Delhi District Court
M/S. Jaquar Mercantile vs . M/S. Shimera Project Lighting Pvt. ... on 14 December, 2021
M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16
IN THE COURT OF MS. SONAM SINGH, CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No.: 99838/1
CNR No. : DLCT030006822011
Date of Institution: 02.12.2011
Date of Reserving the Judgment: 25.11.2021
Date of Decision: 14.12.2021
M/s. Jaquar Mercantile
(Through its constituted Attorney)
Sh. B.B. Duggal
Office at: 5, Flag Staff Road
Civil Lines, Delhi54.
Also at: D26, SMA Industrial Estate,
G.T. Karnal Road, Delhi110035. ............ Plaintiff
versus
M/s. Shimera Project Lighting Pvt. Ltd.
Through its Managing Director
Ms. Sonia Chhabria
Office at: Unit No. 5, Raghuvanshi Mansion,
Raghuvanshi Mill Compound,
SB Marg, Lower Parel,
Mumbai400013.
............ Defendant
Suit for Recovery of Rs 1,45,506/ together with pendent lite & future compound
interest @ 24% p.a.
Present: None for plaintiff.
None for defendant.
JUDGMENT
1) The present suit is filed by plaintiff against defendant for recovery of a liquidated amount of Rs 1,45,506/ and for pendent lite and future compound interest at the rate of 24% per annum.
Page 1 of 27 (Sonam Singh)Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 Averments in the Plaint:
2) It is averred that plaintiff is a partnership firm duly registered under the Registration of Firm Rules 1972 and is having their registered office at the aforementioned address. It is averred that plaintiff is a renowned corporate house and is a global brand and is world renowned manufactures of bath fittings and sanitary wares, electrical lightnings and fittings and commands a sizeable market share in the sector in India & abroad. It is averred that plaintiff in this suit is being represented through Sh. B.B. Duggal, constituted Special attorney of the plaintiff, who has signed, verified and instituted the present suit and he has been authorized through SPA dt. 01 December 2011 executed by the plaintiff firm for the same. It is averred that defendant is a company duly incorporated and registered with the Registrar of Companies and Director of the company Ms. Sonia Chhabria is the principal officer and person responsible for the day to day financial and business decision of the defendant business which is of sale & trading of electrical lightnings and fittings. It is averred that acting upon receipt of defendant's specific order placed before the plaintiff for purchase of electrical lighting and fittings, the defendant was duly supplied with exclusive range and specifications of "ARTEMIDE range of electrical lighting & fitting" against invoice raised for such sale by the plaintiff. It is averred that the ordered material was duly transported through a transport carrier and was delivered at defendant's desired and chosen destination. The defendant's representatives duly inspected the "ordered lighting & fittings" which was strictly order specific, before the actual deliver was taken. All the equipment supplied to defendant were thus to their entire satisfaction and there was no occasion for any complaint whatsoever.
It is averred that plaintiff duly raised Invoices for the equipments dispatched to the defendant and has been duly maintaining a running ledger account of the defendant in its books of account being duly maintained in the usual course of business. In the running ledger statement, all amounts remitted by the defendant against the purchases made are shown as credit and all amounts due is shown as debit. After incorporating all credits & debits the ledger statement pertaining to Page 2 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 the defendant shows a debit balance of Rs.1,45,506/ which the defendant is liable to pay towards consideration for the goods purchased and acknowledged. The defendant is further liable to pay interest @ 18% per annum thereon till the final realization of the dues. It is further averred that defendant had duly acknowledged the delivery of the ordered equipments as per order being placed with the plaintiff. However, promises regarding payments against the goods supplied were never honoured, and defendant was legally bound to make immediate payment of the rental amount after the acknowledgment of the ordered materials and even after acknowledging the lighting material for more than a year, defendant has not made any payment of outstanding dues of Rs.1,45,506/ against order placed and has been taking the plea of "acute financial crisis" and been requesting the plaintiff for some sympathetic consideration and been seeking time after time to make the outstanding payment. It is further averred that defendant has all along confirmed outstanding towards plaintiff and has acknowledged the same. The defendant had made many commitments to pay outstanding dues in instalments during the course of its continued dealings with the plaintiff, but defaulted every time. It is further averred that in terms of order and a contractual obligation specifically agreed upon between parties, defendant has deliberately defaulted despite many reminders and subsequent hollow promises which were never meant to be honoured. It is averred that defendant's act of withholding the payment after having duly availed and enjoyed the profits by selling the "ordered material" in the market and thereafter not paying for the dues despite all the demands was a breach of the contractual payment terms, promises, undertakings as was negotiated and agreed between the parties at the time of availing and executing the order. Defendant is thus guilty of breach of "payment" terms and has failed to release the outstanding payment despite, repeated requests and reminders, and hence the present suit.
Version of defendant:
3) In its Written Statement (WS), defendant has stated that the the present suit is not Page 3 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 maintainable and is specifically barred under Section 69 of the Partnership Act 1932 as plaintiff is not a registered firm and its alleged partners are not its registered partners. It is averred that the present suit is also not maintainable because the same has not been filed through any of the registered partners of plaintiff nor through their duly authorized attorney or competent person and Sh. B.B. Duggal R/o A5B/449, Paschim Vihar, New Delhi is not the attorney of the plaintiff nor he has been authorized in this regard by the plaintiff. The alleged SPA filed by the plaintiff is denied being false and fabricated. The alleged SPA is also unregistered and unauthenticated and the same cannot be said to have appointed Sh. B.B. Duggal as attorney of the plaintiff. Thus, the present suit is not maintainable as the same has not been validly instituted, signed and verified by the registered partners of the plaintiff or their duly authorized attorney. It is averred that plaintiff has not approached this Court with clean hands and has indulged in largescale suppression veri and suggestion falsi, and plaintiff has sought to misguide and mislead the Court on several matters of vital importance. It is averred that this Court does not have jurisdiction to try and entertain the present Suit as defendant has its registered office at Mumbai at the address given in the cause title of the plaint and defendant carries on its business in Mumbai, i.e. outside the jurisdiction of this Court. It is averred that the dealership agreement was signed at Mumbai. The goods were supplied from Bhiwadi, Rajasthan and thus no part of the cause of action has arisen at Delhi. It is stated that on going through the statements and averments as contained in the Plaint, it would clearly go to show that the alleged cause of action, if at all it accrued, it would be outside the jurisdiction of this Court as the goods alleged to have been delivered to defendant herein were to be delivered in Mumbai, the payment in respect thereof was to be made at Mumbai after verifying that the goods were in conformity with the order placed by the Defendant, etc., and therefore this Court does not have jurisdiction to try and entertain the present suit. It is averred that without prejudice to what is stated hereinabove and before dealing with the contents of the plaint, defendant has mentioned some factual aspects of the Page 4 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 matter, which have been suppressed by plaintiff as under:
i) Defendant is a Private Limited Company incorporated under the provisions of Companies Act, 1956. This Defendant carries on its business of sale and trading of electrical lightings and fittings.
