Delhi District Court
Minosha India Ltd vs M/S National Tele Links on 30 March, 2024
IN THE COURT OF MS NEELAM SINGH,
DISTRICT JUDGE (COMMERCIAL)-02, SOUTH-EAST,
SAKET COURTS, NEW DELHI
CS DJ-966/2019
In the matter of:
Minosha India Limited,
Having its registered address:
Unit Number 204, 2nd Floor, Town Centre-I Building,
Andheri Kurla Road, Sakinaka,
Andheri (E) Mumbai-400059 ........ Plaintiff
Versus
M/s National Tele Links
Through Mr. Vikas Anandrao Nyayadish
Sole Proprietor
B1-B2, Indraprastha
Aurangpura, Aurangabad
Maharashtra-431001
Also At:
Plot No.18, Shopping Complex,
Near Malus Commerce Classes
Samarth Nagar
Aurangabad, Maharashtra-431003 ......Defendant
Date of institution of suit : 01.11.2019
Judgment reserved on : 30.03.2024
Date of Judgment : 30.03.2024
Final Decision : Decreed
JUDGMENT
1. The Plaintiff has filed the present suit for recovery of Rs. 5,98,723/- (Rupees Five Lakhs Ninety Eight Thousand Seven Hundred and Twenty Three Only) along with pendent- lite and future interest from the defendant.
2.1 It is the case of the plaintiff that plaintiff is a company incorporated under the provisions of the Companies Act, 1956, having its Registered office at Unit no. 1132 Building no 11 Solitair Corporate, Guru Govind Singh Marg, Chakala. Andheri CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 1 of 14
(e) Mumbai 400093 and corporate office at 7th Floor, Tower 'B', Windsor IT Park, A-1, Sector 125 Expressway, Gautam Budh Nagar, Noida, Uttar Pradesh 201301. That the Plaintiff is engaged in the business of manufacturing photocopiers, fax and other office automation equipment and is also engaged in marketing and distribution of photocopiers including digital multifunctional products/printers/copiers/scanners/fax machines, accessories and other consumables and carried out aforesaid activity or activities in India through a network of its own branch offices and dealers appointed by it for such purposes and Sh. Kailash Chandra has been duly authorised Board Resolution dated 20.04.2016 to contest the present suit on behalf of plaintiff.
2.2 That the defendant M/s National Tele Links is a proprietorship firm having Mr. Vikas Anandrao Nyayadish as its Proprietor, and has its registered office at H.No. 728/16 Bafanabag, B Chendhare Alibag District Raigad, 402201. In and around 2014, the defendant approached the Plaintiff Company and expressed its desire to become an authorised dealer of the Plaintiff Company for the purpose of promoting sales of machines and providing service support thereof in the territorial region of Raigarh District.
2.3 That after detailed discussions and negotiations and based upon the representations and assurances of the defendant, the Plaintiff and Defendant entered into a Dealer Sales and Service Agreement dated 02.11.2016 by way of which the Defendant was appointed as a non-exclusive dealer of the Plaintiff's products/machines for the Territory. That as per the terms of the Agreement, the Defendant had to procure orders for the CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 2 of 14 machines/products being manufactured by the Plaintiff Company and had to provide after sales service of such products and machines to the customers of the Plaintiff in Raigarh. The Defendant would raise purchase orders upon the Plaintiff detailing the products and the quantities required and against the same, the Plaintiff would supply its machines/products and resultantly raise invoices upon the Defendant. 2.4 That as per clause 3.2 of the Agreement, the Plaintiff in its absolute discretion could sell the machines/products directly to the Defendant on a principal-to-principal basis so as to enable it to directly sell the products/machines to the customers. Similarly, the Plaintiff could also sell the machines/products to its customers in Raigarh directly.
