Delhi District Court
Zee Entertainment Enterprises Ltd vs Point Zero Entertainment Pvt Ltd on 28 July, 2022
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IN THE COURT OF MS. SHIVALI BANSAL
ADJ-03 NORTH DISTRICT, ROHINI COURTS, DELHI
CS No. 58577/16
CNR No. DLNT010004522011
In the matter of :-
Zee Entertainment Enterprises Ltd.
(formerly / erstwhile E. T. C Network Limited)
Having its Branch office at
Essel House, B-10, Lawrence Road,
Industrial Area, Delhi - 110035. ...... Plaintiff
Versus
Point Zero Entertainment Pvt Ltd.
A company incorporated under
The companies Act 1956,
Having its office at SCF-68,
Phase-10, Sector-64, SAS Nagar, Mohali,
Punjab, through its Managing Director ..... Defendant
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 1 of 25
Vs.
Point Zero Entertainment Pvt Ltd.
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Date of Institution : 29.04.2011
Date of reserving Judgment : 06.07.2022
Date of pronouncement : 28.07.2022
SUIT FOR RECOVERY OF Rs. 9,77,781/- (RUPEES NINE
LAKHS SEVENTY SEVEN THOUSAND SEVEN HUNDRED
AND EIGHTY ONE ONLY) ALONGWITH PENDELITE
AND FUTURE INTEREST.
JUDGMENT
1. The Present suit was filed for recovery of amount of Rs. 9,77,781/- alongwith interest pendente lite as well as future interest @2.5% per month on account of advertisement services made for the defendants.
2. It is the case of the plaintiff that the plaintiff is company duly registered under the Companies Act, 1956 and is carrying on the business of broadcasting entertainment programmes on its Satellite television channel known as "ETC' and ETC Channel Punjabi". Initially, ETC Networks Ltd. was a company registered and incorporated under the Companies Act, 1956 which had its dealing with the defendant company. Subsequently, thereto ETC Network Ltd. has been amalgamated with ZEE Entertainment Enterprises Ltd., the plaintiff herein pursuant to the relevant provisions of the Companies Act, 1956. Consequently, all the CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 2 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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businesses, liabilities, claims etc. were transferred to the plaintiff company. The plaintiff is having its registered office at Continental Building, Dr. Annie Besant Road, Worli, Mumbai and the corporate office at Mumbai is 7-B, Shah Industrial Estate, Off Veera Desai Road, Andheri (W), Mumbai-400053. The plaintiff company also has its local/ branch office in Delhi at Essel House, B-10, Lawrence Road Industrial Area, Delhi-110035.
3. The plaintiff stated that in terms of the scheme of amalgamation of ETC Network Ltd. with Zee Entertainment Enterprises Ltd., the plaintiff herein upon coming into the effect of the scheme, all the business, assets, properties and liabilities etc. of the ETC Network Ltd. stood transferred to and vested in Zee Entertainment Enterprises Ltd. The relevant clause of the scheme of Amalgamation is reproduced herein under:-
"PART II AMALGAMATION OF ETC NETWORKS LIMITED WITH ZEE ENTERTAINMENT ENTERPRISES LIMITED TRANSFER AND VESTING OF UNDERTAKING 5.1 Upon the coming into effect of this Scheme and with effect from the Amalgamation Appointed Date the while of the business, assets, (whether movable or immovable, real or personal, corporeal or incorporeal, present, future or contingent, tangible or intangible including trademarks, intellectual property rights, copyrights etc.) properties and liabilities of ETC"
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 3 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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4. The plaintiff further stated that the said scheme of Amalgamation has been approved by the Hon'ble High Court of Judicature at Bombay in Company Scheme Petition no. 291-293 of 2010 vide its order dated 16.07.2010. Therefore, all the rights, assets, business, interests etc. stands merged in and assigned to the Plaintiff Company.
