Delhi District Court
D S Digital Pvt Ltd vs Pradeep Singh Madhok on 12 March, 2025
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 457/2021
CNR No. DLCT01-0019202021
(Old Case: 20 oldest Cases of the Court)
DLCT010019202021
M/s D.S. Digital Private Limited,
Through Shri Saurabh Mittal,
Having its Office at:
7361, Ram Nagar.
Qutub Road, New Delhi-110055
Also At:
A-27, 2nd Floor, Mohan Co-operative Industrial Estate,
New Delhi-110044 ......Plaintiff.
Vs
Dalimss Sunbeam School,
Trough Mr. Pradeep Singh Madhok,
President/Chairman,
Opposite Rohania Thana, Rohania
Varanasi-221108
Uttar Pradesh
...... Defendant.
SUIT FOR RECOVERY OF RS. 40,17,966/-.
Date of institution of suit : 09.02.2021
First Date before this court : 15.04.2024
Date of hearing of final argument : 04.03.2025
Date of Judgment : 12.03.2025
Digitally signed
MUKESH by MUKESH
KUMAR GUPTA
KUMAR Date:
2025.03.17
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Appearance(s) : Shri Rajesh Kumar Ld. Counsel for the plaintiff.
(through Video Conferencing)
Shri Ashutosh Bansal, Ld. Counsel for the defendant.
(through Video Conferencing)
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon plaintiff's suit for Recovery of Rs.40,17,966/- alongwith interest @ 15% per annum pendentlite and future from the date of filing of suit till its realisation. The plaintiff has also prayed for a direction to the defendant for return of the hardware/interactive education materials lying with it besides costs of the suit.
(B) PLAINTIFF'S CASE
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) It is a private limited company earlier known as M/s S. Chand Harcourt (India) with its name changed to M/s D.S. Digital Pvt.
Ltd. The plaintiff company is holding quantum of educational contents of international standards for all levels and streams/disciplines of school and college education with good market reputation in India and abroad having its registered office at 7361, Ravinder Mansion, Ram Nagar, New Delhi and is engaged in the business of setting up of computer peripheral and to implement interactive learning. The present suit has been filed by Mr. Saurabh Mittal, Authorized Signatory of the plaintiff's Digitally signed by MUKESH MUKESH KUMAR company who has been duly authorized to file, sign, and verify the KUMAR GUPTA Date:
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plaint and do all the needful in the matter vide Board Resolution dated 07.08.2018 and subsequent Power of Attorney of the same date notorised on 14.09.2018.
2.2) The defendant is a private educational institution by the name of Dalimss Sunbeam Schools under the Charitable Trust i.e. Dr. Amrit Lal Ishrat Memorial Sunbeam School & Hostel which has 5 branches at Paharia, Rohania Mohinkunj, Ramkatora and Sigra in Varanasi and is engaged in providing education and learning to children.
2.3) It is further the case of the plaintiff that the Authorised Representative of defendant approached the plaintiff company at its office and issued a Purchase Order dated 15.11.2014 for setting up and implementation of interactive learning solutions at defendant's Schools for the period of 36 months for 60 set ups @ Rs.4,000/- per set up with billing start date from April, 2015 onwards against installation of the hardware and trainings. The defendant further renewed the aforesaid purchase order on 09.04.2018 for another 36 months in which the 60 sets up were for Rs.1800/- per set up and an Agreement dated 12.01.2019 was executed between the parties in this regard. The price per set up was stated to be decreased as the hardware was already installed with the defendant and the defendant was require to make payment for software only.
2.4) It is further the case of the plaintiff that on 14.02.2015, the plaintiff has further issued another purchase order for setting up of another 60 set ups for 36 months @ Rs.4,000/- per set up for which the Digitally signed billing cyle was to start from April, 2016. The defendant has further by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
entered into an agreement dated 12.01.2019 with retrospective effect GUPTA 2025.03.17 17:47:01 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 3 of 38 from 01.09.2018 for another 13 set ups @ Rs.1,800/- per set up for Rohania Branch for which the billing cycle was started from 01.09.2018.
2.5) It is further the case of the plaintiff that the plaintiff company had delivered and installed all the hardware and software in the defendant schools and also provided regular maintenance services to the defendant besides training to the teachers of the schools. It has also engaged co-ordinator in the branches to manage the equipment and software for smooth functioning of 133 set ups so installed.
2.6) The Plaintiff has raised various invoices for theset ups from time to time and the defendant has been making payments to the plaintiff accordingly. The plaintiff has been maintaining a running account of the defendant which shows a total outstanding balance of Rs.40,17,966/-
which remains due and outstanding despite several requests being made by the plaintiff. It is also averred that certain payments were made by the defendant through cheques in the year 2018-19 which also got dishonoured.
2.7) It is further the case of the plaintiff that the defendant despite repeated request of plaintiff has failed to clear the outstanding balance which compelled the plaintiff to issue a legal notice dated 12.11.2019 to the defendant through Speed Post but to no avail.
2.8) The cause of action is stated to have arisen first time on 15.11.2014 when the defendant issued a Purchase Order for 60 sets up, which was renewed on 09.04.2018 and thereafter arose on 14.02.2015 when the another purchase order was issued and when the hardware and Digitally interactive learning material was installed and training were provided on signed by various occasions. The cause of action is still stated to be subsisting as MUKESH MUKESH KUMAR KUMAR GUPTA Date:
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the defendant has not cleared the outstanding amount.
2.9) Hence the present suit for recovery of Rs.40,17,966/- with interest, costs and also seeking directions to pay for the hardware and interactive educational material or to return the hardware still lying with the defendant.
(C) CASE OF DEFENDANT:-
3. On receipt of summons for settlement of issues, the defendant contested the suit by filing a detailed Written Statement denying each and every averments.
3.1) The defendant has taken various preliminary objections viz. the suit is not maintainable being without any cause of action, plaintiff has not approached the court with clean hands and suppressed material facts, the court has no territorial jurisdiction to adjudicate upon the present suit as the plaintiff company has installed software and hardware equipment at Varanasi UP and the suit is liable to be dismissed as the plaintiff has not issued any invoices against the installation of hardware & software to the defendant society despite repeated demands.
3.2) It is contended that the defendant society is in the name of Dr. Amrit Lal Ishrat Memorial Sunbeam society duly registered under the Societies Act, vide PAN No. AAATD5576C incorporated on 21.04.1997 having 5 branches under the name and style of Dalimss Sunbeam School at Paharia, Rohania, Mohinikunj, Ramkatora and Sigra in Varanasi and it has been providing education to the needy and down trodden children for the last 25 years in the Varanasi. Furthermore, the defendant is not MUKESH by Digitally signed MUKESH KUMAR GUPTA the president/chairman of Dalimss Subeam School but he is the only KUMAR Date:
GUPTA 2025.03.17 17:47:15 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 5 of 38 Secretary of Dr. Amrit Lal Ishrat Memorial Sunbeam Society.
