Delhi District Court
Cs (Comm)No. 268/19 vs Morning Dew on 5 January, 2023
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 SOUTH EAST
DISTRICT SAKET COURTS, NEW DELHI.
CS (comm)No. 268/19
M/s Misa International,
Represented by
Mr. Asim Mehra (Proprietor)
at D294, 1st Floor, Chattarpur Enclave,
Near Corporation Bank,
Opp. MCD Park, 60ft Road,
New Delhi110074
......... Plaintiff
VERSUS
1. Morning Dew
Having Registered office at,
A1 Madanpur Khadar,
New Delhi 110076
2. Vishal Raikwar (Director of Morning Dew)
At A1, Madanpur Khadar,
New Delhi 110076
3. Pankarvin Concare Pvt. Ltd.
Having Registered office at
C9 Rana Pratap Bagh,
G.T. Road, Delhi 110007
4. Pankaj John Gopi
Director of Pankarvin Concare Pvt. Ltd.
Having registered office at
C9, Rana Pratap Bagh,
G.T. Road, Delhi 110007
CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 1 of 18
5 Karun Loveena Gopi
Director of Pankarvin Concare Pvt. Ltd.
Having registered office at
C9, Rana Pratap Bagh,
G.T. Road, Delhi 110007
...... Defendants
Date of Institution : 30.01.2019
Date when final arguments heard : 17.12.2022
Date of Judgment : 05.01.2023
JUDGMENT
1. Brief facts of the case as per the plaint that a plaintiff is a proprietorship firm engaged in the business of production of packaging cover made up of paper, cardboard etc. The defendant No. 1 is a private limited company, engaged in the business of cosmetic products, herbal and its manufacturing, packaging and sale. Defendant No. 2 is the Managing Director of defendant No. 1. Defendant No. 3 is the business associate of defendant No. 1 and defendants No. 4 & 5 are involved in day-to-day functioning of defendant No. 3.
2. In the course of the business, defendants required packaging and the same was supplied by the defendants through invoices with total amount of Rs. 4,71,242/-, out of which Rs. 1,25,000/- was paid in advance but, balance amount of Rs. 3,46,244/- is pending till date. The receipt of material/consignment as per invoice was duly received by defendant No. 3 through its authorised persons. After about six months, finally on 12.06.2017 the defendants No. 4 & 5 on behalf of defendants No. 1, 2 & 3 gave a confirmation letter dated 12.06.2017 whereby admitted and CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 2 of 18 acknowledged that they all jointly and severally owed the amount of Rs. 3.46,244/- to the plaintiff alongwith its interest @ 2%. However, despite repeated requests, defendants have not made any payment. A legal notice dated 21.08.2018 was also sent, but despite receiving the same, defendants neither made any payment nor replied the same, therefore, present suit is filed.
3. The notice of the suit is issued to all the defendants. The defendants No. 3 to 5 did not appear despite service of notice hence proceeded ex- parte vide order dated 09.12.2019. Written statement has been filed on behalf of defendants No. 1 & 2.
