Delhi District Court
Lalit Goel vs Mcr Build Well Llp on 4 July, 2026
IN THE COURT OF SHRI DEVENDER KUMAR, DISTRICT JUDGE
(COMMERCIAL COURT-01), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 215/2024
Lalit Goel
Proprietor of M/s Laxmi Trading Co.
having its Registered Office at:
C-11, Preeti Vihar,
Delhi-110092 ...... Plaintiff
Vs.
MCR Build Well LLP
Through its Director
Mr. Manish Kumar Bhardwaj
Ms. Manisha
Registered Office at:
145, Gharonda Neem Banger,
Patparganj, Delhi -110091 ...... Defendant
Date of institution : 26.07.2024
Date of Argument : 06.06.2026
Date of judgment : 04.07.2026
(Suit for recovery of Rs. 5,67,056/- alongwith
Pendente-lite and future interest @ 18% per annum)
Digitally
signed by
DEVENDRA
DEVENDRA KUMAR
CS (Comm) No. 215/2024 KUMAR Date:
Lalit Goel Vs. MCR Build Well LLP 2026.07.04 1/44
16:36:51
+0530
JUDGMENT :
–
1. Vide this judgment, I shall dispose off this suit for recovery of Rs.
5,67,056/- along with interest @ 18% per annum from the date of filing of
this suit till its realization filed by the plaintiff. Brief facts of the case are as
under:
2. Plaintiff is a proprietorship firm and is being represented through its
proprietor Mr. Lalit Goel, who has instituted this suit. It is further alleged
that the plaintiff is engaged in the business of supply of Vanaspati & Soya
Refined Oils and supplying material to his various customers. It is further
alleged that the defendant MCR Build Well is a partnership LLP registered
with the Registrar of Companies and approached to the plaintiff for supply
of Vanaspati and Soya Refined oils with assurance to make payment on
time. It is further alleged that the plaintiff supplied oils to the defendant
time to time and raised invoices but the defendant failed to pay due
amount. It is further alleged that the plaintiff maintained a running ledger
account of the defendant in the regular course of business, as per which, an
amount of Rs. 3,29,684/- along with interest @ 18% per annum till filing of
this suit was outstanding against the defendant.
2.1. Plaintiff has further alleged that the plaintiff demanded due amount
from the defendant repeatedly and also served a legal notice dated
21.09.2023 but the defendant failed to pay due amount and last payment
was made on 10.04.2020 and thereafter failed to pay remaining amount.
Plaintiff has prayed for decree of outstanding amount of Rs. 03,29,684/-
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 2/44
Date:
KUMAR 2026.07.04
16:36:57
+0530
along with interest @ 18% per annum.
3. Defendant has filed WS thereby denying all the allegations of the
plaintiff and has alleged that this suit is barred by limitation and is liable to
be dismissed. It is further alleged that the defendant neither dealt with the
plaintiff nor purchased refined oils from the plaintiff and rather wife of the
defendant had already expired on 27.02.2018 and partnership firm was not
in existence at the time of filing of this suit, due to this suit is not
maintainable. It is further alleged that the plaintiff has not placed on record
any workorder to prove supply of material and there was no privity of
contract between the parties and the defendant firm never conducted any
business with the plaintiff as alleged. It is further alleged that the plaintiff
has mentioned wrong GST number of the defendant firm and has
manipulated all documents, whereas no document has been placed on
record to prove transactions between the parties and there is no
acknowledgment of supply of material on record. It is further alleged that
the plaintiff has not annexed any document to prove supply of material, or
any other document to prove that material was received by the defendant or
anyone else on behalf of the defendant and this suit has been filed just to
damage the market reputation of the defendant. It is further alleged that
entire record is computer generated and has been forged just to raise false
claim and even Cheques No. 000046 dated 28.12.2017 for Rs. 80,000/- and
Cheque / DD no. 000048 dated 10.01.2018 for Rs.1 Lac were also not
issued by the defendant and all entries in statement of accounts are forged.
It is further alleged that dispute between the parties is not covered under the
Commercial Courts Act and same is liable to be dismissed.
Digitally signed by DEVENDRA CS (Comm) No. 215/2024 Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 3/44 KUMAR Date: 2026.07.04 16:37:00 +0530
3.1. Defendant has further alleged that the defendant firm was not
registered with Registrar of Companies and rather it was a partnership firm
comprised of two partners, out of which, one partner Ms. Manisha / wife of
the defendant had already expired and the firm ceased to exist after her
death, due to this suit against dead partnership firm is liable to be
dismissed. It is further alleged that the plaintiff never supplied vegetable or
edible oils to the defendant as alleged and rather the defendant firm had
been dealing in construction work and supply of edible oils was out of
question to such firm.
3.2. Defendant has further alleged that the plaintiff served a legal notice
to raising demand of payment and the defendant duly replied said legal
notice vide reply dated 26.11.2024. It is further alleged that alleged cause
of action arose beyond the territorial jurisdiction of this court and this court
has no jurisdiction to entertain this case. It is further alleged that the
defendant is not liable to pay amount and this suit is liable to be dismissed.
4. Plaintiff has filed replication to written statement of the defendant
thereby denying all the allegations of the defendant and has reaffirmed his
pleadings.
5. On the basis of pleadings of the parties following issues were framed
vide order dated 27.10.2025 as under:
ISSUES
1. Whether this suit is not within limitation as alleged? OPD
2. Whether defendant has no privity of contract with the plaintiff as
alleged? OPDCS (Comm) No. 215/2024
Lalit Goel Vs. MCR Build Well LLP Digitally signed 4/44
by DEVENDRA
DEVENDRA KUMAR
KUMAR Date:
2026.07.04
16:37:05 +0530
3. Whether plaintiff is entitled for decree of amount of Rs. 5,67,056/-
as prayed for? OPP
4. Whether plaintiff is entitled for interest against decretal amount as
prayed, if so, at what rate and for what period? OPP
5. Relief
6. To discharge the onus, the plaintiff has examined PW1 Lalit Goel,
who has deposed in verbatim of the plaint and has relied upon documents
Ex.PW1/A to Ex. PW1/F.
6.1. During Cross examination, PW1 has deposed that his firm M/s
Laxmi Trading Company is a proprietorship firm but he was not aware
whether the defendant company has partners or directors. It is further
deposed that he has been doing transactions in cash as well as online and
doing business with the defendant since 2016-17 and last dealing had taken
place in the year 2017. It is further deposed that the defendant made last
payment in the month of April, 2020, whereas he has filed this case in the
year 2024. It is further deposed that a payment of Rs. 10,000/- in cash was
made by the defendant which has been reflected in his cash book and audit
report prepared by CA, whereas he has not filed cash book or audit report
on record.
6.2. PW1 has further deposed that he knew the defendant for the last 12-
13 years but his version that he knew the defendant for the last 6-7 years is
correct. It is admitted that no written agreement was executed between
parties to supply goods. It is further deposed that Ms. Manisha was
CS (Comm) No. 215/2024
Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 5/44
KUMAR
DEVENDRA
Date:
KUMAR 2026.07.04
16:37:09
+0530
Director of the defendant firm due to she has been impleaded, whereas he
has come to know yesterday only that she has expired. It is further deposed
that he used to deal with the defendant personally at his office and last
business discussion took place between them in the year 2016-17. It is
further admitted that he has not filed statement of accounts for the year
2016, as no dealing had taken place in the year 2016. It is further deposed
that he has been trading in Soya Refined and Vanaspati Oils but was not
aware whether the defendant had been dealing in building material. It is
denied that the defendant never approached to him to supply of goods but it
is admitted that his accountant was maintaining his account, but he also
aware about entries. It is further admitted that he neither sent copy of
statement of accounts to the defendant nor personally demanded
outstanding amount, whereas his staff demanded outstanding amount from
the defendant.
6.3. PW1 has denied that no material was supplied by him to the
defendant, or that no cash transaction had taken place between them. It is
further deposed that cash amount of Rs. 10,000/- was paid by the defendant
and it was stand-alone cash transaction. It is denied that he has relied upon
a forged and self-created document. It is further deposed that he has
received payment from accounts of the defendant company, but again said,
he cannot say whether amount was transferred from accounts of the
defendant company, but payment was made on behalf of the defendant. It is
further deposed that the defendant used to place verbal work orders to
supply oils so he was not aware where material was supplied to the
defendant, but he has not filed any acknowledgment of supply of material
Digitally signed
by DEVENDRA
CS (Comm) No. 215/2024 KUMAR
Lalit Goel Vs. MCR Build Well LLP DEVENDRA 6/44
Date:
KUMAR 2026.07.04
16:37:13
+0530
to the defendant.
7. DW1 Manish Kumar has deposed in verbatim of WS but has not
relied upon any document/s during examination in chief.
7.1. During cross examination, he has deposed that he did not remember
exact date, month and year of incorporation of his company i.e. MCR Build
Well. It is admitted that he received legal notice of the plaintiff and also
replied it but has not placed on record its copy. It is admitted that his wife
has expired after incorporation of LLP, which was dealing in construction
business. It is admitted that he has not placed on record any document to
prove construction business of the defendant firm. It is admitted that Para 3
of his affidavit is beyond pleadings. It is admitted that he along with his
wife was Director/Partner in the firm. It is further deposed that he visited
office of the plaintiff on receipt of legal notice but has not mentioned this
fact in his WS. It is further deposed that he did not remember office
address of the plaintiff but visited, whereas he never dealt in edible oils. It
is admitted that he has not placed on record his bank statement. It is further
admitted that there were two partners in LLP i.e. he and his wife but he has
not placed on record registration certificate of LLP.
