Delhi District Court
M/S. Mithas Exclusive Catering ... vs . M/S Angle Infrastructure Pvt. Ltd. & ... on 28 September, 2022
M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE02,
SOUTH, SAKET COURTS COMPLEX, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar.
CS DJ No. 8429/2016
FILING No. 26811/16
CNR No. DLST010021972016
In the matter of :
M/s Mithas Exclusive Catering Services
73, Defence Colony, Flay Over Market
New Delhi110024
Through its Directors
Sh. Deepak Kumar Gupta and
Sh. Ashish Gupta, & Anil Syal(ar)
.........Plaintiff
Versus
1. M/s Angle Infrastructure Pvt. Ltd.
Ambawata, 1, Opp. Qutub Minar Bus Stand
Mehrauli, New Delhi110030
Through its Director
Sh. Vinod Ambawata ji.
2. Sh. Vinod Ambawata ji
Director M/s Angle Infrastructure Pvt. Ltd.
Ambawata, 1, Opp. Qutub Minar
Bus Stand, Mehrauli
New Delhi110030
........Defendants
(vide order dated 17.10.2019 defendant no. 2 was
directed to be deleted from the array of parties.
However, his name still appears in the memo of
parties).
CS DJ No. 8429/2016
Page 1 of 25
Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022
M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
Date of Institution : 11.07.2016
Date of reserving the judgment : 26.09.2022
Date of pronouncement : 28.09.2022
Decision : Dismissed
SUIT UNDER ORDER XXXVII CPC FOR THE RECOVERY
OF RS.6,87,000/ (RUPEES SIX LACS EIGHTY SEVEN
THOUSAND ONLY) ALONG WITH PENDENTE LITE
INTEREST AND FUTURE INTEREST
JUDGMENT
1. Vide this judgment, I shall disposes of the Civil Suit filed by the plaintiff for recovery of Rs.6,87,000/. This is a suit originally filed by the plaintiff under Order XXXVII, the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'). The brief facts of the case, as per plaint, are as under:
1.1. The plaintiff is engaged in the catering services in the name and style of M/s. Mithaas Exclusive Catering Services. The defendant no.2 Shri Vinod Ambawat Ji had placed an order for providing catering services including food materials at the rate of Rs.1000/ per head for 500 plates at Pavilion Farm on 01.12.2015.CS DJ No. 8429/2016 Page 2 of 25
Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
1.2. Subsequently the defendant no.2 increased 500 plates. Accordingly the plaintiff had provided the catering services including food material for 1000 plates. After the program was over, the plaintiff raised bill for 1000 plates for Rs.10,00,000/ plus Rs.1,00,000/ towards CST/VAT and Rs.87,000 towards service tax, the total amount being Rs.11,87,000 vide bill number 436 dated 05.12.2015 towards the defendants.
1.3. The defendant no. 2 paid Rs.5,00,000/ through RTGS to the plaintiff. The plaintiff had paid Rs.1,87,000/ towards GST and service tax. The defendant no.2 in discharge of part liability had issued the cheque number 000065 dated 08.12.2015 for Rs.5,00,000/ drawn on HDFC Bank Ltd, Jasola, New Delhi in favour of the plaintiff. The defendants assured the plaintiff to pay the remaining amount later on.
1.4. The plaintiff presented the cheque for encashment to his banker. The cheque in question was sent for collection to the banker of the defendants, but the same was returned unpaid with remarks "payment stopped by drawer". The banker of the plaintiff CS DJ No. 8429/2016 Page 3 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
returned the cheque with its memo of dishonourd dated 14.12.2015.
1.5. The plaintiff contacted the defendant no.2 and demanded the cheque amount as well as the remaining amount. The defendant no. 2 had sought time. During this period, the validity to file a case under section 138 of the NI Act had lapsed. The plaintiff issued a legal notice dated 03.05.2016 and demanded the balance amount from the defendants. However, the defendants did not reply to the said legal notice and also failed to make the payment. Hence, the present suit has been filed with the following prayer:
"pass a decree of Rs.6,87,000/ with the interest @ 24% per annum pendentalite, legal expenses and future interest in favour of the plaintiff and against the defendant; "pass an order against the defendant for attachment of his movable and immovable assets for the recovery of amount;
"the cost of the suit be also granted in favour of the plaintiff and against the defendants."
