Delhi District Court
Mr. Aman Singhal Prop vs M/S Shyam Enter Pricies on 4 July, 2022
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA
DISTRICT JUDGE
COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-006430-2019.
CS (Comm) No. 202 of 2019.
Mr. Aman Singhal Prop.
M/s Aman Electric Vehicles
Head Office at : 695, Loni Road,
Shahdara, Delhi-110032.
.......................................................................................Plaintiff.
versus
1. M/s Shyam Enter Pricies
Through It's Prop. Mr. Somesh Jaiswal,
At : H. No-3, Basant Vihar, Takrohi,
Indira Nagar, Lucknow (U.P)-226016.
2. Mr. Somesh Jaiswal,
Prop. M/s Shyam Enter Pricies,
Son of Mr. Brij Kishore Jaiswal,
Resident of 86, Gola Ganj, Utraula Road,
Vinod Takies, Gonda, (U.P.)-271001.
3. Babu Banarsi Das University,
Through It's Vice Chancellor/Directors/Partners,
At : BBD City, Faizabad Road,
Lucknow-227015, Uttar Pradesh.
...................................................................................Defendants.
Date of institution of the case : 27.09.2019.
Date of consideration of the case : 28.09.2019.
Date of transfer of the case to this Court : 12.02.2020.
Date of application for Pre-Institution Mediation : 13.08.2019.
Date of issuance of Non Starter Report : 05.09.2019.
Date of conclusion of the final arguments : 01.07.2022.
Date of judgment : 04.07.2022.
CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 1 of 32 ::-
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Appearances : Mr. Robin Tyagi, counsel for the plaintiff.
Defendant number 1 and 2 were proceeded ex-parte vide order
dated 20.12.2021.
Mr. Shwetank Sailakwal, counsel for the defendant number 3.
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JUDGMENT
1. This is a commercial suit for recovery of Rupees Seventeen Lacs, Seventeen Thousand, Six Hundred and Forty only (Rs.17,17,640/-) filed by Mr. Aman Singhal, proprietor of M/s Aman Electric Vehicles (herein after referred to as the plaintiff) against M/s Shyam Enter Pricies, Mr. Somesh Jaiswal, proprietor of M/s Shyam Enter Pricies and Babu Banarsi Das University (herein after referred to as the defendants).
2. The plaintiff has filed a suit wherein it is averred that the plaintiff is engaged in a business of manufacturer and whole seller of electric vehicles (E-Rickshaw) with the name and style of M/s Aman Electric Vehicles as proprietor thereof, from the above said address and having manufacturing unit/factory at: D-36, A-5/6, UPSIDC Tronica City, Loni, Ghaziabad, U.P. The defendant numbers 1 and 2 used to visit the office of the plaintiff for purchasing the e-rickshaw from the plaintiff from time to time and the defendant numbers 1 and 2 requested the plaintiff for supply of the goods on credit basis, being a dealer. Considering the old business relations with the defendant numbers 1 and 2, the plaintiff became ready to supply the e-rickshaws to the defendant numbers 1 and 2 on credit basis, as requested by them. The defendant numbers 1 and 2 along with one of the representative of the defendant number 3 had approached the CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 2 of 32 ::-
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plaintiff at his aforementioned office and disclosed that the defendant number 3 had opened the bid for supplying of e-rickshaw and further assured that the defendant number 1 and 2 will get the tender of the same in favour of the plaintiff. Thereafter, the plaintiff received the e-mail from the defendant number 3 for requirement of the earnest money of Rupees Sixty Thousand only (Rs.60,000/-) from the plaintiff. After receiving the e-mail from the defendant number 3, the plaintiff told about the same to the defendant numbers 1 and 2 on which the defendants again approached the plaintiff and received Rupees Sixty Thousand only (Rs.60,000/-) from the plaintiff as earnest money and thereafter, the defendant number 3 acknowledged the amount of earnest money through e-mail and also issued the order ID BBDU001256473. Thereafter, as per the direction of the defendant number 3, the plaintiff supplied the 16 e-rickshaws to the defendant number 3 through the defendant numbers 1 and 2 time to time as per their requirement and the defendant numbers 1 and 2 acknowledged the same. As per statement of accounts and bills of the defendants, a sum of Rupees Fourteen Lacs, Thirty Three thousand and Six hundred only (Rs.14,33,600/-) is still due against the defendants, which the defendants have to pay to the plaintiff, as all the e-rickshaws as per the orders had already been received by the defendants with respective bills. The plaintiff, many times, requested the defendants to make the payments as per invoices/bills raised by the plaintiff but no satisfactory reply was given by the defendants to the plaintiff. The plaintiff, on several occasions, demanded and requested the defendants to pay the outstanding amount of Rupees Fourteen Lacs, Thirty Three thousand and Six hundred only (Rs.14,33,600/-) though the defendants acknowledged the bills and CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 3 of 32 ::-
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amount but did not made any payments to the plaintiff and all efforts made by the plaintiff turn to futile, hence the defendants rendered themselves to pay interest @ 18 % per annum on the outstanding amount w.e.f. August, 2018 till its realization.
3. It is further averred on behalf of the plaintiff that the defendants are using the money of the plaintiff for their wrongful gain and causing wrongful loss to plaintiff, hence, the defendants are also liable to be prosecuted under Section 406 of the Indian Penal Code (hereinafter referred to as the IPC). The defendants are liable to pay a sum of Rupees Fourteen Lacs, Thirty Three Thousand and Six hundred only (Rs.14,33,600/-) and also return Rupees Sixty Thousand (Rs.60,000/-) which was taken by the defendants as earnest money from the plaintiff along with interest @ of 18 % per annum on the aforesaid amount from August, 2018 to June, 2019 amounting to Rupees Two Lacs, Twenty Four Thousand and Forty only (Rs.2,24,040/-) and further liable to pay the interest @ of 18 % per annum on the decretal amount till its realization. The plaintiff also issued the legal notice dated 04.05.2019 through his counsel to the defendants and the same was duly severed upon the defendants. After the service of the legal notice, the defendant number 3 sent the concocted and fabricated reply dated 27.05.2019. The plaintiff does not have any other equally efficacious remedy for his redressal except to file the present suit of recovery.