7.2. DW1 has further deposed that property bearing No. 145, Patparganj,
Mayur Vihar Phase-I belongs to him and GST number mention on invoices
also belongs to him. It is further admitted that the defendant firm was set up
effectively on 10.07.2017. It is denied that he received material and failed
to pay due amount and is liable to pay.
Digitally
signed by
DEVENDRA
CS (Comm) No. 215/2024 DEVENDRA KUMAR
Lalit Goel Vs. MCR Build Well LLP 7/44
KUMAR Date:
2026.07.04
16:37:17
+0530
8. I have heard the arguments and perused the file. However, before
giving my issue wise findings, it is necessary to ascertain authority of both
parties to plead/ contest this case.
Authority of Parties to File / Contest this Case
This suit has been instituted by the plaintiff, which is a proprietorship firm,
whereas the defendant stated to be a partnership LLP and has contested this
suit through its partner Mr. Manish Kumar/ defendant. Ld. Counsel for
plaintiff has argued that the defendant firm has not filed any authority to
represent the defendant, due to defense taken by the defendant cannot be
considered. On the other hand, Ld. Counsel for defendant has argued that
the partnership firm LLP has already been dissolved on the demise of other
partner in the year 2008 itself, due to this suit against dissolved partnership
firm is not maintainable. It is further argued that even the partnership LLP
never dealt with in vegetable and edible oils and rather dealing with in
construction business, due to the plaintiff never supplied oils as alleged and
this suit is not maintainable. It is further argued that onus to prove supply
of material / edible oils was on the plaintiff but the plaintiff has failed to
prove any document to prove supply of material and this suit is liable to be
dismissed. It is further argued that there is no provision under LLP Act,
2008 to prove separate authority to contest a case, especially when LLP has
already been dissolved, due to the defendant has every right to contest this
case and suit is liable to be dismissed.
9. Admittedly, the plaintiff is a proprietorship firm, which is not a
separate legal entity and may be represented through its proprietor. Order
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 8/44
KUMAR
DEVENDRA
Date:
KUMAR 2026.07.04
16:37:22
+0530
XXX Rule 10 of CPC deals with entities which are not separate legal
entities but doing business in names as under:
Order XXX, Rule 10. Suit against person carrying on business in
name other than his own.–Any person carrying on business in a
name or style other than his own name, or a Hindu undivided family
carrying on business under any name, may be sued in such name or
style as if it were a firm name, and, in so far as the nature of such case
permits, all rules under this Order shall apply accordingly.
10. Order XXX Rule 10 of CPC came into interpretation in case titled
Dogiparthi Venkata Satish v. Pilla Durga Prasad, 2025 SCC OnLine SC
1825 and relevant observations are as under:
4. We have heard learned Senior Counsel for the parties and perused
the material on record. In our considered opinion, the Trial Court was
right in rejecting the application under Order VII Rule 11 CPC. The
High Court committed serious error in relying upon Order XXX Rule
10 CPC. The reasons for our conclusion as noted above are as
follows:
4.1 A proprietorship concern is nothing, but a trade name given by an
individual for carrying on his business. A proprietorship concern is not
a juristic person. It cannot sue, however, in view of Order XXX Rule
10 CPC, it can be sued. In order to analyse the said provision, it would
be appropriate to reproduce the same. It reads as follows:
“10. Suit against person carrying on business in name other than his
own.– Any person carrying on business in a name or style other than
his own name, or a Hindu undivided family carrying on business
under any name, may be sued in such name or style as if it were a firm
name, and, in so far as the nature of such case permits, all rules under
this Order shall apply accordingly.”
4.2 The use of the word can in Order XXX Rule 10 CPC only
indicates that proprietorship concern may be made a party. However,
it does not necessarily mean that the proprietor itself if made a party
would not be enough, inasmuch as, the proprietorship is to be
defended by the proprietor only and not by anybody else. Once the
proprietor has been impleaded as a party representing the
proprietorship, no prejudice is caused to rather its interest is well
protected and taken care of by the only and only person, who ownsCS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 9/44
DEVENDRA KUMAR
KUMAR Date:
2026.07.04
16:37:26 +0530
the proprietorship. Order XXX Rule 10 CPC does not in any manner
debar a suit being filed against the proprietor.
4.3 It is well settled by series of judgments that proprietorship concern
cannot be equated either with a company or with a partnership firm.
Order XXX deals with partnership basically, however, Rule 10 thereof
refers to proprietorship. It makes very clear that proprietorship
concern cannot sue but it can be sued. Whether proprietorship concern
is sued in its name or through its proprietor representing the
concerned is one of the same thing. The High Court seems to have
taken completely hyper technical view not realising that there was no
prejudice caused and the cause of action very much accrued against
the proprietor as he alone had signed the lease deed on behalf of the
proprietorship concern and there was no involvement of any second or
third party, whose interest could be said to have been prejudicially
affected. Once the interest of the proprietorship concern was taken
care of by the proprietor having been impleaded nothing further
remained.
11. Further, in case titled Ashok Transport Agency v. Awadhesh Kumar,
(1998) 5 SCC 567, it has held that;
11.2. A partnership firm differs from a proprietary concern owned
by an individual. A partnership is governed by the provisions of the
Indian Partnership Act, 1932. Though a partnership is not a juristic
person but Order XXX Rule 1 CPC enables the partners of a
partnership firm to sue or to be sued in the name of the firm. A
proprietary concern is only the business name in which the proprietor
of the business carries on the business. A suit by or against a
proprietary concern is by or against the proprietor of the business. In
the event of the death of the proprietor of a proprietary concern, it is
the legal representatives of the proprietor who alone can sue or be
sued in respect of the dealings of the proprietary business. The
provisions of Rule 10 of Order XXX which make applicable the
provisions of Order XXX to a proprietary concern, enable the
proprietor of a proprietary business to be sued in the business names
of his proprietary concern. The real party who is being sued is the
proprietor of the said business. The said provision does not have the
effect of converting the proprietary business into a partnership firm.
The provisions of Rule 4 of Order XXX have no application to such a
suit as by virtue of Order XXX Rule 10 the other provisions of Order
XXX are applicable to a suit against the proprietor of proprietary
business “insofar as the nature of such case permits”. This means that
only those provisions of Order XXX can be made applicable to
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 10/44
KUMAR
DEVENDRA
Date:
KUMAR 2026.07.04
16:37:30
+0530
proprietary concern which can be so made applicable keeping in view
the nature of the case.
12. Further, in case titled Anil Bearings v. State Motors, 2010 SCC
OnLine Del 747, it has further held that;
16. No doubt, the settled legal position is that since a firm is not a
legal entity, the privilege of suing in the name of a firm is available
only to those persons who are partners in a firm and are doing
business as such. The present was, therefore, a case where the
description of the plaintiff by a firm name was a mis-description, but
such error in law, not being the description of a non-existent person, is
not one which cannot be corrected. The learned trial court ought,
therefore, to have directed the plaintiff to amend the memo of parties
to enable a proper description of the plaintiff and proceeded to
determine the real question in issue between the parties.
After going through abovesaid cases, it stands proved that the plaintiff was
not required specific authority to plead this suit and it was sufficient, if the
proprietor has filed this suit on behalf of the firm and suit is maintainable.
13. So far as authority of the defendant firm is concerned, the plaintiff
has filed this suit against the defendant i.e. MCR Buildwell LLP and Mr.
Manish Kumar has contested this case on behalf of the firm. Defendant has
filed Written Statement and in Para 4 of Preliminary Objections has alleged
that this suit is bad for the reason that one of the partners who was wife of
the answering defendant had already expired on 27.02.2018 and as per
general rule of partnership no single person can be called as a partnership
firm and such partnership firm cannot be sued nor can it sue. However, the
defendant has not filed partnership deed of LLP to dispute the claim of the
plaintiff. Contrary to it, the plaintiff has relied upon invoices Ex. PW1/A
(colly) which prove that the material was supplied to the defendant LLP,
Digitally
signed by
CS (Comm) No. 215/2024 DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 11/44
KUMAR Date:
2026.07.04
16:37:34
+0530
but in the absence of any partnership deed, it has to be proved that the
partnership LLP existed even after expiry of one of the partners to maintain
this suit, as death of any person is also a public notice to all.
14. Admittedly, the Partnership Act, 1932 and Limited Liability
Partnership Act, 2008 are two different enactments and Section 4 of
Limited Liability Partnership Act, 2008 bars application of general
provisions of The Partnership Act, 1932 against the partnership firm
enacted under LLP Act, 2008. In fact, a partnership firm with two partners
may get dissolved after death of one partner, whereas legal proposition of
LLP is different.
15. To ascertain legal proposition, it is necessary to go through the
provisions of LLP Act, 2008. Section 6 of the Act prescribes as under:
Section 6. Minimum number of partners.–(1) Every limited liability
partnership shall have at least two partners.
