Delhi District Court
Sunil Kumar vs Ms Knit Craft Apparels International ... on 24 July, 2024
IN THE COURT OF SH. AMIT BANSAL,
DISTRICT JUDGE (COMMERCIAL COURT)-03,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI.
CS (COMM) 446/2023
CNR No. DLSW01-008857-2023
Shri Sunil Kumar
Proprietor M/s Anmol Sales
Having office at- RZ-A-40, Second Floor,
Gali No. 14, Sita Puri, Part - I,
Palam, Delhi - 110045
Mob: 9818387656
.....Plaintiff
VS
M/s Knit Craft Apparels International Pvt. Ltd.
Through its MD/Directors
N-49, Kirti Nagar, New Delhi - 110015.
Also at-
Behram Road, Village Khandsa,
Gurgaon - 122001, Haryana.
.....Defendant
Date of institution : 26.09.2023
Date of final arguments : 23.07.2024
Date of decision : 24.07.2024
JUDGMENT
CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 1 of 16
1. The plaintiff has filed the present suit against the defendant with a prayer for a decree for sum of Rs. 6,25,272/- (Rupees six lakh twenty five thousand two hundred and seventy two only) alongwith pendente lite and future interest @ 18.00% per annum from the date of institution of the suit till realization and costs of the suit in favour of the plaintiff and against the defendant.
2. The plaintiff's case in nutshell as mentioned in the plaint is to the effect that he is the sole proprietor of M/s Anmol Sales and is carrying on his business of trading of various parts of machines and allied products. The defendant had been a customer of the plaintiff and placed orders for the purchase of said materials i.e. Rubber belt, Grease Robin Gasket seals etc. from the plaintiff. The orders were placed by the defendant at plaintiff's office at Delhi and the defendant had been making part payments to the said defendant. The plaintiff used to maintain an open, mutual and current account in the name of the defendant in the due course of his business transaction between them which would show an outstanding amount of Rs. 6,25,272/- which had not been cleared / paid by the defendant. The said amount was not paid by the defendant despite several reminders and therefore the defendant is liable to pay the interest @ 18% per annum on the said outstanding amount as prevalent in the market. The plaintiff issued a legal notice dated 17.12.2022, which was duly served upon the defendant however, the defendant neither complied with the same nor replied the same. The plaintiff further averred to the effect that the pre mediation application was also filed on 02.02.2023, however, it was a Non - Starter.
CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 2 of 16 The plaintiff has thus prayed for a decree for a sum of Rs. 6,25,272/- in favour of the plaintiff and against the defendant along with pendente lite and future interest @ 18% p.a. from the date of institution of suit till realization and costs of the suit.
3. The defendant filed the written statement and inter- alia submitted that the court is not having the territorial jurisdiction as the defendant is having office cum factory in Gurugram from where it was handling the transaction with the plaintiff and all the relevant events as discussed in the plaint occurred in Gurugram. It was stated that the defendant is a company engaged in the business of manufacturing of hosiery cloth garments for export and also manufacturing and exports of ready made garments having its principal place of business at Gurugram. The plaintiff claimed to be into the business of trading of various parts of machines and allied products and approached the defendant through its agents / representatives soliciting the work of supply of the same. The defendant being in need of services believed the representations of the plaintiff and agreed to avail the services from the plaintiff, however, it was made clear that quality of the services should be free from any defect and the charges should be competitive. The defendant however in short span of time realized that the assurances given by the plaintiff were just a spoof to sell the poor goods and that the plaintiff was not having proper infrastructure to provide the said services, which resulted in very poor and defective goods. There were repeated delays in supply by plaintiff, which delayed the shipments of the defendant due to which defendant suffered losses as it had to make alternate arrangements at a much higher CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 3 of 16 price. The plaintiff was also in the habit of raising inflated and exaggerated bills having no basis. The defendant suffered loss of reputation as well as huge loss due to cancellation of various orders due to acts of omissions and commissions of the plaintiff. The defendant denied that it had business dealings with the plaintiff at the relevant time and it was also denied that the plaintiff had supplied the alleged goods to the defendant on the basis of the orders placed to the plaintiff for the supply of Rubber Belt, Grease Robin Gasket Seals etc. The defendant denied that any mutual and current account was opened by the plaintiff in the name of the defendant in the due course of his business transactions in its account books. It was further denied that the defendant is liable to pay to the plaintiff an outstanding amount of Rs. 6,25,272/- along with interest @ 18% p.a. The defendant denied that the plaintiff had sent legal notice to it for making the payment of the said outstanding amount. The defendant thus prayed that the suit of the plaintiff be dismissed.
