Delhi District Court
Residence Of vs M/S. Rai Bahadur Singh Sugar Mills ... on 8 May, 2018
IN THE COURT OF MS. NAMRITA AGGARWAL, SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS No 57575/16
M/s. Velentina Enterprises
Through Managing Proprietor
Mr. Sudhir Kumar Singh
A-327/4, Maidan Garhi Road,
Chattarpur Enclave Phase-II
New Delhi 110074
Residence of
G-2, B-303,
Surya Apartment, Chattarpur Enclave
Phase-II, New Delhi 110074 .... Plaintiff
Versus
M/s. Rai Bahadur Singh Sugar Mills Limited.
Through: Mr. Khandelwal, General Manager
Registered office : 2, Kasturba Gandhi Marg,
New Delhi.
Admn. Office : Flat No. 43, B Block,
Middle Circle, Connaught Place,
New Delhi 110001 ..... Defendant
Date of institution : 25.07.2014
Date of final arguments : 07.04.2018
Date of judgment : 08.05.2018
M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 1 of 16
JUDGMENT
1 A suit for recovery of Rs. 2,28,589.55 has been filed by the plaintiff M/s. Velentina Enterprises against the defendant M/s. Rai Bahadur Singh Sugar Mills Ltd. through its General Manager.
2 The case of the plaintiff is that the plaintiff is a leading Consultancy Sole Proprietorship working under the name and style of M/s. Velentine Enterprises for providing Insurance Consultancy services to large corporate houses and business entities. That the present suit has been filed by M/s. Velentina Enterprises through its Managing Proprietor Sh. Sudhir Kumar Singh. The defendant company is engaged in the business under the name and style of M/s. Rai Bahadur Singh Sugar Mills Ltd. having its office at 2, Kasturba Gandhi Marg, New Delhi . That in the month of March, 2012 defendant had suffered a heavy loss due to an impact by road vehicle accident of a tank carrying molasses of defendant due to which 29949 quintile of molasses were lost. The plaintiff being an Insurance claim consultant was approached by the defendant to be appointed as claim consultant of the claim on loss of molasses and tank due to impact by road vehicle accident.
3 The defendant thereafter appointed the plaintiff as a claim consultant and mutually entered into a written contract with regard to the duties and remuneration for the work to be done vide letter dt. 09.04.2012. Pursuant to the contract, the plaintiff visited the Surveyor's M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 2 of 16 office ie. M/s. Aditi Consultants Pvt. Ltd., Darya Ganj, Delhi and even filed a voluminous compilation of documents dt. 24.05.2012 before the Surveyor. It is averred by the plaintiff that its job involved documentation,co-ordination, appearance before grievance officer, approval and finally settlement of the claim of the defendant. Pursuant thereto, the plaintiff succeeded in settling the claim of damages of defendant for an amount of Rs. 94,30,530/- from Oriental Insurance Company Ltd. In view of the work done and services rendered by the plaintiff, an invoice dt. 09.01.2014 was raised for a sum of Rs. 2,08,723.64/- minus Rs. 50,000/- which was taken as advance payment by the plaintiff from the defendant. However, due to persistent non payment of the outstanding dues, a legal notice dt. 07.05.2014 was served by the plaintiff upon the defendant demanding the principal sum alongwith the interest @ 18% per annum. However, no reply to the notice was sent by the defendant nor any payment was made. Hence the present suit.
