Delhi District Court
Tushar Aggarwal vs Shri Rakesh on 11 December, 2023
CNR No. DLCT010062772023
IN THE COURT OF MS. ILLA RAWAT :
DISTRICT JUDGE COMMERCIAL COURT- 03:
(CENTRAL) : TIS HAZARI : DELHI.
CS (COMM) No. 771/2023
In the matter of :-
1. Shri Tushar Aggarwal
S/o Late Shri Manish Aggarwal
2. Smt. Shanta Aggarwal
W/o Shri Om Prakash Aggarwal
3. Smt. Poonam Aggarwal
W/o Late Shri Manish Aggarwal
4. Ms. Anishka Aggarwal
D/o Late Shri Manish Aggarwal
All residents of:-
163, Savita Vihar, Delhi-110092 ......Plaintiffs
Versus
Shri Rakesh
S/o Shri Ram Chander
Proprietor, Vidhya Bag House
163, Street No.6 Roshan Vihar,
Sadatpur, Karawal Nagar Road,
Delhi-110094
Mobile No.9990016977
Email: [email protected] ......Defendant
CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 1 / 25
Date of Institution : 08.05.2023
Date on which Judgment reserved : 11.12.2023
Date on which judgment pronounced : 11.12.2023
SUIT FOR RECOVERY
JUDGMENT
1. Vide this judgment I shall dispose of the suit for recovery of Rs.37,20,973/- alongwith pendente lite and future interest, filed by plaintiffs against the defendant.
2. Briefly stated facts of the case as averred in the plaint are that firm Brijbasi Traders, a proprietorship firm, having its office at 1834, Noor Ganj, Main Road, Delhi-110006, is engaged in business of sale and supply of laminated and coated fabric, ropes, niwar, tapes, canvas clothes & allied goods. The firm used to conduct business through its proprietor Shri Manish Aggarwal who unfortunately expired on 23.01.2022, leaving behind Smt. Shanta Aggawal (mother/plaintiff no.2), Smt. Poonam Aggarwal (wife/plaintiff no.3), Shri Tushar Aggarwal (son/plaintiff no.1) and Ms. Anishka Aggarwal (daughter/plaintiff no.4) as his legal heirs.
3. It is averred in the plaint that after the death of Shri Manish Aggarwal, the business activities of Brijbasi Traders were being supervised and controlled by plaintiff no.1 with the consent of all the other legal heirs of late Shri Manish Aggarwal. Later plaintiff no.1 also became the proprietor of Brijbasi Traders. The CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 2 / 25 plaintiffs no.2 to 4 executed a Special Power of Attorney in favour of plaintiff no.1 to represent them in Court and to prosecute the case on their behalf.
4. It is further averred in the plaint that defendant is the proprietor of Vidhya Bag House. The defendant contacted late Shri Manish Aggarwal and placed orders for sale and supply of laminated clothes and niwar, pursuant to which the plaintiff sold, supplied and delivered the laminated clothes and niwar to the defendant on the agreed terms and conditions. The defendant duly received and consumed the goods supplied by Sh. Manish Aggarwal, without any demur and complaint.
5. As per the open and running account maintained by Sh.Manish Aggarwal, a sum of Rs.29,03,282/- remained due and outstanding towards the principal amount, from the defendant, as on 25.10.2021, which he deliberately and willingly failed to pay on one pretext or the other.
6. It is further averred that since the defendant did not want to fulfil his business and legal obligations, he issued a cheque bearing No.000281 dated 24.05.2022 for a sum of Rs.29,00,000/- towards discharge of his liability, however, the said cheque was returned back dishonoured upon presentation. The plaintiffs got a legal notice dated 22.06.2022 issued upon defendant claiming the cheque amount. The defendant failed to pay the cheque amount despite service of the notice thereby constraining the plaintiffs to file a complaint U/s 138 of Negotiable Instrument Act (hereinafter referred to as N.I. Act).
CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 3 / 25 The said complaint is stated to be pending disposal before concerned Ld. MM, Delhi.
7. It is then averred in the plaint that plaintiffs made several requests to defendant to pay the outstanding amount but defendant deliberately and willfully delayed payment of the same on one pretext or the other thereby constraining plaintiffs to serve another legal notice dated 08.07.2022 upon defendant. Since the defendant did not pay the outstanding amount, the plaintiffs instituted a pre-institution mediation proceedings U/s 12A of the Commercial Courts Act, 2015 before Mediation Center at Tis Hazari. The said proceedings resulted in issuance of a Non-starter Certificate dated 03.02.2023. Thus aggrieved by the acts of defendant, plaintiffs have filed the present suit for recovery of Rs.37,20,973/- (Rs. 29,03,282/- towards the Principal amount and Rs.8,17,691/- towards interest @ 12% p.a. from 25.10.2021 to 28.02.2023) alongwith future interest @ 12% p.a. from the date of filing of suit till realization.
