Delhi District Court
Sandeep Arya vs Anil Gupta on 20 December, 2022
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KKD, DELHI
CS Comm. No. 319/2021
Sandeep Arya
Proprietor M/s Surya Enterprises,
293, Khasra No.561, Karkardooma
Near Petrol Pump, Vikas Marg, Delhi-110092. ....Plaintiff
Vs.
Anil Gupta
Proprietor M/s Mahashakti Impex
C-328, Second Floor, Yojna Vihar,
Delhi-110092. ....Defendant
Date of Institution : 03.09.2021
Date of Final Arguments : 20.12.2022
Date of Judgment : 20.12.2022
Decision : Decreed
Judgment
1.This suit has been filed by the plaintiff for recovery of Rs.15.50 lacs along with interest @ 24% per annum.
Case of the Plaintiff
2. Case of the plaintiff as per plaint and the evidence led is that he is proprietor of M/s Surya Enterprises while defendant is proprietor of M/s Mahashakti Impex. Defendant is in the business of import of consummable items. In the course of business plaintiff placed an order on 13.05.2020 for purchase of 1000 pieces of Hand Sanitizer Machines @ Rs.3500 per piece inclusive of GST. It was agreed between the parties that the machines would be delivered between 10.06.2020 to 15.06.2020 and the time shall be essence of the agreement. As per the oral agreement defendant was paid a sum of Rs.14 lacs by way of an account payee CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 1 cheque no. 081047 dated 13.05.2020 drawn on Central Bank of India, Karkardooma as an advance.
3. Even though the above cheque was duly credited in the account of the defendant, no Hand Sanitizer Machines, as ordered, were supplied within the agreed scheduled period and rather no supply was ever made till the filing of the suit in September 2021. As such according to the plaintiff he is entitled to refund of his advance amount of Rs.14 lacs along with 24% interest per annum with effect from 13.05.2020 onwards. Plaintiff issued a legal demand notice on 14.10.2020 but the same was neither replied nor complied. Plaintiff took recourse to Pre-Institution Mediation under Section 12A of the Commercial Courts Act, 2015 but despite attempts the same it could not yield any result. As such the suit in hand was filed.
4. Summons of the suit was served upon the defendant on 18.10.2021 and Ld. Counsel for defendant entered appearance on 20.11.2021 and filed detailed WS.
Defendant's Case
5. Case of the defendant as per WS and the evidence led is that plaintiff has no locus standi to file this case in so far as it is without cause of action and is based on concocted and frivolous facts. As per the defendant, plaintiff did place an order for purchase of 1,000 sanitizer machines @ Rs.3500 per piece inclusive of GST on 13.05.2020. It is also accepted that the delivery period was agreed to be 10.06.2020 to 15.06.2020 (wrongly typed in WS as 10.06.2016 to 15.06.2016) and that advance payment of Rs.14 lacs was paid to the defendant.
6. As per the WS on the dates 11.06.2020 to 15.06.2020 defendant contacted the plaintiff on numerous occasions to intimate that the consignment is ready for delivery but the plaintiff kept on delaying receipt of the same on CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 2 one or the other pretext and did not take the delivery. Defendant later on came to know that the price of sanitizer machines had fallen down and that perhaps it was the reason behind plaintiff's not taking the delivery. The failure of plaintiff to receive the delivery gave a bad name to the defendant in the market.
7. In this backdrop, on the persuasion of the defendant, the plaintiff agreed to purchase Infrared Thermometers in place of Hand Sanitizer Machines. Accordingly, order of supply of 570 pieces of Infrared Thermometers @ Rs. 2250/- per piece equivalent to Rs.15,13,350/- was made. A bill was raised in this regard on 23.06.2020 and the delivery also took place on 23.06.2020 as per e-way bill of the even date.
8. Upon adjustment of earlier received Rs.14 lacs the plaintiff was supposed to pay the difference amount of Rs.1,13,350/- to the defendant. When the defendant asked for difference in payment, no payment was made by the plaintiff. On merits, defendant denied that there was any failure on their part to deliver the hand sanitizers. Defendant has denied that he is liable to pay book Rs.14 lacs as prayed.
