Delhi District Court
Propyogi Advisors P. Ltd vs Royalgolf Link City Projects P. Ltd on 6 December, 2025
IN THE COURT OF SHRI DEVENDER KUMAR, DISTRICT JUDGE
(COMMERCIAL COURT-01), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm.) No. 320/2023
M/s Propyogi Advisors Private Limited
(Formerly known as Homes On Wheels Realtors Pvt. Ltd.)
Chamber No. 6, Trishul Tower,
Kaushambhi, Ghaziabad,
Uttar Pradesh - 201010 ...... Plaintiff
Vs.
Royal Golf Link City Projects Private Limited
Plot No. 101, C-19, 2nd Floor,
Pratap Nagar, Mayur Vihar, Phase -1,
East Delhi -110091 ...... Defendant
Date of Institution : 29.08.2023
Date of Arguments: 11.11.2025
Date of Judgment : 06.12.2025
JUDGMENT:
1. Vide this judgment, I shall dispose of this suit for recovery of Rs. 74,54,453/- along with interest @ 18% per annum with litigation charges filed by the plaintiff and against the defendant. Brief facts of the case are as under:
Digitally CS (Comm) No. 320/2023 signed by DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 1/32 KUMAR Date:
2025.12.06 16:01:57 +0530
2. Plaintiff is a Private Limited Company registered under Companies Act, 1956 and is being represented through its AR Mr. Tanuj Mavi, who is authorized to institute this suit through Board Resolution dated 27.04.2023. It is further alleged that the plaintiff is engaged in the business of Real Estate activities with own or leased property or contract basis since 2012, whereas the defendant is also a private limited and engaged in the business of real estate activities. It is further alleged that sometime in the month of June, 2015, the defendant contacted to the plaintiff for consultation / brokerage services and after due deliberation, it was decided that consultation brokerage shall be decided on case to case basis and in case of default of payment, interest @ 15% per annum shall be payable. It is further alleged that the plaintiff started bringing clients for the defendant to purchase units and during the period from June, 2015 till November, 2017, the plaintiff provided consultation / brokerage services to the defendant for a total brokerage amount of Rs. 42,81,967/-, out of which, the defendant paid Rs. 5,32,779/- thereby leaving behind balance amount of Rs. 37,49,188/-, which is still unpaid.
2.1. Plaintiff has further alleged that on 11.03.2020, the defendant sent a complete compilation of brokerage amount in excel sheet containing three sheets and shown total brokerage outstanding of Rs. 47,77,783/-, Rs. 42,81,967/- and 51,44,463/- respectively, whereas amount of Rs. 19,84,706/- and Rs. 24,84,706/- was shown as paid through bogus entries. It is further alleged that by said email the defendant acknowledged outstanding debt and copy of email is already annexed. It is further alleged that the plaintiff approached to the defendant many times to pay Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 2/32 KUMAR Date:
2025.12.06 16:02:04 +0530 outstanding amount but no amount was paid and now the defendant is liable to pay interest @ 15% per annum against outstanding out and now total outstanding comes to Rs. 74,54,453/-. It is further alleged that the defendant has failed to pay due amount despite repeated requests and the plaintiff has prayed for a decree of principal amount of Rs. 37,49,188/- and interest amount of Rs. 37,05,262/- along with cost of litigation and future interest @ 18% per annum. Plaintiff has prayed for a decree of suit amount.
3. Defendant has filed written statement thereby alleging that present suit is pertaining to the period from June, 2015 till November, 2017 and is barred by limitation. It is further alleged that the plaintiff has no cause of action to file this case, as there is no written or any agreement between the parties regarding brokerage and the plaintiff has relied upon false and fabricated documents just to make out a case against the defendants, which is also barred by limitation. It is further alleged that the plaintiff has filed this case just on the basis of email dated 11.03.2020 which was sent by one Vikash Rana from his personal ID, whereas Ruchika Kapoor and Vikash Rana were working for the defendant company as CRM official (Customer Relation Management) and were authorized only to maintain harmonious relationship between the company and its customers / allottees, whereas they were not authorized to share finance related sheets / calculation or to acknowledge debit / liability of vendors / broker's.
3.1. Defendant has further alleged that Vikash Rana shared only office communication with addressee of the email and later on he was found indulged in unauthorized activities and defrauded some customers / Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 3/32 KUMAR Date:
2025.12.06 16:02:09 +0530 allottees, due to an FIR No. 67/2024 under Section 420/406/467/468/471/380 IPC was registered against him with PS Surajpur, Gautam Budh Nagar, UP, in which he has been chargesheet and facing prosecution. It is further alleged that alleged calculation sheet annexed with emails is false and fabricated document and suit of the plaintiff is liable to be dismissed being not based upon reliable documents. Defendant has denied any debt or outstanding quq services by the plaintiff or its liability to pay any brokerage and has alleged that the plaintiff provided services of Rs. 5,32,779/- which has already been paid and now nothing is outstanding towards the defendant. Defendant has denied all the allegations of the plaintiff and has prayed that this suit is liable to be dismissed and may be dismissed.
