Delhi District Court
Amir Chand Jain Prop Of Roop Chand Amir … vs M/S Rajdeep Paper House And Anr on 22 April, 2025
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-11 CENTRAL, THC, DELHI
CS Comm. No.1628/2023
Amir Chand Jain
Prop. of M/s Roop Chand
At: 946/1/18, Chhatta Shahji
Chawari Bazar, Delhi-110006
Also at:
89, Ground Floor,
Rishabh Vihar, Delhi-110092 ..............Plaintiff
Vs.
Deepak Bhargava
Prop. of M/s Rajdeep Paper House
At: F-1/14B, Krishna Nagar, Delhi-110051 .........Defendant
Date of Institution : 21.12.2023
Date of Final Arguments : 22.04.2025
Date of Judgment : 22.04.2025
Decision : Dismissed
Judgment
1. This suit is filed by plaintiff for recovery of Rs.47,53,213/- alongwith
interest @18% as unpaid dues of goods sold.
Case of the Plaintiff
2. Case of the plaintiff as per plaint and the documents filed is that he is
proprietor of M/s Roop Chand at Chawri Bazar, Delhi and is in the
business of trading of paper and board on wholesale basis. Defendant who
is doing business in the name of M/s Rajdeep Paper House at Krishna
Nagar, Delhi as a proprietor approached the plaintiff for purchase of
goods. As per orders received goods were sold and supplied. The plaint is
ambiguous in so far as it neither discloses as to when and how the orders
were received and as to when and how the sales were carried out and the
CS Comm No.1628/2023 page 1
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
goods were delivered. The plaint is also silent about the number of
invoices through which the sales were carried out or the cumulative value
of all the sales or for that matter the payments received from the
defendant bill wise or otherwise.
3. All that is pleaded is the ledger maintained by the plaintiff had a debit
balance of Rs.47,53,213/-. It is surprising to note that even no date is
mentioned as to on what date the above debit balance stood in the ledger.
It is pleaded that defendant did not clear the dues. Plaintiff seeks 18% per
annum interest but compliance of Order 7 Rule 2A CPC not carried out
as to on what basis this interest is claimed.
4. As per plaint initially plaintiff filed a claim petition for recovery of this
amount in 2019 before the Arbitration Forum of Paper Merchant
Association of Chawri Bazar which purportedly passed an award
dismissing the plaintiff's claim. The plaint does not even disclose the date
of the said award. The plaint is silent as to why the claim petition was
dismissed by the Arbitral Tribunal i.e. it was dismissed by the Court on
technical ground or was it dismissed on merits. Plaintiff claims to have
filed a Section 34 Arbitration & Conciliation Act petition before Ld. DJ
(Comm.)-03, Central. Likewise, the plaint is silent as to why the arbitral
award was set asided by the Court in Section 34 Arbitration &
Conciliation Act petition preferred by claimant/objector/plaintiff herein.
5. Thereafter, plaintiff claims to have approached Central DLSA for Pre-
Institution Mediation under Section 12A of Commercial Courts Act,
2015 where defendant did not appear and Non-Starter Report dated
06.11.2023 were issued. In this backdrop, the suit in hand has been filed
on by stating that the cause of action to file this suit filed on 21.12.2023
arose on 29.06.2016 when defendant made a last payment on 03.09.2016
CS Comm No.1628/2023 page 2
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
by cheque. Plaintiff claims to be entitled benefit under Section 14
Limitation Act, 1963 qua the time spent before the Arbitral Tribunal.
6. Although the para 13 of the plaint refers that this is a suit under Order 37
CPC but perusal of the first order sheet dated 21.12.2023 shows that
neither Ld. Predecessor took note of this plea nor Ld. Counsel for the
plaintiff pressed for the same. Consequently, the suit was treated as an
ordinary suit. In this backdrop, suit in hand was filed for following reliefs:
Prayer:
i. A decree for recovery of Rs.47,53,213/- along with pendente lite and future
interest @18% p.a. from the date of filing the present dispute till realization of the
amount, in the interest of justice.
ii. Cost of the suit may also be awarded in favour of the plaintiff and against the
defendant;
iii. Pass any other and further order which this Hon'ble Court deem fit and proper, in
the facts and circumstances of the case in favour of the plaintiff and against the
defendants, in the interest of justice.
7. It is observed that even though the suit claim of Rs.47,53,213/- is said to
be debit balance on 29.06.2016 but no pre-suit interest of more than 7
years between 29.06.2016 to 21.12.2023 has been sought.
8. Alongwith the suit plaintiff filed an application under Section 14 of
Indian Limitation Act, 1963 terming that "condonation of period" may
be granted but the application is silent about the period qua which the
benefit is sought. Plaintiff has failed to appreciate the fact that Section 14
talks for exclusion of period and not condonation qua civil proceedings
initiated before another forum despite due diligence.
9. Summons of the suit was issued to the defendant without any reference of
notice of Section 14 Limitation Act, 1963 application. Defendant entered
appearance on 12.03.2024 through Sh. Himanshu Gupta, Advocate and
filed detailed written statement on 14.02.2024.
CS Comm No.1628/2023 page 3
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
Defendant's Case
10.Case of the defendant as per WS and the documents filed is that the suit in
hand is liable to be dismissed as it is barred by limitation since it has been
filed in December 2023 and pertains to invoices raised during the year
2015-2016. It is pleaded that plaintiff is not entitled to any benefit under
Section 14 of Limitation Act, 1963 as the earlier arbitral proceedings
initiated by him neither carried out with due diligence nor in good faith. It
is pleaded that arbitral proceedings were initiated despite the fact that
defendant was not member of Paper Merchant Association.
