Delhi District Court
Sh. Narendra Shah vs . M/S Nexus Design Project (P) Ltd. on 30 August, 2022
Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22
IN THE COURT OF MS. SONAM SINGHII, CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No. : 96645/16
CNR No. : DLCT030005882012
&
Counter Claim No. : 33/22
CNR No. : DLCT030042142022
Date of Filing of Suit: 03.03.2010
Date of Filing of CounterClaim: 16.02.2013
Date of Reserving Judgment: 20.08.2022
Date of Decision: 30.08.2022
Sh. Narendra Shah
Proprietor of M/S Jay Bharat Steel
223, Inside Ajmeri Gate,
Delhi110006
............Plaintiff /Non CounterClaimant
versus
M/S Nexus Design Project (P) Ltd.
C1/22, Safdarjung Development Area
Hauz Khas, New Delhi110016
...........Defendant /CounterClaimant
Suit for Recovery of Rs. 2,90,535/ with interest @24% p.a.
&
CounterClaim for Recovery of Rs 1,23,127/ with interest @15% p.a. &
Compensation
Page 1 of 23 (Sonam SinghII)
Civil Judge07, Central, Delhi
Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22
Present: None for parties.
JUDGMENT
1) Vide this common Judgment I shall decide the present suit filed by plaintiff against defendant for Rs 2,90,535/ along with interest @24% p.a. and counterclaim filed by defendant against plaintiff for Rs 1,23,127/ along with interest @15% p.a. and compensation for harassment & inconvenience.
Averments made in Plaint:
2) In the plaint, it is averred that plaintiff is the proprietor of M/S Jay Bharat Steel having its shop/ office at 223, Inside Ajmeri Gate, Delhi and is engaged in the business of stockiest and supply of stainless steels, pipe rounds plates sheets and chemicals plant copper brass etc. for last many years and the present suit has been filed by Sh. Narendar Shah, Proprietor of M/S Jay Bharat Steel. Defendant is a Private Limited Company and during the course of business transactions it had purchased goods from plaintiff against the various invoices with terms and conditions that payment shall be made within seven days from the receipt of goods failing which plaintiff shall be entitled to charge interest @24% per annum on all delayed payments. On above terms and conditions, defendant had purchased the goods as follows:
Sr. No. Date Bills number Amount
1. 09.04.2008 901 Rs.4,800/
2. 01.05.2008 917 Rs.35,900/
3. 18.06.2008 939 Rs.8,408/
4. 26.08.2008 963 Rs.64,821/
5. 29.09.2008 986 Rs.35,600/
6. 05.12.2008 1024 Rs.3,300/
7. 11.12.2008 1026 Rs.10,600/
8. 19.01.2009 1059 Rs.7,300/
9. 09.04.2009 1103 Rs.5,800/
Page 2 of 23 (Sonam SinghII)
Civil Judge07, Central, Delhi
Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22
10. 05.05.2009 1116 Rs.7,280/
11. 15.05.2009 1124 Rs.16,600/
12. 13.06.2009 1138 Rs.5,500/
13. 18.06.2009 1145 Rs.9,500/
14. 30.06.2009 1156 Rs.10,900/
15. 24.07.2009 1167 Rs.45,700/
16. 30.07.2009 1169 Rs.20,500/
17. 30.07.2009 1170 Rs.3,172/
18. 11.08.2009 1174 Rs.5,808/
19. 19.08.2009 1178 Rs.9,200/
20. 31.08.2009 1188 Rs.26,800/
It is averred that the total purchases made by defendant in the financial year from 01.04.2008 to 31.03.2009 is for a sum of Rs. 3,41,814/ and total payment was made by defendant by cheque for a sum of Rs.1,72,022/ including Rs.6,334/ transfer from M/S Nexus Design Project (P) Limited, Manesar leaving behind a sum of Rs.
2,03,054/ as outstanding balance including Rs. 33,262/ as opening balance. It is further averred that despite repeated visits and reminders by plaintiff including the legal demand notice dated 30.12.2009 qua the outstanding amount of Rs. 2,03,054/ along with interest @24 % per annum, defendant failed to pay the same. Hence, the present suit.
Version of Defendant qua the Suit filed by Plaintiff:
3) In its Written Statement (hereinafter 'WS') defendant has raised preliminary objections that plaintiff has concealed various facts and is trying to evade from his liability of paying money to defendant since he has received excess payment from defendant over the course of their transactions. It is stated that plaintiff has filed a ledger account showing purchases made by defendant, however, at the same time he has omitted/concealed the entire payment made by defendant and has tried to mislead the Court. It is stated that the parties have shared a long standing business relationship for over five years and were maintaining a running and open account Page 3 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 and although majority of the payments were made on bill to bill basis, the accounts of the parties were left open unsettled and running since various credit and debit notes adjustments were also made therein. It is stated that plaintiff in his suit has only chosen to file certain incomplete documents as per his own whims and fancies instead of filing all the documents and has also omitted various payments made by defendant over a period of time and has filed a false and fabricated ledger in order to play fraud. It is stated that as per the actual transaction between parties, defendant has in fact made excess payment to plaintiff after taking into account the debit notes and other adjournments to be made into the accounts which defendant is liable to recover from plaintiff and thus defendant has also filed a counter claim for recovery for the same. It is further stated that apart from various payments made to plaintiff, there were also various debit notes issued from time to time and same is also reflected in the ledger filed by plaintiff and defendant has also filed its own ledger to clarify & establish the total payments made to plaintiff. It is further stated that defendant never received any notice from plaintiff and is not liable to make any payment to plaintiff. Apart from this, defendant has mainly denied the averments contained in plaint.
