IN THE COURT OF SH. [ENTITY] ADDITIONAL DISTRICT JUDGE01 (CENTRAL) TIS HAZARI COURTS, DELHI C.S. No. 259/2009 Unique I. D. No. 02401C1010472008 M/s [ENTITY], B11/1, Okhla Industries Area PhaseII, New Delhi110020 Through its Director Sh. [ENTITY]. Plaintiff Versus M/s [ENTITY], D160, PhaseII Extension, [ENTITY]201305 Defendant SUIT FOR RECOVERY OF RS. 6,04,303.61 WITH INTEREST Date of institution of suit : 25.07.2008 Date of conclusion of arguments : 18.05.2015 Date of pronouncement of judgment : 30.05.2015 [PRECEDENT] [ENTITY] Vs. M/s [ENTITY] Page 1 of 30 JUDGMENT
1. The plaintiff company through its Director Sh. [ENTITY] has filed the present suit for recovery of Rs.6,04,303.61 paise alongwith interest @ 24% per annum against the defendant towards the value of the goods supplied. Defendant through Counsel filed counter claim on 28.02.2009 for recovery of Rs. 6.5 Lakh towards damages and cost of nickel supplied by it to the plaintiff alongwith costs.
2. Adumbrated in brief the facts of the case of plaintiff are as follows. Director Sh. [ENTITY] is authorized by plaintiff company vide resolution in his favour to sign, verify and file the suit. Plaintiff company was engaged in manufacturing of electrical cable of various specifications and the product of the plaintiff commands very good reputation in the market for its quality and performance. Defendant company had been buying electrical cables from the plaintiff as per their specifications and had placed various repeat purchase orders for supply of the electric cables during the years 2005 and 2006 and the cables were manufactured and supplied to the defendant on different dates. It was [CASE NUMBER] agreed by the plaintiff with the defendant that defendant shall release the payment to the plaintiff within 60 days of supply of material failing which defendant agreed to pay interest @ 24% per annum for the period of delay in release of payment. As the credit terms were extended to the defendant, plaintiff had been maintaining an open account in the name of defendant where all the transactions of supply and payment were recorded by the plaintiff. On 31.03.2007, after the adjustment of last payments made the defendant vide cheque no. 719517 dated 18.01.2007, sum of Rs. 6,04,303.61 p was due for payment from defendant which the defendant had been avoiding to release on one pretext or the other. Plaintiff sent legal notice dated 28.05.2008 through Counsel. Defendant replied on 09.06.2008 through Counsel and raised question of quality of material supplied by plaintiff which defendant had never raised before and made false accusation with malafide intentions not to pay in the material supplied by the plaintiff. Resultant had been the suit.
3. In the filed written statement, defendant took preliminary objections viz., (i) suit had no cause of action; (ii) plaint had not been verified properly ; (iii) plaintiff is guilty of suppression of material facts [CASE NUMBER] and misrepresentation as plaintiff had not placed on record the notices issued by the defendant willfully and deliberately; (iv) right from the beginning of the business transactions, intention of plaintiff had been to cheat the defendant; (v) defendant had been cheated and his valuable property i.e. nickel, which was entrusted to the plaintiff had also been misappropriated, hence defendant deserved their right to take the appropriate civil as well as criminal steps against plaintiff; (vi) suit had not been filed by the duly authorized person; (vii) copies of the plaint supplied to defendant had blanks. Defendant alleged that suit was false and frivolous, whereas the true facts were as follows. Defendant was manufacturer and supplier of thermocouples, RTD, control cables and compensating cables and heat resistant cables. For the purpose of manufacture and supply of said products to customers, defendant had been getting the job work done from other units including the unit of the plaintiff. The product for which the job work was got done by the defendant from the plaintiff was mainly relating to compensating cables KXA for the said purpose, since defendant was to supply five Kms. The defendant placed an order for compensating cables KXA for the said job/material with the plaintiff for which plaintiff quoted price @ Rs. [CASE NUMBER] 75.[SECTION] per sq. mtr. Following were the specifications of the compensating cables KXA : "12 Pairs Conductor : 0.8 mm dia, Solid (+) Copper () Cupronic Conductor Nickel : To be supplied by Eleind Each Core PVC insulated Pair twisted together and numbered Each pair & overall Al Mylar taped with drain were shielded.
