Delhi District Court
Achala Jain vs Sanjay Ahuja Prop Of M/S A.B Textiles on 3 June, 2025
IN THE COURT OF PAWAN KUMAR MATTO
DISTRICT JUDGE COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CS (Comm.) No. 499/23
CNR No. DLSH-01-006115-2023
In the matter of :-
Achala Jain
Sole proprietor of M/s Shri Navkar Fashion
Through it's SPA Holder
Nitish Jain
Office at:- IX-3342, Gali no. 8,
Dharampura, Gandhi Nagar, East Delhi
Delhi 110031
Mobile 9625798859
.... PLAINTIFF
VERSUS
Sanjay Ahuja
PROPRIETOR OF M/S. A. B. TEXTILES
Office at IX/7028, Ashok Gali,
Gandhi Nagar, East Delhi
Delhi -110031
Mobile 9560771634
....DEFENDANT
Date of institution of the case : 04.10.2023
Date of final arguments : 26.05.2025
Date of judgment : 03.06.2025
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 1 of 34
JUDGMENT
1. Briefly stating that the plaintiff has filed the present suit for recovery of Rs. 9,13,834/- (Rupees Nine Lakh Thirteen Thousand Eight Hundred And Thirty Four Only) along with pendente lite and future interest, stating therein that the plaintiff had supplied the clothes/suiting fabrics/goods to the defendant and the defendant is liable to pay Rs. 913834/-. It is also averred that the plaintiff is the proprietorship firm, having it's office at: IX- 3342, Gali No. 8, Dharampura, Gandhi Nagar, East Delhi, Delhi 110031. The present suit has been filed by the Special Power of Attorney holder of the plaintiff firm, who has been authorized by it's sole proprietor Smt. Achala Jain, to sign, file, verify and affirm the pleadings and also to institute the present suit on behalf of the plaintiff firm.
2. It is further averred that the plaintiff firm is engaged in the wholesale business of clothes/suiting fabrics/goods under the name and style "M/S. Shri Navkar Fashion". The GST number of the plaintiff firm is 07AEVPJO788D1Z6.
3. It is further averred that the defendant Sh. Sanjay Ahuja is the Proprietor of "M/s. A B Textiles", who had approached to the plaintiff firm in the year 2016-2017 and he had shown his interest of purchasing the clothes/suiting fabrics/goods from the plaintiff firm, on the credit basis and assured to the plaintiff firm that all the bills to be raised against the invoices will be cleared in time. The plaintiff firm after the above said assurances, started dealing with the CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 2 of 34 defendant. The defendant had purchased the clothes/suiting fabrics/goods, from time to time, in cash and on credit basis. It is also averred that it is the general practice in the market to supply the clothes/suiting fabrics/goods on the credit basis and to adjust the paid amount in the total outstanding bills. It is further averred that initially in order to gain the trust of the plaintiff firm, the defendant had cleared the invoices on regular basis, but, after some time, the defendant started making defaults in clearing the invoices.
4. It is further averred that the plaintiff firm had delivered number of clothes/suiting fabrics/goods to the defendant against the invoices, on the basis of his requirement/ demand raised in the year 2017 and 2018. However, despite of various attempts made by the plaintiff firm, the defendant has failed to clear the dues till date.
5. It is further averred that the plaintiff firm had requested to the defendant several times through numerous calls, and contacted physically for clearing the outstanding dues, but, the defendant has failed to make payment, on one pretext or the other. It is further averred that the defendant kept making the part payments of the invoices and the same were adjusted in the total outstanding amount, but, later on the defendant stopped making payment to the plaintiff firm.
6. It is further averred that the plaintiff firm, looking at such indifferent attitude of the defendant, of not repaying the outstanding amount, was compelled to issue a legal notice to the defendant.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 3 of 34 Accordingly, the legal notice dated 29.05.2023 was dispatched to the defendant on dated 29.05.2023. The copy of the legal notice dated 29.05.2023 along with it's postal receipt and tracking report are filed with the plaint.
7. It is further averred the the defendant with malafide intention did not receive the legal notice. It is also averred that the legal notice was sent to the defendant, on his last known address and presently the defendant is operating the said business from the same address. It is also averred that the legal notice was also sent to the defendant on his WhatsApp number i.e., 9560771634 and despite of receiving the same, the defendant did not pay the outstanding amount.
8. It is further stated that the plaintiff firm looking at the indifferent attitude of the defendant, of not repaying the outstanding amount was compelled to initiate pre institution mediation against the defendant. However, the defendant intentionally, deliberately and knowingly did not appear before the mediation cell, DSLSA, Shahdara District, Karkardooma Court and accordingly on dated 25.08.2023, the DSLSA had issued the non starter report to the plaintiff. Hence the present suit.
9. It is further averred that as per the suo motu cognizance taken by the Hon'ble Supreme Court, during Covid-19, the present suit has been filed within a period of limitation, as the defendant had lastly paid an amount of Rs. 50,000 on dated 25.06.2019.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 4 of 34
10. It is further averred that the cause of action for filing the present suit arose, when, the defendant had approached to the plaintiff firm and he had shown his interest of purchasing the clothes/suiting fabrics/goods from the plaintiff firm. It further arose, when, the invoices were raised by the plaintiff firm against the defendant's demand. It further arose, when, the counsel of the plaintiff firm issued legal notice dated 29.05.2023 to clear the outstanding amount of Rs. 9,13,834/-. It further arose, when, the defendant lastly paid an amount of Rs. 50,000/- on 25.06.2019. It further arose, when, despite of service of notice to the defendant, the defendant failed to clear the outstanding dues till date and therefore the cause of action still continues.
