Delhi District Court
M/S Servotech Renewable Power Systems ... vs Genex Logisolutions Private Limited on 4 July, 2025
IN THE COURT OF VIKAS DHULL
DISTRICT JUDGE (COMMERCIAL COURT)-02
SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CS (COMM)/372/2022
DLSW010073022022
In the matter of :
M/s.Servotech Renewable Power Systems Limited
(Earlier Known as M/s Servotech Power
Digitally
signed by
VIKAS
Systems Limited)
VIKAS DHULL
DHULL Date:
2025.07.04
At 806, 8th Floor, Crown Heights
16:04:33
+0530 Hotel Crown Plaza, Sector-10
Rohini, Delhi-110088
... Plaintiff
Versus
M/s.Genex Logisolutions Private Limited
Genex House, 3rd Floor, Plot No.10, LSC-2
Sector-6, Dwarka,
Delhi-110075
... Defendant
Date of institution of suit : 28.07.2022
Date on which judgment reserved : 28.05.2025
Date on which judgment pronounced : 04.07.2025
JUDGMENT
1. This is a commercial suit filed by the plaintiff claiming Rs.77,96,663/- alongwith interest, claiming Rs.50,00,000/-
CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 1/36 towards damages, seeking declaration that the five cheques mentioned in the prayer clause be declared as null and void and consequently, mandatory injunction be issued against defendant directing it to return the aforesaid five cheques to the defendant.
Brief Facts
2. The brief facts, as culled out from the plaint, are that plaintiff is the market leader in India for LED lights and solar products. It was averred in the plaint that plaintiff company had obtained a tender from Indian Oil Corporation Limited to install LED lights in the petrol pumps situated in various locations in the country. It was further averred that defendant had approached the plaintiff company and made a representation that it has the ability to quickly deliver the material as provided by plaintiff company to various locations in the country in a swift manner. Accordingly, the plaintiff and defendant started doing business. It was averred that from the very beginning, plaintiff company started realizing that defendant company was unable to provide the services as assured and represented to the plaintiff. It was averred that plaintiff company had handed over a huge quantity of material to the defendant but defendant company miserably failed to make any delivery within a reasonable time. It was further averred that in the course of delivery of material, a huge quantity was stolen due to unprofessional and lack of reasonable care on the part of defendant which caused a wrongful loss to plaintiff company.
CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 2/36
3. It was averred that plaintiff company had paid 20% advance against the shipment. However, more than 34 locations for Tamil Nadu and 34 number of deliveries in the State of Rajasthan, J&K, UP, deliveries were not completed by the defendant. It was averred that defendant company started blackmailing by holding the deliveries and asking for payments, which was not as per the terms settled between the parties. It was averred that plaintiff company had already paid around Rs.24 Lacs to the defendant company but despite that defendant company had failed to discharge its duty and held the goods of the plaintiff company.
4. It was further averred that on the basis of lack of information about the delivery status of consignment, wrong and unjustified invoices, failure to supply the specific quantity of the stolen material, illegally holding the consignment and demanding unjustified payments from plaintiff, plaintiff company was constrained to repudiate the business with the defendant and accordingly communicated the same vide email dated 10.07.2019 and also made a police complaint on 03.07.2019.
5. It was further averred that vide email dated 10.07.2019, it was made clear to the defendant company that plaintiff is not liable to make any payment to defendant and it was further advised not to present the cheques and return the same to the plaintiff as there was no liability against the plaintiff. The plaintiff also provided the details of the five cheques, which were in the possession of defendant. It was averred that defendant CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 3/36 presented the said cheques for encashment with an intention to harass and blackmail and extort a huge sum of money from the plaintiff.
6. It was further averred that due to non delivery of goods by defendant, plaintiff company was compelled to re- manufacture the goods worth Rs.39,63,653/- and Indian Oil Corporation Limited also imposed penalty upon plaintiff due to non delivery / late delivery. Therefore, debit notes and invoices were raised upon the defendant by the plaintiff company. It was averred in the plaint that defendant is liable to pay a sum of Rs.51,63,353/- to plaintiff on account of invoices and debit notes and if interest is added, then total amount due from defendant is Rs.77,96,663/-. It was further averred that plaintiff has also suffered damages to the tune of Rs.50,00,000/- and defendant is liable to pay the same. Accordingly, the present suit was filed after the failure of pre-institution mediation.
7. Summons of the suit were issued to the defendant, who on being served, had filed its written statement.
8. In the written statement, defendant denied the entire facts as averred in the plaint being incorrect, false, misconceived and based on conjectures, surmises and self serving assumptions. It was submitted that plaintiff had approached the defendant for logistic support and in furtherance of the same, defendant had reached an understanding with the plaintiff to initiate business transactions with the plaintiff and had agreed to provide plaintiff with logistical support on the condition that CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 4/36 20% of the amount of each shipment would be paid in advance and rest of the amount shall be immediately paid on delivery of shipment and same was communicated and agreed on emails against which approval of rates was agreed by plaintiff.
9. It was submitted that plaintiff initiated business transactions with defendant on 29.11.2018. It was submitted that with regard to direct pickups, goods were picked from the factory of plaintiff and delivered to the consignee on the instructions of plaintiff and with regard to Hub deliveries, due to insufficient space at plaintiff's factory, goods were stored using the defendant's network of warehouses and stored goods were to be delivered to the consignee as and when instructions were received from the plaintiff. It was submitted that there was no time line defined or agreed for delivery of shipments.
10.It was submitted that defendant had completed delivery of 785 shipments as per instructions received from plaintiff from time to time in an infallible manner. It was submitted that the alleged plea of delayed delivery is an afterthought and a bogus plea raised by the Plaintiff to avoid clearance of the payment towards complete shipments as in none of the instructions, plaintiff had specified any time line for delivery of shipments.
