Delhi District Court
Arvinder Singh Puri vs Ashmeet Sahni Proprietor Of M/S. Shashi ... on 14 February, 2025
1
IN THE COURT OF SH. BHUPESH KUMAR: DISTRICT JUDGE
(COMMERCIAL COURTS)-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CS (Comm) No. 22/2024
In the matter :
Arvinder Singh Puri
Proprietor of M/s Fabrik Affaire
E-74, Ground Floor,
Amar Colony, Lajpat Nagar, New Delhi-110024
Also at:-
G-3 A, Ground Floor,
102 First Floor & 501 Fifth Floor,
Manisha Building, 75-76
Nehru Place, New Delhi-110019
E-mail:- [email protected]
... Plaintiff
Versus
Ashmeet Sahni
Proprietor of M/s Shashi Fabrics India
2582, Ground Floor,
Hudson Lane, Delhi-110009
Also at:-
607, Katra Neel,
Gali Ghanteswar, Chandni Chowk,
Delhi-110006
Mobile No. +91-9871094829
....Defendant
Date of Institution : 12.01.2025
Date of Arguments : 10.02.2025
Date of Judgment : 14.02.2025
JUDGMENT
1. The present suit has been filed by the plaintiff Sh. Arvinder Singh Puri against defendant Sh. Ashmeet Sahni proprietor of M/s Shashi Fabrics India vide which prayer has been made to pass a decree of specific performance, Digitally signed BHUPESH by BHUPESH KUMAR KUMAR Date: 2025.02.14 16:15:52 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 2 recovery of sum of Rs.4,22,500/- against the defendant along with interest 18% per annum from the date of filing of the suit till its realization.
2. The brief facts of the matter as emerged from the plaint are that the plaintiff is a proprietorship firm engaged in the business of selling clothing, textiles and allied goods and averred defendant is also running similar business. It has been further averred that defendant approached the plaintiff to purchase import quality goods like nylon lace, viscose/rayon etc and after discussion the plaintiff agreed to supply the material to the defendant and also raised pro-forma invoices of sum of Rs.4,72,500/-. The defendant has paid advance sum of Rs.50,000/- for the same. It has been further submitted that generally 30% of advance is charged before placing an order and accordingly plaintiff asked defendant for an advance of 30% of the invoice value which comes to approximately Rs.1,41,750/- but defendant did not pay the same. It has been further submitted that Mr. Angad Dua, Store Manager of the plaintiff who used to remain in touch with defendant has informed the defendant through whatsapp on 17.05.2022 that the required goods have reached at store of plaintiff and he should collect the same. But the defendant avoided to take delivery on one pretext or other. It has been further submitted that on 19.05.2022, at asking of defendant plaintiff has issued an invoice dated 01.05.2022.
It has been further submitted that on 20.05.2022, father of the defendant reached at the store of the plaintiff and checked the quality of goods and thereafter on satisfaction, the defendant has transferred sum of Rs.1,00,000/- to the plaintiff against the total balance of Rs.4,22,500/- as of 19.05.2022. It has been further submitted that without taking the delivery, of said goods defendant has started placing more orders upon the plaintiff of Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
2025.02.14 16:15:59 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 3 lesser value and the transactions took place between the parties from 02.05.2022 till 16.08.2022 for which the plaintiff has maintained a separate ledger account. It has been further submitted that defendant has assured the plaintiff to make the payment pertaining to the invoice dated 19.05.2022 and to take delivery as soon as he returned to Delhi but even after lapse of substantial time, defendant has not taken the delivery. It has been further submitted that plaintiff has asked the defendant time and again to take the delivery of the goods or to make the balance payment of Rs.3,22,500/- but of no avail. It has been further submitted that defendant has filed Civil Suit against plaintiff before Ld. Civil Judge, South East District, Saket Courts with suit bearing no.
CS SCJ/789/2023 on the reason of delay in procuring material and substandard quality of goods. Inter alia on the basis of these submissions, prayer has been made to pass the decree of Rs.4,22,500/- i.e., Rs.3,22,500/- due payment and Rs.1,00,000/- as damages.
