Delhi District Court
M/S Soheil Star Gmbh vs M/S Bajaj Infocom Pvt Ltd And Ors on 21 May, 2024
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) No. 571/2019
CNR No. DLWT010095452019
21.05.2024
M/s. Soheil Star GMBH
A company registered under
Germany Law, Having registered
Office at Heegburg 12, 22391,
Hamburg, Deutschland, Germany
Through its authorized representative/
Special Power of Attorney
Mr. Love Singh,
S/o. Mr. Karan Singh,
R/o. 2924, Peepal Mahadev,
Ballimaran, Delhi-110006
.....Plaintiff
Vs.
1. M/s. Bajaj Infocom Pvt. Ltd.
A company registered under
Indian Law, Having registered
Office at : S-21-B, Gali No. 12,
Anand Parbat Industrial Area,
New Delhi-110005.
2. M/s. Bajaj Holographics India Pvt. Ltd.
A company registered under
Indian Law, Having registered
Office at : S-21-B, Gali No. 12,
Anand Parbat Industrial Area,
New Delhi-110005.
3. Mr. Kapil Bajaj,
Managing Director of
M/s. Bajaj Infocom Pvt. Ltd. and
M/s. Bajaj Holographics India Pvt. Ltd.
And also in his individual capacity,
Having office at : S-21-B, Gali No. 12,
Anand Parbat Industrial Area,
New Delhi-110005.
CS (Comm.) No. 571/2019 -1-
All the above also at:-
Plot No. 150, Sector-6, IMT Manesar,
Gurugram, Haryana-122050.
All the above also at:-
Plot No. 343, Sector-8, IMT Manesar,
Gurugram, Haryana-122050.
....Defendants
Date of filing : 29.11.2019
Date of arguments : 20.05.2024
Date of judgment : 21.05.2024
SUIT FOR RECOVERY AND PERMANENT INJUNCTION
ALONGWITH PENDENTE-LITE AND FUTURE
INTEREST.
JUDGMENT:
1. Vide this judgment, I am deciding the suit for recovery and permanent injunction along with pendente-lite and future interest filed by the plaintiff against the defendants.
2. In the plaint, it is mentioned that the plaintiff is a company incorporated and constituted under the German Law. The plaintiff company has been established since 2010 under registration No. HBR 114454. The plaintiff company is engaged in the business of buying and supplying various machines in respect of Holographic equipment machines, having its registered office at Germany. It is mentioned that vide resolution passed by plaintiff company on 06.05.2019, Mr. Mohammadreza Ochyan, S/o Mr. Abbas has been authorized to file, institute and pursue suit against the defendants. Vide the said resolution Mr. Mohammadreza Ochyan has also been authorized to appoint and execute power of attorney in favour of Mr. Love Singh S/o Mr. Karan Singh. On the basis of the same Mr. Mohammadreza CS (Comm.) No. 571/2019 -2- Ochyan S/o Mr. Abbas came to India on 05.06.2019 and executed a power of attorney on 06.06.2019 in favour of Mr. Love Singh S/o Sh. Karan Singh. Mr. Love Singh also visited the offices of defendants with Mr. Mohammadreza Ochyan in respect to the transaction being subject matter of the present suit and for the reason that Mr. Love Singh S/o. Karan Singh is personally aware of the facts and circumstances of the present case. He is competent to sign, verify, institute and pursue the present suit on behalf of plaintiff company. The present suit is being filed, verified and instituted under the signature of Mr. Love Singh as authorized representative/ Attorney Holder of the plaintiff company in terms of Board Resolution of the plaintiff company dated 06.05.2019 and power of attorney dated 06.06.2019. The power of attorney dated 06.06.2019 in favour of Mr. Love Singh is duly notarized in Delhi before Mr. Madan Lal Gupta, Notary Public on 06.06.2019, vide entry No. 290/2019. Mr. Love Singh in terms of letter dated 02.01.2019 issued by plaintiff company, is also representative of plaintiff company in India. It is mentioned that defendants no. 1 & 2 are companies incorporated under Company Law, in India, having registered office in Delhi. The defendants no. 1 & 2 are managed by common Directors and are family run companies of defendant no. 3, who is holding the post of Managing Director of defendants no. 1 & 2, as per the information available on web site. The defendant no. 3 is being arrayed in the present suit, in his capacity as Managing Director of the defendants no. 1 & 2 and also in his individual capacity, in view of the fraud being perpetuated by him on the plaintiff company in respect to the transactions in question so that the defendant no. 3 can usurp the money of the plaintiff through his CS (Comm.) No. 571/2019 -3- family run companies. The plaintiff required Hologram Manufacturing Machines to be supplied to one of its client namely Plompin Sanat Company situated at Tehran, Iran. The plaintiff company found the defendants through internet, as manufacturer of such Hologram machines, in June, 2018 and email dated 28.06.2018 was sent to defendant no. 1. In furtherance of further communication over email, the plaintiff placed order for buying Holographic equipment to be supplied to said Plompin Sanat Company. All such emails were exchanged between Mr. Mohammadreza Ochyan on behalf of plaintiff company and with defendant no. 3. It is mentioned that on 16.08.2018, a Proforma Invoice No. BIL/0786/2018-19 dated 16.08.2018 was raised by the defendant no. 1 in favour of plaintiff, which was sent through email. It is submitted that as per the terms and conditions of the Proforma Invoice, the defendant no. 1, through defendant no. 3, committed that the Hologram Machines would be delivered after 60 days from the date of advance. The value of machine was fixed as Euro 80,800/-. The plaintiff deposited Euro 80,800 in the bank account of defendant no. 1 on 27.08.2018 and the receipt of such amount was acknowledged by the defendant no. 3, through email. It is further mentioned that after receipt of such advance payment of Euro 80,800 on 27.08.2018, the defendant no. 3 informed the plaintiff that the delivery of machine would be delayed by 90 days. It is further submitted that even after expiry of 90 days, the defendants refused to respond to the communications of the plaintiff and began to make excuses for the delay in delivery of machine. There has been various exchanges of emails and communication between Mr. CS (Comm.) No. 571/2019 -4- Mohammadreza Ochyan and defendant no. 3, over whatsapp in relation to the supply of machine, being subject matter of transaction in question. It is mentioned that plaintiff, fed up with false promises of the defendant no. 3 in making delay in supply of machines and also of not responding to the messages/ communications of the plaintiff. It is further mentioned that Mr. Mohammadreza Ochyan came to India in January, 2019 and met defendant no. 3 at Delhi and Gurugram offices of defendants on three occasions. It is mentioned that such visit of Mr. Mohammadreza Ochyan to India in January, 2019 was forced due to delaying tactics and non-responsive attitude on part of the defendants, due to which the plaintiff had to incur unnecessary expenses in flights, stay and local conveyance