Delhi District Court
Shri Mohit Arora S/O Sh. Shashi Bhushan vs Sh. Vineet Sehgal on 20 August, 2020
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
DISTRICT JUDGE (COMMERCIAL COURT01),
SOUTHEAST, SAKET : DELHI
CS/Comm no. 36 of 2018
Shri Mohit Arora S/o Sh. Shashi Bhushan
Proprietor of M/s Stage N Design
having its office at 150, Meher Chand Market
Lodhi Road, New Delhi110003
.......Plaintiff
Versus
1. Sh. Vineet Sehgal
R/o H. no. C126, First Floor,
Kilokari Village, Ashram, New Delhi 110014.
Also at :
Sehgal Electric Works,
130 Ground Floor & Basement,
Kilokari Village Ashra, New Delhi110014.
2. Sh. Varun Chaudhary.
R/o A1/25, Lajpat NagarII,
New Delhi24.
3. M/s Stage Art Event & Wedding Planning.
Having its office at B3, Ground Floor,
Near Krishna Market, Lajpat NagarI,
New Delhi110024.
(through defendant no. 1&2)
......Defendants.
Date of Institution : 16.11.2018
Date of order Reserved on : 05.08.2020
Date of Decision : 20.08.2020
(Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18)
(RAJ KUMAR CHAUHAN)
District Judge (Commercial Court01)
SouthEast, Saket, Delhi:20.08.2020 Page no..........1
Suit for recovery of Rs. 6,57,225/
(Proceedings through Video Conferencing)
JUDGMENT
1. In this suit for recovery, the plaintiff M/s. Stage n Design alleged that the, Defendant Nos. 1 & 2 approached the plaintiff at his office on 28.01.2016 and informed that they are running their business under the name and style of "Stage Art Event & Wedding Planning" Defendant No. 3 and popularly known as M/s. Stage Art Events" for the purposes of carrying on their business. In pursuance to their representations made to the Plaintiff, Defendant Nos. 1& 2 told the Plaintiff that they would be requiring the services of the Plaintiff for organizing the events at New Friends Colony, New Delhi on 1st and 2nd February, 2016 and further on 12th February, 2016 at Shiv Shakti Mandir, Kilokari, near Ashram, New Delhi respectively.
2. On 2 February, 3 February and 4 February, 2016, the Defendant Nos. 1& 2 transferred the amount of RS 1,50,000/ i.e (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........2 Rs. 50,000 for each services to be availed by defendants from the plaintiff on 2nd, 3rd and 4th February 2016. As detailed at page no. 5 of the plaint , the said amount of Rs.1,50,000/ was deposited towards advance payment for providing the requisite services to the defendants for organizing their events. It was assured by the defendant that the remaining balance amount would be cleared after the events were over.
3. Plaintiff provided the required services to the satisfaction of the defendant on 1st and 2nd February, 2016 at New Friends Colony and also on 12th February,2016 at Shiv Shakti Mandir, Kilokari, near Ashram, New Delhi. It was duly appreciated and commended by the defendant no.1 &2 for the successful and graceful end of the events. Thereafter, plaintiff raised two bills i.e bill no. 635 and 638 dated 30.03.2016 for an amount of Rs. 5,15,250/ and Rs. 2,91,975/ respectively and sent the same to the defendants for payment at the office of defendant no.3. After deducting the amount of advance payment of Rs. 1,50,000/ defendant was bound to make the balance payment of Rs. 6,57,225/. Defendants did not make the payment of balance (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........3 amount despite assurance that the same would be cleared within a period of 23 months till August 2016. On various occasions there were heated arguments between the plaintiff and the defendant no. 1&2 and even Whatsapp messages were exchanged between plaintiff and defendant no. 1&2 but payment was not made. In the whatsapp messages both the defendant no. 1&2 accepted their liability towards the plaintiff firm for the services so availed. Copy of audio recording is filed by way of compact Disc (CD). Since payment was not made, plaintiff issued a legal notice dated 04.08.2018 through counsel and was sent through speed post to the defendants for payment of Rs. 6,57,225/. Legal notice was duly acknowledged by the defendant no. 1&2 when sent on their mobile number through whatsapp. After receiving the said notice certain whatsapp chats/messages were exchanged in between defendant no.1 and the plaintiff and some abusive and unpleasant utterances were made by the defendant no.1 to the plaintiff. Despite service of legal notice payment has not been made hence it is prayed that suit of the plaintiff be decreed for a sum of Rs. 6,57,225/ alongwith pendentelite and future interest (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........4 @ 12%p.a.