3.3) It has further been contended that Authorised Representative of plaintiff has approached the principal of Rohania Branch for installation of Software & Hardware projects to increase the quality education for the students to which the principal has taken the approval from the office bearers of the said society for installation and accordingly issued purchase order to the plaintiff company. The associates of plaintiff company assured the office bearers of the society that they will maintain all the software & hardware under the supervision of executives of the plaintiff company for each school separately i.e. five qualified executive shall be appointed, salaries of which shall be paid by the plaintiff. The plaintiff has also assured the members of the society that the plaintiff shall provide AMC of the installed software & Hardware free of cost. It has also been assured that the appointed executives besides maintaining the equipments shall also provide training to the teachers/students.
3.4) It has further been contended that the plaintiff company did not provide branded software & hardware to the society and rather supplied local assembled software & hardware material due to which the working capacity of the hardware and software depleted resulting into the objections being raised by the defendant and consequent decrease in the agreed value from Rs.4,000/- per set up to Rs.1800/- per set up. It has also been averred that the plaintiff company itself executed the agreement for implementation of customed Interactive Content wherein the first Digitally signed by MUKESH party is DS Digital Pvt. Ltd. and not applicable was filled in the Second MUKESH KUMAR Party Column and as such the said agreement is not valid in the eyes of GUPTA KUMAR Date:
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law. Ir has also been contended that the suit of the plaintiff is not
maintainable and is liable to be dismissed on the ground that no payment of the plaintiff company is due against the society as such the society is not liable to pay.
3.5) On merits, all the allegations made in the plaint are denied as incorrect except that in the year 2015 the plaintiff company charged of Rs.4,000/- per set up from the society but in the year 2018 the plaintiff company charged of Rs.1800/- per set up. The defendant has reiterated the contention regarding the executives of the plaintiff company who have failed to perform the installation of branded software and hardware in the schools of the society despite their undertaking. It has further been contended that the plaintiff company has never issued physical assets verification report dated 02.08.2019, 04.08.2018 and 10.08.2018 to the society and the plaintiff company has never provided any type of training to the staff of the schools for handing the software and hardware equipments form 28.04.2016 to 26.04.2019.
3.6) It has further been contended that the society issued four cheques, one bearing no.002694 of Rs.5,00,000/- dated 20.04.2019, 002708 of Rs.5,00,000/- dated 08.08.2019, No. 002709 of Rs.5,00,00/-
dated 05.05.2019 all drawn on Kotak Mahidra Bank which though were dishonoured but when returned to the defendant society, the plaintiff has taken cash amount of Rs.20,00,000/- against those cheques but the plaintiff company has failed to return one cheque to the society which is still in its possession and is likely to be misused. Digitally signed by 3.7) It has also been contended that the plaintiff company has MUKESH MUKESH never provided regular services to the defendant society nor maintained KUMAR KUMAR GUPTA GUPTA Date:
2025.03.17 17:47:33 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 7 of 38 the software and hardware and the plaintiff has filed forged and fabricated installation reports, service call reports, physical assets verification reports and training reports for which the defendant is likely to file a criminal complaint against the plaintiff company. It has also been contended that the plaintiff has misused the printed letter heads of the defendant society for which the defendant society reserves the right to take action against the plaintiff. It has finally been contended that the plaintiff company has never issued any invoices nor maintained any visit as alleged and the same are false and fabricated documents . It has also been contended that due to supply of inferior quality of software and hardware, the defendant had to spend huge amount of Rs.15,00,000/- for maintenance and repair to ensure the continuous study of students and in total the defendant has suffered a loss of Rs.40,00,000/- for which the defendant is preparing to file counter claim for compensation, damages and defamation. It has finally been contended that the present suit is nothing but an attempt to pressurize the defendant and extort money since nothing is due. Defendant has prayed for dismissal of suit.
4. A detailed replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement. The plaintiff has submitted that all the averments based on the written contract between the parties are admitted and all other averments beyond the contract are denied. It has specifically been denied that the plaintiff company never Digitally signed by MUKESH issued any physical assets verification report of dated 02.08.2018, MUKESH KUMAR 04.08.2018 and 10.08.2018 to the defendant society. The plaintiff has GUPTA KUMAR Date:
GUPTA 2025.03.17 17:47:40 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 8 of 38 reiterated that the suit be decreed with interest and costs.
(D) CRYSTALISING THE DISPUTE :-
5. On the pleadings of the parties and documents placed on record and after perusing the affidavit of admission & denial of the defendant and the following issues were framed for adjudication vide order dated 16.01.2023.
ISSUES.
(i) Whether this court does not have territorial jurisdiction to entertain this suit ?OPD
(ii) Whether the plaint is liable to be rejected for want of cause of action ? OPD
(iii) Whether the plaintiff is entitled to recover the suit amount of Rs.40,17,996/- from the defendant ? OPP.
(iv) Whether the plaintiff is entitled to any interest ? If so, at what rate and for which period?OPP.
(v) Relief.
(E) EVIDENCE OF PLAINTIFF.
6. Plaintiff, in support of its case, got examined its Authorised Representative and Senior Accounts Executive Shri Ankit Sharma as PW1.
7. PW1 Shri Ankit Sharma, reiterated the contents of the plaint on oath in his affidavit Ex.PW1/1 and got exhibited the copy of Digitally signed by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 17:47:47 +0530 Memorandum and Article of Association of predecessor of plaintiff CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 9 of 38 company M/s S. Chand Harcourt (India) Ltd. as Ex.PW1/A, copy of document showing the change of name by the ROC as Ex.PW1/B (OSR), copy of the Memorandum and Articles of Association of M/s D.S. Digital Private Limited as Ex.PW1/C (OSR), copy of Board Resolution dated 01.08.2019 and Special Power of Attorney dated 10.08.2022 as Ex.PW1/D (OSR) and Ex.PW1/E (OSR) respectively, Purchase Order dated 15.11.2014 as Ex.PW1/F, Purchase Order dated 01.04.2018 as Ex.PW1/G and Agreement dated 14.09.2018 as Ex.PW1/H. Purchase order dated 14/02/2015 as Ex.PW1/I-1 and Ex.PW1/I-2, Agreement dated 12.01.2019 as Ex.PW1/J, Service Call Reports showing service of hardware and software as Ex.PW1/K (colly 68 pages), Assets Physical Verification Form dated 02.08.2018, 04.08.2018 and 10.08.2018 as Ex.PW1/L-1 (colly), Ex.PW1/L-2 (colly) and Ex.PW1/L-3 (colly) respectively, Post Installation Hardware Check List dated 03.06.2015 as Ex.PW1/M, Acknowledgement of the training dated 28.04.2016 as Ex.PW1/N, dated 14.08.2016 as Ex.PW1/O, Feedback Forms of the training dated 14.08.2016 as Ex.PW1/P (Colly), Invoices issued by plaintiff company as Ex.PW1/Q-1 to Ex.PW1/Q-11 for 120 set ups, Sub-
ledger of the defendant maintained by the plaintiff as Ex.PW1/R, Invoices raised separately for the 13 set ups as Ex.PW1/S-1 to Ex.PW1/S-3, Sub ledger of the defendant for 13 sets ups as Ex.PW1/T, Cheque bearing no.009427 dated 18.07.2018 for a sum of Rs.5,00,000/- and the dishonour memo dated 21.07.2018 as Ex.PW1/U-1 and Ex.PW1/U-2, Affidavit/Certificate u/s 65-B of Indian Evidence Act, as Ex.PW1/V, Legal Notice dated 12.11.2019 as Ex.PW1/W, its Postal Digitally signed by MUKESH MUKESH KUMAR GUPTA Receipt dated 13.11.2019 as Ex.PW1/X and Tracking Report of Speed KUMAR Date:
GUPTA 2025.03.17 17:47:55 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 10 of 38 Post showing legal notice delivered as Ex.PW1/Y. He has further been deposed that the suit is correct and the defendant is liable to pay the outstanding amount alongwith interest and costs.
