TaxTMI 
TaxTMI 
2025 (1) TMI 59
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....assed by the District Judge, Commercial Court-02, South West, Dwarka Courts, Delhi, in CS (Comm) No. 324/2022 & Counter-Claim No. 05/2023 [hereinafter referred to as "Impugned Judgment and Decree"], whereby the Suit for Recovery filed by the Appellant/Plaintiff was dismissed and Counter-Claim filed by the Respondent/Defendant was allowed against the Appellant/Plaintiff for an amount of Rs. 7,62,930/- alongwith interest at 9% per annum from the date of filing of Counter-Claim till realization. 3. Two Appeals were filed by the Appellant/Plaintiff; RFA(COMM) 212/2023 captioned as Sanjana Agarwal vs. Namoshivai Apparels Private Limited was filed by the Appellant/Plaintiff seeking to set aside the Impugned Judgment and Decree, whereby the Suit for Recovery filed by the Appellant/Plaintiff, in the sum of Rs. 74,91,565.70/- along with interest and costs, was dismissed by the learned Commercial Court. The second appeal, i.e., RFA(COMM) 213/2023 captioned as Sanjana Agarwal vs. Namoshivai Apparels Private Limited was filed by the Appellant/Plaintiff against the Impugned Judgment and Decree, whereby the Counter-Claim of the Respondent/Defendant was allowed. Both these appeals seek to impu....
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....is entitled for decree of sum of Rs. 7,62,930/-, as prayed in the counter claim OPD 4. Whether the defendant is entitled for any interest, if so, on what amount and at what rate OPD 5. Relief" 8. The learned Commercial Court held that it is admitted that there were business transactions between the parties, and the crux of the dispute revolved around 5 invoices numbered 615, 620, 628, 630, and 654 [hereinafter referred to as "5 disputed invoices"] whilst Molmek claimed that these invoices were forged, NAPL asserted that they were genuine. It claimed that goods were supplied against these invoices but the credit was not given by Molmek. NAPL relied on invoices, ledger entries, "e-way bills", GSTR-1 B2B Invoices - Receiver-Wise-Summary, and WhatsApp chats in support of its Counter-Claim. 9. Molmek did not examine any witness. NAPL examined five witnesses, including its Authorized Representative (CCW-1), Accountant of NAPL (CCW-2), a Bank Official who attested bank statements of NAPL (CCW-3), a CGST official (CCW-4), and the driver who delivered goods on behalf of NAPL to Molmek (CCW-5). 10. The learned Commercial Court observed that except for the 5 dispute....
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....nts. It found the Molmek's demand for only Rs. 1,00,000/- on 06.01.2021, was inconsistent with its claim of a much larger outstanding amount. 16. The learned Commercial Court concluded that Molmek failed to prove its claim for recovery of Rs. 74,91,565.70/-. Conversely, it held that NAPL was entitled to its Counter-Claim of Rs. 7,62,930/- and awarded interest at 9% per annum from the date of filing of the Counter-Claim until realization. The parties were directed to bear their own costs. This led to the filing of the present Appeals by Molmek. Contentions of Molmek 17. The learned Counsel for Molmek, at the outset, contests that as Counter-Claim was deemed to be a separate and new suit, NAPL were bound by Section 12A of Commercial Courts Act, 2015, to again initiate pre-suit mediation, once it filed its Counter-Claim, and as such the Counter-Claim, was impermissible, in absence of the pre suit mediation. Reliance in this regard is placed on M/s. Patil Automation Private Limited and Ors. Vs Rakheja Engineers Private Limited (2022) 10 SCC 1. 18. In addition, learned Counsel for Molmek contended that NAPL did not prove its statement of account in terms of Section 34 of....