4. The cause of action for filing the present suit has been detailed in paragraph number 13 of the plaint. The territorial and pecuniary CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 4 of 32 ::-
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jurisdiction have been elaborated in paragraph numbers 14 and 15 respectively of the plaint.
5. The plaintiff, in its prayer in the plaint, has prayed for :
a) passing a decree of recovery in favour of the plaintiff and against the defendants for a sum of Rupees Seventeen Lacs, Seventeen Thousand, Six Hundred and Forty only (Rs.17,17,640/-) along with interest @ of 18 % per annum on the aforesaid amount from August, 2018 to June, 2019 amounting to Rupees Two Lacs, Twenty Four Thousand and Forty only (Rs. 2,24,040/-) and further pendente lite and future interest @ 18 % per annum on the decretal amount till the realization of the same;
b) awarding the cost of the suit in favour of the plaintiff and against the defendants;
c) passing any other relief which the Court may deem fit and proper under the circumstances in favour of the plaintiff and against the defendants.
6. This case, which was filed on 27.09.2019, was assignment to the Court of the learned predecessor of this Court for 28.09.2019. It was considered on 28.09.2019 and service was ordered to be effected upon the defendants for 07.02.2020.
7. On 12.02.2020, the file was received by way of transfer in this Court in compliance to the order no.60/DHC/Gaz./G-1, VI.E.2 (a)/2019 dated CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 5 of 32 ::-
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05.12.2019, Order no.8482-94/ Judl./ Shd./KKD/2019 Delhi dated 07.12.2019 and the partial modification dated 10.12.2019 by the learned District and Sessions Judge, Shahdara, Karkardooma Courts, Delhi.
8. On 12.02.2020, the counsel for the defendant number 3 had appeared and filed his vakalatnama (power of attorney) on behalf of the defendant number 3. As defendant number 1 and 2 were unserved, service was ordered to be effected upon defendant number 1 and 2 again for 30.03.2020.
9. The written statement along with statement of truth, application for condonation of delay under section 5 of the limitation Act and affidavit of admission and denial of the documents have been filed on behalf of the defendant number 3.
10.On 21.08.2020, it was reported that the defendant number 1 had refused to accept the summons, which was considered as service of the defendant number and adverse order were not passed against defendant number 1.
As defendant number 2 was unserved, service was ordered to be effected upon defendant number 2 again for 12.10.2020.
11. On 12.10.2020, the counsel for the defendant number 3 had pointed out that an application of defendant number 3 for condonation of delay under section 5 of the limitation Act and the written statement is pending. As the plaintiff and defendant number 3 were discussing regarding settlement, the application was kept pending for consideration.
CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 6 of 32 ::-
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12.Thereafter, service was ordered to be effected upon defendant number 1 and 2 again for 03.11.2020, 09.12.2020, 30.01.2021, 27.03.2021, 25.05.2021 and 11.10.2021.
13.On 11.10.2021, none had appeared on behalf of defendant number 1, who had been served on whatsapp on 04.09.2021. None had appeared on behalf of defendant number 2, who had been served on whatsapp on 06.09.2021. The counsel for the plaintiff had filed the replication to the written statement of defendant number 3 along with statement of truth and affidavit of admission and denial of the documents qua defendant number
3.
14.On 20.12.2021, despite having waited since morning till 02:20 pm, the counsel for the plaintiff had appeared but none had appeared on behalf of defendant number 1, who was served on whatsapp on 04.09.2021 and defendant number 2 who was served on whatsapp on 06.09.2021. In the circumstances, the defendant number 1 and 2 were proceeded ex parte. Matter was adjourned for settled between plaintiff and defendant number 3 and consideration of the application of the defendant number 3 for condonation of delay under section 5 of the Limitation Act.
15.On 20.01.2022, the counsel for the plaintiff and the counsel for the defendant number 3 had submitted that the settlement has not been effected between the parties and have requested for proceeding further with the case. The application of the defendant number 3 for condonation CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 7 of 32 ::-
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of delay under section 5 of the Limitation Act was allowed and the written statement of defendant number 3 was taken on record.
