Delhi District Court
M/S Oneplace Web Solution Pvt. Ltd vs M/S Shahnaz Ayurvedics And Anr on 22 April, 2024
IN THE COURT OF MS. ANURADHA SHUKLA
BHARDWAJ: DISTRICT JUDGE (COMMERCIAL
COURT)-02, SOUTH, SAKET, DELHI
CS (Comm.) No.160/21
1.M/S. ONEPLACE WEB SOLUTION PVT. LTD.
Through its Director
Ranjeet Kumar Ranjan
Office at: 103, 2nd floor, Lane No.2,
Western Marg, Saidulajab,
Saket, New Delhi-110030.
Branch Office at:
T-2, 905, White Orchid,
Gaur City-II, Sector-16-C,
Noida Extension,
Greater Noida West-201306.
....Plaintiff
Versus
1.M/S. SHAHNAZ AYURVEDICS AND ANR.
Through its competent representative
Regd. office:
901-903, 9th Floor,
International Trade Tower,
Nehru Place, New Delhi-110019.
2.Shahnaz Husain, CMD,
M/s. Shahnaz Ayurvedics
Regd. Office:
901-903, 9th Floor,
International Trade Tower,
Nehru Place, New Delhi-110019.
....Defendants
CS (COMM) 160/21 1 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
Date of filing of the suit : 08.04.2021
Date of reserving judgment : 28.03.2024
Date of judgment : 22.04.2024
JUDGMENT
1. The plaintiff had filed summary suit for recovery of Rs.12,16,895/- alongwith pendent-lite interest and cost against defendants, which was treated as ordinary suit at the statement of counsel for plaintiff himself.
2. As per suit, plaintiff is an advertising service provider company providing services to its customers through electronic media. Plaintiff received the job of advertising service from the defendant no.1 from time to time on credit basis. The defendants are having credit account in the account book of plaintiff company operated in due course of business. It is stated that plaintiff raised bills of each and every work performed by it and defendants acknowledged the receipt of such bills, however, despite acknowledging the liability of balance amount of Rs.12,16,895/-, defendants have failed to make payment of the said amount. It is stated that defendants are liable to pay principal balance amount of Rs.12,16,895/- as per invoices detailed in para 6 of the plaint. Plaintiff sent a CS (COMM) 160/21 2 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
legal demand notice dt. 01.08.2020 to defendants and a settlement deed was prepared by defendants on mutually agreed point and same was sent to plaintiff on e-mail but on one pretext or other defendants did not make the payment. Thereafter, a legal notice dt. 27.08.2020 was sent by plaintiff to defendants no.1 & 2 through speed post. It is stated that plaintiff approached DLSA, South District, Saket, New Delhi for pre-litigation mediation but mediation failed due to non-cooperation of defendants. Hence, the present suit was filed by plaintiff.
3. The defendants put in appearance upon service of summons. Matter was referred to mediation center by court, however, it could not be settled. Written statement was filed by defendants, wherein defendants have taken preliminary objections that plaint ought to be rejected as the same suffers from material defects and infirmities; that suit lacks a cause of action sustainable in law; that plaintiff has not approached the court with clean hands and has made blatantly false allegations and suppressed material facts; that plaintiff has not filed certificate u/s. 65-B of Indian Evidence Act; that dispute arose between the parties regarding discrepancies in the invoices for the alleged services provided during the period from September 2019 to June 2020; that plaintiff's director Mr. Ranjit Ranjan had dishonest intention right from the beginning.
CS (COMM) 160/21 3 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
4. The stand taken by defendants in their written statement is that dispute between the parties arose regarding the discrepancies in the invoices for the services provided during the period from September, 2019 to June, 2020 due to plaintiff's inability to provide supporting documents in respect of amounts charged by them towards Pop-Up Traffic, Influencers and certain other variations for the said service period. It is stated that despite repeated requests, plaintiff failed to produce valid documents to support their claim of amount. It is stated that plaintiff created Super Facebook Ad Admin Business Manager Account AC/ID- 108347206610573 in their name as Admin, instead of defendant no.1 Concern's name. It is stated that as per understanding & verbal agreement between the parties, all Accounts (including Super Facebook, Ad Admin Business Manager Account AC/ID-108347206610573) are Sole property of defendants, who had paid for all Admin Accounts. However, despite repeated requests plaintiff did not hand over Super Ad Accounts and Shahnaz Ayurvedics owned Super Facebook Ad Admin Business Manager Account- full admin access to the defendants. It is stated that representatives of both the parties interacted with each other and decided to terminate business relationship and amicably settle the dispute. During settlement negotiations, plaintiff sent email dt 16.07.2020 at 12.06 to defendants stating that complete payment should be released on the next day and that they would share all the CS (COMM) 160/21 4 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
credentials post clearance. Vide email dt. 16.07.2020 at 7.31 pm, the defendants stated "We need all our credentials which mainly includes the credentials for the following as discussed with Jugesh Sir over yesterday's con call" 1) Google Tag Manager; 2) Google Analytics; 3) Google AdWord; 4) Facebook Fan Page and Ad Console and 5) Instagram Handle Name. Also we would like to inform you that the handover process of credentials and payments would be done simultaneously as discussed yesterday.....Nihal Batra. In response plaintiff sent email dt. 16.07.2020 at 7.36 pm stating "As discussed multiple times and I assure you all that we handover all the credentials with you without limitation (sic)." It is stated that again vide email dt. 17.07.2020 plaintiff insisted on receiving full payment and stated that only then they would hand over the credentials. It is stated that plaintiff's Director insisted on receiving the cheque payment and clearance of cheque before handing over the credentials and they concealed the fact from defendants that Facebook does not allow transfer of Admin A/C and that they would not be able to handover the Admin A/C to the defendants.
It is stated that on 21.07.2020 & 24.07.2020 defendants sent e-mails to the plaintiff highlighting the mismatch/differences in the invoices amount and the amount verified from the Google Portal of different period. It is stated that vide email dt. 11.08.2020 at 17.29 a draft of Memorandum of Settlement was sent to plaintiff. In CS (COMM) 160/21 5 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
response plaintiff sent e-mail dt. 11.08.2020 at 22.12 and after making corrections in the draft MOS, sent corrected agreed final Memorandum of Settlement to defendants. It is stated that plaintiff agreed to handover defendants' complete data, all Ad Accounts etc. and Shahnaz Ayurvedics owned Super Facebook Ad Admin Business Manager Account A/C ID-108347206610573- full Admin access, which was managed by the plaintiff's company Adsizzler Media Pvt. Ltd. to Shahnaz Ayurvedics and on receipt of same, Shahnaz Ayurvedics agreed to pay a sum of Rs.11,26,047/-i.e after deducting TDS of Rs.18,620/- and retaining the GST amount of Rs.72,228/- for the month of June' 2020, July' 2020 and August' 2020 invoices as full and final payment towards settlement of all the plaintiff's claims.
