Delhi District Court
M/S. Sysnet Global Technologies Pvt. ... vs M/S. Galgotia College Of Engineering & ... on 11 January, 2021
IN THE COURT OF ADDITIONAL DISTRICT JUDGE(ADJ01)
SOUTH DISTRICT, SAKET COURTS
PRESIDED OVER BY MS. POOJA TALWAR
CS No.8489/16
ID No.DLST010004072010
IN THE MATTER OF:
M/s. Sysnet Global Technologies Pvt. Ltd.
Having its Registered Office at
D147, Okhla Industrial Area,
New Delhi110020
.....Plaintiff
VERSUS
1. M/s. Galgotia College of Engineering & Technologies
1, Knowledge Park PhaseII,
Greater Noida201306
Distt.Gautam Budh Nagar, U.P.
And also at:
Prakash Apartments, Ansari Road,
Darya Ganj, New Delhi110002
2. Smt. Shakuntala Educational & Welfare Society,
Prakash Apartments, Ansari Road,
Darya Ganj, New Delhi110002
.....Defendants
Date of filing : 15.01.2010.
Final arguments heard on : 08.01.2021.
Judgment pronounced on : 11.01.2021.
CS No.8489/16
M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 1 of 21
Suit for recovery of Rs.12,32,000/
J U D G M E N T:
1. This is a suit for recovery of Rs.12,32,000/against the defendant no.1 and 2.
PLAINTIFF CASE:
2. The case of plaintiff is that plaintiff is a Pvt. Ltd. Company and the present suit is filed through its Head Admin. Sh. M.M. Pande and Sh. Ashish Khatri, H.R. Manager vide resolution dated 12.05.2009. Plaintiff company is engaged in the business of networking/computer hardware and for providing AMC of computer/networking etc. Defendant no.2 is a registered society and is running various engineering and Management institutes and the day to day working conduct and business affairs of the defendant no.1 are looked after and controlled by the defendant no.2. Sh. Sunil Galgotia, is chairman of defendant no.1 and representative of defendant no.2.
3. Plaintiff company approached the defendant no.1 for the supplying of the hardware pertaining to computer networking and AMC. After discussion and deliberations plaintiff gave its quotation dated 21.08.2008 to defendant no.1 and it was called for executing the annual maintenance contract for computers and networking etc. Plaintiff was informed that it shall get payment in advance equal to three months maintenance charges at the beginning of the contract and CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 2 of 21the after expiry of two months it will be made on monthly basis in advance. Plaintiff and defendant no.2 and on behalf of defendant no.1 singed the contract dated 25.08.2008 for annual maintenance of computers and peripherals. It is stated that the plaintiff was informed that the bills pertaining to the work falling and forming part of the agreement dated 25.08.2008 be raised in the name of defendant no.2 and rest of the bills pertaining to the supply of hardware, computer networking, repairs laying, installation and management etc be raised in the name of defendant no.1. Thereafter plaintiff raised a bill dated 10.10.2008 for AMC for a period of September 2008 to November 2008 for a sum of Rs.4,14,538/ in the name of defendant no.2 the payment of which has been made by defendant no.2. The plaintiff raised the bills for successive months for the month of December 2008 to May 2009 in the name of defendant no.2 and as on date the defendant no.1 and 2 jointly and severally liable to pay a sum of Rs.7,24,661/ towards AMC to the plaintiff. The plaintiff also raised a bill dated 08.11.2008 for a sum of Rs.1,28,485/ in the name of defendant no.1 towards the supply of computer hardware and peripherals.
4. Defendant no.1 also raised a separate order dated 27.12.2008 for supply of hardware pertaining to networking and also for laying of cables, cutting and refilling of floor, rack installation, cement blast and erection work for antenna tower and project management etc. The plaintiff supplied networking hardware for a sum of Rs.7,16,430/ vide CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 3 of 21bill dated 15.01.2009. The plaintiff also raised a bill dated 20.01.2009 in the name of the defendant no.1 towards repair/service charges of HP530 notebook for a sum of Rs.750/ the payment of which has not been made by the defendant to the plaintiff till date. Thereafter plaintiff supplied the cable roll for a sum of Rs.5,800/ each vide bills dated 12.02.2009 and 12.03.2009, the payment of which has not been made by the defendant no.1. Plaintiff has also raised the bill for completion /installation/management of the networking vide bill dated 13.05.2009 for a sum of Rs.1,78,024/ in the name of defendant no.1 which has not been made by the defendants to the plaintiff. Despite reminders from time to time, defendants failed to make the payment of the amount due.
