Delhi District Court
M/S Shiv Bhatta Co vs M/S B S Dwarka on 12 March, 2025
IN THE COURT OF VIKAS DHULL
DISTRICT JUDGE (COMMERCIAL COURT)-02
SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CS (COMM)/347/2022
DLSW010066852022
In the matter of :
M/s.Shiv Bhatta Co.
Proprietor Mr.Ram Kishan
Through Power of Attorney Holder Sh.Munshi Ram
having its office / Brick Kiln
Village Bupania, Jhajjar
Haryana.
... Plaintiff
Versus
M/s.B.S.Dwarka
Through Proprietor Mr.Yogesh Malik
Having Office at Bharat Petroleum Petrol Pump
KM Chowk Sec.11
Dwarka, New Delhi.
... Defendant
Date of institution of suit : 13.07.2022
Date on which judgment reserved : 03.03.2025
Date on which judgment pronounced : 12.03.2025
JUDGMENT
1. The plaintiff had initially filed the present commercial suit under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC"). However, on the statement made by Ld.counsel for plaintiff on 13.07.2022, the suit was converted into an ordinary suit.
Brief Facts CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 1/40
2. The brief facts, which can be culled out from the plaint are that plaintiff had filed a suit for recovery of Rs.36,76,934/- with interest against defendant. It was averred in the suit that plaintiff is engaged in the business of manufacturing and sale of bricks, tiles and other related items and defendant had placed a tentative order for 7-8 Lacs of bricks with plaintiff on 28.11.2020 and also made an advance payment of Rs.9 Lacs through bank transfer i.e. Rs.3,00,000/- on 02.12.2020 and Rs.6,00,000/- on 18.01.2021. Thereafter, on the instruction of defendant, plaintiff had supplied 7,92,542/- bricks to the defendant between the period from 26.05.2021 till 29.06.2021 worth Rs.45,76,934/-. After the adjustment of advance payment of Rs.9 Lacs, outstanding amount due against defendant was Rs.36,76,934/-. To recover the outstanding amount, plaintiff presented three cheques of Rs.12 Lacs each in the month of August, 2021, out of four cheques given by defendant earlier to the plaintiff but all the three cheques were dishonoured due to reason "payment stopped by the drawer". Accordingly, plaintiff has filed the present suit for recovery of Rs.36,76,934/- alongwith interest against the defendant.
3. In the written statement filed by defendant, defendant denied of having entered into any kind of agreement for purchase of bricks. It was further submitted that the invoices filed on record by plaintiff are forged and fabricated regarding which a criminal complaint has been filed with the concerned police authorities. It was submitted that the CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 2/40 correct facts are that defendant had taken a loan in cash of Rs.10 Lacs on 19.01.2020 from son of plaintiff and the said loan was arranged by Sh.Gagan Goyal. Defendant had repaid the said loan in cash with interest. Thereafter, defendant had taken a second loan through Sh.Gagan Goyal from son of plaintiff and said loan was repaid by making payment of Rs.3 Lacs and Rs.6 Lacs on 02.12.2020 and 18.01.2021 into the account of plaintiff's firm and Rs.4 Lacs into the account of Proprietorship firm namely M/s.JPB Bhatta Co., wherein son of plaintiff is the proprietor. The account details of both the plaintiff's firm and M/s.JPB Bhatta Co. were provided by Sh.Gagan Goyal. It was further submitted that at the time of arranging the loan, Sh.Gagan Goyal had taken four blank signed cheques from defendant as security of the loan amount and after repayment of loan, said cheques were misused by Sh.Gagan Goyal in conspiracy with the plaintiff and his son. Accordingly, a prayer was made to dismiss the suit.
4. In the replication filed by plaintiff, all the averments made by defendant in his written statement were denied and those stated in the plaint were reiterated. It was further submitted that although Gagan Goyal was known to the plaintiff but he had no concern with the transaction in question.
Issues
5. After the completion of the pleadings, the following issues were framed vide order dated 17.04.2023:--
(1) Whether this court has got no territorial jurisdiction to entertain and proceed with the present matter? OPD CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 3/40 (2) Whether suit is bad for non joinder of necessary parties?
OPD (3) Whether plaintiff is entitled for recovery of sum of Rs.36,76,934/-? OPP (4) Whether plaintiff is entitled for any interest? If so, in what rate and at what amount? OPP (5) Relief.
Evidence
6. Thereafter, the matter was posted for the plaintiff's evidence. In his evidence, plaintiff had examined his attorney Sh.Munshi Ram as PW1, who also happens to be the son of the plaintiff. PW1 had relied upon the bank statement of the plaintiff's firm, copy of invoices having the stamp of the defendant's firm, copy of the GST returns, original cheques alleged to have been issued by the defendant alongwith the return memos and the certificate under Section 65B of the Indian Evidence Act, 1872. PW1 was thoroughly cross examined by the defendant and was accordingly discharged.
7. Thereafter, plaintiff had examined PW2 Sh.Mahendra Kumar Verma, who was working as a Manager in the plaintiff's firm. PW2 had deposed regarding the preparation of invoices. PW2 was also cross examined and was discharged.
8. Thereafter, plaintiff had examined PW3 Sh.Subhash Sharma, who was the GST practitioner and had filed the GST returns on behalf of plaintiff's firm for the Financial CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 4/40 Year 2020-2021 and 2021-2022. He had deposed about the filing of the GST returns on behalf of plaintiff's firm and he also relied upon the Form GSTR 3B, which was filed by him. PW3 was also cross-examined by the defendant and was accordingly discharged. No other witness was examined on behalf of plaintiff. Accordingly, plaintiff's evidence was closed.
9. Thereafter, the matter was posted for defendant's evidence. In his defence, defendant had examined himself as DW1 and had relied upon the police complaint and the whatsapp chat between him and Gagan Goyal, his bank statement and certificate under Section 65B of the Indian Evidence Act, 1872. DW1 was cross examined by plaintiff and was discharged.
10.Thereafter, defendant had examined DW2 Sh.N.K.Gupta, who was a Chartered Accountant. DW2 had deposed about the reversal of Input Tax Credit of Rs.2,16,700/-and had filed Form GSTR-9 in support of the reversal of the Input Tax Credit. DW2 was also cross examined by the plaintiff and was discharged.
11.Thereafter, defendant had examined Sh.Deepak Negi, Ahlmad posted in the court of Ld.Principal District and Sessions Judge, South-West, Dwarka Courts, New Delhi, who had produced the record of Criminal Revision filed by Gagan Goyal and had proved the legal notice dated 16.08.2021 sent to Gagan Goyal. No other witness was examined on behalf of defendant. Accordingly, defence evidence was closed.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 5/40
12.Thereafter, the matter was posted for final arguments.
13.I have heard Sh.Pradeep Sehrawat, Ld.counsel for plaintiff and Sh.Kunal Ahlawat, Ld.counsel for defendant and have carefully perused the record.