It is stated that plaintiff has not given any supporting documents for their claim. It is stated that defendants' property i.e various Ad Accounts and Shahnaz Ayurvedics owner Super Facebook Ad Admin Business Manager Account-full Admin Access, were in unlawful custody of plaintiff and plaintiff used this fact for negotiating settlement. It is stated that defendants agreed to pay the settlement amount in spite of the fact that there was deficiency in plaintiff's supporting documents/papers and deficiency in services as defendants suffered huge loss throughout the period when services were provided by the plaintiff. It was stated that the loss was reflected in CS (COMM) 160/21 6 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
defendants' books of account. It is stated that since plaintiff failed to handover Shahnaz Ayurvedics owner Super Facebook Ad Admin Business Manager Account- full admin access to defendants as agreed by him in MOS defendants had to send an e-mail dt.24.08.2020 to plaintiff, in response of which plaintiff also sent e-mail dt. 24.08.2020.
It is stated that defendants were willing to pay full and final settlement amount as agreed in MOS dt. 12.08.2020 provided that plaintiff had handed over defendants' Ad Admin Accounts, including Shahnaz Ayurvedics owner Super Facebook Ad Admin Business Manager Account-full admin access, as agreed. It is stated that later on plaintiff informed defendants that Facebook does not allow transfer of Admin Accounts. It is stated that plaintiff was well aware of the policy of Facebook since beginning, however, it had intentionally concealed this information from defendants and with dishonest intention executed memorandum of settlement.
5. On pleadings of the parties, following issues were framed on 01.08.2022:-
(1) Whether plaintiff is entitled to recovery of Rs.12,16,895/- towards providing advertising services to the defendant? OPP CS (COMM) 160/21 7 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
(2) Whether plaintiff is entitled to pendent-lite and future interest. If so at what rate? OPP (3) Whether plaintiff failed to handover the complete data i.e Facebook Ad.Account and credentials to the defendant pursuant to the agreed final MOS dated 11.08.2020 vide email dated 11.08.2020 exchanged between the parties and consequentially defendant lost all vital data of clients and confidential information and thereby breached the agreement/MOS dated 11.08.2020 and if so, what is the effect? OPD (4) Relief including costs.
6. Plaintiff in support of its case has examined Ranjeet Kumar Ranjan-a director of plaintiff company, who has deposed in terms of plaint. The witness submitted board's resolution in it favour authorising him to prosecute the suit; the copy of invoices relied upon by plaintiff which are Ex.PW1/2A to 2L in the evidence recorded before the court (Marked as Ex.2 in his affidavit). Certificate u/s.65-B of Indian Evidence Act has been attached in support of invoices and is Ex.PW1/3. The ledger account of defendants is Ex.PW1/4.
CS (COMM) 160/21 8 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
The plaintiff is relying upon e-mail dt. 10.07.2020 sent by plaintiff stating that vide the said mail plaintiff accepted the invoices. It would be relevant to reproduce the contents of email dt. 10.07.2020, ExPW1/5:-
"On Fri, Jul 10, 2020 at 12.05 pm Shivansh Paliwal> Digital@ Shahnaz.in> wrote:
Hi Ranjeet, I am sorry for the delay.
Your invoice is already accepted without any dispute so there is no issue at our end. It is already sent to finance to clear but due to covid, it takes little more time than the agreed terms. So will release (ASAP).
Thanks Shivansh Paliwal Digital
Marketing Manager Shahnaz Hussain
Group."
7. The plaintiff has further deposed that defendants had deducted the TDS and deposited the same with IT department for the invoices raised by the plaintiff. He has relied upon copy of form 26 AS (TDS) Ex.PW1/6. He has also filed certificate u/s. 65-B in support of the the TDS certificate, Ex.PW1/7. The plaintiff is relying upon legal notice Ex.PW1/8 alongwith postal receipts Ex.PW1/9 sent to the defendants and the Whatsapp report for service of legal notice as ExPW1/10. The plaintiff had gone for pre-
litigation mediation, NSR in respect of which is Ex.PW1/11.
CS (COMM) 160/21 9 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
8. In his cross-examination the witness stated that in absence of written agreement relationship between plaintiff and defendants was based on mutual understanding and trust. He voluntarily stated that he used to raise the bills as per his services and was paid by the defendants after acknowledgement and reconciliation. He says that defendants had access to verify Facebook, Google Accounts. The witness stated that all the accounts were created in the name of Shahnaz Ayurvedics, however, the ownership of all accounts was in the name of plaintiff as initially the plaintiff used to pay for accounts and thereafter, M/s.Shahnaz Ayurvedics used to reimburse and also there was no written agreement between them and Shahnaz Ayurvedics. He explained that by ownership he meant that his company had control over all accounts and was responsible for the payments and adhering to the rules and regulations of all accounts. He stated that he was well conversant with the fact that except Facebook Ad Account, which does not allow transfer of ownership of account all other account allowed transfer of ownership. He stated that the ownership of other accounts has been transferred although he was not liable to transfer in absence of written agreement. The witness has been asked questions about Adsziller, his other company and he clarified that it was also his company, however, all the bills were raised by the plaintiff only. The witness has specifically stated that he had submitted report files of Adsziller company alongwith CS (COMM) 160/21 10 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
his list of documents dt. 02.07.2022 which are annexure PI to PK and at the time of raising of invoices he had provided the supporting documents to defendants. Witness stated that he had replied e-mail dt. 21.07.2020 of Nihal Batra and although he had not filed it, however, he could produce same. The mail later was tendered in his evidence. Witness stated that he had replied email dt. 24.07.2020 of Nihal Batra on 25.07.2020. He further stated that Mr. Nihal had sent an email dt. 29.07.2020 for payment confirmation. These e-mails though not filed by plaintiff alongwith plaint, were brought on record later and are marked as Ex.D-9, Ex.PW1/12 & Ex.PW1/13. A specific question was put to the witness that the report annexures PI to PK were of Adsziller Company and thus were not connected with OnePlace Web Solution, the witness stated categorically that reports were not of Adsziller Company but of Adosiz Product of OnePlace Web Solution and on further questioning explained that this product belongs to OnePlace Web Solution and is a tool to measure matrix of the Ad campaign and they used to give this to the clients to measure their ad campaign on subscription basis. The witness explained that anything posted on Facebook or You-tube through AD Account was chargeable and the things posted without promotion were free. He further stated that he had charged for the banners as per agreed rates, which were on the lower side and had charged for services in creating the you-tube videos. It would be CS (COMM) 160/21 11 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
relevant to mention at this stage that defendants have not filed any statement of account to show that the plaintiff has claimed money for the payments which in fact were made by defendants to the Facebook directly. Witness admitted that he had repeatedly assured defendants that he would hand over all Ad Admin Accounts and credentials to the defendants without limitation and volunteered that the word limitation means that defendants will have no restriction on creating, editing and viewing the advertisements and the billings. The two mails written by plaintiff on 16.07.20 and 17.07.20 were tendered in cross- examination and marked Ex.D1 & D2. Witness further admitted that there was no liability to hand over any of the credentials but because of good faith and because it was of no use for the plaintiff, the plaintiff had agreed to hand over the credentials. Witness denied suggestion that he had given false assurance that he would hand over Facebook Ad Admin account and volunteered that he had only stated that he would hand over credentials. The witness further clarified ownership of Facebook Ad Admin accounts only meant that the asset is in the name of plaintiff, however, for managing, editing and viewing bill both parties had the same access. Witness further clarified that there is no data but a statistical detail which is maintained on Ad Admin Account. Witness on being asked as to why the admin account was created in plaintiff's name, stated that the benefit of creating the CS (COMM) 160/21 12 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
ownership of Facebook Ad Admin Account in its name was that in case the defendants did not pay for the ads, it could restrict the managing access of the defendants. Witness on the specific question clarified that when he said in cross-examination that defendants had access for managing and editing etc. of Facebook he meant that defendants had limited access and that he would have handed over credentials etc., which was so mentioned in email dt.16.07.2020 and 17.07.2020. In answer to court question witness stated that limited access meant permission/functions, which were allowed by plaintiff. It has thus been clarified by plaintiff that defendants could access the accounts for which limited access was already with them and he had undertaken to transfer the credentials which would have given control over the pages to the defendants. Witness admitted finalization of draft MOS dt. 11.08.2020 which was exhibited as Ex.D-3. Reply of legal notice of plaintiff was tendered in the evidence of PW-1 as Ex.D-4.
