Delhi District Court
Sandeep Optical Co Pvt Through Its ... vs Laxmi Eye Care Llp on 16 October, 2024
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL COURT)-11
(CENTRAL): TIS HAZARI COURTS, DELHI
CS (Comm.) No. 70/2022
CNR No.: DLCT01-000079-2022
Sandeep Opticals Co. Pvt. Ltd.
Through its Director / AR:
Mr. Sandeep Bhandari
267/1, Kandle Kashan Street
Fatehpuri, Delhi-110006
..... Plaintiff
VERSUS
1. Laxmi Eye Care LLP
G-52, Green Park, New Delhi-110016
2. Ms. Drishti Pahwa
Partner: Laxmi Eye Care LLP
G-52, Green Park, New Delhi-110016
3. Mr. Adhiraj Karan Mehra
Partner: Laxmi Eye Care LLP
G-52, Green Park, New Delhi-110016
4. Mr. Sandeep Pahwa
Proprietor: Laxmi Opticals
C-6/13, Ground Floor, Vasant Vihar
New Delhi-110057
..... Defendants
Date of Institution : 04.01.2022
Date of Arguments : 18.09.2024
Date of Judgment : 16.10.2024
JUDGMENT
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 1 of 39 THE SUIT:
1. The plaintiff, through its director / authorized representative Mr. Sandeep Bhandari, instituted a suit for recovery of Rs. 24,10,741/- (comprising principal amount of Rs.
19,67,094/- and Rs. 4,43,647/- as interest @ 24% per annum w.e.f. 13.01.2021 to 21.12.2021) against the defendants alongwith pendente-lite and future interest @ 24% per annum on the principal amount.
THE PARTIES:
2. The plaintiff is a Private Limited Company.
3. The defendant No. 1 is a Limited Liability Partnership (LLP) Firm. The defendant No. 2 and 3 are its partners. The defendant No. 2 is a proprietor of 'M/s. Laxmi Eye Care'. The defendant No. 4 is a proprietor of 'M/s. Laxmi Opticals'. The defendants are engaged in business of optical goods including optical lenses, frames and sun-glasses (In short 'the goods').
THE TRANSACTION:
4. Initially, the plaintiff had been dealing with the defendant No. 4. The plaintiff supplied the goods to the defendant No. 4 against invoices. The plaintiff debited price of the goods sold and credited payments received from the defendant No. 4 in ledger maintained in the name of 'M/s. Laxmi Opticals'.
5. In FY 2016-17, the opening balance against the defendant No. 4 was Rs. 8,84,876/-. The defendant No. 4 had purchased goods worth Rs. 12,61,402/-, vide 378 invoices. The defendant No. 4 made payment of Rs. 11,50,070/- and returned goods worth Rs. 31,224/-, vide 7 credit notes. As such, the plaintiff carried forward an amount of Rs. 9,64,984/- to the next financial year.
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6. In FY 2017-18, the defendant No. 4 purchased goods worth Rs. 1,16,747/-, vide 66 invoices. The defendant No. 4 made payment of Rs. 2,89,103/-. The defendant No. 4 returned goods worth Rs. 71,722/-, vide 5 credit notes. As such, the plaintiff carried forward an amount of Rs. 7,20,906/- to the next financial year.
7. In FY 2017-18, the defendant No. 2 formed a proprietorship concern i.e. 'M/s. Laxmi Eye Care'. The defendant No. 2 approached the plaintiff to purchase optical goods i.e. lenses, sun-glasses and frames. The plaintiff had parallel transactions with 'M/s. Laxmi Eye Care' and 'M/s.
Laxmi Opticals' since April, 2017. The plaintiff opened a ledger account in the name of 'M/s. Laxmi Eye Care'. The defendant No. 2 purchased goods worth Rs. 9,85,724/-, vide 277 invoices. The defendant No. 2 made payment of Rs. 9,28,780/-. The defendant No. 2 returned goods worth Rs. 28,939/-, vide 7 credit notes. As such, the plaintiff carried forward an amount of Rs. 28,005/- to the next financial year.
8. In the meanwhile, the defendant No. 2 and 3 formed the defendant No. 1 i.e. 'M/s. Laxmi Eye Care LLP' on 01.06.2017. In the month of December, 2017, the defendant No. 2 to 4 approached the plaintiff in order to purchase the goods for the defendant No. 1 parallelly. The plaintiff opened a ledger account in the name of 'M/s. Laxmi Eye Care LLP'. The defendant No. 1 purchased goods worth Rs. 14,19,958/- w.e.f. 01.12.2017 to 31.03.2018, vide 184 invoices. The defendant No. 1 returned goods worth Rs. 2,722/-, vide 2 credit notes. As such, the plaintiff carried forward an amount of Rs. 14,17,236/- to the next financial year. It is relevant to note that the defendant No. 2 and 4 were also purchasing goods during that period.
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9. In the month of March, 2018, the defendant No. 4 had approached the plaintiff and informed that he had closed the business in the name of 'M/s. Laxmi Opticals', and he was transferring the stock and balances of 'M/s. Laxmi Opticals' to the defendant No. 1 with the consent of the defendant No. 2 and 3. The defendant No. 4 also requested the plaintiff to transfer the outstanding amount of 'M/s. Laxmi Opticals' to the ledger account of the defendant No. 1 on 31.03.2019.
10. On 01.04.2018, the defendant No. 2 also approached the plaintiff and requested to transfer the outstanding amount of Rs. 28,005/- against 'M/s. Laxmi Eye Care' to the ledger account of the defendant No. 1. The plaintiff accepted the request of the defendants and made an entry in ledger account of the defendant No. 1 regarding transfer of balance of 'M/s. Laxmi Eye Care'.
11. In FY 2018-19, the defendant No. 4 purchased goods worth Rs. 10,758/-, vide 6 invoices. As such, the plaintiff carried forward an amount of Rs. 7,31,664/- to the next financial year.
12. In FY 2018-19, the opening balance against the defendant No. 1 was Rs. 14,17,236/-. On 01.04.2018, the plaintiff transferred an amount of Rs. 28,005/- due from 'M/s. Laxmi Eye Care' to the ledger account of the defendant No. 1. The plaintiff closed ledger account of 'M/s. Laxmi Eye Care'. The defendant No. 1 purchased goods worth Rs. 31,98,145/-, vide 599 invoices. The defendant No. 1 made payment of Rs. 28,83,746/-. The defendant No. 1 returned goods worth Rs. 32,311/-, vide 12 credit notes. In the end of FY 2018-19, an amount of Rs. 16,99,324/- was outstanding against the defendant No. 1.
13. On being informed that the defendant No. 1 shifted from Karol Bagh to Green Park, the plaintiff opened a new ledger account in the name of 'M/s. Laxmi Eye Care LLP' (Green Park) on 01.04.2019.
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14. On 01.04.2019, the plaintiff transferred an amount of Rs. 7,31,664/- due from 'M/s. Laxmi Opticals' and an amount of Rs. 28,005/- due from 'M/s. Laxmi Eye Care' to ledger account of 'M/s. Laxmi Eye Care LLP' (Green Park).
15. In FY 2019-20, 'M/s. Laxmi Eye Care LLP' (Green Park) had purchased goods worth Rs. 11,65,411/-, vide 426 invoices. The defendant No. 1 made payment of Rs. 13,44,808/-. The defendant No. 1 returned goods worth Rs. 1,19,653/-, vide 43 credit notes. As such, the plaintiff carried forward an amount of Rs. 20,72,104/- to the next financial year.
16. On 08.06.2019, the plaintiff created 2 separate ledger accounts in the name of 'M/s. Laxmi Eye Care LLP' (Green Park) and 'M/s. Laxmi Eye Care LLP' (Shipra Mall) as it was having parallel transactions with them since 08.06.2019.
17. In FY 2019-20, 'M/s. Laxmi Eye Care LLP' (Shipra Mall) purchased goods worth Rs. 18,217/-, vide 9 invoices. As such, the plaintiff carried forward an amount of Rs. 18,217/- to the next financial year.
18. In FY 2020-21, 'M/s. Laxmi Eye Care LLP' (Green Park) purchased goods worth Rs. 2,00,921/-, vide 108 invoices. The defendant No. 2 and 3 made payment of Rs. 3,21,426/-. The defendant No. 1 returned goods worth Rs. 3,334/-, vide 2 credit notes. In FY 2020-21, the opening balance against 'M/s. Laxmi Eye Care LLP' (Shipra Mall) was Rs. 18,217/-. The defendant No. 1 purchased goods from the plaintiff worth Rs. 614/-, vide invoice. As per ledger, an amount of Rs. 19,67,094/- was due against 'M/s. Laxmi Eye Care LLP' (Green Park) and 'M/s. Laxmi Eye Care LLP' (Shipra Mall). The defendants made last payment of Rs. 76,100/- against ledger account of 'M/s. Laxmi Eye Care LLP' on 13.01.2021.
