Delhi District Court
Shri Sachin Walia vs Shri Vinod Gupta on 28 April, 2023
IN THE COURT OF
PREM KUMAR BARTHWAL, DISTRICT JUDGE
(COMMERCIAL COURT)-01 : SOUTH DISTRICT,
SAKET COURTS : NEW DELHI
CS (COMM) NO. 156/2020
CNR NO. DLST01-002702-2020
SHRI SACHIN WALIA,
PROPRIETOR OF AHLCON PAPERS,
R/O 57, GROUND FLOOR, BLOCK-V,
CHANDWOOD EROS GARDEN,
SURAJKUND, FARIDABAD,
HARYANA .....PLAINTIFF
VERSUS
SHRI VINOD GUPTA
PROPRIETOR OF SWAGAT PACKAGING
HOUSE NO. 5, ROAD NO. 29
SECOND AND THIRD FLOOR,
PUNJABI BAGH EXTENSION/WEST
NEW DELHI-110026
ALSO AT:-
C/O MANSAROVAR PACKAGING
PLOT NO. 2413, MIE PART-B
BAHADURGARH INDUSTRIAL AREA,
HARYANA .....DEFENDANT
Date of Institution: 07.03.2020
Reserved for judgment: 15.04.2023
Date of Judgment: 28.04.2023
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of Rs.46,43,138/- (Rupees Forty Six Lakh Forty Three Thousand One Hundred Thirty Eight Only) along with pendente lite and future interest @ 24% p.a. CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 1 of 21
2. The brief facts, according to the plaintiff, are that the plaintiff is the proprietor of M/s. Ahlcon Papers and he had supplied the ordered goods/paper reels to the defendant from time to time against various bills during the financial year 2016- 17 and 2017-18. It is submitted that as per the Statement of Account maintained by the plaintiff, a sum of Rs.30,15,025.30p (Rupees Thirty Lakh Fifteen Thousand Twenty Five and Paise Thirty Only) are due against the defendant and that in discharge of the legal liability, the defendant had issued cheque bearing no. 134524 dated 25.10.2017 for the sum of Rs.15,00,000/- and another cheque bearing no. 134525 dated 25.10.2017 for a sum of Rs.15,00,000/- both drawn on Corporation Bank, Branch Neb Sarai, New Delhi in favour of the plaintiff. It is further submitted that the abovesaid cheques, on presentation by the plaintiff to its banker, were dishonoured and hence, the plaintiff requested the defendant to pay the aforesaid cheque amounts but the defendant made excuses and did not pay the said amounts. It is submitted that a legal notice dated 06.11.2017 was sent to the defendant but despite the receipt of the same, the defendant had not paid the cheque amount to the plaintiff.
3. It is submitted that the plaintiff has also filed a complaint case U/s 138 of Negotiable Instruments Act which is pending before the Court of Ms. Alka Singh, Ld. MM Delhi vide complaint case No. 26332/2017. According to the plaintiff, the principal outstanding amount of Rs.30,15,025.30p (Rupees Thirty Lakh Fifteen Thousand Twenty Five and Paise Thirty Only) and Rs.16,28,114/- as interest thereupon from August 2017 to September 2019 @ 24% per annum i.e. a total amount of Rs.46,43,138/- (Rupees Forty Six Lakh Forty Three Thousand CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 2 of 21 One Hundred Thirty Eight Only) is outstanding and payable by the defendant as per the Statement of Account maintained by the plaintiff. It is further submitted that the defendant has failed to pay the outstanding amounts till date despite repeated requests, reminders/letters and phone calls. The plaintiff has also filed various bills alongwith Delivery Note, copies of VAT Returns and Ledger Account alongwith the plaint and the present suit has been filed by the plaintiff against the defendant for recovery of Rs.46,43,138/- (Rupees Forty Six Lakh Forty Three Thousand One Hundred Thirty Eight Only) alongwith interest.