2.5 That the Defendant had placed a purchase order bearing no. NTL/MFP/SEP/03 for supply of 51 digital photocopier's machine for an amount of Rs. 14,85.677/- (Fourteen lakhs eighty five thousand six hundred and seventy seven only) and on the basis of the aforesaid purchase order, the Plaintiff raised a sale order bearing no. 207659 in the name of the Defendant and subsequently raised an invoice bearing no. 93118416 dated 29.10.2016 for an amount of Rs. 14.85,676.92/- (Fourteen lakhs eighty five thousand six hundred and seventy six and ninety two paise only). That the defendant has duly admitted the receiving of the aforesaid sale order as well as the invoice. That it was explicitly mentioned in the invoice that the payment had to be made as per the terms of the sale order failing which an interest of 24% was to be levied over and above the principle amount. 2.6 That after elapse of reasonable amount of time and when no payment towards the invoice amount was forthcoming from the CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 3 of 14 Defendant, the plaintiff sent various reminders. On many occasions, the Defendant kept reassuring the Plaintiff that he will pay the outstanding amount by NEFT. However, despite several requests and reminders, the Defendant blatantly failed to clear the outstanding payment of Rs. 14,88,676/- (Rupees Fourteen Lakh Eighty Eight Thousand Six Hundred and Seventy Six Only).
2.7 That after several reposted reminders, the Defendant handed over to the plaintiff a cheque beaming No. 081703 dated 31.03.2017 for amount of Rs 14,88.676/- towards the repayment of the aforementioned outstanding. However, before depositing the said cheque for encashment, the Plaintiff first sent an intimation to the Defendant by way of an email dated 31.03.2017 thereby clearly intimating the Defendant that on account of its failure to pay the outstanding amount, it will be depositing the aforesaid cheque to recover its outstanding amount. However, to the utter shock and awe of the Plaintiff, the aforesaid cheque bounced for the reason "Payment stopped by Drawer. Thereafter, the Plaintiff issued a legal notice under Section 138 of the Negotiable Instruments Act, 1881 (NI Act") to the defendant for dishonoring of the aforesaid cheque. The said notice was duly received by the Defendant. 2.8 Thereafter, the Plaintiff sent an email dated 12.04.2017 to the defendant, thereby intimating the Defendant about bouncing of aforesaid cheque and issuance of the aforesaid notice under section 138 N I Act. That the Defendant once again reassured that it will pay the outstanding amount for the machines/products provided to it by the Plaintiff. However, the Defendant had made a payment of only Rs.5,00,000/- (Rupees CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 4 of 14 five lakhs only) out of the total outstanding of Rs. 14,88.676/- (Fourteen lakhs eighty eight thousand six hundred and seventy six only). Hence, an amount of Rs. 8,41,776/- (Eight lakh forty one thousand seven hundred and seventy six only) was still due and payable to the Plaintiff by the defendant which after adjustment of Tax deducted at source (TDS) and commission payable to the Defendant amounts to Rs. 5,98,723/-. 2.9 Thereafter, against the admitted amount of Rs. 5,98,723/-, the Defendant again had handed over a cheque bearing no. 981704 dated 04.04.2018 to the plaintiff which again when presented to the banker was dishonored. Thereafter, the Plaintiff once again sent a notice under section 138 of the NI Act to the Defendant thereby demanding the payment of outstanding amount. Thereafter, again the Plaintiff sent an email dated 14.05.2018 clearly intimating to the Defendant about the bouncing of the aforesaid cheque and the consequent notice. In response thereto, the Defendant sent an email dated 22.05.2018 wherein while admitting its liability, the Defendant informed that its Proprietor Mr. Vikas Nyayadhish is on complete bed rest on account of a heart attack and that the issue of outstanding amount of the Plaintiff will be duly looked into once Mr. Vikas Nyayadhish resumes office.
2.10 Thereafter, the issue of outstanding amount due and payable by the Defendant was discussed and deliberated between the Plaintiff and the Defendant through exchange of various correspondence. However, even after receipt of numerous legal notices and communications, the Defendant miserably failed to adhere to its contractual ability as admitted by it in various communications and not clear the outstanding CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 5 of 14 amount. As per statement of account an amount of Rs. 5,98,723/- is still due and outstanding against the defendant. Hence, the present suit.
3. Summons of the suit were ordered to be issued upon the defendant on 01.11.2019 by Ld. ADJ-07 and on 19.02.2021, defendant had filed its appearance through its counsel. Thereafter, defendant had digitally filed leave to defend application alongwith an application for condonation of delay due to outbreak of COVID-19 and matter was listed for arguments on both the abovesaid application. However, vide order dated 25.07.2022, in terms of orders of Ld. Principal District & Sessions Judge, the present matter has been transferred to the commercial court as the present suit was commercial in nature.