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19. The plaintiff sent a demand notice dated 07.10.2020, through speed post, to the defendants. The defendant No. 1 to 3 were served with the said notice on 09.10.2020 and the defendant No. 4 was served with the said notice on 10.10.2020. The defendants neither replied nor paid the outstanding amount of Rs. 19,67,094/-. The plaintiff claimed an amount of Rs. 4,43,647/- as interest @ 24% per annum w.e.f. 13.01.2021 to 21.12.2021. Therefore, the plaintiff filed this suit for recovery of Rs. 24,10,741/- with interest @ 24% per annum. SERVICE OF SUMMONS:
20. The defendant No. 2 to 4 were served with the summons of the suit on 04.04.2022. The defendant No. 1 was served with the summons of the suit on 05.04.2022. However, the defendants neither appeared nor filed written statement. The Court, vide order dated 03.06.2022, proceeded ex-parte against the defendants.
APPLICATIONS UNDER SECTION 9 RULE 7 READ WITH SECTION 151 OF 'THE CODE OF CIVIL PROCEDURE, 1908':
21. The defendant No. 1 to 3 and the defendant No. 4 filed applications under Order 9 Rule 7 read with Section 151 CPC. The Court, vide order dated 03.06.2023, dismissed the said applications. CM (M) 1887/2023:
22. The defendant No. 4 challenged order dated 03.06.2023.
Hon'ble High Court of Delhi, vide order dated 27.07.2023, dismissed CM (M) 1887/2023, as under:
"10.1. In view of the aforesaid findings of the Trial Court, the period of 120 days from the service of summons through registered post on 05.04.2022 stood expired on 03.08.2022. In these facts, the right of the Petitioner to file his written statement stands forfeited, in view of the provisions of order VIII Rule 1 CPC as applicable under the Commercial Courts Act, 2015 as well as the judgment of Supreme Court in SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar and Infrastructure Pvt. Ltd. and Ors., (2019) 12 SCC 210....."
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 6 of 39 PLAINTIFF'S EVIDENCE:
23. Mr. Sandeep Bhandari, Authorized Representative / Director of the plaintiff appeared as PW-1. He deposed on strength of affidavit Ex.PW1/A. He relied on documents, as under:
Sl No Documents Exhibits 1. Printout of Company Master Data of the plaintiff Ex.PW1/1 2. Board Resolution dated 29.09.2020 Ex.PW1/2
3. Ledger Account of the defendant No. 4 for FY 2016-17 Ex.PW1/3
4. Ledger Account of the defendant No. 4 for FY 2017-18 Ex.PW1/4
5. Ledger Account of the defendant No. 2 for FY 2017-18 Ex.PW1/5
6. Invoices for the period from 10.04.2017 to 31.08.2017 Ex.PW1/6 to qua 'M/s. Laxmi Eye Care' Ex.PW1/61 and Ex.PW1/63 to Ex.PW1/130
7. Credit Notes dated 29.06.2017 and 25.08.2017 issued Ex.PW1/62 qua 'M/s. Laxmi Eye Care' and Ex.PW1/131
8. Tax Invoices dated 01.09.2017 to 27.02.2018 and Ex.PW1/132 Credit Notes qua 'M/s. Laxmi Eye Care' to Ex.PW1/265
9. Ledger Account of the defendant No. 1 for FY 2017-18 Ex.PW1/266
10. Tax Invoices dated 02.12.2017 to 30.03.2018 including Ex.PW1/267 credit note qua the defendant No. 1 to Ex.PW1/449
11. Ledger Account of M/s Laxmi Opticals for FY 2018-19 Ex.PW1/450 12 Tax Invoices dated 25.05.2018 to 09.07.2018 qua the Ex.PW1/451 defendant No. 4 to Ex.PW1/456
13. Ledger Account of Laxmi Eye Care for FY 2018-19 Ex.PW1/457
14. Ledger Account of the defendant No. 1 for FY 2018-19 Ex.PW1/458
15. Ledger Account of Laxmi Opticals for FY 2019-20 Ex.PW1/459
16. Ledger Account of 'M/s. Laxmi Eye Care LLP' (Green Ex.PW1/460 Park) for FY 2019-20
17. Tax Invoices dated 02.04.2019 to 19.03.2020 including Ex.PW1/461 credit notes qua 'M/s. Laxmi Eye Care' (Green Park) to Ex.PW1/827
18. Ledger Account of 'M/s. Laxmi Eye Care LLP' (Shipra Ex.PW1/828 Mall) for FY 2019-20 CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 7 of 39
19. Tax Invoices dated 08.06.2019 to 20.03.2020 qua 'M/s. Ex.PW1/829 Laxmi Eye Care LLP' (Shipra Mall) to Ex.PW1/837
20. Ledger Account of 'M/s. Laxmi Eye Care LLP' (Green Ex.PW1/838 Park) for FY 2020-21
21. Tax Invoices dated 06.05.2020 to 12.10.2020 qua 'M/s. Ex.PW1/839 Laxmi Eye Care LLP' (Green Park) to Ex.PW1/906
22. Ledger Account of 'M/s. Laxmi Eye Care LLP' (Shipra Ex.PW1/907 Mall) for FY 2020-21
23. Tax Invoice dated 28.07.2020 qua 'M/s. Laxmi Eye Ex.PW1/908 Care LLP' (Shipra Mall)
24. Legal Notice dated 07.10.2020 Ex.PW1/909
25. Speed post receipts bearing No. ED394758064IN, Ex.PW1/910 ED394758055IN, ED394758047IN and ED394758271IN all dated 08.10.2020
26. Tracking Report of the speed post receipt bearing No. Ex.PW1/911 ED394758064IN
27. Tracking Report of the speed post receipt bearing No. Ex.PW1/912 ED394758055IN
28. Tracking Report of the speed post receipt bearing No. Ex.PW1/913 ED394758047IN
29. Tracking Report of the speed post receipt bearing No. Ex.PW1/914 ED394758271IN
30. Certificate under Section 65B of 'The Indian Evidence Ex.PW1/915 Act, 1872'
31. Non-Starter Report dated 11.11.2021 Ex.PW1/916 APPEARANCE:
24. The Court has heard arguments of Ms. Tulna Rampal, Ld. Counsel for the plaintiff and Mr. Kunal Madan, Ld. Counsel for the defendants and examined the pleadings and documents and written arguments filed by the parties.
CONTENTIONS OF THE PLAINTIFF:
25. Ld. Counsel for the plaintiff contended that PW-1 Sandeep Bhandari is a director of the plaintiff-company and he is competent to sign and verify the plaint under Order 29 Rule 1 CPC. She contended that PW-1 Sandeep Bhandari signed and verified the plaint and instituted the suit and therefore, the plaint was signed and verified by a competent person.
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26. Ld. Counsel for the plaintiff contended that the plaintiff was maintaining ledger regarding the goods supplied and payments received from the defendants. She contended that the transaction did not terminate with one supply. She contended that the outstanding amount reflected in the ledger was carried forward to the next year. She contended that the entire transaction reflected one cause of action and not separate causes of action. She contended that the plaintiff served demand notice Ex.PW1/909 upon the defendants. She contended that the defendants were served with the said demand notices through speed post, vide tracking reports Ex.PW1/911 to Ex.PW1/914.
However, the defendants did not reply the said notices. She contended that the defendants made last payment of Rs. 76,100/- on 13.01.2021 against 'M/s. Laxmi Eye Care LLP' (Green Park). She contended that the defendants continued to purchase the goods and made part payments. She contended that therefore, cause of action for institution of the suit arisen on 13.01.2021. She contended that the suit is within limitation. In that regard, she relied upon judgments of Hon'ble High Court of Delhi in Ashok Parshad vs. M/s. Mahalakshmi Sugar Mills Co. Ltd., (2013) SCC OnLine Del 3629 and Bharath Skins Corporation vs. Taneja Skins Co. Pvt. Ltd., (2011) SCC OnLine Del 5523. She contended that the plaintiff has discharged the onus of proof. She contended that the plaintiff produced ledger for FY 2020-21 pertaining to 'M/s. Laxmi Eye Care LLP' (Green Park) Ex.PW1/838 and 'M/s. Laxmi Eye Care LLP' (Shipra Mall) Ex.PW1/907 reflecting outstanding amount as Rs. 19,48,263.60/- and Rs. 18,831/- respectively. She contended that the plaintiff has produced invoices, original delivery challans Ex.PW1/D1 (colly.) and GST Returns Ex.PW1/D2 (colly.).
