Delhi District Court
Vijay Khanna vs M/S. M.H. Textile Pvt. Ltd on 24 July, 2018
Vijay Khanna v. M.H. Textile Pvt. Ltd.
IN THE COURT OF MAYANK MITTAL : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 1549/16 (OLD NO.181/16)
In the matter of :-
Vijay Khanna
S/o Sh. Madan Lal Khanna,
Prop. M/s. Madan Lal Khanna & Co.
A-39, Ashok Vihar,
Phase - III, Delhi - 110 052. ...PLAINTIFF
VERSUS
M/s. M.H. Textile Pvt. Ltd.
Regd. Office At:
1-61/L, G.T. Karnal Road,
Azadpur, Delhi.
Also at:
14/17, Mathura Road, Mevela,
Maharajpur Mode, Sector-31,
Faridabad (Haryana) ...DEFENDANT
Date of institution : 09.08.2007
Date of judgment : 24.07.2018
SUIT FOR RECOVERY OF RS.89,785.35/-
JUDGMENT
1. Vide this judgment, I shall decide the suit for recovery of Rs.89,785.35/- filed by the plaintiff against the defendant.
2. The brief facts to decide the present suit as alleged by the plaintiff are that the plaintiff is the proprietor of M/s. Madan Lal Khanna & Co.
CS No.1549/16 (old No.181/16) Pg 1 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
dealing in woven fabrics having their office/showroom at the aforesaid place. It is alleged by the plaintiff that the defendant is a company incorporated under the Companies Act, and is dealing in the processing, dyeing and finishing of fabrics having their works at Faridabad. During the ordinary course of business the plaintiff used to send the fabrics to the defendant for processing/dyeing/finishing etc. either directly or the goods/fabric was directly sent by the mills on behalf of the plaintiff to the defendant, with whom the plaintiff has entered into the purchase contract. In the year 1996-97 the defendant was sent/entrusted the goods/fabric for processing/ dyeing/finishing as per the details given below:-
Sr. No. Challan No. Date
1. 5290 02.01.1997
2. 1254 06.04.1996
(The goods under this challan was sent directly by M/s. Kumar Syntex on behalf of the plaintiff).
3. 5284 23.09.1996
4. 5285 23.09.1996
5. 689 29.08.1995 (The goods under this challan was sent directly by M/s. Nor CS No.1549/16 (old No.181/16) Pg 2 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
Industries Pvt. Ltd. on behalf of the plaintiff).
3. As per the practice, the defendant used to return the goods/fabric to the plaintiff after doing the necessary processing work within a reasonable time period and the defendant used to charge its processing charges as per the rates settled with them. As and when the amount was paid by the plaintiff to the defendant, the same was debited to the account of the defendant and the charges of processing as may be payable to the defendant as per the rates settled, used to be credited to the account of the defendant in the books of accounts maintained by the plaintiff in the ordinary course of business. The defendant did not return the complete fabric which was sent/entrusted to them for processing despite repeated requests and personal visits of the representatives of the plaintiff and finding no alternative, the price of the said goods/fabric which was not returned by the defendant, was debited to the account of the defendant and debit note in respect thereof was sent to the defendant. The debit notes dated 24.02.1997 were sent to the defendant by regd. Post at Faridabad Works of the defendant, the receipt of which was acknowledged by defendant vide letter dated 26.02.1997. Similarly, the debit note dated 31.03.1997 were also sent CS No.1549/16 (old No.181/16) Pg 3 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
by post to the defendant and copies thereof was also personally delivered at Nai Sarak Office of the defendant. The defendant used to take advance money on account of dyeing and processing time to time and sum of Rs.2000/- is also recoverable from the defendant on that account also. Despite sending the debit notes and specifically raising the claim by the plaintiff, the defendant did not pay the amount as per the debit notes nor returned the goods/fabric, and therefore, finding no alternative the plaintiff got issued a legal demand notice dated 26.08.1997, which was duly received and acknowledged by the defendant vide letter dated 11.09.1997 denying the liability and calling upon the plaintiff to reconcile the accounts and settle the issue. Since thereafter the plaintiff has been approaching the defendant and calling upon it to settle the accounts and personally visited their office at Faridabad as well as Nai Sarak Delhi, but the defendant instead of settling the account and pay the amount of the plaintiff, has refused to entertain the claim of the plaintiff. As per the case of the plaintiff, the dispute between the parties was required to be settled by way of arbitration of Delhi Hindustani Mercantile Association (Regd.) as per the terms and conditions printed on the debit notes, and according to the plaintiff it CS No.1549/16 (old No.181/16) Pg 4 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