4. In their written statement defendants have taken preliminary objection stating that suit has been filed without cause of action ; no such alleged service received by the defendants on 1 st and 2nd February 2016 and further on 12th February 2016 and as such no amount can be recovered from the defendant for the said service. There is nothing on record to show that defendants have taken any benefit out of the above services allegedly provided by the plaintiff and plaintiff even failed to give details of the service provided by the defendants. It is further alleged that plaintiff did not provide quality tables and chairs as promised by the plaintiff and despite poor quality of the chairs and tables provided by the plaintiff, the defendant paid all the due payment as demanded by the plaintiff. It is further stated that in the absence of any legal agreement or contract, the present dispute is not a commercial dispute and therefore is not maintainable under Commercial Court Act.
5. On merits, all averments in the plaint has been controverted and denied. It is asserted that payment of Rs. 1,50,000/ was full (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........5 and final payment for supply of table and chairs by the plaintiff for the events on 1st and 2nd February 2016. Thereafter, defendants have never taken any kind of service from the plaintiff.
6. In replication, plaintiff reiterated the stand taken in the plaint while controverted and denied all averments made in the written statement. It is further alleged that plaintiff had given all the details of the service provided to the defendants as is evident from invoice/bill annexureB which were handed over to the defendants on 30.03.2016 when defendant visited to the office of the plaintiff to enquire about the details of the service provided by the plaintiff.
7. On 20.09.2019 from the pleadings of the parties following issues were framed which are as under: i. Whether the plaintiff is entitled for the suit claim?OPP ii. Whether the plaintiff is entitled for the interest, if so, at what rate, for which period and on what amount?OPP iii. Relief if any.
(Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........6
8. Shri Manish Kumar Advocate, Enrollment no. D 2907/11 Saket Court, was appointed as Court Commissioner to record evidence of the parties. On 20.11.2019 Local Commissioner filed his report stating that plaintiff's evidence has already been recorded and defendants' evidence by one witness was required to be recorded. Ld Local Commissioner was directed to conclude the defendants' evidence and file report on the next date of hearing and matter was adjourned for 10.01.2020. Ld Local Commissioner filed report on 09.01.2020.
9. Parties were directed to file their written brief submissions.
Written arguments were filed by the plaintiff on 25.01.2020 and written arguments were filed by the defendants on 27.01.2020. Oral arguments were heard through Video conferencing on 21.07.2020. Parties sought adjournment to file additional written brief submissions. Additional written submissions were filed on behalf of plaintiff on 07.08.2020 and defendants on 10.08.2020.
10. I have perused the written arguments as well as considered oral arguments.
My issuewise findings is as under: (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........7 Issue no. 1 "Whether the plaintiff is entitled for the suit claim?OPP"
11. The onus of this issue is upon the plaintiff. Plaintiff has examined PW1 Sh. Mohit Arora by filing affidavit in evidence as Ex. PW1/A. He has deposed that defendant no. 1&2 approached him at his office 150, Meher Chand Market, Lodhi Road New Delhi on 28.01.2016 and asked him about requirement of his services for organizing events at New Friends Colony, New Delhi on 1st and 2nd February 2016 and at Shiv Shakti Mandir Kilokari, new Ashram, New Delhi on 12th February 2016. Defendant no. 1&2 transferred advance payment of Rs. 1,50,000/ through NEFT in the account of plaintiff's proprietorship firm on 02.02.2016, 03.02.2016 and 04.02.2016 as reflected in para no. 6.
