Bangalore District Court
M/S Fullpower vs M/S Skylark Mansions Pvt Ltd on 22 February, 2025
1 O.S.No.4738/2017
KABC010171422017
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 22nd day of February, 2025
O.S.No. 4738/2017
Plaintiffs: 1. M/s. Fullpower,
A Partnership Firm,
having its Registered office at
No.6, Sucharita 36,
Harris Road, Benson Town,
Bengaluru 560 046..
R/by its Partners :
Nikhil Sardesai &
Prashant Vastrad.
2. Nikhil Sardesai,
Aged about 33 years,
S/o. Shankargouda L. Sardesai,
R/at No.24, Mrutunjay Nagar,
Tilakwadi,
Belgaum District 590 006.
3. Prashant Vastrad,
Aged about 33 years,
S/o. Ashok Vastrad,
R/o. Sumachandra Nivas,
Vidyagiri Kittur Post,
Belgaum District 591 115.
(By Sri. S.R. Advocate)
2 O.S.No.4738/2017
-Vs.-
Defendants: M/s. Skylark Mansions Pvt. Ltd.,
Skylark Chambers,
Ulsoor Raod,
Bengaluru 560 042.
R/by : Omar Sheriff,
Director, Marketing.
(By Sri. A.E.H.D Advocate)
12/7/2017
Date of Institution of the suit
Recovery
Nature of the suit
Date of the commencement
16/1/2021
of recording of the Evidence.
Date on which the judgment 22/2/2025
is pronounced.
Year/s Month/s Days
Total duration 07 07 10
JUDGMENT
1. This is a suit filed by the plaintiff for the relief of recovery of a sum of Rs.8,51,812/- for the month of September 2015 to January 2016 with interest at the rate of 24% p.a. from the month of January 2016 till its realization based upon the Agreement dated 17/2/2015 along with Court Costs etc.,
2. The brief facts of the case of the plaintiff is that, plaintiff 2 & 3 are the Partners of Plaintiff No.1 Partnership Firm and that, it was engaged in the services of brand promotion, advertisement 3 O.S.No.4738/2017 media campaign and event management and that the Defendant company which was running a business of Real Estate & Infrastructure had approach the Plaintiff to avail their services on retainer-ship with regard to providing brand promotion, advertisement media campaign and events for Defendant company. And accordingly, the Defendant company is said to have entered into an Agreement dated 17/2/2015 with Plaintiff on a retainer-ship basis for a monthly fee of Rs.1,65,000/- with service taxes thereupon. And agreement period was to commence from 16/2/2015 and would exists till 16/1/2016.
3. It is also the case of the Plaintiff that the Defendant company which was aware of Clause 3(1) of the Contract was suppose to pay a monthly retainer fee, which is fixed and the agency will earn the fee as billed at Rs.1,65,000/- plus tax. And this being the case, during the course of the agreed services, the Plaintiffs invested considerable financial resources to cater to the Defendant's specific requirement in terms of the services availed by the Defendant and investment made thereupon. The payment in lieu of retainership to the tune of Rs.1,65,000/- along with service tax were made promptly the first few months up to March 2015. and that the Defendant has made the last prompt 4 O.S.No.4738/2017 payment in the month of July 2015 and subsequently no payments have been made in favour of the Plaintiff from September 2015. And that, noting the said position of the Defendant, the Plaintiff seems to have shown leniency in granting extension of time to make the payments. On 9/11/2015 Plaintiff is said to have received an email from the Defendant stating that going forward the Defendant would like to continue to make payment on job assignment basis and not on retainer basis. Though the work was done, the Defendant further contended that since no jobs were finalized from the Defendant for the month of October 2015, no payments would be made to the Plaintiff for the same. Further the Defendant has stated that, the retainership arrangement is not condusive to the Defendant. And thereby, altering the terms of Agreement was contrary to Clause 20(3) of the Contract and that the Defendant on 14/12/2015 is said to have sent another email in an untenable manner to the Plaintiff claiming an amount of Rs.1,84,800/ paid on 8/12/2015 as full and final settlement of their service, despite the fee being fixed with the Plaintiff for the pervious 5 months.
