Delhi District Court
M/S Nissan Motor India Pvt Limited vs R.S Live Media Pvt Ltd. And Anr on 1 February, 2024
IN THE COURT OF MS VANDANA: ADDITIONAL
DISTRICT JUDGE-8 (CENTRAL), TIS HAZARI, DELHI
RCA No. 101/2018
Unique ID No.: DLCT01-007342-2018
In the matter of:
M/s. Nissan Motor India Private Limited,
Having Its Registered Office At
Plot 1A, SIPCOT Industrial Estate,
Oragadam, Mattur Post, Sriperumbudur Taluk,
Kanchipuram District-602105.
Also At :
5th Floor, Orchid Business Park,
Sohna Road, Sector-48,
Gurugram. ........Appellant
VERSUS
1. R.S. Live Media Private Limited and another,
Through Its Authorized Representative,
Having Its Registered Office At
3rd Floor, 13 Sant Nagar,
East of Kailash, New Delhi.
2. KLI Advertising,
Having Its Registered Office At
1101, Padma Tower-I,
5, Rajendra Place,
New Delhi. ...........Respondents
RCA No. 101/2018 Page no. 1 of 16
Date of institution : 30.05.2018
Date of Reserving judgment : 01.02.2024
Date of pronouncement : 01.02.2024
For appellant : Mr. Bharat Malhotra, Advocate.
For respondent no. 1. : Mr. Gaurav Sharma, Advocate.
For respondent no. 2. : Mr. Munish Kumar, Advocate.
JUDGMENT :
1. This appeal under section 96 of the Code of Civil Procedure, 1908 (CPC), preferred by appellant against respondents against the judgment dated 28.4.2018 passed by the Court of Civil Judge-06, Central District, Tis Hazari Courts, Delhi, arising from the decree passed in suit no. 597307/2016, whereby suit for recovery of Rs.1,33,560/- alongwith pendente lite and future interest at the rate of 24% per annum was decreed in favour of the respondents and against the appellant. For the sake of convenience, the parties will be referred by their original status.
2. For the purpose of deciding the present appeal, the facts of the plaint in brief, are as under:-
2.1 The plaintiff company i.e. R.S. Live Media Pvt. Ltd.
(respondent no. 1 herein) is engaged in the business of providing advertising services to various corporate and other business entities through various sources such as display screens which are prominently RCA No. 101/2018 Page no. 2 of 16 displayed at leading Hotels, Restaurants, public places etc. The defendant no. 1 i.e. KLI Advertisement (respondent no. 2 herein) is engaged in the business of providing marketing, advertising and promotional services and the defendant no. 2 i.e. Nissan Motor India Pvt. Ltd. (appellant herein) is a leading vehicle manufacturer and seller in India and across the world and was engaged in the promotion and advertising services for the vehicle named Nissan Terrano launched by the defendant no. 2.
2.2 It is further stated that the defendant no. 1 had approached the plaintiff and had visited their office at East of Kailash requesting them to run an advertising campaign for the period commencing from 10th February, 2014 to 28th February, 2014 and defendant no. 1 on instructions from the defendant no. 2 desired to run the campaign in the region of Delhi in hospitality, Corporate's, Personal Care, Health care and Sticking media for the product, that is Nissan Terrano Car manufactured by the defendant no. 2. Therefore, on the agreed terms and conditions the plaintiff company had provided its promotional services for the aforesaid campaign of the defendants and had telecasted the promotional campaign for a period from 10th February, 2014 to 28th February, 2014, thereby, completing its part of the contract entered between the plaintiff company and the defendants.
2.3 It is further stated that the plaintiff after completion of the campaign had issued an invoice numbered LM 2013-14/402 dated 28 th RCA No. 101/2018 Page no. 3 of 16 February, 2014 and sent the same to the defendant no. 1 via e-mail on the e-mail Id : [email protected] for the amount of Rs.1,33,560/- (Rupees One Lakh Thirty Three Thousand Five Hundred and Sixty Only) which was duly received and acknowledged by the defendant no. 1 and since then the plaintiff was constantly following up with the defendant no. 1 and the defendant no. 2 for the payment of the aforesaid amount. It is further stated that the defendant no. 1 had accepted its liability for the legal debt in favour of the plaintiff, however, the same was not paid by the defendant no. 1 citing the reason for the same to be non payment of dues by the defendant no. 2. It is further stated that both the defendants are jointly and severally liable for the payment of the outstanding amount due to the plaintiff in view of the principal and agent relationship of the defendant no. 1 to the defendant no. 2 and since the completion of the advertising campaign and the sending of the invoice to the defendant no. 1, the plaintiff had been constantly following up with the defendant no. 1 with regard to the payment of the outstanding amount, that is Rs.1,33,560/-, but the defendant no. 1 did not pay any heed to the plaintiff's requests.