12. It is further testified that the said amount of Rs. 1,50,000/ was advance payment of providing requisite services required by the defendants for organizing their events. Defendants further assured the deponent that the balance amount accruing on account of above events would be cleared after the events were over. Statement of bank account of plaintiff's firm is proved as (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........8 annexureA/Ex. PW1/1. It is further deposed that on assurance and promise of defendant no. 1 &2 plaintiff provided the required services to the satisfaction of the defendants on fixed dates of events and service of the plaintiff were duly appreciated by the defendants. It is further deposed that thereafter plaintiff raised two bills vide bill no. 635 and 638 dated 30.03.2016 for an amount of Rs, 5,12,250/ and Rs. 2,91,975 respectively. The said bills were sent to the defendant no. 1&2 for payment at the office of the defendant no. 3. The said bills has been proved as MarkB (coly.). He further deposed that after deducting Rs. 1,50,000/ defendants were liable to pay Rs.6,57,225/. The defendant did not make payment of the said balance amount despite their promises and repeated requests of the plaintiff telephonically as well as personally. He further deposed that during that period there were heated arguments between PW1 and defendant no. 1&2 and various whatsapp chat were exchanged between them. The conversation between the PW1 and defendant no. 1&2 was recorded in CD annexed as annexureD/Ex PW1/3. In their whatsapp both the defendants have accepted their liability for the (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........9 due amount. Plaintiff issued a legal notice dated 04.08.2018 through counsel as Ex PW1/4. On receiving said legal notice certain whatsapp messages exchanged between them and abusive utterances were made by the defendant no. 1. The said abusive utterances on record are proved as Ex. PW1/5. It is therefore deposed that plaintiff is entitled to Rs.6,57,225 alongwith pendentelite and future interest @ 12% p.a.
13. In his crossexamination PW1 testified that he did not have any proof that defendant no. 1&2 approached him at his office at Lodhi Road. Defendant no.1 has called him at his phone stating that he wants to avail the service of the plaintiff. Defendants have given visiting card of their business. It is further deposed in cross examination that while dealing with clients he did not require or sign any agreement /document for providing them services and there was no written agreement between him and the defendants for the events on 1st and 2nd February 2016 and further on 12 th February 2016. During the course of business he used to take advance payment from his clients before providing any kind of service to his clients. He further deposed in crossexamination (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........10 that he did not have any proof of payment of Rs. 1,50,000/ was received in his account as advance payment. It is further deposed that satisfaction and appreciation by the defendants was done verbally. PW1 further admitted that there was no receiving or acknowledgment of the defendants on two bills markB (coly). He further admitted that bill book has not been placed before the court. In response to the question put to the PW1 he has deposed that "It is correct that above said bills were raised after the completion of work. It is correct that on 30.03.2016, I have delivered the above said bills to the defendants. I have not mentioned anywhere in my bills marked as markB (coly) that I have received any advance payment of Rs.1,50,000/. It is correct that for every event I have provided different style of decoration and design. It is correct that there is no acceptance/acknowledgment of the due payment on behalf of defendant in whatsapp chat Ex.PW1/5. It is correct that there are no date mentioned on whatsapp chat Ex. PW1/5. It is correct that the defendant no.1 Vineet has two phone numbers. It is correct that whatsapp chat Ex. PW1/5 does not contain any mobile number of defendant no. 1 (Vineet). (vol:
(Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........11 whenever we save a number of whatsapp, the number does not appear on the screen).
14. PW1 further deposed that he has not filed any valid proof of legal notice sent by him through whatsapp. Legal notice Ex. PW1/4 was printout from his mobile phone and was not hard copy of the legal notice sent by his counsel because legal notice was sent by his previous counsel who did not supply the hard copy and sent him a soft copy on his mobile. He did not file certificate u/s 65 of Indian Evidence Act in support of legal notice Ex. PW1/4.
15. Ld Local Commissioner has left the objection by defendants' open regarding Ex. PW1/4. Remaining crossexamination of PW1 was carried out on 18.11.2019.
16. In his further crossexamination PW1 has admitted that the conversation recorded in CD Ex. PW1/3 does not reveal anything about the service provided by him to the defendant. He further deposed that there is no documentary proof for imposing interest on the due payment as same was decided orally. He further admitted that he has no documentary proof that he demanded and (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........12 requested for the due amount.
17. Sh. Varun Chaudhary has been examined on behalf of defendants as DW2/1 by filing affidavit Ex. DW2/1. It is deposed that suit for recovery of the money is false as no such alleged service/events has taken place and defendant has not received any services for the alleged events; there is no documentary evidence to show that defendants had received alleged services from the plaintiff. It is further stated in para4 that plaintiff was required to provide quality tables and chairs for the event on 1st and 2nd February 2016 because vendor who used to provide catering equipments including tables and chairs was not well. Plaintiff did not provide quality table and chairs as promised by him and despite poor quality of table and chairs all the payment was made as demanded by the plaintiff.
18. In his crossexamination by Ld counsel for the plaintiff , DW2 stated that he is partner of M/s Stage Art and events. He further deposed that he and his partner Sh. Vineet had approached the plaintiff for availing services of some table and chair and one event was organized on 1st February 2016 and another took place (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........13 on 2nd February 2016 at New Friends Colony, New Delhi. Regarding the contents of para3 of the affidavit alleing no such alleged/event has taken place and that he has not received any services from the plaintiff; it is clarified that said lines might have been mentioned in his affidavit as a clerical mistake because events happened on 1st and 2nd February 2016 and further on 12th February 2016 and an amount of Rs. 1, 50,000/ was paid for availing the services of table and chairs. He further admitted that he did not have any proof to show that amount of Rs. 1, 50,000/ was full and final payment for the services offered by the plaintiff.
19. In his written arguments, it has been argued on behalf of defendant that admittedly there is no legal agreement between parties for the events on 1st February 2016, 2nd February 2016 and 12nd February 2016 and he has admitted in his crossexamination as such stating that plaintiff do not have any proof that defendants required their service for the events on the above dates. It is further argued that defendant has availed the service on 1 st February 2016, 2nd February 2016 and 12nd February 2016 for which lumpsum amount of Rs.1,50,000/ was fixed mutually and (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........14 same was paid to the plaintiff and as such there is no balance was due to be payable for the purpose of service availed by the defendant. It is further argued that PW1 categorically admitted in crossexamination that "I used to charge lumpsum amount for service provided to my client". It is further argued that plaintiff has also failed to produce any document to show that there remains amount of Rs. 6,57,225/ due upon the defendants. It is argued that markB (coly.) are mere photocopies having no receiving/acknowledgement from the defendants. It is further submitted in the written arguments that photocopy of the documents cannot be considered for evidence unless same is considered as secondary evidence. It is further pointed out that alleged two bills does not mention total amount of Rs. 8,07,225/. It is further argued that the alleged documents/copy of bills mark B (coly.) does not mention having received f Rs. 1,50,000/ as advance. It is further argued that plaintiff even failed to prove the genuineness and authenticity of the said bills by examining any competent witness because it is not clarified as to who has prepared those invoices and the bills book in original has not been (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........15 produced which raises a doubt on genuineness and correctness of the bill markB. It is further argued that plaintiff further failed to establish by sufficient oral as well as documentary evidence that a sum of Rs. 1,50,000/ was paid as advance and not as full and final payment of the services rendered.
20. Regarding whatsapp chat allegedly relied upon by the plaintiff, it is argued that not a single chat reveals about the payment as it contains heated arguments between plaintiff and defendant no.1 and present suit has been filed just to harass the defendants. It is further argued that plaintiff even failed to prove that the legal notice Ex. PW1/4 was ever sent to the defendants because in crossexamination of the plaintiff, it is admitted that his counsel had not supplied the original legal notice and it is copy of the legal notice. It is further admitted in crossexamination of PW1 that legal notice Ex. PW1/4 was provided from his phone and it was not true copy of the legal notice sent by his counsel . It was categorically admitted in crossexamination of PW1 that he did not have any proof that above said legal notice was sent to the defendants.
(Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........16
21. In additional written arguments counsel for the defendants has relied upon the case of Hon'ble Supreme Court of India in "U. Seer Vs. U. Sriniwas, 2013 (2) SCC 114 stating that it has been held by the Hon'ble Apex Court that photocopies are inadmissible in evidence and even mere admission of such photocopy shall not amount to proof of the documents in accordance with law. It is further argued that burden of proving documentary evidence by proving documents in original or by way of secondary evidence with the permission of the court was duty of the plaintiff who has miserably failed to discharge the onus upon him. It is therefore argued that plaintiff has failed to prove its case for recovery of any balance amount and whatever amount was to be paid for rendering service has already been paid.
22. In his written arguments plaintiff has reiterated the same facts as alleged in evidence. In para no. 6 of the written arguments, it is stated that plaintiff has raised two bills vide bill no. 635 and 638 for an amount of Rs. 5,15,250/ and Rs. 2,21,975 and total to Rs. 8,07,225/. After deducting Rs. 1,50,000/ a sum of Rs. 6,57,225/ was due which was not paid by the defendants (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........17 despite repeated request till August, 2016. It is further argued that defendant has not filed affidavit of admission/denial of the documents about documents filed by the plaintiff which was mandatory in this commercial suit therefore, documents relied upon by the plaintiff are deemed to be admitted. It is further argued that PW1 has proved his bank account statement Ex.PW1/1 which proved advance payment of Rs. 1,50,000/ by the defendants for services taken from the plaintiff. Plaintiff has further relied upon, during arguments, on the two bills markB (coly.). It is further argued that DW2 in his crossexamination has admitted that he and his partner Sh. Vineet Arora approached the plaintiff for service of some table and chairs. He further admitted that one event was organized on 01.02.2016 and another was on 02.02.2016 at New Friends Colony, New Delhi. In additional written arguments of the plaintiff, it is argued that present suit is maintainable as commercial suit as defined under section 2 (c) of the Commercial Court Act because there is no requirement for the agreement for service to be written or valid agreement can be either in written or oral as per Indian Contract Act.
(Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........18
23. Regarding receiving of legal notice, it is argued that that defendant no. 2 as DW1 admitted the service of legal notice dated 04.08.2018. Ld counsel for the plaintiff put a question in this regard and the reply of DW1 is as under: "Question: I put it to you that after receiving the legal notice from the plaintiff you did not reply for the same . What do you have to say?
DW1 replied : I replied through my advocate. Again said I only refer the legal notice sent by the plaintiff to my advocate but I do not know that my advocate sent any reply for the same. "
24. The above deposition of the DW2/1 as per arguments of plaintiff, is a clearcut admission of contents of the legal notice.
However, it is to be noted that in above crossexamination legal notice was never shown to the witness and reply of the witness/DW2/1 cannot be stated to be categorical reply so as to conclude that he has admitted the contents of the legal notice or receiving of the legal notice.
25. Regarding the bills markB relied upon by the plaintiff. It is argued that defendant have neither denied existence or receiving of the said two bills in their written statement, nor they have filed (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........19 affidavit of admission/denial which was mandatory, hence defendant is deemed to have been admitted existence and receiving of the bills markB. It is further argued that in his cross examination of PW1, plaintiff was shown markB (two bills) and was asked question by the counsel for the plaintiff to which plaintiff replied as under: " It is correct that there are no receiving or acknowledgements of defendants on the abovesaid bills markB (coly.). Neither of the bills contains any terms and conditions. I have not placed the bill book before this court. It is correct that the above said bills were raised after the completion of the work. It is correct that on 30.03.2016 I have delivered the above said bills to the defendants. "
26. It is further argued that plaintiff could not file bill book of year 201516 because it was not traceable. It is further submitted that plaintiff has traced the bill book 201516 which contains carbon copy of the bills markB (coly.). It is further submitted that scanned copy of the bills are attached Online because physical filing in the court has been suspended.
27. The scanned copy of the carbon copy of the bills in place of original bill book and also at the time of the filing additional (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........20 written arguments cannot be considered because it is incumbent upon the plaintiff to prove markB (Coly) as per law. Photocopy of the documents is not a document in the eyes of law. It is not the case of the plaintiff that they were relying upon the photocopies of two bills markB (coly) as secondary evidence as no steps have been taken by the plaintiff in that regard. In case plaintiff has succeeded in tracing the bill book for relevant period pertaining to the markB (coly.), what prevented him from leading secondary evidence to prove the bill markB (coly.) in accordance with law.
28. Ld counsel for the plaintiff during oral arguments highly relied upon the crossexamination of PW1 wherein it is stated that defendant counsel themselves have put question to the PW1 regarding existence of markB (copy) and in reply PW1 has clearly stated that above said bills were raised after completion of work and on 30.03.2016 and he had delivered the above said bills to the defendants.
29. A question arises whether this statement of PW1 in his crossexamination on behalf of defendant can be considered as proof of markB (coly), as per Indian Evidence Act,1872. Ld (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........21 counsel for the defendant relied upon the case of Hon. Apex Court in case U.Sree Vs .U. Srinivas (Supra) and also case of P.D.Verma and Co. Vs Laxmi Builders RFA359/2005 dated 29.10.2014. Hon'ble Apex Court in case U.Sree Vs .U. Srinivas (Supra) was pleased to hold as under:
17. Recently, in H. Siddiqui (Dead) by Lrs. v. A. Ramalingam[13], while dealing with Section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the nonproduction of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
30. Section 61, 62, 64 & 65 of Indian Evidence Act,1872 lays down as under: i. Section 61. Proof of contents of documents.--The contents (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........22 of documents may be proved either by primary or by secondary evidence.
ii. Section 62. Primary evidence.--Primary evidence means the document itself produced for the inspection of the Court. Explanation 1.--Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.--Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
iii. Section 64. Proof of documents by primary evidence.--
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
iv. Section 65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........23 writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
31. It is not the case of the plaintiff that the markB(coly.) has tobe considered as secondary evidence. Moreover, no circumstances has been alleged or established by the plaintiff to consider markB(coly.) as secondary evidence. Admittedly, the (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........24 original bills of markB has not been produced for inspection of the court. The plaintiff has even not produced the original bill book stating that same was lost and no witness has been examined as to how and in what circumstances it was lost and after its loss, the plaintiff has failed to take steps for leading secondary evidence of the same. The contentions raised on behalf of defendants with regard to failure of the plaintiff to prove markB(coly.) as per Indian Evidence Act hold water and found to be legally justified. It was further argued on behalf of the defendants that burden of proof with respect to availing of the services and a sum of Rs.1,50,000/ being only an advance payment and not full and final payment was upon the plaintiff. In that case Plaintiff has relied upon the case of Hon'ble High Court of Delhi in P.D.Verma and Co. Vs Laxmi Builders RFA359/2005 dated 29.10.2014, wherein Hon'ble court in para9 was pleased to hold as under:
9. .........It is trite law that burden to prove a fact lies on such person, who alleges the same. Accordingly, burden to prove the facts, as alleged in the plaint, heavily rests on the appellant. Plaintiff cannot rely on the weakness of defence of the defendant and has to stand on his own legs. Plaintiff is under legal obligation to lead cogent evidence to substantiate the pleas taken in the plaint to prove the case as set in the plaint.In Rangammal vs. (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........25 Kuppuswami and Anr. AIR 2011 SC 2344, Supreme Court has held thus: "Section 101 of the Indian Evidence Act, 1872 defines 'burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party."
