Final Order 17

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 46/2024
CNR No. DLSH01-000344-2024
MR. TARSHAM MITTAL
PROP. OF M/S WHITE HOUSE BATH & KITCHEN
Through its’ A.R.
Sh. Satyaveer
Office At : F-174, Jagatpuri,
East Delhi-110 051.
......Plaintiff
Versus
SH. RAHUL GUPTA
PROP. OF M/S MADHUR INTERNATIONAL
Having its Regd. Office At
284/13-B, Ground Floor,
Pandav Road, Vishwas Nagar,
Shahdara, Delhi-32.
E-mail ID: N/A
Mob: +91-9810083333/9315093082
Also At :
12 Manohar Market,
Gali Peepal, Mahadev Hauz Qazi,
Chawri Bazar, New Delhi-110 006.
......Defendant
Date of Filing : 15.01.2024
Date of final arguments : 24.01.2025
Date of Judgment : 18.02.2025
JUDGMENT
1. The present commercial suit for recovery of a sum of
Rs.3,43,215/- (Rs. Three Lakhs Forty Three Thousand Two
CS (Comm.) 46/2024 page 1 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 1 of 13 --
Hundred Fifteen Only), alongwith pendentelite and future
interest @18% per annum, has been filed on behalf of the
plaintiff, wherein, it is stated that the plaintiff is running a
wholesale business of hardware, sanitary ware and bathroom
accessories etc. and the defendant is also one of the leading
businessman in the sanitary ware and was one of the regular
customers of the plaintiff, and purchased goods worth a total
amount of Rs.3,43,215/-, against two invoices, bearing
No.002103 and 002112, dated 17.02.2022 and 19.02.2022,
respectively, for an amount of Rs.51,729/- and Rs.2,91,486/-
respectively. But, despite repeated requests of the plaintiff, he
failed to make the payment and is withholding the said amount,
illegally.
2. It is further stated in the plaint that a legal notice dated
26.06.2023, was also served upon the defendant, whereby, the
defendant was asked to make the aforesaid payment. But, no
payment has been made by the defendant, till date, and hence, the
present suit.
3. After filing of the present suit, the summons of the suit for
settlement of issues were duly served upon the defendant, and in
compliance, the defendant filed his written statement, on
21.05.2024, wherein, it is stated that the plaintiff has filed the
present suit with the sole purpose of harassing and pressurizing
the defendant, and the same is based on false and frivolous facts.
4. It is further stated in the written statement that the
defendant Rahul Gupta is the proprietor of M/s Madhur
International, and was dealing in sanitary products and was
CS (Comm.) 46/2024 page 2 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 2 of 13 --
having business relations with the plaintiff since the year 2018,
and he never made any delay in payments.
5. It is further stated in the written statement that the plaintiff
had supplied the goods to the defendant from his different firms
and the said goods were of poor quality, and therefore, the same
were returned back by the vendors of the defendant.
6. It is further stated in the written statement that the plaintiff
had assured the defendant to replace the said goods. But, the
same were never replaced by him. It is further stated that in the
year 2022, when the defendant again approached the plaintiff for
supply of sanitary goods, the plaintiff raised the alleged invoices,
on the pretext that the said invoices were to be raised due to end
of the current financial year, i.e., FY 2021-22, and assured the
defendant that the goods would be supplied to him in the next
financial year 2022-23. But, the goods were never supplied to
him.
7. It is further stated in the written statement that the plaintiff
has adopted the deceitful tactics, and therefore, the suit of the
plaintiff may be dismissed with heavy costs.
8. Replication to the written statement of the defendant was
also filed, on behalf of the plaintiff, wherein, the contents of the
written statement have been denied and the contents of the plaint
have been reiterated and reaffirmed, as correct.
9. First case management hearing was conducted on
04.09.2024, and from the pleadings of the parties, the following
issues were framed, as under:
CS (Comm.) 46/2024 page 3 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 3 of 13 --
1. Whether the plaintiff is entitled to claim/recover the
amount of Rs.3,43,215/- from the defendant, as claimed
in the plaint? OPP
2. Whether the plaintiff is entitled to claim interest
from the defendant? If so, at what rate and for which
period? OPP
3. Relief.
10. Vide order dated 04.09.2024, with the consent of the
parties, a local commissioner was also appointed to record the
evidence of the parties, and accordingly, the Ld. Local
Commissioner recorded the evidence of the parties and submitted
her report, alongwith the record of evidence, in the court, on
15.10.2025.
11. During the trial, the plaintiff has examined his authorized
representative Sh.Satyaveer, as PW-1, whereas, the defendant has
examined himself as DW-1.
12. After completion of trial, final arguments were concluded
by Sh.Sumit Nandvani, Advocate, for the plaintiff and Sh.Tushar
Sharma, Advocate, for the defendant, on 24.01.2025. During the
course of final arguments, it was argued by the Ld. Counsel for
the plaintiff that the plaintiff was having business dealings with
the defendant since the year 2018 and the entire payments, except
for the two invoices dated 17.02.2022 and 19.02.2022, have
already been made by the defendant. He has further argued that
the goods were duly supplied and delivered to the defendant
against the aforesaid two invoices and the defendant had already
availed the GST input/ tax benefit from the GST Department,
CS (Comm.) 46/2024 page 4 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 4 of 13 --
Govt. of India, and therefore, the suit of the plaintiff may be
decreed, with interest and costs.
13. On the other hand, the Ld. Counsel for the defendant has
argued that the goods against the aforesaid two alleged invoices
were never delivered to the defendant, and therefore, the suit of
the plaintiff may be dismissed with costs.
14. I have carefully perused the case file and I have also given
my considered thoughts to the arguments addressed by the Ld.
Counsels for the parties. My findings on the various issues are as
under:
Issue No. 1
Whether the plaintiff is entitled to claim/recover the
amount of Rs.3,43,215/- from the defendant, as claimed
in the plaint? OPP
15. The burden to prove this issue lies on the plaintiff. In
support of his contentions, the plaintiff has examined his
authorized representative Sh. Satyaveer, as PW-1, who has filed
his affidavit Ex.PW1, wherein, he has reproduced the entire
contents of the plaint. In the affidavit, it has been reiterated that
the defendant was one of the regular customers of the plaintiff
and purchased goods worth Rs.51,729/- on 17.02.2022 and
further purchased goods worth Rs.2,91,486/- on 20.02.2022. The
invoice No.002103 dated 17.02.2022 and invoice No.002112
dated 19.02.2022, have been placed on record as Ex.PW1/4. The
eway bill for supply of goods worth Rs.2,91,486/- has been
proved on record as Ex.PW1/5. The ledger account maintained
CS (Comm.) 46/2024 page 5 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 5 of 13 --
by the plaintiff has been proved on record as Ex.PW1/6. The
certificate under Section 65B of the Indian Evidence Act has
been filed on record as Ex.PW1/11. The authorization letter, in
favour of this witness, is filed on record as Ex.PW1/1.
16. In the affidavit Ex.PW1, it is further stated by PW-1
Satyaveer that the goods supplied by the plaintiff were duly
acknowledged by the defendant and the defendant assured to pay
the bill amount, but avoided to make the payment. It is further
stated that despite repeated requests and reminders, the defendant
had failed to make the payment of the due amount of
Rs.3,43,215/-.
17. It is further stated in the affidavit Ex.PW1 that a legal
notice dated 26.06.2023 was also served upon the defendant.
But, despite service of the legal notice, the defendant had failed
to make the payment of the due amount. The copy of the legal
notice has been placed on record as Ex.PW1/8. Postal receipt has
been placed on record as Ex.PW1/9.
18. It is further stated in the affidavit Ex.PW1 that the plaintiff
had filed an application for pre-litigation mediation before
Shahdara District Legal Services Authority on 18.08.2023. But,
the defendant failed to appear before the said authority, and
therefore, a Non-Starter Report dated 14.09.2023, Ex.PW1/7,
was issued.
19. PW-1 Satyaveer has also deposed in his cross-examination
that he was working with the plaintiff Tarsham Mittal since the
year 2009 as his employee. But, no document regarding his
CS (Comm.) 46/2024 page 6 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 6 of 13 --
employment has been placed on record, during the trial.
However, an authorization letter in his favour, purportedly issued
by the plaintiff Tarsham Mittal, has been placed on record as
Ex.PW1/1. But, during the trial, the executant of this document,
i.e., the plaintiff Tarsham Mittal has failed to appear before the
court to prove this document. Therefore, this authorization letter,
which does not even bear the date of its execution, could not be
proved in accordance with law.