8. The witness was subjected to a detailed cross-examination, during which Ld. Counsel for defendant has tried to puncture the testimony of PW1 on the point of Purchase Orders, Supply of inferior equipments, number of agreements being executed between the plaintiff and defendant, the cheques issued by the defendant to the plaintiff, dishonouring of cheques and other aspects.
9. PW1 during cross-examination has deposed that the First Agreement with the defendant was executed in November, 2014 at Delhi.
He has further deposed that plaintiff supplied Smart-Board, Projector, CPU, Keyboards, Speaker etc. and the first purchase order placed by the defendant was in respect of articles worth Rs.86,40,000/- and out of which Rs.50,00,000/- had been paid. He has further deposed that 2nd Purchase Order was received from the defendant in February, 2015 which was for 60 class rooms for 36 months @ Rs.4000/- per classroom. Though, he could not tell without going through the statement of account as to how much money was paid to the plaintiff by the defendant in respect of the 2nd purchase order adding that it was a running account.
10. He has further deposed that there were many employees who used to provide training to the staff of the defendant on different dates and Digitally MUKESH signed by MUKESH KUMAR their PF and ESIC subscription was also regularly deducted as per rules.
KUMAR GUPTA
GUPTA Date:
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He has further deposed that they might be staying in some hotel when they used to go to impart training to the staff of the defendant. He has further deposed that the nature of work of resource coordinator was to resolve any issues arising in the schools where the software was provided by the plaintiff company and to inform the company in case they were unable to resolve the issue. He has further deposed that the plaintiff had not received the balance amount of Rs.36,40,000/- before the second purchase order, however, he did not give any legal notice to the defendant for the balance amount. As per billing, the second purchase order received from the defendant was for Rs.1,30,02,000/-. He has denied the suggestion that there was no such second purchase order. He has further deposed that he cannot tell the exact date when the balance amount of Rs.36,40,000/- was received from the defendant.
11. He has further deposed that the fourth purchase order was received in 2018 for Rs.24,24,000/- for software support for 60 class rooms. He has also deposed that they have received total five purchase orders from the defendant. In regard to the payment of cheques, he has seen three cheques for Rs.5,00,000/- each dated 20.04.2019 and 05.05.2019 and 08.05.2019 respectively which the same were not given to the plaintiff by the defendant, voluntarily adding that the said cheques were dishonoured from Janakpuri Branch of HDFC bank whereas their account is in HDFC bank, K.G. Marg. He has further deposed that the plaintiff company did not present the cheque Ex.PW1/U-1 dated 18.07.2018. He Digitally signed has further deposed that it is not mentioned in the plaint that the plaintiff MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 17:48:14 +0530 company did not present the cheque Ex.PW1/U-1 dated 18.07.2018 or CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 12 of 38 that it was reflected in their ledger account as it was deposited in the plaintiff's account and dishonoured. He has further deposed that they have not mentioned the break up of the suit amount of Rs.40,00,000/- in the plaint which is duly reflected in their IT returns. He has finally deposed that he was informed about this fact that the defendant is still using the machines by Mr. Nitin Sharma who was IT head of the plaintiff company and has left the company in 2021. He has also deposed that each unit installed in a class room comprises of interactive board, CPU, projector, mouse, VGA cable etc. and the interactive boards were of I- Touch company and the remaining articles were assembled and he does not know the names of the company/brand of the said articles.
12. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed on 20.11.2023.
(F) DEFENDANT'S EVIDENCE :-
13. The defendant in its defence initially examined one Shri Rajesh Bijawat, Special Power of attorney of the defendant society, as DW1 who was examined and partly cross-examined on 26.02.2024 whereafter which the witness has unfortunately expired and as such the cross-
examination of the witness could not be completed. As a result of which, the defendant then examined one Shri Krishna Kumar Singh, its Authorized Representative as additional witness DW1A. The defendant Digitally signed also examined another witness Shri Ghanshyam Vishwakarma as DW2.
by MUKESH
MUKESH KUMAR
GUPTA
KUMAR Date:
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14. DW1 Shri Rajesh Bijawat (since deceased) has filed his evidence by way of affidavit as Ex.DW1/A. He has reiterated (or rather improved upon and elaborated) the contents of the Written Statement on oath. He got exhibited the copy of his Adhar Card as Ex.DW1/1, copy of his salary slip as Ex.DW1/2, copy of his Office Identity Card as Ex.DW1/3, copy of SPA as Ex.DW1/4 and copies of three cheques bearing no.002694 for Rs.5,00,000/- dated 20.04.2019, cheque Bearing no.002709 for Rs.5,00,000 dated 05.05.2019 and cheque bearing No.002708 for Rs.5,00,000/- dated 08.05.2019 which were dishonoured alongwith bank memo in respect of cheque No. 002694 as Ex.DW1/5 (colly). He has also deposed in his evidence that plaintiff company did not provide branded hardware and software to the society as promised and instead provided local assembled ones. He has further deposed that the plaintiff has never issued Physical Assets Verification Report dated 02.08.2018, 04.08.2018 and 10.08.2018 to the defendant society nor did it provide any training to the staff of the schools for handling the software and hardware equipments from 28.04.2016 to 26.04.2019. Additionally, he has stated that though the plaintiff company provided 5 Executives but did not pay their salaries. He has additionally deposed that the defendant has demanded the invoices/bills from the plaintiff but the same were never issued. He has also deposed that the plaintiff company has filed manipulated original Service Call Report with forged Stamp of the school for which the defendant company is going to lodge criminal complaint against the plaintiff. While deposing that the suit of the plaintiff is liable to be dismissed with exemplary costs, the witness Digitally signed by MUKESH MUKESH KUMAR has deposed that the society is preparing a counter claim for damages, GUPTA KUMAR Date:
GUPTA 2025.03.17 17:48:27 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 14 of 38 compensation and defamation against the plaintiff company.
