Delhi District Court
Vision D.I.S vs Mountain Valley Springs India Pvt. Ltd on 13 April, 2022
IN THE COURT OF SHRI SANJEEV KUMAR-II,
ADDITIONAL DISTRICT JUDGE-04,
SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
CS DJ 248/2020
Vision D.I.S.,
Through its Proprietor,
Shri Kapil Pandey,
At : Plot No. 322, Opposite St. Robin School,
Office at IGNOU Road, Neb Sarai,
New Delhi-110068 ....... Plaintiff
Versus
Mountain Valley Springs India Pvt. Ltd.,
Through its CMD, Ms. Mira Kulkarni,
At : N-126, Panchsheel Park,
New Delhi-110017 ....... Defendant
Instituted on : 04.07.2012
Reserved on : 18.02.2022
Pronounced on : 13.04.2022
JUDGMENT
This is a suit for recovery of money, payment of damages and mandatory injunction instituted by the plaintiff against the defendant.
Plaint
2. The brief factual matrix of the case as stated in the plaint is that the plaintiff is a sole proprietorship concern of Kapil Pandey having its CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 1 office at Plot No. 322, Opposite St. Robin School, Off IGNOU Road, Neb Sarai, New Delhi and is engaged in the business of developing cost effective designs and displays for retail communication, signage and meeting display requirements of its clients. Further, the plaintiff firm designs/produces exhibition stalls, signage for shops, malls, and offices, POP units, in-store graphics, activation kiosks, and anything else that falls within the definition of display solutions.
3. The defendant company was incorporated on the 30th day of April, 2003 under the relevant provisions of the Companies Act, 1956 and the registered office of the defendant company is situated at N-126, Panchsheel Park, Delhi. The company is registered under the Registrar of Companies, Delhi [RoC-Delhi]. Presently, the status of the defendant is that of an unlisted private limited company, limited by shares. The registration number of the said company is 120118 and its Company Identification Number (CIN) is U24246DL2003PTC120118.
4. The suit is being presented since the defendant has failed to pay up its outstanding dues for the services and materials supplied by the plaintiff, inspite of having been served with a legal notice dated 04.06.2011 duly acknowledged by the defendant. The defendant for availing the services of the plaintiff for the purposes of its business contacted the plaintiff around November, 2008. Initially, the services of the plaintiff was sought by the defendant for fabrication of a primary sign (shop board) at the defendant company's Greater Kailash, N Block Market, New Delhi store followed by another shop board at its CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 2 Haridwar unit and the defendant was duly paid for both the works. Thereafter, Kapil Pandey of the plaintiff firm was introduced to Samrath Bedi and Vivek Prakash of the defendant company in January, 2009. After Kapil Pandey of the plaintiff firm made a presentation of a 'Retail Identity Package' (which comprised of services and supplies of signage elements, product categorization, labeling, shelf display elements, etc.) for the stores of the defendant to Samrath Bedi, Vivek Prakash, Mira Kulkarni and another board member at the Panchsheel Park, New Delhi residence of Mira Kulkarni (which is also the registered office of the defendant), the plaintiff firm was asked to initiate work on the Project.
5. The defendant commissioned the plaintiff to carry out the retail makeover for the Khan Market store as the pilot project on 17.03.2009. The plaintiff firm received an amount of rupees 25,000/- for the retail make-over of the Khan Market store in May, 2009. On being satisfied with the work of the plaintiff firm the defendant appointed the plaintiff firm as its 'only VM (Visual Merchandising) vendor' vide a mail sent by Vivek Prakash of the defendant company. On 03.06.2009, Alok Sharma who was in charge of the Visual Merchandising department of the defendant company placed an order with the plaintiff firm to replicate what was done at the Khan Market store at six other stores of the defendant company at Atria Worli, Warden Road, Vashi and Juhu (all in Mumbai) and at Greater Kailash, M Block Market and Greater Kailash, N Block Market (both being in New Delhi). The said order was placed on the basis of rates that were agreed upon for the pilot Khan CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 3 Market store. Mr. Kapil Pandey of the plaintiff firm responded to the aforesaid order on 04.06.2009 with a few changes/corrections. Long glow sign board for the N Block G K 1, Delhi store was added, the square footage of the Warden Road, Mumbai primary sign was corrected from 56 (fifty six) square feet to 75 (seventy five) square feet and the design cost was duly apportioned over the 6 stores.
6. The plaintiff firm was only given less than two weeks to complete the Mumbai stores execution, and therefore, three sets of five member teams were employed by the plaintiff to work simultaneously on three consecutive nights. The plaintiff firm's Client Servicing executive, Ganga Sagar Kaushik supervised the execution of all the four stores in Mumbai and the two stores in Delhi. Kapil Pandey of the plaintiff firm visited the four stores in Mumbai for a quality audit while the work was on at the four stores. The said jobs were-completed by the middle of June in Mumbai and by the end of June in Delhi. The plaintiff firm received positive quality feedback from Alok Sharma of the defendant company on the phone upon completion of the aforesaid work. Further, Alok Sharma sent a mail on 13.07.2009 to Kapil Pandey with a Work Sheet attached, with the remark 'Done' against each one of the executed items for all the six aforementioned stores.
7. On 06.05.2009, Mira Kulkarni, CMD of the defendant company had asked the plaintiff to start design work for a graphic to be used in the stores of the defendant company as a backdrop. It was decided that the backdrop would be called the 'Tree of Life'. The plaintiff started CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 4 designing the 'Tree of Life' immediately thereafter. After several alterations and improvements of the artwork the design was finally approved by the defendant company and the plaintiff firm commenced production work on it in June, 2009. Thereafter, Mira Kulkarni insisted on getting the 'right' gold printed, requiring extensive Research and Development on the part of the plaintiff. Several emails in this regard was exchanged between Kapil Pandey and the officials of the defendant company. The plaintiff kept the defendant company informed about the recurring expenses for the aforesaid endeavors; nearly rupees 100,000/- had been spent by the plaintiff firm by July, 2009. A professional photo shoot of the golden painted original art piece was carried out by the plaintiff followed by enhancement of the intensity of gold. The plaintiff intimated Mira Kulkarni that the said photo shoot would cost rupees 27,000/- (Rupees Twenty Seven Thousand only) exclusive of the expenses involved in the digital print output and the same was accepted by her.
8. Thereafter, upon receiving approval of the final design from the defendant company, the plaintiff produced and installed the 'Tree of Life' graphic at the Khan Market store of the defendant company. Later on 20.7.2009 Alok Sharma of the defendant company asked for a high resolution file of the said 'Tree of Life' work on a Compact Disc which was duly delivered by Kapil Pandey to him. After the 'Tree of Life' work was completed, the plaintiff raised a Bill No. RI -121 dated 29.09.2009 in the amount of rupees 1,24,520/- (Rupees One Lakh Twenty Four Thousand and Five Twenty only) inclusive of taxes on the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 5 defendant company, which was never paid. Thereafter, the defendant company remained silent about further production of the said graphics for the other stores. However, much later, behind the back of the plaintiff the defendant company proceeded to install a print of the same 'Tree of Life' designed by the plaintiff in the other stores of the defendant company. This was clearly an infringement of the intellectual property rights of the plaintiff in the 'Tree of Life' design and a breach of their working relationship.
9. The defendant company had also given other small orders to the plaintiff firm simultaneously. They were as follows: (1) 'Jharokha' at G K-I 'N' Block, (2) Saket 'under renovation' cladding, (3) Category headers at Saket, (4) Category headers at Malad, (5) Category headers at the Jaipur store, (6) 'Ingredient and Laxmi walls' at the Juhu store, (7) New graphics at Vashi and Warden Road stores, and (8) Extra signage elements at GK-I 'M' Block. The plaintiff executed the above orders between July and September 2009.
10. For the supplies made and services rendered as aforesaid the plaintiff raised 'Bills'. The defendant did not clear the Bills for some works after taking delivery. Further, even after all the work was completed as per specifications, without any reason, the defendant did not accept some of the supplies. The details of the aforesaid uncleared/unaccepted bills are given hereinbelow chronologically.
(i). The Bill No. TI-147 dated 16.07.2009 in the amount of rupees CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 6 1,05,096/-(Rupees One Lakh Five Thousand and Ninety Six only) inclusive of taxes was raised on the defendant by the plaintiff with regard to the implementation of the display works at the Greater Kailash, M Block store. The rupees 85,145/- (Rupees Eighty Five Thousand One Hundred and Forty Five only) of the said total amount has been cleared by the defendant. But balance amount of rupees 19,951/- against this bill has not been cleared by the defendant.
(ii). The Bill No. TI - 148 dated 16.7.2009 for the amount of 88,763/-
(Rupees Eighty Eight Thousand Seven Hundred and Sixty Three only) inclusive of taxes was raised on the defendant by the plaintiff with regard to display and printing work for the Greater Kailash, N Block store. An amount of rupees 4,323/- remains unpaid against the said bill by the defendant.
(iii). Thereafter, Bill No. TI - 149 dated 16.7.2009 in the amount of rupees 8,438/- (Rupees Eight Thousand Four Hundred and Thirty Eight only) inclusive of taxes was raised on the defendant for the 'jharokha' work carried out by the plaintiff at Greater Kailash, N Block store; however, the defendant has failed to clear this bill in totality.
(iv). The Bill No. TI - 157 dated 24.07.2009 for the amount of 13,104/- (Rupees Thirteen Thousand One Hundred and Four only) inclusive of taxes was raised by the plaintiff pertaining to civil work done at the Greater Kailash, M Block store of the defendant. Out of the said bill amount rupees 504/- remains payable to the plaintiff.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 7
(v). The Bill No. TI - 158 dated 24.07.2009 for the amount of 9,450/- (Rupees Nine Thousand Four Hundred and Fifty only) was raised by the plaintiff pertaining to civil work done at the Greater Kailash, N Block store of the defendant. Out of the said bill an amount rupees 1050/- remains payable to the plaintiff.
(vi). The Bill No. RI - 243 dated 16.09.2009 in the amount of rupees 1,66,393/- (Rupees One Lakh Sixty Six Thousand Three Hundred and Ninety Three only) inclusive of taxes was raised for the display and printing work carried out at the Warden Road, Mumbai store of the defendant by the plaintiff. The defendant has cleared only a part of the said bill i.e. rupees 1,35,050/- (Rupees One Lakh Thirty Five Thousand and Fifty only) for no apparent reason. The balance amount of rupees 30,220/- against this bill has not been cleared by the defendant.
(vii). The Bill No. RI - 244 dated 16.09.2009 was raised for display and printing work done by the plaintiff at the Vashi, Inorbit Mall, Mumbai store of the defendant in the amount of rupees 59,367/- (Rupees Fifty Nine Thousand Three Hundred and Sixty Seven only) inclusive of taxes. However, only rupees 31,600/-(Rupees Thirty One Thousand Six Hundred only) of the said amount was cleared and the balance amount of rupees 26,082/- has not been paid by the defendant.
(viii). The Bill No. RI - 245 dated 16.09.2009 in the amount of rupees 56,850/- (Rupees Fifty Six Thousand Eight Hundred and Fifty only) inclusive of taxes was for the display and printing work at the Atria CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 8 store of the defendant in Mumbai. Despite all the work having been done by the plaintiff, the plaintiff has not been paid under this bill on the pretext that the store closed down.
(ix). The Bill No. RI - 246 dated 16.09.2009 in the amount of rupees 51,111/- (Rupees Fifty One Thousand One Hundred and Eleven only) inclusive of taxes was for supply and installation of Category Headers and Shelf Strips at the Juhu store of the defendant in Mumbai. The defendant has also failed to pay any amount to the plaintiff under the said bill.
(x). The Bill No. RI - 248 dated 16.9.2009 in the amount of rupees 12,118/- (Rupees Twelve Thousand One Hundred and Eighteen only) inclusive of taxes was for implementation of the display and printing work at the Jaipur store of the defendant. The defendant has only paid an amount of rupees 7,500/- against the said bill and an amount of rupees 4,618/- remains unpaid against the said bill.
(xi). The Bill No. RI - 249 dated 16.09.2009 in the amount of rupees 13,566/- (Rupees Thirteen Thousand Five Hundred and Sixty Six only) inclusive of taxes was for the supply and installation of Category Headers at the Malad, Mumbai store of the defendant Company. The defendant has cleared only rupees 9,000/- (Rupees Nine Thousand only) of the said bill and has not cleared the balance amount of rupees 4566/-.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 9
(xii). The Bill No. RI - 250 dated 16.9.2009 in the amount of rupees 97,875/- (Rupees Ninety Seven Thousand Eight Hundred and Seventy Five only) inclusive of taxes was for implementation of 'Ingredient and Laxmi Walls' that were designed and produced 'by the plaintiff firm for the defendant's Juhu, Mumbai store. After Mr. Alok Sharma of the defendant placed the order, the production of the said items was done by the defendant. The plaintiff was informed by the defendant that the said items would not be installed at Juhu and instead they would be sent to the Ahmedabad store. Thereafter, the defendant changed the place from Ahmedabad to Bangalore and finally, it never took the products from the plaintiff and did not clear the said bill.