9. The plaintiff examined Mr. Shivansh Paliwal an ex- employee of defendants with whom the plaintiff had all the dealings, as PW-2. Witness stated in his evidence that he worked as Digital Marketing Manager with defendants from July, 2019 to Sept, 2020. During the aforesaid period plaintiff was providing services to the defendants and was reporting to him. He stated that plaintiff gave optimum CS (COMM) 160/21 13 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
services with best results during the tenure of services. He also proved e-mail Ex.PW1/5. Witness stated that he had introduced Ranjeet Kumar Ranjan to the defendants, however, volunteered that he had taken interview of three companies for Digital marketing services and the plaintiff was one of the parties interviewed. Witness specifically denied that he knew Mr.Ranjeet before he started providing services to defendants. He admitted that he was aware that plaintiff had taken ownership of all social media accounts in their name. He admitted that he was aware of the fact that plaintiff company had complete control of social media account for which the defendants were paying bills. Witness referred to Mr. Manish Jha, CEO of defendants and stated that he was aware of everything. He stated that he had discussed with Manish Jha, who stated that he wanted results and no written contract was required. He said that he did not take any opinion in this regard from the legal team. He stated that after 7-8 months when Nihal Batra joined he suggested that there should be a written contract. Witness stated that when plaintiff started providing services defendants concern was earning Rs.7 lakhs pm and after 6 months the sales figure had gone to appox. Rs. 70 lakhs pm. Witness stated that he used to verify the accounts whereafter Manish Jha used to verify and after him Mr. Rajiv Gupta started verifying the accounts. He stated that Manish and Rajiv were relying on his expertise on digital marketing and after about 2 months CS (COMM) 160/21 14 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
they started to understand the digital stats and on the basis of sales graph they could verify the expenditure and result. With regards to email Ex.PW1/5 witness stated he did not remember if he had taken approval from any official of defendants. He however, volunteered that he had written the email in his official capacity. He denied that it was a unilateral decision made by him. Witness admitted that he had made some payments to social media accounts directly from his credit card, which were later reimbursed by Manish Jha and Rajiv Gupta. He clarified that he used to make the payments before the plaintiff company started providing services to the defendants. Witness categorically denied that there was any connivance between him and the plaintiff.
10. Defendants in support of their case have examined four witnesses.
11. DW-1 has deposed in support of written statement. All the documents tendered in the evidence of this witness were shown to PW-1 & PW-2 and are mentioned as Ex.D-1 to D-10. In his cross-examination reply of defendant to all the questions was that Nihal Batra only knew about things; only digital technical team could specify; only Shivansh Paliwal knew; I do not know; I cannot tell; Nihal Batra and Kapil Bhagat can tell; Ashfaq can tell; it is not in my knowledge;. The witness therefore, could not answer a CS (COMM) 160/21 15 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
single question put to him in his cross-examination. His evidence does not help plaintiff at all since the witness surrendered completely in cross-examination and did not answer any relevant question.
12. DW-2 is Jogesh Sahni. He says that digital market was being looked after by Shivansh Paliwal, however, due to some anomalies, Mr. Kapil Bhagat was appointed as Asstt. General Manager online, who was qualified MBA and had technically sound knowledge in the operations with 15 years of relevant experience. Witness thus is trying to say that Kapil Bhagat was more qualified than Shivansh Paliwal. Witness stated that defendants had taken expert opinion from independent digital expert Ms. Aditi and Mr. Jatin of M/s.Call Me Social Agency. They found the invoices were incorrect and questioned the plaintiff as to why he created Facebook business Manager Account in his name. Copy of professional fee bill has been filed as Ex.D-
15. He has thereafter, deposed in terms of what happened subsequent to dispute had arisen giving reference to emails exchanged etc. in terms of written statement and has referred to already exhibited documents.
13. In cross-examination, on being asked what the anomalies were the witness stated that amount which was actually spent and the amount being asked were contradictory. The amount which was being spent on social media platforms CS (COMM) 160/21 16 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
and the supporting documents were missing. Witness stated that to address anomalies they had appointed Kapil Bhagat, who was technically strong. He stated that Kapil Bhagat found discrepancies, supporting documents were missing and he gave his opinion that the bills were not correct. He stated that the supporting documents were exact documents like details of influencers hired and the amount paid to them and who was the influencer. The witness was shown Ex.D-9 wherein the details needed for influencer were mentioned. Witness stated that he did not remember whether any reply to Ex.D-9 was received and was shown Ex.PW1/12, wherein the details were mentioned. Several questions were asked from witness regarding work profile of Shivansh Paliwal, Kapil Bhagat and his successor. The crux it appears is that plaintiff wanted to challenge the knowledge of Kapil Bhagat in analysis of its bills. Witness stated that he did not know about the policies of social media platforms and the online marketing for defendant concern was decided prior to his joining. He was thus unable to respond as to what was the understanding between the plaintiff and defendants in respect of online marketing. Witness stated that for due diligence they usually used to check through Google and Facebook and tally whether amount being claimed was tallying with data of Facebook and that due diligence in the present case was done by Kapil Bhagat. He stated that he did not know qualification and experience of Ms. Aditi CS (COMM) 160/21 17 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
& Sh.Jatin. Witness stated that no report/opinion was given by Kapil Bhagat, who had told verbally Nihal Batra about discrepancies and similarly no written report was submitted by M/s.Call Me Social Agency. He said that only physical meetings were held with them. Witness evaded the answer regarding the TDS deposited by defendants for the services rendered by plaintiff in 2020- 21 stating that it must be in the knowledge of account people and he was not aware of the same.
