Delhi District Court
Avinash Kumar Punjani --- vs Sanjeev Bansal on 27 September, 2023
1
In the Court of Dig Vinay Singh, District Judge (Commercial Court)-03,
West, Tis Hazari Courts, Delhi
CS (Comm.) 10/2020
CNR No. DLWT01-000066-2020
Avinash Kumar Punjani
Proprietor M/s Hanuman Plastic Industries
Having its office at S-10B,
Ajay Enclave, New Delhi-110018 .... Plaintiff
Vs.
Sanjeev Bansal
Prop. M/s Sagar Plastic Trading
TP-62, Maurya Enclave, Pitampura,
New Delhi - 110034 .... Defendant
Date of institution : 08.01.2020
Date of arguments : 13.09.2023
Date of judgment : 27.09.2023
JUDGMENT
1. This is a commercial suit for recovery of ₹ 15,61,857/- (Fifteen Lakh Sixty-
One Thousand Eight Hundred Fifty-Seven), with interest @ 36% per annum for the period 31.03.2017 till realisation. The dispute between the parties, is a 'commercial dispute' within the meaning of Sec. 2(1)(c) of the Commercial Courts' Act, 2015.
2. Brief facts of the case, as averred in the plaint, are that plaintiff is in the business of manufacturing of polythene/P.P/H.M/H.D.P.E tube and bags etc. under the name and style of M/s Hanuman Plastic Industries, of which the plaintiff is the proprietor. The defendant is proprietor of M/s Sagar Plastic Trading. There were business relations between the plaintiff and the defendant and the plaintiff made advance payments to the defendant for supply of 'plastic granules' by the defendant to the plaintiff. As on Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 1 of 16 2 31.03.2017 a total advance payment of ₹ 15,61,857/- (Fifteen Lakh Sixty- One Thousand Eight Hundred Fifty-Seven) had reached the defendant. The defendant even acknowledged that amount by signing a statement, as per the plaintiff. Plaintiff claims that the defendant neither supplied the material nor returned the amount, even after issuance of a legal notice dated 30.12.2017. As per plaintiff, the payments were made through his bank account in South Indian Bank, Tilak Nagar, New Delhi.
3. On the other hand, the defendant contested the suit claiming that though there were business relations between the parties which were running smoothly, but in the month of September 2016 the plaintiff approached the defendant for a cash help of ₹ 20,20,000/- (Twenty Lakh Twenty Thousand). In return the plaintiff agreed to give some 'entries in the bank of the defendant' for the equivalent amount. As such, the defendant paid that amount in cash to the plaintiff against getting entries of the same amount in the account. This cash is claimed to have been handed over to the plaintiff on various occasions by the defendant. Thereafter, defendant approached the plaintiff several times for return of the amount and to take back the 'bank entries', but the plaintiff kept on evading. It is also claimed that during demonetisation the plaintiff came with cash of the said amount, but the defendant did not accept that cash as it was in old and demonetized currency notes. Subsequently, the plaintiff even started demanding interest @ 30% per annum against the bank entries given to the defendant, which was opposed by the defendant. Yet it is claimed, that even though the defendant did not have any liability, but to settle the dispute with the plaintiff the defendant offered the plaintiff bank entries of the aforesaid amount and interest of 12%. But the plaintiff refused. In his WS the defendant claimed in para no. 'G' under the heading 'preliminary submissions', that the defendant is in possession of videographic evidence Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 2 of 16 3 which corroborates that the defendant does not have any liability and which shows that plaintiff had accepted the bank entries were against receipt of cash payment from the defendant and there was no other liability of the defendant and also that the plaintiff was demanding interest. Along with the WS, a CD containing that video with a certificate U/s 65B of the Evidence Act was also annexed. Qua the acknowledgement of the defendant dated 31.03.2017 on the statement of account, the defendant averred that the said acknowledgement was merely for tax purposes which was given on the request of the plaintiff and for no other purpose. Thus, the defendant does not dispute his signatures on this document and merely claims that it was given for taxation purposes. Defendant claims that no goods were to be delivered by the defendant to the plaintiff and no purchase orders were placed and the said amount of ₹ 20,20,000/- was given in cash only for the bank entries in return to be given by the plaintiff to the defendant. It would be worth mentioning here that in the written statement at some places the defendant claims that he first made cash payment to the plaintiff sometime in September 2016 against which the plaintiff was to offer bank entries to the defendant, such as in para no. A, G, para no. 3 of the WS, whereas in para no. 5 of the WS the defendant claims that the suit amount was returned by the defendant to the plaintiff in cash.