(xiii). The Bill No. TI - 387 dated 27.09.2009 in the amount of rupees 2,41,840/- (Two Lakhs Forty One Thousand Eight Hundred and Forty only) inclusive of taxes was for the standard elements: two hundred and fifty story cards, two hundred and fifty testers of three inches, three hundred and sixty testers of two inches and brass logos for the cash counters in the stores of the defendant. However, some nine months after keeping these, the defendant decided to return some seventy odd story cards, ninety five two inch testers and sixty four three inch testers. The defendant has not paid any amount of the total bill of rupees 2,41,840/-.
(xiv). The Bill No. TI - 388 dated 27.09.2009 in the amount of rupees 18,586/- (Rupees Eighteen Thousand Five Hundred and Eighty Six only) inclusive of taxes was raised for cladding the Saket store facade CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 10 with 'under renovation' graphic; however, the defendant has only paid rupees 15,750/- (Rupees Fifteen Thousand Seven Thousand and Fifty only) for the said work done by the plaintiff and an amount of rupees 2836/- still remains outstanding against the said bill.
(xv). The Bill No. TI - 389 dated 27.09.2009 in the amount of rupees 11,412/- (Rupees Eleven Thousand Four Hundred and Twelve only) inclusive of taxes was for the supply of Shelf Headers at the defendant's store at Select Citywalk, Saket, New Delhi. The defendant has rejected this bill stating falsely that the said headers were never received.
(xvi). The Bill No. TI - 390 dated 27.09.2009 in the amount of rupees 1,06,016/- (Rupees One Lakh Six Thousand and Sixteen only) inclusive of taxes was issued to the defendant Company for doing extra signage elements at the Greater Kailash, M Block store in Delhi of the defendant so as to increase the visibility of the said store. Pursuant to the approval given by the defendant, the plaintiff produced the said elements. However, out of the said elements the plaintiff took delivery of just the corridor signs and paid for the same. The defendant did not take delivery of the remaining goods neither did they clear the balance bill amount of rupees 78,976/- (Eighty one thousand sixteen only) which is still due and payable from the defendant.
(xvii). The Bill No. TI-443 dated 13.11.2009 in the amount of rupees 16,973/- (Rupees Sixteen Thousand Nine Hundred and Seventy Three only) inclusive of taxes was raised on the defendant by the plaintiff CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 11 with regard to installation of Long Glowsign Board at the Greater Kailash, N Block store. However, the defendant has failed to clear this bill in totality.
(xviii). The Bill Nos. RI -285 and RI - 286 both dated 21.11.2009 were for amounts of rupees 2,948/- (Rupees Two Thousand Nine Hundred and Forty Eight only) and rupees 10,951/- (Ten Thousand Nine Hundred and Fifty One only) inclusive of taxes respectively and were issued by the plaintiff for change in one art work at the Vashi and Warden Road stores of the defendant in Mumbai. After the completion of the above work, the defendant has simply refused to acknowledge these bills.
(xix). Apart from the above bills the plaintiff raised certain Debit Notes (DN) for the expenses incurred in the execution of the above works. That the Debit Note, being DN-35, dated 2.7.2009 in the amount of rupees 10,873/- (Rupees Ten Thousand Eight Hundred and Seventy Three only) was raised by the plaintiff on the defendant for the travel costs, local expenses etc incurred in the Bombay Retail Audit conducted by Kapil Pandey in May 2009. The plaintiff incurred the said expenses pursuant to the assurance of Mr. Vivek Prakash of the defendant for reimbursement of such expenses. However, the defendant has failed to clear the said debit note in totality.
(xx). The Debit Note, being DN-36, dated 02.07.2009 in the amount of rupees 9,129/- (Rupees Nine Thousand One Hundred and Twenty CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 12 Nine only) was raised by the plaintiff on the defendant for the travel and local expenses pertaining to the Ahmedabad Retail Audit and Bombay Quality Audit carried out by Kapil Pandey on 15.06.2009 which had been approved by the defendant. This debit note has also not been cleared by the defendant in totality.
(xxi). The Debit Note, being DN-63, dated 26.09.2009 in the amount of rupees 31,000/- (Rupees Thirty One Thousand only) was for the stay, food and local transportation of the employees of the plaintiff for the work at three stores at Warden Road, Atria and Vashi in Mumbai. Inspite of approving the said debit note, the defendant has failed to make any payments under it also.
11. In the month of August, 2009 the plaintiff started pressing for the long pending payment from the defendant. Mr. Vivek Prakash of the defendant communicated on 26.08.2009 that the due payments should be released in a week's time. Inspite of the aforesaid assurance, the plaintiff was kept in the dark about the status of the said payments for the next six months. After a long time, the defendant finally released a cheque bearing No. 229814 dated 22.04.2010 in the amount of rupees 3,95,740/- (Rupees Three Lakhs Ninety Five Thousand Seven Hundred and Forty only) vide Axis Bank, Khan Market branch. However, this payment was rupees 8,43,599/- short of the total amount outstanding which was due and payable from the defendant to the plaintiff. Thereafter, the plaintiff also sent various e-mails to Ms. Mira Kulkarni, CMD of the defendant through the months of April, May and June, CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 13 2010 for the payment of the dues but they too bore no results. That the defendant has failed to revert to the plaintiff firm since then.
12. Due to considerable delay on the part of the defendant in making the payment, a legal notice was served on the defaulting defendant by the plaintiff through its counsel. The defendant was asked to pay an amount of rupees 7,19,079/- for the various design and implementation works apart from the 'Tree of Life'. The defendant was also asked to pay an amount of rupees 1,24,520/- for the work done for the 'Tree of life'. Hence, the defendant was called upon to pay up a total due amount of rupees 8,43,599/- (Rupees Eight Lakhs Forty Three Thousand Five Hundred and Ninety Nine only) along with interest at the rate of 18% per annum for the entire defaulting period. Inspite of the aforementioned legal notice, the defendant has failed to pay the said amount to the plaintiff. Further, as the defendant behind the back of the plaintiff had proceeded to install a print of the 'Tree of life' design which had been conceived and designed by the plaintiff in the other stores of the defendant there was clearly infringement of the intellectual property rights of the plaintiff in the said design. Hence, it is prayed that the defendant be injuncted from using the 'Tree of life' design in their stores and further the defendant be made liable to pay an amount of rupees 5,00,000/- as damages for the infringement of such copyright.
Written Statement
13. Written statement was filed on behalf of defendant wherein it is stated that the defendant company is not withholding any lawful dues of CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 14 the plaintiff and had made full and final settlement of all the claims, and as per settlement of accounts defendant was to pay full and final settlement amount of rupees 3,95,740/- by way of cheques no. 229814 dated 22.04.2010 which was duly paid and accepted and received by the plaintiff and was duly realized and acknowledged, plaintiff after acting upon the settlement, had filed present suit only to harass the defendant on the basis of forged and fabricated invoices and raising invoices for maternal and services never ordered by the defendant, and billing for damaged and sub-standard supplies.
14. It is denied that Kapil Pandey of the plaintiff firm was introduced to Samrath Bedi and Vivek Prakash of the defendant company in January, 2009. As per the system of the defendant company, work/purchase orders were issued only after mutual fixing of prices and costing with the vendors and only than purchase orders were issued specifying the costing and work to be undertaken within a stipulated period. It is denied that defendant company appointed plaintiff as "only VM (Visual Mechandising) vendor vide a mail sent by Vivek Prakash of the defendant company. The mail, if any, exchanged between the plaintiff and Vivek Prakash in collusion with each other had nothing to do with the defendant company. The copy of e-mail has been doctored to suit the plaintiff and is not genuine as no such appointment was done.
15. It is denied that on 03.06.2009, Alok Sharma who was in charge of the Visual Merchandising department of the defendant company placed an order with the plaintiff firm to replicate what was done at the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 15 Khan Market store, at six other stores of the defendant company at Atra Worli, Warden Road, Vashi and Juhu (all in Mumbai) and at Greater Kailash, M Block Market and Grater Kailash, N Block Market (both at New Delhi). It is denied that on 06.05.2009 Mira Kulkarni, CMD of the defendant company had asked the plaintiff to start design work of a graphic to be used in the stores of the defendant company as a backdrop.
16. It is denied that plaintiff started designing the "Tree of life"
immediately thereafter. It is important to mention here that despite repeated request and reminders plaintiff never forwarded the final print of the graphic in the given time on one or the other pretext. However, it is important to mention here that plaintiff could not even deliver the sample of "Tree of life" on time and never made delivery of the same, as such any purchase order for the said project was not given to plaintiff. The concept of "Tree of life" was the concept of defendant company and has intellectual property rights of it. That plaintiff failed to even give proper graphics despite repeated feedbacks and suggestions, plaintiff was callous and lacks professional approach and did not adhere to the time schedules and hence when defendant found that plaintiff was not capable in proper execution even at the sample stage, no question arises as to issuing any purchase order/work order with respect to "Tree of life" to plaintiff.It is pertinent to mention here that "Tree of life" adopted by the defendant company is altogether different from what plaintiff has filed on record. Copy of the print of "Tree of life" adopted by defendant company is different from all CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 16 aspects.
17. It is denied that plaintiff kept the defendant company informed about the recurring expenses for the aforesaid endeavors. It is denied that nearly rupees 1,00,000/- had been spent by the plaintiff firm by June, 2009. The costing and expanses alleged by the plaintiff were not settled to be born by the defendant and plaintiff never intimated the expanses or took any step for the approval of the same from the defendant company. That defendant could not be held liable for a failure project of the plaintiff. It is denied that professional photo shoot of the golden painted original art piece was carried out by the plaintiff followed by the enhancement of the intensity of gold for the defendant or at its instance. It is important to mention here that plaintiff never delivered any compact disc or hard copy as alleged or completed or installed any graphic at any store of the plaintiff. It is denied that plaintiff raised a bill bearing number R1-121 dated 29.09.2009 for the amount of Rs.1,24,520/- inclusive of taxes on the defendant company. None of the invoice pertaining to "Tree of life" were delivered to the defendant company. The defendant company when fed-up with the repeated demand to furnish the approved final sample was left with no other alternative, but to get the job done from the vendors.
18. It is pertinent to mention here that defendant used to give purchase order/work as per the practice of the company, any work for which purchase order was not issued, is not authorized by the defendant company hence not liable to pay. The defendant company issued CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 17 following purchase orders and except the purchase order mentioned below no other purchase order/work order were issued by defendant to plaintiff firm.
Purchase Order No. Dated Amount 148 20.04.2009 1,86,700/- 185 02.07.2009 85,145/- 188 03.07.2009 84,440/- 192 09.07.2009 21,000/- 212 14.08.2009 1,35,050/- 226 28.08.2009 31,600/- 290 28.08.2009 9,000/- 292 28.08.2009 15,750/- 298 01.09.2009 9,000/-
19. The defendant is not liable to pay the amount of rupees 19,951/- against the Bill No. T1-147 dated 16.07.2009. The defendant company had not approved the invoice value for the given task any point of time. That an amount of rupees 85,145/- was settled for the given task as per the purchase order No.185 dated 02.07.2009. The defendant is also not liable to pay the amount of rupees 4,323/- against the Bill No. T1-148 dated 16.07.2009. An amount of rupees 84,440/- was settled for the given task as per purchase order No. 188 dated 03.07.2009. No purchase order for work of "jhorakha" was issued or carried out by the plaintiff company at GK, N Block, New Delhi. The Bill No. T1-149 dated 16.07.2009 is false and sham, fabricated by the plaintiff to raise false claim and extort money which is not due or payable.
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20. The defendant is not liable to pay the amount of rupees 504/- against Bill No. T1-157 dated 24.07.2009 as plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason. The defendant company had not approved the invoice value for that given task at any point of time. An amount of rupees 12,600/- was settled for the given task and defendant had paid the same, no amount is due or pending pertaining to bill in question.
