Delhi District Court
M/S Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. Ors on 22 March, 2024
IN THE COURT OF SHRI ARVIND KUMAR :
DISTRICT JUDGE (COMMERCIAL COURT-01)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 149/2021
M/s Sky Scraper Build Tech
Through its Partner
Shri Sachin Agarwal
Regd. Office at:-
151 & 152, Flat No. G-01
Village Patparganj
Delhi - 110091 ................Plaintiff
Versus
1. Sharnya Infra Pvt. Ltd.
Through its Director
Shri Mittal Shah
At 602-603, 6th Avenue
Opp. Textile Cooperative Bank
Mithakali Six Roads
Ahmedabad - 380009, Gujarat
Camp Office:
151, Patparganj, Delhi - 110091
2. NBCC India Ltd.
Through its Manager
Mr. Bidyut Roy And Mr. Nandkishor Ram
At Redevelopment of Sarojini Nagar
AB-803, Vinayak Mandir Marg
Sarojini Nagar, New Delhi - 110023 ...........Defendants
Date of institution : 07.09.2021
Date of reserving judgment : 11.03.2024
Date of judgment : 22.03.2024
JUDGMENT:
1. The plaintiff has filed the present suit for recovery of CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 1 of 23 a sum of Rs.95,74,405/- (principal amount) and Rs. 40,93,000/- (interest) against the defendant no. 1 alongwith pendente lite and future interest @ 18% per annum.
2. In brief, the facts as averred in the plaint are that the plaintiff is a partnership firm registered with the Registrar of Firm under Registration No. district east/firm/2016/1546 dated 12.08.2016 and Shri Sachin Agarwal is one of the partners of the plaintiff firm and has been authorized vide Authorization Letter in his favour. The plaintiff firm is engaged in the business of construction. It is averred that defendant no. 1 is a builder/developer and is engaged in the business of construction and development of infrastructure and that defendant no. 1 was allotted one tender/award for development of GPRA Complex at Sarojini Nagar by the defendant no. 2 i.e. NBCC India Ltd.
3. It is averred that for completing the said contract, defendant no. 1, under requirement of various construction services and equipment, approached the plaintiff firm and requested to supply various construction services, material and equipment etc. for the barricading and construction of the above mentioned site. The plaintiff supplied the said material to defendant no. 1 as per requirement at the site of Sarojini Nagar, Delhi and raised various invoices for the goods, services and equipment supplied to the defendant no. 1 and after adjusting the paid amount as per the books of accounts of plaintiff, defendant no. 1 withheld a sum of Rs. 95,74,405/-.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 2 of 23
4. It is averred that when plaintiff asked for security of the aforesaid amount, defendant no. 1 handed over three signed cheques without date and amount and signed RTGS/NEFT form to the plaintiff and instructed that when defendant no. 1 would be having sufficient amount in his account, he would ask the plaintiff to transfer the same by using the aforesaid three cheques and RTGS/NEFT forms. It is averred that since then defendant no. 1 did not maintain sufficient amount in his account nor instructed the plaintiff to present the aforesaid cheques in the bank.
5. Plaintiff contacted the defendant no. 1 several times and requested to make the payment on account of invoices in question but defendant no. 1 intentionally and deliberately avoided the same. Thereafter, plaintiff issued legal notice dated 21.01.21 to defendant no. 1 but defendant did not pay a single penny to plaintiff till date.
6. As per the accounts of plaintiff, defendant no. 1 is in default of making payment of Rs. 95,74,405/- alongwith interest @ 18% per annum amounting to Rs. 40,93,000/-.
7. The plaintiff thereafter, filed application under Section 12A of the Commercial Court Act for initiating pre- litigation mediation but since defendant no. 1 did not come forward to make the payment to the plaintiff, a non-starter report was issued. It is averred that defendant no. 2 is a proforma party and no relief has been sought against it. Hence, the present suit CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 3 of 23 has been filed against defendant no. 1 for recovery of an amount of Rs. 95,74,405/- as principal and 40,93,000/- as interest alongwith pendente lite and future interest @ 18% per annum.