14. DW-3 Nihal Batra was examined by the defendants. Relevantly, like Mr. Shivansh Paliwal, Mr. Nihal Batra was also not working with defendants when he came to give his evidence in the court. Witness in his affidavit has stated that Shivansh Paliwal had paid two bills of Facebook directly to the Facebook from his personal credit card on 18.03.2020 which amounts was reimbursed by defendants to Shivansh Paliwal.
In his cross-examination witness stated that the first discrepancy that he found was in respect of Ex.PW1/2-A and the discrepancy was that there was no supporting document with it to justify the amount and that on the invoice it was not mentioned what activities plaintiff had done. Witness stated that plaintiff company had started providing services in Sept' 2019 but he was not aware of terms and conditions set between the parties at the time when the services were commenced. Witness stated that CS (COMM) 160/21 18 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
the loss of Rs.2.74 Crores as mentioned in Ex.D-4 was about Rs.9 lakhs paid in access to the plaintiff during Sept. 2019 to January, 2020 which included Rs.3.48 lakhs paid in excess reimbursement towards amount spent on Google Ads and balance amount on account of influencer campaign, Pop-Up events, for which no supporting documents were attached. Witness stated that Rs.65 lakhs approx. were spent by defendants on the Ad campaign on Facebook and Google, which went wasted as the Facebook Ad Admin account was not transferred to the defendants company as promised by plaintiff. Rs.50 lakhs per month were lost by defendants which the plaintiff has also confirmed in one of its emails dt. 24.08.2020. Witness stated that no legal action was taken by defendants to recover the loss of Rs.2.74 Crores. Witness stated that he was not a technical expert in digital marketing. He stated that Kapil Bhagat had vetted the invoices of Sept, 2019 to January, 2020 and has given his report that Rs.9 lakhs approx. were paid extra to the plaintiff. He, however, stated that he was not aware if the report of Kapil Bhagat to this effect was placed on record. No report/statement of account in fact has been placed by defendants on record. Witness stated that reconciliation referred in Ex.D-6 meant that defendants had tallied the amounts of bill which had been raised by the plaintiff company and the invoices submitted by the plaintiff to the defendants. Witness volunteered that reconciliation was done as CS (COMM) 160/21 19 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
defendants were in the process of settling the accounts with the plaintiff by taking all ad accounts rights so that the promotion could be started again. He stated that in Ex.D-6 he was talking about clearing outstanding amounts which were in dispute due to discrepancies and handing over the credential to start the promotion. Witness stated that credentials mentioned in Ex.D-6 and transfer of ownership meant the same thing. Relevantly, the words used in Ex.D-6 are transfer of credentials and not transfer of ownership. He stated that he did not know if there was any written agreement between the parties or not. He stated that he did not know how to measure ads or campaigns on social media and he did not know how the measure performance of Pop-Ups and Push as per invoice.
15. Defendants have examined Rajiv Gupta as DW-4 who was working as accountant with defendants. He has deposed that Mr. Manish Jha used to approve all budget and bills of plaintiff after discussion and verification by Mr. Shivansh Paliwal. After Manish Jha left Shivansh Paliwal used to discuss the monthly budget with him to spend for digital marketing for generating e-commerce sale. He stated that he always insisted Shivansh Paliwal to increase ratio of sale of e-commerce against the approved budget but never discussed any technical issues with him. Thereafter, he has deposed regarding Nihal Batra having discovered discrepancies and asking for supporting documents. He CS (COMM) 160/21 20 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
stated that the plaintiff's bills were verified by Shivansh Paliwal whereafter they were approved by marketing department head Manish Jha. He stated that in 2015-16 defendant's concern had set up their Website e-commerce portal, however, he did not remember how it was set up. Regarding Shivansh Paliwal witness stated that he was independently handling digital marketing department, he was B.Tech and would have been appointed based on his qualification and he was not aware of his expertise and technical knowledge. He stated that no process was followed by defendants in hiring the services of plaintiff and Shivansh Paliwal had directly introduced plaintiff to Mr.Manish Jha, who approved and decided to hire plaintiff's services. Regarding evaluation of bills and budget witness stated that there is a commitment for sales while approving budget; the criteria for bill is based on verification by Mr.Shivansh Paliwal. He volunteered that when the committed sales amount were met then it could be said that the bills were fit for approval. He stated that he did not rememberer the budget to sales ratio which defendants were expecting from plaintiff company. He stated that they did not have any technical expert to check the performance of e-commerce portal other than Shivansh and thereafter Kapil Bhagat.
16. Arguments were advanced by Sh. Arpit Marwah, Ld. Counsel for plaintiff as also by Ms. Neena Singh, Ld. CS (COMM) 160/21 21 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
Counsel for defendants. Both the parties filed detailed written arguments.
17. Issue No.1: Whether plaintiff is entitled to recovery of Rs.12,16,895/- towards providing advertising services to the defendant? OPP
18. The plaintiff in support of its contentions has relied upon invoices Ex.PW1/2A to 2L, which it claims are unpaid till date. The plaintiff has also filed ledger account from 01.04.2019 to 31.03.2021. The invoices and ledger accounts are supported with certificate u/s. 65-B of Indian Evidence Act. The defendants have admitted Ex.PW2E, 2/F, 2K & 2L amounting to Rs.1,01,466/- in the affidavit of admission & denial and thus the claim of plaintiff to the extent of Rs.1,01,466/- stands admitted. Regarding the remaining invoices the defendants are taking a stand that upon verification certain discrepancies were found in the invoices raised by plaintiff. The plaintiff was accordingly asked to supply supporting documents, which the plaintiff failed to supply and thus it was not entitled for recovery of amount of remaining invoices. Plaintiff is relying upon admission of defendants made vide e-mail dt. 10.07.2020 Ex.PW1/5 written by PW-2 and e-mail dt. 29.07.2020 written by DW-3 Nihal Batra admitting in the mails the balance and assuring that the payment shall be made. The plaintiff's reliance thus interalia is on Ex.PW1/2A to CS (COMM) 160/21 22 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
Ex.PW1/2L, Ex.PW1/3, Ex.PW1/5 and Ex.PW1/13 e-mail sent on behalf of defendants admitting the liability.
19. Defendants on the other hand are stating that since there were discrepancies and mismatch in the invoices, Mr. Kapil Bhagat, who was employed by plaintiff was asked to verify the invoices of plaintiff. Mr. Nihal Batra-DW-3 has stated that Mr. Kapil Bhagat had reported deficiencies in the invoices. DW-2 in his cross-examination stated that due diligence was done by Mr. Kapil Bhagat. Mr. Kapil Bhagat has not been examined as witness as it was stated by Ld.Counsel for defendants that he had left the services of defendants and was employed out of country. No report or internal communications, if any, have also been placed on record by the defendants showing discrepancies pointed by said Kapil Bhagat.
