Final Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. ANIL KUMAR SISODIA:
DISTRICT JUDGE, COMMERCIAL-04: CENTRAL:
TIS HAZARI COURTS: DELHI.
CS (COMM) 433/2025
M/s Lucky Brass Pvt. Ltd.
1, UA, Jawarhar Nagar,
Delhi-110007
Through its Director Mr. Chetan Pahawa ….........Plaintiff
Vs.
Sh. Hemant
Prop. Of M/s Anika Industries,
At Ground Village Abhipur, Anika Industries,
Unnamed Road, Bela Mandir,
Nalagarh, Solan,
Himachal Pradesh-174101 …..........Defendant
Date of e-filing of the suit : 23.02.2025
Date of reserving judgment : 23.01.2026
Date of judgment : 04.02.2026
Judgment
1. This is a suit for recovery of Rs. 3,03,828/- (Rupees Three Lakhs Three
Thousand Eight Hundred Twenty Eight Only) along with interest against
defendant.
CS (Comm) 433/2025 M/s Lucky Brass Pvt. Ltd. Vs Sh. Hemant Page No. 1 of 14
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2. Briefly stated, facts of the case are that plaintiff is engaged in the business
of brace and the products manufactured by brace and machinery. The defendant
regularly purchased brace and brace products from the plaintiff from time to time
and used to make the payment of the goods/ brace some time in cash and some
time in cheque. The defendant also purchased brace and brace products from the
plaintiff on credit basis.
3. It is further stated that plaintiff maintained a running account in the name of
the firm of the defendant i.e. M/s Anika Industries and as per the said account, a
sum of Rs. 3,03,828/- was due and payable by the defendant to the plaintiff as on
09.01.2024 after deducting the sum of Rs. 7,198/- paid by the defendant to the
plaintiff on 09.01.2024. The plaintiff from time to time requested the defendant to
pay the aforesaid due amount, but the defendant always used to linger on the
matter on one pretext or the other. As the defendant has been withholding the
aforesaid legal payable dues of the plaintiff without any reason, the defendant is
liable to pay interest @ 18% p.a on the aforesaid outstanding amount from the due
date of the said amount till the date of payment as per the prevailing market rate of
interest of the trade in which the plaintiff is engaged. It is stated that having no
option, the plaintiff served a legal notice dated 22.04.2024 upon the defendant and
same was duly served upon the defendant but the defendant despite receipt of the
said legal demand notice not paid the aforesaid due amount. Finding no other
alternative, plaintiff company filed the present suit against the defendant.
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4. The defendant was duly served with the summons of the suit. Defendant has
contested the suit by filing the written statement. Defendant has raised preliminary
objections that plaintiff has filed the suit on concocted and fabricated story. The
defendant resides at Flat no. 5, Block No. 7, Himuda Colony, Nalagarh, District
Solan-170101, Himachal Pradesh. The plaintiff has not filed any board resolution
authorizing Chetan Pahwa to file the present suit and suit has not been filed by the
competent person and is liable to be dismissed. It is stated that defendant had
already cleared all the amount for the goods purchased by him and there is no
outstanding amount against the defendant. Defendant did not place any purchase
order for supply of the goods. Plaintiff has failed to place on record any
documentary evidence to substantiate the transactions and delivery of goods like e-
way bill, transport receipt, or any other proof of deliver. The ledger account filed
by the plaintiff is false and manipulated or defendant never confirmed or
acknowledged any such ledger. Plaint has not been filed in accordance with the
provisions of Commercial Courts Act and requisite court fees has not been paid.
Plaintiff failed to produce any copy of complaint or FIR pertaining to the alleged
loss of postal receipt. The plaintiff has not approached this court with clean hands.
In his preliminary submission, defendant has stated that defendant is the sole
proprietor of the firm M/s Anika Industries. Defendant had certain business
dealings with the plaintiff but all such transactions were duly accounted for an the
entire consideration in respect of said purchases was fully paid by the defendant
partly in cash and partly through banking transactions. No amount whatsoever
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remains outstanding or payable by the defendant to the plaintiff company.
Defendant was under the bonafide impression that accounts of the plaintiff
company stood closed. Plaintiff has fabricated false records and books of account
to create a false liability on the defendant.
On merits, the contents of the plaint have been denied and a prayer has been
made for dismissal of the suit.
5. Plaintiff has filed replication to the WS and has reiterated the contents of the
plaint and have denied the contents contrary to it.
6. On the basis of pleadings of the parties, following issues were framed on
14.11.2025: -
1. Whether the suit is instituted by duly authorized person?(OPP)
2. Whether the defendant has not received any goods from the plaintiff ?
(OPD)
3. Whether the defendant had made payment to the plaintiff for all the
transactions and no amount is outstanding against the defendant?(OPD)
4. Whether the plaintiff is entitled for recovery of suit amount as prayed
for? (OPP)
5. Whether the plaintiff is entitled for the interest on the aforesaid amount,
if so, at what rate and for which period?(OPP)
6. Relief.
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7. The plaintiff examined Sh. Chetan Pahawa, Director of plaintiff as PW-1
who tendered his affidavit as Ex PW1/A and proved the following documents: -
Sr.
No
.
Documents Exhibits
1 Statement of account from 01.04.2022 to
31.03.2023
Ex.PW-1/1
2 Statement of account from 01.04.2023 to
27.09.2024
Ex.PW-1/2
3 Copy of Invoice no. LB/1938/22-23 dated
13.10.2022
Ex.PW-1/3
4 Copy of Invoice no. LB/1939/22-23 dated
13.10.2022
Ex.PW-1/4
5 Copy of Invoice no. LB/1964/22-23 dated
15.10.2022
Ex.PW-1/5
6 Copy of Invoice no. LB/2072/22-23 dated
28.10.2022
Ex.PW-1/6
7 Copy of Invoice no. LB/2283/22-23 dated
16.11.2022
Ex.PW-1/7
8 Copy of Invoice no. LB/2284/22-23 dated
16.11.2022
Ex.PW-1/8
9 Copy of Invoice no. LB/2333/22-23 dated
21.11.2022
Ex.PW-1/9
10 Copy of Invoice no. LB/2459/22-23 dated
01.12.2022
Ex.PW-
1/10
11 Copy of Invoice no. LB/2972/22-23 dated Ex.PW-
CS (Comm) 433/2025 M/s Lucky Brass Pvt. Ltd. Vs Sh. Hemant Page No. 5 of 14
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20.01.2023 1/11
12 Copy of Invoice no. LB/3010/23-24 dated
09.01.2024
Ex.PW-
1/12
13 Non Starter Report Ex.PW-
1/13
14 Certificate u/s 63 of BSA, 2023 Ex.PW-
1/14
15 Copy of legal notice dated 22.04.2024 Ex.PW-
1/15
PW-1 was cross-examined by counsel for the defendant and thereafter, PE
was closed.
8. Defendant did not examine any witness despite opportunity being given
and vide order dated 16.12.2025 on the submission of counsel for defendant, DE
was closed.
9. I have heard Ld. Counsel for plaintiff and Ld. Counsel for defendant and
have also perused the record carefully inter alia pleadings of the parties,
documents adduced by them and evidence led by the plaintiff.
10. Issue wise findings on the basis of evidence and arguments are as under: -
ISSUE NO. 1:
Whether the suit is instituted by duly authorized person?(OPP)
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11. The onus of proving this issue has been cast on the plaintiff. Counsel for
plaintiff has submitted that plaintiff has filed the suit being the director of the
plaintiff company and therefore, he is duly authorized by the plaintiff company to
prosecute the present suit.
Counsel for defendant has argued that plaintiff has not placed on record any
documents either memorandum or article of association to show that he has been
duly authorized by the plaintiff company to file the suit. It was argued that in fact
plaintiff has not placed on record any documents even to show that he is the
director of the plaintiff company and in the absence of any such documentary
evidence, it cannot be said that the suit has been instituted by duly authorized
person on behalf of the plaintiff company.
12. A perusal of record would show that there is no specific averment in the
plaint that Chetan Pahwa is a director of the plaintiff company or that he has been
authorized by any board resolution to institute the present suit. The plaintiff has
also not filed any board resolution or Articles of Association to show that Sh.
Chetan Pahwa is authorized to file the present suit. In his cross-examination, PW-
1 Chetan Pahwa deposed that he was not aware if there was any document on
record which shows him as a director of the plaintiff company.
13. Order 29 Rule 1 CPC provides that in a suit by or against corporation, any
pleadings may be signed and verified on behalf of the corporation by the Secretary
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or any director or other principal officer of the corporation who is able to depose
on the facts of the case. However, this provision does not entitle the principal
officer of a company to file a suit on its behalf and that authority has to be found
either in the Articles of Association of the company or in the resolution of its Board
Directors. In the Articles of Association of several companies, provision is
generally made authorizing their Managing Directors and other officers to file and
defend suits on their behalf. Similarly, the Board of Directors of a company can
authorize the institution of a suit on behalf of the company by a resolution.
Reliance in this regard can be placed on the judgments of Oberoi Hotels (India)
Pvt. Ltd. vs. M/s. Observer Publication Pvt. Ltd. (Suit No.469 of 1966 decided on
26.11.1968).
14. Further, in Nibro Ltd. vs. National Insurance Co. Ltd. AIR 1991 Delhi 25,
it was held that the Board of Directors must specifically authorize by a Board
Resolution, a Director of the company to engage an agent or a pleader to file a
suit on behalf of the company. Unless a power to institute the suit is specifically
conferred on a particular Director, he has no authority to institute the suit on
behalf of the company.
This proposition has been further reiterated by Hon’ble High Court of Delhi
in the judgment of Baker Oil Tools (India) Pvt. Ltd. Vs Baker Hughes Ltd. &
Anr., 2011 (47) PTC 296 (Del)
15. In the absence of any Articles of Association or Board Resolution being
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proved by the plaintiff to show that it had authorized its director Sh. Chetan Pahwa
to institute the present suit on behalf of the plaintiff company, it cannot be said that
the present suit is instituted by duly authorized person on behalf of the plaintiff
company.
16. The issue is accordingly decided against the plaintiff and in favour of the
defendant.
ISSUE NO. 3:
Whether the defendant had made payment to the plaintiff for all the
transactions and no amount is outstanding against the defendant?(OPD)
17. The onus of proving this issue has been cast on the defendant. In the WS,
defendant has taken a defence that he has already paid the price of the goods
purchased by him from the plaintiff for all the transactions and no amount is
outstanding against him. However, defendant has not led any evidence to
substantiate this defence nor defendant has produced any documents such as his
bank statement or ledger account to substantiate his defence. Hence, in the
absence of any oral or documentary evidence adduced by the defendant, I am of
the considered opinion that defendant has failed to discharge the onus cast on him.
The issue is accordingly decided against the defendant and in favour of plaintiff.
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ISSUE NOs. 2 & 4 :
2. Whether the defendant has not received any goods from the plaintiff ?
(OPD)
4. Whether the plaintiff is entitled for recovery of suit amount as
prayed for? (OPP)
18. The onus of proving issue no. 2 has been cast on the defendant whereas onus
of proving issue no. 4 has been cast on the plaintiff.
Both these issues are taken up together as they are inter-connected and can
be disposed of by common discussion.
19. The case of the plaintiff is that plaintiff had supplied goods to the defendant
vide invoices Ex. PW-1/3 to Ex. PW-1/12. The plaintiff also proved the ledger
account maintained in the name of defendant from 01.04.2022 to 06.05.2024 as Ex.
PW-1/2 showing an outstanding balance of Rs. 3,03,828/- as on 09.01.2024. It is
also the case of the plaintiff that defendant failed to make the payment despite
issuance repeated demands and issuance of legal notice Ex. PW-1/15.
The defendant in his defence has denied the receipt of any goods from the
plaintiff and has submitted that the invoices and the ledger account are manipulated
documents and do not bear the acknowledgement on behalf of the defendant.
20. Counsel for plaintiff has argued that plaintiff has placed on record e-way
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bills along with the invoices and some of the goods were delivered to the staff of
the defendant who had signed on the invoices along with his mobile number in
token of acceptance of goods. It is also argued that the invoices were drawn in the
name of the proprietorship firm of defendant Anika Industries and the ledger
account shows an outstanding balance of Rs. 3,03,828/-. It was argued that
defendant has not led any evidence in support of his defence and the documents of
the plaintiff have been duly proved by PW-1. Therefore, plaintiff is entitled for
recovery of suit amount.
