Delhi District Court
M/S. Bharati Bhawan Publishers And ... vs Vijay Bansal on 8 May, 2024
DLCT010027202023
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) 01 : CENTRAL, TIS HAZARI COURTS,
DELHI
CS (Com.) No. 321/2023
M/s. Bharati Bhawan (Publishers & Distributors),
4271/3, Ansari Road,
Daryaganj, New Delhi - 110002.
Through its Manager and Constituted Attorney. ..... Plaintiff.
Versus
Sh. Vijay Bansal,
Proprietor of :
M/s. Ajanta Book Depot,
Near Maharaja Agrasen Girls
Sr. Secondary School,
Begu Road, Sirsa, Haryana - 125055. .... Defendant
Suit (Com.) No. 321/2023 Page No. 1 of 61
M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
Date of institution : 21.02.2023
Date of reserving Judgment : 05.04.2024
Date of decision : 08.05.2024
SUIT FOR RECOVERY OF RS. 4,88,404/ ALONG WITH PENDENTE
LITE AND FUTURE INTEREST.
JUDGMENT
1. Vide this Judgment, I shall decide the suit for recovery of Rs. 4,88,404/ along with pendente lite and future interest filed by the plaintiff against the defendant.
2. The brief facts as stated in the plaint are that the plaintiff is a partnership firm engaged in the business of publishing and distribution of books. Defendant is the proprietor of book depot. The plaintiff is supplying the books to the defendant as per his requirement and sold books for an amount of Rs. 4,88,404/ through invoice and defendant assured to make payment of the said invoice but did not make payment despite repeated requests hence the plaintiff sent two legal notices dated 2.5.2022 and 17.10.2022 and despite service of notices the defendant did not pay the said amount therefore the plaintiff has filed the present suit for recovery of said amount.
3. Summons of the suit were sent to the defendant and defendant contested the suit by filing the written statement. In the written Suit (Com.) No. 321/2023 Page No. 2 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal statement, the defendant has taken the preliminary objection that this court has no territorial jurisdiction as defendant's office is situated at Haryana and alleged order has been placed from Haryana at Noida office of plaintiff and the goods were supplied from Noida office to Haryana. Further, it is stated that the plaintiff is not a registered partnership firm therefore the suit is barred under Section 69 of the Partnership Act. It is further stated that the suit is time barred as bills are of the year 2019 and suit has been filed on 20.2.2023.
4. On merits, it is stated that the defendant was appointed as dealer of the plaintiff for sale of books. Plaintiff used to utilize the networking and the goodwill of defendant in the area for sale of its books to shopkeepers. The orders were taken by the agents of plaintiff and books were directly supplied to the book shop owners. The money was collected by the agents of plaintiff from the shopkeepers and in the present case, Sh. Tushar Sharma was appointed as Haryana head and Sh. Vikas Kumar as District head by the plaintiff and the said Vikas Kumar used to coordinate with the defendant and off and on, said Tushar Sharma also used to interact with the defendant. It is further stated that the defendant came to know that there were certain internal issues between the plaintiff to the effect that said Vikas Kumar used to collect the payments from shopkeepers and did not account for, to the plaintiff. In this regard, Tushar Sharma sent email to the head office of plaintiff requesting them to stop Vikas Kumar to collect payments on behalf of the plaintiff and on these accounts, Vikas Kumar was removed from the services of plaintiff. It is further stated that somewhere on Suit (Com.) No. 321/2023 Page No. 3 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal 15.6.2022, Sh. Jitender Bajaj, Sales Executive / Area Head of plaintiff had visited the premises of defendant and account of plaintiff and defendant were settled and it was found that no amount was due and payable by the defendant to the plaintiff. It is further stated that it was agreed by the plaintiff that the plaintiff would be giving discount of 45% on all bills however as per the bills filed by the plaintiff itself, there are many bills on which discount of 45% has not been given and further in case, due credit of 45% is given to these discounts, an amount of Rs. 2,30,089/ become payable. It is further stated that the plaintiff is not authorized to change the rates after distributing the sample book rates. In the present case, the sample rates for supply of books for the year 2019 and 2020 were circulated in September 2018 however the rates for the books supplied after 1.1.2019 were not as per sample rates provided earlier i.e. in September 2018 barring on one or two occasions and the rates were 30% higher than the sample rates provided in September 2018 however, the same has not been adjusted till date and hence, there is a difference of Rs. 86,047/ after giving due credit of 45% discount. It is further stated that the defendant has returned books amounting to Rs. 2,02,619/ vide debit note dated 18.10.2019 which has not been credited in the statement of account.
5. It is further stated that the plaintiff had agreed to give a net turn over discount of 5% each year and on this account, a sum of Rs. 74,525/ being five percent discounts for the years 2019 and 2020 are to be given by the plaintiff to the defendant which has not been given in the statement of account therefore, the plaintiff has to give a total credit of Suit (Com.) No. 321/2023 Page No. 4 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal Rs. 5,93,280/ to the defendant hence a sum of Rs. 1,04,876/ becomes due and payable by the plaintiff to the defendant after deducting amount of Rs. 4,88,404/ from Rs. 5,93,280/ and thus, the plaintiff is not entitled to any amount.
6. Plaintiff has filed replication to the written statement of defendant in which plaintiff has denied the contents of written statement. It is stated that the plaintiff's partnership firm is duly registered with Sub RegistrarIII, Delhi and the said deed carries the registration certificates issued by Registrar of Firms in the form of Form A, Form B and Form C which clearly shows the name of its partners. With respect to the jurisdiction, it is denied in the replication that orders were placed from Haryana at Noida office of plaintiff and the goods were supplied from Noida office to Haryana. It is stated that whatever dispatches were made to defendant was only done plaintiff centralized office of plaintiff which is within the territorial jurisdiction of this court and to prove the same, plaintiff had already filed transporters record. It is further stated with respect to limitation that the last bill was raised on 30.4.2019 and last payment was made on 16.9.2020 and thus, the suit is within the limitation. Further the plaintiff has denied that the payment used to be collected by its agents.
7. It is stated that the defendant himself has made several times payment to the plaintiff personally through RTGS etc. It is further denied that Sh. Jitender Bajaj ever visited to the defendant or stated that there is no dues. It is also denied that the plaintiff agreed to give discount @ 45% on all bills or that sample rates of books for the year Suit (Com.) No. 321/2023 Page No. 5 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal 20182019 were circulated and the rates for the books after 1.1.2019 are not as per the sample rates or that the said rates were 30% higher in the year 20192020 and thus, the defendant is entitled to Rs. 86,047/ after giving due credit of 45% discount. It is also denied that the defendant returned books vide debit note dated 18.10.2019 which has not been due credit in statement of account. It is also denied that the plaintiff has ready to give turn over discount @ 5% each year and on this account a sum of Rs. 74,525/ become due. It is stated that for the years 2019 and 2020 5% discount was credited in the bank account of defendant amounting to Rs. 75,417/. It is also denied that plaintiff has to give a total credit of Rs. 5,93,280/ to the defendant after adjusting of Rs. 88,404/ and Rs. 1,04,876/ is due in favour of the defendant. Thus, the plaintiff has prayed for decree of the suit.
8. On the basis of the pleadings of the parties, following issues were framed vide order dated 3.11.2023 for consideration :
1. Whether the present suit is barred by limitation?
OP Parties.
2. Whether the present suit has not been filed by duly authorized person? OP Parties.
3. Whether this court has no territorial jurisdiction to entertain the instant suit? OP Parties.
4. Whether the plaintiff is entitled for recovery of the suit amount of Rs. 4,88,404/? OPP.
5. Whether the plaintiff is entitled to interest? If so, Suit (Com.) No. 321/2023 Page No. 6 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal at what rate and for which period? OPP.
6. Relief.
EVIDENCES
9. In order to prove her case, plaintiff has only examined its AR Sh. Dinesh Kumar Tripathi as PW1 and led his evidence by way of affidavit Ex. PW1/A. In his examination in chief she almost repeated the same contents as stated in the plaint. He relied upon following documents :
1. Copy of said Partnership Deed along with Form C as Ex. PW1/1 (Colly.) (OSR) and photocopies of Form A and Form B as Mark A (2 pages) and Mark B.
2. Special Power of Attorney as Ex. PW1/2.
3. Bill of Supply/Invoice Vide Invoice No. CRB/2456 Dated 29.01.2019 as Ex. PW1/3.
4. Gate Pass Vide S. No. 4879 dated 29.01.2019 as Ex.
PW 1/3/1.
5. Worksheet Vide WS No. 2018/2487 dated 28.01.2019 as Ex. PW1/3/2.
6. Purchase Order through email dated 28.01.2019 as Ex. PW 1/3/3.
7. Photocopy of transporter's Receipt No. 4071 dated 29.01.2019 as Mark X1.
8. First page of bill of Supply/Invoice No. CRB/2903 dated 13.02.2019 as Ex. PW1/3/5.
Suit (Com.) No. 321/2023 Page No. 7 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
9. Second page of aforesaid bill of Supply/Invoice No.CRB/2903 Dated 13.02.2019 as Ex. PW1/3/6.
10. Transporter's Receipt No. 5838 as Ex. PW1/3/7.
11. Gate Pass Vide S. No. 5245 Dated 13.02.2019 as Ex.
PW 1/3/8.
12. Worksheet Vide WS No. 2018/2991 Dated 12.02.2019 as Ex. PW1/3/9.
13. Purchase Order Through Email dated 11.02.2019 as Ex. PW1/3/10.
14. Bill of Supply/Invoice No. CRB/2904 Dated 13.02.2019 as Ex. PW1/3/11.
15. Transporter's Receipt No. 42590 Dated 13.02.2019 as Ex. PW1/3/12.
16. Gate Pass Vide S. No.5243 dated 13.02.2019 as Ex.
PW1/3/13.
17. Worksheet Vide WS No. 2018/2992 Dated 12.02.2019 as Ex. PW1/3/14.
18. Bill of Supply/Invoice No. CRB/2905 Dated 13.02.2019 as Ex. PW1/3/15.
19. Transporter's Receipt No. 5839 as Ex. PW1/3/16.
20. Gate Pass Vide S. No. 5244 dated 13.02.2019 as Ex.
PW1/3/17.
21. Worksheet Vide WS No. 2018/2993 dated 12.02.2019 as Ex. PW1/3/18.
22. Purchase Order through Email dated 11.02.2019 as Suit (Com.) No. 321/2023 Page No. 8 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal Ex. PW1/3/19.