11.It is pleaded that the plaintiff continued to pursue the arbitral proceedings
despite the objection of the defendant of the jurisdiction of the Tribunal. It
is pleaded that plaintiff has been changing the factual matrix repeatedly
since initial claim petition was filed before the Tribunal based on only two
invoices. However, subsequently additional 13 invoices were filed before
the passing of the award taking the total no. of invoices to 15. But the suit
in hand has been filed on the basis of 28 invoices i.e. another set of 13
invoices have been added which were hitherto not part of the record in the
earlier arbitral proceedings.
12.It is further pleaded that even the ledger filed by the plaintiff before the
Arbitral Tribunal and the one filed before this Court with the suit do not
tally with each other. The invoices filed are said to be fictitious with a
plea that no such goods were delivered to the defendant qua them.
Plaintiff has not placed on record any delivery challan or acknowledgment
qua them or for that matter any bilty or details of the transportation
vehicle. It is pleaded that plaintiff deliberately filed initial arbitral
proceedings at a wrong address with an aim to secure an arbitral award at
the back of the defendant.
CS Comm No.1628/2023 page 4
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
13.Although the WS is silent but evidently the claim petition was initially
filed before the Arbitral Tribunal at "Deepak Bhargava Proprietor M/s
Rajdeep Paper House, 920/2, Ist floor, Chotta Chhippiwara, Chawari
Bazar, Delhi-110006" but as per defendant this address does not belong to
him. Upon being asked, Ld. Counsel for plaintiff could not share any
reason or cite any document as to why defendant was sued at this address
even though all the invoices and the ledger carry the correct address of the
defendant i.e "1664, Kucha Dakhni Rai, Daryaganj, New Delhi". For this
reason neither any notice from the plaintiff or for that matter from the
Arbitral Tribunal reached the defendant. He came to know about the
arbitral proceedings through some common friend on 24.12.2019 and
decided to participate on his own.
14.It is pleaded that plaintiff has miserably failed before the Arbitral Tribunal
to discharge the onus of proving claimed delivery of goods. In this
backdrop, the Arbitral Tribunal dismissed the claim of the plaintiff herein
in November 2021 whereafter plaintiff filed a Section 34 A& C Act
petition in April 2022.
15.In his reply on merits defendant has not denied that plaintiff is a trader of
paper and that both the plaintiff and defendant are traders of the paper and
related goods. Defendant has denied that he placed any order for supply of
goods or that plaintiff ever sold or supplied goods to him. He denies that
he ever placed order of supply of goods worth Rs.45,53,215/- as per
various invoices and statement of account filed by the plaintiff. It is
pleaded that plaintiff has a bad reputation in the market of not making
payments to the creditors and of extorting money by manipulating the
entries and by raising false invoices. It is also pleaded that plaintiff is
indulging in illegal activities. It is denied that plaintiff is entitled to 18%
interest.
CS Comm No.1628/2023 page 5
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
16.It is pleaded that plaintiff is not entitled to any benefit under Section 14 of
Limitation Act, 1963 as plaintiff took recourse to arbitral proceedings
without due diligence or good faith. It is not denied that the Section 34
petition is dismissed by Ld. DJ (Comm.)-03 on 16.08.2023. Issuance of
notice by DLSA for Pre-Institution Mediation is not denied. With these
pleas dismissal of the suit is prayed,
17.Affidavit of admission-denial of defendant to plaintiff's documents is not
as per Order 11 Rule 4 (2) CPC. Also no reasons are cited for denial of
documents as per Order 11 Rule 4(3) CPC. It is interesting to observe
that even though ledger of defendant as maintained by plaintiff starts from
01.04.2015 with credit balance of Rs.21,76,517/- i.e. plaintiff owed this
much money to the defendant, plaintiff has not put forth any explanation
qua the same.
Replication
18.Separate replication was filed by the plaintiff wherein he reiterated the
pleaded case and denied the assertions of the defendant. It is surprising to
observe that even though Plaintiff has filed 13 additional invoices which
were hitherto not filed by him before Ld. Arbitral Tribunal at any point of
time but in his reply to this assertion of the defendant in the WS he denies
filing additional 13 invoices over and above the 15 invoices already filed
even though the 13 additional invoices were actually filed. For this false
statement made by the plaintiff he deserves to be dealt with for perjury
and vide separate noting in the order sheet let a perjury notice under
Section 379 BNSS (Section 340 Cr.PC) be issued against the plaintiff.
19.It is further observed that in reply to para 2 of WS where defendant has
asserted that the printout of the digital ledger filed by the plaintiff in the
suit is different from the one filed by him before the Arbitral Tribunal, in
his replication, duly supported with affidavit, plaintiff has denied this
CS Comm No.1628/2023 page 6
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
claim and denied that there is any difference between the ledger filed by
him in the suit with the ledger filed by him before the Arbitral Tribunal.
Upon close scrutiny this Court finds that the ledger filed by the plaintiff in
the suit is a three page document which starts from 01.04.2015 with
opening credit balance of Rs.21,76,517/- and ends on 03.09.2016 with
sale entry of Rs.1,06,365/- dated 29.06.2016. It is surprising to observe
that the first page of ledger Ex.PW1/30 is incomplete in so far as one
entire column by the title "balance" is missing therein even though the
same is visible in the two ledgers filed at different points of time before
Ld. Arbitral Tribunal. There is difference in the captioned period of the
ledgers filed before this Court and before Arbitral Tribunal as the ledger
filed in the Court starts on 01.04.2015 with credit balance of
Rs.21,76,517/- but the one filed before Ld. Arbitral tribunal starts from
01.04.2014 with zero balance. The correctness of this digital document
despite the same being incorrect and incomplete has been vouched by the
plaintiff not only by a Section 65B certificate issued under Indian
Evidence Act, 1872 but also during the course of recording of his
evidence on oath as PW1. The law in this regard is well-settled.
