Delhi District Court
Varun Veer Singh vs Amit Kumar on 27 May, 2024
IN THE COURT OF SH. SOMITRA KUMAR,
DISTRICT JUDGE - 06 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI.
CNR NO.:- DLET01-001200-2021
RCA DJ NO.:- 05/2021
IN THE MATTER OF :-
Sh. Varun Veer Singh
Proprietor of M/s Vaibhav Construction
Having its office at:
S-386, School Block, Shakarpur,
New Delhi-110092. ....Appellant
VERSUS
Sh. Amit Kumar
Proprietor of M/s ARS Enterprises
Having its office at:
313, Gali no.2, Near Ishwar Mill Factory
Kapashera, New Delhi-110037. ...Respondent
Date of institution of the appeal : 05.02.2021
Date on which Judgment was reserved: 19.04.2024
Date of Decision : 27.05.2024
APPEAL UNDER ORDER XLI READ WITH SECTION 151
THE CODE OF CIVIL PROCEDURE, 1908 FOR SETTING
ASIDE THE JUDGMENT/DECREE DATED 04.03.2020
PASSED BY, LD. CIVIL JUDGE (EAST), KARKARDOOMA
COURTS, DELHI .
JUDGMENT
1. The present appeal has been preferred under Order XLI read withSection151oftheCodeofCivilProcedure,1908 (hereinafterrefe- rred to as "CPC") against the judgement/decree dated 04.03.2020 RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 1 of 30 passed by Ld. Civil Judge, Ms. Swayam Siddha Tripathy, East, Karkardooma Courts, in Civil Suit No. 9674/2016 whereby suit of the respondent/plaintiff was decreed in his favour. Therefore, the present appeal is filed by the appellant/ defendant seeking to set aside the judgment/decree dated 04.03.2020 of the Ld. Trial Court.
2. Succinctly stated, the case of the respondent/plaintiff as averred in the plaint before Ld. Trial Court in brief is that the plain- tiff is engaged in the business of construction and the defendant is a builder and a developer. The appellant/defendant contacted the plaintiff on the basis of the name and fame of the plaintiff in the construction business. Thereafter, the construction rate for the project namely Panacea New Rise Hospital at Gurgaon was set- tled, and an agreement was executed between both parties. The de- fendant assigned work to the plaintiff and the plaintiff carried out the work. The plaintiff raised four bills from time to time being runningbillsandthesaidbillsweredulyverifiedbythedefendant.After- the submission of the bills, part payment against the raised bills was received by the plaintiff. It is further submitted that the defen- dant confirmed the balance of the plaintiff and also confirmed the left out/remaining/balance amount due out of the running bills. It is further stated that the defendant in order to cheat the plaintiff as well as the government deducted a sum of Rs. 10,928/- towards TDS but issued only Form 26AS as proof of deposit of TDS of a sum of Rs. 3042/-. It is also stated that the plaintiff is entitled to re- cover a sum of Rs. 1,29,476/- as confirmation balance, Rs. 73,989/- as amount of the left out work and interest of Rs. 76,299/- with effect from 31.05.2014 totaling the amount to Rs. 2,79,764/- along with pendente lite and future interest @ 18% per annum.
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3. Summons of the suit were issued upon the appellant/defen- dant. The defendant contested the suit by filing written statement on 23.11.2016, wherein the defendant denied all the averments made by the respondent/plaintiff and raised a preliminary objec- tion that the suit is barred by limitation. It is also stated that the plaintiff left the work at the site on 31.05.2013 and after 17.09.2013, the plaintiff had no concern with the defendant and the plaintiff has also given in writing on 17.09.2013 that nothing is due against the defendant, therefore, the question of any payment to the plaintiff does not arise. It is also submitted that the plaintiff has procured false and fictitious documents in collusion with one Sh. Amresh Sinha who has left his job with the defendant and stole original documents from the office of the defendant. It is also stated that the defendant has deposited the TDS amounting to Rs. 3042/- as per payment made to the plaintiff and the same has been deposited as per rules of the Income Tax Department.
4. Vide order dated 09.05.2018, an application under Order 8 Rule 1A(2) and 1A(3) of CPC read with section 151 of CPC filed by the appellant/defendant to place on record additional docu- ments namely photocopies of five bills was dismissed by the Ld. Trial Court.
5. Vide judgement dated 04.03.2020, the Ld. Trial Court de- creed the suit in favour of the respondent/plaintiff and against the appellant/defendant for the recovery of a sum of Rs. 2,03,465.88/- along with pendente-lite and future interest at the rate of 9% per annum.
6. Feeling aggrieved, the appellant/ defendant filed the present appeal challenging the judgment/decree dated 04.03.2020 passed RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 3 of 30 by Ld. Civil Judge (East), Karkardooma Court, Delhi and prayed for setting aside of said judgment/decree on the following grounds:
(i) That the Ld. Trial Court wrongly decided the issue no. 3 pertaining to the limitation in favor of the respondent/plaintiff. Its onus has been wrongly placed upon the appellant/defendant whereas the onus to prove that the suit is within limitation is always upon the plaintiff. The plea of limitation is otherwise also a duty cast upon the court to decide irrespective of the objection taken by the defendant as per section 3 of the Limitation Act, 1963.
The Ld. Trial Court has decided this issue merely on the grounds that the last payment was made in October/November 2013. In this regard, the Ld. Trial Court failed to appreciate that payment was required to be made on bill-to-bill basis and there was no open mutual and current account between the parties. The plaintiff had failed to allege as to against which bill the suit amount was outstanding.