etc. of Mr. Mohammadreza Ochyan in such visit. Mr. Love Singh also visited the offices of defendants with Mr. Mohammadreza Ochyan during his visit to India in January, 2019 in respect to the transactions. It is mentioned that after making consistent follow up with the defendants, the defendant no. 3 as Managing Director of defendant no. 1, vide letter dated 17.01.2019, gave a new and revised schedule of dispatch of goods according to proforma invoice No. BIL/0786/2018-19 dated 16.08.2018, to the effect that machines alongwith necessary documents would be dispatched until 02.03.2019, where no penalties would be chaged upon defendants. It was further acknowledged in said letter dated 17.01.2019 that if delay continues after 15.03.2019, 50% penalty of total amount of proforma invoice would be paid to the plaintiff, as fine. It was further undertaken in letter dated 17.01.2019 that in case machines are not dispatched on 15.03.2019, total amount of proforma invoice in addition to 50% CS (Comm.) No. 571/2019 -5- of the whole amount would be paid as fine. It is mentioned that after 15.03.2019, the defendants sent some documents to Plompin Sanat Company, the consignee through Skynet, vide tracking no. 020001932246, which were received by the Consignee on 28.03.2019. The documents which were sent by defendants to the consignee Plompin Sanat Company were (I) purported "Bill of lading dated 14.03.2019", (ii) purported "certificate of origin dated 06.03.2019", (iii) purported "packing list dated 06.03.2019" and (iv) purported "Export invoice dated 06.03.2019". As per the plaintiff, the documents have been forged and fabricated by the defendant no. 3, on behalf of defendant no. 1 so as to avoid the liability to make refund of amount and payment of penalty, as undertaken by defendant no. 3 vide letter dated 17.01.2019. The purported bill of lading dated 14.03.2019 is forged, fake and fabricated which is apparent from the facts that (i) the said Bill of lading does not have any Agent's name over the same, (ii) it does not have any address over it of the agent, (iii) it does not bear any signature of the agent who lends/ booked the goods (iv) the alleged bill of lading does not bear any container number by which the goods have been allegedly shipped to the consignee i.e. "Plompin Sanat Co.". There are material facts/ irregularities in such purported bill of lading dated 14.03.2019, strange to shipping line, which reflects that the alleged bill of lading is nothing but a forged and fabricated document. The defendants till date have neither bothered to disclose the name of the agent through whom the goods have been shipped to the Consignee nor till date it has been made clear where the machines, alleged to be shipped vide above purported documents are available. The machines till date CS (Comm.) No. 571/2019 -6- has not reached to the consignee. The plaintiff has already conveyed its concern about such fake documents to the defendants. Now, it is disclosed to the plaintiff that defendant no. 1 had been never in business/activity of manufacturing Holographic Machines. It is only the defendant no. 2, who is involved in activity of manufacturing of Holographic machines, which is manufacturing at domestic level only. The defendant no. 3 is the Director (Managing Director) in both defendants no. 1 & 2 companies, who had committing cheating and fraud upon the plaintiff in taking the money towards the machines, in the name of defendants no. 1 & 2, without any intention to supply the machines, since inception. The plaintiff has also reliably learnt that the defendant no. 3 siphoned off the funds of defendants no. 1 & 2 companies for acquiring assets in his individual names and defendants no. 1 & 2 are involved in wrongful trading to the knowledge of the defendant no. 3, being the managing director of defendants no. 1 & 2. It is mentioned that vide email dated 04.05.2019 sent by plaintiff, the contract has been terminated and defendants were asked to return the amount received by them, with fine. It was clearly conveyed to the defendants that the goods/machines sought to be imported under the transaction are not required anymore. The defendant no. 3 had no intention to supply the machine since inception and defendant no. 3 was having malafide intention to cheat/defraud the plaintiff. As per the plaintiff, the defendant no. 3 has cheated and duped the plaintiff. The defendant no. 3 is also involved in day to day affairs of defendant no. 2. It is mentioned that amount has been paid in the account of defendant no. 1, in whose name purported bill of lading etc. were sent, however in view of the CS (Comm.) No. 571/2019 -7- fact that email was sent with email ID of defendant no. 2, including the initial email dated 28.06.2018, which is only disclosed to be manufacturer of Holographic Machines. It is mentioned that defendant no. 2 is made party in the present suit to avoid any technical objection. The plaintiff has initiated pre- litigation Mediation with the West District Legal Srevices Authority, Tis Hazari Courts, Delhi but no one appeared on behalf of defendants and proceeding was closed on 26.08.2019. The plaintiff has also made complaint to the SHO, PS- Anand Parbat on 20.10.2019. It is mentioned that plaintiff is entitled to refund of the advance payment and also entitled to 50% penalty, as undertaken to be paid vide letter dated 17.01.2019. The plaintiff is also entitled to expenses incurred by it in Visa charges on two occasions (in January and June, 2019 of Mr. Mohammadreza Ochyan), his travel expenses, Air Tickets, Hotel Expenses etc. for two visit to Delhi, India. It is mentioned that there has been Visa cost of 115 US $ from one side and amount of Rs. 2,40,000/- towards air tickets. The 50% penalty and other expenses comes to Euro 60,000. The defendants are deliberately and intentionally withholding such amount, so the plaintiff is also entitled to interest @ 24% per annum. The defendants failed to supply the machine. The plaintiff has learnt that no machine were sent for export as sought to be depicted vide document dated 06.03.2019 and bill of lading dated 14.03.2019. The plaintiff has prayed for a decree of Euro 140,800 (currently 1 Euro equal to 79.41 INR) be passed in favour of the plaintiff against the defendants. The plaintiff has also claimed pendentelite and future interest @ 24% per annum. The plaintiff has also prayed for a decree of permanent injunction, restraining the defendants, CS (Comm.) No. 571/2019 -8- its employees, representative etc. from selling, alienating, encumbering, mortgaging and creating any third party rights in any manner in respect of known/ unknown immovable properties and also immovable property bearing No. S-21-B, Gali No. 12, Anand Parbat Industrial Area, New Delhi-110005 and Plot No. 150, Sector-6, Gurugram, Haryana-122050.