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....etails the goods delivered to Molmek below: "11. I say that the Counter Claimant Company raised the following invoices/Debit Notes on the Defendant against sale of said goods and products: S. No. Date Invoice No. Amount (Rs.) 1 20-10-2018 NAPL/2018-19/267 1,90,080 2 20-10-2018 NAPL/2018-19/268 6,00,600 3 29-10-2018 NAPL/2018-19/269 3,08,640 4 02-11-2018 NAPL/2018-19/273 2,01,840 5 15-11-2018 NAPL/2018-19/744 2,83,200 6 02-01-2019 NAPL/2018-19/934 8,94,712 7 09-02-2019 NAPL/2018-19/277 21,76,802 8 11-02-2019 NAPL/2018-19/278 2,95,680 9 25-02-2019 NAPL/2018-19/1052 22,14,242 10 26-02-2019 NAPL/2018-19/1053 3,33,600 11 28-02-2019 NAPL/2018-19/1065 7,99,584 12 28-02-2019 NAPL/2018-19/1067 18,97,202 13 08-03-2019 NAPL/2018-19/1109 3,08,160 14 14-03-2019 NAPL/2018-19/1132 1,73,280 15 22-03-2019 NAPL/2018-19/1162 15,94,561 16 04-04-2019 NAPL/19-20/16 2,65,920 17 03-06-2019 NAPL/19-20/264 2,54,400 18 04-06-2019 NAPL/19-20/268 4,08,300 19 10-06-2019 ....
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....0 10 06-04-2019 2,06,680 11 16-04-2019 10,00,000 12 07-05-2019 3,80,000 13 07-05-2019 10,00,000 14 17-05-2019 5,00,000 15 17-05-2019 5,50,000 16 30-05-2019 2,50,000 17 06-06-2019 5,00,000 18 06-06-2019 1,84,000 19 17-06-2019 2,33,734 20 16-07-2019 1,50,000 21 06-08-2019 6,50,000 22 09-09-2019 5,00,000 23 30-09-2019 2,00,000 24 07-10-2019 3,00,000 25 16-10-2019 2,25,000 26 07-12-2019 2,00,000 27 07-01-2020 2,00,000 28 06-02-2020 3,00,000 29 06-03-2020 2,00,000 30 08-06-2020 1,00,000 31 07-07-2020 1,50,000 32 06-08-2020 1,00,000 Total (Rs.) 1,57,49,516/- Copy of bank statement of Counter Claimant is exhibited herewith as Exhibit CCW-1/2." 20. The learned Counsel for NAPL contends that the total value of the goods purchased is Rs.5,70,59,659/-, while the payment made to Molmek is Rs.5,78,22,589.50/-. Thus, the sum of Rs. 7,62,930.50/- is due from Molmek. It is contended that the disputes have only arisen with respect to the 5 disputed invoices totalling to Rs.....
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....ff should not be permitted to file an application for interim relief as a subterfuge to wriggle out of the requirement of mandatory pre-institution mediation. The Court held that in order that the provision is not bypassed, the learned Commercial Court has a role, although a limited one, to examine whether the suit contemplates an urgent relief so as to keep a check that legislative intent behind the enactment of Section 12A of the CC Act is not defeated. The relevant extract of the decision in Yamini Manohar case is set out below: "11. Having stated so, it is difficult to agree with the proposition that the plaintiff has the absolute choice and right to paralyse Section 12-A of the CC Act by making a prayer for urgent interim relief. Camouflage and guise to bypass the statutory mandate of pre-litigation mediation should be checked when deception and falsity is apparent or established. The proposition that the commercial courts do have a role, albeit a limited one, should be accepted, otherwise it would be up to the plaintiff alone to decide whether to resort to the procedure under Section 12-A of the CC Act. An "absolute and unfettered right" approach is not justified if ....
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....ngly." [Emphasis is ours] 25. There is no cavil that under the provisions of the Code of Civil Procedure, 1908, a counter-claim is to be treated as a plaint and governed by the rules applicable to plaint. However, in the case of commercial disputes to say that each counter-claim will be subject to pre-institution mediation process separately when the Plaintiff has already exhausted the remedy of pre-institution mediation, may not be apposite. The object of the CC Act is to ensure speedy resolution of commercial disputes to accelerate economic growth and improve the international image of the Indian Justice System and to restore the faith of the investors. Once a party has taken steps to exhaust the remedy of pre-institution mediation to then ask the opposite party in a case where the subject matter of dispute is entirely the same, to once again undertake pre-institution mediation, prior to filing its counter-claim would defeat the very purpose of the CC Act and delay adjudication of the commercial dispute between the parties. 25.1 The Supreme Court in Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP (2020) 15 SCC 585 case has held that the statement of object....
