Delhi District Court
Tasarim Yayim Grubu San Ve Tic Ltd vs Om Arora on 28 August, 2025
IN THE COURT OF PULASTYA PRAMACHALA,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURTS, NEW DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Memo of Parties & Description of Case 2
2 Brief Facts of the Case of the Plaintiff 2-5
3 Plea of Defendant in Written Statement 5-7
4 Replication of the Plaintiff 7
5 Issues 7-8
6 Evidence of Plaintiff 8-9
7 Evidence of Defendant 9-10
Appreciation of Facts and Law
8 Issue No.2 10-18
9 Issue No.1 18-25
10 Relief 25
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2025.08.28
13:15:53
+0530
CS 622/2018 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page 1 of 25 Patiala House Court, New Delhi
CS(COMM.) 622/2018
In the matter of:
Tasarim Yayim Grubu San.Ve TIC Ltd.
Through: Authorized Repesentative/POA
Mr. Naim Ahmed
San Ve Tic Ltd. Sti,
Markez Mah. Hanimefendi Sok.
Apt. No.238/B D1, Istanbul, Turkey,
In India,
House No.207, Basti Hazrat Office at,
Nizamuddin West, New Delhi.
...Plaintiff.
Versus
Mr. Om Arora
Proprietor M/s Variety Book Depot
A.V.G. Bhawan, M-3, Cannaught Circus,
Inner Circle,
Middle Circle, New Delhi-110001.
....Defendant
Date of Institution : 08.06.2018
Conclusion of arguments: 13.08.2025
Date of Judgment : 28.08.2025
Decision : Suit of plaintiff is dismissed.
JUDGMENT
DESCRIPTION OF CASE
1. This is a suit for recovery of Rs.56,50,257/- (Rupees Fifty Six Lakhs Fifty Thousand Two Hundred Fifty Seven).
FACTS OF CASE
2. As per plaint, plaintiff was a juristic person being a company incorporated under Local Laws of Turkey. This suit was filed CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 2 of 25 Patiala House Court, New Delhi through holder of Power of Attorney/authorized representative Mr. Naim Ahmad. It has been averred that the plaintiff was trustworthy and prominent name in book producers worldwide and was part of the Tasarim Group, which is a book producer. It has been pleaded that the products of the plaintiff were being sold around the globe and it had a uniform business and marketing strategy around the world. Plaintiff sold its books through its country specific distributor. It has been averred that plaintiff had a wholesale distributor in every country, in which they did business, who used to buy pre-printed books and also get specific books printed by the plaintiff company and distribute the same in the specific country by adding their operational expenses and profit. But the plaintiff company had no authority to check the prices decided by the distributor for its specific country market. It is the case of the plaintiff that before publishing the book in physical or digital form, plaintiff first shared the draft of the book with distributor and only after the approval, the desired number of copies were printed with the desired trademark of the distributor on it.
3. It has been pleaded in the plaint that the defendant was one of the country distributor of the plaintiff company and both the parties were doing business with each other since 2001. Plaintiff always first shared the copies of book with Mr. Om Arora, who after selecting the certain books, used to place order and pursuant to this practice only, the plaintiff and defendant had done business to the value of USD 5,00,000/- (Five lakh dollars).
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 3 of 25 Patiala House Court, New Delhi
4. It has been further averred that in the month of November and December 2014, the plaintiff had shared the copies of several books on different topics, out of those defendant selected/suggested certain types of books and placed the order with the plaintiff company and the plaintiff got the exact number of copies printed with the logo of the defendant there upon, and got the consignment shipped to the desired address of the defendant at i.e. M-3, Middle Circle, Connaught Place, New Delhi-110001 from Turkey and the defendant had received the shipment in the intact manner and all the books were delivered to the defendant up to his satisfaction qua quantity and quality, details of which are mentioned in para 3 of the plaint. It has been further averred that total number of books printed and shipped by the plaintiff were 2580, which were packed in 165 boxes and the total agreed monetary price for the said consignment was USD 83024.40 and after receiving the said consignment, defendant made a payment of USD 24864.20 to the plaintiff till the month of February 2016. But thereafter defendant stopped making payments. Thereafter, plaintiff representative Mr. Rasit Tibet himself traveled to India and after discussion, it was again agreed that the defendant had to pay a sum of USD 66,400 to the plaintiff, which was to be paid in eight equal monthly installments of USD 8,302. In the month of February 2016, defendant made the last payment of USD 8289.40 to the plaintiff and afterwards he had not made any further payment.
