Delhi District Court
Sp Safe Control System Pvt Ltd vs Auto Pass India on 28 May, 2024
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02, PATIALA
HOUSE COURTS, NEW DELHI
CNR NO. : DLND01-002291-2021
CS (COMM.) 106/2021
IN THE MATTER OF:-
SP SAFE CONTROL SYSTEM PVT LTD.
Through Its Authorized Representative
Sh. Sheeraj Habib
Mobile No.: 9910005196
e-mail id : [email protected]
Address:
D-158, Jaitpur Extn. Part-II,
Near Ramapalli Public School,
Badarpur Border,
Delhi-110044
......PLAINTIFF
VERSUS
1. M/s AUTO PASS INDIA
Through Its Partner/ General Manager
Sh. Harsvardhan
Ph. No.: 91-11-23413342 & 23416515
Fax No.: 91-11-23418651
e-mail : [email protected]
2. Sh. Harsvardhan
Partner/ General Manager of
M/s Auto Pass India
Mobile No.: 8010879308
email id : [email protected]
Address:
M-97, Connaught Circus,
Delhi-110001
.......DEFENDANTS
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 1 of 43
-AND-
CNR NO. : DLND010068392021
COUNTER CLAIM/33/2021
IN THE MATTER OF:-
AUTO PASS INDIA
(through Its Authorized Signatory)
M-97, Connaught Place,
New Delhi-110001
.......COUNTER CLAIMANT
VERSUS
SP SAFE CONTROL SYSTEM PVT LTD.
D-158, Jaitpur Extn. Part-II,
Near Ramapalli Public School,
Badarpur Border,
Delhi-110044
......NON-COUNTER CLAIMANT
Date of Institution of Main Suit i.e. CS : 12-03-2021
(COMM.)/106/2021
Date of Institution of Counter Claim i.e. : 09-10-2021
COUNTER CLAIM/33/2021
Date of reserving Judgment : 13-05-2024
Date of pronouncement of Judgment : 28-05-2024
JUDGMENT
1. Vide this common judgment, I shall decide Commercial Civil Suit i.e. CS (COMM)/106/2021 filed by plaintiff namely SP Safe Control Systems Pvt. Ltd. (hereinafter referred to as 'main suit' for the sake of convenience) as well as Commercial Civil Suit i.e. Counter Claim/33/2021 filed by M/s Auto Pass India (hereinafter CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 2 of 43 referred to as 'counter claim' for the sake of convenience), as both the matters are interconnected and common evidence has been led by both the sides.
BRIEF FACTS OF THE CASES:
2. Firstly, I shall discuss the facts in brief. In the main suit filed by plaintiff company namely SP Safe Control Systems Pvt. Ltd., it is seeking recovery of Rs.5,48,772/- along with pendent lite and future interest against the defendant namely M/s Autopass India on the averments that the plaintiff is a reputed private limited company incorporated under the Companies Act, 1956 and is engaged in the business of supply and installation of CCTV security equipments and other security system including the boom barrier work. Further, the defendant no.1, which is stated to be a partnership firm and defendant no.2, who is stated to be one of its partners/ General Manager, are involved in the business of selling and installing of UVSS Cameras, UVSS Basic Software, UVSS ANPR Foreign object detection software and other security system and are doing their business in the name and style of M/s Auto Pass India.
3. It is the case of the plaintiff that the plaintiff had placed a Work Order bearing SCS/EUVSS/19-20/106 dated 29-11-2019 upon the defendants for installation of UVSS Camera, UVSS Basic Software and UVSS ALPR and Foreign object detection software for its customer i.e. ONGC Ltd., Nelson Mandela Marg, Vasant Kunj II, New CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 3 of 43 Delhi and paid 50% of the total consideration amount i.e. Rs.3,83,500/- to the defendants on 04-12-2019. It is alleged that after taking the above said amount in advance, the defendants did not fulfill the terms of the said Work Order. It is stated that though employee of the defendants visited the above said site on 03-01-2020 and 10-01-2020 for installation of the camera but the same could not be installed as the camera and other items were defective and on the same day, the defendants' employee removed the camera from the site and took back the above said items. It is also alleged that despite repeated requests and reminders, the defendants failed to fulfill their commitment. It is also alleged that due to non-installation of the camera and other devices, the plaintiff's customer i.e. ONGC had imposed a penalty of Rs.1 lakh upon the plaintiff, which was paid by the plaintiff.
4. Legal Notice dated 05-3-2020 was issued to the defendants but to no avail.
5. It is claimed that as per the Ledger Account maintained by the plaintiff, there is an outstanding balance of Rs.4,83,500/-. Further, the plaintiff has also claimed Rs.65,272/- towards interest @ 18% per annum on the aforesaid amount w.e.f. 05-3-2020 to 05-12-2020 and thus, it has claimed a total sum of Rs.5,48,772/- [Rs.4,83,500/- towards principal outstanding + Rs.65,272/- towards interest] along with pendente lite and future interest from the date of filing of the suit till realization of the amount.
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 4 of 436. On being served with the summons of the suit, the defendant firm put appearance through counsel and contested the suit by filing written statement. In the written statement, the defendant has raised preliminary objections and submissions, inter alia, that suit is bad for misjoinder of necessary parties as the plaintiff has impleaded defendant no.2 only because defendant no.2 works with defendant no.1 and in fact, the plaintiff has failed to specify any cause of action or relief being sought against defendant no.2. It is stated that apart from suppressing material and relevant facts and documents in the plaint, the plaintiff has made unsubstantiated and false allegations in the plaint, which do not have any foundation either in facts or in law. It is claimed that the facts as pleaded in the plaint are incorrect. As per the said defendant, the correct facts are as under:-
(i.) That the Plaintiff had Under Vehicle Scanning System ("UVSS") (provided by some other vendor namely Vehant) installed at the site of its customer ONGC Ltd., at Nelson Mandela Marg, Vasant Kunj II, New Delhi-110070 ("said site"). As the UVSS System was not working, the client of the Plaintiff, i.e. ONGC Ltd., had requested the Plaintiff to rectify the UVSS system. Accordingly, the Plaintiff contacted Defendant No. 1 in relation to the automatic UVSS system of Defendant No. 1.CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 5 of 43
(ii.) That said old UVSS system of Vehant at the said site comprised of UVSS Software, UVSS Controller, UVSS Camera, IP rated Waterproof Housing for UVSS Camera, UPS, Base Plate and mechanical accessories such as underground pit, air blower, air conditioner and water sump pump, LED light bars. The UVSS system also requires Automatic License Plate Recognition (ALPR) Software, ALPR Camera, Driver Image Camera, IR Illuminators and computers.
