Delhi District Court
M/S Telebyte Products Pvt. Ltd vs M/S Royal Plaza on 17 December, 2024
IN THE COURT OF SH. PITAMBER DUTT:
DISTRICT JUDGE (COMMERCIAL COURT-01)
EAST DISTRICT, KARKARDOOMA COURTS : DELHI
CS (Comm) No. 13/2023
M/s Telebyte Products Pvt. Ltd.
Through its Director / Authorized Signatory
Sh. Pawan Thakur
Having office at:-
D-29, Top Floor,
Acharya Niketan,
Mayur Vihar Phase-I,
Delhi - 110091. ................Plaintiff
Versus
M/s Royal Plaza
(Powered by Hotel Queen Road Pvt. Ltd.)
Regd. Address at Station Road,
19 Ashok Road, Connaught Place,
New Delhi - 110001. .............Defendant
Date of institution : 06.01.2023
Date of reserving judgment : 26.11.2024
Date of judgment : 17.12.2024
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiff against the defendant for seeking recovery of Rs.8,73,743.78P. along with pendente lite and future interest @ 18% Per Annum. The brief facts necessitated in filing of the present suit are given as under:-
2. The plaintiff has averred that they are engaged in the business of Digital Security Service and dealing with CCTV cameras, fire alarms, Networking Security Access System, FSL Cabling and installation of PI & switches. They got tender / Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:22 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 1 of 27 purchase order from defendant through Sh. Gurprabh Singh Sandhu, CSO Executive, for installation of 284 CCTV Cameras along with material supply and wiring setup of all fire alarm and to check all security system in entire hotel of the defendant.
3. The plaintiff has further averred that they installed CCTV cameras setup wiring of all fire alarms equipment in the hotel of the defendant, and raised bills but defendant has failed to clear the pending payment, despite service of the legal notice dated 28.09.2022.
4. The plaintiff has further averred that they filed an application under Section 12 A of the Commercial Courts Act before the District Legal Service Authority, East District, Karkardooma Courts, Delhi for seeking pre-institution mediation, but defendant did not participate in the said proceedings and a non-starter report was issued on 12.11.2022. On the basis of these averments, the present suit has been filed for adjudication.
5. Pursuant to the summons, defendant appeared and filed their written statement, taking preliminary objections that plaintiff has filed the suit on the basis of false claim; That illegal invoices and bills were raised by the plaintiff in collusion with Sh. G.S. Sandhu.
6. On merits, defendant has controverted all the averments made in the plaint. Defendant has averred that they are private limited company and alleged transaction was entered into by Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:42 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 2 of 27 plaintiff and Sh. G.S. Sandhu, previous employee of the defendant, in his personal capacity, only on some oral understanding between them, without any written contract. They further averred that CCTV cameras supplied by the plaintiff were defective from the inception and did not function properly.
7. The defendant has further averred that they have paid a sum of Rs.48,90,667.67P., for which invoices and challans were received, however, for the remaining amount, no challan or invoices were received, therefore, they are not liable to pay any further amount. All other averments have been denied. It is prayed that the suit may be dismissed with costs.
8. The plaintiff has filed replication, thereby controverted the averments made in the written statement and reiterated the averments made in the plaint.
9. On the basis of the pleadings of the parties, the Ld. Predecessor of this Court, vide order dated 02.09.2023, has framed the following issues for adjudication:-
ISSUES
1. Whether the plaintiff is entitled for a decree against the defendant in the sum of Rs.8,43,743.78P.
with interest, if any and if yes at what rate and for which period? (OPP).
2. Whether the present suit has been filed beyond the period of limitation? (OPD).
3. Whether the goods supplied by the plaintiff were defective from the inception and if yes, its effect?
Digitally signedPitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:39 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 3 of 27 (OPD).
4. Whether the transaction as alleged in the suit, was conducted with Sh. G.S. Sandhu in his personal capacity and if yes, its effect? (OPD)
5. Relief.
10. In order to prove their case, plaintiff has examined Sh. Sh. Pawan Thakur as PW-1, who reiterated the averments made in the plaint in his examination in chief. PW-1 has exhibited copy of legal notice dated 28.09.2022 along with postal receipt as Ex. PW-1/1, Non-starter Report dated 12.11.2022 as Ex. PW-1/2, Challans as Ex. PW-1/3 (colly), copy of his Aadhar Card as Ex. PW-1/4 (OSR), Authority Letter as Ex. PW - 1/5, Certificate under Section 65 B of the Indian Evidence Act as Ex. PW-1/6, Purchase order as Ex. PW - 1/7, Invoices and Bills as Ex. PW - 1/8 (Colly), printout of intimation of mails as Ex. PW-1/- (Colly).