2.4 It is further stated that the intention of the defendants since the very inception was to cheat the plaintiff company and utilize its best services without having to fulfill their part of the contract and therefore left with no other alternative, the plaintiff company was forced to send a legal notice dated 10th June, 2015, however, the RCA No. 101/2018 Page no. 4 of 16 defendants failed to take any action on the same. Hence the suit was filed for recovery of Rs. 1,33,560/- alongwith future interest @ 24% p.a.
3. No WS was filed on behalf of the defendant no. 1 i.e. KLI Advertising and opportunity to file the WS was closed and was also proceeded ex parte vide order dated 30.11.2015.
4. Written Statement of Defendant no. 2 i.e. Nissan Motors India Pvt. Ltd.
4.1 The suit was contested by the defendant no.2 only. It is further stated that the other defendant is the service provider appointed by its ex-distributor M/s. Hover Automotive India Private Limited (HAI for Short) for Marketing, Sales & Promotion of Nissan Brand cars in India and that M/s. Nissan Motors Limited Japan (NML for short) had appointed Hover Automotive India Private Limited (HAI) as its distributor for managing the entire sales and marketing functions for the defendant in India. It has been further stated that M/s. Nissan Motors Limited Japan (NML for short) had terminated its relationship with the Hover Automotive India Private Limited (HAI) with effect from 14.2.2014. It is further stated that the defendant neither approached the plaintiff nor the defendant no. 1 for carrying out any business of either providing marketing, advertising and the promotional services for the vehicle of the defendant, but it was HAI RCA No. 101/2018 Page no. 5 of 16 who approached the defendant no.1 and in turn the defendant no. 1 approached the plaintiff. Hence, the suit is liable to be dismissed against the defendant for mis-joinder of parties as defendant shares no relationship with the plaintiff.
4.2 It is further stated that the defendant is not liable for the payment of the particular amount as claimed by the plaintiff and the plaintiff in the present suit does not have any privity of contract with the defendant. It is further stated that there exists no relationship of principal and agent between the defendant, HAI and the defendant no. 1 and that Nissan Motors India Private Limited shares principal to principal relationship with all its dealers and other business partners, wherein each activity and liability is clearly defined and no one will act as an agent of one another. It is further stated that in the present case the plaintiff acted on the instructions and offers of the defendant no. 1 and the defendant no. 2 has not come anyway between them. It is further stated that legal position is when the goods are sold by principal to its distributors creating "principal and principal"
relationship wherein on the sale of goods, the ownership passes from the manufacturer to the distributors and thereafter, it is the responsibility of the distributor to sell those goods further to the consumers, ultimate users.
5. Replication 5.1 The plaintiff filed replication to the written statement of RCA No. 101/2018 Page no. 6 of 16 the defendant no. 2, wherein, the averments made in the plaint were reiterated and the contents of the written statement were controverted.
6. On the basis of the evidence, the suit was decreed vide impugned judgment dated 28.04.2018. Thereafter, the appeal was preferred by the defendant no. 2 against the respondents i.e. (i) R.S. Live Media Private Ltd. And (ii) KLI Advertising on the following grounds:-
(i) The Trial Court failed to appreciate that the respondent no. 1 in the initial stage of the suit, post framing of issues preferred an application under Order 14 Rule 5 CPC wherein plaintiff no. 1 has prayed for framing of two additional issues based on written statement of the defendant, however, court vide order dated 23.04.2016 dismissed the application by imposing cost of Rs.1,000/-.