(iii.) The principal functioning of the UVSS is to capture and record underbelly photographs of passing vehicles and store the same in a data base and the principal function of an ALPR System is to record the license plate of the same vehicle with drivers' image. The details of license plate recording, have to be converted from digital mode to alpha numeric for posterity and making the data intelligent.
(iv.) That the Plaintiff was aware that some of the components of the previously installed UVSS system were not working properly, however, the Plaintiff issued a Work Order No. SCS/EUVSS/19- 20/106 dated 29.11.2019 (which was received by Defendant No. 1 vide email dated 02.12.2019) in favour of Defendant No. 1 only for supply, installation, testing and commissioning of CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 6 of 43
(a) UVSS software (the ALPR feature which is a part of the UVSS software of Defendant No. 1) and (b) one UVSS area scan camera for the said site ("said products") ("said Work Order"). The said Work Order was for a total amount of Rs.
6,50,000/- (Rupees Six Lacs and Fifty Thousand Only) (plus taxes). As per the said Work Order, the Plaintiff was to pay 50% amount as advance and the balance 50% on the completion of work.
(v.) All the other components of the UVSS such as the computers, electronic controllers, pumps, lights, air conditioner, UPS, base plate and mechanical accessories etc., and the waterproof camera housing (in which the UVSS camera was to be installed) were all outside the scope of the said Work Order. The Plaintiff had also forwarded details of the said Work Order to its client, ONGC.
(vi.) The said Work Order was accepted by the Defendant No.1 vide its email dated 02.12.2019 and the Plaintiff was informed that the work in terms of the said Work will commence within 3 to 5 days after receipt of the advance. It is stated that at the time of acceptance of the said Work Order, the Plaintiff was informed that Defendant No.1 does not have a new UVSS camera which would take 10-15 days and, in the interim period, a CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 7 of 43 back-up camera would be installed by Defendant No.1 which would be replaced on receipt of new UVSS camera.
(vii.) On 04.12.2019, an amount of Rs.3,25,000/-
(Rupees Three Lacs and Twenty Five Thousand Only) was paid by the Plaintiff to Defendant No. 1 as the amount of 50% advance. Accordingly, Defendant No. 1 commenced the work and the back-up UVSS camera was installed inside the waterproof housing (belonging to the Plaintiff) on 09.12.2019. On the same date, Defendant No. 1 provided and installed its UVSS Software with ALPR feature and other functions embedded therein at the said site. The said products were duly installed and integrated with the old electronic controllers of the Plaintiff and was made operational on 10.12.2019. It is stated that in terms of the said Work Order, the Defendant No. 1 was to only supply, install, test and commission the UVSS camera (in the waterproof housing of the Plaintiff) and the UVSS Software integrated with the electronic controllers of the Plaintiff. Defendant No.1 was not to supply any other component of the UVSS system. The Plaintiff had provided Defendant No.1 with underground pit and the camera housing unit, where the Defendant No.1 installed its UVSS camera.
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 8 of 43(viii.) It is stated that after supply, installation, testing and commission of the said products on 10.12.2019, the representative of the Plaintiff namely Mr. Zahid Akhtar had sent WhatsApp messages to Defendant No.2 that the said products installed by Defendant No.1, were working properly and had also shared some images of the underbelly of cars scanned by the UVSS camera.
(ix.) That upon receipt of new UVSS camera,
Defendant No.1 installed, tested and
commissioned the new UVSS camera at the said site on 03.01.2020 replacing the back-up UVSS camera of Defendant No. 1 installed on 09.12.2019. After the delivery and installation of the UVSS camera on 03.01.2020, the representative of the Plaintiff signed the delivery challan. In fact, during a telephonic conversation on 03.01.2020, the representative of ONGC (the client of the Plaintiff) had acknowledged to Defendant No. 2 that the UVSS camera supplied and installed by Defendant No. 1 on 03.01.2020 was working to their satisfaction.
(x.) It is stated that in spite of the fact that some of the components of the previous UVSS system of the Plaintiff including UVSS housing unit, sump pump to drain out the water from UVSS pit, air conditioner for cooling of UVSS camera housing, CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 9 of 43 bowler for cleaning UVSS unit were not working satisfactorily (which led to the previous camera being damaged), the Plaintiff only placed an order for the said products (without the water-proof housing) on Defendant No. 1. At the time of installation of UVSS camera, the representative of Defendant No. 1 had informed representative of the Plaintiff that any seepage of water into the camera housing unit will damage the camera and would not be the responsibility of Defendant No. 1.
(xi.) After satisfactory installation and functioning of the said products, the Defendant No. 1 by various emails requested the Plaintiff to pay the balance amount. However, the Plaintiff failed to pay the same in spite of various written as well as oral reminders of Defendant No. 2 including by WhatsApp messages and emails.
(xii.) It is stated that the UVSS camera installed by Defendant No.1 on 09.12.2019 (till the UVSS camera was replaced on 03.01.2020) and the UVSS camera installed on 03.01.2020 were working satisfactorily, which is clear from the various car-underbelly scanned images captured at the said site along with date and time of the transaction and front and side image of vehicle.
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 10 of 43(xiii.) The UVSS camera installed by Defendant No. 1 on 03.01.2020 was also working satisfactorily till the morning of 08.01.2020. It is stated that on the morning of 08.01.2020, there was heavy rainfall in Delhi, which flooded the UVSS pit, consequent to which water entered the camera housing unit damaging the new UVSS camera. Defendant No. I has got images from the UVSS system till 8:56 AM on 08.01.2020 (just prior to the heavy rainfall) which show that the UVSS camera was working properly. The images of the next transaction at 8:58 AM (2 minutes later) show water pixelated underbelly images due to water logging in the camera housing unit and the camera being submerged in water. It is pertinent to note that the ALPR feature (included in the UVSS software installed by Defendant No. 1) continued to store and convert the front license plate images of vehicles. It is stated that there was breach of water due to the faulty camera housing unit and the UVSS camera installed by Defendant No. 1 got damaged. Further, the sump pump (which was a part of the previous UVSS system of the Plaintiff) also failed to work and drain out the water from underground pit. Due to the faulty camera housing unit and the sump pump (both outside the scope of the said Work Order), the rainwater breached into the camera housing CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 11 of 43 thereby damaging and spoiling the UVSS camera. Defendant No. 1 has the underbelly images as well as short video clips of the relevant time (just prior to the heavy rain) showing that the UVSS camera was functioning properly, and it was due to the rain and consequent water logging in the camera housing unit that the camera got damaged. The allegations in the plaint that the UVSS camera supplied and installed by Defendant No. 1 was faulty, are false and have been made with malafide intention. The images of the morning of 08.01.2020 as well as the short video clips showing that the UVSS camera was functioning satisfactorily till the water logging of the camera housing unit have been filed along with the Written Statement.
