Delhi District Court
M/S Yokohama India Pvt Limited vs M/S Indian Tyre House on 25 September, 2023
IN THE COURT OF PREM KUMAR BARTHWAL,
DISTRICT JUDGE (COMMERCIAL COURT)-01 : SOUTH
DISTRICT, SAKET COURTS : NEW DELHI
CS (COMM) NO. 161/22
CNR NO. DLST01-001600-2022
M/S. YOKOHAMA INDIA PVT. LIMITED
PLOT NO.1, SECT. 4B,
BAHADURGARH INDUSTRIAL ESTATE,
DISTRICT JHAJJAR, HARYANA-124507 .....PLAINTIFF
Versus
1. M/S. INDIAN TYRE HOUSE
THROUGH PROPRIETOR,
MR. KASHIF KHAN
SHOP NUMBER 2, F-328,
LADO SARAI, MEHRAULI
NEAR CRESCENT MALL, NEW DELHI-110030
2. MR. KASHIF KHAN
PROPRIETOR OF
M/S. INDIAN TYRE HOUSE,
SHOP NUMBER 2, F 328,
LADO SARAI-MEHRAULI,
NEAR CRESCENT MALL,
NEW DELHI-110030 .....DEFENDANTS
Date of Institution : 26.02.2022
Reserved for judgment : 11.09.2023
Date of Judgment : 25.09.2023
JUDGMENT
1. The plaintiff has filed the present suit against the defendants for recovery of Rs. 7,35,334/- (Rupees Seven Lakh, Thirty Five Thousand Three Hundred Thirty Four Only) alongwith interest @ 18%.
2. The brief facts, according to the plaintiff, are that the plaintiff M/s. Yokohama India Pvt. Ltd. is a company incorporated under the provisions of the Companies Act 1956 CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 1 of 20 having its registered office at Plot No.1, Sector 4B, Bahadurgarh Industrial Estate, District Jhajjar, Haryana and Ms. Jyoti Rana was authorized to sign, verify and file the present suit and that the plaintiff/company is engaged in the business of manufacturing and distribution of various types of tyres and its related products and to distribute its products, plaintiff has appointed various distributors/dealers all over the country.
3. According to the plaintiff, the defendant no.2, Mr. Kashif Khan is the proprietor of defendant no.1/M/s. Indian Tyre House and he is engaged in the business of procuring tyres and its allied products manufactured by the plaintiff as a dealer since 2016. It is submitted that the defendant had been purchasing the aforesaid goods from plaintiff on regular basis and the plaintiff had been satisfactorily supplying said goods to the defendant from time to time. It is further submitted that the defendant had placed several orders for procurement of various tyres products and the plaintiff company had supplied/delivered the said goods to the defendant and that the goods supplied by the plaintiff company were always in good condition to the defendant's satisfaction. It is submitted that the plaintiff had raised invoices from time to time upon the defendant which were duly accepted by the defendant without any objections and, for smooth running of business, a running account was maintained by the plaintiff wherein all the invoices raised upon defendant were debited and all the payments made by the defendant were credited. It is submitted that the goods were supplied by the plaintiff on the basis of belief of the representations by the defendant he would make the payment in due course and had the plaintiff not believed the said representations then it would not have supplied the goods to the defendant. It is submitted that the plaintiff has been maintaining a CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 2 of 20 its account in the ordinary course of business as per the Standard Accounting practice and that whenever payments were made by the plaintiff then the same were credited in defendant's account. It is further submitted that as per the Statement of Accounts maintained by plaintiff, a sum of Rs. 7,35,334/- (Rupees Seven Lakh Thirty Five Thousand Three Hundred Thirty Four Only) was outstanding and payable by the defendants as on 20.03.2021. It is submitted that in order to recover the said overdue amount, the plaintiff/company had made repeated demands but defendant has not honored its commitments. It is further submitted that being left with no option, the plaintiff had also got a legal notice dated 21.02.2021 issued to the defendant for payment of its dues and the said legal notice was duly served upon the defendant but he did not make any payment. It is further submitted that as per the bills raised by the plaintiff an interest @ 18% p.a. was to be charged on the outstanding amount of invoice which was not cleared by defendant within specified time of the receipt of goods and that the plaintiff is entitled to an interest @ 18% p.a. on the due amount as the transactions between the parties was commercial in nature and the plaintiff had to bear extra expenditure due to wrongful withholding of payments by the defendant and that the plaintiff suffered loss in other project due to lack of funds. Hence, the present suit for recovery of Rs. 7,35,334/- (Rupees Seven Lakh Thirty Five Thousand Three Hundred Thirty Four Only) alongwith interest has been filed by the plaintiff alongwith pendente lite and future interest @ 18% per annum is also being prayed.
