Delhi District Court
Mayara Aluminium Formwork Pvt Ldt vs Suncity Project Pvt Ltd on 4 March, 2025
1
In the Court of Dig Vinay Singh, District Judge (Commercial Court)-03,
West, Tis Hazari Courts Extension Block, Delhi
CNR No. DLWT01-004681-2023
CS (COMM) No.425/2023
M/S MAYRA ALUMINIUM FORMWORK PVT LTD.
Through its AR and Director
Sh. Manish Gupta
Regd. Office at: G-181. S/F, Pushkar Encl.
Paschim Vihar, West Delhi, Delhi-110042 ......... Plaintiff
Versus
M/S SUNCITY PROJECTS LTD.
Through its Director
LGF-10, Vasnat Square Mall,
Plot-A, Sector B, Pocket-V, Community Centre,
Vasant Kunj, New Delhi-110070
Also at:
Suncity Business Tower,
2nd Floor, Sector-54, Golf Course Road,
Gurugram-122002 ...... Defendant
Date of institution: 31.05.2023
Date of arguments: 11.02.2025 &
04.03.2025
Date of judgment: 04.03.2025
JUDGMENT
1. This is a 'commercial suit' for recovery of ₹ 22,96,424/- (₹ Twenty-
Two Lakhs Ninety-Six Thousand Four Hundred Twenty-Four) along with pendent lite and future interest sought @ 18% from 03.04.2021. 1.1. The present judgment is directed against the above-named sole defendant company. Initially besides the company the plaintiff had also impleaded its two Directors as defendants, and they were deleted Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 1 of 25 2 from the array of parties vide order dated 30.11.2023, and thereafter, summons were issued only to the defendant company.
1.2. The dispute between the parties is a 'commercial dispute' within the definition of Section 2 (1) (c) (i) of the Commercial Courts Act, 2015, being a dispute arising out of ordinary transactions between merchants.
1.3. Pre-Institution mediation between the parties remained unsuccessful vide a Non-Starter Report dated 04.03.2023, issued by the concerned District Legal Services Authority.
2. The suit seeks recovery of the said amount on the ground that the plaintiff company is engaged in manufacturing, distributing, and selling high-quality Industrial Cup Locks and Couplers, Cable Trays, Industrial Cup locks and Industrial Couplers, etc., of different sizes. As per the orders placed by the defendant, the defendant was delivered various Aluminum products at Gurugram, Haryana, against 25 invoices between the period of 23.08.2020 to 03.04.2021. It is claimed that the total value of goods supplied to the defendant was ₹ 2,74,60,431/-. Against it, the defendant made partial payments totaling ₹ 2,58,12,415/-. It left a balance of ₹ 16,48,016/- (wrongly mentioned in the plaint as ₹ 16,48,106/-). The last mentioned amount is stated to be due towards the price of goods supplied. It is the case of the plaintiff that despite various telephonic conversations, WhatsApp messages, and e-mails, as also a legal notice dated 15.11.2022, which was delivered to the defendant on 18.11.2022, the defendant did not pay the balance amount.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 2 of 25 3 2.1. In the above-mentioned suit amount of ₹ 22,96,424/-, not only the plaintiff has included the interest worth ₹ 5,93,318/- calculated @18%, for the period 03.04.2021 till the date of filing of the suit, but also legal expenses of ₹ 55,000/- are included in the said amount. Yet in the prayer clauses A & B of the plaint, the plaintiff prays interest @18% from 03.04.2021 till realization. The jurisdiction of this Court is claimed on the ground that the defendant placed orders at the office of the plaintiff where negotiations were done, the acknowledgment/ commitments were made, retail invoices were generated, and the ledger was maintained.
3. The sole defendant contested the suit, not only challenging the territorial jurisdiction of this Court but also claiming that no amount is due. It is the case of the defendant that the plaintiff has deliberately concealed crucial facts and has also pleaded falsity. It is claimed that no part of the cause of action arose within the jurisdiction of this Court as the invoices were generated by the plaintiff in Rajasthan, goods were supplied at Gurugram in Haryana, and the version of the plaintiff about part of the cause of action arising in Delhi is falsely pleaded.
3.1. It is claimed that a purchase order dated 29.06.2020 was placed upon the plaintiff, which also contains a jurisdiction clause conferring exclusive jurisdiction upon the Haryana court, and not only did the plaintiff conceal the existence of that purchase order but falsely claimed jurisdiction of this Court.
