Delhi District Court
Pratham Trading Co vs Pooja Creation on 18 February, 2026
CNR No. DLCT01-016423-2024
IN THE COURT OF SHRI DEVENDRA KUMAR SHARMA:
DISTRICT JUDGE (COMMERCIAL COURT)- 03: CENTRAL
TIS HAZARI COURT (EXTENSION BLOCK): DELHI
CS (COMM) No. 1138/2024
In the matter of:-
M/s Pratham Trading Co.
Through its Proprietor
Sh. Mukesh Kumar
Office at:
H.No. 11717, Basement,
Gali No.2, Sat Nagar,
Karol Bagh, New Delhi-110005
Mob. No. 9654172960
......Plaintiff
Versus
M/s Pooja Creation
Through Proprietor
Sh. Tilak Raj Chandel
Office at:
B-2274/297-E, Karol Bagh,
Main Tank Road, Central Delhi,
New Delhi-110005.
Also at:
112/113, Ghosi Mohalla,
Lal Kurti Bazar, Meerut, UP
Mob. No. 9654575710
......Defendants
Date of Institution : 16.10.2024
Date on which judgment reserved : 16.02.2026
Date on which Judgment pronounced : 18.02.2026
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 1/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
2026.02.18
Sharma 15:57:50
+0530
SUIT FOR RECOVERY
JUDGMENT
1. Before this Court set to adjudicate on myriad issues
flagged on either side, let the Court to spell out laconically the
landscape of the pleadings.
2. This is a suit for recovery of Rs.12,24,663/- filed by
the plaintiff against the defendants.
(A) Pleadings of the Parties:-
3. Succinctly stated facts of the case as set out in the
plaint are that the plaintiff is a proprietorship firm having its
registered office at H.No.11717, Basement, Gali No.2, Sat Nagar,
Karol Bagh, New Delhi-110005.
4. It has been further averred that the defendant has
been purchasing denim material from the plaintiff and against the
defendant’s valid and confirmed order, the plaintiff has supplied
the denim material on credit basis as defendant has running credit
account in the account books of plaintiff operated in due course
of business. It has been further averred that the plaintiff has
raised bills of each and every work performed for payment and
the defendant has acknowledged the receipt of said bills.
5. It has been further averred that in October 2018, the
defendant was liable to pay an amount of Rs. 12,24,663/- but the
defendant has sought some time from plaintiff stating that his
business has suffered huge loss due to pandemic. It has been
further averred that in January 2021 when plaintiff once again
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 2/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:57:59
+0530
requested the defendant to make the payment, the defendant gave
an amount of Rs.20,000/- to the plaintiff and further promised to
pay remaining payment in regular intervals. It has been further
averred that the plaintiff had requested the defendant to make the
payments but defendant kept on giving false hope to the plaintiff
that he will clear all the bills as soon as he will have profit in
business as due to pandemic his business is running in loss,
however till date the defendant did not pay the outstanding
principal amount to the plaintiff.
6. It has been further averred that the plaintiff has
requested the defendant to clear the outstanding liability through
various phone calls and personal visits but the defendant did not
give any heed to the requests of the plaintiff and withheld the
outstanding dues which is legally recoverable from the
defendant. It has been further averred that looking at the conduct
of the defendant, the plaintiff has served legal notice dated
16.11.2023 on addresses of defendant through speed post dated
21.11.2023 which were returned back with remarks that “no such
firm and person” and “diye gaye pate par baar-baar jaane par
praptkarta nahi milte hain atah vapis”. It has been further averred
that the defendant neither replied the said legal demand notice
nor paid the outstanding amount of Rs.12,24,663/-.
7. It has been further averred that despite
acknowledging the liability of payment of principal balance
amount of Rs.12,24,663/-, the defendant has been miserably
failed to make the payment of said amount to the plaintiff
deliberately with malafide intention and therefore, the defendant
is liable to pay the said principle balance amount of
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 3/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:07
+0530
Rs.12,24,663/- alongwith interest @ 18% per annum from
October 2018 till realization of the decreetal amount.
8. It has been further averred that this Court has
territorial as well as pecuniary jurisdiction to entertain the present
suit as the plaintiff has its office at H. No.11717, Basement, Gali
No.2, Karol Bagh, Sat Nagar, New Delhi-110005 and all orders
were placed by the defendant at this office and all
communications were made from the said office which falls well
within the jurisdiction of this Court.
9. It has been further averred that before filing of the
present suit, the plaintiff had filed an application for pre-
institution mediation before the DLSA, Central District and the
defendant was served with the notice to participate in pre-
mediation but it has not given consent and willingness to
participate in the mediation process and none has appeared for
mediation on behalf of the defendant.
