Delhi District Court
M/S Khattar Enterprises vs M/S Shree Mahabir Infrastrcture on 30 May, 2026
IN THE COURT OF RAMESH KUMAR-II, DISTRICT
JUDGE (COMMERCIAL COURT)-08, CENTRAL, TIS
HAZARI COURTS, EXTENSION BLOCK:
DELHI.
CS (COMM.) 2595/2021
CNR NO.: DLCT01-006411-2021
IN THE MATTER OF:
(As per amended memo of parties)
1. M/s. Khattar Enterprises
Through its Proprietor
Sh. Satish Khattar.
2. Sh. Satish Khattar
Proprietor
M/s Khattar Enterprises
Office at: CB-170/4, Ring Road,
Narayana, New Delhi-110028.
..........Plaintiffs.
Versus
M/s. Shree Mahavir Infrastructure
Through its Proprietor
Sh. Jitendra Kumar
Office at: 21, Jain Nagar,
Opposite Pawan Cinema,
Panchwati, Ghaziabad,
UP-201001.
..........Defendant.
Date of Institution : 20.04.2021
Date of final arguments : 04.05.2026
Date of decision : 30.05.2026
CS (COMM.) 2595/2021 Page no. 1 of 34
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit (as amended on 08.10.2024) filed by the plaintiffs against the defendant seeking recovery of Rs.29,60,169/- alongwith pendente lite and future interest.
2. Brief facts of the case as made out from the plaint are that the plaintiff is engaged in the business of Tandem Roller, Mechanical Paver, Sensor Paver, Motor Grader and other related construction machines on hire basis under the name and style of M/s Khattar Enterprises. The present suit has been filed through the proprietor of the plaintiff, namely Mr. Satish Khattar who is duly authorized to file the present suit and has all the knowledge of the day-to-day affairs of the plaintiff proprietorship firm and its business transaction.
2.1 It is further averred that the defendant is also a proprietorship firm with the name and style of M/s Shree Mahabir Infrastructure and the defendant portrayed itself to be the best engineering constructions of real estate, highways and railways and approached the plaintiff at Delhi office and expressed his desire to avail the services of the plaintiff and pursuant thereto, the defendant had availed the services on credit basis from the plaintiff.
2.2 It is further averred that on 08.05.2018, the plaintiffs had provided the last services to the defendant. The services were regularly availed by the defendant and in this regard entries were also made in log book regularly. The defendant had given work CS (COMM.) 2595/2021 Page no. 2 of 34 orders for availing services of the plaintiff and at the time of availing services, the defendant assured the plaintiff that the payment of the invoices and bills will be cleared by the defendant after checking of log book from site, however the defendant, even after several requests made by the plaintiff, did not make the payment and Rs.29,60,169/- is still pending against him.
2.3 It is further averred that the present suit has been filed on the basis of proforma invoices which have been issued by the plaintiff to the defendant and the same were accepted by the defendant with the assurance that the amount of the invoices will be cleared by the defendant very soon but no payment has been made as per the terms and condition settled between the parties and due to this reason, the final bill was not raised by the plaintiff to the defendant. Hence, the defendant is legally liable to pay outstanding amount of Rs.29,60,169/- to the plaintiff.
2.4 It is further averred that in order to discharge the liability towards the work orders given by the defendant to the plaintiff, the defendant issued cheques however all of the said cheques got bounced and the plaintiff has already filed a criminal case under Section 138 of the NI Act against the defendant in this regard.
2.5 It is further averred that the plaintiff approached the defendant for the aforesaid payment, the defendant on various occasions assured the plaintiff that soon the said amount will be released, however till date no payment has been received by the plaintiff, despite repeated reminders.
2.6 It is further averred that prior to filing the present commercial suit, the plaintiff initiated Pre-Institution Mediation CS (COMM.) 2595/2021 Page no. 3 of 34 before the Central District Legal Services Authority, Tis Hazari Courts, Delhi, in compliance with the provisions of the Commercial Courts Act but the said mediation proceedings failed as a non-starter. It is further stated that having been left with no other efficacious remedy, the plaintiff has filed the present suit seeking recovery of Rs.29,60,169/- along with pendente lite and future interest @ 24% per annum and costs.
3. Summons of the suit were sent to the defendant. Defendant could not be served by way of ordinary process. However, he was served by way of publication in newspaper "Rashtriya Sahara" on dated 02.11.2023 but he failed to appear before the court despite due service as per law nor he filed any written statement within the prescribed period, hence he was proceeded ex-parte by my Ld. Predecessor vide order dated 27.09.2023. Thereafter, matter was listed for ex-parte evidence of the plaintiff.
4. It is a matter of record that on 07.03.2024, Ld. Counsel for plaintiff sought time to move an appropriate application for seeking amendment in the plaint which was granted and finally on 24.05.2024, application under Order VI Rule 17 CPC was filed on behalf of the plaintiff which was allowed vide order dated 08.10.2024. Amended plaint was taken on record and matter was again fixed for plaintiff's evidence.
