Delhi District Court
Sh. Rohit Kumar vs Mr. Sunil Tyagi on 10 February, 2022
IN THE COURT OF MS. NEHA GARG
CIVIL JUDGE-01, CENTRAL DISTRICT, TIS HAZARI
COURTS/DELHI
CS SCJ No.596567/2016
CNR No:-DLCT03-000948-2014
Sh. Rohit Kumar
Prop. of Om Jay International
Off: 11736, Sat Nagar,
Gali No.4, Opp. Tank Road,
Karol Bagh, Delhi-110005. .....Plaintiff
Versus
Mr. Sunil Tyagi
Prop. of M/s Fouster Denim
H. No.10186, Gali No.1,
West Gorak Park,
Shahadra, Delhi. ....Defendant
Date of Institution : 30.04.2014
Date on which judgment was reserved: 24.01.2022
Date of pronouncement of Judgment : 10.02.2022
SUIT FOR RECOVERY OF RS. 2,28,129/- along with Pendentelite
and Future interest.
NEHA Digitally signed
by NEHA GARG
GARG
CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 1 of 23 Date: 2022.02.10
10:42:21 +05'30'
JUDGMENT
1. The present suit has been filed for recovery of Rs. 2,28,129/- along with pendente lite and future interest. The brief facts as averred in the plaint are that plaintiff is the proprietor of M/s Om Jay International and is a whole seller of ready-made fabrics and runs his business from the above stated address. That defendant is proprietor of M/s Fouster Denim, who was a regular customer of plaintiff and purchased ready- made fabrics and used to sell the same.
It is the case of plaintiff that defendant approached the plaintiff at its Delhi office and requested him to supply the ready-made fabrics as per his requirements and specifications. That defendant had been placing orders from time to time upon the plaintiff at Delhi for supplying the ready-made fabrics and in pursuant of the orders of defendant, plaintiff had been supplying the fabrics to the defendant as per his requirements and specifications from time to time. That plaintiff maintained the accounts of proper course of its business and has also been maintaining the accounts of the defendant. That amount of supplied ready-made fabrics was being properly debited and the amount of payment as made by defendant from time to time to the plaintiff was being properly credited in the said account of the defendant. That in accordance to the orders placed by the defendant, the plaintiff supplied the ready-made fabrics to the defendant as per his requirements and specifications and accordingly raised the invoice of material supplied to the defendant. That after receiving the delivery of the materials, defendant did not make any complaint with regard to the quality and quantity of the materials to the CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 2 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:42:39 +05'30' plaintiff at any point of time and even till date. That however defendant had failed to make the payment of Rs. 1,83,975/- towards the said supply of the ready-made fabrics to the plaintiff, despite repeated requests and demands of the plaintiff. That as per statement of account, an amount of Rs. 1,83,975/- is still due and outstanding against the defendant. That plaintiff has also issued legal notice dated 18.02.2014 vide registered post, calling upon the defendant to pay the outstanding amount of Rs. 1,83,975/- and interest accrued upon the said principal amount after the one month of last invoice raised to till date of filing of present suit amounting to Rs. 44,154/- as per terms and conditions agreed. That defendant has withheld the amount of Rs. 183,975/- of the plaintiff. That defendant is liable to pay interest @ 12% per annum on the said outstanding amount. Hence the present suit.
2. Summons of the suit were issued to the defendant by the Ld. Predecessor of this Court upon which the defendant had put his appearance and thereafter the matter was listed for filing of written statement on behalf of defendant.