4. Summons of the suit were issued to the defendant who filed written statement contending that the plaintiff has not complied with the provisions of the Commercial Courts Act and CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 3 of 20 that the plaintiff is not entitled to claim any amount or any interest from the defendant. It is submitted that the defendant no.1 is in retail business of tyres and that the defendant no.2, Mr. Kashif Khan is the sole proprietor of defendant no.1/M/s. Indian Tyre House. It is further contended that the defendant was approached by the salesperson of the plaintiff company and he was shown flimsy pictures and that false promises and assurances were given to defendant with respect to rates of plaintiff's tyres and about their replacement policy of the defective tyres. It is contended that upon said assurances and promises, the defendant started giving orders for the tyres to plaintiff/company and it was specifically assured to him that if any tyre was found to be defective then the same will be replaced by the plaintiff at their own cost including the freight charges. It is contended that the plaintiff company have failed to provide the replacement of defective tyres and plaintiff is in illegal possession of the tyres sent by the defendants for replacement and value of such tyres was more than Rs. 4,50,000/-. It is contended that the the defendant used to clear the invoices raised by the plaintiff after receiving the tyres and each order was itself a new contract between defendant and plaintiff company. It is contended that in January 2020 the defendant through his email id "[email protected]" demanded from plaintiff to sort out the issue of adjustment of defective tyres and it was plaintiff company who was not adjusting or replacing defective tyres and plaintiff has also kept the defective tyres of defendant illegally and that the plaintiff company is in illegal possession of the tyres valued more than Rs.4,50,000/-. It is contended that the plaintiff company and defendant used to do business on individual contract/order and payment/invoice was sought after the delivery CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 4 of 20 of tyres by plaintiff and sometimes advance payments were made by defendants to plaintiff. It is further contended that the claim of the plaintiff company is barred by the limitation as all invoices were separate orders and that the plaintiff has deliberately not shown all the payments made by the defendant in its accounts so as to create frivolous pecuniary jurisdiction and to defraud the defendant. It is contended that the invoices, which are annexed with the plaint by the plaintiff company are only for the year 2019-2020 although the case has been filed in 2022 and the ledger of the plaintiff company also shows that the excess payment was made by defendants to plaintiff company which included the advance payment for the new orders from time to time. It is contended that payments were also given by the defendant in cash to the plaintiff's representative but same has not been deliberately considered or mentioned in the plaint. It is contended that the plaintiff company has harassed the defendant and his customers and sometimes the tyres supplied by the plaintiff company became unusable within one or two days of its sale and the same were returned by the customers and such tyres are also pending replacement by the plaintiff. It is further contended that the plaintiff company provided the discount coupon/cards to the defendants on obtaining the set target of selling their tyres and said cards were to be swiped in the shopping malls and other shopping places but whenever the said cards were swiped, the same was found not to be activated. It is further contended that the plaintiff company has usurped more than Rs. 45,000/- (Rupees Forty Five Thousand Only) of incentives given to the defendant for selling plaintiff's tyre. It is further contended that the plaintiff had entered into written agreement and promised to give the copy of the same to the CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 5 of 20 defendant but the same was not provided to the defendant despite several requests. It is contended that at the time of starting trade the plaintiff took some blank letter head of the defendant no.1 alongwith the signature and stamp. It has been contended by the defendant that entire payment towards the invoices annexed with the plaint has already been made by the defendant. The claim of the suit amount and the 18% interest has been denied by the defendant contending that no damage or loss has been suffered by the plaintiff company. The defendant has disputed receipt of the legal notice dated 21.10.2021 and has prayed for dismissal of the suit with heavy costs. The defendant has also prayed for the litigation costs of Rs. 1,00,000/- for contesting the case.