4 Written statement filed by the defendant denying the contentions made by the plaintiff and stating that this court does not have territorial jurisdiction to try and entertain the present suit. Further, it is submitted by the defendant that the letter dt. 09.04.2012 written by the defendant to the plaintiff was a conditional offer wherein it was clarified that plaintiff would be paid finally only if, it satisfies all the conditions of the letter dt. 09.04.2012 and fulfills all the job work specified in the said letter. It is further submitted that it was the plaintiff who had approached the defendant and represented itself to be an M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 3 of 16 insurance claim consultant. Further, defendant had given a letter of offer dt. 09.04.2012 to the plaintiff alongwith Rs. 50,000/- as advance to the plaintiff. That inspite of being paid Rs. 50,000/- as advance, plaintiff did not fulfill any of its duties as mentioned in letter dt. 09.04.2012 i.e to make detailed study of the claim of the defendant after co-ordinating and interacting with the executives of the defendant and also representing the defendant before the Insurance company, Surveyor and Loss Assessor and get the claim of defendant expedited. Further, the plaintiff also had not drafted and filed on behalf of the defendant all the documentation before all the concerned authorities to get the claim of defendant settled and the job of the plaintiff was not to get over till the time the claim of defendant was not approved by all the authorities. However, the plaintiff after taking the initial advance amount totally abandoned the cause of the defendant and it was the executives of the defendant only who had to coordinate with the Insurance Company , Surveyor and Loss Assessor for getting the claim of the defendant settled. That Sh. R K Awasthi, Sr. Manager of the defendant and Sh. Vivek Aggarwal one of the employee of defendant regularly visited the Insurance Company, Surveyor and Loss Assessor without any support of any of the officials of the plaintiff to get the claim of the defendant settled. That the plaintiff even did not provide any back end support to the defendant.
5 Replication to the written statement filed by the plaintiff denying the contentions made by the defendant and further reaverring what was averred in the plaint. As per the plaintiff, the registered office M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 4 of 16 of defendant is at Delhi. The defendant approached the plaintiff at its Delhi office and vide letter dt. 09.04.2012 plaintiff was appointed as claim consultant in Delhi itself. Even the invoice was raised from the Delhi office. It is further submitted that the plaintiff company through exchange of mails and follow up through phone calls with defendant, Insurance company and Surveyor got the claim of the defendant settled from the Insurer in December 2013. That it was the plaintiff who had prepared all the documents and drafted replies to the letter of requirement/clarifications. However, being a Consultant , plaintiff was neither the employee of the defendant company nor was authorized signatory and thus had no power to directly communicate with or send letter under his signature to the insurer and surveyor on behalf of the defendant.
6 However, after the completion of the pleading, three applications were filed under Order 1 Rule 10 CPC, Order 7 Rule 14 CPC as well as 6 Rule 17 CPC by the plaintiff for substitution of Mrs. Sneh Malviya Singh as plaintiff in the present suit and place on record GAP in favour of Sh. S K Singh to pursue the case since M/s. Velentina Enterprises is the sole proprietorship concern of Mrs. Sneh Malviya Singh. The said applications were allowed by the Ld. Predecessor of this court holding that there was a bonafide mistake in the filing the suit in the name of Sh. S K Singh on behalf of M/s. Valentina Enterprises and the said mistake should be allowed to be rectified. Thus, all the applications filed by the plaintiff were allowed and subsequently amended plaint was filed wherein Mrs. Sneh Malviya Singh was stated M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 5 of 16 to be the proprietor of the plaintiff company who had authorized Sh S K Singh, her husband to pursue the present case on her behalf by executing a GPA in his favour.
7 From the pleadings of the parties, following issues arose:
1 Whether the plaintiff is entitled to a decree for recovery of Rs. 2,28,589.55 with pendentelite and future interest @ 18 % per annum? OPP 2 Whether this Court does not have territorial jurisdiction to try the present suit ? OPD 3 Whether Mr. Sudhir Kumar Singh has any authority to act on behalf of the plaintiff while dealing with the defendant ? OPD 4 Whether there was no concluded contract in terms of letter dt. 09.04.2012? OPD 5 Whether the plaintiff failed to fulfill his duties in terms of letter dt. 09.04.2012? OPD 6 Relief.
8 During evidence, Sh. S K Singh, AR/Managing Director of plaintiff company entered into the witness box as PW 1 and deposed on the lines of the plaint. He further relied upon the following documents:
a) Defendant company details as per MCA portal as Mark A.
b) Letter of appointment dt. 09.04.2012 as Ex. PW 1/2.M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 6 of 16
c) Letter dt. 24.05.2012 having stamped and singed of Surveyor at point X as Ex. PW 1/3
d) Communication between plaintiff and defendant through various mails and letters between the period 2012 to 2013 Ex. PW 1/14 and certificate under section 65 B of Indian Evidence Act , 1872 as Ex. PW 1/5
e) Invoice dated 09.01.2014 as Mark B.
f) Letter dt. 20.03.2014 alongwith courier receipt Ex. PW 1/7
g) Legal notice dt. 07.05.2014 alognwith original postal receipt as Ex. PW 1/8.
h) Original letter with envelope alongwith delivery confirmation as Ex. PW 1/9 (colly)
i) Power of attorney as Ex. PW 1/10.
