Delhi District Court
Mr. Irshad Yunus Dhorjiwala Prop. Of M/S ... vs M/S Sbc Minerals Pvt Ltd Through Its ... on 28 September, 2024
IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 402/2022
CNR No. DLSH01-004312-2022
MR. IRSHAD YUNUS DHORJIWALA
S/o Mr. Yunus Dhorjiwala
Proprietor of M/s Ruby Infra Trade
23, Shalimar Market, Ring Road,
Surat, Gujarat.
......Plaintiff
Versus
M/s SBC MINERALS PVT. LTD.
Through its Directors/ Authorized Person
At F-4, First Floor, Manish Chambers,
Suraj Mal Vihar,
Delhi-110 092.
......Defendant
AND
COUNTER CLAIM
CS (Comm.) No. 723/2022
CNR No. DLSH01-008361-2022.
M/s SBC MINERALS PVT. LTD.
Through Its AR Sh. Niraj Kanodia
At F-4, First Floor, Manish Chambers,
Suraj Mal Vihar,
Delhi-110 092.
......Counterclaimant
Vs.
M/s RUBY INFRA TRADE
Proprietor Mr. Irshad Yunus Dhorjiwala
23, Shalimar Market, Ring Road,
Surat, Gujarat. ......Non-claimant
CS (Comm) 402/2022 page 1 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
CS (Comm)723/2022 (Counterclaim)
Date of Registration of main suit : 01.07.2022
Date of Registration of counterclaim : 21.12.2022
Date of final arguments : 10.09.2024
Date of Judgment : 28.09.2024
JUDGMENT
1. The plaintiff Sh. Irshad Yunus Dhorjiwala has filed the present commercial suit bearing CS (Comm.) 402/2022, against the defendant, for recovery of a sum of Rs.69,00,000/- (Rs. Sixty Nine Lakhs Only), alongwith pendentelite and future interest @24% per annum, in the capacity of the proprietor of M/s Ruby Infratrade.
2. It is stated in the plaint that the plaintiff is a commission agent and was dealing in coal of different specifications and quality and the defendant is a private limited company, with whom the plaintiff was having business dealings for the last many years.
3. It is further stated in the plaint that Sh. Tribuvan Dalmia, Director of the defendant, vide offer dated 02.11.2018, offered to sell 7500 MT of Australian Coal, and the plaintiff accepted the offer and started making payments to the defendant, and accordingly, the purchaser M/s Amit Pomeg Tech Pvt. Ltd. Started lifting the coal.
4. It is further stated in the plaint that the plaintiff paid an advance amount of Rs.4,19,55,358/-, to the defendant, pertaining to the sale of the aforesaid 7500 MT of Coal. It is further stated that during the period w.e.f. 02.11.2018 to 20.12.2018, 5022.48 CS (Comm) 402/2022 page 2 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) MT of Coal was lifted and on account of oral understanding between the plaintiff, the defendant, and the purchaser, the condition of lifting the Coal within a maximum period of 15 days, was orally eased/lifted by the defendant and the defendant accepted the payment from time to time, as and when the Coal was lifted, beyond the period of stipulated time and the defendant had not raised any objection for the same.
5. It is further stated in the plaint that on 20.12.2018, the defendant sent a communication to the purchaser M/s Amit Pomeg Tech Pvt. Ltd., and raised frivolous debit notes on baseless calculations. It is further stated that though the stipulation of lifting of Coal was eased, with the oral understanding between the parties, but to maintain healthy business relation, the purchaser was ready to pay the plot rent. But, subsequently, the defendant had not allowed the plaintiff to lift the remaining Coal and sold the remaining quantity of 2477.52 MT of Coal to some other party, without the consent and permission of the plaintiff or the purchaser.
6. It is further stated in the plaint that the plaintiff had already made the payment to the defendant, and therefore, the defendant was only the custodian of the same, and accordingly, the purchaser of the plaintiff approached the defendant and requested them either to make available the balance quantity of Coal or to refund the advance payment, but of no avail.
7. It is further stated in the plaint that there was no response from the defendant, and therefore, the plaintiff was left with no other alternative, but to demand the refund of the advance CS (Comm) 402/2022 page 3 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) payment from the defendant. It is further stated that the defendant is not refunding the amount to the plaintiff, despite repeated requests and demands, and therefore, a legal notice dated 06.12.2021, was served upon the defendant. But, a false and frivolous reply to the same was given by the defendant.
8. It is further stated in the plaint that due to the aforesaid acts and deeds of the defendant, the plaintiff has suffered mental pain and agony, for which, the defendant is also liable to pay a sum of Rs. 5 Lakhs towards damages.
9. It is further stated in the plaint that the defendant is liable to pay the total sum of Rs.69,00,000/-, (which includes the excess Advance amount of Rs.44,17,584/-, damages worth Rs.5,00,000/- and interest of Rs.19,91,267/- @12% per annum w.e.f. June 2019 to May 2022), to the plaintiff. It has been prayed that the suit of the plaintiff may be decreed, with pendentelite and future interest @ 24% per annum, till realization of the decretal amount, with costs.
10. After filing of the present suit, the summons of the suit for settlement of issues were duly served upon the defendant and accordingly, in compliance, the defendant filed his written statement, on 15.10.2022, wherein, it is stated that the defendant is not liable to pay any amount to the plaintiff. A counterclaim was also filed, on behalf of the defendant, on 15.10.2022, and the same was registered as a separate commercial suit bearing No. CS (Comm.) 723/2022.
CS (Comm) 402/2022 page 4 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
11. It is pertinent to mention here that the plaintiff had initially filed the present suit against the defendant, alongwith one of its directors, as defendant No.2 and the defendant No.2 also filed his separate written statement, alongwith an application under Order VIII Rule 1 r/w Section 151 CPC and a separate application under Order I Rule 10(2) CPC, on 15.10.2022. The said application of the defendant No.2, under Order I Rule 10(2) CPC , dated 15.10.2022, was dismissed vide order dated 06.03.2023. However, on 20.11.2023, an application under Order VI Rule 17 & Order I Rule 10(2) r/w Section 151 CPC, was filed on behalf of the plaintiff, and on the request of the Ld. Counsels for the parties, the name of defendant No.2 was deleted from the array of parties.
