Delhi District Court
Kartar Carriers Pvt Ltd vs Jitender Kumar Suri @ Bubble on 9 May, 2025
DLCT010035472022
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) -01 : CENTRAL, TIS HAZARI COURTS,
DELHI
CS (Com.) No. 705/2022
M/s. Kartar Carriers Pvt. Ltd.,
Through its Director,
S. Harmohinder Singh,
Regd. Office at :
Property No. 3968, Roshanara Road,
Opp. Palace Cinema, Delhi - 110007. ..... Plaintiff.
Versus
1. Sh. Jitender Kumar Soni @ Bubble,
Mobile No. 7982166030.
2. Sh. Ishan Kumar Suri,
Address at : F-803,
Pocket-6, Sector-2,
Rohini, Delhi.
Suit (Com.) No. 705/2022 Page No. 1 of 25
M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
Also at :
Debai Agency,
C/o M/s. Shankar Dass Kohli,
(Debai Agency),
Near Sankat Mochan Mandir,
Railway Road, Debai,
Distt. Bulandshahar - 202393,
Uttar Pradesh. .... Defendants.
Date of institution : 25.02.2022
Date of reserving Judgment : 08.04.2025
Date of decision : 09.05.2025
SUIT FOR RECOVERY OF RS. 5,67,545/-.
JUDGMENT
1. Vide this Judgment, I shall decide the suit filed by the plaintiff against the defendants for recovery of Rs. 5,67,545/- along with interest.
2. The brief facts as stated in the plaint are that:
(i) the plaintiff is a private limited company duly registered with the "Registrar of Companies" engaged in the transport business / logistic carrier and present suit is file through Harmonder Singh Director of the plaintiff company who was authorize to file present suit through board resolution dt.
04.08.2021.
(ii) that plaintiff has made many agents in the form of Suit (Com.) No. 705/2022 Page No. 2 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
agency at different zone, district and State and the defendants i.e. defendant No. 2 being son of defendant No. 1 are jointly one of the agents of plaintiff company which is known as Debai Agency of plaintiff company. It is further stated that the defendants have been provided the area of Debai situated at District Bulandshahar, UP and its nearby Districts by the plaintiff for loading and unloading the transport goods of plaintiff's customers against commission and transport charges for which both defendants have established office at Debai Agency, C/o M/s. Shankar Dass Kohli (Debai Agency) near Sankat Mochan Mandir, Railway Road, Debai, District Bulandshahar, UP.
(iii) that as per the ledger maintained by the plaintiff company defendants have received the total lumpsum amount of Rs. 85,04,500/- tfrom the customers of plaintiff till 28.2.2020 out of which the defendants have only paid the amount of Rs. 79,37,255/- and thus an amount of Rs.
5,67,545/- is due against the defendants since 28.2.2020.
(iv) that the defendants have paid last amount of Rs. 7700/- on 5.2.2020 and thereafter despite sending many letters defendant did not pay the balance amount hence plaintiff sent legal notice dated 15.7.2021 but same received back undelivered with the remark that have left the address of Debai.
(v) that the plaintiff has filed application before the DLSA and non starter report was issued by the DLSA.
Hence the plaintiff has filed the present suit for recovery of Rs. 5,67,545/- along with interest @ 18% per annum till the realization of the principal amount.
Suit (Com.) No. 705/2022 Page No. 3 of 25M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
4. Summons of the suit were sent to both the defendants and defendants have filed their joint written statement. Defendants have denied that Sh. Harmohinder Singh is Director of plaintiff company or that he was authorized to file present suit in the meeting dt. 04.08.2021 held by Board of Directors. It is also denied by the defendants in their written statement that they were running business and known in the name of Debai agency and established office at Debai Agency c/o Ms. Shankar Dass Kohli Near Sankat Mochan Mandir Railway Road, Debai, District Bullandshahar or that they were provided with the area situated at Debai situated at Debai District Bullandshahar for loading unloading of transport goods of plaintiff company against commission and transport charges. It is also denied that defendant have received Rs. 85,04,500/- from customer of plaintiff and / or paid Rs. 79,37,255/- to the plaintiff and thus leaving balance of Rs. 5,67,545/- as per statement of account maintained by the plaintiff. It is stated by defendants that that the suit is not maintainable against them as defendants No. 1 and 2 are neither the proprietor nor partner of alleged firm Debai Agency and they have nothing to do with the said firm and suit has been file on the basis of self generated, procured, unauthentic forged and fabricated documents. It is also denied by the defendants that they received any letters dt. 25.01.2021, 04.07.20, 17.06.20 and legal notice dt. 15.07.2021 sent by plaintiff.
