Delhi District Court
M/S Options Printofast vs Mc Learners Publications on 23 December, 2023
IN THE COURT OF MS. KIRAN BANSAL,
DISTRICT JUDGE, COMMERCIAL COURT-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CS(COMM) NO. 422/2022
M/s Options Printofast
Through its Partner, Sh. Manish Jain,
Add.: Having its office at- 64, FIE,
Patparganj Industrial Area, Delhi-110092.
.........Plaintiff
Versus
1. Mc Learners Publications,
Through its Partner
R/o 176, Patparganj Industrial Area,
Delhi- 110092
2. Sh. Praveen Gupta
Partner of Mc Learners Publications
R/o G-356, Preet Vihar, Delhi-110092
3. Sh. Tridib Barua,
Partner of Mc Learners Publications
Situated at: 176, Patparganj Industrial Area,
Delhi- 110092
....Defendants
Date of Institution : 05.08.2022
Date of final arguments : 04.11.2023
Date of judgment : 23.12.2023
CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 1 of 35
JUDGMENT
1. The plaintiff has filed the present commercial suit for recovery of Rs. 5,08,534/- along with pendente lite and future interest @ 24% per annum against the defendants.
2. Succinctly, the case of plaintiff is that the plaintiff is in the business of printing and book binding and the defendant is in the business of book publishing. It is stated by the plaintiff that the defendant is having the business relation of getting the books printed and binding from the plaintiff. It is further stated by the plaintiff that the defendant no.1 is the partnership firm and defendant no.2 and 3 are the partners of the defendant no.1 and all the defendants are jointly and severally liable. It is further stated by the plaintiff that the plaintiff is also a registered partnership firm. The suit has been filed by Sh. Manish Jain, stated to be authorized Partner on behalf of the plaintiff to file the present suit. It is further averred that all the transactions between the plaintiff and the defendants are effected on the legal GST invoices and that the defendant was regularly making payments but now the defendants has stopped making payments at all. As on 3 rd April, 2019, the defendant had an outstanding balance of Rs. 3,11,357/-. It is also stated that the defendants are well aware that in case of delayed payment, they were liable to pay interest at the rate of 2% per month or 24% per annum and thus, the plaintiff has claimed an amount of Rs. 2,17,177.64/- as interest till 26th February, 2022 at the rate of 24% per annum. Plaintiff has further stated that the parties are maintaining running accounts and defendant has deducted TDS and had lastly deposited TDS in the year 2019 of an amount of Rs. 3,568/-. Plaintiff has further averred that the defendant has lastly made payment of Rs. 20,000/- on 24 th September, 2021 and despite reminder is not clearing the outstanding balance.
CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 2 of 353. A legal notice was also sent upon the defendants on 28 th February, 2022 asking him to make the payment of the outstanding amount as well as the interest, but the defendant did not comply with the same. The suit is said to be within the limitation as the last payment was made on 29 th September, 2021 and also in view of the extended limitation by the Hon'ble Apex Court "In Re: Cognizance For Extension of Limitation, dated 10.01.2022". It is stated that defendant is residing within the jurisdiction of the present Court and therefore, the present Court has jurisdiction to try and decide the present suit. Along-with the plaint, affidavit of the plaintiff and statement of truth has been filed and affidavit under Order XI Rule 6 (3) CPC is also filed in support of the digital evidence.
4. The summons of the suit were issued to the defendant. The defendants appeared through Counsel on 09th December, 2022 and WS, statement of truth as well as affidavit of admission and denial of documents of plaintiff was filed. In the WS filed by the defendants, the defendants have stated that the present suit is not maintainable and is liable to be dismissed as the same has been filed without any cause of action. Defendants have further stated that the plaintiff has become dishonest and wants to grab money and has filed the present suit on the basis of forged and fabricated documents. As per the defendants, no amount is due upon the defendant as alleged by the plaintiff. It is also stated that Sh. Manish Jain has no authority to file the present suit. It is also stated that the present Court has no pecuniary jurisdiction to try and decide the present suit as the suit has been valued above Rs. 3,00,000/- by showing fake invoices and claiming higher interest. Defendant has further stated that they were having business relation with the plaintiff only in the month of March, 2019 and there was no business transactions in the month of February, 2019 or April, 2019 or specifically on 25th February, 2019 and 3rd April, 2019. Defendant has further averred that CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 3 of 35 the GST/ tax was paid only for the invoices against which the transaction took place and the plaintiff has filed fake and fabricated invoices. The defendant has specifically denied any transaction against the invoices no. OFST/18-19/1518 dated 25.02.2019 of Rs.69720/- and invoice no.OFST/19-20/008 dated 03.04.2019 for Rs.57876/- and stated that this was the reason that no TDS/ GST was paid by any party for these two invoices. As per the defendants, they have already made full and final payment to the plaintiff in the year 2019 itself.
