Delhi District Court
Health Care At Home India Pvt. Ltd vs Laxmi Meditech on 29 August, 2023
IN THE COURT OF SH. PREM KUMAR BARTHWAL,
DISTRICT JUDGE (COMMERCIAL COURT)-01
SOUTH DISTRICT, SAKET COURTS: NEW DELHI
IN THE MATTER OF
CS (Comm) No. 274/19
CNR No. DLST01-002764-2019
HEALTH CARE AT HOME INDIA PVT. LTD.
4TH FLOOR, PUNJABI BHAWAN,
10 ROUSE AVENUE,
NEW DELHI-110002 ..... PLAINTIFF
Versus
LAXMI MEDITECH
PARTNERSHIP FIRM THROUGH ITS PARTNER
Mr. RAJ KUMAR GARG
B-1, BUILDING NO.5,
BHANOT APARTMENT,
LSC COMPLEX,
MADANGIRI
DELHI-110062 ..... DEFENDANT
Date of institution : 27.04.2019
Date of arguments : 25.08.2023
Date of judgment : 29.08.2023
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of Rs. 1,27,08,713.70/- (Rupees One Crore Twenty Seven Lakhs Eight Thousand Seven Hundred Thirteen Only) alongwith interest @ 18%.
2. The brief facts, according to the plaintiff, are that Mr. Sukhvinder Singh has been authorized vide Board Resolution of the plaintiff company dated 22.01.2019 to sign, verify and file the present suit and that the plaintiff/company is engaged in the CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 1 of 25 business of providing para-medical staff/attendants/technicians and is also engagead in the business of supplying medical supplies like medicines, medical equipments and auxiliary medical products. According to the plaintiff, the defendant is a partnership firm engaged in business with plaintiff for a substantial period of time and the plaintiff had supplied state of art medical equipments/products and medicines to the defendants from time to time. It is submitted that during the year 2018 the defendant had placed Purchase Orders telephonically and said Purchase Orders were processed by the plaintiff and the goods/ products were delivered to the defendant by the plaintiff and the delivery thereof was unequivocally accepted by the defendant. It is submitted that the plaintiff raised invoices on the defendant and that due to business relationship between the plaintiff and the defendant, the plaintiff had also granted a credit period of 30 days for full and final payment against following invoices:
Details of the Details of the Total Amount Total Pending Sales Order Invoices of the Amount of Invoices (in the Invoices Rs.) (in Rs.) WO/Delhi/NCR HCAH/2018/21 14,87,249.14/- 5,84,550/-
/2017-18/01789 14 dt. dt. 31.03.2018 31.03.2018 SO/DEL/18- DEL/18- 12,22,624.20/- 3,00,000/- 19/00171 dt. 19/0170 dt. 11.05.2018 15.05.2018 SO/DEL/18- DEL/18- 19,99,696.80/- 4,58,911/- 19/00233 dt. 19/0230 dt. 31.05.2018 31.05.2018 SO/DEL/18- DEL/18- 8,18,223/- 8,18,223/- 19/00278 dt. 19/0274 dt. 19.06.2018 19.06.2018 CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 2 of 25 SO/DEL/18- DEL/18- 5,45,135.50/- 2,81,255/- 19/00314 dt. 19/0310 dt. 24.06.2018 24.07.2018 SO/DEL/18- DEL/18- 14,72,763/- 14,72,763/- 19/00318 dt. 19/0314 dt. 28.06.2018 28.06.2018 SO/DEL/18- DEL/18- 15,28,577.40/- 15,28,577.40/ 19/00330 dt. 19/0326 dt. - 29.06.2018 29.06.2018 SO/DEL/18- DEL/18- 9,99,839.40/- 9,99,839.40/- 19/00346 dt. 