent of work done by the plaintiff, but also the fact that various bills were raised from time to time and a balance of Rs.30032.11, was admittedly due as on 23.03.2017, after the last credit of 27.12.2016 of Rs.12650/-.
h) Defendant had been deducting TDS, which has also been reflected in Form 26AS - Ex.PW1/26 and Ex.PW1/27.
i) Defendant did not pay the amount, admittedly recorded as due, in their own accounts books, and despite service of legal notice, did not make the payment.
j) Defendant has wrongfully denied any business with plaintiff, which is proved as false by various Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
12documents of the defendant itself.
k) The plaintiff has also proved the work done in South Delhi, so as to prove jurisdiction and the office of the defendant is also situated at Pachsheel Enclave.
l) Defendant has not examined Sh. Ramesh Batra, Author of the mail dated 24.03.2017, so as to deny the mail/attachment, or to deny any of the document placed by the plaintiff.
m) The evidence of DW1, is not trustworthy as he has denied his own signatures over a letter issued earlier, as well has denied the records of defendant company, without providing any records himself, so as to counter the records placed.
n) Plaintiff has duly proved the certificate under Section 65B of the Evidence Act, in relation with the electronic record placed by the plaintiff and no evidence contrary to the same has been placed by the defendant. Ld. Counsel for the plaintiff has also relied upon - "Sonu Alias Amar Versus State of Haryana" - 2017(8) SCC570 in this respect.
18. Main contentions of Ld. Counsel for the defendant are as under:-
a) The suit itself is misconceived as the plaintiff has admitted that he has not been maintaining any accounts / ledger and has also not been able to prove rendering of any services to the defendant.
b) The plaintiff has also wrongfully attempted to claim money against hiring of air conditioning by defendant, but neither any such pleadings exist on record, nor does the said ground contention survives in view of his own admission as to the fact that he has not placed on Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.13
record, any document in this respect.
c) Plaintiff is to stand on his own legs and cannot be heard to say that he is entitled to amount of some bills, alleged to have been raised on account of some services to third parties, alleged to be clients of the defendant.
d) No evidence has been led by plaintiff in respect of provision of any services or goods to defendant, or for the defendant, nor such third parties have been summoned and examined, to prove the said allegation.
e) Plaintiff, while admitting not to be maintaining any ledger account himself, has contradicted himself by claiming a certain sum to be outstanding/balance amount of bills, which fact itself is sufficient for outright dismissal.
f) Plaintiff has claimed amount to be due on account of letting air conditioners on hire, whereas he has neither placed any document/or proved his financial capacity to give air-conditioner on hire basis. Further, he has admitted in cross examination that he does not have any document to support the claim.
g) The suit of the plaintiff cannot be maintained for any claim/bill pertaining to the period before 23.03.2015 that is for the period prior to 3 years immediately preceding the date of filing of present suit as there is no mutual, open/current or running account between the parties nor any such account is either claimed to be existing or even proved.
h) Plaintiff has not proved any such understanding or agreement or any service contract so as to show that he Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
14has rendered any services for on behalf of the defendant. The plaintiff did not examine any third party claimed to be the clients of the defendants, or even to summon any record from the defendant. Since there is no privity of contract, no liability of the defendant is proved.
i) The case of the plaintiff is even otherwise also misconceived as the total amount of bills proved is Rs.95,208/- only out of which Rs.82,227/- are admittedly paid. Besides, the plaintiff had not proved any work actually done so as to justify his bills, even as the defendants have been categorically denying any privity of contract.
j) No reliance can be placed upon the e-mails or the attachment being relied upon by the plaintiff, and even the certificate under the Section 65B of the Evidence Act being relied upon by the plaintiff is lacking in terms of effectiveness as well as compliance as mandated by the statutory provisions, and thus neither the certificate nor even the e-mail or attachments can be looked into as any reliable evidence.
k) The defendant is estopped from placing reliance on any statement of account alleging it to have been supplied by the defendant as not only the same has remained not proved in accordance with law, but also does not absolve the plaintiff from his own responsibility to stand on his legs.
l) The plaintiff admittedly is not qualified engineer or even qualified enough to provide any technical/engineering services and, thus, it cannot be believed that he had been engaged to provide services by the defendant that is a limited company.