5. The plaintiff stated that the defendant is a company which is carrying on the business of advertising being an advertising agency at the address SCF-68, SAS Nagar, Mohali, Punjab. The plaintiff further stated that the channels are very popular and are "free to air" channels, i.e. no decoding is required for the purpose of receiving the signals of the plaintiff's channels broadcast and aired on the satellite TV and no subscription fee is to be paid by the viewers. Further, any advertiser desirous of airing and broadcasting its advertisement issues a release order to the plaintiff directly or through an advertising agency specifying the details of the advertisement/ commercial to be aired on the concerned channel of the plaintiff. The details include the airing time, the duration, the progamme, the channels in which commercial is to be aired, the rate/ amount for the above advertisements, etc. based on the release order the plaintiff company airs and broadcasts the commercial/ advertisement and thereafter raises an invoice upon the advertiser concerned towards CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 4 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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the broadcast/ service charges which have to be paid by the advertiser within a period of 60 days from the date of invoice, other terms and conditions mentioned in the said invoice. A transmission/ telecast certificate showing the detailed proof of telecast of the advertisements is also furnished by the plaintiff alongwith the invoice duly certifying the telecast of the advertisements in accordance with the release orders.
6. The plaintiff stated that the dealings involved in the present suit pertains to the period somewhere in the year 2008 when the defendant has booked several advertisements on the plaintiff's channel as stated in various release orders issued by the defendant and the plaintiff had telecasted and aired the said advertisements on their respective channels as per the specification given by the defendant in the release order. Thereafter, the plaintiff raised various invoices from time to time upon the defendant towards the service rendered by it. The defendant making on account or specific payments to the plaintiff towards/ in partial discharge of its debt in terms of the invoices raised upon the defendant. The plaintiff further stated that as per the understanding arrived between the parties, the payments were to be adjusted by the plaintiff on "first in first out" basis unless specific instructions given by the defendant. And after adjusting the payment received from the defendant, the balance outstanding was carried forwarded to the next year, the books of account of the defendant being CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 5 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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maintained by the plaintiff company in the normal and ordinary course of its business.
7. The plaintiff stated that the plaintiff company reconciled and examined the accounts of the defendant being maintained by it in its book somewhere in the month of January 2008 and thereafter in March 2008 and found out that no payments whatsoever were made by the defendant to the plaintiff in lieu of the invoices raised by the plaintiff. The plaintiff mentioned the tabulation of 13 invoices which are claimed in the present suit. The plaintiff stated that the said invoices were duly received by the defendant and alongwith each invoice, the defendant was furnished with a transmission/ telecast certificate showing the detailed proof of telecast of the advertisement which has been accepted by the defendant without any protest or reservation.
8. The plaintiff stated that the default committed by the defendant and in view of the failure on the part of the defendant to make payment of the plaintiff's outstanding dues under the said invoices within the time prescribed and agreed to in the invoices, the plaintiff repeated followed up the matter with the defendant and its managing director. The plaintiff was compelled to address a legal notice dated 19.03.2010 sent vide registered A.D. through its advocate, the said notice was duly received by the defendant company at its address. In spite of the receipt of the same, the defendant company vaguely replied to the notice. The plaintiff CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 6 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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categorically stated that the invoices sent to the defendant mentioned the jurisdiction of the Delhi courts only. And the release orders were addressed to and sent by the defendant to the plaintiff at its Delhi office. Further, the invoices, part payments and telecast certificates were raised issued by the Delhi office of the plaintiff.
9. The defendant in its written statement stated that the present suit for recovery on the basis of false and fraudulent claims and assertions which are totally incorrect and baseless thus not maintainable against the defendant ad is liable to be dismissed. Further the present suit is liable to be dismissed at the outset for want of territorial jurisdiction. The defendant categorically stated that the defendant company has its registered and main office at SCF 68, Phase 10, Sector-64, Mohali (Punjab) and the defendant has no branch office in the jurisdiction of this court whatsoever, thus, the present suit had to be filed in the appropriate courts at Mohali (Punjab). The defendant company had dealings with M/s ETC Networks Limited through its executive Mr. Gurmeet Singh at Mohali (Punjab). The defendant further stated that the release orders were never sent by the defendant company to the plaintiff company at its Delhi office at New Delhi. And the plaintiff company has no proof whatsoever of having received any release order sent by the defendant company. The payments were made by the defendant company by cheques to M/s ETC Networks Limited CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 7 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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as well as by cash were made to their executive Mr. Gurmeet Singh at Mohali (Punjab).
