Delhi District Court
Lion Services Ltd vs Indo Rama Retail Holdings Pvt. Ltd on 7 September, 2012
IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, NEW DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
CS No:63/10
Unique Case ID No. 02403C0314022010
Lion Services Ltd.
Having its registered officer at :
7393, B10, Vasant Kunj, New Delhi ......Plaintiff
Versus
Indo Rama Retail Holdings Pvt. Ltd.
Office - 1, Super Store,
903, Mohan Dev Building,
13, Tolstoy Marg, New Delhi.
Also at :
Dr. Gopal Dass Bhawan
28, Barakhamba Road,
New Delhi - 110001
Registered office at :
51 - A, Industrial Area, Sector - III, Pithampur - 453001
District Dhar, Madhya Pradesh,
(Through its authorised representative/concerned official) ......... Defendant
SUIT FOR RECOVERY OF RS.1,52,242/ ALONGWITH INTEREST
DATE OF INSTITUTION : 30.01.2010
DATE OF ARGUMENTS : 23.08.2012
DATE OF DECISION : 07.09.2012
C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 1 of 13
JUDGMENT
1. By filing the present suit, the plaintiff Lion Services Ltd. seeks a decree in the sum of Rs. 1,52,242.00/ along with pendentelite and future interest @ 18% per annum. Brief Facts
2. The case of the plaintiff is that the plaintiff is a company incorporated under the Companies Act, 1956 having its registered office at 7393, B10, Vasant Kunj, New Delhi. It is stated to be a leading house keeping and maintenance service provider in the country. The defendant is Indo Rama Retail Holdings Pvt. Ltd. having its registered office in Madhya Pradesh and other offices at Office - I Super Store, 903, Mohan Dev Building, 13, Tolstoy Marg, New Delhi as well as at Dr. Gopal Dass Bhawan 28, Barakhamba Road, New Delhi110001.
3. The background facts leading to filing of the present suit are that vide letter dated 10.08.2002, the plaintiff had entered into an agreement with the sister concern of the defendant which is Indo Rama Synthetics India Ltd. for providing house keeping services at their various branch offices at Delhi. It is further stated that the plaintiff used to provide services to the sister concern of the defendant at Gopal Dass Bhawan at 7th and 9th Floor of Mohan Dev Building, both situated at New Delhi at a consolidated amount of Rs. 58,000/ per month plus service tax. It is further stated that the office address of the defendant i.e Indo Rama Retail Holdings Pvt Ltd. as well as its sister concern i.e Indo Rama Synthetics India Ltd. is the same i.e. 903, Mohan Dev Building, 13, Tolstoy Marg, New Delhi.
4. It is further stated that the sister concern of the defendant i.e Indo Rama Synthetics India Ltd. terminated the agreement with the plaintiff vide letter dated 31.08.2006. C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 2 of 13 Further, it is alleged that the plaintiff continued to provide the house keeping services to the defendant i.e Indo Rama Retail Holdings Pvt Ltd. after having an oral agreement with it to provide services at the offices of the defendant at Connaught Place, New Delhi as well as at Noida, U.P. It is further stated by the plaintiff that there was a further understanding that the consolidated bills would be raised at the defendant's office address at Connaught Place, New Delhi. The plaintiff is stated to have provided the house keeping services to the defendant's offices at Connaught Place till 2009. However, the defendant had cleared all the payments for the services provided at the office at Connaught Place but withheld the payments for the services provided at its Noida office.
5. It is stated that it was also agreed between the parties that the defendant would be under obligation to release the payments for the services provided within fifteen days from the receipt of the same. It is further stated that despite plaintiff's rendering services to the defendant, the defendant has never adhered to the payment schedule. The plaintiff had communication with the defendant in this regard to which the defendant kept giving assurances for making payment within time. It is further stated that as per the final audited accounts of the plaintiff for the year 200809, an amount of Rs. 1,52,242.00/ is due and payable by the defendant to the plaintiff. However, such payment has been withheld by the defendant despite repeated demands of the plaintiff. On 06.10.2009, the plaintiff served a notice to the defendant at both the addresses of the defendant. However, the plaintiff received no response of the defendant. Thus the plaintiff filed the present suit.
6. Upon filing the present suit, summons were issued to the defendant. The defendant filed its written statement. In its written statement, the defendant has objected to the C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 3 of 13 claim of the plaintiff on the ground that no such agreement for rendering housekeeping services was entered between the plaintiff and the defendant. It is further stated that the agreement dated 10.08.2002 was between the plaintiff and Indo Rama Synthetics India Ltd. which is another company and not the defendant. Even the said agreement dated 10.08.2002 was terminated by Indo Rama Synthetics India Ltd. by letter dated 31.08.2006. As far as the claim based upon the oral agreement between the plaintiff and the defendant, the plaintiff has failed to provide the name of the person with whom they had the oral agreement and the date of the alleged oral agreement. It is further stated that there was never any understanding regarding rendering services at the Noida office of the defendant. It is further denied that the plaintiff has ever raised any originals bills for the said services upon the defendant. It is further stated in the written statement that the defendant had understanding with respect to the office at Mohan Dev Building the dues of which has been paid in its entirety and there is no dues payable by the defendant to the plaintiff. The defendant has denied the allegations of the plaintiff that there was an agreement to provide any service in the office at Noida. It is further stated that the defendant never availed any service from the plaintiff in any of its Noida office. As far as the legal notice dated 06.10.2009, the defendant has denied receiving any legal notice and further stated that no such notice was issued in the name of the defendant company.