11.It was submitted that from perusal of accounts of plaintiff maintained by the defendant during its due course of business, it is evident that plaintiff has never adhered to the CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 5/36 time line of payments and it was done with malafide motive to usurp the payment due and payable to the defendant.
12.It was submitted that plaintiff had continuously been giving orders to the defendant upto the month of May, 2019. Therefore, the allegations with regard to delayed deliveries hold no water as if that was the case, then plaintiff would not have placed orders upon the defendant.
13.It was further submitted that plaintiff has failed to make payment of advance amount to the defendant against each shipment and has failed to clear the outstanding payments despite deliveries of the shipments completed by the defendant.
14.It was submitted that defendant made request for payments but plaintiff initially delayed it under the garb of shortage of funds and reconciliation and thereafter, plaintiff had mischievously shared an email ignoring certain invoices and showing reduced outstanding payment i.e. to the tune of Rs. 11,22,993/- payable to the defendant for the period of November 2018 to 07.05.2019 against the total outstanding of Rs.27,05,815/- for completed shipments.
15. It was submitted that plaintiff requested for time to clear the outstanding amount, however, desecrated the terms and conditions put forth by the defendant with the malafide intentions to forfeit the payment towards the services already rendered by the defendant.
16.It was submitted that defendant being in professional relationship, agreed to accept the post dated cheques given by CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 6/36 plaintiff towards partial discharge of its outstanding with the assurance that they will be honoured. It was submitted that believing the assurances of payment, defendant continued to render its services. However, plaintiff with malafide intentions, had stopped the cheques handed over to the defendant. It was submitted that all the cheques handed over to defendant except cheques dated 10.06.2019 and 04.07.2019 got dishonoured due to reason " payment stopped by the drawer". Therefore, defendant filed a complaint case under Section 138 of the NI Act, 1881 against the plaintiff. It was submitted that defendant was constrained to make request for upfront payment in lieu of last lot of delivery due to complete lack of trust.
17.It was submitted that the total freight value of delivered shipments amounts to Rs.46,67,026/-against which invoices have been raised. It was submitted that out of the said amount, on account payment amounting to Rs.25,96,488/- were paid. However, outstanding invoice amount of Rs.20,70,538/- is till due and payable by the plaintiff towards services already rendered by defendant alongwith interest as per the MSME Act and liable to remit charges towards demurrage and storage of goods to defendant.
18.It was submitted that plaintiff as a counterblast and to avoid making payments started raising concocted and frivolous issues with respect to alleged delayed deliveries The Plaintiff left no stone unturned to harass and pressurize the CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 7/36 defendant and have even filed series of police complaints before several police stations in different jurisdictions.
19.It was submitted that as and when payment were demanded by defendant, numerous allegations such as delayed deliveries / reconciliation of accounts etc. were alleged by the plaintiff. It was submitted that despite dishonour of cheques, defendant continued to honour its commitments. It was submitted that due to plaintiff's recalcitrant attitude, payment of transporters of defendant was also not being released.
20.It was submitted that plaintiff never gave clear picture on clearing the outstanding payment leading to complete loss of trust between the parties.
21.It was submitted that the last mile transporters of the defendant were unable to move the goods due to non- payment of their dues and non-renewal of e-way bills, both of which are solely attributable to the plaintiff. It was submitted that plaintiff raised frivolous allegations from time to time and failed to make payment to the defendant for the shipments already delivered by the defendant. It was submitted that from the month of May 2019, defendant was constrained to stop accepting further shipments from the plaintiff and sought the support of plaintiff to complete the delivery of undelivered shipments. However, due to acts solely attributable to the plaintiff, said shipments that is the left out goods stored at warehouse hub owned by defendant's partner, are lying at the said warehouse and CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 8/36 defendant is incurring massive charges towards the same. It was further submitted that despite request made by defendant, plaintiff did not take back the said shipment / goods. Accordingly, it was submitted that plaintiff is liable to pay for the warehousing charges.
22.It was submitted that with regard to allegations with regard to stolen goods, plaintiff had not submitted any supporting document. It was submitted that it was agreed that well in advance that the goods shall be insured by the plaintiff. Therefore, when the goods were stolen, all the required documentation such as FIR copy and Shortage certificate was provided by defendant to the plaintiff to claim insurance. Thus, defendant has no liability to pay towards such loss of goods in transit.
23.It was further submitted that the allegations with regard to damages suffered by the plaintitl in its contract with Indian Oil Corporation are misconceived. It was submitted that defendant was not a party to the said contract with Indian Oil Corporation. Further, all delivery of the shipments were made as per the instructions received. Hence, loss if any incurred by the plaintiff shall be borne by the plaintiff alone and the burden of the same cannot be passed onto the defendant.
24.It was submitted that defendant at no point of time, had retained the goods of the plaintiff. To the contrary, it was the defendant, who was following up with plaintiff for delivery of goods.
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25.It was further submitted that defendant is not liable to pay to the plaintiff Company against the alleged raised invoice dated 29.06.2019 of Rs.39,63,353/- and one debit note dated 31.05.2009, one of Rs.10,00,000/-and another debit note date 28.06.2019 of Rs.2,00,000/-- as the said invoices and debit notes are fictitious and manufactured for raising the frivolous claims to wriggle out liability of plaintiff to pay due amount towards the services rendered by the defendant. Remaining averments made in the plaint were denied.
26.In the replication filed by plaintiff, all the averments made in the written statement were denied and those stated in the plaint were reiterated.
