Delhi District Court
Khurana And Khurana (Ip Attorneys And ... vs V. Care Technologies Pvt. Ltd on 27 July, 2024
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE - 05
(SOUTH-EAST), SAKET COURTS COMPLEX: NEW DELHI
CS DJ No. 329/2020
CNR No. DLSE01-002362-2020
Khurana and Khurana (IP Attorneys and Advocates)
E-13, UPSIDC. SITE-4,
Surajpur, Greater Noida,
Uttar Pradesh-2013010
............. Plaintiff
VERSUS
1. V. Care Technologies Pvt. Ltd.
I-10, Lajpat Nagar-II,
New Delhi-110024
2. Mr. Vishal Gupta
(Director at V. Care Technologies Pvt. Ltd.)
21 Sunder Nagar
New Delhi-110003
3. Bhagwati Devi
(Director at V. Care Technologies Pvt. Ltd.)
21 Sunder Nagar
New Delhi-110003
............ Defendants
Date of Institution : 17.08.2020
Arguments concluded : 03.07.2024
Date of decision : 27.07.2024
CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 1/9
Dated 27.07.2024
Digitally signed
by PRABHDEEP
PRABHDEEP KAUR
KAUR Date:
2024.07.30
22:13:09 +0530
J U D G M E N T (ex-parte)
1. The instant suit has been filed by the plaintiff company against the defendants for recovery of Rs. 23,88,531/- (Rupees Twenty Three Lacs Eighty Eight Thousand Five Hundred Thirty One Only) along with pendent-lite and future interest @ 24% till the entire amount is realized as well as costs of the suit.
2. The case of the plaintiff in brief is that the plaintiff is a full service Intellectual property and Commercial Law Firm formed in the year 2007. It is averred that plaintiff provides an end to end IP legal and commercialization licensing services to over 3000 Corporate. Plaintiff firm is a team of over 150 professionals spread across 10 offices and has strong rankings from legal 500, MIP, IAM, Chambers, Asia IP Global 100, Rsg, Nitin Aayog, WIPR Leaders, Global Venture, ACQ5 among others. It is averred that defendant is a private incorporated non-govt. Company and is registered at Registrar of Companies, Delhi. It is involved in Software publishing, consultancy and supply which includes production, supply and documentation of ready made (non-customized) software, operating systems software, business & other applications software, computer games software for all platforms. It is averred that defendant approached the plaintiff for the direct services of the plaintiff through defendant no. 2. Defendant no. 2 had approached the plaintiff for management of its intellectual property portfolio in the year 2015-16. Since, then the plaintiff has been diligently extending services to the defendant in an uninterrupted CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 2/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:13:21 +0530 manner. It is further averred that plaintiff has been rendering its uninterrupted services to the defendants since the year 2014 and has till date carried out the following activities for the defendants. The plaintiff has filed 40 patents applications for the defendant company in INDIA, WIPO and in foreign countries i.e. USA, China, Japan, UK, EPO and Canada. Having same or different invention titles in which the various activities have been done during the prosecution and grant process. The activities carried out for the defendant falls within the following activities:-
(1) Drafting of the patent application, (2) Filing of the patent application at the Indian Patent Office, (3) filing of the PCT application at the WIPO, (4) Preparing and filing of the ISR (International Search Report) as issued from the WIPO, (5) Filing of the patent application in foreign countries, (6) Filing of the examination request in India as well as foreign countries, (7) Preparing and filing the response towards the objection raised from the corresponding patent offices, (8) Paying the yearly maintenance fees at foreign countries, (9) Paying the grant / issue fees payment for the patent applications and (10) Reporting, analyzing the patent applications and provide consultation to the client. It is further averred that plaintiff has till date raised some invoices and till date, the defendant has made part payments against the aforesaid amount. The defendant no. 1 acting through defendant no. 2 and defendant no. 3 are bound by such invoices and the due amount raised by the plaintiff. It is averred that defendant had made certain part payments against the said invoices and dues at the different point of times which were duly acknowledged and maintained in account CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 3/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:13:33 +0530 by the plaintiff. The plaintiff firm has been regularly following up the matter with the defendants. The defendants no. 1, 2 and 3 were duly requested to repay the pending dues vide email dt. 10.11.2019 and 22.04.2020. It is averred that defendant made a part payment but an amount of Rs. 24,00,621/- is still outstanding against the defendants which has not been paid till date by the defendants. Thereafter, plaintiff requested the defendants for releasing the said outstanding amount but defendants have always been delaying the same on one pretext or the other. Therefore, defendants are liable to pay Rs. 24,00,621/- as interest @ 24% per annum w.e.f. 30.04.2020 till filing of the suit. The defendants failed to pay the same despite service of demand notice dt. 30.04.2020. Hence, the present suit has been filed by the plaintiff.