11. It is further averred that the defendant carries on the business from IX/7028, Ashok Gali, Gandhi Nagar, East Delhi, Delhi 110031, which falls under the Shahdara district and hence this Court has the territorial jurisdiction to try and adjudicate upon the present suit.
12. It is further averred that as per the Statement of Account of the plaintiff firm dated 22.09.2023, the defendant is liable to pay the total outstanding amount of Rs. 9,13,834/- (Rupees Nine Lakh Thirteen Thousand Eight Hundred and Thirty four) alongwith interest at the rate of 18% per annum from the date of default till realization.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 5 of 34
13. That the Plaintiff has prayed for passing decree for Rs. 9,13834/- along with pendent-lite and future interest @ 18 % per annum with cost of the suit.
14. The summons of the suit were issued to the defendant and on completion of service of summons, the defendant has appeared through his counsel and filed written statement, statement of truth and affidavit of admission/denial. The defendant has contested the suit of the plaintiff on the ground inter alia that the present suit filed in present form is not maintainable, hence, the same is liable to be dismissed and the present suit filed by the plaintiff is based on wrong facts and the plaintiff has concealed the real facts from the Court. The defendant has further stated that the present suit is very far from the true facts and based on totally wrong and fabricated facts, hence, the same is liable to be dismissed. The defendant has also stated that the plaintiff had not approached to this Court with clean hands and she has suppressed the true and correct facts from this Court, hence the plaintiff is not entitled for any discretionary relief from this Court. The defendant has also stated that no cause of action ever arose in favour of the plaintiff and against the defendant to file the present suit, at any point of time, as such, the suit is liable to be rejected under order VII Rule 11 of CPC.
15. The defendant has made preliminary submissions in the written statement stating therein that the plaintiff is running the firm in the name of M/S SHREE NAVKAR FASHION since the year 2013 and since, 2013, the defendant was purchasing the clothes/fabrics from CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 6 of 34 the plaintiff on the credit basis and making the part payments in cash, as well as, cheque from time to time.
16 The defendant has further stated that after 2017, the plaintiff had opened three more firms in the following names:-
(a) M/S.AADI TEXTILE
(b) M/S VEER FEBTEX
(c) NAVKAR FEBTEX
17. The defendant has also stated that the said firms are run by the plaintiff from the same address of the firm i.e. M/S SHREE NAVKAR FASHION and with same mobile number of M/S SHREE NAVKAR FASHION.
18. The defendant has further stated that as per the requirement, defendant placed many orders to the plaintiff, from time to time and plaintiff had supplied the clothes/fabric, as per her convenience in the name of different firm namely M/S AADI TEXTILE, M/S VEER FEBTEX, NAVKAR FEBTEX and the defendant has been maintaining regular books of accounts in the computer, as well as, in the books and has been making the entries regarding all the transactions with the plaintiff. There has been mutual, open and current account.
19. The defendant has further stated that on dated 01.04.2017, the opening balance of plaintiff was 19,08,921/- and thereafter from 01.04.17 to 18.02.18, the defendant had purchased material i.e. clothes/fabric of an amount of Rs. 91,39,374/- from the all the CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 7 of 34 abovesaid firms of the plaintiff, on credit basis and made the payments to the plaintiff from time to time, after adjusting the part payments, the account remained in excess towards the plaintiff of Rs. 31,774/-,against which, defendant reserves his right to recover the same, as the defendant made payment of Rs. 91,71,148/-.
20. The defendant has further stated that the defendant had paid the entire amount to the plaintiff, as the representative of firms of plaintiff i.e. husband of Plaintiff, used to collect the part payments from time to time in cash from the shop of the defendant and defendant made entries of the same in the ledger maintained by the defendant in presence of Gogi Jain S/o Sh. Ram Gopal Jain R/o 126, Gali No-4, Nehru Gali, Sant Nagar, Burari, Delhi and the plaintiff has filed the present suit only to harras the defendant.
21. Replying to the plaint on merit, the defendant has denied that the defendant is liable to pay Rs. 9,13,834/- in view of alleged supply of clothes/suiting/fabrics/goods to the defendant. He has also denied that he has failed to pay the said amount and stated that defendant has paid the entire amount to the plaintiff and the plaintiff has filed the present suit only to harass the defendant.
22. The defendant has also denied that the present suit has been filed by the SPA holder of the plaintiff, who has been authorized by Sole proprietor Smt. Achala Jain to sign, verify or affirm the pleadings or to institute the present suit on behalf of the plaintiff. The defendant has also denied that the firm of the plaintiff is engaged in the CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 8 of 34 wholesale business of the clothes in the name of Style of M/s Navkar Fashion or that it's GST number is 07AEVPJO788D1Z6.
23. The defendant has not denied that he is the proprietor of M/s AB textile and he had approached to the firm of the plaintiff in the year, 2016-2017 and he had shown his interest for purchasing the clothes/suiting/fabrics/goods from the plaintiff on credit basis.
24 The defendant has denied that in order gain the trust of the firm of the plaintiff, initially, he had cleared the invoices on regular basis or that after sometime, he started making default in clearing the invoices, as alleged. The defendant has also stated that he had paid entire amount to the plaintiff and he had never committed any default in making payment to the plaintiff.
25 The defendant has also denied that the firm of plaintiff had delivered number of clothes/suiting/fabrics/goods to the defendant on the basis of his requirement/demand raised in the year, 2017-2018.
