Delhi District Court
M/S Assured Bpo Services Opc Private ... vs M/S Oravel Stays Pvt Ltd on 30 April, 2024
IN THE COURT OF Ms. NEELAM SINGH
DISTRICT JUDGE (COMM-02),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (COMM) 40/2018
M/s Assured BPO Services OPC Private Limited
E-191, Second Floor,
Lajpat Nagar-1,
New Delhi-110024
Through Director
Sh. Praveen Roach ..... Plaintiff
Vs.
M/s Oravel Stays Pvt. Ltd.
Regd. Address at
Rectangle Regus,
Level-4, Rectangle-1,
Commercial Complex,
D-4, Saket,
New Delhi-110017
Also at;
Unit 325, Tower-B2
Spaze IT Park,
Sohna Road, Sector-49,
Gurgaon (Haryana) .....Defendant
Date of Institution: 16.11.2018
Arguments concluded on : 27.04.2024
Date of Judgment: 30.04.2024
Judgment
1. Vide this judgment, I shall decide the present suit filed by
M/s Assured BPO Services OPC Private Limited (hereinafter
referred to as plaintiff) seeking relief of recovery of Rs.
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M/s Oravel Stays Pvt. Ltd.
1,80,59,724/- (Rupees One Crore Fifty Nine Lakhs Seven
Hundred Twenty Four only) against M/s Oravel Stays Pvt Ltd.
(hereinafter referred to as Defendant).
The crux of facts stated in brief is noted below:
Case of the plaintiff
2. The plaintiff and defendant have entered into an agreement
for business process outsourcing (BPO) involving conducting of
voice log audits, inbound calling, outbound calling, quality
monitoring and other support services for OYO rooms.
Defendant M/s Oravel Stays Pvt. Ltd., is a company incorporated
under The Companies Act, 1956 and is doing the business of
assisting customers through online travel company to find bed
and breakfast, hotel, guest houses etc. through its website and
other online channels under its mark OYO rooms. Plaintiff
company is a sole proprietorship concern in the name and style of
M/s Assured BPO Services owned by Sh. Praveen Roach.
3. Three LOIs dated 28.07.2015, 20.08.2015 and 31.08.2015
were agreed upon and finally reduced into writing between both
the parties. It is the case of the plaintiff that he made massive
investments to the tune of Rs. 90 Lakhs as per the specifications
of the defendant company. Plaintiff had hired 80 employees, all
of whom were interviewed, trained and certified by defendant.
Plaintiff raised invoices from time to time and maintained a
running account. As per the running account, an amount of Rs.
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M/s Oravel Stays Pvt. Ltd.
54,40,326/- became due and payable by the defendant company
to the plaintiff. Defendant had terminated the LOIs and they are
liable to pay further fees of Rs. 56,000/-, Rs. 39000/- and Rs.
45000/- for the services under LOI. As per the case of the
plaintiff, defendant is liable to pay an amount of Rs.
1,13,02,525/- to the plaintiff. Plaintiff has calculated interest at
the rate of 12 per cent per annum on the abovesaid amount and
has valued his suit for an amount of Rs. 1,80,59,724/-. It is the
case of the plaintiff that defendant has not paid this amount and
hence the present suit.
Case of the defendant
4. Defendant has contested the suit by filing Written
Statement and submitted that the suit of the plaintiff is not
maintainable in any manner as plaintiff is guilty of suppressing
the material facts from this Court and the present suit is nothing
but a misrepresentation and concealment of material facts from
the Court. It is submitted that the director of the plaintiff Mr.
Praveen Roach at the contemporaneous period alongwith his
colleague Mr. Manish Pande and one former employee of the
defendant Mr. Jatin Kumar who was working as head of the
reservation department of the defendant w.e.f. 19.12.2014 till
07.10.2015, connived together in order to extract money and
unfair profit through the defendant. It is further submitted that
Mr. Jatin Kumar, Mr. Pravin Roach and Mr. Manish Pande have
previously worked together in Aegis BPO. Plaintiff while acting
through these said persons exploited the position held by Mr.
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M/s Oravel Stays Pvt. Ltd.