Suit No.293/2018Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
15m) The suit is even otherwise barred by limitation as the plaintiff has not proved any work/will for the period 2015 to 2018, and the suit has been filed in March, 2018 and there is no mutual and running or open account proved by the plaintiff.
n) This court has no territorial jurisdiction as defendant and his office and operations at Gurgaon and the mere location of the registered office, for the purpose of statutory compliances, would not afford any cause of action to the plaintiff to file a suit at Delhi. Besides, the plaintiff has not proved the cause of action or even the part of action to have been accrued within the territorial jurisdiction of this court. Learned counsel for the plaintiff relied upon Patel Roadways Ltd. Vs. Prasad Trading Company [(1991) 4 Supreme Court Cases 270].
o) Learned counsel for the defendant has also relied upon
(i) Anwar P.V. Vs. P.K. Bashur & Ors. [(2014) 10 SCC 473], (ii) Arjun Ponditras Khaotkar Vs. Kailash Kushanrao Gorantyal [2020 latest caselaw 421 SC] judgment dated 14 July 2020, (iii) Ankur Chawla Vs. CBI [MANU/DE/2923/2014:2014(10) LRC 96 (Delhi) 189], (iv) Sharma Enterprises Vs. Hotel Leela Venture Ltd. [(2009) 159 DLT 60].
19. Time now to deal with the issues. Issue No.2 to taken up first.
Issue No.2: Whether the plaintiff has not approached this Court with clean hands? OPD
20. No specific evidence has been lead or any specific arguments addressed in this respect. However, in the initial pleadings, the defendant had claimed that the plaintiff is actually a Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
16partnership concern, but to wriggle out from the non-consequences, he has filed the suit as proprietor. The plaintiff has proved exhibit PW1/1 - Certificate of provisional registration under GST and Ex.PW1/2 - Certificate from the banker which settles this controversy to rest as the plaintiffs constitution as a proprietor firm stand duly proved, as there is neither any cross examination nor any evidence has been led to the contrary. As such, the issue is decided in favour of the plaintiff and against the defendant.
Issue No.3: Whether the plaintiff is entitled to recover of Rs.3,69,938.11/- as claimed? OPP And Issue No.4: Whether the plaintiff is entitled to interest on the aforesaid amount? If so, at what rate and for which period? OPP These issues are taken up together being interconnected.
21. Plaintiff has asserted that he had been providing technical services relating to the clients of defendant from time to time and upon the orders being placed by the defendant. Plaintiff has claimed to have worked for the defendant till the year 2015/2016 and has also placed on record bills - Ex.PW1/11 to Ex.PW1/18, PW1/23 to Ex.PW1/25, Ex.PW1/36, Ex.PW1/37, Ex.PW1/40, Ex.PW1/43, Ex.PW1/44, Ex.PW1/47 to Ex.PW1/49, Ex.PW1/51, Ex.PW1/52 and Ex.PW1/55. Apart from service statements stated to have been issued by the defendant as Ex.PW1/33, Ex.PW1/35, Ex.PW1/39, Ex.PW1/41, Ex.PW1/42, Ex.PW1/45, Ex.PW1/46, Ex.PW1/50, Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
17Ex.PW1/53, Ex.PW1/54, Ex.PW1/56.
22. These service statements which are stated to be the job orders placed by the defendant have been denied by the defendant. The defendant side has rigidly maintained its stance of not having any business, relationship with the plaintiff as is clear from the specific denials in the written statement as will as the contentions of the defendant side whereby the plaintiff case is stated to be misconceived, being without any privity of contract with the plaintiff.
23. In the factual backdrop of the case, what crops up first and most prominently, is the question as to whether there was any privity of contract between the parties. While the plaintiff's categorical stand is that he had been providing services / goods to the clients and has also placed various bills for the work done, service statements, copy of e-mail sent to, and received from the defendant, together with the statement of account, the defendant side has rigidly maintained that there was no engagement of the plaintiff as any employee or contractor, nor has any transactions taken place or any work done for and on behalf of the defendant.