5. It is further stated that invoice no. OFST/18-19/1518 dated 25.02.2019 and invoice no. OFST/19-20/008 dated 03.04.2019, both invoices are fake, fabricated, manipulated and self made by the plaintiff. It is further averred that there were no business transaction of any type between the plaintiff and defendants for the said both invoices. The defendants have no concern with the said both invoices in any manner. It is further stated that documents filed for the invoice no. OFST/18-19/1563 dated 02.03.2019, invoice no. OFST/18-19/1583 dated 07.03.2019 and invoice no. OFST/18-19/1694 dated 28.03.2019 are also not the genuine documents/ invoices. It is further submitted that there were business transactions with the defendants only for these three invoices bearing no. OFST/18-19/1563 dated 02.03.2019, invoice no. OFST/18-19/1583 dated 07.03.2019 and invoice no. OFST/18-19/1694 dated 28.03.2019 and the invoice no. of these three invoices are correct but the documents/ papers/ copies of these three invoices, which have been filed by the plaintiff, are not genuine documents which are fake and fabricated by the plaintiff. It is further averred that the defendants had already made full and final payment in cash to the plaintiff in installments for these three invoices and defendants also paid/ deposited 2% GST/ TDS, i.e. Rs. 3568/-, on the total amount of these three invoices. It is further stated that the answering CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 4 of 35 defendants are not at all liable to pay any outstanding balance Rs. 3,11,357/- or any interest @ 2% per month or Rs.2,17,177/- as claimed by the plaintiff. It is further averred that the defendants had made all the payments to the plaintiff in the year 2019 itself but after three years the plaintiff became dishonest in the month of September, 2021 and plaintiff came to the defendants and asked the defendants that there is outstanding balance of Rs. 20,000/- towards the defendants. The defendants opposed the said illegal demand of the plaintiff but on this plaintiff started quarreling with the defendants with abuses and insulted the defendants. It is further stated that the defendants thought that plaintiff has became dishonest and wants to grab more money, so to end the quarrel for the said small amount, the defendants gave the said money of Rs. 20,000/- to the plaintiff on 24.09.2021. It is further submitted that despite receiving the total money from the defendants and despite grabbing the said money of Rs. 20,000/- illegally from the defendants, the plaintiff filed the present suit for recovery of more money from the defendants. Further, it is prayed that the plaint of the plaintiff may be dismissed with heavy costs in favour of the defendants and against the plaintiff.
6. In the replication, the plaintiff has denied averments made in written statement and re-affirmed the contents of the plaint.
7. Defendant has not filed any documents with his WS. As the defendant has admitted the three invoices i.e. invoice dated 02.03.2019, 07.03.2019 and 28.03.2019, the same were exhibited as Ex.P1, Ex.P2 and Ex.P3 respectively during admission / denial of documents.
8. After admission/denial of documents, following issues were settled for consideration on 24.04.2023:
i. Whether Mr. Manish Jain has authority to file the instant suit? OPP CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 5 of 35 ii. Whether the plaintiff printed the books for defendant against the invoices apart from admitted invoices Ex.P1, Ex.P2 and Ex.P3? OPP iii. Whether the plaintiff is entitled for money decree? If so, to what amount? OPP iv. Whether the plaintiff is entitled for any interest? If so, to what rate and for which period? OPP v. Relief.
9. In order to prove its case, the plaintiff PW-1 has filed evidence by way of his affidavit which is tendered as PW1/A, and he proved the following documents:
i. Invoices (7 pages) as Ex.PW1/1 (colly); ii. Invoice dated 02.03.2019 is also Ex.P1; iii. Invoice dated 07.03.2019 is also Ex.P2; iv. Invoice dated 28.03.2019 is also Ex.P3; v. Copy of MSME Certificate as Mark A;
vi. Computer Generated GST No. which as Ex.PW1/3; vii. Pan No. which as Ex.PW1/4;
viii. Partnership registration Certificate running into 3 pages as Ex.PW1/5; ix. Report of Pre-litigation mediation dated 11.04.2022 as Ex.PW1/6; x. Statement of accounts running into 3 pages as Ex.PW1/7; xi. Legal Notice dated 28.02.2022 as Ex.PW1/8; xii. Postal Receipts with returned postal covers running into 3 pages as Ex.PW1/9 (colly);
10. On the other hand, the defendants have examined Sh. Tridib Barua as DW-1 who tendered his evidence by way of affidavit Ex. DW1/A. DW-1 has CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 6 of 35 not proved any document in his evidence. DW-1 was duly cross examined on behalf of plaintiff. Thereafter, DE was closed.
11. The court has gone through the testimony of witnesses and perused the material placed on record. The court has also gone through the law on the point and duly considered the arguments advanced by counsel for both the parties.
12. The findings on various issues are as under:
Issue no. (i). Whether Mr. Manish Jain has authority to file the instant suit? OPP
13. The onus of proving this issue was upon the plaintiff. The plaintiff has examined one witness Mr. Manish Jain in support of its case who in his affidavit has stated that he is partner of the plaintiff and is fully conversant with the facts of the case. The partnership registration certificate is Ex.PW1/5. Copy of MSME Certificate is Mark A. As per Mark A, M/s Options Printofast is in the service of manufacturing activity of printed books, notebooks, exercise books envelopes etc. and it is mentioned that Sh. Manish Jain has filed memorandum expressing its intent to set up a manufacture enterprise. In computer generated registration certificate Ex.PW1/3, legal name as well as trade name of the firm is Options Printofast and same is a partnership firm. The firm has been registered in the year 2002 as per Ex.PW1/5 and has two partners Sh. S.C. Jain and Mr. Manish Jain. During cross, PW-1 has denied the suggestion that he is not the partner of the plaintiff firm or he has no authority to file the present suit. The partnership firm of the plaintiff is registered as per Ex.PW1/5 and Sh. Manish Jain is one of its partner. The Hon'ble High Court at Delhi in case titled as M/S Sai CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 7 of 35 Nath Enterprises & Ors Vs. North Delhi Municipal, CS(OS) Nos.3397/2014 & 3460/2014, in its order dated 23.12.2015 has held that "69. The main question before this Court is whether the suit filed by the plaintiffs was barred under Section 69 sub-section (2) of the Partnership Act?
i) If the suit was so barred, whether subsequent registration of the plaintiff's firm under the Partnership Act could revive the suit or make it competent at least from the date on which such registration pending the suit was obtained by the respondent-firm.
70. The relevant provision of the Partnership Act. Section 69 sub- section (2) reads as under:
"69. Effect of non-registration.--(1)*** (2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm."
71. The above mentioned provision states that the suit filed by an unregistered firm against a third party for enforcement of any right arising from a contract with such a third party would be barred if the plaintiff-partnership firm on the date of the suit is not registered under the provisions of the CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 8 of 35 Partnership Act and the persons suing are not shown in the Register of Firms as partners of the firm, on the date of the suit. The unregistered firm or the partners mentioned in the sub- section must be suing the defendant-third party.
