Delhi District Court
Anil Jain vs Mayuri Mahinderu on 14 March, 2026
IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL COURT)-02, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
CS (COMM.) No. 144/2023
CNR NO.: DLSW01-001738-2023
IN THE MATTER OF: -
Anil Jain
S/o Late Shri S.S Jain
Office at: B-l/30, Second Floor,
Janakpuri, Delhi - 110058.
. . . . . Plaintiff
Versus
1. Mayuri Mahinderu
2. Shivaay Kapoor
Both R/o Flat No 903, Ground Floor,
Near Dashmesh Hospital, Shiv Nagar Extension,
New Delhi-58.
. . . . . Defendants
SUIT FOR RECOVERY OF RS. 12,07,244/-
(RUPEES TWELVE LAKHS SEVEN THOUSAND TWO
HUNDRED FORTY-FOUR) ALONG WITH INTEREST
Date of Institution : 22.03.2023
Date of reserving Judgment : 13.02.2026
Date of pronouncement of Judgment : 14.03.2026
AND
CS (Comm.) No.: 144/2023
&
Counter Claim No. 38/2023 Page 1 of 34
Counter Claim No. 38/2023
CNR NO.: DLSW01-010355-2023
IN THE MATTER OF: -
Mayuri Mahinderu
Proprietor of M/s Radhey Krishna Exclusive
R/o Flat No 903, Ground Floor,
Near Dashmesh Hospital, Shiv Nagar Extension,
New Delhi-58.
. . . . . Counter-Claimant
Versus
Anil Jain
S/o Late Shri S.S Jain
Office at: B-l/30, Second Floor,
Janakpuri, Delhi - 110058.
. . . . . Non Counter-Claimant
COUNTER CLAIM FOR RECOVERY OF
RS. 1,33,76,764.90/-
(RUPEES ONE CRORE THIRTY THREE LAKHS
SEVENTY SIX THOUSAND SEVEN HUNDRED SIXTY
FOUR & NINETY PAISE ONLY) ALONG WITH
INTEREST
Date of Institution : 25.10.2023
Date of reserving Judgment : 13.02.2026
Date of pronouncement of Judgment : 14.03.2026
CS (Comm.) No.: 144/2023
&
Counter Claim No. 38/2023 Page 2 of 34
C O M M O N J U D G M E N T :-
1. Vide this common judgment, I shall decide the present suit filed by the plaintiff against the above named defendants bearing CS (COMM) No. 144/2023 for recovery of Rs. 12,07,244/- along with future interest @ 18% per annum; and the counter claim filed by the counter claimant/defendant no. 1 against the non-counter claimant/plaintiff bearing Counter Claim No. 38/2023 for recovery of Rs. 1,33,76,764.90/- along with interest @ 18 % per annum.
FACTS OF THE CASE IN CIVIL SUIT BEARING CS NO.144/2023
2. At the outset, it may be noted that the initially the plaintiff has filed the summary suit under Order XXXVII CPC against the defendants, however on the statement of the Ld. Counsel for the plaintiff, the present suit was treated as an ordinary suit vide order dated 04.05.2023.
3. The case of the plaintiff as set out in the plaint, in nutshell, is that he is in the business of supplying medical devices/equipments. The defendant no. 1 worked on behalf of the defendant no. 2 in the present dispute. The plaintiff and the defendant were acquainted with each other for a long time. The defendant having impressed by the impressive clientele of the plaintiff approached the plaintiff with a proposal to start a business of supplying medical devices/equipments together. Both the parties mutually agreed that the plaintiff would bring CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 3 of 34 the client and the defendant would supply the medical device/equipment to that client; and the whole payment would be received by the defendant in their account and the defendant on release of payment would pay 10% of the bill amount as commission to the plaintiff. Accordingly, the plaintiff shared his client list with the defendant so that the defendant can easily approach them for delivery of consignment. It is stated that everything was going smoothly but after a period of time, the the behavior of the defendant changed and the defendant started ignoring the plaintiff and his clients. The defendant deliberately delayed in clearing the payment of commission earned by the plaintiff against multiple/pending bills, details of which are given in para no. 9 of the plaint totaling to Rs. 1,70,72,441/-. It is stated that the commission amount payable to the plaintiff came to Rs. 17,07,244/- on the aforesaid pending bills totaling to Rs. 1,70,72,441/-, out of which Rs. 5,00,000/- was deposited in the account of the wife of the plaintiff, namely, Ms. Sarita from the account of Radhey Krishna Exclusive and still an amount of Rs. 12,07,244/- is outstanding against the defendant which the defendant failed to pay despite repeated requests and service of legal notice. It is also stated that the pre-suit mediation has also failed between the parties as the defendant did not attend the proceedings despite receipt of notice. Hence, the present suit.
4. On being served with the summons of the suit, the defendant no. 1 has contested the suit by filing written statement in which a preliminary objection has been taken CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 4 of 34 regarding territorial jurisdiction of this Court. It is stated that the defendants are working for gain in Shiv Nagar Extension, which comes under Hari Nagar Police Station which falls within the territorial jurisdiction of Tis Hazari Courts, West Delhi and hence this Court has no territorial jurisdiction to try and entertain the present suit.