Perusal of record shows that the present suit has been filed as a summary suit under the provisions of order 37 CPC on 01.11.2019. Vide order dated 16.01.2023, Ld. Predecessor of this court has granted leave to the defendant with further directions to file the WS within 30 days from the date of order i.e. 16.01.2023 but no WS has been filed by the defendant even giving a number of opportunities to the defendant and vide order dated 03.11.2023, the WS filed on behalf of defendant was taken off the record in the light of judgment passed in the binding judgment of Hon'ble Supreme Court of India, passed in Civil Appeal No. 1638/2019, in case titled as "M/s SCG Contracts India Pvt Ltd. Vs. K.S Chamankar Infrastructure Pvt Ltd. & Ors.", and thereafter, matter was fixed for plaintiff's evidence.
4. Plaintiff in order to substantiate its claim has filed evidence by way of affidavit and examined Sh. Kailash Chandra CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 6 of 14 as PW-1 who tendered his evidence by way of affidavit Ex.PW1/15 and proved the following documents:-
1. Certified copy of Board Resolution dated 19.04.2016 is is de- exhibited as Ex. PW1/2 and marked as Mark-A.
2. Copy of the Dealer sales and service agreement dated 02.11.2016 is de-exhibited as Ex. PW1/2 and marked as Mark- B.
3. Copy of the purchase order bearing no. NTL/MFP/SEP/03 dated 27.09.2016 is de-exhibited as Ex. PW1/3 and marked as Mark-C.
4. Copy of the sale order bearing no. 207659 is de-exhibited as Ex. PW1/4 and marked as Mark-D.
5. Copy of the invoice bearing no. 93118416 dated 21.10.2016 is de-exhibited as Ex. PW1/5 and marked as Mark-E.
6. Copy of e-mail dated 31.03.2017 sent by the plaintiff to the defendant is Ex. PW1/6.
7. Copy of the cheque bearing no. 981704 dated 04.04.2018 is de-exhibited as Ex. PW1/7 and marked as Mark-F.
8. Copy of the return memos dated 10.05.2018 and 22.06.2013 is de-exhibited as Ex. PW1/8 and marked as Mark-G (Colly).
9. Copy of the legal notices dated 10.05.2018 and 22.06.2018 under Section 138 of the NI Act is de-exhibited as Ex. PW1/9 and marked as Mark-H.
10. Copy of the e-mail dated 14.05.2018 is Ex. PW1/10.
11. Copy of the e-mail dated 22.05.2018 is Ex. PW1/11.
12. Copies of e-mail dated 06.07.2018, 30.03.2018, 24.03.2018, 22.03.2018, 11.01.2018, 03.11.2017, 27.10.2017, 01.06.2017 and 12.04.2017 are Ex. PW1/12 (Colly.).
13. Copy of the plaintiff's statement of account is de-exhibited CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 7 of 14 as Ex. PW1/13 and marked as Mark-I.
14. Certificate u/s 65-B of IEA is Ex. PW1/14.
5. Defendant has preferred review under section 114 and order XLVII of CPC against the order dated 03.11.2023 and the review was dismissed on 18.12.2023. In between defendant was granted opportunity to cross examine the witness on legal points but he was not ready to cross examine the witness on legal points even. Further on 07.12.2023, opportunity was granted to the defendant to cross examine the witness but he has not cross examined the witness thereafter, further opportunity was granted on 13.12.2023 and thereafter, on 18.12.2023 but defendant has not cross examined the witness of plaintiff and thereafter, PE was closed.
6. Thereafter, matter was fixed for final arguments.
Ld. Counsel for the defendant has argued on the legal points by submitting that no money has been owned by the plaintiff towards the defendant as in para 15 of affidavit in chief Ex.PW1/15 plaintiff has explained that their due total outstanding recoverable amount is Rs. 14,88,678/-, out of which Rs. 5,00,000/- was paid by defendant and thereafter, as per the plaintiff, the recoverable due amount is Rs. 8,41,776/- which is payable. Plaintiff has adjusted the TDS and the final amount which is recovered from the defendant is Rs. 5,98,723/- which is totally wrong as the plaintiff deliberately did not clarify the TDS and commission payable to the defendant. It is further argued that the total amount payable by the defendant towards TDS was Rs. 12,15,261/- and in that case no amount is recoverable from the defendant rather, defendant owes an amount towards the plaintiff. It is submitted that defendant does not owe any kind of CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 8 of 14 amount to the plaintiff. It is further argued that order No. NTL/MFP/SEP/03 dated 27.09.2016 has not been placed by the defendant and signatures on its has been forged and fabricated by the plaintiff. It is further argued that plaintiff and defendant had signed the agreement on 01.12.2016 then howcome plaintiff can raise a bill for 29.10.2016 and 27.09.2016. It is further argued that Ex.PW1/12 are the emails dated 22.03.2016, 24.03.2016 and 30.03.2016 which are contradictory. It is further argued that the purchase orders i.e. Ex.PW1/3 to Ex.PW1/5 are forged and fabricated. It is further argued that the pay order was prepared by the plaintiff and was sent to the defendant on 27.09.2016 to sign the same but the defendant has sent an email dated 28.09.2016 by writing that not to execute the PO. It is submitted that plaintiff has filed the present suit by suppressing all the material facts and hence, the claim of the plaintiff should be dismissed with cost.