Jatin Kumar and secured the contract with the defendant for
providing certain BPO services on the basis of a false
representation, composed only to draw monetary benefits for
their personal gains. It is submitted that defendant has an online
travel company which help consumers find and to book bed and
breakfast, hotels, guesthouse online through its website
www.oyorooms.com and other online channels. The defendant,
under its mark OYO rooms provides a market place of branded
budget hotels/bed & breakfast and the defendant through its
online technology platform provides standardized budget hotels
to the customers.
5. It is further submitted that Mr. Jatin Kumar in furtherance
of his affinity with the plaintiff approached the defendant
company, recommending the plaintiff as the outsourcing
company for providing BPO services to the defendant. It is
submitted that Mr. Jatin Kumar orchestrated an exaggerated and
elaborate image of the affairs of the plaintiff, which, to say the
least, was grossly incorrect and an absolute misrepresentation of
the actual appalling and deficient business affairs of the plaintiff.
It is submitted that on the recommendation of Mr. Jatin Kumar,
defendant decided to engage the plaintiff company for providing
BPO services to the defendant and executed 3 LOIs with the
plaintiff. At the time of execution of LOI, defendant has made a
payment of Rs. 3 Lakhs to the plaintiff. It is submitted that
number of e-mails have been written on behalf of defendant to
the plaintiff informing the plaintiff about his various deficiencies
and issues existing in their services at that time. However, the
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M/s Oravel Stays Pvt. Ltd.
plaintiff neither resolved the issues nor cured any of the
deficiencies. It is submitted that in fact plaintiff failed to even
respond the e-mail communication sent by the defendant.
6. It is submitted that at the time of signing of LOIs, plaintiff
company was not even incorporated and it was only incorporated
on 21.08.2015 and the plaintiff company was only the
proprietorship firm of Mr. Praveen Roach but it has been shown
as a company to evade procurement procedure followed by
entities such as defendant company for its vendors and it is a
gross and vexatious manipulation of material facts. It is further
submitted that Mr. Jatin Kumar also run a recruitment agency
called Best Recruitment Services which was not revealed by him
to the defendant despite his long professional association with the
defendant. This opaque and vexatious conduct of Mr. Jatin
Kumar further manifest the fact that he was hand in glove with
the plaintiff. It is submitted that during the investigation done on
behalf of the defendant, it has been found that the letter of intent
which were executed between plaintiff and defendant were
prepared by Mr. Jatin Kumar and Mr. Manish Pande in collusion
with Mr. Praveen Roach with the objective of enriching
themselves at the cost of defendant. The said letter of intents
were signed on behalf of the defendant only on the false
assurances and misrepresentation of Mr. Jatin Kumar.
7. Defendant has admitted the fact that 3 LOIs were signed
between plaintiff and defendant but despite that defendant has
never made an investment of Rs. 90 Lakhs in any manner as no
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M/s Oravel Stays Pvt. Ltd.
invoice in detail and other relevant receipts have been placed on
record in any manner by the plaintiff. Defendant has denied that
plaintiff in any manner is entitled for recovery of the amount of
Rs. 1,80,59,724/-.
Issues
8. After completion of pleadings, issues were framed in this
case by Ld. Predecessor of this Court on 07.01.2021 as under;
1. Whether the present suit as instituted by the plaintiff is
barred by limitation? OPD
2. Whether the invoices as issued by the plaintiff were in
contravention to the terms of the letter of intent?OPD
3. Whether plaintiff is entitled to recover an amount of Rs.
1,80,59,724/- (Rupees One Crore Fifty Nine Lakhs Seven
Hundred Twenty Four only)? OPP
4. Whether the plaintiff is entitled to pendente lite and
future interest @ 12 % per annum on the amount claimed?
OPP
5. Relief.
Plaintiff's Evidence
9.1 The matter then was kept for evidence. PW-1 Praveen
Roach has tendered his evidence by way of affidavit Ex. PW1/A.
He has relied upon following documents;
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M/s Oravel Stays Pvt. Ltd.
1. Copy of certificate of Incorporation is
Ex.PW1/1.
2. Copy of email dated 22.08.2015 is Ex.PW1/4.
3. Copies of Letter of Intent are Ex.PW1/5 to
Ex.PW1/7.
