Delhi District Court
Tushar Kochhar vs Saini Electrical Store on 27 April, 2023
IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (COMM.) No.368/2021
1. Tushar Kochhar
S/o Sh. Pankaj Kochhar
R/o D-256, Vivek Vihar, Phase-I,
Delhi-110 095.
2. Indu Kochhar
W/o Sh. Pankaj Kochhar,
R/o D-256, Vivek Vihar, Phase-I,
Delhi-110 095. ......Plaintiffs
Versus
Saini Electrical Store
Through its Proprietor Gurpreet Singh,
Near L.P.U. Ropar Road,
Nurpur Bedi (Rupnagar),
Punjab-140117.
......Defendant
Date of institution : 05.10.2021
Date of final arguments : 18.04.2023
Date of Judgment : 27.04.2023
JUDGMENT
1. The present commercial suit has been filed for recovery of a sum of Rs.4,86,284/-, alongwith pendentelite and future interest @18% per annum.
2. In the plaint, it is stated that the plaintiffs were running a partnership firm, under the name and style of M/s Harey Krishna Cables, having its head office at Friends Colony Industrial Area, CS (Comm.) 368/2021 page 1 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi New Delhi, and were engaged in manufacturing/trading of electrical cables, aluminium cables, submersible cables etc.
3. It is further stated in the plaint that the unregistered partnership firm M/s Harey Krishna Cables, was dissolved vide dissolution deed dated 12.08.2021, and thereafter, a power of attorney dated 28.09.2021, was executed by the plaintiff No.2, in favour of plaintiff No.1, whereby, exclusive rights, power to sue, recover and realize any and all properties, debts and damages of M/s Harey Krishna Cables, from all third parties, including the defendant, were assigned in favour of the plaintiff No.1.
4. It is further stated in the plaint that the defendant firm is a proprietorship concern of Sh. Gurpreet Singh and he manages the business and day to day activities of the defendant firm. It is further stated that in the last week of January 2020, the defendant approached the plaintiffs at their office at Delhi, for buying the products of the plaintiff and it was mutually agreed between the parties that the payment/consideration against the goods purchased by the defendant from the plaintiffs shall be made within a period of 30 days, after receipt of goods, failing which the defendant shall be liable to pay interest @18%.
5. It is further stated in the plaint that during the period w.e.f. 10.02.2020 to 29.02.2020, the plaintiffs supplied the goods to the defendant, vide eight invoices. But, despite receipt of the purchased goods, the defendant did not release the payments to the plaintiffs.
CS (Comm.) 368/2021 page 2 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
6. It is further stated in the plaint that the defendant has failed to make the payment of principal amount of Rs.3,82,479 and had no intention to pay the said amount to the plaintiffs. However, the defendant gave a signed security cheque to the plaintiff in March 2020, under the pretext of making payment by cash and asked the plaintiffs to return the check and rendered the cheque useless by filling an amount of mere Rs.48/-. Subsequently, he flatly refused to pay for the goods supplied. Therefore, the plaintiffs firm was constrained to file a criminal complaint u/s 200 and 156(3) Cr.P.C. and the same is still pending.
7. It is further stated in the plaint that till 24.09.2021, an amount of Rs.4,86,284/- is due and payable by the defendant, including interest @18% per annum, from the due date of the invoices.
8. It is further stated in the plaint that despite admitting the liability towards goods purchased by him, the defendant has deliberately and malafidely failed to remit the outstanding amount and hence the present suit.
9. After filing of the present suit, summons of the suit for settlement of issues were duly served upon the defendant and in compliance, the defendant has filed his written statement on 06.10.2022, wherein, it was objected that this court was having no territorial jurisdiction to try & entertain the present suit as the defendant carries his business at Ropar, Punjab. It was further objected that the suit was bad for misjoinder of parties. It is CS (Comm.) 368/2021 page 3 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi further stated that the defendant has never purchased any goods from the plaintiffs and therefore, does not owe any amount to the plaintiffs.
10. It is further stated in the written statement that the defendant did not contract or transact any business with the plaintiffs firm M/s Harey Krishna Cables and had never approached the plaintiffs for supply of any goods.
