Delhi District Court
Biju Joseph Alias Biju Joseph ... vs Knit Craft International Pvt Ltd on 22 August, 2024
IN THE COURT OF SH. AMIT BANSAL,
DISTRICT JUDGE (COMMERCIAL COURT)-03,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI.
CS (COMM) 540/2023
CNR No. DLSW01-011458-2023
Mr. Biju Joseph @ Biju Joseph Panthamaekel,
Sole Proprietor of M/s CISCO International,
Office at- RZ-51 & 52 GF, Indira Park Extn.,
Part - 1, Uttam Nagar, New Delhi - 110059.
Mobile - 9811569075
Email ID:- [email protected]
.....Plaintiff
VS
M/s Knit Craft International (Pvt) Ltd.
Through its Directors
Office at: No. 930/2, Khandsa Road,
Behrampur, Khandsa, Gurugram,
Haryana - 122022
Mobile - 9810110631
Email ID- [email protected], and
[email protected]
.....Defendant
Date of institution : 13.12.2023
Date of final arguments : 14.08.2024
Date of decision : 22.08.2024
JUDGMENT
CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 1 of 211. The plaintiff has filed the present suit against the defendant with a prayer for a decree for a sum of Rs. 6,75,474/- [due to typographical error mentioned as Rs. 6,75,474/- in the prayer clause of plaint whereas it should be Rs. 6,57,474/-] along with pendente lite and future interest @ 18.00% per annum in favour of the plaintiff and against the defendant along with costs of the suit.
2. The case of the plaintiff in nutshell as averred in the plaint is to the effect that the plaintiff is in the trading & business related to industrial sewing machine spare parts and chemicals solely meant for manufacturing fabrics and cloth materials and various chemicals used for the production of garments and fabrics. The defendant is a private limited company which is in the industry of manufacturing garments and fabrics and also export thereof having an aggregate yearly financial turnover ranging from Rs. 25 to Rs. 100 crores. The defendant had been dealing with the plaintiff for the last almost ten years and they had good business relationship with each other. It has been averred in the plaint that ever since the plaintiff had been dealing and conducting business transactions with the defendant, the supply of sewing machine spare parts and chemical were delivered on credit basis with a credit period of 30 to 60 days. The plaintiff was also maintaining a ledger as usual practice for the goods and materials supplied to the defendant with their payment details as well. The plaintiff averred that according to the invoices, supply record and customer ledger maintained by the plaintiff with effect from 01.04.2019 to 03.04.2023, there was a balance payment for a total sum of Rs. 6,57,474/- to be paid by the defendant to the plaintiff.
CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 2 of 212.1 The plaintiff further averred in the plaint that the transactions initially started in the year 2017 with the plaintiff supplying the spares and chemicals and in the beginning the payments were very regular and prompt within the credit limit period, however, from the year 2021, the payment from the side of the defendant became erratic and irregular. There were ongoing and continuous transactions with effect from 17.07.2017 till 2023. It was averred that each and every tax invoice against the respective purchase orders were duly receipted and acknowledged by the representative of the defendant under seal and signature at the premises of the plaintiff. It was averred that there was a total lull and delay in the payments during the Covid
- 19 pandemic period, however, the defendant is financially sound and capable of discharging its liabilities. The plaintiff had been making demands through various means and mode i.e. telephonically, through whatsapp messages etc and also by visiting the office of the defendant, however, the defendant started behaving in a very indifferent and offensive manner. The security guards at the gate were also instructed by the defendant, not to allow any representative of the plaintiff and to prevent their entry to the office of the defendant.
2.2 It was further averred in the plaint that the plaintiff had so far made supply of goods and materials to the defendant for a total sum of Rs. 22,87,712/- however, till date had received only Rs. 16,30,238/- and hence Rs. 6,57,474/- remained unpaid by the defendant. The plaintiff lastly sent an e-mail to the official e-mail ID of the defendant on 01.05.2023 making a demand for amount of Rs. 6,57,474/-, however, no reply or response was received from the defendant. The plaintiff got issued a legal notice dated 06.05.2023 through his counsel through speed post CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 3 of 21and the said legal notice was also further dispatched through courier on 09.05.2023. Despite receiving the legal notice, the defendant failed to respond to it. The plaintiff has thus prayed for a decree of Rs. 6,57,474/- (due to typographical error mentioned as Rs. 6,75,474/- in the prayer clause of plaint whereas it should be Rs. 6,57,474/-) along with pendente lite and future interest @ 18% p.a. in favour of the plaintiff and against the defendant along with costs of the suit.
