Delhi District Court
Varun Beverages Ltd vs V.V. Enterprises on 29 January, 2019
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT JUDGE12, TIS
HAZARI COURTS, DELHI
CS No. 14325/16
Varun Beverages Ltd.,
(Formerly known as Devyani Beverages Ltd.),
F2/7, Okhla Industrial Area, PhaseI,
New Delhi - 110020.
Through its AR,
Sh. Arun Kumar Mishra. .... Plaintiff
Versus
1. V.V. Enterprises,
Opp. Bus Stand,
Biharigarh, Dist. Saharanpur,
Uttar Pradesh.
2. Sh. Vinay Vats,
S/o Sh. V.C. Vats,
2, Prem Nagar,
Roorkee. ..... Defendants.
Date of institution : 08.10.2007
Date of reserving Judgment : 23.01.2019
Date of decision : 29.01.2019
SUIT FOR RECOVERY OF RS. 3,78,773.08.
JUDGMENT
1. Vide this judgment, I shall decide the suit for recovery of Rs. 3,78,773.08 filed by the plaintiff against the defendant.
Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 1 of 20
2. Brief facts as stated in the plaint are that the plaintiff is a limited company and is engaged in the business of manufacturing / marketing of soft drink / aerated water / fruit pulp based drinks and other allied products. Devyani Beverages Ltd. was merged with the plaintiff vide order of amalgamation / merger passed by the Delhi High Court on 6.10.2004. The defendant No. 2 is a proprietorship concern which, through defendant No. 1 had entered into a distributorship agreement dated 29.6.2003 with Devyani Beverages for sale and distribution of soft drinks, aerated water, fruit pulp etc. manufactured by the plaintiff company in the defined territory of Biharigarh, Saharanpur. As per distributorship agreement, all supplies of the goods were made to the defendant as per invoices / challans. Plaintiff was maintaining running account and as per which an amount of Rs. 2,78,509/ is outstanding against the defendant as on 10.7.2005 for supply of goods. Hence, the defendant was asked to clear outstanding amount but the defendant did not pay any heed hence, legal notice dated 23.2.2006 was sent through counsel calling upon the defendant to clear the amount but the defendant did not clear the amount. Hence, the defendant is liable to pay an amount of Rs. 3,78,773.08 which includes Rs. 2,78,509.62 as principal and Rs. 1,00,263.46 as interest from 10.7.2005 to 10.7.2007 @18% per annum.
3. Defendant contested the case by filing written statement in which it is stated that this court has no territorial jurisdiction as no cause of action arose within the jurisdiction of this court and that suit is barred by time.
On merits, defendant has denied the contents of the plaint as incorrect. It is Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 2 of 20 stated that the agreement entered with plaintiff at Greater Noida and not at Delhi. It is further averred all the supplies were made to the defendant against advance payment and no such invoice, as mentioned in the plaint, were issued and all the documents filed by the plaintiff are false, fabricated and never shown to the defendant. It is denied that running account was maintained. It is stated that no outstanding amount was dues. Hence, defendant prays for dismissal of the suit.
4. Plaintiff has filed replication in which, in reply to the preliminary objections, it is stated that the registered office of the plaintiff is in Delhi and thus, this court has territorial jurisdiction.
On merits, the plaintiff has denied the contents of written statement as incorrect and reiterated the contents of plaint as correct.
5. On the basis of the pleadings of the parties, Ld. Predecessor has framed following issues vide order dated 27.1.2012:
1. Whether the Delhi Courts have no territorial jurisdiction to entertain the present suit? OPD.
2. Whether the suit is time barred? OPD.
3. Whether the plaintiff is entitled for the decree of Rs. 3,78,773.08 as prayed for? OPP.
4. Whether the plaintiff is entitled for interest? If yes, at what rate and for what period? OPP.
Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 3 of 20
5. Relief.
6. In order to prove its case, plaintiff has examined its Executive Accountant / AR Sh. Sudesh Gaur as PW1 who tendered his evidence by way of affidavit as Ex. PW1/X.
7. On the other hand, defendants have examined defendant No. 2 Sh. Vinay Vats as DW1 who led his evidence by way of affidavit as Ex. DW1/A.
8. Arguments were heard from the counsel for the plaintiff and from the counsel for the defendants. I have considered the arguments and have gone through the case file. My issuewise findings are as follows :
9. ISSUE NO. 1.
Whether the Delhi Courts have no territorial jurisdiction to entertain the present suit? OPD.