7. Per contra, it is argued by Ld. Counsel for the plaintiff that as per the arguments of Ld. Counsel for defendant the issuance of cheque by the defendant for a sum of Rs. 5,98,723/- in discharge of its liability and the fact that on presentation the cheque was dishonoured has not been disputed by the defendant. It is submitted that initially the suit has been filed under order 37 of CPC based on the cheque and invoice in question. It is further submitted by Ld. Counsel for plaintiff that plaintiff gave credit to the defendant for TDS and the commission was only accrual in nature and was not actual as no invoice has been raised by the defendant. It is argued that bouncing of cheque is the main issue in the present case.
8. During the hearing, Ld. Counsel for plaintiff had submitted CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 9 of 14 that the case of the plaintiff stands duly proved by virtue of the unchallenged testimony of AR for Plaintiff Sh. Kailash Chandra and therefore, plaintiff should be granted the decree, as prayed for.
9. After perusing the record of the Court file and considering the submissions of Ld. Counsel for Plaintiff, I find that the suit of the Plaintiff has been filed on 01.11.2019 and is within the prescribed period of limitation. Further, I find that this Court has the territorial jurisdiction to try and adjudicate the present suit as the Dealer Sales and Service Agreement is executed between the parties at Jasola, New Delhi. I have fortified my view with the judgment of Hon'ble Delhi High Court in 'Auto Movers Vs. Luminous Power Technologies Pvt. Ltd., (2021) SCC Online Delhi 4387.
10.1 PW-1 has categorically deposed that the Defendant had placed a purchase order bearing no. NTL/MFP/SEP/03 for supply of 51 digital photocopier's machine for an amount of Rs. 14,85.677/- (Fourteen lakhs eighty five thousand six hundred and seventy seven only) and on the basis of the aforesaid purchase order, the Plaintiff raised a sale order bearing no. 207659 in the name of the Defendant and subsequently raised an invoice bearing no. 93118416 dated 29.10.2016 for an amount of Rs. 14.85,676.92/- (Fourteen lakhs eighty five thousand six hundred and seventy six and ninety two paise only). That the defendant has duly admitted the receiving of the aforesaid sale order as well as the invoice. That it was explicitly mentioned in the invoice that the payment had to be made as per the terms of the sale order failing which an interest of 24% was to be levied over and above the principle amount.
CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 10 of 1410.2 That after elapse of reasonable amount of time and when no payment towards the invoice amount was forthcoming from the Defendant, the plaintiff sent various reminders. On many occasions, the Defendant kept reassuring the Plaintiff that he will pay the outstanding amount by NEFT. However, despite several requests and reminders, the Defendant blatantly failed to clear the outstanding payment of Rs. 14,88,676/- (Rupees Fourteen Lakh Eighty Eight Thousand Six Hundred and Seventy Six Only).