Arguments on behalf of plaintiff
14.It was submitted by Ld.counsel for plaintiff that in the present case, evidence of PW1 and PW2 proves that plaintiff had supplied to the defendant, the bricks required for his construction site, which has been duly corroborated by the various bills/ invoices filed on record having the stamp of the defendant's firm. It was further submitted that delivery of bricks to the defendant had been duly corroborated by PW2 Sh.Mahendra Kumar, who was working with the plaintiff as a Manager and had also deposed regarding supply of bricks to the defendant in his presence. It was further submitted that placing of order for supply of bricks by defendant is further corroborated by making of Rs.9 Lacs as advance payment by defendant into the account of the plaintiff. It was further submitted that plaintiff had supplied bricks worth Rs.45,76,934/- and after adjusting the initial Rs.9 Lacs advance payment, the balance due was Rs.36,76,934. Against the outstanding due, although defendant had issued four cheques but plaintiff had presented three cheques of Rs.12 Lacs each amounting to Rs.36 Lacs and for the balance amount of Rs.76,934/-, defendant assured to make payment in cash or through RTGS. However, all the three cheques, on presentation, were dishonoured due to reason "payment stopped by the CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 6/40 drawer". It was further submitted that all the three original cheques have been filed on record, which further corroborates the fact that cheques were issued in discharge of legal liability towards the plaintiff by defendant.
15.It was further submitted that in order to show that sale transaction of bricks was made by plaintiff to the defendant, plaintiff had also deposited the GST by filing the return on 19.08.2021 i.e. much before the filing of the present suit. It was further submitted that the very fact that plaintiff had paid GST amount to the tune of Rs.2,16,700/- shows that sale transaction of bricks was a genuine transaction as no prudent business man would pay the GST returns on a disputed amount to the tune of around Rs.36 Lacs.
16.It was further submitted that no contradiction or inconsistency was brought on record in the cross examination of plaintiff's witnesses, which proves that plaintiff is entitled to the claimed amount.
17.It was further submitted that the defence of the defendant that the invoices raised by plaintiff were forged and fabricated has not been established on record. It was submitted that if plaintiff had forged the invoices to the tune of Rs.45,76,934/-, then defendant should have taken his police complaint dated 06.09.2022 to its logical conclusion by filing an application under Section 156(3) Cr.P.C. for getting the case registered against the plaintiff and Sh. Gagan Goyal. The very fact that defendant had not taken any steps for getting the case registered against the plaintiff CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 7/40 and Sh.Gagan Goyal shows that sham defence of bills being forged and fabricated had been taken.
18.It was further submitted that defence of defendant that he had taken loan of Rs.10 Lacs from the plaintiff on two occasions through one Gagan Goyal has also not been established on record. It was submitted that the defence of the defendant that he had returned first loan of Rs.10 Lacs in five installments of Rs.2,40,000/- each to the son of plaintiff namely Sh.Munshi Ram, has not been established on record as defendant had not provided any date, month or year regarding the alleged repayment of loan in installments. Secondly, taking loan of Rs.10 Lacs in cash and returning the same in the bank account of plaintiff and his son, is also not believable as no prudent business man would advance a loan of Rs.10 Lacs in cash and would accept payment in his bank account to attract 30% income tax on the same. Therefore, the taking of loan from plaintiff through Sh.Gagan Goyal has not been established on record.
19.The other defence of the defendant that cheques given by defendant as security of the loan to Sh.Gagan Goyal have been misused, has also not been established on record. It was submitted that defendant admitted in his evidence that he had not filed any police complaint against plaintiff or his son regarding misuse of cheques. The very fact that no complaint was filed against plaintiff or his son regarding misusing of cheques shows that cheques were issued by defendant in discharge of his liability and were not misused CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 8/40 in connivance with Gagan Goyal as alleged by the defendant.
20.It was further submitted that in the complaint made to the police Ex.PW1/1, after one year of dishonourment of cheques, defendant remained silent with regard to alleged misuse of cheques. Further, the said police complaint was made by defendant after receipt of summons in the present suit which shows that false complaint was made to the police just to take up a defence of misuse of cheques.
21.It was further submitted that various whatsapp chats filed on record by defendant do not prove his defence in any manner. It was further submitted that the alleged whatsapp chat are between defendant and the alleged Gagan Goyal and not between defendant and plaintiff. However, the whatsapp chat do not have any mobile number from where the identity of Gagan Goyal could be established. The defendant also failed to summon Gagan Goyal as a witness to prove the alleged whatsapp chat between him and Gagan Goyal. The evidence of Gagan Goyal would have corroborated the version of defendant regarding taking of loan from plaintiff and its repayment in the bank account of the plaintiff and also that the cheques were issued in blank as security to Gagan Goyal. However, non-examination of Gopal Goyal is fatal to the defence of the defendant and, therefore, defendant has failed to prove his defence that the cheques were issued as security to Gagan Goyal or that Rs.9 Lacs was transferred into the account of the plaintiff for repayment of loan.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 9/40
22.It was further submitted that Gagan Goyal was friend of defendant and said fact is apparent from the order annexed with the application filed by defendant under Order XVI Rule 1 and 6 CPC. The said order of the Hon'ble District Judge, Dwarka Courts, Delhi shows that there were friendly relations between defendant and Gagan Goyal and therefore, the defence of defendant that Gopal Goyal in connivance with the plaintiff had misused the cheques, deserves to be rejected.
23.It was further submitted that defendant had issued a legal notice dated 16.08.2021 to Gagan Goyal but in the said legal notice also, there is no mention of the cheques filed on record by the plaintiff. Therefore, defendant has failed to establish his defence that blank signed cheques given to Gagan Goyal have been misused by the plaintiff in connivance with Gagan Goyal.
24.It was further submitted that this court does have the territorial jurisdiction to try the present case in the light of judgment of the Hon'ble Supreme Court of India delivered in Patel Roadways Limited, Bombay Vs. Prasad Trading Company, 1991 SCR (3) 391, DOD: 06.08.1991.
25.It was concluded by submitting that plaintiff has proved his entitlement to the claimed amount. Accordingly, a prayer was made to decree the suit.
Arguments on behalf of defendant
26.It was submitted by Ld.counsel for defendant that the issue of territorial jurisdiction of this court to try the present suit will depend upon the finding of this court as to whether the CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 10/40 invoices Ex.PW1/3 (colly) are genuine, as claimed by the plaintiff or are forged and fabricated, as alleged by the defendant. It was further submitted that if court comes to the conclusion that invoices Ex.PW1/3 (colly) are genuine, then this court will not have the territorial jurisdiction as courts in Haryana have the exclusive jurisdiction to try this dispute, as per the condition mentioned in the invoices. However, if this court agrees with the defence of the defendant that invoices are forged and fabricated, then this court will have the jurisdiction to adjudicate the present dispute as per Section 20 of the CPC.