constituted a valid and subsisting arbitration agreement. Accordingly, the plaintiff approached the Delhi Hindustani Mercantile Association (Regd.) and a reference was made to it and the plaintiff filed the statement of claim. The notice of the claim was sent to the defendant who initially appeared and subsequently failed to appear and was thereof proceeded ex-parte. Sh. Pramod Maheshwani, the Penal Arbitrator of the Delhi Hindustani Mercantile Association (Regd.) passed an Award dated 16.07.1999 against the defendant. On being served with the copy of the award, the defendant filed an objection petition under Section 34 of the Arbitration & Conciliation Act 1996 for setting aside the award dated 16.07.1999 which was assigned to the court of Sh. Sanjeev Jain, the then Civil Judge and was registered as Arbitration case No.378/99. After hearing the parties, the objections filed by the defendant were dismissed vide judgment and order dated 31.08.2001. The defendant preferred an appeal against the said judgment dated 31.08.2001 under Section 37 of the Arbitration & Conciliation Act, and vide order/judgment dated 23.10.2003 the court of Sh. Narrotam Kaushal, ADJ, Delhi allowed the appeal of the defendant and set aside the order of the trial court on the ground that there did not exist an arbitration agreement CS No.1549/16 (old No.181/16) Pg 5 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
between the parties as defined under Section 7 of the Arbitration & Conciliation Act 1996 and unilaterally printing out of an arbitration clause on the debit note does not constitute an arbitration agreement between the parties, and therefore, the Delhi Hindustani Mercantile Association (Regd.) had no jurisdiction to pass an award. Consequently, the award passed by the arbitrator stood set aside. The plaintiff herein however, filed the civil revision petition before the Hon'ble High Court of Delhi, which was registered as CRP No.15/06 and vide judgment dated 08.05.2007 the Hon'ble High Court of Delhi dismissed the said revision affirming the order of the Ld. Additional District Judge, Delhi, on the ground that there existed no arbitration agreement. The plaintiff had bonafidely been pursuing the remedy before the court of competent jurisdiction believing that there existed a valid and subsisting arbitration agreement, but it was held by the Hon'ble High Court of Delhi finally on 08.05.2007 that the printed clause on the debit notes does not constitute the arbitration agreement. The plaintiff is, therefore, entitled to exclude the period during which the plaintiff had been pursuing the remedy in a wrong court under wrong impression and is entitled to get the benefit of excluding the said period for the purpose of calculation the period of CS No.1549/16 (old No.181/16) Pg 6 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
limitation under Section 14 of Limitation Act. The plaintiff for the first time filed the claim petition before the Arbitrator on 08.04.1998 and the final order was passed by the High Court on 08.05.2007. Thus, the plaintiff is entitled to exclude the period from 08.04.1998 to 08.05.2007 for the purpose of calculation of limitation for filing the present suit for recovery. The defendant is also liable to pay the interest @ 24% p.a. as per market usage and custom which was duly notified to the defendant vide notice dated 26.08.1997. The said amount of interest for the period from 24.02.1997 till 08.04.1998 i.e. when the claim petition was filed before the arbitrator, comes to Rs.17,377/-. In this way the defendant is liable to pay a sum of Rs.72,408.5/- on account of principal and further a sum of Rs.17,377/- on account of interest, thus totaling to a sum of Rs.89,785.35/- to the plaintiff as on date of filing of the suit. Plaintiff has not claimed the interest for the period during which the plaintiff had been pursuing the remedy in different courts, in view of the findings having been given by the High Court of Delhi against the plaintiff.