10.The defendant further stated that the defendant company stopped its dealings with the plaintiff company in March 2008 and had no business dealings with the plaintiff company after March 2008. And the present suit has been filed on 27.04.2011 after a period of three years from the date of last alleged invoice raised by the plaintiff i.e. 31.03.2008. Further, the defendant stated that the plaintiff in the present suit is M/s Zee Entertainment Enterprises Ltd. whereas the defendant had no connection with the plaintiff company.
11.The defendant stated that by the scheme of amalgamation the assets, rights, debts, liabilities, duties and obligations of M/s ETC Networks Ltd. are transferred to the plaintiff company but the scheme has no mention/ reference of any third party liabilities towards M/s ETC Networks Ltd. At the time of amalgamation of the plaintiff company with M/s ETC Networks Ltd., the defendant company had no existing liability towards M/s ETC Networks Ltd.
12.The defendant pointed out that the plaintiff stated that the defendant was carrying on the advertising being the advertising agency at the mentioned address i.e. the registered address of the defendant company "SCF 68, Phase 10, Sector 64, Mohali (Punjab). However, the alleged release orders purported to be CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 8 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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issued by the defendant bear the address "House No.55, Phase 3B1, Mohali (Punjab). Even the alleged invoices raised by M/s ETC Networks Ltd. in favor of the defendant bear the addresses i.e. House No.55, Phase 3B1, Mohali (Punjab) and No.15, Street No.3, Baba Budh Ji Enclave, Dakoda, Jalandhar Cantt., Jalandhar". And the defendant company neither has any office at No.15, Street No.3, Baba Budh Ji Enclave, Dakoda, Jalandhar Cantt., Jalandhar. The defendant further stated that the defendant is neither an advertising agency nor carries on business at any place apart from the registered office of the company. The defendant is in the business of music and entertainment dealing in production/ acquisition of sound recordings and the associated works and exploring the same in various modes, manners and formats. The defendant further stated that the documents including the alleged release orders, invoices as well as telecast certificates relied by the plaintiff to substantiate their claim are not in the knowledge of the defendant they neither sent to the defendant company nor does the defendant have any knowledge.
13.The defendant specifically denies the issuance of any of the alleged release orders by the defendant which has been annexed by the plaintiff with the plaint. The defendant further clarified that the defendant has not issued any of the said alleged release orders. And the alleged release orders annexed with the plaint neither bear the signatures of the authorized representative of the CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 9 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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defendant company nor does it bear the stamp/ seal of the defendant company. The defendant stated that the present suit is liable to be dismissed at the outset for want of proof to substantiate the claim of the plaintiff, as the plaintiff has not been able to prove the release orders which is the basis of the entire claim of the plaintiff. The defendant stated that the defendant vide its reply dated 14.04.2010 to the legal notice dated 19.03.2010 requested the plaintiff to provide the release orders to substantiate the claim but the same were not provided to the defendant.
14.The defendant specifically stated that the defendant has not issued any of the said release orders. The alleged release orders annexed with the plaint neither bear the signature of authorized representative of the defendant company nor does it bear the stamp/ seal of the defendant company, and the alleged release orders attached with the plaint are forged, false and a fraudulent tool to extract money from the defendant. The defendant further stated that mere raising of invoices without valid release orders does not entitle the plaintiff company to extort money from the defendant.
15.The defendant stated that the defendant always made advance payments to the plaintiff company during its association and business dealings with the plaintiff and the defendant never made any payments in partial discharge of its liability. The defendant further denied that there was any understanding between the CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 10 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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parties that the payments made by the defendant were to be adjusted by the plaintiff on "first in first out" basis. The defendant denied that there was an agreement between the plaintiff and the defendant to this effect and further denied that the balance outstanding in particular year was to be carried forward to the next year in the books of accounts of the defendant being maintained by the plaintiff company in the normal course of its business. The defendant categorically denied that the defendant had received and accepted the said alleged invoices and transmission/ telecast certificates. The defendant clarified that the defendant has neither raised the alleged release orders, nor accepted the service of the plaintiff and further not received the said alleged invoices so the question relating to their correctness as to quality and acceptance of the same does not arise. The defendant further denied any outstanding due under the alleged invoices.