5. It is further stated that the defendants that defendant No. 2 is an IT professional / consultant working in an MNC since July 2013 and from July 2013 to September 2016, the defendant No. 2 was employed at HCL Technologies Ltd. at Noida on full time basis. It is further stated that though the defendant No. 2 resigned from the said MNC and started working at the post of Technical Analysis Analyst at another MNC namely NTT Data which is also situated at Noida and there the defendant No. 2 was employed upto December 2018. Thereafter defendant No. 2 resigned from the said MNC and started working at the Suit (Com.) No. 705/2022 Page No. 4 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. post of App / Cloud Support Senior Analyst in another MNC namely Accenture and was employed at the said MNC upto September 2020. Thereafter again the defendant No. 2 got employed at HCL Technologies Ltd. at Noida on full time basis till now. Defendants have prayed for dismissal of the suit with exemplary costs.
6. Replication was filed by the plaintiff in which the plaintiff has denied contents of the written statement as incorrect and has reiterated the contents of plaint as true and correct.
7. Admission / denial of the documents done in which plaintiff has denied the employment record of defendant No. 2 from the period July to May 2022 whereas defendants have denied all the documents filed by the plaintiff.
8. On the basis of pleadings of the parties, following issues were framed on 28.11.2023 for consideration:-
1. Whether this court has no territorial jurisdiction to entertain the present suit? OPD.
2. Whether the present suit has not been signed, verified and filed by the duly authorized person?
OPD.
3. Whether the defendants have never entered into any kind of business dealings with the plaintiff?
OPD.
4. Whether the plaintiff is entitled to decree for recovery of Rs. 5,67,545/- OPP.
5. Whether the plaintiff is entitled to interest on the aforesaid amount? If so at what rate and for which period? OPP.
6. Relief.
Suit (Com.) No. 705/2022 Page No. 5 of 25M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
9. In order to prove its case, plaintiff has examined two witnesses i.e. its Director Sh. Avneet Singh Bhutani as PW1 and CA Sh. Rajan Bansal as PW2. Both the witnesses were cross examined at length by Ld. Counsel for the defendant.
10. On the other hand, defendants have also examined two witnesses i.e. defendant No. 1 as DW1 and defendant No. 2 has DW2. Both the witnesses were cross examined at length by Ld. Counsel for the plaintiff.
11. Final arguments were heard from Sh. Nitya Sharma, Ld. Counsel for the plaintiff and Sh. Nitish Sharmal, Ld. Counsel for the defendants.
12. I have considered the submissions and have gone through the record. My issue-wise findings are as follows :-
13. First of all, as it would affect the maintainability of the suit, I shall decide issue No. 2.
ISSUE NO. 2.
Whether the present suit has not been signed, verified and filed by the duly authorized person? OPD.
14. The present suit has been filed by the plaintiff through its Director S. Harmohinder Singh who has stated that he was authorized to file the present suit vide board resolution passed by the Board of Directors of plaintiff company on 4.8.2021.
The defendants in the written statement have denied that S. Harmohinder Singh has been authorized in the board resolution dated 4.8.2021. Defendants have denied that Sh. Harmohinder Singh is Director of plaintiff company or that he was authorized to file present suit in the meeting dt. 04.08.2021 held by Board of Directors.
15. In order to prove that S. Harmohinder Singh is the Director of plaintiff company and is authorized to file the present suit, the plaintiff Suit (Com.) No. 705/2022 Page No. 6 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. has examined Sh. Avneet Singh Bhutani, Director of the plaintiff company as PW1. He in his evidence led by way of affidavit Ex. PW1/A has deposed that the plaintiff is a transporter company and he has been authorized by Board of Directors of plaintiff company on 30.8.2024. He has not stated a single line in his evidence affidavit with respect to the authorization of S. Harmohinder Singh as Director vide board resolution dated 4.8.2021. Further on perusal of file I found that though with the plaint, extract of board resolution dated 4.8.2021 was filed which was signed but said extract of board resolution has not been proved by the PW1 in his testimony.
16. As far as another witness examined by plaintiff i.e. PW2 Sh. Rajiv Bansal is concerned, he has not deposed anything with respect to appointment of S. Harmohinder Singh as AR to file the present suit. Hence in these circumstances in my view plaintiff has miserably failed to prove that S. Harmohinder Singh has been authorized by the plaintiff company to file the present suit on behalf of plaintiff in board resolution dated 4.8.2021 however since it is undisputed fact that S. Harmohinder Singh is the Director of plaintiff and further since plaintiff has contested this suit till the hilt and PW1 in his evidence has not deposed that the plaintiff has not authorized S. Harmohinder Sing, Director of plaintiff company to file the suit therefore I held that S. Harmohinder Singh is authorized to file the present suit. Issue No. 2 is decided accordingly in favour of the plaintiff.
ISSUES NO. 1.
Whether this court has no territorial jurisdiction to entertain the present suit? OPD.