Replication
9. Separate replication was filed on behalf of plaintiff wherein he reiterated the pleaded case and denied the claim of the defendant. Plaintiff specifically denied that defendant approached them between 11.06.2020 to 15.06.2020 to inform that the hand sanitizer consignment is ready or that plaintiff did not receive the machines deliberately. It is also denied that plaintiff raised an order of 570 pieces Infrared Thermometers as claimed or that the delivery of the same was received as detailed in the WS. It is denied that plaintiff owe Rs.1,13,350/- to the defendant. In the affidavit of admission and denial of documents defendant had admitted CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 3 the statement of bank account dated 13.05.2022 and Whatsapp screenshot dated 13.05.2021 and had has denied the legal demand notice and its tracking report. Even though the specific documents were filed by the defendant, neither the replication was supported with statement of truth nor affidavit of admission and denial of documents.
10.Upon Completion of pleadings, following issues were identified by this Court vide order dated 26.09.2022:
Issues i. Whether the plaintiff is entitled to recover Rs. 15.50 lacs alongwith interest @ 24% per annum?(OPP) ii. Whether defendant has supplied goods worth Rs.15,13,350/- to the plaintiff on 23.06.2022? (OPD) iii. Relief
11. In terms of Order 18 Rule 4 CPC and Order 15A Rule 6(1) CPC evi- dence in this case was recorded through a Local Commissioner appointed by this Court for the sake of timely disposal of this case. For ready refer- ence the protocol designed by this Court for recording of Evidence through the LC is reproduced hereunder:
"Protocol for Recording of Evidence before Court Commissioner appointed by Commercial Court, 2022"
Part - 1 Preliminary
1. Short title- These Protocol is titled protocol for "Recording of Evidence before Court Commissioner 2022 appointed by Commercial Court".
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l) CPC as applicable to Commercial Court.
3. Court- Whenever the term 'Court' appears in this Protocol it should refer to Commercial Court as defined under Section 2(b) of Commercial Court Act 2015.
CS Comm. No. 319/2021Sandeep Arya Vs. Anil Gupta page 4
Part - 2
Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases can be carried out by the Court Commissioner, as the case may be.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing when the issues are identified, the Court can pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of issues, appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to the parties as well as the Court Commissioner.
Part - 3 Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not later than 15 days of identification of issues before the Court while sharing an advanced copy thereof with the opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, Court can pass an Order covering following aspects:
Schedule of evidence- Recording of evidence shall start within three weeks of identification of issues. Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for recording of evidence, if needed, shall be decided by the Court Commissioner as per convenience of all concerned, as far as possible. However, entire evidence shall be concluded within eight weeks of initiation. Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evidence by Ld. Court Commissioner.
Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be supplied to opposite party preferably one week in advance. However, no adjournment shall be granted in case of non- supply of advance copy.
Production of documents for cross-examination- In case the opposite side is desirous of production of any document by the witness or any other entity for the purpose of cross-examination, an application requesting the same shall be moved well in advance before the Court.
Part - 4 Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner-
Place and Time- Court Commissioner shall record evidence either in Lawyer's chamber, or Judges/Bar Library, Court Room or any other public place within the Court Complex as mutually agreed by all concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM. It can carry on beyond 5.00 PM as well in case both parties agree. It can be recorded even on a holiday if all the stakeholders are comfortable and agree to the same.
Chronology of recording- Court Commissioner shall proceed to record the examination by first recording the deposition of litigating party before examining additional summoned witnesses. Oath to witnesses- Court Commissioner shall administer oath to the witnesses under examination as a delegatee of the Court as per Oaths Act, 1969.
Recording of evidence- The evidence shall be preferably typed on a computer but can also be recorded by hand neatly.
Time frame- Court Commissioner shall conclude the recording of evidence, as early as possible, but not later than eight weeks of assignment of a case. In case, for any reason the parties are unable to adhere to the time schedule, extension can be sought from the Court. Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting space by the Court Commissioner.
Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be proved by a party on record. In case of any objection to exhibition of the documents by either side, the objection shall CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 5 be recorded in some detail and left open with an assurance that mere marking of such exhibits will not be treated as conclusive proof thereof and that admissibility of such document shall be decided by the referral Court at final stage.