8. Both the defendants filed separate written statements.
In the preliminary objections, defendant no. 1 has alleged that the plaintiff company has produced false and fabricated invoices and ledger accounts which does not match with the books of accounts maintained by defendant no. 1 company. Further that the ledger account is not duly certified by the plaintiff as no certificate under Section 65B(4) of the Evidence Act has been filed in support of the invoices and ledger account. The plaintiff has not filed proper court fees with the plaint and the pleadings have not been filed in consonance with the mandate of the Commercial Courts Act, 2015. It is alleged that the plaintiff never did any construction services for the defendant no. 1 and hence, the invoice no. GST-47 dated 23.03.2019 showing construction services for Rs. 65,04,705/- is forged and fabricated.
9. It is alleged that as per confirmation of accounts sent to plaintiff by defendant no. 1 on 15.04.2021, the plaintiff paid in total Rs. 1,69,11,214/-. It is further alleged that the tender was awarded by defendant no. 2 (NBCC) to defendant no. 1 in 2018 but due to Covid-19, defendant no. 1 faced shortage of labour and could not resume construction and hence, the tender was terminated by defendant no. 2 but the defendant no. 1 did not stop payments of the plaintiff and settled the dues in terms of email CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 4 of 23 dated 24.07.2017.
10. Defendant further alleged that the plaintiff had been pressurizing the defendant for payment of dues by filing false complaints against defendant no. 1 in NBCC and in Bhartiya Construction Majdoor Sangh. It is alleged that the invoice no. GST-45 for a sum of Rs. 99,49,996/- was actually of Rs. 64,99,136/- even as per the GST website and plaintiff has raised forged invoice thereby claiming Rs. 99,49,996/- from defendant no. 1.
11. In reply on merits, it is alleged that as per books of accounts maintained by defendant no. 1, only five invoices were raised by the plaintiff against defendant no. 1 i.e. GST-45, GST- 46, GST-52, GST-06 and GST-50 which defendant no. 1 submitted with defendant no. 2 for approval of payments and after receiving payments from defendant no. 2, all the dues of plaintiff were paid. Further it is alleged that GST 47 dated 23.03.2019 for Rs. 65,04,705/- was never raised and the same is forged and fabricated.
12. Further, it is alleged that defendant no. 1 has duly replied the legal notice sent by the plaintiff on 09.02.2021 through its counsel. It is alleged that no cause of action ever arose in favour of plaintiff as all the payment related to the material supplied by the plaintiff has already been made. Other allegations in the plaint were specifically and categorically denied.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 5 of 23
13. Defendant no. 2 also filed written statement taking preliminary objection that no relief has been sought against the defendant no. 2. It is alleged that defendant no. 2 awarded a tender to defendant no. 1 for development of GPRA complex at Sarojini Nagar for which various construction services and equipment were required for which defendant no. 1 approached the plaintiff for supply of construction services etc. Other averments were specifically and categorically denied.
14. The plaintiff filed replication to the written statement of the defendants and all the averments made in the plaint are reiterated and reaffirmed.
15. From the pleadings of the parties, following issues were framed on 04.08.2023 :
1) Whether the plaintiff is entitled for a decree against the defendant in the sum of Rs.95,74,405/- alongwith interest, if any and if yes, at what rate and for which period? OPP
2) Relief.
16. Plaintiff examined six witnesses in its evidence. Shri Sachin Aggarwal - partner of plaintiff firm was examined as PW1, Shri Rajeev Kumar - Data Entry Operator from DM office as PW2, Shri Anil Kumar Rastogi - Part time accountant of plaintiff firm as PW3, Shri Deepak Kumar - Deputy Manager, Kotak Mahindra Bank Ltd. AGCR Enclave, Karkardooma as PW4, Shri CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 6 of 23 Utpal Patel - State Tax Officer, Govt. of Gujarat, Ahmedabad as PW5 and Shri Nirmal Kumar - Assistant Commissioner, Gujarat State GST Department, Ahmedabad as PW6.
