Delhi District Court
M/S Priyanshi S vs Mr. Shanu on 28 April, 2025
IN THE COURT OF SHRI PANKAJ GUPTA:
DISTRICT JUDGE (COMMERCIAL COURT)-01,
SOUTH-WEST DISTRICT, DWARKA COURTS :
NEW DELHI
CS (COMM) NO. 21/2024
CNR No. DLSW01-000307-2024
In the matter of :
M/s. Priyanshi's,
Mrs. Archana Mittal (Proprietrix),
through her authorized representative, Mr. Vijay Poddar,
Office at:
Plot No. 13, Vaishali, Gali No. 1,
New Delhi-110045.
..........PLAINTIFF
versus
Mr. Shanu,
Proprietor of M/s. Shifa Fashion,
124/10B, Shiv Mandir Wali Gali,
Near Suhan Allah Masjid,
Maujpur, New Delhi- 110053.
...........DEFENDANT
Date of Institution : 11.01.2024
Date when the case reserved
for Judgment : 28.04.2025
Date of Judgment : 28.04.2025
JUDGMENT
1. The plaintiff filed the present suit for recovery of Rs. 12,29,088/- along with interest from the date of filing of the suit till realization of the money.
2. In the plaint, it is stated that the plaintiff, a proprietorship concern of Ms. Archna Mittal, is engaged in the garment business. Ms. Archna Mittal has authorized Sh. Vijay Poddar to institute the present suit on behalf of the plaintiff. It is also stated that the defendant, the proprietor of M/s. Shifa Fashion, is also engaged in the garment business.
CS (Comm) No. 21/2024 Page No. 1 of 20M/s Priyanshi's Vs. Shanu In October 2020, the defendant approached the plaintiff with a request to supply the grey rayon plain etc. (the goods). The plaintiff agreed to the same through the verbal communication that took place between the parties in October 2020. Accordingly, the terms and conditions of the service and payment were agreed upon between the parties. As per the oral agreement, the plaintiff supplied the goods to the defendant and raised the invoices dated 22.10.2020, 26.10.2020, and 05.11.2020 for the total amount of Rs. 12,29,088/- and paid the tax amount. However, the defendant failed to make the payment of the invoice amount despite several requests made by the plaintiff. Left with no option, vide legal notice dated 09.08.2022, the plaintiff called upon the defendant to pay the outstanding amount but of no use. Hence, the present suit.
3. Notice of the suit was served upon the defendant. In response thereto, the defendant filed the written statement (WS) and objected that this court does not have the territorial jurisdiction to entertain the present suit and that the suit is barred by the period of limitation. It is also stated that the plaintiff has not filed the present suit through the authorized person. On merit, it is stated that the defendant had neither placed any purchase order nor approached the plaintiff for the supply of the goods. Accordingly, the plaintiff had never sold and delivered any goods to the defendant. As such, the plaintiff and the defendant had no business relationship. Hence, the tax invoices relied upon by the plaintiff are forged and fabricated documents. The defendant denied the receipt of the legal notice. Hence, it is prayed that the suit may be dismissed.
CS (Comm) No. 21/2024 Page No. 2 of 20M/s Priyanshi's Vs. Shanu
4. The plaintiff filed the replication to the WS and reiterated the averments made in the plaint.
5. The following issues were framed:-
1. Whether this court does have the territorial jurisdiction to entertain the present suit? OPD
2. Whether the plaintiff is entitled to decree of recovery of Rs. 12,29,088/- as prayed for, in the plaint? OPP
3. If answer to issue no. 3 is in affirmative, whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP
4. Relief.
6. The plaintiff examined Vijay Poddar as PW1 and his affidavit in evidence is Ex.PW1/A. He proved the following documents:
1. Original Authority Letter Ex. PW-1/1.
2. Computer-generated copy of invoice no. PRI-056/2020- 21 dated 22.10.2020 Ex. PW-1/2.
3. Computer-generated copy of invoice no. PRI-057/2020- 21 dated 26.10.2020 Ex. PW-1/3.
4. Computer-generated copy of invoice no. PRI-061/2020- 21 dated 05.11.2020 Ex. PW-1/4.
5. Computer-generated copy of E-way bill no. 7011 5275 2365 dated 22.10.2020 Ex. PW-1/5.
6. Computer-generated copy of E-way bill no. 7711 5349 8357 dated 26.10.2020 Ex. PW-1/6.
7. Computer-generated copy of E-way bill no. 7511 5567 2106 dated 05.11.2020 Ex. PW-1/7.
8. Computer-generated copy of invoice no. PRI-056/2020- CS (Comm) No. 21/2024 Page No. 3 of 20 M/s Priyanshi's Vs. Shanu 21 dated 22.10.2020 Ex. PW-1/8(colly).
