Delhi District Court
M/S. Velocity Optics Pvt.Ltdthrough ... vs Win Pharma Com And Ors on 7 May, 2026
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
COURT-02) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
PRESIDED BY: LALIT KUMAR:
CS (COMM) 874/22
M/s Velocity Optics Private Limited.
(Formerly Known as M/s Nabiq Optics Private Limited)
B-38, First Floor,
Okhla Industrial Area, Phase-1,
New Delhi-110020
(Through its Authorized Representative
Mr. Abhisekh Rai). ..... Plaintiff
Versus
1. M/s. Win Pharma Com
(Service to be effected through its Partners
i.e. defendant no.1 and 2).
2. Mrs. Harsharan Kaur
Partner M/s. Win Pharma Com
3. Mr. Navneet Singh Sethi
Partner M/s. Win Pharma Com
Addresses:
i). 66, Church Road, Jangpura,
Bhogal, New Delhi-110014
ii). 46, Church Road, Jangpura,
Bhogal, New Delhi-110014
iii). Khasra No. 247, Min 301,
Village Hirakunda,
New Delhi-110041 ..... Defendants
Date of Institution: 30.08.2022
Arguments concluded on:13.04.2026
Date of Judgment:07.05.2026
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 1 of 50
Digitally signed
lalit by lalit kumar
Date:
kumar 2026.05.07
17:56:56 +0530
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit filed on behalf of plaintiff for recovery of Rs. 13,77,263.50/- from the defendants.
FACTUAL MATRIX OF THE CASE:
Case of the plaintiff 2(a). Brief facts of the case are that plaintiff is a company incorporated under the Companies Act which is duly registered with the Registrar of Companies and deals in the eyewear and other related products which are popularly known by the brand name "Velocity". The plaintiff was originally incorporated as M/s Nabiq Optics Private Limited however, changed its name to M/s Velocity Optics Private Limited and Mr. Abhisekh Rai has been duly authorized to contest the present suit on behalf of plaintiff company.
(b). That the defendant No.1 is a partnership firm for which the GSTINNo.07AAAFW6912H1Z5 vide Registration Certificate has been issued by the Government of India on 24.09.2017 whereas, the defendant No.2 and 3 are the partners of defendant No.1 as per the partnership deed dated 10.07.2004 and as such, the defendant No.2 & 3 are running the business and actively managing, controlling the financial affairs and conducting the day to day affairs, Incharge of and responsible for the conduct and business of the defendant No. 1 therefore, the defendant No.2 & 3 CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 2 of 50
are liable for all the acts and deeds of the defendant No.1.
(c). That the defendant No.2 and 3 approached the plaintiff for the purpose of purchasing the optical products and after repeated assurances of timely payments, the plaintiff was induced and started supplying the optical products via courier agencies vide separate invoices duly raised in the name of defendant No. 1 which have been duly received and acknowledged by the defendants and were making the part payments for which the plaintiff in its regular course of business was maintaining the running regular ledger account in the name of defendant No.1 for the purpose of goods purchased and payments made by the defendants, however, the defendants were irregular in making the timely payments in respect of the goods purchased by the defendants.
(d). That the plaintiff made the first supply of the optical products to the defendants on 26.08.2019 vide Invoice No.GST-1588 for total sum of Rs.70,722l/- (Rupees Seventy Thousand Seven Hundred Twenty Two only) and thereafter, the defendants have regularly purchased and acknowledged the optical products vide separate invoices raised by the plaintiff during regular course of its business for which a current, open and mutual account was maintained in the name of defendant No.1 and as such, as and when goods were supplied, the invoice was raised for the total goods supplied and correspondingly, a debit entry was made in the account of defendants and as and when payment was received by the plaintiff from the defendants, CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 3 of 50
the same was credited by making a credit entry in the account. That the purchased optical products vide separate invoices have been duly checked, received and verified by the defendants and the plaintiff received the first payment of Rs.70,722l- from the defendants on 14.01.2020 for which the credit entry was made in the running ledger account which is maintained by the plaintiff during regular course of its business. And as such, as per the Ledger Account of the defendants which is duly maintained by the plaintiff in the regular course of its business, the last supply of the optical goods being effected on 12.03.2020 vide Invoice No.GST-4043 for sum of Rs.10,723/- and the last payment of Rs.1,28,630/- has been received on 18.02.2021 therefore, a sum of Rs.13,77,263.50 (Rupees Thirteen Lacs Seventy Seven Thousand Two Hundred Sixty Three and Fifty Paisa only) is still due and outstanding against the defendants as per the running Ledger Account of the defendants.
(e). That the defendants were irregular in making the payments to the plaintiff in respect of the goods purchased by them and therefore, the plaintiff regularly get in touch with the defendants via mobile and emails and requested the defendants on several occasions to pay the balance outstanding amount of Rs.13,77,263.50/- (Rupees Thirteen Lakhs Seventy Seven Thousand Two Hundred Sixty Three and Fifty Paisa only) but the defendants kept on deferring the same on one pretext or other therefore, the plaintiff has been deprived of the rightful use of the money due to the acts of the defendants. Thereafter, plaintiff got CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 4 of 50issued legal notice dated 04.09.2021 to all the defendants through speed post calling upon the defendants to pay the balance outstanding amount of Rs.13,77,263.50/- (Rupees Thirteen Lacs Seventy Seven Thousand Two Hundred Sixty Three and Fifty Paisa only), however, the same was returned with remarks "refused to receive". In these circumstances, the plaintiff company has been left with no other remedy except to file the present suit against the defendants.
Case of the Defendant 3 (a). Written Statement has been filed on behalf of defendant. It is submitted by Ld. Counsel for defendant that Mr. Vikhil Marwah, Sales Head in the plaintiff company under the instruction, control and command of the Director Mr. Samir Ahmed approached the partner Mr. Navneet Singh Sethi of Defendant Company in August, 2019 and orally appointed the Defendant Company as "Distributor"for supply of the Optical products of the Plaintiff Company and that Mr. Vikhil Marwah, the Sales Head of the Plaintiff Company orally discussed the whole terms and conditions and promised to execute and sign the detailed agreement on later date.
(b). That the terms and conditions discussed by Mr. Vikhil Marwah, Sales head of the Plaintiff Company with Defendant No.3 are as under:
i). That the Defendant Partnership Firm appointed as Distributor for Delhi NCT Areas.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 5 of 50ii). That executive of the plaintiff company would book the orders from various clients/outlets in Delhi NCT Areas. That Defendants job is to supply those goods to those clients/outlets as suggested by the Plaintiff Company's executives.
iii). That the agents of the Plaintiff Company to send those products or orders which would be booked by the executives of the plaintiff company to the respective clients or outlets.
iv). That the executives of the Plaintiff Company are responsible to help the Defendants in collecting the payments of the products sold to the clients/outlets as suggested by the executives of the plaintiff company. That the procurement of the orders from the respective client/outlets and to collect the payments from said clients/outlets are the responsibility of the plaintiff company.
(c). That Plaintiff Company started their supply of Optical Products only based on the aforesaid terms and conditions. That Defendants denied to receive all goods as alleged in the invoice. Most of the invoices and goods mentioned are false and fabricated. That the first optical products were supplied on 26.08.2019 by the Plaintiff Company for order already booked by the executives of the Plaintiff company. That the executives of the Plaintiff company collected the payment from the said respective client/outlets and payment handed over to the Defendant Firm and the invoice payment of Rs.70,722/- has been paid to the Plaintiff Company on 14.01.2020. Thereafter, the executives of the plaintiff company in the year 2021 collected CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 6 of 50some amount from the market which got outstanding for quite long time and handed it over to the Defendant firm and immediately an amount of Rs.1,28,630/- paid to the plaintiff company on 18.02.2021.
(d). That the invoice and courier receipts filed by the plaintiff are false and fabricated and plaintiff has filed the manipulative invoices. That the business relations between plaintiff and defendants only lasted for one and half months for the reasons set out herein under:
a) That the executives of the plaintiff company miserably failed to collect the outstanding amounts from the market/respective clients.
b) That the Plaintiff Company failed to sign the agreement on the terms and conditions as discussed with Mr. Vikhil Marwah, Sales Head of the Plaintiff Company in August, 2019.
It was also came to knowledge of the Defendant Company that Plaintiff Company has appointed another "Distributor" on the similar terms and conditions for the same Delhi NCR Area. That after one and half months, Defendant firm refused to do any business transaction with the Plaintiff Firm.
(e). That the invoices filed by the plaintiff alongwith the plaint bears no signature or stamp as a proof of accepting the rates mentioned in the invoices. That on several occasions, the inflated invoices had been disputed orally to Mr. Vikhil Marwah, Sales Head of the Plaintiff Company at the relevant time and every time it was assured by Mr. Vikhil Marwah, the Sales Head of the CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 7 of 50plaintiff Company that collection of the amount from the clients outlets would be prime obligation of Plaintiff's Company executives as orally and mutually agreed at the time of formal talk in the month of August, 2019.
(f). That Mr. Vikhil Marwah, the Sales Head of the Company also promised to offer schemes or credit notes to the client in lieu of the inflated price charged in each and every invoice. That the plaintiff company failed to offer any kind of scheme or credit note to the client/outlets and in view thereof, the high inflated rates of optical items which were sold as per invoice got no response from the market or business community and the executives of the Plaintiff Company failed to collect the outstanding from the market. It is submitted that collection of the outstanding amount from the clients/outlets were the prime obligation of the Plaintiff Company as every client/outlets had been known and identified by the Plaintiff and not by the Defendants.
Defendant has denied all the parawise averments in the plaint.
4. Replication to the WS of defendant has been filed on behalf of plaintiff, reiterating the submissions made in the plaint.