5. It is also a matter of record that on 17.12.2024, another application under Order I Rule 10 CPC was moved on behalf of the plaintiff for impleadment of the proprietor of plaintiff company. Notice of this application was issued to the defendant. The defendant appeared and filed an application under Order IX CS (COMM.) 2595/2021 Page no. 4 of 34 Rule 7 CPC. After hearing arguments on both the aforesaid applications, my Ld. Predecessor dismissed the application of the defendant under Order IX Rule 7 CPC and allowed the application of the plaintiff under Order I Rule 10 CPC vide common order dated 21.04.2025. Amended memo of parties was taken on record and matter was again fixed for ex-parte plaintiff's evidence.
6. It is also a matter of record that a Local Commissioner was appointed in this case by my Ld. Predecessor on 13.08.2025 under Order 15A Rule 6 (1) of the Commercial Courts Act and Order XXVI Rule 4A read with Order 18 Rule 4 CPC to record evidence of the defendant, to achieve timely and expedient disposal of this case and the matter was fixed for final arguments.
7. In order to substantiate his case, the plaintiff examined Mr. Satish Khattar, its proprietor as PW1, who tendered his evidence by way of affidavit as Ex.PW1/A and relied upon the following documents:-
i. Non-Starter Report as Ex.PW1/1.
ii. ID Proof of proprietor as Ex.PW1/2.
iii. Copy of work order, undertakings dated 18.02.2018,
demand letter dated 10.02.2018 and email from the defendant to plaintiff's email as Ex.PW1/3 (colly.). iv. Copy of entries made in the log book maintained by the plaintiff and defendant as Ex.PW1/4.
v. Copy of proforma invoices issued by the plaintiff to the defendant as Ex.PW1/5 (colly.).
8. PW1 was cross-examined on behalf of the defendant at length. No other witness was examined on behalf of the plaintiff and plaintiff's evidence was closed.
9. I have heard the arguments on behalf of both the parties.
CS (COMM.) 2595/2021 Page no. 5 of 34
10. Both the parties have filed their respective written submissions on record.
11. I have perused the record including written submissions filed on behalf of both the parties.
12. The point that arises for determination before this court is "whether the plaintiff is entitled for recovery of the suit amount from the defendant alongwith pendente-lite and future interest @ 24% per annum?"
13. PW1 Mr. Satish Khattar was cross-examined on behalf of the defendant in question-answer form. Relevant Questions and Answers are reproduced as under:-
"Q. Can you show me from the judicial record where the log book is existed?
Ans. The original pages of the log book Ex.PW1/4 (colly.) are existed from page no.28 to 39.
Q. Can you show me by looking the document Ex.PW1/4 (colly.) that the word "log book" is mentioned on any page of the said documents?
Ans. The "log book" word is always mentioned in the front of the log book. The same does not mentioned in the internal part of the said documents.
Q. Can you show me the name of your firm or your name in Ex.PW1/4 (colly.)?
Ans. The "name of the firm or my name" is always mentioned in front of the log book. The same does not mention in the internal part of the said documents. However, he has not annexed the front page of the CS (COMM.) 2595/2021 Page no. 6 of 34 log book upon which the word "my firm's name or my name" is mentioned.
Q. Can you show me the name of the defendant or defendant's firm in Ex.PW1/4 (colly.)?
Ans. The "name of the defendant and defendant's firm" is always mentioned in front of the log book. The same does not mention in the internal part of the said document.
Q. Did you mention in your plaint to which place the abovesaid machine (mentioned in proforma invoice no.007 dated 10.03.2017)?
Ans. I cannot read English, again said I am not having my specs at this time so that I am unable to read the same.
Q. Document Ex.PW1/4 (colly.) (pages 28-39) contains the seal of M/s Khattar Enterprise having your signature being the proprietor at point "A" on each page was stamped and signed at the time of filing the present matter. What do you want to say?
Ans. At this moment I do not remember.
Q. Have you brought the original of the proforma invoices which you have exhibited as Ex.PW1/5 (colly.) pages 40 to 48 on 25.09.2025?
Ans. One original copy of the proforma invoices were sent to the defendant and the proforma invoices which are on the judicial record pertains to the plaintiff's copy.
Q. The proforma invoices Ex.PW1/5 (colly.) pages 40-48 are the photocopies. What do you want to say?
Ans. The proforma invoices are originals and one copy handed over to the defendant and remaining one copy is kept with me and the same are annexed by me as Ex.PW1/5 (colly.) pages 40-48. Vol. whenever CS (COMM.) 2595/2021 Page no. 7 of 34 we put our seal and signature on the printed copy, the same became original.
Q. Document Ex.PW1/5 (colly.) (pages 40-48) contains the seal of M/s Khattar Enterprise having your signature being the proprietor at point "C" on each page was stamped and signed at the time of filing the present matter. What do you want to say?
Ans. It is correct that the seal and signature at point "C" was put at the time of filing the present suit.
Q. Is it correct that the space on page no.41 to 48 at point "D" has blank and does not bear any seal and signature either of your firm or of you?
Ans. Yes, it is correct that the said space "D" are blank on page no.41 to 48. Vol. when proprietor of the firm has put his signature then there is no requirement of any authority for putting the signature.
