Delhi District Court
Kamlesh Dhall...Proprietor, M/S ... vs Inzex Global Llp on 20 July, 2024
IN THE COURT OF SHRI PANKAJ GUPTA:
DISTRICT JUDGE, (S/W) (COMMERCIAL COURT)-01,
DWARKA COURTS : DELHI.
CS (COMM) NO. 18/2022
CNR No. DLSW01-009797-2020
In the matter of :
Kamlesh Dhall,
Proprietrix, M/S. Horizons Inc,
through its authorized representative
Mr. Manish Dhall,
Office at:
A-3/205, Janakpuri,
New Delhi-110058.
...........PLAINTIFF
Versus
1. Inzex Global LLP,
Registered office at:
Flat no. 802, ASPIRE 4,
Supertech Emerald Court,
Sector 93A Noida, Gautam Budhha Nagar,
Uttam Pradesh-201 301.
Also at:
C-82, Sector 88,
Noida, Gautam Budhha Nagar,
Uttar Pradesh-201 301.
Email:[email protected]
2. Vikram Singh (Designated Partner),
Inzex Global LLP,
Registered office at:
Flat no. 802, ASPIRE 4,
Supertech Emerald Court,
Sector 93A, Noida,
Gautam Budhha Nagar,
Uttar Pradesh- 201 301.
Also at:
C-82, Sector 88
Noida, Gautam Budhha Nagar,
Uttar Pradesh-201 301.
Email:[email protected]
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 1 of 34
CS Comm No. 18/2022
3. Anuja Sengar (Designed Partner)
Inzex Global LLP,
Registered office at:
Flat no. 802, ASPIRE 4,
Supertech Emerald Court
Sector 93A, Noida,
Gautam Budhha Nagar,
Uttar Pradesh- 201 301.
Also at:
C-82, Sector 88,
Noida, Gautam Budhha Nagar,
Uttar Pradesh-201 301.
Email:[email protected] ...........DEFENDANTS
Date of Institution : 24.12.2020
Date when the case
Reserved for Judgment : 20.07.2024
Date of Judgment : 20.07.2024
JUDGMENT
1. The plaintiff filed the suit for recovery of Rs. 4,26,764/- along with interest @ 18 % per annum from the date of institution of the suit till realization of money.
2. Initially, the plaintiff filed the present suit for recovery of the money against the defendant as an ordinary suit in the court of Ld. Additional District & Sessions Judge, South-West, Dwarka, New Delhi. Vide order dated 22.01.2022, the concerned court observed that the subject dispute was the commercial dispute within the meaning of Commercial Courts Act, 2015 (CCA) and sent the matter to the Ld. Principal District and Sessions Judge, South-West, Dwarka, Delhi to transfer to the court of competent jurisdiction. Vide order dated 29.01.2022, the Ld. Principal District and Sessions Judge, South-West, Dwarka, Delhi Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 2 of 34 CS Comm No. 18/2022 transferred the matter to the present court. Subsequently, the plaintiff moved the application under Order 6 Rule 17 of CPC seeking amendment of the plaint in view of the provisions CCA and the said application was allowed on 13.10.2022. Accordingly, the amended plaint filed by the plaintiff was taken on record.
3. In the plaint, it is stated that the plaintiff , sole proprietrix of M/s. Horizons Inc.(the firm), is engaged in the business of textile and garment printing services. The plaintiff has authorized Mr. Manish Dhall to sign, verify and file the present suit on her behalf vide authority letter 19.12.2020. It is also stated that the defendant no. 1, a Limited Liability Partnership firm ( LLP), is engaged in manufacturing and trading of wearing apparel/ fashion garments and the defendants no. 2 and 3 are its designated partners. It is also stated that the defendants approached the plaintiff to avail its service. After negotiations, the defendants placed the orders for printing work on the garments/ fabrics and assured the plaintiff to make the payments in time. Therefore, the plaintiff agreed to do the printing work of the fabric for the defendants at the mutually agreed rates. Defendants delivered the fabric on which the printing work was to be carried out through M/s. Brother Garments to the plaintiff. Plaintiff carried out the printing work on the fabric for the defendants and raised the invoices for total amount of Rs. 21,76,764/-from time to time. Plaintiff maintained the regular and running account in the name of the defendants according to which the defendants paid Rs. 17,50,000/- to the plaintiff. As such, Rs. 4,26,764/- is outstanding against the defendants which Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 3 of 34 CS Comm No. 18/2022 they have failed to pay despite receipt of legal notice dated 29.12.2019. Hence, the present suit.
