Delhi District Court
Health Care At Home India Pvt Ltd vs Bala Pritam Medivac And Anr on 7 September, 2024
IN THE COURT OF SH.AJAY GUPTA
DISTRICT JUDGE (COMMERCIAL COURT)-05
TIS HAZARI COURTS, WEST: DELHI
CNR No. DLWT01-008676-2019
Case No. CS(COMM) No. 516/2019
M/s Health Care at Home India Pvt.Ltd.
Through its Authorized Representative
Sh Sukhvinder Singh
4th Floor, Punjabi Bhawan
10 rouse Avenue
New Delhi-110002
.....PLAINTIFF
Versus
1. Bala Pritam Medivac
Through its Partners
WZ-94, Gali no. 7
Virender Nagar, Near Janakpuri
Delhi-110058
2. Sh. Sanjay Singh
Partner
Bala Pritam Medivac
WZ-94, Gali no. 7
Virender Nagar, Near Janakpuri
Delhi-110058
....DEFENDANTS
Date of institution of case : 21.10.2019
Date of arguments : 09.08.2024
Date of Pronouncement of Judgment : 07.09.2024
JUDGMENT
PLAINTIFF'S CASE
1. Originally plaintiff filed the present suit u/o XXXVII CPC against the defendants for recovery of Case No. CS(COMM)/516/2019 Page No. 1 of 49 Rs.18,00,000/- (Rs.Eighteen lac only) alongwith pendentelite and future interest @ 18% p.a. and vide order dated 12.04.2022, the defendants were granted leave to defend the present case.
2. The plaintiff has inter-alia averred in the plaint that :-
(i) that plaintiff has instituted the present suit through their authorized representative Sh. Sukhvinder Singh, the Senior Finance Executive. Defendant no.2 (D2 in short) is the partner of Defendant no.1 (D1 in short).
Plaintiff is engaged in the business of providing para medical staff/attendants/technicians to patients at hospitals/their homes and also engaged in the business of supplying medical supplies like medicines, medical equipments and auxiliary medical products. Plaintiff had supplied to the defendants, the state-of-the-art medical equipments/products and medicines from time to time. In the year 2018, on the basis of purchase orders of defendants, plaintiff sold the goods through the following invoices:-
Details of Details of the Total Amount Outstanding the Sales Invoices of the Invoices amount of Order (in Rs.) Invoices (in Rs.) WO/ HCAH/ 8,36,976/- 7,82,600/-Delhi/ 2018/1735
NCR/ 2017-
18/01389 Case No. CS(COMM)/516/2019 Page No. 2 of 49 dated 31.01.2018 WO/ HCAH/ 10,17,400/- 10,17,400/- Delhi/ 2018/1912 NCR/ dated 2017- 28.02.2018 18/01579 dated 28.02.2018 TOTAL 18,54,376/- 18,00,000/-
(ii) that a sum of Rs.18,00,000/- (Rs.Eighteen lakh only) is still outstanding and yet to be paid by the defendants qua the aforesaid invoices. Despite request, defendants did not pay the aforesaid outstanding amount thus, plaintiff got issued the legal notice dated 18.02.2019 which was delivered to D-1 on 19.02.20219, however, neither defendants replied to the said notice nor paid the due amount. Thus, on the basis of these averments, plaintiff has prayed for a decree of Rs.18,00,000/- alongwith 18% pendentelite and future interest and cost of the suit.
DEFENDANT'S CASE
3. Defendants sought dismissal of the claim raised by the plaintiff on the basis of following averments:-
Preliminary Objections and submissions
(i) that the invoices on the basis of which plaintiff has filed the present suit are self serving documents. It is Case No. CS(COMM)/516/2019 Page No. 3 of 49 stated that no products as mentioned in these invoices have been supplied by plaintiff to the defendants and and proof of delivery qua the said goods has also not been filed by the plaintiff. These invoices are forged and invented documents and have been manufactured to substantiate the plaint. These invoices do not bear any acknowledgment or receipt of goods on behalf of the defendants. The defendants had received the goods of Rs. 48,42,033/- from the plaintiff and defendants have already made the payment of the said amount to the plaintiff, thus, there is no amount payable by the defendants to plaintiff.
(ii) that the document/letter dated 21.05.2018 regarding confirmation of balance for audit purpose is also a fabricated document. The said letter was never issued or signed by Mr. Manjeet Singh, the Partner of D1 and the signatures and stamp appearing on this letter are forged.
(iii) that plaintiff was a start up and suffered losses. Its officials committed bungling of the funds due to which plaintiff's losses increased manifold which fact can be evidenced from the FIR got registered by plaintiff against its own employee Mr. Harish Sharma. Thus, in order to save their own skin and to satisfy the management and the investors of the company, they Case No. CS(COMM)/516/2019 Page No. 4 of 49 have initiated various frivolous litigations against various customers/suppliers of plaintiff company including D1 on the basis of forged and fictitious invoices.
Reply on Merits
(iv) While replying on merits, the defendants have denied the claims and contentions of the plaintiff made in the plaint and reiterated the defence taken by them in the preliminary objections of their written statement. Thus, defendants sought dismissal of the claim of the plaintiff.
4. In rejoinder, plaintiff denied the averments and contentions made by defendants in their written statement and contents of the plaint have been reiterated and reaffirmed by the plaintiff.
5. On the basis of the pleadings of the parties following issues were framed on 04.01.2023:-
ISSUES
1. Whether plaintiff is entitled to recovery of Rs.18,00,000/-? (OPP)
2. Whether plaintiff is entitled to interest, if so, at what rate? (OPP) Case No. CS(COMM)/516/2019 Page No. 5 of 49
3. Relief PLAINTIFF'S EVIDENCE
6.1 After framing of issues, matter was fixed for plaintiff's evidence. Plaintiff has examined two witnesses i.e. its AR Sh. Sukhvinder Singh as PW1 and its auditor Sh.Rohit Arora, as PW2. PW1 filed his affidavit Ex.PW1/1 on the similar lines of the averments of the plaint. Besides, his affidavit (Ex.PW1/1), PW1 has tendered the following documents in his evidence:-
i) True copy of Board Resolution as Ex.PW1/2.
ii) Copy of invoices as Ex.PW1/3 and Ex.PW1/4.
iii) Print out of GSTR-1 form as Ex.PW1/5.
iv) Copy of letter dated 21.05.2018 as Mark-A (exhibited as Ex.PW1/6 in the affidavit but this document was de-exhibited).
v) Copy of Bank account statement as Ex.PW1/7.
vi) True copy of ledger statement of plaintiff as Ex.PW1/8.
vii) Affidavit u/s 65A & B of Indian Evidence Act (hereinafter referred as 65-A&B IEA) as Ex.PW1/9.
viii) Copy of legal notice and tracking report as Ex.PW1/10 (Colly.).
ix) Affidavit u/s 65B of Evidence Act for print out of tracking reports, invoices and statement of account as Ex.PW1/11.Case No. CS(COMM)/516/2019 Page No. 6 of 49
x) Affidavit u/s 65B of Evidence Act for the copy of letter dated 21.05.2018 as Ex.PW1/12.
(The mode of proof and admissibility of all these documents were objected to by the Ld. Defence counsel).
6.2 PW2 Sh. Rohit Arora was a summoned witness from Walker Chandiok & Co. (the statutory auditors of the plaintiff) to bring on record the document Mark 'A' purportedly containing debit balance acknowledgement issued by Sh Manjit Singh, the partner of D-1.
6.3 In their defence, defendants examined Sh Manjeet Singh, one of the partners of D-1 as DW1. In his affidavit Ex.DW1/a, DW1 has deposed on the similar lines of their defence taken in the WS.
7.1 I have heard the Ld. Counsel for the plaintiff as well as the Ld. Counsel for the defendants and gone through the record. In support of her contentions, Ld. Counsel for the plaintiff has relied upon the following case laws:-
(i) M.R. Pipes Pvt. Ltd. Vs. RCC ECO Build Systems Ltd., 2023 SCC OnLine Del 7909.
