Delhi District Court
M/S Brand Stewards Media Services vs M/S Advantage Computers (India) on 3 January, 2022
IN THE COURT OF SHRI MAN MOHAN SHARMA,
DISTRICT JUDGE (COMMERCIAL COURT)-06,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
IN THE MATTER OF :-
CS (Commercial) No. 2723/2019
M/s Brand Stewards Media Services
Private Limited
Through its authorized representative
Sh. Deepak Kumar Sinha
having its office at:-
4316/3, UGF, Ansari Road,
Darya Ganj, New Delhi-110002
.....Plaintiff
VERSUS
1. M/s Advantage Computers (India)
Pvt. Ltd. Through its Director.
2. Sh. Sanjeev Bhatia
3. Sh. Joginder Lal Bhatia
Both Director of
M/s Advantage Computer (India)
Pvt. Ltd.
Both office at:-
7/27, Industrial Area,
Kirti Nagar, New Delhi-15. .....Defendants
Date of Institution : 19.11.2019
Date of Reserve of Judgment : 10.12.2021
Date of judgment : 03.02.2022
CS (Comm.) No. 2723/2019 Page 1 of 22
JUDGMENT
1. The instant suit is a suit for recovery of Rs. 11,55,870/- (Rupees Eleven Lakh Fifty Five Thousand Eight Hundred Seventy only) instituted by plaintiff M/s Brand Stewards Media Services Private Limited, which is a company against the defendant M/s Advantage Computers (India) Pvt. Ltd., which is also a company and the defendant nos. 2 and 3 are its Directors.
Application for Summary Judgment
2. The plaintiff has filed an application under Order XIIIA of the Code of Civil Procedure (hereinafter the Code) seeking a summary judgment on the ground that there has been no specific denial of the claim of the plaintiff by the defendant and in fact the defendants have admitted the claim of the plaintiff.
3. Further the reply to the legal notice dated 28.12.2018 by Sh. Sanjeev Bhatia, the defendant no. 2 on 14.02.2019 admits the services rendered by the plaintiff to defendant as well as the amount due. The averments of plaint have been simply denied and many times the phrase "matter of record" has been used, which tantamount to an admission. There is also an offer to settle the accounts by making a payment of 50% of the outstanding and that too in installments as expressed by an e-mail dated 31.07.2018 of defendant no. 2 Sh. Sanjeev Bhatia. Thus, in sum and substance, the defendants have no defence in their written statement and the suit of the plaintiff is liable to be decreed.
CS (Comm.) No. 2723/2019 Page 2 of 224. The plaintiff has placed reliance upon two judgments of Hon'ble High Court of Delhi viz Su-Kam Power Systems Ltd. vs. Kunwer Sachdev & Anr. reported as 2019 SCC OnLine Del 10764 and Oxbridge vs. Atul Kumar.
5. The application has been vehemently opposed by the defendants by filing a written statement, in which objections to the territorial jurisdiction of the Court have been taken. The case of Rockwool International vs. Thermocare Rockwool (India) Pvt. Ltd., a judgment passed by Hon'ble High Court of Delhi has been cited to bring home the requisites for passing a summary judgment stating that the requisite conditions are not attracted in the present case. Therefore, the plaintiff is not entitled to a summary judgment. It has been submitted that there are triable issues in the matter. The judgment of Hon'ble High Court of Bombay in a case titled as Jayant Kalyani Gilani vs. Ilac Ltd. 2007 has also been cited stating that it has been held in that case that a dispute arising out of supply of goods/services is a genuine triable issues as to the quantity and quality of goods supplied as a ground for stopping payment of cheque. The other averments of the application are denied. It is stated that the application is liable to be dismissed.
Arguments of parties
6. I have heard Sh. S.K. Singhal, ld. Counsel for the plaintiff and Sh. Atul Kumar, ld. Counsel for the defendants. I have also considered the case law referred to.