5. The present suit was instituted on 30.08.2022 and defendants were ordered to be served on the same date by Ld. Predecessor of this court. Defendants have been duly served and CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 8 of 50on the next date of hearing, Ld. counsel for defendants had appeared and file memo of appearance. He was directed to file vakalatnama as well as WS on behalf of defendants within stipulated period. However, the same has not been filed within stipulated period and thereafter, an application under order VIII Rule 1 CPC has been moved on behalf of defendants seeking condonation of delay in filing the WS. The said application has been allowed subject to cost of Rs. 5,000/- and WS filed on behalf of defendants has been taken on record and following issues were framed by Ld. Predecessor of this court.
ISSUES:
1. Whether the suit of the plaintiff is not maintainable as per the Mandate of Commercial Courts Act, 2015? OPD
2. Whether the dispute in question in the present case is not covered u/s 2 (1) (c) of Commercial Courts Act, 2015? OPD
3. Whether there is no written agreement between the parties in the present transaction in question? OPD
4. Whether the plaintiff is entitled for a decree of sum of Rs. 13,77,263/- in favour of plaintiff and against the defendant? OPP
5. Whether the plaintiff is entitled for any interest on the decretal amount and pendente lite and in future, if yes, then at what rate? OPP
6. Whether the plaintiff is also entitled to cost of the suit? OPP
7. Relief.
EVIDENCE Evidence of Plaintiff's Witnesses 6 (a). The matter then was kept for evidence. In order to prove the case plaintiff has examined Sh. Arvind Kumar Singh as PW-1 who tendered his evidence by way of affidavit Ex. PW1/A on similar lines as that of plaint. He also relied upon following CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 9 of 50documents:
1. Extract of Minutes of Meeting dated 29.06.2022 as Ex.PW1/1.
2. Extract of Minutes of Meeting dated 26.09.2023 as Ex.PW1/2.
3. Copy of Certificate of Incorporation as Ex.PW1/3.
4. Copy of Certificate of Incorporation of Plaintiff company pursuant to change of name as Ex.PW1/4.
5. Registration Certificate of Defendant No.1 as Ex.PW1/5.
6. Detail of Place of Business of Defendant with GST Registration Certificate as Ex.PW1/6 (colly).
7. Partnership Deed as Ex.PW1/8.
8. PAN Card of Defendant No. 1 as Ex.PW1/9.
9. PAN Card of Defendant No.2 as Ex.PW1/10.
10. PAN Card of Defendant No.3 as Ex.PW1/11.
11. Invoice GST No. 1588 dated 26.08.2019 as Ex.PW1/12.
12. Courier Receipt dated 26.08.2019 as Ex.PW1/13.
13. Invoice GST No.1604 dated 27.08.2019 as Ex.PW1/14.
14. E-way Bill No. 721089287204 dated 27.08.2019 as Ex.PW1/15.
15. Courier Receipt dated 27.08.2019 as Ex.PW1/16.
16. Invoice GST No. 1609 dated 28.08.2019 as Ex.PW1/17.
17. E-way Bill No. 761089492459 dated 28.08.2019 as Ex.PW1/18.
18. Courier Receipt dated 28.08.2019 as Ex.PW1/19.
19. Invoice GST No. 1715 dated 04.09.2019 as Ex.PW1/20.
20. E-way Bill No.741090789018 dated 04.09.2019 as Ex.PW1/21.
21. Courier Receipt dated 05.08.2019 as Ex.PW1/22. 22 Invoice GST No.1780 dated 11.09.2019 as Ex.PW1/23.
23. Courier Receipt dated 11,09.2019 as Ex.PW1/24.
24. Invoice GST No. 1868 dated 19.09.2019 as Ex.PW1/25.
25. Courier Receipt dated 19,09.2019 as Ex.PW1/26.
26. Invoice GST No. 1883 dated 21.09.2019 as Ex.PW1/27.
27. Courier Receipt dated 21.09.2019 as Ex.PW1/28.
28. Invoice GST No. 1902 dated 23.09.2019 as Ex.PW1/29.
29. Courier Receipt dated 23,09.2019 as Ex.PW1/30.
30. Invoice GST No. 1914 dated 25.09.2019 as Ex.PW1/31.
31. E-way Bill 25.09.2019 No. 731094553739 dated 25.09.2019 as Ex.PW1/32.
32. Courier Receipt dated 25.09.2019 as Ex.PW1/33.
33. Invoice GST No.1988 dated 04.10.2019 as Ex.PW1/34.
34. Courier Receipt dated 04.10.2019 as Ex.PW1/35.
35. Copy of invoice GST No. 2021 dated 05.10.2019 as Mark-A.
36. E-way Bill 05.10.2019 No.721096586855 dated 05.10.2019 as Ex.PW1/37.
37. Courier Receipt dated 06.10.2019 as Ex.PW1/38.
38. Invoice GST No.2035 dated 09.10.2019 as Ex.PW1/39.
39. Copy of Invoice GST No.2066 dated 10.10.2019 as Mark B.
40. Courier Receipt dated 10.10.2019 as Ex.PW1/41.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 10 of 5041. Copy of Invoice GST No.2076 dated 11.10.2019 as Mark C.
42. E-way Bill No.711097618240 dated 11.10.2019 as Ex.PW1/43
43. Courier Receipt dated 11.10.2019 as Ex.PW1/44.
44. Copy of Invoice GST No.2110 dated 12.10.2019 as Mark D.
45. Courier Receipt dated 12.10.2019 as Ex.PW1/46.
46. Invoice GST No.2117 dated 15.10.2019 as Ex.PW1/47.
47. Courier Receipt dated 15.10.2019 as Ex.PW1/48.
48. Invoice GST No.2126 dated 16.10.2019 as Ex.PW1/49.
49. Courier Receipt dated 16.10.2019 as Ex.PW1/50.
50. Invoice GST No.2145 dated 18.10.2019 as Ex.PW1/51.
51. Courier Receipt No. 114880 as Ex. PW1/52.
52. Invoice GST No.2178 dated 21.10.2019 as Ex. PW1/53.
53. Invoice GST No.2195 dated 24.10.2019 as Ex. PW1/54.
54. Invoice GST No.2202 dated 25.10.2019 as Ex.PW1/55.
55. Courier Receipt dated 25.10.2019 as Ex.PW1/56.
56. Invoice GST No.2225 dated 30.10.2019 as Ex.PW1/57.
57. E-way Bill No.731100835659 dated 30.10.2019 as Ex. PW1/58.
58. Invoice GST No.2240 dated 31.10.2019 as Ex.PW1/59.
59. Invoice GST No.2249 dated 01.11.2019 as Ex.PW1/60.
60. Invoice GST No.2307 dated 07.11.2019 as Ex.PW1/61.
61. Invoice GST No.2318 dated 09.11.2019 as Ex.PW1/62.
62. Invoice GST No.2348 dated 14.11.2019 as Ex.PW1/63.
63. E-way Bill No. 761103438157 dated 14.11.2019 as Ex.PW1/64.
64. Invoice GST No.2365 dated 16.11.2019 as Ex.PW1/65.
65. Copy of Invoice GST No.2503 dated 27.11.2019 as Mark E.
66. Invoice GST No.2514 dated 28.11.2019 as Ex.PW1/67.
67. E-way Bill No.751105933334 dated 29.11.2019 as Ex.PW1/68.
68. Invoice GST No.2540 dated 30.11.2019 as Ex. PW1/69.
69. E-way Bill No.721106421813 dated 30.11.2019 as Ex.PW1/70.
70. Invoice GST No.2622 dated 09.12.2019 as Ex.PW1/71.
71. Courier Receipt dated 10.12.2019 as Ex.PW1/72.
72. Invoice GST No.2629 dated 10.12.2019 as Ex. PW1/73.
73. E-way Bill No. 731108035037 dated 10.12.2019 as Ex.PW1/74.
74. Courier Receipt dated 10.12.2019 as Ex.PW1/75.
75. Invoice GST No.2762 dated 16.12.2019 as Ex.PW1/76.
76. Courier Receipt dated 16.12.2019 as Ex.PW1/77.
77. Invoice GST No.2973 dated 24.12.2019 as Ex.PW1/78.
78. Invoice GST No.2989 dated 26.12.2019 as Ex. PW1/79.
79. E-way Bill No.751111247964 dated 28.12.2019 as Ex.PW1/80.
80. Courier Receipt dated 28.12.2019 as Ex.PW1/81.
81. Invoice GST No.2997 dated 27.12.2019 as Ex.PW1/82.
82. Invoice GST No.3091 dated 06.01.2020 as Ex. PW1/83.
83. Courier Receipt dated 06.01.2020 as Ex.PW1/84.
84. Invoice GST No.3149 dated 07.01.2020 as Ex. PW1/85.
85. Courier Receipt dated 08.01.2020 as Ex. PW1/86.
86. Invoice GST No.3151 dated 07.01.2020 as Ex.PW1/87.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 11 of 5087. Invoice GST No.3184 dated 10.01.2020 as Ex.PW1/88.
