Delhi District Court
Modi Infosol Pvt. Ltd vs Prime Abgp Pvt. Ltd on 2 December, 2025
IN THE COURT OF SH. RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-05,
WEST DISTRICT, TIS HAZARI COURTS, NEW DELHI
(EARLIER DISTRICT JUDGE (COMMERCIAL COURT)-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS (COMM.) No.352/2020
(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another)
CNR No. DLSE01-004309-2020
M/s Modi Infosol Pvt. Ltd.
Having its Corporate Office at:-
B-38, Okhla Industrial Area,
Phase-I, New Delhi-110 020.
........Plaintiff
Through:-Ms. Suruchi Mittal along with
Mr. Shubham Soni and
Mr. Ujjawal Tripathi, advocates
Versus
1. M/s Prime ABGB Pvt. Ltd.
Registered Office
12 B/2 & 3,
Kartar Mansion No.-II,
35, Tribhuvan Road,
Opposite Ashok Hotel,
Mumbai, Maharashtra-400 004.
Corporate Office:-
SIMLIM SQUARE 106-109,
1st Floor, Lamington Road,
Grant Road, East Mumbai,
Maharashtra-400 007.
2. Lawajit Gulbirr Bhatia (Director)
.........Defendant no.2
Raj (Deleted vide order dated 25.04.2024)
Kumar
Tripathi 3. Mr. Gulbirr Amarjeet Singh Bhatia (Director)
Digitally signed
by Raj Kumar
.........Defendant no.3
Tripathi
Date: 2025.12.02
14:26:09 +0530 CS (COMM.) No.352/2020
(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another)
Page No. 1 of 25
4. Amarjeet Singh Bhatia (Director)
.........Defendant no.4
(Deleted vide order dated 25.04.2024)
......Defendants no.1 and 3
Through:- Mr. R.C. Tiwari along with
Ms. Garima Sachdeva and Ms. Shweta Jha, advocates
Date of filing of suit : 27.10.2020
Arguments heard on : 25.09.2025 and 29.10.2025
Date of Judgment : 02.12.2025
JUDGMENT:
1.1 Plaintiff filed the present suit against defendants for seeking recovery of an amount of Rs.9,96,918/- (Rupees Nine Lakhs Ninety Six Thousand Nine Hundred Eighteen only ) along with pendente lite and future interest @ 18% per annum and cost of the suit.
Brief facts of the case:-
2.1 Plaintiff claims to be a customer oriented technology aware IT solution provider company, providing a range of IT products & mobile accessories, and expert services to create competitive advantage. It also deals with the software, PCs, laptops/desktops, servers, printers, multi-function machines/photo copiers, video projection system, storage and networking products to develop customized IT solution, mobile and mobile accessories for all sorts of customer needs.
2.2 Plaintiff has filed the present suit through its Raj Kumar authorized representative Mr. Shyam Sunder Modi, who has been Tripathi authorized by Board Resolution dated 31.05.2019 to institute the Digitally signed by Raj Kumar Tripathi Date: 2025.12.02 CS (COMM.) No.352/2020 14:26:16 +0530 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 2 of 25 present suit against defendants.
2.3 Defendant no.1 is a company incorporated under The Companies Act, 1956. Defendants no.2 to 4 are its directors and responsible for day to day affairs of defendant no.1 company. Defendant no.1 through its directors approached the plaintiff for supply of various computer goods on their respective agreed price list since 2016 on running account basis. Plaintiff company has made due and timely supply of all orders placed by defendants, which have been duly received by them and there is no complain in that regard till date.
2.4 As per plaintiff, since inception, there has been lapses on part of defendants to observe the terms of supply which clearly state that any delay in payment beyond the due date i.e. after allowance of credit period of 30 days would be chargeable to interest @ 2% per month. However, there was delay of payment on behalf of defendants in every supply causing loss to plaintiff company. The details of ordered goods, invoices raised and delays in payment are mentioned in para no.3 of the plaint. 2.5 Plaintiff avers that as on date defendants are required to pay a sum of Rs.4,12,320/- @ 18% per annum till 21.02.2019 on account of delay in payment. The details of invoices raised against supply of goods and pending payments are as under:-
Invoice No. Invoice Pending Amount
Value (Rs.) (Rs.)
AND/30 40618 40618
LAM/5 265860 128940
Raj AND/338 145634 46000
Kumar
Tripathi LAM/20 39220 39220
Digitally signed AND/732 3089209 150000
by Raj Kumar
Tripathi
Date: 2025.12.02
14:26:23 +0530 CS (COMM.) No.352/2020
(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 3 of 25 AND/821 39220 39220 AND/339 23320 11236 TIMU/17-18/119 23482 23482 TIMU/17-18/159 1422285 69530 TIMU/17-18/165 36352 36352 TOTAL 5,84,598/-
2.6 Plaintiff made regular demands of payment of outstanding dues to defendants by personal messages, who always avoided and neglected to pay the same on one pretext or another. As per plaintiff, defendants lastly made payment on 06.08.2018 under the running account of defendant maintained by plaintiff. As per plaintiff, defendants are liable to pay a sum of Rs.9,96,918/- (Rs.5,84,598/- as principal amount + Rs.4,12,320/- as interest).