4. It is also contended by the Plaintiff that, in email the 5 O.S.No.4738/2017 Defendant is unilaterally said to have terminated the Contract with the Plaintiffs by contending that Fullpower was not on board as the Defendant advertising agency. And the said act of termination of contract on part of the Defendant was violative of Clause 19 of the Contract dated 17/2/2015. And thereby it also violated the mandatory provision of 2 months prior notice that was to be given by the Defendant or by the Plaintiff in case of termination of retainership Contract. And further contended that the Defendant company is liable for breach of terms of contract dated 17/2/2015 Under Section 72 and 73 of the Indian Contracts Act, and further the Plaintiff has sought the sum of Rs.8,51,812/- on the basis of the following chart ie., September to October 2015 including service tax @ 14% ie., Rs.3,79,500/- and for the period November and December 2015 including service tax @ 14.5% ie., Rs.3,77,850/- and further a sum of Rs.94,462/- for a period commencing from January 2016 for half month including service tax @ 14.5%. Therefore on these and other grounds the Plaintiffs have contended that the Defendant failed to act in terms of the Agreement dated 17/2/2015 and thereby the Plaintiff is said to have got issued a Legal Notice dated 6/8/2006 calling upon the Defendant to pay the dues of Rs.8,51,812/- for the month of August 2015 to January 2016 with 6 O.S.No.4738/2017 interest @ 24% p.a. from the date of receipt of the said notice. Further it is also contended that the Plaintiff is also said to have got issued another Legal Notice dated 6/2/2017 calling upon the Defendant to pay the dues of Rs.8,51,812/- for the month of August 2015 to January 2016 together with interest @ 24% p.a. commencing from 1/1/2016 till the date of realization within 15 months from the date of receipt of the said notice. Hence, based upon the cause of action that is said to have arisen on 17/2/2015 and subsequently on 6/8/2016 and 6/2/2017, the Plaintiff has approached this Court for the relief of recovery of a sum of Rs.8,51,812/- from the month of September 2015 to January 2016 with interest @ 24% p.a. from January 2016 till realization as per the terms of Agreement dated 17/2/2015.
5. The Defendant appeared through their counsel and have filed their Written Statement denying the entire averments of the plaint, casting strict burden of proof upon the Plaintiff, Defendants have contended that there is no cause of action to the suit. And also denied of Defendant having received any notice and also contended that the suit is not maintainable, that the Plaintiffs have not made out prima-facie case for granting of any relief and that the Plaintiffs have filed a false and a frivolous 7 O.S.No.4738/2017 suit and also contended that the Agreement dated 17/2/2015 which was the Defendant and the Plaintiff had entered into has been terminated during the month of August 2015 itself as per the discussion held between the Plaintiff and the Defendant in view of certain global crisis and marketing changes in the real estate business, market and infrastructure as mutually agreed and accepted by Plaintiff and Defendant. The Plaintiff and Defendant have further come to a conclusion that the Plaintiff will no longer be working on monthly retainer fee basis in future and that there would be no jobs from the month of October 2015 observing the 2 months prior notice of termination as per the terms of the Agreement as stated at para-19 of the Agreement dated 17/2/2015.
6. The Defendant further contended that the Plaintiff and Defendant were continued with the same relationship. And further contended that, Defendant had sent an email dated 9/9/2015 to the Plaintiff expressing the Plaintiff that the Plaintiff shall not work on retainer format and that there are no jobs finalized for the month of October 2015 on wards and thus the Defendant has terminated the Agreement dated 17/2/2015 which was entered into between the Defendant and Plaintiff, which fact 8 O.S.No.4738/2017 is said to have been admitted by the Plaintiff in his plaint averments. And further drawing the attention of this Court to the email address by this Defendant, Defendant has contended that the Defendant is no way responsible to pay a sum of Rs.8,51,812/- to the Plaintiff herein. And further contended that, Defendant had paid all the payments as claimed against the invoice of the Plaintiff herein. And on these and other grounds the Defendant has sought to dismiss the above suit.
7. Based upon the above pleadings of the parties, the learned Predecessor in the office has framed the following issues and additional issue :-
ISSUES
1. Whether the Plaintiff proves that the Defendant executed Agreement dated 17/2/2015?
2. Whether the Plaintiff further proves that the Defendant is due to pay a sum of Rs.8,51,812/- including service tax from September 2015 to half of month of January 2016?
