Delhi District Court
Viva Books Private Ltd vs Future And Ors on 15 May, 2025
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-11 CENTRAL, THC, DELHI
CS Comm. No.1442/2023
Viva Books Private Ltd
Regd. Office at:
4737/23, Ansari Road, Daryaganj, New Delhi-110002
Through its AR Mr. Asif Hussain
..............Plaintiff
Vs.
1. M/s Future
Through its Managing Partner
250-A, G. T. Road, Liluah,
Howrah, West Bengal-711204
2. Surendra Kumar Agarwal
(Partner in M/s, Future)
15, Bankim Chatterjee Street, Kolkata, WB-700073
3. Krishan Kumar Agarwal
S/o Sri Gridharilal Agarwal,
(Partner in M/s Future )
64/3, G.T. Road, Liluah,
Howrah,West Bengal-711204 ...........Defendants
Date of Institution : 30.10.2023
Date of Final Arguments : 15.05.2025
Date of Judgment : 15.05.2025
Decision : Decreed
Judgment
1. This is a suit filed by plaintiff company for recovery of Rs.1,23,71,284/-
alongwith interest @18% per annum as unpaid dues of books sold.
Case of the Plaintiff
2. Case of the plaintiff as per 2 nd amended plaint is that it is a duly
incorporated private ltd. company at Daryaganj, Delhi and is in the
CS Comm No.1442/2023 page 1
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
business of publication and trading of all types of books including
textbooks and literature books. The plaint is signed and filed by plaintiff's
manager cum AR Mr. Asif Hussain. Defendant no. 1 is said to be a
partnership firm having defendant no. 2 Mr. Surinder Kumar Aggarwal
and Defendant no.3 Mr. Krishan Kumar Aggarwal as its partners.
Defendant no. 2 approached the plaintiff claiming to the Manager of
Defendant no.1 firm at Howrah, West Bengal apart from having two
branch offices in the vicinity of several schools and educational
institutions. He expressed interest in doing business with the plaintiff by
projecting that he is a prominent seller and distributor of books with good
clientage.
3. Initially, plaintiff had impleaded Defendant no.1 firm with Defendant no.2
and his wife Smt. Suman Aggarwal as Defendant no.3 as partners.
However on an application by Defendant no.3 under Order 1 Rule 10
CPC vide order of Ld. Predecessor's Court dated 17.05.2024 she was
dropped from the array of defendants. In the same application Smt.
Suman Aggarwal apprised the Court that Mr. Krishan Kumar Aggarwal is
the partner. As such vide the same order Mr. Krishan Kumar Aggarwal
was impleaded as Defendant no.3.
4. Plaintiff thereafter filed an Order 1 Rule 10 CPC application for
impleadment of Defendant no.4 Mr. Rakesh Maiti, proprietor of a shop
M/s Student Gallery at Howrah, West Bengal for impleadment as a co-
defendant no. 4 which was allowed by Ld. Predecessor on 11.09.2024.
However, in so far as no invoice was drawn by the plaintiff against this
Defendant no.4 and hence plaintiff had no cause of action against him.
Accordingly, vide order of this Court dated 10.01.2025 from the array of
defendants with a permission that if considered necessary Defendant no.4
may be called as a witness by the plaintiff.
CS Comm No.1442/2023 page 2
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
5. Case of the plaintiff on merits is that in the course of business Defendant
no.1 through Defendant no.2 approached the plaintiff company for
purchase of books which were sold and supplied through invoices with
provision of credit period of 180 days whereafter 18% interest was
leviable. It was also provided that books will not be taken back if they are
found to be soiled, damaged and unsaleable. It was further provided that
in case of any short supply the intimation was supposed to be sent within
3 days of receipt of books. It is further mentioned that in case any
payment is made by defendant in cash it was supposed to be done under a
signed receipt and that all disputes would be covered under jurisdiction of
Courts in Delhi. The terms were accepted by the defendant and unsold
books were agreed to be received back on or by 30th September each year
qua the sales carried out in the previous year but there was a 10% cap on
the return of the books.
6. It is pleaded that the defendants were not clearing the outstanding balance
regularly and as on 11.12.2020 the debit balance swelled to around Rs. 53
lakhs. The employee of the plaintiff got in touch with Defendant no.2 for
clearing the dues and on 16.12.2020 plaintiff was assured that the balance
of Rs.50,45,335/- would be cleared. The defendant sought adjustment of
Rs.5,57,800/- including a sum of Rs.2.50 lakhs in the name of cash
adjustment to the school where plaintiff's books were sold by the
defendants. Resultantly, defendants issued cheques worth Rs.44,87,535/-
with assurance that either they will transfer the money by way of RTGS or
the 7 cheques can be presented on due dates.
7. The 7 cheques cumultatively valuing Rs.44,87,535/- were drawn from the
account of defendant no. 1 firm. It is pleaded that the entire due of
Rs.44,87,535/- were cleared through RTGS and these cheques but
subsequently between 10.06.2020 to 10.05.2021 defendant placed further
CS Comm No.1442/2023 page 3
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
orders for supply of books which was carried out through due invoices
numbering 97 having cumulative value of Rs.86,16,806/- (although plaint
is silent in this regard). The supplies were made either to the defendant or
to defendant's client M/s Student Gallery against receipts and duly signed
acknowledgements apart from transport receipts.
8. In para 9 of the plaint plaintiff has displayed a table of invoices issued
between 11.06.2020 and 14.05.2021 with the value of each invoice, due
date of payment with 180 days credit apart from delay of no. of days in
making payment and consequent interest levied on delay of payment of
each bill which added up to Rs.39,53,478/-.
9. It is pleaded that last payment of Rs. 2 lakh was made by defendant on
22.06.2021 by RTGS leaving the debit balance to Rs.84,16,806/-. Plaintiff
requested the defendant to clear the above dues but no payment was
made. Planitiff was constrained to issue legal demand notice on
16.01.2023 which was duly served upon the defendant. Defendants
assured on phone that dues will be cleared but still neither the legal notice
was replied nor complied. Consequently, the plaintiff was constrained to
approach Central DLSA for Pre-Institution Mediation under Section
12A of Commercial Courts Act, 2015 where defendant did not
participate and Non-Starter Report dated 21.09.2023 was issued. In this
backdrop suit in hand is fiiled for following reliefs:
Prayer:
1. A Decree for a sum of Rs.84,17,806/- (Rupees Eighty Four Lac Seventeen
Thousand Eight Hundred and Six Only) be passed in favour of the Plaintiff
and against the Defendants by this Hon'ble Court to pay the amount jointly &
severally.
2. A Decree for a sum of Rs.39,53,478/- (Rupees Thirty Nine Lac Fifty Three
Thousand Four Hundred and Seventy Eight Only) being interest amount
calculated @18% PA on the invoices outstanding from the due date of each
invoices as mentioned in Para No-9, be passed in favour of the Plaintiff and
against the Defendants by this Hon'ble Court to pay the amount jointly &
severally.