4. Notice of the suit was duly served upon the defendants. In response thereto, the defendants filed the common written statement (WS) and raised the preliminary objections that the plaintiff has not paid the complete court fees; the suit is barred by the period of limitation; this court does not have the territorial jurisdiction to entertain the present suit; and Manish Dhall is not competent to institute the present suit on behalf of the plaintiff. On merit, it is stated that in the year 2017, the plaintiff assured the defendants that she would do the printing work on the fabric at the lowest price. Hence, the defendants placed the orders for printing work on 59,441 fabric pieces which were supplied to the plaintiff from time to time. Since, the printing work to be carried out was of multiple styles, hence, on negotiation, the plaintiff and the defendants agreed that the plaintiff would carry out the printing work @ Rs. 25/- per piece for all styles. In March 2017, the plaintiff sent an e-mail dated 16.03.2017 wherein she shared the printing rates on higher side than what was agreed between the parties. Consequently, the defendants replied the said e- mail vide its e-mail dated 16.03.2017 and informed the plaintiff that the rates should be revised. Vide e-mail dated 17.03.2017, the plaintiff sent wrong rates and demanded minimum Rs. 2,50,000/- without sending/ sharing the proper invoices. Defendants were shocked to receive the said email. Accordingly, the defendants informed the plaintiff that the rates were not as per its costing and vide e-mail dated 18.03.2017, requested the plaintiff to provide the Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 4 of 34 CS Comm No. 18/2022 invoices and to mention that the rate should be Rs.25/- per piece only. Plaintiff telephonically informed the defendants that the printing rate would be charged Rs. 25/- per piece. The defendants relied upon the same and placed the orders for the printing work. Plaintiff also informed the defendants that once the order for printing work of 59,441 pieces would be complete, he would raise all the invoices and hand over the same to the defendants. On the contrary, vide e-mail dated 13.04.2017, the plaintiff sent the excel sheet of the rates and raised the demand of Rs. 4,00,000/- on urgent basis. Since, the rates were on higher side, the defendants vide their 02 e-mails dated 15.04.2017, raised the issue that the plaintiff had charged on higher side and called upon her to review the same. Again, vide e-mail dated 15.04.2017, the defendants informed the plaintiff that the cost of printing work should be Rs. 25/- to 30/- only. Vide e-mail dated 06.05.2017, the plaintiff shared the excel sheet of the style and raised the demand of Rs. 4,00,000/-. Since, the plaintiff demanded Rs. 4,00,000/- vide e-mails dated 13.04.2017 and 06.05.2017 and telephonically also, though without issuing the proper invoices, the defendants paid Rs. 4,00,000/- on adhoc basis to the plaintiff on 08.05.2017. Plaintiff again assured that she would charge the rate @ Rs. 25/- per piece which would be reflected in the final invoices/bills. Accordingly, the defendants further paid Rs. 3,00,000/- and 1,50,000/- on 03.06.2017 and 07.06.2017 respectively to maintain the relationship with the plaintiff. On 30.06.2017, the plaintiff for the first time issued 15 invoices/bills dated 02.04.2017, 03.04.2017, 05.04.2017, 06.04.2017 and 30.06.2017 and called upon the defendants to clear the bills. The defendants were shocked to know that Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 5 of 34 CS Comm No. 18/2022 the plaintiff had charged the rates much higher than Rs.25/- per piece as agreed. Accordingly, the defendants called upon the plaintiff to rectify the rates. Simultaneously, the defendants drew a debit note of Rs. 4,09,264/- on 30.06.2017. Plaintiff assured that after completion of the order of printing on 59,441 pieces, she would refund excess amount and kept on asking for the adhoc payments. Consequently, the defendants made the adhoc payments on 13.07.2017, 24.07.2017, 26.07.2017 and 31.08.2017. As such, the defendants paid total amount of Rs. 17,50,000/- on adhoc basis to the plaintiff by 31.08.2017. On 08.09.2017, the plaintiff issued the last bill dated 06.09.2017 for Rs. 42,714/-. After reconciling the account, the defendants noticed that the plaintiff supplied 59,076 fabric pieces only out of total 59,441 fabric pieces. As such, there were shortage of 365 fabric pieces which the plaintiff had not returned to the defendant. Hence, the actual cost of printing work of 59,076 pieces @ Rs. 25/- should be Rs. 14,76,900/- only. However, the plaintiff received the payment of Rs. 17,50,000/- from the defendants. As such, the plaintiff received Rs. 2,73,100/- in excess from the defendants. Hence, vide e-mail dated 19.09.2017, the defendants requested the plaintiff to refund Rs. 2,73,100/-. However, vide e-mail dated 30.09.2017, the plaintiff refused to refund the said amount. Hence, it is prayed that the suit may be dismissed.
5. The plaintiff filed the replication and reiterated the averments made in the plaint.
6. Following issues were framed:-
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 6 of 34 CS Comm No. 18/2022
1. Whether this court does not have the territorial jurisdiction to entertain the present suit? OPD.
2. Whether the plaintiff is entitled for recover the amount as claimed, in the plaint? OPP
3. If, answer to issue no. 2 is in affirmative, whether the plaintiff is entitled to interest, if so at what rate and for which period ? OPP
4. Relief.
7. The plaintiff in order to prove her case has examined Manish Dhall as PW-1 and his affidavit in evidence is Ex.PW1/A. He relied upon the following documents:-
1. Copy of authority letter dated 19.12.2020 Ex.PW1/1 (OSR).
2. Copy of PAN Card of plaintiff Ex.PW1/2 (OSR).
3. Printout of company master data of defendant no. 1 Ex.
PW-1/4).
4. Copy of invoice 1718/000004 dated 02.04.2017 Ex. PW- 1/5.
5. Copy of invoice 1718/000006 dated 03.04.2017 Ex. PW- 1/6.
6. Copy of invoice 1718/000007 dated 03.04.2017 Ex. PW- 1/7.
7. Copy of invoice 1718/000008 dated 03.04.2017 Ex. PW- 1/8.
8. Copy of invoices 1718/000012, 1718/000013 both dated 05.04.2017 and 1718/000014, dated 06.04.2017 Ex. PW- 1/9 ( colly).
9. Copy of invoice 1718/000182 dated 30.06.2017 Ex. PW- 1/10.
10. Copy of invoice 1718/000183 dated 30.06.2017 Ex. PW- Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 7 of 34 CS Comm No. 18/2022 1/11.
11. Copy of invoice 1718/000184 dated 30.06.2017 Ex. PW-1/12.
12. Copy of invoice 1718/000185 dated 30.06.2017 Ex. PW-1/13 (page 42).
13. Copy of invoice 1718/000186 dated 30.06.2017 Ex. PW-1/14.
14. Copy of invoice 1718/000187 dated 30.06.2017 Ex. PW-1/15.
15. Copy of invoice 17-18/00119 dated 29.08.2017 Ex. PW-1/16.
16. Copy of invoice 17-18/00120 dated 29.08.2017 Ex. PW-1/17.
17. Copy of invoice 17-18/00121 dated 29.08.2017 Ex. PW-1/18.
18. Copy of invoice 17-18/00122 dated 29.08.2017 Ex. PW-1/19.
19. Copy of invoice 17-18/00123 dated 29.08.2017 Ex. PW-1/20.
20. Copy of invoice 17-18/00124 dated 29.08.2017 Ex. PW-1/21.
21. Copy of invoice 17-18/00147 dated 06.09.2017 Ex. PW-1/22.
22. Copy of invoice 17-18/00148 dated 06.09.2017 Ex. PW-1/23.
23. Copy of invoice No. 1718/000005 dated 02.04.2017 Ex. PW-1/23A.
24. Printout of ledger account dated 01.04.2017 to 19.12.2020 Ex. PW-1/24.
25. Printout of e-mails exchanged between the parties Ex. PW-1/25 (colly).
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 8 of 34 CS Comm No. 18/2022
26. Certificate Under Section 65B of Indian Evidence Act, 1872 Ex. PW-1/26.
8. The plaintiff also examined Suman Kumar as PW-2 and his affidavit in evidence is Ex.PW2/A. He relied upon the documents Ex. PW-1/2, Ex. PW-1/5 to Ex. PW-1/23 and Ex. PW-1/24.