4. The defendant filed its written statement while controverting the case of the plaintiff and submitted that the suit of the plaintiff is patently and hopelessly time barred. The plaintiff has alleged the CS No.1549/16 (old No.181/16) Pg 7 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
date of transaction of the year 1997. Though the case of the defendant is that there is no such transaction took place between the plaintiff and the defendant. The ground alleged for extension of time in para 16 of the suit is no ground. The Arbitrator is not a court within the meaning of Section 14 of the Limitation. Moreover, none of the ingredients of Section 14 of the Limitation Act has been fulfilled by the present case. The present suit is mischievous and not maintainable. The same is based on false, fabricated and forged documents including bills, debit notes and challans. There was only one transaction between M/s. Madan Lal Khanna & Co. and defendant vide invoice No.21 and invoice No.21 (Excise) dated 14.11.1995 for processing amount and amount of excise, which transaction is complete and fulfilled. The suit of the plaintiff otherwise also is not maintainable, as Sh. Vijay Khanna is not a proprietor of M/s. Madan Lal Khanna & Co. In Arbitration proceedings it was alleged that M/s Madan Lal Khanna Co. is a partnership concern. The said concern is not a registered firm as required under Section 69 of the Partnership Act. Therefore, suit by plaintiff is not maintainable.
5. Plaintiff filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the CS No.1549/16 (old No.181/16) Pg 8 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
case as set up by the plaintiff in the plaint.
6. Vide order dated 17.03.2008, following issues were framed for trial:-
1. Whether the suit of the plaintiff is barred by limitation? OPP.
2. Whether the suit of the plaintiff is based on false, fabricated and forged documents? OPD.
3. Whether the suit of the plaintiff is not maintainable as Sh. Vijay Khanna is not a proprietor of the defendant? OPD.
4. Whether the plaintiff is entitled for recovery of suit amount along with interest, as claimed?
OPP.
5. Relief.
7. In order to prove his case, the sole witness on behalf of the plaintiff is plaintiff himself whose examination-in-chief is by way of affidavit Ex.PW-1/A. PW-1 relied on following documents:-
1. Ex.PW1/1 carbon copy of challan No.5290 dated 02.01.1997 (objected to being mode of proof and admissibility).
2. Ex.PW1/2 carbon copy of challan No.5284 dated 23.09.1996 (objected to being mode of proof and admissibility).
3. Ex.PW1/3 carbon copy of challan No.5285 dated 23.09.1996 (objected to being mode of proof and admissibility).
4. Ex.PW1/4 carbon copy of debit note No.1341 dated 24.02.1997 (objected to being mode of proof and admissibility).
CS No.1549/16 (old No.181/16) Pg 9 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
5. Ex.PW1/5 carbon copy of debit note No.1343 dated 24.02.1997 (objected to being mode of proof and admissibility).
6. Ex.PW1/6 carbon copy of debit note No.1342 dated 24.02.1997 (objected to being mode of proof and admissibility).
7. Ex.PW1/7 carbon copy of debit note No.1363 dated 31.03.1997 (objected to being mode of proof and admissibility).
8. Ex.PW1/8 carbon copy of debit note No.1373 dated 31.03.1997 (objected to being mode of proof and admissibility).
9. Ex.PW1/9 carbon copy of letter dated 26.02.1997 (objected to being mode of proof and admissibility).
10. Ex.PW1/10 original postal receipt dated 26.08.1997 of legal notice dated 26.08.1997 (objected to being mode of proof).
11. Ex.PW1/11 original AD card of legal notice dated 26.08.1997 (objected to being mode of proof).
12. Ex.PW1/12 computerized copy of legal notice dated 26.08.1997 (objected to being mode of proof and admissibility).
13. Ex.PW1/13 original reply of legal notice dated 11.09.1997 (objected to being mode of proof and admissibility).
14. Ex.PW1/14 statement of account of defendant (objected to being mode of proof and admissibility).
15. Ex.PW1/15 is de-exhibited and now is marked as Mark-A is copy of award.
16. Ex.PW1/16 is de-exhibited and now is marked as Mark-B is copy of certified copy of judgment dated 31.08.2001.
CS No.1549/16 (old No.181/16) Pg 10 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
17. Ex.PW1/17 certified copy of judgment dated 08.05.2007.
(The objections to the mode of proof and admissibility are addressed and decided in para No.18 of the judgment).
8. On the other hand, defendant to prove his case examined Sh. J.P. Keshwani, Director of defendant company, whose examination-in- chief is by way of affidavit Ex.DW-1/A. DW-1 relied on following documents:-
1. Ex.DW-1/1 certified copy of judgment of the court of Sh. Narottam Kaushal, Ld. ADJ/Delhi which is already exhibited as Ex.PW-1/D-1.