(ii) That the Ld. Trial Court has wrongly decided issue no. 1 in favour of the respondent/plaintiff and in the process has erroneously placed reliance upon the documents Ex PW-1/1 to PW-1/7 exhibited by the respondent. These documents were never proved in evidence by the plaintiff as per law as the author of the documents was not examined and mere exhibition of documents was not sufficient. It is submitted that since original documents were not produced at the time of examination in chief and cross- examination of PW-1, therefore, the documents, Ex PW-1/1 to PW-1/7, which are photocopies, could not have been relied upon by the Ld. Trial Court during adjudication of the present matter.
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(iii) That the appellant/defendant had relied upon documents exhibited DW-1/1 to DW-1/3 but during examination in chief, these documents were not allowed to be exhibited. These documents were duly proved by the defendant in evidence. These documents were filed along with written statement and no objection with respect to its veracity was raised by the respondent/plaintiff in the replication. As per the statement of account filed by the appellant/defendant, no amount was due from the appellant. Further at the time of accepting payment of Rs. 35,000/- the plaintiff had given in writing that this was full and final payment and nothing further was due from the appellant. No cross-examination was done with respect to the said documents and the deposition made in this regard, therefore, this part of the testimony of the appellant stood admitted by the respondent and therefore, no amount was due from the appellant because admittedly no work was done nor any bills were raised by the appellant after receipt of this payment.
(iv) That the Ld. Trial Court has failed to appreciate that no true statements of account were filed by the respondent/plaintiff nor were the entries therein proved in accordance with section 34 of the Indian Evidence Act, 1872, and unless all the entries in the statement of accounts are proved, no liability can be fastened upon the appellant/defendant.
(v) That the Ld. Trial Court has wrongly dismissed the application of appellant/defendant under Order VIII Rule 1A CPC vide order dated 09.05.2018 whereas the said application was liable to be allowed. In the documents filed along with written statement the entries relating to the bills are duly entered, and documents filed along with the written statement form an integral RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 5 of 30 part of the written statement, therefore, no further specific pleadings were required in the written statement. Further, evidence is not required to be pleaded in the pleadings. As the said order of dismissal of application of the defendant under Order VIII Rule 1A of CPC was not challenged, therefore, appellant is entitled to challenge the same now in view of section 105 of CPC.
(vi) That without prejudice to the contention of the appellant/defendant that no amount is payable by the appellant and the suit should be dismissed, the Ld. Trial Court has wrongly awarded interest @ 9% per annum on decreed amount which is on the higher side.
7. Notice of the appeal was served on respondent/plaintiff. The respondent contested the appeal without filing a reply to the ap- peal. The Trial Court Record (TCR) was summoned and carefully perused.
8. Arguments have been heard as addressed by Sh. Ramesh Kumar, Ld. Counsel for the appellant/defendant and Sh. V. K. Sharma, Ld. Counsel for the respondent/plaintiff. The written sub- missions were filed by both the appellant and respondent.
9. It is submitted by the Ld. Counsel for the appellant/defen- dant that irrespective of the onus of issue on limitation, it is always for the plaintiff to prove that the suit is within limitation, and as per section 3 of the Limitation Act, 1963, there is a duty cast upon the Court to consider the issue of limitation even in the absence of pleadings raised by the defendant. It is further submitted that the extension of the limitation period beyond the prescribed period has to be specifically pleaded by the plaintiff, which has not been done by the plaintiff in the present case. Therefore, the suit having been RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 6 of 30 filed on 02.08.2016 is beyond the prescribed time period reckoned from the date of the bills. It is also submitted that the plaintiff has not filed any statement of account to show the outstanding pay- ment and the document on page 159 of the documents relied upon by the plaintiff i.e. Ex. PW1/5 (colly) is not a statement of account but just a rough sheet prepared by the plaintiff showing the alleged payment received from the defendant. Therefore, in the absence of the statement of account from the plaintiff and in the light of aver- ment in para 4 of the plaint, payments were made on bill to bill ba- sis by the defendant to the plaintiff. It is further submitted that the payment of Rs. 35000/- made on 25.06.2013 has been admitted by the Appellant/defendant and there is no proof of payment made af- ter 25.06.2013, therefore, the limitation period has to run from 25.06.2013. It is also submitted that the plaintiff has not pleaded and proved mutual, open, and current account and rough sheet Ex. PW1/5 does not bring the case of the plaintiff under Article 1 of the Schedule to the Limitation Act, 1963. It is further submitted that the plaintiff pleaded that there are four running bills followed by a final bill, which was raised after 20.05.2014 and the alleged final bill has not been filed on record. Therefore, it cannot be said to be a case of running account. Thus, it was argued that it was a case of bill to bill payment and limitation will run from the date of the bill as per which suit filed on 02.08.2016 is time barred. It is further submitted that the plaintiff/respondent claimed that a sum of Rs.2,03,465.88/- is stated to be due from the appellant as per books of accounts, however, no statement of accounts has been filed by the respondent. From the bills filed on record by the plaintiff, it cannot be deciphered as to how much amount is due in respect of those bills. Respondent has stated that part payments have been re- RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 7 of 30 ceived for all bills but nothing has come on record as to how much payment has been received for each bill. In the statement of the amount received, Ex. PW1/5 filed by the plaintiff, there is no entry of- any of the bills in the said statement and no outstanding amount has been shown in the said statement. It is further submitted that the respondent has relied upon Form 26AS placed on page no.154 of documents filed along with the plaint. As per this statement, payment has been made of Rs. 97,125/- on 31/05/2013, Rs.1,21,212/- on 30.06.2013, Rs.50,506 on 30.06.2013 and Rs.35,354/- on 30.09.2013 but these amounts are not reflected in the statement of amount (Ex. PW1/5) received by respondent from the appellant. It is also submitted that bills placed on record by the plaintiff are per se only the rough sheets and these are not the bills recognized in law and cannot be termed as authenticated bills. The literary meaning of 'invoice' is that it is an authenticated document showing the name of the seller and buyer indicating goods sold or services rendered, the component of tax, and the amount payable against the same. It is further submitted that Respondent has relied upon the amount of Rs. 1,29,476/- as the amount confirmed by the appellant through email dated 20.05.2014. The said email has not been proved and exhibited. No certificate under section 65-B of the Indian Evidence Act has been filed and the author of the email has not been examined. On the issue of the amount of Rs.73,989/- claimed as the amount for the left out work, it is submitted that no details of the left out work have been mentioned in the plaint and no invoice for this work has been produced. Thus, no liability of the appellant has been proved by the respondent/plaintiff on the basis of his pleading and documents, therefore, the defendant is not liable to pay any amount to the respondent/plaintiff. Ld. Coun- RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 8 of 30 sel for the appellant/defendant placed reliance on the judgment of the Hon'ble Supreme Court of India in Harjit Singh Vs. Bharat Ho- tels Ld. & Ors. (MANU/DE/2172/2017) in support of his argu- ments that the account between the parties was not a mutual, open and running account.
