IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                     APPELLANT

VERSUS

XXX                                      RESPONDENT

INDEX

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

COURT FEES

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

NOTICE OF MOTION

Respected Sir,

          Please find enclosed copy of the above mentioned appeal which is being filed before this Hon’ble Court on ___.12.2024 and which is likely to get listed on any appropriate date thereafter, as per the directions of this Hon’ble Court. Please take notice accordingly.

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

URGENT APPLICATION

To:

The Deputy Registrar

Delhi High Court of Delhi.

New Delhi.

Respected Sir,

          Kindly treat the accompanying appeal and applications as an urgent one in accordance with the Rules of this Hon’ble High Court. The grounds of urgency are as enumerated in the accompanying appeal.

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                                         APPELLANT

VERSUS

XXX                                      RESPONDENT

CERTIFICATE

It is certified that complete paper book / trial court record has been filed by the Appellant alongwith the present Memorandum of Appeal which is necessary for the adjudication of the present case and no other documents other than from the record the appellant has been filed in this Appeal.

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

MEMO OF PARTIES

XXX
Through its Partners
Xxx
xxx,

Xxx.  APPELLANT

VERSUS

M/S. XXX
Through its Proprietor
Xxx
Xxx,
Xxx.                               RESPONDENT

-------------------------------------------------------------------------------

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX
Through its Partners
Xxx
xxx,

Xxx.  APPELLANT

VERSUS

M/S. XXX

Through its Proprietor

Xxx

Xxx,

Xxx.                               RESPONDENT

MEMORANDUM OF APPEAL SECTION 13 OF THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND COMMERCIAL APPELLATE DIVISION OF THE HIGH COURTS ACT, 2015 READ WITH SECTION 10 OF THE DELHI HIGH COURTS ACT, 1966 AGAINST IMPUGNED ORDER DATED 16.10.2024 PASSED BY THE SH. XXX; LD. DISTRICT JUDGE-05; CENTRAL DIST., TIS HAZARI COURTS, DELHI IN CS(COMM.) NO.xxx/2022 TITLED AS “XXX VS XXX”.

MOST RESPECTFULLY SHOWETH:-

1.                 That the present Appeal is being filed by the Appellant under Section 13 of the Commercial Courts Act, (the ‘Act’), against the Order dated 16.10.2024 passed by Sh. Xxx; Ld. District Judge-05; Central Dist., Tis Hazari Courts, Delhi in CS(Comm.) No.xxx/2022 titled as “Xxx Vs Xxx” (the ‘Impugned Judgment’), whereby the Ld. Trial Court decreed the suit filed by the Respondent has been in their favour and against the Defendant (Appellant herein), and further held that the Respondent is entitled to Rs. 4,40,313/- lacs along with interest @ 12% per annum from the date of last payment i.e. 14.03.2019 till realisation with cost, which is impugned in this Appeal and annexed as Annexure A-1.

2.                 BRIEF FACTS:-

CASE OF THE PLAINTIFF (RESPONDENT HEREIN)

A.               That the case of the plaintiff that the Company is wholesaler, distributor, exporter and trader of electronic components like capacitors etc.. The defendant is a partnership firm engaged in manufacturing and trading of electronic items such as wire and switches etc. On various occasions, the defendant placed purchase orders with the plaintiff which were complied with by raising three invoices and other documents as alleged.

B.                It is alleged that the defendant duped plaintiff by giving false assurances for payment as per invoices. When the defendant did not stick to its promise, the plaintiff instituted pre-institution mediation application before Mediation Center, Delhi and despite service, the defendant did not appear and hence the authority issued non-starter report. Last payment of Rs. 1,42,839/- was made on 14.05.2018 and thereafter, the outstanding amount is Rs.7,65,313/- as alleged.

CASE OF THE DEFENDANT (APPELLANT HEREIN)

C.                It is a partnership firm established on 29.11.2017 having GST No. xxx and that it was in the trading of electronic items like wires and switches. It used to purchase material from defendant but the running account was settled by the parties with mutual consent and thereafter there was no business dealing. There is no liability towards the plaintiff as per running account due to settlement of that account.