4. Plaintiff has filed replication to written statement of the defendant thereby denying all allegations of the defendant and has reiterated its pleadings.
5. On the basis of the pleadings of the parties, the following issues were framed vide order dated 08.10.2024 as under:
ISSUES
1. Whether plaintiff is entitled for a decree of recovery of Rs. 74,54,453/- against the defendant? OPP
2. Whether the plaintiff is entitled for interest pendente-lite and future? If so, at what rate and for which period? OPP
3. Whether the suit filed by the plaintiff is barred by limitation? OPD
4.Relief.
Digitally CS (Comm) No. 320/2023 signed by Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA 4/32 DEVENDRA KUMAR KUMAR Date:
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6. To prove case, the plaintiff has examined PW1 Tanuj Mavi, who has deposed in verbatim of plaint in examination in chief and has relied upon documents Ex. PW1/1 to Ex. PW1/14 except Ex.PW1/5, which is Mark PW1/5.
6.1. During cross examination, PW1 has deposed that he is CEO of the plaintiff company since 2013 and is authorized to represent the plaintiff company through Board Resolution Ex.PW1/2. It is further deposed that the plaintiff provided services to the defendant from June, 2015 to November, 2017 and no service was provided after November, 2017. It is further deposed that he did not remember if the plaintiff company sent any email to the defendant during June 2015 to November, 2017 regarding the outstanding dues and recoverable amount. It is further admitted that there was no written agreement of brokerage between the plaintiff and defendant, but it was oral agreement. It is further deposed that amount of around Rs. 37,50,000/- principal was due and recoverable from the defendant on the date of filing of the suit and he along with his Manager Dhananjay talked various time to resolve dispute but no written communication was made between them. It is further deposed that he did not remember exact location where he used to introduce the customers to the official of the defendant, but he used to take the customers to Pari Chowk, Grater Noida Sector Delta, where the defendant's project was and he introduced 40-50 customers to the defendant and all the customers were from Delhi / NCR. He did not remember the addresses of those customers and it is denied that he did not introduce any customer to the defendant company. It is admitted that he has no document to prove that he introduced any customer to the Digitally signed by DEVENDRA CS (Comm) No. 320/2023 DEVENDRA KUMAR Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd.KUMAR 5/32 Date:
2025.12.06 16:02:19 +0530 defendant at any point of time.
7. Defendant has examined DW1 Kamleshwar Nath Singh, who has deposed in verbatim of written statement and has relied upon documents Ex.DW1/1 to Ex.DW1/4 except Ex. DW1/3 and Ex. DW1/4, which were not part of record.
7.1. During cross examination, DW1 has produced minutes book of board resolution Ex.DW1/1 and Ex.DW1/2, but those were not properly paginated. It is further deposed that he has been working with the defendant company since 2022 as Estate Manager and was looking after the day to day activities of all projects of the defendant company. It is admitted that the plaintiff has worked as a commission agent for finding customers for sale of apartments / flats, but the defendant has already cleared all claims of the plaintiff according to bills, but he cannot provide details of flats / apartments for which bills were raised. It is further deposed that he was not aware about rate of commission offered by the defendant to the plaintiff for transaction, but the plaintiff submitted bills of around Rs. 5,32,000/-, which have cleared.
7.2. DW1 was not aware on what basis the plaintiff's commission was calculated but it is admitted that Vikas Rana and Ruchika Kapoor were employees of the defendant and were looking after customer relationship management, whereas Ruchika Kapoor had left job in the year 2021 before his joining and Vikas Rana left job in the month of March -April, 2022. It is further deposed that he came to know about Ruchika Kapoor after going through file and the defendant initiated criminal proceedings against Vikas Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 6/32 KUMAR Date:
2025.12.06 16:02:27 +0530 Rana for forging record, whereas no criminal / civil action was taken against Ruchika Kapoor. It is further deposed that FIR No. 67/2024 has been registered against Vikas Rana, which is Ex.DW1/P1, whereas it is not pertaining to the defendant company in respect of allegations levelled by some customer. It is further deposed that the defendant has not placed any document on record to show work profile of Vikas Rana and Ruchika Kapoor and even the defendant did not file any complaint before any Forum against the plaintiff with regard to act of forgery as alleged in written statement. It is further deposed that he was not aware if there was any oral understanding between the plaintiff and defendant regarding rate of commission, but the defendant paid brokerage of Rs. 5,32,000/- as per bills raised and liability of the defendant to pay amount of Rs. 37,49,188/- is denied. It is further denied that the plaintiff is entitled for recovery of brokerage @ Rs. 50 per square feet for 100 units sold out through the plaintiff.