7. I have narrated and considered the submissions and the CS (Comm.) No. 2723/2019 Page 3 of 22 case law cited.
Brief Facts of Plaint
8. The brief facts of the plaintiff's case are that the plaintiff is a private limited company carrying on the business of advertisements and promotion through print media, hoardings, electronic media, cinema and even organizing etc. The defendants deal in mobile and its accessories under its brand name "(ZOPO SMART PHONE)" for the promotional activities of the said Brand Name. The defendants approached the plaintiff at his office and placed the various orders from time to time for advertising the promotions of the said brand mobiles and mobile accessories through running Ads on the screen of Cinema Hall and also display board/hoardings at different places. Plaintiff also promoted their aforesaid brand through various modes of advertisement as per the requirement and demand of the defendants for the promotion of their aforesaid brand goods. It may also be added that the defendants placed various orders for the promotion of their aforesaid brand activities and the plaintiff issued various bills/invoices against the orders placed by the defendants and promotional activities done by the plaintiff.
9. The plaintiff as per the orders placed by the defendants duly displayed and advertised the said brand product of the defendants by pasting flex on hoardings and also advertised the said brand by running in different Cinema Halls at the different places of the country as per the orders and requirement of the defendants.
CS (Comm.) No. 2723/2019 Page 4 of 2210.Plaintiff company has been regularly maintaining the accounts books during the course of business and on 31.10.2019, a sum of Rs. 8,40,457/- (Rupees Eight Lakh Forty Thousand Four Hundred Fifty Seven only) has been outstanding against the defendants in the account books of the plaintiff company, which are regularly maintained by the plaintiff in due course of its business. Plaintiff received the last payment from the defendants through cheque for a sum of Rs. 1,00,000/- (Rs. One Lakh only) on 16.09.2017.
11.Plaintiff had been continuously requesting the defendants to pay the balance payment of Rs. 8,40,457/- (Rs. Eight Lakh Forty Thousand Four Hundred Fifty Seven only) and then the defendant no. 2 Sh. Sanjeev Bhatia sent the e-mail dated 31.07.2018 with enclosing the ledger account of the plaintiff duly maintained by the defendants during the course of business and admits therein that the plaintiff and defendants have done a business of about Rs. 90,00,000/- (Rs. Ninety Lakh only) and nearly a sum of Rs. 7,00,000/- (Rs. Seven Lakh only) is outstanding/unpaid against the defendants. Defendant no. 2 also offered to settle the amount in 50% payment towards the outstanding and also offered to the pay the said 50% payment in installment of Rs. 25,000/- to Rs. 50,000/- every month.
12.While checking/reviewing the aforesaid ledger account sent by the defendant no. 2 (director of defendant no. 1 company) to the plaintiff, the plaintiff found that there were some discrepancies into their account as compare to the account maintained by the plaintiff. Hence, the plaintiff CS (Comm.) No. 2723/2019 Page 5 of 22 found that there were some discrepancies into their account as compare to the account maintained by the plaintiff. The plaintiff also sent the reply through email dated 16.08.2018 to the defendant no. 2 Sh. Sanjeev Bhatia and informed the defendants to rectify the same and also requested the defendants to send back corrected account statement to the plaintiff. The plaintiff also informed the defendants in the same email dated 16.08.2018 that the defendants have shown TDS deduction @ 2% in the ledger but the same was not reflecting in Form 26AS. The defendants deducted the TDS but the same was never deposited by the defendants.
13.The defendants are liable to pay the amount i.e. Rs. 8,40,457/- (Rs. Eight Lakh Forty Thousand Four Hundred Fifty Seven only) along with interest @ 18% per annum on the delayed payments as duly agreed between the plaintiff and the defendants and also duly shown in the bills/invoices sent to the defendants.
