IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4096 of 2025 [On note dated 24/11/2025 in R/FA/4096/2025 ]

With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/FIRST APPEAL NO. 4096 of 2025 ==========================================================

DILIPBHAI BABABHAI ZAVERI PROPRIETOR OF M/S BHAGWATI JEWELLERS Versus SONI SHANTILAL RAMJIBHAI PROPRIETOR OF SONI SHANTILAL RAMJIBHAI ==========================================================

Appearance:

MR.NIRAV C.THAKKAR, ADVOCATE FOR MR. AMIT R TIWARI(9947) for the Appellant(s) No. 1 MR SP TAMANG(883) for the Defendant(s) No. 1 MR YATIN SONI(868) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR.JUSTICE D.N.RAY Date : 24/11/2025

ORAL ORDER

(PER : HONOURABLE MR.JUSTICE D.N.RAY)

1. Heard Mr. Nirav C. Thakkar, learned advocate for Mr. Amit R. Tiwari, learned advocate for the appellant and Mr. Yatin Soni, learned advocate with Mr. S. P. Tamang, learned advocate for the respondent No. 1.

2. The material facts are set out as follows:

2.1 The appellant is a partner of M/s. Bhagwati Jewellers, a registered partnership firm engaged in the business of gold ornaments. The respondent, who is also engaged in the trade of jewellery, asserted that in January 2017 he had sold to the appellant gold ornaments valued at Rs. 29,06,334/-, weighing 1256.710 grams. It was further the respondent’s case that the appellant had made two part-payments towards the said trans- action, namely Rs. 6,07,600/- on 22.11.2017 and Rs. 3,00,000/-

on 22.08.2019, leaving a substantial balance outstanding.

2.2 The appellant, on the other hand, categorically denied the alleged sale and asserted that no goods were ever deliv- ered by the respondent. According to the appellant, the pay- ments referred to by the respondent were merely advances to- wards a prospective order which ultimately did not materi- alise, and therefore no liability of the nature claimed could arise.

2.3 The respondent instituted Commercial Civil Suit No. 262 of 2021 before the Commercial Court, Ahmedabad, seeking recovery of the outstanding amount with interest. Upon ap- preciation of the evidence, including the respondent’s books of accounts and the cross-examination of the appellant’s wit- nesses, the learned Commercial Court recorded a finding that the sale transaction was duly proved and that the appellant had paid a total of Rs. 9,07,600/- as part-payment. Accord- ingly, by Judgment and Decree dated 20.05.2025, the suit came to be decreed for Rs. 26,18,494/- with 12% simple inter- est from the date of the suit until realization, along with costs. 3. Being aggrieved by the aforesaid Judgment and Decree, the appellant has preferred the present appeal, contending that the findings of the Commercial Court are erroneous, un- supported by substantial evidence, and deserve to be set aside.

4. Mr. Nirav C. Thakkar, learned advocate appearing for Mr.Amit R. Tiwari, learned advocate on behalf of the appel- lant, contended that the primary burden of proof squarely rests upon the respondent–plaintiff in the Commercial Suit. It was submitted that an amount of Rs. 9,07,600/– was paid to the respondent only as an advance, and that no corresponding goods were ever supplied. It was also argued that the appel- lant had consistently denied receipt of any goods and had specifically asserted that the invoices relied upon by the respondent were fabricated and did not pertain to any actual transaction. It was further urged that the mere fact of having obtained a VAT refund, even if assumed to be true, does not, by itself, establish the actual physical delivery of goods to the appellant. It was further pleaded by Mr.Thakkar that it is the appellant -defendant who had actually placed advance orders on the respondent-plaintiff. It is these entries that are being falsely claimed by the plaintiff-respondent as part payment. According to Mr. Thakkar, in