3.2. It is also claimed that besides the purchase order, the plaintiff concealed an e-mail dated 23.02.2021 that was exchanged between the Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 3 of 25 4 parties, and therefore, it is a case of material concealment of facts. It is also claimed that the plaintiff failed to fulfill its part of obligations under the purchase order in question, due to which the defendant suffered a loss, and the defendant is entitled to recover a sum of ₹ 31,65,000/- from the plaintiff.
3.3. As per the defendant, the plaintiff, vide its offer letter dated 17.05.2019, made tall claims about its products and gave an offer for the supply of Aluminum Formwork (AF for short) for a real estate project of the defendant that was ongoing at that time at Gurugram. Vide another e-mail dated 16.06.2020, the plaintiff again submitted the price and terms and conditions for the supply of AF, which also the plaintiff concealed. It is claimed that it was the plaintiff who approached the defendant and not otherwise, and thereafter, the purchase order was executed, which also bears the signature of the representative of the plaintiff.
3.4. The defendant also claims that no multiple orders were placed upon the plaintiff as claimed in the plaint, but there was only one purchase order placed upon the plaintiff. The 25 invoices relied upon by the plaintiff are claimed to be fabricated. It is claimed that as per the purchase order condition no.6, the shell plan was the 7 th day of the purchase order, and after approval of the Shell Plan, a Mock-Up was to be completed within 60 days. The plaintiff failed to discharge its obligation, and the plaintiff completed only 50% of the Mock-Up till 12.12.2020, and 50% was done on 11.01.2021. Accordingly, an e- mail dated 23.02.2021 was sent to the plaintiff by the defendant in which the defendant pointed out the delay and the sufferance of loss. Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 4 of 25 5 3.5. It is claimed that as per clause 10 of the purchase order, the defendant is entitled to claim liquidated damages @5% per week in the total project value, however, as a goodwill gesture the defendant considered liquidated damages for 4 weeks only.
3.6. It is claimed that as per clause 4 of the purchase order, the defendant paid 10% on 01.07.2020 and 40% on 05.08.2020, and the defendant also made further payments as per the supply, but since the plaintiff failed to fulfill the obligation in a timely manner, there is no amount due.
3.7. Receipt of notice is denied by the defendant and it is claimed that the invoice does not bear the signature/ acknowledgment of the defendant. 3.8. The rate of interest is also disputed by the defendant claiming that there is no such agreement between the parties.
3.9. The defendant even challenged the competence of the AR of the plaintiff in filing the suit.
3.10. In its affidavit of admission/denial also the defendant denied the invoices and the ledger relied on by the plaintiff.
4. In Replication, the plaintiff did not specifically deny the averments of the WS qua the purchase order, the e-mails relied on by the defendant, and the Replication is conspicuously silent as to the purchase order dated 29.06.2020; the letter dated 17.05.2019; the e-mails dated 23.02.2021 & 16.06.2020. It is, however, claimed that this Court has jurisdiction as part of the cause of action that arose within the jurisdiction of this Court. Otherwise, the plaintiff reiterated the averments of the plaint.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 5 of 25 6
5. From the pleadings of the parties, the following issues were framed for determination:-
"1. Whether this Court lacks territorial jurisdiction? OP Defendant
2. Whether the purchase order dated 29.06.2020 was executed between the parties and it is signed by somebody on behalf of the plaintiff also? OP Defendant.
3. Whether the plaintiff failed to perform its part of obligations under the said purchase order or whether the defendant suffered losses? OP Defendant.
4. Whether the plaint has been signed, verified and instituted by a competent person and duly authorized person? OP Plaintiff
5. Whether the plaintiff is entitled to recovery of ₹22,96,424/-? OP Plaintiff
6. If the answer to the last issue is affirmative, whether the plaintiff is entitled to any interest. If yes, for which period and at what rate? OP Plaintiff
7. Relief."
6. In support of its case, the plaintiff only examined its AR, namely, Manish Gupta as PW1, who tendered his evidence by way of affidavit Ext.PW1/A. The deposition of PW1 is in line with the averments contained in the plaint and Replication. In his evidence, the plaintiff witness exhibited the following documents: -
Board of Resolution Ext.PW1/1;
The ledger account maintained by the plaintiff Ext.PW1/3; Invoices Ext.PW1/4 (1-25);
Non-starter Report Ext.PW1/5 and;
Certificate under Section 65B of the Evidence Act Ext.PW1/6.