9 Defendant in its turn, examined Sh. Vivek Aggarwal, Chief Financial Officer of defendant as DW 1. He deposed in sync with the written statement and further relied upon the following documents:
1. Officer copy of letter dt. 09.04.2012 given by defendant to the plaintiff /Mr. Sudhir Kumar Singh as Ex. DW 1/1.
2. Office copy of letter dt. 15.05.2013 written by me to the Divisional Manager Oriental Insurance Company Ltd. as Ex. DW 1/2 .
3. Office copy of letter dt. 01.06.2013 written by me to the Senior Divisional Manager Oriental Insurance Company Ltd. as Ex. DW 1/3.M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 7 of 16
4. Office copy of letter dt. 29..06.2013 written by me to the Regional Manager Oriental Insurance Company Ltd. as Ex. DW 1/4.
5. Office copy of letter dt. 11.11.2013 written by me to the Senior Divisional Manager Oriental Insurance Company Ltd. as Ex. DW 1/5.
6. Letter dt. 16.06.2002 written by me to M/s. Aditi Consultants, Surveyor and Loss Assessor as Ex. DW 1/6.
10 I have heard the contentions of both the parties and have gone through the records. My issuewise findings is as below:
ISSUE No. 4Whether there was no concluded contract in terms of letter dt. 09.04.2012? OPD
11 The onus to prove this issue was upon the defendant. It is claimed by the defendant that there was no concluded contract between the plaintiff and defendant interms of letter dt. 09.04.2012 Ex. PW 1/2. However, it is averred by the plaintiff that defendant had appointed the plaintiff as a claim consultant for the defendant company by way of letter Ex. PW 1/2 and even had given an amount of Rs. 50,000/- as advance to the plaintiff alongwith the said letter Ex. PW 1/2. Perusal of letter Ex. PW 1/2 clearly shows that the said letter has been addressed to the plaintiff by the defendant through its General Manager wherein the M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 8 of 16 defendant has "confirmed" the appointment of plaintiff as a claim consultant on its loss of molasses and tank due to impact by road Vehicle on 27.03.2012. Further, it has been specifically mentioned in the said letter that the said appointment of plaintiff has been confirmed after the offer of the plaintiff dt. 31.03.2012 and the discussion of the plaintiff with the defendant. Thus, from the wordings of the said document Ex. PW 1/2 it is clear that an offer was already made by the plaintiff to the defendant to be appointed as a claim consultant and by virtue of letter Ex. PW 1/2 dt. 09.04.2012 the defendant had confirmed the appointment of the plaintiff as a claim consultant. Further the attaching of the cheque of Rs. 50,000/- as an advance by the defendant to the plaintiff, qualifies the intention of defendant to confirm the appointment of plaintiff as a claim consultant since, if the said letter would have been the offer only, no cheque for advance payment would have been attached with the said letter. Thus, the letter Ex. PW 1/2 is clearly in the form of a contract by which the offer of plaintiff was accepted by the defendant and was attached with the consideration amount of Rs. 50,000/- as advance wherein even the details of the job to be undertaken by the plaintiff pursuant to the said letter dt. 09.04.2012 were clearly specified.
12 Thus, the essential ingredients which are necessary for conclusion of contract between the parties have been duly fulfilled by way of letter Ex. PW 1/2 and thus the letter can be safely, concluded as a contract between the plaintiff and the defendant.
M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 9 of 16No evidence has been led by the defendant as to which ingredient, which is necessary for conclusion of contract between the parties have not been materialized in the present letter and therefore, this issues is decided in favour of the plaintiff and against the defendant.