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27. Ld. Counsel for the plaintiff relied upon judgment in Haryana Medical Hall and Others vs. Dr. Roshanlal Aggarwal and Sons Pvt. Ltd., 2023 SCC OnLine Del 8105. She contended that SLP (C) No. 2812/2024 against the said judgment was dismissed by Hon'ble Supreme Court of India on 19.02.2024. She contended that the plaintiff has to discharge the onus on the scale of 'preponderance of probabilities' and not 'beyond reasonable doubt'. She contended that the plaintiff has led credible evidence to prove transactions with the defendants since 2016 to 2021. She contended that the plaintiff is entitled to the amount due against the defendants, as on 13.01.2021. She contended that the plea of misjoinder and non-joinder of the parties raised by the defendants is not sustainable. She contended that the defendants are related to each other. She contended that the amount outstanding against the defendant No. 4 was transferred to ledger of the defendant No. 1 Ex.PW1/460 on 01.04.2019 with the consent of the defendant No. 2 and 3, partners of the defendant No. 1, and on instruction of the defendant No. 4. In that regard, she referred para No. 14 and 15 of the plaint, and cross-examination of PW-1 Sandeep Bhandari, conducted on 22.11.2023 and 02.02.2024. She contended that the evidence of PW-1 Sandeep Bhandari remained consistent and unrebutted. She contended that there is no statutory embargo on transfer of entries from one ledger to another. She contended that the plaintiff transferred amount due against the defendant No. 4, on his instruction and with the consent of the defendant No. 2 and 3, partners of the defendant No. 1, to ledger of the defendant No. 1. She contended that in any case any objection to misjoinder of causes of action should be taken at the earliest opportunities and otherwise, it is deemed to have been waived.
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28. Ld. Counsel for the plaintiff contended that the defendants forfeited their right to file written statement and no such objection regarding misjoinder of parties can be entertained. She contended that the defendants have a limited right to cross-examine PW-1 Sandeep Bhandari. She contended that the defendants have a right to demonstrate falsity and weakness of the case of the plaintiff. However, the defendants cannot be permitted to introduce their defence either directly or in the form of suggestion. In that regard, she relied upon judgments in Modula India vs. Kamakshya Singh Deo, (1988) 4 SCC 619 and Shukla Malhotra & Ors. vs. Dee Pee Kagajudyog Pvt. Ltd., 2001 (60) DRJ 725. She contended that the plaintiff has proved relevant invoices, tax invoices, ledger, delivery challans and GST Returns. She contended that the plaintiff is entitled to a decree for recovery of the suit amount.
CONTENTIONS OF THE DEFENDANTS:
29. Ld. Counsel for the defendants contended that the suit is not maintainable on the ground of misjoinder of the parties. He contended that the defendant No. 4 is a sole proprietor of 'M/s. Laxmi Opticals' whereas the defendant No. 1 is a Limited Liability Partnership (LLP) Firm. He contended that the defendant No. 2 and 3 are partners of the defendant No. 1. He contended that the defendant No. 1 and 4 are two distinct legal entities having separate businesses. He contended that the defendant No. 1 and 4 have no relation with each other. He contended that the plaintiff combined the amount due against the defendant No. 1 and 4 in this suit. He contended that there is misjoinder of causes of action as the plaintiff has separate right to sue for recovery of the amount due to it from the defendant No. 1 and 4. He contended that this is a single suit against two different entities.
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30. Ld. Counsel for the defendants contended that in the similar manner, the defendant No. 2 is also a proprietor of 'M/s. Laxmi Eye Care'. However, the plaintiff included the amount due against 'M/s. Laxmi Eye Care' with the defendant No. 1. He contended that amount due against separate legal entities cannot be clubbed in a one suit. He contended that the defendant No. 1, 'M/s. Laxmi Eye Care' and the defendant No. 4 are separate and distinct entities having separate proprietorship / management and they cannot be arrayed together in a single suit. He contended that only common link between the defendants is that they purchased goods from the plaintiff and all of them are dealing with the same goods. He contended that PW-1 Sandeep Bhandari, in his cross-examination conducted on 22.11.2023, categorically admitted that he has not placed any communication that money due against 'M/s. Laxmi Opticals' will be paid by 'M/s. Laxmi Eye Care' or 'M/s. Laxmi Eye Care LLP'. He contended that there is no evidence that the defendant No. 1 would be liable to discharge the liability of the defendant No. 4. He contended that the plaintiff made material improvement, in his cross-examination conducted on 02.02.2024, that the defendant No. 2 to 4 had approached him for merger of ledgers of 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP' and 'M/s. Laxmi Opticals'. He contended that there is no such averment in para No. 12, 14 and 15 of the plaint, as referred by PW-1 Sandeep Bhandari. He contended that PW-1 Sandeep Bhandari has failed to establish authenticity of certificate under Section 65B of 'The Indian Evidence Act, 1872'. He contended that the invoices are neither bearing signatures of the defendants or their authorized representatives nor seal of the defendants. He contended that PW-1 Sandeep Bhandari is not author of invoices CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 12 of 39
31. Ld. Counsel for the defendants relied upon judgment of Hon'ble High Court of Madhya Pradesh in Jethanand and Company vs. Mohan and Company, 2008 (3) CCC 140. He relied upon judgment in Chandradhar Goswami and Ors. vs. Gauhati Bank Ltd., AIR 1967 SC 1058. He contended that the plaintiff has failed to prove that the goods were delivered to the defendants. He contended that the plaintiff has failed to prove that the price of the goods mentioned in the invoices were mutually agreed and acknowledged by the defendants. He contended that PW-1 Sandeep Bhandari admitted that he has not signed the delivery challans. He contended that PW-1 Sandeep Bhandari admitted that books of accounts / ledger was compiled by an accountant and verified by a chartered accountant. He contended that PW-1 Sandeep Bhandari was not the author of the ledger relied by him. He contended that neither accountant nor chartered accountant verified or signed the said documents. He contended that the said documents are neither bearing stamp of the plaintiff nor designation of PW-1 Sandeep Bhandari. He contended that the invoices relied by the plaintiff are not reliable. He contended that the plaintiff filed certain invoices pertaining to some other entity. He contended that PW-1 Sandeep Bhandari neither generated tax invoices or delivery challans nor signed them. He contended that the plaintiff has not examined its lawyer who downloaded GST Returns Ex.PW1/D2 (colly.). He relied upon judgments in M/s. Utility Powertech Limited vs. M/s. Amit Traders, AIR OnLine 2018 Del 926 and S.P. Brothers, A Partnership Firm vs. Biren Ramesh Kadakia, AIR 2009 (NOC) 335 (Bom). He also relied upon judgment in Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera and Another, (1999) 3 SCC 457.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 13 of 39 ANALYSIS AND DISCUSSION:
32. First and foremost contention of Ld. Counsel for the defendants is that the plaint is not signed and verified and the suit is not instituted by a competent person.
33. In that regard, it would be relevant to take note of the fact that the defendants have not raised this contention in written arguments.
34. The plaintiff is a private limited company, vide Company Master Data Ex.PW1/1. PW-1 Sandeep Bhandari is one of the directors of the plaintiff. He signed and verified the plaint and instituted the suit.
35. In his examination-in-chief Ex.PW1/A, he deposed, as under:
"3. I say that the present suit has been signed, verified by me and the present suit has been instituted by the Plaintiff Company. I am duly authorized by the Plaintiff Company to represent it before the Hon'ble Court in the present matter vide its Board Resolution dated 29.09.2020. The Board Resolution dated 29.09.2020 filed at page 87 of the list of documents along with plaint is exhibited as Ex.PW1/2."
36. The challenge to his authority to institute the suit is founded on the contention that all directors were not present at the time of Board Resolution dated 29.09.2020 Ex.PW1/2 and the said resolution is not signed by other directors except Mr. Rahul Bhandari and further, Chartered Accountant (CA), who prepared the said board resolution, is not examined.
37. In that regard, Ld. Counsel for the defendants referred cross-examination of PW-1 Sandeep Bhandari, as under:
".....There are three directors at the plaintiff firm at this moment, earlier there were four directors.....The document Ex.PW1/2 is signed by my brother.....I and my brother were present at the time of signature on the board resolution.....Board resolution was prepared by CA of the company. CA was present at the time of signature on board resolution.....