2. The present suit was originally filed under order XXXVII, the CPC on 11.07.2016. Summons for appearance in prescribed format were issued to the defendants. Defendant no.1 appeared and filed address for CS DJ No. 8429/2016 Page 4 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
appearance. Summons for judgment to the defendant were issued. Defendant no. 1 filed an application seeking leave to defend the suit. The plaintiff filed reply to the application. The application seeking leave to defend was allowed by the court vide order dated 16.10.2018. Time was granted to the defendant to file WS.
3. The defendant no.2 was directed to be deleted from the array of parties vide order dated 17.10.2019.
4. The defendant no.1 had filed its written statement. It contested the suit on the following grounds:
4.1. The plaintiff does not have any cause of action.
The plaintiff has not approached the court with clean hands. It has deliberately misrepresented the relevant facts and concealed the material facts. The suit is not maintainable as the defendant no. 1 has already paid the due amount. The plaintiff is not entitled to recover any amount from the defendant and therefore, the suit is liable to be dismissed.
4.2. The defendant had already paid the entire outstanding amount of Rs.5,00,000/ and the plaintiff is not entitled for any further amount from the defendant. The defendant admitted that it had placed the requirement of 500 plates of buffet dinner at CS DJ No. 8429/2016 Page 5 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
Rs.1000/ per plate all inclusive of taxes and duties and a postdated cheque of Rs.5,00,000/ was issued in favour of the plaintiff. On the day of the event, the plaintiff started blackmailing the defendant by raising the per plate price to Rs.1500/ so that he might be in a position to make good profit out of the same. 4.3. The defendant showed his reluctance towards the same and requested the plaintiff to let the function finish and thereafter, it would settle the accounts with the plaintiff. On 08.12.2015, the defendant requested the plaintiff to hold on the cheque for a day or two as the defendant was not aware of the availability of the funds in the account.
4.4. On 10.12.2015, the plaintiff presented the cheque for encashment which was dishonoured. The plaintiff approached the defendant and asked for full and final payment of Rs.5,00,000/ which was paid through RTGS on 11.12.2015. The plaintiff, instead of adjusting the accounts and returning the cheque to the defendant, wrongfully presented the cheque and made a false claim. Hence, it is prayed that the suit may be dismissed.
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5. The plaintiff filed the replication to the written statement of the defendant in which it denied the averments made by the defendant and reiterated the facts stated in the plaint.
6. On the basis of the pleadings of the parties, vide order dated 17.10.2019, the following issues were framed.
1. Whether the plaintiff is entitled to a decree of Rs. 6,87,000/ together with interest @ 24% per annum ever since it became due till its actual realization? OPP
2. Whether no cause of action accrued to the plaintiff to file the present suit?OPD
3. Whether the plaintiff is guilty of concealment of facts and otherwise estopped from filing the present suit? OPD
4. Relief.
7. The plaintiff was asked to lead the evidence. Sh. Anil Sayal, AR of the plaintiff tendered his evidence by way of affidavit Ex.PW1/A. He reiterated the facts mentioned in the plaint. He has relied upon the following documents :
a)Copy of the invoice dated 05.12.2015 is de exhibited and now marked as Mark PW1/A.
b) Sales Tax details is Ex.PW1/B (objected to the mode of proof) CS DJ No. 8429/2016 Page 7 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
c) Service Tax details is Ex.PW1/B1 (objected to the mode of proof)
d) Sales Tax (VAT) return is Ex.PW1/B2.