9. Computer-generated copy of invoice no. PRI-057/2020- 21 dated 26.10.2020 Ex. PW-1/9(colly).
10. Computer-generated copy of invoice no. PRI-061/2020- 21 dated 05.11.2020 Ex. PW-1/10(colly).
11. Certificate u/s 65B of the Indian Evidence Act, 1872 Ex. PW-1/11.
12. Copy of legal notice dated 09.08.2022 Ex. PW-1/12(colly).
13. Non-starter report Ex. PW-1/13.
7. The plaintiff also examined Manish Mittal as PW2 and his affidavit in evidence is Ex.PW2/A.
8. PW1 and PW2 were cross-examined by counsel for the defendant.
9. The defendant examined Mohd. Zakir as DW1 and his affidavit by way of evidence is Ex.DW1/A.
10. DW-1 was cross-examined by counsel for the plaintiff.
11. I have heard counsel for the plaintiff and counsel for the defendant and have perused the material available on record.
ISSUES NO. 112. During the course of arguments, counsel for the defendant has not pressed the issue no. 1. As such, the issue no. 1 is decided in favour of the plaintiff and against the defendant.
CS (Comm) No. 21/2024 Page No. 4 of 20M/s Priyanshi's Vs. Shanu ISSUES NO. 2 AND 3
13. Issues no. 2 and 3 are taken up together as they involve a common discussion.
14. At the outset, counsel for the defendant pleaded that the plaintiff, a sole proprietorship concern, has filed the present suit in its own name. Since, the sole proprietorship concern is not a juristic person, hence, the suit is not maintainable in law.
15. On the contrary, counsel for the plaintiff pleaded that though the plaintiff is a sole proprietorship concern, but it has filed the present suit through its proprietrix Archna Mittal. Hence, the present suit is maintainable in law.
16. In WS, the defendant has taken the specific objection to this effect. Though, no specific issue has been pressed to this effect, but during the course of the arguments, counsels for both sides addressed the arguments on the legal issue.
17. In the judgment titled "Svapn Constructions vs Idpl Employees Cooperative Group", reported in 127(2006)DLT80, the Delhi High Court held:
"16. The petition has been filed in the name of M/s Svapn Constructions and not in the name of Shri.A. K. Khanna its sole proprietor. In the petition filed by the petitioner, no prayer has been made seeking amendment to sue in the name of the sole proprietorship firm. Even according to the averments made in the petition, though it is stated that Mr.A.K. Khanna is the sole proprietor of the firm, M/s.Svapn CS (Comm) No. 21/2024 Page No. 5 of 20 M/s Priyanshi's Vs. Shanu Construction, however, no permission has been sought to sue in the name of the sole proprietorship firm. If the sole proprietorship firm is not a legal entity, the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm and not in the name of sole proprietorship firm. Considering it from any point, the inevitable inference is that a petition in the name of a sole proprietorship firm's name which is not a legal entity is not maintainable.
17. Therefore, in the facts and circumstances, the petition which has been filed by a sole proprietorship firm, which is not a legal entity, is not maintainable and it is, therefore, dismissed......"
18. The present case is squarely covered by the above- cited judgment because in the present suit, the sole proprietorship firm, which is not a legal entity, as a plaintiff has filed the present suit in its own name and therefore, the suit is not maintainable in law.
19. On merits, in a nutshell, the case of the plaintiff is that in pursuance to an oral agreement was entered into between the plaintiff and the defendant, the plaintiff supplied the goods to the defendant and raised the invoices dated 22.10.2020, 26.10.2020 and 05.11.2020 for the total amount of Rs. 12,29,088/-. However, the defendant failed to make the payment despite several requests and receipt of the legal notice dated 09.08.2022.
20. On the contrary, the case of the defendant is that no oral agreement was entered into between the parties.
CS (Comm) No. 21/2024 Page No. 6 of 20M/s Priyanshi's Vs. Shanu Accordingly, there was no occasion for the plaintiff to supply the goods to the defendant and raise the invoices. As such, the tax invoices relied upon by the plaintiff are forged and fabricated documents.