4. Copy of ledger of audit is Ex.PW1/8 (OSR).
5. Termination letters are Ex.PW1/10 (a) and
Ex.PW1/10 (b).
6. Legal notice dated 27.11.2015 is Ex.PW1/11.
7. Reply of defendant to notice dated 27.11.2015 is
Ex.PW1/13.
(Note: (i) Ex.PW1/2 and Ex.PW1/3 i.e. certificate of
Statutory Auditor dated 17.05.2016 and Copy of email
dated 13.08.2015 from Ministry of Corporate Affairs
were being de-exhibited as the same were not placed
on record by the plaintiff.
(ii) Copies of invoices i.e. Ex.PW1/9 (a) to Ex.PW1/9
(e) were being de-exhibited as these documents had
been filed by the defendant.
(iii) Postal receipts of legal notice are which are
mentioned as Ex.PW1/12 (a) to Ex.PW1/12 (e) in the
affidavit were being de-exhibited as the same were not
on record.)
9.2 PW-1 has been cross-examined at length by Ld. Counsel for
defendant. During his cross-examination, PW-1 has deposed that
he was working as a business consultant in a BPO house. He has
submitted that his first job was at Icon Contact Center Services
Pvt. Ltd. and he was Vice President with Aegis BPO in which he
serving a number of clients e.g. Vodafone, Unilever, HDFC life
Insurance and many others. He has admitted the fact that to run
the business of BPO service provider, there is need for specific
skill and expertise like people handling, process handling and
technological knowhow of the business. In his cross-examination,
he has further admitted that he was the sole Director of the
plaintiff company and he currently do not have any employees
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M/s Oravel Stays Pvt. Ltd.
working at plaintiff company and at present he is not providing
services to any clientèle. He has admitted the fact that he has no
expertise in hospitality business.
9.3 He has admitted that no break up of INR 90 lakhs
mentioned in the plaint has been given in the suit. He has further
stated that sometime around April 2015, he got to know through
his acquaintances that the defendant require to engage BPO
service providers and these acquaintance were Mr. Jatin Kumar
and Mr. Manish Pande. He has admitted the fact that they simply
take the first level of interview and thereafter, the qualification for
selection interview and training and the certification post training
had been done by defendant. He has admitted the fact that he has
not placed on record any documents to show that he has engaged
employees. He has admitted the fact that employees were sourced
through multiple sources such as newspaper advertisement,
recruitment firms and references. He has admitted that some of the
employees could have been recruited from Best Recruitment
Services.
9.4 He has admitted that he knew Mr. Manish Pande and Mr.
Jatin Kumar and in July, 2015 Mr. Manish Pande joined the
plaintiff company. His role and responsibilities in the plaintiff firm
was sourcing technology, helping in administration, setting up
infrastructure and sometime depending upon the exigency of work
or the situation at work. He knew Mr. Jatin Kumar since 2007-08.
He further submitted that sometime in June, 2015 he had sent the
plaintiff company's portfolio to the defendant for BPO service. He
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M/s Oravel Stays Pvt. Ltd.
further stated that he had sent the plaintiff company's portfolio to
one Mr. Karawal and Mr. Jatin Kumar. He has admitted that Mr.
Jatin had internally recommended the plaintiff company to the
defendant. He has also admitted that Mr. Jatin and Mr. Manish
know each other. He has denied the suggestion that the plaintiff
company would not have procured the LOIs without the help of
Mr. Jatin Kumar. He has accepted that plaintiff company was a
sole proprietorship firm at the time of execution of LOI and later
on it was incorporated. He has admitted that he has not answered
the emails sent by the plaintiff pertaining to the services and their
concerned as it had nothing to do with the performance of
workers. A number of questions were put to the witness regarding
e-mails written by the defendant pertain to the poor staff hired by
him but the witness has answered that he has nothing to do with
this fact as training it to be given by the defendant company. Later
on, he answered that he engaged with the defendant company to
resolve the same. He has admitted the fact that invoice raised by
the plaintiff were not cleared by the defendant. He has admitted
the fact that supporting documents pertaining to the invoices are
not on record. He has admitted the fact that despite not clearing
the plaintiff's invoice, he has not terminated the LOIs. Thereafter,
plaintiff's evidence was closed vide separate statement of PW-1.
