Delhi District Court
Cubex Industries vs Shyam Narain Ram Kuber Shukla on 15 July, 2024
DLCT010174312022
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL :
DISTRICT JUDGE (COMMERCIAL) -01 : CENTRAL, TIS
HAZARI COURTS, DELHI
CS (Comm.) No. 2727/22
M/S CUBEX INDUSTRIES
SITUATED AT 1/18, GALI BEDIYAN,
NEAR FIRESTONE BUILDING,
KASHMERE GATE - 110006
THROUGH MR. YOGESH MITRA [PARTNER]
....... PLAINTIFF
VERSUS
SHYAM NARAIN RAM KUBER SHUKLA
AT : B/862, ARBUDA NAGAR, ODHAV ROAD,
AHMADABAD, GUJARAT-382115
PROPRIETOR : M/S KRISHA ENTERPRISES
.... DEFENDANT
CS (COMM) NO. 2727/22,
Cubex Industries Vs. Shyam Narain Ram Kuber Shukla
Page No. 1 of 41
Date of institution : 21.12.2022
Date of reserving Judgment : 27.04.2024
Date of decision : 15.07.2024
SUIT FOR RECOVERY OF Rs. 3,95,821/-.
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs. 3,95,821/- filed by the plaintiff against the defendant.
2. Brief facts as stated by the plaintiff are that plaintiff is a partnership firm incorporated in the year of 2001 and is engaged in the business of manufacturing, sale and purchase of motor parts and accessories. Defendant approached the plaintiff for purchasing several goods vide invoices on credit basis from the plaintiff firm between the period 04.09.2017 to 10.09.2018 amounting to Rs. 2,47,621/-, which is due upon the defendant after adjustments, through invoices, details of which are as follows :-
Sr. No. Invoice No. Dated Amount in Rs. 1 0066 04.09.2017 15,004/- 2 0077 07.09.2017 23,446/- 3 0084 12.09.2017 17,498/- 4 0133 07.10.2017 6,413/- 5 0157 17.10.2017 14,666/- 6 0174 02.11.2017 10,634/- CS (COMM) NO. 2727/22,
Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 2 of 41 7 0212 22.11.2017 17,649/-
8 0231 02.12.2017 13,096/-
9 0285 06.01.2018 15,066/-
10 0319 27.01.2018 18,747/-
11 0381 05.03.2018 39,315/-
12 CX/010/18-19 04.04.2018 19,364/-
13 CX/0112/18-19 02.06.2018 58,802/-
14 CX/0123/18-19 11.06.2018 16,803/-
15 CX/156/18-19 25.06.2018 17,977/-
16 CX/0215/18-19 01.08.2018 26,360/-
17 CX/0254/18-19 27.08.2018 10,010/-
18 CX/0273/18-19 10.09.2018 13,057/-
3. It has been further stated that as per the books of accounts maintained by the plaintiff qua the defendant, a sum of Rs. 2,47,621/- is due as principal amount and despite repeated requests, defendant did not pay the same, hence, plaintiff has filed the present suit seeking recovery of Rs. 4,18,479/- [ Rs. 2,47,621/- as principal amount + Rs. 1,70,858 as interest @18% p.a. from 04.01.2019 till November 2022].
4. The defendant contested the suit. In its written statement (hereinafter called as (WS) defendant has taken preliminary objections that :
(i) the plaintiff firm is not duly registered under the Indian Partnership Act, 1932, therefore, the present suit is barred under Section 69(2) of The Indian Partnership Act, 1932.
CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 3 of 41
(ii) present suit is barred by limitation as admittedly last invoice is dated 10.09.2018 and the present suit is filed on 20.12.2022.
5. On merits, defendant has denied the contents of the plaint as incorrect. It has been further stated that defendant was small retailers carrying out business as a proprietary firm of selling motors parts at Ahmedabad, Gujarat in association with M/s Parsva Motors and worked up to 19.05.2018 with Sh. Sachin Mahesh Bhai Shah, proprietor of M/s Parsva Motors but due to some difference arose in December, 2016 between the defendant and M/s Parsva Motors, the defendant became separated and shifted to other place after settlement of account and after mutual settlement between them that all the assets and liabilities, if any, were taken by M/s Parsva Motors.
6. It has been further stated by defendant that after December, 2016 the defendant never ordered and received the goods from the plaintiff as he orally informed the plaintiff not to supply the goods in the name of defendant due to difference and dispute between M/s Parsva Motors in Dec, 2016.
7. It has been further stated that during the business dealing before March, 2017 the defendant had issued few cheque for security purpose which were fraudulently encashed by the plaintiff without information / intimation to defendant and when defendant came to know about the same he lodged protest before the plaintiff over telephone and the defendant was continuously followed up M/s Parshva Motors for such fraud but every time the CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 4 of 41 Parshva Motors assured that same shall be adjusted in future transaction but same were not adjusted. Thus, the defendant has prayed that no amount is due against the defendant and the suit of plaintiff is liable to be dismissed.
8. The plaintiff has filed replication to the said WS in which the plaintiff denied the contents of WS. It is denied that the defendant was carrying out business in association with one M/s Parsva Motors and worked up to 19.05.2018 with Sh. Sachin Mahesh Bhai Shah, proprietor of M/s Parsva Motors and got separated due to difference and dispute with M/s Parsva Motors. It is also denied that defendant orally informed the defendant in December, 2016 not to supply the goods in the name of defendant due to dispute with M/s Parsva Motors. It is further denied by the plaintiff that during the business dealing before March, 2017 the defendant had issued few cheques for security purpose only which were fraudulently encashed by the plaintiff without information / intimation or that defendant lodged before the plaintiff over telephone in this regard. It is stated that defendant has even made a payment through NEFT on 14.05.2018. Further, defendant himself deposited the said cheques in the bank of plaintiff in the branch near to the office of defendant with the purpose of making payment to the plaintiff which were duly encashed. Thus, the plaintiff has prayed for passing of decree of the suit amount in his favour.
9. After completion of the pleadings, the following issues CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 5 of 41 were framed vide order dated 06.12.2023 :-
1. Whether the present suit is barred as per Section 69(2) of The Indian Partnership Act, 1932 ? OPD
2. Whether the present suit is barred by limitation ? Onus upon both parties.
3. Whether the present suit has not been filed by the duly authorized person of the plaintiff company ? Onus upon both parties.
