Delhi District Court
Smt. Poonam Gupta vs The Commissioner on 2 December, 2021
IN THE COURT OF SHRI MAN MOHAN SHARMA,
DISTRICT JUDGE (COMMERCIAL COURT)-06,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
IN THE MATTER OF :-
CS (Commercial) No. 1185/2020
Smt. Poonam Gupta
W/o Sh. Kamal Gupta
Sole proprietor of M/s Poonam Gupta,
Having its registered office at
832, 01st Floor, Tilak Street, Kashmere Gate
Delhi-110006,
(Through her attorney & son namely Shri .....Plaintiff
Hitesh Gupta)
VERSUS
1. The Commissioner
Ghazibad Nagar Nigam
Navyug Market, Naya Ganj,
Ghazibad, Uttar Pradesh.
2. The Additional Municipal
Commissioner, Ghaziabad Nagar Nigam
Navyug Market, Naya Ganj,
Ghziabad, Uttar Pradesh.
3. Shri D.K. Sinha
Appar Nigam Ayukat/Additional
Municipal Commissioner, Gorakhpur
District, Gorakhpur, Uttar Pradesh. .....Defendants
Date of Institution : 17.08.2020
Date of Reserve of Judgment : 10.11.2021
Date of Judgment : 02.12.2021
CS (Comm.) No. 1185/2020 Page No. 1 of 21
SUMMARY JUDGMENT
(Under Order XIIIA of the Code of Civil Procedure)
1. An application for summary judgment, under Order XIIIA of
the Code of Civil Procedure (hereinafter 'the Code'), has
preferred by the plaintiff on 04.08.2021, seeking disposal of
the suit for recovery and grant of all the claims of the plaintiff.
2. The mandatory notice of 30 days has been given to the
defendants. The defendant nos. 1 and 2 filed a reply to the
same on 04.09.2021. The defendant no. 3 neither appeared nor
filed a reply to the same.
The Parties
3. The plaintiff is an individual engaged in the business. She has
instituted the suit through her Attorney
4. The defendant no. 1 is the Commissioner, Ghaziabad Nagar
Nigam, U.P. The defendant no. 2 is the Additional Municipal
Commissioner, Ghaziabad Nagar Nigam, U.P. The Defendant
no. 3, Shri D. K. Sinha, Upper/Additional Municipal
Commissioner. He has been added as a party by the Court by
exercising powers under Order I Rule 10 of the Code.
Brief Facts of Plaintiff
5. Brief facts of this case are that the plaintiff has filed a suit for recovery of Rs. 5,31,240/- (Rs. Five Lakh Thirty One Thousand Two Hundred Forty only) against the defendant nos. 1 and 2.
6. The plaint discloses that plaintiff is a Contractor having her office at Kashmiri Gate, Delhi. The defendants have placed a Purchase Order no. 1123 dated 02.06.2017, whereby plaintiff CS (Comm.) No. 1185/2020 Page No. 2 of 21 had been asked to supply 10,000/- dustbin under Swachh Bharat, having the capacity of 12 litres each in with equal quantity in Blue and green Colours. As per the said purchase order, these dustbins were to be supplied in two different colours in equal quantity @ Rs. 38.90/- each. The aforesaid purchase order had been placed under the signatures of the defendant no. 3, Assistant Municipal Commissioner, Ghazibad Nagar, Nigam, Navyug Market, Naya Ganj, Ghaziabd, Uttar Pradesh.
7. The plaint further discloses that in pursuance of the order dated 02.06.2017, plaintiff had raised an invoice no. 148 dated 04.06.2017 and supplied the goods as were asked through purchase order no. 1123 dated 02.06.2017. These dustbins were supplied and the receipt of the goods/dustbin was acknowledged on the invoice itself. As per the terms and conditions of the invoice, the defendants were to make payment within seven days of the receipt of the goods but the defendants failed to make the payment of invoice amount of Rs. 3,89,000/- despite repeated requests, demands and reminders in writing as well as orally. These demands were made on 08.10.2018, through e-mail dated 08.10.2018, 21,01.2019 and 04.02.2019.