3.1. The defendant also filed an affidavit of admission/denial of the documents of the plaintiff on 04.03.2022, in which the defendant neither mentioned about the acknowledgment dated 31.03.2017 nor denied it. The defendant merely denied the contents of ledger account of the plaintiff. The defendant merely denied the legal notice by stating that legal notice was denied except what is matter of record. Similarly, the bank statement of the plaintiff was denied by the defendant stating that the bank statement is denied except for what is matter of record.
Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 3 of 16 44. In the replication, the plaintiff reiterated the averments of the plaint while denying the averments of the defendant.
5. From the pleadings of the parties following issues were framed :-
ISSUES "1. Whether the plaintiff is entitled to recovery of Rs. 15,61,857/- along with interest from the defendant as alleged? OPP
2. Whether the suit is not filed as per procedure applicable to Commercial Courts? OPD
3. Whether plaintiff has concealed material facts? OPD
4. Whether there is no cause of action? OPD
5. Relief."
6. In support of its case, plaintiff examined himself as PW1 by filing his affidavit in evidence Ext. PW1/A. The plaintiff relied upon acknowledgement signed by the defendant as Ext. PW1/1 dated 31.03.2017; audit report U/s 44AB of the Income Tax Act, 1961 as Ext.
PW1/2 and; legal notice its postal receipt and the tracking report Ext. PW1/3 to 1/5.
6.1. The statement of bank account Ext. PW1/7 relied by the plaintiff is an inadmissible document. It is a computer generated statement of account of the bank account of the plaintiff maintained in South Indian Bank. This statement is not bearing signature or stamp of the bank and there is no certificate U/s 2 of the Bankers' Book Evidence Act or certificate U/s 65B of the Evidence Act. Therefore, this document shall have to be kept out of consideration.
7. On the other hand, the defendant examined himself as DW1, relying upon CD Ext. DW1/1 with its certificate U/s 65B of the Evidence Act Ext. DW1/2; pen drive Ext. DW1/3 and transcript Ext. DW1/4.
Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 4 of 16 57.1. Defendant also examined DW2 Daya Kishan Goyal in his favour, who did not rely on any document.
8. I have heard Ld. Counsel for the plaintiff and have perused written submissions filed by the defendant. Issue wise findings are as follows.
9. Issue no. 2 "2. Whether the suit is not filed as per procedure applicable to Commercial Courts? OPD"
9.1. Onus to prove this issue was on the defendant. Neither during evidence nor during argument any point was raised as to why the plaint does not comply with the rules / procedure applicable to Commercial Suits. The plaint is signed by the plaintiff on every page. Statement of truth was also filed along with the plaint. Though, in the earlier plaint instituted by the plaintiff on 08.01.2020, statement of truth and signature on every page was not there, but the same were got complied with by the Court subsequently and there is a plaint on record dated 16.03.2021, duly complying with the rules. They being procedural requirements, there subsequent compliance in making good the deficiencies, cannot result in throwing out the suit. 9.2. This issue is accordingly decided against the defendant and in favour of the plaintiff.
10. Issue no. 3 & 4
"3. Whether plaintiff has concealed material facts? OPD
4. Whether there is no cause of action? OPD"
10.1. Onus to prove these two issues were also on the defendant. The case of the defendant is that he had paid cash to the plaintiff and there is no amount due and also that the plaintiff concealed material facts. As against it the case of plaintiff is that the defendant neither supplied goods against the advance Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 5 of 16 6 money received, nor returned the money. Which material fact was concealed was never brought forth by the defendant. In a civil suit, it is the plaint which has to be seen in order to be satisfied whether it discloses cause of action or not. The plaint does disclose sufficient cause of action as it is the case of the plaintiff that the defendant neither returned the advance payment made to the defendant nor supplied any material. 10.2. Both these issues are decided against the defendant and in favour of the plaintiff.
