Delhi District Court
M/S Valuemobi Media Pvt. Ltd vs M/S Trigma Solutions Pvt. Ltd on 4 March, 2020
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
COURT02), SOUTH DISTRICT, SAKET COURT, NEW DELHI
CS (Comm) 23/2019
M/s Valuemobi Media Pvt. Ltd.
Through its Director Shri Harish Sharma,
Office at 136/2, First Floor,
Begumpur, Shivalik Road,
Opposite Liberty Showroom,
Malviya Nagar, New Delhi - 110017 ..... Plaintiff
Versus
1. M/s Trigma Solutions Pvt. Ltd.
A Company registered under the Companies Act
having its office at 3rd Floor, TowerC DLF Info City,
Rajiv Gandhi Chandigarh Technology Park,
Chandigarh160101 (through its Director)
2. Mr. Piyush Sood, Director
3. Mr. Ajay Sharma, Director
4. Mr. Prashant Sood, Director
having their office at M/s Trigma Solutions
Pvt. Ltd,, 3rd Floor, TowerC DLF Info City,
Rajiv Gandhi Chandigarh Technology Park,
Chandigarh160101 ..... Defendants
Date of institution of suit : 27.02.2019
Date of hearing arguments : 04.03.2020
Date of judgment : 04.03.2020
JUDGMENT
1. This is a suit for recovery of money.
2. In brief, case of the plaintiff is that it is a private limted company Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 1 of 10 registered under the Companies Act, 1956, having registered office at Delhi. Plaintiff company is engaged in the business of ecommunication in the name and style of M/s Valuemobi Media Pvt. Ltd, having registered office at 136/2, First Floor, Malviya Nagar, New Delhi110017. Defendant no. 1, M/s Trigma Solutions Pvt. Ltd. is also a private limited company, having office at Chandigarh and defendant no. 2 to 4 are the directors of defendant no. 1 company dealing in software.
3. Directors of defendant no. 1 company approached plaintiff company for providing services of ecommunication i.e. to send SMS(s) after providing portals for sending SMS in the year 2016. Case of plaintiff is that against the services provided, plaintiff used to raise invoices and as per the prevailing market practice and as agreed between the parties, defendants were liable to make payment of the invoice amount within 15 days from the date of invoice/bill.
4. It is stated that lastly defendants paid a sum of Rs.2,78,801/ by way of NEFT on 20th March, 2018 and have not paid due amount despite several requests and emails and service of legal notice dated 12 th November, 2018 duly received by them on 6th December, 2018. It is stated that plaintiff was maintaining a running account and as per books of accounts, maintained by plaintiff, a sum of Rs.14,19,202/ is due and outstanding against the defendants, who are also liable to pay interest @ 18% per annum. It is averred that defendants are liable to pay an interest amount of Rs.2,55,456/. Thus, in total, defendants are liable to pay a sum of Rs.16,74,658/.
5. Defendants have contested the suit by filing written statement. It is stated that plaintiff had approached for providing SMS(s) on the portals since 2016 and business transactions existed between the parties till 2018. In preliminary objejction, it is stated that this court has no territorial jurisdiction to Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 2 of 10 adjudicate the dispute as defendants are based at Chandigarh and plaintiff company is having its office in New Delhi and no cause of action arose in favour of plaintiff in Delhi. On merits, defendants have denied that services were provided by the plaintiff to defendants as per satisfaction. It is denied that plaintiff company raised invoices against the said work and the plaintiff was maintaining the running ledger account in the name of defendants company. It is submitted that it was plaintiff who contacted defendants company and plaintiff company since starting was not performing their work diligently and despite several reminders to the plaintiff company by the defendants, they were not able to give satisfying result and whenever defendants requested for proof of services being provided by the plaintiff, they used to avoid the same on one reason or the other.
