Delhi District Court
Mohan Meakin Limited vs Harvinder And Company on 13 February, 2026
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) No. 226/2024
CNR No. DLWT010019542024
13.02.2026
Mohan Meakin Limited,
Through its authorized signatory,
Mr. Santosh Kumar,
Registered address:
Solan Brewery, P.O. Solan,
Himachal Pradesh-173214
Also at:-
7/16, Kirti Nagar Industrial Area,
Delhi-110015
....Plaintiff
Vs.
Mr. Harvinder Singh Sethi,
Proprietor of Harvinder & Company
Office at:
J 12/37, Rajauri Garden,
Delhi-110027
Also at:
D-65/66, Mayapuri Industrial Area,
Phase-II, Delhi-110064
Also at:
Plot No. 139, Sector-20, Dwarka,
New Delhi-110075.
....Defendant.
Date of filing : 04.03.2024
Date of arguments : 12.02.2026
Date of judgment : 13.02.2026
COMMERCIAL SUIT FOR RECOVERY OF Rs. 35,23,985.64/-
ALONGWITH PENDENTE LITE AND FUTURE INTEREST.
JUDGMENT:
CS (Comm.) No. 226/2024 -1-
1. Vide this judgment, I am deciding the suit for recovery of
Rs. 35,23,985.64/- along with pendentelite and future interest
filed by the plaintiff against the defendant.
2. The essential facts for disposal of the present suit are as
that the plaintiff is a public limited company registered and
incorporated under the erstwhile India Companies Act, 1913 and
is engaged in the business of manufacturing and selling alcoholic
and non-alcoholic beverages and other items. Plaintiff is having
office at Solan Brewery, PO- Solan, Himachal Prad3sh and
carrying its business from 7/16, Kirti Nagar, Industrial Area,
Delhi-110005. Mr. Santosh Kumar, Sales Manager of the plaintiff
company is duly authorized by the Board of Directors of the
plaintiff company vide Board Resolution dated 14.08.2021 and
power of attorney dated 22.09.2023 to institute legal actions,
proceedings and to do all other acts, deeds and things necessary
for the proper conduct and the proceedings of the present suit at
all stages. The defendant is actively responsible for the conduct
of the business and approached the plaintiff company from time
to time for supply of Indian Made Foreign Liquor (IMFL). The
defendant has assured and made firm representation to the
plaintiff that all the payments against the sales made by the
plaintiff would be promptly cleared. The defendant agreed to
place orders to the plaintiff company for the supply of goods to
the defendant. Upon validating the terms and conditions as
mentioned in the invoices, a contract came into existence. The
defendant placed several orders for delivery of goods through
government site of Department of Excise, Entertainment &
Luxury Tax, Govt. of Delhi. The defendant was supplied goods
CS (Comm.) No. 226/2024 -2-
from time to time and the defendant also made part payments of
the amount due, the last payment is being made on 25.02.2021.
It is also agreed between the parties to maintain a running
account. The defendant had accepted the goods without any
defect/ shortage or any deficiency. The goods have been supplied
by the plaintiff to the defendant through the invoices which are as
under:-
S. No. Particulars Amount
1. Tax Invoice No. IN2021002507 dated Rs. 13,75,892.70/-
04.01.2021
2. Tax Invoice No. IN2021000569 dated Rs. 1,12,041.83/-
04.01.2021
3. Tax Invoice No. IN2021002702 dated Rs. 5,51,676.65/-
11.01.2021
4. Tax Invoice No. IN2021000642 dated Rs. 1,12,041.83/-
14.01.2021
5. Tax Invoice No. IN2021002974 dated Rs. 3,03,108.32/-
19.01.2021
6. Tax Invoice No. IN2021003154 dated Rs. 8,87,005.23/-
25.01.2021
7. Tax Invoice No. IN2021003526 dated Rs. 1,31,786.82/-
13.02.2021
8. Tax Invoice No. IN2021003596 dated Rs. 2,23,171.62/-
21.02.2021
As per the plaintiff a sum of Rs. 35,23,985.64/- was due
towards the defendant. The plaintiff is also entitled to interest on
the amount of Rs. 35,23,985.64/- @ 18% per annum. The
plaintiff has also opted for pre-institution mediation and
settlement on 09.10.2023 but no settlement was arrived and non-
starter report dated 30.11.2023 was issued. As per the plaintiff,
the defendant approached the plaintiff for the supply of goods at
the office of the plaintiff i.e. at 7/16, Kirti Nagar, Industrial Area,
Delhi-110015. The plaintiff has excise bonded warehouse at 7/16,
CS (Comm.) No. 226/2024 -3-
Kirti Nagar, Industrial Area, Delhi-110015 from where the said
goods were supplied to the defendant. The agreement for
purchase/ supply between the parties arrived at the
office/business place of the plaintiff. The goods were supplied by
the plaintiff from its Delhi office. On the invoices, it is mentioned
that “dispute if any, subject to Delhi jurisdiction only “. It is
prayed by the plaintiff to pass a decree of Rs. 35,23,985.64/- in
its favour and against the defendant. Plaintiff has also claimed
recovery of Rs. 17,16,088.46/- as interest @ 18% per annum
from the date on which the amount became due till the date of
filing of the present suit. Plaintiff has also claimed pendente lite
and future interest @ 18% per annum till realization of the
amount.
3. Defendant has filed written statement taking preliminary
objections that plaintiff has not come to the court with clean
hands. The suit is based on false and fabricated documents.
Invoices have been raised without purchase orders. There is no
signatures or receiving on the invoices. The invoices have been
forged by the plaintiff to harass the defendant. The plaintiff has
never supplied goods to the defendant. A bare perusal of the
transport permits do not show any vehicle number and place of
dispatch, arrival time or any receiver’s signature. It is mentioned
that as per Section 31 to 36 of Sale of Goods Act, 1930, the
delivery of goods is required to be established. It is also
mentioned that after the change in the Excise Policy the
defendant is no where involved in the liquor business and false
suit has been filed. The statement of truth filed on record is not
proper and not as per the provisions of Commercial Courts Act,
CS (Comm.) No. 226/2024 -4-
2015. The account statement filed before this court is forged and
fabricated and is not a running statement of account. The
limitation will start from the date of invoice and not from the
date of last payment. This court has no jurisdiction to try and
entertain the present suit. The defendant was having its office at
Sector-20, Dwarka, New Delhi and the alleged goods were
supplied by the plaintiff at Sector-20, Dwarka, New Delhi, so no
cause of action has arose at the office at 7/16, Kirti Nagar
Industrial Area, Delhi-110015. There is no reference on the
alleged invoices that the goods were supplied from Kirti Nagar,
Delhi. Plaintiff has concealed the material facts.
4. In reply on merits, it is denied that plaintiff is a public
limited company registered or incorporated under the erstwhile
Indian Companies Act. It is denied that plaintiff company is
involved in the business of manufacturing or selling alcoholic or
non-alcoholic beverages and other items. The plaintiff is having
its office at Himachal Pradesh having TAN Number of
Ghaziabad, UP. It is denied that Sh. Santosh Kumar is duly
authorised by the Board of Directors of the plaintiff company
vide Board Resolution dated 14.08.2021 or Power of attorney
dated 22.09.2023 to institute legal proceedings by or against the
plaintiff company. It is mentioned that defendant has never
approached the plaintiff company for supply of IMFL at any
point of time. No running account was maintained between the
parties. It is denied that the defendant had specifically assured or
made firm representation to the plaintiff that all the payments
against the sales made by the plaintiff would be promptly
cleared. The defendant has made payment of the goods purchased
CS (Comm.) No. 226/2024 -5-
by him and made advance payments to the plaintiff in order to
get the order in time. Plaintiff has forged and fabricated the
invoices and the goods against the said invoices were never
delivered to the defendant. Defendant has never purchased IMFL
on credit basis. It is denied that the plaintiff and defendant vide
invoices had agreed that the payment of invoices was to be made
within an interest of 18% per annum in the event of default. The
defendant has made bill to bill payment and the defendant has not
purchased goods on credit basis at any point of time. The terms
and conditions on the invoices as alleged are totally self created
and unilateral and the defendant has never signed the said invoice
at any point of time. There is no contract between the parties.