3. Written statement was filed on behalf of defendant wherein it is stated that the present suit has been filed with malafide intention in order to harass and humiliate the defendant and to extract money from the defendant. That the suit is not maintainable and liable to be dismissed. That plaintiff has not come to court with clean hands and has concealed the material facts from the Court. That plaintiff as not mentioned the CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 3 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:42:48 +05'30' date, month and year of alleged business transaction with defendant in his whole plaint. That the defendant has stopped the business dealing with the plaintiff due to which the plaintiff has manipulated the bills/invoices against the defendant to extract money despite the fact that no such due is pending against defendant after 2012. That since the dealing between the plaintiff and defendant, whenever defendant made payment to the plaintiff and his employees in cash also, the plaintiff intentionally and with malafide intention has not issued any receipt against the amount paid by the defendant during the course of business and for the same reason, the plaintiff just to extort money from the defendant has filed the present false suit. That the plaintiff has filed false delivery challans with the plaint which clearly reflects that no address where the goods have been supplied, however, has been mentioned in the delivery challan, there is no such shop was being run by the defendant in the year 2012 at Gandhi Nagar, Delhi. That the present suit is misconceived, false and frivolous. That the present suit is without any legal, binding or subsisting cause of action and the present suit deserves to be dismissed u/O 7 Rule 11 CPC. That as per Section 20 of CPC, this court has no territorial jurisdiction to entertain the present suit as the goods have been allegedly delivered at Sahahdara District and the bill amount has been paid by the defendant at Shahadara District. That defendant resides and work for gain at Shahadara. That the plaintiff is a habitual litigant and has also filed the false suit against other parties. That is denied that the defendant approached the plaintiff at Delhi office and requested the plaintiff to supply the ready-made fabrics as per his CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 4 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:42:57 +05'30' specifications and requirements. That the plaintiff has approached the defendant at his office situated at Shahadara and the defendant time and again placed the order with the plaintiff. That the plaintiff has intentionally not mentioned on what date and year, the order was placed. That it is denied that defendant had been placing orders from time to time upon the plaintiff at Delhi for supplying the ready-made fabrics and in pursuant to the orders of the defendant, the plaintiff as been supplying the fabrics to the defendant as per his requirements and specifications from time to time for which the plaintiff had been raising invoices upon the defendant from time to time. That it is denied that the amount of supplied ready-made fabrics was being properly debited and the amount of payment as made by the defendant from time to time to the plaintiff was being properly credited in the said account of the defendant. That the plaintiff has not mentioned the particular place, where the orders were placed, in fact the order was placed at the office of the defendant situated at Shahadara. That plaintiff has not mentioned in his whole plaint the bill/invoice against which the plaintiff is claiming the suit amount and how the payment was made by the defendant. That whenever the bill was raised by plaintiff, the defendant made the payment to the plaintiff in cash as well as through cheque but the plaintiff intentionally and deliberately has not issued any receipt against the paid amount. That the ledger account is forged and fabricated, which does not reflect the whole payment made by the defendant in the year 2012. That in the year 2012 the defendant itself had made the payment against the said bill in cash and due to this reason, the plaintiff remained CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 5 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:43:07 +05'30' silent for two years. That intention of plaintiff became dishonest and has raised a false claim against the defendant despite the fact that defendant has made the entire payment. That it is denied that after receiving the delivery of the material the defendant did not make any complaint with regard to the quality and quantity of the material to the plaintiff at any point of time and even till date. That before sending the legal notice the plaintiff remained silent for about two years as he never demanded and requested the defendant regarding any dues. That the plaintiff has not credited the amount because the payment was made by the defendant in cash to the employee of the plaintiff, who delivered the goods to the defendant. That the statement of account is forged and fabricated and manipulated by the plaintiff which does not reflect the amount paid by the defendant in cash. That the legal notice was duly replied by the defendant and there is no due upon the defendant hence the question of any dues and interest thereupon does not arise.
4. Vide order dated 21.05.2018, following issues were framed in the present matter by Ld. Predecessor of this Court:-
1. Whether the plaintiff is entitled to recovery of sum of Rs. 2,28,129/- along with pendentelite and future interest, as prayed for?OPP
2. Relief
5. Thereafter, matter was listed for record of evidence of plaintiff. Plaintiff in order to prove his case, got examined himself as PW-1.