3. The defendants no. 1 to 3 have filed written statement taking preliminary objections that the defendant no. 1 is a private limited company and acting through Mr. Kundan Jit Mauyar S/o Sh. Ghupteshwar Jit Mauyar, authorized representative of the company through the Board of resolution/ meeting of the Board of Directors of the company dated 13.02.2020. The defendant no. 2 is also a company run by the defendant no. 2 therefore, both are acting through Mr. Kundan Jit Mauyar. The plaintiff has concealed and suppressed the material facts. The present suit is an abuse of process of law. It is admitted that plaintiff approached the defendant for certain of goods delivered by the un-permissible modes from the answering defendant and the plaintiff already breached the oral agreement between the parties made out at the time of receiving of payment. The plaintiff wanted to deliver Hologram Manufacturing Machines to its client namely Plompin Sanat Co., situated at Tehran, Iran, thereafter, the defendants communicated to the AR of M/s. Sohel Star GMBH that the defendants had gone through the guidelines of the RBI that certain goods cannot be exported to Iran. Thereafter, the representative of plaintiff agreed to receive the goods in Germany and defendants received payment against performa Invoice No. BIL/0786/2018-19 from the CS (Comm.) No. 571/2019 -9- plaintiff. It is mentioned that after receiving the payment, the defendants prepared the equipments as per order of the plaintiff on time and goods were ready to be delivered in Germany. Thereafter, the plaintiff again contacted the defendants and now plaintiff wants that machine be delivered to the plaintiff's client namely Plompin Sanat Co., situated at Tehran, Iran but the same was already clarified that as per the guidelines of the RBI that the defendants were not having right to deliver the goods in Iran. In reply on merits, it is mentioned that defendants no. 1 & 2 are the companies which are run by the defendant no. 3 and having its registered office at S-21 B, Gali No. 12, Anand Parbat Industrial Area, New Delhi-110005. It is denied that the defendant's representative ever agreed to deliver Hologram Manufacturing Machines to the plaintiff's client namely Plompin Sanat Co., situated at Tehran, Iran. It is mentioned that no oral and written agreement was made out between the parties regarding the delivery of goods. It is further mentioned that as per conversation between the authorized representative of the plaintiff and the defendants the goods i.e. Hologram Manufacturing Machines has to be delivered upon the address of the plaintiff's company as the same is mentioned in the plaint itself. It is denied that documents of the answering defendants had been forged and fabricated by the defendant no. 3. It is mentioned that defendant always fulfilled their part of agreement. It is further mentioned that defendant had not committed any cheating or fraud upon the plaintiff in taking money of the machines. It is denied that defendant had no intention to supply the machines since inception. It is denied that the answering defendant siphoned off the funds of defendant nos. 1 & 2 companies for acquiring assets CS (Comm.) No. 571/2019 -10- in his individual names and defendants no. 1 & 2 and all the allegations have to be proved against the answering defendants. It is mentioned that the defendants fulfilled their duties but vide email dated 04.05.2019 sent by the plaintiff, the contract has been terminated and the defendants were asked to return the amount received by them. It is also mentioned that the plaintiff contacted the defendants and stated that machines will be delivered to plaintiff's client namely Plompin Sanat Company situated at Tehran, Iran but same has already been clarified to the plaintiff that as per RBI Guidelines the defendant has no right to deliver the goods in Iran. The plaintiff has clearly conveyed to the defendant that the goods/ machines are not required any more. As per the defendants, they have intention to supply the machines because they have good reputation in the market. As per the defendants, there was no ground to make complaint to the SHO, PS- Anand Parbat, Delhi. The plaintiff has no right to asked the defendants for refund of advance payment of Euro 80,800,15 or to seek any penalty. The plaintiff is not entitled to any expenses incurred by Mr. Mohammadreza Ochyan during his visit to India on two occasions. Other averments of the plaint are denied. Dismissal of suit is prayed by the defendants.
4. Plaintiff has filed replication and controverted the allegations made in the written statement and further reaffirmed the averments made in the plaint.
5. On the basis of pleadings of the parties, following issues were framed by my Ld. Predecessor on 02.06.2022, which are as under:-
CS (Comm.) No. 571/2019 -11-1) Whether the plaintiff is entitled for recovery of Euro 140,800 (@ 79.41 per Euro) ? (OPP)
2) Whether the plaintiff is entitled for pendent-lite and future interest @ 24% per annum ? (OPP)
3) Whether it was the plaintiff who had breached the contract ? (OPD)
4) Relief.
5. In evidence plaintiff has examined its AR Sh. Love Singh as PW-1. This witness has filed affidavit on the lines of plaint. This witness has proved copy of first page and other pages of passport of Mr. Mohammadreza Ochyan as Mark-A, copy of extracts of Board Resolution passed by the plaintiff company on 06.05.2019 as Mark-B, Special Power of Attorney dated 06.06.2019 as Ex. PW-1/2, copy of first page of passport of PW- 1 as Mark-C, letter dated 02.01.2019 as Mark-D, the record regarding the description of plaintiff company with its translation as Mark-E, description of defendants no. 1 & 2 as per concerned ROC available online as Ex. PW-1/6, proforma invoice No. BIL/0786/2018-19 dated 16.08.2018 raised by defendant no. 1 in favour of the plaintiff through email as Ex. PW-1/7, the record in respect of payment/ transfer of 80,800 Euro to the bank of defendant no. 1 as Ex. PW-1/8. This witness has also proved emails dated 28.06.2018, 25.08.2018, 28.08.2018, 03.01.2019, 07.01.2019 & 01.05.2019 as Ex. PW-1/10 (colly), screen shots of whatsapp communication and whatsapp communication as Ex. PW-1/11 (colly), original letter dated 17.01.2019 signed by defendant no. 3 as Ex. PW-1/12, original envelope sent by defendants as Ex. PW-1/13, certificate of origin sent by CS (Comm.) No. 571/2019 -12- defendants as Ex. PW-1/14, packaging list sent by the defendant as Ex. PW-1/15, export invoice dated 06.03.2019 as Ex. PW- 1/16, bill of lading dated 14.03.2019 as Ex. PW-1/17, Non Starter Report as Ex. PW-1/18, copy of criminal complaint dated 20.10.2019 as Ex. PW-1/19, Online record regarding exchange rate of Euro Indian Rupees as Mark-F, certificate/ affidavit dated 28.12.2022 of Director of plaintiff as Ex. PW-1/21, envelope through which the records of Ex. PW-1/21 were received at Delhi as Ex. PW-1/22, extract of Board resolution dated 09.12.2022 as Ex. PW-1/23 (Colly), original envelope by which the documents Ex. PW-1/23 were received in India as Ex. PW-1/24.