The statement of account is forged and fabricated. It is mentioned
that the defendant has received the goods from the plaintiff and
the same is against proper acknowledgment. Goods supplied by
the plaintiff were received by the defendant in broken condition.
The plaintiff has not placed on record any acknowledgment
regarding the delivery of the goods to the defendant which shows
that no goods were supplied to the defendant. The transport
permits are false and fabricated. There is no liability of the
defendant to pay any amount to the plaintiff. It is denied that
plaintiff is entitled to any interest on the amount of Rs.
35,23,985.64/-. As per the defendant, he had made bill to bill
wise payment to the plaintiff and he had not purchased goods on
credit basis at any point of time. It is denied that plaintiff had
approached for pre-institution mediation and settlement on
09.10.2023. All other averments of the plaint are denied.
Dismissal of suit is prayed by the defendant.
CS (Comm.) No. 226/2024 -6-
5. The plaintiff has filed replication to the written statement
filed by the defendant and controverted the allegations made in
the written statement and further reaffirmed the averments made
in the plaint.
6. On the basis of pleadings of the parties, following issues
were framed by this court on 14.07.2025, which are as under:-
(i) Whether this Court has jurisdiction to try and entertain
the present suit ? (OPP)
(ii) Whether the present suit is within limitation ? (OPP)
(iii) Whether the plaintiff is entitled for recovery of Rs.
35,23,985.64 paise from the defendant, as prayed ? (OPP)
(iv) Whether the plaintiff is entitled to the interest on the
amount of Rs. 35,23,985.64 paise , if yes then at what rate
and for what period ? (OPP)
(v) Relief.
7. In evidence Sh. Santosh Kumar, AR of the plaintiff
appeared as PW-1. This witness has filed affidavit on the lines of
plaint. This witness has proved Company Master Data as Ex.
PW-1/1, Certificate of incorporation as Ex. PW-1/2 (OSR), True
copy of Board Resolution as Ex. PW-1/3, Power of attorney as
Ex. PW-1/4, Computer generated GST details of the defendant
which is already Ex. P-1, True copies of the invoices along with
transport permit as Ex. PW-1/6 to Ex. PW-1/13 (colly), True
copy of ledger account of plaintiff as Ex. PW-1/14, affidavit u/s
65B of Indian Evidence Act as Ex. PW-1/15, Copy of Non-
Starter Report as Ex. PW-1/16, Interest calculation sheet as Ex.
PW-1/17 and Affidavit under Order XI Rule 6(3) of the
Commercial Court Act as Ex. PW-1/18
CS (Comm.) No. 226/2024 -7-
8. This witness is duly cross examined by Ld. Counsel for
defendant. In cross examination, this witness has admitted that
plaintiff company is registered listed company. He has stated
that the plaintiff company might have maintained the minutes
book. This witness has stated that he has not brought the relevant
minute books in which the Board Resolution dated 14.08.2021
has been mentioned. This witness has stated that he is the Area
Sales Manager of plaintiff company for Delhi Region and his
place of sitting is at 7/16, Kirti Nagar, Industrial Area,
Delhi-110015. This witness has stated that he has not filed his
appointment letter alongwith the plaint. He has stated that Mr.
Suraj looks after the Account department/ work in the plaintiff
company. This witness has stated that he was only looking after
the dealings/ transactions with the defendant company. This
witness has stated that he has neither prepared the ledger account
Ex. PW-1/14 nor raised any invoices Ex. PW-1/6 to Ex. PW-1/13
(colly) as filed on the record. This witness has stated that he has
not filed any document to show as to which work was looked
after by him in the plaintiff company. He has admitted that no
agreement was executed between the plaintiff and the defendant.
He has stated that the plaintiff and the defendant are having
regular dealings since the year 2002 approximately. He has
stated that the plaintiff company used to supply the material to
the defendant at Plot No. 139, Sector 20, Dwarka, New Delhi.
This witness has admitted that he has never went to the above
said address of the defendant for supply of the material. This
witness has admitted that he has never supplied the material
personally to the defendant. He has voluntarily stated that same is
sent through Transporter and delivery man. This witness has
CS (Comm.) No. 226/2024 -8-
stated that the plaintiff company has generated the invoices upon
the defendant since beginning i.e. in the year 2002
approximately. He has stated that all the records pertaining to the
said invoices are kept at the plaintiff’s office at Kirti Nagar, New
Delhi. He has stated that the plaintiff company is having all the
invoices as generated by it prior to 04.01.2021. He has stated that
the plaintiff has not filed the invoices prior to 04.01.2021 as the
payment pertaining to same is already received by the plaintiff.
This witness has admitted that the amount of Rs. 266781.60 paise
as mentioned on Ex. PW-1/8 is duly recorded at point-A. He has
also admitted that the amount of Rs. 437853.60 paise as
mentioned on Ex. PW-1/11 is duly recorded at point-B. This
witness has brought the documents i.e. invoices for the period
from 2015 to 2021 and these invoices are exhibited as
Ex.PW1/DX1. This witness has admitted that Ex. PW1/DX1 are
not generated by him. He has voluntarily stated that the same are
generated by the Accountant. He has admitted that Ex.PW1/DX1
(invoices) do not bear any receiving of the defendant. He has
voluntarily stated that the receipt of the invoices are
automatically received through Excise Portal. This witness has
stated that he has not brought or placed on record the receiving
from the Excise Portal with regard to Ex.PW1/DX1. He has
stated that the plaintiff company has not given any legal notice to
the defendant with regard to any claim qua Ex.PW1/DX1. He has
voluntarily stated that there is no dispute qua Ex.PW1/DX1 and
the same is only for the invoices already filed Ex.PW1/6 to
Ex.PW1/13. This witness has admitted that he has not prepared
the vouchers as maintained by the plaintiff in its accounting
standard with regard to payments received qua Ex.PW1/DX1.
CS (Comm.) No. 226/2024 -9-
He has voluntarily stated that the same is prepared by Accountant
namely Sh. Suraj. He has stated that the Excise Portal as referred
by him can be accessed by the party who is having login ID and
password with it. He has admitted that any business, dealing,
transactions etc. as made by the plaintiff company can only be
accessed by the plaintiff company and the defendant company or
any other third party can not view or assess or take print out of
the same. He has stated that there is no written agreement
between the parties as mentioned by him in para 4 of his affidavit
Ex.PW1/A. He has voluntarily stated that there was a verbal
agreement. He has stated that the plaintiff company had sent the
ledger account to the defendant company regularly through
Accounts Department. This witness has admitted that he has not
filed any such e-mail showing the sending of ledger account to
the defendant company. This witness has admitted that he has not
sent any such email from his official ID to the defendant
company. He has admitted that no invoice number is mentioned
on the Ex.PW1/6 to Ex.PW1/13 i.e. page no. 41, 43, 45, 47, 49,
51,53 and 55. He has admitted that there is no receiving or
acknowledgment of the defendant company on the invoices
Ex.PW1/6 to Ex.PW1/13 i.e. page no. 41, 43, 45, 47, 49, 51,53
and 55. He has stated that the alleged material as mentioned in
invoices Ex.PW1/6 to Ex.PW1/13 i.e. page no. 41, 43, 45, 47, 49,
51,53 and 55 was not supplied by the plaintiff company from its
own vehicle. He has voluntarily stated that the same is supplied
through Transporter. This witness has stated that he does not
remember the name and details of the Transporter through whom the
plaintiff company has allegedly supplied the material as mentioned in
invoices Ex.PW1/6 to Ex.PW1/13 i.e. page no. 42,44,46,48,50,52,54
CS (Comm.) No. 226/2024 -10-
& 56. This witness has stated that he has not placed on record
any bilty allegedly supplied/given by the Transporter for showing
supply of the material as mentioned in invoices Ex.PW1/6 to
Ex.PW1/13 i.e. page no. 42, 44, 46, 48, 50, 52, 54 & 56. He has
voluntarily stated that the original copy of the Transport Permit
bears the vehicle number along with name of the delivery man by
putting a stamp on the same. He has stated that the said original
copy of the Transport Permit and the Transport Permits as filed
by plaintiff company at page no. 42, 44, 46, 48, 50, 52, 54 & 56
are different. He has voluntarily stated that the transport permits
as filed by plaintiff company are the receipt of the same. This
witness has admitted that he has not prepared the Ledger Account
i.e. Ex.PW1/14. He has voluntarily stated that the same is
prepared by their Accountant. He has admitted that Ex.PW1/14
does not bear sign and stamp of the said Accountant or the
Auditor of the company and is also not certified by the Charted
Accountant. This witness has admitted that he has not prepared
the interest calculation sheet i.e. Ex.PW1/17. He has voluntarily
stated that the same is prepared by their Accountant. He has
admitted that Ex.PW1/17 does not bear sign and stamp of the
said Accountant or the Auditor of the company and is also not
certified by the Charted Accountant. He has admitted that at the
time of transaction with the defendant, Delhi Excise Act, 2009
and Delhi Excise Rules, 2010 were applicable. He has stated
that the defendant was having L7 License. This witness has
stated that he has not placed on record the Stock Register
showing the sale of liquor by the plaintiff company on the dates
when the goods were allegedly sold to the defendant. He has
admitted that vend of the defendant was closed in the year 2021
CS (Comm.) No. 226/2024 -11-
due to change in the Excise Policy. He has admitted that there is
no provision in the Delhi Excise Policy, Delhi Excise Act, 2009
and Delhi Excise Rules, 2010 which provides for giving any
rebate or discount at the time of sale of liquor by the plaintiff
company which is L1 License Holder. This witness has admitted
that he has not filed any document or proof to show the payment
of Excise Duty as mentioned in the invoices Ex.PW1/6 to
Ex.PW1/13 i.e. page no. 41, 43, 45, 47, 49, 51,53 and 55. He has
admitted that no legal notice was sent to the defendant
demanding the alleged outstanding amount of the invoices i.e.