9. PW-1 and PW-2 were cross-examined by counsel for the defendants.
10. The defendant has examined Vikram Singh as DW- 1 and his affidavit by way of evidence Ex. DW-1/A. He relied upon the following documents:-
1. Copy of Aadhar Card of defendants Ex. DW1/A2.
2. Copy of e-mails dated 16.03.2017, 17.03.2017. and 18.03.2017 Ex. DW1/1(colly).
3. Copy of e-mails dated 13.04.2017 and 15.04.2017 Ex. DW1/2(colly).
4. Copy of e-mail dated 08.05.2017 Ex. DW1/3(colly)
5. Copy of statement of the defendant along with copy of debit note dated 30.06.2017 Ex. DW1/4 (Colly).
6. Copy of bills received by the defendants Ex.DW1/5 (colly).
7. Copy of e-mail dated 19.09.2017 Ex.DW1/6.
8. Copy of e-mail dated 30.09.2017 Ex.DW1/7.
9. Certificate under section 65B of Indian Evidence Act Ex.
DW1/8.
11. DW-1 was cross-examined by counsel for the plaintiff.
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 9 of 34 CS Comm No. 18/2022
12. I have heard counsel for the plaintiff and counsel for the defendants have perused the material available on record.
13. Counsel for the defendants pleaded that the plaintiff filed the present suit for recovery of Rs. 4,26,764/- along with interest but has paid the court fees of Rs. 50/- only. As such, the plaintiff has paid the deficit court fees. Hence, the plaint should not be entertained.
14. Perusal of record reveals that during the covid-19 pandemic, the plaintiff filed the present suit along with the application seeking extension of time to deposit the complete court fees on 24.12.2020. On 04.01.2021, the plaintiff paid the deficit court fees of Rs. 6,540/-. It is nowhere the case of the defendants that the court fees of Rs. 6,540/- deposited by the plaintiff is deficit. Further, during the entire proceeding, the defendant has not pressed an issue to this effect. Hence, it can be held that the plaintiff has paid the complete court fees. Therefore, there is no substance in the plea raised by counsel for the defendants.
15. Counsel for the defendants also pleaded that the plaintiff has not complied with the mandatory provisions of section 12A of CCA. Hence, the present plaint should not be entertained.
16. As discussed above, initially, the plaintiff filed the present suit as non commercial suit which was assigned to the ordinary civil court. Subsequently, vide order dated 29.01.2022, the then Ld. Principal District and Sessions Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 10 of 34 CS Comm No. 18/2022 Judge, South-West, Dwarka, New Delhi, considering the fact that the subject dispute was the commercial dispute within the meaning of CCA, transferred the suit to the present court. During the proceedings, the defendants raised the objection to this effect. After hearing both the sides, vide order dated 12.07.2023, this court held that the suit was not bad with non compliance of 12(A) of CCA. As per record, the order is final as on date. Accordingly, the defendants are debarred from raising this issue at this stage.
17. Counsel for the defendants pleaded that Manish Dhall is not competent to sign, verify and institute the suit on behalf of the plaintiff.
18. In the present suit, admittedly, the plaintiff is the proprietrix of the firm. As per record, vide authority letter Ex. PW-1/1, the plaintiff authorized Manish Dhall to initiate the legal action on her behalf. It is nowhere the case of the defendants that the plaintiff had not authority to issue the said authority letter or that the said authority letter is defective in nature. Further, perusal of the record reveals that to the knowledge of the defendants, Manish Dhall actively participated in the subject transaction. Accordingly, there is no substance in the pleas raised by counsel of the defendants.
ISSUES NO. 119. The onus to prove the issues no. 1 was upon the defendants.
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 11 of 34 CS Comm No. 18/2022
20. Counsel for the defendants pleaded that as mentioned in the invoices raised by the plaintiff, all disputes are subject to Gurgaon jurisdiction only. Despite that, the plaintiff has filed the present suit before this court. Hence, this court does not have the territorial jurisdiction to entertain the present suit.
21. On the other hand, counsel for the plaintiff pleaded that the negotiations relating to the subject transaction took place at the office of the plaintiff situated within the territorial jurisdiction of this court. The defendant also made the payments in the bank account of the plaintiff maintained with the Indian Bank situated within the territorial jurisdiction of this court. Therefore, mere mentioning in the invoices that all the disputes are the subject to Gurgaon jurisdiction only is not sufficient to hold that this court does not have the jurisdiction to entertain the present suit.
22. In cross examination of PW-1, counsel for the defendants has not given any suggestion that no negotiations related to the subject transaction took place at the plaintiff's office or that no payment was made to the plaintiff in her account maintained with the Indian Bank situated within the territorial jurisdiction of this court.
23. PW-1 in his cross examination admitted that in the invoices, it is mentioned that all the disputes between the parties shall be subject to Gurgaon jurisdiction. As per record, the invoices Ex. PW-1/5 to Ex. PW-1/15 raised by the plaintiff between 02.04.2017 and 30.06.2017 Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 12 of 34 CS Comm No. 18/2022 incorporated clause no. 2 to this effect. However, in the invoices Ex. PW-1/16 to Ex. PW-1/23-A raised by the plaintiff between 29.08.2017 and 06.09.2017, it was mentioned that the disputes shall be subject to Haryana jurisdiction. The defendants themselves have relied upon those invoices as Ex. DW-1/5 (colly).