26 The defendant has also denied that he has failed to clear the dues till date, as alleged and stated that defendant was dealing with the plaintiff since the year, 2013 and he was making payment to the plaintiff.
27 The defendant has not denied that the plaintiff had delivered the clothes/suiting/fabrics/goods to the defendant against the invoices.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 9 of 34 28 The defendant has denied that the plaintiff had requested to the defendant several times for clearing the outstanding payment or that he had denied on one pretext or the other or that he had ever stopped making payment.
29 The defendant has denied that the plaintiff has issued the legal notice to him. He has also denied that with malafide intention, he did not receive the legal notice or that he did not make the payment of the outstanding amount despite of receiving of the legal notice on whatsapp. The defendant has also denied that the plaintiff has approached to the DLSA Shahdara. The defendant has also denied that the suit of the plaintiff is within the period of limitation, as the defendant has made last payment of an amount of Rs. 50,000/- on 25.06.2019.
30 The defendant has also denied that the plaintiff has any cause of action to file the present suit against the defendant and after denying the other averments made in the plaint, he has also denied that he is liable to pay Rs. 9,13,834/- and prayed for dismissal of the suit.
31. The plaintiff had filed replication, wherein, he has denied the averments made in the written statement and reiterated the contents of the plaint and on the basis of pleadings of parties, this Court vide it's order dated 03.07.2024 had framed the following issues:-
(i) Whether the plaintiff is entitled to recover an amount of Rs.
9,13,834 from the defendant? (OPP) CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 10 of 34
(ii) Whether the plaintiff is also entitled to recover any interest on the suit amount, if so, at what rate? (OPP)
(iii) Whether the defendant had made any part payment to the plaintiff ?(OPD)
(iv) Relief?
32. Thereafter the matter was fixed for evidence of the plaintiff. In order to prove this case of the plaintiff, Sh. Nitish Jain has examined himself, as PW1 vide his affidavit Ex. PW-1/A and in one way or the other, he has reiterated the contents of the plaint therein. He has relied upon the documents Ex.PW1/1 to PW1/8. He was cross examined by the Ld. Counsel for the defendant.
33. Thereafter, the Sh. Nitish Jain (SPA) of plaintiff had given the statement for closing the evidence of the plaintiff and evidence of the plaintiff was closed. Then, the matter was fixed for evidence of the defendant.
34. The defendant was given an opportunity to lead his evidence. But, defendant did not examine himself or any other witness, his counsel had given the statement for closing the evidence of the defendant. Accordingly, the evidence of the defendant was closed.
35. I have heard the counsels for the parties.
36. Sh. Ram Soni, the plaintiff has submitted that transactions between the parties were held way back in the year, 2017-2018 vide CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 11 of 34 invoices Ex. PW-1/3(colly). He has further submitted that the plaintiff had supplied the goods to the defendant vide these invoices PW-1/3 (colly) and the defendant has failed to make the payment of the said invoices, which comes to Rs. 9,13,834/-. He has further submitted that prior to the filing of the present suit, a legal notice Ex. PW-1/4 was also sent. But, the defendant did not reply to the same. He has further submitted that the plaintiff has also placed on record the postal receipt and tracking report regarding the service of the legal notice to the defendant. He has also submitted that Special Power of Attorney dated 27.07.2023 was executed by the plaintiff namely Ms. Achala Jain in favour of PW-1, photocopy of which is also placed on record. He has further submitted that copy of legal notice Ex. PW-1/4 is also placed on record. Non starter report Ex. PW-1/6 issued by the DLSA, Shahdara is also placed on record. He has further submitted that the defendant has filed an application under Order 7 Rule 11 of CPC claiming therein that the suit of the plaintiff is hopelessly time barred, but, the said application of the defendant was dismissed by the predecessor of this court vide order dated 05.12.2023 and further submitted that the plaintiff has placed on record 10 invoices and the defendant has not denied the said invoices in the written statement and in the affidavit of admission/denial. He has also submitted that defendant has not specifically denied averments made in the plaint and submitted that the other documents relied upon by the plaintiff are denied, but no reason is mentioned therein, he has also submitted that in view of the non specific denial of averments of the defendant in the written statement, so, the suit of the plaintiff is liable to be decreed. He has further submitted that the defendant has claimed that he has CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 12 of 34 made entire payment, but defendant did not lead any evidence. He has also submitted that in view of the non specific denial of the averments of the plaint, the suit of the plaintiff may be decreed along with interest and cost.