16.The plaintiff in its replication stated that the this court has territorial jurisdiction to adjudicate upon the present suit as the invoices sent to the defendant company explicitly conferred jurisdiction of Delhi courts in the event of any dispute arising between the parties. The plaintiff further stated that the registered office of the defendant company SCF 68, Phase 10, Sector-64, Mohali (Punjab), however, the release orders, invoices and telecast certificates were addressed to and sent by the defendant to the plaintiff at its Delhi office at New Delhi. And the release CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 11 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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orders issued by the defendant bear the address of the defendant from where the defendant was operating at the time of the issuance of the invoice.
17.The plaintiff denied that the invoices issued by the plaintiff company contains incorrect addresses of the defendant company as the defendant company have been operating from the addresses i.e. "House No.55, Phase 3B1, Mohali (Punjab) and No.15, Street No.3, Baba Budh Ji Enclave, Dakoda, Jalandhar Cantt., Jalandhar" as is clearly reflected from the invoices issued by the plaintiff. The plaintiff further denied that the said invoices are false, forged and a fraudulent way to extract money from the defendant.
18.On the basis of pleadings of the plaintiff and defendant, the following issues were framed vide order dated 17.04.2012:-
1. Whether the plaintiff is entitled to a decree of recovery of Rs. 9,87,781/- as per prayer clause (a) of the plaint? OPP.
2. Whether the plaintiff is also entitled to recover interest @ 2.5 per month as per prayer clause (b) of the plaint or at what other rate? OPP.
3. Whether this court has not territorial jurisdiction to entertain and try the present suit as per PO No.2 of WS?
OPD.
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 12 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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4. Whether there is no cause of action in favour of plaintiff and against the defendant? OPD.
5. Relief.
19.The defendant was proceeded ex parte vide order dated 22.02.2018.
20.In support if its case and in order to prove its case, the plaintiff examined as PW-1 Ms. Annie. The PW1 tendered its evidence by way of affidavit Ex. PW1/A. PW-1 has relied upon the following documents:-
1. Ex. PW1/1, is the certified copy of POA dated 21.05.2018.
2. Mark PW1/2 is Scheme of Amalgamation.
3. Mark PW1/3 is the copy of the order dated 16.07.2010 passed by Hon'ble High Court of Bombay.
4. Mark PW1/4 is the certificate of incorporation.
5. Mark PW1/5 is the copy of POA dated 15.05.2006.
6. Mark PW1/6 (Colly.) are the computed generated release order.
7. Mark PW1/7 (Colly.) are the computer generated Invoice No. EA/ET/X/000799/07-08 dated 31.01.2008 alongwith copy of telecast certificate.
8. Mark PW1/8 (Colly.) are the computer generated Invoice No. EA/ET/X/000814/07-08 dated 31.01.2008 alongwith copy of telecast certificate.
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 13 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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9. Mark PW1/9 (Colly.) are the computer generated Invoice No. EA/ET/X/000842/07-08 dated 31.01.2008 alongwith copy of telecast certificate.
10.Mark PW1/10 (Colly.) are the computer generated Invoice No. EA/ET/X/000862/07-08 dated 31.01.2008 alongwith copy of telecast certificate.
11.Mark PW1/11 (Colly.) are the computer generated Invoice No. EA/ET/X/000875/07-08 dated 31.01.2008 alongwith copy of telecast certificate.
12.Mark PW1/12 (Colly.) are the computer generated Invoice No. EA/ET/X/000833/07-08 dated 29.02.2008 alongwith copy of telecast certificate.
13.Mark PW1/13 (Colly.) are the computer generated Invoice No. EA/ET/X/000884/07-08 dated 29.02.2008 alongwith copy of telecast certificate.
14.Mark PW1/14 (Colly.) are the computer generated Invoice No. EA/ET/X/000895/07-08 dated 29.02.2008 alongwith copy of telecast certificate.
15.Mark PW1/15 (Colly.) are the computer generated Invoice No. EA/ET/X/000912/07-08 dated 29.02.2008 alongwith copy of telecast certificate.
16.Mark PW1/16 (Colly.) are the computer generated Invoice No. EA/ET/X/000931/07-08 dated 29.02.2008 alongwith copy of telecast certificate.