4. Summons of the suit were issued to the defendant and the defendant, Mr. Vinod Gupta has contested the plaintiff's suit by filing written statement contending that the plaintiff has created a false account statement and invoices and that the plaintiff has concealed the cash amounts paid by the defendant from time to time to the plaintiff. It is contended that the defendant used to purchase goods from the plaintiff from time to time and plaintiff used to give the confirmation through Whatsapp on mobile bearing no. 9873489898 and the parties did not have any dispute till 30.03.2017 but thereafter, the plaintiff became dishonest and he firstly raised false and fabricated invoices and booked a fictitious sale of Rs.5,62,483/- in the name of defendant and also disregarded the cash amount of Rs.19,98,000/- paid by the defendant to plaintiff. It is contended that said amount was accepted by the plaintiff through his Whatsapp conversation dated 13.12.2016 and 31.03.2017. According to the defendant, the plaintiff had accepted cash amount of Rs.10,50,000/- on his Whatsapp message dated 13.12.2016 and through Whatsapp message dated 31.03.2017 the plaintiff had also sent a hand CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 3 of 21 written statement demanding Rs.23,258/- as balance outstanding dues till 31.03.2017 from the defendant but the plaintiff is showing his outstanding balance as Rs. 35,94,913/- in the present suit instead of Rs. 23,258/- which contradicts the plaintiff's Whatsapp conversation.
5. It is further contended by the defendant that the plaintiff has misused the security cheques handed over by the defendant at the time of business dealings and case filed U/s 138 of Negotiable Instrument Act against the defendant is a false case. It is contended that the plaintiff also handed over a blank security cheque bearing no. 134528 to M/s. B.K. Traders to create more pressure on the defendant and said M/s. B.K. Traders has also filed a case U/s 138 of Negotiable Instrument Acts against the defendant by misusing the said cheque. According to the defendant, the plaintiff has raised following false and fabricated invoices:-
i) Invoice no. 055 dtd. 25.04.2017 for Rs.28,683/-
ii) Invoice no. 159 dtd. 13.06.2017 for Rs.80,938/-
iii) Invoice no. 161 dtd. 16.06.2017 for Rs.87,133/-
iv) Invoice no. 166 dtd. 17.06.2017 for Rs.47,866/-
v) Invoice no. 168 dtd. 20.06.2017 for Rs.51,574/-
vi) Invoice no. 060 dtd. 31.03.2017 for Rs.1,12,636/-
vii) Invoice no. 102 dtd. 18.08.2017 for Rs.10,756/-
viii) Invoice no. 143 dtd. 30.08.2017 for Rs.46,597/-
6. It is contended that no goods were received by the defendant against aforementioned invoices and that the plaintiff has filed the present suit with dishonest intention to extort money from the defendant. It is contended in para 6 that the defendant had already paid/adjusted a sum of Rs. 19,98,000/- and the CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 4 of 21 liability of plaintiff has been cleared and the plaintiff has filed incomplete Statement of Account and that the plaintiff's suit is liable to be dismissed.
7. Replication to the defendant's written statement has been filed on behalf of plaintiff reiterating the averments made in the plaint and denying the allegations leveled by the defendants in Written Statement.
8. Admission/denial of the documents was conducted and Mr. Vinod Gupta admitted the legal notice dated 06.11.2017 which was marked as Ex. P-1 during the proceedings of 07.07.2022 and the plaintiff's counsel denied the documents of the defendant. From the pleadings of the parties and documents filed on record, following issues were framed on 07.07.2022 :
1. Whether the plaintiff is entitled for recovery of the suit amount, as prayed for? (OPP)
2. Whether the plaintiff is entitled to the interest? If so, at what rate and for which period?(OPP)
3. Relief.
9. Evidence in the matter was got recorded through Local Commissioner in terms of order dated 08.09.2022. Ahlmad from the Court of Sh. Rakesh Siddharth, Ld. P.O Special Court, NI Act, South Saket Courts, New Delhi was also summoned with judicial record of CC No. 26332/2017 titled 'Sachin Walia Vs. Vinod Gupta' and the plaintiff, Sh. Sachin Walia, proprietor of M/s. Ahlcon Papers has been examined as PW-1 who tendered his examination-in-chief vide affidavit Ex. PW1/1 and has relied upon the following documents:
1)Ex.PW1/A(OSR) ( colly.): Bills/invoices
2)Ex.PW1/B (OSR) (colly.) : Ledger CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 5 of 21
3) Ex.PW1/C (OSR) ( colly.): Cheques bearing no. 134524 and 134525.
