Delhi District Court
Pawan Bhasin vs Ms Rajat Imaging Pvt. Ltd on 25 April, 2025
IN THE COURT OF MS GOMA DABAS GUPTA:
DISTRICT JUDGE-06 : WEST DISTRICT :
TIS HAZARI COURTS : DELHI
CS No. 12091/16
CNR NO. DLWT01-002861-2015
PAWAN BHASIN
S/O SHRI K K BHASIN
SOLE PROP. M/S ESPECTRUM MEDICAL SOLUTIONS
K-75, UDYOG NAGAR INDUSTRIAL AREA
NEAR PEERA GARHI CHOWK
DELHI
.....PLAINTIFF
VERSUS
M/S RAJAT IMAGING PVT LTD
101/189, PATEL MARG
MAIN INEW SANGANER ROAD
JAIPUR, RAJASTHAN
.....DEFENDANT
DATE OF INSTITUTION : 06.01.2015
DATE OF RESERVED FOR JUDGMENT : 07.04.2025
DATE OF PRONOUNCEMENT OF JUDGMENT : 25.04.2025
____________________________________________________________
AND
COUNTER CLAIM NO.11/25
CNR NO. DLWT01-002523-2025
CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 1 of 34
&
Counter Claim No. 11/25
M/S RAJAT IMAGING PVT LTD
101/189, PATEL MARG
MAIN INEW SANGANER ROAD
JAIPUR, RAJASTHAN
......COUNTER CLAIMANT
VERSUS
PAWAN BHASIN
S/O SHRI K K BHASIN
SOLE PROP. M/S ESPECTRUM MEDICAL SOLUTIONS
K-75, UDYOG NAGAR INDUSTRIAL AREA
NEAR PEERA GARHI CHOWK
DELHI
........DEFENDANT
JUDGMENT
1. Vide this common judgment, I shall decide the suit for recovery filed on behalf of the plaintiff, Pawan Bhasin and the counterclaim filed on behalf of the defendant, M/s Rajat Imaging Pvt Ltd.
Plaintiff's Case
2. Brief facts, as per the plaintiff's case, are as follows:
a. That the plaintiff is a sole proprietor of M/s Espectrum Medical Solutions under which name and style he is carrying his business of supply of hospital machines, equipment indigenous as well as imported.CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 2 of 34
& Counter Claim No. 11/25 b. That the defendant, through its directors Shri Parmod Jain and Shri Trilok Jain contacted the plaintiff at his office for purchase of Hitachi Permanent Magnet MRI scanner AIRIS II (pre-owned) (hereinafter referred to as 'the machine ') and entered into an agreement dated 05.02.2011 by virtue of which it was decided that the said machine will be supplied for a cost of ₹ 82,50,000/- which was inclusive of freight, local transportation, custom duty, custom clearance and installations. The defendant was to provide IEC code, authorisation letter for custom entry tax, other local taxes which were to be borne by the defendant. The agreed payment schedule between the parties is mentioned in para 2 of the plaint. Out of the total consideration of ₹ 82,50,000/- (Rupees Eighty Two Lakhs Fifty Thousand only), ₹ 70,00,000/- (Rupees Seventy Lakhs only) was to be paid through cheque/DD/RTGS and the balance of ₹ 12,50,000/- (Rupees Twelve Lakhs Fifty Thousand only) was to be paid in cash.
c. That, the plaintiff received a total payment of ₹ 65,00,000/-
(Rupees Sixty Five Lakhs only) from the defendant, the details of which are mentioned in para 5 of the plaint. However, out of the said amount, ₹ 7,00,000/- (Rupees Seven Lakhs) were refunded to the directors of the defendant (inadvertently mentioned 'plaintiff' in the plaint ) in their CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 3 of 34 & Counter Claim No. 11/25 respective accounts. Thus, the plaintiff has in totality received an amount of ₹ 58,00,000/- (Rupees Fifty Eight Lakhs only) out of ₹ 82,50,000/- (Rupees Eighty Two Lakhs Fifty Thousand only).
d. That the machine was duly installed to the satisfaction of the directors of the defendant on 29/07/2012 and installation report was sent to them on 30/07/2012. The defendant never objected to the functioning of the machine and started earning by using the same.
e. The defendant has not paid the balance sum of ₹ 24,50,000/- (Rupees Twenty Four Lakhs only) to the plaintiff despite having received the machine and using the same. Hence, the present suit.