37. On the other hand, Sh. Navjot Kwatra, Ld. Counsel for the defendant has submitted that the suit of the plaintiff has been filed by an unauthorized person. He has further submitted that PW-1 has relied upon the legal notice dated 29.05.2023 Ex. PW-1/4 and submitted that the perusal of the legal notice reveals that it is sent by an advocate on behalf of Nitish Jain claiming therein that Nitish Jain to be General Power of Attorney Holder of plaintiff, but, on dated 29.05.2023 that is the date, on which the legal notice was sent to the defendant, there was no General Power of Attorney in favour of the Sh. Nitish Jain (PW-1) executed by Ms. Achala Jain and this fact was admitted by the PW-1, during his cross examination. He has further submitted that PW-1 has claimed to be General Power of Attorney holder in the legal notice, but, there was no General or Special Power of Attorney executed by Ms. Achala Jain in favour of the Nitish Jain on dated 29.05.2023 (PW-1), so, the said legal notice was sent by an unauthorized person. He has further submitted that PW-1, during his cross examination has deposed that he has no idea whether plaintiff Achala Jain had executed any power of Attorney in his favour or not, at the time of sending of the legal notice to the defendant. He has also submitted that even on dated 24.04.2024, during his cross examination PW-1 had stated that he has not brought any document to show that he has any authority from Ms. CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 13 of 34 Achala Jain and during his cross examination, he has admitted that legal notice Ex. PW-1/ 4 was sent to the defendant, at his instance and not at the instance of Achala Jain i.e. Plaintiff and submitted that the plaintiff has relied upon the ledger Ex. PW-1/7. He has also submitted that the plaintiff has claimed that the defendant did not make the payment of the amount, as mentioned in the invoices. But, at the time of the arguments, Ld. Counsel for the plaintiff submitted that defendant made only part payment of the invoices. Whereas copy of the ledger Ex. PW-1/7 relied upon by the plaintiff reveals that number of payments were made by the defendant, which are reflected in her ledger, but the plaintiff did not file the complete ledger, as on dated 01.04.2017, the opening balance in the said ledger is shown as Rs. 3310211/- and submitted that in view of non filing of the complete ledger, the same cannot be relied upon, because the defendant had made number of payments and excessive payment to the plaintiff and in view of the same, the plaintiff has not filed complete ledger, so, the same cannot be relied upon.
38. Ld. Counsel for the defendant has further submitted that the plaintiff has failed to show entire transactions and all payments in the plaint and in the testimony of PW-1 and PW-1 during his cross examination has admitted that he has filed the present suit on the basis of the bills mentioned in the legal notice Ex. PW-1/4 and submitted that in the legal notice Ex. PW-1/4, 9 bills are mentioned, whereas at the time of filing of the suit, 10 bills are relied upon by the plaintiff. He has further submitted that plaintiff has claimed that defendant did not make any payment, but in para 13 of the plaint, CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 14 of 34 the plaintiff has stated that Rs. 50,000/- were lastly paid by the defendant on 25.06.2019. He has further submitted that since the PW-1, during his cross examination had admitted that he has not placed on record any document to show that he was authorized to send legal notice, so, PW-1 had sent the legal notice unauthorizedly He has further submitted that this PW-1 has stated that he maintains the ledger, but, he has admitted it to be correct that he has not placed on record any document, vide which, Ms. Achala Jain has authorized him to maintain the ledger Ex. PW-1/7 and further submitted that since the burden of proving of issue no. 1 and 2 was on the plaintiff, but, the plaintiff did not appear in the court and submitted that PW-1 is an unauthorized person, so, the testimony of PW-1 cannot be relied upon and further submitted that PW-1 has relied upon one photocopy of Special Power of Attorney, which is alleged to have been executed by Ms. Achala Jain in his favour on dated 27.07.2023. But the said document was denied by the defendant, so, it was incumbent on the part of the plaintiff to prove the same and submitted that said copy of power of attorney Ex. PW-1/1 is not proved, as per mode of proving, so, it cannot be relied upon and since PW-1 is not aware of all the facts, so, the testimony of the PW-1 cannot be relied upon and in view of of non examination of plaintiff in this case, it may be inferred that her case is based on the falsehood. so, the suit of the plaintiff is liable to be dismissed.
39. In rebuttal thereof, Sh. Ram Soni Ld. Counsel for the plaintiff has submitted that the defendant in his written statement has stated that husband of the plaintiff used to come as a representative of the CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 15 of 34 plaintiff to take money and as per provision of Section 196, 197 and 199 of Indian Contract Act. The act of PW-1 is ratified.
40. I have given thoughtful consideration to the submissions made by the Ld. Counsels for the parties and perused the record.
41. The perusal of record reveals that the plaintiff has claimed that the defendant had approached to the plaintiff in the year, 2016-2017 and the defendant had purchased clothes/suit/fabric/goods, from the plaintiff in cash and on credit basis and the plaintiff had delivered the same to the defendant and the defendant has failed to pay Rs. 913834/- so, the plaintiff had sought to recover Rs. 9,13,834/- (Rupees Nine Lakh Thirteen Thousand Eight Hundred And Thirty Four Only)/- along with interest @ 18% per annum and pendente lite and future interest till the realization of the amount and cost, so, the burden of proving issues no. 1 and 2 was on the plaintiff. Since the defendant has claimed that he has made entire payment to the plaintiff and also made part payments to the plaintiff, so, the burden of proving issue no 3 was on the defendant. In order to avoid repeatitation , all the issues have been taken together for discussion.
42. In order to prove the case of the plaintiff, her Special Attorney Sh. Nitish Jain, has examined himself as PW- 1, vide his affidavit Ex.PW1/A and in one way or the other, he has reiterated the contents of the plaint therein. He has relied upon the following documents:-
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 16 of 34
(i) Photocopy of Special Power of Attorney dated 27.07.2023 executed by the plaintiff Achala Jain in his favour is Ex.PW1/1 (OSR).
(ii) Photocopy of GST certificate issued in the name of Shree Navkar Fashion Ex. PW1/2.
(iii) Original invoice number 082/17/18 dated 23.08.2017 of an amount of Rs. 2,23,903/-, invoice no. 0116/17/18 dated 10.09.2017 of an amount of Rs. 1,19,1271, invoice no.