8. The defendant has contested the suit by filing a detailed written statement. By way of preliminary objection, it is contended that plaintiffs have filed frivolous and vexatious recovery suit only to harass the defendant and to grab money from him on basis of false and fabricated documents and bills. This is besides the false and fabricated case U/s 138 of N.I. Act filed by plaintiffs against the defendant. The locus standi of plaintiffs to file the suit has been challenged for want of transactions between the plaintiffs and the defendant. It is denied that cheque bearing no.000281 dated 24.05.2022 for CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 4 / 25 Rs.29,00,000/- was issued by defendant towards discharge of his liability. It is alleged that the cheque in question, which is the subject matter of the present suit, as well as cheques bearing no.000310 and 000311 dated 24.05.2022 and 25.05.2022 for Rs.16,00,000/- and Rs.19,00,000/- respectively, used to file cases by plaintiff no.3/Smt. Poonam Aggarwal against the defendant, were given by defendant to late Sh. Manish Aggarwal by way of security about three years ago and that after the death of Sh.Manish Aggarwal, plaintiffs have misused the said cheques. Since plaintiff no.1 has no personal knowledge of the transactions between late Sh.Manish Aggarwal and defendant and has even otherwise not been appointed as attorney by defendants no.3 and 4, it is stated that the present suit is not maintainable. The fact that purchase orders have not been filed with the plaint has been taken as ground for rejection of the plaint.
9. On merits, it is denied that present suit falls within the category of "Commercial Dispute" as defined in Section 2(C)
(i) of the Commercial Courts Act as plaintiffs have failed to file any purchase orders in respect of invoices/bills which are subject matter of the present suit, filed by the plaintiffs. It is admitted that defendant is proprietor of Vidya Bag House and is responsible for conducting day to day business of the said firm. It is also admitted that defendant had business relations with late Sh.Manish Aggarwal. It is, however, denied that defendant is liable to pay a single penny to plaintiffs let alone a sum of Rs.29,03,282/- as defendant has already discharged all his liability towards Sh. Manish Aggarwal. It is reiterated that CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 5 / 25 cheque no.000281 dated 24.05.2022 for Rs.29,00,000/- as well as cheque bearing no.000310 dated 24.05.2022 for Rs.16,00,000/- and cheque bearing no.000311 dated 25.05.2022 for Rs.19,00,000/- were given by defendant to late Sh.Manish Aggarwal as security about three years ago. Rest of the averments made in the plaint have also been controverted on merits and it is prayed that the suit filed by plaintiff be dismissed.
10. Plaintiff has filed replication reiterating averments made in the plaint and denying contra averments made in the written statement. It is denied that suit is based on false and fabricated documents/bills. It is denied that defendant had issued cheque no.000281 dated 24.05.2022 for Rs.29,00,000/- as well as cheque bearing no.000310 dated 24.05.2022 for Rs.16,00,000/- and cheque bearing no.000311 dated 25.05.2022 for Rs.19,00,000/- by way of security to Sh. Manish Aggarwal or that the plaintiffs have misused the said cheques after death of Sh.Manish Aggarwal. It is also reiterated that plaintiff no.1 has taken over as proprietor of Brijbasi Traders upon death of Sh.Manish Aggarwal as also pursuant to consent of his other legal heirs. It is again prayed that suit of plaintiffs be decreed in their favour.
11. From the pleadings of parties, following issues were framed on 27.09.2023 :-
1) Whether the plaintiffs are entitled for decree of recovery of Rs.37,20,973/- against the defendant, as prayed for?(OPP)
2) Whether plaintiff is entitled for interest. If yes, at CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 6 / 25 what rate and for which period? (OPP)
3) Relief.
12. Thereafter matter was fixed for evidence of plaintiff.
13. The plaintiffs examined four witnesses namely Sh. Tushar Aggarwal as PW1, Sh. Pramod as PW2, Sh. Phool Kumar Gahlawat as PW3 and Sh. Vikrant Gupta as PW4 to prove their case.
14. PW1, Sh. Tushar Aggarwal, is one of the plaintiffs in the case. He filed his affidavit and tendered the same in evidence as Ex.PW-1/A. He has reiterated the facts averred in the plaint in his affidavit Ex.PW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit No.
