Delhi District Court
M/S. Ganpati Ad. Corporation vs Sh. Abhinav Aggarwal on 20 January, 2020
Ganpati Ad Corporation V. Abhinav Aggarwal
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 104/2015
UNIQUE CASE ID NO.: 612954/2016
IN THE MATTER OF :
M/s. Ganpati Ad. Corporation,
previously at 824344, Anaj Mandi,
Rani Jhansi Road, near Filmistan Cinema,
Delhi110006
and presently at 8272/73, Anaj Mandi,
Rani Jhansi Road, near Filmistan Cinema,
Delhi110006.
Through its POA Sh. Rakesh Aggarwal ....Plaintiff
VERSUS
Sh. Abhinav Aggarwal, proprietor,
M/s. Kroma Digital Services,
167, 167A, Khasra No. 58/13 & 58/14,
Gali No. 16, Pal Colony,
Near Devi Mandir Chowk,
Village Rithala, Near Hari Om Motor,
Delhi110085.
And also available at
H. No.173174, Ground Floor,
Suit No. 104/2015 Page 1 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
Pocket6, Sector24,
Near Prince Public School,
Rohini, Delhi110085. ....Defendant
SUIT FOR RECOVERY OF RS.5,09,491.37/ (RUPEES FIVE
LACS NINE THOUSAND FOUR HUNDRED NINETY ONE AND
PAISE THIRTY SEVEN ONLY)
Date of institution of the Suit : 19/12/2014
Date on which Judgment was reserved : 17/12/2019
Date of Judgment : 20/01/2020
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate
upon the suit for recovery of Rs.5,09,491.37/ filed by the plaintiff
against the defendant.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of
the present suit, as stated in the plaint, are as under:
(1) The plaintiff is a proprietorship firm of Smt. Santosh
Aggarwal, D/o Sh. Raj Kumar Lohia & wife of Sh. Rakesh
Aggarwal, R/o B39, Friends Colony West, New Delhi, having
its registered office at the aforesaid address. The plaintiff firm
is engaged in the manufacturing and supply of the materials
i.e. printed flex & vinyl materials and its allied products
Suit No. 104/2015 Page 2 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
throughout India. The plaintiff firm is duly registered with the
Department of Trade & Taxes, NCT of Delhi, Vyapar Bhawan,
New Delhi vide TIN no.07700316016.
(2) The present suit has been signed, verified and instituted by
Sh. Rakesh Aggarwal, a General Power of Attorney holder
dated 23.09.2014 passed by the proprietor Smt. Santosh
Aggarwal of plaintiff firm in his favour, therefore, on the
strength of said POA, he is competent person to sign, verify
and institute the present suit.
(3) The defendant approached the plaintiff proprietorship firm
and represented himself as proprietor of the defendant firm
and also represented that the defendant was doing the
business under the name and style of Kroma Digital Services
duly registered with the Department of Trade & Taxes, NCT Of
Delhi, Vyapar Bhawan, New Delhi under TIN no.07250234444
and asked the plaintiff proprietorship firm to supply the
materials i.e. printed Flex & Vinyl Materials and its allied
produced and assured the plaintiff firm that the defendant
would remit the amount of invoices on receipt of delivery of
goods.
(4) Considering the representation and assurances given by the
defendant to be true, the plaintiff proprietorship firm had
started to supply the abovesaid goods from time to time to the
defendant and raised the invoices in the name of M/s. Kroma
Services, the delivery of which were duly obtained by the
Suit No. 104/2015 Page 3 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
defendant well in order and the defendant claimed the
respective relief in VAT against 2A from the Department of
Trade & Taxes, which clearly proves the proper and sound
delivery of the material. It was also agreed that the defendant
would be liable to pay interest @ 24% p.a. on the outstanding
amount, in case he failed to remit the amount of bills within
due date as under:
Sl. no. Invoice no. Dated Amount
1. 2978 02.02.2012 5,113/
2. 2988 09.02.2012 65,087/
3. 3004 15.02.2012 4,203/
4. 3012 20.02.2012 36,397/
5. 3021 24.02.2012 11,7707/
6. 3032 28.02.2012 12,567/
7. 3042 02.03.2012 14,284/
8. 3053 10.03.2012 7,149/
9. 3063 15.03.2012 10,398/
10. 3069 17.03.2012 142/
11. 3076 20.03.2012 31,275/
12. 3081 23.03.2012 9,779/
Suit No. 104/2015 Page 4 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
13. 4008 04.04.2012 2,810/
14. 4024 10.04.2012 30,635/
15. 4031 14.04.2012 10,824/
16. 4041 20.04.2012 10,126/
17. 4043 23.04.2012 6,481/
18. 4054 30.04.2012 46,694/
19. 4072 05.05.2012 12,948/
20. 4080 10.05.2012 22,533/
21. 4088 14.05.2012 6,199/
22. 4096 19.05.2012 21,629/
23. 4105 25.05.2012 24,234/
24. 4114 31.05.2012 29,498/
25. 4125 05.06.2012 2,837/
26. 4126 06.06.2012 5,556/
27. 4136 11.06.2012 153/
28. 4159 25.06.2012 12,089/
29. 4165 29.06.2012 5,952/
30. 4179 05.07.2012 2,329/
Suit No. 104/2015 Page 5 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
31. 4185 09.07.2012 2,608/
32. 4205 20.07.2012 1,038/
33. 4209 21.07.2012 861/
34. 4221 30.07.2012 1,494/
35. 4229 03.08.2012 1,089/
36. 4247 09.08.2012 24,958/
37. 4261 17.08.2012 9,018/
38. 4347 08.10.2012 153/
39. 4417 26.11.2012 4,253/
40. 4419 26.11.2012 18,419/
41. 4438 10.12.2012 3,629/
42. 4467 24.12.2012 3,134/
43. 4470 28.12.2012 1,567/
TOTAL 5,57,929/
(5) However, the defendant used to make partpayment from time
to time and in the sequence of that partpayment, he issued
several cheques in discharge of his part liability and in lieu of
the payment of invoices from time to time drawn on various
Suit No. 104/2015 Page 6 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
banks of the defendant including Axis Bank and Oriental
Bank of Commerce.
(6) The payments, which were made by the defendant, had been
credited in the account of defendant and the plaintiff has
received last payment on 19.03.2013 through cheque no.
46859 for Rs.4,763.00 and after adjusting all the credits, as
per Statement of Account duly maintained by the plaintiff in
due course of its business, a sum of Rs.5,09,491.37 remained
unpaid by the defendant since 19.03.2013 and outstanding
till the date of filing of this case against the defendant and the
defendant failed to remit the same despite repeated requests
and demands made in this behalf,therefore, the defendant
rendered himself liable to pay outstanding amount along with
interest @ 24% p.a.
(7) The plaintiff proprietorship firm also served a legal notice of
demand dated 03.04.2014 sent through speed post and email
on the personal id of the defendant i.e.
