Delhi District Court
Petropol India Limited vs Tdi Infracorp India Ltd on 21 September, 2024
-1-
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02, NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CNR NO.: DLND01-007779-2022
CS (Comm.)/781/2022
IN THE MATTER OF:-
Petropol India Limited
Through Its Authorized Representative
Having its Registered Office at :
KD-307, Pitampura
New Delhi-110088
e-mail id : [email protected]
... PLAINTIFF
VERSUS
TDI INFRACORP INDIA LTD.
Through its Directors
Having its Regd. Office at :
Upper Ground Floor, Vandana Building 11
Tolstoy Marg, Connaught Place
New Delhi-110 001
e-mail id : [email protected]
... DEFENDANT
Date of Institution : 13-09-2022
Date of reserving Judgment : 28-08-2024
Date of pronouncement of Judgment : 21-09-2024
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs.65,92,026/- (Rupees Sixty Five Lacs Ninety Two Thousand & Twenty Six Only) along with, interest, pendent lite and future interest @ 24% per annum from the CS (COMM.)/781/2022 Page 1 of 39 -2- date of the filing of the suit till realization of the amount against the above named defendant.
FACTS OF THE CASE:
2. Succinctly stated, the plaintiff, which is a company duly incorporated under the Companies Act, 1956, is engaged in the business of manufacturing and supplying of TMT Bars [hereinafter referred to as 'said goods' in short ] and sells the same on orders as and when placed by the parties concerned. It is stated that the defendant, through its Authorized Representative/Directors, approached the plaintiff and requested to supply the said goods on credit period of 30 days and promised to make the payments on or before expiry of the said agreed credit period, failing which, interest @ 24% p.a. shall be levied, in terms of the invoice(s) on the value thereof with effect from the date of expiry of the period of credit. Accordingly, the plaintiff was supplying the said material to the defendant to its entire satisfaction and was raising invoices from time to time against the said supplies and the defendant, as per the record maintained by the plaintiff, used to make on account part payments. It is claimed that the plaintiff was maintaining an open and running account with the defendant debiting therein respective invoices and crediting therein the on account payments, which were received by the plaintiff from the defendant from time to time.
CS (COMM.)/781/2022 Page 2 of 39 -3-3. It is also stated that as per the record of the plaintiff, the plaintiff delivered the said material to the defendant at their Faridabad Site, for which the plaintiff raised 11 (Eleven) invoices upon the defendant for a total amount of Rs.1,63,79,342/- and details thereof have been given in Para no.6 of the plaint. It is further stated that in addition to the above supplies, the plaintiff also delivered the said goods to the defendant at its another Site situated at Kundli, Sonipat, for which the plaintiff raised 4 (four) invoices upon the defendant against such supplies for a total amount of Rs.44,82,490/- and details thereof have been given in Para no.7 of the plaint. It is also stated that the defendant made the payment of Rs.44,82,490/- towards the said 4 invoices in respect of the supplies made by the plaintiff at their Kundli, Sonipat Site, as per the record of the plaintiff.
4. It is stated that the defendant used and utilized the said material supplied by the plaintiff at their Faridabad Site in their business. However, the defendant only made a part payment of Rs.1,20,59,351/- and miserably failed to pay the balance amount. The details of aforesaid payment of Rs.1,20,59,351/- towards the supplies made at the Faridabad Site are given in Para no. 8 of the plaint. It is alleged that as per the record, after adjusting the aforesaid part payment, Rs.45,23,594/- which includes Rs.2,30,420/- towards interest levied on delayed payment and other charges, was due and payable by the defendant to the CS (COMM.)/781/2022 Page 3 of 39 -4- plaintiff as on 13-12-2021 and details thereof have been given in Para no. 9 of the plaint. It is further stated that in order to discharge the said liability, the defendant had issued four cheques for Rs.45,00,000/- with assurance that same were good for payment, however, on being presented to its banker, the said cheques got dishonoured on 20-01- 2021 with the remarks 'Funds Insufficient' and therefore, the plaintiff got issued the demand notice dated 10-02-2021 through its counsel to the defendant. Instead of making payment, the defendant got issued false reply dated 22-02-2021 claiming therein that the defendant company had made the payment of Rs.44,82,548.41 paise through RTGS from its account, which plea as per the plaintiff is false, as the said payment was in respect of other supplies made by the plaintiff at another site of Kundli, Sonipat, as already stated above. Hence, the plaintiff preferred a complaint u/s 138 of the Negotiable Instrument Act against the defendant and others, which is pending adjudication.
5. It is claimed that as on 15-08-2022, the defendant is liable to pay the suit amount to the tune of Rs.65,92,026/- which includes Rs.20,37,441/- towards interest calculated @ 24% per annum w.e.f. 14.12.2020 till 15.08.2022 and other charges. Details thereof have been given in Para no.12 of the plaint. The plaintiff has also claimed pendente lite and future interest @ 24% from the date of filing of the present suit till realization of the amount. Hence, the present suit CS (COMM.)/781/2022 Page 4 of 39 -5- has been filed by the plaintiff against the defendant for recovery of the aforesaid amount with interest.
6. Summons of the suit were issued to the defendant in terms of relevant order. Defendant put its appearance through counsel and filed written statement contesting the suit.
