Delhi District Court
Averments Of The vs . on 19 September, 2022
~1~
In the court of Sh. Ashwani Kumar Sarpal, District Judge
(Commercial Court-05), Central District
Tis Hazari Court, Delhi.
Kapil Aggarwal
vs.
Satbir Saini & another
[CS (Comm) No.- 3475/2021]
Date of institution---20-9-2021
Date of decision------19-9-2022
(Suit for recovery of Rs. 6,97,732/-)
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JUDGMENT:-
Supreme Court in Kishore Samrite vs. State of UP (2013) 2 SCC 398 summed up the law relating to concealment of material facts and abusing the process of the court. Where a party is guilty of suppression of material facts and is not approaching the court with clean hands and thereby abusing process of the court, then he is not entitled to any relief whether interim or final.
~2~ Supreme Court even asked the subordinate courts to take stern actions against such type of litigants including for contempt, perjury and imposition of heavy costs who have no respect for the court and coming forward with their case based upon falsehood.
In another case Dalip Singh vs. State of UP (2010) 2 SCC 114 Hon'ble Supreme Court held that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
AVERMENTS OF THE PLAINTIFF
1. Plaintiff filed this suit for recovery in the capacity of proprietor of M/s. Prime Marketing, having office at Pahar Ganj, Delhi and dealing in the business of manufacturing of Aluminum Composite Panel, plastic window etc., whereas defendant no. 1 is a proprietor of defendant no. 2 firm in the name of M/s. Saini Glass & Aluminum Fabrication situated at Bahadurgarh, Haryana.
According to the averments of the plaintiff, his proprietorship firm started supplying various goods to the defendant from time to time by raising bills since year 2018 on basis of orders placed through telephone and personal visit of defendant no. 1 by coming at his address in Paharganj, Delhi but no written agreement was executed. If para no. 14 of the plaint is taken into consideration, then it is clear that all the negotiations relating to supply of the goods took place between the parties in ~3~ Delhi and the goods were also sent from address of Paharganj, Delhi. It is also stated that plaintiff was maintaining running account and payments made by the defendant from time to time were adjusted but still sum of Rs. 6,97,732/- was outstanding against him. When defendant did not make this payment despite various requests and service of legal notice dated 6-3-2021, then the present suit for recovery was filed against the defendant with interest @ 18% p.a. after completing the necessary formality of Pre-Institution Mediation as required under Section 12-A of Commercial Courts Act. DLSA report shows that despite service of the notice twice, no one appeared for the defendant before mediator and proceedings were closed as non-starter.
It is important to mention here that plaint is lacking number of material facts, important details and particulars relating to transaction and to ascertain number of facts, the documents annexed with the plaint are required to be seen every time and in this regard, some observations were also made in the order dated 14-7-2022 while dealing with application of the defendant under Order 7 Rule 11 CPC.
DEFENCE OF THE DEFENDANT
2. Defendant contested the case and in his written statement admitted that he used to purchase the goods from plaintiff from time to time since year 2018 but alleged that he had already made entire payments through online as well as in cash in respect of the goods received and nothing was outstanding against him. In this regard, he relied upon bank statements and ~4~ ledger statements of his own as well as issued by plaintiff. Defendant also stated that in respect of goods supplied, plaintiff never raised any objection for whole of the year 2018 and 2019 complaining about non receipt of payments and suddenly made false claim in March, 2020. Thus, defendant prayed for dismissal of the frivolous suit and also claimed litigation costs. Here if the written statement of the defendant is taken into consideration, then it is clear that he has also not given details of making payments, what payment was made through online and how much amount was paid through cash etc. SOME IMPORTANT PROCEEDINS OF THE CASE
3. Vide order dated 30-3-2022, belated written statement of the defendant was taken on record while allowing his application for condonation of delay subject to costs with further directions to file Statement of Truth and affidavit of admission denial of documents of plaintiff. He challenged that order in Hon'ble High Court but only cost part was stayed and proceedings of the case was allowed to be continued.
Defendant also moved an application under Order 7 Rule 11 CPC which was dismissed on 14-7-2022. Plaintiff moved an application under Order 11 Rule 1 CPC for production of some new documents only for purpose of confrontation of the defendant in his cross examination without basing any claim on the same, so that application of the plaintiff was allowed on 15-7- 2022.