Digitally signed by NEHA GARGCS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 6 of 23 NEHA GARG Date: 2022.02.10 10:43:16 +05'30' Evidence
6. PW-1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:-
(I) Mark A,B,C,D : Carbon copies of two invoices and two delivery challans bearing signatures of defendant at point X and Y. (II) Ex.PW1/2 : Copy of ledger account running into two pages.
(III) Mark E : Copy of legal notice dated
18.02.2014.
(IV) Ex.PW1/4 : Postal receipt
(V) Ex.PW1/5 : Certificate u/S 65B of Indian
Evidence Act.
PW-1 was examined at length. Thereafter, vide his separately recorded statement, PE was closed and the matter was listed for recording of defendant's evidence.
7. It is pertinent to mention that vide order dated 21.09.2021 the right of defendant to lead is evidence was closed as despite repeated opportunities no affidavit of evidence of defendant's witness was filed by the defendant. Thereafter the matter was fixed for final arguments.
8. I have heard the arguments of Ld. Counsel for the parties and carefully perused the record of the present case.
CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 7 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:43:26 +05'30' Issuewise findings:-
ISSUE No.1 "Whether the plaintiff is entitled to recovery of sum of Rs. 2,28,129/- along with pendentelite and future interest, as prayed for?OPP"
9. The onus to prove the present issue is on plaintiff. It is the case of plaintiff that defendant has been placing orders from time to time upon the plaintiff and that plaintiff has been supplying the fabric to the defendant as per his requirements and specifications and has been raising invoices on the defendant from time to time. That defendant has failed to make the payment of Rs.1,83,975/- towards the supply of readymade garments. In order to prove his case, plaintiff has filed on record the carbon copy of two invoices (Mark A and Mark B) and two delivery challans bearing signatures of defendant at point X and Y (Mark C and Mark D). Plaintiff has also sent a legal notice dated 18.02.2014 and the same is exhibited as Mark E.
10. Ld. Counsel for plaintiff has argued that defendant has not denied the invoices bearing No. 1427 and 1428 i.e., mark A and B respectively in his reply to legal notice sent by the plaintiff. That since both the invoices have been admitted by the defendant, therefore, the case of CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 8 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:43:35 +05'30' plaintiff stood proved as the recovery is of the amount of these two invoices in question.
11. It is pertinent to mention here that though reply of the defendant to legal notice dated 18.02.2014 has been filed by the plaintiff along with the plaint, however, neither the same finds any mention in the plaint nor it has been relied by plaintiff in his affidavit of evidence Ex.PW1/A. Therefore, reply of the defendant to legal notice dated 18.02.2014 is not part of the evidence of the present case. Defendant has averred in his written statement that plaintiff has manipulated the bills/invoices against the defendant to extract money despite the fact that no due is pending against the defendant after 2012. That the plaintiff has filed false delivery challans with the plaint as is clear from the fact that no address is mentioned in the delivery challans.
12. It is pertinent to mention here that defendant has not denied his signatures at point X and Y on delivery challans exhibited as Mark C and D. It is not the case of defendant that delivery challans do not bear his signatures at points X and Y. Therefore, the defendant is deemed to have admitted the delivery challans in question. Furthermore, it is not the case of the defendant that goods in pursuance of invoices exhibit Mark A and B were not received by the defendant. Defendant has merely stated that the invoices in question are manipulated by the plaintiff. Defendant has failed to point out on what basis he is claiming that the invoices are manipulated i.e., whether the description of the goods mentioned in the CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 9 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:43:46 +05'30' invoice is not correct or the amount so mentioned is manipulated or whether the invoice is question was raised without there being any such transaction between the parties. Merely stating that the invoices are manipulated without giving particulars of manipulation alleged is not sufficient and accordingly, as per provisions of Order VIII Rule 3 and 5 of CPC, defendant is deemed to have admitted the invoices exhibit Mark A and B.