3. The defendant filed the written statement and inter alia averred that this court does not have the territorial jurisdiction to entertain the present suit. It was stated that the defendant is having office cum factory in Gurugram from where it was handling the transactions with the plaintiff and all the relevant events as discussed in the plaint including issuance of alleged purchase order by the defendant, meeting between the plaintiff and the defendant to discuss the commercial terms etc happened in Gurugram. It was stated that there was no outstanding as the defendant had already paid the due amount to the plaintiff. It was also averred that the supply was made by the plaintiff to the factory of the defendant situated at Gurugram, hence the cause of action arose in Gurugram and the courts in Delhi did not have territorial jurisdiction to entertain the present suit. It was stated that a formal order signed by both the parties is necessary for any binding agreement between the parties, there is no such binding agreement between the parties and hence there was no binding contract between the plaintiff and the defendant.
3.1. It was further averred in the written statement that the defendant is a company which is engaged in the business of manufacturing of hosiery cloth garments for export and also in CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 4 of 21manufacturing and exports of ready made garments having its principal place of business at Gurugram. It was averred that being in the need of the services, the defendant believed the representations of the plaintiff and agreed to avail the services from the plaintiff, however, it was made clear that the quality of the services should be free from any defect and charges should be competitive. It was averred that in a short span of time, the defendants realized that the assurances given by the plaintiff were just a spoof to sell poor goods, the plaintiff was not having proper infrastructure to provide said services which resulted in poor and defective goods, there were repeated delays in supply by the plaintiff which delayed the shipments of the defendant and due to it the defendant suffered losses as they had to make alternative arrangements. The plaintiff was also in the habit of raising inflated and exaggerated bills without any basis. The defendant suffered loss of reputation as well as huge losses due to cancellation of various orders due to acts of omissions and commissions of the plaintiff. It was averred that the defendant has already paid the amount which was due and payable.
3.2 The defendant further denied in the written statement that there was any ledger maintained with the plaintiff as usual practice for the goods and materials supplied to the defendant and their payment details as well. It was also denied that according to the invoices and supply record and customer ledger maintained by the plaintiff with effect from 01.04.2019 to 03.04.2023, there was a balance unpaid payment of Rs. 6,57,474/- to be paid by the defendant to the plaintiff. It was stated that the defendant had already paid the entire outstanding and there was no outstanding recoverable from the defendant. It was averred that the ledger account and the supply record is CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 5 of 21false. The defendant averred that it was a matter of record that the transactions initially started by the plaintiff towards the supply of spares and chemicals was in the year 2017 and in beginning the payments were very regular and prompt within the period of credit limits. It was denied that from year 2021 the payment from the side of defendant became erratic and irregular. It was submitted that the due amount was paid without any delay. It was stated that the ledger statement in respect of defendant with effect from 01.01.2019 to 03.04.2023 was false and fabricated. It was stated that all the invoices which were due and payable were paid by the defendant to the plaintiff and there was no outstanding. It was inter alia denied that the plaintiff had been making demand after demand or that the defendant had started behaving in a very indifferent and offensive manner or that the security guards at the gate were instructed by the defendant not to allow representatives of the plaintiff entry in the office of the defendant. It was denied that the plaintiff had so far made supply of goods and materials to the defendant for a total sum of Rs. 22,87,712/- but received Rs. 16,30,238/- or that Rs. 6,57,474/- remained unpaid. It was further denied that the plaintiff had lastly sent an email to the official email ID of the defendant on 01.05.2023 making demand of Rs. 6,57,474/- or that the plaintiff is legally entitled to recover the same from the defendant. It was stated that there was no outstanding. The issuance of legal notice and sending it to the defendant was also denied. The defendant thus prayed that the suit of the plaintiff be dismissed with exemplary costs.
4. The plaintiff filed replication to the written statement of the defendant and reiterated the facts as mentioned in the plaint and controverted the facts as mentioned in the CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 6 of 21written statement. It was further stated that from the beginning the entire transactions and collection of the material took place at office of plaintiff at Indira Park Extension, Uttam Nagar, New Delhi. It was further stated that each and every tax invoice duly signed and acknowledged by the defendant had clear endorsement that it was subject to Delhi jurisdiction only. It was denied that the courts in Delhi did not have territorial jurisdiction to entertain the present suit.