Ex.PW1/6 to Ex.PW1/13 till the filing of the present suit. He has
admitted that no date or amount or invoice number is mentioned
in his affidavit under Order XI Rule 6(3) of the Commercial
Courts Act (Ex.PW1/18).
9. On the other hand, proprietor of defendant has examined
himself as DW-1. This witness has filed affidavit on the lines of
plaint. This witness is duly cross examined by Ld. Counsel for
plaintiff. During cross examination this witness has stated that his
Manager is maintaining the stock register/daily sale register as
prescribed under Delhi Excise Rules, 2010. This witness has
stated that he cannot bring the stock register/daily sale register as
prescribed under Delhi Excise Rules, 2010 for the year 2020-
2021 as the shop namely Harviner And Company has been closed
in the year, 2021 and all the registers have already been
submitted with Excise Department. This witness has stated that
he cannot bring any document to show that all the registers have
been submitted with Excise Department. This witness has stated
that he has not informed the plaintiff about the closure of
CS (Comm.) No. 226/2024 -12-
business w.e.f 30.09.2021 but a circular was issued by the Excise
Department that all private shops will be closed. He has
admitted that all the invoices and Transport permits Ex. PW-1/6
to Ex. PW-1/13 (colly) are prior to 30.09.2021 He has
voluntarily stated that he has never received any goods in respect
of documents Ex. PW-1/6 to Ex. PW-1/13 (colly). He has stated
that his Accountant used to maintain Accounts of his firm. This
witness has stated that he cannot bring the Account Books
maintained with respect to plaintiff company from the year 2020-
2021. This witness has stated that he has made payment of all the
goods which the defendant firm has received. This witness has
stated that he cannot tell without seeing the record as to when the
defendant firm had made last payment to the plaintiff. This
witness has stated that he cannot bring any document to show as
to when his firm had made payment lastly to the plaintiff because
his Accountant used to maintain the Account and he has left the
job. He has stated that the defendant firm has received the goods
in respect of other invoices. This witness has stated that he
cannot bring the invoices in respect of goods received by his firm
as mentioned in para no. 5 & 6 of his affidavit in evidence Ex.
DW-1/A, as the same are not in his possession. He has stated
that it might be correct that if he has to purchase IMFL from any
Vendor in the year 2020-2021 then he has to place orders on the
website of Delhi Government Excise Department. This witness
has admitted that he had mentioned in para no. 6 of parawise
reply on merit (written statement) that defendant firm used to
make bill to bill wise payment. This witness has admitted that he
had not placed on record any document to show that defendant
was making payment bill to bill wise. This witness has stated
CS (Comm.) No. 226/2024 -13-
that he cannot bring any document to show that defendant firm
used to make bill to bill payment, if time is granted to him. This
witness has denied that he and his firm were using the email ID
[email protected] for correspondence purpose. This
witness has stated that his firm had not sent email from the above
mentioned email ID to the email ID of the plaintiff. This witness
has stated that he is not aware about the email ID
[email protected]. He has stated that the plaintiff
company has not sent the ledger account to the defendant firm
vide email dated 30.09.2021.
10. No other witness was examined by the defendant and D.E
was closed.
11. I have heard Ld. Counsel for plaintiff and Ld. Counsel for
defendants at length and perused the record carefully.
12. Issue No. 1- Whether this Court has jurisdiction to try and
entertain the present suit ? (OPP)
The burden to prove this issue is upon the plaintiff. It is
contended by the Ld. Counsel for the plaintiff that its office is
situated at 7/16, Kirti Nagar, Industrial Area, Delhi and the goods
were supplied from this warehouse/office to the defendant.
Defendant approached the plaintiff at its Kirti Nagar office, Delhi
for supply of goods. Moreover, on the invoices, it is clearly
mentioned “Dispute if any, subject to Delhi jurisdiction only.”
Plaintiff also argued that since no place of payment was agreed
upon between the, the principle of debtor seek the creditor shall
apply.
CS (Comm.) No. 226/2024 -14-
On the other hand, it is argued by Ld. Counsel for
defendant that plaintiff is having its office at Solan Brewery, PO-
Solan, Himachal Pradesh and goods were supplied by the
plaintiff to the defendant at Dwarka, so this court has no
jurisdiction to try and entertain the present suit.
13. Section 20 CPC provides that suits to be instituted where
defendants reside or cause of action arises. It reads as under:-
20. Other suits to be instituted where defendants reside or
cause of action arises.– Subject to the limitations
aforesaid, every suit shall be instituted in a Court within
the local limits of whose jurisdiction–
(a) the defendant, or each of the defendants where there are
more than one, at the time of the commencement of the
suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or
(b) any of the defendants, where there are more than one,
at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally
works for gain, provided that in such case either the leave
of the Court is given, or the defendants who do not reside,
or carry on business, or personally works for gain, as
aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
Therefore, it is clear that a civil suit is to be instituted
where the defendant resides or cause of action has arisen whether
in whole or part.
14. On the invoices (Ex. PW1/6 to PW1/13), plaintiff has
mentioned its address as 7/16, Kirti Nagar, Industrial Area,
Delhi-110015 and registered office at Solan Brewery, Solan –
CS (Comm.) No. 226/2024 -15-
173214 (Himachal Pradesh). In terms and conditions of clause
no. 7, it is mentioned that “Disputes if any, subject to Delhi
jurisdiction only”. At the outset, as per clause no. 7 of the
invoice, the parties have ousted the of Solan, Himachal and
Ghaziabad where distilleries of the plaintiff are situated.
In the judgment titled “A.B.C. LAMINART PVT. LID. &
ANR. vs. A.P. AGENCIES, SALEM” (1989 AIR 1239) passed
by the Hon’ble Supreme Court wherein it has been held that
“From the foregoing decisions it can be reasonably deduced that
where such an ouster clause occurs, it is pertinent to see whether
there is ouster of jurisdiction of other Courts. When the clause is
clear, unambiguous and specific accepted notions of contract
would bind the parties and unless the absence of ad idem can be
shown, the other Courts should avoid exercising jurisdiction. As
regards construction of the ouster clause when words like ‘alone’,
‘only’, ‘exclusive’ and the like have been used there may be no
difficulty. Even without such words in appropriate cases the
maxim ‘expressio unius est exclusio alterius’ -expression of one is
the exclusion of another may be applied. What is an appropriate
case shall depend on the facts of the case. In such a case mention
of one thing may imply exclusion of another. When certain
jurisdiction is specified in a contract an intention to exclude all
others from its operation may in such cases be inferred. It has
therefore to be properly constructed.” In the present case clause
no. 7 of the invoice is clear and unambiguous as the word ‘only’
is used. Thus, no territorial jurisdiction can be tied to Solan,
Himachal Pradesh or Ghaziabad, Uttar Pradesh.