12. In its written statement, it is stated by the defendant that the defendant was having business dealings with the plaintiff for the last couple of years, regarding purchase and supply of Coal of different varieties and specifications, on mutually agreeable rates and terms. It is further stated that in the month of October/November, 2018, a deal of supply of 7500 MT of Australian Coal, to the plaintiff, was struck between the parties, at mutually agreeable terms and rate, vide email dated 02.11.20218.
13. It is further stated in the written statement that as per the terms & conditions of the deal, vide email dated 02.11.2018, 7500 MT of Australian Coal, was to be lifted from the port, by the plaintiff or his purchaser, within 15 days of confirmation of the business deal, i.e. till 18.11.2018. It is further stated that vide CS (Comm) 402/2022 page 5 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) revert email, dated 02.11.2018, the plaintiff had validated/confirmed / affirmed, the deal with respect to the said 7500 MT of Australian Coal and the rates/prices were also confirmed, and accordingly, the said 7500 MT of Australian Coal was to be purchased by the plaintiff for a total cost of Rs.5,60,66,248/-.
14. It is further stated in the written statement that the plaintiff had paid only an amount of Rs.4,19,55,358/-, in two installments, and thereafter, the plaintiff and its purchaser started lifting the Coal, as per the terms & conditions of the business deal.
15. It is further stated in the written statement that defying the terms and conditions of the business deal, the purchaser of the plaintiff M/s Amit Pomeg Tech Pvt. Ltd., initially lifted only 5022.48 MT of Coal, till 17.11.2018, leaving the balance quantity of 2477.52 MT. It is further stated that the timeline was imperative for both the parties, as monthly ground rent was to be paid for every month of delay, for using the port, after 17.11.2018, @Rs.30/- per MT. Therefore, w.e.f. 17.11.2018 to 16.12.2018, a monthly rent of Rs.1,58,208/- had accrued for the left quantity of 2477.52 MT of Coal.
16. It is further stated in the written statement that the defendant requested the plaintiff to clear the pending dues and to lift the remaining quantity of Coal. But, the plaintiff and his purchaser had lifted only 5022.48 MT of Coal and had left behind 2477.52 MT of Coal, on which, a further ground rent had accrued for the period w.e.f. 17.12.2018 to 16.01.2019. It is further stated that the ground rent continued to accrue against the CS (Comm) 402/2022 page 6 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) plaintiff till 16.05.2019, but neither the plaintiff nor his purchaser bothered to clear the pending dues, and therefore, after 16.05.2019, the defendant was left with no other option, but to sell the remaining quantity and to re-cover its dues of ground rent and pending payments, alongwith interest.
17. It is further stated in the written statement that the ground rent of Rs.5,48,583/- had accrued for the period w.e.f. 17.11.2018 to 16.05.2019, solely because of uncalled business conduct of the plaintiff and its purchaser.
18. It is further stated in the written statement that the defendant had also issued and shared the debit notes with the plaintiff, with regard to the accruing and pending ground rent, but of no avail. It is further stated that after the payment of Rs.4,19,55,358/-, the remaining amount of Rs.1,41,10,890/- was required to be paid by the plaintiff, on which, interest @15% per annum, for 180 days has been quantified at Rs.10,96,010/-. It is further stated that the aforesaid remaining amount was never paid by the plaintiff, to the defendant, despite numerous reminders and therefore, the defendant has incurred huge losses, due to illegal and unethical conduct of the plaintiff.
19. It is further stated in the written statement that vide emails dated 28.03.2019, 14.05.2019 and 16.05.2019, the defendant had specifically asked the plaintiff to clear the pending dues/debit notes. But, no reply was received from the plaintiff, and therefore, the defendant was left with no option, but to terminate the said business deal and to sell off the remaining quantity of 2477.52 MT of Coal, at the port, and to mitigate his losses. It is CS (Comm) 402/2022 page 7 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) further stated that during the said period of six months, the market rate of Coal had decreased and the defendant had sold the remaining quantity of Coal at huge losses, for the sole reason that the plaintiff and his purchaser had not acted bonafidely.
20. It is further stated in the written statement that due to unwarranted and unfair actions of the plaintiff, the defendant had suffered losses worth Rs.13,25,927, and therefore, the total amount to be recovered from the plaintiff has been quantified at Rs.21,34,125/-, inclusive of interest @18% per annum. It has been prayed that the suit of the plaintiff be dismissed with heavy costs.
21. The defendant has also filed its counterclaim alongwith its' written statement on 15.10.2022, and the same was registered separately as a separate suit, bearing CS (Comm.) No.723/2022, wherein, the defendant has claimed the recovery of a sum of Rs.31,34,125/- (including principal amount of Rs.13,25,927/-; interest of Rs.8,08,198/- @18% per annum for 1236 days and compensation of Rs.10,00,000/-). In the counterclaim, bearing CS (Comm.) No. 723/2022, the defendant has reproduced the entire contents of its written statement, filed in the main suit bearing CS (Comm.) No. 402/2022. It has been specifically prayed that the respondent/plaintiff is liable to make the payment of a total amount of Rs.21,34,125/- ( principal amount of Rs.13,25,927/- with interest of Rs.8,08,198/-), alongwith compensation of Rs.10 Lakhs, to the counterclaimant/defendant.