Defendant's Evidence
10.1 Matter was then fixed for defendant's evidence. Defendant
has examined AR of defendant Sh. Yogesh Vishnoi as DW-1. DW-
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M/s Oravel Stays Pvt. Ltd.
1 Sh. Yogesh Vishnoi has tendered his evidence by way of
affidavit Ex. DW1/A and relied upon following documents:
1. Copy of authority letter is Mark A.
2. Copy of emails by Mr. Sheikh Abdul Rehman are
already exhibited as Ex.PW1/D1 on 06.12.2023.
3. Copy of email dated 14.10.2015 is Ex.DW1/3.
4. Copy of resignation letter is Mark B.
5. Partnership deed dated 21.01.2015 is Mark C.
6. Copy of investigation report is Mark D.
10.2 During cross-examination by Ld. Counsel for plaintiff, DW-
1 has deposed that he has admitted the fact that criminal complaint
filed by the defendant against the plaintiff in Gurugram Court was
dismissed. He has denied the fact that there is no discrepancy in
the services of the plaintiff provided to the defendant. He has
admitted the fact that LOIs bears signature of Sh. Ritesh
Aggarwal who was CEO and founder director of the defendant
company at that time. He has also admitted that LOIs were acted
upon by the parties. He has further submitted that when plaintiff
raised invoice and demanded payment, claimed in the present suit,
defendant company had asked the plaintiff to hold on till
completion of the internal investigation. He has admitted that
invoices were on hold due to discrepancies and below par services
issue. He has denied that there was no deficiency in the services
provided by the plaintiff to the defendant. Thereafter, defendant's
evidence was closed vide separate statement of DW-1.
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M/s Oravel Stays Pvt. Ltd.
Final Arguments
11. The matter was listed for final arguments. Ld. Counsel for
the plaintiff as well as Ld. Counsel for defendant made their
respective submissions.
Arguments on Behalf of the Plaintiff:
12.1 Ld. Counsel for the plaintiff has argued that plaintiff was
engaged by defendant for BPO Services and three Letters of
Intents were executed between the plaintiff and defendant to carry
out the services of the BPO. It is argued that plaintiff raised four
invoices for payment by the defendant against the services
rendered by the plaintiff to the defendant. It is further argued that
one of the pleas taken by the defendant for not making the
payment is that there were deficiencies in services but these
deficiencies were never told by the defendant to the plaintiff.
12.2 It is argued by Ld. Counsel for the plaintiff that as per Order
VIII Rule 5 CPC, there must be specific denial of each allegations
by the defendant in the Written Statement (WS) but in the present
case, no specific denial has been made by the defendant in their
WS. It is argued that where a defendant denies an allegation or
fact in the plaint, he must not do so evasively but answer the point
of substance. It is argued that if it is alleged that he received a
certain sum of money, then it shall not be sufficient to deny that he
received the particular amount but he must deny that he received a
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M/s Oravel Stays Pvt. Ltd.
particular sum (value thereof), otherwise it shall not be sufficient
to deny the fact.
12.3 It is further argued that the preliminary submissions made
by the defendant in the Written Statement has not been proved by
the defendant. It is argued that defendant has denied that plaintiff
had spent an amount of Rs. 1 Crore but this mere denial is not
sufficient by the defendant, rather it must be very specific. It is
argued that plaintiff had provided services to the defendant and
had also provided the breakup of amount spent by the plaintiff in
providing service to the defendant and hence, the suit be decreed
in favour of plaintiff for the sum of Rs. 1,80,59,724/-.
Counter-Arguments on Behalf of the Defendant:
13.1 Per contra, it is argued by Ld. Counsel for the defendant
that LOIs in question have been obtained by the plaintiff by way
of fraud. It is argued that plaintiff was not eligible to provide
services to the defendant and accordingly he was an utter failure
in providing the services of BPO and there were a number of
deficiencies which has been explained/ told/ communicated to the
plaintiff on various occasions. It is argued that defendant has
placed on record the documents i.e. page 26 and 30 which shows
that a number of e-mails have been sent by the defendant to the
plaintiff regarding deficiencies in service but plaintiff even did not
bother to reply these mails.