6.1. In its affidavit in evidence, PW1 had mentioned the Master Data of the defendant company as Ext.PW1/2, but it was de-exhibited and was given Mark PX1, in the absence of a Certificate under Section 65B of the Evidence Act. Otherwise, the defendant did not dispute this document and even otherwise there was no need for this document to be proved.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 6 of 25 7
7. On the other hand, the defendant also examined only one witness, namely, Vivek Kumar Singh as DW1. He too tendered his evidence by way of affidavit Ext.DW1/A, while reiterating the averments of the WS. DW1 relied upon the following documents:-
Authorization in favour of DW1 Ext.DW1/1;
Purchase order dated 29.06.2020 Ext.PW1/D1;
Print out of e-mail dated 23.02.2021 Ext.PW1/D4; Letter dated 17.05.2019 Ext.PW1/D2;
Printout of e-mail dated 16.06.2020 Ext.DW1/5; Print out of e-mail dated 12.02.2021 Ext.PW1/D3 and; Certificate under Section 65B of Evidence Act Ext.DW1/5A.
8. I have heard Ld. Counsels for the plaintiff and defendant and I have also perused their written submissions, as well as the precedents relied upon by both sides. The respective contentions of the two sides are being discussed hereinafter at the appropriate stage to avoid repetition
9. Issue-wise findings are as follows:
10. Issue no.1 "Whether this Court lacks territorial jurisdiction? OP Defendant"
10.1. Though during the trial, the defendant did challenge the territorial jurisdiction of this Court based on a clause contained in the purchase order Ext.PW1/D1, but at the stage of final arguments, the defendant gave up the said challenge and stated that since evidence from both sides was recorded, the case may be decided on merits, and the defendant gives up this challenge.
10.2. Since this challenge is given up by the defendant, this issue becomes infructuous, and also, there is no point in discussing the precedents Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 7 of 25 8 relied upon by the two sides on this aspect of the matter. Suffice it to note that in the purchase order Ext.PW1/D1, indeed, there is a clause conferring jurisdiction upon Haryana Courts. On the other hand, in one out of the 25 invoices, i.e., Invoice Ext.PW1/4(25), there is a clause mentioned that the jurisdiction shall be that of Delhi Courts. On the other 24 invoices, there is no such clause mentioned. Nevertheless, in all 25 invoices, the details of the bank of the plaintiff where the payment was to be made are mentioned, which is of Paschim Vihar Delhi, which falls within the jurisdiction of this Court. It is an admitted case of the defendant, as admitted in cross-examination by DW1, that payments made to the plaintiff were made through the banking channel. Accordingly, part payments were made in the bank of the plaintiff located within the jurisdiction of this Court. 10.3. Since the defendant has given up the challenge of territorial jurisdiction therefore this Court is not entering into the arguments of the two sides as to what would be the effect of conferring exclusive jurisdiction upon Haryana Courts in the purchase order and the factum of payment within the jurisdiction of this Court as well as the clause of Delhi jurisdiction contained in one of the invoices. 10.4. Suffice it to note that the law is well settled that where part of the cause of action arises within the jurisdiction of more than one court, the parties are free to confer exclusive jurisdiction upon one of those courts where part of the cause of action arose, but the parties cannot confer jurisdiction upon a Court under which no part of the cause of action arose.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 8 of 25 9 10.5. The reliance placed by the plaintiff upon the cases of A.B.C. Lamniart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem 1989 2 SCC 163, Reliance Industries Ltd. Vs. Imperial Pigments (P) Ltd. 2003 SCC OnLine Del 296; A.V.M. Sales Corporation Vs. Anuradha Chemicals Pvt. Ltd. 2012 2 SCC 315; Auto Movers Vs. Luminous Power Technologies Pvt. Ltd. 2021 SCC OnLine Del 4387 and; Startech Enggcon Pvt. Ltd. Vs. Bhundelkhand University 2008 SCC Online Del 50, need not be discussed since the defendant has given up the said challenge as to the jurisdiction.
10.6. Issue No. 1 is rendered infructuous.
11. Issue no.4 "Whether the plaint has been signed, verified and instituted by a competent person and duly authorized person? OP Plaintiff"
11.1. The plaintiff relied upon and proved Ext.PW1/1, which is a Resolution in favour of PW1. At the time of the exhibition of this document, the defendant did not challenge the mode of proof of this document even though the plaintiff did not furnish Minutes Book qua the meeting of the Board of Directors of the plaintiff. Indeed, one question was asked during the cross-examination of PW1 in which PW1 admitted that no such Minute Book was brought.
11.2. PW1 also answered that at the time of his evidence, he was holding the post of Assistant Manager in the plaintiff. Ext.PW1/1 is silent as to the designation of PW1 in the plaintiff company.
