Delhi District Court
Smt. Manju Garg vs Mr. Ratnesh Kumar Mishra on 21 August, 2024
IN THE COURT OF SH. AMIT BANSAL
DISTRICT JUDGE (COMMERCIAL COURT)-03
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI.
CS (COMM) 160/2023
CNR No. DLSW01-003163-2023
Smt. Manju Garg
Proprietor of M/s Jai Maa Bhramari Timber
Having its office at Plot At Khara No. 637
Portion of Ground Floor, Near Metro Pillar No. 507
Village Mundka, Delhi-110041.
Mob.: 9811052892.
.....Plaintiff
VERSUS
Mr. Ratnesh Kumar Mishra
Proprietor of M/s S.M.Timber
Having its office at Plot No. C-15/16/2
Hastsal Vihar, Uttam Nagar
New Delhi-110059.
Also At:
Plot No. 58, Om Vihar
Phase-I, Uttam Nagar
Delhi-110059.
Mob.: 9212358216
.......Defendant
Date of Institution : 01.04.2023
Date of final arguments : 12.08.2024
Date of decision : 21.08.2024
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 1 of 38
JUDGMENT
1. The present suit for recovery of Rs. 14,65,192/- (Rupees fourteen lakh sixty five thousand one hundred ninety two only) along with pendente lite and future interest @ 18.00% per annum on the principal amount and the costs of the suit was filed by the plaintiff and against the defendant.
2. The plaintiff's case in nut shell as averred in the plaint is to the effect that the plaintiff is engaged in the wholesale business of trading of plywood, laminated wood, wood sawn etc. and other allied goods from the above mentioned address under the name and style of M/s Jai Maa Bhramari Timber, which is a proprietorship concern of the plaintiff. The present suit was filed through Sh. Brij Mohan Garg, husband of the plaintiff who vide General Power of Attorney dated 24.03.2023 was appointed as attorney of the plaintiff. It has been averred that he is well acquainted with the facts and circumstances of the case as he was personally involved in the transaction with the defendant.
3. It was averred that defendant had approached the plaintiff and her husband at the above said office of the plaintiff and made representations and assurances that he is engaged in retail trading business of plywood, laminated wood, veneered panels and other allied goods under the name and style of M/s S. M. Timbers, he is the sole proprietor of M/s S. M. Timbers and is in control and management of said firm and all the day to day activities including the finances, he is in retail trading business of CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 2 of 38 the wood, sawn timber and other allied goods for his business purpose and for retail sale in the market, in the ordinary course of business he would require huge quantity of woods or laminated wood etc and that he would provide a good amount of business to the plaintiff by purchasing timber and other goods, he would be purchasing the goods from the plaintiff in ordinary course of business and would be making the payment of the above said goods after delivery of the same and in case of default in making the payment by him, he (defendant) would be liable to pay interest @ 18.00% per annum on the default amount.
4. It was further averred that relying upon the representations and assurances of the defendant, the plaintiff had agreed to supply the goods to the defendant on the agreed terms. According to the requirements and instructions from the defendant, the plaintiff had supplied the goods to the defendant in the ordinary course of business and whenever goods were sold to the defendant, an invoice was raised in lieu of the goods supplied.
5. It was averred that the plaintiff was maintaining a current and non-mutual account of the defendant in her books of account in the ordinary course of business wherein the invoices raised by the plaintiff in lieu of the goods supplied to the defendant were debited and the payments received from the defendant were credited in the said account. A sum of Rs. 10,80,932.10/- (Principal) was outstanding as on 06.04.2021 which was due and payable by the defendant as per the books of account maintained by the plaintiff in the ordinary course of CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 3 of 38 business. Attorney of the plaintiff had requested the defendant several times to make the payment of the outstanding amount along with interest but the defendant had failed and neglected to make the payable of the outstanding amount. Finding no other alternative, the plaintiff had got issued and served upon the defendant a notice of demand dated 05.02.2022 through her counsel calling upon the defendant to make the payment of the outstanding amount along with interest @ 18.00% per annum. Despite service of the notice, the defendant has failed and neglected to make the payment of the outstanding amount. No reply to the said notice dated 05.02.2022 had been received by the plaintiff.
6. It has been further stated that the plaintiff is entitled to recover from the defendant, the following amount:-
Sl. Particulars Amount
No. (Rs.)
1. Principal Amount 10,80,932.00
2. Interest w.e.f. 05.04.2021 till the date of 3,84,260.00 filing of suit Total 14,65,192.00 The plaintiff is also entitled for recovery of pendente lite and future interest @ 18.00% per annum from the defendant.
7. The plaintiff has thus prayed for a decree of recovery for a sum of Rs. 14,65,192/- (Rupees fourteen lakh sixty five thousand one hundred ninety two only) along with pendente lite and future interest @ 18% per annum on the principal amount and the costs of the suit against the defendant.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 4 of 38
8. Defendant filed the written statement and in its preliminary objections inter-alia averred that the suit of the plaintiff is not maintainable being abuse of process of law, the plaintiff had neither sent the legal demand notice to the defendant on the registered address nor through registered post and that the plaintiff has not approached this court with clean hands and suppressed the material facts. It was averred that husband of plaintiff Sh. Brij Mohan Garg was earlier running the proprietorship firm in the name and style of JMB Wooden Doors, however, he has changed the name of his firm as JMB Kitchenware and the registered office of both the firms (JMB Kitchenware and Jai Maa Bhramari Timber) is Ground Floor, Kh.No.637, Mundka Left Side, Village Mundka, West Delhi, Delhi-110041. It was stated that Smt. Manju Garg and Sh. Brij Mohan Garg i.e. both husband and wife are proprietor of the firm and Mr. Brij Mohan Garg used to handle daily business affairs of both the firms with the customer. It was averred that Sh. Brij Mohan Garg had received excess payment to the tune of Rs. 6,24,036/- from the defendant and when he (defendant) asked Sh. Brij Mohan Garg to return the same then he told the defendant that he would adjust the excess payment in his wife's firm, namely, M/s Jai Maa Bhramari Timber account, however, till date neither the excess payment had been adjusted nor returned to the defendant.