20.Although in Commercial Courts the correctness of a digital document has
to be proved by way of affidavit under Order 11 Rule 6 CPC which
admittedly plaintiff did not file but the fact that he deposed on his
affidavit of statement of truth as well as statement on oath that the digital
printout is true reflection of the digital ledger maintained by him shows
that another instance of perjury has been committed for which plaintiff
be served notice under Section 379 BNSS (Section 340 Cr.PC). Reply
be filed within two weeks of receipt of notice.
21. Out of the pleadings following issues were identified by Ld. Predecessor
on 27.03.2024:
CS Comm No.1628/2023 page 7
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
Issues:
1. Whether the plaintiff is entitled to exclusion of the period from 12.04.2019
to 16.08.2023 under Section 14 of 'The Limitation Act' during which he was
prosecuting arbitral proceedings under 'The Arbitration & Conciliation Act'?
OPP
2. Whether the plaintiff delivered the goods to the defendant w.e.f 01.04.2015
to 31.03.2016? OPP
3. Whether the invoices, relied by the plaintiff are fictitious?OPD
4. Whether the plaintiff is entitled to a decree for recovery of Rs. 47,53,213/-?
OPP
5. Whether the plaintiff is entitled to interest, if so, at what rate and for which
period?OPP
6. Relief.
Evidence
22. Defence Evidence in this case was ordered to be recorded before Sh.
Tanmay Garg, Ld. LC as per protocol created by this Court under Order
18 Rule 4 CPC read with Order 15A Rule 6(l) and (o) CPC as
applicable to Commercial suits for the sake of timely disposal of this case.
Plaintiff's Evidence
23. To prove its case plaintiff company examined PW1 Amir Chand. Vide
affidavit Ex.PW1/A he deposed on the lines of plaint and exhibited
following documents:
Sl. No. Documents Exhibits
1. Copy of GST Certificate. Mark A
2. Copy of Bills. Ex.PW1/2 to Ex.PW1/29
3. Ledger Account. Ex.PW1/30 (Colly.)
4. Certified copy of Order dated 16.08.2023. Ex.PW1/31 (Colly.)
5. Certificate under Section 65B of 'The Indian Ex.PW1/32
Evidence Act, 1872'.
24.He was cross-examined by Ld. Counsel for defendant Mr. Himanshu
Gupta at length wherein he stated that he is known to defendant since
1995 and they have friendly relations. PW1 is in the paper business since
1969 at Chawri Bazar, Delhi but he closed his business in 2018. He had
CS Comm No.1628/2023 page 8
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
his godown at Gazipur, Delhi. He accepted that initially he filed a claim
petition before Paper Merchant Association due to financial constraints as
per legal advice of his lawyer. He stated that a legal notice Ex.PW1/D1
dated 13.12.2018 was sent by him but surprisingly the suit in hand is
silent about it. He accepted that document Ex.PW1/D2 is his claim
petition filed before Arbitral Tribunal. He accepted that initially he filed
the claim petition with only two invoices and ledger restricted to period
01.04.2016 to 31.03.2017. He accepted that thereafter he placed 13
invoices Ex.PW1/13 to Ex.PW1/27 on record and filed another ledger
now for the period 01.04.2014 to 17.08.2015. He stated that goods were
supplied to the defendant through defendant's tempo. Goods were lifted
either from Chawri Bazar or from plaintiff's Gazipur godown. He
accepted that no distributor's challan has been filed by him on record
which is per se used for picking up of consignment directly from the
wholesale vendor. He also accepted that none of the 28 invoices filed by
him on record Ex.PW1/2 to Ex.PW1/29 carries any mention of any
transport vehicle. He also accepted that no Form D VAT 33 or any other
delivery challan qua the claimed sale was prepared or issued by him.
25.He accepted that he has not placed any purchase order of defendant on
record as according to him all orders were placed verbally. He accepted
that no delivery challan as was prepared. He denied the suggestion that
neither defendant placed any order nor any goods were delivered by the
plaintiff to him. He also denied the suggestion that it is the duty of the
seller to deliver the goods to the purchaser and issue delivery challan in
this regard. As regards the transaction in the ledger where plaintiff has
made payments to the defendant he claimed that they were loan
transactions or were financial helps to the defendant. He denied the
suggestion that he has failed to show any proof of delivery of goods qua
CS Comm No.1628/2023 page 9
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
28 invoices Ex.PW1/2 to Ex.PW1/29. He denied the suggestion that he
deliberately chose wrong forum i.e. Arbitral Tribunal of Paper Merchant
Association. He also denied that he was not diligent or that is not entitiled
to benefit under Section 14 of Limitation Act.
26.Second witness examined by the plaintiff is PW2 Sehdev Arya from
Department of Trade and Taxes Government of Delhi. He exhibited his
authority letter Ex.PW2/1 apart from Form 2A and 2B report alongwith
Section 65 certificate Ex.PW2/2. This witness was not cross-examined
by the defendant.
27.On the other hand defendant examined himself DW1 Deepak Bhargava.