16.In the written statement filed on behalf of defendant number 3, all the averments made in the plaint have been controverted and rebutted submitting that the suit is bereft on merits and is liable to be dismissed. This Court has no territorial jurisdiction to hear and decide the present suit as none of the defendants reside or work for gain within the territory of Delhi nor the cause of action wholly or partly arose with the territorial jurisdiction of this Court. Defendant number 3 (Babu Banarasi Das University) has never floated any tender for the supply of e-rickshaws as alleged. Defendant number 3 has never received any payment and has never received the delivery/supply of any e-rickshaws from the plaintiff or anyone else on its behalf. Defendant number 3 has no relation or concern of any nature, whatsoever with the persons arrayed as Defendant numbers 1 and 2. Defendant number 3 never required any supply of e-rickshaw. Defendant number 3 also did not authorize any person as its representative to approach plaintiff or anyone else for supplying of e- rickshaws. Since, Defendant number 3 was never in requirement of any e- rickshaw and hence, there is no question of defendant number 3 inviting any bid or providing its tender to the plaintiff or to anyone else. It is vehemently denied that defendant number 3 (Babu Banarasi das University) or any of its authorized representative has ever sent any email requiring the plaintiff to pay Rupees Sixty Thousand only (Rs.60,000/-) as earnest money. Defendant number 3 or any of its authorized officer has neither sent any email acknowledging the alleged order ID CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 8 of 32 ::-
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BBDU001256473. Defendant No.3 has denied that it has received the supply of 16 e-rickshaws as has been alleged by the plaintiff. Defendant number 3 has not received any supply of any e-rickshaw what to say of 16 e-rickshaws from the plaintiff and hence, there is no question of making any payment in this regard to the plaintiff. It is denied by defendant number 3 that the plaintiff has on several occasions demanded and requested defendant number 3 to pay the alleged outstanding amount. In fact, it was the first time when defendant number 3 had come to know with regard to alleged claim of the plaintiff through the subject notice. Defendant number 3 has never placed any order nor has received the supply of any goods or money from the plaintiff and hence, there is no question of defendant number 3 making any wrongful gain by causing any wrongful loss to the plaintiff. Defendant number 3 has denied that there was never in requirement of any e-rickshaw and hence, there is no question of earnest money and payments. The entire suit is filed on lies, concocted story, surmises and conjectures and must be dismissed with heavy costs. Defendant number 3 never required any supply of e- rickshaw, hence; defendant number 3 also did not authorize any person as its representative to approach the plaintiff or anyone else for supplying of e-rickshaws. Since, defendant number 3 was never in requirement of any e-rickshaw and hence, it is defendant number 3 had not invited any bid for providing its tender to the plaintiff or to anyone else. Defendant number 3 (Babu Banarasi das University) or any of its authorized representative has never met the plaintiff nor sent any email requiring the plaintiff to pay Rs. 60,000/- as earnest money. No representative of defendant number 3 approached the plaintiff's office and received Rs. 60,000/- as earnest CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 9 of 32 ::-
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money. Defendant No.3 or any of its authorized officer have not sent any email acknowledging the alleged order ID BBDU001256473. Defendant number 3 never gave any directions to defendant number 1 and defendant number 2 time to time for the requirement of any e-rickshaws. Sum of Rs. 14,33,600/- is not due against the defendant number 3 as defendant number 3 never required any e-rickshaws and hence, there is no reason of payment and returning of Rs. 60,000/- of earnest money along with interest of 18% per annum from August, 2018 to June, 2019 amounting to Rs. 2,24,040/- with interest of 18 % per annum on the decretal amount till its realization. Prayer for dismissal of the case with heavy cost has been made.
17.In the replication filed on behalf of the plaintiff, the averments made in the plaint have been reaffirmed and reasserted and the averments made in the written statement of defendant number 3 have been controverted and rebutted.
18.Vide order dated 20.01.2022, from the pleadings of the parties, the following issues were framed :-
1. Whether the plaintiff is entitled to the relief claimed in the plaint i.e. a decree for recovery of a sum of Rs.17,17,640/-
along with interest @ 18 % per annum on the aforesaid amount from August, 2018 to June, 2019 amounting to Rs.2,24,040/- and further liable to pay pendente lite and future interest @ 18 % per annum on the decretal amount till the realization of the same against the defendant number CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 10 of 32 ::-
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3 as well as defendant numbers 1 and 2 (who are ex-parte)? OPP.
2. Relief.
19.Vide order dated 20.01.2022, Mr. Inderjeet Singh, learned AD & SJ (retired) was appointed as Local Commissioner for recording the evidence in this case.
20.In order to prove his case, the plaintiff has examined himself as PW-1.
The defendant number 3 has examined Dr. Sudharma Singh as D3W1.
21.Written submissions have been filed on behalf of the plaintiff and defendant number 3.
22.Arguments at length have been advanced by the counsel for the plaintiff and the counsel for the defendant number 3 and the same were concluded on 01.07.2022. I have given my careful thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written submissions filed on behalf of the plaintiff and defendant number 3. The judgments relied upon by defendant number 3 have also been carefully perused.
23.The defendant number 3 has placed reliance upon the following judgments :
i. K.P.M. Builders Private Limited v. National Highways Authority of India and another, (2015) 15 Supreme CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 11 of 32 ::-
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Court Cases 394.
ii. M/s Contract Advertising India Ltd. v. M/s Ajanta Offset & Packagings Ltd. & Anr. (2017) 245 DLT 169.
24.It has been argued on behalf of the plaintiff (verbally as well as in written submissions) that defendant number 3 is liable to make the payment of the claimed amount to the plaintiff. The facts elaborated in the plaint have been reaffirmed. As per the statement of accounts and bills of the defendants, a sum of Rupees Fourteen Lacs, Thirty Three Thousand and Six Hundred only (Rs.14,33,600/-) is still due against the defendants, which the defendants have to pay to the plaintiff, as all the E-rickshaws, as per the orders, had already been received by the defendants with respective bills. The plaintiff had requested the defendants several times to make the payments as per invoices/bills raised by the plaintiff but no satisfactory reply were given by the defendants to the plaintiff. The defendant number 3, to grab the hard earned money of the plaintiff, got registered the FIR on the defendant numbers 1 and 2 with sole intention to take the benefits of its own wrongs. The defendants are collusion with each other and after hatching the conspiracy with each other took the e- rikshaws from the plaintiff and did not paid the amount. Defendant number 3 intentionally and deliberately did not examine any witness from the purchase department despite D3W1 i.e. Dr. Sudharma Singh in his cross examination admitted that there is purchase department in the university who look after the purchase of the university. The plaintiff has relied upon the bills/invoices i.e. Ex. PW 1/C (Colly) (pages 18 to 26) and the plaintiff has proved the documents as per law. The plaintiff also relied upon the conversation through e-mails which are exhibited as Ex. PW 1/F CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 12 of 32 ::-
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(Colly) (pages 35 to 59) and the plaintiff has proved the documents as per law.
