Delhi District Court
M/S Traveller India International vs Ishwari Shoes Agencies on 16 July, 2022
-1-
IN THE COURT OF SH. GURDEEP SINGH
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
In the matter of:-
CNR No. : DLNW01-006571-2018
CS(Comm.) No. : 333/2022
1. M/s Traveller India International
Through Its Prop/ Partner
Sh. Tarun Gupta
Address : SE-21, Ground Floor
Singal Pur, Gurudwara Road
Shalimar Bagh
Delhi - 110 088
...............Plaintiff
VERSUS
1. Ishwari Shoes Agencies
Through its proprietor/ partner's
Sh. Prakash Gunani
Shop NO.1 & 2, Swarnkar Market
Behind Nagar Nigam
Jodhpur - 342001, Rajasthan
..................Defendant
Date of Institution : 07-06-2018
Date of transfer to this court : 07-10-2020
Date of reserving order : 04-06-2022
Date of pronounced of order : 16-07-2022
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs.16,17,826/- alongwith pendente lite and future interest filed by plaintiff against the defendant.
2. The case of the plaintiff as set out in the plaint is that plaintiff is a proprietor of M/s Traveller (India) International and engaged in the business of manufacturing and trading in all kinds of footwear items. The defendant CS (Comm.) No.: 333/2022 Page 1 of 12 -2- has been purchasing footwear items from plaintiff since 2014 on credit as well as on cash basis, against the bills raised by plaintiff. Further, it is averred that the plaintiff maintains a running, mutual and current account for the purchases made by the defendant as well as payment on account from time to time. It is stated that plaintiff lastly supplied the goods to defendant vide invoice no. TII-0239 dated 24-12-2015 and thereafter there has been no transaction between the defendant and the plaintiff. Further, as per ledger account, Rs.1617826/- is due, outstanding and payable by defendant till date against the goods supplied by plaintiff to the defendant. Despite several requests and reminders, the defendant did not pay the outstanding amount and hence the suit is filed.
3. Summons of the suit was issued to defendant. The defendant contested the suit and filed written statement claiming inter alia that plaintiff has filed false and fabricated statement of account and alleged amount is neither due nor payable by the defendant. It is stated that during business transaction, the plaintiff sent defective goods to the defendant and the defendant returned the said defective goods to the plaintiff amounting to Rs.2,77,308/-, the said amount is still due upon the plaintiff and plaintiff has neither paid the said amount nor sent the correct goods to the defendant till date despite the fact that the plaintiff has taken the entire supplied goods amount from the defendant. Further it is stated that plaintiff has also assured to the defendant that plaintiff shall give the 10% discount on the total order but the plaintiff also not given the said CS (Comm.) No.: 333/2022 Page 2 of 12 -3- 10% discount to the defendant. During the entire business transaction plaintiff supplied total order / goods of Rs.3892826/- to the defendant and discount amount on the total goods amount becomes Rs.389282/- which is also due upon plaintiff.
4. Replication to the written statement has also been filed by plaintiff controverting the averment made in the written statement and reiterating the contents of the plaint.
5. It is pertinent to mention here that suit was filed on 05-06-2018 where short span of passing of Commercial Courts Act, 2015 and therefore affidavit of admission/ denial was not filed and admission/ denial of documents was also not done.
6. Vide order dated 17.12.2018, following issues were framed :-
(i.) Whether the plaintiff is entitled to the recovery of the suit amount ? O.P.P. (ii.) Whether the plaintiff is entitled to any interest on the suit amount ? If so, at what rate and for what period ? O.P.P. (iii.) Relief.
7. In order to prove his case, the plaintiff filed his evidence by way of affidavit and examined proprietor as PW-1.
8. Defendant, however, chose not to examine himself/ any witness.
CS (Comm.) No.: 333/2022 Page 3 of 12 -4-9. I have heard Sh. K. V. S. Gupta and Sh. N. K. Bhamri, counsel for plaintiff and Sh. Harish Kumar, counsel for defendant. I have also gone through the record.
