IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI New No. 619744/16 In re: Mr. [ENTITY], S/o Mr. [ENTITY], R/o 10C, Dewanshree, 30, Ferozeshah Road, New Delhi- 110 001 Plaintiff Versus M/s [ENTITY], (Now Mediaedge : CIA India Pvt. Ltd.) 3rd Floor,Tower B, Building No.9 DLF Cyber City Phase -III Gurgaon,Haryana- 122002 Defendant SUIT FOR RECOVERY OF RS. 37,12,160/- (RUPEES THIRTYSEVEN LACS TWELVE THOUSAND ONE HUNDRED AND SIXTY ONLY) WITH INTEREST PENDENTELITE AND FUTURE INTEREST FROM THE DATE OF DECREE UPTO THE DATE OF REALISATION AND COSTS OF THE SUIT WITH INTEREST THEREON. Date of institution of present suit : 30.05.2006 Date of receiving in this court : 10.08.2016 Date of reserving order : 09.08.2017 Date of Judgment : 19.08.2017 JUDGMENT
Brief facts of the case are that plaintiff has filed the present suit for recovery of Rs. 37,12,160/- with cost and interest stating that plaintiff was engaged in the business of outdoor advertising interalia of exhibiting advertisement, hoardings, neon signs, advertisement boards, kiosks etc. at various places in Delhi, New Delhi and carries on his business activities in the name and style of M/s Adwel Advertising Service. It has been claimed that since May, 2000 till February, 2002, plaintiff had displayed advertisements on bus shelter and kiosk in Delhi, New Delhi on behalf of number of clients of [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 1 of 16 defendant such as Nokia, Spectranet, Indian Airlines, Hundai etc. in terms of order issued by the defendant from time to time. It has been further claimed that during the course of dealing, plaintiff had been sending bills giving details about the advertisements displayed by the plaintiff, period thereof, rent per month etc. which was duly accepted and acknowledged by the defendant and in acknowledgment of its liability towards the plaintiff, defendant had been making "on account" payments to the plaintiff.
2. It has been claimed that last time plaintiff had issued [CASE NUMBER] dated 10.01.2002 for Rs. 65,000/-. It has been further mentioned that plaintiff was maintaining books of account in regular course of business and as per which a sum of Rs. 30,65,471/- was outstanding against the defendant as on 16.05.2002. It has been further claimed that one of the terms of the payment included that if payment was not made within 45 days, an interest @ 18% per annum would be charged and accordingly, plaintiff was claiming interest at aforesaid rate with effect from 16.05.2002 upon the balance outstanding amount of Rs. 30,65,471/-. It has been claimed that defendants failed to make the payment despite plaintiff writing letters dated 15.01.2003 and 03.02.2003. It has been further averred that defendant had sent letter dated 05.02.2003 stating that it would settle the account soon. It has been claimed that despite correspondence payment was not made forcing plaintiff to issue legal notice dated 19.12.2003 and another notice dated 06.01.2004.
3. It has been further averred that defendant in the month of September, 2004 made "on account" payment of Rs 15,00,000/- to the plaintiff i.e. Rs. 9,86,155/- vide cheque no. 118742 dated 10.09.2004 and another sum of Rs. 2,18,158/- vide another cheque no. 118743 dated 10.09.2004 against which TDS certificate was also given by the defendant and thus defendant on 10.09.2004 made a total payment of Rs. 15 lakh. It has been claimed that on 10.09.2004, defendant was already liable to pay a sum of Rs. 43,52,969/- including interest @ 18% and therefore, defendant after aforesaid payment of Rs [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 2 of 16 15,00,000/- was still liable to pay Rs. 28,52,979/- which plaintiff has claimed in the present suit with interest @ 18% per annum with effect from 11.09.2004 till the filing of the suit with other cost amounting to Rs. 37,12,160/-.