5. Thereafter, plaintiff served emails dated 06.06.2017 and 20.06.2017 upon the defendant, to which defendant accepted the due amount CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 4 of 25 Patiala House Court, New Delhi but on whimsical and flimsy grounds denied the payment of the same. The plaintiff is entitled to recover the amount of USD 58,160.20 i.e. principal amount along with interest @15% per annum in the sum of USD 26172. Hence, the suit of the plaintiff.
PLEA OF DEFENDANT IN WRITTEN STATEMENT
6. Defendant was served with the summons and he filed his written statement. In his written statement, the defendant took the plea that the defendant firm was a well reputed distributor, seller of more than 11000 titles and dealt in various books. Besides that defendant maintained separate space in his showrooms for some publishers. It has been averred that defendant's firm got customers from various parts of country and defendant provided service to publishers as well as booksellers. It has been averred that plaintiff at his own sent his 2580 books to defendant for distributing them in his distribution network at the price which he himself has decided. Furthermore, plaintiff had told defendant that he was sending his books on beautiful dining rooms and kitchens etc. in total quantity of 2580 and the plaintiff had told defendant that he had to sale the books at the rates keeping in view the margin of defendant. Plaintiff had kept the monetary value of consignment of said books as USD 83024.40. It has been pleaded that plaintiff had asked for the prices for each piece of said books even above USD 32.18 in INR @ 67/- at that time, equal to Rs.2,156/- to which defendant could add his margin money of around 5-10% for each piece of said books. Defendant received the said books and agreed for distributing the said books in CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 5 of 25 Patiala House Court, New Delhi his distribution network at the said rates and repay the plaintiff the said monetary price according to sales and the payments were made only on stocks that were sold. It has been averred that defendant had never issued any order for printing the books rather the plaintiff company was transacting business with defendant since 20 years. It is the case of the defendant that plaintiff had sent the books in huge quantity without prior determining the needs in Indian context, terms and condition, contract or order. It has been averred that the books were not meant for Indian Conditions, were of poor of quality in their contents, covers and designs, and were very high in their prices. Hence, same could not be sold and in trade/business in such situations books could be returned to the publishers and due to the said reason defendant told the plaintiff and also sent an email, citing reasons for not selling the said books and asked shipment address of plaintiff for returning the remaining unsold books to the plaintiff. It has also been averred that similar books were also available at the showrooms of defendant and showrooms of various other distributors at much lower prices. The plea taken by the defendant is that the payments to the plaintiff were made on books sold after deducting the margin or making advance payment, if the books were in demand and defendant understood that soon the stock would be cleared. It has further been submitted that margin money of distributor/defendant could only be proportionately earned if he succeeded in selling more than 90% books of publishers, hence, all the prior payments were made to plaintiff i.e. around 30% specially when even 10% of said books could not be sold. Defendant had CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 6 of 25 Patiala House Court, New Delhi already suffered huge loss due to advance payment, which he had paid in consideration of long business relations with plaintiff and in the hope that books could be sold. It has been averred that there was a return policy in custom and practice with not only plaintiff, but with other publishers also and in case of any dissatisfaction regarding contents, schedule, quality of packaging etc. or stock could not be sold due to such dissatisfaction, it could be returned, with original invoice to the company. It has been denied that the plaintiff is entitled for a sum of USD 58,150.20 towards principal amount and USD 26,172 towards interest thereupon since 20.01.2025 along with pendentelite and future interest @15% per annum and it has been prayed that the suit of the plaintiff be dismissed with heavy cost.