3. On receipt of present suit, the defendants no. 2 and 3 were served through summons on 16.03.2022, however, summons issued to defendant no. 1 received back unserved with report 'locket'. Defendant no. 1 was served through publication in the newspaper 'The Times of India' on 21.05.2022 but despite service none appeared on behalf of defendants and consequently, defendants no. 2 and 3 were proceeded ex-parte vide order dated 07.06.2022 and defendant no. 1 was proceeded ex parte vide order dt. 22.08.2022 passed by Ld. Predecessor of this court.
4. I have heard learned counsel for plaintiff and gone through the records.
5. Before embarking upon the facts of the case, let us recapitulate the evidence of plaintiff in this case. PW-1, Ms. Sneha Bhati has filed her CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 4/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:13:42 +0530 affidavit in evidence relying upon following documents :-
Sl. Documents Exhibit/ Marked Pages
No.
1. Authority letter dt. Ex. PW1/1 1
20.04.2023
2. Authority letter dt. Ex.PW1/2 1
11.08.2020 authorizing
Mr. Sudhandhu Sahoo
3. Pending invoices against Ex. PW1/3 to Ex 69 the services rendered by PW1/70 plaintiff (which are respectively mentioned in para no. 10 of the affidavit from Sr. no. 1 to Sr. no. 68) 4. Affidavit under section Ex. PW1/71 6 65 B of Indian Evidence Act in respect of invoices 5. Copy of Forms 15 CB Ex. PW1/72 8 6. Print out of email dt. Ex PW1/73 1 18.11.2019
7. Print out of email dt. Ex PW1/74 (same 22.04.2020 is de-exhibited as document is not on record) 8. Copy of demand notice Ex PW1/75 (colly) 8 dt. 30.04.2020 issued by the plaintiff firm 9. Conversation tape Ex PW1/76 1 between plaintiff and defendant no. 2 10. True encryption of Ex PW1/77 3 conversation tape
11. Print outs of emails Ex PW1/78 (colly) From page conversations between no. 243 to plaintiff company and page no. 269 CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 5/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:13:50 +0530 defendants filed alongwith the suit.
From page no. 16 to page no. 144 filed alongwith additional documents 12. Affidavit under section Ex PW1/79 3 65 B of Indian Evidence Act in respect of emails 13. Statement of account Ex PW1/80 4 maintained by plaintiff
6. It is well settled proposition of law by numerous dictum of the Hon'ble Apex Court that plaintiff has to prove its case on merits even in ex- parte cases. Unchallenged and uncontroverted testimony has to be shifted to check the claim of plaintiff and relief prayed for against the defendant, who preferred not to join the proceedings.
7. The entire verbal testimony as well as the documentary evidence adduced on record has gone unchallenged and uncontroverted as defendants remained ex-parte throughout the proceedings.
8. As per suit of plaintiff, plaintiff provided legal services to the defendant since the year 2014 but plaintiff has not filed copy of any agreement executed between plaintiff and defendant. Further, admittedly plaintiff and defendant company had repeated email communications but despite that, plaintiff has not filed any email whereby defendant has agreed CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 6/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:13:58 +0530 to avail the services of plaintiff and the rate of payment and mode of payment have also been agreed between parties. Most of the emails out of Ex. PW-1/78(colly) have been addressed by the plaintiff to the defendant and there is no email in response to the said emails whereby any acknowledgment has been issued by the defendant to the plaintiff towards the services rendered by the plaintiff to the defendant. Interestingly, plaintiff has relied upon the emails addressed to defendants but plaintiff has not filed copy of attachments attached with these emails.