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 14 of 39 It is correct that board resolution does not bear signature of CA. It is correct that board resolution does not bear signature of any other directors except Mr. Rahul Bhandari. The meeting of board of directors had taken place in my office having address 267/1, Kandle Kashan Street, Fatehpuri, Delhi. I do not know whether the intimation of the said board resolution was ever given to Ministry of Corporate Affairs but my CA can tell the same. I can produce the original board resolution. It is incorrect to suggest that I have made a fake board resolution....."
38. Order 29 Rule 1 of 'The Code of Civil Procedure, 1908' is, as under:
"SUITS BY OR AGAINST CORPORATIONS
1. Subscription and verification of pleading In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case."
39. Therefore, PW-1 Sandeep Bhandari is competent to sign and verify the plaint and institute the suit being a director of the plaintiff notwithstanding absence of one of the directors, namely, Mr. Amrit Lal Bhandari in the meeting of Board of Directors at the time of passing resolution Ex.PW1/2.
40. In United Bank of India vs. Naresh Kumar and Others, (1996) 6 SCC 660, Hon'ble Supreme Court of India held, as under:
"10.....As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation....."
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41. The second contention is that the suit is barred by limitation. However, Ld. Counsel for the defendants neither stated in written arguments nor demonstrated during the course of arguments as to how the suit is barred by limitation.
42. The case of the plaintiff is not based on an individual / specific invoice. The case of the plaintiff is based on running accounts Ex.PW1/838 and Ex.PW1/907 qua the defendant No.
1.
43. According to ledger Ex.PW1/838, an amount of Rs. 19,48,263.60/- was due against 'M/s. Laxmi Eye Care LLP' (Green Park).
44. According to ledger Ex.PW1/907, an amount of Rs. 18,831/- was due against 'M/s. Laxmi Eye Care LLP' (Shipra Mall).
45. As such, an amount of Rs. 19,67,094/- was due against the defendants, as on 13.01.2021.
46. It is relevant to note that the defendant No. 1 made last payment of Rs. 76,100/- on 13.01.2021.
47. In cases pertaining to recovery of outstanding amount on the basis of running and non-mutual account, the limitation for filing of the suit is governed by Article 113 of 'The Indian Limitation Act, 1963', as under:
PART X - SUIT FOR WHICH THERE IS NO PRESCRIBED PERIOD Description of application Period of limitation Time from which period begins to run Any suit for which no period Three years When the right to sue of limitation is provided accrues elsewhere in this Schedule CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 16 of 39
48. In Bharath Skins Corporation vs. Taneja Skins Company Private Limited (supra), Hon'ble High Court of Delhi held, as under:
"24. There being no Article in the Schedule to the Limitation Act, 1963 dealing with suits for recovery of money due on running and current but non-mutual accounts, in such circumstances, the residual article viz. Article 113 applies to such suits.
25. Under Article 113, the period for limitation for filing a suit is three years and the same begins to run when the right to sue would accrue when claim was denied in response to the legal notice dated 26.06.1985 on 13.07.1985 but since Rs. 7,000/- was paid on 13.07.1985 and 24.07.1985 (Rs. 2,000/- on the former date and Rs. 5,000/- on the latter date), limitation would commence from 24.07.1985. The suit being filed on 02.09.1985, governed for purposes of limitation by Article 113 the suit would be within limitation."
49. In Ashok Parshad vs. M/s. Mahalakshmi Sugar Mills Co. Ltd. (supra), Hon'ble High Court of Delhi held, as under:
"19. Section 19 of the Limitation Act, 1963 specifically provides that once the payment is made towards the part of the total debt due, a fresh period of limitation starts on such payment. This extension of limitation arises from the factum of the payment towards the debt due and not how the creditor appropriates the same. It is under this provision that the period of limitation gets extended when the demand is made towards a debt and as seen above, the creditor is within its rights to appropriate the payments as towards the entire outstanding, unless there was an expressed agreement or intention of the debtor to adjust such payments towards specific debt."
50. The suit instituted on 04.01.2022 is within limitation.
51. The third contention of the defendants is that the suit is not maintainable on account of misjoinder of parties and causes of action. Ld. Counsel for the defendants contended that there is no document pertaining to consent of the defendant No. 2 to 4 to transfer the amount due against 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' to ledger of 'M/s. Laxmi Eye Care LLP'.
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52. The said contention is premised on the ground that 'M/s. Laxmi Opticals', 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP' are different entities. Ld. Counsel for the defendants contended that 'M/s. Laxmi Opticals' is proprietorship concern of the defendant No. 4 and 'M/s. Laxmi Eye Care' is proprietorship concern of the defendant No. 2, and 'M/s. Laxmi Eye Care LLP' is a partnership firm of the defendant No. 2 and
3. He contended that the plaintiff clubbed the amount due against 'M/s. Laxmi Opticals' in order to overcome the hurdle of limitation. He contented that 'M/s. Laxmi Opticals', 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP' are different firms having different GSTs and proprietors / partners. He contended that the plaintiff unauthorizedly transferred amount due against 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' to ledger of 'M/s. Laxmi Eye Care LLP'.
53. To counter, Ld. Counsel for the plaintiff contended that the plaintiff had initial dealing with the defendant No. 4 and thereafter, the plaintiff had parallel dealing with the defendant No. 4 and the defendant No. 2, proprietor of 'M/s. Laxmi Eye Care'. She contended that the defendant No. 2 is daughter of the defendant No. 4 and the defendant No. 3 is son-in-law of the defendant No. 4. She contended that the plaintiff transferred the amount due against 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' at the instance of the defendant No. 2 to 4. She contended that there is no legal bar to transfer an amount from one ledger to another ledger. She contended that the defendants never objected to transfer of the amount to ledger of the defendant No. 1. She contended that the plaintiff made requisite averments in para No. 12, 14 and 15 of the plaint. She contended that PW-1 Sandeep Bhandari also stated to this effect, in his cross-examination.
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54. Finally, Ld. Counsel for the plaintiff contended that any objection to misjoinder of parties / causes of action should be taken at the first instance, as provided under Order 2 Rule 7 CPC. She contended that in the absence of written statement, the defendants cannot be permitted to raise such contention at final stage of the case.
55. To begin with, it would be relevant to take note of relevant paras of the plaint, as under:
"12. That meanwhile on 01.06.2017, the Defendant Nos. 2 & 3 incorporated the Defendant No. 1 firm and the Defendant Nos. 2, 3 and 4 approached the Plaintiff in the month of December 2017 for continuation of the business and for the purchase of goods and materials by the Defendant No. 1 firm parallelly. The Plaintiff created a separate Ledger account in the name of Laxmi Eye Care LLP and started entering all the transactions between the Plaintiff and the Defendant No. 1 in the said Ledger Account. It is pertinent to mention herein that Defendant No. 1 and Laxmi Opticals had been parallelly purchasing the goods from the Plaintiff from the month of December 2017 to July 2018. The said period was the transition period of business between the Laxmi Eye Care, Laxmi Opticals and the Defendant No. 1 firm.
14. That the Defendant No. 4 approached the Plaintiff in the month of March 2018 informing that Defendant No. 4 was closing the business in the name of Laxmi Opticals and is transferring the stock and balances of the Defendant No. 4 to Defendant No. 1 firm with the consent of the registered partners i.e. Defendant No. 2 and Defendant No. 3 as they were taking over the business in the name of Defendant No. 1 firm. The Defendant No. 4 also requested the Plaintiff to transfer the outstanding balance of the ledger account of Laxmi Opticals to the books of account of Defendant No. 1 firm on 31.03.2019.
15. That on 01.04.2018, Defendant No. 2 also approached the Plaintiff and requested the Plaintiff that the outstanding balance of Rs. 28,005/- (Rupees Twenty Eight Thousand Five only) due and payable by Laxmi Eye Care be transferred in the name of Defendant No. 1 firm as the Defendant No. 1 firm would be paying the said outstanding amount.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 19 of 39 The Plaintiff acceded to the request made by the Defendants as the Plaintiff was having no other option and accordingly a Journal entry was entered in the ledger account of Laxmi Eye Care LLP on 01.04.2018, transferring the balance of Laxmi Eye Care to the said account."
