Delhi District Court
Vishal Aggarwal vs Kapil Goel on 22 April, 2025
IN THE COURT OF GAURAV: DISTRICT JUDGE-01
SHAHDARA DISTRICT, KARKARDOOMA COURTS:
DELHI
CNR No. DLSH01-005062-2023
RCA(DJ) No. 86/2023
In the matter of:-
Memo of Parties
M/s Vishal Enterprises
(However, Sh. Vishal Aggarwal is not the proprietor)
1/2038, 1st Floor,
Street No. 22, East Ram Nagar,
Shahdara, Delhi - 110032. ...Appellant
Versus
Sh. Kapil Goel
S/o Sh. N M Goel
Prop. of M/s Kapil Creation,
25/1, East Azad Nagar,
Opposite Shakti Mandair
Delhi-110051. ...Respondent
Date of Institution : 16.08.2023
Date of final argument : 02.04.2025
Date of judgment : 22.04.2025
Result : Dismissed
(Sh. Ujjal Dass, Ld. Counsel for Appellant)
(Sh. Narender Bhandari, Ld. Counsel for Respondent)
JUDGMENT
INTRODUCTION
1. Vide this judgment, I shall dispose of the present civil appeal GAURAV under Order XLI Rule 1 read with Section 96 of the Code of Civil Digitally signed by GAURAV Date: 2025.04.22 16:34:06 +0530 RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 1 of 24 Procedure, 1908 (hereinafter referred as CPC), which has been filed by the appellant/defendant against the impugned judgment and decree dated 03.06.2023, passed by the Ld. Trial Court, whereby the suit of the respondent/plaintiff was partly decreed. Alongwith present appeal, separate application under Order XLI Rule 5 read with Section 151 CPC for seeking stay of execution, has also been filed by the appellant/defendant as the impugned decree is currently pending under execution. Apart from that, another separate application under Order XLI Rule 3A (1) and (2), has also been filed seeking condonation of delay in filing appeal.
2. To avoid confusion and for the ease of reference and clarity in the judgment, the appellant and respondent herein, shall be referred to by their original nomenclature in the suit as "defendant" and "plaintiff" respectively, throughout the present judgment.
BRIEF MATRIX OF THE SUIT
3. The plaintiff is running his business under the name and style of "M/s Kapil Creations" which is engaged in sale and purchase of fabrication of garments; that the defendant had purchased cambric white clothes amounting to Rs. 2,60,572/ from the plaintiff on credit basis vide Challan No. 2327 dated 07.07.2017 which bears the receiving of the defendant; that the defendant had failed to make the payment of the aforesaid amount within the agreed credit period and upon several requests of the plaintiff, the defendant had returned clothes amounting to Rs. 25,596/-, thereby leaving a balance of Rs. 2,34,976/- which was promised to be paid by the defendant within a month; that upon the failure of the defendant to make the payment of the remaining amount of Rs. 2,34,976/- to the plaintiff, a legal GAURAV demand notice dated 12.03.2018, was sent to the defendant and upon Digitally signed by GAURAV Date: 2025.04.22 16:34:13 +0530 RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 2 of 24 receiving the same, the defendant had returned goods amounting to Rs.15,937/- thereby, leaving a balance of Rs.2,19,039/-; that despite repeated demands of the plaintiff, the defendant has not paid the remaining amount due to the plaintiff in respect of the goods supplied, thereby, rendering the defendant to pay an interest amounting of Rs. 48,400/- on the principal amount of Rs. 2,19,039/- calculated at interest @ 24% per annum for the period w.e.f. 08.07.2017 to 07.06.2018; that a legal demand notice dated 14.05.2018 was again sent by the plaintiff to the defendant whereby demand of Rs.2,67,439/- was raised in respect of the amount due; that the defendant, despite the repeated request of plaintiff, failed to pay the balance amount of Rs. 2,67,439/-. Hence, plaintiff filed the suit seeking recovery of Rs. 2,67,439/- alongwith interest, before the Ld. Trial Court.
DEFENCE IN ABBREVIATED
4. In the written statement filed on behalf of defendant, it is asserted that the defendant is not the proprietor of "M/s Vishal Enterprises" as claimed and is therefore, not liable for any transaction entered by the plaintiff with the defendant; the defendant had never purchased any goods from the plaintiff as alleged and in fact the goods delivered vide Challan No. 2327 dated 07.07.2017 were taken by the defendant upon the request of the plaintiff only who prior to delivery of the goods had stated them to be of inferior quality and the defendant shall credit cost of the goods supplied after having sold it to any prospective customers; that the defendant denied liability as alleged and claimed to have returned the alleged goods worth the full amount, including by Challan No. 3084 dated GAURAV Digitally signed RCA(DJ)No. 86/2023 by GAURAV M/S. Vishal Enterprises Vs. Kapli Goel Page No. 3 of 24 Date: 2025.04.22 16:34:26 +0530 24.03.2018, and disputed the existence of any contractual relationship in the nature of a sale; the suit of the plaintiff is based on forged and fabricated documents with the motive to extort money from defendant.