The onus to prove these issues is upon defendants. In order to prove the same, defendants through testimony of DW1 Sh. Vinay Vats, has deposed that the material was supplied to the defendant through Noida office and the office of M/s. Devyani Beverages was also at Noida and the office of defendant No. 1 was at Biharigarh, Uttar Pradesh and as such, no cause of action to file the present suit is arisen in Delhi even registered office of the plaintiff is in Okhla. Hence, this court has no territorial jurisdiction to entertain the present suit.
10. On the other hand, as stated above, plaintiff has only examined Sh. Sudesh Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 4 of 20 Gaur as PW1 who in his evidence by way of affidavit Ex. PW1/X has deposed that plaintiff company is a limited company having its office at F2/7, Okhla Industrial Area, New Delhi - 110020 and M/s. Devyani Beverages Ltd. amalgamated / merged with the plaintiff company by the order of Hon'bl High Court dated 6.10.2004. It is further deposed that since the plaintiff company has office in Delhi and maintain its account in Delhi and payments against supply of goods were / are payable / made by the defendants either in cash or by cheque / DD payable at Delhi and defendant has lastly made payment of Rs. 15,000/ vide cheque No. 949336 dated 29.10.2004 which was credited to the account of plaintiff company on 1.11.2004.
11. Ld. Counsel for the plaintiff has contended that in view of testimony of PW1, it is proved that plaintiff's office is situated at Delhi and plaintiff's bank is also situated in Delhi and defendant was making payment to the Delhi bank therefore, part cause of action has arose in Delhi. He further argued that as per invoice Ex. PW1/4 all disputes are subject to jurisdiction at Delhi only, therefore, this court has territorial jurisdiction.
12. On the other hand, it is contended by the counsel for the defendant that from the testimony of defendant, it is evident that neither his business was in Delhi nor the defendant resides or works for gain in Delhi therefore, Delhi Courts have no territorial jurisdiction to entertain the present suit.
13. I have considered the submissions of the parties and have gone through the record. Under subsections (a) and (b) of Section 20, the place of residence of the Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 5 of 20 defendant or where he carries on business or works for gain is determinative of the local limits of jurisdiction of the Court in which the suit is to be instituted. Subsection (c) of Section 20 provides that the suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, accrues.
14. It is undisputed fact that defendant has entered into distribution agreement Ex. PW1/2 with with Devyani Beverages. Ltd. whose registered office as mention in the agreement is at F2/7 Okhla Industrial Area, Phase1, New Delhi though manufacturing plant is at Greater Noida. In the agreement it is mentioned that all the disputes shall be subject to jurisdiction at Delhi only. From the stamp of Notary public on the said agreement it is also evident that it was executed at Delhi as it was attested by Notary Public, Delhi. In the invoices Ex. PW1/4 also, the registered office of Devyani Beverages was situated at Okhla Industrial Area and in the invoice, it is mentioned that all disputes are subject to jurisdiction of Delhi Courts. The defendant has given no suggestion that these invoices are false or fabricated. As evident from Judgment dated 06.10.2004 passed by Delhi High Court in Co. Petition no.208/2004 Ex. PW1/3, Devyani Beverages was taken over by the plaintiff. Hence part cause of action arisen within the jurisdiction of Delhi therefore despite the fact that defendant does not resides or work for gain in Delhi this court has territorial jurisdiction. In this regard, I rely upon the Judgment of Hakam Singh Vs. Gammon (India) Ltd. 1971 (1) SCC 286, wherein it was held that it is not open to the parties to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 6 of 20 where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or a proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. It was also held that such an agreement does not contravene Section 28 of the Contract Act.
15. In Dentsply India (pvt.) Ltd. Vs. Excel Internation, Judgment passed by Hon'ble High Court in (C.S. (OS) No.410/1999, the principles for determination of place for filing suit were laid down and in para 5 and 6, it has been observed as under :
"5. The defendants urge framing of an issue as to lack of territorial jurisdiction of this Court. In a contractual matter, the jurisdiction of a Court arises from four aspects. The first is where the contract is entered into. Second is where the contract is to be performed. The third is where moneys have to be paid under the contract and fourthly where the defendants in the suit are residing or voluntary working for gain. This is the ratio of the judgment of Supreme Court in the case of ABC Laminart Pvt. Ltd. & Anr. vs. A. P. Agencies, Salem, AIR 1989 SC 1239. if there is more than one Court which has territorial jurisdiction, then parties by contract can restrict the jurisdiction to one or more of the Courts which have jurisdiction, however, parties by consent restrict the jurisdiction on one or more of the Courts which have jurisdiction, however, parties by consent restrict the jurisdiction to one or more of the Courts which have jurisdiction, however, parties by consent cannot confer jurisdiction on a Court which otherwise does not have any. In the present case, the only reason is urged for pleadings that this Court has no territorial jurisdiction is because the goods are alleged to be supplied by the plaintiff from its godowns at Gurgaon."
Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 7 of 20
16. As evident from Judgment dated 06.10.2004 passed by Delhi High Court in Co. Petition no.208/2004 Ex. PW1/3, Devyani Beverages was taken over by the plaintiff. In view of above I held that this court has territorial jurisdiction to decide the present case. Issue no. 1 is decided in favour of plaintiff and against the defendant.
17. ISSUE NO. 2.
Whether the suit is time barred? OPD.
The onus to prove this issue is upon the defendant. Ld. Counsel for the plaintiff has contended that the defendants had admitted in the written statement that no material has been supplied by the plaintiff after 30.11.2004 whereas the present suit was filed by the plaintiff on 6.10.2007 hence, the suit is not barred by limitation. Hence, even as per testimony of DW1, the suit is within limitation. Further, from the testimony of PW1, it is proved that the defendant has lastly made payment of Rs. 15,000/ on 29.10.2004 vide cheque No. 949336 dated 29.10.2004, hence, in these circumstances, suit is within limitation.
18. The period of limitation for recovery of money for goods supply as entry 16 of Limitation Act is 3 years. Since the onus was upon the defendant to prove that the suit is barred by limitation but the defendant has not led any evidence to prove the said fact. Further, defendant has not given any suggestion to the plaintiff that last payment was not made on 29.10.2004. hence, the suit has been filed within three years from the date of last payment as the suit has been filed on 6.10.2007. Therefore, issue No. 2 is decided in Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 8 of 20 favour of the plaintiff and against the defendant.
19. ISSUE NO. 3.
Whether the plaintiff is entitled for the decree of Rs. 3,78,773.08 as prayed for? OPP.
The onus to prove this issue is upon the plaintiff. In order to prove the same, the plaintiff has only examined Sh. Sudesh Gaur as PW1 who has almost reiterated the same contents in his affidavit as stated by him in the plaint. Therefore, same are not repeated here. He has relied upon the following documents :
1. Distributor agreement as Ex. PW1/2.
2. Certified copy of order of Delhi High Court as Ex. PW1/3.
3. True copy of invoices as Ex. PW1/4 (Colly.).
4. Bank statement and bank challan Ex. PW1/5 (Colly.).
5. True copy of ledger account as Ex. PW1/6.
6. Though dealer empty and unreturned glass case position was mentioned as Ex. PW1/7 in the evidence by way of affidavit Ex. PW1/X however, during tendering the same, said document was not found on record hence, deexhibited.
7. Copy of notice along with postal receipts as Ex. PW1/8 and Ex.
PW1/9.
8. Certified true copy of letter of authority dated 20.1.2014 as Ex. Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 9 of 20 PW1/10.
20. In his cross examination, he denied the suggestion that he is not any authority to given evidence on behalf of plaintiff company. He deposed t hat he has not brought the meetings book of directors relating to board resolution dated 20.8.2007 and 20.9.2013 and original power of attorney dated 26.12.2013. He admitted that there is no special power of attorney on record. He admitted the suggestion that the material to the defendants was supplied in his presence. He admitted the suggestion that invoices were issued from Greater Noida. He admitted the suggestion that on 30.11.2004, the outstanding as per ledger account filed by the plaintiff is Rs. 2789.62 only and as per the statement of account, last material was supplied on 27.10.2004. He denied the suggestion that Ex. PW1/7 was not filed along with the plaint. He denied the suggestion that the material supplied by the plaintiff was subject to the advance payment though it may have been mentioned so in the distribution agreement in para 3. He was not aware if security was also obtained by the plaintiff. He admitted the suggestion that no written notice of termination of agreement was given by the plaintiff. He denied the suggestion that there was no mention of empty bottles in the entire plaint. He denied the suggestion that no invoice was issued in Delhi or any goods was supplied from Delhi. He admitted that corporate office of M/s. Varun Beverages situated in Haryana.
21. On the other hand, defendant has denied the claim of the plaintiff and examined Sh. Vinay Vats as DW1 who through his affidavit Ex. DW1/A has deposed that Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 10 of 20 as per the account statement, the plaintiff the debit balance of Rs. 2789/ on 30.11.2004 and admittedly, no material was supplied after 30.11.2004. No account of empty bottles was maintained and the same were taken back by M/s. Devyani Beverages Ltd. as per their convenience and no receipt as per practice was ever given by the Devyani Beverages Ltd. at the time of taking back the bottles. It is further deposed that all the supplies were made to the defendants against advance payment and as such there is no question of any liability. He further deposed that Devyani Beverages Ltd. suddenly started supplying material to another distributor giving wrong message in the market and as such defendant could not recover the outstanding from the market causing huge monetary loss to the defendant.