This witness is duly cross examined by Ld. Counsel for defendant. During cross examination this witness has stated that in the year, 2015, he went to Iran for wrestling, where he met both the directors of the plaintiff company namely Mr. Tauraj Abadi and Mr. Ali Reza Abadi. This witness has admitted that plaintiff company is a German company and plaintiff company is engaged in the business of export-import of electronics goods. This witness has clearly stated that he is aware about the dealings of the plaintiff company with various other countries. This witness has admitted that he never involved in the business transactions of the plaintiff company. He has voluntarily stated that he is aware about the transaction of the present case as Mr. Tauraj Abadi, one of the Director of the plaintiff company had asked him to verify about the credentials of the defendants and accordingly, he visited the office premises of both the defendants and gave report to the director of the plaintiff company. This witness has stated that Mr. Kapil Bajaj and Mamta Bajaj are Directors of both defendants no. 1 & 2. This witness has stated CS (Comm.) No. 571/2019 -13- that plaintiff company had placed orders with the defendants company for a holographic machines. He has stated that defendants had never shown machine to him. This witness has stated that the money transaction between the plaintiff and defendant had taken place on 27.08.2018 and machine was to be delivered in Tehran. This witness has stated that he has no knowledge that even if the defendant company wanted to send the machine to Iran but it was not permissible as the BRC (Bank Realization Certificate) could not be cleared. This witness has admitted that money to supply the machine was sent by the plaintiff to the defendant from Germany.
6. Plaintiff has also produced Sh. Mohammadreza Ochyan as PW-2. This witness has filed affidavit in evidence on the lines of plaint. This witness has proved copy of earlier passport as Mark- A. This witness is duly cross examined by Ld. Counsel for defendants. During cross examination, this witness has admittd that plaintiff company is registered in Germany and Mr. Tauraj Abdi and Mr. Ali Raza Abdi are the Directors of the plaintiff company. This witness has admitted that he has not placed on record any document showing his travel to India in the year, 2019. This witness has admitted that he was not having any communication with the defendant company prior to 01.05.2019. This witness has admitted that the plaintiff company wanted to purchase the Holographic Machine from the defendant. He has stated that the plaintiff company placed the order for purchase of machine from Germany. He has admitted that in the proforma invoice Ex. PW-1/7, there is no mention that machine is to be supplied to Iran. This witness has voluntarily stated that same CS (Comm.) No. 571/2019 -14- was communicated through email that the machines are to be supplied to Iran. This witness has denied that there was a restriction to supply the machine/goods to Iran from a company registered in India. This witness has admitted that proforma invoice Ex. PW-1/7 does not mention about the supply of machine to Plompin Sanat Company situated at Tehran. This witness has denied that Whatsapp communication Ex. PW-1/11 (colly) is fabricated. This witness has voluntarily stated that he has brought the mobile phone from which the aforesaid whatsapp communication was done with him by the defendant.
7. Plaintiff has also produced Sh. Alireza Shiraziyani S/o Mr. Mahdi as PW-3. This witness has filed affidavit in evidence. This witness is duly cross examined by Ld. Counsel for defendants. During cross examination, this witness has stated that plaintiff company belongs to friend of his boss and the plaintiff company had business relations with his Boss's company. This witness has admitted that on proforma invoice Ex. PW-1/7, the name of Plompin Sanat is not mentioned to whom the machine was to be supplied.
8. Plaintiff has also produced WHC Rukmani, PS- Anand Parbat as PW-4. This witness has proved copy of the criminal complaint by the plaintiff alongwith the inquiry report as Ex. PW-4/1. This witness is cross examined by Ld. Counsel for defendants. Plaintiff has also produced SI Subhash Chander, DCP office, Daryaganj, Delhi as PW-5. This witness has proved RTI filed by Sh. Love Singh and record as Ex. PW-5/1 (colly).
CS (Comm.) No. 571/2019 -15-This witness is also cross examined by Ld. Counsel for defendants.
9. On the other hand, defendants have examined Sh. Kapil Bajaj, Managing Director of Bajaj Infocom Pvt. Ltd. and Bajaj Holographic India Pvt. Ltd. as DW-1. This witness has filed affidavit on the lines of written statement. This witness is duly cross examined by Ld. Counsel for plaintiff. During cross examination, this witness has stated that Mr. Ali Raza Shranjani approached firstly to him for the purchase of the machines in question from Iran. This witness has stated that apart from the Whatsapp and email communications, there also used to be telephonic conversation between the parties in respect to the transactions in question. This witness has stated that the said communications used to take place only with Mr. Ali Raza Shranjani. This witness has stated that his mobile number for the said Whatsapp conversation was 9810156578. This witness has admitted that he also used to make Whatsapp communication with Mr. Mohammadreza Ochyan. He has voluntarily stated that this communication used to take place after very belated stage after the payment was made. This witness has admitted that plaintiff had made a complaint against the defendant in the PS- Anand Parvat. This witness has admitted that he had joined the inquiry of that complaint. This witness has stated that he is not sure as to whether he is still in possession of email dated 08.08.2018 submitted to the concerned police officer during inquiry of the above mentioned complaint. During cross examination document Mark- X1 was put to the witness and witness after seeing the same submits that he is not aware CS (Comm.) No. 571/2019 -16- whether this email was received by the defendant from plaintiff or not. This witness has admitted that in January, 2019 Mr. Mohammadreza Ochyan visited India and came to his office. During cross examination document Ex. DW-1/PX-1 was put to the witness and witness has stated that this document is in his handwriting but he denied signature at point- A. This witness has stated that he has not gone through the Whatsapp conversation between Mr. Mohammadreza Ochyan and him which is Ex. PW-1/11 (colly). This witness has admitted that in the Whatsapp conversation the plaintiff was regularly asking for photo of the machines. This witness has stated that he had sent photo of machine to Mr. Mohammadreza Ochyan. This witness has stated that he had sent the documents to the CHA to inquire whether the defendant can send the machine to Iran or not. This witness has stated that he had conveyed the plaintiff at the initial stage of the transactions that defendant cannot send machine in question to Iran when the payment is being received from Germany. This witness has admitted that defendant had not placed on record any document to show that machines were ready and expenses have been incurred on the machine. This witness has admitted that the machines in question had to be supplied by him within 60 or 75 days and this period starts from the day of receiving of payment by the defendant. This witness has stated that initially the plaintiff has placed order of five machines and thereafter, order was changed for only one machine. This witness has admitted that initially Ex. PW-1/7 was sent by the plaintiff to them thereafter revised proforma was sent by the plaintiff. He has stated that the letter head of Ex. PW-1/12 pertains to their company. This witness has statd that the CS (Comm.) No. 571/2019 -17- packaging list Ex. PW-1/15 & Export invoice Ex. PW-1/16 might have been sent by the defendant to the plaintiff. This witness has stated that he has no idea if Ex. PW-1/17 which is bill of lading was sent by the defendant to the plaintiff or not. This witness has stated that the defendant might have sent the certificate of origin, packaging list, export invoice and draft copy of bill of lading to the plaintiff to Iran. This witness has stated that he does not remember if he had sent the above mentioned documents on the Whatsapp of Mohammadreza Ochyan or not. He has admitted that defendant had not sent any letter or communication to the plaintiff after email dated 04.05.2019 that the machines were ready on the part of the defendant.
