Delhi District Court
Hydrotech Marketing P Ltd vs Surender Kumar on 15 September, 2023
IN THE COURT OF Dr. KAMINI LAU: DISTRICT JUDGE
(COMMERCIAL COURT)02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS (COMM.) No. 42/2021
CNR No. DLCT010097762021
M/s. Hydrotech Marketing (P) Ltd.
LG144, Anarkali Complex,
Jhandewalan Extension, New Delhi
Through its Director
Sh. S.N. Sharma
......Plaintiff
Versus
M/s. Surender Kumar
Through its Proprietor/ Partner/ Director
A43, Shivalik Malviya Nagar,
New Delhi - 110017
......Defendant
Date of filing of suit: 05.01.2021
Arguments concluded on: 16.08.2023
Date of Judgment: 15.09.2023
TABLE OF CONTENTS
Sr. No. Title Page No.
1 Brief facts/ Case of the petitioner 23
2 Case of the Defendant 36
3 Issues 67
4 Evidence & List of Documents 820
5 Findings & Observations 2042
6 Conclusion/ Relief 4243
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021
Judgment dated 15.09.2023 Page No. 1 of 43
Present: Sh. Ghanshyam Dass Sharma Advocate for the
plaintiff.
Sh. Mohit Madan Advocate for the Defendant.
JUDGMENT:
(1) This Civil Suit was filed by the plaintiff M/s. Hydrotech Marketing (P) Ltd. seeking recovery of a sum of Rs.3,05,377/ (Rupees Three Lacs, Five Thousand, Three Hundred Seventy Seven only) along with pendentelite and future interest from the defendant M/s. Surender Kumar.
BRIEF FACTS:
Case of the plaintiff:
(2) The plaintiff M/s. Hydrotech Marketing (P) Ltd. is a Private Limited Company duly incorporation under the Companies Act and engaged in the business of trading of water pumps/ motors etc. and Sh. S.N. Sharma is one of the Directors of the plaintiff company. The case of the plaintiff is as under:
➢ That the defendant is having business relations with the plaintiff and the defendant had approached the plaintiff for purchasing certain materials.
➢ That as per the purchase orders placed by the defendant, the plaintiff supplied pumps and other accessories to the defendant for their IRCT Project at Sector44, Institutional Area, Plot No.3, Gurugram, Haryana since 15.09.2016 and lastly supplied KD844, GM/MS/SS against the Invoice No. 182 dated M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 2 of 43 30.08.2017 for Rs.30,556/.
➢ That the plaintiff company time to time raised the invoices for supplied materials and same were submitted to the defendant.
➢ That as per the statement of account maintained by the plaintiff company a sum of Rs.3,05,377/ is due upon the defendant.
➢ That the plaintiff company made several requests to the defendant on number of times to clear the overdue amount but the defendant intentionally and deliberately avoided the same on one pretext or the other. ➢ That the plaintiff got served a legal notice dated 31.01.2020 upon the defendant and later on corrigendum dated 13.02.2020 thereby calling upon the defendant to make the payment along with interest. ➢ That the said notice was duly served upon the defendant by way of Speed Post but despite service of the same the defendant has failed to clear the same. ➢ That the defendant has withheld the amount without any rhyme and reason and hence, the defendant is liable to pay the above amount along with interest @ 18% per annum from the date of filing of the suit till realization.
Case of the defendant:
(3) The defendant M/s. Surender Kumar through its Partner Sh. Nitin Singhal has filed a detailed written statement.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 3 of 43 The case of the defendant is as under:
➢ That the suit of the plaintiff is defective since the plaint has not been filed as per the provisions of Commercial Courts Act, 2015 and Section 26, Order VI Rule 15A, Order VII Rule 2A, Order XI Rule 1(2) and Order XI Rule 6(3) of CPC.
➢ That this Court does not have the Territorial Jurisdiction to try the present suit which is also barred by Limitation.
➢ That the relief of interest as claimed by the plaintiff is not maintainable and barred under Section 34 of CPC. ➢ That the plaintiff has not approached this Court with clean hands and has not only suppressed the material facts from the Court but have filed the suit on the basis of false, fabricated and forged invoices/ bills. ➢ That there is no cause of action against the defendant who has never received the goods mentioned in the bill dated 09.06.2017 and 29.06.2017 as alleged by the plaintiff.
➢ That the defendant used to have business relations with the plaintiff but since August 2017 there has been no business relations between the plaintiff and the defendant.
➢ That the defendant is an unregistered partnership firm with Sh. Surender Kumar Singhal and Sh. Nitin Singhal as Partners.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 4 of 43 ➢ That in the year 2016 the defendant firm was carrying out the construction of IRCTC Project at Sector44, Institutional Area, Plot No.3, Gurugram, Haryana when Sh. A.S. Sharma approached the defendant representing himself as Director of the plaintiff and proposed to supply and deliver the various pumps and other accessories to the defendant. ➢ That from 15.09.2016 to 30.08.2017 the plaintiff supplied various materials and the orders to supply the materials were given orally by the defendant at the above project side or telephonically. ➢ That the plaintiff had time to time raised invoices for supplied materials which were submitted to the defendant and the defendant has made all payments of the invoices raised by the defendant and in fact, the defendant has made payments more than the invoices. ➢ That the three invoices filed by the plaintiff i.e. Invoice dated 09.06.2017 of Rs.1,30,532/; dated 13.06.2017 of Rs.3,09,950/ and dated 29.06.2017 of Rs.2,17,400/ are forged and fabricated.
➢ That the goods mentioned in bill dated 09.06.2017 and bill dated 29.06.2017 have never been supplied by the plaintiff and only the goods mentioned in the bill/ invoice dated 13.06.2017 have been supplied to the defendant.