CS Comm No.1442/2023 page 4
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
3. A Decree may kindly be issued for Pendente-lite & future interest @18% per
annum on the decreetal amount, in favour of the Plaintiff and against the
Defendants to pay jointly & severally, till the realization of the decreetal
amount.
4. To pass an order for Cost of the suit be awarded in favour of the Plaintiff and
against the Defendants to pay jointly & severally.
5. To pass any other order or further orders decreed fits & proper in the facts
and circumstances of the case against the Defendants.
10.Summons of the suit was served upon the defendant on 29.11.2023 and
they entered appearance through Sh. Shambhu Kumar, Advocate on
07.12.2023. Defendant no. 1 and 2 herein filed a joint WS while newly
added Defendant no.3 chose not to file any WS and chose not to even
adopt WS of Defendant no.1 and Defendant no.2.
Defendant no. 1 and 2's Case:
11.In their WS Defendant no.1 and Defendant no.2 prayed for dismissal of
the suit on the ground that this Court does not have territorial jurisdiction
to try this suit. It is pleaded that the plaint does not comply Order 7 Rule
2 CPC and also does not disclose specified value. Dismissal of the suit is
also prayed for misjoinder of parties i.e. impleadment of Smt. Suman
Aggarwal. As detailed supra she was dropped from the array of
defendants.
12.Another objection taken is that defendants are not liable to pay any money
qua the books delivered to M/s Student Gallery. It is also claimed that the
value of the suit does not match with the value of the legal demand notice.
Objection qua non-filing of certificate under Section 65B of Indian
Evidence Act is also taken.
13.In its preliminary submissions it is claimed that Defendant no.1 is a duly
registered partnership firm with Defendant no.2 as one of its partners. It is
admitted that they are in the business of trading, stocking and distribution
of educational books and have business relations with plaintiff since 2013.
They started doing business with the plaintiff after the planitiff's sales
CS Comm No.1442/2023 page 5
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
executives represented that plaintiff is one of the reputed and leading
suppliers of books in the country. Defendant started placing orders from
24.04.2013 onwards from their Howrah, West Bengal address. It is
submitted that all the books were dispatched by the plaintiff from their
Kolkata, West Bengal address to the defendants and part payments were
made by the defendants to the plaintiff at plaintiff's bankers i.e. M/s
Indian Bank at Kolkata, West Bengal.
14.It is pleaded that in May 2020 defendant started receiving compliants qua
inferior quality and improper printing of the books with poor binding.
Consequently, a meeting was held between the parties in December 2020
where plaintiff was conveyed that such inferior and sub-standard books
will not be accepted and the defendant will severe commercial relations
with the plaintiff. Defendant admits paying Rs. 40 lakhs between
29.12.2020 to 28.04.2021 to the plaintiff by way of cheques and RTGS. It
is pleaded that a credit note dated 28.12.2020 was also issued by plaintiff.
Although the WS is silent the same is found to be valued Rs.73,549/-.
15.It is pleaded that in June 2021 as well defendant received several
complaints qua the quality of the books and the employees of the plaintiff
agreed to take them back. The last payment made by the defendant was of
Rs.2 lakhs on 22.06.2021. It is pleaded that the entire books supplied by
the plaintiff to the defendant was of sub-standard quality and deserved to
be either replaced or responded by issuance of a credit note of even
amount. Plaintiff is said to have issued several credit notes between June
2021 to January 2022 but details thereof is not mentioned in the WS. It is
mentioned that even in the ledger address of the plaintiff is shown to be of
Kolkata.
16.In their reply on merits to the plaintiff's case it is not denied that plaintiff
is a duly incorporated company and is in the business of publication and
CS Comm No.1442/2023 page 6
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
trading of books. No objection is raised qua authority of Mr. Arif Hussain,
Manager and AR in filing of the suit. It is denied that Defendant no.2
introduced himself as managing partner of defendant no. 1 firm while
claiming that they have branches around several schools and educational
institutions. Defendants deny that they are prominent book sellers and
have good clientage in various schools. It is denied that a phase of the
defendant company are handled by Defendant no.1. It is denied that there
was an understanding of 180 credit period or that 18% interest was
leviable thereafter. It is also denied that defendant was supposed to inform
about short supply within 3 days or that plaintiff would receive return of
only 10% of the entire sale that too if it is not damaged or soiled or is for
any other reason in unsaleable condition. It is not specifically denied that
books were supposed to be returned by 30th September of the succeeding
month. It is also not denied that as on 11.12.2020 there was a debit
balance of Rs.53 lakhs. It is not denied that defendant sought adjustment
of Rs.5,57,800/- and the admitted debit balance was reduced to
Rs.44,87,535/-. It is not denied that defendants promised to clear the dues
by way of cheque/RTGS. It is not denied that the defendant cleared the
entire dues by cheque and RTGS. It is not denied that between 10.06.2020
and 10.05.2021 defendant carried out purchase of goods worth
Rs.86,16,806/-. It is also not denied that several consignments were sent
to M/s Student Gallery as per directions of the defendant. the emails sent
by the defendant to the plaintiff for purchase of goods, the transit
invoices, acknowledgements etc., have also not been denied.
17.The WS does not deny the calculation of the plaintiff of interest
component of Rs.39,53,478/- apparently because this table was introduced
in the second amendment, however, opportunity was granted to the
defendant. The WS does not deny the debit balance of Rs.84,16,806/-. It is
CS Comm No.1442/2023 page 7
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
denied that plaintiff requested the defendants to clear the outstanding
dues. Interestingly, defendants do not deny receipt of legal demand notice
dated 17.01.2023 or the tracking report. It is nowhere pleaded that they
ever replied this notice. Defendants do not deny issuance and service of
pre-institution mediation notice. All that is stated is that the amount in
legal notice and the suit do not tally. The WS do not deny that the suit
amount of Rs.1,23,71,284/- constitutes principal Rs.84,16,806/-, pre-suit
interest Rs.39,53,478/- and qua preinstitution mediation Rs.1,000/-. With
these pleas dismissal of the suit is prayed.
18.Affidavit of admission denial filed alongwith the WS is not as per format
provided under Order 11 Rule 4 (3) CPC. Also no reason is cited for
denial of documents as per Order 11 Rule 4 (5) CPC. The body of the
affidavit has not been signed at the end of the text but only the verification
is signed. No document other than partnership deed is placed on record.
19.No WS was filed by Defendant no. 3 Sh. Krishan Kumar Aggarwal.
Replication
20.No separate replication has been filed.
21. Out of the pleadings following issues were identified by this Court on
10.01.2025:
Issues:
1. Whether this Court has no territorial jurisdiction to try this suit? OP
Parties.
2. Whether the plaintiff is entitled to a decree for recovery of Rs.
1,23,71,284/- alongwith interest @ 18% per annum? OPP
3. Relief.
Evidence
22. Evidence in this case was ordered to be recorded before Sh. Manish
Malik, Advocate, Ld. LC as per protocol created by this Court under
Order 18 Rule 4 CPC read with Order 15A Rule 6(l) and (o) CPC as
applicable to Commercial suits for the sake of timely disposal of this case.