1. Copy of Special Power of Attorney Ex.PW-1/1
2. Copy of GST certificate in respect of registration of Ex.PW-1/2 the plaintiff with Department of Trade and Taxes
3. The office copies of the invoices dated 20.03.2019, Ex.PW1/3 to 22.03.2019, 23.03.2019, 25.03.2019, 30.03.2019, Ex.PW1/92A 02.04.2019, 10.04.2019, 15.04.2019, 17.04.2019, respectively 05.10.2019, 09.10.2019, 10.10.2019, 12.10.2019, 26.10.2019, 02.11.2019, 09.11.2019, 11.11.2019, 16.11.2019, 23.11.2019, 26.11.2019, 02.12.2019, 10.12.2019, 18.12.2019, 19.12.2019, 12.12.2019, 24.12.2019, 28.12.2019, 30.12.2019, 31.12.2019, 01.01.2020, 04.01.2020, 08.01.2020, 09.01.2020, 13.01.2020, 15.01.2020, 20.01.2020, 23.01.2020, 28.01.2020, 01.02.2020, 03.02.2020, 04.02.2020, 06.02.2020, 07.02.2020, 12.02.2020, 07.03.2020, 11.03.2020, 17.03.2020, 14.05.2020, 23.05.2020, 04.06.2020, 11.06.2020, 13.06.2020, 16.06.2020, 19.06.2020, 27.07.2020, 29.07.2020, 01.08.2020, 29.08.2020, 14.09.2020, 17.09.2020, 18.09.2020, 21.09.2020, 09.10.2020, 14.10.2020, 19.10.2020, 22.10.2020, 24.10.2020, 02.11.2020, 09.11.2020, 18.11.2020, 2.12.2020, 05.12.2020, 07.12.2020, CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 7 / 25 15.12.2020, 19.12.2020, 24.12.2020, 05.01.2021, 07.01.2021, 05.02.2021, 25.09.2021, 04.10.2021, 20.10.2021, 25.10.2021
4. The E-way bills of the aforesaid invoices Ex.PW1/93 to Ex.PW1/148
5. Statement of account Ex.PW1/149
6. Cheque bearing No. 000281 dated 24th May, 2022 Ex.PW1/150 for Rs.29,00,000.00
7. Legal notice dated 22.06.2022 Ex.PW1/151
8. The copy of the complaint U/s 138 of N.I. Act Ex.PW1/152
9. Office copy of legal notice of demand issued to the Ex.PW1/153 defendant dated 08.07.2022 and its postal receipt & Ex.PW1/154 respectively
10. Certificate U/s 65-B of Indian Evidence Act with Ex.PW1/155 regard to invoices, statement of account, e-way bills and GST certificate
11. Non-starter certificate Ex.PW1/156
15. During his cross-examination, the PW-1 deposed that he became proprietor of M/s Brijbasi Traders in February/March 2022, after death of his father. He termed it correct that only plaintiff no.2/ Smt. Shanta Aggarwal had issued SPA in his favour while plaintiffs no.3 and 4 had not done so. He further termed it correct that he never had direct dealing with defendant till such time that his father was alive. All the payments received from defendant had been duly credited in statement of account Ex.PW1/149.
16. During his further cross-examination, PW1 denied that the cheque Ex.PW1/150 was given by defendant to his late father. He clarified that defendant had given said cheque to him 3-4 months after death of his father. The defendant had also given him another cheque but the same was in respect of business transactions with his mother - Smt. Poonam Aggarwal (mother of CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 8 / 25 PW1). The PW1 was unable to recall the date of issuance of cheque issued by defendant to his mother. He denied that cheque Ex.PW1/150 was given by defendant to his father by way of security at the time defendant had business transactions with his father. He denied that defendant was not liable to pay any amount towards business transactions he had with his father (father of PW1) or that he (PW1) misused the cheque given by defendant towards security.
17. The PW-2, Sh.Pramod, is a witness from Trade & Tax Department. He produced the record pertaining to GSTR-2A filed by the defendant Rakesh, Proprietor of Vidya Bag House, for the period from March 2019 to October 2021 in respect of GST No.07AJZPR8632H1ZC and proved that same as Ex.PW2/1 (Colly) and the Certificate U/s 65B of Evidence Act as Ex.PW2/2.
18. During his cross-examination by counsel for defendant, PW2 deposed that he had downloaded the documents produced by him from the Government GST website and that he had not brought any document other than Ex.PW2/1 and Ex.PW2/2.