4. The plaintiff filed replication to the written statement of the defendant, wherein he has generally denied the contentious averments made in the written statement and reiterated those made in the plaint. He further denied that the entire handling of transaction and meeting for the purchase of the goods were held at Gurugram. It was submitted that business transactions related to the suit took place at Delhi where plaintiff is carrying on the business and otherwise too the defendant is having its office at N-49, Kirti Nagar, New Delhi after winding up his office from Gurugram and hence this court has jurisdiction. The plaintiff submitted that he had been supplying CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 4 of 16 the services and the goods from time to time without any defect or delay to the defendant. It was submitted that the defendant who after availing the services of supply and shipments timely to him has become dishonest to make the payments against bills raised by the plaintiff.
5. From the pleadings, the following issues were framed on 14.12.2023:-
"1. Whether the plaintiff is entitled to recover from the defendant a sum of Rs.6,25,272/- (Rupees six lakh twenty five thousand two hundred seventy two only), as prayed in the plaint? OPP
2. If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP
3. Relief."
No other issue arose or was pressed by the parties.
In order to prove its case, the plaintiff has examined himself as PW1. No other witness has been examined by the plaintiff.
6. The record would show that the defendant has not lead any evidence in support his defence and the defendant's evidence was closed on 12.03.2024 after recording the statement of the Ld. counsel for the defendant that defendant does not want to lead any defendant evidence (DE) and the same be closed.
7. Sh. O. P. Chanderwal, Ld. Counsel for the plaintiff has argued that the defendant had placed orders with the plaintiff CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 5 of 16 for the purchase of material like rubber belt, grease robin gasket seals etc and the plaintiff supplied the said goods to the defendant. He argued there were continuous transactions between the parties. He submitted that the defendant has contended that the material supplied was not up to standard, however, the defendant neither returned any alleged defective goods to the plaintiff nor issued any notice to the plaintiff that the goods were defective or that the defendant had suffered losses. He argued that the defendant has not led any evidence in this case and the plaintiff has been able to prove its case against the defendant for recovery of Rs. 6,25,272/- along with interest. He argued that there cannot be any doubt on the ledger account Ex. PW1/3 which was maintained by the plaintiff with respect to the defendant. He thus prayed that the suit of the plaintiff be decreed.
8. Sh. Keshri Kumar, Ld. Counsel for the defendant has argued that there was no outstanding amount to be paid by the defendant to the plaintiff and that the defendant has already paid all the amount to the plaintiff. He submitted that the plaintiff had also supplied the defective goods to the defendant. He argued that the plaintiff has not placed anything on record to show that the defendant had placed any order with the plaintiff. He submitted that the plaintiff has not placed any purchase order on record. He submitted that the plaintiff has not proved any document that the goods were actually delivered by the plaintiff to the defendant. He submitted that no tax invoice as filed by the plaintiff on record has been signed or endorsed by the defendant and there is nothing on record to show that any invoice was acknowledged by the defendant. He further argued that the case CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 6 of 16 of the plaintiff is based on the ledger account Ex. PW1/3, however, the plaintiff has not filed the entire ledger account and there is no entry prior to 01.04.2018 in it. He submitted that in the ledger account Ex. PW1/3, the plaintiff has shown the opening balance of Rs. 3,26,288/-, however, the plaintiff has failed to explain the basis of said opening balance. He argued that another opening balance of Rs. 2,39,753.87/- has been shown as on 01.04.2018 in the said ledger account, however, its basis has not been mentioned or explained in it. He also submitted that one part of the ledger is typed and another part is hand written. He argued that the entire case of the plaintiff depends upon the said ledger account Ex. PW1/3, however, in view of the above mentioned submissions, the said ledger account is totally unreliable. He submitted that the plaintiff has even otherwise not filed a proper certificate in terms of language of Section 65B of the Indian Evidence Act, 1872 and hence the computer print out of tax invoices and one part of ledger account cannot be read in this case. He argued that the plaintiff has failed to prove its case beyond preponderance of probabilities against the defendant and hence the suit of the plaintiff is liable to be dismissed.