21. The defendant is not liable to pay the amount of rupees 1,050/- against bill number T1-156 dated 24.07.2009 as plaintiff has exaggerated the invoice value against the purchase order/work issued to the plaintiff initially without any rhyme or reason. That defendant company had not approved the invoice value for the given task at any point of time. An amount of Rs.8,400/- was settled for the given task and defendant had paid the same, no amount is due or pending pertaining to bill in question. The defendant is also not liable to pay the amount of rupees 30,220/- against bill number R1-243 dated 16.09.2009 as plaintiff has exaggerated the invoice value against any rhyme or reason. An amount of rupees 1,35,050/- was settled for the given task as per purchase order No. 212 dated 14.08.2009 and defendant had paid the same, no amount is due or pending pertaining to bill in question.
22. The defendant is not liable to pay the amount of rupees 26,082/- against bill number R1-244 dated 16.09.2009. An amount of rupees 31600/- was settled for the given task as per purchase order No. 226 CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 19 dated 28.08.2009 and defendant had paid the same, no amount is due or pending pertaining to bill in question. Further, no purchase order for work of "Display and printing work at Atria store of the defendant company in Mumbai" was issued or carried out by the plaintiff company, the bill in question is false and sham, fabricated by the plaintiff to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company. Further, no purchase order for work of "the supply and installation of category headers and shelf strips at the Juhu store" was issued or carried out by the plaintiff company, the bill number R1-246 dated 16.09.2009 is false, sham, fabricated by the plaintiff to raise false claim and extort money.
23. The defendant is not liable to pay the amount of rupees 12,118/- against Bill No. R1-248 dated 16.09.2009 as plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason. An amount of rupees 9,000/- was settled for the given task for six units, but only five units were supplied and accordingly payment on pro-rata basis was done and was intimated to plaintiff vide letter dated 22.09.2009 and no amount is due or pending pertaining to bill in question. Further, the defendant is not liable to pay the amount of rupees 4,566/- against Bill No. R1-249 dated 16.09.2009. An amount of rupees 9,000/- was settled for the given task and defendant had paid the same, no amount is due or pending pertaining to bill in question.
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24. No purchase order for work of implementation of "Ingredient and Laxmi Walls" was issued or carried out by the plaintiff company, the bill in question is false, sham, fabricated by the plaintiff, to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company.
25. It is denied that two hundred and fifty story cards, two hundred and fifty testers of three inches, three hundred and sixty testers of two inches and brass logos for the cash counters in the stores of the defendant were supplied. It is denied that after some nine month after keeping the alleged items, defendant company decided to return some seventy odd story cards, ninety five two inches testers and sixty four three inch testers. It is pertinent to mention here that order was placed for 260 Story Card; 200 pieces of Tester 3' & 300 pieces of 2' Tester as per purchase order No.148 dated 20.04.2009. The articles supplied by the plaintiff were of poor quality, not up to the standard, damaged and were in short supply and plaintiff was duly intimated vide letter dated 02.07.2009 and articles were returned to the plaintiff who accepted the return for the reasons above stated. The 175 Tester and 257 Story card were damaged and sub-standard which were returned and plaintiff too it back as per the challan No.2 vide dated pass No.786 dated 21.04.2010. That Bill No. T1-387 dated 27.09.2009 for Rs.2,41,840/- is exaggerated the supply was short, damages, poor quality, sub-standard which has been returned by the defendant company.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 21
26. It is denied that Bill No. T1-388 dated 27.09.2009 in the amount of rupees 18,586/- inclusive of the taxes was raised on the defendant company by the plaintiff firm with regard to the cladding the Saket store facade with 'under renovation' graphic of defendant company. Out of which, rupees 2,836/- against this bill has not been cleared by the defendant. That defendant is not liable to pay the alleged amount as plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason. An amount of rupees 15,750/- was settled for the given task and defendant had paid the same.
27. No purchase order for work of supply of shelf header at the defendant store at Select City Walk, Saket, New Delhi was issued or carried out by the plaintiff company, the bill in question is false, sham, fabricated by the plaintiff, to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company.
28. The defendant is not liable to pay the amount of rupees 78,976/- against Bill No. T1-390 dated 27.09.2009 as plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason. That defendant company had not approved the invoice value for the given task at any point of time. An amount of Rs.27,040/- was settled for the given task and defendant had paid the same, no amount is due or pending pertaining to bill in question.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 22
29. It is denied that Bill No. T1-443 dated 13.11.2009 in the amount of rupes 16,973/- inclusive of taxes were raised on the defendant company for installation of long glow sign board at GK, N Block Market, New Delhi which defendant company has failed to clear this bill in totality. It is important to mention here that no purchase order for work of installation of long glow sign board at GK, N Block Market, New Delhi was issued or carried out by the plaintiff company, the bill in question is false, sham, fabricated by the plaintiff, to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company.
30. It is denied that bill number R1-285 and R1-286 both dated 21.11.2009 in the amount of rupees 2,948/- and rupees 10,951/- respectively inclusive of taxes were raised on the defendant company for change in one artwork at the Vashi and Warden Road Stores of the defendant company, which defendant company has failed to clear this bill in totality. It is important to mention here that no purchase order for work of change of artwork at Vashi and Warden Road Stores of defendant company was issued or carried out by the plaintiff company, the bill in question is false, sham, fabricated by the plaintiff, to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company.
31. It is denied that debit notes were raised by the plaintiff firm on the defendant for travel cost, local expanses etc. Alleged debit notes are not the liability of defendant company. The unilateral addition of CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 23 costing and expanses of the plaintiff does not bind the defendant.
32. In replication, the plaintiff reteirated the averments pleaded in the plaintiff.
Issues
33. The following issues were framed on 27.04.2013:
1. Whether the plaintiff is entitled to recovery of suit amount, as prayed for? OPP
2. Whether the payment of rupees 3,95,740/- made by defendant to the plaintiff was towards full and final settlement of all the claims inter se the parties? OPD
3. Whether the bills/invoices raised by the plaintiff are forged and fabricated and have been raised for material and services never ordered by the defendant? OPD
4. Whether the purchase order and letter filed by the defendant along with WS are fabricated documents? OPP
5. Whether the plaintiff is entitled to grant of mandatory injunction, as prayed for? OPP
6. Whether the defendant has infringed the copyright of CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 24 plaintiff in the 'Tree of Life' design and plaintiff is entitled to damages, as prayed for? OPP
7. Whether the plaintiff is entitled to interest on the suit amount, as prayed for? If so, at what rate and for what period?
OPP
8. Relief.
Evidence
34. In support of its evidence, the plaintiff got examined two witnesses, namely, Kapil Pandey (PW-1) and Ganga Sagar (PW-2). PW-1 tendered his evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint in his affidavit. He has relied upon following documents:
1. Copies of e-mail and attachment is Mark A (collectively)
2. e-mail dated 21.05.2009 with attachments is Mark 'B'.
3. Original of final art work 'Tree of Life Design' is Mark 'C'.
4. Invoice is Ex. PW1/1.
5. The copy of tax invoice is Mark 'D'.
6. The invoice dated 26.06.2009 is Ex.PW1/2.
7. The cash memo dated 18.06.2009 is Ex. PW1/3.
8. The invoice dated 17.06.2009 is Ex. PW1/4.
9. The receipt is Ex. PW1/5.
10. The digital photographs is Mark 'E'.
11. The digital photographs is Mark 'F'.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 25
12. The digital photographs are Mark 'G'.
13. The digital photographs are Mark 'H'.
14. The digital photographs are Mark 'I'.
15. The digital photographs are Mark 'J'.
16. The digital photographs are Mark 'K'.
17. The postal receipt is Ex. PW1/6.
18. The AD Card is Ex. PW1/7.
19. The Certificate under Section 65B(4) of Indian Evidence Act is Ex. PW1/8.
20. Additional Certificate under Section 65 B of the Indian Evidence Act is Ex. PW-1/8A pertaining to document exhibited as Mark A, Mark B, Mark C, Mark E, Mark F (colly.), Mark G (colly.), Mark H (colly.) ,Mark I (colly.), Mark J (colly.), Mark K (colly.).
21. Bill dated 16.07.2009 (TI-147) and bill dated 16.07.2009 (TI-148) are Ex.PW-1/9.
22. Bill dated 16.07.2009 (TI-149) is PW-1/10.
23. Bill dated 24.07.2009 (TI-157) is Ex.PW-1/12.
24. Bill dated 24.07.2009 (TI-158) is Ex.PW-1/13
25. Bill dated 16.09.2009 (RI-243) is Ex.PW-1/14.
26. Bill dated 16.09.2009 (RI-244) is Ex.PW-1/16.
27. Bill dated 16.09.2009 (RI-245) is Ex.PW-1/17.
28. Bill dated 16.09.2009 (RI-246) is Ex.PW-1/19.
29. Bill dated 16.09.2009 (RI-248) is Ex.PW-1/21.
30. E-mail dated 21-26.08.2009 is Ex.PW-1/22 (colly.)
31. Bill dated 16.09.2009 (RI-249) is Ex.PW-1/23.
32. Bill dated 16.09.2009 (RI-250) and e-mails are Ex.PW-1/24 (colly.) CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 26
33. E-mail dated 02.07.2009 is Ex.PW-1/25.
34. Bill dated 27.09.2009 (TI-387) and e-mails are Ex.PW-1/27 (colly.),
35. Bill dated 27.09.2009 (TI-388) is Ex.PW-1/28.
36. Bill dated 27.09.2009 (TI-389) and e-mail are Ex.PW-1/29 (colly.).
37. Bill dated 27.09.2009 (TI-390) is Ex.PW-1/30.
38. Bill dated 13.11.2009 (TI-443) is Ex.PW-1/31.
39. Bill dated 21.11.2009 (RI-285) is Ex.PW-1/32.
40. Bill dated 21.11.2009 (RI-286) is Ex.PW-1/33.
41. Debit note dated 02.07.2009 bearing no. DN-35 is Ex.PW-1/34.
42. Debit note dated 02.07.2009 bearing no. DN-36 is Ex.PW-1/35.
43. Debit note dated 26.09.2009 bearing no. DN-63 is Ex.PW-1/36.
44. E-mails exchanged between July 2009 and June 2010 between the plaintiff and defendant are Ex.PW-1/37 (colly.).
45. Company master details of the defendant company is Ex.PW-1/41.
46. E-mails exchanged between plaintiff and defendant during May- July 2009 are Ex.PW-1/42 (colly.).
47. Legal notice dated 03.06.2011 is Ex.PW-1/43.
35. PW-2 (Ganga Sagar) tendered his evidence by way of affidavit (Ex.PW2/A).
36. In its defence, the defendant got examined one witness, namely, Sanjay Kumar Singh (DW-1) who tendered his evidence by way of affidavit (Ex. DW1/A) and reiterated and reaffirmed the contents of the written statement. He has relied upon the following documents :
1. Certified True Copy of Board Resolution dated 07.12.2012 is Ex.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 27 DW1/1.
2. Computerized Printout of Tree of Life adopted by the defendant which was earlier marked as Mark X-1 during cross-examination of PW-1 on 10.10.2017 is Ex.DW1/2.
3. Letter dated 20.07.2009 is Ex.DW1/3.
4. Office Copy of the Purchase Order issued by the defendant to the plaintiff is Ex.DW1/4 (Colly).
5. Letter dated 02.07.2009 is Ex.DW1/5.
6. Letter dated 22.09.2009 is Ex.DW1/6.
7. Office Copy of Gate Pass bearing No. 768 is Ex.DW1/7.
8. Challan dated 19.04.2010 is Ex.DW1/8.
9. Copy of Cheque dated 22.04.2010 amounting to rupees 3,95,740/- which was earlier marked as Mark X-2 during cross-examination of PW-1 on 10.10.2017 is Ex.DW1/9.
10. Certified Copy of Statement of Account maintained by the defendant for the plaintiff's account is Ex.DW1/10.
11. Office Copy of the Reply dated 12.08.2011 to the Legal Notice is Ex.DW1/11.
12. Certificate dated 01.02.2019 under Section 65B of Indian Evidence Act is Ex.DW1/12.
Plaintff's submission
37. Mr. Arunav Patnaik, learned counsel appearing for the plaintiff submitted that the present suit pertains to the recovery of unpaid money for the work undertaken by the plaintiff and for recovery of damages for injury suffered by the plaintiff for violation of its copyright by the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 28 defendant Company.There was no written contract between the parties. The understanding between the parties on the basis of which work was given and executed by the plaintiff can be seen from the exchange of emails between Kapil Pandey and Ganga Sagar of the plaintiff firm and various officials of the defendant Company and the oral depositions of key witnesses.