20. It is also very relevant to note that PW-1 Satyaveer has
deposed in the capacity of the authorized representative of the
plaintiff Tarsham Mittal. But, this authorization letter mentions
the fact that PW-1 Satyaveer was authorized only to appear,
plead, make submissions and to file any document on behalf of
the company, in respect to the present suit. But, this
authorization letter does no indicate anything about the previous
conduct of PW-1 Satyaveer and also does not authorize him to
perform any act or duties on behalf of the plaintiff, prior to the
institution of the present suit.
21. It was held by the Hon’ble Supreme Court of India, in case
titled as, ‘
S. Kesari Hanuman Goud vs Anjum Jehan & Ors.’,
reported as, ‘(2013) 12 SCC 64’, as under :
“13. It is a settled legal proposition that the power of
attorney holder cannot depose in place of the principal.
Provisions of Order III, Rules 1 and 2 CPC empower the
holder of the power of attorney to “act” on behalf of the
principal. The word “acts” employed therein is confined
only to “acts” done by the power-of-attorney holder, in
exercise of the power granted to him by virtue of the
instrument. The term “acts”, would not include deposing in
place and instead of the principal. In other words, if the
CS (Comm.) 46/2024 page 7 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 7 of 13 --
power-of-attorney holder has preferred any “acts” in
pursuance of the power of attorney, he may depose for the
principal in respect of such acts, but he cannot depose for
the principal for acts done by the principal, and not by him.
Similarly, he cannot depose for the principal in respect of a
matter, as regards which, only the principal can have
personal knowledge and in respect of which, the principal
is entitled to be cross-examined. (See: Vidhyadhar v.
Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo
Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217; M/s
Shankar Finance and Investment vs. State of A.P. & Ors.,
AIR 2009 SC 422; and Man Kaur v. Hartar Singh Sangha,
(2010) 10 SCC 512).”
(emphasis supplied)
22. In the present case, the plaintiff has failed to appear before
the court and has failed to examine himself, during the trial, in
support of his contentions. Therefore, the plaintiff has concealed
the best possible evidence from the court. The plaintiff has only
examined his authorized representative PW-1 Satyaveer, but this
witness was not authorized by him to conduct any business
transactions on behalf of the plaintiff, prior to institution of the
present suit. The plaintiff has not executed any power of attorney
in favour of PW-1 Satyaveer, at any point of time.
23. During the trial, PW-1 Satyaveer was also subjected to
lengthy cross-examination on behalf of the defendant, wherein,
he has admitted that no document of his employment with the
plaintiff was filed on record. During his cross-examination, he
has further deposed that initially, he started working in a
proprietorship firm ‘Ambuja Enterprises’, wherein, Mr. Raju
Garg was its proprietor. He has further deposed that the said firm
was being managed by a group of people, including the plaintiff
Mr. Tarsham Mittal and apart from Mr. Tarsham Mittal, Mr.
CS (Comm.) 46/2024 page 8 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 8 of 13 --
Raju Garg, Mr. Praveen Aggarwal and Mr. Sunil Garg, were also
the group members. He has further deposed that he met the
defendant Rahul Gupta, through Sh. Tarsham Mittal, only in the
year 2019. But, Mr. Tarsham Mittal was having business
relationship with Mr. Rahul Gupta since the year 2014-15. It is
further deposed by him that M/s White House Bath was one of
the firms with whom the defendant was doing business. He has
further deposed that the defendant Rahul Gupta was having
business with other firms also. But, this witness has failed to
disclose the names of other firms, with whom the defendant was
having business relations.
24. During his cross-examination, PW-1 Satyaveer has
admitted that since the year 2014-15, he was having no direct
negotiation with the defendant, on behalf of M/s White House
Bath & Kitchen. He has further deposed that Mr. Praveen Garg
was the person who played instrumental role in coordinating with
the defendant Rahul Gupta. Surprisingly, during the trial, the
plaintiff has failed to examine even the said Mr. Praveen Garg.
25. During his cross-examination, PW-1 Satyaveer has further
deposed that Mr. Tarsham Mittal was having business relations
with Mr. Rahul Gupta in his other firms/companies also. But, the
ledger accounts pertaining to the said transactions were never
produced before the court. This witness was having no
knowledge about the previous business transactions of M/s White
House Bath & Kitchen with the defendant Rahul Gupta.
However, he has admitted that there were several other invoices
also, against which the business dealings were done with the
CS (Comm.) 46/2024 page 9 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 9 of 13 --
defendant Rahul Gupta. But, the said other invoices are also not
filed on record.