0185/17/18 dated 07.10.2017 of an amount of Rs. 1,08,707/-, invoice no. 0195/17/18 dated 14.10.2017 of an amount of Rs. 63,735/-, invoice no. 0198/17/18 dated 17.10.2017 of an amount of Rs. 26.513/-, invoice no. 0199/17/18 dated 25.10.2017 of an amount of Rs. 1,09,867/-, invoice no. 0207/17/18 dated 31.10.2017 of an amount of Rs. 2,02,296/-, Invoice no. 0219/17/18 dated 04.11.2017 of an amount of Rs. 56,981/-, invoice no. 0301/17/18 dated 16.01.2018 of an amount of Rs. 1,56,708/- and invoice no. 0369/17/18 dated 18.02.2018 of an amount of Rs. 1,00,970/- Ex. PW1/3 (colly).
(iv) Office copy of the legal notice dated 29.05.2023 alongwith it's postal receipt and tracking report Ex. PW1/4 (colly).
(v) Copy of screenshot regarding serving the legal notice sent to
defendant through Whatsapp Ex.PW1/5.
vi) Copy of the non starter report issued by DSLSA dated
25.08.2023 Ex.PW1/6.
vii) Copy of statement of account since 01.04.2017 till
22.09.2023 Ex.PW1/7 (colly).
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 17 of 34
viii) Certificate u/s 65B of Indian evidence Act issued by this witness Ex.PW1/8.
43. PW-1 was cross-examined by the Ld. Counsel for the defendant and during his cross-examination, he has deposed that he has no idea whether plaintiff Ms. Achala Jain had executed any power of attorney in his favour or not at the time of sending legal notice dated 29.05.2023 Ex.PW1/4 to the defendant. He has further deposed that he cannot show any document on the judicial record, vide which, he was having any authority from Ms. Achala Jain prior to 29.05.2023 to act on behalf of plaintiff. It is worthwhile to mention here that even at the time of cross examination PW-1, he has also deposed that Even today, he has not brought any such document, vide which he was having authority from Ms. Achala Jain Prior to 29.05.2023 to act on her behalf against the defendant. He has denied that the plaintiff has deliberately not mentioned about the details of the payments done by the defendant to the plaintiff in the legal notice Ex.PW1/4. He has admitted it to be correct that the legal notice Ex.PW1/4 was sent to the defendant by the counsel for plaintiff at his instance and not at the instance of Ms Achala Jain i.e. the plaintiff. He has denied that the payments received during the financial year 01.04.2017 till 31.03.2018 were not taken into consideration at the time of preparation of legal notice Ex. PW1/4, as the same was not given to defendant on behalf of the plaintiff. He has admitted it to be correct that he had filed the present suit on behalf of the plaintiff, only on the basis of the invoices mentioned in the legal notice Ex. PW1/4. He does not know anything about the CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 18 of 34 firm M/s Aadi Textiles and Navkar Febtex. He is the proprietor of Veer Febtex. He has also deposed that Plaintiff has the knowledge of the present suit. He has got mentioned in the plaint and also in his affidavit Ex.PW1/A, as to how he is having knowledge of the transactions held between plaintiff and the defendant. He has admitted it to be correct that ledger Ex.PW1/7 (colly) are not audited by any Chartered Accountant. He has admitted it to be correct that there is no endorsement of any chartered accountant on the ledger Ex. PW1/7 (colly). He has maintained the ledger Ex.PW1/7 (colly). He has admitted it to be correct that he has not placed on record any document, vide which, Achala Jain would have authorized him to maintain the ledger of the plaintiff Ex. PW1/7 (colly) for the period of which the ledger are placed on the judicial record. Each page of ledger Ex.PW1/7 (colly) bear his signatures on the stamps of plaintiff firm, as proprietor. He has denied that the present suit is result of his own personal thought and process to extract wrongful gains or that the same has no concern with the plaintiff Achala Jain. He has also deposed that he has not placed on record any such document of authority nor even today he can show any document regarding such authority by Achala Jain in his favour to execute draft or sign invoices of the plaintiff on her behalf. He has admitted it to be correct that none of the invoice Ex.PW1/3 (colly) bear the signature of Ms. Achala Jain, as proprietor of Shree Navkar Fashion. He has denied that the present suit has no concern with the plaintiff or that he has filed the present suit unauthorizedly on behalf of the plaintiff. He has also denied that there was no outstanding whatsoever payable by the defendant CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 19 of 34 to the plaintiff. He has also denied that on the basis of fabricated and manipulated documents, the present suit has been filed by him against the defendant by way of misusing the name of the plaintiff and her firm. He has denied that he has deposed falsely.
44. Thereafter, the Sh. Nitish Jain (SPA) of plaintiff had given the statement for closing the evidence of the plaintiff and evidence of the plaintiff was closed. Then, the matter was fixed for evidence of the defendant.
45. The defendant was given the opportunity to lead his evidence. But, defendant did not examine himself or any other witness, his counsel had given the statement for closing the evidence of the defendant. Accordingly, evidence of the defendant was closed.
46. In the case in hand, the plaintiff has claimed she had supplied the goods to the defendant and vide invoices Ex PW-1/3 (colly) and the defendant has failed to make the payment of an amount of Rs. Rs. 9,13,834/- and she is entitled to recover the said amount along with interest and cost.
47. The plaintiff has relied upon 10 invoices Ex. PW-1/3 (colly), total amount of those 10 invoices is Rs. 11,68,607/-. The perusal of the legal notice Ex. PW-1/4 reveals that the counsel for the plaintiff had mentioned only 9 invoices therein. The total amount of those 9 invoices in para 5 of the said legal notice Ex. PW-1/4 is mentioned as Rs. 913834/-.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 20 of 34
48. The perusal of the record reveals that the plaintiff has also relied up the invoices no. 082/17/18 dated 23.08.2017 of Rs. 223903/-, which is part of Ex. PW-1/3 (colly). But, this court does not find the reference of this invoice in the legal notice Ex. Pw-1/4 (colly).
