Delhi District Court
M/S. Chip School For Professional ... vs Ryan International School on 30 November, 2012
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL. DISTRICT
JUDGE CENTRAL-09: TIS HAZARI COURTS, DELHI
CS N0. 59/11.
UID No. 02401C0101012003.
M/s. Chip School for Professional Education
Through its Partner
Having office at
A-17, Kabir Nagar (100' Road)
Delhi-110 094.
........... Plaintiff
Versus
1. Ryan International School
Through its Manager
Sector 21-B, Faridabad
Haryana.
2. Director
Ryan International Schools
Sector-C, Pocket-8
Vasant Kunj
New Delhi-110 037.
......... Defendants
Date of institution of suit : 01.03.2002
Date of reserving for judgment : 30.11.2012
Date of judgment : 30.11.2012
JUDGMENT
1. This is a suit for recovery of Rs. 19,33,131/- filed by the plaintiff.
2. Briefly stated facts of the case are :
(a) Plaintiff is a partnership firm duly registered with Registrar of Firms, Govt. of NCT of Delhi. Mr. Arun Sharma and Mr. Sandeep Malhotra are the partners of the plaintiff and their CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 1 names are maintained as partners in the records of Registrar of Firms and both the partners are well conversant with the facts and circumstances of the case and are competent to sign, verify and file the present plaint. The plaintiff is associated with the field of computer education since 1991 and has grown manifolds with computer training at school and institute level.
(b) The plaintiff had introduced in the schools managed and run by defendant no. 2 in August, 1998 and in a very short time frame, the plaintiff had taken the control of the situation of the schools managed and run by defendant no. 2 in and around Delhi.
(c) The plaintiff was given an opportunity to expand its network of services by defendant no. 2 only after getting satisfied by the quality of service which the plaintiff rendered to defendant no. 1 and other schools.
(d) The plaintiff and defendant entered into a written contract in Delhi whereby plaintiff had agreed to coach the students of defendant no. 1 in the discipline of computer science. The contract was executed on 01/08/1998 between the parties which was valid for five years.
(e) The services were rendered by the plaintiff to defendant no. 1 regularly and the bills were raised regularly. Defendant no. 1 charged fee from its students regularly on monthly basis but did not make the payment to the plaintiff. Various requests were made on behalf of plaintiff for release of outstanding arrears but the payments were not released.
(f) Defendant no. 2 called a meeting at its Rohini School in Delhi and assured to release the outstanding arrears within two days but outstanding dues were not paid.
CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 2
(g) Ultimately, on 03/10/2001, the plaintiff issued notice to defendants calling upon them to pay the outstanding arrears of principle consideration for the services rendered to defendant no.
1. The notice was replied by defendant no. 2 by reply dated 20/10/2001 which was absolutely false and had no substance.
(h) Reply dated 20/10/2001 was rebutted by the plaintiff by letter dated 12/11/2001 along with complete statement of account. Despite repeated demands, the payment of outstanding arrears have not been released and the intentions of defendants have become dishonest. Thus, the defendants are liable to make payment of the suit amount along with pendentelite and future interest in terms of the contract.
3. Written statement on behalf of the defendants filed wherein it is admitted that the plaintiff entered into an agreement with the defendants for providing computer education at various schools of the defendant but the services provided by the plaintiff fell far below the standard that were expected by the defendants. The plaintiff did not adhere to the terms and conditions agreed upon. The defendants have categorically reminded the defendants time and again to adhere to the terms and conditions agreed upon. Students as well as their parents complained to the defendants about the failure of the plaintiff's regarding quality and quantity of the services. It is objected that the defendants have no privity of contract with the partnership concerned which has filed the present suit. It is further stated that none of the invoice/bills were counter signed by the defendants and it seems that such bills have been prepared by the plaintiff for using in the present suit. It is further stated that defendants have already revoked the contract between the parties. It is further stated that the plaintiff supplied outdated and obsolete books and not provided upgraded CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 3 material of study with the new fangled ideas. Reply of the notice by the defendants is admitted. Rest of the contents of the plaint are denied.