ISSUE No. 5Whether the plaintiff failed to fulfill his duties in terms of letter dt. 09.04.2012? OPD 13 The onus to prove this issue was upon the defendant. It is averred by the defendant that the plaintiff had failed to perform the duties as per the conditions specified in letter Ex. PW 1/2. As per the defendant, the job of the plaintiff pursuant to the execution of the letter Ex. PW 1/2 was to make and represent the defendant before the Insurance Company, Surveyor and Losses Assessor and coordinate and interact with the executives of defendant. The plaintiff was required to draft and file all the documentations on behalf of the defendant to get the claim of defendant approved and the job of plaintiff was to continue till the settlement of the claim of the defendant. However, as per the defendant, the plaintiff abandoned the cause of the defendant after receiving the initial advance of Rs. 50,000/-. It is averred by the defendant that all the mails and communications with the Insurance Company or Surveyor or Loss Assessor were done by Sh. R K Awasthi and Sh. Vivek Aggarwal who were the employees of the defendant only. Per contra, it is submitted by the plaintiff that it was the plaintiff who had M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 10 of 16 prepared all the voluminous documentation on behalf of the defendant to be put before the Surveyor and Loss Assessor and had also visited the office of Surveyor M/s. Aditi Consultants Pvt. Ltd. at Darya Ganj, Delhi. After the tedious and laborious work of documentation, coordination , visit to grievance office, the plaintiff was succeeded in settling the claim of damages for an amount of Rs. 94,30,530/-. In order to prove its case, plaintiff has relied upon the various mails Ex. PW 1/4 (colly) alongwith certificate under section 65 B of Indian Evidence Act Ex. PW 1/5. However, it is claimed by the defendant that all these mails relates to interaction of plaintiff with the employees of defendant only and not with the Loss Assessor, Surveyor or Insurance Company. Perusal of these mails clearly show that it was the plaintiff who had prepared all the drafts, reply letters and documentation on behalf of the defendant and then had forwarded these drafts to the employees of defendant for finalization who in turn further forwarding them to the Surveyor, Loss Assessor or Insurance Company. Thus, it was the plaintiff who had provided back end support to the defendant in the entire settlement of the claim of the defendant and had prepared the drafts, subrogation letter and replies. The job of the defendant was only to finalize the letters sent by the plaintiff and then forward the same to the concerned authorities. It cannot be thus concluded that the plaintiff had abandoned the cause of the defendant or had not played any role in the settlement of the claim of the defendant. This issue is thus decided against the defendant and in favour of the plaintiff.
M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 11 of 16 ISSUE No. 1Whether the plaintiff is entitled to a decree for recovery of Rs. 2,28,589.55 with pendentelite and future interest @ 18 % per annum? OPP 14 The onus to prove this issue was upon the plaintiff. It is averred by the plaintiff that despite providing service to the defendant for settlement of the claim of the defendant, the defendant failed to make the required payment / fee to the plaintiff due to which even a legal notice Ex. PW 1/8 was also served upon the defendant. However, the defendant neither replied to the said notice nor made the payment to the plaintiff as per the invoice dt. 09.01.2014 Ex. PW 1/6. Defendant has not denied the appointment of the plaintiff as a claim consultant by virtue of letter Ex. PW 1/2,. It is also not denied by the defendant that the claim of the defendant was duly settled for an amount of Rs. 94,30,530/-. The only averment made by the defendant is that the plaintiff did not fulfill its requisite duties and abandoned the claimed of the defendant though the job of the plaintiff was to interact with the Insurance Company, Surveyor and Loss Assessor, coordinate with them, do all the documentation on behalf of the defendant and get the claim of the defendant settled. PW 1 during his cross examination admitted that the job of the plaintiff was to communicate and interact with all the departments of Insurance Company including Surveyor regarding the claim of the defendant company. It was also admitted by PW 1 during his M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 12 of 16 cross examination that the defendant themselves communicated with various departments of insurance company and got the claim passed. However, it is stated by PW 1 that it had drafted all the letters and suggestions given by the defendant to the Insurance Company. Perusal of emails Ex. PW 1/4(colly) clearly shows that it was the plaintiff who had forwarded the drafts, subrogation letter, replies and various other communications to the defendant for their approval and further forwarding them to the requisite Surveyor/ Loss Assessor and Insurance company. However, since the plaintiff was not authorized by the defendant to communicate directly with the Surveyor or Loss Assessor, therefore, after approval of the drafts/letters, it was the defendant only who had to forward the final document to the Surveyor, loss assessor and Insurance company. Thus, from these mails it is clear that it was the employee of defendant who communicated with Insurance company/ surveyor/ loss assessor but the same was based only upon the drafts prepared and suggestions given by the plaintiff to the employees of defendant. That being the case, it cannot be said that the plaintiff has abandoned the claim of the defendant or had not provided any services to the defendant. In fact it was the plaintiff who had provided all the back end support to the defendant and its employees for the settlement of the claim of the defendant till the said claim was duly settled. Thus the plaintiff is entitled for the requisite fee as per document Ex. PW 1/2 ie. 2.5 % of the claim amount. Thus this issue is decided in favour of the plaintiff and against the defendant and plaintiff is entitled to receive M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 13 of 16 the principal amount of Rs. 2,28,589.55 alongwith the interest @ 6% per annum which is the prevalent market rate of interest.