~5~ At final arguments stage, defendant was permitted to place on record two certified copies of bank statements from Bank of Baroda and Yes Bank which were ordered to be considered while deciding this case and to be read in evidence due to no objection given by counsel for the plaintiff and those were exhibited as Ex. DX and Ex. DY respectively vide order dated 17-8-2022.
Defendant also moved one another application under Order 11 Rule 1 (10) CPC for placing on record some original additional documents, photocopies of which he exhibited during his evidence as Ex. DW1/1 (for which plaintiff had raised objection) and one certificate u/s 65B of Evidence Act but that application was rejected on 20-8-2022 by passing a detailed order on different grounds especially keeping in view some discrepancy in the photocopies filed on record and original sought to be produced.
Once again, defendant moved another application at final arguments stage under Order 18 Rule 17 CPC for his re- examination to exhibit the bank statements Ex. DX and Ex. DY. When on the basis of the no objection given by the counsel for the plaintiff, those bank statements being undisputed documents were already exhibited by the court as Ex. DX and Ex. DY, then there was no necessity to recall the defendant DW-1 to again prove the same. On this observation of the court, defendant withdrew his application on 31-8-2022.
~6~ ISSUES INVOLVED AND EVIDENCE LED BY PARTIES
4. After receipt of written statement of defendant, plaintiff opted not to file any replication and on the basis of the pleading of the parties, following issues were framed on 8-6-2022;
1. Whether plaintiff is entitled to recover suit amount as prayed for? OPP
2. Whether plaintiff is entitled to any interest, if so for which period and at what rate? OPP
3. Whether the defendant had already cleared and made the entire payment to the plaintiff of the goods received and nothing is due now? OPD
4. Relief.
Since, defendant was admitting all the facts narrated by plaintiff regarding receipt of goods and transactions taken place but was having only one defence that he had already made the entire payment and nothing is left due, so he was directed to lead his evidence first. In order to prove his defence, defendant himself only stepped into the witness box as DW-1 and closed his evidence. Plaintiff did not choose to examine any witness and also closed his evidence even without examining himself. I have heard counsel for both the parties and gone through the record. My decision on the above-mentioned issues are as under;
~7~ ISSUES NO. 1 TO 3
5. All these three issues are interconnected so are required to be decided together.
(a) Plaintiff placed on record 16 bills alongwith e-way bills and transport receipts through which he supplied goods to defendant from time to time from 6-4-2018 to 2-2-2021 worth Rs. 10,53,011/- from his Delhi office. Defendant has not disputed any of the bills or the payment reflected in it but infact admitted the receipt of the goods from plaintiff under those bills. The details of bills, amount of the same is mentioned by defendant DW-1 himself in Table-A in para no. 2 of his affidavit of evidence for which there is no dispute at all and plaintiff is also admitting the entries of the same as correct because the same are matching with his bills as placed on record.
(b) Defendant DW-1 further in Table-B in para no. 3 of his affidavit of evidence given details of 7 transactions of payments made by him through online and in cash to plaintiff through Yes Bank and Vijay Bank (which is predecessor bank of Bank of Baroda) amounting to Rs. 7,51,027/-. So far, the 6 online transactions made with plaintiff is concerned, plaintiff is admitting the receipt of the amount under it but he disputed receipt of Rs. 1 lakh cash allegedly given to Sh. Lalit Kumar Tomar, his ~8~ employee on 8-9-2018 which is mentioned at serial no. 6 of the Table-B. Undisputed bank statements issued by Yes Bank and Bank of Baroda Ex. DX and DY respectively also confirms the payments of Rs. 6,51,027/- credited in the bank account of the plaintiff. It means, plaintiff undisputedly out of total liability of Rs. 10,53,011/- received sum of Rs. 6,51,027/- from defendant through online transactions which means after reducing the payment made by defendant through online, balance was left at Rs. 4,01,984/- only. In such situation, there is no hesitation to say that claim made by plaintiff in this case showing balance left over amount at Rs. 6,97,732/- is totally false.