17. Section 20 of the Code of Civil Procedure would deal the territorial jurisdiction. Same is reproduced as under :
"Other suits to be instituted where defendants reside or cause of action arises.Suit (Com.) No. 705/2022 Page No. 7 of 25
M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c)The cause of action, wholly or in part, arises".
18. It is not the case of plaintiff that defendant either resides or carry on business within the territorial jurisdiction of this court therefore, sub-clause (a) and (b) of Section 20 CPC is not applicable to present case.
19. As far as sub-clause (c) of Section 20 CPC i.e. "the cause of action, wholly or in part, arises" is concerned, plaintiff in the plaint has averred that the head office of plaintiff is situated within the jurisdiction of this court and defendant has visited and approached with request to give / provide the agency who during the business has visited to head office and made payments on so many occasions, therefore this court has the territorial jurisdiction. Thus this court territorial jurisdiction would depend if plaintiff is able to prove the aforesaid facts and in my view since for this evidence would be require to be appreciated. In my view if plaintiff is able to prove the same then this issue will have jurisdiction and if not then suit of the plaintiff itself would be liable to the dismissed therefore it Suit (Com.) No. 705/2022 Page No. 8 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. would be futile exercise to transfer the case on the ground of lack of territorial jurisdiction. Therefore in this circumstances I hold that this court has territorial jurisdiction to decide the present suit. Issue no.1 decided accordingly.
ISSUE NO. 2Whether the defendants have never entered into any kind of business dealings with the plaintiff?.
20. Plaintiff has examined Sh. Avneet Singh Bhutani / PW1 its Director, who in his evidence led by way of affidavit Ex. PW1/A has deposed that plaintiff company is in transport business and providing transport services and had made many agents in the form of agency at different zone, district and states and further depose that the defendants i.e. defendant no.2 being son of defendant no.1 are one of the agents of the plaintiff company which is known as Debai Agency of company. He further depose that the defendant No. 1 has visited to the head office of plaintiff and requested to provide him agency at Debai at District Bulandshahar, UP. He further depose that they have been provided area of Debai situated at Dist. Bulandshahar UP and its nearby district. plaintiff company and they are running business at District Bulandshahar, UP and has established office at Debai Agency, C/o M/s. Shankar Dass Kohli (Debai Agency), Near Sankat Mochan Mandir, Railway Road, Debai District, Bulandshahar, UP for so many years and . they have received Rs. 8564500/- from the customers of the plaintiff and paid only an amount of Rs. 7937255/- till 28.02.20 and did not pay balance amount despite sending legal notice. He relied upon following documents:
1. Resolution dated 30.8.2024 as Ex. PW1/1.
2. Statement of account / ledger as Ex. PW1/2.
3. Copy of correspondences made by the plaintiff as Suit (Com.) No. 705/2022 Page No. 9 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
Mark PW1/3 (Colly.) .
4. Copy of legal notice dated 15.7.2021 along with postal receipts and tracking reports as Ex. PW1/4 (Colly.).
5. Non starter report as Ex. PW1/5.
6. Handwriting of defendant No. 1 in various documents as Ex. PW1/6A, Ex. PW1/6B and Ex. PW1/6C.
7. Photocopy of banker slips filed by defendant No. 1 bearing original handwriting of defendant No. 1 as Ex. PW1/7 (Colly. 3 slips).
8. Photocopy of statement of account reflecting payment made by defendant as Mark PW1/8 (Colly. 3 pages).
9. Letter of plaintiff's customers as Ex. PW1/9 (Colly.).
10. Carbon copy of receipts / acknowledgments issued by official of plaintiff at the time of receiving payment from defendant as Mark PW1/10 (6 receipts).
11. Affidavit under Section 63 (4) BSA, 2023 as Ex.
PW1/11.
21. Plaintiff has also examined its Chartered Accountant Rajan Bansal as PW2. PW2 through his evidence affidavit Ex. PW2/A has deposed that he is a Chartered Accountant and partner in V.R. Bansal & Associates Chartered Accountant Firm and deposed that he has issued certificate regarding Debai Agency that a sum of Rs. 5,67,545/- is appearing due in the book of accounts of plaintiff company. He filed document i.e. statement of account of plaintiff company maintained by him for the period 1.4.2018 to 28.2.2020 as Ex. PW2/1.