25.It has been argued on behalf of the defendant number 3 (verbally as well as in written submissions) that suit of the plaintiff is liable to be dismissed. The facts elaborated in the written statement filed on behalf of defendant number 3 have been reaffirmed. It is argued that the plaintiff has not come with clean hands and has made false averments and has suppressed and distorted facts. Defendant number 3 has no relation or concern of any nature, whosoever with the persons arrayed as defendant numbers 1 and 2 in the present suit. There is no privity of contract between the plaintiff and defendant number 3. Defendant number 3 (Babu Banarsi Das University), Lucknow has never floated any tender for the supply of e-rickshaw, as alleged. Plaintiff never met any representative of the Defendant number 3. The defendant No.3 had never communicated telephonically or through email with the plaintiff. The official email address of defendant number 3 is [email protected] and the plaintiff had received alleged emails from [email protected]. The plaintiff has not filed any letter of indent, any written contract or any email any tender, any acceptance of tender in respect of supply of e rickshaws by the plaintiff to defendant number 3. Defendant number 3 does not have any branch or office at the address (as per the e-way bills the destination of e- rickshaw is Gonda and not Lucknow) where allegedly the e rickshaws were delivered by the plaintiff to defendant number 3. The plaintiff had not seen identity proof of Mr. Aditya (alleged representative of defendant number 3 nor the plaintiff had met any representative of defendant CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 13 of 32 ::-
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number 3 by visiting personally in the office/ campus of defendant number 3. Defendant number 3 was never in requirement of any e- rickshaw and hence there is no question of defendant number 3 inviting any bid or providing its tender to the plaintiff or to anyone else. The FIR dated 09.03.2020 bearing No. 0235 of 2020 P.S. Chinhat registered u/s 419, 420 I.P.C. and 66 (c) of Information Technology Act 2020 regarding the fake email Id is lodged by the defendant number 3 and the email received by the plaintiff re from the defendant number 3 requiring him to pay the earnest money of Rs.60,000/- were fake and are under investigation.
26.The issue wise findings are as follows :
Issue Number 1
27.Issue number 1 is : Whether the plaintiff is entitled to the relief claimed in the plaint i.e. a decree for recovery of a sum of Rs.17,17,640/- along with interest @ 18 % per annum on the aforesaid amount from August, 2018 to June, 2019 amounting to Rs.2,24,040/- and further liable to pay pendente lite and future interest @ 18 % per annum on the decretal amount till the realization of the same against the defendant number 3 as well as defendant numbers 1 and 2 (who are ex-parte)? OPP.
28.The defendant number 3 has claimed in the written statement that this Court does not have the territorial jurisdiction to try this case as none of the defendants reside or work for gain at Delhi nor the cause of action, CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 14 of 32 ::-
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wholly or partly, arose within the Jurisdiction of this Court.
29.Although the issue of jurisdiction has not been pressed by defendant number 3, it is being taken into consideration. As per the case of the plaintiff, the office of the plaintiff is situated within the jurisdiction of this Court and defendant numbers 1 and 2 as well as the representative defendant number 3 had approached him at his office and the earnest money of Rupees Sixty Thousand only (Rs.60,000/-) was received by defendant numbers 1 and 2 there.
30.In the circumstances, in terms of section 20 of the Civil Procedure Code (hereinafter referred to as the CPC) apparently this Court does have the territorial jurisdiction to try this case as the alleged cause of action appears to have arisen and taken place within the jurisdiction of this Court
31.This Court has the pecuniary jurisdiction over the present case as this case is for recovery of Rupees Seventeen Lacs, Seventeen Thousand, Six Hun- dred and Forty only (Rs.17,17,640/-) as claimed by the plaintiff in the plaint and it is as per the specified value, as defined in section 2 (1) (c) (i) of the Commercial Courts Act (hereinafter referred to as the CC Act) and as per section 6 of the CC Act.
32.The dispute between both the sides is commercial in nature and is cov-
ered within the ambit of section 2 (1) (c) (i) of the CC Act.
CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 15 of 32 ::-
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33.As regards the limitation, the plaintiff, in the plaint, has not mentioned any dates of the defendants approaching the plaintiff, of transactions, of tax invoices, of e-way bills, of delivery of e rickshaws, etc. The present case was filed on 27.09.2019 and then, after obtaining the Non Starter Re- port dated 05.09.2019 (application for pre-institution mediation filed on 13.08.2019) which is within the period of limitation as the plaintiff is rely- ing on alleged emails dated 07.06.2018, 12.06.2018, 20.06.2018, 25.06.2018etc. (Ex.PW1/F) from defendant number 3 and the e rickshaws were alleged delivered by the plaintiff to defendant number 3 (as per Ex.PW1/C i.e. copies of tax invoices dated 12.06.2018, 12.06.2018, 23.07.2018 and 23.07.2018 and the e-way bills dated 12.06.2018, 12.06.2018, 23.07.2018 and 23.07.2018).
34.Therefore, as the alleged transaction between the parties took place in the year, 2018 (as elaborated above) and the case was filed on 27.09.2019, the case has been filed within the period of limitation.
