MAYUR GOVIND NASA PROPRIETOR OF DEVANSH CHEMICAL,MUMBAIversusNITESH TRADERS PROPRIETOR MRS. NUTAN ANDHARE

                                                                                              COMFA_5_2024.DOC



                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION

                                        COMMERCIAL FIRST APPEAL NO.5 OF 2024

PRASAD
                      Mayur Govind Nasa
RAJENDRASING
RAJPUT                Proprietor of Devansh Chemical, Mumbai                ...Appellant / Orig.Plaintiff
Digitally signed by
                             Versus
PRASAD
RAJENDRASING
RAJPUT                Nitesh Traders
Date: 2026.08.19
12:01:17 +0530
                      Proprietor Mrs. Nutan Andhare                         ...Respondent / Orig.Defendant

                                                                _______

                      Mr. Jeetendra Ranawat a/w Gaurav Gupta, for Appellant.
                      None for the Respondent.
                                                                _______

                                                     CORAM:         G. S. KULKARNI &
                                                                    DR. NEELA GOKHALE, JJ.

                                              RESERVED ON:                  13th AUGUST 2026
                                              PRONOUNCED ON:                19th AUGUST 2026

                      JUDGMENT (Per Dr. Neela Gokhale, J.)

                      1.       Admit.     Although the Respondent is served, it is not represented.

                      Accordingly, we have proceeded to hear the learned counsel for the Appellant and

                      adjudicate the present Appeal.


                      2.       The Appellant (Original Plaintiff) assails the judgment and order dated 25 th

                      October 2023 passed by the District Judge, City Civil & Sessions Court, Greater

                      Mumbai, in Commercial Suit No. 101085 of 2021. The suit instituted by the

                      Appellant was dismissed on the finding that the Appellant failed to prove the

                      supply, transportation and delivery of goods to the Respondent (Original

                      Defendant) against whom the recovery of money was claimed.


                      3.       The facts of the case, in brief, are as follows:


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3.1      The Appellant is stated to be the proprietor of Devansh Chemical, Mumbai,

engaged in the business of supplying Sulfur and Coal, and the Respondent is stated

to be engaged in the business of trading goods.

3.2      It is the case of the Appellant that he and the Respondent were in business

relations for the past 15 years. Accordingly, orders used to be placed by the

Respondent with the Appellant by telephone or through a duly authorised person

of the Respondent. During the period from 05.02.2016 to 23.12.2017, the

Appellant supplied goods to the Respondent. In respect of the said supply, invoices

were raised. It is the case of the Appellant that, despite the supply of goods to the

Respondent against invoices raised and delivered to the Respondent, the

Respondent failed to settle the bills. The Appellant also claims to have paid GST

and VAT on the invoices raised. According to the Appellant, the Respondent has

also claimed benefits of VAT and GST as input tax credit in the returns filed by the

Respondent with the Sales Tax Authorities of the State Government.

3.3      Despite delivery of the goods, the Respondent failed to make payment, and

hence the Appellant instituted a Commercial Suit before the City Civil & Sessions

Court, Greater Mumbai, bearing Commercial Suit No. 101085 of 2021. The

Respondent appeared and filed a written statement (Exhibit 3) on 16.11.2021.

After hearing the evidence of the Appellant and the Respondent, the Trial Court

dismissed the suit. It is this decision of the Trial Court that is assailed in the present

Appeal.

4.       Heard Mr. Ranawat, learned Counsel for the Appellant. Despite notice

being served on Respondent and on Mr. Abhijit Dilip Kulkarni, who had filed a



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vakalatnama with Respondent, none appeared before the Court on Respondent's

behalf to advance submissions. Hence, we proceeded to hear Mr. Ranawat, learned

Counsel for the Appellant.

SUBMISSIONS OF MR. RANAWAT ON BEHALF OF THE APPELLANT:

4.1      It is submitted by Mr. Ranawat that the learned trial Judge has erred in

concluding that each bill as raised constituted an independent transaction without

recognising that the common ledger was maintained in the Appellant’s books of

accounts and hence, the case was of a running account being maintained in respect

of the transactions. It is submitted that the learned trial Judge ought to have taken

into account that the ledger accounts which were produced by the Appellant record

the receipt of Rs.1,00,000/- from the Respondent on 22 March, 2017, which is

contrary to the fact    that there was no supply of goods to the Respondent.

According to Mr. Ranawat, if there was no supply of goods, there was no question

of the Respondent releasing the sum of Rs.1,00,000/- to the Appellant. It is also

Mr. Ranawat’s submission that the trial Court has failed to appreciate that the

orders were placed only by telephone, as the goods were also picked up by the

Respondent and hence there was no burden on the Appellant to prove the same.

Mr. Ranawat has also questioned the finding of the learned trial Judge when the

impugned order records that there were no delivery challans for the delivery of the

goods and what was necessary to appreciate that the goods were taken by the

Respondent and therefore, the respondent was in possession of the delivery

challans. It is also his submission that the learned trial Judge could not have

concluded that the Appellant has failed to provide details of the claims regarding



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transport, the vehicle's registration number, the driver's name, etc., without

appreciating that the Excise Invoice contained all the details of such delivery. He

would submit that it was not necessary for the learned trial Judge to hold that the

evidence lacked evidentiary value in the absence of a certificate under Section 65B

of the Indian Evidence Act, 1872, especially when the Appellant had deposed to

that effect in his examination-in-chief. It is his submission that even the finding

that there was delay in filing of the suit was untenable.



5.        We perused the records of the Trial Court. The Trial Court framed the

following eight issues:

                 Issues
         1.      Whether plaintiff proves that on the oral order placed by the
                 defendant, the plaintiff from time to time sold and delivered the
                 goods to the defendant and raises invoices?
         2.      Whether plaintiff proves that an amount of ₹ 34,03,124/- is due and
                 payable by defendant to plaintiff?
         3.      Whether plaintiff is entitled for recovery of ₹ 34,03,124/- as prayed?
         4.      Whether suit is maintainable?
         5.      Whether suit is within limitation?
         6.      Whether defendant proves that this court has no jurisdiction to try
                 and entertain the present suit?
         7.      Whether plaintiff is entitled for future interest @24 % p.a. as prayed?
         8.      What order and Decree?


6.        Before we consider the evidence adduced before the Trial Court, it is

necessary to refer to the relevant provisions of the Indian Evidence Act, 1872 (‘the

IEA’), which read as thus:


         “34. Entries in books of account when relevant.- Entries in the books of account,


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         including those maintained in an electronic form, regularly kept in the course of
         business, are relevant whenever they refer to a matter into which the Court has to
         inquire, but such statements shall not alone be sufficient evidence to charge any
         person with liability.”
         *****
         “101. Burden of proof. –– Whoever desires any Court to give judgment as to any
         legal right or liability dependent on the existence of facts which he asserts, must
         prove that those facts exist. When a person is bound to prove the existence of any
         fact, it is said that the burden of proof lies on that person.”
         “102. On whom burden of proof lies. –– The burden of proof in a suit or
         proceeding lies on that person who would fail if no evidence at all were given on
         either side.”
         “103. Burden of proof as to particular fact. ––The burden of proof as to any
         particular fact lies on that person who wishes the Court to believe in its existence,
         unless it is provided by any law that the proof of that fact shall lie on any particular
         person.”


7.        Against the backdrop of the provisions of the IEA, we now proceed to

examine the evidence adduced before the Trial Court. The Appellant examined

himself as PW-1. He filed an Affidavit in lieu of his chief-examination and

reiterated the contents of the plaint. He produced a number of documents

comprising copies of invoices pertaining to purchase orders orally placed by the

Respondent with the Appellant. None of these documents were proved by the

Appellant and hence none were exhibited. In his cross-examination, he admitted

that he had not placed on record any delivery challans for the delivery of goods to

the Respondent. In fact, in paragraph 50 of his cross-examination, the Appellant

volunteered that he would have to check purchase orders from the clients. The

Appellant also attempted to produce a voice message between his wife and one

person called Guru, alleged to be a representative of the Respondent, who the

Appellant says placed purchase orders on behalf of the Respondent. However, in

cross-examination, the Appellant admitted that the electronic evidence sought to

be proved by him was not supported by a 65B certificate as required under the


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IEA. Apart from his bare words in his deposition, there is no documentary nor any

corroborative evidence to prove that the goods were delivered to the Respondent.


8.       The Respondent has denied receipt of any goods and, accordingly, any

outstanding amount due to the Appellant. Clearly, the Appellant failed to discharge

the burden of proof required under the IEA.


9.       It appears that the Respondent has not stepped into the witness box.


10.      Based on the deposition adduced before it, the Trial Court answered issues

Nos. 1, 2, 3, 6 and 7 in the negative. The suit was challenged on the ground that it

was time-barred. The said issue was answered in the affirmative and is not under

challenge before this Court.


11.      Having examined the evidence led by the Appellant before the Trial Court,

it is clear that he has failed to establish his claim.


12.      The Appellant submitted before us that he had no evidence to support his

claim of delivery of goods, such as delivery challans or transportation details,

because the Respondent himself transported the goods in his own vehicles.

According to the Appellant, the delivery challans and transportation details are in

the possession of the Respondent. Even if this is presumed to be true, the

Appellant made no effort to serve any notice on the Respondent for the production

of documents, etc., by making any application under the relevant provisions of the

Civil Procedure Code, 1908. In relation to his submissions that the documents on

record indicate that GST and other taxes were deducted on delivery of the goods to


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the Respondent and that the Respondent took benefit of the said deductions, this

submission is stated here only to be rejected, as none of the documents was proved

or exhibited before the Trial Court.


13.      In these circumstances, we find no infirmity in the findings of the Trial

Court. The Commercial Appeal is thus dismissed.


14.      No costs.



(DR. NEELA GOKHALE, J.)                                (G. S. KULKARNI, J.)




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