19/0341 dt. 30.06.2018 30.06.2018 SO/DEL/18- DEL/18- 1,46,076/- 1,46,076/- 19/00404 dt. 19/0399 dt. 11.07.2018 11.07.2018 SO/DEL/18- DEL/18- 3,55,012.10/- 3,55,012.10/- 19/00428 dt. 19/0423 dt. 16.07.2018 16.07.2018 SO/DEL/18- DEL/18- 2,31,747.60/- 2,31,747.60/- 19/00449 dt. 19/0444 dt. 20.07.2018 20.07.2018 SO/DEL/18- DEL/18- 5,64,564/- 5,64,564/- 19/00455 dt. 19/0450 dt. 21.07.2018 21.07.2018 SO/DEL/18- DEL/18- 6,64,448.40/- 6,64,448.40/- 19/00473 dt. 19/0468 dt. 25.07.2018 26.07.2018 SO/DEL/18- DEL/18- 7,91,574/- 7,91,574/- 19/00483 dt. 19/0478 dt. 27.07.2018 27.07.2018 SO/DEL/18- DEL/18- 8,36,976/- 8,36,976/- 19/00489 dt. 19/0484 dt. 28.07.2018 28.07.2018 SO/DEL/18- DEL/18- 15,57,511.20/- 15,57,511.20/ 19/00501 dt. 19/0496 dt. - 31.07.2018 31.07.2018 SO/DEL/18- DEL/18- 7,96,989.40/- 7,96,989.40/- CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 3 of 25 19/00494 dt. 19/0489 dt. 30.07.2018 31.07.2018 SO/DEL/18- DEL/18- 3,19,696.20/- 3,19,696.20/- 19/00510 dt. 19/0505 dt. 02.08.2018 02.08.2018 Total 1,63,38,703.3 1,27,08,713.7 4/- 0/- 3. According to the plaintiff, an amount of Rs.
1,27,08,713.70/- (Rupees One Crore Twenty Seven Lacs Eight Thousand Seven Hundred Thirteen and Paise Seventy Only) is outstanding against the defendant. It is further submitted that the plaintiff had made numerous verbal requests to the defendant for payment of the outstanding dues but the defendant wilfully neglected and deliberately did not make the payment of the outstanding dues as reflected in the Books of Account maintained by the plaintiff. Hence, this suit.
4. Initially, the suit was filed as a summary suit U/o 37 CPC but my Ld. Predecessor vide order dated 27.04.2019 treated the same as an ordinary suit. Thereafter, summons were issued to the defendant who has contested the suit by filing written statement dated 26.07.2019 contending that the plaintiff had set up a new business (start up) which has suffered losses in the business and that plaintiff's officials have committed bungling of funds due to which losses of the plaintiff has increased manifold and the officials of the plaintiff company have filed false and frivolous litigation on the basis of fictitious and forged invoices so as to satisfy their investors that the plaintiff has recoverable debt from its customers. It is contended that present suit has been filed by the plaintiff by suppressing and distorting the material facts. It is CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 4 of 25 further contended that the plaintiff is relying upon 18 allegedly unpaid or partly paid invoices in para 6 of the plaint and on the basis of the same it is claiming an amount of Rs. 1,27,08,713.70/-
as outstanding dues but out of said invoices only 08 invoices are genuine while 10 invoices are fictitious and fabricated against which no medicines/products/drugs have ever been received by the defendant. According to the defendant, the genuine invoices admitted by the defendant are as under:
Details of Details of the Amount of Invoice Sales/Purchase Order invoice (in Rs.)