22. On the other hand both the defendants have examined themselves as witness. The defendant No. 1 has examined himself as Suit (Com.) No. 705/2022 Page No. 10 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. DW1 who in his testimony led by way of affidavit Ex. DW1/A has deposed that he and defendant No. 2 are neither proprietor nor partner of alleged firm Debai Agency at any point of time and both have nothing to do with the day to day activity of said alleged agency. Defendants have never approached to the plaintiff and never entered into any kind of business dealing with the plaintiff. He also deposed that all the documents relied upon by the plaintiff are totally wrong, false, bogus and baseless. He denied that both the defendants being trusted partner of plaintiff have established office at Debai Agency, C/o Ms. Shankar Dass Kohli (Debai Agency), Near Sankat Mochan Mandir, Railway Road, Debai, Dist. Bulandshahar since so many years. He further denied that the defendants never received any transport goods as alleged by the plaintiff for the purpose of loading and unloading the transp;ort goods of plaintiff's customers against commission and transport charges. He also deposed that defendant No. 2 is an IT professional / consultant working in an MNC since July 2013 and from July 2013 to September 2016, the defendant No. 2 was employed at HCL Technologies Ltd. at Noida on full time basis. It is further stated that though the defendant No. 2 resigned from the said MNC and started working at the post of Technical Analysis Analyst at another MNC namely NTT Data which is also situated at Noida and there the defendant No. 2 was employed upto December 2018. It is further deposed that thereafter defendant No. 2 resigned from the said MNC and started working at the post of App / Cloud Support Senior Analyst in another MNC namely Accenture and was employed at the said MNC upto September 2020. Thereafter again the defendant No. 2 got employed at HCL Technologies Ltd. at Noida on full time basis till now and he has no concern with any Debai Agency or alleged business with the plaintiff at any point of time.
23. Defendant No. 2 has examined himself as DW2 who in his evidence led by way of affidavit has almost repeated the same contents which have already been deposed by the DW1 in his evidence by way of Suit (Com.) No. 705/2022 Page No. 11 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. affidavit therefore same are not repeated here.
24. It is argued by Ld. Counsel for plaintiff that from the testimony of plaintiff witnesses and documents it is proved that plaintiff has appointed defendants as their agent for doing loading/ unloading of goods booked by its customer at Debai, Bulandshahar for which customer used to pay money to defendants and defendants use to pay the same to plaintiffs and till 28.02.2020 defendants received amount of Rs. 85,64,500/- but paid only Rs. 79,73,255/-. He further argued that though DW1 and DW2 depose that they never resided in Debai but from voter list it is evident that they have resided in Debai hence presumption can be raised against them that they depose falsely that they have not carry business with the name Debai Agency at Bulndhahar as agent of plaintiff.
25. On the other hand Ld. Counsel for defendants have argued that plaintiff except oral testimony of PW1 and PW2 have failed to proved that defendants were plaintiff company agent and were running business at Debai with the name Debai Agency. He further argued that nothing has came out in the cross examination of Defendants to disprove their testimony that they never carry any business at Debai much less as agent of plaintiff.
26. I have heard the submission and gone through the record. Since the defendants have denied in the written statement that they ever appointed as agent by the plaintiff for loading and unloading of the goods for plaintiff customer and carried out business in the name of Debai Agency. Therefore burden is upon the plaintiff to prove that defendants were their agent and done business with them in view Section 104 and 105, 106 and 109 of Bharatiya Sakshya Adhiniyam 2024 (earlier Section 101 and 102 of Indian Evidence Act). Sections 104 and 105 of Bharatiya Sakshya Adhiniyam 2024 are reproduced as under:
"104. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those Suit (Com.) No. 705/2022 Page No. 12 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
105. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B".
27. Whereas Section 106 of Bharatiya Sakshya Adhiniyam 2024 provides that burden of proof of a particular facts on that person who wants courts to believe existence of any particular facts. Section 103 is reproduced as under :-
"106.The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, un- less it is provided by any law that the proof of that fact shall lie on any particular person."
28. But Section 109 of Bharatiya Sakshya Adhiniyam 2024 says that :
Suit (Com.) No. 705/2022 Page No. 13 of 25M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
29. Hon'ble Supreme Court in Raghavamma and another v. A. Chenchamma and another 1964 AIR 136, referring to sections 101 to 103 explained the distinction between burden of proof and onus of proof in the following terms :
"There is an essential distinction between Burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
(16) The burden of proof that lies under Section 101 and that under Section 102 of the Evidence Act is distinguishable :
the former has been described as a "legal" or "persuasive burden" and the latter as the evidential burden or as the "burden of adducing evidence" (Phipson). It is easy enough to say concerning the legal or persuasive burden that it lies on whichever party would fail if no evidence were given on either side or if the allegation to be proved is struck out of the record. But, as Rupert Cross points out "A moment's reflection should suffice to show that these tests arc only applicable to the evidential burden ; they cannot apply to the legal burden in all cases." "As a matter of commonsense", "the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or that prosecutor in criminal proceedings"; it would go to such length as the burden of proof of the assertion still resting upon the plaintiff even "if the assertion of a negative is an Suit (Com.) No. 705/2022 Page No. 14 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.
essential part of the plaintiff's case." (Vide Bowen, L.J. in Abrath v. North Eastern Rail, Co., 1883 Ii Q.B.D. 440 at p. (457 a decision which was affirmed by the House of Lords in (1886) Ii A.C. 247). Cross explains the difficulty which may sometimes arise with regard to the question whether an assertion is essential to a party's case or that of the adversary by referring to the decision of the House of Lords in Joseph Constantine Steamship Line, Lid. v. imperial Smelting Corporation, Ltd. (1942 A.C. 154) (9). In that case the charterer of the ship claimed damages from the owners for failure to load ; the owners pleaded frustration of the contract by reason of the destruction of the ship owing to an explosion. The question of fact for determination was whether the explosion had been caused by the fault of the owner, but the evidence was scanty on this question. The House of Lords held that thc plaintiff had the legal burden of proving default when frustration of the contract was pleaded.