72. It is settled law that when the language of any provision is plain and clear, then the literal rule of interpretation has to be applied and there is ordinarily no scope for considering the equity, public interest or seeking the intention of the legislature. When there is a conflict between the law in hand and equity, it is the law which must prevail.
73. Although the firm is not a legal entity, yet the provisions of Order 30 Rules 1 and 2 CPC enable several persons doing business as partners to sue or be sued in the name of the firm. The effect of a suit instituted in the name of the firm in the manner prescribed by Order XXX Rule 1 CPC. is as if the suit is filed by all the partners collectively. Whether the suit is filed by all the partners collectively or by only some of the partners impleading the rest as parties to the suit or whether it is filed in the name of the firm by one or more partners in the manner indicated by Order XXX Rule 1 CPC., the conditions prescribed by Section 69(2) must be fulfilled. They are:
(1) that the firm must be registered; and (2) that the persons suing are or have been shown in the Register of Firm as partners in the Firm. The second condition requires that the CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 9 of 35 names of the persons suing are presently shown or have been previously shown in the Register of Firms as partners in the firm. That appears to follow plainly from the provisions of Sec. 69(2)."
14. In the present case all the necessary conditions are fulfilled as the firm is registered and Sh. Manish Jain is shown as one of the partners in the Register of Firm as per Ex.PW1/5. Hence, Sh. Manish Jain has the authority to file the present suit. Plaintiff has proved the documents in this regard during his evidence. On the other hand, defendant has not led any rebuttal evidence. On the basis of on Oath Statement of plaintiff/PW-1 along with the documents i.e. Ex.PW1/5, Partnership registration certificate, it is proved on record that suit has been instituted by a duly authorized person.
Issue no. 1 is thus, decided in favour of the plaintiff and against the defendant.
Issue no. (ii). Whether the plaintiff printed the books for defendant against the invoices apart from admitted invoices Ex.P1, Ex.P2 and Ex.P3? OPP
15. The defendant herein has admitted three invoices numbers Ex.P1, dated 02.03.2019, Ex.P2 dated 07.03.2019 and Ex.P3 dated 28.03.2019 (though has denied the correctness of the contents), however, the defendant has denied purchasing any article vide invoice dated 25.02.2019 no. OFST/18-19/1518 amounting to Rs. 69,720/- and invoice no. OFST/19- 20/008 dated 03.04.2019 amounting to Rs. 57,876/-.
16. The relevant cross-examination of PW-1 in respect of the invoice of February and April, 2019 as well as other invoices are as under:
CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 10 of 35Cross dated 16.05.2023 ".....It is wrong to suggest that no work order regarding the invoices dated 25.02.2019 and 03.04.2019 was issued by the defendants......
.....Usually if delivery is done during day time we get the receiving on the second copy of the invoice but sometimes deliveries are done at late hours as per the availability of transportation and instructions of the parties. On such deliveries sometimes receiving are not done by the transporters. The material which is subject matter of the present suit was most likely been picked by the person from the defendant's firm from our factory. I had filed the photocopy of work orders placed by the defendant for invoices in question which are marked as Mark B (colly)."
Cross dated 20.05.2023 ".....It is correct that the copy of invoice dated 03.04.2019 is not filed by me on record.....
.....I had placed on record the ledger of my books of accounts showing the entry of invoice dated 03.04.2019. I had not filed the GST invoice of dated 03.04.2019. Vol. The invoice dated 03.04.2019 was handed over in original and duplicate to the defendants at the time of supply of the materials and due to same the copy of the invoice was not placed on record......
.....During all other transactions this was the only invoice wherein both original and duplicate were taken over by the defendants in other invoices the duplicate were available and CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 11 of 35 handed over to us by the defendants and hence, same are filed on record.....
.....It is wrong to suggest that no work was performed by us against the invoice dated 25.02.2019 and 03.04.2019. It is correct that any TDS deposited under our PAN No. if reflected in Form 26 AS can be claimed as refund by us from the Income Tax Department. It is correct that the TDS of Rs.3,586/- deposited by the defendants under our PAN No. has been adjusted in our Income Tax Return as claimed by me.....
.....It is wrong to suggest that there was only transactions regarding invoice dated 02.03.2019, 07.03.2019 & 28.03.2019 and despite the payment has already been made by the defendants still you are claiming the amount in the present suit. At this stage witness is shown Mark B(Colly). It is correct that mark B(Colly) does not bear any specific date, any signature except Order No. 001 which bears date 15.02.2019. Vol. These orders may be received through email and due to same no specific date and signature are available in the attachment.....
.....Q. Can you place copies of email or any proof showing the order was placed under Mark B(Colly).
A. I can check my e-mail and produce the same.
Court observation: The emails have been shown to the counsel for defendants who submits that the print out of the same may be filed.
Four E-mails dated 14.02.2019, 14.02.2019, 19.02.2019 and 08.03.2019 are placed on record alongwith attachment CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 12 of 35 copies which are now Ex.PW-1/D1,Ex.PW-1/D2, Ex.PW- 1/D3, Ex.PW-1/D4 . The witness is shown Ex.PW1/D1 and question as under.
Q. Can you show from the e-mail the same has been sent by the defendant.?
A. The said mail has sent from the other email Id by the defendant. I.e, [email protected] which is used by the brother of the defendant. Purchase order has also attached on the letter head of defendants with E-mail. It is incorrect to suggest that the defendant has never placed the said purchase order and has no concern with his brother. It is incorrect to suggest that the other E-mails i.e. Ex.PW1/D2 to Ex.PW1/D4 are not of defendants. It is incorrect to suggest that the defendant has no concern with Ex.PW1/D2 to Ex.PW1/D4......
17. The relevant cross-examination of DW-1 is reproduced hereinbelow:
".....I used to see the books of account of defendant no.1 whenever its shown to me, however, I do not check the same.....