4. Defendants No. 1 & 2 in their written statements took the objection that there is no contract between the plaintiff and the answering defendant. It is also averred in the written statement that the plaintiff himself stated that packaging and printing material were received by defendant No. 3 and defendant no. 4 gave undertaking on 12.06.2017 for payment of suit amount. It is also stated in the written statement that the products for manufacturing were decided as per the product and the MRP list conveyed by the defendant No. 4 vide e-mail dated 21.07.2016. It is agreed that designing and packaging of the cosmetic products will be handled by defendants No. 3 & 4 and the answering defendant had no role in the same. The defendant No. 4 informed the answering defendant that the plaintiff was known to him personally, and the order for packaging and designing of the products will be done by the plaintiff. The defendants No. 3 and defendant 4 transferred an amount of Rs. 50,000/- and Rs. 75,000/- in the account of answering defendant, and was instructed to further transfer the same in the account of M/s Misa International. An amount of Rs. 1,25,000/- was transferred to the plaintiff by the answering defendant on CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 3 of 18 behest of defendant No. 4. Thus, the answering defendants have no liability towards the plaintiff. The invoices dated 24.11.2016, 05.12.2016 and 21.12.2016, although drawn in the name of answering defendant, but same has been received, acknowledged and duly signed by defendant No. 4 on behalf of defendant No. 3. The answering defendant has no knowledge of the invoice dated 29.11.2016, which is also acknowledged by defendant No. 4 on behalf of defendant No. 3. The defendant no. 4 himself engaged the plaintiff for designing and packaging. Even otherwise the packaging material printed by the plaintiff was defective. It is also denied that defendant No. 4 & 5 gave any confirmation letter dated 12.06.2017 on behalf of defendants No. 1 & 2. Rather as per plaintiff's own documents i.e. letter dated 12.06.2017, it is evident that the amount of Rs. 3,46,244/- alongwith interest is agreed to be paid to the plaintiff by defendants No. 3, 4, & 5 only. The answering defendant was never aware of the confirmation letter 12.06,2017 till he received the copy of the suit under reply. The answering defendant is the independent proprietorship firm and never gave any authority of defendants No. 3, 4 or 5. The legal notice was not received by the answering defendants.
5. Vide order dated 18.03.2021, following issues were framed:
1. Whether the suit is not maintainable against defendant no. 1 and 2 as alleged in preliminary objection of written statement of defendant no. 1 and 2? OPD
2. Whether the suit is bad for mis-joinder of necessary party? OPD
3. Whether the plaintiff is entitled to the suit amount as claimed for? OPP
4. Whether the plaintiff is entitled for interest, if so, at what CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 4 of 18 rate for what period? OPP.
5. Relief, if any."
6. During evidence, plaintiff examined PW-1 Ashim Mehra, proprietor of plaintiff company as PW-1 and following documents were exhibited:-
1. Copy of the institution document Ex PW1/1
2. Original Invoices Ex PW1/2 (colly) (4 pages) 3. Copy of ledger Ex PW1/3
4. Original confirmation letter Ex Ex PW1/4
5. Certificate u/s 65B of Indian Evidence Ex PW1/5 alongwith CD Act
6. Copy of legal notice Ex PW1/6
7. Original receipt of tracking report Ex PW1/7
8. Copy of bill of legal notice Ex PW1/8
9. Copy of bill of lawyer Ex PW1/9
10. Few packaging product ExPW1/D1
7. During evidence, the defendant examined D1D2W1 Vishal Singh Raikwar, proprietor of Morning Dew and following documents were exhibited:-
1. Copy of email dated 21.07.2016 and the reply Ex D1D2W1/1 dated 22.07.2016 running between pages 1 to 5
2. Email dated 27.05.2016 alongwith attachments Ex D1D2W1/2 running between pages 25 to 39
3. Email dated 24.11.2016 alongwith attachments Ex D1D2W1/3 running between pages 40 to 43 CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 5 of 18
4. Certificate u/s 65B Ex D1D2W1/4
5. Email dated 16.08.2017, 21.08.2017 and Ex D1D2W1/P1 13.09.2017
8. In brief, PW-1 Asim Mehra in cross examination stated that it is correct that the document Ex PW1/4 does not say that the invoices were made in the name of 'Morning' Dew under the instructions of defendant no. 1 and 2. it is also correct that at that time and till the execution of PW1/4, I had never met and communicated with the defendant no. 2. He also stated that it is correct that he have neither seen nor filed the document to the effect that the defendant no. 1 and 2 were the partners of defendant no. 3, 4 and 5. He was told by defendant no. 4 that defendant no. 1 and 2 required the packaging material. The defendant no. 4 did not provide him with any purchase order from the defendant no. 1 and 2. He, however stated that the material as mentioned in the invoice Ex PW1/2 were received in the office of Morning Dew. He stated that he was not present to deliver the aforesaid products. He denied the suggestion that the aforesaid products which are subject mater of PW1/2 were not delivered at the office of Morning Dew. He also stated that he has not filed any transcripts pertaining to Ex PW1/5. He denied suggestion that he did not file the same since the same was blank. He also stated that he never had any contact with defendant no. 1 and 2. He raised the invoices in the name of defendant no. 1 and 2 on the directions of defendant no. 4. He sent a mail to defendant no 1 and 2 after he did not receive balance amount.