11. Plaintiff has also examined Sh. Lalit Kumar as PW - 2, who exhibited ledger account of the plaintiff maintained by Hotel Queen Road Pvt. Ltd. as Ex. PW-2/A as well as Sh. Ravindra Kumar Yadav as PW - 3.
12. All the plaintiff witnesses have been thoroughly cross- examined by Ld. Counsel of the defendant.
13. In order to answer the claim of the plaintiff, defendant has examined Sh. Indraj Serohiwal as DW - 1, who reiterated the averments made in the written statement in his examination in Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:41 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 4 of 27 chief. DW-1 has exhibited ledger statement as Ex. DW-1/1.
14. DW - 1 has been duly cross-examined by Ld. Counsel of the plaintiff.
15. I have heard Sh. Dev Sagar, Ld. Counsel for the plaintiff, Sh. Sandeep Mittal, Ld. Counsel for the defendant, perused the pleadings, evidence and other material placed on record. My issue wise finding is as under:-
Issue no. 1. Whether the plaintiff is entitled for a decree against the defendant in the sum of Rs.8,43,743.78P. with interest, if any and if yes at what rate and for which period? (OPP).
The plaintiff has claimed that they got a tender / purchase order for installation of 284 CCTV Cameras along with material supply and wiring setup of all fire alarm and to check all security system in entire hotel of defendant. The plaintiff completed the said order and raised total bill of Rs.51,13,009.15P out of which defendant paid only a sum of Rs.48,47,657.67P and a sum of Rs.2,65,351.48 was due and outstanding, which defendant has failed to pay despite repeated requests.
16. The plaintiff has also claimed that they supplied material worth Rs. 2,06,491/-, vide five different challans, which has also not been paid by the defendant. The plaintiff has thus claimed a sum of Rs.8,43,743/- from the defendant towards outstanding amount, interest, litigation expenses as well as damages for mental harassment, caused by the defendant.
Digitally signedPitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:40 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 5 of 27
17. The defendant has claimed that the work done by the plaintiff was defective since the inception, despite the same, they paid the entire amount of Rs.48,90,667.63P to the plaintiff, for which invoices were received and no other amount is due and recoverable against them.
18. An examination of the pleadings evidence led on record shows that plaintiff has filed the present suit for seeking recovery of Rs.8,43,743/-, on the ground that they installed 284 CCTV Cameras along with material and set up wiring for all the fire alarms and checked the security systems and raised invoices Ex.PW-1/8 (Colly).
19. The ledger account and invoice Ex. PW-1/8 (Colly) as well as emails Ex. PW-1/9 are computer printout, thus these are electronic evidence.
20. Section 65B of the Indian Evidence Act, deals with the admissibility of electronic record, which reads as under:-
Section 65B. Admissibility of Electronic Records.
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:40 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 6 of 27 further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.Digitally signed
Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:39 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 7 of 27
21. A perusal of section 65B (1) & (2) of the Indian Evidence Act, 1872 clearly shows that electronic evidence is admissible only on furnishing certificate of conditions stipulated under clause 2 of section 65B.
22. A certificate under Section 65B of the Indian Evidence Act is a statement that confirms the authenticity of electronic evidence in court proceedings, which must include the following information:-
(i) Identification of the electronic record,
(ii) Description of how the electronic record was produced,
(iii) Details of the device used to produce the record.
(iv) Certification that the data was created by a computer or other electronic device that was commonly used for storing or processing information,
(v) Certification that the device was functioning properly at the relevant time,
(vi) Signature of a person in a position of authority over the device,
(vii) The certificate must be produced along with the electronic record when it's presented in court. If the certificate isn't produced at the right time, the court may declare the electronic evidence inadmissible.
23. A Constitutional Bench of the Hon'ble Supreme Court of India in "Anvar P.V. Vs. P.K. Basheer & Ors." reported as VIII (2014) SLT 223 has held as under:-
"Any documentary evidence by way of an electronic record Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:40 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 8 of 27 under the Evidence Act, in view of sections 59 and 65A, can be proved only in accordance with the procedure prescribed under section 65B.
Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a a computer. It may be noted that section starts with a non obstante clause. Thus, notwithstanding anything contained in the evidence act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under Sub-
Sections (2) are satisfied, without further proof or production of the original.
The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under section 65B (2). Following are the specified conditions under Section 65 B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:43 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 9 of 27 kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for sometime, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed in to the computer in the ordinary course of the said activity.
24. Recently, a Constitutional Bench of the Hon'ble Supreme Court of India in "Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal & Ors." (2020) 7 SCC 1, has held that:-
"32. Coming back to Section 65B of the Indian Evidence Act, sub-section (1) needs to be analyzed. The sub-section begins with a non-obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the "document" shall then be admissible in any proceedings. The words "...without further proof or production of the original..." make it clear that Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:42 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 10 of 27 once the deeming fiction is given effect by the fulfillment of the conditions mentioned in the Section, the "deemed document" now becomes admissible in evidence without further proof or production of the original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible.
33. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this purpose.
However, Section 65B(1) clearly differentiates between the "original" document - which would be the original "electronic record" contained in the "computer" in which the original information is first stored - and the computer output containing such information, which then may be treated as evidence of the contents of the "original"
document. All this necessarily shows that Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom - the former being primary evidence, and the latter being secondary evidence."
25. The above pronouncements of Hon'ble Supreme Court of India makes it absolutely clear that Electronic Evidence are admissible only if certificate in terms of section 65B (2) of Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:40 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 11 of 27 Evidence Act is filed alongwith electronic record and not otherwise.
26. The plaintiff has relied upon invoices Ex. PW-1/8 (colly) and emails Ex. PW - 1/9 (colly), which are computer printouts i.e. electronic evidence, for which a certificate under Section 65 B of the Indian Evidence Act was required to be filed by the competent person, who was the person in charge of that electronic device, from which these electronic evidences were downloaded.
27. The plaintiff has placed on record a Certificate Under Section 65 B of the Indian Evidence Act Ex. PW-1/6, which is reproduced as under:-
Certificate Under Section 65B of the Evidence Act Certified that the produced in said petition in electronic form, stored in Computer / laptop make intel, with a software i.e. Buzzy Version 17 and Micro Software Excel Sheet which is installed in Microsoft Windows 10 and printed by the plaintiff as per instructions or the plaintiff, said system remain in working condition during the period of viewing till produced through printer make (HP Printer). The Web Generated Electronic Record i.e. petition submitted is correct, stored in Electronic Record i.e. mentioned below:-
• Invoice, Bills and Ledgers
• Purchase order by Royal Plaza.
• Board of Resolution Copy.
Through
Date 19.02.2024
(ADVOCATE DEVSAGAR)
Digitally signed
Pitamber by Pitamber Dutt
CS (Comm) No. 13/2023 Dutt Date: 2024.12.17
15:08:43 +0530
M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 12 of 27
28. A perusal of the Certificate Ex. PW - 1/6, clearly shows that the said certificate is not in compliance of the requirement of Section 65 B of the Indian Evidence Act. The said certificate is not given by the person concerned, in whose custody, the said electronic device was lying, from which printout of ledger account, invoice Ex. PW-1/8 (Colly) as well as emails Ex.
PW-1/9 (colly) were downloaded.
29. The plaintiff has not filed the certificate of the person in whose control and custody the said electronic device was, from which these printouts were taken nor examined him as a witness. The said Certificate Ex. PW-1/8 is given by Ld. Counsel of the plaintiff, who is not the person competent to give such certificate. Moreover, none of the conditions prescribed under Section 65 B (2) (a) to (d) of the Indian Evidence Act have been mentioned in the said certificate. In the absence of certificate under Section 65 B of the Indian Evidence Act, the electronic evidence relied upon by the plaintiff i.e. ledger account and invoice Ex. PW-1/8 (Colly) and emails Ex. PW-1/9 (colly) are inadmissible for want of proper certificate.
30. It is also relevant that the title of the suit is M/s Telebyte Products Pvt. Ltd. However, plaintiff has not specified in the body of the plaint as to whether the plaintiff is a private limited company or some other legal entity.
31. Sh. Pawan Thakur has filed his affidavit in support of the plaint. In the said affidavit, Sh. Pawan Thakur has described himself as proprietor of M/s Telebyte Products Pvt. Ltd.