26. Perusal of ledger account Ex.PW1/6 further shows that this
ledger account mentions the entries only pertaining to the
aforesaid two invoices, dated 17.02.2022 and 19.02.2022. It is
very relevant to note here that the invoice Ex.PW1/4 bears
No.21-22/GST-2103 dated 17.02.2022, for an amount of
Rs.51,729/- . But, the ledger account Ex.PW1/6 mentions the
invoice number as 21-22/GST-002104. Similarly the tax invoice
No.21-22/GST-2112 dated 19.02.2022 has not been mentioned in
the ledger account Ex.PW1/6 and invoice No.21-22/GST-002113
worth Rs.2,91,486/- has been mentioned in it.
27. During his cross-examination, PW-1 Satyaveer has also
failed to disclose the number of total invoices issued by M/s
White House Bath & Kitchen, in the name of defendant Rahul
Gupta. During his cross-examination, he has deposed that the
complete ledger account has been filed by him. But, the ledger
account Ex.PW1/6 is not a complete ledger account of all the
transactions between the parties.
28. During his cross-examination, PW-1 Satyaveer has also
admitted that the orders pertaining to the invoices on record,
were placed on phone, by the defendant Rahul Gupta, directly
with Mr. Praveen Aggarwal, the director of M/s Redon India Pvt
Ltd. He has further deposed that Mr Praveen Aggarwal,
alongwith the plaintiff Tarsham Mittal was one of the directors in
M/s Redon India Pvt Ltd and he was also employed with M/s
Redon India Pvt Ltd. This witness has admitted that no
CS (Comm.) 46/2024 page 10 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 10 of 13 --
document was filed on record to show that Mr. Praveen
Aggarwal was also holding any position or post in M/s White
House Bath & Kitchen.
29. Perusal of the record further shows that except PW-1, the
plaintiff has failed to examine any other witness, in support of his
contentions. He has failed to examine himself or Mr.Praveen
Garg or Mr. Praveen Aggarwal, to substantiate his contentions.
Furthermore, there is no documentary evidence to prove the
delivery of goods against invoice No.21-22/GST-002113, worth
Rs.2,91,486/-, as mentioned in ledger Ex.PW1/6. The eway bill
Ex.PW1/5 pertains to the invoice No.21-22/GST-2112 worth
Rs.2,91,486. The plaintiff has even failed to produce the GST
returns of the parties, during the trial, to establish on record that
the defendant has received the goods and has claimed the GST
benefit from the GST department.
30. During the trial, the defendant has also examined himself
as DW-1 and has filed his affidavit Ex.DW1/1, wherein, he has
also reproduced the contents of his written statement. In his
affidavit, it is reiterated by the defendant that the plaintiff has
failed to annex the complete ledger account and the goods
against the claimed invoices were of poor quality and the same
were returned back by the vendors. It is further deposed that the
plaintiff had agreed to replace the said goods. But, the same
were never replaced by the plaintiff. During his cross-
examination, the defendant has admitted that he availed the GST
input against the aforesaid two invoices, on the assurance of the
plaintiff that the GST input would be adjusted lateron. But, he
CS (Comm.) 46/2024 page 11 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 11 of 13 --
has specifically denied the suggestion that the goods against
invoices Ex.PW1/4 (Collectively), were delivered to him.
31. From the testimonies of the parties, as discussed above, it
is clear that the plaintiff has concealed the material evidence
from the court, by not examining himself during the trial.
Furthermore, the evidence led by PW-1 Satyaveer, is of no
benefit to the plaintiff, in view of the judgment of the Hon’ble
Supreme Court, in case titled as, ‘
S. Kesari Hanuman Goud vs
Anjum Jehan & Ors.’ (Supra).
In view of above discussion, this issue is decided against
the plaintiff.
Issue No. 2
Whether the plaintiff is entitled to claim interest from
the defendant? If so, at what rate and for which period?
OPP
32. In view of my findings on the issue No.1, as above, this
issue is also decided against the plaintiff.
Relief
33. In view of the findings on the various issues, as discussed
above, this court is of the considered opinion that the plaintiff is not
entitled for any relief, against the defendant, in the present suit.
Therefore, the present suit of the plaintiff is hereby dismissed,
being devoid of any merits.
CS (Comm.) 46/2024 page 12 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 12 of 13 --
Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court
on this 18th Day of February, 2025
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
CS (Comm.) 46/2024 page 13 of 13 D.J.(Commercial)-01/Shahdara/KKD/Delhi
-- 13 of 13 --