8. The plaintiff had also filed an application under section 18 (1) of the Macro, Small and Medium Enterprises Act, 2006, due to the delayed payment, to the MSE with application no. DL06A0006468/M/0001. The office of the Micro and Small Enterprises Facilitation Council, Delhi, has also issued a notice vide order dated 28.06.2019, bearing no. F. 00272/ MSEFC/DELHI/2017/1579. The reference under S. 18(1) of CS (Comm.) No. 1185/2020 Page No. 3 of 21 delayed payment to the MSE of the Micro, small and Medium Enterprises Act, 2006 had been disposed on the ground that plaintiff was a trader" and as such it was not eligible to initiate proceedings under the said Act.
9. It is the case of the plaintiff that the necessary facts of placement of order and supply of the goods has been admitted by the defendants vide reply dated 24.09.2019 in response to the application submitted by plaintiff under the provisions of the Right to Information Act, 2005. The defendants failed to pay the legitimate amount of Rs. 3,89,000/- to the plaintiff, therefore, as per the terms and conditions of the invoice, the defendants were/ are also liable to pay interest @ 24 % per annum for the period w.e.f. 08.07.2017 till the date of payment.
10.The plaint further discloses that when all the efforts to recover the amount went in vain then the plaintiff got served a legal notice of the demand dated 24.10.2019 under registered AD and speed post covers. The aforesaid legal notice has been duly served upon the defendants. However, even after the receipt of the legal notice, the defendants failed to comply with its mandate.
Brief Facts vis-a-vis the Defendant nos. 1 and 2
11.The summons of the suit were issued to the defendant nos. 1 and 2, who caused their appearance and put a contest to the suit by filing their Written Statement.
12.The defendant nos. 1 and 2 took preliminary objection that the plaintiff has not come before the Court with clean hands and has concealed the material facts i.e. work order from t and CS (Comm.) No. 1185/2020 Page No. 4 of 21 fabricated a false story against the defendants. Therefore, only on this ground alone the suit of the plaintiff was liable to be dismissed with heavy costs.
13.On merits, the defendant nos. 1 and 2 stated that plaintiff was not entitled to get any relief as claimed in the present suit against the defendant no. 1 as defendant no. 1 has not given any work order for the supply of the ten thousand dustbins of green and blue colour in equal quantity to the plaintiff. The plaintiff has no locus standie to file the present suit against the defendant no. 1 as the defendant no 1 is not concerned with the purchase order dated 02.06.2017 place by the Additional Commissioner, Sh. D.K. Sinha, who was not authorized by the defendant no. 1.
14. The transaction in question was challenged as being not a commercial transaction under section 2(1) (c) (viii) of the Commercial Courts Act, 2015.
15.The main ground of challenge has been that the defendant no. 1 has not authorised Sh. D.K. Sinha, Additional Commissioner to place the work order/purchase order in question to the plaintiff.
16.The territorial jurisdiction of the Court was also challenged stating that the defendant no. 1 has not placed any order in Delhi. The authority of Sh. Hitesh Gupta, attorney of the plaintiff to file, sign and verify the present suit had also been challenged.
17.The defendant no. 1 and 2 prayed for the dismissal of the suit.
CS (Comm.) No. 1185/2020 Page No. 5 of 21Proceedings in the Suit
18.The Written Statement was belated. However, after hearing the parties the delay stood condoned.
19.The plaintiff also filed Replication to the Written Statement of the defendant which had been taken on record.
20.On 06.02.2021, after hearing the detailed arguments on the aspect of framing of issues, it was considered necessary that Shri D.K. Sinha, Additional Commissioner, Ghaziabad Nagar Nigam, U.P. be also made a party to the suit as defendant no. 3 for the detailed reasons given in the minutes of proceedings dated 06.02.2021. Consequently, the defendant no. 3 was duly served with the process of this Court on 15.03.2021, but he did not appear in response to the summons.