Averments made in CounterClaim by Defendant:
4) In the counter claim filed by defendant, it is averred that same has been filed with the WS and the contents thereof be read as a part of the present counter claim and are not repeated herein for the sake of brevity. It is averred that the counterclaimant is a company registered under the Companies Registration Act, 1956 and the counter claim has been filed through its Director Mr. Devesh Bhatia duly authorized vide board resolution dated 04.02.2013. It is averred that the counter claimant and plaintiff started dealing with each other in the year 2005 and it used to place various orders for materials and plaintiff used to supply and take payment for the same. It is averred that initially the transactions between parties used to be on bill to bill basis and payment was made for each and every invoice, however, as transactions between the parties started increasing, they started maintaining a running account as Page 4 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 evident from the ledger filed by plaintiff although the same is not admitted by counter claimant as plaintiff has omitted various payments made by the counter claimant and fabricated the ledger as per itsown whims. It is further averred that the counter claimant made various purchases from plaintiff and made all the payments, however, plaintiff in its suit has only chosen to file certain incomplete documents and has also omitted various payments made to plaintiff over a period of time and has filed a false and fabricated ledger in order to play fraud. It is averred that as per the actual transaction between parties, the counter claimant has in fact made excess payment to plaintiff after taking into account the debit notes and other adjustments to be made into the accounts of parties and counter claimant is thus liable to recover the excess payments made to plaintiff. It is further averred that on a number of occasions, the bills were settled at a lesser amount than the invoice raised due to supply of inferior quality material and same was acknowledged by plaintiff at the time of settling the invoice. It is further stated that plaintiff had issued certain debit notes towards the settlement of various bills which has not been accounted for in plaintiff's ledger account and the same ought to be reduced from the said ledger account. It is further averred that the ledger account maintained & filed by counter claimant clearly shows the total number of purchases made by it and payments made to plaintiff for the same and the said ledger also shows the debit notes and adjustments to be made by plaintiff which it has failed to do so in its account/ledger. It is further averred that in the year 2009 there was fire at the premises of counter claimant due to which it lost a lot of documents, however, all the available true copies of the documents have been filed along with the present counter claim including FIR detailing the report of fire at the counter claimant's office. It is further averred that as per the accounts of counter claimant, after making all adjustments a sum of Rs 1,23,127/ is recoverable from plaintiff being excess payment made to plaintiff along with interest @15 % p.a. It is further stated that plaintiff is also liable to pay damages to the counterclaimant for initiating a false and malafide proceedings against it and further compensate towards the harassment and inconvenience caused.
Page 5 of 23 (Sonam SinghII)Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 Version of plaintiff qua the CounterClaim filed by Defendant:
5) In the WS to the counterclaim, plaintiff has raised preliminary objection and stated without admitting any of the averments contained in the counterclaim that it is barred by limitation having been instituted on 16.02.2013. It is stated that from the statement relied and filed by defendant itself the counter claim is barred by time. It is stated that the counter claim filed by defendant is liable to be dismissed as the same has not been signed, verified and filed in accordance with the High Court Rules. Plaintiff has also raised preliminary objection as to the absence of valid cause of action against him and stated that the counter claim has been filed as a counter blast to the suit filed by plaintiff. It is further objected that defendant has intentionally and deliberately concealed the actual and material facts, that the counterclaim is based on forged & fabricated documents and is thus liable to be dismissed under Section 35A of CPC. It is further stated that the submissions made in plaint and replication to the WS of defendant be read as part & parcel of this WS.
It is further stated that the following details would suffice to show that statement of account filed by defendant is absolutely forged and fabricated Transactions during the period 20052006:
(i) On 04.07.2005 the defendant/counterclaimant made payment of Rs.2100/, however, the defendant/counterclaimant in its statement of account illegally shown the said amount as Rs.2960/
(ii) On 10.03.2006 the defendant/counterclaimant in its statement of account has illegally shown a debit note for Rs.11576/, however, no debit note was ever received by the plaintiff.
(iii) On 18.03.2006 the defendant / counterclaimant in its statement of account illegally shown the said amount as Rs.28550/ as cash, in fact no cash has been received by the plaintiff from the defendant/counterclaimant.