ii) Defendant was appointed as a Channel Partner for dealership in the city of Mumbai by the Plaintiff for the business of sale and trading in "Artemide"
products which are manufactured and traded by the Plaintiffs. Accordingly, defendant was issued Letter of Intent for dealership dated 29 th December 2007 by Plaintiff and defendant was appointed as a Channel Partner/ exclusive dealer of Plaintiff for trading of the Artemide products in the city of Mumbai. Defendant was also allocated a space of 75 Sq. Mtrs. in it its showroom exclusively to the plaintiff for display of Artemide products of plaintiff.
iii) Plaintiffs for its efficient and cordial business understanding with the Channel Partners, had set up "Channel Partner Sales & Support Programme", whereby terms and conditions of the Dealership Agreement were set up with certain particulars, such as the details of the pricing, commission to be paid to the Channel Partner, the rates of such commission payable to the Channel Partner, discounts, bonuses etc.
iv) Under the said "Channel Partner Sales & Support Programme" whereby terms and conditions of the Dealership Agreement were set out, it was agreed that the Plaintiff shall not make direct sales of its product for which the Dealership Agreement is arrived at with the Defendant, i.e. Artemide products, in the area for which the Defendant was appointed as a Channel Partner, i.e. Mumbai City and that all sales will be made through the Defendant only. This important fact and material documents substantiating the same have been suppressed by plaintiff.
v) According to the terms of the said "Channel partner Sales and Support"
programme of the plaintiff, defendant was entitled to commission and various discounts the details of which are as under:
a. Commission 5%
b. Cash discount 5%
Page 5 of 27 (Sonam Singh)
Civil Judge07, Central, Delhi
M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 c. Turnover Discount:
3% in case of quarterly turnover between 1020 Lacs during the said quarter. 4% (in case of quarterly turnover more than 20 Lacs during the said quarter.) The turnover discount was to be given to defendant/dealer at the end of the financial year.
d. Special Quantity Discount Ranging between 3 to 5% depending upon quantity /value of order.
e. Annual Bonus 2% of the total annual purchases to be given at the end of financial year.
vi) In addition to this, defendant was also entitled to a very special discount of 30 % to 50 % for material purchased by defendant for display as per the following:
Purchases for display more than Rs. 15 Lacs 50 % Purchases for display between Rs. 11 Lacs and Rs. 15 Lacs - 45 % Purchases for display between Rs. 5 Lacs and Rs. 10 Lacs - 40 % Purchases for display up to Rs. 5 Lacs - 30 % It is submitted that all the discounts were to be given by plaintiff to defendant at the end of financial year either by issuing credit notes or by payment except the commission which was to be paid or credited at the end of the quarter. It is averred that during the period 1.5.09 to 30.6.09, defendant made total purchases of Rs. 21,53,143/ from the plaintiff and defendant made purchases vide bill no. 54 dated 01.05.2009 for Rs. 3,63,923/ exclusively for display purposes for which the defendant was entitled to a very special discount for display @30 % as mentioned hereinabove. The said discount amount works out to be Rs. 1,09,176/. In addition to this, defendant was entitled to a cash discount of 5 % on the said purchase which amount works out to be Rs.18,196/ . Further, defendant was entitled to a quarterly turnover discount of4 % on the said purchase which amount works out to be Rs.
14,556/. Thereafter, defendant made purchases vide bill no. 520 dated 15.09.2009 for Rs. 15,40,069/ and defendant was entitled to a cash discount of 5% on the said purchase which amount works out to Rs. 82,462/. In addition to this, defendant was entitled to quarterly turnover discount of4 % according to the slabs mentioned in Para Page 6 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 7 hereinabove, which amount works out to be Rs. 61,602/. It is averred that defendant again made purchase from plaintiff vide bill no. 819 dated 02.06.2009 for Rs. 2,51,151/ and was entitled to cash discount of 5% amounting to Rs. 12,557/ and quarterly turnover discount of 4 % on this purchase which amount which works out to be Rs. 10,046/. It is averred that defendant was also entitled to further annual bonus of 2% on the total annual purchases of Rs. 21,55,143/ vide three bills mentioned hereinabove which amount works out to be Rs. 43,102/ and was also entitled to commission @5 % and the commission on these three bills @5 % works out to be Rs. 1,05,644/. It is averred that in this manner defendant was entitled to a quarterly turnover discount amounting to Rs. 86,204/ at the end of the year in respect of turnover discount. Further, defendant was entitled to cash discount of Rs. 1,13,215/, annual bonus of Rs. 43,102/ apart from special discount of Rs. 1,09,176/ on bill no. 54. It is in this manner that the defendant is entitled to a credit of Rs. 4,57,341/ and defendant has already remitted Rs. 19,03,992/ vide cheque no. 525487 for Rs. 15,40,069/ and cheque no. 525499 for Rs. 3,63, 923/ to plaintiff. Thus, plaintiff is liable to pay Rs. 1,00,546/ to defendant as stated above after adjusting the amount of three bills and commission credited to the account of defendant. It is averred that plaintiff has neither paid nor given any credit of the said outstanding amount of Rs. 1,00,546/ and a commission of Rs. 1,05,644/. It is averred that it was agreed between the parties to the suit that defendant is appointed as an exclusive dealer and all sales and supplies in the city of Mumbai shall be routed through the defendant. It is averred that defendant vide its letter dated 17.1.11 confronted plaintiff with several instances where Plaintiff breached the agreement by approaching and attending clients, i.e. the prospective purchasers, in the City of Mumbai directly without the knowledge of defendant in clear contravention of the terms and conditions of the Dealership. By the said letter, defendant had called up plaintiffs to inform defendant as to how order were taken directly by the sales personnel of the plaintiff, however, there was no reply from plaintiff to the said letter dated 17th January, 2011. Apart from this, defendant has denied the averments of plaint and stated that the goods covered by the invoice were supplied to defendant Page 7 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 under the Dealership Agreement to be sold to prospective purchaser by defendant in the city of Mumbai.