11.3. Order 29 Rule 1 of the Code of Civil Procedure provides that in suits by or against a corporation, any pleading may be signed and verified Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 9 of 25 10 on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who can depose to the facts of the case. In terms of Order 29 Rule 1 of the CPC, any principal officer of a corporation can sign and verify the pleadings. 11.4. In United Bank of India v. Naresh Kumar, (1996) 6 SCC 660, SC held as follows;
"10. ........... In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer."
11.5. A Division Bench of Delhi High Court in the case of Kingston Computers (I) P. Ltd. v. State Bank of Travancore 153 (2008) DLT 239 (DB) also held that a principal officer is authorized by virtue of Order 29 Rule 1 CPC not only to sign and verify the pleadings, but also therefore to institute the suit.
11.6. Similarly, in the case of MTNL Vs. Bharat Bhushan Sharma decided by Hon'ble Delhi High Court on 06.09.2010 in RFA no.343/2001, Hon'ble High Court relying on the judgment of United Bank of India (supra) stated in para 5 that there is a presumption of valid institution of a suit once the same is prosecuted for a number of years.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 10 of 25 11 11.7. In the case of M/s Sangat Printer Pvt. Ltd. Vs. Wimpy International Limited 2012: DHC: 338, Hon'ble DHC held that the cases filed by a company should not be dismissed on technical grounds concerning the validity of institution.
11.8. In Atlinga Builders Pvt Ltd and Ors. vs. Catholic Syrian Bank Ltd and Ors. (22.11.2011 - DELHC): MANU/DE/6657/2011, Hon'ble Delhi HC has held that the very fact that the suit by the bank is contested to the hilt right till the stage of final judgment is itself enough to hold that the suit is, in terms of Order 29 CPC, validly instituted. 11.9. In Absogain Retail Solutions vs. Puma Se (15.05.2023 - DELHC):
MANU/DE/3233/2023, Hon'ble Delhi HC has held:
"26. Moreover, the Supreme Court in United Bank of India Vs. Naresh Kumar and Others, MANU/SC/0002/1997 : (1996) 6 SCC 660 has held that "Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause."
11.10.
11.11. In this case suit was filed on 31.05.2023 and it has continued for almost 2 years therefore there is an implied ratification qua the filing of the suit and, therefore, issue no. 4 has to be decided in favour of the plaintiff.
11.12. Issue no. 4 is decided in favour of the plaintiff and against the defendant.
12. Issue No. 2"Whether the purchase order dated 29.06.2020 was executed between the parties and it is signed by somebody on behalf of the plaintiff also? OP Defendant."
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 11 of 25 12 12.1. During final arguments, the plaintiff did not advance any contention as to this issue and instead stated that though the plaintiff denies the correctness and existence of the purchase order dated 29.06.2020 Ext.PW1/D1, but the plaintiff is not pressing on this issue, and the same may be decided by the Court on merit.
12.2. Though the plaint is completely silent about the purchase order dated 29.06.2020 and despite the fact that the defendant specifically pleaded the existence of that purchase order Ext.PW1/D1 by claiming that it also bears the signature of the representative of the plaintiff, the plaintiff did not admit this document in the Replication or its affidavit of admission/denial filed along with the Replication. 12.3. Nevertheless, during his cross-examination, PW1 specifically admitted that this purchase order Ext.PW1/D1 bears the signature of Mr. G. V. Raju, who was the CEO of the plaintiff.
12.4. Given the admission of PW1 qua this document during cross-
examination, this issue no.2 is straightaway decided in favour of the defendant and against the plaintiff.
13. Issues No. 3 & 5"3. Whether the plaintiff failed to perform its part of obligations under the said purchase order or whether the defendant suffered losses? OP Defendant.
5. Whether the plaintiff is entitled to recovery of ₹22,96,424/-? OP Plaintiff"
13.1. Both these issues are taken up together, being interconnected.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 12 of 25 13 13.2. First, let it be clarified that as per the plaintiff's case, the balance amount qua the price of goods is ₹ 16,48,016/- (wrongly mentioned as ₹ 16,48,106/- in the plaint). On this amount, the plaintiff added pre- suit interest @18% as well as legal expenses while arriving at the suit amount.
13.3. It is an admitted case of PW1 that none of the 25 invoices relied upon in the present matter contains the signature of the defendant in acknowledgment of receipt of goods or the performance of its part of the contract by the plaintiff. There is no other delivery proof, led by the plaintiff on record.