Inner PVC insulated GI wire Armoured PVC Jacketed Standard : IS 1554 Packing 500 Mts. Drums Colour Code (+) YellowCopper () Red Nickel (0) Yellow"
Defendant averred that it supplied Nickel to plaintiff valued at approximately Rs. 10 Lakh to enable the plaintiff to carry out the said job work for preparing compensating cable KXA. Plaintiff supplied the cable manufactured by it to defendant claiming the same had been manufactured in accordance with the specifications, mentioned by the [CASE NUMBER] defendant. Defendant in turn supplied the said cable supplied by the plaintiff to its customer, believing that plaintiff would have carried out the job in accordance with the job specification. The customer of the defendant complained to him that there was MV drop at the cable end and there is over all temperature drop in the process parameter. On receipt of said complaint from customer of defendant, the defendant got the meters scrutinized, where from it transpired that the cable supplied by the plaintiff did not confirm to the specifications of the purchase order placed by the defendant. Though, it was specifically mentioned in the purchase order that there should be 12 pair cable, each pair twisted and numbered and each pair Al Mylar taped with a drain wire, however, it was observed that the cable supplied by the plaintiff was lacking in that aspect i.e. each pair was neither twisted nor Al Mylar tape with drain were and it is as a result of the said draw back that MV drop and temperature drop was noticed. Though defendant had reposed utmost faith in the plaintiff and had placed an order with him and had further supplied the goods to its customer on the basis of said faith reposed in the plaintiff, the plaintiff breached he said trust and cheated the defendant. Defendant also averred that plaintiff might have also misappropriated [CASE NUMBER] some part of the nickel, entrusted by defendant to plaintiff. When defendant confirmed the plaintiff with the afore mentioned position after the same came to its notice, the Managing Director and Executive Director of the plaintiff company started issuing threats to the Directors of the defendant company to implicate them in false cases and getting them eliminated in case the defendant raked the issued of the cheating and misappropriation of plaintiff and did not pay the amount demanded by them. Defendant relied upon the purchase order dated 19.08.2006 and the letter dated 04.05.2008 and its reply dated 22.05.2008, wherein, the plaintiff had admitted the receipt of the letters complaining the non supply of goods in terms of the specifications, which had been deliberately concealed by the plaintiff. Defendant issued a credit note of Rs. 6,50,000/ for the aforementioned loss and misappropriation of nickels entrusted to the plaintiff and also the loss towards the damages of loss of reputation, which was never replied by the plaintiff. Defendant also averred that the accounts of the plaintiff stand settled in view of the credit note dated 28.05.2008 and loss suffered by the defendant due to nonsupply of the cables in terms of specifications and purchase order. The defendant denied of any rate of interest much less @ 24% having [CASE NUMBER] agreed upon between parties or defendant having agreed to release the payment within 60 days of the material supplied. Defendant also denied of credit terms having been extended to it and/or the plaintiff having maintained an open account in the name of the defendant. Defendant denied of being liable to pay the sum of Rs. 6,04,303.61 p towards supply of the material. Defendant further alleged that the documents of supply and statement of account were false and fabricated documents and were denied specifically.
4. Defendant through Counsel filed counter claim on 28.02.2009 for recovery of Rs. 6.5 Lakh towards damages and cost of nickel supplied by it to the plaintiff alongwith costs alleging that counter claimant/defendant had supplied 391 kg of nickel to plaintiff/respondent on various dates against challan for a value of Rs. 10 Lakh approximately to enable the plaintiff/respondent for job work for preparing compensating cable KXA in terms of the purchase order. In the counter claim, the facts of the written statement of defendant were reiterated alleging the cables supplied by plaintiff/respondent to counter claimant/defendant were defective i.e. each pair was neither twisted nor [CASE NUMBER] Al Mylar taped with drain wire, on account of which there was MV drop at the cable and temperature drop in the process. Consequently the counter claimant/defendant suffered huge business loss as well as a set back to the good will of the defendant on account of goods supplied by the plaintiff/respondent to counter claimant having material defects.