19. The PW3, Sh.Phool Kumar Gahlawat, is the official from Court where case U/s 138 N.I. Act filed by plaintiffs against the defendant is pending. He produced record of complaint case no.7043/22 titled as "Tushar Aggarwal Vs. Rakesh" and verified genuineness of photocopies of the cheque, legal notice and complaint U/s 138/139/142 of N.I. Act filed by Sh. Tushar Aggarwal against Sh. Rakesh, already exhibited as Ex.PW1/150 CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 9 / 25 to Ex.PW1/152 respectively, by comparing the same with the original record produced by him.
20. During his cross-examination, PW3 deposed that he did not have any personal knowledge of the complaint case, record of which, was produced by him.
21. The PW4, Sh. Vikrant Gupta, is the maternal uncle of PW1 Sh. Tushar Aggarwal. He tendered his affidavit Ex.PW4/A in evidence wherein he relied upon documents i.e. print out of Whatsapp chat received on his mobile phone bearing no.9899933500 from the mobile phone of defendant bearing no.9990016977. The screen shot of whatsapp messages was proved as Ex.PW4/1 and the PDF file attached with it was proved as Ex.PW4/2.
22. During his cross-examination, PW4 deposed that he had started assisting plaintiff no.1 in business only after death of Sh.Manish Aggarwal, his jija/father of plaintiff no.1. He had no personal knowledge of the transactions between Late Sh. Manish Aggarwal and the defendant. He admitted that he had filed documents Ex.PW4/1 and Ex.PW4/2 to strengthen the case of the plaintiffs. He denied that documents Ex.PW4/1 and Ex.PW4/2 were forged and fabricated by him in collusion with plaintiffs.
23. In order to prove his case, the defendant has examined himself as DW-1. He has filed his affidavit and tendered the same in evidence as Ex.DW-1/A. CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 10 / 25
24. During his cross-examination by counsel for plaintiff, the DW-1 deposed that he was in business of manufacturing bags for which he took material from different companies including Nowtac company. He used to give purchase orders to the companies from which he purchased raw material. While purchasing material from Sh. Manish Aggarwal also, he had given purchase orders but had not filed copies of said purchase orders on record. He admitted that he was supplied goods as per purchase orders placed by him upon Sh.Manish Aggarwal and that he was given invoice by Sh. Manish Aggarwal in respect of goods purchased by him (DW1) from him (Sh.Manish Aggarwal). E-way bills were also received with invoices. He had not filed any E-way bill in respect of goods supplied to him by Sh. Manish Aggarwal.
25. During his further cross-examination, DW1 deposed that he used to file GST returns through his C.A. and did not file the same personally. He had claimed input credit in respect of goods supplied to him by various persons including Sh. Manish Aggarwal. His C.A. filed GST returns on basis of inputs given by him. He maintained ledger account in respect of goods received from various sellers. He had not filed ledger account statement in respect of goods received from Sh. Manish Aggarwal. He used to make payment to Sh. Manish Aggarwal partly in cash and partly through bank transfer which was also the mode of payment in respect of goods purchased from other sellers. There was no formal credit receipt in respect of cash payments made by him. He volunteered to state that it was in form of some paper slips/परर. He never asked for credit note CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 11 / 25 from Sh. Manish Aggarwal in respect of cash payments made by him.
26. During his further cross-examination, DW1 deposed that the mobile no.9990016977 belonged to him. He admitted having sent a message, Ex.PW4/1, and statement of account, Ex.PW4/2, to Mr. Vikrant Gupta from his said mobile number on 07.03.2022.
27. Improving upon his previous statement, the witness at this stage claimed that he was not clear as to what attachment was sent by him with message, Ex.PW4/1. The DW1 was then asked to check from his mobile phone, however, he stated that he had changed his mobile phone and was unable to locate the message. To facilitate the witness in refreshing the memory, Sh.Vikrant Gupta, to whom message had been sent by the witness, was asked to show the witness the said whatsapp message alongwith PDF attachment from his mobile phone bearing no.9899933500. After refreshing his memory, the witness/DW1 acknowledged that whatsapp message, Ex.PW4/1 as well as attachment, Ex.PW4/2 had been sent by him.
28. During his further cross-examination, DW1 termed it correct that as per statement, Ex.PW4/2, all the payments except payment dated 29.04.2020 were made through bank transactions. He further deposed that he did not obtain any credit note or receipt in respect of payment of Rs.16 lakhs made on 29.04.2020 from Sh. Manish Aggarwal and that if the outstanding amount of Rs.13,51,858/-, as reflected from CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 12 / 25 Ex.PW4/2, and cash payment of Rs.16 lakhs, made on 29.04.2020, were added then the suit amount claimed by plaintiffs from him (DW1) i.e. Rs.29,03,282/- was nearly arrived at. He denied that he had never paid Rs.16 lakhs in cash to late Sh. Manish Aggarwal. He was aware that as per Income Tax Act, no cash transaction for more than Rs.2 lakhs can be done.
