Delhi District Court
Ajay Jain vs Manoj Ji on 27 October, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS NO 507/16
CNR NO DLNE01-003923-2016
COUNTER CLAIM 302/17
CNR NO DLNE01-010009-2016
AJAY JAIN
PROPRIETOR OF PARAS NATH TRADERS
C-122, STREET NO 20
DAYALPUR EXTENSION
KARAWAL NAGAR
DELHI-110094
..... PLAINTIFF
V
1. MANOJ JI
...DEFENDANT NO 1
2. VIPIN SHEORAM
PROPRIETOR OF SUNRISE ENTERPRISES
.....DEFENDANT NO 2/
COUNTER CLAIMANT
H-112, GALI NO 6
NEW GANGA VIHAR
DELHI-110094
(DEFENDANT NO 2 IMPLEADED AS NECESSARY PARTY VIDE ORDER
DATED 24.01.2017)
INSTITUTION: 06.10.2016
ARGUMENTS: 16.10.2020
JUDGMENT:27.10.2020 CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 1/19 SUIT FOR RECOVERY OF RS.4,89,000/-
(Rs FOUR LACS EIGHTY NINE THOUSAND) JUDGMENT
1. The civil remedy for recovery of money is to institute a suit in the court of appropriate jurisdiction. A civil suit is an effective legal remedy for recovery money. The plaintiff filed the present suit for recovery of Rs.4,89,000/- against the defendants by pleading as under:-
The plaintiff is proprietor of Paras Nath Traders, C-122, Street No 20, Dayalpur Extension, Karawal Nagar, Delhi-110094 registered under Delhi Value Added Tax-2004 and Central Sales Tax (Registration & Turn Over Rules, 1957). The defendant no 2 is proprietor of Sunrise Enterprises H-112, Gali No. 8, New Ganga Vihar, Delhi-110094. The defendant no 2 during Financial Year 2015-2016 purchased Aluminum Ingots amounting to Rs.23,41,795/- and paid Rs.18,52,795/- and did not pay balance amount of Rs.4,89,000/- despite legal notice dated 05.08.2016 which was replied by the defendant no 2 wherein falsely stated that he received Aluminum Ingots worth Rs.16,15,274/- but paid Rs.19,00,315/-. The plaintiff sent a rejoinder to reply of legal notice dated 05.08.2016 but the defendant no 2 did not pay outstanding amount to the plaintiff. The plaintiff being aggrieved filed present suit for recovery of Rs. 4,89,000/- and prayed for passing of decree for recovery of Rs.4,89,000/- against the defendant no. 2 along with pendente lite and future interest @ 18 % per annum with effect from filing of present suit till realization along with costs.
2. The defendant no 1 filed the written statement and contested the claim of the plaintiff. The defendant no 1 in preliminary objections stated that the defendant no 1 never contracted any transaction or business trade with the plaintiff. There is no legal liability on the defendant no 1 with regard to any transaction with the plaintiff. The defendant no1 neither received any legal notice sent by the plaintiff nor replied said notice. The defendant no 2 who is the proprietor of Sunrise Enterprises replied legal notice. The present suit is not maintainable as plaintiff has not appeared with clean hands and mentioned false facts to get wrongful gain and to cause wrongful loss to the defendant no 1. The suit is bad for misjoinder of parties. There is no cause of action in favor of the plaintiff and suit is not maintainable under Order VII Rule 11 CPC. The suit is liable to be dismissed. The defendant no 1 in preliminary submissions CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 2/19 stated that he is running business under name and style of Mayur Sales and Products. The defendant no 1 is not proprietor of Sunrise Enterprises. The defendant no 1 on reply to merits denied other allegations of the plaintiff.
The defendant no 2 was impleaded vide order dated 24.01.2017. The defendant no. 2 filed written statement and contested claim of the plaintiff. The defendant no 2 in preliminary objections stated that plaintiff has not appeared with clean hands and concealed material facts. The present suit is liable to be rejected under Order VII Rule 11 CPC being without cause of action. The defendant no 2 in preliminary submissions stated that the plaintiff entered into business transaction of Aluminum Ingots with the defendant no 2 during the year 2015-16. The first transaction entered on 18.05.2015 and last transaction was made on 16.10.2015. The defendant no 2 received Aluminum Ingots amounting to Rs 16,15,274/- during the said period whereas paid Rs.19,00,315/- and as such the defendant no 2 paid Rs 2,85,041/- in advance for Aluminum Ingots but the plaintiff did not send Aluminum Ingots against advance payment of Rs.2,85,041/-. The defendant no. 2 in reply on merits denied other allegations of the plaintiff.
3. The plaintiff fled replication to the written statement of defendant no 2 wherein reiterated facts as stated in the plaint.