4) Ex.P-1 : Legal Notice dated 06.11.2017
5) Ex.PW1/E (OSR)(Colly.): Complaint U/s 138 of NI Act bearing number CC No. 26332/2017
6) Ex. PW1/F (OSR) (Colly.): VAT returns (approved on 03.08.2016, 27.10.2016, 13.02.2017, 23.02.2018 & 22.07.2017)
7) Ex. PW1/G (OSR)(Colly.): Reply dated 12.11.2017
8) Ex. PW1/H: Non-Starter Report.
10. PW-1 was cross-examined by the ld. Counsel for the defendant and the said cross-examination shall be considered during the discussion on the issues. Plaintiff's evidence was closed on 14.09.2022 by Sh. Sachin Walia, plaintiff/proprietor of M/s. Ahlcon Papers.
11. Defendant, Sh. Vinod Gupta has been examined as DW-1 who tendered his evidence affidavit as Ex. DW1/A in examination-in-chief reiterating the contents of his written statement and he has relied upon the following documents:
1) Ex.DW1/1 :Printout of Whatsapp
Chat/Conversation between
plaintiff and defendant
2) Ex.DW1/2(colly. 2 pages) :Print out of Attachment of
Whatsapp
3) Ex.DW1/3 :copy of Statement of Account
4) Ex.DW1/4 :Certificate U/s 65B of Indian
Evidence Act.
12. DW1 was cross-examined by the plaintiff's counsel and same shall be considered/discussed during the findings on the issues. The defendant's evidence was closed on 11.11.2022.
13. I have heard the detailed arguments adduced by Sh. Mudit Sood, ld. Counsel for the plaintiff and Sh. Bharat Ahuja and Sh.
CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 6 of 21 Mukesh Kumar, Sh. Rahul Sharma, Sh. Pramod Aggarwal, ld. Counsels for the defendant and have carefully perused the record and considered the written submissions filed by the ld. counsels. My issue-wise findings are as under :-
ISSUE NO. 1 :
Whether the plaintiff is entitled for recovery of the suit amount, as prayed for? (OPP)
14. The onus to prove this issue is upon the plaintiff. The rules relating to burden of proof are based upon certain practical considerations of convenience and reasonableness and also of policy. The rules relating to burden of proof are as under :
(a) S 101: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(b) S 102: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
(c) S 103: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
15. The Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person on whom the burden lies has been able to discharge its burden.
