Delhi District Court
Mmkp Dhan Sanchay Nidhi Ltd vs Vivek Yadav on 16 April, 2025
IN THE COURT OF MS. SHILPI SINGH
ACJ-cum-CCJ-cum-ARC, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
In the matter of:
Suit no. 868/2024
CNR No. DLST03-001455-2024
MMKP DHAN SANCHAY NIDHI LTD.
Through its Director
Office at H-3, Ground Floor,
Arjun Nagar, Safdarjung Enclave
New Delhi-29
...............Plaintiff
Versus
VIVEK YADAV
S/o Sh. Dharamvir Yadav
R/o B057, Hamella Street, Eden Estate,
BPTP, Sector-81, Faridabad,
Haryana 121002
.......Defendant
Date of Institution : 21.09.2024
Date of Pronouncement : 16.04.2025
Decision : Dismissed.
CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 1 of 9
Digitally
signed by
SHILPI
SHILPI SINGH
SINGH Date:
2025.04.16
16:36:21
+0530
SUIT FOR RECOVERY OF RS.1,28,138/- (RUPEES ONE LAC TWENTY
EIGHT THOUSAND ONE HUNDRED THIRTY EIGHT ONLY) ALONG
WITH FUTURE INTEREST AND COST.
EX PARTE JUDGMENT:
1.Succinctly, the case of the plaintiff is that the plaintiff is a private company registered with the Registrar of Companies at New Delhi, having its registered office at H-3, Ground Floor, Arjun Nagar, Safdarjung Enclave, New Delhi-110029. It is submitted that the plaintiff company is established to render financial assistance to its members and enable and encourage members to save money etc. The certificate of incorporation is placed on record as Annexure-1. The plaintiff company is pursuing the present suit through its AR/director who is stated to be conversant with the facts and circumstances of the case. It is alleged on 31.10.2023, the defendant approached the plaintiff for availing loan/credit facility of Rs. 1,20,000/- (hereinafter called the loan amount ) and promised to repay the same in 6 months. At request of the defendant, the plaintiff company agreed to grant the loan amount and the same was sanctioned vide loan agreement placed on record as Annexure-3 and the loan amount was paid through cheque bearing no. 000495. The defendant executed a promissory note acknowledging the receipt of loan amount through the abovementioned cheque with a promise to repay the same in 6 installments. The plaintiff company alleges that the defendant committed series of default in repayment and as per the ledger account maintained by the plaintiff company for the defendant, a sum of Rs. 1,28,138/- (hereinafter called the recovery amount ) is the balance due on behalf of the defendant. The ledger account bearing no. MMKPL255 is placed on record as Annexure-P5 (colly). The plaintiff company submits that a legal demand notice dated 20.06.2024 was sent to the defendant but despite receipt of the same, the recovery amount was not paid. The legal notice along with postal receipts is placed on record as Annexure-6 and Annexure-7. The plaintiff CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 2 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:36:33 +0530 company prays that the recovery amount along with future interest and cost be awarded in its favour.
2. For cause of action, the plaintiff company submits that it last arose on 20.06.2024 when legal notice was sent to the defendant. For territorial jurisdiction, the plaintiff submits that parties to the suit reside and work for gain at Delhi.
3. Summons of the suit u/o 37 CPC were sent to the defendant and they were received back unserved with report 'refused' on 14.01.2025. Since the defendant refused to accept the summons and failed to enter appearance, as per Section 37(2)(3) CPC, the allegation in the plaint are deemed to be admitted and the suit is to be decided without taking the defence of the defendant.
4. I have heard the ex-parte final arguments on behalf of the plaintiff company and I have also perused the record carefully. The plaintiff company in this case has alleged that it advanced the loan amount to the defendant vide Loan no. MMKPL255 for a period of 6 months and loan agreement and promissory note I.e annexure 3 and 4 were executed between the parties. Perusal of the record would show that annexure 5 I.e the ledger account of the defendant maintained by the plaintiff company is a printout but it is not supported with the requisite certificate under BSA. Section 63 BSA is akin to 65B Evidence act as per which an electronic record can only be proved in accordance with the procedure prescribed under 65B Evidence act. Further, the mandate of certificate u/s 65B Evidence act with an electronic document was explained by the Hon'ble Supreme Court in Anvar P.V. v. P.K. Basheer AIR 2015 SC 180 while addressing the issue of admissibility of electronic evidence and it was held as under:
CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 3 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:36:39 +0530 "13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence 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 shall be deemed to be a document only if the conditions mentioned Under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65B(2). Following are the specified conditions Under Section 65B (2) of the Evidence Act:
i. The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; ii. The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; iii. During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and iv. The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
"14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
i. There must be a certificate which identifies the electronic record containing the statement;
ii. The certificate must describe the manner in which the electronic record was produced;
iii. The certificate must furnish the particulars of the device involved in the production of that record;
CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 4 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:36:45 +0530 iv. The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and v. The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
"15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
"16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence....17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India....22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same....Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 5 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:36:49 +0530
5. The above discussion would show that without the said certificate under 63 BSA, the document I.e Annexure 5 cannot be read into evidence. The said aspect was also considered by the Hon'ble High Court of Delhi in ICICI Bank Ltd. v. Kamini Sharma & Anr. RFA 297/2015:
"14. Section 34 of the Evidence Act clearly provides that the books of accounts maintained in electronic form are relevant. Under Section 62 of the Evidence Act, original documents constitute primary evidence. In the context of electronic evidence, printouts of electronic documents are considered as secondary. However, judicial notice needs to be taken of the fact that most accounts today are not maintained in paper form, but electronic form. The primary evidence could be the server on which the statement of accounts is stored. These servers may store the statement of accounts of multiple clients in the hard drive. It would be an impossibility to require the Plaintiff bank to produce the hard drive of the server in every suit for recovery filed by it. Under such circumstances, the Plaintiff bank has no option but to produce the secondary evidence i.e., a printout of statement of accounts, duly certified by a responsible official of the bank along with a certificate under Section 65B of the Evidence Act. Needless to add, the certificate under Section 65B of the Evidence Act has now become a usual practice in almost all of the suits, inasmuch as, in every such suit, parties are bound to place reliance on electronic documents. The mere fact, that the printout is being filed as secondary evidence along with the necessary certificate, does not make it any less valid. The said accounts statement would be rebuttable if any discrepancy is found or pointed out. But in the absence of the same, there is no reason as to why the statement of accounts filed by the Plaintiff bank should be disbelieved.