CS (Comm.) No. 226/2024 -16-
15. Now the question arises, whether the plaintiff has rightly
filed the suit in West District or not. It is not disputed that no
place of payment was fixed between the parties. It is a trite
principle in contract law that in case no place of payment is fixed
the debtor must seek the creditor. Section 49 of the Contract Act
1872 states as under :-
49. Place for performance of promise, where no
application to be made and no place fixed for performance.
–When a promise is to be performed without application
by the promisee, and no place is fixed for the performance
of it, it is the duty of the promisor to apply to the promisee
to appoint a reasonable place for the performance of the
promise, and to perform it at such place.
The Hon’ble High Court of Delhi in SATYAPAL vs
SLICK AUTO ACCESSORIES PVT. LTD. & ORS. [RSA
No.40/2013] held as under :-
“6. I completely agree with the conclusion of the
trial court because it is settled law that the debtor has to
seek the creditor and since no place of payment was agreed
upon, payment would have been made to the
seller/appellant who is residing and working for gain at
New Delhi. Trial court has also rightly relied upon Section
49 of the Indian Contract Act, 1872 that it was upon the
respondent no.1/defendant no. 1 to fix the place of
payment and which has not been done, and therefore
payment would have been made by the debtor to the
creditor at the place of the creditor/plaintiff/appellant. As
already stated the first appellate court has not even
bothered to refer to the analysis and reasoning of the trial
court for holding that the courts at Delhi have jurisdiction.
Accordingly, the findings of the first appellate court are set
aside and it is held that the courts at Delhi have territorial
jurisdiction.”
CS (Comm.) No. 226/2024 -17-
16. The plaintiff is having office at 7/16, Kirti Nagar,
Industrial Area, Delhi. PW-1 has categorically stated that he is
the Area Sales Manager of plaintiff company for Delhi region
and his place of sitting is at 7/16, Kirti Nagar, Industrial Area,
Delhi-110015. Thus, following the principle of debtor seeks the
creditor as observed by Hon’ble High Court of Delhi, the
defendant (debtor) is bound to seek plaintiff (creditor) at its
office 7/16, Kirti Nagar, Industrial Area, Delhi which falls within
the jurisdiction of this Court.
17. Lastly, defendant has argued that his place of work is at
Dwarka where the goods were supplied by the plaintiff thus
jurisdiction if any would be of South West District and not of
West District. The defendant has admitted its GST Details (Ex.
P1) which shows that principle place of business of the defendant
is at D-65, Mayapuri Industrial Area Phase-2, New Delhi, West
Delhi, Delhi – 110064. In cross-examination of DW-1, he
mentioned that he is currently residing at D/65/66, Mayapuri
Industrial Area, Phase-II, New Delhi – 110064 which falls within
the jurisdiction of this Court.
18. From the forgoing discussion, I am of the view that this
court has jurisdiction to try and entertain the present suit and this
issue is accordingly decided in favour of the plaintiff and against
the defendant.
19. Issue No. 2- Whether the present suit is within limitation ?
(OPP)
CS (Comm.) No. 226/2024 -18-
The burden to prove this issue is on the plaintiff. It is
contended by Ld. Counsel for plaintiff that the present suit is
filed within limitation as the invoices in the present case are for
the period from 04.01.2021 till 21.02.2021 and defendant has
lastly made payment on 25.02.2021. On the other hand, Ld.
Counsel for defendant contends that present suit is not filed
within the period of limitation. It is also argued that limitation
cannot be fastened on the basis of running statement of account.
In the present case, plaintiff has placed on record invoices
which are for the period from 04.01.2021 to 21.02.2021. The
plaintiff in para no. 6 of the plaint has mentioned that defendant
has made last payment on 25.02.2021. In reply to paragraph no. 6
of the plaint, defendant in written statement has denied receiving
goods from the plaintiff till 21.02.2021. Defendant has also
denied last payment made by them on 25.02.2021. As per the
version of the defendant, it was making bill to bill payment to the
plaintiff. DW-1 has categorically stated that he cannot tell
without seeing the record as to when the defendant firm had
made last payment to the plaintiff. This witness in clear terms
stated that he cannot bring any document to show as to when his
firm had made last payment to the plaintiff because his
Accountant used to maintain the account and he has left the job.
Defendant has not placed on record any document to show that he has
not made the last payment on 25.02.2021. On the other hand, plaintiff
has proved invoices from 04.01.2021 to 21.02.2021 as Ex. PW1/6 to
Ex. PW1/13. These invoices are dully supported by transport permits
which show that goods have been received by the defendant. As per
Ex. PW1/6 and Ex. PW1/7 goods were approved by Department of
Excise, Entertainment and Luxury Tax, Government of Delhi on
CS (Comm.) No. 226/2024 -19-
03/01/2021, dispatched on 04/01/2021 and received on
04/01/2021. As per Ex. PW1/8 goods were approved on
10/01/2021, dispatched on 11/01/2021 and received on
11/01/2021. As per Ex. PW1/9 goods were approved on
13/01/2021, dispatched on 14/01/2021 and received on
14/01/2021. As per Ex. PW1/10 goods were approved on
18/01/2021, dispatched on 19/01/2021 and received on
19/01/2021. As per Ex. PW1/11 goods were approved on
24/01/2021, dispatched on 25/01/2021 and received on
25/01/2021. As per PW1/12 goods were approved on
12/02/2021, dispatched on 13/02/2021 and received on
13/02/2021. As per Ex. PW1/13 goods were approved on
21/02/2021, dispatched on 21/02/2021 and received on
21/02/2021. Thus, plaintiff is able to prove that goods were
dispatched and duly received by the defendant from 04/01/2021
till 21/02/2021.
Plaintiff has filed application for pre- institution mediation
before Ld. Secretary, DLSA (West) on 09.10.2023 and non-
starter report was issued on 30.11.2023. As per provision of
Section 12A the Commercial Court Act, time period utilised for
the purpose of pre-institution mediation is liable to be excluded.
Thus, from 09.10.2023 till 30.11.2023 a total of 53 days have
been utilised for the purpose of pre-institution mediation.
The Hon’ble Supreme Court in judgment IN RE:
COGNIZANCE FOR EXTENSION OF LIMITATION held that “It is
further clarified that the period from 15.03.2020 till 28.02.2022 shall
also stand excluded in computing the periods prescribed under
Sections 23(4) and 29A of the Arbitration and Conciliation Act,1996,
Section 12A of the Commercial Courts Act,2015 and provisos (b) and
CS (Comm.) No. 226/2024 -20-
(c) of Section 138 of the Negotiable Instruments Act, 1881 and any
other laws, which prescribe periods) of limitation for instituting
proceedings, outer limits (within which the court or tribunal can
condone delay) and termination of proceedings”. Same observation is
given by the Hon’ble Supreme Court in judgment titled as “M/s. Arif
Azim Co. Ltd. Vs. M/s. Aptech Ltd.” Arbitration Petition No.
29/2023.
Thus, period from 21/02/2021 till 28/02/2022 is also liable
to be excluded in calculating period of limitation. If we exclude
this period, plaintiff is entitled for a balance period of 373 days.
Thus, taking into account 53 days which were utilised for
the purpose of pre-institution mediation and 373 days of balance
period in view of direction of Hon’ble Supreme Court, the
plaintiff has filed the present suit on 04.03.2024 which is well
within the period of limitation. Accordingly, issue no. 2 is
decided in favour of the plaintiff and against the defendant.