14.As per the plaint, a sum of Rs. 11,55,870/- (Rs. Eleven Lakh Fifty Five Thousand Eight Hundred Seventy only) stood due to the plaintiff from the defendants and the details of the amount is as under:-
Principal Amount Rs. 8,40,457/-
Interest Rate @ 18% per Rs. 3,15,413/-
annum w.e.f. 01.10.2017
to 31.10.2019
Total Rs. 11,55,870/-
15.The narration regarding the territorial jurisdiction in plaint CS (Comm.) No. 2723/2019 Page 6 of 22 is that the defendants placed the orders for promoting their goods at the office of the plaintiff at Delhi. The defendants are liable to pay the amount of the service made by the plaintiff for promoting their products at Delhi. The defendant also made the last payment for a sum of Rs. 1,00,000/- through cheque at the office of the plaintiff at Delhi and the plaintiff also depositing the said cheque at Delhi. Hence, this Court has jurisdiction to try the present suit.
Brief Facts of Written Statement
16.In their written statement, the defendants have opposed the claim of the plaintiff and have taken objections as to territorial jurisdiction and other aspects.
17. It has been stated that the invoices etc. as pressed into service by the plaintiff are not reliable for the reason that any person can take receiving of any documents at the reception counter of the defendant no.1. Therefore, the receiving of invoices cannot be assumed acknowledgement of the invoices/outstanding to be true unless verify the authenticity and satisfaction of the services provided physically in this context. The defendants found nothing when the defendants visited those places where the plaintiff advertised for the defendants as averted in the plaint. There has been no cause of action even arisen in the favour of plaintiff and against the defendants. The Court has no territorial jurisdiction to entertain the present suit.
CS (Comm.) No. 2723/2019 Page 7 of 2218.The written statement admitted that the defendant no. 1 through its directors i.e. defendant no. 2 and 3 was dealing in Mobile and Mobile accessories goods and sell their goods under the special brand name "ZOPO SMART PHONE". It is not disputed that the defendants rendered service of the plaintiff but the same was for a very limited period and a very limited extent. Neither any documentary evidence of purchase order had been placed by the plaintiff nor any documentary evidence like picture/image of the work done by the plaintiff for the defendants has been placed on record. Any receiving by the defendants, as mentioned over the attached invoices/bills with the plaint, are not acknowledgement of pending dues of invoices because any person can take receiving of any document at the reception counter in normal course of business of the defendants.
19.It has further been submitted that it is a matter of record that plaintiff received the last payment from the defendants through cheque for a sum of Rs.1,00,000/- (Rupees One Lakh only) on 16.09.2017. Hence, no reply needed for the same. It is admitted that the defendant nos. 2 and 3 are the Directors of defendant no. 1 company but it is denied that Directors are personally placed the orders of the plaintiff for their company and even defendant no. 2 personally promised to pay the balance amount and it is admitted that defendants are responsible to maintain and run the company as per the Companies Act but it is denied that they are responsible to return the balance amount as there CS (Comm.) No. 2723/2019 Page 8 of 22 is no balance amount.
20.The Written Statement further pleaded that it is also a matter of fact that the plaintiff has sent a legal demand notice by registered post and also by speed post at two addressees of the defendants available with the plaintiff i.e. at 3/20A, Industrial Area, Kirti Nagar, New Delhi-110015 and also at 7/27, Industrial Area, Kirti Nagar New Delhi- 110015 but the aforesaid notice was duly served on 7/27, Industrial Area, Kirti Nagar, New Delhi-110015 and notice sent on 3/20, Industrial Area, Kirti Nagar, New Delhi were returned back vide endorsement that the addressee "LEFT" the address. It is further a matter of fact that the defendant no. 2 Sh. Sanjeev Bhatia, Director of the defendant no. 1 company sent the reply dated 14.02.2019 to the aforesaid legal demand notice of the plaintiff. However, the defendants never denied business relationship up to some extent but it is vehemently denied that the defendants admitted in said reply any amount due to the plaintiff from the defendants.