5. A legal notice dated 21.05.2009 was sent to the defendants which was replied by the defendants vide reply dated 22.06.2009. Thereafter plaintiff terminated the AMC contract dated 25.08.2008 and sent a letter dated 03.06.2009 for discontinuance of the AMC services to both the defendants. However, defendants failed to make the payment to the plaintiff. Hence the present suit.
Defendant's Case:
6. Defendant filed its written statement stating that this court does not have the territorial jurisdiction to try and entertain the present suit as the claim of plaintiff has arisen in Greater Noida and the equipments were installed in Greater Noida. It is also submitted that present suit is devoid of cause of action as the plaintiff miserably failed to fulfill its obligations as per the terms and conditions of the CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 4 of 21agreement, causing loss to the defendant institution. The students studying in the institutions suffered on account of failure on the part of the plaintiff to render the maintenance services and the plaintiff committed breach of contract thus has no cause of action against the defendant. It is further stated that the present suit is not maintainable due to misjoinder of causes of action as the plaintiff filed the claim with respect to annual maintenance charges dues from defendant no.2 under the agreement dated 25.08.2008 and claimed recovery of amounts of the alleged sale of hardware under the bills raised on the defendant no.1.
7. It is further stated that present suit claiming joint and several decree with respect to amount against defendant no.1 and 2 is not maintainable. The defendant no.1 is not a party to the contract and the bills for annual maintenance charges have also not been raised on the defendant no.1. All the other averments of the plaint have been denied by the defendants.
8. Plaintiff filed the replication wherein it reiterated its case and controverted the stand taken by defendant in the written statement.
9. From the pleadings of the parties, initially issues were framed in the suit on 16.12.2010 and the same were reframed on 25.09.2020. the issues framed on 25.09.2020 are as under:
1. Whether the plaintiff is entitled to decree for a sum of Rs.12,32,000/ alongwith interest? OPP CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.Page 5 of 21
2. Whether this court has no territorial jurisdiction to try the present suit? OPD
3. Whether the present suit is bad for misjoinder of necessary parties? OPD
4. Whether the present suit is not properly valued for the court fees and jurisdiction? OPD
5. Whether there is any privity of contract between the plaintiff and defendant? OPD
6. Relief.
10. During plaintiff's evidence, plaintiff examined only witness Sh. M.M. Pandey Authorized representative of the plaintiff as PW1 who tendered his affidavit as x.PW1/1 and relied upon the following documents:
1. Ex.PW1/A Certified copy of incorporation.
2.Ex.PW1/B Certified copy of Board Resolution.
3. Ex.PW1/C Quotation dated 20.08.2008.
4. Ex.PW1/D Contract dated 25.08.2008.
5. Ex.PW1/E Statement of account.
6.Ex.PW1/F Bill dated 08.11.2008.
7. Ex.PW1/G Copy of bill dated 20.01.2009.
8. Ex.PW1/H & Ex.PW1/I Bills dated 12.02.2009 and 12.03.2009.
9. Ex.PW1/J Bill dated 13.05.009.CS No.8489/16
M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 6 of 2110. Ex.PW1/K copies of emails dated 26.08.2008, 27.08.2008 and 07.08.2009.
11. Ex.PW1/L Letter dated 18.09.2008.
12. Ex.PW1/M Copy of five tax invoices for AMC charges.
13. Ex.PW1/N Letter dated 30.04.2009.
14. Ex.PW1/O Copy of notice dated 16.09.2008.
15. Ex.PW1/P Legal notice dated 21.05.2009.
16. Ex.PW1/Q UPC receipt.
17. Ex.PW1/R1 and Ex.PW1/R2 Postal receipts.
18. Ex.PW1/S Termination notice dated 03.06.2009.
19. Ex.PW1/T Postal receipts.
20. Ex.PW1/U UPC receipts.
21. Ex.PW1/V AD card of defendant no.2.
22. Ex.PW1/W Reply of the defendant dated 22.06.2009.
11. In defendants evidence, defendant examined Sh. Md. Saphik Ahmad Khan, Lecturer & System Administrator of defendant no.1 as only witness as DW1 who tendered his affidavit as Ex.DW1/1 and relied on Letter of authority dated 16.07.2012 as Ex.DW1/A and Letter dated 21.04.2009 as Ex.DW1/B (Colly).