27.It was further submitted that the suit is also bad for non joinder of necessary parties as Munshi Ram, son of plaintiff, who has deposed as an attorney of the plaintiff, was having loan transaction with the defendant in his personal capacity through Gagan Goyal. However, his non impleadment makes this suit bad for non joinder of necessary parties.
28.It was further submitted that the suit filed by the plaintiff for recovery of Rs. 36,76,934/- from the defendant is required to be dismissed as plaintiff has failed to prove the sale and delivery of bricks to the defendant. It was submitted in this regard that plaintiff has not filed on record any purchase order placed by defendant upon plaintiff for supply of around 7-8 lacs bricks. It was further submitted that no oral or written communication has been brought on record by the plaintiff to show that defendant had placed any purchase order for purchase of 7-8 lacs bricks in the month of November, 2020.
29.It was further submitted that the invoices Ex.PW1/3 (colly) filed on record by plaintiff are forged and fabricated and CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 11/40 defendant had filed a criminal complaint against the said forged invoices which is Ex.DW1/1. It was further submitted that the version of plaintiff that invoices Ex.PW1/3 (colly) bears the stamp of the defendant's firm and signature of authorized persons of the defendant, is also meritless because PW1 failed to file any authorization, which was allegedly shown to him by 25 fictitious persons, who allegedly took deliveries of bricks from the plaintiff. Further, the invoices Ex.PW1/3 (colly) although mentions that delivery of bricks was taken through tractor trolley but registration number of tractor is not mentioned in the invoices. It was further submitted that plaintiff had intentionally created false invoices of Rs.50,000/- and less so as to avoid generation of e-way bill wherein mandatory particulars of the vehicle number and the place of delivery are required to be mentioned. It was further submitted that defendant had, during the cross examination of PW1,requested him to produce the original bill book pertaining to invoices Ex.PW1/3 (colly) and carbon copy of the invoices Ex.PW1/D1 as contained in the bill book was brought on record. However, the carbon copy of the bills Ex.PW1/D1 so produced by PW1 did not have any stamp or the signatures of the authorized persons of the defendant as were there in the invoices Ex.PW1/3 (colly). This fact also proves that invoices Ex.PW1/3 (colly) are forged and fabricated. Therefore, on the basis of invoices Ex.PW1/3 (colly), plaintiff has miserably failed to prove any delivery of bricks to the defendant.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 12/40
30.It was further submitted that the plaintiff tried to add colour of genuineness to the bills Ex.PW1/3 (colly) by showing that he had deposited GST tax with regard to Ex.PW1/3 (colly) of Rs.2,16,700/-. It was submitted that as per the documents filed on record by plaintiff, the GST amount of Rs.2,16,700/- was deposited on 30.11.2021 but the GST returns were not filed alongwith the plaint and the same came to be filed on record alongwith the replication filed on 22.12.2022. It was submitted that the defendant came to know at that stage that plaintiff has filed the GST tax with regard to invoices Ex.PW1/3 (colly) and accordingly, returned the Input Tax Credit on 29.12.2022 as defendant had never availed the Input Tax Credit, which further proves that no bricks were sold by the plaintiff to the defendant. It was further submitted that the defence of defendant was that he had taken two loans of Rs.10 Lacs each from the plaintiff's son through Gagan Goyal. The first loan was taken on 19.01.2020 in cash from Gagan Goyal and the same was returned in five instalments of Rs.2,40,000/- each. Thereafter, defendant had taken the second loan through Gagan Goyal from son of plaintiff of Rs.10 Lacs and the same was also returned by paying Rs.9 Lacs to the plaintiff through bank transfer and Rs.4 Lacs into the bank account of M/s. JPB Bhatta Company, Proprietorship concern of son of plaintiff. It was further submitted that taking of aforesaid two loans through Gagan Goyal has been established on record through whatsapp chat between defendant and Gagan Goyal, which are Ex.DW1/4. It was further submitted that the amount of Rs.9 Lacs, which was transferred by defendant into the CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 13/40 account of plaintiff against return of loan, has been wrongly shown as advance payment to have been received from the defendant with regard to purchase of bricks.
31.It was further submitted that the amount of Rs.4 Lacs transferred to the son of plaintiff against the loan, has not been rebutted by plaintiff or son of plaintiff to show that the amount of Rs.4 Lacs returned by defendant was not against the loan but was against the sale of bricks.
32.It was further submitted that the alleged four cheques, which were in possession of plaintiff are those cheques, which the defendant had given to Gagan Goyal as security for the loan taken from him. It was further submitted that the aforementioned four cheques were misused by plaintiff in connivance with Gagan Goyal. It was further submitted that there was no whisper made by plaintiff in the legal notice dated 18.10.2021 or in his plaint regarding the role of said Gagan Goyal in any of the transactions and in the replication, plaintiff went to the extent of stating that although Gagan Goyal is known to them but he has no role to play in the transaction in question. However, in his evidence, PW1 took a U-Turn and stated that he has shared his bank details on whatsapp chat with Gagan Goyal and even the cheques were handed over to him by defendant in the presence of Gagan Goyal and thereafter both of them had filled up the particulars in the cheques. It was further submitted that these vital details regarding role of Gagan Goyal were deliberately withheld by the plaintiff so that loan given by plaintiff to defendant through Gagan Goyal could not come on record. It was further CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 14/40 submitted that defendant had issued a legal notice dated 16.08.2021 Ex.DW1/7 to Gagan Goyal giving details of the loan arranged by Gagan Goyal through various financers including plaintiff and his son and had also demanded return of his 15 blank signed cheques taken by Gagan Goyal as security of loan arranged by him through various financers and an amount of Rs.1,37,19,000/- owed by Gagan Goyal to plaintiff which further proves that the cheques were presented for encashment by plaintiff in connivance with Gagan Goyal and thereafter, the present suit was filed against the defendant.
33.It was further submitted that the defendant has established on record that the three cheques of Rs.12 Lacs each Ex.PW1/5 (colly) have been misused by the plaintiff in connivance with Gagan Goyal and were never issued to the plaintiff in discharge of any legal liability. It was submitted that as per cross examination of PW1, said cheques were issued by defendant to plaintiff in the month of June, 2021 after the complete delivery of bricks was made to defendant. It was submitted that PW1 has also admitted in his cross examination that all the details in the cheques were filled up by them. Therefore, the question arises as to why defendant will issue four cheques of Rs.12 Lacs each to discharge his liability of around Rs.36 Lacs when one cheque would have sufficed. It was further submitted that it is not the case of the plaintiff that the three cheques Ex.PW1/5 (colly) are of different months and, therefore, payment was made by defendant in instalments. The cheques Ex.PW1/5 (colly) shows that they are dated 23.08.2021, 24.08.2021 and 25.08.2021 CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 15/40 respectively. Therefore, no prudent man will issue three different cheques of Rs.12 Lacs each to be presented in a gap of around 03 days. This fact also establishes on record that cheques were never issued by the defendant to the plaintiff in discharge of any liability and were in fact given to Gagan Goyal as security for the loan transaction. It was concluded by submitting that plaintiff has failed to prove any purchase order, sale and delivery of bricks to defendant. Further, defendant has established on record that invoices Ex.PW1/3 (colly) are forged and fabricated and that even he had not availed any Input Tax Credit, with regard to GST deposited by plaintiff, with regard to sale invoices Ex.PW1/3 (colly). It was submitted that defendant has also established on record that Rs.9 Lacs transferred into the account of plaintiff was towards return of loan amount taken through Gagan Goyal and was not an advance payment given to plaintiff for sale of bricks. It was further submitted that plaintiff has failed to discharge the onus as to why Rs.4 Lacs was received into the account of his son and, therefore, the version of defendant that the same was towards the payment of loan, is required to be accepted. It was further submitted that defendant has also established on record that the blank signed security cheques of defendant lying with Gagan Goyal were misused by plaintiff in connivance with Gagan Goyal and the same were not issued in discharge of any liability. Accordingly, a prayer was made to dismiss the suit.