9. In reply on merits, the defendant submitted that GPA Holder Sh. Brij Mohan Garg was running a proprietorship firm in CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 5 of 38 the name and style of JMB Wooden Doors, vide GSTIN:07AAZPG9545R1ZF having its registered office at Property No. 1, Kh.No. 107/15 & 6, Swaran Park Extn., Mundka, Delhi-110041. The plaintiff and defendant were known to each other since very long, they were having business terms since the year 2016 and well aware about the terms & conditions of each other. He further submitted that he had made the payment from time to time and most of the time paid advance payment for purchase of the timber to save his goodwill and credit in the market which has not been adjusted by the plaintiff in his books of accounts. He has denied that he (defendant) has ever proposed or signed any terms of the plaintiff that he would be liable to pay interest @ 18.00% per annum on the defaulted amount. He stated that he had already cleared all the dues of the plaintiff and that the plaintiff was not maintaining his books of account properly, therefore, the same is not tallying with the books of account of the defendant. He admitted that he purchased the timber from the plaintiff on mutually agreed terms & conditions. He averred that tax invoices were raised by the plaintiff in triplicate copy, original copy of tax invoice was for the defendant, the second copy was for transporter and the third copy was for the plaintiff. He averred that there are some bills/tax invoices raised by the plaintiff which did not match with the books of accounts of the defendant. He stated that the defendant had paid every time whenever he had received the original bill or tax invoice for supply of goods from the defendant and maintained in his books of accounts. He averred that there was no outstanding amount of Rs. 10,80,932/- due to be paid by him as on 06.04.2021. As per the ledger account of the defendant, the CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 6 of 38 plaintiff had received an excess amount of Rs. 4,55,756.79/- which was evident from the ledger account of the plaintiff maintained by the defendant. The plaintiff and defendant were having business relations since 2016, the plaintiff was carrying same business from the proprietorship firm in the name & style of JMB Wooden Door and the ledger account of the defendant from 01.11.2016 to 31.03.2020 revealed that plaintiff had received an advance/excess payment of Rs. 6,24,036/- which had not been returned or adjusted by the plaintiff in his books of accounts. The defendant contacted the plaintiff several times to tally the ledger account and adjust the advance/excess payment which has been received by the plaintiff firm JMB Wooden Doors but the plaintiff did not pay any heed to the request of the defendant. It has been averred that till date the plaintiff owes Rs. 4,55,756.79/- of the defendant which has not been paid till date even after several requests made by the plaintiff in person and through telephone. It is submitted that the plaintiff is not entitled to recover a single penny from the defendant and it is prayed that the suit of the plaintiff be dismissed with costs.
10. The plaintiff has filed replication, wherein he has reiterated the facts as mentioned in the plaint and controverted the facts as mentioned in the written statement of defendant. The plaintiff further inter-alia mentioned that the ledger account of the plaintiff as filed by the defendant as maintained by the defendant in his books of accounts was not true and correct and that it was forged, fabricated and manipulated by the defendant. It was stated that there are various discrepancies in the ledger account of the plaintiff maintained and filed by the defendant. It CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 7 of 38 was stated that the defendant with malafide intent has deliberately deleted various invoices from the ledger account of the plaintiff maintained and filed by the defendant before the court. The details of the invoices which were deleted by the defendant from the said ledger are invoice no. JMBT/87/18-19 dated 29.08.2018 of Rs. 72,104/-, invoice no. JMBT/162/18-19 dated 14.01.2019 of Rs. 2,79,495/-, invoice no. JMBT/21/19-20 dated 12.05.2019 of Rs. 88,863/-, invoice no. JMBT/22/19-20 dated 17.05.2019 of Rs. 81,504/-, invoice no. JMBT/59/19-20 dated 09.09.2019 of Rs. 4,66,007/-, invoice no. JMBT/124/19-20 dated 07.11.2019 of Rs. 4,16,010/- and invoice no. JMBT/24/20- 21 dated 08.07.2020 of Rs. 79,119/- with total amount of Rs. 14,83,102/-. It was submitted that the plaintiff had sold and supplied the goods in lieu of above said invoices which were duly received by the defendant and the plaintiff had also generated e-way bills in respect of invoices having value of more than Rs. One lakh. It was stated that the plaintiff was placing on record copies of said invoices and e-way bills. It was stated that the plaintiff had also filed GST Return in respect of said invoices which would show that the invoices were raised, goods were sold and supplied by the plaintiff and duly received by the defendant. It was further stated that in addition to deletion of above said invoices, the defendant has also manipulated or changed the amount of some invoices raised by the plaintiff to mislead the court. The said invoices are as under:-
a. Invoice No. JMBT/200/19-20 dated 22.02.2020, amount as raised by the plaintiff is Rs. 96,039/- and the amount shown by the defendant as Rs. 98,944.18/-.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 8 of 38 b. Invoice No. JMBT/206/19-20 dated 24.02.2020, amount as raised by the plaintiff is Rs. 95,206/- and the amount shown by the defendant as Rs. 97,678.04/-.
c. Invoice No. JMBT/208/19-20 dated 24.02.2020, amount as raised by the plaintiff is Rs. 92,784/- and the amount shown by the defendant as Rs. 99,522.38/- and d. Invoice No. JMBT/209/19-20 dated 24.02.2020, amount as raised by the plaintiff is Rs. 92,589/- and the amount shown by the defendant as Rs. 98,377.78/-.
10.1. It was further stated in the replication that in the ledger account of the plaintiff as filed by the defendant, the defendant has shown a journal entry on 31.03.2019 for a sum of Rs. 6,24,036/- thereby debiting the ledger account of the plaintiff by the said amount. As per the said entry, the defendant has reduced his liability for a sum of Rs. 6,24,036/- towards the plaintiff. It has been stated that the said entry as shown by the defendant in the ledger account of the plaintiff is false, wrong and without any basis.
10.2. It was further stated that the ledger account filed by the plaintiff is forged and fabricated due to following entries:-
a. An invoice bearing no. JMBT/25/20-21 dated 11.07.2020 for an amount of Rs. 89,787/- issued by the plaintiff had been shown on a prior date 16.06.2020 by the defendant in the ledger account.
b. An invoice bearing no. JMBT/29/20-21 dated 18.07.2020 for an amount of Rs. 86,824/- issued by the plaintiff had been shown on 27.12.2020 by the defendant in the ledger account.
c. The defendant had booked a purchase from plaintiff of Rs.
81,054/- on 17.07.2019 in the ledger account filed by him, CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 9 of 38 however, no such invoice was ever issued by the plaintiff. The plaintiff did not make any sale in the month of July, 2019 to the defendant.
d. The defendant had booked a purchase from the plaintiff of Rs. 4,66,007/- on 26.02.2020 in the ledger account filed by him, however, no such invoice was ever issued by the plaintiff.
10.3 It was further averred in the replication that the plaintiff has no concern with the transaction of the defendant with M/s JMB Wooden Doors. It was stated that the husband of the plaintiff, namely, Sh. Brij Mohan Garg was running his business of woods under the name & style of M/s JMB Wooden Doors (now known as M/s JMB Kitchenware). It was stated that the defendant had separate business transaction with said M/s JMB Wooden Doors and the said firm had issued invoices in the name of the defendant for sale of goods and also received payment from the defendant. The ledger account of the defendant was also maintained by M/s JMB Wooden Doors wherein the invoices raised by it were debited and the payment received were credited. The business transactions of the plaintiff with the defendant were separate, independent, distinct and exclusive, having no relation or concern whatsoever with the business transaction of the defendant with M/s JMB Wooden Doors i.e. the firm of the husband of the plaintiff. The plaintiff has also filed the correct ledger account of the defendant being maintained by M/s JMB Wooden Doors in its books which would show that there was an outstanding amount of Rs. 84,214/-
payable by M/s JMB Wooden Doors to the defendant instead of Rs. 6,24,036/- as alleged in the written statement filed by the defendant. The plaintiff being a separate legal entity has no CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 10 of 38 concern with the business transaction between the defendant and M/s JMB Wooden Doors. It was never agreed, represented or instructed either by the plaintiff or her husband or any other person on her behalf to make any such adjustment of advance payment received by M/s JMB Wooden Doors in the books of the plaintiff. The defendant has not made any payment to the plaintiff for and on behalf of M/s JMB Wooden Doors or to M/s JMB Wooden Doors on behalf of the plaintiff. The defendant with malafide intention has shown the excess payment of Rs. 6,24,036/- in the ledger account of M/s JMB Wooden Doors. The defendant has also deliberately shown the following payments in the ledger account of M/s JMB Wooden Doors:-
a. Cheque No. 369039 dated 07.11.2017 of Rs. 2,00,000/- of IDBI Bank & b. Cheque No. 406484 dated 28.08.2018 of Rs. 2,00,000/- of IDBI Bank.