12. I have heard Ld. counsels for both the parties and have gone through the records carefully. My issue wise findings are as under:
FINDINGS OF THE COURT:CS No.8489/16
M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.Page 7 of 21
Issue no.2. Whether this court has no territorial jurisdiction to try the present suit? OPD
13. The onus to prove this issue was on the defendant. It is stated by the defendant that all the services were rendered by the plaintiff to the defendant no.1 in Greater Noida. The cause of action thus arose in Greater Noida. The defendant has relied upon statement of PW1 during crossexamination that : "It is correct that equipments under the agreement were to be installed in Noida".
14. Per contra, it is stated by the plaintiff that the contract Ex.PW1/D was executed in Delhi and it is specifically mentioned in the said agreement that all disputes will be subject to Delhi Jurisdiction only. Representative of the defendant signed the said agreement after reading the terms and conditions and agreed to the same. Hence, the Delhi Court has the requisite jurisdiction to decide the present case.
15. As per section 9 of the CPC: "All courts have jurisdiction to try all suits of civil nature unless the jurisdiction is either expressly or impliedly barred." Section 20 of CPC further laid down that a suit may be instituted either where the defendant ordinarily resides or carries on business or any part of the contract arisen. Section 20 thus makes it clear that more than one court can have the jurisdiction to try the suit when the cause of action arises at different places. In the present case, the parties to the contract have enunciated a place of jurisdiction by choice of both the parties. Section 23 of the Indian Contract Act 1872 mandates that there cannot be a contract which is forbidden by or CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 8 of 21defeats any provision of law. Section 28 makes a restrain on legal recourse or ability to enforce rights under a contract, void. A conjoint reading of Section 20 of CPC and 22 and 28 of the Contract Act there is a scope for a partial restriction by limiting parties recourse to one forum. The exclusive jurisdiction clause in the contract occupy this space between an absolute restrain and convenience based place of jurisdiction.
In Hakam Singh v. Gammon (India) Ltd [1971 SCR (3) 314], the contractual validity of choice of forum clauses was discussed. In that case, the Petitioner approached the Court of the Subordinate Judge at Varanasi for an order referring the parties to the arbitration. The contract between the parties had a stipulation that the Courts of Mumbai alone will have jurisdiction. The trial court concluded that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the Courts at Bombay, which they did not otherwise possess. While dealing with this case, the Supreme Court stated that when two courts had the jurisdiction to entertain a dispute, a choice of one by agreement, would not amount to restraint of legal proceedings, or violate public policy, under Sections 28 and 23 of the Contract Act respectively. However, the parties could not, by agreement confer jurisdiction on a court that would otherwise not have jurisdiction in law to adjudicate the dispute in question. This position has been affirmed in subsequent decisions of the Supreme Court.
CS No.8489/16M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 9 of 21In A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem [1989 SCR (2) 1] the contract between the parties stipulated that the Courts of Kaira will have jurisdiction to try disputes arising from the contract. The Plaintiff instituted a suit for money recovery in the Court at Salem. The Madras High Court upheld the concurrent jurisdiction vested in the Salem Court since the contract was partly performed in Salem. The division bench of the Supreme Court in Special Leave to Appeal, stated that as regards construction of the ouster clause when words like 'alone', 'only ', 'exclusive' and the like have been used there may be no difficulty in construing the ouster, unless it is found that there is no consensus ad idem. However, implied exclusion of other jurisdictions in the absence of such terms would have to be inferred from the facts and circumstances of the case and would not be automatic. The Court went on to hold that jurisdictions other than Kaira, having a connection with the contract were not excluded by the use of specific words and the general terms of the contract also do not indicate exclusion of other jurisdictions. Despite observing that the clause was valid and enforceable, the Court pierced through the clause and determined that the Salem Court had jurisdiction. Hence after ABC Laminart, courts were required to conduct a factual inquiry regarding the implied exclusion of a court's jurisdiction. It provided substantial leeway to the party seeking to deviate from an exclusive jurisdiction clause.
In Swastik Gas (M/S Swastik Gases Pvt. Ltd v. Indian Oil CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 10 of 21Corp.Ltd [(2013) 9 SCC 32], the Supreme Court provided much needed clarity by stating that "... the absence of words like "alone", "only", "exclusive" or "exclusive jurisdiction" is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The threejudge bench held that the very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. The judgment also noted that the principle of Expressio unius est exclusio alterius (expression of one is an exclusion of the other) would be applicable to such cases. It was observed that "where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts."