Issues
27.From the pleadings of the parties, the following issues were framed vide order dated 17.05.2023: --
(1)Whether the plaintiff is entitled for decree of declaration declaring the cheques bearing No.796864, 796935,796936, 796938 and 796953 drawn on United Bank of India, Greater Kailash, New Delhi as null and void? OPP (2)Whether plaintiff is entitled for decree of mandatory injunction in favour of plaintiff and against the defendant thereby directing the defendant to return the cheques bearing no. 796864, 796935,796936, 796938 and 796953 drawn on United Bank of India, Greater Kailash, New Delhi ? OPP (3)Whether plaintiff is entitled for a decree of recovery of Rs.50,00,000/- as damages / compensation, as prayed for? OPP (4)Whether plaintiff is entitled for decree of Rs.77,96,663/- against the defendant, as prayed for?
OPP CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 10/36 (5)Whether plaintiff is entitled for any interest? If so, at what rate? OPP (6)Relief.
Evidence
28.Thereafter, the matter was posted for plaintiff's evidence. In his evidence, plaintiff had examined PW1 Sh. Mrityunjay Jha, who relied upon Board Resolution dated 21.01.2023 and 16.03.2022, certified copies of cheques bearing nos. 796864, 796935,796936, 796938 and 796953, certified copies of e- mails and complaint dated 12.03.2022. PW1 was thoroughly cross examined by defendant and was discharged. No other witness was examined on behalf of plaintiff. Accordingly, plaintiff's evidence was closed.
29.Thereafter, the matter was posted for defence evidence.
30.In defence evidence, defendant examined DW1 Sh. Mansingh Jaswal, who relied upon Board Resolution dated 10.02.2023, MSME certificate, chain of emails, copies of invoices, ledger of plaintiff and proof of deliveries of shipments and certificates under Section 65B of the Indian Evidence Act. Defendant also examined DW2 Sh.Raj Aryan, Branch Head, Punjab National Bank (Erstwhile United Bank of India) Branch Office Kailash Colony, New Delhi, who proved details of cheques bearing nos. 796863, 796864, 796865 796935,796936, 796937, 796938 and 796953. DW3 Sh. Luv Kumar Mishra, Relationship Manager, Kotak Mahindra Bank, Dwarka Sector 5, Delhi, who proved details of cheque bearing no. 796863 issued by plaintiff to defendant and CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 11/36 deposited in bank account of defendant. DW1, DW2 and DW3 were also thoroughly cross examined by the plaintiff and were discharged. No other witness was examined on behalf of defendant. Accordingly, defence evidence was closed.
31.Thereafter, the matter was posted for final arguments.
32.I have heard Sh.Neeraj Gupta, Ld.counsel for plaintiff and Sh.K.P.Singh, Ld.counsel for defendant and have carefully perused the record.
Arguments on behalf of plaintiff
33. It was submitted by Ld.counsel for plaintiff that in the present case, the five cheques, which are Ex.PW1/3 to Ex.PW1/7 are not issued in discharge of any liability but were issued as security to ensure the timely delivery of consignment by defendant. However, defendant after taking the five aforementioned post dated cheques did not deliver the consignments to the respective locations. Thereafter, plaintiff was constrained to stop the payment of aforementioned five cheques and intimation in this regard was given to the defendant vide email dated 24.06.2019 and 25.06.2019.
34.It was further submitted that thereafter, further payment of Rs.8.2 Lacs was also made by plaintiff to defendant but still delivery of consignment was not made and defendant was insisting upon the confirmation of balance amount of Rs.24.00,000/- by plaintiff for delivering the consignments. Since plaintiff did not confirm the illegal demand raised by defendant, therefore, defendant had presented the cheques for CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 12/36 encashment and had filed a criminal complaint under Section 138 of the NI Act, 1881.
35.It was further submitted that cheques were issued to defendant as security to ensure delivery of consignments but defendant with malafide intention, had presented them for encashment knowingfully well that they were not issued for any liability. Ld.counsel for plaintiff had also drawn the attention of this court to various communication exchanged between the parties through emails at page nos.38 to 52 of Ex.PW1/8 (colly) to support his submission that cheques were not issued in discharge of any liability but were in fact issued for security to ensure timely delivery of consignment by defendant.
36.It was further submitted that defendant had summoned the bank witness of plaintiff i.e. DW2 in his defence and he has proved on record that plaintiff was having sufficient balance in his account to honour the cheques. This fact further proves that plaintiff had never issued cheques for any liability and the same were issued as security for timely delivery by defendant. If plaintiff had indeed issued cheques for liability then, there was no reason for the plaintiff to have got the same stopped as he was having sufficient amount in his account for the honourment of cheques.
37.It was further submitted that there is variance in the outstanding amount due to the defendant and the number of deliveries which were pending as per the version of the defendant. It was submitted that defendant has mentioned CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 13/36 different outstanding amounts at page no.5 and 6 of his written statement and as per ledger account filed on record by defendant.
38.Further, there was also variance in the number of deliveries effected by defendant. It was submitted that in certain emails, defendant had claimed that out of 801 shipments, 737 deliveries were effected whereas in his email dated 01.05.2019, it was mentioned that only 1-2 shipments were pending for delivery whereas in other email, defendant had submitted that only 19 shipments were pending for delivery. Accordingly, a prayer was made that decree for declaration be passed declaring the aforesaid five cheques to be null and void as they were not issued for any liability.
39.It was further submitted that due to withholding of consignments of plaintiff, plaintiff was constrained to manufacture goods worth Rs.39,63,353/- and was also constrained to issue two debit notes of Rs.10,00,000/- and Rs.2,00,000/- to the plaintiff due to imposition of penalty on account of non delivery / late delivery of consignment and, therefore, plaintiff has proved that defendant is also liable to pay a sum of Rs.51,63,353/- with interest, which comes to Rs.77,96,663/-. Accordingly, a prayer was made for allowing the claim of plaintiff.
Arguments on behalf of defendant.
40.It was submitted by Ld.counsel for defendant that all the claims made by plaintiff are required to be dismissed.