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....he commercial disputes, only to highlight that the trial of the commercial dispute suits is put on fast track for disposal of the suits expeditiously. Various provisions of the Act referred to above and the amendments inserted to the Civil Procedure Code by the Schedule is to ensure speedy resolution of the commercial disputes in a time bound manner. The intent of the legislature seems to be to have a procedure which expedites the disposal of commercial disputes and thus creates a positive environment for investment and development and make India an attractive place to do business." [Emphasis is ours] 25.2 The Supreme Court analysed the provisions of the CC Act and based on such analysis held that statutory provisions of the CC Act and the language therein should be interpreted purposefully to facilitate the swift resolution of commercial disputes, thereby benefiting litigants involved in trade and commerce and contributing to the country's economic growth. The relevant extract reads as follows: "42. The object and purpose of the establishment of Commercial Courts, Commercial Divisions and Commercial Appellate Divisions of the High Court is to ensure that t....
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....s were also being raised by both, simultaneously. 29. NAPL has established that between the period 20.10.2018 and 08.01.2021, it supplied goods to Molmek and raised 46 invoices/debit notes totalling to a sum of Rs. 4,20,73,073.50/-, the details of these invoices are set out in paragraph 19 above. It also produced its bank statement to evidence that a sum of Rs. 1,57,49,516/- was paid by NAPL to Molmek, as is set out in paragraph 19.1 above. Thus, the accounts between the two parties were reconciled in the following manner: S.No Description Amount (Rs.) (i) Debit notes/invoices of NAPL Rs. 4,20,73,073.50/- (ii) Payment made by NAPL Rs. 1,57,49,516/- (iii) Goods supplied by Molmek Rs. 5,70,59,659/- (iv) Total (i + ii) - iii Rs. 7,62,930.50/- 30. Molmek in his reply to Counter Claim did not deny that NAPL had business relationship with Molmek which included supply of goods by NAPL to Molmek, however, it is contended that, after 15.02.2022, no goods were supplied by NAPL to Molmek. 30.1 The defence raised by Molmek in its reply to Counter-Claim is that the 5 disputed invoices are false invoices, and that no goods were ever delivered....
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....er has been mentioned but the remaining columns are blank. It is correct that invoices mentioned at point X-1 to X-5 does not bear signature of plaintiff I have never gone to the premises of the plaintiff company to deliver any material at any point of time. I do not know who has delivered the material against the said invoices. Volunteered, my job is to look after the accounts of the defendant company only. I did not hand over the said invoices to anyone to take the signatures at the time of delivery. Volunteered, it is not my job as my job was only to prepare invoices of the company bring accountant. I have generated the e-way bills of invoices as mentioned at point X-1 to X-5 on ExCCW2/1. We used to hire the vehicles for transporting the material. I do not know who own the vehicles mentioned in the e-way bills. Again said, the vehicle No. DLILX6372 mentioned in the e-way bill No. 7111 2233 5131 dated 28.02.2020 and e-way bill No. 721125443559 dated 17.03.2020 is owned by one person namely Sonu. I am not aware about the ownership of the other vehicles mentioned in the e-way bills corresponding to the invoices as mentioned at point X-1 to X-5, 1 have not handed over e-way....
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.... books of account when relevant.-- [Entries in the books of account, including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability." 37.1 However, NAPL's claim is not founded on book entries alone. In addition to the ledgers, NAPL has led evidence as is discussed above which includes statement of witnesses including a CGST official (CCW-4). It has established "e-way bills" and produced copies of the GST Returns as well. The reliance placed by Molmek on this provision of the Indian Evidence Act, 1872 is unpersuasive. 38. Rule 138 of CGST Rules provide for the rules for generation of "e-way bills". Sub-Rule (11) and (12) of Rule 138 of the CGST Rules provide that the details of "e-way bills" generated under Rule 138 of the CGST Rules shall be available on the common portal and the supplier or the recipient, as the case may be, shall communicate his acceptance or rejection of the assessment of the goods covered in the "e-way bills". Sub-Rule (12) of Rule 138 of the CGST Rule....