Original documents to be retained by parties- Court Commissioner shall make an observation in the record of evidence of all original documents produced and shall sign the exhibits with an endorsement OSR (original seen and returned) wherever necessary. If a party has filed original documents alongwith pleadings in Court, the same can be taken back as per rules for the purpose of recording of evidence before the Court Commissioner.
Language- Recording of evidence shall preferably be carried out in English or Court language, as the case may be, unless requested by the parties otherwise.
Adjournments- Once started, the cross-examination shall preferably continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be deferred but preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the side other than who is leading evidence, without 24 hour advance notice, the cost of that day's proceedings shall be borne by the defaulting party.
Explanation: In case a witness scheduled to be examined or under examination is reported to be unwell or unavailable, the party leading the evidence shall produce the next witness in line in the list for recording of evidence.
Recording of objections- All the objections raised during cross-examination/reexamination shall be recorded in the deposition under title objections and shall be left open for the decision of the Court at the stage of final arguments. Witness shall not refuse to answer the question asked. Questions to be allowed- In case Court Commissioner finds any question not related to the fact and issue, he shall record his objection but shall allow the question to be put and witness must answer. No third person intervention- Court Commissioner shall ensure that the witness is not assisted by his Counsel or any other person while under examination in answering the questions. Recording of demeanour of witness- Court Commissioner shall record the demeanour of the witness wherever it is found pertinent and necessary for sharing with the Court. Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the evidence recorded, free of cost by Court Commissioner.
Safe keeping of original deposition- Court Commissioner shall keep the original depositions in his safe custody till such time they are filed in the Court in original upon completion of each witness individually. Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceeding sheet for each day of work and shall submit it in the Court at the time of submission of final report. Hostile Witness- In case a witness is sought to be declared hostile, then Court Commissioner shall refer both the parties to Court at the earliest and the Court shall decide the issue within three days.
Part - 5 Miscellaneous
10. Summoning of Witness-
Summons from Court- In case a litigating party is desirous of summoning a person for deposition or production of documents, it shall obtain summons from the Court with an endorsement that such person shall appear before the address of Court Commissioner on scheduled date, time and place. Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as per rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court Commissioner shall ensure the following:
Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an indiscriminate manner while recording of evidence.
Polite- Court Commissioner shall be polite with the witness and other stakeholders while recording of evidence.
Confidentiality- Court Commissioner shall maintain confidentiality during the whole process. Keeping professional distance- Court Commissioner shall not solicit professional work from the parties. Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind from the parties over and above the honorarium fixed by the Court.
Non-judgmental- Court Commissioner shall not criticize the professional conduct of lawyers and litigating parties on their understanding of law.CS Comm. No. 319/2021
Sandeep Arya Vs. Anil Gupta page 6 Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses like being engaged in some personal or Court work etc. Coordination- In case of any unforeseen circumstances warranting change of dates of hearing, for his own case or the request of other side, he shall apprise the other side in advance via phone call, email, SMS, Whatsapp Group etc..
No third party sharing- Court Commissioner shall not allow the deposition to be inspected by any third party and shall not share a copy thereof with any stranger without permission of the Court. Inspection- Court Commissioner shall not allow any party to inspect the recorded proceedings in his absence.
Recusal- In case either of the parties or Counsel for the parties are related or closely known to Court Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and Rule 2(o) of the Code, Court Commissioner shall be paid remuneration for the work carried out. Mode of payment- Such remuneration shall be paid by the party directly for the work carried out by way of cash, UPI, Bank Transfer, cheque or draft against due receipt. Cost to parties- Each party shall individually bear the cost incurred in leading its evidence. Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.2,000/- per witness or Rs.2,000/- per hour whichever is more. Court Commissioner can himself record the Evidence himself and in case the Stenographer services are taken it can either be arranged by a litigating party on its own cost or in case the same is arranged by Court Commissioner, then the actual cost of typing shall be reimbursed by the party to the Court Commissioner.
Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost of litigation at the end of the suit.
13. Judicial Intervention during recording of evidence- Parties to cooperate- It is expected that both the sides will cooperate with Court Commissioner as well as with each other in recording of evidence and carry out proceedings in a cordial manner. Dissolution of hindrances- In case of any conflict resulting into hindrance recording of evidence, it shall be resolved amicably by the parties at their own level with the active help of the Court Commissioner. Court intervention- However, in case of any unforeseen situation requiring judicial intervention, Court Commissioner shall fix date and time for joint appearance of both sides before the Court for removal of any such impediment.