17. Shri Sachin Aggarwal - partner of plaintiff company is examined as PW1. He deposed the facts as stated in the plaint, by way of affidavit Ex.PW1/A and tendered in evidence the documents which are as under :
Pre-litigation mediation certificate as Ex. PW1/1. Authorization letter dated 19.03.2021 as Ex. PW1/2.
Partnership deed as Ex. PW1/3.
Original cheque bearing no. 000331 as Ex. PW1/5. Original cheque bearing no. 000339 as Ex. PW1/6. Original cheque bearing no. 000340 as Ex. PW1/7. RTGS/NEFT form as Ex. PW1/8 (colly 3 pages). Legal notice as Ex. PW1/9.
Postal receipt as Ex. PW1/10.
Form A and B of "Register of Firms" as Ex. PW1/11(colly).
Sales details of GSTR-1 as Ex. PW1/12 (colly 11 pages).
Form GSTR-3B as Ex. PW1/13 (colly 2 pages).
Search report of GST no. 24AAFCC5437R1Z7 as Ex. PW1/14 (colly page 14-19).
Value shown on portal of GST for invoice no.
GST-47 as Ex. PW1/15 (colly 2 pages).
Certified copy of invoice no. GST-45, 46, 47, 52, 06 and 50 as Ex. PW1/16 (colly) (Ex. PW1/16A, Ex. PW1/16B, Ex. PW1/16C, Ex. PW1/16D, Ex.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 7 of 23 PW1/16E and Ex. PW1/16F).
Certified copy of confirmation of accounts as Ex. PW1/17.
Certificate of 65B of Indian Evidence Act as Ex. PW1/18.
PW1 Shri Sachin Aggarwal is cross-examined by Ld. Counsel for defendant no. 1.
18. PW2 Shri Rajeev Kumar, Data Entry Operator from DM Office, LM Bund, Branch Registrar of Firms, Shastri Nagar, Delhi - 110031 had brought the summoned record which he tendered in evidence as under :
Certified true copy of receipt dated 12.08.2016 in the name of M/s Sky Scrapers Build Tech Ex. PW2/A. Form A, Register of Firms having registration No. District East/Firm/2016/1546 dated 12.08.2016 in the name of M/s Sky Scrapers Build Tech as Ex. PW2/B. Form B "Rule 8" as Ex. PW2/C. Form No. 1 under Delhi Partnership (Registration of Firms) Rule, 1972 as Ex. PW2/D. PAN Card in the name of M/s Sky Scrapers Build Tech as Ex. PW2/E. Partnership Deed dated 05.07.2014 executed between Smt. Sushil Devi Aggarwal and Shri Sachin Aggarwal as Ex. PW2/F. Aadhaar Card of Shri Sachin Aggarwal as Ex. PW2/G. Affidavit of Shri Manish Aggarwal as Ex. PW2/H. CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 8 of 23 Sale Deed dated 17.05.2014 executed by Shri Ashok Kumar Sahni in favour of Shri Manish Kumar Aggarwal with site plan as Ex. PW2/I. Authority letter in favour of Shri Shailesh Kumar Advocate executed by M/s Sky Scrapers Build Tech as Ex. PW2/J. Affidavit cum no objection given by Shri Sachin Aggarwal as Ex. PW2/K. Sale deed dated 17.05.14 executed by Shri Ashok Kumar Sahni in favour of Shri Sachin Aggarwal with site plan as Ex. PW2/L. Electricity bill in respect of CA No. 151280434 in the name of Shri Sachin Aggarwal as Ex. PW2/M.
19. PW3 Shri Anil Kumar Rastogi S/o Shri Ram Kumar Rastogi, Part Time Accountant of plaintiff company was examined as PW3. He produced the ledger account in respect of Sharnya Infra Pvt. Ltd. maintained by M/s Sky Scrapers Build Tech for the period 01.04.2018 to 26.11.2021 and tendered the same as Ex. PW3/A. PW3 is cross examined by Ld. Counsel for the defendant no. 1.