(ii) The Trial Court failed to appreciate the testimony of PW-
1 namely Sh. Shailesh Jha who during his cross examination categorically stated that "I cannot tell about how the meeting was called for signing of the board resolution". He further stated that "I cannot tell whether the copy of board of resolution as well as minutes of meeting dated 15.03.2010 was sent to ROC or not. I do not have any knowledge about the procedure of execution of resolution as well as conducting board proceedings". He further stated that "I joined the plaintiff company as IT Administrator. My job profile was to look after all issues regarding the IT. I am not in the marketing team.". He further stated that "In February, 2014, defendant no.1 approached for RCA No. 101/2018 Page no. 7 of 16 publicity/advertisement of the products of Nissan Motors". He further stated that "I cannot show any document to the effect that the defendant no. 2 had given an instruction to defendant no.1 as mentioned in para 6 in my affidavit. He further stated in his cross examination that "The billing was done in the name of defendant no.1. It is correct that no billing was done in the name of defendant no.2. I am graduate. I am not aware about the obligation of the agent on behalf of the principal".
(iii) The Trial Court failed to appreciate the testimony of PW- 2 namely Sh. Saurabh Negi. During his cross examination on 31.01.2017 he clearly stated that "I am working with the Company almost 10 years. It is correct that I have not placed on record any document to show that I am working with the company". He further stated that "It is correct that I have not placed any document in respect of communication of any instruction from defendant no. 2 to defendant no. 1 as mentioned in my affidavit of evidence". He further stated that "It is correct that no emails or communication between the plaintiff and the defendant no. 2 are on record to show any kind of relation between the plaintiff and defendant no. 2". He further stated that "It is correct that there is no agreement between the plaintiff and the defendant no. 2 in respect of any work. It is correct that all the communication was done between the plaintiff and defendant no.1. It is correct that no communication or bill ever done with the defendant no. 2.
(iv) The Trial Court failed to appreciate the testimony of DW-
RCA No. 101/2018 Page no. 8 of 16 1 namely Sh. Bhavesh Saxena who relied upon distribution agreement dated 28.06.2012. During his cross examination he categorically stated that, "My Company was supplying the car of the make Nissan Terrano to Hover Automotive India Pvt. Ltd. My Company did not keep a tab over what was done by HAI after that. My company was no longer concerned to in charge of the marketing or sales activities pertaining to the cars handed over to HAI. It is correct that Mark A is not a complete document but only a few pages of tripartite agreement entered into between Nissan Motor Company Ltd., Nissan Motors India Pvt. Ltd and HAI. I am not aware about any agreement and the nature of any such agreement being executed between HAI and defendant no.1.
(v) The Trial Court failed to appreciate that NMIPL shares Principal to Principal relationship with all its dealers and other business partners, wherein each activity and liability is clearly defined and no one will act as an agent of one another which can be clearly looked upon the Confidential Document Mark A i.e. Distribution Agreement dated 28.06.2012 wherein Article 33 of the same is reproduced herein for the convenience of this court:-
Article 33. Relationship "This Agreement does not constitute either Party as the Agent or the Legal Representative of the other party for any purpose whatsoever. Neither Party is granted any express or implied right or authority to assume or to create any obligation or responsibility on behalf or in the name of the party or to bind the same in any manner whatsoever."
RCA No. 101/2018 Page no. 9 of 16 (vi) The Trial Court failed to appreciate that there was no privity of
contract of the defendant with plaintiff no. 1 or plaintiff no. 2. At best, if the plaintiff no. 1 has any claim, it is against plaintiff no. 2 i.e. KLI Advertising who has dealt with the plaintiff no.1 company with the job of carrying advertisement. The defendant did not have any contract or transaction with the plaintiff no. 1. Defendant had thereafter on a Principal to Principal relation with HAI entrusted him the job of managing the entire sales and marketing functions, however, even that was terminated w.e.f. 14.02.2014. Defendant never appointed plaintiff no. 2 as their agent or sub-agent.
(vii) The Trial Court failed to appreciate Ex.P-1/3 written order and Ex.P-1/5 the Invoice dated 28.02.2014 which have been issued by plaintiff no. 2 to plaintiff no. 1 and plaintiff no. 1 to plaintiff no. 2 which are the evidence of communication between plaintiff no. 1 and plaintiff no. 2.