21.As regards the territorial jurisdiction, the defendants stated that it is a matter of fact that the plaintiff is running his business at Delhi, however, they vehemently denied that the defendants placed the orders for promoting their goods at the office of the plaintiff at Delhi.
Analysis, Findings and Reasons
22.A trial in a civil suit commences on the identification of the issues. These issues may be issues of facts, or issues of CS (Comm.) No. 2723/2019 Page 9 of 22 law. If the case entirely depend in a pure question of law, it can be disposed of by a judgment on the preliminary issue, more pertinently, if such issue pertains to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. It has been so provided under Order XIV Rule 2 of the Code. But this is not the only exit gate for a lis. If a party fails to present written statement called for by the Court, a judgment may be pronounced against it under Order VIII Rule 10 of the Code. Order VII Rule 11 provides for rejection of plaint, if one or more of the grounds stated therein are attracted. A judgment on admissions can be passed in accordance with Order XII Rule 6 of the Code.
23.So, as the scheme of the Code shows, that trial is procedure, which must be followed as a ritual, invariably in all the cases, as a rule of thumb, is not the correct interpretation. In appropriate cases, if the requisite conditions are met with, a litigation may be shown the exit door in accordance with the law.
24.The concept of summary judgment as enshrined in the Order XIIIA of the Code and applicable only in respect of a commercial suit is of recent origin with the enactment of the Commercial Courts Act, 2015. It is a unique provision, so far having no sibling in any other statute.
25.On a cursory examination, it may appear that the summary judgment is akin to 'judgment on admission' under Order XII Rule 6 of the Code or a 'default judgment' under Order CS (Comm.) No. 2723/2019 Page 10 of 22 VIII Rule 1 of the Code or in some way similar to the 'summary procedure' under Order XXXVII of the Code. A careful scrutiny of the provision reveals that it is in fact quite different from these provisions. It is an independent provision, self-contained in itself having characteristic distinctions vis-à-vis the other provisions cited above.
26.In the judgment of Ambalal Sarabhai Enterprises Vs. K. S. Infraspace LLP reported as 2019 SCC OnLine SC 1311, the Hon'ble Supreme Court of India has been pleased to hold that "keeping in view the object and purpose of the establishment of the Commercial Courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country."
27.The provision of Summary Judgment gives a right of any party to a commercial dispute instituted under the Commercial Courts Act, 2015 to get a claim decided in its favour without going through the process of recording the oral evidence. It is an effective tool for deciding cases where it can be clearly demonstrated that a trial is unnecessary. In various quarters this provision has been labelled as a 'blunt instrument' that can abruptly terminate litigation. However, as the case law jurisprudence that has developed on this subject has recognized it is a tool that allows Courts to weed out cases that do not need a trial to CS (Comm.) No. 2723/2019 Page 11 of 22 be resolved, and the precious time of the Courts can be utilized fruitfully by focusing on the areas of actual dispute, which require particular attention. The Superior Courts, in a catena of case law, have strictly interpreted this provision so that the rule does not deprive the parties of their innings in the Court.
28.All commercial disputes are covered under the provision of Order XIIIA with only one exception i.e. the cases originally instituted under the summary procedure under Order XXXVII of the Code, in which case this provision cannot be invoked.
29.The right to get a summary judgment can be claimed by any of the parties to a commercial dispute and this window is not open all the times. It is open from any stage after the service of summons of the suit upon the defendant till the stage of the framing of the issues. Once the issues have been framed, the window gets closed for good. It has been so expounded in the judgment of Bright Enterprises Private Limited & Anr. vs. M J Bizcraft LLP & Anr 2017 SCC OnLine Del 6394.
30.There are four ways in which the claims can be decided by way of a summary judgment. Firstly, the entire claim of either of the parties; secondly, a part of claim of either of the parties; thirdly a counter-claim and lastly any particular question on which the claim, whether in whole or in part, depends can be decided under this provision.