5. Replication to the defendant's written statement has been filed on behalf of plaintiff reiterating the averments made in the plaint and denying the allegations leveled by the defendant. The plaintiff reiterated that the defendant had never raised any issue regarding the quality of the goods supplied and now false and concocted story is being created by the defendant to mislead the Court. It is submitted that no objection was taken by the defendant at any point of time regarding the quality of the tyres supplied to him and no communication was made to the plaintiff in this regard. It is further submitted that the plaintiff is a very reputed tyre/manufacturing company and the policy of return and warranty of plaintiff's goods are well within the knowledge of the defendant but the defendant has never complained about the quality of the tyres supplied by the plaintiff. According to the plaintiff, Ms. Jyoti Rana, employee of the plaintiff company is duly authorized person and Ms. Jyotsna Aswal was also Authorized to represent the plaintiff company before any Court of law and also to delegate her powers to any other person vide CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 6 of 20 Board Resolution dated 18.03.2021 and that Ms. Jyoti was authorized to file the present suit vide letter of authority dated 20.10.2020 issued by Ms. Jyotsna Aswal, General Manager/HR/Legal. It is submitted that the suit is well within limitation and the same is as per the mandate of Commercial Courts Act.
6. From the pleadings of the parties, following issues were framed on 08.12.2022 :
1. Whether the plaintiff is entitled for recovery of Rs. 7,35,334/- as prayed for? OPP
2. Whether the plaintiff is entitled to the interest? If so, at what rate and for which period? OPP
3. Relief.
7. On behalf of the plaintiff two witnesses have been examined namely PW-1, Sh. Kamal Jhanwar and PW-2, Sh. Rakesh Gupta. On the other hand, the defendant has examined only one witness i.e. DW-1 Kashif Khan. Plaintiff's evidence was closed vide separate statement of ld. Counsel for plaintiff on 07.06.2023. Defendant's evidence was closed on 16.08.2023. The testimonies of the witnesses shall be considered during the discussion on the aforementioned issues.
8. Arguments have been adduced by Sh. R.K. Ruhil, ld. Counsel for plaintiff as well as Sh. Ankur Saini, ld. Counsel for defendant. I have carefully perused the entire case record. My issue-wise findings are as under:
ISSUE NO.1:
1. Whether the plaintiff is entitled for recovery of Rs. 7,35,334/- as prayed for? OPP
9. Law of Evidence provides the legal framework for an CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 7 of 20 orderly and reliable means of adjudicating a suit or proceeding between the parties. The Law of Evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The Code of Civil Procedure, 1908, The Code of Criminal Procedure, 1973, and The Indian Evidence Act, 1872, constitute the trinity of the principal procedural codes that govern the law of procedure as applied in the courts of law. The Law of Evidence lays down the ground rules for determining on whom the burden of proof will lie for proving the case in a suit or proceeding which one has set in motion, what facts may be considered as relevant for treating them as evidence and what facts may be proved and in what manner so as to ensure high probative value, who may be considered as competent witnesses to prove the facts and the modes of examining those witnesses. Evidence is the usual means of proving or disproving a fact or matter in issue. The law of evidence envisages the proof of facts by the parties by means of: (i) oral evidence - which means and includes all statements which the court permits or requires to be made before it by witnesses in relation to the facts in issue (ii) documentary evidence-is all documents produced for the inspection of the court, and (iii) material objects - such as guns, knives, etc., to which the oral evidence relates.