4. Upon service of summons defendant filed written statement and thereby raising preliminary objection that the suit of the plaintiff was barred by limitation. It has been further objected on the ground that plaintiff had earlier filed one suit for recovery in the name of Miss [ENTITY] alleged proprietor of M/s Adwell Advertising through present plaintiff against the defendant and it was nowhere proved that M/s Adwell Advertising and M/s Adwell Advertising Service were two different concerns or was informed to the defendant that these were two different concerns; that in the records of the defendant, only one concern was registered and TDS certificate was issued under one PAN number. It has, therefore, been pleaded that once suit had been filed on cause of action the second suit was not maintainable. It was further pleaded that suit was not maintainable as there were no outstanding amount payable to the plaintiff; that plaintiff had concealed material facts about the total payment received from defendant from time to time and proper statement of account had not been filed; that although plaintiff had claimed that there were two firms M/s Adwell Advertising and M/s Adwell Advertising Service but only one record had been filed.
5. On merits, it was submitted that plaintiff had filed suit as a husband of Ms. [ENTITY], alleged proprietor of M/s Adwell Advertising in which the plaintiff had filed the bills which were also filed in the present suit and thus it represented there to be a one concern. It has been further pleaded that order was given to M/s Adwell Advertising and not to M/s Adwell Advertising Service and it was stated by plaintiff in another suit which was pending in another Court that M/s Adwell Advertising and M/s Adwell Advertising Service were to different concerns. It was further averred that plaintiff in the present suit had filed letters dated 19.08.2000, 30.08.2000, 20.09.2000, 21.09.2000, 23.11.2000, [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 3 of 16 01.01.2001, 16.01.2001, 15.03.2001, 14.05.2001 and 10.08.2001 of the defendant which were addressed to M/s Adwell Advertising and in case the said letters were addresses to M/s Adwell Advertising then M/s Adwell Advertising Service was not required to raise the invoice bills and any work done by M/s Adwell Advertising Service had no legal bearing.
6. It was further submitted that proper statement of account has not been filed in the Court. It was further pleaded that plaintiff had not filed income tax returns showing any outstanding. It was further pleaded that bills which were allegedly raised by M/s Adwell Advertising were mentioned in the alleged outstanding amount payable to M/s Adwell Advertising Service. It was further pleaded that letter dated 21.12.2001 was issued by M/s Adwell Advertising Service and in the said letter the bill no. 1903/DT/BO/01 was mentioned which was raised by M/s Adwell Advertising. It was further pleaded that plaintiff had shown many bills in the alleged statement of account and most of the bills were defective or were raised for work which was not done or authorised by the defendant. It was further stated that on calculation of defective bills the defendant was not liable to pay anything. It has been further pleaded that defendant vide letter dated 21.09.2000 and 01.01.2001 had cancelled some sites but plaintiff had also raised bills for those sites. It was further pleaded that plaintiff had issued letter to M/s Adwell Advertising only and no letter was issued to M/s Adwell Advertising Service and a case between M/s Adwell Advertising and defendant was pending in another Court. It was further pleaded that plaintiff as witness in that suit had admitted in the cross examination that M/s Adwell Advertising Service had not done any work for BPCL but the statement of account filed by plaintiff had shown bill no. 1434 dated 05.12.2001 for an amount of Rs. 97,500/- for alleged work for BPCL. On the aforesaid ground defendant has denied any liability towards the plaintiff and has sought dismissal of the suit.
7. Plaintiff filed replication thereby denying averments made in the written statement and reiterated the contents of the plaint. It has been further [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 4 of 16 submitted that wife of the plaintiff was also in the same business running her firm as a proprietor in the name and style of M/s Adwell Advertising and even that firm had filed suit for recovery against the defendant. It was also submitted that the transaction between the two firms with defendant were two different transactions. Rest of the contents of the written statement were denied by the plaintiff.
8. On the pleadings of the parties, following issues were framed by the Ld. Predecessor vide order dated 01.08.2007:
1. Whether the present suit is barred by limitation? OPD.
2. Whether the plaintiff is entitled to receive any amount from the defendant? If so, to what extend? OPP.
3. Whether the plaintiff is entitled to claim any interest from the defendant? If so, at what rate and for what period? OPP.