49. From the cross examination of PW-1, Nitish Jain, it is proved on the record that on dated 29.05.2023, when this legal notice Ex. PW-1/4 was sent by the Ld. Counsel for the plaintiff to the defendant, then his client Nitish Jain was not having any General Power of Attorney in his favour from the plaintiff. (Ms. Achala Jain), as in the said legal notice Ex. PW-1/4, the name of his client is mentioned as "Nitish Jain", GPA holder of Shri Navkar Fashion and Ms. Achala Jain is the proprietor of Shri Navkar Fashion.
50. Thus there are inconsistencies in the contents of legal notice Ex. PW-1/4 (colly) regarding the amounts of invoices mentioned in the legal notice Ex. PW-1/4 and invoices Ex. PW-1/3 (colly). Had the plaintiff Ms. Achala Jain appeared in the court, she could explain about the same. But, she did not choose to come in the witness box.
51. It is also worthwhile to mention here that at the time of cross examination of PW-1, he has stated that he has filed the present suit only on the basis of the invoices mentioned in the legal notice Ex. PW-1/4, Thus, the testimony of PW-1 is found to be false to this CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 21 of 34 extent also, because the perusal of the legal notice Ex. PW-1/4 reveals that there is reference of only 9 invoices therein, but the plaintiff has relied upon in this case 10 invoices Ex. PW-1/3 (colly).
52. The plaintiff has also relied upon ledger Ex. PW-1/7 (colly). The plaintiff has claimed in the plaint that she had supplied the goods to the defendant in the year, 2017-2018, and the perusal of the ledger Ex. PW-1/7 (colly) reveals that the plaintiff has filed the ledger since 01st April, 2017 and on dated 01.04.2017, the opening balance of Rs. 3310211/- is mentioned therein.
53. The Ld. Counsel for the defendant has submitted that the plaintiff has deliberately not filed the complete copy of the ledger, because of excessive amount has been received by her.
54. Since in the case in hand, the plaintiff has sought to recover an amount of Rs. 913834/- along with interest and cost of the suit. So, she was under legal obligation to prove that She is entitled to recover the said amount. The defendant has claimed in the written statement that he had purchased the goods of total amount of Rs. 9139374/- and he had paid Rs. 9171148/- and claimed that after adjusting the part payments an excessive amount of Rs. 31774/- has been received by the plaintiff, to which, he has right to recover.
55. Since the plaintiff has filed the ledger since 01.04.2017 and on dated 01.04.2017, the opening balance amount of Rs. 3310211/- is mentioned therein, so, it is clear that transactions were going on CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 22 of 34 between the parties to the present lis, even prior to 01.04.2017, then what had prevented to the plaintiff to file the complete ledger is not explained by the plaintiff. Had the plaintiff filed the complete ledger all the transactions could be cleared and the plaintiff could be the best witness to explain, but, she did not appear in the witness box. Since the plaintiff has claimed in the plaint that she has sought to recover the suit amount regarding the transactions in the year, 2017- 2018, but, she did not file the complete ledger of even year 2017. she has filed the ledger since 01.04.2017, wherein the opening balance on dated 01.04.2017 is mentioned as Rs. 3310211/-.
56. it is worthwhile to mention here that PW-1 during his cross examination has stated that he had mentioned the ledger Ex. PW-1/7 (colly). But, he has admitted it to be correct that he has not placed on record any documents, vide which, he could be authorized by Ms. Achala Jain (plaintiff) to maintain ledger Ex. Pw-1/7 (colly). Since PW-1 has failed to bring on record any documentary proof that he was authorized to maintain the ledger Ex. PW-1/7) (colly of the plaintiff, so, this ledger Ex. PW-1/7 (colly), which is prepared by the PW-1 unauthorizedly. So, the same does not inspire any confidence.
57. The defendant has claimed in the written statement that he had paid the entire amount and also claimed that he had purchased the material of an amount of Rs. 91,39,374/- and he had made the payment of Rs. 91,71,148/- and thus he had claimed that he has made the payment of excessive amount of Rs. 31774/- and also CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 23 of 34 claimed that he reserves his right to recovery the same from the plaintiff. The defendant has claimed that after 2017, the plaintiff had opened three more firms namely (a) M/S.AADI TEXTILE, (b) M/S VEER FEBTEX and (c) NAVKAR FEBTEX and the defendant has also claimed that the said firms are run by the plaintiff from the same address of the firm i.e. M/S SHREE NAVKAR FASHION. The defendant has also claimed that as per the requirement, the defendant placed many orders to the plaintiff, from time to time and plaintiff had supplied the clothes/fabric, as per her convenience in the name of different firms namely M/S AADI TEXTILE, M/S VEER FEBTEX, NAVKAR FEBTEX .
58. The perusal of the cross examination of PW-1 reveals that at the time of his cross examination PW-1, Nitish Jain has stated that he does not know anything about firms Aadi textile and M/s Navkar febtex. Since the defendant has claimed that he had made all the payments to the plaintiff and he has also claimed that the plaintiff used to send the goods to the defendant with her different names of firms, (as mentioned here-in-above), and PW-1 during his cross examination has stated that he does not know anything about M/s Aadi Textile and M/S NAVKAR FEBTEX and in view of the above discussion, it is clear that this PW-1, who has claimed to be Special Attorney of the plaintiff, vide copy of Special Power of Attorney Ex. PW-1/1 was not competent to depose on behalf of Ms. Achala Jain (plaintiff).