CS Comm No.1442/2023 page 8
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
Plaintiff's Evidence
23. To prove its case plaintiff company examined PW1 Asif Hussain, its AR
and Manager Credit Control. Vide affidavit Ex.PW1/A he deposed on
the lines of plaint and exhibited following documents:
1. Certificate of incorporation of the plaintiff company is exhibited as Ex.Pw-1/1 OSR
2. PAN account number (AAACV0230G) of the plaintiff company is exhibited as ExPw-1/2.
3. Certified true copy of resolution passed by the board of directors of the plaintiff company
held on 19.10.2021 in favour of PW1 is exhibited as ExPw-1/3.
4. The certificate U/s 65B of I.E.A is exhibited as ExPw-1/4
5. GST Certificate of registration of defendant No. 1 downloaded from the website of GST is
exhibited as ExPw-1/5 (4 pages)
6. Emails dated 11.12.2020 to me as well as other employees of the plaintiff company and
reply from M Rahman is exhibited as ExPw-1/6 colly (2 pages)
7. Email dated 16.12.2020 by Sujit Dey to me as well as other employees of the plaintiff
company along with Photocopy of attachments is exhibited as ExPw-1/7 (5 pages)
8. Purchase order via Email of Defendant No.1 dated 10.06.2020 is exhibited as Ex.Pw-1/8
9. Bill of supply through Invoice No. SIVE-70-20-00251 dated 11.06.2020 is exhibited as
ExPw-1/9
10. Purchase order via Email of Defendant No.1 dated 06.06.2020, is exhibited as ExPw-1/10
11. Bill of supply through Invoice No. SIVE-70-20-00299 dated 17.06.2020 which is exhib-
ited as ExPw-1/11
12. Purchase order via Email of Defendant No.1 dated 24.06.2020 is exhibited as ExPw-1/12
13. Bill of supply through Invoice No. SIVE-70-20-00376 dated 24.06.2020 is exhibited as
ExPw-1/13
14. Bill of supply through Invoice No. SIVE-70-20-00378 dated 24.06.2020 is exhibited as
ExPw-1/14
15. Bill of supply through Invoice No. SIVE-70-20-00386 dated 25.06.2020 is exhibited as
ExPw-1/15
16. Purchase order via Email of Defendant No.1 dated 18.06.2020, is exhibited as ExPw-1/16
17. Bill of supply through Invoice No. SIVE-70-20-00466 dated 22.07.2020 is exhibited as
ExPw-1/17
18. Sales order bearing No. 00383 dated 03.09.2020 is exhibited as ExPw-1/18
19. Bill of supply through invoice no. SIVE-70-20-00491 dated 08.09.2020 is Ex.PW-1/19
20. Purchase order Via Email dated 24.11.2020 of defendant no. 1 is Ex.PW-1/20.
21. Bill of supply through invoice no. SIVE-70-20-00622 dated 17.12.2020 is Ex.PW-1/21.
22. Purchase order Via Email dated 09.12.2020 of defendant no. 1 is Ex.PW-1/22.
23. Bill of supply through invoice no. SIVE-70-20-00623 dated 17.12.2020 is Ex.PW-1/23.
24. Purchase order Via Email dated 11.12.2020 of defendant no. 1 is Ex.PW-1/24.
25. Bill of supply through invoice no. SIVE-70-20-00632 dated 19.12.2020 is Ex.PW-1/25.
26. Purchase order Via Email dated 16.12.2020 of defendant no. 1 is Ex.PW-1/26.
27. Bill of supply through invoice no. SIVE-70-20-00635 dated 21.12.2020 is Ex.PW-1/27.
28. Purchase order Via Email dated 05.01.2021 of defendant no. 1 is Ex.PW-1/28.
29. Bill of supply through invoice no. SIVE-70-20-00720 dated 05.01.2021 is Ex.PW-1/29
(running into two pages)
30. Purchase order Via Email dated 06.01.2021 of defendant no. 1 is Ex.PW-1/30.
31. Bill of supply through invoice no. SIVE-70-20-00732 dated 06.01.2021 is Ex.PW-1/31.
CS Comm No.1442/2023 page 9
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
32. Purchase order Via Email dated 07.12.2021 of defendant no. 1 is Ex.PW-1/32.
33. Bill of supply through invoice no. SIVE-70-20-00737 dated 07.01.2021 is Ex.PW-1/33.
34. Purchase order Via Email dated 09.01.2021 of defendant no. 1 is Ex.PW-1/34.
35. Bill of supply through invoice no. SIVE-70-20-00755 dated 11.01.2021 is Ex.PW-1/35
(running into three pages).
36. Bill of supply through invoice no. SIVE-70-20-00760 dated 12.01.2021 is Ex.PW-1/36.
37. Purchase order Via Email dated 11.01.2021 of defendant no. 1 is Ex.PW-1/37.
38. Bill of supply through invoice no. SIVE-70-20-00761 dated 12.01.2021 is Ex.PW-1/38.
39. Purchase order Via Email dated 12.01.2021 of defendant no. 1 is Ex.PW-1/39.
40. Bill of supply through invoice no. SIVE-70-20-00762 dated 12.01.2021 is Ex.PW-1/40.
41. Purchase order Via Email dated 13.01.2021 of defendant no. 1 is Ex.PW-1/41.
42. Bill of supply through invoice no. SIVE-70-20-00776 dated 14.01.2021 is Ex.PW-1/42.
43. Purchase order Via Email dated 13.01.2021 of defendant no. 1 is Ex.PW-1/43.
44. Bill of supply through invoice no. SIVE-70-20-00779 dated 14.01.2021 is Ex.PW-1/44.
45. Purchase order Via Email dated 13.01.2021 of defendant no. 1 is Ex.PW-1/45.
46. Bill of supply through invoice no. SIVE-70-20-00790 dated 14.01.2021 is Ex.PW-1/46.
(running into two pages)
47. Sales order no. 00521 dated 18.12.2020 generated by the plaintiff in name of students gal-
lary is Ex.Pw-1/47.
48. Purchase order no. 346 dated 11.12.2020 issued by the students gallary is Ex.Pw-1/48.
49. Bill of supply through invoice no. SIVE-70-20-00817 dated 16.01.2021 is Ex.PW-1/49.
50. Purchase order Via Email dated 19.01.2021 of defendant no. 1 is Ex.PW-1/50. (running
into two pages).
51. Bill of supply through invoice no. SIVE-70-20-00845 dated 19.01.2021 is Ex.PW-1/51.
(running into three pages)
52. Purchase order Via Email dated 19.01.2021 of defendant no. 1 is Ex.PW-1/52.(running
into two pages)
53. Bill of supply through invoice no. SIVE-70-20-00857 dated 21.01.2021 is Ex.PW-1/53.
54. Purchase order Via Email dated 21.01.2021 of defendant no. 1 is Ex.PW-1/54.
55. Bill of supply through invoice no. SIVE-70-20-00879 dated 22.01.2021 is Ex.PW-1/55.
56. Purchase order Via Email dated 21.01.2021 of defendant no. 1 is Ex.PW-1/56.
57. Bill of supply through invoice no. SIVE-70-20-00888 dated 22.01.2021 is Ex.PW-1/57.
(running into two pages).