REPLICATION OF THE PLAINTIFF
7. Replication has been filed by the plaintiff denying the facts of the written statement and reiterating the averments made in the plaint.
ISSUES
8. Vide order dated 08.07.2019 following issues were framed: -
8.1. Whether the plaintiff is entitled to recovery of an amount of USD 58160 towards principal amount due along with pendente lite and future interest @15%?OPP 8.2. Whether defendant had not issued any order to the plaintiff for purchase of the said books? OPD.
8.3. Relief.
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 7 of 25 Patiala House Court, New Delhi
9. After framing of issues case management hearing was conducted and dates were fixed for plaintiff's evidence, defendant's evidence and final arguments and Ld. Local Commissioner was appointed for recording evidence of the parties. After framing of issues, defendant had moved an application for amendment of issues, which was dismissed by the Court vide order dated 16.03.2021. The said order was not challenged by the defendant, thus, the same attained finality.
EVIDENCE OF PLAINTIFF
10. In its evidence, plaintiff examined one witness namely Naim Ahmed, i.e. AR as PW-1. He proved the documents i.e. Apostil Copy of Power of Attorney as Ex.CW-1/A; copy of remittance towards part payment of outstanding amount Ex.CW-1/B; Copy of Commercial Invoice dated 15.01.2015 Ex.CW-1/C; Copy of Bills of Lading dated 06.02.2015 Ex.CW-1/D; Copy of Exchange Control Ex.CW-1/E; Copy of handwritten undertaking dated 11.11.2015 Ex. CW-1/F and; copy of email correspondence Ex.CW-1/G (colly).
11. PW-1 was cross-examined at length by ld. Counsel for the defendant. In the present case, initially plaintiff moved an application for appointment of Translator for Turkish language, to which vide order dated 03.02.2020, the Court directed the plaintiff to file a certificate on behalf of Nafiz Ahmed (proposed interpreter) to the effect that he knew all the languages and that he had no objection for participating in court proceedings for purposes of translating the deposition of the witness and also about his fees and CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 8 of 25 Patiala House Court, New Delhi charges. Despite taking various adjournments, no interpreter was engaged in the present case and thereafter, plaintiff's evidence was closed.
EVIDENCE OF DEFENDANT
12. In his defence, defendant examined six witnesses i.e. DW-2 to DW-7 as per following particulars: -
12.1. DW-2 Sh. Arun Malhotra, proprietor of Super Book Distributor tendered his affidavit-in-evidence as DW-2/A and proved printout of record of return of books to M/s Variety Book Depot for the period 19.01.2017 to 09.12.2022 as Ex.DW-2/1 and Printout of return of books to various producers/publishers of books for the period 24.09.2022 to 19.12.2022 as Ex.DW-2/2. This witness was cross-examined at the hands of plaintiff.
12.2. DW-3 Sh Rupesh Dua, Proprietor of Pinky Book Distributor tendered his affidavit-in-evidence as DW-3/A and proved printout of record of return of books to M/s Variety Book Depot for the period 15.09.2017 to 12.01.2023 as Ex.DW-3/1 and Printout of return of books to various producers/publishers of books for the period 11.10.2022 to 28.10.2022 as Ex.DW-3/2. This witness was also cross-examined at the hands of plaintiff.
12.3. DW-4 Sh. Samir Arora, Proprietor of Konark Publishers also tendered his affidavit-in-evidence as DW-4/A and proved printout of record of return of books to M/s Variety Book Depot for the period 29.06.2018 to 28.10.2020 as Ex.DW-4/1. This witness was also cross-examined at the hands of plaintiff.
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 9 of 25 Patiala House Court, New Delhi 12.4. DW-5 Mirza Ahmed Baig, Proprietor of MID Land Book Shop also tendered his affidavit-in-evidence as DW-5/A and proved printout of record of return of books to M/s Variety Book Depot for the period 01.09.2016 to 24.11.2022 as Ex.DW-5/1 and Printout of return of books to various producers/publishers of books for the period 11.11.2022 to 21.12.2022 as Ex.DW-5/2. This witness was also cross-examined at the hands of plaintiff.