It was stated that the said two payments were never made by defendant nor received by M/s JMB Wooden Doors. It was further stated that the defendant had filed the forged and fabricated ledger account of M/s JMB Wooden Doors as he has deliberately deleted the invoice no. 3 dated 12.04.2017 of Rs. 1,00,627/-.
11. From the pleadings, the following issues were framed by my ld. Predecessor on 27.09.2023 : -
"1. Whether the plaintiff is entitled to recover from the defendant a sum of Rs. 14,65,192/- (Rupees fourteen lakh sixty five thousand one hundred ninety two only), as prayed in the plaint? OPP CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 11 of 38
2. If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP
3. Relief."
No other issue arose or was pressed by the parties.
12. Sh. Brij Mohan Garg, General Power of Attorney holder/husband of plaintiff was examined as PW1 and Sh. Manish, Inspector, GST Department, Mundka Division was examined as PW2 in support of the plaintiff's case. Evidence by way of affidavit filed by PW1 has been proved as Ex. PW1/A. No other witness has been examined by the plaintiff in support of its case.
13. The defendant has examined himself as DW1 in support of his case. Evidence by way of affidavit filed by DW1 has been proved as Ex. DW1/A. Defendant has examined Sh. Kaushal Kumar, Accountant of M/s S.M.Timber as DW2. Evidence by way of affidavit filed by DW2 has been proved as Ex. DW2/A. No other witness has been examined by the defendant in support of its case.
14. Ld. Counsel for the plaintiff has filed written submissions and also orally argued on the lines of the said written submissions. Ld. Counsel for the plaintiff further argued that the plaintiff had supplied the goods to the defendant and raised invoices for the same, the plaintiff was maintaining a current and non mutual account of the defendant in her books of account and all invoices raised by the plaintiff in lieu of goods CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 12 of 38 sold were debited and the payments received from the defendant were duly credited in the said statement of account Ex. PW1/6. He argued that the ledger account as maintained by the defendant was a forged, fabricated and manipulated document as the plaintiff had mentioned in detail in her replication to the written statement of the defendant. He submitted that the defendant has admitted various documents and invoices from Ex. P-1 to Ex P- 33 (Colly). He argued that the plaintiff has proved the invoices which were admitted by the defendant, however, the defendant with malafide intent has deleted some of the invoices from his ledger account Ex. DW1/1. He referred to the testimonies of PW1 and PW2 and also to the testimonies of DW1 and DW2. He submitted that on comparing Ex. PW1/6 (Colly) and Ex. DW1/1 (Colly) it was evident that the defendant has deliberately deleted 7 invoices from his ledger account. He also argued that the defendant has malafidely and illegally debited the account of the plaintiff maintained by him i.e. Ex. DW1/1 (Colly) by Rs. 6,24,036/- on 31.03.2019 without any instructions, knowledge or consent of the plaintiff. He submitted that the defendant had raised a false plea that the husband of the plaintiff who was running a proprietorship concern, namely, M/s JMB Wooden Doors had received an excess payment of Rs. 6,24,036/-. He also referred to the testimonies of DW1 and DW2 in that regard. He submitted that the written arguments filed by him be read as final arguments and the suit of the plaintiff be decreed.
15. Ld. Counsel for the defendant has also filed written arguments and also orally argued on the lines of the said written arguments. He further submitted that the service of the legal CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 13 of 38 demand notice was not properly done by the plaintiff upon the defendant. He argued that Mr. Brij Mohan Garg i.e. the husband of the plaintiff was earlier running a proprietorship firm in the name & style of JMB Wooden Doors and the name of the said firm was subsequently changed to JMB Kitchenware. He submitted that the registered office of JMB Kitchenware and Jai Maa Bhramari Timber of the plaintiff is the same and said Mr. Brij Mohan Garg used to handle daily business affairs of both the firms with the customers. He submitted that said Mr. Brij Mohan Garg had received an excess payment of Rs. 6,24,036/- from the defendant and thereafter told the defendant that he would adjust the excess payment in his wife's firm, namely, Jai Maa Bhramari Timber account. He submitted that the books of accounts maintained by the defendant were maintained in a proper manner and that the plaintiff was not maintaining his books of account properly. He submitted that as per the books of account of the defendant, the plaintiff was supposed to return the excess amount to the defendant. He also referred to the cross-examination of PW1 and PW2. He also referred to the testimonies of DW1 and DW2. He submitted that there were no signatures of the plaintiff on the tax invoices filed by the plaintiff. He submitted that the plaintiff has not complied with Section 12A of the Commercial Courts Act, 2015. He submitted that his written final arguments may be read in this case and the suit of the plaintiff may be dismissed.
16. The issue wise findings are as under:-
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 14 of 38 ISSUE No.1 Whether the plaintiff is entitled to recover from the defendant a sum of Rs. 14,65,192/- (Rupees fourteen lakh sixty five thousand one hundred ninety two only), as prayed in the plaint? OPP PW1 in his evidence by way of affidavit, Ex. PW1/A has generally reiterated the facts as mentioned the plaint and replication which are not being repeated for the sake of brevity. PW1 has also proved the the General Power of Attorney dated 27.03.2023 as Ex. P1, the computer generated tax invoices as Ex.
P2 to Ex. P6 and from Ex. P12 to Ex. P31, computer generated GST Return of the plaintiff as Ex. P-32 (Colly), ledger of M/s JMB Wooden Doors as Ex. P-33 (Colly), invoice no. JMBT/87/18-19 dated 29.08.2018 for Rs. 72,104.10/- as Ex. PW1/1, invoice no. JMBT/162/18-19 dated 14.01.2019 for Rs. 2,79,495/- along with E-way Bill as Ex. PW1/2 (Colly), invoice no. JMBT/21/19-20 dated 12.05.2019 for Rs. 88,663/- as Ex. PW1/3, invoice no. JMBT/124/19-20 dated 07.11.2019 for Rs. 4,16,010/- along with E-way Bill as Ex. PW1/4 (Colly), invoice no. JMBT/24/20-21 dated 08.07.2020 for Rs. 79,119/- as Ex. PW1/5, ledger Account of the defendant i.e. SM Timber for the period 01.04.2017 to 31.03.2023 as Ex. PW1/6 (Colly), copies of
(i) Invoice no. JMBT/200/19-20 dated 22.02.2020, (ii) invoice no. JMBT/206/19-20 dated 24.02.2020, (iii) invoice no. JMBT/208/19-20 dated 24.02.2020 and (iv) invoice no.JMBT/209/19-20 dated 24.02.2020 as Ex. PW1/7 (Colly), ledger Account of M/s JMB Wooden Doors for the period 01.04.2017 to 31.03.2019 as Ex. PW1/8 (Colly), copy of Legal Notice dated 05.02.2022 as Ex. PW1/9, returned envelope as Ex.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 15 of 38 PW1/10 (Colly), certificate u/s 65 (A) and (B) of the Indian Evidence Act, 1872 as Ex. PW1/11, certificate u/s 65 (A) and (B) of the Indian Evidence Act, 1872, with regard to the additional documents as Ex. PW1/12 and non-starter report dated 21.02.2023 as Ex. PW1/13.