38. Mr. Patnaik has further submitted that the present suit pertains to the work undertaken by the plaintiff of an amount of rupees 12.66 lacs (approx.) against which the defendant has only made a payment of rupees 4.22 lacs (approx.) and an amount of rupees 8.43 lacs (approx.) was unjustly and arbitrarily not paid to the plaintiff and the same is still due and pending. The plaintiff is further entitled to receive an amount of rupees 5,00,000/- towards damages for infringement of copy right of the plaintiff's 'Tree of Life' design. The plaintiff is further legally entitled for interest on the above amounts from the date the amounts became due i.e. May, 2010 till the date of payment.
39. Mr. Patnaik has further submitted that the plaintiff has filed over 50 emails that have been exchanged between the plaintiff and the defendant. These emails show a completely different understanding about the work that was done by the plaintiff for the defendant. It is strange that when there are so many emails exchanged between the parties, there is no mention of any "purchase orders" actually ever issued by the defendant in the emails. When seen in the context of the numerous emails exchanged between the parties, the so-called purchase CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 29 orders as well letter filed by the defendant are clearly exposed as being forged and fabricated. The facts that emerge from the emails also show that the plaintiff has never accepted the payment of rupees 3,95,740/- as full and final settlement. The written submission has also been filed on behalf of the plaintiff. He has relied upon the judgments passed in cases of Anvar P. V. v. P. K. Basheer and Others, (2014) 10 SCC 473; Arjun panditraokhotkar v. Kailash Kushanrao Gorantyal and Others, (2020) 7 SCC 1; Microfibres Inc. v. Girdhar & Co. & Ors., (2006) 128 DLT 238; Sasumorov Enterprises Pvt. Ltd. v. Odeon Builders Pvt. Ltd., (2018) SCC OnLine Del 12509 and Abdul Rahman kunji v. The State of West Bengal, (2015) 1 Cal LT 318.
Defendant's Submission
40. Mr. Jatinder Kamra, learned counsel appearing for the defendant has submitted that the plaintff has not filed its statement of accounts or any account book. The plaintff has not filed any complaint against the defendant for said alleged allegations of forged seal etc. on the Purchase Orders by the defendant. The defendant has examined one witness, namely, Sanjay Kumar Singh who has proved the defence.
41. Mr. kamra has further submitted that the defendant company is not withholding any lawful dues of the plaintiff and had made full and final settlement of all the claims, and as per settlement of accounts defendant was to pay full and final settlement amount of rupees 3,95,740/- by way of cheques no. 229814 dated 22.04.2010 which was CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 30 duly paid and accepted and received by the plaintiff. The plaintff had filed present suit only to harass the defendant on the basis of forged and fabricated invoices and raising invoices for maternal and services never ordered by the defendant, and billing for damaged and sub-standard supplies.
Analysis and Conclusions
42. Issue No. 1: Whether the plaintiff is entitled to recovery of suit amount, as prayed for? OPP And Issue No. 2: Whether the payment of rupees 3,95,740/- made by defendant to the plaintiff was towards full and final settlement of all the claims inter se the parties? OPD And Issue No.3: Whether the bills/invoices raised by the plaintiff are forged and fabricated and have been raised for material and services never ordered by the defendant? OPD And Issue No.4: Whether the purchase order and letter filed by the defendant along with WS are fabricated documents? OPP These four issues shall be decided together. Admitted position in respect of employee/director of the defendant company are that Samrath Bedi and Mira Kulkarni are directors of the defendant company; Samrath Bedi had been a director since 2003; Samrath Bedi is the son of Mira Kulkarni; Vivek Prakash was the retail sales manager and Alok CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 31 Sharma was project manager of the defendant company. Alok Sharma had been a director in the defendant company since 2003.
43. It is also admitted between the parties that the email id. [email protected] belonged to Mira Kulkari; email id. [email protected] belonged to Samrath Bedi; e-mail id [email protected] belonged to DW-1 (Sanjay Kumar Singh). DW-1 in his cross-examination stated that he does not know whether [email protected] is e-mail id of Vivek Prakash and [email protected] is e-mail id of Alok Sharma. But he has admitted that the directors of the defendant did not deal with the plaintiff directly. He has also admitted that the defendant owned the domain name forestessentialsindia.com belonged to the defendant and the email addresses of all officials of the defendant company, including Alok Sharma and Vivek Prakash had this domain name. He also admits that email dated 13.05.2009 (Ex.PW1/42) was sent by the director Samrath Bedi, thereby acknowledging that emails were being exchanged between the parties.
44. There are several emails (more than 50) filed by the plaintiff and same have been exhibited during tendering the evidence by way of affidavit of PW1 (Ex.PW1/A). PW2 has also referred several said emails also in his evidence by way of affidavit (Ex.PW2/A). Despite this evidence qua emails in the testimony of PW1 and PW2, nothing have been deposed in respect of these emails in the evidence by way of affidavit of DW1 (Ex.DW1/A). Only mentioning about email is in para CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 32 3 of affidavit of DW1 wherein it is deposed that "the defendant company had not sent any such mail or authorised any person i.e. Vivek Prakash as alleged by plaintff to appoint plaintff as "only VM". That plaintff had doctored any such mail in collusion with Vivek Prakash as no appointment as alleged was done by defendant nor any board resolution was ever passed on this subject by defendant company." Hence, this deniel is only pertaining to email dated 13.05.2009 (Ex.PW1/42) which has been relied upon by the plaintff in respect of its appointment as "only VM". This email as per plaintff was sent by Vivek Prakash of the defendant company to PW1 on his mail ID [email protected] wherein the defendant gave also a brief outline of the work required to be done at its stores. This email was also marked to Samrath Bedi and Alok Sharma, officers of the defendant company. In cross-examination PW1 has stated that in their meeting in the presence of CMD Mrs. Mira Kulkarni, Mr. Samrath Bedi and Mr. Vivek Prakash, it was decided that Mr. Vivek Prakash would represent the defendant company. The defendant has not stated necessary particulars in the written statement as required under Order VI Rule 4 of the CPC about the forged and fabricated emails which it has alleged in respect of email dated 13.05.2009 (Ex.PW1/42). There is no cross- examination of the PW-1 and PW-2 on ground of forgery of emails. The defendant can got examine the Vivek Prakash, Alok Sharma, Samrath Bedi and Mira Kulkarni to prove that the said emails have not been issued by him/her/them. But none of them has been got examined by the defendant. Merely because the defendant in written statement/evidence, without giving any details or particulars which CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 33 could have been given, pleads about email being forged and fabricated, cannot entitle the defendant to discard these emails.
45. In Sasumorov Enterprises (supra), Hon'ble Delhi High Court onserved:
"26. ------E-mail, which is the prevalent mode of correspondence in most of the corporate sector, has to be given the same if not more weightage as the correspondence in physical form. Just like the Court, on mere denial of the defendant of the communication in physical form purporting to emanate from the defendant would not grant leave to defend, without the defendant producing other evidence which in the ordinary course of business ought to have been produced to negate such communication purportedly emanating from the defendant, similarly an email purportedly emanating from the email account of the official of the defendant cannot be disputed by mere denial and cannot entitle the defendant to leave to defend.
27. The defendant has not filed any Certificate under Section 65B of the Evidence Act of its employee Puneet Bansal from whose email account, the email dated 12th September, 2014 purports to emanate. Once the defendant was denying the email, it was incumbent upon the defendant to file Certificate under Section 65B of the Evidence Act with respect to the email account from which the email purported to emanate, to show that the said email did not emanate from that account. Section 88A of the Evidence Act creates a presumption of the veracity of the contents of an electronic message and which has not been rebutted by the defendant in this case.
28. If a mere denial by the defendant in a summary suit, of the written contract as evident from e-mails on which the summary suit is based, were to be held to require grant of leave to defend, the same will negate the advancement in technology and the ease of doing business through electronic communications. Supreme Court in Shafhi Mohammad Vs. State of Himachal Pradesh (2018) 2 SCC 801 has held that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices. It was further held that the threshold admissibility of an electronic evidence cannot be ruled out on any technicality, though reliability of electronic evidence is to be determined in the facts and circumstances of a fact situation.----"
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 34
46. The emails purportedly emanating from the email accounts of the officials of the defendant company cannot be disputed by mere denial. The defendant has not filed any Certificate under Section 65B of the Evidence Act of its employee/director from whose email accounts, the emails purports to emanate. Once the defendant was denying the emails, it was incumbent upon the defendant to file Certificate under Section 65B of the Evidence Act with respect to the email accounts from which the emails purported to emanate, to show that the said emails did not emanate from that accounts. There is no defence of the defendant to suggest that the Internet Protocol (IP) address found on the e-mails were not those of the office bearers of the defendant company, namely Mira Kulkarni, Samrath Bedi, Ved Prakash and Alok Sharma. The defendant has not taken the plea that the e-mails address from which the said emails had been sent are not the email address of the defendant/its director or employee. It has also not taken the plea that the email accounts of the defendant or its derectors/office bearers were hackedSection 88A of the Evidence Act creates a presumption of the veracity of the contents of an electronic message and which has not been rebutted by the defendant in this case.
47. There is no denial of other emails on which the plaintff has relied upon. The emails are electronic records. Any electronic record shall be deemed to be also a document, if the conditions mentioned in Section 65-B are satisfied in relation to the information and computer in question and shall be admissible in any proceddings, without further proof or production of the original. The plaintff has filed certificate CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 35 (Ex.PW1/8) under Section 65 B(4) of the Indian Evidence Act and additional certificate (Ex.PW1/8A) in this regard also. In this regard judgments passed in cases of Anwar P.V. (supra) and Arjun Panditraokhotkar (supra) can be referred.
48. Purchase Orders The defendant has placed on record nine Purchase Orders [Ex.DW1/4(Colly)]. Said Purchase Orders are stated by the plaintff to be forged and fabricated. I am agree with the stand of the plaintiff that said purchase orders cannot be relied upon for the following reasons/glaring facts:
a) The items described in the worksheet attached to Alok Sharma's email dated 03.06.2009 (Ex.PW1/42) do not match with the items mentioned in the Purchase Orders filed by the defendant. Whereas under the attachment of said email, the plaintiff was to carry out work in six stores of the defendant at Atria, Vashi, Warden Road and Juhu stores in Mumbai and G.K. M Block and G.K. N Block markets in Delhi. The Purchase Orders filed by the defendant make no mention of the defendant's stores in Atria and Juhu, both in Mumbai for which the plaintiff had undertaken work clearly as per the instructions of Alok Sharma in said mail dated 03.06.2009.
There are also discrepancies in the items, quantity and costing of the work ordered in emails of Alok Sharma and the alleged Purchase Orders issued by the defendant company. For instance, as per work order issued by Alok Sharma vide email dated 03.06.2009 [item 5 of CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 36 Costing Sheet of FE Store for VM Elements at pg. 48], the plaintiff was required to install brass logos at the each of the 6 stores of the defendant at Atria, Vashi, Warden Road, Juhu, GK-M Block, G.K-N Block. The unit price of each brass logo was rupees 6048/-. The plaintiff had also agreed to install these brass logos at the unit price of rupees 6048/- as reflected in the final cost estimate summary sheet which was sent as an attachment vide email dated 04.06.2009 (Ex.PW1/42). The plaintiff raised Bill No. 387 dated 27.09.2009 which included the brass logo work [Ex. PW 1/27]. It is important to note that the Alok Sharma of the defendant, vide his email dated 13.07.2009 (Ex.PW1/37) has also acknowledged that the plaintiff had installed 6 brass logos in the defendant's stores by making remark of "Done" against the said entry in the attachment to the said email. However, none of the alleged Purchase Orders (Ex. DW 1/4) reflect the item brass logo.
b) While there are innumerable emails (more than 50 emails) exchanged between the parties from the time of the initial understanding as regards the works to be executed, during the course of execution of the works, request for pending payments till the dispute about non-payment of balance dues, there is no mention of any "Purchase Order" whatsoever in any e-mail exchange between the parties.
c) After the work was executed and when assurances were given by the defendant company in email dated 25.08.2009 (Ex.PW1/37) and email CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 37 dated 26.08.2009 (Ex.PW1/37) that the payments will be cleared soon there was no mention of any Purchase Order in those mails either. Even at the time of discussing payment issues in February-June, 2010, long after the works had been executed, when suddenly the defendant company started raising some quality issue so that they could come up with some excuse not to make the full payments, there was no mention of Purchase Orders in the said emails (Ex.PW1/37) either. There is not a single mail of the defendant company which mentions about any Purchase Orders.