23. Bill of Supply/Invoice No. CRB/3292 Dated 19.02.2019 as Ex. PW1/3/20.
24. Transporter's Receipt No. 43338 and Ex. PW1/3/21.
25. Gate Pass Vide S. No. 5539 dated 19.02.2019 as Ex.
PW1/3/22.
26. Worksheet Vide WS No. 2018/3419 dated 19.02.2019 as Ex. PW1/3/23.
27. Purchase Order through Email dated 16.02.2019 as Ex. PW1/3/24.
28. Bill of Supply/Invoice No. CRB/3590 Dated 24.02.2019 as Ex. PW1/3/25.
29. Transporter's Receipt No. 45985 Dated 25.02.2019 as Ex. PW1/3/26.
30. Gate Pass Vide S. No. 5783 dated 24.02.2019 as Ex.
PW1/3/27.
31. Worksheet Vide WS No. 2018/3701 Dated 23.02.2019 as Ex. PW1/3/28.
32. Bill of Supply/Invoice No. CRB/4213 Dated 05.03.2019 as Ex. PW1/3/29.
33. Transporter's Receipt No. NOD0001999 Dated 05.03.2019 as Ex. PW1/3/30.
34. Gate Pass Vide S. No. 6282 dated 05.03.2019 as Ex.
PW1/3/31.
35. Worksheet Vide WS No. 2018/4348 Dated 03.03.2019 Suit (Com.) No. 321/2023 Page No. 9 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal as Ex. PW1/3/32.
36. Purchase Order through Email dated 01.03.2019 as Ex. PW1/3/33.
37. Bill of Supply/Invoice No. CRB/4536 dated 09.03.2019 as Ex. PW1/3/34.
38. Transporter's Receipt No. 8090 Dated 11.03.2019 as Ex. PW1/3/35.
39. Gate Pass Vide S. No. 6538 dated 09.03.2019 as Ex.
PW1/3/36.
40. Worksheet Vide WS No. 2018/4714 dated 08.03.2019 as Ex. PW1/3/37.
41. Purchase Order Through Email Dated 05.03.2019 as Ex. PW1/3/38.
42. Bill of Supply/Invoice No. CRB/5164 dated 16.03.2019 Ex. PW1/3/39.
43. Transporter's Receipt No. 51108 dated 18.03.2019 as Ex. PW1/3/40.
44. Gate Pass Vide S. No. 7049 dated 16.03.2019 as Ex.
PW1/3/41.
45. Worksheet Vide WS No. 2018/5357 Dated 16.03.2019 as Ex. PW1/3/42.
46. Purchase Order through Email Dated 13.03.2019 as Ex. PW1/3/43.
47. Bill of Supply/Invoice No. CRB/5363 Dated 19.03.2019 as Ex. PW1/3/44.
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48. Transporter's Receipt No. 6538 Dated 20.03.2019 as Ex. PW1/3/45.
49. Gate Pass Vide S. No. 7198 dated 19.03.2019 as Ex.
PW1/3/46.
50. Worksheet Vide WS No. 2018/5576 Dated 19.03.2019 as Ex. PW1/3/47.
51. Purchase Order Through Email dated 16.03.2019 as Ex. PW1/3/48.
52. Bill of Supply/Invoice No. CRB/5371 Dated 19.03.2019 as Ex. PW1/3/49.
53. Transporter's Receipt No. 41793 Dated 20.03.2019 as Ex. PW1/3/50.
54. Gate Pass Vide S. No. 7205 dated 19.03.2019 as Ex.
PW1/3/51.
55. Worksheet Vide WS No. 2018/5585 Dated 19.03.2019 as Ex. PW1/3/52.
56. Purchase Order Through Email dated 16.03.2019 as Ex. PW1/3/53.
57. Bill of Supply/Invoice No/CRB/5468 Dated 20.03.2019 as Ex. PW1/3/54.
58. Transporter's Receipt No. 50439 Dated 23.03.2019 as Ex. PW1/3/55.
59. Gate Pass Vide S. No. 7263 dated 19.03.2019 as Ex.
PW1/3/56.
60. Worksheet Vide WS No. 2018/5663 dated 20.03.2019 Suit (Com.) No. 321/2023 Page No. 11 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal as Ex. PW1/3/57.
61. Purchase Order Through Email dated 19.03.2019 as Ex. PW1/3/58.
62. Bill of Supply/Invoice Vide Invoice No. CRB/5511 dated 23.03.2019 Ex. PW1/3/59.
63. Transporter's Receipt No. 50670 Dated 25.03.2019 as Ex. PW1/3/60.
64. Gate Pass Vide S. No. 7295 Dated 23.03.2019 as Ex.
PW1/3/61.
65. Worksheet Vide WS No. 2018/5715 Dated 23.03.2019 as Ex. PW1/3/62.
66. Purchase Order Through Email dated 19.03.2019 as Ex. PW1/3/63.
67. Bill of Supply/Invoice No. CRB/5639 Dated 26.03.2019 as Ex. PW1/3/64.
68. Transporter's Receipt No. 41197 Dated 26.03.2019 as Ex. PW1/3/65.
69. Gate Pass Vide S. No. 7393 Dated 26.03.2019 as Ex.
PW1/3/66.
70. Worksheet Vide WS No. 2018/5830 Dated 25.03.2019 as Ex. PW1/3/67.
71. Purchase Order Through Email dated 19.03.2019 as Ex. PW1/3/68.
72. Print out of PDF copy of purchase Order Through aforesaid email dated 19.03.2019 as Ex. PW1/3/69.
Suit (Com.) No. 321/2023 Page No. 12 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
73. Bill of Supply/Invoice No. CRB/5704 dated 27.03.2019 as Ex. PW1/3/70.
74. Transporter's Receipt No. 50943 dated 27.03.2019 as Ex. PW1/3/71.
75. Gate Pass Vide S. No. 7448 Dated 27.03.2019 as Ex.
PW1/3/72.
76. Worksheet Vide WS No. 2018/5929 Dated 27.03.2019 as Ex. PW1/3/73.
77. Purchase Order Through Email dated 19.03.2019 as Ex. PW1/3/74.
78. Bill of Supply/Invoice No. CRB/5768 dated 28.03.2019 as Ex. PW1/3/75.
79. Transporter's Receipt No. NOD0002470 dated 28.03.2019 as Ex. PW1/3/76.
80. Gate Pass Vide S. No. 7493 dated 28.03.2019 as Ex.
PW1/3/77.
81. Worksheet Vide WS No. 2018/5993 Dated 27.03.2019 as Ex. PW1/3/78.
82. Bill of Supply/Invoice No. CRB/81 Dated 03.04.2019 as Ex. PW1/3/79.
83. Transporter's Receipt No. 8545 Dated 04.04.2019 as Ex. PW1/3/80.
84. Gate Pass Vide S. No. 7856 Dated 03.04.2019 as Ex.
PW1/3/81.
85. Worksheet Vide WS No. 2019/69 Dated 03.04.2019 Suit (Com.) No. 321/2023 Page No. 13 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal as Ex. PW1/3/82.
86. Bill of Supply/Invoice No. CRB/288 Dated 12.04.2019 as Ex. PW1/3/83.
87. Transporter's Receipt No. 1208 Dated 13.04.2019 as Ex. PW1/3/84.
88. Gate Pass Vide S. No. 8016 Dated 13.04.2019 as Ex.
PW1/3/85.
89. Worksheet Vide WS No. 2019/298 Dated 10.04.2019 as Ex. PW1/3/86.
90. Purchase Order Through Email dated 02.04.2019 as Ex. PW1/3/87.
91. Bill of Supply/Invoice No. CRB/683 Dated 30.04.2019 as Ex. PW1/3/88.
92. Transporter's Receipt No. 8125 Dated 30.04.2019 as Ex. PW1/3/89.
93. Gate Pass Vide S. No. 8362 Dated 30.04.2019 as Ex.
PW1/3/90.
94. Worksheet Vide WS No. 2019/727 Dated 29.04.2019 as Ex. PW1/3/91.
95. Purchase Order Through Email dated 26.04.2019 as Ex. PW1/3/92.
96. Working of Ledger Account From 01.04.2018 to 31.03.2019 as Ex. PW1/3/93.
97. Working of Ledger Account From 01.04.2019 to 31.03.2020 as Ex. PW1/3/94.
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98. First Legal Notice date 02.05.2022 sent to Defendant as Ex.PW1/4.
99. Original Speed Post receipt vide Consignment No. ED088265813IN as Ex.PW1/4/1.
100. Original Speed Post receipt vide Consignment No. ED088265827IN as Ex.PW1/4/2.
101. Track Consignment Report Procured from Indian Postal Website for Consignment No. ED088265813IN reflecting delivery confirm vide dated 12.05.2022 as Mark X2.
102. Track Consignment Report Procured from Indian Postal Website for Consignment No. ED088265827IN reflecting delivery confirm vide dated 12.05.2022 as Mark X3.
103. Copy of Legal Notice dated 17.10.2022 as Ex. PW 1/5.
104. Original Speed Post receipt vide Consignment No. ED143741475IN as Ex.PW1/6.
105. Original Speed Post receipt vide Consignment No. ED143741458IN as Ex.PW1/6/1.
106. Track Consignment Report Procured from Indian Postal Website for Consignment No. ED143741475IN reflecting delivery confirm vide Dated 21.10.2022 as Mark X4.
107. Track Consignment Report Procured from Indian Suit (Com.) No. 321/2023 Page No. 15 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal Postal Website for Consignment No. ED143741458IN reflecting delivery confirm vide Dated 21.10.2022 as Mark X5.
108. Print out of email dated 17.10.2022 to the defendant vide as Ex. PW1/7.
109. Reply to the Legal Notice as Ex. PW1/8.
110. Ledger Account maintained by Plaintiff for the Defendant for the transaction entered with the Defendant reflecting debits and credit for the Financial Years 01.04.2018 to 31.03.2019 as Ex. PW1/9.
111. Ledger Account maintained by Plaintiff for the Defendant for the transaction entered with the Defendant reflecting debits and credit for the Financial Years 01.04.2019 to 31.03.2020 as Ex. PW1/9/1.
112. Ledger Account maintained by Plaintiff for the Defendant for the transaction entered with the Defendant reflecting debits and credit for the Financial Years 01.04.2020 to 31.03.2021 as Ex. PW1/9/2.
113. Ledger Account maintained by Plaintiff for the Defendant for the transaction entered with the Defendant reflecting closure of account of Defendant due to the present dispute for overdue outstanding amount for the year 01.04.2021 to 05.01.2023 as Ex. PW1/9/3.
