Bangalore District Court
To Create And Produce Programming ... vs No.1 However on 9 April, 2021
1
Com.OS.No.17/2019
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,AT BENGALURU (CCH.83)
THIS THE 9TH DAY OF APRIL 2021 .
PRESENT:
SRI.DEVARAJA BHAT.M.,B.COM,LL.B.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.OS.No.17/2019
BETWEEN:
M/s Timbre Media
Private Limited, A
Company registered
under the Companies
Act, 1956, having its
Office at No.10/4, 2nd
Floor, Mitra Towers,
Kasturba Road,
Bengaluru -560 001,
represented by its
Director Shri. Hemant
Shankar Motipalle.
: PLAINTIFF
(Represented by M/s
Dhananjay Joshi
Associates-Advocates)
AND
1. Ms. Simi Sanilkumar,
major, Daughter of Sri.
2
Com.OS.No.17/2019
Sanathanan K. Thara,
Amrutha Nagar,
Kaimanam,
Pkappanamcode PO,
Trivandrum, Kerala -695
018.
2. M/s Medon Radio &
Television Productios
LLC,
Both the Defendant
Nos.1 and 2 are residing
at PO Box No.393128,
Dubai, United Arab
Emirates
: DEFENDANTS
(Defendants are placed
exparte)
Date of Institution of the suit 21.02.2019
Nature of the suit (suit on
pronote, suit for declaration &
Possession, Suit for injunction Suit for recovery of money
etc.)
Date of commencement of
recording of evidence 16.03.2021
Date of First Case Not held
Management Hearing
Time taken for disposal from 15 days
the date of conclusion of
arguments
Date on which judgment was 09.04.2021
pronounced
3
Com.OS.No.17/2019
Total Duration Year/s Month/s Day/s
02 01 19
(DEVARAJA BHAT.M),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by the Plaintiff to direct the Defendants to pay AED 15,67,295/- along with interest at the rate of 12% per annum from the date of suit till realization.
2. The contentions of the Plaintiff in brief are as follows:-
That the Plaintiff is carrying on the business of audio programming and other media services for both domestic and international markets, that the Defendant No.1 is in the business of executing programming strategy, specially providing programming support and consultancy services for the radio station 'Radio Red 94.7' broadcast in Dubai, that the Defendant No.1 operates her business in the name and style of Defendant No.2 and the Defendant No.1 has, at all relevant times, dealt directly and in her own name with the Plaintiff, that 4 Com.OS.No.17/2019 in 2015, one Equity Plus Advertising LLC had approached the Plaintiff to create and produce programming content for the said Radio Channel then being managed by the said Equity Plus Advertising LLC, that the Plaintiff and the said company entered into an Agreement dated 10.08.2014, setting out the terms and conditions for the provisions of the Plaintiff's services, that on 15.06.2015, the said Company under the Assignment Agreement dated 15.06.2015, assigned all its rights, obligations, responsibilities and liabilities under the Agreement dated 10.09.2014 to the Defendants, that pursuant thereto, the Plaintiff continued to provide its services to the Defendants and raised invoices in terms of the Agreement from time to time on the Defendants, that though the Defendants made some intermittent payments by the middle of 2016, the amount owed by the Defendants to the Plaintiff under various pending invoices aggregated to a sum of AED 8,96,124/-, that by letter dated 29.04.2016, the Plaintiff set out a complete Statement of Account and requested the Defendants to acknowledge and confirm the amount due and payable to the Plaintiff by way of an e-mail and accordingly the Defendant No.1 confirmed that the said Statement of Account was accurate by an e-mail dated 02.05.2016, that the Defendant No.1 issued a Cheque bearing No.9 for the sum of AED 8,96,124/- and requested the Plaintiff not to present it immediately as she needed some time to 5 Com.OS.No.17/2019 arrange for funds, that relying on the Defendants' assurance, the Plaintiff continued to provide its services and raised few more invoices, that by letter dated 18.11.2016, the Plaintiff set out its updated Statement of Accounts, reflecting an amount of AED 12,38,968/- due and payable by the Defendants to the Plaintiff, that eventually realising that the Defendant No.1 had no intention of making good her promise to clear the dues, the Plaintiff presented the said cheque, but the same was returned dishonoured, that as per the law prevailing in Dubai, the Plaintiff initiated criminal proceedings against the Defendant No.1, that the Defendant No.1 absconded and went into hiding, that however she intermittently contacted