*	IN THE  HIGH COURT  OF  DELHI  AT NEW DELHI
%						 Reserved on : 10th October 2025
Pronounced on : 04th November 2025
 
+ 	RFA (COMM) 506//2025 & CM APPL. 53205/2025
	ZEN LINEN INTERNATIONAL PVT LTD   .....APPELLANT
Through:  Mr. Abhik Kumar & Mr. Rinku   		 Mathur, Advs.
				versus

	M/S. INDIA EXHIBITIONS		      .....RESPONDENT
				Through:  	Nemo.

	CORAM:
	HON'BLE MR. JUSTICE NITIN WASUDEO SAMBRE
	HON'BLE MR. JUSTICE ANISH DAYAL
     JUDGMENT
	ANISH DAYAL, J.

1. The instant appeal assails the impugned judgment dated 24th March 2025 passed by the District Judge (Commercial Court-01), East District, Karkardooma Courts, Delhi in CS (COMM) 219/2024, dismissing the suit of the appellant (original plaintiff) for recovery on the basis that appellant/plaintiff had failed to prove on record that they were entitled to recover a sum of Rs.7,86,101/- along with interest. 

Factual Background
2. The suit was filed for recovery of Rs.7,86,101/- along with interest by the appellant/plaintiff, who is engaged in the business of textile and fabrication work, while the respondent (original defendant) is in the business of managing events and exhibitions in India, as well as abroad. Appellant/Plaintiff approached the respondent/defendant on 24th May 2022 for organizing two stalls for booth fabrication work at ‘Heimtexil Expo’ to be held in Frankfurt, Germany from 21st June 2022 to 24th June 2022, for an amount of Rs.13,60,000/-, after which an advance of Rs.10,88,000/- was paid to the respondent/defendant. 

Case set up by appellant/plaintiff
3. Appellant/Plaintiff's case was that on reaching Frankfurt, Germany, they came to know that no arrangements were made by the respondent/defendant to set up the stall at the Expo, and when they contacted the respondent/defendant, they came to know that the respondent/defendant had not taken any measures to address the situation.
4. As per appellant/plaintiff, it was the respondent/defendant who diverted the issue to one Mr. Anuj Gautam from ‘M/s. Mavonorm Exhibits Private Limited’ but he also failed to complete the task. Appellant/Plaintiff alleged that they lost their business opportunity and incurred excessive expense to the tune of €8,000 to set up a new stall at the last minute. Appellant/Plaintiff alleged that defendant, vide an email dated 20th June 2022, admitted their lapse and deficiency in service and refunded only Rs.3,27,200/- after two months, while the rest was illegally retained on the ground that it had to be paid by her to Mr. Anuj Gautam of M/s. Mavonorm Exhibits Private Limited.
5. Despite demands by the appellant/plaintiff, the respondent/defendant failed to refund the pending amount of Rs.7,76,101/-. A legal demand notice dated 20th August 2022 was issued to respondent/defendant, duly served, but not responded to. 
6. As per Section 12A of the Commercial Courts Act 2015, pre-institution mediation was attempted at the Mediation Centre, East District, Karkardooma Courts, but due to lack of participation of the respondent/defendant, it did not fructify. 

Case set up by respondent/defendant
7. Respondent/Defendant alleged that the appellant/plaintiff had not approached the Court with clean hands and was guilty of suppression, and therefore not entitled to relief. It was contended that the suit was not maintainable for non-joinder of necessary parties, viz. Mr. Anuj Gautam of M/s. Mavonorm Exhibits Private Limited. It was further contended that Mr. Vipin Mittal is not the proprietor of the respondent/defendant and that the respondent/defendant is a proprietorship concern and not a legal person. 
8. The respondent/defendant admitted that the appellant/plaintiff had given a proposal to provide services for the Expo in Frankfurt, Germany, but since the respondent/defendant predominantly had experience of exhibitions in India, they were not interested and instead introduced Mr. Anuj Gautam, who had the requisite experience for exhibitions abroad. Accordingly, respondent/defendant engaged Mr. Anuj Gautam for the company for fulfillment of the contract, which was agreed to by the appellant/plaintiff. Respondent/Defendant alleged that they had transferred the amount into the account of Mr. Anuj Gautam on the asking of Director of the appellant/plaintiff company, and therefore, were not liable for any further amounts. 