14. Miscellaneous Applications-
Moving the application- In case either of the parties is desirous of moving any miscellaneous application viz. amending of pleadings, interim injunction etc. it shall share an advance copy with the opposite side and reply thereof, if any, shall be filed and shared within seven days. Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for disposal in the Court with the help of Reader of the Court and shall not wait till next date fixed for hearing. All such miscellaneous applications shall be registered, numbered and indexed separately. Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view that the interim application moved by either of the parties is such that evidence cannot be recorded before its disposal, the recording of PE/DE shall continue unabatedly.
Explanation: This Regulation would apply to applications like the ones u/O Order 22 Rule 3 & 4 of the Code etc. decision whereof is a precondition for continuation of trial.
Plaintiff's Evidence
12.In the evidence recorded before Ld. LC plaintiff Sandeep Arya examined himself as PW1 vide his affidavit Ex.PW1/A, he deposed on the lines of plaint and exhibited following documents:
i. Order dated 13.05.2020 inclusive of GST is PW1/1;CS Comm. No. 319/2021
Sandeep Arya Vs. Anil Gupta page 7 ii. Essence of the Agreement document to supply sanitizer machines to various clients is PW1/2;
iii. Bank account statement of defendant on 13.05.2022 and defendant failed to reply the legal demand notice. Both are exhibited as PW1/3;
13.In his cross-examination done by Ld. Counsel for defendant he stated that he met the defendant through a common friend. The sanitizer machines supply deal was initially for 700 pieces but was later enhanced to 1,000 pieces. As per him there was no written agreement between the parties. The entire deal was concluded through Whatsapp messages. He denied the suggestion that the price of sanitizer machines had fallen down or that he did not receive the consignment on account of the same. He also denied the suggestion that he agreed to purchase Infrared Thermometers in place of sanitizer machines with an assurance that Rs.14 lacs advance would be adjusted. He denied that 570 pieces of Infrared Thermometers were delivered to him by defendant vide invoice dated 23.06.2020 and e- way bill dated 24.06.2020. He could not specifically answer whether Rs.14 lacs advance was mentioned in his ITRs for the relevant period or not. He denied that he owes Rs.1,50,000/- to the defendant.
Defendant's Evidence
14. In support of his defence, defendant Anil Gupta examined himself as DW1. In his affidavit Ex.DW1/A, he deposed on the lines of his WS and exhibited following documents:
i. The tax invoice dated 23.06.2020 along with e-way bill dated 23.06.2020 are Ex.DW1/1;
ii. The copy of the Ledger Account from 01.04.2020 to 23.06.2020 in respect of plaintiff's company is Ex.DW1/2;
iii. GST paid in invoice is Ex.DW1/3;
15.In his cross-examination done on behalf of plaintiff he stated that he came into contact with plaintiff through mobile phone but did not have a CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 8 physical meeting with him ever. He stated that he received the order of supply of sanitizer machines @ Rs.3500 per piece through Whatsapp on 13.05.2020. He accepted that he received advance of Rs.14 lacs through bank transfer. He also accepted that the consignment was supposed to be delivered within one month on 15.06.2020. As per him he made telephonic calls to the plaintiff on 15.06.2020 and 16.06.2020 for intimating the plaintiff that items are ready for delivery but the calls were not picked up by the plaintiff. He denied that he ever sent a text message to the plaintiff that he is at liberty to deliver the sanitizer machines by end of June 2020. He accepted that he has not filed any evidence to show that messages were sent to the plaintiff on 16.06.2020.
16.He claimed that the deal between him and the plaintiff qua Infrared Thermometers was agreed on phone call. He denied that no such deal was made. The Thermometer Consignment was handed over by tempo driver physically near Karkardooma Metro Station on 23.06.2020 to the staff of the plaintiff along with e-way bill. The delivery was made by his staff Vishnu Hari Dalmiya @ Dalmia. He accepted that he did not send any legal demand notice for recovery of Rs.1,13,350/-. He also accepted that he did not file any counter-claim for recovery of this amount. He denied the suggestion that no consignment of Infrared Thermometers as claimed was ever supplied. He accepted that he did receive a legal demand notice from the plaintiff and that it was not replied. He denied receiving any Pre- Institution Mediation notice. He denied that he has filed forged and fabricated documents so as to evade payment of Rs.14 lacs.