(viii) The Trial Court failed to appreciate that the evidence establishes that dealing between defendant and HAI were essentially on a Principal to Principal basis and the evidence on record has established that there was no privity of contract between plaintiff no. 1 and defendant which defendant cleared in his cross examination by stating that "I cannot show any document to the effect that the plaintiff no. 2 had given an instructions to plaintiff no.1 as mentioned in Para6 in my affidavit.
(ix) The Trial Court failed to appreciate that as per email exchanged between plaintiff no. 1 and defendant it was categorically RCA No. 101/2018 Page no. 10 of 16 told by plaintiff no. 1 that plaintiff no. 1 accepted an advertising campaign from plaintiff no. 2 via marketing partner HAI which reflects that plaintiff no. 1 was having the knowledge about HAI and deliberately in order to misconstrue the court, never impleaded HAI in their suit.
7. Notice of the appeal was issued to the respondent. No reply was filed by the respondent/plaintiff and Ld. Counsel for respondent/plaintiff chose to argue the same straightaway.
8. I have heard the arguments on behalf of the both the parties and perused the Ld. Trial court record.
9. As discussed above, the respondent no. 2 i.e. KLI Advertising was proceeded ex parte and matter was not contested by it. Therefore, it was rightly observed by the Ld. Trial court that the respondent no. 2 who was the defendant no. 1 in the main suit, did not contest the suit, the presumption is that there was no real, tenable defence available with him, hence, according to the invoice Ex. PW1/5, the plaintiff / respondent no. 1 has been able to prove that he is entitled for the recovery of the suit amount, which has been prayed for.
10. The only contention here is that vide impugned judgment dated 28.04.2018 passed by Ld. Trial Court, the Ld. Trial Court held RCA No. 101/2018 Page no. 11 of 16 both the the defendants i.e. including the appellant (Defendant no. 2) herein jointly and severally liable to pay the suit amount. Though, according to the appellant, he was nowhere in between the contract with the plaintiff and defendant no. 1 i.e. R.S. Live Media Pvt. Ltd.
11. The defendant no. 2 / appellant has taken the plea that appellant company was supplying the car of the make Nissan Terrano to Hover Automotive India Pvt. Ltd. on behalf of the defendant, DW-1 Sh. Bhavesh Saxena appeared as authorized representative, who relied upon his affidavit as Ex. PW1/A. But as such, admittedly, no copy of any authorization is there on record in favour of the DW-1 to depose on behalf of the company, hence, his affidavit Ex. DW1/A is not safe to be relied upon. Further, it has been claimed by the respondent company that according to tripartite distribution agreement entered into between Nissan Motor Company Ltd. (Parent company), Nissan Motor India Pvt. Ltd. and Hover Automotive India Pvt. Ltd. i.e. Mark A, all the parties are independent in their field of work and its specifically lays down in clause no. 33-1 of article 33 that, "neither parties granted any express or implied right or authority to assume or to create any obligation or responsibility on behalf or in the name of other party to bind the same in any manner and whatsoever, but during cross-examination, it was duly admitted that mark A is not a complete document but only of few pages of the said agreement. Therefore, an incomplete document can not be read into evidence.
RCA No. 101/2018 Page no. 12 of 16
12. So far as the case of the plaintiff / respondent no. 1 is concerned, the plaintiff evidence has gone unrebutted on the point of advertisement according to the order placed by the respondent no. 2. Further, mark A i.e. Advertisement order itself finds mentioned that "immediately on publishing the above advertisement, please send one voucher copy to our client". When the plaintiff, after the advertisement, as prescribed in the order dated 07.02.2014 sent an invoice to the respondent no. 2 and respondent no. 2 sent an email to the respondent no. 1 / plaintiff, that "bills relating to activity done by Nissan, (Hoover), it was made very clear to their executive that payments would be made once we received the same from our client". Even respondent no. 1 also sent an email to the appellant, herein, mentioning that, "we at RS Live Media Pvt. Ltd accepted and advertising campaign from KLI Advertising agency via your marketing partner, 'who were international' under the guidance and in the presence of Mr. Vinay Sharma, who was at that time, regional head for Nissan, taking care of marketing activities. The order value was of Rs. 1,33,560/- and the Release Order was dated 07.02.2014 and the brand promoted through our medium was Nissan Terrano and we made every effort to make the campaign successful for Nissan......" . The above said mail was sent at the email address i.e. Vivek.Paliwal @ email.Nissan.in. DW-1 categorically admitted that, Mr. Vivek Paliwal is still working in the appellant company, but surprisingly, Mr. Vivek Paliwal was never called in the witness box to deny the receiving of said email, which means an admission on the part of the RCA No. 101/2018 Page no. 13 of 16 appellant.