➢ That not only the signatures on the above three forged bills are totally different from the signatures on other M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 5 of 43 bills but also the GSTIN number has been mentioned on all the bills of June 2017 whereas no taxes as per the GST has been levied and even the notification regarding the CGST came only on 01.07.2017 and the GSTIN numbers were allocated much later. ➢ That even in the bill dated 03.08.2017 filed by the plaintiff, no GSTIN number has been mentioned since in all probabilities till 03.082017 the plaintiff was not allocated with the GSTIN Number.
➢ That in the month of June 2017 the defendant made payment over and above the goods already supplied by the plaintiff on the basis of oral quotation given by the plaintiff but the plaintiff delayed the complete delivery of the ordered material as the same was supplied only on 03.08.2017 and 30.08.2017.
➢ That since the invoices were much lesser than that was quoted by the plaintiff and also because of uncertainty with regard to rate of tax, an amount of Rs.42,595/ has been paid in excess to the plaintiff by the defendant which the plaintiff is liable to return.
ISSUES:
(4) The plaintiff has filed its Replication to the written statement filed by the defendant, wherein the plaintiff has reaffirmed what has been earlier stated in the plaint. However, here it has become necessary to bring on record a material fact relevant to the issues in dispute. Along with the replication the M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 6 of 43 plaintiff introduced three invoices i.e. Invoice dated 09.06.2017 for a sum of Rs.1,30,532/; Invoice dated 13.06.2017 for a sum of Rs.3,09,950/ and Invoice dated 29.06.2017 for a sum of Rs.2,17,400/ which are different to the invoices filed along with the plaint with regard to which Statement of Truth was filed. No formal application was filed by the plaintiff before the Ld. Predecessor of this Court seeking permission for the same.
Having introduced these documents along with the replication, the defendant was handicapped in admitting or denying the same. (Note: These documents have not been exhibited by the plaintiff nor the copies of the same initially filed). (5) On the basis of pleadings of the parties, vide order dated 02.08.2022 the Ld. Predecessor of this Court has settled the following issues:
i. Whether the plaintiff is entitled for the recovery of the amount of Rs.3,05,377/ as claimed in the plaint?
(OPP) ii. Whether the plaintiff has no cause of action to file the present suit against the defendants? (OPD) iii. Whether this court no territorial jurisdiction to try the present suit? (OPD) iv. Whether the invoices dated 09.06.2017, 13.06.2017 and 29.06.2017 filed along with the plaint are forged and fabricated? (OPD) v. Whether the plaintiff is entitled for the pendentelite and future interest, if so at what rate and for what period? (OPP) M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 7 of 43 vi. Relief.
EVIDENCE & LIST OF DOCUMENTS:
(6) In order to prove its case the plaintiff has examined two witnesses i.e. its Director Sh. Shyam Narain Sharma as PW1 and one K.K. Mehra as PW2. On the other hand, the defendant has examined its Partner namely Nitin Singhal as DW1 as its sole witness.
(7) Before coming to the testimonies of the various witnesses examined by the parties, the documents relied upon by them are hereby put in a tabulated form as under:
List of documents:
Sr. Exhibit No. Details of document Proved by No. Documents relied upon by the plaintiff:
1. Mark A Photocopy of Certificate of Shyam Incorporation Narain
2. Ex.PW1/B True copy of Resolution dated Sharma 01.11.2018 (PW1)
3. Mark B Email dated 14.08.2020
4. Ex.PW1/C Form3Non Starter report / DLSA / Mediation dated 29.09.2020
5. Ex.PW1/D Ledger account from 01.04.2016 to 31.03.2018
6. Ex.PW1/E Form DVAT 33 dated 21.07.2017
7. Ex.PW1/F Original Tax Invoice dated 03.08.2017
8. Ex.PW1/G Office copy of letter dated 16.08.2017
9. Ex.PW1/H Duplicate/ office copy of tax invoice dated 30.08.2017 of Rs.30,556/ M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 8 of 43
10. Ex.PW1/I Office copy of letter dated 14.09.20109 sent to defendant by hand
11. Ex.PW1/J Office copy of reminder letter dated 25.11.2019 sent to the defendant
12. Ex.PW1/K Copy of Corrigendum dated 13.02.2020 to the legal notice dated 31.01.2020 along with postal receipts
13. Ex.PW1/L Certificate U/s 65 B of Evidence Act Documents relied upon by the defendant:
14. Ex.DW1/A & Whatsapp and email communications Nitin Ex.DW1/B between the counsels for the parties Singhal
15. Ex.DW1/D to Three bills/ invoices dated (DW1) Ex.DW1/F 09.06.2017 of Rs.1,30,352/; invoice dated 13.06.2017 of Rs.3,09,950/ and invoice dated 29.06.2017 amounting to Rs.2,17,440/
16. Ex.DW1/G Bill dated 13.06.2017
17. Ex.DW1/H Notification regarding CGST dated 01.07.2017 and the GSTIN numbers allocated later on
18. Ex.DW1/I GST Registration certificate of the defendant along with its annexures which was issued on 21.09.2017
19. Ex.DW1/J Statement of Account of the plaintiff maintained by the defendant firm (8) Now coming to the testimonies of the witnesses examined by the parties whose testimonies are put in a tabulated form as under:
S. Details of the Deposition
No. Witness
1 Shyam PW1 Shyam Narain Sharma is one of the Directors
Narain of the plaintiff company who in his examinationin
Sharma chief by way of affidavit Ex.PW1/A has
(PW1) corroborated what has been earlier stated in the
main plaint. He has placed his reliance upon the M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 9 of 43 following documents:
1. Photocopy of Certificate of Incorporation which is Mark A.
2. True copy of Resolution dated 01.11.2018 which is Ex.PW1/B.
3. Email dated 14.08.2020 which is Mark B.
4. Form3Non Starter report / DLSA / Mediation dated 29.09.2020 which is Ex.PW1/C.
5. Ledger account from 01.04.2016 to 31.03.2018 which are Ex.PW1/D (colly, 2 pages).
6. Form DVAT 33 dated 21.07.2017 which is Ex.PW1/E.
7. Original copy of Tax Invoice dated 03.08.2017 towards goods supplied to defendant which is Ex.PW1/F.
8. Office copy of letter dated 16.08.2017 which is Ex.PW1/G.
9. Duplicate/ office copy of tax invoice dated 30.08.2017 of Rs.30,556/ which is Ex.PW1/H.
10. Office copy of letter dated 14.09.20109 sent to defendant by hand which is Ex.PW1/I.
11. Office copy of reminder letter dated 25.11.2019 sent to the defendant which is Ex.PW1/J
12. Copy of Corrigendum dated 13.02.2020 to the legal notice dated 31.01.2020 along with postal receipts which are Ex.PW1/K (colly, 4 pages.
13. Certificate U/s 65 B of Evidence Act which is Ex.PW1/L In his cross examination by the Ld. Counsel for the defendant, the witness has deposed under under:
➢ That the information with respect to para 10 to 13 of the suit as mentioned in the verification clause of the plaint was received from his counsel.
➢ That the suit has not been verified with respect to para 14 to 16 of the plaint. ➢ That he has not signed each page of suit as mentioned in his statement of truth.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 10 of 43 ➢ That the present suit has not been filed as per the provisions of Commercial Courts Act 2015 and in his Statement of Truth mentioned about the annexures being true copies of the documents.
➢ That the list of document dated 22.02.2021, the columns has been left blank.
➢ That it is wrong that he has deliberately not furnished the proper verification, statement of truth and the details of the documents have been left blank as the suit is based on false documents and on concocted story. ➢ That the statement of account Ex.PW1/D has been generated by computer with Busy software for accounting by other Director of the company and has been produced by him on record.
➢ That the name of other Director who has taken out the statement from computer is Sh. Manoj Kumar Jain.
➢ That it is wrong that he has deliberately not cited Mr. Manoj Kumar Jain as a witness and that he has filed incorrect certificate U/s 65 B of Indian Evidence Act as the ledger statement Ex.PW1/D is fabricated.
➢ That he is not aware of the make and serial number of computer from which the account statement was got printed out and has voluntarily explained that he can produce the details thereof, if required. ➢ That he has no proof as to how the legible copy of Ex.PW1/E (page 16) was furnished to the defendant and his counsel.
➢ That it is wrong that the plaintiff is not a company registered under the provisions of Companies Act as he has not filed the original of Certificate of Incorporation. ➢ That the resolution Ex.PW1/B was passed on 01.11.2018.
➢ That Ex.PW1/B does not bear any date of its preparation.
➢ That he was present in the Board meeting held on 01.11.2018.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 11 of 43 ➢ It is wrong that the author of Ex.PW1/B Mr. Manoj Kumar Jain has deliberately not cited as a witness since he would not have supported the suit.
➢ That the copy of certificate U/s 65 B of Indian Evidence Act Ex.PW1/L was filed in the absence of defendant counsel and that the copy of the same has not been supplied to the defendant or its counsel till date. ➢ That Ex.PW1/F dated 03.08.2017 does not find a mention of GST number of the defendant firm.
➢ That document Ex.PW1/H bears the GST number of defendant firm.
➢ That GST provisions came into force from 1 st July 2017 and the GST numbers were allotted thereon.
➢ That all the goods were supplied to the defendant at Gurugram, Haryana only. ➢ That the invoices Ex.PW1/F and Ex.PW1/H are signed by the Marketing Executive namely Mr. Sanjay Sharma who is authorized to sign the invoices besides Directors.
➢ That there is no authorization letter in the name of Sh. Sanjay Sharma or the Directors to sign the invoices.
➢ That all the bills have been signed by Mr. Sanjay Sharma.
➢ That all the invoices are made in triplicate and are signed by the same person in triplicate and has voluntarily explained that Sanjay Sharma is Market Executive who is looking over the Sales Counter and is a authorized signatory.
➢ That the document Ex.PW1/G was delivered via courier.
➢ That Ex.PW1/G is not a fabricated document which was never delivered to the defendant. ➢ That he has not exhibited any courier receipts or its delivery report.
➢ That he cannot say whether he has ever seen the courier receipt of dispatching the letter Ex.PW1/G. M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 12 of 43 ➢ That the document Ex.PW1/I was also delivered by hand and also by email. ➢ That it is wrong that Ex.PW1/I is a fabricated document or that the same has not been delivered either by hand or by email. ➢ That he is not aware as to who has delivered the document Ex.PW1/I and to whom. ➢ That it is wrong that he has not exhibited any email because no such document was sent through email.
➢ That he does not have any personal knowledge about the matter and his deposition is based on the record maintained by his office.
➢ That the document Ex.PW1/J was either sent by courier or by post.
➢ That it is wrong that Ex.PW1/J is a fabricated document or that the same has not been delivered either by courier or by post. ➢ That no courier and postal receipt has been exhibited concerning the letter Ex.PW1/J. ➢ That the document Ex.PW1/K was sent by his counsel on his instructions.
