Delhi District Court
Also Residing At vs M/S S. K Enterprises on 30 September, 2022
Dated: 30.09.2022
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010072142018
CS No. 606/18
In the matter of :-
Mr. Brijesh Sharma
Proprietor of M/s Nandan Printers
and Packers,
J-45, Sector, DSIIDC,
Bawana, Delhi
Also residing at:
J-2B, Rajeev Gandhi Housing Complex,
Sector-3, Bawana,
Delhi-110039 ...... Plaintiff
Versus
M/s S. K Enterprises
Through Prop. Shiv Kumar Baweja,
At Khasra No. 647,
Adjacent APR Public School,
Libaspur Road, Siraspur, Delhi
Also residing at:
D-117, Second Floor,
Ashok Vihar Phase-1,
Delhi-110058 ......Defendant
CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 1 of 16
Dated: 30.09.2022
Date of Institution 04.08.2018
Date of Final Argument 06.08.2022
Date of pronouncement of 30.09.2022
judgment
SUIT FOR RECOVERY OF SUM OF RS. 12,52,110/-
ALONGWITH PENDENTE LITE AND FUTURE
INTEREST WITH COST
EX-PARTE JUDGMENT
1. Vide this judgment I shall dispose off the suit of the plaintiff
filed for recovery of Rs. 12,52,110/- alongwith pendente lite
and future interest.
2. The brief facts of the case is that the plaintiff is operating and
running a printing press and doing job work of printing
materials and also prints shopping bags.
3. It is submitted by the plaintiff that the defendant in the month
of November 2015, approached the plaintiff and requested
plaintiff for the printing of the materials. The plaintiff starting
from Nov 2015, did the job work of printing of the materials
and raised invoices from time to time against the defendant
for business dealings and thereby plaintiff believed and relied
upon the defendant and delivered the job works and the
CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 2 of 16
Dated: 30.09.2022
defendant has accordingly issues the following cheques
towards the discharge of liability:-
S. No. Particulars Date Sum Drawn
1. Cheque no. 000198 30.05.16 156178/- Bank of
India, Kamla
Nagar
Branch, New
Delhi-7.
2. Cheque no. 046056 28.06.16 175000/- Bank of
India, Kamla
Nagar
Branch, New
Delhi-7.
3. Cheque no. 046057 28.06.16 200000/- Bank of
India, Kamla
Nagar
Branch, New
Delhi-7.
4. Cheque no. 046058 28.06.16 192000/- Bank of
India, Kamla
Nagar
Branch, New
Delhi-7.
5. Cheque no. 046066 20.07.16 400000/- Bank of
India, Kamla
Nagar
Branch, New
Delhi-7.
6. Cheque no. 046068 30.07.16 128942/- Bank of
India, Kamla
Nagar
Branch, New
Delhi-7.
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Dated: 30.09.2022
At the time of issuing the said cheques the defendant had
assured the plaintiff that the said cheques on presentation
shall be encashed and honored by the bank of the defendant.
That plaintiff presented the aforesaid said cheques in the bank
mentioned above but the bank returned the cheques with the
remarks exceed arrangement and insufficient fund on
21.07.2016 & 02.08.2016.
4. It is submitted by the plaintiff that the defendant promised
and given the assurance that the said cheques shall be
honored on being represented again or he would pay in cash
the amount of dishonoured cheques.
5. It is submitted by the plaintiff that the plaintiff had served
legal notices dated 06.08.2016 and 24.08.2016 through
courier and registered post and reply of the notice has been
received on 27.08.2016. That the defendant had failed to
make the payment after receiving the legal notice.
6. It is submitted by the plaintiff that the plaintiff left with no
other alternative thereafter had filed complaint cases under
section 138 of Negotiable Instrument Act against the
defendant and both the complaints cases are pending before
the court of Sh. Gagandeep Singh C.M.M. Rohini Court.