5. In reply to the WS of the defendant, plaintiff filed replication wherein the contents of the plaint were reiterated and version of defendant was denied completely.
FRAMING OF ISSUES
6. After completion of pleadings, following notional issues were framed by the Ld. Trial Court, vide order dt. 31.08.2019: -
1. Whether the plaintiff is entitled to recover Rs.
2,67,439/- from the defendant along with interest @ 24% per annum? OPP
2. Whether the defendant has returned the goods worth Rs. 2,19,039/- to the plaintiff? OPD
3. Relief.
PLAINTIFF'S EVIDENCE
7. After framing of the issues as above, matter was listed for plaintiff's evidence. In order to prove the case, plaintiff stepped into witness box and examined himself as PW-1, who tendered his affidavit as Ex.PW1/A in which he reiterated the contents of the plaint, which are not repeated herein for the sake of brevity. He has also relied upon certain documents which are as follows: -
S.No Document(s) Exhibit(s)
1. Challan under which goods were Ex.PW1/1 (Colly.) GAURAV
supplied (OSR) Digitally signed
by GAURAV
Date: 2025.04.22
16:34:31 +0530
RCA(DJ)No. 86/2023
M/S. Vishal Enterprises Vs. Kapli Goel Page No. 4 of 24
2. Whatsapp Chat/Messages Ex.PW1/2 (Colly.)
(OSR)
3. Legal Notice Dated 14.05.2018 Ex.PW1/3
4. Postal Receipt Ex.PW1/4
5. AD Card Ex.PW1/5
6. Certified under section 65B IEA Ex.PW1/6
7. Ledger Account of M/S Vishal Mark-X
Enterprises for the period
01.04.2017 to 31.03.2018
8. PW1 was cross examined at length by Ld. Counsel for defendant. Thereafter, on the statement of plaintiff, plaintiff's evidence was closed vide dated 30.11.2022.
DEFENDANT'S EVIDENCE
9. In order to demolish the case of the plaintiff, defendant also examined himself as DW-1 and tendered his affidavit as Ex.DW1/1 in which he opposed the contents of the plaint, which are not repeated herein for the sake of brevity. He has also relied upon certain documents which are as follows: -
S.No Document(s) Exhibit(s)
1. Carbon Copy of Challan No. 3067 Ex.DW1/A
Dated 10.02.2018
2. Carbon Copy of Challan No. 3084 Ex.DW1/B
Dated 24.03.2018
3. Carbon Copy of Challan No. 3086 Ex.DW1/C
Dated 27.03.2018
10. DW-1 was cross examined at length by Ld. Counsel for plaintiff, thereafter, on the submission of Ld. Counsel for defendant, defendant's evidence was also closed vide order dated 27.03.2023 GAURAV and the matter was listed for final arguments. Digitally signed by GAURAV Date: 2025.04.22 16:34:36 +0530 RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 5 of 24
11. After hearing the parties, suit was partly decreed by the Ld. Trial Court, vide impugned judgment and decree dated 03.06.2023 in favour of the plaintiff and against the defendant with cost to the effect that the defendant would pay the amount of Rs. 2,43,133/- to the plaintiff along with pendente lite interest @ 12 % p.a., till date of realization.
12. The defendant being aggrieved by the said impugned judgment and decree dated 03.06.2023 passed by Ld. Trial Court, preferred the present appeal mainly on the grounds that:
1.) The Ld. Trial Court has failed to properly appreciate the evidence and has fallen into error in not finding that the preponderance of probability was in favour of defendant.
2.) The Ld. Trial Court did not provide sufficient opportunities to examine the witness, to prove his case and hastily posted the case for final arguments.
3.) The Ld. Trial Court erred in awarding the rate of interest @12% per annum without any evidence led by the respondent to prove the said rate of interest.
Moreover, it is higher than the prevailing bank rate (7% to 8 %).
4.) The Ld. Trial Court has failed to consider the real fact of the matter as there was no liability at all on the defendant, since the defendant has nothing to do with the said proprietary firm i.e. M/s Vishal Enterprises, GAURAV RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 6 of 24 Digitally signed by GAURAV Date: 2025.04.22 16:34:43 +0530 neither he is the proprietor nor he purchased/ ordered the said material. Moreover, the legal notice Ex.PW1/3 also addressed to "Vishal Enterprises" not to defendant.