21. According to the plaintiff, in October 2020, an oral agreement was entered into between the parties whereby the plaintiff agreed to supply the goods to the defendant. However, in the entire plaint, the plaintiff has not mentioned the specific date and time when the defendant approached it with the request to supply the goods; and when the oral agreement related to the subject transaction was entered into between the parties and its terms and conditions. The plaintiff has also not mentioned what quantity of the goods was ordered by the defendant to be supplied by it and what rate was agreed between the parties. The plaintiff has also not mentioned the period within which the goods were to be supplied by him to the defendant.
22. According to the plaintiff, the oral agreement was entered into between the plaintiff and the defendant namely Shanu, the proprietor of M/s Shifa Fashion.
23. The plaintiff filed the present suit in the name of M/s. Priyanshi's claiming Ms. Archna Mittal as its proprietrix. However, the plaintiff has not filed any documents to prove the said fact.
24. In the memo of parties, the plaintiff has mentioned its address as Plot no. 13, Vaishali, Gali no. 1, New Delhi-110045. PW2 in his cross-examination proved the document Ex.PW2/1 wherein the address of the plaintiff is CS (Comm) No. 21/2024 Page No. 7 of 20 M/s Priyanshi's Vs. Shanu mentioned as Ground Floor, RZ-23, Dabri Extension, Main Palam Road, New Delhi-110045. Further, in the authority letter dated 01.07.2023 Ex.PW1/1 which is drawn on the letterhead of the plaintiff firm, its addresses are mentioned as registered office at Ground Floor, RZ-23, Dabri Extension, Main Palam Road, New Delhi-110045 and its branch office at Plot no. 7, 31/9, Matiayala Village, (Behind DPS), New Delhi-110059. However, both addresses are not mentioned in the memo of parties filed by the plaintiff and the invoices relied upon by him. The plaintiff has failed to mention the source of its address mentioned in the invoices and the memo of parties. On the other hand, the address mentioned in the invoices and the memo of parties finds no mention in the letterhead on which authority letter Ex.PW1/1 was drawn. It is nowhere the case of the plaintiff that the addresses mentioned in the document Ex.PW2/D1 and Ex. PW1/1 are its additional addresses. As such, the identity of the plaintiff and its place of business are doubtful.
25. Now, the question arises who is Shanu, the proprietor of M/s. Shifa Fashion.
26. In para no. 2 of the plaint, it is pleaded that Shanu is the sole proprietor of Shifa Fashion. However, in the cross- examination of DW1 (Mohd. Zakir) one suggestion was given by counsel for the defendant which he denied that he introduced himself to the plaintiff with his nickname Shanu. According to the said suggestion, Shanu is not the real name of the proprietor of the firm. However, no such plea is taken in the plaint. Further, in the cross-examination CS (Comm) No. 21/2024 Page No. 8 of 20 M/s Priyanshi's Vs. Shanu of DW1 one more suggestion was given by counsel for the defendant to which he replied that neither he nor his brother namely Sayeed has the nickname Shanu. As such, the plaintiff himself is not sure about the identity of Shanu. Meaning thereby, the plaintiff himself is not sure about the identity of the proprietor of the defendant firm. In the given circumstances, it is highly doubtful that the alleged oral agreement was entered into between the plaintiff and Shanu being the proprietor of the defendant firm. In view of the foregoing discussions, it can be held that the plaintiff has failed to prove that an oral agreement was executed between the plaintiff and the defendant relating to the subject transaction.
27. In the plaint, the plaintiff has repeatedly pleaded that it supplied the goods to the defendant and raised 03 invoices i.e. invoice dated 22.10.2020 Ex.PW1/2, invoice dated 26.10.2020 Ex.PW1/3 and invoice dated 05.11.2020 Ex.PW1/4 for the total amount of Rs. 12,29,088/-.
28. Counsel for the defendant specifically denied that the plaintiff supplied the goods to the defendant and raised the invoices Ex.PW1/2 to Ex.PW1/4 upon the defendant.
29. In cross-examination of DW1, one suggestion was given by counsel for the plaintiff that the defendant placed the purchased order upon the plaintiff and against that, the plaintiff supplied the goods to the defendant. In para 16 of the plaint, the plaintiff pleaded as to when the cause of action arose in its favour and against the defendant, and in para 17 of the plaint, the plaintiff pleaded as to how this court has the territorial jurisdiction to entertain the present CS (Comm) No. 21/2024 Page No. 9 of 20 M/s Priyanshi's Vs. Shanu suit. However, both paragraphs are completely silent that the defendant placed any purchase order upon the plaintiff. In fact, the plaint is completely silent that the defendant placed any purchase order upon the plaintiff. As such, the said suggestion is beyond pleading.