6. It is submitted that defendants have stated that plaintiff company was not providing their services diligently and not providing satisfying results and, therefore, defendants had lastly paid a sum of Rs.2,78,801/ to the plaintiff as full and final settlement of the accounts between the parties and it was fully assured by plaintiff company that after the said payment, nothing was outstanding towards the defendants' company. It is stated that plaintiff has filed a false and frivolous suit. It is submitted that defendant had duly replied to legal notice dated 12 th November, 2018 vide reply dated 22 nd January, 2019. It is denied that the sum, as claimed, is due and it is also denied that defendants are withholding payment of Rs.16,74,658/ of the plaintiff. Defendants have prayed for dismissal of the suit.
7. In replication, plaintiff has reiterated its version as stated in the plaint and denied that this court has no jurisdiction to adjudicate the present suit. It is submitted that plaintiff is having office at New Delhi and defendants had contacted the plaintiff in Delhi for the business and as such cause of action Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 3 of 10 accrued at Delhi.
8. On 31st May, 2019 during admissiondenial of documents, defendants only admitted address proof of defendants company as well as legal notice dated 12th November, 2018 marked as P1 and P2.
9. From the pleadings of the parties, following issues were framed by Learned predecessor of this court on 31st May, 2019 :
1. Whether plaintiff is entitled for recovery of Rs.16,74,658/ from the defendants, as prayed for? OPP
2. If issue no. 1 is proved in affirmative, whether plaintiff is entitled for interest, if yes, at what rate and for what period? OPP
3. Whether this court has no territorial jurisdiction to adjudicate upon the present matter? OPD
4. Relief
10. Court had appointed Shri Sajal Kumar Mukherjee as Local Commissioner, to record evidence who recorded evidence and filed report on record on 20th December, 2019. On behalf of plaintiff, Shri Harish Sharma, director of plaintiff company as PW1 and Shri Praveen Khatri, Tax Assistant as PW2 were examined and on behalf of defendants, Shri Divya Vashisht, HR (Manager) was examined as DW1.
11. This court has heard submissions advanced by Shri V.R. Kapoor, learned counsel appearing for plaintiff and Shri Mohit Arora, learned counsel, appearing for defendants and also perused the record. Issuewise findings are as under : ISSUE NO. 3
12. Issue no. 3 is whether this court has no territorial jurisdiction to Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 4 of 10 adjudicate upon the present matter. The onus to prove this issue is upon the defendants. This issue regarding jurisdiction is taken first of all. Case of the defendants is that this court has no territorial jurisdiction to adjudicate the dispute as defendants are based at Chandigarh and plaintiff company is having its office in New Delhi and no cause of action arose in favour of plaintiff in Delhi. It is submitted that as per the own case of plaintiff, SMS(s) were sent by the defendants from Chandigarh and nothing happened at Delhi.
13. In his affidavit, DW1 Shri Divya Vashisht has reiterated the aforesaid fact regarding jurisdiction. He deposed that plaintiff company contacted the defendants in Chandigarh and whole transactions happened in Chandigarh and even payments were released in favour of plaintiff company by the defendants from the bank situated at Chandigarh. In crossexamination, DW1 deposed that company had ordered on the plaintiff company through email.
14. In examinationinchief/affidavit, Shri Harish Sharma, PW1 has deposed that the plaintiff starting providing services of SMS(s) to the defendants after providing portals of SMS(s) to the defendants from Delhi. PW1 deposed that plaintiff used to raise invoices (Ex.PW1/4 to Ex.PW1/8) against the services rendered to defendants' company from Delhi and further all disbursal of the SMS(s) were provided from Delhi office of the plaintiff's company. In cross examination, PW1 stated that he had only provided the portal/APL to the defendants from Delhi office, however, the SMSs were sent by defendants who were at liberty to send SMSs from anywhere around the World. PW1 denied the suggestion put to him by the counsel for defendants that Delhi office of plaintiff did not provide any service to the defendants.
15. After hearing the submissions and perusal of record, this court is satisfied that part of cause of action had arisen at Delhi and within the jurisdiction Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 5 of 10 of this court. This issue is decided in favour of the plaintiff and against the defendants. There is no dispute that office of plaintiff company is situated at Delhi. Perusal of record shows that the tax invoices Ex.PW1/4 to Ex.PW1/8 mention the address of plaintiff at Delhi. As per the terms of payment mentioned in the invoices, the payment was to be made in the name of plaintiff company at ICICI Bank (Account No. 022405002600), Panchsheel Park, New Delhi110016. Emails Ex.PW1/10 to Ex.PWA1/16 were sent by the plaintiff to the defendants from its Delhi office.