5. From the pleadings, the following issues were framed on 05.04.2024:-
1. Whether this court has no territorial jurisdiction to try the present suit? OPD
2. Whether the plaintiff is entitled to recover from the defendant a sum of Rs.6,75,474/- (Rupees six lakh seventy five thousand four hundred seventy four only), [should be Rs. 6,57,474/- & be read accordingly] as prayed in the plaint? OPP
3. If answer to issue no. 1 [due to typographical error mentioned as issue no. 1 whereas it should be issue no. 2 & be read accordingly] is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP
4. Relief.
No other issue arose or was pressed by the parties.
6. In order to prove its case, the plaintiff has examined himself as PW1. No other witness has been examined by the plaintiff.
7. The record would show that the defendant has not lead any evidence in support its defence and the defendant's CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 7 of 21evidence was closed on 03.07.2024 upon request of Ld. Counsel for the defendant.
8. Sh. K.V. Gopi, Ld. Counsel for the plaintiff has argued that this court has territorial jurisdiction to try the present suit. He referred to various tax invoices on record which have been proved as Ex. PW1/D (colly) and submitted that it has specifically been mentioned in them that 'Subjected to Delhi Jurisdiction only'. He argued that the onus to prove issue no. 1 is on the defendant, however, the defendant has not lead any evidence in this case to prove this issue. He also referred to the cross examination of PW1 and submitted that no question or suggestion was given to PW1 regarding the fact that this court has no territorial jurisdiction. He referred to the evidence by way of affidavit of PW1 / plaintiff which has been proved as Ex. PW1/1 wherein it was inter alia deposed that the representatives of the defendant company visited the outlet of the plaintiff in Delhi for the first time in July, 2017 and entered into verbal agreement for taking supply of spare parts etc., every supply took place after checking / verifying the quality and standard of each item from the business outlet of the plaintiff at Uttam Nagar, New Delhi. He further argued that it has been mentioned that the tax invoice of each and every supply made carries the agreement at the foot of the bill that any dispute would be subject to Delhi jurisdiction. He thus argued that this court in terms of Section 20(c) CPC has territorial jurisdiction to try the present suit. He further argued that the customer ledger of the defendant as maintained by the plaintiff has been proved as Ex. PW1/C wherein the amount of all the tax invoices raised by the plaintiff against the defendant, the amount received from the defendant and the balance amount has been reflected. He submitted that the CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 8 of 21said customer ledger was from 01/04/2019 to 03/04/2023 and it reflected that as on 03/04/2023 Rs. 6,57,474/- was the principal amount outstanding against the defendant to be paid to the plaintiff. He submitted that 18% GST on the said invoices has already been paid by the plaintiff and got reimbursed by the defendant. He also referred to the e-mail dated 01/05/2023 Ex. PW1/E wherein the plaintiff is demanding the outstanding payment of Rs. 6,57,474/- from the defendant. He argued that the legal notice dated 06/05/2023 has also been proved as Ex.PW1/F. He submitted that the defendant has not filed any document on record. He argued that in the written statement, the defendant has taken a defence that the plaintiff had supplied defective goods, however, this fact was not put in cross examination by the defendant to PW1. He further submitted that the entire transactions as reflected in the tax invoices are continuous transactions between the parties and hence these were within the period of limitation. He submitted that even otherwise the Covid period from 15.03.2020 to 28.02.2022 has to be excluded for the purpose of limitation. He further argued that the defendant has not lead any evidence in this case. He argued that the plaintiff has filed a proper certificate under Section 65B of The Indian Evidence Act, 1872 Ex. PW1/J and also read its contents during final arguments. He argued that the transactions from 17.05.2021 till 03.07.2021 as mentioned in the customer ledger Ex. PW1/C (colly) are the cash transactions as the plaintiff firstly took the amount of the transaction from the defendant in cash and thereafter supplied the goods as the plaintiff had lost faith and trust in the defendant. He thus prayed that the suit of the plaintiff be decreed against the defendant.
CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 9 of 219. Sh. Keshri Kumar, Ld. Counsel for the defendant has argued that the present case is a false case filed by the plaintiff against the defendant to extort money from the defendant. He argued that the plaintiff has filed invoices by picking and choosing, the ledger account has not been filed completely and no explanation has been by given by plaintiff in that regard. He referred to the ledger account Ex. PW1/C (colly) and submitted that it was showing an opening balance of Rs. 4,98,231/-, however, no explanation has been given by the plaintiff as to from where the said amount came and was reflected in the said ledger. He submitted that the present suit is hit by law of limitation as it is an invoice based case, all invoices were separate and independent contract having no link with each other and the limitation has to be seen qua each invoice. He argued that it is not a case of continuous transactions as argued by the Ld. Counsel for the plaintiff because there is no reference to any final bill. He referred to the invoices Ex. PW1/D (colly) and submitted that the invoices from page no. 165 to 171 were all paid in cash as reflected on the said invoices themselves. He also referred to the ledger account Ex. PW1/C and submitted that all entries after dated 17/05/2021 in the said ledger also mention the said invoices as paid. He further submitted that this court has no territorial jurisdiction as the address of the defendant is in Gurugram and it has not been mentioned in the plaint that the goods were supplied from which place to which place. He also referred to paragraph no. 09 of the plaint and the ledger account Ex. PW1/C (colly) and submitted that there is a material contradiction in them. He submitted that in paragraph no. 09 of the plaint it was mentioned that the plaintiff had so far supplied goods and materials to the defendant for total sum of Rs. 22,87,712/-, whereas in the customer ledger Ex. PW1/3 CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 10 of 21(Colly) it is claiming total supply to the tune of Rs. 12,54,675/- only. He submitted that in the said circumstances the customer ledger / Statement of Accounts from 01/04/2019 to 03/04/2023 Ex. PW1/C (colly) is unreliable. He also referred to the list of documents filed by the plaintiff wherein the original of the invoices from 17/07/2017 till the date of filing of the plaint were shown in the custody of the plaintiff and submitted that the original of the invoices should be with the defendant and hence the said invoices are also not reliable. He also submitted that the certificate under Section 65 of the Indian Evidence Act, 1872 Ex. PW1/J is also not proper as it does not fulfill the conditions of the said section and is silent with respect to the ledger account. He in that regard argued that the said certificate as furnished by the plaintiff also does not give particulars of any device involved in the production of the said electronic record. He further submitted that the plaintiff has also not filed declaration under Order XI Rule 6 of the Commercial Courts Act, 2015. He submitted that the evidence of PW1 is totally unreliable, the documents on record including tax invoices and the ledger account are also unreliable and hence, the suit of the plaintiff be dismissed. He further referred to paragraph no. 14 of the plaint wherein it has been inter alia mentioned that the tax invoices were raised till August, 2022 whereas the ledger account Ex. PW1/C (colly) would show the last transaction as on 03.07.2021. He submitted that either the facts mentioned in the plaint are wrong or the ledger account Ex. PW1/C (colly) is wrong. He further raised a doubt over the customer ledger Ex. PW1/C (colly) submitting that transactions from 17.05.2021 to 03.07.2021 would show that these were cash transactions wherein the cash was given in advance to the plaintiff for the goods and in case there was outstanding prior to 17.05.2021 then CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 11 of 21the plaintiff would have adjusted the said payments firstly towards the said outstanding amount to be paid by the defendant to the plaintiff. He submitted that although the defendant has not lead any evidence in this case, however, the plaintiff has to stand on his own legs and to prove its case. He submitted that the plaintiff has failed to prove its case against the defendant. He referred to paragraph no. 9 of the plaint which mentions to the effect that the plaintiff had so far made supply of goods and materials to the defendant for a total sum of Rs. 22,87,712/- but till date received Rs. 16,30,238/- i.e. Rs. 6,57,474/- remained unpaid and still pending. He referred to the customer ledger Ex. PW1/C (colly) wherein the grand total is shown as Rs. 12,54,675/- and the grand total received amount as Rs. 5,97,201/- and has submitted that facts mentioned in the plaint do not correspond to the facts mentioned in the customer ledger. He submitted that either the facts mentioned in the plaint were wrong or the entries in the customer ledger were wrong. He thus prayed that the suit of the plaintiff be dismissed.