5. Plaintiff filed rejoinder/replication to the written statement of the defendant to controvert the contentions of the written statement and to reiterate the averments of the plaint.
6. Plaintiff also filed written statement to the counter claim of the defendant with the preliminary objection of the counter claim being barred by limitation having been filed after more than three years of supply of materials to the defendant. Also was averred that the replies in the replication to written statement of defendant may be read as part of reply to counter claim for the sake of brevity. Plaintiff/respondent averred that it supplied the cable as per the specifications provided by the defendant and supply was accepted by the defendant after checking the product at their end. Plaintiff/respondent denied of counter claimant/ [CASE NUMBER] defendant having suffered any loss of Rs. 6,50,000/ and submitted that the quantity of nickel was consumed in the process of manufacture of cable as it was meant only to be consumed for the order of the defendant and it was not required to be returned. It was prayed by answering respondent/plaintiff to dismiss the counter claim being not maintainable.
7. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 10.09.2010 and 05.09.2012 : ISSUES
1)Whether the plaintiff is guilty for suppression of material facts? If so, its effects. OPD
2)Whether the suit has not been filed through authorized person? OPD
3)Whether the plaintiff is entitled for decree of the suit amount? [CASE NUMBER]
4)Whether the plaintiff is entitled for interest on decree amount? If so, at what rate. OPP
5)Whether the defendant is entitled to the amount claimed in the Counter Claim?
6)If the answer to issues no. 5 is in affirmative whether the defendant is entitled to any interest if so at what rate, for which period and for what amount? OPD
7)Relief.
8. Plaintiff examined its Director Sh. [ENTITY] as PW1 vide affidavit Ex PW1/A. PW1 relied upon documents i.e., (i) copy of certificate of incorporation exhibited as Ex PW1/1; (ii) copy of resolution of plaintiff company dated 12.07.2008 exhibited as Ex PW1/2;
(iii) copy of ledger account of defendant in books of plaintiff for the accounting year 01.04.2006 to 31.03.2007 exhibited as Ex PW1/3; (iv) legal notice dated 28.05.2008 exhibited as Ex PW1/4; and (v) reply of defendant through counsel dated 09.06.2008 exhibited as Ex PW1/6. PW1 was crossexamined.
[CASE NUMBER]
9. Defendant also examined its Director Sh. [ENTITY] as DW1 vide affidavit Ex DW1/A. DW1 relied upon documents i.e., (i) AD receipt dated 28.05.2008 exhibited as Ex DW1/6; (ii) UPC receipt exhibited as Ex DW1/7. DW1 was crossexamined.
10. I have heard arguments addressed by Sh. [ENTITY], Ld. counsel for plaintiff; Sh. [ENTITY], Ld. Proxy Counsel for defendant and have given thoughts to the contentions put forth, pleadings of the parties, evidence, written arguments of plaintiff counsel and have also examined the record of the case. Ld. Counsel argued in terms of pleadings of the parties elicited above.