10. Both parties also filed written submission. I have also gone through the same.
11. My issue wise findings are as under:-
Issue No.1
12. Issue no.1 - Whether the plaintiff is entitled to the recovery of the suit amount ? O.P.P.
13. The plaintiff has filed evidence by way of affidavit on the lines of plaint and proved ledger account as Ex.PW-1/1 and copies of several Invoices including invoice no. TII- 0239 dated 24-12-2015 against which lastly goods was supplied to defendant by the plaintiff as Ex.PW-1/2 (Colly.) He was cross-examined by the defendant. In his cross-examination, he denied the suggestion that he received payment through DD or cash and he was confronted with portion of the plaint where it was so recorded. He also denied suggestion that statement of account Ex.PW-1/1 is self generated statement. He stated that he has not filed certified copy of statement of accounts from the auditor nor any income tax audit report, VAT tax report etc. and voluntarily stated that he can produce the same and denied that he has filed wrong, false and fabricated statement of account and therefore he has not filed any authenticated documents regarding the statement of accounts filed by him. He also denied that payment CS (Comm.) No.: 333/2022 Page 4 of 12 -5- received by him from the defendant also not mentioned in his statement of account. He also denied that defendant returned the defective goods to him worth Rs.277308/-. He further denied that there are verbal agreement between him and the defendant that he will give the discount @ 10% on the goods sent by him to the defendant and amount of Rs.389282/- is due upon him which is discounted amount upon the total goods sent by him to the defendant. He did not remember if he had shown the total outstanding amount of Rs.24,87,826/- in case filed u/s 138 N. I. Act against the defendant. He stated that he transported the goods through the transportation to the defendant. He admitted that he has not filed any registration certificate regarding the registration of his firm.
14. PW-1 was further cross-examined on recall. In his further cross-examination, he stated that he has not brought any Income Tax Audit Report and VAT report regarding the transaction in question. He admitted that the amount of Rs3707826/- which he has mentioned in his replication, not mentioned in his statement of account, which he has filed in the present suit. He admitted that Rs.180000/- which has been paid by the defendant to him, not mentioned in his statement of account filed in the present suit as the case was filed earlier and he got the same later in case under S. 138 N. I. Act. He admitted that case filed under S. 138 N. I. Act, he has stated that Rs.2487826/- is outstanding, due and payable by defendant to him, however, denied that the amount of Rs.4172826/- as shown grand total in statement of account filed by him was never CS (Comm.) No.: 333/2022 Page 5 of 12 -6- due upon the defendant and amount of Rs.1617826/- as shown as debit balance in the statement of account was never due upon the defendant. He also admitted that defendant has paid total a sum of Rs.20,90,000/- to him till date. He also denied that cash payments were also being made by the defendant and voluntarily stated that the terms of cash and credit sale were agreed but no sale in cash were made. He admitted that he has filed complaint against the defendant in MSME Council.
15. Ld. counsel for defendant submitted that firstly case, which is based on the statement of account alone, cannot be admitted to be correct as per S. 34 of Indian Evidence Act. Further, there is no registration of proprietorship firm under GST or other provisions. Further statement of account is not stamped. It is also submitted that in the plaint Rs.1617826/- is stated to be due whereas in replication amount claimed is different as Rs.1,80,000/- was received under N. I. Act which is not reflected. He further submitted that documents filed by plaintiff are computer generated documents, which is not supported by requisite certificate under S. 65-B of Indian Evidence Act and therefore same cannot be looked into. Further, admittedly the plaintiff has also filed claim in SMSE Council claiming amount and hence present suit is not maintainable as plaintiff cannot be permitted to file two claims simultaneously for same cause of action. In support of his contention, learned counsel for defendant has cited Ishwar Das Jain (dead) through LRs v. Sohan Lal (dead) by LRs, MANU/SC/0747/1999 and Anwar P. V. v. P. K. CS (Comm.) No.: 333/2022 Page 6 of 12 -7- Basheer, MANU SC/0834/2014.