10. Per Contra, Ld. Counsel for the respondent/plaintiff submit- ted that the appellant/defendant did not make payment on the bill- to-bill basis, rather the payment was made by the appellant/defen- dant at his convenience. It is also submitted that the defendant did not plead the aspect of the bill to bill payment in his written state- ment nor did he address any argument in this regard before the Ld. Trial Court. It is further submitted that the statement of account Ex. PW1/5 (colly) placed on record by the plaintiff clearly shows that there was a mutual, open and current account between the plaintiff and defendant. Therefore, in the present case in view of the last payment made by the defendant in September 2013, the limitation to file the present suit would start from the 1st April 2014 and would end on 31st March 2017 as per Article 1 of the Schedule to the Limitation Act, 1963. Therefore, the Ld. Trial Court has rightly decided the issue of the limitation in favour of the plaintiff. It is also contended by the Ld. Counsel for the respondent/plaintiff during the argument that in view of the admitted payment by way of cheque to the tune of Rs. 35,000/- in September 2013, the fresh period begins to run from the date of payment or date of cheque as per Section 18 or Section 19 of the Limitation Act, 1963. It is also submitted that the balance payment of Rs. 1,29,476.02 and pay- ment of left out work of Rs. 73,989/- was confirmed by email dated 20.05.2014 and 30.05.2014 respectively through the site engineer of the appellant/defendant. It is further submitted that the respon- RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 9 of 30 dent/plaintiff duly proved the documents filed along with the plaint as per law, whereas the appellant/defendant miserably failed to prove the documents filed along with the written statement as is evident from the examination in chief dated 20.09.2017 of defen- dant/DW1. It is also submitted that during the cross examination of the defendant/DW1, the defendant conceded to the claim of the plaintiff. Ld. Counsel for the respondent placed reliance on the or- der dated 23.02.2023 passed by the Ld. ADJ-03, Shahdara, KKD Courts, Delhi in Sunita Gupta vs. Mukesh Kumar (CS No. 374/2018); order dated 12.09.2023 passed by the Hon'ble High Court of Delhi in Mukesh Kumar vs. Sunita Gupta (C.R.P. 143/2023 & CM Appl. 28982/2023) and order dated 23.01.2024 of the Hon'ble Supreme Court of India in Mukesh Kumar vs. Sunita Gupta ( SLP (c ) 962/2024) and judgement of Hon'ble Supreme Court of India in State Bank of India vs. Krishidhan Seeds Private Limited (Civil Appeal No. 910/2021, DoD: 18.04.2022). It is thus prayed that the appeal being without merit be dismissed with cost.
11. Submissions made by Ld. Counsel for both the parties be- fore the Court have been considered and the record has been pe- rused carefully.
12. In the present appeal, the first issue that arises for consideration and determination is whether the Ld. Trial Court erred in deciding the issue of limitation in favour of the respondent/plaintiff.
13. As per Section 3 of the Limitation Act, 1963, the Court must see if a suit has been filed within time or it is barred by limitation even if no objection of limitation is raised by parties to the suit. The initial burden of proving that the plaint has been filed within RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 10 of 30 time rests upon the plaintiff. However, later on, the burden may shift to the defendant once the plaintiff discharges the initial burden by showing that the suit has been filed within the prescribed limitation period.
14. In the present case, the respondent/plaintiff made averment in the plaint that the present suit was within the limitation period prescribed under the law as a payment by way of cheque no. 342993 to the tune of Rs. 35,000/- was made on 19.09.2013 by the appellant/defendant and thereafter a sum of Rs. 40,000/- was paid through bearer cheque in the month of October-November 2013 by the defendant.
15. The appellant/defendant challenged the pleas of the respondent/plaintiff on the ground that the payment of the bills was required to be made on bill-to-bill basis and there was no mutual, open and current account between the parties. It is further contended by the appellant/defendant that the respondent/plaintiff failed to specify against which bill the payment is pending. The contention of the payment being made by the defendant to the plaintiff on bill to bill basis was not raised by the defendant before the Ld. Trial Court but was raised in appeal for the first time.
16. The respondent/plaintiff contested this ground of the appeal by arguing that there was a mutual, open, and current account between the plaintiff and the defendant and therefore, the limitation period for filing the suit begins to run from 01.04.2014 i.e. close of year in which the last item admitted or proved is entered in the account; such year to be computed as in the account as per Article 1 of the Schedule to the Limitation Act, 1963.