11. It is further stated in the written statement that the invoices mentioned in the plaint were forged and came to the notice of the defendant, for the first time, while filing the quarterly GST return in July 2020. It is further stated that the defendant contacted M/s Harey Krishna Cables, through its staff, on telephone on the contact number available publicly with its GST particulars and informed the officials of the plaintiffs that the invoices were incorrect and no orders were placed by the defendant and no goods were received by him. But, the plaintiff continued to insist that the said invoices were valid and refused to divulge any further details about the transaction.
12. It is further stated that the defendant had initiated criminal proceedings against the plaintiffs in respect of the forged invoices and the said criminal proceedings are still pending before the concerned criminal court at Punjab.
13. It is further stated by the defendant that a cheque was issued by the defendant to clear his dues of M/s Harey Krishna CS (Comm.) 368/2021 page 4 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi Corporation and the same has been misused by the plaintiff in the name of M/s Harey Krishna Cables, to institute the present frivolous proceedings.
14. It is further stated in the written statement that the defendant had transacted business with M/s Harey Krishna Corporation, on five occasions, between September 2019 to November 2019, for a total amount of Rs.1,33,273/- and he had already paid the amount of Rs.1,33,225/- to M/s Harey Krishna Corporation.
15. It is further stated that as on 03.12.2019 an amount of Rs.48/- only, remained unpaid towards the invoices issued by M/s Harey Krishna Corporation. It is further stated that the defendant issued cheque No.553076, in favour of M/s Harey Krishna Corporation, as security and when the officials of Harey Krishna Corporation visited the store of the defendant, they returned the security cheque to the defendant and thereafter, the defendant filled up the remaining amount of Rs.48/- in the said cheque and handed over the same to the representative of M/s Harey Krishna Corporation. It is further stated that the defendant had not filled up the name of the person, in whose favour the cheque was drawn and subsequently, the cheque to be used in favour of Harey Krishna Corporation, has been misused in the name of Harey Krishna Cables.
16. It is further stated in the written statement that the defendant had received several complaints regarding the poor CS (Comm.) 368/2021 page 5 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi quality of electrical goods supplied by M/s Harey Krishna Corporation, and therefore, details of standardisation of the products was sought from M/s Harey Krishna Corporation. But, the same were never provided by Sh. Manoj, agent/official of M/s Harey Krishna Corporation.
17. It is further stated in the written statement that the present suit has been instituted on the basis of forged and fabricated invoices and the defendant is not liable to pay any amount, as alleged, to the plaintiff. It has been prayed that the suit of the plaintiff may be reject with exemplary costs.
18. Replication to the written statement was also filed, on behalf of the plaintiff, wherein, the contents of the written statement were denied. It was stated that this court has the territorial jurisdiction to try & entertain the present suit, as the offer to purchase goods was made by the defendant at Delhi and acceptance of offer was also communicated by the plaintiff to the defendant at Delhi. It is further stated that the purchase orders were placed by the defendant at Delhi and the goods were supplied by the plaintiffs to the defendant from Delhi. It is further stated that the contract was executed at New Delhi and therefore, this court has the territorial jurisdiction to try & entertain the present suit.
19. It is further stated in the replication that no claim has been raised by the plaintiff in respect of the goods supplied by M/s Harey Krishna Corporation and therefore, it is neither a CS (Comm.) 368/2021 page 6 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi necessary nor a proper party in the present proceedings. It has been stated by the plaintiff that M/s Harey Krishna Corporation is a sister concern of M/s Harey Krishna Cables and the present suit is limited to the goods supplied by M/s Harey Krishna Cables, to the defendant and no claim qua the goods supplied by M/s Harey Krishna Corporation has been raised in the present suit. Remaining contents of the written statement were also denied by the plaintiff.
20. First case management hearing was conducted on 10.11.2022. From the pleadings of the parties, following issues were framed, as under :
1. Whether the present suit is bad for misjoinder of necessary parties ? OPD
2. Whether this Court has no territorial jurisdiction to try and entertain the present suit ? OPD
3. Whether the plaintiff is entitled to claim/recover an amount of Rs.4,86,284/- from the defendant, as claimed in the plaint ? OPP
4. Whether the plaintiff is entitled to claim interest from the defendant ? If so, at what rate and for which period ? OPP
5. Relief.
21. During the case management hearing on 10.11.2022, a local commissioner was also appointed to record the evidence of the parties and accordingly, the evidence of the parties was recorded by the Ld. Local Commissioner and he submitted the complete record of the evidence of the parties, alongwith his report, on 12.12.2022.