114. Certificate under Section 65B of the Indian evidence Suit (Com.) No. 321/2023 Page No. 16 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal Act pertaining to the electronic records filed alongwith the original suit in shape of Ledger Accounts / Statement of Account maintained by the Plaintiff for the transactions entered with the Defendant showing debits and credits, computer generated Bill of Supply, Worksheets alongwith Email/Purchase orders through which Defendant have raised the demands for supply of books as Ex. PW1/10.
115. Certificate under Section 65B of Indian Evidence Act 1872, is also being placed on record pertaining to email services of Legal Notice to Defendant qua counsel of Plaintiff alongwith the original suit is hereby exhibited as Ex. PW1/11.
10. In his cross examination he deposed that he was working as Sr. Manager with the plaintiff firm. There was no formal written agreement between plaintiff and defendant. The partnership deed Ex. PW1/1 is dated 1.4.2015 and it has four partners. The power of attorney Ex. PW1/2 was executed in my presence. He denied the suggestion that signatures on POA is not of Subhojit Bose. He denied the suggestion that he does not maintain the account of plaintiff firm and voluntarily stated that he is head of the Accounts Department. He denied the suggestion that balance has been shown in the statement Ex. PW1/9 without any basis and there was no due of Rs. 3,93,818.05 on 1.4.2018 which was allegedly carry forward.
Suit (Com.) No. 321/2023 Page No. 17 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal He admit that goods mentioned in the invoices Ex. PW1/3, Ex. PW1/3/5, Ex. PW1/3/6, Ex. PW1/3/11, Ex. PW1/3/15, Ex. PW1/3/20, Ex. PW1/3/25, Ex. PW1/3/29, Ex. PW1/3/34, Ex. PW1/3/39, Ex. PW1/3/44, Ex. PW1/3/49, Ex. PW1/3/54, Ex. PW1/3/59, Ex. PW1/3/64, Ex. PW1/3/70, Ex. PW1/3/75, Ex. PW1/3/79, Ex. PW1/3/83 and Ex. PW1/3/88 was not delivered in Delhi and voluntarily stated that same was delivered from Delhi to the premises of defendant at Jind, Haryana. The delivery of supply of goods is taken by transporter as the goods have been supplied through transport in its GR receipt.The goods were delivered form Darya Ganj, central office cum godown of the plaintiff. It is correct that in none of the aforesaid invoices the address of Darya Ganj is mentioned and voluntarily stated that the aforesaid invoices were prepared from Noida office of the plaintiff. It is correct that on the gate pass Ex. PW1/3/1, Ex. PW1/3/8, Ex. PW1/3/13, Ex. PW1/3/17, Ex. PW1/3/22, Ex. PW1/3/27, Ex. PW1/3/31, Ex. PW1/3/36, Ex. PW1/3/41, Ex. PW1/3/46, Ex. PW1/3/51, Ex. PW1/3/56, Ex. PW1/3/61, Ex. PW1/3/66, Ex. PW1/3/72, Ex. PW1/3/77, Ex. PW1/3/81, Ex. PW1/3/85 and Ex. PW1/3/90 also bear address of Noida. The goods are delivered to the party as directed by the defendant. It is wrong to suggest that none of the goods as mentioned in the aforementioned invoices were supplied to the defendant or to the party as directed by defendant. The aforesaid invoices were sent to the defendant on emails. No such email has been filed on record through which said invoices were sent. It is wrong to suggest that the said emails were not filed as no such emails have been sent. He deposed that as per practice of plaintiff firm, first Suit (Com.) No. 321/2023 Page No. 18 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal invoice is prepared and then gate pass.
At this stage, witness's attention is drawn on gate pass dated 19.3.2019 Ex. PW1/3/56. The corresponding invoice of the said gate pass is Ex. PW1/3/54. It is correct that the said invoice is of 20.3.2019 and voluntarily stated that inadvertently, the concerned person has put the wrong date on the gate pass as 19.3.2019 instead of 20.3.2019. It is wrong to suggest that the same is not erroneously but forged paper has been filed.
He admitted that on invoice Ex. PW1/3 dated 29.1.2019, name of transporter has been mentioned as Malik Transport. The corresponding transport receipt of the same is Mark X1 which is of Jai Naina Devi and voluntarily stated that on the invoice, name of transporter has been wrongly mentioned as Malik Transport instead of Jai Naina Devi. He admitted that on invoice Ex. PW1/3/5 name of transporter has been mentioned as Malik Transport. The corresponding transport receipt of the same is Ex. PW1/3/7 which is of Jai Naina Devi and voluntarily stated that on the invoice, name of transporter has been wrongly mentioned as Malik Transport instead of Jai Naina Devi. He admit that on invoice Ex. PW1/3/44 name of transporter has been mentioned as Malik Transport. The corresponding transport receipt of the same is Ex. PW1/3/45 which is of Jai Naina Devi and voluntarily stated that on the invoice, name of transporter has been wrongly mentioned as Malik Transport instead of Jai Naina Devi. He admitted that on invoice Ex. PW1/3/79 name of transporter has been mentioned as Malik Transport. The corresponding transport receipt of the same is Suit (Com.) No. 321/2023 Page No. 19 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal Ex. PW1/3/80 which is of Jai Naina Devi and voluntarily stated that on the invoice, name of transporter has been wrongly mentioned as Malik Transport instead of Jai Naina Devi.
He admitted that on invoice Ex. PW1/3/83 name of transporter has been mentioned as Malik Transport. The corresponding transport receipt of the same is Ex. PW1/3/84 which is of Jai Naina Devi and voluntarily stated that on the invoice, name of transporter has been wrongly mentioned as Malik Transport instead of Jai Naina Devi.
He admit that the purchase orders of invoice Ex. PW1/3/11, Ex. PW1/3/25, Ex. PW1/3/75 and Ex. PW1/3/79 are not on record. Witness's attention was drawn towards emails Ex. PW1/3/3, Ex. PW1/3/10, Ex. PW1/3/19, Ex. PW1/3/24, Ex. PW1/3/33, Ex. PW1/3/38, Ex. PW1/3/43, Ex. PW1/3/48, Ex. PW1/3/53, Ex. PW1/3/58, Ex. PW1/3/63, Ex. PW1/3/68, Ex. PW1/3/69, Ex. PW1/3/74, Ex. PW1/3/87 and Ex. PW1/3/92 and he admitted that in the email Ex. PW1/3/3 mentions the discount of 45%. The discount as mentioned in the said e mail in the corresponding invoice would have been given. He admit that in the corresponding invoice Ex. PW1/3, 45% discount was not given and voluntarily stated that in the invoice, base discount + quantity discount which might be 20% or 25% of the invoice amount but the remaining discount has been credited in the ledger account through credit notes. Credit notes have not been filed on record and voluntarily stated that same is mentioned in the ledger account. He admitted that discount of 45% is to be given on all the invoices. He admitted that debit note dated 18.10.2019 was received by plaintiff, Ex. PW1/D1 and Suit (Com.) No. 321/2023 Page No. 20 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal voluntarily stated that same was entered in ledger account and amount was credited. He after after going through the ledger account Ex. PW1/9/1 has pointed out entries dated 27.6.2019 for amount of Rs. 16,416.55, dated 26.8.2019 for amount of Rs. 42,283.25, dated 20.9.2019 for amount of Rs. 59,112.90, dated 16.10.2019 for amount of Rs. 7697.25 dated 22.10.2019 for amount of Rs. 1,05,761.10, dated 18.12.2019 for amount of Rs. 6446/ and Rs. 56,661/ encircled in red as entries regarding debit notes and voluntarily stated that the entries were made separately because debit notes are sent in bundles and not on time therefore whenever the bundles are opened, the entires are made. He denied the suggestion that the said entries does not pertain to the debit note Ex. PW1/D1. He admitted the suggestion that 5% discount is to be given to the defendant on the total turn over of sales of every year and that no discount was given to defendant on the total turn over sales for the year 201920 and voluntarily stated that there is return of goods more than sales of goods by defendant therefore he did not qualify for discount in that year. He denied the suggestion that rate list for the year 201920 were circulated in September 2018 and after circulating the rate list in September 2018, the books were supplied at a higher rate of 30% than the rate circulated in September 2018.
11. On the other hand, the defendant has also only examined himself as DW1 who led his evidence by way of affidavit as Ex. DW1/A In his examination in chief, he almost deposed the same fact as stated in written statement. He relied upon the following documents :
1. Debit note No. 25 as already Ex. PW1/D1.Suit (Com.) No. 321/2023 Page No. 21 of 61
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2. Copy of GR receipt No. 8536 dated 18.10.2019 as Mark A.
3. Calculation Sheet showing total amount of Rs.
5,93,280/ as already Ex. PW1/D2.
12. In his cross examination, he deposed that he has not filed any ledger account pertaining to dealings between him and plaintiff and voluntarily stated that he has filed summary of dealings with plaintiff. He stated that the entry in the ledger of plaintiff is wrong as the debit note No. 25 placed by defendant has not been entered and annual turn over discount has not been given. He has not filed any record wherein he has placed orders to sales representatives of the plaintiff. He knows Vikas Kumar as he is the sales representative of the plaintiff firm. He has stated in his affidavit that Vikas Kumar has collected the payment from parties in defendant name and did not gave the same to the defendant. He has not filed any document regarding payment collected by Vikas Kumar. He further deposed that no document has been given by the plaintiff that there will be no difference in price of books which were given as sample and which were actually supplied for selling and voluntarily stated that he is carrying the rate list Ex. DW1/P44 given by plaintiff taken from website of the plaintiff which clearly shows difference of rate. He has not given any written complaint about change of rates and voluntarily told that it was orally.
ARGUMENTS Suit (Com.) No. 321/2023 Page No. 22 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
13. Arguments heard from Sh. Nikhil Tripathi, Sh. Shoumik Mazumdar, Sh. Upendra Kumar Nagar, Ms. Urfia Shafiq, Ms. Bhagyashree and Ms. Sabhyata, Ld. Counsels for the plaintiff and Sh. Nischay Kapoor and Sh. Nishant Yadav, Ld. Counsels for the defendant.
14. Ld. Counsel for plaintiff has argued that from the testimony of PW1 it is proved that the plaintiff has sold books to the defendant vide invoices and defendant made party payment and a sum of Rs. 48,404/ against the defendant is due which is proved from the ledger account Ex. PW1/D2.
15. Ld Counsel for plaintiff further argued that the plaintiff has provided discount as agreed between the plaintiff and defendant and after adjusting said difference, a sum of Rs. 4,88,404/ is due thus the plaintiff is entitled to decree of the said amount.