2.7 Constrained by willful neglect of defendant to pay its lawful dues, plaintiff issued a legal notice dated 12.04.2019 requesting the defendants to clear the outstanding amount which was duly replied by them by alleging false and frivolous facts against the supplies made and alleged sales return. 2.8 Finding no other option, plaintiff filed an application for Pre-Institution Mediation before South-East District Legal Services Authority on 04.10.2019. However, despite issuance of two notices, defendants did not appear before the Authority nor gave any intimation to participate in mediation proceedings scheduled for hearing on 08.11.2019 and 19.12.2019.
Raj Consequently, the process of mediation was treated as non-starter Kumar Tripathi vide Non-Starter Report dated 21.12.2019. Thereafter, plaintiff Digitally signed by Raj Kumar filed the present suit against defendants.
Tripathi Date: 2025.12.0214:26:29 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 4 of 25 2.9 Thereafter, plaintiff filed the present suit against defendants for seeking recovery of its dues. 3.1 Pursuant to service of summons upon defendants, they made appearance in the Court through their advocate on 12.10.2022.
3.2 Vide order dated 25.04.2024, defendants no.2 and 4 were directed to be deleted from the array of parties as they were not found to be necessary parties for adjudication of dispute in the present suit.
Defence of defendants 4.1 Defendants no.1 and 3 have contested the suit by way of filing written statement.
4.2 In the written statement, defendants contended that u/s 20 of The Code of Civil Procedure, 1908 (in short 'CPC'), this Court does not have jurisdiction to try and entertain the claim in the suit as the goods were sold, dispatched and delivered from place outside New Delhi i.e. F4 & 5, Shree Ram Complex, Opposite Suwarna Hotel, Dapoda Road, Bhiwandi, Maharashtra and dispatched for delivery by Venus Cargo & Logistics Pvt. Ltd. from Vashi, Navi Mumbai to the address of defendants in Mumbai. The tax invoice-cum-challan and the waybill documents attached to the plaint specifically mention that sale of the goods and its delivery is subject to Courts in Mumbai. There Raj is no nexus between the transactions and the place of suing i.e. Kumar New Delhi. The entire cause of action, if at all has arisen, same Tripathi would be in Mumbai.
Digitally signed by Raj KumarTripathi 4.3 Defendants state that the claim of plaintiff is either Date: 2025.12.02 14:26:35 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 5 of 25 wholly or partly barred by law of limitation as out of total ten invoices, three invoices i.e. (i) Invoice No. AND/30 dated 13.04.2016 of Rs.40,618/- (ii) Invoice No.LAM/5 dated 25.04.2016 of Rs.2,65,860/- and (iii) Invoice No.AND/338 dated 25.07.2016 of Rs.1,45,634/- are prior to three years before institution of the suit and hence, are unenforceable and barred by law of limitation.
4.4 As per defendants, the goods covered under Invoice No.AND/30 dated 13.04.2016 of Rs.40,618/- was returned to ASUS Global PTE Ltd., who had issued credit note no.152116084002722 dated 28.08.2016 to plaintiff in the sum of USD 410. Defendants claim that the original credit note is in custody of plaintiff and a copy whereof was sent to defendant. Therefore, in any event, the amount claimed under invoice no.AND/30 dated 13.04.2016 of Rs.40,618/- is not payable to plaintiff.
4.5 Defendant claims to have paid the amount in respect of following three invoices to plaintiff:-
(i) Invoice No.AND/338 dated 25.07.2016 of Rs.1,45,634/- in respect of which Rs.46,000/- as claimed by plaintiff was fully paid vide cheque no.000377 dated 22.06.2019 for an amount of Rs.46,000/-. The said cheque was debited in the bank account no.04232790000133 maintained with HDFC Bank, Grant Road Branch, Mumbai.
(ii) Invoice No.LAM/20 dated 06.10.2016 for Raj Rs.39,220/- was paid by defendant vide cheque no.986573 dated Kumar Tripathi 19.11.2016 for Rs.1,17,660/- which was debited in the bank Digitally signed by Raj Kumar Tripathi account no.04238630000194 maintained with HDFC Bank, Grant Date: 2025.12.02 14:27:23 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 6 of 25 Road Branch, Mumbai. The said sum of Rs.1,17,660/- is towards the payment of Invoice No.LAM/19 for Rs.78,440/- and LAM/20 for Rs.39,220/- aggregating to Rs.1,17,660/-.