10. Thus, aggrieved by the act of the defendant, the
plaintiff has filed the instant suit praying for a decree in sum of
Rs.12,24,663/- alongwith pendente lite and future interest
@ 18% per annum from October 2018 till the realization of the
decreetal amount.
11. The defendant has contested the suit by filing its
detailed written statement. By way of preliminary objection, the
defendant has challenged the maintainability of the suit on the
ground that there is no cause of action against the defendant; that
the present suit is barred by limitation as the last transaction
reflected in the ledger produced by the plaintiff is dated
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 4/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:14
+0530
10.01.2021 for an amount of Rs.20,000/- deposited by the
defendant in cash only without any supporting document,
promissory note etc., that the present suit has been instituted in
September 2024 which is clearly beyond the prescribed period of
limitation by more than 08 months; that no proof of alleged cash
payment of Rs.20,000/- has been shown; that if the plaintiff has
considered the amount of Rs.6,75,000/- for repayment of the
transferred amount including Rs.20,000/- paid by the defendant
in cash, then the total liability would have been Rs.5,49,663/-;
that the plaintiff has concealed various bank account transaction
made by the defendant on various dates; that the defendant has
transferred the additional amount of Rs.1,10,000/- to the plaintiff
(Rs.20,000/- each was deposited on 07.10.2017, 17.10.2017 and
01.03.2019 via defendant’s Punjab National Bank account to the
plaintiff) and Rs.50,000/- was transferred on 14.11.2017 via
defendant’s ICICI Bank account to the plaintiff; that the plaintiff
has slept for so many years and then suddenly in September
2024, it has cleverly approached this Court with malafide
intention by clubbing the transactions that never took place
between the plaintiff and defendant and concealing the additional
transactions of Rs.1,10,000/- paid by the defendant.
12. On merits, each and every averments made by the
plaint have been denied on behalf of the defendant. It has been
further alleged that the plaintiff has deliberately did not reveal the
actual amount received against the bills and that the defendant
has made additional payments to the plaintiff which have been
omitted in the ledger produced by the plaintiff. It is therefore
prayed that the present suit may kindly be dismissed with
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 5/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:21
+0530
exemplary costs.
13. The plaintiff has filed the replication reiterating the
averments made in the plaint and denying the contra averments
made in the written statement. It is denied that the present suit
filed by the plaintiff is barred by limitation. It has been further
denied that the no supporting document has been filed in respect
to cash transaction of Rs.20,000/- dated 10.01.2021 as shown in
the ledger account. In this regard, it has been averred that the
defendant has been taking raw material from the plaintiff for a
long time and has also given cash payment in past which are
matter of record and ledger is the only document which is
maintained for entry of payments. Hence, no other document is
required. It has been further averred that prior to filing of the
present suit, plaintiff had initiated the pre-litigation mediation
proceedings in December 2023, however, the defendant failed to
participate in said proceedings and a non-starter report dated
04.07.2024 was received by plaintiff and thereafter the present
suit was filed in September 2024, hence the suit has been filed
within limitation period. It has been specifically denied that
plaintiff has concealed various bank account transactions made
by defendant on various dates. It has been further denied that
defendant has transferred the additional amount of Rs.1,10,000/-
(Rs.20,000/- each on 07.10.2017, 17.10.2017 and 01.03.2019
vide defendant’s Punjab National Bank Account to the plaintiff)
which the plaintiff has willfully omitted and Rs.50,000/- on
14.11.2017 vide defendant ICICI Bank Account. It has been
further alleged that the defendant had a running account
maintained with the plaintiff and the plaintiff had adjusted all
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 6/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:29
+0530
payments made by him in the previous invoices and case has
been filed regarding invoices which payment have not been
received till date. It is reiterated that defendant is liable to pay a
sum of Rs.12,24,663/- to the plaintiff as per the ledger account
and invoices maintained by the plaintiff. Thus, it is prayed that
the suit of the plaintiff be decreed in favour of the plaintiff and
against the defendants.
14. The Plaintiff as well as defendant filed their
respective admission/ denial of documents on affidavits.
(B) Issues :-
15. From the pleadings of the parties, following issues
were framed on 19.12.2025:-
1) Whether the plaintiff is entitled to a decree for
recovery of Rs.12,24,663/- against the defendant,
as prayed for? (OPP)
2) Whether the plaintiff is entitled for interest and
future interest, if so, at what rate and for which
period? (OPP)
3) Whether the defendant has made payment of
Rs.1,10,000/- (Rs.20,000/- each on 07.10.2017,
17.10.2017 and 01.03.2019 and Rs.50,000/- on
14.11.2017) to the plaintiff which has been
concealed by the plaintiff as claimed, if so, its
effect? (OPD)
4) Whether no cash payment of Rs.20,000/- on
10.01.2021 was made by the defendant to the
plaintiff, as claimed and if so, its effect? (OPD)CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 7/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:36
+0530
5) Relief.