3. Defendant has contested the suit by filing the written statement, wherein, preliminary objections were taken that defendant has came in contact with plaintiff in the month of April, 2022 through social media and thereafter, dealt with plaintiff for purchase of imported fabric. It has been further submitted that plaintiff has induced the defendant to check fabric with rates and accordingly the defendant has selected the fabric with their rates. It has been further submitted that plaintiff has calculated an approximate amount of Rs.3,00,000/- to Rs.3,50,000/- of the selected fabric and the plaintiff the defendant to make some advance payment as security amount. It has been further submitted that accordingly the defendant has transferred Rs.50,000/- to the defendant through NEFT. It has been further submitted that plaintiff again approached defendant on 19.05.2022 with malafide and mischievous intention Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
2025.02.14 16:16:05 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 4 to further induce defendant to deposit minimum of 50% booking amount and accordingly defendant has further transferred Rs.1,00,000/- in the account of the plaintiff through NEFT. It has been further submitted that after a week plaintiff called the defendant to inspect the fabrics and on inspection, defendant found that the said fabric was totally different from the order placed and was of low quality. At this the plaintiff asked the defendant to wait for some time for anothr fabric as another consignment would reached very soon. But the material was never supplied. It has been further submitted that defendant has issued legal notice dated 17.02.2023 to plaintiff, demanding sum of Rs.1,50,000/- along with interest. It has been further submitted that defendant has filed recovery suit in the Court of Sr. Civil Judge, South East District, Saket Courts, New Delhi.
On merits, It was denied that as per discussion between both the parties pro-forma invoice of Rs.4,72,000/- was issued by plaintiff as agreed. It was denied that in accordance with pro-forma invoice the plaintiff has procured the goods. It was denied that generally 30% of advance is charged before placing an order and plaintiff asked for advance of 30% of invoice value which come to Rs.1,41,750/-. It was denied that Mr. Angad Dua, Store Manager of the plaintiff informed the defendant through whatsapp on 17.05.2022 to collect the goods as the goods have reached the store of the plaintiff and the defendant avoided the same on one pretext or other. It has been further submitted that no conversation took place between plaintiff and defendant regarding space of goods. It has been further submitted that even otherwise the whatsapp chat has no value. It was denied that plaintiff also issued inovice dated 19.05.2022 on the request made by the defendant. It was denied that father of defendant went to store of the plaintiff on 20.05.2022 and after checking the quality of the material, Rs.1,00,000/- was transferred to the Digitally signed BHUPESH by BHUPESH KUMAR KUMAR Date: 2025.02.14 16:16:12 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 5 account of plaintiff. It was denied that before taking the delivery of the material in question, defendant started placing further orders and of less value.
It was denied that on account of the mercantile misconduct of defendant, plaintiff was constrained to issue credit note dated 11.06.2022. Inter alia, on the basis of these submissions prayer has been made to dismiss the suit.
4. Replication to the written statement of the defendant was filed by the plaintiffs, wherein, plaintiff has generally denied the averments made in the written statement and reiterated and reaffirmed the contents of the plaint.
5. On the basis of pleadings of parties, following issues were framed on 10.07.2023:-
1. Whether the plaintiff is entitled for decree of a sum of Rs.
4,22,500/- against defendant, as prayed for? OPP
2. Whether, plaintiff is entitled for any interest as claimed, if so, at what rate and period? OPP
3. Relief.
6. The plaintiff has examined Sh. Arvinder Singh Puri as PW-1. This witness has led his evidence by way of affidavit Ex.PW1/A, wherein, this witness has made similar deposition to that of contents of the plaint. This witness has relied upon GST registration certificate as Ex.PW1/1, pro-forma invoice as Ex.PW1/2, whatsapp chat as Ex.PW1/3. (the document was de-
exhibited as it was not filed along with the suit and was marked as Mark 'A'), invoice dated 19.05.2022 as Ex.PW1/4, invoices of various purchases made by defendant after the first order as Ex.PW1/5, ledger account as Ex.PW1/6, Digitally signed by BHUPESH BHUPESH KUMAR Date: KUMAR 2025.02.14 16:16:18 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 6 credit note is Ex.PW1/7, plaint along with documents as Ex.PW1/8, NSR is Ex.PW1/9.
The witness was cross-examined at length by Ld. Counsels for defendant. However, his cross-examination shall be considered at the time of appreciation of evidence.
The plaintiff has examined Sh. Angad Dua PW-2. This witness has brought on record whatsapp chat as Ex.PW2/1, affidavit under Section 65B is now Ex.PW2/2.
The witness was cross-examined at length by Ld. Counsels for defendant. However, his cross-examination shall be considered at the time of appreciation of evidence. PE was closed.
7. The defendant in support of his case has examined Sh. Ashmeet Sahni, proprietor of defendant firm as DW-1. DW-1 has led his evidence by way of affidavit Ex.DW1/A, wherein, he has made similar deposition to that of contents of the written statement. This witness has brought on record account statement of defendant firm as Ex.DW1/1, legal notice dated 17.02.2023 along with track report as Ex.DW1/2, affidavit under Section 65B of Indian Evidence as Ex.DW1/3.