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 24 of 34
59. Since, the Loardship of Supreme Court of India in Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. Appeal (civil) 6790/2003, was pleased to hold that:
In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 25 of 34 have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside".
60. Thus from the law laid by the Hon'ble Apex in the judgment passed Janki Vashdeo Bhojwani (supra), it is crystal clear that the attorney cannot depose on behalf of the Principal regarding the facts, which are not personally known to the attorney and in the case in hand, Nitish Jain claimed himself to be General Power Attorney of Ms. Achala Jain in the legal notice Ex. PW-1/4 and during his cross examination Nitish Jain had stated that he has no idea, whether Ms. Achala Jain had executed any Power of Attorney in his favour or not at the time of sending of the legal notice dated 29.05.2023 Ex. PW-1/4 to the defendant. He has admitted that he cannot show any document on the judicial record, vide which, he was having authority from Ms. Achala Jain prior to 29.05.2023 to act on behalf of the plaintiff against the defendant. PW-1 during his cross examination has also admitted that legal notice Ex PW-1/4 was sent to the defendant at his (Nitish Jain) instance and not at the instance of Achala Jain (plaintiff). Sh. Nitish Jain (PW-1) has failed to prove on record that on dated 29.05.2023, when the legal notice was sent to the defendant, he was authorized by Ms. Achala Jain to CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 26 of 34 send legal notice to the defendant on behalf of Ms. Achala Jain (plaintiff).
61. It is worthwhile to mention here that Sh. Nitish Jain has failed to produce any General Power Attorney in his favour allegedly executed by Ms. Achala Jain, as mentioned in the legal notice PW- 1/4. Sh. Nitish Jain, PW-1 in his examination in chief has tendered the photocopy of one Special power attorney dated 27.07.2023 Ex. PW-1/1 was allegedly executed by Ms. Achala Jain in favour of Sh. Nitish Jain, which was attested by Notary on dated 03.01.2023. Since this special power of attorney Ex. PW-1/1 was allegedly executed by Ms. Achala Jain in favour of Sh. Nitish Jain on dated 27.07.2023, thus it is clear that Sh. Nitish Jain has erroneously shown himself to be General Power of Attorney holder in the legal notice dated 29.05.2023 Ex. PW-1/4, therefore, this court is inclined to hold that the legal notice Ex. PW-1/4 was sent to the defendant by the advocate on behalf of Sh. Nitish Jain, who was unauthorized, as on that day, there was no authority with Sh. Nitish Jain to send any notice to the defendant on behalf of Ms. Achala Jain.
62. Since from the cross examination of PW-1 Nitish Jain, it is crystal clear that he is not personally acquainted with the facts of present case. As in the Ledger Ex. PW-1/7, the opening balance on dated 01.04.2017, was Rs.3310211/- and the Plaintiff has withheld, the part of this ledger prior to 01.04.2017, as the defendant has claimed in the written statement that the plaintiff used to supply fabrics to the defendant in the names of different firms namely Ms. CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 27 of 34 Aadi textiles, M/s Veer Febtax and Navkar Febtax. But at the time fo cross examination, PW-1 has stated that he deos not know anything about firms M/s Aadi textiles and Navkar Fabtax. PW-1 has also deposed that he maintained ledger Ex. PW-1/7, but, he has admitted in his cross examination that he did not place on record any document, vide which, Ms. Achala Jain would have authorized him to maintain ledger of the plaintiff. Thus, it is clear that this PW- 1 unauthorizedly prepared ledger Ex. PW-1/7 (colly). The plaintiff has nowhere mentioned any reason in the plaint or in the copy of Special Power of Attorney of not coming to the court for her examination. So, this court is inclined to hold that (in the light of the judgment passed by the Hon'ble Supreme Court of India in case Janki Vashodev Vs. Indusind Bank, (supra)) the testimony of PW-1 cannot be relied upon.
63. The plaintiff has claimed the suit amount against the defendant, but, she chose not to appear in this court to put her case in person and since the testimony of PW-1 Nitish Jain cannot be looked into in the light of the law laid down by the Hon'ble Apex Court in Janki Vashodev Vs. Indusind Bank, (supra).
64. Since their Lordship of Supreme Court in case of Vidhyadhar vs Manikrao & Anr., AIR 1999 SC 573, was pleased to hold, as under:-
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 28 of 34 arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box". "Adverse presumption u/s 114(g) of the Evidence Act can be drawn against the defendant if does not present himself for cross-examination and refuses to enter witness box in order to refute the allegations made against him or support his pleadings in his written statement."
65. Thus the laid down by the Hon'ble Apex court in the abovesaid Judgment passed in Vidhyadhar vs Manikrao & Anr., (supra) leaves no iota of doubt, that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined, then legal presumption would arise that the case set up by him is not correct.
66. Coming to the case in hand, the plaintiff Ms. Achala Jain did not come in the witness box to state her own case and also she did not offer herself to be cross examined by the Ld. Counsel for the defendant, so, as per legal presumption contained under Section 119 (g) of Bhartiya Sakshya CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 29 of 34 Adhiniyam 2023 and judgment passed by the their lordship of Supreme Court in Vidhyadhar vs Manikrao & Anr., AIR 1999 SC 573. This court hold that the case setup by the plaintiff is not correct.