17.Another witness examined by defendant is DW2 Vishnu Hari Dalmiya @ Dalmia. In his affdiavit in chief Ex.DW2/1 he deposed that he is working with Defendant's firm Mahashakti Impex from 2018 onwards. As per him he was assigned the task of delivery of a consignment of 570 CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 9 Infrared Thermometers on 23.06.2020 which was taken through a tempo truck with the e-way bill. The Thermometers were decided to be delivered at Karkardooma Metro Station and were delivered accordingly to plaintiff's staff along with e-way bill. He, thereafter, informed his employer defendant Anil Gupta of the delivery.
18.In his cross-examination done on behalf of Ld. Counsel for plaintiff he stated that he is working with the defendant as a Store Manager but does not have a joining letter. He started the job at Rs.15,000/- per month but is now drawing Rs.20,000/- per month. He could not file any evidence of receipt of salary as he does not have a bank account. He accepted that he did not inform the plaintiff through SMS or whatsapp about the delivery of the items. He had a tempo for delivery of thermometers for Rs.800/- but no document was created. He accepted that he did not send any copy of the e-way bill to the plaintiff. He also accepted that he did not inform the plaintiff that delivery will be made at Karkardooma Metro Station. He also accepted that the tempo driver did not inform him as to which employee of the plaintiff took the delivery. He accepted that he was not present at the time of claimed delivery. He denied that he is deposing falsely.
19.The third witness examined on behalf of defendant is DW3 Nirmal, Owner of Nirmal Transport Tempo. Vide his affidavit in chief Ex.DW3/1, he stated that he has 10-11 tempos and that on the asking of Vishnu Hari Dalmiya @ Dalmia, employee of defendant to deliver a consignment at Karkardooma Metro Station he assigned tempo truck bearing no. DL- 1LU4070 vide an e-way Bill which was affixed from the carton box. The owner of the person to whom the delivery was to be given was supplied to them by Vishnu Hari Dalmiya @ Dalmia and delivery was made as directed.
CS Comm. No. 319/2021Sandeep Arya Vs. Anil Gupta page 10
20.In his cross-examination done on behalf of plaintiff he stated that he did not receive any advance amount from Vishnu Hari Dalmiya @ Dalmia on 21.06.2020 and no written agreement was executed for hiring the tempo. He could not disclose the name of the tempo driver. He accepted that he was not present when the claimed delivery was made. No receipt of actual delivery of the consignment was given back to him by his tempo driver. He claimed that on account of Corona related restrictions no physical copy of the delivery receipt was accepted. He accepted that neither he nor his driver sent any Whatsapp message to the plaintiff or his staff qua the delivery but the message was conveyed telephonically by his driver initially to him and he, in turn, conveyed it to Vishnu Hari Dalmiya @ Dalmia. The delivery was neither photographed nor videographed. He denied that no delivery was made or he is deposing falsely.
21.I have heard arguments of Sh. Amit Kumar Dhaka, Ld. Counsel for the plaintiff and Ms. Neena Malhotra, Ld. Counsel for defendant. I have perused the case file carefully.
Discussion and Findings on Issues:
i. Whether the plaintiff is entitled to recover Rs. 15.50 lacs alongwith interest @ 24% per annum?(OPP) ii. Whether defendant has supplied goods worth Rs.15,13,350/- to the plaintiff on 23.06.2022? (OPD)
22.As far as plaintiff's case is concerned, it is found, as discussed supra, that defendant has more or less admitted the entire factual case of the plaintiff. The pleadings clearly show that the claim of the plaintiff that he placed an order for purchase of 1,000 Hand Sanitizer Machines @ Rs.3500 per piece amounting to Rs.35 lacs stands admitted by the defendant. It is also admitted that the time was of essence and that the delivery was to be made between the period 10.06.2020 to 15.06.2020. It is also admitted by CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 11 the defendant that he received Rs.14 lacs advance from the plaintiff by way of bank transfer. It is further admitted by the defendant that no delivery of the said Hand Sanitizer Machines was made by the defendant to the plaintiff within the period 10.06.2020 to 15.06.2020.