[email protected], the notice sent through speed
post was duly served upon the defendant on 05.04.2014 and
12.04.2014 but despite receiving the same, the defendant
neither replied the same nor complied with the said notice.
Hence, the plaintiff was compelled to file the present suit.
CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT
Succinctly, the case of the defendant is as under:
Suit No. 104/2015 Page 7 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
(a) The plaint does not disclose any cause of action and neither
the sum of Rs.5,09,491.37 paisa is due and payable to the
plaintiff nor an interest @ 24% p.a. w.e.f. 31.03.2013 is due
and payable by the defendant to the plaintiff. In fact, false
and fabricated ledger/account statement has been generated
by the plaintiff to file the alleged litigation against the
defendant in order to harass the defendant and to extract
money from the defendant. The contents of the ledger account
filed by the plaintiff are false and fabricated document and it
has not been signed and verified as per law by the Chartered
Accountant ever, otherwise, is inadmissible in law.
(b) The plaintiff has done over charging of bills, which is easily
visible on the perusal of the account statement. When this
fact was pointedout to the plaintiff in the financial year 2011
2012, hence, those over charging of bills was adjusted.
Despite of repeated reminders, the plaintiff flatly refused to
adjust over charging of bills in the year 20122013. Therefore,
the defendant afterwards closed its business with the plaintiff
and requested time and again to the plaintiff to adjust over
charging of bills of financial year 20122013.
(c) On merits, the contents of the plaint have been denied. It was
the plaintiff, who approached the defendant for having
business terms with the defendant and promised the
defendant to supply the goods as per mark and to maintain
regular running accounts during the due course of business,
Suit No. 104/2015 Page 8 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
which the plaintiff failed to do. It has not been denied that
initially, the plaintiff supplied goods from time to time and
raised invoices in the name of proprietorship firm of the
defendant but gradually, the defendant started over charging
the bills from the defendant and when it came to the
knowledge of the defendant, those bills were discounted,
which is clearly highlighted in the account statement of the
plaintiff itself. In the financial year 201213, the plaintiff has
failed to adjust the overcharging of bills and cash entries are
deliberately not entered into the ledger account and flatly
refused to sign payment vouchers of the defendant, as done in
the past
REPLICATION AND ISSUES
The plaintiff has filed the replication controverting the
allegations/ contentions in the Written Statement of the defendant
and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were
framed vide order dated 14.05.2015:
ISSUES
1. Whether the plaintiff is entitled for the decree of Rs.5,09,491/
alongwith pendentelite and future interest @ 24% p.a.?
2. Relief.
EVIDENCE OF THE PLAINTIFF AND DEFENDANT AND
DOCUMENTS RELIED UPON BY THEM:
Suit No. 104/2015 Page 9 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
The plaintiff, in order to prove its case, led plaintiff's
evidence and examined Sh. Rakesh Aggarwal as PW1. PW1 has
filed his evidence by way of affidavit Ex.PW1/A, wherein, he
reiterated and reaffirmed the contents of the plaint. PW1 in his
testimony has relied upon the following documents:
1. GPA dated 23.09.2014 is Ex.PW1/1.
2. Invoices with delivery challans dated 02.02.12 is
Ex.PW1/2.
3. Invoice dated 09.02.2012 is Ex.PW1/3.
4. Invoice dated 15.05.2012 is Ex.PW1/4.
5. Invoice dated 20.02.2012 is Ex.PW1/5.
6. Invoice dated 24.02.2012 is Ex.PW1/6.
7. Invoice dated 28.02.2012 is Ex.PW1/7.
8. Invoice dated 02.03.2012 is Ex.PW1/8.
9. Invoice dated 10.03.2012 is Ex.PW1/9.
10. Invoice dated 15.03.2012 is Ex.PW1/10.
11. Invoice dated 17.03.2012 is Ex.PW1/11.
12. Invoice dated 23.03.2016 is Ex.PW1/12.
13. Invoice dated 04.04.2012 is Ex.PW1/13.
14. Invoice dated 10.04.2012 is Ex.PW1/14.
15. Invoice dated 14.04.2012 is Ex.PW1/15.
16. Invoice dated 20.04.2012 is Ex.PW1/16.
17. Invoice dated 23.04.2012 is Ex.PW1/17.
18. Invoice dated 23.04.2012 is Ex.PW1/18.
19. Invoice dated 30.04.2012 is Ex.PW1/19.
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Ganpati Ad Corporation V. Abhinav Aggarwal
20. Invoice dated 05.05.2012 is Ex.PW1/20.
21. Invoice dated 10.05.2012 is Ex.PW1/21.
22. Invoice dated 14.05.2012 is Ex.PW1/22.
23. Invoice dated 19.05.2012 is Ex.PW1/23.
24. Invoice dated 25.05.2012 is Ex.PW1/24.
25. Invoice dated 31.05.2012 is Ex.PW1/25.
26. Invoice dated 05.06.2012 is Ex.PW1/26.
27. Invoice dated 06.06.2012 is Ex.PW1/27.
28. Invoice dated 11.06.2012 is Ex.PW1/28.
29. Invoice dated 25.06.2012 is Ex.PW1/29.
30. Invoice dated 29.06.2012 is Ex.PW1/30.
31. Invoice dated 05.07.2012 is Ex.PW1/31.
32. Invoice dated 09.07.2012 is Ex.PW1/33.
33. Invoice dated 20.07.2012 is Ex.PW1/34.
34. Invoice dated 21.07.2012 is Ex.PW1/35.
35. Invoice dated 30.07.2012 is Ex.PW1/36.
36. Invoice dated 03.08.2012 is Ex.PW1/37.
37. Invoice dated 09.08.2012 is Ex.PW1/38.
38. Invoice dated 17.08.2012 is Ex.PW1/39.
39. Invoice dated 08.10.2012 is Ex.PW1/40.
40. Invoice no. 4417, dated 26.11.2012 is Ex.PW1/41.
41. Invoice no. 4419, dated 26.11.2012 is Ex.PW1/41.
42. Invoice dated 10.12.2012 is Ex.PW1/42.
43. Invoice dated 24.12.2012 is Ex.PW1/43.
44. Invoice dated 28.12.2012 is Ex.PW1/44.
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Ganpati Ad Corporation V. Abhinav Aggarwal
45. Copy of account statement is Ex.PW1/45.
46. Email dated 10.10.2012 is Ex.PW1/46.
47. Email dated 01.01.2013 is Ex.PW1/47.
48. Photocopy of Passport is MarkA.
49. Email dated 15.04.2013 is Ex.PW1/49.
50. Email dated 20.04.2013 is Ex.PW1/50.
51. Copy of legal notice is Ex.PW1/51.
52. Receipt of notice is Ex.PW1/52.
53. Delivery Report is Ex.PW1/53.
54. Legal notice sent through email is Ex.PW1/54.
The plaintiff also got examined Sh. Manish Aggarwal
and Sh. Rahul Aggarwal as PW2 and PW3, who filed their
respective evidence by way of affidavits Ex.PW2/A and Ex.PW3/A.