.....Now, I do not remember whether I have checked the ledger of the plaintiff firm.....
.....I never checked the ledger of the plaintiff firm even after filing of the present suit and after appearance in the matter. Vol. I had only gone through the suit filed by the plaintiff and not checked the ledger even thereafter.CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 13 of 35
I had no outstanding towards the plaintiff firm. I cannot tell what was the amount paid by the defendant to the plaintiff firm. Whatever amount is demanded by the plaintiff, same was paid. Vol. We have cleared three bills as demanded by plaintiff firm. The same is shown in the GST website.
We have made the payment to plaintiff firm through cash. Vol. First we have to clear the payment of previous job works before accepting the next bill. The payments are handled by my another partner Shri Praveen Gupta.
It is correct that defendants have not filed any ledger of the plaintiff firm maintained by the defendants in their books of accounts....
.....It is correct that the books published by defendant firm have the mention of email ID of defendant firm.
Vol. It is matter of fact whether the email ID is working or not.
I cannot tell whether at present any email ID of the defendant firm is working or not.
At this stage, witness is shown a book marked as Mark X. Ques: Whether you recognize this book?
Ans.: This book is not of defendant's firm and is a manipulated record by plaintiff.
I have heard that the GST portal sends a message on registered mobile number and email on registered email ID for any generation of E-way bill but we never received any message or email from plaintiff's side.....
.....I cannot say if I had received any message or email pertaining to the E-way bills generated for the three CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 14 of 35 invoices admitted by me in the written statement. Vol. My Accountant must be knowing.
Mr. Umesh is my Accountant. I do not remember the mobile number and email ID on which the message is received. The email ID [email protected] was of our firm, however, I shall have to check if the said ID address is still of our firm or not.
The witness after checking from the mobile phone submits that email ID [email protected] is still of their firm. Any email sent from the said ID and containing the attachment files even though the attachment file is not signed still the same belongs to us and we abide by the said attachment.
At this stage, witness is shown Ex.PW1/D3 and stated that it is correct that the email dated 19.02.2019 was sent from the ID of defendant firm. However, I am not confirmed whether the attachment is correct or not.... .....At this stage, witness is shown Ex.PW1/D4 and stated that it is correct that the email dated 08.03.2019 was sent from the ID of defendant firm. However, I am not confirmed whether the attachment is correct or not.
At this stage, witness is shown Ex.PW1/D2 and stated that it is correct that the email dated 14.02.2019 was sent from the ID of defendant firm. However, I am not confirmed whether the attachment is correct or not. ......It is correct that defendants have not placed any proof on record regarding the payment made in cash to the plaintiff CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 15 of 35 firm. Vol. Due to the close friendship, there was no such requirement.
It is wrong to suggest that no such proof is placed on record as no such payment in cash was made to the plaintiff firm. It is wrong to suggest that no books or accounts or ledger of defendant firm was placed on record because same will show clearly that no payment in cash was made to the plaintiff firm.
I have heard that even the payment of Rs.20,000/- was made by the defendant to the plaintiff . Vol. My partner told me that though the payment had already been made, however, the plaintiff came to his house and harassed him due to which he had to immediately make the payment by bank transfer..... .....I do not remember whether I have checked the bill dated 07.03.2019 or not. I have not checked all the five bills which are Ex.PW1/1 (colly) and Ex.P1 to P3 even after filingof the present suit or prior to preparation of the evidence by way of affidavit. Vol. There was no need to check the same as the three amounts mentioned in GST are already settled.... .....I accept only the bill number and the amount of invoice Ex.P1 to Ex.P3.....
....Ques. Can you produce your records for Ex.P1 to P3? Ans. I cannot tell whether I can produce the above record or not. I have to consult the Accountant of the firm..... ....I had not seen the invoices even in the GST portal. I had not made efforts to see the invoices Ex.P1 to P3 as the same are already settled in GST record....CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 16 of 35
.....I do not know whether there is any Form A in GST portal wherein it is shown the details of invoices issued to our firm by the other vendors. Vol. It is a work of Accountant. ....I had not personally check the admitted invoices. It was informed by the accountant and accountant had informed that the invoices have been settled....
....I cannot tell what are the materials received under Ex.P1 to Ex.P3. I cannot tell as to when the payments in cash was made to the defendant firm. Vol. It was between Mr. Praveen Gupta and Mr. Manish Jain....
Cross dated 31.05.2023 "....I am not aware whether all the orders placed by defendant firm were duly executed and handed over by the plaintiff firm to the defendants or not. We have not written any email or letter to the plaintiff claiming any shortage or incompletion of the order placed by the defendants to the plaintiff. Now, I do not remember whether the plaintiff had completed all the orders placed by the defendant or not. Now, I do not remember whether the defendants have made the payments to the plaintiff firm within 30 days of the invoice or not.
At this stage, witness is shown Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3, it is correct that in the Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3 at point B it is mentioned that interest will be charged @ 2% per month if the payment not received within the stipulated time period. Vol. The Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3 are not the same documents which CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 17 of 35 were received by me at the time of supply of the good. Only a slip mentioning the amount was sent with the goods.
At this stage, witness is shown Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3, it is correct that in the Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3 at point A it is mentioned that mode/terms of payment 30 days. Vol. The Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3 are not the same documents which were received by me at the time of supply of the goods. Only a slip mentioning the amount was sent with the goods. The documents Ex.PW1/1 (colly), Ex.P1, Ex.P2 & Ex.P3 are fabricated....
Cross dated 04.07.2023 "....Witness is shown an E-way bill bearing No. 771064565453.
Ques:I put it to you that this E-way bill was issued for your firm?
Ans: The name of the firm on the E-way bill is correct but I do cannot tell as to for what purpose the same was generated as we never received the same.
Witness is shown an E-way bill bearing No. 71105772866. Ques: I put it to you that this E-way bill was issued for your firm?