13.4. Besides the 25 invoices, only the ledger account maintained by the plaintiff has been proved by the plaintiff. The law is well-settled that the ledger account maintained by a business entity in its ordinary and regular course of business cannot by itself create liability of a defendant. Merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business, cannot by itself saddle liability upon a defendant. There has to be further evidence to prove the liability that appears in the books of account, except where a defendant accepts the correctness of the books of account and does not challenge the same. Erstwhile Section 34 of the Indian Evidence Act and corresponding Section 28 of BSA are clear on this point. In the present matter the defendant never accepted the books of account maintained by the plaintiff. 13.5. In this regard, the defendant has also relied upon the case of Sait Tarajee Khimchand and Ors. Vs. Yelamarti Satyam and Ors. (1972) 4 SCC 562; Chandradhar Goswami & Ors. v. Gauhati Bank Ltd. AIR Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 13 of 25 14 1967 SC 1058 and; Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426, claiming that no liability can be fastened merely based on ledger entries without any other proof of business transaction and, even the original complete ledger book has not been filed by the plaintiff in terms of Section 34 of the Evidence Act.
13.6. A plaintiff cannot merely rely upon its ledger account to impose liability upon the other side. Under Sec. 34 of the Indian Evidence Act, the statement of account proved by a party cannot by itself impose liability on the other side. In the case of Manohar Lal Sharma v. Union of India, (2017) 11 SCC 731, it is held as follows;
"279. It has further been laid down in CBI v. V.C. Shukla, (1998) 3 SCC 410:1998 SCC (Cri) 761 as to the value of entries in the books of account, that such statement shall not alone be sufficient evidence to charge any person with liability, even if they are relevant and admissible, and that they are only corroborative evidence. It has been held that even then independent evidence is necessary as to trustworthiness of those entries which is a requirement to fasten the liability."
13.7. Despite the specific defence of the defendant that the invoices relied on by the plaintiff are fabricated and there are material concealments of facts, the plaintiff did not take steps to prove delivery of the material by leading specific evidence qua the delivery. Even the legal notice dated 15.11.2022, claimed to have been sent to the defendant before the institution of the suit, which is also claimed to have been delivered on 18.11.2022, has not been proved. This legal notice was not even relied upon by the plaintiff along with the plaint, and there is no mention of it in the list of documents filed by the plaintiff, although it is averred in the plaint.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 14 of 25 15 13.8. During cross-examination, PW1 admitted that the invoice dated 03.04.2021 Ext.PW1/4 (25) does not even pertain to the purchase order Ext.PW1/D1. PW1 claimed that this invoice pertains to another purchase order placed by the defendant upon the plaintiff. Admittedly, the said other purchase order is not even relied on in the present matter. In this invoice, there is no description of goods mentioned, and therefore, it is not even clear as to what goods, if at all, were supplied to the defendant under this invoice. This invoice is for a total sum of ₹ 20,23,533/-, i.e., more than the balance amount claimed in the present suit.
13.9. Even if, for a moment, it is assumed that the plaintiff supplied the articles under the remaining 24 invoices Ext.PW1/4 (1-24), yet the plaintiff's case has to fail because admittedly the plaintiff has received more amount than the total of those 24 invoices.
13.10. Counsel for the defendant argued that since the 25 th invoice Ext.PW1/4 (25) does not pertain to the purchase order in question, and neither the purchase order of this invoice nor the description of goods that were supplied under this invoice is proved, the sheer fact that this invoice is for ₹ 20.23 lakhs whereas the due amount is claimed to be ₹ 16.48 lakhs, the entire case of the plaintiff fails. 13.11. There is force in the contention of the defendant on this aspect. When the plaintiff did not even prove what was supplied under this invoice Ext.PW1/4(25) dated 03.04.2021, the entire case of the plaintiff fails. It is more so because this invoice does not even contain as to what was supplied. No proof of delivery is led. There is no acknowledgment of receipt of goods from the defendant.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 15 of 25 16 13.12. It is argued by the plaintiff, that the defendant relied on an e-mail dated 12.02.2021 Ext.PW1/D3 and annexures to this e-mail as relied upon by the defendant particularly table number 1 reveal that even as per the defendant a sum of ₹ 8,18,316/- remained unpaid to the plaintiff.