D.               It is submitted that goods were never received by the defendant. The invoices termed as unpaid in plaint are fake which have been prepared by the plaintiff to make a wrongful claim of Rs.7,63,313/-. The defendant had not placed any purchase order for the goods mentioned in those invoices nor any such article were ever delivered to the defendant.

E.                Thereafter, on 13.05.2022 the Respondent filed the Suit bearing CS(Commercial) No.xxx/2022 for recovery of Rs. 7,65,313/- with pendent-lite and future interest @18% per annum and cost, against the Appellant, before the Ld. District Judge-05, Central Distt. Tis Hazari Courts, Delhi and summons for appearance, in prescribed proforma, were duly served upon the Appellant and Counsel for the Appellant had appeared before the Ld. Trial Court. Copy of the Suit bearing CS(Comm.) No.xxx/2022 along with Documents are annexed as ANNEXURE A-2(Colly).

COURT PROCEEDINGS:-

F.                 The plaintiff is relying upon some electronic evidence which is not supported by certificate under Section 65-B of Indian Evidence Act and hence, those documents cannot be taken into account.

G.               From the pleadings of the parties, following issues have been framed by the Ld. Trial Court vide dated 10.04.2023:-

1.     Whether the plaintiff is entitled to suit amount as prayed for? OPP

2.     Whether plaintiff is entitled to any interest as prayed for, if so, for which period and at what rate? OPP

3.     Relief.

H.               That the defendant moved application under Order XI rule 1 CPC for permission to place on record its bank statement issued by Yes Bank from 01.12.2018 to 29.12.2018 and 01.02.2019 to 16.03.2019. As per those statements, the defendant had paid plaintiff Rs. 1,00,000/-, Rs. 75,000/-, Rs. 75,000/- and Rs. 75,000/- on 28.12.2018, 14.02.2019, 19.02.2019 and 14.03.2019.

I.                   PW1 had deposed in cross-examination that the defendant had made last payment only on 14.05.2018 and thereafter not a single penny was paid.  The said application was allowed and bank statements were taken on record.

J.                  That the plaintiff also came forward with that kind of application and sought permission to file some documents purporting to suggest that the above mentioned payment was not made by the defendant but by the proprietorship firm which the mother of the partners of the defendant was running. It is submitted that the present case against the partnership firm. The plaintiff had filed another case against the proprietorship firm but the same has already been dismissed because it was filed against the proprietor of the firm who had expired way back on 20.07.2017.

K.               In the case in hand, the payments were made by the defendant on 28.12.2018, 14.02.2019, 19.02.2019 and 14.03.2019 and so, those could not have been made by the proprietor of Xxx i.e. mother of the partners of the defendant because she had expired in 2017 itself. Resulting that the application of the plaintiff was dismissed.

L.                That the plaintiff examined two witnesses i.e PW1 Xxx is proprietor himself and he repeated the contents of plaint in his affidavit in evidence Ex. PW-1/A and PW2 xx is one of the director of xx .

M.              The defendant examined one of its partners xx as DW-1 who deposed that the plaintiff and defendant were engaged in the business but the running account was settled by the defendant and thereafter there was no business dealing between them.

N.               The Ld. Trial Court after hearing extensive arguments led by both the parties was pleased to pass a judgment dated 16.10.2024 whereby decree the suit in favour of the plaintiff (respondent herein) and against the defendant (Appellant herein) and held that the plaintiff is entitled to Rs.4,40,313/- along with interest @ 12% per annum from the date of last payment i.e. 14.03.2019 till realisation with cost.

3.                 That the Appellant being aggrieved by the impugned judgment dated 16.10.2024 passed by the Ld. Trial Court. The Appellant has preferring the present Appeal, submitted that the impugned judgment is liable to be set-aside inter-alia on the following amongst other grounds:

GROUNDS;-

A.               Because even otherwise the Ld. Trial Court has failed to consider the pleadings on record and has passed the impugned Judgment and decree on conjunctures and surmises.