Defendant's Case
3. The defendant filed written statement and also a counterclaim along with it. The defendant's case in brief is as follows:
i. That the suit filed by the plaintiff is not maintainable in view of section 69(2) of the Indian Partnership Act as the plaintiff firm is being carried on by two partners namely Mr Pawan Bhasin and Mr Sanjiv Kumar who are the partners of the unregistered partnership firm of the plaintiff.
ii. That the plaint is not signed and verified by proper CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 4 of 34 & Counter Claim No. 11/25 and competent person.
iii. That the plaintiff had supplied 'the machine' pursuant to the agreement dated 05.02.2011. However, as per the agreement, the plaintiff was to supply the 2002 model of the machine but in breach of the same the plaintiff supplied the machine of 2000 model with obsolete shipment. On account of this breach of contract, the defendant suffered huge monetary loss as well as loss of reputation and its public image has been tarnished.
iv. The defendant has paid ₹ 65,51,000/- to the plaintiff already. Out of this payment, ₹ 51,000/- were paid in cash.
v. That as per the agreement, the plaintiff was under duty to deliver the machine within 90 days from the date of agreement. The defendant received shipment of the machine after a delay of 14 months. Subsequent to the delivery of machine, the defendant made continuous efforts and spent a considerable amount of money to shift the machine to its premises. Even after shifting of the machine to the premises of the defendant, the plaintiff did not install the above-mentioned machine on its own and only after repeated requests from the defendant, the plaintiff sent his engineers to install the CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 5 of 34 & Counter Claim No. 11/25 machine. During the installation process, the defendant came to know about the fact that the machine shipped by the plaintiff was not of the specifications as per the agreement dated 05/02/2011 and the confirmation email dated 23/03/2011. The machine was of the year 2000 model and other accessories and equipments were not provided by the plaintiff. The defendant wrote a complaint letter dated 22/06/2012 to the plaintiff raising his grievance. On 29/07/2012 the machine was installed by the plaintiff, however the equipments were not provided to the defendant. The plaintiff was also required to provide Software Level 5.0 in the above-mentioned machine which was not provided. In fact, Software Level 4.5 was provided and due to the same, the defendant was not able to conduct MRCP and diffusion on the patients and suffered a loss to the tune of Rs. 2,75,000/- to Rs. 3,00,000/- per annum. vi. After 29.07.2012, the MRI machine never functioned properly. Time and again complaint was sent to the plaintiff, however no response was given by him. The defendant on 20/12/2012 again wrote a letter to the plaintiff and pointed out the defaults in the machine and also raised grievances about the equipment which CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 6 of 34 & Counter Claim No. 11/25 were not provided in terms of the agreement. Vide email dated 20/12/2012, certain other problems which were recurring in the machine were also mentioned and communicated to the plaintiff.
vii. That the machine and equipment provided by the plaintiff was of substandard quality and due to the same, UPS provided by the plaintiff stop functioning on 12/03/2013 and the defendant was compelled to purchase a new UPS on the same date for Rs 1,27,000/-.
viii. That as per the agreement between the parties, the plaintiff was also required to provide motherboard for the machine. Due to substandard motherboard provided by the plaintiff, the defendant was compelled to buy a brand-new motherboard for an additional cost of ₹ 1,05,000/-.
ix. That as per the agreement between the parties dated 05/02/2011, the plaintiff was required to provide phased array coil with the above-mentioned machine and also charged for the same. However, normal coil was provided by the plaintiff which was of much less value in comparison to phased array coil. x. That as per the terms of the agreement, the plaintiff was required to provide tele radiology software on the CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 7 of 34 & Counter Claim No. 11/25 computer of the defendant and the reporting doctor, however the same was not provided and an additional charge of ₹ 90,000/- was taken from the defendant by the plaintiff for the same. The plaintiff was also required to provide master reboot CD of the above- mentioned machine which was not provided which puts an additional cost of ₹ 50,000/- on the defendant. xi. On the basis of above grievances as suffered by the defendant, the defendant has filed a counterclaim seeking recovery of ₹ 36,31,395/- (Rupees Thirty Six Lakhs Thirty One Thousand Three Hundred Ninety Five only).
Replication
4. The plaintiff has filed replication to the written statement of the defendant. The plaintiff has submitted that the plaintiff is sole proprietorship form. The plaintiff has denied any breach of contract on the part of the plaintiff.
5. The plaintiff has also filed Written Statement to the Counter-claim filed by the defendant and has denied any liability towards the defendant and has prayed for dismissal of the counterclaim filed by the defendant.
Issues CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 8 of 34 & Counter Claim No. 11/25
6. Vide common order dated 24/08/2017, the following issues have been framed in the suit as well as counterclaim:
Issue No.1:- Whether the plaint has been signed and verified by a competent person? OPP Issue No.2:- Whether the plaintiff is entitled to the decree of the amount of ₹ 31 lakhs? OPP Issue No.3:- Whether the plaintiff is entitled to the interest on the suit amount, if so at what rate and for which period? OPD Issue No.4:- Whether counterclaim has been signed and verified and instituted by duly authorised person? OP/Plaintiff Issue No.5:- Whether Counter Claimant is entitled for the suit amount to the decree of Rs. 36,31,395/-? OP/counter claimant Issue No.6:- Whether counter claimant is entitled for interest, if so, at what rate and for which period ?OP/counter claimant Issue No.7:- Relief Plaintiff's Evidence
7. In support of his case, plaintiff has examined himself as PW-1 by way of affidavit Ex.PW1/A and relied upon following documents:-
(1) Copy of quotation as given on 07.02.2010 is Ex.PW1/1 (2) Agreement dated 05.02.2011 is Ex.PW1/2 (3) Copy of Invoice for Custom duty is Ex.PW1/3 (4) Copy of invoice of machine is Ex.PW1/4 CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 9 of 34 & Counter Claim No. 11/25 (5) Copy of debit note is Ex.PW1/5 (6) Copy of statement of account for 01.04.2010 to 31.03.2011 is Ex.PW1/6 (7) Copy of notice under Order 12 Rule 8 CPC is Ex.PW1/6A (8) Legal notice dated 20.02.2013 is Ex.PW1/7 (9) Reply dated 08.03.2013 of legal notice is Ex.PW1/8 (10) Copy of reminder dated 08.07.2014 and postal receipts are Ex.PW1/9 to Ex.PW1/11 Vide order dated 24.05.2023, PE was closed.