13. Now coming to the other aspect of the matter, plaintiff has relied upon copy of ledger account of defendant maintained by him in regular course of his business as Ex.PW1/2. Ld. Counsel for defendant has argued that ledger account (Ex.PW1/2) maintained by plaintiff is not proper and is fabricated as the same does not show entry with respect to payment made by cash to plaintiff for the invoices in question. It is argued by Ld. Counsel for defendant that plaintiff has admitted in his cross-examination that accounts book were being maintained in the Tally software and that in Tally software on any date when the entries are made in the accounts book, the accounting entries of 2 to 3 days prior to the date on which the entry was made for the date on which the related transaction/entry pertaining thereto. Ld. Counsel for defendant has further argued that plaintiff has admitted in his cross examination that in case of cash entry, no separate receipt is issued by plaintiff. Ld. Counsel for defendant has submitted that since plaintiff has himself admitted that he did not issue any separate receipt for cash entry and he has further admitted that the entries in the tally software contained entries of 2 to 3 CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 10 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:43:55 +05'30' days prior to the date on which the entries were actually entered into tally software, it is sufficiently established that the statement of accounts Ex.PW1/2 is fabricated. Ld. Counsel for defendant has also argued that plaintiff has not filed any certificate under Section 65B of The Indian Evidence Act, 1872 in support of the statement of account Ex.PW1/2 and hence, the same is not admissible in evidence.
14. The plaintiff in order to prove his case has placed on record computer generated ledger account prepared by plaintiff of defendant, showing the amount of two invoices being debited into the ledger account on 05.05.2012. It is pertinent to state in here that Section 34 of The Indian Evidence Act, 1872 (herein after referred to as 'the Evidence Act') states that statement of book of accounts is relevant evidence but it is not alone sufficient to charge person with liability. Scope of Section 34, of Indian Evidence Act is further observed by Hon'ble Apex Court in CBI v. V.C. Shukla, (1998) 3 SCC 410:-
"16. To appreciate the contentions raised before us by the learned counsel for the parties it will be necessary at this stage to refer to the material provisions of the Act. Section 3 declares that a fact is relevant to another when it is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of facts; and those provisions are to be found in Sections 6 to 55 appearing in Chapter II. Section 5, with which Chapter II opens, expressly provides that evidence may be CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 11 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:44:04 +05'30' given in any suit or proceeding of the existence or non- existence of every fact in issue and the facts declared relevant in the aforesaid sections, and of no others. Section 34 of the Act reads as under:
"34. Entries in books of account when relevant.--Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
17. From a plain reading of the section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 12 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:44:14 +05'30' section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed."
Hon'ble Apex Court has further observed:
"34. The rationale behind admissibility of parties' books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection give them in a sufficient degree a probability of trustworthiness (Wigmore on Evidence, § 1546). Since, however, an element of self-interest and partisanship of the entrant to make a person -- behind whose back and without whose knowledge the entry is made -- liable cannot be ruled out the additional safeguard of insistence upon other independent evidence to fasten him with such liability, has been provided for in Section 34 by incorporating the words "such statements shall not alone be sufficient to charge any person with liability".
15. Statement of plaintiff in his cross-examination as to when the entries of a particular transaction were made in the Tally software and that ledger account was not audited by auditors goes to the probative value of the ledger account Ex.PW1/2. However, before dwelling into the probative value of the ledger account Ex.PW1/2, it becomes important to examine the admissibility of ledger account Ex.PW1/2.
NEHA Digitally signed by NEHA GARG GARG CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 13 of 23 Date: 2022.02.10 10:44:24 +05'30' Though while tendering his affidavit of evidence Ex.PW1/A, plaintiff has relied on the certificate under Section 65B of the Evidence Act, which is not mentioned in the affidavit of evidence, as Ex.PW1/5, however, no certificate under Section 65B of the Evidence Act or Ex.PW1/5 is traceable in judicial file. It is pertinent to state in here that plaintiff has not filed mandatory certificate under section 65-B of the Evidence Act along with the computerized generated statement of accounts. In this regard it would be gainful to state in here observations made by Hon'ble Apex court Anvar P.V v. P.K Basheer and others 2014 SCC online SC 732:-
"5.......Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, Digitally signed CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 14 of 23 NEHA GARG by NEHA GARG Date: 2022.02.10 10:44:34 +05'30' i.e, electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv)The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 15 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:44:44 +05'30' Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
6. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 16 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:44:55 +05'30' safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
7. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
16. Considering the facts and law discussed above, as plaintiff has failed to file mandatory certificate under section 65B of Indian Evidence Act,1872 ledger account Ex.PW1/2 so relied upon by the plaintiff cannot be read in evidence.