31.A Court may give a summary judgment against any party CS (Comm.) No. 2723/2019 Page 12 of 22 to a commercial dispute on two grounds. These two grounds have been joined by the word 'and' connoting that both the grounds must exist together and simultaneously. The first ground is that the Court considers that the plaintiff has no real prospect of succeeding on the claim or that the defendant has no real prospect of successfully defending the claim. The second ground is that there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
32.The Hon'ble High Court of Delhi in Su-Kam Power Systems Ltd. vs. Kunwer Sachdev & Anr. reported as 2019 SCC OnLine Del 10764 has been pleased to hold that this provision empowers the Court to grant a Summary Judgment against the defendant where the Court considers that the defendant has no real prospects of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
33.The judgment of Su-Kam (supra) expounded the concept of the expression 'real' and held that is means 'realistic' as opposed to 'fanciful' prospects of success. Consequently, Order XIII-A CPC would be attracted if the Court, while hearing such an application, can make the necessary finding of fact, apply the law to the facts and the same is a proportionate, more expeditious and less expensive means of achieving a fair and just result. In another case, Ambawatta Buildwell Pvt. Ltd. vs. Imperia Structure Ltd. & Ors. 2019 SCC OnLine Del 8657, Hon'ble High Court CS (Comm.) No. 2723/2019 Page 13 of 22 of Delhi has held that it has to be seen whether the defence pleaded, has any chance of succeeding in law and if the answer is in the negative, a decree on admissions or under Order XV of CPC or a Summary Judgment under Order XIII-A of the Code has to follow. Other significant judgments, expounding the various facets of the scope and ambit of a summary judgment, pronounced by the Hon'ble High Court of Delhi are Rockwool International and Anr. vs. Thermocare Rockwool (India) Pvt. Ltd. 2018 SCC OnLine Delhi 11911; R. Impex vs. Punj Lloyd Ltd. 2019 SCC OnLine Delhi 6667; Mallcom (India) Limited and Anr. vs Rakesh Kumar & Ors. 2019 SCC OnLine Delhi 7646 and Jindal Saw Limited vs. Aperam Stainless Services & Solutions Precision SAS & Ors. 2019 SCC OnLine Delhi 9163; Venezia Mobili (India) Pvt. Ltd. vs. Ramprastha Promotors and Developers Pvt. Ltd., a judgment passed by Hon'ble High Court of Delhi on 26.03.2019 in CS (Comm.) 760/2017 and the law laid down in all these judgments have been duly considered by this Court.
34.Thus, while undertaking the task of considering a case or a claim for summary judgment, is indeed a task which must weigh and evaluate a host of factors. An application for summary judgment has three aspects viz. the factual submissions; the legal submissions; and the documentary evidence.
35.While dealing with an application for summary judgment the Courts must consider certain factors. The following CS (Comm.) No. 2723/2019 Page 14 of 22 factors have been culled out from various judgments--
(i). Whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success?
Swain v. Hillman MANU/UKWA/0649/1999:
[2001] 1 All ER 91. A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable. ED & F Man Liquid Products v. Patel [2003] EWCA Civ 472 at [8].
(ii). Court must not take at face value and without analysis everything that a claimant says in his submissions before the Court. ED & F Man Liquid Products v. Patel (supra).
(iii). Court must take into account not only the evidence actually placed before it, but also the evidence that can reasonably be expected to be available at trial. Royal Brompton Hospital NHS Trust v. Hammond (No 5) [2001] EWCA Civ 550
(iv). The Court must be satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
(v). It is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction. ICI Chemicals & Polymers Ltd. v. TTE Training CS (Comm.) No. 2723/2019 Page 15 of 22 Ltd. [2007] EWCA Civ. 725
(vi). Summary judgment ought to be refused if there were compelling reasons to conduct a trial.
(vii). Court has to strike a balance between a fair trial and expedition.