20. Shri Deepak Kumar, Deputy Manager, Kotak Mahindra Bank Ltd. AGCR Enclave, Karkardooma, Delhi was examined as PW4.
He has tendered in evidence the bank statement in respect of account number 8711774449 in the name of M/s Sharnya Infra Pvt. Ltd. for the period from 16.06.2016 till 08.03.2021 as Ex. PW4/A. PW4 is cross examined by Ld. Counsel for the defendant CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 9 of 23 no. 1.
21. Shri Utpal Patel, State Tax Officer, Govt. of Gujarat, Ahmedabad, Gujarat was examined as PW5.
He has tendered in evidence the record of GST No. 24AAFCC5437R1Z7 registered in the name of M/s Sharnya Infra Pvt. Ltd. for the year 2018-2019 and year 2019-2020 as Ex. PW5/A and Ex. PW5/B respectively.
PW5 is cross examined by Ld. Counsel for the defendant no. 1.
22. Shri Nirmal Kumar, Assistant Commissioner, Gujarat State GST Department, Ahmedabad, Gujarat was examined as PW6.
He has tendered in evidence the tax invoice issued by M/s Sky Scrapers Build Tech, Delhi to M/s Sharnya Infra Pvt. Ltd. as Ex. PW1/16-C. Form GSTR-3B for the month of March 2019 of financial year 2018-2019 in respect of GSTIN- 07AAFCC4537R1Z3 as Ex. PW6/A (3 pages).
Form GSTR-1 GST No. 24AAFCC5437R1Z7 for the month of March 2019 for the financial year 2018-2019 filed on 27.05.2019 as Ex. PW6/B (8 pages).
Letter of Award of NBCC bearing no.
NBCC/ED/SN/2018/10 as Ex. PW6/C. Page 5 of GSTR 2A showing entry of Rs.
65,04,705/- (principal amount of Rs. 55,12,462/- + GST Rs. 9,92,243/-) deposited by Sky Scrapers CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 10 of 23 Build Tech as Ex. PW6/D. Electronic credit ledger of M/s Sharnya Infra Pvt. Ltd. downloaded from the site as Ex. PW6/E. Invoice No. GST47 raised by Sky Scrapers Build Tech as Ex. PW6/F. Form GST DRC-03 dated 29.03.2023, Sharnya Infra Pvt. Ltd. showing the reversal of ITC through GST DRC-03 to Govt. Treasury alongwith 15% penalty as Ex. PW6/G. PW6 is cross examined by Ld. Counsel for the defendant no. 1.
23. Defendant no. 1 examined Shri Saket Shah - Authorized Representative as DW1 who tendered his evidence by way of affidavit Ex. DW1/A. He deposed the facts as stated in the written statement and also tendered in evidence the following documents:-
The extracts of minutes of Meetings dated 02.12.2021 as Ex.DW1/1.
Confirmation of accounts dated 15.04.2021 with ledger account from 01.04.18 to 31.03.2021 as Ex. DW1/2.
Tender EMD ledger account maintained by defendant no. 1 from 01.04.2017 to 31.03.2021 as Ex. DW1/3.
Deduction of NBCC ledger account from 01.04.18 to 31.03.2021 as Ex. DW1/4.
Invoices no. GST. 45 of Rs. 64,99,136/- raised by the plaintiff on defendant no. 1 with screenshot of portal of GST and forged bill filed in court as Ex.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 11 of 23 DW1/5 (colly).
Invoice No. GST-50 and GST 46 & 52 and Invoice No. GST-06 raised by the plaintiff with their value shown on the portal of GST as Ex. DW1/6 (colly 7 pages).
Tax Invoice dated 31.01.2019, 28.02.2019, 31.03.2019 and 30.04.2019 raised by defendant no. 1 on NBCC with RA Bill No. 1 to 4 with measurement sheet, Abstract sheet and summary with approval issued by NBCC as Ex. DW1/7 (colly 44 pages). Email dated 24.07.2017 exchanged between the plaintiff and defendant no. 1 as Ex. DW1/8.
Reply of legal notice dated 09.02.2021 as Mark A. Certificate under Section 65B of Indian Evidence Act as Ex. DW1/9.
DW1 was cross examined by Ld. Counsel for the plaintiff.