34. I have considered the rival submissions of respective counsels and have carefully perused the record.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 16/40 Finding
35.My finding on various issues is as under. Before deciding issue no.1, I shall decide the other issues as finding of other issues has a bearing upon issue no.1.
36.Issue No.2 (2) Whether suit is bad for non joinder of necessary parties? OPD The onus to prove this issue was upon the defendant. It was the submission of Ld.counsel for defendant that certain invoices have been filed on record by the plaintiff, which were pertaining to M/s.JPB Bhatta Co., whose proprietor was Sh.Munshi Ram. However, since Sh.Munshi Ram was never made a party in the present case, therefore, suit is liable to be dismissed with regard to invoices of M/s.JPB Bhatta Co., for non joinder of necessary parties. Said submission of Ld.counsel for defendant is required to be rejected as although it is true that various invoices of M/s.JPB Bhatta Co. were filed alongwith the suit but PW1 in his evidence has chosen not to rely upon the invoices pertaining to M/s.JPB Bhatta Co., whose proprietor was Sh.Munshi Ram. Since plaintiff has chosen not to rely upon various invoices of M/s.JPB Bhatta Co. and has restricted his claim only to the invoices pertaining to plaintiff's proprietorship firm, therefore, the suit filed by plaintiff as proprietor of M/s.Shiv Bhatta Co. is very much maintainable and is not bad for non joinder of necessary party i.e. Sh.Munshi Ram, proprietor of M/s.JPB Bhatta Co.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 17/40 Accordingly, this issue is decided against the defendant and in favour of plaintiff.
37.Issues no.3 and 4.
(3) Whether plaintiff is entitled for recovery of sum of Rs.36,76,934/-? OPP (4) Whether plaintiff is entitled for any interest? If so, in what rate and at what amount? OPP Since both these issues are interconnected, therefore, they are being taken up together for disposal.
38.The onus to prove these issues was upon the plaintiff. Plaintiff is claiming the suit amount on the basis of purchase of bricks worth Rs.45,76,934/- by the defendant. The defendant has denied his liability on the ground that no transaction ever took place between the parties with regard to sale of bricks. The initial onus was upon the plaintiff to prove the sale of bricks to the defendant. In order to prove the sale, plaintiff was first required to prove the placing of purchase order for around 7-8 lacs bricks by the defendant in the month of November, 2020. As per the averments made in the plaint and as per the deposition made by PW1 in his evidence by affidavit Ex.PW1/A, it has come on record that defendant had placed the order for supply of bricks on 28.11.2020. However, neither in the plaint nor in the evidence by affidavit, it was averred or deposed by plaintiff as to how defendant came in contact with the plaintiff. It was only in the cross examination of PW1 recorded on 06.11.2023 that it was brought on record by PW1 that he had met defendant for the first time in November, 2020 at his petrol pump and from there, he came into contact with CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 18/40 the defendant due to his talking in his mother tongue. Thereafter, PW1 had met the defendant again on 5-6 occasions at his petrol pump and at Bharat Vihar and thereafter, he had visited the office of the defendant, at the first floor of the petrol pump, where defendant had mentioned about the requirement for bricks with regard to his construction business. All these facts, which have come in the cross examination of PW1 showing as to how PW1 got to know the defendant, had been deposed for the first time by plaintiff, as they were absent in the plaint or in his evidence by affidavit. Therefore, the story cooked up by the plaintiff regarding placing of an oral order by the defendant at his office, at the first floor of the petrol pump, is nothing but an after thought and, therefore, is not believable.
39.Secondly, it is not believable that any business transaction worth rupees more than 45 Lacs will be entered into orally. Generally, in such a big business transaction, the rate, advance payment, mode of payment, date of delivery, mode of delivery, place of delivery, how goods are required to be delivered etc. are negotiated and are reduced into writing, so as to avoid any kind of dispute with regard to price or the payment. However, in the present case, there is no such written purchase order brought on record by the plaintiff, which creates a doubt regarding placing of purchase order dated 28.11.2020 by the defendant upon the plaintiff.
40.It has further come in the evidence of PW1 that delivery of bricks as per the instructions of defendant started in the month of May, 2021. The plaintiff has nowhere explained in his CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 19/40 entire evidence as to how plaintiff and defendant used to communicate with regard to supply of bricks. Admittedly, plaintiff is based in Jhajjar, Haryana whereas defendant is having his place of business in Dwarka, New Delhi. Therefore, onus was upon the plaintiff to have established on record the mode of communication between plaintiff and the defendant as to how defendant had communicated to the plaintiff to take delivery of bricks from May, 2021 onwards. When two parties are located at a far off places, then in the natural course of business dealings, communication takes place over telephone or through whatsapp. However, in the present case, plaintiff has not filed on record any details regarding the mobile number of the defendant or any whatsapp chat between him and the defendant, to show that they were in regular touch with regard to delivery of bricks and it was at the instance of defendant that the delivery of bricks started in the month of May, 2021. The failure of the plaintiff to provide the mobile number of defendant or to bring on record other mode of communication with regard to business dealings, shows that there was no communication between plaintiff and the defendant and the question of defendant asking the plaintiff to resume delivery of bricks in the month of May, 2021 does not arise. Therefore, in the absence of any written or oral communication, plaintiff has failed to establish placing of purchase order of bricks by the defendant.
41.Even assuming that defendant had placed the purchase order upon the plaintiff for supply of bricks, then plaintiff was CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 20/40 required to prove the sale of bricks and its delivery to the defendant. In order to prove the sale, plaintiff has filed on record various invoices, which are Ex.PW1/3 (colly). It is admitted by PW1 in his cross examination that none of the invoice has been signed by the defendant and even the stamp appearing on the invoices, has not been put by the defendant personally. It is the case of the plaintiff that authorized persons of the defendant used to come and take delivery of bricks from their place of business i.e. Jhajjar, Haryana. The said fact has not been established on record by the plaintiff. The reason for the same is that in case, defendant had instructed the plaintiff for providing delivery of bricks from the month of May, 2021, then defendant must have communicated to the plaintiff over telephone or through whatsapp as to in what manner his representative will come to collect the bricks and also by sharing the vehicle details. However, no such communication has been filed on record.