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41.It was submitted that there was breach of terms of agreement by plaintiff, as plaintiff failed to honour the payment terms, as agreed between the parties and, therefore, plaintiff cannot take advantage of his own wrong. It was submitted that it was agreed between the parties that against each delivery, plaintiff was to pay 20% amount in advance and balance 80% after the shipment. Said fact was also admitted by PW1 in his cross examination. However, despite agreement between the parties, with regard to payment terms, plaintiff failed to make the payment against the shipments, which led to huge accumulation of the outstanding amount against the plaintiff in the month of May, 2019.
42.It was further submitted that plaintiff admitted and acknowledged the outstanding payments vide their email dated 01.05.2019 Ex.PW1/73 (Colly). It was further submitted that even the plaintiff had shared the reconciliation of accounts with the defendant vide email dated 20.05.2019 Ex.DW1/70 (Colly). In the said email, plaintiff admitted that as on 07.05.2019, there was an outstanding liability of Rs. 11,22,993/- against the plaintiff and invoices worth Rs.13,07,675/- were also received by plaintiff from the defendant but were not entered into their books. Therefore, there was a clear cut admission made by plaintiff vide Ex.DW1/70 that there was an outstanding liability of Rs.24,30,668/- against the plaintiff.
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43.It was further submitted that pursuant to aforesaid email Ex.DW1/70, defendant had requested the plaintiff to clear the outstanding liabilities and plaintiff confirmed vide their email dated 22.05.2019 [Part of Ex.PW1/8 (Colly)] to hand over the post dated cheques of Rs.11,00,000/- and in response to the same, defendant had assured to make the deliveries by 31.05.2025 provided that balance amount of Rs. 12.5 Lacs is cleared by plaintiff till 27.05.2019.
44.It was further submitted that thereafter, plaintiff had handed over three post dated cheques dated 23.05.2019, three cheques dated 15.06.2019 and one cheque dated 18.06.2019. and out of the aforesaid seven post dated cheques, only two were cleared. Thereafter, payment of the remaining five cheques was stopped by the plaintiff even though plaintiff admitted to have received 785 shipments.
45.It was further submitted that five cheques in question were issued against the admitted liability of plaintiff and as plaintiff failed to perform his promise, therefore, defendant was not bound to perform his reciprocal promise and as per Section 51, 52 and 54 of the Indian Contracts Act, 1872.
46.It was further submitted that even plaintiff has failed to prove that there was any delay in the delivery of shipments. On the contrary, PW1 in his cross examination has admitted that till the month of April, 2019, they had not raised any issue of deficiency of service or delay in the delivery of shipments. Further, plaintiff has not filed on record any document to show that there was any delay on the part of CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 16/36 defendant in delivering the shipments. It was further submitted that plaintiff has raised the issue of delay in delivery just to avoid his liability.
47.It was further submitted that plaintiff is also not entitled to any claim of Rs.77,96,663/- or damages of Rs.50,00,000/- as plaintiff has not placed on record any evidence to show that loss was suffered by plaintiff, on account of remanufacutred and transporting goods to different locations in the country. It was further submitted that plaintiff has failed to demonstrate that alleged 64 delivery locations were pending and re-manufactured goods were supplied to the alleged 64 locations. Further, plaintiff has failed to lead any evidence to show that Indian Oil Corporation Limited had imposed any kind of penalty upon the plaintiff for non-delivery / late delivery of shipments. Accordingly, a prayer was made to dismiss the suit of the plaintiff.
48.In support of his submission, Ld.counsel for defendant has relied upon the following judgment of the Hon'ble Supreme Court of India delivered in (1) Kusheshwar Prasad Singh V. State Of Bihar, (2007) 11 SCC 447; (2) of the Hon'ble Punjab Haryana High Court in the case titled as Rajimder Singh Singh And Ors. Vs. Ranjeet Singh, (05.01.2024 - PHHC) Case No. RSA-1771-2023 (O&M) (Reference in this regard can also be drawn to the case titled as Pushkarnarayan S. Maheshwari Vs. Kubrabai Gulamali, reported as (1969) 71 BOMLR 769; (3) of the court of CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 17/36 Ld.ADJ, South West, Dwarka District, Delhi in case titled as Karan Cab Services (P) Ltd. V. Venu Hydraulic (P) Ltd. Civil Suit No. 866/17.
49.I have considered the rival submissions of respective parties and have carefully perused the record.
Finding
50. My findings on various issues is as under:--
Issues No.1 and 2(1) Whether the plaintiff is entitled for decree of declaration declaring the cheques bearing No.796864, 796935,796936, 796938 and 796953 drawn on United Bank of India, Greater Kailash, New Delhi as null and void? OPP (2) Whether plaintiff is entitled for decree of mandatory injunction in favour of plaintiff and against the defendant thereby directing the defendant to return the cheques bearing no. 796864, 796935,796936, 796938 and 796953 drawn on United Bank of India, Greater Kailash, New Delhi ? OPP Both these issues are inter connected, therefore, they are being taken up together for disposal.
In order to prove the aforesaid issues, the plaintiff had examined its authorized signatory i.e. PW1 Sh. Mrityunjay Jha. As per the evidence of PW1, plaintiff company had obtained a contract from the Indian Oil Corporation to install LED lights in various petrol pumps situated in various locations in the country and accordingly, defendant was engaged to transport the LED lights. It was further deposed by PW1 that due to delay in supplying the consignment, wrong and unjustified invoices, failure to CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 18/36 supply specific quantity of the stolen material, illegal withholding delivery to 64 locations in Tamil Nadu, Rajasthan, Jammu and Kashmir and Uttar Pradesh and demanding unjustified payment from the plaintiff, plaintiff had terminated the contract with the defendant vide email dated 10.07.2019 at page no.56 Ex.PW1/10 and had also asked the defendant to return the five cheques which are exhibited as Ex.PW1/3 to Ex.PW1/7 as the cheques were not issued in discharge of any liability.