2. Ex.DW-1/2 certified copy of judgment of the Hon'ble High Court of Delhi which is already exhibited as Ex.PW-1/17.
3. Ex.DW-1/3 invoice No.21 and 21 (Excise) which is already exhibited as Ex.PW-1/D-2.
9. I have heard the arguments and perused the record. Issue-wise findings as follows:-
ISSUE NO.1 Whether suit of plaintiff is barred by limitation? OPP.
10.The burden of proving this issue was mentioned when issues were framed on plaintiff. However, the burden of proving this issue was on the defendant. It is submitted by counsel for plaintiff that last CS No.1549/16 (old No.181/16) Pg 11 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
transaction was of the date 31.03.1997. In pursuance of the claim of plaintiff for recovery of sum of Rs.89,785.35/-, the plaintiff had approached the Delhi Hindustani Mercantile Association (Regd.) for arbitration between the plaintiff and defendant as any dispute between plaintiff and defendant was subject to the arbitration under Delhi Hindustani Mercantile Association (Regd.). In arbitration proceedings, defendants were ex-parte and arbitrator had passed ex- parte award dated 16.07.1999 in favour of the plaintiff and against the defendant. Defendant challenged the award passed by the arbitrator under Section 34 of Arbitration and Conciliation Act for setting aside award dated 16.07.1999. The court of Sh. Sanjeev Jain, had dismissed the objection filed by defendant by judgment/order dated 31.08.2001. Against the said order, the defendant preferred an appeal under Section 37 of Arbitration and Conciliation Act, 1996. Vide order dated 23.10.2003, the court of Sh. Narottam Kaushal, Ld. ADJ had allowed the appeal of the defendant and set aside the order of trial court on the ground that there did not exist any arbitration agreement between the parties. Against the said order, dated 23.10.2003, the plaintiff filed a civil revision petition before Hon'ble High Court of Delhi, however, the said revision petition (CRP CS No.1549/16 (old No.181/16) Pg 12 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
No.15/06) had been dismissed by Hon'ble High Court of Delhi vide order dated 08.05.2007.
11.On the basis of these facts, the counsel for plaintiff has submitted that as the plaintiff was proceeding in good faith a civil proceeding, the time taken in prosecution of those proceedings should be excluded under Section 14 of Limitation Act and when limitation is calculated after exclusion of time taken in prosecution of earlier arbitration and subsequent proceedings in courts, the suit is well within period of limitation.
12.The counsel for defendant had argued that section 14 of Limitation Act is not applicable in the present fact scenario as firstly, Arbitrator is not a court within the meaning of Section 14 of Limitation Act, secondly, for the applicability of Section 14 of Limitation Act, the parties have to be same, however, in the present case, the claim before Arbitrator had been filed by the partnership Firm and suit before this court has been filed by the plaintiff as proprietor of Proprietorship Firm. Thirdly, it is submitted by the counsel for defendant that the dispute before this court is not the same as the dispute was before the Arbitrator.
13.The perusal of record and arguments advanced on behalf of parties CS No.1549/16 (old No.181/16) Pg 13 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
makes it clear that before the Arbitrator, challan No.5290 was not in dispute as appears from the judgment/order dated 31.08.2001 Ex.PW-1/16 passed by Sh. Sanjeev Jain, the then Ld. Civil Judge on the objections filed by the defendant. Apart from it, it also appears from Ex.PW-1/16 that challan No.6410, 6411, 5264, 5275, 5288, 1290, 5270, 5286, 1245 had been subject matter of dispute before the Arbitrator and consequently before the courts where objections had been filed, however, these challans have not been filed before this court nor any reliance has been placed on these challans for the claim of the plaintiff against the defendant. As subject matter of controversy does not appear to be same before the Arbitrator and before this court, Section 14 of Limitation Act does not seem to apply.