12.5. Defendant Om Arora, himself entered into witness box as DW-6 and tendered his affidavit in evidence as DW-6/A. He proved copies of front and back pages of books as Ex.DW-6/1; payments made to the plaintiff as Ex.DW-6/2; statement of account of M/s Variety Book depot for the financial year 2017-18 Ex.DW-6/3; ledger account of M/s Variety Book Depot Ex.DW-6/4; sales return notes Ex.DW-6/5 and copies of invoices of similar books as Mark A. The witness was cross-examined at length at the hands of plaintiff.
12.6. DW-6 Devender Singh, accountant in M/s Variety Book Depot tendered his affidavit and deposed that he relied upon the documents which were already marked as Ex.DW-6/3, Ex.DW-6/4 and Ex.DW-6/5.
13. Thereafter defendant's evidence was closed.
14. I heard ld. counsels for the parties and perused the record carefully.
My issue-wise findings in the present matter are as under:
APPRECIATION OF FACTS AND LAW Issue no.2: Whether defendant had not issued any order to the plaintiff for purchase of the said books? OPD.
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 10 of 25 Patiala House Court, New Delhi
15. I am taking up this issue before issue no.1, because finding on this issue will have its impact on the finding on issue no.1 also. Onus to prove this issue was put on the defendant. This issue was framed on the plea taken in preliminary objections of written statement by the defendant. In his written statement, the defendant took a plea that plaintiff on its own sent 2580 books to the defendant for distributing them in his distribution network at the price, which plaintiff itself had decided. It is worth to mention here that defendant has not denied having received 2580 books from the plaintiff. Dispute is in respect of the terms and condition of contract between the parties.
Though the onus was put on the defendant for this issue, but it has to be appreciated that negative evidence cannot be led by any litigant. At the relevant time of trial, Indian Evidence Act, 1872 was in operation. S. 101 of I.E. Act provided that onus to prove a fact asserted by a party, was on such party itself. It is the plaintiff which has asserted that defendant had placed purchase order for particular types of books in particular number, to be delivered to the defendant. Hence, the particular terms and condition of such contract, were to be proved by the plaintiff.
16. Defendant/DW-6 in his affidavit deposed that defendant never issued any order for printing the books, rather it was plaintiff company which was transacting business with the defendant for 20 years and sent its books for further distribution in India. DW6 further deposed that he used to pay plaintiff the asked price of such sold books only.
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 11 of 25 Patiala House Court, New Delhi
17. It was argued that defendant was distributor and not the purchaser of the books and all payments to publisher were subject to sale of books after deducting the commission, which was a tradition in that mercantile community. It argued that defendant had not placed any order nor selected any book, nor approved any design nor negotiated on sale price of books and never requisitioned 2580 books. It was argued that as custom in mercantile community of books, the books are supplied to distributors on credit basis and he makes payment to supplier or publisher/producer subject to sale of books and in case of books are not sold, then the books are returned. All the four witnesses i.e. DW-2 to DW-5, who were in same mercantile community, deposed on the same lines. They all deposed that it was the tradition in this business of selling books by publishers that distributors used to sell the books of suppliers/publishers/producer in his distribution network and pay money to respective supplier or publisher or producer of the books on sales of its books; however, in case said distributor could not sell any or entire of said stock of books then the said distributor used to return the books to respective supplier/publisher or producer of books. DW-2 to DW-5 proved their sales return record as Ex. DW-2/1, Ex. DW-3/1, Ex. DW-4/1, Ex. DW-5/1. Almost same cross-examination of these witnesses, was conducted by the plaintiff. Suggestion was given to these witnesses that there was no customary practice of making payments after sale of books by the distributor to the publisher, which was denied by them.