However, after seeing the documents, stated that it is correct that he has not filed any record of any mail sent by him to defendant no. 1 and 2. however, voluntarily that he had telephonic conversation with the defendant no. 2.
CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 6 of 18 He also denied suggestion that the notice dt. 21.08.2018 (Ex PW1/6) was neither dispatched nor sent through speed post or registered post to defendant no. 1 and 2. He also stated that material content of the design of packing material Ex PW1/D1 was provided to him by DW-4 Pankaj John for himself and on behalf of defendant no. 1 and 2. He also stated that it is also correct that he did not check or verify to know that defendant no. 4 was acting for himself and on behalf of defendant no. 1 and 2 also. He denied suggestion that he was aware of the fact that defendant no. 1 and 2 have no contract with the defendant no. 3, 4, and 5. He was confronted with documents Ex PW1/D-1 and he stated that it is correct that total quantity of contents circle at point H are equivalent to 300 gms. He was also confronted with the plaintiff wherein the quantity is mentioned at point 1 as 60 gms. He denied suggestion that packaging is defect and misrepresented the quantity of the contents in the box, therefore, defendant no. 3, 4, and 5 had not paid the balance amount.
9. In brief, D1D2W1 Vishal Singh Raikwar in cross examination stated that he do not remember the date and month when D-3 and D-4 transferred some amount in his account and total amount approx. Rs.1.5 lacs. He do not remember exactly that the three emails Ex D1D2/W1/P-1 might have been sent to him by plaintiff on 16.08.2017, 21.08.2017 and 13.09.2017. He did not go through those emails and transferred Rs. 50,000/- and Rs. 75,000/- in the account of plaintiff on the instructions of D-4 as D-4 told him that he is getting some printing job by Asim Mehra. He does not have any document to prove that the above amount was transferred by Pankaj john in his account which transferred in the account of plaintiff, however, can do so if court asked him to do. He stated that Ex PW D1D2W1/2 was sent to him by D-4 through mail. He got access to Ex PW1/D-1 from CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 7 of 18 Pankaj John Gopi. These were provided to them to check and quality and instruction of Art world. The contents printed on Ex PW1/D-1 were not provided by them to plaintiff but by Sh Pankaj John Gopi who was dealing with the plaintiff. He stated that he has no privity of contract with the plaintiff and do not owe any money to plaintiff.
Submission of Counsels
10. Ld. Counsel for plaintiff submitted that defendants in the WS have accepted that D-3, D-4 and D-5 were marketing for them since 2015 and also accepted that D-3 and D-4 informed them that packaging will be handling by plaintiff, therefore, D-3, and D-4 transferred Rs. 1,25,000/- to the plaintiff. D-1 and D-2 did not deny the fact that they got all the products manufactured and delivery by the plaintiff in their possession, and same bore their name and license number too. The printing on all the products are being manufactured by D-1 and D-2 and marketing by D-3 has been accepted by D-1 and D-2. D-1 and D-2 did not lead any evidence as to the fact that how they were in possession of the boxes manufactured and delivered by plaintiff to D-3. D-1 and D-2 are the ultimate beneficiary. D-1 and D-2 brought on record that taking on record the packaging and design approval email correspondence between D-3 and D- 4 without explaining how they were in possession of the email correspondence between them. Ex DW1/3, DW1/4 are self explanatory which proves the knowledge and involvement of D-1 and D-2 as D-3 and D-4 only marketing agents. D-1 and D-2 accepted the advance payment of Rs.1,50,000/- for the work done under the invoices on the oral directions of D-3 and D-4. The invoices are proved to be valid and correct, thus, there is privity of contract between D-1 and D-2 and there is a vicarious liability of D1 and D2 for all and every act and action of D-3, D-4 and D-5. D-1 and CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 8 of 18 D-2 brought the statement of account Ex D1D2/X showing the transfer of Rs. 50006/- and Rs. 75,000/-, however, do not lead any evidence that the said amount transferred by D-3, D-4, and D-5 for making payment to the plaintiff. D-1 and D-2 accepted Ex D1D2W1/P1 i.e. email dt. 16.08.2017 and 21.08.2017 and 13.09.2017, however, denied of going through them. The email dt. 27.07.2017 is about approval of artwork from plaintiff directly to D-1 and D-2 and email dt. 16.08.2017 is the account detail being sent by the plaintiff to D-1 and D-2 and email dt. 13.09.2017 is reminder for the payment for the plaintiff to D-1 and D-2.