56. From examination of the averments made in para No. 12, 14 and 15 of the plaint, it is evident that para No. 12 of the plaint merely state that the defendant No. 2 to 4 approached the plaintiff in the month of December, 2017 for purchase of the goods by the defendant No. 1 parallelly. It does not state that the defendant No. 2 and 3 had authorized the plaintiff to transfer the outstanding amount qua 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' to ledger of the defendant No. 1.
57. The averments made in para No. 14 of the plaint state that the defendant No. 4 had approached the plaintiff in month of March, 2018 that he was closing the business and would transfer the stock / balances to the defendant No. 1 with the consent of the defendant No. 2 and 3. Here again, there is no averment that the defendant No. 2 and 3 accompanied him and consented for transfer of amount due against the defendant No. 4 to the account of the defendant No. 1 on 01.04.2019.
58. From the averments made in para No. 15 of the plaint, it is apparent that the defendant No. 2 had requested the plaintiff to transfer the amount outstanding against 'M/s. Laxmi Eye Care' to account of the defendant No. 1. It does not state that the defendant No. 3 also accompanied her and consented to transfer the amount due against 'M/s. Laxmi Eye Care' to the account of the defendant No. 1 on 01.04.2018.
59. This Court is of the opinion that there is no foundation for the contention of the plaintiff that there are requisite averments made in the plaint regarding clubbing of ledgers.
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60. At this juncture, it would be relevant to take note of cross- examination of PW-1 Sandeep Bhandari, on this aspect, as under:
".....It is correct that different GST numbers of the defendant are mentioned in the invoices. Vol. The defendant company has two other companies i.e. 'Laxmi Eye Care' and 'Laxmi Eye Care LLP'. 'Laxmi Opticals' is another company which is run by the father of the defendant No. 2. I have not placed on record any communication to ascertain / confirmation that money due by Laxmi Opticals will be paid by Laxmi Eye Care or Laxmi Eye Care LLP. Vol. It was a verbal communication. After this verbal communication, the bills were raised and money was also paid by the defendants and the statement of accounts were given to them. I may have confirmation of statement of account sent by Laxmi Eye Care or Laxmi Eye Care LLP via e-mail. The witness stated that he meant to say that I sent statement of account to them via e-mail and I did not receive any objection from them in that regard. I have not filed such e-mail on record. It is wrong to suggest that there is no such e-mail sent by me and for that reason, I have not filed it. It is correct that statement of accounts Ex.PW1/3 and Ex.PW1/4 is the name in the ledger mentioned as Laxmi Opticals (Vasant Vihar) AD. It is correct that statement of accounts Ex.PW1/5 is the name in the ledger mentioned as Laxmi Eye Care KB. It is correct that Laxmi Opticals and Laxmi Eye Care are separate firms. However, 'AD' and 'KB' are indicating the area of their office. It is correct that Laxmi Eye Care LLP is the third different firm....."
(emphasis added)
61. Relevant part of cross-examination of PW-1 Sandeep Bhandari, conducted on 02.02.2024, is as under:
"Question: On 01.04.2018, who had approached you for merger of ledgers of 'Laxmi Eye Care' and 'Laxmi Eye Care LLP'?
Answer: Ms. Drishti Pahwa along with her husband (defendant No. 3) and Mr. Sandeep Pahwa approached me for the merger of ledgers of 'Laxmi Eye Care' and 'Laxmi Eye Care LLP'.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 21 of 39 Question: When and who had approached you for the merger of ledger account of 'Laxmi Opticals' and 'Laxmi Eye Care LLP'?
Answer: Ms. Drishti Pahwa along with her husband and Mr. Sandeep Pahwa. I do not remember the date when I had visited their office at Green Park in that regard.
Question: Have you mentioned in your plaint that all the defendants approached you to merge the ledgers of 'Laxmi Eye Care' and 'Laxmi Eye Care LLP'? Answer: At this stage, the Court asked the witness to peruse the plaint and answer the question. After perusing the plaint, the witness stated that I have mentioned this in Para No. 12, 14 and 15 of the plaint.
Question: Have you mentioned in your plaint that all the defendants approached you to merge the ledgers of 'Laxmi Opticals' and 'Laxmi Eye Care LLP'? Answer: At this stage, the Court asked the witness to peruse the plaint and answer the question. After perusing the plaint, the witness stated that I have mentioned this in Para No. 12, 14 and 15 of the plaint.
Question: Is it correct that no defendant had approached and requested you at any point of time regarding merger of the statement of account / ledger accounts of three separate independent entities i.e. 'Laxmi Eye Care', 'Laxmi Opticals' and 'Laxmi Eye Care LLP' that's why you have not filed any documents pertaining to the merger?
Answer: It is incorrect.
Question: Is it correct that these three are separate independent entities i.e. 'Laxmi Eye Care', 'Laxmi Opticals' and 'Laxmi Eye Care LLP' and their ledger account cannot be merged without written permission of MCA?
Answer: On the verbal request and meetings with the defendants, the transactions with 'Laxmi Eye Care' and 'Laxmi Opticals' were transferred to account of 'Laxmi Eye Care LLP' and thereafter, they were purchasing the goods and making the payments through 'Laxmi Eye Care LLP'. It is correct that they are separate entities."
62. On analysis of cross-examination of PW-1 Sandeep Bhandari, it is evident that he admitted that 'M/s. Laxmi Opticals', 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP' are separate firms having separate GST numbers. CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 22 of 39
63. PW-1 Sandeep Bhandari also admitted that he has not placed any communication that the money due against 'M/s. Laxmi Opticals' will be paid by 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP'.
64. However, PW-1 Sandeep Bhandari deposed that on verbal instructions of the defendant No. 2 to 4, he transferred ledger qua 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Opticals' to ledger of 'M/s. Laxmi Eye Care LLP' and thereafter, the defendant No. 1 continued purchasing the goods and made payments.
65. The issue before the Court is whether the defendants had given verbal instructions to the plaintiff to transfer amount due against 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' to ledger of the defendant No. 1 and whether the circumstances of the case would prove that the defendants authorized the plaintiff to transfer amount due from 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' to ledger of the defendant No. 1.
66. Initially, the plaintiff had business dealing with the defendant No. 4 since 2016. The defendant No. 4 is father of the defendant No. 2. The defendant No. 2 had parallel dealing with the plaintiff since 01.04.2017. The defendant No. 2 as proprietor of 'M/s. Laxmi Eye Care' and the defendant No. 4 as proprietor of 'M/s. Laxmi Opticals' were dealing in optical goods. The defendant No. 3 is son-in-law of the defendant No. 4. The defendant No. 2 and 3 formed a Limited Liability Partnership on 01.06.2017. The defendant No. 1 also started dealing with the plaintiff and purchased optical goods since December, 2017 onwards. Therefore, the defendant No. 2 to 4 are closely related members of a family and they were dealing in same goods under the name of different proprietorship concern / partnership firm. There is an identity of interest and unity of transactions.
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67. From the evidence on record, it emerges that the defendant No. 2 to 4 are dealing in optical goods as a single enterprise under the name of different proprietorship concern / partnership firm.
68. This fact is proved from the corpus of the transactions with the plaintiff. In FY 2016-17, the defendant No. 4 purchased goods worth Rs. 12,61,402/- and made payment of Rs. 11,50,070/- to the plaintiff. However, in FY 2017-18, the defendant No. 4 made meager purchase of the goods worth Rs. 1,16,747/- and made payment of Rs. 2,89,103/-. It is relevant to mention that in FY 2017-18, 'M/s. Laxmi Eye Care', a proprietorship concern of the defendant No. 2 made substantial purchase of the goods worth Rs. 9,85,724/- and made payment of Rs. 9,28,780/-. In the same FY 2017-18, the defendant No. 1 made purchase of the goods worth Rs. 14,19,958/- from the plaintiff. It shows that 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP' had taken over the business of the defendant No. 4 in 2017-18. In FY 2017-18, the defendant No. 4 purchased goods worth Rs. 1,16,747/- whereas 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Eye Care LLP' purchased goods worth Rs. 24,05,682/-.
69. The nature of transactions in FY 2017-18 and 2018-19 would show that the defendant No. 4 and 'M/s. Laxmi Eye Care' had virtually transferred their entire business to the defendant No. 1. In FY 2018-19, the defendant No. 4 made meager purchase of the goods worth Rs. 10,758/- and the the defendant No. 1 made purchase of the goods worth Rs. 31,98,145/- and made payment of Rs. 28,83,746/- to the plaintiff. It is relevant to note that 'M/s. Laxmi Eye Care' did no transaction with the plaintiff in FY 2018-19.