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 12 of 25 Patiala House Court, New Delhi
18. On the other hand, PW-1 in his evidence deposed that in the month of November and December 2014, the plaintiff shared the copies of several books on different topics and out of those defendant selected/suggested certain types of books and placed the order with the plaintiff company. Same were got shipped to defendant from Turkey. PW1 stated that the defendant had received the consignment in the intact manner and after receiving the consignment made a payment of USD 24864.20 to the plaintiff till the month of February 2016. But thereafter defendant stopped making payment. PW1 also stated that Mr. Rasit Tibet traveled to India in the month of November 2015 and during the discussion on 11.11.2015, it was agreed that the defendant had to pay a sum of USD 66,400 to the plaintiff and the same was to be paid in eight equal monthly installments of USD 8302.40. Photocopy of the said document was proved on record as Ex. CW-1/F. PW-1 also deposed that parties had exchanged various emails Ex. CW-1/G.
19. Perusal of all the documents proved by PW1 shows that all of them were photocopy of respective documents. Except for Ex.CW-1/A and Ex.CW-1/F, plaintiff did not produce original of other documents. Ld. counsel for defendant had raised objections against exhibiting those documents, at the first instance itself i.e. during examination in chief of PW1. Unfortunately, despite such objections taken, PW1 did not produce the original documents nor did plaintiff summon the original record/document from the bank. Ex.CW-1/B is a letter purportedly written by defendant to his banker. Naturally, original of such letter could have been available with the banker of CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 13 of 25 Patiala House Court, New Delhi defendant, but plaintiff did not get the same summoned. Similarly, Ex.CW-1/C is shown to be a commercial invoice having stamp of firm of defendant on the bottom of the same. Ex.CW-1/D is purportedly an invoice issued by plaintiff for the defendant. PW1 did not mention as to where was original of these documents. Even though defendant did not deny the receipt of the books from the plaintiff, but plaintiff was required to prove that the books were actually ordered by the defendant against promise of full payment. But, for want of aforesaid documents being proved in accordance with law, contents of the same cannot be read in evidence. It is not the case that plaintiff was not aware of requirement of producing the original documents. Original Power of Attorney in favour of PW1 was placed on the record. Original of document Ex.CW-1/F was also produced, seen and returned. However, it was not so done for other documents. During examination in chief of defendant/DW6, ld. counsel for defendant also took same objections against mode of proof of documents as tendered by DW6.
20. In the case of R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P. Temple, 2003 (8) SCC 752, Hon'ble Supreme Court while dealing with similar situation, made following observations: -
"However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 14 of 25 Patiala House Court, New Delhi inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 15 of 25 Patiala House Court, New Delhi
21. In the case of Sudir Engineering Company vs Nitco Roadways Ltd., 1995 (34) DRJ 86, once again dealing with the aspect of marking a document Hon'ble High Court of Delhi made following observations: -
"(13) Admission of a document in evidence is not to be confused with proof of a document.
(14) When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each line a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit. (15) The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the wintess when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit."
22. Thus, it was well conscious decision of the plaintiff not to produce original documents before the court. For want of any certificate u/s CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 16 of 25 Patiala House Court, New Delhi 65-B I.E. Act, the print of emails exhibited as Ex. CW-1/G also cannot be read in evidence.
23. Ex. CW-1/F was heavily relied upon by ld. counsel for plaintiff, to show acknowledgement of defendant for alleged due amount. However, defendant/DW-6 denied his signature on the same. He deposed that as per his feelings, the relevant letter head though pertained to his shop, but it was older than the year 2015. The question is that whether this document can be relied upon? PW-1 though deposed during his cross-examination that this document was given by defendant, but his signature was not there. According to him this document was given to Mr. Rasit Tibet in his presence. He was suggested that he was not present at the time of alleged execution of this document neither he was present nor it was given to Mr. Rasit Tibet. Once DW-6 had denied his signature on this document, then plaintiff was supposed to bring other evidence to establish that it was actually signed by defendant himself. From the affidavit of PW-1, I do not find a single fact so explained therein regarding execution of afore-said document. So just by saying that such document was executed in his presence, by PW-1 during his cross-examination, the burden was not sufficiently discharged by PW-1 or by plaintiff, in order to prove that this document was actually executed and signed by the defendant. In fact, affidavit of PW-1 is also silent in respect of details of the factual matrix leading to alleged contract of sale-purchase between the parties. On the basis of his affidavit, one cannot be sure if PW-1 was party to such negotiation and contract. After denial of signature by the defendant, CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 17 of 25 Patiala House Court, New Delhi plaintiff did not take any steps to examine any handwriting expert to establish signature of defendant on afore-said document. Hence, I cannot be guided by this document. In such situation, I do not find any document to establish that the books were actually bought against a purchase order placed by the defendant.