Replication by plaintiff:
4) In the replication filed by plaintiff, contents of written statement have been denied and stated to be wrong and plaintiff has reaffirmed, reasserted and reiterated the contents of plaint.
Settlement of Issues:
5) From the pleadings of parties, following issues were framed by the Ld. Predecessor of this Court vide order dt. 17.10.2012:
1. Whether the suit is barred under Section 69 of the Partnership Act?
(OPD)
2. Whether the plaintiff firm is a registered firm under the Partnership Act?
(OPP)
3. Whether the plaintiff is entitled for a decree of Rs 1,45,506/? (OPP)
4. Whether the plaintiff is entitled entitled for interest, if yes, at what rate and for what period? (OPP)
5. Relief.
It is pertinent to note that vide order dated 30.05.2013 the following additional issue was framed by the Ld. Predecessor of this court :
6. Whether this Court has no territorial jurisdiction to entertain the present suit? (OPD) Plaintiff's evidence:
6) To prove its case, PW1: Sh. B.B. Duggal was examined through Local Commissioner appointed by the Ld. Predecessor of this Court vide order dated 21.04.2014 and was discharged on 12.05.2016, PW2: Sh. Divakar Gupta was examined and discharged on 10.08.2016. On 18.10.2018 PW1 was again examined as per order dated 26.07.2018 vide which application of plaintiff under Section 151 of CPC was allowed for deexhibiting the document marked as Ex.Page 8 of 27 (Sonam Singh)
Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 PW1/1 and marking the signed one as exhibit in its place. PE was closed on the same date.
7) During examinationinchief of PW1, his affidavit was marked as Ex. PW1/X and he has relied upon the documents Ex. PW1/1 to Ex. PW1/9 (objected as to mode of proof and ground of admissibility) as follows: Ex.PW1/1 SPA, Mark A Certificate of registration, Mark B Certificate of partnership, Ex.PW1/2 Invoice, Ex.PW1/3 Copy of transport G.R, Ex.PW1/4 Ledger Statement, Ex.PW1/5,6 &7 Notice dated 29.12.2010, its postal receipt & reply dated 17.01.2011 respectively, Ex.PW1/8 Legal notice & Ex.PW1/9 Postal Receipts.
In his crossexamination, PW1 has denied the suggestion that he has not been authorized by the firm M/S Jaquar Mercantile to institute, sign, or verify the plaint/suit on behalf of plaintiff. In his further crossexamination held before the Court, PW1 has stated that SPA Ex.PW1/1 is neither signed by executants/plaintiffs nor the same is witnessed. He has denied the suggestion that he has not been authorized by the plaintiffs to file the present suit and to depose before the court on their behalf. He has denied the suggestion that the SPA filed by him is forged and fabricated. He has denied the suggestion that the plaintiff firm is not registered with the Registrar of Firms. He has denied the suggestion that Mark B is the forged and fabricated document. He has stated that he does not recollect the presence of any such resolution of company M/s. Essco Sanitations Pvt. Ltd. for becoming partner in plaintiff firm and records are required to be seen. He has further stated that he cannot admit or deny the suggestion that there has been no resolution of M/s. Essco Sanitations Pvt. Ltd. for becoming the partner in the plaintiff firm. The witness has further stated that the person who has signed on MarkB repeatedly is Sh. Rajesh Mehra and he signed in different capacities of that particular partner i.e. HUF/ Pvt. Ltd. Company and as an individual. The witness has denied the suggestion that signatures at pointsA, B and C on MarkB are not that of Sh. Rajesh Mehra but of Sh. B.S. Sharma. The witness has stated that he does not recollect whether there has been any resolution of M/s. KRA Leasing Ltd. to become the partner of plaintiff or authorizing the signatory to sign on MarkB at Page 9 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 pointA, and has denied that MarkA is a fabricated document. The witness has stated that defendant is a private limited company and denied that Sh. Prakash Chhabaria was the only person dealing with plaintiff on behalf of the defendants and stated that he was only one of those persons who were dealing with the plaintiff on behalf of defendants. The witness has denied that defendant was given exclusive dealership for the city of Mumbai by the plaintiff and stated that other dealers were also there in Mumbai city. The witness has stated that the plaintiff firm also has an office in Mumbai and further stated that he does not remember whether the dealership agreement was executed at Mumbai. The witness has denied that the head office of the plaintiff firm is in Gurgaon and stated that the Registered and Head office of plaintiff firm is in Delhi. The witness has denied that there is no head office or regd. office of plaintiff in Delhi. He has stated that being a Director, he supervises whole of the affairs of plaintiff firm and his supervisions, control or function is not limited to any particular area of the plaintiff firm. The witness has further stated that he is not a partner in the plaintiff firm and also stated that he has personally never dealt with the defendant company. The witness has denied that the original dealership agreement/channel partner agreement is maintained by the plaintiff company and has stated that two copies are prepared one is retained by the plaintiff company and other by the dealer. The witness has denied that only one original of dealership agreement/ channel partner agreement is made and retained by the plaintiff company and no other copy is given to the dealer. The witness has stated that it is not necessary that when they appoint a dealer, they execute a dealership agreement. It is further stated that Plaintiff is not ISO 9001 or ISO 14001 or any other ISO compliant. The witness has further stated that plaintiff had appointed the defendant as dealer for "artemide" and was not appointed as a channel partner, and denied that defendant was appointed as channel partner. He has further denied that the term "Dealer" and "Channel Partner" is used alternatively by the plaintiff firm and there is no difference between the same. The witness has stated that he does not remember if the supplies were effected either from Bhiwari Depot