Defendants have also produced Sh. Roshan Kumar S/o Sh. Mahavir Mehta as DW-2. This witness has proved letter sent by Branch Manager, ICICI Bank as Ex. DW-2/1. This witness is cross examined by Ld. Counsel for plaintiff.
10. I have heard Ld. Counsels for both the parties at length and perused the record carefully.
11. My issue-wise findings are as under:-
12. First of all, I am deciding issue no. 3.
Issue No. 3- Whether it was the plaintiff who had breached the contract ? (OPD) The burden to prove this issue is upon the defendants. It is the contention of Ld. Counsel for defendants that it is the plaintiff, who has breached the contract and has sent email dated CS (Comm.) No. 571/2019 -18- 04.05.2019, vide which the plaintiff sought refund of the amount and also communicated that plaintiff is not in the requirement of machine any more as per contract. It is contended by ld. Counsel for defendants that defendant no. 1 was always ready to perform its part of contract and plaintiff has himself sent email dated 04.05.2019 and put end to the contract.
In the present case, the proforma invoice is admitted by the defendants. The defendants have also admitted to receive payment from the plaintiff. It is also contended by Ld. Counsel for defendants that plaintiff of its own had put the end to the contract and now plaintiff is not entitled to any amount from the defendants. In the present case, as per Whatsapp conversations the plaintiff is asking about the machine and Mr. Mohammadreza Ochyan is inquiring as to whether machine has been manufactured or not. From the Whatsapp conversations, it is clear that PW-2 is asking the defendant no. 3 about the machine and defendant no. 3 is assuring the plaintiff that he has sent the shipment via local agent and also assured to PW-2 that shipment is on its ways to Iran. In whatsapp conversation dated 17.04.2019, defendant no. 1 has stated that he had no idea by which way the shipping company is managing the shipment. In whatsapp conversation dated 23.04.2019, defendant no. 1 has stated that your shipment is not in one container.
So, when the machines were not delivered to the plaintiff then plaintiff sent email dated 04.05.2019. I am of the view that plaintiff has sent email dated 04.05.2019 asking the defendant to refund the payment when the machine was not supplied by the defendants to the plaintiff. Moreover, it is no where made clear by the defendants that machine was ready and defendants were CS (Comm.) No. 571/2019 -19- ready to send the machine either to Germany or Iran. The whatsapp conversations between PW-2 and defendant shows that defendant was making false promises that it has sent the machine to Iran. I am of the view that defendants are not able to prove this issue. Accordingly, Issue no. 3 is decided in favour of the plaintiff and against the defendants.
13. ISSUE NO. 1 - Whether the plaintiff is entitled for recovery of Euro 140,800 (@ 79.41 per Euro) ? (OPP) The burden to prove this issue is upon the plaintiff.
14. At the very Outset, I may observe that the provisions of Section 2 (1) (c)(xviii) of Commercial Courts Act, 2015 are very clear which reads as under:-
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipments and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce.
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreement;
(xii) shareholders agreements;CS (Comm.) No. 571/2019 -20-
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv)partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreement for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
15. The provisions of Section 2 (1) (c) (xviii) of Commercial Courts Act as above are very much clear. Sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee may be oral or written. Therefore, the facts which alleged in the plaint comes under the Commercial disputes.
16. Secondly, now the question arises whether this Court has the pecuniary jurisdiction to adjudicate the matter which is dispute. In this regard, the provisions of Section 3 of Commercial Courts Act, 2015 provides that:
Section 3 : Constitution of Commercial Courts:CS (Comm.) No. 571/2019 -21-
(1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary. ] 3[1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.]
17. Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs. 3,00,000/-. In the present case, the claim amount which is shown in the plaint is Euro 140,800 (currently 1 Euro equal to Rs. 79.41). So, the present suit falls in the category of Commercial Suit.
18. Now, I am dealing with contentions raised by Ld. Counsel for defendants one by one.
CS (Comm.) No. 571/2019 -22-19. It is contended by Ld. Counsel for defendants that the present suit has been filed without any authority from the plaintiff. The plaintiff is stated to be a company registered in Germany. It is stated that the company has given authority in favour of Mr. Mohammadreza Ochyan, who had further executed power of attorney in favour of Mr. Love Singh. The plaintiff has not filed the said original Attorney and had taken the plea that the original has been lost. The document placed on record required to be stamped under Indian Law and the requirment of Section 18 of the Stamp Act has to be fulfilled otherwise document cannot be considered by this Court.