24. As transpires from the written statement, all the averments of the plaint have been denied with a sweeping generality. As far as the documents placed by the plaintiff are concerned, the same are stated to be manipulated by the plaintiff, as also not proved.
25. Although outright denials characterize in the written Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
18statement, there is a noticeable shift in stance, in the affidavit of evidence, filed by DW1. Para No.4 of the affidavit is reproduced as under:-
"That the plaintiff is an uneducated person and is an ordinary electrician providing door to door services. The Plaintiff has no technical or mechanical or engineering qualification. The Plaintiff had approached the defendant in 1998 for getting references of clients of the defendant to get some work. The defendant introduced the plaintiff to some of its clients with a view to help the plaintiff to earn his livelihood. However the defendant had never given any assurance or guarantee to the plaintiff that the defendant would make payment to the plaintiff on behalf of its clients. The defendant and thus, on few occasions, only helped the plaintiff in procuring some pretty work so as be able to earn his livelihood. The defendant had also assigned some work of petty nature to the plaintiff long back and had made timely and complete payments to the plaintiff. The defendant had never hired any air-conditioners from the plaintiff. The plaintiff never had the financial capacity to give air- conditioners on hire basis."
26. The said shift in the stance, when contrasted with sweeping generality of denials in the written statements, incurs considerable discredit to defendant's narrative. The change of stance by itself, however, is not decisive as to nature and extent of business between the parties.
27. Plaintiff has proved various services ordered from the defendant. There is conspicuous absence of any specific stand by the defendants qua Ex.PW1/33, Ex.PW1/35, Ex.PW1/39, Ex.PW1/41 amongst others. Even though the said documents are Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
19claimed to be manipulated, it was squarely upon the defendant to bring in the best evidence which could have been available with them, at least to the effect that the same do not conform with the records of the defendant. PW1 has not been cross examined by the defendant side on these documents which underscores their passive acceptance as their validity.
28. Once the parties have gone into trial, mere disowning of documents by the defendant, would not help the defendant so as to say that there was no privity of contract. Especially, when there are other documents as well, clearly indicating existence of a long standing business relationship. The best evidence was available with the defendant, & had not been produced.
29. Attention of the court have also been invited towards the Ex.PW1/26 and Ex.PW1/27 - Form 26AS, Ex.PW1/3, Ex.PW1/4 and Ex.PW1/8 -- the letter together with format, Ex.PW1/5 to Ex.PW1/7 e-mails and attachment and Ex.PW1/9 & Ex.PW1/10 e- mails dated 24.03.2017 together with attachment.
30. It is contended by the plaintiff side that the defendant has deducted TDS on the payments made to the plaintiff which is reflected clearly in the F-26 A/S /Ex.PW1/26 for assessment year 2015-2016 and Ex.PW1/27 for the assessment year 2014-2015. The said documents have not been either cross examined upon, or had been their any attempts to counter the claims made therein, by production of any records. The stand of the defendant that there had been no engagement or privity of contract is totally knocked Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
20off and belied.
31. Considering what is recorded in these documents, the defendant cannot be heard to say that they had been no dealings. Although belatedly, the defendant had sought to impress upon the Court that there were some transactions long back for which the plaintiff stood paid, the defendant ought to have brought its own records, if it all there were no transactions between the parties which could have called for deduction of TDS as late as 2014-2015 and 2015-2016. There is a conspicuous absence of any explanation or any document to the contrary. These two documents underscore payment to have been made by the defendant during the said assessment years which leaves in favour of existence of a continuing business relationship. Defendant side has clearly elided to rebut the inferences which these documents generate and has simply objected to its technical proof under Section 65B of Evidence Act. The said objection would be dealt with separately. However, suffice it to say that the deduction of TDS itself has not been contradicted.