8. I have heard the arguments and perused the record. My issue wise findings are as under: -
ISSUE No. 3: - I am taking up Issue No. 3 first, as it pertaining to the period of limitation. Admittedly, the plaintiff has limitation of three years to file this suit for recovery against due amount and this period of limitation shall start from the date of cause of action. Section 3 of Limitation Act, 1963 mandates that limitation to file a suit has to be considered by the court even without citing limitation as defense by opposite party. Section 3 of limitation act is as under:
Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 7/32 KUMAR Date:
2025.12.06 16:02:31 +0530 Section-3. Bar of limitation.--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2) For the purposes of this Act,--
(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted--
(i) in the case of a set off, on the same date as the suit in which the set-off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
9. Section 3 came into interpretation before Hon'ble Apex Court in case titled Noharlal Verma v. Distt. Coop. Central Bank Ltd., (2008) 14 SCC 445 and relevant observations are as under:
33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under:
"3. Bar of limitation.--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence."
(emphasis supplied) Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defendant, respondent or opponent, the Digitally CS (Comm) No. 320/2023 signed by DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 8/32 KUMAR Date:
2025.12.06 16:02:36 +0530 court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation.
10. Further, in case titled V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao, (2005) 4 SCC 613, it has held that;
20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3 SCR 495;
"Section 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate court comes to an erroneous decision, it is open to the court in revision to interfere with that conclusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter."
After going through the abovesaid cases, it stands proved that the limitation is material to determine any lis and any litigation barred by limitation shall be dismissed without any exception and it shall also be duty of the court to dismiss such litigation.
11. Admittedly, cause of action determines starting point of limitation and cause of action starts when the plaintiff accrues right to file litigation to seek execution of such right/s. In this case, Para 17 of plaint has set up cause of action and the plaintiff has alleged that the plaintiff provided Digitally signed by CS (Comm) No. 320/2023 DEVENDRA KUMAR Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA 9/32 KUMAR Date:
2025.12.06 16:02:42 +0530 services to the defendant during the period from June, 2015 to November, 2017 and the defendant sent an email to the plaintiff on 11.03.2020 to acknowledge liability of due amount. Plaintiff has cited limitation w.e.f. 11.03.2020, which was halted during covid period during the period from 15.03.2020 to 28.02.2022 and the plaintiff has filed this suit on 29.08.2023.
12. Ld. Counsel for plaintiff has argued that this suit is within limitation as last transaction between the parties took place in the year 2017, whereas limitation stopped due to corona outbreak during the period from 15.03.2020 to 28.02.2022 and, after excluding this period this suit filed on 29.08.2023 is within limitation. On the other hand, Ld. Counsel for defendant has argued that this suit is beyond limitation, as the plaintiff has calculated limitation according to financial year/s and limitation expired on 30.03.2021 and this suit filed on 29.08.2023 is barred by limitation. It is further argued that the plaintiff shall not be entitled for extension of limitation during covid period, as the period of limitation had already been expired much prior to covid period, due to this suit is liable to be dismissed.
13. Admittedly, this claim is pertaining to the period from June, 2015 to November, 2017. Plaintiff has not filed any written agreement regarding services provided to the defendant, whereas DW1 has admitted that the plaintiff worked for the defendant and provided customers for project of the defendant The Hemisphere and raised bills of Rs. 5,32,000/-, which were duly paid. DW1 has further deposed that he was not aware if there was any oral understanding between the parties regarding rate of commission, Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 10/32 KUMAR Date:
2025.12.06 16:02:48 +0530 whereas it is denied that the plaintiff was entitled to get brokerage @ 50/- per square feet, or that provided customers for 100 units. On the other hand, PW1 has also admitted that there no written agreement of brokerage and even no specific date has been given in plaint about brokerage agreement, however both the parties had commercial relations and it is not disputed. Plaintiff has worked for the defendant and the defendant has paid brokerage of Rs. 5,32,000/-, whereas period of work or its specific duration is not clear from the record.
14. However, Ld. Counsel for plaintiff has argued that employee of the defendant sent an e-mail by which the defendant acknowledged its liability to pay outstanding amount. Copy of e-mail annexed with excel sheet containing details of work allegedly performed by the plaintiff coupled with details of payment stated to be outstanding towards the defendant. Ld. counsel has called it a written acknowledgment of dues, which is denied by the defendant. Since the plaintiff has taken a specific plea of written acknowledgment, accordingly nature of written acknowledgment must be determined.
Law to determine nature of written acknowledgment or part payment has been provided under Section 18 & 19 of Limitation Act, 1963, which are as under:
Section - 18. Effect of acknowledgment in writing.--(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
Digitally
signed by
CS (Comm) No. 320/2023 DEVENDRA
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 11/32
KUMAR Date:
2025.12.06
16:02:54
+0530
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes of this section--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right,
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf, and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right."
& Section-19. Effect of payment on account of debt or of interest on legacy.--Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Explanation.--For the purposes of this section--
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;
(b) "debt" does not include money payable under a decree or order of a court."
In view of abovesaid sections, it is clear that a written acknowledgment of debt under section 18 must be in writing and part payment u/s 19 must be within the period of limitation to extend period of limitation.