88. E-way Bill No.721113486409 dated 10.01.2020 as Ex.PW1/89.
89. Courier Receipt dated 10.01.2020 as Ex.PW1/90.
90. Invoice GST No.3210 dated 13.01.2020 as Ex.PW1/91.
91. E-way Bill No. 731113910237 dated 13.01.2020 as Ex.PW1/92.
92. Courier Receipt dated 13.01.2020 as Ex.PW1/93.
93. Invoice GST No.3216 dated 14.01.2020 as Ex.PW1/94.
94. E-way Bill 14.01.2020 No. 771114089116 dated 14.01.2020 as Ex.PW1/95.
95. Courier Receipt dated 14.01.2020 as Ex.PW1/96.
96. Invoice GST No.3231 dated 16.01.2020 as Ex.PW1/97.
97. E-way Bill No.791114452707 16.01.2020 as Ex.PW1/98.
98. Courier Receipt dated 16.01.2020 as Ex.PW1/99.
99. Invoice GST No.3255 dated 18.01.2020 as Ex.PW1/100.
100. Courier Receipt dated 18.01.2020 as Ex.PW1/101.
101. Invoice GST No.3258 dated 18.01.2020 as Ex.PW1/102.
102. Courier Receipt dated 21.01.2020 as Ex.PW1/103.
103. Invoice GST No.3293 dated 24.01.2020 as Ex.PW1/104.
104. Courier Receipt dated 27.01.2020 as Ex.PW1/105.
105. Invoice GST No.3308 dated 27.01.2020 as Ex.PW1/106.
106. Invoice GST No.3329 dated 29.01.2020 as Ex.PW1/107.
107. Invoice GST No.3422 dated 07.02.2020 as Ex.PW1/108.
108. E-way Bill No. 781118367615 dated 07.02.2020 as Ex.PW1/109.
109. Courier Receipt dated 07.02.2020 as Ex.PW1/110.
110. Invoice GST No.3608 dated 12.02.2020 as Ex.PW1/111.
111. E-way Bill No.711119195197 dated 12.02.2020 as Ex.PW1/112.
112. Courier Receipt dated 14.02.2020 as Ex.PW1/113.
113. Invoice GST No.3772 dated 22.02.2020 as Ex.PW1/114.
114. Invoice GST No.3798 dated 25.02.2020 as Ex.PW1/115.
115. E-way Bill No. 731121688540 dated 25.02.2020 as Ex.PW1/116.
116. Courier Receipt dated 25.02.2020 as Ex.PW1/117.
117. Invoice GST No.3828 dated 26.02.2020 as Ex.PW1/118.
118. Courier Receipt dated 27.02.2020 as Ex.PW1/119.
119. Invoice GST No.4043 dated 12.03.2020 as Ex.PW1/120.
120. Courier Receipt dated 12.03.2020 as Ex.PW1/121.
121. Ledger Account from 01.04.2019 to 16.08.2022 of Plaintiff company as Ex.PW1/122 (colly).
122. Legal Demand Notice dated 04.09.2021 as Ex.PW1/123 (colly).
123. Postal Receipt dated 04.09.2021 as Ex.PW1/124 (colly).
124. Return Envelope with mark Refused to receive' dated 04.09.2021 as Ex.PW1/125.
125. Return Envelope with mark 'Refused to receive' dated 04.09.2021 as Ex.PW1/126.
126. Return Envelope with mark 'Refused to receive' dated 04.09.2021 as Ex.PW1/127.
127. Copy of Account Statement of Plaintiff sent through E-mail to CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 12 of 50defendant as Ex.PW1/128 (colly).
128. Non-Starter Report dated 03.01.2022 issued by DLSA, Saket Courts, New Delhi as Ex.PW1/129.
129. Two Certificates u/s 65-B of Indian Evidence Act as Ex. PW1/130 (colly).
(b). The said witness was cross examined by Ld. Counsel for defendant. His cross examination is reproduced as under:
"I am working in the plaintiff company from April 2023 as a Manager (Accounts). Earlier, the authorized representative of the company was Mr. Abhishek Rai who has filed the present suit vide the board resolution. The date on the board resolution (Ex. PW1/1) issued after the board meeting of the company is dated 29.06.2022. I have not filed on record the agenda and minutes of meeting on record. The date on the board resolution (Ex. PW1/2) issued after the board meeting of the company is dated 26.09.2023. I have not filed on record the agenda and minutes of meeting on record. It is correct that the board resolution is issued after the meetings of the board members in this regard. I am not aware about the board meetings held for the resolution of dated 29.06.2022 but I am aware about the board meeting held for the resolution of dated 26.09.2023. I may produce the records pertaining to the board meeting held on 29.06.2022 and 26.09.2023. It is correct that the earlier AR Mr. Abhishek Rai has worked with me. He has left the office of the plaintiff company in the month of September, 2023 but I do not recollect the exact date of September. I do not have personal knowledge that defendant no. 2 and 3 approached the plaintiff for the purpose of purchasing the optical products. I do not know if any formal agreement has taken place between the plaintiff and the defendant. Que. Kindly show me any document by which the defendants have placed orders for purchasing the optical products from the plaintiff company?
Ans. I have not placed any document. (Vol. In case of local venders the orders are taken on telephone). I do not know whether in this case also the order has been taken on telephone. It is wrong to suggest that I am deposing false on account of order placed by the defendant over telephone.
At this stage, documents Ex. PW1/12, Ex PW1/14, Ex. PW1/17 and Ex. PW1/20 (all invoices) are shown to the witness. It is correct that these invoices have no signatures of the defendant. (Vol. The goods have been sent through courier and the courier person has taken the signature of defendant for delivery of goods and I have placed on record the receipt of courier, showing the delivery of goods to the defendant). Ex. PW1/12, Ex PW1/14, Ex. PW1/17 and Ex. PW1/20 (all invoices) are the office copies. At this stage, Ex. PW1/13, Ex. PW1/16, Ex. PW1/19 and Ex. PW1/22 (all the other courier receipts for the respective invoices abovementioned) shown to the witness. It is correct that the complete address of the defendant is not mentioned in these receipts and the address of the defendant is mentioned as Win Pharma Bhogal, New Delhi or as Jangpura. It is correct that on CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 13 of 50
the receipts there is no signature of the defendant as it is a carbon copy of the booking of the goods.
It is wrong to suggest that the goods mentioned in invoices Ex. PW1/12, Ex PW1/14, Ex. PW1/17 and Ex. PW1/20 have not been received by the defendant. It is correct that I have not placed on record any document showing the delivery of goods to the defendant. At this stage, witness has shown Ex. PW1/122 (computerized ledger account). I have not prepared this account. I have no personal knowledge with regard to Ex. PW1/122. The plaintiff company has shown the balance outstanding amount as shown in the ledger account Ex. PW1/122 in the balance sheet which filed in Income Tax Return. It is correct that the outstanding amount has been shown in the Income Tax Return of the plaintiff company as per my knowledge. This return has been filed in the financial year 2020-2021. I was not working at that time in the plaintiff company.
It is wrong to suggest that the ledger account (Ex. PW1/122) is forged and fabricated. It is not in my personal knowledge that Mr. Vikhil Marwa was working as sales head with the plaintiff company. It is also not in my knowledge that Mr. Vikhil Marwa had ever discussed the present matter with the defendant. The contents of Para A.1 of the preliminary submission of the replication is as per the knowledge given to me by the plaintiff company. This fact might have been told to me by Sh. Varun Ji and otherwise also when the sales officials do talk about the matters, I came to know these facts. It is correct that there is no documentary evidence for the fact that Sh. Varun has told me about the contents of Para A.1 of the preliminary submission of the replication. It is wrong to suggest that the averment made by me Para A.1 of the preliminary submission of the replication are based on hearsay and not on any documentary evidence. It is correct that we had supplied goods to courier through the other parties as well in the same manner as we have supplied goods to the defendant after taking the order over telephone. It is correct that the goods mentioned in the invoices led upon by me have also been delivered to the other customers as per their orders. It is wrong to suggest that the goods mentioned in mentioned in aforesaid invoices has not been supplied to the defendant but they have been supplied to the other customers known to the plaintiff company and a false and fabricated bill raised against the defendant.
At this stage, Ld. Counsel for the defendant wanted to confront the witness with copy of an e-mail dated 08.01.2024, 15.05.2023 written by Wasim Khan to [email protected]. Ld. Counsel for the plaintiff has objected to confronting this document to the witness on the ground that this document has not been filed alongwith the written statement and also is not supported by the certificate u/s 65B of the Indian Evidence Act, 1870 (objections on the ground of mode and manner). Objections sustained. I have not brought the agenda and minutes of meeting pertaining to Board Resolution dated 29.06.2022 and 26.09.2023. At this stage, witness has been shown email dated 26.04.2023 and 15.05.2023 alongwith the attached excel sheet and certificate u/s 65B of Indian Evidence Act.
It is correct that an email has been sent email from "Win [email protected] to [email protected]". It is also CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 14 of 50
correct that one file in the name of velocity followup file has also been attached to the email dated 26.04.2023.
Yes, it is correct that Mr. Wasim Khan was working as a sales person in the plaintill company. I am not aware his tenure of work. He was working with the plaintiff company till April, 2024. I have no personal knowledge with regard to the excel sheet attached with the email dated 26.04.2023. I have no personal knowledge with regard to the name of the shops/vendors mentioned in the excel sheet shown me today. These documents are now marked as Ex. PW1/DI (colly-06 pages including the certificate u/s 65B of the Indian Evidence Act), It is wrong to suggest that goods shown in the invoices placed on record were not supplied to the defendant and were directly supplied to the different shops/vendors shown in Ex.PWI/D1 (colly-06 pages including the certificate u/s 65B3 of the Indian Evidence Act). (Vol. I have joined the services of the plaintiff company in April, 2023 and at the time of occurrence of the aforesaid events of supplying the goods I was not in the office and therefore, I have no personal knowledge regarding that). I am also not aware that to whom these information regarding supply of goods have been given as at that point of time I was not with the plaintiff company. It is wrong to suggest that recoveries of outstanding amount were not made from the name and address of the shops/vendors mentioned in Ex.PW1/D1. These facts are not in my knowledge as I have joined the services of the plaintiff company in April, 2023. I have joined on 01.04.2023.