20. The defendants have claimed that they had engaged another agency M/s.Call Me Social Agency, who were called for vetting the invoices of plaintiff and they also stated that there was discrepancy in the invoices of plaintiff. No report of this agency has either been placed on record. DW-2 in his cross-examination stated that the agency had given an oral report in meeting.
21. The defendants in support of their contentions are placing reliance on e-mails dt. 21.07.2020 and 24.07.2020 which CS (COMM) 160/21 23 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
are Ex.D8 & D9. Email dt. 21.07.2020 at 1.13 pm Ex.D8 is reproduced hereunder:
"Dear Ranjeet, As discussed in today's con-call this morning. Find below the details of differences in the payment made you on account of Google Spending as per your invoice and the amount verified from Google portal:"
22. Thereafter, the mail provided for details of mismatch. Similarly in Ex.D-9 also the defendants are asking for certain clarifications which were provided by the plaintiff vide Ex.PW1/12. Although Ld. Counsel for plaintiff has taken an objection that the e-mails being electronic documents and the same being not supported with certificate u/s. 65-B of Indian Evidence Act could not be read in evidence, however, the plaintiff itself is relying upon Ex.PW1/13 which is in continuation of aforesaid two emails. It has not been disputed by the plaintiff that the aforesaid emails were written by the defendants, in fact plaintiff is relying upon Ex.PW1/12, whereby the response to the request of Nihal Batra asking for details pertaining to invoices was sent, which is Ex.D-9.
23. Documentary evidence:- It is the case of plaintiff that in response to the e-mails sent by Mr.Nihal Batra, the plaintiff had given its response vide e-mail Ex.PW1/12. This e-mail contains the mail of Nihal Batra whereby the CS (COMM) 160/21 24 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
response in respect of deficiencies in bill was called having been sent on 24.07.2020 (Ex.D-9). The response was sent vide email dt. 25.07.2020. Ld. Counsel for defendants has also referred to Ex.PW1/13 while claiming that these e- mails lost their value in view of the MOS having been entered into between the parties. Relevantly, no memorandum of settlement was ever signed by the parties and it only remained the exchange of documents through e-mail. All these documents, therefore, have same evidentiary value. The plaintiff is placing reliance on DW- 9 & Part of Ex.PW1/12 to claim that defendants had agreed to pay amount of Rs.10,07,333/- even before the MOS was entered into and had agreed to pay the aforesaid amount on the next day itself. The defendants, however, say that the handing over of cheque was subject to completing of the handover formalities. While the plaintiff has not stated what these hand over formalities being mentioned in Ex.PW1/13 referred to, the defendants have taken a clear stand that it was agreed that credentials of all the pages created by plaintiff shall be handed over to the defendants before the cheque could be given by defendants.
24. Oral evidence:- PW-1 was specifically asked by defendants if it had provided supporting documents w.r.t invoices 21 to 32 to which the witness responded that supporting documents and access was provided to CS (COMM) 160/21 25 M/s. OnePlace Web Solution Pvt. Ltd.
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defendants. In response to question as to when these documents were provided the witness stated that he has submitted his report files of Adsizzler Company Dt. 02.07.2022 which documents are annexures PI to PK to the plaint. Relevantly, these reports were filed by plaintiff but not tendered by it in evidence. Defendants have denied these documents in affidavit of admission/denial. The fact, however, remains that the reports were mentioned in the cross-examination of PW-1 on the question being asked by counsel for defendants. The reference therefore, came in answer to a question. The defendants did not give any suggestion to the plaintiff that these reports were incorrect. In the admission/denial also it has been stated that report annexure PI was for the period of 01.02.2020 to 29.02.2020 and therefore, could not be in respect of invoices which was issued on 17.03.2020. Annexure PJ was for the period from 01.03.2020 to 31.03.2020 and invoice was sent by plaintiff on 31.03.2020 and the report PK was for the period from 01.06.2020 to 30.06.2020 and the corresponding invoice was of 01.07.2020 and therefore, these reports could not be in relations to the invoices raised. From the reasoning given by defendants in affidavit of admission/denial itself it is clear that reports were corresponding to a month's period exactly or slightly prior to the date of invoices. The plaintiff in these reports has given impression click CR, CPM etc. and corresponding money spent. PW-1 has given a clear stand CS (COMM) 160/21 26 M/s. OnePlace Web Solution Pvt. Ltd.
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about his two companies & the Adsolz products, which was used to measure Pop-Ups etc, which has not been challenged by the defendants in cross-examination.
25. The other ground given by defendants to deny these documents was that amount of invoices was not tallying with the amount mentioned in these reports. In the e-mail Ex.PW1/12 the plaintiff has mentioned about the difference in amounts as: "the influencer amount adjusted in Google and Facebook in every bill". PW-1 stated categorically in his cross-examination that PI to PK were the reports filed by it and at the time of raising of invoices supporting documents were supplied. No cross- examination of the witness was conducted either on the ground of genuineness of these documents or otherwise.
26. What were the discrepancies?- DW-2 in his cross- examination stated that exact supporting documents needed in support of amount being claimed were exact amounts like details of influencers hired and amount paid to them and who was the influencer. In this regard the plaintiff has relied upon Ex.PW1/12 wherein it is written "due to confidential info they do not expose any influencer's name until a contract is signed". Admittedly, there was no agreement between plaintiff and defendants mandating entering of contracts or disclosure of names of influencers, who were to be engaged for endorsing the CS (COMM) 160/21 27 M/s. OnePlace Web Solution Pvt. Ltd.
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products of defendants. The fact is that digital sale of the plaintiff had gone up from Rs.7 lakhs to Rs.70 lakhs after services were taken from plaintiff as stated by PW-2 in his cross-examination. The defendants have taken a stand that defendants suffered losses throughout the period when services were provided by plaintiff and that the losses are reflected in defendants' books of accounts. No suggestion was given to PW-2, who was an ex-employee of defendants that the figures being given by him (i.e from Rs.7 lakhs to Rs.70 lakhs) were incorrect. Defendants themselves have not produced any document to suggest that any loss was suffered by them. It is settled law that mere pleading of a party cannot be substituted for evidence. The one who pleads something also has the onus of proving it by producing evidence in support of such plea. (Reliance placed on the judgments in Manager Reserve Bank of India, Banglore Vs S. Mani, (2005) 5 SCC 100 & Essen Deinki Vs Rajiv Kumar, (2002) 8 SCC 400).
27. It was stated by DW-3 in his evidence that defendants were losing Rs.50 lakhs on account of the closure of accounts, which shows that defendants were earning atleast Rs.50 lakhs a month on account of efforts put by plaintiff through these social media accounts.
28. DW-3 stated that the loss of Rs.2.74 Crores as mentioned CS (COMM) 160/21 28 M/s. OnePlace Web Solution Pvt. Ltd.
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in Ex.D-4 suffered by defendants was about Rs.9 lakhs paid in excess to the plaintiff during Sept. 2019 to January, 2020 which included Rs. 3.48 lakhs paid in excess reimbursement towards amount spent on Google Ads and balance amount on account of influencer campaign, Pop- Up events, for which no supporting documents were attached. He has also referred to exhibits D-1 to D-12 and has deposed in terms of written statement.