6. The above law would show that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act (which is now 63 BSA) is not complied. Since, in the facts of this case, annexure 5 is not supported with the requisite certificate u/s 63 BSA, the document is not admissible.
CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 6 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:36:54 +0530
7. Next, the documents relied by the plaintiff company are annexure 3 and 4.
As per these documents the defendant received the loan amount through cheque bearing number 000495 dated 31.10.2023. The copy of this cheque is not placed on record, however, by way of annexure 4, the defendant admits the receipt of loan amount, but despite the same, these documents cannot be admitted into evidence. To elucidate, the plaintiff company has filed this case through its director, however, no board resolution authorizing the said director is placed on record and neither the Article of Association authroizing this director to institute suits on behalf of the company is filed. In these circumstances, the evidence put forth through the AR cannot be admitted into evidence. The said law was reiterated in Nibro Ltd. vs National Insurance Co. Ltd. on 6 March, 1990, AIR 1991 DELHI 25, wherein it was held as under:
a) Order 29, rule 1 of the Code of Civil Procedure reads thus: "In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or be any director or other principal officer of the corporation who is able to depose to the facts of the case."
b) Order 3, rule 1 provides that any appearance, application or act in or to any court required or authorise by law can be made or done by the party in person or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Provided of course, such an appearance, application or act in or to any court is required or authorised by law to be done or done by a party in such court. Where, however, there is an express provision of law, then that provision will prevail.
Thus, if an authority is given to a pleader or a recognised agent as provided by law, the recognised agent or pleader can file an appearance or file a suit in court if the party himself is not in a position to file it. In CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 7 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:36:59 +0530 my view, if a party is a company or a corporation, the recognised agent or a pleader has to be authorise by law to file such a plaint. Such an authority can be given to a pleader or an agent in the case of a company by a person specifically authorised in this behalf. In other words, a pleader or an agent can be authorised to file a suit on behalf of a company only by an authorised representative of the company. If a director or a secretary is authorised by law, then he can certainly give the authority to another person as provided under Order 3, rule 1.
c) Order 29, rule 1 of the Code of Civil Procedure provides for subscription and verification of pleadings and states that in suits by or against the corporation, any pleadings may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
d) This court in Oberoi Hotels (India) Pvt. Ltd. (Suit No.469 of 1966-26-
11-1968), while dealing with the scope of Order 29 of the Code of Civil Procedure has observed as follows : "Learned counsel for the plaintiff lastly argued that Shri Ram Lal Chaudhary had stated that he had authority to file the suit as a principal officer of the plaintiff company even apart from the resolution marked 'A'. He did not say so. But how does that help ? The authority of a principal officer of a company in relation to suits filed on behalf of the limited company does not extend beyond what is laid down in Order 29 of the Code of Civil Procedure. That provision does not entitle the principal officer of a company to file a suit on its behalf and for that the authority has to be found either in the articles of association of the company or in the resolution of its board of directors. In the articles of association of several companies, provision is generally made authorising their managing directors and other officers to CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 8 of 9 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:37:04 +0530 file and defend suits on their behalf. Similarly, the board of directors of a company can authorise the institution of a suit on behalf of the company by a resolution. In the case of some companies the articles empower the managing director or directors to appoint general attorneys and general managers and given them authority to institute suits on behalf of the company. But in the absence of any proof in regard to any such power having been conferred on Shri Ram Lal Choudhary, it is not possible to accept his statement that he was authorised to file the suit as the principal officer of the plaintiff hotel. I, therefore, hold that although the plaint has been signed and verified by a person duly authorised to do so on behalf of the plaintiff company, it has not been proved that the suit has been instituted by any such person. The issue is consequently decided against the plaintiff."
8. The consequence of the above discussion is that even though the case of the plaintiff has gone unrebutted and uncontroverted but due to absence of any admissible evidence, the factum of advancement of loan to the defendant has not been proved. Accordingly, the suit of the plaintiff company fails and stands dismissed and disposed off. Plaintiff company to bear its own cost for litigation. File be consigned to the record room after indexing and pagination.
9. Decree sheet be drawn. Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.04.16 16:37:09 +0530 Announced in the open Court (SHILPI SINGH) on 16.04.2025 ACJ-CCJ-ARC/South, Saket Court/Delhi CS SCJ No. 868 of 2024 MMKP DHAN SANCHAY NIDHI LTD. VS. VIVEK YADAV Pages 9 of 9