IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant's name (cover page)APPELLANT
VERSUS
Respondent's name (cover page)RESPONDENT
INDEX
| S.NO. | PARTICULARS | PAGE NO. |
|---|
| 1. | E-COURT FEE | |
| 7. | LIST OF DATES AND EVENTS | |
| 9. | MEMORANDUM OF APPEAL (COMMERCIAL) UNDER SECTION 13 OF THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND COMMERCIAL APPELLATE DIVISION OF THE HIGH COURT ACT, 2015 READ WITH SECTION 10 OF THE DELHI HIGH COURTS ACT, 1966 AGAINST THE IMPUGNED ORDER DATED Date of the impugned order PASSED BY THE LD. DISTRICT JUDGE-05 (COMMERCIAL COURT), CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI IN CS(COMM) NO. Commercial suit number/2022, ALONG WITH SUPPORTING AFFIDAVIT | |
| 10. | ANNEXURE A-1 – COPY OF THE IMPUGNED ORDER DATED Date of the impugned order PASSED BY THE LD. DISTRICT JUDGE-05 (COMMERCIAL COURT), CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI IN CS(COMM) NO. Commercial suit number/2022 | |
| 11. | ANNEXURE A-2 (COLLY.) – COPY OF THE COMMERCIAL SUIT BEARING NO. Commercial suit number/2022 FILED BY THE RESPONDENT BEFORE THE LD. DISTRICT JUDGE-05 (COMMERCIAL COURT), CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI, ALONG WITH DOCUMENTS | |
| 12. | ANNEXURE P-3 – COPY OF THE WRITTEN STATEMENT FILED BY THE APPELLANT IN THE COMMERCIAL SUIT FILED BY THE RESPONDENT | |
| 13. | ANNEXURE P-4 – COPY OF THE REPLICATION FILED BY THE RESPONDENT TO THE WRITTEN STATEMENT FILED BY THE APPELLANT | |
| 14. | ANNEXURE P-5 – COPIES OF THE AFFIDAVITS OF EVIDENCE OF THE APPELLANT AND ITS WITNESSES FILED BEFORE THE LD. TRIAL COURT | |
| 15. | APPLICATION UNDER ORDER 41 RULE 5 READ WITH SECTION 151 OF THE C.P.C., ALONG WITH AFFIDAVIT | |
| 16. | APPLICATION UNDER SECTION 151 OF THE C.P.C. ON BEHALF OF THE APPELLANT FOR EXEMPTION FROM FILING CERTIFIED COPIES OF THE ANNEXURES, ALONG WITH AFFIDAVIT | |
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (court fee page)
ADVOCATES
Appellant's address line.
Mob No: Appellant's mobile number (court fee page)
Email:
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant's name (court fee page)APPELLANT
VERSUS
Respondent's name (court fee page)RESPONDENT
COURT FEES
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant's name (notice of motion)APPELLANT
VERSUS
Respondent's name (notice of motion)RESPONDENT
NOTICE OF MOTION
Respected Sir,
Please find enclosed a copy of the above-mentioned appeal, which is being filed before this Hon'ble Court on Date of filing appeal and which is likely to be listed on an appropriate date thereafter, in accordance with the directions of this Hon'ble Court. Please take notice accordingly.
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (notice of motion)
ADVOCATES
Appellant's address line.
Mob No: Appellant's mobile number (notice of motion)
Email:
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant's name (urgent application)APPELLANT
VERSUS
Respondent's name (urgent application)RESPONDENT
URGENT APPLICATION
To,
The Deputy Registrar,
High Court of Delhi,
New Delhi.
Respected Sir,
Kindly treat the accompanying appeal and applications as urgent, in accordance with the Rules of this Hon'ble High Court. The grounds of urgency are as enumerated in the accompanying appeal.
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (urgent application)
ADVOCATES
Appellant's address line.
Mob No: Appellant's mobile number (urgent application)
Email:
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant's name (certificate)APPELLANT
VERSUS
Respondent's name (certificate)RESPONDENT
CERTIFICATE
It is certified that the complete paper book / trial court record has been filed by the Appellant along with the present Memorandum of Appeal, which is necessary for the adjudication of the present case, and that no document other than those forming part of the said record has been filed in this Appeal.