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M/s Oravel Stays Pvt. Ltd.
13.2 It is argued that one Mr. Jatin who was working with
defendant company was allured by the plaintiff in securing the
LOIs. It is further argued that the wife of Mr. Jatin is running an
employment agency and entire staff has been taken by the plaintiff
from that agency which is in contravention of the employment of
Mr. Jatin with the defendant company. It is submitted that the case
of the plaintiff is based on conjunctures and surmises in the
manner that if there are pleadings to a fact, then there is no
document or if there is a document on record, then there is no
pleading to that effect. Ld. Counsel for the defendant has taken me
to page 68 of the plaintiff's documents.
13.3 Ld. Counsel for the defendant has also argued that the case
of the plaintiff is barred by limitation as admittedly, the cause of
action accrued in favour of plaintiff on 01.10.2015 which expired
on 28.09.2018 and admittedly plaintiff has filed the suit on
15.11.2018 which is beyond the period of limitation provided
under The Limitation Act, 1963. Apart from this, Ld. Counsel for
defendant has argued the case on technical grounds by submitting
that since being a commercial suit, there is no statement of truth
filed alongwith plaint and even pleadings are not verified as per
the mandate of Commercial Courts Act, 2015. It is further argued
that plaintiff has a number of occasions to cure the same, but
plaintiff never bothered to cure these technical deficiencies in his
case.
14. In rebuttal arguments, Ld. Counsel for the plaintiff has
stressed that once the plaintiff has placed on record all the relevant
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M/s Oravel Stays Pvt. Ltd.
documents claiming his recovery and the same have not been
denied by the defendant then the case of the plaintiff stands
proved and be decreed accordingly.
15. Both parties presented compelling arguments supported by
evidence and countered each other's claims effectively. I now
propose to deal with the issues in the background of the record.
Issue-wise findings
Issue No. 1. Whether the present suit as instituted by the plaintiff
is barred by limitation? OPD
16. The onus to prove this issue was upon the defendant.
However, it is also the judicial duty of the Court to adjudicate
upon this issue on its own. It is the case of the plaintiff that the
cause of action for the first time arose in favour of the plaintiff
and against the defendant on 28.07.2015, 20.08.2015 and
31.08.2015 on which the LOIs were executed between the
plaintiff and the defendant. It is argued that the cause of action
further arose in favour of the plaintiff and against the defendant
on 01.10.2015 and 01.11.2015 being the date of invoices and
further on 16.10.2015 and 16.11.2015 being the date of expiry of
respective credit periods beyond which the defendant was liable
to make the payment of said invoices. It is further the case of the
plaintiff that cause of action has arisen on 27.10.2015 when the
defendant unilaterally terminated the LOIs executed between the
parties.
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M/s Oravel Stays Pvt. Ltd.
17. It is an admitted fact that plaintiff has not placed on record
any invoice showing that the cause of action lastly accrued to
him on 16.11.2015. Plaintiff has placed on record copy of ledger
account (Ex. PW1/8) in which the last payment made to the
plaintiff by the defendant is dated 15.09.2015. This is also a fact
that on 27.10.2015, the LOIs Ex. PW1/10 were terminated by the
defendant giving rise to the cause of action in favour of the
plaintiff. Accordingly, even if this date of 27.10.2015 be taken
into consideration, still the case of the plaintiff is barred by
limitation as admittedly the suit has been filed on behalf of
plaintiff on 15.11.2018 but the limitation expired on 24.09.2018
(i.e. 3 years from the date 27.10.2015). Hence, the suit of the
plaintiff is barred by limitation as admittedly the suit has been
filed by the plaintiff on 15.11.2018. Accordingly, this issue is
decided in favour of defendant and against the plaintiff.
Issue No. 3. Whether plaintiff is entitled to recover an amount of
Rs. 1,80,59,724/- (Rupees One Crore Fifty Nine Lakhs Seven
Hundred Twenty Four only)? OPP
18. The suit of the plaintiff is based on ledger account Ex.
PW1/8. Admittedly, plaintiff has not placed on record any
invoices qua the services rendered by him. Though, the defendant
has placed on record certain documents but these documents
have not been proved in any manner by the defendant as well.