24. Defendant no. 1 further examined Shri Anubhav, Deputy Project Manager (Civil), NBCC office, Sarojini Nagar, New Delhi as DW2. He was a summoned witness who brought the summoned record i.e. agreement dated 24.01.2018 executed between NBCC (India) Ltd. and M/s Sharnya Infra Pvt. Ltd., Ahmedabad. He tendered in evidence the following documents:-
Photostat copy of agreement as Mark DW2/A (Objected to by Ld. Counsel for defendant no. 1 that this document should be exhibited). Photostat copy of Show Cause Notice-2 as Mark DW2/B (colly 3 pages) (Objected to by Ld. Counsel for defendant no. 1 that this document should be CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 12 of 23 exhibited).
Photostat copy of Show Cause Notice-Final as Mark DW2/C. (Objected to by Ld. Counsel for defendant no. 1 that this document should be exhibited). Summary of invoices raised by M/s Sharnya Infra Pvt. Ltd., prepared by DW2 Mr. Anubhav as Ex. DW2/1. DW2 was cross examined by Ld. Counsel for the plaintiff.
25. I have heard Shri Ranbir Singh - Ld. Counsel for the plaintiff, Shri Ajay Kumar Chopra - Ld. Counsel for the defendant no. 1 and have also gone through the written submissions filed by the both the Ld. Counsels, as well as records of the case.
My issue-wise findings are as under:
ISSUE No. 1 :
26. The case of the plaintiff is that the defendant has not paid a sum of Rs. 95,74,405/- against the work done by the plaintiff regarding construction service and material and equipment etc. for the barricading and construction at Sarojini Nagar, Delhi in respect of Award for development of GPRA Complex at Sarojini Nagar which was granted by NBCC India Ltd. to defendant no. 1. The plaintiff has raised six invoices number GST-45, dated 30.01.2019 for Rs. 64,99,136/- Ex. PW1/16, GST-46 dated 28.02.19 for Rs. 4749996.00/- Ex. PW1/16B, GST-47 dated 23.03.19 for Rs. 6504705/- Ex. PW1/16C, GST-52 dated 31.03.19 for Rs. 4552353/- Ex. PW1/16D, GST-06 dated 20.04.2019 for Rs. 763670/- Ex.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 13 of 23 PW1/16E, GST-50 dated 26.11.2019 for Rs. 342408/-, Ex. PW1/16F. The invoice GST-47 is with regard to construction services and rest are regarding providing and fixing barricading. As per plaintiff, Rs. 95,74,405/- are due to be paid by the defendant no. 1. As per plaintiff, the defendant has paid Rs. 1,38,37,863/- against the total invoices for Rs. 2,34,12,268/-. Besides other documents, the plaintiff has exhibited his ledger account as Ex. PW3/A and confirmation of accounts as Ex. PW1/17
27. On the contrary, contention of the defendant is that the plaintiff has raised a false and forged invoice GST-47 and the defendant no. 1 is not liable to pay any amount to the plaintiff against said invoice. It is further contended by the defendant that the entire amount i.e. Rs. 1,69,11,214/- has been paid to the plaintiff. The defendant has exhibited his confirmation of accounts as Ex. DW1/2.
28. Thus, it emerges that there is no dispute on the point that NBCC has granted the work of providing and fixing of barricading related to development of GPRA Complex at Sarojini Nagar, New Delhi to defendant no. 1 and the defendant no. 1 has engaged the plaintiff company for this work. It is also admitted that five invoices i.e. GST Nos. 45, 46, 52, 06, & 50, for a total sum of Rs. 1,69,07,563/- were raised by the plaintiff against the work done by it. The defendant has admitted these five invoices.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 14 of 23
29. There is a difference of version of the plaintiff and the defendant with regard to the Invoice No. GST-47 for Rs.65,04,705/- and the remaining payment of Rs. 30,69,705/-, totalling to Rs. 95,74,405/- for which both the parties had raised contradictory claims.