7. It is submitted by the plaintiff that the defendant has out his
appearance in the cases filed under section 138 of Negotiable
CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 4 of 16
Dated: 30.09.2022
instrument Act and took false plea in his defense filed under
section 145(2) of Negotiable Instruments Act.
8. It is submitted by the plaintiff that the defendant is liable to
make the payment of the cheque amount with interest from
the date of issuance of the same and when the cheques
returned unpaid due to insufficient fund. The defendant is
liable to make the payment towards the job work of printing
done by the plaintiff and deliberately avoided to make the
payment of the cheques dishonored. It is prayed by the
plaintiff that a decree of Rs. 12,52,110/- be passed in his
favour along with the interest.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT
9. It is submitted by the defendant that no cause of action has
arisen in favor of plaintiff and against the defendant, therefore
the plaint is liable to be dismissed under order 7 rule 11
C.P.C.
10. It is submitted by the defendant that the plaintiff wants to get
the benefit of good relation between him and defendant. The
defendant had been paying the amount of job work which
was only Rs. 10 paisa to Rs 1.65/- (one rupee sixty five
paisa).
11. It is submitted by the defendant that due to the aforesaid
reason no bill was raised by the plaintiff which clearly shows
CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 5 of 16
Dated: 30.09.2022
that the defendant was not purchasing the goods but only
getting a job work done from the plaintiff.
12. It is submitted by the defendant that the plaintiff and
defendant were in good relation with each other and the
plaintiff requested the defendant that his chartered accountant
has said that to increase his sale and to get other government
benefits, it is important to show good sale in the books so that
government benefits can be availed and for that reason the
Plaintiff was taking cheques and depositing the amount of his
own to get the cheques clear so that he may show good sale in
his books enabling him to get government benefits which
were available as per the chartered accountant. Since, the
relation between plaintiff and defendant were very cordial,
the defendant did not find any foul play in the hands of
plaintiff and issued the cheques as per promise. The plaintiff
did not presented the cheques on the due date and got the
same dishonoured when relation between them were
weakened, stain without depositing the accounts of defendant.
13. The defendant was proceeded ex-parte vide order dated
01.04.2022. In order to prove his case, defendant had never
led any evidence nor cross- examined any plaintiff's witness.
14. The PW-1 Sh. Brijesh Sharma tendered its evidence by way
of affidavit Ex. PW1/A bearing his signature at point A and B,
PW-1 has relied upon the following documents:-
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Dated: 30.09.2022
1. Carbon copy of Bill No. 571 is Ex. PW1/1.
2. Carbon copy of Bill No. 555 is Ex. PW1/2.
3. Carbon copy of Bill No. 564 is Ex. PW1/3.
4. Carbon copy of Bill No. 578 is Ex. PW1/4.
5. Carbon copy of Bill No. 583 is Ex. PW1/5.
6. Carbon copy of Bill No. 585 is Ex. PW1/6.
7. Carbon copy of Bill No. 591 is Ex. PW1/7.
8. Carbon copy of Bill No. 597 is Ex. PW1/8.
9. Carbon copy of Bill No. 613 is Ex. PW1/9.
10.Carbon copy of Bill No. 620 is Ex. PW1/10.
11.Carbon copy of Bill No. 1452 is Ex. PW1/11.
12.Carbon copy of Bill No. 1465 is Ex. PW1/12.
13.Carbon copy of Bill No. 1470 is Ex. PW1/13.
14.Carbon copy of Bill No. 1472 is Ex. PW1/14.
15.Carbon copy of Bill No. 1478 is Ex. PW1/15.
16.Carbon copy of Bill No. 1523 is Ex. PW1/16.
17.Carbon copy of Bill No. 1531 is Ex. PW1/17.
18.Carbon copy of Bill No. 1535 is Ex. PW1/18.
19.Carbon copy of Bill No. 1543 is Ex. PW1/19.
20.Carbon copy of Bill No. 1547 is Ex. PW1/20.
21.Carbon copy of Bill No. 1617 is Ex. PW1/21.
22.Carbon copy of Bill No. 1558 is Ex. PW1/22.