16. On the other hand, Ld. Counsel for defendant has argued that this court has no territorial jurisdiction as the goods were sent by the plaintiff to defendant from his Noida office to his shop in Haryana. It is further argued that the plaintiff was required to given 45% discount + 5% discount on annual turn over but the same has not been provided. It is further argued that the plaintiff was required to adjust amount of Rs. 2,02,619/ of the books which defendant has returned to the plaintiff but the same has not adjusted the same and further argued that the plaintiff has increased the rates of books from sample books supplied in the year 2018 which plaintiff is not permitted. Hence, plaintiff is liable to adjust difference of said rate and if all these discounts and difference rate is Suit (Com.) No. 321/2023 Page No. 23 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal adjusted, the defendant would be entitled to recovery of Rs. 1,04,876/ instead of plaintiff recovering Rs. 4,88,404/ therefore the suit of the plaintiff is liable to be dismissed.
ANALYSIS OF EVIDENCES / FINDINGS ISSUES NO. 1 Whether the present suit is barred by limitation? OP Parties.
17. Ld. Counsel for the defendant has argued that the plaintiff has filed the present suit for recovery of amount qua invoices Ex. PW1/3, Ex. PW1/3/5, Ex. PW1/3/6, Ex. PW1/3/11, Ex. PW1/3/15, Ex. PW1/3/20, Ex. PW1/3/25, Ex. PW1/3/29, Ex. PW1/3/34, Ex. PW1/3/39, Ex. PW1/3/44, Ex. PW1/3/49, Ex. PW1/3/54, Ex. PW1/3/59, Ex. PW1/3/64, Ex. PW1/3/70, Ex. PW1/3/75, Ex. PW1/3/79, Ex. PW1/3/83 and Ex. PW1/3/88 but all these invoices are of the year 2019 and the present suit has been filed on 20.2.2023 whereas the period for recovery of amount of a bill due is three years as per the Limitation Act and thus the period of three years already expired when the suit was filed therefore the suit is barred by limitation.
18. On the other hand, Ld. Counsel for the plaintiff has argued that the suit is within the limitation because the period from 15.3.2020 to 28.21.2022 will be excluded from the period of limitation and if said period is excluded and after exclusion of said period, the plaintiff has filed the suit.
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19. I have considered the submissions and have gone through the record.
20. Undoubtedly, as per entry 14 of the Schedule to the Limitation Act, period for recovery of amount of bill is three years from the when goods are supplied if no specific period for payment is specified and if no period has been specified for the goods sold then the period of limitation would be three years from the date of period of said credit expired. Entry 14 and 15 of Schedule to the Limitation Act is reproduced as under : "14. For the price of goods sold and delivered where no fixed period of credit is agreed upon, the period for limitation is three years from the date of the delivery of the goods.
15. For the price of goods sold and delivered to be paid for after the expiry of a fixed period of credit, the period of limitation is three years from the date when the period of credit expires".
21. The plaintiff has deposed that he has supplied goods to the defendant vide invoices No. Ex. PW1/3, Ex. PW1/3/5, Ex. PW1/3/6, Ex. PW1/3/11, Ex. PW1/3/15, Ex. PW1/3/20, Ex. PW1/3/25, Ex. PW1/3/29, Ex. PW1/3/34, Ex. PW1/3/39, Ex. PW1/3/44, Ex. PW1/3/49, Ex. PW1/3/54, Ex. PW1/3/59, Ex. PW1/3/64, Ex. PW1/3/70, Ex. PW1/3/75, Ex. PW1/3/79, Ex. PW1/3/83 and Ex. PW1/3/88. In his cross examination by defendant, there is no suggestion that the goods were not supplied to the defendant through the said invoices therefore these Suit (Com.) No. 321/2023 Page No. 25 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal invoices are proved.
22. On perusal of aforesaid invoices, I found that the first invoice bearing No. BBNOIDA/2018/CFRB/2456 is dated 29.1.2019 and last invoice is of xxxxx. Since it was a simple current running account maintain by plaintiff in which it used to mention details of books / goods supplied to defendant and payments made by defendant therefore, period of limitation would start from the date when goods were supplied to defendant as per Entry 14 of schedule to the Indian Limitation Act 1963 and not from the date of end of financial year as provided in entry 1 of the schedule to Indian Limitation Act. In this regard, I rely upon Bharath Skins Corporation v. Taneja Skins Company Pvt. Ltd.,186 (2012) DLT 290 (DB) where in it is held as under:
"10. In order to find an answer to the question: Whether Arti cle 1 of the Schedule to the Limitation Act, 1963 applies to the present case, it is first required to be seen: Whether the account between the parties was a mutual account as en visaged in Article 1 of the Schedule to the Limitation Act, 1963, it not being in dispute that the account was current and open.
11. In the decision reported as AIR 1965 SC 1711, Ke sharichand Jaisukhlal v. The Shillong Banking Corporation, the Supreme Court defined the scope of the expression 'mutual' occurring in Article 85 of the Schedule to the Indian Limitation Act, 1908 (precursor to Article 1 of the Schedule to the Limitation Act, 1963) in the following terms:
The next point in issue is whether the proceedings are gov erned by Article 85 of the Indian Limitation Act, 1908, and if so, whether the suit is bared by limitation. The argument be fore us proceeded on the footing that an application un der Section 45(D) of the Banking Companies Act is gov Suit (Com.) No. 321/2023 Page No. 26 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal erned by the Indian Limitation Act, and we must decide this case on that footing. But we express no opinion one way or the other on the question of the applicability of the Indian Limitation Act to an application under Section 45(D). Now, Article 85 of the Indian Limitation Act, 1908 provides that the period of limitation for the balance due on a mutual, open and current account, where there have been recipro cal demands between the parties is three years from the close of the year in which the last item admitted or proved is entered in the account such year to be computed as in the account. It is not disputed that the account between the par ties was at all times an open and current one. The dispute is whether it was mutual during the relevant period.
11. Now in the leading case of Hirada Basappa v. Gadigi Muddappa, (1871) VI Mad H C R 142, 144]. Holloway, Act ing C.J. observed:
To be mutual there must be transactions on each side creat ing independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations.'
12. These observations were followed and applied in Tea Financing Syndicate Ltd. v. Chandrakamal Bezbaruah, I.L.R. [1931] 58 Cal. 642 and Monotosh K. Chatterjee v.
Central Calcutta Bank Ltd., [1953] 91 C.L.J. 16, and the first mentioned Calcutta case was approved by this Court in Hin dustan Forest Company v. Lal Chand, (1960) 1 SCR 563. Holloway, Acting C.J. laid down the test of mutuality on a construction of Section 8 of Act 14 of 1859, though that Sec tion did not contain the words "where there have been recip rocal demands, between the parties". The addition of those words in the corresponding Article 87 of Act 9 of 1871, Arti cle 85 of Act 15 of 1877 and Article 85 of the Act of 1908 adopts and emphasises the test of mutuality laid down in the Madras case.
13. In the instant case, there were mutual dealings between the parties. The respondent Bank gave loans on overdrafts, Suit (Com.) No. 321/2023 Page No. 27 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal and the appellant made deposits. The loans by the respon dent created obligations on the appellant to repay them. The respondent was under independent obligations to repay the amount of the cash deposits and to account for the cheques, hundis and drafts deposited for collection. There were thus transactions on each side creating independent obligations on the other, and both sets of transactions were entered in the same account. The deposits made by the ap pellant were not merely complete or partial discharges of its obligations to the respondent. There were shifting balances on many occasions the balance was in favour of the appel lant and on many other occasions, the balance was in favour of the respondent. There were reciprocal demands between the parties, and the account was mutual. This mu tual account was fairly active up to June 25, 1947. It is not shown that the account ceased to be mutual thereafter. The parties contemplated the possibility of mutual dealings in fu ture. The mutual account continued until December 29, 1950 when the last entry in the account was made. It is con ceded on behalf of the appellant that if the account was mu tual and continued to be so until December 29, 1950, the suit is not barred by limitation, having regard to Section 45(o) of the Banking Companies Act. The Courts below, therefore, rightly answered issue No. 1 in the negative.
(Emphasis supplied)
12. From the aforesaid observations, it can be deduced that for the creation of an open, current and mutual account, there must be an intention between the parties, either ex press or implied, which may be deducible from the course of dealings to have mutual dealings, creating reciprocal obliga tions, independent of each other. A 'demand' in relation to a matter of account means a 'claim for money', arising out of a 'contractual business relationship' between the parties. Where the dealings between the parties disclose a 'single' contractual relationship, there will be demands only in favour of one party. For instance, where the relationship be Suit (Com.) No. 321/2023 Page No. 28 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal tween 'A' and 'B' is that of lender and borrower respectively, 'A' will have a 'demand' against 'B' in respect of every item of loan advanced. But 'B' can have no demand against 'A'. Where the dealings between the parties disclose 'two' con tractual relationships, there will arise demands in favour of each side against the other. For instance, where 'A' ad vances money to 'B' from time to time as loan, and 'B' en gages 'A' as his agent for the sale of goods sent by 'B', there are two contractual relationships between the parties:
one, that of lender and borrower and the other, that of prin cipal and agent. 'A' as creditor may have several demands against 'B' who as principal may have, independently, sev eral demands against 'A'. The real test, therefore, to see whether there have been reciprocal demands in any particu lar case is to see: Whether there is a 'dual contractual rela tionship' between the parties.
13. Where 'A' sells goods to 'B' from timetotime and 'B' makes payments towards the price from timetotime, there is only a 'single' contractual relationship, namely that of buyer and seller, between the parties. 'A' has demands against 'B' for items sold, but 'B' can have no 'demands' against ' A'. Such case is not one of reciprocal demands and thus Article 85 of the Schedule to the Indian Limitation Act, 1908 corresponding to Article 1 of the Schedule to the Limitation Act, 1963 will not apply to suits on such ac counts. We are fortified in our view by the following observa tions made by the Supreme Court in the decision reported as AIR 1959 SC 1349, Hindustan Forest Company v. Lal Chand:
The learned Judge of the High Court who heard the suit held that Art. 115 had no application and dismissed the suit as barred by limitation. The sellers went up in appeal which was heard by two other learned Judges of the High Court. The learned Judges of the appellate Bench of the High Court held that Art. 115 of the Jammu & Kashmir Limitation Act applied and the suit was not barred. They thereupon al Suit (Com.) No. 321/2023 Page No. 29 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal lowed the appeal and passed a decree in favour of the sell ers. The buyer has now come up in appeal to this Court.