21.Subsequent, to the filing of the application for summary judgment by the plaintiff, notice of the same was also directed to defendant no. 3 but the postal process remained unclaimed on 17.08.2021 as per the report on the returned envelope. He was awaited till 2:25pm on 10.09.2021 and on no appearance being caused, the defendant no. 3 had been proceeded ex- parte.
Arguments on the Application for Summary Judgment
22.Extensive arguments were addressed by the parties on the summary judgment application over various hearings. Written arguments have also been filed by the respective parties.
23.Ld. counsel for defendant nos. 1 and 2 has submitted that the application for summary judgment was not maintainable and such a judgment can be passed only in the cases, in which CS (Comm.) No. 1185/2020 Page No. 6 of 21 there are categorical admissions of the case of the adversary. It is not the situation in this case, therefore, the application is not maintainable.
24.In response to the same, ld. Counsel for the plaintiff stated that there is a catena of case law on the aspect of summary judgment and that it is not akin to a judgment on admissions, which is separately covered under Order XII Rule 6 of the Code. In contra-distinction to the same, order XIIIA of the Code is a self-contained Code and the provision itself is self- speaking of its scope and arena. He relied upon the judgment of Vengia Mobili (India) Pvt. Ltd. vs. Ramprastha Promoters & Developers Pvt. Ltd. & Ors., passed by Hon'ble High Court of Delhi in on 26.03.2019 in support of his submissions stating that the entire case law up-to-date has been cited in the said judgment and he relied upon the same.
25.Ld. counsel for plaintiff submitted that there are documents on record, which show the placement of order by the defendants. The Order No. 1123 dated 02.06.2017 addressed to the plaintiff for ten thousand pieces of Swachh Bharat 12 Ltr. Container (Blue & Green). The para 2 of the same reads as under:-
"Delivery:- The delivery of the above items is to be made in the shortest possible time at designated place within two working days after the receipt of purchase order otherwise the order will be treated as cancelled without any further reference to you, Ghaziabad Nagar Nigam will have option to procure the requirement from open market on your risk and cost."
26.The plaintiff supplied the goods vide invoice no. 148 dated 04.06.2017, then sent a reminder dated 08.10.2018 and many CS (Comm.) No. 1185/2020 Page No. 7 of 21 reminders for payment thereafter. She sent a legal notice on 24.10.2019. The plaintiff filed an application under Right to Information Act, 2005 on 09.08.2019, which was duly received on the said date in the office of the defendant and acknowledged under the signatures and seal of the defendants. It was replied vide letter no. 2165 dated 24.06.2019, in which a categorical admission has been made that the order in question was issued by Sh. D.K. Sinha (the defendant no. 3) on 02.06.2017 and that the supply of ten thousand green and blue dustbins had been made by the plaintiff on 04.06.2017.
27.Ld. Counsel for the plaintiff stated that in view of the above, there are categorical admissions of the material facts of the case and they are complete in themselves for the grant of a judgment on admission as well as a summary judgment in favour of the plaintiff and against the defendants. The only defence taken by the defendants is that Sh. D. K. Sinha, was not authorized to place an order. However, the dustbins have never been returned and the defendants cannot eat the cake and have it too. It is not the case of the defendants that they have initiated a departmental inquiry against Sh. D.K. Sinha for his so called unautorized acts or have removed him from the services. He continues to remain in the service of Municipal Corporation.
28. It is further submitted by the Ld. Counsel for the plaintiff that the defendants have not returned back the supply of ten thousands dustbins and in the garb of the plea that Sh. D.K. Sinha (defendant no. 3) was unauthorized to issue the order, the defendants want to unjustly enrich themselves at the cost CS (Comm.) No. 1185/2020 Page No. 8 of 21 of plaintiff. There is no explanation as to why the dustbins have not been returned to the plaintiff.