10.3 That after several reposted reminders, the Defendant handed over to the plaintiff a cheque beaming No. 081703 dated 31.03.2017 for amount of Rs 14,88.676/- towards the repayment of the aforementioned outstanding. However, before depositing the said cheque for encashment, the Plaintiff first sent an intimation to the Defendant by way of an email dated 31.03.2017 thereby clearly intimating the Defendant that on account of its failure to pay the outstanding amount, it will be depositing the aforesaid cheque to recover its outstanding amount. However, to the utter shock and awe of the Plaintiff, the aforesaid cheque bounced for the reason "Payment stopped by Drawer. Thereafter, the Plaintiff issued a legal notice under Section 138 of the Negotiable Instruments Act, 1881 (NI Act") to the defendant for dishonoring of the aforesaid cheque. The said notice was duly received by the Defendant. 10.4 Thereafter, the Plaintiff sent an email dated 12.04.2017 to the defendant, thereby intimating the Defendant about bouncing of aforesaid cheque and issuance of the aforesaid notice under section 138 N I Act. That the Defendant once again reassured that it will pay the outstanding amount for CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 11 of 14 the machines/products provided to it by the Plaintiff. However, the Defendant had made a payment of only Rs.5,00,000/- (Rupees five lakhs only) out of the total outstanding of Rs. 14,88.676/- (Fourteen lakhs eighty eight thousand six hundred and seventy six only). Hence, an amount of Rs. 8,41,776/- (Eight lakh forty one thousand seven hundred and seventy six only) was still due and payable to the Plaintiff by the defendant which after adjustment of Tax deducted at source (TDS) and commission payable to the Defendant amounts to Rs. 5,98,723/-. 10.5 Thereafter, against the admitted amount of Rs. 5,98,723/-, the Defendant again had handed over a cheque bearing no. 981704 dated 04.04.2018 to the plaintiff which again when presented to the banker was dishonored. Thereafter, the Plaintiff once again sent a notice under section 138 of the NI Act to the Defendant thereby demanding the payment of outstanding amount. Thereafter, again the Plaintiff sent an email dated 14.05.2018 clearly intimating to the Defendant about the bouncing of the aforesaid cheque and the consequent notice. In response thereto, the Defendant sent an email dated 22.05.2018 wherein while admitting its liability, the Defendant informed that its Proprietor Mr. Vikas Nyayadhish is on complete bed rest on account of a heart attack and that the issue of outstanding amount of the Plaintiff will be duly looked into once Mr. Vikas Nyayadhish resumes office.
10.6 Thereafter, the issue of outstanding amount due and payable by the Defendant was discussed and deliberated between the Plaintiff and the Defendant through exchange of various correspondence. However, even after receipt of numerous legal notices and communications, the Defendant CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 12 of 14 miserably failed to adhere to its contractual ability as admitted by it in various communications and not clear the outstanding amount. As per statement of account an amount of Rs. 5,98,723/- is still due and outstanding against the defendant. The testimony of PW-1 has gone unrebuttal and uncontroverted without any challenge as Defendant has chosen not to appear or contest the suit. As far as liability of Defendant is concerned the same stands proved in view of the unrebuttal testimony of the PW-1.
11. As regards the rate of interest claimed by the Plaintiff is concerned, I am of the considered opinion that as per the Judgment of Hon'ble Supreme Court in Central Bank of India Vs. Ravindra AIR 2001, Supreme Court 3095, the grant of pendente-lite and future interest is a subject matter of the discretion of the Court and not to be governed by the agreement between the parties. Accordingly in exercise of the discretionary power of this Court, I have granted pendente-lite and future interest at the rate of 6% p.a. to the Plaintiff because Section 34 of CPC, 1908 as well as the provisions of the Interest Act, 1978, contemplate grant of interest at the rate of 6% per annum and because in the past decade, the nationalized banks have also granted interest at the rate of 5-6% per annum, on terms deposits.
12. Thus, as a net result of the aforesaid, the suit of the Plaintiff is decreed for an amount of Rs. 5,98,723/- (Rupees Five Lakhs Ninety Eight Thousand Seven Hundred and Twenty Three Only) along with the interest pendente-lite and future interest @ 6% p.a. till its realization.
13. The Suit of the Plaintiff is decreed accordingly.
CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 13 of 1414. Decree sheet be drawn by the Reader of this Court and file be consigned to Record Room.
Announced & dictated in the
open Court on this
30th March, 2024 (NEELAM SINGH)
District Judge
(Commercial Court-02)
South-East, Saket Courts, ND
30.03.2024
CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 14 of 14
CS (COMM) 966/19
Minosha India Limited Vs. M/s National Tele Links 30.03.2024 Present: Ld. Counsel for plaintiff.
Ld. Counsel for defendant.
Vide separate judgment announced in the open court, the suit of the plaintiff is decreed.
File be consigned to record room after due compliance.
(NEELAM SINGH) District Judge (Commercial Court-02) South-East, Saket Courts, ND 30.03.2024 CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 15 of 14 CS DJ-966/2019 Minosha India Limited Vs. M/s National Tele Links Page 16 of 14