24. In view of my above findings, the conclusion would be that though defendant had received the books from the plaintiff, but same were not purchased by him. Hence, this issue is decided against the plaintiff and in favour of defendant.
Issue No.1: Whether the plaintiff is entitled to recovery of an amount of USD 58160 towards principal amount due along with pendente lite and future interest @15%? OPP
25. Onus to prove this issue was apparently on the plaintiff. Admittedly, the plaintiff has instituted its case through its authorized representative/Power of Attorney holder Mr. Naim Ahmed. PW-1 Naim Ahmed has proved his Apostil/Copy of Power of Attorney as Ex. CW-1/A. In the examination, ld. counsel for the defendant objected to proving the same as the same was photocopy. Perusal of record reveals that original of Ex. CW-1/A was already placed along with the plaint. In the present case, the evidence was recorded before ld. Local Commissioner and at that time, the same document in original was not before ld. Local Commissioner. Thus, this objection does not exist.
26. During the course of arguments, ld. counsel for the defendant raised objection and submitted that PW-1 was not authorized person in the CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 18 of 25 Patiala House Court, New Delhi present case. It was argued that the Power of Attorney was not issued specifically for filing this suit for recovery of particular amount mentioned therein, but it bears that it is for constitutional courts, councils, European Courts, Indian Courts etc. To substantiate his arguments, ld. counsel for the defendant relied upon the judgment of Hon'ble High Court of Karnataka in case of Karnataka Workshop Ltd. Vs. Sh. Mahesh, bearing Crl. Appeal No. 2653 of 2008 decided on 27.09.2023.
27. Ld. counsel for the defendant also argued that Emre Tibet and Enis Tibet, who had allegedly executed the Power of Attorney in favour of the authorized representative namely Naim Ahmed, had not appeared before this Court for deposition and to prove the Power of Attorney. The certificate of incorporation of the company had never been placed on record. No board resolution, minutes of meeting, articles of Association of the company authorizing the above stated two persons to issue and to execute any Power of Attorney in favour of any person for filing this suit was produced. In support of this submission, ld. counsel for the defendant also relied upon judgment of Lucas Indian Services Vs. Sanjay Kumar , decided on 25.08.2010 in RF No. 616/2003 and State bank of Travancore Vs. Kingston Computers Pvt. Ltd. 2011 AIR SCW 1948.
28. On the contrary, ld. Counsel for the plaintiff argued that plaintiff instituted its case through its authorized representative/Power of Attorney holder Mr. Naim Ahmed, who proved his Apostil Copy of Power of Attorney as Ex. CW-1/A. CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 19 of 25 Patiala House Court, New Delhi
29. Perusal of Ex. CW-1/A shows that originally it was created in Turkish language, which was translated in English and attested by Notary and apostiled. Perusal of this document shows that it contains three pages in Turkish language and has two translated pages i.e. Power of Attorney, which was issued by EMRE TIBET and ENIS TIBET. The said Power of Attorney was translated from Turkish to English by Translator M. Qzan Mete and the said document was notarized by HULYA UYSAL, Chief Clerk, On behalf of KODIKOY 17, NOTARY. The next paper is certificate issued by HULYA UYSAL certifying the signatures of EMRE TIBET and ENIT TIBET, both as Attorney on behalf of TASARIM YAYIN GRUBU SANAYI VE TICARET LIMITED SIRKETI. It is the case of the plaintiff that the plaintiff is a juristic person a company under local laws of Turkey.