14.Even otherwise, the proceedings before the Arbitrator were filed by the Partnership Firm, however, the proceedings before this court have been filed by the plaintiff as Proprietor of a Proprietorship Firm. It has been submitted by the counsel for plaintiff that at the time of transaction between the parties and at the time of filing of Arbitration proceedings, the plaintiff was a Partnership Firm, however, at the time of filing the present suit, the Partnership Firm CS No.1549/16 (old No.181/16) Pg 14 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
was dissolved and the present plaintiff had been authorized to recover the disputed amount from the defendant in the present case. However, in the absence of any proof of the existence of Partnership and then its dissolution and also of the the fact that after dissolution the plaintiff got the right to recover the amount disputed in the present case from the defendant, no substance is found in the contentions of the counsel for the plaintiff. Accordingly, as facts exists on court file, the plaintiff in the present case cannot be same person who had initiated the Arbitration proceedings.
15.In view of the above discussion, plaintiff is not entitled to the benefit of Section 14 of the Limitation Act. In the absence of benefit of availability of Section 14 of Limitation Act in favour of the plaintiff, the suit of recovery filed by the plaintiff beyond a period of three years, is barred by law of limitation. Issue is decided against the plaintiff.
ISSUE NO.4 Whether plaintiff is entitled for recovery of suit amount along with interest as claimed? OPP.
16.The burden of proving this issue was on the plaintiff. To discharge this burden, the plaintiff has examined himself as PW-1. PW-1 in his CS No.1549/16 (old No.181/16) Pg 15 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
affidavit of examination-in-chief, reaffirmed and reiterated all the contents of the plaint. In his cross-examination PW-1 had stated that M/s. Madan Lal Khanna & Co. had filed a claim against the defendant before Delhi Hindustani Mercantile Association. PW-1 had not denied the suggestion and had merely stated that he does not remember that M/s. Madan Lal Khanna & Co. was a Partnership Firm. PW-1 had stated that it might have been, however, he is not sure. PW-1 had denied the suggestion that M/s. Madan Lal Khanna & Co. is a Proprietorship concern. PW-1 had denied the suggestion that no goods were entrusted or sent to the defendant vide challan No.5290, 1254, 5284, 5285 & 689 by the plaintiff. PW-1 had stated that he had entered those challan in their books of accounts. PW-1 had admitted that he had not placed any Goods Receipt or Transport Receipt on record. PW-1 had voluntarily stated that goods were delivered at the shop of defendant. PW-1 had stated that as confirmation of delivery of goods by M/s. Kumar Syntax vide challan No.1254 to the defendant on behalf of plaintiff, the plaintiff had placed on record document Ex.PW-1/6 and Ex.PW-1/9. PW-1 had admitted it to be correct that Ex.PW-1/6 and Ex.PW-1/9 are not written by M/s. Kumar Syntax. PW-1 had stated that there is no transport builty as a proof of CS No.1549/16 (old No.181/16) Pg 16 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
delivery of goods by him. The goods were delivered by our employee at the shop of defendant at Nai Sarak, Delhi. PW-1 had stated that his books of accounts are audited however, he does not know whether he has filed any audited balance sheet or not. PW-1 had admitted it to be correct that defendant had raised the bill Ex.PW-1/D2. PW-1 had stated he cannot show any receipt of the payment to the defendant as alleged in para 9 of his affidavit. PW1 had stated that he had made an entry of payment in Bahi kept by him.
17.In order to rebut the evidence as well as case of the plaintiff, Sh. J.P. Keshwani one of the Directors of the defendant company had been examined as DW-1. DW-1 in his affidavit of examination-in-chief, has reaffirmed and reiterated all the contents of written statement. In his cross-examination DW-1 had stated that defendant company has executed Board of Resolution in his favour to peruse the present case. DW-1 had stated that he had not filed the said resolution in the judicial record. DW-1 had stated that written statement filed along with affidavit bears his signatures. However, when confronted, DW-1 had stated that written statement and supporting affidavit have not been signed by him. DW-1 had stated that the signatures on written statement and affidavit are of Sh. S.C. Keshwani, other Director of the CS No.1549/16 (old No.181/16) Pg 17 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
defendant company. DW-1 had admitted it to be correct that except affidavit Ex.DW-1/A, no other documents have been signed by him on the record of judicial file. DW-1 had stated he knows Vijay Khanna since 1995. Again said, he knows Madan Lal Khanna & Co. not Vijay Khanna. DW-1 had stated that he does not know in which manner the goods were delivered in respect of invoice No.21 for job work. DW-1 had not denied the suggestion and had merely stated that he does not remember whether the letter Ex.PW-1/9 was received by his company or not. DW-1 had stated that address of defendant company given on AD card Ex.PW-1/11 is correct. DW-1 had stated that letter head of document Ex.PW-1/13 does not belong to his company, however, name and address printed on that document is correct.
