Delhi District Court
M/S Ocean Fabtex vs M/S Mangal Enterprises on 17 July, 2021
IN THE COURT OF MS. NISHA SAXENA, DISTRICT
JUDGE (COMMERCIAL COURT)-04, CENTRAL, TIS
HAZARI COURTS, DELHI.
CS(COMM) No. 977 of 2019
M/s Ocean Fabtex,
E-16/707, Tank Road,
Karol Bagh,
New Delhi-110005.
Through its Manager
Shri Kartik Kumar .... Plaintiff
Versus
1. M/s Mangal Enterprises
5645/1, Gali No.78,
Rehgarpura, Karol Bagh,
New Delhi-110005.
2. Shri Puneet
Prop/Partner/Authorized signatory
M/s Mangal Enterprises
5645/1, Gali No.78,
Rehgarpura, Karol Bagh,
New Delhi-110005. .... Defendants
Date of filing of the suit : 02.07.2019
Date of reserving judgment : 14.07.2021
Date of judgment : 17.07.2021
JUDGEMENT
PLAINTIFF'S CASE
1. Succinctly stated, the facts are that the plaintiff is a proprietorship firm and doing its business of sale and supply of fabrics on wholesale basis under the proprietorship of Ms. Sanju Ramesh w/o Sh. Ramesh 1 Chand, who has authorized Sh. Kartik Kumar, Manager of the firm vide authority letter dated 21.01.2019 to sign, verify any plaint and institute any suit for recovery in the court of law against the defendants.
2. The plaintiff firm supplied the ordered fabric to the defendant no.1 firm from time to time as per the following bills/invoices.
Invoice Date Amount (Rs.)
No.
168 30.07.2016 1,03,864.00
171 02.08.2016 24,320.00
173 09.08.2016 1,06,593.00
107 24.08.2016 2,13,765.00
111 27.08.2016 46,250.00
114 30.08.2016 24,570.00
5,19,362.00
Less amount received 40,000.00
in cash on 18.01.2017
Amount Due = 4,79,362.00
As such an amount of Rs.4,79,362/- (Rupees four lacs seventy nine thousand three hundred sixty two only) is still due and payable by the defendant to the plaintiff firm which amount has also duly been shown by the plaintiff firm in its income tax return for the year 2017- 2018.
3. The plaintiff through its counsel got the legal notice of demand dated 21.01.2019 served upon the defendant but payment of the aforesaid amount has not been made 2 till date.
4. The plaintiff has prayed for a decree for recovery of Rs. 4,79,362/- (Rupees four lacs seventy nine thousand three hundred sixty two only) against the defendants along with future interest @ 18% per annum.
DEFENDANT'S CASE
5. In the written statement filed by the defendant, the defendant has taken the preliminary objection that the proprietorship firm has no legal entity like a registered firm. A suit cannot be instituted in the name of the proprietorship firm and the suit instituted by the proprietorship firm is not maintainable.
6. It has also been alleged that the plaint has not been duly signed and verified by a proper person. Order VI rule 14 requires that every pleading shall be signed by the party and his pleader (if any). It is provided that where party pleading is, by reason of absence or for other good cause, unable to sign the pleadings, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. No reason has been mentioned in the plaint as to why the plaint has not been signed and verified by Ms. Sanju Ramesh, the proprietor of the plaintiff firm. The plaint has been signed and verified by one Sh. Kartik Kumar on the 3 basis of authority letter on the letterhead of the plaintiff firm. No GPA has been filed by the plaintiff in favour of Sh. Kartik Kumar. No authority was given to Mr. Kartik by the plaintiff to appoint and/or execute vakalatnama in favour of any pleader/legal practitioner on behalf of the plaintiff firm. The legal notice dated 21.01.2019 issued by the legal practitioner is illegal. It is stated that appointment of Sh. Swadesh Bansal as counsel for the plaintiff firm is illegal and unauthorized. No legal notice was ever received by the defendants.
7. It is alleged that the present suit is not maintainable in the present form in as much as the pleadings have not been verified by a statement of truth namely the affidavit set out in the appendix to the schedule as prescribed under order VI rule 15A CPC.