(iii) Invoice No. TI/MU/17-18/165 dated 28.08.2017 of Rs.36,352/- was paid by defendant by cheque no.990020 dated 10.10.2017 for Rs.60,416/- drawn on HDFC Bank, Grant Road Branch, Mumbai which was debited in the bank account no.04238630000194 maintained with HDFC Bank, Grant Road Branch, Mumbai. The said sum of Rs.60,416/- comprises of Rs.20,064/- towards payment of Invoice No.TI/MU/17-18/154 and Invoice No.TI/MU/17-18/165 for Rs.36,352/- aggregating to Rs.60,416/-.
4.6 Defendants claim that in respect of following two invoices, they have not placed any order for purchase nor received the material described in the said invoices:-
(i) Invoice No.AND/17-18/339 for a sum of Rs.23,320/- and
(ii) TI/MU/17-18/119 for a sum of Rs.23,482/-
4.7 Defendants have denied existence of aforesaid two invoices and claim that no sum is payable against the said invoices.
4.8 As per defendants, the goods under Invoice No.AND-821 dated 22.03.2017 was returned to the office of plaintiff in Mumbai for which plaintiff had failed to issue credit note.
4.9 Defendants contend that the Invoice No.TI/MU/17- 18/159 dated 25.08.2017 for Rs.14,58,636/- is in excess of Raj Kumar Rs.1,52,358.09.
Tripathi Digitally signed 4.10 As per defendants, Purchase Order No. June/011 by Raj Kumar Tripathi Date: 2025.12.02 CS (COMM.) No.352/2020 14:27:29 +0530 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 7 of 25 dated 29.06.2017 was placed upon plaintiff for purchase of goods for total value $16,215.10 equivalent to Rs.12,32,340/-. On the said amount, VAT @ 6% is payable amounting to Rs.73,940.40. Hence, total amount payable was Rs.13,06,280/-. The aforesaid sale attracted VAT not SGST and CGST, as wrongly levied by plaintiff. Plaintiff has charged a sum of Rs.14,58,638.09, thereby demanding excess amount of Rs.1,52,358.09. 4.11 Defendants have denied the claim of plaintiff in the sum of Rs.69,530/- outstanding towards Invoice No. TI/MU/17- 18/159 dated 25.08.2017. They further alleged that plaintiff's claim in the sum of Rs.1,50,000/- towards the Invoice No. AND/732 of Rs.30,89,209/- is also not tenable in law as they have paid a sum of Rs.29,39,209/- and the balance sum of Rs.1,50,000/-was agreed by Mr. Atul Modi, director of plaintiff as not payable since the goods described under the said invoice were agreed to be delivered within the specific time which plaintiff failed to deliver. Defendants had agreed to onward supply of the said goods to IIT, Mumbai which they could not deliver in time due to non-receipt of the same from plaintiff. Consequently, the IIT, Mumbai levied a penalty and the defendants suffered a loss of Rs.1,50,000/-. The said sum of Rs.1,50,000/- was agreed as not payable by defendants to plaintiff under the said Invoice No. AND/732 of Rs.30,89,209/-.
4.12 Defendants claim to have paid sums to plaintiff as per each of the invoice and as such, there was no question of running account between the parties. They had no other dealing Raj with plaintiff except the sale and supply of subject goods.
Kumar Tripathi 4.13 Denying all the other averments and allegations of Digitally signed by Raj Kumar Tripathi CS (COMM.) No.352/2020 Date: 2025.12.02 14:27:35 +0530
(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 8 of 25 the plaint, defendants prayed to dismiss the suit with cost.
Replication 5.1 Plaintiff filed replication to written statement of defendants, wherein, it reiterated the facts as mentioned in the plaint and denied all the allegations and averments made in the written statement.
Issues 6.1 From the pleadings of the parties, the following issues were framed on 14.08.2024:-
(i) Whether the suit of plaintiff is barred by law of limitation as alleged by defendants?OPD.
(ii)Whether this court has no territorial jurisdiction to entertain and adjudicate upon the dispute between the parties as alleged?OPD.
(iii)Whether plaintiff is entitled for recovery of an amount of Rs.9,96,918/- as prayed in prayer clause (a) of the suit?OPP.
(iv) Whether plaintiff is entitled for pendente lite and future interest, if so, at what rate?OPP.
(v) Relief.