(subject to production of original document) (objected to mode of proof).
e)Service Tax return is Ex. PW1/B3. (subject to production of original document) (objected to mode of proof)
f) Copy of ledger account of the plaintiff is Ex.PW1/B4. (objected to mode of proof)
g)Certificate U/s. 65B of Indian Evidence Act is Ex.PW1/B5. (objected to the contents)
h)Attested copy of the bank statement of the plaintiff is Ex.PW1/C.
i) Original cheque in question is Ex. PW1/D.
j) Cheque returning memo dated 14.12.2015 is Ex.PW1/E.
k)Legal notice dated 03.05.2016 is Ex.PW1/F. (objected to the contents, mode of proof and mode of service).
l) Tracking report is Ex.PW1/G. (objected to the mode of proof and mode of service) CS DJ No. 8429/2016 Page 8 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
8. The witness was duly cross examined by Ld. Counsel for the defendant. The plaintiff did not examine any other witness. Therefore, PE was closed at his statement.
9. The defendant did not lead any evidence. Therefore the matter was fixed for final arguments.
10. Ld. Counsel for the plaintiff would argue that the plaintiff has proved its case against the defendant. The plaintiff has proved through the invoice and the VAT return that it had provided catering for a total 1000 persons as per the demand of the defendant. The plaintiff has also proved that the defendant had issued the cheque in question to discharge its liability and that it had made only part payment through RTGS. The cheque was dishonoured on presentation. The defendant did not make the payment despite service of legal notice. Hence, it is prayed that the suit may be decreed.
11. Ld. Counsel for the defendant, on the other hand, would argue that the plaintiff has failed to prove its case against the defendant. The document Ex.PW1/X1 (photocopy of which is Ex.PW1/A) is not proved as per law against the defendant. It is a self serving document. It does not bear any acknowledgement or receiving by the CS DJ No. 8429/2016 Page 9 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
defendant. Similarly the VAT and Service Tax documents i.e. Ex.PW1/B2 and Ex.PW1/B3 are also not proved as per law. They are the self serving documents of the plaintiff. There is no acknowledgement or receiving on the invoice by the defendant which shows that the defendant had not put the Order for the catering for 1000 persons and that it had made a demand of catering for 500 persons only. The plaintiff does not have any cause of action. The plaintiff has not approached the court with clean hands. It has deliberately misrepresented the relevant facts and concealed the material facts. The defendant had already paid the entire outstanding amount of Rs.5,00,000/ and the plaintiff is not entitled for any further amount from the defendant. It is argued that the defendant had placed the requirement of 500 plates of buffet dinner @Rs.1000/ per plate all inclusive of taxes and duties. One post dated cheque of Rs.5,00,000/ was issued in favour of the plaintiff. The plaintiff had presented the cheque for encashment and it was dishonoured. The plaintiff approached the defendant and asked for full and final payment of Rs.5,00,000/ which was paid through RTGS on 11.12.2015. The plaintiff, instead of adjusting the accounts and returning the cheque, wrongfully presented CS DJ No. 8429/2016 Page 10 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
the cheque and made a false claim. Hence, it is prayed that the suit may be dismissed.
12. I have heard the rival submissions and perused the material on record. My issuewise findings are as under:
13. Issue no.1, 2 and 3 The three issues are taken jointly as they require common discussion. The issues read as under:
"1. Whether the plaintiff is entitled to a decree of Rs. 6,87,000/ together with interest @ 24% per annum ever since it became due till its actual realization? OPP
2. Whether no cause of action accrued to the plaintiff to file the present suit?OPD
3. Whether the plaintiff is guilty of concealment of facts and otherwise estopped from filing the present suit? OPD"
14. In the present case, the claim of the plaintiff as mentioned in the plaint is that the defendant had placed an order to provide catering services including the food for 500 plates on 01.12.2015 which was subsequently increased to 1000 plates. It is also claimed of the plaintiff that after the program was over, the plaintiff had raised bill for 1000 plates i.e. for Rs.10,00,000/ plus Rs.1,87,000/ towards service tax. An invoice was prepared which was sent to the defendant. However, the defendant refused to receive the invoice. However, the CS DJ No. 8429/2016 Page 11 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
defendant made the payment of Rs.5,00,000/ through RTGS and issue cheque for Rs.5,00,000/. The said cheque was presented for encashment, however, it was dishonourned with remarks "payment stopped by drawer". The plaintiff contacted the defendant and demanded the cheque amount and balance amount. Time was sought by the defendant. However, the payment was not made by the defendant. The plaintiff had also issued a legal notice to the defendant.