Transactions during the period 20062007:
The following bills are not entered in the statement of account of the defendant/counterclaimant:Page 6 of 23 (Sonam SinghII)
Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22
(i) Bill No. 352 dated 08.04.2006 for Rs.9,600/
(ii) Bill No. 547 dated 14.12.2006 for Rs.16,700/
(iii) Bill No. 549 dated 17.12.2006 for Rs.3,746/
(iv) Bill No. 557 dated 17.01.2007 for Rs.15,035/ Transactions during the period 20072008:
The following bills are not entered in the statement of account of the defendant/counterclaimant:
(i) Bill No. 776 dated 31.08.2007 for a sum of Rs.3,300/
(ii) Bill No. 793 dated 19.09.2007 for Rs.15,600/
(iii) Bill No. 889 dated 31.03.2008 for a sum of Rs.55,100/ Transactions during the period 20082009:
(i) Bill no. 901 dated 09.04.2008 for a sum of Rs.4,800/ but the defendant/counter claimant show in his statement of account for a sum of Rs.4,524/
(ii) The defendant/counterclaimant has purchased against the bill no. 939 dated 10.06.2008 for a sum of Rs.4,325/ by cash, but the defendant/counterclaimant neither show the purchased nor show the cash paid against this bill in his statement of account.
(iii) On 06.05.2009, the defendant/counterclaimant in its statement of account has illegally shown a debit note for Rs.1,220/, however, no debit note was ever received by plaintiff.
(iv) On 25.08.2006, the defendant/counterclaimant in its statement of account has illegally shown a debit note for Rs.35,626/, however, no debit note was ever received by the plaintiff.
(v) An amount of Rs. 6,334/ received by plaintiff from Manesar Plant has been credited by plaintiff in the account but defendant did not show the said amount in his account book.
(vi) Plaintiff has not received the following cheques (total amounting to Rs 2,47,923/) as illegally shown by defendant/counterclaimant in the statement of account: Page 7 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22
Date Cheque No. Amount
21.03.2006 716340 Rs.40,386/
22.03.2008 148222 Rs.25,900/
30.05.2008 190330 Rs.55,000/
11.09.2008 807185 Rs.2,350/
11.09.2008 807186 Rs.9,600/
11.09.2008 807187 Rs.5,200/
11.09.2008 807188 Rs.15,600/
21.09.2008 807190 Rs.78,424/
01.10.2008 807189 Rs.15,643/
Transactions during the period 20082009:
All the debit and credit entries are entered in the books of account of the defendant/counterclaimant. Apart from above, plaintiff has mainly denied the averments contained in the counterclaim & reiterated his averments made earlier.
Replication by Plaintiff:
6) In his replication, plaintiff has stated that the WS filed by defendant is liable to be taken off the record as it has not been signed, verified and filed in accordance with the the High Court Rules and there is no verification in the said WS. Apart from this, plaintiff has mainly denied the contents of WS and reiterated & reaffirmed the averments made in plaint. Plaintiff has further reiterated the details of various transactions as stated in the WS filed by him to the counterclaim.
Settlement of Issues:
7) From the hearing of parties, pleadings and material available on record, the following (joint) issues were framed vide order dated 05.05.2015:
(i) Whether the suit of the plaintiff is based upon false and fabricated ledger?
OPD
(ii) Whether the plaintiff is entitled for the claimed sum? OPP
(iii) Whether the plaintiff is entitled for interest, if any? If yes, at what rate and Page 8 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 for what period? OPP
(iv) Whether the counter claim filed by the defendant is barred by the period of limitation? OPP
(v) Whether the counter claim is based upon the forged and fabricated documents? OPP
(vi) Whether the defendant is entitled for recovery of the sum of Rs 1,23,127/?
OPD
(vii) Whether the defendant is entitled for interest, if any? If yes, at what rate and for what period? OPD
(viii) Relief, if any.
8) Before discussing the evidence led by parties, it is to mention here that initially the suit of plaintiff was decreed exparte on 11.07.2011. However, vide order dated 15.01.2013 the application filed by defendant under Order IX Rule 13 of CPC was allowed thereby setting aside the exparte judgment & decree and the suit was restored to its original number. Thereafter, WS & CounterClaim was filed by defendant, and, vide order dated 22.08.2014 the CounterClaim was directed to be registered separately. Subsequently, vide order dated 24.07.2018 the CounterClaim & the main suit were again clubbed with the direction that the evidence led in the main suit shall also be read as evidence in CounterClaim. Further, vide order dated 12.08.2022 the counterclaim was directed to be registered separately for the sake of convenience & in order to avoid confusion; it was however clarified that both main suit as well as counterclaim shall be decided by one judgment as evidence qua both the matters were led in the main suit as directed earlier.
Plaintiff Evidence (PE):
9) On behalf of plaintiff two witnesses have been examined: (i) PW1: Sh. Narender Shah (Plaintiff himself) (ii) PW2: Sh. Sandeep Kumar.
PW1: Sh. Narender Shah has tendered his evidence by way of affidavit which is Ex. PW1/A and has relied upon the following documents:
Page 9 of 23 (Sonam SinghII)Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22
(i) Carbon copies of bill no. 901, 917, 939, 963, 989, 1024, 1026, 1059, 1103, 1116, 1124, 1138, 1145, 1156, 1167, 1169, 1170, 1174,1178 & 1188 as Exs. PW 1/1 and to PW 1/20.
(ii) Carbon copy of statement of accounts as Ex. PW 1/21.
(iii) Copy of legal notice dated 30.12.2009, original postal receipts and UPC as Ex. PW 1/22 (colly running into 3 pages).
(iv) Original AD card as Ex. PW1/23.