This witness was cross-examined at length by Ld. Counsel for plaintiff and the same would be considered at the time of appreciation of evidence. DE closed.
8. I have heard the arguments of Sh. Abishek Wadhwa, Ld. Counsel for plaintiff and Sh. Musheer Zaidi, Ld. Counsel for defendant. Written submissions have also been filed on behalf of both the parties.
Digitally signedBHUPESH by BHUPESH
9. My issue-wise findings are as under : KUMAR KUMAR Date: 2025.02.14 16:16:22 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 7 Issue no.1 Whether the plaintiff is entitled for decree of a sum of Rs. 4,22,500/- against defendant, as prayed for? OPP The onus to prove this issue was on the plaintiff.
Ld. Counsel for plaintiff submitted that PW-1 Sh. Arvinder Singh Puri, proprietor of plaintiff firm has deposed to the effect that after defendant has agreed to purchase fabric/material from the plaintiff, plaintiff has raised pro- forma invoice of sum of Rs.4,72,500/- out of which Rs.50,000/- was paid. It has been further submitted that as agreed between the parties, material was procured by the plaintiff for supply and on 17.05.2022 Mr. Angad Dua, Store Manager of the plaintiff has informed the defendant qua receipt of material and asked defendant to collect the material and pay the remaining amount which was replied on the same day by the defendant vide which he told him that he is out of Delhi and would collect the material whenever he returned to Delhi. It has been further submitted that on 19.05.2022, defendant has sent whatsapp message to the plaintiff to send invoice which was sent on the same day. It has been further submitted that as per evidence of this witness, on 20.05.2022, the quality of the material was checked and thereafter Rs.1,00,000/- was transferred.
It has been further submitted that plaintiff has also examined PW-2 Mr. Angad Dua who used to communicate with the defendant and inform the defendant qua receipt of the material and used to ask the defendant to take delivery of the material. It has been further submitted that this witness has brought on record the computer generated print outs of whatsapp Ex.PW2/1 and affidavit under Section 65B of Indian Evidence Act in support of said print outs as Ex.PW2/1. On the basis of these submissions, it has been submitted Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
2025.02.14 16:16:27 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 8 that when plaintiff has procured the material at the instance of defendant, plaintiff is entitled for suit amount.
On the other hand, Ld. Counsel for defendant has submitted that the plaintiff has filed the present suit for specific performance and recovery of money. It has been further submitted that when the present suit for recovery of amount claimed is not maintainable as the defendant has not taken any material from the plaintiff for which defendant is liable to pay the consideration amount. It has been further submitted that quality of material/goods was not same to that of the sample shown to defendant, hence, contract could not be finalized. It has been further submitted that the defendant has paid sum of Rs.1,50,000/- as advance payment but since material was not supplied to defendant, hence, defendant is entitled for refund of the said amount for which defendant has filed civil suit against the plaintiff in the Court of Ld. Civil Judge. On the basis of these submissions, it has been submitted that the plaintiff is not entitled for anything from the defendant.
Heard. Material perused.
Before proceeding ahead, here it is necessary to mentioned the title of the suit which is as under:-
"Civil suit for specific performance, recovery of Rs.4,22,500/- (rupees four lacs twenty two thousand and five hundred only) with interest @18% per annum along with pendente lite and future interest till the date of realization under the Commercial Courts Act, 2015 on behalf of the plaintiff".
From the title of the suit, it is found that inter alia the plaintiff has mentioned "Civil Suit for Specific Performance". But in the body of the plaint, the plaintiff has nowhere mentioned any relief in this respect. Even, in the prayer clause, the plaintiff has not sought any decree for specific performance and even no issue qua specific performance was framed. It appears that probably it may be the reason that no such issue was framed. No Digitally signed by BHUPESH BHUPESH KUMAR Date: KUMAR 2025.02.14 16:16:40 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 9 doubt, in prayer (c) of prayer clause, the plaintiff has prayed to pass any order or further relief in favour of plaintiff. Even in case it is presumed that the prayer (c) of prayer clause could be in respect to decree for specific performance, even then no such relief can be granted to the plaintiff as the plaintiff nowhere in plaint and the affidavit of evidence Ex.PW1/A has mentioned anything in this respect, particularly, the fact that the plaintif is ready and willing to perform is part of contract. For grant of decree of specific performance, it is condition precedent that the plaintiff must mentioned in the plaint and bring on record cogent evidence that the plaintiff is ready and willing to perform is part of contract. Reliance in this respect can be made in case Janardan Das and Ors. Vs. Durga Prasad Aggarwalla and Ors, MANU/SC/1208/24 of Hon'ble Supreme Court. Under these circumstances, no such relief can be granted to the plaintiff in this respect.