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (certificate)
ADVOCATES
Appellant's address line.
Mob No: Appellant's mobile number (certificate)
Email:
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant's name (memo of parties)APPELLANT
VERSUS
Respondent's name (memo of parties)RESPONDENT
MEMO OF PARTIES
Appellant partnership firm name
Through its Partners
Appellant's partners' names
Appellant's address lineAPPELLANT
VERSUS
M/S. Respondent proprietorship firm name
Through its Proprietor
Respondent proprietor's name
Respondent's address lineRESPONDENT
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (memo of parties page)
ADVOCATES
Appellant's address line.
Mob No: Appellant's mobile number (memo of parties page)
Email:
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO. Appeal (FAO) number OF 2024
IN THE MATTER OF:
Appellant partnership firm name (cause title)
Through its Partners
Appellant's partners' names
Appellant's address lineAPPELLANT
VERSUS
M/S. Respondent proprietorship firm name (cause title)
Through its Proprietor
Respondent proprietor's name
Respondent's address lineRESPONDENT
MEMORANDUM OF APPEAL UNDER 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 THE IMPUGNED ORDER DATED Date of the impugned order PASSED BY SH. Trial judge's name, LD. DISTRICT JUDGE-05, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI IN CS(COMM.) NO. Commercial suit number/2022, TITLED AS "Plaintiff's name in suit title VS. Defendant's name in suit title"
MOST RESPECTFULLY SHOWETH:
1.That the present Appeal is being filed by the Appellant under Section 13 of the Commercial Courts Act, 2015 (the "Act"), against the Order dated Date of the impugned order passed by Sh. Trial judge's name, Ld. District Judge-05, Central District, Tis Hazari Courts, Delhi in CS(Comm.) No. Commercial suit number/2022, titled as "Plaintiff's name in suit title Vs. Defendant's name in suit title" (the "Impugned Judgment"), whereby the Ld. Trial Court decreed the suit filed by the Respondent in its favour and against the Defendant (the Appellant herein), and further held that the Respondent is entitled to a sum of Decretal amount along with interest @ Interest rate per annum awarded in the decree per annum from the date of last payment, i.e. Date of last payment, till realisation, together with costs. The said Impugned Judgment is impugned in the present Appeal and is annexed hereto as Annexure A-1.
2.BRIEF FACTS:
CASE OF THE PLAINTIFF (RESPONDENT HEREIN)
A.That it is the case of the Plaintiff that the Plaintiff is a wholesaler, distributor, exporter and trader of electronic components such as Goods dealt in by the plaintiff. The Defendant is a partnership firm engaged in the manufacture and trading of electronic items such as Goods dealt in by the defendant. On various occasions, the Defendant placed purchase orders with the Plaintiff, which were duly complied with by the Plaintiff by raising Number of invoices raised invoices along with other documents, as alleged.
B.It is alleged that the defendant induced the plaintiff to part with goods by giving false assurances of payment as per the invoices raised. When the defendant failed to honour its promise, the plaintiff instituted a pre-institution mediation application before the Mediation Centre, Delhi, and despite due service, the defendant did not appear, whereupon the competent authority issued a non-starter report. The last payment of Rs. Last payment amount/- was made on Date of last payment, and thereafter the outstanding amount is Rs. Suit recovery amount/- as alleged.
CASE OF THE DEFENDANT (APPELLANT HEREIN)
C.It is submitted that the defendant is a partnership firm established on Date of establishment of appellant firm, having GST No. Appellant firm's GST number, and that it carried on the trade of electronic items such as wires and switches. It used to purchase material from the plaintiff, but the running account between the parties was settled by mutual consent, and thereafter no business dealings subsisted between them. In view of the settlement of the running account, no liability is owed by the defendant to the plaintiff.