(v) Statement of Account as Ex. PW1/24(objected to as to the mode of proof).
(vi) Photocopies of bills nos. 547,549 and 557 as Mark A to Mark C.
In his crossexamination PW1 has stated that his firm is a proprietorship firm and after seeing the record, he stated that he has not filed any document to show that he is the proprietor of M/S Jai Bharat Steel. PW1 has stated that he used to supply stainless steel, sheets pipes, rounds flats circles, angles channels etc. and that defendant never stated any particular quality, however, the quality supplied was 304 grade. The witness has stated that he used to receive all the orders from defendant on telephone and sometimes through purchase orders and the written purchase order used to be given to him by the representative of defendant. The witness has stated that he also had various other transactions with the defendant apart from the transactions mentioned in para no. 6 of his affidavit and there was a running account being maintained by parties and no bill to bill payment was being made. The witness has further stated that at the initial stage of the dealing few payments were made by cash by defendant, thereafter, all payments were made by cheque. It is further stated that the material used to be supplied at the site requested by defendant. It is further stated that the suit has been filed on the basis of ledger account filed by him which is maintained by the accountant of plaintiff firm. It is further stated that the orders used to be placed by some purchase person of the defendant company and that he has also received some orders from Sh. Devesh Bhatia. The witness has denied that the material supplied was not as per the proper grade and quality and has stated that the material supplied by him to defendant was neither returned nor cancelled by defendant. He has further stated that after the material was supplied, the invoice used Page 10 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 to be given to defendant after taking the receiving on the same. The witness has denied that any cash payment was given to him by defendant in subsequent transactions. It is stated that he visited the office of defendant on multiple occasions at various offices/sites to demand the outstanding payment, however, he used to get false assurances. The witness has denied that he was ever told that he has received excess payment from defendant and has denied that any debit note was issued to him by the defendant. It is stated that he had orally informed the representative of the defendant that payment was to be made within seven days otherwise 24% interest would be levied on the outstanding payment and that the said condition is also mentioned on the invoice issued by him. He has further stated that he never demanded 24% interest from defendant on payments made as per running account. PW1 has further stated that he received various payments after the period seven days since running account was being maintained between parties and has denied that the suit filed by him is incorrect, false and based on fabricated documents. He has further denied that he owed any money to defendant or received any excess payment. He has further denied that the checks stated in para no. 10 of his affidavit were received by him. He has further denied that the said invoices in para no. 10 have been taken into account by defendant. The witness has lastly denied that he is deposing falsely.
PW2: Sh. Sandeep Kumar in his examinationinchief has deposed that he is the summoned witness in the present case and has brought the summoned record i.e. statement of account from 01.06.09 to 30.06.09 pertaining to Account of M/s Jay Bharat Steel bearing No. 209845 and same is Ex. PW2/1 (60 pages). In his cross examination, PW2 has stated that he was only required to submit record from 01.06.05 to 30.06.09 as per the summons of this court. He has stated that the account of M/S Jay Bharat Steel in the Royal Bank of Scotland for the duration 01.06.05 to 30.06.09 prior to 2013 RBS used to be called ABN Amro Bank. He has further stated that the statement of account submitted by him bears the stamp and seal of Bankers Book of Evidence and same is a certified true copy.
Page 11 of 23 (Sonam SinghII)Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 Defendant Evidence (DE):
10) On behalf of defendant/counterclaimant, three witnesses have been examined: (i) DW1: Sh. Devesh Bhatia (ii) DW2: Sh. Sunil Kumar Goyal, and (iii) Sh. Rajpal Singh.
DW1: Sh. Devesh Bhatia has tendered his evidence by way of affidavit which is Ex. DW1/A has relied on the following documents:
(i) Ex. DW1/1 Original Board Resolution dated 04th February 2013.
(ii) Ex. DW1/2 Copy of Ledger Account of the defendant company.
(iii) Ex. DW1/3 Copy of FIR dated 07.09.2009.
(iv) Ex. DW1/4 Copy of the debit notes issued by the defendant company.