29. In response to specific question that when Sh.Vikrant Gupta, maternal uncle of plaintiff Tushar Aggarwal, son of Late Sh. Manish Aggarwal, put him (DW1) message Ex.PW4/1 and statement of account Ex.PW4/2, he (DW1) issued cheque Ex.PW1/150 in the name of Brijwasi Traders, the DW1 deposed that he had issued cheque Ex.PW1/150 to Sh.Manish Aggarwal in the year 2019 towards security when he commenced business with him. He denied that he had not issued cheque Ex.PW1/150 to Sh. Manish Aggarwal towards security.
30. When asked to tell the date and amount when he made full and final payment of the due amount to Late Sh.Manish Aggarwal, the DW1 deposed that he had made payment of Rs.16-17 lakhs to Late Sh. Manish Aggarwal during Covid-19 pandemic and had also made further payment later on. He was unable to recall the exact date, month and year of said payments.
31. The DW1 admitted that he had not filed any document on record from which it could be ascertained that he had made payment of Rs.16-17 lakhs to late Sh. Manish CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 13 / 25 Aggarwal during Covid-19 pandemic and had given further payment later on.
32. During his further cross-examination, the DW1 was asked to tell the date when he cleared the account of M/s Brijbasi Traders. Though he stated that he had made the payment in the year 2021 he was unable to recall the exact date and month of the payment. He denied that he was unable to recall the date and month of payment as he had never cleared the outstanding amount payable by him to M/s Brijbasi Traders.
33. The DW1 admitted having filed a balance sheet alongwith an application U/o XI Rule 1(10) CPC which was dismissed by the Court. When put the balance sheet, Ex.DW1/P1, he admitted that the same reflected an amount of Rs.12,34,236/- outstanding against M/s Brijbasi Traders as on 31.03.2022. He denied that since he had failed to clear amount outstanding towards M/s Brijbasi Traders, a sum of Rs.12,34,236/- was shown outstanding in Ex.DW1/P1. He admitted that he had not filed ledger account statement in support of balance sheet Ex.DW1/P1. He further admitted that amount of Rs.16 lakhs, which he claimed was paid in cash on 29.04.2020, was also not reflected from Ex.DW1/P1. He denied that he was liable to pay a sum of Rs.29,03,282/- to M/s Brijbasi Traders or that he had not cleared the same despite repeated requests and demand. He further denied that he had wrongly taken a defence of having paid Rs.16 lakhs cash and remaining amount subsequently to avoid payment of the dues to M/s Brijbasi Traders. The DW1 was unable to point out as to CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 14 / 25 which of the said invoices Ex.PW1/3 to Ex.PW1/92A stood paid by him.
34. No other witness was examined on behalf of defendant.
35. Arguments were addressed by Sh. Bhaskar Tiwari and Sh.Ramakant Shukla, counsels for the plaintiffs and Sh. Manoj Kumar Singh, counsel for defendant. During the course of arguments, counsels for plaintiffs and defendant reiterated respective averments made in the plaint and written statement and also referred to documents filed on behalf of respective parties as well as evidence adduced on record by them.
36. Counsel for plaintiffs has contended that plaintiff no.2 has issued SPA in favour of plaintiff no.1 and that plaintiffs no.2 to 4 have also signed the plaint. Since plaintiffs no.3 and 4 have signed the plaint, they were not required to appear in person to depose as plaintiff no.1 has already deposed on their behalf as well as on behalf of plaintiff no.2 who has executed SPA in favour of plaintiff no.1.
It is further contended that invoices in respect of transactions with defendant have been placed on record by plaintiffs and proved as Ex.PW1/3 to Ex.PW1/92A. All the transactions with defendant are reflected in the GSTR-2A statement of defendant which was produced by PW2/Sh. Pramod. The defendant has availed of input credit in respect of goods supplied to him by Late Sh.Manish Aggarwal.
The PW4/Sh.Vikrant Gupta who is maternal uncle CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 15 / 25 of plaintiffs no.1 and 4 also produced whatsapp message, Ex.PW4/1, and PDF file i.e. the statement of account, Ex.PW4/2, received from defendant, which clearly bring out that as per the admitted statement of account, Ex.PW4/2, defendant was liable to pay a sum of Rs.12,34,236/- to firm Brijbasi Traders. Besides this, a sum of Rs.16 lakhs which defendant claims was paid by him in cash to Late Sh.Manish Aggarwal could not be proved to have been so paid by the defendant. When the amount due as per statement of account, Ex.PW4/2, and unexplained cash payment of Rs.16 lakhs are taken together then it is equivalent to Rs.29,03,282/-, the amount for which plaintiffs have filed the present suit.