(2) If at any time the number of partners of a limited liability
partnership is reduced below two and the limited liability partnership
carries on business for more than six months while the number is so
reduced, the person, who is the only partner of the limited liability
partnership during the time that it so carries on business after those six
months and has the knowledge of the fact that it is carrying on
business with him alone, shall be liable personally for the obligations
of the limited liability partnership incurred during that period.
16. Further, Section 11 & 12 of the Act prescribe for incorporation of
firm as under:
Section-11. Incorporation document.–(1) For a limited liability
partnership to be incorporated,–
Digitally signed
by DEVENDRA
CS (Comm) No. 215/2024 KUMAR
DEVENDRA
Lalit Goel Vs. MCR Build Well LLP Date: 12/44
KUMAR 2026.07.04
16:37:45
+0530
(a) two or more persons associated for carrying on a lawful business
with a view to profit shall subscribe their names to an incorporation
document;
(b) the incorporation document shall be filed in such manner and with
such fees, as may be prescribed with the Registrar of the State in
which the registered office of the limited liability partnership is to be
situated; and
(c) there shall be filed along with the incorporation document, a
statement in the prescribed form, made by either an advocate, or a
Company Secretary or a Chartered Accountant or a Cost Accountant,
who is engaged in the formation of the limited liability partnership
and by any one who subscribed his name to the incorporation
document, that all the requirements of this Act and the rules made
thereunder have been complied with, in respect of incorporation and
matters precedent and incidental thereto.
(2) The incorporation document shall–
(a) be in a form as may be prescribed;
(b) state the name of the limited liability partnership;
(c) state the proposed business of the limited liability partnership;
(d) state the address of the registered office of the limited liability
partnership;
(e) state the name and address of each of the persons who are to be
partners of the limited liability partnership on incorporation;
(f) state the name and address of the persons who are to be designated
partners of the limited liability partnership on incorporation;
(g) contain such other information concerning the proposed limited
liability partnership as may be prescribed.
(3) If a person makes a statement under clause (c) of sub-section (1)
which he–
(a) knows to be false; or
(b) does not believe to be true,
shall be punishable with imprisonment for a term which may extend
to two years and with fine which shall not be less than ten thousand
rupees but which may extend to five lakh rupees.
Digitally signed
by DEVENDRA
CS (Comm) No. 215/2024 KUMAR
DEVENDRA
Lalit Goel Vs. MCR Build Well LLP Date: 13/44
KUMAR 2026.07.04
16:37:50
+0530
Section 12. Incorporation by registration.–(1) When the requirements
imposed by clauses (b) and (c) of sub-section (1) of Section 11 have
been complied with, the Registrar shall retain the incorporation
document and, unless the requirement imposed by clause (a) of that
sub-section has not been complied with, he shall, within a period of
fourteen days–
(a) register the incorporation document; and
(b) give a certificate that the limited liability partnership is
incorporated by the name specified therein.
(2) The Registrar may accept the statement delivered under clause (c)
of sub-section (1) of Section 11 as sufficient evidence that the
requirement imposed by clause (a) of that sub-section has been
complied with.
(3) The certificate issued under clause (b) of sub-section (1) shall be
signed by the Registrar and authenticated by his official seal.
(4) The certificate shall be conclusive evidence that the limited
liability partnership is incorporated by the name specified therein.
After going through Sections 11 & 12, it is clear that LLP may be
incorporated only against registered documents and shall be incorporated
for any business likely to be done by the firm or is being done. Section 14
of the Act specifies that after registration of LLP, LLP may sue or be sued
in its own name and may also acquire movable or immovable properties in
its own name.
17. Section 24 of the Act deals with dissolution of the firm which is as
under:
Section 24. Cessation of partnership interest.–(1) A person may cease
to be a partner of a limited liability partnership in accordance with an
agreement with the other partners or, in the absence of agreement with
the other partners as to cessation of being a partner, by giving a notice
in writing of not less than thirty days to the other partners of his
intention to resign as partner.
Digitally signed
by DEVENDRA
KUMAR
CS (Comm) No. 215/2024 DEVENDRA
Date:
Lalit Goel Vs. MCR Build Well LLP KUMAR 2026.07.04 14/44
16:37:56
+0530
(2) A person shall cease to be a partner of a limited liability
partnership–
(a) on his death or dissolution of the limited liability partnership; or
(b) if he is declared to be of unsound mind by a competent court; or
(c) if he has applied to be adjudged as an insolvent or declared as an
insolvent.
(3) Where a person has ceased to be a partner of a limited liability
partnership (hereinafter referred to as “former partner”), the former
partner is to be regarded (in relation to any person dealing with the
limited liability partnership) as still being a partner of the limited
liability partnership unless–
(a) the person has notice that the former partner has ceased to be a
partner of the limited liability partnership; or
(b) notice that the former partner has ceased to be a partner of the
limited liability partnership has been delivered to the Registrar.
(4) The cessation of a partner from the limited liability partnership
does not by itself discharge the partner from any obligation to the
limited liability partnership or to the other partners or to any other
person which he incurred while being a partner.
(5) Where a partner of a limited liability partnership ceases to be a
partner, unless otherwise provided in the limited liability partnership
agreement, the former partner or a person entitled to his share in
consequence of the death or insolvency of the former partner, shall be
entitled to receive from the limited liability partnership–
(a) an amount equal to the capital contribution of the former partner
actually made to the limited liability partnership; and
(b) his right to share in the accumulated profits of the limited liability
partnership, after the deduction of accumulated losses of the limited
liability partnership, determined as at the date the former partner
ceased to be a partner.
(6) A former partner or a person entitled to his share in consequence
of the death or insolvency of the former partner shall not have any
right to interfere in the management of the limited liability
partnership.
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 15/44
Date:
KUMAR 2026.07.04
16:38:01
+0530
Section-25. Registration of changes in partners.–(1) Every partner
shall inform the limited liability partnership of any change in his name
or address within a period of fifteen days of such change.
(2) A limited liability partnership shall–
(a) where a person becomes or ceases to be a partner, file a notice with
the Registrar within thirty days from the date he becomes or ceases to
be a partner; and
(b) where there is any change in the name or address of a partner, file
a notice with the Registrar within thirty days of such change.
(3) A notice filed with the Registrar under sub-section (2)–
(a) shall be in such form and accompanied by such fees as may be
prescribed;
(b) shall be signed by the designated partner of the limited liability
partnership and authenticated in a manner as may be prescribed; and
(c) if it relates to an incoming partner, shall contain a statement by
such partner that he consents to becoming a partner, signed by him
and authenticated in the manner as may be prescribed.
(4) If the limited liability partnership contravenes the provisions of
sub-section (2), the limited liability partnership and its every
designated partner shall be liable to a penalty of ten thousand rupees.
(5) If the contravention referred to in sub-section (1) is made by any
partner of the limited liability partnership, such partner shall be liable
to a penalty of ten thousand rupees.](6) Any person who ceases to be a partner of a limited liability
partnership may himself file with the Registrar the notice referred to
in sub-section (3) if he has reasonable cause to believe that the limited
liability partnership may not file the notice with the Registrar and in
case of any such notice filed by a partner, the Registrar shall obtain a
confirmation to this effect from the limited liability partnership unless
the limited liability partnership has also filed such notice:
Provided that where no confirmation is given by the limited liability
partnership within fifteen days, the registrar shall register the notice
made by a person ceasing to be a partner under this section.
Section-27. Extent of liability of limited liability partnership .–(1) A
limited liability partnership is not bound by anything done by a
partner in dealing with a person if-
(a) the partner in fact has no authority to act for the limited liability
partnership in doing a particular act; andDigitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 16/44
KUMAR Date: 2026.07.04
16:38:08 +0530
(b) the person knows that he has no authority or does not know or
believe him to be a partner of the limited liability partnership.
(2) The limited liability partnership is liable if a partner of a limited
liability partnership is liable to any person as a result of a wrongful act
or omission on his part in the course of the business of the limited
liability partnership or with its authority.
(3) An obligation of the limited liability partnership whether arising in
contract or otherwise, shall be solely the obligation of the limited
liability partnership.
(4) The liabilities of the limited liability partnership shall be met out
of the property of the limited liability partnership.
Section-64. Circumstances in which limited liability partnership may
be wound up by Tribunal.–A limited liability partnership may be
wound up by the Tribunal,–
(a) if the limited liability partnership decides that limited liability
partnership be wound up by the Tribunal;
(b) if, for a period of more than six months, the number of partners of
the limited liability partnership is reduced below two;
(c) [* * *]
(d) if the limited liability partnership has acted against the interests of
the sovereignty and integrity of India, the security of the State or
public order;
(e) if the limited liability partnership has made a default in filing with
the Registrar the Statement of Account and Solvency or annual return
for any five consecutive financial years; or
(f) if the Tribunal is of the opinion that it is just and equitable that the
limited liability partnership be wound up.
After going through Sections 24 to 27 of the Act, it is clear that the
partnership LLP may work for next 6 months without full strength of two
partners and in case, LLP is willing to stop working may seek winding up
of before the Registrar. In fact, plea taken by the defendant that the
partnership firm automatically dissolved by the death of his wife / another
partner has no substance.