(ii) Union of India vs Sandeep Kumar and others (2019) 10 SCC 496.
(iii) Sudhir Engineering Company Vs. Nitco Roadways Ltd, Suit No. 765 of 1990.
(iv) Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal, (2020) 7 SCC, (Relevant Paras- 12-13, 32, 52, 59 and 73).Case No. CS(COMM)/516/2019 Page No. 7 of 49
(v) Aziz Amirali Ghensani and Another Vs. Ibrahim Currim & Sons and Others, 2022 SCC OnLine Bom 801, (Relevant Paras- 10-11 and 14-15).
(vi) Divine Messengers Versus Dr. Prerna Diwan, 2023 SCC OnLine Del 2562.
(vii) Eli Lilly and Company Vs. Maiden Pharmaceuticals Limited, CS(COMM) 1472/2016, (Relevant Para- 21)
(viii) Anil Rishi Vs. Gurbaksh Singh, (2006) 5 Supreme Court Cases 558, (Relevant Paras- 19 and
20).
(ix) Government of Goa Vs Maria Julieta D'Souza, Civil Appeal No. 722 of 2016, (Relevant para -7 and
8)
(x) Hindalco Industries Ltd. Vs. White Metals Inds.
Pvt.Ltd., 2017 SCC Online Del 11932, (Relevant Paras 26, 27 and 29).
7.2 Ld. Counsel for the defendant has relied upon the following case laws:-
(i) M/s K& K Health Care Pvt.ltd. Vs. M/s Pehachan Advertising, 2012 SCC Online Del 426
(ii) Rangammal Vs. Kuppuswami & Anr, (2011) 12 SCC 220
(iii) Pure Milk Products Pvt. Ltd. Vs. Ramsons, 2019 SCC Online Del 10981
(iv) Madholal Sindhu Vs. Asian Assurance Co.Ltd.and Others, 1945 SCC Online Bom 44
(v) Ramji Dayawala and Sons (P) Ltd. Vs. Invest Import (1981) 1 SCC 80 Case No. CS(COMM)/516/2019 Page No. 8 of 49
(vi) Narbada Devi Gupta Vs Birendra Kumar Jaiswal and Another (2003) 8 SCC 745
(vii) Kalyan Kumar Gogoi Vs Ashutosh Agnihotri and Anr (2011) 2 SCC 532
(viii) Harish Manusukhani Vs. Ashok Jain 2008 DHC: 3069-DB.
(ix) Pawan Kataria Vs. Ardeep Kumar Batta & Anr., 2016:DHC:6005
(x) M/s Malik Traders Vs. State of U.P. and Others, 2023: AHC: 201260
(xi) Relevant Online Article: What is e-invoicing, Website:; Medius.com
(xii) Relevant Rules: Central Goods and Service Tax (CGST) Rules, 2017, Part-A (Rules)
(xiii) Relevant Act: The Delhi Goods and Service Tax Act, 2017(Delhi Act 03 of 2017)
(xiv) Office Memorandum of Fake Invoicing dated 12.05.2019, F.No. GST/INV/FAKE INVOICES/18-19 Ministry of Finance, Department of Revenue
(xv) Edited letter dated may 21, 2018 for Demonstration purpose only".
7.3 Both the Ld. Counsels have filed their written submissions. I have gone through the same and my issue wise findings is as under:-
ISSUE NO.1 Whether the plaintiff is entitled to recovery of Rs.18,00,000/-? OPP Case No. CS(COMM)/516/2019 Page No. 9 of 49
8.1 It is undisputed that plaintiff company had been supplying the medical equipments/products and medicines to the defendants from time to time and there is a dispute between the parties only in regard to the balance payment of two invoices (Ex.PW1/3 and Ex.PW1/4). As per plaintiff, defendants have only made part payment qua the said invoices and a sum of Rs.18,00,000/- is due with respect to the said invoices while as per defendants, they had not purchased the goods against the said two invoices and they have already paid the entire amount qua the goods purchased by them from the plaintiff. Thus, the onus was on plaintiff to establish that it had sold and delivered the goods against the said two invoices also to the defendants and in order to discharge the said onus, plaintiff has examined aforesaid two witnesses but prior to analyzing the evidence of the plaintiff qua their claim of recovery, the objections raised by the Ld. Counsel for defendants in regard to the admissibility as well as proof of documents relied upon by the plaintiff is also required to be dealt with. In this regard, first document is the Board Resolution (Ex.PW1/2) by virtue of which PW1 has been authorized to institute the present suit and depose in this case.
BOARD RESOLUTION 8.2 Ld.Counsel for defendants submitted that the authority of PW1 (AR of plaintiff ) has not been proved in accordance with law as the relevant Board Resolution has not been brought on record on the basis of which PW1 has been Case No. CS(COMM)/516/2019 Page No. 10 of 49 authorized to file and prosecute the present case on behalf of plaintiff company. It seems from the perusal of Ex.PW1/2 that the contents of the Board Resolution passed by the Board of Directors of Plaintiff company in their meeting dated 22.01.2019 has been re-iterated in this authorization and the original Board Resolution has not been brought on record by the plaintiff. Thus, in order to prove the authority of PW1, the plaintiff ought to have brought on record the relevant Board Resolution, however, it seems that practically, defendant had waived off this objection as at the time of framing of issues, the issue regarding the proper authorization of PW1 was not requested to be framed. Notwithstanding, the plaintiff is required to prove authorization of PW1 in accordance with law. Thus, as far as the technical aspect of the authority of PW1 is concerned, it can be said that plaintiff has not proved the same in terms of the settled law. Thus, it is required to be seen whether the present suit has been filed by the plaintiff through a duly authorized person as specified u/o 29 rule 1 CPC. As per plaint, the present suit has been filed by the plaintiff through their authorized representative Sh. Sukhvinder Singh. The suit by a company can be filed through the persons specified u/o 29 rule 1 CPC. The provisions of Order 29 rule 1 CPC reads as under:-
"In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."Case No. CS(COMM)/516/2019 Page No. 11 of 49
8.3 So in view of the settled law, the suit by a company can be instituted either by any of the authorities of the company as specified in Order 29 Rule 1 CPC or by any other officer of the company who has been duly authorized by the board of directors in this regard. So the persons like Secretary, Director or Principal Officer can institute a suit by virtue of their position in the company even when there is no specific resolution in their favour, however, if the case is to be instituted through some other officers of the company, they are required to be specifically authorized to institute a suit on behalf of the company. Now, let us see as to whether the plaintiff company has established on record that Sh. Sukhvinder Singh is a duly authorized representative of the plaintiff company. In order to prove this fact, the plaintiff company has examined Sh. Sukhvinder Singh himself as PW1 and in order to prove his authority, he has relied upon the certified copy of the Board Resolution Ex.PW1/2 and as per PW1 he has been authorized by the plaintiff company vide aforesaid board resolution. In order to prove the said Board Resolution, PW1 was required to either file the original Board Resolution or to produce the original Board Resolution at the time of tendering Ex.PW1/2 in order to have this document placed on record (exhibited), however, PW1 did not produce the original Board Resolution and therefore, during his evidence, the tendering of this document was objected to by the Ld. Defence counsel. Thus, it is clear from these Case No. CS(COMM)/516/2019 Page No. 12 of 49 discussions that PW1 has failed to prove the Board Resolution by virtue of which he is stated to have been appointed as AR of the plaintiff company qua the present suit. Neither in the plaint nor in the affidavit it is stated that PW1 falls within the category of the officers specified in O 29 R1 CPC. As such, it is clear that neither plaintiff has proved that PW1 is one of the principal officers of the plaintiff nor that he has been duly authorized.