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17. The question now arises as to whether the transaction between the parties and the account maintained pursuant thereto can be said to be mutual, open and current, which calls for applicability of Article 1 of the Schedule to the Limitation Act, 1963.
18. In this regard, the judgment of the Hon'ble Supreme Court of India in the case Bharath Skins Corporation v. Taneja Skins Company Pvt. Ltd.,186 (2012) DLT 290 (DB) is relevant to note, wherein the Hon'ble Supreme Court relying upon the larger bench judgment of the same Court in AIR 1959 SC 1349 Hindustan Forest Company v Lal Chand, laid down that the requirement of reciprocal demand involves transaction on each side creating independent obligation on the other and not merely transaction which create obligation on one side. The relevant extract of the judgment is reproduced as under:
"13. From the aforesaid observations, it can be deduced that for the creation of an open, current and mutual account, there must be an intention between the parties, either express or implied, which may be deducible from the course of dealings to have mutual dealings, creating reciprocal obligations, independent of each other. A 'demand' in relation to a matter of account means a 'claim for money', arising out of a 'contractual business relationship' between the parties. Where the dealings between the parties disclose a 'single' contractual relationship, there will be demands only in favour of one party. For instance, where the relationship between 'A' and 'B' is that of lender and borrower respectively, 'A' will have a 'demand' against 'B' in respect of every item of loan advanced. But 'B' can have no demand against 'A'. Where the dealings between the parties disclose 'two' contractual relationships, there will arise demands in favour of each side against the other. For instance, where 'A' advances money to 'B' from time to time as loan, and 'B' engages 'A' as his agent for the sale of goods sent by 'B', there are two contractual relationships between the parties: one, that of lender and borrower and the other, that of principal and agent. 'A' RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 12 of 30 as creditor may have several demands against 'B' who as principal may have, independently, several demands against 'A'. The real test, therefore, to see whether there have been reciprocal demands in any particular case is to see: Whether there is a 'dual contractual relationship' between the parties.
14. Where 'A' sells goods to 'B' from time-to-time and 'B' makes payments towards the price from time-to- time, there is only a 'single' contractual relationship, namely that of buyer and seller, between the parties. 'A' has demands against 'B' for items sold, but 'B' can have no 'demands' against ' A'. Such case is not one of reciprocal demands and thus Article 85 of the Schedule to the Indian Limitation Act, 1908 corresponding to Article 1 of the Schedule to the Limitation Act, 1963 will not apply to suits on such accounts.
........................"
19. In the present case, the aforesaid ingredient is not satisfied as the relationship is singular wherein the plaintiff is the contractor for the work assigned by the defendant, and for the work performed by the plaintiff, the defendant is obliged to make payment to the plaintiff. In other words, it is a simple case of debtor and creditor and not a case of mutual obligation. The document Ex. PW1/5 placed on record does not show that it was a mutual, open, and current account as it reflects one sided obligation on the part of the defendant to make payment to the plaintiff. Further, there was no pleading on the part of the plaintiff that the said account between the plaintiff and defendant was mutual, open and current. Therefore, the Court agrees with the appellant/defendant that there was no mutual, open and current account between the plaintiff and defendant. Thus, the respondent/plaintiff cannot rely on Article 1 of the Schedule to the Limitation Act, 1963 to support his case of the plaint being filed within the prescribed time period.
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20. Having decided that there was no mutual, open and current account between the parties, the Court shall now revert to the sec- ond limb of the argument raised by the respondent/plaintiff to con- tend that the suit is not time barred. It is contended by the respon- dent/plaintiff during oral argument that in view of the payment of Rs. 35,000/- made by the appellant/defendant to the respondent/ plaintiff by way of cheque in September 2013 which has been ad- mitted by the defendant, the fresh period begins to run from the date of payment or date of cheque as per Section 18 or Section 19 of the Limitation Act, 1963. However, it is contended by the appel- lant/defendant in his argument that there is no proof of any pay- ment made by the defendant to the plaintiff after 25.06.2013 on which date a payment of Rs. 35000/- was made by the defendant to the plaintiff, therefore, the limitation period has to run from 25.06.2013. In this connection, it is pertinent to refer to the docu- ments namely Form-16A (Mark A), the ledger statement (Mark B) and the undertaking dated 17.09.2013 (Mark C) which have been relied upon by the defendant in his evidence. The said documents unequivocally point to a payment of Rs. 35,000/- made by the de- fendant to the plaintiff in the month of September 2013. The Form- 16A (Mark A) shows the transaction date of Rs. 35000/- as 30.09.2013, the ledger statement (Mark B) shows the payment date of Rs. 35000/- as 21.09.2013 and the alleged undertaking dated 17.09.2013 talks about final payment of rupees thirty five thousand to the plaintiff by the defendant. Further, in his cross-ex- amination, the defendant/DW1 when questioned about the pay- ment of Rs. 35000/- by way of cheque bearing number 342993, de- posed that he had no idea about cheque number but he made a pay- ment of Rs. 35000/- to the plaintiff. Therefore, the defendant did RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 14 of 30 not deny the payment of Rs. 35,000/- by way of cheque bearing number 342993, which is reflected in the statement of payment re- ceived by the plaintiff from the defendant Ex. PW1/5 on 19.09.2013. In view of this, the contention of the appellant about no proof of the payment by the plaintiff to the defendant after 25.06.2013 is not tenable and it is established that the defendant made a payment of Rs. 35000/- to the plaintiff in September, 2013.