21. Per Contra, Counsel for defendant has argued that the onus of proving
delivery of the goods was upon the plaintiff and in the absence of any satisfactory
evidence to show that goods were duly delivered to the defendant, plaintiff is not
entitled for recovery of the price of the goods. He argued that the e-way bills filed
by the plaintiff along with invoices Ex.PW-1/3 and Ex. PW-1/9 would show that
these e-way bills were not valid for movement as Part B was not entered. It was
also argued that as regards the signatures on the invoices is concerned, the
defendant has denied the documents in his affidavit of admission-denial of
documents. It was further argued that plaintiff has neither examined any witness
from the GST department nor has placed on record any goods receipt / lorry
receipts to show that goods were actually transported and delivered to the
defendant. The testimony of PW-1 regarding the signatures on the invoices is itself
contradictory and cannot be accepted.
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22. At the outset, it may be mentioned that in order to succeed in its claim for
recovery of price of the goods sold, the plaintiff is required to prove the delivery of
the goods to the buyer. In the absence of proof of delivery of the goods, the
plaintiff cannot claim the price of the same.
In the present case, the plaintiff has relied upon the invoices Ex. PW-1/3 to
Ex. PW-1/12 in support of sale of the goods. All these invoices bear the signatures
of the receiver along with mobile number 9136796830. However, the invoices do
not bear the name of the recipient of the goods or his relation with the defendant.
In his cross-examination, PW-1 Chetan Pahwa has admitted that there was no
purchase order in writing placed by defendant with the plaintiff and volunteered
that purchase orders were placed on telephone or Whatsapp. However, no
screenshot of Whatsapp chat by which purchase orders were placed, have been
filed by the plaintiff. PW-1 further deposed that he had never met the defendant.
He deposed that invoices were received by Ankit son of defendant and the goods
were delivered in his office. He also volunteered that sometime goods were
delivered to the employee of the defendant and sometime Ankit used to come and
take delivery of the goods. In further cross-examination, PW-1 deposed that he was
not aware that Ankit is not the son of Hemant (defendant) and he also does not
know the relationship between Hemant and Ankit. In further cross-examination, he
deposed that all his dealings took place with Ankit and Anika Industries and that
the name of father of Ankit is Virender. This testimony of PW-1 shows that he
himself is not aware of the relationship between Ankit and the defendant. On one
hand, he is claiming that Ankit is the son of Hemant and on the other hand he has
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deposed that Virender is the father of Ankit. Not only this, he has deposed that he
came to know after filing of the case that Hemant is the proprietor of Anika
Industries. However, this statement is again falsified by the memo of parties which
mentions that Hemant is proprietor of M/s Anika Industries. It is also surprising
that plaintiff did not examine the said Ankit to establish the relationship between
defendant and Ankit and that he has received the goods on behalf of the defendant.
In the absence of any oral or documentary evidence adduced by the plaintiff, it
cannot be held that Ankit had received the goods on behalf of the defendant.
23. Further, as per the plaintiff, some of the goods were sent by the transport.
However, plaintiff has not placed on record any goods receipts / lorry receipts in
support of its averments nor plaintiff has examined any witness from the office of
transporter who had delivered the goods to the defendant. The e-way bills relied
upon by the plaintiff also do not constitute the proof of delivery as the e-way bills
contains an endorsement “NOT VALID FOR MOVEMENT AS PART B IS
NOT ENTERED”. This endorsement itself shows that the e-way bill was not
even sufficient to prove that the goods were put in transit. The plaintiff has also not
examined any witness from the GST department to prove that defendant had taken
the input tax credit for the goods received by him.
24. In view of the aforesaid evidence on record, I am of the considered opinion
that plaintiff has failed to prove even by preponderance of probability that the
goods were delivered by the plaintiff to the defendant. Therefore, plaintiff is not
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entitled for recovery of the suit amount as prayed for.
In view of the aforesaid discussion, the issues are accordingly decided
against the plaintiff and in favour of defendant.
ISSUE NO. 5:
Whether the plaintiff is entitled for the interest on the aforesaid amount,
if so, at what rate and for which period?(OPP)
25. The onus of proving this issue has been cast on the plaintiff. However,
in view of my findings on issue nos. 2 and 4 hereinabove, since the plaintiff has
failed to proved that it is entitled for recovery of suit amount, the question of award
of interest does not arise. The issue is accordingly decided against the plaintiff and
in favour of defendant.
Relief.
26. In view of findings on issues hereinabove, the suit of the plaintiff is
dismissed. Parties shall bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (ANIL KUMAR SISODIA)
Dated: 04th February, 2026 DISTRICT JUDGE-04, CENTRAL
TIS HAZARI COURT, DELHI
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