15. A cause of action is essential to a civil suit since without a cause of action, a civil suit can not arise. Hon'ble Supreme Court of India in A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem, AIR 1989 SC 1239 has defined the cause of action in a civil suit. It has held as under:
"A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a fight to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the fight sued on but includes all the material facts on which it is CS DJ No. 8429/2016 Page 12 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a fight to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
16. In the present case, even though the defendant had not led any evidence, perusal of the record would show that the plaintiff has failed to show any cause of action in its favour.
17. In the affidavit of evidence of PW1 which is Ex.PW1/Y, the case similar to the case mentioned in the plaint has been presented by the plaintiff. Even in the legal notice Ex.PW1/F similar facts have been mentioned by the plaintiff. Thus, the case of the plaintiff since beginning is that the defendant had made part payment through RTGS and issued a cheque of Rs. 5,00,000/ as part payment which was dishonoured. The defendant did not make the payment of the cheque amount despite being informed by the plaintiff. However, perusal of the record would show that the cheque in question Ex.PW1/D is dated 08.12.2015. The program in question had taken place on 01.12.2015. In the entire plaint, affidavit of evidence or CS DJ No. 8429/2016 Page 13 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
notice, the plaintiff has not provided any date as to when the cheque was handed over by the defendant. As per the pleadings and affidavit and notice, the cheque was handed over after the completion of the program. However, the PW1, in his crossexamination, has stated that he did not remember when the cheque in question was handed over to him. The defendant is a business enterprises. It must have maintained records as to when the particular cheque or cash or other amount is received by it from its clients. No such document has been produced by the plaintiff to show as to when the said cheque was handed over to the plaintiff by the defendant. The plaintiff was in possession of the best evidence in this regard which is not produced by it in the Court.
18. Be that as it may, the PW1 has admitted in his crossexamination that the cheque was handed over to him prior to 08.12.2015. In the entire plaint, affidavit of evidence and the legal notice the plaintiff has not mentioned that it had presented the cheque twice. However, perusal of the record would show that in the statement of the account of the bank of the plaintiff which is Ex.PW1/C, the cheque in question was presented by the plaintiff for the first time on 10.12.2015. However, the CS DJ No. 8429/2016 Page 14 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
cheque was dishonoured as mentioned in the statement of account. Thereafter, on 11.12.2015, the amount of Rs.5,00,000/ was transferred by the defendant in the account of plaintiff through RTGS. Thereafter, the plaintiff again presented the cheque for encashment on 14.12.2015 which was again dishonoured. The plaintiff did not mention regarding the presentation of the cheque on 10.12.2015 in the pleadings and in affidavit. By pleadings and the affidavit, the plaintiff tried to create a case before the Court that the cheque was presented only once and that it was presented after part payment was received through RTGS. However, it is on record that the plaintiff had presented the cheque on 10.12.2015 and it was dishonoured. Thereafter, the payment of Rs.5,00,000/ was made by the defendant through RTGS on 11.12.2015. There is no explanation as to why the plaintiff did not disclose the factum of presentation of the cheque in question twice i.e. before the receiving of the amount through RTGS and on second time after receiving the amount through RTGS. It appears that the plaintiff tried to show to the Court that the payment of Rs.5,00,000/ was made through RTGS and cheque of Rs.5,00,000/ was issued as part payment. However, the material on record CS DJ No. 8429/2016 Page 15 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
would show on the preponderance of the probabilities that the cheque was dishonoured first and thereafter, RTGS of Rs.5,00,000/ was sent by the defendant to the plaintiff. There can be only one logical explanation to the said fact i.e. the defendant had transferred Rs. 5,00,000/ through RTGS once it was informed that the cheque in question was dishonoured and that the payment through RTGS was sent in lieu of the cheque amount. There is sufficient material on record, as discussed hereinafter, to show that this is the only plausible explanation.