30. Counsel for the plaintiff pleaded that the plaintiff supplied the goods to the defendant on verbal communication. However, it is not disclosed as to when the said verbal communication took place and between whom because as held above, the identity of Shanu is highly doubtful. As such, the plaintiff has failed to prove against which order it supplied the goods to the defendant and raised the invoices.
31. In view of the foregoing discussion, it can be held that no purchase order for the supply of the goods was placed by the defendant upon the plaintiff.
32. To prove its case, the plaintiff examined PW1 and PW2.
33. In the present suit, PW1 deposed as the authorized representative of the plaintiff firm based on the authority letter dated 01.07.2023 Ex.PW1/1. As mentioned above, the plaintiff has failed to lead any evidence to prove that it is the proprietorship concern of Ms. Archna Mittal or that Archna Mittal is the proprietrix of the plaintiff firm. Further, the plaintiff has not examined the author of the authority letter Ex.PW1/1 i.e. Archna Mittal who had signed that letter. Also that letter does not bear the signature of the authorized representative namely Bijay Poddar and that of Archna CS (Comm) No. 21/2024 Page No. 10 of 20 M/s Priyanshi's Vs. Shanu Mittal as the attestor of the same. Hence, it can be held that the plaintiff has failed to prove PW1 is authorized to sign, verify and institute the suit on its behalf. Not the least, PW1 in his cross-examination deposed that he had not dealt with the subject transaction with the defendant. Hence, it can be held that PW1 is not competent to depose to the facts related to the subject transaction.
34. Counsel for the plaintiff also pleaded that in the cross- examination of PW1, counsel for the defendant had not given any suggestion that he was not authorized to institute the present suit and to depose in the present suit. There is no substance in the plea raised by counsel for the plaintiff because the initial onus to prove the same was upon the plaintiff. However, in view of the foregoing discussion, it can be held that the plaintiff has failed to discharge the said onus in the present case.
35. PW1 in his cross-examination deposed that Manish Mittal (PW2) used to look after the subject transaction on behalf of the plaintiff. PW2 husband of Ms. Archana Mittal, in his affidavit by way of evidence also stated that he on behalf of his wife and proprietrix of the plaintiff namely Ms. Archana Mittal used to deal with the defendant in respect of the orders placed by it upon the plaintiff and used to supply the goods to the defendant. However, the plaint filed by the plaintiff is completely silent on this effect. As such, PW2 by his affidavit Ex.PW2/A has pleaded the facts which are beyond pleadings. Further, in the plaint, it is nowhere stated that the proprietrix of the plaintiff firm had authorized PW2 or PW2 used to look after the business of that firm or had CS (Comm) No. 21/2024 Page No. 11 of 20 M/s Priyanshi's Vs. Shanu dealt with the defendant in the subject transaction. Also, PW2 has shown his ignorance about the material facts put up by counsel for the defendant in his cross-examination. Therefore, it can be held that PW2 is also not competent to depose to the facts relating to the subject transaction in the present matter.
36. Counsel for the plaintiff pleaded that the plaintiff has filed GST paid invoices and corresponding E-way bills which shall be deemed to be sufficient proof of actual delivery of goods to the defendant.
37. The plaintiff has relied upon the invoices Ex.PW1/2 to Ex.PW1/4 to prove that he supplied the goods to the defendant. According to the plaintiff that those invoices are computer-generated invoices. As such, it is the electronic record within the meaning of Bhartiya Sakshya Adhiniyam, 2023 (BSA). Hence, the plaintiff has to file the certificate under Section 63 of BSA in support of the said invoices which is not filed on record. Instead, the plaintiff has filed the certificate under Section 65B of the Indian Evidence Act, 1872 (IEA), which was repealed w.e.f. 01.07.2024. Even, in the said certificate, the plaintiff has not given the particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer. Even, the make of the computer and the printer is not mentioned in the entire affidavit. As such, the said affidavit does not fulfill the mandatory condition either of section 65B of IEA or Section 63 of BSA. The plaintiff has also not filed the mandatory certificate under Order 11 Rule 6 of the Commercial Courts CS (Comm) No. 21/2024 Page No. 12 of 20 M/s Priyanshi's Vs. Shanu Act, 2015 (CCA). Therefore, it can be held that the invoices Ex.PW1/2 to Ex.PW1/4 are inadmissible in evidence.