D.It is submitted that the goods in question were never received by the defendant. The invoices described as unpaid in the plaint are fabricated documents prepared by the plaintiff to make a wrongful claim of Rs. Suit recovery amount/-. The defendant never placed any purchase order for the goods mentioned in those invoices, nor were any such articles ever delivered to the defendant.
E.Thereafter, on Date of filing of the suit, the Respondent filed a suit bearing CS (Commercial) No. Commercial suit number for recovery of Rs. Suit recovery amount/- along with pendentelite and future interest @ Interest rate claimed in the suit% per annum and costs, against the Appellant, before the Ld. District Judge, Trial court name and venue, and summons for appearance, in the prescribed proforma, were duly served upon the Appellant, and Counsel for the Appellant appeared before the Ld. Trial Court. A copy of the suit bearing CS (Comm.) No. Commercial suit number, along with documents, is annexed as ANNEXURE A-2 (Colly.).
COURT PROCEEDINGS:-
F.The plaintiff is relying upon certain electronic evidence which is not supported by a certificate under Section 65-B of the Indian Evidence Act, and hence those documents cannot be taken into account.
G.From the pleadings of the parties, the following issues were framed by the Ld. Trial Court vide order dated Date of framing of issues:-
1.Whether the plaintiff is entitled to the suit amount as prayed for? OPP
2.Whether the plaintiff is entitled to any interest as prayed for, and if so, for which period and at what rate? OPP
3.Relief.
H.That the defendant moved an application under Order XI Rule 1 CPC seeking permission to place on record its bank statements issued by Yes Bank for the periods First bank statement period and Second bank statement period. As per those statements, the defendant had paid the plaintiff First payment amount/- on Date of first payment, Second payment amount/- on Date of second payment, Third payment amount/- on Date of third payment and Fourth payment amount/- on Date of fourth payment.
I.PW-1 had deposed in cross-examination that the defendant had made the last payment only on Date of last payment and that thereafter not a single penny was paid. The said application was allowed and the bank statements were taken on record.
J.That the plaintiff also came forward with a similar application and sought permission to file certain documents purporting to suggest that the payments mentioned above were not made by the defendant but by a proprietorship firm which the mother of the partners of the defendant was running. It is submitted that the present case is against the partnership firm. The plaintiff had filed another case against the proprietorship firm, but the same has already been dismissed, as it was filed against the proprietor of that firm, who had expired way back on Date of death of proprietor of the other firm.
K.In the present case, the payments were made by the defendant on Date of first payment, Date of second payment, Date of third payment and Date of fourth payment, and hence those payments could not have been made by the proprietor of Name of proprietorship firm of deceased proprietor, i.e. the mother of the partners of the defendant, as she had expired in 2017 itself. Consequently, the application of the plaintiff was dismissed.
L.That the plaintiff examined two witnesses, namely PW-1, PW1 witness's name, who is the proprietor himself and who repeated the contents of the plaint in his affidavit in evidence Ex. PW-1/A, and PW-2, PW2 witness's name, who is one of the directors of Witness's company name.
M.The defendant examined one of its partners, DW1 partner's name, as DW-1, who deposed that the plaintiff and the defendant were engaged in business with each other, but the running account was settled between them, and thereafter there were no business dealings between them.
N.The Ld. Trial Court, after hearing the extensive arguments advanced by both parties, was pleased to pass a judgment dated Date of impugned judgment, whereby it decreed the suit in favour of the plaintiff (Respondent herein) and against the defendant (Appellant herein), and held that the plaintiff is entitled to Rs. Decretal amount/- along with interest @ Interest rate decreed by trial court% per annum from the date of the last payment, i.e. Date from which interest was decreed, till realisation, along with costs.
3.That the Appellant, being aggrieved by the impugned judgment dated Date of impugned judgment passed by the Ld. Trial Court, has preferred the present Appeal and submits 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 conjectures and surmises.
B.That the Ld. Trial Court erred in holding that the suit was filed within the period of limitation. The last acknowledged payment was made on Date of last acknowledged payment, and as per Article 18 of the Limitation Act, 1963, the period of limitation expired on Date of expiry of limitation period. 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, rendering the claim time-barred. Hence, the Appellant relies upon the citation in the case titled Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, wherein the Hon'ble Supreme Court emphasised strict adherence to the statutory period of limitation.