7. The defendant, in its written statement, stated that it deals in development of real estate in the form of integrated township, comprising of residential and commercial plots of various dimensions, residential apartments, villas, multiplexes and malls etc. in various parts of North India. The defendant took various preliminary objections in its written statement, inter alia, that the plaintiff has not approached this Court with clean hands and the claim lacks bona fide intents and the plaintiff has suppressed material facts and is as such guilty of suppressio veri and suggestio falsi while stating that the plaintiff has not disclosed true and correct facts regarding the present suit. In this regard, it is stated that the defendant has properly verified the 11 invoices for its Faridabad Site by marking their stamps on them or on their respective challan receipts. However, as regards 4 Invoices purportedly raised by the plaintiff against goods supplied to the defendant at its Kundli, Sonipat Site,it is stated by defendant that the said 4 Invoices in its name had been raised by the plaintiff on its own. It is stated that the said 4 Invoices were not verified invoices, as there were no stamp marks on them or on their respective Transport Challan Receipts, as the CS (COMM.)/781/2022 Page 5 of 39 -6- defendant used to do in its usual manner. As regards 4 cheques,it is stated by the defendant that they were issued for security purpose by the defendant to the plaintiff. Further, it is stated that the defendant had already made the payment of Rs.44,82,490/- with respect to above said 4 cheques, through RTGS from its account lying with UCO Bank, Parliament Street, New Delhi, which was duly received by the plaintiff on 02-02-2021. It is stated that since the 4 Invoices for Kundli, Sonipat Site, which have been raised on its own by the plaintiff for a sum of Rs.44,82,490/-, were not verified by the defendant, hence, same is not payable by the defendant to the plaintiff. Therefore, it is stated that the plaintiff's demand of principal balance amount of Rs.43,19,991/- and interest or other charges thereon is totally false, baseless and concocted.
8. Further, it is stated that the plaintiff has concealed the fact that a sum of Rs.3,95,864.00 has also been credited in the Bank Account of the plaintiff on 20-01-2021 through Cheque No.001189 drawn on Kotak Mahindra Bank, Kasturba Gandhi Marg, New Delhi-110001 as the plaintiff has not shown the said transaction in its Ledger attached with the suit.
9. It is stated that the plaintiff is not considering the RTGS made by the defendant to the plaintiff's account for Rs.44,82,490/- made on 02-02-2021 for the invoices it is claiming in the present suit for Faridabad Site of the CS (COMM.)/781/2022 Page 6 of 39 -7- defendant, and now, the plaintiff is deliberately mixing the two transactions for its unlawful gain. It is also stated that by way of present suit, the plaintiff had made malafide attempt to shirk its liability to pay back the overpaid amount of Rs.5,58,363/- received by the plaintiff from the defendant.
10. Similarly, in 'Parawise Reply', the defendant denied and controverted the averments made in the plaint and prayed for dismissal of the suit with exemplary cost.
11. The plaintiff filed replication to the written statement, thereby denying the contents thereof and reiterating the facts and averments made in the plaint. It denied that 4 Invoices are not verified invoices as no stamp has been marked by the defendant on those 4 invoices or on their respective Transport Challan Receipts. It is stated that there are acknowledgment and receipts of goods under the said invoices as the officials of the defendant duly put the 'stamp' of the defendant and his 'signatures' on all the GR Numbers already placed on record and thus, it is claimed that the defendant has taken a sham and bogus stand. As regards cheque for Rs.3,95,864/- it is stated that said cheque was issued towards the liability of Kundli, Sonipat Site and since the present suit is for recovery of due amount towards the Faridabad Site and the same is accounted for the delayed payment interest and the same was duly reflected in the books of account maintained by the plaintiff during the course of their business.
CS (COMM.)/781/2022 Page 7 of 39 -8-ISSUES:
12. From pleadings of the parties, the following issues were framed, vide order dated 20-09-2023, passed by Ld. Predecessor of this Court:-
i. Whether the plaintiff is entitled to decree of Rs.65,92,026/- along with interest, as prayed for? OPP.
ii. Whether 04 Invoices (for Kundli, Sonipat Site), which have been raised on its own by the plaintiff for a sum of Rs.44,82,490/- were not verified by the defendent, hence not payable ? OPD.
iii. Whether the plaintiff has concealed the fact that a sum of Rs.3,95,864/- has also been credited in the Bank Account of the plaintiff on 20-01-2021 through Cheque No. 001189 drawn on Kotak Mahindra Bank, Kasturba Gandhi Marg, New Delhi-110001 ? OPD iv. Relief.
13. In support of its case, the plaintiff has examined three witnesses namely Sh. Sanjay Gupta, its General Manager as PW-1, Sh. Lalit Prakash, Chief Manager, UCO Bank as PW-2 and Sh. Sanjeev Kumar, Superintendent, CGST Division as PW-3
14. PW1 led his examination-in-chief by way of affidavit CS (COMM.)/781/2022 Page 8 of 39 -9- (Ex.PW1/A) and deposed in terms of the averments made in the plaint. He has relied upon the following documents:-
Sr. Details of documents Exhibit
No.
1. Board Resolution dated Ex. PW1/1 (Colly)
05.08.2022 along with (Objected to being
Minutes Book. Minutes of Book is
fabricated neither
having signature at all
space nor stamp and
not having page
number as per
provision).
2. Invoices issued by plaintiff Ex. PW1/2 to Ex.
to defendant on different PW1/23
dates along with relevant (Objected to the mode Goods Receipts/Lorry of proof) Receipts qua the supplies made to the Faridabad site of the defendant.
3. Invoices issued by plaintiff Ex. PW1/24 to Ex.
to defendant on different PW1/37
dates alongwith relevant (Ex. PW1/24, Ex.
Goods Receipts/Lorry PW1/26, Ex. PW1/28,
Receipts qua the supplies Ex. PW1/30, Ex.
made to the Kundli, Sonipat PW1/32, Ex. PW1/34
site of the defendant. and Ex. PW1/36 were
CS (COMM.)/781/2022 Page 9 of 39
-10-
Sr. Details of documents Exhibit
No.
objected to the mode
of proof and not
verified)
(Ex. PW1/25, Ex.
PW1/27, Ex. PW1/29,
Ex. PW1/31, Ex.
PW1/33, Ex. PW1/35
and Ex. PW1/37 were
objected to being
forged and fabricated
as copy placed on
record after filing of
replication not with the
suit).