Ans:The name of the firm on the E-way bill is correct but I do cannot tell as to for what purpose the same was generated as we never received the same.
The E-way bills are Ex.DW1/P1 and Ex.DW1/P2...."CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 18 of 35
18. First of all, issue regarding invoice no. OFST/19-20/008 dated 03.04.2019 is dealt with. The plaintiff has not placed the office copy or any photocopy of the same on record. In the list of documents filed by the plaintiff, it is stated that the invoices along with purchase order are from page no. 1 to 11 and plaintiff has further stated that the said documents are in possession of defendant and the second copy has been placed on record. In these 11 pages, 7 pages are of the invoices and 4 pages are of the purchase orders. The purchase orders were marked as Mark 'B'. The emails along with the attachments (copies of the purchase orders) in this respect are also Ex.PW1/D1, Ex.PW1/D2, Ex.PW1/D3 and Ex.PW1/D4. During cross- examination of PW-1, the plaintiff has admitted that the copy of purchase order in respect of invoice dated 03.04.2019 for an amount of Rs.57,876/- is not filed by him on record. The onus was upon the plaintiff to have proved that he had supplied the goods to the defendant as per the alleged invoice dated 03.04.2019. However, not only the copy of the invoice is not placed on record, even the copy of the relevant purchase order has not been placed on record by the plaintiff. If the purchase orders Mark B (also part of Ex.PW1/D1 to Ex.PW1/D4) is compared with the invoices Ex.PW1/1 (proved during the evidence), then the goods i.e. the books supplied to the defendant as per the invoices Ex.PW1/1 tally with the purchase orders Mark B (also part of Ex.PW1/D1 to Ex.PW1/D4). The plea of the plaintiff is that both the original and the duplicate invoice dated 03.04.2019 were handed over to the defendant at the time of supply of the material. However, the plaintiff at least should have been in possession of the relevant purchase order/email and could have filed the same on record along with Mark B or Ex.PW1/D1 to Ex.PW1/D4. Counsel for the plaintiff has argued that the E-way Bill in this respect is Ex.DW1/P1, which was put to the DW-1 during his cross examination and on the basis of the E-way Bill CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 19 of 35 Ex.DW1/P1, it has been established that goods have been supplied to the defendant on 03.04.2019 as per the alleged invoice dated 03.04.2019. It is pertinent to mention that the E-way Bills were not filed by the plaintiff at the time of filing of the suit along with the plaint. The plaintiff during his own evidence has not produced the said E-way bills nor sought any specific permission from the court under Order XI Rule 1 (5) CPC for placing on record the said E-way bills (additional documents). The question now is whether the plaintiff could have filed a document at the time of cross examination of the opposite party, which the plaintiff has not filed at the time of filing of the suit along with the other documents/plaint.
19. The Hon'ble Supreme Court in Special Leave Petition (Civil) No.14445 of 2021), Mohammed Abdul Wahid vs Nilofer, decided on 14 December, 2023 has dealt with the above issue and after taking into account the various provisions of CPC i.e. Order VII, Order VIII and order XIII observed as below:
"26. To conclude the issue at hand- The freedom to produce documents for either of the two purposes i.e. cross examination of witnesses and/or refreshing the memory would serve its purposes for parties to the suit as well. Additionally, being precluded from effectively putting questions to and receiving answers from either party to a suit, with the aid of these documents will put the other at risk of not being able to put forth the complete veracity of their claim- thereby fatally compromising the said proceedings. Therefore, the proposition that the law differentiates between CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 20 of 35 a party to a suit and a witness for the purposes of evidence is negated.
27. In Purushottam (supra) the Learned Single Judge had observed that it was not open for the trial court to allow the production of documents to confront the party to the suit and it would be a different course if the person being confronted was only a witness to the suit. While Vinayak Dessai (supra) essentially agrees on this point, the difference arises with the latter saying that a party and a witness can be equated for the purposes of the two being on the same pedestal while entering evidence. Both the above-stated judgments differ with Upper India Couper Paper Mills Co. Ltd. (supra) which says that it is not obligatory to produce advanced copies of documents sought to be introduced for the limited purpose of cross- examination.
28. It is settled law that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet. It is equally well settled that the requirement of having to plead a particular argument does not include exhaustively doing so. We may refer to Ram Sarup Gupta v. Bishun Narain Inter College 14, wherein it was observed as follows:
"6. ... It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 21 of 35 permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. To have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words that may not expressly make out a case in accordance with a strict interpretation of the law. In such a case the court must ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead, the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead, the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal...."
29. We may also refer to Udhav Singh v. Madhav Rao Scindia15, wherein a bench of two learned judges observed:
CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 22 of 35"25...If the plea or ground of defence "raises issues of fact not arising out of the plaint", such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint."
30. A reading of the judgments above would imply that substance is what the courts need to look into, and therefore, in reference to the production of documents, in the considered view of this court, so long as the document is produced for the limited purpose of effective cross- examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.
31. Save and except the cross-examination part of a civil suit, at no other point shall such confrontation be allowed, without such document having accompanied the plaint or written statement filed before the court. For this purpose, reference be made to Order VII Rule 14(4)(This Rule speaks of the plaintiff necessarily listing in his plaint and, producing CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 23 of 35 before the court, the documents upon which they seek to place reliance, in support of his claim. Sub-rule 4 exempts from this obligation documents produced for the limited purpose of cross-examination or to jog the memory of a witness), Order VIII Rule 1A(4)(a) (This Rule speaks of the defendant necessarily listing in his Written Statement and, producing before the court the documents upon which they seek to place reliance, in defense of his claim for set- off or counterclaim. Sub-rule 4 exempts from this obligation documents produced for the limited purpose of cross- examination or to jog the memory of a witness) and Order XIII Rule 1(3) (This Rule speaks of either party or their pleaders obligatorily producing, post the settlement of issues in a Suit, the documentary evidence upon which reliance is placed. Sub-rule 3 exempts from this obligation documents produced for the limited purpose of cross-examination or to jog the memory of a witness), all three of which, while dealing with the production of documents, by the plaintiff, defendant and in general, respectively, exempt documents to be produced for the limited purpose of cross-examination or jogging the memory of the witness.