17.Mark PW1/17 (Colly.) are the computer generated Invoice No. EA/ET/X/000939/07-08 dated 29.02.2008 alongwith copy of telecast certificate.
18.Mark PW1/18 (Colly.) are the computer generated Invoice No. EA/ET/X/0001000/07-08 dated 31.03.2008 alongwith copy of telecast certificate.
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 14 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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19.Mark PW1/19 (Colly.) are the computer generated Invoice No. EA/ET/X/000965/07-08 dated 31.03.2008 alongwith copy of telecast certificate.
20.Mark PW1/20 (Colly.) are the legal notice dated 19.03.2010 alongwith postal receipts and AD card.
21.Mark PW1/21 is the reply to the legal notice dated 23.02.2010.
21. I have heard, Ld. Counsels for the plaintiff and averments of defendants in WS and gone through the record of the case and relevant provision of law.
22. The court's considered findings on the issues are as follows:
ISSUE No.1 Whether the plaintiff is entitled to a decree of recovery of Rs. 9,87,781/- as per prayer clause (a) of the plaint? OPP The burden to prove this issue is upon the plaintiff. In order to prove his case to this effect, he placed reliance upon his testimony as PW-1 and the documents Ex. PW1/1 (colly) to Ex. PW1/7 (colly).
Locus of the plaintiff to file the present suit:
The first and the foremost aspect of this suit is that after merger/ amalgamation, the plaintiff has the locus to file the present suit for the debts of the formerly/ erstwhile M/s ETC Networks Ltd. company which was purportedly providing advertisement services to the defendant.This court relies on the Hon'ble Supreme Court CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 15 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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decision in Bhagwan Dass Chopra v. United Bank of India, 1987 Supp. Supreme Court Cases 536 wherein it was held that in every case of transfer, devolution, merger or scheme of amalgamation, in which rights and liabilities of one company are transferred or devolved upon another company, the successor-in-interest becomes entitled to the liabilities and assets of the transferor company subject to the terms and conditions of contract of transfer or merger, as it were. Further, the apex court in Saraswati Industrial Syndicate v. CIT, 1990 Supp. Supreme Court Cases 675 had categorically held as follows:
"there can be no doubt that when two companies amalgamate and merge into one, the transferor company loses its identity as it ceases to have its business. However, their respective rights and liabilities are determined under the scheme of amalgamation, but the corporate identity of transferor company ceases to exist with effect from the date the amalgamation is made effective."
Therefore, the court is of the considered view that the plaintiff company after merger/ amalgamation holds the rights and liabilities of the erstwhile merged company M/s ETC Networks Ltd.
Standard of Proof on the Plaintiff As per the Section 101 of the Indian Evidence Act, the plaintiff must prove the existence of any claim even if the defendant vide CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 16 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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this court order dated 22.02.2018 declared as ex-parte,. However, the defendant in its written statement out rightly denied the claim of the plaintiff company and categorically stated that release orders attached with the plaint are forged, false and a fraudulent and the invoices does not bear any sign and stamp of the defendant. Therefore, the plaintiff has to prove his case and stand on his own legs. Further, the court's reliance is placed on the Hon'ble Madras High Court in the case K. Balakrishnan vs. S. Dhanasekhar, 2017 SCC Online Mad 30659 where it was held as follows:
"When the defendant is set ex parte, the burden is heavy on the Court, as it would not have the advantage of defence. Therefore, the Court should be extra careful in such cases and they should consider the pleadings and evidence and should arrive at a finding as to whether the plaintiff has made out a case for a decree."
Appreciation of Evidence lead by the plaintiff:
Absence of Balance Sheets, auditors report etc The plaintiff had filed Ex. PW1/6 (colly) to Ex. PW1/19 (colly) to substantiate its claim against the defendant. The claim amount of the plaintiff must have been disclosed at the first instance under Section 211 of the Companies Act 1956 whereby every balance sheet of a company must give a true and fair view of the state of its affairs as at the end of financial year and the same must be in CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 17 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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the form set out in Part I of Schedule VI. And if the advertisement services were actually rendered to the defendant then such debt must be reflected in the current assets of the plaintiff as trade receivables. A receivable shall be classified as a 'trade receivable' if it is in respect of the amount due on account of goods sold or services rendered in the normal course of business. The plaintiff deliberately failed to place on record the audited balance sheets, auditors report and list of assets, creditors etc. which must be filed before Hon'ble High Court of Bombay in Company Scheme Petition No. 291-293 of 2010 alongwith supporting affidavit for amalgamation.