10. The rules relating to burden of proof are based upon certain practical considerations of convenience and reasonableness and also of policy. The rules relating to burden of proof are as under :
(a) S 101: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(b) S 102: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
(c) S 103: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 8 of 20 law that the proof of that fact shall lie on any particular person.
11. Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The dictum in law is as old as the hills i.e. one who avers must prove. The court has to examine as to whether the person whom the burden lies has been able to discharge its burden.
12. The onus to prove issue no.1 was upon the plaintiff. In order to prove this issue, the plaintiff has examined two witnesses namely PW-1 Kamal Jhanwar and PW-2 Rakesh Gupta. The plaintiff's first witness i.e. PW-1 Mr. Kamal Jhanwar of plaintiff's company has deposed on the same lines of plaintiff's pleadings and has categorically averred that the defendant had been purchasing tyres and allied products from the plaintiff/company on regular basis and the plaintiff had been satisfactorily supplying the said goods to the defendant. PW1 has proved the Board of Resolution dated 18.03.2021 Ex. PW1/1. He also proved copies of invoices Ex. PW1/2 (colly) and the Statement of Account Ex. PW1/3. PW1 has categorically averred that all the invoices raised upon the defendant were debited and all the payments made by the defendant were credited in the plaintiff's Books of Accounts and that as per their Statement of Account a sum of Rs. 7,35,334/- was outstanding and payable by the defendant. During his cross examination on 01.03.2023, the PW-1, Mr. Kamal Jhanwar has deposed that he is a Chartered Accountant and is working as Senior Manager, Finance and Account and that the Supply Chain team of plaintiff's company delivers the goods to the customers and generates invoices. He further deposed that on the basis of proof of delivery, the CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 9 of 20 outstanding gets certified against the customer and that the plaintiff's company was maintaining ledgers and books of accounts and transaction details of the defendant were being reflected in his account. PW1 also deposed that the plaintiff company files tax returns and its accounts are also properly audited. PW 1 even volunteered to say that all the books of accounts were considered by the auditors at the time of audit and the exact outstanding against the individual customer are reflected in the consolidated balance sheet filed in ROC. PW1, Mr. Kamal Jhanwar has also averred that no cash payment was ever taken by the representatives of the plaintiff company from the defendant and all the payments made by the defendant is reflected in their Statement of Account. On the other hand, the defendant's only witness i.e. DW1, Mr. Kashif Khan has averred in para 11 of his evidence affidavit Ex. DW1/A that the plaintiff and defendant used to do business on individual contract/order and the payment/invoice was sought after the delivery of tyres by the plaintiff company and sometimes advance payment were made by the defendant to the plaintiff company with respect to the orders. Similarly,the defendant has pleaded in its written statement dated 25.05.2022 that defective tyres were supplied by the plaintiff but no details i.e. the exact number of said tyres or their particulars such as batch number or other details has been mentioned in the entire written statement. It is vaguely pleaded by the defendant that defective tyres received from the plaintiff were sent by the defendant for replacement and the value of the said tyres were approximately Rs.4,50,000/- but neither the details of the said tyres nor the date or time of the said return is mentioned in the entire pleadings. The defendant, Mr. Kashif Khan DW-1 has also not given the said details in his entire CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 10 of 20 evidence affidavit, Ex. DW1/A. Significantly the DW1 in his cross-examination on 16.08.2023 has stated on oath, "We have never received any complaint in writing from any buyer regarding defective tyres. We had never made any written complaint to the plaintiff company regarding defective tyres. There was no warrantee card issued by the plaintiff company for their tyres. It is wrong to suggest that warrantee cards are issued for every tyre. It is also correct that every tyre has a unique serial number. It is correct that I have not filed any bills regarding sale of plaintiff's tyres which were returned by the