24. In view of the foregoing discussions, it can be held that initially, in the invoices Ex. PW-1/5 to Ex. PW-1/15, it was mentioned that the disputes shall be subject to Gurgaon jurisdiction only but subsequently, vide invoices Ex. PW- 1/16 to Ex. PW-1/23-A, the said condition was diluted by mentioning that it shall be subject to Haryana jurisdiction. It is nowhere the case of the defendants that they have ever objected to the change of the condition related to the jurisdiction to entertain the disputes between the parties. Not the least, in the invoices Ex. PW-1/16 to Ex. PW-1/23A, the plaintiff also provided the detail of her bank account with Indian bank, SFS Branch, Janakpuri, which falls within the territorial jurisdiction of this court. According to the plaintiff, the defendants made the payment in that account. As discussed above, in cross examination of PW- 1, no suggestion to the contrary was given by counsel for the defendant.
25. Therefore, it can be held that the negotiations related to the subject transaction took place at the office of the plaintiff situated and the defendants made the payments to the plaintiff within the territorial jurisdiction of this court. Further, the exclusivity clause relating to the territorial jurisdiction mentioned in the invoice Ex. PW-1/5 to Ex. Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 13 of 34 CS Comm No. 18/2022 PW-1/15 was subsequently diluted to non exclusive clause vide the invoices Ex. PW-1/16 to Ex. PW-1/23. Therefore, the exclusivity clause relating to the territorial jurisdiction mentioned in the invoice Ex. PW-1/5 to Ex. PW-1/15 becomes redundant. Therefore, it can be held that this court has territorial jurisdiction to entertain the present suit. Accordingly, the issue no. 1 is decided in favour of the plaintiff and against the defendants.
ISSUES NO. 2 TO 326. The onus to prove the issues no. 2 to 3 was on the plaintiff. The issues no. 2 to 3 are taken up together as they involve common discussions.
27. Admittedly, the plaintiff carried out the printing work on the fabric pieces provided by the defendants and raised the invoices Ex. PW-1/5 to Ex. PW-1/23A for total amount of Rs. 21,76,764/- between 02.04.2017 and 06.09.2017. The defendants have also relied upon the same invoices Ex. DW-1/5 (colly). The plaintiff maintained a regular and running account in the name of the defendant no.1 Ex. PW- 1/24 according to which, the defendants paid Rs. 17,50,000/- on different occasions and Rs. 4,26,764/- is outstanding against the defendants. The defendants also relied upon the statement of account Ex. DW-1/4 which corroborates the statement of account Ex. PW-1/24 filed by the plaintiff though they denied their liability to pay the suit amount to the plaintiff.
28. During course of the arguments, counsel for the Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 14 of 34 CS Comm No. 18/2022 defendants raised an objection that the suit of the plaintiff is barred by the period of limitation because according to the plaintiff she raised the last invoice on 06.09.2017 and the defendants were to make the payment within 30 days from that day. As such, the outstanding amount become due on 06.10.2017. Therefore, if the period of limitation of 03 years is computed from 06.10.2017, the suit is barred by the period of limitation as it was actually filed on 24.12.2020.
29. On the other hand, counsel for the plaintiff pleaded that the present suit was filed when the covid-19 pandemic was in existence. Therefore, in view of the various orders specifically the order dated 10.01.2022 passed by the Hon'ble Supreme Court of India in the Suo Moto Writ Petition(Civil) no. 03/2020, the suit is within the period of limitation.
30. It is nowhere the case of the defendants that the plaintiff is not entitled to benefit of the various orders specifically the order dated 10.01.2022 passed by the Hon'ble Supreme Court of India in the Suo Moto Writ Petition(Civil) no. 03/2020 which was ultimately disposed of on 10.01.2022. Given the benefit of the same, it can be held that the suit is within the period of limitation.
31. Counsel for the defendants also pleaded that while filing the present suit, the plaintiff has neither signed each page of the plaint nor has filed the statement of truth along with it. As such, the plaintiff has not complied the mandatory provisions of CCA. Hence, the present suit is not maintainable in law.
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 15 of 34 CS Comm No. 18/2022
32. On the other hand, counsel for the plaintiff pleaded that initially, the plaintiff instituted the present suit by filing a plaint before the non commercial court which was assigned to ordinary civil court. Subsequently, the defendants filed the WS and raised the objection that the subject dispute was the commercial dispute, hence, the said court was not competent to entertain the same. The plaintiff admitted the same. Consequently, the suit was transferred to the designated commercial court. Subsequently, the plaintiff moved the application under order 6 Rule 17 of CPC to comply the provision of CCA by filing the amended plaint. Vide order 13.10.2022, the said application was allowed and amended plaint was taken on record. As such, the plaintiff filed the amended plaint containing signature of the plaintiff on each page along with the statement of truth. On the contrary, that day, the defendants adopted the WS already filed on record which is without signature of the defendants on each page and is also not supported with the statement of truth. Hence, it is not the plaint but the WS of the defendants which should be taken off the record. In support thereof, counsel for the plaintiff has relied upon the judgment passed by the Hon'ble High Court of Delhi in RFA(Comm) No. 02/2021 in case titled as "M/s. A.V Industries Vs. Neo Neon Electrical Pvt. Ltd." on 01.09.2023.
33. It is evident from the record that vide the amended plaint, the plaintiff has complied with the mandatory provisions of CCA. As such, there is no substance in the plea raised by counsel for the defendants.
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34. Now the question arises as to whether after filing of the amended plaint, the defendant has complied the mandatory provisions of CCA relating to the WS and if not, what is its effect.