20. Issue No. 3- Whether the plaintiff is entitled for recovery
of Rs. 35,23,985.64 paise from the defendant, as prayed ? (OPP)
21. At the very Outset, I may observe that the provisions of
Section 2 (1) (c)(xviii) of Commercial Courts Act, 2015 are very
clear which reads as under:-
(c) “commercial dispute” means a dispute arising out
of-
(i) ordinary transactions of merchants, bankers,
financiers and traders such as those relating to
mercantile documents, including enforcement and
interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
CS (Comm.) No. 226/2024 -21-
(iv) transactions relating to aircraft, aircraft engines,
aircraft equipments and helicopters, including sales,
leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including
tenders;
(vii) agreements relating to immovable property used
exclusively in trade or commerce.
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreement;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining
to the services industry including outsourcing services
and financial services;
(xiv) mercantile agency and mercantile usage;
(xv)partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered
and unregistered trademarks, copyright, patent, design,
domain names, geographical indications and
semiconductor integrated circuits;
(xviii) agreement for sale of goods or provision of
services;
(xix) exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above;
and
(xxii) such other commercial disputes as may be notified
by the Central Government.
22. The provisions of Section 2 (1) (c) (xviii) of Commercial
Courts Act as above are very much clear. The Insurance and re-
insurance specified value do come within the jurisdiction of
Commercial Courts Act. The clause also includes the services
and guarantee given for the same. The service or guarantee may
be oral or written. Therefore, the facts which alleged in the plaint
comes under the Commercial disputes.
CS (Comm.) No. 226/2024 -22-
23. Secondly, now the question arises whether this Court has
the pecuniary jurisdiction to adjudicate the matter which is
dispute. In this regard, the provisions of Section 3 of Commercial
Courts Act, 2015 provides that:
Section 3 : Constitution of Commercial Courts:
(1) The State Government, may after consultation
with the concerned High Court, by notification,
constitute such number of Commercial Courts
at District level, as it may deem necessary for
the purpose of exercising the jurisdiction and
powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts
having ordinary original civil jurisdiction, the
State Government may, after consultation with the
concerned High Court, by notification,
constitute Commercial Courts at the District
Judge level:
Provided further that with respect to a territory
over which the High Courts have ordinary original
civil jurisdiction, the State Government may, by
notification, specify such pecuniary value
which shall not be less than three lakh rupees
and not more than the pecuniary jurisdiction
exercisable by the District Courts, as it may
consider necessary. ]
3[1A) Notwithstanding anything contained in this
Act, the State Government may, after consultation
with the concerned High Court, by
notification, specify such pecuniary value
which shall not be less than three lakh rupees or
such higher value, for whole or part of the State, as
it may consider necessary.]
24. Admittedly, the Commercial Court Act was amended on
03.05.2018 and by virtue of the amendment and by virtue of the
notification, the pecuniary value of the Commercial Courts Act
shall not be less than Rs. 3,00,000/-. In the present case, the
claim amount which is shown in the plaint is of Rs.
CS (Comm.) No. 226/2024 -23-
35,23,985.67/-. So, commercial court has jurisdiction to try and
entertain the present suit.
25. The burden to prove this issue is upon the plaintiff. It is the
contention of Ld. Counsel for defendant that present suit is not
filed by duly authorized and competent person. It is also
contended by Ld. Counsel for defendant that facts of the case
were not in the knowledge of PW-1, so he cannot depose on
behalf of plaintiff. On the other hand, Ld. Counsel for plaintiff
has argued that PW-1 is duly authorized to depose in the present
case.
In the present case, PW-1 has proved Company Master
Data as Ex. PW-1/1, true copy of Board Resolution as Ex.
PW-1/3 and power of attorney as Ex. PW-1/4. PW-1 has proved
certified copy of Resolution No. 34 passed at the Board of
Directors meeting held on 14.08.2021. Vide this resolution
meeting Shri Rajesh Kedia, Cheif Financial officer was
authorized to file suits to retain or engage Advocate to deal with
Excise, Sales Tax & Income Tax Departments to execute
agreements and to delegate powers. As per Ex. PW-1/3, Shri
Rajesh Kedia, Chief Financial Officer of the company has been
authorized to act upon the followings:-
(i) To institute suits and appear for and represent the
Company in and defend all and any suits, action,
summons, petitions, appeals, revisions, applications or
other proceedings in any Court or Tribunal and also
withdraw any Plaint, Petition, Application, Vakalatnama,
Power of attorney, Mukhtarnama and other documents,
papers or writings.
CS (Comm.) No. 226/2024 -24-
(ii) To retain employ and/or engage any Counsel, Solicitor
Attorney, Proctor, Pleader Vakil, Mookhtar, Advocate or
other practitioner, time to time as may be returned.
(iii) To deal with State Excise & Central Excise, Service
Tax, Sales Tax/VAT/CST/Entry Tax. GST and Income
Tax Departments mentioned above and to sign & execute
necessary papers/ documents letters, returns etc., in
connection with and pertaining to concerned authorities.
(iv) To sign and execute all Agency/ Manufacturing
Agreements, Lease Deeds/Rent Agreements with the third
party on behalf of the Company and to present the same
for registration before any State Excise Authorities or
before any Sub-Registrar and/or with any Government
authority/ authorities throughout in India.
(v) To delegate powers to any such person or persons to
represent the Company and to sign, execute and/or register
any paper as may be required to be signed for and/or on
behalf of the Company from time to time only in respect of
the above said matters.
Para (i) of Ex. PW-1/3 authorizes Mr. Rajesh Kedia to
institute suits and appear on behalf of plaintiff Company and
defend all suits. Vide this resolution Mr. Rajesh Kedia was also
authorized to delegate power to any such person or persons to
represent the company and to sign, execute and/or register any
paper as may be required to be signed for and/or on behalf of the
Company from time to time only in respect of the above said
matters.
26. In the present case PW-1 has also proved power of
attorney as Ex. PW-1/4. This power of attorney is executed by
Mr. Rajesh Kedia in favour of Mr. Santosh Kumar S/o Sh.
CS (Comm.) No. 226/2024 -25-
Krishna Pillai, Sales Manager of the Company to represent the
company and to do any or all of the following acts, deed and
things for taking appropriate legal action including filing of
recovery suits under the appropriate laws for recovery of money
due to the company. The name of defendant is mentioned at Sl.
No. VIII i.e. Harvinder & Company, Plot No. 139, Sector-20,
Dwarka, New Delhi-110075.The acts mentioned in Ex. PW-1/4
are as under:-
(1). To sign & file the Petition, Civil Suit, application,
affidavit and any other document and to file and/or
withdraw any document in the above said matter.
(2). To give evidence and statement on oath before the
Court in the said matter.
(3). To appoint advocate/s, Pleader/s in the said matter and
to sign Vakalatnama in his or their favour.
(4). To sign and file on behalf of the company any review,
revision or appeal in the said matter before any superior
courts.
The power of attorney Ex. PW-1/4 (OSR) is executed in
presence of witnesses. This document is also attested by public
notary. In National Insurance Co. Ltd and ANR vs. Mukesh
Tempo Service [2010:DHC:5647] the Hon’ble Delhi High Court
observed that in case of attested public notary document,
statutory presumption under Section 85 of the Evidence Act shall
be attracted. Relevant portion of this judgment is as under :-
15. Since the Power of Attorney Ex. PW-1/10, purporting
to be executed by plaintiff No. 2 in favour of plaintiff No.
1 has been attested by a Public Notary, there is a statutory
presumption under Section 85 of Evidence Act that theCS (Comm.) No. 226/2024 -26-
Power of Attorney was executed by the person by whom it
purports to have been executed and the person who
executed the power of attorney was fully competent in this
regard. In Jugraj Singh and Anr. Vs. Jaswant Singh and
Ors., AIR 1971 SC 761, the Power of Attorney attested by
a Public Notary was disputed on the ground that it did not
show on its face that the Notary had satisfied himself about
the identity of the executant. Supreme Court held that there
was a presumption of regularity of official acts and that the
Notary must have satisfied himself in the discharge of his
duties that the person who was executing it was the proper
person. In Rajesh Wadhwa vs. Sushma Govil, AIR 1989,
Delhi 144, it was contended before this Court that till it is
proved that the person who signed the said power of
attorney was duly appointed attorney, the court cannot
draw a presumption under Section 57 and 85 of the
Evidence Act. Repelling the contention, it was held by this
Court that the very purpose of drawing presumption under
Sections 57 and 85 of the Evidence Act would be nullified
if proof is to be had from the foreign country whether a
particular person who had attested the document as a
Notary Public of that country is in fact a duly appointed
Notary or not. When a seal of the Notary is put on the
document, Section 57 of the Evidence Act comes into play
and a presumption can be raised regarding the genuineness
of the seal of the said Notary, meaning thereby that the
said document is presumed to have been attested by a
competent Notary of that country.