The plaintiff also got examined the following summoned
witnesses:
(1) Sh. Atul Singh, Deputy Manager, Axis Bank, Darya Ganj
Branch, New Delhi as PW4, who brought on record the
current account no. 279010200000684 in the name of Kroma
Digital Service w.e.f. 2.1.2012 to 30.12.2013 and the
computer generated copy of the same was Ex.PW4/1 (41
pages - Colly.).
(2) Sh. Amit Kumar, LDC, State Bank of Patiala, Model Basti
Branch, Delhi as PW5, who brought on record the bank
statement of M/s. Ganpati AD Corporation for the financial
Suit No. 104/2015 Page 12 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
year 01.02.2012 to 30.05.2012, which is Ex.PW5/1 (Colly.
23 pages) and Certificate under Section 65B of the Evidence
Act as Ex.PW5/2.
(3) Sh. Ashok Kumar, Assistant Commissioner/ VATO, Trade and
Department, Govt. of NCT of Delhi as PW6, who brought on
record the documents of M/s. Ganpati Ad. Corporation 2A
and 2B for the period January, 2012 to December, 2012
alongwith Certificate under Section 65B of the Evidence Act,
which is Ex.PW6/1 (total pages 4C to 64C) and Ex.PW6/2.
(4) Sh. Atul Singh, Deputy Manager, Axis Bank, Darya Ganj
Branch, New Delhi as PW7, who brought on record the
statement of account of the defendant company namely
Kroma Digital Service bearing account no. 279010200000684
for the period from 01.03.2013 to 31.03.2013 and attested
copy of the same is Ex.PW7/1 and
(5) Sh. Mukesh Kumar, Clerk, Oriental Bank of Commerce,
Darya Ganj Branch, Delhi as PW8, who brought on record
the letter showing therein that M/s. Ganpati Ad Corporation
is not having any bank account in their branch and the same
was Ex.PW8/1. Thereafter, vide separate statement, Ld.
counsel for the plaintiff closed evidence of the plaintiff.
On the other hand, the defendant has examined himself
as DW1. DW1 has filed his evidence by way of affidavit Ex.D1,
wherein he reiterated and reaffirmed the contents of the Written
Suit No. 104/2015 Page 13 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
Statement. DW1 in his testimony has relied upon the following
documents:
1. Payment voucher no. 641, dated 22.06.2011 is Ex.DW1/1.
2. Payment voucher no .1389, dated 26.09.2011 is Ex.DW1/2.
3. Payment note no. 1746, dated 03.11.2011 is Ex.DW1/3.
4. Payment voucher no. 2030, dated 22.11.2011 is Ex.DW1/4
and
5. Payment voucher no. 2421, dated 09.01.2012 is Ex.DW1/5.
Thereafter, vide separate statement, Ld. counsel for the
defendant closed evidence of the defendant.
ISSUEWISE FINDINGS
ISSUE NO.1
1. Whether the plaintiff is entitled for the decree of
Rs.5,09,491/ alongwith pendentelite and future interest @
24% p.a.?
ON THE QUESTION OF MAINTAINABILITY OF SUIT
The Ld. counsel for defendant has argued as under:
(a) That perusal of plaint reveals that plaint had been filed by the
sole proprietorship firm, which does not have legal entity.
(b) That three witnesses of plaintiff in their evidence deposed that
plaintiff firm is a sole proprietorship firm, therefore, the suit
filed on behalf of plaintiff firm is not maintainable as
proprietorship firm does not have a legal entity.
Suit No. 104/2015 Page 14 of 51
Ganpati Ad Corporation V. Abhinav Aggarwal
(c) JUDGMENTS RELIED UPON :
1. PC Advertisement Versus Municipal Corporation 1998
III AD Delhi 133 (Para no.10):
".........Moreover it appears that firstly the suit filed by
the plaintiff is itself defective in the sense the suit has
been filed in the name of M/s P.C advertisement which
is neither a firm nor a registered company nor it is joint
Hindu Family concern which can be said to be covered
under 30 R10 CPC there is no prayer for amendment
to allow the sole proprietor and MR Shyam Malik to
sue in his own name."
"......It appears this plaint does not disclose cause of
action for a number of reason, firstly the plaint
disclose Shyam Malik is sole proprietor of PC
Advertising, but he has not filed suit in his own name
The plaintiff concern is neither a partnership firm nor
HUF concern which would be covered by order 30 rule
10 CPC . Since there is miss description of plaintiff in
the title of the suit, the plaintiff does not fulfill the
requirement of Order 7 Rule 1 nor of Order 30 Rule 10
CPC."
".........Consequently now to allow unspecified alleged
suitable amendments would amount to further abuse
of the process of the court..."
2. Svapn Construction Versus IDPL Employees
Cooperative Group 127 (2006) DLT 80
"............The other objections of the respondent is that
the petition for appointment of an arbitrator under section 11 (6) of Arbitration and Conciliation Act has been filed by M/s Svapn Construction which is a sole proprietorship concern, which is not legal entity and Suit No. 104/2015 Page 15 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal consequently the petition is not maintainable . The petition filed in the name of sole proprietor ship firm which is neither registered company nor a joint entity Legal proceedings in name of a sole proprietorship concern which is not a legal entity is not maintainable........"
".......If the sole proprietorship firm is not a legal entity, the petition should have being filed by the sole proprietor in his name on behalf of sole proprietorship firm and not in the name of sole proprietorship firm. Considering it from any point the inevitable inference is that a petition in the name of sole proprietorship firm's name which is not a legal entity is not maintainable. Therefore dismissed."
3. Miraj Marketing Corporation Vs. Vishaka Engineering & Another passed by Hon'ble High Court of Delhi in RFA no. 349 of 2003 on 23.11.2004 ".............It is an admitted position in the plaint that the plaintiff is a proprietorship firm. There is however, no statement made in the plaint by the plaintiff as to who is the proprietor of the firm. Shri Amitabh is described in cause title of the plaint only as an authorized representative. The name of sole proprietor of sole proprietorship firm not given in plaint...."
"Even in the amended plaint suit was shown to have been instituted in the name of the firm. A sole proprietorship firm is not a legal entity which can sue or be sued in its own name. Such suit relating to or against the affairs or claims of a sole proprietorship concern has to be brought or made against the person who is a sole proprietor of the firm . The plaintiff was Suit No. 104/2015 Page 16 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal described to be a proprietorship firm and represented through Shri Amitabh Sharma."
"In that view and the matter, we agree with the findings and conclusions recorded by the trial court that the suit was not instituted by a duly authorized person. Accordingly, we find no infirmity in the judgment and order passed by the learned court dismissing the suit on the ground that the suit is not properly instituted."
