Delhi District Court
Ambika Tubes Pvt Ltd vs Matrix Global Pvt Ltd on 30 May, 2022
IN THE COURT OF DISTRICT JUDGE
(COMMERCIAL COURT-2)
SOUTH DISTRICT, SAKET COURTS: NEW DELHI
CS (COMM) 345/2019
Ambika Tubes Pvt Ltd. .........plaintiff
Through its AR Sh Nitin Gupta
At 14, Gyan Park, Delhi - 110051
versus
Matrix Global Pvt Ltd. ...........defendant no. 1
Hightech Healthcare Pvt Ltd. ...........defendant no. 2
(i) 137 Somdutt Chambers-II,
9 Bhikaji Cama Place,
New Delhi - 110066
(ii) A-21, Green Park,
New Delhi -110016
(iii) F-31, Sector-6, Noida-201310
Uttar Pradesh
Rajesh Sondhi ...........defendant no. 3
s/o Sh Prehlad Rai Sondhi
Director of both 1 & 2
A-61, Shivalik, New Delhi - 110017
also at
(i) A-21, Green Park, New Delhi - 110016
(ii) 14/6, (LGF) , Kalkaji, New Delhi - 110019
Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 1
Prabhat Kumar ...........defendant no. 4
s/o Satya Deo Singh (Director)
8061-C, Pocket-8, Vasant Kunj,
New Delhi - 110070
Date of institution : 25.10.2019
Date of arguments : 30.05.2022
Date of judgment : 30.05.2022
JUDGMENT
1. This is a suit for recovery of Rs.38,90,574/-. In brief facts of the case are that the plaintiff company is a Private Limited Company incorporated under the Companies Act 1956 having its registered office at 14 Gyan Park, Delhi 110051. It provides multiple services which includes trading and distribution of seamless steel pipe , carbon steel pipe, etc., to various entities in India and abroad and is engaged in the procurement, sale-purchase of "Focus Market Licence" (hereinafter referred to as licenses).
2.0 It is pleaded that Matrix Global Pvt Ltd. (D-1) through its Directors Rajesh Sondhi and Prabhat Kumar (D-3 and D-4) approached the plaintiff around April 2014 for sale of said licences against its export to Focus Market Countries as per Foreign Trade Policy and introduced Hightech Healthcare Pvt Ltd. (D-2) as one of its Group Companies. On 15.04.2014, a Memorandum of Understanding for sale of Focus Market Licences (hereinafter referred to as Agreement) was executed and signed between plaintiff and defendants.
2.1 In terms of MOU dated 15.04.2014, plaintiff agreed to pay to the defendants a sum of Rs. 45,00,000/- as advance towards the purchase Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 2 of such licences being 90% of the combined value of such licences. On 15.04.2014, plaintiff made a payment of Rs. 37,00,000/- to D-1 and Rs. 8,00,000/- to D-2 being approximately 90% of the combined purchase value of said licences. An additional amount of Rs. 5,00,000/- was paid to plaintiff on 22.04.2014. Defendants provided documents to the plaintiff for a licence value of only Rs. 9,91,424/- within the agreed period and raised an invoice dated 28.05.2014 showing sale of FPS license no. 051038763 for Rs. 8,42,710 including DVAT of 5%. It is stated that the defendants were aware of the agreement and market practice of discounted purchase price of said licences but failed to comply with the terms of agreement i.e. providing documents to apply for issue of FPS liencese and sale of said licences at the prevailing market value reduced by business margin. 2.2 It is further the case of plaintiff that the defendants in order to illegally extract monies from the plaintiff fraudulently raised inaccurate invoices. It is stated that documents provided by the defendants in August/September 2014 to the plaintiff against which licence no. 0519006935 and 0519007570 issued to the defendants adjusting for 85% rate as per MOU and additional compensation of three months delay @ 4% per month for blockage of funds, had adjusted value in hands of the plaintiff of only Rs. 22,10,630/- and defendants issued invoice for Rs. 22,71,195/-. Documents were provided by the defendants in February/march 2015 to the plaintiff. Against which licence no. 0519021598 and 0519021597 issued to the defendants, adjusting for 85% rate as per MOU and additional compensation of three months delay @ 4% per month for blockage of funds adjusted value in hands of the plaintiff of only Rs.6,07,846/- and defendants issued invoice for Rs.6,88,127/-. It is the case of plaintiff that defendants raised following invoices to the Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 3 plaintiff.
S. Invoice No. Invoice date Licence No. Licence Discounted Total Sale
NO. value Value before Value
VAT including
VAT
1. MGPL/01D/14-15 22.09.2014 0519006935 10,75,467 7,68,191 22,71,195
0519007570 19,52,793 13,94,852
2. MGPL/02D/14-15 13.03.2015 0519021598 5,89,136 3,36,649 6,88,127
0519021597 5,57,743 3,18,710
3. HH/01D/16-17 04.09.2016 0519057541 5,32,945 2,53,783 2,66,472
4. HH/02D/16-17 14.09.2016 0519056619 5,81,900 2,77,095 2,90,950
5. HH/03D/16-17 26.12.2016 0519062708 4,45,020 2,11,914 2,22,510
2.3 It is claimed that plaintiff objected and asked the defendants
to either issue invoices as per agreed terms or settle the account of plaintiff. Vide email dated 18.05.2015 , plaintiff informed the defendants that they had failed o deliver the relevant documents on time thereby blocking the funds of plaintiff making it incur heavy business losses due and requested that the account be settled. Then, in July/August 2016 and November/December 2016, defendants provided certain more documents to the plaintiff to enable it to apply for more licences. Thus, for all the documents provided by the defendants until December 2016 to the plaintiff towards procurement of said licence, the cumulative adjusted value of all such licences, in the hands of defendants amounted to Rs. 32,93,608/- . Hence, the balance outstanding out of Rs. 50,00,000/- advanced to the defendants by the plaintiff as on November/December 2016 was Rs. 17,06,392/- .