(xiv.) Thus, it is claimed that the UVSS camera was functional when it was installed by Defendant No. 1 and it was damaged due to negligence and faulty components of the Plaintiff which is clear from the data available with the Defendant No. 1.
(xv.) It is alleged that on 20.01.2020, with malafide intention and in order to deprive Defendant No. 1 of its legitimate dues, the Plaintiff took a stand that Defendant No. 1 had not supplied any material. By email dated 20.01.2020, the Defendant No.2 had informed the Plaintiff that CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 12 of 43 Defendant No. I had supplied the said products and that the UVSS camera was functioning properly after installation and it was only due to the water logging that the camera got spoiled. Defendant No. 2 had also requested the Plaintiff to clear its outstanding dues. Subsequently, the Plaintiff took a stand that due to non-performance of the UVSS camera, the other materials were not supplied by the Defendant No. 1. It is stated that the only other material to be supplied to the Plaintiff (other than the UVSS camera) was the UVSS software, which was installed on the computer of the Plaintiff at the time of installation of the UVSS camera. It is stated that without installation of the UVSS software, it would not have been possible for the UVSS camera to capture and store the car-underbelly images and the number plates for the period from 03.01.2020 to 08.01.2020, which images the Defendants have filed along with their Written Statement. By email dated 27.01.2020, the Defendant No. 2 again informed the Plaintiff that the UVSS camera and software were working satisfactorily till the rain on 08.01.2020 and that the Defendant No. 1 was willing to provide evidence in this regard.
(xvi.) It is stated that in fact, on 27.01.2020, the Defendant No.2 spoke to one Mr. Rakesh Pandey, representative of ONGC (where the said products CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 13 of 43 of the Defendant No. 1 were installed), who informed Defendant No. 2 that the said products installed by Defendant No. I, were working satisfactorily and images of the underbelly were captured and stored from 03.01.2020 till 08.01.2020 when the said camera got spoiled by rain. Mr. Pandey also mentioned that there were some issues being faced with the other hardware of the Plaintiff.
(xvii.) It is also stated that the Defendant No. 1 will be filing a counter-claim for recovery of its legitimate dues i.e. the balance 50% amounting to Rs. 3,25,000/- (plus taxes) along with interest from the Plaintiff.
7. In 'para-wise reply on merits', the defendant no.1 has raised more or less similar contentions as raised in preliminary objections while denying the averments of the corresponding paras of the plaint.
8. From the pleadings of the parties, the following issues were framed on 02-06-2023:-
(i.) Whether the plaintiff is entitled to a decree of amount of Rs.5,48,772/- alongwith interest, as prayed for? OPP.
(ii.) Whether the suit of the plaintiff is without any cause of the action? OPD CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 14 of 43 (iii.) Whether the defendant had completed the work(s) under the Work Order dated 29-11-2019? OPD (iv.) Relief.
9. In the counter-claim filed by defendant no.1 of the main suit, they have made similar averments as appearing in their written statement filed in the main suit. Hence, the same are not being repeated herein for the sake of brevity. Based on those averments, the counter claimant has prayed for a decree for a sum of Rs.3,25,000/- along with pendente lite and future interest @ 18% per annum from the date of filing of counter claim till its realization.
10. Non-Counter Claimant/Plaintiff company has denied the claim raised by the counter claimant/defendant no.1. It has taken similar stand as raised by it by way of plaint filed in the main suit. Same are also not being repeated herein for the sake of brevity. It has prayed for dismissal of the counter claim.
11. The Counter Claimant has filed replication to the written statement filed by Non Counter Claimant, thereby denying the contents of the written statement and reiterating the averments made in the counter claim.
12. From the pleadings of the parties, the following issues were framed in the counter claim on 02-6-20223:-
(i.) Whether the counter claimant is entitled to decree of recovery of Rs.3,25,000/- along with interest, CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 15 of 43 as claimed in the present counter claim ? Onus to Counter Claimant.
(ii.) Relief.
13. Before proceeding further, it may be noted that both the sides had agreed that common evidence shall be led by the respective side in the main suit as well as in the counter claim, which shall be read for the purposes of suit as well as that of the counter claim. Accordingly, the main suit as well as the counter claim were consolidated, vide order dated 09-2-2024 passed by this Court for the purpose of recording of common evidence to be led by both the sides and the main suit was directed to be treated as the leading case.
14. In order to prove its case, the plaintiff/Non Counter Claimant has examined only one witness i.e. it's A.R. namely Mr. Mohammad Ashraf Jawed, as PW-1.
15. PW-1 led his examination-in-chief by way of affidavit (Ex.PW1/A) and deposed in terms of the averments made in the plaint. He relied upon the following documents:-
Srl. Document/Particulars Exhibit(s) No
1. Copy of Resolution dated Ex. PW1/1 25.11.2021.
2. Copy of work order dated Mark A (Said document 29.11.2019. earlier mentioned as CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 16 of 43 Srl. Document/Particulars Exhibit(s) No Ex.PW1/2 in Ex.
PW1/A but was de-exhibited as original of same was not produced)
3. Delivery Challan of the Mark B (Said document defendant dated 03.01.2020. earlier mentioned as Ex.PW1/3 in Ex.
PW1/A but was was de-exhibited as original of same was not produced)
4. Delivery Challan of the Ex. PW1/4 defendant dated 10.01.2020.
5. Copy of Bill showing Mark C (Said document deduction from the payment of earlier mentioned as the plaintiff. Ex.PW1/5 in Ex.
PW1/A but was de-exhibited as original of same was not produced)
6. Photocopy of legal notice Ex. PW1/6 and Ex.
dated 05.03.2020 along with PW1/7
postal receipt.
7. Non Starter Report. Ex. PW1/8
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 17 of 43
Srl. Document/Particulars Exhibit(s)
No
8. Ledger Account Ex. PW1/9
16. PW1 has been cross-examined at length. His cross-
examination shall be discussed in subsequent paras of this judgment while giving issue-wise findings. PE/ Non-Counter Claimant's evidence was closed on 09-02-2024.