FINDINGS AND CONCLUSIONS OF THIS COURT The aforesaid Judgments of Hon'ble High Court has not taken into consideration the principles laid down by Hon'ble Supreme Court in Ashok Transport Agency v. Awadhesh Kumar & Another (1998) 5 SCC 567 and the same was followed in the case titled as M/s. Bhagwati Vanaspati Traders Versus Senior Superintendent of Post Offices, Meerut passed in Civil Appeal no.4854 of 2009 on 10.10.2014. Para no.8 of the JudgmentM/s. Bhagwati Vanaspati (Supra) passed by Hon'ble Supreme Court is reproduced as under for apt understanding: "8. To overcome the mandate of rule 17 extracted hereinabove, as also, the decision rendered by this Court in Raja Prameeelamma case (supra), and the proposition of law declared in Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), learned counsel for the appellant placed emphatic reliance on the decision of this Court in Ashok Transport Agency v. Awadhesh Kumar & Another Suit No. 104/2015 Page 17 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal (1998) 5 SCC 567. He invited our attention to the following observations recorded therein: "6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Suit No. 104/2015 Page 18 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business "insofar as the nature of such case permits". This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case."
(emphasis is ours) Based on the observations recorded in the aforesaid judgment, the second contention advanced by the learned counsel for the appellant was, that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name on behalf of an individual. It was contended, that truthfully only one individual is the owner of a sole proprietorship concern. As such, according to learned counsel, the name of the sole proprietorship concern, can again be substituted with the name of the sole proprietor......"
(Portions are bolded in order to highlight) The para no.1 of the Plaint clearly reveals that plaintiff is a proprietorship firm of Smt. Santosh Aggarwal, D/o Shri Raj Kumar Lohia and wife of Shri Rakesh Aggarwal. The defendant has not disputed the said fact. It is not the case that name of the proprietor of the proprietorship concern is unknown. The plaintiff Suit No. 104/2015 Page 19 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal has categorically averred regarding the name of the proprietor and the same is not disputed by the defendant. Per Contra, the defendant has raised his argument on the fact that Smt. Santosh Aggarwal is the proprietor of plaintiff firm.
The aforesaid argument of Ld. counsel for defendant that the suit is not maintainable in the name of proprietorship concern sans merit and the same is hereby rejected. ON THE QUESTION OF POWER OF ATTORNEY The Ld. counsel for defendant has raised the issue that the plaintiff has not been able to prove the GPA and in this context, it has been argued as under:
(a) Stamp paper for the GPA is bought on 23.09.2014 and the GPA had been signed by the executants and acceptor on 22.09.2014.
(b) The said GPA is not being notarized by the authorized notary.
The executants of the GPA not being duly signed by witness, hence void abinitio.
(c) JUDGMENTS RELIED UPON :
1. AIR 1999 SC 1441 Vidhyadhar Vs Manikrao & Another decided on 17.03.1999 by Hon'ble Supreme Court "........Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be crossed examined by the other side a presumption would arise that the case set up by him is not correct as has been Suit No. 104/2015 Page 20 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal held in a series of decisions passed by various High courts...."
2. Janki Vashdeo Bhojwani & Another Vs Indusind Bank Ltd. & Others Appeal (Civil) 6790 of 2003 decided on 06.12.2004 by Hon'ble Supreme Court "......The general power of attorney holder can appear plead and act on behalf of the party but he cannot become a witness on behalf of the party....."
".......It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness in his personnel capacity. Whatever knowledge he has of a case can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party......"
3. S. Kesari Hanuman Goud Vs Anjum Jehan & others Civil Appeal Nos. 28852887 of 2005 with Civil Appeal Nos. 2888 & 4459 of 2005 decided on 10.04.2013 by Hon'ble Supreme Court ".........It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal Provisions of Order III Rule 1 & 2 CPC empowers the holder of the GPA to act on behalf of the principal. The word acts employed therein is confined only to acts done by the GPA holder in exercise of the power granted to him by virtue of the instrument, The term acts, would not include deposing in place and instead of the principal........"
The Ld. counsel for plaintiff has argued as under: Suit No. 104/2015 Page 21 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal
(a) It is absolutely wrong to quote that while delegating General Power of Attorney to Sh. Rakesh Aggarwal, sole proprietor, Smt. Santosh Aggarwal has not conferred him with the power to depose on oath on her behalf and her proprietorship firm M/s. Ganpati Ad. Corpn. which is clearly mentioned in POA dated 23.09.2014 under term no.3 that POA is fully authorized to depose on behalf of proprietor as well as her firm M/s. Ganpati Ad. Corpn. and under his evidence, POA has clearly mentioned that he is fully aware of the facts & circumstances of the present matter, therefore, he is fully capable of signing, verifying & instituting & deposing in present case.
(b) POA is written authority by one to another to act on its behalf specifying the details upto which he can act on its behalf and the Notary only authenticates the identity of the persons signing the document, however, unnotarized POA is a valid authority unless it is challenged by the Executor or Acceptor and in this case none has challenged, therefore, it is valid. The witness also plays role of authenticating the identity of the persons signing the same and in any way, if the same is not witnessed by the witnesses and if it is not challenged by the parties to it, the same is a valid document and has nothing questionable by the defendant on technical grounds.
(c) As such, the so called major lacuna in GPA pointedout by Ld. counsel on behalf of defendant is wrong as she herself has Suit No. 104/2015 Page 22 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal admitted that the stamp paper was purchased on 22.09.2014, whereas, the GPA was signed and executed on 23.09.2014, even otherwise, if the stamp paper was purchased on a later date, then also, it is a valid document as at the time of executing the document, stamp papers may not be available and to give them a legal shape, it may have been purchased at a later stage. GPA is an agreement between two parties and unless they don't have any objection, the defendant cannot take it to its advantage on technical grounds and does not provide any chance to defendant to usurp the hardearned money of the plaintiff.
FINDINGS AND CONCLUSIONS OF THIS COURT First of all, the evidence is required to be given on the issues agitated by the parties at the time of framing of issues. The defendant has not raised the issue of authorization of Shri Rakesh Aggarwal at the time of framing of issues and the plaintiff was not even put to the notice that plaintiff is required to lead the evidence on such issue. The defendant has also not filed any application for addition of issues in terms of Order 14 Rule 5 CPC. If the defendant no.1 was having any grievance qua the General Power of Attorney, then, it was incumbent upon defendant to file the appropriate application and get the issue framed in respect of the authorization so that the plaintiff will be given proper opportunity in order to prove the issue. Furthermore, the Power of Attorney holder is none other than the husband of Smt. Santosh Aggarwal, who is Suit No. 104/2015 Page 23 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal proprietor of the plaintiff concern. It is apposite to reproduce Section120 of the Indian Evidence Act: "Section 120 Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness."