Plaintiff has not filed anything to prove that defendant no. 2 was director of defendant no. 1 company nor anything has been filed to prove the email address of defendant company.
Further, plaintiff has relied upon the invoices Ex. PW-1/3 to Ex. PW- 1/70 and all these invoices are photocopies and there is no receiving or acknowledgment of the opposite party on these invoices. As per plaintiff, there was regular e-communication between plaintiff and defendants, but strangely plaintiff has filed any email showing that these invoices were regularly sent to defendants, as and when raised.
Further, plaintiff has relied upon form 15 CB Ex. PW-1/72 and it has been stated this document shows that plaintiff has disclosed the services provided to the defendant in the said certificate. I have gone through the document Ex. PW-1/72 and it mentions that plaintiff has provided services but it nowhere mentions that services have been provided to the defendant company only. Moreover, plaintiff company being a law firm must be providing services to many other persons and this form Ex. PW-1/72 CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 7/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:14:05 +0530 cannot be considered as conclusive proof of the fact that plaintiff had provided services to the defendant.
The issue to be considered is had the plaintiff been an individual advocate, how he/she would have proved that he/she provided services to the defendant and the answer is - by showing the agreement or vakalatnama or any authority letter or by showing the appearance in the concerned Court mentioning the representation of the advocate or by filing the documents which might have been filed by the advocate in respective Court on behalf of his client. In the present suit, none of these has been filed. Even during clarifications, plaintiff was asked about the same and it was categorically stated on behalf of plaintiff that plaintiff has no other documents to show that defendant availed the services of plaintiff and plaintiff completed the services.
Moreover, in the present case, as per plaintiff, plaintiff had been providing the services to the defendant since year 2014 but strangely plaintiff has not maintained a proper statements of account since the year 2014 qua the defendant disclosing as to how many bills in total have been raised and how many have been paid and how many remained unpaid. The ground that record is bulky, cannot be considered as reasonable to withhold with the material documents specifically when plaintiff is a law firm having legal expertise.
Further, plaintiff has relied upon the conversation tape Ex. PW-1/76 and its encryption Ex PW-1/77 and it is stated that in this conversation, defendant no. 2 had admitted the liability of the defendant's company CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 8/9 Dated 27.07.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:14:14 +0530 towards the pending invoices. Perusal of these two shows that it is an alleged conversation between defendant no. 2 and Advocate Sh. Vibhor Gupta and not between defendant no. 2 and PW-1 (Sneha Bhati), so how PW-1/Sneha Bhati can prove the same and it is also questionable in which capacity Sh> Vibhor Gupta called defendant no. 2 and recorded the conversations. Further as per this conversation, one matter is pending in NCLT against defendant's company wherein assets and liabilities of defendant no. 1 company has been seized but no details have been disclosed by plaintiff in the pleadings or evidence regarding the same.
Thus, plaintiff has failed to prove the existence of a legally enforceable contract between plaintiff and defendant and has also failed to prove the factum that plaintiff provided legal services to the defendant and has also failed to prove that bills/invoices have been raised properly and statements of account maintained properly, both received and acknowledged by the opposite party. Thus, plaintiff has failed to discharge the burden of proof to prove its case.
In view of above discussion, the suit of the plaintiff is dismissed. No orders as to costs.
9. Decree sheet be drawn accordingly and file be consigned to Records after due compliance. Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.07.30 22:14:21 +0530 Announced in the Open Court (Prabh Deep Kaur) Dated: 27th July, 2024. District Judge-05 South-East District, Saket Court CS DJ no. 329/20 Khurana and Khurana vs. V. Care Technologies Pvt. Ltd. Page No. 9/9 Dated 27.07.2024