Digitally signedPitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:41 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 13 of 27 Meaning thereby that the person concerned, who filed the affidavit in support of the plaint was not even aware that whether the plaintiff was a proprietorship concern or a private limited company or any other legal entity.
32. The plaintiff has not even filed the statement of truth in consonance with the format prescribed in the Appendix of Commercial Court Act, 2015 with regard to Statement of Truth as clause 5 of the said format of Statement of Truth, which is mandatory, has not been inserted.
33. Sh. Pawan Thakur has claimed himself to be the proprietor cum AR of the plaintiff and has also exhibited the Authority Letter as Ex. PW-1/5, which is reproduced herein below:-
TELEBYTE PRODUCTS PVT. LTD.
REGD. OFFICE: D-29, TOP FLOOR, ACHARYA NIKETAN, MAYUR VIHAR, PHASE - 1, DELHI -
110091
CERTIFIED COPY OF THE EXTRACTS OF
RESOLUTION PASSED BY DIRECTOR /
PROPRIETOR OF TELEBYTE PRODUCTS PVT. LTD. BY REGISTERED OFFICE OF THE COMPANY. That Director / Proprietor after Discussion and conclusion Passed the Following Resolution:-
RESOLVED THAT Mr. Pawan Thakur, Mr. Manmohan, Sole Partner / Proprietor of the said company are here by authorized to file the Civil Recovery Case titled U/s 2 (1) C of the Commercial Court Act, 2015 (4 of 2016) on behalf of the company against Royal Plaza (Hotel Queen Road) Pvt. Ltd., Registered Address:- 19 Ashoka Road, Connaught Place, New Delhi - 110001 and to complete all the formalities such as Notice / documentation / complaint / recovery case etc., to appear, to give evidence, to dispose, to compromise and for the disposal of the case before the concerned Hon'ble Court.Digitally signed
Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:41 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 14 of 27
34. A perusal of the Authority Letter Ex. PW-1/5 clearly shows that the said authority letter is not in consonance with the law as plaintiff was not aware, whether it was a proprietorship firm or a partnership firm or a private limited company.
35. It was also not clear to the plaintiff whether Sh. Pawan Thakur and Sh. Manmohan, were the proprietors, partners or directors of the plaintiff firm. Both these persons have authorized themselves to file the present suit against the defendant. No other person stated to have attended the meeting in which Resolution Ex. PW-1/5 was passed.
36. The Hon'ble High Court of Delhi in "M/s Nibro Limited Vs National Insurance Company Limited", AIR 1991 Del 25 has held that:-
"It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting in all other cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far- reaching effects. It often affects policy and finances of the company. Thus, unless a Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:42 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 15 of 27 power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company.
Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.
Chapter IV of the Delhi High Court (Original Side) Rules deal with the question of presentation of suits. Under this Rule, suit can be presented by a duly authorised agent or by an advocate duly appointed by him for the purpose. This authorization, in my view, in the case of a company can be given only after a decision to institute a suit is taken by the Board of Directors of the company. The. Board of Directors may in turn authorise a particular director, principal officer or the secretary to institute a suit."
37. The Authority Letter Ex.PW-1/5, placed by the plaintiff on record for filing the present suit, cannot be termed as a resolution passed by the Board of Directors as the persons, who signed the said resolution, themselves were not aware about the status of the plaintiff, whether plaintiff is a proprietorship concern, parntership firm or a private limited company.
38. A co-joint reading of the plaint, affidavit and statement of truth filed along with the plaint and authority letter Ex. PW-1/5 clearly shows that the plaintiff has filed the present suit in a very Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:40 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 16 of 27 casual manner, without complying with the legal requirement for filing a suit for and on behalf of a private limited company.
39. The plaintiff has claimed that a sum of Rs.2,58,000/- was due and recoverable against the defendant towards the principal amount, which has been denied by the defendant.
40. The plaintiff has examined Sh. Pawan Thakur as PW - 1. During cross-examination, PW - 1 was put various questions by Ld. Counsel of the defendant, which he answered. Few of those questions are relevant, qua the above claim of the plaintiff, which are reproduced herein below:-
Q. Is it correct that in the ledger statement filed by you, you have not booked an amount of Rs.19,626/- which is inclusive of TDS towards the new year ticket booked by you in the financial year 2018-19? A. It is correct.