C.Because the Respondent failed to establish delivery of the goods against the invoices. The invoices produced were unacknowledged, lacking the signatures or stamps of the Appellant, which is mandatory as per commercial practice. The electronic evidence relied upon was not accompanied by a valid certificate under Section 65-B of 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 the invoice dated Date of invoice Ex. PW1/1 (Ex. PW1/1) belongs to the proprietorship firm of Late Name of deceased proprietor and not to the Appellant's partnership firm. The Ld. Trial Court wrongly inferred that the goods were delivered to the Appellant without any evidence of actual receipt. The e-way bill referred to by the Respondent contained discrepancies in matching the invoice details, creating doubt as to 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 as to its authenticity.
E.Because the Appellant's bank statements demonstrated payments of Rs. Amount of payments made after last acknowledged payment made after Date of last acknowledged payment. 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 any evidence of objection being raised at the relevant time, indicating settlement of accounts. Reliance is placed on K. Saraswathy v. P.S.S. Somasundaram Chettiar, (1989) 4 SCC 527, which emphasises 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 the issues, causing prejudice to the Appellant. The interest rate of Interest rate decreed by trial court% per annum granted by the Ld. Trial Court is excessive, arbitrary and penal in nature, contrary to prevailing commercial practice. In Central Bank of India v. Ravindra, (2002) 1 SCC 367, the Hon'ble Supreme Court cautioned against the award of penal rates of interest in commercial transactions.
4.That the Appellant craves leave to add to, amend, alter, modify and/or delete any of the grounds set out above, as may be found necessary in the facts and circumstances of the present case.
5.That the present Appeal is filed within the period of limitation prescribed under Section 13 of the Commercial Courts, Commercial Appellate Division of High Courts Act, 2015.
6.That the Appellant states that no similar First Appeal or other petition challenging the Impugned Judgment passed by the Ld. Trial Court has been filed by the Appellant, either before this Hon'ble Court or before any other Court, involving the subject matter of the present Appeal, nor is any such proceedings pending or disposed of.
7.That the present First Appeal is filed bona fide and in the interest of justice. That the annexures filed with the Appeal are true copies of their respective originals.
8.That the requisite Court fee in respect of the present Appeal has been paid and affixed.
PRAYER:-
a)Call for the record of the Ld. Trial Court of Sh. Trial judge's name, Ld. Trial judge's designation, Trial court complex and venue, in CS(Comm.) No.Commercial suit number/Year of commercial suit titled as “Plaintiff's name in suit title Vs Defendant's name in suit title”.
b)Accept the present Appeal and set aside and reverse the impugned judgment dated Date of impugned judgment passed by the Ld. Trial Court of Sh. Trial judge's name, Ld. Trial judge's designation, Trial court complex and venue, in CS(Comm.) No.Commercial suit number/Year of commercial suit titled as “Plaintiff's name in suit title Vs Defendant's name in suit title”.
c)Pass such further or other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in favour of the Appellant and against the Respondent.
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (prayer page)
ADVOCATES
Appellant's address line.,
Appellant's address line.
Mob No: Appellant's mobile number (prayer page)
Email: Appellant's email address
VERIFICATION:-
Verified at Place of swearing affidavit on this Date of verification (appeal) day of Month and year of verification (appeal) that the contents of the 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; that nothing material has been concealed therefrom, and no part of it is false.
Appellant
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
FAO (OS) (COMM.) NO.Appeal (FAO) number (affidavit cause title) OF Year of FAO/I.A. filing.
IN THE MATTER OF:
Appellant's name (affidavit cause title)APPELLANT
VERSUS
Respondent's name (affidavit cause title)RESPONDENT
AFFIDAVIT
Affidavit of Deponent's name (supporting affidavit), aged about Deponent's age years, Partner of Deponent's partnership firm name, having office at Firm's office address line, presently at Place of swearing affidavit, do hereby solemnly affirm and declare as under:-
1.That I am a Partner of the Appellant Firm in the above case and am well conversant with the facts and circumstances of the present proceedings on the basis of the records maintained by the Appellant Firm in the regular course of its business, and 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 Paragraph Nos. Para numbers of appeal true to knowledge of the accompanying Appeal are true to my knowledge on the basis of the records maintained by the Appellant Firm, and the legal averments contained in Paragraph No. Para number of appeal based on legal advice are based on legal advice received, which I believe to be correct.