Digitally
CS (Comm) No. 320/2023 signed by
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA 12/32
DEVENDRA KUMAR
KUMAR Date:
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15. Section 18 of Limitation Act came into interpretation before Hon'ble Apex Court in case titled Tilak Ram v. Nathu, 1966 SCC OnLine SC 99 and relevant observations are as under:
8. The section requires (i) an admission or acknowledgment (ii) that such acknowledgment must be in respect of a liability in respect of a property or right, (iii) that it must be made before the expiry of the period of limitation and (iv) that it should be in writing and signed by the party against whom such property or right is claimed. Under the Explanation such an acknowledgment need not specify the exact nature of the property or the right claimed. It is manifest that the statement relied on must amount to an admission or acknowledgment and that acknowledgment must be in respect of the property or right claimed by the party relying on such a statement.
16. Further, in case titled Food Corpn. of India v. Assam State Coop. Marketing & Consumer Federation Ltd., (2004) 12 SCC 360, it has held that;
14. According to Section 18 of the Limitation Act, an acknowledgement of liability made in writing in respect of any right claimed by the opposite party and signed by the party against whom such right is claimed made before the expiration of the prescribed period for a suit in respect of such right has the effect of commencing a fresh period of limitation from the date on which the acknowledgement was so signed. It is well settled that to amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act, it need not be accompanied by a promise to pay either expressly or even by implication.
15. The statement providing foundation for a plea of acknowledgement must relate to a present subsisting liability, though the exact nature or the specific character of the said liability may not be indicated in words. The words used in the acknowledgement must indicate the existence of jural relationship between the parties such as that of debtor and creditor. The intention to attempt such jural relationship must be apparent. However, such intention can be inferred by implication from the nature of the admission and need not be expressed in words. A clear statement containing acknowledgement of liability can imply the intention to admit jural relationship of debtor and creditor. Though oral evidence in lieu of or making a departure from the statement sought to be relied on as acknowledgement is Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd.
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excluded but surrounding circumstances can always be considered. Courts generally lean in favour of a liberal construction of such statements though an acknowledgement shall not be inferred where there is no admission so as to fasten liability on the maker of the statement by an involved or far-fetched process of reasoning. (See Shapoor Freedom Mazda v. Durga Prosad Chamaria [AIR 1961 SC 1236] and Lakshmirattan Cotton Mills Co. Ltd. v. Aluminium Corpn. of India Ltd. [(1971) 1 SCC 67 : (1971) 2 SCR 623] ) So long as the statement amounts to an admission, acknowledging the jural relationship and existence of liability, it is immaterial that the admission is accompanied by an assertion that nothing would be found due from the person making the admission or that on an account being taken something may be found due and payable to the person making the acknowledgement by the person to whom the statement is made.
17. Further, in case titled New Mangalore Port Trust v. Clifford D'Souza, (2025) 5 SCC 577, it has observed that
25. Section 18 of the Limitation Act is very clear that where liability is acknowledged in respect of any property or right, a fresh limitation may be computed from the time when the acknowledgment was so signed. Clause (a) of the Explanation to Section 18 declares that an acknowledgment would be sufficient for various reasons to be stated therein, which includes the time for payment has not yet come as one of the reasons. In the present case this reason squarely applies.
18. Section 19 was also dealt with by Hon'ble Apex Court in case titled Shapoor Freedom Mazda v. Durga Prasad Chamaria , 1961 SCC OnLine SC 147 and relevant observations are as under:
6. It is thus clear that acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship.
Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 14/32 KUMAR Date:
2025.12.06 16:03:18 +0530 Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.
19. In another case titled Shanti Conductors (P) Ltd. v. Assam SEB , (2020) 2 SCC 677, it has further observed that:
16. We may notice the judgment of this Court dealing with Section 20 of the Limitation Act, 1908, which was akin to present Section 19 of the Limitation Act, 1963. In Sant Lal Mahton v. Kamla Prasad , 1951 SCC 1008, this Court held that for applicability of Section 20 of the Limitation Act, 1908, two conditions were essential that the payment must be made within the prescribed period of limitation and it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. This Court further held that for claiming benefit of exemption under Section 20, there has to be pleading and proof. In paras 9 and 10, the following has been laid down :
"9. It would be clear, we think, from the language of Section 20, Limitation Act, that to attract its operations two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under Section 20, Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed Digitally signed by DEVENDRA CS (Comm) No. 320/2023 Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd.DEVENDRA KUMAR 15/32
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acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take.
10. ... If the plaintiff's right of action is apparently barred under the statute of limitation, Order 7 Rule 6, Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act, upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under Section 20, Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part-payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section."
20. After going through abovesaid case law, it stands proved that a written acknowledgment, or part payment must be within the existing period of limitation and must be a clear acknowledgment of outstanding liability towards the party making it. In view of abovesaid legal proposition, now nature of e-mail Ex.PW1/6 and excel sheet Ex.PW1/7 has to be considered, as to whether these are written acknowledgment of debt and payment or not.
