Delhi District Court
M/S D.M. Systems (P) Ltd vs M/S Intelligent Communication Systems ... on 30 July, 2014
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 1/14
M/s D.M. Systems (P) Ltd.
at B11, Shivalik, New Delhi 110017
.......... Plaintiff
Versus
M/s Intelligent Communication Systems India Ltd.
Administrative Building, 1st Floor, Above Post Office,
Okhla Industrial Estate, PhaseIII,
New Delhi - 110020
......... Defendant
Suit for recovery of Rs. 19,75,518/ (Rupees Nineteen Lakh
Seventy Five Thousand Five Hundred Eighteen only)
(a) Date of institution : 02.01.2014
(b) Date when judgment reserved : 30.07.2014
(c) Date of Judgment : 30.07.2014
EXPARTE JUDGMENT:
1.Vide this judgment I shall dispose of the present suit filed by the plaintiff for recovery of Rs.19,75,518/ alongwith pendente lite and future interest @ 36% per annum from the date of filing of the suit till the realization of the amount.
CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 1 of 9
2. Briefly stated the facts of the present case are that plaintiff is a company registered under Companies Act, 1956 having its registered office at 37/1256, DDA Flats, Ambedkar Nagar, New Delhi. Mr. Devender Kumar Bajaj, one of the director of the plaintiff company is authorized representative of the plaintiff company, who is duly authorized to file the present suit and is fully conversant with the facts of the present case. The plaintiff company deals in IT Solutions, Hardware and AMC Services. Defendant company approached the plaintiff for supply of Operating System RHEL Version 5.2 (12 Sockets) (upto 1 guest) (Premium Support with upgrade & updates for one year), 24X7 support for one year (Qty 25) for the value of Rs. 17,58,875/. As per the said order, payment equal to 80% of the total work order was to be released on back to back basis and that too after complete delivery and installation of all items and balance 20% was to be released on back to back basis i.e. after receipt of payment from the client department but not later than three months of delivery and installation. The defendant issued a purchase order in favour of plaintiff bearing No. F.1(ICSIL)/01/212/Inds eBiz/201314/207 dated 26.04.2013. Under the said work order, goods were to be delivered and installed upto 30.04.2013, while the said work order is of date 26.04.2013 which shows that delivery and installation of said software was very urgent.
CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 2 of 9
3. It is stated that seeing the urgency, the said software was purchased by the plaintiff for defendant only and elicense has been generated on the customer details given in the purchase order and delivered on 30.04.2013. As per instruction of defendant, the plaintiff sent its person to deliver the elicense to end customer, but they denied to accept the same stating that they have not released any such purchase order. Thereafter, staff of the plaintiff tried to deliver the material to the defendant but even the staff of the defendant were not accepting the delivery of said software initially. After due efforts, the delivery of said software was handed over to the defendant. The plaintiff raised an Invoice dated 30.04.2014 on defendant for Rs. 17,58,875/ for the material supplied and delivered to the defendant, but after passing of more than seven months from the delivery, the payment was not made by the defendant. It was informed to the plaintiff that the said software was purchased by defendant for some other company/office, but the defendant had not received its work order by that time from the said company. It is stated that plaintiff has delivered the software within the time limit of the work order and therefore plaintiff is entitled to get the bill/invoice amount from the defendant. The plaintiff has further claimed that as per the agreement between the parties, the defendant is also liable to pay interest @ 36% p.a. on delayed payment and thus the defendant is CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 3 of 9 liable to pay a sum of Rs. 17,58,875/ i.e. the amount under unpaid bill and Rs. 2,16,643/ i.e the amount of interest charged w.e.f. 01.08.2013 to 30.11.2013, totaling to Rs. 19,75,518/. It is stated that plaintiff has been requesting the defendant to release the payment but the defendant failed to pay the same despite number of letters/mails in this regard. Hence, the present suit.
4. The plaintiff has prayed for passing a decree in its favour and against the defendant for a sum of Rs. 19,75,518/ along with pendente lite and future interest @ 36% from the date of institution of the suit till realization of the decreetal amount.
5. The summons of the suit were directed to be issued to the defendant. The defendant was duly served with the summons on 23.01.2014, but despite service the defendant failed to appear in the court and accordingly was proceeded exparte vide order dated 26.04.2014.
6. Thereafter, in order to prove its case the plaintiff examined one of its director Sh. D.K. Bajaj as PW1, who filed his evidence by way of affidavit which is Ex. PW1/A, wherein he reiterated the averments made in the plaint. During his deposition, he has also placed on record the copy of certificate of incorporation along with copy of Memorandum & Article of Association of the company as Ex. PW1/1, copy of board resolution dated 12.11.2013 as Ex. CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 4 of 9 PW1/2, purchase order dated 26.04.2013 issued by the defendant as Ex. PW1/3, email sent on 30.04.2013 by plaintiff company to defendant company as Ex. PW1/4, invoice dated 30.04.2013 raised by plaintiff on defendant for Rs. 17,58,875/ as Ex. PW1/5, letter dated 02.05.2013 sent to the defendant confirming supply as Ex. PW1/6, letter dated 26.06.2013 sent to the defendant asking to make the payment as Ex. PW1/7, letter dated 11.11.2013 demanding due amount from the defendant as Ex. PW1/8, subscription certificate from Red Hat, the company from which the material was procured by the plaintiff as Ex. PW1/9, letter dated 24.12.2013 sent by the defendant as Ex. PW1/10, statement of account showing amount to be paid by the defendant including interest as Ex. PW1/11, copy of legal notice dated 30.11.2013 as Ex. PW1/12 and postal receipt as Ex. PW1/13.