5.) The Ld. Trial Court has failed to appreciate the fact that the suit was instituted in the name of proprietorship firm and therefore, the same is not maintainable as proprietorship firm has no legal entity like a registered firm.
6.) The Ld. Trial Court has failed to appreciate the fundamental principle of law qua the various authorities on the principle that in the context of commercial transaction, there is a distinction between "receiving a product" and "purchasing a product". Merely receiving a product without any accompanying purchase agreement or invoice may not create a legally enforceable obligation to pay for the product. If there is no evidence of a purchase or a contractual agreement, the recipient may not be liable to pay for the received product.
7.) The Ld. Trial Court has miserably failed to analyze that when there was no contractual relationship between the parties, then no liability could be inferred against the appellant, and in such cases the such judgment/decree is hopelessly bad in the eyes of law.
8.) The Ld. Trial Court has failed to consider that whatsapp chats may not be admissible as evidence if they do not GAURAV Digitally signed by RCA(DJ)No. 86/2023 GAURAV M/S. Vishal Enterprises Vs. Kapli Goel Page No. 7 of 24 Date: 2025.04.22 16:34:48 +0530 reveal or talk about the any transaction that is relevant to the case. The entire whatsapp chats does not disclose any clue with the alleged transaction as stated by the respondent, there is no invoice no., no specific amount, no date, no product, in fact not a single clue about the alleged challan no., it does not even talk about any liability of the defendant to pay for the goods delivered is ascertainable without any clue or reference or indication, the Ld. Trial Court appreciated the said alleged chat as piece of evidence.
9.) The Ld. Trial Court has failed to appreciate the fact that there was no oral agreement between the parties, for sale and purchase of goods, and which held liable the appellant to pay the amount for which the plaintiff filed the said alleged suit for recovery.
10.) The Ld. Trial Court has failed to appreciate the fact that the plaintiff contradicting its own version on the one hand alleging as the defendant purchased the clothes i.e. cambric white etc., from the plaintiff on credit basis and against the Challan No. 2327 and the defendant owed a sum of Rs. 2,60,572/-, however, the said challan does not disclose what type of fabric, how much quantity, what is the rate and how much amount, on the other hand, if the said cloths were purchased on credit and there, its mere bears some numbers without any related particulars and the alleges figures which mentions on the alleged challans, does not qualify the sum of the said quantity and amount thereto. This creates a serious GAURAV Digitally signed by GAURAV RCA(DJ)No. 86/2023 Date: 2025.04.22 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 8 of 24 16:34:53 +0530 doubt on the genuineness of the said documents.
11.) The Ld. Trial Court has failed to appreciate the fact that the ledger account for the plaintiff/defendant for the period w.e.f. 01.04.2017 to 31.03.2018, the material is ex-facie entirely and demonstrably irrelevant, cannot be part of evidence as it has not been part of plaintiff's/defendant's evidence (evidence by way of affidavit) and it never exhibited in the evidence. Contrary to it, the given the weightage to the said ledger account in the judgment and decree, and in such cases, the said judgment and decree is bad in the eyes of law. The plaintiff just put the mere entries in the ledger account and no witness had been examined by the plaintiff to prove the said ledger account/challans.
12.) The Ld. Trial Court has failed to appreciate the fact that the plaintiff failed to place on record any receipt by the defendant of any bill or invoice or any agreement, if there was any liability of the defendant then all the facts and documents must be sync'ing incline.
13.) The Ld. Trial Court has errored to misconceived "burden of proof as to particulars facts" and section 101 and 102 of the IEA. The plaintiff failed to produce any agreement, receipt of bill/invoices which undoubtedly establish claim.
13. Notice of this appeal as well as the aforesaid application, was sent to plaintiff and trial court record was also requisitioned for GAURAV adjudicating the present appeal. Digitally signed by GAURAV Date: 2025.04.22 16:34:59 +0530 RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 9 of 24
14. Plaintiff has duly appeared through counsel and filed reply to the appeal as well as replies to the aforesaid applications, denying all the assertions made therein and have prayed for dismissal of the same.
ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR DEFENDANT
15. It is contended that the Ld. Trial Court failed to properly consider the testimonies of the witnesses, and mechanically, decreed the suit in favour of plaintiff without assessing the contradictions, material omissions, and the real nature of the transaction in question between the parties to the suit.