23.Carbon copy of Bill No. 1571 is Ex. PW1/23.
24.Carbon copy of Bill No. 1589 is Ex. PW1/24.
25.Carbon copy of Bill No. 1754 is Ex. PW1/25.
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Dated: 30.09.2022
26.Carbon copy of Bill No. 1757 is Ex. PW1/26.
27.Carbon copy of Bill No. 1760 is Ex. PW1/27.
28.Carbon copy of Bill No. 1771 is Ex. PW1/28.
29.Carbon copy of Bill No. 1772 is Ex. PW1/29.
30.Carbon copy of Bill No. 1776 is Ex. PW1/30.
31.Carbon copy of Bill No. 2193 is Ex. PW1/31.
15. In further support of its case and in order to prove its case, the
plaintiff examined PW-2 Sh. Nishant, Assistant Ahlmad, in
the court of Ms. Deepika Singh, Ld. CMM North, he had
brought the following summoned record i.e. Ct. Case No.
4931/17 and Ct. Case No. 4932/17.
Ct. Case No. 4931/17 consists the following documents:
(all documents are OSR)
1. Cheque no. 046066 Ex. PW2/1.
2. Cheque no. 046068 Ex. PW2/2.
3. Returning memo from Bank of Baroda, Service
Branch, New Delhi is Ex. PW2/3.
4. Legal notice dated 24.08.2016 is Ex.PW2/4.
5. Speed Post receipt is Ex. PW2/5.
6. Three currier receipts are Ex. PW2/21 (colly.)
Ct. Case No. 4932/17 consist the following documents
(all documents are OSR):
7. Cheque no. 000198 is Ex. PW2/6.
8. Cheque no. 046056 is Ex. PW2/7.
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Dated: 30.09.2022
9. Cheque no. 046057 is Ex. PW2/8.
10. Cheque no. 046058 is Ex. PW2/9.
11.Returning memos are Ex. PW2/9 (I), Ex. PW2/10 and
Ex. PW2/11.
12.Legal notice dated 06.08.2016 is Ex. PW2/12.
13.Currier receipt no. 1023887922 is Ex. PW2/13.
14.Two Speed post receipts are Ex. PW2/14 and PW2/15.
15.AD Card is Ex. PW2/16.
16.Speed Post no. ED 125205949IN is Ex. PW2/17.
17.Reply to legal notice dated 27.08.2016 is Ex. PW2/18.
18.Complaint no. 4932/17 is Ex. PW2/19.
19.Complaint no. 4931/17 is Ex. PW2/20.
16. I have heard, Ld. Counsel for the plaintiff and gone through
the evidences and records of the case and relevant provision
of law.
17. The burden to prove the suit for recovery along with
pendente lite and future interest is upon the plaintiff. In order
to prove his case to this effect, the plaintiff placed reliance
upon his testimony as PW-1, PW-2 and the documents Ex.
PW1/1 to Ex. PW1/31 and PW2/1 to PW2/21.
18. The first and the foremost aspect of this suit is that whether
the present civil suit is maintainable if the proceedings under
Section 138 of the Negotiable Instrument Act and Section 420
CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 9 of 16
Dated: 30.09.2022
of IPC 1860 were already initiated by the plaintiff against the
defendant. In this regards, this court relies on the binding
precedent of the Hon'ble Supreme Court in the deciding the
similar issue in case "Vishnu Dutt Sharma vs. Daya Sapra
(2009) 13 SCC 729" wherein it was categorically held that:
"8. There cannot be any doubt or dispute that a
creditor can maintain a civil and criminal proceed-
ing at the same time. Both the proceedings, thus, can
run parallel. The fact required to be proved for ob-
taining a decree in the civil suit and a judgment of
conviction in the criminal proceedings may be over-
lapping but the standard of proof in a criminal case
vis-à-vis a civil suit, indisputably is different.
Whereas in a criminal case the prosecution is bound
to prove the commission of the offence on the part of
the accused beyond any reasonable doubt, in a civil
suit "preponderance of probability" would serve the
purpose for obtaining a decree.