of plaintiff or Mumbai Depot of plaintiff to the defendant and Page 10 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 also does remember if the supplies were never effected from Delhi to defendant and records have to be checked for the same. The witness further stated that he does not remember whether the plaintiff had given document MarkDX to the defendant and also stated that MarkDX Sales and Support Programme is one prepared by plaintiff and it is used as a document containing all the terms & conditions agreed between the plaintiff and the person appointed as a Channel Partner. The witness has denied that Statement of Account Ex.PW1/4 is wrong and contains various false entries and many credit entries in favour of the defendant have not been given. He has further stated that he is not personally the author of the accounts Ex.PW1/4 and the same is maintained by the Accounts Department. The witness has stated that they do not maintain accounts in bound book and maintain the accounts on computers which are audited by the statutory auditors. The witness has further stated that the account Ex.PW1/4 is not authenticated/attested by any auditor or statutory authority and the same is self attested statement of account by him and the original account is in computer. The witness further stated that they prepare a voucher before posting an entry in the ledger and maintain those vouchers, and has denied that defendant is not liable to pay Rs. 1,45,506.75p to the plaintiff. The witness has further stated that invoice Ex.PW1/2 is not signed by the plaintiff's Accounts Department and the same is computer generated and selfattested by him. The witness has denied that Ex.PW 1/5 was never served upon the defendant and also denied that Ex.PW1/5 to Ex.PW1/7 are fabricated documents. He has further denied that there is no confirmation by the defendants, as alleged by him in his affidavit. The witness has stated that he is aware of the terms which were agreed between plaintiff and defendant and these terms & conditions were not settled between the parties before him, however, the same were settled by their Sales manager in consultation with him. The witness has denied that he is not looking after sales and marketing division of the plaintiff firm and stated that he looks after general and supervision of the company affairs. When defendant was put with the question that plaintiff has agreed to pay 5% commission to the defendant, he answered that whatever the Page 11 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 commission was, it has already been paid and he I cannot state about that the agreed rate of the commission and needs to check the record. The witness has denied that plaintiff has also agreed to give cash discount of 5% to the defendant, or it agreed to give turnover discount to the defendant, or agreed to give special quantity discount to the defendant ranging between 3% to 5% depending upon the quantity and value of the order. He has further denied that plaintiff also agreed to give total annual bonus 2% to the defendant or special discount of 30% to 40% on the display products and that the purchases made by the defendant vide bill no. 54, dated 01.05.2009 for Rs.3,63,923/ was exclusively for display purposes, and stated that he does not remember whether the payment of this bill was made by the defendant. The witness has further stated that whatever committed discounts were there, they have already given it to the defendant and denied that the accounts filed by him in the court are incorrect. The witness has also denied that the plaintiff company is liable to pay or give the credit of Rs.1,09,176/ as per special discount @ 30% for display items or that they have not given cash discount of 5% amounting to Rs.18,196/ on the amount of purchases made during the period 01.05.19 to 30.06.09 or that they have not given quarterly turnover discount of 4% amounting to Rs. 14,556/ on the amount of purchases made during the period 01.05.19 to 30.06.09. The witness has stated that he does not remember whether the defendant was entitled to cash discount of 5% amounting to Rs.82,462/ on the amount of bill no. 520 dt. 15.05.09 and quarterly turnover discount @ 4% amounting to Rs. 61,602/ and stated that it is a matter of record. He has further stated that he does not remember whether the defendant was entitled to cash discount of 5% amount of Rs. 12,557/ and quarterly turnover discount of 4% amounting to Rs. 10,046/ on bill no. 819 and stated that it is a matter of record and whatever has been agreed, has been paid. The witness has further stated that he does not remember whether the office has maintained the written terms and conditions in the office and does not remember whether the defendant was entitled to 2% total annual bonus amounting to Rs. 43,102/ or 5% commission amounting to Rs. 1,05,644/ and all entries have been credited in the account which is a matter Page 12 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 of record.The witness has stated that he does not know that the total amount of credit to which the defendant was entitled on account of various discounts, bonuses and commission etc. works out to be Rs. 4,57,341/ and also answered that it is a matter of record if defendant had already remitted Rs 19,03,992/ vide cheque no. 525487 for Rs 15,40,069/ and cheque no. 525499 for Rs 3,63,923/ The witness has stated that they had paid/credited whatsoever was committed and entitled to the defendant from time to time and denied that plaintiff is liable to pay Rs. 1,00,546/ to the defendant upon settling of account after considering all discounts, bonuses and the sales. The witness has denied that that Ex. PW1/2 is fabricated by the plaintiff and no such supplies were delivered upon the defendant, and also denied that Ex. PW1/3 is a fabricated and manipulated document. He has also denied that no such letter dt. 17.01.11 (Ex.PW1/7) was sent by the defendant, or that Ex.PW 1/7 has been forged and fabricated by the plaintiff. The witness has further denied that the suit of the plaintiff is false and they are not entitled to any amount. The witness has further denied that he has deposed falsely or that his affidavit is false.