d) DW1 (Sanjay Singh), Manager Accounts of the defendant company, who refers to these Purchase Orders in his evidence, did not refer to any Purchase Order in any of his emails exchange of 02.03.2010, 06.03.2010, 10.03.2010, 29.04.2010, 16.05.2010 and 27.06.2020 (Ex. PW1/37) exchanged with the plaintiff firm. It is also important to note that DW1 was not there anywhere in the picture when the work was initiated, initial quotes discussed and works were being executed and payments followed up in the year 2009. The emails were exchanged between Kapil Pandey (PW1) and Ganga Sagar (PW2) of the plaintiff firm and Mira Kulkarni, Samrath Bedi, Alok Sharma and Vivek Prakash of the defendant company and discussions held with them. No email exchange which has been exchanged between the plaintiff and the defendant company at that stage was even marked to DW1. He only came into the picture in March, 2010 at the time of making payments. There is no examination of Mira Kulkarni, Samrath Bedi, Alok Sharma and Vivek Prakash by the defendant to disprove the said emails.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 38
e) When there are emails dated 06.05.2009, 12.05.2009, 13.05.2009, 25.05.2009, 28.05.2009, 31.05.2009, 28.06.2009 and 29.06.2009 (Ex.PW1/42) exchanged between the parties for the execution of the 'Tree of Life' design and also Mark A, B and C, there are no Purchase Orders issued for the 'Tree of Life' design. Even the directors of the defendant company, Samrath Bedi and Mira Kulkarni, are seen discussing with the plaintiff the 'Tree of Life' design. This also goes to show that no Purchase Orders were ever issued before the execution of the 'Tree of Life' design or any work which has been executed by the plaintiff firm.
f) Normally, it is the company issuing the Purchase Orders which puts its seal at the time of issuing the Purchase Order and no firm to whom a Purchase Order is issued puts its seal on the Purchase Order. When asked to DW1 in his cross-examination as to how the seals of the plaintiff firm got stamped on these original Purchase Orders, the explanation given by him is that every time a Purchase Order was prepared an employee of the plaintiff would go with the seal of the plaintiff to have them stamped at the defendant company's office. This explanation itself falsifies the story as it is unnatural conduct to expect that every time a Purchase Order was prepared by the defendant company somebody from the plaintiff firm would carry a seal to the defendant company's office to stamp the Purchase Order. The name of said alleged employee of the plaintff is not mentioned by the defendant company.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 39
g) The defendant company has also filed some Purchase Orders which bear the alleged seal of the plaintiff. It is strange as to how the said original Purchase Orders with the seal of the plaintiff were in possession of the defendant company. It is clearly not understandable as to why the plaintiff firm would leave the original purchase order after stamping it with the defendant company. In his cross-examination DW1 in order to justify the defendant's stand states that it was the practice of the defendant company to issue such Purchase Orders for all work given to vendors and if a vendor raised bills which did not match with the Purchase Orders then the vendors were informed about the same and deductions made from the bills accordingly. However, in the case of the plaintiff DW1 admits that no such communication was ever given to the plaintiff that its invoices do not match with the Purchase Orders. When there are innumerable emails exchanged between the parties not a single email states that the invoices raised by the plaintiff does not match with the Purchase Orders. Rather, no email even makes any mention of any Purchase Order. On the other hand there were emails (Ex.PW1/37) from the defendant company clearly stating that the work has been "DONE" to the satisfaction of the defendant company.
h) The defendant company has also filed a letter dated 02.07.2009 [Ex. DW1/5] wherein it is stated "as per material received as per purchase order 148 dated 20.04.2012". It is interesting that a letter purportedly issued in the year 2009 refers to a future date in the year 2012 i.e. the year in which the written statement is being prepared. The defendant has given clarifications in this regard that due to CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 40 typographical/clerical error in the said letter date of purchase order No. 148 wrongly mentioned as 20.04.2012 instead of 20.04.2009. Despite said clarification, some doubt has been created because in the year 2012 written statement was prepared and filed in the present case by the defendant.
Work Done at Atria, Vashi, Warden Road and Juhu Stores in Mumbai and G. K. M Block and G. K. N Block Markets
49. PW1 (Kapil Pandey) has deposed that Alok Sharma of the defendant Company issued an email dated 03.06.2009 (Ex.PW1/42) with an attachment containing a summary of "Costing Sheet FE Stores for VM elements" for the work to be done at six stores of the defendant at Atria, Vashi, Warden Road and Juhu stores in Mumbai and G.K. M Block and G.K. N Block markets in New Delhi. The initial costing that was given in the said Costing Sheet for the works to be undertaken at these stores totaled to rupees 6,84,917/-. It was specifically mentioned at the bottom of the Costing Sheet that the work to be done in the Malad and Saket stores was not included in the estimates because more work was to be done in those stores as they were to undergo a "major REFIT". Also the costing of "Tree of Life" visual and "Niche design"
was not included. Thus, even when these works were not included, the initial cost estimate given by the defendant company itself amounted to rupees 6,84,917/- for six stores only.
50. PW-1 (Kapil Pandey) deposed that on 03.06.2009, Alok Sharma who was in charge of the Visual Merchandising department of the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 41 defendant company placed an order with the plaintiff firm to replicate what was done at the Khan Market store at six other stores of the defendant company at Atria Worli, Warden Road, Vashi and Juhu (all in Mumbai) and at Greater Kailash M Block Market and Greater Kailash N Block Market (both at New Delhi). He testified further that the said order was placed on the basis of the rates that were agreed upon for the pilot Khan Market store. PW-1 responded to the aforesaid mail by email dated 04.06.2009 (Ex.PW1/42) with a few changes/corrections to the Cost Sheet deposing that he responded to the order placed with few changes/corrections and that long glow sign board for N Block GK- 1 Delhi was added, the square footage of the Warden Road, Mumbai primary sign was corrected from 56 square feet 75 square feet and the design cost was duly apportioned over the six stores. The plaintiff prepared a final cost estimate after making the corrections to the Cost Sheet and sent it as an attachment to said email. The total cost estimate for the 6 stores now worked out to be rupees 8,82,192/-. PW-2 (Ganga Sagar), the Client Service Executive of the plaintiff, has deposed that on 03.06.2009, Alok Sharma, Visual Merchandising in-charge of the defendant, sent a summary of work to be done vide email to the plaintiff at the defendant's stores in Atria, Vashi, Warden Road and Juhu stores in Mumbai and G.K.-M Block and G.K.-N Block markets in New Delhi; that the final cost estimates were prepared by them and were sent by Kapil Pandey (PW-1) as an email attachment on 04.06.2009 to Alok Sharma of the defendant company; that the said work was completed by early July, 2009. The emails dated 03.06.2009 and 04.06.2009 and the summary of "Costing Sheet FE Stores for VM elements" attached CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 42 thereto show that the plaintff and the defendant had finalized the work to be undertaken at said six stores of the defendant and the final quote that was given by the plaintiff for the said work was rupees 8,82,192/-. It is also clear that it did not include the works to be done at the stores in Saket (Delhi), Malad (Mumbai), the 'Tree of Life' work and new 'Niche' design. It is also clear that there was no objection to the final rates quoted by the plaintiff.
51. Alok Sharma of the defendant company sent an email dated 13.07.2009 (Ex.PW1/37) with an attachment indicating the status of works done by the plaintiff in said six stores of the defendant which shows that the defendant company has acknowledged the work done by the plaintiff by giving the remark "Done" in the relevant column of attachment. Thus, it is clear from the said three emails (dated 03.06.2009, 04.06.2009 and 13.07.2009) that it has been categorically acknowledged by the defendant company that the plaintiff executed the works in said six of the defendant's stores satisfactorily. Some photographs of Work Done at Attria and Warden Road are Mark F and Mark G. Tree of Life
52. Though initially Alok Sharma of the defendant company in his mail dated 03.06.2009 (Ex.PW1/42) had kept out the cost estimate for the "Tree of Life" design. The series of emails (Ex. PW 1/42 : emails dated 06.05.2009, 12.05.2009, 13.05.2009, 25.05.2009, 28.05.2009, 31.05.2009, 28.06.2009 and 29.06.2009 and also Mark A, B and C) CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 43 exchanged between the plaintiff and the defendant show that the plaintiff created the design and graphic art work titled "Tree of Life" for the defendant's stores as required by the defendant company. An email dated 06.05.2009 (Ex. PW 1/42) was sent to Kapil Pandey (PW-1) by Vivek Prakash of the defendant company, asking the plaintiff to send the 'Tree of Life Visual' immediately vide email to those copied on the said email. In email dated 12.05.2009, PW-1 sent the "folk vision"
design and text for the 'Tree of Life' to Samrath Bedi, Mira Kulkarni, Alok Sharma and Vivek Prakash of the defendant company. On 13.05.2009, Samrath Bedi, Director of the defendant company replied to the "folk vision" via email dated 13.05.2009 (Ex. PW 1/42) sent by PW-1, expressing that he liked the "folk vision" design and suggested that the background should be made white. The said email was also marked to Mira Kulkarni, Vivek Prakash and Alok Sharma. Again between 25.05.2009 to 31.05.2009, several emails (Ex. PW 1/42 ) were exchanged between the plaintiff and the defendant which clearly establish that the plaintiff had successfully created the 'Tree of Life' artwork. In email dated 25.05.2009, sent by Samrath Bedi, Director of the defendant, to (PW-1), more inputs were given to the work on the 'Tree of Life' design which was being undertaken by the plaintiff. In another email of the same date, PW-1 is seen forwarding the contents of Samrath Bedi's email to the design team of the plaintiff and the text for the 'Tree of Life' is also forwarded by the plaintiff to one of its team member. Email dated 31.05.2009 (Ex. Pw 1/42) and Mark B show that PW-1 sent two options for the 'Tree of Life' artwork created by the plaintiff to Samrath Bedi and Mira Kulkarni. On the same date, an CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 44 email (Ex.PW-1/42) was issued by the defendant (issued from the email of Samrath Bedi and written by Mira Kulkarni) to PW-1 in which the defendant clearly states that it liked one of the options for the 'Tree of Life' created by the plaintiff and specifically asked the plaintiff to make a few changes to the same. This email was also marked to the email id. of Mira Kulkarni. Thereafter, PW-1 sent via email dated 28.06.2009 (Ex. PW 1/42) the revised "Tree of Life" design to both directors of the defendant (Mira Kulkarni and Samrath Bedi). Again, Mira Kulkarni via email dated 29.06.2009 (Ex. PW 1/42) asked the plaintiff to make a small change in the text portion and told the plaintiff that the tree visual and written text should be 2/3rd the poster, the logo should be 1/3rd and the logo should not have any impressions around it. She also asked the plaintiff to redo and revert to her immediately. Vivek Prakash of the defendant company via email dated 15.07.2009 (Ex. PW 1/42) asked the plaintiff to handover the sample of the "Tree of Life" as approved by Mira Kulkarni. Alok Sharma of defendant company via email dated 20.07.2009 (Ex. PW 1/42) asked the plaintiff to hand over a high resolution file of the "Tree of Life" work on a compact disc.
53. PW1 in his cross-examination deposed that email dated 29.06.2009 from Mira Kulkarni to him and CC to Samrath Bedi and email dated 15.07.2009 from Vivek Prakash to him and CC to Alok Sharma showcase the defendant's approval qua "Tree of Life". PW1 about the work undertaken for the defendant company has deposed that upon receiving approval of the final design from the defendant company, the plaintiff produced and installed the 'Tree of Life' graphic at the Khan CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 45 Market store of the defendant company; that on 20.7.2009 Alok Sharma of the defendant company asked a high resolution file of the said 'Tree of Life' work on a compact disc which was duly delivered by him to Alok Sharma. Similarly, PW2 (Ganga Sagar) has also deposed about the 'Tree of Life' that on 20.07.2009, Alok Sharma of the defendant company asked for the high resolution file of the 'Tree of Life' work on a Compact Disc which he got delivered to Alok Sharma. In his cross- examination PW 2 has denied the suggestion that the defendant never gave any order or approval for project "Tree of Life" to the plaintiff. He also deposed that the design being very large, the same could not have been sent by way of attachment and therefore the Compact Disc of the same was sent to the sender of e-mail. It is admitted by PW2 that the plaintff had not placed on record any confirmation letter/acknowledgment letter of the recipient of the said design acknowledging the receipt of design in the Compact Disc. He clarified that the oral acknowledgment/confirmation was given by Alok Sharma to him on phone. He denied the suggestion that he is acting in collusion with Alok Sharma.