In Shridhar Vyapar v. Gammon India GA 44 of 2018, the Calcutta High Court was dealing with a suit for realization of dues in respect of invoices raised. The invoices contained a stipulation that the disputes shall be decided by Courts of Raipur and Nagpur respectively. The Calcutta High Court held that "parties can be bound to an agreement containing a clause conferring exclusive jurisdiction on certain courts, if by their conduct subsequent to such selection, it can be shown that the parties intended to give effect to the contract. The exception being where despite such a clause and a consensus to act by it, the cause of action arose wholly and overwhelmingly in CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 11 of 21another jurisdiction and second, it would be oppressive to drag the parties to their chosen forum having regard to other factors." Based on these observations, the Calcutta High Court concluded that the party challenging the exclusive jurisdiction clause failed to show how the contractually selected forum would be inconvenient or oppressive. The court enforced the exclusive jurisdiction clause."
16. In view of the aforesaid discussions, execution of the agreement Ex.PW1/D is not disputed by the defendants. Execution of agreement in Delhi is also not denied. It is not the case of the defendant that the agreement was signed owing to some undue influence. Moreover, the services were provided by the plaintiff from Delhi to the defendant. Accordingly, it cannot be said that this court lacks jurisdiction to try the present matter. Issue is accordingly decided against the defendants.
Issue no.3 :Whether the present suit is bad for misjoinder of necessary parties? OPD.
Issue no.5.Whether there is any privity of contract between the plaintiff and defendant? OPD
17. The onus to prove this issue was on the defendant. It is claimed by the defendant that there is no contract or business transaction between plaintiff and defendant no.2. The contract has not been signed by any representative of defendant no.1. Defendant no.1 and 2 are two separate legal entities. Hence the plaintiff could not have CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 12 of 21raised any claim against defendant no.2.
18. The defendant has relied upon statement of PW1 during examination that: "It is correct that equipment under the agreement was to be installed in Noida. It is correct that there was no separate agreement for supplying the items not covered under the maintenance agreement."
19. The plaintiff relied upon agreement Ex.PW1/D which is an admitted document "This contract between Sysnet Global Technologies Pvt. Ltd. D47, Okhla, Industrial Area, PhaseI, New Delhi and Smt. Shakuntala Educational and Welfare Society, Prakash Apartment, Ansari Road, Dariyaganj, Delhi running Galgotia institute at Greater Noida. The agreement was entered into between plaintiff and defendant no.2 and signed by representative of defendants. Tax invoices were raised by the plaintiff in the name of both defendant no.1 and 2. It is admitted by DW1 "I say and submit that defendant no.1 college is being run by defendant no.2 and Mr. Sunil Galgotia is the president of Smt. Shakuntala Educational and Welfare Society. The plaintiff in support of its arguments relied upon judgment of Hon'bel Apex court in Mrs. Hema Khattar & Anr. Vs. Shiv Kherea Civil appeal no.8837/16 and Prem Lata Nahata & Anr. Vs. Chandi Prasad Sikaria.
20. Admittedly, the agreement Ex.PW1/D is entered into between plaintiff and defendant no.2. Even in the reply to the legal notice of the plaintiff of the defendants dated 22.06.2009 Ex.PW1/W it CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 13 of 21is stated that "Our clients entered into an agreement dated 25.08.2008". The said reply was filed by counsel for defendant no.1 and 2 on their behalf and it is admitted in the said reply that the agreement Ex.PW1/D was entered into between plaintiff and both the defendants. PW1 in his evidentiary affidavit in paragraph no.11 stated that agreement dated 25.08.2008 was signed by defendant no.1 through its professor Dr. V S B Durbha and on behalf of defendant no.2. In crossexamination a suggestion was given to PW1 that defendant no.1 is not a party to the agreement Ex.PW1/D. Further "It is incorrect to suggest that Defendant no.1 has not availed any services from the plaintiff".There is no question or suggestion to PW1 denying the fact that the agreement was signed by Dr. V.S.B. Durbha of defendant no.1 on behalf of defendant no.1 and defendant no.2.
21. From the crossexamination of PW1 it appears that the stand of the defendants was that there was no privity of contract between plaintiff and defendant no.1. It is claimed by the defendant in the written statement that the plaintiff has filed the alleged claim with respect to Annual Maintenance charges due from defendant no.2 and also for recovery of sale of hardware from defendant no.1. Further it is stated that defendant no.1 is not a party to the contract between the parties and the bills for Annual Maintenance charges have also not been raised on defendant no.1. Accordingly, no decree can be passed against both the defendants, first for misjoinder of parties and secondly due to lack of privity of contract between plaintiff and defendants.