In his examination conducted on 18.10.2018 for limited document in terms of order dt. 26.07.18, PW1 has exhibited document as Ex.PW1/1(OSR) (Objected as to mode of proof and admissibility). In his crossexamination on the same date, the witness has denied that plaintiff has not authorized him to file, sign and verify the present suit and further denied that plaintiff has not executed any SPA Ex. PW1/1 in his favour. The witness has stated that the SPA Ex. PW1/1 does not bear the stamp of the plaintiff firm and denied that that Ex. PW1/1 is different from the earlier exhibited document Ex. PW1/1. He has stated that the signatures at point A appearing on Ex. PW1/1 dt. 26.07.18 are his and further stated that he does not remember the exact date when he signed the said document, however, it was before filing the present suit. The witness has stated that he does not remember who had signed the said document before he signed the same, and the he had signed the said document Ex. PW1/1 in his office at G.T. Karnal Office Delhi. The witness has denied that that Ex. PW1/1 is not notarized and further denied that there is no entry number of notarization on Ex. PW1/1. The witness has Page 13 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 also denied that the said SPA Ex. PW1/1 is forged and fabricated. The witness has stated that there is no resolution passed by all the partners of the firm to authorize him as the same was a partnership firm. He has further stated that he does not know the number of partners in the firm, however, it consists of members of Mehra Family and further stated that sometime HUF is partner and sometimes it is not. The witness has denied that Ex. PW1/1 is not signed by any partner and also denied that he is deposing falsely.
PW2: Sh. Divakar Gupta has tendered his evidence by way of affidavit which is Ex. PW2/A and has relied upon Certificate u/s 65B of Evidence Act which is marked as Ex. PW2/1 (objected). In his crossexamination, the witness has stated that he is working in the plaintiff firm since last 15 years. The witness has stated that he does not personally feed the entries in account books in computer system and the same is done under his supervision. He has further stated that whenever any entry is posted in the accounts books, same is done on the basis of some document and they maintain the documents on the basis of which they post an entry in the books of accounts. He has further stated that when any benefit of commission on the supplied goods is given to the buyer a specific voucher is being made for the same. The witness has further stated that the contract between the plaintiff and defendant was in their possession and that all available discounts, rebates are already mentioned in the contract. The witness has denied that in their computer systems entries can be added and deleted at any time and also denied that account Ex. PW1/4 is absolutely wrong and it does not contain entries regarding the various commissions, discount etc. to which the defendant was entitled form the plaintiff. The witness has also denied certificate u/s 65B of evidence act is wrong being prepared in mechanical manner and signed by him in routine. The witness has stated that they received information about the entitlements etc. by way of agreement duly executed between the parties, and again said, there is a written policy of plaintiff also in addition/in lieu of the contract which is received by the accounts department. The witness has further stated that Mark DX is the Page 14 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 agreement between the plaintiff and the defendant. The witness has denied that Ex. PW1/4 and PW2/1 are wrong and further denied that he has deposed falsely being the employee of the defendant firm. The witness has further denied that he has not brought any ledger or statement of account today in the court with him. The witness has further denied that he has deposed falsely and that his affidavit is false.
Defendant's evidence:
8) On behalf of defendant one witness: Sh. Manoj Yadav was examined as DW1 who was partly examined on 03.05.2019 and discharged on 24.07.2019. DE was closed on the same date.
9) DW1: Mr. Manoj Yadav has tendered his evidence by way of affidavit which is Ex. DW1/A and has relied upon the document: Ex. DW1/2 Copy of defendant's application for appointment as Channel Partner (Objected qua mode of proof being photocopy and contents). There is no document Ex. DW1/1.
In his crossexamination, DW1 has stated that he is working in the defendant company since 2005 and Mr. Prakash Chabaria and Mr. Vinod Tekchandani are the Directors in the defendant company. The witness has stated that he has not been authorized on behalf of the company to depose in the present suit, and again said that he has not been authorized in writing to depose before this court but he is responsible on behalf of company to depose before this court. The witness has further stated that he has not been authorized on board meeting to depose in the present suit and nor there is any minutes of meeting drawn in his favour to depose, and was told verbally in a meeting to go and depose. The witness has stated that initially he was working in Mumbai, thereafter, presently he is working in Delhi since 2012, and that he was present there in meeting when he was conveyed verbally to appear before the Court. The witness has further stated that Ex. DW1/2 is the agreement which was entered between the plaintiff and defendant company and it does not bear any signature on behalf of the plaintiff company or its authorized representative. The witness has further stated that Ex. DW1/2 does not bear any seal of the plaintiff company and also does not bear the signature of Page 15 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 AR and any seal / stamp of defendant company. The witness has denied that he has no knowledge of the said transaction/contract/agreement between the parties. He has stated that he is employed as a technician in the defendant company but was also assigned to look after the day to day affairs of the company. He has further stated that defendant was appointed a channel partner through Ex. DW1/2. The witness has denied that they were never appointed as channel partner of the plaintiff company and nor were granted any benefit pertaining to trade discount/ turnover discount/ TOD and any of the contents as mentioned in the said alleged document as placed by the defendant Ex. DW1/2. The witness has stated that he cannot answer without checking the office records if there was any written agreement bearing signatures of both parties whereby 75 sq. mtr. area was agreed to be alloted by defendant for display of artemide products and further stated that he was never present when any such understanding or agreement took place between the plaintiff and the defendant. The witness has stated that they did write a letter to the plaintiff company seeking the original agreement and there is not such letter or postal receipt seeking the original agreement, which was executed between the plaintiff and the defendant company on record. The witness has denied that there was no such agreement nor any such letter was written by the defendant to the plaintiff. The witness has further stated that approval pertaining to his contentions as mentioned in his affidavit pertaining to all the benefits of various discounts on behalf of plaintiff company in their favour such approval was received as per the agreement. He has further stated that there was no approval letter pertaining to the benefits which would have accrued to them. The witness has further stated that there was exclusive dealership agreement between plaintiff and defendant, and has denied that there was no such exclusive dealership agreement between plaintiff and defendant. The witness has further denied that they have received the commission payable to them by the plaintiff company. When the witness was shown an entry on Ex. PW1/4 (page 27) amounting to Rs. 105644.25/ he stated that he can answer the basis of such amount credited to the account of defendant company only after checking the records of company. The witness has Page 16 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 further denied the suggestion that an amount of Rs 1,05,644.25p was given to defendant as commission on 20.06.10. He has stated that they have not filed any case pertaining to incentive, commission or dues against the plaintiff company. The witness has denied the suggestion that the entire account has been settled between the parties and nothing is payable to defendant and further denied that he is deposing falsely.