42.Secondly, it has come in the cross examination of PW1 that on the basis of authorization shown by representative of defendant, the bricks used to be delivered to them. However, no authorization has been filed on record to support the deposition made by PW1 in his cross examination. Although PW1 has provided an explanation in his cross examination that he never used to retain the authorization but the explanation provided by PW1 is not believable as any person, who is into the business, will retain the authorization, in case goods are not being collected personally, to show delivery of bricks to the representative of the purchaser.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 21/40
43.Thirdly, as per the invoices Ex.PW1/3 (colly) filed on record, the bricks were allegedly delivered in the tractor of the defendant. However, in none of the invoices, registration number of the tractor is mentioned. The tractor is a motorized vehicle and as per the Motor Vehicle Act, 1988, it is required to be mandatorily registered. Therefore, if the defendant had indeed sent his tractor trolley for the collection of bricks, then any normal or prudent business man would have at least recorded the registration number of the tractor trolley on the invoices to show the delivery of bricks so that in case of any dispute, the owner of the tractor trolley could have been examined to prove the delivery / non-delivery thereof.
44.Further, during the course of cross examination of PW1, he was confronted with the invoice no. 832 dated 18.06.2021 forming part of Ex.PW1/3 (colly) which was in the name of Ashoka Construction. In the said invoice, the vehicle number was duly mentioned. When PW1 was confronted regarding the vehicle number, then PW1 offered an explanation that since it was a CNG truck and registration number was available, therefore, it was mentioned in the invoice. This explanation offered by PW1 for mentioning the registration number in invoice no. 832 of Ashoka Construction, shows that in case registration number of the vehicle taking delivery of bricks was available, then the same was being mentioned on the invoices. It is not the case of PW1 that the tractors, which had come to take delivery of bricks on behalf of defendant, were not registered and were not having any registration number. Therefore, it was incumbent upon PW1 to have CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 22/40 mentioned the registration number of the tractors, which had come to take delivery of bricks from the plaintiff, on behalf of the defendant. The very fact that registration number of the tractors despite being available, was not mentioned on the invoices Ex.PW1/3 (colly) shows that plaintiff had intentionally not mentioned the same, as mentioning registration numbers, would have exposed the falsity of invoices Ex.PW1/3 (colly) raised by plaintiff against the defendant.
45.Another aspect which creates a doubt regarding the invoices Ex.PW1/3 (colly) being genuine is the production of original bill book by PW1 in his cross examination, at the request of defendant. The bill book nos.16, 17 and 18 produced by PW1 having the carbon copy with regard to invoices Ex.PW1/3 (colly) were exhibited as Ex.PW1/D1 (colly). Thereafter, PW1 had admitted in his cross examination that Ex.PW1/D1 (colly) do not have any signatures / name of the driver or stamp of the defendant as are available in the carbon copies of invoices filed on record, which are Ex.PW1/3 (colly).
46.Since Ex.PW1/D1 (colly) was the carbon copy of Ex.PW1/3(colly), therefore, it ought to have the name / signature of the driver and stamp of the defendant on it to show that they are genuine tax invoices. However, the stamp and the signatures / name of the driver are missing from Ex.PW1/D1 (colly), which further establishes on record that the false invoices Ex.PW1/3 (colly) were prepared and filed on record just to create a false liability against defendant with regard to sale of bricks. Therefore, plaintiff has miserably failed to CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 23/40 prove the sale and delivery of bricks to the defendant, as per invoices Ex.PW1/3 (colly).
47.The next fact on which plaintiff has based his claim is the advance payment of Rs.9 Lacs transferred by defendant into the account of the plaintiff i.e. Rs.3,00,000/- on 02.12.2020 and Rs.6,00,000/- on 18.01.2021. It is the claim of plaintiff that the said amount of Rs.9 Lacs transferred by defendant was an advance payment, with regard to purchase of bricks from the plaintiff. DW1 in his cross examination has admitted about the transfer of Rs.9 Lacs to the plaintiff's firm through bank transfer. However, it was the defence of the defendant that the said amount was transferred to repay the loan taken by the defendant from Sh.Munshi Ram, son of the plaintiff through Gagan Goyal. Since defendant had taken up a defence that the amount of Rs.9 Lacs transferred to plaintiff was on account of repayment of loan, therefore, onus had shifted upon the defendant to establish his defence. In order to discharge the onus, defendant has relied upon the whatsapp chat, which took place between him and Gagan Goyal regarding the two loans taken by the defendant from Sh.Munshi Ram, son of plaintiff through Gagan Goyal. Said whatsapp chat is exhibited as Ex.DW1/4 (colly). The submission of the Ld.counsel for plaintiff that whatsapp chat Ex.DW1/4 (colly) is not admissible in evidence as the mobile number of Gagan Goyal is not reflecting therein and even the said Gagan Goyal has not been examined to prove the whatsapp chat, deserves to be rejected. The reason for the same is that the whatsapp chat Ex.DW1/4 (colly) is an electronic evidence and is duly CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 24/40 supported with the certificate under Section 65B of the Indian Evidence Act Ex.DW1/5. Therefore, Ex.DW1/4 (colly) is admissible in evidence. Further, at the time of tendering whatsapp chat Ex.DW1/4 by DW1 in his evidence, no objection was taken by the plaintiff with regard to mode of proof and even in the entire cross examination of DW1, whatsapp chat Ex.DW1/4 has not been challenged to be not between defendant and Gagan Goyal. If the defendant had challenged the whatsapp chat Ex.DW1/4 to be not between defendant and Gagan Goyal, then the onus would have shifted upon the defendant to have proved that these whatsapp chat were indeed between defendant and Gagan Goyal by the production of his original mobile phone having the whatsapp chat between him and Gagan Goyal or by summoning Gagan Goyal. However, that stage never arrived as plaintiff never challenged the whatsapp chat either at the time of tendering them in evidence or during the course of cross examination of DW1. Therefore, at the stage of final arguments, plaintiff cannot be allowed to challenge the admissibility of the whatsapp chat on the ground of same being not proved in the light of non-examination of Gagan Goyal or on account of non proving the whatsapp number of Gagan Goyal.