13. Further, one suggestion was put to DW-1 as to whether Sh. Ajay Raghuvanshi, Sh. Vivek Paliwal and Sh. Vinay Sharma were personally dealing with the plaintiff and the defendant no. 1 for the transaction in dispute. DW-1 interestingly did not deny the said suggestion, rather, testified that he is not aware of the same. The only document relied upon by the appellant on the basis of which, the appellant company has alleged that as such Hover Automotive India Pvt. Ltd. was working independently from the appellant company could not be proved as observed above.
14. During the course of arguments, it was also alleged that dealership hover Automotive India Pvt. Ltd. has already been terminated / rescinded, but as such, there is no evidence on record as to when it was so terminated / rescinded. It was duly proved on record that HAL was in a contractual relationship with the respondent no. 2. The evidence and testimony on record clearly reflects the link between appellant and respondent no. 2. Therefore, I am of the considered opinion that the Ld. Trial Court rightly observed as under:-
"Since the correspondences between the plaintiff and defendant no. 1 show that HAL had approached defendant no. 1 for advertising services, an indirect link is prima facie established between the plaintiff and the defendant no. 2. Also, the very fact that HAL was in a contractual relationship with the defendant RCA No. 101/2018 Page no. 14 of 16 no. 1 as is evidence in the correspondences exchanged between plaintiff and the defendant no. 1, which documents have remained undisputed and not disproved, go on to show link between the plaintiff and the defendant no. 2 even if indirect and involving intermediaries. Coupled with it is the fact that HAL had entered into a contractual relationship with the defendant no. 2 and the fact of its termination and rescission has not been proved by the defendant no. 2. Hence, a link even though tenuous is found to be existing between the plaintiff and the defendant no. 2. The defendant no. 2 is prima facie the the ultimate beneficiary of the promotional activities of the plaintiff and hence, it cannot take the plea of absence of privity to exculpate / extricate itself from financial liability qua the plaintiff."
15. It was further rightly observed by the Ld. Trial Court that as under:-
"Strictu sensu, the contention of the defendant no. 2 appears to be valid. However, the veneer of legal tenability of this plea falls off as soon as we dig a bit deeper into it. Even though there was no direct contract between the plaintiff and defendant no. 2, the kind of exercise undertaken by the plaintiff for promoting cars of the defendant no. 2 and the relationship that emerges between the plaintiff and the defendant no. 2 can be termed to be a quasi contractual relationship. It has all the inner trappings of a contractual relationship even though the external semblance and manifestation may appear to be different from a direct / express contractual relationship. It is quite evident that the promotional services RCA No. 101/2018 Page no. 15 of 16 rendered by the plaintiff for the defendant no. 2's car were not gratuitous in nature. While undertaking the marketing / advertising activities for the Nissan Terrano car, the plaintiff did not intend to do so gratuitously and he had expectations of being paid for the same. Hence, it is entitled to receive compensation for the services rendered by it, if the other party i.e. defendant no. 2 herein has enjoyed the benefit of the thing done or service delivered by the plaintiff."
16. In view of abovesaid reasons, it is hereby held that Ld. Trial Court has rightly appreciated the material placed on record. The Court does not find any infirmity or irregularity in the reasoning given vide order dated 28.4.2018. Consequently, the appeal against the order dated 28.4.2018 is hereby dismissed. The order dated 28.4.2018 passed by Ld. Trial court is hereby affirmed.
17. A Copy of this order be sent to the Ld. Trial Court alongwith trial court record. File of the present appeal be consigned to Digitally signed record room after due compliance. VANDANA by VANDANA Date: 2024.02.01 16:30:31 +0530 Pronounced in the open Court (VANDANA) on 1st February, 2024. Additional District Judge-08 Central District : Tis Hazari Courts Delhi.
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