21. Admittedly, e-mail is dated 13, February, 2023 (Ex.PW1/6), though it has been cited as dated 11.03.2020, was sent by Ruchika Kapoor, who was employee of the defendant and this fact is not disputed. However, the Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 16/32 KUMAR Date:
2025.12.06 16:03:23 +0530 defendant has disputed that Ruchika Kapoor was dealing with accounts and was not authorized to send any e-mail to customer or anyone. This email was accompanied with excel sheet Ex.PW1/7 containing details of customers, amount received and details of total payable brokerage. However, email has not proved that it was an acknowledgment of debt or liability of the defendant. Rather, the plaintiff has averred in Para 10 of plaint that the defendant has shown wrong details of payment which may not be considered a due acknowledgment. Similarly, e-mail has also not acknowledged any liability of the defendant to determine it as written acknowledgment. Rather, it has just forwarded details which are not sufficient to prove acknowledgment of debt.
22. Now coming to back to point of limitation, the starting point of limitation was on 30.11.2017 and expired on 30.11.2020. However, during corona period the limitation was excluded for the period from 15.03.2020 to 28.02.2022 and Ld. Counsel for plaintiff has claimed exemption from limitation. As such, it is necessary to go through judgment dealing with exclusion of corona period from limitation is titled Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117 as under:
5. Taking into consideration the arguments advanced by the learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions:
5.1. The order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] is restored and in continuation of the subsequent orders dated 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 :
(2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC (L&S) 50] , 27-4-2021 [Cognizance for Extension of Limitation, In re, Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 17/32 KUMAR Date:
2025.12.06 16:03:27 +0530 (2021) 17 SCC 231 : 2021 SCC OnLine SC 373] and 23-9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947] , it is directed that the period from 15-3-2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-
judicial proceedings.
5.2. Consequently, the balance period of limitation remaining as on 3- 10-2021, if any, shall become available with effect from 1-3-2022.
5.3. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply.
5.4. It is further clarified that the period from 15-3-2020 till 28-2- 2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos
(b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
In view of abovesaid judgment, it is clear that limitation to file all suits / proceedings was halted during corona period. However, if the period of limitation was going to expire during corona period, then balance period of limitation upto corona restriction was allowed after corona restriction However, if limitation of the case expired during corona period, then a fresh period of 90 days was granted to file a litigation.
23. In this case, the period of limitation was going to expire on 30.11.2020 thereby meaning the period of limitation expired during the period from 15.03.2020 to 29.02.2022, due to the plaintiff got additional 90 days to file this suit in terms of Clause 5.3 of judgment Cognizance for Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 18/32 KUMAR Date:
2025.12.06 16:03:31 +0530 Extension of Limitation, In re, (2022) 3 SCC 117. In fact, limitation to file this suit was available to the plaintiff only during 30.11.2017 to 30.11.2020 and additional period of 90 days w.e.f. 01.03.2022 to 01.06.2022 was also extended, whereas this suit has been filed on 29.08.2023, which is definitely barred by limitation.
24. So far as effect of e-mail and excel sheet Ex.PW1/6 and Ex.PW1/7 is concerned, these documents were nowhere written acknowledgment of debt and liability to extend period of limitation. A written acknowledgement must contain admission or acknowledgment of liability in respect of a property or right and must be signed by the party making it. However, in this case, documents Ex.PW1/6 & Ex.PW1/7 are just communication between the parties and description of some calculation and may not be considered any written acknowledgment of debt. Rather this document is also not bearing signature of anyone on behalf of the defendant or seal of the company and cannot be considered to extend period of limitation.
Plaintiff has not filed any statement of account /ledger to determine part payment to extend period of limitation, so limitation to file suit under section 18/ or 19 of Limitation Act could not be proved.
25. Even email / acknowledgment dated 13th February, 2023 could have not extended limitation which had already been expired on 01.06.2022. As such, from every angle suit is barred by limitation. Defendant has discharged the onus to prove this issue and issue no.3 is decided in favor of the defendant and against the plaintiff.
Digitally
signed by
CS (Comm) No. 320/2023 DEVENDRA
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 19/32
KUMAR Date:
2025.12.06
16:03:36
+0530
26. ISSUE Nos. 1 & 2- The onus to prove both issues fixed upon the plaintiff and to discharge onus, the plaintiff has examined PW1 and has also cross examined DW1. However, both the parties are the companies, so institution of the case on behalf of the plaintiff and contest on behalf of the defendant has to be determined. Admittedly, a civil suit by a company / corporation has to be signed and verified by authorized representative in terms of Order 29 Rule 1 of CPC, whereas appointment of recognized representative must be in terms of Order 3 Rule 2 of CPC. Order 29 Rule 1 is as under:
Order 29 Rule 1. Subscription and verification of pleading.-- In suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
27. In view of Order 29 Rule1 of CPC, authority mentioned under abovesaid provision must sign and verify pleadings like Secretary, Director, or any other Principal Officer of the company / Corporation. These Authority may sign and verify pleadings besides other Authorized Representatives, as appointed by a company / corporation on its behalf through Board Resolution. The authority of other recognized agents has been prescribed under Order 3 Rule 1 & 2 of CPC as under:
Rule 1. Appearances, etc., may be in person, by recognized agent or by pleader.--Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be, on his behalf :
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
Digitally
signed by
CS (Comm) No. 320/2023 DEVENDRA
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 20/32
KUMAR Date:
2025.12.06
16:03:41
+0530
Rule 2. Recognised agents.--The recognised agents of parties by whom such appearances, applications and acts may be made or done are--
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.