customers as defective. It is correct that there is no list of tyres found defective by us. Vol. The same is mentioned in the register maintained by us. It is correct that the said register has not been filed on record. It is correct that there is no document filed on record regarding receipt of any defective tyre by the plaintiff company." The defendant/DW1 has also deposed during his cross examination on 16.08.2023 that he is also dealing in sale of tyres manufactured by other companies besides the plaintiff M/s Yokohama India Pvt Ltd. Thus the defendant, has categorically admitted during his cross examination that he had procured tyres from the plaintiff company and that he has never received any complaints from any buyer regarding the defective tyres. Significantly, the defendant also admits during his testimony that he has never made any written complaint to the plaintiff regarding defective tyres. DW1 has also admitted that he has not filed any bill regarding sale of plaintiff's tyres which were returned by his customer as defective. The defendant/DW1 has also deposed that list of defective tyres is mentioned in the register maintained by them but said register has not been produced or filed on record. There is no document filed on record CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 11 of 20 regarding receipts of any defective tyres by the plaintiff and the defendant has also not filed his Statement of Account although DW1 admitted during his cross examination on 16.08.2023 that the Statement of Account is maintained by his Chartered Accountant. The ld. Counsel for the defendant has argued that the account maintained by the plaintiff was not a mutual, open or running account as the defendant used to pay against the each invoices and the each order/invoice constituted an independent contract. However, no statement of its account,payment details or ledger account has been filed or proved on record by the defendant. No reason or explanation is forthcoming from the defendant's side as to why the Statement of Account maintained by the defendant,payment documents or the register containing the list of defective tyres has not been filed or proved on record by the defendant to establish its claim that the payments of the invoices has already been made by the defendant. DW1 in para 11 has claimed that sometimes advance payments were made by the defendant with respect to the orders made and that the plaintiff has deliberately not shown all the payments made by the defendant. The Books of Accounts of the defendant could have been easily produced by the defendant and the entries therein could have substantiated the defendant's claim of advance payments or payments against the individual invoices. However, the said Books of Accounts have been deliberately withheld by the defendant from this Court. The said conduct of the defendant also belies the logic of any ordinarily reasonable prudent person. Section 114 (e) of Indian Evidence Act Section 114 Illustration
(g) of Indian Evidence Act provides that the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. The objections of the defendant's CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 12 of 20 counsel to marking of the documents at the time of examination in chief before the Ld. Local Commissioner on 01.03.2023 are also devoid of merits as the original of the Board of Resolution dated 18.03.2021 as well as invoices Ex. PW1/2 were seen and returned by the Ld. Local Commissioner at the time of recording testimony. PW1 Kamal Jhanwar has also deposed during his cross examination on 28.04.2023 that he was authorized by Mr. Ritesh Bhansali, Chief Financial Officer on 02.08.2022 vide Authority Letter Ex. PW1/DX. PW2, Mr. Rakesh Gupta has also proved on record Authority Letter dated 11.05.2022 Ex. PW2/1 and Authority Letter dated 20.10.2020, Ex. PW2/2 as well as the Board of Resolution dated 21.01.2020 passed by the plaintiff's company in favour of Ms. Jyotsa Aswal. In view of the testimony of PW-2 and the document Ex. PW2/1 to Ex. PW2/3, this Court does not find any merits in the contentions of the Ld. Counsel for the defendant that plaintiff's suit is not properly instituted. Similarly, the invoices proved on record, Ex.PW1/2 (colly) are pertaining to the year 2019-2020 and there is an acknowledgement of the defendant dated 06.02.2020 on the invoice dated 30.01.2020. The suit has been filed by the plaintiff on 26.02.2022. This Court does not find any merit in the contention of the defendant that the plaintiff's claim is barred by limitation. Further, the counsel for the defendant had suggested to the PW1 that fake entries of