PW-1 has placed on record the certified true copy of the resolution passed by the Board of Directors of M/s. Soheil Star GMBH in its meeting held on 06.05.2019 at its registered office at Heegbarg 12, 22391, Hamburg, Germany. Vide this resolution, the plaintiff company has resolved that plaintiff would be represented by Mr. Mohammadreza Ochyan,S/o Mr. Abbas (holding passport No. W46297415 issued by Islamic Republic of Iran), of M/s. Soheil Star GmbH, whose specimen signature are attested below, and Mr. Mohammadreza Ochyan is authorized to file, institute, sign, verify plaint, replies, criminal complaints, insolvency proceedings and purse the said suit for recovery/ criminal proceedings. PW-1 has also proved the Special Power of Attorney dated 06.06.2019 executed by PW-2 in favour of PW-1 authorizing him to file institute, sign, verify plaints, replies, criminal complaints and pursue the said civil suit for recovery / criminal case / complaint, insolvency proceedings under the provisions of law in force in India, to sign, swear, CS (Comm.) No. 571/2019 -23- depose, affidavit, vakalatnama, to depose before the Hon'ble Court of justice/ Tribunal/ Superior Courts on behalf of the company. The attorney is authorized to sign, file and take back documents. The attorney is also authorized to appoint advocate and also to sign the vakalatnama and other documents for that purpose. The attorney is authorized to give statement on oath and present/ exhibit all the necessary documents before any court or authorities in which such case is tried or heard. The attorney is authorized to submit to Mediation/ arbitration any differences or disputes that may arise connected in any manner related to the abovesaid matter. The attorney is authorized to withdraw or compromise any of the court case or submit to Mediation/ arbitration any differences or disputes that may arise touching or in any manner and to generally to do all the acts deed and things for and on behalf of the Executant for the court/tribunal cases and for settlement of disputes in respect of the abovesaid matter, as the above said attorney may deem fit and proper. PW-1 has also proved on record certificate dated 28.12.2022 of the Executive Directors of plaintiff company and vide this document Mr. Touraj Abdi, Executive Director of Soheil Star GMBH authorizing Mr. Mohammadreza Ochyan to file, institute and pursue suit against the defendants. The detailed powers given to Mr. Mohammadreza Ochyan are duly stated in resolution dated 06.05.2019. It also mentioned that vide resolution dated 06.05.2019, Mr. Mohammadreza Ochyan was also authorized by company to appoint and execute power of attorney in favour of Mr. Love Singh as the authorization dated 02.01.2019 and resolution dated 06.05.2019 and letter dated 02.01.2019 as shared by the company with Mr. Mohammadreza Ochyan and Mr. Love singh are not CS (Comm.) No. 571/2019 -24- traceable with the company. The executive Director of the plaintiff company confirmed and ratified the powers given to Mr. Mohammadreza Ochyan and Mr. Love singh under the resolution dated 06.05.2019 and letter dated 02.01.2019. They also ratified all the acts/ actions taken by Mr. Love Singh and also Mr. Mohammadreza Ochyan on the basis of letter dated 02.01.2019.
Plaintiff has also placed on record the extract of board of meeting dated 09.12.2022 as Ex. PW-1/23 (colly). In this resolution, it is mentioned that vide resolution dated 06.05.2019 Mr. Mohammadreza Ochyan was made authorized person on behalf of the company, with authority to file, institute and pursue suit against the said persons. Vide said resolution dated 06.05.2019, Mr. Mohammadreza Ochyan was also authorized by company to appoint and execute power of attorney in favour of Mr. Love Singh, having Indian Passport No. S1537070 and based on the same, Mr. Mohammadreza Ochyan, S/o Mr. Abbas executed a Special Power of Attorney on 06.06.2019 in favour of Mr. Love Singh. Vide letter dated 02.01.2019, Mr. Love Singh was also made authorized representative of the Company in India. It is also mentioned that the authority given to Mr. Mohammadreza Ochyan and Mr. Love singh vide resolution dated 06.05.2019 and letter dated 02.01.2019 is still valid and has not been revoked till date. It is also mentioned that civil suit and legal action already instituted and initiated by Mr. Love Singh, under his signature, on behalf of the Company, on the basis of authorization dated 02.01.2019, resolution dated 06.05.2019 and Special Power of Attorney dated 06.06.2019 executed by Mr. Mohammadreza Ochyan in favour of Mr. Love singh is hereby further confirmed and ratified, for removal of any doubts.
CS (Comm.) No. 571/2019 -25-Plaintiff also placed on record authority letter dated 08.12.2022 issued by plaintiff company in favour of Mr. Mohammadreza Ochyan that he is our representative in India and he has authority to survey all the matters legally what they negotiated and dealt with Bajaj Infocom Pvt. Ltd. Plaintiff has also placed on record authority letter dated 08.12.2022 issued by plaintiff company in favour of Mr. Love Singh that he is our representative in India and he has authority to survey all the matters legally what they negotiatd and dealt with Bajaj Infocom Pvt. Ltd. In the present case, Mr. Love Singh appeared in evidence as PW-1 and Mr. Mohammadreza Ochyan appeared as PW-2. I am of the view that present suit is filed by duly authorized person.
20. In the present case, plaintiff approached the defendant for supply of machine vide email dated 28.06.2018 and proforma invoice dated 16.08.2018 was raised by the defendant no. 1 in favour of plaintiff, as per which the machines were to be delivered within sixty days from the date of advance payment. Thereafter, payment of 80800 Euros, being the full amount of the transaction/machines, made by the plaintiff in the bank account of defendant no. 1 on 27.08.2018. The machines were not supplied and vide email dated 04.05.2019, the plaintiff terminated the supply/ contract and return of amount was sought from the defendants with penalty. During cross examination, DW-1 has admitted that PW-3 approached firstly to him for the purchase of the machines in question from Iran. DW-1 has also admitted regarding issuance of proforma invoice dated 16.08.2018 which is proved on record as Ex. PW-1/7. The CS (Comm.) No. 571/2019 -26- defendant has also admitted regarding receipt of payment of 80800 Euros from the plaintiff. DW-1 has admitted to issue proforma invoice No. BIL/0786/2018-19 dated 16.08.2018 and as per this document delivery was to be effected within 60 days from the date of advance. Prior to this PW-3 wrote email to the defendant no. 3 about the machine and defendant no. 3 has also sent reply.
21. The main defence of defendants is that defendant no. 1 was ready to deliver the machine but to due RBI guidelines, machines could not be exported to Iran directly, so that defendant was not in a position to export the machine in question to Iran. It is contended by ld. Counsel for defendants that defendant no. 1 was not aware about any guidelines of Government of India and defendant produced Sh. Roshan Kumar, S/o Sh. Mahavir Mehta, Eros Corporate Park, IMT Manesar Sector-2, Haryana as DW-2. This witness has proved letter Ex. DW-2/1. It is also contended by Ld. Counsel for defendants that as the defendant no. 1 could not export the machines to Iran and the performance of contract became impossible or impracticable due to events beyond the control of the parties and the contract became void as per Section 56 of Indian Contract Act.
On the other hand, Ld. counsel for plaintiff has contended that defendant no. 1 agreed to send the machine to Iran but defendant no. 1 kept on delaying the matter and did not send the machine. In the Whatsapp conversation between PW-2 and defendant no. 1, defndant no. 1 has admitted to send the machines and bill of lading. The bill of lading sent by the defendant was found to be fake. The plaintiff has filed certificate CS (Comm.) No. 571/2019 -27- of origin, packaging list, export invoice and bill of lading sent by the defendants to the plaintiff. Ex. PW-1/15 is packing list sent by defendant no. 1, wherein the description of machine is mentioned and export invoice which is proved on record as Ex. PW-1/16 shows that goods to be exported from India to Iran. The plaintiff has also placed on record bill of lading which is Ex. PW-1/17.
Ld. Counsel for plaintiff has drawn my attention towards the Whatsapp conversations between PW-2 and defendant no. 3. In conversation, the PW-2 is stating to the defendant no. 1 that bill of lading is fake as no container number is mentioned in bill of lading and there is reply on behalf of defendant no. 1 that bill of lading is third paty bill of lading and shipment will come via not directly. The defendant no. 1 has also stated that once the shiping company declare the agent in Iran, they will inform to the buyer and seller directly. In one conversation dated 17.04.2019, defendant no. 1 has replied that defendant sent the shipment via local agent not directly by shipping due to sanctions. This conversation shows that defendant is making false promises that it has sent the machine to Iran and even also issued certificate of origin, packaging list, export invoice and bill of lading. The Whatsapp conversation clearly shows that defendant has assured the plaintiff that it had exported the machine to Iran, though no machine was sent to Iran.
It is contended by Ld. Counsel for defendants that these whatsapp conversations cannot be taken into consideration.
I have perused the testimony of PW-2. During cross examination, this witness has stated that he has brought the CS (Comm.) No. 571/2019 -28- mobile phone from which the aforesaid communication was done with him, which can be seen in reference to the whatsapp conversations. This witness has also shown his mobile phone to the counsel for defeneant containing the whatsapp conversations. Even PW-1 has also filed certificate u/s 65-B of the Evidence Act that he has taken print out/ screen sots of whatsapp conversation between defendant no. 3 and PW-2. I am of the view that the contention of Ld. Counsel for defendant is devoid of any merit.
22. From the documents Ex. PW-1/14 to Ex. PW-1/17, it can be inferred that defendant has to send the machine to the final destination of Iran from New Delhi and in the whatsapp conversation the defendant no. 3 has even told the plaintiff that he has already sent the machine to Iran. I am of the view that defendant no. 3 has admitted in the whatsapp converation that he has already sent the machine to Iran and also issued documents Ex. PW-1/14 to Ex. PW-1/17. The defendant has no where denied regarding issuance of documents Ex. PW-1/14 to Ex. PW-1/17 nor it is the stand of the defendant that these documents were not sent by him to the plaintiff. I am of the view that defendant has agreed to supply the machine from India to Iran and no letter has been sent by the defendant to the plaintiff informing the plaintiff that defenant is not in a position to send the machine to Iran. As the defendant has no where denied to send documents Ex. PW-1/14 to Ex. PW-1/17, I am of the view that the defendant has raised false defence that it could not sent/export machine to Iran to evade the liability of refund of payment. I am of the view, this contention of the Ld. Counsel for the defendant carries no force.
CS (Comm.) No. 571/2019 -29-23. The next contention raised by ld. Counsel for defendants is that the present suit has been filed for recovery of amount in Euro currency and plaintiff should have filed the suit in Indian currency and the present suit is not maintainable.
Ld. Counsel for plaintiff has placed reliance on judgment titled as "D.Z. Bankag Deutsche Zentral- Genossenschafsbank Frankfurt Am Main Formerly D.B. Bank Vs. Wasan and Co. And Ors." passed by Hon'ble High Court of Allahabad, wherein, it is held that "the plaintiff-respondent instituted the said suit for recovery for a sum of DM. 1072527.72 in a foreign currency with interest and other ancillary reliefs".
I am of the view that defenant has received payment from the plaintiff and defendant has admitted to receive this amount from the plaintiff. I am of the view that this contention of Ld. Counsel for defendants carries no force.
24. It is contended by Ld. Counsel for defendants that plaintiff has wrongly made defendants no. 2 & 3 as a party.
I have perused the record. Preusal of file reveals that documents Ex. PW-1/14 to Ex. PW-1/17 were issued by the defendant no. 1. The defendant no. 3 is Managing Director of the defendant no. 1. The proforma invoice No. BIL/0786/2018-19 dated 16.08.2018 was issued by defendant no. 1 and documents Ex. PW-1/14 to Ex. PW-1/17 were also issued by the defendant no. 1. I am of the view that plaintiff has wrongly impleaded defendants no. 2 & 3 as a party. Reliance can be placed on judgment titled as judgment tiled as "Sanjiv Kumar Mittal v.
CS (Comm.) No. 571/2019 -30-Deputy Commissioner (TRC)" passed by Hon'ble High Court of Delhi, wherein, it is held that "Director cannot be made personally liable for the dues of the company in the absence of a specific provision stating otherwise". As per Order 1 Rule 9 CPC, no suit can be defeated by reason of mis-joinder or non- joinder of parties. Thus, this contention of Ld. Counsel for defendants carries no force.
25. It is contended by Ld. Counsel for defendant that plaintiff has claimed 50% of the total amount of 80800 Euros as penalty. It is also contended by Ld. Counsel for defendant that the plaintiff has not pleaded nor proved that any damages were suffered by the plaintiff due to non-supply of machine by the defendants.
On the other hand, Ld. Counsel for plaintiff submits that defendant no. 1 has sent letter dated 17.01.2019 to the plaintiff and vide this letter the defendant no. 1 had undertaken that it will supply the machine alongwith necessary documents until 02.03.2019 where no penalties will be charged, otherwise if the delay continues after March 15th, we will pay 50% penalty of the total amount of proforma invoice to you as a fine. It is also mentioned that in case machines are not dispatched on 15 th March, we will pay the total amount of the proforma invoice in addition to 50% of the whole amount as a fine. It is also contended by ld. Counsel for plaintiff that defendant has also admitted to sign Ex. DW-1/PX-1 dated 15.01.2019. This document was put to the witness DW-1 during cross examination and this witness has admitted that document in his handwriting. As DW-1 has admitted that the documents Ex. DW-1/PX-1 is in CS (Comm.) No. 571/2019 -31- his handwriting and in this document, it is mentioned that in case we fail to deliver the order by 15th March, 2019, we will refund your 80800 Euros with penalty.
It is correct that there was no agreement regarding penalty clause. Section 73 of the Indian Contract Act reads as under:-
73. Compensation of loss or damage cause by breach of contract:- When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damages sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract: When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation : In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by non-performance of the contract must be taken into account.