In some cases, as Cross explains, it becomes necessary to ascertain the "legal burden of proof" even after consulting the precedents concerned with the various branches of substantive law. Even greater difficulty arises when the existence or non-existence of any fact in issue may be known for certain by one of the parties and this is often said to have an important bearing on the incident of burden of proof of that fact. Reference in this connection is made by him to R. v. Turner, (1816) 5 m. & S. 206) where the accused was prosecuted for having pheasants and hares in his possession without the necessary qualification or authorisation; ten possible qualifications had been mentioned in the relevant statute. The King's Bench held that it was unnecessary for the Crown to prove that these qualifications did not apply to the case".
30. Now reverting back to the case. Though PW1 In his testimony has deposed that defendant No. 1 approach to the plaintiff office for become agent of plaintiff but in his cross examination he Suit (Com.) No. 705/2022 Page No. 15 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. stated that he does not remember the date, month or year when he came but it was around 10 years ago. He also admitted that he has no document to prove that the defendant has approached to plaintiff to become its delivery agent. It look very unprofessional that plaintiff appointed defendant as his agent who will received the goods send by plaintiff and will collect money from his customers but did not get signed any agreement from him and even did not taken any documents from defendant no.1 about his ownership of Debai Agency or even his identity. He also admitted that he cannot tell the legal status of Debai Agency whether it is proprietorship firm, partnership firm or a company.
PW1 was asked by Ld. Counsel for the defendant to produce the list of its agent during cross examination and he produce the same which was exhibited as PW1/D1. He admitted that no name of defendant No. 1 Jitender Kumar Suri and defendant No. 2 Ishan Suri is mentioned in said station list / agent list Ex. PW1/D1 though he voluntarily deposed that nick name of defendant No. 1 Jitender Kumar Suri i.e. Babble is mentioned here) but he did not file any document that nick name of defendant No. 1 is Bubble nor examine any independent witness or produce document to corroborate his testimony to prove the said fact. It is worthwhile to mention here that in the list address of agency is mentioned as Opposite Kumar Electronics and its does not contain trade name as "Debai Agency" and only mention place as Debai. The address of defendant given in plaint and testimony of PW1 Near Sankat Mochan Mandir, Railway Road is also not mentioned against the name of agency at Debai in the said agent list, which itself create doubt any agency was being run from said place in the name of Debai Agency. Further PW1 admitted that document Ex. PW1/D2 which are 25 carbon copy of goods challans does not bear signatures of defendants. He admitted that on delivery of goods receipts Ex. PW1/D3 which are total 35 receipt, name of Shanker Dass Kohli Transport agent Debai Bulandshahar 202393 UP is mentioned which appear to be issued acknowledging Suit (Com.) No. 705/2022 Page No. 16 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. payments of goods transported, though he says that same is signed by Jitender Kumar Suri but no evidence has been produce that same is signed by defendant no.1. Further if defendant no.1 and defendant no.2 were the agent of plaintiff why receipt would contain name of Shankar Dass Kohli instead of defendant firm or defendants name. Further though he depose that defendant has given address Debai Agency C/o Shankar Das Koli but he did not file any documents that defendants have given the said address. Moreever if Shakar Dass Koli was part of address only, why receipts Ex. PW1/D3 would be issued mentioning Shankar Dass Koli as trade name.
Further though PW1 deposed that the handwriting of defendant No. 1 is on various documents Ex. PW1/6A which appear to some hand written slip containing details of some amounts payment probably send to plaintiff, Ex. PW1/6B an hand note and Ex. PW1/6C hand written slip containing details of some amounts payment probably send to plaintiff but defendant has given suggestion to the PW1 that same is not in the handwriting of defendant No. 1 Jitender Kumar Suri and he deposed that the same is forged and fabricated document. No evidence has been led by plaintiff except oral testimony of DW1. Similarly though the plaintiff has claimed that the bank slips Ex. PW1/7 is in the handwriting of Jitender Kumar Suri but he was given suggestion that the same is in the handwriting of defendant and defendant has not deposited the said amount. But despite this plaintiff did not examine any handwriting expert or led any other evidence to prove that the document Ex. PW1/6A to Ex. PW1/6C and Ex. PW1/7 are in the handwriting of defendant 1 or that amount deposit slips are in handwriting of defendant No. 1 or that the said amount was deposited by the defendant No1.