5. In para-wise reply, it is contended that the plaintiff has not approached the Court with clean hands and has concealed the fact that a FIR No. 249/2021 was lodged against him at PS Badli, under Section 420/269/188/120B/34 IPC and Section 3 of Epidemic Diseases Act, 1897 on the allegation of selling oxygen concentrations at exorbitant rates of Rs. 1 lakh/Rs 1.20 lakh per oxygen concentrator which he purchased from the defendant @ about Rs. 30,000/- per oxygen concentrator. It is denied that the defendant no. 1 had prior acquaintance with the plaintiff. It is stated that the plaintiff entered into a business relationship with the defendant no. 1 through defendant no. 2 Mr. Shivaay Kapoor, Business Associate of M/s Radhey Krishna Exclusive and due to relationship of plaintiff with the defendant no. 2, on representation of the plaintiff, the business got started with the firm of the defendant. It is denied that any commission/agency was agreed with the plaintiff in any manner. It is stated that the plaintiff used to purchase Covid items/Medical devices as per the demand of his customers from M/s Radhey Krishna Exclusive on principal to principal basis. The sale/purchase invoices were accordingly issued on every purchase to the plaintiff. The firm of the defendant was working CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 5 of 34 on a very less margin and there is no question of paying commission as alleged by the plaintiff nor there was any such oral agreement with regard to the commission between the parties. It is contended that no such list of client details was given/shared with the defendant as alleged by the plaintiff. It is stated that the plaintiff used to purchase the material from proprietorship firm of the defendant and has taken part delivery himself also from the office of the defendant and some material was directly supplied to his office as per his instructions. The defendant no. 1 has denied that any outstanding liability of Rs. 12,07,244/- is due against her towards commission payable to the plaintiff. It is stated that, on the contrary, it is the plaintiff who is liable to make the due payment to M/s Radhey Krishna Exclusive for the goods purchased from the firm and to avoid the same, a false and fictitious story has been concocted.
6. The defendant no. 1 has denied to have deposited Rs. 5,00,000/- in the account of the wife of the plaintiff as commission payable to the plaintiff. It is stated that in the month of March 2021, the plaintiff and his wife, namely, Ms. Sarita Jain approached the defendant for friendly loan of Rs. 5,00,000/- for personal use through defendant no. 2 Mr. Shivaay Kapoor, Associate of M/s Radhey Krishna Exclusive. On 30.03.2021, a friendly loan of Rs. 5,00,000/- was given from the account of M/s Radhey Krishna Exclusive to Ms. Sartia Jain's Account in good faith/trust and the plaintiff and his wife assured to return the friendly loan within 2-3 months, but they failed to return the same till date despite CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 6 of 34 making several requests to them. It is further stated that a legal notice dated 04.07.2022 was duly served by the defendant no. 1 and her husband demanding Rs. 5 lakh from the plaintiff and his wife, but they did not refund the same.
7. It is further stated that the plaintiff has also supplied goods to M/s Radhey Krishna Exclusive against advance, however despite payment and notice, invoices have not been issued which is creating problem in GST return. A payment of Rs. 8,10,466/- was made for purchase of material from the plaintiff, however no invoice has been issued despite request. Further, an advance payment of Rs. 4,80,000/- was paid in advance for purchase of pulse Oximeter Black Silicon, however neither goods have been delivered nor amount has been refunded. The other contents of the plaint are stated to be wrong and denied and the defendant no. 1 has prayed for dismissal of the suit.
8. The plaintiff has filed replication to the written statement filed by the defendant no. 1 wherein averments made in the plaint have been reiterated and reaffirmed and those made in the written statement have been controverted.
9. The defendant no. 2 despite service of summons of the suit failed to file the written statement within prescribed period of 30 days or even within the extended period of 120 days and hence his right to file the written statement was closed vide order dated 25.10.2023. Since the defendant no. 2 also failed to appear in the matter, he was proceeded ex-parte vide order CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 7 of 34 dated 23.11.2023.
FACTS OF THE CASE IN COUNTER CLAIM BEARING COUNTER CLAIM NO. 38/2023
10. In the counter claim, the counter claimant/defendant no. 1 has almost reiterated the averments made in the written statement filed by her in suit filed by the plaintiff bearing CS (COMM) No. 144/23. It is averred that the counter-claimant is the proprietor of M/s Radhey Krishna Exclusive which is in the business of trading of Covid items, Sanitizer, Gloves, Pulse Oximeter and Oxigen Concentrator etc. and Mr. Shivaay Kapoor is the associate of M/s Radhey Krishna Exclusive who was working along with her. It is further averred that the respondent/plaintiff started business with M/s Radhey Krishna Exclusive through Mr. Shivaay Kapoor and he used to purchase Covid Items/ Medical Devices from M/s Radhey Krishna Exclusive, but he has not paid the due payment to M/s Radhey Krishna Exclusive. It is reiterated that the counter-claimant has also purchased some material from the respondent/plaintiff and has made payment of Rs. 8,10,466/- on 22.02.2021, however no invoice has been given to the counter-claimant & M/s Radhey Krishna Exclusive despite request and the same is creating problem in GST. Further, an advance payment of Rs. 4,80,000/- was paid for purchase of pulse Oximeter Black Silicon, however neither goods have been delivered nor amount has been refunded. The counter-claimant has further reiterated the factum of advancement of friendly loan of Rs. 5,00,000/- to CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 8 of 34 the wife of non-counter claimant on 30.03.2021 on good faith which was not returned by respondent/plaintiff and his wife till date.