19. Ld. counsel for the plaintiff has argued that it was mentioned in the statement of account filed by the plaintiff that the cheque was presented twice and therefore, there was no concealment of the fact by the plaintiff. Ld. Counsel has relied upon the judgment of the Hon'ble High Court of Delhi titled State of Haryana Vs. Bharat Steel Tubes Ltd. AIR 1996 Delhi 198.
20. I have considered the submission. I have also studied the judgment. The judgment is distinguishable on facts as well as on law. In the matter before the Hon'ble High Court of Delhi the defendant had raised a plea that the suit of the plaintiff was barred by limitation. In response to the said plea, the plaintiff had averred that by CS DJ No. 8429/2016 Page 16 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
letter dated 29.08.1979, the period of limitation got extended for a further period of three years. Hon'ble High Court of Delhi while discussing the law under section 18 of the Limitation Act in relation to the acknowledgement in writing, had held that when a statement of liability is coupled with a statement that it has discharged the subsisting liability on the date can not be inferred and that the statement must be taken as a whole and the intention must be gathered by reading the document as a whole and not by confining attention to a particular portion of it.
21. In the present case, however, the issue is not whether the statement of account is to be read in whole or not. The question put to the Ld. Counsel for plaintiff was as to why the factum of dishonouring of the cheque in question before receiving the amount through RTGS was not mentioned in the pleadings. No reasonable explanation has been provided to the said query. In the absence of any explanation was provided, there is only one logical and plausible explanation is available as discussed hereinabove.
22. Further, perusal of the record would show that as per the plaintiff, the defendant had placed order for 500 plates which was subsequently increased to 1000 plates.
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There is no date mentioned in the plaint, or in the legal notice, or in the affidavit of evidence of PW1 as to when the order was increased to 1000 plates. For the first time in the reply to the application of the defendant for leave to defend, while replying to the application, it is stated by the plaintiff in para 5 of parawise reply of preliminary objections that the defendant had increased 500 more plates on the spot. However, during his crossexamination the PW1 would state that a day before the event, the defendant had raised the order to 1000 plates. Now, these two statements of the plaintiff are contradictory to each other. There is no explanation as to which of the two is the correct statement. There is no material on record to show as to when the order was increased by the defendant from 500 plates to 1000 plates. There is no confirmation in writing or any other document in writing to prove the said fact. It appears highly improbable that a caterer who had arranged food and crockery for 500 people on the spot, would easily increase to cater to double number of people i.e. 1000 people without facing any difficulty.
23. The PW 1 in his crossexamination has stated that if an order is received for any number of people, for say 700 people, preparation of food for 10% extra people is CS DJ No. 8429/2016 Page 18 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
done to cater the needs of the customer. Therefore, it is highly improbable that a caterer who would made preparation only for 10% extra guests would be in a position to easily arrange the food and crockery item for remaining 450 person included extra. There is no document on record to show as to how such a preparation was done by the plaintiff to fulfill the alleged requirement. It is not a small increase in the total number of the plates which could be easily arranged. The plaintiff has not filed any document to show that it had arranged the food and the other material including the crockery from its own resources or it had borrowed the same from some other shop/supplier. No document in this regard has been produced by the plaintiff.
24. Further, the plaintiff has not produced any documentary evidence in the form of proforma invoice, confirmation in writing or through electronic modes regarding the increase in the total number of plates. The plaintiff has also not filed documents of transportation of such a huge amount of food items and crockery arranged by it for the said program. As per the PW1, the plaintiff keep its cutlery sets etc. at its godown located at GT CS DJ No. 8429/2016 Page 19 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
Karnal Road which is at very long distance from the place where the program was arranged.