4. Whether this Court has no pecuniary jurisdiction to entertain the present suit ? Onus upon both parties.
5. Whether an amount of Rs. 2,47,621/- is due against the defendant for supply of the goods by the plaintiff ? OPP
6. Whether the plaintiff is entitled to interest on the aforesaid amount, if so at what rate and for which period ? OPP
7. Whether the plaintiff is entitled to pendentelite and future interest, if so, at what rate ? OPP
8. Relief.
10. In order to prove its case, the plaintiff has examined two witnesses i.e. Sh. Yogesh Mitra, one of its partner as PW1 and Sh. Naveen, Clerk, Registrar of Firms & Societies, Haryana as PW2.
11. On the other hand, in order to deny the claim of plaintiff, defendant has only examined himself as DW1, who led his evidence by way of affidavit Ex. DW1/A. CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 6 of 41
12. Arguments have been heard from Ms. Aditi Aggarwal, Ld. Counsel for plaintiff and Sh. Umang Gangwar, Ld. Counsel for defendant.
13. I have considered the arguments and have gone through the record.
14. My issue wise findings are as under :-
Issue No. 1 : Whether the present suit is barred as per Section 69(2) of The Indian Partnership Act, 1932 ? OPD
15. Undoubtedly, as per Section 69(2) of The Indian Partnership Act, 1932 the partnership firm cannot file the suit unless the partnership firm is registered. Section 69(2) of the Act is reproduced as below :-
2. No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
16. This proposition of law has even not been disputed by Ld. Counsel for plaintiff. However Ld. Counsel for plaintiff argued that plaintiff that through the testimonies of PW1 & PW2, it is proved that plaintiff is duly registered and firstly registered on 08.08.2006 and after when the plaintiff could not trace the documents of year 2006-07, he again registered the firm with Registrar of Firms and Societies, Haryana vide no. 06-008-2022- CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 7 of 41 00077 on 15.09.2022. Thus, the plaintiff is duly registered and suit is within the limitation.
17. On the other hand, Ld. Counsel for defendant has argued that there was no reason to the plaintiff for subsequent registration in year 2022 it shows that when the alleged goods were supplied, the plaintiff firm was not registered, therefore, the present suit is barred by Section 69(2) of The Indian Partnership Act, 1932.
18. Plaintiff has categorically stated in the plaint that plaintiff is duly registered partnership firm and same fact has been reiterated in evidence led by way of affidavit Ex. PW1/1. In order to support the oral evidence PW1 has also filed copy of registration certificate Mark-A and photocopy of partnership deed as Ex. PW1/A1.
19. Further, in order to prove the said registration certificate mark A, the plaintiff has also examined Sh. Naveen (Clerk), Registrar of Firms and Societies, Sonepat, Haryana, as PW2 who has produced summoned record i.e. Farm C & form A/ registration certificate of plaintiff's firm of year 2006-07, which was earlier marked as Mark-A, registered as PW2/1 in his testimony, which clearly shows that plaintiff's firm was registered on 08.08.2006 with Registrar of Firms and Societies, Haryana and further, it shows that Sh. Sandeep Mitra and Sh. Yogesh Mitra are the partners in the said firm. PW2 also produced the partnership deed which was given to the said Registrar office at the time of registration of firm. He has also proved the form A CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 8 of 41 regarding plaintiff firm registration on 15.09.2022 again and said form A also mentioned Yogesh Mitra and Sanjay Mitra as partner.
20. In cross-examination of PW2, he categorically deposed that the authority letter Ex. PW2/3 authorizing him was issued by Ms. Sanjit Kaur, who is presently working as Registrar of Firms & Societies, Sonepat, Haryana. He further deposed that he does not know why the plaintiff has made registration twice i.e. first on 08.08.2006 & secondly on 15.09.2022. No suggestion has been given to PW2 by defendant that the registration certificate is forged and fabricated document.
21. From the registration certificate EXPW 2/1 proved by PW2 an official of Registrar of firm which is statutory authority to register a partnership firm it is proved that plaintiff partnership firm was firstly registered on 08.08.2006. From the document Ex. PW2/2 it is also proved that plaintiff has again registered the firm with Registrar of Firms and Societies, Haryana vide no. 06-008- 2022-00077 on 15.09.2022, which shows that Sh. Sandeep Mitra and Sh. Yogesh Mitra are the partners. As far as contention of Ld. Counsel for the defendant that since plaintiff has registered its firm twice therefore the first registration cannot be consider and since second registration was done in 2022 on only therefore same was done after alleged transaction between the plaintiff and defendant and thus same does not entitle plaintiff to file the present suit.
22. In my view PW1 has fully explained in his cross CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 9 of 41 examination why registration was plaintiff firm was done twice as he deposed that the plaintiff firm was registered in year 2006-07 and thereafter, they again registered the same on 15.09.2022 as documents regarding registration of partnership firm of year 2006- 07 were not traceable. In my view plaintiff registering the firm second time does not invalid plaintiff firm registration done in year 2006. Therefore, judgment relied upon by defendant DDA Vs. Kochhar Construction Work & Ors., MANU/SC/1279/1998 does not apply to the facts of the present case.
23. In view of the testimonies of PW1 & PW2 and documents PW2/1, I held that plaintiff has been able to prove its case that plaintiff's firm is registered firm and PW1 Sh. Yogesh Mitra is one of its partner, and can sue a party in its name, therefore, the present suit is not barred as per Section 69(2) of The Indian Partnership Act, 1932. Issue no. 1 is decided in favour of plaintiff and against the defendant.
Issue No. 2 : Whether the present suit is barred by limitation ? Onus upon both parties.
24. The plaintiff has filed the suit for recovery of money for goods supplied. The period of limitation is three years as per entry 14 of schedule given in Limitation Act 1963, which is to be counted from the date of delivery of the goods when no fixed period of credit is provided. In this case, the PW1 has deposed that plaintiff firm has sold the goods through invoices Ex. PW1/B1 to Ex. PW1/B18. From the said invoices, it is prima facie CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 10 of 41 evident that there is no fixed period is specified when the amount is to be paid of goods supplied, though PW1 in his testimony led by way of affidavit Ex. PW1/1 has deposed that defendant approached the plaintiff for supplying of the goods on credit basis. Hence, in my view, the period of limitation of three year will commence from the date of each invoices as there is no mutual current running account between the parties unless there is acknowledgment of debt or part payment which would further extend period of limitation as provided by section 18 & 19 of Limitation Act respectively.