17. In its defence, the defendant no.1/Counter Claimant has also examined only one witness i.e. Sh. Harshvardhan Angar i.e. it's AR as DW1.
18. DW-1 led his examination-in-chief by way of affidavit (Ex.DW1/A) and deposed in terms of the averments made in the written statement/ counter claim. He relied upon the following documents:-
Srl.no Document/Particulars Exhibit(s)
1. Board Resolution dated Ex. DW1/1 21.07.2021.
2. Copy of e-mail dated 15.01.2020. Ex. DW1/ 2
3. Copy of e-mail dated 02.12.2019. Ex. DW1/ 3
4. Copy of e-mail dated 03.12.2019 at Ex. DW1/ 4 11.14 am.
5. Copy of e-mail dated 03.12.2019 at Ex. DW1/ 5 11.21 am.
6. Copy of the messages sent by Mr. Ex. DW1/ 6 CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 18 of 43 Srl.no Document/Particulars Exhibit(s) Zahid Akhtar. (Colly)
7. Copy of e-mail dated 12.12.2019. Ex. DW1/ 7
8. Copies of images from the system Ex. DW1/ 8 of Autopass containing the time (Colly) stamp from 20.12.2019 to 31.12.2019.
9. Copies of photographs from Ex. DW1/ 9 03.01.2020 to 07.01.2020. (Colly)
10. Copies of photographs from Ex. DW1/ 10 08.01.2020. (Colly)
11. Copies of short video clips of the Ex. DW1/ 11 relevant time.
12. Copy of e-mail dated 22.01.2020. Ex. DW1/ 14
13. Copy of e-mail dated 22.01.2020. Ex. DW1/ 15
14. Copy of e-mail dated 27.01.2020. Ex. DW1/ 16
15. Copy of e-mail dated 31.01.2020. Ex. DW1/ 17
16. Copy of e-mail dated 01.02.2020. Ex. DW1/ 18
17. Declaration by way of affidavit Ex. DW1/ 19 under Order XI Rule 6 (3) CPC dated 23.07.2021 alongwith affidavit under Section 65-B of Evidence Act.
18. Declaration by way of affidavit Ex. DW1/20 under Order XI Rule 6 (3) CPC CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 19 of 43 Srl.no Document/Particulars Exhibit(s) dated 21.08.2021 alongwith affidavit under Section 65-B of Evidence Act.
19. Copy of delivery Challan dated Ex. DW1/21 03.01.2020.
19. DW-1 was also cross-examined at length and his cross-examination shall also be discussed while giving issue -wise findings in subsequent paras of this judgment.
20. On statement of AR of defendant no.1/counter claimant, the DE/Counter Claimant's evidence was closed on 20-4-2024.
21. I have already heard Sh. Masood Alam, Advocate on behalf of plaintiff/ non counter claimant and Ms. Anubha Goel, Advocate for defendant no.1 / counter claimant.
22. I have also gone through the material available on record including the pleadings of both the matters, evidence led by the parties, documents available on record.
23. My issue wise findings are as under:-
Main suit:
Issue no. (i) - Whether the plaintiff is entitled to a decree of amount of Rs.5,48,772/- along with interest, as prayed for? OPP.CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 20 of 43
Issue no. (ii) - Whether the suit of the plaintiff is without any cause of the action? OPD Issue no. (iii) - Whether the defendant had completed the work(s) under the Work Order dated 29-11-2019? OPD Counter Claim (i.) Whether the counter claimant is entitled to decree of recovery of Rs.3,25,000/- along with interest, as claimed in the present counter claim ? Onus on Counter Claimant.
24. I shall take up all the issues i.e. issue nos. (i), (ii) and
(iii) framed in the main suit as well as issue no. (i) framed in the counter claim, together as they all are interconnected. The onus to prove the aforesaid issue no.
(i) in the main suit was placed upon plaintiff/ non-counter claimant, whereas the onus to prove issue nos. (ii) and (iii) of main suit as well as issue no. (i) of counter claim was placed upon the defendant no.1/ counter claimant.
25. As already noted above, in order to discharge the aforesaid burden, the plaintiff/ non-counter claimant has examined only one witness i.e. PW-1, whose examination in chief has also been discussed hereinbefore. He was also cross-examined at length. In his cross-examination, the PW-1 stated that he was not aware in which mode the work order dated 29.11.2019, was sent to defendant no. 1. He stated that he was not personally involved in the said CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 21 of 43 work order. He further stated that one Mr. Zahid Akhtar used to communicate with the defendants in this regard. Mr. Zahid Akhtar is not part of the plaintiff anymore. He left the services of plaintiff in the year 2021. The defendant no.1 had supplied a camera to the plaintiff, which got spoiled after a few days. Defendant no.1 took the camera back vide receipt. The use of the camera installed by the defendant was to view the public and for the safety of the site. Plaintiff had only placed the order for the said camera to the defendant. He was not aware as to how the said camera got spoiled. He voluntarily stated that same may be because of the rain. The said work order was for an amount of Rs.7,48,000/-. He stated that he had not brought any proof for the payment of Rs.58,500/- which was allegedly paid in cash by the plaintiff to the defendant. He stated that the plaintiff company may have the document of the same. The said document had not been filed on record of the present case. He stated that it may be available with the Accountant. The defendant did not complete any of the works mentioned in the said Order.
26. He further stated in his cross-examination that he was not aware if the defendant no.1 had informed the plaintiff that it did not have a new camera and same would be available after 10-15 days or that defendant no.1 had informed the plaintiff that during the interim period, a backup camera of the defendant would be installed and would be replaced by a new camera on the receipt of the same or about the date when the said camera was installed.
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 22 of 4327. PW-1 further stated in his cross-examination that the unit where the camera was installed, belonged to ONGC and the defendant only supplied the camera. The camera was working when it was installed by the defendant and stopped working after some days. He was not aware after how many days, it was so stopped. He admitted that Mr. Zahid Akhtar had sent photographs of the images from the camera to defendant no. 2 on 10.12.2019. He was not aware if the photographs filed along with the written statement, which were shown to him on the date of examination and were accordingly exhibited as Ex. PW1/D1 (Colly) (running into 7 pages), were taken from the said camera, since he sits in the purchase office and not at the project site. After looking at the said photographs, he could not tell whether the camera was working or not. He stated that the persons at the site would be in position to say. He was not aware whose signature is appearing at point A on Ex. PW1/3 (sic) [It should be Mark B as in evidence, this document i.e. Delivery Challan of the defendant dated 03-1-2020, which was exhibited in affidavit as Ex.PW-1/3, was de-exhibited and was marked as Mark B. However, it is relevant here to mention that this document was later on proved by DW1 as Ex.PW1/21].