30. First of all, I will take up the first point whether the plaintiff has established that it had correctly raised the aforesaid invoice no. GST-47, dated 23.03.2019 for Rs. 65,04,705/- and provided services/work against the said invoice. Plaintiff has exhibited this invoice as Ex. PW1/16C. PW1 during cross- examination has stated that the defendant no. 1 assigned him the construction related work for Delhi. He further stated that work of barricading at Sarojini Nagar, WHO, ITO was assigned to him. He also stated that construction work included digging work, brick work, cement and concrete work, debris removal work, temporary labour cottages. He admitted during cross-examination that all barricading, construction services and materials supplied were done for the site of GPRA Complex at Sarojini Nagar awarded by the NBCC, India to the defendant no. 1. PW1 further volunteered that it was done at WHO, ITO also. PW1 admitted that invoice GST-47, Ex. PW1/16C was raised in Gujarat. However, supply was not made at Gujarat. PW1 also stated that he did not perform any construction for defendant no. 1 in the territory of Gujarat. He volunteered that on the instructions of defendant no. 1, invoice was raised in the manner as mentioned in the invoice and the GST of Gujarat was supplied to him by defendant no. 1.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 15 of 23
31. PW5 Shri Utpal Patel, State Tax Officer, Govt. of Gujarat during cross-examination has categorically admitted that the GST No. 24AAFCC5437R1Z7 belong to Sharnya Infra Pvt. Ltd. and is of Gujarat State and every state has separate GST Number. PW5 admitted that GST is deposited in the same state where the work is done.
32. PW6 Shri Nirmal Kumar, Asstt. Commissioner, Gujarat State GST Department deposed during cross-examination that the invoice GST-47 is of interstate transaction from Delhi to Gujarat. He stated that the iGST credit passed on by Skyscraper Build Tech Delhi to M/s Sharanya Infra Pvt. Ltd., Gujarat is available as closing balance i.e. unutilized balance in ITC in ECL 2018-19 which cannot be utilized without following provisions of Section 16 of GST Act, 2017, hence, the amount of ITC Rs. 992243/- alongwith penalty of Rs. 148836/- has been reversed by M/s Sharanya Infra Pvt. Ltd. Gujarat in the month of March 2023. PW6 thereafter, stated the conditions as required under Section 16 of Gujarat GST Act, 2017 and Central GST Act, 2017 are required to be complied with to avail any ITC.
33. DW1, Saket Shah has stated in the witness box that no work has been done by the defendant against the invoice GST-
47.
34. The plaintiff failed to explain as to why the invoice GST-47 was bearing the GST Number of Gujarat when no work CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 16 of 23 has been done in Gujarat. He also failed to explain as to what construction work was done by the plaintiff against the said invoice particularly when the other invoices are clearly mentioning under the head 'description of goods' "providing and fixing barricading front side with structural steel framework at the Government GPRA Complex, Sarojini Nagar, New Delhi" and bear the GST Number of Delhi while the invoice GST-47 mentions under the head 'description of goods' as "construction service" without specifying under this head as to where the said services have been provided. Further, the invoice GST-47, Ex. PW1/16C at point Mark A shows the place of work as Gujarat. PW1 has clearly admitted that no work has been done in Gujarat. The plaintiff has failed to place any document on record to show that it had carried out the work in terms of invoice no. GST-47. There is nothing on record to show that the said work was done by the plaintiff as not even the detail regarding the construction work, as mentioned in the said invoice, have been given by the plaintiff. No doubt the defendant has claimed benefit of the aforesaid GST in 2019 which was reversed only in March 2023 for which no satisfactory explanation has been given by the defendant except that he noted the said invoice later on, however, the fact remains that the initial burden is on the plaintiff to prove that it has provided goods/services to the defendant for which the invoices have been raised. The plaintiff has failed to give any convincing reason why it had raised this invoice regarding construction services bearing Gujarat GST number and place of work as Gujarat. PW5, Shri Utpal Patel, Sales Tax Officer, Govt.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 17 of 23 of Gujarat has stated that the GST is the subject matter of the State and is paid in the state where the services have been rendered. Admittedly, no work has been done by the plaintiff in the state of Gujarat. Thus, the necessary conclusion follows that plaintiff has not done any work against the said invoice GST-47 and is consequently, not entitled to any amount against the said invoice.