29. In respect of losses suffered by defendants DW-3 in his evidence stated that certain payments were made by PW-2 Shivansh Paliwal, which were reimbursed to him. He deposed that Shivansh Paliwal had paid two bills. No details of what excess payment and how was mentioned in the evidence of this witness. It was also not stated or shown from the record that the payments made to Shivansh Paliwal were duplicated by plaintiff in his invoices. In fact, PW-1 had stated in his cross-examination that the defendants used to pay some bills of You-tube ads directly through Facebook and other than that social media accounts' bills were paid by plaintiff and subsequently reimbursed by defendants. No statement of account has been tendered by defendants. Defendants have also failed to show from the statement of account of plaintiff as to how the excess amount was calculated.
30. An important aspect of case was that there was no written CS (COMM) 160/21 29 M/s. OnePlace Web Solution Pvt. Ltd.
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agreement executed between the parties. It was argued by Ld. Counsel for defendants that PW-2, who had introduced plaintiff to the defendants was in collusion with plaintiff. Ld. Counsel for plaintiff stated that no such plea was taken by defendants in the written statement and the stand was taken only after PW-2 gave evidence in favour of plaintiff. The argument therefore, is beyond pleadings and cannot be entertained. Reliance placed upon judgment in Ram Sarup Gupta (dead) by LRs., Vs. Bishun Narain Inter college and others AIR 1987 Supreme Court 1242 wherein it was held that "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equality settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it."
31. DW-2 in his cross-examination stated that Shivansh Paliwal-PW-2 was overall Incharge of online operations and that after appointment of Kapil Bhagat he was terminated within one and a half or two months. No reason has been given for termination. Termination letter has also not been placed on record. Even DW-3 stated in his evidence that due to some anomalies Kapil Bhagat, who was qualified MBA was appointed.
CS (COMM) 160/21 30 M/s. OnePlace Web Solution Pvt. Ltd.
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32. From the testimony of these witnesses the reason for appointment of Kapil Bhagat comes out to be his qualification. PW-2 Shivansh Paliwal was as it appears not equally qualified. Regarding the relation between plaintiff and PW-2, while PW-2 stated that he had called three companies and selected plaintiff, DW-4 stated that only plaintiff was called for services to be provided. Having stated hereinabove that the defence of collusion between plaintiff and PW-2 being set up is beyond pleadings yet even it is admitted that plaintiff was introduced by PW-2, it is not the case of defendants that the defendants did not benefit from the services of plaintiff. It is defendant's witness who said that at the time when dispute arose defendants were making Rs.50 lakhs per month. It would be relevant to refer to the evidence of PW-2, who in his cross-examination stated that when plaintiff started providing services, the defendant concern was achieving Rs.7 lakhs per month and after six months the sales figures had gone to approximately Rs.70 lakhs per month, which statement has remained unrebutted as there was no cross- examination of the witness on this point. The plaintiff thus has been able to show that by the services rendered by it sales of defendants have shot up tremendously. Reliance is placed upon judgment in 1987 (2) Rent Law Reporter (Cal.) (DB) 458 wherein it was held that "failure to cross examine a witness on a material particular may amount to CS (COMM) 160/21 31 M/s. OnePlace Web Solution Pvt. Ltd.
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acceptance of his statement on that point."
33. As argued by counsel for defendants herself both the parties have suffered because of non-execution of agreement. The plaintiff suffered because there were no parameters fixed for deciding its payment and defendants because plaintiff got a right to create advertisement pages in its own name. In absence of any written agreement the stand of plaintiff is that it supplied reports whichever it had. Relevantly, in the era of digital marketing where several modes for promotion of products viz using the influencers are applied by the advertisers, in absence of any document containing categoric terms on how the promotion through these modes would be given effect to, it is difficult to say that the plaintiff would not have used the influencers and generated clicks and Pop-Ups as has been mentioned in its reports. Even in the field of advertising in physical world it is not possible for anyone to quantify the profit which is generated from the advertisements. It would be relevant to refer to the testimony of DW-4, who stated that he never discussed technical issues with Shivansh Paliwal but always insisted him to increase ratio of sale of e-commerce against the approved budget. He does not say that Shivansh failed in getting that ratio increased. DW-4 further stated regarding evaluation of bills and budget that there was a commitment for sales while approving budget; the criteria for bill was based on CS (COMM) 160/21 32 M/s. OnePlace Web Solution Pvt. Ltd.
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verification by Mr.Shivansh Paliwal. He volunteered that when the committed sales amount were met then it could be said that the bills were fit for approval. Witness stated that he did not remember the budget to sales ratio which the defendants were expecting, however, he did not say that this criteria was not met either.
34. The plaintiff was engaged by the defendants and it is not denied that services were rendered by it during the period for which the invoices Ex.PW1/2A to 2L have been raised. The defendants have not been able to point out discrepancies in the bills except stating that the supporting documents were not provided, explanation of which has come that details of influencers and amount were not mentioned. PW-1 has categorically stated that in absence of any agreement between the parties details of influencers hired and amounts paid to them could not be supplied. The defendants anyway agreed to pay the dues of the plaintiff subject to "complete handover formalities". It is also admitted fact between the parties that accounts were reconciled and amount of Rs.11,26,047/-, was agreed upon as dues payable to plaintiff by defendants. Necessity and aspect of formalities to be completed shall be discussed while deciding issue no.3 as transfer of accounts was an independent act having no direct relation with services rendered by plaintiff.
CS (COMM) 160/21 33 M/s. OnePlace Web Solution Pvt. Ltd.
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35. In so far as memorandum of settlement is concerned, Ld. Counsel for the plaintiff argued that defendants having failed to show that there was any deficiency in the reports submitted by plaintiff cannot force a settlement to be agreed between the parties. Ld. Counsel for plaintiff in this regard relied upon judgment in Vatech Global Co. Ltd. Vs. Unicorn Denmart Ltd. & Ors. CS (OS) 1849/2015 and relied upon the para where the Hon'ble Court had held that "defendants cannot withhold the money with the object of pressurising the plaintiff to enter into any agreement".
36. There is nothing on record to suggest that defendants were dissatisfied with the explanation given by plaintiff. On the contrary mail Ex.D-6 shows that the accounts were reconciled & the defendants had agreed to release the payment. The only thing that is coming up is that parties decided to end up their relationship and the plaintiff was to hand over credentials of all the pages having been created by the plaintiff to the defendants. Whether or not this condition was satisfied shall be considered hereunder, however, in my opinion the plaintiff by the documents tendered in evidence has been able to prove that it had rendered services to defendants for which the invoices were raised. The plaintiff had also provided documents in support of invoices, whichever it could. The defendants have not brought on record any document to suggest that it CS (COMM) 160/21 34 M/s. OnePlace Web Solution Pvt. Ltd.