purchase have been incorporated in the customer ledger by the plaintiff in Ex.PW1/3 but no such entries were neither shown/pointed to the said witness/PW1 not disclosed to this court. The defendant, DW1, has also not detailed about any such entry in his pleadings or testimony before this court. Order VIII Rule 4 of CPC clearly provides that where a defendant denies an allegation of fact in the plaint, he must not CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 13 of 20 do so evasively, but answer the point of substance. The defendant does not dispute commercial transaction with the plaintiff but claims to have received defective tyres which have not been replaced by the plaintiff. However the defendant has miserable failed to establish on record that it had given/returned any defective Tyres to the plaintiff. The printout of the Screenshots of the defendant's mobile, Ex DW1/1 and Discount Cards, Ex DW1/4 are also of no help to the defendant as DW1 himself admitted during his cross-examination on 16.8.2023 that no phone number is reflected in DW1/1. He volunteered to say that only name apperars in the chat if number is saved but the said person i.e Mr Vivek with whom the defendant had chatted has neither been examined nor got summoned by the defendant. The defendant claims that tyres shown in Chat, Ex DW1/1 were supplied by the plaintiff but he could not give any date/year of the sale of the said tyres and that the name of the plaintiff company is not mentioned in the discount cards, Ex DW1/4. The Whatsapp chat/screenshots, Ex DW1/1 as well as the emails printout, Ex. DW-1/2 being relied by the defendant are computer outputs of electronic records. It is settled law that an electronic record is required to be proved as per section 65 B of Evidence Act. In 'Anvar P.V. Versus P.K. Basheer and others' Civil Appeal No. 4226 of 2012 (Judgment dated 18.09.2014), a three-judge bench of Hon'ble Supreme Court has dealt with the issue of admissibility of electronic records and mode of proof of a documentary evidence in the form of electronic record. It has noted as follows:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 14 of 20 secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents;
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
14. Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 15 of 20
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence. ........
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65 B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
13. In a reference judgment in 'Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal', Civil Appeal Nos. 20825-20826 of 2017 (Judgment dated 14.07.2020), Hon'ble Supreme Court has examined and interpreted section 65 B of Indian Evidence Act to hold that Anvar P.V. (supra) holds the ground in the field of electronic evidence. It has been noted as follows:
"72. The reference is thus answered by stating that:
CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 16 of 20
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly.
Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65 B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65 B (1), together with the requisite certificate under Section 65B (4). The last sentence in Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
14. Thus, any document which is an electronic record can not be relied upon unless it is proved in accordance with section 65 B of Evidence Act. In the instant case, the records of WhatsApp Chat, Ex DW1/1 have been taken from a device which is not a secured device. As already noted above, the WhatsApp chat were downloaded from a computer system which has not been identified by the defendant. Thus, the certificate Ex. DW-1/3 given by the defendant has no value and can not be relied upon. Significantly, Order XI Rule 6 (3) of the Code of Civil Procedure (as amended and applicable in commercial cases) regarding electronic records mandates the declaration on oath to be filed by a party specifying (a) the parties to such Electronic Record; (b) the manner in which such electronic record was produced and by whom; (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time when the electronic CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 17 of 20 record was printed; (e) in case of e-mail ids, details of ownership, custody and access to such e-mail ids; (f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource; (g) deponents knowledge of contents and correctness of contents; (h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;(i) that the printout or copy furnished was taken from the original computer or computer resource.