28. PW-1 further stated in his cross-examination that the delivery challan was signed after installation of the camera. He was not aware that Mr. Pandey (Representative of ONGC) had informed defendant no.2 on 03.01.2020 that the camera was working to their satisfaction. He CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 23 of 43 replied that he has deposed that the camera was defective during his chief examination on the basis that it had stopped working after about a week. After seeing the photographs at page nos. 23, 31 and 33, filed along with written statement of the defendant, PW1 stated that the dates of the said photographs were 20.12.2019, 03.01.2020 and 04.01.2020.
29. PW-1 further stated in his cross-examination that he was not aware when it rained at the site or that the camera was submerged in the Camera Housing Unit or that if the sump pump was not working properly as he was not at the site. He was also not aware when the plaintiff informed the defendant that the camera got spoiled or that who removed the camera from the Camera Housing Unit. He was also not aware that the Camera Housing Unit is waterproof. He denied that the defendant no.1 after installation and commissioning of the camera, completed the work in terms of the said work order Ex.PW1/2.
30. In his further cross-examination, PW-1 has stated that after the camera got spoiled, the defendant did not install the camera again and ONGC raised a debit against the plaintiff. He admitted that the defendant no.1 was to be paid the balance amount after completion of the work. He was not aware that after the installation, on 03.01.2020, the defendant no. 2 had requested Mr. Zahid Akhtar for the payment of the balance amount. He was not aware of the e-mail dated 21.01.2020, which was shown to him and CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 24 of 43 then was exhibited as Ex. PW1/D2. He denied the suggestion that the product installed by defendant no. 1 was working satisfactory or that the images of the underbelly were captured and stored from 03.01.2020 to 08.01.2020 or that the Camera got spoiled due to water logging caused due to heavy rain on 08.01.2020. He was not aware that the representative of defendant no. 1 had visited the site after the camera got spoiled. He denied that the camera got spoiled due to negligence and faulty components of the plaintiff. He also denied that the present suit is false or that the counter claim filed by the defendant is correct or that the plaintiff/non counter claimant is liable to pay the amount under the counter claim.
31. As already noted above, the defendant/counter claimant has examined only one witness i.e. DW1, whose evidence in chief has already been discussed hereinbefore.
32. DW-1 was cross-examined at length. In his cross-examination, he stated that Defendant no.1 had supplied UVSS camera to the plaintiff on 8 th or 9th of December, 2019, however, no bill was raised against the purchase order given by the plaintiff. But he voluntarily stated that delivery challan was accepted by the plaintiff. He further stated that the defendants never received back the said UVSS camera from the plaintiff company and voluntarily stated that after the rain, it was the plaintiff company, which had sent said UVSS camera to the defendants in their office for the purpose of checking on CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 25 of 43 10/11.01.2020 as the said camera was faulty. He denied the suggestion that the defendants did not provide any UVSS camera after 10/11.01.2020. He voluntarily stated that the defendants had returned back the same UVSS camera in the same faulty condition to the plaintiff after 5-6 days of 10/11.01.2020. He stated that the plaintiff did not issue any acknowledgment in that regard and voluntarily stated that it was handed over at the site. He stated that the defendants are not manufacturer of such UVSS camera and only deal in them. He stated that such UVSS camera carry standard warranty of one year, however, voluntarily stated that there is no warranty in respect of such camera being affected due to water logging or e-surg. The defendants did not deposit any GST component with the GST Department in respect of the advance payment received by bank from the plaintiff. He denied the suggestion that the defendants did not file any suit for claiming their remaining payment from the plaintiff till the filing of the present suit as the defendants had supplied faulty UVSS camera to the plaintiff or that the defendants never returned back faulty UVSS camera to the plaintiff. He admitted that no reply of Legal Notice dated 05.03.2020 was sent by defendants to the plaintiff.
33. Before proceeding further, it may be noted that the defendant has filed an affidavit concerning admission/ denial of documents of the plaintiff, thereby admitting Copy of Work Order dated 29-11-2019, Delivery Challan of the Defendant and the Delivery Challan of the plaintiff CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 26 of 43 dated 10-1-2020. They have also admitted receipt of legal notice, however, denied it contents.
34. The plaintiff has also filed affidavit concerning admission/ denial of documents of the defendant no.1/counter claimant, thereby admitting e-mails dated 15-1-2020, 02-12-2019, 03-13-2019 at 11:14 a.m., 03-12-2019 at 11:21 a.m., 12-12-2019, 20-01-2020, 22-01-2020 and 31-01-2020. The plaintiff has also admitted e-mails dated 21-01-2020, 22-01-2020, 27-01-2020, and 01-02-2020 but denied it contents.
35. Pertinently, the plaintiff has set up its case in the main suit as well as in its reply/ written statement filed in the counter claim that the defendant/ counter claimant did not fulfill the terms of the Work Order in the sense that despite visit of its employee at the site on 03-01-2020 and 10-01-2020, UVSS Camera and other items could not be installed as same were defective and employee of defendant removed such camera from the site and took back those items. However, the evidence, oral as well as documentary, led by the parties during the course of trial, would demonstrate and establish to the contrary, for the reasons to be noted in subsequent paras of the judgment.
36. As per Work Order dated 29-11-2019 (Mark A), which is in tabulated format and is otherwise an admitted document from the side of the defendant/counter claimant, it is mentioned against column Work- 'supply, installation, testing & commissioning of UVSS Software and Area CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 27 of 43 Scan Camera'. The total order value is shown as Rs.7,67,000/- and as per payment terms, 50% advance along with PO & 50% immediate after successful handover to ONGC Infocom Engineer, was to be made. The time schedule was from start date 02-12-2019 to completion date 06-12-2019. Same also provides for Scope of Work viz. 1. SITC of UVSS Software, 2. SITC of ALPR Software, 3. SITC of Foreign Object Detection Software along with comparison facility from live image and saved image, 4. SITC of UVSS main camera with suitable lens and 5. Integrate these all software along with the existing vehant UVSS hardware.
37. Thus, it is quite evident from the description of work, as also the scope of work as mentioned in the above referred Work Order that the defendants, more particularly, the defendant no.1, was required to supply one UVSS main Camera with suitable lens and UVSS Software, after which same were supposed to be integrated with SITC of UVSS Software, SITC of ALPR Software, SITC of Foreign Object Detection Software along with comparison facility from live image and saved image along with the existing vehant UVSS hardware already installed at the site in question. Further, it was also the duty of the defendants to carry out the relevant testing and commissioning of UVSS Software and area scan camera.