The aforesaid issue no.1 qua decree for recovery of Rs.4,22,500/- was framed on the basis of the averments and prayer of the pliantiff in the plaint. Now the question arises as contended by Ld. Counsel for defendant, whether the present suit for recovery of money is maintainable or not.
In this respect, it has been vehementally contended by Ld. Counsel for defendant that the defendant did not owe anything to the plaintiff which is legally recoverable as debt, hence, the recovery suit is not maintainable. It has been further submitted that at the most the plaintiff could have filed the suit for damages, in case the defendant has violated any contract.
On this aspect, without going into detailed appreciation of evidence/material on record, it is found that the plaintiff has filed the present suit on the ground plaintiff agreed to supply material to defendant and he has Digitally signed BHUPESH by BHUPESH KUMAR KUMAR Date: 2025.02.14 16:16:44 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 10 raised performa invoice Ex.PW1/2 of sum of Rs.4,72,500/- out of which Rs.1,50,000/- has been paid as advance and he has procured the said material from somebody else to further supply it to the defendant. Further, as per case of plaintiff defendant has not lifted/taken the delivery of material and as such plaintiff is entitled for recovery of price of the material i.e., Rs.4,22,500/- (Rs.3,22,000/- principal amount plus Rs.1,00,000/- interest) has been filed.
From close scrutiny of chain of events, it is found that the plaintiff has acted to procured the material of a particular value at instance of defendant for which even the defendant has paid advance money. The moment material reached, plaintiff, the material belong to defendant and now the defendant by making the remaining payment could have lifted the material. Under these eventualities, it is found that the plaintiff was entitled for recovery of the amount, he has paid for procuring the material on behalf of the defendant. Hence, without going through any detailed discusion, it is found that the present suit inter alia seeking recovery of the amount claimed in this case is maintainable.
No doubt, the plaintiff can also claim damages for violation of the contract. The damages could be claimed by the plaintiff in addition to recovery of the suit amount. The suit for damages could be for the actual loss accrued to the plaintiff viz. handling of material, space occupation, its maintenance etc., etc. But, as a matter of fact damages are not claimed by the plaintiff in this suit nor any such evidence lead by plaintiff. Hence, no such relief can be granted to plaintiff.
Now the question arises, whether the plaintiff has brought on record sufficient evidence/material in support of this issue. It is well settled law of land that in civil cases, plaintiff is required to prove its case by way of Digitally signed pre-ponderance of probabilities. BHUPESH by BHUPESH KUMAR Date:
KUMAR 2025.02.14
16:16:48
+0530
CS (Comm) 22/2024 Bhupesh Kumar
District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 11 Reverting to the present matter, the plaintiff claimed that he has procured the material of sum of Rs.4,72,500/- on the basis of performa invoice Ex.PW1/2 for which even the plaintiff has paid advance sum of Rs.1,50,000/-.
On the other hand, the defendant in the written statement has not specifically denied the fact that the plaintiff has procured the material but the defendant has came forward with the plea that the material was of low quality to that of the sample shown and approved by the defendant.
The plaintiff has examined two witnesses i.e., plaintiff PW-1 Arvinder Singh Puri himself and PW-2 Angad Dua, Store Manager of the plaintiff.
PW-1 plaintiff Arvinder Singh Puri has stated to the effect that after the defendant agreed to purchase the material from the plaintiff, plaintiff has procured the material which was even inspected and approved by father of defendant on 20.05.2022 and thereafter defendant has transferred Rs.1,00,000/- to the plaintiff. During cross examination of this witness, no explanation of this witness was called in this respect. Even, no suggestion was put to the witness that father of the defendant never inspected the material or that the defendant has not paid Rs.1,00,000/- upon his satisfaction that the material was of good quality. From the close scrutiny of testimony of PW-1, it is found that the defendant has failed to shake the testimony of this witness on the material point i.e., the material was procured by the plaintiff and it was approved by father of the defendant.