11. The counter-claimant/defendant no. 1 has not disputed the invoices as shown by the non-counter claimant/plaintiff in suit filed by him in para no. 9 of the plaint, however it is contended that the said invoices were raised by the counter- claimant upon the respondent/plaintiff against supply of Portable Oxygen Concentrator. It is alleged that the respondent/plaintiff made part payments against the said invoices from time to time through third party which were duly reflected in the accounts/ledger maintained by the counter claimant. The last payment of Rs. 1,10,000/- was made by the respondent/plaintiff on 27.04.2021. It is stated that the third party payments were accepted at the request of the plaintiff. It is further stated that as per the accounts of the firm of the counter-claimant M/s Radhe Krishna Exclusive, the respondent/plaintiff is liable to make a total payment of Rs. 1,33,76,764.90/-, but instead of making the payment of due balance to the counter-claimant, the respondent/plaintiff sent a frivolous and fabricated notice dated 13.06.2022 asking commission for the goods supplied by the counter-claimant. It is stated that the transaction between the parties was of sale and purchase of goods and there was no oral agreement with regard to commission from goods supplied by the counter-claimant to the respondent/plaintiff. The counter-claimant on 04.07.2022, sent reply cum notice to the legal notice of the plaintiff dated CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 9 of 34 13.06.2022 demanding payment of due amount of Rs. 1,33,76,764.90/- with interest and friendly loan of Rs. 5,00,000/- and asking to provide bills against the purchased items from the plaintiff, but to no avail.
12. On these facts, the counter claimant/defendant no. 1 has prayed for passing a decree of recovery of Rs. 1,33,76,764.90/- in her favour and against the non-counter claimant/plaintiff along with interest thereon @ 18% per annum from 30.04.2021 till realization.
13. The Non-Counter Claimant/plaintiff has filed written statement to the counter claim denying the averments made in the counter claim and reiterating the averments made in the plaint of the suit filed by him. He has prayed for dismissal of the counter claim and passing a decree of recovery of Rs.12,07,244/- in his favour and against the counter claimant/defendant no. 1.
ISSUES:
14. It is pertinent to mention here that common issues were framed in both the cases in the main suit bearing CS (COMM) No. 114/23, from the pleadings of the parties, vide order dated 08.05.2024. The common issues framed in both the cases for adjudication are as under: -
1. Whether plaintiff is entitled for recovery of Rs. 12,07,244/-
from the defendants? OPP.
2. Whether plaintiff is entitled for any interest? If yes, then at CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 10 of 34 what rate and for what period? (OPP).
3. Whether this court does not have territorial jurisdiction to try this case? (OPD-1)
4. Whether counter-claimant/defendant no. 1 is entitled for recovery of Rs. 1,33,76,764.90/- from the plaintiff? (OPD-1).
5. Whether counter-claimant/defendant no. 1 is entitled for any interest? If yes, then at what rate and for what period? OPD-1.
6. Relief EVIDENCE LED BY THE PARTIES
15. It may be noted that evidence in both the cases was recorded in the main suit bearing CS (COMM) No. 114/23.
16. In support of his case, the plaintiff/non counter-claimant has examined himself as PW-1 and led his evidence by way of affidavit Ex.PW1/A wherein he has deposed in terms of the averments made in the plaint. He has relied upon the following documents:-
Sr. Details of documents Exhibit
No.
1 Copy of his Aadhar Card Ex. PW1/1
2 Copy of Client's database Ex. PW1/2
3. Copy of bills and ledger account Ex. PW1/3 (Colly)
4. Copy of legal notice along with Ex. PW1/4 (Colly) its reply dated 04.07.2022
17. On the other hand, the counter claimant/defendant no. 1 CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 11 of 34 has failed to lead evidence in support of her defence in the main suit and her claim in the counter claim despite availing several opportunities. Hence, Defence Evidence qua the defendant no. 1 was closed vide order dated 28.11.2025.
18. I have heard the Ld. Counsel for the plaintiff and perused the record. The defendant no. 1 neither addressed the oral arguments nor filed any written arguments despite granting several opportunities.
FINDINGS AND ANALYSIS
19. On the basis of material available on record and the evidence led by the plaintiff, my issue-wise findings are as under:-
Issue No.1 & 4 Whether plaintiff is entitled for recovery of Rs. 12,07,244/-
from the defendants ?
& Whether counter-claimant/defendant no. 1 is entitled for recovery of Rs. 1,33,76,764.90/- from the plaintiff ?
20. Both the issues are taken up together for discussion being interlinked and discussion thereupon is going to be common. The onus to prove Issue No. 1 was placed upon the plaintiff and the onus to prove Issue No. 4 was placed upon the defendant no. 1/counter claimant.
21. The facts of the case are within the narrow compass. As per the case of the plaintiff, he is in the business of supplying CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 12 of 34 medical devices and the defendant no. 1 who is running her business in the name and style of M/s Radhe Krishna Exclusive is also in the same business and they were acquainted with each other. The plaintiff had huge clientele base and having impressed by the said clientele base of the plaintiff, the defendant approached the plaintiff with an offer to supply the medical equipments through the plaintiff as per consignee sales for which the plaintiff would get 10% of the total consideration/payment after the consignee sale is realized. It was an oral agreement between the parties, pursuant to which the plaintiff shared his client details with the defendant no. 1 and the defendant no. 1 supplied the medical equipments to the clients of the plaintiff worth Rs. 1,70,72,441/- against the invoices, part of Ex. PW1/3 (Colly). It is further case of the plaintiff that his commission on the invoices/bills amounting to Rs. 1,70,72,441/- comes to Rs. 17,07,244/- being 10% of total bill amount as mutually agreed upon between the parties, out of which payment of only Rs. 5,00,000/- was released by the defendant no. 1 in the account of wife of the plaintiff and Rs. 12,07,244/- is still outstanding against the defendants towards the total commission amount of Rs. 17,07,244/-.