32. Coming now to the documents - Ex.PW1/3 and Ex.PW1/5 and Ex.PW1/8. Although these documents as well, are met with denials, there is no evidence placed on record by the defendant to prove that the same were not issued by the defendant. Undoubtedly it is for the plaintiff to stand in its legs, however the onus to prove that the said documents were manipulated, false, fabricated gets shifted upon the defendant once the original was placed and Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
21tendered into evidence by the plaintiff with a clear assertion of their having been issued by defendant. It has been contended that the mere exhibition of the document is not proved, the contention of the learned counsel for the defendant would be hedged by certain limitations. The documents have been produced in original and the best evidence which could have been displaced or discredited these documents was not produced by defendant despite being in power and possession of such evidence. Even if the plaintiff has not summoned any witness from the office of defendant to prove that documents, the facts remain that said documents read in conjunction with other documents, infuses credibility to the said documents. The non-summoning of any witness from the defendant, by the plaintiff, to prove these documents, amongst others, in the facts and circumstances of the case, would not be fatal to the case of the plaintiff as onus to prove manipulation, shifted to defendant side.
33. Coming to the next limb of the arguments. The absence of any ledger/accounts by the plaintiff. It is categorically stated that in the absence of the account books, these stray bills can neither be treated as reliable and that it is admitted case of plaintiff that he had not been maintaining any account books, nor is any placed or proved on record on record. The absence of this evidence, as per the submissions of Ld. Counsel for defendant, in itself is sufficient to knock of the entire case of plaintiff.
34. Ld. Counsel for the plaintiff, on the contrary has placed Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
22heavy reliance on e-mail dated 24.03.2017 - Ex.PW1/9 and the attachment - statement of account - Ex.PW1/10, contending that there is a clear admission of liability, and the absence of any ledger/account books would be inconsequential once the admission is proved.
35. The said document is, however, as contended by Ld. Counsel for defendant neither proved nor reliable for the reason that there is no compliance of Section 65B of the Indian Evidence Act, and since the plaintiff is to stand on its own legs, no finding can be based on this document.
36. In view of the objections, the question as to whether the documents Ex.PW1/9 and Ex.PW1/10 are proved in accordance with law, needs to be dilated upon.
37. Section 65B of the Indian Evidence Act reads as follows:-
"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 Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.23
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 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, 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 Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.24
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 subsection 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,
(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 Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
25information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process. ]
38. Plaintiff has also proved his certificate Ex.PW1/57, under Section 65B, which reads as under:-
"It is hereby certified that all the electronic record including documents, e-mail(s) etc. which have been filed in the form of documents have been produced by the computer and electronic devices during the period over which the same was regularly used to store or procure information for the purpose of any activity regularly carried on over that period by me having lawful control over the use of that computer. I also declare that the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of said activity. I also certify that during the material part of the said period, the computer was being operated properly and even if it was not operating properly for some time, the break or breaks had no affected either the record or the accuracy of its contents. It is also certified that the information contained in the record is a reproduction or derivations from the information fed into the computer, in the ordinary course of the said activity. The present certificate has been issued under the provision of Section 65B of the Evidence Act."
39. Ld. Counsel for the defendant has placed his reliance on Anvar P.V. Vs. P.K. Basheer & Ors.:(2014) 10 SCC 473, Sudir Engineering Company Vs. Nitco Roadways Ltd.:1995 II AD Delhi 189, and Sharma Enterprises Vs. Hotel Leela Ventrue Ltd.:(2009) 159 DLT 60, in support of his contentions. However, the court finds that the requirement of Section 65B are Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
26sufficiently met with and the Court cannot be expected to undertake any hairsplitting exercise in this respect, not can be oblivious of necessity of a reasonable approach, having regard to the practical consideration of trading entity. It is not fatal for such certificate, if a particular phraseology is not used.
40. Ex.PW1/9 and Ex.PW1/10 are the print out of e-mail and attachment, which are sent from e-mail ID [email protected]/in.
41. The domain www.continentalindia.net/in belongs to the defendant, as is also apparently clear from the resolution Ex.DW1/1, proved by DW1. The said domain name is also reflected in other documents, which are attributed to the defendant, by the plaintiff side.
42. Besides, there is a clear absence of any cross examination of PW1, as also any evidence to counter the inferences that these documents generate. It cannot be overlooked that not only the best evidence and best witness. Ramesh Batra admittedly an employee, who continues to be within employment of defendant company was not produced by defendant, in support of its narrative as to manipulation of document. The defendant cannot be heard to say that these e-mail and attachment are manipulated, as they had all the time and opportunity to prove any such "manipulation". The non examination of the witness Ramesh Batra, and non-production of any evidence as to manipulation of the ID, warrants an adverse inference against the defendant. The document, are thus proved.