38. Regarding the delivery of the goods, the plaintiff has not led any evidence to prove which vehicle was used for the delivery of the goods to the defendant. In the entire plaint, it is not even mentioned as to when the plaintiff dispatched the goods and when those goods reached the defendant's destination. The plaintiff has not filed any acknowledgment of receipt of the goods by or on behalf of the defendant.
39. In law, no sale of a movable article can be said to be completed unless the delivery happens and unless the buyer gets the delivery of the goods purchased, he is not required to pay for the goods. Therefore, the duty of buyer of a good to pay up and right of a seller to receive the value of the good arise only on the 'date of delivery of goods'. Consequently, delivery of the goods is a mandatory precondition for a seller of a good to establish his right to file a suit for recovery of unpaid bills.
40. Sale of goods is governed by the Sale of Goods Act, 1930 (SoGA), Section 31 of SoGA places the entire duty on the seller to ensure that the goods sold are delivered to the buyer and provides as under:
Section 31: Duties of Seller and Buyer "It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale."CS (Comm) No. 21/2024 Page No. 13 of 20
M/s Priyanshi's Vs. Shanu
41. Section 33 defines Delivery i.e. "Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf."
42. In Section 36 of SoGA deals with the manner of delivery and provides:
(1) "Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, goods sold are to be delivered at the place at which they are at the time of the sale, and goods agreed to be sold are to be delivered at the place at which they are at the time of the agreement to sell, or, if not then in existence, at the place at which they are manufactured or produced.
(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. (3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller CS (Comm) No. 21/2024 Page No. 14 of 20 M/s Priyanshi's Vs. Shanu to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf:
Provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.
(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller.
43. In the present case, no separate written MOU or an agency-ship contract between the parties to govern the mode of carrying out business. Admittedly, no communication was exchanged between the parties as to the mode of delivery and other related conditions.
44. Section 9 of the Carriage by Road Act, 2007 provides Goods Receipt
1. A Common Carrier shall, a) in case where the goods are to be loaded by the consignor, on the completion of such loading; or b) in any other case, on the acceptance of the goods by him, issue a goods receipts in such form and manner as may be CS (Comm) No. 21/2024 Page No. 15 of 20 M/s Priyanshi's Vs. Shanu prescribed.
2. The goods receipt shall be issued in triplicate and the original shall be given to the consignor.
3. The goods receipt shall be prima facie evidence of the weight or measure and other particulars of the goods and the number of packages stated therein.
4. The goods receipt shall include an undertaking by the common carrier about the liability under Section 10 or Section 11
45. Admittedly, in the present case, no goods receipt as mandated by Section 9 of Carriage by Roads Act, 2007 has been filed relied or proved by plaintiff on record. In the absence thereof, it can be held that the plaintiff has failed to prove the actual delivery of goods to a Carrier of Goods at all which is a prerequisite for successful prosecution of a money suit in lieu of goods supplied
46. In view of the foregoing discussion, it can be held that there is no document to show that the goods were delivered or were acknowledged to have been received by the buyer. Invoices alone do not prove delivery of the goods as mandated under Section 31, 33 and 39 of SOGA unless there is a physical endorsement of delivery over them or there is a separate document to show that the goods were delivered to defendant or at least delivered to a goods carrier as provided under section 39 of SOGA.
CS (Comm) No. 21/2024 Page No. 16 of 20M/s Priyanshi's Vs. Shanu
47. Further, invoices are supported only with e-way bills but no bilty or GR receipts are filed to show how the goods were dispatched and whether the goods were delivered to the defendant at Delhi or not.
48. Counsel for the plaintiff has relied upon the e-way bills Ex.PW1/5 to Ex.PW1/7 to substantiate that the goods were supplied to the defendant.
49. E-way bill is an electronic record. The plaintiff has to file the certificate under Section 63 of BSA in support of the said bills which is not filed on record. Instead, the plaintiff has filed the certificate under Section 65B of IEA, which was repealed w.e.f. 01.07.2024. Even, in the said certificate, there is no mention of the e-way bill. The plaintiff has also not filed the mandatory certificate under Order 11 Rule 6 of the Commercial Courts Act, 2015 (CCA). Therefore, it can be held that the e-way bills Ex.PW1/5 to Ex.PW1/7 are inadmissible in evidence.
50. Section 68 of the GST Act provides that (1) the Government may require the person in charge of a conveyance carrying any consignment of goods of value exceeding such amount as may be specified to carry with him such documents and such devices as may be prescribed.
51. Rule 138 of the CGST Rules, 2017 provides that an E-way bill must be generated and carried along during the course of transportation of goods, if the value of the consignment exceeds Rs. 50,000. The threshold limit of Rs. 50,000 applies for the interstate movement of goods.