2.4 It is averred that defendants company failed to either re-issue the said invoice as per agreed terms or come forward to settle the account Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 4 of the plaintiff. Aggrieved with settlement, plaintiff wrote email dated 28.12.2016 requesting the defendants to settle the account and refund monies which were blocked by the defendants. It is pleaded that thereafter defendants raised other invoices no. HH/01D/16-17 dated 04.09.2016; HH/02D/16-17 dated 14.09.2016 and HH/03D/16-17 26.12.2016 having same number and date with different invoice value with intent to defraud the plaintiff and extract further amount from plaintiff. It is stated that the last three invoices were re-raised and issued to the plaintiff , defendants had already filed DVAT returns based on the earlier invoices, although these earlier disputed invoices, only for the purposes of DVAT return, had already been accepted by the plaintiff in its DVAT return. On 02.02.2018, plaintiff issued legal notice to defendants and its directors. 2.5 The case of plaintiff is that the balance amount payable after issuance of last faulty bill as on December 2016 is Rs. 17,06,392/- . In addition, the margin money for blocking funds since the issuance of last date of bill i.e. from December 2016 till 15.09.2019 i.e. 32 months amounts to Rs. 21,84,182/-. Hence, plaintiff preferred present suit for recovery of Rs. 38,90,574/- pending as on 15.09.2019.
3. The suit is contested by the defendants by filing written statement, denying the claim of the plaintiff. Defendants stated that defendants agreed to sell the various licences to be issued for a total combined value of Rs. 60,00,000/- @85% licence value but it was specifically denied that Delhi VAT was included as applicable on the date of issue of bill for such licences by defendants to the plaintiff. Defendants submitted hat invoice no. HH/01D/16-17 dated 04.09.2016 for the licence no. 0519057541; invoice no. HH/02D/16-17 dated 14.09.2016 for the licence no. 0519056619; invoice no. HH/03D/16-17 dated 26.12.2016 for Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 5 the licence no. 0519062708 were never raised by the defendants because it has not bear the correct amount according to defendants VAT return. It is stated that the aforementioned invoices were raised for Rs. 4,53,003.60; Rs. 4,94,615/- and Rs. 4,00,518.30/- respectively but in the said forged invoice the amount of sale shown for Rs. 2,66,472; Rs. 2,90,950 and Rs. 2,25,510/- respectively.
4. On 11.09.2020, this Court referred the matter for settlement but no settlement could be arrived between the parties. On 06.04.2021, case management hearing held and from the pleadings of the parties, following issues arise for consideration:
1. Whether plaintiff is entitled to recovery of Rs. 38,90,574/-
inclusive of compensation from the defendants towards compensation? OPP
2. Whether plaintiff is further entitled to margin money @ 4% per month pendent-lite and future from the defendants? OPP
3. Whether the invoices dated 04th September 2016; 14th September 2016 and 26th December 2016 purported to have been issued by the defendants were not issued by the defendants? OPD
4. Relief.
5. This Court has heard submissions advanced by Sh. Manu Seth Ld. Counsel appearing for plaintiff and Sh. Manoj Kumar Verma Ld. Counsel appearing for defendants and perused the material on record.
6. To prove its case, on behalf of plaintiff, PW-1 Sh. S. S. Gupta was examined whereas on behalf of defendants, DW-1 Sh. Amit Kumar Gupta was examined. Sh. S. S. Gupta PW-1 tendered his affidavit Ex. PW1/A. He placed on record Memorandum of Understanding dated 15.04.2014 executed between the plaintiff and defendants Ex.P-1; Invoice Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 6 dated 28.05.2014 Ex.P-2; Invoice dated 22.09.2014 Ex.P-3; Invoice dated 13.03.2015 Ex.P-4; The follow-up e-mails dated 23.05.2015, 30.11.2016 and 28.12.2016 alongwith 65-B certificate Ex.P-5 ; Invoice dated 04.09.2016 Ex.P-6; Invoice dated 14.09.2016 Ex.P-7; Invoice dated 26.12.2016 bearing HH/03D/2016-17 Ex.P-8; Invoices HH/01D/2016-17, HH/02D/2016-17 and HH/03D/2016-17 Ex.P-9, Ex.P-10 and P-11 respectively; Notice sent under the Insolvency and Bankruptcy Code, 2016 and its response alongwith calculations Ex.P-12; Calculation sheet for the amount pending till 15.09.2019 in terms of MoU Ex.P-13. 6.1 Sh. Amit Kumar Gupta DW-1 tendered his affidavit Ex. DW1/A. He placed on record Board Resolution dated 28.02.2020 executed in his favour by Sh. Prabhat Kumar Ex. DW-1/1; Special Power of Attorney dated 20.02.2020 executed in my favour Ex. DW1/2; Copy of Partnership Deed and consequent retirement deed Ex.DW1/3; Certificate of incorporation of Matrix Gobal Private Limited Ex. DW1/4; Invoice no. HH/01D/16-17 dated 04.09.2016 for the licence no. 0519057541 issued on behalf of defendants to plaintiff Ex. DW1/5; Invoice no. HH/02D/16-17 dated 14.09.2016 for the licence no. 0519056619 issued on behalf of defendants to plaintiff Ex. DW1/6; Invoice no. HH/03D/16-17 dated 26.12.2016 for the licence no. 0519062708 issued issued on behalf of defendants to plaintiff Ex. DW1/7; two computer generated copies of VAT return of defendants both dated 24.09.2017 Ex. DW1/8A and Ex. DW1/8B respectively; Certified copy of statement of account w.e.f 01.04.2014 to 05.07.2018 Ex. DW1/9A and Ex. DW1/9B and certified copy of account table Ex. DW1/10.
Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 7
7. Issue-wise findings of this Court are as under:-
Issue no. 3
8. Whether the invoices dated 04th September 2016; 14th September 2016 and 26th December 2016 purported to have been issued by the defendants were not issued by the defendants and are forged? The onus to prove this issue was on the defendants. This issue is taken first. 8.1 Sh. Manoj Kumar Ld. Counsel for defendants submitted that the defendants have discharge their onus of proof on issue No.3, which was burdened upon to defendants , because plaintiff failed to file his DVAT return on record, and contrary to that the defendants filed its DVAT return and sent the same to plaintiff, although the acceptance of the invoice exhibit Ex. P-9 to 11 was admitted for the sake of DVAT return filing by the plaintiff. It is submitted further that the defendants filed Form 2B of its DVAT return, which was filed by it, but the plaintiff failed to filed Form 2A filed as its DVAT return on record, although suggestion qua the same was given to him.