As far as other documents relied upon by PW1, the PW1 is board resolution same is not relevant for the issue in hand, PW1/2 is ledger/ statement of account same also does not contain any signature or handwriting of defendants thus does not help the plaintiff to prove Suit (Com.) No. 705/2022 Page No. 17 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. that defendant were its agents or ever carried business at Debai, PW1/3 to that same PW1/3 are three letters dt. 25.01.2021, 04.07.2020 and 17.06.20 by on which address to Debai agency but same does not mentioned name of defendants and no documents have been file hoe same were delivered to defendants, no postal receipts has been file, thus does not prove anything against the defendants. PW1 has also relied statement of account of plaintiff bank reflecting payment made by the defendants Mark PW1/8 but on perusal of said statement, I found that he only highlighted three payments as cash entry of payment made by defendants but it only mentioned cash and does not mentioned who deposited the same. Plaintiff has led no evidence that the said payment was made in cash by the defendant. Further plaintiff has allegedly received approx. 79 lakh and there is no explanation how remaining payment is made by defendant. PW1/9 is letter issued by Ganga textiles to plaintiff that its agent has collected cheque no. 011865 of HDFC bank dt. 29.01.2016 but said letter does not prove that said cheque is collected by defendants s letter does not mention name of any of defendants. Mark PW1/10 are 6 carbon copy of appear to be some receipt/ book acknowledging the payment by Debai Agency. But same does not contain name of person who issued the said receipts. No suggestion has been given to either DW1 or to DW2 that same were issued by any of them. Hence same also does not help the plaintiff to prove its case that defendants were agent of plaintiff.
31. Further as per case of plaintiff defendant was its agent and doing loading and unloading of goods for plaintiff transport company customers. But plaintiff in its pleading or PW1 in its evidence affidavit have not depose what commission was agreed which is to be paid to defendant. Though PW1 has depose that rate of commission of transport charges were fixed which were Rs. 528/- per quintle and same were agreed when the defendant visited plaintiff's office but no such document was produced. Further though alleged detail of payment received by Suit (Com.) No. 705/2022 Page No. 18 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. defendant from plaintiff customers and payment made by defendants to plaintiff is given by plaintiff in its pleading and PW1 in its evidence affidavit but no detail of payment given to defendant as commission or in what manner same was paid is given which create doubt that defendants were working as agent of the plaintiff.
32. I found substance in the submission of Ld. Counsel for the defendant that if defendant would have been working as agent of plaintiff then definitely some agreement would have been executed between plaintiff and defendants containing terms and condition of agency. It looks very unlikely that the defendant No. 1 was appointed its agent by plaintiff but plaintiff did not get execute any agreement in writing from the defendant. Plaintiff did not file a single document which proves that defendant has worked as agent of plaintiff. In these circumstances, in my view plaintiff through testimony of PW1 has miserably failed to prove that the defendant was appointed as agent of plaintiff at any time. therefore I held that the plaintiff has failed to prove that the said cash amount was deposited by the defendant into the plaintiff's bank account. Further, the plaintiff has deposed that total transaction which was done by the defendant through his agency was Rs. 85,04,500/- out of which defendant has deposited Rs. 79,37,255/- only but despite such a huge amount of transaction the plaintiff did not file a single document which is in writing which proves that the defendant has worked as agent of plaintiff and involved in the loading and uploading of the goods booked by the plaintiff for its customers. Further plaintiff has not filed its balance sheet and income tax return to prove that payments as shown in ledger/ statement of account EXPW1/2 was received from defendant as business income, neither plaintiff filed any GR challan with respect to the dealing of goods by defendant for such a huge amount of Rs. 85,04,500/-. In these circumstances, I do not find testimony of PW1 reliable.
33. As far as testimony of PW2 is concerned, he only proved Suit (Com.) No. 705/2022 Page No. 19 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. certify the balance in the book of account of plaintiff company for the period 1.4.2016 to 31.03.2020 as Ex. PW2/1. Thus same is mere extract. From his testimony, it is evident that he has not deposed that he has personally met with Jitender Kumar Suri or seen any document in which it is mentioned that the Jitender Kumar Suri has taken any agency or has any concern with Debai Agency. Hence mere writing Jitender Kumar Suri in said statement does not prove that the defendant no.1 is the agent of plaintiff.
34. He also rely upon statement of account EXPW1/2 but said statement does not bear any signature of PW2 or his company. Hence Same is not a statement of account audited by him or his CA firm. He has not depose same was prepared by him. Therefore in these circumstances, I hold that the plaintiff through the testimonies of PW1 and PW2 has failed to prove that the defendant No. 1 Jitender Kumar Suri came to the head office of plaintiff or that he or his son defendant No. 2 was appointed as agent by the plaintiff or that they have any concern with the firm Debai Agency or that that they carried the business with plaintiff.