➢ That complete address of defendant is not mentioned on the speed post receipt Ex.PW2/K (colly) and has voluntarily explained that only name of Surender Kumar and PIN CODE110017 is mentioned on the same.
➢ That no delivery report of the document Ex.PW1/K is exhibited by him and has voluntarily explained that he has submitted track/ delivery report of Speed Post on record.
➢ That it is wrong that he has never been authorized to file the present suit and to depose on the same.
➢ That he used to get order on telephone only and has voluntarily explained that he used to send quotation on email as well.
➢ That it is wrong that the orders were taken personally by the plaintiff at the ongoing project at Gurugram, Haryana or through telephone.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 13 of 43 ➢ That it is wrong that no quotation of the disputed invoices were ever sent by him on e mail.
➢ That the plaintiff deals in supply of motor and not in manufacturing of the same. ➢ That no bills of procurement of disputed goods from its manufacturer and delivery bills (bilti) and report of the transporter have been exhibited and has voluntarily explained that the material was delivered by local tempo / transport by the plaintiff. ➢ That it is wrong that the above documents have been deliberately not placed on record since the disputed goods were neither procured nor delivered to the defendant. ➢ That no bills of transporter have also been exhibited by him and has voluntarily explained that no bill or GR was given by the transporter at that time and no cash receipt has been issued by the transporter. ➢ That he has not placed on record any document to prove that the transporter was paid in cash with regard to the disputed goods.
➢ That it is wrong that he has deliberately not exhibited the forged and fabricated invoices.
2. Sh. K.K. Sh. K.K. Mehra (PW2) is the Proprietor of M/s.
Mehra (PW2) K.K. & Associates who in his examination in chief by way of affidavit has deposed on the following aspects:
1. That he knew S.N. Sharma the Director of the plaintiff firm and also knew M/s.
Surender Kumar contractor for the last about six years.
2. That he is engaged in the business of consultation and contract work for Fire Fighting Application in buildings, hospital etc. and used to execute fireghting works of M/s. Surender Kumar on labour charge basis.
3. That in February 2016 he introduced M/s. Surender Kumar Contractor to M/s. Hydrotech Marketing Pvt. Ltd. for their requirement of pumpsets for JNU Project, New Delhi.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 14 of 43
4. That he had executed/ done the installation and commissioning of Fire Pumpsets, Dewatering Sump Pumps and Pumpsets for Air Conditioning Plant with MCC Panel at IRCTC Site, Gurugram Haryana for M/s. Surender Kumar on labour charge basis.
5. That the material i.e. 6 Nos. Sump Pumps type C W1500; 2 Nos. Raw Water Lifting Pumpsets Type KPD20/16QF with 5.0 HP Motor; 2 Nos. Dom Water Lifting Pumpsets type CPHM32/20 with 7.5 HP Motor and MCC Panel were sold and supplied by M/s. Hydrotech Marketing Pvt. Ltd. New Delhi to M/s. Surender Kumar Contractor for their IRCTC Site, Plot No.3 Industrial Area, Sector44, Gurugram, Haryana.
6. That the said materials were duly delivered to M/s. Surender Kumar Contractor.
7. That being the Contractor at site of M/s. Surender Kumar contractor, he (witness) has executed the installation and commissioning of above material/ equipment/ pumps at above site and all pumpsets/ equipments/ supplied matter are in working condition. In his cross examination by the Ld. Counsel for the defendant, the witness has deposed under under:
➢ That he has signed the affidavit prepared by the counsel of the plaintiff.
➢ That he has been working with the defendant firm for the last 9 - 10 years and had worked at two sites.
➢ That he used to get payments from defendant firm via cash and has again stated that he has also received payments via cheques as well.
➢ That it is wrong that payments were never made to him in cash and he has received only cheque payments from defendant firm and has voluntarily explained that he has not received the final payment as his labour had left his office and he could not complete the fire fighting work.
➢ That it is wrong that he got done only plumbing work and has voluntarily explained that it was both plumbing and fire fighting M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 15 of 43 work.
➢ That he cannot specifically deny that he has received all his last payments from the defendant firm through cheques only. ➢ That it is wrong that he has only carried plumbing work at Gurugram site.
➢ That the ledger account of payments made to him through the defendant firm is now Ex.PW2/D1 and has voluntarily explained that he has received some cash payments in between the cheque payments mentioned in the above payments.
➢ That it is wrong that no cash payments were made to him during the period between 20.01.2017 to 08.03.2017 by the defendant firm.
➢ That he has not given any bill whatsoever after March 2017 to the defendant firm and has voluntarily explained that he has never given any bill after March 2017 to the defendant firm since due to shortage of labour, the work could not be executed. ➢ That he did not undertake any air conditioning related work.
➢ That it is wrong that the plaintiff does not deal in MCC Panel.
➢ That he does not have any MCC Panel related bill of plaintiff pertaining to any sale etc. and has voluntarily explained that is there is a bill of 3040 years old of plaintiff, he would not be having the same as of now. ➢ That he knew Mr. S. N. Sharma for the last about 40 years and M/s Hydrotech for the last about 30 years.
➢ That it is wrong that he does not have any MCC panel related bill of plaintiff since the plaintiff does not deal in MCC panel. ➢ That the plaintiff only deals in trading of MCC Panel and not into its manufacturing. ➢ That he is not aware the trading of MCC Panel with respect to which manufacturing company.
➢ That it is wrong that only because plaintiff does not deal in MCC panel, therefore he is M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 16 of 43 not able to either produce any MCC Panel bill or name any manufacturing company that plaintiff deals with.
➢ That he has not worked at all at Gurugram site after AprilMay 2017 and again stated that he can verify after seeing his bills, it could be 2018 as well but he is not sure if he can get the said bills or not.