22. While the defendant no. 1 has denied any such oral agreement of agency with the plaintiff by which she had agreed to pay 10% of commission of total sales done by her. On the contrary, the defendant no. 1 has claimed that there were transactions of sale/purchase with the plaintiff. She has claimed that the plaintiff had purchased medical equipments from her CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 13 of 34 for which she raised invoices upon the plaintiff totaling to amount of Rs.1,70,72,441/- against which the plaintiff made part payments and after adjusting the payments made by the plaintiff, an outstanding balance of Rs. 1,33,76,764.90/- is pending against the plaintiff. The defendant has also denied to have deposited Rs. 5,00,000/- in the bank account of wife of the plaintiff towards any commission and contended that the said amount was given as friendly loan to wife of the plaintiff which the plaintiff and his wife failed to return. The defendant has also filed a counter claim against the plaintiff/ non counter claimant for recovery of outstanding liability of Rs.1,33,76,764.90/- against the supply of medical equipments to the plaintiff on similar averments made by her in the written statement.
23. As per own case of the plaintiff, there was no written contract between the parties regarding the agency by which the plaintiff was to get 10% of total consideration amount towards consignee sales done by the defendant no. 1. The plaintiff when appeared in the witness box as PW-1 has also categorically stated in his cross-examination that there was no written agreement with the defendant with regard to agency and volunteered that there was oral agreement.
24. In view of the above, since it is the plaintiff who has taken plea of oral agreement entered between him and the defendant no. 1, which is strongly refuted by the defendant no. 1, the onus was heavy upon the plaintiff to prove the said oral agreement. Now, it has to be seen as to whether the CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 14 of 34 plaintiff has been able to prove any such oral agreement or not from the evidence led by him and the attending circumstances.
25. The plaintiff has claimed that he was not paid commission by the defendant no.1 against the total consignment sales which was for an amount of Rs. 1,70,72,441/- and he is entitled to get 10% of the same i.e. Rs. 17,07,244/- as commission. He has placed on record the tax invoices showing sales done by the defendant no. 1 totaling to Rs. 1,70,72,441/-, which are part of Ex. PW1/3 (Colly). A perusal of the said invoices, part of Ex. PW1/3 (Colly), would show that there are total 05 invoices bearing Invoice No. 73 dated 21.04.2021 for an amount of Rs. 5,60,000/-; Invoice No. 81 dated 24.04.2021 for an amount of Rs. 22,40,000/-, Invoice No. 93 dated 24.04.2021 for an amount of Rs. 28,00,000/-, Invoice No. 102 dated 24.04.2021 for an amount of Rs. 97,440/- and Invoice No. 129 dated 30.04.2021 for an amount of Rs. 1,13,75,001/-; and all these tax invoices have been raised by M/s Radhe Krishna Exclusive, the proprietorship firm of the defendant no. 1, upon the plaintiff. These sales invoices in no way suggest that there were consignment sales and the plaintiff against whom these invoices were issued was only an agent through whom the sales were done and the buyer/consignee was someone else. Rather these sales invoices show a simple relationship of seller and buyer, where the defendant no. 1 was the seller and the plaintiff was a buyer. Even the sales invoices mention the plaintiff's GST number. The plaintiff at no point of time raised any objections to said invoices, part of Ex. PW1/3 (Colly), complaining that CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 15 of 34 the same have been wrongly issued in his name. Though in the cross-examination, PW-1 (the plaintiff) stated that he objected to the bills, part of Ex. PW1/3 (Colly). However, when he was asked to show any objections with regard to the aforesaid bills, he was not able to find the objections from the record. He denied the suggestion that since there was no objection done by him to the bills, part of Ex. PW 1/3 (Colly), therefore the same was not on record. He voluntarily stated that the bills were not received by him. However, this voluntarily statement of the plaintiff is false and malafide on the face of it. The plaintiff himself has placed the said sales invoices on record and exhibited the same during his deposition, which are part of Ex. PW1/3 (Colly). Moreover, the said invoices bear the stamp of the plaintiff in token of acceptance of the same. Therefore, the plaintiff cannot be heard saying that he has not received the said sales invoices.
26. Admittedly, the defendant no. 1 has got served a notice under Order 12 Rule 8 CPC upon the plaintiff asking him to produce certain documents mentioned in the said notice. The said notice was duly received by the plaintiff, which fact he admitted during his cross-examination, when he was shown the said notice. The said notice was exhibited as Ex. PW1/D1. Pursuant to the notice Ex.PW1/D1, the plaintiff produced some of the documents sought by the defendant no. 1 which are Ex.PW1/D2 (Colly), Ex. PW1/D3 (Colly) and Ex. PW1/D4 (Colly).
CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 16 of 34
27. A perusal of documents Ex. PW1/D2 (Colly) shows that the same, inter alia, contains an FIR No. 0249/2021 registered at PS Samaipur Badli for the offences punishable under Section 420/269/188/120B/34 IPC, under Section 3 of Epidemic Diseases Act and under Section 3/7 of Essential Commodities Act, 1955, against some accused persons on the allegation of black marketing of Oxygen Concentrator machine used for treatment of COVID-19 on a high scale. Pursuant to the said FIR, investigation was carried out by the police and after completion of investigation, charge sheet Ex. PW1/D3 (Colly) was filed against the accused persons, wherein the name of the plaintiff is find mentioned as one of the accused. The said charge-sheet contains, inter alia, a seizure memo with regard to recovery of oxygen concentrators from the possession of the plaintiff, similar copy of sale invoices raised by defendant no. 1 upon the plaintiff which have been filed in the present case as part of Ex. PW1/3 (Colly), statement of witnesses and most importantly order dated 02.05.2021 passed by the Duty MM on an application for release of oxygen concentrators on superdari. An application under Section 439 Cr.PC. was also moved by the plaintiff for grant of regular bail which is part of Ex.PW1/D4 (Colly). Order on the said bail application is contained in document Ex.PW1/D2 (Colly). The said document also contains the copy of invoices showing sale of oxygen concentrators by the plaintiff to various different persons.
28. Since this court is not aware about fate of the above mentioned charge sheet whether it has resulted in conviction or CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 17 of 34 acquittal of the plaintiff, reliance is not made on the contents of FIR, charge sheet and seizure memo regarding oxygen concentrators recovered from the possession of the plaintiff. However, this Court can very well place reliance on and consider the admitted documents filed in the said charge-sheet i.e. the bail application moved by the plaintiff and another application for release of articles on superdari.
29. As noted above, the plaintiff has moved an application for grant of regular bail under Section 439 Cr.P.C. in the aforesaid criminal proceedings, which is part of Ex.PW1/D4 (Colly) on which order dated 17.05.2021 contained in Ex. PW1/D2 (Colly) was passed by the Ld. Vacation Judge, North District, Rohini Courts, New Delhi. The said order reveals that the Ld. Counsel for the accused (plaintiff herein) while arguing on the bail application had submitted that the accused had purchased the oxygen concentrators against the invoices and also sold some of the oxygen concentrators on marginal profit of about Rs. 3000/- per piece.
30. Similarly, there is an order dated 02.05.2021 passed by Duty MM, North District, Rohini Courts, New Delhi in the aforesaid charge sheet contained in Ex. PW1/D-3 (Colly) on an application moved by the Investigating Officer of the said case for release of case property. The said order reveals that the application was moved for release of 115 Oxygen Concentrators, out of which 45 Oxygen Concentrators were recovered from the possession of accused Anil Jain (plaintiff CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 18 of 34 herein) and rest were recovered from the possession of co- accused persons during investigation and Mr. S.K. Pandey, the Ld Counsel for the accused persons had submitted that the accused persons (which also includes the plaintiff herein) are the rightful owner of the seized equipment and are dealing with such equipments.
31. These submissions made by the Ld. Counsel appearing for the plaintiff in the aforesaid criminal case coupled with the fact that the copy of similar invoices which are filed in the present case as part of Ex. PW1/3 (Colly) have also been filed in the said criminal proceedings of which reference was made by the Ld. Counsel for the plaintiff while arguing the bail application of the plaintiff leads to an irresistible conclusion that it was simply a case of sale/purchase of oxygen concentrators where the plaintiff as buyer had purchased the medical equipments from the defendant no. 1 vide invoices contained in Ex.PW 1/3 (Colly) and not the consignment sales on commission basis as pleaded by the plaintiff.
32. The factum of seizure of oxygen concentrators as mentioned in charge sheet Ex. PW1/D3 (Colly) has not been disputed by the plaintiff. In his cross-examination, PW-1 (the plaintiff) has categorically stated that the police has seized the oxygen concentrators from them in the charge-sheet Ex.PW1/D3(Colly). Though he could not tell the exact number of oxygen concentrators but he stated that there would be about 150 oxygen concentrators which were seized from them.
CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 19 of 34
33. PW-1 during his further cross-examination though has stated that he was not selling the oxygen concentrator. He voluntarily stated that he was agent of defendant and his job was to arrange the sale of oxygen concentrators of the defendant to his customers. If that was the case, then it is not understandable as to why the invoices were raised by the plaintiff to different persons as noted herein above which clearly show sale of oxygen concentrators by the plaintiff to those persons. Further, if the oxygen concentrators were arranged by the plaintiff as an agent of defendant no. 1 and not possessed by him, then there would have been no occasion for seizure of 150 oxygen concentrators by the police from the possession of the accused persons including the plaintiff as also admitted by the plaintiff during his cross-examination.
34. It is also to be noted that PW-1 (the plaintiff) during his further cross-examination tried to feign ignorance with regard to contents of bail application and application for release of oxygen concentrator on superdari. He could not say whether an application for release of the seized oxygen concentrators on superdari was moved by him in the concerned Magistrate Court, but he stated that the Magistrate passed an order for release of the oxygen concentrators to be taken by him but he refused to take the same. He voluntarily stated that as they belonged to Sunil Mahindru and Mayuri Mahindru. He did not remember that he has written to the court that the oxygen concentrators do not belong to him and belong to Sunil Mahindru and Mayuri Mahindru. He was asked a question whether it is correct that in CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 20 of 34 the criminal courts where the FIR case is pending against him and in the Hon'ble High Court of Delhi where he has moved bail applications for his release, he has claimed the ownership of the seized oxygen concentrators to which he replied that he was in jail at that time, so he did not know. He was again asked if he has filed any complaint against his counsel who had moved bail applications in the District courts as well as in Delhi High Court, complaining that they have falsely made averments with regard to ownership of the oxygen concentrators, to which he replied in negative. He admitted to have GST number.
35. The aforesaid statements of the plaintiff clearly show that his ignorance about contents of bail application moved on his behalf in the aforesaid criminal case and claim of ownership of the oxygen concentrators at the time of arguments on the application for release of oxygen concentrator on superdari moved by the IO/SI Paramjeet Singh in case FIR No. 249/21 PS Samaipur Badli is an attempt to wriggle out from the admission made by him regarding his ownership of oxygen concentrators and same cannot be accepted by this Court in the absence of any complaint made by the plaintiff against his counsel for making false averments. The plaintiff has not even alleged that his Counsel had filed the bail application and claimed the ownership of the seized oxygen concentrators without any instructions from him or his parokar i.e. his wife.
36. Further, from the copy of sales invoices raised by the plaintiff contained in Ex.PW1/D2 (Colly) to different persons, it CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 21 of 34 is transpired that the portable oxygen concentrators were sold by the plaintiff to different persons on 24.04.2021, 25.04.2021, 26.04.2021, 27.04.2021 and 30.04.2021. The plaintiff has also been shown to have purchased the medical equipments from the defendant no. 1 vide sales invoices dated 21.04.2021, 24.04.2021, 30.04.2021 which are part of Ex.PW1/D3 (Colly) and the same invoices have also been placed on record in the present case by the plaintiff himself, which are part of Ex.PW1/3 (Colly). Comparison of these two sets of sales invoices would show that there are different column of 'Consignee' and 'Buyer' in the invoices raised by the plaintiff to the different persons, while there is no such column of 'Consignee' and 'Buyer' in the invoices raised by the defendant no. 1 to the plaintiff. The sales invoices raised by the defendant no. 1 to the plaintiff, part of Ex. PW1/3 (Colly), only show the name of the plaintiff to whom the tax invoices have been billed in the capacity of a buyer. For this reason also, the claim of the plaintiff that there were consignment sales vide invoices, part of Ex. Pw1/3 (Colly), is not tenable.
37. There is yet another aspect of the matter.
38. As per the claim of the plaintiff, he had huge clientele base and has shared the list of his clients with the defendant no. 1 to whom the medical equipments for an amount of Rs. 1,70,72,441/- was supplied by the defendant no. 1 and he was to get 10% of the said total sales. In this regard, the plaintiff has filed the list of his clients in tabular form as CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 22 of 34 Ex. PW1/2. A perusal of the said list of clients of the plaintiff Ex. PW1/2 shows that the said list starts from Serial No. 52 to
78. There is a column of 'Date' under which dates spanning from 24.04.2021 to 27.04.2021 are written, then there is a column of 'Company name' which shows the name of the company as OXY CON., another column of 'Party Name' under which names of some people have been shown from serial number 52 to 78. There is another column of 'Billing Amount' which is blank, then there is column of 'Payment' which shows certain payments made by the clients ranging from Rs. 35,000/- to Rs. 4,00,000/- and the last column of 'Commission' which is blank.
39. Now, if the case of the plaintiff is taken to be true that the said clients as shown in Ex. PW1/2 were delivered the medical equipments by the defendant no. 1 pursuant to the invoices Ex. PW1/D3 (Colly) and, therefore, he is entitled to get 10% commission on the said sale, then the total payments made by the said customers/clients as shown in Ex. PW1/2 should have been Rs. 1,70,72,441/-. However, the total of payments as shown in Ex. PW1/2 comes to Rs. 28,85,000/- only. Therefore, it is not understandable as to how the plaintiff has taken the calculation of payment made by his clients/customers as shown in Ex. PW1/2 to the defendant no. 1 to be Rs. 1,70,72,441/-.
40. It is also to be noted that as per own case of the plaintiff, he was to get 10% of the total consideration towards sale of medical devises as commission after the consignee sale is CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 23 of 34 realized. In his chief examination filed by way of affidavit, the plaintiff has reiterated that the defendant no. 2 impressed upon robust supply chain of medical devices/equipment and made an offer wherein she will supply medical devices to the plaintiff as per the consignee sale against which he will receive 10% of the total consideration/payment which releases. The plaintiff has further deposed that he will receive that amount as commission after the consignee sale is realized. Again in para no. 6, PW-1 (the plaintiff) has reiterated that he and the defendant no. 1 orally agreed that he will land clients and the defendant no. 2 will supply the medical devices/equipment to them and it was decided that entire payments will be received by the defendant no. 2 in his account and the defendant no. 2 will pay the plaintiff 10% commission on bill amount subject to the release of payment.
41. Though during his cross-examination, PW-1 (the plaintiff) stated that the firm of defendant no.1 has received the entire payment of Rs.1,70,72,441/- against the invoices Ex.PW1/3(Colly) and in fact has received more payment than the same, by clients through cash as well as through Bank Transfer, but he did not know whether he has filed on record the proof of payment made by his customers through Bank Transfer to the defendant. He was asked to see the record and apprised about the said fact. After seeing the records, he stated that no such record has been filed.
42. Similarly, PW-1 has also stated during his cross-
CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 24 of 34 examination that he has dealt with Shailender Kumar r/o South, Vasant Vihar who had made him payment for purchase of oxygen concentrators from him. He did not remember that Rs.70,000/- was deposited by said Shailender Kumar in his account. He voluntarily stated that he has made the said payment to Mr. Sunil Mahindru. Again said, he had received the payment in cash but he did not remember whether the amount was received in Bank account or not.
43. The aforesaid statement of the plaintiff shows that he has not been able to prove that payment of Rs. 1,70,72,441/- towards the sale invoices contained in Ex. PW1/3 (Colly) was received by the defendant no. 1. Neither the plaintiff's own document Ex. PW1/2 establish the said fact nor any such bank account statement or the cash receipt record has been filed by the plaintiff to prove the actual payment received by the defendant no. 1 to the tune of Rs. 1,70,72,441/-. As it was own case of the plaintiff that he was to get 10% commission on the total sales, however subject to realization of consignment sale, but the plaintiff has miserably failed to prove even the said fact that the defendant no. 1 had received the sale amount of Rs. 1,70,72,441/- for making the plaintiff eligible for 10% commission on consignment sales. For this reason also, the plaintiff cannot be held entitled to claim the alleged commission of Rs. 17,07,244/- against the invoices for an amount of Rs. 1,70,72,441/- raised by the defendant no. 1.
44. During course of the arguments, the Ld. Counsel for the CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 25 of 34 plaintiff has argued that the ledger account statement of the plaintiff maintained by the defendant no. 1 during course of business for the period from 01.04.2021 to 31.03.2022 and filed by her along with the written statement itself substantiates the case of the plaintiff that the plaintiff was only an agent of defendant no. 1 who was to get 10 % of the total sales as commission. He submitted that the ledger account of the plaintiff maintained by the defendant no. 1 shows various payments made by those clients, whose details were shared by the plaintiff with defendant no. 1 against the sales done by the defendant no. 1 to those clients. He further submitted that otherwise there was no reason for the defendant no. 1 to credit the amount received from third parties in the account of plaintiff.
45. However, I do not find any merit in this contention of the Ld. Counsel for the plaintiff for the simple reason that if the defendant no. 1 had sold the medical equipments to the clients of the plaintiff through the plaintiff as an agent, then the sales invoices, part of Ex.PW1/3 (Colly) would have been issued in names of those clients and not in the name of the plaintiff. There is nothing on record to suggest that there was any understating between the parties that though the sale invoices would be raised in the name of the plaintiff for sale of medical equipment, but the defendant no. 1 will get the payment from third parties. Further, had the plaintiff acted only as an agent and the medical equipments were sold by the defendant no. 1 to the clients arranged by the plaintiff, then the payment collected CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 26 of 34 from those clients/third parties would not have been reflected in the account statement of the plaintiff maintained by the defendant no. 1. There was no question of making the credit entries of the payment made by third parties in the account of the plaintiff by the defendant no. 1.
46. The defendant no. 1 has also stated in her Written Statement that she received the payments from the third parties on the instructions of the plaintiff and the said payments were received from third parties on behalf of plaintiff which were credited in the account of the plaintiff.
47. Although this court is conscious of the fact that the defendant no. 1 has not entered into the witness box to prove the assertions made in the Written Statement and the documents annexed with it which also includes the ledger account statement of the plaintiff, but since the Ld. Counsel for the plaintiff has referred to the ledger account statement filed by the defendant no. 1, therefore the said aspect is being considered and dealt with by this Court.
48. The plaintiff has also claimed to have received Rs. 5 lakhs in the account of his wife from the the defendant no. 1 as commission. The plaintiff has alleged that in order to deceive him, the defendant no. 1 had transferred the said amount of Rs. 5 lakhs as commission in the account of his wife, which fact has been strongly refuted by the defendant no. 1. and she contended that the said amount of Rs. 5 lakhs was given to the wife of the plaintiff as a friendly loan on the understanding that CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 27 of 34 the same will be returned soon.
49. PW-1 (the plaintiff) during his cross-examination though could not remember that date of payment of Rs. 5 lakhs made by defendant no. 1 in the account of his wife Sarita Jain was 30.03.2021. However, the plaintiff himself has filed the ledger account statement of defendant no. 1 as part of Ex. PW1/3 (Colly) in which he has shown receipt of Rs. 5 lakhs towards advance commission in the account of his wife, namely, Sarita Jain on 30.03.2021.
50. The sales invoices, part of Ex. PW1/3 (Colly), have been issued from 21.04.2021 to 30.04.2021. The plaintiff in the ledger account of the defendant no. 1 maintained by him, part of Ex. PW1/3 (Colly), has also shown the receipt of alleged commission amount of Rs. 5 lakhs in the account of his wife in respect of 05 invoices starting from 21.04.2021 to 30.04.2021 against the total commission amount of Rs. 17,07,244/-.
51. It is not understandable as to why the defendant no. 1 would pay advance commission of Rs. 5 lakhs on 30.03.2021 when even the first invoice of Rs. 5,60,000/- was not raised. It is nowhere case of the plaintiff in the plaint that the defendant no. 1 has agreed to pay the commission in advance nor any such evidence has been led by the plaintiff. Therefore, contention of the plaintiff that the defendant no. 1 deceived him by transferring an amount of Rs. 5 lakhs in the account of his wife is without any basis.
CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 28 of 34
52. In the light of the aforesaid discussions, this court has no hesitation to hold that the plaintiff has miserably failed to prove that there was any such oral agreement between him and the defendant no. 1 by which the defendant no. 1 had agreed to sell medical equipments to the clients arranged by the plaintiff for which the plaintiff was to get 10% commission of the total consignment sales done by the defendant no. 1. The sales invoices relied upon by the plaintiff himself, part of Ex. PW1/3 (Colly), do not support the case of the plaintiff that the sales against the said invoices were the consignments sales on commission basis. Rather the said invoices show simple relationship of buyer and seller where the plaintiff was the buyer and the defendant no. 1 was the seller. The plaintiff even has failed to prove the payment received by the defendant no. 1 to the tune of Rs. 1,70,72,441/- against invoices, part of Ex.PW1/3 (Colly) and the receipt of Rs. 5 lakhs as commission in the account of his wife from the defendant no. 1. Hence, the plaintiff cannot be said entitled for recovery of Rs. 12,07,244/- towards remaining commission amount from the defendant no. 1.
53. Now, question arises that on account of failure of the plaintiff to prove his case, whether the defendant no. 1/counter claimant can be held entitled to claim amount of Rs. 1,33,76,764.90/- as claimed in the counter claim? The answer lies in negative. The counter-claimant/defendant no. 1 was required to prove her case and to stand on her own legs and she cannot be held entitled to the amount as claimed in the CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 29 of 34 counter claim simply because the plaintiff has failed to prove his case.
54. It has already been held by this Court that medical equipments were sold by the counter-claimant/defendant no. 1 to the non counter-claimant/plaintiff totaling to Rs. 1,70,72,441/- vide invoices, part of Ex.PW1/3 (Colly) which is also the case of the counter claimant/defendant no. 1 in the counter claim. However, in the entire counter claim, the counter-claimant/defendant no. 1 has not disclosed that how much amount has been paid by the non counter-claimant/plaintiff against the said invoice amount of Rs. 1,70,72,441/- and how much amount has remained outstanding against the non counter-claimant/plaintiff. She simply averred that the non counter-claimant/plaintiff made on account part payments from time to time against the sale of goods through third parties.
55. The counter-claimant/defendant no. 1 though has annexed the ledger account of the plaintiff maintained by her during course of the business for the period from 01.04.2021 to 31.03.2022 along with the Written Statement filed by her in the civil suit filed by the plaintiff bearing CS No. 144/23 showing part payments made by the plaintiff through third parties and balance outstanding amount of Rs. 1,33,76,764.90/- payable by the plaintiff after adjustment of part payments made by the plaintiff. The said ledger account has been denied by the non counter-claimant/plaintiff in his affidavit of admission/denial of CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 30 of 34 documents of the counter claimant/defendant no. 1. In view of the said denial of the said ledger account statement of the plaintiff by the non counter claimant/plaintiff, the counter- claimant/defendant no. 1 was required to prove the said ledger account on record as per law. However, the counter claimant/ defendant no. 1 has not entered into the witness box nor examined any other witness to prove the contentions made in the counter-claim and the documents annexed with the Written Statement filed by her in the civil suit of the plaintiff bearing CS No. 144/23 including the ledger account as per law despite availing several opportunities. In the absence of any evidence being led by the non-counter claimant/defendant no. 1, the ledger account relied upon by her has remained unproved on record and hence cannot be considered.
56. As such, the counter claimant/defendant no. 1 has also failed to prove her case as made out in the counter claim in the absence of any evidence being led by her. Therefore, the defendant no. 1/counter claimant also cannot be held entitled to recover an amount of Rs. 1,33,76,764.90/- as claimed in the counter claim from the plaintiff.
57. Accordingly, Issue No. 1 is decided against the plaintiff;
and Issue No. 4 is decided against the
counter-claimant/defendant no. 1.
Issue No. 2 and 5
Whether plaintiff is entitled for any interest? If yes, then at what rate and for what period?
CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 31 of 34 & Whether counter-claimant/defendant no. 1 is entitled for any interest? If yes, then at what rate and for what period?
58. The onus to prove Issue No. 2 was on the plaintiff and the onus to prove Issue No. 5 was on the counter claimant/defendant no. 1.
59. Since the plaintiff is held not entitled to recovery of Rs. 12,07,244/- from the defendants, he cannot be said to be entitled to any interest thereon. Similarly, the counter counter claimant/defendant no. 1 is held not entitled to recover Rs. 1,33,76,764/- from the plaintiff, she cannot be said to be entitled to any interest thereon.
60. Accordingly, Issue No. 2 is decided against the plaintiff and Issue No. 5 is decided against the non counter-claimant/defendant no. 1.
Issue no. 3 (Whether this court does not have territorial jurisdiction to try this case? )
61. The onus to prove this issue was placed upon the defendant no. 1.
62. The defendant no. 1 has taken a plea in her Written Statement that the defendants are working for gain in Shiv Nagar Extension which comes under Hari Nagar Police Station which falls in West District of Delhi and hence this Court has CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 32 of 34 no territorial jurisdiction to try and entertain the present suit. On the contrary, the plaintiff in the plaint has averred that the defendant works for gain within the territorial jurisdiction of this Court.
63. During course of the arguments, the Ld. Counsel for the plaintiff has also vehemently submitted that Shiv Nagar Extension where the defendant no. 1 works for gain is situated within the territorial jurisdiction of this Court.
64. First of all, the onus was upon the defendant no. 1 to prove this issue and she was required to prove that Shiv Nagar Extension where she is residing and works for gain falls in the jurisdiction of PS Hari Nagar Extension and the same is under the jurisdiction of Tis Hazari Courts. However, the defendant no. 1 has not led any evidence to prove that Shiv Nagar Extension where she works for gain falls within the territorial jurisdiction of West District. In the absence of any evidence led by the defendant no. 1, this claim of the defendant no. 1 has remained only a bald plea and it cannot be said that this court lacks territorial jurisdiction to try and entertain the present suit.
65. Furthermore, Ex.PW1/3 (Colly) relied upon by both the sides show that the tax invoices have been raised by the defendant no. 1 to the plaintiff and the address of the plaintiff falls within the territorial jurisdiction of this court. Further, the bank where the payment was to be made is situated at Janakpuri, New Delhi within the territorial jurisdiction of this Court. Therefore, by virtue of sub section (c) of Section 20 CS (Comm.) No.: 144/2023 & Counter Claim No. 38/2023 Page 33 of 34 CPC, part cause of action has also arisen within territorial jurisdiction of this Court.
66. Accordingly, this issue is decided against the defendant no. 1.
RELIEF
67. As a sequel to my findings under Issue No. 1 to 5, the suit filed by the plaintiff bearing CS No. 144/2023 and the counter claim filed by the counter-claimant/defendant no. 1 bearing Counter Claim No. 38/2023 are dismissed. No order as to cost.
68. Decree sheet be prepared accordingly.
69. A copy of this judgment be placed in Counter Claim No. 38/2023.
70. Files be consigned to Record Room, after due compliance.
Digitally
signed by
BALWANT BALWANT RAI
BANSAL
Announced in the open Court RAI Date:
BANSAL 2026.03.14
on 14th March, 2026 14:26:57
+0530
(Balwant Rai Bansal)
District Judge (Commercial Court)-02
South-West District, Dwarka Courts,
New Delhi
CS (Comm.) No.: 144/2023
&
Counter Claim No. 38/2023 Page 34 of 34