17. During his cross examination, PW-1 inter-alia deposed that they were having business relation with the defendant since April, 2017. They did not have any business relation to the defendant prior to the present business. After seeing the Tax Invoice dated 07.10.2017, Ex. PW1/D1 and Tax Invoice dated 23.09.2017, Ex. PW1/D2, witness stated that both bears his signatures at point, "A". He was also shown Tax Invoices dated 12.09.2017, 30.08.2017, 26.08.2017, 25.08.2017 and 21.08.2017, Mark-PW1/D3 (Colly), however, PW1 stated that those do not bear his signatures. He further deposed that the defendant used to place orders telephonically. He admitted the suggestion that after receiving orders they used to supply the goods to the defendant. To the question as to whether they used to obtain receipts from the defendant regarding supply of goods, PW1 stated that the defendant used to send vehicle for taking the goods and the driver of the said vehicle did not use to show any document that he had come to take delivery of the goods. He volunteered that there used to be telephonic conversation in that regard. He further deposed that the telephonic conversation used to be between him and the defendant. He used to telephonically tell the defendant that the vehicle had come and he had got the goods loaded in the vehicle. To the question as to how he came to know that the driver was sent by the defendant, he stated that he CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 16 of 38 used to talk to the defendant in that regard. He further deposed that he used to handover the original bill to the driver. He further deposed that three copies of the bills were prepared, he used to keep triplicate copy of the bill and the first two copies were handed over to the driver. He deposed that the word, " Triplicate"
was not written in any of the Tax Invoice filed by them and that he was having triplicate copies of the Tax Invoices in his file. He again stated that the same were with their Chartered Accountant and he can produce the same in the court. PW1 had brought the originals of Triplicate copies of the Tax Invoices for supplier from 13.04.2018 till 05.04.2021 issued to the defendant which were Ex. PW1/D4 (Colly). Ld. Counsel for the defendant had also shown the Tax Invoice dated 03.06.2020 Ex. P-3 to the witness and had also shown the invoice dated 03.06.2020 from the invoices placed on record from Ex. PW1/D4 (Colly, consisting of 136 pages) on page no. 23 which was separately marked as Mark X. PW1 after seeing both the documents had deposed that these were the same Tax Invoices bearing the same invoice number JMBT/05/20-21. He denied the suggestion that the document already Ex. P-3 was a forged and manipulated document. He admitted that on the document Ex. P-3, the words '(TRIPLICATE FOR SUPPLIER)' had not been mentioned on the top right side of the page, however, he volunteered that Ex. P- 3 is an office copy which was taken as print out for filing of the present case from the computer. He further volunteered that the above said word TRIPLICATE FOR SUPPLIER was not mentioned in the computer record of the proprietorship firm . He admitted that all the Tax Invoices are saved in the computer record of the proprietorship firm. He denied the suggestion that CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 17 of 38 the print out of said Tax Invoices were handed over to any person on demand after taking its print out. He denied the suggestion that the documents Ex. PW1/D4 (Colly) were forged and manipulated. He admitted that he had filed the present suit after recording all the Tax Invoices in the ledger account Ex. PW1/6 for the balance amount which was showing on 06.04.2021. He also admitted that he was the proprietor of M/s JMB Wooden Door. He further deposed that he had business relations with the defendant since 2017. He admitted that the parties used to deal on advance payment and also on credit basis. He again said that the deals with the defendant were on credit basis only and was never on advance payment basis. He admitted that JMD Wooden Door was supplying wooden doors to the defendant. He deposed that after incorporation of the plaintiff firm, the defendant was purchasing timber from the plaintiff. He denied the suggestion that JMB Wooden door was having credit/advance payment from the defendant. He denied the suggestion that the same was agreed to be carried forward/adjusted in the accounts of the plaintiff firm. He deposed that only manual invoices were issued from M/S JMB Wooden Doors. He deposed that the printed Tax Invoice bearing no.3 dated 20.04.2017 issued by M/s JMB Wooden Door Ex. PW1/D5 was not issued by him, however, it bears his signature at point X. He again said that the said invoice Ex. PW1/D5 was issued by M/s JMB Wooden Door and bears his signature. He did not remember exactly from when M/s JMB Wooden Door had started issuing the printed invoices. He did not remember if M/s JMB Wooden Door had started issuing the printed invoices from 01.04.2017. He did not remember if M/s JMB Wooden Door had started issuing the printed invoices CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 18 of 38 from the year 2018 or if prior to the year 2018 the said firm was issuing only manual handwritten invoices. He admitted that the Tax Invoices of M/s JMB Wooden Doors already Ex. PW1/D1 and Ex. PW1/D2 dated 07.10.2017 and 23.09.2017 respectively were handwritten invoices. PW1 was put a question that after starting issuing the computerized printed tax invoice, the firm M/s JMB Wooden Doors would not issue manual handwritten tax invoices to which he (witness) replied that only manual handwritten tax invoices were being issued and the record of the same was kept in computer after certain period of time for its memory and thereafter as per requirement, the print out of the same could be taken from the computers. He admitted that triplicate copies were made of handwritten tax invoices, one copy was for the buyer, one copy was for the driver and one copy was kept by M/s JMB Wooden Doors i.e. the supplier. He deposed that despite having one copy of the invoices, its copy was also kept in computer records. He denied the suggestion that he was solely managing both the firms i.e. Jai Maa Brahmari Timbers and M/s JMB Wooden Doors. He volunteered that the firm Jai Maa Brahmari Timbers is of his wife, namely, Smt. Manju Garg. He deposed that the details regarding the total bills and outstanding amount was mentioned in the plaint and the accompanying documents. He denied the suggestions that the plaintiff was liable to pay an amount of Rs. 4,24,000/- to the defendant or that the plaintiff had filed the present suit to avoid the liability of the defendant or that the plaintiff was not entitled for recovery of suit amount or that he had filed the present suit against the defendant to extort money or that he was deposing falsely.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 19 of 38
18. PW2 Sh. Manish Inspector, GST Department, Mundka Division was a summoned witness. He had brought the summoned record i.e. GSTR-I of Ms. Manju Garg (Plaintiff) having GST no. 07AAZPG9552A1ZF for the months of August, 2018, January, 2019, September, 2019, November, 2019, February, 2020 and July, 2020 which showed the total sales made by the firm of Ms. Manju Garg during the above said months. He deposed that the printouts brought by him on that day were not clearly legible and GSTR-I for the month of May, 2019 was not being shown on their portal and he had already raised a Ticket in that regard. He submitted that he could produce legible copies of above GSTR on the next date of hearing. On the next date of hearing, PW2 had brought GSTR-I of the plaintiff for the months of August, 2018, January, 2019, May, 2019, September, 2019, November, 2019, February, 2020 and July, 2020. The same were proved as Ex. PW2/1 to Ex. PW2/7 respectively bearing his signature at points "A". He proved a compilation of the said Returns showing sale of goods by the plaintiff to the defendant prepared by him as Ex. PW2/8 bearing his signatures at points "A". He deposed that the above GST Returns had been downloaded from their portal and the said portal could be accessed only in their office.