(c) Defendant in Table-B also relied upon making payment of Rs. 1 lakh in cash to employee of plaintiff on 8-9-2018. Plaintiff has denied the receipt of this payment of Rs. 1 lakh from the defendant through his alleged employee Sh. Lalit Kumar Tomar. Defendant did not examine Sh. Lalit Kumar Tomar, alleged employee of plaintiff who received cash amount of Rs. 1 lakh on 8-9-2018 nor he took any receipt of this payment from him. DW-1 stated in his cross examination that he had made this payment of Rs. 1 lakh in cash and not through any self cheque and this payment was not withdrawn from any bank which fact is contrary to his own ledger statement at point A in Ex. DW1/1, wherein it is mentioned that defendant had paid Rs. 1 lakh through self cheque to Sh. Lalit Kumar Tomar. Accordingly, it is held that defendant has failed to prove the making of ~9~ payment of Rs. 1 lakh in cash as shown in Table-B of his affidavit of evidence.
(d) However, Table-C in para no. 5 of affidavit of evidence of defendant is containing 7 other entries of making payments of total Rs. 3,55,279/- which are also reflected in the ledger account of the plaintiff Ex. DW1/2 as credit entries. These entries are other than online credit entries as already shown in Table-B but are made through Union Bank of India. This ledger statement Ex. DW1/2 belongs to plaintiff himself and is an admitted document because plaintiff also filed same statement of account on page no. 46 of paperbook. No doubt, defendant has not produced any bank statement of his account maintained in Union Bank of India through which these 7 payments were made but the receipt of the same is not denied by the plaintiff because his own ledger statement is showing these entries. Accordingly, it is held that plaintiff received total Rs. 1,00,6,306/- (6,51,027/- + 3,55,279/-) through online from defendant out of total liability of Rs. 10,53,011/- and balance liability left was only Rs. 46,705/- after rejecting the cash payment of Rs. 1 lakh allegedly made on 8-9- 2018. These facts clearly establish that plaintiff has raised a false claim of leftover balance payment at Rs. 6,97,732/- in the suit and he has clearly come to court with unclean hands by making wrong submissions. Even in the legal notice dated 6-3-2020, the amount of Rs. 6,47,732 written both in words and figures has been shown due but the suit was filed by adding Rs. 50,000/- more. This discrepancy ~ 10 ~ also leads to the inference that plaintiff was changing his stand again and again and was not clear what balance principal amount was recoverable from the defendant.
(e) A very strange thing has been argued on behalf of plaintiff at final arguments stage that certain more goods worth Rs. 6,87,356/- were also supplied to the defendant from another firm of plaintiff situated in Faridabad on 9-3-2018 and 15-4-2018 as reflected in tax invoices Mark-A and Mark-B and computerized print out of tax paid, taken from website vide Mark-C and Mark-D and some part payments made to that firm by the defendant were adjusted in the ledger Ex. DW1/2 against 7 entries as shown by defendant in Table-C and infact no such payment through Union Bank of India was received against the 16 bills in question, the details of which are mentioned in Table-A. It is argued by counsel for the plaintiff that sum of Rs. 3,55,279/- received from defendant and as shown in Table-C actually belonged to the transactions taken place with the defendant from another Faridabad firm of plaintiff but entries of the same has been wrongly shown in the ledger Ex. DW1/2. However, this story cannot be believed because plaintiff has not brought on record any evidence to show that he was having other transactions with the defendant from his Faridabad firm. Plaintiff also not opted to examine himself to substantiate this story came on record first time during final arguments. Counsel for the plaintiff relied upon Mark-A and Mark-B but those documents were brought on record only to confront the defendant in his cross ~ 11 ~ examination and not to base any claim upon it as per submissions made by plaintiff and order dated 15-7-2022 passed in this regard, so these two documents cannot be considered to hold that any goods were supplied by the plaintiff to defendant from his another firm situated in Faridabad. Plaintiff moved an application under Order 11 CPC supported by affidavit of plaintiff in the capacity of proprietor of M/s. Prime Bond Industries annexed with documents Mark-A to Mark-D as well one ledger showing that he was having some transactions with the defendant from his Faridabad firm but in cross examination of DW-1 no ledger maintained by Faridabad firm filed along with this application was ever put. Moreover, these computer printouts of documents Mark-A to Mark-D are not proved legally without proving any supporting certificate under Section 65-B of Evidence Act. Otherwise also defendant has totally denied receipt of any goods from plaintiff from his Faridabad firm. Plaintiff has not brought on record to rebut this submission by showing any e-way bill or transport receipt to prove that some goods were supplied and delivered to defendant from his Faridabad firm. Moreover, the alleged transactions between plaintiff and defendant done from Faridabad firm are not in question in this case if the contents of the plaint and annexed documents are read and considered because in para no. 14 of the plaint, the goods under 16 bills were only supplied to the defendant from firm of plaintiff situated in Delhi and ledger filed along with the plaint (i.e. DW1/2) only belongs to the transactions taken place in respect of 16 ~ 12 ~ bills. There were no averments made in the plaint that total 7 entries of Rs. 3,55,279/- made in his ledger were relating to his other firm of Faridabad and not of Delhi firm. At no stage, plaintiff tried to rectify the alleged mistakes done in this regard in his own ledger by saying that inadvertently the entries of another transactions taken through Faridabad firm have been incorporated in the ledger maintained in Delhi firm. Accordingly, it has to be held that sum of Rs. 3,55,279/- received from defendant through Union Bank of India online were pertaining to the transactions involved in this case and not in respect of any other alleged transactions taken through Faridabad firm.