16. The onus to prove issue no.1 was upon the plaintiff. The plaintiff examined himself as PW-1 and has categorically averred that he had supplied the ordered goods/paper reels to the defendant from time to time against the bills alongwith the CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 7 of 21 delivery note for the financial year 2016-17 and that VAT returns qua the goods supplied to the defendants are Ex. PW1/F. He further testified that according to the Ledger Account Ex.PW1/B maintained by him, a sum of Rs.30,15,025.30/- is outstanding against the defendant and in order to discharge the said liability, the defendant had issued two cheques bearing no. 134524 & 134525, both dated 25.10.2017 for a sum of Rs.15,00,000/- each, both drawn on Corporation Bank, Neb Sarai Branch in favour of the plaintiff which, on their presentation, were got dishonoured. In cross-examination dated 12.09.2022, PW-1 stated that the ledger account of his firm was prepared by his accountant and document Ex.PW1/F was prepared by the concerned government authority. He stated that the confirmation of receipt of goods was not taken from the purchaser on the VAT/GST returns filed with the department. He voluntarily stated that every time when the goods were received or delivered to the defendant thereof was either taken by the employee of the defendant or the transporter sent by him the acknowledgement of which was given by that person itself. PW-1 stated that he used to receive purchase order from the defendant on two numbers. He has testified that his firm is a proprietorship firm and he also files income tax returns of his firm. PW-1 has testified that the billing of Invoice No. 060 dated 31.07.2017 was done for the address of Neb Sarai, New Delhi mentioned at Buyer's column and the material was supplied at Bahadurgarh as mentioned in Consignee column and volunteered to say that the deliveries were made on Bahadurgarh address on request of the defendant when they informed about the shifting of their address and the vehicle sent by the defendant was used for picking up the goods. PW-1 has denied the CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 8 of 21 suggestions that the invoice no. 060 is a forged invoice and stated that as they have billed the defendant on Neb Sarai, Delhi address there was no need of mentioning GST number of Swagat Packaging, Bahadurgarh. He further deposed that he has not mentioned the name of Mansarovar packaging on the aforementioned invoice as he was asked by the defendant to mention Swagat Packaging. He testified that defendant and his brother used to work together for their firms. He also deposed that material qua invoice no. 102 dated 18.08.2017 (part of Ex.PW1/A) was delivered to Mansarovar Packaging, Bahadurgarh and billing was done for Swagat Packaging on defendant's request. In the cross-examination dated 14.09.2022, PW-1 has deposed that sometimes the invoices were signed by the representative of the purchaser and the delivery challan was signed by the transporter through whom the material was picked up. He stated that there was rare communications between himself and the defendant through emails/whatsapp etc. PW-1 also testified that delivery was also received by the transporter or somebody in the factory of the defendant. PW 1 vehemently denied the suggestion that the material mentioned in the shown invoices was not delivered to the defendant or that the same were false and fabricated. PW-1 has also denied that the printout of account statement filed by the defendant in respect of transactions with the plaintiff and categorically denied the suggestion that he has obtained a cash amount of Rs.10,50,000/- from the defendant on 05.12.2016. He further denied the suggestion that the defendant had made a payment of Rs.23,48,000/- against the aforementioned due amount till 31.03.2017 or that the defendant has no liability towards him as CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 9 of 21 on date. PW-1 denied the suggestion that the defendant had given five signed blank security cheques bearing nos. 134524 to 134528 or that he had handed over cheque bearing no. 134526 to M/s. B.K. Traders partner, Sh. Mohit Virmani. Thus, PW-1 Mr. Sachin Walia has testified on the same lines as his pleadings and he has categorically averred that the paper reels i.e. the goods in question were supplied by him to the defendant against the bills and delivery notes and even VAT (Value Added Tax) returns were also filed qua the said supplies with the government authorities. He has further stated in oath that ledger of payments with respect to the transactions with the defendant was maintained and the said ledger Ex.PW1/B has been proved by the plaintiff wherein outstanding to the tune of Rs.30,15,025.30 is reflected against the defendant. PW-1 Mr. Sachin Walia has also averred that the defendant had issued two cheques Ex.PW1/C (Colly.) for a sum of Rs.15,00,000/- each drawn on Corporation Bank, Neb Sarai Branch, New Delhi-68 in discharge of his legal liability, but the said cheques were dishonoured on presentation. The issuance of legal notice dated 06.11.2017 is not disputed by the defendant and the defendant, Mr. Vinod Gupta had himself admitted the legal notice dated 06.11.2017, Ex. P1 during the proceedings of admission/denial conducted on 07.07.2022.