Q. Is it correct that in the ledger statement filed by you, you have not booked an amount of Rs.29,500/- towards invoice no. TPPL/PR/13/19 dated 04.04.2019 which already stands paid?
A. It is a matter of record.
Q. Is it correct that in the ledger statement filed by you, you have not given credit for the payments made by the defendant to you vide cheque no. 105087 dated 17.04.2019, cheque no. 008262 dated 06.02.2019, credit of Rs.37,170/- and adjustment of Rs.1,32,330/- towards reversal of installation of cameras charges?
A. It is not mentioned in the ledger.
Digitally signedPitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:41 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 17 of 27 Q. Can you please tell that as to when the invoice no. TPPL/PR/51/18 dated 01.10.2018 for Rs.15,821/-, invoice no. TPPL/PR/130/18 dated 29.03.2019 for Rs.4,126.70/- and invoice no. TPPL/PR/128/18 dated 29.03.2019 for Rs.5,938.30/- totaling to Rs.25,886.01/- were given by you to the defendant ?
A. There is no document on record to show that theses invoices were handed over to the defendant. (Vol. The defendant has claimed GST benefit against these invoices, however we have not placed on record any document to show that defendant has claimed GST benefit against these invoices)
41. The above answers given by PW-1 to the questions put to him during his cross-examination, clearly shows that plaintiff has admitted that they received a sum of Rs.2,18,624/- from the defendant through various modes but has not mentioned the said amount in their ledger account.
42. The plaintiff has also admitted that invoices for the goods worth Rs. 25,886.01P were never handed over to the defendant. When the invoice for the goods worth Rs.25,886.01P were never handed over to the defendant, then plaintiff cannot seek recovery of the said amount from the defendant.
43. The plaintiff has thus admitted that they have not shown the amount of Rs.2,18,624/-, received by them from the defendant, in their ledger account. They have also failed to prove that they supplied goods against invoices worth Rs. 25,886.01P. When both these amounts are clubbed together, it shows that claim of the plaintiff for recovery of Rs.2,58,000/- is not Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:43 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 18 of 27 sustainable as plaintiff has not included the amount of Rs.2,18,624, so received by it from the defendant and also claimed amount of invoices of Rs.25,886.01P, which were never delivered to the defendant.
44. The plaintiff has also claimed a sum of Rs.2,06,491/- for the material supplied to the defendant. Vide five challans Ex.PW-1/3 (Colly) dated 01.10.2018, 06.10.2018, 10.10.2018, 26.10.2018 and 16.11.2018. In none of these challans amount of goods delivered by the plaintiff to the defendant has been mentioned.
45. To establish the said claim, plaintiff has examined Sh. Pawan Thakur as PW - 1. During cross-examination, various questions were put to PW - 1 with regard to the said claim as well, which he answered. Relevant questions put to PW - 1 and their answers given by him are reproduced herein below:-
Q. Can you please tell against which invoices are you claiming an amount of Rs.2,65,351.78/- and Rs.2,06,491/- in para 6 of your evidence?
A. The amount of Rs.2,06,491/- has been claimed against challans at pages 66-70, now exhibited as PW-1/DA (Colly).
Q. Can you please show from these five challans, Ex.PW1/DA (Colly) the amount as stated above? A. The amount is not mentioned in these five challans.
Q. Was any invoice raised by you against these five challans, PW-1/DA (colly)?
A. Yes.
Digitally signedPitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:42 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 19 of 27 Q. Can you show from the record the invoices raised against the said five challans, Ex.PW1/DA (colly)? A. The total invoices raised are part of Ex. PW1/8, from page no. 34-65. The relevant invoices against the five challans Ex.PW1/DA are placed at Page no. 48, 49, 50, 52 & 54 all part of Ex.PW1/8.
Q. Is it therefore correct that the amount of Rs.2,06,491/- as being claimed by you in the suit for bill against material challan is in fact against your invoice dated 29.03.2019 as being claimed by you towards cable installation charges?
A. Yes. It is correct.
Q. Is it correct that the document filed by you at pages 26 to 33 forming part of Ex.PW1/8 (Colly) is the printout of the ledger maintained by the plaintiff in respect of the defendant?
A. Yes. It is correct.
Q. Is it correct that this is the complete ledger statement from 2016 till the date of the filing of the suit? A. Yes. It is correct.