(f) Statement of DW-1 cannot be discarded merely on the ground that Tables mentioned in the same were not described in the written statement which is a fact allegedly beyond pleadings. Infact in my view these tables have been prepared for convenience of the court to understand the things in better manner especially when there is no dispute that contents of these tables showing details of transactions and payment made online were not in dispute at all. Mere fact that in the affidavit of evidence, DW-1 said that Rs. 53,290/- has gone in excess to the plaintiff which was not proved and even not alleged in the written statement itself is not sufficient to discard his statement as a whole. This amount according to defendant had gone in excess to the plaintiff because he was calculating sum of Rs. 1 lakh given in cash to employee of the plaintiff which ~ 13 ~ he could not prove. According to plaintiff, defendant was making more payments than the amount of the bills as shown in his own ledger Ex. DW1/1 which fact cannot be accepted as correct, but in this regard, the averments made by defendant that he was making advance payments of future purchases as shown in his own ledger cannot be disbelieved even if this fact is not specifically mentioned by him in the written statement. During cross examination of DW-1, plaintiff showed 4 cheques Ex. DW1/P-1 (colly) to him of total value of Rs. 4,90,000/- and only put question that one cheque was having different signatures then other three, but in what connection these cheques were issued, no further question was asked on behalf of plaintiff. Even those cheques were not presented for encashment. Hence, plaintiff could not connect these 4 cheques with the transactions connected with 16 bills in question in any manner.
(g) Counsel for defendant pointed out towards certain documents and argued that plaintiff himself is not sure in which capacity he is filing this suit, whether being proprietor of M/s. Prime Marketing or M/s. Prime Bond Industries. Plaintiff before filing this suit applied to DLSA for Pre-Institution Mediation under Section 12 of Commercial Courts Act and application moved to DLSA as well as certificate of non-starter issued on 16-8-2021 shows that he has applied in the capacity of proprietor of M/s. Prime Bond Industries and not as proprietor of M/s. Prime Marketing. In one affidavit annexed with the ~ 14 ~ application under Order 11 CPC dated 2-7-2022, plaintiff described himself as proprietor of M/s. Prime Bond Industries. Even vakalatnama executed in favour of his counsel, plaintiff described himself as proprietor of M/s. Prime Bond Industries. Plaintiff might be having some another firm but is appearing and basing his case in the capacity of his firm M/s. Prime Marketing only and not M/s Prime Bond Industries and these facts also questions and creates doubt about his locus standi to file this suit.
(h) All the above facts discussed above, it has to be held that due to keeping away from the court in evidence to clarify number of facts and creating totally new story beyond his plaint, there is no hesitation to say that he is concealing some material facts from the court intentionally and has based his case on false grounds for which he prima facie also becomes liable for perjury. Maximum to maximum, the leftover liability of defendant was only Rs. 46,705/- but plaintiff filed false suit claiming balance sum of Rs. 6,97,732/-. When from the evidence led by the defendant, it came on record that plaintiff had also received sum of Rs. 6,51,027/- through online as per admitted bank statements Ex. DX and DY and as shown in the Table-B in the affidavit of evidence of DW-1, then plaintiff changed the stand and created another story of some different transactions taken with his firm situated in Faridabad. Another story was also put forward that entries of online transaction of Rs. 3,55,279/- mentioned in his own ledger were received by other firm but wrongly entered in the ~ 15 ~ ledger statement of his firm situated in Delhi and pertaining to 16 bills in question. Plaintiff tried to mislead the court by changing his stand which was not the case of the plaintiff at all as per his own plaint. Shying away of plaintiff from the court to enter into witness box further draws an adverse inference against him that his stand taken now during arguments would have been demolished, had he appeared as a witness.