8.2 As per the case of plaintiff, defendants raised invoices no. HH/01D/16-17, HH/02D/16-17 and HH/03D/16-17 Ex. P-9 to Ex. P-11 having same number and date with different invoice value with intent to defraud and cheat the plaintiff and extract further amount from plaintiff. Invoice dated 04.09.2016 Ex. P-6; invoice dated 14.09.2016 Ex.P-7 and invoice dated 26.12.2016 bearing HD/03D/2016-2017 Ex. P-8 were re- raised and issued to the plaintiff and defendants had filed DVAT returns based on the earlier invoices, although these earlier disputed invoices, only for the purposes of DVAT return, had already been accepted by the plaintiff in its DVAT return.
Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 8 8.3 In the written statement filed by the defendants, it is submitted that DVAT of both sides matched that is why no penalty was imposed to either party which could have been imposed upon concerned authority and in case, invoices were mismatched or there was mismatch of amount, defendants filed Board Resolution dated 28.02.2020 Ex. DW1/1 and Special Power of Attorney dated 20.02.2020 Ex. DW1/2. Plaintiff has not filed any DVAT return. On behalf of of defendants, it was pointed out that plaintiff in his evidence affidavit has not uttered anything in this regard. This fact has not been disputed by Ld. Counsel for plaintiff during arguments.
8.4 According to Para 17 of the plaint defendant fraudulently and illegally raised inaccurate invoices on to the plaintiff, shows that plaintiff was aware that defendants raised these invoices. As per Para 28, the plaintiff was aware that the invoices exhibited as Ex. P-9,10, 11 was raised, which was correspondingly exhibited by defendant as Ex. DW 1/5, 1/6 & 1/7. Admittedly, till the filing of the suit plaintiff had not initiated any legal action against defendants' story put forth by the plaintiff about the raising of false invoice is not convincing . As per Para 29 of plaint the plaintiff admitted that the invoice exhibited as Ex. P-9, 10 & 11 was accepted by plaintiff for filing of DVAT return, but he has failed to file its own DVAT return on record, which shows that defendants has correctly raised the invoice exhibited as Ex. P-9 to P-11.
8.5 In cross examination, PW-1 admitted that he had replied back to the defendants mail dated 16.05.2015 vide e-mail dated 18.05.2015 objecting to their calculation sheet in respect of plaintiff's transactions with defendants. PW-1 had sent his calculation sheet to the defendants in response to their calculation sheet vide e-mail dated 23.05.2015. PW-1 did Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 9 not remember whether the defendants have rejected his calculation sheet which he had sent vide e-mail dated 23.05.2015. PW-1 admitted that no written agreement was executed between the plaintiff and defendants with respect to 4% per month compensation to the remaining Focus Marketing Licence Value.
8.6 PW-1 denied that the invoice for less than the rate specified in MoU and mutually agreed that for the period of delay the rate of raising of invoice would be reduced in proportion to the delay. PW-1 denied the suggestion that he had not placed on record the DVAT return in respect of invoices Ex.P-6 to Ex.P-8 as the same were never been filed by the plaintiff. PW-1 admitted that defendants filed DVAT return in respect of Ex.P-9 to Ex.P-11 and same were informed to him. Admittedly, plaintiff has filed emails dated 23.05.2015; 30.11.2016; 28.12.2016 alongwith Certificate u/s 65-B Indian Evidence Act but admittedly, there is no reference therein regarding these alleged forged invoices during the period 04.12.2015 to 28.12.2016. In the result, this Court finds that defendants have discharged its onus.
8.7 This Court finds merit in the submissions of the counsel for defendants that if the invoices were forged or raised illegally then plaintiff would have raised its objection then & there only, and rejected them immediately, but plaintiff kept its mum for quite some time till the realization of licenses sold to him and then, after about two years sent notice to defendant on 30.06.2018 in order to claim 4% compensation. In the defendant's evidence, plaintiff has given suggestion that the invoices P- 6, 7 & 8 were raised without any discussion with the plaintiff Company and the amount was billed arbitrarily, which also shows that plaintiff was aware about these invoices, but is aggrieved only about the amount mentioned Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 10 therein. Plaintiff has admitted that he received mutually agreed discount by the defendants on the invoices barring these invoices, but contrary to that his acceptance of invoices i.e. P-9 to P-11 signifies that he accepted the aforesaid invoices. Pre-ponderance of probabilities are in favour of defendants. In the result, this Court finds that invoices dated 04.09.2016; 14.09.2016 and 26.12.2016 were not issued by the defendants, therefore, issue no. 3 is decided accordingly in favour of defendants and against the plaintiff.
Issue no. 1 & Issue no. 2
9. Whether plaintiff is entitled to recovery of Rs. 38,90,574/- inclusive of compensation from the defendants towards compensation and whether plaintiff is further entitled to margin money @ 4% per month pendent-lite and future from the defendants? The onus to prove these two issue was on the plaintiff. These issues are taken up together being interconnected.
9.1 Sh. Manu Seth Ld. Counsel appearing for plaintiff submitted that plaintiff is seeking an amount of Rs. 38,90,574/- for compensation from the defendants towards non-performance of agreement in terms of MOU dated 15.04.2014 Ex. P-1. In terms of the said MOU, the defendants agreed to sell to the plaintiff various Focus Market License for a total combined value of Rs. 60,00,000/- @ 85% of the license value inclusive of Delhi VAT as applicable. Admittedly, a total amount of Rs. 50,00,000/- was paid by the plaintiff in advance to the defendants companies in the month of April 2014 for performing the said MOU.
9.2 As per Clause 4 of the said MOU, the defendants had to provide all the documents pertaining to license viz. original EP copy, shopping bills, E-BRCs(80% value), landing certificate etc. immediately Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 11 as required for filing of application for issue of focus market license to be given by 15.05.2014. In terms of Clause 7, if the Defendants were unable to provide the documents by 15.05.2014 then the plaintiff would be compensated as "mutually agreed" for the blockage of funds due to delay in receipt of required documents. Case of plaintiff is that this compensation as per business practice was 4%. Plaintiff had agreed on a mutually agreeable rate of 3.33% as evident from the invoices dated 22.09.2014 and 13.03.2015 being Ex. P-3 and Ex. P-4. There is no dispute as regards invoice dated 28.05.2014 being Ex. P-2 being raised within the time frame as a delay of 13 days was mutually condoned and the same was raised @85% of the value of the license.