In his crossexamination DW1 has stated that the defendant company is engaged in the business of manufacture and designing of furniture and has been dealing with plaintiff since 2005 to 2009 and several transactions have taken place between parties. The witness has stated that in 2009 he realized that excess amount had been paid to plaintiff and he had asked the plaintiff to adjust the excess amount against further supply of products, and since plaintiff did not adjust the amount the transactions did not take place. The witness has stated that he cannot recall the number of debit notes which were issued to plaintiff during 2005 to 2009, however, he can answer the same after looking at the ledger and after after going through the ledger Ex. DW1/2 the witness answered that one debit note was issued to plaintiff during the year 2005 to 2009 and the debit note was issued to plaintiff as he had supplied different quality of good than that which was ordered by defendant company. The witness then vol. stated that on several occasions as well the invoices presented by plaintiff were also returned or adjusted according to the supply of goods which was different than what was ordered and he has proof to show the same. The witness has then stated that he has not produced any document to show the same. The witness has further stated that he cannot say whether the debit note was actually received by plaintiff and that the adjustment in the invoices presented by plaintiff are proof that inferior quality goods were sold by plaintiff to the Page 12 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 defendant company. The witness has further stated that he has never personally visited plaintiff to make cash payments and does not have any receipt showing the cash payments made to plaintiff. He has then vol. stated that as all the records were burnt in a fire which took place at the factory and office of defendant company. It is further stated that the goods were delivered by plaintiff to the two factories of defendant company located at New Delhi and Manesar, Gurgaon, however, the location of the Manesar factory was later shifted to Okhla, New Delhi and the goods were delivered by plaintiff to Okhla factory as well. The witness after confrontation of bills at page no. 273 & 281 has admitted that they bear the stamp of defendant company. The witness was also confronted with page no. 275 and 277 of the court file which he has denied. The witness was confronted with bills dated 19.12.2007, 02.01.2008, 11.01.2008, 09.02.2008, 29.02.2008, 01.03.2008, 03.05.2008 and 05.05.2008 which are Ex. DW1/P1 to DW1/P8 respectively and stated that the said documents bear the address of the Manesar factory and further stated that Ex. DW 1/P7 and DW1/P8 could not be delivered to Manesar site as factory was shifted to Okhla, New Delhi on said dates. The witness has admitted that Ex. DW1/P1 to DW 1/P8 have not been reflected in the ledger account of the defendant company which is Ex. DW1/2. The witness has stated that he has shown all the entries in his ledger account only against which goods were accepted and vol. stated that certain bills were returned to plaintiff along with goods, however, he does not have any written acknowledgement to show the goods returned to plaintiff and that his ledger account is proof of that. The witness has denied that he has intentionally omitted to show the purchase made by defendant company from plaintiff for goods delivered to Manesar factory in ledger and further denied that he has only shown the payments in his ledger made by the defendant company to plaintiff against goods delivered to Manesar site. It is further stated that the factory manager was at Okhla factory from 2008 to 2009 and at the Manesar factory from 2007 to 2008 and that he does not have any document to show the appointment of these persons in the defendant company as documents were burnt in fire. It is further stated that he has never personally received the goods from plaintiff. The witness has denied that he has Page 13 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 fabricated the ledger filed by him and intentionally omitted several entries and added false and frivolous entries in the same. The witness has stated that he cannot say whether the goods mentioned in Ex. DW1/P1 to DW1/P8 were delivered to the defendant company or not. The witness has denied that plaintiff is not liable to pay a sum of Rs. 1,23,127/ and also denied that the defendant company is liable to pay to plaintiff the amount as claimed under the recovery suit. He has further stated that mode of acknowledgement against the receipt of goods by the defendant company was by affixing the stamp of defendant company along with signatures on the said bills. The witness has lastly denied that he is deposing falsely.
DW2: Sh. Sunil Kumar Goyal has tendered his evidence by way of affidavit and has relied upon the documents already exhibited as Ex. DW1/2 and Ex. DW1/4. In his crossexamination DW2 has stated that he has been working with the defendant company since 2008 till date as Accounts Executive/Officer. The witness has stated that there were around 15 to 20 sites of the defendant company where work was going on since he has been working with the defendant company. The witness has stated that he is not aware on which sites did plaintiff supply the materials during the relevant period and cannot recollect about the number of debit notes that were issued to plaintiff, however, some debit notes had been issued. The witness has further stated that the reason for issuing the debit notes was that the quality of goods supplied were inferior and the debit notes were received by plaintiff against acknowledgement thereon and he had personally taken the acknowledgement on the debit notes. The witness however again said that he had given the debit notes to Rajpal and had got the signatures on the same. PW2 has further stated that the accounting entries were always done by him on the instructions of the Director of the defendant company Mr. Devesh Bhatia and has further stated that he cannot remember against which bills were the debit notes prepared or issued to plaintiff. After going through Ex. DW1/2, the witness has answered that only four debit notes were issued during the relevant period, however, he could not answer against which bills the said debit notes were issued. The witness has stated that he is not aware Page 14 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 about any settlement between the parties and has further stated that he never checked the quality of goods supplied by plaintiff as it is not his duty. He has further stated that he cannot say under which bills inferior quality goods were supplied and that he is not involved in the purchase orders placed by defendant company and is not aware about the same. He has further stated that he is not involved in the business of company and that he has taken out the print out of Ex. DW1/2 but cannot remember when it was taken, however, the print out was taken using the office computer. The witness has admitted that he has merely made entries in the books of accounts at the sole instructions of the Director of defendant company Mr. Divesh Bhatia after verifying each and every entry and that he has not verified the quality of goods before issuing the debit notes. The witness has denied that he has manipulated the accounts of the defendant company on the instructions its Director and further denied that he is deposing falsely.