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was dissatisfied with explanation given. The plaintiff therefore, is entitled for recovery of Rs.11,26,047/-, the amount computed after deduction of TDS etc.
37. Issue No.2:- Whether plaintiff is entitled to pendent-lite and future interest. If so at what rate? OPP
38. Plaintiff has claimed interest @ 18% per annum. As per Section 34 CPC, wherein and in so far as a decree is for payment of money, the court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of suit to the date of decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit with further interest at such rate not exceeding 6% pa as Court deems reasonable on such principal sum from the date of decree to the date of payment or to such earlier date as the Court deems appropriate. As per proviso to sec 34 CPC, where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions. Explanation I. -In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970. Explanation II.- For the purposes of this section, a CS (COMM) 160/21 35 M/s. OnePlace Web Solution Pvt. Ltd.
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transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
39. Having regard to the nature of commercial transaction, this Court is of the view that interest @ 10% per annum is reasonable and would serve the ends of restitutive justice. Plaintiff is entitled to the said interest from the date of filing of present suit till the realization of the entire amount.
40. Issue No.3:-Whether plaintiff failed to handover the complete data i.e Facebook Ad.Account and credentials to the defendant pursuant to the agreed final MOS dated 11.08.2020 vide email dated 11.08.2020 exchanged between the parties and consequentially defendant lost all vital data of clients and confidential information and thereby breached the agreement/MOS dated 11.08.2020 and if so, what is the effect? OPD
41. It is the case of defendants that the plaintiff with dishonest intentions had created Super Facebook Ad Admin business manager account in its own name as Admin instead of creating it in the name of defendant no.1. It was argued that there was a verbal agreement and a clear understanding that all Ad Accounts were sole property of defendants, who had paid for all the accounts. The plaintiff after the dispute arose failed to handover defendants' sole owned super Ad Account and Shahnaz CS (COMM) 160/21 36 M/s. OnePlace Web Solution Pvt. Ltd.
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Ayurvedics Super Ad. Admin business manager account- full admin access to the defendants.
42. Vide email dt. 16.07.2020 defendants had asked for all its credentials including the credentials for (1) Google Tag Manager (2) Google Analytics (3) Google AdWord (4) Facebook Fan Page and Ad Console (5) Instagram Handle Name. The parties were negotiating a settlement and in the course it was agreed that handover process of credentials and payment would be done simultaneously. Defendants in this regard are relying upon Ex.D-6 (email dt. 16.07.2020 at 7.31), however, embedded with it is subsequent e-mail of plaintiff dt. 16.07.2020 at 7.36 pm, wherein the plaintiff stated that it will hand over all the credentials to the defendants without any limitation and requested for release of payment. On 17.07.2020 at 11.41 plaintiff sent yet another e-mail, wherein it is recorded "as per our telephonic discussion, I would like to clear the confusion that we will handover credentials post receiving cheque."
43. It is the case of defendants that plaintiff insisted on complete payment before disclosing credentials since it was aware of the fact that the Facebook does not allow transfer of Admin account and that they would not be able to hand over the Admin account to the defendants. The plaintiff's stand as deposed by PW-1 in cross-examination is that the very reason for creating pages in plaintiff's name CS (COMM) 160/21 37 M/s. OnePlace Web Solution Pvt. Ltd.
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was that it wanted to ensure that defendants paid his dues. It is the case of defendants that a Memorandum of Settlement was arrived at between the parties wherein the plaintiff had agreed to hand over complete data to defendants and the defendants were to pay an amount of Rs.11,26,047/- after deducting TDS & GST amount to the plaintiff. As per admitted facts, plaintiff had visited the office of defendants on 12.08.2020.
44. The defendants claim that during the process of hand over of credentials, the plaintiff failed to hand over Shahnaz Ayurvedics account ID 108347206610573-full Admin access to the defendants as was agreed in the memorandum of settlement. The e-mails dt. 24.08.2020 Ex.D-4 were exchanged between the parties. It is stated that on account of failure of plaintiff to hand over Shahnaz Ayurvedics owned Super Face book Ad Admin Business Manager Account, the defendants lost all vital data of clients and confidential information.
45. It was argued by Ld.Counsel for plaintiff that plaintiff had agreed to give the admin control to the defendants and had also agreed that no one from the side of plaintiff would access the page.
It is the admitted case of parties that credentials of all other accounts have been shared by plaintiff with the defendants. Dispute therefore, is only about not handing CS (COMM) 160/21 38 M/s. OnePlace Web Solution Pvt. Ltd.
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over ownership of Facebook Ad Account as mentioned above. The case of the defendants is that plaintiff had intentionally made the Facebook Account in its name and because of this dishonest intention the defendants have lost a lot of data. Case of the plaintiff on the other hand is that the defendants have changed their stand in this regard several times. In the Memorandum of Settlement Ex.D3 & D3-A the defendants have only requested access to the account in recital H & I. Later, in the written statement defendants started alleging that plaintiff failed to transfer Admin Account access and during cross-examination the defendants started talking about transfer of ownership of Facebook Ad Account. It was argued that plaintiff had consistently maintained that it did not provide any assurance regarding transfer of ownership but had agreed to provide credentials of all social media account including Facebook. In cross-examination of PW-1 a suggestion was given that he gave false assurance that he would hand over Facebook Ad Admin account when he knew that Facebook does not allow transfer of ownership. The witness volunteered that he had already stated that he would hand over credentials which allowed defendants to create/modify and mange all accounts.
46. It is stated that plaintiff was also prepared to share the credential of all social medial account including Facebook; the defendants on the other hand were demanding transfer CS (COMM) 160/21 39 M/s. OnePlace Web Solution Pvt. Ltd.
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of ownership, which is not feasible as Facebook does not allow transfer of ownership. It was argued that the access to all the accounts was provided by plaintiff as has been admitted by DW-3 in cross-examination, wherein he stated that defendants could verify three invoices after logging into Google Ad Console and DW-2 testified that defendants followed all due diligence process of identifying and resolving discrepancies by cross referencing the claimed amount with Facebook and Google data. It was argued that defendants thus had access to social media account including Facebook and the fact that they lost any data due to lack of access to the Facebook account is incorrect. Ld. Counsel for plaintiff in this regard argued that defendants have not been able to explain as to what data was lost by the defendants. It was argued that no data of clients per se is maintained on Ad pages. To my understanding in the field of digital marketing the process of advertisement is governed by AI where the Ad learns persons who view the Ad, the advertisements are then shown over and over again to such persons as their details gets in the data base, which can be termed as target audience. Targeting customers is a continuous process in the digital world. It is a known fact that Facebook & Google etc. keep changing their algorithms and the Ad learning also changes as and when these algorithm changes. The advertisers have to keep working on Ad learning on a continuous basis. The defendants thus have CS (COMM) 160/21 40 M/s. OnePlace Web Solution Pvt. Ltd.
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not been able to show what data if at all was lost by them.