Q. Can you tell me on the basis of which source you filled the particulars, months/days, rate and amount mentioned in the proforma invoices bearing no.007 dated 10.03.2017?
Ans. The particulars of the machine which has been mentioned in proforma invoices, the machine was supplied to the defendant against which he did not receive the payment.
Q. Did you annex any document showing that the machine pertaining to the above proforma invoices was running for 3 months and 7 days?
Ans. I have not annexed any documents in support of the proforma invoice bearing no.007 dated 10.03.2017. Vol. this invoice pertains to the work which was executed before one and half year back (dated 10.03.2017) and this pertains to the balance payment for the same.
CS (COMM.) 2595/2021 Page no. 8 of 34 Q. Is it correct that the proforma invoice bearing no.007 dated
10.03.2017 does not bear any signature of the defendant?
Ans. Yes, it is correct.
Q. Have you sent any legal notice for demand pertaining the proforma invoice bearing no.007 dated 10.03.2017 at any point of time or file any case for recovery pertaining to the said proforma invoice?
Ans. We have not issued any legal notice or separate case pertaining to the said proforma invoice however we raised the demand against the said invoice in the present case.
Q. Have you paid the VAT of Rs.45,058/- to the government which has been mentioned in the proforma invoice dated 10.03.2017?
Ans. I have to ask from my accountant. Vol. Whenever the customer pays the amount then we prepare the original bill. That's why I have not paid the VAT amount to the government regarding the invoice bearing no.007 dated 10.03.2017.
Q. In para 12 of your evidence affidavit, Ex.PW1/A, you have mentioned that all the cheques were bounced which were issued by the defendant, can you tell me how many cheques were issued by the defendant which were dishonoured?
Ans. Only one cheque was issued by the defendant for the site of Kharal, U.P. This cheque was for an amount of Rs.2,80,000/- and the same was dishonoured against which he has filed the complaint case u/s 138 of NI Act which is pending in the court concerned.
Q. Did you file any proof that proforma invoice no.007 dated 10.03.2017 was supplied to the defendant?
Ans. I have not filed any proof in regard that I supplied same to the defendant. Vol. The same was supplied by hand through my employees.
CS (COMM.) 2595/2021 Page no. 9 of 34 Q. Can you show me by looking the proforma invoice no.007
dated 10.03.20174 at page no.40 any receiving/acceptance by the defendant?
Ans. There is no receiving/acceptance on the said document.
Q. Can you show me by looking the proforma invoices running from page no.41 to 48 any receiving/acceptance by the defendant?
Ans. There is no receiving/acceptance on the said document.
Q. What is the base of the particulars mentioned in the proforma invoice no.37 dated 08.05.2018?
Ans. The base of the particulars which are mentioned in the said invoice is work order and log book.
Q. Can you show the entries pertaining to serial no.1 mentioned in the column "particular" from the log book?
Ans. The same is at page no.28 from point "A to A1".
Q. Can you show the entries pertaining to serial no.2 mentioned in the column "particular" from the log book?
Ans. There is no record found in the said log book.
Q. What is the base of particulars mentioned in the proforma invoice no.32 dated 01.04.2018 (at page no.43)?
Ans. The base of the particulars which are mentioned in the said invoices is work order and log book.
Q. Can you show the entries pertaining to serial no.1 mentioned in the column "particular" from the log book?
Ans. The same is at page no.31-32 from point "C to C1".
Q. Can you show the entries pertaining to serial no.2 mentioned in the column "particular" from the log book?
CS (COMM.) 2595/2021 Page no. 10 of 34 Ans. There is no record found in the said Log Book.
Q. Is it correct that proforma invoice no.31 dated 17.03.2018 and proforma invoices no.32 dated 01.04.2018, you have mentioned the same period in particular 1 of both the invoices?
Ans. Proforma invoices no.31 dated 17.03.2018 pertains to the grader Komatsu no.GD511A however proforma invoice no.32 pertains to the grader against which I have not filed any log book.
Q. Is it correct that in proforma invoices no.29 dated 01.03.2018, you have mentioned the period from 01.02.2018 to 28.02.2018 and in proforma invoice no.31 dated 17.03.2018 you have mentioned the period 17.02.2018 to 16.03.2018 which are overlapping periods, can you show me the said from your log book?
Ans. Proforma invoices no.29 dated 01.03.2018 pertains to the grander Komatsu no.GD511A however proforma invoice no.31 pertains to the another grader against which he has not filed any log book.
Q. Can you show me the entries pertaining to proforma invoices no.26 dated 01.02.2018, proforma invoices no.23 dated 01.01.2018 and proforma invoice no.20 dated 01.12.2017?
Ans. Yes.
Q. Can you show me any proof from the judicial file that you have supplied the grader mentioned in Ex.PW1/3?
Ans. The same is mentioned in Ex.PW1/3 page no.23 which is the receiving of the same.
Q. Can you tell me the transport registration number of the grader which you alleged supply to the defendant from the judicial record?
Ans. The same is not mentioned in page no.23 of Ex.PW1/3. The same is mentioned on the transport builty."