4. Relief.
9. In order to prove plaintiffs' case, plaintiffs examined himself as sole witness as PW-1 wherein he relied upon documents i.e. letter dated 06.06.2000 Ex. P-1, fax/order dated 19.08.2000 Ex. P-2, 19.08.2000 as Ex. P-3, 30.08.2000 as Ex. P-4, 20.09.2000 as Ex. P-5, 23.11.2000 as Ex. P-6, 01.01.2001 as Ex. P-7, 16.02.2001 as Ex. P-8, 15.03.2001 as Ex. P-9, 14.05.2001 as Ex. P-10 and 20.07.2001 as Ex. P-11, letter dated 10.08.2001 Ex. PW-1/1, letter dated 21.09.2000 and 01.01.2001 Ex. PW-1/2 and PW-1/3, bill dated 05.03.2001 of Rs. 48,000/- Ex. P-12, bill dated 10.12.2001 of Rs. 84,500/- Ex. P-13, bill dated 10.01.2002 of Rs. 65,000/- Ex. P-15, the remaining bills/invoices Ex. PW-1/4 to Ex. PW-1/53, covering letter dated 14.01.2002 Ex. P-14 and the remaining letters Ex. PW-1/54 to PW-1/65, bill no. 1496/ND/K/02 dated 10.01.2002 of Rs. 65,000/- Ex. P-15, books of account Ex. PW-1/66, Letter dated 15.01.2003 sent to Mr. [ENTITY] Ex. PW-1/67, letter dated 15.01.2003 sent to Mr. [ENTITY] Ex. PW-1/68 and its fax receipt is Ex. PW-1/69, copy of fax message dated 05.02.2003 along with original letter Ex. PW-1/72 and PW-1/73 respectively, [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 5 of 16 office copy of letter sent to defendant, Mumbai along with its fax receipt Ex. PW- 1/74 and PW-1/75 respectively, office copy of this letter sent to defendant at Kolkata along with its fax receipt Ex. PW-1/76 and PW-1/77, office copy of the letter dated 12.04.2003 Ex. PW-1/78, office copy of legal notice dated 19.12.2003 Ex. P-16 and its AD card Ex. P-17, original postal receipts Ex. PW- 1/79 and its original UPC receipt Ex. PW-1/80, office copy of legal notice dated 06.01.2004 Ex. P-18 and its original speed post receipt Ex. PW-1/81 original letter dated 10.06.2004 along with its enclosures received by the plaintiff from the defendant Ex. P-19 (colly). He was cross examined by Ld. Counsel for defendant. Thereafter, plaintiff closed plaintiff's evidence in affirmative.
10. Defendant did not wish to lead evidence and got his right closed vide statement of Counsel for the defendant.
11. Testimony of sole witness has been appreciated while recording issue wise findings in order to avoid repetition.
12. After going through the pleadings and evidence and other materials on record and appreciating the argument put forth by the respective Counsel for parties, issue wise findings as under:-
ISSUE No. 1 :- Whether the present suit is barred by limitation? OPD.
13. Onus to prove this issue is upon the defendant. Defendant has not led any evidence in the present case and therefore, defendant has failed to discharge the onus upon it. Plaintiff has pleaded that last bill was raised on 10.01.2002 for Rs 65,000/- and defendant had paid a sum of Rs. 56,000/- vide. cheque for Rs 54,858/- with TDS certificate for Rs 1,142/- on 10.05.2002 and thereafter defendant paid a sum of Rs. 15 lakh on 10.09.2004. Payment of Rs. 15 lakh on 10.09.2004 had not been disputed by the defendant. Present suit was filed on 30.05.2006. Limitation for filing suit for recovery of an amount is three years.
[PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 6 of 16 During the course of argument it has not been pointed out by the Ld. Counsel for defendant as to how the suit was barred by limitation.