CS No.8489/16M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 14 of 2122. In the written statement as well as from the line of cross examination, it is the claim of the defendant that the contract was between plaintiff and defendant no.2 where as from the arguments addressed in the court and also from the written submissions filed, it is the stand of defendant that there was no privity of contract between plaintiff and defendant no.2. Since the contract has only been signed by representative of defendant no.1.
23. Admittedly, the contract Ex.PW1/D is between plaintiff and defendant no.2 the same is signed by representative of defendant no.1 and as per the plaintiff the same was signed by representative of defendant no.1 on behalf of both the defendants. The said claim is not denied by the defendant during crossexamination accordingly the statement of PW1 to that extent remains unrebutted and uncontroverted. Further in reply to legal notice of defendant, it is admitted by defendant no.1 that agreement was signed by both the defendants. It is admitted by witness of defendant that defendant no.1 was being run by defendant no.2 on whose behalf the agreement was signed with the plaintiff. It is claimed by the plaintiff during the course of transaction between the parties the invoices were raised both in the name of defendant no.1 and defendant no.2 as agreed and the payments were made. The said fact is not denied by the defendants. The defendants have thus failed to prove that the suit is bad for misjoinder of parties or that there was no privity of contract between plaintiff and defendant no.2. both issue no.3 and 5 are decided against the CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 15 of 21defendants.
Issue no.4.Whether the present suit is not properly valued for the court fees and jurisdiction? OPD
24. The onus to prove this issue was on the defendants. It is claimed by the defendant that suit is not properly valued for the purposes of jurisdiction. No evidence has been led by the defendant to prove the same. However, the plaintiff has given a detailed account of the valuation in para 24 of the plaint and has raised a claim of Rs.12,32,000/ for which the requisite court fees has been paid. The court fees has been paid as per Court fee Act and there appears no discrepancy in so far as the valuation of the suit is concerned or payment of court fee concerned. Hence this issue is decided against the defendants.
Issue no.1 Whether the plaintiff is entitled to decree for a sum of Rs.12,32,000/ alongwith interest? OPP
25. The onus to prove this issue was on the plaintiff. The plaintiff has relied on agreement dated 25.08.2008 Ex.PW1/D between plaintiff and defendants for providing services to the defendants for computer alongwith supply of hardware pertaining to computers. In compliance of the terms of the contract, the bills for AMC were raised on defendant no.2 and the bills for supply of hardware pertaining to networking were raised on defendant no.1. From time to time as per CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 16 of 21the understanding between the parties. Some of the bills were cleared by the defendants, however, the payment of AMC charges from December 2008 to May 2009, amount of sale of hardware, notebook prepared charges, amount of two cable rolls and amount of laying installation/project management charges still stand unpaid to the tune of Rs.10,43,520/. The said amount is due pertaining to bills dated 08.11.2008, 12.02.2009 and 13.05.2009.
26. The defendants have denied their liability by stating that the bills are not due as the plaintiff has failed to fulfill its obligations under the said agreement. Secondly the defendant no.2 has not availed the services of plaintiff. Thirdly, the bills raised on defendant no.1 are with respect to items covered under the annual maintenance contract and fourthly defendant no.1 and 2 cannot be held liable jointly and severally for annual maintenance charges and for supply of material.
27. In order to understand the arrangement between the parties contract Ex.PW1/D is relevant. It was agreed between plaintiff and defendants that both preventive and corrective maintenance would provide by the plaintiff for which the engineer of the plaintiff would be stationed at defendant no.1 i.e. Galgotia Institute Greater Noida. Defendant no.1 was provided a right to change the engineers if his service quality was not satisfactory. Plaintiff was to provide services for maintenance of the equipments installed at the defendant no.1 premises as per clause 7 all defective part/equipment replaced shall become the property of Sysnet Global Technologies. As per clause 9 CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 17 of 21"The parts of equipment found to be defective and not covered under AMC and shall be repaired or replaced by Sysnet Global Technologies on cost basis. The items are batteries toners, cartridges, fuser units and plastic parts of printer or any party which is treated as consumable etc. Clause 10 for goods taken under AMC no charge shall be levied on the part of Sysnet Global Technologies get the defected part repaired free of charge. In case the part cannot be repaired, the defective would be replaced with a new working part of same brand or equivalent. In case of deviation Sysnet Global Technologies is required a written approval from Galgotia Institute. Clause 18 provide for payment, "payment will be made in advance for 3 months at the beginning of contract. Thereafter after expiry of 2 months, it will be made on monthly basis in advance.