CS (COMM.) 2595/2021 Page no. 11 of 34 13.1 PW1 also deposed that he has not annexed the front page of the log book upon which the word "name of defendant and defendant's firm" is mentioned but voluntarily stated that in the internal pages of the log book the description date of meter reading and particulars of the signature of operator and cust. signature are mentioned. Again said, the remark columns alongwith breakdown if any is also mentioned in the log book.
13.2 PW1 denied the suggestion that the pages of Ex.PW1/4 (colly.) do not pertain to the defendant that is why he did not annex the front page of the log book or that the pages of Ex.PW1/4 (colly.) are the photocopies and the stamp on point "A" on the said pages was put at the time of filing of the present suit. He also denied the suggestion that the proforma invoice is invalid in the absence of tax invoice or that he cannot seek recovery of amount pertaining to the proforma invoice bearing no.077 dated 10.03.2017.
13.3 PW1 also deposed that in the present matter they have not sought the VAT which has been mentioned in the proforma invoice bearing no.007 dated 10.03.2017. He also deposed that the machine was supplied from Delhi, again said, he does not remember where from they supplied the machine mentioned in the proforma invoice bearing no.007 dated 10.03.2017.
13.4 PW1 also deposed that Ex.PW1/5 (colly.) is computer generated copy and that he cannot operate computer. He also deposed that the said machine was supplied to the defendant at Kharal Site, U.P. He also denied the suggestion that the defendant is not liable to pay any amount against the said proforma invoice CS (COMM.) 2595/2021 Page no. 12 of 34 as no work was executed by the defendant in relation to the said proforma invoice. He also deposed that total payment of Rs.10 lacs was received but he does not remember the year in which he received the payment of Rs.10 lacs. He also deposed that he has not mentioned in this case that he has received Rs.10 lacs as this payment was pertaining to the previous work executed at the site Kharal, U.P. He also deposed that he has not received balance payment pertaining to the Kharal site. He also deposed that he has annexed proforma invoices 007 dated 10.03.2017 pertaining to the balance payment. He denied the suggestion that the cheque of Rs.2,80,000/- was issued as security when the work was started at the Kharal site in the year 2015. He also deposed that the proforma invoices running from page no.41 to 48 pertain to site of Khurja, U.P. 13.5 PW1 admitted as correct that proforma invoices pertain to page 41 to 48 are the photocopies. Vol. These are the computer generated copies. He also deposed that he cannot operate computer. He denied the suggestion that proforma invoice no.37 dated 08.05.2018 and log book are manipulated by him that is why there is no entry in the same or that log book does not pertain to the defendant or that all the proforma invoices are manipulated by him and the same also do not have any base. He denied the suggestion that proforma invoice no.35 dated 01.05.2018 and log book are manipulated by him that is why there is no entry in the same or that log book does not pertain to the defendant.
CS (COMM.) 2595/2021 Page no. 13 of 34 13.6 PW1 also denied the suggestion that the proforma invoice no.32 dated 01.04.2018 and log book are manipulated by him that is why there is no entry in the same or that log book does not pertain to the defendant. He also denied the suggestion that proforma invoice no.31 dated 17.03.2018 and log book are manipulated by him that is why there is no entry in the same or that log book does not pertain to the defendant. He also denied the suggest that log book does not pertain to the defendant.
13.7 PW1 admitted as correct that log book from page no.20 to 39 are the photocopies and also that log book does not bear the signature of the site in-charge. He also admitted as correct that the contents from point "Z to Z1" in para 6 of his evidence affidavit Ex.PW1/A has not been mentioned in his plaint. He also admitted as correct that he has not filed any proof regarding the same. He denied the suggestion that Ex.PW1/3 are the photocopies. He deposed that Ex.PW1/3 are computer generated copies.
13.8 PW1 also deposed that he has not annexed the front page of the log book upon which the word "log book" is mentioned. He also denied the suggestion that it is not the receiving of the grader or that no grader was supplied to the defendant. He deposed that he has not filed any transport builty in regard to the same and denied the suggestion that the grader was not supplied by him to the defendant that is why he did not file any transport builty in support of supply of the grader.
13.9 PW1 also deposed that he has not sent any legal notice for demand pertaining to the invoice no.20 dated 01.12.2017, CS (COMM.) 2595/2021 Page no. 14 of 34 proforma invoice no.23 dated 01.01.2018, proforma invoice no.26 dated 01.02.2018, proforma invoice no.29 dated 01.03.2018, proforma invoice no.31 dated 17.03.2018, proforma invoice no.32 dated 01.04.2018, proforma invoice no.35 dated 01.05.2018 and proforma invoice no.37 dated 08.05.2018. He denied the suggestion that he cannot claim any amount on the basis of proforma invoices as the same is not the valid documents/tax invoices or that he has manipulated the documents.
14. During the course of arguments, Ld. Counsel for plaintiff argued and submitted that the plaintiff used to supply construction machinery on hire basis to the defendant on credit basis after raising proforma invoices, but despite assurance the defendant did not make the payment. That the services were regularly availed by the defendant and in this regard the entries used to be made in log book on regularly basis.