13.13. While arriving at this amount, the plaintiff has subtracted the figure mentioned in row no.6 from the figure mentioned in row no. 9. In row no.6, the amount of ₹ 2,38,96,139/- is mentioned as the total amount of the goods received. In row no.9, the amount already paid is mentioned to be ₹ 2,30,77,823/-. It leaves a balance of ₹ 8,18,316/-. 13.14. It is argued by the plaintiff that in this very table, the defendant has unilaterally arrived at an amount of ₹ 31,65,394/- as damages, and the defendant neither pleaded counter-claim nor pleaded set-off in the present matter, and accordingly, the defendant cannot claim that amount to be adjusted. It is argued that a relief that is not even prayed by the defendant towards liquidated damages as a counter-claim or set-off cannot be awarded in favour of the defendant, and in this regard, reliance is placed upon the case of Dilkhus Meena And Ors. Vs. Union of India & Ors. 2023:DHC:6457. It is also argued that even otherwise the defendant did not lead any evidence of having suffered liquidated damages and unless the defendant proves actual loss, the defendant cannot claim to be entitled to any such damages and in this regard, reliance is placed upon the case of Vivek Khanna Vs. OYO Apartments LLP 2023:DHC:6763.
13.15. On the other hand the defendant argues that the plaintiff cannot chose to read the e-mail in isolation or read the portion of e-mail segregated Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 16 of 25 17 from the entire document. It is argued that entire e-mails have to be read in toto and it is not permissible to place reliance upon some portion of the e-mail. In this regard the defendant places reliance upon the case of B K Muniraju Vs. State of Karnataka and Ors. (2008) 4 SCC 451. The said judgment is distinguishable on facts and in that case the question was whether the document relied upon was a Certificate of Grant or it was a sale transaction qua the land. It was held by Hon'ble Supreme Court that while undertaking construction of a document it is to be found out as to what was the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into, to the extent permissible, the prevailing circumstances which persuaded the author of the document to execute it. It was held that to ascertain the nature of transaction the document has to be read as a whole a sentence or term used in the document may not be determinative of the real nature of transaction. The said judgment does not help the case of defendant in any manner in this case. However the question is whether the contents of those e-mails help out the plaintiff.
13.16. It is indeed true that though the defendant in its written statement claimed to have suffered damages on account of delay by the plaintiff, neither the counter-claim was preferred nor the set-off was specifically pleaded in terms of Order 8 Rule 6 & 6A of CPC. There is no dispute qua the settled legal position that a relief that is not even prayed for cannot be granted, and also liquidated damages are required to be proved by definite evidence by the party claiming to have suffered it by leading cogent evidence of sufferance of loss. Since the defendant Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 17 of 25 18 neither proved suffering of loss nor pleaded grant of damages, the defendant cannot be held entitled to the same.
13.17. Still, the question in the present matter is whether, even in the absence of a grant or adjustment of loss to the defendant, the plaintiff is entitled to any amount.
13.18. In this regard, the plaintiff strenuously argues that Table 1 forming an annexure to the e-mail dated 12.02.2021 Ext.PW1/D3 sent by the defendant to the plaintiff indicates that the defendant admitted its liability for ₹ 8,18,316/-. The attention of the Court is also drawn towards another e-mail sent by the defendant to the plaintiff dated 23.02.2021 Ext.PW1/D4, in which it is mentioned that the defendant unilaterally linked the release of a balance amount of approximately ₹ 8 lakhs to the performance at the site and the defendant mentioned that in case the plaintiff deploys manpower and provides 20 slabs before monsoon of that year, the balance amount of ₹ 8 lakhs may be released to the plaintiff. It is argued that as per the purchase order Ext.PW1/D1, there was no agreement between the parties to provide an additional 45 men to be deployed as labour at the site of the defendant. It is also so admitted by DW1 in his cross-examination to the effect that the purchase order is silent about the deployment of any labour at the site. It is thus argued that the defendant had no justification to insist on the deployment of labour or adjustment of any amount and therefore, as per the defendant, approximately ₹ 8 lakhs was due in February 2021. It is also argued by the plaintiff that from table no.2 annexed to the e-mail dated 12.02.2021 Ext.PW1/D3 it is clear that the defendant admitted that the 50% mockup of B-3 was Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 18 of 25 19 completed on 12.12.2020 and the remaining 50% was completed on 11.01.2021, and since both those dates are after the date of 11.12.2020, which is claimed to be the last payment made by the defendant, therefore the defendant must be held liable to pay the suit amount to the plaintiff. It is also claimed that the invoices raised by the plaintiff after 11.12.2020 are concerning the balance work done by the plaintiff, and once those invoices are proved by the plaintiff, the defendant must be held accountable, particularly since DW1 admitted in cross-examination that there is no defect or deficiency in the material supplied to the plaintiff. In this regard, reliance is also placed by the plaintiff upon certain entries in the ledger maintained by the plaintiff.
13.19. As mentioned above, the entries in the ledger Ext.PW1/3 by itself cannot create liability of the defendant. When the defendant took a specific plea in the WS that it has no liability; the invoices are fabricated; the goods were not delivered and; payments have been made qua the material which was received, it was for the plaintiff to have led positive evidence to prove the delivery of material in appropriate quality and quantity. None of the invoices proved by the plaintiff contains any acknowledgment.