11. Issue no. 1 "1. Whether the plaintiff is entitled to recovery of Rs. 15,61,857/- along with interest from the defendant as alleged? OPP"
11.1. The plaintiff in his evidence has proved statement of account Ext. PW1/1, which bears signature of the defendant with the date of 31.03.2017 and also it bears the stamp of the proprietorship concern of the defendant. The defendant never disputed signature on Ext. PW1/1. Rather in the cross- examination DW1 specifically admitted that this document bears his signature at Points X & Y. Even in the affidavit of admission/denial of the documents filed by the defendant, the defendant vaguely denied this document by merely mentioning that the contents of this document were denied. He did not mention anything about his signature on this document in the affidavit of admission/denial.
11.2. The defence of the defendant qua this document was that this document was signed by the defendant for tax purposes and it was not to be otherwise acted upon. This defence of the defendant is apparently false for the reason that he has not clarified at any stage of the matter as to for what particular tax purpose he signed this document when he had no liability. Whether it was for the taxation purposes of the plaintiff or whether it was for the Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 6 of 16 7 taxation purposes of defendant. Even it is not clarified as to how signing of a statement of account of the opposite side can be of any benefit to any income tax/sales tax assessee. No argument on this point was raised by the defendant.
11.3. This document reveals that between 20.09.2016 till 20.10.2016 various amounts were sent to the bank account of the defendant by the plaintiff through his bankers namely South Indian Bank and Union Bank of India. Between those dates, a total of ₹ 38,90,000/- (Thirty-Eight Lakh Ninety Thousand) were sent to the defendant by the plaintiff. Prior to it, on different dates some other amounts were sent to the defendant, and also the plaintiff has credited the amount equivalent to the price of the goods received from the defendant by the plaintiff.
11.4. Though the defence of the defendant was also that there were no transaction of sale/purchase of goods between the parties, but in his cross-examination as DW1, defendant admitted that he was having transaction with the plaintiff since 2015-16. Defendant also admitted that on the first occasion, he received the advance payment and thereafter supplied the material to the plaintiff. The defendant even admitted that even thereafter he had supplied material to the plaintiff on some occasions, though he claimed that he supplied the material on credit basis. This admission in his cross-examination by the defendant belies the stand of the defendant that there were no business transactions between the parties.
11.5. In his cross-examination, DW1 even admitted that in the month of September-October, 2016, plaintiff made certain payments in his bank accounts. These payments are so reflected in Ext. PW1/1 amounting to total ₹ 38,90,000/-. As against it, the defendant claims that he had made cash payment to the plaintiff and thereafter the plaintiff made those bank Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 7 of 16 8 transfers in the bank account of the defendant. As per defendant, he had paid cash worth total ₹ 20,20,000/- to the plaintiff on different occasions in the month of September, 2016. This defence of the defendant is belied from the facts that not even one cogent proof in the nature of documentary proof or any other corroborative oral evidence has been led by the defendant to prove that he ever paid that cash amount to the plaintiff. No bank transactions have been proved by the defendant to show that he withdrew any money at the relevant time to pay cash to the plaintiff. Even if it is assumed that what the defendant is saying is true, the defendant fails to explain as to why he received payments in his bank account from the plaintiff on 07.04.2016, 16.04.2016 & 21.04.2016, i.e. much prior to September 2016, if he was to get the bank entries against payments made worth ₹ 20,20,000/- only. In Ext. PW1/1, those three payments received in his bank account from the plaintiff on 07.04.2016, 16.04.2016 & 21.04.2016 are worth total ₹ 24 Lakhs. If there were no dealings between the parties as claimed by the defendant, why would the defendant receive those three payments in April 2016, whereas he claims that he paid cash to the plaintiff prior to the plaintiff transferring amount in the account of the defendant in September 2016.
11.6. Also Ext. PW1/1 reveals that a total sum of ₹ 38,90,000/- were received by the defendant from the plaintiff through bank transaction in the month of September and October 2016. If the defendant had paid cash only worth ₹ 20,20,000/-, why would the plaintiff transfer whooping sum of ₹ 38,90,000/-.
11.7. In any case, if the defendant had no such liability, he would not have signed Ext.PW1/1. Admittedly the defendant did not file any proof relating to cash payment.
Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 8 of 16 911.8. The document Ext. PW1/1 is though a statement of account which is processed and generated by computer, and it would have been inadmissible in evidence in absence of certificate U/s 65B of the Evidence Act, but in this case the said document bears signature of the defendant on both the pages in original and this document is admitted in evidence as an acknowledgment by the defendant.
11.9. The defendant even admits in his cross-examination that he received legal notice Ext. PW1/3 sent by the plaintiff at his residential address in Pitam Pura. The delivery of notice is also proved from the tracking report Ext. PW1/5, relied by the plaintiff. The defendant even admitted that he never replied to the legal notice in writing. Though, the defendant claimed that he did not reply as he had spoken to the plaintiff about the issue, but the same appears to be nothing but an afterthought. After receiving of legal notice Ext. PW1/3 wherein the plaintiff demanded the suit amount clearly stating that it was due as the defendant failed to supply the goods or return the money, the defendant would have replied to the notice had he been not under any liability. Even this fact proves that the defendant is lying and he has the liability.
11.10. In the case of Metropolis Travels & Resorts (I) (P) Ltd. v. Sumit Kalra, 2002 SCC OnLine Del 521: (2002) 98 DLT 573 (DB), Hon'ble Division Bench of Delhi High Court observed as follows;
"13. There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply to the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent. This Court in the case of Kalu Ram v. Sita Ram, 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventually adverse inference should be drawn because he kept quiet over the notice and did not send any reply. Observations of Kalu Ram's case (Supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 9 of 16 10 amount on the basis of the invoices/bills in question. But the learned Trial Court failed to draw inference against the respondent."
11.11. Similarly, in the case of Krishan Kumar Aggarwal v. LIC, 2014 SCC OnLine Del 4419 Delhi High Court observed as follows;
"65) No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice sent by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted.
In the judicial precedents reported in Rakesh Kumar v. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 & Hiralal Kapur v. Prabhu Chaudhary (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant."
11.12. A lot of stress was laid by the defendant on the point that in audio/video recording contained in Ext. DW1/1 (CD) & Ext. DW1/3 (pen drive), the plaintiff had admitted that there was no liability of the defendant. In this regard, the defendant also examined DW2 Daya Kishan Goyal who deposed that on 24.01.2018 he along with the defendant (DW1) went to the office of the plaintiff and the conversation which took place on that day was recorded by him on a spy camera provided by the defendant and during conversation plaintiff admitted that he had received cash amount in lieu of payment made to the defendant and that the dispute arose only because of higher interest demanded by the plaintiff.
11.13. The testimony of DW2 is not credit worthy for the reason that DW2 in his cross-examination admitted that even he had business relations with the plaintiff which went sour and there was a legal notice issued by the plaintiff against DW2 seeking recovery from DW2. Though DW2 expressed ignorance whether another suit no. 12/20 was also filed by the plaintiff against DW2 which is pending in another Commercial Court and whether his counsel appeared in that case or not, but the very fact that DW2 admitted existence of a dispute with the plaintiff separately, makes his testimony Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 10 of 16 11 suspicious. Even otherwise, DW2 did not specify as to what was the recording device in which he recorded the conversation. All that he said is that it was recorded on a spy camera provided by the defendant. Neither the device is identified nor the recording was proved or played in the testimony of DW2 and DW2 merely stated that he had seen the recorded footage which is that of the conversation. The testimony of DW2 therefore does not help the case of defendant at all.
11.14. So far as the CD and the pen drive relied by DW1, purportedly containing copy of the audio/video recording of the conversation between the parties is concerned, they are not proved in accordance with law. Being electronic evidence the proving of certificate U/s 65B of the Evidence Act in support of the CD and the pen drive was necessary. Admittedly, the original video recording was not proved in this case. At the stage of final arguments, the defendant filed an application Under Order 11 Rule 1(10) of CPC for placing on record the original recording device stating to be containing the original video in its in-built memory. That application was dismissed separately with detailed reasons. Thus, original recording of this case is not proved. So far as copies contained in CD and pen drive are concerned, when the video recording was played during the evidence of PW1, the plaintiff denied the contents of the video claiming the same to be morphed and containing additions and deletion in the contents of the video including tampering with the voice. Though at one place the plaintiff admitted that he is visible in the video with the defendant and some portion of the video is that of the office of the plaintiff, but nothing therein can be read in favour of the defendant. Instead in the cross-examination the defendant as DW1 stated that he had copied the video from the original device on to his laptop and then he gave the laptop to his counsel and it was the counsel for the defendant who prepared the CD and the pen drive which were filed in the Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 11 of 16 12 Court. Whereas the certificate U/s 65B of the Evidence Act Ext. DW1/2 is signed by the defendant and there is no separate certificate of the counsel qua copying of the video. Even the name of the counsel who copied it is not mentioned.