28. PW1 in para 12 to 21 mentioned about various invoices raised upon the defendants and regarding the payment received against the bills and also about the bills on account of which the payment is still outstanding. The receipt of the aforesaid bills is not denied by the defendants as there is no suggestion to PW1 that the invoices were not received by the defendants. It is suggested by defendant counsel to PW1 that the complaints were not attended by the plaintiff within the time as agreed. There was a specific clause in contract Ex.PW1/D that the defendants will have a right to request for change of engineers. The defendants have not filed any document to show the dissatisfaction against the engineers appointed by plaintiff at defendant no.1 college.
CS No.8489/16M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 18 of 2129. The stand taken by the defendants with regard to payment of outstanding payment is that the plaintiff has failed to fulfill its obligations. The defendants were specifically provided a right to communicate to the plaintiff if it was dissatisfied with the services provided by plaintiff. There is no communication brought on record by the defendant to show that it was dissatisfied with the services of the plaintiff. Moreover, the defendants have not elaborated as to which obligations were not fulfilled by the plaintiff. Secondly it is stated that the defendant no.1 has not availed the services from the plaintiff. Accordingly the bill raised upon defendant no.1 cannot be claimed. This objection it has already been discussed in the preceding paragraphs and it is being reiterated that the contract was signed by the representative of defendant no.1, accordingly it cannot be said that the defendant no.1 was not the party to the contract. In so far as availing the services, the defendant have taken contrary stand on one hand it is stated that services were not availed by the defendant no.1 on the other hand it is stated that the bills raised by the plaintiffs are with respect to the items covered under the AMC. In case services were not rendered to defendant no.1 then to whom the services were rendered stands unexplained. Admittedly, the services if any under the AMC were to be provided at the premises of defendant no.1 and hence the contract was entered between plaintiff and defendant no.2. The contract was also signed by representative of defendant no.1. Now the defendant cannot take this stand that no services were availed by defendant no.1.
CS No.8489/16M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 19 of 2130. In so far as the bills with respect to the items is concerned, the perusal of same would reveal that they pertain to the consumables which were to be separately paid by the defendants in view of the contract Ex.PW1/D. Defendants in their written arguments have taken an altogether different stand about non receipt of bills and the bills without a purchase order reference and the non payment of taxes by the plaintiff. In so far these grounds have concerned, the same have neither been pleaded by the defendant nor have been put to PW1 in his cross examination. The defendants have tried to take contrary stands although in order to defeat the claim of the plaintiff. The plaintiff has relied upon invoices clearly showing the items for which the same have been raised. The defendants have failed to point out any item which is not covered by the contract to be separately charged by the plaintiff. On the contrary the plaintiff has relied upon para 9, 14 and 15 on the basis of which the claim has been raised. The plaintiff has thus proved its claim against the defendants. This issue is accordingly decided in favour of plaintiff.
31. In so far as the interest is concerned, though it is not specifically mentioned in the contract that the interest shall be payable but the same is mentioned in tax invoices which is @2% per month. The tax invoice has been raised by the plaintiff in which the defendant has no say. Hence it cannot be said that there was any agreed rate of interest to be paid by the defendant on non payment. However keeping in mind the nature of transaction and the fact the payment stands CS No.8489/16 M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
Page 20 of 21unpaid for several years, plaintiff is entitled to interest @ 12% per annum from 03.06.2009 till the filing of the suit i.e. 15.01.2010 and the @9% from filing of the suit till its realized.
Relief:
32. In view of the aforesaid discussion, the suit of the plaintiff is decreed in favour of plaintiff and against the defendants for a sum of Rs.10,43,520/ alongwith interest @ 12% per annum from 03.06.2009 till the filing of the suit i.e. 15.01.2010 and the @9% from filing of the suit till its realized. Costs of the suit are also awarded in favour of plaintiff. Both the defendants have jointly and severally liable to pay the decreetal amount. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced through Video Conferencing on CISCO Webex on 11.01.2021.
Digitally
signed by (Pooja Talwar)
POOJA Additional District Judge01,
POOJA TALWAR
(South) Saket District Courts,
TALWAR Date:
2021.01.15 New Delhi
13:23:06
+0530
CS No.8489/16
M/s. Sysnet Global Technologies Pvt. Ltd. Vs. M/s. Galgotia College of Engineering & Technologies & Anr.
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