Digitally signed
by DEVENDRA
CS (Comm) No. 215/2024 KUMAR
DEVENDRA
Lalit Goel Vs. MCR Build Well LLP Date: 17/44
KUMAR 2026.07.04
16:38:16
+0530
18. So far as authority of the defendant to contest this case is concerned,
Ld. Counsel for plaintiff has argued that no board resolution has been filed
by the defendant to represent the firm / LLP to contest this case, which is
strongly opposed by Ld. Counsel for defendant. However, Section 67 of the
Act prescribes that there must be a notification of central government to
make applicable any provision/s of the Companies Act. Section 179 of the
Companies Act, 2013 prescribes for board resolution of the company to
contest any litigation, which has limited application in case of the
partnership firm LLP. Section 67 of the Act is as under:
Section. 67. Application of the provisions of the Companies Act .–(1)
The Central Government may, by notification in the Official Gazette,
direct that any of the provisions of 39[the Companies Act, 2013 (18 of
2013)] specified in the notification–
(a) shall apply to any limited liability partnership; or
(b) shall apply to any limited liability partnership with such exception,
modification and adaptation, as may be specified, in the notification.
(2) A copy of every notification proposed to be issued under sub-
section (1) shall be laid in draft before each House of Parliament,
while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and
if, before the expiry of the session immediately following the session
or the successive sessions aforesaid, both Houses agree in
disapproving the issue of the notification or both Houses agree in
making any modification in the notification, the notification shall not
be issued or, as the case may be, shall be issued only in such modified
form as may be agreed upon by both the Houses.
19. In fact, there must be a specific notification u/s 67 of the Act to
make it mandatory that a board resolution is required to file or contest a
case by or on behalf of LLP. Plaintiff has not brought into notice of this
court any such notification to make applicable section 179 of the
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 18/44
KUMAR Date:
2026.07.04
16:38:28 +0530
Companies Act, due to it shall be considered that no such resolution is
required. As such, legal proposition has made it clear that dissolution of
LLP is not automatic even after death of one of its partners and there is
no legal requirement of proving any board resolution to represent LLP
firm before the court and suit may be maintained at the behest of single
partner also by the virtue of Section 24(5) of LLP Act, 2008. As such,
this suit is maintainable on behalf of both parties.
20. Now findings on issue no.1 are to be given. The onus to prove this
issue was upon the defendant, though ought to be on the plaintiff as the
plaintiff is bound to prove limitation to avoid consequences of Section 3
of the Limitation Act, 1963. Section 3 of Indian Limitation Act, 1963 is
as under:
Section-3. Bar of limitation.–(1) Subject to the provisions contained
in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred,
and application made after the prescribed period shall be dismissed
although limitation has not been set up as a defence.
(2) For the purposes of this Act,–
(a) a suit is instituted,–
(i) in an ordinary case, when the plaint is presented to
the proper officer;
(ii) in the case of a pauper, when his application for
leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is
being wound up by the court, when the claimant first
sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter-claim, shall be treated as
a separate suit and shall be deemed to have been instituted–
(i) in the case of a set off, on the same date as the suit in
which the set-off is pleaded;
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 19/44
KUMAR Date:
2026.07.04
16:38:33 +0530
(ii) in the case of a counter claim, on the date on which the
counter claim is made in court;
(c) an application by notice of motion in a High Court is made when
the application is presented to the proper officer of that court.
21. Section 3 came into interpretation before Hon’ble Apex Court in case
titled V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao ,
(2005) 4 SCC 613 and relevant observations are as under;
20. The mandate of Section 3 of the Limitation Act is that it is the
duty of the court to dismiss any suit instituted after the prescribed
period of limitation irrespective of the fact that limitation has not been
set up as a defence. If a suit is ex facie barred by the law of limitation,
a court has no choice but to dismiss the same even if the defendant
intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath
Banerjee [(1964) 3 SCR 495;
“Section 3 of the Limitation Act enjoins a court to dismiss any suit
instituted, appeal preferred and application made, after the period of
limitation prescribed therefor by Schedule I irrespective of the fact
whether the opponent had set up the plea of limitation or not. It is the
duty of the court not to proceed with the application if it is made
beyond the period of limitation prescribed. The Court had no choice
and if in construing the necessary provision of the Limitation Act or in
determining which provision of the Limitation Act applies, the
subordinate court comes to an erroneous decision, it is open to the
court in revision to interfere with that conclusion as that conclusion
led the court to assume or not to assume the jurisdiction to proceed
with the determination of that matter.”
After going through abovesaid cases, it stands proved that the limitation is
material to determine a lis and litigation barred by limitation has to be
dismissed without any exception and it shall also be duty of the court to
dismiss such litigation. However, in this case, onus to prove this issue has
been put upon the defendant, due to this issue has to be decided
accordingly.
Digitally
signed by
DEVENDRA
CS (Comm) No. 215/2024
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR
20/44
KUMAR Date:
2026.07.04
16:38:38
+0530
22. Plaintiff has disclosed cause of action in Para 15 of the plaint and
exemption of limitation during corona period in Para 18, whereas both
Paras have been denied by the defendant in written statement. Ld. Counsel
for defendant has argued that the alleged material was supplied in the years
2017 – 2018, whereas this suit has been filed in the year 2024, due to suit is
barred by limitation. It is further argued that limitation to file this suit
expired during corona period itself and if limitation expired during corona,
then only 90 days additional period was granted to the plaintiff to file suit,
however, suit has been filed after a lot of delay in the year 2024, due to suit
is barred by limitation and same is liable to be dismissed.
23. On the other hand, Ld. Counsel for plaintiff has opposed
submissions and has argued that this suit is within limitation, as the
plaintiff supplied material upto 8.01.2018, which was duly entered into
statement of accounts Ex.PW1/B. It is further argued that the defendant
paid a cash amount of Rs. 10,000/- on 10.04.2020, due to a fresh period
of limitation started w.e.f. 11.04.2020 and continued upto 11.04.2023,
whereas the limitation suspended during corona outbreak and after
excluding said period of exemption, this suit is within limitation. On the
other hand, Ld. Counsel for defendant has strongly opposed these
submissions and has strongly disputed cash payment of Rs. 10,000/- and
has argued that this entry has been forged by the plaintiff in ledger just to
enhance period of limitation, otherwise no document like cash voucher
has been proved on record to prove it, due to this entry of Rs. 10,000/- is
liable to be discarded.
Digitally signed
by DEVENDRA
CS (Comm) No. 215/2024 KUMAR
DEVENDRA
Lalit Goel Vs. MCR Build Well LLP Date: 21/44
KUMAR 2026.07.04
16:38:42
+0530
24. Admittedly, this suit is based upon statement of account
Ex.PW1/B containing entries of material supplied by the plaintiff to the
defendant viz-a-viz payments made by the defendant pursuant to such
supply of material. However, the defendant has disputed this supply of
material, though entry of cash payment of Rs. 10,000/- dated 10.04.2020
has been reflected in statemen,t of account. In fact, cash payment of Rs.
10,000/- is just stand-alone transaction during entire period and has also
extended period of limitation, due to authenticity of this entry is
necessary to prove this issue.
25. Admittedly, this suit is based upon statement of accounts/ ledger
containing descriptions of supply of material and payments pursuant to
such supply. However, it is necessary to ascertain law relating to
admissibility of ledger statement/s/ accounts. A landmark judgment titled
Chandradhar Goswami & Ors vs The Gauhati Bank Ltd, 1967 AIR SC 816
deals with law relating to statement of accounts maintained by the banks
viz-a-viz uniliteral account maintained by private entities and relevant
observations are as under;
The main question urged before us is that there is no evidence besides
the certified copy of the account to prove that a sum of Rs. 10,000/-
was advanced to the appellants and therefore in view of s. 34 of the
Evidence Act the appellants cannot be saddled with liability for that
amount. Section 34 is in these terms:-
“Entries in books of account, regularly kept in the course of business,
are relevant whenever they refer to a matter into which the court has
to inquire, but such statements shall not alone be sufficient evidence
to charge any person with liability.”
It is clear from a bare perusal of the section that no person can be
charged with liability merely on the basis of entries in books of
account, even where such books of account are kept in the regular
CS (Comm) No. 215/2024
Lalit Goel Vs. MCR Build Well LLP Digitally signed 22/44
by DEVENDRA
DEVENDRA KUMAR
KUMAR Date: 2026.07.04
16:38:46 +0530
course of business. There has to be further evidence to prove payment
of the money which may appear in the books of account in order that
a person may be charged with liability thereunder, except where the
person to be charged accepts the correctness of the books of account
and does not challenge them. In the present case, however, the
appellants did not accept the correctness of the books of account. We
have already indicated that they went to the. length of saying that the
accounts were not correctly kept, and were fraudulent.
In any case as the appellants had not admitted the correctness of the
accounts filed by the bank, particularly after March 1, 1947, the bank
had to prove payment of Rs. 10,000/- on March 19,1947 if it wanted
to charge the appellants, with liability for that amount, But all that the
bank did was to produce a certified copy of account under s. 4 of the
Bankers’ Books Evidence Act, No. XVIII of 1891. Section 4 of that
Act reads thus-
“Subject to the provisions of this Act, a certified copy of any entry in
a banker’s book shall in all legal proceedings be received as prima
facie evidence of the existence of such entry, and shall be admitted as
evidence of the matters, transactions and accounts therein recorded in
every case where, and to the same extent as, the original entry itself is
now by law admissible, but not further or otherwise”.