35. As far as testimony of defendants is concerned, both the defendants have examined themselves as witness. Before analyzing their testimony, I would like to say that their evidence affidavit are nothing but the reproduction of their written statement and even legal maxim which an ordinary person would even be not aware with meaning of the same, therefore said kind of reproduction of pleadings while in evidence affidavits need to crtiticised and Ld. Counsel for defendant is advised to be careful in future.
36. The defendant No. 1 has examined himself as DW1 and in his testimony he has specifically depose that he and defendant No. 2 are neither proprietor nor partner of alleged firm Debai Agency at any point of time and both have nothing to do with the day to day activity of Suit (Com.) No. 705/2022 Page No. 20 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. said alleged agency. Defendants have never approached to the plaintiff and never entered into any kind of business dealing with the plaintiff. He also deposed that all the documents relied upon by the plaintiff are totally wrong, false, bogus and baseless. He denied that both the defendants being trusted partner of plaintiff have established office at Debai Agency, C/o Ms. Shankar Dass Kohli (Debai Agency), Near Sankat Mochan Mandir, Railway Road, Debai, Dist. Bulandshahar since so many years. He further denied that the defendants never received any transport goods as alleged by the plaintiff for the purpose of loading and unloading the transp;ort goods of plaintiff's customers against commission and transport charges. He also deposed that defendant No. 2 is an IT professional / consultant working in an MNC since July 2013 and from July 2013 to September 2016, the defendant No. 2 was employed at HCL Technologies Ltd. at Noida on full time basis. It is further stated that though the defendant No. 2 resigned from the said MNC and started working at the post of Technical Analysis Analyst at another MNC namely NTT Data which is also situated at Noida and there the defendant No. 2 was employed upto December 2018. It is further deposed that thereafter defendant No. 2 resigned from the said MNC and started working at the post of App / Cloud Support Senior Analyst in another MNC namely Accenture and was employed at the said MNC upto September 2020. Thereafter again the defendant No. 2 got employed at HCL Technologies Ltd. at Noida on full time basis till now and he has no concern with any Debai Agency or alleged business with the plaintiff at any point of time.
37. In his cross examination, he deposed that he resides at flat No. 803, Pocket-6, Sector-2, Rohini at present for last 12-13 years. Prior to this, he resided in Jhilmil Colony, Delhi for 30-35 years. His voter card and aadhar card is of address of 803, Sector-2, Rohini. He also deposed that at present, he is not doing any work for earning. He denied the suggestion that he used to talk to Kartar Carrier on its mobile numbers :
9810098997 and 9910128595 from their mobile numbers : 7982166030, Suit (Com.) No. 705/2022 Page No. 21 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. 9013007649 and 9675873412. He also denied that the bank slips Ex. PW1/7 (Colly.) were in his handwriting or having his signatures. He also denied that Ex. PW1/6A which appears to be rough slip (कच्ची पर्ची) regarding settlement of account between plaintiff and defendant and Ex. PW1/6B is some handwritten slip (कच्ची पर्ची) which is again some receipt regarding some settlement of account. He was shown photocopy of one letter allegedly written by him to Kartar Carriers which is Mark DW1/X1 but he denied the suggestion that letter Mark DW1/PX1 was written by him or his son to Kartar Carriers. He also denied the suggestion that bank slips Ex. PW1/7 (Collly.) are in his handwriting or bear his signatures. Thus on perusal of testimony of DW1, I found that nothing has come out in his cross examination in favour of the plaintiff to prove that the defendant No. 1 Jitender Kumar Suri has approached the plaintiff company at its head office at Delhi to become its agent for loading and unloading of the goods or that he has ever carried out any business transaction for loading or unloading of the goods as agent of the plaintiff at Debai, Bulandshahar with the name Debai Agency.
38. Defendant No. 2 has examined himself as DW2 who in his evidence led by way of affidavit has almost repeated the same contents which have already been deposed by the DW1 in his evidence by way of affidavit therefore same are not repeated here.
39. In his cross examination, he also deposed that he resides at 803, Pocket-6, Sector-2, Rohini along with his family members. He denied the suggestion that he has sold the said property to one Sumit Sehgal and voluntarily deposed that he cannot sell the same as he is not the owner of the said property. He deposed that his father is not doing any job as he is retired since about 15 -16 years. He has taken his primary education from Govt. Co-Ed Sr. Sec. School, Sector-2, Rohini. He deposed that he and his family members have never resided in Debai, Bulandsheher. He denied the suggestion that he has ever studied in Rajni Public School at Debai, Bulandsheher. He deposed that he and Suit (Com.) No. 705/2022 Page No. 22 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. his family members have voter card and Aadhar card of aforesaid Delhi address. He denied the suggestion that the name of Raman Suri shown at Sr. No. 1123 of voter list Ex. DW2/P1 is of his mother and voluntarily deposed that his mother's name is not Raman Suri but his mother's name is Suman Suri. He also denied the suggestion that the photograph on the said voter list is of his mother. He deposed that the photograph at Sr. No. 1122 is appeared to be of his father but he is not sure as same is not clear. He admitted that the name on the said Sr. Number is of his father and Ram Prakash is the name of his grandfather. He denied the suggestion that he and defendant No. 1 wind up their business from Debai, Bulandsheher and came to Rohini. Thus, on perusal of testimony of DW2 also, I found that nothing much has come out in his testimony in favour of the plaintiff which led to prove that defendants No. 1 and 2 taken agency from plaintiff for loading and unloading of its goods or carried out business as agent of plaintiff at Debai with the name Debai Agency.