4. Interest Calculation sheet. Ex. PW1/38 (Objected
to being interest
arbitrarily imposed)
5. Certified copy of cheque Ex. PW1/39 (Objected no. 002439 dated to being security 23.11.2020. cheque and having no legal discharge liability)
6. Certified copy of cheque Ex. PW1/40 (Objected no. 002441 dated to being security 03.12.2020 cheque and having no CS (COMM.)/781/2022 Page 10 of 39 -11- Sr. Details of documents Exhibit No. legal discharge liability)
7. Certified copy of cheque Ex. PW1/41 (Objected no. 002442 dated to being security 08.12.2020 cheque and having no legal discharge liability)
8. Certified copy of cheque Ex. PW1/42 (Objected no. 002444 dated to being security 13.12.2020 cheque and having no legal discharge liability)
9. Demand Notice dated Ex. PW1/43 (Objected 10.02.2021. to on mode of proof)
10. Replies of defendant dated Ex. PW1/44 (Colly) 22.02.2021.
11. Non Starter Report. Ex. PW 1/45
12. Ledger Account maintained Ex. PW1/46 (Objected by plaintiff. to being incomplete as the ledger is not reflecting the payments made by defendant of Rs.
44,82,490/-) CS (COMM.)/781/2022 Page 11 of 39 -12- Sr. Details of documents Exhibit No.
13. Affidavit under Order XI Ex. PW 1/47 Rule 6 (3) CPC.
14. Copy of Company Master Ex. PW 1/48 (Objected Data. being the plaintiff did not place on record the complete print out of Master Company data)
15. PW-1 was cross-examined at length by the defendant, which shall be discussed in the succeeding paras at relevant places.
16. PW-2 Sh. Lalit Prakash, Chief Manager, UCO Bank has proved Statement of account regarding RTGS Payment of Rs.44,82,548.41 paise, which was transferred from UCO Bank to the bank account of plaintiff on 02-02-2021, as Ex.PW-2/1.
17. PW-2, in his cross-examination, admitted that he has no personal knowledge about the facts of the present case and voluntarily stated that he was deposing on the basis of the record. He stated that he had joined as Chief Manager in the aforesaid branch of UCO Bank in February,2020. However, he could not tell the purpose for which the aforesaid amount was transferred from the said account to the account of plaintiff.
CS (COMM.)/781/2022 Page 12 of 39 -13-18. PW-3 Sh. Sanjeev Kumar, from the CGST Division has proved his affidavit along with accompanying documents (e-way bills) as Ex.PW-3/1.
19. On statement of counsel of plaintiff, PE was closed vide order dated 24-04-2024.
20. Defendants' evidence was led, during which, the defendant has examined its AR namely Sh. Sharvan Kumar as DW1. He led his examination-in-chief by way of affidavit (Ex.DW1/A) and deposed in terms of the averments made in the written statement. He relied upon following documents:-
Sr. Details of documents Exhibit/Mark
No.
1 Board Resolution dated 02-11-2023 Ex.DW1/1
2 Statement of UCO Bank Account of Ex.DW1/2
the defendant
3 Statement of Kotak Mahindra Bank Ex.DW1/3
account of the defendant
21. DW1 was also cross-examined at length, which shall also be discussed in succeeding paras at the relevant places.
22. Thereafter, on statement of AR of the defendant, DE was closed on 02-07-2024.
23. I have already heard Ld. Counsels for the parties. I have also gone through the material available on record including the written submissions filed by the plaintiff.
CS (COMM.)/781/2022 Page 13 of 39 -14-24. My issue-wise findings are as under:-
ISSUE NOS.2 AND 325. Firstly, I shall take up issue nos.2 and 3 one by one as both the said issues arise out of defence raised by the defendant in its written statement and would have direct bearing on the findings of issue no.1. The said issues are reproduced hereunder:-
Issue no. (ii) - Whether 04 Invoices (for Kundli, Sonipat Site), which have been raised on its own by the plaintiff for a sum of Rs.44,82,490/- were not verified by the defendant, hence not payable ? OPD.
Issue no. (iii) - Whether the plaintiff has concealed the fact that a sum of Rs.3,95,864/- has also been credited in the Bank Account of the plaintiff on 20- 01-2021 through Cheque No. 001189 drawn on Kotak Mahindra Bank, Kasturba Gandhi Marg, New Delhi-110001 ? OPD
26. Before discussing the rival arguments advanced on behalf of both the sides and appreciating the evidence available on record, it would be necessary to deal with the objections raised on behalf of defendant with regards to certain documents exhibited during chief examination of PW1. The defendant raised objection regarding exhibition of Board Resolution dated 05-08-2022 as Ex.PW1/1 (Colly.) on the ground that Minutes Book produced by the witness CS (COMM.)/781/2022 Page 14 of 39 -15- was fabricated. Same would hardly constitute any objection on the ground of mode of proof. Rather, such objection actually touches upon the evidentiary value of the said document. As is noted above, PW1 produced Minutes Book containing the said Board Resolution, through which he was authorized by the plaintiff company to depose on its behalf. It is relevant to note that no material question was put to PW1 on behalf of defendant, except that the said Board Resolution was only signed by Sh. Vijay Garg, Chairman/ Director of the plaintiff company and same was not paginated. No provision is brought to the notice of the Court on behalf of defendant, which obliges that Minutes Book should be duly paginated. Pertinently, the defendant also objected to Original Invoices alongwith Goods Receipts/ Lorry Receipts Ex.PW1/2 to Ex.PW1/23 on the ground of mode of proof, despite the fact that the defendant has admitted the said documents in the affidavit concerning admission/ denial of documents of plaintiff, filed alongwith its written statement. Likewise, the defendant raised objection regarding exhibition of 4 other original Invoices alongwith Goods Receipts/ Lorry Receipts and E-way Bills Ex.PW1/24 to Ex.PW1/37 on the ground that said documents were forged and fabricated and same were filed after filing of replication. Again, there is no merit in the said objection for the reasons that plea regarding said document being forged and fabricated, is essentially related to evidentiary value to be attached with said CS (COMM.)/781/2022 Page 15 of 39 -16- documents. Moreover, said documents were filed on record with the leave of the Court while allowing allowing the application under Order XI Rule 1 (1)(c)(ii) CPC, as applicable to the Commercial Courts Act, 2015, vide order dated 12-7-2023, passed by Ld. Predecessor of the Court. Likewise, the objection raised by defendant in respect of documents Ex.PW1/38 to Ex.PW1/43, Ex.PW1/46 and Ex.PW1/48 are also without any substance, inasmuch as such objections are not found to be with respect to mode of proof but regarding such documents being not admitted by the defendant for various reasons as mentioned therein.