5. Article 115 of the Jammu and Kashmir Limitation Act which is in the same terms as Art. 85 of the Indian Limitation Act except as to the period of limitation, is set out below:
6. If the article applied the suit would be clearly within time as the last item found to have been entered in the account was on June 23, 1947. The only question argued at the Bar is whether the account between the parties was mutual.
7. The question what is a mutual account, has been consid ered by the Courts frequently and the test to determine it is well settled. The case of the Tea Financing Syndicate Ltd. v.
Chandrakamal Bezbaruah, I.L.R. (1930) Cal. 649, may be referred to. There a company had been advancing monies by way of loans to the proprietor of a tea estate and the pro prietor had been sending tea to the company for sale and realisation of the price. In a suit brought by the company against the proprietor of the tea estate for recovery of the balance of the advances made after giving credit for the price realised from the sale of tea, the question arose as to whether the case was one of reciprocal demands resulting in the account between the parties being mutual so as to be governed by Art. 85 of the Indian Limitation Act. Rankin, C.J , laid down at p. 668 the test to be applied for deciding the question in these words:
There can, I think, be no doubt that the requirement of recip rocal demands involves, as all the Indian cases have de cided following Halloway, A.C.J , transactions on each side creating independent obligations on the other and not merely transactions which create obligations on one side, those on the other being merely complete or partial dis charges of such obligations. It is further clear that goods as well as money may be sent by way of payment. We have therefore to see whether under the deed the tea, sent by the defendant to the plaintiff for sale, was sent merely by way of discharge of the defendant's debt or whether it was sent in the course of dealings designed to create a credit to the de Suit (Com.) No. 321/2023 Page No. 30 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal fendant as the owner of the tea sold, which credit when brought into the account would operate by way of setoff to reduce the defendant's liability.'
8. The observation of Rankin, C.J , has never been dis sented from in our Courts and we think it lays down the law correctly. The learned Judges of the appellate Bench of the High Court also appear to have applied the same test as that laid down by Rankin, C.J. They however came to the conclusion that the account between the parties was mutual for the following reasons:
The point then reduces itself to the fact that the defendant company had advanced a certain amount of money to the plaintiffs for the supply of grains. This excludes the question of monthly payments being made to the plaintiffs. The plain tiffs having received a certain amount of money, they be came debtors to the defendant company to this extent, and when the supplies exceeded Rs. 13,000 the defendant com pany became debtors to the plaintiff and later on when again the plaintiff's supplies exceeded the amount paid to them, the defendants again became the debtors. This would show that there were reciprocity of dealings and transac tions on each side creating independent obligations on the other.'
9. The reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings there were no independent obligations.What in fact had happened was that the sellers had undertaken to make de livery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in dis charge of the obligation created in the buyer by the deliver ies made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer. The learned Judges do not appear to have taken a contrary view of the result of these payments.Suit (Com.) No. 321/2023 Page No. 31 of 61
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10. The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer.
This apparently was the reason which led them to the view that there were reciprocal demands and that the transac tions had created independent obligations on each of the parties. This view is unfounded. The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obliga tions to arise under the contract. It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer it was not intended to be and did not amount to an independent transaction detached from the rest of the con tract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to re fund the monies advanced on account of the price and might also have been liable in damages but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in ad vance. No question has, however, been raised as to any de fault on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit.
14. In view of the above discussion, since the dealings be tween the parties disclose a single contractual relationship i.e. of buyer and seller between them, the account between them cannot be termed as a 'mutual' account. As a neces sary corollary, Article 1 of the Schedule to the Limitation Act, 1963 has no application in the present case.
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23. As per entry 14 of the Limitation Act, 1963 the period for recovery of price of goods supplied is three year from the when delivery of goods delivered when no fixed period of credit & further as per entry 15 of Limitation Act, it is three year from the date when period of credit expire where fixed period of credit is given.
24. From the invoices proved by plaintiff Ex. PW1/3 to Ex. PW1/3/91, it is evident that no specific period of credit is given. The first invoice is dated 29.1.2019 and last invoice is dated 30.04.2019 therefore three years period even for first invoice would expire on 28.01.2022 in normal circumstances. Hon'ble Supreme Court in view of corona pandemic has ordered that the period from 15.03.2020 to 28.02.2022, plus 90 days is to be excluded while counting period of limitation and if balance period is more than 90 days then same will be available in view of Judgment passed by the Hon'ble Supreme Court passed in Suo Motu writ petition (C) No. 3/2020 dated 10.01.2022 Relevant portion of the said Judgment is reproduced hereunder : "5.Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021and 23.09.2021, it is directed that the period from15.03.2020 till 28.02.2022 shall stand excluded for the Suit (Com.) No. 321/2023 Page No. 33 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings".
25. In my view after excluding period from 15.3.2020 to 28.2.2022, one year 10 months and 12 days are still balance qua the said bill which if I add on 28.2.2022 then the period would expire on 9.1.2024 whereas the suit has been filed on 21.2.2023 thus suit is within Suit (Com.) No. 321/2023 Page No. 34 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal the limitation from the first bill itself and when first bill is within the limitation, all the invoices which have been raised after that date, will also be within the period of limitation. Hence, I held that the present suit is within the period of limitation. Issue No. 1 is decided in favour of the plaintiff and against the defendant.
ISSUES NO. 2Whether the present suit has not been filed by duly authorized person? OP Parties.
26. The plaintiff in the plaint has deposed that the present suit has been filed by the plaintiff through its constituted attorney Sh. Dinesh Kumar Tripathi who was duly authorized by the partnership firm vide special power of attorney dated 15.11.2022. In order to prove the said contention, the plaintiff has examined Sh. Dinesh Kumar Tripathi has PW1. He in his evidence led through affidavit Ex. PW1/A has reiterated that he was duly constituted attorney in the present case vide special power of attorney dated 15.11.2022 which he proved as Ex. PW1/2. In his cross examination, he deposed that the special power of attorney Ex. PW1/2 was executed in his presence. He does not remember that the same has been notarized. He admitted that the power of attorney does not bear any date of its execution or the date of notarization. He deposed that Sh. Subhojit Bose has signed on the said special power of attorney in his presence at point A. He denied the suggestion that the said signatures is not of Subhojit Bose. He denied the suggestion that the power of attorney Ex. PW1/2 is forged and fabricated document or Suit (Com.) No. 321/2023 Page No. 35 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal that he has no authority to sign and file suits on behalf of plaintiff firm.
27. On perusal of special power of attorney Ex. PW1/2, it is evident that the same has been issued by Subhojit Bose in the capacity of Managing Partner of the plaintiff firm. Plaintiff has also proved the partnership deed of plaintiff firm as Ex. PW1/1 from which it is evident that Subhojit Bose is one of the partner in the said firm thus he was fully authorized to give power of attorney to appoint Sh. Dinesh Kumar Tripathi as AR of the plaintiff firm.
28. In my view, once PW1 has deposed that the special power of attorney Ex. PW1/2 was executed by Subhojit Bose, the onus is shifted upon the defendant to prove that the same is not executed by him in view of section 101 to 103 of Indian Evidence Act. Sections 101 and 102 of Indian Evidence Act deal with burden of proof which are reproduced as under:
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.Suit (Com.) No. 321/2023 Page No. 36 of 61
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102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B".
29. Whereas Section 103 of The Indian Evidence Act are provides that burden of proof of a particular facts on that person who wants courts to believe existence of any particular facts. Section 103 is reproduced as under : "103.The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
"106.When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
30. Hon,ble Supreme Court in Raghavamma and Anr. Vs. A. Chenchamma and Anr. (referring to Sections 101 to 103 explained the distinction between burden of proof and onus of proof in the following terms :
"There is an essential distinction between Burden of proof Suit (Com.) No. 321/2023 Page No. 37 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
(16) The burden of proof that lies under Section 101 and that under Section 102 of the Evidence Act is distinguishable : the former has been described as a "legal" or "persuasive burden" and the latter as the evidential burden or as the "burden of adducing evidence" (Phipson). It is easy enough to say concerning the legal or persuasive burden that it lies on whichever party would fail if no evidence were given on either side or if the allegation to be proved is struck out of the record. But, as Rupert Cross points out "A moment's reflection should suffice to show that these tests arc only applicable to the evidential burden ; they cannot apply to the legal burden in all cases." "As a matter of commonsense", "the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or that prosecutor in criminal proceedings"; it would go to such length as the burden of proof of the assertion still resting upon the plaintiff even "if the assertion of a negative is an essential part of the plaintiff's case." (Vide Bowen, L.J. in Abrath v. North Eastern Rail, Co., 1883 Ii Q.B.D. 440 at p. (457 a decision which was affirmed by the House of Lords in (1886) Ii A.C.
247). Cross explains the difficulty which may sometimes arise with regard to the question whether an assertion is Suit (Com.) No. 321/2023 Page No. 38 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal essential to a party's case or that of the adversary by referring to the decision of the House of Lords in Joseph Constantine Steamship Line, Lid. v. imperial Smelting Corporation, Ltd. (1942 A.C. 154) (9). In that case the charterer of the ship claimed damages from the owners for failure to load ; the owners pleaded frustration of the contract by reason of the destruction of the ship owing to an explosion. The question of fact for determination was whether the explosion had been caused by the fault of the owner, but the evidence was scanty on this question. The House of Lords held that thc plaintiff had the legal burden of proving default when frustration of the contract was pleaded. In some cases, as Cross explains, it becomes necessary to ascertain the "legal burden of proof" even after consulting the precedents concerned with the various branches of substantive law. Even greater difficulty arises when the existence or nonexistence of any fact in issue may be known for certain by one of the parties and this is often said to have an important bearing on the incident of burden of proof of that fact".
31. On perusal of testimony of defendant / DW1 Vijay Bansal led through evidence by way of affidavit Ex. DW1/A, it is evident that though he has deposed that Sh. Dinesh Kumar Tripathi has no authority to file, sign the suit on behalf of the plaintiff firm and special power of attorney Ex. PW1/2 is forged and fabricated but he did not depose on what basis he has alleged that signature of Subhojit Bose is forged. In my view mere oral deposition of DW1 that the same is not having signature of Subhojit Bose is not sufficient but he has to lead some Suit (Com.) No. 321/2023 Page No. 39 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal positive evidence to prove the same like handwriting expert report of comparison of Shubojit Bose signature on authority letter of PW1 with admitted handwriting of Shubojit Bose. But the defendant has not produced any document having signature of Subhojit Bose to prove that the signature on special power of attorney Ex. PW1/2 is different than on that document and further has not examined any witness to corroborate his allegation that the signature on the special power of attorney Ex. PW1/2 are forged. I do not see any reason why PW1 would forged the signature of Subhojit Bose to file the present suit. He has no personal gain by doing so. there is no ground to disbelieve the testimony of PW1 that the special power of attorney Ex. PW1/2 bears signatures of Subhojit Bose.Therefore I do not find testimony of DW1 reliable on the aspect of forgery committed by PW1 qua special power of attorney and found testimony of PW1 more reliable.