8.4 Though, PW1/AR of plaintiff could not prove his authority as per law, however, it is well settled law that case of a company should not be dismissed for such a technical reason. It is well settled law that in case, the matter has been pursued by the company concerned and contested the same to the hilt then under these circumstances, it has to be presumed that the company had duly authorized their AR who prosecuted the case on behalf of the company. In this regard, this Court is supported by the Judgement of Hon'ble Supreme Court titled as United Bank of India Vs. Naresh Kumar AIR 1997 SC 3 and Judgment of Hon'ble Delhi High Court titled as Pawan Kumar Dalmia Vs. HCL Infosystems Ltd. (RFA 180/2004). It is also clear from the record of the present case that the plaintiff company has contested the case through out and till the final stage and nothing contrary has come on record to show that plaintiff company had not authorized PW1 as their AR, thus, under these circumstances, it can be assumed Case No. CS(COMM)/516/2019 Page No. 13 of 49 that the plaintiff had authorized PW1 for prosecuting the present case and also to give evidence in the present case.
INVOICES - (Admissibility and Proof) 8.5 Now it is to be seen if plaintiff has brought on record the sufficient evidence to establish the transactions in regard to the invoices Ex.PW1/3 and Ex.PW/4. In his evidence, PW1 has deposed that plaintiff had sold the goods to D-1 through two invoices Ex.PW1/3 and Ex.PW1/4 also and accordingly, he tendered both these invoices in his evidence. Ld. Defence Counsel has raised similar objection qua these invoices as well. Firstly, on the aspect of proof, Ld. Defence Counsel submitted that since these invoices are E- invoices, therefore, in view of the Central Goods and Services Tax Rules 2017 (CGST), these invoices ought to have been digitally signed by the concerned official of the plaintiff and in terms of Rule 48 of the said invoices ought to have been prepared in triplicate (original for recipient, duplicate for transporter and triplicate for suppliers). As far as the nature of these invoices is concerned, it is clear from the perusal of the invoices that these invoices are not the E-invoices. Further, during cross examination, no question was asked from PW1 to assert the claim that these invoices are e-invoices. Thus, under these circumstances, the plaintiff was not required to follow the aforesaid CGST rules meant for preparation of E-invoices.
Case No. CS(COMM)/516/2019 Page No. 14 of 498.6 It was further submitted by the Ld. Defence counsel that the invoices Ex.PW1/3 and Ex.PW1/4 are admittedly not one of the copies which were required to be kept while preparing three copies and admittedly, these copies are the fresh printouts which have been taken just before filing of the present suit. Besides, Ld.Defence Counsel also stated that the authenticity of these invoices cannot be vouched for as it has nowhere been stated by the PW1 that the same software was maintained in the computer system from the time of the date of the invoice and till the time its fresh print out was taken. Besides, it was also submitted that these invoices are electronic evidence, thus, in order to prove the same, plaintiff ought to have filed the requisite certificate u/o 11 rule 6 CPC but instead PW1 has filed the certificate u/s 65-B of Indian Evidence Act (Ex.PW1/11) and the same also does not fulfill the requirements of a proper certificate as the requisite information as specified u/o 11 rule 6 CPC have also not been specified in the said certificate. Ld. Defence Counsel has referred to point no.5 of the certificate and stated that these invoices cannot be otherwise considered as PW1 has taken their print outs at the office of their Ld.Counsel. It was also submitted that this certificate is even otherwise not admissible as PW1 is not the official concerned who had prepared the invoices at the relevant time. As such, in order to further analyze the points raised by the Ld.Defence Counsel, the contents of composite certificate u/s 65-B of I.E. Act (Ex.PW1/11) which has been given by PW1 in regard to the Case No. CS(COMM)/516/2019 Page No. 15 of 49 tracking report of service of legal notice, invoices and statement of account are reproduced as under:-
"3. I am hereby also producing the copies of the Invoices and the redacted copy of Plaintiff's statement of accounts which are available with the Plaintiff and annexed hereto with the present Suit. I crave leave to refer to and reply upon at the time of hearing, if necessary.
4. I confirm that the contents of the hard copies of the Invoices and the statement of accounts are identical to the serials as seen on the computer.
5. Accordingly, I am making this present affidavit to certify that the hard copies of the tracking report, invoices and statement of accounts hereto are a true representation of the electronic record which was printed through the computers at my counsel's office and my office in the course of activities. I further state that the computer used by me was operating properly and there is no distortion in the accuracy of the contents of the hard copies of the tracking reports, invoices and statement of accounts."
8.7 As far as other matters are concerned, in order to prove the electronic evidence, a certificate u/s 65-B I.E. Act is required to be furnished, however, as far as Commercial matters are concerned, it is clear that in support of electronic evidence, the party concerned is required to furnish a certificate u/o 11 rule 6(3) CPC. The requirement of the certificate under this provision are as under:-
"Rule 6 sub-rule (3) states that where electronic records form part of documents disclosed, the Case No. CS(COMM)/516/2019 Page No. 16 of 49 declaration on oath to be filed by a party shall specify:-
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c)the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email Ids, details of ownership, custody and access to such email Ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
8.8 In this regard, Ld. Counsel for plaintiff submitted that in order to prove the electronic evidence either the certificate u/s 11 rule 6(3) CPC or the certificate u/s 65-B of Evidence Act can be filed as these can be used interchangeably. Thus, it was submitted that these invoices are admissible. In this regard, Ld. Counsel for plaintiff has relied Case No. CS(COMM)/516/2019 Page No. 17 of 49 upon the Judgment of Hon'ble Delhi High Court reported as Eli Lilly And Company & Anr. Vs. Maiden Pharmaceuticals Ltd. (DOD 09.11.2016, Suit No.CS/1472/2016). The relevant paras of the said Judgment are reproduced as under:-
"20. It thus but has to be held that the plaintiffs are entitled to file the certificate under Section 65-B of the Evidence Act, even subsequent to the filing of the electronic record in the Court. Order XI Rule 6 of CPC as applicable to commercial suits is also not found to provide to the contrary.
21. I may however add a word of caution. Such certificate/affidavit/s under Section 65-B of the Evidence Act and/or u/O XI Rule 6 of CPC, though can be filed subsequently also, as any other document may be, but only if the party wanting to file the same makes out a case for reception thereof, as for late filing of documents beyond the prescribed time. If the party so producing the said certificate/affidavit is unable to satisfy the Court as to the reasons for which the certificate/affidavit was not filed at the appropriate time, may run the risk of the certificate/affidavit being not permitted to be filed and resultantly the electronic record, even if filed at the appropriate time, remaining to be proved, to be read in evidence. Not only so, even if the delayed filing of the said certificate/affidavit is permitted by the Court, the party producing the same may run the risk of being not able to prove the said electronic record. It cannot be forgotten that the person in aposition to identify the electronic record and to give particulars of the device involved in the production of the electronic record and as to other matters prescribed in Section 65-B(2) and in Order XI Rule 6(3) of CPC may not be subsequently available or with frequent changes in technology the device involved in the production of electronic record may not be identifiable and the certificate/affidavit may not withstand the cross-Case No. CS(COMM)/516/2019 Page No. 18 of 49
examination by the opposing counsel on the said facts, leading to the electronic record being not read in evidence and the plea taken on the basis thereof remaining to be proved. Thus, merely because it has been held that the certificate/affidavit under Section 65-B and/or Order XI Rule 6 of CPC can be filed at a subsequent stage, does not mean that the parties to a litigation do not file such certificate/affidavit along with electronic record produced before the Court. The proof of the said certificate/affidavit, unlike other documents, will be much more stringent.
22. The plaintiffs have not filed any application setting out reasons for non-production of the documents filed for the first time alongwith the affidavit by way of examination-in-chief aforesaid. However since the parties/counsels proceeded to argue and I have considered the question, it is not deemed appropriate to defer the adjudication any further. The affidavit aforesaid under Sections 65-A and 65-B of the Evidence Act filed alongwith the affidavit by way of examination-in-chief is thus permitted to be taken on record. However, it will be open to the counsel for the defendant to cross examine the deponent of the said affidavit and the proof of the said affidavit under Sections 65-A and 65-B of the Evidence Act shall be subject to such cross-examination and if it is found that the deponent of the affidavit was not a competent person to issue the certificate/affidavit, needless to state, the electronic record tendered in evidence shall also not be read".