22. The written statement to the counterclaim of the defendant was also filed on behalf of the plaintiff, in CS (Comm.) CS (Comm) 402/2022 page 8 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) 723/2022, wherein, it is stated that the defendant/counterclaimant is not entitled for any relief, as claimed in the counterclaim, and the counter claim is liable to be dismissed with heavy costs. It has been denied that the counterclaimant/defendant has suffered harassment or mental agony or damages in his business, due to filing of the suit by the plaintiff. The plaintiff has also denied the contents of the counterclaim, as well as the written statement and has reiterated and reaffirmed the contents of his plaint in CS (Comm.) 402/2022. However, it is further stated that the stipulated period of 15 days, for lifting the Coal was mutually extended and the counterclaimant/ defendant had kept on issuing the debit notes and other emails in clandestine manner and when the plaintiff/non-claimant contacted the defendant/ counterclaimant, he was told that the debit notes and emails were issued in routine manner, to meet the requirement/formalities of tax liabilities, such as income tax and GST, and therefore, on the assurances of the defendant/ counterclaimant, the plaintiff/non- claimant had not replied to these emails. It is further stated that in reply to the emails/debit notes, the purchaser M/s Amit Pomegrade had offered to pay the ground rent. But, the defendant had claimed exorbitant amount. It is further stated that the defendant/counterclaimant has itself flouted the business norms and has filed a false and frivolous counterclaim, against the plaintiff/non-claimant, and therefore, the counterclaim is liable to be rejected, outrightly. The plaintiff/ non-claimant has also denied the claim of interest @18% per annum and has prayed that the counterclaim be dismissed with costs.
CS (Comm) 402/2022 page 9 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
23. On 18.04.2023, the first case management hearing was conducted and from the pleadings of the parties, the following issues were framed, as under:
1. Whether the plaintiff is entitled to claim/recover an amount of Rs.69,00,000/- from the defendant, as claimed in the plaint, (CS (COMM) No. 402/2022) ? OPP
2. Whether the plaintiff is entitled to claim interest from the defendant? If so, at what rate and for which period (CS (COMM) No. 402/2022) ? OPP
3. Whether the defendant, herein, is entitled to claim/recover an amount of Rs.13,25,927/- as principal amount from the plaintiff herein, as claimed in the counter claim bearing (CS COMM No.723/22) ? OPP
4. Whether the defendant, herein, is entitled to claim the interest of Rs.8,08,198/- from the plaintiff, herein, as claimed in the counter claim bearing (CS COMM No.723/22) ? OPP
5. Whether the defendant herein is entitled to claim/recover the compensation of Rs.10,00,000/- from the plaintiff, herein, as claimed in the counter claim bearing (CS COMM No.723/22) ? OPP
6. Relief.
24. Vide order dated 18.04.2023, both the suits were also clubbed together, for further trial and CS (COMM) 402/2022 was treated as the main suit. It was further directed that the evidence shall be led by both the parties in CS (COMM) 402/2022. Vide order dated 18.04.2023, with the consent of the parties, a local commissioner was also appointed to record the evidence of the parties, and accordingly, the Ld. Local Commissioner recorded the evidence of the parties and submitted the record of evidence, alongwith his report, in the court, on 31.05.2023.
CS (Comm) 402/2022 page 10 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
25. On 31.05.2023, an application was filed on behalf of the defendant under Order XVI Rule 151 CPC, for re-summoning of his witnesses. The said application was allowed by the Court, vide order dated 31.05.2023 and another opportunity was granted to the defendant to examine its remaining witnesses, before the court. Accordingly, on 19.08.2023, the remaining witness of the defendant was examined and his cross-examination was concluded on 21.09.2023. Thereafter, the matter was adjourned for final arguments.
26. During the trial, the plaintiff has examined himself as PW-
2. He has also examined his brother Sarfraj as PW-1. On the other hand, the defendant has examined Sh. Kumar Suraj, its Jr. Accountant, as DW-1, Sh. Niraj Kanodia, its Authorized Representative, as DW-2, its director, Sh. Tribhuvan Dalmia, as DW-3 and Sh. Ankit Jangid, Sr. Officer from M/s Wonder Cement Ltd., as DW-4.
27. After completion of trial, the final arguments were addressed by Sh. K.K. Gambhir and Ms. Anita Dwivedi, Advocates, for the plaintiff and Sh. Bhupinder M. Sharma and Sh. Aditya Kumar Yadav, Advocates, for the defendant.
28. During the course of final arguments, it was argued by the Ld. Counsels for the plaintiff that an agreement dated 02.11.2018, vide email Ex.PW1/A, was executed between the parties, regarding the supply of 7500 MT of Australian Coal, by the defendant to the plaintiff, at the agreed rate and the plaintiff CS (Comm) 402/2022 page 11 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) had made a payment of Rs.4,19,55,358/- only to the defendant. But, the time period for completion of the agreement dated 02.11.2018, was orally extended between the parties, by mutual agreement, for an unspecified period. However, it was admitted that the payment was made by the plaintiff to the defendant, only for 5000 MT of Australian Coal and the remaining payment was to be made by the plaintiff, as and when the remaining 2500 MT of Australian Coal, was to be lifted. It was further admitted that remaining quantity of 2477.52 MT of Australian Coal was never lifted by the plaintiff.
29. It was also argued by the Ld. Counsels for the plaintiff that the agreement dated 02.11.2018, vide email Ex.PW1/A, is an admitted document of the parties and the payment of Rs.4,19,55,358/- is also not in dispute. It was further argued that the defendant was deducting the ground rent and interest @15% per annum, on the delayed payments, as per the mutual agreement, and therefore, the plaintiff had complied all the terms & conditions of the agreement Ex.PW1/A. They have further argued that there was no fixed time period for lifting of the remaining 2500 MT of Australian Coal. But, the same was to be lifted by the plaintiff within a reasonable time. It was further argued by the Ld. Counsels for the plaintiff that the defendant had illegally sold the remaining 2500 MT of Australian Coal on 16.05.2019, without any prior permission or the consent of the plaintiff, and therefore, the defendant had breached the terms and conditions of the agreement, Ex.PW1/A.