4. Plaintiff filed replication to the written statement of the defendants wherein averments made in the written statement are denied. It is denied that the defendants have no privity of contract between the partnership concern who has filed this suit. Averments made in the plaint are reiterated and affirmed.
5. My ld. Predecessor by order dated 27.07.2005 framed following issues :
"i) Whether there is privity of contract between the plaintiff and the defendant? OPP.
ii) Whether the plaintiff is entitled to the suit amount?OPP.
iii) Whether the plaintiff is entitled for interest. If so at what rate and on which amount and from which date? OPP.
iv) Relief."
6. To prove his case, the plaintiff has examined Sh. Arun Sharma as PW1 who tendered his evidence by way of affidavit Ex. PW1/A. He further relied upon documents Ex. PW1/1 to Ex. PW1/52 which have been mentioned in Ex. PW1/A. PW1 was cross-examined by ld counsel for the defendant and thereafter by separate statement, ld counsel for the plaintiff closed PE. In defence, defendant examined Sh. Francis Thomas as DW1 who tendered his evidence by way of affidavit Ex. DW1/A. This witness was cross-examined at length by ld counsel for the plaintiff and thereafter ld counsel for the defendants closed DE.
7. I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard Sh. P. K. Sharma, ld counsel for the plaintiff and Sh. Ashok Bhasin, ld senior counsel for the defendant. My issuewise findings are:
CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 4 8. Issue No. 1 Whether there is privity of contract between the plaintiff and the defendant? OPP.
Onus to prove issue no. 1 is upon the plaintiff. PW1 proved certificate of registration of the plaintiff i.e. Form 'A' as Ex. PW1/1 and Form 'B' as Ex. PW1/2. Plaintiff further proved memorandum of agreement between the plaintiff and the defendant as Ex. PW1/3. Ex. PW1/3 is perused. This is the agreement dated 01/08/98 entered into between the parties. It bears signature of both the parties. During cross-examination, it is stated by PW1 that there are two partners of the plaintiff and name of partners are Arun Sharma and Captain Sandeep Malhotra. It is further stated that the firm was registered in the year 2001. A suggestion was given that Captain Sandeep Malhotra was not a partner of the plaintiff firm at the time of execution of the agreement but was only proprietor of the plaintiff and the suggestion was denied. A further suggestion was given that there was no privity of contract between the plaintiff and the defendants and the suggestion was denied. During cross-examination, DW1 stated that it was not represented to him by the plaintiff that the plaintiff was partnership firm registered with Registrar of Firms. He has further stated that he has deposed so in para 3 of his affidavit on the basis of record of his school. However, this court observes that no such record has been brought by the defendant before this court. He has further stated that he has stated so on the basis of registration certificate produced by the plaintiff to the school and he has further stated that he was not confirmed about the documents. No registration certificate as produced by the plaintiff to the defendant, has been brought on the record by the defendant. Moreover, during cross-examination DW1 has further stated that he has no personal knowledge about the CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 5 preparation and execution of the agreement. DW1 has further stated that he started looking after transaction only after 2002 and the documents executed between the plaintiff and defendants were not executed in his presence. Thus, whatever stated by DW1 in this court on the basis of the record maintained by the defendant but no record has been brought by the defendant to prove that plaintiff was not a partnership firm but a proprietorship concern. Thus, the plaintiff is successful to discharge the onus to prove issue no. 1 and accordingly this issue is answered in favour of the plaintiff.9. Issue No. 2
Whether the plaintiff is entitled to the suit amount? OPP.
Onus to prove issue no. 2 is upon the plaintiff. During cross- examination PW1 stated that the strength of the students was being furnished by the schools and bills were being raised accordingly on the basis of the strength of the students. He has further stated that in summer vacations also the teaching continued to the staff of the school and not to the students and the entire staff has to work there as usual. He was not able to state that whether it was mentioned as a term of the agreement for providing the services during summer vacations to staff as stated by him in cross-examination. The agreement is perused. In agreement, clause 8 (d) states :
"8. (d) That the above conditions shall hold good also at the time of vacation or any other leave period."