……………………………………………………………
……………………………………………………………
…………… Hence, in this case also the Court is required
to draw the requisite statutory presumption that the power
of attorney Ex. PW-1/10 was executed by plaintiff
No.2 in favour of plaintiff No.1 and that the person
CS (Comm.) No. 226/2024 -27-
who executed the Power of Attorney on behalf of plaintiff
No. 2 was duly authorized in this behalf.
Thus, statutory presumption shall be accounted that Ex.
PW1/4 was executed by Sh. Rajesh Kedia in favour of PW-1
who is fully competent to depose in the present matter.
27. Ld. Counsel for the defendant has taken stern objection
that PW-1 has no authority to prove board resolution dated
14.08.2021. Moreover, Sh. Rajesh Kedia has failed to appear in
the witness box to prove the board resolution. Reliance in this
regard is placed on JANKI VASHDEO BHOJWANI AND ORS.
VS. INDUSIND BANK LTD. AND ORS. (06.12.2004 -SC):
MANU/SC/1030/2004, A.C. NARAYANAN AND ORS. VS.
STATE OF MAHARASHTRA AND ORS. (13.09.2013 – SC):
MANU/SC/0934/2013 and NITIN KUMAR VS. JAGAT SINGH
(MANU/DE/5514/2024). I have perused these judgments with
utmost regard. However, these judgments are not helpful to the
defendant. As such, suit by or against corporation is on a very
different footing as compared to suit by or against an individual.
Reliance in this regards can be placed judgment titled “Union
Bank of India versus Naresh Kumar and others (AIR 1997
SUPREME COURT 3)” passed by Hon’ble Supreme Court
where observations have been given in respect of suit filed on
behalf of corporation. Relevant paragraph of this judgement is as
under :-
15. It cannot be disputed that a company like the
appellant can sue and be sued in its own name. Under
Order 6 Rule 14 of the Code of Civil Procedure a pleading
is required to be signed by the party and its pleader, if any.
CS (Comm.) No. 226/2024 -28-
As a company is a juristic entity it is obvious that some
person has to sign the pleadings on behalf of the company.
Order 29 Rule 1 of the Code of Civil Procedure, therefore,
provides that in a suit by against a corporation the
Secretary or any Director or other Principal officer of the
corporation who is able to depose to the facts of the case
might sign and verify on behalf of the company. Reading
Order 6 Rule 14 together with Order 29 Rule 1 of the Code
of Civil Procedure it would appear that even in the absence
of any formal letter of authority or power of attorney
having been executed a person referred to in Rule 1 of
Order 29 can, by virtue of the office which he holds, sign
and verify the pleadings on behalf of the corporation. In
addition thereto and de hors Order 29 Rule 1 of the Code
of Civil Procedure, as a company is a juristic entity, it can
duly authorise any person to sign the plaint or the written
statement on its behalf and this would be regarded as
sufficient compliance with the provisions of Order 6 Rule
14 of the Code of Civil Procedure. A person may be
expressly authorised to sign the pleadings on behalf of the
company, for example by the Board of Directors passing a
resolution to that effect or by a power of attorney being
executed in favour of any individual. In absence thereof
and in cases where pleadings have been signed by one of
it’s officers a Corporation can ratify the said action of it’s
officer in signing the pleadings. Such ratification can be
express or implied. The Court can, on the basis of the
evidence on record, and after taking all the circumstances
of the case, specially with regard to the conduct of the trial,
come to the conclusion that the corporation had ratified the
act of signing of the pleading by it’s officer.
From the reading of the above judgement, it is clear that
even in absence of resolution passed by board of directors or
CS (Comm.) No. 226/2024 -29-
power of attorney, the court has the power to examine whether
the pleadings have been signed by an officer on behalf of
Corporation on the basis of evidence. PW-1 in the affidavit in
evidence has stated that he is the power of attorney holder of the
plaintiff and he is fully conversant with the facts and
circumstances of the case. During cross examination PW-1 has
stated that he is the Area Sales Manager of plaintiff company for
Delhi Region and his place of sitting is at 7/16, Kirti Nagar,
Industrial Area, Delhi. Thus, even though Sh. Rajesh Kedia has
not appeared in the witness box to depose, it can still be
concluded that PW-1 is duly authorised as per Ex. PW-1/3 and
Ex. PW-1/4 to pursue the present matter on behalf of the
plaintiff.
28. It is contended by Ld. Counsel for defendant that no goods
were supplied by the plaintiff and plaintiff has forged and
fabricated the invoices Ex. PW-1/6 to Ex. PW-1/13 as the same
do not bear his signature / stamp of the defendant. On the other
hand, Ld. Counsel for plaintiff has argued that invoices were
duly issued against the defendant and he has received goods as
per the invoices.
I have perused the invoices Ex. PW-1/6 to Ex. PW-1/13.
Perusal of invoices show that name of defendant is mentioned,
TIN and GSTIN numbers are also mentioned. On the invoices
Transport Permit number is also mentioned. Plaintiff has also
annexed Transport Permit along with each invoice in which the
warehouse name is mentioned as M/s. Mohan Meakin Limited
and Vendor name is mentioned as Harvinder & Company. On the
transport permit dates of approval, dispatch and receiving of
CS (Comm.) No. 226/2024 -30-
goods are also mentioned. Plaintiff has placed on record
Transport Permits generated from the Website of Department of
Excise, Entertainment and Luxury Tax, Govt. of Delhi. PW-1 has
categorically stated that the Excise Portal as referred by him can
be accessed by the party who is having login ID and password
with it. He has stated that any business dealing, transaction etc.
as made by the plaintiff company can only be accessed by the
plaintiff company and the defendant company or any other third
party cannot view or assess or take print out of the same. Ld.
Counsel for the plaintiff has drawn my attention towards certain
notification / orders passed by Government of National Capital
Territory of Delhi, Office of the commissioner of excise,
entertainment and luxury tax department in support of his
argument. On the other hand, Ld. Counsel for the defendant has
argued that these documents are not part of evidence in the
present matter and thus no reliance can be placed on it. I am not
inclined to accept this contention of the Ld. Counsel for the
defendant. As per Section 52 of the BSA, the Court is prescribed
to take judicial notice of government notification, ordinance,
order, international treaty and agreement. Ld. Counsel for the
plaintiff has placed reliance on State vs Gopal Singh
[MANU/MP/0026/1955] passed by Hon’ble Madhya Pradesh
High Court. Relevant paragraph of this judgment is as under :-
3. Now, it has never been doubted that a public or
general Act falling within the definition of law must be
noticed judicially by Courts and ex officio, although not
formally set forth by a party relying on it; and they require
no proof. The question is whether a notification issued by
Government or by other competent authority is within theCS (Comm.) No. 226/2024 -31-
definition of law, Article 366(10) of the Constitution
makes no mention of a notification.
But there can be no doubt that if a notification is a
part of any Act, Ordinance, or Order, it would be within
the definition of law or ‘existing law”. In his arguments,
the learned Advocate-General drew a distinction between
notification issued by Government or by competent
authority in the exercise of the powers delegated by the
Legislature under an Act or Ordinance, and notifications
issued by such authority in the exercise of its executive
functions and powers.
From the above it is clear that Orders / Notification
supplied to this Court by the plaintiff can be read in deciding the
suit.