16. It is further contended that the appeal is being filed with delay of 24 days as the defendant obtained the certified copies on 11.07.2023 and thereafter, a natural climate of flood/heavy rain in Delhi, which disturbed the life of every citizen, which caused delay to coordinate the defendant to his counsel in order to prepare the appeal.
17. It is further contended that there was no subsisting contractual liability towards the plaintiff. The defendant had already returned the entire stock of inferior quality of goods, including goods worth Rs. 2,19,039/- to the plaintiff, thereby, discharging any alleged obligation.
18. It is further contended that though the defendant admitted receipt of certain goods vide challan no. 2327 dated 07.07.2017 Ex. PW1/1, but denied that the same was pursuant to any concluded sale transaction as alleged. Moreover, the fundamental principle of law Digitally signed by GAURAV GAURAV Date:
2025.04.22 RCA(DJ)No. 86/2023 16:35:04 +0530 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 10 of 24 qua the various authorities on the principle that in the context of commercial transaction, there is a distinction between "receiving a product" and "purchasing a product". Merely receiving a product without any accompanying purchase agreement or invoice, may not create a legally enforceable obligation to pay for the product. If there is no evidence of a purchase or a contractual agreement, the recipient may not be liable to pay for the received product.
19. It is further contended that defendant had already returned the inferior quality of goods through three challan(s) i.e. Ex. DW1/A, Ex. DW1/B, and Ex. DW1/C. Moreover, Ex. DW1/B, evidenced the return of goods worth Rs. 2,19,039/- and, thus, no amount remained payable by the defendant.
20. It is further contended that the suit was instituted in the name of proprietorship firm and therefore, the same is not maintainable as proprietorship firm has no legal entity like a registered firm.
21. It is further contended that the ledger account for the period w.e.f. 01.04.2017 to 31.03.2018 Mark "A", relied upon by the plaintiff is irrelevant, cannot be part of evidence as it has not been part of evidence by way of affidavit of PW-1 but the Ld. Trial Court has given much weightage to the said Ledger Account in the impugned judgment.
22. It is further contended that the entire Whatsapp Chat/Messages Ex.PW1/2 relied upon by the plaintiff, does not disclose any clue with the alleged transaction as claimed.
23. It is further contended that the plaintiff miserably failed to produce any agreement, receipt of bill/invoices which undoubtedly GAURAV RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 11 of 24 Digitally signed by GAURAV Date: 2025.04.22 16:35:09 +0530 establish his claim. At the end, it is prayed that the application under Order XLI Rule 3A CPC seeking condonation of delay in filing appeal, may kindly be pleased be allow and condoned the delay in filing appeal, in the interest of justice and also prayed to set aside the impugned judgment and decree dated 03.06.2023 passed by Ld. Trial Court and to allow the present appeal.
ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR PLAINTIFF
24. Per contra, the plaintiff filed the written reply to the said application under Order XLI Rule 3A CPC and also vehemently opposed the said application on the ground that the defendant did not file appeal within stipulated period of 30 days from the date of judgment and decree and the plea of natural climate of flood/heavy rain is not admissible.
25. It is further contended that there is no illegality or infirmity in the impugned judgment and decree dated 03.06.2023, passed by Ld. Trial Court.
26. It is further contended that the Ld. Trial Court thoroughly examined the oral and documentary evidence available on record and thereafter, reached at just conclusion. The defendant duly admitted the receipt of goods against the Chalan No. 2327 dated 07.07.2017 in his pleadings as well as in his testimony. The findings of the Ld. Trial Court are based on sound reasoning and supported by the documents exhibited.
27. It is further contended that the business transactions were carried out between the parties to the suit, based on mutual GAURAV Digitally signed by GAURAV RCA(DJ)No. 86/2023 Date: 2025.04.22 16:35:14 +0530 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 12 of 24 understanding and on an oral agreement, supported by delivery of goods and communications i.e. Whatsapp Chat/Messages Ex.PW1/2, duly exchanged between the parties.
28. It is further contended that the defendant admitted his signature on the delivery challan no. 2327 dated 07.07.2017 Ex. PW1/1, which contains the name of "M/s Vishal Enterprises". Therefore, he cannot take the plea that he is not the proprietor of the "M/s Vishal Enterprises".
29. It is further contended that the ledger account was part of the record and duly marked as Mark "A" during trial.
30. I have perused the entire record of appeal as well as trial court record relied upon by the parties and considered the rival contentions made before the court.
