Delhi District Court
Ht Media Limited vs Ad Mark Communications on 16 November, 2021
In the Court of Shri Sanjiv Jain,
District Judge (Commercial Court)03, Patiala House Courts
New Delhi
CS (Comm)No. 68/2021
HT Media Limited
At 1820, 2nd floor,Hindustan Times House
Kasturba Gandhi Marg, New Delhi110001
... Plaintiff
Versus
AD Mark Communications
Surya Mansions, 3rd Floor
625, Anna Salai, Chennai 600006 ...... Defendant
Date of institution : 23.02.2021
Date of decision : 16.11.2021
JUDGME NT
1.This summary suit for recovery of Rs. 46,61,560/- along with interest has been filed by the plaintiff under Order XXXVII CPC against the defendant M/s AD Mark Communications.
2. Briefly, the facts as alleged in the plaint are that the plaintiff is engaged in the business of printing and publication of newspapers Hindustan Times and Mint. The defendant is accredited with INS (Indian Newspaper Society). It had taken the services of the plaintiff for publishing advertisements for its clients in the publications of the plaintiff. It assured the plaintiff about the timely payments in terms of the invoices raised for the works carried out by the plaintiff. Pursuant to the representation and CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.1 of 6 assurances of the defendant, the plaintiff provided the services to the defendant and published the advertisements for its clients.As per the statement of accounts maintained by the plaintiff with the defendant, a sum of Rs. 29,41,047/- became outstanding against the invoices for the period from June 2017 to August 2017.
3. It is alleged that defendant failed to comply with its obligations and undertakings to clear the invoices of the plaintiff. It is stated that amount of Rs. 2,02,354/- and Rs. 2,46,330/- were also owed by the defendant to Hindustan Media Ventures Ltd and HT Music and Entertainment Co. Ltd. , group companies of the plaintiff in respect of which, the suits are pending. It is stated that defendant had sent a mail dated 21.11.2017 undertaking to clear the MRV outstanding by 05.12.2017 but it did not. Vide mail dated 21.11.2017, the defendant was called upon to pay the consolidated dues, total amounting to Rs. 31,43,401/- but the defendant did not make the payment. It then sent a legal demand notice calling upon the defendant to make the payment of the aforesaid dues, however the defendant failed to liquidate its liability. The plaintiff again sent a demand notice dated 03.09.2019 thereby demanding a principal sum of Rs. 29,41,047/- along with interest @18% per annum due on date.
4. It is stated that the transactions between the plaintiff and defendant are commercial in nature. As per general market practice, in such transactions, interest @18% is payable on delayed payments which is also stated on the invoices.
CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.2 of 6
5. Summons of the suit were sent to the defendant. The report . affidavit of service and the documents reveal that defendant was served on 10.07.2021. Despite service, it did not put its appearance within 10 days as contemplated under Order XXXVII CPC.
6. I have heard Sh. Amit Bajaj, ld. Counsel for the plaintiff and perused the record.
7. This suit in which the plaintiff has sought to recover liquidated demand in money payable by the defendant arises out of the invoices which the plaintiff had raised from the defendant from time to time in lieu of the services provided by it. It has maintained the statement of accounts.
8. As per Rule 3 of Order XXXVII CPC, the plaintiff shall together with the summons under Rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within 10 days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in court an address for service of notices on him.
In Rule 3 of Order XXXVII, the word 'shall' has been used meaning thereby that after receipt of summons of the summary suit, the defendant shall file an appearance either in person or by pleader, and the address for service of notice on him. In the instant case, the defendant was duly served of the summons in Form-4 in CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.3 of 6 Appendix B but despite that it did not file its appearance nor the address for service of notices on it.
8. Order XXXVII Rule 2 Sub Rule 3 provides that the defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the Court from time to time by rules made in that behalf and such decree may be executed forthwith.
9. Since in the instant case, the defendant did not put its appearance in terms of the aforesaid provision, the allegations in the plaint of the plaintiff are deemed admitted (M/s U.K Paints (India) Ltd v/s M/s Surlux Modi Equip Ltd, 94 (2001) DLT 453, Dolf Leading Ltd v/s Vijay Cables Industries, 2001 (60) DRJ 616, Syndicate Bank v/s Parerhat papers, 1994 1 AD (Delhi) 153 and Asea Brown Boveri Ltd v/s Goindwal Steel Ltd, 1992 (22) DRJ
144).
10. Averments/allegations made in the plaint and the documents show that the plaintiff had provided the services to the defendant by publishing the advertisements for its clients in its newspaper. The invoices and the statement show that a sum of Rs. 29,41,047/-
CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.4 of 6 became outstanding against the invoices for the period from June 2017 to August 2017. The amount carried an interest @18% as per the invoices which till the date of filing comes to Rs. 17,20,513/-. The plaintiff had requested the defendant vide mail dated 21.11.2017 to pay the consolidated dues but the defendant despite acknowledging vide mail dated 21.11.2017 and 10.08.2018 and undertaking to clear by 05.12.2017 did not make the payment.
11. In this case, there was never an issue or objection of the defendant in respect of the said publications or the invoices raised there upon. The amount was never disputed. The defendant did not respond to the legal notice nor paid the amount. The matter also went to pre-litigation mediation but the defendant did not make the payment.
12. Instant claim for a liquidated amount is based on the commercial agreement and the purchase/release order raised by the defendant and the consequent invoices raised upon the defendant constituting the written contract between the parties, after adjusting the amounts paid by the defendant as reflected from the statement of accounts maintained in the usual course of business (Squar Communications Pvt ltd v/s Ignou University, CS (OS)-07.09.2018, decided on 27.08.2018 and M/s Flint Group India Pvt ltd v/s M/s Good Morning India Pvt ltd, CM (M) No. 369/2017 decided on 12.04.2017).
13. As regards territorial jurisdiction of this court, a perusal of CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.5 of 6 Release orders and the invoices show that the orders were accepted by the plaintiff at Delhi. The invoices were approved and issued from the Delhi office of the plaintiff for payments. The payments were to be made in the account of the plaintiff at Delhi. All communications were made from the Delhi office of the plaintiff. Clause 6 of the Terms and Conditions of the invoice also provides that all claims are subject to the jurisdiction of Delhi courts. Thus, this court has territorial jurisdiction to entertain this suit.
14. As regards interest, the transactions are commercial in nature. Clause 5 of the terms and conditions on the invoice provides that 18% per annum interest is payable on delayed payments.
15. For the aforesaid discussions, the suit of the plaintiff is decreed in its favour with costs and against the defendant for 46,61,560/- along with pendentelite and future interest @ 18.00% (from the date of filing the suit till realization).
16. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court (Sanjiv Jain) today i.e. 16th November, 2021 District Judge (Commercial Court)03 New Delhi CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.6 of 6
CS (Comm) No. 68/21 HT Media Limited v/s AD Mark Communications Page No.7 of 6