CS (Comm.) 368/2021 page 7 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
22. After completion of trial, final arguments were addressed by Sh. Sanjay Rathi and Sh. Varun Diwan, Advocates, for the plaintiff and Ms. Mahima Rathi and Ms. Pragya Rathi, Advocates, for the defendant, on 18.04.2023. Parties were also directed to file their respective written arguments and after conclusion of final arguments, the plaintiff was also directed to file the metadata of eight tax invoices Ex.PW1/1 (Colly.), as well as the ledger account Ex.PW2/2 and Ex.PW1/3.
23. In compliance of the said order dated 18.04.2023, the Ld. Counsel for the plaintiff has filed the affidavit of petitioner No.1 Sh. Tushar Kochhar, wherein, it is stated that the said eight invoices were generated by using tally software on computer system regularly used by M/s Harey Krishna Cables. But, the metadata of the documents in question could not be retrieved as the settings in the system were at their default state, i.e., "turned off". It is further stated in the affidavit that the metadata in question is not retrievable and cannot be produced on account of technical software impossibility involved.
24. The Ld. Counsel for the plaintiff has also filed the written arguments, alongwith copies of some judgments, on 20.03.2023.
But, the defendant has failed to file any written arguments, despite opportunity.
25. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also carefully perused the written CS (Comm.) 368/2021 page 8 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi arguments and the various judgments, filed on record, by the plaintiff, on 20.03.2023. My findings on the various issues are as under :
Issue No.1 Whether the present suit is bad for misjoinder of necessary parties ? OPD
26. The onus of proof of this issue lies on the defendant. During the course of arguments, it was stated by the Ld. Counsel for the defendant that the defendant has never entered into any business dealings with M/s Harey Krishna Cables, which was allegedly a partnership firm of the plaintiffs. She has further argued that the defendant was having business dealings only with M/s Harey Krishna Corporation, in which the plaintiffs were also the partners and M/s Harey Krishna Corporation was a sister concern of M/s Harey Krishna Cables. She has further argued that the defendant had received the goods only from M/s Harey Krishna Corporation, in the year 2018 and entire payment of the received goods, except an amount of Rs.48/- had already been made by the defendant to the plaintiff.
27. The Ld. Counsel for the defendant has further argued that because the defendant was having no business dealings with M/s Harey Krishna Cables, a partnership firm of the plaintiffs, the sister concern of the plaintiffs, namely, M/s Harey Krishna Corporation from which the goods were received by the defendant in the year 2018, is a necessary party to the present CS (Comm.) 368/2021 page 9 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi proceedings.
28. She has further submitted that the plaintiffs have failed to place on record any partnership deed in respect of M/s Harey Krishna Cables and have also failed to produce the original dissolution deed dated 28.09.2021. She has further argued that a photocopy of the dissolution deed dated 28.09.2021, which has been placed on record by the plaintiffs, also mentions that the erstwhile proprietorship firm M/s Harey Krishna Cables stands dissolved w.e.f. 23.06.2021 and in the said dissolution deed it was also mentioned that the balance sheet of M/s Harey Krishna Corporation, as on 31.03.2021, was also drawn at the time of dissolution of M/s Harey Krishna Cables. Therefore, M/s Harey Krishna Corporation is a necessary party and the suit of the plaintiff is bad for misjoinder/non-joinder of necessary party.
29. On the other hand, the Ld. Counsel for the plaintiff has argued that though M/s Harey Krishna Corporation was a sister concern of M/s Harey Krishna Cables, a partnership firm of the plaintiffs, which stands dissolved vide dissolution deed dated 28.09.2021, the present suit is not based on recovery of arrears of dues of M/s Harey Krishna Corporation and the present suit has been filed only for recovery of the amount, which was due and payable by the defendant to M/s Harey Krishna Cables, for the goods supplied to him by M/s Harey Krishna Cables only. Therefore, M/s Harey Krishna Corporation is not a necessary party to the present proceedings.