8. It is alleged that the plaint is not in accordance with order VII rule 2A, sub rule (1) which provides that where the plaintiff seeks interest, the plaint shall contain a statement to that effect along with the details set out in sub rule 2 and 3.
9. It is alleged that the valuation of the suit is not in accordance with order VII rule 1 (i) inasmuch as the plaintiff has failed to give a statement of the value of the subject matter of the suit for the purpose of jurisdiction and of court fees.
410. On merits, it is denied that the plaintiff has supplied goods worth Rs.5,19,362.00 to the defendants as alleged. It is stated that as a matter of fact, the plaintiff has supplied goods worth Rs. 5,12,071.00 only as detailed under:
Invoice Date Amount (Rs.)
No.
168 30.07.2016 1,03,863.50
171 02.08.2016 24,320.00
179 09.08.2016 1,04,395.50
107 24.08.2016 2,10,133.00
111 27.08.2016 45,296.00
114 30.08.2016 24,063.00
5,12,071.00
11. The defendants have paid the entire amount of the invoices amounting to Rs.5,12,071.00 as per the following details.
S.No. Date Amount
1. 18.01.2017 40,000.00
2. 24.01.2017 35,000.00
3. 31.01.2017 35,000.00
4. 07.02.2017 20,000.00
5. 14.02.2017 1,00,000.00
6. 21.02.2017 1,20,000.00
7. 28.02.2017 65,000.00
8. 07.03.2017 85,000.00
9. 23.03.2017 12,071.00
5,12,071.00
5
12. It is stated that the suit of the plaintiff is false, frivolous and baseless and is liable to be dismissed with cost.
13. The plaintiff has filed replication in which the plaintiff has reiterated the facts as stated in the plaint and denied the objections/allegations made by the defendants. It is denied by the plaintiff that the defendants had place the order upon the plaintiff through their agent Sh. Sharad Kumar Gupta. The plaintiff has nothing to do with the said Sharad Kumar Gupta. It is denied that the plaintiff supplied the goods worth Rs.5,12,071.00 to the defendants and the defendants made the payment as alleged.
ISSUES
14. On the pleadings, following issues were settled for trial.
i) Whether the present suit, which has been instituted in the name of a proprietorship firm, is not maintainable under law? If so, its effect. (OPD)
ii) Whether the plaint has not been duly signed and verified within the meaning of order VI rule 14 CPC? If so, its effect.(OPD)
iii) Whether no authority was given to Mr. Kartik to appoint and execute vakalatnama in 6 favour of any pleader/legal practitioner? If so, its effect.(OPD)
iv) Whether the suit has not been filed in accordance with section 26 (2) of CPC and whether the affidavit filed by the plaintiff is not in the form and manner prescribed under order VI rule 15A? If so, its effect. (OPD)
v) Whether the plaint is not in accordance with order VII rule 2A (1) CPC? If so, its effect.
(OPD)
vi) Whether the suit is not in accordance with order VII rule 1 (i) CPC? If so, its effect.(OPD)
vii) Whether the plaintiff is entitled for a decree for recovery of Rs.4,79,362.00 as prayed for? (OPP)
viii) Whether the plaintiff is entitled for any interest, if so, at what rate?(OPP)
ix) Relief.
PLAINTIFF'S WITNESSES
15. On behalf of the plaintiff two witnesses have been examined viz PW-1 Sh.Kartik Kumar, Manager and PW-2 Sh. Man Mohan Gupta, Chartered Accountant. PW-1 Sh. Kartik Kumar has proved his affidavit as PW-
1/A.
7
DOCUMENTS RELIED UPON BY THE
PLAINTIFF:-
Ex.PW1/1 Authority letter in favour of PW-1 Sh.
Kartik Kumar.
Ex.PW1/2 Copies of GST Certificate and
(Colly.) certificate under Sec.65B of the
Indian Evidence Act.
Ex.PW1/3 Statement of account along with
(colly.) copies of bills
Ex.PW1/4 Copies of income tax return along
with debtor list, balance sheet, profit and loss account.