35. It is evident from the record that the defendants themselves raised the objection that the subject dispute was the commercial dispute and was governed by the provisions of CCA. It is admitted fact that the defendant has neither signed each page of the WS nor has filed the statement of truth along with it as it was filed at the stage when the matter was pending before the non commercial court i.e. ordinary civil court. Once, the matter was transferred to the designed commercial court, the plaintiff took the steps for amendment of the plaint to comply the provisions of CCA and filed the amended plaint. At that stage, the defendants had the opportunity to file the amended WS complying with the provisions of CCA. However, the defendants opted not to take steps to that effect. The fact remains that the WS filed by the defendant does not have the signature of the defendants on each page and is also not supported with their statement of truth.
36. In the judgment M/s. A.V Industries (supra), it was held:
15. Learned counsel further submitted that the respondent/plaintiff filed the suit for recovery of money and the same was filed in the Court of competent ordinary civil jurisdiction, due to non establishment of the Commercial Courts as per CC Act, in the Saket Court Complex and it was Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 17 of 34 CS Comm No. 18/2022 only later in the time, that the Commercial Courts were established and the matter was transferred to the concerned District Judge (Commercial Courts) vide order/notification No. 316 dated 07.12.2019 and by that point of time the appellant/defendant was already proceeded ex-parte on 09.10.2019.
20. The learned counsel for the appellant/defendant argues precisely the following issues:
a. That the learned Trial Court had no territorial jurisdiction to try and adjudicate the suit and therefore the judgement and decree are a nullity in law and not enforceable.
b. That no Statement of Truth, as envisaged under Order VI Rule 15 (4) & (5) of CPC as amended by the CC Act, was filed with the suit plaint, thus the said plaint was no plaint in the eyes of law and consequently, the impugned ex- parte judgement and decree could not have been validly passed.
26. That so far as the second issue regarding the non filing of the Statement of Truth alongwith the suit plaint is concerned, the learned counsel for the respondent/plaintiff unequivocally admitted that no Statement of Truth was at all filed along with the plaint. Having regard to this admission, this Court needs to examine whether the judgement and decree could at all have been Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 18 of 34 CS Comm No. 18/2022 passed, and if so, whether the judgement and decree is at all valid and not a nullity.
28. A perusal of the aforesaid provisions, particularly Order VI Rule 15A of CPC as amended by CC Act, would bring to fore that the Legislature had, in its wisdom, intentionally laid great stress on the filing of the Statement of Truth along with the plaint, in support thereof, to reduce the time spent in the litigation by parties. The delay in filing of the same may be considered as a procedural irregularity, however, the filing of the same, in our view, would be mandatory. Moreover, the filing of the Statement of Truth and the limitation thereafter provided for filing of the same, in our view is restrictive in nature and cannot be extended endlessly nor can the plaint and the documents annexed thereto be read in evidence. This has great significance since sub rule (4) and (5) of Rule 15A of Order VI of CPC as amended by CC Act mandate the filing of the Statement of Truth and also prescribe the effect of such non filing. It is clear that the parties are not permitted to rely upon the said pleadings by virtue of sub rule (4) and simultaneously the Court is empowered to strike out a pleading which is not supported by the statement of truth, prescribed by sub rule (5) of Rule 15A of Order VI of CPC as amended by CC Act. Our endeavour in the present case is only to consider Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 19 of 34 CS Comm No. 18/2022 the effect of non filing of the Statement of Truth, since the facts obtaining in the present case do not give rise to any other question and thus, our views are restricted only to the said issue.
29. In the present case, it is admitted by the learned counsel for the respondent/plaintiff that the Statement of Truth indeed, was never filed either with the plaint or any time later at all.
Keeping this fact in view, we are of the opinion that the same would fall within the purview of issue of law and hold that the plaint itself is non est and could not have been read in evidence either.
30. The arguments of the learned counsel for the respondent/plaintiff based on the Non Starter Report, issued by the DLSA South East, in respect of the suit in question, is concerned, the same does not discharge the respondent/plaintiff of the legal obligation to file the Statement of Truth. Moreover, the respondent/plaintiff cannot feign ignorance of the fact that the suit, even though originally proceeded with by the learned ADJ dealing with ordinary suits, was subsequently registered under the CC Act and numbered as such. Thus, the respondent/plaintiff was under a legal obligation to file the Statement of Truth in accordance with Order VI sub-rule (4) and (5) Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 20 of 34 CS Comm No. 18/2022 of Rule 15 A CPC as amended by the CC Act while conforming to the mandatory procedural formalities contained therein. Therefore, the respondent/plaintiff now cannot be permitted to contend that no such directions were issued for filing the Statement of truth after the transfer of suit from ordinary court to designated commercial court. Thus even this argument of the respondent/plaintiff fails.
31. Resultantly, we allow the appeal and set aside the judgement and decree dated 21.09.2020 passed by the District Judge (Commercial Court) - 01, South-East, Saket Courts, Delhi in CS (Comm.) No. 253/2019, however, with no orders as to costs."
37. In view of the above cited judgment, it can be held that the WS filed by the defendants is not in compliance with the provisions of CCA. Hence, the WS filed by the defendants is struck out in terms of Order VI Rule 15A (4) of Code of Civil Procedure, 1908 (CPC) as amended by CCA.
38. However, I propose to decide the suit on merits also. Accordingly, now, presume for the sake of the arguments only that the WS filed by the defendants is in compliance of provisions of CCA. Now, I proceed to ascertain as to whether the defendants have succeeded in demolishing the claim of the plaintiff.
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 21 of 34 CS Comm No. 18/2022
39. Counsel for the plaintiff pleaded that the plaintiff carried out the printing work on 61,864 fabric pieces provided by the defendants and raised the invoices Ex. PW- 1/5 to Ex. PW-1/23A for total amount of Rs. 21,76,764/- upon the defendants from time to time. The defendants paid total amount of Rs. 17,50,000/- to the plaintiff from time to time but those payments were not on bill to bill basis. The plaintiff maintained a regular and running ledger account Ex. PW-1/24 in the name of the defendant, according to which, Rs. 4,26,764/- is outstanding against the defendant which they have not paid despite receipt of legal notice dated 29.12.2019 Ex. PW-1/26.