4. The defendant no 2 (hereinafter referred to as "the defendant no 2/counter claimant) filed counter claim of Rs 2,85,041/- against the plaintiff registered as CS 302/17 by pleading that the plaintiff supplied Aluminum Ingots worth Rs. 16,15,274/- to the defendant no 2/counter claimant but the defendant no 2/counter claimant paid Rs. 19,00,315/-. The defendant no 2/counter claimant as such made advanced payment of Rs. 2,85,041/- to the plaintiff which the plaintiff is liable to pay along with interest @ 24% per annum. The plaintiff filed reply to counter claim and denied liability to pay amount as claimed in counter claim.
5. Vide order dated 19.12.2017 following issues were framed:-
1. Whether the suit of plaintiff is bad for misjoinder and non-joinder of the necessary parties? OPD
2. Whether the plaintiff is entitled to recover an amount of Rs.4,89,000/-
from the defendant, as prayed in the plaint? OPP CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 3/19
3. Whether the plaintiff is entitled to claim interest from the defendant, if so, at what rate and for which period? OPP
4. Whether the defendant is entitled to claim a sum of Rs.2,85,041/- as claimed in his counter claim (separately registered as CS No. 302/17)? OPD
5. Whether the defendant is entitled to claim interest on the aforesaid amount of Rs.2,85,041/- as claimed in his counter claim, if so, at what rate and for which period? OPD
6. Relief.
6. The common evidence was ordered to be recorded in main suit bearing no 507/16 vide order dated 19.12.2017.
The plaintiff examined him as PW-1, Prashant Luthra, Chartered Accountant as PW2 and Anil Kumar Arya, Senior Manager, Canara Bank as PW3. The plaintiff as PW1 filed affidavit in evidence which is Ex. PW1/A and relied on documents which are Ex.PW1/1 to Ex.PW1/9. PW2 Parshant Luthra produced Ledger Account of Sunrise Enterprises along with Return Verification Form and Delhi Value Added Tax Return both dated 27.11.2015 pertaining to Paras Nath Traders for period with effect from 01.07.2015 to 30.09.2015 including Return of Sales Tax and Summary of Sales which is Ex. PW2/A. PW3 Anil Kumar Arya produced statement of account no 0271 261004774 in name of Paras Nath Traders for period with effect from 08.06.2015 to 31.10.2015 which is Ex. PW3/A and Certificate under section 65 B of Evidence Act, 1872 as Ex. PW3/B. The plaintiff's evidence was ordered to be closed vide order dated 03.01.2019.
The defendant no 1 and 2 examined them as DW1 and DW2 and tendered respective affidavit in evidence which are Ex. DW1/A and Ex. DW2/A respectively. The defendant no 1 as DW1 relied on documents which are Ex. DW1/1 and Ex. DW1/2. The defendant no 2/counter claimant as DW2 relied on documents which are Ex. DW2/1 and Ex. DW2/2. The evidence of the defendants was ordered to be closed vide order dated 01.11.2019.
7. Sh. J. P. Jain, Advocate for the plaintiff and Sh. Gaurav Dalal, Advocate for the defendants heard. The counsels for the plaintiff and the defendants also filed written arguments which are considered. Record perused.
CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 4/19
8. The burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another,VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 5/19 evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 decided on 13th May, 2011 by the Supreme Court observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
ISSUE WISE FINDINGS ARE AS UNDER ISSUE NO 1 Whether the suit of plaintiff is bad for misjoinder and non-joinder of the necessary parties? OPD
9. A civil case starts with institution of the case by one party against another party and the competent court decides the rights and liabilities of the parties. Order I of the Code of Civil Procedure, 1908 deals with parties to the suit and also contains provisions for addition, deletion and substitution of parties, joinder, non-joinder and misjoinder of parties and objections to misjoinder and non-joinder. Rule 1 deals with who may be joined as plaintiffs. Rule 3 deals with who may be joined as defendants. It reads as under:-
3. Who may be joined as defendants.--All persons may be joined in one suit as defendants where-- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. The question of joinder of parties arises only when an act is done by two or more persons or it affects two or more persons. In misjoinder of parties if two or more persons are joined as plaintiffs or defendants in one suit in contravention of order 1 Rules 1 and 3 and are neither necessary nor proper parties. Order I Rule 9 provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. It reads as under:-
CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 6/19
9. Misjoinder and nonjoinder.--No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
10. The plaintiff as proprietor of Paras Nath Traders initially filed present suit against the defendant no 1 and subsequently the defendant no 2, proprietor of Sunrise Enterprises was ordered to be impleaded vide order dated 24.01.2017. The defendant no 1 in written statement stated that the defendant no 1 never contracted any transaction or business trade with the plaintiff. The defendant no 1 is running business under name and style of Mayur Sales & Products and is not proprietor of Sunrise Enterprises. The suit is bad for misjoinder of parties. The counsel for the defendants also argued that the suit is bad for misjoinder of parties. The defendant no 1 does not have any legal liability towards the plaintiff as the defendant no1 never contracted any transaction or business trade with the plaintiff. The counsel for plaintiff argued to contrary.
The plaintiff as PW1 in cross examination denied suggestions that the defendant no 1 is not liable to pay any amount to the plaintiff and the plaintiff entered into business transactions with defendant no 2, proprietor of Sunrise Enterprises or that defendant no.1 is not proprietor of Sunrise Enterprises. The plaintiff was not having knowledge that the defendant no 1 was doing business under name and Style of Mayur Sales and Products. The defendant no 1 in cross examination denied the suggestion that he informed the plaintiff about running of his business under names and styles of Mayur Sales and Products and Sunrise Enterprises. The respective evidence of the plaintiff and the defendant no 1 including cross examination does not prove that the plaintiff supplied Aluminum Ingots subject matter of present suit to the defendant no 1. The defendant no 1 might be having business dealings with the defendant no 1 as reflected from Ex. DW1/2 but the defendant no 1 did not enter into any of the transactions with the plaintiff subject matter of present suit. It is proved from Form DP-1 issued by Department of Trade and Taxes, Government of NCT of Delhi Ex. DW1/1 that the defendant no 1 was running his business under name and style of Mayur Sales & Products while case of the plaintiff is that he supplied Aluminum Ingots to Sunrise Enterprises of which the defendant no 2 is proprietor. There is no evidence to prove that the plaintiff had CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 7/19 business dealings with the defendant no 1 and the defendant no 1 is liable to discharge any liability towards the plaintiff subject matter of present suit. The defendant no 1 is not a necessary party in present suit. Issue no 1 is decided accordingly.
ISSUE NO 2 AND 4
2. Whether the plaintiff is entitled to recover an amount of Rs.4,89,000/- from the defendant, as prayed in the plaint? OPP
4. Whether the defendant is entitled to claim a sum of Rs.2,85,041/- as claimed in his counter claim (separately registered as CS No. 302/17)? OPD
11. Issue no 2 and 4 shall be decided by common findings. The burden was on the plaintiff to prove that he supplied Aluminum Ingots worth Rs. Rs.23,41,795/- which includes sale price, VAT and cartage to the defendant no 2/counter claimant and the defendant no 2/counter claimant only paid Rs.18,52,795/- but did not pay balance amount of Rs.4,89,000/-. The defendant no 2/counter claimant has to prove that the plaintiff only supplied Aluminum Ingots worth Rs. 16,15,274/- but the defendant no 2 paid Rs. 19,00,315/- and as such the plaintiff is liable to pay back excess amount of Rs. 2,85,041/- to the defendant no 2/counter claimant. The plaintiff and the defendant no 2/counter claimant to substantiate, justified and prove their claims against each other primarily relied on entries in ledger account stated to be maintained by them in ordinary course of business.
12. Section 34 of the Evidence Act, 1872 deals with relevancy of entries in books of account including those maintained in an electronic form] when relevant. It reads as under:-
34. Entries in the books of account, including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any per-
son with liability.
Illustration A sues B for Rs. 1,000, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.
Section 34, an exception to section 21which provides that a person cannot make evidence for him, provides that entries in books of account including those maintained CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 8/19 in an electronic form regularly kept in the course of business, by a person, alive or dead, are relevant, whenever they refer to a matter into which the court has to enquire. It is not sufficient to charge any person with liability unless some independent evidence is given. The evidentiary value of entries of account books depends on corroboration by other evidence despite entries are regularly kept and maintained by writer who has full knowledge, no motive to falsehood, and there is the strongest improbability of untruth. The original entries alone under sec. 34 would not be sufficient to charge any person with liability. The corroborative evidence must have minimum probative value. This corroborating evidence might be in any form like receipts, vouchers, bills or even oral evidence of witnesses having personal knowledge of the affairs of the transactions. The veracity of accounts books cannot be doubted on ground that day books supporting ledger entries and person who made said entries in ledger books were not produced. The Supreme Court in Ishwar Dass Jain V Sohan Lal, AIR 2000 SC 426 observed as under:-
It will be noticed that sanctity is attached in the law of evidence to books of account if the books are indeed "account books i.e. in original and if they show, on their face, that they are kept in the "regular course of business". Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts are not filed into Court. This is because, from the extracts, it cannot be discovered whether the accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in a different ink or whether the accounts are in the form of a book with continuous page-numbering.
In the recent judgment of this Court in Central Bureau has been laid down that for purposes of Section 34, 'Book' ordinarily means a collection of sheets of paper or other material, blank, written or printed, fastened or bound together so as to form a material whole. Loose sheets of paper or scraps of paper cannot be termed as 'book' for they can be easily detached and replaced. It has also been held that the rationale behind admissibility of parties' books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection give them in a sufficient degree, a probability of trustworthiness."
In Jagdish Kumar V Ram Parkash Aggarwal, RSA No 3794 of 2003 decided by 25th April, 2006 by the High Court of Punjab & Haryana the respondent filed a suit against the appellant for the recovery on plea that the appellant had been purchasing sugar in huge quantity from him and used to make payment regularly but later on CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 9/19 failed to do so. The outstanding amount was continuously shown in account books of the respondent. The respondent proved a copy of the ledger being maintained and prepared in ordinary course of his business regularly. The copies of the bills were also proved. The trial Court after relying on provisions of Section 34 of the Evidence Act decreed the suit vide impugned judgment and decree. The appellant filed an appeal which was dismissed by the Lower Appellate Court. The High Court observed that Section 34 of the Indian Evidence Act and illustration clear reflected beyond doubt that the suit cannot be decreed merely on the basis of entries in the account books. The judgments of both the Courts below have been passed against the appellant on basis of entries in account books allegedly maintained by the respondent. The only other evidence was copies of bill books but those were also maintained by the respondent and these evidences at the most amounted to admission in one's own favour. It was observed that the respondent neither proved signatures of the appellant in his account books to prove past dealings nor proved any receipt which might have been obtained from the respondent in token of having received articles. The bill books were also considered to be self-created evidence. The appeal was accepted and the suit of the respondent was ordered to be dismissed. It was observed as under:-
So far as entries in the account books are concerned, the books may be regularly maintained in the ordinary course of business but the entries in the account books are self-created evidence. The provisions of Section 34 of the Indian Evidence Act clearly lay down that these entries may create a presumption, but, these entries alone are not sufficient to hold any person liable.
13. The plaintiff pleaded and deposed in affidavit Ex. PW1/A that the defendant no 2/counter claimant being proprietor of Sunrise Enterprises purchased Aluminum Ingots worth Rs.23,41,795/- which includes sale price, VAT and cartage during Financial Year 2015-2016 and paid only Rs.18,52,795/- but did not pay balance amount of Rs.4,89,000/- despite legal notice dated 05.08.2016 Ex. PW1/4 which was replied by the defendant no 2/counter claimant vide reply Ex. PW1/6. The plaintiff also relied on Ledger Account Ex. PW1/1, Quarterly Delhi Value Added Tax Returns Ex. PW1/2, copies of Tax Invoice/Bill Ex. PW1/3 and Statement of Bank Account for period with effect from 08.06.2015 to 31.10.2015 Ex. PW1/9.
14. The defendant no 2/counter claimant alleged in written statement and deposed in affidavit Ex. DW2/A that the plaintiff entered into business transactions of Aluminum Ingots with the CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 10/19 defendant no 2/counter claimant during the year 2015-16 and first transaction entered on 18.05.2015 while last transaction was made on 16.10.2015. The defendant no 2/counter claimant received Aluminum Ingots amounting to Rs. 16,15,274/- but paid Rs.19,00,315/- and as such the defendant no 2/counter claimant paid Rs. 2,85,041/- in advance but the plaintiff did not send Aluminum Ingots against advance payment of Rs.2,85,041/-. The defendant no 2/counter claimant in counter claim prayed for recovery of Rs 2,85,041/- along with interest @ 24% per annum against the plaintiff. The plaintiff in reply to counter claim and affidavit Ex. PW1/A denied liability to pay Rs. 2,85,041/- to the defendant no 2/counter claimant. The defendant no 2/counter claimant relied on Summary of Purchase/Inward Branch Transfer Register Ex. DW2/1 and Ledger Account pertaining to the plaintiff Ex. DW2/2.
15. The counsel for the plaintiff argued that Ledger Account Ex. PW1/1 and Quarterly VAT Return Ex. PW2 proved that the plaintiff supplied Aluminum Ingots to the plaintiff as mentioned in Ledger Account Ex. PW1/1 and also relied on copies of Invoice Tax/Bill Ex. PW1/3. The counsel for the defendants argued the plaintiff did not lead reliable and concrete evidence against the defendant no 2 to prove his case and claim of the plaintiff for Rs.4,89,000/- is baseless.
It is apparent from respective pleadings, documents and evidences of the plaintiff and the defendant no 2 that the plaintiff was running business of Ferrous and Non Ferrous Metals and Chemicals under name and style of Paras Nath Traders as proprietor. The defendant no 2 was running business under name and style of Sunrise Enterprises as proprietor. The plaintiff and the defendant no 2 in past had business dealings with each other and the plaintiff was supplying Aluminum Ingots to the defendant no 2/counter claimant. The perusal of Ledger Account Ex. PW1/1 relied on by the plaintiff reflects that the plaintiff supplied Aluminum Ingots total amounting to Rs. 23,41,795 which includes sale value, VAT and cartage and the defendant no 2 paid Rs. 18,52,795/- leaving behind balance of Rs. 4,89,000/- which is claimed by the plaintiff. The Ledger Account Ex. PW1/1 also reflects that the defendant no 2/counter claimant paid Rs. 1,65,000/- to the plaintiff on 20.06.2015. The plaintiff for first time supplied Aluminum Ingots worth Rs. 2,88,001 to the defendant no 2/counter claimant on 05.07.2015 and lastly supplied Aluminum Ingots worth Rs. 2,37,523/- on 24.09.2015 to the defendant no 2. The plaintiff in affidavit Ex.PW1/A mentioned details of transactions with the defendant no 2/counter claimant as detailed in Ledger Account Ex.
CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 11/19 PW1/1 and deposed that the plaintiff supplied Aluminum Ingots worth Rs. 2,88,001/- on 05.07.2015, Rs. 3,26,998/- on 08.07.2015, Rs. 3,00,000/- on 16.07.2015, Rs. 3,26,004/- on 12.08.2015, Rs. 3,74,271/- on 17.08.2015, Rs. 2,26,998/- on 03.09.2015, Rs. 2,62,000/- on 07.09.2015 and Rs. 2,37,523/- on 24.09.2015 total amounting to Rs. 23,41,795 which includes sale value, VAT and cartage and received payments of Rs. 1,65,000/- on 29.06.2015, Rs. 3,00,000/- on 06.07.2015, Rs. 1,50,000/- on 14.07.2015, Rs. 2,50,000/- on 20.07.2015, Rs. 1,00,000/- on 29.07.2015, 1,50,000/- on 11.08.2015, Rs. 3,00,000/- on 22.08.2015, Rs. 1,60,000/- on 10.09.2015, Rs. 1,50,000/- on 21.09.2015 and 1,27,995/- on 16.10.2015 total amounting to Rs. 18,52,795/-. The defendant no 2/counter claimant as such is liable to pay balance amount of Rs. 4,89,000/- to plaintiff. The plaintiff to corroborate and support entries relating to various transactions between the plaintiff and the defendant no 2/counter claimant as mentioned and detailed in Ledger Account Ex. PW1/1 filed and relied on copies of Tax Invoice/Bill Ex. PW1/3. The perusal of Ledger Account Ex. PW1/1 and copies of Tax Invoice/Bill Ex. PW1/3 reflects that details of Aluminum Ingots supplied to the defendant no 2/counter claimant as mentioned in copies of Tax Invoice/Bill Ex. PW1/3 are exactly matching with entries as mentioned in Ledger Account Ex. PW1/1. The Ledger Account Ex. PW1/1 and copies of Tax Invoice/Bill Ex. PW1/3 are self-created documents of the plaintiff and as such required corroboration from independent evidences as mandated in section 34 of the Evidence Act, 1872 and observed in Jagdish Kumar (supra).
16. The counsel for the defendants argued that the defendant no 2 in admission and denial of the documents denied three bills dated 03.09.2015, 17.09.2015 and 24.092015 amounting to Rs. 2,26,998/-, 2,62,000/- and 2,37,523/- respectively and said bills are not showing receipt of Aluminum Ingots by the defendant no.2. The cross examination of the plaintiff as PW1 reflects that that the plaintiff in course of business used to prepare Tax Invoices/Bills in triplicate which are in white, pink and yellow colors. The white copy of Tax Invoice/Bill Ex. PW1/3 is usually sent to the buyer. The pink and yellow copies are usually retained by seller for record and preparation of Sales Tax and Income Tax Return. The defendant no 2 during admission and denial of documents conducted vide proceedings dated 19.12.2017 admitted pink copies of Tax Invoice/Bill dated 05.07.2015 bearing book no 01 invoice no 009 amounting to Rs. 2,88,001/, dated 08.07.2015 bearing book no 01 invoice no 010 amounting to Rs. 3,26,998/-, dated 16.07.2015 bearing book no 01 invoice no 012 amounting to Rs.
CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 12/19 3,00,000/-, dated 12.08.2015 bearing book no 01 invoice no 015 amounting to Rs. 3,26,004/- and dated 27.08.2015 bearing book no 01 invoice no 017 amounting Rs. 3,74,271/- total amounting to Rs. 16,15,274/- but denied copies of Tax Invoice/Bill dated 03.09.2015 bearing book no 01 invoice no 020 amounting to Rs. 2,26,998/, dated 17.09.2015 bearing book no 01 invoice no 025 amounting to Rs. 2,62,000/- and dated 24.09.2015 bearing book no 1 invoice no 028 amounting to Rs. 2,37,523/- total amounting to Rs. 7,26,521. It is true that there is no acknowledgement of receipts of Aluminum Ingots by the defendant no 2/counter claimant in any of copies of Tax Invoice/Bill Ex. PW1/3. However the defendant no 2/counter claimant admitted copies of Tax Invoice/Bill dated 05.07.2015, 08.07.2015, 16.07.2015, 12.08.2015 and 27.08.2015 which are also not having acknowledgment/endorsement of receipt of Aluminum Ingots by the defendant no 2/counter claimant. It reflects that the defendant no 2/counter claimant was receiving Aluminum Ingots from the plaintiff without formal endorsing or acknowledging of receipt of Aluminum Ingots. There is no reason to disbelieve copies of Tax Invoice/Bill dated 03.09.2015, 17.09.2015 and 24.09.2015 stated to be issued by the plaintiff in respect of Aluminum Ingots supplied to the defendant no 2/counter claimant. All Tax Invoices/Bills Ex. PW1/3 were issued out of Book no 1 and invoice are also in serial. There is nothing in cross examination of the plaintiff which can raise doubts as to genuineness of copies of Tax Invoice/ Bill dated 03.09.2015, 17.09.2015 and 24.09.2015 and the plaintiff was also not materially cross examined to dispute genuineness of Tax Invoices/Bills Ex. PW1/3 and. It appears that the plaintiff also supplied Aluminum Ingots to the defendant no 2/counter claimant vide Tax Invoices/Bills dated 03.09.2015, 17.09.2015 and 24.09.2015. The arguments as advanced by the counsel for the defendants are without any legal and factual support and basis.
17. The plaintiff to support Ledger Account Ex. PW1/1 and copies of Tax Invoice/Bill Ex. PW1/3 examined Prashant Luthra, Chartered Accountant as PW2 and Anil Kumar Arya, Senior Manager, Canara Bank as PW3. The counsel for the defendants argued that the testimony of PW2 Parshant Luthra, Chartered Accountant is not supported by certificate under section 65B of the Evidence Act, 1872.
PW2 Parshant Luthra produced Ledger Account pertaining to Sunrise Enterprises along with Return Verification Form of Paras Nath Traders and Delhi Value Added Tax Return dated 27.11.2015 for period with effect from 01.07.2015 to 30.09.2015 including Return of CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 13/19 Sales Tax and Summary of Sales which is Ex. PW2/A. Ledger Account Ex. PW2/A maintained by PW2 Parshant Luthra is replica of Ledger Account Ex. PW1/A and was maintained by PW2 Parshant Luthra in ordinary course of his official work. Ledger Account Ex. PW2/A also reflects that Rs. 4,89,000/- are due towards the defendant no 2 as proprietor of Sunrise Traders. PW2 Parshant Luthra was not cross examined regarding genuineness of Ledger Account Ex. PW2/A. The right of cross-examination is one of the most powerful instrumentalities in the conduct of litigation. The cross examination is not merely a technical rule of evidence but it is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice. It was observed in A.E.G. Carapiet V A. Y. Derderian, AIR1961Cal.359 that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all. The Supreme Court in M.B Ramesh V K.M Veeraje, 2013 (2) RCR Civil 932 also reiterated similar legal view. The defendant no 2 in cross examination admitted that first transaction with the plaintiff took place on 05.07.2015 vide bill no.9 dated 05.07.2015 for an amount of Rs.2,88,001/- which support and fortified stand of the plaintiff.
Return Verification Form (Ex. PW1/8), Delhi Value Added Tax Return (Ex. PW1/2) both dated 27.11.2015 for period with effect from 01.07.2015 to 30.09.2015 including Return of Sales Tax under Central Sales Tax Act, 1956 and Summary of sales which are part of Ex. PW2/A are perused and perusal of these documents reflects that the plaintiff paid requisite tax on sale amounting to Rs. 22,22,617/- made to Sunrise Enterprises of which the defendant no 2 is proprietor during second quarter with effect from 01.07.2015 to 30.09.2015 which also corroborate and support claims of the plaintiff regarding sale and supply of Aluminum Ingots to the defendant no 2.
18. The counsel for the defendants argued that PW3 Anil Kumar Arya only produced bank statement of the plaintiff for period with effect from 08.06.2015 to 31.10.2015 but the plaintiff did not produce statement for period with effect from 18.05.2015 to 31.10.2015 to show that one transaction between the plaintiff and the defendant no 2 took place on 18.05.1015. PW3 Anil Kumar Arya produced record of bank account no 0271 261004774 operational in Canara Bank in name of Paras Nath Traders for period with effect from 08.06.2015 to 31.10.2015 which is Ex. PW3/A (Ex.PW1/9) along with Certificate under section 65B of Evidence Act, CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 14/19 1872 Ex. PW3/B. The perusal of statement of account Ex. PW3/A (Ex. PW1/9) reflects that the defendant no 2 made payments to the plaintiff as mentioned in Ledger Account Ex. PW1/1(Ex. PW2/A) which again support and corroborate claim of the plaintiff. After considering evidence led by the plaintiff and the defendant no 2 it is proved that the plaintiff supplied Aluminum Ingots worth Rs. 23,41,795/- but the defendant no 2 paid on Rs. Rs. 18,52,795/- as reflected from Ledger Account Ex. PW1/1(Ex. PW2/A) and as such the defendant no 2 is liable to pay Rs. 4,89,000/- to the plaintiff.
19. Regarding counter claim, the defendant no 2 alleged in written statement and deposed in affidavit Ex. DW2/1 that The first transaction with the plaintiff entered on 18.05.2015 while last transaction was made on 16.10.2015 and the defendant no 2/counter claimant paid Rs. 19,00,315/- to the plaintiff against supply of Aluminum Ingots worth Rs. 16,15,274/- and as such the defendant no 2/counter claimant made advanced payment of Rs. 2,85,041/- to the plaintiff which the plaintiff is liable to pay along with interest @ 24% per annum. The plaintiff denied his liability to pay Rs. 2,85,041/- to the defendant no 2. The defendant no 2 relied on Summary of Purchase/Inward Branch Transfer Register Ex. DW2/1 and Ledger Account in respect of Paras Nath Traders Ex. DW2/2. The counsel for the defendants also argued that the plaintiff entered into business transaction of Aluminum ingots with the defendant no 2 during the year 2015-16 and first transaction took place on 18.05.2015 and last transaction took place on 16.10.2015. The defendant no 2 received Aluminum Ingots worth Rs.16,15,274/- but paid Rs.19,00,315/- and as such paid Rs.2,85,041/- in advance.
The perusal of Ledger Account Ex. DW2/2 reflects that the defendant no 2 paid Rs. 19,00,315/- against receipt of material amounting to Rs. 16,15,274/- and as such paid the defendant no 2 paid Rs. 2,85,041/- in excess to the plaintiff. The perusal of Summary of Purchase/Inward Branch Transfer Register Ex. DW2/1 reflects that the defendant no 2 purchased material worth Rs. 15,33,598/- excluding VAT during Tax Period with effect from 01.07.2015 to 30.09.2015 from the plaintiff and paid Input Tax amounting Rs. 76,680/-. The documents i.e. Summary of Purchase/Inward Branch Transfer Register Ex. DW2/1 and Ledger Account Ex. DW2/2 are self-created documents of the defendant no 2 and required to be corroborated from other evidence as per section 34 of the Evidence Act. The defendant no 2 in cross examination admitted that the first transaction with the plaintiff took place on 05.07.2015 vide bill no.9 dated 05.07.2015 amounting Rs. 2,88,001/- but denied suggestions CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 15/19 that he never made any advance payment to the plaintiff or that amount of Rs.2,85,041/- is not payable by the plaintiff. The defendant no 2 admitted that he used to make advance payment for each and every transaction. The defendant no 2 did not lead corroborating evidence to support Summary of Purchase/Inward Branch Transfer Register Ex. DW2/1 and Ledger Account Ex. DW2/2 and to prove that he used to make advance payment to the plaintiff. The defendant no 2 did not call or examine any witness from concerned bank and also did not examine concerned chartered accountant to substantiate his claim. The plaintiff in cross examination denied suggestions that the defendant no. 2 purchased Aluminum Ingots worth Rs.16,15,274/- and paid total amount of Rs.19,00,315/- or that the defendant no 2/counter claimant paid Rs.2,85,041/- in excess for further supply of Aluminum Ingots which was not supplied or that the plaintiff prepared false and fabricated bills worth Rs.4,89,000/- or that invoice no 20 dated 03.09.2015, invoice no.25 dated 17.09.2015 and invoice no.028 dated 24.09.2015 were forged and fabricated or that the plaintiff is liable to pay Rs.2,85,000/- to the defendant no.2 or that the defendants had not purchased goods against invoices no 20,25 and
28. There is nothing in cross examination of the plaintiff which can reflect that the plaintiff is liable to pay Rs. 4,89,000/- to the defendant no 2. The defendant no 2 could not prove that the plaintiff is liable to pay Rs. 2,85,000/- to the defendant no 2. There is no evidence to prove that first transaction took place on 18.05.2015 and last transaction took place on 16.10.2015 except Ledger Account Ex. DW2/2 but Ledger Account Ex. DW2/2 is not supported and corroborate by other evidence as per section 34 of Evidence Act, 1872. The defendant no 2 in written arguments mentioned that the defendant no 2 paid Rs. 47,520/- on 18/05/2015 which was not replied by the plaintiff and the plaintiff did not produce bank statement of said date. However this allegation of the defendant no 2 is supported and corroborated by pleading and evidence on record. Issue no 2 and 4 are decided in favor of the plaintiff and against the defendant no 2.
ISSUE NO 3 AND 5
3. Whether the plaintiff is entitled to claim interest from the defendant, if so, at what rate and for which period? OPP
5. Whether the defendant is entitled to claim interest on the aforesaid amount of Rs.2,85,041/- as claimed in his counter claim, if so, at what rate and for which period? OPD CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 16/19
20. Interest is generally reduced in writing at the time of the money is loaned. Legal interest is prescribed by the statue. Conventional interest is agreed upon by the parties themselves. Interest is premium paid for use of money. Interest is defined in Section 34 of Code of Civil Procedure, 1908 which reads as under:-
Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such a rate as the court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [ with further interest at such rate not exceeding six percent, per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
The Supreme Court in C.K. Sasankan V The Dhanalakshmi Bank Ltd., Civil Appeal No 1317 of 2009 decided on 27 th February, 2009 observed that interest should be granted on sound legal principles. It was observed as under:-
The quantum and rate of interest which the appellant in the present case is entitled to would be in accordance with the provisions of Section 34 of the Code. According to the provisions of Section 34 of the Code interest is to be awarded at a reasonable rate and on the principal amount. It is needless to point out that although the amount of interest from the date of filing of the suit till the date of the decree and thereafter till realisation is in the discretion of the court as is confirmed by the use of the word `may' but such discretion has to be exercised by the court properly, reasonably and on sound legal principles and not arbitrarily and while doing so the court is also to consider the parameter, scope and ambit of Section 34 of Code.
The Supreme Court in State of Haryana & others V M/S S.L.Arora & Company, Civil Appeal No.1094 of 2010 decided on 29th January, 2010 observed as under:-
Payment of interest arises in different circumstances. It can be the consideration paid by a borrower to a lender for use of the money lent or made available by the lender. It can be the return given by a bank, financial institution or a company on amounts deposited or invested with them by a customer or constituent. It can be the compensation paid by a person who withholds or defaults in paying an amount or in discharging a liability, when it is due and payable. Interest may be payable in pursuance of a contract, or a provision in a statute, or the fiat of a court of tribunal. It is usually quantified in terms of a CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 17/19 percentage of the `principal' or the `investment' or the `amount of liability'. Interest unless otherwise specified, refers to simple interest, that is interest paid on only the principal and not on any accrued interest.
21. The plaintiff claimed interest @ 18% per annum from the defendant no 2 and as per terms and conditions as mentioned on copies of Tax Invoice/Bills Ex. PW1/3 interest @ 36% shall be charged. The interest proposed to be charged should be reasonable and should not be arbitrary. The plaintiff under given facts and circumstances of case is awarded simple interest @ 12% per annum from institution of present suit till decree of the suit and from decree of suit till realization of decretal amount and said interest is reasonable. The defendant no 2 is not entitled to claim interest from the plaintiff. Issue no 3 and 5 are decided accordingly in favor of the plaintiff and against the defendant no 2.
ISSUE NO 6 RELIEF
22. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zhaira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam. In view of findings on issue no 2 to 4 the suit of the plaintiff is decreed and a decree of Rs 4,89,000/- along with cost and simple interest @ 12% per annum from the date of the filing of the suit till realisation is passed in favour of the plaintiff and against the defendant no 2. The counter claim bearing no 302/17 filed by the defendant no 2 is dismissed. Decree-sheet be prepared accordingly. Copy of this judgment be CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 18/19 also placed on judicial record of counter claim bearing no 302/17. File be consigned to record room.
ANNOUNCED IN THE OPEN
COURT ON 27th OCTOBER, 2020
(DR. SUDHIR KUMAR JAIN)
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
Digitally NORTH- EAST
signed by
Sudhir KARKARDOOMA COURTS, DELHI
Sudhir Kumar Jain
Location:
Kumar Karkardooma
courts, Delhi
Jain Date:
2020.10.27
16:58:21
+0530
CS 507/16 & COUNTER CLAIM 302/17 AJAY JAIN V MANOJ JI & ANOTHER 19/19