Q. Is it correct that except for pages from 26 to 33 forming part of Ex.Pw1/8 (Colly) no other ledger statement has been filed by you in the suit? A. It is correct.
Q. Is it correct that as per this ledger statement, you are claiming an amount of Rs.2,58,761.78/-? A. Yes. It is correct.
Digitally signedPitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:40 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 20 of 27 Q. Is it correct that in this ledger statement you have not booked the amount of Rs.2,06,491/- towards the invoice raised by you for the cable installation charges as claimed by you?
A. It is correct. (Vol. Installation and cable charges also applicable) Q. Can you show from invoice of Rs.2,06,491/- that this is also towards cable charges?
A. The aforesaid amount is reflecting in the ledger account and is towards installation charges for CCTV Cameras and cable charges.
Q. Is it correct that the total of the invoices placed at page no. 48, 49, 50, 52 & 54 forming part of Ex.PW1/8 (Colly) is Rs.85,318/-?
A. Yes. It is correct.
46. The above testimony of PW - 1 clearly shows that he was not aware whether any invoice was raised against challan Ex. PW-1/3 or not? At one place he claimed that invoices annexed at pages no. 48, 49, 50, 52 and 54 were raised against these challans. Whereas in a later part of his examination, he claimed that invoice dated 29.03.2019 of amount of Rs.2,06,491/- was issued qua challan Ex. PW-1/3 (colly).
47. The plaintiff has not placed on record any material to show that goods worth Rs.2,06,491/- were ever supplied by the plaintiff to the defendant or that any invoice qua these goods were ever raised by the plaintiff.
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48. I have already held that the ledger and invoices Ex.PW-1/8 (colly) relied upon by the plaintiff to support their case are inadmissible for want of proper Certificate under Section 65 B of the Indian Evidence Act.
49. The plaintiff has also claimed Rs.1,00,000/- towards mental harassment and damages. However, no evidence whatsoever has been adduced by the plaintiff to prove that any mental harassment was caused to them by the defendant, entitling the plaintiff for damages of Rs.1,00,000/- as claimed.
50. In view of the above facts and circumstances, I am of the considered view that the plaintiff has failed to prove on record that they are entitled to recover a sum of Rs.2,58,761.48P from the defendant towards balance amount. The plaintiff has also failed to prove that they supplied material worth Rs.2,06,491/- to the defendant. The plaintiff has also failed to prove on record that they suffered any mental harassment or entitled for damages for mental harassment from the defendant. The plaintiff has failed to prove on record that they are entitled to recover a sum of Rs.8,43,743.48P from the defendant. The plaintiff has thus failed to discharge the onus of issue no. 1, same is accordingly decided against the plaintiff.
51. Issue no. 2 Whether the present suit has been filed beyond the period of limitation? (OPD).
The plaintiff has filed the present suit for seeking recovery of Rs.8,43,743/- on the basis of five challans Ex.PW-1/3 (colly) and invoices Ex.PW-1/8 (colly), which though were not proved Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:43 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 22 of 27 in accordance with law but were raised uptill 16.11.2018.
52. The present suit has been filed by the plaintiff for seeking recovery of the amount due and recoverable against invoices Ex.PW-1/8, starting from 29.06.2018 to 27.04.2019.
53. PW - 1 during his cross-examination has admitted that they have not raised any invoice between May 2019 till June 2022. Thus, the last invoice, as per the plaintiff was in May 2019, for which present suit has been filed.
54. The amount for all the invoices raised in the year 2022 has already been paid and thus the present suit has been filed only with respect to amount, which was due and recoverable for the invoices raised prior to May 2019.
55. The cause of action for filing the present suit thus accrued in May 2019 and same could have been filed up till May 2022. However, during that time Covid-19 gripped the entire world and the Hon'ble Supreme Court of India had taken cognizance of the said situation prevailing at that time and passed the Order dated 10.01.2022 in Suo Moto Writ Petition (C) No. 3 of 2020, whereby the Hon'ble Supreme Court of India has extended the period of limitation because of the peculiar situation created by Covid - 19 Pandemic from March 2020 to March 2022 and further for 90 days from 31.03.2022.