The defendant has relied upon the Judgments, which were referred in the case of Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha Civil Appeal Nos. 147148 decided on 05.10.2010 passed by Hon'ble Supreme Court. In the said Judgment, the Hon'ble Supreme Court has culledout the following principles after referring the various Judgments, including the Judgments referred by the defendant: "12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
Suit No. 104/2015 Page 24 of 51Ganpati Ad Corporation V. Abhinav Aggarwal
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
Suit No. 104/2015 Page 25 of 51Ganpati Ad Corporation V. Abhinav Aggarwal
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
(Portions are bolded in order to highlight) In terms of the aforesaid Judgment, the defendant has neither in the Written Statement nor in the evidence of PW1, during his cross examination, had contended that PW1 has no personal knowledge about the facts of the case. During cross examination, PW1 has categorically stated that his wife is a sole Suit No. 104/2015 Page 26 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal proprietor of the firm on papers but she does not know about the business and then volunteered that she knows little bit about the business. The PW1 has been able to prove on record the Power of Attorney and he is competent to file, institute and prosecute the case on behalf of the plaintiff concern, which is actually the concern of his wife. The evidence is not only given by PW1 i.e. the husband of Smt. Santosh Aggarwal, but also by her son PW2, who is Manager of the plaintiff concern and also by her another son PW3, who is the Accountant of the plaintiff concern. The argument, as raised by defendant, on the question of GPA or deposition by Power of Attorney Holder, sans merit and is hereby rejected. ON THE QUESTION OF ENTITLEMENT OF THE PLAINTIFF ARGUMENTS OF THE DEFENDANT The following Bills/Challans are either overcharged and goods not supplied but charged: (1) Bill No 3063: Size difference The quantity in the bill has been over calculated in comparison with Challan, 4406, 4418, 4423 So there is a difference of Rs.214/.
(2) Bill No. 4209: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.861/ (3) Bill no.: 4205T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.1038/ Suit No. 104/2015 Page 27 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal (4) Bill no.: 4185T: Fake Challan Challan is fake this transaction did not happen. (See in challan 4948 they are saying "Reprint due to our fault" and still, they mentioned the same in the bill. So there is an overcharged Amount of Rs.2608/ (5) Bill no.: 4179T: overcharging The wrong overpriced item mentioned, "eco vinyl print @ 22.50" in the bill whereas Purchased item in challan was different "solvent vinyl print @13" (see Challan 4996)so there is an overcharged Amount of Rs.1401/.
(6) Bill no.: 4165T: 1 fake challan & overcharging Challan no 4890 is fake this transaction did not happen In challan no. 4900 The wrong overpriced item mentioned "eco vinyl print @ 22.50" in the Bill whereas purchased item was different "solvent flex @7/" So there is an overcharged Amount of Rs.4429/.
(7) Bill no.: 4159T: overcharging & Size Difference The quantity in the bill has been over calculated in comparison with Challan 4884 Item 1 & 2 ok in the bill but item 3 is wrong overpriced item mentioned "eco vinyl print @ 22.50" in the bill whereas purchased item in challan was Different "solvent vinyl print@13"( See challan 4884) so there is an overcharged Amount of Rs. 3368/.
(8) Bill No. 4136T: Fake Challan Challan is fake this transaction did not happen. So there is an overcharged Amount of Rs.153/ Suit No. 104/2015 Page 28 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal (9) Bill No. 4126T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.5556/ (10) Bill no.: 4125T: 1 fake challan & overcharging Challan no. 4802 is fake this transaction did not happen In challan no. 4777 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in the Bill whereas purchased item was different "solvent vinyl print @13/". In challan no. 4780 The item mentioned eco vinyl print @ 22.50 is correctly charged (see challan) So there is an overcharged Amount of Rs.2213/.
(11) Bill no.: 4114T: 1 fake challan, size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans Challan no 4754 is fake this transaction did not happen. In challan no. 4771,4772 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print @13/". Challan no 4786 is fake please note that challan no. 4780 is billed on 5th June in bill no. 4125 & this challan in created in a previous date i.e. 31st may and that too with no signatureSo there is an overcharged Amount of Rs.18516/.
(12) Bill no.: 4105T: 1 fake challan, size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no 4725 is fake this transaction did not happen. In challan no. 4749 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent Suit No. 104/2015 Page 29 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal vinyl print@13/"(please see challan) So there is an overcharged Amount of Rs.10758/.
(13) Bill No. 4096T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.21590/.
(14) Bill no.: 4088T: 1 fake challan, size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no 4676 is fake this transaction did not happen. In challan no. 4684 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"(see challan) So there is an overcharged Amount of Rs.385/.
(15) Bill no.: 4080T: 1 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no 4674 is fake this transaction did not happen. In challan no. 4663,4666 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"(see challan)So there is an overcharged Amount of Rs.5835/.
(16) Bill no.: 4072T: 3 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no 4644,4647,4651 are fake this transaction did not happen. In challan no.4657 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"(please see challan). In Suit No. 104/2015 Page 30 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal challan no. 4659 The wrong overpriced item mentioned "eco vinyl print @ 22.50" in the Bill whereas purchased item was different "solvent flex @7/"So there is an overcharged Amount of Rs.7642/.
(17) Bill No. 3069T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.142/.
(18) Bill no.: 3076T: 3 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans Challan no 3862, 3908, 3914 are fake this transaction did not happen So there is an overcharged Amount of Rs.28043/.
(19) Bill no.: 3081T: Size difference The quantity in the bill has been over calculated in comparison with Challans So there is an overcharged Amount of Rs.1/ (20) Bill no.: 4008T: Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. In challan no. 4511 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"
(please see challan) So there is an overcharged Amount of Rs.914/.
(21) Bill no.: 4024T: 1 fake challan& overcharging Challan no 4528 is fake this transaction did not happen. In challan no.
4526, 4533, 4544 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was Suit No. 104/2015 Page 31 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal different "solvent vinyl print@13/ "(see challan) So there is an overcharged Amount of Rs.11430/.
(22) Bill no.: 4031T: Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. In challan no. 4553, 4556, 4560, 4566 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in the Bill whereas purchased item was different "solvent vinyl print@13/" (see challan) So there is an overcharged Amount of Rs.2830/.
(23) Bill no.: 4041T: 1 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no 4592 is fake this transaction did not happen. In challan no. 4583, 4578, 4573 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"(see challan) So there is an overcharged Amount of Rs.3372/.
(24) Bill no.: 4043T: 1 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans Challan no 4598 is fake this transaction did not happen. In challan no. 4601 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/" (see challan) So there is an overcharged Amount of Rs.4829/ (25) Bill no.: 4054T: 2 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no Suit No. 104/2015 Page 32 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal 4631,4626 is fake this transaction did not happen. In challan no. 4627,4622 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"(see challan) So there is an overcharged Amount of Rs.32863/.
(26) Bill No. 3012T: Fake Challan Challan is fake this transaction did not happen. So there is an overcharged Amount of Rs.36397/.
(27) Bill no.: 3021T: 1 fabricated challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. Challan no 4322 is fabricated converted inches to feet to increase the quantity. (see challan). In challan no. 4333, 4323 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/" (see challan) So there is an overcharged Amount of Rs.9326/.
(28) Bill no.: 3032T: Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans (please see challan no. 4345,4353). The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/" So there is an overcharged Amount of Rs.1042/ (29) Bill no.: 3042T: 1 fake challan, Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans Challan no 4369 is fake this transaction did not happen. In challan no. 4368 Suit No. 104/2015 Page 33 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal The wrong overpriced item mentioned "reflective print @ 50/ in the Bill whereas purchased item was different "solvent vinyl print@13/"(see challan) So there is an overcharged Amount of Rs.12346/.