23.It is, at this juncture, that the defendant endeavoured to differ from the plaintiff's pleaded case when the defendant introduces a story that he actually made a call to the plaintiff on 15.06.2020 which remained unreplied and thereafter again on 16.06.2020 plaintiff has categorically denied receipt of any such calls. The plea of the defendant that he did made a call to the plaintiff with an intend to inform that the consignment of 1,000 hand sanitizers is ready has remained unsubstantiated on record. Not only no Call Detail Records (CDRs) have been placed by the defendant on the case file but no SMS or Whatsapp or email message is shown to have been delivered. It is propounded by Ld. Counsel for defendant that on account of Covid conditions hard copy of the documents were not being exchanged. However, in so far as this entire transaction was happening on Whatsapp, sending a message to the plaintiff would have been absolutely convenient for the defendant via Whatsapp message, email message or SMS. The plea that he tried to reach him only by way of telephonic call is unbelieveworthy. As regards the non-filing of call records, Ld. Counsel for defendant submits that defendant was using an iPhone and that iPhone does not have a facility of generating call records. This plea is unacceptable in so far as iPhone is only a hardware and CDRs are generated by the Service Providers like Airtel, Vodafone, Jio etc. No submission is pleaded or made as to which service provider was used by the defendant or that he ever tried to obtain any CDR in this regard.
CS Comm. No. 319/2021Sandeep Arya Vs. Anil Gupta page 12
24.Even otherwise as far as oral transactions are concerned, onus remains on the party which requests the Court to believe his part of the story. Section 102 of the Evidence Act comes very handy in this regard.
Section 102 Evidence Act: On whom the Burden of Proof lies 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.
Illustration:
(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 no 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.
25.Once the plaintiff has established on record that he did not get the delivery of 1,000 hand sanitizer machines despite payment of advance of Rs.14 lacs, the onus of proving the availability of consignment of hand sanitizer machines was solely on the defendant as detailed supra.
26.The defendant also had another opportunity to show that he actually had 1,000 hand sanitizer machines available with him. It is seen that no documentary or oral evidence has been led to show that defendant had arranged for or procured 1,000 sanitizer machines during the stipulated time period of 10.06.2020 and 15.06.2020. Nothing was filed on record by defendant qua the claimed availability of 1,000 hand sanitizer machines. Defendant being in the business of import and export of merchandise, could have placed on record documentary and other proof of import or procurement from a bigger importer of such machines by way of requisite documents. Failure on the part of defendant to place any CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 13 such document on record calls for drawing off an adverse inference under Section 114 (g) of Evidence Act.
Section 114 Evidence Act: Court may presume existence of certain facts Illustration The Court may presume-
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
27.A plea was raised by the defendant is that the plaintiff refused to receive the consignment of 1,000 sanitizer machines. Likewise, defendant has not been able to show on record that plaintiff had actually refused to receive the hand sanitizer machines. Plaintiff has categorically maintained that he was not informed by the defendant of availability of the hand sanitizer machines that once he was not informed, there was no occasion for him to refuse the reciept of 1000 machines. Moreover, the stance of the defendant that the plaintiff refused to receive the machines because the market rate had fallen down has also not been substantiated on record from the side of the defendant. Nothing has been filed on record in support of this plea. Furthermore, it is absolutely untenable and improbable that the defendant invested Rs.35 lacs in procuring 1,000 hand sanitizer machines @ Rs.3500/- a piece and allowed the plaintiff to refuse its delivery that too upon after claimed procurement of the same.
28.Furthermore, the entire story propounded by the defendant of offering consignment of 570 Infrared Thermometers to the plaintiff is also without any iota of evidence. There is no email or SMS exchanged between the parties for showing agreement or consensus to supply and receive 570 Infrared Thermometers worth Rs.15,13,350/- of 1,000 hand sanitizers. Although defendant has placed on record a Tax Invoice for 570 Infrared CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 14 Thermometers dated 23.06.2020 along with an e-way Bill purportedly for the same consignment Ex.DW1/1 dt. 23.06.2020 but neither the tax invoice nor the e-way bill has any endorsement either from the plaintiff or any employee of the plaintiff of receipt of the same. Law with regards to Sale of Goods Act is well established. Section 31, 33 and 42 of Sale of Goods Act, 1930 places onus of proving the actual delivery of the goods on the seller.