11. In the written arguments of plaintiff, it was inter alia argued in terms of the averments of the pleadings of plaintiff. Also was submitted that defendant had not filed any copy of alleged notices as mentioned in the preliminary objection 3 of written statement nor issued any notice to the plaintiff for the production of the notices in the court, [CASE NUMBER] allegedly issued by the defendant. Also was argued that no oral or documentary evidence has been led by the defendant in respect of any complaint of customer of defendant with regard to nonfulfillment of the specifications in the cables as required under the purchase order or that there was MV drop at the cable and there was overall temperature drop in the process parameter. Also was argued that no complaint/FIR had been lodged by defendant for any offence of cheating or criminal breach of trust against defendant. Also was argued that the supply of the goods was accepted by the defendant after checking at their end and only in reply Ex PW1/6 to legal notice of demand Ex PW1/4, sent by plaintiff, for the first time on 09.06.2008, defendant had leveled false complaints regarding defects in goods supplied to defendant while earlier defendant was totally silent in this regard. Also was argued that the defence and counter claim of defendant was based on the totally forged and fabricated documents including photocopy of Fax as MarkDX1, copy of email of date 22.05.2008 MarkDX2, photocopy of debit note dated 28.05.2008 MarkDX4. Also was argued that the certificate MarkDX3 purportedly under [SECTION] of [ACT], dated 09.04.2015, was several years later to the dates of documents MarkDX1, MarkDX2 and MarkDX4 and [CASE NUMBER] would in no way make the computer generated documents MarkDX1, MarkDX2 and MarkDX4 admissible in evidence. Plaintiff counsel prayed for decree of the suit and dismissal of the counter claim submitting even the truthfulness of debit note MarkDX4, postal receipt Ex DW1/6 and UPC Ex DW1/7 were also suspicious because addresses of the defendant were of [ENTITY] and [ENTITY] and postal receipt and UPC are having the postal office stamp of [ENTITY], Delhi110007, which is about 3040 kms. away from the addresses of the defendant and DW1 failed to give any reason for sending the said registered AD post and UPC post from the [ENTITY], Delhi110007 Post Office. Also was argued that DW1 stated of nickel supplied to be of same specifications of cable, whereas the two challans Ex PW1/D1 and Ex PW1/D2 filed on record by defendant during crossexamination of PW1, found mention of different specifications of the nickel alleged to be supplied by the defendant to the plaintiff.
12. My issue wise findings are as under : [CASE NUMBER] Findings on Issue No(2) Whether the suit has not been filed through authorized person? OPD PW1 Sh. [ENTITY] in his affidavit Ex PW1/A proved the copy of resolution dated 12.07.2008 Ex PW1/2 in his favour and it was issued by the plaintiff company with the mention of PW1 being authorized to sign, file the suit against defendant for recovery and to appear and depose as well. In the course of crossexamination, PW1 produced the minute book of plaintiff company bearing the original resolution of date 12.07.2008. Mere cutting in respect of month and year of previous meeting in resolution book containing resolution dated 12.07.2008 of plaintiff company will in no way suffice to presume it to be fabricated or ante dated. Fact remains that vide resolution copy Ex PW1/2, PW1 is proved to be the authorized representative to sign, file and institute the suit on behalf of plaintiff company and depose for it. Issue no2 is decided against the defendant and in favour of the plaintiff accordingly.
[CASE NUMBER] Findings on Issue No(1) Whether the plaintiff is guilty for suppression of material facts? If so, its effects.
13. In preliminary objection no3 of the written statement, defendant averred that willfully and deliberately plaintiff had not placed on record the notices issued by the defendant. In para no. 11 of alleged true facts in written statement, the defendant has averred that the plaintiff has deliberately concealed the facts of purchase order dated 19.08.2006, letter dated 04.05.2008 and reply dated 22.05.2008, wherein, plaintiff had admitted the receipt of letters complaining the nonsupply of goods in terms of the specifications.