31. In view of these authoritative pronouncements,
we have no doubt in our mind that principles of res
judicata are not applicable in the facts and circum-
stances of this case."
Therefore, the principles of res juicata in the present
suit shall not apply and suit is maintainable on above
mentioned aspect.
19. As per the Section 101 of the Indian Evidence Act, the
plaintiff must prove the existence of any legal right even if
the defendant vide this court order dated 01.04.2022 had been
proceeded ex-parte and had not lead any evidence in defence.
However, the defendant no.1 in its written statement has out
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Dated: 30.09.2022
rightly denied the legal rights and claims of the plaintiff and
categorically stated that the cheques were given only to avail
government benefits and no actual business took place for
such amount. Therefore, the plaintiff has to prove his case and
stand on his own legs. The court places reliance upon the
judgment of the Hon'ble Madras High Court in the case titled
as "K. Balakrishnan vs. S. Dhanasekhar, 2017 SCC Online
Mad 30659" where it was held as follows:
"When the defendant is set exparte, the burden is
heavy on the Court, as it would not have the
advantage of defence. Therefore, the Court should be
extra careful in such cases and they should consider
the pleadings and evidence and should arrive at a
finding as to whether the plaintiff has made out a
case for a decree.
In view of the above, it is clear that the court, at no
stage, can act blindly or mechanically. While
enabling the court to pronounce judgment in a
situation where no written statement is filed by the
defendant, the court has also been given the
discretion to pass such order as it may think fit as
an alternative. This is also the position under Order
8 Rule 10 CPC where the court can either
pronounce judgment against the defendant or pass
such order as it may think fit."
20.In this regards, this court further relies on the Hon'ble Apex
Court judgment in the case titled as "Rangammal v.
Kuppuswami (2011) 12 SCC 220" has held as under:
"34. It has been further held by the Supreme Court
in the case of State of J& K v. Hindustan Forest
Company, (2006) 12 SCC 198, wherein it was held
that the onus is on the plaintiff to positively establish
its case on the basis of material available and it
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Dated: 30.09.2022
cannot rely on the weakness or absence of defence to
discharge onus.
35. It was still further held by this Court in the
matter of Corporation of City of Bangalore v.
Zulekha Bi, 2008 that it is for the plaintiff to prove
his title to the property. This ratio can clearly be
made applicable to the facts of this case for it is the
plaintiff who claimed title to the property which was
a subject-matter of the alleged sale deed of
24.2.1951 for which he had sought partition against
his brother and, therefore, it was clearly the
plaintiff who should have first of all established his
case establishing title of the property to the joint
family out of which he was claiming his share.
When the plaintiff himself failed to discharge the
burden to prove that the sale deed which he
executed in favour of his own son and nephew by
selling the property of a minor of whom he claim no
witness was examined in his support with regard to
supply of material. The Appellate Court has
considered imed to be legal guardian without
permission of the court, it was clearly fit to be set
aside by the High Court which the High Court as
also the courts below have miserably failed to
discharge.
36. The onus was clearly on the plaintiff to
positively establish his case on the basis of material
available and could not have been allowed by the
High Court to rely on the weakness or absence of
defence of the defendant/appellant herein to
discharge such onus. The Courts below thus have
illegalily and erroenly failed not to cast this burden
on Respondent 1-plaintff by clearly Section 67 in
The Indian Evidence Act, 1872 misconstruing the whole cae and thus resulted into recording of finding which are wholly perverse and even against the admitted case of the parties."
21. To substantiate its claim the plaintiff had filed Ex.PW1/1 to PW1/31 and submitted that these relied upon documents are carbon copy of bills, however, on careful perusal of such CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 12 of 16 Dated: 30.09.2022 documents it is apparent that these documents are "Delivery Challans" (and not bills) issued in favor of "Shiv Kumar Ji". On the said documents, TIN (Taxpayer Identification Number) no. 07800470385 is printed on the top of the delivery challans and only description of goods and its weight is mentioned, pertinently no amount is mentioned on the delivery challans.