30. The Ld. Counsels for the plaintiff have further argued that CS (Comm) 402/2022 page 12 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) the defendant had preferred the counterclaim, without resorting to the provisions of Section 12A of the Commercial Courts Act, 2015, and therefore, in view of the various judgments of the Hon'ble Supreme Court, as well as the Hon'ble High Court of Delhi, the counterclaim of the defendant is not maintainable and is liable to be rejected under Order VII Rule 11 CPC, for want of compliance of Section 12A of the Commercial Courts Act, 2015.
31. The Ld. Counsels for the plaintiff have further argued that the witnesses of the plaintiff have proved the entire case of the plaintiff, and therefore, the suit of the plaintiff may be decreed with costs and interest and the counterclaim of the defendant be rejected. The Ld. Counsels for the plaintiff have also filed their written arguments.
32. On the other hand, the Ld. Counsels for the defendant have argued that the terms & conditions of the agreement, Ex.PW1/A, were not complied by the plaintiff and the plaintiff was guilty of breach of the agreement, Ex.PW1/A. They have further argued that the plaintiff was required to make the entire payment for 7500 MT of Australian Coal, within a maximum of 15 days of confirmation of the agreement, on 02.11.2018. But, they made payment only for about 5000 MT of Australian Coal.
33. The Ld. Counsels for the defendant have further argued that the remaining 2500 MT of Australian Coal, was never lifted by the plaintiff, as per the agreement Ex.PW1/A, and therefore, several emails were sent to the plaintiff, asking him to lift the remaining 2500 MT of Australian Coal, but, the plaintiff has not replied. It was further argued by them that till May, 2019, the CS (Comm) 402/2022 page 13 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) rate of Australian Coal had decreased, and therefore, the defendant was constrained to sell the same to M/s Wonder Cements Ltd., at a reduced price, due to which it suffered huge losses.
34. It was further argued by the Ld. Counsels for the defendant that the emails sent by the defendant were never replied by the plaintiff, and due to decrease in the price of the Australian Coal, the defendant was constrained to sell the remaining quantity to M/s Wonder Cement Ltd..
35. The Ld. Counsels for the defendant have further argued that the witnesses of the defendant have proved the entire defence/counterclaim of the defendant, and therefore, the claim of the plaintiff be rejected and the counterclaim of the defendant may be decreed with interest and costs. The Ld. Counsels for the defendant have also filed their written arguments and have also relied upon the following judgments, in support of their contentions :
(i) 'Jag Singh vs. Brijlal', reported as, '(1964) 2 SCR 145';
(ii) 'Gobardhan Das Kailasnath vs. Collector of Mirzapur', reported as, 'AIR 1956 ALL 721';
(iii) 'Erroll Mackay vs. Maharaja Dhiraj Kameshwar Singh', reported as, 'AIR 1932 PC 196';
(iv) 'Nimba Lotu Patil vs. Motiram Uka Patil', reported as, 'AIR 1917 Bom 234';
(v) 'Bungo Steel Furniture (P) Ltd. vs. UOI', reported as, 'AIR 1967 SC 378';
(vi) 'H.J. Baker and Bros. Inc. vs. The Minerals and Metals Trade Corporation Ltd (MMTC)', passed by the Hon'ble Supreme Court of India, in Civil Appeal No. 2437 of 2010;
CS (Comm) 402/2022 page 14 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
(vii) 'The Firm Styled G.L. Kilikar vs. The State of Kearala', reported as, 'AIR 1971 SC 1196';
(viii) 'Timblo Irmaos Ltd. vs. Jorge Anibal Matos Sequeira and Ors.', reported as, 'AIR 1977 SC 734';
(ix) 'R.K. Malik vs. Kiran Pal', reported as, '(2009) 14 SCC 1';
(x) 'BR Herman and Ors. vs. Asiatic Steam Navigation Co.
Ltd. And Ors.', reported as, 'AIR 1941 Sind 146';
(xi) 'Swarnam Ramchandran and Ors. vs. Aravacode Chakungal Jayapalan', passed by the Hon'ble Supreme Court in Civil Apeal No. 4527 of 2000';
(xii) 'Standard Castings Pvt. Ltd. vs. Test Equipment', passed by the Hon'ble High Court of Delhi, in Sui No. 1068 of 1982, dated 06.02.1997.
36. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also perused the written arguments filed by the Ld. Counsel for the parties. I have also perused the judgments cited by the Ld. Counsels for the defendant. My findings on the various issues are as under:
Issue No. 1Whether the plaintiff is entitled to claim/recover an amount of Rs.69,00,000/- from the defendant, as claimed in the plaint, (CS COMM No. 402/2022) ? OPP
37. The burden to prove this issue lies on the plaintiff and in support of his contentions, the plaintiff has examined himself as CS (Comm) 402/2022 page 15 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) PW2. He has filed his affidavit, Ex.PW2/1, wherein, he has re- produced the entire contents of his plaint. It is reiterated in the affidavit that he is a Commission Agent and was dealing in Coal of different specifications and quality, for the last many years. He has further reiterated that the defendant offered to sell 7500 MT of Australian Coal, vide Offer dated 02.11.2018 and after acceptance of the offer, he paid an amount of Rs.4,50,02,498.58p, towards entire cost of 7500 MT of coal. It is further reiterated that during the period w.e.f. 02.11.2018 to 20.12.2018, only 5000 MT of coal was lifted by the purchaser and on account of mutual understanding between the parties, the condition of lifting of coal within 15 days, was orally eased/relaxed and the defendant accepted the payment from time to time, even after the stipulated period of 15 days. The copy of the agreement between the parties vide e-mail dated 02.11.2018, and the confirmatory mail of the plaintiff, on the same day, have been proved on record as Ex. PW1/A. The e-mail dated 02.11.2018 regarding offer of purchase by the defendant and its confirmation by return mail, on the same date, are the admitted documents of the parties and have not been disputed.