58. Purchase order Via Email dated 25.01.2021 of defendant no. 1 is Ex.PW-1/58.
59. Bill of supply through invoice no. SIVE-70-20-00911 dated 25.01.2021 is Ex.PW-1/59.
60. Purchase order Via Email dated 25.01.2021 of defendant no. 1 is Ex.PW-1/60.
61. Purchase order Via Email dated 21.01.2021 of defendant no. 1 is Ex.PW-1/61.
62. Bill of supply through invoice no. SIVE-70-20-00921 dated 27.01.2021 is Ex.PW-1/62.
(running into three pages).
63. Purchase order Via Email dated 14.01.2021 of defendant no. 1 is Ex.PW-1/63.
64. Bill of supply through invoice no. SIVE-70-20-00922 dated 27.01.2021 is Ex.PW-1/64.
65. Purchase order Via Email dated 27.01.2021 of defendant no. 1 is Ex.PW-1/65.
66. Bill of supply through invoice no. SIVE-70-20-00936 dated 28.01.2021 is Ex.PW-1/66.
(running into two pages)
67. Bill of supply through invoice no. SIVE-70-20-00945 dated 28.01.2021 is Ex.PW-1/67.
68. Bill of supply through invoice no. SIVE-70-20-00946 dated 28.01.2021 is Ex.PW-1/68.
69. Bill of supply through invoice no. SIVE-70-20-00954 dated 29.01.2021 is Ex.PW-1/69.
(running into two pages).
70. Purchase order Via Email dated 29.01.2021 of defendant no. 1 is Ex.PW-1/70.
71. Bill of supply through invoice no. SIVE-70-20-00955 dated 29.01.2021 is Ex.PW-1/71.
CS Comm No.1442/2023 page 10
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
72. Purchase order Via Email dated 28.01.2021 of defendant no. 1 is Ex.PW-1/72.
73. Tax invoice no. TIVE-70-20-00033 dated 29.01.2021 is Ex.PW-1/73.(running into two
pages)
74. Tax invoice no. Ex.PW-1/74. TIVE-70-20-00034 dated 29.01.2021 is Ex.PW-1/74
75. Tax invoice no. TIVE-70-20-00035 dated 29.01.2021 is Ex.PW-1/75.
76. Tax invoice no. TIVE-70-20-00036 dated 29.01.2021 is Ex.PW-1/76.
77. Bill of supply through invoice no. SIVE-70-20-00959 dated 29.01.2021 is Ex.PW-1/77.
(running into three pages)
78. Tax invoice no. TIVE-70-20-00037 dated 30.01.2021 is Ex.PW-1/78. (running into two
pages).
79. Purchase order Via Email dated 30.01.2021 of defendant no. 1 is Ex.PW-1/79.
80. Bill of supply through invoice no. SIVE-70-20-00990 dated 30.01.2021 is Ex.PW-1/80.
81. Purchase order Via Email dated 01.02.2021 of defendant no. 1 is Ex.PW-1/81.
82. Bill of supply through invoice no. SIVE-70-20-01023 dated 03.02.2021 is Ex.PW-1/82.
83. Bill of supply through invoice no. SIVE-70-20-01024 dated 03.02.2021 is Ex.PW-1/83.
(running into two pages).
84. Bill of supply through invoice no. SIVE-70-20-01056 dated 05.02.2021 is Ex.PW-1/84.
(running into two pages)
85. Purchase order Via Email dated 28.01.2021 of defendant no. 1 is Ex.PW-1/85.
86. Bill of supply through invoice no. SIVE-70-20-01083 dated 06.02.2021 is Ex.PW-1/86.
87. Purchase order Via Email dated 09.02.2021 of defendant no. 1 is Ex.PW-1/87.
88. Bill of supply through invoice no. SIVE-70-20-01131 dated 10.02.2021 is Ex.PW-1/88.
89. Purchase order Via Email dated 08.02.2021 of defendant no. 1 is Ex.PW-1/89.
90. Bill of supply through invoice no. SIVE-70-20-01132 dated 10.02.2021 is Ex.PW-1/90.
91. Bill of supply through invoice no. SIVE-70-20-01288 dated 18.02.2021 is Ex.PW-1/91.
92. Purchase order Via Email dated 28.01.2021 of defendant no. 1 is Ex.PW-1/92. (objected
as the document is incomplete)
93. Bill of supply through invoice no. SIVE-70-20-01349 dated 22.02.2021 is Ex.PW-1/93.
94. Bill of supply through invoice no. SIVE-70-20-01462 dated 26.02.2021 is Ex.PW-1/94.
95. Purchase order Via Email dated 26.02.2021 of defendant no. 1 is Ex.PW-1/95.
96. Bill of supply through invoice no. SIVE-70-20-01478 dated 26.02.2021 is Ex.PW-1/96.
97. Purchase order Via Email dated 24.02.2021 of defendant no. 1 is Ex.PW-1/97.
98. Bill of supply through invoice no. SIVE-70-20-01479 dated 26.02.2021 is Ex.PW-1/98.
99. Purchase order Via Email dated 08.02.2021 of defendant no. 1 is Ex.PW-1/99.
100. Bill of supply through invoice no. SIVE-70-20-01572 dated 02.03.2021 is Ex.PW-
1/100.
101. Purchase order Via Email dated 08.03.2021 of defendant no. 1 is Ex.PW-1/101.
102. Bill of supply through invoice no. SIVE-70-20-02553 dated 26.03.2021 is Ex.PW-
1/102.
103. Sales order no. 01689 dated 08.03.2021 generated by the plaintiff in name of defendant
no. 1 is Ex.Pw-1/103.
104. Bill of supply through invoice no. SIVE-70-20-02578 dated 26.03.2021 is Ex.PW-
1/104.
105. Sales order no. 1850 dated 13.03.2021 generated by the plaintiff order by defendant no. 1
ship to students gallary is Ex.Pw-1/105.
106. Bill of supply through invoice no. SIVE-70-20-02579 dated 26.03.2021 is Ex.PW-
1/106. (running into two pages)
107. Bill of supply through invoice no. SIVE-70-20-02580 dated 26.03.2021 is Ex.PW-
1/107.
108. Sales order no. 1849 dated 13.03.2021 generated by the plaintiff order by defendant no. 1
ship to students gallary is Ex.Pw-1/108.
CS Comm No.1442/2023 page 11
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
109. Bill of supply through invoice no. SIVE-70-20-02581 dated 26.03.2021 is Ex.PW-
1/109.