15. During cross-examination by Ld. Counsel for the plaintiff, DW1 has deposed that the goods supplied by the plaintiff are not in use and lying in godown for which the defendant is also paying rent. He has further deposed that the equipment was supplied to all the five schools and initially, the employees of the plaintiff had given a demonstration regarding working of the digital boards and the complaints were to be made through WhatsApp and e-mail (Ex.DW1/P-1) in case of any issue, adding that one employee of the plaintiff company used to be present in the school for maintaining the digital boards and used to look into the complaints and to rectify them, voluntarily adding that he was the mediator between the defendant and the plaintiff. He has further deposed that they employed Mr. Devender in 2016 or 2017 on asking of plaintiff for the purpose of rectifying the defects in functioning of the digital boards and now Mr. Devender is on his rolls. Besides Mr. Devender, one Mr. Deepak and Mr. Ghanshyam also used to look after the proper functioning of the digital boards and they were engaged by the plaintiff. He has further deposed that Mr. Ghanshayam remained in their school from 2015 till 2018. Voluntarily adding after 2018, they started paying salary to Mr. Ghanshyam as failure of the plaintiff. A suggestion by the plaintiff that the problems of working of digital boards were being rectified by 2018 was negatived by the witness stating that it was only uptil 2017 and also stating that once the plaintiff started delaying the rectification of problems, the defendant used to get the same rectified Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
from the outsource vendors.
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16. Pertinent to mention here that since the witness was not subjected to complete cross-examination, only a limited probative value can be attached to such testimony and that too based on the facts and circumstances of each case considering the surrounding circumstances.
Reliance placed on ILR 1969, Delhi 1090 titled Krishan Dayal Vs. Chandu Ram also reiterated in MANU/WB/0545/2015 titled Srikumar Mukherjee Vs. Avijit Mukherjee.
17. DW1A Shri Krishna Kumar Singh, the substituted witness of the defendant has also reiterated the contents of the Written Statement on oath thereby adding that the original witness Shri Rajesh Bijawat who was serving the head of Legal and was instrumental in the matter has unfortunately died. He got exhibited as copy of Death Certificate of Shri Rajesh Bijawat (earlier AR) as Ex.DW1A/3, he also got exhibited his ID as Ex. DW1A/1 and SPA dated 25.10.2024 in his favour as Ex.DW1A/2. He also got exhibited photocopies of photographs of Hardware Equipments supplied by M/s D.S. Digital as Ex.DW1A/4 (colly), summary of the losses as Ex.DW1A/5, Summary of Teacher's Feedback of the problems as Ex.DW1A/6, Board Result in classes 10 th & 12th in CBSE Board as Ex.DW1/& (colly), Invoices of repair and maintenance of the equipment supplied by DS Digital as Ex.DW1A/8, Cheques bearing No.002694, 002709, 002708 as Ex.DW1A/9 (colly) and Certificate u/s 63 (1) of Bhartiya Sakshya Adhiniyam 2023 in support of Invoices Ex.DW1A/8 as Ex.DW1A/10.
Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date: GUPTA 2025.03.17 17:48:47 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 16 of 38
18. The witness was cross-examined at length by Ld. Counsel for the plaintiff who has basically focussed to puncture the testimony of the witness on the aspect of inferior quality of equipments and non-providing of training and other aspects. He has deposed that the payment was to be made @ Rs.4,000/- per class in the beginning. He has admitted that the defendant has not given anything in writing to the plaintiff regarding the supply of goods being substandard adding that the factum of goods being substandard came to the knowledge of the defendant in somewhere in 2017-18 after one and half year of installation and the goods were used uptil 2019-20 whereafter which the same were removed by the defendant. He has admitted that the defendant has renewed the contract even after 2017 despite knowledge that the goods are substandard and set up installed was large as the plaintiff has assured the defendant of necessary correction. The witness was confronted with the documents Ex. PW1/F to Ex.PW1/K to which the witness has replied that he does not know the letter head and stamp thereon seem to be of defendant school and has no knowledge about it.
19. When asked about the place where the goods allegedly are lying in godown, the witness has deposed that the goods of plaintiff are lying in the godown of the defendant situated near the school at Rohania, Opposite Rohinia Police Station, Varanasi, Uttar Pradesh but admitted there is no rent agreement in respect thereof. He has further deposed that he has mentioned in his affidavit Ex.DW1A/1 that the defendant is paying a monthly rent of Rs.20,000/- for storing unused goods belonging Digitally signed by MUKESH MUKESH to the plaintiff. When asked about the dishonoured cheque of KUMAR GUPTA KUMAR Date:
2025.03.17 GUPTA 17:48:53 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 17 of 38 Rs.5,00,000/- in April, 2019, the witness has shown ignorance and deposed that in all total 4 cheques were given by the defendant to the plaintiff amounting of Rs.5,00,000/- each, out of which 2 have been dishonoured adding that the defendant has cleared the payment of Rs.20,00,000/- after the cheques were returned to the defendant but again failed to show any proof of payment.
20. DW2 Shri Ghanshyam Vishwkarma, ex-employee of the plaintiff company looking after the smart board affixed in the defendant's class rooms entrusted with repairing of computer peripheral, software and hardware got exhibited copy of his ID as Ex. DW2/1, Copies of e-mail interaction of DS Digital Staff and DS Digital company as Ex.DW2/2 and certificate u/s 63 of Bhartiya Sakshay Adhiniyam as Ex.DW2/3. He has categorically deposed that he was initially appointed by the plaintiff on 12.10.2015 to provide digi board support to the defendant school with his responsibilities of maintaining the same and solving the problems created to hardware and software supplied by the plaintiff. He has deposed that various e-mails were sent to the authorised person of the plaintiff in respect of the problems in working of hardware and software which were locally rectified by the plaintiff. He has finally deposed that since July 2019, the defendant Dalmss school has appointed him to maintain digi board system ssupplied by the plaintiff which are not in use of the defendant on date.
21. The witness was subjected to the cross-examination and confronted Digitally signed with various documents for purpose of identification of the signatures of by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
2025.03.17 GUPTA 17:48:59 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 18 of 38 the employee of the defendant on rectification form which he has vaguely denied.
22. No other witness was examined by the defendant and the evidence of the defendant was closed vide statement dated 14.01.2025.