47. Ld. Counsel for defendants had argued that plaintiff himself had admitted that because of non-transfer of data defendants were suffering loss of Rs.50 lakhs per month. It would be relevant to mention what the plaintiff wrote in e-mail. In email dt. 24.08.2020 plaintiff is referring to defendant no.2 and writes as under:-
"respected Shahnaz /Nelofar Maam- Trust me I have never damaged you or even I will not damage you personally at all. I always given you benefit. Today your team is fighting for the ad account. Just for your knowledge if the ad account will be in the idle for 6 months with no activity then you will loss the entire learning, audience or any other benefits. We are about to complete 2 months of the idle state. Legal proceedings will take up to 1 year and I am sure the decision will come in our favour and you have to pay, principal amount, interest and damage amount. What you will your brand gain if the Ad account loosed everything?
Maam, due to this entire unwanted activity you loss more than 1 cr. Shahnaz online sale was more than 50 L per month. What's the current sale maam? Do you still think that 12L is bigger for you or 1cr?" (sic)
48. What the plaintiff is trying to say is that because of CS (COMM) 160/21 41 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.
adamant behaviour of defendants' team it was losing Rs.50 lakhs a month. The plaintiff in the same mail had given to the defendant an alternative of how the issue of ownership, if it bothered the defendants so much, could be resolved. The mail says as under:-
"you can create a new ad account and slowly migrate the ad account learning, audience, or any benefit to another ad account. For the time being, you can execute 2 ad accounts one is of Ad Account with us and another one with your business manager. Initially, your ad account with Adsziller will have higher spent but later on once data will be ... on the other ad account parallelly we will then completely using a new ad account. In this case, you will not loss anything at all."
(sic)
49. Plaintiff thus had explained to defendant no.1 how the loss which was being caused because of adamance of employees of defendant no.1 could be prevented.
50. A lot of stress has been given on why the account was created by the plaintiff in its name. PW-1 has categorically stated in his cross-examination that since there was no written agreement plaintiff had created account in its own name as the plaintiff used to make payment initially and defendants used to reimburse. Witness has categorically stated that defendants had access to all accounts. In CS (COMM) 160/21 42 M/s. OnePlace Web Solution Pvt. Ltd.
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answer to the question of the counsel for defendants seeking explanation for ownership of accounts in plaintiff's name-PW1 replied that by ownership it meant that plaintiff company had control over all accounts and was responsible for payments and adherence to the rules and regulations of accounts. The witness stated that he had transferred the ownership of all accounts except Facebook Ad Account although he was not liable to transfer them as there was no written agreement between the parties in this regard. The witness again stated in his cross-examination that the Admin Account was created in its name because there was no written agreement and parties were working on credit basis. Whatever be the reason the defendants failed to show that creation of page in plaintiff's name impacted services of plaintiff being rendered to defendants in any manner. In fact, plaintiff in Ex.D-4 explained how defendants could divert all contents of page to a newly created page without any loss. Defendants, however, it seems on account of lack of understanding of working of digital marketing became adamant for getting ownership of a particular account.
51. An MOS was drafted between the parties which has been exhibited by the defendants as Ex.D10-A. This document was shared between the parties through email Ex.D-10. Certain changes were made in the MOS Ex.D10-A by the plaintiff, who sent the corrected version of MOS through CS (COMM) 160/21 43 M/s. OnePlace Web Solution Pvt. Ltd.
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mail Ex.D-3. The corrected copy of MOS is Ex.D3-A. Ld. Counsel for the plaintiff took an objection to these documents stating that they were computer generated and could not be read in evidence in absence of supporting certificate u/s. 65-B of Indian Evidence Act. He also relied upon the judgments in Anwar P.V Vs. P.K.Basheer & Ors. (Civil Appeal) No.4226/2012 & Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors. (Civil Appeal) No. 20825/20826 of 2017. The fact, however, remains that the plaintiff has itself admitted these documents more specifically the MOS Ex.D3-A having stated categorically that contents of this document which is annexure D were correct and admitted. The plaintiff thus cannot dispute the genuineness of these documents.
52. The defendants are relying upon MOS Ex.D-10-A, which was an annexure of Ex. D-10 corrected version of which is Ex.D3-A, which was sent with the mail written by plaintiff to the defendants. A perusal of this document would show that plaintiff in the entire document is talking about handing over of credentials or access of all the handles/accounts, having been created by it in the name of defendants, to the defendants. The plaintiff had also undertaken not to allow admin access to anyone else and to terminate his own admin access. It had undertaken to grant Super Admin User Name/password for all social media account and analytic account managed by it for the CS (COMM) 160/21 44 M/s. OnePlace Web Solution Pvt. Ltd.
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first party i.e the defendants. In turn the plaintiff had to clear the dues of Rs.11,26,047/- after deduction of TDS of Rs.18,620/- and retaining GST amount of Rs.72,228/-. The plaintiff had also agreed that after execution of MOS, its directors, employees, persons acting through them would not access directly or indirectly any of the Admin accounts of Shahnaz Hussain Facebook Ad account, Google ad account, facebook page and instagram page etc.
53. A bare perusal of the document would indicate that parties were talking about sharing of access and credentials. At no point of time did the defendants asked for transfer of ownership of Facebook Ad Page. Ld. Counsel for the plaintiff has submitted that once the undertaking was given the right, permission, authority etc. of directors or persons working under the authority of plaintiff was withdrawn, there was no way the plaintiff would have had any control over the account of the defendants and inspite of the fact as to who is reflected as the owner of the page, the defendants would have been in control of the entire page with no interference of any kind from any corner whatsoever. It was argued that this is the only way transfer of a Facebook Ad Page can be carried as the concept of transfer of ownership is unknown to Facebook Ad page.
54. In view of above facts and discussion, the defendants have not been able to show what data did they lose. In so far as CS (COMM) 160/21 45 M/s. OnePlace Web Solution Pvt. Ltd.
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loss of business if any is concerned, the defendants could have avoided the same by taking control over the pages as was being provided by the plaintiff and it could have simultaneously created fresh pages which was done by it anyways thus not losing any data. Thus loss, if any of the defendants was more because of its adamance for asking something which was not permissible and in respect of which no written agreement had been entered into. The defendants have also been unable to show that the practice of creating pages by the advertisement service providers in their own name is unknown to the field of digital marketing and is illegal in anyway.
55. Issue No.4:-Relief including costs. In view of the aforenoted finding, a decree is passed in favour of the plaintiff and against the defendants in the sum of Rs.11,26,047/- alongwith interest @ 10% per annum from the date of filing of present suit till its realization and actual costs on submission of certificate by the pleader (inclusive of Court fees). Decree sheet be drawn up accordingly. File be consigned to record room.
(ANURADHA SHUKLA BHARDWAJ) District Judge (Commercial Courts)-02, South District, Saket, New Delhi.
Announced in the open court on 22.04.2024 CS (COMM) 160/21 46 M/s. OnePlace Web Solution Pvt. Ltd.
Vs. M/s. Shahnaz Ayurvedics & Anr.