38. Even during the course of arguments, Ld. Counsels of both the sides agreed to the aforesaid proposition in the light of CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 28 of 43 work and scope of work found mentioned in the Work Order.
39. The Delivery Challan dated 03-1-2020, which is also an admitted document, and is marked in the evidence of PW-1 as Mark-B and exhibited in the evidence of DW-1 as Ex.DW1/21, would show that the defendants had provided two items i.e. 1. UVSS Camera and 2. UVSS Lens with remark "Materials send to your site at ONGC Ltd., 5, Nelson Mandela Marg, Vasant Kunj-II, New Delhi-110070 against W.O. No. SCS/UVSS/19-20/106 dated 29/11/2019". It also bears signature and date as a token of acknowledgment/ receipt of the said items by the person apparently belonging to the plaintiff.
40. It may be noted that in terms of the Work Order, the defendants were under an obligation to supply new UVSS Camera with suitable lens to the plaintiff for the purpose of installation at the site. However, it is evident that initially, the defendant no.1/counter claimant had supplied backup UVSS Camera at the site on 09-12-2019. Nevertheless, it is established on record that both the parties were having consensus ad idem in this regard.
41. For the aforesaid purpose, the testimony of DW-1 is relevant. In Para no.6 of his chief examination by way of affidavit Ex.DW1/A, he has testified that at the time of acceptance of the Work Order, the plaintiff was informed that the defendant no.1 did not have new UVSS Camera and same would take 10-15 days and in the meantime, a CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 29 of 43 backup camera would be installed and same would be replaced on receipt of new UVSS Camera. However, said relevant portion of his chief-examination as also subsequent Para no.7 of his chief-examination by affidavit Ex.DW1/A, whereby he testified that after receipt of amount of Rs.3,25,000/- from plaintiff on 04-12-2019, the defendant no.1 commenced the work and installed the backup UVSS Camera within the pre-existing water proof housings belonging to the plaintiff on 09-12-2019 in the presence of 2-3 employees of the plaintiff, has gone unchallenged from the side of the plaintiff. Not only this, further chief-examination of DW1 that backup UVSS Camera along with UVSS Software with ALPR feature and other functions were embedded therein at the said site and were integrated with Old Electronic Controllers of the plaintiff and were made operational on 10-12-2019 in the presence of employees of the plaintiff, has also gone unchallenged from the side of the plaintiff.
42. Further, the DW1 has testified during his chief examination that it was only on 03-1-2020 when the defendant no.1 provided new UVSS Camera along with lens by replacing the backup UVSS camera, the delivery challan dated 03-1-2020(Ex.DW1/21) was prepared. In this backdrop, the relevant endorsement of 'Installed camera and lens are removed and taken by concern person of (Auto Pass India team) and installed above items in UVSS', was made by the employee of the plaintiff. Again, the plaintiff/non counter claimant preferred not to put any CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 30 of 43 question to the witness in that regard during cross- examination.
43. In other words, the plaintiff preferred not to cross-examine DW1 on the aforesaid aspects, meaning thereby that said portions of the testimony of DW1 were accepted as true and correct by the plaintiff/non-counter claimant. Same would clearly establish that the defendant no.1 previously installed, tested and commissioned backup UVSS Camera on 09-12-2019 and subsequent thereto, it replaced the said backup UVSS Camera with new UVSS camera with lens and not only installed, tested and commissioned the same at the site but also integrated them with Electronic Controllers of the plaintiff, as also installed UVSS Software on the computer of the plaintiff, as per the scope of work order. Hence, it would clearly demolish the case set up by the plaintiff in the main suit, as also the defence set up by it in the counter claim that such camera along with lens were never installed at the site.
44. Although, the plaintiff has alleged in the main suit that it had paid Rs.3,25,000/- through RTGS and Rs.58,500/- in cash to defendant no.1, towards 50% of sale consideration amount on 04-12-2019 but the defendant no.1 has disputed the receipt of Rs.58,500/- in cash. Again, the plaintiff has failed to establish during trial that Rs.58,500/- was in fact paid in cash by it to defendant no.1. No doubt, the PW1 has testified to this effect in Para no.5 of his chief examination by way of affidavit Ex.PW1/A, but, during his CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 31 of 43 cross-examination, he was specifically asked about any documentary proof regarding payment of Rs.58,500/- in cash to the defendant, to which, he replied in negative. It is trite law that the burden to prove factum of making any payment to the opposite side, lies upon the party which alleges it. Hence, it was for the plaintiff to establish the factum of payment of Rs.58,500/- to defendant no. 1 by leading cogent evidence in this regard. Mere bald testimony of PW1 in this regard, would not be sufficient to establish that such payment was in fact made by plaintiff to defendant no.1, unless and until there would have been an admission of receipt of such amount by defendant no.1, which is not the case herein.
45. Moreover, it is beyond comprehension as to why the plaintiff would have paid Rs.58,500/- in cash to defendant no.1 and that too on the same day i.e. 04-12-2019 when another sum of Rs.3,25,000/- was also paid by plaintiff to defendant no.1 through RTGS. Nothing had prevented the plaintiff to pay the whole amount of Rs.3,83,500/- including the amount of Rs.58,500/- allegedly paid in cash, through RTGS to the defendant no.1. No reason whatsoever is forthcoming from the side of plaintiff in this regard, which would clearly falsify the claim of the plaintiff that any such payment to the extent of Rs.58,500/- was made in cash by it to defendant no.1. That being so, this Court does not have any hesitation to hold that the plaintiff company has failed to prove even on the basis of preponderance of probability that it had paid Rs.58,500/- in CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 32 of 43 cash to defendant no.1.