25. The plaintiff has relied upon the invoice/bill which is Ex.PW1/X1. This is original invoice. It does not bear any receiving of the defendant or its employees/authorized person. There is no contention in the plaint or affidavit of evidence that the said invoice/bill was ever served upon the defendant. During crossexamination of the PW1, he would state that the invoice was sent to the office of the defendant through a messenger. However, the PW1 did not recall the name of the said messenger or the date when it was sent to the office of the defendant. PW1 has also stated that he did not send the messenger himself. Thus, his statement that a messenger was sent is shown to be hearsay which can not be relied upon in the evidence. Hence, I am of the considered opinion that the plaintiff has failed to prove on the preponderance of probabilities that it had sent the invoice Ex.PW1/X1 to the office of the defendant for service. This is a self serving document of the plaintiff. As the plaintiff has failed to show that it had ever tried to serve the invoice upon the defendant, it can not be used in evidence against the defendant.
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26. The plaintiff has also relied upon the copies of details of sales tax and service tax with copy of department of VAT return and service tax return alongwith certificate under section 65 B Indian Evidence Act which are Ex.PW1/B to Ex. PW1/B5. During the evidence, at the time of tendering of the affidavit, the defendant had taken objection on exhibition of these documents regarding mode of proof. The plaintiff did not examine any witness to prove these documents. Further, during cross examination, PW1 would state that he had not taken printout of those documents and that the printout were taken by the accounts department. He did not know who had taken those printout from the accounts department. The certificate under Section 65 B Indian Evidence Act which is Ex.PW1/B5 has been signed by witness Anil Sayal. Thus, it is shown by the defendant that the certificate under Section 65B Indian Evidence Act is not a proper certificate as per law and hence, the documents Ex.PW1/B to Ex.PW1/B4 are not proved as per law and they are not admissible under the law. I get strength from the judgment of Hon'ble Supreme Court of India in Anvar P.V vs P.K.Basheer & Ors, Civil Appeal No. 4226/2012, decided on 18 September, 2014, Wherein the Hon'ble CS DJ No. 8429/2016 Page 21 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
Supreme Court has discussed the law related to Section 65 B Indian Evidence Act. It has held as under:
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
"(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
"(ii) The information of the kind contained in CS DJ No. 8429/2016 Page 22 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
"(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and "(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
"Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
"(a) There must be a certificate which identifies the electronic record containing the statement; "(b) The certificate must describe the manner in which the electronic record was produced; "(c) The certificate must furnish the particulars of the device involved in the production of that record; "(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and "(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
"It is further clarified that the person need only to state in the certificate that the same is to the best of CS DJ No. 8429/2016 Page 23 of 25 Dinesh Kumar/ADJ02/South/Saket/ND/28.09.2022 M/s. Mithas Exclusive Catering Services Vs. M/s Angle Infrastructure Pvt. Ltd. & Anr.
his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
"Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence. "The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
27. Thus, in view of the settled position of law, the document Ex.PW1/B to Ex.PW1/B4 can not be read in evidence in favour of the plaintiff. In any case those documents are self serving documents of the plaintiff. They are unable to prove that the defendant had placed order for 1000 plates as claimed by the plaintiff.
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28. In the light of the discussion hereinabove, the plaintiff has failed to prove on the preponderance of probabilities that it had any cause of action against the defendant. It is also shown that the plaintiff concealed the material fact of presentation of the cheque before the RTGS amount was transferred by the defendant in the account of the plaintiff. The plaintiff has also failed to prove that it had catered 1000 plates to the defendant. Therefore, the plaintiff is not entitled to recovery of the amount as claimed by it. The issue no. 1,2 and 3 are therefore decided against the plaintiff.
29. Issue No. 4: Relief.
30. The plaintiff is not entitled to any relief. The suit of the plaintiff is dismissed and disposed of accordingly. The parties shall bear their own cost.
31. The decree sheet be prepared accordingly.
Pronounced in the open Court on this 28 th Day of September 2022. Digitally signed by DINESH DINESH KUMAR KUMAR Date: 2022.09.28 15:46:18 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE02 SOUTH, SAKET COURTS, NEW DELHI.
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