18.From the perusal of record and consideration of arguments advanced on behalf of parties, it appears that plaintiff has not validly proved most of the documents on which plaintiff had been substantially relying for the purposes of his claim. Ex.PW-1/1 to Ex.PW-1/9, PW- 1/12, Ex.PW-1/13 are all photocopies/carbon copies of documents, issued by plaintiff to the defendant. It is submitted by the counsel for plaintiff as document in original had been issued to the defendant, the plaintiff was in possession of these carbon copies only and CS No.1549/16 (old No.181/16) Pg 18 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
accordingly same can be validly proved. However, the court is of the view that for the purposes of proving the evidence through secondary evidence, the notice under Section 65 of Evidence Act or under Order 12 Rule 8 of CPC was required to be given by the plaintiff to the defendant. Only in the event of non production of documents, in pursuance of notice under Section 65 of Evidence Act or under Order 12 Rule 8 of CPC, the carbon copies/photocopies could have been brought by the plaintiff in support of his claim against the defendant. There is a computer generated document Ex.PW-1/14 which is said to be part of accounts/ ledger of the plaintiff, however, same cannot be read in the absence of Certificate under Section 65-B of Evidence Act. No witness has been summoned from the concerned department for proving documents Ex.PW-1/10 and Ex.PW-1/11. In his cross-examination, though PW-1 had admitted that his accounts are being audited but no audit report has been filed and proved in the present case. Plaintiff has himself stated that he had mentioned the fact of payment in a Bahi kept by him. However, no such Bahi has been exhibited or proved. The plaintiff had been unable to prove or to place on record any of the receipt showing delivery of goods by the plaintiff directly to the defendant or delivery CS No.1549/16 (old No.181/16) Pg 19 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
of goods to the defendant on behalf of the plaintiff. In the absence of proper proof of document on which the plaintiff is relying for his claim against the defendant, the case of plaintiff has not been properly proved.
19.Assuming for a while, that these documents have been proved by the plaintiff properly, the claim of plaintiff in the present case for the sum of Rs.89,785.35/- does not arrive from the totaling of debit notes Ex.PW-1/4 to Ex.PW-1/8. The sum total of all these debit notes becomes Rs.70,271.70/-. There is no justification and explanation as to how the sum of Rs.89,789.35/- is arrived at by the plaintiff.
20.Apart from the defect in proving the documents relied upon by the plaintiff, it appears that plaintiff has not shown his locus standi to file the present suit. As per document Ex.DW-1/P-1, PW-1/16 & PW-1/D-1 the entity entitled to recovery of the disputed sum from the defendant was M/s. Madan Lal Khanna & Co. which was a partnership Firm. The present plaintiff in this case is suing as a proprietor of M/s. Madan Lal Khanna & Co. a Proprietorship Firm. Though the counsel for the plaintiff has submitted that at the time of transaction between the parties and at the time of filing of Arbitration proceedings, the plaintiff was a Partnership Firm, however, at the CS No.1549/16 (old No.181/16) Pg 20 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
time of filing the present suit, the Partnership Firm was dissolved and the present plaintiff had been authorized to recover the disputed amount from the defendant in the present case. However, in the absence of any proof of existence of Partnership and then its dissolution and also the fact that after dissolution the plaintiff got the right to recover the amount disputed in the present case from the defendant, no substance is found in the contentions of the counsel for the plaintiff.
21.In view of all the abovesaid discussion, plaintiff has been unable to prove that he had supplied the goods in question to the defendant either directly or through some companies and accordingly, the plaintiff has also been unable to prove that he is entitled to recover the amount of Rs.89,785.35/- from the defendant. This issue is decided against the plaintiff.
ISSUE NO.3 Whether suit of the plaintiff is not maintainable as Sh. Vijay Khanna is not proprietor of defendant? OPD.