Defendant's Evidence
8. Defendant examined Sh Pramod Jain as DW-1 by way of affidavit Ex.DW1/A, who has relied upon following documents:-
(1) Copy of mail dated 23.03.2011 is Ex.DW1/2 (2) Confirmation of mail dated 23.03.2011 is Ex.DW1/3 (3) Copy of mail dated 23.06.2011 sent by plaintiff is EX.DW1/4 (4) Copy of mail dated 18.01.2012 sent by plaintiff is Ex.DW1/5 (5) Copy of complaint/letter dated 22.06.2012 lodged by defendant to the office of plaintiff is Ex.DW1/6 (6) Carbon copy of report dated 29.07.2012 is Ex.DW1/7 (7) Copy of complaint sent through e-mail dated 20.12.2012 is Ex.DW1/8 CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 10 of 34 & Counter Claim No. 11/25 (8) Copy of e-mail dated 27.12.2012 is Ex.DW1/9 (9) Copy of installation report dated 31.12.2012 is Ex.DW1/10 (10) Copy of E-mail dated 22.01.2013 is Ex.DW1/11 (11) Copy of complaint sent through email dated 12.03.2013 is Ex.DW1/12 (12) Copy of bill dated 12.03.2013 is Ex.DW1/13 (13) Copy of email dated 16.07.2013 is Ex.DW1/14 (14) Copy of invoice dated 19.07.2013 is Ex.DW1/15 (objected to mode of proof) (15) Copy of bill dated 02.06.2014 is Ex.DW1/16 (16) Certificate u/s 65-B of Indian evidence Act is Ex.DW1/17 (17) Board of Director Resolution dated 05.05.2015 is Ex.DW1/1 Arguments
9. The counsel for plaintiff has argued that the plaintiff has received total of ₹ 65,00,000/- from the defendant out of total sale consideration of ₹ 82,50,000/-. Out of the said sum of ₹ 65,00,000/- (Rupees Sixty Five Lakhs only), Rs. 7,00,000/- (Rupees Seven lakhs only) were returned to the director of the defendant as per the request of the defendant. The machine agreed upon by the parties for which the parties had entered into contract was delivered to the defendant on 29/03/2012 and was duly installed as per the satisfaction of the defendant on 29/07/2012. Consequently, installation reports dated 29/07/2012 and 31/12/2012 were prepared and handed over to the CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 11 of 34 & Counter Claim No. 11/25 defendant which was never objected. Despite installation of the said machine, the defendant failed to adhere to the payment schedule as agreed. Further, a cheque of ₹ 65 lakhs was given by the plaintiff as security for delivering the machine in question and the said cheque was returned after delivery of the machine which shows that the defendant was satisfied with the delivery of the machine. It is further argued that the defendant has not proved that the model of 2000 is inferior to the model of 2001. Since the defendant never protested against the installation of the said machine and rather gained profits by using the said machine, the defendant cannot claim any compensation for deficiencies, if any, in the said machine. And therefore, the plaintiff is entitled to the recovery of the amount as prayed for.