14.1 Ld. Counsel for plaintiff further contended that during his cross-examination of PW1, the defendant has admitted the crucial and professional work relations between the plaintiff, as defendant has nowhere in cross-examination of PW1 has touched the very fact of delivering the work order to the plaintiff upon which the plaintiff acted and supplied the construction machinery on good faith to the defendant.
14.2 Ld. Counsel for plaintiff further submitted that relation between the plaintiff and defendant is proved from the work order of the defendant dated 20.11.2017, which is duly signed and sealed with the stamp of defendant company with regard to providing CS (COMM.) 2595/2021 Page no. 15 of 34 Motor Grader GD511A and this fact further got proved from the conduct of the defendant that during cross-examination of PW1, the defendant deliberately did not touch the point related to the stamp and signature of the defendant at any of the documents which were available on court record from page 23 to 27.
14.3 Ld. Counsel for plaintiff further contended that the reliance on documents from page 23 to 27 is evident from the question raised by the defendant during cross-examination of PW1 on dated14.11.2025 wherein it was asked that "what is the base of the proforma invoice no.32 & 35, to which PW1 gave reply that "the base of the particulars and relationship between the plaintiff and defendant are work order and log book".
14.4 Ld. Counsel for plaintiff further contended that the courts in various judgments have held that "if a document is put to a witness in cross-examination and is not denied, challenged or suggested to be false, the opposite party is deemed to have been accepted". That the defendant placed the work order but he has not even denied the work order which clearly shows the acceptance of the defendant to this effect.
14.5 Ld. Counsel for plaintiff further contended that as the work order relied upon by the plaintiff was never denied by the defendant during cross-examination of PW1 and also even no suggestion was put in disputing its issuance or authenticity, hence the said documents stand admitted and proved. That the plaintiff has filed certificate under Section 65 B of the Evidence Act wherein he has affirmed the fact that the documents are electronically produced documents.
CS (COMM.) 2595/2021 Page no. 16 of 34 14.6 Ld. Counsel for plaintiff further contended that it is settled law that failure to challenge a document in cross-examination amounts to admission and such admitted facts require no further proof under Section 58 of the Indian Evidence Act and that the objection regarding non-production of the original documents is therefore purely a technical and cannot defeat the claim of the plaintiff founded on an admitted work order, especially when the defendant is now ex-parte and the supply of the machinery stands corroborated.
14.7 Therefore, in view of the above, Ld. Counsel for plaintiff requested to pass a decree in favour of the plaintiff and against the defendant in terms of prayers made in the plaint.
15. Per contra, Ld counsel for defendant argued and submitted that the plaintiff has utterly failed to discharge the foundational burden of proof cast upon it under Section 101 to 103 of the Indian Evidence Act as the entire claim of the plaintiff is based upon photocopies, unendorsed documents, unproved electronic records and proforma invoices which neither constitute proof of transaction nor create any contractual or legal obligation.
15.1 Ld. Counsel for defendant further submitted that the entire documentary evidence of the plaintiff rests upon documents which were neither proved in accordance with law nor admissible in evidence, yet were mechanically exhibited during examination-in- chief conducted before Local Commissioner which was admittedly recorded in the absence of the defendant and his counsel, thereby depriving the defendant of the valuable statutory CS (COMM.) 2595/2021 Page no. 17 of 34 right to object to the mode of proof and admissibility of the documents at the time of tendering the affidavit.
15.2 Ld. Counsel for defendant further submitted that the plaintiff tendered only photocopies of documents i.e. work orders, demand letter dated 10.02.2018, undertaking dated 18.02.2018, log book and proforma invoices but despite the admitted absence of original, the Local Commissioner erroneously exhibited these documents, whereas they ought to have been marked for identification only, subject to proof.
15.3 Ld. Counsel for defendant further submitted that the plaintiff has attempted to prove its entire claim through photocopies, without proving it with original, thereby violating the best evidence rule embodied under Section 61 & 64 of the Indian Evidence Act.
15.4 Ld. Counsel for defendant further drew the attention of the court towards cross examination of PW1 which is reproduced as under:-
"The proforma invoices running from page 41 to 48 pertain to the Khurja site U.P.. It is correct that proforma invoices pertain to page 41 to 48 are the photocopies. Vol. These are the computer generated copies. I cannot operate computer.
15.5 Ld. Counsel for defendant further contended that the plaintiff has not field any certificate under Section 65 B of the Evidence Act in support of the proforma invoices, which is a mandatory statutory prerequisite for proving electronic records and in the absence of such certification, the proforma invoices CS (COMM.) 2595/2021 Page no. 18 of 34 Ex.PW1/5 (colly.) are ex facie inadmissible and cannot be read in evidence.
15.6 Ld. Counsel for defendant further submitted that the log book Ex.PW1/4 relied upon by the plaintiff forms the very foundation for the entries reflected in the proforma invoices is also only a photocopy which fact has been admitted by the PW1 in his cross examination.
15.7 Ld. Counsel for defendant further submitted that work order, demand letter and undertaking Ex.PW1/3 are also the photocopies which fact is also crystallised from the index of the documents which is on page no.19, column 3 and further this fact is also clear from the cross-examination of the plaintiff that he did not produce the original of these documents.
