Delhi District Court
M/S Bhartiya Dhoop Karyalya Pvt. Ltd vs Sh. Prakash Keserwani on 8 March, 2018
IN THE COURT OF SH. M.P. SINGH, ADDITIONAL DISTRICT
JUDGE-03: CENTRAL: TIS HAZARI DELHI
RCA No. 18/17
New RCA No. 262/17
M/s Bhartiya Dhoop Karyalya Pvt. Ltd.
Through Sh. Vishal Keservani (Director)
Regd. Office at 409, Katra Maidgran,
Khari Bowli, Delhi - 92 ......Appellant
Versus
Sh. Prakash Keserwani
M/s YES AGENCIES
Shanker Market, Cinema Road,
Paltan Bazar, Pratapgarh, UP. ......Respondent
Appeal filed on - 16.12.2017
Arguments heard on - 07.03.2018
Judgment pronounced on - 08.03.2018
JUDGMENT
1. Plaintiff is in appeal before this Court against judgment and decree dt. 07.11.2017 of Ld. Civil Judge, Tis Hazari Courts whereby and whereunder its suit was dismissed. Parties shall be referred to, in this judgment, as per their ranks in the suit.
RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 1 of 92. Facts are as follows. Plaintiff company filed the suit for recovery of money for supply of goods through its director Mr. Vishal Keserwani against the defendant. Both plaintiff and defendant were engaged in the business of incense sticks, dhoop and allied products. Defendant contacted the plaintiff at its registered office at Delhi and evinced an interest to do business with the latter. Pursuant thereto, defendant commenced business with the plaintiff and placed orders with it from time to time. According to the plaintiff, as per its ledger statement of account, an amount of Rs.1,19,050/- is unsettled/due against the defendant as on 22.08.2016. Despite plaintiff's repeated requests, the said amount remained unpaid. Its legal notice dt. 27.08.2016 to the defendant too was of no avail.
3. Before the Ld. Trial Court defendant suffered the proceedings ex parte vide Order dt. 16.03.2017.
4. Plaintiff in its evidence before the Ld. Trial Court examined its director Mr. Vishal Keserwani as PW1 on 29.05.2017. He exhibited the following documents on record. (a) Extracts of the ledger account as Ex. PW1/A (Colly), (b) Legal notice dt. 27.08.2016 as Ex. PW1/B, and (c) Speed post receipt as Ex. PW1/C.
5. Ld. Trial Court dismissed the suit on the following grounds: - (a) At the time when the electronically generated ledger statement of account Ex. PW1/A (colly) was filed, it was not accompanied by the certificate under RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 2 of 9 section 65B, Evidence Act. Such a certificate came to be filed subsequently on 14.10.2017. Evidence by way of affidavit of PW1 made no mention of the certificate under section 65B, Evidence Act. And as such, the certificate filed subsequently could not be read in evidence. (b) One computer generated invoice in defendant's name was not supported by certificate under section 65B, Evidence Act when it was initially filed. This invoice did not bear defendant's signature. (c) No legal sanctity can be attached to private extracts of account books in the absence of production of original account books before the Court in view of the ratio decidendi of Ishwar Das Jain Vs. Sohan Lal, AIR 2000 SC 426. (d) Mere entries in the statement of accounts are not enough to fasten a person with liability in view of section 34, Evidence Act and Apex Court decision in CBI Vs. V. C. Shukla, (1998) 3 SCC 410. (e) Several consignor's copies together with three separate invoices cannot be read in evidence as the same find no mention in the evidence by way affidavit of PW1 and as such they are not proved. The consignor's copies do not bear defendant's signature, as such it is not proved that defendant had received the goods as per the invoices annexed to each of the consignor's copies. Further, these invoices are again not supported by any certificate section 65B, Evidence Act.
6. Notice of the present appeal was issued to the defendant. As per the RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 3 of 9 postal tracking report he was served with the notice of this appeal on 05.02.2018. He, however, did not appear before this Court.
7. Arguments heard. Record perused.
8. Having heard the submissions and perused the record of the case, this Court is of the view that the present appeal deserves to be allowed.
9. The question as to what would be the effect of reliance upon a com- puter generated statement of accounts sans a certificate under section 65B, Evidence Act in trial proceedings where the defendant is ex parte came to be considered by Delhi High Court in State Bank of India vs. Rajesh Singh, RFA no. 914/2016, date of decision - 16.11.2017. It was observed:
"5. In my opinion, trial court has erred in dismissing the suit on the ground of non-certification of the statement of account un- der Section 65-B of the Indian Evidence Act inasmuch as an ob- jection as to mode of proof of a document, unless the same is taken, the same is deemed to be waived in view of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752. The respondent/defendant being ex- parte, the deposition of the appellant/plaintiff's witness was not challenged as regards the mode of proof of the statement of ac- count as Ex.PW1/7. Once that is so, trial court could not have held that the statement of account could not be looked into be- cause of Section 65-B of the Indian Evidence Act as mode of proof of statement of account was not as per law viz. Section 65- B of the Indian Evidence Act."RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 4 of 9
10. Reference in this regard can be had to another judgment of Delhi High Court tiled as Sidharth Kumar vs. Alok Kumar, MANU/DE/2679/2017. This was a case for recovery of money for supply of computer peripherals and the defendant therein contested the case. The issue was whether the statement of account/bills sans the requisite certificate under section 65B, Evidence Act could be relied upon. Delhi High Court observed:
"7. For the purpose of disposal of this RSA the following substantial question of law is framed:-
"Whether the judgment of the first appellate court is not grossly illegal and perverse, inasmuch as, the objection un- der Section 65B of the Indian Evidence Act was not avail- able to the respondent/defendant because objection was not taken before commencement of cross-examination and therefore such objection as to the mode of proof of state- ment of account and the bills stood waived in view of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752?"