CS (Comm.) 368/2021 page 10 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
30. Perusal of the record shows that the parties have filed their respective affidavits and the affidavit of the plaintiff has been placed on record as Ex.PW1/A, wherein, it has been stated that the plaintiffs were the partners of M/s Harey Krishna Cables, which stands dissolved vide dissolution deed dated 12.08.2021. In his cross-examination plaintiff No.1 (PW-1) Sh.Tushar Kochhar has deposed that he, alongwith plaintiff No.2 Ms. Indu Kocchar, were the partners of M/s Harey Krishna Cables, whereas Sh. Pankaj Kochhar (his father) and Sh. Harsh Kumar Malhotra were the partners of M/s Harey Krishna Corporation. Either in his affidavit Ex.PW1/A or in his cross-examination, PW-1 Sh. Tushar Kochhar has not stated anything about supply of goods by M/s Harey Krishna Corporation, to the defendant.
31. On the other hand, the defendant, who has been examined as DW-1 has stated in his affidavit Ex.DW1/A that the defendant used to conduct business transactions with M/s Harey Krishna Corporation only and he transacted business on five occasions, between September 2018 to November 2019 and five invoices were raised by M/s Harey Krishna Corporation. He has further deposed that the entire payment of the said invoices, except the amount of Rs.48/-, had already been made by him to the plaintiffs.
32. From the testimony of PW-1 and DW-1, it is clear that PW-1 has stuck to his stand that the goods were supplied by the plaintiffs, through their partnership firm M/s Harey Krishna Cables, whereas the defendant has stuck to his claim that he had CS (Comm.) 368/2021 page 11 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi never received any goods from M/s Harey Krishan Cables. He has stuck to his stand that he was having business dealings only with M/s Harey Krishna Corporation.
33. Perusal of the record shows that the plaintiffs have filed the various tax invoices pertaining to the supply of goods to the defendant from M/s Harey Krishna Cables and a ledger account of the defendant in M/s Harey Krishna Cables was also placed on record as Ex.PW2/2. Tax invoices have been placed on record as Ex.PW1/1 (Colly.)
34. From the perusal of these documents and the pleadings of the parties and the material on record, it is clear that M/s Harey Krishna Corporation is neither a necessary nor a proper party to the present proceedings, as the suit of the plaintiff is based on invoices pertaining to goods supplied by M/s Harey Krishna Cables, to the defendant, during the period w.e.f. 10.02.2020 to 29.02.2020. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.2 Whether this Court has no territorial jurisdiction to try and entertain the present suit ? OPD
35. The onus of proof of this issue also lies on the defendant. During the course of arguments, it was stated by the Ld. Counsel for the defendant that the shop/office of the defendant is situtated at Ropar, Punjab and the defendant received the goods at Ropar, CS (Comm.) 368/2021 page 12 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi Punjab and the payments were also made by him at Ropar, Punjab, and therefore, this court has no territorial jurisdiction to try & entertain the present suit.
36. On the other hand, the Ld. Counsel for the plaintiff has argued that all the negotiations between the parties, regarding the supply of goods had taken place at Delhi and the plaintiffs were having their business/office at Delhi and the goods were also supplied by the plaintiffs to the defendant from Delhi and the payments were also to be received by the plaintiffs, from the defendant, at Delhi, and therefore, a part of cause of action has arisen at Delhi and therefore, this court has the territorial jurisdiction to try & entertain the present suit.
37. Perusal of the record shows that during the trial the plaintiffs have filed various invoices regarding supply of goods to the defendant during the period w.e.f. 10.02.2020 to 29.09.2020 and the tax invoices have been placed on record as Ex.PW1/1 (Colly.), which shows that the goods were supplied by the plaintiffs from Delhi.
38. Perusal of these invoices also indicates that the address of the office/shop of the plaintiffs falls within the territorial jurisdiction of District Shahdara, Karkardooma Courts, Delhi. All the invoices Ex.PW1/1 (Colly.) also have a specific noting, wherein, the jurisdiction has been conferred on Delhi courts. All the invoices have the marking/noting/term of contract as "Subject to Delhi Jurisdiction".
CS (Comm.) 368/2021 page 13 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi In these circumstances, this issue is also decided in favour of the plaintiffs and against defendant.