9. The issue wise findings are as under:-
ISSUE No.1 "Whether the plaintiff is entitled to recover from the defendant a sum of Rs.6,25,272/- (Rupees six lakh twenty five thousand two hundred seventy two only), as prayed in the plaint? OPP PW-1 Sh. Sunil Kumar (plaintiff) has tendered his evidence by way of affidavit as Ex. PW1/A, wherein he has CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 7 of 16 generally reiterated the facts as stated in the plaint. Copy of tracking report has been proved as Ex. PW1/1, Tax Invoices are Ex. PW1/2 (colly)(from page no. 41 to page no. 74 of the documents of the plaintiff), Ledger account of the defendant as maintained by the plaintiff as Ex. PW1/3, Application for request of initiation of pre-institution mediation and settlement proceedings before DLSA as Ex. PW1/4, Report of DLSA regarding the non-appearance of the respondent before DLSA as Ex. PW1/5 and the legal notice dated 17.12.2022 for payment to M/s Anmol Sales served upon the defendant and the postal receipts are Ex. PW1/6 (colly).
10. During his cross-examination, PW1 inter-alia, deposed that he was working as proprietor of the plaintiff M/s Anmol Sales since June, 2007 and that he used to supply spare parts of dyeing machine like mechanical seals, rubbers, lubricants, emery rubbers, silicon rubbers etc to the defendant. He deposed that he had been supplying the said material to the defendant since about 12-14 years, he is only a trader and does not manufacture the said goods. He deposed that he procured the said goods from the market and then supplied it to the defendant. He deposed that the vendor from which he purchased the goods firstly supplied the goods to him, he maintained the stock and thereafter upon receiving the order form the defendant, he supplied the goods to the defendant. He deposed that the he maintains the stock in his office. He further deposed that some of the purchase orders for goods were given by the defendant through e-mail, however, some of the order were given by the defendant verbally i.e. telephonically and that he had not placed CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 8 of 16 any purchase order on record. He deposed that mostly the goods were sent to the defendant through courier, some times it was sent through transport and on very few occasions it was also delivered by hand and that he had not placed on record any delivery reports of transport or courier. He deposed that the invoices were sent to the defendant along with supplied material. He deposed that he had not placed on record any proof to show that the goods / material or invoices were actually received by the defendant. He denied the suggestion that neither the goods were sent nor any invoices were sent along with it to the defendant by him for the invoices under the dispute in this case. He deposed that initially for about 4-5 years the defendant continued to pay him as per invoice raised, however, thereafter although the defendant continued to pay but it was on approximate basis or less amount then raised in the invoice and that since last about 4-5 years, the defendant had not made the payment as per ledger. He deposed that the invoices filed by him on record were only for the last three years from the filing of the suit and that some of the payment had been received by him from the defendant against the invoices filed by him on record. He deposed that the amount of Rs. 3,26,288/- as shown in the ledger account Ex. PW1/3 is the outstanding amount to be paid by the defendant till 31.03.2019 which was shown as an opening balance for the next financial year starting from 01.04.2019. He could not specifically point out from the tax invoices on record as to against which he had received payment, part payment or not received any payment, however, deposed that it could be seen from ledger. He denied that no payment against any invoice was due to be paid by the defendant to the plaintiff or that he had not filed the complete CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 9 of 16 ledger account of the defendant. He deposed that he had written several e-mails to the defendant that the payment was not being received, however, he had not placed any such emails on record. He further deposed that the invoices corresponding to the opening balance of Rs. 3,26,288/- as reflected in ledger Ex. PW1/3 had not been placed by him on record. He denied the suggestion that there was no outstanding amount of Rs. 3,26,288/- due against the defendant to be paid to the plaintiff. He deposed that he had lastly supplied the material / goods to the defendant on 14.03.2020. He deposed that he had sent the information to the defendant regarding outstanding balance of Rs. 3,26,288/- however, he had not placed on record any proof to that effect. He denied the suggestions that some of the goods delivered by him to the defendant were defective or that he had received complete payment towards the goods supplied by him to the defendant or that there were no outstanding dues to be by the defendant to him or that no payment was outstanding to be paid by the defendant to him or that the ledger account Ex. PW1/3 was a false and fabricated document.