17. Per contra, the defendant's case is that the plaintiff has created false and forged invoices and that the defendant had made cash payments which have been ignored by the plaintiff. Perusal of defendant's pleading as well as evidence affidavit,Ex DW1/A reveal that no date, time or place of cash payments by defendant has been mentioned in the entire written statement dated 22.07.2021. Even during his testimony as DW1, Mr. Vinod CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 10 of 21 Gupta, the defendant has not given any details or the defendant has not given any details or particulars of any cash payment made by defendant to the plaintiff. No independent witness to said cash transactions have been examined or got summoned by the defendant. The defendant has relied upon the whatsapp Conversation/chat between plaintiff and defendant Ex.DW1/1; Attachment of Whatsapp Ex.DW1/2 (colly) and a copy of Statement of Account Ex.DW1/3. The Ld. counsel for defendant has attempted to rely on the said Whatsapp message/chat exchanged between the parties but the said Whatsapp chats, Ex DW1/1 and Ex DW1/2 have not been proved in accordance of law. The defendant admits that he had to pay the plaintiff but the main defence raised by the defendant in his pleadings as well as his testimony is that he had made cash payments which were not taken into account/considered by the plaintiff. In para no.3 of his evidence affidavit Ex.DW1/A, the defendant has stated on oath that after 30.03.2017, the plaintiff booked the forged and fictitious sale of goods of value of Rs.5,62,483/- in the name of the defendant and the plaintiff did not mention the payment of Rs.19,98,000/- made by the defendant in cash to the plaintiff. However, no date, time or place of the said cash transaction/cash payments by the defendant have been detailed in the entire written statement as well as in the defence evidence affidavit of the defendant. DW-1, Mr. Vinod Gupta has stated during his cross-examination on 03.11.2022 that there were 16-17 employees working for him in the year 2016-17 and the accounting was done by him with the help of his one friend. He had also stated that there was no salaried accountant engaged by him. On being specifically asked he feigned ignorance by saying CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 11 of 21 "I do not remember at this moment as to how much dealings I had with the plaintiff from 2014-15 till 2016-17 in monetary terms". He also admitted that he had not reconciled the ledger filed by him and the plaintiff's ledger Ex.PW1/B. He also deposed that M/s. Swagat Packaging is still operational under his proprietorship and is engaged in business under different proprietorship firm. During his cross-examination on 04.11.2022, DW-1, Vinod Gupta has also admitted that the Plaintiff had mentioned in WhatsApp communication dated 23.10.2017 that "he does not deal in cash". Significantly, DW-1 Vinod Gupta admitted that he did not protest to the plaintiff's WhatsApp conversation/chat regarding not dealing in cash. He also admits that he had not sent any proof of cash payment during WhatsApp conversation Ex.DW1/1 and further he deposed during cross- examination that "it is correct that I have not obtained any written receipt of acknowledgment or cash from the Plaintiff". Strangely, he also deposed that he does not remember if he had any cash transaction with the plaintiff in the period between 2012-2016 or if he had paid Rs.19,98,000/- to the plaintiff after withdrawing the same from his bank account. He admitted that he had not disclosed the source of cash in his written statement and also had not taken any photographs or Video while handing over the cash to the plaintiff. The said deposition and the conduct of the defendant is not expected from any ordinary, reasonable or prudent man. The defendant has neither mentioned about the dates of the cash payments allegedly made by him. It has also not been pleaded or testified before the Court whether the amount of Rs.19,98,000/- was given by the defendant in one go or the same was paid on different dates in different installments. CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 12 of 21 Ld. Counsel for defendant has admitted and placed reliance on the WhatsApp communication Ex.DW1/1 and Ex.DW1/2, but in the communication dated 23.10.2017 at 7.05 p.m. there is message by the plaintiff "We do not deal in cash". Significantly, the mobile instrument on which the said WhatsApp message were received by the defendant has not been produced in the Court. The so called statement of account Ex.DW1/3 being relied by the defendant also does not reflect the date/dates on which cash payment was made by the defendant to the plaintiff. The entry dated 05.12.2016 on Ex.DW1/3 only records cash paid upto 05.12.2016 whereas the entry dated 31.03.2017 in DW1/3 records about WhatsApp showing balance payment is received up to 31.03.2017. The date when the document Ex.DW1/3 was prepared or printout has not been mentioned in the entire affidavit/certificate given under Section 65B of Indian Evidence Act. The documents being relied by the defendant i.e whatsapp chat as well as statement Ex. DW-1/3 are computer outputs of electronic records. It is settled law that an electronic record is required to be proved as per section 65 B of Evidence Act. In Anvar P.V. Versus P.K. Basheer and others Civil Appeal No. 4226 of 2012 (Judgment dated 18.09.2014), a three-judge bench of Hon'ble Supreme Court has dealt with the issue of admissibility of electronic records and mode of proof of a documentary evidence in the form of electronic record. It has noted as follows:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 13 of 21 may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents;
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
14. Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 14 of 21
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence. ........