9.3 Plaintiff's case is that plaintiff sought settlement of accounts and refund of capital blocked with the defendants vide e-mails Ex. P-5 dated 18.05.2015 and sought to justify for charging 4% margin money as amount to be reduced from the license value per month should there be delay on the part of defendants but according to the plaintiff there was no proper response from the defendants and no settlement of the accounts took place. Ld. Counsel for plaintiff submitted that the defendants ignored the pleas of the Plaintiff and re-issued invoices dated 04.09.2016, 14.09.2016 and 26.12.2016 exhibited as Ex. P-9, Ex. P-10 and Ex. P-11 without any justification, and without mentioning the actual value of license or description in invoice, which to the surprise of the plaintiff, the defendants claimed as forged and fabricated invoices as not issued by it. 9.4 It is submitted that since, the defendants flouted the terms of MOU, plaintiff disputed all the invoices except Ex. P-2 and accordingly sought back his capital blocked computing the calculation of respective license value @85% inclusive of VAT and further reducing the same by Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 12 4% every month for the delay beyond the period prescribed in the MOU as per calculation sheet Ex. P-13. Ld. Counsel for plaintiff submitted that the plaintiff issued a legal notice to the defendants on 30.06.2018 under Insolvency and Bankruptcy Code, 2016 in response to which the defendants though admitting delay on his part and liability towards the plaintiff unilaterally changed the terms of engagement and attached a fudged calculation sheet in contravention to the terms of MOU Ex. P-12. 9.5 The defendants stated that it was due to circumstances beyond their control and an oral agreement was arrived between the parties and a concession to that effect was given which they could not substantiate and its plea is an afterthought. Ld. Counsel for plaintiff submitted that the defendants in its cross-examination on 24.12.2021 stated that Ex. P-6, P-7 and P-8 are forged and false invoices which is in contravention to the Sec. 73 of the Evidence Act, 1872.
9.6 Ld. Counsel for plaintiff submitted that no police complaint was filed by defendants in respect of Ex. P-6, P-7 and P-8 which are alleged to be forged. Defendants on being asked about the basis of concession on Ex. P-3 and P-4 stated that there was no basis of deducing the value as the same was done mutually, and further admitting that concession was not granted in respect of all the invoices. It is submitted that the defendants on being asked about the basis of deducing the value of Ex. P-11/Ex. DW-1/7 @ 90% of the value of license stated that the same was done on the basis of discussion amongst the partners to which he was not a party and in cross-examination, he stated that though the same was valued @90% but it was subsequently corrected and shown @85% in their calculation sheet. Ld. Counsel for plaintiff submitted that admittedly no amended invoice was issued for the value of 85% in respect of Ex. P-11 Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 13 and the same is in contravention to the MOU wherein license was to valued @85% of its original amount and further to be reduced on account of delay beyond 15.05.2014, as mutually agreed. Defendants further admitted that no concession was granted in respect of licenses for the invoice Ex. DW1/5 or Ex. P-9 and DW1/6 or Ex. P-10. AR of the defendants stated that MOU nowhere states that concession would be granted on each and every invoice and adding that concession was indeed granted as against all the invoices. It is submitted that it is in contravention to the Para 5 of the written statement under preliminary objections wherein it is stated that compensation was given under all the invoices raised on behalf of the defendants. It is submitted that the AR of the defendants in his deposition on 24.12.2021 on being asked if he was aware of the communication that happened between the parties in respect of valuation of various invoices did not reply affirmatively, but stated that he prepared those invoices on the basis of directions received from Directors of D-1 and partners of defendant No.2.
9.7 Ld. Counsel for plaintiff submitted that the AR of the defendants on being further asked about the basis of computation of license invoiced Ex. P-4 replied to be not aware of it and did not brought VAT documents which the plaintiff sought for which further proved the claim of the plaintiff. Ld. Counsel for plaintiff submitted that the plea taken the defendants is bogus and afterthought and not sustainable as the same was not taken in response to the legal notice issued by the plaintiff Ex. P-12 and AR of the defendants was not competent to depose in respect of their own documents (invoices) and was not a party to the discussions. 9.8 It is submitted that the plea taken by the defendants that license amount in excess viz. Rs. 57,17,463.80/- was given to the plaintiff Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 14 as against the amount received viz. Rs.50,00,000/- would hold no water as the license value admittedly was agreed to have been issued to the plaintiff for the value of Rs.60,00,000/- (Rupees Sixty Lakhs). The documents in respect of such license were not provided well in time in terms of MOU and the defendants were not able to provide the justification behind the calculation for such invoice apart from stating that the parties in question had orally agreed to it. It is submitted that even if such plea is taken on the face of it, the competent party viz. the Directors of D-1 and partners of D-2 should have been competent to depose and prove the same. 9.9 Ld. Counsel for plaintiff submitted that in the last para of notice the learned lawyer had accepted that a sum of Rs. 91,127.00/- is payable by respondent to plaintiff. Figures had been worked out by creating false and fictitious documents and to mislead this court. It is submitted that money has not yet been paid. Ld. Counsel for plaintiff submits that interest at the rate of 12% is calculated and defendants knows the difference between interest and compensation. In the MOU respondent no where used the word 'interest' rather they have used the word 'compensation'. In case, interest was to be charged for the delay, they would have stated the word 'interest' along with rate of interest to be charged and not 'compensation'. Since the respondent was well aware the word compensation was used and not interest.
9.10 Ld. Counsel for plaintiff has drew attention to the tax invoice placed at sl. no. 44 for the delay of about 3 month where the respondent gave compensation of 10% and tax invoice placed at S.no. 45 for the delay compensation of 25% was given. It is submitted that right from the day of signing of MOU compensation at 4% was well known and accepted by the respondent. As regards rate of compensation @4% per month not Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 15 mentioned in the MOU attention is drawn to Tax invoice No.MGPL/01D/14-15 dated 22.0.9.2014 wherein the respondent has given compensation of 10% due to delay of 3 months approx. It is submitted that since it is the first invoice on which compensation has been paid for delay may please be considered as evidence for compensation @4%. 9.11 Ld. Counsel further drew attention towards statement annexed to the reply under heading "BALANCE RECEIVABLE AMOUNT". Both licence mentioned therein has been raised at 85% annexed at s.no. 55 and
56. The bills have been issued on 4 th and 14th Sept. 2016 almost after 2 years and 5 months from the date of MOU stating that it is the real invoice issued by them and not forged. It is submitted that these bills are fabricated bills as rate charged is @ 85% which is the rate mentioned in the MoU and for delay no compensation was provided, which proves that the bills are forged and fabricated to mislead the court.