the Plaintiff over phone or by emails, making various offers for settlement, but it later became apparent to the Plaintiff that the Defendant No.1 never had any intention of settling the Plaintiff's dues, that on 05.02.2018, the Criminal Complaint filed by the Plaintiff was concluded and the Defendant No.1 was held guilty, convicted and sentenced to imprisonment for six months, that the Defendant No.1 however, continued to remain in hiding and did not then and has not till date served her sentence of imprisonment, that as on the date, the Defendants are liable to pay a sum of AED 12,38,968/- together with interest at the rate of 12% thereon from 01.12.2016 till the date of suit which 6 Com.OS.No.17/2019 comes to a sum of AED 3,28,327/- totaling to a sum of AED 15,67,295/- which amounts to Rs.3,05,30,907/- (Rupees Three Crores Five Lakhs Thirty Thousand Nine Hundred and Seven only) with interest at the rate of 12% per annum from the date of suit till realisation and hence, the Plaintiff has filed this suit for the above-mentioned relief.
3. The Defendants remained absent and hence, placed exparte as per orders dated 14.02.2020 and 08.03.2021.
4. Based on the above pleadings, the following points arise for my consideration :-
1. Whether the Plaintiff is entitled for the Suit Claim from the Defendants ?
2. What Order ?
5. During the course of Trial, the Accounts Superintendent of the Plaintiff Company got examined himself as PW.1 and got marked documents as Exs.P.1 to P.9.
6. I have heard the arguments of the learned Advocate for the Plaintiff.
7. My findings on the above Points are as under:
7Com.OS.No.17/2019
1. Point No.1 :- In Affirmative
2. Point No.2 :- As per the final Order for the following reasons.
REASONS
8. Point No.1 :- According to the Plaintiff, the Plaintiff is carrying on the business of audio programming and other media services for both domestic and international markets, that the Defendant No.1 is in the business of executing programming strategy, specially providing programming support and consultancy services for the radio station 'Radio Red 94.7' broadcast in Dubai, that the Defendant No.1 operates her business in the name and style of Defendant No.2 and the Defendant No.1 has, at all relevant times, dealt directly and in her own name with the Plaintiff, that in 2015, one Equity Plus Advertising LLC had approached the Plaintiff to create and produce programming content for the said Radio Channel then being managed by the said Equity Plus Advertising LLC, that the Plaintiff and the said company entered into an Ex.P.2/Agreement dated 10.09.2014, setting out the terms and conditions for the provisions of the Plaintiff's services, that on 15.06.2015, the said Company under the Assignment Agreement dated 15.06.2015, assigned all its rights, obligations, responsibilities and liabilities under the Agreement 8 Com.OS.No.17/2019 dated 10.09.2014 to the Defendants, that pursuant thereto, the Plaintiff continued to provide its services to the Defendants and raised invoices in terms of the Agreement from time to time on the Defendants, that though the Defendants made some intermittent payments by the middle of 2016, the amount owed by the Defendants to the Plaintiff under various pending invoices aggregated to a sum of ED 8,96,124/-, that by Ex.P.5/letter dated 29.04.2016, the Plaintiff set out a complete Statement of Account and requested the Defendants to acknowledge and confirm the amount due and payable to the Plaintiff by way of an e-mail and accordingly the Defendant No.1 confirmed that the said Statement of Account was accurate by Ex.P.4/e-mail dated 02.05.2016, that the Defendant No.1 issued a Cheque bearing No.9 for the sum of AED 8,96,124/- and requested the Plaintiff not to present it immediately as she needed some time to arrange for funds, that relying on the Defendants' assurance, the Plaintiff continued to provide its services and raised few more invoices, that by letter dated 18.11.2016, the Plaintiff set out its updated Statement of Accounts, reflecting an amount of AED 12,38,968/- due and payable by the Defendants to the Plaintiff, that eventually realising that the Defendant No.1 had no intention of making good her promise to clear the dues, the Plaintiff presented the said cheque, but the same was returned 9 Com.OS.No.17/2019 dishonoured, that as per the law prevailing in Dubai, the Plaintiff initiated criminal proceedings against the Defendant No.1, that the Defendant No.1 absconded