Vide his affidavit Ex.DW1/A he deposed on the lines of WS and exhibited
following documents:-
i. Copy of the claim petition filed before the Paper Merchant's Association by the plaintiff
already exhibited as Ex.PW-1/D2 (Colly.)
ii. Copies of the orders of the Arbitral Tribunal dated 20.02.2020, 05.03.2020 and 12.03.2020 are
Ex.DW-1/2 (colly.) from page no. 43 to 45;
iii. Copies of the 13 invoices and statement of accounts pertaining to year 2015-16 as obtained
from the Paper Merchant's Association are Ex.DW-1/3 (colly.) from page no. 46 to 60;
iv. Copy of the application filed by the plaintiff seeking enquiry and disposal of his claim is
Ex.DW-1/4 from page no. 61 to 62;
v. Copy of the vakalatnama of Plaintiff's counsel is Ex.DW1/5 page no. 63;
vi. The copy of the Arbitral Award is Ex.DW-1/6 from page no. 64 to 72;
vii. The copy of the petition under Section 34 of Arbitration and Conciliation Act, filed by the
plaintiff is Ex.DW-1/7 from page no. 73 to 100.
28.In his cross-examination done by Sh. Himanshu Verma, Advocate for
plaintiff he stated that although he is graduate but he does not understand
English. He is in paper business for last 14 years in Daryaganj. He
accepted that he has business relations with plaintiff from 1981 to 1990.
As per him as and when sale-purchase happens between traders, due
acknowledgement of every sale, purchase or delivery is taken. He
accepted that he has not placed any ledger of his on record. He denied that
he had monetary transactions with the plaintiff but added that there were
friendly loans exchanged between them. He denied any liability to pay to
the plaintiff.
CS Comm No.1628/2023 page 10
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
29. I have heard arguments of Sh. Himanshu Verma, Ld. Counsel for
plaintiff and Sh. Himanshu Gupta, Ld. Counsel for defendant and
have perused the case file as well as arbitral record which is also available
on record apart from order of Ld. DJ CC-03 Central District which
allowed Section 34 Arbitration & Conciliation Act 1996 petition of the
plaintiff.
30. Now I shall dispose of individual issues framed in this case.
Issue No. 1:
1. Whether the plaintiff is entitled to exclusion of the period from 12.04.2019
to 16.08.2023 under Section 14 of 'The Limitation Act' during which he was
prosecuting arbitral proceedings under 'The Arbitration & Conciliation Act'?
OPP
31.At the onset it would be appropriate to have a glance at Section 14 of
Limitation Act, 1963. For ready reference the same is reproduced
hereunder:
Section 14 of Limitation Act, 1963: Exclusion of time of proceeding
bona fide in Court without jurisdiction
(1) In computing the period of limitation for any suit the time during which the plaintiff
has been prosecuting with due diligence another civil proceeding, whether in a court
of first instance or of the appeal or revision, against the defendant shall be excluded,
where the proceeding relates to the same matter in issue and is prosecuted in good
faith in a court which, from defect of jurisdiction or other cause of a like nature, is
unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the
applicant has been prosecuting with due diligence another civil proceeding, whether in
a court of first instance or of appeal or revision, against the same party for the same
relief shall be excluded, where such proceeding is prosecuted in good faith in a count
of first instance or of appeal or revision, against the same party for the same relief
shall be excluded, where such proceeding is prosecuted in good faith in a court which,
from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil
Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to
a fresh suit instituted on permission granted by the court under rule of that Order,
where such permission is granted on the ground that the first suit must fail by reason of
a defect in the jurisdiction of the court of other cause of a like nature.
Explanation - For the purpose of this section, -
(a) In excluding the time during which a former civil proceeding was pending, the day
CS Comm No.1628/2023 page 11
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
on which that proceeding was instituted and the day on which it ended shall both be
counted;
(b) Plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a
proceeding;
(c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a
like nature with defect of jurisdiction.
32.While opening his submissions Ld. Counsel for plaintiff submits that
when the cause of action arose he approached his counsel who upon
perusing the invoices, which carried a mandatory arbitration clause with
Paper Merchant Association, Chawri Bazar advised the plaintiff to go for
adjudication of the dispute by way of arbitration. Consequently, plaintiff
issued a notice followed by filing of a claim petition before the above
association.
33.Perusal of the plaint shows that not a single document qua the
proceedings before the Arbitral Tribunal has been filed by the plaintiff on
record. Not only the copy of the statement of claim alongwith annexures
has not been filed but even the copy of dismissal award which is undated
and was purportedly passed in November 2021 by Sh. Anil Jain, Ld. Sole
Arbitrator passed by Ld. Tribunal was not filed. Copy of this award was
placed on record by the defendant alongwith the WS. Plain reading of this
award shows that the same was dismissed by the Tribunal on merits on
account of plaintiff/claimant's failure to prove sale and delivery of the
goods so as to fasten the defendant with a liability of Rs.47,53,213/-. The
relevant portion showing the findings given by Ld. Tribunal on merits are
reproduced hereunder for ready reference:
"On 12.03.2020, this Forum, found the absence of any proof of delivery of goods in the
entire set of documents filed and relied upon by the Claimant. Further, there was no
document showing the acknowledgement of receipt of goods by the Respondent against
which the claim was sought by the Claimant. The prevailing practice in the market is to
give acknowledgement of receipt of goods accompanied by the seal of the buyer. None of
the bills, placed on record by Claimant, contains any such acknowledgement of receipt
and seal. Even no document was produced by Claimant portraying the acknowledgement
of statement of account by the Respondent, when the Respondent challenged the delivery
of goods to him against the allegation of the Claimant. All this happened even when the
CS Comm No.1628/2023 page 12
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
Claimant was put to guard through this Forum’s letter/notice dated 05.03.2020 after
hearing the defense of the respondent. Consequently on 12.03.2020 in the absence of
these documents of vital decisive importance and on the basis of mere two bills annexed
with the statement of claim being bereft of proof of receiving the goods by the
Respondent, the claim of the Claimant was dismissed………
It may be mentioned here that the Claimant sought to assert his claim, even after
becoming of ‘functus officio’ of this Forum, by filing a misconceived application on
10.03.2021 for the disposal of the Claim petition and belatedly placed on record thirteen
bills without any acknowledgement of receipt of goods and without seal of the
Respondent on these. Even the statement of account placed on record at a belated stage
cannot be relied upon without explaining its power and possession at the time of filing of
the present claim petition and the reason for not filing it at the appropriate stage. Further
no credence can be placed on it (electronic evidence) as the same is not supported by
requisite certificate. Submissions of the Claimant was that after reconciling the receipt
with the ledger entries, dues against outstanding bills were found Rs.47,53,213/- (Rupees
forty seven lakhs fifty three thousand two hundred and thirteen only). However, the
Claimant has miserably failed to show and prove the delivery of goods through a
credible, cogent and persuasive evidence and the transactions made by him with
Respondent during the period Aug. 2015 till 31.03.2016……..
Summing up the findings on all the issues raised in the claim petition as well as during
arguments, Claimant is not entitled to the recovery of an amount of Rs.47,53,213/- along
with interest @24% per annum. Claimant is also not entitled to the recovery of costs of
Arbitration. The claim of the Claimant is hereby dismissed. No order as to costs.
34.The tendency of the plaintiff herein to conceal documents from the Court
continues and despite moving the application under Section 14 of
Limitation Act the copy of the Section 34 A & C Act objection petition
was not placed on record. The Court was constrained to summon the
Section 34 A & C Act petition file i.e. OMP Comm. 44/2022. Perusal of
the objection petition filed by the plaintiff herein against the arbitral
award whereby his claim petition was dismissed on merits it is found that
the plaintiff herein challenged the award inter alia under following
grounds:
i. That the Award is against public policy and law of arbitration
ii. That the Award is against the terms of contract, justice and morality
iii. That the Award is passed without application of mind on the facts
of the claimant
iv. That the Arbitrator erred in deciding the claimant’s objection to the
jurisdiction of the Tribunal (this is a fraudulent ground since noCS Comm No.1628/2023 page 13
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
objection was taken by the plaintiff/claimant and rather he invoked
the jurisdiction)
v. That the Arbitral Tribunal was not appointed in fair and legal
manner (this is a fraudulent ground since it is the plaintiff/claimant
who got the Tribunal appointed)
vi. That the Arbitral Tribunal did not consider the documents including
invoices and ledger filed by the claimant.
35.While perusing the order passed by Ld. DJ CC-03 Central dated
16.08.2023 it is found that in para 16 following observation is made as
under:
“Moreover, once the arbitrator had come to a conclusion that he had no
jurisdiction to proceed with the matter for want of binding arbitration clause on the
documents placed on record by the petitioner, the arbitrator ought to have framed a
specific issue in this regard and upon coming to conclusion that there was no valid
arbitration clause and consequently he, the arbitrator, lacked jurisdiction to
adjudicate the matter, he ought not to have proceeded to adjudicate upon the claim
of the petitioner but should have exercised option of returning the claim petition for
filing before appropriate forum/court having jurisdiction to proceed with the matter.
The arbitrator not only proceeded to decide the claim of petitioner on merits.
36.Despite carefully going through the entire arbitral record and claim
petition, proceeding sheets and the annexures and having made repeated
queries from Ld. Counsel for plaintiff, he has failed to show or indicate
anything that the Arbitrator ever concluded that he has no jurisdcition to
proceed with the arbitration for want of any binding contract between the
parties. Ld. Counsel for plaintiff concedes that he is not aware as to how
and on what basis Ld. DJ CC-03 reached this conclusion.
37.Likewise, there is another relevant portion in the Section 34 petition
order where Ld. DJ CC refers to para on internal page 5 of the award as
under:
“On one hand the arbitrator held that it had become “functus officio” in respect of
disputes laid before it after it had dismissed the claim of the claimant yet on the
other the arbitrator proceeded to give findings in respect of additional documents
filed by the petitioner. Such detailed discussion of additional documents, filed
belatedly by the petitioner, was not called for when in the first instance the
arbitrator had opined that it had no jurisdiction to adjudicate upon the initialCS Comm No.1628/2023 page 14
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
claim of the petitioner. At this stage, the arbitrator also observed that he lacked
jurisdiction as the respondent was not a member of Paper Merchant Association.
This also is a clear indicator that the arbitrator should have refrained from
adjudicating upon the claim without deciding the issue of his jurisdiction to
proceed with the arbitration proceedings.”
38.Plain reading of the entire award with the above reference clearly shows
that all that the Ld. Arbitrator was trying to conclude was that initially the
suit claim of Rs.47,53,213/- was based only on two invoices and ledger
for the FY 2016-17. No other document was filed or relied. Having gone
through these documents the Arbitral Tribunal made an observation in its
proceeding sheet dated 12.03.2020 that plaintiff has failed to show
delivery of claimed goods by way of acknowledgement by the defendant
or by way of any other proof like bilty etc. It is only after this observation
that plaintiff/claimant tried to undo the damage by seeking to place on
record 13 additional invoices and a revised ledger which pertains to April
2014 to 17.08.2015.
39.This endeavour of the plaitniff was referred to by the Ld. Tribunal as a
belated attempt to salvage the case. The usage of words “functus officio”
appears to be a vestigial observation made under an apparent
misconception since there is nothing on record to show that any award
was passed by the Tribunal on 12.03.2020. Even the subsequently filed
documents were duly considered and a finding has been arrived at on
merits to the effect that even these additional documents do not prove
actual delivery of any goods. In this backdrop, this Court has its
reservations about the finding given by the Court stating that the Arbitral
Tribunal could not have passed the award of November 2021 as he had
become functus officio.
40.This Court is constrained to make these observations solely for the
purpose of arriving at a decision as to whether plaintiff is entitled to
benefit of Section 14 of Limitation Act, 1963 or not. As per settled legal
proposition it is the duty and domain of the Successor Court to check
CS Comm No.1628/2023 page 15
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
whether the suit is filed within limitation as per Section 3 r/w Schedule
attached to Limitation Act, 1963.
41. Law in this regard is well settled. In case titled Mahindra Land and
Building Corporation Ltd. Vs. Bhootnath Banerjee, 1963 Latest
Caselaw 153 SC, Apex Court held that as under:
Section 3 is preemptory and it is the duty of the court not to proceed with the suit,
appeal or application if it is made beyond the prescribed period of limitation
irrespective of the fact whether the plea of limitation has been set up in defense or
not. It was further held that the court has no choice in this respect. In catena of
judgments it has been held that Section 3 of the Limitation Act is mandatory and
has to be obeyed in full and if any of the provisions contained in Sections 4 to 24 of
the Act are inapplicable the mandatory provision of Section 3 is attracted with the
result that the court is bound to dismiss a suit or petition which on the face of it
appears to be barred by time.
42. In case titled M.P. Steel Corporation v. Commissioner of Central
Excise (supra), (2015) 7 SCC 58 Hon’ble Supreme Court held as under:
“A mere averment that a party was pursuing its remedy before another forum is
sufficient to attract provisions of Section 14 of the Limitation Act, is unmerited.”
43.Ld. Counsel for defendant has relied on case titled Consolidated
Engineering Enterprises Vs. Irrigation Department and Ors., 2008
Latest Caselaw 322 SC to highlight the conditions which calls for grant
of benefit under Section 14 of Limitation Act. The relevant text is
reproduced as under:
“30.The principles pertaining to applicability of Section 14, were extensively discussed
and summarised by this Court in Consolidated Engg. Enterprises (supra), wherein
while holding the exclusion of time period under Section 14 of the Limitation Act to a
petition under Section 34 of the Arbitration Act it was observed:-
“21. Section 14 of the Limitation Act deals with exclusion of time of proceeding
bona fide in a Court without jurisdiction. On analysis of the said section, it
becomes evident that the following conditions must be satisfied before Section 14
can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted
by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good
faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other
cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same
matter in issue; and
(5) Both the proceedings are in a court.”
44.Applying the above statutory provisions and salutory judgments on the
facts of this case so as to ascertain whether plaintiff is entitled to benefit
CS Comm No.1628/2023 page 16
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
under Section 14 of Limitation Act or not this Court is constrained to
come to a conclusion that there is nothing on record to show that plaintiff
is entitled to benefit under this provision. Plaintiff rightfully approached
the Arbitral Tribunal on the basis of his membership of Paper Merchant
Association Regd. Delhi. On his request the said association did appoint
Sh. Anil Jain as Sole Arbitrator. Notice of statement of claim was issued
to the respondent albeit at an address which did not belong to the
defendant. Somehow defendant came to know about the pendency of the
Arbitral proceedings and participated in the same. Defendant’s objection
to the jurisdiction of the Tribunal was opposed by the plaintiff/claimant
and objection was overruled by the Tribunal. The Tribunal proceeded with
the claim and dismissed the same on merits citing plaintiff’s failure to
lead any evidence which could fasten the defendant with any financial
liability of Rs.47,53,213/-.
45.In this backdrop, having lost the claim petition on merits, as detailed
supra, plaintiff filed a wholly mischievous Section 34 A& C Act petition
thereby questioning his own actions in invoking the arbitration as a mode
of adjudication of dispute and challenging the legality of the Tribunal. In
this backdrop, plaintiff is estopped from questioning his own acts. The
observations made by Ld. DJ CC while deciding Section 34 A & C Act
petition, as discussed supra, do not salvage the plaintiff’s case or make
him entitled to seek benefit under Section 14 Limitation Act, 1963 from
this Court. The invoices filed and relied are of the year 2015 and 2016
which the suit in hand has been filed in 2023 i.e. on 21.12.2023. Even if
benefit of freeze of Limitation given by Hon’ble Supreme Court is
granted which is from 15.03.2020 to 28.02.2022 the suit in hand is
hopelessly barred by limitation. As such this issue is answered against
the plaintiff and in favour of defendant.
CS Comm No.1628/2023 page 17
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
46.Although fate of the plaintiff’s case stands sealed by the above finding
that the suit is barred by limitation but as per Order 14 Rule 2 CPC this
Court is duty bound to give findings on all the issues. For ready reference
the same is reproduced hereunder:
Order 14 Rule 2 CPC: Court to pronounce judgment on all issues:
(1) “Notwithstanding that a case may be disposed of on a preliminary issue, the
Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all
issues
(2) Where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law only,
it may try that issue first if that issue relates to–
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues
until after that issue has been determined, and may deal with the suit in accordance
with the decision on that issue.