(30) Bill no.: 3053T: Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans In challan no. 4383,4394 The wrong overpriced item mentioned "eco vinyl print @ 22.50/ in The Bill whereas purchased item was different "solvent vinyl print@13/" (see challan) So there is an overcharged Amount of Rs.976/.
(31) Bill no.: 2978T: Size difference & overcharging The quantity in the bill has been over calculated in comparison with Challans. In challan no. 4215 The wrong overpriced item mentioned "eco vinyl print @ 22.50 in The Bill whereas purchased item was different "solvent vinyl print@13/"(see challan) so there is an overcharged Amount of Rs.982/.
(32) Bill no.: 2988T: 2 fake challan & overcharging Challan no 4222,4246 are fake this transaction did not happen. In challan no. 4240, 4230, 4246 The rate for the item is wrongly overcharged at Rs.25/ instead of Rs.23/ So there is an overcharged Amount of Rs.8618/.
(33) Bill no.: 3004T: 3 fake challan, Size difference The quantity in the bill has been over calculated in comparison with ChallansChallan no 4257,4277,4281 are fake this transaction did not happen So there is a difference Amount of Rs.1910/ Suit No. 104/2015 Page 34 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal (34) Bill No. 4221T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.1494/.
(35) Bill No. 4229T: Fake Transaction This transaction did not happen. So there is an overcharged Amount of Rs.1089/ (36) Bill No. 4247T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.24958/.
(37) Bill No. 4261T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.9018/.
(38) Bill No. 4347T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.153/.
(39) Bill No. 4417T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.4253/ (40) Bill No. 4419T: Fake Challan Challan is fake this transaction did not happen So there is an overcharged Amount of Rs.18419/.
(41) Bill no.: 4438T: Size difference The quantity in the bill has been over calculated in comparison with Challans So there is a difference Amount of Rs.7/.
Suit No. 104/2015 Page 35 of 51Ganpati Ad Corporation V. Abhinav Aggarwal (42) Bill no.: 4467T: overcharging In challan no. 721,722 The wrong overpriced item mentioned "eco vinyl print @ 23/ & matt Lamination vinyl @30/" in The Bill whereas purchased item was different "solvent vinyl print@13/" (see challan) So there is an overcharged Amount of Rs.1559/. (43) Bill No. 4229T: Fake Transaction This transaction did not happen So there is an overcharged Amount of Rs.1567/.
(44) Cash Payments & jobwork done for them :1,75,625/ 22.6.11 paid cash 15,000 26.9.11 paid cash 3,100 3.11.11 paid cash 15,000 22.11.11 paid cash 30,000 9.1.12 paid cash 40,000 Paid cash 15,000 Paid cash 22,000 Passion cheese jobwork 35,525 TOTAL Account:
Due Claiming: 5,09,491 Overcharged: 3,05,105 Amt paid + job work: 1,75,625 Actual Amount Due 28,761/ FINDINGS AND CONCLUSIONS OF THIS COURT In paras no. 3 & 4 of the plaint, the plaintiff has categorically mentioned that Kroma Digital Services is duly registered with the Department of Trade & Taxes, NCT of Delhi and defendant, who is the proprietor, has claimed the respective relief in Suit No. 104/2015 Page 36 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal VAT against Form 2A from the Department of Trade & Taxes, which clearly proves the proper and sound delivery of the material. In para no.4, the plaintiff has also mentioned the entire details of the Invoices with Invoice no., date and amount. The defendant has filed the combined reply to paras no.3 to 7 and after generally denying the said paras, it is alleged that it is not denied that plaintiff initially supplied goods from time to time and raised invoices in the name of proprietorship firm of the defendant but gradually, the defendant started overcharging the bills from the defendant and when it came to the knowledge of defendant, those bill were discounted, which have been clearly highlighted in the Account Statement of the plaintiff itself. It is also alleged by defendant that in the Financial Year 20122013, the plaintiff has failed to adjust the overcharging of bills and deliberately not entered cash entries into the ledger account and flatly refused to sign payment vouchers of the defendant, as done in the past. It is further averred that defendant had made various requests and reminders to the plaintiff to sign payment vouchers and to give Ledger Account Statement to the defendant, which has been generated in due course of business, which the plaintiff failed to do. The Written Statement was filed by the defendant on 28.02.2015.
The defendant in the said paras has nowhere specifically denied that the defendant has not taken any benefit from the Department of Trade & Taxes for the bills mentioned in para no.4 of the plaint. The defendant has also nowhere alleged that he has not Suit No. 104/2015 Page 37 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal received any bills during the course of dealings, as detailed in para no.4 of the Plaint. On the contrary, the defendant has mentioned that the same were overcharged. The plaintiff has already filed the copies of the invoices and the Statement of Account alongwith the suit. In the Written Statement, the defendant has failed to even pointout the invoices, which were overcharged by the plaintiff. The defendant has mentioned that defendant had made various requests and reminders to the plaintiff but the defendant has not placed even a single document on the record that defendant had objected to the plaintiff that the bills are overcharged. In the said pleadings, it was nowhere mentioned by the defendant that fake challans were prepared by plaintiff in order to overcharge the bills. The pleadings of the defendant are bereft of particulars and it is evasive and vague pleadings.
The perusal of the crossexamination of PW1 reveals that defendant has not confronted PW1 with any of the invoices in order to lay the foundation that invoices were overcharged and the defendant has also not put any question to PW1 regarding the reason of overcharging in order to seek the explanation of PW1. The defendant has not even put single question to PW1 that challans, which were relied upon by plaintiff, are fake challans and/or in the challans, the rate or quality is different from the rate or quality of product mentioned in the invoices. There is also no question, which was put to PW1 that invoices have been manipulated by the plaintiff and the same are not in consonance Suit No. 104/2015 Page 38 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal with the challans relied upon by the plaintiff. The defendant, in general terms, has given the suggestion that when it came to the knowledge of defendant about overcharging of bill, the defendant requested the plaintiff to adjust and the said suggestion was denied. Other than the said question, the defendant has not asked the question to PW1 to elicit out the explanation of overcharging of the bills, as per the case of defendant.
The PW2, who is the Manager of the plaintiff concern has deposed on the same lines, which were deposed by PW1. The perusal of crossexamination of PW2 reveals that PW2 has stated overcharged transactions are looked after by the Accountant of the plaintiff firm. However, it is stated by PW2 that defendant did not complaint about overcharges at any point of time despite sending statement on email ID of the defendant. The defendant has not put any question to PW2 that no Statement of Account was sent by the plaintiff to defendant on his email ID.