35.The plaintiff as PW-1 has filed his affidavit as his examination in chief wherein he has deposed on the lines of the plaint. However, the veracity of the case and the testimony of PW-1 stand shattered in his cross examination. PW-1 has deposed that in his cross examination that "...No written contract is entered with the dealer in respect of selling of e rickshaw.... Letter of intent was issued to defendant no.1 and 2 and no letter of intent was issued to defendant no.3....I have not filed any letter of intent in the judicial file, so far I recollect....I have also seen the file and there is no letter of intent in the judicial file...." The plaintiff has CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 16 of 32 ::-
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failed to produce any evidence to show that the letter of intent was issued to any of the defendants.
36.This part of the evidence of PW-1 clearly shows that there was apparently no privity of contract between the plaintiff and defendant number 3. No agreement between the plaintiff and defendant number 3 was ever executed; no letter of intent was issued by the plaintiff to defendant number 3.
37.The plaintiff, in the plaint, and in his evidence as PW-1 has not been able to show any document to indicate that defendant number 3, by itself or through its representative had placed orders with the plaintiff for supply of 16 e-rickshaws.
38.In the plaint, neither the plaintiff has not mentioned any dates of the defendants especially defendant number 3 approaching the plaintiff, of the alleged transactions, of the alleged tax invoices, of the alleged e-way bills, of the alleged delivery of e rickshaws, etc. The plaint is vague and unspecific and without the incorporation of the material facts and dates.
39.Further, the plaintiff has even failed to mention the name and particulars of the alleged representative of defendant number 3 who had approached him for payment of earnest money of Rupees Sixty Thousand only (Rs.60,000/-). His name was disclosed as Mr. Aditya for the first time in the cross examination of PW-1. Even after coming in contact with Mr. Aditya, the plaintiff did not verify his credentials nor ascertained whether CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 17 of 32 ::-
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or not he was actually the authorized representative of defendant number
3. It has been deposed that "We have also entered into transaction with defendant no.1 and 2 besides the transaction with the defendant no.3 through defendant no. 1 and 2. ..... he was Mr. Aditya being representative of defendant no.3. I had not seen identity proof of said Mr. Aditya. It is wrong to suggest that no such person by name of Mr. Aditya was ever since representative of defendant no.3 (Vol. His name is also appearing in the e-mail correspondence)."
40.Here, it may also be mentioned that defendant number 3 has denied that the alleged email id i.e. [email protected] on which the plaintiff had made the alleged email conversation is not of defendant number 3. The email id i.e. [email protected] is the actual and correct email id of defendant number 3. When defendant number 3 came to know about the fake/impersonating email id, defendant number 3 had lodged an FIR dated 09.03.2020 bearing No. 0235 of 2020 P.S. Chinhat registered u/s 419, 420 I.P.C. and 66 (c) of Information Technology Act 2020..
41.As the onus of proving issue number 1 is on the plaintiff, he was required to prove that Mr. Adiya was the authorized representative of the defendant number 3 and [email protected] is the email id of defendant number 3. PW-1 had not even seen identity proof of Mr. Aditya. The plaintiff has failed to prove the same that he had met any Mr. Aditya who was the authorized representative of defendant number 3 and had allegedly taken the earnest money. The plaintiff had neither visited the office of defendant number 3 nor communicated on phone with defendant CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 18 of 32 ::-
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number 3 to verify and discuss regarding the alleged tender of defendant number 3. PW-1 has also deposed that "I never met any representative of defendant no.3 by visiting personally in the office/campus of defendant no.3...... It is correct that defendant no.3 had not communicated with the plaintiff on telephone but it is wrong to suggest that defendant no.3 had not communicated through e mail."
42.The plaintiff has demolished his own case by deposing that "I had not seen the tender of defendant no.3. (Vol. However, I had seen the letter of defendants no.1 and 2 in respect of tender of defendant no.3). The said letter was issued by the defendant no.3 in the name of M/s Aman Electric Vehicles. The copy of the said letter is accompanying with the e- mail correspondence. I have seen the judicial file and the said copy of letter is at point A encircled on page no. 47 (being part of Ex.PW1/F). It is correct that the letter at point A on page no. 47 is not readable and the letters are too small to be read. I have to read and check from the plaint whether the letter/attachment at point A on page no. 47 was mentioned in the plaint. It is wrong to suggest that no such letter / attachment was issued by defendant no.1 and 2 in favour of defendant no.3. The e mail at page no.47 big rectangle at point B was by me to defendant no.1, 2 and 3 as a reply to the e mail received....." The plaintiff had not even seen the alleged tender of defendant number 3. The copy of letter at point A encircled on page no. 47 (being part of Ex.PW1/F) is not readable and the letters are too small to be read. The plaintiff has failed to furnish a readable copy of the said letter due to which his contention that defendant number 3 had issued the said letter to CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 19 of 32 ::-
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him becomes unbelievable. In any case, the plaintiff cannot take any benefit of any communication between the defendant numbers 1 and 2 with defendant number 3. The plaintiff had not seen nor read the tender allegedly issued by defendant number 3, did not make any bid in writing for the same, did not get any alleged acceptance of the bid in writing from defendant number 3, etc. The plaintiff has also failed to furnish any document vide which the defendant number 3 had allegedly accepted the receipt of the 16 e-rickshaws.
43.PW-1 has deposed that "Prior to receipt of reply to legal notice (Ex.PW1/E) of defendant no.3, we had no knowledge that actually defendant no.3 had not issued any tender but earlier thereto there was correspondence in respect of tender of defendant no.3 through defendant no.1 and 2. (Vol. Thence, we had also filed a police complaint in PS Shahdara against the defendant no.1 and 2)." When there was no tender of defendant number 3, no bid made by the plaintiff for such a tender, no acceptance of the bid of the plaintiff by defendant number 3, it cannot be claimed by the plaintiff that defendant number 3 is liable to make any payment to him. Any payment i.e. Rupees Sixty Thousand only (Rs.60,000/-) allegedly paid by the plaintiff to Mr. Aditya was apparently negligence of the plaintiff. The plaintiff had neither seen nor verified any authorization by defendant number 3 in favour of Mr. Aditya or in favour of defendant numbers 1 and 2. If the plaintiff has paid any money or delivered any e-rickshaw, then he has done the same at his own risk and peril.