and went into hiding, that however she intermittently contacted the Plaintiff over phone or by emails, making various offers for settlement, but it later became apparent to the Plaintiff that the Defendant No.1 never had any intention of settling the Plaintiff's dues, that on 05.02.2018, the Criminal Complaint filed by the Plaintiff was concluded and the Defendant No.1 was held guilty, convicted and sentenced to imprisonment for six months as per the Judgment marked as Ex.P.9, that the Defendant No.1 however, continued to remain in hiding and did not then and has not till date served her sentence of imprisonment. Further, he has also produced a file containing several e-mails marked as Exs.P.6 & P.7. The Ex.P.8 is also e-mail dated 28.12.2017 and 29.12.2017. Further, the Advocate for the Plaintiff has also produced necessary Certificate under Section 65-B of the Indian Evidence Act, in respect of admissibility of said e-mails. Hence, the contentions of the Plaintiff is corroborated by the above- mentioned documents. Further, the said e-mail correspondence has its own evidenciary value.
9. Sections 4 and 6 of the Information Technology Act, 2000 provide for legal recognition of electronic records and their use 10 Com.OS.No.17/2019 in Government and its agencies. Section10-A of the said Act specifically provides for validity of contract through electronic means and accordingly provides that such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose. Section 12 of the said Act provides for acknowledgment of receipt including in an automated manner. Section 13 of the said Act provides for time and place of dispatch and receipt of electronic records. Upon careful consideration of all these provisions, it is seen that electronic records have been provided with full legal recognition.
10. Under the provisions of the Information Technology Act, 2000 particularly Section 10-A, an electronic contract is valid and enforceable, which states as follows:-
"Section 10-A: Validity of contracts formed through electronic means:- Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose."
11. E-Contracts can be entered into through modes of 11 Com.OS.No.17/2019 communication such as e-mail, internet and fax. The only essential requirement to validate an E-Contract is compliance with the necessary pre-requisites provided under the Indian Contract Act, 1872.
12. The evidenciary value of e-contracts can be well understood in the light of the Sections 85A, 85B, 88A, 90A and 85C deals with the presumptions as to electronic records whereas Section 65B relates to the admissibility of electronic record. In the present case, there is no dispute about the admissibility of various e-mails exchanged between the parties.
13. Formation of contracts online via emails has been recognized and given validity to by the Indian courts time and again. In the decision reported in 2010(1) - SCALE - 57 (Trimex International FZE Limited, Dubai vs. Vendata Aluminium Ltd.), the parties thoroughly agreed to the terms of the contract via emails. The Hon'ble Supreme Court upheld the validity of this contract and further held as follows:-
"Once the contract is concluded orally or in writing, the mere fact that a formal contract has to be prepared and initiated by the parties would not affect either the acceptance of the contract so entered into or implementation thereof, even if the formal contract has never been initiated."12
Com.OS.No.17/2019
14. In the said case, the Hon'ble Supreme Court after going through the various E-mails exchanged between the parties including an E-mail attaching the draft contract, which remained unsigned, opined as follows:-
"44. From the materials placed, it has to be ascertained whether there exists a valid contract with the arbitration clause. It is relevant to note that on 15- 10-2007 at 4.26 p.m. the petitioner submitted a commercial offer wherein Clause 6 contains the arbitration clause i.e. "this contract is governed by Indian law and arbitration in Mumbai courts". At 5.34 p.m. though the respondents offered their comments, as rightly pointed out by Mr K.K. Venugopal, no comments were made in respect of the "arbitration clause". It is further seen that at 6.04 p.m., the petitioner sent a reply to the comments made by the respondent. Again, on 16-10-2007 at 11.28 a.m., though the respondents suggested certain additional information on the offer note, here again no suggestion was made with regard to the arbitration clause...........".