110. Sales order no. 1463 dated 02.03.2021 generated by the plaintiff order by defendant no. 1
ship to students gallary is Ex.Pw-1/110.
111. Sales order no. 1742 dated 10.03.2021 generated by the plaintiff order by defendant no. 1
is Ex.Pw-1/111.
112. Tax invoice no. TIVE-70-20-00116 dated 26.03.2021 is Ex.PW-1/112. (running into two
pages)
113. Purchase order Via Email dated 10.03.2021 of defendant no. 1 is Ex.PW-1/113.
114. Bill of supply through invoice no. SIVE-70-20-02583 dated 26.03.2021 is Ex.PW-
1/114.
115. Sales order no. 1759 dated 10.03.2021 generated by the plaintiff order by defendant no. 1
is Ex.Pw-1/115.
116. Purchase order Via Email dated 16.03.2021 of defendant no. 1 is Ex.PW-1/116.
117. Bill of supply through invoice no. SIVE-70-20-02584 dated 26.03.2021 is Ex.PW-
1/117.
118. Sales order no. 1941 dated 16.03.2021 generated by the plaintiff order by defendant no. 1
is Ex.Pw-1/118.
119. Purchase order Via Email dated 09.03.2021 of defendant no. 1 is Ex.PW-1/119.
120. Bill of supply through invoice no. SIVE-70-20-02585 dated 26.03.2021 is Ex.PW-
1/120. (running into two pages)
121. Sales order no. 1745 dated 10.03.2021 generated by the plaintiff order by defendant no. 1
is Ex.Pw-1/121. (running into two pages)
122. Purchase order Via Email dated 24.02.2021 of defendant no. 1 is Ex.PW-1/122.
(running into two pages)
123. Bill of supply through invoice no. SIVE-70-20-02586 dated 26.03.2021 is Ex.PW-
1/123.
124. Sales order no. 1330 dated 24.02.2021 generated by the plaintiff order by defendant no. 1
which is Ex.Pw-1/124.
125. Purchase order Via Email dated 03.03.2021 and 11.12.2020 of defendant no. 1 are
Ex.PW-1/125.
126. Sales order no. 1501 dated 03.03.2021 generated by the plaintiff order by defendant no. 1
is Ex.Pw-1/126.
127. Bill of supply through invoice no. SIVE-70-20-02587 dated 26.03.2021 is Ex.PW-
1/127.
128. Purchase order Via Email dated 02.03.2021 of defendant no. 1 is Ex.PW-1/128.
129. Sales order no. 1491 dated 02.03.2021 generated by the plaintiff order by defendant no. 1
is Ex.Pw-1/129.
130. Bill of supply through invoice no. SIVE-70-20-02588 dated 26.03.2021 is Ex.PW-
1/130.
131. Purchase order Via Email dated 24.03.2021 of defendant no. 1 is Ex.PW-1/131.
(running into three pages)
132. Bill of supply/Transit Challan no. VE-DC-70-20-00358 dated 30.03.2021 reference in
voice no. SIVE-70-20-02589 is Ex.PW-1/132. (running into two pages)
133. Bill of supply through invoice no. SIVE-70-20-02589 dated 26.03.2021 is Ex.PW-
1/133.(running into two pages)
134. Purchase order Via Email dated 01.02.2021 of defendant no. 1 is Ex.PW-1/134.
135. Bill of supply through invoice no. SIVE-70-20-02592 dated 26.03.2021 is Ex.PW-
1/135.
136. Bill of supply through invoice no. SIVE-70-20-02610 dated 27.03.2021 is Ex.PW-
1/136.
CS Comm No.1442/2023 page 12
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
137. Bill of supply/ Transit Challan no. VE-DC-70-20-00357 dated 30.03.2021 reference in
voice no. SIVE-70-20-02756 is Ex.PW-1/137.
138. Bill of supply through invoice no. SIVE-70-20-02756 dated 29.03.2021 is Ex.PW-
1/138.
139. Purchase order Via Email dated 09.03.2021 of defendant no. 1 is Ex.PW-1/139.
140. Bill of supply through invoice no. SIVE-70-20-02998 dated 31.03.2021 is Ex.PW-
1/140.
24.In his cross-examination done by Ld. Counsel for Defendant no. 1 and
Defendant no. 2 Sh. Amit Sinha he stated that he is working with the
plaintiff company since September 2012. He could not disclose as to since
when both the plaintiff and the defendants have business relations. He
could not disclose the value of the total business carried out between
them. As per him defendant must have paid crores of rupees to the
plaintiff. He accepted that in the extracts of the board resolution
Ex.PW1/3 words commercial suit are not mentioned. He expressed
unawareness if defendant firm and M/s Student Gallery had business
relations. He admitted that plaintiff used to supply books to the defendant
from plaintiff's Kolkata Branch Office. He added that books were also
supplied from Noida warehouse. He denied that the books supplied to
Defendant no.1 are of inferior quality. He admitted that defendant used to
make payment to the plaintiff at Indian Bank, Kolkata. He accepted that
the supply order Ex.PW1/11 was not complied in totality through invoice
Ex.PW1/10 and that additional separate invoice was issued. He accepted
that in case goods are received by hand the details of the sitting agent will
not get mentioned in the invoice. He accepted that plaintiff was
maintaining a books of account of all the sales. He accepted that no
separate register has been filed to show particulars of goods ordered but
not supplied. As per him such details are maintained only for a period of
one month. The confirmation of books supplied used to be carried out
orally. He denied the suggestion that books supplied was of inferior
quality, improper printing and pagination. He also denied that defendant
CS Comm No.1442/2023 page 13
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
firm received compliants qua the quality of the books. He accepted that
Mr. Sujit Dey is Director Sales of the plaintiff and used to have meetings
with the defendant but he is not aware if any minutes were prepared. Due
adjustment was given to the defendant of around 2-3 lakhs after the
meeting. He stated that the return of the books was within the 10%
volume of the books sold. He denied that in the meeting held in December
2020 plaintiff agreed to receive back all the books which are of inferior
quality or would issue a credit note. He added that credit notes are issued
only after the books are delivered. He referred to 14 credit notes issued by
the plaintiff to the defendant between 28.12.2020 to 08.06.2022. He
denied that the ledger filed by the plaintiff is a fabricated and manipulated
document.
25.He accepted that plaintiff has not filed ledger of the period prior to 2012
even though business was carried out since 2005. He said that plaintiff has
other distributors in Kolkata and discount between 25%-45% was given to
distributors. The minimum discount otherwise was of 5% and it was
discretion of the plaintiff's management. He stated that the plaintiff has
received Rs.39.50 lakhs as against opening debit balance of
Rs.50,45,335/-. Plaintiff admits that defendant must have given some
payments to M/s Amayra, an admitted sister concern of plaintiff. He
accepted that ledger of M/s Amayra, has not been filed and as such he is
unable to give details of those payments.
26.PW1 accepted that defendant helped plaintiff to grow its business in
Howrah, West Bengal. He admitted that plaintiff has not filed proof of any
sale carried out by M/s Amayra to the defendant. He denied that plaintiff
has filed a false and fabricated claim.