25. From perusal of invoices Ex. PW1/B1 to Ex. PW1/B18 it is evident that first invoice is of 04.09.2017 and the last invoice is dated 10.09.2018. Though as per ledger file by the plaintiff mark B it transpire that last payment of Rs. 14666/- was made by defendant on 06.09.2018 but said ledger has not been proved by plaintiff as per Indian Evidence Act as no certificate u/s 65B was furnished. However plaintiff has deposed that defendant has given part payment of 15,004/- by way of cheque bearing no. 000501 dated 22.02.2018 Ex. PW1/D. The defendant has not denied the said payment through the said cheque. Hence, the period of limitation is further extended for three years from the date of payment of aforesaid cheque in view of Section 19 of The Limitation Act, which is reproduced as below :-
19.Effect of payment on account of debt or of interest on legacy.--
CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 11 of 41 Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Explanation.--For the purposes of this section,--
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;(b) "debt"does not include money payable under a decree or order of a court.
26. In view of above discussion I hold that the period of limitation would expire on 21.02.2021 in ordinary circumstances, but Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 3/2020, it is held that in view of the Covid-19 pandemic, the period of the cases where limitation has expired, the period between 15.03.2020 till 28.02.2022 will be excluded while calculating period of limitation and further a party will have 90 days from 01.03.2022, if limitation period is already expired and if limitation is not expired then party would be entitled to entire balance period after excluding aforesaid period from 15.03.2020 till 28.02.2022. The relevant para of the judgment is reproduced CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 12 of 41 below :
"III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings"
27. As stated above defendant made part payment through cheque EXPW1/D on 22.02.2018 thererfore, on 15.03.2020 the plaintiff has left 11 months 6 days. Thus, said period 11 months 6 days will be available to the plaintiff on 28.02.2022 in view of above said Supreme Court judgment, and if I add said period of 11 months 6 day, the limitation period will expire on 03.02.2023. The plaintiff has file the present suit 21.12.2022. Hence, the present suit is filed with in three year after excluding the aforesaid CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 13 of 41 period thus same is with in limitation. In these circumstances, I do not find force in the contention of Ld. Counsel for defendant that suit is time barred. Issue No. 2 is decided against the defendant .
Issue No. 3 : Whether the present suit has not been filed by the duly authorized person of the plaintiff company ? Onus upon both parties.
28. Plaintiff has stated that the plaint has been filed by Sh. Yogesh Mitra, one of its partners who has been duly authorized by other partners. Defendant in WS has stated that the present suit has not been filed by duly authorized person of plaintiff firm as no proper authority is annexed. As held in issue no. 1, Sh. Yogesh Mitra is one of the partners of plaintiff firm, therefore, in my view, being partner of plaintiff firm he is authorized to file the present suit without any authorization of any other partners in view of Section 19 of The Indian Partnership Act, 1932 which clearly provided that a partner can do all the acts except the following acts :-
(a) submit a dispute relating to the business of the firm to arbitration,
(b) open a banking account on behalf of the firm in his own name, (c) compromise or relinquish any claim or portion of a claim by the firm,
(d) withdraw a suit or proceeding filed on behalf of the firm, CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 14 of 41
(e) admit any liability in a suit or proceeding against the firm,
(f) acquire immovable property on behalf of the firm,
(g) transfer immovable property belonging to the firm, or
(h) enter into partnership on behalf of the firm
29. Admittedly, filing of the present suit by Sh. Yogesh Mitra, partner of plaintiff, is not excluded in the above said list, therefore, I held that present suit has been instituted by duly authorized person of the plaintiff's firm. Hence, I decide issue no. 3 in favour of plaintiff and against defendant.
Issue No. 4 : Whether this Court has no pecuniary jurisdiction to entertain the present suit ? Onus upon both parties.
30. It is argued by learned counsel for plaintiff that a sum of Rs. 2,47,621/- is due against the defendant and further, defendant is also liable to pay the interest on the said amount from 04.01.2019 till November 2022, thus, the total amount is above Rs. 3 lakh and this Court has pecuniary jurisdiction to entertain the present suit.
31. On the other hand, learned counsel for defendant has argued that since the principal amount is due Rs. 2,47,621/- only which is below Rs. 3 lakh as per own case of the plaintiff, the present suit cannot be instituted before this Court as this Court has jurisdiction which is pecuniary value more than Rs. 3 lakh.
32. As per Section 3 of The Commercial Courts Act, 2015, the CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 15 of 41 The State Government may constitute such number of Commercial Courts at District level and specify pecuniary value with respect to jurisdiction of said Commercial Courts but same shall not be less than three lakh rupees. Section 3 of the Act is reproduced below :-
Section 3. Constitution of Commercial Courts 1[3. Constitution of Commercial Courts.-- (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
2[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.];
CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 16 of 41 (2) The State Government shall, after consultation with the concerned High Court specify, by notification, the local limits of the area to which the jurisdiction of a Commercial Court shall extend and may, from time to time, increase, reduce or alter such limits.
(3) The 4[State Government may], with the concurrence of the Chief Justice of the High Court appoint one or more persons having experience in dealing with commercial disputes to be the Judge or Judges, of a 5[Commercial Court either at the level of District Judge or a court below the level of a District Judge].
33. Further, Order VII Rule 2(A) of CPC provides that where the plaintiff seeks interest, the plaint shall contain a statement to that effect. Since the plaintiff besides principal amount is also seeking interest in the present, therefore, in my view, the principal amount and the interest amount sought by the plaintiff will be clubbed together for the purpose of pecuniary jurisdiction and since principal amount and interest amount claimed by the plaintiff is more than Rs. 3 lakh i.e. Rs. 4,18,479/-, therefore, in my view, this Court has pecuniary jurisdiction to entertain the present suit. Hence, I decide issue no. 4 in favour of the plaintiff and against the defendant.