10. Per contra, the defendant has argued that the plaintiff has committed a breach of contract by providing a machine of year 2000 model instead of 2002 model which was actually agreed upon by the parties. Along with the machine, obsolete equipments were provided which caused huge monetary loss as well as loss of reputation to the defendant. Further, the machine provided by the plaintiff did not match the specifications as per the email dated 23/03/2011 sent by the plaintiff. Under the said agreement between the parties, the plaintiff was bound to deliver the machine within 90 days of the agreement but the same was actually delivered after a delay of 14 CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 12 of 34 & Counter Claim No. 11/25 months. The plaintiff had further failed to comply with the contract between the parties by not providing the AMC which the defendant had to buy from a third party by spending additional amount. The equipments provided along with the machine were not complete and thus, the defendant immediately sent complaint dated 22/06/2012 to the plaintiff. As per the agreement between the parties, the plaintiff was required to provide software level 5.0, however the plaintiff actually provided software level 4.5 and due to this the defendant suffered loss to the tune of Rs.2,75,000/- to Rs.3,00,000/- per annum. Further, the plaintiff was required to provide phased array coils in the machine, however, normal coil was provided by the plaintiff. The difference between phased array coil and normal coil is ₹ 1,50,000/- each and thus the defendant suffered an additional cost of ₹ 9,00,000/-. The UPS provided by the plaintiff stopped functioning on 12/03/2013 and due to this the defendant was compelled to purchase a new UPS for which the defendant had to incur additional cost. The plaintiff further committed breach of contract by not providing Tele radiology software on the computer of the defendant and for this the defendant incurred additional cost. The motherboard provided by the plaintiff was also of substandard quality and therefore the defendant had to buy a new motherboard. The plaintiff was also required to provide master reboot CD of the machine which was not provided by the plaintiff putting an additional cost upon the defendant. The defendant has argued that the suit filed by the plaintiff is an abuse of CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 13 of 34 & Counter Claim No. 11/25 process of law and is liable to be dismissed. The defendant has argued that he is entitled for the amount of ₹ 36,31,395/- with cost and interest at the rate of 18% per annum as claimed in the counter claim.
11. I have heard arguments advanced by counsel for the parties. Record perused. I have also perused the written submissions alongwith citations filed by both the parties.
ISSUE-WISE FINDINGS Issue No. 1:- Whether the plaint has been signed and verified by a competent person? OPP
12. The onus to prove this issue is upon the plaintiff. The present suit has been signed, verified and instituted by Sh. Pawan Bhasin as proprietor of M/s Espectrum Medical Solutions. However, the defendant has raised objection in his written statement that the agreement dated 05/02/2011, on which the cause of action for filing the present suit has arisen, was signed by one Sh. Sanjeev Kumar and not by the present plaintiff. Though the said objection has been denied by the plaintiff in his replication, however, nothing more has been averred in the replication. The plaintiff has not deposed anything on the said issue even in his affidavit of evidence which is Ex.PW1/A. However, during the cross-examination, PW-1 has CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 14 of 34 & Counter Claim No. 11/25 categorically stated that Sh. Sanjiv Kumar was his authorised signatory and that he has been the proprietor of M/s Espectrum Medical Solutions since its formation and till the date of his cross- examination. It is interesting to that in the written statement the defendant has submitted that the plaintiff is a partnership firm and has raised objection of the same not been registered and incompetent to file the present suit. Whereas, in the cross-examination of PW1 a question has been put to him regarding Sh. Sanjeev Kumar been director of M/s Espectrum Medical Solutions. The said two pleas are mutually destructive. The present issue on the competence of the plaintiff comes to rest in the cross-examination of DW1 wherein the DW1 has stated he has dealt with Mr Pawan Bhasin through Sh. Sanjeev, who was authorised signatory of M/s Espectrum Medical Solutions. During cross-examination of DW1 it has also come on record that there has been a previous transaction between the plaintiff and the defendant herein in the year 2008. Thus, plaintiff and the defendant were no strangers at the time of entering into the present transaction dated 05/02/2011. Thus on the basis of deposition of PW1 and DW1, it is duly proved that the plaint has been signed and verified by competent person. Thus, issue no. 1 is decided in favour of plaintiff.
13. Issue No. 4:- Whether counterclaim has been signed and verified and instituted by duly authorised person? OP/Plaintiff CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 15 of 34 & Counter Claim No. 11/25 Defendant is a company incorporated under the Companies Act, 1956. Order 29 Rule 1 of CPC deals with the filing of suits by or against corporations which provides that in a suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case. A company being a juristic entity can authorize any person to sign the plaint or the written statement on its behalf. The authorisation would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code. A person may be expressly authorised to sign the pleadings on behalf of the company by a resolution passed by the Board of Directors to that effect or by a power of attorney being executed in favour of any individual. A company can even ratify the actions of its officers in signing the pleadings by an express or implied authorization. In the present case, Board of Director Resolution dated 05.05.2015 is filed on behalf of Mr. Pramod Jain which is Ex.DW1/1. Significantly, pursuant to the specific authorization to Mr. Pramod Jain, the Defendant Company has consistently participated in the present proceedings and this leaves no room for doubt that the authorization was not valid. The prosecution of the suit is itself ratification of the authorization given by the Board in favour of Mr. Pramod Jain. Hence, issue no.4 is decided in favour of Defendant and against the Plaintiff.
CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 16 of 34& Counter Claim No. 11/25 14. With respect to Issue No. 2, 3,5 & 6 Issue No.2:-Whether the plaintiff is entitled to the decree of the amount of ₹ 31 lakhs? OPP Issue No.3:- Whether the plaintiff is entitled to the interest on the suit amount, if so at what rate and for which period? OPD Issue No.5:- Whether Counter Claimant is entitled for the suit amount to the decree of Rs. 36,31,395/-? OP/counter claimant Issue No.6:- Whether counter claimant is entitled for interest, if so, at what rate and for which period ?OP/counter claimant (Inadvertently, the onus to prove issue no.3 is written upon defendant as OPD, instead of OPP) The plaintiff has filed evidence by way of affidavit which is Ex.PW1/A. In his cross-examination, PW1 has admitted that as per the agreement between the parties, exhibit DW1/2, the plaintiff had not supplied the machine model of the year that was agreed upon between the parties. It is further admitted by the plaintiff that the plaintiff had not adhered to the time schedule as agreed by the parties, that is of 90 days. However, the plaintiff has voluntarily deposed that since the defendant did not make the payment as per the schedule, the machine agreed upon was sold, and when the payment was made, at that time the agreed machine was not available as being already sold. The plaintiff has also admitted that as per the agreement between the parties, the plaintiff was to supply the Software Level 5.0 but actually the plaintiff supplied Software Level 4.5. The CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 17 of 34 & Counter Claim No. 11/25 plaintiff has further admitted that he has received a total amount of ₹ 65,00,000/- from the defendant, however from the said amount ₹ 7,00,000/- were returned to Sh. Pramod Kumar and not to the defendant company. The plaintiff has denied that the total sale consideration of ₹ 82,50,000/- included the AMC of ₹ 2,25,000/- and warranty of ₹ 2,50,000/-. The plaintiff has also denied that he has not provided UPS to the defendant. But, the plaintiff has admitted that the defendant had purchased another UPS from the market with his consent. The plaintiff has voluntarily deposed that this was because the defendant wanted to have a UPS with extended power backup of 8 to 10 hours and the same was not possible in the UPS which was supplied with the machine. The plaintiff has denied that he had not supplied Tele radiology to the defendant, but, the plaintiff has admitted that he has not supplied master reboot CD to the defendant.
15. Evidence by way of affidavit was filed on behalf of Mr Pramod Jain, DW1, which is Ex.DW1/A. The DW 1 has deposed that he is the director of the defendant company and has been authorised vide directors resolution dated 03/04/2015. In para 7 of Ex.DW1/A, the DW1 has deposed that the machine as agreed between the parties was to be of the model 2001 or above along with various other specifications as mentioned in the said paragraph. The defendant has deposed that with effect from 12/03/2011 till 02/05/2011 the defendant company had paid ₹ 65,51,000/- the plaintiff. Paragraph CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 18 of 34 & Counter Claim No. 11/25 No.30 of Ex.DW1/A, the DW1 has deposed that he is entitled to recovery of ₹ 36,31,395/- from the plaintiff for deficiency of services as per the table mentioned in the said paragraph which is reproduced here in below:
Sr. No. Particulars Amount
1. Machine Model 7,20,000(as 10&
DEP.)
2. Phased Array Coil 9,00,000 (as 1.5
Lac per coil for 6
coil)
3. Interest on 7,13,188
Rs.45,50,000 loan for
14 months as charged
by Reliance capital
4. Interest on our amount 3,26,667
20 Lacs @ 14 % for
14 months
5. Cash given at the time 1,56,000
of RF shielding
6. UPS 1,27,000
7. AMC 1,68,540
8. Tele radiology 90,000
Software
9. Software 4.5/5. OR 2.75 Lacs to 3
Lacs Loss per
annum
10. Master Rebbot CD 50,000
11. Mother Board 1,05,000
Total 36,31,395
16. In his cross-examination, DW1 has deposed that he had purchased two CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 19 of 34 & Counter Claim No. 11/25 machines from the plaintiff, one in the year 2008 and another in the year 2012. He has deposed that both the machines have been sold out in the year 2017. He has further deposed that the MRI Machine was further given in buy back against purchase of a new machine and for the said machine, amount of ₹ 35-40 Lakhs was adjusted in the price of new machine. The DW1 has admitted that he has not paid the full consideration amount for MRI machine as satisfactory services were not provided and the machine so supplied was substandard and was not of agreed model. The DW1 has deposed that from the MRI machine bought from the plaintiff, the defendant used to do an average of 3-4 scans per day till the MRI machine was sold in the year 2017, the rate of per scan can being ₹ 2000/- to ₹ 3000/-. The defendant has admitted that he does not have any receipt of ₹ 51,000/- which is stated to be paid to the plaintiff in cash towards part payment of the said MRI machine. The DW1 has further deposed that a cheque of ₹ 65 lakhs was given by the plaintiff as security for delivery of MRI machine which was returned to the plaintiff after delivery of the said MRI machine. The defendant has further admitted that the plaintiff had supplied 8 simple coils along with the MRI machine. The DW1 has further deposed that as per the agreement dated 05/02/2011, no master reboot CD was to be supplied by the plaintiff and the AMC for the MRI machine was free for the first year after warranty period and thereafter it was chargeable. The DW1 has further admitted that no amount was paid at the time of CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 20 of 34 & Counter Claim No. 11/25 custom clearance.