The PW3, who is the Accountant, has appeared and in answer to preparation of challans, it was categorically mentioned that challans are being created either by the employees working in the firm or by him being Accountant. The perusal of the cross examination of PW3 reveals that defendant has not confronted PW3 with any of the invoices in order to lay the foundation that the invoices were overcharged and the defendant has also not put any question to PW3 regarding the reason of overcharging in order to seek the explanation of PW3. The defendant has not even put Suit No. 104/2015 Page 39 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal single question to PW3 that challans, which were relied upon by plaintiff, are fake challans and/or in the challans, the rate or quality is different from the rate or quality of product mentioned in the invoices. There is also no question, which was put to PW3 that invoices have been manipulated by the plaintiff and the same are not in consonance with the challans relied upon by the plaintiff. The defendant, in general terms, has given the suggestion that 1) since the plaintiff was caught overcharging the bills, hence, the defendant refused to do the business with the plaintiff firm and 2) the plaintiff firm refused to adjust the overcharged dues. The said suggestions were denied. Other than the said questions, the defendant has not asked the question to the PW3 to elicit out the explanation of the invoices and challans.
The defendant has examined only himself and in his examination also, the defendant has, in general terms, mentioned about overcharging of invoices and/or fabrication of invoices and/or challans but there is no specific mention about the invoices and challans.
When the defendant scrupulously and with forensic tenacity could have mentioned the differences during the arguments, then, what stopped the defendant to put the aforesaid specific question regarding invoices and challans to PW1 to PW3 but no such questions were put to them. The defendant could have specifically mentioned regarding invoices and challans during his examinationinchief but the same was also not done by the Suit No. 104/2015 Page 40 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal defendant. The Ld. counsel for the plaintiff has argued as under in respect of invoices/challans :
(i) Out of 43 nos. invoices, defendant has chosen to label 16 nos.
invoices as fake, which is an astonishing & surprising figure, therefore, according to defence, Rs.1,29,335/ is added to the Account Statement without any transaction and plaintiff is dumb to pay tax VAT @ 12.5% i.e. Rs.16,000/ approximately to Department of Trade & Taxes just to claim amount of invoices.
(ii) Out of balance 27 invoices, the defendant also objects on most of the challans as fake, as no such transaction took place besides all other invoices are overcharged and making it technical by claiming rates of one type as less and other higher but main question, why he did not object at instant time and why he took the same bill into his account for claiming benefit of VAT?
(iii) In one bill no. 4185T challan 4948 'reprint due to our fault' has been referred to only one item out of other items (and that item is not charged also) but defendant is making complete challan and invoice as fake and overcharged and also terming it as no such transaction. The honesty and sincerity of plaintiff may be averred from the fact that it is accepting the mistake of its account, therefore, not charging it, but challan is made as the same has been delivered to the defendant.
Suit No. 104/2015 Page 41 of 51Ganpati Ad Corporation V. Abhinav Aggarwal
(iv) In most of other bills, the defendant is taking plea of over charging of price as item of lesser quality was purchased & delivered but invoiced at higher rate. First of all, it is an acceptance of the challan and invoice but to reduce its liability, defendant is making false statement as to quality, whereas, in the invoice, it is only Vinyl Printing mentioned, whereas, in the Challan, it is the quantity of items, which is difficult to establish that what quality of material was challaned and invoiced, therefore, it only proves that certain material at the rate of invoice was delivered to defendant. Still, if we randomly check one invoice 4114T with challans 4754, 4768, 4771, 4772, 4786, the defendant outrightly rejects challan 4754 because of no reason and term it fake, then, same plea of overcharging as item 'eco vinyl print' @ 22.5p.sq.ft. was invoiced, whereas, purchased item was 'solvent vinyl print' @13p.sq.ft. If we closely go through the challan 4772, there is no mention of it to be Eco or Solvent, in the challan 4786, there is no mention of it to be Eco or Solvent, however, F/L mentioned, in the challan 4768, there is mention of oneway vision, in the challan 4771, there is no mention of it to be Eco or Solvent besides F/L and oneway vision. All other items are invoiced and accepted, as per terms but Vinyl is disputed as to matter of Eco or Solvent. This issue has been falsely created by defendant for his own benefit, Suit No. 104/2015 Page 42 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal otherwise, if all other items are priced as per agreed terms, how this item could be overcharged.
In this case, it is not the case of defendant that there was no transaction between the parties and as per the Written Statement, the plaintiff has overcharged the bills and not reflecting certain cash payment. Noone has stopped the defendant to have produced his own Statement of Account. The defendant was doing the business and he must also be maintaining the Statement of Account, but the defendant has neither produced his Statement of Accounts nor VAT Statement at any point of time. In terms of Order 8 Rule 1A CPC, the documents were required to be produced at the time of filing of the Written Statement and thereafter, the defendant could have produced with the leave of the Court. The defendant could have placed his own record i.e. Statement of Account and VAT account with the Written Statement, but the defendant has not produced the said account. The defendant has not mentioned in the Written Statement that his Accountant had expired and for this reason, he could not produce his Statement of Account and VAT accounts. The plaintiff has put the specific question to DW1 that can you tell against which bill/bills you have received the input credits from the VAT Department and in answer to this question, he has deposed that after verification from his Chartered Accountant, he could say, however, thereafter, he has stated that he cannot produce any account regarding the same as his uncle, who used to Suit No. 104/2015 Page 43 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal maintain the record, has already expired and the record was available with him. The defendant has tried to give evasive answers to production of input credits received from VAT Department. In the Written Statement, there is no denial by the defendant that the defendant has not taken input credits. The defendant appears to have withheld the best evidence in the nature of Statement of Accounts and accounts of the VAT Department. The Ld. counsel for the plaintiff has further argued as under: (1) The plaintiff has clarified that there is no reverse entry towards overcharging but it was towards the credit notes issued for completing the sales targets and plaintiff has been very honest and sincere in its business policies that when defendant's purchase crossed a particular slab, he was credited with the benefit of completing preset sales target, so, no overcharging is there in bills. Even if it was there, he could have settled the account by releasing the balance payment, but records show that it was not done by defendant rather he chose to close his business dealings without settling the accounts.
(2) No bills and challans can be fake when same bills have been taken into account by the defendant thereby Forms 2A & 2B under DVAT matched, otherwise, the department of Trade & Taxes would have implied serious penalties on both parties, which did not happen in this case. Besides, it is relevant to note that any business house would make a fake invoice and Suit No. 104/2015 Page 44 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal that too, Tax Paid after submitting 12.5% VAT in favor of defendant considering the payment not forthcoming, that way most of business houses would have flourished by fake invoices.
(3) The defendant has objections in all the 43 nos. invoices submitted along plaint, but he never bothered to settle account with plaintiff and now, he is able to pinpoint figures upto calculation of overcharge of amount of Rs.1/ & Rs.7/ too (Bills no. 3081, 4419) even after a gap of more than 07 years. During crossexamination, he is confronted to a question, whether your tax assessment was completed during this period, he shows his unawareness on the ground that the matter was with his Chartered Accountant, who is not contactable, therefore, he is not having details, which clearly shows the wickedness of defendant.