10. A suggestion was given that bills of summer vacations period have been raised without any basis and contrary to the documents and the suggestion was denied. Further suggestions were given which were also denied such as that services provided by the plaintiff was sub-
CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 6 standard or the plaintiff did not upgrade the study material as per requirements or bills claimed in the suit were never received or none of the bills bear the counter sign by any of the school authority or no amount is outstanding and payable by defendant in respect of the suit. DW1 in Ex. DW1/A admitted that the agreement was entered with the plaintiff for providing computer education and defendant at various schools as per the condition mentioned therein. Thus, business/ commercial relationship between the plaintiff and defendant is admitted. During cross-examination, it is admitted case of DW1 that he started looking after the transaction only after 2002. Plaint is again perused. The cause of action stated in the plaint arose on 01/08/1998 and up to 12/11/2001 as stated in the plaint. Thus, DW1 had only joined the defendant after the period of cause of action as stated in the plaint. DW1 has also admitted in cross-examination that he has no personal knowledge about the preparation and execution of agreement. He has further stated that he came to know about the contents of agreement immediately after his joining in the year 2002 only on the basis of records available with the defendants. He has further admitted that during the period of agreement, all the students of the respective schools used to be given computer education only by the plaintiff through its own equipments and faculties. He has further admitted that the defendant used to charge the computer fee from the students studying in the school during the period of agreement. He has further admitted that the faculties of the plaintiff were paid by the plaintiff. He did not remember whether the computer fee which was charged by the defendant from the students was exactly the same what the defendant had agreed with the plaintiff or it was more. He refused to bring the relevant record of collections. A further question was put by ld counsel for the plaintiff to DW1 that whether the defendant had preserved the CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 7 record when the matter was in litigation and it was answered that no because it is 10 years old. Here, the court observes about the conduct of the defendant to the effect that the suit was filed in the year 2002 and the defendants filed written statement in the year 2005 then definitely the defendants could preserve the record to prove their case before this court but the defendant have not brought any such record before this court. He has further stated that DW1 could search for the same but no such record has been brought. He has further stated that the defendants have not produced any complaint by the student or parents made against the plaintiff. Section 106 of The Indian Evidence Act states :
"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Illustration (g) to Section 114 of the said Act further explains :
"114. illustration (g)- That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
A further question put that since the rate agreed was Rs. 75/- per student that is why the defendant had been making payment @ Rs. 75/- per student and it was answered by DW1 that the defendant had not paid @ 75/- per student at any point of time. A further question was put to DW1 whether the defendant at any point of time pointed out any defect or irregularity in the services rendered by the plaintiff by way of any letter, it is answered that the defendants have sent a letter dated 11/08/2001 and subsequently the reason for termination was mentioned in the termination letter dated 14/08/2001. Affidavit Ex. PW1/A is perused. In para 17, it is stated by PW1 that the contract was terminated by letter dated 14/08/2001 only for five schools and not for all the schools and the termination was illegal, immoral, unethical CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 8 and arbitrary. During cross-examination of PW1, counsel for the defendant did not challenge this evidence or make any suggestion to prove the said contention. Therefore, in absence of any challenge by the defendant during cross-examination of PW1, it is deemed to be admitted by the defendants such evidence of PW1 in view of the law laid down by In para 3 of Rajinder Pershad (dead) by LRs. Vs. Smt. Darshana Devi' 93 (2001) DLT 1 (SC) held that:
'.........There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U. P. v. Nahar Singh (dead) and Ors. III (1998) (3) SLT 510=1998(3) SCC 561, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed:
"The oft-quoted observation of Lord IIcrschell, L.C. In Brownev. Dunn clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 9 play and fair dealing with witnesses."
In another case titled as 'Srichand and Shivan Das Vs. The State 28 (1985) DELHI LAW TIMES 360 it has been held in para 6:
"The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true."