Here further question arises, whether this fact alone is sufficient to grant the claim to the plaintiff as prayed for. On this aspect, before proceeding ahead, here it is necessary to reproduce certain relevant portion Digitally signed by BHUPESH BHUPESH KUMAR KUMAR Date:
2025.02.14 16:16:54 +0530 CS (Comm) 22/2024 Bhupesh Kumar District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 12 of cross examination of PW-2 Angad Dua, Store Manager of plaintiff which is as under:-
"it is correct I have sent whatsapp message to the defendnat that in case the defendant do not life the material by 30.06.2022 then I will send the material to somebody else. Vol. The defendnat has placed the order in the month of April 2022, but has not lifted the material depsite my repeated requests for entire month of May and June, 2022 and that it why I have sent the said whatsapp message as the plaintiff was suffering loss due to the act of the defendant. The plaintiff has not sold the material to anybody else after 30.06.2022. It is correct that in the said whatsapp message I have also informed the defendnat that in case the material was not lifted by 30.06.2022 then the advance payment of Rs.1,50,000/- was forefeited. The plaintiff has never asked the defendant in any other business transaction that in case the material was not lifted by particular date then the advance would be forfeited. The defendant used to threat plaintiff to return his advance money ohterwise he would take legal action. It is wrong to suggest that the averments made in my affidavit of evidence Ex.PW2/A are false"
From close scrutiny of testimony of this witness, it is found that this witness in unmistakable terms stated to the effect that in case the material is not lifted by defendant by 30.06.2022 then he would sent the material to somebody else. Further, this witness has attempted to take another version to justify this communication by stating that the said message was sent as the plaintiff was suffering loss due to defendant.
Further, from perusal of examination in chief led by this witness by way of affidavit of evidence Ex.PW2/A, it is found that he has not stated anything qua sending of aforesaid whatsapp message to the defendant calling upon the defendant to lift the material by 30.06.2022, failing which he would send the material to somebody else and forfeit the advance and this fact came on record only during the cross examination of this witness. Under these eventualities, it transpires that this witness has attempted to conceal material fact from the Court that he has sent such whatsapp message to defendant.
Digitally signed by BHUPESH BHUPESH KUMAR Date: KUMAR 2025.02.14 16:17:00 +0530 CS (Comm) 22/2024 Bhupesh Kumar
District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 13 Now, the question arises what could be the effect or significance of said messages on the whatsapp of plaintiff.
In this respect, it is found that this witness or the plaintiff has not brought on record any communication through whatsapp or otherwise that the whatsapp message 30.06.2022 sent by the plaintiff should be ignored and should not be considered seriously by the defendant as it was out of ordinary wear and tear of the business transactions and that the material has not been transferred to anybody else and still lying with plaintiff and the plaintiff is still ready to supply the material provided the remaining amount is paid. Had any such communication be on record, the position might be different. But, informing the defendant that the material would be sold to somebody else in case it is not lifted by 30.06.2022, under these circumstances after 30.06.2022 definitely, the defendant would presume that the material is no longer exist for him.
Further, it is found that the plaintiff has failed to brought on record any material that is any photograph/video etc., to show that the material is still lying with the plaintiff and how much space has been occupied by the material in the premises of defendant. Further, the plaintiff has also failed to release its initial burden of proof that he has purchased the material of similar amount to that of pro-forma invoice Ex.PW1/2 and of same quality ordered by the defendant.
In the light of these discussion, it is found that the plaintiff has failed to bring on record any probable, cogent, consistent and clear evidence that the material is still lying with plaintiff, suffered any loss etc., and that the plaintiff is entitled for the suit amount. The issue stands decided against the plaintiff in favour of defendant.
Digitally
signed by
BHUPESH
BHUPESH KUMAR
KUMAR Date:
2025.02.14
16:17:28
+0530
CS (Comm) 22/2024 Bhupesh Kumar
District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025 14
10. Whether, plaintiff is entitled for any interest as claimed, if so, at what rate and period? OPP The onus to prove this issues was on the plaintiff. But, since the plaintiff has failed to prove issue no.1 i.e., the recovery of sum of Rs.4,22,500/-, therefore, the plaintiff is not entitled for any interest. The issue stands decided against the plaintiff in favour of defendant.
11. Relief.
In the light of above discussions, the present suit filed by the plaintiff Sh. Arvinder Singh Puri against defendant Sh. Ashmeet Sahni proprietor of M/s Shashi Fabrics India, stands dismissed with cost of Rs.25,000/- payable to defendant.
Decree sheet be prepared accordingly. Digitally signed
by BHUPESH
File be consigned to record room. BHUPESH KUMAR
KUMAR Date:
Dictated and announced 2025.02.14
16:17:33 +0530
on 14.02.2025.
(BHUPESH KUMAR)
District Judge (Commercial)-05
South East District, Saket, New Delhi
CS (Comm) 22/2024 Bhupesh Kumar
District Judge(Commercial)-05, SE, Saket, New Delhi/14.02.2025