27.Separate cross-examination of PW1 was carrued out by Sh. Gaganjyot
Singh, Advocate on behalf of Defendant no.3 wherein he stated that
CS Comm No.1442/2023 page 14
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
plaintiff's employees used to interact with Defendant no. 2 primarily.
Witness is unaware of any interaction carried out with Defendant no. 3.
Plaintiff expressed unawareness if they knew that Defendant no. 3 Mr.
Krishan Kumar Aggarwal was a partner at the time of filing of the suit. He
accepted that legal notice Ex.PW1/80 dated 17.01.2023 was not sent to
Defendant no.3. He also accepted that in the legal notice Defendant no. 2
is referred to as proprietor/Managing partner of Defendant no. 1. Upon
being confronted with purchase orders Ex.PW1/20, Ex.PW1/22,
Ex.PW1/24, Ex.PW1/26, Ex.PW1/30, Ex.PW1/32, Ex.PW1/37,
Ex.PW1/39, Ex.PW1/65 and Ex.PW1/125 witness denied that they were
issued by M/s Future books Pvt. Ltd. and not by defendant M/s Future
Partnership firm. He denied the suggestion that Defendant no. 3 is not
liable to make any payment to the plaintiff.
28.Second witness examined by plaintiff is PW2 Puneet Khanna, Manager
Legal of M/s Safexpress Private Ltd. In his statement given in the Court
he produced on record goods receipt/way bill pertaining to invoices
Ex.PW1/35, Ex.PW1/46, Ex.PW1/51, Ex.PW1/57, Ex.PW1/62,
Ex.PW1/66, Ex.PW1/77, Ex.PW1/84, Ex.PW1/86 and Ex.PW1/93 to
show that goods were supplied and delivered to the defendant. He has
exhibited them as Ex.PW2/1 to Ex.PW2/10.
29.In the cross-examination done on behalf of Defendant no.1 and Defendant
no.2 he stated that the goods receip/way bill exhibited by him were
booked from Noida, UP to Howrah, West Bengal.
30.No evidence was led by Defendant no.1 and Defendant no. 2 despite
opportunity.
31.No witness was examined also by Defendant no.3 moreover no WS has
been filed by Defendant no. 3.
CS Comm No.1442/2023 page 15
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
32. I have heard arguments of Sh. Narender Vashishta and Sh. Swarup
Sagar Roy, Ld. Counsels for plaintiff, Sh. Amit Sinha, Sh. Rupesh
Kumar and Sh. Ranjan Kumar Chaudhary, Ld. Counsels for
defendant no. 1 and 2 and Sh. Mohit Seth, Ld. Counsel for defendant
no. 3 and have perused the case file carefully.
33. Now I shall dispose of individual issues framed in this case.
Issue No. 1:
1. Whether this Court has no territorial jurisdiction to try this suit? OP Parties.
34.In order to show on record that this Court has territorial jurisdiction to try
this suit, plaintiff has dedicated para no. 16 of the plaint wherein it stated
that its registered office is in Central Delhi and that defendants used to
visit the plaintiff's office at Ansari Road, Daryaganj where the terms of
the contract were finalised. It is also stated that purchase orders were sent
via emails received at Daryaganj. It is also mentioned that payments were
received and cheques were encashed at Indian Bank, Chandni Chowk
account of plaintiff. Para 16 of the plaint reads as under:
16. Since the Plaintiff having the registered office situated within the territorial
jurisdiction of this Hon'able court and the Defendants visited and decided the
terms & condition of the business between them, which are mentioned in left hand
side of the bottom of the each invoices. That the Defendants placed the purchase
orders through various emails at the registered office of the Plaintiff to Mr. Amit &
Mr. Debo Jyoti ( who are looking Sales of North East India) and it was decided
that all the dispute are subject to Delhi Courts Jurisdiction exclusively and the
defendants had tendered the cheques and made on-line payment towards the
outstanding payment, which were receipt & deposited and en-cashed in the Indian
bank, Chandni Chowk branch account of the Plaintiff company, which is again
situated within the territorial jurisdiction of this Hon'able court. The Defendants
further promised to pay, as well as correspondence at registered office of the
Plaintiff Company from their office which is well with the jurisdiction of this
Hon'able court. Hence the whole /part cause of action having been arisen within
the territorial jurisdiction of this Hon'able court, hence this Hon'able Court has
jurisdiction to entertain and try the aforesaid suit.
35.While opposing this para in their WS defendant no. 1 and 2 raised the
objection as preliminary objection no. 1 with following words:
CS Comm No.1442/2023 page 16
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
Preliminary Objection No.1
1. The present plaint is not maintainable as this Hon'ble Court does not have the
requisite territorial jurisdiction to try the instant suit and is hit by the operation of
clauses (a), (b) and (c) of Section 20, CPC as none of the Defendants actually
reside or carries on business or personally works for gain within the jurisdiction
of the Hon'ble Court; and no cause of action either wholly or in part ever arose
within the jurisdiction of this Hon'ble Court. Hence the present plaint is liable to
be dismissed outrightly on this ground alone.
36.Reply to para 16 of the plaint qua territorial jurisdiction in the WS is also
reproduced hereunder for ready reference:
11. The contents of paragraph nos. 16 of the plaint under reply have been stated
in a manner so as to mislead this Hon'ble Court and therefore denied for being
wrong, frivolous, vague, baseless, meritless, concocted, imaginary and
misconceived. It is wrong and denied that whole/part of cause of action having
been arisen within the territorial jurisdiction of this Hon'ble Court, hence, this
Hon'ble Court has jurisdiction to entertain and try the aforesaid suit. It is
submitted in this regard that GST details associated with the GST number stated
in the invoice provide the address of Kolkata; the ledger account maintained by
the Plaintiff indicates address of Plaintiff at Kolkata and the goods were
dispatched and received at Kolkata.
37.Comparative reading and close scrutiny of the above rival pleadings
clearly show that the factual assertion in para 16 of the plaint qua
components showing accrual of part cause of action have not been denied
by the defendant as per Order 8 Rule 5 r/w Order 8 Rule 3A CPC and
proviso to Order 8 Rule 5 CPC. As per Order 8 Rule 5 CPC when read
in the context of the suit in hand categorically shows that the evasive
denial by the defendant shall lead to an inference that the defendant has
admitted the contents of the plaintiff's plaint. For ready reference Order 8
Rule 5 CPc and Order 8 Rule 3A CPC are reproduced hereunder:
Order 8 Rule 5 CPC: Specific Denial
1."Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of the defendant, shall be taken to
be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be
proved otherwise than by such admission.
Provided further that every allegation of fact in the plaint, if not denied in the
manner provided under rule 3A of this Order, shall be taken to be admitted except
as against a person under disability."
CS Comm No.1442/2023 page 17
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
Order 8 Rule 3A CPC: Denial by the defendant in suits before
Commercial Division of the High Court or the Commercial Court--
1. Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of
this Rule.