Evidence of parties 7.1 In support of its case, Mr. Shyam Sunder Modi, director of plaintiff company examined himself as PW1. He file his evidence by way of affidavit, Ex.PW1/A, wherein he has Raj reiterated and reaffirmed the same facts as stated in the plaint. Kumar Tripathi 7.2 Before coming to the testimony of PW1, the Digitally signed by Raj Kumar Tripathi documents relied upon by him are put in a tabulated form as Date: 2025.12.02 14:27:41 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 9 of 25 under:-
S.No. Details of Document Exhibit Mark
1. Original Board Resolution dated 31.05.2019 Ex.PW1/1
2. Original Invoices Ex.PW1/2 (colly) 3. Ledger Account Ex.PW1/3
4. Office copy of Legal Notice dated Ex.PW1/4 (colly.) 12.04.2019 along with proof of delivery
5. Certificate under Section 65B of The Indian Ex.PW1/5 Evidence Act in support of invoices and Ledger Account
6. Copy of screenshot of whatsapp Ex.PW1/6 conversation with defendant no.2
7. Computer generated copy of GSTR Ex.PW1/7 Summary from GST website
8. Certificate under section 65B of The Indian Ex.PW1/8 Evidence Act for whatsapp conversation and GSTR summary 8.1 On the other hand, defendant no.3 Mr. Gulbirr Amarjeet Singh Bhatia, one of the Directors of defendant company, examined himself as DW1. He filed his evidence by way of affidavit, Ex.DW1/A. He has relied upon the following documents:-
S.No. Details of Document Exhibit Mark
1. Copy of Credit Note dated 28.08.2016 Mark-A
2. Copy of bank statement from the period of Mark-B 24.06.2019 to 24.06.2019
3. Copy of bank statement from the period of Mark-C 21.11.2016 to 21.11.2016
4. Copy of Bank Statement from the period of Mark-D 10.10.2017 to 10.10.2017 (Colly.) Raj Kumar 5. E-mail dated 16.02.2018 sent by Sh.Atul Modi Mark-PW1/ Tripathi DX2 Digitally signed by 6. Copy of the invoice No.TI/MU/17-18/159 Ex.PW1/2 Raj Kumar Tripathi Date: 2025.12.02 (Colly.) 14:27:51 +0530
7. Purchase Order No.JUN/011 dated 29.06.2017 for Mark-E CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 10 of 25 $16,215.10 (colly) Findings and Observations:
9.1 I have heard and considered the rival submissions of both the parties and perused the material on record.
Issue wise findings are as under:-
Issue no.(i) Whether the suit of plaintiff is barred by law of limitation as alleged by defendants?OPD.
10.1 Onus to prove this issue lies on defendants. 10.2 In order to discharge the onus to prove the issue, defendant no.3 Mr. Gulbirr Amarjeet Singh Bhatia, who is one of the directors of defendant no.1 company, examined himself as DW1.
10.3 Learned counsel for defendants submitted that plaintiff has not filed the present suit within limitation period because he has already received the amount against the bills either by way of debit notes/credit notes or through cheque. He further submitted that plaintiff has filed the present suit on the basis of false and fabricated facts and documents. 10.4 He argued that the claim of plaintiff is either wholly or partly barred by law of limitation. Plaintiff filed the present suit on 02.11.2020 but due to spread of Covid-19, the limitation period was extended from 20.03.2020 till February, 2022. The plaintiff was having time to file the present suit on or before Raj Kumar 19.03.2020, therefore, the invoices bearing no.ADN/30, LAM/5, Tripathi ADN/338, LAM/20 and ADN/732 are beyond limitation of three Digitally signed by Raj Kumar Tripathi years. As such, the amount of Rs.4,04,778/- along with interest Date: 2025.12.02 14:27:57 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 11 of 25 cannot be part and parcel of the amount claimed in the suit.
Accordingly, the present suit is also barred by limitation under Article 26 of The Limitation Act, 1963.
10.5 Per contra, learned counsel for plaintiff submitted that the instant suit for recovery filed by plaintiff is well within the prescribed limitation period as the last acknowledged payment was made by defendant on 24.06.2019 after receipt of legal notice for invoice bearing no.ADN/338 dated 25.07.2016. Hence, the present suit has been filed within three years. 10.6 In order to appreciate the issue at hand, the relevant portion of cross-examination of PW1 is reproduced herein below for ready reference:-
"Q.25 Is it correct that you have received this legal notice on behalf of plaintiff company? Ans. Yes, it is correct.
Q.26 Did you make any payment to plaintiff company after receipt of this legal notice from plaintiff company?
Ans. Yes.
Q.27 When was the said payment made?
Ans. We made the payment on 24.06.2019 of Rs.46,000/- to plaintiff company."
10.7 From the aforesaid cross-examination of DW1, it is seen that defendant has admitted to have made payment of Rs.46,000/- to plaintiff on 24.06.2019 after receiving the legal notice from plaintiff on 12.04.2019. Plaintiff filed the instant suit on 27.10.2020 i.e. within three years from the date of last Raj payment made by defendant.
Kumar Tripathi 10.8 Section 19 of The Limitation Act, 1963 provides the Digitally signed by Raj Kumar Tripathi effect of payment on account of debt or of interest on legacy. The Date: 2025.12.02 14:28:03 +0530 said provision is extracted herein below:-
CS (COMM.) No.352/2020(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 12 of 25 "where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment."