18.1. During cross-examination, PW2 deposed that he is working in the office of GST since 10.01.2022. He admitted that for accessing the GST portal in the office, each officer is given a separate Login ID and password through which only he can access the portal. He deposed that the monthly GST Returns CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 20 of 38 were available in the portal, however, he had prepared the compilation since the same were required. He deposed that the GST Returns were in Excel format and the same could be edited after downloading. He deposed that he had taken printouts of Ex. PW2/1 to Ex. PW2/7, after downloading the same and increasing its size so that it is legible. He denied the suggestion that after downloading the GST Returns, he had edited the same to suit the interest of the plaintiff. He admitted that Ex. PW2/1 to Ex. PW2/8 did not bear stamp of the GST Department. He deposed that he had not filed any Certificate u/s 65 B of the Indian Evidence Act, 1872. He denied the suggestion that he had manipulated the documents at the instance of the plaintiff. His official identity card was proved as Ex. PW2/D1. Thereafter plaintiff's evidence was closed on 05.01.2024.
19. DW1 Sh. Ratnesh Kumar Mishra, Proprietor of M/s S M Timber has tendered his evidence by way of affidavit as Ex. DW1/A wherein he has generally reiterated the facts stated in the written statement. He has relied upon Ledger Account of plaintiff maintained by defendant firm from 01.04.2017 to 31.03.2018, 01.04.2018 to 31.03.2019, 01.04.2019 to 31.03.2020, 01.04.2020 to 31.03.2021, 01.04.2021 to 31.03.2022 and 01.04.2022 to 31.03.2023 as Ex. DW1/1 (Colly).
19.1. During cross-examination, DW1 deposed that the name of his firm is M/s S. M. Timber, he is the proprietor of said firm, the said firm deals in trading of timber, the current address of the said firm is C-15, 16/2, Block C, Hastsal Vihar, Uttam Nagar, New Delhi-110059 and it is also the address of his house.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 21 of 38 He volunteered that he had taken GST number of the said firm at the above said address, however, his godown was situated near Metro Pillar No. 698, Phase-I, Om Vihar, Uttam Nagar. He deposed that the above said godown does not have municipal number. He deposed that earlier he had taken GST at the address Plot No. 58, Om Vihar, Phase-I, Uttam Nagar, New Delhi-110059 but since year 2016, he had taken GST number at C-15, 16/2, Block C, Hastsal Vihar, Uttam Nagar, New Delhi-110059. Ld. Counsel for the plaintiff had shown the legal notice dated 05.02.2022 Ex. PW1/9 to DW1 and has shown him the address of Plot No. 58, Om Vihar, Phase-I, Uttam Nagar, New Delhi- 110059 mentioned as his address to which DW1 had deposed that he had left the said address in the year 2016. Ld Counsel for the plaintiff had shown the tax invoice dated 02.06.2020 Ex. P-2 to the witness which also mentions his address of Plot No. 58, Om Vihar, Phase-I, Uttam Nagar, New Delhi-110059. The witness had replied that now his address for GST had been changed but earlier for quite some years his previous address of Plot No. 58, Om Vihar, Phase-I, Uttam Nagar, New Delhi-110059 used to be reflected in the tax invoices. He further deposed that he used to receive the goods from the plaintiff at the above said address i.e. Plot No. 58, Om Vihar, Phase-I, Uttam Nagar, New Delhi- 110059. He admitted that he used to give only telephonic order to the plaintiff to purchase the goods and there was no written communication in that regard. To a question put to the witness that in his written statement, he had alleged that Mr. Brij Mohan Garg was liable to pay an amount of Rs. 6,24,036/- to him and if he had issued any demand notice or letter to Mr. Brij Mohan Garg for the recovery of said alleged amount. DW1 replied that CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 22 of 38 he had not issued any such written demand notice or letter to Mr. Brij Mohan Garg in that regard. He deposed that all communications were only through telephone or by meeting him in person by going to him. Further, another question was put to DW1 that in Ex. DW1/1 (Colly), he had debited the Ledger Account of the plaintiff Smt. Manju Garg by Rs. 6,24,036/- on 31.03.2019 and if he had issued any debit note to Smt. Manju Garg before passing such entry in the Ex. DW1/1 (Colly). DW1 replied that he had not issued any debit note to Smt. Manju Garg in that regard. He deposed that he had not taken any consent letter from Smt. Manju Garg before making an entry in the Ex. DW1/1 (Colly) regarding Rs. 6,24,036/-. He volunteered that he had never seen or talked to the plaintiff Smt. Manju Garg till date and that he only talked with Sh. Brij Mohan Garg i.e. the husband of the plaintiff. He denied the suggestion that he had seen or talked to the plaintiff Smt. Manju Garg before filing of the present suit. He deposed that he had not taken any consent letter from Sh. Brij Mohan Garg or executed any document prior to making an entry in the Ex. DW1/1 (Colly) regarding Rs. 6,24,036/-. He admitted that he had not filed any suit to recover Rs.6,24,036/- from Sh. Brij Mohan Garg. He also admitted that he had not filed any counter claim against the plaintiff Smt. Manju Garg for a sum of Rs. 4,55,756.79/-. He further deposed that he files GST Return and his GST Number is correctly mentioned on Ex. PW2/1 to Ex. PW2/7. He could not say if he had received the goods mentioned in the invoices as mentioned in Ex. PW2/1 to Ex.PW2/7. He volunteered that only accountant Mr. Kaushal could tell about the same. He could not say if he had claimed input tax credit qua the invoices. He volunteered CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 23 of 38 that his accountant could tell about the same. He deposed that he had not filed his GST Returns for the relevant period on record. He denied the suggestion that he had deliberately not filed the same on record to conceal the purchase of goods from the plaintiff qua the tax invoices Ex. PW1/1 to Ex. PW1/7 (Colly). He could not say if the Ex. P-28 to Ex. P-31 were shown in Ex. DW1/1 (Colly). To a question put to the witness that in paragraph no. 6 of his affidavit Ex. DW1/A, he had mentioned that Mr. Brij Mohan Garg had received an excess payment amount of Rs. 4,24,036/- from him and he had told him that he would adjust the said amount in the books of the plaintiff's firm, however, till date he did not adjust or return the said amount, however, in Ex. DW1/1 (Colly) he (DW1) had made an entry of Rs. 6,24,036/- dated 31.03.2019 thereby debiting the account of the plaintiff. DW1 replied that he had done it only after asking Mr. Brij Mohan Garg after one of their meetings and that the said meeting had taken place after the present suit had been filed. Another question was put to the witness that the suit was filed on 01.04.2023 whereas the above said entry was dated 31.03.2019 i.e. much before filing of the present suit and what he had to say about it. The witness replied that he did not remember, however, in the previous question he could not state properly. He deposed that the said meeting between him and Mr. Brij Mohan Garg took place in the year 2017 or 2018. He denied the suggestions that he was deposing falsely with regard to the meeting or that he was deposing falsely and it was for that reason there had been contradiction in the answers to the said questions or that that the entry dated 31.03.2019 of Rs. 6,24,036/- was made by him to manipulate Ex. DW1/1 (Colly) after filing of the suit or CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 24 of 38 that Mr. Brij Mohan Garg had not asked him to do the said entry. Ld. Counsel for the plaintiff had shown the bank statement of the plaintiff Ex. P-33 (Colly) to DW1 and after seeing the same, DW1 admitted that there was no entry in Ex. P-33 (Colly) to show that he had made the payment of Rs. 2,00,000/- to M/s JMB Wooden Doors of Mr. Brij Mohan Garg on 07.11.2017. He also admitted that there was no entry in Ex. P-33 (Colly) to show that he had made the payment of Rs. 2,00,000/- to M/s JMB Wooden Doors of Mr. Brij Mohan Garg on 28.08.2018. He denied the suggestion that he had filed the forged, fabricated and manipulated documents in the present suit. He further deposed that he had availed an overdraft facility from Kotak Mahindra Bank, Uttam Nagar Branch, New Delhi and he pays an interest approx. @ 10.00% on the amount used in the overdraft facility. He denied the suggestions that the plaintiff was not liable to make any payment to him or that Mr. Brij Mohan Garg was not liable to pay the alleged excess amount at any point of time or that no advance or excess payment was ever paid by him to Mr. Brij Mohan Garg or to the plaintiff or that his ledger account Ex. DW1/1 (Colly) was false and manipulated or that he had received the goods qua the invoices shown in Ex. PW1/6 (Colly) or that the invoices raised by the plaintiff were duly shown in his GST Return or that he had also claimed the input tax credit on all the invoices as shown in Ex. PW1/6 (Colly) or that he had deliberately not filed his GST Return to conceal the tax invoices raised by the plaintiff in his favour or that he had deliberately not filed his bank statement as it would have shown that he had not made the payment of Rs. 2,00,000/- each to Mr. Brij Mohan Garg on 07.11.2017 and 28.08.2018 or that he was deposing falsely.