32. In light of the above discussion, and the answer in the negative to the first question before this court, meaning thereby that there is no difference between a party to a suit as a witness and a witness simpliciter- the second issue in this appeal, in view of the provisions noticed above, production of documents for both a party to the suit and a CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 24 of 35 witness as the case may be, at the stage of cross-
examination, is permissible within law."
20. In view of the above judgment, a document (not having accompanied the plaint) could have been produced by the plaintiff at the time of cross examination of the defendant only for the limited purpose of refreshing the memory of the witness or to confront the witness. In the present case, as the defendant had denied the placing of any order or receiving of any goods against the alleged invoice dated 03.04.2019, there was no question of confronting the witness or to jog his memory by producing the E-way bill Ex.DW1/P1. The E-way bill otherwise is also a digital print out and for proving any digital evidence the same should have been accompanied with an affidavit / declaration on oath as per Order XI Rule 6 (3) CPC as amended by the Commercial Courts Act. The E-way bills Ex.PW1/D1 is not supported by any such affidavit/declaration on oath under Order XI Rule 6 (3) CPC and thus, though exhibited, cannot be considered to be legally proved document as per law. The E-way bill Ex.PWDW1/P1 thus, cannot be taken into account to come to any conclusion regarding alleged invoice dated 03.04.2019.
21. As already observed, even if the plea of the plaintiff that the original as well as duplicate invoice dated 03.04.2019 was handed over to the defendant at the time of supply of material is taken into account then also the plaintiff should have placed on record the relevant purchase order/email. The emails Ex.PW1/D1 to Ex.PW1/D4 were in fact produced by PW-1 in the court at the time of cross examination and were placed on record at the instance of the ld. counsel for the defendants. If the contents of the purchase order annexed with the emails Ex.PW1/D1 to Ex.PW1/D4 are taken into account then the books as per the purchase orders are same which finds mention in the invoice CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 25 of 35 Ex.PW1/1. In the absence of any other supporting document, especially, the email or the purchase order or invoice it cannot be said that the plaintiff has supplied books/goods to the defendant on the basis of alleged invoice dated 03.04.2019, only on the basis of E-way bills Ex.PW1/D1 which has not been legally proved on record during evidence. The plaintiff, thus, has not been able to prove that he has printed books for defendant against the alleged invoice dated 03.04.2019.
22. Now, coming to the invoice dated 25.02.2019, the said invoice is part of Ex.PW1/1 and is for an amount of Rs.69,720/-. As per the said invoice, the books printed were 'know your alphabet', 'my first book of picture', 'Akshar Madhuri' and 'Shabd Madhuri'. The purchase order of these four books is order no. 002 and is part of Mark B and also Ex.PW1/D2. Ex.PW1/D2 was taken on record on the submission of the counsel for defendant who had stated at the time of cross examination of PW-1 that the print out of the emails may be filed on record. DW-1 has admitted during his cross examination that the email ID [email protected] belongs to their firm. When further confronted, he has admitted that the email dated 14.02.2019 Ex.PW1/D2 was sent from the ID of the defendant firm. He, however, stated that he cannot confirm whether the attachment is correct or not. Once he has admitted that the email Ex.PW1/D2 dated 14.02.2019 was sent from the ID of the defendant's firm, the onus was on the defendant to have proved as to what attachment they had sent with the email if the attachment filed by the plaintiff is not correct. This cross examination of the defendant was conducted on 26.05.2023. Thereafter, the cross examination of DW-1 was further conducted on 31.05.2023. But, still DW-1 did not place on record the copy of the email along with the attachment sent from their ID to the plaintiff, if the attachment placed by the plaintiff was not CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 26 of 35 correct. DW-1 has stated that he has not even checked the bills after filing of the present suit or prior to the preparation of evidence by way of affidavit, nor he had personally checked the invoices. It is a settled law that every trial is a search of truth and the purpose and objective of trial is to secure a fair and impartial administration of injustice between the parties to the litigation.
23. Mark B are the purchase orders which are filed by the plaintiff along with his plaint but were marked at the time of cross examination of the PW-1 as Mark B when the ld. counsel for defendant had specifically put a question to PW-1 in this respect. The affidavit of Sh. Manish Jain, partner of plaintiff under Order XI Rule 6 (3) of Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 as amended by the Commercial Courts Act in support of the purchase order as well as ledger account, GST registration and MSME Certificate is also filed on record by the plaintiff on 22.09.2022. The said purchase order Mark B are also forming part of the emails Ex.PW1/D1 to Ex.PW1/D4. The purchase order specifically in relation to the invoice dated 25.02.2019 is part of Ex.PW1/D2 and therefore, the invoice dated 25.02.2019 as well as the purchase order in relation to the said goods have been proved during evidence. The plaintiff thus, has discharged his onus that he has printed the books for the defendant as per the invoice dated 25.02.2019. On the other hand, the defendant has not led any rebuttal evidence. The defendant in fact has not examined his accountant Sh. Umesh who used to keep the accounts of the defendant, neither has examined Sh. Praveen Gupta who allegedly used to make the payments in cash to the defendant firm. The defendant in fact has not filed any documents along with their WS. The onus was upon the defendant also to file the ledger account of the plaintiff's firm maintaining by them in their books of account, if the plea of the defendant was that the invoices and ledger account of the plaintiff is not correct. In CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 27 of 35 fact, the reading of the cross examination of DW-1 clearly leads to inference that he has been evasive in his answers to the questions put to him during cross examination.