13.20. Even if, for the sake of argument, the e-mails dated 12.02.2021 and 23.02.2021 Ext.PW1/D3 & D4 are taken to be against the defendant, yet for the following reasons, the plaintiff cannot succeed. 13.21. As per those e-mails, at the most, the defendant admitted a balance of ₹ 8,18,316/- as of February 2021. A perusal of the ledger relied upon by the plaintiff Ext.PW1/3 reveals that after 04.01.2021, under invoice Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 19 of 25 20 Ext.PW1/4(23), the plaintiff adjusted a credit note worth ₹ 6,33,033.70/-. Thereafter, on 15.03.2021 (after the two above- mentioned e-mails), vide invoice Ext.PW1/4 (24), a sum of ₹ 1,77,133/- is shown as a debit towards goods supplied under that particular invoice. Thereafter, on 03.04.2021 (after the two above- mentioned e-mails), vide invoice Ext.PW1/4 (25), a sum of ₹20,23,534/-is shown as a debit towards goods supplied under that particular invoice. As mentioned above, the plaintiff did not prove the delivery of materials against those two invoices, and those two invoices were not admitted by the defendant. There is no admission by the defendant under the above-mentioned e-mails qua those two invoices Ext.PW1/4 (24 &25).
13.22. The ledger also reveals that on 30.07.2021, the plaintiff received an amount of ₹ 20,33,776/- and also the plaintiff gave credit of an amount of ₹ 67,782.29/- on 02.06.2021.
13.23. Thus, even if it is assumed that as of February 2021 a sum of ₹ 8,18,316/- was due from the defendant, admittedly the plaintiff received more than that amount as per the ledger. But the plaintiff at the same time failed to prove the supply of any further material to the defendant in or after February 2021.
13.24. The onus to prove the liability of the defendant was on the plaintiff, which the plaintiff has failed to discharge. In the absence of any delivery proof of the material, particularly after February 2021, and in the absence of any acknowledgment or counter-signature of the defendant on invoices Ext.PW1/4 (24 & 25), the plaintiff cannot be held entitled to any amount. It is particularly so when PW1 admitted Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 20 of 25 21 that the last invoice does not even pertain to the purchase order Ext.PW1/D1 and no other purchase order has been proved, and there is no mention of the description of the goods on the last invoice as to what was supplied.
13.25. The law is well-settled that the plaintiff has to stand on his own leg to claim a relief and to prove his case. In this regard, the defendant also placed reliance upon the case of State of M.P. V. Nomi Singh (2015) 14 SCC 450, wherein it was held that it is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case and for such a relief burden cannot be shifted on the defendant. In the case of Sunil Sood V. Sh. Krishna Builders 2018 SCC OnLine Del 11204, as relied upon by the defendant, it is held that the plaintiff cannot seek to prove his case in an indirect manner by urging that the defendant's case has a certain deficiency or that there has been non-compliance of a certain legal provision on the part of the defendant. It was held that the plaintiff cannot succeed based on failure on the part of a defendant to prove his case and that the plaintiff's case must stand on its own legs. It was held that a plaintiff must succeed on the basis and on the strength of his own case and not on the strength of deficiencies in the defendant's case and that the plaintiff cannot raise the edifice of his case by highlighting the deficiencies/ loopholes in the defendant's case.
13.26. Hon'ble DB of Delhi High Court in the case of Harish Mansukhani vs. Ashok Jain(19.11.2008-DELHC): MANU/DE/1742/2008 held as follows;
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 21 of 25 22 "14. ....... In this connection, it assumes importance that there is no evidence acknowledging receipt of the bills by the defendant as also that there is no evidence to establish that the goods covered by the bills were at all delivered to the defendant or any third party to whom the defendant allegedly directed delivery to be made. .............. The said transporter to whom freight must have been paid has not been examined. ............
15. Mere raising of a bill and reflecting the same in a statement of account is not good evidence without establishing delivery of the goods under the bills. .................
18. The totality of the evidence leans against the plaintiff, but what is most fatal is the variance between what was pleaded in the plaint and what was sought to be proved. No doubt, the defendant did not produce his statement of account but still, the plaintiff has to stand on his own legs to prove his case.
21. An adverse presumption can be drawn against a party who does not produce a document in his possession. Thus, before a presumption can be drawn against a party called upon to produce a document, it has to be proved that the document production whereof was sought was in the possession of the party concerned. The defendant had denied that any bill was raised on him. Thus, without proving that the plaintiff had raised the bills on the defendant, in that, without establishing that physical custody of the bills was with the defendant, no adverse inference could be drawn against the defendant.