32. In view of the aforesaid discussion, I held that the plaintiff is able to prove that Sh. Dinesh Kumar Tripathi is duly authorized to act on behalf of the plaintiff and to file suit on behalf of the plaintiff firm and depose on behalf of the plaintiff in the present case. Therefore I decide issue No. 2 in favour of the plaintiff and against the defendant.
ISSUES NO. 3.
Whether this court has no territorial jurisdiction to entertain the instant suit? OP Parties.
33. It is argued by Ld. Counsel for the defendant that this court has no territorial jurisdiction because the plaintiff has supplied goods Suit (Com.) No. 321/2023 Page No. 40 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal from Noida and defendant is running his business at Sirsa, Haryana thus no part of cause of action arose within the territorial jurisdiction of this court hence this court has no territorial jurisdiction to entertain the present suit.
34. On the other hand, Ld. Counsel for the plaintiff has argued that from the testimony of PW1, it is evident that the plaintiff has its office at 4271/3, Ansari Road, Darya Ganj, Delhi and the books were sent to the defendant from the said office therefore part cause of action has arose within the territorial jurisdiction of this court hence this court has the territorial jurisdiction to entertain the present suit.
35. I have considered the submissions and have gone through the record.
36. Section 20 of the Code of Civil Procedure provides as under : "Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on Suit (Com.) No. 321/2023 Page No. 41 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c)The cause of action, wholly or in part, arises".
37. As far as clause (b) and (c) are concerned, undisputedly the defendant is not working for gain or residing within the territorial jurisdiction of this court therefore this court's jurisdiction will be made out only when cause of action either partly or wholly arose within the jurisdiction of this court and there is a agreement between parties conferring jurisdiction to Court at Delhi.
38. The onus is upon the plaintiff to prove that the cause of action partly or wholly arose within the jurisdiction of this court. The plaintiff in the plaint has deposed that the plaintiff is engaged in the business of publishing and distributing books having its registered office at 4271/3, Ansari Road, Daryaganj, Delhi - 110002 and has further deposed that the plaintiff sold required quantity of books for Rs. 4,88,404/ to the defendant and original bill of supply, logistic / transporter receipts, gate pass, worksheets and books order received by plaintiff through email from defendant has been filed. He further stated in the plaint that the orders were placed by the defendant on the plaintiff via emails in scanned letterhead of firm of defendant and over phone and the invoice raised by plaintiff's firm restricts the jurisdiction of disputes to Delhi only as the plaintiff has its registered address within the jurisdiction of Delhi.
Suit (Com.) No. 321/2023 Page No. 42 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
39. In order to prove the said fact, as stated above, the plaintiff has examined Sh. Dinesh Kumar Tripathi, its AR as PW1 who in his examination in chief has deposed that the plaintiff has been regularly supplying the books to the defendant as per his requirement and invoices of the said transaction were raised by the plaintiff which he proved as Ex. PW1/3, Ex. PW1/3/5, Ex. PW1/3/6, Ex. PW1/3/11, Ex. PW1/3/15, Ex. PW1/3/20, Ex. PW1/3/25, Ex. PW1/3/29, Ex. PW1/3/34, Ex. PW1/3/39, Ex. PW1/3/44, Ex. PW1/3/49, Ex. PW1/3/54, Ex. PW1/3/59, Ex. PW1/3/64, Ex. PW1/3/70, Ex. PW1/3/75, Ex. PW1/3/79, Ex. PW1/3/83 and Ex. PW1/3/88 and he further proved that the gate passes Ex. PW1/3/1, Ex. PW1/3/8, Ex. PW1/3/13, Ex. PW1/3/17, Ex. PW1/3/22, Ex. PW1/3/27, Ex. PW1/3/31, Ex. PW1/3/36, Ex. PW1/3/41, Ex. PW1/3/46, Ex. PW1/3/51, Ex. PW1/3/56, Ex. PW1/3/61, Ex. PW1/3/66, Ex. PW1/3/72, Ex. PW1/3/77, Ex. PW1/3/81, Ex. PW1/3/85 and Ex. PW1/3/90, worksheets Ex. PW1/3/2, Ex. PW1/3/9, Ex. PW1/3/14, Ex. PW1/3/18, Ex. PW1/3/23, Ex. PW1/3/28, Ex. PW1/3/32, Ex. PW1/3/37, Ex. PW1/3/42, Ex. PW1/3/47, Ex. PW1/3/52, Ex. PW1/3/57, Ex. PW1/3/62, Ex. PW1/3/67, Ex. PW1/3/73, Ex. PW1/3/78, Ex. PW1/3/82 and Ex. PW1/3/86, purchase orders Ex. PW1/3/3, Ex. PW1/3/10, Ex. PW1/3/19, Ex. PW1/3/24, Ex. PW1/3/33, Ex. PW1/3/38, Ex. PW1/3/43, Ex. PW1/3/48, Ex. PW1/3/53, Ex. PW1/3/58, Ex. PW1/3/63, Ex. PW1/3/68, Ex. PW1/3/69, Ex. PW1/3/74, Ex. PW1/3/87 and Ex. PW1/3/92.
40. In his cross examination, he stated that the goods were delivered from the Daryaganj office cum godown of the plaintiff though Suit (Com.) No. 321/2023 Page No. 43 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal he admitted the suggestion that on none of the invoices, Daryaganj address is mentioned and voluntarily deposed that these invoices were prepared from Noida office of the plaintiff. He also admitted that the gate passes also bear the address of Noida. He denied the suggestion that the goods were not supplied from Darya Ganj, Delhi. Further he deposed that the purchase orders from defendant were received on the official e mail ID of the plaintiff firm. Plaintiff in order to prove that the goods were supplied from his office at Delhi has also proved transport receipts.
41. From the said transport receipts Ex. PW1/3/7, Ex. PW1/3/12, Ex. PW1/3/16, Ex. PW1/3/21, Ex. PW1/3/26, Ex. PW1/3/35, Ex. PW1/3/40, Ex. PW1/3/45, Ex. PW1/3/50, Ex. PW1/3/55, Ex. PW1/3/60, Ex. PW1/3/65, Ex. PW1/3/71, Ex. PW1/3/80, Ex. PW1/3/84, Ex. PW1/3/89, it is evident the said transport receipts are issued from the offices situated with in the jurisdiction of this Court and only two transport receipt receipt the address of transport is not of NOIDA thus, I find argument of Ld. Counsel for the plaintiff convincing that the plaintiff has first called the books from its Noida office to its office at Delhi for delivery to defendant and that is why the gate pass bears the address of destination of Haryana and from its office at Delhi, plaintiff supplied goods to the defendant hence, it can be said that part cause of action arose within the territorial jurisdiction of this court otherwise why the plaintiff would engage the transport company having its office at Naya Bazar, Delhi to transport the goods and instead would have engage only the transport company having its base in Noida therefore I find force that plaintiff has first call the books / goods from Noida and thereafter sold Suit (Com.) No. 321/2023 Page No. 44 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal the goods to the defendant through aforesaid transports.
42. As far as testimony of defendant / DW1 is concerned, in his examination in chief led through affidavit Ex. DW1/A, he has only deposed that the orders were placed from Haryana at Noida office of plaintiff and goods were supplied from Noida office of plaintiff to Haryana as evident from the bill and gate pass but the defendant in his testimony has not deposed that the goods were not received from the transport company as mentioned in the transport receipts. Therefore in these circumstances, in my view I found testimony of PW1 more reliable by preponderance of probability that the orders of the books were placed by the defendant through various modes at plaintiff's office at Darya Ganj, Delhi and further the plaintiff has supplied goods from said office to defendant, therefore, I held that part cause of action arose within the territorial jurisdiction of this court and therefore, this court has the territorial jurisdiction to entertain the present suit. Issue No. 3 is decided in favour of the plaintiff and against the defendant.
ISSUES NO. 4.
Whether the plaintiff is entitled for recovery of the suit amount of Rs. 4,88,404/? OPP.
43. The plaintiff in the plaint and through testimony of PW1 has deposed that the plaintiff has sold the goods through invoices Ex. PW1/3, Ex. PW1/3/5, Ex. PW1/3/6, Ex. PW1/3/11, Ex. PW1/3/15, Ex. PW1/3/20, Ex. PW1/3/25, Ex. PW1/3/29, Ex. PW1/3/34, Ex. PW1/3/39, Ex. PW1/3/44, Ex. PW1/3/49, Ex. PW1/3/54, Ex. PW1/3/59, Ex.
Suit (Com.) No. 321/2023 Page No. 45 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal PW1/3/64, Ex. PW1/3/70, Ex. PW1/3/75, Ex. PW1/3/79, Ex. PW1/3/83 and Ex. PW1/3/88 and defendant has made part payments and a sum of Rs. 4,88,404/ is due as reflected in the ledger Ex. PW1/9/3.
44. From the suggestion given by the defendant's counsel that the goods were not supplied through Daryaganj office from Noida itself, defendant has admitted supply of goods through aforesaid invoices.
45. The defendant in his written statement has nowhere stated that the goods through aforesaid invoices were not supplied to him by plaintiff. Further from para 9 of the preliminary submissions of written statement, it is evident that the defendant has admitted supply of goods by the plaintiff and also admitted that the sum of Rs. 4,88,404/ was due as price of the books not paid by him though ofcourse according to defendant said sum he was not liable to pay for the reasons as mentioned above. His only defence is as under : a. Plaintiff will give a discount of 45% on all payments and if said discount is given, an amount of Rs. 2,30,089/ become payable to the defendant.
b. Plaintiff was not authorized to change the rates after distributing sample book's rates and there is difference of Rs. 86,047/ after giving due credit of 45% discount.
c. Defendant returned books amounting to Rs. 2,02,619/ vide debit note dated 18.10.2019 which was not credited in the statement of account.
d. Plaintiff agreed to give net turn over discount of 5% Suit (Com.) No. 321/2023 Page No. 46 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal each year and on this account, Rs. 74,525/ become payable by the plaintiff to the defendant.
e. Plaintiff has to give total credit of Rs. 5,93,280/ to the defendant after deducting amount of Rs. 4,88,404/ which plaintiff has claimed and thus, defendant is entitled to Rs. 1,04,876/ from the plaintiff.