B.                That the Ld. Trial Court erred in holding that the suit was filed within the limitation period. The last acknowledged payment was made on 14.05.2018, and as per Article 18 of the Limitation Act, 1963, the period of limitation expired on 14.05.2021. The Respondent’s reliance on the suo-motu extension granted by the Hon’ble Supreme Court in Suo Moto Writ Petition (Civil) No. x/2020 was misapplied as the period consumed was excessive, making the claim time-barred. Hence, the appellant relying upon the citation in case titled Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, where the Hon’ble Supreme Court emphasized strict adherence to the statutory limitation period.

C.                Because the Respondent failed to establish delivery of goods against the invoices. The invoices produced were unacknowledged, lacking signatures or stamps of the Appellants, which is mandatory as per commercial practices. The electronic evidence relied upon was not accompanied by a valid Section 65-B certificate under the Indian Evidence Act, 1872. The Ld. Trial Court erred in admitting such evidence without proper compliance. The judgment in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, mandates strict adherence to the procedural requirements of Section 65-B for the admissibility of electronic evidence.

D.               Because the GST number mentioned on Invoice dated 08.02.2018 (Ex. PW1/1) belongs to the proprietorship firm of Late Xxx and not to the Appellant’s partnership firm. The Ld. Trial Court wrongly inferred that the goods were delivered to the Appellant without evidence of actual receipt. The e-way bill referred to by the Respondent contained discrepancies in matching the invoice details, creating doubt about the authenticity of the claim. In Kamala Rani Agarwala v. Smt. Premlata Srivastava, AIR 2008 SC 1932, the Hon’ble Supreme Court held that discrepancies in documentary evidence raise substantial doubt about its authenticity.

E.                Because the Appellant’s bank statements demonstrated payments of Rs. 3.25 Lakhs made after 14.05.2018. The Ld. Trial Court wrongly disregarded these payments by concluding that the amounts were unrelated to the suit invoices.

F.                 Because the payments made were acknowledged by the Respondent without presenting any evidence of objection at the time, indicating settlement of accounts. Reliance is placed on K. Saraswathy v. P.S.S. Somasundaram Chettiar, (1989) 4 SCC 527, which emphasized that unilateral claims of debt cannot override evidence of settlement.

G.               Because the Ld. Trial Court erroneously admitted new documents filed by the Respondent after the framing of issues, causing prejudice to the Appellant. The interest rate of 12% per annum granted by the Ld. Trial Court is excessive, arbitrary, and penal in nature, contrary to prevailing commercial practices. In Central Bank of India v. Ravindra, (2002) 1 SCC 367, the Hon’ble Supreme Court cautioned against awarding penal interest rates in commercial transactions.

4.                 That the Appellant craves leave to add to, amend, alter, modify and/ or delete any of the aforesaid grounds as may be necessary in the facts and circumstances of the present case.

5.                 That the present Appeal is within limitation period as prescribed under Section 13 of The Commercial Courts, Commercial Appellate Division of High Court Act, 2015.

6.                 The Appellant herein states that he has not filed a similar First Appeal or any other Petition, challenging the Impugned Judgment as passed by the Ld. Trial Court before this Hon’ble Court or any other Court/s involving the subject matter of this Appeal, which is pending or has been disposed of.

7.                 That this First Appeal is made bona fide and in the interest of justice. That the annexure filed with the petition are true copies of the respective originals.

8.                 That the requisite Court fee in respect of the present Appeal has been affixed.

PRAYER:-

a)                 Call for the record of the Ld. Trial Court of Sh. Xxx; Ld. District Judge-05; Central Dist., Tis Hazari Courts, Delhi in CS(Comm.) No.xxx/2022 titled as “Xxx Vs Xxx”.

b)    Accept the present Appeal. The impugned judgment dated 16.10.2024 passed by Ld. Trial Court of Sh. Xxx; Ld. District Judge-05; Central Dist., Tis Hazari Courts, Delhi in CS(Comm.) No.xxx/2022 titled as “Xxx Vs Xxx” be set aside, reversed.

c)                 Pass such further or other orders as this Hon’ble Court may deem fit in the facts and circumstances of the case in favour of the Appellant and against Respondent herein.

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

VERIFICATION :-

          Verified at New Delhi on this ____ day of December, 2024 that the contents of accompanying Appeal, are based upon the records of the present case and the legal submissions made therein are as per legal advice received which I believe to be correct and that nothing material has been concealed there from, nor any part of it is false.