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20. DW2 Sh. Kaushal Kumar is the accountant of M/s S. M. Timber i.e. the proprietorship concern of the defendant. He has proved his evidence by way of affidavit as Ex.DW2/A. He relied upon the documents already Ex. DW1/1 (Colly). He has generally deposed in his affidavit on the lines of the written statement. He further deposed that the plaintiff's firm had received an excess payment of Rs. 4,24,036/- from the defendant and when defendant asked to return the same then Mr. Brij Mohan Garg told the defendant that he would adjust the excess payment in his wife's firm, namely, Jai Maa Bhramari Timber account, however, till date neither the excess payment had been adjusted nor returned. He also deposed that the plaintiff was not maintaining book of accounts properly as the same was not tallying with the book of accounts of the defendant. He deposed that there were some bills/tax invoices raised by the plaintiff which did not match with the books of the defendant. He deposed that the defendant had paid every time whenever he had received the original bill or tax invoice for supply of goods from the plaintiff and maintained in his books of accounts. He deposed that there was no outstanding amount of Rs. 10,80,932/- as on 06.04.2021 and that as per the ledger account of the defendant, the plaintiff had received an excess amount of Rs. 4,55,756.79/-.
21. During cross-examination, DW2 deposed that he was working with the defendant as an Accountant since the year 2005 and he had other clients also. He deposed that his scope of work was that he after checking all the sales and purchases of the CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 26 of 38 defendant maintained his books of accounts. He deposed that he also filed GST Return of the defendant. He admitted that the seller of goods files his GSTR-1 Return to show his monthly sale. He admitted that while filing GSTR-1 Return, it is mandatory to mention the GST Number of the purchasers. He admitted that after entering the GST Number of the purchaser in the GSTR-1 Return, its corresponding entry would also be reflected in the GSTR-2A of the purchaser. He volunteered that it would not be reflected at the time of filing of GSTR-1 Return and would be reflected only after its 4-5 days. After going through the tax invoice no.JMBT/04/20-21 dated 02.06.2020 Ex. P2, DW2 deposed that it mentioned the correct GSTIN/UIN Number of the S. M. Timber as 07AKSPM2822N1ZL. DW2 admitted that above said GST Number of the defendant is reflected at various places in documents already Ex. PW2/1 to Ex. PW2/7. DW2 also admitted that invoices mentioned in the Ex. PW2/1 to Ex. PW2/7 of the plaintiff in favour of the defendant were duly reflected in the GSTR-2A of the defendant. He volunteered that some of the invoices were disputed, however, he could not say which invoices are disputed. He denied the suggestion that the defendant had never disputed any of the invoices reflected in Ex. PW2/1 to Ex. PW2/7. DW2 further deposed that no protest regarding the alleged disputed invoices was raised with the GST Authorities either online or offline as there is no provision for it for the purchaser. He deposed that he had not given any written communication to the plaintiff to intimate that his alleged disputed invoices were being reflected in the GSTR-2A of the defendant. He volunteered that he had orally intimated it to the defendant and that he had no CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 27 of 38 direct communication with the plaintiff. He was asked a question to the effect that if he had claimed the input tax credit qua the invoices raised by the plaintiff as shown in Ex. PW2/1 to Ex. PW2/7 to which he replied that the input tax credit qua the invoices was shown in the GSTR-3B of the defendant and the defendant has paid the balance tax if any after set off of the input tax credit of the relevant month and that it is automatically reflected in the GST Portal. He denied the suggestion that a party could pay the GST of only the undisputed input tax credit shown in his portal and could leave the disputed input tax credit. He volunteered that a party has to pay the entire GST amount as reflected in the portal, after paying the GST amount, the said party would inform the opposite party that wrong invoice was being reflected in the portal against which the goods have not been received by the first party and that only seller could put the credit note in the portal against wrong invoice. He denied the suggestion that only the seller could issue the credit note against the alleged wrong invoices. He deposed that the information/documents to maintain the books of accounts of the defendant was being provided by the defendant to him. He admitted that the defendant had received the tax invoices Ex. P28 dated 17.05.2019 and Ex. P29 dated 09.09.2019. DW2 was shown Statement of Accounts Ex. DW1/1 (Colly) and after going through the same, he deposed that the above said invoices Ex. P28 and Ex. P29 were not shown in the said Statement of Accounts, Ex. DW1/1 (Colly). DW2 admitted that the tax invoice dated 11.07.2020 of Rs. 89,787/- Ex. P30 and tax invoice dated 18.07.2020 of Rs. 86,824/- Ex. P31 were received by the defendant, however, they were not reflected in the Statement of CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 28 of 38 Accounts Ex. DW1/1 (Colly). He denied the suggestions that the tax invoices Ex. P-28 to Ex. P-31 were not reflected in the Statement of Accounts Ex. DW1/1 (Colly) as the said Statement of Accounts was a forged and fabricated document or that the said Statement of Accounts Ex. DW1/1 (Colly) was not properly maintained by him. DW2 admitted that the name of the plaintiff's firm is M/s Jai Maa Bhramari Timber. He deposed that he had made the journal entry of Rs. 6,24,036/- dated 31.03.2019 in Ex. DW1/1 (Colly) qua JMB Wooden Door at point 'A' upon the directions of the defendant Mr. Ratnesh Kumar Mishra and that he had not seen any document prior to making the said entry dated 31.03.2019 and had done the said entry only upon the asking of the defendant. He could not say if JMB Wooden Door was not the firm of Smt. Manju Garg i.e. the plaintiff. He was put a question to the effect that he in paragraph nos. 7, 8 & 9 of his evidence by way of affidavit Ex. DW2/A has deposed to the effect that he was entitled to recover excess payment of Rs. 4,55,756.79/- from the plaintiff and if he had any personal business relations with the plaintiff. To the said question, he replied that he had no personal relations with the plaintiff and he on behalf of the defendant's firm had mentioned it in his evidence by way of affidavit. He denied the suggestions that he had signed the affidavit Ex. DW2/A without going through its contents or that his above said voluntary statement regarding GST and raising of disputes on the invoices is incorrect and contrary to the GST provisions and practice, circulars, orders etc. or that he was deposing falsely upon the directions of the defendant. The defendant's evidence was closed on 28.03.2024.