29.It has also submitted that the doctrine of "indoor management" applied with full force in this case for the reason what happens/transpires behind the closed doors or the curtain in the office of defendants, a body corporate, is not known to the plaintiff or public at large and that the plaintiff is duly protected under this doctrine.
30.It is further stated that RTI reply is a document, which is self- incriminating against the defendants. It binds them as a categorical admission of all the necessary facts of the case.
31.Ld. counsel for the defendants strongly refuted the arguments of the plaintiff.
32. On behalf of the defendants it is states that the suit of the plaintiff is devoid of any cause of action for the reason that the order issued by the defendant no. 3 is entirely without any authority. The same is void ab-initio. Therefore, the suit itself is not maintainable. The plaintiff is taking advantage of its own wrongs and the suit is mischievous and not maintainable. Even otherwise, there are triable issues in the case and therefore, the application for summary judgment deserves dismissal.
33.Ld. Counsel for the defendants argued that there being no admission in the written statement and a specific defence of unauthorized acts of the defendant no. 3, the suit of the plaintiff does not lie. The defendant is a government body and cannot be burdened with the recovery which is legally not sustainable and it would be a loss to the public and the ex-
CS (Comm.) No. 1185/2020 Page No. 9 of 21chequer. The case of the plaintiff must stand on its own legs and the witnesses must be subjected to the cross examination so that the truth my emerge and prevail. This process cannot be short-circuited and undone in the garb of the application for summary judgment.
34. Arguing further, Ld. Counsel for the defendants submitted that the reply to the RTI and other documents need to pass the scrutiny of the Court through a process of trial and this is a basic right which cannot be eclipsed. He prayed for the dismissal of the application for summary judgment.
Analysis, Findings and Reasons
35.I would, first of all, deal with the issue of maintainability of the application for summary judgment filed under Order XIIIA of the Code.
36.A trial in a civil suit opens on the identification of the issues. These issues may be issues of facts, or issues of law. If the case entirely depend on a pure question of law, it can be disposed of by a judgment on the preliminary issue, more so, if such issue pertains to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. It has been so provided under Order XIV Rule 2 of the Code. But this is not the sole exit gate for a lis. If a party fails to present written statement called for by the Court, a judgment may be pronounced against it under Order VIII Rule 10 of the Code. Order VII Rule 11 provides for rejection of plaint, if one or more of the grounds stated therein are attracted. A judgment on admissions can also be passed in accordance with Order XII Rule 6 of the Code, if the circumstances so warrant.
CS (Comm.) No. 1185/2020 Page No. 10 of 2137.So, as the scheme of the Code shows, that trial is procedure, which must be followed as a necessary ritual, invariably in all the cases, as a rule of thumb, is not the correct interpretation of the Code. In appropriate cases, if the requisite conditions are met with, a litigation may be shown the exit door in accordance with the law. In this context, the concept of summary judgment as enshrined in the Order XIIIA of the Code of Civil Procedure and applicable only in respect of a commercial suit is of a recent origin with the enactment of the Commercial Courts Act, 2015. It is a unique provision, so far having no pari-materia provision in any other statute.
38.Though on a cursory examination, it may appear that the summary judgment is akin to 'judgment on admission' under Orde XII Rule 6 of the Code of Civil Procedure or a 'default judgment' under Order VIII Rule 1 of the Code of Civil Procedure or in some way similar to the 'summary procedure' under Order XXXVII of the Code of Civil Procedure. However, a careful scrutiny of the provision reveals that it is in fact quite different from these provisions. It is an independent provision, self-contained in itself having characteristic distinctions vis-à-vis the other provisions cited above.
39.In the judgment of Ambalal Sarabhai Enterprises Vs. K. S. Infraspace LLP reported as 2019 SCC OnLine SC 1311, the Hon'ble Supreme Court of India has been pleased to hold that "keeping in view the object and purpose of the establishment of the Commercial Courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully CS (Comm.) No. 1185/2020 Page No. 11 of 21 interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country."
40.As it stands, the provision of Summary Judgment gives a right of any party to a commercial dispute instituted under the Commercial Courts Act, 2015 to get a claim decided in its favour without compulsorily going through the process of recording the oral evidence. It is an effective tool for deciding cases where it can be clearly demonstrated that a trial is unnecessary.
41.In various quarters this provision has been labelled as a 'blunt instrument' that can abruptly terminate litigation. However, as the case law jurisprudence that has developed on this subject has recognized it is a tool that allows Courts to weed out cases that do not need a trial to be resolved, and the precious time of the Courts can be utilized fruitfully by focusing on the areas of actual dispute, which require particular attention. The Superior Courts, in a catena of case law, have strictly interpreted this provision so that the rule does not deprive the parties of their innings in the Court.
42.All commercial disputes are covered under the provision of Order XIIIA with only one exception i.e. the cases originally instituted under the summary procedure under Order XXXVII of the Code of Civil Procedure, in which case this provision cannot be invoked.
43.The right to get a summary judgment can be claimed by any of the parties to a commercial dispute and this window is not CS (Comm.) No. 1185/2020 Page No. 12 of 21 open all the times. It is open from any stage after the service of summons of the suit upon the defendant till the stage of the framing of the issues. Once the issues have been framed, the window gets closed for good. It has been so expounded in the judgment of Bright Enterprises Private Limited & Anr. vs. M J Bizcraft LLP & Anr 2017 SCC OnLine Del 6394.
44.There are four types of claims can be decided by way of a summary judgment. Firstly, the entire claim of either of the parties; secondly, a part of claim of either of the parties; thirdly a counter-claim and lastly any particular question on which the claim, whether in whole or in part, depends can be decided under this provision.
45.A Court may give a summary judgment against any party to a commercial dispute on two grounds. These two grounds have been joined by the word 'and' connoting that both the grounds must exist together and simultaneously. The first ground is that the Court considers that the plaintiff has no real prospect of succeeding on the claim or that the defendant has no real prospect of successfully defending the claim. The second ground is that there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
46.The Hon'ble High Court of Delhi in Su-Kam Power Systems Ltd. vs. Kunwer Sachdev & Anr. reported as 2019 SCC OnLine Del 10764 has been pleased to hold that this provision empowers the Court to grant a Summary Judgment against the defendant where the Court considers that the defendant has no real prospects of successfully defending the claim and there is CS (Comm.) No. 1185/2020 Page No. 13 of 21 no other compelling reason why the claim should not be disposed of before recording of oral evidence. The judgment of Su-Kam (supra) expounded the concept of the expression 'real' and held that is means 'realistic' as opposed to 'fanciful' prospects of success. Consequently, Order XIII-A CPC would be attracted if the Court, while hearing such an application, can make the necessary finding of fact, apply the law to the facts and the same is a proportionate, more expeditious and less expensive means of achieving a fair and just result.
47.In another case, Ambawatta Buildwell Pvt. Ltd. vs. Imperia Structure Ltd. & Ors. 2019 SCC OnLine Del 8657, Hon'ble High Court of Delhi has held that it has to be seen whether the defence pleaded, has any chance of succeeding in law and if the answer is in the negative, a decree on admissions or under Order XV of CPC or a Summary Judgment under Order XIII- A of the Code has to follow. Other significant judgments, expounding the various facets of the scope and ambit of a summary judgment, pronounced by the Hon'ble High Court of Delhi are Rockwool International and Anr. vs. Thermocare Rockwool (India) Pvt. Ltd. 2018 SCC OnLine Delhi 11911; R. Impex vs. Punj Lloyd Ltd. 2019 SCC OnLine Delhi 6667; Mallcom (India) Limited and Anr. vs Rakesh Kumar & Ors. 2019 SCC OnLine Delhi 7646 and Jindal Saw Limited vs. Aperam Stainless Services & Solutions Precision SAS & Ors. 2019 SCC OnLine Delhi 9163 and the law laid down in all these judgment has been duly considered by this Court.
CS (Comm.) No. 1185/2020 Page No. 14 of 2148.Thus, while undertaking the task of considering a case or a claim for summary judgment, is indeed a task which must weigh and evaluate a host of factors. An application for summary judgment has three aspects viz. the factual submissions; the legal submissions; and the documentary evidence.
49.While dealing with an application for summary judgment the Courts must consider certain factors. The following factors have been culled out as expounded in various judgments referred to above--
(i). Whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success. A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.
(ii). Court must not take at face value and without analysis everything that a claimant says in his submissions before the Court.
(iii). Court must take into account not only the evidence actually placed before it, but also the evidence that can reasonably be expected to be available at trial.
(iv). The Court must be satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
(v). It is not enough simply to argue that the case should be allowed to go to trial because something CS (Comm.) No. 1185/2020 Page No. 15 of 21 may turn up which would have a bearing on the question of construction.
(vi). Summary judgment ought to be refused if there were compelling reasons to conduct a trial.
(vii). Court has to strike a balance between a fair trial and expedition.
50.In this context the instant case has to be considered for grant of a summary judgment.
51.It is clear from the above discussion that the concept of summary judgment is a not a new "avatar" of the concept of judgment on admission. It is an independent provision and self-contained Code. Thus, the summary judgment application as presented by the plaintiff is maintainable in the eyes of law. Whether, the same can be eventually allowed is a different matter altogether. This requires the sifting of the factual and legal aspects argued by the parties which are to be tested on the touchstone of the various criteria stated above.
52.The pleadings of the case have crystallized and the respective parties have produced all the documents in their power and possession. It cannot be lost sight of the fact that in commercial matters in the present business milieu the evidence primarily constitutes to be documentary one and the scope of oral evidence is limited, if not altogether ruled out. The admission and denial of documents is also a step in lending further credibility to the documents by the adversary. This also reduces the scope for oral evidence.
CS (Comm.) No. 1185/2020 Page No. 16 of 2153.In view of the above, the matter can be considered for a summary judgment and the objection of the defendants as to the maintainability of the summary judgment application is non-est in the eyes of law.
54.The legal aspect for consideration in the present case is whether the transaction in question is a commercial transaction within the meaning of section 2(1) (c) of the Commercial Courts Act, 2015. In my view, the section 2(1) (c) (i) of the Commercial Courts Act, 2015, covers this transaction as the transaction in question is an ordinary transaction of merchant in the course of the business. Therefore, the dispute raised in this case is clearly a commercial dispute and actionable before a Commercial Court.
55.The factual question relates to the transaction and whether the defendant no. 3 was competent to place an order upon the plaintiff. In my view, the doctrine of indoor management, which in legal parlance is known as Turquand Rule is a vintage concept and it aims to protect the outsiders against the actions done by a company. How the affairs of a body corporate are conducted, which is not within the reach of a third party dealing with any such body corporate, the third party is duly protected against any such defence of irregularity of any particular act done or performed on behalf of a body corporate. When a written purchase order under the signatures of an official of a body corporate, in this case the Municipal Authority has been received it can presumed that the same is a valid purchase order. Except making a bald assertion, the defendants have not placed any documents on record to show CS (Comm.) No. 1185/2020 Page No. 17 of 21 that the act of defendant no. 3 were unauthorized. It has also not been the case of the defendants that the plaintiff was communicated about the acts of defendant no. 3 being unauthorized. There is nothing on record, neither the pleadings nor any documents by defendants, to demonstrate that the plaintiff was communicated about any cancellation of the order or any return of the goods delivered by the plaintiff. The defendants did not even reply to the legal notice dated 24.10.2019 sent by the plaintiff, which has been duly served on 26.10.2019 and 30.10.2019.
56.Before launching the litigation the pre-institution Mediation was initiated by the plaintiff. Notice of the same had been sent to defendants and their counsel Sh. S.K. Verma along with Sh. Faruq Ali Khan, legal Assistance on behalf of the defendants joined the proceedings initially but later on refused to participate in the mediation process. In this view of the matter, a Non Starter Report was given by the Delhi Legal Services Authority.
57.The defendants in their reply dated 24.06.2019, given under the RTI Act had admitted the factum of issuance of the purchase order dated 02.06.2017 as well as the supply of ten thousand dustbins of green and blue colours by the plaintiff on 04.06.2017. Thus, the entire cause of action on behalf of the plaintiff is complete as it had on the receipt of purchase order from the defendant has made the supplies and therefore, there being no demur on the part of the defendants, it was entitled to receive the payments for the goods supplied.
CS (Comm.) No. 1185/2020 Page No. 18 of 2158.The case of the defendant nos. 1 and 2 is simply of denial and passing the buck on the ground that the order has been placed unauthorizedly by the defendant no. 3. The Court has impleaded the defendant no. 3 in consonance with the principles of natural justice enshrine in the rule of audi- alterm-partem and in exercise of power under Order I Rule 10 of the Code extended the same to defendant no. 3 by impleading him as a party so that the allegations against him are not heard at his back. The defendant no. 3 was duly served but preferred not to join the proceedings and was proceeded ex-parte.
59.There is noting on record to suggest that any action was taken or contemplated against the defendant no. 3 by the defendant nos. 1 and 2. There is nothing to suggest that even a show cause notice was ever issued to the defendant no. 3 by the Authority.
60.From the material on record, there is nothing to infer that any evidence can come before the Court than that has been placed before it. All the evidence in this case is documentary evidence and the defendants have failed to demonstrate that by any figment of imagination some oral evidence may come, which may turn the tables. Therefore, the question of any oral evidence is only superfluous exercise. The documents have already crystallized on record. Taking a cue from the Indian Evidence Act, 1872 by reading section 114, illustration (g), which reads that the evidence which could and is not produced, if produced would be unfavorable to the person who withhold it, this principle applies in full force in this case when CS (Comm.) No. 1185/2020 Page No. 19 of 21 as per order XI of the Code as applicable to a commercial dispute more specifically Order XI Rule 7 of the Code. It is incumbent upon the defendants to file all documents in its power, possession/control or custody along with the Written Statement. It is not the case of the defendants that it wants to file any more documents, which have been left out inadvertently.
61.On a reading of the case, it is very much apparent that a part of cause of action has arisen at Delhi, where the plaintiff is stationed and carrying out its business within the territorial jurisdiction of this Court.
62.Considering the material on record, it is apparent that the defendants have no real prospect of successfully defending the claim and that there is no other compelling reason why the claim should not be disposed of without recording of oral evidence.
63.Therefore, this application for summary judgment, under Order XIIIA of the Code of Civil Procedure, as mooted by the plaintiff, is allowed thereby passing a money decree in the sum of Rs. 5,31,240/- (Rs. Five Lakh Thirty One Thousand Two Hundred Forty only) with interest @ 12% per annum from the date of institution of the suit i.e. 17.08.2020 till realization of the amount. The amount of interest due till the date of this judgment/decree be added in the decreetal amount and the Court Fee be paid accordingly. The decree sheet be drawn after the Court Fee has been paid.
64.The plaintiff shall be entitled to the costs of the suits as well as per the rules. Certificate of counsel fee (if any submitted) CS (Comm.) No. 1185/2020 Page No. 20 of 21 be taken into reckoning while computing the costs.
65.Balance Court Fee be deposited by the plaintiff within 30 days hence forth.
66.Decree shall be drawn accordingly.
Copy of the Judgment
67.In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
68.This judgment be uploaded on the website of Delhi District Courts forthwith.
69.File be consigned to Record Room.
Digitally signedAnnounced in the open court MANMOHAN
SHARMA
by MANMOHAN
SHARMA
on 02.12.2021
Date: 2021.12.02
16:40:39 +0530
(Man Mohan Sharma)
District Judge (Commercial Court)-06
Central District, Tis Hazari Courts, Delhi CS (Comm.) No. 1185/2020 Page No. 21 of 21