11. However, the letter dated 14/08/2001 has been exhibited by the plaintiff as Ex. PW1/37. The letter is perused. This letter was written by the defendant to the plaintiff wherein it was informed that the plaintiff did not upgrade the technology of computer in accordance with the revised syllabus and contract was terminated. However, no any such letter has been referred in this document wherein the defendant had ever asked the plaintiff earlier, to upgrade the technology of computer in accordance with the revised syllabus or at any time, it was brought in knowledge of the plaintiff that syllabus was revised and technology of the computer was required to be upgraded. DW1 further admitted that in the letter, no grievance about the rate of billing was mentioned. He has further admitted that the defendants did not write any letter to the plaintiff about the bills having been raised wrongly. He also did not remember when and which officer of the defendants have raised the oral objections. He personally did not raise any such objection to the plaintiff. He has further admitted that the defendant did not send any counter statement of account of the transaction taken place with the plaintiff. The defendants used to maintain all the records regarding the transactions taken place with the plaintiff. He has admitted that the defendants did not produce any record. He has voluntarily stated that the defendants could not produce the record as the record were lost in Mumbai and the complaint was lodged with the Mumbai Police authority. No such complaint or copy thereof has been CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 10 brought on the record. He has admitted that the plaintiff used to pay salary to its faculties during the period of contract. He has further admitted that the defendants were charging the computer fee from its students only because the plaintiff was providing the computer education to the students. When a question was put by the plaintiff to DW1 that whether any letter was written raising objections regarding the obsolete computers or very old model or never updating the computer software or over charging than the agreed rates then DW1 stated that a letter dated 11/08/2001 was given in this regard but the said letter is not proved by the defendant. A further question put by the plaintiff to DW1 that whether any letter was written to the plaintiff stating therein that the plaintiff was submitting inflated bills to the defendant and he has stated no. He has further admitted that by Ex. PW1/37, the contract for five schools were terminated but not for three schools. He has further admitted that defendant never sent any statement of account to the plaintiff for any purpose.
12. During arguments, ld senior counsel Sh. Ashok Bhasin raised a contention that it was the plaintiff to bring before this court the relevant record regarding number of students in each class to substantiate the claim of the defendant. He has further raised the contention that the statement of account as brought by the plaintiff before this court is not proved in accordance with the law. On the other hand, ld counsel for the plaintiff submitted that it was the defendants who were maintaining the records regarding number of students in each class at the relevant time and also other necessary records to controvert or dispute the claim of the plaintiff. Here, this court can take judicial notice of the fact that in every school it is mandatory that a register for attendance of students has to be maintained. Moreover, number of students along with name and other description were definitely being in the knowledge CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 11 of the defendants as the defendants were compulsorily to maintain the record of students in the school. Moreover, the defendants were also charging the fees from the students or their parents and the court can also take the judicial notice of the fact that the receipts were also being issued by the defendant to the parents of the students. The defendants must have counterfoil of the receipt books, attendance register and other relevant records and to counter the claim of the plaintiff, defendants could very well file that record. But the defendants did not choose to bring said record before this court. Therefore, this contention raised on behalf of the defendant is outrightly dismissed. The another contention raised by the ld senior counsel for the defendants that statement of account has not been proved by the plaintiff in accordance with the provision of Section 34 of Indian Evidence Act. To counter this objection, it is submitted by ld counsel for the plaintiff that plaintiff not only filed statement of account before this court but also in Ex. PW1/A at relevant portion has given complete detail of the payment/bills raised and the amount/cheuqes received by the plaintiff. Further, there is no cross-examination on behalf of the defendants for those paras of Ex. PW1/A. This court is of the considered opinion that applying the ratio of law laid down in Rajinder Pershad's case (supra) when there is no challenge of the evidence by the defendant during cross-examination of the witness who could explain about the said piece of evidence then the said piece of evidence is deemed to be admitted by the party who did not opt for cross-examination during evidence of the said witness. In such circumstances, affidavit of PW1 regarding the said portions remains unchallenged and now the defendants are not allowed to raise objections for the said piece of the evidence. Ld senior counsel for the defendant during arguments relied upon Ishwar Dass Jain (Dead) CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 12 Thr. Lrs. Vs. Sohan Lal (Dead) By Lrs. MANU/SC/0747/1999, Sait Tarajee Khimchand and Ors. Vs. Yelamarti Satyam alias Satteyya and Ors. MANU/SC/0022/1971, Chandradhar Goswami and Ors.
Vs.The Gauhati Bank Ltd. MANU/SC/0031/1966, Sudhir
Engineering Company Vs. Nitco Roadways Ltd.