Issue No. 5 : Whether an amount of Rs. 2,47,621/- is due against the defendant for supply of the goods by the plaintiff ? OPP
34. The onus to prove this issue is upon the plaintiff. As stated above, the plaintiff has examined Sh. Yogesh Mitra, partner of CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 17 of 41 plaintiff firm, as PW1 who led his evidence by way of affidavit Ex. PW1/1. PW1 has categorically deposed that plaintiff firm has supplied the goods to the defendant through various invoices starting from 04.09.2017 and a sum of Rs. 2,47,621/- is due against the defendant. He has also proved the invoices as Ex. PW1/B1 to Ex. PW1/B18, cheque issued to the plaintiff by defendant regarding part payment as Ex. PW1/D. Though he has also relied upon ledger account maintained by plaintiff qua the defendant as Mark B but as held above same is not proved as per Indian Evidence Act
35. In his cross examination, he deposed that he knows the defendant from 2016-17 when they started business with them. He again stated that the business was done with defendant since the year 2017-18. He also deposed that he knows the Parshav Motors but does not remember till when business was done with Parshav Motors. He also deposed that the defendant placed purchase orders through whatsapp and on phone. He admitted that no signatures of defendant is present at the column mentioned as receiver's signatures on Ex. PW1/B1 to Ex. PW1/B18. He denied the suggestion that the invoices Ex. PW1/B1 to Ex. PW1/B18 were never sent to defendant. He deposed that invoices were sent alongwith the goods and the goods were sent through transport and transporter has issued the billty of booking the goods but he has not filed the same on record. He voluntarily submitted that same were sent to the defendant and further the builty number is CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 18 of 41 mentioned on the invoice. He also deposed that the e-way bill is generated for the invoices where the amount of invoices is more than Rs. 50,000/- and the e-way bill of invoic Ex. PW1/B13 has been generated as value of the said invoice is more than Rs. 50,000/-. He also deposed that he has not filed the said e-way bill on record and he does not remember when the last invoice was raised. He further deposed that he had mentioned that the defendant has admitted Rs. 2,47,621/- as same is mentioned in ledger. He further deposed that there is no document in writing that defendant admitted his liability. He deposed that he does not remember the date, month or year when the defendant admitted liability of Rs. 2,47,621/- telephonically. However, he stated that he does not remember the number from which defendant has made call and stated that his brother used to talk with defendant. He further deposed that there is no personal dealing with defendant except the business dealing with plaintiff firm. He further deposed that his brother has gone to the defendant office and he personally did not visit. He denied the suggestion that his brother used to take the due amounts in cash from defendant whenever he used to visit to Ahmadabad and there is no due against the defendant.
36. On the other hand, defendant in order to deny the claim of plaintiff has examined himself as DW1, who led his evidence by way of affidavit Ex. DW1/A. DW1 has deposed that defendant was small retailers carrying out business as a proprietary firm of CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 19 of 41 selling motors parts at Ahmedabad, Gujarat in association with M/s Parsva Motors and worked up to 19.05.2018 with Sh. Sachin Mahesh Bhai Shah, proprietor of M/s Parsva Motors but due to some difference arose in December, 2016 between the defendant and M/s Parsva Motors, the defendant became separated and shifted to other place after settlement of account and after mutual settlement between them that all the assets and liabilities, if any, were taken by M/s Parsva Motors. He further stated that after December, 2016 the defendant never ordered and received the goods from the plaintiff as he orally informed the plaintiff not to supply the goods in the name of defendant due to difference and dispute between M/s Parsva Motors in Dec, 2016. He further stated that during the business dealing before March, 2017 the defendant had issued few cheque for security purpose which were fraudulently encashed by the plaintiff without information / intimation to defendant and when defendant came to know about the same he lodged protest before the plaintiff over telephone and the defendant was continuously followed up M/s Parshva Motors for such fraud but every time the Parshva Motors assured that same shall be adjusted in future transaction but same were not adjusted and no amount is due against the defendant.
37. In his cross examination, DW1 has deposed that he has been running business under the name of Krisha Enterprises since year 2022. He deposed that he knows Cubex Industries from the day when the suit was filed and voluntarily stated that prior to it, CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 20 of 41 he knows Cubex Products. He was shown screenshot of whatsapp Mark DX but he stated that he never issued cheques in favour of plaintiff and never paid any amount to the plaintiff. He admits that the said cheque belongs to his bank account bearing no. 134004301000046, the Bhagyodaya Co-operative Bank Ltd. He admits that he signed the said cheque. He deposed that he does not know whether an amount of Rs. 23,446/- has been transferred through NEFT on 14.05.2018 from his account to plaintiff bank account. He further deposed that his account was operated by him, his friend Sachin S/o Sh. Mahesh Bhai Shah and his accountant. He admits that the cheques from his account can be cleared only on his signatures.
He was put GSTR3B of GST no. 24AZVPS4195G1ZN filed by defendant Ex. DW1/P1, he deposed that he does not know whether input credit of the invoices of purchase of goods reflected in his GST returns has been taken or not. He voluntarily stated that his CA would know the same and as per his knowledge at the relevant period, there was no input credit invoice wise and the input credit used to be taken on the difference of value of sale and purchase. He further deposed that he does not know whether all these invoices mentioned in the GSTR returns are plaintiff or not. He further deposed that he cannot tell after verifying the same whether same are plaintiff or not. He further deposed that whatever details is available on the GST portal regarding his GSTR has been filed by him with respect to year 2018-19. He CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 21 of 41 further deposed that he only filed the GSTR2A documents pertaining to the plaintiff and he has not filed any complaint in any authority against the plaintiff for misusing the cheques given by him.
38. It is argued by learned counsel for plaintiff that from the testimony of PW1 it is proved that plaintiff has supplied the goods to the defendant through invoices as Ex. PW1/B1 to Ex. PW1/B18 and further, the ledger account maintained by plaintiff also proved that a sum of Rs. 3,95,821/- is due against the defendant, which plaintiff is entitled to recover.
39. On the other hand, Ld. Counsel for defendant has argued that plaintiff through the testimony of PW1 has miserably filed to prove that plaintiff has supplied the goods to the defendant. He further argued that invoices filed by the plaintiff do not bear the receipt of the defendant and similarly, alleged ledger account also do not bear the signature of defendant that he has acknowledged the said liability. He further argued that these are self generated documents and on the basis of which no liability can be fasten upon the defendant. He further argued that plaintiff can prove liability of defendant by showing cogent evidence i.e. receipt of goods by defendant but no such receipt placed on record, hence, plaintiff has failed to prove his case.
40. Since the defendant has denied receiving of any goods from plaintiff after year 2016. I am fully agree with the submissions of learned counsel for defendant that onus is upon the plaintiff that a CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 22 of 41 sum of Rs. 2,47,621/- is due. Section 101 and 102 of Indian Evidence Act deals with burden of proof which are reproduced as under:
101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.
41. Whereas Section 103 and The Indian Evidence Act provides that burden of proof of a particular facts on that person who wants courts to believe existence of any particular facts. Section 103 is reproduced as under:-
"103.The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 23 of 41 it is provided by any law that the proof of that fact shall lie on any particular person."