Issue no. 2, 3 and 4:
2. Whether the plaintiff delivered the goods to the defendant w.e.f 01.04.2015
to 31.03.2016? OPP
3. Whether the invoices, relied by the plaintiff are fictitious?OPD
4. Whether the plaintiff is entitled to a decree for recovery of Rs. 47,53,213/-?
OPP
47.Before embarking to decide the other issues on merits it would be handy
to cull out the facts admitted by both the sides. It is admitted that both the
plaintiff and defendants are traders of paper and have been doing business
for the last around more than a decade. Although both of them had been
carrying out sale and purchase amongst themselves but the captioned
period relied by the plaintiff constitutes purported sales by the plaintiff to
the defendant. All the sales used to be made by duly issued invoices
including applicable Value Added Tax. Ledger was being maintained of
the business carried out between the parties.
48.While according to plaintiff on the basis of 28 invoices and the ledger
there was a debit balance of Rs.47,53,213/- but according to defendant
nothing is due or payable because no material under the claimed 28
CS Comm No.1628/2023 page 18
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
invoices was ever ordered, sold or supplied by the plaintiff to the
defendant. Admittedly, no document or email or a whatsapp
communication has been cited or relied by the plaintiff to show that
defendant placed orders qua the goods referred to in 28 invoices.
49.As regards the sale and delivery the law in this regard is governed under
Sale of Goods Act, 1930 and Carriage by Road Act, 2007 and Carriage
by Road Rules, 2011. The relevant statute which governs sale of movable
articles is Section 23 (2), Section 31, Section 33 and Section 39 of Sale
of Goods Act, 1930. As far as duty of the seller is concerned, under Sale
of Goods Act (SoGA), 1930 Section 31 of the Act places entire duty on
the seller to ensure that the goods sold are delivered to the buyer. For
ready reference the same is reproduced hereunder:
Section 31: Duties of Seller and Buyer
“It is the duty of the seller to deliver the goods and of the buyer to accept and pay for
them, in accordance with the terms of the contract of sale.”
50.The term delivery also stands defined under the Statute under Section 33
of Sale of Goods Act, 1930 . The same is reproduced hereunder:
Section 33: Delivery
“Delivery of goods sold may be made by doing anything which the parties agree
shall be treated as delivery or which has the effect of putting the goods in the
possession of the buyer or of any person authorised to hold them on his behalf.”
51.Likewise, standalone invoices do not prove delivery of the goods as
mandated under Section 31, 33 and 39 of Sale of Goods Act unless there
is a physical endorsement of delivery over them or there is a separate
document so as to show that the goods were actually delivered to
defendant or at least delivered to a goods carrier as provided under
Section 23 (2) and Section 39 of Sale of Goods Act. For ready reference
the same are reproduced hereunder:
Section 23 (2) :Delivery to carrier.–
CS Comm No.1628/2023 page 19
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
“(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer
or to a carrier or other bailee (whether named by the buyer or not) for the purpose
of transmission to the buyer, and does not reserve the right of disposal, he is deemed
to have unconditionally appropriated the goods to the contract.”
Section 39: Delivery to carrier of wharfinger:
“(1) Where, in pursuance of a contract of sale, the seller is authorised or required to
send the goods to the buyer, delivery of the goods to a carrier, whether named by
the buyer or not, for the purpose of transmission to the buyer, or delivery of the
goods to a wharfinger for safe custody, is prima facie, deemed to be a delivery of
the goods to the buyer.
(2) Unless otherwise authorised by the buyer, the seller shall make such contract
with the carrier or wharfinger on behalf of the buyer as may be reasonable having
regard to the nature of the goods and the other circumstances of the case. If the
seller omits so to do, and the goods are lost or damaged in course of transit or
whilst in the custody of the wharfinger, the buyer may decline to treat the delivery
to the carrier or wharfinger, as a delivery to himself, or may hold the seller
responsible in damages.
(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a
route involving sea transit, in circumstances in which it is usual to insure, the seller
shall give such notice to the buyer as may enable him to insure them during their
sea transit and if the seller fails so to do, the goods shall be deemed to be at his risk
during such sea transit.”
52.To prove delivery by a carrier, copy of Rule 7 and 8 of Carriage by
Road Rules should have been placed on record which is popularly known
as ‘Bilty’. Ld. Counsel for plaintiff has accepted that apart from filing e-
way bills issued under CGST Rules, 2017 which statutorily and as per
settled law does not prove actual delivery of the goods, neither Form 7 as
per Carriage by Road Rules, 2011 whereunder a seller hands over the
consignment/material/goods to the carrier under endorsement or Form 8
i.e. popularly known as ‘Bilty’ whereunder the carrier issues a receipt in
favour of the seller thereby acknowledging the receipt of goods.
53.Every transport company or a carrier of goods carries out business under
Carriage by Road Act, 2007 whereunder every movable article as and
when booked for transportation shall be done as per documentation
provided under the statute. The term common carrier is defined in Section
2 (a) of this Act.
Section 2 of Carriage by Road Act. 2007 : Definitions.-
In this Act, unless the context otherwise requires,–
CS Comm No.1628/2023 page 20
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
i. “common carrier” means a person engaged in the business of collecting, storing, forwarding
or distributing goods to be carried by goods carriages under a goods receipt or transporting
for hire of goods from place to place by motorised transport on road, for all persons
undiscriminatingly and includes a goods booking company, contractor, agent, broker and
courier agency engaged in the doorto-door transportation of documents, goods or articles
utilising the services of a person, either directly or indirectly, to carry or accompany such
documents, goods or articles, but does not include the Government;
ii. “consignee” means the person named as consignee in the goods forwarding note;
iii. “consignment” means documents, goods or articles entrusted by the consignor to the
common carrier for carriage, the description or details of which are given in the goods
forwarding note;
iv. “consignor” means a person, named as consignor in the goods forwarding note, by whom or
on whose behalf the documents, goods or articles covered by such forwarding note are
entrusted to the common carrier for carriage thereof;
v. “goods” includes–
i. Containers, pallets or similar articles of transport used to consolidate goods; and
ii. animals or livestock;
vi. “goods forwarding note” means the document executed under section 8;
vii. “goods receipt” means the receipt issued under section 9;
viii. “person” includes any association or body of persons, whether incorporated or not, a road
transport booking company, contractor and an agent or a broker carrying on the business of a
common carrier;
ix. “prescribed” means prescribed by rules made under this Act;
x. “registering authority” means a State Transport Authority or a Regional Transport Authority
constituted under section 68 of the Motor Vehicles Act, 1988 (59 of 1988);
xi. “registration” means the registration granted or renewed under sub-section (5) of section
54. Section 2 of this Act also defines the specific terms like Consignee in
Section 2(b), Consignment in Section 2 (c) and Consignor in Section 2
(d). Even the terms “Goods Receipt” issued under Section 9 of this Act also
stands defined under Section 2 (g).