10. The issue wise findings are as under:-
ISSUE No.1 "Whether this court has no territorial jurisdiction to try the present suit? OPD The defendant in the written statement has inter alia averred to the effect that this court does not have territorial jurisdiction over the subject matter of the dispute as the defendant has its office cum factory in Gurugram from where only it was handling the transactions with the plaintiff. It was further averred in the written statement that all the relevant events as discussed in the plaint and meeting between the CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.Page No. 12 of 21
plaintiff and the defendant to discuss the commercial terms etc occurred in Gurugram.
10.1 PW1 / plaintiff in that regard has deposed in his evidence by way of affidavit Ex. PW1/1 to the effect that the representatives of the defendant company visited the outlet in Delhi for the first time in July, 2017 and entered into verbal agreement for taking supply of spares parts of industrial sewing machine and chemicals required for the purpose of manufacturing the fabrics and apparels and every supply took place after checking, verifying the quality and standard of material of each item from the business outlet of the plaintiff / PW1 at Uttam Nagar, New Delhi. PW1 further deposed that the tax invoice of each and every supply made also carried the agreement at the foot of the bill that any dispute was subject to Delhi jurisdiction. PW1 was cross examined by Ld. Counsel for the defendant, however, as per record, PW1 was never cross examined on the said aspects of his testimony pertaining to the territorial jurisdiction of the court. The defendant would thus be deemed to admit that every supply made by the plaintiff to the defendant took place after checking and verifying the quality and standard of material of each item from the business outlet of the plaintiff at Uttam Nagar, New Delhi. Onus to prove this issue was on the defendant, however, as mentioned earlier, the defendant has neither led any evidence in this case nor cross examined PW1 on the said aspect of territorial jurisdiction of the present case. Section 20(c) CPC inter alia provides that every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. In the present case it is evident from the above said testimony of PW1 that the supply of material took place after checking and CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.Page No. 13 of 21
verifying the quality etc from the business outlet of the plaintiff situated at Uttam Nagar, New Delhi. It would show that the part cause of action arose at Uttam Nagar, New Delhi i.e. within the local limits of jurisdiction of this court which is covered within Section 20(c) CPC. Moreover, most of the tax invoices Ex. PW1/D (colly) also mention 'Subjected to Delhi Jurisdiction only' . It is thus evident that this court has territorial jurisdiction to try the present suit. In view of above said discussion, it is held that the defendant had failed to prove that this court has no territorial jurisdiction to try the present suit. Issue no. 1 is thus decided against the defendant and in favour of the plaintiff.
11. ISSUE No. 2Whether the plaintiff is entitled to recover from the defendant a sum of Rs.6,75,474/- (Rupees six lakh seventy five thousand four hundred seventy four only) [should be Rs. 6,57,474/- & be read accordingly], as prayed in the plaint? OPP PW1 Sh. Biju Joseph @ Biju Joseph Panthamaekel (plaintiff) has tendered his evidence by way of affidavit as Ex. PW1/1 wherein he has generally reiterated the facts as stated in the plaint. Copy of GST REG-06 of the plaintiff (Registration Certificate dated 19.09.2017) with Trade name CISCO International has been proved as Ex. PW1/A. Copy of the online search result of the defendant's GSTIN from GST portal has been proved as Ex. PW1/B. Customer ledger statement of the defendant as maintained by the plaintiff w.e.f. 01.04.2019 to 03.04.2023 has been proved as Ex. PW1/C (colly). The original tax invoices of supply made by the plaintiff to the defendant company have been proved as Ex. PW1/D (colly)(from page no. CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 14 of 2123 to page no. 171 of the file). Copy of e-mail dated 01.05.2023 from the plaintiff to the defendant has been proved as Ex. PW1/E (colly). Copy of legal notice dated 06.05.2023, its speed post receipt and courier receipt have been proved as Ex. PW1/F to Ex. PW1/H respectively. Copy of Non Starter report dated 03.10.2023 of South West - DLSA, Dwarka Courts, New Delhi has been proved as Ex. PW1/I. The Certificate under Section 65 of the Indian Evidence Act, 1872 has been proved as Ex. PW1/J. 11.1. During his cross examination, PW1 inter alia deposed that he was into the business of trading of industrial sewing machines spare parts and garments processing chemicals. He deposed that he has started the business in the year 2010, he had supplied the industrial sewing machines spare parts and garments processing chemicals to the defendant and he had been supplying it to the defendant since the year 2014. He deposed that the defendant used to normally make month wise payments to him for the bills due for the said month and the delay in payments from the side of the defendant started during Covid period. He denied the suggestion that the defendant had made up to date payment which was due before the Covid period. He volunteered that there was outstanding payment even before the Covid period and the defendant had sought some time to pay it. He was asked to point out the particular invoices which had not been paid by the defendant to which he replied that the said invoices were already reflected in the ledger account Ex.PW1/C (colly) of the defendant . He deposed that the last invoice which was raised against the defendant was voucher no. 000261/21-22 dated 03.07.2021 of Rs. 5,664/-, however, it was not on record as it was against the cash payment. He denied the suggestion that the invoices were not issued for the supply against cash payment. CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 15 of 21He deposed that the ledger account Ex. PW1/C (colly) started from 01.04.2019 and was till 03.04.2023 and that it was complete. He admitted that the outstanding amount shown in the said ledger as on 01.04.2019 was Rs. 4,98,231/-. He denied the suggestion that the said ledger account Ex. PW1/C (colly) was neither correct nor complete. He admitted that the first invoice filed by him on record was dated 17.07.2017 which was part of Ex. PW1/D (colly). He admitted that the customer ledger started from 01.04.2019. He denied the suggestion that the certificate under Section 65B of The Indian Evidence Act, 1872 Ex. PW1/J was not as per law.