10.9 Parties have admittedly been dealing and communicating with each other on disputed invoices up till 2018.
Defendants have relied upon e-mail dated 16.02.2018, Mark- PW1/DX2 sent by Mr. Atul Modi. Vide e-mail dated 18.02.2018 sent by defendant no.3 to Mr. Atul Modi, he agreed to pay Rs.46,000/- and pursuant to the said mail, he paid the said amount to plaintiff on 24.06.2019. Plaintiff filed the present suit on 27.10.2020, thus, the suit is found to be well within limitation. 10.10 Further, plaintiff claims that the dealings between the parties were on open, mutual and running account basis, and all the invoices raised were to be settled on running account basis at the end of all dealings between the parties. The last payment in the running account was made on 06.08.2018. The payment of the said amount has not been disputed and denied by defendants. Plaintiff filed the present suit on 27.10.2020 i.e. within three years from the date of last payment made by him. Hence, the suit of plaintiff is within limitation.
Raj Kumar 10.11 In view of above and as defendants have failed to Tripathi discharge the onus to prove the issue, issue (i) is decided against Digitally signed by Raj Kumar Tripathi Date: the defendants and in favour of plaintiff.
2025.12.02 14:28:08 +0530 CS (COMM.) No.352/2020(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 13 of 25 Issue no.(ii) Whether this court has no territorial jurisdiction to entertain and adjudicate upon the dispute between the parties as alleged?OPD. 11.1 Onus to prove this issue lies on defendants. 11.2 The defendants in the written statement have contended that this Court does not have jurisdiction to try and entertain the claim in the suit as the goods were sold, dispatched and delivered from place outside New Delhi i.e. F4 & 5, Shree Ram Complex, Opposite Suwarna Hotel, Dapoda Road, Bhiwandi, Maharashtra by Venus Cargo & Logistics Pvt. Ltd. from Vashi, Navi Mumbai to the address of defendants in Mumbai. The tax invoice-cum-challan and the waybill documents attached to the plaint specifically mention that sale of the goods and its delivery is subject to Courts in Mumbai. There is no nexus between the transactions and the place of suing i.e. New Delhi. The entire cause of action, if at all has arisen, same would be in Mumbai.
11.3 Plaintiff denied the aforesaid assertions regarding jurisdiction in the replication. Plaintiff claims that it has its registered office at New Delhi under the jurisdiction of this Court, every sale and purchase of goods by the branch offices are reported to the registered office and the payments are also to be at Delhi. Further, on the invoices, it is categorically mentioned that the disputes are subject to Delhi jurisdiction. 11.4 As per plaintiff, the payments had to be made by Raj defendants at New Delhi office, part cause of action has arisen Kumar Tripathi within the territorial jurisdiction of this Court and accordingly, this Court has jurisdiction to decide the dispute between the Digitally signed by Raj Kumar Tripathi Date: 2025.12.02 14:28:13 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 14 of 25 parties.
11.5 Plaintiff has relied upon tax invoices Ex.PW1/2 (colly.) raised against defendant company for supply of goods. Defendant in his cross-examination in reply to question no.12 has admitted that 'subject to Delhi jurisdiction' is written at the bottom of all the invoices from page no. 38 to 48. 11.6 From the memo of parties, it is seen that plaintiff's Corporate Office is situated at Okhla which is within the jurisdiction of this Court. The payment of outstanding dues of plaintiff was to be made by defendants in plaintiff's account in Delhi. Thus, on the principle of the "debtor must seek the creditor", this Court has territorial jurisdiction to entertain, try and decide the dispute between the parties. Reliance is placed upon Aruna Oswal v. Gen Y Commodities Pvt. Ltd. & Others CS (COMM) No.1206/2018, wherein Hon'ble High Court of Delhi also relied upon the same principle as enunciated in Union Bank of India v. Milkfood Ltd. MANU/DE/2018/2012; Yash Chhabra v. Maya Jain 2015 SCC OnLine Del 10124; Shradha Wassan v. Anil Goel 2009 SCC OnLine Del 1285, IUP Jindal Metals & Alloys v. Conee Chains Private Limited 2013 SCC OnLine Del 1454; DAP Buildcon v. BB Lal Agarwal 2016 SCC OnLine Del 6377; Cypress Fincap Private Limited v. Vyogiswami Financial Consultants 265 (2019) DLT 383; Satyapal vs. Slick Auto Accessories Private Limited 2014 SCC OnLine Del 998 and LN Gupta v. Tara Mani (1983) 24 DLT 184.
Raj Kumar 11.7 In view of above, this Court is of the considered view Tripathi that defendants have failed to discharge the onus to prove the Digitally signed by Raj Kumar Tripathi issue. Accordingly, issue no.(ii) is decided against defendants and Date: 2025.12.02 14:28:19 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 15 of 25 in favour of plaintiff.