40. On the other hand, counsel for the defendants pleaded that the defendant no. 1 placed the orders upon the plaintiff for printing work on 59,441 fabric pieces from time to time. The said printing work to be carried out was of multiple styles. The plaintiff assured that he would charge the lowest rate for the said printing work. On negotiation, it was agreed that the plaintiff would carry out the said work @ Rs. 25/- per piece for all style. However, the plaintiff charged the rates on the higher side. Accordingly, vide e-mails Ex. DW- 1/1(colly) and Ex. DW-1/2(colly), the defendants requested the plaintiff to revise the rates and revert back to them. The plaintiff telephonically assured the defendants that he would charge @ Rs. 25/- per piece. Despite that, the plaintiff kept on raising the invoices quoting rates on higher side and also demanded the payments from the defendants against those invoices. To keep good relationship with the plaintiff, the defendants made the ad-hoc payments to the defendants from time to time. Later, the plaintiff assured that once the Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 22 of 34 CS Comm No. 18/2022 printing work of 59,441 pieces would be completed, she would raise all the invoices and provide the same to the defendants. On 30.06.2017, the plaintiff, for the first time, provided 15 invoices and that time, the defendants came to know that the plaintiff had charged the rate higher than Rs. 25/- per piece. Hence, the defendants called upon the plaintiff to rectify the rates. Simultaneously, the defendants drew a debit note of Rs. 4,09,264/- on 30.06.2017. The plaintiff assured that she would refund the excess amount after completion of the printing work but of no use. As such, the plaintiff charged the rates on the higher side. Not only that, the plaintiff had charged the different rates for same style of the printing work. Not the least, the plaintiff supplied 59,076 pieces only out of total 59,441/- pieces. As such, there was shortage of 365 pieces. Cost of printing work of 59,076 pieces @ Rs. 25/- per piece was Rs. 14,76,900/- against which the plaintiff received Rs. 17,50,000/-. As such, the plaintiff received Rs. 2,73,100/- in excess. Vide e-mail dated 19.09.2017 Ex. DW-1/7, the defendants requested the plaintiff to refund the said amount but of no use. Hence, it is prayed that the suit may be dismissed.
41. Admittedly, the defendants placed the orders for printing work on the fabric pieces. The plaintiff raised the invoices Ex. PW-1/5 to Ex. PW-1/23(A) for total amount of Rs. 21,76,764/- and the defendant paid total amount of Rs. 17,50,000/- to the plaintiff from time to time as reflected in the ledger account Ex. PW-1/24. The defendants also relied upon the same invoices DW-1/5(colly) and their ledger account Ex. DW-1/4 which also substantiate the said facts. Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 23 of 34 CS Comm No. 18/2022
42. In the present suit, the plaintiff has claimed the outstanding amount Rs. 4,26,764/- along with interest. Now the question arises as to whether the plaintiff is entitled to the suit amount as prayed.
43. In the present case, the defendants have opposed the claim of the plaintiff on following grounds:
(i) the plaintiff agreed that she would charge the rates of the printing work of 59,441 fabric pieces @ Rs. 25/-
per piece for all styles. However, in contravention of the same, the plaintiff charged the rates on the higher side. Not only that, the plaintiff charged the different rates for same style of the printing work. As such, the plaintiff has received Rs. 2,73,100/- in excess which she is liable to refund to the defendants.
(ii) the plaintiff had to carry out the printing work on 59,441 pieces. However, the plaintiff carried out the printing work on 59,076 pieces only and supplied to the defendants. As such, the plaintiff has not returned 365 pieces to the defendants.
44. Now the first question arises as to what was the number of fabric pieces on which the plaintiff had carried out the printing work.
45. Admittedly, the plaintiff raised the invoices Ex. PW- 1/5 to Ex. PW-1/23A upon the defendants. According to those invoices, the plaintiff carried out the printing work on 61,864 pieces. In cross examination of PW-1, counsel for the defendants has not disputed the said invoices and the quantity of the material mentioned therein. In view of the Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 24 of 34 CS Comm No. 18/2022 foregoing discussions, it can be held that the plaintiff had carried out the printing work on 61,864 fabric pieces and returned the same to the defendants against the invoices Ex. PW-1/5 to Ex. PW-1/23A.
46. Now the question arises as to whether the plaintiff agreed that she would carry out the printing work on the fabric pieces @ Rs. 25/- per piece for all styles.
47. The defendants in the WS have mentioned that along with the e-mails, the plaintiff sent the excel sheet mentioning the rates per piece of the printing work. However, the defendants at their end have not filed any such excel sheet on the court record. On the other hand, the plaintiff has filed excel sheets along with the certain invoices. However, counsel for the defendants raised the objection relating to tendering of those excel sheets/ supporting documents filed by the plaintiff along with the invoices Ex. PW-1/5 to Ex. PW-1/23A on the ground that the same were not supplied to the defendants. Therefore, vide order dated 11.10.2023, it was held that those excel sheets/ supporting documents filed along with that invoices be taken off record. As such, the excel sheets/ supporting documents filed by the plaintiff along with those invoices shall not be read in the evidence. Therefore, the defendants cannot rely upon those excel sheets/ supporting documents.
48. It is the case of the defendants that the plaintiff had not supplied certain invoices to them and therefore, they could not raise the objections regarding the rates mentioned therein within time. It is also the case of the defendants that Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 25 of 34 CS Comm No. 18/2022 on 30.06.2017, the plaintiff, for the first time, supplied 15 invoices to them.