MANU/DE/0414/1995 and S. Babu Vs. M/s. J. K. Industries Ltd., Madurai, represented by its Assistant Area Manager, No. 82, Aruppukkottai Road, Madurai, (Now at) No. 175, Kumarajar Salai Madurai MANU/TN/2187/2008. But this court is of the considered opinion that these judgments are not applicable to the facts of this case. This court is also of the considered opinion that if the defendants have to raise any objection towards the amount or the bills or regarding inflated bills then the best course available to the defendants was to submit before this court either the amount payable by the defendant to the plaintiff or to submit statement of account maintained by the defendants during the course of business. But instead of making any such submission or to bring any such record before this court, the defendants have made evasive denial in written statement as well as the evidence and evasive denial as per Order 8 Rule 4 of CPC are not sufficient and cannot be accepted by this court. Moreover, this court further observes that DW1 himself stated that he joined defendant no. 1 in the year 2002 and he has no personal knowledge about the preparation and execution of the agreement. He also is not aware about the material facts of this case. He has further stated that he has deposed as per the records of the case. This court is of the considered opinion why not a person/witness who signed upon Ex. PW1/3 or any person who is having knowledge on behalf of the defendants about the facts of the case, came in the witness box. Due to non appearance of any such person, the court has to draw an adverse inference against CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 13 the witness especially due to the fact that defendant did not submit or produce any record to dispute the claim of the plaintiff.
13. In view of the observations made herein above, it is admitted by DW1 in cross-examination of all material contents of the suit of the plaintiff. He has only disputed about the inflated bills or study material or non upgrading of system but defendant has not brought any such document whereby defendant had ever informed to the plaintiff about any such grievance. Rather, it is stated by DW1 that the documents were lost in Mumbai. First of all, it is not stated by DW1 for what purpose those documents were taken to Mumbai and if those documents were lost and complaint was lodged with Mumbai Police authority then why that complaint has not been produced before this court or proved in accordance with the law. The defendants were best persons to bring the said document on the record but they didn't bring on the record said document then the court has to draw adverse inference against the defendant. In such circumstances, the defence raised by the defendant during its evidence does not inspire confidence in the mind of this court and the plaintiff has successfully proved its case. Thus, the plaintiff is entitled for the relief to recover the amount for the services rendered to defendant no. 1 as per the contract. In para 15 of the plaint, the plaintiff has claimed principle consideration as Rs. 14,89,097/-. Thus, the plaintiff is entitled this amount from the defendant and the suit has to be decreed for this principle amount in favour of the plaintiff and against the defendant.
14. Issue No. 3Whether the plaintiff is entitled for interest. If so at what rate and on which amount and from which date? OPP.
Onus to prove this issue was upon the plaintiff. In para 12 of Ex.
CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 14 PW1/A, it is stated by PW1 that in terms of clause 8(c) of Ex. PW1/3, the plaintiff is entitled for interest @ 18% p.a. Thus, there is interest to be paid on the late payment as agreed by the parties in Ex. PW1/3. However, in my considered opinion both the parties were engaged in the education field, giving education to the students but the court cannot lost its sight to the fact that the defendant was charging the fees from the students for the services rendered by the plaintiff. In such circumstances and in my considered opinion, interest @ 16% p.a. from the date of institution of the suit till realization shall serve the purpose of justice.
15. Issue No. 4Relief.
In view of the observations made herein above, the suit of the plaintiff is decreed for a sum of Rs. 14,89,097/- along with interest @ 16% p.a. from the date of institution of the suit till realization along with proportionate costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 30.11.2012. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 15 CS No. 59/11 30/11/2012 (at 4:52 pm) Present : Sh. Mithlesh Kumar, counsel for the plaintiff.
None for the defendant.
Vide separate judgment announced in the open court today, the suit of the plaintiff is decreed for a sum of Rs. 14,89,097/- along with interest @ 16% p.a. from the date of institution of the suit till realization along with proportionate costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra) Additional District Judge-09 Central District, Tis Hazari Courts Delhi/30.11.2012 CS No. 59/11.
M/s. Chip School for Professional Education Vs. Ryan International School & Anr. 16