Issue no.(iii) Whether plaintiff is entitled for recovery of an amount of Rs.9,96,918/- as prayed in prayer clause (a) of the suit? OPP. 12.1 Onus to prove this issue lies on plaintiff. 12.2 In order to discharge the onus to prove the issue, Mr. Shyam Sunder Modi, the director of plaintiff company, has examined himself as PW1. Mr. Modi filed his evidence by way of affidavit, Ex.PW1/A, wherein, he has deposed and corroborated about facts as mentioned in the plaint. 12.3 As per PW1, plaintiff made timely supply of all the orders placed by defendants which were duly received by them without any demur. He proved the invoices as Ex.PW1/2 (Colly.) and the ledger account as Ex.PW1/3. He deposed that defendants are liable to pay a sum of Rs.9,96,918/- to plaintiff. 12.4 On 16.05.2025, defendants filed an application under Order XVI Rule 3 r/w section 151 CPC for seeking recall of PW1 for his cross-examination. On that date, counsel for plaintiff sought time to verify the documents including the credit notes filed by defendants along with the application. 12.5 Plaintiff filed reply to the aforesaid application of defendants, wherein, it was stated that the credit notes as pointed out by defendants in para no.8 of the application have been adjusted in the ledger accounts on the e-mail of ASUS Technology Pvt. Ltd. Consequently, plaintiff revised the Raj Kumar calculation and filed revised calculation sheet (Annexure-A1) for Tripathi Digitally signed its claim in the suit after adjusting the credit notes. As per by Raj Kumar Tripathi Date: 2025.12.02 plaintiff, defendants are liable to pay only an amount of 14:28:26 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 16 of 25 Rs.8,67,990/- (Rs.4,75,879/- towards principal amount + Rs.3,92,111/- towards interest calculated till 21.02.2019. Thus, the claim of plaintiff remains only for an amount of Rs.8,67,990/- along with pendente lite and future interest and cost of proceedings.
12.6 Defendants have admitted purchase of goods under various invoices and receipt of goods. Thus, supply once admitted, liability to pay the same arises on the part of defendants.
12.7 The relevant portion of cross-examination of PW1 is reproduced herein below for better appreciation of rival contentions of the parties:-
"Q.21 Is is correct that when the service centre was not able to repair or replace the product in relation to Ex.PW1/2 (colly.) page 19 of list of documents bearing Invoice No.ADN-30 dated 13.04.2016, has the company issued credit note in this regard? Ans. We have not received any credit note in this regard.
Q.22 I put it to you that ASUS Global PTE Ltd. has issued a credit note dated 28.08.2016 of USD 410 in favour of plaintiff bearing no.CN152116084002722 in respect to the Ex.PW1/2 (colly.) page 19 of list of documents bearing invoice no.ADN/30 dated
13.04.2016?
Ans. It is wrong to suggest so."
Raj 12.8 From the aforesaid cross-examination of PW1, it is to Kumar be noted that no credit note in respect of invoice bearing Tripathi Digitally signed no.ADN/30 dated 13.04.2016 was received by plaintiff company.
by Raj Kumar Tripathi Date: 2025.12.02 14:28:34 +0530 CS (COMM.) No.352/2020
(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 17 of 25 Defendants claim that ASUS Global PTE Ltd. had issued a credit note dated 28.08.2016 in favour of plaintiff bearing no.CN152116084002722 in respect of invoice no.ADN/30 dated 13.04.2016. However, they have failed to prove the said credit note on record. In the case of Rangammal vs. Kuppuswami & Another (2011) 12 SCC 220, Hon'ble Supreme Court held that "the burden of proving a fact always lies upon the person, who asserts it. Unless such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party."
12.9 PW1 in his cross-examination has admitted that plaintiff has already given credit note bearing no.60 dated 30.11.2015 for Rs.62,475/- and credit note bearing no.1447 dated 31.03.2017 for Rs.67,812/- against alleged DOA Certificate in its accounts. He further admitted that the amount against invoice no.AND/338 dated 25.07.2016 of Rs.45,999/- was paid by defendants through cheque bearing no.000377 dated 24.06.2019. However, he submitted that the said amount was paid after legal notice. He denied the suggestion that cheque no.986573 dated 19.11.2016 amounting to Rs.1,17,660/- was encashed on 21.11.2016 in the account of plaintiff as shown in bank account Mark-PW1/DX1. He stated that the said amount was received Raj from defendant but the same was against different invoice i.e. Kumar LAM/24 dated 26.10.2016 as shown in the ledger. He denied the Tripathi Digitally signed by Raj Kumar suggestion that the goods against invoice no.ADN/732 dated Tripathi Date: 2025.12.02 14:28:40 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 18 of 25 08.11.2016 of Rs.30,89,209/- was not delivered at IIT, Mumbai within time.
12.10 In respect of e-mail dated 16.02.2018 Mark-PW1/DX2, PW1 deposed that "as per said mail, if we get air freight then we will give credit note but we did not get the same. Also, as per the e-mail confirmation was required from defendant no.2 but the same was never given. Vol. We have got whatsapp confirmation from defendant that Rs.1,50,000/- will be paid". PW1 has denied the suggestion that he had not received any confirmation from the defendant on whatsapp to pay Rs.1,50,000/-. He further denied the suggestion that the air freight was received by him and wrongly not mentioned in his statement of account.