➢ That it is wrong that he has not introduced the defendant firm with the plaintiff. ➢ That he has not installed any pump set for air conditioning plant with MCC panel at Gurugram site of the defendant firm. ➢ That he has not visited the site of the defendant at Gurugram after 2017 or 2018. ➢ That he is not aware as to whether plaintiff has supplied six numbers of sump pumps type C W1500 to the defendant firm and has voluntarily explained that he has installed two dewatering/ sump pumps and five numbers of fire fighting pumps.
➢ That it is wrong that fire fighting work was not done by him.
➢ That it is wrong that fire fighting work was done by S. S. Engineers and has voluntarily explained that he cannot say that after leaving the site by him, who had carried out the reaming work.
➢ That he is wrong that he has not carried out any fire fighting work at the Gurugram site of the defendant firm.
➢ That he is wrong that he does not have the bills related to fire fighting work done by him at the above said site.
➢ That he cannot say if he can produce the bills as the same are about 7 to 8 years old. ➢ That it is wrong that he is deliberately not producing the bills since he has not done fire fighting work at the above site.
Defendant's Evidence
3. Sh. Niten DW1 Sh. Nitin Singhal is one of the Director of the Singhal defendant firm. He has in his affidavit of evidence (DW1) Ex.DW1/1 corroborated what has been earlier M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 17 of 43 stated in the written statement. He has placed his reliance upon the following documents:
1. Whatsapp and email communications between the counsels for the parties which are Ex.DW1/A & Ex.DW1/B.
2. Three bills/ invoices dated 09.06.2017 of Rs.1,30,352/; invoice dated 13.06.2017 of Rs.3,09,950/ and invoice dated 29.06.2017 amounting to Rs.2,17,440/ which are Ex.DW1/D, Ex.DW1/E & Ex.DW1/F (according to the defendant the said bills are forged and fabricated).
3. Bill dated 13.06.2017 which is Ex.DW1/G.
4. Copy of notification regarding CGST dated 01.07.2017 and the GSTIN numbers allocated later on which is Ex.DW1/H.
5. GST Registration certificate of the defendant along with its annexures which was issued on 21.09.2017 which is Ex.DW1/I.
6. Statement of Account of the plaintiff maintained by the defendant firm which is Ex.DW1/J. In his cross examination by the Ld. Counsel of the defendant, the witness has deposed on the following aspects:
➢ That he is a Partner in the firm M/s.
Surender Kumar.
➢ That their first dealing with the plaintiff could be in the year 201415.
➢ That he only received the summons of the present suit which he gave to his counsel who then asked or found or got the documents from the plaintiff's counsel and as per his knowledge, it was asked through whatsapp or some other mode.
➢ That usually on big size project there will be a Storekeeper or any other person who would be present at the site, who receives the goods.
➢ That one Rajbir and Arun Kumar were present at Gurugram site.
➢ That the purchase orders were given generally either through emails or through phone and might be whatsapp also but no M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 18 of 43 orders were placed to the plaintiff through whatsapp.
➢ That he has not filed any police complaint against the plaintiff for forgery etc. ➢ That he did not maintain any register of any goods supplied to him.
➢ When specifically asked as to whether he recognize the signatures of Rajbir and Arun Kumar Mahto, Ld. Counsel for the defendant has objected to this question claiming that it is not relevant and DW1 is not an expert witness and thereafter the witness DW1 answered that since he is not a signature expert, as such he cannot comment anything on this (Note: This response was only after prompting by Ld. Counsel for the defendant).
➢ That the goods mentioned in the bill dated 13.06.2017 which is Ex.DW1/G were delivered and entry of the same was made in the ledger account of the defendant.
➢ That the project of Gurugram namely IRCTC started either in the year 2014 or 2015. ➢ That there were no dealings with the plaintiff after the bills dated 09.06.2017 and 29.06.2017 which are Ex.DW1/D & Ex.DW1/F because the said bills are incorrect but some minor dealings took place with the plaintiff after Ex.DW1/G. ➢ That the entries made in the Ledger Account Ex.PW1/D are incorrect.
➢ That there are no purchase entries dated 09.06.2017 and 29.06.2017 with the plaintiff as per the record.
➢ That he did not receive the legal notice dated 13.02.2020 Ex.PW1/K sent on behalf of the plaintiff.
➢ That the address A43, Shivalik, Malviya Nagar, New Delhi is his residence cum office address.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 19 of 43 ➢ That he had not received Ex.PW1/J (reminder letter dated 25.11.2019) regarding outstanding payment of Rs.3,05,377/, though the address mentioned on the same is correct.
➢ That the email ID [email protected] belongs to him. ➢ That he does not remember whether he had received any email on 14.09.2019 from the email ID [email protected]. ➢ That it is wrong that he has deliberately refused the service of any legal notice sent by the plaintiff and any reminder thereof.
FINDINGS AND OBSERVATIONS:
(9) I have heard the arguments advanced before me by the Ld. Counsels for the parties and considered the written memorandum of arguments filed by them. My findings on the various issues are as under:
Issue No.3: Whether this Court has no territorial jurisdiction to try the present suit? (OPD) (10) Onus of proving this issue was upon the defendant who in its written statement has raised a preliminary objection that this Court has no territorial jurisdiction to try the present suit since no transaction took place in Delhi. The case of the defendant is all the transactions took place at Gurugram, Haryana; all orders were placed for and from Gurugram, Haryana and therefore, the Gurugram Courts or at the best the Court having territorial jurisdiction where the defendant firm is situated i.e. South District, Delhi are only having territorial jurisdiction to M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 20 of 43 try the present suit.