15.8 Ld. Counsel for defendant further submitted that it is thus manifest that the plaintiff has attempted to substantiate its entire claim on the basis of photocopies of the proforma invoices, log book, work order, demand letter and undertaking in blatant violation of the "Best Evidence Rule", which mandates that the contents of documents must be proved by primary evidence i.e. the originals themselves. Secondary evidence is only permissible upon establishing a foundation under Section 65 of the Evidence Act. Hence, the photocopies of aforesaid documents filed by the plaintiff are inadmissible in evidence and have no evidentiary value so can not be relied upon.
15.9 Ld. Counsel for defendant further contended that the photocopy of log book Ex.PW1/4 does not show the name of the plaintiff and also whether it belongs to the defendant. Hence, in CS (COMM.) 2595/2021 Page no. 19 of 34 the absence of original log book, proof of authorship, proof of custody and proof of contemporaneous execution, the alleged log book is inadmissible, unreliable, and incapable of corroborating any transaction.
15.10 Ld. Counsel for defendant further submitted that proforma invoices running from page 40 to 48 are also the photocopies and there is no acceptance on the said proforma invoices by the defendant and in the absence of an "acceptance"
or "counter-signature by the defendant, these invoices do not constitute a binding contract or an admission of liability. Hence, it proves that the said proforma invoices have been manipulated by the plaintiff to file the false claim against the defendant.
15.11 Ld. Counsel for defendant further submitted that there are nine proforma from page 40 to 48 filed by the plaintiff and all the proforma invoices are photocopies, hence same have no evidentiary value in the eyes of law.
15.12 Ld. Counsel for defendant further submitted that proforma invoice no.007 dated 10.03.2017 was manipulated by the plaintiff as the plaintiff has not filed any proof from which he can substantiate his claim on the basis of this proforma invoice. Moreover, proforma invoice no.007 dated 10.03.2017 pertains to the period from 01.12.2016 to 07.03.2017, so it is time barred as per the provisions of Limitation Act, as the case was filed on 15.04.2021 after three years.
15.13 Ld. Counsel for defendant further submitted that admittedly proforma invoice no.35 dated 01.05.2018 and 37 dated 08.05.2018 has two entries at serial no.01 and 02 in the column particulars but CS (COMM.) 2595/2021 Page no. 20 of 34 there is no record of entry made at serial no.2 in the said log book. Hence, it is clear that the said proforma invoices no.35 and 3 have been manipulated by the plaintiff as the entry made by the plaintiff has no record and moreover the other entry which he mentioned on the basis of logbook which itself has no authenticity, creditability and probative evidentiary value being having no name of the plaintiff, defendant and having no signature of the site in-charge and also being photocopy.
15.14 Ld. Counsel for defendant further submitted that as regards proforma invoice no.32 dated 01.04.2018, PW1 in his cross- examination deposed that entry made at serial no.1 in the said invoice are based on the log book at page no.31-32 from point 'C' to 'C1' but there is no record of entry made at serial no.2 in the said log book.
15.15 Ld. Counsel for defendant further submitted that as regards proforma invoice no.32 dated 17.03.2018, it is submitted that the version of the plaintiff regarding proforma invoice 31 and 32 are sufficient to demolish the creditability of proforma invoice no.32 as PW1 himself testified that he has not filed any log book pertains to the said proforma invoice no.32 which proves that the proforma invoice no.32 is manipulative.
15.16 Ld. Counsel for defendant further submitted that as regards proforma invoice no.29 dated 01.03.2018, PW1 in his cross-examination deposed that the proforma invoice no.29 dated 01.03.2018 pertains to the grader Komatsu no.GD511A however the proforma invoice no.31 pertains to the another grader against CS (COMM.) 2595/2021 Page no. 21 of 34 which he has not filed any log book, hence it proves that proforma invoice no.29 is also manipulative.
15.17 Ld. Counsel for defendant further submitted that as per document on page no.23 filed by the plaintiff, the motor grader Komastu GD-511A was taken by the defendant on 16.02.2018 from Naraina, New Delhi to Khurja site at Khurja, U.P., which means that the said grader would have reached at Khurja site only after 16.02.2018 and the plaintiff has filed the photocopy of proforma invoice no.26 dated 01.02.2018, proforma invoice no.23 dated 01.01.2018 and proforma invoice no.20 dated 01.12.2017 and it is pertinent to note that when as per the plaintiff, the grader was taken on 16.02.2018 then how could it is possible that the grader/machine be used before 16.02.2018 as mentioned in these proforma invoices. Hence, it shows that these proforma invoices are also manipulative and fabricated.
15.18 Therefore, in view of the above, Ld. Counsel for defendant requested to dismiss the suit of the plaintiff with costs.
16. I have perused the record and given my consideration to the rival submissions of the parties.
17. Though the defendant is ex parte in the present case, yet it does not mean that the suit will be decreed in favour of the plaintiff as every judgment passed by a court has to be on merits and a plaintiff has to stand on his own legs to prove his case.
18. In order to prove its case the plaintiff has relied upon certain documents i.e. copy of work order, undertakings dated 18.02.2018, demand letter dated 10.02.2018 which are CS (COMM.) 2595/2021 Page no. 22 of 34 collectively exhibited as Ex.PW1/3, copy of entries made in log book Ex.PW1/4 and copy of proforma invoices Ex.PW1/5.