Absence of Service Tax Returns Further, the documents Ex. PW1/6 (colly) to Ex. PW1/19 (colly) were tax invoices and applicable service tax was levied, the plaintiff did not furnished the service tax returns for the material time which is statutory obligation under the provisions of the Service Tax Act to substantiate that the actual advertisement services were provided to the defendant. The advertisement services were taxable services under Section 65 of the Service tax Act, 1994 time in force. Such levied service tax in Ex. PW1/7 (colly) to Ex. PW1/19 (colly) is the part of claimed amount in the present suit. It is relevant to discuss Rule 7 of the Service Tax Rules, 1994, read with section 70(1) of the Service tax Act, 1994 whereby every person registered under Section 68 of the Service CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 18 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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Tax liable to pay service tax has to submit service Tax return periodically in the prescribed form before the statutory authority. The plaintiff deliberately failed to produce the service tax returns for the relevant period.
Non-bearing of signatures/stamps of defendant On careful perusal of the documents Ex. PW1/6 (colly) to Ex. PW1/19 (colly), the court has found that such computer generated invoices and release order documents were not received by the defendant and does not bear any signature and stamp of the defendant. The court relied upon the judgment of the Hon'ble Delhi High Court in Harish Mansukhani vs. Ashok Jain, 2009 (109) DRJ 126 wherein it was held as follows:
"Mere raising of a bill and reflecting the same in a statement of account is not good evidence without establishing delivery of the goods under the bills. We may hasten to add that in the instant case there is no evidence to even establish that the bills were raised upon the defendant, in that, were ever delivered to the defendant. There is no contemporaneous letter proved on record in which the plaintiff made grievance upon the defendant that a huge outstanding amount was due from the defendant to the plaintiff."
The telecast certificates of all the documents Ex. PW1/7 (Colly) to PW1/19 (Colly) does not have any sign and stamp of CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 19 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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the defendant and delivery and service towards such telecast certificates has not been proved. All the documents relied upon by the plaintiff does not have any endorsement/ acknowledgment of the defendant or any of its authorized person.
Emails not admitted/proved PW1 in its evidence by way of affidavit had not specifically mentioned and admitted the emails dated 14.01.2008 sent from "[email protected]" to "[email protected]" in Ex. PW1/6 (colly). The relevant extract from the evidence of PW1 is reproduced herein below:
"10. That the dealings of the defendant with the plaintiff company, involved in the present suit started somewhere in the year 2008. During the period January 2008 to March 2008 the defendant had booked several advertisements on the plaintiff's channel as stated in various release orders issued by the defendants and as per the said orders, the plaintiff had telecast and aired the said advertisements on their respective channels as per the specification given by the defendants in the release orders, to the entire satisfaction of the defendants. The computer-generated release orders are Ex. PW1/6 (Colly)."
Further the plaintiff has not proved the said emails were exchanged between the plaintiff and the defendant or their authorized persons, even the sender does not have any authorization and authority of the defendant. And the said emails CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 20 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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were without any subject and contents in the emails except attachments. Pertinently, the alleged release order by the defendant does not bear any date, signature, stamp and authority letter.The plaintiff attached a copy of email in PW1/18 (colly), the sender of the said email was Kanwal Deep Kohli, Vice President Frankfinn Music, BEST Building, "A' Wing, 5th Floor, Andheri (W) Mumbai, which has no bearing with the present suit.