46. Apart from seeking refund of Rs.3,83,500/-, the plaintiff has also claimed a sum of Rs.1,00,000/- from defendant no.1 on the ground that a penalty of Rs. One Lakh was imposed by ONGC (client of the plaintiff) due to non-installation of said UVSS camera on time, due to fault/negligence on the part of defendant no.1. The PW-1 has testified in Para no.7 of his examination-in-chief by way of affidavit to that effect. He has also relied upon copy of Bill as Ex.PW1/5. However, it may be noted that said document, which is a computer generated mail purportedly issued by the office of ONGC to the plaintiff, has not been proved in accordance with law, for the reason that said document was simply marked during his chief examination as Mark C. It may be noted here that the plaintiff/ non-counter claimant has neither filed any affidavit in terms of Order XI Rule 6 (3) CPC as applicable to the Commercial Courts Act, 2015, nor filed the requisite Certificate in terms of S. 65-B of Indian Evidence Act concerning the aforesaid document/computer generated document. [Reliance is placed on judgments of Hon'ble Apex Court in case titled as " Anvar P. V. v. P. K. Basheer & Ors" reported as (2014) 10 SCC 473 and "Ravinder Singh @ Kakku v. State of Punjab" reported as 2022 Live Law (SC) 461]. Hence, said document cannot be read for the benefit of the plaintiff. Once the said document is discarded, there is no iota of evidence led from the side of the plaintiff showing/establishing that penalty of Rs. One CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 33 of 43 lakh was imposed by ONGC upon the plaintiff. This is apart from the fact that the plaintiff has also miserably failed to prove that such penalty, even if imposed, was directly attributable to the negligence/inaction on the part of defendant no.1.
47. Now, the next point which arises for consideration is as to whether or not the UVSS Camera and lens installed at the site by defendant no.1 were defective, as alleged by the plaintiff.
48. In order to decide the aforesaid issue, the evidence led by both the sides need to be looked into. No doubt, the PW1 testified in Para no.5 of his examination-in-chief by way of affidavit that UVSS camera and other items could not be installed at the site, since same were defective and were therefore removed by employee of defendant no1 on 10-01-2020, for which reliance is also placed by him upon Delivery Challan (Ex.PW1/4). However, during his cross-examination, PW1 admitted that he was not personally involved in the transaction based upon the Work Order in question. He rather admitted that defendant no.1 had duly supplied such camera but same got spoiled after a few days. On specific question being put to him, PW1 initially feigned ignorance about the reason due to which the camera got spoiled but then he volunteered that same was probably because of the rain. Further, PW1 is found to have clearly admitted that such camera was working after its installation by the defendants and it CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 34 of 43 stopped working after some days. Not only this, he also admitted that Delivery Challan dated 03-1-2020 was signed by the employee of the plaintiff only after installation of the camera at the site belonging to ONGC. Further, he claimed that his deposition that camera was defective was based on the fact that it had stopped working after about a week. Same would clearly establish that even PW1 has admitted the factum of installation, commissioning and integration of UVSS Camera alongwith lens with Old Electronic Controllers of the plaintiff and also that such camera along with lens worked for few days, after which, same got spoiled due to rain.
49. It is important to highlight that in response to most of the questions put to him on behalf of defendant no.1, PW1 expressed ignorance and did not give any specific or concrete reply by stating that one Mr. Zahid Akhtar used to communicate with the defendants and he (PW1) himself used to sit in the purchase office of the plaintiff and never visited the project site where such camera was to be installed. He is found to have given evasive replies to all the questions put to him relating to the subject matter of the main suit as well as that of the counter claim, including relating to the photographs containing underbelly images of the vehicles, purportedly captured by the UVSS camera installed by the defendant no.1, as also regarding the exact cause of spoiling of such camera being heavy rain at the site in the morning of 08-1-2020 on account of non-functioning of 'sump pump' which led to submerging CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 35 of 43 of such camera in the Camera Housing Unit due to water logging and e-surg. In the aforesaid backdrop, the Court finds considerable force in the argument raised on behalf of defendant no.1/counter claimant that the testimony of PW1 is not trustworthy and cannot be relied upon, being based upon hearsay evidence.
50. Further, the Court is also of the considered opinion that Mr. Zahid Akhtar was the best witness who ought to have been examined by the plaintiff/non counter claimant, as he was well within the knowledge of entire facts and circumstances of the case. The plaintiff chose not to examine him during the course of trial for the reasons best known to it. The Court is not convinced with the submissions made on behalf of plaintiff that since Mr. Zahid Akhtar had already left the services of the plaintiff company, it was not possible for it to examine him during trial. Even if, he would have left the services of the plaintiff company, it was not difficult for the plaintiff company to summon him through the process of the Court for being examined in support of its case during trial. It is nowhere the case of plaintiff that it was not having residential address and other whereabouts of said Mr. Zahid Akhtar, due to which, it was beyond its control to even summon him as a witness through the process of the Court. Having failed to examine Mr. Zahid Akhtar as a witness during trial, the plaintiff itself took the risk of the testimony of PW1 being rejected and its claim to fall down, it being unsubstantiated and unsuccessful.
CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 36 of 4351. As contrary to the case of the plaintiff/ non-counter claimant, DW1 examined from the side of defendant no.1/counter claimant, is found to have testified on the lines of defence raised in the main suit and on the identical lines of the claim raised by way of counter claim. As already noted above, all the relevant portions of his chief-examination by way of affidavit, have virtually gone unchallenged and unrebutted from the side of the plaintiff / non-counter claimant. During his cross-examination, DW1 categorically testified that the defendants never received back UVSS Camera from the plaintiff and voluntarily stated that it was the plaintiff company, which had sent faulty camera to the defendants in their office for the purpose of checking on 10/11-01-2020. He further deposed that the defendants had returned back the said UVSS Camera in the same faulty condition to the plaintiff after 5-6 days of 10/11-01-2020 but the plaintiff did not issue any acknowledgment in that regard. Again, the plaintiff / non-counter claimant did not dispute said portion of his testimony by not putting any further question to the said witness. So much so, not even a suggestion was given on behalf of the plaintiff to the witness that there was no occasion for issuing any acknowledgment in that regard from the side of the plaintiff or that camera did not get spoiled on account of rain. It is also interesting to note that the plaintiff did not put any question whatsoever during cross-examination of DW1 in order to show or establish that either UVSS Camera was defective at the time of its CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 37 of 43 installation or that same got defective subsequently due to fault on the part of defendant no.1.
52. Ld. Counsel of defendants/counterclaimant vehemently argued that there was no warranty against any fault occurring in the camera due to submerging of said camera due to water logging or e-surg. In fact, DW1 categorically testified by way of voluntary statement that there was no warranty in respect of such camera being affected by water logging or e-surg. Again, the plaintiff did not dispute the same as no further question was put to him on its behalf.