Also, the plaintiff has not asked any question in the cross-
examination of the defence witness regarding these invoices. Just
for the shake of taking these papers, a bare perusal would depict
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that nothing has been mentioned in these invoices as to which
service has been provided by the plaintiff to the defendant as it is
simply written:
No. Activity Qty. Rate Amount
1. Market Research Program 5.32 39,600.00 2,10,672
FTE's
Tax may be deducted at Source @ 2 % SUBTOTAL 210,672.00
under section 194 C of the Income Tax Act, 1961 TAX 29,464.08
Service Tax No. AANCA7111J001 TOTAL 240,166.08
19. Same is the situation of the document at page 69 though
not at all proved by any of the parties. A number of mails
admittedly has been written by the defendant to the plaintiff
regarding deficiency in services. PW-1 has admitted in his cross-
examination that he has not replied to the e-mails (Ex. PW1/D-1)
(Page 25 to 39 of defendant's document) written by the defendant
as the same has nothing to do with the performance. Regarding
the deficiencies told to the plaintiff by the defendant, one bald
answer is coming forth that it has nothing to do with the
performance, with the internet connection or with the training of
the staff etc. etc.
20. Plaintiff has admitted the e-mail Ex. PW1/D-1 and he
stated in his cross-examination that he has responded to these e-
mails and his response is not on record. I am unable to
understand the answer given by PW-1 regarding the fact that
whose duty he was anticipating in his mind to place on record
these documents. In his cross-examination, he has submitted that
he has placed on record 6 invoices but this is factually incorrect
as the copies of invoices have been filed only by the defendant
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M/s Oravel Stays Pvt. Ltd.
and even they have not been proved in any manner. The evasive
answers given by plaintiff in his cross-examination does not
aspire the confidence of the Court. In his cross-examination, if he
has submitted a fact, then he has not placed that document or he
has given different answers to a single question i.e. why he has
not replied to the e-mails of the defendant which the defendant
has written to the plaintiff regarding deficiencies in services.
Defendant has also examined his witness DW-1 Sh. Yogesh
Vishnoi. I have gone through the cross-examination of DW-1 by
Ld. Counsel for plaintiff and substantial part of the cross-
examination hinges around the fact that defendant has filed a
criminal complaint against the plaintiff in the Court at Gurugram
which was dismissed by the Court. It is a cardinal principle of
law that the judgment rendered by a criminal court has no
bearing on the civil disputes between the parties.
21. It has also been admitted by plaintiff that he had already
worked with Mr. Jatin and Mr. Manish Pande (the concerned
raised by the defendant regarding procurement of LOIs through
Mr. Jatin). Plaintiff has filed the suit for an amount of Rs.
1,80,59,724/-. This is an admitted fact that the basis of this
amount is invoices which has not been placed on record by the
plaintiff. Admittedly plaintiff has placed on record following
documents only:
1. Copy of certificate of Incorporation is
Ex.PW1/1.
2. Copy of email dated 22.08.2015 is Ex.PW1/4.
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M/s Oravel Stays Pvt. Ltd.
3. Copies of Letter of Intent are Ex.PW1/5 to
Ex.PW1/7.
4. Copy of ledger of audit is Ex.PW1/8 (OSR).
5. Termination letters are Ex.PW1/10 (a) and
Ex.PW1/10 (b).
6. Legal notice dated 27.11.2015 is Ex.PW1/11.
7. Reply of defendant to notice dated 27.11.2015 is
Ex.PW1/13.
22. It is the version and defence of the defendant that no
satisfactory service has been provided by the plaintiff to the
defendant and even defendant has not bothered to answer the e-
mails written by the defendant to the plaintiff qua deficiencies in
services. It is also the case of the defendant that the invoices sent
to the defendant were totally false and fabricated and there is no
description of goods/ services in the invoices. Ld. Counsel for the
plaintiff has argued that in case of specific denial on the part of
defendant, it is an admission and suit of the plaintiff be decreed.
Plaintiff has placed on record copy of ledger account (Ex.
PW1/8). Admittedly, no invoice has been placed on record.