(C) Evidence :- (a) of Plaintiff
16. In order to prove its case, the plaintiff has examined
its Proprietor Mr. Mukesh Kumar as PW-1. He reiterated the
averments made in plaint in his affidavit Ex.PW-1/A and relied
upon following documents:-
S.No. Details of documents Exhibit No.
1. True copy of GST filed on behalf of M/s Pratham Ex.PW1/1
Trading Co.
2. Original Invoices No.113 dated 30.11.2017, Ex.PW1/2
No.057 dated 06.10.2017, No.228 dated (colly) (total 06
21.10.2018, No.241 dated 25.03.2015, No.222 invoices)
dated 01.03.2015 and No.202 dated 05.02.2015
3. Original Delivery Challan dated 21.10.2018 Ex.PW1/3
4. E-way bill dated 21.10.2018 Ex.PW1/4
5. Certified copy of statement of account Ex.PW1/5
6. Original legal notice dated 16.11.2023 Ex.PW1/6
7. 02 original legal notice envelopes Ex.PW1/7
(colly)
8. 02 original postal speed post receipts Ex.PW1/8
(colly)
9. Non-Starter Report dated 04.07.2024 Ex.PW1/9
10. Certificate u/s 63 of BSA Ex.PW1/10
17. PW1 was cross examined on behalf of the defendant
at length. The cross examination of the witness shall be
discussed at the later part of the judgment.
18. No other witness was examined on behalf of
plaintiff. Therefore, PE was closed and the matter was listed for
DE.
(b) of Defendant
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 8/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:46
+0530
19. In order to prove its defence, the defendant has also
examined its Proprietor Sh. Tilak Raj Chandel as DW1. He
reiterated the facts averred in the written statement in his
affidavit Ex.DW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit No.
1. Statement of account of defendant of Punjab Ex.DW1/1
National Bank for the period from 18.09.2017 to
02.08.2019
2. Statement of account of defendant of ICICI Bank Ex.DW1/2
for the period from 12.09.2017 to 25.07.2019
3. Computer generated copy of GSTR3B filing Ex.DW1/3
details
4. Affidavit/ Certificate u/s 63 of BSA Ex.DW1/4
20. DW1 was cross examined on behalf of the plaintiff
at length. The cross examination of the witness shall be
discussed at the later part of the judgment.
21. No other witness was examined on behalf of the
defendant. Therefore, DE was closed and the matter was listed
for final arguments.
(D) Final Arguments :-
22. Arguments were addressed by Ms. Anjali Negi,
Counsel for the plaintiff and Sh. Antriksh, Sh. Dhruv Kapur and
Sh.Satyam Pandey, Counsels for defendant No.1. Written
submissions have also been filed on behalf of the parties.
23. During the course of arguments, counsels for
plaintiff and defendants reiterated respective averments made in
the plaint and written statement and also referred to documents
filed on behalf of respective parties as well as evidence adduced
on record by them.
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 9/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:58:58
+0530
24. Counsel for plaintiff has submitted that the goods
were delivered and accepted by the defendant without protest or
rejection. It has been further submitted that the plaintiff has
maintained a running statement of account in the ordinary course
of business showing the outstanding amount. It has been further
submitted that no letter, email or notice alleging defect has been
produced by DW1 in his evidence. It has been further submitted
that no documentary proof of return of goods or refusal at the
time of delivery is on record. It has been further submitted that
defect in goods is a technical matter and no independent or
supporting evidence has been led. It has been further submitted
that the defendant has not denied the commercial dealings with
the plaintiff during the defendant evidence and thus, the defence
taken by the defendant is bald, unsupported and insufficient in
law and in fact it is admitted on behalf of the defendant that all
the transactions were there between the parties.
25. It has been further submitted that defendant has
failed to produce his own account ledger even when he is
denying the payments made to the plaintiff. It has been further
submitted that the defendant wants to grab the hard earned
money of the plaintiff and has closed his business as the market
stopped giving raw material to him because he did not make
payments for the same. It has been further submitted that the
defendant has only filed bank statement for the period from 2017
to 2019, however the defendant has himself admitted that he has
been dealing with the plaintiff since the year 2011 and has a
running account with the plaintiff. It has been further submitted
that the defendant has not placed on record any documentCS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 10/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:59:10
+0530
showing prior payments. It has been further submitted that the
defendant was liable to pay Rs.6,75,000/- on 29.01.2015 and the
payment made by him were duly adjusted in the previous
outstanding amount. It has been further submitted that the
averments made in plaint have been proved by PW1 and it is
prayed that suit of plaintiff be decreed in its favour. In support of
the contentions, counsel for the plaintiff has relied upon the
following judgment:-
(i) Mapsa Tapes Private Limited vs. Shiv Naresh Sports
Private Limited & Ors., CS (Comm.) No. 689/2023
with IA No. 19138/2023 & IA No. 36016/2024.