There is no statement of account filed by defendant. His claim that he had made cash payment of Rs.16 lakhs during Covid period cannot be accepted in absence of any receipt or credit note. Even otherwise, the said statement is not reflected from his balance sheet, Ex.DW1/P1. The defendant being a businessman was well aware that he could not have made payment of more than Rs.2 lakhs, in cash, in a financial year.
The defendant also concealed the alleged purchase orders and it was so since he never issued any purchase orders and used to place orders telephonically. The defence put forth by defendant is moonshine and cannot be relied upon. It is accordingly prayed that suit of plaintiff be decreed.
37. Per contra, counsel for defendant has contended that plaintiff no.1 has falsely stated in plaint that plaintiffs no.2 to 4 have executed SPA in his favour and since plaintiffs no.3 and 4 have themselves not appear to depose in the case, the suit of CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 16 / 25 plaintiff is liable to be dismissed. He has relied upon judgment in case of 'Vidhyadhar vs. Manikrao and Anr.' https://indiankanoon.org/doc/1332419 (AIR 1999 SC 1441). He has further contended that plaintiff no.1 is not aware of transactions between Sh. Manish Aggarwal and the defendant. No purchase orders have been placed on record by the plaintiffs. There is no receiving of goods on the invoices filed by the plaintiffs and thus the transactions/supply of goods to defendant do not stand proved. It is admitted that defendant had issued cheque, Ex.PW1/150, however, the said cheque was given to Sh.Manish Aggarwal as security when defendant commenced business transactions with him. Defendant has already made payment of entire due amount to Sh. Manish Aggarwal during his life time and that nothing is due and payable by defendant to firm M/s Brijbasi Traders. It is accordingly prayed that suit filed by plaintiffs be dismissed.
38. I have heard the learned Counsels for the parties and have also perused the record carefully and my findings on aforesaid issues are as under:-
ISSUE NO.1:-
Whether the plaintiffs are entitled for decree of recovery of Rs.37,20,973/- against the defendant, as prayed for?(OPP)
39. Onus of proving this issue was on plaintiffs. The plaintiffs are aggrieved by the fact that defendant has failed to pay a sum of Rs.29,03,282/- which was due and payable by him to firm M/s Brijbasi Traders which was earlier being run by CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 17 / 25 Sh.Manish Aggarwal who unfortunately expired leaving behind plaintiffs as their legal heirs. The defendant issued a cheque, Ex.PW1/150, towards discharge of his liability but the said cheque was returned back dishonoured forcing plaintiffs to file a complaint case U/s 138 of N.I. Act which is pending before the concerned Court. The defendant failed to pay the outstanding amount despite service of legal notices dated 22.06.2022 and 08.07.2022 and further did not participate in pre-institution mediation proceedings and hence decree in sum of Rs.29,03,282/- alongwith interest of Rs.8,17,691/- from 25.10.2021 to 28.02.2023 @ 12% per annum is prayed for.
40. The defendant, on the other hand, has challenged the claim of the plaintiffs on the ground that :-
(i) That there is no privity of contract between the plaintiffs and defendant since all the transactions between defendant and M/s Brijbasi Traders had taken place through Late Sh.Manish Aggarwal. The plaintiffs neither have knowledge nor have capacity to recover any amount from plaintiffs.
(ii) That the invoices relied upon by plaintiffs are forged and fabricated.
(iii) The cheque bearing no.000281 dated 24.05.2022 for Rs.29,00,000/- as well as cheque bearing no.000310 dated 24.05.2022 for Rs.16,00,000/- and cheque bearing no.000311 dated 25.05.2022 for Rs.19,00,000/- were given by defendant to late Sh.Manish Aggarwal as security about three years ago and not towards discharge of alleged liability by the defendant.
CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 18 / 25
(iv) Plaintiffs have failed to file purchase orders through which defendant used to place order for purchase of goods.
(v) The defendant has already discharged entire liability towards M/s Brijbasi Traders during the lifetime of Late Sh.Manish Aggarwal and is not liable to pay any amount to the plaintiffs.
Besides this, it is also claimed that plaintiff no.1 is not entitled to file the present suit on behalf of plaintiffs no.3 and 4 for they have not executed any SPA in his favour.