51.In the entire evidence of PW1, terms of the agreement between the plaintiff and the defendant were not disclosed and even the deliveries made by defendant were not disclosed. It was only, during the course of cross examination of PW1, it came on record that contract between the plaintiff and the defendant was oral in nature and as per the terms of the contract, for each consignment, 20% advance transportation charges were required to be paid by plaintiff to defendant and balance 80% to be paid on delivery of consignment by defendant. PW1 also admitted in his cross examination that defendant had carried out delivery of consignment between the period from November, 2018 till April, 2019 and during this period, there was no delay or deficiency in the services provided by defendant. Therefore, in the light of admissions made by PW1, it was for the plaintiff to have proved on record as to the number of deliveries completed by defendant till April, 2019 and what was the payment due towards the defendant CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 19/36 and what was the payment made by plaintiff to the defendant. However, in the entire evidence of PW1, details of 20% advance payment for each consignment, number of consignments delivered by defendant till April, 2019 and the payment made by plaintiff to the defendant with regard to completed deliveries, was not provided and even no statement of account was filed on record by the plaintiff.
52. However, the details of the number of shipments/ consignments handed over to defendant and number of deliveries made by defendant can be taken out from the emails communication exchanged between the parties and filed on record by plaintiff himself which is Ex.PW1/8 (Colly). As per the email dated 22.05.2019 sent by defendant to plaintiff at page no.52 of Ex.PW1/8 (Colly), total shipments picked up by defendant was 801, out of which 737 were delivered. In the said email, the transportation charges being claimed by defendant was to the tune of Rs.38,85,905/-from the plaintiff. Defendant also acknowledged vide this email of having received part payment of Rs.15,32,685/-. It was further apprised by defendant that they have given all the details to Ms.Anita Thakur, employee of plaintiff for reconciliation of accounts and accordingly, payment was demanded with regard to delivered shipments.
53.In the evidence of DW1, he has relied upon email dated 22.05.2019 sent by Ms.Anita Thakur on behalf of plaintiff to the defendant sharing reconciliation of accounts and CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 20/36 apprising defendant about the outstanding payment as on 07.05.2019. The said email Ex.DW1/70 (Colly) has not been disputed by plaintiff in the evidence of DW1 and hence, is an admitted document.
54.As per the said email Ex.DW1/70 (Colly), there was an outstanding of Rs.11,22,993/- against the plaintiff as on 07.05.2019 and it was further mentioned in the reconciliation sheet that invoices worth Rs.13,07,675/-, which were raised by defendant, were not entered into the books of the plaintiff. Therefore, as per this reconciliation sheet, if the amount of the invoices and the outstanding amount are added, then, the total amount due and payable by plaintiff is to the tune of Rs.24,30,668/- (Rs.11,22,993/- + Rs.13,07,675/-) as on 07.05.2019.
55. The email filed on record by defendant Ex.DW1/70 (Colly) is further corroborated by plaintiff's own document i.e. email Ex.PW1/9. In the said email dated 20.05.2019 Ex.PW1/9, plaintiff has asked the defendant to reconcile their accounts through Ms.Anita Thakur and thereafter, plaintiff had undertaken to issue post dated cheques regarding their balance payment.
56.Further, as per the admitted case of defendant, Rs.8,22,993/- was further received from plaintiff between 30.05.2019 till 04.07.2019 as per ledger account filed on record Ex.DB. Therefore, if the adjustment of Rs.8,22,993/- is given to the plaintiff, then also as on 04.07.2019, there was an outstanding balance of Rs.16,07,675/- towards the plaintiff.
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57.In the present case, cheques Ex.PW1/3 to Ex.PW1/7 as per admitted case of plaintiff were handed over to the defendant on 23.05.2019, 15.06.2019 and 18.06.2019. Further, apart from cheque no. 796864 which is dated 22.06.2019, remaining four cheques are dated 15.07.2019, 19.07.2019, 07.08.2019 and 18.08.2019. The amount of the aforementioned five cheques is Rs.3,00,000/-, Rs.2,00,000/-, Rs.2,00,000/-, Rs.2,25,000/- and Rs.2,51,268/- respectively, the total of which comes to Rs.11,76,268/-.
58.Therefore, in the backdrop of the aforementioned admitted facts, evidence which has been led on record by plaintiff is required to be appreciated. As per evidence of PW1, number of reasons have been cited for stoppage of payment of cheques Ex.PW1/3 to Ex.PW1/7.
59.I shall deal with all the reasons one by one. The first reason, which has come in the evidence of PW1 for stopping the payment of cheques is delay in the delivery of consignment by the defendant. The said reason has not been proved on record as PW1 in his cross examination has admitted that from November, 2018 till April, 2019, there was no delay in the delivery of consignments. Further, with regard to remaining consignments, which have been delivered by defendant from April, 2019 till May/June, 2019, onus was upon the plaintiff to have produced evidence on record to show that as to what was the time line agreed between the parties and what was the delay caused by the defendant.
CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 22/36 However, no material in the form of invoices issued by defendant having the date of delivery or any other document showing the actual date of delivery has been produced on record by plaintiff to show that there was delay in the delivery of consignments as per the time line provided by defendant. Further, plaintiff has also not examined any witness from the Indian Oil Corporation Limited in support of the fact that there was delay in receipt of consignments at various Indian Oil Petrol Pump locations in the country. Therefore, plaintiff has miserably failed to prove any delay on the part of defendant in delivery of consignments post April, 2019.
60.The second ground for stopping the payment of cheques given by PW1 was that defendant had issued wrong and unjustified invoices. Even the said ground has not been proved on record as plaintiff has failed to file on record the so called specific wrong and unjustified invoices.
61.The third ground provided by PW1 for stoppage of payment of cheques was unjustified demand by defendant from the plaintiff. Even the said ground has not been proved on record by plaintiff. On the contrary, as discussed hereinabove, plaintiff has himself admitted its liability to the tune of Rs.24,30,668/- as on 07.05.2019 as per Ex.DW1/70 pursuant to which cheques Ex.PW1/3 to Ex.PW1/7 were issued and further, part payment of Rs.8,22,993/- was made to the defendant.
CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 23/36
62.The fourth ground which was deposed by PW1 for withholding the payment of cheques in question was the failure to supply specific quantity of stolen material. In this regard, defendant has himself filed on record document Ex.DW1/71, wherein details of shortage of material due to theft in transportation of goods have been provided to the plaintiff. As per this certificate, around 10 boxes of 80W Canopy Light could not be delivered by defendant due to incident of theft. The defendant had also provided a copy of FIR No. 0251 PS Aagar of 2019 to the plaintiff vide Ex.DW1/71. Therefore, the said document Ex.DW1/71 proves that defendant had intimated the plaintiff regarding the theft of the material and even the shortage certificate regarding 10 boxes of 80W Canopy Light was also issued.
63.Further, as per the said certificate, plaintiff was entitled to claim damages from the Insurance company. However, in the entire evidence of PW1, it has not been specified as to whether plaintiff company had claimed any damages from the insurance company regarding the theft of its material as per Ex.DW1/71. Further, if plaintiff company had not claimed any claim from the insurance company, then at the most, plaintiff company would have been entitled to claim the value of the theft material from the defendant. However, what was the value of the material stolen as per the shortage certificate, has not been brought on record by PW1 in his evidence. Therefore, PW1 has failed to prove the value of the stolen material and has further failed to prove as to CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 24/36 whether defendant is liable to pay for the stolen material or not. Therefore, this fact also do not give any ground to plaintiff for withholding of payment of cheques.
64.The last ground raised by PW1 in his evidence regarding stopping of payment of cheques is illegal withholding the consignments by the defendant. As per the evidence of PW1, 34 consignments for Tamil Nadu, 34 consignments for the State of Rajasthan, Jammu and Kashmir and Uttar Pradesh were not delivered by the defendant and the same was being withheld by the defendant illegally. However, during the course of cross examination, PW1 expressed ignorance regarding the deliveries made by defendant post April, 2019. However, said ignorance has been cleared by defendant by producing on record an email dated 25.06.2019 [part of Ex.DW1/74 (Colly) at page no.54] sent by plaintiff to the defendant wherein with regard to pending 64 consignments, plaintiff acknowledged regarding receiving confirmations for 30 consignments and, therefore, balance consignments due were 34 in number only.
65.Further, defendant vide their email dated 27.06.2019 [part of Ex.DW1/74(Colly)] had apprised the plaintiff that pursuant to encashment of first dishonoured cheque on 18.06.2019, they had further delivered 15-16 shipments. However, the balance shipments were not delivered by the defendant due to stoppage of payment of cheques. This fact is further confirmed by various emails exchanged between CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 25/36 the parties and filed on record by plaintiff himself,which is Ex.PW1/8 (Colly).
66. Further, the communication exchanged between the parties vide Ex.PW1/8 (Colly) shows that defendant was demanding payment for 737 deliveries made by defendant whereas plaintiff was insisting on completing the remaining pending deliveries for making further payment.
67.Eventually, vide mail dated 23.05.2019, defendant had acknowledged the receipt of post dated cheques worth Rs.11,00,000/-and receipt of Rs.12,50,000/- from the plaintiff by 27.05.2019 and thereafter, defendant assured to make the remaining deliveries by 31.05.2019. However, further communication shows that due to non providing of fresh e-way bills by plaintiff, remaining consignments could not be delivered by defendant and eventually, the post dated cheques were got stopped. Thereafter, talks were again initiated for reconciling the issue of payment and balance deliveries of consignments and thereafter, defendant had sought confirmation regarding outstanding liability before proceeding with the delivery. However, plaintiff did not provide any confirmation regarding the outstanding liability and eventually, terminated the contract vide email dated 10.07.2019 Ex.PW1/10 and cheques Ex.PW1/3 to Ex.PW1/7 were demanded back from the defendant.
68.From the aforesaid evidence, which has come on record, it can be safely concluded that cheques Ex.PW1/3 to Ex.PW1/7 were issued in discharge of legal liability by CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 26/36 plaintiff to the defendant. The reason for the same is that as per the reconciliation sheet shared by plaintiff with the defendant Ex.DW1/70, there was an outstanding of Rs.24,30,668/- as on 07.05.2019. Further, it is an admitted case that thereafter payment of Rs.8,22,993/- was paid by plaintiff to the defendant between the period from 30.05.2019 till 04.07.2019. However, even after adjusting the payment of Rs.8,22,993/-, there was an outstanding liability of Rs.16,07,675/- as on 04.07.2019. Therefore, on the date of issuance of first cheque i.e. 22.06.2019, there was an outstanding liability of around Rs.24,30,668/- against the plaintiff. Further, remaining cheques are dated 15.07.2019, 19.07.2019, 07.08.2019 and 18.08.2019 respectively and on the said dates, there was an outstanding liability of around Rs.16,07,675/-. It is a settled principle of law that if on the date of issuance of cheques, there is an existing liability, then the cheques are issued for liability and if the liability is to accrue in future, then the cheques issued are for the purpose of security. Therefore, the evidence, which has come on record, shows that cheques Ex.PW1/3 to Ex.PW1/7, were issued to discharge liability.