"106.When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
42. Hon,ble Supreme Court in Raghavamma and another v. A. Chenchamma and another 1964 AIR 136, referring to sections 101 to 103 explained the distinction between burden of proof and onus of proof in the following terms :
"There is an essential distinction between Burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
(16) The burden of proof that lies under Section 101 and that under Section 102 of the Evidence Act is distinguishable : the former has been described as a "legal" or "persuasive burden"
and the latter as the evidential burden or as the "burden of adducing evidence" (Phipson). It is easy enough to say concerning the legal or persuasive burden that it lies on whichever party would fail if no evidence were given on either side or if the allegation to be proved is struck out of the record. But, as Rupert Cross points out "A moment's reflection should suffice to show that these tests arc only applicable to the evidential burden ; they cannot apply to the legal burden in all cases." "As a matter of commonsense", "the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or that prosecutor in criminal CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 24 of 41 proceedings"; it would go to such length as the burden of proof of the assertion still resting upon the plaintiff even "if the assertion of a negative is an essential part of the plaintiff's case." (Vide Bowen, L.J. in Abrath v. North Eastern Rail, Co., 1883 Ii Q.B.D. 440 at p. (457 a decision which was affirmed by the House of Lords in (1886) Ii A.C. 247). Cross explains the difficulty which may sometimes arise with regard to the question whether an assertion is essential to a party's case or that of the adversary by referring to the decision of the House of Lords in Joseph Constantine Steamship Line, Lid. v. imperial Smelting Corporation, Ltd. (1942 A.C. 154) (9). In that case the charterer of the ship claimed damages from the owners for failure to load ; the owners pleaded frustration of the contract by reason of the destruction of the ship owing to an explosion. The question of fact for determination was whether the explosion had been caused by the fault of the owner, but the evidence was scanty on this question. The House of Lords held that thc plaintiff had the legal burden of proving default when frustration of the contract was pleaded. In some cases, as Cross explains, it becomes necessary to ascertain the "legal burden of proof" even after consulting the precedents concerned with the various branches of substantive law. Even greater difficulty arises when the existence or non- existence of any fact in issue may be known for certain by one of the parties and this is often said to have an important bearing on the incident of burden of proof of that fact. Reference in this connection is made by him to R. v. Turner, (1816) 5 m. & S. 206) where the accused was prosecuted for having pheasants and hares in his possession without the necessary qualification or authorisation; ten possible qualifications had been mentioned in the relevant statute. The King's Bench held that it was unnecessary for the Crown to prove that these qualifications did not apply to the case. "
43. On analyzing the testimony of plaintiff and defendant witnesses, it is evident that though PW1 has deposed that, it supplied goods to the defendant through invoices as Ex. PW1/B1 CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 25 of 41 to Ex. PW1/B18. From perusal of said invoices it is evident that same are tax invoice, and plaintiff has sold goods to M/s Krishna Enterprises, B/862 Arbuda Nagar, Odhav Road, Ahmadabad having GST number 24AZVPS4195G1ZN, Said bills also contain Eway bill number, however I am agree with the submission of Ld. Counsel for defendant that since none of these invoices bears the receiving of defendant therefore same does not itself prove that goods sold through said invoices supplied to defendant. Further, the ledger statement maintain by plaintiff qua transaction with defendant has also not been proved by plaintiff as per Indian Evidence Act as same is a computer print out of the record but no certificate as mandated u/s 11(6) of Commercial Courts Act 2015, or 65 B Indian Evidence Act has been prove, however, the plaintiff has proved the defendant cheque dt. 22.12.2018 EXPW1/D regarding payment of Rs. 15004/-. The payment to plaintiff through said cheque is not denied. If plaintiff has not supplied any goods to defendant after 2016 there appear no reason for defendant to make payment of abovesaid amount to plaintiff. Further I also found force in the contention of Ld. Counsel for plaintiff that defendant has filed his GSTR2A statement which reflect sale of goods through aforesaid invoices by plaintiff and can be used as corroborative evidence in support of aforesaid invoices.
44. As per Section 31 of The Central Goods and Services Tax Rules, 2017, a registered person supplying taxable goods has to CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 26 of 41 issue a tax invoice showing the description, quantity and value of the goods. As per Section 37(1) of the Act, Every registered person shall furnish, electronically, the details of outward supplies of goods or services or both effected during a tax period on or before the tenth day of the month succeeding the said tax period. Further as per section 38 the details of supplied of goods by registered person would be available to the recipient of goods. Further as per section 41 recipients of goods can claim input tax credit on received goods. The relevant Sections are produced as below:-
Section 31. Tax invoice.
(1) A registered person supplying taxable goods shall, before or at the time of,
(a) removal of goods for supply to the recipient, where the supply involves movement of goods; or
(b) delivery of goods or making available thereof to the recipient, in any other case, issue a tax invoice showing the description, quantity and value of goods, the tax charged thereon and such other particulars as may be prescribed:
Provided that the Government may, on the recommendations of the Council, by notification, specify the categories of goods or supplies in respect of which a tax invoice shall be issued, within such time and in such manner as may be prescribed. (2) A registered person supplying taxable services shall, before or after the provision of service but within a prescribed period, issue a tax invoice, showing the description, value, tax charged thereon and such other particulars as may be prescribed:
Provided that the Government may, on the recommendations of the Council, by notification and subject to such conditions as may be mentioned therein, specify the categories of services in respect of which
(a) any other document issued in relation to the supply shall be CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 27 of 41 deemed to be a tax invoice; or
(b) tax invoice may not be issued.
(3) Notwithstanding anything contained in sub-sections (1) and (2).
(a) a registered person may, within one month from the date of issuance of certificate of registration and in such manner as may be prescribed, issue a revised invoice against the invoice already issued during the period beginning with the effective date of registration till the date of issuance of certificate of registration to him;
(b) a registered person may not issue a tax invoice if the value of the goods or services or both supppplied is less than two hundred rupees subject to such conditions and in such manner as may be prescribed;
(c) a registered person supplying exempted goods or services or both or paying tax under the provisions of section 10 shall issue, instead of a tax invoice, a bill of supply containing such particulars and in such manner as may be prescribed:
Provided that the registered person may not issue a bill of supply if the value of the goods or services or both supplied is less than two hundred rupees subject to such conditions and in such manner as may be prescribed;
(d) a registered person shall, on receipt of advance payment with respect to any supply of goods or services or both, issue a receipt voucher or any other document, containing such particulars as may be prescribed, evidencing receipt of such payment;
(e) where, on receipt of advance payment with respect to any supply of goods or services or both the registered person issues a receipt voucher, but subsequently no supply is made and no tax invoice is issued in pursuance thereof, the said registered person may issue to the person who had made the payment, a refund voucher against such payment;
(f) a registered person who is liable to pay tax under sub-
section (3) or sub-section (4) of section 9 shall issue an invoice in respect of goods or services or both received by him from the supplier who is not registered on the date of receipt of goods or services or both;
(g) a registered person who is liable to pay tax under sub- section (3) or sub-section (4) of section 9 shall issue a payment voucher at the time of making payment to the supplier.
(4) In case of continuous supply of goods, where successive statements of accounts or successive payments are involved, CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 28 of 41 the invoice shall be issued before or at the time each such statement is issued or, as the case may be, each such payment is received.