53. Apart from above, DW1 has proved photographs containing underbelly images of the vehicles captured by the UVSS Camera installed by it at the project site for the period from 03-01-2020 to 07-01-2020 as Ex.DW1/9 (Colly.). Not only this, he has also proved photographs containing underbelly images of the vehicles captured by said Camera on 08-1-2020 as Ex.DW1/10 (Colly.) and copies of short video clips for the period of 03-1-2020 to 07-01-2020 as Ex.DW1/11 (Colly.). He categorically deposed in Para no.10 of his chief examination by way of affidavit that said UVSS Camera was working satisfactorily from the date of its installation i.e. 03-1-2020 till morning of 08-1-2020 and heavy rainfall in Delhi on that day, flooded UVSS pit consequent to which water entered the Camera Housing Unit thereby damaging the new UVSS Camera. Again, there is no cross-examination from the side of plaintiff with respect to said portion of his CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 38 of 43 testimony. It is trite law that relevant portion of the testimony of a witness, which remains unchallenged and uncrossed, gives rise to an inference that the opposite side has not disputed the same. Still, if any, authority is required then reference with advantage can be made to the judgments of Hon'ble Apex Court in case titled as "Muddasani Venkata Narsaiah v. Muddasani Sarojana,"
reported as AIR 2016 SC 2250 and "Arvind Singh v. State of Maharashtra" reported as AIR 2020 SC 2451.
54. The photographs Ex.DW1/8 (Colly.) would clearly fortify the submission made on behalf of defendant no.1/counter claimant that 'Backup UVSS Camera' installed at the project site of the plaintiff, was working in satisfactory condition from 20-12-2019 till 31-12-2019. Further, the photographs Ex.DW1/9 (Colly.) would clearly fortify the submission made on behalf of defendant no.1/counter claimant that 'New UVSS Camera' installed at the project site of the plaintiff, was working in satisfactory condition from 03-01-2020 till the morning of 08-01-2020. Furthermore, a bare perusal of the photographs Ex.DW1/10 (Colly.) would depict that it had rained on 08-1-2020 at least at the project site and the underbelly images of the vehicles captured by aforesaid UVSS Camera initially turned hazy and ultimately went blank after the camera was spoiled due to its submerging on account of water logging/ e-surg. Same is quite evident from the short video clips Ex.DW1/11(Colly.). All these photographs and Short Video Clips are duly supported by CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 39 of 43 affidavit in term of Order XI Rule 6 (3) CPC as applicable to the Commercial Courts Act, 2015 read with Certificate u/s 65-B of Indian Evidence Act. Said affidavit is duly proved as Ex.DW1/19 and is sworn on oath by none other than the DW1 himself. The authenticity and genuineness of all these photographs and short video clips has gone beyond challenge from the side of plaintiff/non-counter claimant. Not even a single question has been put to DW1 in respect of these photographs and video clips from the side of the plaintiff/ non- counter claimant. These photographs, on the other hand, were duly put to PW1 during his cross-examination from the side of defendant no.1 / counter claimant, but PW1 gave evasive replies by saying that even after looking at those photographs, he could not tell whether the camera was working or not.
55. In view of the foregoing reasons and the discussion made hereinbefore, the Court is of the considered opinion that the plaintiff /non-counter claimant not only failed to prove its claim regarding non-installation and commissioning of UVSS Camera with lens by defendant no.1 at its project site, but, has also failed to establish that it is entitled to seek refund of payment of Rs.3,83,500/- or additional amount of Rs.1,00,000/- on account of alleged penalty imposed by ONGC, due to any fault / negligence on the part of defendant no.1/ counter claimant. The Court is also of the opinion that the plaintiff has failed to prove even on the basis of preponderance of probability that the defendant no.1 failed to perform their part of contract or CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 40 of 43 did not fulfill the terms and conditions of the Work Order, due to which it has any valid cause of action to seek refund of the aforesaid amount along with interest from the defendant no.1. Instead, the defendant no.1/ counter claimant, in the opinion of the Court, has been able to prove on the basis of preponderance of probability that they had completed the terms and conditions of the Work Order dated 29-11-2019 in letter and spirit and since the plaintiff/ non- counter claimant failed to pay balance contractual amount of Rs.3,25,000/- to them without any justifiable ground and in breach of the terms and conditions agreed between the parties, they are entitled to recover the said amount along with interest from the plaintiff/non counter claimant.
56. Although, no evidence has been led by defendant no.1/ counter claimant as regards the rate of interest to be awarded in their favour. It is an admitted position that the contract between the parties is silent as regards the payment of any interest as also about the rate of interest, but, keeping in view the fact that it was a commercial transaction between the parties and the plaintiff/ non counter claimant illegally and without any justification, is found to have withheld the balance payment of Rs.3,25,000/- due towards defendant no.1 / counter claimant, it would be just and appropriate that the defendant no.1/counter claimant is awarded pendente lite and future interest @ 12% per annum on the principal balance amount of Rs.3,25,000/- against the plaintiff/ CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 41 of 43 non-counter claimant. Needless to say that no pre-suit interest is being awarded in favour of defendant no.1/ counter claimant as it has neither claimed any pre-suit interest in the Counter Claim, nor paid any Court Fee thereupon. Resultantly, the issue nos. (i) and (ii) in the main suit are decided against the plaintiff/non counter claimant, whereas the issue no. (iii) in the main suit and issue no. (i) in the counter claim are decided in favour of defendant no.1/ counter claimant.
RELIEF:
[ In the main suit i.e. CS (COMM.)/106/2021 ]
57. In view of the findings on the above issues, the suit is hereby dismissed.
[ Reilef in the COUNTER CLAIM/33/2021 ]
58. In view of the findings on issue no (i), the Court is of the view that the counter claimant/defendant no. 1 has been able to prove its case on the basis of preponderance of probability. Hence, the counter claim is decreed in favour of counter claimant/ defendant no. 1 and thus, the following reliefs are granted:-
(i.) The counter claimant is entitled to recover Rs.3,25,000/- from the non- counter claimant/ plaintiff company;
(ii.) Pendent-lite interest is awarded @ 12% per annum;
(iii.) Future interest is awarded @ 12% per annum till CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 42 of 43 the date of its realization; and (iv.) Cost of the counter claim is also awarded in favour of the counter claimant.
59. Separate Decree sheets be prepared accordingly in both the matters.
60. Signed copy of this judgment be placed in the judicial files of the main suit as well as of the counter claim.
61. Both the files be consigned to Record Room, after due compliance. Digitally signed by VIDYA VIDYA PRAKASH Announced in the open court PRAKASH Date:
on 28th Day of May, 2024. 2024.05.28 14:48:43 +0530 (VIDYA PRAKASH) DISTRICT JUDGE (COMMERCIAL COURT)-02 PATIALA HOUSE COURTS, NEW DELHI CS(COMM)/106/2021 AND COUNTER CLAIM/33/2021 Page 43 of 43