Suit No.293/2018Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
2743. True that the bills placed by the plaintiff may not, by themselves be sufficient or decisive as to any liability. However, it is not a case where these bills alone are being relied upon, or are not accompanied by any other evidence. The service orders attributed to the defendant, the letter dated 05.09.2015 and the format - Ex.PW1/3 and Ex.PW1/4, e-mails Ex.PW1/6, Ex.PW1/7, e-mail dated 24.03.2017 from e-mail ID [email protected] by their sheer volumed their probative value as well as considering the lack of any evidence on record to counter the credibility, these document generate are clearly indicative of the continued business relationship and that the plaintiff had working job orders/services orders and that the plaintiff has been able to prove privity of contract. The court may add here that it is the preponderance of probabilities, which is the quotient of proof desirable in the Civil proceedings, which is sufficiently met in the present case.
44. Adverting now to question of liability, the defendant side has contended that even as per the bills such an amount cannot be claimed to be recoverable. It is cardinal principle of law that admission is the best form of evidence. Ex.PW1/10(colly) the statement of account reflects that a sum of Rs.3,00,312.11 paise was due from the defendant to plaintiff as on 27.12.2016.
45. Not only for the reasons mentioned above, the court finds that this statement confirms to the bills and bill amounts, certain bills, the dates of the bill amount which are placed by the plaintiff.
Suit No.293/2018Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
28There are adequate reason to believe that this statement - Ex.PW1/7 is prepared by the defendant in due course of its business as it was also sent to the plaintiff by the defendant itself. The objection as to the amount due is outshine rather knocked off by the very admission to the liability to tune of Rs.3,00,312/-, as on 27.12.2016.
46. The defendant thus is liable to pay the said amount once the defendant statement of account has been proved.
47. As far as the instalment is concerned, having regard to the fact that the transaction relates to business of parties and also the fact that the amount has been wrongfully denied to the plaintiff, without any just cause, the plaintiff is entitled to invest. In the facts and circumstances of the case. The Court is of view that the interest @12% per annum would suffice.
Issue No.1: Whether this Court has no territorial jurisdiction to entertain and try the present suit?
48. Learned counsel for the defendant has contended that there is no evidence s to negotiation of transaction at Delhi nor is location of registered office of the defendant material for the purpose of territorial jurisdiction in this case and as such this court is devoid of any territorial jurisdiction to try and entertain the present proceedings. The said argument is countered by plaintiff on the ground that job works were done at various sites including those sites all within the territorial jurisdiction of this Court. The instances of multiple job orders being done at Delhi and more Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
29particularly ILBS, Vasant Kunj, are pointed out by the learned counsel for plaintiff, from amongst the bills of the plaintiff as well as the statement of account Ex.PW1/7 itself, wherein site of the job work is also recorded.
49. In this backdrop, the objection as to territorial jurisdiction falls into insignificance as part of the cause of action is proved to have approved within territorial jurisdiction of this Court. This issue is decided against defendant and in favour of plaintiff.
50. Before proceeding further, the contention as to limitation raised by the defendant needs to be addressed. Although it is mentioned that the claim is barred by limitation, it has not been demonstrated that in light of Ex.OW1/7 or entries made there as well as deduction of TDS till the year 2016, on what basis the suit is claimed to be embarred by limitation. The contention thus is not liable to be accepted.
Issue No.5: Relief.
51. As a sequal to the findings above the plaintiff is held entitled to a sum of Rs. 3,00,312.11 with interest @12% per annum from 27.12.2016 till it's actual realization. The plaintiff is further held entitled to the costs of the suit.
52. The suit is decreed accordingly in favour of plaintiff and against defendant, thereby directing the defendant to make the payment on principal interest and costs within three months from the date of this judgment.
Suit No.293/2018Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.
3053. Decree sheet be prepared accordingly.
Announced in the open court (Virtual) on 24.01.2022 (NIKHIL CHOPRA) ADJ02/SOUTH/SAKET COURTS NEW DELHI Suit No.293/2018 Rais Ahmed Khan Vs. M/s Continental Equipment (India) Pvt. Ltd.