12. The case of the plaintiff in nutshell is to the effect that he used to trade in the business related to industrial sewing machine spare parts and chemicals meant for manufacturing fabrics and cloth materials and various chemicals used for the production of garments and fabrics, defendant is a private limited company, the defendant had been dealing with the plaintiff for almost 10 years, the plaintiff was supplying the said goods and materials to the defendant against tax invoices, the plaintiff also maintained a ledger account of the defendant and the said ledger account showed an outstanding amount for total sum of Rs. 6,57,474/- to be paid by the defendant to the plaintiff. Vide the present suit, the plaintiff has prayed for a recovery of the said outstanding amount of Rs. 6,57,474/- along with pendente lite and future interest @ 18% p.a. along with costs of the suit.
13. It is thus evident from the facts of the case that the case of the plaintiff is mainly based upon the customer ledger Ex. PW1/C (colly). Perusal of the said ledger, however, shows that it is completely unreliable because firstly the said ledger CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 16 of 21mentions an opening balance of Rs. 4,98,231/- as on 01.04.2019 as outstanding amount against the defendant, however, the plaintiff has failed to explain the basis on which the said opening balance was calculated and mentioned in the said ledger account. PW1 in the cross examination has admitted that the outstanding amount showing the said ledger as on 01.04.2019 is Rs. 4,98,231/-. He denied the suggestion that the said ledger account Ex. PW1/C (colly) was not correct or that it was incomplete. Although the defendant has not led any defence evidence in this case, however, it is the case of the plaintiff and onus to prove the complete Statement of Accounts / Customer ledger of the defendant as maintained by the plaintiff was upon the plaintiff. The plaintiff has failed to explain as to how the said opening balance of Rs. 4,98,231/- has been calculated or reached at by the plaintiff. In the absence of any such explanation, the said ledger account becomes totally unreliable and cannot be relied upon. Secondly, the plaintiff in the plaint has mentioned that the plaintiff has so far made supply of goods and materials to the defendant for a total sum of Rs. 22,87,712/- but till date received Rs. 16,30,238/- and as such an amount of Rs. 6,57,474/- remained unpaid and still pending. The customer ledger Ex. PW1/C (colly) would however show the grand total debit of Rs. 12,54,675/- and grand total credit of Rs. 5,97,201/-. The above said figures as mentioned in the plaint of Rs. 22,87,712/- and Rs. 16,30,238/- are neither reflected nor shown in the said customer ledger Ex. PW1/C (colly). It also creates doubt over authenticity of the said customer ledger Ex. PW1/C(colly). Further, as already discussed above, the plaintiff has also not explained or proved the basis upon which the said opening balance of Rs. 4,98,231/- was reached at or calculated by him. Thirdly, it is also evident that the plaintiff has not proved the complete ledger account. The CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 17 of 21ledger account as proved on record i.e. Ex. PW1/C (colly) is for the period from 01.04.2019 to 03.04.2023. PW1 in his evidence by way of affidavit Ex. PW1/1 has inter alia stated that there were ongoing and continuous transactions (between the parties) w.e.f. 17.07.2017 till 2023. It is thus evident that the plaintiff has filed the incomplete ledger account of the defendant while showing an opening balance of Rs. 4,98,231/- as on 01.04.2019 and hence it cannot be relied upon. Fourthly, it has inter alia been mentioned in paragraph no. 14 of the plaint that the cause of action continued when the tax invoices were raised till August, 2022, whereas the last ledger entry of sales accounts Ex. PW1/C (colly) is dated 03.07.2021. It is a material contradiction in the plaint as well as in the customer ledger Ex. PW1/C (colly) which raises a strong doubt on the entries in the said customer ledger. In the said circumstances, the ledger account Ex. PW1/C (colly) becomes highly doubtful and it cannot be relied upon in the present case. As discussed above, the case of the plaintiff is mainly based upon the said ledger account Ex. PW1/C (colly), however, as it is highly doubtful and unreliable, hence, the suit of the plaintiff is liable to be dismissed.