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22. The case of the plaintiff in nutshell is to the effect that the plaintiff is the proprietor of M/s Jai Maa Bhramari Timber which is engaged in the wholesale business of trading of plywood, laminated wood, wood sawn etc. The present suit has been filed by the plaintiff through her husband Mr. Brij Mohan Garg as her General Power of Attorney. Defendant is engaged in the retail trading business of plywood, laminated wood etc. under the name & style of M/s S M Timbers and is its sole proprietor. Further, as per the case of the plaintiff, the plaintiff upon representations and assurances of the defendant supplied goods to him in the ordinary course of business, the plaintiff used to raise an invoice in lieu of the goods supplied and was also maintaining a current and non mutual account of the defendant in her books of account. It is further the case of the plaintiff that as on 06.04.2021, an amount of Rs. 10,80,932/- was outstanding against the principle along with interest of Rs. 3,84,260/- w.e.f. 05.04.2021 till the filing of the suit i.e. the plaintiff was entitled for recovery of Rs. 14,65,192/- along with interest @ 18.00% per annum.
23. The case of the defendant in nutshell is to the effect that the husband of the plaintiff Sh. Brij Mohan Garg was earlier running the proprietorship firm in the name of JMB Wooden Doors whose name has now been changed to JMB Kitchenware and the registered office of the firm of the plaintiff i.e. Jai Maa Bhramari Timber and said JMB Kitchenware is the same. It is the case of the defendant that Mr. Brij Mohan Garg used to handle daily business affairs of both the firms with the customers. Further, it is the case of the defendant that said Sh.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 30 of 38 Brij Mohan Garg had received excess payment of amount of Rs. 6,24,036/- from the defendant and told the defendant that he would adjust the excess payment in his wife's firm, namely, Jai Maa Bhramari Timber, however, it was neither adjusted nor returned to the defendant. It is the case of the defendant that the plaintiff was not maintaining books of account properly as the same was not tallying with the books of accounts maintained by the defendant and there was no outstanding amount of Rs. 10,80,932/- as on 06.04.2021. It is also the case of the defendant that as per the ledger account of the defendant, the plaintiff has received an excess amount of Rs. 4,55,756.79/- which has not been paid by the plaintiff to the defendant.
24. The testimony of the witnesses has already been mentioned above. The plaintiff has proved the different tax invoices from dated 17.05.2019 to 05.04.2021 as Ex. P-2 to Ex. P-31 vide which the plaintiff through her sole proprietorship concern Jai Maa Bhramari Timber supplied imported timber and imported sawn timber to the defendant through his sole proprietorship concern S M Timber. All these tax invoices are reflected in the ledger accounts of the defendant as maintained by the plaintiff which have been proved as Ex. PW1/6 (Colly). The said ledger accounts are from 01.04.2017 to 31.03.2023. Nothing substantial has appeared in the cross-examination of PW1 to discredit either the said tax invoices or the above said ledger accounts Ex. PW1/6 (Colly). The invoice no. JMBT/87/18-19 dated 29.08.2018 of Rs. 72,104/- has been proved as Ex. PW1/1. The same has been denied by the defendant in the affidavit of admission/denial of documents. Invoice no. JMBT/162/18-19 CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 31 of 38 dated 14.01.2019 of Rs. 2,79,495/- along with e-way bill has been proved as Ex. PW1/2 (Colly). The same has also been denied by the defendant in the affidavit of admission/denial of documents. Invoice no. JMBT/21/19-20 dated 12.05.2019 of Rs. 88,663/- has been proved as Ex. PW1/3. The same has also been denied by the defendant in the affidavit of admission/denial of documents. Invoice no. JMBT/124/19-20 dated 07.11.2019 of Rs. 4,16,010/- along with e-way bill has been proved as Ex. PW1/4 (Colly). The same has also been denied by the defendant in the affidavit of admission/denial of documents. Invoice no. JMBT/24/20-21 dated 08.07.2020 of Rs. 79,119/- has been proved as Ex. PW1/5. The same has also been denied by the defendant in the affidavit of admission/denial of documents. All these tax invoices i.e. Ex. PW1/1 to Ex. PW1/5 are duly reflected in the ledger account Ex. PW1/6 (Colly) of the defendant as maintained by the plaintiff. PW2 is a Government official who had brought the required record i.e. GSTR-I of the plaintiff for the month of August, 2018, January, 2019, May, 2019, September, 2019, November, 2019, February, 2020 and July, 2020 which were proved as Ex. PW2/1 to Ex. PW2/7 respectively. The above said tax invoices Ex. PW1/1 to Ex. PW1/5 although denied by the defendant have been duly reflected in Ex. PW2/1, Ex. PW2/2, Ex. PW2/3, Ex. PW2/5 and Ex. PW2/7 respectively. PW2 has thus also corroborated and substantiated the version of PW1. DW2 has also inter-alia admitted that the invoices mentioned in Ex. PW2/1 to Ex. PW2/7 of the plaintiff in favour of the defendant were duly reflected in the GSTR-2A of the defendant. DW2 also admitted that GST number of defendant is reflected at various places in documents CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 32 of 38 Ex. PW2/1 to Ex. PW2/7. DW2 was also asked a question during his cross-examination that if the defendant had claimed the input tax credit qua the invoices raised by the plaintiff as shown in Ex. PW2/1 to Ex. PW2/7 to which DW2 replied to the effect that the input tax credit qua the invoices was shown in the GSTR-3B of the defendant and the defendant had paid the balance tax, if any, after setting off the input tax credit of the relevant month. The plaintiff has thus proved the tax invoices and the entries in its ledger account Ex. PW1/6 (Colly). Ex. PW1/6 (Colly) would show an outstanding principle amount of Rs. 10,80,932/- to be paid by the defendant to the plaintiff.