DW3: Sh. Rajpal Singh has tendered his evidence by way of affidavit which is Ex. DW3/A. In his crossexamination the witness has stated that he has been working with the defendant company for last 1314 years approximately and that he does not know for how long plaintiff has been dealing with the defendant company. The witness has stated that he is in charge of purchases of material for the defendant company and does not have any specific designation in the company. He has further stated that he was supervising each and every site of the defendant company and his duty under the site supervision was to supervise the labourers and provide them with the material required, if any. It is further stated that he used to get orders from the office or from the sites and used to place these orders to the material suppliers at their office/shop. It is further stated that the materials ordered by him were received by the site supervisors at different sites and that he has received materials on some occasion but does not remember. He has vol. stated that the site supervisors were only responsible for receiving the materials at site and the materials delivered were personally inspected and checked by the Director of defendant company and in case they were found of not proper quality (unpolished or with scratch or not of proper Page 15 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 specification) they were returned back. The witness has stated that the quality of materials can be verified by looking through the naked eye. He has further stated that he has never got the materials received from plaintiff verified and he never checked the said materials received from the plaintiff nor he ever called any person to check the material and it was the company only which used to call the Engineer for said purpose. He has further stated that he is not aware from where was the said Engineer called and the verification was never done in my own presence. The witness has stated that he has never personally returned the materials to plaintiff as the site supervisor used to do it. The witness has further answered that he does not remember anything with regards to any material returned to plaintiff and does not know in what manner the acknowledgement was given by the defendant company at the sites for materials received from plaintiff at these sites and does not have any knowledge about the same as the deliveries were taken by the respective site Supervisor. The witness after confrontation with Ex. PW1/14 on page No. 105 of the Court file has identified the stamp of the defendant company. He has stated that he cannot tell whether the stamp of the defendant company affixed on the bills of the plaintiff signify that the materials have been received or not as he is not aware of the same and further stated that he does not know if any acknowledgement was taken while returning the materials to plaintiff. The witness on confrontation with Ex. DW1/4 (colly) (consisting of two documents on page no. 249 and 251 of the court file.) has answered that he has not seen these documents before and has nothing to do with debit notes issued by the defendant company. The witness has denied that the goods of proper quality were always delivered by plaintiff and no returns were made by the defendant. He has further denied that goods supplied by plaintiff were of proper quality and were duly delivered and retained by the defendant without ever raising any dispute. The witness has lastly denied that he is deposing falsely.
11) Part final arguments were advanced on behalf of defendant on 17.09.2021 and final arguments were advanced on behalf of plaintiff on 23.03.2022. Written submissions have been filed by both sides.
Page 16 of 23 (Sonam SinghII)Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 Findings:
Issue no.1: Whether the suit of plaintiff is based upon false and fabricated ledger? OPD Issue no.5: Whether the counterclaim is based upon the forged and fabricated documents? OPP
12) Both the parties have alleged that the statement of account/ ledger relied upon by the opposite party is false and fabricated. Defendant in its WS has alleged that plaintiff has filed incomplete documents and has concealed/omitted to show the entire payment made by defendant and also not shown the debit notes & other adjustments therein. Plaintiff, on the other hand, has alleged that the counterclaim of defendant has not taken into account the various transactions entered between parties during 2005 to 2009 as stated in the WS filed by plaintiff to the counterclaim of defendant. Now, even though defendant has filed on record two debit notes which are Ex. 1/4 (colly), however, same doesn't bear the signatures of plaintiff or any endorsement therein and therefore cannot be relied upon in absence of proper proof. Apart from debit notes, defendant has not produced on record any other document to show that other adjustments were made between parties qua the various transactions entered between them. However, on perusal of Ex. PW2/1 (colly) it is revealed that payments made by defendant by way of cheques bearing no. 716340, 148222, 190330, 807185 to 807190 have been shown as deposits in the bank account of plaintiff firm, however, the said transactions have not been reflected in the statement of accounts of plaintiff which is Ex. PW1/21. Similarly, some of the purchase entries made by defendant from plaintiff even though admitted in their respective statements of accounts, do not reflect the said same amount such as purchases made qua voucher no. 323, 381, 468, 532, 901, etc. Plaintiff in order to prove the transaction of purchase qua voucher no. 901 has relied upon Ex. PW1/1 which is the carbon copy of the bill/tax invoice for Rs 4,800/ which also bears the stamp & signatures of the defendant company whereas in the statement of account filed by defendant, the said amount has been reflected as Rs 4,542/. DW1 in his cross examination has also admitted that the voucher bearing no. 901 bears the stamp of Page 17 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 defendant company. DW1 in his crossexamination has further admitted that Ex. DW1/P1 to DW1/P8 have not been reflected in the ledger account of defendant company. It is pertinent to note here that the said vouchers bear the seal and signatures of defendant company. It is to further note here that the said vouchers have not been reflected in the ledger account of plaintiff as well. From afore stated facts, it thus transpires that none of the parties has filed the complete & correct statement of accounts. Issues no. 1 & 5 are therefore decided against them.