26. Per contra, Counsel for defendant has submitted that
Ex.PW1/5 is not the certified copy of the statement of account,
rather it is merely a ledger maintained by the plaintiff itself
which has been cleverly fabricated only to cause wrongful loss to
the defendant. It has been further submitted that the present suit
is barred by limitation as during the course of trial, the plaintiff
was not able to prove the cash transaction of Rs.20,000/- nor he
produced any documentary or electronic evidence in support of
the alleged transaction dated 10.01.2021 which is reflected in
Ex.PW1/5.
27. It has been further submitted that PW1 in his cross
examination has failed to produce any documentary or electronic
evidence which shows the opening balance of Rs.6,75,000/- as
on 29.01.2015 to back up the claims of owed money. It has been
further submitted that PW1 has further testified that he has
placed on record only those bills against which payments are
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 11/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:59:17
+0530
pending and this fact clearly shows that the plaintiff has filed a
fabricated and frivolous suit. It has been further submitted that
PW1 has further testified that he has received the payment of
Rs.20,000/- in his bank account on 07.10.2017 and 17.10.2017
alongwith another amount of Rs.20,000/- on 01.03.2019,
however despite admitting these transactions, PW1 did not
include them in his ledger Ex.PW1/5. It has been further
submitted that PW1 has also admitted the receipt of additional
payment of Rs.50,000/- on 14.11.2017 which was deposited
directly into his bank account by the defendant but interestingly
this amount was also left out of the plaintiff’s ledger account
highlighting further discrepancies in his financial records.
28. It has been further submitted that the plaintiff has
failed to prove the cash transaction dated 10.01.2015 of
Rs.20,000/- and PW1 has admitted in his cross examination that
he never issued any receipt of cash payment. It has been further
submitted that PW1 has also admitted that he makes GST
payment on monthly basis for cash transaction but he failed to
show any relevant documents to prove the cash payment made on
10.01.2015. It has been further submitted that DW1 in his cross
examination has placed on record Ex.DW1/3 (GST3RB) which
clearly shows that the plaintiff has not filed any GST return in the
month of January and February of the said financial year. In
support of the contentions, counsel for the defendant has relied
upon the following judgments :-
(i) Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra)
reported in AIR 2020 SCC 3310;
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 12/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:59:25
+0530
reported in AIR 2008 SC 1541;
(iii) L.I.C. of India & Anr. Vs. Ram Pal Singh Bisen
reported in 2010 AIR SCW 1900(E) Analysis of Evidence and Findings:-
29. I have heard the learned Counsels for the parties and
have also perused the record as well as the written submissions
filed on behalf of the parties.
30. Before returning the finding upon issues, from the
pleadings of the parties and evidence led, it would be relevant to
discuss that it is admitted fact that both the parties had
commercial transactions regarding the sale and purchase of
clothes prior to the dispute arose between the parties regarding
the balance payment.
31. The first invoice in the present case placed on record
is dated 05.02.2015, second invoice is dated 01.03.2015, third
invoice is dated 25.03.2015, fourth invoice is dated 06.10.2017,
fifth invoice is dated 30.11.2017 and the last invoice is dated
21.10.2018. All these invoices have been exhibited as Ex.PW1/2
(Colly), Ex.PW1/3 and Ex.PW1/4. Thus, the last sale purchase
transaction between the parties as per case of the plaintiff was on
21.10.2018.
32. The plaintiff has relied upon statement of
account/ledger account as Ex.PW1/5 and according to the
plaintiff, the last payment was made on 10.01.2021 by cash.
33. Thus, from the transaction details, the limitation
period would have started from the last sale purchase transaction
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 13/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:59:33
+0530
dated 21.10.2018 and therefore, it would have ended on
20.10.2021 excluding the period of limitation for the purposes of
pre-litigation mediation and in view of the direction of the
Hon’ble Supreme Court vide order dated 10.01.2022 passed in
case titled as In Re: Cognizance for Extension of Limitation in
Suo Moto Writ Petition (Civil) of 3/2020. After deducting the
period of limitation aforesaid, the limitation period would have
expired in the month of March/ April, 2024 (21.04.2024).
34. If the last payment is taken to be into consideration
for the purposes of limitation, the limitation period would have
expired on 09.01.2024 excluding the period of limitation for the
purposes of pre-litigation mediation and in view of the direction
of the Hon’ble Supreme Court in case titled as In Re: Cognizance
for Extension of Limitation in Suo Moto Writ Petition (Civil) of
3/2020 (Supra). After deducting the period of limitation
aforesaid, the limitation period would have expired on
10.09.2025.