14. In the case of [PRECEDENT], [CASE NUMBER], decided by Supreme Court on 18/09/2014, it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the [ACT], in view of [SECTION] and [SECTION] of said Act, can be proved only in accordance with the procedure prescribed under [SECTION] of said Act; [CASE NUMBER] [SECTION] deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer. It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that the [ACT] does not contemplate or permit the proof of an electronic record by oral evidence if requirements under [SECTION] of The [ACT] are not complied with. Following are the four specified conditions under [SECTION] of the [ACT]: (i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) during the material part of the said period, the computer was operating properly and that even if it was not [CASE NUMBER] operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. It was also held in aforesaid precedent that under [SECTION] of the [ACT], if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) there must be a certificate which identifies the electronic record containing the statement; (b) the certificate must describe the manner in which the electronic record was produced; (c) the certificate must furnish the particulars of the device involved in the production of that record; (d) the certificate must deal with the applicable conditions mentioned under [SECTION] of the [ACT]; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence under [SECTION] read with [SECTION] of The [ACT] shall yield to be same; Generalia specialibus [CASE NUMBER] non derogant, special law will always prevail over the general law. It was also held that [SECTION] and [SECTION] of The [ACT] have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by [SECTION] and [SECTION] of The [ACT], so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of [PRECEDENT] does not lay down the correct legal position, which requires to be overruled and was accordingly overruled. It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under [SECTION] of The [ACT] are satisfied. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of [SECTION] of The [ACT] obtained at the time of taking of document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
15. MarkDX2 bears date 22.05.2008 and is alleged to be the email of plaintiff sent to defendant, but it nowhere bears any email IDs [CASE NUMBER] of plaintiff or defendant nor is accompanied by any certificate of date 22.05.2008 under [SECTION] of The [ACT], whereas the print out of MarkDX2 at the bottom bears date of generation as of 22.05.2008. MarkDX1 is the photocopy of the alleged Fax of purchase order of date 19.08.2006, alleged to be sent by defendant to plaintiff. But at the top of said document there is no Fax number of plaintiff as received or sent to is mentioned. The copy of Fax print out MarkDX1 is also not accompanied by any requisite certificate under [SECTION] of The [ACT] of date 19.08.2006. MarkDX4 is the photocopy of print out of debit note dated 28.05.2008, addressed by defendant to plaintiff. It does not bear any signatures of any authorized representative of the recipient/ authorized representative of plaintiff nor it bears any recital of having been sent by email or Fax. MarkDX4 contains the averments of alleged loss of goods suffered by defendant to the extent of Rs. 5.5 Lakh and Rs. 1 Lakh claimed as loss of reputation for plaintiff having not carried out job work as per specifications of purchase order and calling upon plaintiff to debit its account with sum of Rs. 6.5 Lakh. Ex PW1/6 is the admitted reply dated 09.06.2008, sent by counsel for defendant to counsel for plaintiff in response to notice Ex PW1/4 dated 28.05.2008, sent by [CASE NUMBER] plaintiff through Counsel. Ex PW1/6 finds no mention of (i) defendant having suffered any loss of goods of Rs. 5.5 Lakh; (ii) defendant having suffered any loss of reputation of Rs. 1 Lakh; (iii) existence/preparation of debit note dated 28.05.2008; and (iv) sending of debit note dated 28.05.2008 by defendant by Fax. Per se MarkDX4 appears to be prepared antedated. For want of prerequisites of [SECTION] of The [ACT] in the requisite certificates u/[SECTION] of The [ACT] of same dates of documents MarkDX1, MarkDX2 and MarkDX4, the secondary evidence pertaining to electronic record in the form of MarkDX1, MarkDX2 and MarkDX4 is inadmissible in evidence, since the certificate dated 09.04.2015 MarkDX3 filed on 09.04.2015 cannot fill the void created by nonfiling of requisite certificates under [SECTION] of [ACT] of same dates of documents MarkDX1, MarkDX2 and MarkDX4.
16. Defendant has miserably failed to prove that plaintiff was guilty of suppression of material facts. Issue no1 is decided against the defendant and in favour of the plaintiff accordingly.