14. As per [SECTION] of the Schedule to The [ACT] suit based on mutual accounts can be filed within three years from the last date of financial year in which last entry was made. Admittedly, with the payment of aforesaid Rs 56,000/- by way of cheque and TDS certificate the period of limitation got extended upto 31.03.2006 as per [SECTION] of the schedule. Similarly with payment of Rs 15 Lacs by cheques and TDS certificate on 10.09.2004, the period of limitation got extended upto 31.03.2008 as per [SECTION] of the Schedule to the [ACT] and therefore, computing period of limitation from 31.03.2005, suit filed on 30.05.2006 cannot be said to be barred by limitation.
Accordingly, issue no. 1 is decided against the defendant and in favour of plaintiff.
ISSUE No. 2 :- Whether the plaintiff is entitled to receive any amount from the defendant? If so, to what extent? OPP.
15. Onus to prove this issue is upon the plaintiff. It has been pleaded by the plaintiff that plaintiff had raised last bill no. 1496/ND/K/02 dated 10.01.2002 for Rs. 65,000/- and defendant had agreed and undertaken to adjust the balance outstanding in its account within short span of time. It has been further pleaded by the plaintiff that after appropriating the payment made by the defendant "on account", the defendant was still liable to pay the balance principle sum of Rs. 30,65,471/- to the plaintiff on 16.05.2002. It was further claimed by the plaintiff that in terms of service condition if bills were not paid within 45 days of submission, an interest @ 18% per annum was chargeable. In the present case, plaintiff had claimed interest with effect from 16.05.2002 on the amount of Rs. 30,65,471/-.
16. It has been further pleaded that on account of subsequent discussion [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 7 of 16 and reminder and after nine months of notice dated 19.12.2003 Ex P-6, defendant in the month of September, 2004 made "on account" payment of Rs. 15 lakh i.e. Rs. 9,86,155/- vide cheque no. 118742 dated 10.09.2004, Rs. 2,018,158/- vide cheque no. 118743 dated 10.09.2004 with two TDS certificates for Rs. 2,90,679/- and Rs. 5,008/-. It has been further claimed that on 10.09.2004 when aforesaid "on account" payment of Rs. 15 lakh was made, defendant was already liable to pay a total amount of Rs. 43,52,969/- to the plaintiff i.e. a sum of Rs. 30,65,471/- on account of principal balance and a Rs. 12,87,498/- on account of interest @18% per annum on Rs. 30,65,471/- with effect from 10.05.2002 till 10.09.2004. It was further claimed by the plaintiff that aforesaid payment of Rs. 15 lakh was appropriated towards the principal leaving principal balance amount of Rs. 15,65,471/- plus interest of Rs. 12,87,498/- and thus as on 10.09.2004 defendant was liable to pay a balance principal sum of Rs. 28,52,969/- to the plaintiff which amount plaintiff has claimed in the present suit with interest @ 18% per annum with effect from 11.09.2004.
17. Defendant has contested the suit wherein primarily taking stand that it had no liability or any dues towards the plaintiff and it has further pleaded that the statement of account of the plaintiff was not correct and had not been correctly maintained. Although, defendant had also taken stand that it had no privity of contract with the plaintiff as defendant never placed any order upon M/s Adwell Advertising Service and was dealing with M/s Adwell Advertising only which is admittedly proprietorship concern of wife of plaintiff and that plaintiff had mixed up many of the order which were placed on M/s Adwell Advertising and that plaintiff had claimed money in respect of many sites which were cancelled, but since defendant did not lead any evidence, therefore, none of the defense set up by the defendant had been proved except that that work order Ex P-2 to Ex P-10 and Ex PW1/2 which are admittedly addressed to Adwel Advertising and not Adwel Advertising Service. Therefore, it solely rests upon the plaintiff to prove his case on his own.
[PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 8 of 16
18. Plaintiff examined himself as PW-1 and deposed on the lines of the plaint. Apart from exhibiting various bills and purchase order, plaintiff exhibited the certified true copy of the statement of account Ex PW1/66 with regard to the account of the defendant showing the details of the various bills raised by the deponent and the payments made by the defendant. After once final argument was concluded and matter was adjourned for order, plaintiff moved an application under [SECTION] [ACT] thereby seeking to amend the plaint to the effect that Anneuxre -1 (which was Exhibited as Ex PW1/66) was not statement of account but "details of outstanding pertaining to defendant M.s [ENTITY]" Said application was dismissed vide order dt 13.07.2017 with observation that "the document can be perused by the court and its nature whether this is a "statement of account" or "details of outstanding" can be determined by the court in the light of pleading, evidence and contention."
19. PW1 deposed that the certified copy Ex PW1/66 was true and correct to the original ledger books maintained by plaintiff during the regular course of his business. It was specifically deposed by him that whenever bills were issued, the same were debited in the account maintained in the name of the defendant and whenever payments were received the same were credited to the account of the defendant. Perusal of the Ex Pw1/66 shows that both debit and credit entries have been shown right from 04.05.2000 to 10.09.2004 with heading as "details of outstanding statement-Zenith Media". The way it has been prepared it could at best be said to be an "extract of statement of account pertaining to defendant" wherein all bills and all payments have been shown and at the end lies debit balance and said view is also gets fortified from the cross examination of the PW1 which has been noted in below discussion.
20. In cross examination, he admitted that he was maintaining a running account with the defendant and the payments made by the defendant were duly adjusted. He volunteered that occasionally payments for the full bill amount were made by the defendant. He further deposed that he could not say if [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 9 of 16 all the bills have been reflected in the statement of account Ex. PW-1/66. He volunteered that it was possible that bills for which payments had been received were not reflected there. He further deposed that he had the details of the bills for which full payments had been received by him and which had not been mentioned in Ex. PW-1/66. He further admitted that bill no. 9229 dated 10.06.2000 as mentioned in the Bill Ex. PW-1/5 had not been detailed in the Ex. PW-1/66. He himself explained that the said bill must have been paid by the defendant. Similar was his answer with respect to bill no. 9230 dated 10.06.2000 mentioned in Ex. PW-1/6. He denied the suggestion that statement of account Ex. PW-1/66 was not correctly maintained as per law.
21. He further deposed in cross examination that statement of account Ex. PW-1/66 was signed by him and was prepared by him along with his accountant. He further admitted that it was possible that there were certain paid bills which have not been reflected in the statement of account Ex PW1/66. He also admitted that there was difference of rates between the work order Ex. P5 and the bill Ex. PW-1/11. He also admitted that there were rate difference in the bills Ex. PW-1/18, PW-1/23, PW-1/30, PW-1/33, PW-1/44 and PW-1/45 from those mentioned in their work order Ex. P5. When he was asked to explain the difference of rates in the bill and work order, he replied that he would have to check the reason from the Sales Persons. He admitted that bill Ex. PW-1/35 for bus shelters was for Rs. 38,000/- and not Rs. 32,000/-. He volunteered that rates had been renegotiated and the rates mentioned in the bills had been finalised subsequently.
22. He also admitted that bills Ex. PW-1/56, PW-1/57 and PW-1/58 were acknowledged by company M/s Bates India but explained that M/s Bates India was related to the defendant as they were operating from the same office at the same address. He denied the suggestion that bills raised by him were not in accordance with the party to whom the work order was assigned and did not relate to the agreed terms.
[PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 10 of 16
23. As seen from the testimony of PW-1, the extract of statement of account Ex. PW-1/66 does not reflect all the entries with respect to the payments received by the plaintiff. Though, PW-1 in his examination in chief specifically deposed that all the payments made by the defendant were credited into the account of the defendant but in his cross examination more than once he admitted that many of the payments received from the defendant had not been shown in the statement of account Ex. PW-1/66. It was also seen that PW1 was unable to explain the rate difference between the bills and work order. He also could not place anything on record to suggest that M/s Bates India were related to the defendant. Merely Bate India was available at the same address and after receiving bill/letter forwarded the same to defendant does not amount to acknowledgement of liability by the defendant.