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44.There is no authorization by defendant number 3 in favour of defendant numbers 1 and 2 that they are authorized to act on its behalf, write correspondence or emails, issue tender or accept bids, etc. The plaintiff has also admitted that prior to receipt of reply to legal notice (Ex.PW1/E) of defendant number 3, he had no knowledge that actually defendant number 3 had not issued any tender but earlier thereto there was correspondence in respect of tender of defendant number 3 through defendant numbers 1 and 2.
45.Further, the cross examination of the plaintiff (PW-1) shows that his claim is wrong. He has deposed that "The e- rickshaws were supplied at Lucknow. The delivery of e rickshaw was made to vendor through defendant no.1 and 2. The name of the vendor is mentioned at e mail and at this moment I am not recollecting its name (Vol. The detail of vendor was informed to us through e mail by defendant no.3.).... There is no such particular e mail by defendant no.3 but it was defendant no.1 and 2 looking about the part of vendor." This part of the evidence clearly indicates that the alleged delivery of the e-rickshaws was never made by the plaintiff to defendant number 3. The copies of the tax invoices donot have the signatures of defendant number 3. The copies of the eway bills annexed at page numbers 19, 21, 23 and 25 indicate that the e-rickshaws were allegedly delivered at Gonda, Uttar Pradesh. It is not in dispute that the address of defendant number 3 is at Lucknow, Uttar Pradesh and not at Gonda, Uttar Pradesh. Therefore, any delivery of e-rickshaws by the plaintiff at Gonda, Uttar Pradesh cannot be considered as delivery to defendant number 3.
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46.It is clear on perusal of the tax invoices/bills and the e way bills that they do not have the signatures of defendant number 3 and the same indicates that the same are unilateral documents, prepared by the plaintiff, to take benefit from defendant number 3, without any actaual tender being floated by defendant number 3, without any bid by the plaintiff, without any acceptance by defendant number 3 and without any e-rickshaw being supplied to the defendant number 3. Apparently, there is no privity of contract between the plaintiff and defendant number 3.
47.PW-1 has also deposed that "It is correct that the plaintiff never delivered directly e rickshaw to the defendant no.3 (Vol. Because the e rickshaw were to be delivered to the vendor). The detail of vendor was provided to us by defendant no.1 and 2. The earnest amount of Rs.60,000/- was given in cash to defendant no.1 and 2 by the plaintiff......I have seen the record and as per e way bills at page no.19,21,23 and 25 the destination of delivery of e rickshaw is Gonda and not Lucknow. The e- rickshaws were supplied at Lucknow." Despite the e-ways bills showing the alleged delivery of e-rickshaws at Gonda, Uttar Pradesh and the alleged delivery not made to defendant number 3, the plaintiff is wrongly claiming that the e-rickshaws were supplied at Lucknow (contrary to his own documents). PW-1 could not tell the name of the alleged vendor to whom the alleged delivery was made through defendant numbers 1 and 2. PW-1 has admitted that "It is correct that I had not mentioned the name of vendor either in my plaint or in replication to written statement or my affidavit A1."
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48.The plaintiff has taken contrary stands in respect of paying Rupees Sixty Thousand only (Rs.60,000/-) as earnest money. PW-1 has deposed that "I had shown the earnest money of Rs.60,000/- in the Income tax return of that year. (Vol. I want to mention that the amount was still lying outstanding and accordingly it was shown). The outstanding amount has been shown against defendant no.3. I have not filed the income tax return of that year showing Rs.60,000/- as outstanding but placed on record statement of account / ledger reflecting the amount of Rs.60,000/-. Again said I have not filed the said statement of account/ledger showing amount of Rs.60,000/- but I have shown company expenses of that amount of Rs.60,000/-. I have not filed the record of those expenses with the plaint."
49.The documents of the plaintiff may not be genuine is revealed from the evidence of PW-1 when he has deposed that "The delivery of e rickshaw was through mode of transport of road by truck. There is no separate receipt in respect of sending the e rickshaw by truck but truck number is mentioned in the eway bill as well as in the invoices." No explanation has been furnished by the plaintiff regarding the truck number being mentioned in the eway bill as well as in the invoices.
50.The plaintiff has even failed to prove that the 16 e-rickshaws were actually delivered at Gonda, Uttar Pradesh as no such document has been filed. The plaintiff has only filed invoices/bills and e-way bills (Ex.PW1/C) which do not bear the signatures of defendant number 3 or CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 23 of 32 ::-
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its authorized representative or even the stamp of defendant number 3. The receipt of Rupees Sixty Thousand only (Rs.60,000/-) as earnest money has also not been filed. The plaintiff has failed to show that the address mentioned on e-way bills is that of the defendant number 3 as even in the array of defendants, the address of defendant number 3 is Lucknow, Uttar Pradesh and not Gonda, Uttar Pradesh.
51.The plaintiff had not filed the copy of the tender allegedly floated by defendant number 3, the letter of intent, the written contract between the plaintiff and defendant number 3. The plaintiff has admitted that the letter of intent was issued to defendant numbers 1 and 2 and no letter of intent was issued to defendant number 3. The place of alleged delivery of the e- rickshaws is not the address of defendant number 3 which also shows that there is no privity of contract between the plaintiffs and defendant number
3.