27. Now, I shall proceed to decide these two issues one by one. Firstly, I shall decide issue no.2.
28. The initial burden to prove issue no.2 was placed upon defendant company in view of the defence raised by it in its written statement that all 4 invoices for Kundli, Sonipat site were raised by plaintiff on its own and same were not verified by the defendant company, due to which, the defendant is not liable to pay the said amount.
29. As already noted above, the defendant has examined only one witness namely Sh. Sharvan Kumar, its AR, as DW1 in order to discharge the burden of proving said issues. No doubt, the said witness has deposed on the similar lines during his examination-in-chief by way of affidavit Ex.DW1/A. However, during his cross-examination, he CS (COMM.)/781/2022 Page 16 of 39 -17- stated that the project of the defendant company at Faridabad is in the name of 'Grand Retreat' and the project of the defendant company at Kundli, Sonipat is in the name of 'Lake Grove'. He had no knowledge as to whether or not the above two projects were financed by any financer or the defendant company had borrowed any funds from any such financer. He also did not have any knowledge about the accounts of aforesaid two projects. He also had no knowledge as to what is the meaning of an Escrow Account.
30. In his further cross-examination,DW1 admitted that details of every purchase made by defendant company are uploaded on GST portal and also that for the entire State of Haryana, there is only one GST portal. He stated that he personally did not upload the details of the purchases on the GST portal and had no knowledge about the details of purchases uploaded on the GST portal by the defendant company.
31. Further, it has been categorically deposed by PW2 i.e. the bank official of UCO bank,where account was being maintained by the defendant, that said account is an Escrow Account. This fact is also duly reflected in the Account Statement (Ex. PW2/1) proved by this witness. His oral testimony, as also the Account Statement Ex. PW2/1 have gone unchallenged from the side of the defendant.
CS (COMM.)/781/2022 Page 17 of 39 -18-32. From above, it is quite evident that the defendant company was developing project in the name of 'Lake Grove' at Kundli, Sonipat site and in the name of 'Grand Retreat' at its Faridabad site. Further, it also stands duly established from the testimony of PW2 and Account Statement Ex. PW2/1 that the account maintained by defendant with UCO Bank, Parliament Street, New Delhi was an 'Escrow' account. Further, it stands proved from the admission made by DW1 that one Swami Investment Fund had financed an amount of Rs.30 crores on 01.02.2021 to the defendant for its Lake Grove project at Kundli, Sonipat Site.
33. On the other hand, PW1, when confronted with the stamps appearing at portions encircled at points A on Ex. PW1/25, Ex. PW1/27, Ex. PW1/29, Ex. PW1/31, Ex. PW1/33, Ex. PW1/35 and Ex. PW1/37 during cross examination, denied that such stamps do not belong to defendant company or that same have been fabricated by the plaintiff company. The witness was also confronted with the stamp appearing at point B on Ex. PW1/20 and after going through the same, he admitted that said stamp appearing at point B appearing on Ex. PW1/20 is different from the stamp appearing at points A on Ex. PW1/25, Ex. PW1/27, Ex. PW1/29, Ex. PW1/31, Ex. PW1/33, Ex. PW1/35 and Ex. PW1/37. Further, true copies of Certificate of Incorporation of defendant company were also shown to this witness and after going through the same, witness CS (COMM.)/781/2022 Page 18 of 39 -19- stated that the invoices in question were raised by plaintiff company in the name of TDI Infracorp India Ltd and voluntarily stated that said name of the defendant company is available in the Master Data available on the official website of Ministry of Corporate Affairs, as well as in the Purchase Orders. Said documents were then exhibited as Ex. PW1/D1 (Colly.) (running into two pages). PW1 however denied the suggestion that the plaintiff company never supplied the material at Kundli Site of the defendant company or that payments made by defendant company to the plaintiff company in respect of material supplied at Faridabad Site, were wrongly and illegally appropriated against the material allegedly supplied at Kundli site. He also denied that invoices Ex. PW1/24, Ex. PW1/28,Ex. PW1/30 and Ex. PW1/34 were fabricated by the plaintiff company or that is why, the plaintiff company did not file back side portion of these four invoices initially along with the plaint or that the defendant company has no liability to pay any amount against the aforesaid four bills or that the plaintiff dishonestly filed the present suit on the basis thereof.
34. PW3 is none else but the concerned Superintendent, CGST Division, of Panipat Range, Haryana. He produced relevant records of defendant company regarding inward supplies received by it from the plaintiff company, as declared by defendant while uploading GSTR- 2A Form CS (COMM.)/781/2022 Page 19 of 39 -20- on the portal of GST. The said records has been proved by him as PW3/1 (Colly.).
35. PW-3 stated, in his cross-examination, that he had not brought any separate authorization letter in his favour to produce the summoned record before the Court in the present case and voluntarily stated that he being the Head of Range-6, Panipat Division, was duly competent and authorized to produce the summoned record and to depose before the Court. He stated that the area of Sonipat, Bhiwadi and Faridabad do not fall within the range of Panipat Division and therefore, he admitted that the record brought by him i.e., Ex. PW3/1 (Colly) do not reflect the transactions which occurred within the range of Sonipat, Bhiwadi and Faridabad. He voluntarily stated that all three of them i.e. Sonipat, Bhiwadi and Faridabad are three separate ranges. He also admitted that on the basis of record Ex.PW3/1 (Colly), it cannot be said that the goods were actually supplied by the seller to the buyer or not and voluntarily stated that said record reflects the self declaration furnished by the concerned Assessee on the portal of GST Department. In response to Court Question
-can you please explain as to whether or not the concerned Assessee is obliged under the GST law to register separately in all the relevant ranges situated/created within one particular State, he replied that one Assessee is obliged to register itself only under one range of the particular State and all the transactions relating to such Assessee, CS (COMM.)/781/2022 Page 20 of 39 -21- which take place throughout all the districts situated within such State, shall be reflected on the portal of the said range of the State, with which the Assessee is so registered. In response to further Court Question - what is the status of registration of M/s TDI Infracorp India Ltd./defendant in the State of Haryana and the transactions relating to the defendant with regard to the State of Haryana for the relevant period of which record had been produced by him, he replied that as per record of GST Department, the defendant herein is registered with Panipat range in the State of Haryana and that is why, all the transactions relating to the defendant under the aforesaid GST IN number are reflected on the portal of Panipat range only for the entire State of Haryana.