38. Since the terms and conditions of the agreement, vide email dated 02.11.2018, Ex.PW1/A, are the bone of contention between the parties, the scanned copy of the said email, dated 02.11.2018, Ex.PW1/A, is reproduced below :
CS (Comm) 402/2022 page 16 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
39. From the above agreement vide e-mail Ex. PW1/A, it is clear that the plaintiff was required to make an advance payment of 10% of the total cost of 7500 MT Australian Coal, immediately after Order confirmation and the remaining 90% of the payment, was to be made, by him on "cash and carry" basis, but, within a maximum period of 15 days from the date of the CS (Comm) 402/2022 page 17 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) confirmation. The e-mail dated 02.11.2018, Ex. PW1/A, was sent by the defendant to the plaintiff at 1.38 p.m. and this order was confirmed by the plaintiff vide return mail on the same day, at about 4.13 p.m. All the terms and conditions were also accepted/confirmed and were reproduced in the confirmation mail by the plaintiff. This agreement is not in dispute.
40. In his affidavit, Ex. PW2/1, the plaintiff has reiterated that the defendant had accepted the payment, even after the stipulated period of 15 days and the defendant had not raised any objection for the same. The ledger account has been filed on record, as Ex.
PW1/C. This ledger account is also not objected by the defendant.
41. From the perusal of the agreement, Ex. PW1/A, vide e- mail dated 02.11.2018, it is clear that the plaintiff was required to make the entire payment of 7500 MT of Australian Coal, within a maximum period of 15 days, from the date of confirmation of the Order, Ex. PW1/A. Since, the plaintiff had confirmed the agreement Ex. PW1/A, vide his return mail on 02.11.2018 itself, it is clear that the entire payment was to be made by the plaintiff, on "cash and carry" basis, till 17.11.2018. From the terms and conditions, it is also clear that the maximum period of 15 days was prescribed for lifting of the entire coal, and for making the entire payment. It does not prescribe any term or condition for extension of time, for payment.
42. As per the affidavit, Ex. PW2/1, the plaintiff has paid only an amount of Rs.4,50,02,498.58p, instead of the entire payment of Rs.5,60,62,500/-.
CS (Comm) 402/2022 page 18 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
43. Perusal of the record further shows that after completion of the trial, the plaintiff has moved an application u/o VI Rule 17 r/w Section 151 CPC, on 20.04.2024 (I.A No. 01/24), during the final arguments, for incorporating the bifurcation of the claimed amount of Rs.69,00,000/-. The said application was allowed by this Court, vide order dated 15.07.2024, with following observations :
"9. Perusal of the record shows that the plaintiff has filed the present suit for recovery of an amount of Rs.69 Lakhs, wherein, it is stated that vide offer dated 02.11.2018, the defendant had offered to sell 7500 MT of Australian Coal, for which, an amount of Rs.4,50,02,498.58p was paid by the defendant and during the period w.e.f. 02.11.2018 to 20.12.2018, only 5000 MT coal was lifted by the purchaser.
10. Perusal of the contents of the present application shows that the plaintiff now intends to change the amount of advance payment of Rs.4,19,55,358/-, in respect of 5022.48 MT of coal, lifted by the plaintiff. In the original plaint, the plaintiff has mentioned the remaining quantity as 2500 MT instead of 2477.52 MT.
11. Perusal of the application further indicates that the period regarding the claim of interest of Rs.19,91,267/- w.e.f. June 2019 to May 2022, is to be incorporated in the plaint.
12. From the submissions of the Ld. Counsels for the parties and the material on record, it is clear that due to clerical mistakes, the quantity and the amount paid to the defendant in respect of the Australian Coal, lifted by the plaintiff have been mentioned wrongly in the plaint. Furthermore, the period of claimed interest has not been incorporated in the plaint.
13. In the considered opinion of this court, the incorporation of correct advance payment of Rs.4,19,55,358/- and the quantity of Australian Coal, lifted 5022.48 MT and the remaining quantity of Australian Coal 2477.52 MT and incorporation of the period for the claim of interest shall not change the very basic nature of the plaint. Since the plaintiff had already claimed a total consolidated amount of Rs.69 Lakhs from the defendant and has not changed the claimed amount, the proposed amendment in the plaint are hereby allowed, in the interest of justice, subject to imposition of a cost of CS (Comm) 402/2022 page 19 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) Rs.5,000/- on the plaintiff. Subject to payment of cost, the amended plaint be taken on record. The statement of truth in respect of the amended plaint shall also be filed by the plaintiff, within a period of one week from today. It is ordered accordingly.
IA/1/2024 is disposed of accordingly."
44. From the amended plaint, it is therefore, clear that the plaintiff had paid only an amount of Rs.4,19,55,358/-, instead of the entire payment of Rs. 5,60,62,500/-.
45. In his affidavit, Ex. PW2/1, the plaintiff has further stated that the stipulation of lifting of coal was eased with the mutual understanding of all the parties. But, the defendant did not allow the plaintiff to lift the remaining coal and without consent and permission of the plaintiff, the defendant had sold the remaining quantity of 2500 MT of coal to some other party, for which the plaintiff had already made the payment to the defendant. But, this contention of the plaintiff is contrary to his pleadings and the documents on record, since the plaintiff has paid only an amount of Rs.4,19,55,538/-, till 16.05.2019, the date on which the defendant sold the remaining 2477.52 MT of Australian Coal. During the cross-examination of the plaintiff, a copy of the ledger account was also put to him as Ex. PW2/D-2/5 and this document was admitted by the plaintiff as correct. From the perusal of this ledger account, it is clear that the plaintiff has paid only an amount of Rs.4,19,55,358/-, till 06.11.2018 and no further payment was made by him, after 06.11.2018.