Ex.PW-1/5 Office copy of legal notice.
Ex.PW-1/6 Registered AD receipts.
Ex.PW-1/7 Postal tracking report
Ex.PW-2/1 Tax audit report, balance sheet,
(Colly.) trading profit and loss account, list of
sundry creditors and list of sundry
debtors of M/s. Ocean Fabtex for the
financial year 2017 ending on
31.03.2017.
DEFENDANT'S WITNESSES
16. On behalf of the defendants, defendant no.2 Sh. Puneet Gupta, proprietor of Mangal Enterprises, defendant no.1 has been examined, who proved his affidavit as DW-1/A. 8 PW-1/D1 A paper from the office of the plaintiff firm acknowledging the receipt of Rs.5,12,071.00 in cash from the defendants.
DW-1/1 Statement of account w.e.f.
01.01.2017 to 31.03.2017.
17. I have heard Ld. Counsel for the Plaintiff Shri Swadesh Bansal and Ld. Counsel for the defendant Shri Man Mohan Gupta and meticulously gone through the entire record including the testimonies, documents proved on record and written submissions filed on behalf of the defendant.
FINDINGS ON THE ISSUES Issue no.1:-
i) Whether the present suit which has been instituted in the name of a proprietorship firm is not maintainable under law? If so, its effect. (OPD)
18. The present suit has been filed in the name of proprietorship concern i.e. by M/s Ocean Fabtex. The name of the proprietor is not mentioned in the memo of parties. In para 1 of the plaint the name of the proprietor Ms. Sanju Ramesh w/o Ramesh Chand has been disclosed, who authorized Sh. Kartik Kumar, Manager of the firm vide letter dated 21.01.2019 to institute the petition for recovery against the defendant.
919. Order XXX Rule 10 CPC provides that any person carrying on business in a name or style other than his own name or a Hindu Undivided Family carrying on business under any name, may be sued in such name or style as if it were a firm name.
20. I place reliance upon Svapn Constructions vs. IDPL Employees Cooperative Group Housing Society Ltd. and ors. 2006 III AD (Delhi) 212 wherein the respondents raised objections that the petition was filed by M/s Svapn Constructions, which was a sole proprietorship concern, which was not a legal entity and consequently, the petition was not maintainable. The petition was filed in the name of a proprietorship concern which is neither a registered company nor a joint family nor a partnership firm. A petition or legal proceedings can be filed by a legal entity. In the said case, respondents contended that a petition or legal proceedings in the name of a sole proprietorship concern which is not a legal entity, is not maintainable. It was observed by the Hon'ble Court that no plausible arguments have been advanced by the petitioner as to how the petition in the name of a proprietorship firm which is neither a registered company nor a joint family nor a proprietorship firm is maintainable. Hon'ble High 10 Court held that :
"15. Perusal of the petition reveals that petition has been filed in the name of sole proprietorship firm which is not a legal entity through its sole proprietor. A sole proprietorship firm is not a legal entity which can sue in its own name through any two persons claiming or being liable as partners and carrying on business may sue or be sued in the name of firm of which such persons are partners at the time of accruing of cause of action, however, under Order XXX of the Code of Civil Procedure and under any other provision of Code, a person carrying on business in a name other than his can sue in the name other than his."
21. It is undisputed that the plaintiff is a proprietorship concern. It is established law that a proprietary concern is not a legal entity and a suit can only be instituted in the name of the proprietor. I place reliance upon P.C. Advertising Vs. MCD (1998) 73 DLT 259, wherein the court observed 'it appears this plaint does not disclose cause of action for a number of reasons. Firstly the plaint discloses that Shyam Malik is sole proprietor of P.C. Advertising, but he has not filed the suit in his own name, the plaintiff concern is neither a partnership firm nor HUF concern which would be covered by order XXX rule 10 CPC. Since there is mis description of plaintiff in the title of the suit, the plaint does not fulfil the requirement of order VII rule 1 nor of order XXX rule 10'.
I also place reliance upon Miraj Marketing Corporation Vs. Vishaka Engineering 2004 (115) DLT 471.