4.That the documents filed along with the present Appeal are true copies of the documents referred to and relied upon by the Appellant.
DEPONENT
VERIFICATION:-
I, the 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 Firm and that nothing material has been concealed therefrom.
Verified at Place of swearing affidavit on this Date of verification (supporting affidavit) day of Month and year of verification (appeal).
DEPONENT
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
I.A. NO.Application (I.A.) number OF Year of FAO/I.A. filing.
IN
FAO (OS) (COMM.) NO.Appeal (FAO) number (exemption application cause title) OF Year of FAO/I.A. filing.
IN THE MATTER OF:
Appellant's name (exemption application)APPELLANT
VERSUS
Respondent's name (exemption application)RESPONDENT
APPLICATION UNDER SECTION 151 CPC SEEKING EXEMPTION FROM FILING CERTIFIED COPIES AND 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 Courts Act (the ‘Act’) against the judgment dated Date of impugned judgment passed by Sh. Trial judge's name, Ld. Trial judge's designation, Trial court complex and venue, in CS(Comm.) No.Commercial suit number/Year of commercial suit titled as “Plaintiff's name in suit title Vs Defendant's name in suit title” (the ‘Impugned Judgment’). It is submitted that, in view of the averments made in the accompanying Appeal, the contents thereof may be treated as part and parcel of the present application and are not repeated herein for the sake of brevity.
2.That owing to the urgency of the matter, the Appellant is filing the present Appeal along with photocopies of the documents, which may not be in consonance with the rules prescribed by this Hon'ble Court in respect of margins, spacing between lines, font size, or which may not be fair typed copies of their respective originals or certified copies; the Appellant accordingly seeks leave of this Hon'ble Court to present the present Appeal in the said form.
3.That the Applicant/Appellant hereby undertakes to furnish true typed copies of the documents as and when directed by this Hon'ble Court.
4.That the present application is bona fide, and it is in the interest of justice that this Hon'ble Court may kindly be pleased to grant the Appellant the exemption sought 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 and/or certified copies of the dim and/or improperly formatted documents filed along with the accompanying Appeal.
b)Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
DELHIAppellant
THROUGH
DATED
Appellant's authorised signatory name (exemption application)
ADVOCATES
Appellant's address line.,
Appellant's address line.
Mob No: Appellant's mobile number (exemption application)
Email: Appellant's email address
IN THE HIGH COURT OF DELHI AT NEW DELHI
(APPELLATE CIVIL JURISDICTION)
I.A. NO.Application (I.A.) number (affidavit cause title) OF Year of FAO/I.A. filing.
IN
FAO (OS) (COMM.) NO.Appeal (FAO) number (affidavit cause title) OF Year of FAO/I.A. filing.
IN THE MATTER OF:
Appellant's name (affidavit cause title)APPELLANT
VERSUS
Respondent's name (affidavit cause title)RESPONDENT
AFFIDAVIT
Affidavit of Deponent's name (exemption affidavit), aged about Deponent's age years, Partner of Deponent's partnership firm name, having office at Firm's office address line, presently at Place of swearing affidavit, do hereby solemnly affirm and declare as under:-
1.That I am a Partner of the Appellant Firm in the present case, am well conversant with the facts of the present case, and as such am competent to depose to 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 may be read as part and parcel of this affidavit and are not repeated herein for the sake of brevity.
DEPONENT
VERIFICATION:-
Verified at Place of swearing affidavit on this Date of verification (exemption affidavit) day of Month and year of verification (appeal) that the contents of the above affidavit are true and correct to my knowledge as derived from the records of the Appellant Firm and that nothing material has been concealed therefrom.
DEPONENT
DEPONENT