Discrepancies in invoices On careful perusal of the invoices, the invoices in Ex. PW1/8 (colly) to Ex. PW1/17 (colly) relied upon by the plaintiff had not mentioned service tax numbers, except the invoice in PW1/7, PW1/15, PW1/18 and PW1/19. To relate this issue, it would be appropriate to reproduce Rule 4A of the Service Tax Rules, 1994 and the relevant portion is as follows:
"4A. Taxable service to be provided or credit to be distributed on invoice, bill or challan - (1) Every person providing taxable service[, not later than [thirty] days from the date of [completion] of such taxable service or receipt of any payment towards the value of such taxable service, whichever is earlier, shall issue an invoice, a bill or, as the case may be, a challan signed by such person or a person authorized by him in respect such taxable service provided or [agreed]to be provided and such invoice, bill or, as the case may be, challan shall be serially numbered and shall contain the following, namely :-
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 21 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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(i) the name, address and the registration number of such person;
(ii) the name and address of the person receiving taxable service;
(iii) description and value of taxable service provided or agreed to be provided; and
(iv) the service tax payable thereon.
[Provided ............................"
Therefore, the above mentioned invoices has even failed the test of statutory provisions of Service Tax Act also.
The invoices itself has ambiguity the alleged invoices of the plaintiff requires serious introspection of this court. The invoices in Ex. PW1/8 (Colly) to PW1/17 (Colly) dated 31.01.2008 and 29.02.2008, except the invoice in Ex. PW1/15 (colly), the addresses of the defendant mentioned in the invoices are "No.-15, Street No.3, Baba Budha Ji Enclave, Dakoha, Jalandhar Cantt., New Delhi-110029". This address prima facie seems to be inappropriate as half address is of Jalandhar and half that of New Delhi. Further, the alleged invoices categorically mentioned the term which is subject to Mumbai jurisdiction. Pertinently, the said invoices does not have any sign and signature of the defendant and the invoices were not even signed and stamped by the plaintiff itself. The invoices in Ex. PW1/7 (colly), Ex. PW1/15 (colly), Ex. PW1/18 (colly) and Ex. PW1/19 (colly) dated 31.01.2008, 29.02.2008 and 31.03.2008 the CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 22 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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addresses of the defendant mentioned in the invoices are "House No.55, 3B1, Mohali, Chandigarh". Pertinently, the said invoices does not have any sign and stamp of the defendant.
The court has failed to understand as to how all the invoices have two different addresses of the defendant when the date of the invoices are same. And the addresses mentioned in the telecast certificates also does not match with the address of its respective invoices.
Ambiguity in the office address of the defendant Further, the defendant in its written statement categorically stated that the defendant company has its registered and main office at SCF 68, Phase 10, Sector-64, Mohali (Punjab) and the defendant has no branch office in the jurisdiction of this court whatsoever. The defendant categorically having office situated at House No.55, Phase 3B1, Mohali (Punjab) and No.15, Street No.3, Baba Budh Ji Enclave, Dakoda, Jalandhar Cantt., Jalandhar. And the plaintiff has not proved that the defendant was operating from the alleged such addresses which are other than the defendant's registered office.
In the light of above, as the case of the plaintiff regarding recovery of amount of Rs. 9,77,781/- has not been proved. Therefore, the issue in hand is decided in favour of the defendant and against the plaintiff.
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 23 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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ISSUE NO.2 Whether the plaintiff is also entitled to recover interest @ 2.5 per month as per prayer clause (b) of the plaint or at what other rate? OPP.
The burden to prove this issue is upon the plaintiff. As the Issue no.1 is decided against the plaintiff the present issue is also decided against the plaintiff and in favour of the defendant.
ISSUE NO.3 Whether this court has not territorial jurisdiction to entertain and try the present suit as per PO No.2 of WS? OPD.
The burden of prove this issue is upon the defendants. The defendants has not lead any evidence and failed to show that this court does not have the jurisdiction to decide the present suit. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 4 Whether there is no cause of action in favour of plaintiff and against the defendant? OPD.
The burden to prove this issue is upon the defendants and the defendant has failed to lead any evidence on the same. Accordingly, the present issue is decided against the defendants and in the favour of the plaintiff.
CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 24 of 25 Vs. Point Zero Entertainment Pvt Ltd.
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RELIEF The plaintiff is not entitled to any relief and the suit of the plaintiff is dismissed.
File be consigned to record room.
Announced in open Court (Shivali Bansal) Date : 28.07.2022 Additional District Judge-03, North District, Rohini Courts Delhi CS No. 58577/16 Zee Entertainment Enterprises Ltd. Page: 25 of 25 Vs. Point Zero Entertainment Pvt Ltd.