19. Ld. Counsel for defendant has raised objections to the effect that aforesaid documents Ex.PW1/3 are inadmissible in evidence being photocopies and that the plaintiff has not filed any certificate under Section 65 B of the Indian Evidence Act in respect of computer generated documents, hence, the suit is liable to be dismissed.
20. I have perused the aforesaid documents one by one. A perusal of work order, demand letter and undertaking Ex.PW1/3 (colly.) reveals that these documents are photocopies and this fact has been proved by PW1 himself in his cross-examination by deposing that he did not produce original of these documents.
21. Further, a perusal of log book Ex.PW1/4 reveals that this document is also a photocopy and this fact has also been proved by PW1 himself in his cross-examination by deposing that he did not produce original of these documents.
22. Further, a perusal of proforma invoices Ex.PW1/5 reveals that these documents are computer generated documents. Ld. Counsel for plaintiff argued that the plaintiff has filed certificate under Section 65 B of the Indian Evidence Act in respect of computer generated documents. On the other hand, it is the contention of the defendant that no certificate under Section 65 B of the Indian Evidence Act in respect of computer generated documents i.e. proforma invoices Ex.PW1/5 (colly.) has been filed by the plaintiff.
CS (COMM.) 2595/2021 Page no. 23 of 34
23. I have gone through the said certificate under Section 65 B of the Indian Evidence Act. A perusal of the same reveals that the said certificate under Section 65 B of the Indian Evidence Act has been filed only in respect of ledger accounts and emails exchanged between the plaintiff and defendant and not for other computer generated documents. PW1 in his cross-examination deposed that he cannot operate computer. How a person who cannot operate computer could has filed certificate under Section 65B of the Indian Evidence Act is beyond imagination. Therefore, the said certificate under Section 65 B of the Indian Evidence Act is of no help to the plaintiff.
24. The plaintiff has not filed any other certificate under Section 65 B of the Indian Evidence Act in respect of computer generated documents i.e. proforma invoices Ex.PW1/5 (colly.) except aforesaid certificate. As the question of the admissibility of electronic evidence is raised, thus, it is necessary to examine the effect of absence of Certificate under Section 65-B (4) of The Indian Evidence Act, 1872 as plaintiff has not filed any Certificate under Section 65-B (4) of The Indian Evidence Act, 1872.
25. The provisions of law under Section 65-B of Indian Evidence Act, 1872 is reproduced as follows:-
"65-B. 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 CS (COMM.) 2595/2021 Page no. 24 of 34 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 of 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 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 CS (COMM.) 2595/2021 Page no. 25 of 34
(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 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;
CS (COMM.) 2595/2021 Page no. 26 of 34
(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,--
(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 CS (COMM.) 2595/2021 Page no. 27 of 34 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."
26. The position of admissibility of electronic evidence and the necessity of Certificate under Section 65-B (4) of The Indian Evidence Act, 1872 is clarified by the Hon'ble Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 which are reproduced as under:-
".....33. The non obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B, which is a special provision in this behalf --
Sections 62 to 65 being irrelevant for this purpose. However, Section 65-B(1) clearly differentiates between the "original" document -- which would be the original "electronic record" contained in the "computer" in which the original information is first stored -- and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65-B differentiates between the original information contained in the "computer" itself and CS (COMM.) 2595/2021 Page no. 28 of 34 copies made therefrom -- the former being primary evidence, and the latter being secondary evidence.....
xxx xxx xxx .....36. Despite the law so declared in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 :
(2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , wherein this Court made it clear that the special provisions of Sections 65-A and 65-B of the Evidence Act are a complete code in themselves when it comes to admissibility of evidence of information contained in electronic records, and also that a written certificate under Section 65-B(4) is a sine qua non for admissibility of such evidence,.......
xxx xxx xxx ......61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108], and incorrectly "clarified" in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 :
(2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865].
Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426], which has been followed in a number of the judgments of this Court, can also be applied. Section 65-
CS (COMM.) 2595/2021 Page no. 29 of 34 B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose....
xxx xxx xxx ......84. But Section 65-B(1) starts with a non obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65-A refers to the procedure prescribed in Section 65-B, for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled....."
27. Thus as per settled law Certificate under Section 65-B(4) of The Indian Evidence Act, 1872 is mandatory for the admissibility of electronic evidence. But in the present case, on behalf of plaintiff in support of his electronic documents i.e. proforma invoices Ex.PW1/5 (colly.) no Certificate under Section 65-B(4) of The Indian Evidence Act, 1872 is filed/produced. Thus, in absence of any Certificate under Section 65-B(4) of The Indian Evidence Act, 1872 in support of Ex.PW1/5 (colly.) they are inadmissible in evidence.