3. Whether the Plaintiff is entitled for suit claim amount along with interest as prayed for? 9 O.S.No.4738/2017
4. What order or decree?
Additional Issue :
1. Whether the Plaintiffs prove that they are entitled for interest? If yes, at what rate and from which date?
8. The Plaintiffs in order to substantiate the issue that is casted upon Plaintiffs, examined Plaintiff No.3 namely Prashanth Vastrad as as PW.1 and reiterated the plaint averments and got marked Ex.P1 to P10 documents. Per Contra the defendant represented by its Director examined himself as DW.1 and got marked none of the documents.
9. Heard the learned counsel for the plaintiffs and the learned counsel for defendant herein. Perused the materials available on record.
10. My findings to the above Issues are as under:
Issue No.1 .. In the Affirmative Issue No.2 .. In the Affirmative Issue No.3 .. In the Affirmative Additional Issue : In the Affirmative Issue No.4 .. As per final order for the following: 10 O.S.No.4738/2017
REASONS
11. Issue No.1:- This issue is casted upon the plaintiff to prove that the defendant executed Agreement dated 17/2/2015. One of the Partners of the Plaintiff firm by name Prashanth Vastrad has examined himself as P.W.1, who is the Plaintiff No.3 and has sworn to the affidavit contending that, Plaintiff No.1 is the Partnership Firm, Plaintiff No.2 is its partner and that their firm was engaged in providing services of brand promotion, advertisement media campaign and events and that the Defendant company was running a business of Real Estate & Infrastructure including commercial residential and retain and that the Defendant company is said to have approached the Plaintiff and availed the services of the Plaintiff and thereby on the retainership with regard to providing brand promotion, advertisement media campaign and events for Defendant company and accordingly, the Defendant company is said to have entered into an Agreement dated 17/2/2015 on retainer- ship basis for a monthly fee of Rs.1,65,000/- with service tax and the period of Agreement would commence from 16/2/2015 to 16/1/2016. And that the Defendant was bound by the said Agreement including the Clause 3(1) of the Contract which provides for monthly retainer fee, which was fixed at 11 O.S.No.4738/2017 Rs.1,65,000/- including tax. And that, during the course providing agreed services by the Plaintiff, the Plaintiff is said to have invested considerable financial resources to cater to the Defendant's specific requirement in terms of the services availed by the Defendant and investment made in that regard which were borne out the resource of the Plaintiff and that the Defendant was due of a sum of Rs.1,65,000/- along with service tax up to March 2015, the Defendant is said to have made the payment. And subsequently the Defendant had defaulted in payment. Till July 2015 the payments were made by the Defendant and from the month of August 2015 taking the leniency of the Plaintiff, time was extended to make payment. And on 9/11/2015 the Defendant is said to have sent an email stating that the said payments would be made on the job and assignment basis and not on retainer basis. And thereafter on 14/12/2015 the Defendant is said to have sent an email claiming that the amount of Rs.1,84,800/- was paid as on 8/12/2015 as full and final settlement of their service, despite the fee not being paid for the Plaintiff for the pervious 5 months. This being the ocular evidence, it is necessary to look to the documentary evidence placed on record by the Plaintiff.
12 O.S.No.4738/2017
12. The Plaintiff has produced Ex.P1 to P10 documents. Ex.P1 is the Legal Notice issued by the Plaintiff in favour of the Defendant company through a counsel. Ex.P2 & 3 are the postal receipts. Ex.P4 is the RPAD acknowledgment. Ex.P5 is the Notarized copy of Deed of Partnership, whereby the P.W.1 one Prashanth Vasthrad is also shown as one of the partners of M/s.Fullpower. Ex.P6 is an email dated 9/11/2015 addressed by the Defendant company relating to the said terms of Agreement. Ex.P7 is another email dated 12/12/2015 acknowledging the receipt of email by the Plaintiffs. Ex.P8 is another email dated 14/12/2015 addressed by the Defendant company. Ex.P9 is the statement of account extract of the Plaintiff. Ex.P10 is the Agreement dated 17/2/2015.