17. Coming to the facts of the present case. This case is based upon agreement between the plaintiff and the defendant dated 05/02/2011 which is Ex.PW1/2. Perusal of the said agreement elaborates the specifications to be followed by both the parties. As per the said agreement, the machine was to be provided to the defendant within 90 days subject to the payment schedule to be met as per the agreement. The the payment schedule is also mentioned in the said agreement. As per the payment schedule, the defendant was under an obligation to make payment to the plaintiff as under:
a. ₹ 10 Lakhs advance as token advance at the time of the agreement b. ₹ 45 Lakhs within 15 days after the 1st payment.
c. ₹ 10 Lakhs at the time of custom clearance d. ₹ 5 Lakhs at the time of RF shielding. e. Balance of ₹ 12.50 Lakhs machine against installations.
18. It is the case of the plaintiff that the 1 st payment was made by the defendant on 16/03/2011 while defendant was supposed to make payment of ₹ 10 Lakhs on 05/02/2011, that is, at the time of agreement. The total payment of ₹ 11 Lakhs was made by the defendant by 23/04/2011 which was to be made on 05/02/2011 itself.CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 21 of 34
& Counter Claim No. 11/25 These payments have been admitted by the defendant in his written statement. However the defendant has submitted that an additional payment of ₹ 51,000/- in cash was made to the plaintiff. In the cross- examination the DW1 has admitted that he has no receipts to prove the payment of ₹ 51,000/- in cash to the plaintiff. Thus the payment of ₹ 51,000/- cash by the defendant to the plaintiff cannot be said to be proved in the absence of any evidence.
19. By admitting the contents of No. 5 of the plaint, the defendant has admitted that there was certainly delay in making the payments. Going by the principles of law contract, the parties to the contract are under an obligation to perform their respective part of the contract. In the present case, admittedly, the defendant has not adhered to the payment schedule as mentioned in the agreement dated 05/02/2011. This amounts to breach of obligation on the part of the defendant. The contention of the defendant that the plaintiff is liable to pay damages to the defendant on the ground that the machine was not supplied within 90 days is hence rejected on the ground that the delivery within 90 days was subject to payment by the defendant as per the agreement.
20. Before discussing the deficiencies in the machine, if any, and breach of other obligations, it is important to discuss the law on the same.
Section 13 of Sale of Goods Act: When condition to be CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 22 of 34 & Counter Claim No. 11/25 treated as warranty- Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.
Section 16 of Sale of Goods Act : - Implied conditions as to quality or fitness.
Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:--
xxx (2) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchantable quality:
Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.
xxx CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 23 of 34 & Counter Claim No. 11/25 Section 59 of Sale of Goods Act : - Remedy for breach of warranty. (1) Where there is a breach of warranty by file seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may--
(a) set up against the seller the breach of warranty in diminution or extinction of the price; or
(b) sue the seller for damages for breach of warranty.
(2) The fact that a buyer has set up a breach of warranty in diminution or extinction of the price does not prevent him from suing for the same breach of warranty if he has suffered further damage.
21. Now coming to the deficiencies in the machine provided, as alleged by the defendant. It is the case of the defendant that the machine provided to the defendant did not meet all the specifications of the agreement between the parties. It is an admitted case of both the parties that the said machine was delivered to the defendant on 02/03/2012 and installed on 29/07/2012. The service report/invoice with respect to the same is Ex.DW1/7. Another service report/invoice CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 24 of 34 & Counter Claim No. 11/25 dated 31/12/2012 is Ex.PW1/D1 and also Ex.DW1/10. Admittedly, defendant received the machine on 02.03.2012 and no grievance was raised by the defendant uptill 22.06.2012. The defendant has relied upon Ex.DW1/6 which is letter dated 22/06/2012 written by the defendant company to the plaintiff. In the said letter again the defendant has admitted that the payment schedule as per agreement dated 05/02/2011 was not adhered to. In the said letter it is stated that the defendant received the machine on 02/03/2012 and the same does not comply with the specifications as agreed upon between the parties. Admittedly, the machine was received on 02/03/2012 and installed on 29/07/2012. No justification has been provided by the defendant for not raising any dispute with respect to any deficiencies in the machine from the month of March till 22/06/2012 when the first complaint email was written by the defendant to the plaintiff. By accepting the machine and the other equipments, the defendant has waived his right to repudiate the contract. Further, in the present case the buyer had examined the goods and accepted the same by way of installation despite being aware of deficiencies. This amounts to waiver by acquiescence which was considered in Waman Shriniwas Kini VS Ratilal Bhagwandas & Co., 1959 Supp (2) SCR 21 , observing as follows:
"13......Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 25 of 34 & Counter Claim No. 11/25 insist upon the right. It may be deduced from acquiescence or may be implied....".
22. The defendant has sought damages from the plaintiff in his counter claim. For the same, I shall discuss the law relating to breach of contract.
Section 73 of Indian Contract Act : Compensation for loss or damage caused by breach of contract.--
When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
xxx It is settled law that mere breach of contract does not entitle grant of damages and it is necessary that unless by breach of contract losses are caused, a person who is guilty of breach cannot claim damages. Section 73 of the Indian Contract Act, 1872 clearly provides that an aggrieved person cannot claim damages unless losses are proved to be caused to him on account of breach of contract by the other side.