31. Before proceedings further, firstly, this court has to decide as to whether the application under Order XLI Rule 3A CPC for seeking condonation of delay in filing the present appeal, deserves to be allowed or not. For that, it is imperative to mention herein that the law on Order XLI Rule 3A CPC is well settled. As per the said provision if an appeal is filed after the prescribed limitation period, the appellant is required to file an application explaining the delay and seeking condonation.
32. To answer the above first question, it is important to point the needle towards the fact that the delay of 24 days is neither inordinate nor unexplained. The reasons cited by the defendant i.e. the natural calamity and disruption of normal services due to monsoon conditions in Delhi, are seems to be plausible and backed GAURAV Digitally signed by GAURAV RCA(DJ)No. 86/2023 Date: 2025.04.22 16:35:26 +0530 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 13 of 24 by general public knowledge and news reports of heavy rainfall during that period. Furthermore, there is no allegation of mala fide or deliberate delay.
33. The right to appeal is a substantive legal right, and a short delay should not defeat the remedy available to a litigant, when sufficient cause is shown. Although, the plaintiff has opposed the aforesaid application, but has not rebutted or disproved the factual grounds urged by the defendant, except to assert that the delay is unjustified.
34. The expression "sufficient cause" should receive a liberal construction to advance substantial justice, provided there is no gross negligence or deliberate delay.
35. In the light of aforesaid discussion and findings and in view of the above legal position, in the interest of justice, the aforesaid application under Order XLI Rule 3A CPC, is hereby allowed and the delay of 24 days in filing the appeal is hereby condoned. The said application is disposed of accordingly.
36. Now the second question arises that whether the money decree granted in favour of plaintiff as mentioned above, was rightly passed by the Ld. Trial Court, based on evidences available on record.
37. Before proceeding further, it is pertinent to mention herein that from the inception of the suit, it is admitted fact that the goods have been delivered to the defendant vide delivery Challan No. 2327 dated 07.07.2017 Ex.PW1/1 (Colly.). The Ld. Counsel for the defendant contended that the Ld. Trial Court wrongly appreciated Digitally signed by GAURAV GAURAV Date:
2025.04.22 16:35:31 RCA(DJ)No. 86/2023 +0530 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 14 of 24 the evidences as well as pleadings/ documents while passing the impugned judgment and decree. However, on a holistic re- appreciation of the evidence, this Court finds no manifest error in the appreciation of material documents and testimonies by the Ld. Trial Court. Moreover, a perusal of the impugned judgment clearly reveals that the Ld. Trial Court has duly considered the pleadings of both parties, framed relevant issues, and evaluated oral and documentary evidence available on record. The Ld. Trial Court has extensively referred to Challan(s) under which goods were supplied i.e. Ex.PW1/1 (colly.), Whatsapp Chat/Messages Ex.PW1/2(colly.), Ledger Account of defendant Mark "X" and the testimony of PW-1 and DW-1. The Ld. Trial Court has given cogent reasons for relying upon PW-1's version and has dealt with the defense taken by the defendant in para-wise detail. No material evidence appears to have been ignored, and no misreading of documents is evident. The argument of the Ld. Counsel for the defendant that evidence has been wrongly appreciated is a vague plea and lacks substance in the absence of any specific infirmity being pointed out.
38. Moreover, perusal of the cross examination of DW-1, it is clearly revealed that DW-1 duly admitted his signature on the Ex.PW1/1 at point A and also admitted that in the Challan No. 2327 dated 07.07.2017, it is nowhere mentioned that the goods received by him from the plaintiff were of inferior quality as claimed. It is also admitted that he does not have any letter, communication, or e- mail showing that goods supplied to him by plaintiff, are of inferior quality. It is also admitted that he did not obtain any expert's opinion regarding the inferior quality of goods which were allegedly supplied by the plaintiff. It is also admitted that he did not maintain any ledger account in respect of Challan(s). GAURAV Digitally signed RCA(DJ)No. 86/2023 by GAURAV Date: 2025.04.22 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 15 of 24 16:35:36 +0530
39. It is settled law that in civil trials, issues are to be decided on the basis of preponderance of probabilities and not proof beyond reasonable doubt. Upon a careful perusal of the testimony of DW-1 and his pleadings, it is evident that the defendant duly admitted his signature on the Challan No. 2327 dated 07.07.2017 Ex.PW1/1. The defense taken by the defendant that the goods received by him were of inferior quality is neither supported by documentary evidence nor by any corroborating witness. Therefore, in such scenario, Ld. Trial Court, rightly placed reliance on the admission of delivery of goods vide Challan No. 2327, which is consistent with the plaintiff's case. Resultantly, this Court finds no infirmity in the reasoning adopted by the Ld. Trial Court.
40. Ld. Counsel for the defendant further contended that the delivery Challan No. 2327, purportedly forming the basis of the transaction in question, is vague and bereft of essential particulars such as the description of the fabric, quantity, rate, and total amount, thereby, creating serious doubt on its genuineness and evidentiary value. However, this contention is not tenable in light of the defendant's own admission in his pleadings as well as in his testimony as DW-1 which is already discussed above in detailed that he had received the goods covered under the said Challan No. 2327 Ex.PW1/1(colly.) and had also signed the same at Point A. Once the execution and acknowledgment of the Challan stands admitted, the absence of certain particulars, though relevant, cannot by itself render the transaction invalid or negate the liability, especially when the defendant never raised any contemporaneous objection or lodged any protest or complaint at the time of receipt of goods. In such circumstances, the belated plea challenging the validity of the said Challan No. 2327 Ex.PW1/1 (colly.), appears to be an afterthought GAURAV RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 16 of 24 Digitally signed by GAURAV Date: 2025.04.22 16:35:43 +0530 and was rightly rejected by the Ld. Trial Court. The admission of delivery and absence of any rebuttal evidence from the defendant sufficiently supports the inference drawn by the Ld. Trial Court, and no illegality can be found in the conclusion arrived at by the Ld. Trial Court.
41. In the instant appeal, defendant has sought to evade his liability by claiming that the entire stock of goods, were already returned including the inferior quality of goods worth Rs. 2,19,039/- to the plaintiff vide Challan No. 3084 Ex.DW1/B. However, a close scrutiny of the record demonstrates that this plea is not only unsupported by any cogent or contemporaneous evidence but is, in fact, clearly refuted by the circumstances available on record. It is pertinent to mention herein that the major defence of the defendant rests on this single Challan No. 3084 Ex.DW1/B, which is claimed to evidence the alleged return of inferior quality of goods to the plaintiff. However, the same was completely denied by the plaintiff. The heavy reliance on this single Challan No. 3084 Ex.DW1/B, in the absence of any other corroborative material, makes it imperative that the said Challan be scrutinized with greater caution and legal rigor. Firstly, the said Challan is conspicuously not signed or acknowledged by the plaintiff or any of its authorized representative. No receipt or acknowledgment has been placed on record from the plaintiff's side, accepting the alleged return of goods as claimed. The defendant has also failed to examine any witness in witness box or disclose the identity of any person to whom the goods were allegedly returned. Moreover, in his cross-examination as DW-1, he admitted that no ledger account or any contemporaneous record was maintained by him with respect to the said transaction as claimed. This admission significantly weakens the defence and further RCA(DJ)No. 86/2023 GAURAV M/S. Vishal Enterprises Vs. Kapli Goel Page No. 17 of 24 Digitally signed by GAURAV Date: 2025.04.22 16:35:49 +0530 strengthen the case of plaintiff.
42. Most importantly, the Ld. Trial Court has rightly observed that the stamp ink used to depict "3084" appearing on the said Challan No. 3084 Ex.DW1/B is evidently in different from the stamped ink used for depicting the challan numbers in rest of the challans. Thus, the same strongly suggesting interpolation and fabrication. The said discrepancy, along with the absence of any supporting documents or evidence, renders the said Challan No.3084 Ex. DW1/B, unreliable and clearly manufactured to create a false defence.
43. In law, a party who asserts a fact must prove it by producing credible and admissible evidence. The burden was squarely on the defendant to prove that the inferior quality of goods was returned vide said Challan No. 3084 Ex.DW1/B. However, the defendant has not only failed to prove the actual return of goods but has also failed to explain the material inconsistencies and lack of contemporaneous documentation. It is also settled that self-serving documents, not proven through reliable testimony or supporting records, cannot be the basis of rebutting an otherwise supported claim. In these circumstances, the Ld. Trial Court's rejection of the said Challan No. 3084 Ex.DW1/B as a fabricated and unreliable document, and consequently, the entire defence built upon it, is well reasoned, legally sound, and does not warrant any interference.