11.15. Perusal of Ext. DW1/2, the certificate U/s 65B of the Evidence Act, reveals that it is lacking in material particulars. All that the certificate states is as follows;
"I, Sh. Sanjeev Bansal, Proprietor of M/s Sagar Plastic Trading, having its registered office at A-9, Gurunanak Associates, Main Bawana Road, Samai Pur, Delhi, certify that the CD of the talks between the plaintiff and the defendant on 24/01/2018 has been prepared by me on my laptop. I had lawful authority over the said laptop at the relevant time and they were functioning properly while they were in my possession. The said laptop was not tampered at any point of time. SD Sh. Sanjeev Bansal M/s Sagar Plastic Trading.... Dated 28/02/2022".
11.16. Thus, Ext. DW1/2 lacks basic requirements of Sub-Section 2 & 4 of Sec.
65B of the Evidence Act. It also contradicts the testimony of DW1 who stated in the certificate that he himself prepared the CD on a laptop, whereas in his cross-examination he stated that the CD and pen drive were prepared by the counsel after he had copied the video on the laptop from the original recording device and after he had handed over the said laptop to his lawyer. No certificate U/s 65B of the Evidence Act of the lawyer is proved on record.
11.17. In view of the case of Anwar P. V. Vs. P. K. Basheer (2014) 10 SCC 473 and well settled law, the CD and the pen drive being electronic evidence are not proved in accordance with law.
11.18. Qua the videography, the argument of the defendant that when DW1 in his cross-examination stated that he can produce the original video footage, yet the plaintiff did not ask the defendant to bring the original, and once the plaintiff in his cross-examination admitted that he was seen in the video and Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 12 of 16 13 the video also pertained to his office, the onus shifted on the plaintiff to prove that the contents were morphed. This argument is fallacious. There can be no question of the plaintiff proving that the video was morphed, unless the video itself is proved by the defendant in accordance with law. As mentioned above, the defendant failed to prove the original video and the copy of the electronic evidence in the CD and pen-drive are not proved in accordance with law and therefore until the video was initially proved by the defendant, no onus can shift on the plaintiff.
11.19. The fact that the defendant in his written statement as well as in evidence claimed that even though the defendant did not have any liability towards the plaintiff but only to settle the dispute the defendant agreed to offer the plaintiff bank entry of the aforesaid amount and interest @ 12%, also goes against the defendant. Had there been no liability of the defendant as claimed, there was no occasion for the defendant to have agreed to pay the amount through the bank to the plaintiff.
11.20. In the written submissions filed by the defendant, the defendant claimed that the plaintiff failed to prove any purchase order or bank statement and the copy of ledger account filed is without any affidavit U/s 65B of the Evidence Act, therefore the suit of the plaintiff be dismissed. Even if no purchase order is proved by the plaintiff, the admission by DW1 that there were business relations between the parties in which defendant even admitted to have supplied the goods, coupled with the acknowledgment of debt Ext. PW1/1, and proof of the money transferred in the account of the defendant, no force is left in the argument of the defendant. Once the defendant signed Ext. PW1/1 in original acknowledging the balance due, there was no requirement of Sec. 65B of the Evidence Act qua this document. So far as the bank statement of the plaintiff is concerned Ext. PW1/7, indeed it is not supported with the certificate U/s 65B of the Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 13 of 16 14 Evidence Act and Sec. 2 of the Bankers' Book of Evidence Act. Sans Ext. PW1/7 the other document Ext. PW1/1 and the admission of the defendant proves the case of plaintiff satisfactorily.