It will be clear that s. 4 gives a special privilege to banks and allows
certified copies of their accounts to be produced by them and those
certified copies become prima facie evidence of the existence of the
original entries in the accounts and are admitted as evidence of
matters, transactions and accounts therein, but such admission is only
where, and to the same extent as, the original entry itself would be
admissible by law and not further or otherwise. Original entries alone
under s. 34 of the Evidence Act would not be sufficient to charge any
person with liability and as such copies produced under s. 4 of the
Bankers’ Books Evidence Act obviously cannot charge any person
with liability. Therefore, where the entries are not admitted it is the
duty of the bank if it relies on such entries to charge any person with
liability, to produce evidence in support of the entries to show that the
money was advanced as indicated therein and thereafter the entries
would be of use as corroborative evidence. But no person can be
charged with liability on the basis of mere entries whether the entries
produced are the original entries or copies under s. 4 of the Banker’s
Books Evidence Act.
We are therefore of opinion that in view of s. 34 of the Evidence Act
the appellants cannot be saddled with liability for the sum of Rs.
Digitally
CS (Comm) No. 215/2024 signed by
DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 23/44
KUMAR Date:
2026.07.04
16:38:50
+0530
10,000/- said to have been advanced on March, 19,1947 on the basis
of a mere entry in the amount. Section 34 says that such entry alone
shall not be sufficient evidence, and so some independent evidence
had to be given by the bank to show that this sum was advanced.
What would be the nature of such independent evidence would
certainly depend upon the facts of each case; but there can be no
doubt that some independent evidence to show that advance had been
made has to be given.
26. Further, in case titled M/S. J.K. Synthetics Ltd. vs M/S. Dynamic
Cement Traders, CS(OS) No.782/1998
6. The only averment in the plaint for claiming amount due is that the
amount claimed in the suit is an entry dated 31.3.1995 which is found
in the statement of account of the plaintiff. The statement of account
of the plaintiff has been proved and exhibited as Ex.PW1/50. This is a
statement of account from 1.4.1993 to December, 1997. Another
document, which of course, is not a statement of account but only
some of the entries in the statement of account is Ex.PW1/49. In view
of Section 34 of Indian Evidence Act, 1872, a mere entry in the
statement of account is not sufficient to fasten any liability and the
entries in the statement of account have to be proved by means of the
documents/vouchers of the transaction. Admittedly, the entry dated
31.3.1995 in Ex.PW1/50 for Rs. 69,36,240.36/- has not been
substantiated by means of any document showing as to how and for
what this amount of ` 69,36,240.36/- is due. The Supreme Court in the
judgment reported as Central Bureau of Investigation Vs. V.C. Shukla
& Ors. (1998) 3 SCC 410 has observed that Section 34 is in two parts.
The first part speaks of relevancy of the entries in evidence once the
books of accounts are shown to be regularly kept in the course of
business and the second aspect is that even if it is proved that the
statements of accounts are regularly kept in course of business, yet,
the statement of account/entry alone is not sufficient evidence to
charge a person with liability. The object of law is that mere entries
should not be sufficient to fasten the monetary liability unless
documents of transaction (which would be invoices, challans and
receipts of supply of goods etc) are filed and exhibited in support of
the entries made. I therefore hold that mere entry of ` 69,36,240.36/-
existing in the statement of account in Ex.PW1/50 is not sufficient to
charge the defendant with liability as claimed by the plaintiff in the
suit. Once this entry is not proved, then, even if I take the payment of `
2 lacs made by the defendant on 21/22.4.1995 and as admitted by the
defendant in his cross- examination, will not in any manner help to
prove the existence of debit entry of ` 69,36,240.36/-. Even the plaint
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 24/44
Date:
KUMAR 2026.07.04
16:38:54
+0530
is totally silent as to because of what reason this entry exists i.e for
supply of goods or towards interest or towards any other aspect, and if
so what are such invoices/agreement qua the supply or interest or
other aspects. I therefore hold that the plaintiff has failed to prove the
entries dated 31.3.1995
27. Further, in case titled M/S ICICI Bank Limited vs Kamini Sharma &
Anr., RFA 297/2015, it is held that
14. Section 34 of the Evidence Act clearly provides that the books of
accounts maintained in electronic form are relevant. Under Section
62 of the Evidence Act, original documents constitute primary
evidence. In the context of electronic evidence, printouts of electronic
documents are considered as secondary. However, judicial notice
needs to be taken of the fact that most accounts today are not
maintained in paper form, but electronic form. The primary evidence
could be the server on which the statement of accounts is stored.
These servers may store the statement of accounts of multiple clients
in the hard drive. It would be an impossibility to require the Plaintiff
bank to produce the hard drive of the server in every suit for recovery
filed by it. Under such circumstances, the Plaintiff bank has no option
but to produce the secondary evidence i.e., a printout of statement of
accounts, duly certified by a responsible official of the bank along
with a certificate under Section 65B of the Evidence Act. Needless to
add, the certificate under Section 65B of the Evidence Act has now
become a usual practice in almost all of the suits, inasmuch as, in
every such suit, parties are bound to place reliance on electronic
documents. The mere fact, that the printout is being filed as secondary
evidence along with the necessary certificate, does not make it any
less valid. The said accounts statement would be rebuttable if any
discrepancy is found or pointed out. But in the absence of the same,
there is no reason as to why the statement of accounts filed by the
Plaintiff bank should be disbelieved.
28. In another case titled Om Prakash v. Central Bureau of
Investigation, 2017 VII AD (Del) 649, it is held as under:
“5.18. A conjoint reading of Section 34 of the Indian Evidence Act,
Sections 2(8), 2A and 4 of the Banker’s Book Evidence Act and the
various pronouncements of the Supreme Court lead to the conclusion
that firstly, the prosecution is required to lead admissible evidence to
prove the entries in the books of accounts and after having led
admissible evidence link the same with other evidence on record to
prove the guilt of the accused beyond reasonable doubt. Thus, in caseCS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 25/44
DEVENDRA KUMAR
KUMAR Date:
2026.07.04
16:38:58 +0530
the statements of accounts exhibited on record are accompanied by
certificate as envisaged under Section 2A of the Bankers’ Books
Evidence Act, the statements of accounts would be admissible in
evidence. An objection as to the person exhibiting the said statements
of account i.e. an objection to the mode of proof and not admissibility,
has to be taken at the time of exhibition of the documents. Therefore if
certified copies of the statements of accounts have been exhibited as
per the requirement of Section 2A of the Act, the statement of account
would be admissible and in case no objection to the witness proving
the same is taken at the time when the document is exhibited, the
document would be validly read in evidence. However, if the
statements of accounts have been exhibited without the necessary
certificate as contemplated under Section 2A of the Act, the same
being inadmissible in evidence, even in the absence of an objection
taken as to the mode of proof during trial, this Court cannot read the
same in evidence even though marked as an exhibit.”
In view of abovesaid legal proposition, it is stands proved that ledger
accounts maintained unilaterally does not carry any presumption, until and
unless it is duly authenticated under Banker’s Books Evidence Act, or duly
supported by documents regarding entries made therein.
29. In this case, the plaintiff has relied upon statement of accounts
Ex.PW1/B, which is not duly authenticated by any certificate under
Banker’s Books Evidence Act to raise any presumption, due to it has to be
proved by supporting documents. Plaintiff has relied upon documents
Ex.PW1/A (colly) to support entries of statement of accounts Ex.PW1/B,
but Ex.PW1/A (colly) is not complete document to support all entries of
statement of accounts in terms of sale of edible oils to prove ledger in terms
of judgment titled Chandradhar Goswami & Ors. (supra). In fact, the
defendant has denied every fact and document of the plaintiff except legal
notice, due to the plaintiff was supposed to prove all facts including supply
of material through some documents like acknowledgment of material or e-
Digitally
signed by
DEVENDRA
CS (Comm) No. 215/2024 DEVENDRA KUMAR
Lalit Goel Vs. MCR Build Well LLP KUMAR Date: 26/44
2026.07.04
16:39:02
+0530
way bills regarding delivery of material, which is not proved here.
30. Not only this, Ld. Counsel for defendant has argued that all the
documents relied upon by the plaintiff are copy of electronic documents,
whereas no certificate u/s 65B of Indian Evidence Act, 1872 (Section 63 of
BSA, 2023) has been proved to prove authenticity of these documents, due
to documents could not be proved. On the other hand, Ld. Counsel for
plaintiff has argued that the defendant has not disputed supply of material
and even material supplied to the defendant has been reflected in GST and
copy of GST documents is already on record, which has proved that the
material was supplied to the defendant and documents may not be
discarded merely for the want of certificate u/s 65B of Evidence Act and
plea is liable to be discarded.