WO/Delhi/NCR/2017 HCAH/2018/2114 1487249.14
-18/01789 dt. dt. 31.03.2018 31.03.2018 SO/DEL/18-19/00171 DEL/18-19/0170 1222624.24 dt. 11.05.2018 dt. 15.05.2018 SO/DEL/18-19/00233 DEL/18-19/0230 1999697.44 dt. 31.05.2018 dt. 31.05.2018 SO/DEL/18-19/00314 DEL/18-19/0310 545135.50 dt. 24.06.2018 dt. 24.07.2018 SO/DEL/18-19/00346 DEL/18-19/0341 999839.40 dt. 30.06.2018 dt. 30.06.2018 SO/DEL/18-19/00428 DEL/18-19/0423 355012.06 dt. 16.07.2018 dt. 16.07.2018 SO/DEL/18-19/00449 DEL/18-19/0444 231747.60 dt. 20.07.2018 dt. 20.07.2018 SO/DEL/18-19/00455 DEL/18-19/0450 564564.00 dt. 21.07.2018 dt. 21.07.2018
5. It is contended that the defendant has already made the payment against the abovesaid admitted invoices and nothing is due against the defendant and that the total value of abovesaid genuine/admitted invoices is Rs. 74,05,869/- and that the CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 5 of 25 defendant has already paid an amount of Rs. 74,49,837/- to the plaintiff. It is submitted that the defendant has paid an excess amouunt of Rs. 43,967/- and is entitled to claim the same from the plaintiff.
6. No replication to the defendant's written statement has been filed and the ld. counsel appearing on behalf of the plaintiff informed my Ld. Predecessor on 06.09.2019 that plaintiff is not filing any replication. From the pleadings of the parties, following issues were framed by Learned predecessor of this court on 06.09.2019:-
1. Whether the plaintiff is entitled to decree of Rs.1,27,08,713.70/- on account of supplies made to the defendant together with interest?
OPP
2. Whether the plaintiff is not entitled to recover any amount on account of reverse sale effected by the defendant, fictitious, bills as well as on account of settlement of the account beween the parties? OPD
3. The present suit is not maintainable? OPD
4. Whether any cause of action has accrued for filing the present suit? OPD
5. Whether some of the bills relied by the plaintiffs are forged and fabricated, if so its effect? OPD
6. Relief.
7. During course of the proceedings on 23.01.2023 ld. Counsel for the parties submitted that the issue no.2 framed by my Ld. Predecessor on 06.09.2019 regarding 'reverse sale CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 6 of 25 effected by the defendant', was framed inadvertently/incorrectly as there was a similar matter bearing CS DJ 275 of 2019 titled 'Health Care At Home India Pvt. Ltd. Vs. Satyam Pharmaceuticals & Anr.' pending in said Court. The ld. Counsels for the parties further submitted that the issue no. 2,3 and 4 are not being pressed by the parties and only the issue no.1, 5 and 6 are to be adjudicated/decided.
8. On behalf of the plaintiff two witnesses have been examined namely PW-1, Sh. Sukhvinder Singh and PW-2, Sh. Sachin Sharma. On the other hand, the defendant has examined only one witness i.e. DW-1 Sh. Raj Kumar Garg. Plaintiff's evidence was closed vide separate statement of ld. Counesl for plaintiff on 12.05.2022. Defendant's evidence was closed vide separate statement of Sh. Raj Kumar Garg, partner of defendant on 25.05.2022.
9. PW-1, Sh. Sukhvinder Singh, AR of the plaintiff comapny, has tendered his affidavit in evidence i.e. Ex.PW1/A and relied upon the Board Resolution dated 22.01.2019, Ex. PW1/1 (Objected to on the mode of proof); Copies of 18 invoices raised by the plaintiff, Mark PW1/2 (Colly.) (Objected to on admissibility) ; Redacted copy of plaintiff's bank statement, Mark PW1/3 (Objected to on admissibility and mode of proof). PW-2, Sh. Sachin Sharma, Manager of the Operations Team of the plaintiff company, also tendered his affidavit in evidence i.e. Ex.PW2/1. The cross-examination of the plaintiff's witnesses shall be discussed by the Court while deciding the issues.
10. DW-1 Sh. Raj Kumar Garg, partner of defendant company, has tendered his affidavit as Ex.DW1/A and relied on 8 invoices CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 7 of 25 Ex. DW1/1 (Colly.) and his testimony shall also be discussed during adjudication of the issues.