Issue No.3 Whether the plaintiff is entitled to claim/recover an amount of Rs.4,86,284/- from the defendant, as claimed in the plaint ? OPP
39. Onus of proof of this issue lies on the plaintiff and to prove his case, the plaintiff No.1 has examined himself as PW-1. He has filed his affidavit Ex.PW1/A, wherein, he has reproduced the contents of the plaint.
40. In his affidavit, the plaintiff No.1 (PW-1) Sh. Tushar Kochhar has categorically stated that the plaintiffs were running a partnership firm in the name and style of M/s Harey Krishna Cables, having its corporate/heard office at 1/421, Plot No.32 & 33, Gali No.6, Friends Colony Industrial Area, New Delhi and the said firm was engaged in manufacturing /trading of electrical cables, aluminium cables, submersible cables etc. In his affidavit, PW-1 has further stated that the partnership firm M/s Harey Krishna Cables was dissolved through dissolution deed dated 12.08.2021, and thereafter, a power of attorney was executed by plaintiff No.2 Mrs. Indu Kochhar, on 28.09.2021, in his favour, stipulating that he was having exclusive right/power to sue, recover and realize any and all properties, debts and damages of M/s Harey Krishna Cables from all parties, including the defendant. But, during the trial, the plaintiffs have failed to file on record any partnership deed, in the name of the plaintiffs, CS (Comm.) 368/2021 page 14 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi to prove on record that the plaintiffs were running an unregistered partnership firm in the name and style of M/s Harey Krishna Cables. The plaintiffs have also failed to file on record the original dissolution deed dated 28.09.2021. The plaintiffs have also failed to produce the original power of attorney dated 28.09.2021, whereby, the plaintiff No.2 had authorized the plaintiff No.1 to sue/recover any claim, debt and damages of M/s Harey Krishna Cables from third parties. Therefore, the contention of the plaintiffs that they were running an unregistered partnership firm in the name and style of M/s Harey Krishna Cables, prior to its dissolution on 28.06.2021, has remained NOT PROVED.
41. In his affidavit, Ex.PW1/A, the plaintiff No.1 has further stated that during the period w.e.f. 10.02.2020 to 29.02.2020, eight purchase orders were placed by the defendant with his sales representative Mr. Manoj and accordingly, the goods were delivered to the defendant's address and the same were duly acknowledged by the defendant. It is further stated in the affidavit that as per invoices, goods worth Rs.3,82,479/- were supplied to the defendant and corresponding GST amount was paid by the firm. It is further stated in the affidavit that at their instance, the defendant issued blank signed security cheque bearing No. 553076 drawn upon Punjab National Bank, in the name of M/s Harey Krishna Cables. However, in March 2020, the defendant informed plaintiffs that he wanted to make payment by cash and asked them to send their employee, with security cheque, to collect the cash amount. It is further stated in CS (Comm.) 368/2021 page 15 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi the affidavit that at the instance of the defendant, Mr. Manish Sharma (State Sales Head) and Mr. Manoj Kumar (Sales Representative), visited the office of the defendant to collect the payment on 05.03.2020, alongwith the security cheque.
42. It is further stated in the affidavit that on 05.03.2020, when the aforesaid employees of the plaintiffs reached the shop of the defendant, the defendant under the pretext of making payment in cash asked them to return the security cheque and once Mr. Manish Sharma handed over the cheque to Mr. Gurpreet Singh, he, with the intention to defraud, rendered the cheque useless by filling up an amount of Rs.48/- in it, alongwith the date and then returned the cheque to Mr. Manish Sharma and stated that he will not make any further payment. It is further stated in the affidavit that feeling aggrieved by the illegal action/conduct of the defendant, the plaintiffs filed police complaints against the defendant on 07.03.2020, 16.07.2020 and 19.09.2020. It is further stated that a criminal complaint u/s 200 and 156(3) Cr.P.C. was also filed against him, before the Ld.Chief Metropolitan Magistrate, bearing Complaint Case No.5571/2020, titled as, 'Harey Krishna Cables vs. Saini Electrical Store and Anr.' and the same is still pending adjudication.
43. During the evidence, the plaintiff has also placed on record eight tax invoices for the period w.e.f. 10.02.2020 to 29.02.2020, as Ex.PW1/1 (Colly.). The ledger account of the defendant has been placed on record as Ex.PW1/3 and Ex.PW2/2. A certificate u/s 65B of the Indian Evidence Act was also filed on record as CS (Comm.) 368/2021 page 16 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi Ex.PW1/5.