8.9 In the said commercial case (Elly Lilly), the Hon'ble Delhi High Court, while relying upon the Judgement of Hon'ble Supreme Court in Anwar P.V. Vs. P.K.Bashir case reported as (2014) 10 SCC 473, held that the certificate u/s 65B I.E. Act/order 11 rule 6 CPC can also be filed subsequent Case No. CS(COMM)/516/2019 Page No. 19 of 49 to the filing of the electronic evidence. Thus, it is clear from the afore discussed legal position that the plaintiff can either file a certificate u/o 11 rule 6 CPC or a certificate u/s 65-B of Evidence Act alongwith the suit as even if such a certificate u/o 11 rule 6 CPC has not been filed alongwith the suit yet in view of the settled law, a certificate u/s 65B IE Act can be filed subsequently and at the stage of evidence also. Thus, under these circumstances, the certificate u/s 65B of Evidence Act filed by plaintiff alongwith the suit can also be considered and read in support of the electronic record filed by the plaintiff. It is clear from the perusal of the certificate (Ex.PW1/11) filed by the plaintiff that it fulfills the requirements of a certificate u/s 65-B of Indian Evidence Act to a great extent, therefore, in view of the peculiar facts and circumstances of the present case (which have been discussed in detail in the further part of the Judgement), the certificate Ex.PW1/11 can be relied upon in support of the invoices Ex.PW1/3 and Ex.PW1/4.
8.10 As far as another objection (qua the aforesaid certificate) regarding taking of the printouts of the invoices by PW1 in the office of his Counsel is concerned, it further seems that there is not much substance in this objection as it is clear that PW1 has given a composite certificate qua the tracking report of service of legal notice as well as other documents (invoices and statement of accounts) and therefore, it prima facie gives an impression that the plaintiff had taken printouts of the invoices also at the office of their counsel, however, this Case No. CS(COMM)/516/2019 Page No. 20 of 49 confusion goes when para no.3, 4 and 5 of this certificate are read together. The collective perusal of these paras clearly show that the print out of the invoices and statement of accounts have been taken by PW1 at his office. The para 3 to 5 of Certificate u/s 65-B of Indian Evidence Act reads as under:-
"3. I am hereby also producing the copies of the invoices and the redacted copy of plaintiffs' statement of account which are available with the plaintiff and annexed hereto with the present suit. I crave leave to refer to and reply upon at the time of hearing, if necessary.
4. I confirm that the contents of the hard copies of the Invoices and the statement of accounts are identical to the serials as seen on the computer.
5. Accordingly, I am making this present affidavit to certify that the hard copies of the tracking report, Invoices and statement of accounts hereto are a true representation of the electronic record which was printed through the computers at my counsel's office and my office in the course of activities. I further state that the computer used by me was operating properly and there is no distortion in the accuracy of the contents of the hard copies of the tracking reports, Invoices and statement of accounts".
8.11 Ld. Counsel for defendant has taken another objection qua the invoices Ex.PW1/3 and Ex.PW1/4 that on the basis of evidence of PW1, the said invoices cannot be said to have been proved as admittedly, neither PW1 is personally aware regarding the transactions mentioned in these invoices nor these invoices were prepared by him and these invoices are only the printouts which were taken for the purpose of filing of the present suit. Ld. Counsel further submitted that admittedly, Case No. CS(COMM)/516/2019 Page No. 21 of 49 three copies of invoices were generated by the plaintiff and the aforesaid invoices are none of those three copies of invoices. Thus, now it is to be seen whether PW1 is a competent witness to bring on record these invoices or not. As per evidence of PW1, he is working with the plaintiff company as Assistant Manager (Finance) and no evidence to the contrary has come on record. Thus, the invoices which were generated and raised by one of the departments of the plaintiff company during the regular course of their business transactions with the defendants, can be certainly brought on record by PW1 who is none else but the Assistant Manager (Finance) in the plaintiff company and as already discussed, PW1 has taken the printout of these invoices from their system and then placed the same on record. Though, by merely bringing these invoices on record would not by itself prove the transactions mentioned in these invoices but these invoices can be surely brought on record by PW1 for the purpose of proving the fact that these invoices were generated by the plaintiff and these invoices are part of their office record. Thus, it is held that these invoices are admissible, therefore, same can be taken into consideration, however, in order to prove the transactions, plaintiff is required to bring on record the relevant evidence in this regard.
(vii) GST 8.12 In order to prove the transactions qua both these invoices, PW1 has further deposed that plaintiff had also paid Case No. CS(COMM)/516/2019 Page No. 22 of 49 the requisite GST on both these invoices and PW1 has tendered the GST payment certificate (Ex.PW1/5 colly.) qua these invoices. Ld. Defendant Counsel has raised the similar objection as to the proof and admissibility of the said certificates on the ground that these certificates have also not been supported by a proper certificate u/o 11 rule 6 CPC.
8.13 The aforesaid GST certificates are printouts stated to have been taken by PW1 and in support of the same, PW1 has filed the certificate u/s 65-A & B of I.E. Act in compliance of the provisions of Order 11 Rule 6 CPC (Ex.PW1/9). In order to analyse the certificate, the relevant contents of this certificate are required to be reproduced which reads as under:-
"DECLARATION BY WAY OF AN AFFIDAVIT OF MR SUKHVINDER SINGH ON BEHALF OF THE PLAINTIFF UNDER SECTION 65 A & B OF THE INDIAN EVIDENCE ACT, 1872 I, Sukhvinder Singh, son of Shri. Balvinder Singh, aged about 30 years, am the Authorized Signatory of Health Care at Home India Pvt. Ltd., having its registered office at 4th Floor, Punjabi Bhawan, 10 Rouse Avenue, New Delhi-110002, presently at Delhi, do hereby solemnly affirm and declare as under:
1. That I am the authorised representative of the Plaintiff Company in the present matter and as such being well conversant with the facts and circumstances of the case, I am competent to swear this affidavit .
2. I state that the copies of the following documents/electronic records are filed in along with the application.Case No. CS(COMM)/516/2019 Page No. 23 of 49
a. Print out of the GSTR-1 form from filing portal of the Plaintiff with regard to the Defendant for the invoice bearing numbers HCAH/2018/1735 dated 31.01.2018 and HCAH/2018/1912 dated 28.02.2018, as available on www.return.gst.gov.in.
b. Redacted true copies of the bank account statement of the Plaintiff from the period 01.04.2018 to 30.11.2018.
c. True copy of the ledger statement of the Plaintiff with regard to the Defendant No. 1 firm from the period 01.04.2017 to 31.01.2020
3. In compliance of the provision of Order XI Rule 6 of the Code of Civil Procedure, 1908 and 65 A & B of the Indian Evidence Act, 1872, which have been explained to me, I hereby state as follows:
a. I state that the said Records have been accessed on the official GST account of the Plaintiff Company which is solely accessible by the official representatives of the Plaintiff Company. b. I state that the abovesaid Records were printed out by me by accessing my abovementioned account on the GST portal as available from the respective source on a computer which is accessed by me in the regular course of business and from a printer of the Plaintiff company.
c. I state that the said computer server/system is regularly used to generate electronic documents. I state that I have lawful control over the use of the said computer system by virtue of my official capacity in the organisation.
d. I state that the contents of the Records are true to the best of my knowledge and are an exact replica of the information available with the Plaintiff Company. I further, state that the contents therein have not been altered, changed or tampered with, in any manner.
4. 1 further state that the computer device and printer on which the records were accessed and printed by me Case No. CS(COMM)/516/2019 Page No. 24 of 49 was in a fully working condition and did not suffer any malfunction.
5. I state that I am making this present affidavit to certify that the printouts of the abovementioned documents are true representations of the Records which were printed through the computer under my use. I further state that the computer used by me was operating properly and there is no distortion in the accuracy of the content of the Records.
