Delhi District Court
Through Its Partner vs B2C Systems Pvt Ltd on 30 October, 2015
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IN THE COURT OF SH. SANATAN PRASAD
CIVIL JUDGE04(W), TIS HAZARI COURTS DELHI.
CS No.413/2013
M/s Narula Exports,
Narula's Tower1, 2nd Floor,
25, Central Market,
Punjabi Bagh, (West),
New Delhi 110026
Through its partner
Mr. Parveen Kumar Narula ..... Plaintiff
Versus
B2C Systems Pvt Ltd.
1, LGF, NRI Complex,
Mandakini Enclave,
Greater Kailash IV,
New Delhi - 110019
Through its Directors ..... Defendant.
SUIT FOR RECOVERY OF RS.1,45,000/ (RUPEES
ONE LAC FORTY FIVE THOUSAND ONLY)
CONSISTING OF THE PRINCIPAL SUM AND
INTEREST DUE AS ON 01.02.2013.
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Date of Institution : 03.04.2013
Date of reserving judgment : 30.10.2015
Date of Decision : 30.10.2015
Present: Ld. Counsel for the defendant .
Judgment:
1.The plaintiff has stated that it is running its business, in the name and style of M/s Narula Exports, from Narula Tower1, 2nd Floor, 25, Central Market, Punjabi Bagh (West), New Delhi and Sh, Praveen Kumar Narula, one of its partner has filed the present suit, as being competent to sign, file, institute and prosecute the same, who is even otherwise well conversant with the facts and circumstances of the present suit. It is further submitted that the defendant is a company, incorporated under the Indian Companies Act, 1956, and is engaged in the business of designing and providing web based software and submitted its quotation for providing customized web based software to the plaintiff vie email dated 28.06.2010
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and acting on the same the plaintiff placed a purchase order, dated 21.07.2010, making it clear to the defendant as per the terms and clause of purchase order P.O. Quote "If the software is unsuccessful and does not meet the requirements of the Narula's on any account, in that case advances will be returned by the B2C to Narula's" unquote but in the present case, the defendant even did not deliver the software, therefore, the plaintiff is entitled for refund of the advance given to the defendant.
2. It is also stated that the above said purchase order dated 21.07.2010, reference No.NE/PO/GEN/1011/84, for a sum of Rs.2,83,500/ was received and accepted by the defendant and plaintiff paid a sum of Rs. One Lac, as per the scheduled terms and conditions, as advance, through, the cheque, which was duly encashed by the defendant but the defendant failed to provide the service within the prescribed period or even after extention of the said period from time to time despite request and reminders made by the plaintiff, to the defendant from time to time, through
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mails and phone for providing the software in terms of purchase order but to no avail and therefore the plaintiff was constrained to cancel the purchase order, accordingly, vide its letter dated 21.11.2011 and sought refund of advance payment of Rs.One Lac, as above, but the defendant did not pay any heed to it and therefore, plaintiff issued a legal notice dated 27.02.2013, to the defendant, thereby calling upon the defendant to pay Rs. One Lac, alongwith interest amounting to Rs.45,000/ @ 18% p.a. within seven days of the receipt of notice but the defendant did not give any response to the said notice, nor paid any amount, hence, the present suit for passing of money decree in favour of the plaintiff and against the defendant for recovery of sum of Rs.1,45,000/ and also interest pendentelite and future, @ 18% p.a. from filing of the suit and till the realization, with cost.