(4) The factor of payments made by defendant -
i. The defendant did not mentioned the last 2 payments of Rs.15,000/ & Rs.22,000/ both undated and some Passion Cheese jobwork of Rs.35525/ to plaintiff in its WS neither submitted it in its defence then how can it now claim as payment (or credit) in plaintiff account. Besides, plaintiff is not shown copy of these receipts and jobwork done for plaintiff, then how can defendant use it in its defence now. It is totally wrong and false and cannot be taken into account.
Suit No. 104/2015 Page 45 of 51Ganpati Ad Corporation V. Abhinav Aggarwal ii. Secondly, the payment vouchers as submitted in its defence with WS are totally fake and fabricated as is clear from face-
a. Payment voucher 641 dated 22.06.2011 of Rs.15,000/ to some Shahzad never associated with plaintiff besides no revenue stamp.
b. Payment voucher 1389 dated 26.09.2011 of Rs.3,100/ to someone but to whom as there is no receiver no revenue stamp.
c. Payment voucher 1746 dated 03.11.2011 of Rs.15,000/ to some Shahzad never associated with plaintiff besides revenue stamp has been affixed later on some other signatures.
d. Payment voucher 2030 dated 22.11.2011 of Rs.30,000/ to some Rahul who is PW3 never received such amount and is clear from passport of Rahul submitted by plaintiff where signatures do not tally.
e. Payment voucher 2421 dated 09.01.2012 of Rs.15,000/ to some Shahzad never associated with plaintiff besides revenue stamp has been fixed later.
iii. Therefore, even if taken into consideration, the defendant himself is agreeing that actual payment due is Rs.28,761/ + Rs.37,000/ (2 last undated payments) + Rs.35525/ (some job work) totaling to Rs. 1,01,286/ is to be paid to plaintiff, however, same is also incorrect and not acceptable to plaintiff as defendant is taking Suit No. 104/2015 Page 46 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal shelter of false pleas and documents to escape from his liability of the amount due towards plaintiff with interest and penalties for nonpayment.
The defendant has relied upon the five vouchers and submitted that the defendant has made the payment in cash to the employee or associated with plaintiff but during the cross examination of PW1 to PW3, the defendant has not confronted the said vouchers to PW1 to PW3 or put even single question to PW1 to PW3 regarding such vouchers. The defendant by his own self serving evidence wants to prove the said vouchers and there is no independent evidence in order to prove the said vouchers. The defendant has miserably failed to prove five vouchers totaling to the tune of Rs.78,100/, which the defendant has relied upon his evidence.
The defendant has averred that defendant had made various requests and reminders to the plaintiff to sign payment vouchers and to give Ledger Account Statement to the defendant, which has been generated in due course of business, which the plaintiff failed to do. However, there is not a single document which has been produced on record to show that the defendant has called upon the plaintiff to sign payment vouchers or to give ledger account. The defendant has also failed to show any single document, whereby, he has objected to the plaintiff that he has overcharged invoices/bills.
Suit No. 104/2015 Page 47 of 51Ganpati Ad Corporation V. Abhinav Aggarwal There is another important fact that the plaintiff was served with the Legal Notice dated 03.04.2014 Ex.PW1/51 and the delivery reports are Ex. PW1/52 and Ex.PW1/53 alongwith postal receipts. The factum of service of the Legal Notice and delivery reports are deposed by PW1 and PW2 in their respective evidences. It is also deposed that Notice was served through email ID of the defendant i.e. [email protected]. The defendant has nowhere crossexamined either PW1 or PW2 on the service of notice. The defendant has also not crossexamined that the delivery reports Exhibit PW1/52 and Ex. PW1/53 are forged and fabricated. The factum of the service of Legal Notice is not at all disputed by the defendant during the crossexamination of PW1 and PW2. The delivery reports clearly show that the Legal Notice was duly served upon the defendant. The defendant, during his crossexamination, has endorsed the aforesaid email ID. The principle of Section 27 of the General Clauses Act is also applicable. It is very strange that when the plaintiff was overcharging the amount, then, why the defendant has remained silent and had not taken any action against the plaintiff. In case, the account of the plaintiff was fictitious and fabricated, then, the defendant ought to have jumped up after receipt of notice and immediately taken action against the plaintiff. It is settled law that if the plaintiff, before filing the suit, makes serious assertion in the Notice to the defendant, then, the defendant must not remain silent by ignoring to reply, if he does so, an adverse inference may be raised against him. In Suit No. 104/2015 Page 48 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit Kalra and Another 98 (2002) DLT 573 (DB), wherein, Division Bench of our Hon'ble High Court quoted with approval the authority Kalu Ram Vs. Sita Ram, 1980 RLR (Note) 44, of our Hon'ble High Court and it has been observed: "Observations of Kalu Ram's case (supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices / bills in question. But the learned Trial Court failed to draw inference against the respondents."
(Portion bolded in order to highlight) The plaintiff has been able to prove by cogent, convincing and authentic oral and documentary evidence that the defendant was liable to pay the principal amount of Rs.5,09,491.37/.
QUESTION OF INTEREST The plaintiff has claimed interest @ 24% per annum. The Hon'ble Division Bench of Hon'ble High Court of Delhi in the case of Pt. Munshi Ram & Associates (P) Ltd. V. DDA, 2010 SCC Online Del 2444 that higher rates of interest, which are against public policy, can be struck down by the Court by finding such rates of interest to be against the public policy. Any Contract, which is against the public policy, is void as Section23 of the Suit No. 104/2015 Page 49 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal Indian Contract Act, 1872. The said Judgment was also relied upon by Hon'ble Single Bench of the Hon'ble High Court in the case bearing R.F.A. no.823 of 2004 titled as Shri Sanjay Mittal Versus Sunil Jain decided on 07.12.2018. The Hon'ble Single Bench has granted 9% p.a. interest instead of 24% per annum i.e. 2% per month. Section34 CPC postulates and envisages the pendentelite interest at any rate not exceeding 6% and future interest at any rate not exceeding the rate at which nationalized banks advance loan.
Keeping in mind the mandate of the said proposition, interest of justice would be served if plaintiff is granted simple interest @ 9% per annum from 19.03.2013 till filing of case and pendentlite simple interest @ 6% per annum and future simple interest @ 9% per annum till its realization.
Accordingly, in view of discussions made hereinabove, the issue no.1 is decided in favour of the plaintiff and against the defendant in the aforesaid terms.
RELIEF In view of the findings, as adumbrated above, I hereby pass the following FINAL ORDER
(i) a decree of 5,09,491.37/ is passed in favour of the plaintiff and against the defendant alongwith simple interest @ 9% per annum from 19.03.2013 till filing of the case and pendentlite Suit No. 104/2015 Page 50 of 51 Ganpati Ad Corporation V. Abhinav Aggarwal simple interest @ 6% per annum and future simple interest @ 9% per annum till its realization.
(ii) The cost of the suit is also awarded in favour of the plaintiff and against the defendant.
Decreesheet be prepared accordingly.
File be consigned to Record Room after due compliance. Announced in the open court on this 20th day of January, 2020.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 104/2015 Page 51 of 51