36. After referring to the pleadings of parties and evidences, both oral as well as documentary, led by the parties during trial, Ld. Counsel of defendant submitted that the plaintiff has forged and fabricated these 4 invoices, e-way bills and transport challan receipts (Ex.PW1/24 to Ex.PW1/37) qua Kundli, Sonipat site of the defendant, in order to put up a false claim by way of present suit. In order to strengthen the said submission, he drew attention of this Court to the stamps appearing at points 'A' on backside of e-way bills/Transport Challan Receipts i.e.Ex.PW1/27, Ex.PW1/29, Ex.PW1/31, Ex.PW1/33, Ex.PW1/35 and Ex.PW1/37, wherein the name of defendant is appearing as 'TDI INFRACORP INDIA PVT. LTD.' Ld. Counsel of CS (COMM.)/781/2022 Page 21 of 39 -22- defendant vehemently argued that even as per the details of defendant company as available on its master data available at official website of Ministry of Corporate Affairs (Ex.PW1/48), it is beyond doubt that the name of the defendant company is 'TDI INFRACORP INDIA LTD.' and not 'TDI INFRACORP INDIA PVT. LTD.' as appearing on the aforesaid e-way bills/Transport Challan Receipts. He further submitted that the plaintiff had supplied the goods/ material to the defendant for its Faridabad site in respect of which invoices/ transport receipts have been proved by PW1 as Ex.PW1/2 to Ex.PW1/23, on which the name of defendant is clearly mentioned as 'TDI INFRACORP INDIA LTD.' in the stamps appearing on said invoices/transport challans receipts (Ex.PW1/2 to Ex.PW1/23). In view thereof, Ld. Counsel of defendant submitted that the plaintiff company had due knowledge of the fact that name of the defendant is 'TDI INFRACORP INDIA LTD.' but still it went ahead to forge and fabricate all these 4 invoices/e-way bills/ challans receipts (Ex.PW1/24 to Ex.PW1/37) by showing name of the defendant as 'TDI INFRACORP INDIA PVT. LTD.' in the stamps appearing at points 'A'. The said documents and stamps would clearly falsify the claim raised by the plaintiff in the present suit. He, therefore, urged that the defendant has been able to discharge the burden of proving the aforesaid issue and thus, suit of the plaintiff may be dismissed.
CS (COMM.)/781/2022 Page 22 of 39 -23-37. Per contra, Ld. Counsel of plaintiff vehemently argued that the goods/ material were supplied by plaintiff to the defendant at its Kundli, Sonipat site through transporter/carrier and acknowledgment by way of stamping put by the employee/ official of the defendant on e-way bills/ challan receipts were being issued to the driver of the transport company and thus, it cannot be expected from transport company to verify about the actual stamp put by employee/official of the defendant while accepting the goods /material at the site. He also heavily relied upon the testimony of PW3 and the summoned record [Ex.PW3/1 (Colly.)] proved by said witness, in order to submit that the defendant company has claimed input from GST department in respect of these 4 invoices, which are now being disputed by it. Thus, the defendant cannot be allowed to take advantage of its own wrong by disputing the factum of having received the goods/ material from the plaintiff for its Kundli, Sonipat site. He, therefore, urged that the defendant has failed to discharge the burden of proving the said issue. Rather, the plaintiff has been able to prove that it had actually supplied goods/material to the defendant for its Kundli, Sonipat project against said 4 invoices, by virtue of e-way bills/transport challan receipts (Ex.PW1/24 to Ex.PW1/37).
38. As already mentioned above, DW1, who is the sole witness examined by the defendant, has admitted during his cross-examination that account of defendant company CS (COMM.)/781/2022 Page 23 of 39 -24- maintained with UCO Bank, Parliament Street Branch, New Delhi was an Escrow Account. Not only this, he has also admitted that one Swami Investment Fund had financed Rs.30 Crores on 01.02.2021 to the defendant company for its Lake Grove project site at Kundli, Sonipat, Haryana.
39. At this juncture, it would be relevant to note the meaning of an Escrow account. As per the relevant information available on Google, an escrow account is a temporary pass through account held by a third party during the process of a transaction between two parties. Further, an Escrow account is a special kind of account that holds money or assets until certain conditions are met. Escrow accounts in India are used for real estate, digital lending, e- commerce, digital marketplaces, online gaming, and more. That being so, it is beyond challenge that the defendant could not have made any payment to anyone from such escrow account without the approval/consent of Swami Investment Fund, which had financed Rs.30 Crores on 01.02.2021 to the defendant company for its Lake Grove project site situated at Kundli, Sonipat, Haryana.
40. Before proceeding further, it may also be noted that the total amount of these 4 invoices raised against Kundli, Sonipat site comes out to Rs.44,82,490/-. It is duly established on record that the defendant company had made the payment of Rs.44,82,490/- to the plaintiff through RTGS from its bank account maintained with CS (COMM.)/781/2022 Page 24 of 39 -25- UCO Bank, Parliament Street Branch, New Delhi on 02- 02-2021. This fact is not only suggested to PW1 during his cross-examination on behalf of defendant, but, is also an admitted position from the side of defendant. Not only this, DW1 has also stated about the said fact during his examination-in-chief by way of affidavit (Ex.DW1/A) and also during his cross-examination on behalf of plaintiff.