35. Even otherwise the plaintiff failed to prove its ledger Ex. PW3/A and the confirmation of account Ex. PW1/17 as per law. The ledger Ex. PW3/A and confirmation of account Ex. PW1/17 are the printout of the record maintained in the computer and is electronic evidence and therefore, required to be proved in terms of provisions of Section 65B of Indian Evidence Act.
36. The Hon'ble Apex Court in Anvar PV Vs. PK Basheer (2014) 10 SCC 473 held as under :
"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 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible".
37. In the judgment delivered in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal And Ors. CIVIL APPEAL NOS. 20825-20826 OF 2017, Hon'ble Supreme Court has clarified that the certificate under Section 65B can be CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 18 of 23 furnished at any stage however, the said certificate is mandatory for proving the electronic evidence when the primary evidence cannot be produced in the court. It is also laid down that all the conditions laid down in Section 65B of Indian Evidence Act need to be satisfied for proving an electronic evidence.
38. Plaintiff has filed a certificate under Section 65B of Indian Evidence Act. The certificate under Section 65B Ex. PW1/18 filed by the plaintiff in respect of Electronic Evidence produced by it including Ex. PW1/17 does not contain the necessary conditions as required under Section 65B of Indian Evidence Act particularly the fact that the said computer was used regularly to store or process information for the purposes of any activity regularly carried on over that period and that he was having lawful control over the use of the computer and that information was regularly fed into the computer in the ordinary course of the said activity and that during the material part of the said period computer was operating properly or if not then, in respect of any period in which it was not working properly, it was not such as to affect the electronic record or the accuracy of the contents. The certificate under Section 65B of the Indian Evidence Act is not proper and PW1 despite being given contrary suggestion, did not take any remedial step. Further, PW3 Shri Anil Kumar Rastogi - Part Time Accountant of the plaintiff stated that he had simply taken the print out of ledger account Ex. PW3/A and brought it. In view of the above discussion, I am of the opinion that the ledger account Ex. PW3/A and confirmation of CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 19 of 23 account Ex. PW1/17 filed by the plaintiff have not been proved as per law. The plaintiff also could not prove that confirmation of account, Ex. PW1/17 was provided to defendant, which is apparent from cross examination of PW1 Shri Sachin Aggarwal.
39. It takes us to another question whether the plaintiff is still entitled to any amount in the absence of aforesaid invoice no. GST-47. As per plaintiff, it had received a total payment of Rs. 1,38,37,863/- while the amount against the five admitted invoices is Rs. 1,69,07,563/-. The defendant has admitted all these five invoices which means that defendant no. 1 has availed the services of the plaintiff for the amount covered by these invoices i.e. Rs.1,69,07,563/- and thus, the burden is on the defendant no. 1 to establish that it has paid the said amount particularly when the plaintiff states that only Rs. 1,38,37,863/- have been paid to it. The confirmation of accounts Ex. DW1/2 filed by defendant no. 1 does not inspire confidence as number of payments are shown to have been made to some persons like Ranjeet Kumar, Arun Saini, Manoj Singh without any supporting document in this regard. It is also not established that these persons are related to plaintiff and payment made to these persons shall be deemed as payment to plaintiff. Further some deductions have been made as per NBCC deductions. The ledger Ex. DW1/2 produced by the defendant also cannot be believed for the reasons that the defendant no. 1 has failed to explain and justify the aforesaid deductions in the absence of any contract between the parties to this effect.
CS (Comm) No. 149/2021Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 20 of 23
40. The defendant sought to rely upon an email dated 24.07.2017 Ex. DW1/8 to establish that it had passed on the deductions made by NBCC to the plaintiff and deducted this amount from the plaintiff's account. The said email dated 24.07.17 Ex.DW1/8 is denied by the plaintiff and further, it refer to some SSK and nowhere in the said email name of the plaintiff is written. Even otherwise, the defendant failed to establish that the plaintiff will be liable for the deductions made by the NBCC. Admittedly, there is no written contract between the plaintiff and the defendant regarding the aforesaid work done by the plaintiff. Thus, the defendant no. 1 failed to establish that deductions made by it towards amount deducted by NBCC was as per any agreement between the parties.