21. Now, considering the invoices Ex. PW1/2 to Ex. PW1/4 raised by the respondent/plaintiff along with documents detailing the payment received by the plaintiff from the appellant/defendant i.e. Ex. PW1/5, it is clear that the plaintiff has raised invoices for a total amount of Rs. 10,92,804/- and total payment received by the plaintiff from the defendant is Rs. 9,52,000/-. Therefore, as per the documents adduced in evidence by the plaintiff, there was an outstanding payment of Rs. 1,40,804/- due from the defendant to the plaintiff, and from the said documents, it is also evident that payment was due from the appellant/defendant towards the plaintiff at the time of making payment of Rs. 35000/- by way of cheque in September 2013. Furthermore, the respondent/plaintiff by adducing in evidence the aforesaid documents have established that the payments of the invoices made by the defendant to the plaintiff were not on bill-to-bill basis. Now the onus was on the defendant to prove the said payments were on bill to bill basis. However, the defendant failed to establish the same be any cogent and credible evidence.
22. It is to be noted that appellant/defendant in his evidence relied on the ledger statement Mark B. As per the said ledger statement, the total payment that was made to the RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 15 of 30 respondent/plaintiff was Rs. 5,48,042/- including TDS payment. However, the defendant in his cross-examination conducted on 01.08.2018 deposed that he had paid a total amount of Rs. 4,95,000/- approximately including the amount of Rs. 2,43,846.37/-. It is not explained by the defendant as to why he made a payment of Rs. 4,95,000/- when as per ledger statement, Mark B, the total amount paid to the plaintiff is shown as Rs. 5,48,042/-. Further, Form-16A relied upon in defendant's evidence as Mark A, shows that the TDS deducted/deposited by the defendant is Rs. 3042/- which does not amount to 1% of either Rs. 4,95,000/- which the defendant stated in his cross-examination to have been paid to the plaintiff or of Rs. 5,48,042/- which the defendant as per the ledger statement, Mark B claimed to have paid to the plaintiff. No other Form 16A was filed by the defendant on record. In view of this, the evidence produced by the defendant including the ledger statement Mark B is not credible and does not establish that the defendant made the entire payment to the plaintiff and nothing remains to be paid to the plaintiff. Further, the defendant failed to adduce any evidence to establish that payment was required to be made by the defendant to the plaintiff on bill to bill basis. In fact, there was no pleading to this effect in the written statement. Therefore, it is not established that there was bill to bill payment made by the appellant/defendant to the respondent/plaintiff.
23. Further, as per documents filed on record by both parties, it is established that a payment of Rs. 35,000/- was made by cheque by the defendant to the plaintiff in the month of September 2013. Therefore, the payment of Rs. 35000/- by way of the cheque was part payment on account of debt owed by the defendant to the RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 16 of 30 plaintiff as per Section 19 of the Limitation Act, 1963, which states that where payment on account of debt is made before the expiration of the prescribed period by the person liable to pay the debt, a fresh period of limitation shall be computed from the time when the payment was made, provided an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
24. In this connection, we may also refer to the decision of the Hon'ble High Court of Delhi in Empire Home Appliances Private Limited vs M/S Suraj Enterprises reported in 2016 SCC OnLine Del 3954, (dated 3rd May 2016 in R.F.A.No.208 of 2016) , the Hon'ble Court quoted with approval the decision of the full bench of Hon'ble High Court of Gujarat in Hindustan Apparel Industries Vs. Fair Deal Corporation AIR 2000 Guj 261, as follows:
24. The Full Bench of High Court of Gujarat also in Hindustan Apparel Industries Vs. Fair Deal Corporation AIR 2000 Guj 261 was concerned with "whether the payment by cheque which is dishonoured amounts to acknowledgment of a debt or liability". It was held i) that a statement in the form of a cheque will obviously amount to acknowledgment in writing withing the meaning of Section 18 of the Limitation Act; ii) it is the stage of issuance of the cheque that there surfaces an intention on the part of the drawer to acknowledge the liability / debt owing to the person in whose favour the cheque is issued; iii) in case the cheque is honoured, it would amount to part payment in writing within the meaning of Section 19 of the Limitation Act; iv) however even if the cheque is dishonoured, it would still be an acknowledgment in writing of the debt within the meaning of Section 18 of the Act.
25. In view of the aforesaid decision, it is clear that the part payment by cheque on account of a debt, satisfies all the RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 17 of 30 ingredients of Section 19 of the Limitation Act, 1963, therefore, in the present case, on account of part payment of Rs. 35,000/- by way of cheque in September 2013 by the defendant, a fresh period of the limitation commenced from the date of payment which, as per the statement of entries of payment received by the plaintiff from the defendant Ex. PW1/5 (colly) is 19.09.2013, as per Form16A (Mark A) and ledger statement (Mark B) relied on in evidence by the defendant is 30.09.2013 and. 21.09.2013 respectively. Therefore, by any of the aforesaid dates of payment which is considered, the suit of the plaintiff filed on 02.08.2016 falls within the period of limitation as per Section 19 of the Limitation Act, 1963. The plea of the suit filed within the prescribed period of limitation on the basis of the said payment was also taken by the plaintiff in his plaint and therefore, the contention of the appellant/defendant that the respondent/plaintiff failed to plead the extension of the limitation of period beyond the prescribed period is baseless. In view of this, it is held that the suit in the present matter filed on 02.08.2016 is within the prescribed period of limitation and therefore, the ground of appeal that the suit of the plaintiff is time-barred is not maintainable.
26. The second issue that arises for consideration and determination is whether the Ld. Trial Court has erred in decreeing the suit in favour of the plaintiff for recovery of Rs. 2,03,465.88/-
alongwith interest.