10) Final arguments on behalf of parties have been heard. Record has been carefully perused.
Findings:
Issue No.1: Whether the suit is barred under Section 69 of the Partnership Act?
(OPD) Issue No.2: Whether the plaintiff firm is a registered firm under the Partnership Act? (OPP)
11) The above two issues being interconnected are taken up together. Section 69 of The Indian Partnership Act, 1932 provides as follows:
"69. Effect of nonregistration (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of subsections (1) and (2) shall apply also to a claim of setoff or other proceeding to enforce a right arising from a contract, but shall not affect:
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidencytowns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.
(4) This section shall not apply:Page 17 of 27 (Sonam Singh)
Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16
(a) to firms or to partners in firms which have no place of business in 8 [the territories to which this Act extends], or whose places of business in 9 [the said territories], are situated in areas to which, by notification under 10 [section 56], this Chapter does not apply, or
(b) to any suit or claim of setoff not exceeding one hundred rupees in value which, in the Presidencytowns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidencytowns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim."
In order to show that the plaintiff firm is a registered firm, plaintiff has produced the certificate of registration and partnership and same have been marked as Mark A and Mark B respectively. Perusal of MarkA shows that it is a copy of FormB vide which the name of plaintiff firm has been entered in the Registrar of Firms and bears dated 23.06.2000. Further, perusal of MarkB shows that it is a copy of Partnership deedcumRetirement deed made on 01.04.2011 bearing names of ten continuing partners, three retiring partners and four new partners. As per Section 69(2) above no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. In the present suit, even though plaintiff has produced copy of registration of plaintiff firm (MarkA) on record, however, form/document showing the names of persons/partners in the Register of Firms has not been produced by plaintiff. Further, perusal of plaint and affidavit of PW1 which is Ex. PW1/X shows that the plaintiff in this suit is being represented through Sh. B.B. Duggal, constituted Special attorney of plaintiff, who has signed, verified and instituted the present suit as he has been authorised through SPA dated 01.12.2011 executed by plaintiff firm for the same. Perusal of this SPA Ex.PW1/1 (OSR) dated 01.12.2011 shows that Sh. B.B. Duggal has been nominated and constituted as the lawful attorney on behalf of plaintiff firm by its partners and it bears the signatures of one executant/partner and that of one witness: Deepak Lama only and not the other partners existing as on 01.12.2011. Perusal of MarkB shows that the parties/partners mentioned in no.1 to 13 had entered into a partnership through Page 18 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 deed executed on 01.04.2009 and the partnership firm was registered on 23.06.2000 (MarkA) and vide MarkB dated 01.04.2011 four new partners have been added in the plaintiff firm. It, thus, appears that neither the document/form showing the names of existing partners at the time of registration of firm has been produced on record by plaintiff firm, nor has Ex. PW1/1 SPA been executed by all partners existing as on date authorising PW1 qua the present suit, nor have any partner or attesting witness has been examined on behalf of plaintiff to prove the same. Further, in his crossexamination PW1 has stated that SPA Ex.PW1/1 does not bear the stamp of plaintiff firm. He has further stated that he does not remember who had signed the said document before he signed it and also stated that no resolution was passed by all partners of the firm to authorize him as the same was partnership firm. The witness has further stated that he does not know the number of partners in the firm, however, it consists of members of Mehra Family. PW1 has also stated in his crossexamination that he is not a partner in the plaintiff firm. From above, it is thus clear that the mandate of Section 69 has not been complied by the plaintiff firm qua institution of the present suit. Furthermore, registration of firm is concerned, in order to prove the registration of firm, photocopy of FormA is marked as MarkA on behalf of plaintiff. Nothing has been explained or stated by the witness or in plaint as to why the original or certified copy of FormA has not been produced on record, nor any official witness or any partner of plaintiff firm has been examined to prove the said document i.e. MarkA. Plaintiff has merely placed on record the photocopy of such document on record without pleading or leading any evidence as to how the same was prepared or whether or not it was duly compared with original or even stated whether the original or certified copy has been lost or destroyed or cannot be produced. It is settled that merely putting exhibits or marking a document does not amount to its proof and the document must be proved in terms of rules of evidence. In view of discussion made above, issue no. 1 & 2 are accordingly decided in favour of defendant and against the plaintiff.
Page 19 of 27 (Sonam Singh)Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 Issue No.6: Whether this Court has no territorial jurisdiction to entertain the present suit? (OPD)
12) Before deciding the issue of territorial jurisdiction, it is pertinent to reproduce Section 20 of the CPC which provides as under:
"Section 20: Other suits to be instituted where defendants reside or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
1**** * 2[Explanation]. A corporation shall be deemed to carry on business at its sole or principal office in 3 [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
The burden to prove this issue was on defendant. Ld. Counsel for defendant has argued that no cause of action wholly or in part has arisen in Delhi as defendant is based in Mumbai, agreement was made in Mumbai as well as goods were supplied from Rajasthan (Bhiwadi) to Mumbai. Ld. Counsel for Plaintiff on the other hand has argued that in the invoice at page 22 of documents, it is stated that disputes, if any shall be subject to the Jurisdiction of Delhi Courts. Perusal of the memo of parties filed by plaintiff shows that defendant has been shown to have its office situated at SB Marg, Lower Parel, Mumbai400013. Further, it is averred by plaintiff that equipments were supplied to defendant by plaintiff against invoice and through transport G.R. Perusal of this Invoice which is Ex. PW1/2 shows the address of plaintiff firm as that of Jaquar Mercantile (Bhiwadi) SP496B, Industrial Area, Bhiwadi 301019, Rajasthan, whereas that Page 20 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 of Consignee/delivery address as S.B. Marg, Lower Parel, Mumbai400013, Maharashtra. Further, perusal of Transport receiptEx. PW1/3 dated 03.06.09 also shows that goods were delivered from Bhiwadi to Mumbai. Furthermore, PW1 in his crossexamination has stated that plaintiff firm also has an office in Mumbai. He has further stated that registered and head office of plaintiff firm is in Delhi.