54. The emails dated 25.08.2009, 26.08.2009 and 20.09.2009 (Ex PW1/37) were exchanged between the parties as regards the expenses and invoice as regards 'Tree of Life' which show that when the plaintiff communicated the expenses and invoice [Invoice/Bill No. RI-121 (Ex. PW 1/1) and other bills [(Ex.PW1/2 -Ex. PW 1/5) and Mark D] for the 'Tree of Life' design to the defendant, the defendant also assured payment. The plaintiff raised a Bill No. RI-121 (Ex.PW1/1) of rupees CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 46 1,24,520/- on the defendant for the "Tree of Life" design inclusive of taxes and expenses. However, the defendant did not make any payment towards the "Tree of Life" design work and expenses. The defendant's defence is that the sample of 'Tree of Life' was never handed over to it by the plaintiff. The defendant has filed a letter dated 20.07.2009 (Ex.DW1/3) stating that same was issued to the plaintff showing its disappointment and not to provide even sample for approval of "Tree of Life". This defence appears to be false because the said various mails exchanged between the parties show that the plaintiff worked out in great and precise detail the design of "Tree of Life" on the instructions and to the satisfaction of the defendant. It is also seen that even much after 20.07.2009 (date of said letter of defendant) there are mails exchanged between the parties on 25.08.2009, 26.08.2009 and 20.09.2009 [Ex PW1/37] for payment of costs and expenses for the 'Tree of Life' design which has been clearly acknowledged by the defendant company and the defendant company in response has assured payment to the plaintiff. The defendant has not shown any email wherein the defendant has stated about non-installation of the "Tree of Life" by the plaintff. When dealing was through emails then why there is no email issued by the defendant showing non-installation of said "Tree of Life" by the plaintff in its Khan Market store. I think no much reliance can be placed upon the said letter (Ex.DW1/3). PW1 in cross- examination deposed that expenses of rupees 27,000/- towards photo shoot was approved telephonically by the defendant. He stated also that his mail communication with Vivek Prakash on 25.08.2009 showcases the statement of expences incurred for the "Tree of Life" work and in CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 47 his response Vivek Prakash had promised to pay within a week. From the evidence, I am of the view that the plaintff has been succeeded to prove that it produced and installed the 'Tree of Life' graphic at the Khan Market store of the defendant company, and accordingly, is entitled to receive the amount of rupees 1,24,520/-as mentioned in Bill No. RI-121 (Ex.PW1/1) Additional work simultaneously carried out by the plaintiff
55. PW1 has deposed that the defendant company had also given other small orders to the plaintiff firm simultaneously which are: (1) Jharokha at G.K.-1 'N' block, (2) Saket 'under renovation' cladding, (3) Category headers at Saket, (4) Category headers at Malad, (5) Category headers at the Jaipur store, (6) 'Ingredient and Laxmi walls' at the Juhu store, (7) New graphics at Vashi and Warden Road stores, and (8) Extra signage elements at G.K-I 'M' Block. He further deposed that the plaintiff executed the said orders between July and September 2009. PW2 has also corroborated about these extra small orders and raising invoices in July, September and November 2009.
G.K-I 'M' Block Store, New Delhi
56. PW-2 issued an email dated 22.08.2009 (Ex.PW1/22) to Alok Sharma of the defendant in which he attached the quotation for the work to be under taken at M-Block, G.K.-I Market and the Standard elements works. The defendant was asked to give him approval with PO for this work. Alok Sharma of the defendant company issued an email dated 23.08.2009 (Ex. PW1/22) in which he gave his approval by CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 48 saying that the commercials sent by PW-2 looked ok for them and that the plaintiff should treat the said email as a "formal approval for the same". The Bill No. TI-147 dated 16.07.2009 (Ex.PW1/9) in the amount of rupees 1,05,096/-(Rupees One Lakh Five Thousand and Ninety Six only) inclusive of taxes was raised on the defendant by the plaintiff with regard to the implementation of the display works at the Greater Kailash, M Block store. The rupees 85,145/- (Rupees Eighty Five Thousand One Hundred and Forty Five only) of the said total amount has been cleared by the defendant. But balance amount of rupees 19,951/- against this bill has not been cleared by the defendant as per the plaintiff. The stand of the defendant company is that it is not liable to pay the amount of rupees 19,951/- against the said bill because it had not approved the invoice value for the given task any point of time. It is its further stand that an amount of rupees 85,145/- was settled for the given task as per the purchase order No.185 dated 02.07.2009 (Ex.DW1/4).
57. The Bill No. TI -157 dated 24.07.2009 (Ex.PW1/12) for the amount of 13,104/- (Rupees Thirteen Thousand One Hundred and Four only) inclusive of taxes was raised by the plaintiff pertaining to civil work done at the Greater Kailash, M Block store of the defendant. Out of the said bill amount rupees 504/- remains payable as per the plaintiff.
But, as per the defendant it is not liable to pay the amount of rupees 504/- against said bill as the plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason; the defendant company had not approved CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 49 the invoice value for that given task at any point of time; an amount of rupees 12,600/- was settled for the given task and defendant had paid the same. As per the defendant, it issued total nine purchase orders. But the defendant has not referred purchase order number in respect of this transaction.
58. The Bill No. TI - 390 dated 27.09.2009 (Ex.PW1/30) in the amount of rupees 1,06,016/- (Rupees One Lakh Six Thousand and Sixteen only) inclusive of taxes was issued also to the defendant company for doing extra signage elements at the Greater Kailash, M Block store in Delhi of the defendant so as to increase the visibility of the said store. It is further case of the plaintiff that pursuant to the approval given by the defendant, the plaintiff produced the said elements, however, out of the said elements the plaintiff took delivery of just the corridor signs and paid for the same and did not take delivery of the remaining goods neither did they clear the balance bill amount of rupees 78,976/- (Eighty one thousand sixteen only) which is still due and payable from the defendant. The stand of the defendant is that it is not liable to pay the amount of rupees 78,976/- against said bill as the plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason; the defendant company had not approved the invoice value for the given task at any point of time; an amount of rupees 27,040/- was settled for the given task and defendant had paid the same, no amount is due or pending pertaining to bill in question. As per the defendant, it issued total nine purchase orders. But the defendant has not referred purchase CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 50 order number in respect of this transaction.
59. It is important to point out that the defendant's witness (DW-1) admits that the said extra signage work/element had been done, however, he has deposed further that out of rupees 1,06,016/-, rupees 78,976/- has not been cleared as the plaintff has exaggerated the invoice value against the purchase order/work order issued to the plaintff. In this connection, PW-1 has deposed that Bill TI- 390 dated 27.09.2009 in the amount of rupees 1,06,016- was issued to the defendant company for doing extra signage elements at the Greater Kailash, M Block store of the defendant company in Delhi so as to increase the visibility of the said store; that pursuant to the approval given by the defendant company, the plaintiff firm produced the said elements; that out of the total bill amount, rupees 80,000/- is still due and payable from the defendant company. It is important to note that the defendant has not even produced any supposed 'Purchase Order' for the said work rupees 1,06,016/-, even then the defendant has accepted that this work was undertaken by the plaintiff. This also goes to show that the defendant's stand that purchase orders were issued pursuant to which work was commenced appears to be false.
G.K.-I 'N' Block Store, New Delhi
60. The Bill No. TI-148 dated 16.07.2009 (Ex.PW1/9) for the amount of 88,763/- (Rupees Eighty Eight Thousand Seven Hundred and Sixty Three only) inclusive of taxes was raised on the defendant by the plaintiff with regard to display and printing work for the Greater CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 51 Kailash, N Block store. An amount of rupees 4,323/- remains unpaid against the said bill. The defendant has taken stand that it is not liable to pay the amount of rupees 4,323/- against the said bill because an amount of rupees 84,440/- was settled for the given task as per purchase order No. 188 dated 03.07.2009 (Ex.DW1/4).
61. The Bill No. TI-149 dated 16.07.2009 (Ex.PW1/10) in the amount of rupees 8,438/- (Rupees Eight Thousand Four Hundred and Thirty Eight only) inclusive of taxes was raised on the defendant for the 'jharokha' work carried out by the plaintiff at Greater Kailash, N Block store as deposed by PW1, however, the defendant has failed to clear this bill in totality. As per the defendant no purchase order for work of "jharokha" was issued or carried out by the plaintiff at GK, N Block, New Delhi and the said bill is false and sham, fabricated by the plaintiff to raise false claim and extort money which is not due or payable. The photographs of the work "Jharoka" installed in defendant's store at GK- 1 N Block market have been marked as Mark E by the PW1. The photographs of the items pertaining to Bill No. T1-149 is marked as Exhibit PW 1/11. PW-1 has deposed that Bill number TI-149 dated 16.07.2009 in the amount of rupees 8,438/- inclusive of taxes was raised on the defendant Company for the 'jharokha' work carried out by the plaintiff firm at Greater Kailash, N Block store; however, the defendant company has failed to clear this bill in totality.
62. The Bill No. TI -158 dated 24.07.2009 (Ex.PW1/13) for the amount of 9,450/- (Rupees Nine Thousand Four Hundred and Fifty CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 52 only) was raised by the plaintiff pertaining to civil work done at the Greater Kailash, N Block store of the defendant and out of the said bill an amount rupees 1050/- remains payable to the plaintiff as per the stand of the plaintiff. But, as per the defendant, it is not liable to pay the amount of rupees 1,050/- against said bill as the plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason; the defendant company had not approved the invoice value for that given task at any point of time; an amount of rupees 8,400/- was settled for the given task and defendant had paid the same. As per the defendant, it issued total nine purchase orders. But the defendant has not referred purchase order number in respect of this transaction.
63. The Bill No. TI-443 dated 13.11.2009 (Ex.PW1/31) in the amount of rupees 16,973/- (Rupees Sixteen Thousand Nine Hundred and Seventy Three only) inclusive of taxes was raised on the defendant by the plaintiff with regard to installation of Long Glowsign Board at the Greater Kailash, N Block store. PW1 has deposed in respect of raising this bill. The defendant has failed to clear this bill in totality as stated by the plaintiff. The defendant has taken stand that no purchase order for said work was issued or carried out by the plaintiff company and the bill in question is false, sham, fabricated by the plaintiff. There is no cross-examination of PW1 by the defendant on this bill.
Warden Road Store, Mumbai
64. The Bill No. RI - 243 dated 16.09.2009 (Ex.PW1/14) in the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 53 amount of rupees 1,66,393/- (Rupees One Lakh Sixty Six Thousand Three Hundred and Ninety Three only) inclusive of taxes was raised for the display and printing work carried out at the Warden Road, Mumbai store of the defendant by the plaintiff. The defendant has cleared only a part of the said bill i.e. rupees 1,35,050/- (Rupees One Lakh Thirty Five Thousand and Fifty only). The balance amount of rupees 30,220/- against this bill has not been cleared by the defendant. This is deposed by PW1. As per the stand of the defendant, it is not liable to pay the amount of rupees 30,220/- against said bill as plaintiff has exaggerated the invoice value against any rhyme or reason; defendant company had not approved the invoice value for the given task at any point of time; an amount of rupees 1,35,050/- was settled for the given task as per purchase order No. 212 dated 14.08.2009 (Ex.DW1/4) and defendant had paid the same.
65. The Bill No. RI - 286 dated 21.11.2009 (Ex.PW1/33) was for amount of rupees 10,951/- (Ten Thousand Nine Hundred and Fifty One only) inclusive of taxes and was issued by the plaintiff for change in one art work at the Warden Road store of the defendant in Mumbai. After the completion of the above work, the defendant has refused to acknowledge this bill as deposed by PW1. As per the defendant no purchase order for said work was issued or carried out by the plaintiff company and the bill in question is stated to be false, sham, fabricated by the plaintiff. There is no cross-examination of PW1 by the defendant in respect of these bills (Ex.PW1/14 and Ex.PW1/33).
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 54 Vashi Store, Inorbit Mall, Mumbai
66. The Bill No. RI - 244 dated 16.09.2009 (Ex.PW1/16) was raised for display and printing work done by the plaintiff at the Vashi, Inorbit Mall, Mumbai store of the defendant in the amount of rupees 59,367/- (Rupees Fifty Nine Thousand Three Hundred and Sixty Seven only) inclusive of taxes. However, only rupees 31,600/-(Rupees Thirty One Thousand Six Hundred only) of the said amount was cleared and the balance amount of rupees 26,082/- has not been paid by the defendant. The defendant says that it is not liable to pay the amount of rupees 26,082/- against said bill because an amount of rupees 31,600/- was settled for the given task as per purchase order No. 226 dated 28.08.2009 (Ex.DW1/4) and defendant had paid the same.