Since the emails are of the date 26.04.2023 and 15.05.2023 sent by Wasim Khan and facts of these emails are not in my knowledge. It is wrong to suggest that the suit for recovery of Rs. 1377263.50/- has been filed for suit. It is wrong to suggest that I have deposed falsely".
7 (a). Plaintiff has examined Sh. Shammi, MTS as Registrar of Companies, NCT of Delhi and Haryana as PW-2 who has brought the summoned record which are mentioned below:
1. Certificate of Incorporation dated 12.02.2018 of Nabiq Optics Private Limited as Ex.PW2/1.
2. Certificate of change of name dated 12.10.2019 of Velocity Optics Private Limited as Ex.PW2/2.
(b). He was cross examined by Ld. Counsel for defendant. His cross examination is reproduced as under:
"I do not have any personal knowledge of the plaintiff company as well as the documents placed on record".
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 15 of 508 (a). Plaintiff has examined Sh. Shubham Kumar, Inspector at GST as PW-3 who has brought the summoned record which are mentioned below:
1. His authorization as Ex.PW3/A.
2. E-Way bills generated by Nabiq Optics Private Limited as Ex.PW3/1 (Colly).
3. E-Way bills generated by Velocity Optics Private Limited as Ex.PW3/2 (Colly).
(b). He was cross examined by Ld. Counsel for defendant. His cross examination is reproduced as under:
" This summoned record is a prinout taken from GST Portal. I do not have any personal knowledge of the plaintiff company as well as the documents placed on record".
9 (a). Thereafter, matter was kept for defence evidence. Defendant in order to prove his case has examined Sh. Lokesh Kumar as DW-1 who has tendered his evidence by way of affidavit Ex.DW1/A on similar lines as that of written statement. He has relied upon resolution dated 16.12.2022.
(b). The said witness was cross examined by Ld. Counsel for plaintiff. His cross examination is reproduced as under:
"I am 12th pass. I am working as manager with defendant no. 1 from 15-16 years. I was not working anywhere before joining this company. It is correct that defendant no. 1 is a partnership firm and defendant no. 2 and 3 are its partners. It is correct that Ex.PW1/5 is the registration certificate of defendant no. 1. It is correct that Ex.PW1/6 is the details of additional addresses of defendant no. 1 and for the GSTIN number of defendant no. 1. It is correct that name of partners of the defendant no. 1 are mentioned in Ex.PW1/7. It is correct that the Ex.PW1/8 is the partnership deed of defendant no. 1 firm bearing signature of defendant no. 2 and 3 at point A and B respectively. It is correct that Ex.PW1/9 is PAN pertaining to defendant no. 1, Ex.PW1/10 is PAN pertaining to defendant no. 2 and Ex.PW1/11 is PAN pertaining to defendant no. 3. It CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 16 of 50
is wrong to suggest that Ex.DW1/1 is a fabricated document. I and Navneet Singh (defendant no. 3) were in the meeting wherein the resolution dated 16.12.2022 was passed. No minutes of meeting is maintained by the defendant no. 1. It is correct that Ex.DW1/1 does not bear the signatures of defendant no. 2. It is wrong to suggest that I do not have any authority to sign, verify, file the Written Statement and to file evidence by way of affidavit before this Court. I do not have any idea whether the Ex.DW1/1 is extract of original resolution passed by the defendant no. 1. I do not remember whether defendant no. 2 was present in the meeting or not wherein the resolution dated 16.12.2022 was passed. It is wrong to suggest that no meeting dated 16.12.2022 was ever held wherein the resolution (Ex.DW1/1) was passed. I know Mr. Vikhil Marwah from the meeting held in the month of August/September, 2019 wherein defendant no. 3 was also present. It is correct that before this meeting, I do not know Mr. Vikhil Marwah. Mr. Vikhil Marwah represented himself to be Sales Head of plaintiff company. It is wrong to suggest that no such meeting has took place between Mr. Vikhil Marwah, defendant no. 3 and myself in the month of August/ September, 2019. I am not aware as to whether any meeting of defendant no. 2 and 3 with Mr. Sameer Ahmad, director of plaintiff no. 1 had took place between them to place the order to plaintiff company. It is wrong to suggest that the orders were placed by the defendants to purchase the optical products. It is wrong to suggest that defendant no.1 was appointed as distributor of plaintiff company. It is wrong to suggest that Mr. Vikhil Marwah orally discussed the terms and conditions and promised to executed and signed the detailed agreement. It is correct that no written agreement was executed and signed by plaintiff and defendant. It is correct that there is no document or evidence in respect of the meeting held in the month of August/September 2019 between myself, defendant no.3 and Mr. Vikhil Marwah. No any other person was present in the meeting held in the month of August-September 2019 except myself, defendant no.3 and Mr. Vikhil Marwah. Q: Can you explain the business module as mentioned in para no. 2.1 in your evidence affidavit?
A: The plaintiff company bring the orders from the outlets/shops and will supply the optical products directly to outlets/Shops till the signing of formal agreement and collect the payment by the executive of plaintiff's company from the outlet shops.
It is wrong to suggest that I have personally not involved during the initial talks with regard to the business module with the plaintiff company. It is wrong to suggest that Mr. Vikhil Marwah orally appointed the defendant no.1 as distributor for supply of the optical products of the plaintiff company. It is wrong to suggest that the defendant was placing the order directly to the plaintiff company for purchasing the optical goods by orally, telephonically and by emails. It is wrong to suggest that the meeting of defendant no.2 and 3 was took place with Mr. Sameer Ahmad, the Director of plaintiff company at the office of plaintiff company situated at Okhla CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 17 of 50
Industrial Area. It is wrong to suggest that Mr. Vikhil Marwah orally discussed the whole terms and conditions and promised to execute and signed the detailed agreement on later date. It is wrong to suggest that defendant's partnership was appointed for Delhi NCT areas by the plaintiff company. It is wrong to suggest that executive of the plaintiff booked the orders from various clients/outlets in Delhi NCT areas. It is wrong to suggest that the defendant's job is to supply to those goods to those clients/outlets as suggested by plaintiff's company executives. We have not supplied any optical goods to any client/outlet. It is wrong to suggest that the optical products were supplied by the plaintiff company to defendant as per the invoices duly exhibited as Ex.PW1/12 to Ex.PW1/120. It is wrong to suggest that the agents/executives of the plaintiff company sent those products/orders which have been booked by the executive of the plaintiff company to the respective clients/outlets directly. It is wrong to suggest that the first supply of the optical products was done on 26.08.2019 vide invoice duly exhibited as Ex.PW1/12 for total sum of Rs. 70,722/-. It is wrong to suggest that the last supply was on 12.03.2020 vide invoice duly exhibited as Ex.PW1/120. It is wrong to suggest that the executive of the plaintiff company are responsible to help the defendant in collecting the payments of the product sold to the clients/outlets as suggested by executive of the plaintiff company. It is wrong to suggest that the procurement of the orders from the respective clients/outlets and to collect the payments from said clients/outlets are the responsibility of the plaintiff company. It is wrong to suggest that the plaintiff company had started their supply of optical products to the shops/outlets directly which is based upon the oral discussion with Mr. Vikhil Marwah. It is wrong to suggest that the defendant are in knowledge that the plaintiff company is maintaining the ledger account in the name of defendant no.1 wherein as and when the goods were supplied, the debit entry was made and when the payment was received, the credit entry was made.
The ledger account (Ex.PW1/122) running into 04 pages has been shown to the witness to which he states that I do not have knowledge of this ledger account pertaining to the defendant no.1 has been maintained by the plaintiff company. I am also not aware as to ledger account Ex.PW1/122 was also been sent to the defendant on email ID's [email protected]. It is correct that email ID's [email protected] pertaining to the defendant no.1. I and other colleagues namely Mr. Mohit, Computer Executive of defendant no.1 and Mr. Vijay, Computer Executive of defendant no.1 is operating the email ID [email protected]. The defendant no. 3 saved the password of email ID [email protected] on system after its login and as such I and other employee of defendant no.1 can use the same as and when required. The attention of witness has been drawn at point 1 to point 9 of Ex.PW1/122 to which he states that I know some payments have been made by the defendant no.1 to plaintiff company but I am not sure as to all these payments which have been shown at point no.1 to point no.9 have been made by the defendant CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 18 of 50
no.1 to plaintiff company. (Vol. The CA can tell about the payments which have been made by the defendant no.1 to plaintiff company).
The witness has been shown Ex.PW1/128 running into 10 pages to which he states that I have not seen these emails and attachment of statement of account sent by the plaintiff company. I do not remember whether any other email were also sent by the plaintiff company to the defendant on email ID [email protected] reminding for the due payment. The witness has been shown Ex.PW1/D1 and drawn his attention to the email dated 26.04.2023 at point A which was sent by Win Pharma to plaintiff to which he states that I am not aware as who has sent this email. The defendant no.3 is also accessing the emails. (Vol. A meeting was took place at Defence Colony Market between Sameer Ahmad of plaintiff company and Mr. Navneet Singh i.e. defendant no.3 for discussing the outstanding details wherein I was also present in the meeting. In the said meeting it has been decided that the outstanding amount is lying pending in the market and in order to collect the same the plaintiff company and defendant firm collectively make efforts to collect the outstanding payments for which the name of the retailers has been prepared jointly). The witness has shown the attachment containing two pages of email dated 26.04.2023 of Ex.PW1/D1 and asked as follows:
Q: What is meant for bill number as shown in column no.2 of attachment?
A: I do not have any knowledge in respect of the column no.2. I do not remember as to whether bill Number as shown in column no.2 has been issued by defendant no.1 to the parties as shown/mentioned in column no.3 and their address mentioned in column no.4. It is wrong to suggest that I am in knowledge that a sum of Rs. 13,77,264/- is outstanding against the defendant as per the statement till 31.08.2021 which was sent via email dated 20.08.2021.