44. It is relevant to mention here that the plaintiffs, despite filing a computer generated tax invoice Ex.PW1/1 (Colly.) and computer generated ledger account Ex.PW1/3 and Ex.PW2/2, have failed to place on record the metadata of the aforesaid tax invoices, despite repeated directions of the court. Lastly, after completion of the final arguments, the plaintiffs were again directed to file the metadata of the said tax invoices, within one week and in compliance of the said order dated 18.03.2023, an affidavit was filed by plaintiff No.1 (PW-1) on 25.04.2023, wherein, it was stated that the aforesaid documents were generated by using Tally software on computer system and on inquiries from the customer care of Tally software, it was revealed that the metadata of the aforesaid documents could not be retrieved, because the settings in the Tally software were in default state i.e. 'turned off'. It is further stated in the affidavit that at the time of generation of the aforesaid documents, settings in Tally software with respect to the metadata were turned off and the plaintiffs were not aware about any such settings or about what metadata is. It is further stated that the metadata of the documents in question cannot be retrieved on account of technical software impossibility involved.
45. From the affidavit, it is clear that the plaintiffs have deliberately and intentional failed to file the metadata of the eight tax invoices Ex.PW1/1 (Colly.), as well as the ledger account Ex.PW1/3 and Ex.PW2/2. The ground for non-production of the CS (Comm.) 368/2021 page 17 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi metadata, as stated in the affidavit dated 25.04.2023, appears to be an after thought, as every document which has been prepared by electronic modes with the use of computer and internet etc, automatically generate metadata and leaves its imprint on the hard-disc, and therefore, it is unbelievable that the settings in the Tally software, which was being run on the computers of M/s Harey Krishna Cables, were in default setting i.e. 'Turned Off', due to which the metadata of the documents in question was not retrievable. Furthermore, the affidavit under Section 65-B of the Indian Evidence Act, 1872, filed on record as Ex.PW1/5, is also not complying the various conditions, in relation to the information and computer in question. Therefore, all the eight tax invoices and the ledger accounts of the defendant could not be proved by the plaintiff during the trial, as per the provisions of the Indian Evidence Act, 1872.
46. Perusal of the cross-examination of PW-1 further indicates that M/s Harey Krishna Cables and M/s Harey Krishna Corporation were two sister concerns and in M/s Harey Krishna Cables, plaintiffs were allegedly the partners, whereas in M/s Harey Krishna Corporation, Sh. Pankaj Kochhar (father of plaintiff No.1) and Sh. Harsh Kumar Malhotra were allegedly the two partners.
47. A photocopy of the dissolution deed, dated 28.09.2021, has been placed on record by the plaintiffs, but the same could not be proved during the trial. But, it can be read by the court for drawing adverse inference against the plaintiffs, shows that the CS (Comm.) 368/2021 page 18 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi dissolution deed was allegedly prepared on 28.09.2021 and it was mentioned in the said dissolution deed that the business of M/s Harey Krishna Cables was closed on 23.06.2021 and the plaintiffs have drawn the manufacturing, trading and Profit & Loss account, as well as the balance sheet of M/s Harey Krishna Corporation, as on 31.03.2021. It is further mentioned that after 23.06.2021, the parties had mutually decided to dissolve the partnership with immediate effect and the partnership stands dissolved as on 28.06.2021.
48. From the evidence of the plaintiffs it is not clear as to why the balance sheet of M/s Harey Krishna Corporation, as on 31.03.2021, was also drawn at the time of preparation of dissolution deed, dated 28.09.2021, when the business of M/s Harey Krishna Cables was allegedly wound up w.e.f. 23.06.2021. Furthermore, the plaintiff has failed to produce any trading or manufacturing account or profit & loss account or the balance sheet of M/s Harey Krishna Cables, to prove on record that the goods were supplied to the defendant from M/s Harey Krishna Cables, during the period w.e.f. 10.02.2020 to 29.02.2020. In case, the alleged goods were supplied to the defendant, vide invoices Ex.PW1/1 (Colly.) and payments were not made by the defendant to the plaintiff till 31.03.2021, the said amount must have been reflecting in the manufacturing account or trading account or the Profit & Loss account or the balance sheet of M/s Harey Krishna Cables, and the defendant should have been mentioned as Sundry Creditor, as on 31.03.2020, as well as, on 31.03.2021. During the trial, the plaintiff has failed to place on CS (Comm.) 368/2021 page 19 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi record any manufacturing account, trading account or profit & loss account or the balance sheet of M/s Harey Krishna Cables for the financial year 2019-20 and the FY 2020-21, to prove the said facts.