2. The defendant in his written statement shall state which of the allegations in
the particulars of plaint he denies, which allegations he is unable to admit or
deny, but which he requies the plaintiff to prove, and which allegations he
admits.
3. Where the defendant denies an allegation of fact in a plaint, he must state
his reasons for doing so and if he intends to put forward a different version
of events from that given by the plaintiff, he must state his own version.
4. If the defendant disputes the jurisdiction of the Court he must state the
reasons for doing so, and if he is able, give his own statement as to which
Court ought to have jurisdiction.
5. If the defendant disputes the plaintiff's valuation of the suit, he must state his
reasons for doing so, and if he is able, give his own statement of the value of
the suit."
38.In case titled Lohia Properties (P) Ltd., Tinsukia, Dibrugarh Assam
Vs. Atmaram Kumar, MANU/SC/0549/1993 dated 17.08.1993, Hon'ble
Supreme Court held as under:
13. What is stated in the above is, what amount to admit a fact on pleading
while Rule 3 of Order 8 requires that the defendant must deal specifically with
each allegation of fact of which he does not admit the truth.
14. Rule 5 provides that every allegation of fact in the plaint, if not denied in
the written statement shall be taken to be admitted by the defendant. What this
rule says is, that any allegation of fact must either be denied specifically or by
a necessary implication or there should be at least a statement that the fact is
not admitted. If the plea is not taken in thatmanner, then the allegation shall be
taken to be admitted.
39. In case titled Sh. Rajeev Tandon and Anr. Vs. Smt Rashmi Tandon, 2019
Latest Caselaw 1306 Del dated 28.02.2019 Hon'ble Delhi High Court held
that:
" The substance of the actual defence of the defendant from a perusal of the
written statement is that the property in question has been purchased from the
joint family fund obtained from the joint family business belonging to the
father of the parties. It is also stated that the suit property was brought from
the funds generated after disposal of the joint family property in which the
defendant had an equal share and entitlement. This is the sum and substance
of the defence raised by the defendant in her written statement. It is manifest
that the defence is vague, evasive and lacks material particulars. Under 8 Rule
3 CPC, a defendant is obliged to deal specifically with each allegation of fact
CS Comm No.1442/2023 page 18
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
of which he does not admit the truth. Similarly, under Order 8 Rule 4 CPC, if a
defendant denies an allegation of fact, he must not do so evasively but answer
the point of substance. In the present case, the denials are evasive and cannot
be said to be a specific response."
40. In case titled Thangam and Anr. Vs. Navamani Ammal, 2024 Latest
Caselaw 132 SC dated 04.03.2024 Hon'ble Supreme Court held that:
"Order 8 Rules 3 and 5 CPC clearly provides for specific admission and
denial of the pleadings in the plaint. A general or evasive denial is not
treated as sufficient. Proviso to Order 8 Rule 5 CPC provides that even the
admitted facts may not be treated to be admitted, still in its discretion the
Court may require those facts to be proved. This is an exception to the
general rule. General rule is that the facts admitted, are not required to be
proved."
41.The law in this regard is well settled. As far as territorial jurisdiction is
concerned, the governing law is Section 20 CPC. For ready reference the
same is reproduced hereunder:
Section 20 CPC: Other suits to be instituted where defendants
reside or cause of action arises
Subject to the limitations aforesaid, every suit shall be instituted in Court
within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or
(c) the cause of action, wholly or in part, arises.
1[* * *]
2[Explanation].-A corporation shall be deemed to carry on business at its sole
or principal office in [India] or, in respect of any cause of action arising at any
place where it has also a subordinate office, at such place.
(Emphasis Supplied)
42.The law on Section 20 CPC has been crystallised by Hon'ble SC on sale
of Goods Act is ABC Laminart Private Ltd. and Anr. Vs. A P Agencies,
Salem, 1989 Latest Caselaw 85 SC Hon'ble Supreme Court has ruled
CS Comm No.1442/2023 page 19
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
that in a contractual matter the jurisdiction of Court arises from four
aspects:
(1) Where defendant resides or voluntary works for gain.
(2) Where the Contract is entered;
(3) Where the Contract is to be performed;
(4) Where moneys have to be paid under the contract.
43.Appreciating the facts of this case in the light of the above legal position
shows that as far as the first component in the ABC Laminart judgment
shows that defendant is admittedly resident of Howrah, Kolkata but as
regards the second component i.e. place of entering of contract is
concerned, the factual pleas of the plaintiff that the contract was entered at
Daryaganj when the defendant visited the plaintiff company's registered
office and the terms of the contract was finalised have remained
uncontroverted and unchallenged, conferring jurisdiction on this Court.
The third component of execution of contract admittedly reveal that no
books were supplied from Delhi and all the supplies were made either
from Kolkata office of plaintiff or from Noida, UP. Even the invoices
were issued from Kolkata and Noida offices and not from Delhi but as
regards the 4th component qua demand of payment, general guidelines and
terms contained in each of the 97 invoices there is a stipulation which
reads "2.Outstation customers must pay by demand draft payable at New
Delhi". Furthermore clause 7 of all the invoices also carry the
endorsement "All disputes are subject to Delhi Courts Jurisdiction
exclusively".
44.Summing up the above position, plaintiff has been able to show that 2 of
the 4 components happened in Delhi i.e. entering of contract and demand
of payment apart from the stipulation that Courts at Delhi shall have
exclusive jurisdiction. In the light of the above, I have no hesitation in
CS Comm No.1442/2023 page 20
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
concluding that this Court does have territorial jurisdiction to try this suit.
This issue is answered in favour of plaintiff and against the
defendant.
Issue no. 2:
ii. Whether the plaintiff is entitled to a decree for recovery of Rs.
1,23,71,284/- alongwith interest @ 18% per annum? OPP
Admitted Facts:
45.As far as entitlement of the plaintiff to seek recovery of amount is
concerned, it would be handy to cull out facts admitted by both the sides
in pleadings, during evidence and at final arguments. It is admitted by
both the sides that they have business relations since 2012 whereunder
plaintiff has been selling and supplying goods to the defendant at Howrah,
West Bengal against purchase orders. It is admitted that there was a credit
period of 180 days thereafter 18% interest was leviable. It is also admitted
that there was a provision of return of both up to the extent of 10% of the
total sale. It is not the case of either of the sides that goods supplied were
not duly delivered to the defendant. It is also not the case of the defendant
that they made any payments which has not been credited into the ledger
maintained by the plaintiff.
46.Having admitted the business relations, sale and supply of books and the
fact that there was a debit balance of Rs.84,16,806/-, defendant has not
left anything for the plaintiff to prove. The only defence taken by the
defendant is that the goods supplied were of inferior quality and that
plaintiff should either take the entire stock back or should issue a credit
note of the entire unpaid balance.
47.Upon being asked Ld. Counsel for defendant accepts that no specific
evidence or document has been filed to show that the books were of
CS Comm No.1442/2023 page 21
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
inferior quality or there were misprints or there were bleeding colours.