32. Since plaintiff has brought a case that at the request of defendants he has supplied chairs and table for three days and for said services defendants were liable to make payment of Rs.8,07,225/, it was incumbent upon the plaintiff to discharge the burden of proof of the said facts in issue. Admittedly, no proof of rendering such services has been placed on record by the plaintiff. There is no documentary evidence in that regard. It was argued on behalf of plaintiff that in order to prove that Rs. 1,50,000/ was advance payment, the Plaintiff has proved the statement of bank Account markA. On perusal of markA also Ex. PW1/1 there is a (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........26 credit entry in the account of the plaintiff of Rs. 50,000/ each on 2nd , 3rd and 4th February 2016 respectively. Nothing can be concluded from those entries if the said payments were received only as advance for the service rendered by the plaintiff to the defendants.
33. PW1 in his crossexamination has admitted that during the course of business, he used to take advance payment from his clients before providing any kind of services to his clients. He used to charge lumpsum amount for the services provided to his client. He further admitted that he did not have any proof that payment of Rs. 1,50,000/ received in his account, was given to him as advance payment. He further admitted that he has not mentioned anywhere in his bills markB (coly.) that he had received any advance payment of Rs. 1,50,000/.
34. Thus, above discussion makes it crystal clear that plaintiff has failed to prove the material facts in issue as it has failed to prove that a sum of Rs. 1,50,000/ was received by him only as an advance payment and not full and final payment for the services rendered to the defendant. Plaintiff has further failed to prove that (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........27 markB (coly.) are legally and validly raised bills for the services rendered by the plaintiff to the defendants. The said documents has not been proved as per Indian Evidence Act, therefore can not be considered as admissible evidence on behalf of plaintiff to prove the amount mentioned therein. Admittedly there was no agreement in writing and terms and conditions of the agreement between the parties are not known to the court. The alleged invoices raised i.e markB (coly.) also does not bear any terms and conditions and for want of having been proved as per Indian evidence Act the same cannot be considered as admissible evidence. It has been admitted in crossexamination by PW1 that there is no proof to show that the sum of Rs. 1,50,000/ was received as advance payment from the defendants. In view of the law laid down by the Hon'ble Apex Court in case U.Sree Vs U.Srinivas (Supra), plaintiff has failed to prove the documentary evidence as per Indian Evidence Act and mark B (coly) cannot be considered even as secondary evidence for the reasons mentioned above. Plaintiff has thus failed to discharge the onus of the issue no.1 and the same is accordingly decided in favour of defendants (Mohit Arora Vs Vineet Sehgal, CS(comm) no. 36/18) (RAJ KUMAR CHAUHAN) District Judge (Commercial Court01) SouthEast, Saket, Delhi:20.08.2020 Page no..........28 and against the plaintiff.
Issue no.2 "Whether the plaintiff is entitled for the interest, if so, at what rate, for which period and on what amount?OPP"
35. Since issue no.1 regarding claim of the suit of the plaintiff has been decided against the plaintiff and in favour of defendant. Plaintiff is therefore not entitled to any relief qua issue no.2. Same is accordingly decided against the plaintiff. Relief
36. In view of the findings on issues framed in this case, suit of the plaintiff is dismissed. Parties are left to bear their own costs. A decree sheet be drawn accordingly. File be consigned to Record room .
Announced through Video conferencing on 20.08.2020 (RAJ KUMAR CHAUHAN) District Judge (Commercial Court)01 SouthEast, Saket, Delhi.
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