(5) Subject to the provisions of clause (d) of sub-section (3), in case of continuous supply of services,
(a) where the due date of payment is ascertainable from the contract, the invoice shall be issued on or before the due date of payment;
(b) where the due date of payment is not ascertainable from the contract, the invoice shall be issued before or at the time when the supplier of service receives the payment;
(c) where the payment is linked to the completion of an event, the invoice shall be issued on or before the date of completion of that event.
(6) In a case where the supply of services ceases under a contract before the completion of the supply, the invoice shall be issued at the time when the supply ceases and such invoice shall be issued to the extent of the supply made before such cessation.
(7) Notwithstanding anything contained in sub-section (1), where the goods being sent or taken on approval for sale or return are removed before the supply takes place, the invoice shall be issued before or at the time of supply or six months from the date of removal, whichever is earlier.
Explanation.--For the purposes of this section, the expression "tax invoice" shall include any revised invoice issued by the supplier in respect of a supply made earlier.
Section 37. Furnishing details of outward supplies. (1) Every registered person, other than an Input Service Distributor, a non-resident taxable person and a person paying tax under the provisions of section 10 or section 51 or section 52, shall furnish, electronically, [subject to such conditions and restrictions and] in such form and manner as may be prescribed, the details of outward supplies of goods or services or both effected during a tax period on or before the tenth day of the month succeeding the said tax period and such details [shall, subject to such conditions and restrictions, within such time and in such manner as may be prescribed, be communicated to the recipient of the said supplies:] CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 29 of 41 [Provided that] the Commissioner may, for reasons to be recorded in writing, by notification, extend the time limit for furnishing such details for such class of taxable persons as may be specified therein:
[Provided further that] any extension of time limit notified by the Commissioner of State tax or Commissioner of Union territory tax shall be deemed to be notified by the Commissioner.
.
(3) Any registered person, who has furnished the details under sub-section (1) for any tax period , shall, upon discovery of any error or omission therein, rectify such error or omission in such manner as may be prescribed, and shall pay the tax and interest, if any, in case there is a short payment of tax on account of such error or omission, in the return to be furnished for such tax period:
Provided that no rectification of error or omission in respect of the details furnished under sub-section (1) shall be allowed after [the thirtieth day of November] following the end of the financial year to which such details pertain, or furnishing of the relevant annual return, whichever is earlier.. [Provided further that the rectification of error or omission in respect of the details furnished under sub-section (1) shall be allowed after furnishing of the return under section 39 for the month of September, 2018 till the due date for furnishing the details under sub-section (1) for the month of March, 2019 or for the quarter January, 2019 to March, 2019.] Explanation.--For the purposes of this Chapter, the expression "details of outward supplies" shall include details of invoices, debit notes, credit notes and revised invoices issued in relation to outward supplies made during any tax period.
[(4) A registered person shall not be allowed to furnish the details of outward supplies under sub-section (1) for a tax period, if the details of outward supplies for any of the previous tax periods has not been furnished by him: Provided that the Government may, on the recommendations of the Council, by notification, subject to such conditions and restrictions as may be specified therein, allow a registered person or a class of registered persons to furnish the details of outward supplies under sub-section (1), even if he has not furnished the details of outward supplies for one or more CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 30 of 41 previous tax periods.] Section 38. Communication of details of inward supplies and input tax credit.
[38. Communication of details of inward supplies input tax credit.--(1) The details of outward supplies furnished by the registered persons under sub-section (1) of section 37 and of such other supplies as may be prescribed, and an auto- generated statement containing the details of input tax credit shall be made available electronically to the recipients of such supplies in such form and manner, within such time, and subject to such conditions and restrictions as may be prescribed.
(2) The auto-generated statement under sub-section (1) shall consist of--
(a) details of inward supplies in respect of which credit of input tax may be available to the recipient; and
(b) details of supplies in respect of which such credit cannot be availed, whether wholly or partly, by the recipient, on account of the details of the said supplies being furnished under sub-section (1) of section 37,--
(i) by any registered person within such period of taking registration as may be prescribed; or
(ii) by any registered person, who has defaulted in payment of tax and where such default has continued for such period as may be prescribed; or
(iii) by any registered person, the output tax payable by whom in accordance with the statement of outward supplies furnished by him under the said sub-section during such period, as may be prescribed, exceeds the output tax paid by him during the said period by such limit as may be prescribed; or
(iv) by any registered person who, during such period as may be prescribed, has availed credit of input tax of an amount that exceeds the credit that can be availed by him in accordance with clause (a), by such limit as may be prescribed; or
(v) by any registered person, who has defaulted in discharging his tax liability in accordance with the provisions of sub-
section (12) of section 49 subject to such conditions and restrictions as may be prescribed; or (vi) by such other class of persons as may be prescribed.] CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 31 of 41 Section 41. Availment of input tax credit.
1[41. Availment of input tax credit.--(1) Every registered person shall, subject to such conditions and restrictions as may be prescribed, be entitled to avail the credit of eligible input tax, as self-assessed, in his return and such amount shall be credited to his electronic credit ledger.
(2) The credit of input tax availed by a registered person under sub-section (1) in respect of such supplies of goods or services or both, the tax payable whereon has not been paid by the supplier, shall be reversed along with applicable interest, by the said person in such manner as may be prescribed:
Provided that where the said supplier makes payment of the tax payable in respect of the aforesaid supplies, the said registered person may re-avail the amount of credit reversed by him in such manner as may be prescribed.]
45. Rule 59 of CG & ST Rules 2017 provides every register person shall furnish the details of outward supplies of goods or services in GSTR1 form and rule 60 provides that that details of outward supplies furnished by the supplier in GSTR1 form will be available electronically in to the concerned registered person (recipients) in Form GST-2A, Form GST4A and form GSTR6A. The relevant Rules 59 and 60 are reproduce as below:-
59. Form and manner of furnishing details of outward supplies.- (1) Every registered person, other than a person referred to in section 14 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), required to furnish the details of outward supplies of goods or services or both under section 37, shall furnish such details in FORM GSTR-1 for the month or the quarter, as the case may be, electronically through the common portal, either directly or through a Facilitation Centre as may be notified by the Commissioner.
(2) The registered persons required to furnish return for every CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 32 of 41 quarter under proviso to subsection (1) of section 39 may furnish the details of such outward supplies of goods or services or both to a registered person, as he may consider necessary, for the first and second months of a quarter, up to a cumulative value of fifty lakh rupees in each of the months,- using invoice furnishing facility (hereafter in this notification referred to as the ―IFF‖) electronically on the common portal, duly authenticated in the manner prescribed under rule 26, from the 1st day of the month succeeding such month till the 13th day of the said month.