15. However, majority of above said information required to be specified in terms of Order XI Rule 6 (3) of CPC elicited above, is not even contained in the affidavit (certificate) of defendant, Ex DW-1/3 filed under Section 65B of the Indian Evidence Act which only in vague terms is containing an endeavor to put forth of compliance of conditions of Order XI Rule 6 (3) of CPC. For want of above said requisite specified information compliant of Order XI Rule 6 (3) (a) to (i) CPC, the electronic record/Whatsapp chat/e-mails relied by the defendant has no evidentiary value. On the other hand, the plaintiff has proved on record the invoices Ex PW1/2 (colly) and the Statement of Account Ex PW1/3. Each of the said invoice was duly stamped and signed on behalf of defendant/M/s. Indian Tyre House, the proprietorship firm of Mr. Kashif Khan. In the considered opinion of this Court and on the basis of the evidence brought on record and testimonies of the witnesses, the claim of the plaintiff for the suit amount Rs.7,35,334/- (Rupees Seven Lakhs Thirty Five Thousand Three Hundred Thirty Fourt Only) CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 18 of 20 only stands proved on preponderance of probabilities and the defendant is liable to pay the same. Accordingly, the issue no.1 is decided in favour of plaintiff and against the defendant.
ISSUE NO.2:
2. Whether the plaintiff is entitled to the interest? If so, at what rate and for which period? OPP
16. The plaintiff has claimed interest @ 18% on the outstanding dues of the defendant. Proviso 2 Section 34 of the Code of Civil Procedure, as applicable to the commercial transactions, postulates that rate of interest in excess of 6% per annum on the principal amount can be awarded but the same shall not exceed the rate of interest at which money is lent or advanced by the nationalized bank in relation to the commercial transaction if no contractual rate is agreed between the parties. In view of the nature of the commercial transaction involved in the matter and the prevailing banking rates of interest, in the considered opinion of this Court, a pendente lite and future interest @ 12% p.a. on the suit amount would meet the ends of justice. Accordingly, the defendant is liable to pay to the plaintiff a pendente lite and future interest @ 12% p.a. on the suit amount of Rs.7,35,334/- (Rupees Seven Lakh Thirty Five Thousand Three Hundred Thirty Four Only) from the date of filing of the suit till its realization. Accordingly, the issue no.2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3 :
Relief.
17. In view of the findings on the aforesaid issues, the plaintiff is held to be entitled for a recovery of a sum of Rs. 7,35,334/- (Rupees Seven Lakh Thirty Five Thousand Three Hundred Thirty CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 19 of 20 Four Only) from the defendant alongwith interest @ 12% p.a. on the said amount from the date of institution of the suit till its realization. The plaintiff has also claimed the costs of the suit. Keeping in view Section 35 and 35A of CPC and particularly when the defendant itself is responsible for the litigation, it is held to be liable to bear the costs to the extent of court fees etc. The plaintiff is directed to file certificate regarding charges/fee paid by it to the Ld. Local Commissioner appointed for recording evidence and the said amount shall also be recovered from the defendant as part of the costs allowed in favour of plaintiff. Accordingly, the plaintiff is entitled for the costs of litigation. The advocate fee is assessed to be Rs.50,000/- only and same is hereby awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
18. File be consigned to record room after necessary compliance.
Announced in the open Court PREM by PREM
Digitally signed
KUMAR
on 25th Day of September 2023 KUMAR BARTHWAL
BARTHWAL Date: 2023.09.25
17:01:27 +0530
(Prem Kumar Barthwal)
District Judge (Commercial Courts)-01,
South District/Saket Courts,
New Delhi.
CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 20 of 20 CS (COMM)161/22 M/S YOKOHAMA INDIA PVT LIMITED Vs. M/S INDIAN TYRE HOUSE 25.09.2023 Present : Sh. Rahul Kasana, ld. Counsel for the plaintiff.
Sh. Vinay Kumar, proxy counsel for the defendant.
Vide separate judgment dictated, typed and announced in the open court today, Rs. 7,35,334/- (Rupees Seven Lakh Thirty Five Thousand Three Hundred Thirty Four Only) alongwith interest in the manner indicated therein. Decree-sheet be prepared accordingly. File be consigned to record room after necessary compliance.
(Prem Kumar Barthwal) District Judge (Commercial Court)-01 (South)/Saket Courts, New Delhi/25.09.2023 CS (Comm) No. 161/22 M/s. Yokohama India Pvt. Ltd. Vs. M/s. Indian Tyre House Page No.: 21 of 20