41. A bare perusal of the averments made by defendant in the written statement clearly bring out that he has taken contradictory defence. On the one hand, he claims that he used to place purchase orders for supply of goods and that he was never supplied goods vide invoices Ex.PW1/3 to Ex.PW1/92A and on the other, he claims to have made payment of entire due amount to Late Sh.Manish Aggarwal. The plea of defendant that he was not supplied goods and that plaintiffs have failed to prove the fact that goods were supplied to him for want of placing on record purchase orders and failure to produce invoices with receipt of goods by defendant and/ or his employee is not sustainable in view of admissions made by him during his cross- examination which has been reproduced at length in foregoing paragraphs. The defendant has not only admitted that he was supplied goods as per purchase orders placed upon him by Sh.Manish Aggarwal but has also admitted that he was given invoices by Sh.Manish Aggarwal in respect of goods purchased CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 19 / 25 by him and had also received e-way bills. He also claimed input credit in respect of goods supplied to him by various persons including Sh. Manish Aggarwal. The DW1 admitted that he used to file GST returns, through his C.A., to claim input credits and that his C.A. used to prepare the said return on basis of inputs given to him by defendant/DW1. It is noteworthy that GSTR-2A statement, Ex.PW2/A, produced by PW2/Sh. Pramod, a witness from Trade and Tax Department, clearly reflects all the transactions between firm M/s Brijbasi Traders and the defendant. The genuineness of Ex.PW2/A has not been disputed by defendant in any manner.
42. It is also brought out from cross-examination of DW1 that he got prepared balance sheet of his firm. When the balance sheet, Ex.DW1/P1, filed by defendant alongwith his application U/o XI Rule 1(10) CPC which was dismissed, was put to the defendant during his cross-examination, he admitted that the same reflected an amount of Rs.12,34, 236/- outstanding against M/s Brijbasi Traders as on 31.03.2022. The said balance sheet, Ex.DW1/P1, also did not find mention of amount of Rs.16 lakhs and other unspecified cash amount, which he claims to have paid in cash to Sh.Manish Aggarwal, on 29.04.2020 and subsequently. It is noteworthy that Sh.Manish Aggarwal had expired on 23.01.2022 while balance sheet, Ex.DW1/P1, is upto 31.03.2022, a couple of months after Sh.Manish Aggarwal had passed away. If defendant's version that he had paid the entire due amount to Sh.Manish Aggarwal during his lifetime is correct and he is also to be believed that he had paid a sum of Rs.16 lakhs in cash to Sh.Manish Aggarwal on 29.04.2020, then there is CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 20 / 25 no explanation why balance sheet, Ex.DW1/P1, reflects outstanding amount of Rs.12,34,236/- against M/s Brijbasi Traders as on 31.03.2022 and the said balance sheet is also devoid of entry with respect of alleged cash payment to Sh.Manish Aggarwal on 29.04.2020.
43. The defendant has not produced a single purchase order though he claims that he was dealing with M/s Brijbasi Traders as well as other suppliers from whom he purchased goods in this manner. The PW1 was not confronted with any purchase order to prove that defendant conducted business with his suppliers by placing written purchase orders. He could also not prove that there was an existing practice in his line of trade to issue cheque(s) towards security amount, as claimed by him, and if such cheques were issued then how and in what manner the quantum of consideration that was mentioned thereupon was arrived at. In fact, defendant has not named any other purchaser to whom he had issued cheque by way of security for supply of goods.
44. Moreover, the defendant could not explain his whatsapp messages, Ex.PW4/1, and accounts statement, Ex.PW4/2, attached in PDF form with Ex.PW4/1, to PW4/Sh.Vikrant Gupta, maternal uncle of plaintiff no.1/Tushar Aggarwal. The cheque, Ex.PW1/150, is dated 24.05.2022, which is subsequent to the date of 07.03.2022 which is the date reflected from whatsapp message Ex.PW4/1. The only conclusion which can be drawn in these circumstances is that defendant had issued cheque Ex.PW1/150 towards discharge of CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 21 / 25 his liability towards M/s Brijbasi Traders and his defence that the said cheque had been issued by way of security does not inspire any confidence.
45. Further, the defendant could also not explain why he had made a single cash payment of Rs.16 lakhs to Sh.Manish Aggarwal on 29.04.2020 despite the fact that no business activities were taking place at that time due to onset of Covid-19 pandemic and even otherwise as per Government directives, defendant could not have made cash payment of more than Rs.2 lakhs in a particular financial year. Moreover, except for this cash transaction of Rs.16 lakhs dated 29.04.2020, all the other payments made by defendant to M/s Brijbasi Traders are online payments/bank transfers. Thus the burden of proving the fact that defendant had made cash payment of Rs.16 lakhs on 29.04.2020 to Sh.Manish Aggarwal was on defendant himself but the defendant has failed to do so. He has neither filed his own statement of account nor placed any other document on record from which it can be ascertained that defendant used to make cash payment also to his suppliers for goods supplied to him. Even otherwise, as already observed in foregoing paragraphs, the defendant's balance sheet, Ex.DW1/P1, contradicts his plea of cash payment as well as his having paid the entire due amount to firm M/s Brijbasi Traders.