22. No doubt, not responding to a legal notice is a piece of evidence wherefrom an adverse inference can be drawn against the noticee. But, the said adverse inference is no more than presumptive evidence which by its very nature is weak evidence. Where the totality of the evidence weighs in favour of the person issuing the notice, non response to a notice by the noticee can be put in the scales to reassure the Court that contemporaneously the noticee kept silent evidencing a kind of acquiescence. But, the quality of evidence led to prove the case positively and its probative value has always to be kept in mind and given primacy.
23. A plaintiff has to prove his case and stand on his own legs. No doubt, the defendant did not produce his books of account but that does not mean that the plaintiff must succeed on said account."
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 22 of 25 23 13.27. While upholding the said decision of DHC , SC in the case of Ashok Jain vs. Harish Mansukhani MANU/SCOR/27084/2019, held that when the facts were that the defendant did not deny business dealings with the plaintiff, but his only defence was that goods had not been supplied. It was held by Hon'ble SC that this fact had to be proved by the plaintiff.
13.28. In the present matter, the plaintiff seeks to rely upon the deficiencies in the defence instead of proving its case by providing positive and cogent evidence. Non-filing of the ledger by the defendant and based on the annexures to the e-mails, the plaintiff cannot be permitted to argue that the defendant admits any liability. Even otherwise, even if it is assumed that the plaintiff admitted its liability for ₹8 lakhs odd, as mentioned above, the plaintiff has received more than the amount after the so-called admission, and on the other hand, the plaintiff did not prove any supply of material to the defendant after the so-called admission.
13.29. It is also worth mentioning that the plaintiff in its plaint neither mentioned about the purchase order Ext.PW1/D1 nor mentioned about any other purchase order, and strangely, even after the said purchase order was specifically pleaded by the defendant, the plaintiff chose to evade giving an answer in Replication about that purchase order. Rather, in Replication, the evasive averment/ denial of the plaintiff is a circumstance that goes against the plaintiff. In its affidavit of admission/denial filed by the plaintiff qua the documents of the defendant, the plaintiff denied the purchase order as well as the 3 e- mails and the letter dated 17.05.2019, which were later on admitted by Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 23 of 25 24 the plaintiff during cross-examination of PW1. The said circumstance also has to go against the plaintiff as a plaintiff who materially conceals the existence of facts and documents in the original plaint and also chooses to deny the existence and correctness of those documents in its affidavit of admission/denial even after those documents are pointed out by the defendant, and despite the fact that in the statement of truth the plaintiff claimed that all documents pertaining to the facts and circumstances of the present case were not only disclosed but also copies thereof were annexed, must make the plaintiff dis-entitled to the relief.
13.30. Therefore, there is no hesitation in holding that not only did the defendant fail to prove the failure of the plaintiff to perform its obligations under the purchase order Ext.PW1/D1 or the defendant having suffered any loss, but also the plaintiff fails to prove its entitlement to recovery from the defendant.
13.31. Consequently, issue no.3 is decided in favour of the plaintiff and against the defendant, and issue no.5 is decided in favour of the defendant and against the plaintiff.
14. Issue no.6 "If the answer to the last issue is affirmative, whether the plaintiff is entitled to any interest. If yes, for which period and at what rate? OP Plaintiff"
14.1. Consequent to the decision of issue no.5, issue no. 6 has to be decided against the plaintiff to the effect that the plaintiff is not entitled to any interest.
14.2. It is so decided against the plaintiff and in favour of the defendant.
Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 24 of 25 25
15. Issue no.7 "Relief"
15.1. Consequent to the decision of issue no. 5 & 6, the suit is dismissed.
No order as to cost. The decree sheet be prepared accordingly. A copy of the judgment be supplied to the plaintiff as well as the defendant through electronic modes in compliance with Order 20 Rule 1(1) of CPC. The file be consigned to the record room.
Announced in the open Court on 4 th March 2025 DIG Digitally signed by DIG VINAY SINGH VINAY Date:
SINGH 2025.03.04 14:12:07 +0530 (DIG VINAY SINGH) District Judge (Commercial Court)-03 West / Tis Hazari / Delhi (m) Judgment dated 04.03.2025; CNR No. DLWT01-004681-2023; CS (COMM) No.425/2023; M/S Mayra Aluminium Forwork Pvt Ltd. Vs. M/S Suncity Projects Ltd. Page 25 of 25