Section 9 of Carriage by Road Act, 2007 : Goods Receipt
1. A Common Carrier shall,-
i. in case where the goods are to be loaded by the consignor, on the completion of such
loading; or
ii. in any other case, on the acceptance of the goods by him, issue a goods receipts in
such form and manner as may be prescribed.
2. The goods receipt shall be issued in triplicate and the original shall be given to the
consignor.
3. The goods receipt shall be prime facie evidence of the weight or measure and other
particulars of the goods and the number of packages stated therein.
4. The goods receipt shall include an undertaking by the common carrier about the liability
under Section 10 or Section 11.
55. For ready reference Rule 10 of Carriage by Road Rules, 2011 is
reproduced hereunder:
Rule 10 : Goods forwarding note and goods receipt
CS Comm No.1628/2023 page 21
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
i. “Every consignor while booking his goods shall execute a goods forwarding note as
specified under sub-section (1) of section 8, containing details of the goods in Form 7
and submit it to the common carrier in duplicate.
ii. For the goods of dangerous or hazardous nature, the goods forwarding note shall be
issued on a paper with upper left hand corners printed in red as “expand goods.”
iii. An acknowledged copy of the good forwarding note shall be returned by the common
carrier to the consignor.
iv. Every common carrier on receipt of the goods forwarding note from the consignor for
booking of goods to be transported, shall issue a goods receipt in Form 8.
v. For the goods of dangerous or hazardous nature, the goods receipt shall be issued on a
paper with upper left hand corners printed in red as “Dangerous and Hazardous
goods.”
56. Form 7 and 8 of Rules, 2011 are pictorially represented as under:
CS Comm No.1628/2023 page 22
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
57.In this backdrop the onus of proving the delivery of the goods worth Rs.
Rs.47,53,213/- is on the plaintiff and under the law plaintiff could have
proved delivery by any of the following methods:-
i. Admission by defendant/defendant acknowledges the delivery
ii. Endorsement of receipt by the defendant on the 28 invoices.
iii. Filing and proving Form 7 or Form 8 (Bilty) under Carriage by
Road Rules, 2011 to show that plaintiff delivered the goods to
the carrier and is entitled to benefit under Section 39 of Sale of
Goods Act, 1930.
iv. By proving on record that the GST claimed to have been
deposited by the plaintiff qua these 28 invoices, defendant took
CS Comm No.1628/2023 page 23
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
input tax credit under Section 2 (63) of CGST Act, 2017 and
plaintiff is entitled to presumption under Section 16 (2) of
CGST Act, 2017.
58.Coming back to the case in hand a bare look at the above 28 invoices
shows that there is neither endorsement of receipt nor acknowledgement
qua delivery from the defendant. Admittedly, no goods receipt/bilty as per
Form 7 and Form 8 of Carriage by Road Rules, 2011 promulgated
under Carriage by Road Act, 2007 have been filed or proved on record.
Whether it is a transaction of sale or a transaction of doing a jobwork,
upon promulgation of Goods and Services Tax, 2017 the same can be
carried out only by way of a GST paid invoice as per Section 31 of
CGST Act, 2017 r/w Rule 46 of CGST Rules, 2017. However, since the
transaction in question is of 2016 the transaction was covered under Delhi
Value Added Tax, 2004 where similar provisions existed.
59.As discussed supra in order to seek a decree on the basis of sale and
delivery of the goods, each and every single invoice has to undergo
scrutiny under the above applicable laws. The plaintiff company has not
been able to discharge the onus placed on it under Sale of Goods Act,
1930. Plaintiff has failed to discharge onus of proving the delivery of
goods out of the 28 invoices. Accordingly, this issue is answered against
the plaintiff and in favour of the defendant.
Issue no. 5
5. Whether the plaintiff is entitled to interest, if so, at what rate and for
which period?OPP
60.In view of the decision of above issues, no relief qua interest is made out.
Relief
61.In the light of the above, I do not find any merits in the same. This Court
has no hesitation in concluding that plaintiff has miserably failed to
CS Comm No.1628/2023 page 24
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.
discharge the onus of proving this case and suit of the plaintiff is
accordingly dismissed with cost. Defendant’s lawyer’s fees is assessed
as Rs.75,000/-.
62.Decree Sheet be prepared accordingly. File be consigned to Record Room
after due compliance. Digitally
signed by
SURINDER
SURINDER S RATHI
S RATHI Date:
2025.05.05
15:09:33
+0530(SURINDER S. RATHI)
District Judge,
Commercial Court -11
Central District, THC
Delhi/22.04.2025CS Comm No.1628/2023 page 25
Amir Chand Jain Vs. M/s Rajdeep Paper House and Anr.