1122. The present suit should have been filed by Ms. Sanju Ramesh w/o Sh. Ramesh and not in the name of M/s Ocean Fabtex. In the plaint, no prayer has been made to sue in the name of the sole proprietorship concern.
23. Since the plaintiff is a proprietary concern which is not a legal entity, the present suit could not have been instituted in the name of the proprietary concern but should have been filed in the name of its proprietor. Accordingly, I decide the issue no.1 in favour of the defendant and against the plaintiff holding that the present suit is not maintainable under law.
Issue no.2 :
ii) Whether the plaint has not been duly signed and verified within the meaning of order VI rule 14 CPC? If so, its effect.(OPD)
24. The present plaint has been signed by Sh. Kartik Kumar, Manager of M/s Ocean Fabtex and his affidavit has been filed verifying the facts averred in the plaint. Order VI Rule 14 CPC provides that every pleadings shall be signed by the parties and his pleader. It is further provided that where a party pleading, by reason of absence or for other good cause; unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend 12 on his behalf.
25. The instant plaint has not been signed by Ms. Sanju Ramesh. Her name is not even reflected in the memo of parties as the proprietor of M/s Ocean Fabtex. No reason has been disclosed or any good cause shown to show that the proprietor of the plaintiff's firm is unable to sign the pleading.
26. In his cross examination, PW1 Mr. Kartik Kumar has stated that Smt. Sanju Ramesh did not sign and verify the plaint for the reason that for the last three to four years she was not having good health due to her old age ailments. She is aged about 52 years. No document has been filed to show any good cause or to assign any reason as to why the plaint has not been signed any verified by Smt. Sanju Ramesh, the proprietor of the plaintiff's firm. The plaint has been signed and verified by one Sh. Kartik Kumar on the basis of authority letter on the letterhead of the plaintiff firm. No GPA has been filed by the plaintiff in favour of Sh. Kartik Kumar.
27. Inasmuch as the suit has not been filed on behalf of Smt. Sanju Ramesh, she could not have given any authority to Mr. Kartik Kumar to sign, verify the plaint. Accordingly, I hold that the plaint has not been signed and verified by a proper person within the meaning of 13 Order VI Rule 14 CPC. Issue no.2 is accordingly decided in favour of the defendant and against the plaintiff.
Issue no. 3:
iii) Whether no authority was given to Mr. Kartik to appoint and execute vakalatnama in favour of any pleader/legal practitioner? If so, its effect. (OPD)"
28. One of the preliminary objections taken by the defendant is that no authority was given to Mr. Kartik Kumar by the plaintiff to appoint and / or execute vakalatnama in favour of any pleader/legal practitioner on behalf of the plaintiff firm. It is argued by the counsel for the defendant that the counsel for the plaintiff Mr. Swadesh Bansal has not been duly appointed to act, to appear and to plead the suit on behalf of the plaintiff in the present case. The vakalatnama of the counsel Mr. Swadesh Bansal is signed by Mr. Kartik Kumar.
29. Authority letter relied upon by PW-1 Sh. Kartik Kumar is as under :-
" I, Ms. Sanju Ramesh W/o Shri Ramesh Chand, Proprietor of the firm M/s Ocean Fabtex, E- 16/707, Tank Road, Karol Bagh, New Delhi- 110005 do hereby appoint Shri Kartik Kumar, Manager of the firm as authorized representative of the firm and authorized him to sign, verify the plaint and institute any suit, complaint, petition, 14 swear affidavit, lead evidence oral or by way of affidavit and to represent on my behalf in any case against M/s Mangal Enterprises, 5645/1, Gali No.78, Rehgarpura, Karol Bagh, New Delhi- 110005 and its Prop/Partner/Authorized Signatory, Shri Puneet as my authorized representative"
30. It clearly shows that Sh. Kartik Kumar, Manager of the firm has not been authorized to appoint or to execute any vakalatnama in favour of any pleader / legal practitioner on behalf of the plaintiff firm. In his cross examination PW-1 has admitted that he has not been given any authority to engage a counsel. In his cross examination PW-1 Sh. Kartik Kumar has stated "I do not have any appointment letter regarding my employment as a Manager with the plaintiff firm. I was appointed sometime in August, 2015 but I cannot tell the exact date. I started working at a salary of Rs.15,000/- and at present I am being paid Rs.20,000/-. I have no other income. I do not file any ITR. It is correct that Ex.PW1/1 is not on any stamp paper ......... It is correct that present counsel of the plaintiff firm was not appointed / engaged by Smt. Sanju Ramesh. It is correct that even the vakalatnama in the court file does not bear the signature of Smt. Sanju Ramesh. It is correct that after going through the document Ex.PW1/1 I say that I have not been given any authority by Smt. Sanju Ramesh to appoint the present lawyer in this case."