27. This issue also involves consideration of other grounds of appeal such as whether the respondent/plaintiff has not proved in evidence documents filed along with the plaint as per the Indian Evidence Act, 1872 as well as whether the appellant/defendant RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 18 of 30 duly proved the documents as filed along with the written statement. This issue also involved consideration of whether the documents containing the details of the payments received by the plaintiff from the defendant marked as Ex. PW1/5 (colly) were proved in accordance with section 34 of the Indian Evidence Act, 1872, in order to fasten liability upon the appellant/defendant.
28. As regards the objection of the appellant that the respondent/plaintiff has not proved the documents filed along with the plaint as per the Indian Evidence Act, 1872 as the same were photocopies, the examination in chief of PW1 dated 19.07.2017 does not reveal that at the time of tendering the documents filed along with the plaintiff in evidence as Ex. PW1/1 to Ex. PW1/7, any objection was raised as to the mode of proof of these documents by the appellant/defendant. It is a settled legal position that the objection with regard to the mode and manner of proof of a document has to be raised at the time of marking/exhibition of the document and in case of failure on the part of the opposite party to raise any such objection, he/she is precluded to raise it at the later stage. In this regard, it is pertinent to rely upon the judgment of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, wherein the Hon'ble Supreme Court has laid down the following salutary principle which has been followed in catena of judgments.
"21. The Privy Council in Padman v. Hanwanta [AIR 1915 PC 111 : 19 CWN 929] did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: (AIR p. 112) "The defendants have now appealed to His Majesty-in- Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 19 of 30 a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention."
22. Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S. Perumal [(1972) 1 SCC 9 :
(1972) 2 SCR 646] . In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: (SCC p. 15, para 19) "19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility --
see Bhagat Ram v. Khetu Ram [AIR 1929 PC 110] ."
23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced.
24. So is the observation of the High Court that the photocopy of the rent note was not readable. The photocopy was admitted in evidence, as already stated. It was read by the trial court as also by the first appellate court. None of the said two courts appear to have felt any difficulty in reading the document and understanding and appreciating its contents. Maybe, that the copy had fainted by the time the matter came up for hearing before the High Court. The High Court, if it felt any difficulty in comfortable reading of the document then should have said so at the time of hearing and afforded the parties an opportunity of either producing the original or a readable copy of the document. Nothing as such was done. The High Court has not even doubted the factum of the contents of the document having been read by the two RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 20 of 30 courts below, drawn deductions therefrom and based their finding of fact on this document as well. All that the High Court has said is that the document was inadmissible in evidence being a photocopy and with that view we have already expressed our disagreement. Nothing, therefore, turns on the observation of the High Court that the document was not readable when the matter came up for hearing before it.
29. The requirement of raising an objection at the time of marking/exhibition of the document is essential as that would apprise the party to take corrective steps to prove the particular document regarding which the objection may have been raised and, therefore, in the absence of no objection, other party would be given an impression that the opposite party has no objection regarding the admissibility of documents in evidence.
30. In light of the aforesaid position, since on behalf of the appellant/defendant, at the time of tendering of copy of the agreement, copy of four running bills, copy of details of the payment received from the defendant, copy of legal notice dated 01.07.2016 in evidence and marking the same as Ex.PW1/1 to Ex. PW1/7, no objection was taken as to the mode and manner of proof of these documents, therefore, at the stage of final arguments or appeal, this objection as to the mode of proof of said documents cannot be permitted to be raised. Thus, it cannot be said that the documents marked as Ex. PW1/1 to Ex. PW1/7 cannot be read in evidence. Therefore, this ground of appeal to challenge the judgement/decree dated 04.03.2020 is not maintainable.
31. As regards the objection whether the appellant/defendant duly proved the documents as filed along with the written statement, it is pertinent to note here that the documents filed by the defendant along with written statement were marked as Ex. RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 21 of 30 DW1/1 to Ex. DW1/3 in the evidence by way of affidavit Ex. DW1/A, however, during the examination in chief of DW1 dated 20.09.2017, the said documents were de-exhibited and marked as Mark A, Mark B, and Mark C. Therefore, it is evident that during the examination of chief of DW1, there was an objection as to the exhibition of the document filed along with the written statement in evidence, therefore, the defendant was required to prove the said documents as per Indian Evidence Act, 1872 which has not been done, therefore, it cannot be said that the said documents relied upon by the defendant have been duly proved in evidence as per law. Therefore, this ground of appeal to challenge the judgement/decree dated 04.03.2020 is also not maintainable.
32. As regards the objection of the appellant/defendant that the document containing entries of the payment received by the respondent/plaintiff from the defendant Ex. PW1/5 (colly) has not been proved as per section 34 of the Indian Evidence Act, 1872, these entries Ex. PW1/5 are relevant to show the liability of the defendant as well as to show that the payment was not made by the defendant on a bill-to-bill basis. Further, these entries coupled with the invoices raised by the plaintiff Ex. PW1/2 to Ex. PW1/4 and admission by the defendant in his cross examination of the rates of assigned work as mentioned in Ex. PW1/1, of the measurement displayed in invoice Ex. PW1/2, of the calculation and measurement displayed in Ex. PW1/3, that page no. 20 of Ex. PW1/3 bears the signature of the defendant's supervisor Mr. Amresh and that page 150 of the documents filed by the plaintiff bears the signature of the defendant's engineer in charge at point A, and admission of the signature of his supervisor Sh. Amresh at point A in Ex. PW1/4 makes a case of liability of the defendant to RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 22 of 30 pay the outstanding amount to the plaintiff and shifts the onus on the defendant to prove that the defendant had no liability towards the plaintiff. The defendant failed to discharge the said onus with any cogent and credible evidence. The defendant admitted in his cross-examination that he had not made any payment to the plaintiff in cash. However, the defendant failed to place on record his bank statement with respect to the payment made by him to the plaintiff. The defendant also admitted that he has maintained a balance sheet pertaining to the job assigned to the plaintiff and the said balance sheet has details of the payment made to the plaintiff, however, the same has not been brought in evidence by the defendant.