(H) ANALYSIS & DETERMINATION:-
23. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record. I have given a thoughtful consideration to the same. My issue-wise determination is as under:-
ISSUE No.1. "Whether this court does not have territorial jurisdiction to entertain this suit ? OPD"
24. The onus of proving this issue has been held upon the defendant who has taken a preliminary objection in its Written Statement that the court has no territorial jurisdiction to adjudicate upon the present suit as the plaintiff company has installed the software and hardware at defendant's school situated in Varanasi, UP only and as such no cause of action has taken place within the jurisdiction of this court. In this regard, it may be seen that the defendant has failed to lead any specific evidence to this effect or has filed any specific document to show lack of jurisdiction of the court. However, since the aforesaid question is a mixed question of law and facts, the court shall decide the same on the basis of documentary evidence which has come on record.
25. Ld. Counsel for the defendant has argued that the Purchase Order Digitally relied upon by the plaintiff Ex.PW1/F, G and H and issued by the signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
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defendant are addressed to Mr. Vibhay Singh, the Territory Manager of the plaintiff in Noida. He has further relied upon the Section 20 of the CPC to argue that a suit must be filed where the defendant resides, carries on business, or where the cause of action either in full or part arises which the plaintiff has failed to establish.
26. Ld. Counsel for the plaintiff on the other hand, has argued that the registered office of plaintiff is situated in Delhi and the purchase orders were supplieds at Delhi only. It has been vehemently argued that the agreements between the parties Ex.PW1/H and Ex.PW1/J, which create rights and obligation between the parties, were executed at Delhi and also contain a specific clause in Clause 12 (h) conferring exclusive jurisdiction to the courts at Delhi only and both the parties have agreed to submit to the jurisdiction thereof. It has also been argued that even the payments which have been made by the defendant in the plaintiff's bank account received at Delhi only and as such only Delhi Courts have jurisdiction to entertain the instant suit. Ld. Counsel for the plaintiff has additionally argued, during the course of arguments, that this is a case where the principle of debtor must seek the creditor applies and relied upon the pronouncement of law laid down by our own Hon'ble High Court in Shrada Wassan and Ors. Vs. Anil Goel and Anr. 2009 SCC Online Del 1285. The court shall examine the respective contentions of the parties in this regard.
27. At the outset, it may be seen that the present case is based on the Digitally MUKESH signed by MUKESH KUMAR outstanding amount in respect of educational software and hardware KUMAR GUPTA Date:
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equipments supplied by the plaintiff to the defendant vide agreement dated 14.09.2018 and 12.01.2019 Ex. PW1/H and J. The purchase order Ex.PW1/F, G, I-1 and I-2 have been issued by the defendant in favour of plaintiff from time to time. The terms and conditions of the sale and purchase, the service and repair and even payments have been settled between the parties in the aforesaid agreements. These agreements have been duly signed by both the parties and even contain the stamp of the defendant society. If these agreements are carefully perused, they have been executed in Delhi on a non-judicial stamp paper issued from Delhi. The plaintiff has its registered office in Delhi and the goods have been supplied from Delhi only, though the same is maintained and used at Defendant's schools situated at Varanasi. Furthermore, the parties have consciously decided to confer jurisdiction on the competent courts situated in Delhi in case of dispute or legal proceedings touching or arising out of the agreement by excluding other jurisdiction. The payments made by the defendant have also been received at Delhi resulting into part cause of action in terms of section 20 of CPC being s arisen in Delhi.
28. The Hon'ble Delhi High Court in Shrada Wassan (supra) after examining a number of judgments has clearly held that when the money is expressly or impliedly payable under a contract and payments are to be made at Delhi, or received as such, a part of cause of action arises. Relying upon the pronouncement of law laid down by Hon'ble Supreme Digitally Court in A.B.C Laminart Pvt. Ltd. Vs. A.P. Agencies, (1989), 2 SCC signed by 163, the Hon'ble court has even laid down that if a legal notice MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.03.17 17:49:38 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 21 of 38 demanding the payment, preceding the suit, was sent from Delhi for payments at Delhi, the principle of debtor must seek the creditor applies with the exception of a promissory notes. The principle is applied in respect of payments received at the place of plaintiff under an express or implied contract and unless there is a clear ouster of jurisdiction, the place of the plaintiff shall also be the place where a legal action can be filed. This principle was succinctly followed in subsequent judgments of our own Hon'ble High Court in TKW Management Solutions Pvt. Ltd. Vs. Sherif Cargo and Anr. (2023) SCC Online Del. 593, and Transasia Solutions Pvt. Ltd. Vs. Sherif Cargo and Anr. (2023) SCC Online Del. 593, by holding the jurisdiction of courts at Delhi on the ground that the payments were received in Delhi.
29. In the instant case not only all the payments made by the defendant were received by the plaintiff in Delhi, legal notice dated 12.11.2019 Ex.PW1/W was sent from Delhi for payments at Delhi only but also the agreements Ex.PW1/H and Ex.PW1/J were executed at Delhi also containing an exclusive jurisdiction clause, 12(h) conferring exclusive jurisdiction to the courts at Delhi and both the parties agreed to submit to the jurisdiction of Delhi Courts. Thus, when taken on the yardstick of preponderance of probability and on the basis of the aforesaid discussion, while the defendant has failed to prove this issue in its favour, the plaintiff has established the jurisdiction of courts at Delhi. This issue is, accordingly, decided against the defendant and in favour of the Digitally signed plaintiff.
MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 17:49:50 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 22 of 38 ISSUE NO. 2: "Whether the plaint is liable to be rejected for want of cause of action ?OPD ".
30. The onus to prove this issue was held upon the defendant who has taken a preliminary objection in the Written Statement that no legal, valid or justiciable cause of action has arisen in favour of the plaintiff or against the defendant for filing the present suit and as such the plaint of the plaintiff is liable to be rejected under order VII Rule 11 CPC. Though, the defendant has failed to specify the reasons for absence of cause of action, however, if the Written Statement is carefully perused, it appears that the defendant is referring to the plea that the plaintiff has not issued any invoices against the installation of Software and Hardware to the defendant society despite repeated demands. The defendant has also vaguely taken a plea that the digi board and computer peripheral installed by the plaintiff were of a sub-standard quality and when defendant requested the plaintiff for rectification, the plaintiff did not do so despite assurance as a result of which the sub-standard goods were rectified from the other vendor under telephonic intimation to the plaintiff.
31. In this regard, if the evidence led by the defendant is carefully examined, there is no specific and cogent pointing evidence regarding the absence of cause of action for filing the instant suit. In laws, cause of action can be described as:.
"The cause of action means a bundle of material facts which it is necessary for the plaintiff to prove Digitally in order to get relief in the suit. [2024] 5 S.C.R. MUKESH signed by MUKESH KUMAR 404: 2024 INSC 333 Arcadia Shipping Ltd. V. KUMAR Tata Steel Limited and Others."