(11) In this regard, I may observe that the office of plaintiff M/s. Hydrotech Marketing Pvt. Ltd. is situated at LG144, Anarkali Bazar, DDA Shopping Complex, Jhandewalan Extension, New Delhi110055 which falls within the jurisdiction of this Court. Further, as per the various invoices placed on record including the invoice dated 13.06.2017 which is Ex.DW1/G (on which the defendant is placing its reliance) shows that the invoices are subject to 'Delhi' Jurisdiction only.
Though the defendant has denied that the goods were sent by the plaintiff from its office situated at Jhandewalan, Delhi but they have not specified the exact place from where the goods were dispatched to them. Once the plaintiff has specifically claimed in his plaint that the materials were sent from the office at Jahndewalan, Delhi it was necessary for the defendant to disprove the same, which the defendant has failed to do. Even otherwise, no question in this regard has been put to the witness of the plaintiff i.e. Shyam Narain Sharma (PW1) by the Ld. Counsel for the defendant.
(12) This being the background, I hereby hold that the defendant has not been able to discharge the onus upon it. Accordingly, I hold that this Court has the jurisdiction to try the present suit.
(13) Issue is accordingly decided in favour of the plaintiff and against the defendant.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 21 of 43 Issue No.1: Whether the plaintiff is entitled for the recovery of the amount of Rs.3,05,377/ as claimed in the plaint? (OPP) Issue No.2: Whether the plaintiff has no cause of action to file the suit against the defendant? (OPD) Issue No.4: Whether the invoices dated 09.06.2017, 13.06.2017 and 29.06.2017 filed along with the plaint are forged and fabricated? (OPD) Issue No.5: Whether the plaintiff is entitled for the pendent elite and future interest, if so at what rate and for what period? (OPP) (14) All the above issues are clubbed together for the sake of convenience involving common discussion. Onus of proving the Issues No.2 and 4 was upon the defendant and that of Issues No.1 and 5 upon the plaintiff.
(15) The case of the plaintiff M/s. Hydrotech Marketing Pvt. Ltd. is that it had supplied the goods i.e. water pumps and other accessories to the defendant M/s. Surender Kumar for the IRCTC Project at Gurugram since 15.09.2016 and lastly the goods were sent on 30.08.2017. According to the plaintiff, as per the Statement of Account maintained by the plaintiff a sum of Rs.3,05,377/ is due upon the defendant which the defendant is not paying despite repeated requests and reminders. (16) On the other hand, the case of the defendant M/s. Surender Kumar is that there is no cause of action against the defendant since the defendant has never received the goods M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 22 of 43 mentioned in the bills dated 09.06.2017 and 29.06.2017. According to the defendant they have made the payments of the invoices raised by the plaintiff and in fact made payments more than the invoices. It has been alleged that the Invoice dated 09.06.2017 of Rs.1,30,532/; dated 13.06.2017 of Rs.3,09,950/ and dated 29.06.2017 of Rs.2,17,400/ are forged and fabricated. (17) In order to prove its case the plaintiff has examined two witnesses i.e. its Director Sh. Shyam Narain Sharma as PW1 and one K.K. Mehra as PW2 whereas on the other hand, the defendant has examined its Partner namely Nitin Singhal as DW1 as its sole witness.
(18) I have considered the rival contentions and the testimonies of the witnesses examined by the parties. At the very Outset, I may observe that the plaintiff has filed the present suit against the defendant for recovery of Rs.3,05,377/ along with pendentelite and future interest on the ground that they had supplied goods/ materials to the defendant who failed to make the payment of the same. Here, I may note that the provisions of Section 2 (1) (c) (vi) of Commercial Courts Act, 2015 are very clear which reads as under:
(c) "commercial dispute" means a dispute arising out of
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 23 of 43
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy
agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment
agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits;
(xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;
(xx) insurance and reinsurance; (xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 24 of 43 may be notified by the Central Government.
(19) The provisions of Section 2 (1) (c) of Commercial Courts Act as above are very much clear. Sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee may be oral or written. Therefore, the facts which alleged in the plaint comes under the commercial dispute.
(20) Secondly, with regard to the Pecuniary Jurisdiction to adjudicate the matter which is in dispute, reliance is placed upon the provisions of Section 3 of Commercial Courts Act, 2015 which provides that:
Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 25 of 43 not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.] (21) Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs.3,00,000/. In the present case, the claim amount which shown in the plaint is of Rs.3,05,377/ (including interest) and hence, this court has the pecuniary jurisdiction to adjudicate upon the issues in dispute. (22) Thirdly, a perusal of the record shows that before filing the present suit, the preinstitution mediation proceedings were initiated by the plaintiff and the NonStarter Report dated 29.09.2020 shows that notice was issued to the defendant for 20.09.2020. As per the Non Starter Report, the notice was delivered through email pursuant to which the defendant appeared through Video Conferencing and refused to participate in the mediation process as a result of which the Non Starter Report was issued.
(23) Fourthly, in so far as the aspect of Limitation is concerned, it is evident from the record that the last invoice of M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 26 of 43 the plaintiff is of August 2017 and the plaintiff filed an application before the DLSA for PreInstitution Mediation on 08.09.2020. Here, I may note that the Hon'ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020 extended the period of limitation from 15.03.2020 till 28.02.2022. Therefore, the present suit having been filed on 05.01.2021 is within the Moratorium period of limitation.