35. It is a cardinal principle of law in a civil suit that the
party who asserts a fact has to prove it by leading cogent
evidence in terms of Section 104 of the Bharatiya Sakshya
Adhiniyam, 2023 (corresponding to Section 101 of the Indian
Evidence Act) which is reproduced as under for the ready
reference:-
“Section 104: 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, and when a person is
bound to prove the existence of any fact, it is said that
the burden of proof lies on that person.”
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 14/26
Digitally
signed by
Devendra Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:59:41
+0530
36. Further, in order to prove a case, the law is clear that
any particular fact is to be proved by the person who wishes that
particular fact to be in existence and that should be believed by
the Court to be in existence and for ready reference, Section 106
of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to
Section 103 of Indian Evidence Act) is reproduced as under:-
“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.”
37. The burden of proof to make an evidence available
lies on the person who wishes to give evidence and for ready
reference, the relevant provision under Section 107 of the
Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section
104 of Indian Evidence Act) is reproduced as under:-
“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.”
38. Lastly, it is also cardinal principle of evidence that a
fact specifically within the knowledge of any person is to be
proved by that person and for ready reference, the relevant
provision under Section 109 of the Bharatiya Sakshya
Adhiniyam, 2023 (corresponding to Section 106 of Indian
Evidence Act) is reproduced as under:-
“Section 109: When any fact is especially within the
knowledge of any person, the burden of proving that
fact is upon him.”
39. Further, it is the cardinal principle of law that a civil
suit is to be decided on the principle of probability and in this
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 15/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
15:59:50
+0530
regard, reliance may be placed upon para 41 of the judgment in
case titled as Nand Kishore vs. DDA, RFA No. 240/2017, CM
No. 19118/2021, decided on 29.11.2021 which is reproduced as
under for ready reference:-
“13. It is well settled that a suit has to be tried on the
basis of the pleadings of the contesting parties which is
filed in the suit before the trial court in the form of plaint
and written statement and the nucleus of the case of the
plaintiff and the contesting case of the defendant in the
form of issues emerges out of that. Being a civil suit for
injunction, this suit is to be decided on the basis of
preponderance of probabilities. As held in Raj Kumar
Singh &Anr. Vs. Jagjit Chawla. reported in 183 (2011)
DLT 418. “A civil case is decided on balance of
probabilities. In the case of Vishnu Putt Sharma Vs.
Dava Sapra. reported in (2009) 13 see 729. the Hon’ble
Supreme Court was pleased to observe as under:
“8. There cannot be any doubt or dispute that a
creditor can maintain a civil and criminal
proceedings at the same time. Both the
proceedings, thus, can run parallel. The fact
required to be proved for obtaining a decree in
the civil suit and a judgment of conviction in
the criminal proceedings may be overlapping
but the standard of proof in a criminal case vis-
a-vis a civil suit, indisputably is different.
Whereas in a criminal case the prosecution is
bound to prove the commission of the offence
on the part of the accused beyond any
reasonable doubt, in a civil suit ”
preponderance of probability” would serve the
purpose for obtaining a decree”.
14. Section 101 of the Evidence Act. 1872 defines
“burden of proof” and laid down that the burden of
proving a fact always lying upon the person who asserts
the facts. Until such burden is discharged, the other party
is not required to be called upon to prove his case. The
court has to examine as to whether the person upon
whom the burden lies has been able to discharge his
burden. Until he arrives at such conclusion, he cannot
proceed on the basis of weakness of other party. In view
of Section 103 of Evidence Act, 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 lied on any
particular person. Further, Section 58 of the Indian
Evidence Act contained that no fact need to be proved in
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 16/26
Digitally signed
by Devendra
Devendra Kumar Sharma
Kumar Date:
2026.02.18
Sharma 15:59:58
+0530
any proceedings which parties thereto or their agents
agree to admit at the herein, or which, before the
hearing, they agree to admit by any writing under their
hands or which by any rule of pleadings enforce at the
time they are deemed to have admitted by their
pleadings. As held in judgment reported as Uttam Chand
Kothari Vs. Gauri Shankar Jalan. AIR 2007 Gau. 20.
admission in the written statement cannot be allowed to
be withdrawn. In view of this legal position of the
Evidence Act, it is clear that it is for the
appellant to prove that he has right, title or interest in the
suit property.