Proceedings before the Trial Court
9. In proceedings before the Trial Court, three issues were framed: 
“1. Whether plaintiff is entitled for a decree of recovery of Rs.7,86,101/- against the defendant?		(OPP)
2. Whether plaintiff is entitled for pendent lite and future interest? If so, at what rate and for which period? (OPP) 3. Relief.”
10. Appellant/Plaintiff examined PW-1, Mr. Deepak Kumar, who reiterated the averments made in the plaint and was cross-examined by the counsel for the respondent/defendant. 
11. Respondent/Defendant examined herself as DW-1 and reiterated the averments in the written statement. Respondent/Defendant also examined the Marketing Manager, Shri Vipin Mittal, as DW-2, who also endorsed the averments in the written statement. Both defence witnesses were duly cross-examined by the counsel for appellant/plaintiff. 
12. The Trial Court examined the pleadings and evidence of the parties. The impugned order focuses (particularly from paragraph 23 onwards) on the deposition of PW-1. PW-1, Mr. Deepak Kumar, was deposing on the strength of Special Power of Attorney as Ex.PW-1/1, executed by Mr. Milind Mungikar, Director of the appellant/plaintiff company. 
13. PW-1, during his examination, deposed that he was working as a salesman, had not brought any identity card issued by the appellant/plaintiff company, and did not remember the exact address of the company. He further deposed that he had never visited the office of the appellant/plaintiff at Chennai.
14. In his cross-examination, PW-1 stated that he was not aware of who was dealing with domestic and international exhibitions in the appellant/plaintiff company, though he did mention that international exhibitions were dealt with by Director, Mr. Milind Mungikar. PW-1 had visited the Chennai office only once, on the day when the Special Power of Attorney was executed in his favor. Neither had PW-1 gone to Germany, where the exhibition was to take place, nor did he know Mr. Anuj Gautam. 
15. He deposed that he was told by Mr. Milind Mungikar that Mr. Anuj Gautam would act in the international exhibition on behalf of the respondent/defendant. He stated he was not aware if Mr. Anuj Gautam was introduced to the defendant by Mr. Milind Mungikar. He only made a bald statement that appellant/plaintiff had given a sum of Rs.10,88,000/- to the respondent/defendant, out of which a sum of Rs.3,27,000/- was refunded, since the exhibition had been cancelled, the reasons for which he was not aware of. 
16. Having recorded and appreciated the testimony of PW-1, the Trial Court held that since he had no knowledge of the transaction and had not produced any material record to show his connection or in what capacity he was working, appellant/plaintiff was unable to prove their case. 
17. Respondent/Defendant’s testimony presented through DW-1 and DW-2 was also examined by the Trial Court. During cross-examination, DW-1, Ms. Kavita, reiterated that respondent/defendant was a proprietorship firm but was being looked after by her husband. She admitted that the appellant/plaintiff had transferred a sum of Rs.10,00,000/- to her account in respect of the work order to be performed in Germany, though she had not gone to Germany. She stated she was only an intermediary and that the actual work was to be performed by Mr. Anuj Gautam, who had international experience, and therefore they had transferred that amount to the account of Mr. Anuj Gautam. 
18. In his deposition, DW-2, Mr. Vipin Mittal stated that he was looking after the day-to-day working of the respondent/defendant firm and acknowledged the work order placed by the appellant/plaintiff which had to be performed in Germany. He stated that neither he nor his wife, Ms. Kavita, had visited Germany but had referred the matter to one Mr. Anuj Gautam on the reference given by Mr. Milind Mungikar. He stated he did not know Mr. Anuj Gautam and had transferred Rs.7,50,000/- into the account of Mr. Anuj Gautam on the asking of the appellant/plaintiff. He reiterated that the respondent/defendant transferred Rs.7,50,000/- into account of Mr. Anuj Gautam and the remaining amount was transferred to the account of the appellant/plaintiff. 
19. Assessing the testimonies on behalf of the appellant/plaintiff and the respondent/defendant, the Trial Court came to the conclusion that testimonies of both DW-1 and DW-2 were consistent, that work had been referred to Mr. Anuj Gautam, and money was transferred into his account, and that the appellant/plaintiff was aware of the said reference, which was, made by the appellant/plaintiff himself through Mr. Milind Mungikar. 
20. The Trial Court therefore, noted that Mr. Milind Mungikar, who was aware of all these facts, had failed to appear as a witness and instead had sent the Special Power of Attorney, Mr. Deepak Kumar, as PW-1, who had no personal knowledge of the transaction. The transfer of money from the respondent/defendant to Mr. Anuj Gautam of Rs.7,50,000/- was proved through bank statement Ex. DW-1/2. 
21. Accordingly, noting the inability of the appellant/plaintiff to prove their case, issue no.1 was decided against the appellant/plaintiff and consequentially issue nos. 2 and 3 as well.  

Grounds of Appeal
22. The appellant/plaintiff’s counsel asserted its grounds in appeal stating that the Trial Court did not apply the mandate of Section 58 of Indian Evidence Act,1872 [hereinafter referred as “IEA”], in that admitted facts need not be proved. The appellant/plaintiff stated that the respondent/defendant unequivocally admitted acceptance of the work order and also admitted to receiving a sum of Rs.10,88,000/- and returning only Rs.3,27,000/-, acknowledging the outstanding liability of Rs.7,61,000/- towards the appellant/plaintiff.
23. Further, the contradiction in the testimony of DW-1 (Ms. Kavita), where she first stated that Rs.10,00,000/- were transferred by the appellant/plaintiff to her account, contradicted the later assertion that only sum of Rs.7,61,000/- was transferred to Mr. Anuj Gautam. It was further submitted that the respondent's own website, Ex DW-1/P-1, disclosed that it was involved both in domestic and international exhibitions. The Trial Court, according to the appellant/plaintiff, ignored the concept of “privity of contract” which existed between appellant/plaintiff and respondent/defendant and not with the third party. 
24. As regards the testimony of Special Power of Attorney holder PW-1 (Mr. Deepak Kumar), it was submitted that the company, being a legal person, can be represented by an employee who was authorized and empowered. Reliance was placed on National Small Industries Corporation Limited v. State (2009) 1 SCC 407, as also on A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790, for the assertion that when a grantor authorizes an attorney holder to initiate legal proceedings, and the attorney holder acknowledges such proceedings, he does so as the agent of the grantor. 
25. Appellant alleged that respondent could not approbate and reprobate, since, on one side, it was setting up a case that it had no role, and on the other side had sent a recovery notice to the third-party, Mr.Anuj Gautam. Reliance in this regard was placed on decisions in State of Uttar Pradesh v. Karunesh Kumar (2022) SCC Online SC 1706, State of Punjab v. Dhanjeet Singh Sandhu (2014) 15 SCC 144 and Maharashtra SRTC v. Balwant Regular Motor Service AIR 196 SC 329.

Analysis
26. There is no doubt in the mind of this Court that the testimony of appellant/plaintiff through PW-1 (Mr. Deepak Kumar) is infirm, inchoate, weak, non-determinative and unhelpful to the case of the appellant/plaintiff. 
27. Settled principles of law encapsulated in Chapter VII, inter alia Sections 101, 102, 103 and 106 of the Indian Evidence Act mandate that the burden of the proof to prove the case set up by plaintiff, is on the plaintiff. The burden has to be discharged in a wholesome, complete, and unshakable manner. 
28. A bare perusal of the testimony of the PW-1 and the cross-examination, as noted above, would incontrovertibly bear out that PW-1 had absolutely no knowledge of the transaction, was merely an authorized person through the Special Power of Attorney to depose on behalf of the company, had absolutely no knowledge of the surrounding facts and circumstances of the transaction, nor the alleged inability to perform by respondent/defendant, nor the existence or involvement of third party Mr. Anuj Gautam. 
29. The appellant/plaintiff would necessarily have to establish and prove the link between the work order issued in favor of the respondent/defendant, the responsibility of execution of the work, and failure thereof. None of these aspects could be proved by the testimony of PW-1. When cross-examined on the testimony given in his chief examination through affidavit, PW-1 had nothing to offer in terms of his personal knowledge, except for making one single statement about the amount being paid and the amount being refunded. 
30. Whether there was failure, and to what extent, by the respondent/defendant to perform the contract is not proved by the appellant/plaintiff. Moreover, this becomes more evident from the testimonies of DW-1 and DW-2, who consistently state that the work was referred to Mr. Anuj Gautam at the behest of appellant/plaintiff, and the money was transferred to him for that purpose, which was in the full knowledge of appellant/plaintiff. 
31. The legal notice dated 10th February 2025 which was issued to Mavonorm Exhibits Private Limited and to Mr. Anuj Gautam, was also addressed to the appellant/plaintiff company. There was no response issued either by Mavonorm or appellant/plaintiff company denying the assertions that the work order had been transferred to Mr. Anuj Gautam. 
32. Not only is the appellant/plaintiff unable to prove its case through its witness, but the suit would also fail for non-joinder of a necessary party. Once the plaintiff was fully aware that the contract was being executed by Mr. Anuj Gautam, impleadment of Mavonorm Exhibits Private Limited through Mr. Anuj Gautam was necessary in order to prove its case for deficiency in service and the inability to perform the terms and conditions of the contract / work order.
33. Order I Rule 9 of the Civil Procedure Code 1908 [hereinafter referred as “CPC”) provides as under:
“9. Misjoinder and non-joinder. —No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.”

34. As is evident from the proviso to Order 1 Rule 9 of CPC, which excepts or insulates cases from being defeated for reason of misjoinder or non-joinder, this protection does not extend to cases where a necessary party has not been impleaded. In such a situation, the suit is liable to fail for non-joinder, since no effective adjudication can take place in the absence of such a party.
35. Reliance placed on National Small Industries Corporation Ltd. v. State (supra) and A.C. Narayanan v. State of Maharashtra (supra) is wholly misplaced. In National Small Industries (supra), the Supreme Court held that a juristic person, being an artificial entity, acts through natural persons, and therefore a duly authorized representative or officer of a company may validly institute and pursue proceedings on its behalf. However, such authorization must be accompanied by competence and knowledge of the underlying transaction. Similarly, in A.C. Narayanan (supra), while dealing with the competence of a power of attorney holder to depose and initiate proceedings under the Negotiable Instruments Act, 1881, the Supreme Court clarified that an attorney holder can file a complaint and depose before the court only in respect of acts performed under due authorization and within the scope of personal knowledge of the transaction. In the present case, PW-1, who was the Special Power of Attorney holder, admittedly had no personal knowledge of the transaction, was not involved in the execution of the contract, and was neither present at the site nor part of any negotiation with the respondent/defendant or Mr. Anuj Gautam. His testimony, therefore, fails to meet the evidentiary threshold enunciated in A.C. Narayanan (supra) and National Small Industries (supra), both of which presuppose personal knowledge and competent authorization on the part of the representative deposing on behalf of a juristic entity.
36. Reliance placed on State of Uttar Pradesh v. Karunesh Kumar (supra); State of Punjab v. Dhanjeet Singh Sandhu (supra); Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (supra); and N. Murugesan v. State, (2020) 16 SCC 600 is misplaced, as each of these cases dealt with distinct principles inapplicable to the present case. In Karunesh Kumar (supra), the Supreme Court held that a party cannot approbate and reprobate, emphasizing consistency in conduct where the State had accepted one position and later sought to deny it; whereas, in the present case, there is no issue of inconsistent conduct by the respondent/defendant but rather failure of the appellant/plaintiff to establish its case on evidence and join a necessary party. In Dhanjeet Singh Sandhu (supra), the Court invoked equitable principles of waiver and acquiescence in land allotment disputes, which do not arise here. Maharashtra SRTC (supra) dealt with the maintainability of writ petitions and the bar of laches after a party had acquiesced to an administrative order which again, is wholly irrelevant to the commercial recovery claim before this Court. Similarly, N. Murugesan (supra) reiterated that one who benefits from a proceeding cannot subsequently challenge its validity, a principle that has no bearing here since the appellant/plaintiff never acted upon any benefit from the respondent/defendant’s conduct. 
37. Accordingly, the aforementioned decisions, being based on distinct factual and legal contexts, have no application to the present controversy which turns on evidentiary insufficiency and non-joinder of a necessary party.
38. The appellant/plaintiff’s contention is that the work order in favour of the respondent/defendant was admitted, and payment for which only a part refund had been given, which formed the basis of the case of the appellant/plaintiff. Taken on its bare facts, aside from the issue of Mr. Anuj Gautam, the crucial point would arise whether the work itself was executed or not in a proper manner and for which a refund was deserved and necessitated to the appellant/plaintiff. This aspect was completely unproven throughout the testimony of PW-1. 
39. There is nothing in the testimony of PW-1 tested through cross-examination, would substantiate or prove the alleged deficiency in execution of work being performed under the work order by the respondent. Therefore, in any event, aside from the controversy arising out of the non-joinder of parties, the appellant/plaintiff has been unable to prove its case.
40. In these circumstances, the Court is not inclined to entertain this appeal, and therefore the appeal stands dismissed.
41. Pending application is rendered infructuous.  
42. Judgement be uploaded on the website of this Court

	
NITIN WASUDEO SAMBRE, J

ANISH DAYAL, J
NOVEMBER 04, 2025/sm/tk
                                        


RFA (COMM) 506/2025 05/12