44. Ld. Counsel for the defendant that the Ld. Trial Court failed to provide the adequate opportunities to the defendant to examine witnesses and hastily proceeded to list the matter for final arguments. However, this contention is wholly untenable in view of GAURAV Digitally signed by GAURAV Date: 2025.04.22 16:35:54 +0530 RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 18 of 24 the trial court record, which clearly reflects that the defendant's evidence was closed on the basis of a separate statement made by the Ld. Counsel for the defendant on 27.03.2023 before the Ld. Trial Court. Once a party voluntarily makes a statement that it does not wish to lead any further evidence, and the same is duly recorded by the Court without any protest or reservation, it cannot subsequently turn around and allege the denial of opportunity. There is nothing on record to show that defendant moved any application seeking recall of the said order or permission to lead evidence thereafter. Moreover, the defendant was granted sufficient time and opportunity to present his case, and the closing of evidence was not done in a mechanical, hastily or arbitrary manner. In the absence of any material to show that prejudice was caused or that the defendant was prevented by sufficient cause from leading evidence, this ground cannot be sustained. The Ld. Trial Court has rightly proceeded with the matter after closure of evidence and the said course of action does not suffer from any legal infirmity.
45. Ld. Counsel for the defendant further contended that Ld. Trial Court failed to appreciate the fundamental distinction in commercial transactions between mere receipt of goods and a legally enforceable purchase. He argued that mere delivery or receipt of goods, without an accompanying purchase order, invoice, or contract, does not establish a binding obligation to pay for the said received goods from the plaintiff. While the legal proposition that receipt alone does not necessarily imply purchase or liability is well settled, the present case does not rest merely on passive receipt of goods. In the instant matter, the plaintiff has placed on record the delivery Challan No. 2327 Ex.PW1/1(colly.) duly signed by the defendant, thereby, indicating acknowledgment of delivery of the GAURAV RCA(DJ)No. 86/2023 Digitally signed by GAURAV M/S. Vishal Enterprises Vs. Kapli Goel Page No. 19 of 24 Date: 2025.04.22 16:35:59 +0530 said goods. The defendant has neither denied his signature on the said Challan No. 2327 Ex.PW1/1(colly.) nor raised any contemporaneous objection or dispute regarding the delivery, quantity, or nature of goods supplied at the time of receiving the said goods. In such circumstances, the principle that mere delivery without contractual obligation does not create liability cannot come to the defendant's aid, particularly when the said signed Challan No. 2327 Ex.PW1/1(colly.) by the defendant substantiates the transaction between plaintiff and defendant. The Ld. Trial Court has correctly appreciated that such acknowledgment constitutes strong piece of evidence in respect of business relationship and implied acceptance of goods, and that no contrary explanation or rebuttal has been provided by the defendant. Hence, the finding of the Ld. Trial Court that the defendant is liable to make payment for goods received is legally sustainable and does not suffer from any infirmity.
46. Ld. Counsel for the defendant further contended that no contract existed between the plaintiff and defendant, therefore, no liability could be imposed upon the defendant. The existence of a formal written agreement is not mandatory for a recovery suit. What is essential is evidence of supply of goods and non-payment. The delivery of Challan No. 2327 Ex.PW1/1(colly.) duly signed by the defendant clearly indicates the business relationship between the parties. In such a factual matrix, the Ld. Trial Court's conclusion that a liability arose from the transaction is supported by evidence.
47. Ld. Counsel for the defendant further contended that the Ld. Trial Court has erred while relying upon the WhatsApp chats Ex.PW1/2(Colly) (7 pages). Such Whatsapp Chats do not disclose GAURAV Digitally signed by GAURAV RCA(DJ)No. 86/2023 Date: 2025.04.22 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 20 of 24 16:36:04 +0530 any reference to the specific transaction in question and therefore, the same are inadmissible and irrelevant. It was also specifically contended that the entire Whatsapp Chat conversation Ex.PW1/2 does not refer to any particular transaction, nor does it identify any challan number or establish any liability upon the defendant. However, upon perusal of the record, it is evident that the WhatsApp chats Ex.PW1/2 were brought on record by the plaintiff in support of its claim and were duly exhibited during trial. The defendant, in fact, admitted that the said whatsapp chats were exchanged between the parties, though, he took the stand that the said whatsapp chats Ex.PW1/2 did not relate to the transaction in question. This court is of the view that while the said Whatsapp Chats may not, in isolation, contain exhaustive transactional details but at the same time, they do corroborate the plaintiff's version that a commercial relationship did exist between the parties. The said Whatsapp Chats Ex.PW1/2 reveal a course of dealing and communication consistent with the existence of ongoing business transaction between the parties to the suit. Furthermore, defendant did not deny the mobile number used in the Whatsapp Chats nor did he raise any contemporaneous objection to their authenticity or authorship. In the present case, the Ld. Trial Court has not based its findings solely on the Whatsapp Chats Ex.PW1/2 but has treated them as corroborative piece of evidence alongside the signed delivery challans by the defendant. Accordingly, the contention of the Ld. Counsel for the defendant with respect to the inadmissibility and irrelevance of Whatsapp Chats Ex.PW1/2 is without substance and does not warrant interference with the impugned judgment.
48. Ld. Counsel for the defendant further contended that the GAURAV award of interest @ 12% per annum as granted by the Ld. Trial Digitally signed by GAURAV Date:
2025.04.22 16:36:10 RCA(DJ)No. 86/2023 +0530 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 21 of 24 Court, is excessive and unsupported by any evidence. This contention is not sustainable. It is settled that, even in the absence of written agreement specifying the rate of interest, the court is empowered to grant reasonable interest as per the Section 34 of CPC, considering the nature of transaction and the conduct of the parties. In the present case, the transaction in question between the parties was evidently commercial in nature, and therefore, the award of 12% interest per annum, being within the bounds of judicial discretion and consistent with the commercial norms, cannot held to be illegal or excessive in the present case.
49. At last, the Ld. Counsel for the defendant vehemently contended that the present suit, instituted in the name of a proprietorship firm, is not maintainable and also relied upon the judgment of Hon'ble Delhi High Court in " Svapn Constructions v. IDPL Employees Co-operative Group Housing Society Ltd., (2005 SCC Online Del 1392)". In that case, the Hon'ble Delhi High Court held that a petition filed solely in the name of a proprietorship concern, without naming its proprietor, is not maintainable, as a sole proprietorship is not a legal entity. However, the said judgment titled as "Svapn Constructions" (supra) of Hon'ble Delhi High Court, is clearly distinguishable on facts and therefore, in the respectful opinion of this court, the same does not apply to the present case. It is pertinent to mention herein that in the judgment of " Svapn Constructions"(supra), the petition was filed exclusively in the name of the firm, without disclosing the name of the proprietor, and hence, it was held to be not maintainable. However, in the present suit, the title of the plaint clearly mentions "Kapil Goel, Proprietor of M/s Kapil Creation" as the plaintiff. The cause title, thus, discloses the natural person instituting the suit and clearly indicates that the GAURAV Digitally signed by GAURAV RCA(DJ)No. 86/2023 Date: 2025.04.22 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 22 of 24 16:37:09 +0530 business is carried on in the name of "M/s Kapil Creation", which is a proprietorship concern. Similarly, the defendant is sued as "M/s Vishal Enterprises through its Proprietor Sh. Vishal." Therefore, both the plaintiff and the defendant are described through their respective proprietors, as required under law. This clearly identifies the natural persons behind the respective proprietorship concerns, thereby, complying with the legal requirement that a sole proprietorship cannot sue or be sued in its own name but must do so through its proprietor.
50. Admittedly, the proprietorship firm is not a separate legal entity and cannot sue or be sued in its own name. A suit on behalf of or against a proprietorship concern must be instituted in the name of its proprietor. The present suit fully complies with this requirement, and therefore, the same is legally maintainable. Therefore, the objection raised by the Ld. Counsel for the defendant, lacks merit and cannot be sustained.
51. In the light of aforesaid discussion and findings, this Court finds no infirmity or illegality in the impugned judgment and decree dated 03.06.2023 passed by the Ld. Trial Court.
52. Since, the defendant has failed to demonstrate any perversity or material irregularity in the said impugned judgment and decree, therefore, the appeal is hereby dismissed being devoid of merits.
53. Consequently, the application under Order XLI Rule 5 CPC is also disposed of as dismissed. The impugned judgment passed by GAURAV Ld. Trial Court is hereby upheld. No orders as to costs. Digitally signed by GAURAV Date: 2025.04.22 16:36:22 +0530 RCA(DJ)No. 86/2023 M/S. Vishal Enterprises Vs. Kapli Goel Page No. 23 of 24
54. Any pending application(s), if any, is also dismissed being infructuous.
55. A copy of this judgment alongwith the trial court record be sent back to the Ld. Trial Court for information.
56. Appeal file be consigned to Record Room as per rules. (Typed to the dictation directly, corrected and pronounced in open court on 22.04.2025). Digitally signed by GAURAV Date:
GAURAV 2025.04.22 16:36:41 +0530 (GAURAV) DISTRICT JUDGE-01 SHAHDARA DISTRICT KARKARDOOMA COURTS DELHI Certified that this judgment contains 24 pages and each page bears my signature.
Digitally
signed by
GAURAV
GAURAV Date:
2025.04.22
16:36:44
+0530
(GAURAV)
DISTRICT JUDGE-01
SHAHDARA DISTRICT
KARKARDOOMA COURTS
DELHI
RCA(DJ)No. 86/2023
M/S. Vishal Enterprises Vs. Kapli Goel Page No. 24 of 24