29. Ld. Counsel for the plaintiff has drawn my attention
towards Section 81 of the Delhi Excise Act, 2009, which states as
under:-
81. Power of Government to make rules
(1) The Government may by notification make rules not
inconsistent with the provisions of this Act to carry out the
purposes of this Act.
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for all or any
of the following matters, namely:–
(a) prescribing the powers and duties of excise officers
and delegation of power;
(b) prescribing the time and mariner of presenting
appeals and the procedure for prosecuting and dealing
with review, appeal and revision;
CS (Comm.) No. 226/2024 -32-
(c) regulating import, export, transport, manufacture,
collection, possession, supply or storage of any
intoxicant, mahua flower, black jaggery and molasses;
(d) regulating the sale and possession of toddy, neera
or taxi and tapping of trees for drawing toddy or tart
(e) declaring the process of denaturation of spirit;
(f) regulating the wholesale or retail sale of
intoxicants;
(g) regulating the time, place, rate and manner of
payment of duty or fee and the taking of security for its
due payment;
(h) prescribing the authority by which, the form and
the manner in which, and the terms and conditions,
subject to which any licence, permit or pass shall be
granted;
(i) providing for the destruction or other disposal of
any liquor deemed to be unfit for use;
(j) regulating disposal of confiscated articles;
(k) providing for the grant of reward to excise officers
and informers; regulating the grant of expenses to
witnesses;
(m) regulating the power of excise officer to summon
witnesses;
(n) curbing activities of boot-leggers who distill,
manufacture, store, transport, import, export, sell or
distribute any intoxicant in contravention of any
provision of this Act or the rules made thereunder;
(o) any other matter which is required to be, or may be
prescribed under this Act.
Clause (c) authorizes the Government to control liquor and
even its raw materials at every stage from production to
possession.
CS (Comm.) No. 226/2024 -33-
30. Reliance is also placed on Order dated 06/06/2013 bearing
no. FF/1 (40) / CE / ESCIMS/ 2012-13 /7/8 passed by Deputy
Commissioner (Excise). This Order is regarding implementation
of the ESCIMS (Excise Supply Chain Information Management
System) for all private liquor vends. Vendors were granted time
till 30 June 2013 to arrange infrastructure and join the system,
after which from 1 July 2013 the Point-of-Sale (POS) application
became mandatory and no liquor stock could be sold without
barcode scanning. Once POS is operational, 2D bar-coded bottles
cannot be sold until existing 1D stock of that SKU is fully
exhausted, and thereafter every sale must be scanned through the
system. The department would subsequently reconcile inventory
(including both old and new bar-coded stock), and vendors were
required to maintain internet connectivity, install the POS
software, update inventory through scanning, and conduct all
transactions and reporting through ESCIMS.
Reliance is also placed on Order dated 14/10/2019 bearing
no. No.F.1 /(15)/Elect/IMPL/EX/2019/1678-1682 passed by
Deputy Commissioner (Excise). Vide this Order Delhi Excise
Department directed all liquor vends to ensure 100% sale of
liquor only through barcode scanning under ESCIMS. It
specifically mandates that if the ESCIMS system is not
functioning, vendors must scan bottles using HHT devices and
upload the data within 24 hours; if a barcode is unscannable it
must be manually entered, and if unreadable the stock must be
kept separate and may be confiscated. Inspectors would verify
stock weekly and no sale outside ESCIMS is permitted. Non-
compliance can lead to suspension/cancellation of licence or
blacklisting under the Delhi Excise Act, 2009.
CS (Comm.) No. 226/2024 -34-
From the above it is clear that transport permits attached
with invoices Ex. PW1/6 to Ex. PW1/13 are auto generated from
government site of Department of Excise Entertainment and
Luxury Tax, Government of Delhi. Further, the Defendant has
access to the orders placed by him on the ESCIMS portal.
However, he has deliberately chosen not to produce them in the
present proceedings in order to argue that he did not receive the
goods merely because the invoices do not bear his
signatures/stamp. A specific question was asked to DW-1 that if
the defendant has to purchase IMFL from any vendor in the year
2020-2021 then he has to place orders on the website of Delhi
Government Excise Department or not. DW-1 has replied that it
might be correct. Defendant has not adduced any evidence that
he has not placed orders in respect of Ex. PW-1/6 to Ex.
PW-1/13 on the website of Delhi Government Excise
Department. Nor defendant has summoned any witness to prove
that he has not placed orders with the plaintiff on website of
Excise Department.
Moreover, during cross examination of PW-1, Ld. Counsel
for defendant has asked PW-1 to bring the invoices as mentioned
in ledger Ex. PW-1/14. PW-1 on the next date has brought the
invoices for the period from the year 2015 to 2021 (running into
325 pages) and these invoices were collectively exhibited as Ex.
PW-1/DX1. Ex. PW-1/DX-1 shows that name of defendant
company is duly mentioned on each invoice, GSTIN details and
Transport Permit number are also mentioned. Defendant has
admitted to receive goods in respect of Ex. PW-1/DX1 which are
for the period from 04.07.2015 to 12.01.2021. On all these
invoices complete details of defendant is mentioned. There is no
CS (Comm.) No. 226/2024 -35-
receiving on the invoices Ex. PW-1/DX1. So, defendant cannot
say that he used to accept the goods only through receiving.
I am of the view that plaintiff has duly proved the
invoices alongwith transport permits which show that goods have
been delivered to the defendant.
31. As the plaintiff has proven through cogent corroborative
evidence that goods have been approved on ESCIMS portal,
dispatched by them and received by the defendant vide invoices
Ex. PW-1/6 to Ex. PW-1/13 now, the burden shifts upon the
defendant to disprove that he has not received the goods.
Reliance can be placed on judgment titled “Prabiyotsing Vs.
Shrivallabh Ramgopal Ramchandraji Darak”, MANU/MH/0400/
2021 passed by Hon’ble High Court of Bombay wherein it has
been held as follows :-
16. The above quoted observation in paragraph 19 of the
Supreme Court decision in the case of Rangammal (supra)
can be aptly relied upon in this matter. Unless the plaintiff,
relying on the transaction, first proves his case, its
genuineness or discharges his burden first, only thereafter
the defendant will be required to discharge the burden in
order to dislodge such proof and to establish that the
documents were false, forged or fabricated.But, that does
not mean that the trial court can be prevented from framing
issues in the suit. No doubt, it is for the plaintiff to first
prove issue Nos. 1 and 2. Once that is done, the defendant
will be required to dislodge it and prove that the
documents are false, forged or fabricated. The following
observation of the Supreme Court in paragraph 13 of the
decision in the case of Subhra Mukherjee (SC) (supra) is
also very pertinent:
CS (Comm.) No. 226/2024 -36-
“13. There can be no dispute that a person who
attacks a transaction as sham, bogus and fictitious
must prove the same. But a plain reading of question
No. 1 discloses that it is in two parts; the first part
says, whether the transaction, in question, is bona
fide and genuine one which has to be proved by the
appellants. It is only when this has been done that
the respondent has to dislodge it by proving that it is
a sham and fictitious transaction.”
32. The defendant has admitted the transactions in the written
statement. As per the defendant, he has received the goods and
made bill to bill payment of the goods received by him from the
plaintiff. Ld. Counsel for plaintiff has put para no. 5 of affidavit
in evidence Ex. DW-1/A to DW-1 and asked when and what
goods were received and what payments were made by the
defendant to the plaintiff. DW-1 has submitted that he has made
the payment of all the goods which the defendant firm has
received however DW-1 failed to specify any relevant details of
payment made by him. Ld. Counsel for plaintiff referred to para
no. 6 of affidavit in evidence (Ex. DW-1/A) and asked DW-1 as
to what goods were received by him. The witness replied that the
defendant firm has received goods in respect of other invoices.
This witness has stated that he cannot bring the invoices in
respect of goods received by him as mentioned in para no. 5 & 6
of affidavit in evidence as the same are not in his possession.
DW-1 further stated that he cannot bring account registers as the
shop namely Harvinder and Company has been closed in the
year, 2021 and all the registers have already been submitted with
Excise Department. He further stated that he cannot bring any
CS (Comm.) No. 226/2024 -37-
document to show that registers have been submitted with Excise
Department. Thus, defendant has admitted transactions with the
plaintiff however he failed to bring on record invoices, registers,
ledger and document to prove the submission of registers to the
Excise Department. I am of the view that defendant has put a
false defence that he has not received the goods from the plaintiff
and he is not able to discharge his burden.