18. I have gone through the judgment reported as (2003)
8 SCC 752. As held:-
“Whether a civil or a criminal case, the anvil of
testing of “proved”, ” disproved” and” not
proved” as defined in Section 3 of the Indian
Evidence Act, 1872 is one and the same. It is the
valuation of the result drawn by the
applicability of the rule contained in Section 3
of the Evidence Act, 1872 that makes the
difference. In a suit for possession of property
based on title, if the plaintiff creates a high
degree of probability of his title to ownership,
instead of proving- his title beyond any
reasonable doubts, that would be enough to shift
the onus on the defendant. If the defendant fails
to shift back the onus, the plaintiffs burden of
proof would stand discharged so as to amount to
proof of the plaintiff’s title. The present case
being a civil one, the plaintiff could not be
expected to prove his title beyond any
reasonable doubt; a high degree of probability
lending assurance of the availability of title with
him would be enough to shift the onus the
plaintiff’s burden of proof can safely be deemed
to have been discharged. In the opinion of this
Court the plaintiff has succeeded in shifting the
onus on the defendant and therefore, the burden
of proof which lay on the plaintiff had stood
discharged.
The ratio of the judgment is squarely applicable in the
facts and circumstances of this case.”
40. In the light of above discussed principle of law and
relevant provisions of law, now it is to be seen as to whether the
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Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
16:00:06
+0530
plaintiff is entitled for the reliefs sought in plaint.
41. Admittedly, the present suit has been filed on
18.10.2024 (e-filed on 16.10.2024). Therefore, according to the
plaintiff after excluding the period of pre-litigation mediation and
in view of the direction of the Hon’ble Supreme Court in case
titled as In Re: Cognizance for Extension of Limitation in Suo
Moto Writ Petition (Civil) of 3/2020 (Supra) , the present suit is
within limitation period. The basis of claim is that there was
running account between the parties as the plaintiff used to
supply the goods and defendant used to make payment in the said
running account. The factum of periodical payment by the
defendant had not been denied. Thus, there was a running open
account between the parties and therefore, from the last
transaction i.e. alleged payment dated 10.01.2021, the period of
limitation is to be counted in the present case. As admittedly
from the date of last sale purchase of the goods on 21.10.2018,
even if the period of pre-litigation mediation and covid period
would be excluded in terms of the judgment of Hon’ble Supreme
Court, the suit would be time barred.
42. In this context, the ledger account Ex.PW1/5 relied
upon on behalf of the plaintiff alongwith testimony of PW1 and
PW2 becomes relevant for the purposes of deciding the issues
framed in the present case.
43. In the testimony of PW1, it has come on record in
the cross-examination that the ledger account Ex.PW1/5 is the
certified copy of statement of account and there is denial by him
that it is a fake and fabricated document.
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44. In view of the said testimony of PW1, now it is to be
seen as to whether the entry in the ledger account have been
made in the ordinary course of business and if so, whether
reliance can be placed upon it for the purposes of ascertaining the
entitlement of the plaintiff for a money decree coupled with the
fact that the entry made regarding the last cash payment would
extend the limitation period or not.
45. In his cross-examination, when the PW1 was
confronted that as to whether any bills/invoices prior to
29.01.2015 has been placed on record or not, PW1 has replied
that no such bill has been placed and only the bills against which
payments are pending have been placed on record by way of his
voluntary statement. This voluntary statement of PW1 itself is
sufficient to raise the doubt about the veracity of this ledger
account Ex.PW1/5 as the ledger account shows the opening
balance on 29.01.2025 as of Rs.6,75,000/-. He has further
testified that on 29.01.2025 there was no outstanding payment
against the defendant. Therefore, if the said cross-examination of
PW1 is taken to be correct that there was no pending balance on
29.01.2025 and for the said reason no invoices prior to said dates
have been placed on record, this testimony of PW1 itself raises
serious doubt about the veracity of maintaining the ledger
account Ex.PW1/5 in ordinary course of business as in the ledger
account, the first entry is dated 29.01.2025 with opening balance
of Rs.6,75,000/-.
46. Further, in the testimony of PW1 it has come on
record in his cross-examination that this ledger account/statement
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Digitally signed
by Devendra
Devendra Kumar Sharma
Kumar Date:
Sharma 2026.02.18
16:00:19
+0530
of account is for the period from 29.02.2015 to 10.02.2021.
Even the perusal of Ex.PW1/5 shows that the period of ledger
account has been shown from 29.02.2015 to 10.02.2021. This
heading upon Ex.PW1/5 itself contradicts the running contents of
Ex.PW1/5 where there are entries dated 29.01.2015, 05.02.2025
and 20.02.2015 prior to 29.02.2015. Even no clarification has
been made in the entire testimony of PW1 that it may be a
typographical error. The PW1 has with certainty testified that the
ledger account Ex.PW1/5 is for the period from 29.02.2015 to
10.02.2021.
47. In ordinary course of business, a ledger account is
maintained financial year wise and the opening and closing
balance are forwarded to the next financial year. In order to raise
presumption that the ledger account Ex.PW1/5 was maintained in
ordinary course of business, there should have been some
clarification regarding not maintaining the ledger account
financial year wise.