67. Since in the case in hand, the defendant has denied that the Special Power of Attorney was executed by the plaintiff in favour of Sh. Nitish Jain, so, it was also incumbent on the part of Sh. Nitish Jain ( PW-1) to prove that Ms. Achala Jain (plaintiff ) had executed the said Special Power of Attorney dated 27.07.2023. Photocopy whereof is Ex. PW-1/1. The perusal of the cross examination of PW-1 reveals that the Ld. Counsel for the defendant had given suggestion to Sh. Nitish Jain (PW-1) that he has filed the present suit unauthorizedly. But, PW-1 has denied the same suggestion. But in the considered opinion of this court, mere denial by the PW-1 is not sufficient. Since the perusal of the record reveals that Ms. Achala Jain plaintiff has not signed the plaint, legal notice and plaint has been signed by Sh. Nitish Jain. Since the defendant has also denied the execution of Special Power of Attorney Ex. PW-1/1. So, the plaintiff could come in the court to prove that she had executed the Special Power of Attorney, Photocopy whereof is Ex. PW-1/1. But, the plaintiff did not come in the court to prove that she had executed the said Power of Attorney Ex. PW-1/1 nor any reason has been given by the PW-1, as to why did the plaintiff not appear in the court to prove her case.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 30 of 34 There is nothing on the record that the plaintiff was not able to appear in the court for any reason whatsoever.
68. No doubt that the photocopy of Special Power of Attorney allegedly executed by Ms. Achala Jain in favour of Sh. Nitish Jain (PW-1) is Ex. PW-1/1. But with the mere exhibiting of photocopy of Special Power of Attorney as Ex. PW-1/1. Sh. Nitish Jain (PW-1) was not dispensed with the proof of this document in this regard, reliance is placed on the judgments passed by their lordship of Supreme Court of India in case SAIT TARAJEE KHIMCHAND AND ORS. VS YELAMARTI SATYAM ALIAS SATTEYYA which is relied upon by their lordship of High Court of Delhi in case SUDHIR ENGINEERING COMPANY VS NITCO ROADWAYS LTD.
1995 II AD(DELHI) 189.
69. The Ld. Counsel for the plaintiff has submitted that the acts of PW-1 Nitish Jain are ratified, as the defendant had stated in the written statement that Sh. Nitish Jain came to take money from the plaintiff. But, this court does not find any force in such submission, because the acts of Sh. Nitish Jain could be ratified by Ms. Achala Jain. But she did not appear in the court.
70. No doubt that the burden of proving issue no. 3 was on the defendant and the defendant did not examine himself or any other witness. Therefore, in the absence of any evidence of the defendant, this court is inclined to hold that the defendant has CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 31 of 34 failed to discharge his burden of proving issue no. 3. Therefore, issue no. 3 is decided against defendant.
71. Since the burden of proving issue no. 1 and 2 was on the plaintiff and Nitish Jain has examined himself as PW-1, vide his affidavit Ex. PW-1/A, being Special Attorney of the plaintiff and in view of above discussion and in the light of the law laid down by their Lordship of supreme Court in case Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. Appeal (civil) 6790/2003, this court court is inclined to hold that PW-1 could not depose on behalf of the plaintiff. So, his testimony is not relied upon.
72. Since the plaintiff has relied upon the invoices Ex. PW1/3 (colly) and legal notice Ex. PW-1/4 and in view of the inconsistencies in the contents of legal notice and contents of invoices Ex. PW1/3 (colly), the same do not inspire any confidence. The plaintiff has also relied upon, the ledger Ex. PW-1/7 (colly). But if the ledger Ex. PW-1/7 (colly) is looked into, then the same is not complete and if the testimony of PW- 1 is looked into, then, the said ledger is maintained by PW-1, but he failed to prove on record that he was authorized by the plaintiff to maintain her ledger Ex. PW-1/7 (colly), so, the ledger Ex. PW-1/7 (colly) also does not inspire any confidence.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 32 of 34
73. Since the plaintiff has sought to recover an amount of Rs. 91,38,34/- along with interest and cost of the suit, so, in the light of the law laid down by their lordship of Supreme Court of India in Vidhyadhar vs Manikrao & Anr., AIR 1999 SC 573 (supra), it was obligatory on the part of the plaintiff to appear in the witness box and to state her own case on oath. But, the plaintiff did not appear in the witness box to state her case and she did not offer herself to be cross examined by the Ld. Counsel for the defendant. Therefore, in the light of the law laid down by the Apex court of India and as per provision of Section 119(g) of BSA, this court is inclined to hold that the case set by plaintiff is not correct.
74. In view of the above discussion, this court does not find any force in the submissions of the Ld. Counsel for the plaintiff and this court is inclined to hold that the plaintiff has failed to proved on record that the plaintiff is entitled to recover an amount of Rs. 9,13,834/- or any interest thereon or cost from the defendant. Therefore issue no. 1 and 2 are decided in favour of the defendant and against the plaintiff.
RELIEF:-
75. Since this court has given it's findings on issue no. 1 and 2 in favour of the defendant and against plaintiff. Therefore, the suit of the plaintiff for recovery of Rs. 913834/-along with interest and cost is hereby dismissed, being devoid of merit, decree sheet be prepared accordingly. The parties are left to bear their own costs.
CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 33 of 34
76. File be consigned to Record Room.
PAWAN Digitally by PAWAN signed KUMAR MATTO KUMAR Date:
MATTO 2025.06.03 17:35:04 +0530 Announced in the open (PAWAN KUMAR MATTO) court on this 3rd day DISTRICT JUDGE of June, 2025 (COMMERCIAL COURT)-04 SHAHDARA, KKD COURTS, DELHI CS (comm) 499/23 Achala Jain Vs. Sanjay Ahuja Page no. 34 of 34