46. During the trial, the plaintiff was also subjected to a lengthy cross-examination on behalf of the defendant and during CS (Comm) 402/2022 page 20 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) his cross-examination, the plaintiff has admitted that the terms and conditions of the agreement were confirmed by the parties on e-mails and both parties had agreed to abide by the same and were required not to act beyond the agreed terms and conditions. During his cross-examination, he has further admitted that as per the agreement, ex. PW1/A, the goods were required to be lifted by him, within a period of 15 days from the date of confirmation. He has also volunteered that, in case, there was some delay in lifting of the coal, beyond the period of maximum of 15 days, he was required to pay the ground rent and the ground rent was duly deducted by the defendant from his advance money, from time to time. He has further admitted, that there was no written communication, after 17.11.2018, that the period of 15 days will stand extended. He has further admitted that till the time, he continued to pay the ground rent in advance, he could lift the goods from time to time. He has further admitted that e-mails Ex. PW2/B- 2/1, were sent by the defendant to him, wherein, credit notes were shared regarding the ground rent. He has further admitted that the copies of the debit notes, along with the calculation sheet, pertaining to the ground, Ex. PW2/B, were also shared with him. He has further admitted that vide e-mails dated 20.03.2019 and 14.05.2019, he was informed to clear the pending dues and to lift the pending goods. The e-mails dated 20.03.2019 and 14.05.2019 have been proved on record as Ex. PW2/D-2/3 collectively.
47. The contents of admitted e-mail dated 20.03.2019 (28.03.2019), are re-produced below for ready reference, as CS (Comm) 402/2022 page 21 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) under :
48. The contents of the admitted e-mail dated 14.05.2019, are CS (Comm) 402/2022 page 22 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) also re-produced below for ready reference, as under :
CS (Comm) 402/2022 page 23 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
49. From the contents of the above noted admitted e-mails, it is clear that the plaintiff has failed to make the remaining payment, pertaining to the remaining 2477.52 MT of Australian Coal, till 16.05.2019, the date on which the said quantity of coal was sold by the defendant to M/s Wonder Cement Pvt. Limited.
50. During his cross-examination, PW1 has further admitted that he received the e-mail dated 16.05.2019, from the defendant, informing him about the sale of pending quantity of goods to a third party. He has further admitted that the copy of the debit note dated 25.05.2019, with regard to the sale of goods, to a third party, was also shared between the parties, through e-mail. This e-mail dated 16.05.2019 forming part of Ex. PW2/D-2/3 is also re-produced below for ready reference, as under :
* * * * * * CS (Comm) 402/2022 page 24 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
51. From this E-mail, it is clear that the plaintiff had failed to raise any objection and has also failed, either to lift the remaining 2477.52 MT of Australian Coal, or to make the remaining CS (Comm) 402/2022 page 25 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) payment to the plaintiff, till 16.05.2019. During his cross- examination, he has further admitted the receipt of this e-mail along with the debit note. He has also admitted that the debit notes Ex. PW-2/D-2/4, running into 8 pages, were the debit notes issued by the defendant with regard to the interest on the pending payments and the same were also shared by the defendant with him. He has further admitted that the copy of the ledger account Ex. PW2/D-2/5, running into 11 pages was also shared with him. He has finally admitted that the payment of about Rs.4,19,00,000/- approximately, was not the payment of the entire quantity of goods, which was agreed upon vide agreement Ex. PW1/A.
52. From the testimony of the plaintiff, it is clear that the plaintiff has not made the entire payment towards the purchase of 7500 MT of Australian Coal, at any point of time. The entire payment was to be made by the plaintiff within a maximum of 15 days of the Agreement, Ex. PW1/A, dated 02.11.2018, that is till 17.11.2018. But, despite lapse of more than six months, the plaintiff had failed to make the entire payment and had also failed to lift the remaining 2477.52 MT of Australian Coal, as per the terms and conditions of the Agreement, Ex. PW1/A.
53. It is the admitted case of the plaintiff that the remaining 2477.52 MT of Australian Coal was never lifted by the plaintiff despite e-mails dated 20.03.2019 (28.03.2019), 14.05.2019 and 16.05.2019. From the testimony of the plaintiff and the documentary evidence on record, it is therefore, clear that the plaintiff was himself responsible for the breach of agreement Ex.
CS (Comm) 402/2022 page 26 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) PW1/A and he failed to make the entire payment to the defendant within the stipulated period or even during the extended period till 16.05.2019. Therefore, the plaintiff is not entitled to claim any amount from the defendant, as claimed in the plaint.
This issue is therefore, decided against the plaintiff.
Issue No. 22. Whether the plaintiff is entitled to claim interest from the defendant? If so, at what rate and for which period (CS COMM No. 402/2022) ? OPP
54. The burden to prove this issue also lies on the plaintiff. In his affidavit, Ex. PW2/1, the plaintiff has again claimed the interest on the claimed amount of Rs.69,00,000/- @ 24% p.a. But, during his cross-examination, he has admitted that there was no mention of payment of interest @ 24% p.a., or any other rate, on the delayed payments. Furthermore, the Agreement, Ex. PW1/A does not mention the fact of any delayed payment. It only mentions the fact of entire payment within a maximum period of 15 days. Therefore, there is no clause in this agreement regarding the payment of interest on delayed payments. Therefore, in the absence of any clause in the Agreement Ex. PW1/A, regarding payment of interest, and in view of my findings on the issue No. 1, as discussed above, this issue is also decided against the plaintiff.