As the plaintiff has not pleaded nor produced any evidence, he suffered any damages in respect of non-supply of machine by the defendant. I am of the view that if any letter is written by the defendant that if it fails to deliver the goods till 15.03.2019, then it will liable to pay 50% of the penalty to the amount paid by the plaintiff. Thus, this contention of Ld. Counsel for defendants carries force, as plaintiff has not claimed any breach of contract and rather plaintiff has himself written CS (Comm.) No. 571/2019 -32- email dated 04.05.2019 and demanded the refund of amount. I am of the view that plaintiff is not entitled to any damages/penalty.
26. In the plaint, plaintiff has also claimed expenses incurred on Visa charges on two occasions (in January & June, 2019 of Mr. Mohammadreza Ochyan), his travel expenses, Air Tickets, Hotel Expenses etc. for two visits to Delhi, India. It is also mentioned that there has been visa cost of 115 US $ from one side and an amount of Rs. 2,40,000/- towards air tickets.
Plaintiff has not placed on record any Air Ticket, any hotel bill or any receipt to show that he has incurred expenses on travel to India. In absence of any document, it is not proved that amount has been spent by PW-2 on his travel and visa cost. During cross examination, PW-2 has admitted that he has not placed on record any document showing his travel to India in the year, 2019.
27. PW-1 during cross examination stated that the money transaction between the plaintiff and defendant had taken place on 27.08.2018 and machine was to be delivered in Tehran. DW-1 during cross examination has admitted that Mr. Ali Raza Shranjani approached firstly to him for the purchase of the machine in question from Iran. This witness has also admitted that apart from the whatsapp and email communications, there also used to be telephonic conversation between the parties in respect to the transactions in question. This witness has admitted that he used to make whatsapp communication with Mr. Mohammadreza Ochyan. This witness has admitted that the CS (Comm.) No. 571/2019 -33- plaintiff had made a complaint against the defendant in PS- Anand Parvat. This witness has admitted that in the whatsapp conversation the plaintiff was regularly asking for photo of the machine. This witness has also admitted that machine in question had to be supplied by him within 60 or 75 days. This witness has admitted that initially Ex. PW-1/7 was sent and thereafter, revised proforma was sent. This witness has stated that packaging list Ex. PW-1/15 and Export invoice Ex. PW-1/16 might have been sent by the defendant to the plaintiff. This witness has also stated that he has no idea if Ex. PW-1/17 which is bill of lading was sent by the defendant to the plaintiff or not. This witness has stated that he did not remember, if he had sent the above mentioned documents on the Whatsapp of Mohammadreza Ochyan or not. This witness has admitted that defendant had not sent any letter or communication to the plaintiff after email dated 04.05.2019 that the machine was ready on the part of the defendant. I am of the view that in view of the admission made by defendant, the plaintiff is entitled to refund of Euros 80800 from the defendant no. 1. The plaintiff has placed on record document Mark-F to show that 1 Euro was equivalent to Rs. 79.41 at the time of filing of present suit. The defendant has not given any suggestion to the PW-1 or any other witness that 1 Euro was not amounting to Rs. 79.41 at the time of filing of present suit. I am of the view that plaintiff is entitled to recover Euros 80800 from the defendant no. 1 only and in Indian currency value of Euros 80800 comes to Rs. 64,16,328/-. The plaintiff is able to prove this issue and according issue no. 1 is decided in favour of the plaintiff and against the defendant no. 1.
CS (Comm.) No. 571/2019 -34-28. ISSUE NO. 2 - Whether the plaintiff is entitled for pendent- lite and future interest @ 24% per annum ? (OPP) The burden to prove this issue is on the plaintiff. The plaintiff has claimed interest @ 24% per annum. Plaintiff has ot placed on record any agreement between the parties to show that plaintiff is entitled to interest @ 24% per annum. It is admitted fact that vide email dated 04.05.2019 plaintiff has informed the defendant to terminate the contract and asked for refund of amount. The defendant had sent documents Ex. PW-1/14 o Ex. PW-1/17 to the plaintiff to show that goods were sent to Iran but defendant no. 1 has not sent any machines to Iran despite various requests and pleas of the plaintiff, I am of the view that plaintiff is entitled to interest @ 12% per annum. Reliance can be placed in this regard on the judgment of Central Bank of India Vs Ravindra & Ors MANU/SC/0663/2001 passed by Hon'ble Supreme Court of India. In this judgment it is held that according to stroud's Judicial dictionary of Words and Phrases interest means, inter alia, compensation paid by the borrower to the lender for deprivation of the use of his money. In Secretary, Irrigation Department, Government of Orissa & Ors Vs G. C. Roy Manu/ SC/0297/1992 (1992) 2 SCC 508, it is held that the constitution bench opined that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This is the principles of Section 34 CPC.
CS (Comm.) No. 571/2019 -35-In this judgment, Judgment of Dr. shamlal Narula Vs CIT Punjab MANU/ SC/0109/1964 (53) was also relied upon wherein it is held that interest is paid for the deprivation of the use of the money. In this judgment it is also held that in whatever category "interest in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is charge for the use of forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by customs or usage, for use of money, belonging to another, or of the delay in paying money after it has become payable.
Reliance can also be placed on the judgment of
Aditya Mass Communication (P) Ltd Vs APSRTC
MANU/SC/0759/2003 wherein Hon'ble Supreme Court
granted interest @ 12% per annum. Reliance can also be placed on the judgment of "M/s IHT Network Limited Vs. Sachin Bhardwaj" in RFA No. 835/2016 & CM Appl.14617/2020 wherein the Hon'ble High Court of Delhi has granted interest @12% per annum. I am of the view that plaintiff is entitled to interest @ 12% per annum which is reasonable and usually prevailing market rate of interest. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
29. RELIEF:
In view of my above discussions, the suit of the plaintiff is partly decreed and a decree of Rs. 64,16,328/- is passed in favour of the plaintiff and against the defendant no. 1 only. The plaintiff is also entitled to interest @ 12% per annum on the amount of CS (Comm.) No. 571/2019 -36- Rs. 64,16,328/- from 27.08.2018 when the payment was made by the plaintiff to the defendant no. 1 till realization. Plaintiff is also entitled to the cost of the suit. Decree sheet be prepared accordingly. File be consigned to record room, after necessary compliance.
Announced in the (NARESH KUMAR MALHOTRA) open court on 21.05.24 District Judge, Comm. Court-06 West, Tis Hazari Courts Extension Block, Delhi/21.05.24 CS (Comm.) No. 571/2019 -37-