49. It is also very relevant to note that in his deposition before the court and in his cross-examination, the PW-1 has admitted that duly GST paid invoices, alongwith the ledger account were maintained by him regularly and the interest account was also maintained. But during the trial, no GST return has been filed on record by the plaintiffs and the plaintiffs have also failed to examine any witness from the GST Office, Govt. of India, to establish on record that the benefit of GST deposited by the plaintiff against the tax invoices Ex.PW1/1 (Colly.), has been taken by the defendant in his GST return. During the trial, even the defendant has failed to file any GST return.
50. In support of his contention, the plaintiffs have also examined PW-2 Sh. Manish Sharma, who was working as State Sales Head for Punjab and Jammu & Kashmir for M/s Harey Krishna Cables. In his deposition, PW-2 Sh. Manish Sharma has also stated that during the period w.e.f. 10.02.2020 to 29.02.2020, goods worth Rs. 3,82,479/- were supplied to the defendant against eight purchase orders and the tax invoices and corresponding GST amount stands paid by his firm.
51. PW-2 Sh. Manisha Sharma was also cross-examined at length and in his cross-examination, this witness has admitted CS (Comm.) 368/2021 page 20 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi that he had worked with M/s Harey Krishna Corporation since the year 2011 till date, as State Head for Punjab and Jammu & Kashmir. He has further deposed that he started working with M/s Harey Krishna Cables in the year 2020-21.
52. During his cross-examination, this witness was also asked about the incident dated 05.03.2020, when the defendant allegedly issued cheque bearing No. 553076 dated 05.03.2020 for Rs.48/- in favour of M/s Harey Krishna Cables, drawn on Punjab National Bank. This witness has deposed that the defendant had asked him to come to his office to collect the payment and had also asked to bring the security check, with him and therefore, he alongwith Mr. Manoj, went to his office to collect the payment. He has further deposed that after receiving the security cheque from him, the defendant gave him the cheque of Rs.48/-, instead of the due amount. This witness has further disclosed that Mr. Manoj, who was associated with the Punjab office, had retained the security cheque in his custody. It is very relevant to note that Mr. Manoj, who accompanied PW-2 Mr. Manish Sharma, to the office of the defendant, on 05.03.2020 and received the cheque of Rs.48/- dated 05.03.202 has not been produced before the court for his examination.
53. Perusal of the record further shows that the photocopies of various complaints were also placed on record by the plaintiff to substantiate his contentions. But, the same could not be proved on record, as per the provisions of the Indian Evidence Act, as the originals were not filed by the plaintiffs during the trial.
CS (Comm.) 368/2021 page 21 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi However, the said documents can be read by the court to draw an adverse inference against the plaintiff.
54. Perusal of the handwritten complaint, given by the plaintiffs to the SHO, PS GTB Enclave, shows that the said complaint was lodged on behalf of the plaintiffs, in the capacity of partner of M/s Harey Krishna Corporation and not in the capacity of partner of M/s Harey Krishna Cables.
55. Perusal of the said complaint further shows that the plaintiff has stated that he was running M/s Harey Krishna Cables, as well as M/s Harey Krishna Corporation, in the capacity of a partner and it has not been mentioned in the said complaint that the M/s Harey Krishna Cables had already been dissolved. It was not mentioned that no goods were supplied by M/s Harey Krishna Corporation to the defendant.
56. From the documents on record and the evidence of the parties, it appears that the plaintiffs, who were also running a sister concern, in the name and style of M/s Harey Krishna Corporation, were having business transactions with the defendant in both their firms and were supplying goods from both their firms, as per their convenience.
57. From the material on record, this court is of the considered opinion that the plaintiff has failed to establish on record that the goods worth Rs.3,82,479/- were supplied by M/s Harey Krishna Cables, to the defendant, against the tax invoices Ex.PW1/1 CS (Comm.) 368/2021 page 22 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi (Colly.).