Issue No. 33. Whether the defendant, herein, is entitled to claim/recover an amount of Rs.13,25,927/- as principal CS (Comm) 402/2022 page 27 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) amount from the plaintiff herein, as claimed in the counter claim bearing (CS COMM No.723/22) ? OPP
55. The burden to prove this issue lies on the defendant (plaintiff in counter claim) and during the trial, the defendant has examined his Junior Accountant, Kumar Suraj, as DW1. During his examination, this witness has proved the account statements for the financial year 2018-19, vide e-mails dated 16.02.2019, 22.02.2019 and 18.03.2019. The said three a-mails have been filed on record as Ex. DW3/2 to Ex. DW3/4 respectively. This witness has further deposed that the debit notes no. 64,65 and 66 were sent to the plaintiff, regarding the ground rent and interest, vide e-mail dated 18.12.2018, Ex.DW1/1. This witness has further deposed that the debit notes no. 106 and 107 were sent to the plaintiff, regarding the ground rent and interest, vide e-mail dated 08.04.2019, Ex. DW3/5. This witness has further deposed that the debit notes no. 1, 2 & 3 were sent to the plaintiff, regarding the ground rent, interest and breach of contract, vide e- mail dated 19.06.2019, Ex. DW3/6.
56. In support of his contentions, the defendant has also examined its authorized representative, Neeraj Kanodia, as DW2. This witness has filed his affidavit, wherein, he has re-produced the entire contents of the written statement. This witness has also relied upon the various e-mails, debit notes and the ledger account, filed by DW1. During his cross-examination, this witness has admitted that after lifting of the coal, for the second time, by the plaintiff, the remaining quantity of coal left was only 2477.52 MT and its value as per the contract was CS (Comm) 402/2022 page 28 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) Rs.1,65,44,388/-. He has admitted that after adjusting the payment of the lifted coal, an amount of Rs.44,17,584/- was balance remaining with the defendant. He has further deposed that the ground rent for the month of November 2018, including GST was Rs.1,58,208/-. He has admitted that the Agreement Ex. PW1/A does not contain any clause regarding levy of GST on the ground rent. He has further admitted that the debit notes regarding ground rent for every month were duly adjusted and debited from the balance amount of the plaintiff. He has also admitted that there was no term or condition in the Agreement Ex. PW1/A that the defendant will charge interest on the balance amount of delayed payments. During his cross-examination, he has admitted that the plaintiff had never demanded the refund of his balance amount of Rs.44,17,584/-. He has further admitted that there was no document on record to show that there was downfall in the coal market, w.e.f. November, 2018 to May 2019. However, this witness has stated that e-mails were sent to the plaintiff regarding lifting of the balance quantity of coal, as there was downfall in the market. But, the e-mails did not offer the reduced rates to the plaintiff, on account of downfall in the market.
57. In support of its contentions, the defendant has also examined, one of its Directors, Sh. Tribhuvan Dalmia as DW3. In his affidavit, Ex. DW3/A, this witness has also re-produced the entire contents of his written statement. He has also relied upon the documents placed on record by DW2 Neeraj Kanodia. During his cross-examination, this witness has admitted that the CS (Comm) 402/2022 page 29 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) parties were bound by the terms and conditions of the Agreement, Ex. PW1/A. During his cross-examination, he has admitted that no written communication was sent to the plaintiff, prior to March 2019, to make the balance payment and to lift the remaining goods, and in default, the goods shall be sold by the defendant. He has further admitted that subsequent to the confirmation of the deal, no written communication was sent to the plaintiff regarding charging of interest over the balance payment. He has further admitted that an amount of Rs.44,17,584/- had remained with the defendant, as balance, after lifting of goods by the plaintiff on 25.11.2018. However, this witness has taken a new stand that this balance amount also contains the earnest money deposit of Rs.37,57,462/-. But, perusal of the agreement Ex. PW1/A, shows that this agreement does not contain any term or condition regarding the earnest money deposit.
58. During the trial, the defendant had also examined the Senior Officer, Material Department, from Wonder Cement Limited, Sh. Ankit Jangid, as DW4, who has deposed that Wonder Cement Limited had purchased 6000 MT Australian Coal from the defendant against purchase order dated 16.05.2019. This witness has further deposed that the said coal was supplied/picked through 150 transactions/consignments during the period w.e.f. 24.05.2019 to 03.06.2019, against various invoices and other documents. The purchase order dated 16.05.2019, has been placed on record as Ex. DW4/4 and the various invoices etc. have been placed on record as Ex. DW4/5.
CS (Comm) 402/2022 page 30 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) During his cross-examination, this witness has admitted that Wonder Cement Limited had received the goods from the defendant, as per the Purchase Order and subsequent communications.
59. From the testimonies of the witnesses and the documents on record, it is clear that the plaintiff has failed to make the entire payment to the defendant, as per the Agreement Ex. PW1/A, within 15 days of its confirmation, i.e. till 17.11.2018. But, the defendant had also extended the payment period and had also charged interest on the delayed payments and had also charged the ground rent till 25.05.2019. As per the ledger account Ex. PW2/D-2/5, which is the admitted document of the parties, the defendant has levied the ground rent and interest @ 15% p.a. on delayed payments on 15.12.2018, 17.12.2018, 06.02.2019, 31.03.2019 and again on 25.05.2019. From the testimonies of the witnesses, it is also clear that the defendant has sold the remaining 2477.52 MT of Australian Coal on 16.05.2019. In the considered opinion of this Court, when the defendant had already accepted/levied the ground rent and had also charged interest @ 15% p.a., on the delayed payment, it shall amount to a deemed extension of terms and conditions of the Agreement, Ex. PW1/A. The defendant, despite selling the remaining 2477.52 MT of Australian Coal, on 16.05.2019, has levied the ground rent and the interest on late payment, till 25.05.2019. Furthermore, an amount of Rs.31,31,158/- was still lying with the defendant, as excess amount, as on 01.04.2019. Therefore, it was not required for the defendant to sell the remaining 2477.52 MT of Australian CS (Comm) 402/2022 page 31 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) Coal, without the consent of the plaintiff. Furthermore, after levy of interest on late payments and charging of ground rent, which amounts to deemed extension of the agreement Ex. PW1/A, the defendant was supposed to bear the consequences of its extension. Therefore, it was for the defendant only, to bear its consequence, either in the form of any losses or any gain, from its' deemed extension.