ISSUE No. 2Whether this Court does not have territorial jurisdiction to try the present suit ? OPD 15 The onus to prove this issue was upon the defendant. It is averred by the defendant that this court does not have territorial jurisdiction to try and entertain the present suit since the factory of the defendant is situated at Laksar Uttrakhandand, the accident also took place at Laksar Uttrakhand and the office of the Insurance company is also not situated in Delhi. However, it is stated by the plaintiff that the registered office of defendant is at Delhi and it was the Delhi office only wherein letter of confirmation Ex. PW 1/2 was issued upon the plaintiff. Perusal of the letter Ex. PW 1/2 shows that the Administrative Office of the defendant is at Connaught place, New Delhi and it was the said place from where the letter Ex. PW 1/2 was issued upon the plaintiff who is also situated at New Delhi. Further, even the office of the Surveyor was at Darya Ganj, Delhi. Thus part of cause action took place in Delhi only. It is well settled that expression 'cause of action' means a bundle of facts which gives rise to a right or liability. The facts in the present case are such that a part of these bundle of facts took place at New Delhi . Reliance in this regard is placed upon the judgment tiled as M/s. Patel Roadways Ltd. Vs. M/s. Prasad M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 14 of 16 Trading Company AIR 1992 SC 1514. Thus, this court has territorial jurisdiction to decide the present case. Thus, this issue is also decided in favour of the plaintiff and against the defendant.
ISSUE No. 3Whether Mr. Sudhir Kumar Singh has any authority to act on behalf of the plaintiff while dealing with the defendant ? OPD 16 The onus to prove this issue was upon the defendant. It is averred by the defendant that Sh. Sudhir Kumar Singh had no authority to act on behalf of the plaintiff since the plaintiff company is a sole proprietorship of Ms. Sneh Malviya ie the wife of Sh. Sudhir Kumar Singh. It is thus averred by the defendant that the suit has not been validly instituted by Sh. S K Singh on behalf of the plaintiff. Perusal of record shows that vide order dt. 15.02.2017, it was held by Ld. Predecessor of this court, that Sh. S K Singh and Sneh Malviya are husband and wife and there is no conflict of interest between the two. Further all the transactions have been carried out by the defendant either with Sh. S K Singh in his name or in the name of M/s. Valentina Enterprises and thus no prejudice would be caused to the defendant. Thus the plaintiff was allowed to amend the suit. Sh. S K Singh being the husband of the sole proprietor of plaintiff company and the Managing Director of the proprietorship concern is well within his rights to institute the present suit on behalf of the plaintiff. Thus this issue is also decided in favour of the plaintiff and against the defendant.
M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 15 of 16Relief.
17 In view of the above discussion, the suit of the plaintiff is decreed. No order as to cost.Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open ( NAMRITA AGGARWAL)
court on 08.05.2018 SCJ-CUM-RC:PHC:NEW DELHI
M/s. Velentina Enterprises Vs. M/s. Rai Bahadur Singh Sugar Mills Ltd. Page 16 of 16