11. The case of the plaintiff is to the effect that the defendant had placed orders for the purchase of material i.e. rubber belt, grease robin gasket, seals etc from the plaintiff, the defendant had been making part payments to the plaintiff regarding said material, the plaintiff used to maintain an open, mutual and current account in the name of the defendant during the course of business transactions and the said account showed an outstanding amount of Rs. 6,25,272/- to be paid by the CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 10 of 16 defendant to the plaintiff. Vide the present suit, the plaintiff has prayed for recovery of said outstanding amount of Rs. 6,25,272/- as reflected in the said ledger account along with interest @ 18% p.a. with costs of the suit.
11.1 It is thus evident that the case of the plaintiff is based on the said ledger account Ex. PW1/3. Perusal of the said ledger account however, shows that it is completely unreliable because firstly its first portion i.e. from 01.04.2018 to 31.03.2019 is computer generated document, whereas its second portion from 18.04.2019 to 14.03.2020 is a hand written document. The plaintiff has not explained as to why its first part is computer generated whereas its second part is hand written document. Plaintiff has failed to explain any sufficient reason for it. Secondly, the first part of the said ledger account mentions an opening balance of Rs. 2,39,753.87/- as on 01.04.2018 as outstanding amount against the defendant, however, the plaintiff has failed to explain the basis on which the said opening balance was calculated and mentioned in the said ledger account Ex. PW1/3. Thirdly, the ledger account portion from 01.04.2018 to 31.03.2019 mentions an outstanding amount of Rs. 4,23,870.13/- to be paid by the defendant to the plaintiff, however, in the ledger account portion from 18.04.2019 to 14.03.2020, the opening balance has been shown as Rs. 3,26,288/-. PW-1 in its cross examination has inter alia deposed that the amount of Rs. 3,26,288/- as shown in the ledger account Ex. PW1/3 was the outstanding amount to be paid by the defendant till 31.03.2019 which was shown as opening balance for the next financial year starting from 01.04.2019. PW-1 further deposed that the invoices CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 11 of 16 corresponding to the opening balance of Rs. 3,26,288/- as reflected in ledger account Ex. PW1/3 had not been placed on record by him. He also deposed that although he had sent the information to the defendant regarding outstanding balance of Rs. 3,26,288/-, however, he had not placed on record any proof to that effect. It is evident that the outstanding balance of Rs. 4,23,870.13/- as mentioned in the ledger as on 31.03.2019 also does not match with the opening balance as on 18.04.2019 of Rs. 3,26,288/-. As discussed above, the plaintiff has also not explained or proved the basis upon which the said opening balance of Rs. 3,26,288/- was reached or calculated by him. Fourthly, it is also evident that the plaintiff has not proved the complete ledger account. The ledger account proved on record by plaintiff is from 01.04.2018 to 30.03.2019 & from 18.04.2019 to 14.03.2020 although PW1 / plaintiff in his cross examination has deposed that he had been supplying the said material to defendant since about 12-14 years. In the said circumstances, the ledger account Ex. PW1/3 becomes highly doubtful which cannot be relied upon in the present case. As discussed above, the case of the plaintiff mainly depends upon the said ledger account Ex. PW1/3, however, as it is highly undoubtful and cannot be relied upon, hence, the suit of the plaintiff is liable to be dismissed.