28. In view of abovesaid legal proposition, it stands proved that recognized representative may be authorized by way of power of attorney / resolution of Board of Directors in terms of Section 291 of Companies Act, 1956 (Now corresponding section under Companies Act, 2013). The authority of authorized representative under Order 3 Rule 1 & 2 CPC viz-a- viz signing authority of authorized representative under Order 29 rule 1 & 2 of CPC has been defined in case titled Nibro Ltd. v. National Insurance Co. Ltd., (1991) 70 Comp Cas 388 (Delhi) as under:
Order 3, rule 1 provides that any appearance, application or act in or to any court required or authorise by law can be made or done by the party in person or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Provided of course, such an appearance, application or act in or to any court is required or authorised by law to be done or done by a party in such court. Where, however, there is an express provision of law, then that provision will prevail. Thus, if an authority is given to a pleader or a recognised agent as provided by law, the recognised agent or pleader can file an appearance or file a suit in court if the party himself is not in a position to file it. In my view, if a party is a company or a corporation, the recognised agent or a pleader has to be authorise by law to file such a plaint. Such an authority can be given to a pleader or an agent in the case of a company by a person specifically authorised in this behalf. In other words, a pleader or an agent can be authorised to file a suit on behalf of a company only by an authorised representative of the company. If a director or a secretary is authorised by law, then he can certainly give the authority to another person as Digitally CS (Comm) No. 320/2023 signed by Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA 21/32 DEVENDRA KUMAR KUMAR Date:
2025.12.06 16:03:48 +0530 provided under Order 3, rule 1.
The authority of a principal officer of a company in relation to suits filed on behalf of the limited company does not extend beyond what is laid down in Order 29 of the Code of Civil Procedure. That provision does not entitle the principal officer of a company to file a suit on its behalf and for that the authority has to be found either in the articles of association of the company or in the resolution of its board of directors. In the articles of association of several companies, provision is generally made authorising their managing directors and other officers to file and defend suits on their behalf. Similarly, the board of directors of a company can authorise the institution of a suit on behalf of the company by a resolution. In the case of some companies the articles empower the managing director or directors to appoint general attorneys and general managers and given them authority to institute suits on behalf of the company. But in the absence of any proof in regard to any such power having been conferred on Shri Ram Lal Choudhary, it is not possible to accept his statement that he was authorised to file the suit as the principal officer of the plaintiff hotel. It is well-settled that under section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting, in all other cases the board of directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the memorandum and articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects the policy and finances of the company. Thus , unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say such a power can be conferred by the board of directors only by passing a resolution in that regard.
29. Further, in a landmark judgment titled United Bank of India v. Naresh Kumar, (1996) 6 SCC 660, it has held that;
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. 22/32 DEVENDRA KUMAR KUMAR Date:
2025.12.06 16:03:52 +0530 curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-
Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suit.
Digitally
signed by
CS (Comm) No. 320/2023 DEVENDRA
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 23/32
KUMAR Date:
2025.12.06
16:03:58
+0530
30. A combined reading of both the abovesaid judgments made it clear that pleadings must be signed by authority mentioned under Order 29 Rule 1, or by any authorized agent / representative. The authorization of any authorized representative may be in terms of Order 3 Rule 2 of CPC, or by the company through resolution of Board of Directors in terms of Section 291 of Companies Act, 1956 (now corresponding section under Companies Act, 2013). However, authority of a person/s mentioned under Order 29 Rule 1 of CPC to sign pleadings must be proved through Article of Association, or Resolution of Board of Directors, as held in case titled State Bank of Travancore v. Kingston Computers (I) (P) Ltd. , (2011) 11 SCC 524 as under:
14. In our view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K. Shukla was appointed as a Director of the Company and a resolution was passed by the Board of Directors of the Company to file a suit against the appellant and authorised Shri Ashok K. Shukla to do so. The letter of authority issued by Shri Raj K. Shukla, who described himself as the Chief Executive Officer of the Company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K. Shukla to authorise another person to file a suit on behalf of the Company.
13. The Division Bench of the High Court did take cognizance of the fact that the Company had not summoned any witness from the office of the Registrar of Companies to prove that Shri Ashok K. Shukla was a Director of the Company and that the minute book of the Company had not been produced to prove the appointment of Shri Ashok K. Shukla as a Director, but reversed the finding of the trial court on Issue 1 on the basis of the authority letter issued by Shri Raj K. Shukla and resolutions dated 14-2-2001 and 19-4-2001, by which the Board of Directors of the Company had authorised some persons to operate the bank account.
