Delhi District Court
Ecom Express Limited vs Befikarr Ecommerce Llp on 13 March, 2023
IN THE COURT OF MS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL)-03,
PATIALA HOUSE COURTS, NEW DELHI
CS (COMM)- 104/19
Ecom Express Limited
Through its AR
Registered Office at:
Ground Floor, 13/16 min, 17 min,
Samalka, Old Delhi- Gurugram Road,
Kapashera, New Delhi-110037
Also at:
Corporate Office at 10th Floor,
Ambience Corporate Tower- II,
Ambience Island, NH-8,
Gurugram, Haryana- 122002
........ Plaintiff
Versus
Befikarr Ecommerce LLP
Through its Partners/ARs
No. 12, 1st Floor,
Bhurakhiya Dham Beside Navjivan Hotel,
Sarthana Jakat Naka,
Kamrej Road, Surat,
Gujrat-395006 ...... Defendant
Date of institution of suit : 29.04.2019
Judgment reserved on : 28.02.2023
Date of Judgment : 13.03.2023
Appearance: Sh. Harsha Gollamudi and Sh. Vishal Kapoor,
Ld. Counselss for the plaintiff.
Sh. Chirag Alagh, Ld. Counsel for the
defendant.
CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr
Page 1 of 16
JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of Rs. 13,38,762/- (Rupee Thirteen Lacks Thirty Eight Thousand Seven Hundred and Sixty Two only) along with pendente lite and future interest against the defendants.
2. Brief facts as stated in the plaint are that plaintiff is engaged in providing courier and other allied services. Sh. Deepak Pruthi, Manager (Finance & Accounts) is Authorized Representative (AR) of plaintiff. The defendant no. 1 is a partnership firm incorporated under Limited Liability Partnership Act and defendant no (s). 2 to 4 are the Partners and In-Charge and are responsible for the conduct of the business of defendant no. 1. It is stated that the defendant no(s). 2 to 4 for and on behalf of defendant no. 1 after negotiation, entered into an agreement dated 13.02.2017 with the plaintiff for availing the services of plaintiff and promised the timely payment for the services availed from the plaintiff. The plaintiff provided courier services as per directions and requirement of the defendants and raised monthly bills as per the agreed rates. As per the arrangement, the defendants were under obligation to make the payment of the due amount within 10 days of invoice, failing which the defendants were liable to pay interest i.e. 24% per annum approx. The defendants were under obligation to reconcile the statement of account soon after closing of each month, failing CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 2 of 16 which, the plaintiff was under no obligation to entertain any claim in respect of the same. The plaintiff after availing the services, as requested / required by the defendants, raised the invoices and sent the same to the defendants, however, the defendants did not raise any objection or discrepancy in the said invoices and statement sent. According to the plaintiff, the defendants after making initial payment for the services availed, thereafter, stopped making the payment and despite various requests & reminders, the defendants failed to make payment of Rs. 11,64,392/- (Rupee Eleven Lacks Sixty Fourt Thousand Three Hundred and Ninenty Two only) the outstanding amount as on 16.06.2018. A legal notice dated 18.06.2018 was sent through registered AD calling upon the defendants to make the payments of Rs. 11,64,392/-, which included the interest till 16.06.2018 @ 2% per month i.e. 24% per annum from the date of bill / invoice along with future interest @ 2% per month till its realization. Another legal notice dated 27.06.2018 was also sent through email on 18.07.2018, however, the defendants despite service failed to make the payment of due amount. This Court has jurisdiction to entertain and try the present suit and the suit is within the period of limitation. The defendants are jointly & severally liable to pay a sum of Rs. 13,38,762/- (Rupees Thirteen Lacks Thirty Eight Thousand Seven Hundred and Sixty Two only) along with interest @ 24% per annum till its realization. Hence, this suit for recovery.