31. Admittedly, the plaintiff has relied upon computer generated
invoices Ex.PW1/A (colly), statement of accounts/ ledger Ex.PW1/B and
GST printouts, but no certificate u/s 65B of Evidence Act (now Section
63 of BSA) has been proved on record. Defendant has denied that the
plaintiff ever supplied edible oils or any payment was made by him. As
such, the defendant has denied everything except legal notice, due to
onus to prove supply of material is on the plaintiff. The plaintiff has
relied upon print outs of documents to prove supply of material and
pursuant outstanding, whereas it is to be determined whether the plaintiff
has proved such documents or not.
Section 63 & 64 of BSA, 2023 (Section 65B of Evidence Act) deals with
admissibility of electronic record, which are as under:
Digitally
signed by
CS (Comm) No. 215/2024 DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR
27/44
KUMAR Date:
2026.07.04
16:39:06
+0530
Section 63. Admissibility of electronic records.–(1) Notwithstanding
anything contained in this Adhiniyam, any information contained in
an electronic record which is printed on paper, stored, recorded or
copied in optical or magnetic media or semiconductor memory which
is produced by a computer or any communication device or otherwise
stored, recorded or copied in any electronic form (hereinafter referred
to as the computer output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in any
proceedings, without further proof or production of the original, as
evidence or any contents of the original or of any fact stated therein of
which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a
computer output shall be the following, namely.–
(a) the computer output containing the information was produced by
the computer or communication device during the period over which
the computer or communication device was used regularly to create,
store or process information for the purposes of any activity regularly
carried on over that period by the person having lawful control over
the use of the computer or communication device;
(b) during the said period, information of the kind contained in the
electronic record or of the kind from which the information so
contained is derived was regularly fed into the computer or
communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or
communication device was operating properly or, if not, then in
respect of any period in which it was not operating properly or was
out of operation during that part of the period, was not such as to
affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record
reproduces or is derived from such information fed into the computer
or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or
processing information for the purposes of any activity regularly
carried on over that period as mentioned in clause (a) of sub-section
(2) was regularly performed by means of one or more computers or
communication device, whether–
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information creation or
providing information processing and storage; or
(e) through an intermediary,
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 28/44
DEVENDRA KUMAR
KUMAR Date:
2026.07.04
16:39:10 +0530
all the computers or communication devices used for that purpose
during that period shall be treated for the purposes of this section as
constituting a single computer or communication device; and
references in this section to a computer or communication device shall
be construed accordingly.
(4) In any proceeding where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the
following things shall be submitted along with the electronic record at
each instance where it is being submitted for admission, namely:–
(a) identifying the electronic record containing the statement
and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was
produced by a computer or a communication device referred
to in clauses (a) to (e) of sub-section (3);
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate, and purporting to be
signed by a person in charge of the computer or
communication device or the management of the relevant
activities (whichever is appropriate) and an expert shall be
evidence of any matter stated in the certificate; and for the
purposes of this sub-section it shall be sufficient for a matter
to be stated to the best of the knowledge and belief of the
person stating it in the certificate specified in the Schedule.
(5) For the purposes of this section,–
(a) information shall be taken to be supplied to a computer or
communication device if it is supplied thereto in any
appropriate form and whether it is so supplied directly or (with
or without human intervention) by means of any appropriate
equipment;
(b) a computer output shall be taken to have been produced by
a computer or communication device whether it was produced
by it directly or (with or without human intervention) by
means of any appropriate equipment or by other electronic
means as referred to in clauses (a) to (e) of sub-section (3).
Section 64. Rules as to notice to produce.–Secondary evidence of the
contents of the documents referred to in clause (a) of Section 60, shall
not be given unless the party proposing to give such secondary
evidence has previously given to the party in whose possession or
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 29/44
KUMAR
DEVENDRA
Date:
KUMAR 2026.07.04
16:39:14
+0530
power the document is, or to his advocate or representative, such
notice to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the Court considers reasonable
under the circumstances of the case:
Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the following cases,
or in any other case in which the Court thinks fit to dispense with it:–
(a) when the document to be proved is itself a notice;
(b) when, from the nature of the case, the adverse party must
know that he will be required to produce it;
(c) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force;
(d) when the adverse party or his agent has the original in
Court;
(e) when the adverse party or his agent has admitted the loss of
the document;
(f) when the person in possession of the document is out of
reach of, or not subject to, the process of the Court.
32. Erstwhile section 65B of Indian Evidence Act, 1872 is as under:
“65-B. Admissibility of electronic records.–(1) Notwithstanding
anything contained in this 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
(hereinafter referred to as “the computer output”) shall be deemed to
be also a document, if the conditions mentioned in this section are
satisfied in relation to the information and computer in question and
shall be admissible in any proceedings, without further proof or
production of the original, as evidence or any contents of the original
or of any fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section (1) in respect of a
computer output shall be the following, namely–
(a) the computer output containing the information was produced by
the computer during the period over which the computer was used
regularly to store or process information for the purposes of any
activities regularly carried on over that period by the person having
lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the
electronic record or of the kind from which the information so
contained is derived was regularly fed into the computer in the
ordinary course of the said activities;
Digitally signed
by DEVENDRA
KUMAR
CS (Comm) No. 215/2024 DEVENDRA
Lalit Goel Vs. MCR Build Well LLP Date: 30/44
KUMAR 2026.07.04
16:39:19
+0530
(c) throughout the material part of the said period, the computer was
operating properly or, if not, then in respect of any period in which it
was not operating properly or was out of operation during that part of
the period, was not such as to affect the electronic record or the
accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is
derived from such information fed into the computer in the ordinary
course of the said activities.
(3) Where over any period, the function of storing or processing
information for the purposes of any activities regularly carried on over
that period as mentioned in clause (a) of sub-section (2) was regularly
performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession
over that period; or
(d) in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more
combinations of computers,
all the computers used for that purpose during that period shall be
treated for the purposes of this section as constituting a single
computer; and references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the
following things, that is to say–
(a) identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of
that electronic record as may be appropriate for the purpose of
showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned
in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible
official position in relation to the operation of the relevant device or
the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate; and for the
purposes of this sub-section it shall be sufficient for a matter to be
stated to the best of the knowledge and belief of the person stating it.
Digitally
signed by
DEVENDRA
DEVENDRA KUMAR
CS (Comm) No. 215/2024 KUMAR Date:
Lalit Goel Vs. MCR Build Well LLP 2026.07.04 31/44
16:39:23
+0530
(5) For the purposes of this section–
(a) information shall be taken to be supplied to a computer if it is
supplied thereto in any appropriate form and whether it is so supplied
directly or (with or without human intervention) by means of any
appropriate equipment;
(b) whether in the course of activities carried on by any official,
information is supplied with a view to its being stored or processed
for the purposes of those activities by a computer operated otherwise
than in the course of those activities, that information, if duly supplied
to that computer, shall be taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have been produced by a
computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.
Explanation.–For the purposes of this section any reference to
information being derived from other information shall be a reference
to its being derived there from by calculation, comparison or any
other process.”
Pursual of both sections would show that a certificate u/s 65B of
Evidence Act, which is now Section 63 of BSA, 2023, is mandatory in
nature, as section starts with notwithstanding thereby meaning exclusion
of any other provision under this Act to prove electronic record.
33. Section 65B of Evidence Act came into interpretation in case titled
Smriti Madan Kansagra v. Perry Kansagra, (2021) 12 SCC 289 and
relevant observations are as under:
21.6. The certificate under Section 65-B produced by Smriti merely
states that the content of the emails placed on record were the same as
the content of the emails on her inbox. This certificate does not certify
the source of the messages allegedly received on the Blackberry of
Perry, which were transferred to her cellphone. In the absence of a
certificate in accordance with Section 65-B, with respect to the source
of the messages, we cannot accept the same as being genuine or
authentic.
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 32/44
KUMAR Date:
2026.07.04
16:39:27 +0530
21.7. This Court in a recent decision delivered by a Bench of three
Judges in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal,
(2020) 7 SCC 1 held as under
“61. We may reiterate, therefore, that the certificate required under
Section 65-B(4) is a condition precedent to the admissibility of
evidence by way of electronic record, as correctly held in Anvar
P.V. and incorrectly “clarified” in Shafhi Mohammad. Oral evidence
in the place of such certificate cannot possibly suffice as Section 65-
B(4) is a mandatory requirement of the law. Indeed, the hallowed
principle in Taylor v. Taylor, (1875) LR 1 Ch D 426], which has been
followed in a number of the judgments of this Court, can also be
applied. Section 65-B(4) of the Evidence Act clearly states that
secondary evidence is admissible only if led in the manner stated and
not otherwise. To hold otherwise would render Section 65-B(4)
otiose.”
34. Further in case titled Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal, (2020) 7 SCC 1, it has held that;
52. We may hasten to add that Section 65-B does not speak of
the stage at which such certificate must be furnished to the Court.
In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015)
1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] ,
this Court did observe that such certificate must accompany the
electronic record when the same is produced in evidence. We may
only add that this is so in cases where such certificate could be
procured by the person seeking to rely upon an electronic record.