15. The Hon'ble Supreme Court in the decision reported in (2001) 7 - S.C.C. - 328 (Smita Conductors Limited vs. Euro Alloys Limited), has commented about two contracts and held that one of the party had in his mind those contracts while opening the letters of credit and while addressing the letters to the bank in that regard and had also invoked force majuere clause in those contracts which would obviously mean that the parties had 13 Com.OS.No.17/2019 in their mind those two contracts which stood formed by those letters of credit. It is held by the Hon'ble Supreme Court that if two contracts stood affirmed by reason of conduct of the parties as indicated in the letters exchanged, it must be held that there was an agreement in writing between the parties in that regard. The said judgment of the Hon'ble Supreme Court was specifically approved by the Hon'ble Supreme Court in its subsequent above- mentioned decision reported in 2010(1) - SCALE - 57 (Trimex International FZE Limited, Dubai vs. Vendata Aluminium Ltd.). Therefore, in view of the contents of the said e-mails, it is very clear about the liability of the Defendants to pay the suit claim to the Plaintiff.
16. It is to be noted here that this suit is filed to recover the said amount with interest at 12% per annum from the date of suit till realization. The Plaintiff has contended that the suit transaction is a commercial transaction in nature and hence, the Defendant is liable to pay interest at the rate of 12% per annum . In this suit the Defendants have not contested any of the contentions of the Plaintiff. Further, the oral evidence of the P.W.1 is corroborated by the documentary evidence marked as Exs.P.2 to P.9. When such being the case, the Plaintiff is entitled for the amount claimed in the suit with current and 14 Com.OS.No.17/2019 future interest at 12% per annum as claimed by him.
17. The Plaintiff has claimed the above which is equivalent to amount in foreign currency. The learned Advocate for the Plaintiff has relied on a decision reported in 1984 (Supp) - S.C.C. - 263 (Forasol vs. Oil & Natural Gas Commission), wherein it is held that the decree can be passed for payment in foreign currency by converting the said foreign currency into Indian Rupees. The said ratio is applicable to the present case also. Hence, I answer this Point in "Affirmative".
18. Point No.2 : -Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is decreed.
The Defendants are hereby directed to jointly and severally pay a sum of AED 15,67,295/- (Arab Emirates Dirhams Fifteen Lakhs Sixty Seven Thousand Two Hundred and Ninety Five Only), which is equivalent to Rs.3,05,30,907/- (Rupees Three Crores Five Lakhs Thirty Thousand Nine Hundred and Seven only) along with interest at the rate of 12% per annum from the date of suit till realization.
The Defendants are hereby directed to pay cost of this suit to the Plaintiff. The 15 Com.OS.No.17/2019 Advocate for the Plaintiff is directed to file Memorandum of Cost before the Office within 5 days from today as required under Rule 99 and 100 of Karnataka Civil Rules of Practice.
Draw Decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendants to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
(Dictated to the Judgment Writer, typed by her, corrected and then pronounced by me in open Court on this the 9th day of April, 2021).
(DEVARAJA BHAT.M), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW.1 Sri. Mathewkutty Sebastian LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P-1 Board Resolution dated 15.03.2021 Ex.P-2 Copy of Agreement dated 10.09.2014 16 Com.OS.No.17/2019 Ex.P-3 Agreement dated 15.06.2015 Ex.P-4 E-mail dated 02.05.2016 Ex.P-5 Letter dated 29.04.2016 Ex.P-6 File containing E-mails Ex.P-7 File containing E-mails Ex.P-8 E-mail dated 28.12.2017 Ex.P-9 Certified Copy of Judgment dated 05.02.2018 in Penal Lawsuit No.6257/2018 of Dubai Court LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (DEVARAJA BHAT.M), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
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