41. At this juncture, it would also be relevant to refer to the relevant portion of cross-examination of DW1 conducted on 02-7-2024, wherein he admitted that the defendant had paid the exact amount of Rs.44,82,490/- to the plaintiff against these 04 invoices as per their details mentioned in Para no.9 of his affidavit(Ex.DW1/A) from the bank account of defendant maintained with UCO bank, Parliament Street Branch.
42. The actual controversy involved in the matter is that the plaintiff has claimed that said payment of Rs.44,82,490/- was made by defendant against these 4 invoices for its Kundli, Sonipat site, whereas, the defendant has claimed that said payment was made by it to the plaintiff against other invoices raised for materials/goods supplied for its Faridabad site. However, the evidences led by both the sides, as available on record, would clearly establish that the defendant has failed to prove its defence that said payment was made by it for the goods/material supplied by the plaintiff for its Faridabad site or that these 4 invoices CS (COMM.)/781/2022 Page 25 of 39 -26- raised for Kundli, Sonipat site are forged and fabricated for the following reasons:-
42.1. As already noted above, the total amount against these 4 invoices raised for Kundli, Sonipat site is exactly the same amount which is shown to have been paid by defendant to the plaintiff through RTGS on 02-02-2021;
42.2. Being Escrow account created out of finance provided by Swami Investment Fund for Lake Grove project of defendant company at its Kundli, Sonepat site, it was not possible for the defendant to make any payment, what to say of such huge payment of Rs.44,82,490/-, out of said Escrow account against another project namely Grand Retreat at its Faridabad site, since such funds lying in UCO Bank, Parliament Street Branch, New Delhi could only have been utilized by the defendant for its project site at Kundli, Sonipat, Haryana, for which amount of Rs.30 crores was exclusively financed by Swami Investment Fund;
42.3. The relevant documents in the form of GSTR 2A {Ex.PW3/1(Colly.)} as produced and proved by PW3, would clearly falsify the defence raised by defendant in this regard. First of all, it may be noted, as also stated by PW3, that GSTR 2A is a kind of self-declaration furnished by the Assessee on the CS (COMM.)/781/2022 Page 26 of 39 -27- portal of GST department. The said Assessee in this case is none else but the defendant company, meaning thereby that the records Ex.PW3/1 (Colly.) contains self-declaration made by defendant company on the portal of GST department in respect of input claimed by it for the material/goods received by it from the plaintiff company. During Court's question, it was duly clarified by PW3 that an Assessee is obliged to register itself only under one particular range out of several ranges available within one State and all the transactions relating to said Assessee within that particular State during any particular period, are reflected on the portal of GST department. The said witness has produced relevant records relating to entire transactions regarding supply of materials/ goods by plaintiff to the defendant within the State of Haryana for the period from 07-3-2020 till 10-12-2020.
42.4. Further, a bare perusal of aforesaid records would show that the defendant company itself has shown all these 4 invoices in GSTR-2A uploaded by it on the portal of GST department and has claimed input thereupon. Not only this, all the details, including the details of e-way bills, amount of each invoice out of said 4 invoices, details of transport challans/ receipts etc. as are found mentioned in Ex.PW1/24 to Ex.PW1/37, duly match with the details found CS (COMM.)/781/2022 Page 27 of 39 -28- mentioned by defendant itself in GSTR-2A form Ex.PW3/1(Colly.).The same would clearly establish that the defendant itself had acknowledged the receipt of materials/ goods from the plaintiff during relevant period against these 4 invoices during the relevant period. However, the defendant company is now raising false defence in the present suit that it did not receive any material /goods against the said 4 invoices from the plaintiff;
42.5. As already noted above, DW1 has also admitted that details of every purchase made by defendant is uploaded on the GST portal, as also that there is only one GST portal of defendant for the entire State of Haryana. Despite the fact that he claimed himself to be working as Assistant Manager Accounts with the defendant company, he feigned ignorance regarding the details of purchases so uploaded by defendant on GST portal. The same would clearly show that said witness has conveniently tried to evade answer to the question put to him on behalf of plaintiff in that regard. Thus, such evasive response furnished by DW1 would lend credence to the claim raised by plaintiff that it had actually supplied material/ goods against these 04 invoices to the defendant for its Kundli, Sonipat site.
42.6. There is no merit in the argument raised on behalf of defendant that filing of GSTR-2A form by the CS (COMM.)/781/2022 Page 28 of 39 -29- defendant on GST Portal, should not operate as admission of liability on its part, as self-declaration is furnished for account purposes alone. There is an inherent contradiction in such submission made on behalf of defendant, in the sense that on the one hand, the defendant has claimed benefit of input of GST while filing self declaration GSTR-2A form Ex.PW3/1(Colly.), thereby showing therein the details of materials /goods received by it against these 04 invoices, and on the other hand, it is now disputing to have received any material from the plaintiff company against those very 04 invoices.
Once, the defendant claimed input from the GST Department on the basis of these 04 invoices, now it cannot be allowed to dispute the authenticity and genuineness of said invoices before the Court of law.
43. In the light of aforesaid discussion and the reasons mentioned hereinabove, this Court is of the view that the defendant has failed to discharge the burden of proving issue no.2 even on the basis of preponderance of probability. Accordingly, the issue no.2 is decided against the defendant and in favour of the plaintiff.
44. Now, I shall decide issue no.3. The defendant has raised defence in the written statement that the plaintiff has concealed the fact that a sum of Rs.3,95,864/- was also credited in the Bank Account of plaintiff on 20-01-2021 CS (COMM.)/781/2022 Page 29 of 39 -30- through Cheque No. 001189 drawn on Kotak Mahindra Bank, Kasturba Gandhi Marg, New Delhi-110001. However, the plaintiff explained by way of replication that the said payment of Rs.3,95,864/- was made by defendant on 20-1-2021 on account of interest for the delayed payment against the material/ goods supplied by it to the defendant for its Kundli, Sonipat project, as also that the plaintiff has filed the present suit for recovery of money in respect of outstanding amount for supply of goods/ material to the defendant against invoices raised for its Faridabad project and therefore, it did not disclose about the said amount having been received from the defendant.