Issue no.2: Whether the plaintiff is entitled for the claimed sum? OPP Issue no.6: Whether the defendant is entitled for recovery of the sum of Rs 1,23,127/? OPD
13) Both the issues are taken up together being interrelated and can be decided by common appreciation of evidence led by parties. Plaintiff/PW1 in his affidavit Ex. PW1/A has deposed that defendant had purchased the goods as stated in para no. 6 of his affidavit Ex. PW1/1 to Ex. PW1/20 in the financial year from 01.04.2008 to 31.03.2009 for a sum of Rs 3,41,814/ and a total payment of Rs 1,72,022/ was made by defendant by way of cheque including transfer of Rs 6,334/ leaving behind a sum of Rs 2,03,054/ as outstanding balance including Rs 33,262/ as opening balance. However, despite various visits and reminders by plaintiff including legal notice dated 30.12.2009 which is Ex. PW1/22 (colly3 pages), defendant failed to pay the same. PW1 has further deposed that defendant has credited the cheques in its statement of account, however, they were not received by plaintiff. He has further deposed that bills no. 547 for Rs 16700/, 549 for Rs 3746/ and 557 for Rs 15035/ exhibited as Mark A, B & C respectively have not been shown in the statement of account of defendant. The carbon copy of statement of account of plaintiff is Ex. PW1/21. DW1, on the other hand, in his affidavit which is Ex. DW1/A has deposed that plaintiff has omitted/concealed the entire payment made by defendant and has chosen to file incomplete documents. He has deposed that as per the actual transactions between parties, defendant has made an excess payment to plaintiff after taking into account the debit notes issued in order to compensate the deficiency Page 18 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 in quality of goods supplied by plaintiff & other adjustments to be made in the accounts of parties. DW1 has further deposed that payments against invoices mentioned in para 6 have already been made to plaintiff and to establish the same the ledger account of the defendant company is exhibited as Ex. DW1/2 and the debit notes are exhibited as Ex. DW1/4 (colly). DW1 has further deposed that defendant is not liable to make any payment to plaintiff, rather, defendant is entitled to recover the excess payment from him.
Now, on perusal of the statement of account of defendant which is Ex. DW1/2 it transpires that all the bills (Ex. PW1/1 to PW1/20) stated in para no. 6 of the Ex. PW1/A have been shown therein by the defendant company except for bill no. 901 i.e. Ex. PW1/1 which has been shown as Rs 4,524/ instead of Rs 4,800/. Further, even though Mark A, B & C have not been shown by defendant in its statement of account as alleged, however, perusal of the statement of account of plaintiff which is Ex. PW1/21 reveals that the said bills have also not been reflected by plaintiff in his ledger statement. Further, it is contended by DW1 that debit notes Ex. DW1/4 (colly) were issued by plaintiff is order to compensate the deficiency in quality of material supplied & excess billing, however, the said debit notes when perused shows that they neither bear the stamp of plaintiff nor his signatures and even DW1 in his crossexamination has stated that he cannot say whether the debit note was actually received by plaintiff. DW2 in his crossexamination has further stated that acknowledgment and signatures had been taken on the debit notes issued to plaintiff, however, as stated above, there is no acknowledgment or signature of plaintiff in the debit notes. DW3 in his crossexamination has also stated that he doesn't remember anything qua the material returned to plaintiff and doesn't know in what manner was the acknowledgment given by defendant company for materials received from plaintiff at the sites. He has further stated that he doesn't know if any acknowledgment was taken while returning the materials to plaintiff. He has further stated that he has not seen Ex. DW1/4 (colly) earlier and has nothing to do with the debit notes issued by defendant company. Moving further, DW1 in his affidavit has also deposed that apart from debit notes, other payments were made by defendant to Page 19 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 plaintiff in excess of goods supplied and the defendant company is therefore entitled to receive the same by way of counterclaim. Even though defendant company has only produced its statement of account & debit notes along with copy of FIR to show that fire had broken out in its office premises on 0607.09.2009, nevertheless, when Ex. PW2/1 (60 pages) is perused which is the statement of account of the firm of plaintiff i.e. M/S Jay Bharat Steel for the period 01.06.05 to 30.06.09, it is revealed that various payments made by the defendant company by way of cheques as reflected in its ledger Ex. DW1/2 have been shown as 'Deposit' in Ex. PW2/1 whereas the said cheques have not been reflected in the statement of account of plaintiff which is Ex. PW1/21. The details of said cheques are as follows: (i) Cheque no. 716340 for Rs 40,388/ deposited on 25.03.06 (ii) Cheque no. 148222 for Rs 25,900/ deposited on 25.03.08 (iii) Cheque no. 190330 for Rs 55,000/ deposited on 02.06.08 (iv) Cheques bearing no. 807185 to 807188 for Rs 2350, 9600, 5200 & 15600/ respectively deposited on 13.09.08 (v) Cheque no. 807190 for Rs 78,424/ deposited on 23.09.09, and (vi) Cheque no. 807189 for Rs 15,463/ deposited again after dishonor on 03.10.08. However, nothing has been brought on record to show that payment by way of cash was made by defendant to plaintiff. From above, it is thus clear that on the one hand, defendant has duly shown in its statement/ledger the goods supplied by plaintiff vide bills bearing Ex. PW1/1 to Ex. PW1/20 except for Ex. PW1/1 shown as Rs 4,524/ instead of Rs 4,800/, on the other hand, various payments made by the defendant company to plaintiff by way of cheques as discussed above have not been reflected in the statement of account of plaintiff which is Ex. PW1/21. As far as the contention of defendant qua the debit notes is concerned, same has not been duly proved by defendant as already stated above and therefore cannot be taken into consideration. Moreover, in respect of the contentions of plaintiff as made in his WS to the counterclaim qua various transactions during the period ranging from 2005 2009 as mentioned in para no. 5 above, it is to note that Rs 28,850/ received as cash has been shown in the statement of account of plaintiff Ex. PW1/21 on 18.03.06; bill no. 352 for Rs 9,600/ has been shown in defendant's statement of account Ex. DW1/2 at page 2 whereas bills no. 547, 549 & Page 20 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 557 for Rs 16700/, Rs 3746/ & Rs 15035/ have neither been shown in plaintiff's nor in defendant's statement of account; bill no.776 has been shown in Ex. DW1/2 for Rs 5,200/ & bills no. 793 & 889 have also been shown in Ex. DW1/2 at page 2; bill no. 901 has been shown in Ex. DW1/2 as Rs 4,524/ & bill no. 939 has been rightly shown by defendant in Ex. DW1/2 for Rs 8,408/(as stated in Ex. PW1/3). Similarly, plaintiff has contended that he has not received the cheques bearing no. 716340, 148222, 190330, 807185 to 807190 whereas all these cheques have been reflected in the plaintiff's bank statement filed on record which is Ex. PW2/1. Thus, in view of discussion made hereinabove, issue no. 2 is decided against plaintiff and issue no. 6 is decided in favor of defendant.