Appellant

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

AFFIDAVIT

Affidavit of Xxx, aged about ___ years, Partner of Xxx having office at xxx, xx, presently at xx., do hereby solemnly affirm and declare as under:-

1.                 That I am the Partner of the Appellant Firm in the above case and well conversant with the facts and circumstances of the present proceedings on the basis of records maintained by the Appellant company in its regular course of business, as such I am competent to swear this affidavit.

2.                 That I have read and understood the contents of the accompanying Appeal, which has been drafted by my counsel under my instructions.

3.                 That the contents of the Para Nos. ___ of the accompanying appeal are true to my knowledge on the basis of records maintained by the Appellant Bank and legal averments contained in Para No. ____ are based on legal advice received which I believe to be correct.

4.                 I state that the documents filed along with the present Appeal are true copies of the documents referred to and relied upon by me.

DEPONENT

VERIFICATION :-

I, abovenamed deponent do hereby verify that all the facts stated in the above affidavit are true to my knowledge as derived from the records of the Appellant Company and nothing material has been concealed therefrom.

Verified at New Delhi on this ____ day of December, 2024.

DEPONENT

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

I.A. NO._______ OF 2024.

IN

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

APPLICATION UNDER SECTION 151 CPC SEEKING EXEMPTION FOR FILING CERTIFIED COPIES, TRUE TYPED COPIES OF THE DOCUMENTS.

MOST RESPECTFULLY SHOWETH:-

1.                 That the present Appeal is being filed by the Appellant under Section 13 of the Commercial Court Act, (the ‘Act’), against the Judgment dated 16.10.2024 passed by the Sh. Xxx; Ld. District Judge-05; Central Dist., Tis Hazari Courts, Delhi in CS(Comm.) No.xxx/2022 titled as “Xxx Vs Xxx” (the ‘Impugned Judgment’). It is submitted that in view of the averments made in the accompanying Appeal, the same may be treated as part & parcel of the present application which are not repeated herein for the sake of brevity.

2.                 That due to urgency in the matter the Appellant herein is filing the present Appeal alongwith true photocopies of the documents, which may not be in consonance with the rules prescribed by this Hon’ble Court in respect of the margins and/or spacing between each line and/or font size and/or being fair typed copies of their respective originals and/or certified copies, and is hereby seeking leave of this Hon'ble Court to so present the present Appeal.

3.                 That the applicant/Appellant hereby undertakes to furnish the true typed copies of the documents as and when directed by this Hon'ble Court.

4.                 That the application is bona-fide and it is in the interest of justice that this Hon'ble Court may kindly be pleased to allow the Appellant exemption as sought for by way of the present application.

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may most graciously be pleased to:

a)     Exempt the Appellant from filing true typed copies of the dim and/or improperly formatted and/or certified copies of the documents filed along with accompanying Appeal.

b)    Pass such other or further orders as this Hon'ble Court deems fit and proper under the facts and circumstances of the case.

DELHI                                                       Appellant

THROUGH

DATED

XXX

ADVOCATES

Xxx.,             

Xxx.

                              Mob No: xxx

Email: xxx

IN THE HIGH COURT OF DELHI AT NEW DELHI

(APPELLATE CIVIL JURISDICTION)

I.A. NO._______ OF 2024.

IN

FAO (OS) (COMM.) NO._______ OF 2024.

IN THE MATTER OF:

XXX                    APPELLANT

VERSUS

XXX                                      RESPONDENT

AFFIDAVIT

Affidavit of Xxx, aged about ___ years, Partner of Xxx having office at xxx, xxx presently at xx., do hereby solemnly affirm and declare as under:-

1.                 That I am the Partner of the Appellant Firm in the present case and as such I am well conversant with the facts of the present case, and therefore, am competent to depose this affidavit.

2.                 That I have gone through the contents of the accompanying application for exemption, which has been prepared under my instructions. The contents of the accompanying application be read as part of this affidavit, which are not being repeated herein for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at New Delhi on this ____ day of December, 2024 that the contents of above affidavit are true and correct to my knowledge as derived from the records of the Appellant Bank and nothing material has been concealed therefrom.

DEPONENT