CS (COMM.) 2595/2021 Page no. 30 of 34
28. As far as work order, demand letter and undertaking Ex.PW1/3 (colly.) and log book Ex.PW1/4 are concerned, admittedly these documents are photocopies and original of the same have not been produced. In the present case the examination-in-chief of the plaintiff was recorded by Ld. Local Commissioner and it has nowhere come in the testimony of plaintiff that original documents have been seen and returned (OSR) at the time of exhibition of documents. In Sait Taraji Khimchand Vs. Yelamati Satyam (MANU/SC/0022/1971), the Hon'ble Supreme Court has held that "mere marking of a document as an exhibit does not dispense with its proof". It is settled law that photocopy of a document is inadmissible in evidence. It is not the case of the plaintiff here that original documents have been lost or misplaced. The plaintiff even has not sought permission to lead secondary evidence in respect of photocopies of aforesaid documents. Thus, documents Ex.PW1/3 (colly.) and Ex.PW1/4 are also inadmissible in evidence.
29. I have also considered the documents Ex.PW1/3 to Ex.PW1/5 from another angle.
30. As far as work order, demand letter and undertaking Ex.PW1/3 (colly.) is concerned, it is contended on behalf of the defendant that the plaintiff has not mentioned about these documents in the plaint and as such these documents cannot be relied upon being beyond pleadings.
31. PW1 admitted in his cross-examination that the contents from point "Z to Z1" in para 6 of the evidence affidavit Ex.PW1/A has not been mentioned in his plaint. Therefore, from CS (COMM.) 2595/2021 Page no. 31 of 34 the testimony of PW1 it is clear that work order, demand letter and undertaking Ex.PW1/3 (colly.) is beyond pleadings and thus same cannot be relied upon in evidence.
32. As far as log book Ex.PW1/4 is concerned, it is contended on behalf of the defendant that the plaintiff has not led any evidence to prove that this log book pertains to the defendant.
33. I have perused the log book Ex.PW1/4 and a perusal of the same reveals that this log book does not show the name of the plaintiff. It also does not show the name of the defendant. Admittedly, the plaintiff has not produced the front page of the said log book. The plaintiff has not led any cogent evidence to prove that log book Ex.PW1/4 pertains to the defendant. Thus, it is held that log book Ex.PW1/4 is of no avail to the plaintiff.
34. As far as proforma invoices Ex.PW1/5 (colly.) (from page 40 to 48) is concerned, Ld. Counsel for defendant argued that proforma invoices Ex.PW1/5 (from page 41 to 48) has been manipulated by the plaintiff just to file the false claim against the defendant.
35. PW1 admitted in his cross-examination that seal of M/s Khattar Enterprises and signature being the proprietor at point C on each page from 40 to 48 (document Ex.PW1/5 (colly.) was put at the time of filing the present matter. He also admitted that space 'D' are blank on page no.41 to 48. A perusal of space 'D' reveals that space 'D' is a place on the said proforma invoices where the signature of the plaintiff's authorised signatory is to be put but no signature has been put on the said space on behalf of CS (COMM.) 2595/2021 Page no. 32 of 34 the plaintiff. Further, admittedly there is no receiving/acceptance by the defendant on proforma invoices Ex.PW1/5 (colly.) from page 41 to 48. Hence, this court is of the opinion that these invoices do not constitute a binding contract or an admission of liability.
36. As far as proforma invoice no.007 page 40 (Ex.PW1/5 (colly.) is concerned, it is contended on behalf of the defendant that this proforma invoice was also manipulated by the plaintiff as there is no receiving/acceptance on the said document.
37. A perusal of proforma invoice no.007 page 40 Ex.PW1/5 (colly.) reveals that it also does not bear any signature of the defendant and there is also no receiving/acceptance on the said document which facts are admitted in cross-examination by PW1. Further, the plaintiff in cross-examination deposed that proforma invoice 007 dated 10.03.2017 (page 40) pertains to Kharal site U.P. and other proforma invoices page 41 to 48 pertain to Khurja site, U.P. but the plaintiff did not mention about the abovesaid sites in his plaint. Therefore, it is clear that proforma invoice 007 dated 10.03.2017 (page 40) also do not constitute a binding contract or an admission of liability.
38. Further, it is the contention of the plaintiff that the work order relied upon by the plaintiff was never denied by the defendant during cross-examination of PW1 and also even no suggestion was put in disputing its issuance or authenticity, hence the said documents stand admitted and proved. This contention of the plaintiff is not appreciable since no admission/denial of the documents has been done in the present case. The plaintiff has CS (COMM.) 2595/2021 Page no. 33 of 34 not led any cogent evidence to prove that the defendant had given work orders for availing services of the plaintiff.
39. In view of the forgoing discussion, this court finds that the plaintiff has failed to prove that any amount is legally recoverable from the defendant. The plaintiff is, therefore, not entitled to any money decree or any interest as claimed. Accordingly, the suit of the plaintiff is dismissed. No order as to costs.
40. Decree sheet be prepared accordingly.
41. File be consigned to Record Room as per rules.
Digitally signed by RAMESH KUMARRAMESH (Announced in open court on 30.05.2026). Date:
KUMAR 2026.05.30
14:30:14
+0530
(RAMESH KUMAR-II)
District Judge (Commercial Court)-08
Central District, Tis Hazari Courts,
Extension Block, Delhi.
CS (COMM.) 2595/2021 Page no. 34 of 34