[Provided that a registered person may furnish such details, for the month of April, 2021, using IFF from the 1st day of May, 2021 till the 28th day of May, 2021.] [Provided further that a registered person may furnish such details, for the month of May, 2021, using IFF from the 1st day of June, 2021 till the 28th day of June, 2021.]140 (3) The details of outward supplies furnished using the IFF, for the first and second months of a quarter, shall not be furnished in FORM GSTR-1 for the said quarter. (4)The details of outward supplies of goods or services or both furnished in FORM GSTR-1 shall include the-
(a) invoice wise details of all -
(i) inter-State and intra-State supplies made to the registered persons; and
(ii) inter-State supplies with invoice value more than two and a half lakh rupees made to the unregistered persons;
(b) consolidated details of all -
(i) intra-State supplies made to unregistered persons for each rate of tax; and
(ii) State wise inter-State supplies with invoice value upto two and a half lakh rupees made to unregistered persons for each rate of tax;
(c) debit and credit notes, if any, issued during the month for invoices issued previously.
[(5) The details of outward supplies of goods or services or both furnished using the IFF shall include the -
CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 33 of 41
(a) invoice wise details of inter-State and intra-State supplies made to the registered persons;
[(6) Notwithstanding anything contained in this rule, -
(a) a registered person shall not be allowed to furnish the details of outward supplies of goods or services or both under section 37 in FORM GSTR-1, if he has not furnished the return in FORM GSTR-3B [for preceding two months]
(b) a registered person, required to furnish return for every quarter under the proviso to subsection (1) of section 39, shall not be allowed to furnish the details of outward supplies of goods or services or both under section 37 in FORM GSTR-1, if he has not furnished the return in FORM GSTR-3B for preceding two months;
[60. Form and manner of ascertaining details of inward supplies.-
(1)The details of outward supplies furnished by the supplier in FORM GSTR-1 or using the IFFshall be made available electronically to the concerned registered persons (recipients) in Part A of FORM GSTR-2A, in FORM GSTR-4A and in FORM GSTR-6A through the common portal, as the case may be.
(2)The details of invoices furnished by an non-resident taxable person in his return in FORM GSTR-5 under rule 63 shall be made available to the recipient of credit in Part A of FORM GSTR 2A electronically through the common portal. (3)The details of invoices furnished by an Input Service Distributor in his return in FORM GSTR-6 under rule 65 shall be made available to the recipient of credit in Part B of FORM GSTR 2A electronically through the common portal. (4)The details of tax deducted at source furnished by the deductor under sub-section (3) of section 39 in FORM GSTR- 7 shall be made available to the deductee in Part C of FORM GSTR-2A electronically through the common portal (5)The details of tax collected at source furnished by an e- commerce operator under section 52 in FORM GSTR-8 shall be made available to the concerned person in Part C of FORM GSTR 2A electronically through the common portal.
CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 34 of 41 (6) The details of the integrated tax paid on the import of goods or goods brought in domestic Tariff Area from Special Economic Zone unit or a Special Economic Zone developer on a bill of entry shall be made available in Part D of FORM GSTR-2A electronically through the common portal. (7) An auto-drafted statement containing the details of input tax credit shall be made available to the registered person in FORM GSTR-2B, for every month, electronically through the common portal, and shall consist of -
(i) the details of outward supplies furnished by his supplier, other than a supplier required to furnish return for every quarter under proviso to sub-section (1) of section 39, in FORM GSTR-1, between the day immediately after the due date of furnishing of FORM GSTR-1 for the previous month to the due date of furnishing of FORM GSTR-1 for the month;
1(ii) the details of invoices furnished by a non-resident taxable person in FORM GSTR-5 and details of invoices furnished by an Input Service Distributor in his return in FORM GSTR-6 and details of outward supplies furnished by his supplier, required to furnish return for every quarter under proviso to sub-section (1) of section 39,in FORM GSTR-1 or using the IFF, as the case may be,-
(a)for the first month of the quarter, betweenthe day immediately after the due dateof furnishing ofFORM GSTR- 1for the preceding quarterto thedue date of furnishing details usingtheIFF for the first month of the quarter;
(b)for the second month of the quarter, between theday immediately after thedue date of furnishing details usingthe IFF for the first month of the quarter to thedue date of furnishing details usingthe IFF for the second month of the quarter;
(c) for the third month of the quarter, between theday immediately after the due date of furnishing of details using the IFF for the second month of the quarter to the due date of furnishing of FORM GSTR-1 for the quarter;
(iii) thedetails of the integrated tax paid on the import of goods or goods brought in the domestic Tariff Area from Special Economic Zone unit or a Special Economic Zone CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 35 of 41 developer on a bill of entry in the month.
(8) The Statement in FORM GSTR-2B for every month shall be made available to the registered person,-
(i) for the first and second month of a quarter, a day after the due date of furnishing of details of outward supplies for the said month, in the IFF by a registered person required to furnish return for every quarter under proviso to sub-section (1) of section 39, or in FORM GSTR-1 by a registered person, other than those required to furnish return for every quarter under proviso to sub-section (1) of section 39, whichever is later;
(ii) in the third month of the quarter, a day after the due date of furnishing of details of outward supplies for the said month, in FORM GSTR-1 by a registered person required to furnish return for every quarter under proviso to sub-section (1) of section 39.]"
46. Thus from aforesaid provision of GST Act & rules it is evident that when a person sells the goods to another person by taxable invoices, he has to made entry of sale in GSTR portal and the sale is automatically reflected in the GSTR2A statement of purchaser.
47. Now reverting back to the case, defendant/ DW1 has been put in his cross examination defendant GSTR2A statement which is produced by defendant himself alongwith his GSTR3B statement EXDW1/P1 (colly 90 pages). Said GSTR2A contains entry of invoices no. 0066 dt. 04.09.2017 as Ex. PW1/B1, 0077 dt. 07.09.2017 as Ex. PW1/B2, 0084 dt. 12.09.2017 as Ex. PW1/B3, 133 dt. 07.10.2017 as Ex. PW1/B4, 157 dt. 17.10.2017 as Ex. PW1/B5, 174 dt. 02.11.2017 as Ex. PW1/B6, 0212 dt. 22.11.2017 as Ex. PW1/B7, 231 dt. 02.12.2017 as Ex. PW1/B8, 285 dt.
CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 36 of 41 06.01.2018 as Ex. PW1/B9, 319 dt. 27.01.2018 as Ex. PW1/B10, 381 dt. 05.03.2018 as Ex. PW1/B11, 10 dt. 04.04.2018 as Ex. PW1/B12, 112 dt. 02.06.2018 as Ex. PW1/B13, 123 dt. 11.06.2018 as Ex. PW1/B14, 156 dt. 25.06.2018 as Ex. PW1/B15, 215 dt. 01.08.2018 as Ex. PW1/B16, 254 dt. 27.08.2018 as Ex. PW1/B17 & 273 dt. 10.09.2018 as Ex. PW1/B18. thus, said sales in GSTR2A of defendant proves that plaintiff has shown sales through invoices Ex. PW1/B1 to Ex. PW1/B18 and made entry in the GST returns which have been duly reflected as sales to the defendant, Defendant has not deposed that he or his CA has made any communication to the plaintiff or to GST authority that the goods sold through aforesaid invoices EXPW1/B1 to EXPW1/B18, which have been shown as sales in his GSTR2A statement were not received by him. Defendant/ DW1 has categorically stated in his cross examination that whatever details available at GST portal regarding his GST have been filed with respect to year 2017-19, therefore, in my view defendant was fully aware that plaintiff has shown sale of goods vide invoices EX PW1/B1 to Ex. PW1/B18 in its GST return which were duly reflected in his return and despite this he did not take any action to rebut that said sale by sending communication to plaintiff or to GST authority but admittedly no such step was taken by defendant. Therefore, presumption can raised against the defendant that he has received the goods sold through the said invoices otherwise he or his CA would have CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 37 of 41 raised objection. Further from GST return file by defendant named as GSTR3B statement EX DW1/P1 of also it is proved that defendant has taken input credit. Undoubtedly from said statements it can not be inferred that input credit of these particular invoices has been taken by defendant or not as consolidated input credit taken in particular month is mentioned and not particular invoices voice in said statement. But once the sale through aforesaid invoices has been shown in defendant GST return known as GSTR2A, the defendant has to prove that he has not taken input credit of said goods.
48. Therefore considering the GSTR2A statement of defendant containing the details of invoices Ex. PW1/B1 to Ex. PW1/B18 by which plaintiff alleged to sold the goods to defendant and other documentary evidence i.e. aforesaid invoices, Cheque EXPW1/D, I found preponderance of probability is more in favour of plaintiff that plaintiff has sold the goods vide invoices Ex. PW1/B1 to Ex. PW1/B18 to the defendant and supplied the same to the defendant then testimony of defendant/ DW1 that he has no business dealing with plaintiff after 2016 and did not supplied the goods through vide invoices Ex. PW1/B1 to Ex. PW1/B18.
49. The total value of invoices Ex. PW1/B1 to Ex. PW1/B18 comes to Rs. 3,53,907/-. As per ledger mark B though not proved but can be read in favour of defendant, the defendant made payment of Rs. 1,06,286/-. Hence balance amount is Rs. 2,47,621/-. It is not the case of the CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 38 of 41 defendant that defendant has made payment of said balance amount to the defendant. Therefore, I held that plaintiff is entitled to recover said balance amount from defendant
50. As far contention of Ld. Counsel for defendant that no such goods ordered by the defendant to the plaintiff as no purchase order is proved. In my view, written purchase order is necessary. There is no reason to the plaintiff to sell the goods to the defendant if same is not ordered by the defendant. PW1 has categorically deposed that defendant has placed orders through telephone and whatsapp. Further, though defendant states in WS as well as in the testimony of DW1 that there is no dealings with plaintiff after 2016 but when colour copy of cheque Ex. PW1/D was put to him dated 22.02.2018 regarding payment of Rs. 15,004/- in the name of Cubex Industries, he admitted that said cheque is of his account. He admitted that he has signed the said cheque, therefore, this clearly proves that defendant has dealings with the plaintiff even in 2018 and this also proves that defendant has wrongly deposed in his testimony that he has no dealings with the plaintiff after December, 2016.
51. As far as another contention of Ld. Counsel for defendant that defendant was dealings with plaintiff in association with M/s Parsva Motors and after 2016, dispute arise between defendant and said Parsva Motors and thereafter, they got separated and all the assets and liabilities, if any, were taken by M/s Parsva Motors is concerned, defendant has not produced any document that CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 39 of 41 liability of the goods supplied by the plaintiff through invoices Ex. PW1/B1 to Ex. PW1/B18 have been taken by the said Parsva Motors, therefore, in these circumstances, I held that plaintiff through preponderance of probability has been able to prove that it has supplied the goods to the defendant and defendant has not made full payment and a sum of Rs. 2,47,621/- is due against the defendant. Hence, defendant is liable to pay the said amount to the plaintiff. Issue no. 5 is decided accordingly.
Issue No. : 6 Whether the plaintiff is entitled to interest on the aforesaid amount, if so at what rate and for which period ? OPP And Issue NO. 7 : Whether the plaintiff is entitled to pendentelite and future interest, if so, at what rate ? OPP
52. Plaintiff has claimed interest @18% p.a. From the invoices it is stipulated in terms & conditions that interest @ 18% p.a. will be charged if the payment is not made within the stipulated time, therefore, in my view, since defendant has deprived the plaintiff from use of said amount, thus wrongful cause to the plaintiff and wrongful gain himself, therefore, the plaintiff company is entitled to recover interest @18% per annum on the said amount of Rs. 2,47,621/- from the date of 04.01.2019 till the date of filing of the suit and thereafter, plaintiff will also be entitled to pendent-lite and future interest @ 12% p.a. on aforesaid amount from the date CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 40 of 41 of filing of suit till the date of decree and thereafter till its realization. Issues No. 6 &7 are decided accordingly.
Relief
53. In view of my findgs in above issues, I pass a decree for a sum of Rs. 2,47,621/- (Rupees Two Lakh Forty Seven Thousand and Six Hundred Twenty One only) in favour of the plaintiff and against the defendant alongwith simple interest @18% per annum on the said amount of Rs. 2,47,621/- from the date of 04.01.2019 till the date of filing of the suit and thereafter, plaintiff will also be entitled to pendent-lite and future interest @12% p.a. on aforesaid amount from the date of filing of suit till the date of decree and thereafter till its realization. Defficient Court fees, if any, be paid. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Pronounced in open Court on 15.07.2024.
(Sanjeev Kumar Aggarwal) SANJEEV Digitally signed by SANJEEV District Judge (Commercial Court)-01, KUMAR KUMAR AGGARWAL AGGARWAL Date: 2024.07.15 Central, Tis Hazari Courts, Delhi.
10:34:31 +0530 CS (COMM) NO. 2727/22, Cubex Industries Vs. Shyam Narain Ram Kuber Shukla Page No. 41 of 41