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TMI Blog2025 (1) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the judgment of Yamini Manohar vs. T.K.D Keerthi [ 2023 (10) TMI 1375 - SC ORDER ], relying on the M/s. Patil Automation case, has held that pre-litigation mediation is mandatory unless the suit contemplates urgent relief. It was further held that a plaintiff 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. In the present case, pre-litigation mediation was initiated by Molmek prior to instituting the suit. Molmek has relied upon the copy of the Non-Starter Report of the authority appointed for pre-institution mediation, South-West, DLSA, Dwarka Courts, New Delhi, dated 15.03.2022 to submit NAPL did not attend the Mediation proceedings as these were closed as a non-starter . NAPL filed its combined Written Statement and Counter-Claim on 31.08.2022 raising a Counter-Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Dhiraj Abraham Philip and Ms. Shrishti Agarwal, Advocates. JUDGMENT TARA VITASTA GANJU, J.: CM Appl.49338/2023 in RFA (COMM) 213/2023 [Stay] 1. A Coordinate Bench of this Court by an order dated 22.09.2023 passed in RFA(COMM) 213/2023 directed Molmek to deposit 75% of the decretal amount during the pendency of the present Appeals. The report of the Registry is that no decretal amount has been deposited till today by Molmek. In these circumstances, CM Appl. 49338/2023 is dismissed. RFA(COMM) 212/2023 RFA(COMM) 213/2023 2. The present Appeals filed by Appellant/Plaintiff impugn the judgment dated 07.06.2023, passed 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 Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g invoices and maintaining a corresponding running account. The crux of its defence and subsequent Counter-Claim for Rs. 7,62,930/- centres on five specific invoices totalling Rs. 82,35,736.50/-, which NAPL claims Molmek/Plaintiff has failed to account for. 7. By an Order dated 31.01.2023, the learned Commercial Court, framed the following issues: 1. Whether the plaintiff is entitled for decree of sum of Rs. 74,91,565.70/-, as prayed for OPP 2. Whether the plaintiff is entitled for any interest, if so, on what amount and on what rate OPP 3. Whether the defendant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmad Aziz Anr. 2017 SCC OnLine Del 10229, Om Prakash v. Amit Choudhary Ors. 2019 SCC OnLine Del 9311, Ishwar Bhai C. Patel v. Harihar Behera Anr. (1999) 3 SCC 457, and Vidhyadhar v. Manikrao Anr. AIR 1999 SC 1441, to record that the party setting up a claim must prove its case, and an adverse inference can be drawn if a party does not lead evidence or enter the witness box. 15. The learned Commercial Court also analyzed WhatsApp chats between the parties, which corroborated the NAPL's version of events. 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the facts are undisputed with respect to the 57 invoices, where goods have been supplied by Molmek, however, Molmek has not taken into account the goods supplied by NAPL to Molmek at their premises at West Punjabi Bagh, New Delhi. It is averred that NAPL also supplied various goods for the period from 20.10.2018 onwards to 08.01.2021 to Molmek. Learned counsel for NAPL has relied on the extract of evidence of (CCW-1), of Mr. Raghav Kant in this regard, which details 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 NAP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 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.82,35,736.5/- and it is this discrepancy in the running accounts between the parties that has led to an outstanding. 20.1 Learned Counsel for NAPL further contended that payments were made from 04.01.2019 onwards till 06.08.2020, which included the payment referred to on the Whatsapp chat in the sum of Rs. 1,00,000/-. 20.2 Learned Counsel for NAPL further submitted that Molmek did not prove any of its invoices as no evidence was led by him before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the pre-institution mediation under Section 12-A of the CC Act is mandatory, as held by this Court in Patil Automation [Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 : (2023) 1 SCC (Civ) 545]. 12. The words contemplate any urgent interim relief in Section 12-A (1) of the CC Act, with reference to the suit, should be read as conferring power on the court to be satisfied. They suggest that the suit must contemplate , which means the plaint, documents and facts sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and reasons for the enactment of the CC Act was the early and speed resolution of the commercial disputes and thus, there was an amendment made and fast track procedure set in place by the CC Act. The relevant extract is set out below: 31 The object and purpose of the Commercial Courts Act is to ensure that the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of the High Courts and also to ensure that the commercial cases are disposed of expeditiously, fairly and at reasonable cost to the litigant. 34. The Schedule to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions 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 the cases involved in commercial disputes are disposed of expeditiously, fairly and at reasonable cost to the litigants. Keeping in view the object and purpose of the establishment of the Commercial Courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country. On the above reasonings, I agree with the conclusion arrived at by my esteemed Brother A.S. Bopanna, J. [Emphasis i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,59,659/- (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 with respect to those invoices. 31. NAPL, on the other hand, has provided both e-way bills and GST Returns with respect to the 5 disputed invoices. A tabular representation of the documents filed by NAPL is below: Date Invoice No. Amount (Rs.) E-Way Bill No. GST Return 15-2-2020 NAPL/19-20/625 22,65,900 731119869157 Filed 24-2-2020 NAPL/19-20/620 24,36,525 741121546014 Filed 28-2-2020 NAPL/19-20/628 5,57,397 711122625974 Filed 29-2-2020 NAPL/19-20/630 20,44,302 741122625974 Filed 17-3-2020 NAPL/19-20/654 9,31,612.50 721125443559 Filed Total (Rs.) Rs. 82,35,736.50/- 32. The accountant (CCW-2) of NAPL appeared in the witness box and the duplicate copies of debit notes and invoice were exhibited as CCW2/1 (colly) by the learned Commercial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 bills to the transporter. Volunteered, it was not my job as I was working as accountant. I have not placed on recced any document to show that the goods were delivered to the plaintiff. [Emphasis is ours] 33. The authorized representative of the Banker of NAPL (CCW-3) produced the bank statement of NAPL evidencing the payments made to Molmek. NAPL also produced testimony of the driver of the vehicle (CCW-5). 34. The learned Commercial Court after examining the documents and evidence produced also relied on a series of Whatsapp chats, which were not denied by Molmek and the ledger details filed on 17.03.2020 to give a finding that an amount of Rs. 84,56,058.70/- was outstanding. 34.1 Molmek had contended that payments aggregating Rs.3.5 lacs were made by NAPL on 08.06.2020, 07.07.2020 and 06.08.2020. There would be no need to make these payments if on those dates amounts were outstanding and payable by Molmek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rules provides that if a rejection is not made available within 72 hours on the common portal or at the time of delivery, it shall be deemed that the recipient has accepted the goods. Sub-Rule (11) and (12) of Rule 138 of the CGST Rules are reproduced below: 138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill. ... (11) The details of the e-way bill generated under this rule shall be made available to the - (a) supplier, if registered , where the information in Part A of FORM GST EWB-01 has been furnished by the recipient or the transporter; or (b) recipient, if registered, where the information in Part A of FORM GST EWB-01 has been furnished by the supplier or the transporter, on the common portal, and the supplier or the recipient, as the case may be, shall communicate his acceptance or rejection of the consignment covered by the e-way bill. (12) Where the person to whom the information specified in sub-rule (11) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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