48. Further, the authenticity of ledger account Ex.PW1/5
has been tested in the cross-examination of PW1 and PW1 has
claimed vide voluntary statement that the defendant used to make
cash payment of Rs.1 lakhs, 50,000/-, 40,000/- and 20,000/- at
different occasions and the bills/invoices used to be issued
against the said payment and when he was asked as to whether
he has filed or he can bring any such invoice mentioning the cash
payment, he replied that he has not filed nor he can bring any
such invoice and again claimed that the said payment is
mentioned in the ledger account. However, perusal of the ledger
account again falsifies his stand of showing cash payment of the
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 20/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
2026.02.18
Sharma 16:00:27
+0530
said denomination in the ledger account Ex.PW1/5 except a cash
payment of Rs.20,000/- allegedly on 10.01.2021. Thus, this
testimony of PW1 again raises serious doubt about the proper
entry and maintenance of ledger account Ex.PW1/5 if his own
claim is believed to be true for the sake of arguments.
49. Against his claim of cash payment on 10.01.2021 of
Rs.20,000/- as mentioned in ledger account Ex.PW1/5, when he
was cross-examined as to whether he had shown the payment of
cash on 10.01.2021 in his GST record, he has replied that he
might have shown the payment instead of giving the reply that it
has been shown in the GST record or not. He has admitted in his
cross-examination that he has never issued any receipt of cash
payment including the payment made on 10.01.2021.
50. If no receipt was ever issued of cash payment, the
cash payment should have been reflected in the ledger account at
least and the payment might have been shown upon the invoices
but except one entry there is no entry in the ledger account nor
any invoices bears any endorsement of cash payment though
allegedly the invoices bears the signatures of defendant as
claimed by the plaintiff and denied by the defendant.
51. In his further cross-examination, PW1 has admitted
that the defendant has made the payments of Rs.20,000/- each on
07.10.2017, 17.10.2017 and 01.03.2019 through cheques and
there is no corresponding entry regarding the payment so
received through cheques in the ledger account and defendant
has claimed that these entries were made on 04.09.2017,
22.09.2017 and 27.02.2019 after the encashment of those
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Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
16:00:35
+0530
cheques on said dates and he has further testified that there is no
mention in the ledger account Ex.PW1/5 in the entry dated
04.09.2017, 22.09.2017 and 27.02.2019 of cumulative payment
of cheque amount and cash payment. It appears to be very
doubtful that the payment entry was not made on the date of
payment as in a regular course of business the entry is made on
the day the payment is received and in case there is any non-
payment due to dishonour of the cheque, reverse entry is made
and it is unusual in the business that the entry is made on the date
of encashment of the cheque. Further, according to PW1 the
subsequent entries were made of cheque amount as well as cash
payment but perusal of ledger account Ex.PW1/5 does not reveal
any such fact of cumulative entry of payment through cheque as
well as cash. This itself raises the serious doubt about the
veracity of maintaining ledger account by the plaintiff.
52. Not only that, in further cross-examination again
PW1 has testified that a payment of Rs.50,000/- was made on
14.11.2017 through cheque but no corresponding entry was made
and by voluntary statement it has been deposed that the
corresponding entry in this regard was made on 08.11.2017
alongwith the cash payment of Rs.15,000/- received on that day.
However, as usual there is no mention in the ledger account of
cash payment as well as payment through cheque though the
claim has been made.
53. PW1 has claimed that he has made the entries on the
date given on the cheque in the ledger account. However, there
is no evidence led on behalf of the plaintiff to show that the
claimed date were mentioned upon the cheques in the form of his
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Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
16:00:43
+0530
bank statement, copy of cheque or examining any witness from
the bank in order to corroborate his claim of making entry in the
aforesaid manner and therefore, it has remained bald assertions
on behalf of the plaintiff without any substantial proof on record.
54. Finally, PW1 has claimed that no entry on
14.11.2017 for an amount of Rs.50,000/- has been made in the
ledger account as no such amount was received sent by the
defendant. However, this claim of PW1 is against the bank
record and has been rebutted on behalf of the defendant in his
testimony appearing as DW1 wherein Ex.DW1/2 i.e. statement of
bank account of the defendant, there is transfer entry on
14.11.2017 of Rs.50,000/- to the account of plaintiff as well as
entry dated 22.09.2017 of Rs.50,000/- to the account of plaintiff
from the account of defendant and in the entire cross-
examination of DW1, these entries have not been challenged and
remained unrebutted. Thereby the defendant has successfully
falsified the claim of PW1 regarding the entry in the ledger
account of the amount which were remitted on behalf of the
defendant but have not been entered into in the statement of
account/ ledger account Ex.PW1/5.