It is correct that defendant no.1 is filing Income Tax return and GST returns. I do not have any idea as to whether ledger account pertaining to the plaintiff company has been maintained by the defendant no.1 or not (Vol. The ledger may be maintained by the CA of defendant no.1 in its regular course of business).
It is wrong to suggest that the plaintiff company had supplied the optical products directly to the shops/outlets as per the oral discussion with Mr. Vikhil Marwah. It is wrong to suggest that defendant firm has not received the goods/items from the plaintiff company as mentioned in the invoices. It is wrong to suggest that defendant firm has never placed any order to the plaintiff company. I do not remember the name of outlet to whom the optical goods were supplied and the payments was received as mentioned in para 8 and 10 of my evidence by way of affidavit. It is wrong to suggest that the invoices filed on record by the plaintiff are not false and fabricated. It is wrong to suggest that none of the goods in terms of the invoices (Ex.PW1/12 to Ex.PW1/120) were ever received by the defendant firm. It is wrong to suggest that courier receipts filed with in the plaint are not false and fabricated. It is wrong CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 19 of 50
to suggest that plaintiff has filed manipulated invoices and courier receipt. It is correct that no written letter or email communication was sent to the plaintiff company in respect of the rates of optical products. The document Ex.PW3/2 and Ex.PW3/1 (Colly) are a matter of record. The attention of witness has been drawn to Para D of preliminary objection of the WS.
Q: Who objected about the invoices and in respect of how many invoices?
A: I do not remember the dates and invoices for which I objected to.
The witness has been shown legal notice Ex.PW1/123, Ex.PW1/125, Ex.PW1/126 and Ex.PW1/127 to which he states that the addresses mentioned on it pertains to the office of the defendants.
It is wrong to suggest that the defendants were having complete knowledge of issuance of notice dated 04.09.2021 managed to refused the same.
It is wrong to suggest that defendant no.1 is having any business relation with Verma Courier and it is further wrong to suggest that the defendant company engaged Verma Courier for the purpose of goods supplied by the defendant no.1 to the vendor of defendant no.1. It is wrong to suggest that defendant no.1 regularly purchasing the optical products from the plaintiff company which have been delivered to the defendants through courier. It is wrong to suggest that a sum of Rs.13,77,263.50/- is remained outstanding against the defendant since 18.02.2021. It is wrong to suggest that defendants are failed to pay the sum of Rs. 13,77,263.50/- to the plaintiff company despite multiple and various reminders by the plaintiff company. It is wrong to suggest that defendants are liable to make the payment of outstanding amount of Rs.13,77,263.50/- and the interest on it @ 18% per annum. I cannot produce the documents i.e. GST R-3B with 2A of the financial year 2019-20 and CA certified ledger account pertaining to the plaintiff company.
It is correct that the email ID [email protected] is official business email of defendant firm. It is also correct that all business communication relating to the defendant are received on this email ID. It is also correct that defendant firm never changed or blocked access to this email ID. I have no idea as to whether the defendant has sent any email to plaintiff disputing outstanding amount. The witness has been shown Ex.PW1/128 (10 pages). It is correct that no reply to the email shown as Ex.PW1/128 is not on record. It is wrong to suggest that the defendant firm has sent email to the plaintiff disputing outstanding amount and receipt of invoices. It is correct that some payment were made by the defendant firm to the plaintiff. It is correct that defendant firm has not filed its own ledger account or statement account showing payments to the plaintiff company and showing different outstanding balance amount. It is correct that the payments have been made by the defendant firm to the plaintiff company. It is correct that defendant firm never raised any invoice upon plaintiff for distribution services. It is correct that the defendant firm has CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 20 of 50
not filed any complaint before GST department alleging fake invoices. It is correct that defendant firm filed GST returns in ordinary course of business. It is wrong to suggest that defendant firm has deliberately not produced GST returns relating to plaintiff transaction, GST R-3B with 2A of financial year 2019-20 and CA certified ledger account. I have no idea as to whether the defendant firm gets benefits of the GST amount deposited by the plaintiff at the time of issuance of invoices. It is correct that defendant firm did not send any written reply to the legal notice dated 14.09.2021 (Ex.PW1/123).It is wrong to suggest that defendant firm have been regularly purchasing the optical products from the plaintiff vide separate invoices (Ex.PW1/12 to Ex.PW1/120). It is wrong to suggest that plaintiff company started supplying the optical products to the defendant firm 26.08.2019 to 12.03.2020 vide invoices Ex.PW1/12 to Ex.PW1/120. It is wrong to suggest that defendants are not liable to make the payment of outstanding amount as mentioned in the plaint. It is wrong to suggest that defendant is not liable to pay the interest on the outstanding amount. It is wrong to suggest that I am deposing falsely".
10. Final arguments heard. Record perused carefully. I have gone through the testimony of the plaintiff's witness and on the basis of documents, pleadings and testimony of witnesses, my issue wise findings are as follows:
ANALYSIS AND ISSUEWISE FINDINGS:
Issue No.1: Whether the suit of the plaintiff is not maintainable as per the Mandate of Commercial Courts Act, 2015? OPD Issue No.2: Whether the dispute in question in the present case is not covered u/s 2 (1) (c) of Commercial Courts Act, 2015? OPD
11. Since both the aforesaid issues concern the foundational jurisdiction of this Court under the Commercial Courts Act, 2015 and arise from a common set of pleadings, evidence and legal objections, they are being adjudicated together by way of this CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 21 of 50common determination.
The burden to establish both issues rested upon the defendants. The plaintiff company pleaded that it is engaged in the business of eyewear and optical products under the brand name "Velocity" and that defendant nos.2 and 3, being partners of defendant no.1 firm, approached the plaintiff in the year 2019 for purchase of optical products. It was pleaded that acting upon assurances of regular payment, the plaintiff commenced supply of goods through courier agencies under various invoices commencing from Invoice No.GST-1588 dated 26.08.2019 and continuing till Invoice No.GST-4043 dated 12.03.2020.
It was further pleaded that goods were supplied under separate invoices, a running ledger account was maintained in ordinary course of business, debit and credit entries were regularly reflected and after adjustment of payments, an amount of Rs.13,77,263.50/- remained due and payable by the defendants.
The plaintiff relied upon invoices Ex.PW1/12 to Ex.PW1/120, courier receipts Ex.PW1/13 onwards, e-way bills Ex.PW1/15 onwards, ledger account Ex.PW1/122, legal notice Ex.PW1/123, electronic communications Ex.PW1/128 and non- starter report under Section 12A of the Commercial Courts Act Ex.PW1/129.
The plaintiff contended that the dispute arose from ordinary mercantile transactions between traders and therefore squarely constituted a "commercial dispute" under Section 2(1)(c) of the Commercial Courts Act.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 22 of 50Per contra, the defendants disputed the very existence of any concluded commercial buyer-seller arrangement.
The defence pleaded was that one Mr. Vikhil Marwah, allegedly Sales Head of the plaintiff company, orally proposed appointment of defendant no.1 merely as a "distributor" for Delhi NCR region in August, 2019 and assured that a formal written agreement would later be executed.
The defendants specifically pleaded that plaintiff executives themselves procured orders from retailers/outlets, that goods were supplied directly to market retailers, recovery of payments from market outlets remained responsibility of plaintiff company, no written distributorship agreement was ever executed, the invoices relied upon by plaintiff were fabricated and manipulated, invoices did not bear signatures or acknowledgment of defendants and the alleged arrangement itself lasted hardly one and half months.
The defendants therefore raised a categorical objection that the dispute does not satisfy Section 2(1)(c) of the Commercial Courts Act and no concluded mercantile contract existed. Consequently, the present suit was not maintainable before the Commercial Court.
Section 2(1)(c) of the Commercial Courts Act 2015 defines "commercial dispute" as: "a dispute arising out of ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents..."
The provision contemplates a definite commercial relationship, enforceable mercantile obligations and legally CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 23 of 50cognizable commercial incidents.
The jurisdiction of the commercial court is therefore not plenary or general in nature. It is a special statutory jurisdiction founded entirely upon existence of a "commercial dispute" within the strict confines of section 2(1)(c) of commercial court act, 2015.
It is trite that where jurisdiction of a special court depends upon existence of foundational jurisdictional facts, such facts must be affirmatively established by the party invoking such jurisdiction. The Hon'ble Supreme Court of India in "Arun Kumar v. Union of India, (2007) 1 SCC 732", held that a jurisdictional fact is a fact which must exist before a court, tribunal or authority assumes jurisdiction over a particular matter. The court further observed that if the jurisdictional fact does not exist, the court or tribunal cannot act.
The aforesaid principle applies with full force to proceedings under the commercial courts Act. Unless the plaintiff establishes existence of a commercial dispute within section 2(1)
(c), the commercial court cannot assume jurisdiction merely because the claim is monetary or the parties are traders.
The Hon'ble Supreme Court in "Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP, (2020) 15 SCC 585", while interpreting Section 2(1)(c), held that the dispute should be a commercial dispute not only because it is connected with a commercial transaction but also because it answers the description contained in Section 2(1)(c). The Court further cautioned that the Commercial Courts Act cannot be invoked in every matter merely CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 24 of 50because one of the parties is engaged in trade or commerce.
The aforesaid dictum squarely governs the present controversy.
A circumstance of determinative significance is the admitted absence of any written commercial agreement between the parties. It may be seen that plaintiffs witness Mr. Arvind kumar singh, who has been examined as PW-1 has categorically admitted during cross-examination that he does not know, if any formal agreement has taken place between the plaintiff and the defendant. He further admitted that he has not placed any document by which the defendants have placed orders.