31. However, in this case, this suit has been instituted on behalf of the plaintiff by Tanuj Mavi, AR, who has been examined as PW1. PW1 has Digitally CS (Comm) No. 320/2023 signed by Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA24/32 DEVENDRA KUMAR KUMAR Date:
2025.12.06 16:04:06 +0530 proved Board Resolution Ex.PW1/2 and has proved authority of AR to institute this suit. On the other hand, WS has been filed by one Virender Singh, AR and his board resolution has been proved by DW1 Kamleshwar Nath Singh as Ex.DW1/2, whereas his own board resolution is Ex.DW1/1. In view of abovesaid board resolutions, it stands proved that both the parties are duly authorized through board resolutions and this suit has been duly instituted and contested by the parties.
32. Now facts of this case have to be seen. Plaintiff has alleged that he has dealing in Real Estate and provided around 100 customers to the defendant for its project The Hemisphere. It is further alleged that the defendant was agreed to pay commission for each customer but failed to pay total brokerage charges of Rs. 42,81,967/-, whereas only part payment of Rs. 5,32,779/- was made, thereby leaving behind a balance of Rs. 37,49,188/-. It is further alleged that on 11.03.2020, on the request of the plaintiff, the defendant sent a complete compilation of brokerage amount in excel sheet depicting total brokerage of Rs. 47,77,783/-, Rs. 42,81,967/- and Rs. 51,44,463/- respectively, whereas paid amount of Rs. 19,84,706/- and 24,84,706/- was also shown. It is further alleged the defendant failed to pay due amount and rather one of its employees sent email dated 11.03.2020 thereby acknowledging outstanding amount in excel sheet and outstanding amount with interest @ 15 % per annum comes to Rs. 74,54,554/-.
33. To prove such allegations, the plaintiff has examined PW1 Tanuj Mavi, CEO of the plaintiff company. PW1 has acknowledged that no Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 25/32 KUMAR Date:
2025.12.06 16:04:10 +0530 written agreement of brokerage was executed between the parties and it was oral some understanding between them. Through this oral agreement/ understanding is not admitted by the defendant, yet the defendant through DW1 has admitted that the plaintiff provided certain customers to the defendant on commission basis and the defendant paid amount of Rs. 5,32,000/- in pursuance of bills raised by the plaintiff. PW1 has deposed that principal amount of Rs. 37,50,000/- was due and recoverable from the defendant on the date of filing of the suit, whereas the plaintiff never demanded this amount in writing. PW1 has failed to prove exact location where he used to introduce the clients to the officials of the defendant, whereas he used to take customers to Pari Chowk, Greater Noida, Sector Delta and introduced about 40-50 customers to the defendant from Delhi NCR, whereas he has failed to give descriptions of those customers. Contrary to it, DW1 was suggested by the plaintiff that the plaintiff provided services for more than 100 units against brokerage @ Rs. 50/- per Sq. feet. In fact, the plaintiff has no documentary evidence to prove that the plaintiff provided services to the defendant and has anything to recover.
34. On the other hand, DW1 has admitted that the plaintiff used to work as commission agent for the defendant to find out customers for sale of apartments /flats, whereas the defendant has cleared all claims of the plaintiff against bills / commission of Rs. 5,32,000/-. DW1 was not aware about rate of commission or any oral understanding to pay commission to the plaintiff. DW1 has denied that the defendant is liable to pay amount of Rs. 37,49,188/- along-with interest, or that the plaintiff provided services of more than 100 units of which commission @ Rs. 50/- per square feet is Digitally signed by CS (Comm) No. 320/2023 DEVENDRA Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 26/32 KUMAR Date:
2025.12.06 16:04:14 +0530 outstanding for Rs. 37,50,000/-. In fact, testimonies of both the parties have just proved their commercial relations and nothing else.
35. Admittedly, the plaintiff has filed this case and was supposed to prove case according to pleadings. Plaintiff has claimed outstanding amount of Rs. 37,50,000/- and onus to prove this relief was upon the plaintiff. Section 104 - 107 of BSA, 2023 deal with burden of proof viz-a- viz onus of proof are as under:
Section-104. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations.
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
Section - 105. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations.
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B. Section - 106. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is Digitally CS (Comm) No. 320/2023 signed by Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA 27/32 DEVENDRA KUMAR KUMAR Date:
2025.12.06 16:04:19 +0530 provided by any law that the proof of that fact shall lie on any particular person.
Illustration.
A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Section-107. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations.