16. On the other hand, learned counsel for plaintiff submitted that statement of account is admissible under S. 34 of Indian Evidence Act. He has filed invoices supporting entries in the statement of account alongwith goods transport receipt of having dispatched the goods. Further he submitted that defendant has not stepped into witness box and therefore adverse inference has to be drawn against him. Statement made in the pleadings, written statement are not supported by any evidence with respect to submission that defective goods were supplied and plaintiff has assured 10% discount on purchases.
17. In support of his submission, learned counsel for plaintiff has cited judgment in case of Nagindas Ramdas v. Dalpatram Ichharam @ Brijram & Ors., (1974) 1 SCC 242 and stated that admission made in the pleadings are having higher evidenctiary value than inference on admission. The other cited judgment in case of Avtar Singh & Ors. v. Gurdial Singh & Ors, (2006) 12 SCC 552 is also on the same point.
18. He also cited judgment of our own Hon'ble High Court in case titled Nikita Gupta v. Alok Gupta & Ors, CS(OS) No. 553/2016 in which judgment of Nagindas Ramdas (supra) and Avtar Singh & Ors, (supra) were referred to.
19. He also cited judgment in case of Vidhyadhar v. Manikrao & Anr, (1993) 3 SCC 573 with respect to presumption if a party abstains from entering the witness box, an adverse inference has to be drawn against him.
CS (Comm.) No.: 333/2022 Page 7 of 12 -8-20. Firstly coming to the submissions of defendant regarding complaint made by plaintiff before MSEM bars present suit. The complaint before MSME is entirely different than right of plaintiff to file a suit for recovery of money. MSME is an additional forum made available to micro, small and medium enterprises to expedite payment of dues and therefore it cannot bar right of plaintiff to file suit for recovery of money due. The remedy provided under MSME is in addition to civil law remedy for filing of civil suit. Therefore this contention of learned counsel for defendant is without merit and hence rejected.
21. Now coming to second submission that proprietorship firm is not registered. Registration of proprietorship firm is not necessary and only partnership firm is necessarily required to be registered under Partnership Act and company incorporated under Companies Act requires registration. Registration with respect to payment of GST and VAT required for the purposes of collection of tax and non registration of the proprietorship firm can at the best have consequences in the said Acts. The proprietorship firm run by individual person is competent to file suit in his own name or in the name of proprietorship firm. Therefore this contention of learned counsel for defendant is devoid of merit and rejected.
22. Now coming to the submission that statement of account, which is computer generated statement, cannot be proved without Certificate under S. 65-B of Indian Evidence Act. There is no quarrel to the legal proposition in respect to CS (Comm.) No.: 333/2022 Page 8 of 12 -9- judgment of Anwar P. V. (supra). However, the facts of the present case is quite different. The plaintiff in his evidence has nowhere stated that ledger account filed by him is computer generated statement of account nor defendant in his cross-examination has put any question that said statement is computer generated which requires certificate under S. 65-B and hence cannot be proved. In the absence of averment and there being no cross-examination on this aspect, the ledger/ statement of account cannot be treated as computer generated. Moreover, no objection has been raised by the defendant regarding proving of the document raising objection for not producing original ledger account. The same therefore stands proved.
23. Now coming to submission that entry in ledger account cannot prove the liability. The plaintiff has not only filed ledger account but also has supported same with detailed invoices with GR of the transporter showing delivery of goods and dispatch of goods. Therefore entries in the ledger stands proved by the invoices and GR entries. In the cited judgment Ishwar Das Jain (supra), the Hon'ble Supreme Court had held that under S. 34 of the Evidence Act, entries in 'account books' regularly kept in the course of business are admissible though they by themselves cannot create any liability. There is no quarrel to the legal proposition. However, in the present case apart from ledger entries, plaintiff has further proved liability by way of invoices and proved dispatch of goods and delivery of goods. Therefore this judgment does not help defendant in any manner.