6. I state that this affidavit, therefore, in the facts and circumstances of the case, is sufficient compliance of Section 65B of the Evidence Act, 1872. I further state that it may be treated as original after the directions of this Hon'ble court."
8.14 It is well known fact that the data related to GST (Goods and Service Tax) payment and related record to this is maintained by GST authorities and its is available at the GST portal of Central Government and every business establishment concerned has been provided access to their particular GST account through which they can download the data related to their GST transactions and it is clear from the aforesaid certificate that it has been specifically stated by PW1 that he had taken the printout of the said certificates by accessing to their GST portal. As far as the date and time of printout is concerned, same is mentioned on the certificate itself (dated 16.07.2022 at 12.05). This certificate also shows as to from which particular section (folder) of their GST portal, PW1 downloaded the said GSTR1. Thus, it is clear that this data is not maintained by the plaintiff in their computer system and it is maintained by the concerned GST Authorities Case No. CS(COMM)/516/2019 Page No. 25 of 49 of Central Government and every party concerned has a right to access to their respective GST portal to download the requisite information. Therefore, the PW1 was only required to give a certificate that he had taken a printout of the said GSTR-1 from their GST portal which certificate has been given by him. PW1 being Senior Finance Executive/Assistant Manager (Finance) and being authorized for filing the present suit had a right to take a printout of the same from their GST portal and bring the same on record. Thus, in view of these discussions, it is held that plaintiff has duly proved the GSTR1 certificates/return (Ex.PW1/5 colly.) qua these two invoices and therefore, same can be taken into consideration. Even otherwise, it is clear that the Ld.Counsel has raised his objection only qua the admissibility and proof of the said certificates, however, the correctness of the details of the transactions mentioned in these GSTR-1 certificates/return have not been disputed, thus, under these circumstances, it can be said that as far as the details of transactions mentioned in these GSTR-1 certificates remained unrebutted. Even otherwise, it is clear that the said details (Ex.PW1/5) have been taken from the portal of Central Government Agency, therefore, even otherwise the authenticity of the details mentioned in these certificates cannot be doubted unless something contrary is brought on record by the defendants. In case, there would have been any discrepancy, the Ld. Defence counsel would have either cross examined PW1 qua the same or defendants would have brought on record their complete Case No. CS(COMM)/516/2019 Page No. 26 of 49 GST record qua all the transactions which took place between the plaintiff and defendants and defendants could have done this very easily as there had been very limited transactions between the parties, though, spanning over the period of two financial years. The comparison of the disputed invoices (Ex.PW1/3 and Ex.PW1/4) and GSTR-1 (Ex.PW1/5 colly.) clearly shows that both these sets of documents contains the similar details of the transactions which also proves the authenticity of the invoices and this further shows that plaintiff had not only generated/raised these invoices but also declared the said sale of goods with the GST authority by paying the requisite GST amount. Thus, in view of these discussions, It is clear that plaintiff has proved that it had raised these invoices (Ex.PW1/3 and Ex.PW1/4) against the defendants and had also paid the requisite GST against these two invoices. Thus, plaintiff has clearly established the transaction of sale of goods, through, the aforesaid evidence except the aspect of delivery of goods upon the defendants. Under these circumstances, it can be said that plaintiff has brought on record the sufficient evidence to discharge the initial onus laid upon them to prove the transactions. As far as the aspect of delivery is concerned, it is admitted position of fact that plaintiff does not have acknowledgement of delivery of goods qua these two invoices, therefore, for that purpose, the other relevant aspects of the matter are required to be considered, as plaintiff has discharged the initial onus by bringing on record prima facie sufficient material to establish the transactions by Case No. CS(COMM)/516/2019 Page No. 27 of 49 way of the evidence/material which was in their possession and as far as the relevant document/material (in regard to the aspect of delivery of goods) which is in possession of defendants is concerned in view of provisions of Order 11 Rule 5 CPC for that purpose and to that extent plaintiff can seek production of the relevant documents from the defendants, in order to establish, the remaining aspects of the matter. Thus, under these circumstances, the moment, plaintiff has discharged the initial onus, the onus qua certain aspects of the matter also gets shifted on the shoulder of defendants and these aspects are very material and relevant thus, the same are required to be discussed in detail.
8.15 The plaintiff could have brought on record the evidence/material which was in their control and possession and as far as the rest of the material/evidence which is in the possession of defendants is concerned, same could have only been produced on record by the defendants either of their own or on the asking of plaintiff. As already discussed that plaintiff had paid the GST qua both these invoices, thus, in view of the settled procedure, the complete details of transactions mentioned by the seller in their (plaintiff) GSTR-1 is reflected in the GSTR-2A of the purchaser (defendants) and therefore, under these circumstances, the defendants would have immediately come to know that plaintiff has raised the aforesaid two invoices against them and made an official declaration about the same on the GST portal. It is undisputed Case No. CS(COMM)/516/2019 Page No. 28 of 49 that as far as rest of the transactions (besides two disputed bills) are concerned, the defendants were regularly dealing with the plaintiff and therefore, in case, the defendants had not purchased the goods against these two invoices, they ought to have immediately raised their objection/protest with the plaintiff qua the same and ought to have immediately asked them to withdraw the aforesaid claim. Not only this, defendants were also required to bring this fact to the notice of concerned GST authorities, however, it is clear that in this regard defendants never made any communication either with the plaintiff or with the GST authorities. It cannot be assumed that defendants would remain silent when a claim of such a substantial amount is being officially channelized by the plaintiff against them. Once the aforesaid transactions had been reflected in their GST account, the defendants were under bounden legal duty to get the said GST entries, which according to them were illegally made by the plaintiff, rectified immediately, however, it is clear that defendants always remained silent and they did not do the needful in this regard. The inaction on the part of defendants clearly show that they did not take any action as they had purchased the goods from the plaintiff against these two invoices as well. There is another reason for this presumption as defendants did not place on record their complete GST record. In order to show that defendants had purchased the goods against these two invoices also, during cross examination, the DW1 (the partner of D1) was asked to produce on record the complete Case No. CS(COMM)/516/2019 Page No. 29 of 49 GST Input Tax Credit (ITC is short) statement pertaining to the month of January 2018 and February 2018. The DW1 only produced the composite ITC statement qua these two months (Ex.DW1/P1 and Ex.DW1/P2). When DW1 was asked to produce the complete break up of said GST ITC, he stated that he does not have the same. DW1 further stated that he is not able to produce the break up of the said ITC as the said record is 4-5 years old. It is clear from the cross examination of DW1 that DW1 did not put forth any cogent reason for non production of the requisitioned record. He simply stated that he cannot produce the same as the same is 4-5 years old record which cannot be said to be a sufficient cause for non- production of the said record. Furthermore, it is the DW1 who produced the said record and as per him being one of the partners of D1, he was fully aware of all the transactions that took place between the parties, however, in regard to the GST ITC, he showed his ignorance and stated that he is not aware if they have taken the ITC against all the invoices raised by the plaintiff against their firm.
8.16 Thus, under these circumstances, an adverse inference should be drawn against the defendants for deliberately withholding the relevant details of GST input tax credit and therefore, it should be presumed that defendants did not produce the complete relevant GST ITC details (alongwith bill by bill break up) as it would have reflected that they had purchased the goods against these two invoices and Case No. CS(COMM)/516/2019 Page No. 30 of 49 simultaneously, they had also taken the ITC against these two invoices as well. So, it is clear that neither defendants brought on record any evidence to show that they had not received the information regarding the transactions of said two bills in their GST record nor that if they had received the information, they had taken appropriate action warranted from their side. The defendants did not produce their relevant GST record of their own and they also did not produce the same when it was specifically requisitioned by the Ld. Counsel for the plaintiff. Thus, under these circumstances, adverse inference should be drawn against them and it is to be presumed that defendants had purchased the goods against these two invoices as well and they had also claimed GST ITC against these bills. In this regard the provisions of Order 11 Rule 5 CPC are relevant which are reproduced as under:-
5. Production of Documents (1) Any party to proceedings may seek or the Court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit.