40. As far as contention of Ld. Counsel for the plaintiff that from voter list Ex. DW2/1 which contains the name of defendant No. 1 proves that the defendant has resided at Delhi and has deposed falsely. In my view, even if I presume that the defendants have depose falsely that they have not resided at Debai, same does not led to presumption that their entire testimony is false and need to by ignored. The Latin Maxim of "Falsus In Uno, Falsus In Omnibus" is not applicable in Indian Law. In my view it is the plaintiff who has to prove its case but from the plaintiff's testimonies itself it is evident that he has not file any document to prove that plaintiff appointed defendants its agent. It is also very strange that Crores of Rupees business has been allegedly done by the plaintiff with the defendants but not a single documentary transaction has been prove by defendant from which it could be inferred that any amount has been collected by defendants from the customer of plaintiff or that any payment by way of cheque or bank transfer has been made by defendants to plaintiff from their bank accounts or any commission was paid by plaintiff to defendant through such bank transferred. Therefore in these circumstances Suit (Com.) No. 705/2022 Page No. 23 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. I held that the plaintiff has miserably failed to prove its case that defendant No. 1 Jitender Kumar Suri has approached the plaintiff company at its head office at Delhi to become its agent for loading and unloading of the goods or that he has ever carried out any business transaction for loading or unloading of the goods as agent of the plaintiff at Debai, Bulandshahar with the name Debai Agency. Therefore I decide issues No. 3 against the plaintiff and in favour of the defendants.
ISSUES NO. 4 & 5.
Whether the plaintiff is entitled to decree for recovery of Rs. 5,67,545/- OPP.
AND Whether the plaintiff is entitled to interest on the aforesaid amount? If so at what rate and for which period? OPP.
41. In view of my findings on issues No. 1 and 3, since the plaintiff has failed to prove that it has any business dealings with defendants therefore plaintiff is not entitled to recover any amount from the defendants. Even otherwise since plaintiff except self prepared statement of account / ledger Ex. PW1/2 did not produce any other evidence that defendants have collected Rs. 85,04,500/- from the plaintiff's customers or paid any amount of Rs. 79,73,255/- to plaintiff. The ledger statement Ex. PW1/2 is also not the financial yearwise statement but it is consolidated statement for the period 1.4.2015 to 5.8.2021, hence it appears that the same was prepared for this case only. Otherwise ledger statements are maintained financial yearwise and the at the end of financial year, it get confirmed from the other party and carry forward is the next financial year. Therefore said ledger statement itself does not prove that defendants owe the amount shown in said ledger. No document has been filed on what basis entries in said statement was recorded in income tax returns / balance sheet of plaintiff company submitted with income tax department that defendant was Suit (Com.) No. 705/2022 Page No. 24 of 25 M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr. shown as sundry debtor from year 2014-15 to 2021-22. Further, no balance confirmation taken from defendants every year has been filed. Even otherwise, in my view from mere statement of account Ex. PW1/2 and Ex. PW2/1, it is not proved that defendants owe a sum of Rs. 5,67,545/-. Hence in these circumstances I held that plaintiff has failed to prove that defendants are liable to pay any amount much less Rs. 5,67,545/- to the plaintiff.
42. As far as interest is concerned, when the plaintiff is not entitled to recover any amount from the defendants, no question of grant of interest arises. Hence, issues No. 4 and 5 are decided against the plaintiff and in favour of the defendants.
43. RELIEF.
In view of my findings on aforesaid issues, I held that plaintiff is not entitled to recover any amount from the defendants and the suit of the plaintiff is hereby dismissed with costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Kumar Aggarwal)
on 09.05.2025 DJ (Commercial)-01, Central,
THC/Delhi / 09.05.2025
Digitally signed
by SANJEEV
SANJEEV KUMAR
KUMAR AGGARWAL
AGGARWAL Date:
2025.05.09
17:35:21 +0530
Suit (Com.) No. 705/2022 Page No. 25 of 25
M/s. Kartar Carriers Pvt. Ltd. VS. Jitender Kumar Soni @ Bubble & Anr.