49. As discussed above, the defendants themselves have filed and relied upon the invoices Ex. DW-1/5 (colly) which are tendered by the plaintiff also as PW-1/5 to Ex. PW- 1/23A. Further, the defendants have failed to produce any document on record to show that they ever complained to the plaintiff that she had not supplied the invoices to them in time. The defendants have also failed to lead any evidence that they had received 15 invoices for the first time on 30.06.2017. Not the least, as discussed in later part of the judgment, before 30.06.2017, the defendant had paid Rs. 8,50,000/- to the plaintiff on adhoc basis. It is nowhere the case of the defendants that they paid Rs. 8,50,000/- without even knowing the basis on which the plaintiff had claimed that amount. Hence, it can be held that the defendants received the invoices as and when the same were raised by the plaintiff.
50. As held above, admittedly, between 02.04.2017 and 06.09.2017, the plaintiff raised the invoices Ex. PW-1/5 to Ex.PW-1/23A for total amount of Rs. 21,76,664/- and the defendants paid Rs. 17,50,000/- against those invoices between 08.05.2017 and 31.08.2017, as mentioned below.
S. No. Date of payment Amount in Rupees
1. 08.05.2017 4,00,000/-
2. 03.06.2017 3,00,000/-
3. 07.06.2017 1,50,000/-
4. 13.07.2017 4,00,000/-
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 26 of 34 CS Comm No. 18/2022
5. 24.07.2017 1,00,000/-
6. 26.07.2017 1,00,000/-
7. 31.08.2017 3,00,000/-
17,50,000/-
51. Case of the plaintiff is that the printing work to be carried out on the fabric included various factors like fabric quality, printing technique and number of colours, composition of design/ printing, manpower/ machine hours consumed and quantity per style. Accordingly, the price of printing work on a particular fabric was mutually agreed and the plaintiff raised the invoices on that basis only.
52. On the other hand, case of the defendant is that the plaintiff agreed that she would charge Rs. 25/- per piece for printing work of all style. However, the plaintiff charged the rates for printing work on the higher side. Not only that, the plaintiff charged different rates for same type of printing work.
53. In WS, the defendants admitted that the printing work to be carried on the fabric was of multiple style. It is evident from the record that the plaintiff has actually done the said work for the defendants.
54. Counsel for the plaintiff relied upon the invoices Ex. PW-1/5 to Ex. PW-1/23A and pleaded that the plaintiff charged the rates mentioned therein as per agreement between the parties. However, in the plaint, the plaintiff has not mentioned as to when the rates for printing work were mutually agreed between the parties.
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 27 of 34 CS Comm No. 18/2022
55. On the other hand, in WS, the defendants pleaded that in the year 2017, the plaintiff assured that she would charge lowest rate for the printing work. Again stated, on negotiation, the plaintiff and the defendants agreed that the plaintiff would carry out the printing work @ Rs. 25/- per piece for all style. However, the defendants have not disclosed the date and month when the plaintiff assured so or agreed to the rates @ Rs. 25/- per piece for all style.
56. Counsel for the defendants has relied upon the e- mails dated 16.03.2017, 17.03.2017 and 18.03.2017 Ex. DW-1/1(colly) and e-mails dated 13.04.2017 and 15.04.2017 Ex. DW-1/2 (colly) and pleaded that vide the said e-mails, the defendants informed the plaintiff that she quoted the rates on higher side and requested her to revise /review the said rates as those rates were not as per their costing. In turn, the plaintiff telephonically informed the defendants that she would charge the rate @ 25/- per piece for all style.
57. PW-1 in his cross examination admitted one suggestion that the price negotiation was conducted between him and Ritesh Rathi, official of the defendants. However, he denied the suggestion that on the basis of the said negotiation, it was decided that the plaintiff would charge the rate @ Rs. 25/- per piece or that the plaintiff had charged the rates in arbitrary manner. PW-1 specifically deposed that the plaintiff raised the invoices on the basis of the price agreed between him and Ritesh Rathi at his office. In his cross examination, no suggestion to the contrary was given by counsel for the defendants. In cross examination of Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 28 of 34 CS Comm No. 18/2022 PW-1, no suggestion was given by counsel for the defendants that the plaintiff assured that she would charge the rate @ Rs. 25/- per piece for all styles or that she would review/ revise the rates and would charge @ Rs. 25/- per piece for all styles. On the other hand, PW-1 in his cross examination specifically deposed that there was no need of revising the bills. No suggestion to the contrary was given by counsel for the defendants.
58. To this effect, DW-1 in his cross examination admitted that the defendants have not filed any document on record to prove that before delivery of the fabric, it was agreed that average rate of fabric per piece would be Rs. 25/- per piece. DW-1 though deposed that it was orally agreed so between the parties and has denied the suggestion to the contrary given by counsel for the plaintiff. However, the defendants have failed to disclose the date, month and year of the alleged oral agreement between the parties.
59. Perusal of record reveals that on 02.04.2017, the plaintiff raised the first invoice Ex. PW-1/5 upon the defendant and thereafter, till 13.04.2017, the plaintiff raised 04 more invoices Ex. PW-1/6 to Ex. PW-1/9. Vide e-mail dated 13.04.2017 Ex. DW-1/2 (colly), the plaintiff informed the defendants about the said invoices and requested them to transfer Rs. 4,00,000/- as she was in urgent need of money. In response thereto, vide e-mail dated 15.04.2017 Ex. DW- 1/2 (colly), the defendants requested the plaintiff to review the rates and revert back as they had taken average cost @ Rs. 25/- to Rs. 30/-. As revealed from the ledger account Ex. PW1/24, the defendants paid Rs. 4,00,000/- to the plaintiff Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 29 of 34 CS Comm No. 18/2022 on 08.05.2017. There is nothing on record to suggest that the defendants made the said payment under protest or that they had reserved their right to adjust any particular amount in future.
60. Again, vide e-mail dated 08.05.2017 Ex. DW1/3 (colly), the defendants informed the plaintiff that they were not able to deliver that such rates because the average cost of printing was Rs. 25/- to Rs. 30/- which they were getting from their buyer. It is nowhere the case of the defendants that after e-mail dated 15.04.2017, the plaintiff had reviewed the rates or had assured the defendants to review the same in future. On the contrary, it is revealed that the plaintiff raised the invoices not as desired by the defendants in their e-mail dated 15.04.2017. On the contrary, before that, the defendants transferred Rs. 4,00,000/- in the account of the plaintiff as revealed from the e-mail dated 06.05.2017 and also assured the plaintiff that they would further transfer Rs. 3,00,000/- on adhoc basis which they actually transferred on 03.06.2017.