8. The aforesaid question of law has to be answered in favour of the appellant/plaintiff and against the respondent/defendant, inas- much as, it is seen that as per the ratio of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder (supra) the objection as to mode of proof of document can always be waived if the objection is not taken up at the relevant time. Since in the present case appellant/plaintiff had filed his affidavit by way of evidence and thus proved the bills and the statement of account, the respondent/defendant had to object to the proof of the RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 5 of 9 statement of account and bills before his commencement of cross- examination of PW-1, because, if this objection was taken then the appellant/plaintiff would have had an opportunity not to close his examination-in-chief and instead to lead additional evidence to prove the statement of account and the bills. Therefore, apply- ing the ratio of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder (supra), it is held that the first appellate court has erred in placing reliance upon Section 65B of the Indian Evidence Act and for dismissing the suit on this sole ground.
9. I have already given in para 5 above the reasons and conclu- sions of the trial court, and I completely agree with and adopt the same. In fact, I would further add that besides the respondent/de- fendant not having filed his statement of account, it is noticed that the respondent/defendant did not file his income tax returns and if the same would have been done from the Profit and Loss Account attached to the income tax returns it could have been seen as to whether the statement of account existed in the books of the ap- pellant/plaintiff. The entry in the Profit and Loss Account of the respondent/defendant would also have shown the amount due to the appellant/plaintiff from the respondent/defendant. Adverse in- ference therefore under Section 114 of the Indian Evidence Act had to be drawn against the respondent/defendant for not filing not only of his statement of account, but also not filing his income tax returns."
11. In view of the above, the reasoning of Ld. Trial Court that the ledger statement of account Ex. PW1/A (colly) and the invoices, sans the requisite certificate under section 65B, Evidence Act, were not duly proved cannot be sustained. It bears repetition to state that the defendant suffered the proceedings ex parte before Ld. Trial Court. As such there RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 6 of 9 was never any objection as to mode of proof of document(s). And in view of the ratio decidendi of R.V.E. Venkatachala Gounder (supra) such an objection having not been taken, it is deemed to have been waived. In this view of the matter, the reasoning that the certificate under section 65B, Evidence Act found no mention in the evidence by way of affidavit of PW1 too cannot be sustained. Whether or not such a certificate found a mention in the evidence of PW1 is thus of no consequence in view of the ratio decidendi of R.V.E. Venkatachala Gounder (supra). Not only this, before the Ld. Trial Court the plaintiff did in fact file the certificate under section 65B, Evidence Act, albeit at a belated stage. It would be too technical a view to take that since the certificate under section 65B, Evidence Act was not filed together with the electronically generated documents the same was therefore of no consequence. Further, in view of this, the observations of Ld. Trial Court that no legal sanctity can be attached to private extracts of account books in the absence of production of original account books too cannot be sustained. Defendant being ex parte never objected to the mode of proof of the statement of ledger accounts Ex. PW1/A (colly).
12. Next, in the case at hand, the plaintiff was not relying on mere entries in the statement of accounts. Plaintiff was also relying on the deposition of PW1 that remained unchallenged, unrebutted and RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 7 of 9 trammeled. The unchallenged deposition of PW1 is to the effect is that vis-à-vis supply of goods by the plaintiff an amount of Rs. 1,19,050 is due and outstanding against the defendant as on 22.08.2016.
13. Ld. Trial Court was also of the view that consignor's copies did not bear defendant's signature and as such it was not proved that defendant had received the goods as per the invoices annexed to each of the consignor's copies; that consignor's copies and the invoices found no mention in the evidence by way affidavit of PW1 and that a computer generated invoice contained no signature of the defendant. These observations too cannot be sustained. The issue whether the goods were in fact supplied to the defendant never stood controverted. Defendant never turned up to say that he had not received the goods. The unchallenged deposition of PW1 is that towards supply of goods an amount of Rs. 1,19,050 is due and outstanding against the defendant as on 22.08.2016.
14. This Court finds merit in this appeal. The appeal stands allowed. Judgment and decree dt. 07.11.2017 of Ld. Trial Court is reversed. Suit of the plaintiff, who is the appellant before this Court, is decreed in the sum of Rs. 1,19,050/- against the defendant, who is the respondent herein. Since the transaction was a commercial one, plaintiff is awarded pendente lite and future interest at the rate of 12% per annum on the principal amount of Rs. 1,19,050/-. Costs throughout is also awarded to the RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 8 of 9 plaintiff. Decree sheet be drawn up.
15. In view of the above, plaintiff's application under Order XLI Rule 27 read with section 151 CPC is rendered infructuous.
16. Trial Court record be sent back together with a copy of this judgment. Appeal file be consigned to record room.
Digitally signedMURARI by MURARI PRASAD SINGH ANNOUNCED IN THE OPEN PRASAD Date: COURT ON 08.03.2018 SINGH 2018.03.08 16:12:58 +0530 (M. P. SINGH) ADJ-3 (CENTRAL) TIS HAZARI COURTS DELHI/08.03.2018 RCA No. 18/17 M/s Bhartiya Dhoop Karyalya Pvt. Ltd. vs. Prakash Keserwani Page 9 of 9