22.The burden of proving this issue was on the defendant. It appears that while framing this issue, it has been mentioned wrongly that "...Vijay Khanna is not proprietor of defendant", it has to be "...Vijay CS No.1549/16 (old No.181/16) Pg 21 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
Khanna is not proprietor of plaintiff". In pursuance of finding on issues No.1 and 4, it can be stated that M/s. Madan Lal Khanna & Co. was a partnership Firm to begin with. Plaintiff had himself admitted in his cross-examination that to begin with M/s. Madan Lal Khanna & Co., might have been a partnership Firm but he is not sure. PW-1 had not expressly denied that M/s. Madan Lal Khanna & Co. was not a partnership Firm. Plaintiff himself has not filed any document showing that after dissolution of partnership Firm, the plaintiff had been authorized to carry on the business of the erstwhile partnership concern in the form of Proprietorship or that the plaintiff had been authorized to recover the old dues on behalf of partnership Firm. Accordingly, it could not be proved that Sh. Vijay Khanna was entitled to recover the sum in dispute in the present case as a proprietor of M/s. Madan Lal Khanna & Co. Hence, this issue is decided against the plaintiff.
ISSUE NO.2 Whether suit of plaintiff is based on false, fabricated and forged documents? OPD.
23.The burden of proving this issue was on the defendant. First of all counsel for defendant had referred to the challans which were CS No.1549/16 (old No.181/16) Pg 22 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
subject matter of dispute before Arbitrator, however, same challans had not been made the subject matter of dispute before this court and there are some other challans which had been made basis of the claim of the plaintiff in the present case. More importantly the counsel for defendant had referred to the documents of plaintiff itself. Ex.PW-1/12 mentions in para 6 that as per one of the terms and conditions, printed on the challan is of an Arbitration as per which in case of any dispute regarding the same shall be referred to the arbitration of Delhi Hindustani Mercantile Association, Chandni Chowk, Delhi. Ex.DW-1/P-1 also points out that the arbitration clause jurisdiction "subject to Delhi Hindustani Mercantile Association"
clearly printed out said debit notes. Ex.PW-1/16 also points out at page No.10 at the bottom that "there is a written agreement on the debit note, it is mentioned jurisdiction subject to D.H.M.A." The counsel for defendant had pointed out that none of the debit notes Ex.PW-1/4 to Ex.PW-1/8 and none of the challans Ex.PW-1/1 to Ex.PW-1/3 has mention of any arbitration clause or of Delhi Hindustani Mercantile Association. Apart from it, it has been pointed out by the counsel for defendant that in the judgment of Ld. ADJ Sh. Narrotam Kaushal on page No.1 and 2, an observation had been given CS No.1549/16 (old No.181/16) Pg 23 of 25 Vijay Khanna v. M.H. Textile Pvt. Ltd.
by the Ld. ADJ that the debit notes subject to Arbitration had not been received by anyone on behalf of defendants in the present case. However, the perusal of debit notes Ex.PW-1/4 to Ex.PW-1/8 makes it clear that these debit notes have been received by some Birpal Singh on behalf of defendant.
24.The court has heard the arguments of both the parties and perused the record in this regard, it becomes clear that there has been continuous discussion in arbitration proceedings at every level that the debit notes as well as challans contain in its terms that any dispute shall be subject to jurisdiction of Arbitration of Delhi Hindustani Mercantile Association. However, the debit notes and challans filed by plaintiff does not contain any such stipulation. Apart from it, the signatures on debit notes Ex.PW-1/4 to Ex.PW-1/8 either appears to have been made subsequent to the arbitration proceedings or these debit notes itself have been prepared for the purposes of filing in the present suit only. In view of the above discussion, the defendant had been able to prove that suit of the plaintiff is based on false, fabricated and forged documents. This issue is decided in favour of defendant.
CS No.1549/16 (old No.181/16) Pg 24 of 25
Vijay Khanna v. M.H. Textile Pvt. Ltd.
RELIEF
25.In view of the discussion on the issues hereinabove, it is held that plaintiff has not been able to prove his case, therefore, suit of the plaintiff is dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
Digitally signedby MAYANK
MAYANK MITTAL
File be consigned to Record Room. MITTAL Date:
2018.07.25
16:21:38 +0530
Announced in the open court (Mayank Mittal)
on 24.07.2018 Civil Judge - 08 (Central)/Delhi
CS No.1549/16 (old No.181/16) Pg 25 of 25