58. During the course of arguments, the Ld. Counsel for the plaintiff has stressed that the goods supplied by the plaintiffs contained PVC copper wire of 4.00 sq.mm and PVC 2 core flat aluminium wire of 6.00 sq.mm and PVC insulated submersible cable of 4.00 sq.mm. He has also stressed that the plaintiff was the sole owner of the trade name 'RHEIN' for manufacturing 4.00 sq.mm PVC copper wires and cables and the said cables and wires were found lying in the shop of the defendant and therefore, the plaintiffs have proved the delivery of 4.00 sq.mm wires and cables to the defendant and therefore, the suit of the plaintiff may be decree.
59. Perusal of the testimony of DW-1 and his cross- examination indicates that during his cross-examination, the defendant has admitted that his shop 'Saini Electrical Store' was registered at 'Just Dial' under his approval and consideration and the document Ex.DW1/PW1/6 and the photographs of his shop/store Ex.DW1/PW1/7 (Colly.), were correct depiction of his 'Just Dial' registration. The defendant has also admitted that he was trading in cables and wires under the brand name 'RHEIN' in the year 2018-19. However, when the defendant was confronted with the portion marked X1 to X2, in the documents Ex.PW1/PW1/6 and Ex.PW1/DW1/7, he has denied that the said photographs were indicating or showing that 4.00 sq.mm of multiple-stand copper FR cables was mentioned on the boxes.
CS (Comm.) 368/2021 page 23 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
60. During the final arguments, the Ld. Counsel for the plaintiff has also argued that the aforesaid goods i.e. 4.00 sq.mm multi stand FR cable, lying in the shop of the defendant, as depicted in the photographs Ex.DW1/PW1/7 Colly. have proved the case of the plaintiffs. He has further argued that the said goods were being supplied by the plaintiff only, with his exclusive trade mark 'RHEIN' and therefore, the defendant cannot be permitted to deny his liability, at this stage.
61. On the other hand, the defence of the defendant has remained that he received various goods from M/s Harey Krishna Corporation and no goods were received by him from M/s Harey Krishna Cables. During his evidence, the defendant has also filed the various tax invoices as Ex.DW1/1 Colly., alongwith delivery challans/bilty of Bharat Motor Transport Company Pvt. Ltd., to establish on record that he purchased the aforesaid goods from M/s Harey Krishna Corporation only.
62. Perusal of the invoices placed on record by the defendant as Ex.DW1/1, Ex.DW1/2, Ex.DW1/3, Ex.DW1/4 and Ex.DW1/5, shows that the invoice Ex.DW1/2 was prepared for supplied of PVC 2 core Flat Aliuminium cable of 6.00 sq.mm by M/s Harey Krishna Corporation. Invoice Ex.DW1/3 also indicates that PVC 2 core flat aluminium cable of 4.00 sq.mm was also supplied from M/s Harey Krishna Corporation. Perusal of invoice Ex.DW1/4 also indicates that PVC insulated submersible cable of 4.00 sq.mm was also supplied through M/s Harey Krishna Corporation.
CS (Comm.) 368/2021 page 24 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
63. In these circumstances and the material on record and preponderance of probabilities, this court is of the considered opinion that the plaintiffs have failed to prove this issue. Accordingly, this issue is decided against the plaintiffs.
Issue No. 4Whether the plaintiff is entitled to claim interest from the defendant ? If so, at what rate and for which period? OPP
64. Onus of proof of this issue also lies on the plaintiff and in view of my findings on the issue No.3, as discussed above, this issue is also decided against the plaintiffs.
Relief
65. In view of my findings on the various issues, as discussed above, this court is of the considered opinion that the plaintiffs are not entitled for grant of any relief against the defendant, in the present suit. Therefore, the suit of the plaintiffs is hereby dismissed, being devoid of any merits.
Decree sheet be prepared accordingly.
Parties to bear their own costs.
File be consigned to record room after due compliance.
Digitally signed by BRIJESH BRIJESH KUMAR
Announced in the open Court KUMAR GARG
Date: 2023.04.27
on this 27th Day of April, 2023 GARG 16:27:49 +0530
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
CS (Comm.) 368/2021 page 25 of 25 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi