Delhi District Court
Dugar Marketing Pvt. Ltd vs Roots Cooling System on 23 August, 2024
IN THE COURT OF Sh. NIKHIL CHOPRA, DISTRICT JUDGE
(COMMERCIAL COURT)-06, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
CS (Comm) No.2419/2021
CNR No.-DLCT01-009089-2021
Dugar Marketing Pvt. Ltd,
Having its registered office at:-
4913, 2nd Floor, Yusuf Building,
Hauz Qazi Chowk, Delhi-110006
Through Its Authorized Representative/
Sales Manager Sh. Nishant Baid,
S/o Sh. Pramendra Kumar Baid,
......Plaintiff
Versus
1. Roots Cooling System Pvt Ltd.,
Through its Directors
2. Sh. Anoop Saxena,
Director Roots Cooling System Pvt. Ltd.,
3. Sh. Rajeev Saxena,
Director Roots Cooling System Pvt. Ltd.,
All Having their registered office at;-
B-20, 2nd Floor, Kailash Colony,
New Delhi-110048
Also At:-
B-53, Hosiery Complex, Phase-II,
Noida, Uttar Pradesh
....Defendants
Date of Institution : 22.07.2021
Arguments Concluded : 07.08.2024
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 1 of 24
Date of decision : 23.08.2024
JUDGMENT
1. Judgment disposes off of a commercial suit, for recovery of Rs.25,39,697.61/-, on account of unpaid bills against supplies.
2. Shorn of avoidable details, the case of the plaintiff is that it is a private limited company, engaged in the manufacturing and supply of pipes including M.S. Black & Galv. Pipes, Seamless Pipes, Hydraulic Pipes & Tubes Pipe fittings valves & cocks and other accessories. Sh. Nishant Baid is the authorized representative through whom the suit is filed. Defendant no.1 is a private limited company and defendant nos.2 and 3 are its directors, looking after the day to day affairs of the defendant no.1.
3. It is averred that plaintiff had supplied the goods to the defendants from time to time against various Purchase Orders and as per the Statement of Account maintained by the plaintiff in its regular course of business, a sum of Rs.29,81,819.61/- was dues as on 01.04.2017. The plaintiff is stated to have effected number of supplies between 01.04.2017 to 30.07.2018 against the Purchase Orders placed at Delhi. The defendants had also deposited GST of Rs.67,059/- to the concerned authorities as well as made a part payment of Rs.2,50,000/- to the plaintiff, leaving a debit balance of Rs.20,59,315.61/- as on 28.08.2019. Vide letter dated 31.03.2019, the defendant had admitted their CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 2 of 24 liability to the tune of Rs.23,56,884/-. It is stated that the invoices provided the rate of interest to be charged as 24% per annum and the jurisdiction with Courts of Delhi. The defendants were satisfied with the quality and quantity of the material supplied. The defendant nos.2 and 3 are also stated to be responsible for the dues of the plaintiff.
4. Constrained with defendants' neglect to clear the dues, despite several requests and reminders, plaintiff got a legal notice dated 14.01.2020 served upon the defendants, followed by a reminder notice dated 12.01.2021. As the defendants did not pay any heed, the plaintiff approached the DLSA Central District for Pre-Institution Mediation.
5. Plaintiff has further claimed that the defendants are also liable to pay interest @12% per annum w.e.f 29.08.2019, accordingly, the plaintiff is entitled to a sum of Rs.25,39,697.61/-, including interest and legal expenses.
6. While claiming cause of action to have accrued on several dates, including on the date of issuance of the legal notice and further claiming that the entire cause of action to have accrued in Delhi, within the territorial jurisdiction of this Court, the plaintiff has claimed a money decree to the tune of Rs.25,39,697.61/-.
7. The defendants appeared and filed their written statement raking up objections that the suit is absolutely frivolous, CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 3 of 24 misconceived, malafide, abuse of process of law, and that the plaintiff has not approached the Court with clean hands. It is stated that the documents relied upon by the plaintiff are forged and fabricated documents and there is no liability. It is stated that in the year 2015, the defendant approached the plaintiff for their services and at that point of time, all the transactions of the defendant no.1 company were managed by Sh. Ramjivan Chaudhary and Sh. Sushil Kumar, who were the GM Finance and Accountant of the defendant no.1 company, respectively. It is further stated that after inspection, the defendant no.1 company came to know that the plaintiff in collusion with the said officials fabricated the book of accounts, regarding which, an FIR bearing no.0054/2021 at PS Phase II Gautam Budh Nagar, under Sections 420/461/468/120B read with Section 506 and 408 IPC had been lodged against the said officials. It is further averred that the defendant no.2 and 3 are neither necessary nor a proper party to the present proceedings. It is further stated that the opening balance mentioned in the Books of Accounts do not tally with the plaintiff's Statement of Account. Further, the defendants have timely made all the payments towards the services of the plaintiff.
8. On merits, the defendants have denied any liability as regards payment of GST. It is stated that the GST was not paid by the defendants, however, the same was automatically deducted from the defendants' account. However, the payment of Rs.2,50,000/- made to the plaintiff is admitted.
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 4 of 249. The plaintiff filed its replication reiterating its stand and claiming that the stand taken by the defendants is incorrect. As regards the allegation of forgery/fabrication of accounts by the defendants in connivance with employees of defendant no.1 company, it is stated that the defendants have made up a false story, just to escape their legal liability towards the plaintiff. The plaintiff has also denied that the invoices being relied upon by them are forged and fabricated.
10. As transpires from the record, issues were framed by the Ld. Predecessor vide order dated 26.10.2023. However, on 06.11.2023, the issues were corrected on account of some error. The corrected issues are as under:-
'1. Whether the defendant nos. 2 and 3 namely Sh. Anoop Saxena and Sh. Rajeev Saxena are liable for acts of defendant no.1 namely Roots Cooling System Pvt. Ltd.? OPD-2 and OPD-3.
2. Whether the plaintiff is entitled to a decree in its favour against the defendants in sum of Rs.25,39,697.61/-? OPP
3. Whether the plaintiff is entitled to pendente lite and future interest on the decreetal amount @ 12% p.a. w.e.f 16.07.2021 till actual realization, from the defendants? OPP
4. Whether the plaintiff is entitled to costs of the suit? OPP
5. Relief."
11. The evidence was directed to be recorded through Local Commissioner. The plaintiff has examined Sh. Nishant Baid as PW-1, who deposed through affidavit and proved the following documents:-
1. Copy of Certificate of Incorporation as Ex.PW-1/1.CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 5 of 24
2. True extract of minutes/resolution dated 10.03.2021 as Ex.PW-1/2.
3. Computer generated copies of 29 Purchase Orders placed by defendants as Ex.PW-1/3 to Ex.PW-1/31.
4. Computer generated copies of 29 Purchase Orders placed by defendants as Ex.PW-1/32 to Ex.PW-1/60.
5. Carbon copies and photocopies of Good delivery receipts as Ex.PW-1/61 (colly).
6. Computer generated copy of confirmation of the account w.e.f 01.04.2017 to 31.03.2019 as Ex.PW-1/62.
7. Copies of reminders of payment with their postal receipts and AD cards as Ex.PW-1/63 (colly).
8. Office copy of legal notice dated 14.01.2020 as Ex.PW-1/64.
9. Original six postal receipts all dated 14.01.2020 as Ex.PW-1/65 (colly).
10. Office copy of reminder notice dated 08.01.2021 as Ex.PW-1/66.
11. Original six postal receipt all dated 11.01.2021 as Ex.PW-1/67 (colly).
12. Internet generated 6 tracking report as Ex.PW-1/68.
13. Copy of application filed with DLSA as Ex.PW-1/69.
14. Non Starter Report dated 01.09.2021 as Ex.PW-1/70.
15. Certificate u/S 65B of Indian Evidence Act as Ex.PW-1/71.
12. In his cross examination, PW-1 stated that the corresponding invoices of the company were exhibited as Ex.PW-1/32 and corresponding G.R. forms part of Ex.PW-1/61 (colly) (the same was re-exhibited as Ex.PW-1/61(X-1), which CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 6 of 24 bears signature/acknowledgment on behalf of the defendant. He further stated that the company used to supply materials through transporter. He admitted that the plaintiff has not filed on record any ledger which shows that the brought forward balance was Rs.29,81,819.61/- as on 01.04.2017. He further admitted that invoices Ex.PW-1/32 and Ex.PW-1/33 are not mentioned in the Ledger Ex.PW-1/62. He denied that the invoices and GR placed on record are fabricated documents or that no goods were supplied against them. He further denied the suggestion that no acknowledgment over Ex.PW-1/62 was ever given by the defendant to the plaintiff.
13. It transpires that the witness was extensively cross examined, and confronted with individual Purchase Order/invoices separately. He was cross examined on the aspect of signatures, date of issuance, corresponding Good Receipts qua the said Purchase Orders, and acknowledgment on the said Purchase Order/Invoices. He is found to have explained about the Purchase Orders and the corresponding invoices as well as corresponding Goods Receipts in detail.
14. The defendants examined Sh. Vikram Singh, AR for the defendant no.1 as DW-1, who deposed through affidavit on the lines of the pleadings and proved the following documents:-
1. Board Resolution dated 12.07.2022 as Ex.DW-1/1 (objected to mode of proof by the counsel for the plaintiff as the said document is photocopy only).
2. FIR bearing no.0054 of 2021 in PS Phase II, Gautam Budh CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 7 of 24 Nagar on 06.02.2021 as Ex.DW-1/2 (objected to mood of proof).
15. In his cross examination, he admitted that the defendant no.1 company is maintaining accounts in the name of the plaintiff, which was opened in the year 2014 and closed in year 2019. He stated that he joined the defendant no.1 company in the year 2005, and then left the job in 2008 and thereafter rejoined in 2019. He further stated that the said account was being maintained by Sh. Ramjivan Chaudhary, GM Finance and Mr. Sushil Kumar, Accountant and that when he joined in the year 2019, the said persons were maintaining the purchase and accounts of defendant no.1. He stated that the accounts are available with the defendant no.1 and that the accounts have not been placed on record.
In his further cross examination, he denied that the accounts were not placed as the same does not suit the defendant. He admitted that stock register is maintained, however, the same has not been placed on record. He stated that he does not know as to why the same has not been placed on record. When confronted with the document Ex.PW-1/62, he responded that the same is not confirmed by the defendants as there are no signatures from the defendant on Ex.PW-1/62. He stated that the seal at point G of Ex.PW-1/62, prima facie, does not belong to defendant no.1 company. When confronted with the seal impressions on the affidavit Ex.DW-1/A, he denied that the seal impression on Ex.DW-1/A are similar to the seal impression at point G Ex.PW- 1/62. When confronted with the entries at point H to O on CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 8 of 24 Ex.PW-1/62, he responded that he cannot confirm that the said entries have been made on the payments made by the defendant to the plaintiff. He further stated that he can clarify on the basis of records available in his office and expressed his ignorance when asked as to whether the said record has been placed on the judicial file.
16. During his further cross examination, the witness was confronted with Ex.PW-1/3 to Ex.PW-1/31. He stated that he cannot answer as to was whether the said Purchase Orders were issued by defendant no.1 on instructions of defendant no.2. The witness volunteered that signature of authorized signatory were missing on Ex.PW-1/6 to Ex.PW-13.
17. I have heard the Ld. Counsels for the parties and have gone through the relevant records.
18. The main contentions of the Ld. Counsel for the plaintiff are:-
(i) That the defendants have not disputed the part payment of Rs.2,50,000/- after the receipt of the reminder dated 13.08.2019-
Ex.PW-1/63 (colly) and as such, cannot be heard to say that the bills are forged and fabricated.
(ii) That the defendant nos.2 and 3 being the directors of defendant no.1- company, are liable for dues of the defendant no.1.
(iii) The defendants side have also admitted the existence of business dealings and also that they have been maintaining the Books of Accounts, however, no such Books of Accounts were ever produced, which clearly shows that the defendant did not bring it on record in order to avoid admissions of liability.
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 9 of 24(iv) The Purchase Orders Ex.PW-1/3 to Ex.PW-1/31 have been signed by multiple persons/authorities and DW-1 has avoided to answer direct queries in relation with the same, which indicates that there is a clear a admission to the Purchase Orders.
(v) The plaintiff side has also not examined any witness including any of the signatories of the Purchase Orders, nor did they ever claim or prove that the signatures over the Purchase Orders are forged and fabricated.
(vi) The defendants, despite acknowledging the supplies of goods, withheld the payment intentionally, deliberately and dishonestly.
(vii) Defendants no.2 and 3 did not come forward in order to avoid their cross examination as it on their instance that all the Purchase Orders have been placed. Defendant no.1 has also paid GST, which fact is not disputed despite categorical averments and assertions on the part of the plaintiff.
(viii) Though the defendants have alleged lodging of FIR, however, no final report qua the said FIR has been filed by the defendants. There is no evidence of any collusion or fabrication as alleged by the defendants.
(ix) None of the Purchase Orders are even otherwise proved to have been issued by the Former GM or Former Accountant.
(x) The defendants have not disputed other signatures on the Purchase Orders nor is it their case that these formats do not belong to the plaintiff.
(xi) The defendants did not cross examine the plaintiff's witness on the aspect of GST, part payment of Rs.2,50,000/- and there is nothing on record which could destruct the probative value of Ex.PW-1/62.
(xii) Though, as per the invoices, the plaintiff is entitled to interest @ 24% per annum on the outstanding amount, however, keeping in view the previous long relationship with the defendants, the plaintiff has claimed interest @ 12% per annum w.e.f 29.08.2019 till actual payment.
19. Main contentions of learned counsel for the defendants CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 10 of 24 are:-
(i) Certain Purchase Orders and Invoices do not match with each other in terms of the description of the material allegedly ordered and allegedly supplied through invoices, which indicates fabrication and forgeries.
(ii) The plaintiff, in collusion with Sh. Sushil Kumar, Former GM Finance of defendant no.1 and Sh. Ramjivan Chaudhary, Former Accountant of Defendant no.1, had forged the invoices and have created a false case of supply and unpaid balance.
(iii) Plaintiff has to stand on its own legs, and it has failed to prove any transaction/liability.
(iv) That defendants no.2 and 3 are neither necessary or proper party to the present proceedings as they were not aware about the accounts, which were managed by the Former GM and Former Accountant of the defendant no.1, as the directors are not even otherwise liable for the alleged dues of company.
(v) The goods receipts placed neither bear the acknowledgment for and on behalf of the defendants, nor inspire any confidence and thus, cannot be treated as a proof of supply. In the absence of proof of supply, no credibility can be assigned to the invoices placed.
(vi) No credence can be assigned to Ex.PW-1/62 as it does not bear any acknowledgment by the defendants, and as such, the entire case of the plaintiff is bound to fail.
20. Learned counsel for the defendants have relied upon the following judgments:-
(a) Mukesh Hans & Anr Vs. Smt. Uma Bhasin & Ors [2010 SCC OnLine Del 2776]
(b) P D Verma and Co. Vs. Laxmi Builders [2014 SCC OnLine Del 2160]
(c) M/s Gauhati Roller Flour Mills Vs. Smti Premoda Medhi & Ors [GHC RSA no.35/2012]
21. Time now to deal with the issues. Issue nos. 2 is taken up CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 11 of 24 first, which are reproduced as under:-
"Issue No.2.- Whether the plaintiff is entitled to a decree in its favour against the defendants in sum of Rs.25,39,697.61/-? OPP"
22. In this respect, the plaintiff has placed on record Ex.PW- 1/3 to Ex.PW-1/31 i.e. 29 Purchase Orders claiming them to have been placed by the defendant no.1. The plaintiff has also further proved on record the invoices Ex.PW-1/32 to Ex.PW-1/60. All these documents, amongst others, have been subjected to extensive cross examination by the defendant side.
The plaintiff has also placed on record the Goods Delivery Receipt-Ex.PW-1/61 (colly) (total 11 in numbers) and Confirmation of Account-Ex.PW-1/62.
23. It is the case of the plaintiff that the supplies were effected through invoices Ex.PW-1/32 to Ex.PW-1/60 against the Purchase Orders placed by the defendants and the plaintiff has placed all the evidence within his power and possession. It has been impressed upon the Court that all these Purchase Orders have been signed by multiple persons, for and on behalf of the defendants, and none of these documents are claimed to have been signed by the Former GM or the Former Accountant, in connivance of whom, the plaintiff is alleged to have fabricated the invoices.
The following Purchase Orders are found to have been CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 12 of 24
24. The existence of the business dealings between the parties have not been disputed. The plaintiff has claimed that it has placed best possible evidence, and all documents available with him i.e. the Purchase Orders, mostly in original and office copies of the invoices, placed on record. The plaintiff has contended that after placing the best possible evidence available with him, they have sufficiently proved the transactions as well as unpaid balance as well as acknowledgment on the part of the defendants. The plaintiff has also impressed upon the Court that going by the principles of proof- preponderence of probabilities, the plaintiff has clearly proved its case.
25. As far as the Purchase Orders Ex.PW-1/3 to Ex.PW-1/31 and the corresponding Invoices Ex.PW-1/32 to Ex.PW-1/60 are concerned, the Court has considered the extensive cross examination the plaintiff's witness-PW-1 has been subjected to. The Court finds that in the hindsight of the defence of forgery and fabrication of these documents, there is nothing which could make the Court believe that the same are forged or fabricated. The Court further finds that there is a general and sweeping statement of denial in the Written Statement, as well as the affidavit of DW-1.
26. Having regard to the fact that existence of business is not in dispute and that the initial onus stood discharged, the burden had shifted upon the defendants to show that these documents were forged or fabricated. The defendants are found to have CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 13 of 24 taken a general stand of denial and a sweeping statement as to forgery and fabrication in regard with all the documents placed by the plaintiff, without any concrete proof in support of such allegations. Once they fail to prove their defence, they cannot be allowed to go for a fishing expedition, or to casually resort to anything that might be used as defence.
27. Before proceeding further, it would be useful to refer to certain portions of the affidavit of DW-1 as well as his cross examination.
Relevant extract from Affidavit of DW-1:-
"3. I say that the plaintiff and the defendant company has had business relations since the year 2014. It is submitted that the relations remained cordial between both the parties without any disputes and all the bills were cleared timely for the goods delivered to the defendant Company.
4. I say that at that point of time, Defendant no.1 Company's accounts and all the transactions were entirely managed by Ramjivan Chaudhary (GM Finance of the defendant no.1 Co) and Sushil Kumar (Former Accountant of the Defendant Company). It is stated that on several occasion there have been discrepancies in the invoices which were raised against PO and therefore those invoices were not accepted by the Defendant Company.
...
6. I say that the Plaintiff has manufactured and forged various invoices and falsely issued in the name of the Defendant Company.
.....
11. I say that the Defendant Company has timely made all the payments towards the goods delivered by the plaintiff and despite the same, the Plaintiff with malafide intention and with an intention to deceive the Defendant Company, has fraudulently raised false and fabricated invoices."CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 14 of 24
Relevant Extract of DW-1 "Q-4. Can you specify the documents of the defendant no.1 company which you can access being as Commercial Manager?
Ans. I have access to all purchase and account documents of all concerned parties of the defendant no.1 company.
Q-5. Is the defendant no.1 Company is maintaining any account in the name of plaintiff company?
Ans. Yes. It was maintained.
Q-6. Can you specify the date when the said account was opened and till what period the said account was maintained by defendant no.1 company?
Ans. It was opened in 2014 and closed in 2019.
Q-9. Whether the said account of the plaintiff company is still available with the defendant no.1.?
Ans. Yes.
At this stage, the witness has been offered the judicial file.
Q-10. The witness has been asked to point out whether such account is available in it or not?
Ans. The witness refused to open the file and stated that the said account has not been placed on record.
Q-11. Can you assign any reason for not placing the said account in judicial file by defendant no.1?
Ans. I do not know.
Q-21. It is put to you that seal mark appearing on the affidavit Ex.DW-1/A and the seal Mark appearing at point 'G' on Ex.PW-1/62, are similar to each other. What you have to say?
Ans. It is wrong.
At this stage, the witness has been confronted with the entries dated 22.06.2017 for Rs.3,00,000/- (encircled as H);
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 15 of 2403.08.2017 of Rs.1,50,000/- (encircled as I); 12.08.2017 of Rs.1,50,000/- (encircled as J), 12.09.2017 of Rs.1,50,000/- (encircled as K); 05.06.2018 of Rs.2,50,000/- (encircled as L); 11.06.2018 of Rs.2,50,000/- (encircled as M); 04.07.2018 of Rs.5,00,000/- (encircled as N) and 01.02.2019 of Rs.2,00,000/- (encircled as O) available on Ex.PW-1/62.
Q-22. Whether the said confronted payments have been made by the defendant no.1 on the instructions of defendant nos.2 and 3? What you have to say?
Ans. By going through the said document Ex.PW-1/62, neither can I confirm the said payments or the entries against the same by the defendant no.1 company to the plaintiff.
....
Q-45. I put to you whether the abovesaid purchase orders were being issued by the defendant no.1 on the instructions of defendant no.2 and 3 to the plaintiff company or not?
Ans. I cannot say anything."
28. Considering the cross examination of DW-1 as referred to above, as well as other statements made in the cross examination holistically, it comes clear that the defendants have not disputed any specific Purchase Order or denied the existence of business dealings and have no explanation as to non production of their own Account Books. The witness seems to have volunteered extensively on the aspect of missing of certain signatures over the Purchase Orders. However, there is absolutely no explanation as to the signatures of other persons already made on the Purchase Orders, nor is it the case of the defendants that the said signatures are forged or fabricated or even that no such employees were on the rolls of the defendant no.1.
29. Coming to the next limb of arguments. The defendants side CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 16 of 24 had pointed out certain anomalies and mismatching inter se the documents proved by the plaintiff contending that certain Purchase Orders as are relied upon by the plaintiff and the invoices placed on record did not match insofar as the description of goods, quantity of goods or the total amount claimed is concerned. However, considering the entire evidence holistically in the light of the deposition of PW-1, the irregularities as claimed by the defendants stands explained and it was upon the defendants to have brought on record such evidence, which could have displaced or diminished the credibility of the documents proved by the plaintiff and truthfulness of the deposition made by PW-1. On the contrary, nothing has come on record except the FIR itself, which have been pressed by the defendants' side to make the Court believe about the forgery of certain documents. Ex.DW-1/2 i.e. the FIR is found to have been registered on 06.02.2021, however, it does not make any mention as to transactions with the plaintiffs.
30. Besides, the defendants have clearly avoided to place on record the final report in the said case or any other evidence, which could have linked the FIR with the transactions with the plaintiff. The defendants side has not been able to explain as to how the FIR would advance the defence, as far as forgery and fabrication of the documents are concerned. The defendants had all the opportunity to point out as well as to prove which of the documents are forged and fabricated and as the defendants' solitary witness DW-1 had steered clear away from making any CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 17 of 24 specific assertion as to any particular or specific document being fabricated, there is nothing which could add credibility to the stand of the defendants.
31. The following Purchase Orders and the corresponding invoices stands proved by the plaintiff:-
Purchase Order Invoice
ExPW-1/3 ExPW-1/32
ExPW-1/4 ExPW-1/33
ExPW-1/6 ExPW-1/36
ExPW-1/7 ExPW-1/34
ExPW-1/8 ExPW-1/35
ExPW-1/9 ExPW-1/42
ExPW-1/10 ExPW-1/39
ExPW-1/11 ExPW-1/40
ExPW-1/12 ExPW-1/41
ExPW-1/13 ExPW-1/38
ExPW-1/14 ExPW-1/37
ExPW-1/15 ExPW-1/48
ExPW-1/16 ExPW-1/55 and 1/56
ExPW-1/17 and 18 ExPW-1/43
ExPW-1/19 and 20 ExPW-1/45
ExPW-1/21 ExPW-1/44
ExPW-1/22 ExPW-1/46 and 1/47
ExPW-1/23 ExPW-1/49
ExPW-1/24 ExPW-1/59
ExPW-1/25 ExPW-1/51
ExPW-1/26 ExPW-1/50
ExPW-1/27 ExPW-1/60
ExPW-1/28 ExPW-1/58
ExPW-1/29 ExPW-1/52
ExPW-1/30 ExPW-1/53
ExPW-1/31 ExPW-1/57
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 18 of 24
32. Coming now to the most contentious document on record i.e. Ex.PW-1/62. Learned counsel for the plaintiff has contended that the same is a clear acknowledgment of liability inasmuch as, the same bears the seal/stamp impression of the defendant no.1 with signatures of the defendants. The defendants side, on the other hand, has contended that the said document is forged and fabricated and the seal impression on the said document does not belong to the defendant no1, nor is there any signature on the said document. It is impressed that the word 'OK' cannot be claimed to be the signatures or an acknowledgment for and on behalf of the defendants.
33. Insofar as the seal is concerned, the plaintiff side has invited the attention of the Court towards the seal impression on the foot of all the pages of affidavit Ex.DW-1 while stating that the same are identical. However, the Court finds that seal impression on the affidavit Ex.DW-1 bears clear mention of the place as 'New Delhi' whereas the seal impression on Ex.PW-1/62 bears the mention of the place as 'NOIDA'.
34. Having regard to the rival submissions in this respect, the Court is of the opinion that the plaintiff has not been able to conclusively prove that it is the seal of the defendant no.1 company. Besides, there appears to be considerable weight in the submission of the learned counsel for the defendants that the work 'OK' cannot be claimed to be signatures or the acknowledgment of liability. Thus, insofar as the CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 19 of 24 endorsement/writings towards the foot of the document Ex.PW- 1/62 are concerned, the plaintiff cannot derive any benefit from therefrom.
35. Coming now to the other portions of Ex.PW-1/62. It has been contended by the learned counsel for the plaintiff that the same has been specifically subjected to in the cross examination of DW-1. The relevant portion of cross examination of DW-1, in respect of entries are reproduced as under:-
"Q-23 In what manner you can confirm or deny the entries gone through by you in Ex.PW-1/62?
Ans. I can state about the same after going through the records, which is available in our office.
Q-24. Why you have not placed the said record in judicial file?
Ans. I do not know.
Q-25. I put it to you that you are deliberately avoiding to give answer about the said entries encircles from points H to O on Ex.PW-1/62 with a view to hide the truth from the Court?
Ans. It is wrong."
36. It is contended that the defendants were also served with payment reminder dated 13.08.2019-Ex.PW-1/63, giving the details of bills, total amount as well as the other dues, and that the same was served through speed post. In this respect, original Acknowledgment Due Card bearing the signatures of one Mr. Saxena is also placed on record. Considering the fact that the said document has been processed through the Department of Post CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 20 of 24 and bears its stamps/seal impression, it could not be claimed by the defendants' side to be not credible. The Court cannot help but hold that the reminder was served upon the addressee and received by Mr. Saxena i.e. one of the defendants. The defendants have also found to have been served with reminder dated 24.09.2019, which also bears a reference to the part payment of Rs.2,50,000/- made by the defendant no.1 through RTGS, consequently scaling down the liability to Rs.20,59,315.61/-. The same is also clearly mentioned in the legal notice dated 14.01.2020-Ex.PW-1/64 and legal notice dated 08.01.2021-Ex.PW-1/67 (colly). There is no reply to the said notices and the payment of Rs.2,50,000/- through RTGS has also not been disputed by the defendants. Assuming that there was no liability and that the documents were fabricated or forged, the defendants would not have proceeded to make even part payment.
37. Coupled with the fact that the defendants have not replied to all these legal notices, reminders, nor have placed on record their own Statement of Account/Ledger, which were admittedly within the reach of DW-1 and further considering that DW-1 has avoided taking clear stand in respect of the invoices as well as entries in Ex.PW-1/62, the Court comes to a clear conclusion that the defence is wrapped up in falsehood.
38. Considering the fact that there is nothing on record, which could diminish the credibility or probative value of the Purchase CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 21 of 24 Orders or the invoices, the Court is of the view that the plaintiff has been able to prove the transactions as well as the fact that the defendants have not paid the balance due.
39. Learned counsel for the defendants upon the judgment of Hon'ble Supreme Court of India in P D Verma and Co. Vs. Laxmi Builders [2014 SCC OnLine Del 2160] while contending that the plaintiff has to stand on his own legs to prove its case. However, considering the totality of the evidence on record, defendants cannot derive any benefit from the said judgment inasmuch as the plaintiff has placed on record its best possible evidence and has discharged the initial burden. For similar reasons, the judgment of M/s Gauhati Roller Flour Mills Vs. Smti Premoda Medhi & Ors [GHC RSA no.35/2012], relied upon by the defendants, would not benefit the defendants.
40. Coming now to the question of liability. Having regard to the entries made in Ex.PW-1/62 and considering the subsequent payment of Rs.2,50,000/- and the consequential scaling down of liability to Rs.20,59,315.61/-, the Court is of the view that the said amount can be taken as due to the plaintiff and recoverable from the defendants.
Issue no.2 is accordingly decided in favour of the plaintiff.
41. Coming now to issue no.1, which is reproduced as under:-
"Whether the defendant nos. 2 and 3 namely Sh. Anoop Saxena and Sh. Rajeev Saxena are liabile for acts of defendant no.1 namely Roots Cooling System Pvt. Ltd.? OPD-2 and OPD-3"CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 22 of 24
42. Learned counsel for the plaintiff has contended that it was at the instance of defendants no.2 and 3 that the Purchase Orders were placed and that the defendants no.2 and 3 had been assuring for the payment and as such, they continue to be liable for the dues of defendant no.1.
43. Learned counsel for the defendants, on the other hand, while contending that the defendant nos.2 and 3 are not liable for the acts of the defendant no.1 has relied upon the judgment of Mukesh Hans & Anr Vs. Smt. Uma Bhasin & Ors [2010 SCC OnLine Del 2776] .
It is clear from the record that the defendant no.2 and 3 are not the guarantors to for and on behalf of the defendant no.1 and as such, the plaintiff cannot claim any personal liability against the defendant nos.2 and 3. The issue no.1 is, accordingly, decided in favour of defendant nos.2 and 3.
44. Coming now to issue no.3 i.e.-
"Whether the plaintiff is entitled to pendente lite and future interest on the decreetal amount @ 12% p.a. w.e.f 16.07.2021 till actual realization, from the defendants? OPP"
45. Although the plaintiff is claiming interest @12% per annum, however, in view of the totality of facts and circumstances of the case, grant of interest @ 9% per annum would suffice the purpose.
46. Issue nos.4 and 5 are reproduced as under:-
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 23 of 24"Issue No.4-Whether the plaintiff is entitled to costs of the suit? OPP Issue no.5- Relief."
47. As a sequel to the finding above, money decree to the tune of Rs.20,59,315/- together with interest @ 9% per annum from the date of filing of the suit till its actual realization, is granted in favour of the plaintiff and against the defendant no.1. The defendant no.1 is directed to make the payment within three months.
48. Decreed with costs.
49. Decree-sheet be prepared accordingly.
50. File be consigned to record room after due compliance.
Dictated and Announced today
i.e. on 23.08.2024 Digitally signed
by NIKHIL
NIKHIL CHOPRA
in the open Court CHOPRA Date:
2024.08.23
17:28:51 +0530
(NIKHIL CHOPRA)
District Judge (Commercial Court-06)
Central, Tis Hazari Court, Delhi
23.08.2024
CS (COMM) 2419/2021 Dugar Marketing Pvt. Ltd. Roots Cooling System & Ors Page 24 of 24