9.12 Ld. Counsel for plaintiff submitted that for a delay of 3 month compensation was granted at 10% and for delay of 7-8 months compensation of 25% was given. so how come they will provide 0% compensation for a delay of 2 years and 4 months whereas the fact is that they issued the original invoice by giving 35% compensation for the delay at their own will. It is submitted that both invoices are fabricated is proved from the fact that invoices enclosed do not show basis of issue and no description etc., whereas the invoices originally issued and delivered to us show the basis of its issue and follow the same pattern for issue of invoice which were issued earlier. It is submitted that the adverse financial impact of raising these three fraudulent bills comes to Rs.5,68,205/- on their outstanding amount.
9.13 Ld. Counsel for plaintiff submitted that defendants had issued Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 16 the original invoices with compensation and all the three invoices submitted and contested by them as original are false and forged invoices. Ld. Counsel for plaintiff submitted that the invoice was issued after a delay of more than 2 years 6 months approx. Instead of giving compensation for the delay they have charged the premium of 5%. It is submitted that defendants issued them the invoice placed at s.no.48 with proper description and with a compensation of 35%.
9.14 Ld. Counsel for plaintiff has prayed to allow the compensation on the outstanding amount @ 4% per month by rejecting the invoices submitted by defendants and accepting the invoices submitted by them .
10. Sh. Manoj Kumar Ld. Counsel appearing for defendants submitted that the defendants provided the documents necessary for procurement of said licenses i.e. Original EP Copy, Shipping Bills, E BRC, Landing Certificates, B/L, TEC, RCMC etc., hereinafter referred to as Documents or as required for filing of application for issue of such licenses for about approximately 80% of the combined value of such licenses immediately to the plaintiff i.e. at the time of entering contract and it was mutually agreed that the documents for the remaining 20% of the combined value of licenses latest by 15.05.2014 to the plaintiff, which was delayed due to circumstances beyond control, as documents has to send back from buyer country, and being exporter the Plaintiff Company is also aware that such circumstances used to be beyond control in case of export, hence for such delay, an oral agreement was arrived between them and concession was also given by the defendants on the license value. 10.1 It is submitted that the plaintiff has annexed account table Ex. P-13, according to column No.-5 & 6, where the license value and MOU value is mentioned, if we do addition at the end of it, then the license value Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 17 is amounting to Rs.67,26,374/- and MOU Value is amounting to Rs. 57,17,463/-, although the plaintiff has escape to mentioned the invoice amount reason best known to him. The plaintiff has failed to file any certified statement of account which is established procedure for instituting any mercantile suit for recovery. It is pertinent to mention that invoice value was Rs.51,50,169/- and the defendants has already given concession of Rs.7,17,463/- due to delay in obtaining Focus Market license and providing documents for the same, against the receipt of total payment of Rs.50,00,000/- by the plaintiff, which is shown in correct certified copy of account in tabular form showing difference between the invoice value and actual sale value is marked as Ex. DW 1/10. The aforesaid table is as under :
Matrix Global Pvt Ltd and Hightech Healthcare S. Licence Licence Sale Date Sale value Invoice Value No. No. Value @85% issue to including Ambika tax as per Tubes after MOU dated adjustment of 15.04.2014 Interest
1. 0519006935 1,075,467.00 08.09.2014 914,146.95 806,600.55
2. 0519007570 1,952,793.00 12.09.2014 1,659,874.05 1,464,594.60
3. 051902159 589,136.00 03.03.2015 500,765.60 353,481.45 8
4. 0519021597 557,743.00 03.03.2015 474,081.55 334,645.50
5. 510387368 991,424.00 28.05.2014 842,710.40 842,710.00
6. 0519057541 532,945.00 04.09.2016 453,003.25 453,003.60
7. 0519056619 581,900.00 14.09.2016 494,615.00 494,615.00
8. 051906270 445,020.00 26.12.2016 378,267.00 400,518.30 Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 18 5,000,000.00 Received Amount from Ambika Tubes 5,717,463.80 As per MOU rate @ 85% the licence value 717,463.80 Already issued the excess licence amount 10.2 It is submitted that the plaintiff has disputed the invoice exhibited as Ex. P-9, 10, 11 on the ground that it was raised fraudulently and illegally with same number and date but of different (higher) invoice value with intent to defraud and cheat plaintiff and extract further amount from plaintiff using dubious, fraudulent and illegal means, i.e. invoice exhibited as Ex. DW 1/5, 1/6, 1/7 (by defendant). The plaintiff claimed that the aforesaid disputed invoices was accepted by the plaintiff in its DVAT return, which shows that the invoice as exhibited P-9 to 11 were accepted by the plaintiff and they have filed the DVAT return according to it, and not according to invoice exhibited as Ex. P-6, 7, & 8, which shows that the plaintiff, by not using invoice exhibited as Ex. P-6 to 8, is guilty of committing fraud with the defendants and also because the plaintiff has not placed his DVAT return , although the defendants has placed his DVAT return (Ex. DW 1/8A & 1/8B) in respect of invoice exhibited as Ex. P-9 to
11. 10.3 Ld. Counsel for defendants submitted that it was agreed to extend time period mutually but it was not fixed till 15.05.2014 only. It is also submitted that if plaintiff has any objection in taking document beyond the MOU period, then why not it has refused to accept the paper for focus market license, which was handed over beyond the agreed time period and why not it has terminated agreement and demand remaining amount at that time. Plaintiff waived its right to demand such a huge compensation from defendants. If the adherence of time limit was an Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 19 essence of contract/MOU, then every invoice was raised after 15.05.2014, and which had never been objected.
10.4 It is submitted that that it was never agreed between the parties to impose interest @4% monthly compound interest and also imposed margin money, which is mentioned in Para 24 & 30 of the Plaint.
It's a jugglery of account. It is pertinent to mention that the plaintiff has not produce the document which can show that when they have applied with Director General, Foreign Trade for grant of concession for export in focus market countries based upon documents given by the defendants, because the defendants has handed over 80% of license value documents to the plaintiff since the inception of agreement, but invoices were raised subsequently.