Issue no. 3: Whether the plaintiff is entitled for interest, if any? If yes, at what rate and for what period? OPP Issue no. 7: Whether the defendant is entitled for interest, if any? If yes, at what rate and for what period? OPD
14) Both the issues are taken up together and can be decided by common appreciation of evidence on record. Issue no.3 need not be discussed in view of findings arrived at issue no.2. With respect to issue no.7, defendant has claimed interest at the rate of 15% p.a against plaintiff. However, no evidence has been led to show that defendant is entitled to interest at such rate. Even no notice was issued by defendant to plaintiff in order to show that the excess payment was demanded by defendant from plaintiff including 15% interest thereon. However, as payment was made in the course of business transactions between parties, defendant in the interest of justice is held entitled to 6% rate of interest from the date of institution of counterclaim till its realization. Issue no.7 is thus decided accordingly.
Issue no. 4: Whether the counterclaim filed by the defendant is barred by the period of limitation? OPP
15) The onus to prove this issue was on plaintiff. Plaintiff in the WS to the counter claim has raised the preliminary objection that the counterclaim filed by defendant Page 21 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 is barred by limitation having been instituted on 16.02.2013. It is further submitted that from the statement relied & filed by defendant itself it is clear that the present counterclaim is barred by time. Order VIII Rule 6A (4) of the CPC provides that the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints. Defendant has filed the present counterclaim on the basis of its accounts after making all the adjustments and taking into consideration that the counter claimant/defendant had made an excessive payment of Rs 1,23,127/ to plaintiff and the same is recoverable at the rate of 15% p.a. as also averred in para no.14 of the counterclaim. It is, thus, clear that the counterclaim has been filed by defendant for recovery of Rs 1,23,127/ on the basis of its ledger which is Ex. DW1/2 and perusal of which reveals that it pertains to the period from 31.03.2005 to 31.08.2009. In the present counterclaim, the limitation period as per Ex. DW1/2 had commenced on 31.08.2009 which is the last date of transaction entered between parties and following which Rs 1,23,127.26/ has been claimed by defendant after all adjustments made in its ledger. Accordingly, the present counterclaim for recovery of said amount ought to have been filed within three years starting from 31.08.2009, whereas, record reveals that it was filed on 16.02.2013 i.e. after three years. Moreover, no notice has been produced on record by defendant to show that he had earlier demanded the excess payment made to the plaintiff, whereas, plaintiff has relied upon the legal notice dated 30.12.2009 issued to defendant along with original postal receipt & UPC as Ex. PW1/22 (colly 3 pages) and Original AD Card as Ex. PW1/23. As per Section 27 of The General Clauses Act, where any document is served by post, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. In the present case, defendant has not disputed the address at which the legal notice was sent by plaintiff nor has he led any evidence to prove that the notice was not served on him. Furthermore, defendant in its counterclaim has clearly averred that the transactions between the parties continued from year 2005 to year 2009. Thus, even when the limitation period is Page 22 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Narendra Shah vs. M/S Nexus Design Project (P) Ltd.
CS SCJ 96645/16 and Counter Claim no. 33/22 computed from the date of notice or 31.12.2009, it is would appear that the counter claim has been filed beyond the period of three years. Issue no.4 is thus decided in favor of plaintiff and against counterclaimant/defendant.
Relief:
16) In light of the findings arrived on Issues no. 1 & 2, the suit of plaintiff is hereby dismissed. Further, in light of findings arrived on issues no. 4 & 5, the counterclaim filed by defendant is also dismissed. No order as to costs. Decree sheets be prepared accordingly.
17) File be consigned to record room after due compliance.
Digitally signed by SONAM SONAM SINGH SINGH Date:
2022.08.30 16:48:42 +0530 Pronounced in open court: (Sonam SinghII) Dated: 30.08.2022 Civil Judge07, Central, Tis Hazari Courts, Delhi Note: This Judgment contains twenty three pages and all pages have been checked and signed by me.
(Sonam SinghII) Civil Judge07, Central, Tis Hazari Courts, Delhi Page 23 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi