Delhi District Court
Sh. Sandeep Jain vs Sh. Sanjay Kumar on 10 October, 2022
IN THE COURT OF MS. BARKHA GUPTA, DISTRICT
JUDGE (COMMERCIAL), NORTH-EAST,
KARKARDOOMA COURTS, DELHI
C.S. (Comm) No. 35/2021
CNR No. DLNE01-001496-2021
Sh. Sandeep Jain,
trading as 'M/s Sandeep Traders',
582, Jain Mandir Gali,
Chotta Bazar, Shahdara, Delhi-110032
......Plaintiff
Versus
Sh. Sanjay Kumar,
trading as 'M/s Shri Govind Traders',
A-13, First Floor, Part No. 2, Gali No. 1,
Khasra No. 341 & 342
Pusta-1, Soniya Vihar, Delhi-110094
....Defendant
Date of Institution : 23.03.2021
Final arguments : 20.09.2022
Date of decision : 10.10.2022
JUDGMENT
1. The plaintiff Sh. Sandeep Jain, who is trading as 'M/s Sandeep Traders' (hereinafter referred to as the 'plaintiff') has filed a suit for recovery of Rs.3,65,259/- (Rupees Three Lacs Sixty Five Thousand Two Hundred Fifty Nine Only) against the defendant Sh. Sanjay Kumar, who is trading as 'M/s Shri Govind Traders' (hereinafter referred to as the 'defendant').
2. Brief facts of the case as revealed from the plaint are that the plaintiff is registered with the Department of Trade & Taxes C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 1 of 19 under the provisions of Delhi Value Added Tax Act under TIN No. 07097123467, which was migrated to Central Goods and Services Tax Act 2017 under GST No. 07AAEPJ4450H1ZW.
Further, the defendant carries on the business under the name and style of 'M/s Shri Govind Traders', which is registered with the Department of Trade & Taxes under TIN No. 07947197350 under the provisions of Delhi Value Added Tax Act,2004 and registered under DVAT, which Act was migrated to GST NO. 07ALJPK8616J1ZQ.
3. The plaintiff contends that he supplied the goods, such as lunch box, flask, kettle, tiffin, carsalle etc. to the defendant at his shop as per his orders for a total sum of Rs. 5,76,727/- as per following tax invoices and has given the details of the same in paragraph no. 4 of the plaint as under:-
Tax Invoice Date of Invoice Taxable Amount of VAT/GST No. Goods Supplied (CGST/SGST) (Rs) Amount (Rs) 1/044 22.05.2017 53,850/ 2,693/ 089 13.10.2017 1,96,250/ 23,550/ 108 06.11.2017 2,68,200/ 32,184/ The plaintiff also submits that the said goods were taxable under Delhi Value Added Tax Act, 2004 and also under Goods and Services Tax Act, 2017 and he deposited as sum of Rs.58,427/-
towards the same.
4. The plaintiff avers that he supplied material worth C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 2 of 19 Rs.5,76,727/- to defendant, however, the defendant paid him only a sum of Rs.3,55,000/- from time to time and defendant lastly paid him a sum of Rs.15,000/- on 26.02.2020 vide cheque bearing no.304969 drawn on Punjab National Bank and hence, the outstanding amount on account of supplies made by him is Rs.2,21,727/- and submit that he is also entitled to a further sum of Rs.1,43,523/- which has become due on account of interest up to 28.02.2021, which is calculated @ 15% on reducing balance. He submit that accordingly, the total outstanding amount alongwith interest up to 28.02.2021 is Rs.3,65,259/- and further he is also entitled to interest @ Rs.91.12 per day being accrued on the outstanding amount.
5. The plaintiff avers that the goods supplied by him to the defendant were taxable under Delhi Value Added Tax Act 2004 and also under Goods and Services Tax Act 2017 and due VAT and GST (CGST and SGST), which was charged on the sale/supplied goods which amounted to Rs.58,427/-, which was also deposited by him.
6. The plaintiff submits that he repeatedly asked the defendant to pay him the outstanding amount, but the defendant did not pay any heed and hence, the plaintiff sent a legal demand notice dated 17.09.2020 to the defendant, to which, the defendant also sent reply dated 13.10.2020, wherein he denied that he has to pay anything to the plaintiff.
7. The plaintiff also avers that in fact, payment of C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 3 of 19 Rs. 2,21,727/- was wrongly claimed to be made to plaintiff by the defendant on various dates as detailed in para no. 13. In fact, the plaintiff has in his possession of cheque no. 304970, dated 25.03.2020 for Rs. 20,000/- drawn on Punjab National Bank, Sonia Vihar, Delhi-110094 bearing date subsequent to 26.02.2020 and the cheque dated 25.03.2020 could not be deposited due to lockdown. He further submits that cheque no. 304969, dated 26.02.2020 drawn on Punjab National Bank, Sonia Vihar, Delhi-110094 pertains to same series.
He also contends that the defendant also sent him a message dated 24.03.2020 on his WhatsApp mentioning therein that "Jai Shri Krishna Sir abhi cheque deposit mat karna".
8. The plaintiff prays that decree in sum of Rs.3,65,259/- (Rupees Three Lacs Sixty Five Thousand Two Hundred Fifty Nine Only) alongwith interest @ 15% per annum may be passed in his favour and against the defendant from the date of filing of the suit till its realization along with costs of the suit.
9. The defendant, in the written statement stated that he has paid the entire amount pertaining to the invoice no. 044 dated 22.05.2017 for Rs.56,543/-, invoice no. 089 dated 13.10.2017 for Rs. 2,19,800/- and invoice dated 06.11.2017 for Rs. 3,00,384/-, which comes to Rs.5,76,727/- to the plaintiff and he also informed the plaintiff about it. Further, no due is pending against him as per ledger account from 01.04.2017 to 31.03.2018 C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 4 of 19 and he also sent copy of the said ledger account to the plaintiff.
10. He further contends that the suit of the plaintiff is barred by limitation and further, this Court has no pecuniary and territorial jurisdiction to entertain the suit. He also denied the allegations levelled by the plaintiff against him and prays that suit of the plaintiff may be dismissed being devoid of any merits.
11. The plaintiff, in the replication reiterated the contentions, allegations and averments made and levelled by him on the defendant as mentioned in the plaint, which are not repeated here for the sake of brevity.
12. As per record, vide order dated 01.06.2022, following issues were framed:-
1. Whether the suit is barred by limitation? OPD
2. Whether the Court has pecuniary jurisdiction to entertain the suit? OPD
3. Whether the Court has territorial jurisdiction to deal with the case? OPD
4. Whether the plaintiff is entitled for decree in its favour and against the defendant for a sum of Rs.3,65,259/- alongwith pendente lite interest?OPP
5. Whether the plaintiff is entitled for further interest @15% from the date of filing of suit till the realization of the suit amount?OPP C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 5 of 19
6. Whether the plaintiff is entitled for the costs of the suit? OPP
7. Relief.
13. The plaintiff, in support of his case, examined himself as PW1 and Sh. Satish Kumar (Record Keeper from Department of Trade and Taxes, Ward No. 41, IP Estate, New Delhi) as PW2. As per record, the defendant examined himself as DW1.
14. I have heard final arguments as advanced by Advocate Sh. P.K. Jain, learned counsel for the plaintiff and Advocate Sh. Om Pal Singh, learned counsel for the defendant and have given my thoughtful consideration to the rival submissions made by them. I have also perused the material as placed on record.
15. Now, in the succeeding paragraphs, the issues would be discussed and firstly, issue no.4 would be discussed as under:-
Issue No. 4.
"Whether the plaintiff is entitled for decree in its favour and against the defendant for a sum of Rs.3,65,259/- alongwith pendente lite interest?"OPP The onus to prove this issue is on the plaintiff.
16. The plaintiff examined himself as PW1 and adduced evidence vide his affidavit Ex. PW1/A bearing his signatures at points A and B respectively, wherein he reiterated whatever he has contended and alleged against the defendant in the plaint, C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 6 of 19 which is not repeated here for the sake of brevity. He relied upon the following documents:-
i. Profile of the defendant under GST as Ex.PW-1/A (colly) ii. Copy of invoices as Ex.PW-1/B (colly) iii. Notice issued to the defendant at his address at Azad Market, which was returned unserved with postal envelope as Ex. PW-1/C. iv. VAT returns and Annexure 2-B as Ex.PW-1/D (colly) v. GSTR 3B and GSTR 1 as Ex.PW-1/E (colly).
vi. Copy of account statement of defendant and interest calculation as Ex.PW-1/F (colly).
vii. Demand notice, its reply and rejoinder as Ex.PW-1/G (colly).
viii. Cheque dated 25.03.2020 for Rs.20,000/- issued by the defendant as Ex.PW-1/H. ix. Whatsapp message received from the defendant as Ex.PW-1/I. x. Non Starter mediation report as Ex.PW-1/J. xi. Certificate under Section 65 B of Indian Evidence Act as Ex.PW-1/K.
17. During cross-examination on behalf of the defendant, PW1 inter alia stated that the document Ex.PW1/A, which is a computer generated document is not signed by him as it was downloaded from the site of GST Department and admit that he has not filed the certified copy of Ex.PW1/A. He also admit that C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 7 of 19 the statement of account of the defendant, which he has filed, bear his signatures. He stated that he does not know whether the Certificate under Section 65B of the Indian Evidence Act was filed alongwith the electronic record.
He admit that he has not filed any document or statement of Account to show that the defendant has to pay him an amount of Rs. 2,21,727/-. He also stated that he supplied goods to the defendant as mentioned in the tax invoice nos. 1/044, 089 and 108 dated 22.05.2017, 13.10.2017 and 06.11.2017 respectively through theli rickshaw and admit that he has not mentioned in the plaint that goods were supplied through theli rickshaw.
He further stated that he does not maintain the record of the goods, which were supplied by him to the defendant through theli rickshaw alongwith bills and stated that the theli/rickshaw wala used to deliver the same to the defendant and after coming back, he would not give any document to him and also stated that there used to be telephonic conversation between him and the defendant about it.
He admits that he did not mention in the plaint about any such telephonic conversation between him and the defendant and has not filed any document to show regarding delivery of the goods to the defendant. He also stated that he used to deliver the material as per demand of the defendant and also stated that he delivered the material as per telephonic communication between them or whenever the defendant communicated to him to deliver the material.
He denied that the defendant never made any demand for C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 8 of 19 delivery of the goods from him vide letters Ex. PW1/B and also denied that said letters are forged and manipulated.
During further cross examination, PW-1 also denied that he did not deliver the copy of the bill to the defendant and further denied that he never demanded the due amount from the defendant till sending the legal notice dated 17.09.2020, which is Ex. PW1/G and stated that the contents of the legal notice dated 17.09.2020 are correct.
PW1 admit that he did not mention the details of the cheque bearing no. 304970 dated 25.03.2020 for Rs.20,000/- in the legal notice. He denied that at the time of the business dealing/transactions, the defendant gave him blank signed cheque, which is Ex PW1/H and also denied that it was a security cheque. He also denied that he filed the said cheque only to fill up the lacuna in the case and further denied that the defendant paid him the entire outstanding/balance amount and also denied that nothing is due against the defendant.
18. The plaintiff also examined a summoned witness namely Sh. Satish Kumar (Record Keeper from Department of Trade and Taxes, Ward No. 41, IP Estate, New Delhi) as PW2, who brought the record pertaining to DVAT 16 of 4th quarter 2016-17 of 'M/s Shri Govind Traders' as Ex.PW-2/A and GSTR 2A for October and November 2017-18 as Ex.PW-2/B (Colly), GSTR 3B for the period October and November, 2017-18 as Ex.PW-2/C. From perusal of record, it is revealed that the defendant did not cross-examine him on any aspect.
C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 9 of 19
19. The defendant examined himself as DW1 and adduced evidence vide his affidavit Ex.DW1/A bearing his signatures at points A and B respectively, wherein he reiterated whatever he has contended and alleged against the plaintiff in the written statement, which is not repeated here for the sake of brevity.
20. During cross-examination, the defendant/DW1 inter alia stated that he started his business from premises no. 10233 Library Road, Azad Market, Delhi-06 and his present address is A-13, Gali No.1, Part-2, First Pusta Sonia Vihar, Delhi-110090, but could not tell as to when he changed his address and admit that he did not apprise the plaintiff about the change of his address and admit that he received the demand notice sent by the plaintiff.
21. During further cross-examination, DW1 denied that the payments dated 25.10.2017 of Rs.6,543/-, dated 28.10.2017 of Rs.19,800/-; dated 04.11.2017 of Rs.25,400/-; dated 15.11.2017 of Rs.20,000/-; dated 15.12.2017 of Rs.18,000/-; dated 15.01.2018, of Rs.20,000/-; dated 24.02.2018, Rs.12,184/-; dated 15.05.2018 of Rs.25,000/-; dated 20.07.2018, Rs.35,000/-; dated 10.10.2018 of Rs.15,000/-; dated 25.12.2018 of Rs.10,000/-; dated 28.10.2019 of Rs.14,800/- were not made by him.
He also stated that despite his request, the plaintiff did not issue any receipt to him regarding the cash payments made by him. He also stated that he also made the payment to the plaintiff C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 10 of 19 by way of cheque and admit that the cheque no. 304969 dated 26.02.2020 for a sum of Rs.15,000/- is drawn on Punjab National Bank. He also admits that he handed over the cheque bearing no. 304970 to the plaintiff alongwith two other cheques as 'security cheque' at the time of initiating business dealings with the plaintiff, which are the only signed cheques.
He admit that he had sent a message Ex. PW1/I to the plaintiff but it was with respect to another business, which was done by his known person namely Sh Anil Sharma with the plaintiff and stated that the plaintiff informed him in respect of stopping of the cheque given to him by Sh. Anil Sharma.
He also stated that on behalf of Sh. Anil Sharma, he had sent the said message to the plaintiff but does not know the name of firm of Sh. Anil Sharma.
He further admit that the returns are required to be filed periodically for registration under DVAT Act and subsequently, under GST Act and stated that the bill nos. 1/144, dated 25.5.2017, 0/89 dated 13.10.2017 and 108 dated 06.11.2017, which are Ex. DW1/B were forged by 'M/s Sandeep Traders'. He also stated that the plaintiff did not supply him the goods against the said bills He further stated that the plaintiff did not provide him copies of the said bills and also that he did not not sign the said bills at any point of time. He also stated that all the details mentioned in his ledger are correct which is Ex.PW-1/G (colly) and denied the allegations levelled by the plaintiff.
C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 11 of 19
22. The case of the plaintiff in brief is that he supplied goods to the defendant to the tune of Rs.5,76,727/-, however, the defendant did not pay him the entire amount and a sum of Rs.2,21,727/- is outstanding against the defendant and further, on adding interest up to 28.02.2021, it comes to Rs. 3,65,259/-. On the other hand, the contention of the defendant is that he has already made the entire payment of the bills to the plaintiff and nothing is due against him.
23. As already discussed earlier, the plaintiff examined himself as PW1 and though, he was cross-examined at length, however, the defendant could not shatter his version on material aspects of the case. The plaintiff, time and again, has emphasized that he supplied the material/goods to the defendant through theli/rickshaw alongwith bills and emphasize that he delivered the goods to the defendant as per his demands and denied that he had forged and fabricated the bills or that he never asked the defendant to pay him the outstanding amount.
24. It is admitted case of the defendant that the plaintiff used to supply goods to him and as per the defendant, he used to pay the amount to the plaintiff in cash and also by way of cheque. The defendant has alleged that the plaintiff did not give him any receipt of the cash payment made by him, which is clearly denied by the plaintiff.
In considered opinion of the Court, though, the defendant cross examined the plaintiff at length, however, the defendant has C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 12 of 19 miserably failed to show anything on record that he made the payment of outstanding amount to the defendant in cash at all or by any other mode. It is also not understandable that when, as per the defendant, he paid the remaining entire amount to the plaintiff in cash, then, why and on what ground, he admittedly gave cheque to the plaintiff or why the defendant never asked his bank to stop encashment of the cheque and hence, had the defendant paid entire amount to the plaintiff, then why, the defendant did not take any steps against the plaintiff.
25. The contention of the plaintiff is that the defendant issued him the cheque Ex. PW1/H on 25.03.2020 for a sum of Rs. 20,000/-, which has not been rebutted by the defendant.
Further, the defendant also could not show that the WhatsApp chat, which is relied on by the plaintiff as Ex. PW1/I is false or frivolous. The defendant has also admitted that he had sent the WhatsApp message Ex. PW/I to the plaintiff, but stated that it was regarding WhatsApp of business done by his known person namely Sh. Anil Sharma with the plaintiff, but could not show anything that it was in pursuance of Shri Anil Sharma and not of him and it seems that the said WhatsApp chat was about the payment pertaining to this case and further, it is not understandable as to why said person himself did not sent any Whatsapp to plaintiff. Further, the said Whatsapp does not find name of said person Shri Anil Sharma and the only reasonable conclusion that can be drawn in the given facts and circumstances is that the defendant sent the said Whatsapp C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 13 of 19 regarding his business transactions with the plaintiff. As such, the defendant could not show that it was not pertaining to transaction in this case and he also could not show that he had sent the said Whatsapp on behalf of another person Shri Anil Kumar.
26. The plaintiff has also duly proved the copies of requisite invocies as Ex. PW1/B and also proved the documents pertaining to VAT returns and Annexure 2-B as Ex. PW1/D (Colly) and further proved GSTR3B and GSTR1 as Ex. PW1/E (Colly) to show that he paid the requisite tax regarding the goods supplied by him to the defendant.
It is pertinent to mention here that the plaintiff also examined a summoned witness namely Sh. Satish Kumar as PW2, who has proved DVAT 16 4 th quarter 2016-2017 of 'M/s Shri Govind Traders' as Ex. PW2/A, GSTR2A for October and November 2017-2018 as Ex. PW2/B (Colly) and proved GSTR 3B for the period October and November 2017-2018 as Ex. PW2/C, however, the defendant preferred not to cross-examine him on any aspect and his testimony has remained unrebutted and uncontroverted.
26. In considered opinion of the Court, PW-2 has corroborated version of PW-1 on material aspects of the case. It needs to be discussed that the defendant/DW-1, during his cross-examination also stated that he does not know whether any record pertaining to cash payment is filed on record and stated that as per record, he did not file any document to show if at all, he ever made any C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 14 of 19 payment in cash to the plaintiff.
Though, the defendant has stated that he paid for the bills as claimed by the plaintiff, yet, he could not prove the same on record. It cannot be lost sight off that if as per defendant, the plaintiff was not issuing any receipts, still why, the defendant had kept mum and it seems improbable that defendant would not take any steps if the plaintiff was not issuing any receipts. Further, the defendant also could not show as to what steps he took and as such, he never issued any notice or reminder to the plaintiff in writing about it.
Accordingly, in view of above, in considered opinion of the Court, the said contentions of the defendant seem to be taken only for the sake of disputing of the claim of the plaintiff and the same has no substance whereas, the plaintiff has been able to show that the defendant is under an obligation to pay the amount as claimed by him.
27. In considered opinion of the court, the testimonies of the plaintiff and PW-2 could not be rebutted by the defendant on material aspects of the case and further, nothing is shown on record that the plaintiff or PW-2 have deposed falsely and rather, it is shown that the plaintiff and PW-2 have testified in a coherent and cogent manner and their testimonies do not seem suffer from any artificiality or exaggeration or any inherent infirmity, which go to the root of the matter and shake their basic versions.
In considered opinion of the court, the testimony of the plaintiff is sufficiently corroborated on material aspects by the C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 15 of 19 documents proved by him, which are nowhere shown to be fake, false or fabricated and further, PW2 has also extended necessary corroboration to the testimony of the plaintiff. As such, the ocular version of the PW1 stands corroborated on material aspects of the case by the documents as placed and proved on record by him and by PW2.
Accordingly, in considered opinion of the court, the plaintiff is entitled to decree in his favour and against the defendant for a sum of Rs.3,65,259/-. Accordingly, Issue No. 4 is decided in favour of the plaintiff.
28. Issue No. 5:-
Whether the plaintiff is entitled for further interest @15% from the date of filing of suit till the realization of the suit amount?"OPP The onus to prove this issue is on the plaintiff. As already discussed at length, in view of detailed observations made on issue no.4, in considered opinion of the Court, since the plaintiff is entitled to recover an amount of Rs.3,65,259/- from the defendant, hence, the plaintiff is also entitled to interest. Accordingly, interest @5% per annum on Rs.3,65,259/- is granted in favour of plaintiff from the date of filing of the suit till realization. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
29. Issue No. 6:-
"Whether the plaintiff is entitled for the costs of C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 16 of 19 the suit?" OPP The onus to prove this issue is on the plaintiff. In considered opinion of the court, in view of aforesaid discussion, in considered opinion of the Court, the plaintiff is able to show that he is entitled to decree in his favour alongwith interest and hence, the plaintiff is also entitled to costs of the suit. The issue is accordingly decided in favour of the plaintiff.
30. Issue No. 1:-
"Whether the suit is barred by limitation?" OPD The onus to prove this issue is on the defendant. As per record, the plaintiff has filed the present suit on 23.03.2021. Further, as per the plaintiff, he supplied the goods to the defendant, who made part payment through post dated cheques on 20.02.2019 and also on 25.03.2020. The defendant could not rebut the said contention of the plaintiff and further, the Hon'ble Supreme Court had extended the period of limitation in filing the suits at the relevant time due to spread of Pandemic Covid-19. Accordingly, in view of above, in considered opinion of the court, the suit of the plaintiff is well within the period of limitation. Accordingly, this issue is decided against the defendant.
31. Issue No. 2:-
"Whether the Court has pecuniary jurisdiction to entertain the suit?" OPD The onus to prove this issue is on the defendant. As per C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 17 of 19 record, the plaintiff has filed the suit for recovery of Rs. 3,65,259/-, details of which have already been discussed earlier at length.
In view of above, the defendant could not show that the plaintiff is not entitled to a sum of Rs. 3,65,259/- from him and hence, this court has pecuniary jurisdiction to entertain the suit. Accordingly, this issue is decided against the defendant.
32. Issue No. 3:-
"Whether the Court has territorial jurisdiction to deal with the case?" OPD The onus to prove this issue is on the defendant and admittedly, the residence of the defendant is in Sonia Vihar, Delhi, which comes within the territorial jurisdiction of this court. Accordingly, as as per section 20 of the Code of Civil Procedure, 1908, the court has territorial jurisdiction to deal with the case and this issue is accordingly decided against the defendant.
33. Issue No.7:-
"Relief"
In view of detailed observations made on aforesaid issues, the suit of the plaintiff is decreed in his favour and against the defendant for a sum of Rs. 3,65,259/- alongwtih interest @ 5% p.a. from the date of filing of suit till its realization C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 18 of 19 alongwith costs of the suit. The decree sheet be prepared accordingly.
File be consigned to the record room as per rules after compliance of necessary legal formalities. Dictated and Announced today i.e. on 10th October, 2022 in the open Court (BARKHA GUPTA) District Judge, Commercial Court, North East, Karkardooma Courts, Delhi C.S. (Comm.) 35/2021 Sandeep Jain vs. Sanjay Kumar page 19 of 19