12.11 PW1 has further denied the suggestion that debit note bearing no.PAPL/DN/159 dated 22.03.2017 Mark-PW1/DX3 was issued by defendant against invoice no.ADN/821 dated 05.12.2016 which is part of Ex.PW1/2 (colly.). He also denied the suggestion that there is no liability of defendants against bill ADN/339 dated 30.06.2017 and TI/MU/17-18/119 dated 10.08.2017 as they never placed any order. 12.12 PW1 has also denied the suggestion that defendant has already made payment against claimed bill no.TIMU/17- 18/165 dated 28.08.2017 of Rs.36,352/- which was paid along with payment of invoice no.TIMU/17-18/154 dated 23.08.2017 of Rs. 24,064/- jointly on 10.10.2017 vide cheque no.990020 dated Raj 10.10.2017 of Rs.60,416/-. As per the witness, the said cheque Kumar Tripathi was adjusted against outstanding of invoice no.TIMU/17-18/159 Digitally signed by Raj Kumar dated 24.08.2017 of Rs.14,58,636/-.
Tripathi Date: 2025.12.0214:28:47 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 19 of 25 12.13 The case of plaintiff is based on documentary evidence. PW1 was cross-examined at length in respect of the documents relied upon by him. However, despite lengthy cross- examination, defendants have failed to elicit any positive response in their favour and falsify the claim of plaintiff. All the payments made by defendants have been duly acknowledged and adjusted in the ledger account maintained by plaintiff. Defendants have failed to point out any discrepancy in the said ledger account. They have further failed to point out any amount paid by them to plaintiff which has not been adjusted by plaintiff. They have miserably failed to prove on record that the payment against the pending invoices have been made to plaintiff. 12.14 In the course of pendency of the matter, defendants pointed out that plaintiff had not given credit of credit notes dated 23.12.2016, 06.01.2017, 24.03.2017 and 07.04.2017. Plaintiff claims that on receiving the e-mail from ASUS Global PTE Ltd., it reconciled its account and gave credit for the said credit notes to defendants. A revised claim sheet (Annexure-A1) was filed by plaintiff claiming only an amount of Rs.4,75,879/- towards principal and Rs.3,92,111/- towards interest as on 21.02.2019. 12.15 Defendants have contended that invoice no.TI/MU/17-18/159 dated 25.08.2017 for Rs.14,58,636/- is in excess of Rs.1,52,358.09. As per them, they had placed upon plaintiff purchase order no.June/011 dated 29.06.2017 for purchase of goods described therein of the total value $16,215.10 Raj Kumar equivalent to Rs.12,32,340/-. On the said amount VAT @ 6% is Tripathi Digitally signed payable amounting to Rs.73,940/-. Hence, total amount payable by Raj Kumar Tripathi Date: 2025.12.02 was Rs.13,06,280/-. According to defendants, the aforesaid sale 14:29:34 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 20 of 25 attracted VAT and not SGST and CGST as wrongly levied by plaintiff. The plaintiff has charged a sum of Rs.14,58,638.09 thereby demanding excess amount of Rs.1,52,358.09, hence, the said amount is not due towards invoice no.TI/MU/17-18/159. 12.16 DW1 Mr. Bhatia in his cross-examination dated 07.03.2025 has admitted that from July 2017 GST was made applicable in India. He also admitted that all invoices thereafter will have to have the relevant GST payable. 12.17 Admittedly, the purchase order was placed/issued by defendants in June 2017 when VAT was applicable. The material was supplied to defendants on 25.08.2017. Accordingly, invoice no.TI/MU/17-18/159 dated 24.08.2017 for Rs.14,58,636/- was raised by plaintiff upon defendants. The date when the invoice was issued, the new GST tax regime had come into force and GST tax rate was applicable at that time. Plaintiff has reportedly given tax credit to defendants by filing invoice in GSTR-1. The defendant has also taken the claim of GST input (Ex.PW1/7). Thus, in the given facts and circumstances of the case, defendants cannot claim that excess amount of Rs.1,52,358.09 has been charged by plaintiff against invoice no.TI/MU/17-18/159. 12.18 In view of foregoing reasons and discussions, this Court is of the considered view that plaintiff has succeeded to prove its entitlement for recovery of an amount of Rs.4,75,879/- (Principal amount) against defendants. This issue is decided accordingly in favour of plaintiff and against the defendants. Raj Kumar Tripathi Issue no.(iv) Digitally signed by Raj Kumar Tripathi Whether plaintiff is entitled for pendente lite and future interest, if Date: 2025.12.02 14:29:42 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 21 of 25 so, at what rate?OPP.
13.1 Onus to prove this issue lies on plaintiff. 13.2 Plaintiff has claimed interest @ 18% per annum on the outstanding amount.