67. The Bill No. RI -285 dated 21.11.2009 (Ex.PW1/32) was for amount of rupees 2,948/- (Rupees Two Thousand Nine Hundred and Forty Eight only) inclusive of taxes and was issued by the plaintiff for change in one art work at the Vashi store of the defendant in Mumbai but after the completion of the above work, the defendant has simply refused to acknowledge this bill as per PW1. As per the defendant no purchase order for said work was issued or carried out by the plaintiff company. The bill in question is stated by the defendant to be false, sham, fabricated by the plaintiff. There is no cross-examination of PW1 in respect of this Bill No. RI -285.
Atria Store, Mumbai
68. The Bill No. RI - 245 dated 16.09.2009 (Ex.PW1/17) in the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 55 amount of rupees 56,850/- (Rupees Fifty Six Thousand Eight Hundred and Fifty only) inclusive of taxes was for the display and printing work at the Atria store of the defendant in Mumbai. Despite all the work having been done by the plaintiff, the plaintiff has not been paid under this bill on the pretext that the store closed down. The defendant takes stand that no purchase order for said alleged work was issued or carried out by the plaintiff company, and the bill in question is false and sham, fabricated by the plaintiff to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company. But there is no cross-examination of PW1 in respect of this Bill No. RI -245.
Juhu Store, Mumbai
69. The Bill No. RI -246 dated 16.09.2009 (Ex.PW1/19) in the amount of rupees 51,111/- (Rupees Fifty One Thousand One Hundred and Eleven only) inclusive of taxes was for supply and installation of Category Headers and Shelf Strip at the Juhu store of the defendant in Mumbai as PW1. As per his further deposition, the defendant has failed to pay any amount to the plaintiff under the said bill. The stand against said bill taken by the defendant is that no purchase order for said work was issued or carried out by the plaintiff company and the said bill is false, sham, fabricated by the plaintiff to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company. But there is no cross-examination of PW1 in respect of this Bill No. RI -246.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 56
70. As per PW1, the defendant wanted the plaintiff to create "a Niche & Ingredient wall" (Laxmi Ingredient wall) also for its Juhu store. PW1 sent an email dated 30.06.2009 (Ex.PW1/25) intimating the defendant that the total cost for doing the eternal beauty niche and ingredient wall at Juhu would be rupees 1,20,000/- plus VAT. On 02.07.2009, Alok Sharma of the defendant issued an email (Ex.PW-1/25) to PW-1 asking the plaintiff to start the work for the Niche and Ingredient Wall for the defendant's store at Juhu. Alok Sharma stated also that he was still awaiting the detailed costing from the side of the plaintiff although he had reduced the cost from rupees 1,20,000/- to 87,000/-. He also asked to go ahead with the said order and finish the work on 4th night (in two days' time). PW1 has admitted that the word 'Laxmi' is not mentioned in the said email dated 02.07.2009. But he clarified that the photograph of 'Laxmi' exists in the design of the ingredient wall. PW1 deposed that the production of said items was done by the plaintiff. The photographs of the "Laxmi/Ingredient Wall and Niche" is marked as Mark I by PW1. He further deposed that after the production of the said item was done, the defendant said that it would be installed at Ahmedabad instead of Juhu and thereafter, the defendant changed the venue of installation from Ahmedabad to Bangalore, but finally the defendant never took delivery of the said item and did not clear the said bill. In email dated 20.09.2009 (Ex.PW-1/37), sent by the plaintiff to Vivek Prakash and Alok Sharma, the plaintiff pointed out that the "Ingredient-laxmi walls"
had been made ready for dispatch for almost two months but had not been taken by the defendant. PW-1 deposed also that the plaintiff raised a Bill No. RI-250 (Ex.PW-1/24) of rupees 87,000 plus taxes of rupees CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 57 10,875/- thereby totaling to rupees 97,875 for the said work. The stand against said bill taken by the defendant is that no purchase order for said work was issued or carried out by the plaintiff company and the said bill is false, sham, fabricated by the plaintiff to raise false claim and extort money which is not due or payable and the bill was never delivered to the defendant company. The defendant has made cross- examination of PW1 on this bill and work. But in view of the deposition of PW1 and PW2 and the emails (Ex.PW1/25 and Ex.PW1/37) which were exchanged between PW1 and Alok Sharma of the defendant company in respect of this work I am of the view that the plaintff is entitled to the amount raised in the Bill No. No. RI-250 (Ex.PW-1/24) Jaipur Store
71. The Bill No. RI - 248 dated 16.9.2009 (Ex.PW1/21) in the amount of rupees 12,118/- (Rupees Twelve Thousand One Hundred and Eighteen only) inclusive of taxes was for implementation of the display and printing work at the Jaipur store of the defendant. The defendant has only paid an amount of rupees 7,500/- against the said bill and an amount of rupees 4,618/- remains unpaid against the said bill as per the plaintiff. The stand of the defendant is that it is not liable to pay the said amount against said bill as the plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason; the defendant company had not approved the invoice value for the given task at any point of time; an amount of rupees 9,000/- was settled for the given task for six units, but only five units were supplied and accordingly payment on pro-rata basis CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 58 was done and was intimated to plaintiff vide letter dated 22.09.2009 (Ex.DW1/6) and no amount is due or pending pertaining to bill in question. PW1 has denied the suggestion that he had made short supply for display and printing work at Jaipur. The defendant has not shown/prove any email to show that the defendant has raised the issue of short supply with the plaintff. Email is important to prove the stand of the parties because there are more than 50 emails which have been exchanged between the plaintff and the defendant in respect of transactions/works in questions.
Malad Store, Mumbai
72. The Bill No. RI -249 dated 16.09.2009 (Ex.PW1/23) in the amount of rupees 13,566/- (Rupees Thirteen Thousand Five Hundred and Sixty Six only) inclusive of taxes was for the supply and installation of Category Headers at the Malad, Mumbai store of the defendant Company. The defendant has cleared only rupees 9,000/- (Rupees Nine Thousand only) of the said bill and has not cleared the balance amount of rupees 4566/-. The defendant says that it is not liable to pay the amount of rupees 4,566/- against said because an amount of rupees 9,000/- was settled for the given task and defendant had paid the same. As per the defendant, it issued total nine purchase orders. But the defendant has not referred purchase order number in respect of this transaction.
Saket Store, Delhi
73. PW-2 sent the quotation via email dated 21.07.2009 (Ex. PW-
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 59 1/27) for glass window cover for Saket to Alok Sharma as an attachment to the email. On same day, Alok Sharma replied via email (Ex.PW-1/27) the plaintiff to go ahead for printing and get the same up at the defendant's store at Saket the next morning. The digital photos of the said work installed at the defendant's Saket store is Mark K. The Bill No. TI -388 dated 27.09.2009 (Ex.PW1/28) in the amount of rupees 18,586/- (Rupees Eighteen Thousand Five Hundred and Eighty Six only) inclusive of taxes was raised for cladding the Saket store facade with 'under renovation' graphic, however, the defendant has only paid rupees 15,750/- for the said work done by the plaintiff and an amount of rupees 2836/- still remains outstanding against the said bill. The defendant has taken stand that it is not liable to pay the alleged amount as plaintiff has exaggerated the invoice value against the purchase order/work order issued to the plaintiff initially without any rhyme or reason; that it had not approved the invoice value for the given task at any point of time; that an amount of rupees 15,750/- was settled for the given task and defendant had paid the same. As per the defendant, it issued total nine purchase orders. But the defendant has not referred purchase order number in respect of this transaction.
Select Citywalk Store, Saket, New Delhi
74. PW1 deposed that the Bill No. TI - 389 dated 27.9.2009 (Ex.PW1/29) in the amount of rupees 11,412/- (Rupees Eleven Thousand Four Hundred and Twelve only) inclusive of taxes was for the supply of Shelf Headers at the defendant's store at Select Citywalk, Saket, New Delhi but the defendant rejected this bill stating that no CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 60 purchase order for said work was issued or carried out by the plaintiff company. The bill in question is stated by the defendant to be false, sham, fabricated by the plaintiff. But, there is no cross-examination of PW1 on this bill and work.
The Standard Elements: Story Cards, Testers and Brass Logo.
75. PW1 deposed that the Bill No. TI -387 dated 27.9.2009 (Ex.PW1/27) in the amount of rupees 2,41,840/- (Two Lakhs Forty One Thousand Eight Hundred and Forty only) inclusive of taxes was for the standard elements: two hundred and fifty story cards, two hundred and fifty testers of three inches, three hundred and sixty testers of two inches and brass logos for the cash counters in the stores of the defendant was issued upon the defendant, however, some nine months after keeping these, the defendant decided to return some seventy odd story cards, ninety five two inch testers and sixty four three inch testers. The defendant has not paid any amount of the total bill of rupees 2,41,840/-.
76. As per stand of the defendant order was placed for 260 Story Card; 200 pieces of Tester 3" and 300 pieces of 2" Tester as per purchase order No.148 dated 20.04.2009 (Ex.DW1/4). The articles supplied by the plaintiff were stated by the defendant to be of poor quality, not up to the standard, damaged and were in short supply and plaintiff was duly intimated vide letter dated 02.07.2009 (Ex.DW1/5) and articles were returned to the plaintiff who accepted the return. It is further stand of thr defendant that 175 Tester and 257 Story card were CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 61 damaged and sub-standard which were returned and plaintiff too it back as per the challan No.2 vide dated pass No.786 dated 21.04.2010. The said Bill No. T1-387 dated 27.09.2009 is stated by the defendant to be exaggerated. The onus is upon the defendant to prove the articles to be poor quality and damaged and were in short supply. To my mind said onus has not been discharged because the defendant was supposed to prove the articles to be poor quality and damaged and were in short supply but same has not been proved. The letter (Ex.DW1/5) is stated to be forged by the plaintff. When dealings between the parties were happened through exchange of emails then why email has not been sent by the defendant about said alleged poor etc. articles. There is no email referred by the defendant mentioning about said letter. In these circumstances, no reliance can be placed upon the said letter.
Debit Notes
77. Apart from the above bills the plaintiff raised certain Debit Notes (DN) for the expenses incurred in the execution of the above works. The Debit Note, being DN-35, dated 02.07.2009 (Ex.PW1/34) in the amount of rupees 10,873/- (Rupees Ten Thousand Eight Hundred and Seventy Three only) was raised by the plaintiff on the defendant for the travel costs, local expenses etc. incurred in the Bombay Retail Audit conducted by PW1 (Kapil Pandey) in May 2009. PW1 states that the said expenses were incurred pursuant to the assurance of Vivek Prakash of the defendant company for reimbursement of such expenses. The Debit Note, being DN-36, dated 2.7.2009 (Ex.PW1/35) in the amount of rupees 9,129/- (Rupees Nine Thousand One Hundred and Twenty CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 62 Nine only) was raised by the plaintiff on the defendant for the travel and local expenses pertaining to the Ahmedabad Retail Audit and Bombay Quality Audit carried out by PW1 on 15.06.2009. The Debit Note, being DN-63, dated 26.09.2009 (Ex.PW1/36) in the amount of rupees 31,000/- (Rupees Thirty One Thousand only) was for the stay, food and local transportation of the employees of the plaintiff for the work at three stores at Warden Road, Atria and Vashi in Mumbai. As per the plaintiff, inspite of approving the said debit notes, the defendant has failed to make any payments under these debit notes.
78. The defendant's stand is that debit notes are not the liability of defendant company and the unilateral addition of costing and expanses of the plaintiff does not bind it.
79. PW-1 has deposed that apart from the above bills the plaintiff raised certain Debit Notes (DN) for the expenses incurred for the execution of the above works. He deposed also that the plaintiff firm incurred the said expenses pursuant to the assurance of Vivek Prakash of the defendant company for reimbursement of such expenses but the defendant company has failed to clear the said debit note in totality. PW-2, has corroborated the testimony of PW-1 in respect of Debit Notes. Hence, there is categorically deposition of PW-1 and PW-2 qua the several expenses incurred while executing the orders for the defendant which included cost of travel to locations in different cities where the defendant's stores were located, food and lodging and various other local expenses. PW1 and PW2 clearly deposed that pursuant to CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 63 the assurances of Vivek Prakash of the defendant company for reimbursement of such expences, said expences mentioned in those debit notes were incurred. There is no cross-examination of PW1 and PW2 on these three debit notes. The defendant has not got examined Vivek Prakash to show that no such assurances were given by him.
Full and Final Settlement and Correspondence between the parties about bills and payments due
80. It is admitted that the defendant paid rupees 3,95,740/- through cheque (Ex.DW1/9 or Ex.P1) to the plaintff. The defendant takes stand that as per settlement of accounts defendant was to pay full and final settlement amount of rupees 3,95,740/- which was duly paid and accepted and received by the plaintiff and nothing remains due. But the plaintff's stand is that said amount is not full and final settlement and this payment was rupees 8,43,599/- short of the total amount outstanding which was due and payable from the defendant company to the plaintff.