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 15 of 21 secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65 B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
18. In a reference judgment in Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal Civil Appeal Nos. 20825-20826 of 2017 (Judgment dated 14.07.2020), Hon'ble Supreme Court has examined and interpreted section 65 B of Indian Evidence Act to hold that Anvar P.V. (supra) holds the ground in the field of electronic evidence. It has been noted as follows:
"72. The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65 B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 16 of 21 where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65 B (1), together with the requisite certificate under Section 65B (4). The last sentence in Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
19. Thus, any document which is an electronic record can not be relied upon unless it is proved in accordance with section 65 B of Evidence Act. In the instant case, the records of WhatsApp Chat have been taken from a device which is not a secured device. As already noted above, the WhatsApp chat were downloaded from a computer system which has not been identified by the defendant. Thus, the certificate Ex. DW-1/4 given by the defendant has no value and can not be relied upon. Significantly, Order XI Rule 6 (3) of the Code of Civil Procedure,(as amended and applicable in commercial cases) regarding electronic records mandates the declaration on oath to be filed by a party specifying (a) the parties to such Electronic Record; (b) the manner in which such electronic record was produced and by whom; (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time when the electronic record was printed; (e) in case of e-mail ids, details of ownership, custody and access to such e-mail ids; (f) in case of documents stored on a computer or computer resource (including CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 17 of 21 on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource; (g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;(i) that the printout or copy furnished was taken from the original computer or computer resource.
20. However, majority of above said information required to be specified in terms of Order XI Rule 6 (3) of CPC elicited above, is not even contained in the affidavit (certificate) of defendant,Ex. DW-1/4 filed under Section 65B of the Indian Evidence Act which only in vague terms is containing an endeavor to put forth of compliance of conditions of Order XI Rule 6 (3) of CPC .For want of above said requisite specified information compliant of Order XI Rule 6 (3) (a) to (i) CPC, the electronic record/Whatsapp chat/statement of account of defendant has no evidentiary value. The defendant was in possession of best evidence regarding cash payment/cash transactions between him and the plaintiff. No reason is forthwith coming as to why no date, time or place of said cash payment has been brought on record. Significantly, the defendant himself has not produced its books of account. The same would have positively reflected the details of cash payments, if any, made by the defendant to the plaintiff. Non production of its regular books of account or duly audited balance sheet points towards the falsity of defendant's claim of cash payment and this Court is constrained to take adverse inference against the defendant due to CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 18 of 21 non-production of its books of accounts.Pertinently the defendant, Vinod Gupta,DW-1 has stated during his cross- examination on 03.11.2022that he is residing at 29/5, Punjabi Bagh, New Delhi-110026 and that he was residing at the address mentioned in the affidavit Ex.DW-1/Aonly till October/November 2017. He also admitted that on the date of signing of Ex.DW-1/A he was not residing at the address mentioned in Ex.DW-1/A. The Ld. Counsel for the defendant has failed to explain reasons for giving false/incorrect residential address in the evidence affidavit Ex. DW-1/A as well as at the time of defendant's testimony. The defendant has also not filed his proper ledger/account statement regarding commercial transaction with the plaintiff. The defendant has also not examined or summoned his employees or friends who is stated to have helped him in preparing/maintaining his account statement. Handing over of the cheques is being admitted by the defendant but his story of five different blank cheques towards the security or