11. I have heard the arguments adduced by Ms. Rupali Gupta, Ld. Counsel for the plaintiff as well as Sh. Samyak Raj, Ld. Counsel for the defendant, and have also gone through the case record. The written submissions filed on behalf of the plaintiff and my issue wise findings are as under:
Issue No.1 Whether the plaintiff is entitled to decree of Rs.1,27,08,713.70/- on account of supplies made to the defendant together with interest? OPP
12. The dictum in law is as old as the hills i.e. one who avers must prove. Law of Evidence provides the legal framework for an orderly and reliable means of adjudicating a suit or proceeding between the parties. The Law of Evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The Code of Civil Procedure, 1908, The Code of Criminal Procedure, 1973, and The Indian Evidence Act, 1872, constitute the trinity of the principal procedural codes that govern the law of procedure as applied in the courts of law. The Law of Evidence lays down the ground rules for determining on whom the burden of proof will lie for proving the case in a suit or proceeding which one has set in motion, what facts may be considered as relevant for treating them as evidence and what facts may be proved and in what manner so as to ensure high probative value, who may be considered as competent witnesses to prove the facts and the modes of examining those witnesses. Evidence is the usual means of proving or disproving a fact or matter in issue. The law of evidence envisages the proof of facts CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 8 of 25 by the parties by means of: (i) oral evidence - which means and includes all statements which the court permits or requires to be made before it by witnesses in relation to the facts in issue (ii) documentary evidence-is all documents produced for the inspection of the court, and (iii) material objects - such as guns, knives, etc., to which the oral evidence relates.
13. The rules relating to burden of proof are based upon certain practical considerations of convenience and reasonableness and also of policy. The rules relating to burden of proof are as under :
(a) S 101: 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.
(b) S 102: 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.
(c) S 103: 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.
14. Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person whom the burden lies has been able to discharge its burden.The onus to prove issue no. 1 was upon the plaintiff and the plaintiff has examined two witnesses to discharge the said onus. PW1, Mr. Sukhvinder Singh has deposed that he has been authorized vide Board Resolution dated CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 9 of 25 22.01.2019, Ex. PW1/1 and defedant had telephonically placed Purchase Orders with the plaintiff in the year 2018 and the said Purchase Orders were processed by the plaintiff and goods/products were delivered to the defendant by the plaintiff. In para 5 of the evidence affidavit PW1 averred that the delivery were unequivocally accepted by the defendant. It is deposed by PW1 that credit period of 30 days for full and final payment against the invoices was given to the defendant and that an amount of Rs. 1,27,08,713.70/- (Rupees One Crore Twenty Seven Lakhs Eight Thousand Seven Hundred Thirteen and Seventy Paise Only) is still outstanding against the defendant. However, during his cross-examination on 06.05.2022, the said PW1 has deposed that he had signed the invoices Mark PW1/2 at plaintiff's Noida office at the time of instituiting the present suit. He further averred that he was authorized to file the suit by way of Resolution passed by the Company Secretary of the plaintiff company in Janurary 2019. He reitereated on 06.05.2022 that the resolution was passed by the Company Secretary only. PW1 further averred that business transction between plaintiff and defendant commenced in March 2018 and continued probably till November 2018 and that he was doing the work of Book Keeping and working as Senior Executive Finance in the plaintiff company during the said period. PW1 has categorically averred that the operational team of the plaintiff used to take purchase orders for supply of goods from the defendnt and the said team also raised the invoices and it consisted of 5/6 people. He stated that the operation team had supplied the product to the defendant and that the said team did not obtain acknowledgment of the CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 10 of 25 product supplied to the defendant. PW1 categorically asserted in para 5 of his evidence affidavit that delivery of the goods/products was unequivocally accepted by the defendant. However, the issuance of disputed invoices as well as delivery against 10 invoices has been vehemently disputed by the defendant in his pleadings/written statement dated 26.07.2019. The plaintiff did not even controvert the defendant's pleadings by filing any replication. Admittedly, the two witnesses examined by the plaintiff had not made the delivery/supply of the goods/products to the defendant. There were no delivery challans/acknowledgments/receipts of the products/goods issued by the defendant filed by the plaintiff or proved on record. There is considerable force in the arguments of the ld. Counsel for the defendant that the parties were dealing in pharmaceuticals sector wherein expiry date or batch number of the medicines/drugs is very important and the same are tallied while receiving the products by any distributor/pharmacy and that the expired medicines/drugs are also returned for refortification/exchange which cannot happen in the