However, in cases where either a defective certificate is given, or in
cases where such certificate has been demanded and is not given by
the person concerned, the Judge conducting the trial must summon the
person/persons referred to in Section 65-B(4) of the Evidence Act, and
require that such certificate be given by such person/persons. This, the
trial Judge ought to do when the electronic record is produced in
evidence before him without the requisite certificate in the
circumstances aforementioned. This is, of course, subject to discretion
being exercised in civil cases in accordance with law, and in
accordance with the requirements of justice on the facts of each case.
When it comes to criminal trials, it is important to keep in mind the
general principle that the accused must be supplied all documents that
the prosecution seeks to rely upon before commencement of the trial,
under the relevant sections of the CrPC.
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP KUMAR 33/44
DEVENDRA
Date:
KUMAR 2026.07.04
16:39:32
+0530
61. We may reiterate, therefore, that the certificate required under
Section 65-B(4) is a condition precedent to the admissibility of
evidence by way of electronic record, as correctly held in Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC
(Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and
incorrectly “clarified” in Shafhi Mohammad [Shafhi
Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 :
(2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC
(Cri) 860 : (2018) 1 SCC (Cri) 865] . Oral evidence in the place of
such certificate cannot possibly suffice as Section 65-B(4) is a
mandatory requirement of the law. Indeed, the hallowed principle
in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] , which
has been followed in a number of the judgments of this Court, can
also be applied. Section 65-B(4) of the Evidence Act clearly states
that secondary evidence is admissible only if led in the manner stated
and not otherwise. To hold otherwise would render Section 65-B(4)
otiose.
35. In view abovesaid judgments, it is clear that a certificate u/s 65B
of Evidence Act/ 63 of BSA is mandatory to prove any electronic
evidence / record. No doubt, no stage has been provided to prove a
certificate u/s 65B of Evidence Act / BSA, yet Section 64 of BSA
prescribes as to who electronic secondary evidence is to be proved.
However, in this case, no certificate u/s 65B of Evidence Act / 63 of
BSA has been proved by the plaintiff to prove invoices Ex.PW1/A
(colly), statement of accounts Ex.PW1/B and GST record Ex.PW1/C
(colly). All documents are just print outs and no witness has been
examined to prove it, due to the plaintiff has failed to prove authenticity
of documents relied upon by the plaintiff. In fact, there is no authenticity
of electronic record without certification and documents relied upon by
the plaintiff cannot be said to be authentic to prove the case of the
plaintiff.
Digitally
signed by
DEVENDRA
DEVENDRA KUMAR
KUMAR Date:
CS (Comm) No. 215/2024 2026.07.04
Lalit Goel Vs. MCR Build Well LLP 34/44
16:39:36
+0530
36. After proving that all documents are not admissible in evidence,
now plea of limitation of the defendant based upon statement of accounts
Ex.PW1/B is to be considered. Ld. Counsel for plaintiff has argued that
the defendant made part payment of Rs. 10,000/- in cash, which
extended period of limitation for further 3 years. It is further argued that
last transaction between the parties took place on 18.08.2018, whereas
cash payment of Rs. 10,000/- was made on 10.04.2020 and limitation to
file this suit shall start to run from last payment in terms of Section 19 of
Limitation Act and this suit is within limitation. On the other hand, Ld.
Counsel for defendant has argued that the plaintiff has failed to prove
that statement of accounts was maintained in regular course of business
and there is no proof that the defendant ever made any cash payment,
due to this suit is barred by limitation and same is liable to be dismissed.
37. Admittedly, statement of accounts of the plaintiff is neither
certified u/s 2 A of Banker’s Books Evidence Act nor supported by
certificate u/s 65B of Evidence Act, or any other document supporting
entries of the accounts, accordingly statement of accounts has no
authenticity to prove entries including entry of cash payment of Rs.
10,000/-. No doubt, the defendant made some more payments through
cheques but those payments are also denied, whereas the plaintiff has not
examined any witness to prove such payments made by the defendant.
However, main dispute is of payment of Rs. 10,000/- in cash which
extended period of limitation, due to it has to be proved by the plaintiff
that the defendant made this cash payment.
Digitally
signed by
DEVENDRA
CS (Comm) No. 215/2024 DEVENDRA KUMAR
Lalit Goel Vs. MCR Build Well LLP KUMAR Date: 35/44
2026.07.04
16:39:40
+0530
38. Plaintiff has examined PW1 to prove part payment of Rs. 10,000/-
by the defendant and has deposed that the defendant made last payment
in the month of April, 2020, whereas he has filed this case in the year
2024. It is further deposed that the payment of Rs. 10,000/- was made in
cash and has been reflected in cash book and audit report, whereas no
cash book or audit report has been produced or proved before the court
despite the fact that cross examination was also deferred for next date of
hearing. Rather, on next date, PW1 deposed that there was no agreement
to supply goods and last business discussion took place in the year 2016-
17. It is further deposed that accountant was maintaining accounts but
copy of statement of account was never sent to the defendant. PW1 has
admitted that payment of Rs. 10,000/- was stand-alone cash transaction.
Contrary to it, DW1 was sticked to his stand that no payment was made
in cash, whereas the plaintiff has neither placed on record his bank
statement nor put any suggestion to DW1 that he paid cash payment of
Rs. 10,000/-. In fact, no suggestion has been put to DW1 to corroborate
the version of the plaintiff that the defendant ever paid cash amount of
Rs. 10,000/- in terms of section 19 of Limitation Act to enhance period
of limitation. In the absence of any suggestion or cash voucher / book
regarding cash payment of Rs. 10,000/-, it could not be proved that the
defendant ever made any cash amount of Rs.10,000/-.
39. This suit has been filed on the basis of statement of accounts
Ex.PW1/B, as per which, last payment was made by the defendant on
10.01.2018, whereas this suit has been filed on 26.07.2024 i.e. beyond
the period of 3 years, as cash payment could not be proved. However,
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP by DEVENDRA 36/44
DEVENDRA KUMAR
KUMAR Date:
2026.07.04
16:39:44 +0530
Ld. Counsel for plaintiff has argued that limitation to file litigations
suspended by Hon’ble Apex Court during corona period and period from
15.03.2020 to 28.02.2022 excluded from limitation and suit has been
filed within remaining period and is within limitation. On the other hand,
Ld. Counsel for defendant has argued that the limitation started from the
last payment and expired during corona period, due to merely 90 days
period was available to the plaintiff to file this suit, whereas suit has
been filed after a lot of delay and this suit is liable to be dismissed.
40. Admittedly, last payment was made by the defendant on 10.01.2018
(Ex.PW1/B) and was going to expire on 10.01.2021. However, during
corona outbreak, the period of limitation remained suspended during
15.03.2020 to 28.02.2022 and was excluded from limitation. To ascertain
excluded limitation, it is necessary to go through judgment dealing with
exclusion of corona period titled Cognizance for Extension of Limitation,
In re, (2022) 3 SCC 117 as under:
5. Taking into consideration the arguments advanced by the learned
counsel and the impact of the surge of the virus on public health and
adversities faced by litigants in the prevailing conditions, we deem it
appropriate to dispose of MA No. 21 of 2022 with the following
directions:
5.1. The order dated 23-3-2020 [Cognizance for Extension of
Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] is
restored and in continuation of the subsequent orders dated 8-3-2021
[Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 :
(2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC
(L&S) 50] , 27-4-2021 [Cognizance for Extension of Limitation, In re,
(2021) 17 SCC 231 : 2021 SCC OnLine SC 373] and 23-9-2021
[Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC
947] , it is directed that the period from 15-3-2020 till 28-2-2022 shall
stand excluded for the purposes of limitation as may be prescribed
under any general or special laws in respect of all judicial or quasi-
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP DEVENDRA by DEVENDRA 37/44
KUMAR
KUMAR Date: 2026.07.04
16:39:50 +0530
judicial proceedings.
5.2. Consequently, the balance period of limitation remaining as on 3-
10-2021, if any, shall become available with effect from 1-3-2022.
5.3. In cases where the limitation would have expired during the
period between 15-3-2020 till 28-2-2022, notwithstanding the actual
balance period of limitation remaining, all persons shall have a
limitation period of 90 days from 1-3-2022. In the event the actual
balance period of limitation remaining, with effect from 1-3-2022 is
greater than 90 days, that longer period shall apply.
5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022
shall also stand excluded in computing the periods prescribed under
Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996,
Section 12-A of the Commercial Courts Act, 2015 and provisos (b)
and (c) of Section 138 of the Negotiable Instruments Act, 1881 and
any other laws, which prescribe period(s) of limitation for instituting
proceedings, outer limits (within which the court or tribunal can
condone delay) and termination of proceedings.
In view of abovesaid judgment, it is clear that the limitation to file all
suits / proceedings remained halted during corona period. However, if the
period of limitation was going to expire during corona period, then rest of
the period of limitation was available even after corona restriction. As such,
if limitation was going to expire during corona period, then additional
period of 90 days was granted to the parties to file a litigation, which
suggests that limitation to file suit was running and also expired, due to
additional period of 90 days was granted and not entire period.