[CASE NUMBER] Findings on Issue No(3) Whether the plaintiff is entitled for decree of the suit amount? OPP
17. When read as a whole, the plaint is found resting on the premise of the claim of plaintiff to be on the balance due on the mutual, open and current account of defendant in its books of account since plaintiff claimed accordingly a sum of Rs. 6,04,303.61 p from defendant towards supply of materials to him and the said sum being balance due for payment from defendant as on 31.03.2007 after adjustment of last payment made by defendant on 18.01.2007 vide cheque. In the course of plaintiff evidence, the plaintiff has not proved any invoices/bills towards supply of any materials to defendant but has relied upon copy of its ledger account in the name of defendant for the accounting year w.e.f. 01.04.2006 to 31.03.2007 exhibited as Ex PW1/3. Ex PW1/3 is a computer generated document and finds on top of it the name and address of the plaintiff company and the ledger account of defendant therein for period 01.04.2006 to 31.03.2007. In the course of examination, PW1 did not produce the account books of plaintiff company containing the ledger [CASE NUMBER] account of defendant for relevant year. Ex PW1/3 does not bear any recital of it being a true extract of the account of defendant as a debtor in the ledger/books of account of plaintiff company nor is accompanied by any requisite certificate under [SECTION] of [ACT] containing prerequisites of SubSection (2) and (4) of said [SECTION] of [ACT]. It is not borne out of the order sheets on record that any books of account of plaintiff company/specifically the ledger containing the account of defendant company was produced on the first date of hearing in this court or at any stage of trial later in terms of [SECTION] of The [ACT] (in short [ACT]). The said statement Ex PW1/3, purportedly generated by computer is a secondary evidence in electronic form and since it is not accompanied by requisite certificate under [SECTION] of [ACT], containing the pre requisites of [SECTION] of [ACT], it is accordingly inadmissible and cannot be made basis of claim of the plaintiff company. Plaintiff has accordingly failed to prove to be entitled for sum of Rs. 6,04,303.61 p from defendant towards value of goods supplied. Issue no3 is decided against the plaintiff and in favour of defendant accordingly.
[CASE NUMBER] Findings on Issue No(4) Whether the plaintiff is entitled for interest on decree amount? If so, at what rate. OPP
18. In view of my findings on Issue no3 above, since the plaintiff is not held entitled for any sum claimed towards value of goods supplied, it is also held not entitled for any interest claimed. Issue no4 is decided against the plaintiff and in favour of defendant accordingly.
Findings on Issue No(5) Whether the defendant is entitled to the amount claimed in the Counter Claim?
19. Counter claimant/defendant in para5 of counter claim has alleged of supply of 391 kg. of nickel to plaintiff/respondent on various dates against challan for a value of Rs. 10 Lakh approximately to enable the plaintiff/respondent to carry out the job work for preparing compensating cable KXA. In the course of crossexamination of PW1, [CASE NUMBER] defendant through counsel introduced documents Ex PW1/D1 and Ex PW1/D2 on 06.04.2015. Ex PW1/D1 is the carbon copy of challan no. 101, dated 24.10.2006 of defendant for 71 kg. conductor for cable typeK nickel size 0.81mm, alleged to have been supplied to plaintiff. Ex PW1/D2 is the original challan no. 105, dated 25.08.2006 of defendant of 1[SECTION] kg. of conductor/cable typeK/0.8 mm nickel purported to be supplied to plaintiff. When documents Ex PW1/D1 and Ex PW1/D2 were shown to PW1 in crossexamination, then PW1 stated that the signatures at pointsA on both these documents were neither belonging to him nor appeared to be of any of the employees of plaintiff. Both these challans Ex PW1/D1 and Ex PW1/D2 embody total quantity of 236 kg of nickel and have different signatures at portionsA on both these documents. In affidavit Ex DW1/A of DW1, sole examined witness of defendant, there is no whisper of any facts with respect to challans Ex PW1/D1 and Ex PW1/D2. In the course of crossexamination, DW1 denied of the challans Ex PW1/D1 and PW1/D2 finding mention of different specifications of cables. Such version of DW1 is per contra to the elicited recitals of Ex DW1/D1, finding mention nickel size 0.81mm and Ex DW1/D2 finding mention nickel size 0.8 mm. So there was [CASE NUMBER] difference of 0.01 mm of size of nickel in these two documents. DW1 could not elicit how original copy Ex DW1/2 was retained since he had elicited that original of delivered challan was sent to the party. Ex PW1/D1 and Ex PW1/D2 were introduced on 06.04.2015 in court record during the course of crossexamination of PW1. Documents, copies MarkDX1, MarkDX2, MarkDX3 and MarkDX4 were filed belatedly on record on 09.04.2015 vide application of defendant, which was allowed subject to costs. None amongst the documents aforesaid of defendant were filed with the written statement. As has been held in above findings on Issue no1, defendant has failed to prove the documents MarkDX1, MarkDX2 and MarkDX4. Also, defendant has failed to prove that the quantity of nickel supplied to plaintiff/respondent was 391 kg. or it was of value of Rs. 10 Lakh, approximately.