69. Even assuming that email Ex.DW1/70 was never issued by plaintiff providing the reconciliation sheet, then also plaintiff has failed to prove that there was no liability on the date of issuance of cheques Ex.PW1/3 to Ex.PW1/7. The onus was upon the plaintiff to have shown that cheques were not issued for any liability but were issued as security for CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 27/36 ensuring timely delivery of future consignments. In order to discharge the onus, plaintiff was required to prove that with regard to completed deliveries, he had made 100% payment to the defendant as per the terms of the agreement. As per the plaintiff's own document i.e. email dated 22.05.2019 (part of Ex.PW1/8) at page no.51, defendant had delivered 737 shipments out of 801 shipments and plaintiff has further admitted of having received confirmation regarding 30 deliveries as per email dated 25.06.2019 [part of Ex.DW1/74 (Colly)] at page no.54. Therefore, the admission made by plaintiff with regard to completed deliveries by defendant is 737 plus 30 i.e. 767. Therefore, the onus was upon the plaintiff to have proved that with regard to these aforementioned 767 deliveries, he had made 100% payment to the defendant as per the terms of the agreement. However, plaintiff has not filed on record any statement of account or any acknowledgment from the defendant's side admitting that they had received the entire payment with regard to aforementioned 767 consignments. Therefore, plaintiff has failed to prove that cheques were not issued in discharge of any liability but were issued as security.
70.The Ld.counsel for plaintiff, during the course of arguments, has heavily relied upon email dated 23.05.2019 at page no.50 of Ex.PW1/8 (Colly) to show that cheques were issued as security with the understanding that the same would be encashed pursuant to deliveries undertaken by CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 28/36 defendant by 31.05.2019. The said contention deserves to be rejected as firstly, PW1 in his cross examination has duly admitted that as per the terms of the agreement between the parties, for every shipment, 20% advance payment was required to be made by plaintiff and the balance 80% on delivery. Plaintiff has admitted deliveries to 767 locations by the defendant. Therefore, as per the agreement, plaintiff was required to make 100% payment with regard to aforementioned 767 deliveries.
71. Secondly, as per the email communications between the parties, Ex.DW1/73(colly.), defendant was repeatedly asking for his payments with regard to delivered shipments but plaintiff was avoiding the same on the ground of non- reconciliation of accounts and plaintiff facing shortage of funds due to payment being held up from Trichy and Salem. However, the defence of paucity of funds was a false defence taken up by the plaintiff as DW2, who had produced the Bank statement of plaintiff Ex.DW-2/P1, proves that plaintiff was having more than sufficient fund in his account to discharge his outstanding liability towards defendant. Therefore, Ex.DW1/73(Colly) also proves that there was an admitted liability against the delivered consignments on the part of plaintiff and cheques were issued in discharge of the same.
72. Thirdly, there was no reason for the plaintiff to have issued the cheques as security because as per the terms of agreement, plaintiff was only required to make 20% CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 29/36 advance payment with regard to each consignment and thereafter, defendant was required to fulfill his promise of delivering the consignments and claim balance payment from the plaintiff. Therefore, there was no requirement of issuance of cheques as security to ensure delivery by defendant. This fact further proves that cheques were issued in discharge of existing liability and not for security.
73. Lastly, the evidence which has come on record shows that it was the plaintiff, who had committed the breach of the agreement by not making 100% payment against delivered consignments to the defendant. Due to non-payment by plaintiff, future deliveries were being held up on the defendant's part and accordingly, both parties had come to an understanding vide Ex.PW-1/8(colly.) whereby plaintiff was required to handover the cheques of around Rs.11,00,000/- and pay balance amount of Rs.12,50,000/- by 27.05.2019 and thereafter, defendant was required to make pending deliveries by 31.05.2019. However, record reflects that all the cheques handed over by plaintiff to defendant were dishonoured on presentation and even out of the balance amount of Rs.12,50,000/-, only Rs.8,22,993/- was paid by plaintiff. Therefore, plaintiff had again committed breach of the terms of the agreement due to which deliveries got delayed. However, still defendant had delivered 30 plus 15-16 consignments to desired locations and delay in delivering the consignment was on account of plaintiff not providing the fresh e-way bills on time as made CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 30/36 out from Ex.PW1/8 (Colly). Therefore, the cheques in question were issued with regard to existing liability with the understanding that same would be encashed on due dates subject to defendant providing delivery date with regard to pending 64 consignments and balance payment shall be cleared post 15 days of the delivery. However, plaintiff did not fulfill its promise as cheques were dishonoured due to "payment stopped" instructions issued by plaintiff and even after delivery of further consignments to 45 locations, plaintiff did not make the balance payment. Even the plaintiff failed to honour its promise to make the balance payment of Rs.12,50,000/- by 27.05.2019. Therefore, once the plaintiff failed to honour his promise made to defendant, plaintiff could not insist defendant to perform his reciprocal promise of delivery of consignment, as per Section 51, 52 and 54 of Indian Contract Act, 1872.
74.The contention of Ld.counsel for plaintiff that there is a discrepancy in the amount due towards the plaintiff in the written statement and the documents filed by defendant and as to the number of deliveries, is required to be rejected, as plaintiff has to stand on his own legs and has to prove his case, by leading cogent and reliable evidence. The evidence, which has come on record shows that plaintiff himself admitted his liability to the tune of Rs.24,30,668/- as per Ex.DW1/70 (Colly) and failed to clear the same despite understanding between the parties that 100% payment is CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 31/36 required to be cleared against each consignment post delivery.
75.Further, the onus was upon the plaintiff to have shown that cheques were not issued in discharge of any liability but were issued as security to ensure future deliveries. Even the said onus has not been discharged by the plaintiff as no statement of account showing 100% payment against 767 admitted deliveries has been filed on record and even no record has been filed to show that 20% advance payment was also made with regard to remaining 64 deliveries. Further, it was never the case of the plaintiff either in the plaint or in his evidence that 100% payment against completed deliveries was required to be made only after balance 64 consignments were delivered by defendant. Therefore, plaintiff has miserably failed to discharge the onus put upon him that the cheques were not issued in discharge of any legal liability.