7. I have heard the Ld. Counsel for the plaintiff and perused the record carefully.
8. The plaintiff by way of present suit is seeking recovery of Rs. 19,75,518/ from the defendant stating that it has supplied software to the defendant worth Rs. 17,58,875/ pursuant to the purchase order placed by the defendant, but despite receiving the software and accepting the invoice of Rs. 17,58,875/ raised by the plaintiff, the defendant failed to make the payment of the invoice amount as well as interest thereon totaling to Rs. 19,75,518/.
CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 5 of 9
9. In order to prove its case, the plaintiff has examined its principal officer Sh. D.K. Bajaj as PW1 who in his evidence has deposed as per the averments made in the plaint and has placed on record the relevant documents. The testimony of PW1 has gone un rebutted and unchallenged as the defendant chose not to contest the case and therefore there is no reason to disbelieve the testimony of PW1.
10. From the unrebutted and unchallanged testimony of PW1 and the documents placed on record by him, it stands proved vide Ex. PW1/1 that plaintiff is a private limited company and deals in IT Solutions Hardware & AMC Services. PW1 Sh. D.K. Bajaj, who is one of the Director and principle officer of the plaintiff company has been duly authorized by the plaintiff company vide board of resolution Ex. PW1/2 to file the present suit on behalf of the plaintiff company. It further stands proved vide Ex. PW1/3 that defendant placed a purchase order with the plaintiff company for supply of Operating System - RHEL Version 5.2, a Red Hat product. As per the purchase order Ex. PW1/3, the software was to be delivered and installed upto 30.04.2013 and payment upto 80% of the total work order was to be released after complete delivery and installation of all items and balance 20% was to be released after receipt of payment from the client department. Pursuant to the purchase order Ex. PW1/3, CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 6 of 9 the plaintiff purchased the software only for defendant and in this regard subscription certificate Ex. PW1/9 has also been issued by Red Hat company. The plaintiff delivered the software to the defendant within time and accordingly raised invoice Ex. PW1/5 for Rs. 17,58,875/ upon the defendant. So far the installation of software is concerned, PW1 has categorically stated in his evidence that software is a support pack for RHEL Version and hence there is no installation required. As stated above testimony of PW1 has gone un rebutted, the aforesaid statement of PW1 cannot be disbelieved.
11. The aforesaid invoice Ex. PW1/5 raised by the plaintiff for Rs. 17,58,875/ upon the defendant for supply of the software was duly received by one Ms. Deepika, PS to MD of defendant company on 02.05.2013 which is evident from invoice Ex. PW1/5. The supply of software was also confirmed by the defendant vide its letter Ex. PW1/10. It also stands proved that plaintiff has been asking for payment of amount vide its letters Ex. PW1/7 & Ex. PW1/8, but the defendants have failed to make the payment. Ultimately, the plaintiff vide legal notice Ex.PW1/12 called upon the defendant to pay the outstanding amount of Rs. 17,58,875/ due against the defendant along with interest, which was sent to the defendant vide postal receipt Ex. PW1/13, but the defendant failed to respond to the said legal notice and also failed to discharge its legal liability to pay the aforesaid CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 7 of 9 amount to the plaintiff.
12. In view of above, it stands duly proved that software was duly received by the defendant for which invoice Ex. PW1/5 was raised by the plaintiff for Rs. 17,58,875/ which was duly accepted by the defendant. Hence, the plaintiff is entitled to recover the invoice amount of Rs. 17,58,875/ from the defendant.
13. The plaintiff has also claimed interest on delayed payment @ 36% p.a. w.e.f. 01.08.2013 to 30.11.2013 amounting to Rs. 2,16,643/ stating that it was agreed between the plaintiff and the defendant that the defendant would pay interest @ 36 % per annum on delayed payments. Though, as per the bill/invoice Ex. PW1/5, there is stipulation regarding the payment of interest @ 36% p.a. on delayed payments, but the interest claimed by the plaintiff @ 36% p.a. seems to be on much higher side. The plaintiff has not placed on record anything to show that interest @ 36 % p.a. is the prevailing market rate. In the absence of same, the plaintiff cannot be awarded interest at such an exorbitant rate and it would meet the ends of justice if the plaintiff is awarded interest @ 12% p.a. on the principal amount of Rs. 17,58,875/ w.e.f. 01.08.2013 till the date of filing of the suit i.e. 02.01.2014. Keeping in view the commercial transaction between the parties, the plaintiff is also awarded pendente lite and future interest @ 12% p.a. from the date of institution of the suit till realization of the CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 8 of 9 decreetal amount.
14. Accordingly, the suit of the plaintiff is decreed for a sum of Rs. 17,58,875/ alongwith interest @ 12% p.a. w.e.f. 01.08.2013 to 02.01.2014 and pendente lite and future interest @ 12% p.a. from the date of filing of the suit till realization of the decreetal amount. The plaintiff is also entitled to cost of the suit. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court (Balwant Rai Bansal)
on 30th July, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 1/14
M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 9 of 9
CS No. 1/14
M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd.
30.07.2014 Present: Counsel for the plaintiff.
Exparte final arguments heard. Put up at 4.00 PM for orders.
(Balwant Rai Bansal)
ADJ02/SE/Saket/New Delhi
30.07.2014
At 4.00 PM
Present: None.
Vide my separate judgment of even date, the suit of the plaintiff is decreed. Decree sheet be prepared in terms of the judgment.
File be consigned to record room.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 30.07.2014 CS No. 1/14 M/s D.M. Systems (P) Ltd. Vs. M/s Intelligent Communication Systems India Ltd. Page 10 of 9