36.In this context the case of the plaintiff has to be considered for grant of a summary judgment. In fact, it is an exercise into confidence. If considering the material on record, the Court is confident that a judgment can be passed without repose to a trial and that by all permutations no evidence can be conceived, which can shake that confidence, it would be appropriate to pass a summary judgment. In this case, the jural relationship between the parties is not denied. It has been submitted by defendants in para 3 of the reply on merits that it is not disputed that the defendants have been rendered services by the plaintiff. However, the defendants have qualified the same that it was "for very limited period and very limited extent". What does the defendants mean by "very limited period and very limited extent" has not been explained. The duration of the period and the duration of the extent have not been stated.
37.A meaningful reading of the written statement discloses that the defendants have not denied the juristic relationship between the parties. Throughout the written statement, the defendants have kept the facts couched in a vague CS (Comm.) No. 2723/2019 Page 16 of 22 language. They have tried to harp upon the non placing of purchase orders/pictures/image of work done by the plaintiff on record.
38.The defendants have denied in their affidavit dated 23.02.2021 vis-a-vis the admission/denial of documents, the factum of e-mail dated 31.07.2018 in the following words "denied because no work was completed by the plaintiff". This is not a denial in the eyes of the law. Thus, the sending of the email dated 31.07.2018 is deemed to be admitted. The contents of the same reads as under:-
"As discussed, I am enclosing you current ledger. As you know situation, we are going through a very bad phase in business. Please check that we have done a total business of about 90 lacs since beginning and only some 7 lac rupee is outstanding unpaid. If the business condition was normal, we would have paid this long time ago, but unfortunately due to circumstances we are not able to pay it. I am extremely sorry for this delay which is all unintentional. That was the reason I offered you the stocks if you could take & adjust this balance".
39.Many other documents have been denied in the similar way. The reading of various emails exchanged between the parties clearly show that the plaintiff and defendant were continuously exchanging the mails. This shows that the CS (Comm.) No. 2723/2019 Page 17 of 22 plaintiff has performed various jobs for the defendants and at no point of time the defendants have made any demur about non provision of services on any deficiency of services or any incomplete work by the plaintiff.
40.The defendants have admitted the legal notice dated 28.12.2018 by as sent by the plaintiff and also its reply dated 14.02.2019. In reply to para nos. 2 and 3 of the notice, the defendants have written that the said contents are partially denied and that the availment of the services by the defendants from the plaintiff is not in dispute. It has further been submitted in the reply dated 14.02.2019 that the plaintiff is put to the strict proof of the services rendered to defendants. Same is the stand of defendants regarding the claim of Rs. 8,40,457/- (Rupees Eight Lakh Forty Thousand Four Hundred Fifty Seven only) about which the defendants have again put the plaintiff to the strict proof.
41.In para 5 of the notice dated 28.12.2018, the plaintiff has referred to repeated demands of Rs. 8,40,457/- (Rupees Eight Lakh Forty Thousand Four Hundred Fifty Seven only) and in reply to the same the defendants have stated in the corresponding para of their reply that there is no discrepancy in the account statement. Further the defendants have stated "however all outstanding has been cleared already by client". The statement by itself clinches the issue. If the defendants' stand is that all the liabilities have been cleared by them, it was incumbent upon them to show the relevant documents or the accounting documents CS (Comm.) No. 2723/2019 Page 18 of 22 to bring home this fact. The averment is silent as to the amount, date or mode of payment. No such averment regarding payment with specific particulars has been made in the written statement by the defendants.
42.The written Statement as framed by the defendants, read in entirety and in a meaningful way goes to show that the defendants have been beating about the bush. The averments are vague and devoid of material particulars. Further, at many times, the use of phrase "matter of record" indicates that the defendants admit the stand/documents filed by the plaintiff. The affidavit of admission/denial as filed on record does not in any way show that the defendants have done that exercise in a genuine way. Rather, it goes to show that there is a deliberate attempt to mislead the Court by resorting to vague terminology. The defendants have not filed any documents on record to substantiate their case. The Commercial Courts Act, 2015, calls for a Statement of Truth from the parties and in such statement filed by the defendants, it has been stated in para 5 that the defendants have produced all the relevant documents and has no other document in their power, possession, control or custody. Therefore, by the defendants' own statement, there is no document which they can produce in evidence to prove on record that nothing is due to the plaintiff from the defendants.