1531. In view of the aforesaid, I find that the counsel in the present case has not been duly appointed to act, to appear and plead suit on behalf of the plaintiff in the instant case. Accordingly, I hold that no authority was given to Mr. Kartik to appoint and / or to execute vakalatnama in favour of any pleader/legal practitioner. Issue no.3 is accordingly decided in favour of the defendant and against the plaintiff.
Issue no.4 :-
iv). Whether the suit has not been filed in accordance with section 26 (2) of CPC and whether the affidavit filed by the plaintiff is not in the form and manner prescribed under order VI rule 15A? If so, its effect. (OPD)
32. It has been argued on behalf of the defendant that the present suit has not been filed in accordance with section 26 (2) of the Code of Civil Procedure which prescribed that in every plaint, facts shall be proved by affidavit.
33. In its application to any suit in respect of a commercial dispute of a specified value, in section 26, in sub section 2 the following proviso has been inserted namely "provided that such an affidavit shall be in the form and manner as prescribed under Order VI Rule 15A." The plaintiff has failed to file the requisite affidavit.
1634. The pleadings in the instant suit have not been verified in accordance with Order VI Rule 15A CPC inasmuch as the affidavit has not been filed in accordance with Order VI Rule 15A (2) CPC.
35. The pleadings in the present suit has not been verified by statement of truth. It is not stated in the affidavit filed along with the plaint that the deponent is sufficiently conversant with the facts of the case or that he has examined all relevant documents and records in relation thereto.
36. It is not stated in the affidavit that which paragraph of the plaint are true to his knowledge and which paragraphs are based on information received which he believes to be correct and which paragraphs are based on legal advice.
37. It is not specifically stated that no false statement or concealment of any material fact, document on record or that he has included the information that is relevant to the present suit. It is not stated in the affidavit that all documents in his power, possession, control or custody, pertaining to the facts and circumstances to the proceedings initiated by the plaintiff have been disclosed and copies thereof annexed with the plaint and that he does not have any other document in his power, possession, control or custody.
1738. It is not stated in the affidavit that the pleadings comprises of how many pages, each of which has been duly signed by the deponent. It is not stated that the annexures are true copies of the documents referred to and relied upon. It is not stated that the deponent is aware that for any false statement or concealment, he shall be liable for action under the law for the time being in force.
39. Recently the Hon'ble Court, in Oil and Natural Gas Corporation Ltd. vs. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) and M/s Megha Engineering and Infrastructure Limited (MEIL) 2019 SCC Online Del. 10456 has laid down certain vital parameters which need to be complied with before a petition can be termed as proper petition and one of the vital parameters is that the statement of truth/affidavit should be signed by the parties and attested by the Oath Commissioner.
40. In the Oil and Natural Gas Corporation Ltd. (Supra) it has been observed "This in my view is a minimum threshold that should be crossed before the petition is filed and can be treated as a petition in the eyes of law. The rationale behind insisting of these fundamental compliances to be observed while filing a petition, is not far to see. Vakalatnama is an authority which authorizes an 18 advocate to act on behalf of a party as a power of attorney and to carry out certain acts on his behalf. Therefore, the vakalatnama is the first step and a precursor to the preparation of a petition. The statement of truth accompanying a petition or an application is sworn by the deponent who states on oath that the contents of the accompanying petition have been drafted under his instructions and are true and correct to his knowledge or belief..... The statement of truth was not filed as per the format under the Commercial Courts Act; (f) The memo of parties did not contain sufficient details like the parentage, mobile number, email address etc..... Thus, even this final can be only termed as 'non-est' filing.