33. The evidence that the defendant sought to lead by way of documents marked as Mark A to Mark C in fact contradicts the stand of the defendant about no payment being due to the plaintiff because as per the ledger statement, Mark B, the total payment that was made to the plaintiff was Rs. 5,48,042/- including TDS payment, whereas, in his cross-examination conducted on 01.08.2018, defendant deposed that he had paid total amount of Rs. 4,95,000/-. Further, Form-16A, Mark A suggests even lesser payment being made to the plaintiff as the TDS of only Rs. 3042 was deposited with the income tax department.
34. Thus, considering the entire documents placed on record, and admission made by the defendant in his cross examination as well as the lack of cogent and credible evidence on the part of the defendant to prove that the defendant has no liability towards the plaintiff, the plea of the appellant/defendant, that the document Ex. PW1/5 cannot be relied upon by the Court to fasten liability on the appellant/defendant towards the outstanding payment due to the RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 23 of 30 plaintiff, is futile. Therefore, this ground of appeal to challenge the judgement/decree dated 04.03.2020 is not maintainable.
35. As regards the contention of the appellant/defendant that payment made by the plaintiff to the defendant as per Form 26AS placed on record on page no.154 by the respondent/plaintiff, are not reflected in the statement of the amount received by the re- spondent/plaintiff from appellant/defendant placed at page no.159 Ex. PW1/5, suffice it to say that the said Form 26AS has been placed on record by the respondent/plaintiff in support of his aver- ment that although the appellant/defendant deducted a TDS of Rs. 10,928/-, the appellant/defendant issued Form 26AS being proof of deposit of only a sum of Rs. 3042/-. It is not the case of the plaintiff that all four payments as reflected on the transaction dates in Form 26AS were made on the said dates in their entirety except the payment of Rs. 35,000/- admittedly paid in the month of Sep- tember 2013. Hence, the objection is without any merit.
36. Further, so far as the contention of the appellant/defendant that the bills placed on record by the plaintiff are not authenticated bills and are only rough sheets, no such objection was raised by the defendant before the Ld. Trial Court. Further, it is seen that during cross-examination the defendant admitted documents Ex. PW1/3 and Ex. PW1/4 of these bills bear the signature of his supervisor Sh. Amresh, and that said Sh. Amresh was working with the defen- dant during the relevant period when the bills were issued. Now, therefore, at this stage, the defendant cannot escape his liability by saying that the bills are not authenticated documents and are merely rough sheets. Hence, the objection is also without any merit.
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37. Now coming to the issue of whether the Ld. Trial Court erred in decreeing the present suit in favour of the plaintiff for Rs. 2,03,465.88/- alongwith interest. Considering the above discussion, it is evident that for the work performed by the respondent/plaintiff, the plaintiff raised invoices for the total billed amount of Rs. 10,92,804/- and as per the statement containing entries of the payment received Ex. PW1/5, the plaintiff received Rs. 9,52,000/- from the appellant/defendant. Further, through effective cross-examination of the defendant as well as through the documents placed on record by the defendant, it is established that the defendant did not make the entire payment owed to the plaintiff. Therefore, the onus was on the defendant to prove by cogent and credible evidence that he had made the entire payment for the work performed by the plaintiff. In his cross examination, the defendant deposed that he did not pay anything to the plaintiff in cash. It suggests that all the payment was made by cheque. However, the defendant did not produce his statement of account to corroborate the said payment. The defendant during cross examination of the plaintiff/PW-1 gave a suggestion that the defendant had deducted the complete TDS to the tune of Rs. 3042/- against the entire payment made to the plaintiff. Admittedly the defendant deducted TDS at the rate of 1% of the total payment made to the plaintiff. It means the total payment made by the defendant to the plaintiff is only Rs. 3,04,200/- which is in complete contradiction to the deposition of the defendant in the cross examination where he deposed that he made a payment of Rs. 4,95,000/- to the plaintiff as well as the in contradiction with the ledger statement Mark B relied upon by the defendant which reflects that the total payment of 5,48,042/- including TDS RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 25 of 30 payment. The defendant during cross examination of the plaintiff/PW-1 gave another suggestion that the defendant used to make payment to the plaintiff there and then for whatever work that was carried out by the plaintiff. The said suggestion again contradicts the stand taken by the appellant/defendant that the payment was made bill to bill after the plaintiff raised the bills.
38. Further, the defendant has been evasive in his replies in his cross examination, wherein he deposed that the bills raised by the plaintiff are not traceable; that he does not remember whether the payment of Rs. 2,43,846/- was made to the plaintiff in once or in parts; that he does not remember the date and month when Mr. Amresh left the job from his employment; that the original undertaking dated 17.09.2013 given by the plaintiff were stolen from his office; that the theft took place in the year 2013 but he does not remember the date and month and no FIR was placed on record regarding theft in his office; and that he cannot tell whether he issued any self cheque to the plaintiff.
39. Therefore, on the balance of probabilities, it is established that the respondent/plaintiff raised four bills amounting to Rs. 10,92,804/- and the plaintiff received payment of Rs. 9,52,000/- from the defendant. Therefore, the balance payment that remains to be paid by the appellant/defendant is Rs. 1,40,804/-. From the Rs. 1,40,804/-, TDS payment of Rs. 3042/- admittedly deposited by the defendant with the income tax department is subtracted to arrive at the final amount due to the plaintiff which comes out to be Rs. 1,37.762/-.