81. On cheque (Ex,DW1/9), "Ful and Fainal Payment" has been written. It is not in dispute that the said cheque was handed over to one of the runner/office boys of the plaintiff who was sent to collect it. But neither of the parties could recollect/remember the name of said boy as has been come in his cross-examination of PW1 and of DW1. It is not clear in whose handwriting an endorsement of said "ful and Fainal Payment" has been made. The handwriting is not proved. It has also not been proved by the defendant that office boy of the plaintiff firm had CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 64 been authorisd by the plaintff to make such a full and final payment. Such an endorsement is also inconsistent with all the email exchanges between the parties. There is no email which shows that said cheque amount was full and final settlement between the parties.
82. The proprietor of the plaintiff, Kapil Pandey, sent an email dated 25.08.2009 (Ex. PW1/37) to Vivek Prakash and Alok Sharma with the dues payable by the defendant and requesting the defendant to clear the same at the earliest. Vivek Prakash of defendant company sent an email dated 26.08.2009 (Ex.PW1/37) to the plaintiff that he had perused the statements and the same would be processed and payments would be made at the end of the next week. The proprietor of the plaintiff replied to the said email dated 26.8.2009 (Ex.PW1/37) requesting the defendant to clear the payments at the earliest. The plaintiff wrote another email dated 20.09.2009 (Ex.PW1/37) to Vivek Prakash and Alok Sharma again reminding them that payments had not been made despite assurances that they would be cleared.
83. Again, the proprietor of the plaintiff, Kapil Pandey, PW1 issued an email dated 29.09.2009 (Ex.PW1/37) to Vivek Sharma and Alok Sharma stating that it had been over a month and the defendant had not responded to the plaintiff regarding pending payments. He wrote an email dated 28.02.2010 (Ex.PW1/37) to Vivek Prakash, also marking the Defendant Company's Director Samarth Bedi and the account's department of the defendant, stating that he had been waiting for the payments, however the defendant had not reverted to the plaintiff.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 65 Vivek Prakash of the defendant company via email dated 28.02.2010 (Ex.PW/37) replied to the plaintiff's email in which he stated that he had to go out of Delhi on some work and that he would return by wednesday. The proprietor of the plaintiff replied to Vivek Prakash via email dated 01.03.2010 (Ex.PW1/37), in which he communicated that he hoped that the defendant would keep their time this time around.
84. Vivek Prakash of defendant company sent an email dated 02.03.2010 (Ex.PW1/37) saying that he had discussed the bills of the plaintiff with the CMD and that the "approved" bills would be cleared and paid by the accounts department of the defendant company. The defendant company for the first time referred to some "factors that are unnecessary to go into now" and mentioned about "approved" bills. This email was also marked to DW 1 Sanjay Singh from the accounts department of the defendant. The proprietor of the plaintiff, Kapil Pandey, immediately issued an email dated 03.03.2010 to Vivek Prakash. This email was also marked to Samrath Bedi and Sanjay Singh. In the aforesaid email, the plaintiff expressed that he did not understand what was meant by the remarks being made by the defendant in its email dated 02.03.2010 (Ex.PW1/37) and requested for clarity on the same. The plaintiff explained that he had got quality feedback from Alok Sharma earlier and any rectification pointed out was carried out extremely fast. Kapil Pandey further stated that if any other issues or factors had been pointed, the plaintiff would have also addressed the same, however, the defendant had not raised any other issues earlier. Kapil Pandey reminded the defendant that he raised bills CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 66 on the defendant in August 2009 and had been assured that the payments would be made in a weeks' time. The plaintiff further sought clarity on the "approved" and "unapproved" bills and expected that the clarity and payments would be made by Friday.
85. The plaintiff again issued an email dated 06.03.2010 (Ex.PW1/37) to Vivek Prakash, Samrath Bedi and Sanjay Singh as he had not heard back from the defendant. On the same day, Sanjay Singh issued an email dated 06.03.2010 (Ex.PW1/37) telling the plaintiff that the defendant did not have invoice details of some activity and requested the plaintiff to provide the same. In response, the plaintiff immediately again sent its Bills as an attachment to Sanjay Singh (DW1) via email dated 07.03.2010 (Ex.PW1/37). Again, DW 1 issued an email 10.03.2010 (Ex.PW1/37) to the plaintiff stating that he did not have some invoices and acknowledged receiving them the day before. The plaintiff for the first time was told that some items were defective and could not be used in the defendant's store, and thereafter, stated that the defendants had made some deductions in the Bills of the plaintiff. DW 1 made no reference to any letter issued earlier by the defendant in which it was communicated that defective or sub-standard materials had been supplied by the plaintiff. The plaintiff replied to the email of Sanjay Singh and expressed that email dated 10.03.2010 sent by him was shocking and unacceptable.
86. The plaintiff issued another email dated 15.03.2010 (Ex.PW1/37) to the defendant company detailing the discussion with Vivek Prakash CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 67 regarding the work undertaken by the plaintiff providing photographs of the same wherever required. The plaintiff stated that he did not agree with the defendant's remarks not to pay for certain items. The plaintiff once again attached to said email dated 15.03.2010 its Bills along with some photographs.
87. Thereafter, the plaintiff issued several emails dated 29.04.2010, 16.05.2010 and 27.06.2010 (Ex.PW1/37) to Mira Kulkarni requesting her to clear the payments which were due for almost a year. Instead of replying to the plaintiff, Mira Kulkarni merely marked Kapil Pandey an email dated 27.06.2010 (Ex.PW1/37) sent by her to Sanjay Singh (DW1) in which she suddenly communicated that she was given to understand that the plaintiff had been given a sum as full and final settlement. Kapil Pandey immediately replied to the aforesaid email dated 27.06.2010 on the same day via email (Ex.PW1/37) and explained that he had been given a cheque, however, almost 7 lakhs was still due and that the plaintiff had been told that the balance payments would only be released after the plaintiff met with Mira Kulkarni. It is seen from the above that prior to receiving the payment on 22.04.2010 and after receipt of the said payment, the plaintiff has continuously written emails to the defendant objecting to the deductions of about 7-8 lakhs that was made by the defendant. These emails clearly show that it was never the stand of the plaintiff that the payment of rupees 3,95,740/- vide cheque dated 22.04.2010 was towards full and final settlement. In this regard, PW1 during his cross-examination has deposed that he has accepted the cheque for rupees 3,95,740//- from the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 68 defendant but it was not as full and final settlement. The expression "full and final settlement" has been introduced for the first time by Mira Kulkarni of the defendant in her email dated 27.06.2010 (Ex.PW1/37).
88. The further stand of the plaintiff is that the defendant has forged the writing on the receipt of the cheque (Ex.P1) stating "full and final settlement". It is seen from the various emails filed in the present case that the plaintiff, through Kapil Pandey and Ganga Sagar, communicated with Vivek Prakash and Alok Sharma from the defendant company.It is also clearly seen from the documents filed by the plaintiff that most of the communications between the parties were through emails exchanged with Vivek Prakash and Alok Sharma of the defendant. Several of these emails have been marked to the directors of the defendant. Emails have also been issued by the directors of the defendant, namely, Samrath Bedi and Mira Kulkari. Contents of the emails clearly show that it was Vivek Prakash and Alok Sharma that placed orders on the plaintiff on behalf of the defendant and not the accounts office of the defendant. These mails were also marked to Samrath Bedi, a director of the defendant company and several emails have been marked to Mira Kulkarni. It is clearly established from these emails that the directors of the defendant were directly communicating with the plaintiff particularly for the "Tree of Life" design and the directors were also aware of the communications issued by Vivek Prakash and Alok Sharma on behalf of the defendant. DW 1 has deposed that only the accounts department had the authority to issue work orders and any other order placed by any other officials of the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 69 defendant was unauthorized. However, this is not borne out from any of the numerous emails which have been exchanged between the parties and therefore, this stand can be said to be false and concocted defence.
89. It is further important to point out that in the email interactions with the defendant, there is no mention of Sanjay Singh (DW1). He is only brought into the picture in March 2010 when the plaintiff started pressing for his payments as the plaintiff's bills had not been cleared for a long time. This also shows that the DW1 and the accounts department were not at all involved in the discussions and in the decisions of the defendant company as regards the work to be undertaken by the plaintiff.
90. In view of above discussion, I am of the view that the payment of rupees 3,95,740/- made by defendant to the plaintiff was not towards full and final settlement of all the claims inter se the parties; that the bills/invoices raised by the plaintiff are not forged and fabricated and have been raised for material and services ordered by the defendant; that the purchase orders and letters filed by the defendant along with written statement can not be said to be genuine; that the plaintiff is entitled to recovery of suit amount (principal amount), as prayed for. Hence issue numbers 1 to 4 are decided in favour of the plaintiff and against the defendant accordingly.
91. Issue No. 6: Whether the defendant has infringed the copyright of plaintiff in the 'Tree of Life' design and plaintiff is entitled to CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 70 damages, as prayed for? OPP PW1 deposed that upon receiving approval of the final design from the defendant company, the plaintiff produced and installed the 'Tree of Life' graphic at the Khan Market store of the defendant Company. He also deposed that later on 20.7.2009 Alok Sharma of the defendant company asked for a high resolution file of the said 'tree of life' work on a Compact Disc which was duly delivered by him; that though the bill for the same was never paid by the defendant; that thereafter, the defendant company remained silent about further production of the said graphics for the other stores; that however, much later, behind the back of the plaintiff the defendant company proceeded to install a print of the same "Tree of Life" designed by the plaintiff in the other stores of the defendant company; that this was clearly an infringement of the intellectual property rights of the plaintiff in the "Tree of Life" design and a breach of their working relationship. PW2 (Ganga Sagar) has also corroborated the testimony of PW1 qua installation a print of the same "Tree of Life" in the other stores of the defendant company in violation of the copyright of the plaintiff. The plaintiff has claimed compensation of an amount of rupees 5 lacs as damages and compensation for the infringement of copyright in the 'Tree of Life' design of the plaintiff by the defendant.
92. The stand taken by the defendant in this regard is that "Tree of life" design adopted and approved by the defendant company is different in all aspects, from the alleged design of "Tree of life" of the CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 71 plaintiff company; that defendant company when fed-up with the repeated demand to furnish the approved final sample was left with no other alternative, but to get the job done from the vendors. The computerised printout "Tree of Life" adopted by the defendant company in its stores has been placed on record which is Ex.DW1/2. The photographs of "Tree of Life" created by the plaintiff have also been placed on record which are Mark A, B and C. I have perused the "Tree of Life" (Ex.DW1/2) and "Tree of Life" (Mark A, B and C) and found that Ex.DW1/2 cannot be said to be similar to Mark (Mark A, B and C). The "Tree of Life" of defendant company is different in all aspects, from the design of "Tree of life" of the plaintiff. The "Tree of Life"
design is not registered in the name of the plaintff. In view of said dissimilarity, no copyright of "Tree of Life" from the defendant company can be claimed by the plaintiff. Hence, claim of rupees five lac as damages and compensation for infringement of copyright is not proved by the plaintiff. This issue is decided against the plaintiff and in favour of the defendant.
93. Issue No. 5: Whether the plaintiff is entitled to grant of mandatory injunction, as prayed for? OPP The plaintiff has sought mandatory injunction against the defendant from using the "Tree of life" design in any its shops. Because, issue number 6 has been decided against the plaintiff, no such mandatory injunction can be granted against the defendant. Hence, this issue is decided against the plaintiff and in favour of the defendant.
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 72
94. Issue No. 7:. Whether the plaintiff is entitled to interest on the suit amount, as prayed for? If so, at what rate and for what period? OPP The transactions between the parties were commercial. Keeping in view the facts and circumstances of the case, I am of the view that the plaintiff is entitled to interest on the principal amount of rupees 8,43,599/-at the rate of twelve per cent per annum with effect from May, 2010 to the date of payment. Hence, this issue is decided in favour of the plaintiff and against the defendant accordingly.
95. Issue No. 8: Relief.
In view of my findings on issue numbers 1 to 7, the suit of the plaintiff is decreed against the defendant with costs for a sum of rupees 8,43,599/- alongwith interest at the rate of twelve per cent per annum with effect from May, 2010 to the date of payment.
Digitally signed by SANJEEV SANJEEV KUMAR
Dated: 13.04.2022 KUMAR Date: 2022.04.13
15:31:08 +0530
(Sanjeev Kumar-II)
Additional District Judge-04,
South District, Saket Courts, New Delhi
CS DJ 248/2020 Vision D.I.S. v. Mountain Valley Springs India Pvt. Ltd. 73