46. The onus is upon the defendant to prove that he is entitled for the discounts as mentioned above and has returned books amounting to Rs. 2,02,619/ as mentioned above and thus not liable to pay the suit amount. To prove the same, Ld. Counsel for the defendant has relied upon the cross examination of PW1 as well as testimony of DW1. He argued that the PW1 in his cross examination has admitted that in the email Ex. PW1/3/3, the discount of 45% is mentioned and he has also admitted that in the invoice Ex. PW1/3, 45% discount was not given. He argued that though PW1 has voluntarily deposed that in the invoice, base discount + quantity discount of 25% of the invoice amount has been mentioned and remaining discount has been credited in the ledger account through credit note but the plaintiff has not proved any such credit note. He further argued that from the testimony of defendant also, it is proved that the plaintiff has not given 45% discount and there is difference of Rs. 2,30,089/ for the discount which was given by the plaintiff if calculating the same @ 45% He further argued that from the testimony of defendant also, it is proved that the plaintiff has not given 45% discount and there is difference of Rs. 2,30,089/ for the discount which was given by the plaintiff if calculating the same @ 45%.
Suit (Com.) No. 321/2023 Page No. 47 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
47. Ld. Counsel for defendant further argued that PW1 has admitted that debit note Ex. PW1/D1 dated 18.10.2019 was received by the plaintiff but from ledger it is evident that the amount of said debit note is not credited in the ledger account by the plaintiff.
48. Ld. Counsel for defendant further argued that PW1 has also admitted that 5% discount is to be given to the defendant with turn over of sale of every year and also admitted that no discount for the years 20192020 was given. He argued that the plaintiff has taken false plea that the goods returned by defendant were more than the goods sold therefore he did not quality for discount for the said year. He further argued that there is no such condition between the parties and plaintiff was liable to pay 5% discount on the sale of total turn over for the year 20192020. and further, if he reduced amount of goods returned then difference of Rs. 26,915/ will be reduced and still there is difference of Rs. 2,30,089/ which the defendant is entitled from the plaintiff.
49. Ld. Counsel for defendant further argued that from the testimony of DW1, it is also proved that the plaintiff has charged rates from the sample book rates which was circulated in the year 2018 as evident from invoice filed by the plaintiff and thus it is proved that Rs. 86,047/ is charged higher by the plaintiff which is liable to be adjusted.
50. Ld. Counsel for defendant further argued that from the testimony of DW1 it is also proved that DW1 returned books amounting to Rs. 2,02,619/ on receipt of debit note dated 18.10.2019 Ex. PW1/D1 which is admitted by PW1 but said amount has not been credited and Suit (Com.) No. 321/2023 Page No. 48 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal further deposed that entries pointed out by PW1 i.e. 27.6.2019 para 23 of evidence affidavit Ex. DW1/A are different from debit note Ex. PW1/D1. He further argued that from the testimony of DW1 which is also proved that the plaintiff has agreed to give discount of 5% of total sale of every year and plaintiff has not given the same.
51. On the other hand, Ld. Counsel for the plaintiff has argued that PW1 has fully clarified in his cross examination that 45% discount was given on the invoice as in the invoice, it is mentioned that bonus discount + quantity discount is 20% or 25% of the invoice amount and the remaining discount has been credited in the ledger account through credit notes and further clarified that the amount of debit note dated 18.10.2019 has been entered into the ledger account vide entries dated 27.6.2019 for amount of Rs. 16,416.55, dated 26.8.2019 for amount of Rs. 42,283.25, dated 20.9.2019 for amount of Rs. 59,112.90, dated 16.10.2019 for amount of Rs. 7697.25 dated 22.10.2019 for amount of Rs. 1,05,761.10, dated 18.12.2019 for amount of Rs. 6446/ and Rs. 56,661/. He further argued that as far as turnover discount is concerned, same could not be given to the defendant for the year 2019 2020 as defendant's total sale was lower than the books returned by him for that year therefore he is not entitled for the turnover discount for the said year. Hence, there is no force in the contention of Ld. Counsel for the defendant that plaintiff is liable to pay a sum of Rs. 1,04,876/ rather plaintiff is entitled for Rs. 4,88,404/.
52. I have considered the submissions and have gone through the record. Since it is admitted by the PW1 that it was agreed by the Suit (Com.) No. 321/2023 Page No. 49 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal plaintiff that 45% discount is to be given on the books print price and 5% discount on total turn out of annual sale is to be given therefore it is to be seen whether said discount was given by plaintiff or not.
53. From the aforesaid invoices relied upon by the plaintiff, it is evident that the plaintiff has given discount for different items it is evident that plaintiff has given discount at various rates on books. Details of discount which are given and which should be given and differences of amount are mentioned in the table below : Bill No. Date Quantity Price Gross Discounted Price to Difference (serial (Rs.) Total price given be after (Rs.) wise) price (Rs.) 45% (Rs.) discount (Rs.) 2456 29.1.2019 120 140 16800 13440 9240 4200 do do 280 360 100800 80640 55440 25200 do do 60 175 10500 8400 5775 2625 do do 280 380 106400 85120 58520 26600 do do 230 390 89700 71760 49335 22425 do do 200 440 88000 70400 48400 22000 do do 200 435 87000 69600 47850 21750 do do 60 250 15000 12000 8250 3750 do do 55 176 9680 7260 5324 1936 do do 255 208 53040 39780 29172 10608 do do 265 264 69960 52470 38478 13992 do do 230 252 57960 43470 31878 11592 do do 220 328 72160 54120 39688 14432 do do 220 356 78320 58740 43076 15664 do do 55 136 7480 4768 4114 654 do do 55 156 8580 5469 4719 750 Suit (Com.) No. 321/2023 Page No. 50 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal do do 55 176 9680 6171 5324 847 199025 2903 13.2.2019 45 360 16200 8910 8910 0 do do 70 360 25200 13860 13860 0 do do 45 380 17100 9405 9405 0 do do 60 380 22800 12540 12540 0 do do 45 390 17550 9652 9652 0 do do 50 390 19500 10725 10725 0 do do 50 540 27000 14850 14850 0 do do 50 435 21750 11962 11962 0 do do 45 360 16200 8910 8910 0 do do 45 315 14175 7796 7796 0 do do 45 390 17550 9652 9652 0 do do 45 164 7380 4059 4059 0 do do 45 172 7740 4257 4257 0 do do 45 184 8280 4554 4554 0 do do 45 208 9360 5148 5148 0 do do 80 208 16640 9152 9152 0 do do 45 264 11880 6534 6534 0 do do 80 264 21120 11616 11616 0 do do 45 252 11340 6237 6237 0 do do 80 252 20160 11088 11088 0 do do 45 328 14760 8118 8118 0 do do 80 328 26240 14462 14432 30 do do 45 356 16020 8811 8811 0 do do 70 356 24920 13706 13706 0 do do 45 216 9720 5346 5346 0 do do 45 212 9540 5247 5247 0 do do 45 208 9360 5148 5148 0 30 Suit (Com.) No. 321/2023 Page No. 51 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal 2904 13.2.2019 120 360 43200 23760 23760 0 do do 120 380 45600 25080 25080 0 do do 120 390 46800 25740 25740 0 do do 120 540 64800 35640 35640 0 do do 120 435 52200 28710 28710 0 NIL 2905 13.2.2019 70 360 25200 13860 13860 0 do do 70 380 26600 14630 14630 0 do do 70 390 27300 15015 15015 0 do do 60 540 32400 17820 17820 0 do do 60 435 26100 14355 14355 0 do do 100 208 20800 11440 11440 0 do do 90 264 23760 13068 13068 0 do do 70 252 17640 9702 9702 0 do do 80 328 26240 14432 14432 0 do do 80 356 28480 15664 15664 0 NIL 3292 19.2.2019 80 360 28800 15840 15840 0 do do 80 380 30400 16720 16720 0 do do 80 390 31200 17160 17160 0 do do 50 540 27000 14850 14850 0 do do 80 208 16640 9152 9152 0 do do 80 264 21120 11616 11616 0 do do 80 252 20160 11088 11088 0 do do 80 328 26240 14432 14432 0 do do 70 356 24920 13706 13706 0 NIL 3590 24.2.2019 50 685 34250 18837 18837 0 do do 50 825 41250 22687 22687 0 do do 50 435 21750 11962 11962 0 Suit (Com.) No. 321/2023 Page No. 52 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal NIL 4213 5.3.2019 65 360 23400 12870 12870 0 do do 65 380 24700 13585 13585 0 do do 65 390 25350 13942 13942 0 do do 60 540 32400 17820 17820 0 do do 60 435 26100 14355 14355 0 do do 60 208 12480 6864 6864 0 do do 55 264 14520 7986 7986 0 do do 60 156 9360 5148 5148 0 do do 55 176 9680 5324 5324 0 do do 50 685 34250 27400 18837 8563 8563 4536 9.3.2019 80 360 28800 15840 15840 0 do do 80 380 30400 16720 16720 0 do do 80 390 31200 17160 17160 0 do do 80 540 43200 23760 23760 0 do do 80 435 34800 19140 19140 0 do do 80 360 28800 15840 15840 0 do do 80 405 32400 17820 17820 0 do do 80 495 39600 21780 21780 0 do do 80 284 22720 12496 12496 0 do do 80 268 21440 11792 11792 0 NIL 5164 16.3.2019 80 360 28800 16272 15840 432 do do 80 380 30400 17176 16720 456 do do 80 540 43200 24408 23760 648 do do 80 435 34800 19662 19140 520 do do 80 685 54800 30962 30140 822 do do 80 825 66000 37290 36300 990 3868 Suit (Com.) No. 321/2023 Page No. 53 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal 5363 19.3.2019 70 540 37800 20790 20790 0 do do 75 435 32625 17943 17943 0 do do 65 685 44525 24488 24488 0 do do 70 825 57750 31762 31762 0 0 5371 19.3.2019 60 323 13920 8769 7656 1113 do do 40 268 10720 6753 5896 857 1970 5468 20.3.2019 25 435 10875 6144 5981 163 do do 20 188 3760 2124 2068 56 do do 20 200 4000 2260 2200 60 do do 20 200 4000 2260 2200 60 do do 20 200 4000 2260 2200 60 do do 20 200 4000 2260 2200 60 do do 20 176 3520 1988 1936 52 do do 20 196 3920 2214 2156 58 do do 20 244 4880 2757 2684 73 do do 20 268 5360 3028 2984 44 do do 20 264 5280 2983 2904 79 do do 4 284 1136 641 625 16 do do 20 291 5820 3288 3201 87 do do 20 294 5880 3322 3234 88 do do 20 294 5880 3322 3234 88 do do 30 390 11700 6435 6435 0 do do 30 360 10800 5940 5940 0 do do 30 380 11400 6270 6270 0 1044 5511 23.3.2019 90 435 39150 21532 21532 0 do do 90 195 17550 9652 9652 0 do do 90 165 14850 8167 8167 0 Suit (Com.) No. 321/2023 Page No. 54 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal do do 90 190 17100 9405 9405 0 do do 90 190 17100 9405 9405 0 do do 90 275 24750 13612 13612 0 do do 90 160 14400 7920 7920 0 NIL 5639 26.3.2019 75 360 27000 14850 14850 0 do do 75 390 29250 16087 16087 0 do do 75 380 28500 15675 15675 0 NIL 5704 27.3.2019 55 360 19800 10890 10890 0 do do 55 380 20900 11495 11495 0 do do 55 360 19800 10890 10890 0 do do 55 390 21450 11797 11797 0 do do 65 284 18460 10153 10153 0 do do 65 268 17420 9581 9581 0 NIL 5768 28.3.2019 30 360 10800 8640 5940 2700 do do 30 380 11400 9120 6270 2850 do do 30 390 11700 9360 6435 2925 do do 25 540 13500 7627 7425 202 do do 20 188 3760 2124 2068 56 do do 16 284 4544 2567 2499 68 do do 20 390 7800 4290 4290 0 do do 30 390 11700 6610 6435 175 do do 15 360 5400 2970 2970 0 do do 30 360 10800 6102 5940 162 do do 45 360 16200 12960 8910 4050 do do 10 380 3800 2090 2090 0 do do 30 380 11400 6441 6270 171 do do 45 380 17100 13680 9405 4275 Suit (Com.) No. 321/2023 Page No. 55 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal do do 80 390 31200 17628 17160 468 do do 45 390 17550 14040 9652 4388 22490 81 3.4.2019 55 405 22275 12251 12251 0 do do 55 495 27225 14973 14973 0 288 21.4.2019 90 540 48600 26730 26730 0 683 30.4.2019 20 284 5680 3124 3124 0 do do 20 268 5360 2948 2948 0 Grand Total 2363711 2126721 236990