ISSUE NO. 116. Issue No. 1 is whether plaintiff is entitled for recovery of Rs.16,74,658/ from the defendants, as prayed for. The onus to prove this issue was upon the plaintiff. Case of the plaintiff is that he had provided portal services for sending SMS(s) by the defendants during the period between 2016 to 2018 and against the services provided to the defendants plaintiff had raised tax invoices which have been proved by PW1 as Ex.PW1/4 to Ex.PW1/8. Date, amount claimed in the tax invoices in question as well as SMS count/rate mentioned therein as under : Date Amount claimed SMS count/rate Exhibits 31 October, 2017 st Rs.2,62,179/ 22221859.16 Ex.PW1/4 30th November, 2017 Rs.3,61,541/ 306391 Ex.PW1/5 31 December, 2017 st Rs.4,02,069/ 3785964 Ex.PW1/6 31st January, 2018 Rs.4,24,037/ 3992811 Ex.PW1/7 28 February, 2018 th Rs.19,359/ 16406 Ex.PW1/8
17. It is submitted that the aforesaid amount included IGST @ 18% per annum which has already been paid by the plaintiff to the Tax Department. Plaintiff has placed on record statement of ledger account w.e.f. 01 st April, 2016 Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 6 of 10 till 20th March, 2018, Ex.PW1/9, perusal of which shows receipt of a sum of Rs.2,78,801/ on 20th March, 2018 paid by the defendants and the ledger account statement shows balance of Rs.14,19,202/. Counsel for plaintiff pointed out that plaintiff had sent emails to the defendants demanding the due amount which are Ex.PW1/10 to Ex.PW1/16. None of the emails were responded to by the defendants and thereafter, plaintiff served a legal notice dated 12th November, 2018, Ex.PW1/17 whereby plaintiff demanded a sum of Rs.14,19,202/ apart from interest @ 18% per annum amounting to Rs.2,55,456/ and total Rs.16,74,658/. Notice was duly replied to by the defendants vide reply dated 22nd January, 2019 which has not been disputed by the defendants.
18. In their affidavit dated 30th May, 2019, filed by the defendants, all the documents exept P1 and P2 i.e. address proof and legal notice were denied. Ld. Counsel for plaintiff submitted that defendants had denied invoices, emails as well as account statement filed by the plaintiff, but had not given any reason for denial as required U/o 11 Rule 4 of the Amended CPC. As per Order 11 Rule 4 CPC, a bare and unsupported denial shall not deem to be denial of a document and proof of such documents may be dispensed with at the discretion of the court.
19. In his deposition, PW1 stated that he had filed invoices which showed count of SMS(s) sent. He denied the suggestion that he had not done any work for the defendants qua the pending invoices. PW1 stated that there were DLR's which show the SMS(s) sent. PW1 further deposed that defendants had further deducted the TDS on sending of SMS(s). DW1, Shri Divya Vashisht, during crossexamination, admitted the invoices, Ex.PW1/4 to Ex.PW 1/8 as correct, contrary to their stand in the written statement. DW1 further Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 7 of 10 deposed that they had not filed any proof regarding demand of SMS(s). DW1 deposed that he had not filed any letter or email regarding the dissatisfaction of services of plaintiff company. There is nothing on record to show that defendants had sent any reminders to plaintiff regarding demand of SMS(s) or any letter/notice or email as regards the fact that plaintiff had not provided satisfactory services.
20. Defendants' version that a sum of Rs.2,78,801/ was paid to the plaintiff on 20th March, 2018 as full and final settlement has not been proved. Admittedly, defendants have not placed on record any settlement deed or any receipt/documents to show that defendants had fully and finally settled the accounts with the plaintiff. DW1 admitted in the crossexamination that defendants had not filed any settlement deed or full and final receipt in this regard. In the reply dated 22 nd January, 2019 of the legal notice given by the defendants, it is stated that plaintiff had a running account with the defendants and over the period of time many payments to and fro were made. Reply further noted that account books of the defendants were closed in March, 2018 and for further rendition of amount and settlement, plaintiff was requested to visit office of defendants.