12. Further, the plaintiff / PW-1 has inter alia deposed in his cross examination that some of the purchase orders for goods were given by the defendant through e-mail and some of the orders were given by the defendant verbally i.e. telephonically. He however, deposed that he had not placed any such purchase order on record. He further deposed that mostly the goods were CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 12 of 16 sent to the defendant through courier and sometimes it was also sent through transport and on very few occasions it was delivered by hand. He further deposed that he had not placed on record any delivery reports of transport or courier. He further deposed that he had not placed on record any proof to show that the goods / material or the invoices were actually received by the defendant. He also deposed during his cross examination that the invoices filed by him on record were only for the last three years from the date of filing of the suit. He could not specifically point out as to against which he had received payment, part payment or not received any payment. He further deposed that the invoices corresponding to the opening balance of Rs. 3,26,288/- as reflected in ledger Ex. PW1/3 had not been placed on record by him. It is thus evident that the plaintiff / PW-1 has admitted that he has not placed any purchase order on record, he has not placed on record any delivery reports of transport or courier, he has not placed on record any proof to show that the goods / material or the invoices were actually received by the defendant and he also could not specifically point out from the tax invoices on record as to against which he had received payment, part payment or not received any payment. It was also an admitted position by PW-1 that the invoices corresponding to the opening balance of Rs. 3,26,288/- as reflected in ledger Ex. PW1/3 had not been placed on record by him. These all are material lacunae in the case of the plaintiff due to which the plaintiff has failed to prove its case against the defendant beyond preponderance of probabilities. The misery of the plaintiff is further compounded by the fact that as discussed above the ledger account Ex. PW1/3 as maintained by CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 13 of 16 the plaintiff qua the defendant is also highly doubtful and unreliable. The suit of the plaintiff is thus liable to be dismissed.
13. The record would show that the plaintiff had subsequently filed one application under Section 151 CPC for taking the certificate under Section 65B of the Indian Evidence Act, 1872 on record along with a certificate under Section 65B of the Indian Evidence Act, 1872. The said application was allowed vide order dated 02.05.2024 and the said certificate under Section 65B of the Indian Evidence Act, 1872 was taken on record. The said certificate under Section 65B of the Indian Evidence Act, 1872 was filed with respect to the tax invoices / bills, ledgers and other digital documents filed by the plaintiff. The record would however show that the plaintiff has not filed a proper certificate mentioning the conditions under Section 65B (2) of the Indian Evidence Act, 1872. It was not mentioned in the said certificate that the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer. It was also not mentioned that during the said period the information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer into the ordinary course of the said activities. It was also not mentioned that throughout the material part of the said period, the computer was operating properly or, if not, then in any respect of any period in which it was not operating properly or was out of operation during that CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 14 of 16 part of the period was not such as to affect electronic record or the accuracy of its contents. It is thus evident that the plaintiff has not filed any proper certificate under Section 65B of the Indian Evidence Act, 1872 and as such the electronic record including part of the ledger Ex. PW1/3, invoices Ex. PW1/2 (colly) and other electronic record filed by the plaintiff cannot be read in evidence. It is pertinent to note that the plaintiff has not also filed any declaration on oath qua electronic record required under Order XI Rule 6(3) of the Commercial Courts Act, 2015 as applicable to the CPC.
14. In view of the above said discussion, the plaintiff has failed to prove the issue no. 1 to the effect that it is entitled to recover from the defendant a sum of Rs. 6,25,272/- as prayed in the plaint. Issue no. 1 is thus decided against the plaintiff.
15. Issue no. 2 If answer to issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period?
In view of my findings on issue no. 1 to the effect that plaintiff is not entitled to recover from the defendant a sum of Rs. 6,25,272/- as prayed in the plaint, it is held that the plaintiff has also failed to discharge the onus of proof qua the issue no. 2. The issue no. 2 is thus also decided against the plaintiff and it is held that the plaintiff is not entitled to any interest.
16. Issue No. 3CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 15 of 16 Relief.
In view of above said discussion and findings on issue no. 1 & 2, it is held that the plaintiff is not entitled to any relief and has failed to prove its case beyond preponderance of probabilities against the defendant.
17. The suit of the plaintiff is thus dismissed, however, without any order as to costs.
Decree sheet be drawn accordingly.
A copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
18. File be consigned to record room after due compliance.
Announced in open Court Digitally on 24.07.2024 signed by AMIT AMIT BANSAL BANSAL Date:
2024.07.24 15:00:06 +0530 (Amit Bansal) District Judge (Commercial Court)-03, South-West, Dwarka Courts, New Delhi 24.07.2024 CS (COMM) 446/2023 Shri Sunil Kumar Vs. M/s Knit Craft Apparels International Pvt. Ltd. Page No. 16 of 16