11. Ld. Counsel also submitted that D-1 and D-2 did not dispute the invoices nor the fact that only advance was paid. D-1 and D-2 brought on record the products by the plaintiff under the invoices, thus, it is proved that D-1 and D-2 were in factual and physical possession of the products manufactured by the plaintiff. The allegations that the products were defective are false as there is no rejection record and return invoice. They have accepted that they have authorized D-3 to D-5 to packaging and marketing their products, therefore, D-3 to D-5 are acting as an agent. The factum of transfer of advance money by D-1 and D-2 to the plaintiff also shows the ratification of the transaction done by D-3, 4 and D-5 (relied upon Harshad J. Shah & Anr vs. L.I.C. of India & Ors dated 04.04.1997 (SC), Anita Bhandari and Ors vs. Union of India (Uoi) and Ors dated 28.10.2002 (Guj) and Cox (Respondent) vs. Ministry of Justice (Appellant) dated 02.03.2016 (2016) UKSC 10). Ld. Counsel submits that in present facts and circumstances, the plaintiff is entitled for the relief prayed.
12. Ld. Counsel for D-1 and D-2 submitted that present defendants has no liability for payment as the entire dealing is between D-3 to 5 and the plaintiff. The plaintiff in his statement u/s 10 CPC admitted that he had CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 9 of 18 supplied the material under invoices to the D-3 to 5, and there is no other role played by the D-1 except giving the advance amount. Ex PW1/2 (colly) are the invoices raised in the name of plaintiff by defendant no. 1, Ex PW1/3 is ledger account of the plaintiff which are duly received by D-4 under acknowledgement of D-3. The plaintiff in cross examination categorically stated that he met the defendant no. 2 in the court first time after filing the present suit, and the stamp of receiving PW1/2 i.e. invoice are by defendant no. 3. The agreement of contract between the plaintiff and D-2 is Ex PW1/4, the plaintiff in evidence stated that stamp paper for Ex PW1/4 was purchased by him and it bears the stamp of D-3, signed by D-4. He also stated that it is correct that the said document does not say that the invoices were in the name of Morning Dew under the instruction of D-1 and D-2. Plaintiff also stated that till the execution of Ex PW1/4, he had never met and communicated with D-2. PW-4 only stated that D-1 and 2 required packaging material. The Defendant no. 4 did not provide me with any purchase order from the D-1 and 2 required for packaging. Ex PW1/5 is the affidavit u/s 65 B, however, plaintiff in his cross examination stated that he has not filed any transcript, for alleged audio and vedio CD of the affidavit in conversion. The legal notice was sent to D-1 and 2 but there is a settlement with D-3, 4, and 5 Ex PW1/4, however, D-1 and 2 are malafidely dragged in the present suit without any cause of action. Ex PW1/7 is the legal notice, tracking report which was never delivered to D-1 and 2. Ex PW1/8 and Ex PW1/9 are the receipts of professional charges to the tune of Rs. 1,25,000/-, however, in cross examination stated that he do not recall the professional charges paid to the counsel. The plaintiff during his cross examination has been confronted with annexure E which are original packaging boxes with defective printing those the said boxes were CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 10 of 18 denied during admission and denial but admitted in cross examination which were Ex PW1/D-1. PW-1 i.e. plaintiff in his cross examination admitted that he do no check / verified any documents to know the defendant no. 3 was acting for himself or on behalf of D-1 and 2 also, therefore, there is no privity of contract. The only role played by D-1 and D-2 is transferring an amount of Rs.50,000/- and Rs. 75,000/- to the account of plaintiff on the instruction of defendant no. 4 and mere transfer do not make D-1 and D-2 liable towards the plaintiff. Ld. Counsel submits that there is no agreement between D-1 and D-2 and the plaintiff and the defendant no. 2 are not liable for defaults of defendant no. 3 and 5 and hence the suit is liable to be dismissed qua defendant no. 1 and 2.