17. It is the case of the defendant that no due is pending against the defendant after 2012. That plaintiff in his whole plaint has not mentioned the bill/invoice for which he has filed the present suit. That whenever CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 17 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:45:07 +05'30' bill was raised by the plaintiff, he made the payment to the plaintiff in cash as well as through cheque but the plaintiff has intentionally not issued any receipt against the paid amount.
18. First and foremost, plaint was accompanied by the bills/invoices in question and plaintiff has claimed the recovery of the exact amount for the bills/invoices filed on record. Therefore, it cannot be said that it is not clear for which invoices/bills the present suit is filed. Secondly, excerpts from paragraph 5-7 of reply on merits of written statement reads as follows:
'It is submitted that in the year 2012, the defendant itself has made payment against the said bill in cash and due to this reason, the plaintiff remained silent for two years.' The aforesaid submission of the defendant clearly establishes that defendant is well aware that the present suit is with respect to invoices exhibited Mark A and B. In fact, in the legal notice Mark E also, it has clearly been mentioned that defendant has not paid against the invoice no.1427 and 1428 dated 05.05.2012.
19. It is the case of defendant that in the year 2012, the defendant himself has made the payment against the bills in question in cash but plaintiff has not intentionally and deliberately credited the amount in the ledger account Ex.PW1/2. A party who asserts the facts must prove the same. Defendant has failed to mention the date on which the payment was made in cash to the plaintiff. In para 5 and 7 of reply on merits of CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 18 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:45:18 +05'30' written statement, defendant has mentioned that payment in cash was made to plaintiff whereas in para 9 of reply on merits of written statement, defendant has mentioned the payment was made by defendant in cash to the employee of the plaintiff, who had delivered the goods to the defendant. Defendant has taken contradictory stand in his written statement whereby at one place he has stated that the payment was made in cash to plaintiff and on the other hand it is stated that payment was made to the employee of the plaintiff. Furthermore, defendant has failed to state the name of that employee of the plaintiff to whom the payment was made by him. These material contradictions in the written statement does not lend any strength to the averments of the defendant that payment in cash with respect to the invoices in question has been made to the plaintiff. Defendant has not led any independent evidence to prove that payment in cash was made to the plaintiff in respect of the invoices/bills in question. Merely because no cash receipt was issued by the plaintiff, does not establish that defendant has made cash payment in discharge of the liability towards the invoices in question. Also, the fact that suit was filed two years after the invoices in question were raised, is not a sufficient ground to lead to the presumption that plaintiff has set up a false claim. Plaintiff has specifically averred in the plaint that there has been continuous dealings between the parties and that repeated requests and reminders were served on the defendant to clear the outstanding amount. In cases of regular commercial transactions between parties, it is but natural for a party to wait before taking recourse to legal proceedings to recover the amount. Therefore, no adverse inference can CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 19 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:45:30 +05'30' be drawn against the plaintiff for filing the present suit two years after the invoices were raised so long the present suit has been filed within the period of limitation. It was for defendant to prove by leading some positive evidence that payment in cash in respect to the invoices in question has been made to the plaintiff. Defendant has failed to discharge the onus of prove that cash payment in discharge of liability for the invoices in question has been made to the plaintiff.