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70. The nature of transactions would show that in fact, the defendant No. 2 to 4 were doing the business in the optical goods and the names of their proprietorship concern / partnership firm are mere trade names.
71. In FY 2019-20, the defendant No. 2 and 'M/s. Laxmi Eye Care' stopped their business and the defendant No. 1 purchased goods worth Rs. 11,65,411/- and made payment of Rs. 13,44,808/- to the plaintiff.
72. The defendants have not produced their ledger accounts and / or stock registers or income tax returns to prove that amount due against 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Opticals' were not transferred to ledger of the defendant No. 1 and 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Opticals' have not transferred their stocks to the defendant No. 1.
73. The defendants did not reply demand notice dated 07.10.2020 Ex.PW1/909 wherein the plaintiff made averments pertaining to transfer of amount due from 'M/s. Laxmi Eye Care' and 'M/s. Laxmi Opticals' to ledger of the defendant No. 1, as under:
"3. That you the addressee no. 4 in the month of March 2018 had approached our client stating that you are closing the business in the name of Laxmi Opticals and transferring the stock and balances of the addressee no. 4 to the addressee no. 1 with the consent of the registered partners i.e. addressee no. 2 & 3, as your daughter i.e. addressee no. 2 and your son-in-law i.e. addressee no. 3, is taking over your business in the name of addressee no. 1. You also requested our client to transfer the aforesaid outstanding balance in the account of addressee no. 1 in the books of accounts on 31.03.2019. Our client, upon the request and consent by you the addressees had transferred the aforesaid outstanding balance to the account of the addressee no. 1, in the books of accounts on 01.04.2019.
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5. That, now as on 07.10.2020, as per the books of accounts of our client, there is an outstanding balance of Rs. 20,77,132.60p (Rupees Twenty Lakhs Seventy Seven Thousand One Hundred Thirty Two and paise sixty only), which is due and payable by you the addressees after receiving all the part payments till date."
74. It is further relevant to note that demand notice dated 07.10.2020 Ex.PW1/909 was served upon the defendant No. 1 to 3 on 09.10.2020 and the defendant No. 4 on 10.10.2020. However, the defendant No. 1 purchased the goods from the plaintiff on 12.10.2020 and the plaintiff issued a credit note worth Rs. 1544/- on 13.12.2020. The defendant No. 1 made payment of Rs. 20,000/- on 09.10.2020 and further payment of Rs. 10,000/- and Rs. 76,100/- on 21.10.2020 and 13.01.2021 respectively. It shows that the defendant No. 1 purchased goods from the plaintiff and made payments even after receiving demand notice dated 07.10.2020 Ex.PW1/909.
75. In civil cases, the plaintiff has to prove its case on the scale of 'preponderance of probabilities'.
76. In view of the nature of evidence, as stated above, this Court is of the opinion that the plaintiff brought on record sufficient evidence to discharge the burden of proof placed upon it to prove that the plaintiff transferred the amount due against 'M/s. Laxmi Opticals' and 'M/s. Laxmi Eye Care' to ledger of the defendant No. 1 with the consent of the defendant No. 2 to 4.
77. Therefore, there is no misjoinder of parties or misjoinder of causes of action.
78. Final contention of the defendants is that the plaintiff failed to prove delivery of the goods to the defendants. Ld. Counsel for the defendants contended that PW-1 Sandeep Bhandari failed to prove invoices and ledger accounts. He contended that there is no proof of delivery of the goods.
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79. Ld. Counsel for the defendants contended that the delivery challans are not corresponding with the invoices. He contended that the plaintiff has not examined the witnesses concerned with invoices, delivery challans, GST Returns and ledger. In that regard, Ld. Counsel for the defendants referred cross- examination of PW-1 Sandeep Bhandari, as under:
".....The invoice Ex.PW1/6 bears my signature at point A. It is correct that the invoice Ex.PW1/6 does not bear signatures / acknowledgment of any of the defendants or their authorized representative. Vol. It is a computer generated copy. There is no manual invoice of Ex.PW1/6. It is correct that Ex.PW1/6 does not bear supplier reference, order number, order date and terms of delivery. Vol. The goods are supplied on the same date of receipt of orders through telephone. It is correct that invoice Ex.PW1/6 does not bear seal of the defendant. It is correct that it does not bear the particulars of the person who prepared, verified and sealed it on behalf of ' Sandeep Optical Company Pvt. Ltd.'. I have not filed any board resolution authorizing me to sign invoices of the plaintiff company. Vol. I am a director of the plaintiff and looking after its day to day business and affairs. I have one accountant in my office. He does not prepare any invoices. I generate invoices usually, however, sometimes my staff also generate invoices. Staff changes from time to time. The goods against the invoice Ex.PW1/6 were delivered to the defendant by delivery boy. I do not know the name of the delivery boy. I have around 10 delivery boys and staff changes from time to time.
Question: Whether you have filed any document to show that the goods against invoice Ex.PW1/6 were delivered to the defendant?
Answer: The defendant has taken input taxes against the invoices from GST Department.
I have not filed any document that the defendant taken input taxes against the invoices from GST Department. It is wrong to suggest that I did not deliver any goods against invoice Ex.PW1/6. The invoice Ex.PW1/6 is raised on 'Laxmi Eye Care'. It is wrong to suggest that no such firm 'Laxmi Eye Care' existed in 2017. It is correct that invoice Ex.PW1/6 was raised upon address A-6, 1st Floor, Dilshad Market, Desh Bandhu Gupta Road, Karol Bagh, New Delhi-110005.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 27 of 39 It is correct that in memo of parties, I have mentioned 'Laxmi Eye Care (LLP)' having its office at G-52, Green Park, New Delhi-110016. Vol. It is the present address of 'Laxmi Eye Care (LLP)'. I have not mentioned in my affidavit that previous address of 'Laxmi Eye Care (LLP)' was in Karol Bagh and present address is in Green Park....."
80. Ld. Counsel for the defendants referred cross-examination of PW-1 Sandeep Bhandari, conducted on 22.11.2023, as under:
"In 2017, our accounts were duly audited by our Chartered Accountant. The name of our Chartered Accountant was M/s S. C. Gupta & Company. He is our CA till date. Books of accounts is maintained by our accountant in the office and not by the CA, however, the same are audited by our CA. The books of accounts and ledgers produced by me in the Court in this case are prepared by my accountant and the same are also verified by my CA. The witness is confronted with page No. 149, 180, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/266, Ex.PW1/450, Ex.PW1/458, Ex.PW1/459, Ex.PW1/460, Ex.PW1/828, Ex.PW1/838 and Ex.PW1/909. It is correct that the abovesaid documents are neither verified nor signed by my accountant and CA. Vol. I have verified the said documents as Managing Director of the company. It is correct that the said documents are neither bearing stamp of the company nor my designation.....It is correct that Ex.PW1/6 to Ex.PW1/62 does not bear GST number of any of the defendants. Vol. They are computer generated invoices and may be at the time of generating the invoices the GST No. implementation would be off, but all the invoices have been filed by the GST Department....."
81. Ld. Counsel for the defendants referred cross-examination of PW-1 Sandeep Bhandari, conducted on 24.11.2023, as under:
"It is correct that the plaintiff maintain stocks register in our company. It is correct that the plaintiff do not raise invoices of the items which are not in our stock. My accountant maintains stock register. Ex.PW1/45 bears my signature. It is correct that Ex.PW1/45 bears the declaration of 'No Stock' at point A. Ex.PW1/46, Ex.PW1/47 and Ex.PW1/48 bears my signatures. It is correct that Ex.PW1/46, Ex. PW1/47 and Ex.PW1/48 bears the declaration of 'No Stock' at point A. Ld. Counsel for the plaintiff objects that the complete sentence be read.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 28 of 39 Vol. The declaration remarks states that the order number stock. I do not know the order number of the invoice. Again said, I do not remember. I have not placed on record any order book or the details of the order of the invoices of the entire exhibits relied upon me. Vol. In some invoices order number is mentioned in the narration. It is wrong to suggest that I have not placed on record the order book or details of order as I have forged and fabricated the invoices. I have not placed on record any receipt or acknowledgment of the invoices delivered to any of the defendants. Vol. I have brought the delivery receipts delivered by our delivery boys and invoices uploaded on GST e-portal. I cannot tell who delivered the goods of exhibits of the invoices I have relied upon in the present matter. Vol. I can check and tell. It is wrong to suggest that I have not placed on record such acknowledgment or receipts of such invoices as I have forged and fabricated them.