13. I have heard the Ld. Counsel for the parties and perused the record carefully. On the basis of material available on record, my issuewise findings are as under:
ISSUE No. 1, 2, 3 & 41. Whether the suit is not maintainable against defendant no. 1 and 2 as alleged in preliminary objection of written statement of defendant no. 1 and 2? OPD
2. Whether the suit is bad for mis-joinder of necessary party? OPD
3. Whether the plaintiff is entitled to the suit amount as claimed for? OPP
4. Whether the plaintiff is entitled for interest, if so, at what rate for what period? OPP.
Issue no. 1, 2, 3 and 4 are interconnected and taken up together.
CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 11 of 18
14. The case of the plaintiff that the D-1 and D-2 are the manufacturer and D-3 is the business associate of D-1, and D-4 and D-5 are responsible for day to day functioning of D-3. The defendants for their business required the material for packaging for which four invoices (Ex PW1/2) dt. 24.11.2016, 29.11.2016, 05.12.2016, 21.12.2016 for amount of Rs. 39008, 75000, 325132 and 32104/- were raised and out of which an advance of Rs. 1,25,000/- was made by D-1 and 2, however, thereafter, no amount was paid. Ex PW1/4 is an undertaking / confirmation letter dt. 12.06.2017 of Director Pankaj John Gopi (D-4) of D-3 admitting therein the liability raised through the invoices. The said undertaking is reproduced as under:-
"
To whom so ever this may concerned dated 12 of June 2017 This is to confirm that I Pankaj John Gopi and my wife Karuna Loveena Gopi, Director of Pankarvin Concare Pvt. Ltd. (Incorporated on 17 October 2014) Corporate Identification Number is (CIN) U74900DL2014PTC272555 and its registration number is 272555 and my registered address is C-9 Rana Pratap Bagh Flat No. 2 Subzi Mandi New Delhi DL 110007 have done my entire product packaging from Misa International from April 2016.
We owe Rs. 3,46,244/- plus interest @ 2% per month which is Rs. 51,479/- the total sums up to Rs. 3,97,726 as on date to Misa International. All the invoice was made in the name of Morning Dew (address at A-1, Madan Pur Khadar, Delhi) under my instruction which are duly signed.
We approve all the invoice attached alongwith this letter which has been billed to us thru our other company.
We agree to pay the amount immediately to Misa International (Address at: D 294/1 1 st floor, Chattarpur Enclave, near Corporation Bank, 60ft Road, New Delhi 74) which we have delayed for the past 7 months.
This legal paper is signed by us under no pressure and we are aware of the amount to be paid which has got delayed from our end as we were not able to launch our cosmetic product in the market and could not recovery money.
We assure to pay the entire amount in parts within a week from signing this agreement.
Assuring of our commitment.
For Pankarvin Concare Pvt. Ltd.
Pankaj John Gopi (Director)"
CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 12 of 18
15. According to said undertaking, an amount of Rs. 3,46,244 plus interest @ 2% per month which is Rs. 51,479/- is owed by the d efendant no. 3. It is also written in the said undertaking that they approved all the invoices attached with this letter which has been billed to them through other company. Through, this undertaking, they also agreed to pay the amount immediately to the plaintiff. This undertaking is admittedly signed by D-4 Director of D-3 who are acting as a business associate for engaging plaintiff for packaging work of the D-1 and D-2. D-3, D-4 and D-5 are ex parte.
16. Now the moot question is that whether the D-1 and 2 is liable for acts and liability of D-3, D-4 and D-5.
The main plea to obviate liability by defendant no. 1 and 2 are :-
(i) the statement u/s 10 of the plaintiff in which he stated that he supplied the material of invoices to D-3, 4 and 5, and there was no dealing with D-1 and D-2 except giving the advance payment.