The defendants, in defence evidence, in order to prove case has examined Mr. Lokesh Kumar as DW-1 who has tendered his evidence by way of affidavit Ex.DW1/A. it may be seen that DW-1 consistently supported the defence pleaded in the written statement. DW-1 also deposed that no written agreement was ever executed between the parties. Thus, admittedly, no distributorship agreement, no dealership agreement, no purchase order, no written terms of supply, no acknowledgment of liability and no balance confirmation have been produced before the Court.
12. The plaintiff seeks to invoke commercial jurisdiction solely on the basis of self-generated invoices and unilateral ledger entries. Such material, in absence of foundational contractual documents, cannot ipso facto establish a commercial dispute within the meaning of Section 2(1)(c).
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 25 of 50Section 10 of the Contract Law Indian Contract Act, 1872 provides: "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object..."
The essential constituents of a valid contract are certainty of terms, consensus ad idem, acceptance of offer and enforceable obligations.
In "Rickmers Verwaltung GmbH v. Indian Oil Corporation Ltd., (1999) 1 SCC 1", the Hon'ble Supreme Court held that before a binding contract can arise, there must be consensus ad idem. Similarly, in "Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1", the Hon'ble Supreme Court observed that an agreement to enter into an agreement upon terms to be settled in future between the parties is not a concluded contract.
In the present matter, no definitive contractual terms were proved, no purchase orders were produced, no accepted terms of supply were established and plaintiff witness lacked personal knowledge regarding formation of contract.
The alleged arrangement therefore lacks the certainty and enforceability essential to constitute a concluded mercantile contract.
The plaintiff pleaded a buyer-seller relationship whereas defendants asserted existence of a proposed distributorship arrangement under which plaintiff executives themselves dealt with market retailers. Significantly, the plaintiff failed to establish identity of end purchasers, no delivery acknowledgment was CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 26 of 50proved, no retailer-wise reconciliation was produced and no evidence was produced showing defendants accepted goods as purchasers.
The electronic communications Ex.PW1/D1 confronted during cross-examination reflected market retailer details and pending recoveries from third parties. DW-1 specifically deposed that meetings were held concerning recovery of market dues lying with retailers/outlets.
This materially probabilizes the defence version that the defendants were not ultimate purchasers under a concluded commercial sale transaction.
It may be seen that PW-1 admitted that these invoices have no signatures of the defendant. He further admitted he has not placed on record any document showing delivery of goods to the defendant. The courier receipts Ex.PW1/13 onwards ,similarly did not bear signatures of defendants, even did not contain complete addresses and were merely carbon booking copies.
The Courts have consistently held that unilateral invoices do not by themselves establish liability unless acknowledgment, acceptance or delivery is independently proved. In "Harish Mansukhani v. Ashok Jain (2009) 109 DRJ (DB)" The Hon'ble Delhi High Court held that the mere raising of a bill and reflecting it in a statement of account is not good evidence without establishing the delivery of the goods under those bills. In "ITC Limited v. Mahavir Singla (2023) SCC OnLine Del 2665" it was clarified that unilateral invoices raised without acceptance or a CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 27 of 50corresponding contract do not constitute a written agreement unless supported by conduct indicating assent.
The invoices in the present case remain wholly uncorroborated.
Section 34 of Indian evidence act (now BSA) bars liability based solely on books of account. The plaintiff relied upon computerized ledger Ex.PW1/122. However PW-1 admitted that he has not prepared this account. I have no personal knowledge with regard to Ex.PW1/122.
Section 34 of the evidence act reads: "Entries in books of account, including those maintained in electronic form, regularly kept in the course of business, are relevant... but such statements shall not alone be sufficient evidence to charge any person with liability."In "CBI v. V.C. Shukla, 1998 Supp (1) SCC 410", the Hon'ble Supreme Court held that entries in books of account are only corroborative evidence and by themselves cannot fasten liability. Likewise, in "Chandradhar Goswami v. Gauhati Bank Ltd., AIR 1967 SC 1058", it was held that no person can be charged with liability merely on the basis of entries in books of account.
13. The present ledger lacks independent corroboration, it lacks acknowledgment and lacks supporting proof of delivery. Consequently, Ex.PW1/122 cannot establish existence of a commercial liability.
It may be seen that the case of the plaintiff also lacks, as CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 28 of 50material particulars are absent from the plaint and the requirement of order VI Rule 2 of CPC remains unsatisfied which mandates pleading of material facts constituting cause of action. The plaint conspicuously omits exact contractual terms agreed commercial structure, commission mechanism, acknowledgment procedure, territorial obligations and mode of acceptance.
Further, Order VII Rule 14 CPC obligates production of foundational contractual documents. No written agreement, email order, signed acknowledgment or balance confirmation has been produced.
The pleadings therefore suffer from absence of foundational commercial particulars. In "Mohinder Kumar Gandhi v. Praveen Kumar, RFA (COMM) 489/2025", wherein the Hon'ble high court reiterated that every dispute involving businessmen is not necessarily a commercial dispute, the courts must scrutinize existence of enforceable commercial obligations and commercial jurisdiction cannot be invoked merely on account of monetary claim.
The ratio applies with full vigour to the present matter where no written mercantile contract exists, invoices are disputed, delivery remains unproved, the plaintiff witness lacked personal knowledge and the nature of relationship itself remained uncertain.
It is pertinent to mention that compliance of pre-Mediation institution under section 12A of CCA, cannot cure absence of jurisdiction. The plaintiff relied upon non-starter report Ex.PW1/129.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 29 of 50However, compliance with Section 12A of the Commercial Courts Act cannot create jurisdiction where none exists.
The Hon'ble Supreme Court has repeatedly held that consent cannot confer jurisdiction and procedural compliance cannot validate proceedings inherently lacking jurisdiction. While the Supreme Court in "Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd. 2022 SCC OnLine SC 1028", made section 12A mandatory, this mandate applies only to "commercial disputes" as defined under Section 2(1)(c). A non-starter report simply proves that the procedural prerequisite for filing was attempted; it does not adjudicate whether the suit satisfies the legal definition of a commercial dispute.
The existence of a non-starter report therefore does not establish existence of a "commercial dispute".
14. From the cumulative appreciation of pleadings, documentary evidence, admissions in cross-examination, statutory framework and settled principles of law, the following conclusions can easily be drawn, which are as under:
1. No concluded mercantile contract stood proved between the parties.
2. No written commercial agreement existed therein.
3. Nature of transaction remained fundamentally uncertain.
4. Buyer-seller relationship remained unproved.
5. Invoices are unsigned and disputed.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 30 of 506. Delivery remained unproved.
7. Ledger account lacks legal corroboration.
8. Plaintiff failed to establish jurisdictional facts under Section 2(1)(c).
9. The dispute does not satisfy the statutory ingredients of a commercial dispute.
In view of the forgoing discussion, this court is therefore unable to hold that the present proceedings fall within the specialized jurisdiction contemplated under the Commercial Courts Act, 2015. Consequently, the present suit, as instituted before the Commercial Court, is held to be not maintainable under the mandate of the Commercial Courts Act, 2015.
Therefore, this Court holds that the plaintiff has failed to establish that the present dispute constitutes a "commercial dispute" within the meaning of Section 2(1)(c) of the Commercial Courts Act, 2015.
Accordingly, issue No.1 and 2 are decided in favour of the defendants and against the plaintiff.
Issue No.3: Whether there is no written agreement between the parties in the present transaction in question? OPD
15. The present issue goes to the very root of the alleged commercial relationship projected by the plaintiff and assumes considerable significance in view of the nature of the claim set up in the plaint. The defendants have consistently maintained that no written agreement governing the alleged business arrangement CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 31 of 50was ever executed between the parties and that the plaintiff seeks to enforce an alleged liability merely on the strength of unilateral invoices and self-generated ledger entries.
The issue, though apparently simple, in fact raises foundational questions concerning, existence of a concluded contract, certainty of commercial obligations, enforceability of alleged mercantile arrangements and evidentiary standards governing proof of contractual relationships.
The burden to prove the issue rested upon the defendants. However, once the defendants specifically denied execution of any written agreement and the plaintiff's own pleadings were found conspicuously silent regarding foundational contractual particulars, the evidentiary burden necessarily shifted upon the plaintiff to establish the existence of a concluded written arrangement.
The plaintiff pleaded that defendant nos.2 and 3 approached the plaintiff company in the year 2019 for purchase of optical products and that supplies were thereafter made through courier agencies under various invoices raised in the name of defendant no.1.
However, significantly, the plaint is entirely bereft of material particulars concerning execution of any written agreement, date of execution, terms and conditions of supply, pricing mechanism, territorial rights, mode of order placement, payment obligations, distributorship structure, duration of arrangement and acknowledgment procedure.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 32 of 50No distributorship agreement, dealership contract, memorandum of understanding, supply agreement, purchase arrangement or written correspondence recording finalized terms have been either pleaded or filed.
The omission is not merely procedural but strikes at the substantive foundation of the plaintiff's cause of action.
In commercial litigation involving repeated transactions allegedly extending from 26.08.2019 till 12.03.2020 and involving substantial monetary claims exceeding Rs.13 lakhs, the absence of foundational contractual documentation assumes decisive significance.
The defendants specifically pleaded that one Mr. Vikhil Marwah, stated to be Sales Head of the plaintiff company, orally discussed a proposed distributorship arrangement in August, 2019 and assured that a formal written agreement would subsequently be executed.
The defendants categorically pleaded that the arrangement remained purely oral and tentative, that plaintiff executives themselves procured orders from retailers, goods were directly supplied to market outlets, collection of payments was responsibility of plaintiff company and no written agreement was ever finalized or executed.