The only document filed alongwith the WS was partnership deed of
Defendant no. 1 as per which Defendant no. 2 and Defendant no. 3 are its
partners. In the absence of any material in the form of document or a third
party witness or a report from any expert or for that matter any evidence
that the books were supposed to be of a particular quality, the mere bald
submissions that the books were of poor quality cannot unburden the
defendant from the financial liability to pay for the value of books
purchased.
48. PW1 in his cross-examination has categorically stated that due credit
invoices were issued to the defendant qua the books, as and when
returned. PW1 denied the right of the defendant to seek credit note of the
entire debit balance i.e. Rs.84,16,806/- when no books worth this value or
any fraction thereof are claimed to have been returned. The law in this
regard is well settled. The onus of return of goods rests on the defendant
as per Section 105 of Bhartiya Sakshya Adhiniyam, 2023 (Section 102
of Indian Evidence Act). For ready reference the law is reproduced
hereunder:
Section 105 of Bhartiya Sakshya Adhiniyam, 2023 (Section 102 of
Indian Evidence Act) : On whom burden of proof lies
The burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side.
Illustration:
(a) A sues B for land of which B is in possession, and which, as A
asserts, was left to A by the will of C, B's father.
If no evidence were given no either side, B would be entitled to retain his
possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by
fraud, which A denies.
CS Comm No.1442/2023 page 22
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
If no evidence were given on either side, A would succeed, as the bond is
not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
49. In case titled Anil Rishi Vs. Gurbaksh Singh, 2006 Latest Caselaw 269
SC dated 02.05.2006 Hon'ble Supreme Court held as under:
"The suit will fail If both the parties do not adduce any evidence, in view of
Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would
be on the party who asserts the affirmative of the issue and it rests, after
evidence is gone into, upon the party against whom, at the time the question
arises, judgment would be given, if no further evidence were to be adduced by
either side."
50. As per settled legal proposition, as provided under Section 106 of
Bhartiya Sakshya Adhiniyam, 2023 (Section 103 of Indian Evidence
Act) the onus of proving the fact of return of goods and issuance of
claimed credit notes by the plaintiff solely lies on the defendant. For ready
reference the same is reproduced hereunder:
Section 106 of Bhartiya Sakshya Adhiniyam, 2023 : Burden of Proof
as to particular fact
The burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence unless it is provided by any
law that the proof of that fact shall lie on any particular person.
Illustration:
(a) A prosecutes B for theft, and wishes the Court to believe that B
admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was
elsewhere. He must prove it.
51. In case titled Rajendra Singh Vs. State of UP and another, 2007 Latest
Caselaw 602 SC Hon'ble Supreme Court held as under:
8. "Section 103 of the Evidence Act says that the burden of proof as to
any particular fact lies on that person who wishes the court to believe
in its existence, unless it is proved by any law that the proof of that fact
lie on any particular person. The second illustration to Section 103
reads as under:
"B wishes the Court to believe that at the time in question, he was
elsewhere. He must prove it."
CS Comm No.1442/2023 page 23
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
52. In case titled Government of NCT of Delhi and Ors. Vs. S.D. Sharma,
2015 Latest Caselaw 1910 Del Hon'ble Delhi High Court held as under:
9. "As per the case of the prosecution, the Respondent continued to
remain absent from duty wilfully and unauthorisedly w.e.f 23.12.93 to 01.02.2000 Under Section 101 read with Section 103, Indian Evidence Act, 1872, the burden of proof to prove the absence of the respondent lies on the petitioner. It is a settled legal position that preponderance of the evidence, also known as balance of probabilities is the standard of proof required in most civil cases, unlike criminal cases where the prosecution is required to prove the case beyond reasonable doubt. The standard is met if the proposition is more likely to be true than untrue. Effectively, when there is a chance greater than 50 percent for the proposition to be true. (Ref. Lord Denning, in Miller v. Minister of Pensions 1947 2 All ER 372.) Admittedly, there was not a single prosecution witness brought by the petitioners to prove the document relied upon by them. Thus the petitioners have clearly failed to discharge their burden of proof."
53.This Court also do not find any strength in the plea of Ld. Counsel for Defendant no. 3 that no liability can be fastened on Defendant no. 3 since either in the plaint or during the course of trial it is nowhere mentioned that plaintiff or its employees had any interaction with Defendant no. 3. Once it has come on record by way of a registered sale deed filed on record by the defendant themselves Defendant no. 2 and 3 are partners of Defendant no. 1, by combined reading of Indian Partnership Act, 1932 and Order 30 CPC Defendant no. 3 cannot escape from the joint and several liability of the suit claim payable to the plaintiff.
54.In the absence thereof on behalf of all the three defendants that the quality of books supplied was poor and for that reason they are not liable to pay Rs.84,16,806/- this issue is answered in favour of plaintiff and against the defendant.
Interest
55. Plaintiff has claimed interest @ 18% per annum. The interest is payable as per Section 34 CPC. For ready reference, Section 34 CPC is reproduced hereunder:
CS Comm No.1442/2023 page 24
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
Section 34 CPC: Interest
(i)"Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6% per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the court thinks fit.
(ii).Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate or interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.
Explanation (i) In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970. Explanation (ii) For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
Where such a decree is silent with respect to the payment of further interest (on such principal sum) from the date of the decree to the date of the payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.
(Emphasis Supplied)
56. Section 34 CPC provides that plaintiff will be entitled the interest at the rate at which Court finds reasonable. For a general suit, the rate of interest prescribed is 6% and for commercial suit, the Parliament promulgates that rate of interest may increase from 6% to a rate which is found reasonable. Plaintiff is accordingly entitled to only the rate at which RBI has issued Circular for Commercial suits.
57. As far as the interest is concerned, rate applicable to Commercial transaction shall be payable. As per RBI notification dated 30.08.2022 issued vide Press Release no.2022-2023/794 whereby advisory issued by RBI to Schedule Commercial banks of accepting deposit rates @ 9.05% per annum.
CS Comm No.1442/2023 page 25
Viva Books Pvt. Ltd. Vs. M/s Future and Ors.
Relief
58.In view of the above, suit of the plaintiff is decreed with cost jointly and severally against all the three defendants for Rs.84,16,806/- + Rs.14,48,613/- (interest @9% w.e.f. 01.12.2021 (as per last sale) to 30.10.2023 i.e. date of filing of the suit = Rs.98,65,419/- and further 9% interest on Rs.98,65,419/- pendente lite and till realization. Plaintiff's Lawyer's fees is assessed as Rs. 45,000/-.
59.Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by SURINDER SURINDER S RATHI S RATHI Date:
2025.05.21 16:53:44 +0530 (SURINDER S. RATHI) District Judge, Commercial Court -11 Central District, THC Delhi/15.05.2025 CS Comm No.1442/2023 page 26 Viva Books Pvt. Ltd. Vs. M/s Future and Ors.