45. As already noted above, the initial burden to prove this issue was also placed upon the defendant, which has examined only one witness namely Sh. Sharvan Kumar, its AR, as DW1 in order to discharge the burden of proving said issue. No doubt, the said witness has deposed on the lines of defence in this regard during his chief examination by way of affidavit (Ex.DW1/A). During his cross- examination, he denied the suggestion that the defendant had made payment of Rs.3,95,864/- towards interest on account of delayed payment against Lake Grove, Kundli site project. On the contrary, no question whatsoever was put to PW1 in this regard during his cross-examination. Not even a suggestion was put to said witness on behalf of defendant that it had paid the amount of Rs.3,95,864/- to CS (COMM.)/781/2022 Page 30 of 39 -31- the plaintiff against material/ goods for its Faridabad project site.
46. Apart from bald statement made by DW1 during his examination-in-chief, no cogent or positive evidence whatsoever has been led by defendant to discharge the initial burden to prove this issue. It may be noted here that it was not difficult for the defendant to establish the factum of making payment of Rs.3,95,864/- against supplies made by plaintiff for its project at Faridabad site by producing its books of account being maintained in the regular course of business. Such ledger account of plaintiff as would have been maintained by the defendant in its books of account, would have clearly established that such payment of Rs.3,95,864/- had actually been made by defendant against supply of material received from the plaintiff for its project at Faridabad site. Having failed to produce such ledger accounts, coupled with the fact that no question whatsoever was put to PW1 in this regard during his cross-examination, the Court is of the considered view that the defendant has failed to discharge the burden of proving this issue. Accordingly, this issue is also decided against the defendant and in favour of the plaintiff.
ISSUE NO.1
47. Now, I shall take up the issue no.1, which is reproduced hereunder:-
CS (COMM.)/781/2022 Page 31 of 39 -32-Issue no. (i) - Whether the plaintiff is entitled for recovery of Rs.75,87,729/- from defendant?If so, from which of the defendants? OPP.
48. The onus to prove this issue was placed upon the plaintiff.
As already noted above, the plaintiff has examined three witnesses in all.
49. It may be noted here that the defendant has raised a plea in its written statement that it had issued 4 cheques for security purpose to the plaintiff. At the same time, it also took the stand that it had made payment of Rs.45 lacs to the plaintiff in discharge of its legal liability against said 4 cheques. At the first instance, it may be mentioned that inter-se contradictory pleas have been raised by the defendant.In case, said 4 cheques were issued as security by defendant to the plaintiff, then in such an eventuality, there was no occasion for the defendant to make any payment of Rs.44,82,490/-against said 4 cheques. Moreover, the defendant has failed to disclose any particular date, month or year when said 4 cheques were provided as security to the plaintiff. Likewise, it is also not explained either in the written statement, or even during chief examination of DW1, as to why and under what circumstances said 4 cheques would have been issued as security to the plaintiff. In fact, it is a matter of record that there were ongoing business transactions between the parties to the present suit and the plaintiff had been supplying material/ goods to the defendant from time to CS (COMM.)/781/2022 Page 32 of 39 -33- time not only for its' project site at Kundli, Sonipat, but also, for it's project site at Faridabad. In this backdrop, it is difficult to digest that the defendant would have issued these 4 cheques as security in favour of the plaintiff.
50. Be that as it may, the defendant has also claimed that it had made excess payment of Rs.5,58,363/- to the plaintiff in the following manner :-
S. No. Particulars Payment date Amount (Rs.) 1 Admitted amount received by 1,20,59,351/-
the plaintiff 2 RTGS made via UCO Bank, 02-02-2021 44,82,490/-
Parliament Street, New Delhi -
110 001 3 Payment through cheque no. 20-01-2021 3,95,864/-
"001189" drawn on Kotak Mahindra Bank, Kasturba Gandhi Marg, New Delhi-
110001 Total amount paid by the defendant to the plaintiff 1,69,37,705/-
Less: 1,63,79,342/-
Total Amount payable of 11 invoices of the supplies made at the Faridabad Site (Para No.6 & 9) Amount overpaid by the defendant to plaintiff 5,58,363/-
51. It is not clear as to when actual outstanding dues against defendant was Rs.43,19,991/-, then what led the defendant to issue these four cheques amounting to Rs.45 lacs to the plaintiff. For the said purpose, it would also be useful to refer to the relevant portion of cross-examination of PW1. In his cross-examination, PW1 denied that payment whatsoever made by the defendant with respect to material supplied at Faridabad site, was received in the aforesaid bank account only. He voluntarily stated that payments were also received in another Bank Account with Canara CS (COMM.)/781/2022 Page 33 of 39 -34- Bank maintained by the plaintiff. He also denied that there was no amount whatsoever due towards the defendant for the material received by them from the plaintiff, or that the entire payment against these four cheques (Ex.PW1/39 to Ex.PW1/42) had already been made by defendant to the plaintiff, or that the plaintiff has filed false suit against the defendant or that the complaint case under Section 138 NI Act filed by plaintiff against the defendant and its Directors is a false complaint.
52. Further, DW1 has admitted that no communication was made by defendant to the plaintiff for return of the cheques handed over to the plaintiff but he again said that the said part was being looked after by the Purchase Department of the defendant company. He, however, admitted that he did not consult with the Purchase Department of the defendant before filing his affidavit in evidence (Ex.DW1/A). DW1 further stated that it was not within his knowledge as to what was the actual outstanding amount due against Faridabad site project and therefore, he could not admit or deny the suggestion that the actual outstanding principal amount due against Faridabad site project towards plaintiff was Rs.43,19,991/-.