3. Pursuant to summons issued, the defendants appeared. It is CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 3 of 16 relevant to mention here that defendant nos. 2 & 3 were deleted vide order dated 29.04.2019 being Directors and not personally liable for the acts of the company. Joint written statement was filed by defendant nos. 1 & 4 raising preliminary objection that the suit of the plaintiff deserves to be dismissed on the ground that no cause of action ever arose in favour of plaintiff or against the defendants as alleged in the plaint. The alleged invoices seem to be forged and fabricated and are specifically denied. This Court has no territorial jurisdiction to entertain and try the suit as no cause of action ever arose either wholly or partly within the jurisdiction of this Court. In parawise reply, the averments of the plaint were denied and it is stated that all the payment due & payable to the plaintiff has already been paid and no legal outstanding dues are liable to be paid by the defendants to the plaintiff, as alleged. It is submitted that no invoice was ever received except as submitted above, the payment of which were made well within the time and to the satisfaction of the plaintiff. On these grounds, a prayer was made that the suit filed by the plaintiff deserves dismissal.
4. At this juncture, it is pertinent to mention here that defendant no. 4 was also deleted from array of parties vide order dated 05.07.2022 observing that the defendant no. 1 is LLP and the partners of LLP have limited liability as provided in Section 27 of Limited Liability Partnership Act, 2008. Amended memo of parties was filed.
CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 4 of 16
5. In the replication filed to the written statement of the defendant, the plaintiff denied the case as set up by the defendant in the written statements and has reiterated and reaffirmed the case set up by the plaintiff in the plaint.
6. From the pleadings of the parties, following issues were framed vide order dated 17.08.2022.
i) Whether the plaintiff is entitled to recovery of a sum of Rs. 13,25,762/- as prayed for? OPP.
ii) Whether plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
iii) Whether the suit is barred being beyond the territorial jurisdiction of this court? OPD.
iv) Relief.
7. In support of its case, the plaintiff has examined Sh. Uday Mukherjee, AR as PW1 and thereafter closed its evidence.
8. The defendant choose not to lead any evidence and vide separate statement of Ld. Counsel for defendant, DE was closed.
9. I have heard arguments advanced by ld. Counsel for the parties and gone through the record. My issue wise findings are as follows:-
Issue No. 1: Whether the plaintiff is entitled to recovery of a sum of Rs. 13,25,762/- as prayed for? OPP.
10. The onus to prove this issue was upon the plaintiff. The plaintiff examined Sh. Uday Mukherjee, Assistant Manager CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 5 of 16 (Finance) as PW1 and tendered evidence by way of affidavit as Ex. PW1/A and made statement in consonance with the averments made in the plaint. He deposed that he has been authorized by the plaintiff to depose in this matter and produced Board Resolution and Letter of Authority in his favour Ex. PW1/1 (colly) (OSR). He further deposed that the plaintiff & defendant entered into an Agreement dated 13.02.2017 Ex. PW1/2 (OSR). He placed on record Debit Note No. DN201704/149 dated 14.04.2017 Ex.PW- 1/3, invoice/debit note no. DN201705/642 dated 29.05.2017 Ex.PW-1/4, invoice/debit note no. DN201705/296 dated 16.05.2017 Ex.PW-1/5, invoice/debit note no. DN201704/310 dated 30.04.2017 Ex.PW-1/6, bill No. 0C4377 dated 29.04.2017 along with airwaybill wise charges Ex. PW1/7, bill no. 8800 dated 01.05.2017 Ex. PW1/8 and invoice for bill no. 9218 dated 01.06.2017 Ex. PW1/9. He further relied upon statement of account of the defendant for the period from 01.04.2017 to 03.12.2017 Ex. PW1/10. Legal notice dated 18.06.2018 Ex. PW1/11 and postal receipts & return invoices Ex. PW1/12 (colly) and tracking report Ex. PW1/13 were proved. This witness also placed on record email addressed by the counsel for the plaintiff Mark PW1/14, chart calculating interest Ex. PW1/15 and Certificate under Section 65-B of Evidence Act Ex. PW1/16.
11. PW1 was subjected to cross examination and during cross examination, he has stated that he has been working with plaintiff since 2017. The agreement Ex. PW1/2 was executed in his CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 6 of 16 presence, however, again said that it was not executed in his presence. He has also stated that he was not present during negotiation between the plaintiff and defendant as stated in Para No 5 of his affidavit. He admitted to be correct that agreement Ex. PW1/2 was signed and executed in Gujrat. He denied the suggestion that no transaction under the agreement was entered in Delhi and that no transaction took place between the parties after the receipt of Rs. 55,234/- on 11.04.2017 as stated in Ex. PW1/10. He voluntarily stated that services were provided by the plaintiff, however, no payment was made by the defendant. They used to send invoices to the defendant through mail & courier. He admitted to be correct that no email or courier has been filed indicating the delivery of invoices to the defendant. He denied the suggestion that Ex. PW1/3 to Ex. PW1/9 are not the invoices. He admitted to be correct that Ex. PW1/3 to Ex. PW1/9 bear no acknowledgement or acceptance by the defendant and tried to explain by voluntarily stating that the said invoices are the office copy, therefore, no acknowledgement is on the same. The orders were placed by the defendant through on-line portal. He has not placed on record any document qua placing of orders by the defendant. Voluntarily stated that details of orders are mentioned in the invoices filed on record. This witness further admitted to be correct that no documents have been placed and proof of calls indicating that plaintiff has requested the defendant to make statement as stated in Para No. 11 of his affidavit. During further cross examination, he admitted that plaintiff is an income tax assessee and he has not CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 7 of 16 filed any income tax record indicating that the amount claimed by way of present suit is receivable by the plaintiff. He further stated that plaintiff delivered courier / parcels of defendants to the customers of the defendants. And further, admitted to be correct that no proof of delivery of above said courier / parcels to the customers of defendant has been filed on record. He denied the suggestion put-forth during cross examination that the statement of account Ex. PW1/10 is a manipulated and forged document or that no dues are payable by the defendant to the plaintiff.
12. Per contra, the defendant did not adduce any evidence.
13. It is argued by Ld. Counsel for the plaintiff that the plaintiff has proved agreement dated 13.02.2017 Ex. PW1/2. Even otherwise, the defendant duly admitted the execution of the said agreement, therefore, the existence of business relationship between the plaintiff and the defendant is an admitted one. It is further submitted that the plaintiff had relied upon documents / invoices Ex. PW1/3 to Ex. PW1/9 respectively raised by it for the services availed by the defendant and the defendant never raised any objection / discrepancy in the invoices raised. The defendant has miserably failed to rebut the case of the plaintiff rather the defendant in entire cross examination of PW1 only suggested that the acknowledgement / receipt of issuance of invoices were not placed on record. Mere suggestion of not placing on record the acknowledgement does not ipso facto proved that the plaintiff did CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 8 of 16 not issue the invoices. Since, the defendant failed to lead any evidence and since the defendant failed to rebut and deny the deposition of PW1 regarding existence and issuance of said invoices, it cannot be assumed or presumed that the invoices were never issued by the plaintiff to the defendant. It is further contended that the allegations of the defendant are mere the bald and incorrect averments to evade liability owned towards the plaintiff. The defendant has failed to file any single document in support of its pleadings that services were not upto its satisfaction and further the defendant has not produced any receipt of payment allegedly made by it. It is submitted that in absence of any such statement on oath by the defendant, it is unlikely that defendant has made all payments to the plaintiff or the defendant is not in receipt of the invoices or the said invoices are forged and fabricated. An adverse inference must be drawn against the defendant on the basis of principles contained in illustration (g) of Section 114 of Evidence Act, for not having entered the witness box and presented itself for cross examination.
14. On the other hand, it is argued by Ld. Counsel for the defendant that the plaintiff has failed to prove by way of positive evidence, the alleged placing of order by the defendant; the alleged supplied / delivery of couriers / parcels on behalf of defendant, the reading and delivery of alleged invoices or statement of account to the defendant on the basis of which, the present suit is filed and that any acknowledgement / acceptance on behalf of defendant to CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 9 of 16 any liabilities. It is further argued that it is settled law that plaintiff has to prove its case and in a suit for recovery of money in respect of goods supplied, plaintiff is required to prove that goods / invoices were delivered to the defendant by the plaintiff and once, it is established, the goods / invoices were delivered, only then, corroborative evidence in the form of statement of account can be looked into. It is further argued that mere a raising of a bill and reflecting the same in the statement of account is not good evidence without establishing delivery of goods under the bills. It is further argued that PW1, Sh. Uday Mukherjee, AR of the plaintiff during his examination has admitted that he was not present during the negotiations between the parties at the time of agreement. This witness showed ignorance as to whether any transaction under the agreement took place in Delhi. PW1 stated that the defendant placed the order against the alleged invoices Ex. PW1/3 to Ex. PW1/9 through the plaintiff's online portal, however, admitted that there is no document on record establishing the placing of order by the defendant. He also deposed that the plaintiff used to send the invoices through the defendant via mail and courier, however, admitted that there is no document on record of mail or courier indicating delivery of invoices to the defendant. This witness admitted that there is no acknowledgement or acceptance of alleged invoices on behalf of defendant. PW1 has also stated that plaintiff delivered courier / parcels of the defendant to the customers of defendant, however, admitted that there is no document on record indicating the delivery of alleged courier / CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 10 of 16 parcels to the customers of the defendant allegedly undertaken by the plaintiff on behalf of defendant and for the agreement dated 13.02.2017. It is vehemently argued that the plaintiff has failed to discharge its onus to prove its case and the suit of the plaintiff is liable to be dismissed.
15. I have considered arguments advanced by Ld. Counsel for the parties and gone through the documents on record.
16. On careful analysis of the pleadings as well as oral & documentary evidence on record show that the case of plaintiff is that an Courier Service Agreement Ex. PW1/2 was entered into with the defendant for providing the services by the plaintiff. The claim of the plaintiff for recovery of Rs. 13,38,762/- is hinging upon invoices / bills Ex. PW1/3 to Ex. PW1/9 respectively, statement of account Ex. PW1/10 and chart calculation Ex. PW1/14. A perusal of above documents show that the details for recovery of Rs. 13,38,762/- have been provided by furnishing chart calculation Ex. PW1/15, which on perusal show that plaintiff claims 07 unpaid invoices for the period April to May 2017 totaling to Rs. 9,17,606/-. In this document Ex. PW1/15, the interest amount has been calculated as Rs. 4,21,157/- based on number of days (period) for which the amount of invoices had remained unpaid. PW1 in his deposition has also relied upon invoices Ex. PW1/3 to Ex. PW1/9 of the following amount:
CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 11 of 16 SL Customer Inv No. Inv date Month Inv Type Inv Amt Name 1 Befikarr DN 14-Apr-17 Apr-17 Every Tax 3,739.27 Ecommerce 201704/149 LLP
2. Befikarr OC4377 29-Apr-17 Apr-17 Octroi 3,364.00 Ecommerce LLP 3 Befikarr DN 30-Apr-17 Apr-17 Entry Tax 36,922.89 Ecommerce 201704/310 LLP 4 Befikarr 8800 01-May-17 Apr-17 Freight 8,39,070.04 Ecommerce LLP
5. Befikarr DN 16-May-17 May-17 Entry Tax 4,002.57 Ecommerce 201705/296 LLP
6. Befikarr DN 29-May-17 May-17 Entry Tax 356.14 Ecommerce 201705/642 LLP 7 Befikarr 9218 01-Jun-17 May-17 Freight 30,151.34 Ecommerce LLP 9,17,606
17. Further, a perusal of ledger account Ex. PW1/10 shows that larger entries are dated 01.05.2017 for Rs. 8,39,074/- and dated 01.06.2017 for Rs. 30,151/-. The description of these entries in ledger account has been mentioned as Sales-Cash on Delivery (COD), however, a perusal of corresponding entries Ex. PW1/8 for Rs. 8,39,074/- has different items showing summary of charges such as freight, fuel surcharge, special delivery location, reverse pickup, COD applied, COD reversed. The same is for the Ex. PW1/9 being the invoice of Rs. 30151/-. This also had the similar description. The defendant has though did not lead any evidence CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 12 of 16 but in the written statement alleged that no invoice was ever received from the plaintiff and all the payments due and payable to the plaintiff has already been paid and no legal outstanding dues are liable to be paid by the defendant. It is well settled law that in a civil suit, the plaintiff has to prove its case and in a suit for recovery of money in respect of services supplied, the plaintiff has to lead positive evidence as well as cogent & convincing evidence to establish its case. It is equally settled that mere raising a bill and reflecting the same in statement of account is not good evidence without establishing delivery of goods under the bill. (Harish Manusukhani Vs. Ashok Jain, 2009 (109) DRJ 126). In the case in hand, as discussed in preceding paragraphs, the plaintiff in support has examined Sh. Uday as PW1, who was extensively cross examined by the defendant. This witness has admitted in cross examination that plaintiff has not placed on record any email / courier indicating delivery of invoices to the defendant. Further, he has admitted that invoice Ex. PW1/3 to Ex. PW1/9 bear no acknowledgement or acceptance by the defendant. He further shown his ignorance as to whether statement of account Ex. PW1/10 and interest calculation sheet Ex.PW1/15 was ever sent to the defendant. He also admitted that there is no document on record with respect to the income tax record indicating that amount claimed by way of present suit is receivable by the plaintiff from the defendant. Though, the witness has stated that plaintiff delivered couriers / parcels of the defendant to the customers of the defendant, however, admitted that there is no document on CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 13 of 16 record indicating the delivery of alleged couriers / parcels to the customers of the defendant allegedly undertaken by the plaintiff on behalf of defendant as per agreement dated 13.02.2017.
18. Apart from the above, a perusal of Ex. PW1/3 reveals that it is an aggregation of 69 entries, which contains order number, origin and destination allegedly for which entry tax was paid as per the challans enclosed, which means that the plaintiff was in possession of the original documents in the form of order and challans, which could connect the transaction with the defendant. For example for order no. 7018 at Srl. No. 21, no such document have been filed not only for this invoice but for all the invoices Ex. PW1/4, Ex. PW1/5, Ex. PW1/6 & Ex. PW1/7. It is trite to say that the plaintiff has to stand on his own legs and if on the fact he has not been able to prove his case, no weakness in the case of defendant can help him. The burden of proving the facts rests on the person who asserts a claim in the dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit eiqui agit, "the necessity of proof always lies with the person, who lays charges". Here in the present case, the plaintiff has failed to establish that the services have been provided to the defendant, which have not been paid. Even though, no evidence has been led by the defendant with support his contention but yet the plaintiff has also not rebutted the same by showing reliable documents indicating placing of order by the defendant or delivery of courier / parcel to the customers of the defendant. The witness examined by CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 14 of 16 the plaintiff has fallen short of evidence because this witness did not support the plaintiff in respect of necessary ingredients of transactions as discussed above. The plaintiff has failed to discharge his onus.
19. In view of above discussion, since, the plaintiff could not establish its case, the plaintiff is not entitled for recovery of Rs. 13,38,762/- as claimed from the defendant, this issue is accordingly adjudicated against the plaintiff.
Issue no.2- Whether plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
20. Since, issue no. 1 is proved against the plaintiff, the plaintiff is not entitled for any interest.
Issue no.3- Whether the suit is barred being beyond the territorial jurisdiction of this court? OPD.
21. The onus to prove this issue was upon the defendant. This issue has not been strongly pressed, therefore, this issue is decided accordingly.
Issue no.4- Relief.
22. In view of findings given in issue no. 1, the plaintiff has failed to establish its own case, the suit of the plaintiff is hereby dismissed. Parties are left to bear their own costs.
CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 15 of 16
23. Decree sheet be prepared accordingly.
Digitally signed24. File be consigned to Record room. by VINEETA VINEETA GOYAL Date:
GOYAL 2023.03.13 16:36:21 +0530 Pronounced in the open (VINEETA GOYAL) Court on 13.03.2023 District Judge (Commercial)-03 Patiala House Courts New Delhi CS(Comm) 104/19 Ecom Express Limited v/s Befikarr Ecommerce LLP and Anr Page 16 of 16