41. Order VI Rule 15A sub rule (4) CPC clearly states that where a pleading is not verified in the manner provided in the sub rule (1), the party shall not be permitted to rely upon such pleading as evidence or any of the matters set out therein. In other words, the legislature has clearly set out what consequences would follow if the pleadings were not verified in the manner as set out thereunder. The defect no doubt, is a curable defect. However, the plaintiff did not cure the defect and despite objection on behalf of the defendant continued with the same affidavit in support of the plaint. In the circumstances, the court has the option of either not accepting the such pleadings, not allowing the parties to lead evidence thereon and even the option of striking 19 out such pleadings.
42. Accordingly, in view of the aforesaid discussion, I decide the issue no.4 in favour of the defendant and against the plaintiff.
Issue no.5 :-
v) Whether the plaint is not in accordance with order VII rule 2A (1) CPC? If so, its effect.(OPD)
43. The plaint is not in accordance with Order VII Rule 2A CPC which provides that where the plaintiff seeks interest, the plaint shall contain a statement to that effect alongwith details set out under sub rule (2)&(3). Sub rule (2) provides that where the plaintiff seeks interest, the plaint shall state whether the plaintiff is seeking interest in relation to a commercial transaction within the meaning of section 34 of CPC and furthermore if the plaintiff is doing so under the terms of the contract or under an Act, in which case the Act is to be specified in the plaint; or on some other basis and shall state the basis of that.
44. Sub rule (3) provides that the plaintiff shall also state-
a). The rate at which interest is claimed
b). The date from which it is claimed
c). The date to which it is calculated
d). The total amount of interest claimed to the date of 20 calculation; and
e). The daily rate at which interest accrues after that date.
45. The plaint is devoid of any such details. It is simply mentioned in the prayer clause that a decree be passed in favour of the plaintiff and against the defendant alongwith future interest @ 18% p.a. or at any other rate which this Hon'ble Court may deem fit and proper from the date of filing of the suit till realization.
46. Clearly there is noncompliance with the directives contained in Order VII Rule 2A. Accordingly, I hold that the plaint is not in accordance with Order VII Rule 2A (1) CPC. Issue no.5 is accordingly decided in favour of the defendants and against the plaintiff.
Issue no.6:-
vi) Whether the suit is not in accordance with order VII rule 1 (i) CPC? If so, its effect.(OPD)
47. Order VII rule 1 deals with the particulars to be contained in the plaint and order VII rule 1 (i) specifically states that the plaint shall contain a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. In the plaint in para 9 it is stated that the value of the suit for the purposes of court fee and jurisdiction on which the proper court fees has been 21 paid with the plaint. It is not stated how the suit has been valued for the purposes of court fee and jurisdiction and how much court fee has been paid by the plaintiff.
48. The plaintiff has failed to give a statement of the value of the subject matter of the suit for the purposes of court fees and jurisdiction. This suit has been drafted in a shoddy manner. Issue no.6 is accordingly decided in favour of the defendants and against the plaintiff.
49. Issue no.7 and 8
vii) Whether the plaintiff is entitled for a decree for recovery of Rs.4,79,362.00 as prayed for?(OPP)
viii) Whether the plaintiff is entitled for any interest, if so, at what rate?(OPP)
50. As per the case of the plaintiff the plaintiff firm supplied fabric to the defendant no.1 from time to time for an amount of Rs.5,19,362/-, out of which the defendant only paid Rs.40,000/- in cash and therefore, an amount of Rs.4,79,362/- is due and pending.