13.1. Further, as per record, the plaintiff has proved the certificate under Section 65B of The Indian Evidence Act, 1872 regarding electronic record as Ex. PW1/J. The record would however show that the plaintiff has not filed a proper certificate as far as the Customer ledger / Statement of Account Ex. PW1/C (colly) is concerned. The said certificate under Section 65B of The Indian Evidence Act, 1872 Ex. PW1/J would show that inter alia it has been certified that computer generated online search result of the defendant's GSTIN from the portal of plaintiff GSTIN, e-mail etc, all other connected documents pertaining to CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 18 of 21the suit are duly downloaded from the personal computer of the plaintiff. As per Section 65B(4) of the Indian Evidence Act, 1872 a certificate has to be given regarding admissibility of electronic record which should identify the electronic record containing the Statement and describing the manner in which it was produced. The plaintiff by virtue of the said affidavit Ex. PW1/J has failed to even mention or identify the electronic record i.e. customer ledger Ex. PW1/C (colly). The said customer ledger Ex. PW1/C (colly) is not even specifically mentioned in the said certificate Ex. PW1/J. The plaintiff has also not given such particulars of the device involved in the production of said electronic record which is a mandatory condition under Section 65B(4) of The Indian Evidence Act, 1872. It is thus evident that the plaintiff has not filed a proper certificate under Section 65B of The Indian Evidence Act, 1872 and as such the electronic record i.e. the customer ledger of the defendant Ex. PW1/C (colly) filed by the plaintiff cannot be read in evidence. The misery of the plaintiff is further compounded by the fact that the plaintiff has also not filed any declaration on oath qua the electronic record required under Order XI Rule 6(3) of the Commercial Courts Act, 2015 as applicable to CPC. The plaintiff has thus failed to properly prove the electronic record i.e. the ledger account Ex. PW1/C (colly).
13.2. In view of the above said discussion, the plaintiff has failed to prove the issue no. 2 to the effect that it is entitled to recover from the defendant a sum of Rs. 6,57,474/- as prayed in the plaint. Issue no. 2 is thus decided against the plaintiff and in favour of the defendant.
14. Issue no. 3 CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 19 of 21If answer to issue no. 1 [due to typographical error mentioned as issue no. 1 whereas it should be issue no. 2 & be read accordingly] is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP In view of my findings on issue no. 2 to the effect that plaintiff is not entitled to recover from the defendant a sum of Rs. 6,57,474/- as prayed in the plaint, it is held that the plaintiff has also failed to discharge the onus of proof qua the issue no. 3. The issue no. 3 is thus also decided against the plaintiff and it is held that the plaintiff is not entitled to any interest.
15. Issue No. 4Relief.
In view of above said discussion and findings on issue no. 2 & 3, it is held that the plaintiff is not entitled to any relief and has failed to prove its case beyond preponderance of probabilities against the defendant.
16. The suit of the plaintiff is thus dismissed, however, with no order as to costs.
Decree sheet be drawn accordingly.
A copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
Page No. 20 of 2117. File be consigned to record room after due compliance.
Announced in open Court Digitally
signed by
AMIT
AMIT BANSAL
on 22.08.2024 BANSAL Date:
2024.08.22
15:38:18
+0530
(Amit Bansal)
District Judge (Commercial Court)-03,
South-West, Dwarka Courts, New Delhi
22.08.2024
CS (COMM) 540/2023 Biju Joseph @ Biju Joseph Panthamaekel Vs. M/s Knit Craft International (Pvt) Ltd.
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