Thus, the defence concerning absence of written contract remained clear, categorical and consistent throughout the proceedings.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 33 of 5016. Having analysed the evidence and testimony of the witnesses, plaintiff's own witness admitted absence of contractual knowledge. The plaintiff examined PW-1 Mr. Arvind Kumar Singh,who during his cross-examination made admissions which go to the very heart of the controversy. PW-1 admitted that he does not know if any formal agreement has taken place between the plaintiff and the defendant. The witness further admitted that he has not placed any document by which the defendants have placed orders. PW-1 also admitted absence of personal knowledge regarding negotiations between parties, placement of orders by the defendants, formation of business arrangement and execution of contractual documentation.
The aforesaid admissions are of far-reaching evidentiary consequence. It may be seen that plaintiff's own witness neither proved execution of written agreement nor proved existence of written purchase orders and also not proved acceptance of contractual terms by defendants.
The evidentiary structure of the plaintiff's case thus stands fundamentally impaired by its own witness.
Defendant have also led their evidence, however, defence evidence remained materially unshaken DW-1 categorically deposed that no written agreement was ever executed, discussions between parties were merely oral, plaintiff proposed a distributorship arrangement but no formal contract was ever finalized.
Most significantly, DW-1 stated during cross-examination CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 34 of 50that no written agreement was executed and signed by plaintiff and defendant. No contrary document was confronted to the witness. No suggestion was put that any written agreement existed but had been deliberately withheld. The testimony of DW-1 therefore remained materially unshaken.
It is settle proposition of law that consensus ad-idem is foundational to enforceable contract.
Section 10 of Indian Contract Act, 1872 provides: "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object..."
The provision necessarily contemplates certainty of terms, mutuality of obligations and consensus ad idem. The Hon'ble Supreme Court of India in "Mayawanti's case (Supra)", authoritatively held that there can be no contract unless the parties thereto are ad idem. The Court further observed that an agreement to enter into an agreement in future is not a concluded contract.
Likewise, in "Rickmers Verwaltung GmbH's case (Supra)", the Hon'ble Supreme Court held that before a binding contract can arise, there must be consensus ad idem on all essential terms. Similarly, in "Kollipara Sriramulu v. T. Aswatha Narayana, AIR 1968 SC 1028", the Hon'ble Supreme Court observed that if the documents or correspondence disclose that essential terms are yet to be settled, there is no concluded contract.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 35 of 5017. In the present case no written terms exist, no finalized conditions of supply were proved and no evidence of consensus ad idem was produced. The alleged arrangement therefore lacks the certainty indispensable to a concluded written contract.
The plaintiff attempted to rely upon invoices Ex.PW1/12 to Ex.PW1/120. However, PW-1 admitted that these invoices have no signatures of the defendant. The invoices are thus merely unilateral documents generated by the plaintiff itself.
The Hon'ble Supreme Court in "State of Gujarat v. Ramanlal Keshavlal Soni, (1983) 2 SCC 33", held that unilateral documents lacking reciprocal acceptance cannot create binding contractual obligations. Similarly, in "Union of India v. Ibrahim Uddin, (2012) 8 SCC 148", the Hon'ble Supreme Court emphasized that documents not proved in accordance with law cannot be relied upon merely because they are exhibited.
The invoices do not bear signatures of the defendants, do not bear acknowledgment by the defendants and do not prove acceptance of contractual terms between the parties. Consequently, they cannot substitute a formally executed written agreement.
It is also settled law that written contract must be proved through primary documentary evidence.
Sections 91 and 92 of evidence act, (now BSA) embody the best evidence rule. The Hon'ble Supreme Court in "Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595", held that section 91 is founded on the best evidence rule that when parties have CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 36 of 50deliberately put their agreement into writing, it is conclusively presumed between themselves that they intended the writing to form full and final statement of their intentions.
The court further observed oral evidence cannot substitute documentary evidence where the law requires the document itself to be proved.
In the present case, the defendants specifically pleaded that a formal agreement was contemplated but never executed. The plaintiff failed to produce any written document governing rights and liabilities of the plaintiff and defendants, obligations of parties, payment structure, territorial arrangement and mechanism of supply. The complete absence of such documentation materially fortifies the defence case.
The plaintiff has also relied upon ledger account Ex.PW1/122.However PW-1 admitted that he has not prepared this account. I have no personal knowledge with regard to Ex.PW1/122.
Section 34 of evidence act (now BSA) expressly provides:
"Entries in books of account... shall not alone be sufficient evidence to charge any person with liability." In "Chandradhar Goswami's case (Supra)", the Hon'ble Supreme Court held that no person can be charged with liability merely on the basis of entries in books of account.
Likewise, in "CBI v. V.C. Shukla's case (Supra)", the Hon'ble Supreme Court reiterated that entries in books of account are merely corroborative evidence.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 37 of 50
The ledger therefore cannot establish existence of a written contractual arrangement.
18. From the cumulative appreciation of pleadings, admissions of PW-1, testimony of DW-1, absence of written contractual documents, absence of purchase orders, absence of acknowledgments and settled principles of contract law,the following conclusions emerge irresistibly:
1. No written agreement was ever executed between the parties.
2. The alleged arrangement remained oral, uncertain and indeterminate.
3. Essential contractual terms were never proved.
4. Plaintiff failed to establish consensus ad idem.
5. Unilateral invoices cannot substitute a written contract.
6. The defence has successfully discharged the burden cast upon it.
The entire claim of the plaintiff rests upon an uncertain and unstructured alleged arrangement unsupported by foundational contractual documentation.
Such a claim cannot be elevated into an enforceable written mercantile contract merely on the strength of unilateral commercial papers generated by one side. Accordingly, this Court unequivocally holds that no written agreement existed between the parties in respect of the transaction in question.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 38 of 50Therefore, Issue No.3 is decided in favour of the defendants and against the plaintiff.
Issue No.4: Whether the plaintiff is entitled for a decree of sum of Rs.13,77,263/- in favour of plaintiff and against the defendant? OPP
19. The onus to establish the present issue squarely rested upon the plaintiff in terms of sections 101 to 103 of evidence act (now BSA). The plaintiff was under a legal obligation to prove, by cogent, reliable and legally admissible evidence namely (i) existence of a concluded commercial transaction between the parties, (ii) placement of orders by the defendants, (iii) supply and delivery of goods to the defendants, (iv) acceptance of invoices and liability thereunder and (v) subsisting legally recoverable outstanding amount of Rs.13,77,263/-.
Unless the foundational facts constituting the cause of action stood affirmatively proved, no decree for recovery could lawfully follow.
The plaintiff pleaded that it is engaged in the business of eyewear and optical products under the brand name "Velocity" and had supplied goods to defendant No.1 firm from 26.08.2019 till 12.03.2020 through various tax invoices, e-way bills and courier receipts, while maintaining a running ledger account in the ordinary course of business. It was further pleaded that after adjustment of part-payments, an outstanding sum of Rs.13,77,263.50/- remained due and payable by the defendants.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 39 of 50The plaintiff relied upon invoices Ex.PW1/12 to Ex.PW1/120, courier receipts Ex.PW1/13 onwards, e-way bills Ex.PW1/15 onwards, ledger account Ex.PW1/122, legal notice Ex.PW1/123 and emails Ex.PW1/128.
20. Per contra, the defendants categorically denied the existence of a buyer-seller transaction as alleged by the plaintiff. The defence consistently taken in the Written Statement was that defendant No.1 had orally been proposed to be appointed merely as a "distributor" for Delhi NCR by one Mr. Vikhil Marwah, stated to be Sales Head of the plaintiff company, and that the plaintiff's own executives were responsible for procuring orders from retailers/outlets and collecting payments from such outlets. According to the defendants, the goods were allegedly supplied directly to third party outlets identified by the plaintiff and not to defendant No.1. The defendants further pleaded that the invoices relied upon by the plaintiff were unsigned, fabricated and manipulated; that no written distributorship agreement was ever executed; and that the plaintiff failed to prove actual delivery of goods to the defendants.
The defendants also specifically pleaded that the business relationship lasted merely for about one and a half months and that disputes arose regarding inflated invoices, non-issuance of promised credit notes and failure of the plaintiff's executives to recover market outstanding from retailers.
To prove its case, the plaintiff led evidence and examined CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 40 of 50Mr Arvind Kumar Singh as PW-1 who tendered his affidavit in evidence on similar lines as in the plaint, which is Ex.PW1/A and sought to prove the plaintiff's entire claim on the strength of company records. However, a careful scrutiny of his cross- examination reveals that the witness substantially discredited the plaintiff's own case on material particulars.
PW-1 categorically admitted in cross-examination that he joined the plaintiff company only in April 2023, that the transactions in question pertained to 2019-2020, he had no personal knowledge regarding placement of orders and that he was unaware whether any agreement existed between the parties. The witness specifically deposed that he does not have personal knowledge that defendant no.2 and 3 approached the plaintiff for the purpose of purchasing the optical products. PW-1 further deposed that he does not know if any formal agreement has taken place between the plaintiff and the defendant. These admissions are not minor inconsistencies but go to the very substratum of the plaintiff's case.
The entire affidavit Ex.PW1/A proceeds on assertions regarding negotiations, placement of orders, supply and acknowledgment of goods. Yet the witness admittedly possessed no firsthand knowledge thereof.
21. The law in this regard stands authoritatively settled by the Hon'ble Supreme Court, in "Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217" wherein it was held that CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 41 of 50a power-of-attorney holder cannot depose in place of the principal regarding transactions of which he lacks personal knowledge. If a principal avoids the witness box to escape cross-examination on personal matters, it may lead to an adverse inference against them.