48.As per the evidence of DW1, he had taken the first loan of Rs.10 Lacs from Munshi Ram, son of plaintiff on 19.01.2020 through Gagan Goyal. The whatsapp chat Ex.DW1/4 dated 19.01.2020 corroborates the testimony of DW1 as in the said whatsapp chat dated 19.01.2020, Gagan Goyal has communicated with the defendant about the loan of Rs.10 CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 25/40 Lacs taken from Munshi Ram, which was required to be returned in five installments of Rs.2.40 Lacs each with first installment due on 06.02.2020. The whatsapp chat dated 06.02.2020 further shows that Gagan Goyal has sent a reminder to the defendant regarding the EMI due of Rs.2.40 Lacs to Sh.Munshi Ram. The said reminder for payment of EMI of Rs.2.40 Lacs towards Munshi Ram, by Gagan Goyal to defendant, has continued till 06.06.2020 and on 06.06.2020, Gagan Goyal had communicated to the defendant that last EMI of Rs.2.40 Lacs towards Munshi Ram is due on 05.07.2020. Thereafter, no reminder was issued by Gagan Goyal regarding EMI due of Rs.2.40 Lac towards Munshi Ram, which means that all five EMIs were paid by defendant to Gagan Goyal, on account of loan taken from Munshi Ram. From the aforesaid whatsapp chat, it is proved on record that defendant had taken a loan of Rs.10 Lacs from Sh.Munshi Ram through Gagan Goyal and had repaid the same in five equal installments of Rs.2.40 Lacs each.
49.With regard to second loan, the whatsapp chat shows that on 02.12.2020, plaintiff had shared his account details through cheque with Gagan Goyal, who had thereafter forwarded the said cheque to the defendant and thereafter, defendant had made payment of Rs.3 Lacs on 02.12.2020. The said fact is further corroborated by the bank statement of defendant, which is Ex.DW1/6. Further, the whatsapp chat shows that on 18.01.2021, Gagan Goyal had shared the account details through cheque of the plaintiff and had further demanded Rs.6 Lacs. Thereafter, defendant had transferred the same into the CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 26/40 account of the plaintiff on 18.01.2021 and the said fact is duly corroborated by the bank statement of defendant Ex.DW1/6. The genuineness of the whatsapp chat between Gagan Goyal and defendant is further corroborated by the admission made by PW1 in his cross examination. In his cross examination conducted on 16.10.2023 as well as on 06.11.2023, PW1 had admitted that he had shared his account details with Gagan Goyal on his whatsapp and thereafter, defendant had made bank transfer to the plaintiff.
50.The very fact that plaintiff was sharing his bank details with Gagan Goyal, who thereafter, had shared the bank details with the defendant, shows that there was no direct communication between plaintiff and defendant. In case, there was any sale transaction of bricks between plaintiff and defendant, then plaintiff would have, in the normal course of business, shared his bank details with the defendant and thereafter, defendant would have transferred the advance payment to the plaintiff directly. The very fact that payment was being routed through Gagan Goyal shows that firstly, there was no direct business dealings between the plaintiff and the defendant with regard to sale of bricks and secondly, that Gagan Goyal had a role to play in the arrangement of loan for defendant from Sh.Munshi Ram, son of the plaintiff and that is why account details were being shared by plaintiff with said Gagan Goyal and payment was being made by defendant through said Gagan Goyal.
51.The defendant had also made a payment of Rs.4 Lacs to Sh.Munshi Ram through bank transfer on 02.02.2021 through the said Gagan Goyal. It is the defence of defendant that the CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 27/40 payment of Rs.4 Lacs was made to Munshi Ram, son of plaintiff as per the directions given by Gagan Goyal through whatsapp. Said defence has been established on record in the light of whatsapp chat dated 02.02.2021 (part of Ex.DW1/4 (colly) wherein Gagan Goyal had shared the account details through cheque of Munshi Ram, proprietor of M/s.JPB Bhatta Co. and Rs.4 Lacs had been demanded urgently from the defendant on behalf of Munshi Ram. On the same day, defendant had replied that he had transferred Rs.4 Lacs into the account of Munshi Ram and said fact is duly corroborated by the bank statement Ex.DW1/6 having entry of 02.02.2021 showing transfer of Rs.4 Lacs into the account of M/s.JPB Bhatta Co.
52.PW1 in his cross examination admitted regarding receipt of aforementioned Rs.4 Lacs into the account of M/s.JPB Bhatta Co. but he further deposed that said amount was received on account of sale of bricks to the defendant. However, PW1 has failed to prove the said fact. The onus was upon the plaintiff to have proved the invoices through which bricks worth Rs.4 Lacs were sold to the defendant through M/s.JPB Bhatta Co. However, no document has been proved on record showing the sale of bricks worth Rs.4 Lacs to the defendant. The only document, which has been filed on record to show that sale of bricks worth Rs.4 Lacs had taken place is the GST returns Ex.PW1/D2. However, in the absence of any document showing sale and delivery of bricks worth Rs.4 Lacs to the defendant, GST returns Ex.PW1/D2 alone is not sufficient to prove the sale of bricks to the defendant. Even assuming that CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 28/40 GST returns Ex.PW1/D2 (colly) was filed with regard to sale of bricks to the defendant, then also it nowhere proves that bricks worth Rs.4 Lacs were sold to the defendant. As per GST returns Ex.PW1/D2 (colly), sale transaction has been shown of Rs.3,82,250/- and not of Rs.4,00,000/- as deposed by PW1 in his cross examination. Therefore, it is difficult to believe that defendant will transfer Rs.4 Lacs to Munshi Ram, proprietor of M/s.JPB Bhatta Co. when sale of bricks is for Rs. 3,82,250/-. Therefore, GST returns Ex.PW1/D2 (colly) nowhere proves the sale of bricks worth Rs.4 Lacs to the defendant.
53.Further, as per the GST returns Ex.PW1/D2 (colly), Input Tax Credit of Rs.19,112/- is being reflected therein. However, the witness of the defendant i.e. DW2 Sh.N.K.Gupta has proved on record that the Input Tax Credit of Rs.19,112/- deposited by M/s.JPB Bhatta Co. could not be availed by defendant as it was blocked due to late filing of GST returns by M/s.JPB Bhatta Co.
54.There was no cross examination of DW2 on the aspect of Input Tax Credit of Rs.19,112/- being not available to the defendant, as the same was blocked, which shows that said fact was admitted by plaintiff. The very fact that defendant had not claimed the Input Tax Credit of Rs.19,112/- further proves on record that no sale of bricks worth Rs.4 Lacs was made by M/s.JPB Bhatta Co. to the defendant. In case, there was any sale, defendant would have availed the Input Tax Credit of Rs.19,112/- from the GST portal. Further, the plaintiff has nowhere averred in his plaint regarding selling of bricks worth CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 29/40 Rs.4 Lacs to the defendant by the proprietorship concern of his son i.e. M/s.JPB Bhatta Co. even though invoices were filed on record alongwith the plaint and PW1 made improvement in his testimony at the stage of cross examination when he was confronted with Rs.4 Lacs transferred into the account of M/s.JPB Bhatta Co., which makes his testimony unreliable. Therefore, plaintiff has nowhere established on record that amount of Rs.4 Lacs transferred by defendant into the account of M/s.JPB Bhatta Co. on 02.02.2021 was on account of sale of bricks. On the other hand, defendant has established his defence that said amount was transferred through Gagan Goyal for repayment of the loan, as per the directions received from plaintiff and his son.