GUPTA Date:
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32. The court will have to examine whether these bundle of factes are missing in the light of contentions raised. It may be seen that the plaintiff has duly filed not only the purchase orders Ex.PW1/F, G and I-1 but also filed the agreements between the parties Ex.PW1/H and Ex.PW1/J. Incidentally, these documents have also been admitted by the defendant in their affidavit of admission and denial dated 22.03.2020. Pertinent to further point out that the plaintiff has also duly filed its various invoices Ex.PW1/Q-1 to Q-11 for 120 set ups of hardware and software and Ex.PW1/S-1 to S-3 in respect of the remaining 13 set ups. Though, the evidentiary value of these invoices shall be examined by the court in subsequent issue regarding entitlement of plaintiff but for the purpose of arguments, it cannot be said that cause of action does is absent on account of non-filing of the invoices on record.
33. Adverting to the plea regarding sub-standard goods being supplied by the plaintiff to the defendant and the rectifications in respect of the services being not done despite request of the defendant, it may be seen that the plea has been vaguely taken. Though the defendant has relied upon the various e-mails being written by the representative of the defendant to the representatives/coordinators of the plaintiff as Ex.DW2/2 with certificate u/s 63 of Bhartiya Saksha Adhiniyam Act, 2023 as Ex.DW2/3, but the same in itself would not show the absence of cause of action when the defendant has failed to take the complaints regarding rectification to next level as provided in the escalation matrix specifically under clause 17(d) of the agreements Ex.PW1/H and J Digitally MUKESH signed by MUKESH KUMAR providing for complaint and service related clause. Admittedly, the KUMAR GUPTA Date:
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defendant continued to use the hardware and software supplied by the plaintiff despite such complaints but without taking any positive action in the form of any specific communications asking the plaintiff to remove the same, if not rectified within time, or even suggestive of a legal action for breach of contract. He cannot be allowed under the law to take the aforesaid plea, that too vaguely and without any cogent evidence to say that there was an absence of cause of action in favour of the plaintiff and against the defendant.
34. Thus, taken on the yardstick of preponderance of probability and on the basis of the aforesaid discussion, the defendant has utterly failed to prove this issue by way of any clear or cogent evidence. This issue is, accordingly decided against the defendant and in favour of the plaintiff.
ISSUES NO.3 "Whether the plaintiff is entitled to recover the suit amount of Rs.40,17,966/-
from the defendant?OPP"
35. The onus of proving this issue has been held upon the plaintiff. Since this issue relates to the entitlement of the plaintiff for the relief claimed, the same is pivotal to the entire controversy between the parties. The case of the plaintiff is based on non-payment of dues for the supply of hardware equipment and educational software being provided by the plaintiff company to the five schools of the defendant society situated in Varanasi. As per the claim of the plaintiff, the parties are bound by the agreements Ex.PW1/H and J and purchase orders Digitally Ex.PW1/F, G, I-1 and I-2 and the defendant has failed to complete its signed by obligations to pay the outstanding amount as per the Statement of MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.03.17 17:50:16 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 25 of 38 Account/sub-ledger Ex.PW1/R and Ex.PW1/T maintained by it which show an outstanding amount of Rs.36,43,569/- and Rs.3,74,397/- respectively, thereby totaling the suit amount of Rs.40,17,966/- which the defendant has failed to pay despite service of legal notice dated 12.11.2019 Ex.PW1/W sent through postal receipt Ex.PW1/X and the tracking reports Ex.PW1/Y. The defendant on the other hand, has taken various stands including the supply of sub-standard goods despite agreeing to supply the branded goods, the non-rectification of the complaint/service request from time to time rendering the hardware and software unusable and useless leading to difficulties in providing quality education to the students and finally, removing the hardware and software from their schools. Additionally, the defendant has taken the stand that the hardware and software were to be rectified from the local market leading to an expenditure of Rs.15 lakhs by the defendant besides taking a stand that the defendant is paying Rs.20,000/- per month on account of godown rent where the removed hardware and software has been kept. The defendant, incidentally, has also tried to raise a plea that on account of the acts and omissions of the plaintiff, it has suffered a loss of Rs.84,56,462/07ps as per the their own calculation Ex.DW1/S and Ex.DW1A/6.
36. Now, if the evidence of both the parties in respect of their respective claim and defence are carefully scrutinized, both the parties have tried to rely upon numerous documents, however, if the grain is separated from the chaff, it may been seen that the parties are in Digitally commercial relationship since15.11.2014 (Ex.PW1/F) when they have signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.03.17 17:50:24 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 26 of 38 entered into a contract for supply of hardware and interactive software solutions for the students of the defendant's schools situated in Varanasi. The parties, initially entered for supply of 60 hardware and software and renewed the same in the year 2018 Ex.PW1/G and the capacity of this supply was then enhanced to 120 hardware and software solutions Ex.PW1/I-1 and I-2 and still further by additional 13 softwares Ex.PW1/F, G and I-1. The terms and conditions of the contract creating rights and obligations of both parties were reduced in writing vide two agreements dated 14.09.2018 Ex.PW1/H and dated 12.01.2019 Ex.PW1/J. Admittedly, these purchase orders and agreements have been duly admitted by the defendant in their affidavit of admission and denial documents. Thus, both the parties are at ad-idem in respect of not only the existence of purchase orders and agreements but also the contents thereof. These agreements provides the place where they were executed, recitals, interpretation clause roles and responsibilities of both the parties, consideration and payment terms, termination clause and renewal, mechanism for complaints and service related issues with escalation matrix, intellectual property issues and even other conditions of smooth running of programme. Now, there is no dispute regarding supply of 133 hardware and softwares by the plaintiff to the defendant from time to time as per purchase orders. The defendant has taken a stand that the plaintiff has supplied sub-standard goods though, it was required to supply branded goods of HP, HCL and Dell. However, if the purchase orders Ex.PW1/F, G and I-1 are carefully perused, it nowhere mentions the name of any such company, though it specifically mentions the brand MUKESH by Digitally signed MUKESH KUMAR GUPTA name of UPS and Projector to be installed. If the intention of the parties KUMAR Date:
GUPTA 2025.03.17 17:50:31 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 27 of 38 was to specify a particular brand for its hardware/computers, nothing was stopping the parties from specifying the same in their purchase orders or agreements and the defendant has failed to show such an agreement on record by way of a cogent evidence. The plaintiff has relied upon the post installation hardware checklist for each class at each location in Defendant's school as Ex.PW1/K. These installation reports show that all the hardware was working when they were installed, though it somewhere show that there has been networking issue but the same also shows that the same were resolved immediately. All these installation reports bear the signatures as well as the stamp of the school of the defendant society. Though the defendant has tried to take a stand that they are forged and fabricated, however, the defendant has failed to show as to how the same are forged and fabricated as they contain not only the signature but also the stamp of the school of the defendant society. The plaintiff has provided training to the staff of the school, the acknowledgement of which is proved on record as Ex.PW1/N (colly), the acknowledgement mentions not only the number of teachers who attended the training programme, the number of resource coordinator but also the number of students in the school. Incidentally, feedback forms have also been taken from the teachers of the school who have attended the training as Ex.PW1/N and O. Though, the defendant has again tried to take a stand that these are also forged and fabricated, however, it may be seen that all the documents are duly filled with necessary details and the signatures and stamps of defendant's school. Nothing has been brought on record by way of any evidence much less Digitally cogent evidence to show that these are forged and fabricated documents.