10.5 It is submitted that the alleged invoice No.-MGPL/01D/14-15 dated 22.09.2014 (Ex. P-3) were raised by defendants for the License No.- 0519006935 and 0519007570 for the license value of Rs.30,28,260/- and invoice value was Rs.22,71,195/-, but if it is being calculated at the rate of 85%, which is MOU value, then it became Rs.25,74,021/-. Hence it is apparent that the enough concession was given to plaintiff. It is submitted that that the invoice dated 13.03.2015 (Ex. P-4) were raised by defendants for the License No.- 0519001598 and 0519021597 for the license value of Rs.11,46,879/- and invoice value was Rs.6,88,126/-, but if it is being calculated at the rate of 85%, which is MOU value, then it became Rs.9,74,847.15/-. It is submitted that the alleged invoice No.-HH/01D/16- 17 dated 04.09.2016 for the License No.- 0519057541, invoice No.- HH/02D/16-17 dated 14.09.2016 for the License No.- 0519056619, invoice No.-HH/03D/16-17 dated 26.12.2016 for the License No.- 0519062708 attached with plaint, i.e. Ex. P- 6, 7 & 8 were never been Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 20 raised by defendants, because it was raised for Rs.4,53,003.60/-, Rs.4,94,615.00/- and Rs.4,00,518.30/- respectively, but in said forged invoice the amount of sale has shown for Rs.2,66,472/-, Rs.2,90,950/- & Rs.2,25,510/- respectively. It is pertinent to mention here that the defendants has never raised false invoices and filed its VAT return according to invoices raised as mention in certified copy of statement of account. The copy of Vat return of defendants is annexed & exhibited Ex. DW 1/8A & 1/8B. The Copy of correct invoices raised by defendants is Ex. DW 1/5, 1/6 & 1/7 (Ex. P-9, 10, & 11). The certified copy of statement of account is also filed by defendant exhibited as Ex. DW 1/9A & 1/9B respectively.
10.6 It is submitted that in the light of previous fact that the defendants has already given concession for Rs.7,17,463/- and raised invoice below the MOU amount, hence there is no amount of Rs.17,06,392/- is due and payable by the defendants and further no amount of Rs.21,84,182/- after addition of blocking of fund for 32 months and total amount due till 15.09.2019 is Rs.38,90,574/- is due and payable by the defendants. It is submitted that by mentioning prevailing practice, the plaintiff has waived its right to adhere the time schedule prescribed in MOU (Ex. P-2), and its signifies that the plaintiff accepted the delay in raising invoices, because the same was not rejected immediately and plaintiff never demanded his money from the defendants instantly, but wait for substantial period of two years to put a demand after getting discount in import against the purchased FML from defendants. The plaintiff lost its right of raise objection against either of the invoices and is estopped from raising through the present suit.
Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 21 10.7 Ld. Counsel for defendants argued that the board resolution is produced but not exhibited, hence the witness, who appeared on behalf plaintiff has no evidentiary value and his deposition is liable to be rejected. The plaintiff has not placed on record the certificate of incorporation in spite of claiming that it is a company. In para 5 of evidence by way of affidavit of plaintiff i.e. Ex. PW1/A, claim of extension of one month period i.e. 15.05.2014 to 15.06.2014 is mentioned, accordingly the plaintiff has waived its right of claiming delay in supplying licenses. In para 6 of evidence affidavit of plaintiff i.e. Ex. PW1/A, the two comparative terms was used by plaintiff, i.e. "mutually", which is mentioned in agreement, and "Orally", which is firstly mentioned in suit. The plaintiff claimed that the rate of compensation in terms, in the light of prevailing commercial practice was orally agreed that compensation amount would be 4% per month. It is not made clear by the plaintiff, upon which prevailing commercial practices, he is claiming the 4% monthly compensation. In para 10 of evidence affidavit of plaintiff i.e. Ex. PW1/A, the email dated 18.05.2015 was not exhibited, but in all emails he has rejected his own calculation, but very cleverly not filed his own calculation which was sent to the defendants through said emails at that time also. In the said trail emails, the defendants never accepted the demands of plaintiff.
10.8 Sh. Verma Ld. Counsel for defendants argued that in para 11 of evidence affidavit of plaintiff i.e. Ex. PW1/A, it is accepted and signifies that he was issuing invoices although arbitrarily and whimsically, but it was accepted by plaintiff, and if it was not acceptable to the defendants, then it should have been rejected immediately without availing the benefit under it, but after accepting those invoices and FML licenses under it, the plaintiff should estopped from raising the issue of delay in supply of documents as Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 22 well as in licenses. It is submitted that affidavit of plaintiff i.e. Ex. PW1/A mentioned that the notice was sent on 30.06.2018, although in para 31 of plaint it is mentioned that the notice was sent on 02.02.2018. It is pertinent to mention that plaintiff although send notice under insolvency and bankruptcy code, but a case under the said code was not instituted, fearing that it might be turned against plaintiff.
11. On a thought consideration of submissions advanced at bar and on appreciation of evidence on record, this Court finds that plaintiff has not been able to establish its version. At the outset, the relevant clauses of MOU may be noted to appreciate the dispute. As per clause 5 of MOU dated 15.04.2014 defendants agreed to sell to the plaintiff various Focus Market Licence (FML) for a total combined value of Rs. 60,00,000/- approximately @ 85% of the license value inclusive of Delhi VAT as applicable on the date of issue. Parties further agreed that seller I.e defendants on receipt of FML from the office of DGFT will hand over the licences in original immediately alongwith all documents enclosed therewith no Buyer (i.e. plaintiff) including Transfer letter, DVAT , Tax invoice etc., to enable buyer to get the licence registration with customs and sell the licence to the customer as the buyer may deem fit. 11.1 As per Clause 6, the seller will make the DVAT, Tax invoice in the name of buyer @85% including DVAT as applicable on the date of issue of bill. As per Clause 7, in case the seller is not able to provide the documents viz., All E-BRC's latest by 15.05.2014, then the seller will compensate the buyer as mutually agreed for the blockage of funds due to delay in receipt of required documents. As per Clause 8, the value of the licence registered by customs will be the final value for the purpose of Tax Invoice and payment. As per Clause 9 of MOU, in case of any dispute Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 23 between the parties shall be settled amicably as mutually agreed.
11.2 As per para 9 of the plaint, the prevailing practice, another one month i.e. till 15.06.2014 was considered as period which would allow the plaintiff to procure such licences by applying before the authorities. It was agreed that failure to provide the documents latest by 15.05.2014 would entail compensation to the plaintiff for the blockage of funds due to delay in receipt of required documents which as evident from the conduct of the defendants, market practice and terms of agreement was 4% of the licence value per month.