24. In view of the above discussion and the invoice Ex.PW1/1 proved on record by the plaintiff along with the purchase order Mark B and the email Ex.PW1/D2, it is proved that the plaintiff has printed the books for the defendant against the invoices no. OFST/18-19/1518 of Rs.69720/- dated 25.02.2019.
Issue 2 is thus, partly decided in favour of the plaintiff and partly decided in favour of defendant.
Issue no. (iii). Whether the plaintiff is entitled for money decree? If so, to what amount? OPP
25. The plaintiff has proved his case on oath and has also proved the documents on oath i.e. invoice etc. as well as the ledger account on oath and has also withstood the cross examination on behalf of defendant. Even during cross examination when a question was put to him regarding purchase order, he has clearly shown the purchase orders as well as email received by him from the defendants from his mobile phone. The only issue is regarding email Ex.PW1/D1 which is from the email account of Black Bird Books Private Ltd. and not from the MC Learners Publication. However, the purchase order attached alongwith email is of MC Learners Publication and is in respect of books 'English Phonics - A', 'English Phonics - B'. The invoice of these books of English Phonics - A and English Phonics - B is Ex.P2, dated 07.03.2019. Though, as per email Ex.PW1/D1, this purchase order has been received from the email ID of Black Bird Books Private Ltd. but the purchase order is on the letter head of MC Learners Publication. Moreover, the invoice in respect of this purchase CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 28 of 35 order is Ex.P2 and is an admitted document on behalf of defendant. DW-1, during his cross examination has admitted the invoice number as well as the amount of the invoice Ex.P1, Ex.P2 and Ex.P3 are correct and therefore, even if the email was not sent from the email ID of MC Learners Publication but the attachment containing the purchase order is on the letter head of the MC Learners Publication and the invoice Ex.P1 also is in the name of the defendant and is an admitted document therefore, sending of purchase order from the email ID of Black Bird Books Pvt. Ltd. would not make any difference. The testimony of PW-1 inspire confidence and is consistent. On the other hand, reading of the cross examination of DW-1 reveals that DW-1 in fact has been evasive in most of his answers. Also, the defendant though has examined one witness DW-1 but has not filed any document on record in support of his defence. He has stated that there was close friendship and therefore, there was no requirement of keeping proof of payment made in cash. DW-1, further has admitted that the payments were handled by Sh. Praveen Gupta. He has further stated that he has never checked the ledger of the plaintiff's firm even after filing of the present suit and after appearance in the matter. The defendant has admitted the invoice dated 02.03.2019, 07.03.2019 and 28.03.2019 but has denied the contents of the same and has stated that they are not genuine copy and are manipulated. But, once the defendant has admitted the invoice numbers then the onus was upon the defendant to have filed the correct invoices or atleast a copy of the same on record to prove his defence that the invoices filed by the plaintiff were not correct or were manipulated. As defendant has failed to file any invoices or copy of the same and has admitted the invoices filed by the plaintiff (also duly proved on oath by PW1), therefore, the invoice no. OFST/18-19/1563 dated 02.03.2019 for an amount of Rs.80,114/-, invoice no. OFST/18- 19/1583 dated 07.03.2019 for an amount of Rs.37,284/- and invoice no.
CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 29 of 35OFST/18-19/1694 dated 28.03.2019 for an amount of Rs.69,405/- are taken to be correct invoices. DW-1, during his cross examination has further admitted that he has not even checked the ledger of the plaintiff's firm even after filing of the present suit. As already observed, once the defendant has admitted that he was also maintaining the ledger of the plaintiff's firm then the defendant was duty bound to place the copy of the said ledger along with WS and non-filing of the same leads to an adverse inference against the defendant.
26. The defence of the defendant is that they had made the payment of the books purchased by them in cash, but, no evidence in this regard has been led by the defendant that the payment in cash was made by them. In fact, DW-1 has stated that the payments were handled by one Sh. Praveen Gupta and in such circumstances, it was only Sh. Praveen Gupta who could have proved this fact on oath that any payment was made by them to the plaintiff against the goods purchased by them. Sh. Praveen Gupta has not entered into the witness box for reasons best known to the defendant despite the fact that the affidavit of Sh. Praveen Gupta in examination in chief was filed at the time of defendants' evidence. The said affidavit was never tendered in evidence nor Sh. Praveen Gupta examined himself in support of his case.
27. Moreover, defendant, though, in their affidavit of admission and denial has denied the contents of the three invoices Ex.P1, Ex.P2 and Ex.P3 whose numbers they have admitted, however, DW-1 during his cross examination, has admitted that he accepts the bill numbers and the amount of the invoices Ex.P1, Ex.P2 and Ex.P3. Once the amount and the bill number is admitted, the court fails to understand as to what contents are not correct in the invoices. The plea of the defendant that they only admit invoice number and not the contents thereof is vague and evasive. DW-1, CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 30 of 35 even during his cross has stated that he cannot tell as to when the payments in cash was made to the defendant as same was between Sh. Praveen Gupta and Sh. Manish Jain. The defence of the defendant is that the payments against the invoices Ex.P1, Ex.P2 and Ex.P3 was made in cash to the plaintiff and the onus was upon the defendant to prove this fact by leading cogent evidence or atleast to state the exact dates when the alleged payments in cash were made. The case of the plaintiff throughout has been that defendant has failed to make the payments and it is only on 24.09.2021 that the payment of Rs.20,000/- was made. This payment of Rs.20,000/- was not made in cash by the defendants and is NEFT transfer as per the ledger account Ex.PW1/7. As per the defendants, the plaintiff had come to their place and asked for the payment of outstanding amount and when the plaintiff started quarreling with the defendant and had insulted the defendant, so to end the quarrel a payment of Rs.20,000/- was made. Both the plaintiff and defendant had thus met on 24.09.2021 and were standing face to face but still payment was made digitally. When the payment of Rs.20,000/- on 24.09.2021 was not made in cash and is NEFT transfer, the court fails to comprehend that the remaining payments by the defendant as claimed by them would have been made by them in cash. As the plaintiff has proved that he has printed the books against four invoices for the defendant and has received only Rs.20,000/- from the defendant and the defendant has not been able to prove his defence, it is thus, directed that plaintiff is entitled to an amount of Rs.2,33,481/- as principal as per calculation below:
Invoices No. Dated Amount OFST/18-19/1518 25.02.2019 Rs.69,720/- OFST/18-19/1563 02.03.2019 Rs.80,640/- OFST/18-19/1583 07.03.2019 Rs.37,284/- OFST/18-19/1694 28.03.2019 Rs.69,405/- CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 31 of 35 Total Rs.2,57,049/- th Payment made on 24 September, (-) Rs. 20,000/- 2021 TDS deducted (-) Rs. 3,568/- Total Rs.2,33,481
28. The plaintiff is having its office at- 64, FIE, Patparganj Industrial Area. As per the invoice the address of the Mc Learners Publications is also 176, Patparganj Industrial Area. The orders were placed within the territorial jurisdiction of the present court and therefore, the cause of action also arose within the jurisdiction of the present court and also as per the invoices Ex.PW1/1 the address of both the plaintiff firm and the defendant firm lies in Patparganj Industrial Area which falls within the jurisdiction of the present court, therefore, the present court has territorial jurisdiction to try and entertain the present case. This court also has the pecuniary jurisdiction over the matter since the suit amount claimed by the plaintiff is more than the specified value of Rs.3 lacs of the Commercial Courts.