(i) Hon'ble Supreme Court in case Dhananjay Sharma vs. State of Haryana (1995) 3 SCC 757 strongly recommended for taking actions against those litigants who files false affidavits in the court. Supreme Court in New Okhla Industrial Development Authority vs. Ravindra Kumar Singhvi Civil Appeal no. 382/2012 decided on 15-2-2022 and Calcutta High Court in case Harji Engineering Works Pvt. Ltd. vs. Hindustan Steelworks Construction Ltd. CS 212/2018 decided on 14-9-2021 held that sanctity of Statement of Truth and affidavit filed along with the plaint have to be maintained and it should not be treated as simple formality. Here in this case, along with the plaint, plaintiff filed on record his Statement of Truth mentioning therein that he has not concealed any material fact, did not make any false statement, included all relevant information in the plaint and also understand that that in case of making false statement or concealment, he is liable for any action under law. He also additionally verified the contents of the plaint ~ 16 ~ as true and correct best to his knowledge but the above facts and circumstances clearly shows that plaintiff not only concealed material facts from the court, tried to mislead the court by playing fraud but also claim made in the suit regarding balance amount is totally false.
(j) Law is well settled as per decision of Hon'ble Supreme Court in S.P. Chengalvaraya Naidu vs. Jagannath AIR 1994 SC 853 that if a party comes to the court with unclean hands and base its claim on wrong facts or suppress the real facts, then his matter can be dismissed straightway without even considering any merits. A party who withholds vital documents in order to gain advantage in the suit would be clearly guilty of playing fraud on the court or a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation.
(k) Delhi High Court in Paramount Publicity vs. MCD 1995 I AD (Delhi) 91, Rohit Dhawan vs. G.K. Malhotra AIR 2002 Delhi 151, Columbia Sportswear Company vs. Harish Footwear CS (Comm) 1611/2016 decided on 28- 4-2017, Micolube India Ltd. vs. Maggon Auto Centre 2008 (36) PTC 231 and M/s Seemax Construction vs. State Bank of India AIR 1992 Delhi 197 held that in case of suppression of material facts, suit is liable to be dismissed without going into the merits.
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(l) Even after giving adjustment of online payments made by the defendant to plaintiff, still balance Rs. 46,705/- is left payable by defendant as held above but keeping in view the fact that plaintiff has come to the court with unclean hands and his suit is based upon false claims, he is held not entitled to this balance amount also. No question of grant of any interest is also made out. On the other hand, action of perjury and filing false claim under IPC is prima facie attracted against plaintiff. Accordingly, both these issues are decided against plaintiff and in favour of defendant.
6. ISSUE NO. 4 (RELIEF):- In view of the above findings, the present suit is dismissed. Plaintiff on the face of it is liable for perjury due to concealment of material facts, playing fraud upon the court and filing false claim in the court for which clearcut criminal action is made out against him under IPC but while relying upon the judgment of Hon'ble Supreme Court in Kishore Samrite vs. State of UP (2013) 2 SCC 398 referred above, I am of the view that imposition of heavy costs will serve the purpose in the interest of justice instead of sending criminal complaint against plaintiff before MM court under Section 195 CR.P.C. as it is his first fault. Defendant in his written statement has demanded Rs. 50,000/- towards compensation which my opinion is justified and it should be given to him as this much amount must have been incurred by him in defending this case by coming to court from Bahadurgarh on various dates of hearing, engaging a lawyer and for suffering some mental agony and harassment. Plaintiff is also directed to deposit Rs. 1 lakh in the ~ 18 ~ Prime Minister's Relief Fund and show the receipt of the same within 15 days in court, failing which this court will recover this amount suo moto by taking coercive action. Decree be prepared and file be consigned to record room. Digitally signed by ASHWANI ASHWANI KUMAR KUMAR SARPAL SARPAL Date:
2022.09.19 (Ashwani Kumar Sarpal) 14:16:11 +0530 Dt. 19-9-2022. District Judge-Commercial-5 Central District, Delhi.