At this stage, the witness has filed original delivery receipts exhibited as Ex.PW1/D1 (Colly.) and GST record downloaded from GST portal as Ex.PW1/D2 (Colly.) and a copy thereof be supplied to Ld. Counsel for the defendant....."
82. Ld. Counsel for the defendants referred cross-examination of PW-1 Sandeep Bhandari, conducted on 10.01.2024, as under:
"It is correct that tax invoice at page No. 512 of the tax invoices / delivery challans filed by me is addressed and issued to Eye Club. It is correct that this delivery challan is wrongly filed before the Court and it has nothing to do with the defendant. It is incorrect to suggest that I have forged and fabricated this delivery challans / tax invoices to legitimate my claim before this Court.
Question: Have you filed the computer generated invoices dated 01.05.2018, 03.05.2018, 5.05.2018, 07.05.2018, 08.05.2018, 10.05.2018, 12.05.2018, 14.05.2018, 15.05.2018, 16.05.2018, 18.05.2018, 19.05.2018, 21.05.2018, 22.05.2018, 24.05.2018, 26.05.2018, 30.05.2018, 31.05.2018, 04.06.2018, 06.06.2018, 07.06.2018, 08.06.2018, 09.06.2018, 11.06.2018, 13.06.2018, 16.06.2018, 19.06.2018 and 20.06.2018 with respect to the delivery challan / tax invoices before the Court?
Answer: I have to check. I have not filed the said computer generated invoices with respect to the delivery challan / tax invoice.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 29 of 39 .....It is correct that there is no invoice placed on record with respect to the tax invoice / delivery challan dated 21.06.2018 as mentioned in page No. 62 of tax invoice / delivery challan. Vol. Mistakenly invoice of Laxmi Opticals (Vasant Vihar) has been filed. It is correct that the computer generated invoice Ex.PW1/453 and the delivery challan dated 21.06.2018 bears same date are completely different. Vol. Invoices number are different. It is incorrect to suggest that invoices number are different because I have forged and fabricated the invoices to legitimate my claim. The tax invoice / delivery challan at page No. 92 is prepared by my accountant.
Question: Who has delivered the goods as mentioned at page No. 892 filed by the plaintiff?
Answer: I cannot tell the name of the delivery boy as there are number of delivery boys.
Question: I put it to you that Ex.PW1/886 and page No. 892 of the tax invoice / delivery challan filed by you are two different documents. What do you have to say?
Answer: Both are the same invoices. One is with the receiving of the buyer and the other one is computer generated copy.
It is correct that Ex.PW1/886 did mention that this tax invoice was issued in duplicate for transporter. It is also correct that page No. 892 of tax invoice / delivery challan filed by me bears triplicate for supplier. I do not know who has signed the tax invoice / delivery challan at page No. 892 filed by me. Vol. The person who have received may have signed it. It is incorrect to suggest that I have forged the document of the delivery challan filed by me. Question: Can you tell out of which delivery challan / tax invoices filed by you from page No. 1 to 911 have been personally delivered by you? Answer: I do not remember which goods I have delivered personally because usually the delivery boy delivered the goods.
I cannot tell that whether there are signatures of any of the defendant on tax invoices / delivery challans filed by me. It is incorrect to suggest that these delivery challans were never acknowledged or signed by any of the defendants. Vol. The staff usually received and signed.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 30 of 39 Question: Can you tell out of these 911 tax invoices / delivery challans which have been signed by which employee?
Answer: One of the invoices were signed by Deepak and one by Irfan at page No. 25 and one by Ritesh at page No. 10, 14, 23, 24, 30, 35. I cannot say it is Satinder but it is written as Satinder who had signed at page No. 17. I do not who has signed the other delivery challans / tax invoices.
It is correct that the delivery challans / tax invoices at page No. 514, 592 does not bear any stamp. I have personally not met Deepak, Irfan, Ritesh and Satinder."
83. Ld. Counsel for the defendants referred cross-examination of PW-1 Sandeep Bhandari, conducted on 12.01.2024, as under:
"It is correct that all the delivery challans / invoices from page No. 1 to 911 have not been signed by me. Vol. Invoices are being signed by staff member who works on the computer. It is incorrect to suggest that Ex.PW1/D2 (Colly.) have been filed only since 26.07.2017 as invoices prior to the date are false and fabricated and no GST record has been filed prior to the date 26.07.2017. It is correct that Laxmi Opticians and Laxmi Opticals are two different firms. Vol. Having the same owner namely Sandeep Pahwa. It is incorrect to suggest that I have intentionally filed GST record of Laxmi Opticians in the present suit with the intention to illegally validate my claim under the present suit. Ex.PW1/D2 (Colly.) were printed by me, however, the data was provided to me by my lawyer. Again said my GST lawyer. It is correct that the credentials to login GST portal is with me. Vol. We give access to GST lawyers to access the same. It is correct that Ex.PW1/D2 (Colly.) do not bear the sign or stamp of the concerned GST department. Vol. It has been earlier mentioned that these documents were access online from GST portal.....It is correct that when we login to the GST portal, record reflects the data pertaining only to our transactions submitted on GST portal. It is correct that Ex.PW1/D2 (Colly.) reflect our sale data / transactions and it does not validate whether the defendant has accepted it or not. Vol. All the invoices are already on record. Question: From which date you start transaction with Laxmi Eye Care LLP?
Answer: I do not remember. I have to check. At this stage, the witness is confronted with the Court file wherein he confirmed from the ledger the date is 02.12.2017....."
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84. Ld. Counsel for the defendants referred cross-examination of PW-1 Sandeep Bhandari, conducted on 19.01.2024, as under:
"At this stage, witness is confronted with the delivery challan i.e. Ex.PW1/D1 (Colly.).
Question: Is it correct that on page No. 318, 320, 440, 447, 454, 455, 456, 460, 464, 479, 483, 500, 519, 550, 591, 592, 669, 798, 812, 827, 856, 895 does not bear the stamp of the defendant?
Answer: It is correct.
Question: Can you show the stamp of the Laxmi Eye Care LLP in Ex.PW1/D1 (Colly.)?
Answer: He has shown the stamp of Laxmi Eye Care LLP on page No. 21, 34, 38, 60.
Question: Can you show on how many invoices of Laxmi Eye Care LLP bear its stamp?
Answer: Mostly all the invoices bear the same stamp. Some of them bear stamp of Laxmi Eye Care and some of them bear stamp of Laxmi Eye Care LLP. Question: Is it correct that there is no uniformity with regard to the stamp of the invoices? Answer: Yes. Vol. I think they have deliberately done this.
It is wrong to suggest that there is no uniformity with regard to the stamp of invoices as alleged invoices are forged and fabricated documents.
At this stage, witness is confronted with the delivery challan i.e. Ex.PW1/D1 at page No. 682. Question: Is it correct that 'Shyam Trading Co.' is not a party in this present suit?
Answer: It is correct.
It is wrong to suggest that I have not filed false and fabricated page No. 682 of Ex.PW1/D1. Vol. It is a clerical mistake by my staff and the same invoice is not showing in ledger statement.
It is correct that I have not checked each and every invoice before filing the same before this Court. Again said, I have checked each and every documents but the above invoice was over looked."
(emphasis added)
85. Ld. Counsel for the plaintiff contended that the defendants have not filed written statement and their right to cross- examination is limited and they cannot introduce, directly or indirectly, their defence.
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86. Ld. Counsel for the plaintiff further contended that the plaintiff has filed relevant invoices duly supported by delivery challans and ledger accounts. She contended that the plaintiff has filed GST Returns. She contended that the defendants did not reply demand notice dated 07.10.2020 Ex.PW1/909. She contended that the defendants continued to purchase the goods and made payments even after service of demand notice dated 07.10.2020 Ex.PW1/909. She contended that the plaintiff has proved the case on the scale of 'preponderance of probabilities'.
87. In this suit, the right of the defendants to file their written statement was closed.
88. It is well-settled that in case where the defendant does not file written statement, the defendant can always cross-examine the witnesses examined by the plaintiff to prove the falsity of the plaintiff's case.
89. In Ranjit Singh and Anr. vs. State of Uttarakhand and Ors., Civil Appeal No. 2395-2396 and 2399-2403 /2023 decided on 12.09.2024, Hon'ble Supreme Court of India held, as under:
"5.....At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit is ordered to proceed ex parte against him, the limited defence available to the defendant is not foreclosed. A defendant can always cross- examine the witnesses examined by the plaintiff to prove the falsity of the plaintiff's case. A defendant can always urge, based on the plaint and the evidence of the plaintiff, that the suit was barred by a statute such as the law of limitation....."