absence of proper acknowledgment/receipt of the said goods/products. The testimony of the PW1 does not establish the disputed Purchase Orders being placed by the defendant or the delivery of the goods/products of the products mentioned in the disputed invoices. The plaintiff company is a duly incorporated and registered company and its records are required to be maintained for the purposes of filing tax returns or settlement of accounts. Strangely, PW1, Sh. Sukhvinder Singh categorically deposed during his cross-examination on 10.05.2022 that the plaintiff CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 11 of 25 company does not want to place on record the ledger accounts being maintained in the name of the defendant. On the earlier date of 06.05.2022 the said witness i.e. PW1 had sought adjournment for taking instructions as to whether the ledger accounts maintained in the name of defendant in the plaintiff's Books of Account were to be produced or not. Thus, the plaintiff has conciously, deliberately and voluntarily chosen not to file the ledger account/books of accounts in record of the case file. No reason or explanation is forthcoming from the plaintiff's side as to why the defendant's ledger account has not been brought on record by the plaintiff. Section 114 Illustration (g) of Indian Evidence Act provides that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Significantly, the plaintiff's own witness PW1, Mr. Sukhvinder Singh clearly stated during his cross-examination on 06.05.2022 that invoices, Mark PW1/2 (colly.) were signed by him at Noida at the time of instituting the present suit. He further deposed that the registered office of the plaintiff's company is at Punjabi Bhawan, ITO, New Delhi. No explanation has come on record from plaintiff's side as to why the said invoices were signed by PW1 only at the time of filing the suit. The invoices admitted by the defendant Ex. DW1/1 (Colly.) also bear signature of plaintiff's authorized signatory but the terms of the invoices given to the defendant are different from the invoices relied by plaintiff and, in fact, different rate of penal interest and many other terms are added in the invoices relied by the plaintiff, Mark PW1/2. Even the signatures on the rival set of invoices are different. Neither of the plaintiff's witness has deposed nor CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 12 of 25 explained about the said differences. The ld. Counsel for plaintiff has tried to explain the differences in the terms of the invoices by submitting that the software package of the plaintiff's computer as well as terms of supplying goods was changed subsequently and it was due to said change that the previous invoices were also modified while printing the said invoices for instituting the present case. However, the said explanation/contention of the ld. Counsel for plaintiff is devoid of any merits as neither of the plaintiff's witnesses has deposed anything about the same during their testimonies on record nor any computer expert or the concerned person who had altered the terms of invoices or changed the software package has been got examined or summoned by the plaintiff. It is also not explained by the plaintiff as to why the Bank Account Statement of plaintiff i.e. Mark PW1/3 has been redacted (entries blackned in the printout) and by whom. A certificate U/s 65B of Evidence dated 06.05.2022 executed by Mr. Sukhvinder Singh has been filed on record but the testimony/examination-in-chief of said Mr. Sukhvinder Singh, PW1 had already been recorded on 19.02.2020 before my Ld. Predecessor. Thus, the 65B Certificate/affidavit of Mr. Sukhvinder Singh is being attested/sworn/executed after more than two years of tendering documents by PW1. Even the said affidavit/certificate dated 06.05.2022 vaguely states that the printout of the invoices exchanged between the parties is the true copy of the electronic records maintained by the plaintiff and are an exact replica of the information available with the plaintiff. In para 5 of the said certificate it is being claimed by Mr. Sukhvinder Singh that the contents therein have not been CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 13 of 25 tempered, altered or changed with. Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device at relevant time. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. Thus, even the certificate dated 06.05.2022 under Section 65B Indian Evidence Act filed by the plaintiff's witness is not a proper certificate as per law and hence, the documents Mark DW1/2 and DW1/3 are also not proved as per law and same is not admissible under the law. The Evidence Act does not contemplate or permit the proof of an electronic CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 14 of 25 record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.The documents being relied by the plaintiff i.e. invoices mark PW1/2 (Colly) and Bank Statement Mark PW1/3 are computer outputs of electronic records. It is settled law that an electronic record is required to be proved as per section 65 B of Evidence Act. In Anvar P.V. Versus P.K. Basheer and others Civil Appeal No. 4226 of 2012 (Judgment dated 18.09.2014), a three- judge bench of Hon'ble Supreme Court has dealt with the issue of admissibility of electronic records and mode of proof of a documentary evidence in the form of electronic record. It has noted as follows:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 15 of 25 fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents;
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
14. Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence. ........
CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 16 of 2522. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65 B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
15. In a reference judgment in Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal Civil Appeal Nos. 20825-20826 of 2017 (Judgment dated 14.07.2020), Hon'ble Supreme Court has examined and interpreted section 65 B of Indian Evidence Act to hold that Anvar P.V. (supra) holds the ground in the field of electronic evidence. It has been noted as follows:
"72. The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65 B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer"
happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 17 of 25 system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65 B (1), together with the requisite certificate under Section 65B (4). The last sentence in Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
16. Thus, any document which is an electronic record can not be relied upon unless it is proved in accordance with section 65 B of Evidence Act. In the instant case, the certificate dated 06.05.2022 under Section 65B Indian Evidence Act filed by the plaintiff is not a proper certificate as per law and hence, the documents Mark PW1/2 and Mark PW1/3 are not proved as per law and same are not admissible under the law. The objections to tendering/admissibililty of said documents raised by the defendant's counsel is found to be correct and the said documents are held to be not proved as per law. As already noted above, the print outs of Mark PW1/2 and Mark PW1/3 were downloaded from a computer system which has not been identified by the defendant. Thus, the certificate dated 06.05.2022 executed by Mr. Sukhvinder Singh has no value and can not be relied upon. Significantly, Order XI Rule 6 (3) of the Code of Civil Procedure,(as amended and applicable in commercial cases) regarding electronic records mandates the declaration on oath to be filed by a party specifying (a) the parties to such Electronic Record; (b) the manner in which such electronic record was produced and by whom; (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time when the CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 18 of 25 electronic record was printed; (e) in case of e-mail ids, details of ownership, custody and access to such e-mail ids; (f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource; (g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;(i) that the printout or copy furnished was taken from the original computer or computer resource. However, majority of above said information required to be specified in terms of Order XI Rule 6 (3) of CPC elicited above, is not even contained in the affidavit (certificate) of certificate dated 06.05.2022 filed under Section 65B of the Indian Evidence Act which only in vague terms is containing an endeavor to put forth of compliance of conditions of Order XI Rule 6 (3) of CPC .For want of above said requisite specified information compliant of Order XI Rule 6 (3) (a) to (i) CPC, the electronic record i.e. Mark PW1/2 and Mark PW1/3 relied by plaintiff have no evidentiary value. The other witness examined on behalf of the plaintiff is PW2, Mr. Sachin Sharma who has deposed that plaintiff company has been working with the defendant since 2018 and one of the team members in their operation team was Mr. Harish Sharma who was majorily dealing with the defendant and executing all the orders placed by them. He also deposed that orders were placed by the defendant telephonically as well as through issuance of Purchase Orders CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 19 of 25 and that Mr. Harish Sharma used to deliver some of the goods to defendant on his personal guarantee. He deposed in para 6 of his evidence affidvit Ex. PW2/1 "It was earlier informed by Mr. Harish Sharma that due compliance of genertaing e-way bill for the said goods being delivered by him personally was being done by him, however, it later transpired after the disputes arose with the defendant and the Plaintiff Company, that such compliance was partially met my Mr. Harish Sharma." However, neither the said Mr. Harish Sharma has been got examined or summoned by the plaintiff. The