CS (Comm.) No.: 333/2022 Page 9 of 12 -10-24. The defendant has claimed that ledger account is false and fabricated and self generated but he has failed to produce his own statement of account regarding transaction. It is admitted case of parties that transactions were going on between them and defendant has also admitted in his written statement that plaintiff had supplied goods/ orders to the tune of Rs.38,92,826/- for which he was claiming discount at the rate of 10%. He had merely stated that he had paid all the amounts and amount of defective goods or amount with respect to discount at the rate of 10% is payable by the plaintiff to him, however, he has not filed any statement of account contradicting claim of plaintiff showing payments made by them.
25. Now coming to the submission with respect to discrepancy in amount claimed, plaintiff in his evidence has clarified and also clarified in replication that Rs.180000/- was received from defendant under complaint case under Section 138 N. I. Act which could not be incorporated in the ledger account or suit as said amount was received subsequent to filing of the present suit.
26. Therefore in the totality of the facts and circumstance, I am of the opinion that plaintiff has succeeded in proving his case that as per ledger account, Rs.16,17,826/- is due, outstanding and payable by defendant against the goods supplied by plaintiff to the defendant against several invoices Ex.PW-1/2 (Colly.) It is also proved that after filing of the suit, plaintiff has also received Rs.1,80,000/- from defendant in complaint case under S. 138 N. I. Act CS (Comm.) No.: 333/2022 Page 10 of 12 -11- which is not adjusted against the said amount as the said amount was received subsequent to filing of the suit. Therefore after adjusting Rs.1,80,000/-, I am of the opinion that plaintiff is entitled to recover Rs.14,37,826/- from defendant against the goods supplied to defendant by the plaintiff against several invoices Ex.PW-1/2 (Colly.).
27. As per above discussion, the issue no.1 is decided in favour of plaintiff and against the defendant. Accordingly, I am of the opinion that plaintiff is entitled to recover Rs.14,37,826/-from defendant.
Issue no.2
28. Issue no.2 - Whether the plaintiff is entitled to any interest on the suit amount ? If so, at what rate and for what period ? The plaintiff has claimed pendente lite and future interest from the date of filing of the suit till its realization. The plaintiff has placed on record invoices and proved same as Ex.PW-1/2 (Colly.) As per invoices, there are certain terms and conditions agreed upon between the parties. As per terms & conditions no.3, it is agreed between the parties that interest @ 24% p.a. will be charged if payment not made within 30 days. Therefore there was contract between the parties regarding interest on delayed payment. Therefore in view of contract between the parties regarding rate of interest and the transaction is commercial in nature, I am of the opinion that plaintiff is entitled to recover interest from the defendant at the rate of @ 24% per annum.
29. As per discussion above, issue no.2 is also decided in CS (Comm.) No.: 333/2022 Page 11 of 12 -12- favour of plaintiff and against the defendant. Accordingly, plaintiff is entitled to recover pendente lite interest and future interest @ 24% per annum from the date of filing of the suit till its realization.
RELIEF
30. In view of my findings in respect of issues nos.1 and 2, the plaintiff is entitled to following relief:-
A) Plaintiff is entitled to decree for a sum of Rs.14,37,826/- and entitled to recover same from defendant.
B) plaintiff is entitled to recover pendente lite interest and future interest @ 24% per annum on the above stated amount from the date of filing of the suit i.e. 07-6-2018 till its realization.
31. As per discussion above, suit is decreed in favour of plaintiff and against the defendant with actual cost of suit, cost of pre-institution mediation and fee of the advocate which is assessed at Rs.22,000/-. Decree sheet be drawn accordingly.
32. File be consigned to record room.
Announced in Open Court Digitally signed
by GURDEEP
today i.e. 16-07-2022 GURDEEP SINGH
SINGH Date: 2022.07.16
17:32:47 +0530
(GURDEEP SINGH)
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH WEST/ROHINI/DELHI
CS (Comm.) No.: 333/2022 Page 12 of 12