the plaintiff giving some cheques to third party to plaintiff's competitors in business i.e. M/s BK Traders does not elicit any confidence in the mind of this court. The defendant has contended that eight invoices of sale transactions were forged/fabricated by the plaintiff but no police complaint has been filed or proved on record. The said conduct of the defendant also belies the logic of any ordinarily reasonable prudent person. In the considered opinion of this court, the defendant has miserable failed to prove on record that any cash payments were made by the defendant to the plaintiff on the scale of preponderance of probabilities. On the other hand, from the testimony of the witnesses and the documents proved on record, the plaintiff has established on CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 19 of 21 record that the defendant is liable to pay a sum of Rs.46,43,138/- to the plaintiff on the scales of preponderance of probabilities and the plaintiff is entitled for recovery of the same. Further, the suit is well within limitation. Accordingly, the issue no.1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2 :
Whether the plaintiff is entitled to the interest? If so, at what rate and for which period?(OPP)
21. Plaintiff has claimed pendente lite and future interest @ 24% per annum till realization from defendant. Order VII Rule 2A of CPC in respect of a commercial dispute of a specified value was brought in by way of amendment in respect of the requirements of pleadings where interest has been claimed by the plaintiff. Peusal of the invoices Ex. PW1/A reveals that if the payment is not made within 15 days then interest @ 24% was to be charged. Under Section 34 of CPC it is provided that where the liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest. Accordingly, the plaintiff is entitled for the contractual rate of interest of 24% per annum on its outstanding amounts till filing of the suit. However, keeping in view the prevalent rate of interest in nationalized banks in such transactions and the covid 19 pendemic situation, interest of justice will be served if plaintiff is allowed pendente-lite and future interest @ 12% per annum.
CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 20 of 21 ISSUE NO. 3:
Relief.
22. In view of the foregoing discussion and findings on issue no. 1 and 2, the plaintiff is held to be entitled for recovery of an amount of Rs.46,43,138/- (Rupees Forty Six Lakh Forty Three Thousand One Hundred Thirty Eight only) from the defendant alongwith pendente lite and future interest @ 12% peer annum from date of filing of suit till its realization from the defendant.
23. Plaintiff has also claimed the cost of the suit. Keeping in view Section 35 and 35A of CPC and particularly when the defendant himself is responsible for the litigation, he is held to be liable to bear the costs to the extent of court fees, Advocate fee,renumerations/charges paid to the LC etc. Accordingly, the plaintiff is entitled for the costs of litigation. The advocate fee is assessed to be Rs.35,000/- only and same is hereby awarded in favour of the plaintiff. Cost of the suit, as mentioned above, are hereby awarded in favour of plaintiff and against the defendant.
Decree sheet be prepared accordingly.
24. File be consigned to record room after necessary compliance.
Announced in the open Court on 28th Day of April 2023 (Prem Kumar Barthwal) District Judge (Commercial Court)-01, South District/Saket Court, New Delhi.
CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 21 of 21 CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 22 of 21 CS (COMM)156/20 SACHIN WALIA Vs. VINOD GUPTA 28.04.2023 Present : Sh. Mudit Sood, ld. Counsel for the plaintiff.
Sh. Naveen Tanwar, ld. Counsel for the defendant. Written submissions/synopsis filed on behalf of defendant is on record. Arguments concluded from both side.
Put up for orders at 4.00 pm. (Prem Kumar Barthwal) District Judge (Commercial Court)-01 (South)/Saket Courts, New Delhi/28.04.2023 At 4.00 pm. Present: None.
Vide separate judgment dictated, typed and announced in the open court today, the suit of the plaintiff stands decreed for an amount of Rs.46,43,138/- (Rupees Forty Six Lakh Forty Three Thousand One Hundred Thirty Eight only) as the manner indicated therein. Decree-sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
(Prem Kumar Barthwal) District Judge (Commercial Court)-01 (South)/Saket Courts, New Delhi/28.04.2023 CS (Comm) No. 156/20 Sachin Walia Vs. Vinod Gupta Page No.: 23 of 21