ld. counsel for the plaintiff has argued that an FIR bearing no. 412/2019 dated 30.08.2019 was filed against said Mr. Harish Sharma etc. at PS Ambedkar Nagar U/s 408/120B/34 IPC in which final report/chargesheet is yet to be filed by the police. However, no police official has been got examined or summoned by the plaintiff. There is no document filed or proved on record regarding delivery of the goods to the defendant pertaining to the disputed invoices. No person who had delivered the goods to the defendant has been got examined or summoned by the plaintiff. The plaintiff could have proved the delivery of goods/products of the disputed invoices by examining or summoning the transporter/driver of the vehicle in which the goods were delivered/sent to the defendant. There is no date of delivery being disclosed by either of the witnesses examined on behalf of the plaintiff. Even the invoices being relied by the plaintiff do not bear any stamp/receipt/acknowledgment by the defendant. The plaintiff was in possession of best evidence regarding business transactions/ledger account but same has not been deliberately produced/proved/brought on record. The same CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 20 of 25 would have positively reflected the details of the actual transactions between defendant and the plaintiff. Non production of its regular books of account or duly audited balance sheet or even the GST records points towards the falsity of plaintiff's claim of having delivered the goods/products to the defendant in respect of disputed invoices. The ledger account of the plaintiff would have thrown light regarding the disputed invoices but the plaintiff deliberately withheld the said evidence from the Court and and this Court is constrained to take adverse inference against the plaintiff due to non-production of its books of accounts/ledger account. In the considered opinion of this court, the plaintiff has miserably failed to prove on record that any delivery of the goods/products were made by the plaintiff to the defendant against the disputed/unpaid invoices on the scale of preponderance of probabilities. The plaintiff has failed to discharge the onus cast on it to prove that it had supplied the goods pertaining to the ten disputed invoices to the defendant. Consequently, plaintiff has miserably failed to establish its case that it is entitled to a decree of the suit amount on account of the supplies made to the defendant. Accordingly, the issue no.1 is decided in favour of the defendant and against the plaintiff.
Issue No.5 Whether some of the bills relied by the plaintiffs are forged and fabricated, if so its effect? OPD
17. The ld. Counsel for defendant has argued that the plaintiff has miserably failed in proving any delivery qua the disputed invoices being made by the plaintiff. It has been argued that the ten disputed invoices are fictitous and the same were fabricated CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 21 of 25 by the plaintiff against which no medicine/products or drugs had ever been delivered to the defendant. The onus to prove this issue was upon the defendant and one witness has been examined by the defendant to discharge the said onus. DW1, Mr. Raj Kumar Garg has deposed that he is the partner of the defendant firm and that they had purchased certain medicial/pharmaceutical products form the plaintiff. He further deposed that whenever products were purchased/received by the defendant then the same were always checked and tallied with the invoice and acknowledgment was given on the invoice copy of the plaintiff. DW1 has deposed that only 8 invoices filed by the plaintiff are genuine and that there are remaining 10 invoices filed by the plaintiff which are fictitious, invented and fabricated against which no medicines/products/drugs have ever been received by the defendant. DW1, Mr. Raj Kumar Garg has further deposed that these 10 invoices have been forged by the plaintiff's official for the purpose of filing the false and baseless litigation so that plaintiff's investors can be shown pending litigation for outstanding recovery. The defendant has admitted the following invoices:
Details of Details of the invoice Amount of Sales/Purchase Order Invoice (In Rs.)