30. Hon'ble Delhi High Court, in Lucas Indian Services Vs. Sanjay Kumar Agarwal (Supra) held as under: -
"12. Coming back to the facts of the present case, the appellant has placed on record certified true copy of the Board Resolution wherein authority was given to Mr. S. Ramanathan, Financial Controller, to institute legal proceedings on behalf of the company with further authority to authorize and nominate and appoint any other Officer of the company to do all such acts and deeds on behalf of the Company. Based on the said resolution Mr. S. Ramanathan, had given the authority to Mr. K.K. Sen vide authority letter dated 26.5.2000. It is an admitted fact between the parties that the said Board Resolution was not proved on record and even Mr. S. Ramanathan also did not enter the witness box to prove the said authority letter dated 26.5.2000 proved on record as Ex. PW- 2/1. It is also an CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 20 of 25 Patiala House Court, New Delhi admitted fact that Mr. K.K. Sen has signed, filed and verified the plaint on behalf of the appellant company. The appellant herein is a private company and is not a public body or corporation as it was in the case of Naresh Kumar (Supra). It is also not the case of the appellant that Mr. K.K. Sen was one of the principal officers of the appellant company in terms of Order 29 Rule 1 CPC. Admittedly Mr. S. Ramanathan derived his authority to nominate an officer of the company under the Board Resolution dated 29.11.1994. The question therefore arises is that once the appellant failed to prove the said Board Resolution in favour of Mr. S. Ramanathan then how the authority of Mr. S.Ramanathan to appoint further officer could be established. No explanation has come forth from the appellant as to why Mr. S. Ramanathan himself was not produced in the evidence as he being the principal officer of the company could validly prove not only his own authority but the said authority conferred by him in favour of Mr. K.K. Sen. At no stage of the trial, the appellant company also took any steps to rectify the said defect and even at the appellate stage as well no such request has been made in this regard.
13. K.K. Sen PW 1 in his deposition deposed that the Board of Directors of the appellant company vide the resolution passed in November, 1994 had authorized Mr. S. Ramanathan, General Manager (Finance) to file any legal case on behalf of the company and the said resolution also empowered him to delegate his power to any other officer. PW- 1 further deposed that vide letter dated 26.05.2000 Mr. S. Ramanathan authorized him to file the said case against the respondent. It is thus quite manifest that once the appellant failed to prove the said resolution of the Board of Directors in favour of Mr. S. Ramanathan, the said authority letter dated 26.05.2000 executed by Mr. S. Ramanathan deriving his authority under the of Resolution of the Board is of no consequence. The said authority letter could be held valid and legal only when the Board Resolution was proved on record. PW- 1 K.K. Sen further does not claim that he was the principal officer of the CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 21 of 25 Patiala House Court, New Delhi company and therefore in that capacity he was competent to sign and file the plaint and therefore the provision of Order XXIX Rule 1 CPC does not come to his rescue. Even the said authority letter alleged to be executed by Mr. S. Ramanathan does not give any power to Mr. K.K. Sen to institute the said suit on behalf of the company.
14. The facts of the present case are more near to the facts of the case of Nibro Ltd. (Supra). Here it would be useful to refer to paras 30 & 31 of the said judgment as under:-
"30. The plaintiff has not placed on record any resolution passed by the company authorising Shri G. Jhajharia to institute the suit. Shri G. Jhajharia did not come forward to make a statement that he was in a position to depose to the facts of the case. In the plaint signed by him, he claims to be a principal officer and director, but there is no evidence on record to indicate that he had the authority to institute the suit. The memorandum and articles of association of the plaintiff company are also not placed on record. Even after the suit was instituted by Shri G. Jhajharia, no resolution was passed by the company ratifying this action. No such decision of the board of directors is placed on record in the present case. The plaintiff has examined Shri Ashok Kumar Jhajharia. He has placed on record, exhibit PW-2/1, which is the resolution of the board of directors reappointing Shri8i G. Jhajharia as the director but this resolution does not empower Shri G. Jhajharia as a director to institute the present suit. Shri Ashok Kumar Jhajharia has stated that he was handling the day-to- day management of the plaintiff company including the insurance part of it. He, however, does not state that Mr. G. Jhajharia was handling the day-to-day management or was in charge of the insurance claim.
CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 22 of 25 Patiala House Court, New Delhi
31. Thus, there is no evidence to prove that Shri G. Jhajharia had the authority to institute the present suit."
In the facts of the present case, the Resolution of the Board empowering Mr. S. Ramanathan (Financial Controller) was not proved on record. Mr. S. Ramanathan himself did not enter the witness box to prove the said authority letter issued by him in favour of Mr. K.K. Sen. Mr. K.K. Sen admittedly was not the principal officer of the appellant company. Further as per the certificate issued by Mr. S. Ramanathan in his favour no authority was given to him to institute the said suit. Taking into consideration all these facts this court is of the considered view that Ld. Trial Court has rightly and correctly decided the issue No.2 in favour of the respondent and against the appellant."
31. In the present case, plaintiff pleaded that it had filed the instant suit through its authorized representative/Power of Attorney dated 4 th May 2018 & Apostil in favour of Mr. Naim Ahmed. Admittedly Mr. Naim Ahmed was not the principal officer of the plaintiff company, but during his cross-examination, PW-1 stated that he was involved in the transaction since very beginning and had personal knowledge about the business transaction involved in this case. The Power of Attorney/Apostil bears a certificate to the effect that Emre Tibet and Enis Tibet were authorized to represent the plaintiff company. It further mentions that Naim Ahmed was authorized solely to represent the plaintiff company according to Indian Laws and regulations, and he was also authorized to file lawsuit. In view of such contents, there is no doubt that this Power of Attorney was executed by authorized persons in favour of PW1 and that vide this CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 23 of 25 Patiala House Court, New Delhi document PW1 had the authority to file present suit. Since, PW1 claimed that he was aware of the facts of this case, therefore, he was a competent witness to give his evidence. It will be different matter as to how much credence is given to testimony of PW1. Therefore, I do not find any merit in such objections of defendant. This Power of Attorney was notorised hence, there is presumption in favor of due execution of the same. The case laws relied upon by the defendant do not apply to the facts of this case.
32. So far as the entitlement of plaintiff for recovery of alleged amount is concerned, there is no dispute between the parties that the books were received by the defendant from the plaintiff. Even the total number of books is admitted fact. However, entitlement of plaintiff for alleged amount depended upon the terms and condition of contract with defendant. Ld. counsel for plaintiff emphasized upon admission of the defendant regarding having made payments to plaintiff to the tune of 30% of total amount against his claim of having sold only 10% of the books. This argument is impressive, but fact remains that defendant has also taken plea that he had to pay, after sale of books and rest of the books were liable to be returned. Defendant also took plea that he made advance payments out of good and long-standing relations and under hope of further sale of the books. In my opinion, mere payments made by defendant to the plaintiff cannot be sufficient to say that defendant was obliged to keep all the books and pay their total price to the plaintiff. Defendant has taken plea that he had been ready to return the books but plaintiff was not agreeable to the same. In such circumstances, CS 622/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 24 of 25 Patiala House Court, New Delhi in absence of evidence to show that it was a purchase transaction between the parties, liability of unsold books cannot be fastened upon the defendant. In order to reach this conclusion, I do not have to read contents of any of the documents tendered in evidence by the defendant or his witnesses. As already observed herein-above, it was for the plaintiff to prove the facts asserted by it. Unfortunately, plaintiff failed to do so. Issue no.1 is accordingly decided against the plaintiff and in favour of the defendant.
RELIEF:
33. In view of the above observations, discussion and findings, the suit for recovery is dismissed. However, plaintiff shall be entitled to take back the remaining books, after adjustment of the payments made to it. Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Digitally signed by PULASTYA PULASTYA PRAMACHALA
PRAMACHALA Date: 2025.08.28
13:16:01 +0530
Pronounced in the (PULASTYA PRAMACHALA)
Open Court on this District Judge (Commercial Court)-01,
28th day of August, 2025 Patiala House Court, New Delhi
CS 622/2018 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page 25 of 25 Patiala House Court, New Delhi