41. In this case, period of limitation was started w.e.f. 10.01.2018 and
was going to expire on 10.01.2021 thereby meaning that limitation to file
suit was going to expire during exemption period from 15.03.2020 to
29.02.2022, due to the plaintiff got only additional period of 90 days to file
Digitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 38/44
KUMAR Date: 2026.07.04
16:39:54 +0530
this suit in terms of Clause 5.3 of judgment title Cognizance for Extension
of Limitation, In re, (2022) 3 SCC 117. As such, suit was to be filed within
90 additional days w.e.f. 10.01.2021 to 10.04.2021, whereas suit has been
filed on 29.07.2024, which is definitely barred by limitation. As such, the
defendant has discharged the onus to prove this issue and issue no.1 is
decided in favor of the defendant and against the plaintiff.
42. ISSUES No. 2 & 3 – The onus to prove issue no.2 was put upon
the defendant, whereas issue no.3 was to be proved by the plaintiff. Both
the issues are interrelated due to same are being taken up together. To
discharge the onus, the defendant has examined himself as DW1 and has
also cross examined PW1. Defendant has pleaded that he had no privity
of contract with the plaintiff, as the plaintiff never supplied edible oils
and rather his firm was dealing in construction business. Though the
defendant has not proved any document to prove business of firm, yet
onus to prove supply of edible oils was upon the plaintiff, as it is case of
the plaintiff that he supplied edible oils to the defendant. Plaintiff has
alleged that he supplied edible oils to the defendant but the defendant
failed to pay total outstanding amount and is liable to pay outstanding
amount of Rs. 5,67,056/-.
Before deciding the liability of the defendant, it is necessary to ascertain
legal proposition to discharge onus to prove a fact. Section 104 – 107 of
BSA, 2023 deal with burden of proof viz-a-viz onus of proof are as
under:
Section-104. 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, and when a person is boundDigitally signed
CS (Comm) No. 215/2024 by DEVENDRA
Lalit Goel Vs. MCR Build Well LLP DEVENDRA KUMAR 39/44
KUMAR Date:
2026.07.04
16:39:58 +0530
to prove the existence of any fact, it is said that the burden of proof
lies on that person.
Illustrations.
(a) A desires a Court to give judgment that B shall be punished for a
crime which A says B has committed. A must prove that B has
committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain
land in the possession of B, by reason of facts which he asserts, and
which B denies, to be true. A must prove the existence of those facts.
Section – 105. 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.
Illustrations.
(a) A sues B for land of which B is in possession, and which, as A asserts,
was left to A by the will of C, B’s father. If no evidence were given on
either side, B would be entitled to retain his possession. Therefore, the
burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is
admitted, but B says that it was obtained by fraud, which A denies. If
no evidence were given on either side, A would succeed, as the bond
is not disputed and the fraud is not proved. Therefore, the burden of
proof is on B.
Section – 106. 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 law that the proof of that fact shall lie on any
particular person.
Illustration.
A prosecutes B for theft, and wishes the Court to believe that B
admitted the theft to C. A must prove the admission. B wishes the
Court to believe that, at the time in question, he was elsewhere. He
must prove it.
Section-107. The burden of proving any fact necessary to be proved in
order to enable any person to give evidence of any other fact is on the
person who wishes to give such evidence.
Digitally
signed by
DEVENDRA
CS (Comm) No. 215/2024 DEVENDRA KUMAR
Lalit Goel Vs. MCR Build Well LLP KUMAR Date: 40/44
2026.07.04
16:40:01
+0530
Illustrations.
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove, by secondary evidence, the contents of a lost
document. A must prove that the document has been lost.
43. The distinction between burden of proof and onus of proof has been
dealt with by Hon’ble Apex Court in case titled Anil Rishi vs Gurbaksh
Singh, AIR 2006 SC 1971 as under:
The initial burden of proof would be on the plaintiff in view
of Section 101 of the Evidence Act, (now 104 of BSA) which reads as
under:-
“Sec. 101. Burden of proof. 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.
When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.”
In terms of the said provision, the burden of proving the fact rests on
the party who substantially asserts the affirmative issues and not the
party who denies it. The said rule may not be universal in its
application and there may be exception thereto. The learned trial
Court and the High Court proceeded on the basis that the defendant
was in a dominating position and there had been a fiduciary
relationship between the parties. The appellant in his written statement
denied and disputed the said averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis
of the pleadings. The defendant-appellant having not admitted or
acknowledged the fiduciary relationship between the parties,
indisputably, the relationship between the parties itself would be an
issue. The suit will fail if both the parties do not adduce any evidence,
in view of Section 102 of the Evidence Act. Thus, ordinarily, the
burden of proof would be on the party who asserts the affirmative of
the issue and it rests, after evidence is gone into, upon the party
against whom, at the time the question arises, judgment would be
given, if no further evidence were to be adduced by either side.
Digitally signed
by DEVENDRA
CS (Comm) No. 215/2024 DEVENDRA KUMAR
Lalit Goel Vs. MCR Build Well LLP KUMAR Date: 41/44
2026.07.04
16:40:05
+0530
There is another aspect of the matter which should be borne in mind.
A distinction exists between a burden of proof and onus of proof. The
right to begin follows onus probandi. It assumes importance in the
early stage of a case. The question of onus of proof has greater force,
where the question is which party is to begin. Burden of proof is used
in three ways : (i) to indicate the duty of bringing forward evidence in
support of a proposition at the beginning or later; (ii) to make that of
establishing a proposition as against all counter evidence; and (iii) an
indiscriminate use in which it may mean either or both of the others.
The elementary rule is Section 101 is inflexible. In terms of Section
102 the initial onus is always on the plaintiff and if he discharges that
onus and makes out a case which entitles him to a relief, the onus
shifts to the defendant to prove those circumstances, if any, which
would disentitle the plaintiff to the same.
44. Further, in case titled Parimal vs Veena @ Bharti, AIR 2011 SC
1150, it has held that;
15. The provisions of Section 101 of the Evidence Act provide that the
burden of proof of the facts rests on the party who substantially
asserts it and not on the party who denies it. In fact, burden of proof
means that a party has to prove an allegation before he is entitled to a
judgment in his favour. Section 103 provides that 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 special law that
the proof of that fact shall lie on any particular person. The provision
of Section 103 amplifies the general rule of Section 101 that the
burden of proof lies on the person who asserts the affirmative of the
facts in issue.
45. In view of abovesaid legal proposition, it stands proved that initial
burden to prove a fact is always on the party who alleges said fact and this
onus may shift upon opposite party, only if initial onus is discharged. Civil
cases are to be proved on the basis of principle of preponderances of
probabilities and onus to prove a fact in such cases is not so heavy as in
criminal case. Here, if the plaintiff discharge initial onus to establish facts
pertaining to supply of material, then onus shall shift upon the defendant to
rebut such onus and process shall continue till supply of material is proved
CS (Comm) No. 215/2024 Digitally signed
Lalit Goel Vs. MCR Build Well LLP 42/44
DEVENDRA by DEVENDRA
KUMAR
KUMAR Date: 2026.07.04
16:40:10 +0530
or disproved. In fact, the plaintiff was supposed to prove by positive
evidence that he supplied edible oils to the defendant against invoices
Ex.PW1/A (colly) and the defendant is liable to pay outstanding amount of
Rs. 5,67,056/, whereas the plaintiff has failed to prove supply of material,
or that the defendant ever made any part payment against supply of such
material, as disclosed in statement of accounts Ex.PW1/B. Contrary to it,
the plaintiff has failed to prove electronic evidence relied upon to prove this
case and has not filed any certificate u/s 65B of Evidence Act, 1872.
46. As such, the plaintiff has failed to discharge the onus to prove that he
ever supplied the material / edible oils and is entitled for recovery of suit
amount. Accordingly, the defendant has discharged the onus that there was
no privity of contract between the parties, whereas the plaintiff has failed to
discharge the onus to prove issue no.3 that he supplied the material and
entitled for recovery of suit amount. As such, the defendant has discharged
the onus to prove issue no.2, whereas the plaintiff has failed to discharge
the onus to prove issue no.3 and both the issues are decided in favor of the
defendant and against the plaintiff.
47. ISSUE NO.4- The onus to prove this issue was put upon the plaintiff
but the plaintiff has failed to discharge the onus to prove issue no.3 that the
defendant is liable to pay suit amount, accordingly payment of interest
against outstanding amount is out of question. As such, the plaintiff has
failed to discharge the onus to prove this issue and issue no.4 is also
decided against the plaintiff and in favor of the defendant.
Digitally
signed by
DEVENDRA
CS (Comm) No. 215/2024 DEVENDRA KUMAR
Lalit Goel Vs. MCR Build Well LLP KUMAR Date: 43/44
2026.07.04
16:40:15
+0530
48. Relief :- Plaintiff has failed to discharge the onus to prove Issues no.
3 & 4, whereas the defendant has discharged the onus to prove issues no. 1
& 2 accordingly, the plaintiff is not entitled for any relief, hence suit is
hereby dismissed. No such order of cost. Decree sheet be prepared.
49. File be consigned to Record Room after necessary compliance.
Digitally signed
by DEVENDRA
DEVENDRA KUMAR
KUMAR Date:
ANNOUNCED IN OPEN COURT 2026.07.04
16:40:22 +0530
ON 04th day of July, 2026
(DEVENDER KUMAR)
District Judge (Commercial Court-01)
East District
Karkardooma Courts, Delhi
CS (Comm) No. 215/2024
Lalit Goel Vs. MCR Build Well LLP 44/44