20. Defendant has not even stepped into the witness box to lead rebuttal evidence which in turn implies that defendant has admitted the case of the plaintiff. Whereas, plaintiff has established that he is entitled to recovery of principal amount of Rs.1,83,975/- by leading clear and cogent evidence by placing reliance on invoices exhibited Mark A and B and delivery challans exhibited Mark C and D which bears the signatures of the defendant at point X and Y.
21. Plaintiff has claimed interest @18% per annum on the principal amount after one month of the invoice till the filing of the present suit and has further claimed pendente lite and future interest @12% per annum. The invoices in question does not provide for any interest to be charged on the amount. Interest can be claimed by a party in certain eventuality such as where agreement between the parties contains the provision for levy of such interest, secondly on the basis of statute and thirdly on the basis of equity circumstances.
NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 20 of 23 10:45:42 +05'30'
22. Question whether interest can be granted in the absence of any agreement between the parties has been dealt by the Hon'ble High Court of Delhi in Ramesh Chander vs M/s Shiv Infra Promoters Pvt Ltd RFA No. 211/2017 dated 21.08.2018 wherein it has been held as under: "no doubt there is no agreement between the parties, but counsel for appellant/plaintiff rightly relies upon para 20 of the judgment of Hon'ble Supreme Court of India in case of South Eastern Coal Fields Ltd vs State of MP and others (2003) 8 SCC 648 and which holds that interest is payable in equity in certain circumstances. This para 21 of the case South Eastern Coal Fields Ltd vs State of MP and others(supra) reads as under:-"21. Interest is also payable in equity in certain circumstances. The rule in equity is that interest is payable even in the absence of custom to that effect though subject, of course, to a contrary agreement. Interest in equity has been held to be payable on the market rate even though the deed contains no mention of interest. Applicability of the rule to award interest in equity is attracted on the existence of a state of circumstances being established which justify the exercise of such equitable jurisdiction and such circumstances can be many".
23. Section 34 of CPC provides that Court may, in a decree for payment of money, order interest on the principal sum adjudged for any period prior to institution of the suit and from the date of institution of the suit to the date of the decree, as the Court deems reasonable. Further Section 34 of CPC provides that Court may order future interest at such rate not exceeding 6% per annum and for liability arising out of a CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 21 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:45:54 +05'30' commercial transaction, Court may order future interest exceeding 6% per annum but not exceeding the contractual rate of interest and if there is no contractual rate of interest, at the rate on which nationalized bank advance loans.
24. Plaintiff has also claimed interest for the period prior to filing of the present suit. Since there is no agreement between the parties with respect to pre suit interest and there has been a considerable delay from the date of the invoice in filing the present suit, therefore, this Court does not deem it equitable to grant any interest for the period prior to the filing of the present suit. Pendente lite and future interest claimed by plaintiff @12% per annum appears to be too exorbitant and it would be in the interest of justice if interest @7% per annum on the principal amount is awarded in favour of the plaintiff from the date of filing of the present suit till its realization. In light of the above discussion, the present issue is decided in favour of the plaintiff and against defendant and plaintiff is held entitle to recovery of sum of 1,83,975/- along with interest @7% per annum from the date of the filing of the present suit it its realization.
RELIEF:-
25. Present suit is decreed in favour of the plaintiff and against the defendant and plaintiff is held entitle to recovery of sum of 1,83,975/- along with interest @7% per annum from the date of the filing of the present suit it its realization.
CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 22 of 23 NEHA Digitally signed by NEHA GARG GARG Date: 2022.02.10 10:46:05 +05'30' Costs of the suit are awarded in favour of the plaintiff to be paid by defendant.
Decree sheet be prepared accordingly.
File be consigned to the record room after necessary compliance.
NEHA Digitally signed
by NEHA GARG
GARG Date: 2022.02.10
10:47:11 +05'30'
Announced in the open Court (Neha Garg)
on this 10.02.2022 Civil Judge-01/Central,
Tis Hazari Courts/Delhi
CS SCJ No:-596567/2016 Rohit Kumar vs Sunil Tyagi page 23 of 23