33. It is contended by Ld. Counsel for defendant that ledger
account Ex. PW-1/14 cannot be taken into consideration as same
is not signed by any representative of the plaintiff and
Accountant is produced in the witness box to prove Ex. PW-1/14.
Furthermore, it is argued by the defendant that certificate under
Section 65B of the Evidence Act is not issued by the Accountant
who had prepared the ledger account thus, the same is defective
and no reliance can be place on the same. I have carefully
perused Affidavit under Section 65B of the Evidence Act, 1872
filed by the plaintiff. It is true that PW-1/14 is not signed by any
Accountant or CA. Affidavit under Section 65 B of the Evidence
Act, 1872 has not been issued by Accountant or CA of the
plaintiff. PW-1 has admitted that he has not prepared the ledger
account or the invoices Ex. PW1/6 to Ex. PW1/13. The
legislative intent behind Section 65B of the Evidence Act is not
to follow a stringent approach to disqualify an electronic
evidence but a flexible approach is to be followed. Reliance can
be placed on judgment titled “Punjab Gasket Industries and Anr.
Vs Murtaz Ali [2026:DHC:134-DB] passed by the Hon’ble Delhi
High Court, wherein it has been observed that Section 65B(4) of
the Indian Evidence Act adopts a pragmatic approach regarding
CS (Comm.) No. 226/2024 -38-
the person competent to issue the certificate. The expression ” in
relation to the operation of the relevant device or the
management of the relevant activities” is intentionally broad and
does not mandate that the certificate must be issued only by the
person physically operating the device. Consequently, any person
occupying a responsible official position in relation to the
operation activities can issue a certificate and such electronic
evidence cannot be rejected on hyper-technical objections
regarding authority.
In the present case PW-1 has stated that he is Area Sales
manager of the plaintiff company in Delhi Region and has power
to depose in the present matter as per Ex. PW1/13 and Ex.
PW1/14. In the 65B affidavit PW-1 has admitted that the
computer system from where printouts have been taken are under
his control and possession. Thus, it can asserted that PW-1 is a
person occupying a responsible official position in relation to the
operation of the relevant activities pertaining to the plaintiff
company.
34. Furthermore, Ld. Counsel for defendant has put to PW-1
that amount of Rs. 2,66,781.60/- as mentioned in Ex. PW-1/8 is
mentioned at point-A on Ex. PW-1/14 and witness replied in
affirmative. PW-1 admitted that the amount of Rs. 4,37,853.60/-
as mentioned on Ex. PW-1/11 is duly recorded at point-B of Ex.
PW1/14. I am of the view that PW-1 has given all the details of
transactions in Ex. PW-1/14
Ledger account Ex. PW1/14 cannot be independently
proven on its own and needs corroborative evidence to ascertain
its veracity. In the present case Ex. PW1/14 is corroborated by
CS (Comm.) No. 226/2024 -39-
invoices Ex. PW1/6 to Ex. PW 1/13 and Transport Permits
attached along with the invoices. PW-1 has also identified
relevant transactions during cross-examination. PW-1 admitted
that the amount of Rs. 4,37,853.60/- as mentioned in Ex.
PW-1/11 is duly recorded at point-B of Ex. PW1/14. Thus, ledger
account Ex. PW1/14 duly stands proved.
35. Lastly, It is contended by Ld. Counsel for defendant that
total of Ex. PW-1/6 to Ex. PW-1/13 comes to Rs. 36,96,725/- but
plaintiff has only claimed a sum of Rs. 35,23,985.64/-. I am of
the view that the suit of the plaintiff cannot be dismissed just
because it has claimed lesser amount in the suit. Thus, this
contention of Ld. Counsel for defendant carries no force.
36. In view of the forgoing discussion the plaintiff is able to
prove issue no. 3 in its favour and against the defendant.
37. Issue No. 4- Whether the plaintiff is entitled to the interest
on the amount of Rs. 35,23,985.64 paise , if yes then at what rate
and for what period ? (OPP)
The plaintiff has claimed interest @ 18% per annum from
the defendant. Ld. Counsel for plaintiff has placed reliance on
judgment titled as “The United India Insurance Co. Ltd. Vs. M/s.
M.K.J. Corporation” [1996] Supp. 95) SCR 20 passed by
Hon’ble Supreme Court of India, wherein, it is held that ” That
next question is : what rate of interest the insured-respondent is
entitled to get ? In common parlance, when the insured-
respondent is deprived of right to enjoy his money or invest the
money in business, necessarily the loss has to be compensated by
CS (Comm.) No. 226/2024 -40-
way of payment of interest by the insurance company. We are
informed that as per the directions of the Government of India
the appellant-insurance company has no option but to invest the
money in the securities specified by the Government of India
under which the insurance company is securing interest on
investment at the rate of 11.3% per annum. Under these
circumstances, the appellant-insurance company is liable to pay
interest at 12% per annum from January 1, 1991 till date of
payment.” Reliance can be placed in this regard on the judgment
of Central Bank of India Vs Ravindra & Ors
MANU/SC/0663/2001 passed by Hon’ble Supreme Court of
India. In this judgment it is held that according to stroud’s
Judicial dictionary of Words and Phrases interest means, inter
alia, compensation paid by the borrower to the lender for
deprivation of the use of his money. In Secretary, Irrigation
Department, Government of Orissa & Ors Vs G. C. Roy Manu/
SC/0297/1992 (1992) 2 SCC 508, it is held that the constitution
bench opined that a person deprived of the use of money to
which he is legitimately entitled has a right to be compensated
for the deprivation, call it by any name. It may be called interest,
compensation or damages. This is the principles of Section 34
CPC.
In this judgment, Judgment of Dr. shamlal Narula Vs CIT
Punjab MANU/ SC/0109/1964 (53) was also relied upon wherein
it is held that interest is paid for the deprivation of the use of the
money. In this judgment it is also held that in whatever category
“interest in a particular case may be put, it is a consideration paid
either for the use of money or for forbearance in demanding it,
after it has fallen due, and thus, it is charge for the use of
CS (Comm.) No. 226/2024 -41-
forbearance of money. In this sense, it is a compensation allowed
by law or fixed by parties, or permitted by customs or usage, for
use of money, belonging to another, or of the delay in paying
money after it has become payable.
Reliance can also be placed on the judgment of Aditya Mass
Communication (P) Ltd Vs APSRTC MANU/SC/0759/2003
wherein Hon’ble Supreme Court granted interest @ 12% p.a.
Reliance can also be placed on the judgment of ” M/s IHT
Network Limited Vs. Sachin Bhardwaj” in RFA No. 835/2016 &
CM Appl.14617/2020 wherein the Hon’ble High Court of Delhi
has granted interest @12% per annum. I am of the view that the
interest claimed by the plaintiff is very excessive and plaintiff is
entitled to interest on the amount of Rs. 35,23,985.64/- @ 12%
per annum from 28.02.2021 which is reasonable and usually
prevailing market rate of interest.
38. RELIEF:
In view of my above discussions, the suit of the plaintiff is
decreed and a decree of Rs. 35,23,985.64/- is passed in favour of
the plaintiff and against the defendant. The plaintiff is also
entitled to interest @ 12% per annum on the amount of Rs.
35,23,985.64/- from 28.02.2021 since when the amount was due
as per Ex. PW-1/14 till realization. Plaintiff is also entitled to the
cost of the suit. Decree sheet be prepared accordingly. File be
consigned to record room, after necessary compliance.
Announced in the (NARESH KUMAR MALHOTRA)
open court on 13.02.2026 District Judge, Comm. Court-06
Digitally signed West, Tis Hazari Courts
NARESH by NARESH
KUMAR
KUMAR
MALHOTRA
Extension Block, Delhi/13.02.2026
MALHOTRA Date: 2026.02.13
16:22:05 +0530
CS (Comm.) No. 226/2024 -42-
