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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 ..... 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 impugn the Judgment passed by the learned Commercial Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PD 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 disputed invoices, all other transactions between the parties were admitted. Neither party brought original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Indian Evidence Act, 1872 [hereinafter referred to as "Evidence Act"], and that merely providing the extracts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes 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 NAPL/19-20/292 4,44,850 20 18-07-2019 NAPL/19-20/375 4,39,791 21 18-07-2019 NAPL/19-20/376 5,00,499 22 12-08-2019 NAPL/19-20/422 4,43,520 23 21-09-2019 NAPL/19-20/476 27,33,979 24 07-10-2019 NAPL/19-20/486 4,68,791 25 10-10-2019 NAPL/19-20/487 6,85,884 26 15-10-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020 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 the learned Commercial Court, however, this amount was not disputed by NAPL. Learned Counsel for NAPL further submitted that the summoned CGST official (CCW-4) appeared and brought with him the record of computer generated duly, certified "e-way bills" pertaining to NAPL, which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flage 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 should show and indicate the need for an urgent interim relief. This is the precise and limited exercise that the commercial courts will undertake, the contours of which have been explained in the earlier paragraph(s). This will be sufficient to keep in check and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Commercial Courts Act amends various provisions of the Code of Civil Procedure and thereby makes significant departure from the Code. After Order 13 of the Code, Order 13-A - "Summary Judgment" has been inserted. Order 13-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putes, 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 is ours] 26. In the present case, non-starter report which is available shows that the service of the pre-institution mediation was done through email to NAPL and that there was no appearance of NAPL le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Court. The accountant stated, on oath on 24.02.2023 that he had prepared the invoices and that all invoices bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 to NAPL. According to Molmek, this established that the invoices raised by NAPL are false. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) has been made available does not communicate his acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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