Delhi District Court
Vijay Kumar Singhal Proprietor Ofm/S ... vs Kapil Gupta Proprietor Of M/S Kapil ... on 28 January, 2025
IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 535/2022
CNR No. DLSH01-01-006192-2022
VIJAY KUMAR SINGHAL
Proprietor of M/s Haryana Enterprises,
Office at IX-1300, Gali Bhature Wali,
Bagichi Nand Kishore, New Ashok Market,
Gandhi Nagar, Delhi-110 031.
Mobile no. 9868641308
E-mail: [email protected]
......Plaintiff
Versus
KAPIL GUPTA
Proprietor of M/s Kapil Traders
Office at : Kund Kund Complex 1,
Bala Bai K Bazar Lashkar,
Gwalior, Madhya Pradesh-474001.
Also at :
F-17, Nazarbagh Market, Lashkar,
Gwalior, Madhya Pradesh-474001.
Phone: 6261573315, 6263939330 & 9907878555
......Defendant
Date of filing : 19.09.2022
Date of final arguments : 14.01.2025
Date of Judgment : 28.01.2025
JUDGMENT
1. The present commercial suit for recovery of a sum of Rs.3,66,309/-, alongwith pendentelite and future interest @12% per annum, has been filed, on behalf of the plaintiff, wherein, it is stated that the plaintiff is engaged in the business of readymade Digitally signed by BRIJESH BRIJESH KUMAR KUMAR GARG Date: 2025.01.28 GARG 15:41:35 +0530 CS(Comm.) 535/2022 page 1 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi garments, like men's wear, jeans and pants, and the defendant is also indulged in the same business and in the month of August, 2018, the defendant approached the plaintiff and placed orders for purchase of cloths, on credit basis.
2. It is further stated in the plaint that seeing the good reputation of the defendant in the market, the plaintiff supplied/delivered the goods, i.e., pants/trousers to the defendant, on credit basis, during the period w.e.f. 14.08.2018 to 17.10.2020, worth a total amount of Rs.14,22,814/-. The said goods were duly received by the defendant and out of the aforesaid total amount, he paid a sum of Rs.10,56,505/- and sought some time to clear the remaining amount of Rs.3,66,309/-.
3. It is further stated in the plaint that in the month of March, 2020, there was complete lock-down, due to spread of 'Covid-19' pandemic, and therefore, the plaintiff could not approach the defendant for clearance of the aforesaid due amount. It is further stated that the plaintiff had requested the defendant for clearance of the due amount on various occasions. But, the defendant had failed to pay the due amount and has also failed to give any satisfactory reply to the plaintiff.
4. It is further stated in the plaint that having no other alternative, the plaintiff sent a legal demand notice, dated 02.05.2022, whereby, the defendant was called upon to clear the bill amount. But, no payment was made by the defendant despite service of the legal notice. The said legal notice was not even replied by the defendant.
BRIJESH Digitally
by BRIJESH
signed
KUMAR KUMAR GARG
Date: 2025.01.28
GARG 15:41:44 +0530
CS(Comm.) 535/2022 page 2 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
5. It is further stated in the plaint that on 10.06.2022, the plaintiff applied for pre-institution mediation, before District Legal Services Authority, Shahdara. But, despite service of notices, the defendant had failed to appear and provide consent for participation in pre-institution mediation, and therefore, a Non-Starter Report was issued by the DLSA, Shahdara, on 25.07.2022. It has been prayed that the suit of the plaintiff may be decreed for a sum of Rs.3,66,309/-, alongwith pendentelite and future interest @12% per annum.
6. After filing of the present suit, the summons of the suit for settlement of issues were duly served upon the defendant, and in compliance, the defendant filed his written statement on 02.01.2023, wherein, it was mentioned that the plaintiff has filed the present suit with malafide intention, by misrepresenting the material facts. It is further stated that no cause of action exists in favour of the plaintiff, and therefore, the suit of the plaintiff may be dismissed.
7. It is further stated in the written statement that the plaintiff has no locus-standi to file the present suit and has no right to claim the relief as sought in the plaint. It has been admitted in the written statement that the defendant was involved in the business dealings with the plaintiff, since the year 2018. It is alleged that the plaintiff has fabricated the bills no.600, 977, 983 and 1663, amounting to a total amount of Rs.2,32,816/-. It is further stated that the defendant has never received any goods against the aforesaid four fabricated bills.