(24) Fifthly, the witness of the plaintiff namely K.K. Mehra (PW2) has not supported the version of the plaintiff. Though initially in his examination in chief by way of affidavit, K.K. Mehra (PW2) has admitted that he had introduced the plaintiff to the defendant and also affirmed in para 7 of his affidavit of evidence that 6 No. Sump Pumps type C W1500; 2 No. Raw Water Lifting Pumpsets Type KPD20/16QF with 5.0 HP Motor; 2 No. Dom Water Lifting Pumpsets type CPHM32/20 with 7.5 HP Motor and MCC Panel were supplied by the plaintiff to the defendant, but in his crossexamination he has turned hostile on this aspect and has denied that any supply was made in his presence. When a specific question was put to the witness K.K. Mehra (PW2) in his crossexamination, he has specifically deposed that:
"..... I am not aware as to whether plaintiff has supplied six numbers of sump pumps type C W 1500 to the defendant firm...."
(25) This being so, the testimony of K.K. Mehra (PW2) does not confirm the case putforth by the plaintiff.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 27 of 43 (26) Sixthly, I also note that though it is claimed by the plaintiff that they had dispatched the material to the defendant i.e. 6 Nos. Sump Pumps type C W1500; 2 Nos. Raw Water Lifting Pumpsets Type KPD20/16QF with 5.0 HP Motor; 2 Nos. Dom Water Lifting Pumpsets type CPHM32/20 with 7.5 HP Motor and MCC Panel etc. but no document relating to dispatch and supply of the same in the form of Consignment Note/ Carrier Receipts/ Biltis have been placed on record. (27) Seventhly, now coming to the various invoices filed by the plaintiff on the basis of which it is seeking recovery from the defendant. I may note that the defendant has admitted only one invoice dated 13.06.2017 and has disputed the other invoices claiming them to be forged. This being the background, it has become necessary to singularly deal with all the invoices placed on record by the plaintiff.
(28) For the sake of convenience and in order to avoid any confusions, the various invoices under consideration are taken up individually for discussion as under:
Invoice dated 09.06.2017 for a sum of Rs.1,30,532/ bearing No. RI7105201718 and Invoice dated 29.06.2017 for a sum of Rs.2,17,440/ bearing No. RI7145201718:
(29) At the very Outset I may observe that the present suit had been filed by the plaintiff seeking recovery of Rs.3,05,377/ from the defendant and in respect of its claim, the plaintiff company has relied upon the photocopies of Invoice dated 09.06.2017 for a sum of Rs.1,30,532/ bearing No. RI7105 M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 28 of 43 201718 and Invoice dated 29.06.2017 for a sum of Rs.2,17,440/ bearing No. RI7145201718, which are laidout as under:
Invoice dated 09.06.2017 for a sum of Rs.1,30,532/ bearing No. RI7105201718 M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 29 of 43 Invoice dated 29.06.2017 for a sum of Rs.2,17,440/ bearing No. RI7145201718:
(30) Thereafter when the Replication was filed, the plaintiff has filed original Invoices dated 09.06.2017 and 29.06.2017 wherein the words 'Triplicate Copy' have been written. Here, I may note that the said invoices were filed without seeking any M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 30 of 43 permission from the Ld. Predecessor of this Court for bringing the same on record nor any application in this regard was filed.
The said Invoices are portrayed as under:
Invoice dated 09.06.2017 for a sum of Rs.1,30,532/ bearing No. RI7105201718 M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 31 of 43 Invoice dated 29.06.2017 for a sum of Rs.2,17,440/ bearing No. RI7145201718:
(31) After going through both the above invoices, my observations are as under:
➢ That on the face of it, there is a difference in the photocopies and originals of the invoices and do not appear to have been created at the same time. In fact, M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 32 of 43 no explanation is forthcoming for the difference as apparent to the naked eye. The photocopies of the invoices are totally different from their originals and even the signatures of the Authorized Signatory are different in as much as the signatures are not matching. ➢ That the invoices, as above, relied upon by the plaintiff have neither been exhibited nor proved. ➢ That both the invoices have not been relied upon by the witness of the plaintiff namely S.N. Sharma (PW1) and therefore, there was no occasion for the defendant to have confronted the witness of the plaintiff with these invoices.
➢ That the witness of the defendant namely Nitin Singhal (DW1) had exhibited the photocopy of above invoices (filed by the plaintiff along with the plaint) as Ex.DW1/D and Ex.DW1/F and specifically asserted that the same are forged documents. In this regard, I may observe that the plaintiff did not examine the executant of the said invoices nor any forensic expert has been examined to prove their genuineness or authenticity. This became necessary for the plaintiff in view of the specific assertion by the defendant that the invoices are forged. Hence, it was not only necessary for the plaintiff to prove the said invoices but also to prove that the said invoices were genuine documents, which the plaintiff miserably failed to do. An adverse inference is drawn against the plaintiff.
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 33 of 43 ➢ That the defendant having disputed the said invoices, it was necessary for the plaintiff to have explained the aforesaid discrepancies. Though in his cross examination the witness of the defendant namely Nitin Singhal (DW1) admitted that his Storekeeper namely Rajbir and Arun Kumar Mahto used to receive the goods but he did not comment whether he could recognize the signatures of Arun Kumar Mahto. In order to defeat the case of the defendant, it was necessary for the plaintiff to have examined these persons namely Rajbir or Arun Kumar Mahto who are alleged to have received the materials/ goods mentioned in the above invoices, which he did not do. ➢ That the plaintiff is not entitled to the recovery of any amount from the defendant in respect of the above Invoice dated 09.06.2017.