As provided in Section 20 of CPC reproduced above that every suit shall be instituted in a Court within the local limits of whose jurisdiction the defendant at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or where the cause of action, wholly or in part, arises. In the present suit, defendant's office is situated at Mumbai, Maharashtra whereas goods were delivered from the office of plaintiff firm situated in Bhiwadi, Rajasthan to defendant at Mumabi, Maharashtra. It is thus clear that no cause of action has arisen whether in part or whole in Delhi. Further, the contention of plaintiff that jurisdiction qua dispute is subject to Delhi Courts, it is to note that if a particular court does not have jurisdiction to deal with the matter and no part of cause of action has arisen within the jurisdiction of that court, then the parties by their consent and mutual agreement cannot vest jurisdiction in the said court and thus, a clause vesting jurisdiction on a court which otherwise does not have jurisdiction to decide the matter, would be void as being against the public policy as has been affirmed by the Hon'ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Another (2005) 7 SCC 791. Further, the fact that plaintiff has its registered/head office at Delhi would also not confer jurisdiction to Delhi in view of Explanation to Section 20 that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. In the present suit, even though the head office/principal office of plaintiff is situated at Delhi, however, here the cause of action has arisen in Bhiwadi (Rajasthan) and Mumbai (Maharastra) and accordingly the territorial jurisdiction lies at these two places Page 21 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 only where plaintiff also has its other/subordinate office i.e. Mumbai or Bhiwadi. Issue no. 6 is accordingly decided in favor of defendant and against plaintiff.
Issue No.3: Whether the plaintiff is entitled for a decree of Rs 1,45,506/? (OPP) Issue No.4: Whether the plaintiff is entitled entitled for interest, if yes, at what rate and for what period? (OPP)
13) It is the case of plaintiff that upon receipt of specific order of defendant it was duly supplied with "ARTEMIDE range of electrical lighting & fitting" against invoice raised and the order was duly transported through a transport carrier and delivered at defendant's desired and chosen destination. It is averred that plaintiff duly raised Invoices for the equipments dispatched to defendant and has been maintaining a running ledger account duly maintained in the usual course of business and after incorporating all credits & debits the ledger statement pertaining to the defendant shows a debit balance of Rs.1,45,506/ which defendant is liable to pay towards consideration for the goods purchased and acknowledged along with interest @ 18% per annum thereon till the final realization of the dues. In its written statement, defendant has stated that defendant was appointed as a Channel Partner for dealership in the city of Mumbai by the Plaintiff for the business of sale and trading in "Artemide" products which are manufactured and traded by the Plaintiffs. Accordingly, defendant was issued Letter of Intent for dealership dated 29th December 2007 by Plaintiff and defendant was appointed as a Channel Partner/ exclusive dealer of Plaintiff for trading of the Artemide products in the city of Mumbai. Defendant was also allocated a space of 75 Sq. Mtrs. in it its showroom exclusively to the plaintiff for display of Artemide products of plaintiff. Defendant has further stated that plaintiff for its efficient and cordial business understanding with the Channel Partners had set up "Channel Partner Sales & Support Programme" whereby terms and conditions of the Dealership Agreement were set out and it was agreed that plaintiff shall not make direct sales of its Artemide products in the area for which the Defendant was appointed as a Channel Partner, Page 22 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 i.e. Mumbai City and that all sales will be made through defendant only. It is further stated that according to the terms of said "Channel partner Sales and Support" programme, defendant was entitled to commission and various discounts the details of which are specified in para 3 (v) & (vi) above. It is further stated by defendant that it is entitled to a credit of Rs. 4,57,341/ and it has already remitted Rs. 19,03,992/ vide cheque no. 525487 for Rs. 15,40,069/ and cheque no. 525499 for Rs. 3,63, 923/ to plaintiff, and it is plaintiff who is liable to pay Rs. 1,00,546/ to defendant after adjusting the amount of three bills and commission credited to the account of defendant. It is further stated that goods covered by invoice were supplied to defendant under the Dealership Agreement to be sold to prospective purchaser by defendant in the city of Mumbai.