BRIJESH Digitally
by BRIJESH
signed
KUMAR KUMAR GARG
Date: 2025.01.28
GARG 15:41:52 +0530
CS(Comm.) 535/2022 page 3 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
8. It is further stated in the written statement that the defendant has paid a further amount of Rs.58,695/-, through NEFT, from the account of the wife of his brother, on 23.12.2018, and has paid a total amount of Rs.11,73,895/-, till date, and only an amount of Rs.16,103/- is due against the defendant, which the defendant was ready to pay. It is further stated that the defendant was always ready to make the payment and the plaintiff has never showed any interest to receive the same. It has been prayed that the suit of the plaintiff, be therefore, dismissed with exemplary costs.
9. Replication to the written statement of the defendant was also filed, on behalf of the plaintiff, wherein, the plaintiff has denied the contents of the written statement and has reiterated and reaffirmed the contents of the plaint, as correct. It is prayed that the defendant is not entitled to claim any relief in the present suit.
10. After completion of pleadings, First case management hearing was conducted, on 01.04.2023, and from the pleadings of the parties, the following issues were framed as under :
1. Whether the plaintiff is entitled to claim/ recover an amount of Rs.3,66,309/- from the defendant, as claimed in the plaint ? OPP
2. Whether the plaintiff is entitled to claim interest from the defendant? If so, at what rate and for which period ? OPP
3. Relief.Digitally signed
BRIJESH by BRIJESH KUMAR GARG KUMAR Date:
2025.01.28 GARG 15:42:00 +0530 CS(Comm.) 535/2022 page 4 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
11. During the trial, the plaintiff has examined himself as PW-1. Whereas, the defendant has examined himself as DW-1.
12. After completion of trial, final arguments were addressed by Sh. Ankit Gupta, Advocate, for the plaintiff and Sh. Gajender Singh and Sh. Shan Meena, Advocates, for the defendant, on 14.01.2025.
13. During the course of final arguments, the Ld. Counsel for the plaintiff has argued that the plaintiff has proved his case by proving the various documents on record. He has further argued that the defendant has admitted his business dealings with the plaintiff in the year 2018 and has failed to lead any evidence in rebuttal to the contentions of the plaintiff. Therefore, the suit of the plaintiff may be decreed with interest. The Ld. Counsel for the plaintiff has also filed his written arguments, alongwith some judgments, and has relied upon the following judgments, in support of his contentions :
(i) 'Union of India vs. Ravindra V. Desai', reported as, '(2018) 16 SCC 273';
(ii) 'Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors.', reported as, '(2020) 7 Supreme Court Cases 1';
(iii) 'Antar Singh Parihar vs. State of M.P. and Ors.', reported as, 'MANU/MP/0148/2015'; and
(iv) 'KBT Plastics Pvt. Ltd. vs. Rajender Singh' passed by the Hon'ble High Court of Delhi, in W.P. (C) 12072/2019, dated 01.10.2021'.
14. On the other hand, the Ld. Counsel for the defendant has argued that the plaintiff has failed to prove the delivery of goods to the defendant against the forged and fabricated invoices. He BRIJESH Digitally signed by BRIJESH KUMAR KUMAR GARG Date: 2025.01.28 CS(Comm.) 535/2022 page 5 of 11 GARG D.J.(Commercial Court)-01/Shahdara/KKD/Delhi 15:42:11 +0530 has further argued that the plaintiff has failed to place any eway bill, on record, and has also failed to file his GST returns to prove the delivery of goods to the defendant. However, he has admitted that there is no documents on record, to prove the payments made by the defendant to the plaintiff. He has prayed that in the absence of proof of delivery of goods, the suit of the plaintiff may be dismissed. The Ld. Counsel for the defendant has relied upon the following judgments, in support of his contentions :
(i) 'Chandra Shashi vs. Anil Kumar Verma', reported as, '1994 Legal Eagle (SC) 1033';
(ii) 'Ajay Mitra vs. State of M.P. and Others', reported as, '(2003) 3 Supreme Court Cases 11'; and
(iii) 'Anand Road Carriers vs. Thakur Transport', reported as, 'II (2006) CPJ 171 (NC)'.
15. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also perused the written arguments filed on behalf of the plaintiff and the judgments cited by the Ld. Counsels for the parties. My findings on the various issues are as under:
Issues No. 1Whether the plaintiff is entitled to claim/ recover an amount of Rs.3,66,309/- from the defendant, as claimed in the plaint ? OPP
16. The burden to prove this issue lies on the plaintiff. In support of his contentions, the plaintiff has examined himself as PW-1. In his affidavit Ex.PW1/A, the plaintiff has reproduced Digitally signed by BRIJESH BRIJESH KUMAR KUMAR GARG Date: 2025.01.28 GARG 15:42:19 +0530 CS(Comm.) 535/2022 page 6 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi the entire facts of the case and has reiterated the contents of the plaint. In his affidavit, he has reiterated that he was having business dealings with the defendant and supplied the readymade garments to him, during the period w.e.f August 2018 to October 2020. It is further stated that out of the total amount of Rs.14,22,814/-, the defendant has paid only an amount of Rs.10,56,505/- It is further stated that as per the ledger account, an amount of Rs.3,66,309/- is due and payable by the defendant and despite service of the legal notice dated 02.05.2022, the defendant has failed to pay the said amount, till date. The various tax invoices for the period w.e.f. 14.08.2018 to 17.10.2020 have been proved on record as Ex.PW1/B1 to Ex.PW1/B21. The original transport receipts/GRs, regarding delivery of goods to the defendant, have been placed on record as Ex.PW1/C1 to Ex.PW1/C21. The ledger account has been proved on record as Ex.PW1/D collectively. The legal notice dated 02.05.2022 has been proved on record as Ex.PW1/E and its postal receipts have been proved on record as Ex.PW1/F1 to Ex.PW1/F4 and Ex.PW1/G1 to Ex.PW1/G4.
17. During the trial, the plaintiff was also subjected to a cross- examination on behalf of the defendant and in his cross- examination it is stated by the plaintiff that the transport company used to confirm him about the delivery of goods to the defendant. He has further stated that the defendant used to make the payments by cheque as well as by electronic modes. But, he has denied the suggestion of the Ld. Counsel for the defenant that a payment of Rs.58,695/- was made to him by Smt. Rashmi Gupta, the wife of the brother of the defendant, BRIJESH by electronic Digitally signed by BRIJESH KUMAR KUMAR GARG Date: 2025.01.28 GARG CS(Comm.) 535/2022 page 7 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi 15:42:29 +0530 modes, in his account on 23.10.2018. He has also denied the suggestion that the goods against invoice no.600 dated 14.10.2018, Ex.PW1/B4, invoice no. 977 dated 20.04.2019, Ex.PW1/B10, invoice no.983 dated 21.04.2019, Ex.PW1/B11 and invoice no.1663 dated 17.10.2020, Ex.PW1/B21, were never received by the defendant. However, he has admitted that a total payment of Rs.10,56,505/- has been made by the defendant to the plaintiff, till date. He has denied the suggestion that the defendant has made a total payment of Rs.11,73,895/-, to him, till date.
18. During the trial, the defendant has taken the defence that the four tax invoices, Ex.PW1/B4, Ex.PW1/B10, Ex.PW1/B11 and Ex.PW1/B21 were forged and fabricated by the plaintiff and he had never received the goods against the said invoices. But, during the trial, the defendant has failed to establish on record that the aforesaid four tax invoices were the forged and fabricated documents. No evidence has been led by the defendant in this regard.
19. In support of his contentions, the defendant has examined himself as DW-1. He has filed his affidavit Ex.DW1/1, wherein, he has also reproduced the contents of his written statement and has again stated that the aforesaid four bills worth Rs.2,32,816/- were forged and fabricated by the plaintiff and the goods against the said invoices were never received by him. He has further stated that he has paid a total amount of Rs.11,73,895/- against the goods supplied and paid another sum of Rs.58,695/- from the bank account of the wife of his brother, on 23.10.2018. But, BRIJESH Digitally by BRIJESH signed KUMAR Date: 2025.01.28 KUMAR GARG GARG 15:42:36 +0530 CS(Comm.) 535/2022 page 8 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi during the trial, the defendant has failed to prove the said payment of Rs.58,695/- which he made by electronic mode, through NEFT. During the trial, the defendant has filed a photocopy of his bank account. But, the same could not be proved on record, in accordance with law.