61. It is also evident from the record that the plaintiff raised the last invoice Ex. PW-1/23A on 06.09.2017 and till then, the defendants had already paid Rs. 17,50,000/- on account to the plaintiff without any protest.
62. Vide e-mail dated 19.09.2017 Ex. DW1/6, the defendants, for the first time, called upon the plaintiff to refund Rs. 2,73,100/- on the ground that the plaintiff had charged on higher side and also supplied 365 pieces less. In response thereto, vide e-mail dated 30.09.2017 Ex. DW-1/7, Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 30 of 34 CS Comm No. 18/2022 the plaintiff brought to the notice of the defendants that she informed the rates before carrying out the printing work and thereafter, prepared the invoices and delivered the same to the defendants for payment. The plaintiff also informed the defendants that at no point of time, the defendants called upon the plaintiff to discontinue the printing work nor raised any objection even at subsequent stage.
63. In view of the foregoing discussions, it can be held that the defendants paid Rs. 17,50,000/- to the plaintiff against the invoices for total amount of Rs. 21,76,764/- without protest and even without reserving their right to adjust any amount in future. Hence, it can be held that at no point of time, the plaintiff agreed that she would charge for printing work @ Rs. 25/- per pieces for all styles which was otherwise not possible because printing work to be carried out was of multiple styles. Accordingly, the plaintiff raised the invoices and specifically mentioned the rates charged for particular style of printing work. The defendants received those invoices and made the part payments, not on bill to bill basis, from time to time that too without any protest. Hence, it implies that the defendants agreed to the rates of the printing work mentioned in those invoices. Not the least, the defendants have not examined any witness involved in the same business to prove that the rates charged by the plaintiff for particular printing work was on the higher side.
64. Counsel for the defendants pleaded that in the invoices, the goods were described as "GOT-MEN'S" and "GOT-WOMEN'S". However, the plaintiff has charged Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 31 of 34 CS Comm No. 18/2022 different rates for the same description of goods.
65. Perusal of the invoices Ex.PW1/5 to Ex.PW1/23A reveals that the different nature of printing work was to be carried out on the same description of the goods as mentioned in the invoices and the plaintiff charged the rates accordingly. Therefore, there is no substance in the plea raised by counsel for the defendants.
66. Counsel for the defendants pleaded that the defendants placed the orders for printing work of 59,441 pieces but the plaintiff carried work the printing work of 59,076/- pieces only i.e. there were shortage of 365 pieces. As such, on the one hand, the plaintiff has not delivered 365 pieces to the defendants and on the other hand, she has charged the defendants for those pieces.
67. As discussed above, as revealed from the invoices Ex. PW-1/5 to Ex. PW-1/23A, the plaintiff carried out the printing work on total 61,864 pieces and not on 59,441 pieces as alleged by the defendants because the defendants have also relied upon the same invoices and have not disputed the quantity of the pieces mentioned therein. It is also evident from the record that before sending the e-mail dated 19.09.2017 Ex.DW1/6, the defendants did not complain to the plaintiff that she had supplied the short material. This fact is relevant because before 19.09.2017, on the one hand, the plaintiff had raised all the invoices and supplied the material mentioned therein and on the other hand, the defendants had also made the payment of Rs. 17,50,000/-.
Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 32 of 34 CS Comm No. 18/2022
68. Counsel for the defendants pleaded that the defendants raised the debit note dated 30.06.2017 for Rs. 4,09,264/- Ex. DW1/4 upon the plaintiff. However, the plaintiff has not honoured the said debit note.
69. It is nowhere the case of the defendants that before raising the debit note Ex. DW1/4, they ever informed the plaintiff or had taken her consent for the same. Further, DW- 1 in his cross examination admitted that they have not filed any document to show that the said debit note was handed over to the plaintiff. The defendant's e-mail dated 19.09.2017 Ex. DW1/6 is also silent to this effect. The defendants have also failed to explain if they were entitled to recover of Rs. 4,09,264/- as per the debit note dated 30.06.2017 then as to why they further paid Rs. 7,00,000/- to the plaintiff thereafter that too without any protest or objection.
70. Further, the defendants have failed to explain as to why they have not filed any counter claim or a separate suit against the plaintiff to recover Rs. 2,73,100/- or Rs. 4,09,264/- as alleged. The defendants have also not initiated any legal action for redressal of their grievance regarding the short supply of 365 fabric pieces as alleged. As such, an adverse inference can be drawn against the defendants.
71. In view of the foregoing discussions, the plaintiff is held entitled to decree of Rs. 4,26,764/.
72. In the present case, the plaintiff has claimed the pendent elite and future interest @ 18% per annum which is Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 33 of 34 CS Comm No. 18/2022 on higher side. In the circumstances of the case, a justifiable rate of interest is awarded to the plaintiff @ 9% per annum on Rs. 4,26,764/- for pendent elite and future period till realization. Accordingly, issues no. 2 and 3 are decided in favour of the plaintiff and against the defendants.
ISSUE NO 4 (RELIEF)
73. In view of the foregoing discussions, the suit of the plaintiff is allowed. The plaintiff is held entitled to decree of Rs. 4,26,764/-along with interest @ 9% per annum from the date of institution of the suit till the realization of the amount against the defendants jointly and severally. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
74. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT, Digitally signed Pankaj by Pankaj Gupta On this 20th day of July, 2024. Gupta Date:
2024.07.20 03:58:49 +0530 (PANKAJ GUPTA) District Judge, S/W (Commercial Court):01 DELHI Kamlesh Dhall Vs. Inzez Global LLP & Ors. Page No. 34 of 34 CS Comm No. 18/2022