22. It is contended by the counsel for the plaintiff that from the testimony of PW1 and the documents i.e. account statement Ex. PW1/6, it is proved that a sum of Rs. 2,78,509/ was balance against the defendant which was not paid by the defendant despite the service of notice. Hence, plaintiff is entitled to the said amount. On the other hand, counsel for the defendant has argued that first of all, PW1 has failed to prove any board resolution or special power of attorney in his favour that he is authorized to appear and depose on behalf of the plaintiff. Hence, his testimony cannot be read in evidence. He also argued that as evidence from the account statement of defendant on 30.11.2004, only a sum of Rs. 2789/ was due against the defendant therefore, admittedly no material was supplied by the defendant after 30.11.2004 therefore, the claim of Rs. 2,78,509/ with Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 11 of 20 interest is without any basis and is liable to be dismissed.
23. I have considered the submissions and have gone through the record. First of all, this to be decided as to whether PW1 is entitled to depose on behalf of plaintiff company or not. PW1 has deposed in his testimony that he is the authorized representative of the plaintiff and has been authorized vide authority letter dated 20.1.2004 which he proved as Ex. PW1/10. On perusal of said Ex. PW1/10, it is evident that PW1 has been authorized to appear in this case. Therefore, in my view, PW1 has authority to appear in this case and depose on behalf of the plaintiff.
24. Now coming to the aspect whether plaintiff is entitled to recover the amount as claimed in the suit. PW1 in support of his testimony has only relied upon the statement of account/ledger Ex. PW1/6 maintained by plaintiff qua defendant. I am agree with the contention of Ld. Counsel for defendant that since it is computer print out hence same cannot be read in evidence in the absence of certificate under Section 65B of Indian Evidence Act. In this regard, I rely upon the Judgment of ICICI Bank Vs. Surbhi Gupta 2018SCC online Delhi 6949 wherein while setting aside the order of trial court dismissing the suit it has been held :
"14. Section 34 of the Evidence Act clearly provides that the books of accounts maintained in electronic form are relevant. Under Section 62 of the Evidence Act, original documents constitute primary evidence. In the context of electronic evidence, printouts of electronic documents are as secondary. However, judicial notice needs to be taken of the fact that most Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 12 of 20 accounts today are not maintained in paper form, but electronic form. The primary evidence could be the server on which the statement of accounts is stored. These servers may store the statement of accounts of multiple clients in the hard drive. It would be an impossibility to require the Plaintiff bank to produce the hard drive of the server in every suit for recovery filed by it. Under such circumstances, the Plaintiff bank has no option but to produce the secondary evidence i.e., a printout of statement of accounts, duly certified by a responsible official of the bank along with a certificate under Section 65B of the Evidence Act. Needless to add, the certificate under Section 65B of the Evidence Act has now become a usual practice in almost all of the suits, inasmuch as, in every such suit, parties are bound to place reliance on electronic documents. The mere fact, that the printout is being filed as secondary evidence along with the necessary certificate, does not make it any less valid. The said accounts statement would be rebuttable if any discrepancy is found or pointed out. But in the absence of the same, there is no reason as to why the statement of accounts filed by the Plaintiff bank should be disbelieved. The Supreme Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 : AIR 2015 SC 180 (hereinafter, Anvar v. Basheer'), while addressing the issue of admissibility of electronic evidence and Section 65B of the Evidence Act held as under:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 13 of 20 clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Subsection (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65B(2). Following are the specified conditions Under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy ofits contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity
14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 14 of 20
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of examiner of electronic evidence.
17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
.......................
Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 15 of 20
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
15. The above judgement was followed in Harpal Singh v. State of Punjab AIR 2016 SC 5389 and by a Division Bench of this Court in Kundan Singh v. State I (2016) CCR1 (Del). A Single Judge of this Court, relying on Anvar v. Basheer (supra), in ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65 held as under:
"18. Though the ratio of Anvar P.V. supra, to me, appears to require the certificate/affidavit under Section 65B of the Evidence Act to accompany the electronic record when produced in the Court, and a learned Single Judge of this Court also in Ankur Chawla v. Central Bureau of Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 16 of 20 Investigation opining so acquitted the petitioner/accused therein (though the SLP is pending in the Supreme Court) but a Single Judge of the High Court of Rajasthan in Paras Jain v. State of Rajasthan did not agree with the judgment of this Court in Ankur Chawla supra observing that "when legal position is that additional evidence, oral or documentary, can be produced during the course of trial ifin the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the chargesheet. In my opinion it is only an irregularity not going to the root of the matter and is curable". A Division Bench of this Court in Kundan Singh v. State also, on a reading of Anvar P.V. supra, disagreed with the view taken in Ankur Chawla supra and held that the words "produced in evidence" did not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under Section 65B(4). It was held that all that is necessary is that the person giving the certificate under Section 65B(4) should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in Section 65B(2), identify the electronic record, describe the manner in which computer output was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer. It was further held that emails are downloaded and computer output, in the form of paper prints, are taken every day; these emails may become relevant and important electronic evidence subsequently; it is difficult to conceive Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 17 of 20 and accept that the emails would be inadmissible, if the official who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65B. .................