24. The original books of account was never produced in the court for the inspection of the Court and what was placed on the record was extract from books of account that too admittedly did not show the complete payments received by him from defendant. In the aforesaid circumstances, the extract of statement of account relied upon by the plaintiff for showing the outstanding against the defendant is not credible and Court is hesitant to act upon Ex. PW- 1/66 and there is no other reliable material on record to fastened defendant with liability for any amount.
25. Counsel for plaintiff has strongly argued that non production of books of account by the plaintiff is not fatal to the case of the plaintiff as there are other material on record such as bills which sufficiently establishes the liability of the defendant and to this effect he has relied upon [ENTITY] v. P.M.Theagaraja Pattar; [PRECEDENT], [PRECEDENT] and [PRECEDENT]. Apart from this, it has been contended that defendant has shied away from being examined in the witness box [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 11 of 16 therefore an adverse inference be drawn against it. Per Contra relying upon report on [PRECEDENT] counsel for defendant contend that bills etc are being electronic record and not being accompanied with certificate under 65B of [ACT] are not admissible in evidence and therefore there is no other material on record to fastened the defendant with liability.
26. It is a settled proposition of law that plaintiff has to stand on his own legs and weakness in the case of the defendant or defendant's failure to prove its own case will not help the plaintiff in proving his own case. In the present case, simply because defendant has not led any evidence nor has proved its own books of account to show payments will not help the plaintiff in covering up the lapse in the extract of statement of account of the plaintiff which has vividly come on record on account of admission of the PW-1 to the effect that certain payments received from defendant had not been reflected in the statement of account.
27. Ruling in [ENTITY] (supra) that non production of accounts is not fatal if other material is available is not applicable to the present case as in the present case plaintiff has admitted that certain payments received from defendants have not been shown and therefore it is not clear whether entire amount has been paid by the defendant or there is debit balance less than what plaintiff has claimed or otherwise. It has been case of the plaintiff that defendant has been making payments "on account" and therefore in this circumstance when he admits certain more payments than shown then it is quite necessary for the plaintiff to show to the court for its satisfaction as to how much amount in all he has received from defendant so as to see if at all defendant is liable to pay any more amount and moreover that would have inspired confidence of the court in the claim of the plaintiff.
28. If plaintiff had not admitted about certain payments having not been shown in the accounts as placed on record then onus would have shifted upon the [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 12 of 16 defendant to prove that it has made all the payments. Even in the present case if plaintiff would have brought the details of the payments that he received and shown in the extract of accounts things would have changed and onus would have shifted upon the defendant to prove the amounts that it paid in all. But here plaintiff failed to bring about the complete details of payments he received either by placing and proving books of account or other documents such as Income Tax Return, TDS certificate etc, hence, plaintiff failed to prove as to how much amount he is entitled to receive from defendant.
29. There is one more aspect which necessitates more evidence than the bills. It is found that all the work order Ex P-2 to Ex P-10 have been placed upon the Adwel Advertising, a proprietorship concern of wife of plaintiff. It has not been disputed that wife of the plaintiff has also been engaged in the same business and all the work order relied upon by the plaintiff has been addressed to said firm of the wife of the plaintiff. It has not been disputed by the plaintiff that said firm has also been dealing with defendant. Defendant has claimed that in it's books of accounts there is one firm and all payments have been made under one PAN number. Though defendant did not lead any evidence but plaintiff was in possession of best evidence to prove that both firms have different PAN number. Plaintiff has been in possession of best evidence as it has not been disputed that plaintiff as an attorney of his wife has filed suit for recovery of amount on her behalf against the defendant which was pending at the time of filling of the present suit.