55. In view of the aforesaid discussion, this Court is of
the considered opinion that the ledger entry in the ledger account
Ex.PW1/5 cannot be said to have been proved as per law on
preponderance of probability in order to prove the entitlement of
the plaintiff. On the other hand, by the cross-examination of
PW1 and in the form of documentary evidence i.e. statements of
account Ex.DW1/2 and Ex.DW1/3, the defendant has
successfully proved that the ledger account relied upon by the
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Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
16:00:52
+0530
plaintiff Ex.PW1/5 is not correct and genuine one maintained in
the ordinary course of business in order to prove the entitlement
qua recovery of the amount and for the purposes of extension of
limitation period with entry dated 10.01.2021 of cash payment as
there is no evidence at all led on behalf of the plaintiff to prove
any other cash entry.
56. From the evidence of DW1, it has been proved on
record in the form of Ex.DW1/1 and Ex.DW1/2 i.e. statement of
bank account belonging to the defendant maintained with Punjab
National Bank and ICICI Bank Ltd. that the defendant has made
payment of Rs.20,000/- each on 07.10.2017, 17.10.2017 and
01.03.2019 and Rs.50,000/- on 14.11.2017 and those amounts
have not been entered into the ledger account of the plaintiff.
57. In the light of aforesaid discussion, issue-wise
findings are as under:-
ISSUE No.3:-
Whether the defendant has made payment of Rs.1,10,000/-
(Rs.20,000/- each on 07.10.2017, 17.10.2017 and 01.03.2019 and
Rs.50,000/- on 14.11.2017) to the plaintiff which has been
concealed by the plaintiff as claimed, if so, its effect? (OPD)
58. Onus to prove this issue was upon defendant. As
discussed in detail hereinabove, the defendant has successfully
proved on preponderance of probability that the defendant has
made payment of Rs.1,10,000/- (Rs.20,000/- each on 07.10.2017,
17.10.2017 and 01.03.2019 and Rs.50,000/- on 14.11.2017) to
the plaintiff and those amounts have not been entered into the
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 24/26
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.02.18
16:01:00
+0530
ledger account of the plaintiff. Therefore, it has been proved that
the ledger account relied upon by the plaintiff is not the proper
ledger account and there is concealment of material payments
which raises serious doubt about the authenticity and veracity
and the claim of the plaintiff cannot be based upon the said
ledger account.
This issue is accordingly decided in favour of the
defendant and against the plaintiff.
ISSUE No.4:-
Whether no cash payment of Rs.20,000/- on 10.01.2021 was
made by the defendant to the plaintiff, as claimed and if so, its
effect? (OPD)
59. Onus to prove this issue was upon defendant. As
discussed in detail hereinabove, the defendant has successfully
proved on preponderance of probability that no cash payment of
Rs.20,000/- on 10.01.2021 was made by the defendant to the
plaintiff. The ledger account Ex.PW1/5 is not true and correct
ledger account and the entries made therein cannot be relied
upon. The necessary corollary is that the entry dated 10.01.2021
regarding the cash payment cannot be considered to be true entry
for the purposes of extension of limitation period. Therefore, it is
held that the suit of plaintiff is barred by limitation as the said
date i.e. 10.01.2021 cannot be taken into consideration for the
purposes of computing the limitation period.
This issue is accordingly decided in favour of the
defendant and against the plaintiff.
CS (COMM) 1138/2024 M/s Pratham Trading Co. Vs. M/s Pooja Creation Page No. 25/26 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.02.18 16:01:11 +0530 ISSUE No.1 :-
Whether the plaintiff is entitled to a decree for recovery of
Rs.12,24,663/- against the defendant, as prayed for? (OPP)
60. Onus to prove this issue was upon plaintiff. Plaintiff
has failed to prove its entitlement, cause of action and that the
suit has been filed within limitation period, as discussed in detail
hereinabove, therefore, this issue is decided against the plaintiff
and in favour of the defendant.
ISSUE No.2:-
Whether the plaintiff is entitled for interest and future interest, if
so, at what rate and for which period? (OPP)
61. Since it has been held while deciding issue no.1 that
plaintiff is not entitled to claim any amount from the defendant,
the question of it being entitled to interest also does not arise.
This issue is also decided against the plaintiff.
R E L I E F:-
62. In view of foregoing observations, it is held that
plaintiff is not entitled to any relief in the present suit and the suit
is dismissed.
63. In the circumstances discussed hereinabove, parties
to bear their own costs.
64. Decree sheet be prepared accordingly.
65. File be consigned to record room after due
compliance. Digitally signed
Dictated and pronounced
Devendra by Devendra
Kumar Sharma
Kumar
in the open Court on Sharma
Date:
2026.02.18
18th February, 2026. 16:01:19 +0530(DEVENDRA KUMAR SHARMA)
District Judge (Commercial Court)-03
Central, Tis Hazari Courts, Delhi
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