53. What is more important to note is that even if defendant had made excess payment as claimed by it in its written statement, none had prevented it from taking recourse to appropriate legal proceeding to recover excess payment of Rs.5,58,363/- against the plaintiff company. The defendant CS (COMM.)/781/2022 Page 34 of 39 -35- could have also filed its counter claim, along with written statement while defending the present suit or it could have filed separate recovery suit against the plaintiff company. However,none of the said two courses was adopted by defendant for the reasons best known to it. The defendant did not file or initiate any legal proceedings for recovery of the excess payment,which is claimed to have been made by defendant to the plaintiff till date.
54. There is no substance in the submission made on behalf of defendant that it had made excess payment to the plaintiff out of good business relation between the parties or for the reason that the defendant was expecting to receive further material from the plaintiff in future as well. The dispute admittedly arose between the parties regarding outstanding dues payable by defendant to the plaintiff,when demand notice dated 10-02-2021 was got issued by plaintiff to the defendant. At least at that point of time, the defendant ought to have woke up from the slumber ness to realize that parties were no more enjoying any good relationship any further. Further, when the plaintiff filed the present suit seeking recovery of amount against the defendant, it was incumbent upon defendant to initiate appropriate legal proceedings against the plaintiff.
55. The defendant itself has admitted that it had issued said 4 cheques amounting to Rs.45 lacs towards discharge of its legal liability in favour of the plaintiff. However, all these 4 cheques were got dishonoured on their presentation by CS (COMM.)/781/2022 Page 35 of 39 -36- the plaintiff by its banker. Now, the defendant has raised a defence that it had paid amount of Rs.44,82,490/- through RTGS on 02-02-2021 against discharge of its liability qua said 4 cheques. In the opinion of this Court, such defence is farce in the sense that when the total amount of these 4 cheques was Rs.45 lacs, then, why the defendant transferred a sum of Rs.44,82,490/- through RTGS against discharge of liability against said 4 cheques. This is some thing, which is unacceptable in the eyes of law. While applying the test of reasonable and prudent person, it cannot be accepted that the defendant would have made payment of Rs.44,82,490/- against discharge of liability of Rs.45 lacs qua said 4 cheques. Hence, the said defence raised by defendant is hereby rejected.
56. The testimony of PW1 has gone unchallenged from the side of the defendant, which could not demolish or impeach the testimony of said witness through litmus test of cross-examination. Likewise, the sole witness of defendant could not disprove the case of plaintiff during his examination. Hence, the Court is of the view that the plaintiff has been able to prove that a sum of Rs.43,19,191/- was due and outstanding towards the defendant as on 13-12-2020.
57. This brings me down to the next question as to whether the defendant is also liable to pay any interest on account of delayed payment.
CS (COMM.)/781/2022 Page 36 of 39 -37-58. In this regard, the relevant term and condition relating to payment of interest, as printed on the invoices, may be reproduced here as under:-
"* Interest @ 24% p.a. will be charged if payment is not made within 10 days."
59. In his cross-examination, DW-1 has admitted that there is Clause no.4 of the Terms and Conditions for payment of interest against delayed payment appearing in Invoices in question (Ex. PW1/2 to Ex. PW1/37) and also that the defendant never raised any written objection against the aforesaid Clause regarding payment of interest with the plaintiff at any point of time before filing of the present suit. In view of categorical admission made by DW1, there is no iota of doubt that there is a contractual agreement between the parties with respect to rate of interest on delayed payment.
60. Section 34 CPC clearly provides that where the liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest, or where, there in no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions. Keeping in view the above discussion, in my opinion, it has been established that in the case in hand, there was commercial transaction between the parties and also that the CS (COMM.)/781/2022 Page 37 of 39 -38- interest claimed by the plaintiff is neither excessive nor exorbitant.
61. The plaintiff has also claimed the cost of the suit. Keeping in view the provisions contained in Sections 35 and 35A CPC, it has been established that the defendant failed to pay the outstanding dues not only despite service of legal notice, but also, despite service of summons of the suit upon it. Therefore, the defendant is responsible for the cost of the litigation to the extent of court fee and lawyers fee etc. as per the relevant rules. In my view, the plaintiff is accordingly entitled for the cost of litigation against the defendant.
62. Considering all the facts and circumstances of the case, the Court is of the opinion that the plaintiff is entitled to recover pre-suit interest at the agreed contractual rate from the defendant till the date of filing of the suit.
63. Therefore, this Court is of the view that the plaintiff is also entitled to recover pre-suit interest @ 24% from the defendant from 23-12-2020 till filing of the Suit.
64. As regards pendent-lite and future interest, the plaintiff has claimed it at the rate of 24% per annum. However, the Court is of the view that it is on higher side keeping in view the overall facts and circumstances of the case. Interest of justice would be met by awarding pendent-lite and future interest @ 12% per annum from the date of filing of the suit till the date of realization. Issue no. 1 is decided in these terms.
CS (COMM.)/781/2022 Page 38 of 39 -39-RELIEF:
65. In the light of the aforesaid discussion, the Court is of the view that the plaintiff has been able to prove its case on the basis of preponderance of probability. The suit is decreed in favour of the plaintiff and against the defendant and thus, the following reliefs are granted:-
65.1. The plaintiff is entitled to recover Rs.43,19,991/-
[Rupees Forty Three Lacs Nineteen Thousand Nine Hundred and Ninety One] from the defendant;
65.2. Pre-suit interest is awarded in favour of the plaintiff and against the defendant @ 24% per annum from 23-12-2020 till filing of the suit;
65.3. Pendente lite and future interest is awarded in favour of the plaintiff and against the defendant @ 12% per annum from the date of filing of the suit till its realization;
65.4. Cost of the suit is also awarded in favour of the plaintiff.
66. Decree sheet be prepared accordingly.
67. File be consigned to Record Room, after due compliance.
Digitally signedAnnounced in the open Court by VIDYA
VIDYA PRAKASH
On 21st Day of September, 2024.
PRAKASH Date:
2024.09.21
16:15:15 +0530
(VIDYA PRAKASH)
DISTRICT JUDGE (COMMERCIAL COURT)-02
PATIALA HOUSE COURTS, NEW DELHI
CS (COMM.)/781/2022 Page 39 of 39