56. Recently, the Hon'ble Supreme Court of India in "Ajay Protech Pvt. Ltd. Vs General Manager & Ors.", Civil Appeal Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:42 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 23 of 27 No. 13004 / 2024, date of decision 22.11.2024 has explained, which period is to be excluded while calculating the period of limitation in para 12 of the judgment, which is reproduced as under:-
"12. The issue before us is not whether the application under Section 29A(4) is filed within the permissible time for seeking extension, i.e., 12 months, followed by another 6 months at the consent of the parties. The real issue is whether there is a sufficient cause for the Court to extend the period for making of the award. For considering whether there is a sufficient cause or not, it is necessary to take into account the following events. As indicated earlier, even before expiry of the period of 12 months under Section 29A(1), commencing from 09.10.2019 (date of completion of pleadings), the COVID pandemic had started.
The period between 15.03.2020 and 28.02.2022 is anyways mandated to be excluded from periods of limitation.9 Therefore, from the date of completion of pleadings till 15.03.2020, only a period of 5 months is taken.
If the remainder of the 18 months period is reckoned from 28.02.2022, the said period would expire on 31.03.2023. In other words, the appellant would have been within the period specified under Section 29A(1) read with Section 29A(3) had it filed the application by such date. However, the problem arose because the application was filed on 01.08.2023.
Really speaking, it is the Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:41 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 24 of 27 period commencing from 31.03.2023 to 01.08.2023 that the Court is to take into account for considering whether there is sufficient cause to exercise the power under Section 29A(5) to extend the period."
57. The above proposition laid down by the Hon'ble Supreme Court of India, makes it absolutely clear that the period between 15.03.2020 to 28.02.2022 shall be ousted for the purpose of computation of period of limitation and the period as available on 15.03.2020 shall be available after 28.02.2022. By 15.03.2020, only 10 months period had elapsed and plaintiff was having 2 years and 2 months for filing the present suit, which elapsed during Covid - 19.
58. Thus, in view of the judgment passed by the Hon'ble Supreme Court of India in "Ajay Protech Pvt. Ltd. Vs General Manager & Ors." (Supra), the plaintiff was having further period of 2 years and 2 months w.e.f. 28.02.2022 for filing the present suit.
59. The present suit has been filed on 05.03.2023 i.e. within the period of limitation after excluding the period of Covid - 19, same is thus not barred by limitation.
60. In view of the above facts and circumstances, I am of the considered view that the plaintiff has filed the present suit within the period of limitation. The defendant has thus failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant.Digitally signed
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61. Issue no. 3. Whether the goods supplied by the plaintiff were defective from the inception and if yes, its effect? (OPD).
The defendant has claimed that the plaintiff supplied the goods, which were defective since the inception. However, defendant has failed to prove the said fact by leading cogent evidence on record. In the absence of any cogent proof, the plea taken by the defendant that the goods supplied by the plaintiff were defective since inception has remained unsubstantiated and unproved.
62. In view of the above facts and circumstances, I am of the considered view that the defendant has failed to discharge the onus of issue no. 3, same is accordingly decided against the defendant.
63. Issue no. 4. Whether the transaction as alleged in the suit, was conducted with Sh. G.S. Sandhu in his personal capacity and if yes, its effect? (OPD) The onus to prove this issue is upon the defendant. The defendant, however, has failed to adduce any cogent proof to show that transaction as alleged in the suit, was conducted by the defendant with Sh. G.S. Sandhu in his personal capacity and not with the plaintiff. The defendant has thus failed to discharge the onus of issue no. 4, same is accordingly decided against the defendant.
64. Issue no. 5 Relief.
In view of my findings on issues no. 1, I am of the Digitally signed Pitamber by Pitamber Dutt CS (Comm) No. 13/2023 Dutt Date: 2024.12.17 15:08:39 +0530 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 26 of 27 considered view that the plaintiff has failed to prove on record that they are entitled to recover a sum of Rs.8,73,743.78P. along with interest from the defendant. Accordingly, the suit filed by the plaintiff against the defendant is dismissed. However, there is no order of cost. Decree Sheet be prepared accordingly.
File be consigned to Record Room. Announced in the Open Court Digitally signed Pitamber by Pitamber Dutt on 17th of December, 2024. Dutt Date: 2024.12.17 15:09:47 +0530 (PITAMBER DUTT) District Judge (Commercial Court-01) East District Karkardooma Courts, Delhi CS (Comm) No. 13/2023 M/s Telebyte Products Pvt. Ltd. Vs M/s Royal Plaza Page No. 27 of 27