7. In addition to affirming the pleadings in the plaint, the plaintiff has stated in its replication that Indo Rama Synthetics India Ltd. and Indo Ram Retail Holdings Pvt. Ltd. are sister concerns and two of the Directors of both the companies are same and whenever the officials of the plaintiff company visited the defendant at both the addresses in Delhi, they were informed that name of Indo Rama Synthetics India Ltd. C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 4 of 13 has been changed to Indo Rama Retail Holdings Pvt. Ltd. It is further stated that the legal notice sent to Indo Rama Synthetics India Ltd. has not returned although it was sent at the same address as given in the plaint. It is further stated that as per the oral agreement, the plaintiff provided services to the defendant at its office - Office 1 Super Store at Noida as well. It is also stated in the replication that the original bills were raised and sent to the defendant.
Issues
8. On 12.01.2011, the Ld. Predecessor of this Court framed the following issues :
1. Whether the plaintiff is entitled to the amount of Rs.1,52,242/? OPP.
2. Whether the plaintiff provided services at the Noida office of the defendant company? OPP/OPD.
3. Whether the plaintiff is entitled to pendentelite and future interest? If so, at what rate and for which period? OPP.
4. Relief.
Evidence lead by parties
9. In its evidence, the plaintiff produced 3 witnesses. The plaintiff produced Sh. Prem Shanker Mishra, Assistant Manager of the plaintiff as PW1 who tendered his evidence by way of affidavit Ex.PW1/A and relied upon documents Ex.PW1/1 to Ex.PW1/19, documents Mark A, Mark B, Mark C and Mark D and Ex.PW1/24 to Ex.PW1/26. Thereafter, PW1 was crossexamined. The plaintiff produced Sh. Laxman Prasad Aggarwal, Manager Accounts of the plaintiff who tendered his evidence by way of affidavit Ex.PW2/A and relied on document Ex.PW2/1. Thereafter, PW2 was cross examined. The plaintiff also produced Sh. Deepak Kanda, Nodal Officer of Bharti Airtel C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 5 of 13 Ltd. as PW3 who produced the records of phone number 01204255089 Ex.PW3/A. He further deposed in his examination that as per the records of Bharti Airtel Ltd. the said number belongs to Indo Rama Retail Holding Pvt. Ltd., which is the defendant. Thereafter, the plaintiff's evidence was closed.
10. In support of its case, the defendant produced Sh. Rahul Kishore, the authorised representative of the defendant company as DW1 who tendered his evidence by way of affidavit Ex.DW1/A and relied upon document Ex.DW1/1. Thereafter, DW1 was crossexamined. Thereafter, the defendant closed its evidence. Arguments of Advocates
11. This Court has heard Ms. Seema Tiwari, Ld. Advocate for the plaintiff and Ms. Usha Srivastava Ld. Advocate for the defendant and perused the record. Ms. Seema Tiwari relied upon the ledger account Ex.PW1/26 and Ex.PW1/14 maintained by the plaintiff with regard to the defendant's office at Noida. She also relied upon the document Mark C which is the photocopy of the letter dated 21.06.2007 written by the plaintiff to the defendant requesting to clear the payment and from serial no.6 to 10, the invoices for the services rendered at the Noida office of the defendant have been mentioned. She also relied upon document Ex.PW1/26 which is the ledger account maintained by the plaintiff of the defendant Indo Rama Retail Holdings Pvt. Ltd. and specifically the ledger for the year 01.04.2007 to 31.03.2008, wherein the entries made in the shaded portion were with respect to the services that were rendered at the defendant's office at Noida. She also referred to the email dated 28.07.2009 Ex.PW1/24 which is the request of the plaintiff to the defendant for releasing the payment of Rs.1,52,242/. She also referred to the Statement of Accounts for the period 1st April, 2007 to 29th June, 2007 pertaining to Office - I Super Store showing receiving stamp which shows that it C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 6 of 13 was received by the defendant. She also relied upon decisions in V.N. Deosthali v State 2010(2) AD (Delhi) 80, K.K. Manchanda & Anr. v. S.D. Technical Services Pvt. Ltd. 152 (2008) DLT 498, Sharma Enterprises v Hotel Leelaventure Ltd. 159 (2009) DLT 60, Adktiebolaget Volvo & Ors. v R. Vankatachalam & Anr. 160 (2009) DLT 100, Col. (Retd.) Dalip Singh Sachar v Major General (Retd.) Prabodh Chander Puri 141 (2007) DLT 209 (DB), Taam Singh Duggal and Co. v Union Bank of India & Ors. VI (2000) SLT 87, Vora Abbas v Proprietors of the Firm of Shah Maluk Chand AIR 1955 NUC 318, V.M. Enterprises v Bindal Agro Chemicals Ltd. 2005 (1) RAJ 524 (Delhi), Kulamani Mohanty v Indl. Devpt. Corpn. Of Orissa Ltd., Bargarh, AIR 2002 Orissa 38 and Dharampal Arora v M/s Share Tips 2010 V AD (Del) 190.