25. As far as the ledger accounts of the plaintiff as maintained by the defendant is concerned, it has been proved as Ex. DW1/1 (Colly). It is from 01.04.2017 to 31.03.2023. The testimony of DW2 Sh. Kaushal Kumar, Accountant of defendant is important in that regard. DW2 has inter-alia admitted that the defendant had received the tax invoices Ex. P-28 and Ex. P-29. Ex. P-28 is the invoice no. JMBT/22/19-20 dated 17.05.2019 of Rs. 81,054/-. Ex. P-29 is the invoice no. JMBT/59/19-20 dated 09.09.2019 for Rs. 4,66,007/- along with e-way bill. DW2 was shown the statements of account Ex. DW1/1 (Colly) and after going through the same, DW2 deposed that the said invoices Ex. P-28 and Ex. P-29 were not shown in the said statements of account Ex. DW1/1 (Colly). Similarly, invoice no. JMBT/25/20- 21 dated 11.07.2020 of Rs. 89,787/- has been proved as Ex. P-30 and invoice no. JMBT/29/20-21 dated 18.07.2020 for Rs. 86,824/- has been proved as Ex. P-31. DW2 in his cross- examination has further admitted to be correct that the said tax CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 33 of 38 invoices Ex. P-30 and Ex. P-31 were received by the defendant, however, they are not reflected in the statements of account Ex. DW1/1 (Colly). DW2 admitted that the correct name of the plaintiff's firm is M/s Jai Maa Bhramari Timber. He deposed that he had made journal entry of Rs. 6,24,036/- dated 31.03.2019 in Ex. DW1/1 (Colly) qua JMB Wooden Door upon the directions of the defendant. He deposed that he had not seen any document prior to making the said entry dated 31.03.2019 and had done the said entry only upon the asking of the defendant. It is thus evident that DW2 who is the Accountant of the defendant had done an entry of Rs. 6,24,036/- on 31.03.2019 in Ex. DW1/1 (Colly) regarding JMB Wooden Door only upon the directions of the defendant and without seeing any other document. DW1 has also inter-alia deposed in his cross-examination that he had not issued any written demand notice or letter to Mr. Brij Mohan Garg (husband of the plaintiff) regarding the said amount of Rs. 6,24,036/- and had also not issued any debit note to Smt. Manju Garg (plaintiff) in that regard. DW1 further deposed in his cross- examination that he had not taken any consent letter from the plaintiff before making an entry in Ex. DW1/1 (Colly) regarding Rs. 6,24,036/-. Ex. DW1/1 (Colly) is the ledger accounts with respect to the sole proprietorship firm Jai Maa Bhramari Timber of the plaintiff and is not the ledger account with respect to JMB Wooden Door. JMB Wooden Door is a separate proprietorship firm of the husband of the plaintiff and any amount qua JMB Wooden Door could not have been added in the ledger account of Jai Maa Bhramari Timber of the plaintiff. The said discussion shows that the defendant had not maintained the ledger account CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 34 of 38 with respect to the plaintiff properly and the said ledger accounts Ex. DW1/1 (Colly) is absolutely unreliable.
26. The defendant in the written statement has inter-alia mentioned that till date the plaintiff owes Rs. 4,55,756.79/- to it and the plaintiff has not paid it till date despite several requests made by the defendant. In that regard, ld. Counsel for the defendant had referred to the ledger account of the plaintiff as maintained by the defendant which has been proved as Ex. DW1/1 (Colly). Ld. Counsel for the plaintiff on the other hand submitted that the said ledger account Ex. DW1/1 (Colly) is totally unreliable and further the defendant has not filed any counter claim in that regard. The record would show that the ledger account of the plaintiff as maintained by the defendant has been proved as Ex. DW1/1 (Colly) and it mentions an outstanding amount of Rs. 4,55,756.79/- to be paid by the plaintiff to the defendant . It has already been held above that the said ledger account Ex. DW1/1 (Colly) had not been maintained properly and further the said ledger account is absolutely unreliable. Further, DW1 during his cross-examination has inter- alia admitted that he had not filed any counter claim against the plaintiff Smt. Manju Garg for a sum of Rs. 4,55,756.79/-. It is thus evident that these submissions also would not help the defendant.
27. Ld. Counsel for the defendant has prayed for the dismissal of the suit on the ground of non compliance of Section 12A of the Commercial Courts Act, 2015. Section 12A (1) of the Commercial Courts Act, 2015 provides to the effect that a CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 35 of 38 suit, which does not contemplate any urgent interim relief under the Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government. The record would show that the present suit was filed on 01.04.2023 and the Non - Starter Report dated 21.02.2023 from South West - DLSA, Dwarka Courts, New Delhi has been proved as Ex. PW1/13. The said report Ex. PW1/13 would show that the pre-institution mediation was applied for by M/s Jai Maa Bhramari Timber (proprietorship concern of the plaintiff) on 06.01.2023 qua the opposite party S. M. Timber (proprietorship concern of the defendant), the dates scheduled for appearance of the opposite party i.e. the defendant were 28.01.2023 & 21.02.2023 and a Non Starter Report was issued as the notices sent to the respondent remained unacknowledged. It would thus show that the plaintiff has duly complied with the Section 12A of the Commercial Courts Act, 2015 before filing the present suit. There is no merits in the said submissions of the ld. Counsel for the defendant.
28. In view of the above said discussion, it is held that the plaintiff is entitled to recover from the defendant the outstanding principal amount of Rs. 10,80,932/- as reflected as outstanding amount in the ledger account Ex. PW1/6 (Colly) and further interest of Rs. 3,84,260/- as interest w.e.f. 05.04.2021 till the date of filing of the suit i.e. the plaintiff has proved that it is entitled to recovery of Rs. 14,65,192/- (Rs. 10,80,932/- + Rs. 3,84,260/-) from the defendant. Issue no. 1 is decided accordingly in favour of plaintiff and against the defendant.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 36 of 38
29. Issue No.2.
"If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP The plaintiff has prayed for recovery of pendente lite and future interest @ 18.00% per annum from the defendant. The said rate of interest @ 18.00% per annum is on a higher side. In the facts and circumstances of the case, a justifiable pendente lite and future rate of interest of 9.00%, per annum, would be just and reasonable. Thus, it is held that the plaintiff is entitled to recover from the defendant a sum of Rs. 14,65,192/- (Rupees fourteen lakh sixty five thousand one hundred ninety two only), alongwith pendente lite and future interest @ 9.00%, per annum, till realization of the entire amount. Issue no.2 is decided accordingly in favour of the plaintiff and against the defendant.30. Issue No. 3
Relief.
In view of the aforesaid discussion, it is held that the plaintiff has proved its case against the defendant. Accordingly, the suit is decreed in favour of the plaintiff and against the defendant for Rs. 14,65,192/- (Rupees fourteen lakh sixty five thousand one hundred ninety two only), alongwith pendente lite and future interest @ 9.00%, per annum, till realization of the entire amount.
31. The plaintiff is also awarded costs of the suit.
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 37 of 38
32. Decree sheet be drawn accordingly.
33. A copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
34. File be consigned to Record Room.
Digitally
signed by
AMIT
Announced in open Court AMIT BANSAL
on 21.08.2024 BANSAL Date:
2024.08.21
16:23:45
+0530
(Amit Bansal)
District Judge (Commercial Court)-03,
South-West, Dwarka Courts, New Delhi
21.08.2024
CS(COMM) 160/2023 Smt. Manju Garg vs. Ratnesh Kumar Mishra Page No. 38 of 38