14) In order to prove its case, plaintiff has examined two witnesses and relied upon documents as stated in para 7 above. In his crossexamination, PW1: Sh. B.B. Duggal has denied that defendant was given exclusive dealership for the city of Mumbai by plaintiff and stated that other dealers were also there in Mumbai city and has further stated that plaintiff firm also has an office in Mumbai but he does not remember whether the dealership agreement was executed at Mumbai. It is thus implied that defendant was appointed as one of the dealers for Mumbai by plaintiff and dealership agreement was entered between parties. The witness however has denied that the original dealership agreement/channel partner agreement is maintained by plaintiff company and has stated that two copies are prepared one is retained by the plaintiff company and other by the dealer. The witness has further stated that plaintiff had appointed the defendant as dealer for "artemide" and was not appointed as a channel partner and further denied that the term "Dealer" and "Channel Partner" is used alternatively. The witness, however, thereafter has stated that MarkDX Sales and Support Programme is prepared by plaintiff and it is used as a document containing all the terms & conditions agreed between the plaintiff and the person appointed as a Channel Partner, however, he does not remember whether plaintiff had given the said document to defendant. It is thus admitted by PW1 that document MarkDX (i.e. Channel Partner Sales & Support Programme Page 23 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 also Ex. DW1/2) relied upon by defendant has been prepared by plaintiff containing all terms and conditions agreed between plaintiff & person appointed as a Channel Partner. The witness has further stated that plaintiff prepares a voucher before posting an entry in the ledger and maintain those vouchers and has denied that defendant is not liable to pay Rs. 1,45,506.75p to plaintiff. It is pertinent to note that plaintiff has not produced these vouchers on record on the basis of which ledger account of defendant is maintained. It is settled that mere entry in books of accounts is nt sufficient to burden plaintiff with liability and the entries are required to be proved by way of independent evidence. The witness has further stated that invoice Ex.PW1/2 is not signed by the plaintiff's Accounts Department and the same is computer generated and selfattested by him, however, in his cross examination, the witness has also stated that he has personally never dealt with the defendant company and further stated that the account Ex. PW1/4 is not authenticated/attested by any auditor or statutory authority, but is selfattested by him. The witness has further stated that he looks after the general and supervision of company affairs and the terms and conditions agreed between parties were not settled before him, but by Sales Manager in consultation with him. However, when PW1 was asked about the agreed rate of commission qua defendant, he has stated that whatever the commission was, it has already been paid and he cannot state about the agreed rate of the commission. The witness has further stated that he needs to check the record qua the rate of commission agreed between parties and further stated that whatever committed discounts were there, plaintiff has already given the same to defendant. It is pertinent to note here that in its entire plaint, no averment qua the aforesaid agreement entered between parties has been made, nor any rate of commission or discount has been stated by plaintiff, and on the point of rate of commission and discount, the witness has evasively stated that whatever commission or discounts were there, it has already been paid to defendant. Moreover, it is also pertinent to note that the witness has time and again stated that record needs to be checked, however, no such record has been produced in court by plaintiff to support the statement of PW1. PW1 has also stated that he does not Page 24 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 remember whether payment of bill no. 54 dated 01.05.2009 for Rs 3,63,923/ exclusively for display purposes was made by defendant or not. When PW1 was crossexamined qua special discount, cash discount turnover discount etc. he has evasively stated that whatever was agreed between parties has already been granted to defendant, however, as stated above no document has been produced to show the same. Further, defendant has also stated that he does not remember whether defendant was entitled to cash discounts or turnover discounts on bills no. 520 and 819, total annual bonus and commission, and again stated that it is a matter of record & all entries have been credited in the account, and whatever was agreed has been paid, however, it is again pertinent to note that no record or accounts has been brought by plaintiff to establish the same. It is also pertinent to note that PW 1 has further stated that he does not know if the total amount of credit to which defendant was entitled on account of various discounts, bonuses and commissions etc. work out to be Rs 4,57,341/
15) Similarly, perusal of crossexamination of PW2: Sh. Divakar Gupta shows he has stated that he does not personally feed entries in account books in computer system, and further stated that whenever any entry is posted in the account books, same is done on the basis of some document. The witness has also stated that the documents on the basis of which an entry is made in the books of accounts are maintained, and further stated that when any benefit of commission on the supplied goods is given to the buyer a specific voucher is being made for the same. However, it is to note that none of these documents or vouchers have been produced on record by plaintiff. It is quite pertinent to also note that PW2 in his crossexamination has further stated that the contract between the plaintiff and defendant was in their possession and that all available discounts & rebates are already mentioned in the contract. However, as already stated the aforesaid contract/agreement has not been produced by plaintiff on record, and the same has been produced by defendant which is Mark DX (i.e. Channel Partner Sales & Support Programme), and further, PW2 has admitted that Mark DX is the agreement between plaintiff and defendant. The witness has further stated that Page 25 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 information about the entitlements etc. by way of agreement duly executed between the parties is received, and that there is a written policy of plaintiff also in addition/in lieu of the contract which is received by the accounts department. However, neither any agreement nor any written policy of plaintiff has been produced on record on behalf of plaintiff as stated above.
16) Furthermore, in his crossexamination, DW1: Mr. Manoj Yadav has stated that Ex.DW1/2 (i.e. Channel Partner Sales & Support Programme) is the agreement which was entered between plaintiff and defendant company and the said document is same as Mark DX which has also been admitted by PW2. The witness has further stated that defendant was appointed as a channel partner through Ex. DW1/2 and also denied the suggestion that defendant was never appointed as channel partner of plaintiff company, nor was granted any benefit pertaining to trade discount/turnover discount/TOD and any of the contents as mentioned in the said alleged document placed by defendant i.e. Ex. DW1/2. The witness has further stated to be correct that there was exclusive dealership agreement between plaintiff and defendant, and denied the suggestion that there was no such exclusive dealership agreement between plaintiff and defendant. The witness has further denied that defendant has received the commission payable by plaintiff. The witness has also denied that entire account has been settled between parties and nothing is payable to defendant. Thus, in light of aforesaid evidence, the court is of the view that whereas plaintiff has claimed the amount of Rs 1,45,506/ against defendant on the basis of closing balance of the statement of account/ledger drawn for the period 01.04.2009 to 23.11.2011, defendant has been able to controvert & disprove the said amount on the scale of preponderance of probabilities and accordingly, issue no. 3 and 4 are accordingly decided against plaintiff and in favour of defendant.
Relief:
17) Thus, in light of findings of the Court on issues as discussed above, the present suit of plaintiff seeking a decree of recovery for Rs 1,45,506/ along with pendent lite Page 26 of 27 (Sonam Singh) Civil Judge07, Central, Delhi M/s. Jaquar Mercantile vs. M/s. Shimera Project Lighting Pvt. Ltd.
Civil Suit No.: 99838/16 & future compound interest @24% per annum against is hereby dismissed without cost.
18) Decree sheet be prepared accordingly.
19) File be consigned to record room after due compliance.
Digitally
signed by
SONAM
SONAM SINGH
SINGH Date:
2021.12.14
17:01:42
+0530
Pronounced in open court: (Sonam Singh)
Dated: 14.12.2021 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note: This Judgment contains twenty seven pages and all the pages have been checked and signed by me.
(Sonam Singh) Civil Judge07, Central, Tis Hazari Courts, Delhi Page 27 of 27 (Sonam Singh) Civil Judge07, Central, Delhi