CS (Comm) No. 21/2024 Page No. 17 of 20M/s Priyanshi's Vs. Shanu
52. In view of the abovementioned provisions, it can be held that e-way bill is a document required to be carried by a person in charge of the conveyance carrying any consignment of goods of value exceeding Rs. 50,000/- as mandated by the Government in terms of Section 68 of the Goods and Services Tax Act read with Rule 138 of the rules framed thereunder. Therefore, the e-way bill cannot be constructed as proof of delivery of the goods.
53. Counsel for the plaintiff pleaded that the defendant signed the invoices. However, DW1 in his cross- examination has deliberately not disclosed the names of his employees to enable the court to ascertain as who had signed those invoices. Hence, it implies that the defendant had not only acknowledged the receipt of the invoices but also received the goods against those invoices.
54. The onus to prove that the defendant acknowledged the receipt of the invoices was on the plaintiff. Out of the invoices filed by the plaintiff, one invoice Ex.PW1/3 only has the signature of one person with the word "received". The onus to prove that the said invoice was received by the defendant or his employee was upon the plaintiff. However, the plaintiff has failed to discharge the said onus. As such, there is no substance in the plea raised by counsel for the plaintiff.
55. In view of the foregoing discussion, it can be held that the plaintiff has failed to prove that it delivered the goods to the defendant.
56. It is the case of the plaintiff that the defendant failed CS (Comm) No. 21/2024 Page No. 18 of 20 M/s Priyanshi's Vs. Shanu to pay the outstanding amount despite several requests made and reminder sent by it to the defendant. However, the plaintiff has not mentioned the date, month and year when he made such requests and sent alleged reminders to the defendant.
57. It is also the case of the plaintiff that it sent the legal notice dated 09.08.2022 Ex.PW1/12 calling upon the defendant to pay the outstanding amount. However, the plaintiff has not filed any document to prove that the said notice was served upon the defendant. Further, the notice Ex.PW1/12 filed on record is unsigned. If it is the computer printout of the legal notice though not pleaded so, then, it must be supported with a certificate under section 63 of BSA of counsel for the plaintiff. However, no such certificate has been filed on record.
58. In view of the foregoing discussion, it can be held that the plaintiff has failed to prove that the legal notice Ex.PW1/12 was served upon the defendant.
59. According to the plaintiff Rs. 12,29,088/- is outstanding against the defendant. and the defendant has not paid a single penny to clear the outstanding amount. However, in para 17 of the plaint, the plaintiff pleaded that the defendant made the part payments from time to time. Further, in para 9 of the legal notice Ex.PW1/12, it is mentioned that the defendant failed to release the outstanding payment of Rs. 1,09,654/-. In cross-examination of PW2, counsel for the defendant put a question as to whether he instructed his counsel to mention the outstanding amount of Rs. 1,09,654/- in the legal notice dated CS (Comm) No. 21/2024 Page No. 19 of 20 M/s Priyanshi's Vs. Shanu 09.08.2022, to which he replied he did not remember. No explanation was given by the plaintiff about the discrepancy in the outstanding amount in the legal notice Ex.PW1/12.
60. In view of the foregoing discussion, the plaintiff is held not entitled to the decree as prayed for. Hence, there is no occasion to award interest in favour of the plaintiff. Accordingly, issues no. 2 and 3 are decided against the plaintiff and in favour of the defendant.
ISSUE No. 4 (RELIEF)
61. In view of the foregoing discussion, the suit of the plaintiff is dismissed. No order as to cost.
62. In prayer clause of the plaint, the plaintiff has claimed pre suit interest @ 18% per annum from the October 2020 till the date of instutition of the suit on 12,29,088/-. However, admittedly, the plaintiff has neither quantified the pre suit interest nor has paid the court fees on the same. Accordingly, the plaintiff is directed to quantify the pre suit interest and deposit the deficit court fee within 10 days from today. Subject to deposit of court fee, the decree sheet be drawn.
63. File be consigned to the record room.
Digitally signed by ANNOUNCED IN THE OPEN COURT, Pankaj Pankaj Gupta Date:
Gupta On this 28th day of April, 2025.
2025.04.28 16:29:12 +0530 (PANKAJ GUPTA) District Judge, (Commercial Court)-01 South West District, Dwarka Courts New Delhi CS (Comm) No. 21/2024 Page No. 20 of 20 M/s Priyanshi's Vs. Shanu