20. During his cross-examination, the defendant has admitted that he received the goods worth only Rs.10-12 Lakhs. He has denied the suggestion that he had received the goods worth Rs.14,22,818/-. He has admitted that no objection was raised by him, at any point of time, in respect of aforesaid four bills Ex.PW1/B4, Ex.PW1/B10, Ex.PW1/B11 and Ex.PW1/B21. He has further stated that no claim was taken by him from the GST department in respect of the aforesaid four bills. But, during the trial, he has failed to produce his GST returns to substantiate these averments.
21. In the absence of any documentary evidence, in rebuttal to the contentions of the plaintiff, it cannot be said that the aforesaid four bills Ex.PW1/B4, Ex.PW1/B10, Ex.PW1/B11 and Ex.PW1/B21, were the forged and fabricated documents. The payment of Rs.58,695/-, by Smt. Rashmi Gupta, the wife of his brother also stands "NOT PROVED".
In these circumstances and above discussion, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.2 Whether the plaintiff is entitled to claim interest from the defendant? If so, at what rate and for which period? OPP Digitally signed BRIJESH by BRIJESH KUMAR GARG KUMAR Date:
GARG 2025.01.28
15:42:44 +0530
CS(Comm.) 535/2022 page 9 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi
22. The burden to prove this issue also lies on the plaintiff. The plaintiff has claimed the pendentelite and future interest, on the due amount of Rs.3,66,309/- @12% per annum. But, the claim of interest @12% appears to be highly excessive. Even the provisions of Section 34 of the CPC, provide the rate of interest only at a maximum of 6% per annum. But, as per the proviso to Section 34 CPC, the said rate of interest can exceed 6%, in case of commercial transactions.
23. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Mrs. Veena Jain vs. Sunil Sood', passed in, 'CS (OS) No.1177/2003', on 23.07.2012, as under :
"8. I am however not agreeable to grant the huge rate of 24% interest as claimed by the plaintiff. The Supreme Court in the recent chain of judgments reported as Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. v. G.Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3 Arb. LR 140 (SC) has mandated that Courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. In my opinion, plaintiff will be thus entitled to interest @ 9% per annum on the principal amount due of `27,84,947.50/-for the period prior to the filing of the suit i.e. from 10.5.2000 till the date of filing of the suit. Plaintiff will also be entitled to pendente lite and future interest till payment @ 9% per annum simple."
(emphasis supplied)
24. In these circumstances, I am of the considered opinion that the plaintiff is also entitled to claim pendetelite and future interest @9% per annum on the due amount of Rs.3,66,309/-, till its realization.
BRIJESH Digitally by BRIJESH signed KUMAR Date: 2025.01.28 KUMAR GARG GARG 15:42:52 +0530 CS(Comm.) 535/2022 page 10 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi This issue is decided accordingly, in favour of the plaintiff and against the defendant.
Relief
25. In view of my findings on the various issues, as discussed above, the suit of the plaintiff is hereby decreed, in his favour and against the defendant, and a money decree is passed for an amount of Rs.3,66,309/-, alongwith pendentelite and future interest @9% per annum, till its' realization.
26. The costs and expenses i.e. the fees of the Ld. counsel for the plaintiff, as provided under the High Court of Delhi, Rules, are also awarded in favour of the plaintiff and against the defendant.
It is ordered accordingly.
The decree sheet be prepared accordingly. File be consigned to record room, after due compliance.
Digitally signed
BRIJESH by BRIJESH
KUMAR GARG
Announced in the open Court KUMAR Date:
GARG 2025.01.28
on this 28th Day of January, 2025 15:43:00 +0530
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
CS(Comm.) 535/2022 page 11 of 11 D.J.(Commercial Court)-01/Shahdara/KKD/Delhi