23. Furthermore, it is submitted that invoices in question were
not bearing any receiving or acknowledgement from the
defendant. There was no separate delivery receipt with regard to
any material/ service having been delivered at the premises of the
defendant. Based upon the above and also on the strength of the
deposition of defendant's witnesses, as noted above, Ld. Counsel
for defendant sought much of the emphasis to the contention that
the disputed invoices allegedly raised by plaintiff are fake and
forged documents. It is submitted that in order to claim money
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from the defendant, plaintiff has forged the invoices and for that
reason, the same has not been placed on record by the plaintiff in
order to avoid the criminal proceedings u/s 340 Cr.P.C.
24. I could lay my hand upon following authorities:
(i) Ishwar Das Jain (Dead) through LRs Vs. Sohan Lal (Dead)
by LRs (2000) 1 SCC 434:
" 22. Now under section 34 of the Evidence Act, entries in "
account books" regularly kept in the course of business are
admissible though they by themselves cannot create any
liability. Section 34 reads as follows:
" Section 34: Entries in books of account when relevant -
Entries in books of account, regularly kept in the course of
business, are relevant whenever they refer to a matter into
which the court has to inquire, but such statement shall not
alone be sufficient evidence to charge any person with liability".
(ii) Harish Mansukhani Vs. Ashok Jain 2009 (109) DRJ (DB):
"mere raising of a bill and reflecting the same in a statement of
account is not good evidence without establishing delivery of
the goods under the bills. We may hasten to add that in the
instant case, there is no evidence to even establish that the bills
were raised upon the defendant, in that, were ever delivered to
the defendant".
25. On the basis of these judgment, it can be noted that
sanctity is attached in the law of evidence to books of account if
the books are indeed "account books i.e. in original and if they
show, on their face, that they are kept in the "regular course of
business." Such sanctity cannot attach to private extracts of
alleged account books where the original accounts are not filed in
the Court. This is because, from the extracts, it cannot be
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discovered whether the accounts are kept in the regular course of
business or if there are any interpolations or whether the
interpolations are in a different ink or whether the accounts are in
the form of a book with continuous page numbering. Hence, if
the original books have not been produced, it is not possible to
know whether the entries relating to payment of invoices are
entries made in the regular course of business. This also applies
to the ledger statement filed on behalf of plaintiff.
26. In Subrata Roy Sahara Vs. Union of India & Ors. (2014)
8 SCC 470, it has been held :
"sole reliance on general ledger entries cannot be
basis for accepting the transactions unless there is an
authentic supporting material".
27. In Chandradhar Goswami and Ors. Vs. The Gauhati
Bank Ltd. AIR 1967 SC 1058, it has been held:
"6. The main question urged before us is that there is
no evidence besides the certified copy of the account to
prove that a sum of Rs. 10,000/- was advanced to the
appellants and therefore in view of section 34 of the
Evidence Act, the appellants cannot be saddled with
liability for that amount. Section 34 is in these terms: '
Entries in books of account, regularly kept in the
course of business, are relevant whenever they refer to
a matter into which the court has to inquire, but such
statements shall not alone be sufficient evidence to
charge any person with liability'
7. It is clear from a bare perusal of the section that no
person can be charged with liability merely on the
basis of entries in books of account, even where such
books of account are kept in the regular course of
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business. There has to be further evidence to prove
payment of the money which may appear in the books
of account in order that a person may be charged with
liability thereunder, except where the person to be
charged accepts the correctness of the books of
account and does not challenge them. In the present
case, however, the defendant did not accept the
correctness of the books of account. We have already
indicated that they went to the length of saying that the
accounts were not correctly kept, and were fraudulent.
This being their pleading, the trial court rightly framed
the third issue relating to the total amount due from the
appellants to the bank."
28. In Chandrakantaben Vs. Narendra Jayantilal Modi
(1989) 2 SCC 630, it has been held:
"13....The other relevant documents which are admittedly in
possession of defendant have not been produced, including the
account books of other years during the crucial period, the
income tax returns and assessment orders for the period 1946 to
1952 and the counterfoil rent receipts...... No reason has been
suggested at all on his behalf as to why he did not produce the
other important documents in his possession which would have
supported the account books and the joint case of the parties
resisting the appellant's claim. In view of all these
circumstances, we have no hesitation in rejecting the account
books as not reliable....."