30. Name of the both firm is deceptively similar and possibility could not be ruled out that it was the plaintiff who was running both firms and just to save tax liability have created the said firm with wife as puppet proprietor. All the work order Ex P-2 to Ex P-10 have been addressed to said firm but posted at the address of the plaintiff. Plaintiff being in possession of best evidence has not brought on record documentary evidence to show that said firm was running from else place, although at one place PW1 did depose that said firm was at [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 13 of 16 Anand Vihar but did not bring documentary material to dispel possibility of said firm running from one place.
31. Moreover, in almost all the work order the concerned person addressed is [ENTITY] but plaintiff has not brought any record to show that said [ENTITY] was employed in the firm of the plaintiff and not in the firm of his wife. In these circumstance possibility could not be rule out that plaintiff has been exclusively dealing with defendant and for the purpose tax and other related matter two firm were being maintained in the eyes of law and bills and payments were being adjusted keeping in mind the sole objective of tax evasion or in other word minimizing of tax liability and purposely name of both firm was kept deceptively similar so that one document of one firm could be manipulated for other firm depending upon convenience.
Hence, merely on the basis of bills plaintiff cannot be held entitled to any amount not to speak of suit amount.
32. As far as claim qua charging of interest is concerned, in view of above reasoning issue of interest remains to be of academic interest only. It has been claimed by the plaintiff that it was a term that an interest @ 18% per annum would be charged if payment was not made within 45 days of the raising of the bills but this averment and testimony of the plaintiff goes against his own averment that a running account was being maintained in the name of the defendant and whenever bill was being raised amount was debited and payments were received were credited into the account of the defendant. If, that was so, then the term of chagrining interest @ 18% per annum after 45 days from the date of raising of bills will not apply. Such conditions apply where payments are made bill-wise. It has been specifically admitted by the plaintiff that payments were being made "on account". Once such was the nature of arrangement between plaintiff and defendant, plaintiff cannot claim interest in accordance with the clause mentioned in the bill.
[PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 14 of 16
33. Moreover, while claiming interest plaintiff has charged compound interest i.e. interest upon interest as is clear from the averment of the plaintiff that a sum of Rs. 12,87,498/- which was towards the interest with effect from 10.05.2002 became principal on 10.09.2004. The compound interest is neither agreed nor awardable as per law.
34. It has already been seen herein before that the extract of statement of account relied upon by the plaintiff is not trustworthy and though plaintiff sought to amend the plaint but did not seek to bring the books of account on record and other records of his wife's firm which could have thrown light on the question involved. Supreme Court in [PRECEDENT] has held that adverse inference would be drawn against party withholding best evidence from Court irrespective of onus of proof. Be that as it may the net result of overall analysis of pleading, evidence and material on record is that plaintiff failed to prove his entitlement to any definite amount which was the sole objective of the issue under consideration.
35. Ld. Counsel for plaintiff has further relied upon [PRECEDENT], [ENTITY] by [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]. [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] but the same are not being discussed here as the stage for the consideration of those case laws did not come for failure of plaintiff to prove [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 15 of 16 his entitlement to any amount.
Accordingly, issue no. 2 is decided against the plaintiff and in favour of defendant.
ISSUE No. 3 :- Whether the plaintiff is entitled to claim any interest from the defendant, if so, at what rate and for what period? OPP.
36. Onus to prove this issue is upon the plaintiff. As the issue no. 2 has been decided against the plaintiff so there is no question of plaintiff being entitled to any interest as was discussed hereinbefore.
Accordingly, issue no. 3 is decided against the plaintiff and in favour of defendant.
RELIEF In view of the findings recorded on all issues, suit of the plaintiff is dismissed.
Parties to bear their own cost of litigation.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
([ENTITY]) Announced in the open Court ADJ-13(Central) / THC (Judgment contains 16 pages) Delhi / 19.08.2017 [PRECEDENT] Mr. [ENTITY] v. M/s Zenith Media Ltd. Page No. 16 of 16