52.Hon'ble Supreme Court of India in the case of K.P.M. Builders Private Limited v. National Highways Authority Of India & Anr. (2015) SCC 394, while dealing with the privity of agreement, has observed as follows:
"9. There is no privity of contract between NHAI and the appellant. Before allegedly hiring the machineries/equipments to the contractor, the appellant did not notify NHAI that its machineries/equipments were being hired to the contractor or given to the use of the contractor and that it was the owner of any particular machinery. The appellant was aware of the contract between NHAI and the contractor as also its terms, in particular Clause 61 of the general conditions. In spite of it, it did not require NHAI to exclude its machineries from the operation of Clause 61, before the termination of the contract. CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 24 of 32 ::-
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It also did not produce the alleged contract entered into by it with de contractor, providing that at the end of each day's work, the machineries were to be returned to the appellant. In these circumstances, we are of the view that the writ petition against NHAI was misconceived. NHAI had not entered into any contract or arrangement with the appellant, nor given any assurance to it in regard to the machineries, nor owed any duty or obligation wards the appellant. Nor can NHAI's action in taking over the machineries site in pursuance of a specific contractual term with the contractor can give se to any public law remedy to a third party against NHAI. If the appellant had entered into any contract with the contractor and if it has any enforceable nights in that behalf, it is open to the appellant to enforce such rights against de contractor. But that cannot obviously, be done in writ proceedings. As noticed above, as far as NHAI is concerned, it owes no duty or obligation wards the appellant. The appellant cannot come in the way of NHAI enforcing its rights as against the contractor
10. In the circumstances this appeal is dismissed as having no merit. Invention application filed by Citicorp Finance (India) Ltd., who alleges to be the financier for the appellant, is also dismissed. Dismissal of this appeal will not however come in the way of the appellant taking against the contractor, such action as may be available to it in law."
53.Hon'ble High Court of Delhi, in the judgement in the case reported as M/s Contract Advertising India Ltd. v. M/s Ajanta Offset & Packagings Ltd. & Anr. (2017) 245 DLT 169 has observed as follows :
"8. I agree with both the arguments urged on behalf of the appellant/defendant no.2. Firstly, Section 230 of the Indian Contract Act clearly shows that wherever there is a disclosed principal the liability is of the disclosed principal and not the agent because the agent takes no right or incurs no liability for himself and which right and liability under the contract is only of the principal. As per paras 9(A) and 9(B) of the amended plaint, as also the deposition to the same effect of PW-1 Sh. CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 25 of 32 ::-
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Shankar Karji dated 4.8.2003, the appellant/defendant no.2 was pleaded and proved to be acting as the agent of respondent no.2/defendant no.1, and consequently the appellant/defendant no.2 cannot be held liable in view of Section 230 of the Indian Contract Act. Accordingly, the judgment of the court below with respect to the finding on issue no.2 holding that there was a privity of contract between the respondent no.1/plaintiff and the appellant/defendant no.2 is erroneous and set aside.
9. I may clarify that by the impugned judgment and decree the suit was jointly and severally both against the appellant/defendant no.2 and the respondent no.2/defendant no.1 and by this judgment the impugned judgment and decree is set aside only as against the appellant/defendant no.2 but the decree will continue so far as the respondent no.2/defendant no.1 is concerned.
10. The appeal is accordingly allowed and disposed of leaving the parties to bear their own costs.
11. Any amount which is deposited by the appellant/defendant no.2 in this Court, be released back to the appellant by the Registry of this Court along with accrued interest thereon, if any, within a period of four weeks from today."
54.D1W1, in his affidavit filed as his examination in chief, has reaffirmed and reiterated the averments made in the written statement of defendant number 3 and rebutted the averments made in the plaint. In his cross examination, he has deposed that "I have been Registrar in the University since its functional from 2011. ...It is matter of record that FIR dated 09.03.2020 is subsequent to written statement dated 06.03.2020....It is correct that there is distribution of work in the University and there is a department looking after the purchases, it is known as Purchase Department....It is wrong to suggest that our Purchase Department through its personnel have floated tender for buying e-rickshaw. It is wrong to suggest that defendant no. 03 have CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 26 of 32 ::-
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floated the tender for buying e-rickshaws through defendant no.01 M/s Shyam Enterprises and its proprietor/defendant no. 02 Sh. Somesh Jaiswal. It is wrong to suggest that one of the official from your Purchase Department had accompanied defendant no. 02 to the office of plaintiff by showing interest of buying e-rickshaws through tender. It is further wrong to suggest that said official of defendant no. 03 assured the plaintiff that there would be tender in his name for supply of e- rickshaws. There was no correspondence through e-mail by the defendant no. 03 to the plaintiff Aman Electric Vehicles for buying the e-rickshaws. There was no official from our Purchase Department visited the office of the plaintiff or took Rs. 60,000/- cash as an earnest amount for supply of e-rickshaws. We never sent any confirmation from our official e-mail to the plaintiff of receipt of Rs. 60,000/- by our officer from the Purchase Department. I have seen the e-mail record EX PW 1/F and I deny all the e-mail correspondence...Vol. Our official e-mail address is [email protected] ). ...Firstly the Purchase Department has no direct authority to place order or buying goods at its own and things can be purchased with the permission of higher authorities based on requisition of concerned department. It is nothing like this that the Purchase Department had initiated the process for buying e-rickshaws without bringing to the knowledge of Registrar or higher authorities....The Purchase Department of defendant no. 03 has not defrauded the plaintiff independently or with the defendant no. 01 and 02. (Vol. Let the plaintiff to produce the record to establish this allegation)."