11.3 In terms of MOU dated 15.04.2014, plaintiff agreed to pay to the defendants a sum of Rs. 45,00,000/- as advance towards the purchase of such licneces being 90% of the combined value of such licences. On 15.04.2014 in accordance with the terms of the Agreement, the plaintiff made a payment of Rs. 37,00,000/- to D-1 and Rs. 8,00,000/- to D-2 being approximately 90% of the combined purchase value of said licences. Having gained the trust of the plaintiff and planning to cheat plaintiff, defendants with malafide intentions again approached the plaintiff and sought an additional amount of Rs. 5,00,000/- .
11.4 As per the terms of the agreement, defendants had to supply all the relevant documents to the plaintiff latest by 15.05.2014. The defendants provided documents to the plaintiff for a licence value of only Rs. 9,91,424/- and raised an invoice no. HH/03/14-15 dated 28.05.2014 showing sale of FPS licnece no. 051038763 for Rs. 8,42,710/- including DVAT of 5% . Documents were provided by the defendants in August/September 2014 to the plaintiff against which licence no. 0519006935 and 0519007570 issued to the defendants , which after Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 24 adjusting for 85% rate as per MOU and additional compensation of three months delay @ 4% per month for blockage of funds, had adjusted value in hands of the plaintiff of only Rs. 22,10,630/- and defendants issued invoice for Rs. 22,71,195/- . Admittedly, defendants provided documents to the plaintiff alongwith licence value of Rs. 9,91,424/- within agreed period and raised invoice dated 28.05.2014 Ex. P-2 showing the sale of invoice value of Rs. 8,42,710/-
11.5 Case of plaintiff is that defendants failed to comply with the terms of agreement i.e. failed to provide documents in time as agreed. As per para 9 of the plaint, plaintiff had considered one month time to allow plaintiff/applicant to procure such licences by applying before the authorities. As per the case of plaintiff, it was agreed that failure to provide the documents latest by 15.05.2014 would entail compensation to the plaintiff and as per the conduct of defendants, market practice and terms of agreement was 4% of the licence value per month. plaintiff has claimed additional compensation @4% per month for blockage of funds. 11.6 Perusal of invoice dated 22.09.2014 Ex. P-3 shows at sl. no. 1 the licence value is Rs. 10,75,467/- ; at sl. no. the licence value is Rs. 19,52,793/- and the total sale price with VAT comes as Rs. 22,71,195 which when it is read with certified copy of account table Ex. DW1/10 , at sl. no. 1 shows sale value @85% including tax as per MOU dated 15.04.2014 was Rs. 9,14,146.95/-. It is found that no percentage was fixed but compensation was given having regard to delay of four months in lieu of blocking of funds etc. Admittedly, in the MOU dated 15.04.2014, there is no agreement regarding payment of compensation @ 4% per month of the total licence value. There is nothing on record to show that parties had agreed @4% per quarter or per month for the delay in issuance of licence Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 25 and blocking of funds.
11.7 PW-1 deposed that he raised an email dated 18.05.2015 rejecting their calculations and pleaded for settlement of accounts since they had failed to deliver their promise as per MOU. The follow u emails were raised in trail vide email dated 23.05.2015 , 30.11.2016 and 28.12.2016 . PW-1 further deposed that despite acknowledging his emails and subsequent correspondences and meetings his company and he had with the defendants, they had paid no heed to follow the agreement as per MOU and reiterated with their acts of issuing invoices as against the various licences arbitrarily and whimsically.
11.8 PW-1 in his cross-examination dated 07.12.2021 admitted that the amount mentioned in Ex.P-3 is more than the delayed period amount. He stated that in his view, when under and MoU everything is mutually to be agreed for the deviation and if not agreed upon in totally, then all the mutually agreed things stand cancelled if plaintiff is forced to proceed for legal proceedings. On being asked, that had he objected through any e- mail or letter in the year 2014, PW-1 deposed that as per MoU the rate of agreement was 85% . He further stated that for the delay, presumed rate worked out to 72% or 73% but they mutually agreed for raising the invoice @75% and there is no question of raising objection.
11.9 On being asked that the defendants raised invoices Ex.P-4, ExP-6, Ex.P-7 and Ex.P-8 above the mutually agreed discounted price rate for that PW-1 raised any objection to sent any e-mail to the defendants or not at that time, PW-1 deposed that as per MoU the rate of agreement was 85%. He further stated that for the delay, let presumed the rate works out to 72% or 73% but we mutually agreed for raising the invoice @75% and Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 26 there is no question of raising objection. On being asked, that the invoices Ex.P-9, Ex.P10 and Ex.P-11 were the revised version of invoices Ex.P-6, Ex.P-7 & Ex.P-8, which were fraudulently raised by the defendants and PW-1 have filed the DVAT for the invoice Ex.P-6, Ex.P-7 & Ex.P-8, PW-1 deposed that Invoices Ex.P-9, Ex.P-10 and Ex.P-11 were never been delivered to them in original till date. He further stated that these three invoices are fraudulent and piece of paper for plaintiff as they have not stated in their invoice for what at what rate for what amount, what type of licence, these invoices have been raised.
11.10 PW-1 deposed that Invoices Ex.P-9, Ex.P-10 and Ex.P-11 were never delivered to them in original till date. These three invoices were fraudulent and piece of paper for plaintiff as they had not stated in their invoice for what at what rate for what amount, what type of licence, these invoices have been raised. PW-1 further deposed that if defendants compares the invoices Ex.P-9, Ex.P-10 and Ex.P-11 with the Ex.P-6, Ex.P-7 and Ex.P-8, those invoices Ex.P-9 to Ex.P-11 was having only licence number and out of these three invoices one of the invoices is raised for more than the agreed rate in MoU.