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
Date:
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37. A stand has been taken by the defendant that the goods supplied were of substandard but the witness of the defendant DW1A Krishan Kumar Singh has admitted that nothing was given in writing regarding the supply of goods being made sub-standard. Interestingly, the defendant has not only renewed the contract but enhanced the supply of hardware and software from initial 60 to 133 set ups with time and had there been complaint of the supplies being substandard, the defendant would not have renewed or enhanced the capacity.
38. The defendant has heavily relied upon the copies of e-mails Ex.DW2/2 (colly, alongwith the certificate u/s 63 of BSA Ex.DW2/3) to buttress his points that there has been serious deficiency in the services provided by the plaintiff in as much as the defendant has written various e-mails for rectification of the complaints and non-functioning of the hardware and software from time to time which has not been appropriately responded to by the plaintiff. If these e-mails are carefully perused, it may be seen that for the period from January 2017 to January, 2019, there are in total 43 e-mails being written by the IT Co-ordinator of the defendant society to the concerned officials of plaintiff company.
Now, some of these complaints have been rectified by the plaintiff and a communication to this effect are also found in these complaints. Interesting to note that though complaints started in January, 2017 the defendant went on to renew the contract and expand the facility taken from the plaintiff company in the year 2018 and 2019 also. This shows that though there were complaints on regular basis but either they were timely rectified or they were not of that serious nature which could affect Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
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the supply/service or the commercial relations of the parties. One more thing which is interesting to note is that most of complaints have been referred to either at level 1 or level 2 of the escalation matrix provided under clause 7 (d) of the agreements Ex.PW1/G and Ex.PW1/H and not thereafter. Admittedly, once the escalation matrix is provided under the agreement, and the complaint remained pending for more than the specified number of days, the same was required to be escalated to next level uptil the level of Vice-President (Business Development) as specified in the Agreement which has not been done. Further, the defendant had all the rights and opportunities to terminate the contract or move appropriate court of law for seeking damages but noting has been done by the defendant. On the contrary, the contract was not only renewed but also extended. The defendant has also taken a stand that the complaints relating to hardware and software were required to be rectified locally and has filed a number of bills Ex.DW1/8 (colly) and Ex.DW1A/8 (colly) which are copies of certain bills being issued by one SYN Computers situated at Siagra, Varanasi. However, these bills are neither signed nor proved by the defendant by bringing any witness from such vendor or at least file its own bank statement to show the payments being made towards such bills and as such these bills cannot be relied solely upon to fasten any liability on plaintiff.
39. One of the major stands taken by the defendant is that since the goods supplied were substandard and the complaints were not rectified, the defendant was compelled to remove the entire hardware and software from the schools leading to loss of studies to the student for which the Digitally signed by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 30 of 38 17:51:02 +0530 defendant has also made a calculation sheet to the tune of Rs.84,56,462/07ps Ex.DW1/S and Ex.DW1A/6. Additionally, it has been stated that the defendant is paying a rent of Rs.20,000/- per month for keeping the unused hardware equipments for its storage. In this regard, if the testimony of DW1 A Krishan Kumar is perused, the witness has vaguely stated that the goods of the plaintiff are lying in godown of the defendant situated near the school and in the same breadth, it says that the godown has been taken on rent of Rs.20,000/- per month but when asked about the rent agreement, the witness has replied that there is no rent agreement to this effect and when asked about the payment of rent being paid, the witness has shown ignorance of the same being paid by the defendant. As such, the defendant has also failed on this count to show that the goods were stored in a godown taken by the defendant on rent. In so far as the calculation sheet or the damages of Rs.84,56,462/07ps Ex.DW1/S and Ex.DW1A/6 is concerned, the defendant has not specifically pleaded the same in its Written Statement nor the defendant has filed any claim for damages either by way of an independent suit or even by way of a counter claim or at least a set off in the present suit. Though, the defendant has reiterated that it is preparing and going to file for damages and criminal complaints since the time the written statement is filed, however nothing has been brought to the notice of the court in last more than 4 years till date. In any case the defendant is required to prove its claim for seeking either damages, set off or a counter claim which it has not filed till date which shows that the Digitally signed by MUKESH MUKESH KUMAR GUPTA defendant has just taken a defence for the purpose of raising a defence. KUMAR Date:
GUPTA 2025.03.17 17:51:09 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 31 of 38
40. One last defence taken by the defendant that no amount is due and all amount has been paid uptil date to the plaintiff. However, even this defence has not been supported by any documentary or oral evidence of the defendant. The defendant has failed to show as to what payment was made by the defendant to the plaintiff on which date so much so that the defendant has failed to file even a counter statement of account or its ledger book in respect of the plaintiff account which it could have filed at least to counter the claim of the plaintiff based on ledger accounts of the plaintiff Ex.PW1/R and Ex.PW1/T.
41. Thus, on the basis of aforesaid discussion, the court is of the considered opinion that when taken on the yardstick of preponderance of probabilities, the plaintiff has been able to successfully established his entitlement for recovery of outstanding amount while the defendant has utterly failed to disprove the same. However, the court has to see the quantum of claim raised by the plaintiff and whether the same is justified in the facts and circumstances of the case.
42. It may be seen that plaintiff has filed the present suit for recovery of Rs.40, 17,966/- on the basis of purchase orders Ex.PW1/F, Ex. PW1/G, Ex.PW1/I-1 and Ex.PWE1/I-2, agreements Ex.PW1/G and H, invoices Ex.PW1/Q1-to Q11 and Ex.PW1/ S1 to S3 besides relying upon the statement of account/sub-ledger Ex.PW1/R and Ex.PW1/T. Though the plaintiff has failed to specify the calculation for arriving at the suit amount of Rs.40,17,966/- but during the course of arguments, Ld. Digitally signed by MUKESH Counsel for plaintiff has tried to rely solely upon the statement of account MUKESH KUMAR KUMAR GUPTA Date:
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Ex.PW1/R and Ex.PW1/T to reach the suit amount. In this regard, it
may be seen that though statement of account in respect of the entries made in books of account in electronics form are relevant when they are regularly kept in the course of its business but Section 34 of Indian Evidence Act, 1872, clearly provides that such statement shall not alone be sufficient evidence to charge a person with liability. The law in this regard has been laid down by the Hon'ble Supreme Court in a catena of judgments that entry in books account regularly kept in course of business though are admissible but they themselves cannot create any liability and can only be corroborated by other evidence brought on record. Reliance placed on (2000) 1 SCC 434 Ishwar Dass Jain (Dead) through LR's Vs. Sohan Lal (Dead) by LR's, and AIR 1981 Bom.446 Zehna Sorabji Vs. Mirabella Hotel Col. (Pvt. ) Ltd., .