55. Once the defendant had established on record the payment of Rs.13 Lacs made to plaintiff and his son through Gagan Goyal with regard to the repayment of the loan, then onus had shifted upon the plaintiff to show that the said payment was not received against the loan but was on account of sale of bricks. However, as discussed hereinabove, the plaintiff has failed to discharge the onus put upon him to show the sale of bricks had taken place through invoices Ex.PW1/3 (colly) after receipt of advance payment of Rs.9 Lacs. Further, the plaintiff could have examined Gagan Goyal to show that payment received through him of Rs.13 Lacs was on account of sale of bricks and not with regard to repayment of loan. However, even said Gagan Goyal had not been examined by the plaintiff to disapprove that payment received through him was not with regard to repayment of loan. Therefore, plaintiff has failed to CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 30/40 prove that the advance payment received of Rs.9 Lacs was on account of sale of bricks.
56.The contention of Ld.counsel for plaintiff that no prudent business man will give loan in cash and will take repayment of loan in bank account and invite income tax, deserves to be rejected. The reason for the same is that defendant has transferred the loan repayment into the account of plaintiff and his son, as per the directions received by defendant through Gagan Goyal, who was in turn instructed by plaintiff and his son to get the amount transferred into the respective accounts by sharing the bank details. The very fact that account details were shared by the plaintiff and his son with Gagan Goyal on whatsapp chat shows that they wanted return of the loan into their respective bank accounts and there is a strong possibility that this act was done with the intention of converting the loan given in cash into legitimate bank entry by the plaintiff and his son.
57.The plaintiff has further relied upon three cheques Ex.PW1/5 (colly) to claim that these cheques were issued by defendant to discharge the liability towards the sale of bricks. The defence of the defendant was that blank signed cheques were given to Gagan Goyal, at the time of taking the loan and the same were misused in connivance with the plaintiff. The initial onus was upon the plaintiff to have proved that these cheques were handed over to plaintiff by defendant in discharge of liability towards the sale of bricks. As per the averments made in the plaint and in evidence by affidavit of PW1, it is the case of plaintiff that four cheques were already issued by defendant to CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 31/40 the plaintiff out of which three cheques of Rs.12 Lacs each were presented against liability towards sale of bricks. However, in the cross examination, PW1 took a contrary stand and deposed that he does not remember as to whether cheques issued by the defendant were prior to delivery or were issued post delivery and further deposed that they were issued in June, 2021 in the presence of Gagan Goyal. It is an admitted case of the plaintiff that delivery of bricks took place between 25.05.2021 till 29.06.2021. If we go by the averments made in the plaint and examination in chief by affidavit of PW1, then it is apparent that the alleged cheques were issued by defendant prior to delivery of bricks, as plaintiff had averred that cheques were already in possession of the plaintiff. If this version of the plaintiff is accepted, then it is not believable that defendant will issue four cheques to the plaintiff prior to delivery of bricks. No sane and prudent business man will issue four cheques to the seller prior to delivery of goods. Therefore, this version of the plaintiff is not believable and acceptable.
58.Further, if the version given by plaintiff in his cross examination is to be believed that the cheques were issued in the month of June, 2021 i.e. post delivery, in presence of Gagan Goyal, then also it is difficult to believe that defendant would have issued four cheques to discharge the liability towards the sale of bricks. As per the evidence of PW1, the cheques were issued to dishcarge the outstanding liability of Rs.36,76,934/-. If the version of PW1 is to be accepted, then defendant was definitely having the knowledge regarding his outstanding liabilities after the completion of delivery of CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 32/40 bricks. Therefore, defendant in the normal course of business dealings would have issued one cheque favouring the plaintiff of the outstanding amount to discharge his liability. The very fact that plaintiff was having possession of four cheques of defendant shows that the same were not issued in discharge of any legal liability.
59.Further, the admission made by PW1 in his cross examination of having received four cheques from the defendant in the presence of Gagan Goyal supports the defence of the defendant that he had given blank signed cheques to Gagan Goyal as security of the loan. PW1 in his cross examination recorded on 16.10.2023 admitted that particulars in the cheques, apart from the signatures, were filled up by him. This admission proves that defendant had not issued any cheque to the plaintiff in discharge of his liability as there was no requirement for the defendant to have given blank signed cheques to the plaintiff. The defendant could have easily given one duly filled up cheque to the plaintiff regarding the outstanding amount. The admission made by plaintiff that he had filled up the details in the cheque further supports the defence of the defendant that blank signed cheques given to Gagan Goyal were misused in connivance with plaintiff to create false liability upon the defendant regarding the sale of bricks.
60.Another fact, which creates a doubt regarding cheques being issued in discharge of liability is the date of cheques. The cheques Ex.PW1/5 (colly) show that they are dated 23.08.2021, 24.08.2021 and 25.08.2021 respectively. It is not CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 33/40 the case of the plaintiff that cheques were issued by the defendant in discharge of liability in instalments. Further, from the date of cheques, it is apparent that cheques were intended to be cleared within a span of three days. The plaintiff has not been able to explain as to why defendant issued three cheques drawn on the same bank and account for payment within a span of three days when one cheque would have sufficed. Ld. counsel for the plaintiff had heavily relied upon the police complaint made by defendant Ex. DW1/1 wherein no complaint was made against plaintiff regarding misuse of cheques to show that cheques were issued for liability. However, said contention deserves to be rejected as in his evidence, DW1 has explained that he had not made a complaint against misuse of cheques against plaintiff as he had given the cheques not to the plaintiff but to Gagan Goyal as security of loan and a legal notice regarding the misuse of cheques was also issued to Gagan Goyal. The explanation provided by DW1 in his cross examination deserves to be accepted and is further corroborated by legal notice dated 16.08.2021 Ex.DW1/7 addressed to Gagan Goyal. In the said legal notice, defendant has made a reference to taking of loans through Gagan Goyal from different financers including plaintiff and M/s. JPB Bhatta Co. and providing of 15 blank signed cheques of different banks i.e ICICI, HDFC, Kotak Mahindra and Indus towards security of loan. The said legal notice has been duly proved by DW3, who had produced the record of criminal revision filed by Gagan Goyal against framing of notice under section 251 Cr.P.C. with regard to CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 34/40 dishonorment of cheque issued in favour of defendant. In the said revision filed by Gagan Goyal, he had produced the legal notice Ex. DW1/7 and the record of revision filed by him produced by DW3 proves the legal notice Ex. DW1/7. The contents of the legal notice Ex. DW1/7 are duly corroborated by the whatsapp chat Ex. DW1/4 (colly) wherein chat shows that Gagan Goyal was arranging finance for the defendant through different financers and was sending reminders to defendant for making payment on the due dates towards different financers.