Invoice dated 13.06.2017 for a sum of Rs.3,09,950/ bearing No. RI7118201718:
(32) Coming next to the Invoice dated 13.06.2017 for a sum of Rs.3,09,950/ bearing No. RI7118201718 which has been relied upon by the plaintiff. I may note that the defendant has not disputed the said invoice and claimed that they had made the payment in respect of the said invoice. However, it has become necessary for me to bring on record that three copies of the same invoice have been placed on record, first which is a photocopy filed by the plaintiff along with the plaint, second by the M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 34 of 43 defendant along with its Written Statement and third by the plaintiff along with the Replication. Incidentally on the first invoice placed on record by the plaintiff which is a photocopy, the signatures of the Authorized Signatory for the plaintiff company are different to the signatures of the Authorized Signatory present in the second and third copy. The invoice which has been filed by the defendant along with its written statement is the Duplicate Copy which has been duly exhibited by the defendant as Ex.DW1/G. (33) The first Invoice, which is the photocopy, filed by the plaintiff along with the plaint is setout as under:
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 35 of 43 (34) The second invoice (which is the Duplicate Copy) which has been filed by the defendant along with its written statement, is portrayed as under:
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 36 of 43 (35) Further, the third copy of the invoice, filed by the plaintiff along with its Replication is setout as under:
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 37 of 43 (36) My observations in respect of the above invoice are as under:
➢ That the defendant has admitted the above invoice and also admitted having made the payment in respect of the same which is duly reflected in his Ledger Account which is Ex.DW1/J. ➢ That even the Ledger Account of the plaintiff which is Ex.PW1/D reflects the transaction in question i.e. payment to the tune of Rs.4,00,000/ from the defendant on 30.06.2017.
➢ That the plaintiff is entitled to the recovery of Rs.3,09,950/ from the defendant (Note: As per evidence on record, the said amount has already been received by them).
Invoice dated 03.08.2017 for a sum of Rs.1,275/ bearing No. 95 and Invoice dated 30.08.2017 for a sum of Rs.30,556/ bearing No. 182:
(37) The plaintiff has also filed two invoices along with his plaint i.e. Invoice dated 03.08.2017 for a sum of Rs.1,275/ bearing No. 95 and Invoice dated 30.08.2017 for a sum of Rs.30,556/ bearing No. 182. Both the said invoices are portrayed as under:
M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 38 of 43 Invoice dated 03.08.2017 for a sum of Rs.1,275/ bearing No. 95 M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 39 of 43 Invoice dated 30.08.2017 for a sum of Rs.30,556/ bearing No. 182:
(38) After going through both the above invoices and the evidence on record, my observations are as under:
➢ That both the above original invoices have been placed on record along with the plaint and in his evidence the M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 40 of 43 witness of plaintiff namely S.N. Sharma (PW1) has duly exhibited the same vide Ex.PW1/F and Ex.PW1/H respectively.
➢ That there is a stamp 'CLEAR' visible on the invoice dated 30.08.2017 which is Ex.PW1/H and there is no clarity whether it is for the goods received or for the payment made. Both the plaintiff and the defendant have not raised this issue nor they have offered any explanation for the same.
➢ That the said invoices have not been disputed, rather, the defendant has admitted the same and the entries relating to the said invoices are mentioned in the Ledger Account of the defendant which is Ex.DW1/J. ➢ That the short dispute which remains is whether the payment of the said invoices have been made or nor. On the one hand, the plaintiff claims that no payment was made in respect of the above invoices whereas on the other hand, the case of the defendant is that they have made the payments.
➢ That except for the oral testimony of the witness of the defendant namely Nitin Singhal (DW1), which is not supported by any documentary evidence, there is nothing on record to show that the payment in respect of the above invoices have been made. ➢ That there is no document to show that the payment has been made either by cash or by cheque or online etc. M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 41 of 43 ➢ That the defendant has not examined any witness who had made the payments to the plaintiff and only a vague and non specific averment has been made that the payments in respect of the above invoices have been made to the plaintiff without any supporting document.
➢ That there being no document showing the payments to the plaintiff in respect of the above invoices, I hold that the plaintiff is entitled to the recovery of Rs.31,831/ from the defendant qua the above two invoices.
(39) Lastly, in so far as the Ledger Account of the plaintiff which is Ex.PW1/D is concerned, I may observe that it is a self created document of the plaintiff itself. Further, the plaintiff having failed to prove the transaction in respect of Invoice dated 09.06.2017 for a sum of Rs.1,30,532/ and Invoice dated 29.06.2017 for a sum of Rs.2,17,400/, the Ledger Account cannot be read into evidence.
(40) In the light of my above discussion, the issues No. 1, 2, 4 and 5 are accordingly disposed off.
CONCLUSION & RELIEF:
(41) In view of my findings on the various issues, I hereby hold that the plaintiff is entitled to following reliefs:
A) That recovery for a sum of Rs.3,09,950/ in respect of Invoice dated 13.06.2017 (Note: Payment has already been made by the defendant and admitted by the M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 42 of 43 plaintiff).
B) That recovery of a sum of Rs.31,831/ from the defendant in respect of Invoice dated 03.08.2017 and Invoice date 30.08.2017.
C) That in so far as the interest aspect is concerned, the plaintiff is claiming an interest @ 18% per annum, which in my considered view is excessive. I hold that the interest of justice would be served if the plaintiff is held entitled to the recovery of a sum of Rs.31,831/ along with interest @ 6% per annum from the date of filing of the suit till its realization. (42) Suit of the plaintiff is accordingly Decreed. Parties to bear their own costs. Decree Sheet be prepared accordingly. (43) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 15.09.2023 District Judge (Commercial Court)02, Central, Tis Hazari Courts, Delhi M/s. Hydrotech Marketing Pvt. Ltd. Vs Surender Kumar CS (Comm.) No. 42/2021 Judgment dated 15.09.2023 Page No. 43 of 43