20. It thus but has to be held that the plaintiffs are entitled to file the certificate under Section 65B of the Evidence Act, even subsequent to the filing of the electronic record in the Court. Order XI Rule 6 ofCPC as applicable to commercial suits is also not found to provide to the contrary."
25. Even otherwise from perusal of Ex. PW1/6, it is evident that on 30.11.2004 only a balance of Rs. 2789/ has been shown and then an amount of Rs. 2,75,720/ has been debited/ transfered in the account of defendant on 10.7.2005 on account of glass cases which makes out a total balance of Rs. 2,78,509/ as claimed by the plaintiff. No documents have been filed by the plaintiff as to how many glass cases (empty bottles) were given to the defendant and how many were not returned and what was the cost of each glass case/ bottles when the same were supplied to the defendant. The plaintiff was required to prove how many empty bottles were supplied to the defendant and how many were not returned. When the plaintiff demanded the returned of the empty bottles/ glass cases. But except ledger statement Ex. PW1/6 no other document was file to support on what basis entry of Rs. 2,75,720/ has been debited/ transfered in the account of defendant on 10.7.2005. Admittedly last supply of goods were made to the defendant on 30.1.2004 and amount of glass case was transferred in the ledger account of the defendant Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 18 of 20 on 10.7.2005. Why the plaintiff has waited till 10.7.2005 to transfer the amount of Rs. 2,75,720/ of the glass cases on 10.07.2005. No notice was sent by the plaintiff to the defendant demanding return of glass cases before transferring the amount in the ledger of defendant. Even in the legal notice Ex. PW1/8 no details has been given on what basis amount of Rs. 2,78,509/ has been claimed. Even in the legal notice it is not mention that amount of Rs. 2,75,720/ has been claimed on account of not return of empty bottles.
26. I am agree with the contention of counsel for the defendant that merely by showing the amount of Rs. 2,75,720/ as amount of glass cases in the ledger / account statement, plaintiff is not entitled to recover the said amount as plaintiff as failed to proved the basis of making the said entry in the ledger account of defendant. In these circumstances, I held that the plaintiff has failed to prove that it is entitled to recover any amount.
27. On the other hand DW1 in his testimony has categorically deposed that all the supplies were made against the advance payment. Inn his cross examination also he has repeated the same. He has denied the suggestion that he is liable to pay Rs. 3,78,773/ to the plaintiff. No suggestion has been given to him that this much quantity of bottles/ glass case were supplied to the defendant and he has not paid the cost of empty bottles or he was liable to returned the same or that he has not returned the same despite demand. Nothing has been came out in the testimony of DW1 to disbelieve the same. Hence, there is nothing in the evidence of defendant has come out which support case of Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 19 of 20 plaintiff that defendant is liable to pay the amount as claimed by the plaintiff and further nothing has been come out in the cross examination to disbelieve the testimony of defendant.
28. In view of above I held that plaintiff has failed to prove that he is entitled to recover any amount from the defendant. Issue No. 3 is decided accordingly in favour of defendants and against the plaintiff.
29. ISSUE NO. 4.
Whether the plaintiff is entitled for interest? If yes, at what rate and for what period? OPP.
Since the plaintiff has failed to prove that it is entitled to recover any amount therefore it is not entitled to any interest. Issue no. 4 is decided against the plaintiff.
30. RELIEF.
In view of my findings on aforesaid issues, I held that the plaintiff is not entitled to recover any amount, therefore plaintiff is not entitled to any relief. Hence suit of plaintiff is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev KumarI)
on 29.01.2019 Additional District Judge12, Central
Tis Hazari Courts, Delhi
Digitally signed by 29.01.2019
SANJEEV SANJEEV KUMAR
KUMAR Date: 2019.01.29
16:19:57 +0000
Suit No. 14325/16 Varun Beverages Ltd. Vs. V.V. Enterprises & Anr. Page No. 20 of 20