61.Further, in the legal notice although cheque numbers are not mentioned but the banks name on which the cheques were drawn i.e ICICI, HDFC, etc. are duly mentioned. The cheques in question are also drawn on HDFC bank, reference of which has been made in the legal notice Ex. DW1/7. Therefore, the legal notice issued to Gagan Goyal further establishes on record that blank signed cheques were issued by the defendant for security of loan and were given to Gagan Goyal and this fact is further corroborated by the admission made by plaintiff in his cross examination regarding receiving of blank signed cheques, which were duly filled up by the plaintiff.
62.The defence of the defendant that the cheques were misused by Gagan Goyal in connivance with plaintiff, has been established on record, on the preponderance of probabilities due to following reasons. Firstly, in the replication, plaintiff had admitted knowing Gagan Goyal but had denied that he had any role to play in the transaction in question. However, in his evidence, PW1 admitted that he had shared the bank details CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 35/40 with Gagan Goyal on whatsapp and has also admitted receiving of cheques in presence of Gagan Goyal. These admissions made by plaintiff are sufficient to hold that plaintiff was known to Gagan Goyal and the possibility of cheques, which were in possession of Gagan Goyal as security for the loan, being handed over to plaintiff for filing a false claim against the defendant showing the sale of bricks, cannot be ruled out. The reason for Gagan Goyal conniving with plaintiff for misuse of cheques can be understood in the light of facts narrated in the legal notice Ex.DW1/7 and on account of filing of a cheque bouncing case against Gagan Goyal by defendant.
63.As per the legal notice Ex.DW1/7, defendant had claimed Rs.1,37,19,000/- from Gagan Goyal and thereafter, on dishonorment of cheque issued by Gagan Goyal, a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 was filed against Gagan Goyal. In the backdrop of aforementioned facts, it is quite evident that said Gagan Goyal might have connived with the plaintiff and had handed over the blank signed cheques of the defendant, to the plaintiff for filing a false suit against the defendant. The same might have been done with the motive of putting pressure upon the defendant to settle the case filed under Section 138 of the NI Act, 1881 against Gagan Goyal.
64.In the light of aforesaid discussion, defendant has successfully discharged the burden put upon it to show that the cheques Ex.DW1/5 were not issued in discharge of liability towards sale of bricks but in fact were given to Gagan Goyal, as blank CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 36/40 signed cheques, for security of loan taken through Gagan Goyal.
65.Lastly, plaintiff has relied upon the GST deposit of Rs.2,16,700/- to show that bricks were in fact sold to defendant. In the opinion of this court, since this court has already arrived at a conclusion in the aforementioned part of the judgment that the sale and delivery of bricks has not been proved on record by plaintiff and the invoices filed on record are false and fabricated, therefore, filing of GST returns cannot prove the sale of bricks to the defendant. In the opinion of this court, just to add colour of authenticity to the sale transaction, plaintiff has deposited the GST amount of Rs.2,16,700/-. Depositing GST amount is no proof that sale has indeed taken place and plaintiff was required to prove the sale of bricks through invoices and its delivery, which plaintiff has failed to do so. Further, it is proved on record by the evidence of DW2 that Input Tax Credit of Rs.2,16,700/- was never claimed by the defendant and in fact same was reversed on 29.12.2022 by the defendant vide Ex.DW2/1. The evidence of DW2 proves that Input Tax Credit was never claimed by the defendant and had the defendant claimed the same, then there was no mechanism to reverse the said entry on the GST portal. The very fact that defendant had been able to reverse the entry of Rs.2,16,700/- on the GST portal by filing Form GSTR-9 Ex.DW2/1 shows that no sale of bricks ever took place between plaintiff and defendant and that is why defendant never claimed Input Tax Credit of Rs.2,16,700/-.
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 37/40
66. The contention of Ld.counsel for plaintiff that no prudent man will deposit GST amount of Rs.2,16,700/- against disputed amount of Rs.36,76,934/-, deserves to be rejected. The reason for the same is that plaintiff by depositing a small amount of Rs.2,16,700/- was unjustly trying to enrich himself by claiming an amount of Rs.36,76,934/- from the defendant. From the business point of view, if a person gets Rs.36,76,934/- against making investment of Rs.2,16,700/-, then it is a very profitable investment. Therefore, the deposit of Rs.2,16,700/- towards GST amount without there being any corresponding proof of sale and delivery of bricks to the defendant do not prove any sale of bricks to the defendant.
67.In the light of aforesaid discussion, plaintiff has failed to prove that he is entitled for recovery of sum of Rs.36,76,934/- alongwith interest from defendant. Accordingly, these issues are decided in favour of defendant and against the plaintiff.
68.Issue No.1 (1) Whether this court has got no territorial jurisdiction to entertain and proceed with the present matter? OPD The onus to prove this issue was upon the defendant. Since this court has come to a conclusion that invoices Ex.PW1/3 (colly) are false and fabricated, therefore, exclusion of jurisdiction of Delhi courts, as per invoices Ex.PW1/3 (colly) cannot be enforced. The reason for the same is that when two or more different courts have the jurisdiction to try a dispute, then parties by way of an agreement, can limit the jurisdiction to one particular court. [Reference in this regard is CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 38/40 made to the judgment of the Hon'ble Supreme Court of India delivered in Patel Roadways Ltd.case (supra)].
69.In the present case, the agreement, which was said to be relied upon was invoices Ex.PW1/3 (colly), which exclude the jurisdiction of Delhi Courts. However, since it has been proved on record that there was no agreement between the plaintiff and defendant for supply of bricks through invoices Ex.PW1/3 (colly), therefore, there was no agreement between the parties whereby jurisdiction of Delhi Courts was excluded. Hence, as per Section 20(a) of the CPC, suit could have been filed by the plaintiff in the jurisdiction of that court where defendant resides or carries on his business.
70.In the present case, it is an admitted fact that defendant is carrying on his business from Dwarka, New Delhi which falls in the jurisdiction of this court. Hence, suit filed by the plaintiff before this court is maintainable and cannot be dismissed for lack of jurisdiction. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
71.Issue No.5 Relief.
In the light of my finding given to issues no.3 and 4, the suit of plaintiff is dismissed. Since the plaintiff had filed a frivolous claim against defendant, on the basis of false and fabricated invoices Ex.PW1/3 (colly), this court while exercising its discretion under Secton 35(1) CPC, as applicable to the Commercial Courts Act, 2015, imposes a cost of Rs.50,000/- upon the plaintiff to be paid to defendant CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 39/40 within a period of one month from today. Decree sheet be prepared accordingly.
72. In terms of Order XX Rule 1 of CPC, as applicable to the Commercial Courts Act, 2015, a copy of the judgment be supplied to the parties through electronic mode as provided in the case information sheet / memo of parties. After completion of formalities, file be consigned to record room.
Announced in the open court Digitally signed
VIKAS by VIKAS
DHULL
Dated: 12.03.2025 DHULL 2025.03.12
Date:
15:32:50 +0530
(Vikas Dhull)
District Judge (Commercial Court)-02
South-West, Dwarka Courts
New Delhi
CS (COMM)/347/2022 M/s.Shiv Bhatta Co. Vs. M/s.BS Dwarka 40/40