76.In the light of aforesaid discussion, plaintiff has failed to prove that he is entitled for a declaration that cheques Ex.PW1/3 to Ex.PW1/7 were not issued for any legal liability and consequently, defendant is directed to return the same to the plaintiff. Accordingly, both these issues are decided in favour of defendant and against the plaintiff.
77.Issue No.3 Whether plaintiff is entitled for a decree of recovery of Rs.50,00,000/- as damages / compensation, as prayed for? OPP CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 32/36 The onus to prove this issue was upon the plaintiff.
78.Plaintiff is claiming Rs.50,00,000/- as damages / compensation from the defendant. In the opinion of this court, plaintiff is not entitled for any damages / compensation as same are only payable if plaintiff had proved any breach of contract by the defendant. However, in the present case, as discussed hereinabove, defendant has fulfilled his promise of delivering the goods and it was the plaintiff, who had committed breach of terms by not making the payment against the delivered consignments. Therefore, plaintiff is not entitled for any damages.
79.Secondly, even assuming that it was the defendant, who had committed breach of contract by not delivering the consignment or by committing delay in delivery of consignment, then also plaintiff is not entitled for damages to the tune of Rs.50,00,000/- as plaintiff has failed to prove that due to non-delivery / delay in delivery, it has suffered loss to the tune of Rs.50,00,000/-.
80.In the present case, there was no written contract between the parties providing any pre-estimate of loss. Therefore, plaintiff was required to lead cogent and reliable evidence to show that due to breach of contract by defendant, he had suffered loss to the tune of Rs.50,00,000/-. However, no evidence has been led on record by PW1 in this regard. Therefore, plaintiff has failed to prove that due to breach of contract, it had suffered any damages. Accordingly, this CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 33/36 issue is decided in favour of defendant and against the plaintiff.
81.Issues No.4 and 5.
(4) Whether plaintiff is entitled for decree of Rs.77,96,663/- against the defendant, as prayed for? OPP (5) Whether plaintiff is entitled for any interest? If so, at what rate? OPP Both these issues are inter-connected, therefore, they are being taken up together for disposal.
82.The onus to prove these issues was upon the plaintiff.
83.As per the evidence of PW1, said amount is being claimed on the ground that due to non-delivery of goods by defendant, plaintiff had to re-manufacture the goods worth Rs.39,63,653/- and further, Indian Oil Corporation had also imposed penalty upon the plaintiff due to non-delivery / late delivery of the consignment. Accordingly, amount of Rs.51,63,353/- alongwith interest @18% per annum i.e. total amount of Rs.77,96,663/- was being claimed from the defendant. Defendant had denied that he was liable to pay the said amount and even he had given a suggestion to PW1 in his cross examination. Therefore, onus had shifted upon the plaintiff to prove the aforesaid claim from the defendant.
84.In this regard, PW1 has relied upon email Ex.PW1/11 (Colly). Email Ex.PW1/11 pertains to issuance of debit note and invoice dated 29.06.2019 to the defendant. The defendant had objected to the document Ex.PW1/11 (Colly) CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 34/36 regarding the mode of proof. Therefore, onus had shifted upon the plaintiff to have proved the invoice dated 29.06.2019 worth Rs.39,63,653/- and debit notes of Rs.10,00,000/- and Rs.2,00,000/- dated 31.05.2019 and 28.06.2019 respectively. The onus was upon the plaintiff, firstly, to have proved that they had to re-manufacture the goods i.e. LED lights worth Rs.39,63,653/-and had transported the same to various locations, which were left undelivered by the defendant. The transportation of the goods as per tax invoice dated 29.06.2019 could have been proved by examining any transporter and also by way of e- way bill or by proving any acknowledgment or receipt of goods by the consignee. However, plaintiff has not led any evidence on record to prove the transportation of the goods as mentioned in the aforesaid invoice nor has filed on record any e-way bill to show their transportation to various locations, which were left undelivered by defendant nor there is any acknowledgment or receipt of goods by any of the consignee at different locations. Therefore, delivery of LED lights at different locations worth Rs.39,63,653/- by plaintiff has not been proved on record.
85.Secondly, plaintiff has failed to prove on record that any penalty was imposed upon it by the Indian Oil Corporation due to late delivery / non-delivery of the LED lights. No document issued by the Indian Oil Corporation imposing penalty upon plaintiff has been filed on record. Even no document has been filed on record to show that said penalty CS (COMM)/372/2022 M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 35/36 amount has been paid by plaintiff to the Indian Oil Corporation. Therefore, even the said fact has not been proved on record by the plaintiff. Therefore, plaintiff has failed to prove that it is entitled to recover Rs.77,96,663/- with interest from the defendant. Accordingly, both these issues are decided in favour of defendant and against the plaintiff.
86.Issue No. 5Relief.
In the light of my finding given to issues no.1,2,3,4 and 5, the suit of plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly.
87.In terms of Order XX Rule 1 of CPC, as applicable to the Commercial Courts Act, 2015, a copy of the judgment be supplied to the parties through electronic mode as provided in the case information sheet / memo of parties. After completion of formalities, file be consigned to record room.
Announced in the open court Digitally signed
Dated: 04.07.2025 VIKAS by VIKAS
DHULL
DHULL 2025.07.04
Date:
15:42:25 +0530
(Vikas Dhull)
District Judge (Commercial Court)-02
South-West, Dwarka Courts
New Delhi
CS (COMM)/372/2022
M/s.Servotech Renewable Power Systems Ltd. Vs. M/s.Genex Logisolutions Private Limited 36/36