11.11 In his cross-examination, DW-1deposed that there was no basis for deducting the value of respective invoices at 75% and 60% respectively as the same were done mutually. On being asked concessions was agreed mutually, DW-1 deposed that it happened verbally and there was no written communication to this effect. DW-1 stated that the interest was computed taking into consideration the prevailing bank interest. The invoice Ex. DW1/7 was valued at 90% of the licence value. DW-1 deposed that no concession was granted and it was raised according to terms of MOU Ex. P-1. On being asked that the MOU categorically stated that the Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 27 buyer would be compensated in case there is delay beyond 15.05.2014 but no concession/compensation was given in respect of invoices Ex. DW1/5 and 1/6, DW-1 deposed that it was not mentioned in Ex. P-1 that they would give concession in each and every invoices rather it is stated that they had provided concessions to all the invoices raised by D-1 and D-2. The market practice stated by plaintiff is not established and in terms of agreement/MOU, it does not prescribe imposition of 4% per month compensation against the license value. The Para 13 of plaint seems to be inconsistent to Para 9 of plaint as the plaintiff of its own reduced the period by one month from 15.06.2014 to 15.05.2014.
11.12 Perusal of para 9 to 14 of the plaint shows that the invoice Ex. P-3, bearing number as HH/03/14-15 dated 28.05.2014 was also raised beyond the period of 15.05.2014, then the plaintiff would have reject it, but contrary to that it has accepted the very first invoice, which signifies that the plaintiff has waived its right for delay in raising invoices and estopped. According to Para 18 & 19 of the plaint, the invoice Ex. P- 3 & 4 was also raised fraudulently although plaintiff failed to prove, what fraud committed by defendants while raising the invoices, and if any fraud committed by the defendants, then plaintiff has option to approach police or file criminal complaint, which plaintiff refrained from doing itself. 11.13 In Para 22 & 26 of plaint, the plaintiff mentioned the e-mail dated 18.05.2015 & 28.12.2016, by which he demanded settlement of the accounts. It is pertinent to mention that the email dated 18.05.2015 is not an exhibited document, hence it can't be read in evidence , but going through the two email it is apparent that defendants has sent its calculation to the plaintiff, which was rejected and the plaintiff has raised his own counter calculation, which was never accepted by defendants, hence the argument Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 28 put forth by plaintiff that 4% monthly discount was imposed on license value is not established at all.
11.14 In Para 24 of plaint, calculation does not explain how the value of entire license was calculated to the in tune of Rs.32,93,608/- against the invoice value of Rs. 67,26,374/- and further balance amount was shown & demanded as Rs.17,06,392/- was calculated. The legal notice sent to defendants on 02.02.2018, after considerable period of one & half year after the last invoices raised on 26.12.2016, after availing benefit under the Focus Market License. This court is in agreement with the contention of Ld. Counsel for defendants that after accepting all the license documents and availing benefit thereunder the plaintiff waived its right to raise the issue of delayed supply of license documents and is estopped from demanding the discount against it.
11.15 There is no dispute that the defendants are exporter of goods and The focus market license means that exporter can get custom duty concession in goods import against the export value of goods imported from the focus market countries. There is no dispute that the Focus Market License is transferable according to policy laid down by the Director General of Foreign Trade, Ministry of Commerce, Government of India and these licenses could be sold to any third party importer by the exporter. It is also admitted fact that the plaintiff and the defendants entered into a memorandum of understanding dated 15.04.2014, (Ex. P-1) for the purchase of focus market license, under which the alleged licenses were sold to plaintiff. As per the said MOU dated 15.04.2014 the plaintiff has to purchase the focus market license at the 85% of their export license value. According to said MOU the plaintiff has paid Rs.50,00,000/- to the defendants against Rs.60,00,000/- of the approximate value of said Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 29 licenses. There is no dispute that there is no further mutual agreement between the parties and plaintiff had paid a sum of Rs. 50,00,000/- in total to the defendants. As per calculation sheet, the amount till 15.09.2019 in terms of MOU Ex. P-13 comes to Rs. 67,26,428/- as per plaintiff. There is no dispute about the total licence value of Rs. 57,17,463/- @ 85%. 11.16 PW-1 in his affidavit evidence deposed the rate of compensation in terms of MOU mentioned "mutually" but in the light of prevailing commercial practice it was orally agreed that compensation amount would be 4% per month. There is no dispute that even in the tax invoice dated 22.09.2014 Ex. P-3 in which there was delay of four months or seven days. No 4% concession had been given by the defendants . PW-1 deposed that as per commercial practice , it was around 4% per month and orally agreed but the word compensation/compensating were used and oral agreement for giving compensation @4% per month of licence value was agreed at the time of execution of MOU Ex. P-1.
11.17 Perusal of material on record shows that the defendants used to handover the entire documents as and when received form the office of DGFT, and the plaintiff has not disputed these facts, and the time agreed by the parties in the MOU does not appear to appear to be essence. Since the period agreed was one month but licences were received by the plaintiff even after two years. Therefore, this court is in agreement with contention advanced by Ld. Counsel for defendants that the plaintiff being exporter was aware about the delay in clearing the FML from the office of DGFT which was not under the control of defendants. There is no dispute that discounts which were variable had been given by the defendants against the blocking of fund in earlier raised invoices except the last invoice which is above 85% of license value and it is found that parties Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 30 had mutually agreed as regards the concession due to delay in obtaining Focus Market license, providing documents to the plaintiff. 11.18 The plaintiff has failed to establish about settling its dispute as per mutual agreement for discount for delay @ 4% per month, (which is 48% annually). Certified copy of account table Ex. DW1/10 shows that total invoice value to plaintiff after adjustment of interest is Rs. 51,50,169/- having regard to the compensation/discount given for the delay. Defendants version is that as per the MOU, the value given by the plaintiff was Rs. 57,17,463/- and since plaintiff paid Rs. 50,00,000/- , the compensation of Rs. 7,17,563/- has already been given by the defendants to plaintiff. There appears to be merit in the contention of Ld. Counsel for defendants that since the licence value was Rs. 67,26,428/- and plaintiff had given Rs. 50,00,000/- , so plaintiff earned an amount of Rs. 7,17,463/- by selling those licences and also waiver of import duty earned by the plaintiff.
11.19 In the result, this Court finds that plaintiff has failed to establish its version and has not been able to discharge its onus. Therefore, the issue no. 1 & 2 are decided in favour of defendants and against the plaintiff.
Relief 12.0 In view of findings of aforementioned issues, suit filed by the plaintiff deserves to be dismissed. No order as to costs. File be consigned to record room.
(dictated and announced
in the open Court (VINAY KUMAR KHANNA)
on 30.05.2022) District Judge
(Commercial Court-02)
South Distt., Saket, New Delhi
Ambika Tubes Pvt Ltd. vs Matrix Global Pvt Ltd. & ors. Page no. 31