43. Thus, the entries alone in Statement of Account Ex.PW1/R and Ex.PW1/T cannot be solely relied upon by the court to fasten a liability on the defendant and is required to be corroborated by appropriate bills or invoices duly proved against each entry in accordance with law. Now if the invoices Ex.PW1/Q1 to Q11 and Ex.PW1/S1 to S3 are carefully examined and corroborated with the statement of account Ex.PW1/R and Ex.PW1/T, the following picture emerges on analysis:
Table A Date Invoice No. Amount Exhibit Entry in (In Rs.) Ledger Digitally signed by MUKESH 01.06.2018 DS18SE000486 7,19,999/- Ex. PW1/Q-1 Yes MUKESH KUMAR KUMAR GUPTA Date:
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01.06.2018 DS18SE000513 3,24,000/- Ex. PW1/Q-2 Yes
01.08.2018 DS18SE000960 7,19,999/- Ex. PW1/Q-3 Yes
01.08.2018 DS18SE000961 3,24,001/- Ex. PW1/Q-4 Yes
01.11.2018 DS18SE001598 7,19,999/- Ex. PW1/Q-5 Yes
01.11.2018 DS18SE001663 2,16,000/- Ex. PW1/Q-6 Yes
01.02.2019 DS18SE002241 7,20,000/- Ex. PW1/Q-7 Yes
01.02.2019 DS18SE002243 3,23,999/- Ex. PW1/Q-8 Yes
01.04.2019 DS18SE000143 2,16,000/- Ex. PW1/Q-9 Yes
01.07.2019 DS18SE001143 3,23,999/- Ex. PW1/Q-10 Yes
01.10.2019 DS18SE001983 3,23,999/- Ex. PW1/Q-11 Yes
Total 49,31,995/
-
Table B
Date Invoice No. Amount Exhibit Entry in
(In Rs.) Ledger
01.04.2019 DS19SE000098 70,199/- Ex. PW1/S-1 Yes
01.07.2019 DS19SE000343 70,199/- Ex. PW1/S-2 Yes
01.10.2019 DS19SE001265 70,199/- Ex. PW1/S-3 Yes
Total 2,10,597/-
Grand Total of Table A + B = Rs. 51,42,592/-
The total invoices raised by the plaintiff to defendant (also corroborated in Statement of account are for an amount of Rs.51,42,592/-. Against this, the payments made by the defendant to plaintiff on various dates are Digitally signed as under:-by MUKESH
MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 17:51:29 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 34 of 38 Table C S. No. Date Payment Received (In Rs.)
1. 21.07.2018 5,00,000/-
2. 31.07.2018 5,00,000/-
3. 10.08.2018 5,00,000/-
4. 17.09.2018 5,00,000/-
5. 17.01.2019 5,00,000/-
6. 06.03.2019 5,00,000/-
Total 30,00,000/-
Thus Actual Balance - Rs. 51,42,592/- (A+B) - Rs. 30,00,000/-(C) = Rs. 21,42,592/-
44. In fine, on the basis of the invoices and corroborated entries in the ledger, a total liability of Rs.51,42,592/- against the defendant is established. It may be seen that the plaintiff has simultaneously mentioned the payments being made by the defendant from time to time to the plaintiff. If thee entries are carefully perused the defendant has made a total payments of Rs.30,00,000/- in 6 tranches of Rs.5,00,000/- each on 21.07.2018, 31.07.2018, 10.08.2018, 17.09.2018, 17.01.2019 and 06.03.2019 besides making due payments towards TDS. Now, this sum of Rs.30,00,000/- is required to be adjusted against the total proved liability of Rs.51,42,592/- thereby leaving an outstanding balance of Rs.21,42,592/- which the defendant is liable to pay to the plaintiff and as such the plaintiff has been able to successfully proved its entitlement to Digitally signed by MUKESH MUKESH KUMAR GUPTA this amount on the yardstick of preponderance of probabilities. This KUMAR Date:
GUPTA 2025.03.17 17:51:36 +0530 CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 35 of 38 issue is accordingly decided partly in favour of the plaintiff and against the defendant.
ISSUE NO.5: "Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ? OPP"
45. The onus of proving this issue was also held upon the plaintiff who has claimed an interest @ 15% per annum on the outstanding amount pendentlite and future. Though there is a stipulation in clause 6
(g) of Agreement Ex.PW1/J that in case of non-payment of installment by the school for a period exceeding 7 days from the due date of payment, late payment charges @ 15% per annum will be levied.
However, Hon'ble Supreme court in a number of judgments reported as Pt. Munshi Ram @ Associates (P) Lt. Vs. DDA, 2010 SCC Online Delhi 2444, Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC) has repeatedly mandated that courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. Under the facts and circumstances of the case, keeping in view the nature of transactions of the case and the aforesaid settled law, court is of the considered opinion MUKESH Digitally signed by MUKESH that the interest of justice would be met, if an interest @ 7% per annum is KUMAR KUMAR GUPTA Date:
GUPTA 2025.03.17
17:51:49
+0530
CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 36 of 38
granted to the plaintiff on the outstanding amount of Rs.21,42,592/- pendentlite and future from the date of filing of the suit till the date of its realisation. This issue is decided accordingly.
(I) CONCLUSION:- ISSUE No.6: Relief.
46. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement to the recovery against the defendant. The suit of the plaintiff is accordingly decreed against the defendant for a sum of Rs.21,42,592/-.
21,42,592/- The plaintiff shall also entitled to a simple interest @ 7% per annum on such amount pendente-lite and future from the date of institution of the suit till its realization.
47. Suit of the plaintiff is accordingly partly decreed, leaving the parties to bear their own respective costs.
48. Decree sheet be drawn accordingly.
49. File be consigned to record room after due completion.
Digitally signedMUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 17:51:55 +0530 (MUKESH KUMAR GUPTA) DATED 12.03.2025 District Judge (Commercial Court)-07 Central/Delhi PRONOUNCED IN THE OPEN COURT .
CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 37 of 38 CERTIFICATE Certified that the judgment contains 38 pages and each page has been digitally signed by me. The judgment was pronounced on 12.03.2025 in open court and is being checked, digitally signed and Digitally signed uploaded on 17.03.2025. MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.03.17 17:52:01 +0530 (MUKESH KUMAR GUPTA) District Judge (Commercial Court)-07 Central/Delhi CS (Comm.) No. 457/2021 M/s D.S. Digital Pvt. Ltd. Vs. Pradeep Singh Madhok Page no. 38 of 38