29. The suit is also commercial in nature and squarely falls within the purview of Section 2 (1) (C) of Commercial Courts Act and plaintiff has also duly complied with mandatory provision of Pre-Institution Mediation and Conciliation as provided in Section 12 A of Commercial Courts Act. The limitation was also extended by the Hon'ble Supreme Court of India during Covid period. Thus, the suit is also filed within the period of limitation. Accordingly, issue no.3 is decided in favour of the plaintiff and against the defendant. Issue No.(iv): Whether the plaintiff is entitled for recovery of any interest?
If so, at what rate and for what period?
30. The plaintiff has claimed pendentelite and future interest @ 24% per annum in the plaint and also an amount of Rs.2,17,177.64 as interest upto 26.02.2022. On the invoices Ex.P1, Ex.P2 and Ex.P3, there is a stipulation that interest @ 2% per month will be charged if the payment is not made within stipulated time. In the column of mode of payment '30 days' CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 32 of 35 is mentioned. PW-1 was specifically cross-examined on this aspect and he pointed out the relevant clauses in the invoices Ex.PW1/1 during his cross examination.
31. The plaintiff has claimed an amount of Rs.2,17,177.64/- as interest as per following details:
Date Last due date for Amount Overdue days on Interest till payment 26.02.2022 26.02.2022 25.02.2019 28.03.2019 Rs.69,720/- 1065 48823.10 02.03.2019 01.04.2019 Rs.80,640/- 1061 56258.00 07.03.2019 07.04.2019 Rs.37,284/- 1055 25863.86 28.03.2019 28.04.2019 Rs.69,405/- 1034 47187.79 03.04.2019 05.05.2019 Rs.57,876/- 1026 39044.89 Total 217177.64
32. The interest has been calculated up to 26.02.2022. As already observed in issue no.2, that the plaintiff has not been able to prove the delivery of goods against alleged invoice dated 03.04.2019, the plaintiff is not entitled to claim of interest for an amount of Rs.39,044.89. The plaintiff is thus, entitled to the remaining interest of Rs.1,78,132.75/-, as per the stipulation on the invoices Ex.P1, Ex.P2 and Ex.P3 "interest will be charged @ 2% per month, if the payment not receive within stipulated time". The present suit has been instituted on 05.08.2022. The plaintiff has not clarified the interest for the period from 26.02.2022 to 05.08.2022 i.e. the date of filing of the suit, neither has claimed the same, nor has paid the court fees on the same. Section 34 of the Code of Civil Procedure, 1908 deals with award of interest by the Court in suits for money. It reads as follows:
CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 33 of 35"34. Interest (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions."
Section 34 empowers the court to award interest for the period from the date of the suit to the date of the decree and from the date of the decree to the date of payment where the decree is for payment of money.
Section 34 CPC does not empower the court to award pre-suit interest. The pre-suit interest would ordinarily depend on the contract (express or implied) between the parties or some statutory provisions or the mercantile CS(COMM) NO. 422/2022 M/s Options Printofast Vs. Mc Learners Publications Page 34 of 35 usage - Secretary/General Manager, Chennai Central Co-operative Bank Ltd. Vs. S.Kamalaveni Sundaram 2011 (99) A/C 140 (SC).
33. As the plaintiff has not claimed the interest for the period from 26.02.2022 to 05.08.2022 i.e. till the filing of the suit, it seems that the plaintiff has foregone the relief of the interest for the said period. As far as interest pendent-elite and future is concerned, in view of Section 34 of CPC, it is directed that plaintiff shall be entitled to interest @ 12 % per annum on the principal amount of Rs.2,33,481/- from the date of filing of suit till its realisation.
Issue No.(v): Relief
34. In view of the findings on the issue no.1 to 4 and the documents proved on record, the suit of the plaintiff is decreed for a sum of Rs.2,33,481/- (as principal) + Rs.1,78,132.75/- (as interest) = Rs.4,11,613.75/- with cost to the extent of court fees and pendente lite and future interest @ 12% per annum on principal amount of Rs.2,33,481/- w.e.f 05.08.2022, till its realization.
Decree sheet be prepared accordingly.
File be consigned to record room.
ANNOUNCED IN OPEN COURT (Kiran Bansal)
ON 23.12.2023 District Judge, Commercial Court-02
Shahdara, Karkardooma, Delhi/23.12.2023
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