(2) Notice to produce such document shall be issued in the Form provided in Form No. 7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908).
(3) Any party or person to whom such notice to produce is issued shall be given not less than seven days and not more than fifteen days to produce such document or to answer to their inability to produce such document.
Case No. CS(COMM)/516/2019 Page No. 31 of 49(4) The Court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for such non-production are not given and order costs.
8.17 Thus, it is clear from the aforementioned provisions of CPC that in case, a party who has been directed to produce some documents, fails to produce the same without sufficient reasons, the court may draw an adverse inference against that party. As already discussed that in the present case, during cross examination, DW1 was asked to produce the relevant GST ITC record but he did not produce the same on flimsy grounds.
8.18 It is well settled law that an adverse inference can be drawn against a party who despite directions fails to produce the documents notwithstanding, the onus to prove certain facts was not on that party. In this regard, this Court is supported by the Judgment of Hon'ble Supreme Court titled as Union of India Vs. Ibrahim Uddin, the relevant paras of which is as under:-
"6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & ors. V. Badkulal Ors., AIR 1953 SC 225; A. Raghavamma & Anr. V. A Chenchamma & Anr., AIR 1964 SC 136;The Union of India Vs. Mahadeolal Prabhu Dayal, AIR Case No. CS(COMM)/516/2019 Page No. 32 of 49 1965 SC 1755; Gopal Krishnaji Ketkar V. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s.Bharat heavy Electrical ltd. VS. State of U.P. & Ors., AIR 2003 SC 3024; Musauddin Ahmed Vs State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt.Ltd. & Anr.V.Union of India & Anr., (2011) 9 SCC 126).
7. However, in Mt. Bilas Kunwar Vs. Desraj Ranjit Singh, AIR 1915 PC 96, a view has been expressed that it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for interrogatories/inspections and production of documents. If he fails to do so, neither he nor the Court at his suggestion, is entitled to draw any inference as to the contents of any such documents.
8. In Kamma Otukunta Ram Naidu V. Chereddy Pedda Subba Reddy & Ors., AIR 2003 SC 3342, this Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn only on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also:Mohinder kaur Vs. Kusam Anand, (2000) 4 SCC 214; and Takhaji hiraji Vs Thakore Kubersing Chamansing & Ors., AIR 2001 SC 2328).
9. In Municipal Corporation, Faridabad V Siri Niwas, AIR 2004 SC 4681, this Court has taken the view that the law laid down by this Court in Gopal Krishnaji Ketkar (supra) did not lay down any law, that in all situations the presumption in terms of clause (g) of section 114 of the Evidence Act must be drawn.
10. In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das & Anr., AIR 1967 SC 256, this Court held that mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party Case No. CS(COMM)/516/2019 Page No. 33 of 49 in possession does not produce it, adverse inference may be drawn:
"It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent case."
11. In Ramrati Kuer Vs Dwarika Prasad Singh & Ors., AIR 1967 SC 1134, this Court held:
"It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs-respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non-production of accounts." (See also:Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors., AIR 2012 SC 1339)".
8.19 Furthermore, it was submitted by Ld. Counsel for plaintiff while referring to the GSTR3B statements (Ex.DW1/P1 and Ex.DW1/P2) that it is clear from these consolidated statements of ITC produced on record by DW1 that for the month of Junuary 2018, in all a sum of Rs.1,95,330.86 was available with the defendants as input tax credit for goods purchased by defendants in the month of Case No. CS(COMM)/516/2019 Page No. 34 of 49 January 2018 and likewise for the month of February 2018 in all a sum of Rs.1,22,109.08 was available with the defendants as input tax credit for goods purchased by defendant in this very month. It was further submitted that it is clear from these statements that defendants had taken the entire ITC for all the goods purchased by them during the month of January and February 2018 and since the plaintiff had supplied the goods to the defendants in the month of January and February 2018, therefore, it is clear that defendants had taken the ITC against the invoices Ex.PW1/3 & Ex.PW1/4 as well. This Court finds substance in this submissions of Ld. Counsel for plaintiff as it is clear from these GSTR3B Statements of defendant that they had taken ITC against all the inward supplies. Thus, once it has been established by the plaintiff through their invoices as well as GSTR-1 Ex.PW1/5 (Colly.) that they had raised the invoices against the defendants as well as paid the requisite GST against those invoices and also that the defendants have availed the ITC against all the inward supplies then it has to be presumed that defendants had taken the input tax credit against the disputed invoices as well.
LEGAL NOTICE 8.20 Plaintiff has claimed that prior to the filing of the present suit, plaintiff had demanded the due amount through legal notice Ex.PW1/10 which was served upon the defendants vide tracking report Ex.PW1/10 (Colly.). Defendants have denied the service of the legal notice. Prior to analyzing the Case No. CS(COMM)/516/2019 Page No. 35 of 49 evidence on the point of service of legal notice, the objection taken by the Ld. Counsel for the defendants regarding the mode of proof and admissibility of legal notice is required to be dealt with. As already discussed while making detailed discussions about the certificate u/s 65-B I.E.Act given by the plaintiff in compliance of order 11 R 6 CPC that PW1 being the finance incharge of the plaintiff company can bring on record the legal notice through his evidence. Besides tendering of the copy of the legal notice, its courier receipt and its tracking report (PODs) in his evidence, PW1 also deposed in para no.17 of his affidavit (Ex.PW1/1) that plaintiff got sent the aforesaid legal notice which was delivered upon the defendant no.1 on 19.02.2019, however, only an objection regarding the mode of proof and admissibility of legal notice and tracking report has been taken but the factum of issuance of legal notice as well as its service upon defendant no.1 has not been disputed during the cross examination of PW1. Thus, the statement of PW1 regarding the factum of issuance/service of legal notice remained unrebutted. It is clear from the evidence of PW1 that he was well aware not only about the factum of issuance of legal notice but also about the service of the same. Thus, PW1 is a competent witness to bring on record the copy of the legal notice as well as its courier receipt and tracking report thereof. Perusal of the courier receipt shows that the legal notice was sent to the D-1 through DTDC courier service and as per tracking report, it was delivered upon defendant no.1. Neither the authenticity of courier receipt nor Case No. CS(COMM)/516/2019 Page No. 36 of 49 the tracking report has been assailed. As far as the certificate (Sec.65-B of i.e. Act) qua tracking report is concerned, the same has been filed by PW1 alongwith the suit. As far as the print out of the tracking report is concerned, the same would not become inadmissible merely because its print out has been taken by PW1 by using the computer system of his Ld. Counsel. The tracking report and courier report have been collectively exhibited as Ex.PW1/10 (colly.). It is clear from the courier receipt Ex.PW1/10 Colly. that the tracking report (POD) can be downloaded from the website of the DTDC and it is clear that PW1 downloaded the same from the website of DTDC and the time and date of the print out is also mentioned on the tracking report. Thus, this data is not which was there in the computer system of their Ld. Counsel and this data was available online (website) of DTDC and same has been taken from there only and therefore, even if the same (POD) has been downloaded by PW1 at the office of their Ld. Counsel, the same would not render the tracking report inadmissible. Thus, it is held that the tracking report which is supported by the certificate u/s 65-B of I.E Act is admissible in evidence. As such, under these circumstances, it is to be presumed that the legal notice (Ex.PW1/10) was duly served upon the defendant no.1. Furthermore, it is also clear that the legal notice was sent to D1 at the same address upon which summons of the suit were served upon. Thus, it is clear that the legal notice was sent to D1 at its correct address, therefore, in view of the Case No. CS(COMM)/516/2019 Page No. 37 of 49 settled law even otherwise, same is presumed to have been served upon defendant no.1.