51. In his written statement, the defendant denied that the goods worth Rs. 5,19,362/- were supplied. However, it is stated that goods worth Rs. 5,12,071/- were supplied and the amount has been paid back to the plaintiff in cash on different dates. The defendant produced PW-
221/D1 to show that the cash were paid on different dates and the same is allegedly bearing signatures of PW-1 Kartik Kumar. The defendant also produced bank statement of account w.e.f. 01.01.2017 to 31.03.2017 DW-1/1 to show that the amount was withdrawn from the bank on different dates to make payment. DW-1 Puneet Gupta, defendant no.2 has stated that the plaintiff issued one receipt Ex.PW-1/D1 in acknowledgment of the cash payment made to him.
52. The plaintiff has examined two witnesses in support of its case. PW-1 is Kartik Kumar, Manager of M/s. Ocean Fabtex and PW-2 Sh. Man Mohan Gupta, Chartered Accountant. PW-1 Kartik Kumar has produced copies of GST certificate and certificate under section 65 B, statement of account along with copies of bills and the copies of income tax returns along with debtor list, balance sheet and profit and loss account. PW-1/2 is the certificate under section 65 B of the Indian Evidence Act issued by Ms. Sanju Ramesh, proprietor of M/s. Ocean Fabtex. However, PW-1 has stated that the aforesaid document i.e. PW-1/2 was prepared in the office of the plaintiff firm by his cousin namely Mr. Dinesh. He could not tell the make and model of the computer in which Ex.PW-1/2 was prepared. The certificate under Sec.65 B is not bearing any date. PW- 1 stated that the said computer at present is not working as its hard disk was corrupted. He could not tell the 23 make and the model of the printer. The printer is also not in a working condition now a days. PW-1/3 is the ledger account of Mangal Enterprises maintained by Ocean Fabtex and in absence of an effective 65B certificate, the same is not duly proved. PW-1 admitted that Mr. Dinesh is not an employee of the firm and PW- 1/2 does not bear the signature of Mr. Dinesh. He admitted that PW-1/2 does not bear his signature. He admitted that document PW-1/3 i.e. ledger account bears his signature but his designation is not mentioned on it. PW-1/4 (colly) is the income tax returns, trading and profit and loss account, balance sheet and list of sundry debtors. PW-1 admitted that the trading and profit and loss account of the plaintiff firm does not bear the signatures of the Chartered Accountant Sh. Man Mohan Gupta & Co. Although his name at point X is mentioned.
53. PW-1 admitted that there were cuttings on bill no. 173 dated 09.08.2016, bill no.107 dated 24.08.2016. PW-1 stated that the said cuttings were not made by them. He admitted that the plaintiff firm never raised objections regarding this cutting at any time and the document was in their power and possession. Besides that there is also cutting on bill no.111.
54. The documents relied upon by the plaintiff firm are not trust worthy. PW-1/2 certificate under section 65B of 24 the Indian Evidence Act was not proved in accordance with law. The scribe of the document Mr. Dinesh and its signatory Ms. Sanju Ramesh failed to appear and depose in the court. The plaintiff's witness was unable to tell the make and model of the computer. The bills relied upon by the plaintiff have cuttings. It is not disclosed who made those cuttings as it is stated by PW-1 that they never raised any objection to the cuttings in the invoices. Further, the pleadings are not verified as set out under Order VI Rule 15A (1) and hence the plaintiff cannot be permitted to rely upon such pleadings.
55. The onus is upon the plaintiff to prove that the defendant is liable to pay an amount of Rs.4,79,362/- along with interest. The provision of section 101 of the Indian Evidence Act clearly provides that the burden of proof rests on the party who substantially asserts it. The burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Further law under section 103 of the Act, further amplifies the general rule of Section 101 of the Indian Evidence Act that the burden of proof lies on the person, who asserts the affirmative of the facts in issue.
56. The plaintiff has not been able to discharge the onus placed upon him. Accordingly, I hold that the plaintiff is not entitled for a decree for recovery of Rs.
254,79,362/- or any interest thereon. Issue no.7 and 8 are accordingly decided in favour of the defendants and against the plaintiff.
Relief
57. In the light of the above discussions, the suit is dismissed with cost. Decree sheet be prepared. File be consigned to Record Room.
(NISHA SAXENA) District Judge (Commercial Courts)-04, Central, Tis Hazari Court, Delhi Announced through video conferencing on 17.07.2021 rt 26