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55.The plaintiff has claimed that the defendant number 3 has failed to exam-
ine the concerned official or officer of its Purchase Department due to which the defence of defendant number 3 cannot be believed. However, it is pertinent to mention that the onus of proving his case is upon the plain- tiff and he cannot take advantage of lapse or weakness, if any, of defen- dant number 3. Even otherwise, D1W1 has deposed that without the knowledge of the Registrar or higher authorities, the Purchase Department of defendant number 3 could not have initiated the process for buying e- rickshaws.
56.The plaintiff has not been able to bring forth anything material or useful to him in the cross examination of D1W1. Although he has admitted that part of the address mentioned on the tax invoices is of defendant number 3 but the same does not help the plaintiff in any way as the same are not signed by or on behalf of defendant number 3 and the place of delivery of the e- rickshaws is not the address of defendant number 3.
57.When defendant number 3 has denied all the averments and allegations made by the plaintiff, and the responsibility and onus of proving his case was upon the plaintiff, then the plaintiff was required to adduce all posi- tive evidence and prove the relevant documents but he has failed to prove the same. The plaintiff has also failed to prove his case against defendant numbers 1 and 2 (who are ex parte) as no document in writing between the plaintiff and defendant numbers 1 and 2 has been placed on the record and proved as law. The plaintiff has failed to prove the defendant numbers CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 28 of 32 ::-
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1 and 2 were acting on behalf of defendant number 3 or Mr. Aditya was the authorized representative of defendant number 3 and had taken the earnest money on behalf of defendant number 3. The plaintiff has also failed to prove that he or defendant numbers 1 and 2 had exchanged any emails with defendant number 3 or that [email protected] is the email id of defendant number 3 (the email id of defendant number 3 is [email protected] as per defendant number 3 and D1W1). It is also clear that that the alleged place of delivery of the e-rickshaws i.e. Gonda, Uttar Pradesh is not the address of the defendant number 3 which is Lucknow, Uttar Pradesh.
58.The plaintiff had not filed the copy of the alleged tender floated by defendant number 3, the letter of intent by the plaintiff to defendant number 3, the alleged bid by the plaintiff, the alleged acceptance by the defendant number 3, the contract between the plaintiff and defendant number 3, etc. The plaintiff has admitted that the letter of intent was issued to defendant numbers 1 and 2 and no letter of intent was issued to defendant number 3. The place of alleged delivery of the e-rickshaws is not the address of defendant number 3. The plaintiff has not filed any letter of indent, any written contract or any email any tender, any acceptance of tender in respect of supply of e rickshaws by the plaintiff to defendant number 3. Defendant number 3 does not have any branch or office at the address (as per the e-way bills the destination of e-rickshaw is Gonda and not Lucknow) where allegedly the e rickshaws were delivered by the plaintiff to defendant number 3. The same indicate that CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 29 of 32 ::-
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there is no privity of contract between the plaintiff and defendant number
3.
59.The judgments relied upon by defendant number 3 are squarely application to the given facts. It is clear from the record including the evidence led by both the sides and applying the ratio of the judgments relied upon by defendant number 3 that there is no privity of contract between the plaintiff and defendant number 3.
60.The plaintiff has failed to prove that defendant numbers 1 and 2 initially and then with a representative of defendant number 3 had approached him for supply of 16 e-rickshaws to defendant number 3; failed to prove that he had given earnest money of Rupees Sixty Thousand only (Rs.60,000/-) to the representative of defendant number 3; failed to prove that he had supplied 16 e-rickshaws to defendant number 3; failed to prove any relevant document i.e. tender floated by defendant number 3, bid by the plaintiff, acceptance by defendant number 3, letter of intent, contract between the plaintiff and defendant number 3, etc.; failed to prove the email id of the defendant number 3, etc.
61.Therefore, it is clear that the plaintiff is not entitled to the relief claimed in the plaint i.e. a decree for recovery of a sum of Rs.17,17,640/- along with interest @ 18 % per annum on the aforesaid amount from August, 2018 to June, 2019 amounting to Rs.2,24,040/- and further liable to pay pendente lite and future interest @ 18 % per annum on the decretal amount till the realization of the same against the defendant number 3 as well as CS (Comm) No 202 of 2019. Mr. Aman Singhal proprietor M/s Aman Electric Vehicles v. M/s Shyam Enter Pricies and ors. -:: Page 30 of 32 ::-
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defendant numbers 1 and 2 (who are ex-parte) as he has failed to prove the same. He has failed to discharge the onus of proving the same.
62.Issue number 1 is accordingly decided against the plaintiff and in favour of the defendant number 3 (as well as defendant numbers 1 and 2 who are ex parte).
Issue Number 2
63.The second issue is the relief.
64.As the plaintiff has failed to prove issue number 1, he is not entitled to any relief.
Final Finding
65.As the plaintiff has not been able to prove that he is entitled to a decree for recovery of a sum of Rs.17,17,640/- along with interest @ 18 % per annum on the aforesaid amount from August, 2018 to June, 2019 amounting to Rs.2,24,040/- along with pendente lite and future interest @ 18 % per annum on the decretal amount till the realization of the same against the defendant number 3 as well as defendant numbers 1 and 2 (who are ex-parte). Consequently, the plaintiff is not entitled to any relief.
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67.There are no orders as to costs.
68.The decree sheet be prepared accordingly.
69.In compliance to the provisions of Order XX Rule 1 of the Code of Civil Procedure (as amended up to date by the Commercial Courts Act, 2015), a copy of the judgment be issued to both the parties to the dispute through electronic mail, if the particulars of the same have been furnished or otherwise.
70.After completion of formalities, the Junior Judicial Assistant/Ahlmad of the Court shall consign the file to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA)
on this 04th day of July, 2022. District Judge
Commercial Court-01,
Shahdara, Karkardooma Courts,
Delhi. 04.07.2022.
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