60. During the course of final arguments, the Ld. Counsel for the plaintiff has also raised an objection that the defendant has failed to comply the provisions of Section 12-A of the Commercial Courts Act, 2015, and therefore, the counter claim of the defendant was also barred for non-compliance of the said provisions of Law.
61. It has been held by the Hon'ble High Court, in case titled as, 'M/s PSA Nitrogen Ltd. vs. M/s Maeda Corporation India & Ors.', passed in 'CM (M) No. 4/2019', dated 17.09.2019, as under :
4. Under the Commercial Courts Act, read with the provisions of the CPC, it is clear that a counter-claim isgoverned by the same rules as applicable to plaints. In commercial suits, in view of the provisions of Order VIII Rule 1 CPC and Order VIII Rule 10CPC, the Court cannot make an order extending time for filing of the written statement. This is also clearly settled by the judgement of the Supreme Court in SCG Contracts India Pvt.
Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors, Civil Appeal 1638/2019 (Decided on 12thFebruary, 2019).Order VIII Rule 6ACPCreads as under:
"(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of a counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or CS (Comm) 402/2022 page 32 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not;Provided that such counter-claim shallnot exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints."
(emphasis supplied)
62. It was also held by the Hon'ble Supreme Court, in case titled as, 'Patil Automation Pvt. Ltd. vs. Rakheja Engineers Pvt. Ltd.', reported as, '2022 SCC OnLine SC 1028', as under :
"113. Having regard to all these circumstances, we would dispose of the matters in the following manner. 113.1. We declare that Section 12A of the Act is mandatory and hold that any suit instituted violating the mandate of Section 12A must be visited with rejection of the plaint under Order VII Rule 11. This power can be exercised even suo moto by the court as explained earlier in the judgment. We, however, make this declaration effective from 20.08.2022 so that concerned stakeholders become sufficiently informed. 113.2. Still further, we however direct that in case plaints have been already rejected and no steps have been taken within the period of limitation, the matter cannot be reopened on the basis of this declaration. Still further, if the order of rejection of the plaint has been acted upon by filing a fresh suit, the declaration of prospective effect will not avail the plaintiff. 113.3. Finally, if the plaint is filed violating Section 12A after the jurisdictional High Court has declared Section 12A mandatory also, the plaintiff will not be entitled to the relief."
(emphasis supplied) CS (Comm) 402/2022 page 33 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim)
63. It was also recently held by the Hon'ble High Court of Delhi, in case titled as, 'Aditya Birla Fashion And Retail Limited vs. Mrs. Saroj Tandon', passed in CM (M) 459/2023, vide judgment dated 02.09.2024, as under :
"17. Thus, it is very apparent that a counter-claim is also a suit in its individual and distinct capacity, though it needs to be within the confines of order VIII Rule 6A CPC.
18. Once it is lodged, it has to be treated as a regular suit for all practical and procedural purposes.
19. The question is what if such counter-claim pertains to a commercial dispute?
20. To me, it should hardly be of any consequence.
21. Any such counter-claim pertaining to a commercial dispute has to, mandatorily, follow the rules and procedures prescribed for a commercial suit. Merely because, it is a counter-claim, it cannot be assumed that it is relieved of adhering to any such legal obligation. Like any other commercial suit, it has also to go through all the stipulated rigors scrupulously, as may be prescribed for any general commercial suit.
22. Similarly, once filed, the rules and procedures for filing written statement, time-line for filing the same, manner of filing the same and the mandate of filing requisite affidavit and declaration would also be required to be adhered to, with no exception, by the opposite party concerned.
23. The Commercial Courts Act 2015 and Civil Procedure Code (CPC) do not contain any provision providing for different treatment for any such counter-claim.
24. During the trial and till its eventual disposal, the rules for the game have to remain same and similar for any plaint and yes, for the counterclaim as well.
25. The next question is what if such counter-claim does not contemplate any urgent relief?
26. In other words, whether Section 12-A of Commercial Courts Act is also applicable to any such counter-claim.
27. Can it be said that there is no pre-requisite to abide by the mandatory provision of Section 12-A of the Commercial Courts Act, prior to the filing of the counter-claim.
28. Can it be given a go bye?
29. The answer has to be in empathic 'no'."
(emphasis supplied)
64. It is an admitted fact that the counter claim has been filed by the defendant, without compliance of the provisions of CS (Comm) 402/2022 page 34 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) Section 12-A of the Commercial Courts Act, 2015. Therefore, the present suit is not maintainable, for want of compliance of Section 12A of the Commercial Courts Act, 2015, and deserves rejection.
In view of above discussions, this issue is decided against the defendant.
Issues No. 4 & 54. Whether the defendant, herein, is entitled to claim the interest of Rs.8,08,198/- from the plaintiff, herein, as claimed in the counter claim bearing (CS COMM No.723/22) ? OPP
5. Whether the defendant herein is entitled to claim/recover the compensation of Rs.10,00,000/- from the plaintiff, herein, as claimed in the counter claim bearing (CS COMM No.723/22) ? OPP
65. Both these issues are interconnected and therefore, I deem it appropriate to decide both these issues together. In view of my findings on Issue No. 3, as discussed above, both these issues are also decided against the defendant.
Relief
66. In view of my findings on the various issues, as discussed above, the suit of the plaintiff, as well as the counterclaim of the defendant is hereby dismissed, being devoid of any merits.
Parties to bear their own costs.
CS (Comm) 402/2022 page 35 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm)723/2022 (Counterclaim) Decree sheets be prepared accordingly. A copy of the Judgment be also placed in the Counterclaim, bearing No. CS (COMM) 723/22.
File be consigned to record room after due compliance.
Digitally signedAnnounced in the open Court BRIJESH by BRIJESH KUMAR GARG on this 28th Day of September, 2024 KUMAR Date:
GARG 2024.09.28
17:29:05 +0530
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
CS (Comm) 402/2022 page 36 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
CS (Comm)723/2022 (Counterclaim)