29. I could also lay my hand on a judgment of Hon'ble Gujarat
High Court in Jay Ambe Industries Proprietor Shri
Dineshkumar Bajranglal Somani Vs. Garnet Speciality Paper
Ltd. 2002 SCC Online Guj 2258:
"25. The proposition laid down in authorities about
the admissibility of ledger without the corroborative
evidence being led in support of the entries in the
ledger cannot be disputed. It is well settled that a
ledger, though an account book, has no evidentiary
value unless the entries made therein are proved by
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independent evidence which, in other words, would
mean that there must be corroboration of entries which
corroboration can be supplied by proving the
transaction or by proving the entries in the Daily Cash
book of Roznama. Without corroboration, entries in the
ledger cannot be brought within the purview of section
34 of the Evidence Act. In the instant case, it is,
therefore, to be seen, whether apart from the entries in
the ledger, there was corroborative evidence in support
of the entries in the ledger."
30. After scrutinizing the law on the point, it is to be held:
i) that ledger by itself may not be the proof of transaction and no
liability can be fastened on the basis of an entry in the ledger
alone unless it is corroborated by some other evidence;
ii) ledger can be taken into consideration and would become
relevant u/s 34 of the Evidence Act only when there is
corroborative evidence on record in support of the entries made
therein or in support of the transaction between the parties ;
iii) that what form of evidence is to be led to corroborate the
entries in the ledger would largely depend on the facts of each
case. If the entries in the ledger are not denied by the defendant,
it may not require any corroboration. Therefore, the nature of
proof would vary from case to case.
31. In Kusum Kund Durga Vs. Kalra Papers Pvt. Ltd.
(2013) 198 DLT (CN) 5, wherein it was observed that :
"Surely, a person who sells the goods, such as the
respondent/plaintiff, will definitely in addition to the
alleged bills showing supply, would have its own dispatch registers, books of account and various other documents to show actual dispatch of goods. This CS (COMM) 40/2018 M/s Assured BPO Services OPC Private Limited Vs. Page 22 of 24 M/s Oravel Stays Pvt. Ltd.
becomes all the more relevant as the respondent is a company under the Companies Act, 1956 and its accounts would in fact have been audited. The respondent/plaintiff however chose not to file any copies of any books of account, goods registers or copies of its dispatch register etc. to show the dispatch/delivery of goods under the disputed bills to the appellant/defendant".
32. Ld. Counsel for defendant submitted that onus to prove issue no. 1 & 3 was upon the plaintiff. Order XVIII Rule 1 of CPC recognizes the general rule that the plaintiff in a suit must prove his case. The Latin maxim says: Ei incumbit probatio qui dicit, non qui negat - the burden of proof is on who affirms, not on who denies. This is in consonance with sections 101 to 114 of Indian Evidence Act, 1872.
33. Section 101 of Evidence Act states that , "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Hon'ble Apex Court as well as our own Hon'ble Delhi High Court in several judgments have also held that no relief can be granted to a party where it fails to prove its case.
Conclusion
34. In conclusion, after meticulously examining the evidence presented by the plaintiff and considering the legal principles established in relevant precedents, the court finds the plaintiff's CS (COMM) 40/2018 M/s Assured BPO Services OPC Private Limited Vs. Page 23 of 24 M/s Oravel Stays Pvt. Ltd.
claim regarding the outstanding debt amount unsubstantiated. The non-production of invoices receipts coupled with the absence of any corroborating evidence create significant doubts about the validity of transactions. These deficiencies mirror concerns raised in cases like Kusum Kund Durga v Kalra Papers (P.) Ltd. and Harish Mansukhani v. Ashok Jain (Supra). Due to the plaintiff's failure to meet the burden of proof and provide reliable evidence, the court dismisses the suit of the plaintiff in its entirety. Consequently, the defendant is not obligated to pay any outstanding balance to the plaintiff. File be consigned to record room after due compliance.
Announced & dictated in the open Court on this 30th day of April, 2024 (NEELAM SINGH) District Judge (Commercial Court-02) South-East, Saket Courts, ND CS (COMM) 40/2018 M/s Assured BPO Services OPC Private Limited Vs. Page 24 of 24 M/s Oravel Stays Pvt. Ltd.