(ii) The invoices Ex PW1/2 were received by D-4 and not by D-1 and D-2 and this fact is corroborated by the cross examination of D-2 who stated that he met with the defendant no. 2 for the first time in the court after filing of the present suit.
(iii) The stamp paper for the undertaking Ex PW1/4 was purchased by the plaintiff and it is stated by plaintiff in cross examination that it is correct that documents Ex PW1/4 does not say that the invoices were prepared in the name of Morning Dew under the instructions of D-1 and D-2, and he do not possess or seen any document to the effect that D-1 and D-2 are the partners of D-3, 4 and 5. Defendant no. 4 did not provide with any purchase order of D-1 and D-2.
CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 13 of 18
17. The defendant no. 2 Vishal Singh Raikwar (PWD1D2) in his affidavit of evidence Ex D1D2W1/A stated that D-1 is the proprietorship firm of D-2 and in the business of manufacturing and sale of cosmetics, and engaged D-4 for marketing of cosmetics products. It was also agreed between both that designing and packaging of the products will be handled by D-4 who stated that plaintiff is known to him and the order for packaging the designing for the order will be done by the plaintiff. Thereafter, certain amount was transferred by the defendant no. 3 and 4 to D-1 and out of which the defendant no. 2 was instructed to transfer the amount of Rs. 50,000/- and Rs. 75,000/- to the plaintiff. This witness in his affidavit of evidence not specified, how much amount he has received from D-3 and D-4 and only mentioned vague word "certain amount", however, in cross examination stated that it might be Rs. 1.5 lacs and further stated that it might be between 2015 and 2017, but in WS it is mentioned that D-4 transferred an amount of Rs. 50,000/- and Rs. 75,000/-.
18. The defendant tries to raise the defence that the amount of Rs. 50,000/- Rs. 75,000/- has nothing to do with regard to the packaging and designing of the work of the plaintiff but transferred merely on the instruction of D-3 and D-4. It is also the plea of the D-1 and D-2 that they have nothing to do with the plaintiff but admitted that their work of packaging and designing were done by the plaintiff but through separate contract with D-3 and D-4, and as such are not liable for the liability of D-3 and D-4.
19. However, making of advance payment of Rs. 50,000/- and Rs, 75,000/- suggests that they are very much involved in the entire dealing otherwise there is no need to make such payment from their account to the account of the plaintiff. The plea that they have received the money from CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 14 of 18 the D-3 and D-4 and on their instructions transferred to the account of plaintiff without anything to with the work done by the plaintiff is not at all credible and cannot be relied upon. The said payment is for their work is also corroborated from the fact that the subsequent demand of payment is also made by the plaintiff from D-2 which is reflected from email dt. 13.09.2017, 21.08.2017 and 16.08.2017 (Ex D1D2W1/P1). D-2 Vishal Singh Raikwar in his cross examination stated that these emails might have been sent but he has not gone through those emails. The sending of mails to D-2 by the plaintiff itself suggest that the plaintiff has done the work of the defendant no. 1 and 2 through D-3, who previously also in this regard made advance payment to plaintiff. This itself suggests that D-1 and D-2 is actively involved in the entire transaction for their work with the plaintiff, though the plaintiff was engaged for their work by D-4. Therefore, in present facts and circumstances, merely on the basis of undertaking Ex PW1/4 by the D-4, D-1 and D-2 cannot be absolved of their liability under the present transaction.
20. Now, it is pertinent to look undertaking / confirmation letter Ex PW1/4 of D-4 and the invoices Ex PW1/2 (colly). These invoices issued by the plaintiff for defendant no. 1 Morning Dew though received by D-4. In the undertaking Ex PW1/4 D-4 categorically stated " we approve all the invoices attached alongwith this letter which has been billed through other company". The other company clearly signifies the Morning Dew (D-1). Merely the fact that D-1 and D-2 not directly involved with the agreement or contract with the plaintiff do not absolve them from the liability particularly when have made advance payment as well as found to have received the entire material prepared through invoices Ex PW1/2. Furthermore, D-1 and D-2 also received emails Ex D1D2W1/P1 CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 15 of 18 demanding payment. Legal notice of demanding payment was also sent which was served through registered post and the tracking report of service also exhibited on record.