13.3 PW1 in his cross-examination in reply to question no.28 has admitted that 18% interest is not mentioned in invoice no.ADN/30 dated 13.04.2016. Further, in reply to question no.43, he stated that 18% interest as claimed by plaintiff does not find mention in any of the bills or invoices.
13.4 For ease of convenience, section 34 of The Code of Civil Procedure, 1908 which deals with interest is reproduced hereunder for ready reference:-
"34. Interest.- (1) 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 six per cent, 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.
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 six per cent, per annum, but shall not exceed the contractual rate of 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......".
Raj 13.5 The concept of awarding interest on delayed Kumar Tripathi payment has been explained by Hon'ble Supreme Court in the Digitally signed by Raj Kumar Tripathi Date: 2025.12.02 14:29:48 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 22 of 25 case of Authorized Officer, Karnataka Bank v. M/s RMS Granites Pvt. Ltd. & Ors. in Civil Appeal No.12294/2024, wherein, it was held as under:-
"It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say ten years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B ten years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B. [See: Alok Shanker Pandey v. Union of India: AIR 2007 SC 1198.]"
13.6 Further, in the case of Secretary, Irrigation Department Government of Orissa v. G.C. Roy (1992) 1 SCC 508, the constitution bench of Hon'ble Apex Court opined that a person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This is also the principle of section 34 of The Civil Procedure Code.
13.7 In the case of M/s Tomorrowland Ltd. v. Housing and Urban Development Corporation Ltd. & Another SLP(C) No. 34338/2016 decided on 13.02.2025, Hon'ble Supreme Court Raj observed as under:-
Kumar "49. It is trite law that under Section 34 of the CPC, Tripathi the award of interest is a discretionary exercise Digitally signed by Raj Kumar steeped in equitable considerations. The law in this Tripathi Date: 2025.12.02 14:29:54 +0530 CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 23 of 25 regard has been succinctly discussed in the Constitution Bench judgment of this Court in Central Bank of India v. Ravindra & Ors.; (2002) 1 SCC 367, which states:
"Award of interest pendente lite or post-decree is discretionary with the Court as it is essentially governed by Section 34 of the CPC de hors the contract between the parties. In a given case if the Court finds that in the principal sum adjudged on the date of the suit, the component of interest is disproportionate with the component of the principal sum actually advanced, the Court may exercise its discretion in awarding interest pendente lite and post- decree interest at a lower rate or may even decline to award such interest. The discretion shall be exercised fairly, judiciously, and for not arbitrary or fanciful reasons.
[Emphasis supplied"
13.8 In view of section 3 of The Interest Act, plaintiff can be awarded pre-suit interest in terms of the contract between the parties, if the same is not found unreasonable. In the case in hand, there is no contract between the parties for charging interest @ 18% per annum on delayed payment. It is matter of record that plaintiff had initially not given credit of the credit notes to defendants at the time of filing of the suit. The plaintiff, when being pointed out by defendants, during the pendency of the case, gave credit of credit notes dated 13.12.2016, 06.01.2017, 24.03.2017 and 07.04.2017. Thus, plaintiff cannot be granted interest on the amount which it was not entitled to recover i.e. in respect of the credit notes.
13.9 It is well settled that as far as grant of pendente lite
Raj and future interest is concerned, in view of provisions contained
Kumar
Tripathi in section 4 of The interest Act and section 34 CPC, same is
Digitally signed
by Raj Kumar
Tripathi discretion of the Court.
Date: 2025.12.02
14:30:00 +0530
CS (COMM.) No.352/2020
(Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 24 of 25 13.10 Keeping in view the ratio of law laid down in the aforementioned cases with respect to grant of interest to the facts of the present case and as the transaction between the parties is commercial in nature, this Court is of the considered view that interest of justice shall be subserved, if plaintiff is granted interest @ 8% per annum on the delayed payment.
13.11 The issue no.(iv) is decided accordingly in favour of plaintiff and against the defendants.
Relief 14.1 For the forgoing reasons and discussions and findings returned on issue no.(i) to (iv), the suit of plaintiff is decreed with cost. Defendants are directed to pay an amount of Rs.4,75,879/- to plaintiff along with interest @ 8% per annum w.e.f. 25.06.2019 till actual realization of the amount. 15.1 Decree Sheet be prepared accordingly. 16.1 File be consigned to Record Room.
Digitally
signed by Raj
Raj Kumar
Tripathi
Announced in the open court Kumar Date:
Dated: 02.12.2025 Tripathi 2025.12.02
14:30:08
+0530
(RAJ KUMAR TRIPATHI)
District Judge (Commercial Court)-05, West District, Tis Hazari Courts, Delhi (Earlier District Judge (Commercial Court)-08, South-East District, Saket Courts,New Delhi) CS (COMM.) No.352/2020 (Modi Infosol Pvt. Ltd. vs. Prime ABGP Pvt. Ltd. & Another) Page No. 25 of 25