43.Considering the pleadings and documents on record and appreciating them, there is nothing to suggest that if the CS (Comm.) No. 2723/2019 Page 19 of 22 case is put to trial, any evidence may emerge, which may turn the tables in favour of the defendants. Any such evidence emerging in favour of defendants out of the blue can at best be a wishful thinking. There is nothing to support the plea of the defendants as taken in para 5 of the reply dated 14.02.2019 (in response to plaintiff's notice dated 28.12.2018) that the defendants have cleared the entire outstanding of the plaintiff. Even this plea is couched in a vague term as the amount of outstanding and the date of payment has not been stated.
44.The entire reading of the case shows that in the written statement, in reply notice dated 14.02.2019 and affidavit of admission/denial of documents, the sole purpose of the defendants is to give vague replies in order to conceal the truth.
45.At its best, the case of the defendants is of vague denial and pleas unsupported by any credible documentary evidence.
46.By necessary implications, in view of the vague pleadings and vague statement of admission/denial of documents, the various emails, more particularly, the email dated 31.07.2018 sent by the defendant no. 2 to the plaintiff and the contents of notice dated 28.12.2018 (plaintiff's notice) and reply of defendants dated 14.02.2019 read in juxtaposition clearly indicate that the claim of the plaintiff in the sum of Rs. 8,40,457/- (Rupees Eight Lakh Forty Thousand Four Hundred Fifty Seven only) is made out and CS (Comm.) No. 2723/2019 Page 20 of 22 that the defence of the defendants is only a moonshine.
Order
47.The claim of the plaintiff is against the defendant no. 1, which is a company and also against defendant nos. 2 and 3, who are the Directors of defendant no. 1. There is nothing to suggest that these defendants have owned any liability of defendant no. 1, except acting in a representative capacity as a human agency for a body corporate. Therefore, I accept the plea of the defendants that the personal liability vis-a-vis the defendant nos. 2 and 3 is not attracted.
48.As regards the interest component, the plaintiff has claimed the interest prior to institution of suit @ 18% per annum and capitalize the same to the extent of Rs. 3,15,413/- (Rupees Three Lakh Fifteen Thousand Four Hundred Thirteen only). In my view, the rate of 12% per annum would be appropriate in the facts and circumstances of the case. Therefore, I consider the interest for pre- institution period to be Rs. 2,10,275/- (Rupees Two Lakh Ten Thousand Two Hundred Seventy Five only) and therefore, the suit of the plaintiff is decreed for a sum of Rs. 10,50,732/- (Rupees Ten Lakh Fifty Thousand Seven Hundred Thirty Two only) with pendenlite and future interest @ 12% per annum from the date of institution i.e. 19.11.2019 till final realization in favour of plaintiff against defendant no. 1.
49.It is made clear that the interest till the date of decree i.e. CS (Comm.) No. 2723/2019 Page 21 of 22 03.01.2022 shall stand capitalized in the decreetal amount and the Court Fee shall be accordingly payable by the plaintiff.
50.Decree sheet be prepared after the deficient Court Fee has been paid by the plaintiff along with a statement of computation of court fee.
Copy of the Judgment
51.In compliance of the provisions of the Order XX Rule 1 of the Code (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
52.This judgment be uploaded on the website of Delhi District Courts forthwith.
53.File be consigned to Record Room.
Digitally signed by MANMOHAN MANMOHAN Announced through video-conferencing SHARMA SHARMA Date: 2022.01.03 15:20:18 +0530 on 03.01.2022 (Man Mohan Sharma) District Judge (Commercial Court)-06
Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 2723/2019 Page 22 of 22