8.21 As per defendants, nothing is due from them to plaintiff and yet plaintiff demanded a substantial amount through the legal notice, however, despite service of the legal notice, defendants kept mum and neither they rebutted the claim of the plaintiff through a reply nor taken any action against the plaintiff for agitating the false claim against them. It is clear that defendants neither took any action immediately after service of the legal notice nor when they were served with the notice of pre institution mediation. They even did not take any action against the plaintiff when plaintiff filed the present suit with their alleged false claim. Thus an adverse inference should be drawn against the defendants that they neither responded to the legal notice nor took any action against the plaintiff as plaintiff had raised a genuine claim through their legal notice. In this regard this court is supported by the judgment of Hon'ble Delhi High Court reported as Group Interiors Vs. Subhash Chachra, 2012 (186) DLT 724.
EXTRA PAYMENT 8.22 There is another crucial aspect of the matter which shows that defendants had purchased the goods from the plaintiff against these two invoices. As per plaintiff, in total, they supplied goods of Rs.66,42,033/- to the defendants but as per defendants they had only purchased goods of Rs.
Case No. CS(COMM)/516/2019 Page No. 38 of 4948,42,033/- and they paid this amount to the plaintiff, therefore, nothing is due from them to the plaintiff. As per plaintiff, they supplied the goods to the defendants through seven invoices and it is clear that there is no dispute about first five invoices, total of which comes to Rs.47,87,657/- and total of the two disputed bills comes to Rs.18,54,376/-. As per plaintiff defendants only made part payment of Rs.54,376/- qua the last two invoices and Rs.18.00 Lac is still due. Defendants admitted the supply of goods qua first five invoices as well as payment of Rs.48,42,033/-.Thus, under these circumstances, the onus was on defendants to establish that they had purchased the goods of the aforesaid amount which was paid by them to the plaintiff, however, it is clear that the total of the five admitted bills comes to Rs.47,87,657/- and thus, admittedly an additional amount of Rs.54,376/- has been paid by the defendants to the plaintiff, thus, defendants were required to establish against which other invoice/invoices they had made the said payment(full payment). Defendants have neither filed their statement of account nor any invoice nor their GSTR2A or GSTR3B (input tax credit) (ITC) to establish the same. It is clear that through out the trial since the time defendants filed their leave to defend application, their stand has been that they have already made the entire payment of the goods purchased by them from the plaintiff. After the leave was granted, the defendants reiterated their aforesaid defence and specifically stated that they had received the goods of Rs.48,42,033/- and accordingly, they have already Case No. CS(COMM)/516/2019 Page No. 39 of 49 made the payment of this amount to the plaintiff. They also continued with their aforesaid defence till the stage of their evidence and DW1 (the partner of D1) reiterated in his affidavit Ex.DW1/A that they had received the goods of Rs.48,42,033/- and accordingly , they paid the said amount to the plaintiff. Defendants did not file any document whatsoever to establish their this specific defence however, during cross examination, DW1 (on the asking of Ld. Counsel for the plaintiff) produced statement of account from the period w.e.f. 01.07.2017 to 31.03.2018 and 01.04.2018 to 31.03.2019 (Ex.DW1/D3 colly.). Though the statement of account produced by defendants is neither admissible nor reliable as admittedly, this statement was prepared by their accountant Sh. Sumit and the said accountant did not furnish certificate u/s 65B IE Act in support of this statement of account. Furthermore, these statement of accounts pertain to the year 2017-18 and 2018-19 and these were produced by DW1 after more than four years of elapse of the aforesaid financial years, thus, defendants ought to have produced on record, the statement of account submitted by them with the tax authorities. Though, these accounts statements are not admissible, however, these can be looked into from the perspective of defence of defendants. As per these statements of account also, defendants had purchased the goods of Rs.47,87,657/- and an additional amount of Rs.74,376/- has been paid by the defendant to the plaintiff. A sum of Rs.20,000/- stated to have been paid online by the defendants Case No. CS(COMM)/516/2019 Page No. 40 of 49 to the plaintiff on 28.11.2018, however, defendants have not filed any documentary proof about the said payment. Thus, undisputedly, besides the aforesaid amount, defendants had made the additional payment of Rs.54,376/- and it is clear from the statement of account relied upon by the defendants that they had not purchased any goods from the plaintiff after 17.01.2018 and in case, we go by the defence of the defendants taken by them in their WS as well as in their evidence (in the affidavit of DW1) and it assumed to be correct then it is clear that these documents (statement of accounts) contradict their own defence as the amount of Rs.54,376/- (or Rs.74,376/-) has not been paid by the defendants against any invoices (purchases). Thus, if the defendants had not purchased any goods from the plaintiff after 17.01.2018 then it cannot be assumed that without there being any further purchase for about 10 months period, the defendants would pay any substantial additional amount to the plaintiff. In case, they had purchased the goods of Rs.45,87,657/- then defendants ought to have only paid the balance amount on 17.10.2018, instead of making payment of Rs.1,00,000/- because after this payment admittedly, an additional amount of Rs.54,376/- went to the plaintiff firm. Furthermore, it is clear from the evidence of DW1 that after the aforesaid statement of accounts were filed by DW1 on the asking of Ld. Counsel for plaintiff, defendants realized that their statement of account would contradict their own defence, therefore, when he was asked as to how much amount was paid by them to the Case No. CS(COMM)/516/2019 Page No. 41 of 49 plaintiff, he said that defendants had paid more amount than the medicines purchased by them from plaintiff. Thus, this particular statement of DW1 shows that defendants took a contradictory stand in their evidence (in cross examination) to their original defence and this render their entire defence unreliable. Even if we go by this defence of excess payment yet the same is not trustworthy as the same has not been established by the defendants. In case, the defendants would have already made excess payment then the defendants would have sent a reply to the plaintiff's legal notice and would have specifically taken this plea in their reply. Defendants had another opportunity to take this plea at the stage of pre- institution mediation also that no pre-institution is possible as nothing is due from them and instead plaintiff is liable to return to them the excess payment made by them. The defendants further had this opportunity to mention this fact/defence in their leave to defend application/WS and they could have also filed their counter claim, however, despite ample opportunities at their end, defendants never ever took this plea and only changed their course of defence after they felt compelled to take this plea because they were unable to put forth any reason for the said additional payment. Thus, keeping in view of the aforesaid facts and circumstances discussed in detail it can be very well said that defendants had also purchased the goods from the plaintiff against the last two invoices (Ex.PW1/3 & Ex.PW1/4) also and they only made part payment of Rs.54,376/- against the same.
Case No. CS(COMM)/516/2019 Page No. 42 of 49ALLEGED ACKNOWLEDGEMENT MARK 'A' 8.23 Besides the aforesaid documents, plaintiff has also relied upon one document Mark 'A' which is stated to be a signed written acknowledgment of the outstanding balance amount of Rs.36,04,139/- as on 31.03.2018 stated to have been issued by Sh. Manjeet Singh, the Partner of D-1. As per plaintiff, the aforesaid document is an acknowledgment given by one of the partners of D-1 and this acknowledgment was submitted by Sh. Manjeet Singh with the auditors of plaintiff i.e. Walker Chandiok and Co. LLP. It is further the case of the plaintiff that the said acknowledgment was scanned at the office of their aforesaid auditors and was provided to them by their auditors through mail and they have placed on record the print out of the same and since this document has been scanned from the original acknowledgment, it should be treated to be an electronic evidence for which PW1 has given his certificate u/s 65-A & B of Indian Evidence Act (Ex.PW1/12) in compliance of order 11 rule 6 CPC. It is also submitted that in order to bring this document on record, plaintiff examined PW2 Sh. Rohit Arora, the Partner of their aforesaid auditors. In this regard, Ld. Counsel for plaintiff relied upon the Judgement of Hon'ble Supreme Court reported as Union of India Vs. Sandeep Kumar & Ors. and submitted that in this case, a scanned copy of a handwritten slip was taken into consideration as the original slip was lost during transit. Thus, Ld. Counsel submitted that the document 'Mark Case No. CS(COMM)/516/2019 Page No. 43 of 49 A' which is an electronic record duly supported by the certificate u/s 65A & B of Indian Evidence Act may be treated to have been proved in accordance with law and therefore, the same may be taken into consideration. It is submitted that by way of the aforesaid acknowledgment Sh. Manjeet Singh had acknowledged the outstanding balance as on 31.03.2018 and thereafter, the defendants have only made the part payment qua the goods purchased by them leaving an outstanding balance of Rs.18,00,000/-. On the other hand, Ld. Counsel for the defendants vehemently opposed the submissions of Ld. Counsel for the plaintiff made qua this document. Ld. Counsel for defendant has raised several objections in regard to this document. Firstly, it was submitted that the 'Mark A' is not an electronic record and it was also submitted that the certificate u/s 65B IE Act has also not been given by the person concerned. Besides, it was also submitted that the PW2 is not the person concerned who received and dealt with this document. Thus, it was submitted that the plaintiff has failed to prove this document as per law.
8.24 As far as the document Mark 'A' is concerned, firstly, it is to be seen whether this document can be actually considered to be an electronic record per se because admittedly, this document was neither originally created nor maintained in the computer system by the auditors of the plaintiff. As per plaintiff's claim this acknowledgment was issued by the partner of D1 who sent the same directly to their Case No. CS(COMM)/516/2019 Page No. 44 of 49 auditors where the original acknowledgment was scanned by the staff concerned of the auditors of plaintiff and fed in the computer system. Thus, as far as the document Mark A is concerned, it would governed by the provisions of section 65 of Evidence Act for the purpose of leading secondary evidence and not by the provisions of Sec 65-B of I.E. Act which is meant for bringing on record the secondary evidence qua the electronic record. Thus, in case plaintiff wanted to lead secondary evidence qua this document, plaintiff was required to follow the necessary provisions of Section 65 of Evidence Act, however, plaintiff did not make any efforts in this regard.
8.25 Furthermore, Even if it is assumed that the Mark 'A' is an electronic record yet, plaintiff was required to prove the same in accordance with the settled law. It is clear from the cross examination of PW2 that this document was received by their erstwhile Assistant Manager Mr. Shikhar Khanna. Thus, neither PW2 received this document nor seen its original nor he is the person concerned who scanned Mark 'A'. Thus, firstly in order to prove this document, the person concerned who had received this document ought to have been examined by the plaintiff. Besides, the certificate u/s 65A & B of I.E. Act qua this document could have been given by the person concerned who had originally scanned this document and probably in view of the evidence of PW2, the said person was Mr. Shikher Khanna, thus, the certificate u/s 65A and B of I.E. Act given by PW1 cannot be read in support of this document.
Case No. CS(COMM)/516/2019 Page No. 45 of 49In regard to her submissions, qua this document, Ld. Counsel for the plaintiff has relied upon the Judgement of Hon'ble Supreme Court in the matter of Union of India & Ors. Vs. Sandeep Kumar & Others,(2019) 10 SCC 496, the relevant para of which is as under:-
"41.The accused have tried to create doubt on the prosecution story on the basis of the fact that the originals of handwritten slip have not been produced. Lt. Col. J.G. Gopalan (PW-1) has deposed that original of such slip has been lost during transit whereas the scanned copy is the true copy of the original which the witness has seen. Such statement is supported by statements of Risaldar Sarwan Kumar (PW-5) who has found the slip and Dafedar Vijaypal Singh (PW-4) who has recovered the cardboard shoebox. Still further, before the DCM, the learned counsel for the accused have not disputed the production of the slips by way of secondary evidence. Therefore, we find no reason not to take into consideration such slips in evidence as Lt. Col. J.G. Gopalan (PW-1) and Col. Arvinder Singh (PW-6) are the persons who have seen the originals and have also deposed that the scanned copies are the same as of originals. Therefore, we find that the Tribunal erred in law in reversing the findings recorded by the DCM while exercising appellate jurisdiction under Section 15 of the Act".
8.26 It is clear from the above referred portion of the Judgement of Hon'ble Supreme Court that the said case pertains to the provisions of Section 65 of Evidence Act and does not pertain to Sec. 65B of I.E. Act. Furthermore, the facts of the aforesaid case were altogether different as firstly, the witnesses who had seen the original slip were examined by the prosecution and secondly, the admissibility of the scanned copy of the original slip was not disputed by the Ld. Defence Case No. CS(COMM)/516/2019 Page No. 46 of 49 counsel. Thus, it is most humbly observed that the aforesaid Judgement cited by the Ld. Counsel for the plaintiff is not applicable to the facts of the present case. Thus, in view of these discussions, it is held that the plaintiff has failed to prove Mark 'A' in accordance with law and therefore, the same cannot be taken into consideration.
8.27 Before concluding the discussions on this issue, one another point addressed by the Ld. Defence Counsel needs to be discussed. Ld. Counsel for defendants submitted that the plaintiff company was a start up business and their officials committed bungling of funds of plaintiff company and in this regard an FIR was also registered by PW1 against Mr. Harish Sharma, the member of Operation team. Thus, it was submitted that the present frivolous case has been filed by the plaintiff on the basis of fictitious, forged and invented invoices just to satisfy their investors. The aforesaid point raised by the Ld. Defence counsel is not relevant to the present case as in the present case it has been established by the plaintiff that it had supplied the goods to the defendants against the subject invoices, therefore, it is held that the plaintiff had a legal right to institute the present suit against the defendants for recovery of their amount. Thus, in view of the discussions made in the preceding paras, it is most respectfully observed that the case laws submitted by the Ld. Defence counsel are not applicable to the peculiar facts and circumstances of the present case.
Case No. CS(COMM)/516/2019 Page No. 47 of 498.28 In view the discussions made in the preceding paras it is held that the plaintiff is entitled to the recovery of Rs.18.00 Lac from the defendants. This issue is decided accordingly.
ISSUE NO.2 Whether the plaintiff is entitled to interest, if so at what rate? OPP
9. The onus to prove this issue was on the plaintiff. Plaintiff has claimed 18% p.a. pendentelite and future interest from the date of filing of the suit till its realization. In this regard, plaintiff has relied upon the terms and conditions mentioned on the invoices Ex.PW1/3 and Ex.PW1/4 according to which the defendants were liable to pay 24% p.a. interest if the payment is not made before due date. Ld.Counsel submitted that though rate of interest has been mentioned as 24%, however, plaintiff has claimed interest @ 18% p.a. only. As already discussed, the plaintiff had demanded the due amount by sending a legal notice Ex.PW1/10, however, defendants failed to pay the due amount despite service of the legal notice, thus, plaintiff is entitled to claim pre-suit, pendentelite and future interest from the defendants. Since the plaintiff has claimed pre-suit interest @ 18% p.a. which is lesser than the contractual rate of interest, therefore, plaintiff is awarded pre-suit interest @ 18% p.a. on the due amount from the date of last payment i.e. 17.10.2018 till filing of the present suit. As far as the pendentelite and future interest is concerned, Case No. CS(COMM)/516/2019 Page No. 48 of 49 keeping in view of the facts and circumstances of the case, plaintiff is awarded interest @ 9% p.a. This issue is decided accordingly.
RELIEF
10. In view of my issues wise findings, the present suit is decreed in favour of the plaintiff and against the defendants for recovery of a sum of Rs.18,00,000/- alongwith cost of the suit. Plaintiff is awarded pre-suit interest @ 18% p.a w.e.f. 17.10.2018 till filing of the present suit. Plaintiff is also awarded pendentelite and future interest @ 9% per annum. Decree sheet be prepared. File be consigned to Record Room.
Announced in the Open Digitally
signed by
Court on 07.09.2024 AJAY AJAY GUPTA
Date:
GUPTA 2024.09.07
16:33:22
+0530
(Ajay Gupta)
District Judge (Commercial Court)-05
West, Tis Hazari Courts Extension
Block, Delhi/07.09.2024
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