Similarly, in "A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790" The Court expanded upon the principles in Janki Vashdeo Bhojwani, and it was held that an authorized representative may depose only regarding matters within his personal knowledge and cannot testify to facts exclusively within knowledge of another individual.
Thus, substantial portions of PW-1's testimony are clearly hearsay and incapable of constituting substantive proof of liability.
The plaintiff's pleaded case was that defendants placed repeated orders for optical products. However, when PW-1 was specifically confronted in cross-examination to produce any document evidencing placement of orders by defendants, he unequivocally admitted that he has not placed any document.
The witness further volunteered that local vendors generally place telephonic orders, but immediately admitted that he does not know whether in this case also the order has been taken on telephone.
Consequently, the plaintiff failed to produce any purchase order, any email communication, any WhatsApp communication, any written requisition, any acknowledgment by defendants or any correspondence evidencing consensus ad idem.
In a commercial recovery suit involving a claim exceeding CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 42 of 50Rs.13 lakhs, the complete absence of foundational transactional documents assumes grave significance.
Further, PW-1 admitted that invoices Ex.PW1/12, Ex.PW1/14, Ex.PW1/17 and Ex.PW1/20 did not bear signatures or stamp of defendants. The witness further admitted that he has not placed on record any document showing the delivery of goods to the defendant.
This admission is fatal to the plaintiff's claim. Invoices generated unilaterally by one party do not ipso facto establish delivery, acceptance or acknowledgment of debt. In "Chandradhar Goswami's case (Supra)", The Supreme Court held that no person can be charged with liability merely based on entries in books of account, even if kept in the regular course of business, without further evidence proving the actual transaction. Further in "Central Bank of India v. Ravindra (2002) 1 SCC 367" the court reiterated that entries in books of account or unilateral statements do not independently create liability unless corroborated by legally admissible evidence.
It is pertinent to mention that the plaintiff heavily relied upon ledger account Ex.PW1/122. However, PW-1 admitted that he had not prepared the ledger , that he had no personal knowledge thereof and that the ledger entries were based upon company records.
Section 34 of the of Indian evidence act (now BSA) expressly provides "Entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 43 of 50into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
Thus, even assuming Ex.PW1/122 to be admissible, it could not by itself fasten pecuniary liability upon defendants in absence of independent corroboration.
Notably no balance confirmation was produced, no acknowledgment under Section 18 of the Limitation Act was proved, no GST reconciliation was produced and no corresponding ledger from defendants was summoned.
22. The plaintiff attempted to rely upon courier receipts corresponding to invoices. However, PW-1 admitted that complete address of defendants was not mentioned, receipts merely reflected "Win Pharma Bhogal" or "Jangpura", no signatures of defendants appeared thereon and the receipts were merely carbon copies of booking slips.
No official from courier company was examined. No proof of delivery (POD) was filed. No consignee acknowledgment was produced. Therefore, at best, the documents prove dispatch from plaintiff's end; they do not establish receipt by defendants.
The distinction between "dispatch" and "delivery" cannot be obliterated in a commercial recovery action.
A material circumstance emerges from Ex.PW1/D1 consisting of emails dated 26.04.2023 and 15.05.2023 with attached Excel sheets containing names of retailers/vendors and outstanding market dues. PW-1 admitted receipt of such emails CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 44 of 50and further admitted that Mr. Wasim Khan was a salesperson of the plaintiff company.
The said documents probabilise the defence version that plaintiff officials themselves dealt directly with retailers , goods may have been supplied directly to market outlets and outstanding recoveries were being pursued from such outlets. This circumstance materially weakens the plaintiff's case of direct buyer-seller transactions with defendants.
In support the plaintiff also examined PW-2, who is a witness from registrar of companies and merely proved certificates of incorporation Ex.PW2/1 and Ex.PW2/2. In cross-examination, PW-2 admitted that he does not have any personal knowledge of the plaintiff company as well as the documents placed on record. Thus, PW-2 is merely a formal witness and his testimony does not advance the plaintiff's case regarding supply, delivery or liability.
Another witness of the plaintiff is PW-3 from GST department produced e-way bills Ex.PW3/1 and Ex.PW3/2. However, in cross-examination he admitted that summoned record is a printout taken from GST portal and he does not have any personal knowledge of the plaintiff company.
Therefore, it can be seen that E-way bills merely indicate generation of transportation entries under GST mechanism. They do not constitute conclusive proof of actual physical delivery, receipt by defendants or acceptance of goods.
Thereafter, in defence evidence, the defendants in order to prove case has examined Mr. Lokesh kumar as DW-1 who has CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 45 of 50tendered his evidence by way of affidavit Ex.DW1/A. It may be seen that DW-1 consistently supported the defence pleaded in the written statement.
Despite extensive cross-examination, the material defence version remained substantially unshaken, namely, the plaintiff officials dealt directly with retailers, no written agreement existed, invoices were disputed and that liability claimed by plaintiff was denied. Although DW-1 admitted that certain payments had been made by defendant firm to plaintiff company, such admissions do not automatically establish the entire outstanding amount claimed in the suit.
A commercial relationship may exist without the plaintiff proving the exact debt claimed.
The settled principle of law is that the plaintiff must succeed on the strength of its own evidence and not on weakness of defence. In "Union of India's case (Supra)", the Hon'ble supreme court held that burden of proof never shifts merely because the defence appears weak. Likewise, in "M. Siddiq's case (Supra)", it was reiterated that a plaintiff cannot derive advantage from lacunae in defence evidence.
A decree in a commercial suit cannot be granted merely on the basis of self-serving invoices and unilateral ledger entries unsupported by proof of delivery and acknowledgment. The Delhi High Court in "Mohinder Kumar Gandhi v. Praveen Kumar RFA(COMM) 489/2025", decided on October 8, 2025, reiterated that in commercial litigation, invoices and e-way bills alone, CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 46 of 50without signed delivery challans or transporters' receipts, did not prove delivery of goods. particularly recovery actions founded upon invoices and ledger accounts, the plaintiff must establish the transactional chain through cogent documentary evidence including acknowledgment, delivery proof and reliable business records.
The present case suffers from glaring deficiencies of absence of purchase orders from the defendant, absence of signed invoices by the defendant, absence of proof of delivery to the defendant, absence of acknowledgment of liability by the defendant, absence of balance confirmation from the side of the defendant, absence of GST reconciliation between plaintiff and defendant and absence of testimony from any person having firsthand knowledge of the transactions.
23. Upon cumulative appreciation of pleadings, documentary evidence, oral testimony and surrounding circumstances, this court arrives at the following conclusions:
Firstly, the plaintiff has failed to establish that the defendants had placed purchase orders for goods in question.
Secondly, the plaintiff has failed to prove actual delivery and receipt of goods by defendants.
Thirdly, the invoices relied upon are unilateral, unsigned and unacknowledged.
Fourthly, courier receipts relied upon by plaintiff do not constitute proof of delivery.
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.Page 47 of 50
Fifthly, ledger account Ex.PW1/122 is insufficient in law to independently fasten liability in view of Section 34 of the evidence act/ BSA.
Sixthly, PW-1 lacked personal knowledge of the material transactions and substantial parts of his testimony are hearsay.
Seventhly, PW-2 and PW-3 are merely formal witnesses. Eighthly, Ex.PW1/D1 materially probabilises the defence plea regarding direct dealings of plaintiff with market retailers.
Ninthly, the plaintiff has failed to prove its case on the touchstone of preponderance of probabilities.
In view of the foregoing discussion, this court is of the considered opinion that the plaintiff has miserably failed to discharge the burden cast upon it under Sections 101 to 103 of the Indian evidence act (now, BSA).
The evidence led by the plaintiff falls substantially short of the standard required in a commercial recovery action. Therefore, the plaintiff is held not entitled to recovery of Rs.13,77,263/- from the defendants.
Accordingly, issue No.4 is decided against the plaintiff.
Issue No.5: Whether the plaintiff is entitled for any interest on the decretal amount and pendente lite and in future, if yes, then at what rate?OPP Issue No.6: Whether the plaintiff is also entitled to cost of the suit? OPP Issue No. 7:Relief
24. The aforesaid issues are consequential in nature and arise CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 48 of 50for determination in light of the findings already returned by this Court on Issue Nos.1, 2, 3 and 4.
Issue No.5 pertains to the claim of interest, pendente lite and future interest, whereas Issue No.6 concerns entitlement to costs of the proceedings. Issue No.7 pertains to the ultimate relief.
Since all the aforesaid issues are intrinsically interconnected and dependent upon the plaintiff establishing a legally enforceable liability against the defendants, the same are being decided together.
The burden to prove Issues No.5 and 6 rested upon the plaintiff.
Since, the plaintiff has failed on all material issues. Therefore, in view of the findings returned on Issue Nos.1, 2, 3 and 4, this Court holds that the plaintiff has failed to establish maintainability of the suit under the Commercial Courts Act, existence of a concluded written contract, enforceable commercial liability against the defendants and entitlement to recovery of the suit amount. Consequently the plaintiff is not entitled to any interest, pendente lite or future interest, the plaintiff is not entitled to costs of the proceedings.
CONCLUSION:
25. In view of the above discussion, this court holds that the plaintiff is not entitled to recovery of the suit amount, pendente lite and future interest and costs of the suit. Accordingly, the suit CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
Page 49 of 50of the plaintiff stands dismissed.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
lalit Digitally signed
by lalit kumar
Date: 2026.05.07
kumar 17:56:38 +0530
Announced & dictated in the (LALIT KUMAR)
open Court on this District Judge
7th May, 2026 (Commercial Court-02)
South-East, Saket Courts, ND
07.05.2026
CS (COMM)-874/2022 M/s Velocity Optics Private Limited. Vs. M/s. Win Pharma Com & Ors.
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