90. As regards scope of cross-examination, Hon'ble Supreme Court of India in Modula India vs. Kamakshya Singh Deo (supra) held, as under:
"20. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards.
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 33 of 39 The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case.
21. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiff's witnesses by the defendant whose defence is struck off, procedural chaos may result unless great care is exercised and that it may be very difficult to keep the cross-examination within the limits of the principles discussed earlier. Under the guise of cross- examination and purported demolition of the plaintiff's case, the defendant may attempt to put forward please of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not an easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion."
91. In Shukla Malhotra & Ors. vs. Dee Pee Kagajudyog Pvt. Ltd. (supra), Hon'ble High Court of Delhi held, as under:
"3. However, legal position in respect of aforesaid proposition of law has been enunciated by the Supreme Court in Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619. It was held that where defence is struck off, the defendant would not be entitled to lead any evidence of his own nor his cross- examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.
4. As it is the basic principle of law that the plaintiff has to prove its case independently in spite of defence having been struck off, the court has to only look at the plaintiff's evidence and pleadings and allow defendant to cross-examine the witnesses of the CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 34 of 39 plaintiff to the aforesaid limited extent and not by way of allowing the defendant to put up its case either directly or indirectly.
10. Thus, where defence is struck off, in no circumstances, cross-examination can be permitted to travel beyond the legitimate scope of pointing out legal infirmities or patent illegalities the case of the plaintiff suffers from or falsity of case itself. Defendant cannot be allowed to convert the cross- examination into virtual presentation of the case.
11. If such a course is allowed, the order of striking out the defence is itself rendered infructuous, ineffective and meaningless. Sanctity of the order has to be maintained at all costs and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."
92. On holistic examination of the evidence of the plaintiff, it is evident that PW-1 Sandeep Bhandari proved invoices pertaining to sale of the goods to 'M/s. Laxmi Eye Care' in FY 2017-18 Ex.PW1/6 to Ex.PW1/265. He proved invoices pertaining to sale of the goods to 'M/s. Laxmi Eye Care LLP' (Green Park) in FY 2017-18 Ex.PW1/267 to Ex.PW1/449. He proved invoices pertaining to sale of the goods to the defendant No. 4 in FY 2018-19 Ex.PW1/451 to Ex.PW1/456. He proved invoices pertaining to the sale of the goods to 'M/s. Laxmi Eye Care LLP' in FY 2019-20 Ex.PW1/461 to Ex.PW1/827 and in FY 2020-21 Ex.PW1/839 to Ex.PW1/906. He proved invoices pertaining to the sale of the goods to 'M/s. Laxmi Eye Care LLP' (Shipra Mall) in FY 2019-20 Ex.PW1/829 to Ex.PW1/837 and in FY 2020-21 Ex.PW1/908. PW-1 Sandeep Bhandari is looking after day to day affairs of the plaintiff and he generates invoices. Mere statement of PW-1 Sandeep Bhandari that sometimes his staff also generate invoices would not dilute the impact of his evidence. If any act is performed in any company under the supervision of any officer, the act is deemed to have been performed by such officer.
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93. As regards delivery challans placed at page No. 512 and 682 qua Eye Club and Shyam Trading Company, it can be stated that an isolated act of inadvertence in filing of any document would not make the evidence of the plaintiff doubtful. Given the volume of the invoices and delivery challans, such inadvertent filing of two delivery challans qua other entities would not dilute the credibility of the case of the plaintiff.
94. The defendants raised objections on the ground that there is no acknowledgement of the invoices by the defendants and the delivery challans are not signed by the defendants. However, it can be noted that majority of the delivery challans are bearing seal / stamp of the defendant No. 1. Majority of the delivery challans are bearing signatures of the recipients. The invoices are supported by GST Returns. As regards objection that PW-1 Sandeep Bhandari has not downloaded GST Returns and he is not competent to prove the said documents and furnish certificate under Section 65B of 'The Indian Evidence Act, 1872', it can be stated that it is not the case of the defendants that no such GST Returns are existing on GST portal.
95. The defendants made huge purchases from the plaintiff since 2016 to 2021 and made payment of substantial amounts, through banking mode. The defendants have not explained as to why they made payments if they had not received the goods. The defendants have not pointed out the invoices against which they did not receive the goods. It is relevant to note that the defendants have not explained the huge payments made by them to the plaintiff. The defendants have not filed their ledgers to counter the ledgers of the plaintiff. The defendants did not reply demand notice dated 07.10.2020 Ex.PW1/909 despite receiving the said demand notice on 09.10.2020 and 10.10.2020.
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96. As regards Ex.PW1/6, it can be stated that the said exhibit related to the transaction with 'M/s. Laxmi Eye Care' pertaining to supply of goods worth Rs. 36,811/- on 10.04.2017. It is relevant to note that in the said FY 2017-18, 'M/s. Laxmi Eye Care' made purchase of goods worth Rs. 9,85,724/- and made payment of Rs. 9,28,780/-, through banking mode. The defendants have not explained as to why they made such huge payments to the plaintiff in FY 2017-18 if they had not received any goods.
97. As regards non-examination of the accountant, who prepared the ledgers, it can be stated that a ledger is not a substantive evidence. It is a corroborating evidence. The ledgers filed by the plaintiff are duly supported by the invoices, delivery challans and GST Returns. Moreover, it is one thing to say that ledgers were prepared by accountant, it is another thing to say that PW-1 Sandeep Bhandari has no knowledge of the entries made in ledger. PW-1 Sandeep Bhandari categorically stated that he verified the ledgers as Managing Director of the company.
98. This Court is of the considered opinion that the plaintiff proved its case on the scale of 'preponderance of probabilities' and the plaintiff is entitled to a decree for recovery of principal amount of Rs. 19,67,094/-.
99. The plaintiff is claiming an amount of Rs. 4,43,647/- as interest @ 24% per annum w.e.f. 13.01.2021 to 21.12.2021. However, the said rate of interest is not mentioned in the invoices. There is no evidence that the defendants agreed to the said rate of interest. Moreover, the said rate of interest is on higher side. There is no evidence that the said rate of interest is usual market rate of interest. There is no evidence that the said rate of interest is paid by the banks.
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100. The claim for interest @ 24% per annum is penal in nature and highly exorbitant and oppressive. The nature of the transaction is commercial. The defendants wrongfully withheld the outstanding amount. Therefore, the plaintiff is entitled to just and reasonable interest on its legitimate dues wrongfully withheld and used by the defendants.
101. The defendants made last payment in the sum of Rs. 76,100/- on 13.01.2021. Therefore, the plaintiff will be entitled to interest w.e.f. 13.01.2021.
102. Accordingly, the plaintiff is awarded interest @ 7% per annum on the principal amount w.e.f. 13.01.2021 till realization.
RELIEF
103. The suit of the plaintiff is decreed with costs and a decree in the sum of Rs. 19,67,094/- alongwith interest @ 7% per annum w.e.f. 13.01.2021 till realization is passed in favour of the plaintiff and against the defendants. The liability of the defendants shall be joint and several. Decree sheet be drawn.
Digitally signedFile be consigned to record room. SANJAY by SANJAY SHARMA SHARMA Date: 2024.10.16 18:03:42 +0530 Announced in the open Court SANJAY SHARMA-II on this 16 October, 2024 th DJ (Commercial Court)-11 (Central) Tis Hazari Courts, Delhi
CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 38 of 39 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. CNR No.: DLCT01-000079-2022 CS (Comm.) No. 70/2022 16.10.2024 Proceedings convened through Video Conferencing. Present : Ms. Tulna Rampal, Ld. Counsel for the plaintiff.
Mr. Kunal Madan, Ld. Counsel for the defendants. Mr. Sandeep Bhandari, AR of the plaintiff is present (through physical mode).
Vide separate judgment, the suit of the plaintiff is decreed with costs and a decree in the sum of Rs. 19,67,094/- alongwith interest @ 7% per annum w.e.f. 13.01.2021 till realization is passed in favour of the plaintiff and against the defendants. The liability of the defendants shall be joint and several. Decree sheet be drawn. File be consigned to record Digitally signed room. SANJAY by SANJAY SHARMA SHARMA Date:
2024.10.16 18:03:51 +0530 Sanjay Sharma-II DJ (Commercial Court)-11 Central, THC, Delhi 16.10.2024 CS (Comm.) No. 70/2022 Sandeep Opticals Co. Pvt. Ltd. vs. Laxmi Eye Care LLP & Ors. Page No. 39 of 39