20. Counter claimant/defendant has also failed to prove on record any complaint of any customer of defendant qua defect in goods supplied by plaintiff to defendant and further supplied by defendant to its customer. Counter claimant/defendant has also failed to prove on record of debit note of any customer issued to counter claimant/defendant on [CASE NUMBER] ascertaining of any goods defective in nature, supplied by plaintiff to defendant and further supplied by defendant to customer. In the course of crossexamination, PW1 failed to elicit whether debit note, copy MarkDX4 was mentioned in the account books of defendant. It has also been held in the findings on Issue no1 above that in reply Ex PW1/6 dated 09.06.2008, sent by counsel for defendant to counsel for plaintiff in response to notice Ex PW1/4 of plaintiff dated 28.05.2008, there is no whisper of loss of goods suffered by defendant to the tune of Rs. 5.5 Lakh nor defendant claimed loss of reputation to the extent of Rs. 1 Lakh, as was so mentioned in MarkDX4 dated 28.05.2008. Creation of any such debit note date 28.05.2008, as is in MarkDX4, in normal course of business would have resulted in defendant having made its necessary entry in its account books in the open ledger account of plaintiff company in its books. No account books of defendant company containing ledger account of plaintiff finding mention of said Rs. 6.5 Lakh as per debit note MarkDX4 have been produced alongwith the counter claim in terms of [SECTION] of [ACT] nor its copies have been proved in the course of evidence of defendant. Best evidence in the form of the ledger account of plaintiff in the books of defendant company accordingly has been [CASE NUMBER] withheld and for nonproduction of the same, I accordingly presume in terms of illustration (g) of [SECTION] of [ACT] that in case such best evidence would have been produced, it would have been unfavourable to defendant company, who withheld it. With the counter claim or with the written statement, the postal receipt dated 28.05.2008 Ex DW1/6 and UPC receipt dated 28.05.2008 Ex DW1/7 were not filed but were so filed on 09.04.2015 when application of defendant was allowed subject to payment of cost. These documents Ex DW1/6 and Ex DW1/7 find mention of the postal impression of Post Office [ENTITY], Delhi110007. I find force in the arguments of Ld. Counsel for plaintiff on this facet, as eyebrows are raised with regard to truthfulness of debit note MarkDX4 and postal receipt Ex DW1/6 and UPC receipt Ex DW1/7, since, the addresses of defendant were of [ENTITY] and [ENTITY] and these documents Ex DW1/6 and Ex DW1/7 were bearing Post Office stamp of [ENTITY], Delhi110007, which was 3040 kms. away from the addresses of defendant, for which even DW1 failed to give any cogent reason for sending someone to such a distance for such postal purposes. In view of the discussions, herein above, defendant is held not entitled to any amount as claimed in the counter claim. Issue no5 is [CASE NUMBER] decided against the defendant and in favour of the plaintiff.
Findings on Issue No(6) If the answer to issues no. 5 is in affirmative whether the defendant is entitled to any interest if so at what rate, for which period and for what amount? OPD
21. In view of findings on Issue no5 above, since defendant is held not entitled to any sum claimed in the counter claim, defendant is also held not entitled for any interest whatsoever. Issue no6 is decided in favour of plaintiff and against the defendant accordingly.
RELIEF
22. In view of my findings on the above issues, the suit of the plaintiff and counter claim of counter claimant/defendant are dismissed. No order as to costs.
[CASE NUMBER]
23. Decree sheet be prepared accordingly and file be consigned to record room.
Announced in open Court on 30th Day of May, 2015.
([ENTITY]) Addl. Distt. Judge(Central)01, (AD) Tis Hazari Courts, Delhi. [CASE NUMBER]