21. This court finds that defendants have failed to prove that last payment of Rs.2,78,801/ paid to the plaintiff on 20 th March, 2018 in the running account was towards full and final settlement with the plaintiff. Defendants have failed to prove that services provided by the plaintiff were not satisfactory. Plaintiff has not filed any document in the form of any letter/email regarding the complaints as regards unsatisfactory services by the defendants. Version of defendants is falsified by PW2 who is a witness from Income Tax Department i.e. Tax Assistant from the Office of ITO (TDS)1, Chandigarh. He proved on Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 8 of 10 record TDS certificate in favour of plaintiff for the assesement year 201718 and 201819, Ex.PW3/2 and Ex.PW3/3. The TDS certificate/form 26AS specifies the transaction dates pertaining to invoices Ex.PW1/4 to Ex.PW1/8, proved by the plaintiff which shows that tax had been deducted by the defendants on the invoices raised by the plaintiff and deposited the same with the Income Tax Department, Chandigarh. This fact clearly proves the factum of raising of invoices by the plaintiff to the defendants.
22. On appreciation of evidence on record as whole, this court finds that defendants have failed to estalish their version. Defendants have failed to prove that it had fully and finally settled the matter with the plaintiff and in that connection had paid Rs.2,78,801/ on 20 th March, 2018 to the plaintiff. Defendants have failed to prove that the services provided by the plaintiff were not satisfactory. The stand of the defendants that no invoices were raised, taken in the written statement, has been falsified by their own witness DW1, who admitted the invoices. Last, but not the least, the witness from the Income Tax Department has proved the fact of reduction of TDS and deposit of the same in respect of the aforenoted five invoices by the defendants. The ledger account proved on record by the plaintiff shows closing balance of Rs.14,19,202/ in the running account of defendants. Defendants have failed to place on record any e mails or reminders as regards dissatisfactory services provided by the plaintiff, as alleged or any documentary evidence or their own statement of account to the contrary. In the result, this court finds that plaintiff has discharged its onus and has proved the fact that it is entitled to the principal amount of Rs.14,19,202/. This issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 223. Counsel for the plaintiff submitted that interest rate prevailing in the Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 9 of 10 market is 18% per annum. He did not dispute that there is no agreement as regards the interest payable on the due amount by the defendants. On the other hand, counsel for defendants submitted that market rate in any case is not more than 10 to 11% per annum lending and borrowing rate and otherwise for saving accounts it is around 7 to 8% per annum. As per the case of plaintiff, as pleaded in the plaint, defendants were liable to make payment of the invoice amount within 15 days from the date of invoice/bill. In the written statement, defendants had evasively denied this fact. Defendants have further stated that it was plaintiff's company who never adhered to the terms and conditions decided between the parties. Defendants have failed to show as to what were the terms and conditions decided between the parties or after how many days of raising of invoice, they were liable to make the payment. Having regard to totality of facts and circumstances, this court finds that plaintiff is entitled to interest @ 9% per annum from the date of filing of this suit i.e. 26.02.2019. This issue is decided in favour of plaintiff and against the defendants.
Relief
24. In view of the findings on the aforesaid issues, this court finds that plaintiff is entitled to a decree in the sum of Rs. 14,19,202/ alongwith interest @ 9% per annum from the date of filing of the suit i.e. 26.02.2019 till realization of the entire amount. Cost of the suit i.e. court fee is also awarded in favour of plaintiff. Decree sheet be prepared accordingly.
25. File be consigned to record room.
(Announced in the open court today i.e. on 04.03.2020) N VINAY KUMAR KHANNA District Judge (Commercial Court02) South Distt., Saket, New Delhi/04.03.2020 Valuemobi Media Pvt. Ltd. V Trigma Solutions & Ors. Page 10 of 10