21. It is also not the case of the defendant no.1 and 2 that they have made the entire payment under invoices to D-3, 4 and 5 who had not paid to the plaintiff. The D-1 and D-2 is found to be the ultimate beneficiary of the work done by the plaintiff.
22. The making of advance payment and raising of invoices in the name of D-1 and further demand of payment by plaintiff from D-2 suggests that D-1 and D-2 are jointly and severally liable for making the payment to the plaintiff alongwith D-3 to D-5. The statement u/s 10 of the plaintiff merely shows that there is no direct dealing with the D-1 and D-2. This do not mean that D-1 and D-2 are not involved in the dealing, or that D-1 and D- 2 had not consumed the service rendered by plaintiff to D-3 to D-5. D-1 and D-2 found to be working as principle and D-3, 4, and D-5 are the agents of D-1 and D-2 through whom the work was done. The D-1 and D- 2 thus liable for the default committed by their agent D-3, 4 and D-5.
23. The defendant no. 2 in his affidavit of evidence Ex D1D1W1/A categorically stated that due to defective printing and packaging material, the defendant has suffered great monitory loss. However, there is no communication of the relevant time with the plaintiff or even with D-3, D- 4 and D-5 that D-1 and D-2 received defective printing material, thus, mere confrontation of any default / defect in cross examination is of no relevance, therefore, this contention cannot be relied upon. But from this contention of receiving defective product, it is clear that the plaintiff has received the packaging material in terms of invoices raised by the plaintiff. The plaintiff had sent legal notice and service is also proved by the CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 16 of 18 tracking report but there is no reply to the legal notice by the D-1 and D-2 that they have no liability towards the plaintiff. The plea of D-1 and D-2 that they have not read emails Ex D1D2W1/P1 demanding payment also suggest that they are avoiding their liability. The plaintiff able to discharge the onus that D-1 and D-2 are necessary party and also jointly and severally liable to make payment alongwith D-3 to D-5.
24. Now, the question is for how much amount the defendants are liable jointly and severally to the plaintiff. There is nothing in cross examination of PW1 to dispute the total liability of Rs. 4,71,244/ in terms of invoices. The total amount as per invoice claimed by the plaintiff is not found in dispute. The only plea raised by the D1 and D2 is that they are not liable which is negativated. D3 to D5 are proceeded ex parte. The Ex PW1/4 undertaking is signed by D4. The said document found unimpeached during the cross examination of the plaintiff or from the evidence of D2. As per the said undertaking / confirmation letter of balance payment, D4 undertakes to pay balance sum of Rs.3,46,244/ plus interest @ 2% per month which is Rs.51479/ and the total sum is Rs.3,97,726/ as on the date of the undertaking i.e. 12.06.2017. Therefore, the plaintiff is entitled to receive a total sum of Rs.3,97,726/ from the D1 to D5 jointly and severally with interest @ 9% per annum from 12.06.2017 till the filing of the suit, thereafter, pendentelite interest @ 6% p.a and future interest @ 9% per annum till realization. But the claim of interest 18% is not only excessive but also penal, however, reasonable rate of interest is 9% per annum. The defendant not able to discharge the onus of issue no. 1 and 2 and plaintiff able to prove issue no. 3 and 4 in his favour.
CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 17 of 18 Relief:
25. Consequent decision on issues no.1 to 4, it is held that plaintiff is entitled to receive a total sum of Rs.3,97,726/ from the D1 to D5 jointly and severally with interest @ 9% per annum from 12.06.2017 till the filing of the suit, thereafter, pendentelite interest @ 6% p.a and future interest @ 9% per annum till realization. The plaintiff is also entitled to cost.
26. Decree sheet be drawn accordingly and file be consigned to Record Room after due compliance.
Announce in the open court on 5th January, 2023 (Ajay Kumar Jain) District Judge(Commercial Courts 03), SE/Saket Courts/Delhi CS (Comm) 268/19 Misa International Vs. Morning Dew pg. 18 of 18