22.The Ex.PW1/1 to PW1/31 are delivery challans and has be to viewed in terms of governing statutory provisions of the Sales Tax Act and Rules. It is apparent that the plaintiff firm was registered under the Delhi VAT Act prevailing during the material time, therefore as per Section 3 & 4 of the DVAT read with Rule 3 of the DVAT Rules the plaintiff firm was under the statutory obligation to file Sales Tax Returns periodically, subsequently, to pay applicable sales tax. Section 3 of the DVAT Act is reproduced to the sake of convenience herein below:
"3 Imposition of tax:
(1) Subject to other provisions of this Act, every dealer who is -
(a) registered under this Act; or
(b) required to be registered under this Act;
shall be liable to pay tax calculated in accordance with this Act, at the time and in the manner provided in this Act."
23. On careful perusal of the Ex.PW1/1 to PW1/31 i.e., the delivery challans, it is observed that the name "Shiv Kumar Ji" is mentioned as opposed to the name of the defendant CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 13 of 16 Dated: 30.09.2022 firm M/s S.K. Enterprises, further, the address and registration no. (if applicable) of the defendant were not mentioned. However, the name of sole proprietor of the defendant firm is "Sh. Shiv Kumar Baweja".
24. The court is opinion that a Delivery Challan is a formal docu- ment that is created when goods are being transported from one place to another which may not result in sales. Further, Delivery challan shows that the customer has acknowledged the receipt of goods, but does not show their legal responsibil- ities or ownership. On the other hand, Invoice is the legal proof of the ownership of goods/service with all the risks, lia- bilities it carries along with it, it shows the actual value of the goods. The liability of the defendant can be assessed on the basis of the invoices as opposed to delivery challans. Delivery Challans can only lead an inference that there were transac- tions between the parties but cannot be substantial proof of the liability sought to be affixed upon the defendant.
25. The court is unable to understand as to how the goods were delivered at the address of the defendant if address was not mentioned in the delivery challans. Only vehicle number was mentioned on the delivery challans but the address of the de- fendant or consignee was not mentioned. Further, the plaintiff had failed to produce the tax invoice, sales tax returns, ledger account statement and records and accounts as prescribed un- CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 14 of 16 Dated: 30.09.2022 der Section 48 of the DVAT Act read with Rule 42 of the DVAT Rules. Further, the plaintiff being the sole proprietor had failed to produce the financials Income Tax Returns spec- ifying profit loss statement or the balance sheet (if applicable) which can give a true and fair view of the state of its affairs as at the end of financial year. The plaintiff did not furnish the relevant documents for the material time which is statutory obligation under the provisions of the Sales Tax Act to sub- stantiate that the actual services were provided to the defen- dant Therefore, the plaintiff had even failed the test of gov- erning statutory provisions. Further, reference of criminal trial under the provisions of the 138 NI Act and cheques which were dishonored without cogent evidence in support before this court shall not create liability on the defendant.
26. It is well settled legal position is that initial onus is always upon the plaintiff to prove the fact and if he discharges that onus and makes out a case which entitles him to a relief, then onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In this case nothing has been discharged by the plaintiff. The plaintiff has not proved by adducing cogent evidence on record that the plaintiff had supplied the printing services to the defendant firm and thereafter payment was not made. The elementary rule is Section 101 which is inflexible. In terms of CS No. 606/18 Mr. Brijesh Sharma Vs. M/s. S. K Enterprises Page: 15 of 16 Dated: 30.09.2022 Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
27. The plaintiff is not entitled to any relief and the suit of the plaintiff is dismissed.
File be consigned to record room.
Digitally signed SHIVALI by SHIVALI
BANSAL
BANSAL Date: 2022.09.30
17:56:57 +0530
Announced in open Shivali Bansal
Court on 30.09.2022 Additional District Judge-03
North District, Rohini Courts
Delhi
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