Section 31: Duties of Seller and Buyer "It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale."
Section 33: Delivery "Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf."
Section 42: Acceptance "The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
29.This statute clearly places onus of effecting actual delivery of goods on the seller. Despite above legal position it is endeavoured by Ld. Counsel for the defendant that once the tax invoices generated by the defendant and submission of an e-way bill along with GST paid on the same as per Ex.DW1/3 are sufficient in its own wisdom to establish delivery of the goods and nothing more is to be shown. This Court is not in agreement with this plea on account of above clear legal position.
30.In support of his this plea to supply of thermometers through e-way bill defendant has examined his employee Vishnu Hari Dalmiya @ Dalmia who stated that 570 thermometers were sent through tempo truck bearing no. DL 01 LU 4070 through e-way bill Ex.DW1/1. In his cross-
CS Comm. No. 319/2021Sandeep Arya Vs. Anil Gupta page 15 examination this employee of defendant accepted that he had not prepared the delivery challan of the said consignment. He accepted that he had not informed the plaintiff either through SMS or Whatsapp or any other mode about the said delivery. He also accepted that he did not send copy of the e-way bill to the plaintiff either by way of electronic mode or hard copy. He also did not inform the plaintiff that delivery would be carried out at Karkardooma metro station. He accepted that no delivery was made to the plaintiff in his presence.
31.Likewise, statement of DW3, Owner of tempo service namely Nirmal Transport has also accepted that no delivery was made in his presence. He accepted that no SMS or whatsapp message was sent either by him or his claimed driver qua the delivery to the plaintiff or his staff.
32.In view of the above overwhelming evidence negating the claimed delivery of consignment by the defendant to the plaintiff, the defence of the defendant has remained unsubstantiated. Even though as per defendant the sum of Rs.1,13,350/- is payable by the plaintiff to the defendant, neither any legal demand notice was ever sent by the defendant to the plaintiff nor any counter-claim is filed in the suit in hand. This goes on to show that the plea of readiness of delivery of 1,000 hand sanitizer machines and claim of alternative supply of 570 Infrared Thermometers is nothing but a concoction done by the defendant to avoid payment of advance Rs.14 lacs received by him from the plaintiff.
33.As such defendant has failed to discharge the onus of proving issue no. 2 and as such issue no. 2 is decided in favour of plaintiff and against the defendant. Like, on account of clear admission and overwhelming evidence detailed and discussed supra, Issue no. 1 is decided in favour of the plaintiff and against the defendant. As far as rate of interest is CS Comm. No. 319/2021 Sandeep Arya Vs. Anil Gupta page 16 concerned, no written document has been filed by the plaintiff to show that he is entitled to 24% per annum but this appears to be on the higher side.
34.Section 34 CPC held as under:
(i)"Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest ad-
judged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6% per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the court thinks fit.
(ii).Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further in- terest may exceed 6% per annum but shall not exceed the contractual rate or interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to com- mercial transactions.
Explanation (i) In this sub-section, "nationalized bank" means a cor- responding new bank as defined in the Banking Companies (Acquisi- tion and Transfer of Undertakings) Act 1970.
Explanation (ii) For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
Where such a decree is silent with respect to the payment of further interest (on such principal sum) from the date of the decree to the date of the payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.
35.As per RBI notification dated 30.08.2022 issued vide Press Release no.2022-2023/794 whereby advisory issued by RBI to Schedule Commercial banks of adopting, deposit rates @ 9.05% per annum, Plain- tiff is entitled to decree of Rs.14 lacs/- along with interest @ 9% pendente lite and till realization with cost.
CS Comm. No. 319/2021Sandeep Arya Vs. Anil Gupta page 17
Relief
36.Suit of plaintiff is accordingly decreed with cost for a sum of Rs.14 lacs along with interest @ 9% per annum w.e.f. 13.05.2020 onwards, Pen- dente lite and till realization.
37.Decree sheet be drawn accordingly. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge, Commercial Court -03 Shahdara District, KKD Delhi 20.12.2022.
CS Comm. No. 319/2021Sandeep Arya Vs. Anil Gupta page 18