13. For appreciation of this issue in hand, Ex.P10 needs a careful appreciation and perusal. This Agreement is executed as on 17/2/2015 whereby Skylark Mansions Pvt. Ltd., the Defendant herein, represented by its Director, Omer Shariff and Ms. Leela J, General Manager, Marketing & Branding have entered into Agency with the Plaintiff, a partnership firm with the name and designation "Fullpower". It also finds signature in the last page, whereby there is a Clause, which says rights and 13 O.S.No.4738/2017 obligations under this Agreement "Whereby the nature would continue beyond the termination or end in any other way of this Agreement shall survive the termination of this Agreement". Whereby one Prashanth Vastrad, Nikhil Sardesai have affixed their signatures on behalf of the Plaintiff firm "Fullpower". On the other hand one Omar Shariff, Director, Marketing and Ms. Leela J, General Manager - Marketing & Branding have affixed their signatures to the said Agreement on behalf of Defendant M/s. Skylark Mansions Pvt. Ltd., Therefore, on perusal of this document, the crucial document which is basis for the present suit in hand stands established. The Defendant though raised their defence on the ground that, they did not want to continue the Agreement due to global crises and on the reason that the Agreement is sought to be terminated. But the mere defence put forth by the Defendant goes to show that the Defendant have admitted this Agreement. And in their Written Statement they have not denied this Agreement dated 17/2/2015. Therefore, this issue No.1 stands answered in Affirmative in favour of the Plaintiffs.
14. Issue No.2 & Additional Issue No.1 : These issues are taken together for consideration since they are interconnected. 14 O.S.No.4738/2017 Issue No.2 relates to the burden of the Plaintiff to prove his entitlement for recovery of a sum of Rs.8,51,812/- including service tax from September 2015 to the half of the month of January 2016, along additional issue with regard to interest thereupon. The contention of the Plaintiff is that, the Defendant has made a last prompt payment in the month of July 2015 and subsequently no payment seems to have been made by the Defendant from the month of August 2015 and thereby the Plaintiffs seems to have shown leniency in granting extension of time to make payment on part of the Defendant. And that until 9/11/2015, the Plaintiff was not aware of the fact that the Defendant was switching over the service Agreement from retainership to job assignment basis and therefore until the month of November 2015, the Plaintiff was under the impression that the service rendered by the Plaintiff was on the basis of retainership. And therefore, to that extent the Plaintiff has probabalized its claim that the Defendant was due for a sum of Rs.1,65,000/- including the service taxes on the basis of retainership to the tune of Rs.1,65,000/- as per the Ex.P10 of the Service Agreement.
15. Further it is also crucial to note that, as per the said 15 O.S.No.4738/2017 Agreement, either of the parties were to call upon the other party terminating the Agreement or the service contract by causing 2 months prior notice. In the case in hand, the first email issued by the Defendant is dated 9/11/2015. Therefore, if it was to be considered as 2 months prior notice to the said Agreement, the said notice of altering the said services contract would commence from 09/01/2016. Therefore the said requirement as agreed between the parties are been admitted by both the Plaintiff and Defendant herein. The relevant Clause would be Clause 19 wherein it is titled as Term and Termination. For brevity, the said relevant Clause is hereby culled out as under :-
"This Agreement is valid for a period of one year commencing from 17/02/2015 and ending on 17/01/2016. It is understood that this Agreement shall automatically stand terminated after the efflux of time as stipulated. This Agreement may also be terminated by either of the parties by giving a 2 months prior notice in writing by either party. In the event of termination of this Agreement, agency shall immediately cease all work and shall incur no further expenses chargeable to the client. Client will have to pay agency the monthly fees till the date of termination of this 16 O.S.No.4738/2017 Agreement."
16. Therefore, going by this term, the Defendant for the first time has issued a notice as on 9/11/2015 at 4.27 p.m. by way of an email. Further, it is also crucial to note that the terms of the said email does not terminate as a whole. In turn, requisition is made by the Defendant whereby the Plaintiff is called upon to comply with the service not on retainership basis but on the basis of job assessment. Be it as it may. As per the terms of the said Agreement a prior notice which was required as per Clause- 19 of the Service Agreement ie., Ex.P10, would commence only from 9/1/2016, till then the said term would proceed as per the terms agreed between the parties. Therefore, the Plaintiff has probabalized its entitlement for retainership fee including the service charges as admitted in the said Agreement as well as in the Cross-examination of DW.1. Wherein the Defendant has admitted as under :-
" It is true to suggest that after the raising of invoice, the payment was to be made within 10 days. It is true to suggest that as per Clause 19 at Ex.P10, either party had an option to put an end to the contract by giving 2 months 17 O.S.No.4738/2017 prior notice in writing".
17. And further, it is also admitted that, the last payment was made in the month of August 2015 according to the Defendant himself. And it is also crucial to note the admission of DW.1. Wherein it is stated that, "it is true to suggest that Clause 20(3) of Ex.P10 if there is any change in the terms of the Agreement, it would be effected only by writing by mutual consent of both parties".