11.21. In cross-examination the plaintiff claimed that its factory is situated in Bawana, whereas its registered office is at Ajay Enclave within the jurisdiction of this Court and the defendant used to make supply of goods at Bawana. He also claimed that the purchase orders used to be placed telephonically and plaintiff did not file any purchase order on record nor any voucher as mentioned in Ext. PW1/1 is filed on record. Even these answers of the plaintiff that no purchase order or voucher is filed on the record, does not help the case of the defendant, since the defendant admitted that there were business transactions between the parties and the defendant also admitted his signature on Ex.PW1/1.
11.22. Even if for the sake of arguments, the claim of the defendant is believed that there were no goods supplied or to be supplied and the transaction was only for the purposes of certain bank entries, yet the defendant cannot escape his liability as it is proved that plaintiff transferred the amount from his account in the bank to the bank account of the defendant. As against it, the defendant fails to prove that he made any cash payment to the plaintiff against those amount at any point of time.
11.23. Merely because the plaintiff admitted in his cross-examination that he met the defendant along with DW2 at his factory in Bawana does not prove anything in favour of the defendant.
11.24. The suit of the plaintiff is within limitation as it has been filed in January 2020 and it is within three years from the date of acknowledgement by the defendant on 31.03.2017.
11.25. Argument of the defendant that when the plaintiff admitted that there was no shortage of raw material throughout the year relevant for the present case Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 14 of 16 15 and advance payment used to be made in the business only when the raw material was in shortage, points out that there was no occasion for advance payment, is fallacious. It is also argued that there was a custom in the business between the parties that material used to be supplied first and then the payments used to be made. Even this argument has to be rejected. Once the defendant acknowledged his liability under Ext. PW1/1 it loses significance whether payment was made by the plaintiff in advance because of shortage of material or otherwise or whether there was any custom to supply the material before making of payments.
11.26. The argument of defendant that there were many cases pending in which the plaintiff has falsely sued other persons or implicated other persons and many such cases have been decided, is of no importance to the present Court.
12. The sum & substance of the above discussion is that the plaintiff succeeds in proving issue no. 1 in his favour to the effect that the plaintiff is entitled to recovery of the suit amount from the defendant.
13. The question however is at to at what rate of interest the plaintiff is entitled to on the suit amount. Plaintiff has claimed interest @ 36% per annum from the date of acknowledgment i.e. 31.03.2017 till realisation. There is no written agreement proved between the parties as to the said rate of interest. The said rate of interest is highly excessive and exorbitant. 13.1. In the case of Cimmco Limited Versus Pramod Krishna Agrawal 2019 SCC OnLine Del 7289, it is held as follows;
"3..........Hon'ble Supreme Court has now mandated that lower rates of interest be granted and therefore the pre-suit and also the pendente lite and future interest is liable to be reduced by this Court. Reliance is placed upon the judgments in the cases of Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority, (2005) 6 SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, Rajasthan State Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. v. G. Harischandra, (2007) 2 SCC 720 & Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 15 of 16 16 State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC)."
13.2. In the given facts & circumstances, interest of justice would be met if the plaintiff is awarded simple interest @ 9% from 01.04.2018 till the date of realisation. The plaintiff however shall have to pay Court Fee on the interest component for the period 01.04.2017 to 08.01.2020 (date of filing of suit).
14. Relief 14.1. The suit of the plaintiff is accordingly decreed for a sum of ₹ 15,61,857/-
(Fifteen Lakh Sixty-One Thousand Eight Hundred Fifty-Seven) with simple interest @ 9% per annum from 01.04.2017 till the date of realisation. The plaintiff shall also be entitled to cost of the suit. 14.2. Decree sheet be prepared accordingly. Copy of this judgment be also sent to both the sides through electronic modes in terms of Order XX Rule 1(1) CPC. File be consigned to the record room.
Announced in the open Court on 27th day of September, 2023.
DIG Digitally signed by DIG VINAY SINGH VINAY Date:
SINGH 2023.09.27 14:32:20 +0530 (Dig Vinay Singh) District Judge (Commercial Court)-03, West, Tis Hazari Courts, Delhi (r) Judgment in CS (Comm.) 10/2020; CNR No. DLWT01-000066-2020; Avinash Kumar Punjani Vs. Sanjeev Bansal; dated 27.09.2023; Page 16 of 16