23. My attention is drawn to Ex.DW1/3 whereby the plaintiff has offered to sell Hittachi AIRIS II Open MRI system of year 2002 manufacture CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 26 of 34 & Counter Claim No. 11/25 with software level 5.0 R3 and total 6 coils. It is an admitted case of the plaintiff that the machine that was actually provided was of year 2000 manufacture with software level 4.5. The defendant has averred that he has incurred a loss of rupees 7,20,000/- as the machine was not of the model as specified. The said machine was delivered to the defendant on 02/03/2012 and the defendant was well aware of the deficiencies in the machine which is reflected in his letter dated 22/06/2012. Despite the same, the defendant accepted installation of the machine on 29/07/2012. Thus, the defendant has waived his right to repudiate the contract and to seek compensation on the basis of law discussed above. My attention is also drawn to another admitted fact that the plaintiff had given a security cheque of ₹ 65 Lakhs to the defendant which was duly returned by the defendant to the plaintiff. This implies somewhere satisfaction on the part of the defendant as the said cheque was in the nature of a security cheque. No justification whatsoever has been given by the defendant for returning the said cheque. Further, he has not proved any loss to entitle him to the amounts as claimed in this para. To seek damages it is imperative that the party complaining of such breach has suffered an injury as a result of the breach of the contract by the counter party. Merely praying for compensation without proving any loss does not entitle a party to claim the same. Also, in his cross-examination DW1 has deposed that he had not placed any document to show that the model of the year 2000 is inferior/of less value than the model of CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 27 of 34 & Counter Claim No. 11/25 year 2001 and above. Hence, the defendant is not entitled to any damages towards the wrong model of the machine provided on the ground of acquiescence on the part of defendant and in the absence of any evidence to prove the difference in price of the 2002 model of machine and 2000 model of the machine.
24. Further, the defendant has submitted that the plaintiff had supplied normal coils as against the agreed phased any coils. In para No. 25 of evidence by way of affidavit, DW1 has deposed that the defendant had to bear difference of price between phased array coils and normal coils for an additional amount of ₹ 9 Lakhs. The plaintiff has not cross-examined the defendant on this aspect. However, even the defendant has not produced any document on record to prove incurring of the said amount of ₹ 9 lakhs towards such coils. The defendant has sought recovery of Rs. 1,56,000/- towards cash given at the time of RF shielding. No evidence has on this aspect. In the absence of any documents to prove the same been adduced, the said submissions are rejected for want of proof. On the same lines, the defendant's submission of incurring ₹ 90,000/- towards teleradiology software and his prayer accordingly is also rejected for the absence of any evidence to prove the same.
25. The defendant has further submitted that he has incurred a loss of Rs.
2.75 Lakhs to 3 Lakhs for the outdated software that is 4.5 as against CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 28 of 34 & Counter Claim No. 11/25 5.0. Though the same is admitted by the plaintiff that the software which was provided by the plaintiff was not the same as agreed upon between the parties, but the defendant has not supported his case by leading any evidence to prove whether it suffered any loss due to the software of lower version. Rather, the defendant has contrarily stated in his cross-examination that he used to do 3-4 scans per day with the said machine each scan being done for Rs. 2000 to Rs. 3000. In the absence of any evidence on the aspect of loss, the defendant cannot be held entitled to such amount as claimed.
26. The defendant has further claimed ₹ 50,000/- as damages for not providing master reboot CD. However, in his cross-examination, DW1 has admitted that no master reboot CD was to be supplied by the plaintiff as per the agreement dated 05/02/2011. Thus, there exists no question of any compensation towards the master reboot CD. The defendant has further claimed Rs. 1,05,000/- as damages towards the motherboard. Invoice of the same is exhibit DW1/16 which is dated 02/06/2014. The said invoice is between 'Victory India Imaging' and the defendant company and the plaintiff is not a privy to the same. Further, the same was purchased without any knowledge or consent of the plaintiff. Also, it is a mere invoice without being supported by any mode of payment which is dated two years after installation of the said machine. The plaintiff cannot be held liable for the same after a gap of two years, more so over when he was himself an CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 29 of 34 & Counter Claim No. 11/25 unpaid seller.
27. The defendant has sought damages to the tune of Rs.1,27,000/-
towards UPS and ₹ 1,68,542/- towards AMC. The defendant has also placed on record invoice for purchasing the UPS which is Ex.DW1/13. The plaintiff in his cross-examination has deposed that he had given his consent to the defendant for purchasing the UPS. Though no mode of payment has been proved by the defendant towards the UPS, but on the basis of admission of the plaintiff, I am inclined towards reimbursing the amount of the same in favour of the defendant. Now coming to the AMC. The defendant has admitted in his cross-examination that he had taken the AMC after the period of free AMC. It cannot be expected from the plaintiff to have provided after sale services to the defendant when there was a substantial balance amount payable by the defendant to the plaintiff. Even otherwise, the invoice placed on record with respect to the AMC which is Ex.DW1/15 is between the defendant and some third party. The plaintiff is not a privy to the same. The same has not been proved by calling any witness. Also, it is a mere invoice without being supported by any mode of payment and thus, cannot be said to be proved for the purpose of granting damages in favour of the defendant. Thus the defendant is not entitled to any recovery towards the AMC charges.
CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 30 of 34& Counter Claim No. 11/25
28. Reliance is also placed upon the decision of Hon'ble Delhi high Court in M/S R B Enterprises versus Union of India decided on 18/12/2023 and relevant portion of the said judgment is extracted as below:- "29. It would be relevant to allude to the judgment of the Division Bench of Kerala High Court in State of Kerala v. United Shippers and Dredgers, AIR 1982 Kerala 281 wherein it was held as under:-
"7. ...... "Compensation" is "something that constitutes an equivalent or recompense; making things equivalent; satisfying or making amends". This is how the word "compensation" has been explained in Biswas's Encyclopaedic Law Dictionary and in Jowitt's Dictionary of English Law. Black's Law Dictionary explains compensation as "indemnification; payment of damages; making amends; making whole; giving an equivalent or substitute of equal value; that which is necessary to restore an injured party to his former position;" "Compensation"
signifies restoration of position or making things equivalent or recompense. Necessarily something must have happened as a result of the breach of contract which requires an act of recompense or restoration. If the breach has not resulted in any harm, loss or damage to the other party, the question of recompensing him or restoring him to something which he has lost would not arise. That is the reason why Section 73 of the Act states "compensation for any loss or damage caused to him thereby". However grievous or serious an act of breach may be, if it does not lead to any loss or damage caused to the other party Section 73 will not give rise to right of compensation."
CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 31 of 34& Counter Claim No. 11/25
29. It is submitted by the plaintiff that out of total of ₹ 65 Lakhs received from the defendant, ₹ 7 Lakhs were returned to Mr Pramod Jain, who is the director of the defendant company. The same by the defendant in his cross-examination where he has stated that Mr Pramod Jain received a total amount of ₹ 7 Lakhs through net banking but has voluntarily deposed that the said transaction was in personal account and has nothing to do with the defendant. I find merit in the submission made by the defendant. It is a settled principle of law that company is a separate legal entity from its directors. An amount paid to a director cannot be said to be a payment made to company. Thus the plaintiff is not entitled to recovery of ₹ 7 Lakhs paid to the director of the company.
30. The defendant has sought recovery of amount of ₹ 7,13,188/- towards interest on ₹ 45,50,000/- loan for 14 months as charged by Reliance capital. The defendant has further sought recovery of ₹ 32,66,67/- towards interest on amount of ₹ 20 Lakhs at the rate of 14% for 14 months. It is a settled principle of law that he who seeks equity must do equity. In the present case it is admitted by the defendant that he had not made the payment as per the schedule in the agreement dated 05/02/2011. As per the plaintiff, due to the non-compliance of the payment schedule on the part of the defendant the delivery of the machine could not be made in time. Even after receiving the machine, admittedly the defendant has not paid full payment of the CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 32 of 34 & Counter Claim No. 11/25 said machine. Applying the principles of equity, I am of the opinion that the defendant is not entitled to claim the said amounts paid towards interest.
31. Accordingly the issues number 2 and 3 are partly decided in favour of the plaintiff and partly decided in favour of the defendant. The issues No. 5 and 6 are decided against the defendant/counter claimant.
32. The plaintiff is entitled to recovery of balance amount of ₹ 17,50,000/-. Out of the said amount rupees 1,27,000/- is to be deducted towards UPS charges awarded in favour of defendant. Thus, the plaintiff is entitled to recovery of ₹ 16,23,000/- from the defendant. Interest at the rate of 9% per annum is also awarded in favour of the plaintiff.
Relief
33. In view of the above discussion, the suit filed by plaintiff is partially decreed for a sum of Rs. 16,23,000/- (Rupees Sixteen Lakhs Twenty Three Thousand only) alongwith pendente lite and future interest @ 9% per annum from the date of installation of machine, i.e 29.07.2012 till its realization and the counter claim filed by defendant/counter claim stands dismissed. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 33 of 34& Counter Claim No. 11/25
34. Original documents, if any, be returned to the parties on filing certified copies thereof. All the pending applications, if any, stand disposed of accordingly.
35. File be consigned to record room as per rules Digitally signed by GOMA GOMA GUPTA DABAS DABAS Date:
Announced in the open court on GUPTA 2025.04.26 11:54:08 25.04.2025 +0530 (Goma Dabas Gupta) District Judge-06 West District, Tis Hazari Courts, Delhi/25.04.2025 CS No. 12091/16 Pawan Bhasin Vs. M/s Rajat Imaging Pvt Ltd. Page 34 of 34 & Counter Claim No. 11/25