3. The defendant has filed its reply/written statement in the matter and has pleaded that the defendant is registered trade mark owner of webbased self
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developed, Software Product, namely B2C_Drishti, registered under Clause9, having registry No.1873215, dated 14.10.09, from Trade Mark Registry, Government of India and a complete customized presentation was made to the plaintiff/directors/staff on 01.07.2010 and only when the plaintiff was completely satisfied with the said product, the purchase order dated 21.07.2010 with the condition of payment of Rs.One lac, as advance also another Rs.One lac after 100 days, approximately, and Rs.83,500/ after 180 days, approximately, which was inclusive of the 5% tax payment of Rs.13500/ was placed on the defendant and the warranty period, as per said purchase order was approximately 365 days and AMC @ Rs.45000/ per annum was to be paid after warranty period and since the product was ready to use web based software, delivered to the defendant within 30 days from the date of said purchase order and same was hosted and implemented on 27.08.2010 the plaintiff's Web Domain www.narulaexports.in and after hosting the said software the defendant on many occasions tried to inform the plaintiff who on one pretext or other
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started avoiding to take calls and even deliberately neglecting the balance payment and it was only the defendant, who was communicating with the plaintiff, requesting for the payment but the plaintiff deliberately neglected the same and thereafter sent a cancellation letter, having reference no.NE/201112/577, dated 24.01.2012, though, mentioned it 3rd Reminder and Final Reminder and also mentioning that the purchase order was cancelled, vide communication dated 21.11.2011 and it was only vide communication, dated 25.05.2011, that the plaintiff mentioned that there have been changes in their organization structure and they had hired another team so they wanted the defendant to completely change the software, as per their new requirements and host it at their office and local server and over and above the plaintiff was neither ready to pay the balance payment, nor to increase the price due to increase of scope of work and that too, almost after expiry of warranty period and on these grounds it is pleaded that the defendant was entitled for the balance payment of Rs.1,83,500/ and dismissal of the
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suit is prayed for .
3. Replication was not filed in the matter and the court, vide its order dated 27.07.2015 had framed the following issues for trial:
1.Whether the plaintiff is entitled for money decree for Rs.1,45,000/ (Rupees One Lac Forty Five Thousand only) as claimed in the suit? OPP
2.Whether the plaintiff is entitled for interest pendentelite and future and if so at what rate and for what period ? OPP
3.Relief;
And the matter has been fixed for leading entire PE on 30.10.2015 with the condition that copies of affidavits of PWs, being supplied to the counsel for the defendant against receipt and atleast 15 days before next date of hearing and on 30.10.2015 none has appeared for the plaintiff even on second call and Sh. Naveen Saxena, ld counsel for the defendant, appearing in the matter, has submitted that no advance copy was supplied to him and
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therefore, it was apparent that the plaintiff was not interested in leading any evidence in the matter, accordingly PE was closed in the matter and even the ld. Counsel for defendant also closed the DE in the matter and he has submitted that the suit must be dismissed as there is no evidence available on record and since none has appeared for the plaintiff no final arguments has been advanced by the plaintiff and therefore, I proceed to adjudicate upon the issues framed in the case as under :
ISSUE No.1:
4. This is an issue as to whether the plaintiff is entitled for money decree of Rs.1,45,000/ as claimed in the suit and burden of proof of this issue has been placed on the plaintiff who has miserably failed to discharge this burden in its favour, as no evidence has been led in, on record, for and on behalf of the plaintiff and as such this issue has to be decided in favour of the defendant and against the plaintiff and as such decided accordingly.
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ISSUE No.2:
5. This is an issue as to whether the plaintiff is entitled for interest pendentelite and future and if so, at what rate and for what period, again the burden of proof of this issue has been placed on the plaintiff and in view of my findings on the issue no.1, as above, there is no need to give any specific finding on this issue and even this issue has to be decided against the plaintiff and is decided accordingly, and it is held that the plaintiff is not entitled for any interest pendentelite and future whatsoever.
ISSUE No.3 :
6. This is an issue of relief and in view of my findings on the issues no.1 and 2, as above, the suit of the plaintiff is liable to be dismissed. I, therefore, hereby, dismiss the suit of the plaintiff with no order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
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Announced in open court Today, this 30th October, 2015.
(Sanatan Prasad) Civil Judge04 (West), THC, Delhi.
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