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
36. The distinction between burden of proof and onus of proof has been dealt with by Hon'ble Apex Court in case titled Anil Rishi vs Gurbaksh Singh, AIR 2006 SC 1971 as under:
The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, (now 104 of BSA) which reads as under:-
"Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
Digitally
CS (Comm) No. 320/2023 signed by
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA 28/32
DEVENDRA KUMAR
KUMAR Date:
2025.12.06
16:04:25
+0530
Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
37. Further, in case titled Parimal vs Veena @ Bharti, AIR 2011 SC 1150, it has held that;
15. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
Digitally
CS (Comm) No. 320/2023 signed by
DEVENDRA
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 29/32
KUMAR Date:
2025.12.06
16:04:32
+0530
38. In view of abovesaid case law, it stands proved that initial burden to establish a fact is always on the party who alleges that fact and this onus may shift upon the opposite party, only if initial onus is discharged. Civil cases are to be proved on the basis of principle of preponderances of probabilities and onus to prove a fact in such cases is not so heavy as in criminal case. Here, if the plaintiff discharges initial onus to establish a fact, then onus shall shift upon the defendant to rebut such onus and this process shall continue till a fact is proved or disproved. In this case, the plaintiff was supposed to prove by positive evidence that it provided services of Rs. 42,81,967/- to the defendant and now an amount of Rs 37,50,000/- is outstanding towards the defendant. However, the plaintiff has not proved any such facts.
39. Ld. Counsel for plaintiff has heavily relied upon e-mail Ex.PW1/6 allegedly sent by representative of the defendant along with copy of ledger in excel sheet Ex.PW1/7. In fact, entire case of the plaintiff is running around this e-mail and excel sheet. Ld. Counsel has argued that this e-mail is dated 11.03.2020, whereas Ex.PW1/6 would show that it was actually dated 13.02.2023, sent in response of earlier e-mails dated 07.02.2021, 11.02.2021 and 30.08.2021, so it is misconceived that e-mail Ex.PW1/6 was/ is dated 11.03.2020. Further, this e-mail was annexed excel sheet Ex.PW1/7, which is a simple typed copy of some description of calculations. Neither e-mail has any body nor excel sheet is bearing any seal or signature of anyone on behalf of the defendant to connect it. In fact, merely on the basis of this calculation sheet, it cannot be said that the defendant acknowledged its financial liability and debt to pay amount. E-
Digitally
signed by
CS (Comm) No. 320/2023 DEVENDRA
Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA KUMAR 30/32
KUMAR Date:
2025.12.06
16:04:37
+0530
mail was allegedly sent by one Ruchika Kapoor through her e-mail ID [email protected] on 13.02.2023. Though the defendant has not disputed that Ruchika Kapoor was its employee, yet her authority to send this e-mail is denied. It is further alleged that she has already left job of the defendant way back in the year 2021 and DW1 has deposed that Vikash Rana and Ruchika Kapoor were looking after customer relationship management and were not authorized to send any e-mail to customers or anyone else. In fact, Ruchika Kapoor was working with the defendant and this fact is not disputed.
40. Since e-mail is not containing any information except forwarding of excel sheet Ex.PW1/7, accordingly it could not prove that Ruchika Kapoor was authorized to send this email or not. It is pertinent to mention here that this dispute between the parties was pertaining to 2017, whereas she has left job in the year 2021, whereas sent email was sent on 13.02.2023 which is beyond explanation. In fact, to prove all facts, the plaintiff was required to examine Ruchika Kapoor to substantiate its claim that this email was ever sent by Ruchika Kapoor to the plaintiff.
41. I have already given my observations while deciding legality of documents Ex.PW1/6 & Ex.PW1/7 and giving my findings on issue no.3 that these documents have failed to qualify criteria of written acknowledgment and a simple excel sheet without containing any name, signatures and stamp of the defendant company cannot be considered a piece of evidence to determine liability of the defendant. Contrary to it, the plaintiff has itself disputed genuineness of this Ex.PW1/7 in Para 10 of Digitally CS (Comm) No. 320/2023 signed by Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. DEVENDRA31/32 DEVENDRA KUMAR KUMAR Date:
2025.12.06 16:04:43 +0530 plaint by alleging that wrong payment details have been given, which has disputed genuineness of this document itself.
42. Admittedly, the plaintiff has filed this suit to recover outstanding amount of Rs. 37,49,188/- whereas has failed to prove that any such amount was outstanding towards the defendant. As such, the plaintiff has failed to discharge the onus to prove both issues no. 1 & 2 and both issues are decided in favour of the defendant and against the plaintiff.
43. Relief: - Since the plaintiff has failed to discharge the onus to prove any issue and all the issues have been decided in favour of the defendant and against the plaintiff, accordingly this suit is hereby dismissed. Decree sheet be prepared. No order as to cost. File be consigned to Record Room Digitally signed after necessary compliance. by DEVENDRA DEVENDRA KUMAR KUMAR Date:
2025.12.06 ANNOUNCED IN OPEN COURT 16:04:53 +0530 ON 6th day of December, 2025 (DEVENDER KUMAR) District Judge (Commercial Court-01) East District Karkardooma Courts, Delhi CS (Comm) No. 320/2023 Propyoti Advisors Pvt. Ltd. Vs. Royal Golf Link City Projects Pvt. Ltd. 32/32