46. Lastly coming to the issue that suit of plaintiffs is bad for want of transaction(s) between the plaintiffs and the defendant, this plea of defendant is also without any basis. The plaintiffs are admittedly the legal heirs of Late Sh.Manish CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 22 / 25 Aggarwal and having inherited his estate are liable for all the liabilities against M/s Brijbasi Traders. Similarly, they are also entitled to recover whatever amount is due to be paid to firm M/s Brijbasi Traders by any third party. The plaintiff no.1/Tushar Aggarwal, plaintiff no.2/Smt. Shanta Aggarwal, plaintiff no.3/Poonam Aggarwal and plaintiff no.4/Anishka Aggarwal are all on the same footing being the legal heirs of Late Sh.Manish Aggarwal. Additionally, Smt. Shanta Aggarwal, plaintiff no.2 has also issued SPA, Ex.PW1/1, in favour of plaintiff no.1/Tushar Aggarwal. All the plaintiffs have signed the plaint. This being so, any of the plaintiffs could have stepped into the witness box to depose on behalf of the remaining legal heirs of Late Sh.Manish Aggarwal and it was not necessary for each and every legal heir of Sh.Manish Aggarwal i.e. plaintiffs no.1 to 4 to have individually stepped into witness box to depose specially when the business of proprietorship firm M/s Brijbasi Traders has been taken over by plaintiff no.1/Sh.Tushar Aggarwal with the consent of plaintiffs no.2 to 4, a fact which has not been disputed by defendant. Thus the plea taken by defendant that the suit filed by plaintiffs is bad for want of transaction(s) between plaintiffs and the defendant and that the suit is liable to fail for proper authorization of plaintiff no.1 by plaintiffs no.3 and 4 and/or need for all the plaintiffs to appear before the Court to depose cannot be sustained and are hence rejected.
47. The judgment in case of Vidhyadhar (supra) relied upon by counsel for defendant is not applicable in the facts and circumstances of present case where plaintiff no.1/Sh.Tushar Aggarwal has not only stepped into the witness box on his behalf CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 23 / 25 but also on behalf of other plaintiffs and has deposed regarding the case of the plaintiffs and has also withstood the test of cross- examination.
48. The nutshell of foregoing discussion is that plaintiffs are entitled to decree for recovery of Rs.29,03,282/- as prayed for by them. This issue is decided in favour of the plaintiffs and against the defendant.
ISSUE NO.2:-
Whether plaintiff is entitled for interest. If yes, at what rate and for which period? (OPP)
49. The onus of proving this issue was on plaintiffs. As per invoices Ex.PW1/3 to Ex.PW1/92A, the defendant was liable to pay interest 24% per annum on payments made after 30 days. The plaintiffs have claimed interest @ 12% per annum only and hence besides the principal amount of Rs.29,03,282/- seek an amount of Rs.8,17,691/- as interest on the principal amount calculated @12% per annum for the period from 25.10.2021 to 28.02.2023 alongwith pendente lite and future interest @12% per annum till realization of the decreetal amount. The claimed interest of 12% per annum appears to be nominal. After considering the totality of facts and circumstances of the case, I am inclined to grant simple interest @12% per annum on principal amount of Rs.29,03,282/- from 25.10.2021 till realization of the decreetal amount. This issue is decided accordingly.
CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 24 / 25 R E L I E F:-
50. In view of foregoing observations, I hereby pass a money decree in the sum of Rs.29,03,282/- (Rupees Twenty Nine Lakhs Three Thousand Two Hundred Eighty Two only) in favour of the plaintiffs and against the defendant with simple interest @ 12% per annum on the principal amount w.e.f. 25.10.2021 till realization of the decreetal amount.
The defendant will further pay the full costs of the suit and additionally Rs.1,000/- spent by the plaintiff in DLSA for invoking pre-institution mediation proceedings.
Decree sheet be prepared accordingly.
File be consigned to record room after due Digitally signed compliance.
ILLA by ILLA RAWAT Date:
Announced in the open Court RAWAT 2023.12.11 th 16:42:06 +0530 on 11 Day of December, 2023.
(ILLA RAWAT) District Judge Commercial Court-03 Central District, THC, Delhi.
CS (COMM) No. 771/2023 Tushar Aggarwal & Ors Vs. Rakesh Pg. 25 / 25