41. The ledger Ex. DW1/2 produced by the defendant also does not contain the entry regarding the invoice GST-47 which was raised by the plaintiff. DW1 Shri Saket Shah admitted that the GST benefit against invoice GST-47 was availed by the defendant and only in March 2023 it was reversed by the defendant and paid the GST availed by the defendant alongwith the penalty of Rs. 1,48,836/-. The said invoice GST -47 is not reflecting in the said ledger nor the reverse entry is reflecting therein. Shri Saket Shah, DW1, during cross-examination admitted that plaintiff had done same work at WHO, IP Estate and Naroji Nagar. However, the account statement Ex. DW1/2 does not have any mention of invoice or payment made against these works. Further, the defendant failed to produce its bank statement CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 21 of 23 to establish that it had paid the entire amount i.e. 1,69,11,214/- to the plaintiff.
42. Thus, even as per the statement of account Ex. DW1/2, the defendant had not paid the entire amount i.e. Rs. 1,69,11,214/- as stated by the defendant as various payments have been made to different above named persons which cannot be said to be the payment made to the plaintiff and further the aforesaid deductions made by the defendant towards the NBCC deductions is also the amount which was not paid to the plaintiff and the said amount comes to Rs. 18,89,448/-. Thus, it is clear that defendant did not pay the total amount of Rs. 1,69,11,214/- to plaintiff which as per defendant was due against the work done by plaintiff. Since burden is on defendant to establish that it had paid entire amount of Rs. 1,69,11,214/- which defendant failed to discharge, the version of plaintiff that defendant paid Rs. 1,38,37,863/- has to be believed and the defendant is liable to pay the difference amount i.e. Rs.1,69,07,563/- - Rs. 1,38,37,863/-, which comes to Rs.30,69,700/-.
43. Ld. Counsel for the plaintiff submitted that the defendant has given three blank cheques alongwith filled RTGS/NEFT forms towards outstanding dues however, whenever the plaintiff checked, it was found that the defendant was not having sufficient balance in his account and for this reason he did not present these cheques. The plaintiff although stated that the aforesaid cheques and RTGS forms were given to the plaintiff by CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 22 of 23 the defendant towards outstanding dues but it is not clear what amount was to be filled in these cheques. The plaintiff examined PW4 Shri Deepak Kumar to establish that there was no sufficient balance in the account of the defendant hence, he did not present these cheques and RTGS/NEFT forms. It has already been observed that these are the blank cheques and blank RTGS/NEFT forms and it does not establish that the total amount as claimed by the plaintiff was due to be paid by the defendant no. 1.
44. Thus, in view of the above, plaintiff is entitled to sum of Rs.30,69,700/- alongwith interest @ 18% per annum in terms of the invoices Ex. PW1/16A, Ex. PW1/16B, Ex. PW1/16D, Ex. PW1/16E and Ex. PW1/16F, from the date of last invoice i.e. 26.11.2019 till the date of filing the present suit i.e. 07.09.2021 which comes to Rs.9,66,955.50/-.
ISSUE No.3/Relief :
45. In light of the above discussion and findings on the above issues, suit of the plaintiff is decreed in its favour and against defendant no. 1 and defendant no. 1 is liable to pay to plaintiff a sum of Rs.40,36,655.50/- alongwith interest @ 18% per annum, from the date of filing the suit till realization of the actual amount. Costs of suit are also awarded to plaintiff. Decree Sheet be prepared accordingly. File be consigned to Record Room.Digitally signed by
ANNOUNCED IN OPEN COURT ARVIND ARVIND KUMAR Location: Delhi ON 22nd day of March 2024 KUMAR Date: 2024.03.22 15:43:14 +0530 (ARVIND KUMAR) District Judge (Commercial Court-01) East District Karkardooma Courts, Delhi CS (Comm) No. 149/2021 Sky Scraper Build Tech vs Sharnya Infra Pvt. Ltd. 23 of 23