54. Though PW1 has deposed in his cross examination that the plaintiff has given based discount + quantity discount which might be 20% or 25% of the invoice amount but the remaining amount has been credited in the ledger account through credit notes. However, on perusal of ledger statement Ex. PW1/3/93 I found that except early payment discount of Rs. 15,000/ on 7.05.2018 & Rs. 22,500/ on 3.04.2019 there is no entry of any discount / credit note in the ledger statement. Plaintiff has failed to prove that remaining amount of discount has been credited through credit note. Therefore, I held that the plaintiff has not given the 45% discount as agreed between the plaintiff and the defendant and therefore, defendant is entitled to Rs. 2,36,990/.
55. As far as discount of 5% on total turnover is concerned.
Suit (Com.) No. 321/2023 Page No. 56 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal PW1 has admitted in his cross examination that 5% discount was to be given on total annual sale. I am agreed with the submission of Ld. Counsel for the plaintiff that defendant would be entitled to discount of total turnover @ 5% when the sale of goods for said particular year is more than the return of goods by defendant in that particular year.
56. From the ledger account statement filed by the plaintiff Ex. PW1/3/93, it is evident that the plaintiff has sold books for a sum of Rs. 23,13,918/ for the year 20182019 and defendant has returned the goods for Rs. 46,702/. Further, from the ledger account statement filed by the plaintiff Ex. PW1/3/94, it is evident that the plaintiff has sold books for a sum of Rs. 60,147/ for the year 20192020 and defendant has returned the goods for Rs. 2,94,376/.
57. In view of the above, I held that since the goods sold by the plaintiff are less than the goods returned by the defendant for the year 20192020 therefore, the defendant is not entitled to the 5% total turnover discount for the said year.
58. Now coming to the next defense of defendant that plaintiff has not credited the amount of book returned. In the written statement, defendant has stated that defendant has returned the books amounting to Rs. 2,02,619/ but plaintiff has not credited the said amount. In his testimony defendant/ DW1 has deposed that following books were returned and credit notes were issued:
Year Date Books returned (Rs.)
20182019 13.11.2018 46702
Suit (Com.) No. 321/2023 Page No. 57 of 61
M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal 20192020 27.6.2019 16416.55 20192020 26.8.2019 42283.35 20192020 20.9.2019 59112.90 20192020 16.10.2019 7697.25 20192020 22.10.2019 105761.10 20192020 18.12.2019 6446 20192020 18.12.2019 56661 341080.15
59. He has relied upon debit note Ex. PW1/D1. In his cross examination no suggestion has been given to DW1 that said goods were not returned by the defendant. Even PW1 in his cross examination has admitted that debit note EXPW1/D1 was received on 18.10.2019. From PW1/ D1 it is evident that defendant has issued debit note no.25 dt. 18.10.2019 for Rs.202619/ regarding return of books. PW1 has further deposed that said debit note was entered in ledger account and amount was credited. He pointed out entry dt. 27.06.2019 for Rs.16165, dated 26.8.2019 for amount of Rs 42,283.25, dated 20.9.2019 for amount of Rs. 59,112.90, dated 16.10.2019 for amount of Rs. 7697.25 dated 22.10.2019 for amount of Rs. 1,05,761.10 dated 18.12.2019 for amount of Rs.6446/and Rs. 56,661/ encircled in red.
Suit (Com.) No. 321/2023 Page No. 58 of 61M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal
60. From perusal of debit note, it is evident that the total books of net value of Rs. 2,02,619/ has been returned. Undoubtedly as suggestion given to PW1 amount of said entries in ledger Ex. PW1/3/93 does not match with dates of debit note Ex. PW1/D1 but I am not agree with the contention of Ld. Counsel for defendant that said entries were of some other different debit notes. From perusal of ledger EX PW1/3/93 it is evident that plaintiff has made credit entries without mentioning any specific debit note. The plaintiff have credited Rs. 1,05,761.10 dated 18.12.2019 for amount of Rs. 6446/and Rs. 56,661/ which is of after the date of debit note EXPW1/D1 whereas the other entries are prior to day of debit note. In my view the entries before the date of debit note cannot be consider as plaintiff cannot make credit entry prior to receiving of debit note but the entries after said date appears to be said debit note EX PW1/D1 and it appears that the plaintiff instead of entering debit note for the single entry has made several entries of the said amount. Defendant neither in the WS not in his testimony has deposed that after said debit note EXPW1/D1 he has returned any books to defendant not has placed any such debit note. Thus, I hold that the plaintiff has only adjusted the amount of Rs. 1,05,761.10 dated 18.12.2019 for amount of Rs. 6446/ and Rs. 56,661/ totaling Rs. 1,68,868/ for return of books out of total books return by defendants, thus plaintiff has not adjusted the amount of Rs. 33,751/.
61. As far as rate difference is concerned, the onus was upon the defendant that there is difference in the rates given by the plaintiff in the year 2018 and the rates supplied by the plaintiff. Though the plaintiff Suit (Com.) No. 321/2023 Page No. 59 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal in the plaint and in his examination in chief has not filed any rate list of 2018 on which plaintiff has agreed to supply the goods to the defendant but the defendant in his cross examination has given rate list Ex. PW1/D1 (44 pages). Further, defendant deposed that the same was obtained from the website of plaintiff but he admitted that the plaintiff has given no document that there will be any change in the price of books which were given as sample and which were actually supplied for sale. In my view, in absence of any specific document, it cannot be said that plaintiff has no right to change rates of books which he has given while supplying sample books and while supplying the goods later on therefore, in my view, defendant is not entitled to claim difference of the rates between the rates on which books were supplied by the plaintiff and the sample rates.
62. In view of the aforesaid, I held that the defendant is only entitled to adjust Rs. 2,70,741/ (33,751 + 2,36,990/) and thus plaintiff is entitle to recover only Rs. 2,17,663/ (4,88,404 - 2,70,741). Issue No. 4 is decided accordingly.
ISSUE NO. 5.
Whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP.
63. Plaintiff has claimed interest @ 18% per annum on the due amount. From the ledger accounts Ex. PW1/9 to Ex. PW1/9/3, it is evident that the defendant used to make payment on account. The plaintiff has not communicated to the defendant that interest will be charged on the delayed payment therefore in my view the plaintiff is not Suit (Com.) No. 321/2023 Page No. 60 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal entitled to said interest on the amount due till demanding the same from defendant. However, since the defendant has deprived the plaintiff from use of its money and cause wrongful loss to the plaintiff, I held that the plaintiff will be entitled to interest @ 12% per annum on the due amount of Rs. 2,17,663/ as held in issue No. 4. Further, the plaintiff has sent legal notice Ex. PW1/5 demanding the due amount on 2.5.2022 which was posted on 4.5.2022 therefore I held that the plaintiff will be entitled to interest @ 12% per annum on the amount of Rs. 2,17,663/ from 4.5.2022 till the date of filing of the suit. Thereafter, the plaintiff will be entitled to said interest on the decretal amount from the date of filing of the suit till the date of decree and thereafter till its realization. Issue No. 5 is decided accordingly.
RELIEF.
64. In view of my findings on aforesaid issues, I pass a decree for recovery of an amount of Rs. 2,17,663/ (Rupees two lacs seventeen thousand six hundred and sixty three only) along with interest @ 12% interest per annum from 4.5.2022 till the date of filing of the suit. Thereafter, the plaintiff will be entitled to said interest on the decretal amount from the date of filing of the suit till the date of decree and thereafter till its realization. Plaintiff is further held entitled to the proportionate costs of suit. Decree sheet be prepared accordingly. File Digitally signed by be consigned to record room. SANJEEV KUMAR SANJEEV KUMAR AGGARWAL AGGARWAL Date: 2024.05.08 16:53:46 +0530 Announced in the open court (Sanjeev Kumar Aggarwal) on 08.05.2024 DJ (Commercial)01, Central, THC/Delhi / 08.05.2024 Suit (Com.) No. 321/2023 Page No. 61 of 61 M/s. Bharati Bhawan (Publishers & Distributors) Vs. Vijay Bansal