18. Therefore, in terms of the same, the Plaintiff has probabalized that, the Defendant was due of a sum of Rs.1,65,000/- from the period July 2015. And to counter the case of the Plaintiff, the Defendant has not placed any document to show that there was a payment being made by the Defendant. Merely the Defendant has sent an email to the Plaintiff contending that, pending payment of Rs.1,84,800/- is being made as on 14.12.2015. But, going by the terms of the said Agreement, the Defendant has only called upon the Plaintiff to modify the service of Agreement from retainership to job assignment basis, which needs two months prior notice and also mandatorily it needs to have consent from the other side, was 18 O.S.No.4738/2017 issued on 9/11/2015.
19. It is also crucial to note that, this Plaintiff has called upon the Defendant by causing a Legal Notice vide Ex.P1, whereby the demand of the Plaintiff stating that calling upon the Defendant to settle all the outstanding due of a sum of Rs.10,36,612/- along with interest @ 24% within 15 days is being called upon the Defendant. The said Defendant has also duly acknowledged the receipt of the said notice by virtue of Ex.P4. But till date the said Legal Notice is not being replied by the Defendant. This fact also goes to show that the Defendant has admitted the contents of the Legal Notice. Therefore, in terms of the said aspect as well, the Plaintiff has probabalized issue No.2.
20. Moving to the interest aspect. Based upon the Ex.P10, it is an agreement for services availed by the Defendant which had engaged in the Real Estate and Infrastructure and the nature of service provided by the Plaintiff was advertisement, brand promotion, media campaign etc., which is an Agreement, which is based on commercial transaction. On perusal of Ex.P10, there is no such agreement with regard to the interest 19 O.S.No.4738/2017 thereupon. Noting that the Plaintiff having not placed any document with regard to the interest being agreed between the parties herein, going by the assistance and guidance of Section 34 of the Civil Procedure Code and also looking to the established Commercial Practice existing in the present situation, the interest at the rate of 8% is awarded to the Plaintiff based upon the due amount as claimed by the Plaintiff. Hence, the same is answered at the rate of 8% p.a. from the date of the suit till its realization.
21. Issue No.3 : In furtherance of my findings to above issue, the Plaintiff under issue No.1, 2 and additional issue has probabalized its claim. The Plaintiff has approached this Court for recovery of a sum of Rs.10,36,612/-, but the Plaintiff has got the same amended, whereby the Plaintiff has sought a direction to the Defendant to pay the outstanding due of Rs.8,51,812/-, for the month of September 2015 to January 2016 together with the interest of 24% p.a. from the month of January 2016. Based upon my findings to issue No.1 to 3 and additional issue No.1, the Plaintiff has probabalized its entitlement for the said relief as sought for by the Plaintiff. Accordingly, issue No.3 is answered yes, entitled.
20 O.S.No.4738/2017
22. Issue No.4 : In furtherance of my findings to above issues I proceed to pass the following :
ORDER The suit of the Plaintiff for recovery of a sum of Rs.8,51,812/- is hereby decreed with cost. Accordingly the Plaintiff is entitled to recover the said amount of Rs.8,51,812/- with interest at the rate of 8% p.a. from the date of the suit till its realization from the Defendant.
In terms of the same, Office to draw a decree accordingly.
(Dictated using Dictaphone, typed by Stenographer-G1, corrected and then pronounced by me, in the Open Court, on this the 22nd day of February, 2025) (A.M. NALINI KUMARI) XIV Addl. City Civil & Sessions Judge, Bengaluru.21 O.S.No.4738/2017
ANNEXURE List of witnesses examined for the Plaintiff's side:
PW.1 : Prashanth Vastrad List of exhibits marked for the Plaintiff's side:
Ex.P.1 Copy of notice dated 6/2/2017 Ex.P.2 & 3 Postal Receipt Ex.P.4 Postal acknowledgment Ex.P.5 Partition deed Ex.P.6 to 8 Emails and reply Ex.P.9 HDFC bank account extract Ex.P.10 Agreement
List of witnesses examined on behalf of Defendant's side:
DW.1 : Omar Shariff List of exhibits marked on behalf of the Defendant's side: NIL (A.M. NALINI KUMARI) XIV Addl. City Civil & Sessions Judge, Bengaluru.