WO/Delhi/NCR/2017- HCAH/2018/2114 dt. 1487249.14/-
18/01789 dt. 31.03.2018 31.03.2018
SO/DEL/18-19/00171 DEL/18-19/0170 dt. 1222624.24 dt. 11.05.2018 15.05.2018 SO/DEL/18-19/00233 DEL/18-19/0230 dt. 1999697.44 dt. 31.05.2018 31.05.2018 SO/DEL/18-19/00314 DEL/18-19/0310 dt. 545135.50 CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 22 of 25 dt. 24.06.2018 24.07.2018 SO/DEL/18-19/00346 DEL/18-19/0341 dt. 999839.40 dt. 30.06.2018 30.06.2018 SO/DEL/18-19/00428 DEL/18-19/0423 dt. 355012.06 dt. 16.07.2018 16.07.2018 SO/DEL/18-19/00449 DEL/18-19/0444 dt. 231747.60 dt. 20.07.2018 20.07.2018 SO/DEL/18-19/00455 DEL/18-19/0450 dt. 564564.00 dt. 21.07.2018 21.07.2018
18. It has been further deposed by the DW1, Mr. Raj Kumar Garg that the defendant has already made the payment against the aforementioned admitted invoices. It is averred that the total value of the abovesaid admitted invoice was Rs. 74,05,869/- and the defendant has already made payment of total amount of Rs. 74,49,837/- to plaintiff. The original admitted invoices received by the defendant from the plaintiff with respect to the products purchased/received from plaintiff are Ex. DW1/1 (Colly.). During his cross-examination on 25.05.2022, DW1 has stated on oath that products ordered by the defendant used to be delivered on the same day or the next day by the Executive of the plaintiff and that the acknowledment of the goods received was always given. He also stated that acknowledgment used to be given on the copy of invoices which used to be retained by the plaintiff. DW1 has asserted that the payment was done "on account basis" and denied the suggestion given by the plaintiff's counsel that the same was done on invoice to invoice basis. The defendant has not got summoned any police official to establish that they had filed any complaint regarding the forgery or fabrication of the disputed invoices with police or any other authority. No expert witness or CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 23 of 25 any scientific expert has been got summoned or examined by the defendant to prove that the ten invoices disputed by the defendant are forged and fabricated. Although, the plaintiff has not been able to establishO delivery of goods/products mentioned in the disputed invoices but that would not ipso-facto mean that the invoices had been forged or fabricated by the plaintiff. The evidence brought on record by the defendant is an insufficient evidence and it cannot be held from the testimony of DW1 that the disputed invoices were forged or fabricated. According to the defendant's pleading in its written statement dated 26.07.2019, the plaintiff company has filed cases against various customers and the suppliers on the basis of fictitious and invented invoices to satisfy its investors regarding recoverable debts of the plaintiff. However, not even a single investor or any such customer has been named or got summoned/examined by the defendant. In the absence of any police complaint or scientific investigation qua the disputed invoices by the defendant filed or proved on record, it cannot be held that the disputed invoices are forged or fabricated on the basis of the evidence available on record in the present matter on the scale of preponderance of probabilities. In the considered opinion of this Court, there is insufficient evidence adduced by the defendant to prove the said issue in its favour and the defendant has failed to discharge the onus cast on it to prove that the disputed bills relied by the plaintiff are forged and fabricated. Accordingly, the issue no.5 is decided against the defendant.
CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 24 of 25ISSUE NO. 6 :
Relief.
19. In view of the foregoing discusssions and findings on the issues, the plaintiff is not entitled for any relief. Accordingly, the suit of the plaintiff is hereby dismissed with no order as to costs.
20. File be consigned to Record Room after necessary compliance.
Announced in the open Court on 29th Day of August 2023 (Prem Kumar Barthwal) District Judge (Commercial Courts)-01, South District/Saket Courts, New Delhi.
CS (Comm) No. 274/19 Health Care At Home India Pvt. Ltd. Vs. Laxmi Meditech Page 25 of 25