40. In this connection, it is important to note that the bills for the left out work amounting to Rs. 73,989/- were not proved in RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 26 of 30 evidence by the respondent/plaintiff because neither the evidence by way of affidavit filed by the plaintiff Ex. PW1/A mentions invoices for the left out work nor the said invoices were exhibited during evidence. Further, the defendant has also not admitted the same. The defendant admitted the signature of his engineer in charge on page 150 of the documents filed on record by the plaintiff, however, it is not clear how the amount of left-out work was calculated. The confirmation emails dated 20.05.2014 filed by the plaintiff cannot be admitted in evidence for lack of certificate under section 65B of the Indian Evidence Act, 1872. Moreover, in the said emails, no amount for the left out work was mentioned and there is no confirmation of the left out work in said email. In view of this, the claim of the plaintiff of Rs. 73,989/- for outstanding payment for the left out work is not established.
41. The third issue that arises for consideration and determination is whether the Ld. Trial Court was justified in dismissing the application under Order VIII Rule 1A CPC filed by the appellant/defendant for placing on record additional documents, vide order dated 09.05.2018:
42. It is seen that the vide application under Order VIII Rule 1A(2) and 1A(3) of CPC, the appellant/defendant sought the leave of the Ld. Trial Court to place on record photocopies of five bills dated 31.03.2013, 29.04.2013, 07.05.2013, 27.06.2013 and 21.09.2013. It is pleaded by the defendant before the Ld. Trial Court that at the time of filing of the written statement said bills were not traceable and, therefore, could not be filed with the written statement, and ultimately one copy of the said bills were found with his Chartered Accountant (CA) on 23.10.2017.
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43. Perusal of the record shows that there is not even a whisper about the said five bills in the written statement filed by the defendant. Even if the aforesaid bills were not traceable at the time of filing the written statement, the least the defendant could have done was to aver in his pleadings that the plaintiff raised five bills for the work performed by the plaintiff. In paragraph 4 of the written statement, the defendant denied that the plaintiff raised four bills from time to time being running bills. However, the defendant failed to aver then that the plaintiff raised any bill for the work performed by the plaintiff. In evidence by way of affidavit Ex. DW1/A filed on 23.08.2017, the defendant deposed about four bills being raised by the plaintiff. The said affidavit was filed before the alleged discovery of the aforesaid five bills with the CA of the defendant. However, it has not been explained by the defendant as to why there was no such pleading about the four bills in the written statement. In evidence by way of affidavit Ex. DW1/A, the defendant mentions about raising of four bills by the plaintiff, and vide the application under Order VIII Rule 1A, the defendant sought to place on record five bills. There is no explanation about the fifth bill which was neither part of the pleadings nor was mentioned in the evidence by way of the affidavit Ex. DW1/A.
44. Furthermore, the documents that were filed with the written statement i.e. Form 16A, Ledger account, and undertaking dated 07.09.2013 do not in any way explain that the plaintiff raised five bills for the work performed by the plaintiff and the defendant cannot be permitted to lead any evidence which is beyond pleading in the written statement.
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45. In view of the aforesaid discussion, the Ld. Trial Court was justified in dismissing the application of the defendant under Order VIII Rule 1A of CPC and the same does not require any interference from this Court.
46. The fourth issue that arises for consideration and determination is whether the Ld. Trial Court was justified in granting an interest rate 9% per annum on the decretal amount
47. In view of the aforesaid discussion, the respondent/plaintiff is entitled to recovery of a sum of Rs. 1,37,762/- (Rupees One Lakh Thirty Seven Thousand Seven Hundred and Sixty Two Only) from the appellant/defendant. As far as the payment of interest on the said amount of Rs. 1,37,762/- is concerned, the Ld. Trial Court awarded interest at the rate of 9 percent per annum. It is seen that the plaintiff had prayed for interest at the rate of 18% per annum in the plaint, however, the Ld. Trial Court awarded interest at the rate of 9% per annum on the decretal amount considering that the interest rate of 18% per annum was unconscionably high. However, keeping in mind the prevailing rate of interest and nature of the transaction as well as in view of the mandate of section 34 of CPC, the Court is inclined to modify the rate of interest awarded by Ld. Trial Court. Therefore, the plaintiff is awarded reasonable pendent lite interest and future interest at the rate of 7% per annum only.
48. Therefore, the respondent/plaintiff is awarded a reasonable simple interest @ 7% per annum on the amount of Rs. 1,37,762/- from the date of institution of the suit till realization of the amount.
49. In the light of aforesaid discussion, the present appeal against the judgment/decree dated 04.03.2020 of Ld. Civil Judge, RCA No.05/21 Varun Veer Singh Vs. Amit Kumar Page No. 29 of 30 East District, Karkardooma Courts is partly allowed and the impugned decree is modified to the extent that the plaintiff (respondent herein) is entitled to recovery of a sum of Rs. 1,37,762/- (Rupees One Lakh Thirty Seven Thousand Seven Hundred and Sixty Two Only) from the defendant (appellant herein) along with a simple interest @ 7% p.a. from the date of institution of the suit till realization of the amount.
50. No order as to cost.
51. The appeal stands disposed of accordingly
52. A decree sheet be prepared accordingly.
53. Copy of this judgment along with Trial Court Record be sent back to the Ld. Trial Court for information.
54. Appeal file be consigned to record room after due compliance.
Digitally signed by SOMITRAPronounced in the open court SOMITRA KUMAR
KUMAR Date:
on 27th day of May, 2024. 2024.05.27
16:51:27 +0530
(SOMITRA KUMAR)
DJ-06,EAST/KKD COURTS,
Delhi/27.05.2024
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