12. On the other hand, Ms. Usha Srivastava, Ld. Advocate for the defendant submitted that no legally enforceable agreement was entered between the plaintiff and the defendant. She further submitted that the documents relied upon by the plaintiff for showing that the phone (fax) no.01204255089 as alleged by the plaintiff to be the defendant's number for the office at Noida is based on a photocopy of salary and attendance sheets which are Mark J and Mark K. Hence, such documents being photocopy cannot be produced in evidence. Reliance was placed on behalf of the defendant on the decision of National Insurance Company v V. Bimla Devi 2006 ACJ 402 (HP).
Findings
13. This Court has heard Ld. Advocates for the plaintiff and the defendant and perused the record. The issue wise findings of this Court are as under : C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 7 of 13 Issue No.1 - Whether the plaintiff is entitled to the amount of Rs.1,52,242/?
14. The onus to prove the Issue No.1 is on the plaintiff. In support of the claim of the plaintiff, it has produced the billwise details for the period 1st April, 2009 to 30th September, 2009 alongwith ledger account pertaining to Office - I Super Store at Tolstoy Marg Ex.PW1/14 (Colly) which shows the total pending amount for the Office - I Super Store to be Rs.1,52,242/. The plaintiff has also produced the invoices Ex.PW1/15 to Ex.PW1/19 matching the entries made in the ledger account i.e. Rs. 30,442/ each for the dates 30.12.2006, 31.01.2007, 28.02.2007, 31.03.2007 and 30.04.2007 totaling to Rs.1,52,242/.
15. As per Section 34 of the Indian Evidence Act 1872 (hereinafter referred to as "Evidence Act"), entries in books of accounts including those maintained in an electronic form, regularly kept during the course of business, are relevant but such statements shall not alone be sufficient evidence to charge any person with liability.
16. In Gopasunder Sabatho and another v Chunilal and another AIR 1955 Ori 6, it was held that the evidence of a party itself is a substantial compliance with the provisions of Section 34 of the Evidence Act corroborating the entries to fasten the liability. A similar view was taken in Kulamani Mohanty v Industrial Development AIR 2002 Ori 38. It was further held in the case of Kulamani Mohanty that : (@ AIR p.42) "13. ....[i]f the books of accounts produced as the primary evidence and oral evidence is led as corroborative evidence relating to the entries in the books of accounts maintained in the regular course of business, unless the contrary is proved or any doubt is raised through evidence regarding, genuineness of such books of account or any of the entries, then such books of account should be regarded as proved."
C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 8 of 13 It was further held in Kulamani Mohanty that when the entries were proved by the official staff from the books of account and when those entries were proved not only without objection but also no evidence was brought on record worth the name to doubt correctness of those entries, there should be no reason to reject such evidence.
17. In the instant case, PW1 Sh. Prem Shanker Mishra who is the Assistant Manager Legal of the plaintiff has specifically deposed in his affidavit that the plaintiff company had been maintaining regular accounts relating to the defendant in computerised format, wherein all entries have been appropriately recorded and on the basis of the said accounts, an amount of Rs.1,52,242/ is due and payable by the defendant to the plaintiff. The defendant has not crossexamined PW1 in respect of validity of the statement of account as well as ledger and invoices Ex.PW1/14 to Ex.PW1/19. The whole crossexamination is mainly based upon challenging the oral agreement between the plaintiff and the defendant.
18. As far as the challenge to oral agreement by the defendant, it is noted that in the written statement, the defendant has itself admitted the oral agreement between the plaintiff and the defendant, as can be seen from para 5 of the reply on merits where it is specifically pleaded by the plaintiff that there was understanding with respect to office at Mohan Dev Building the dues of which has been paid in its entirety. Hence, the defendant is estopped from taking a stand that the defendant never had any oral understanding or oral agreement with the plaintiff.
19. Further, PW2 Sh. Laxman Prasad Aggarwal who is the Manager Accounts of the plaintiff has also specifically deposed in his affidavit that the statement of account of the defendant appears in the accounting system of the plaintiff company and the extracts of the ledger account as on record are true copies of the computerised C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 9 of 13 statement of account Ex.PW1/14. He further deposed that the entries to the ledger accounts are made on the basis of the invoices for each transaction and he relied upon the invoices Ex.PW1/15 to Ex.PW1/19. He has also tendered the certificate u/s 65B of the Evidence Act Ex.PW2/1. During the crossexamination of PW2, the Ld. Advocate for the defendant has challenged the said invoices on the ground that the plaintiff uses Tally Software and an entry can be made in back date using the Tally Software. However, the defendant could not rebut the presumption since the PW2 has deposed in the crossexamination that the invoice can only be generated on a particular date though the challan may be of back date. Hence, the defendant has been unable to rebut the presumption raised in favour of the invoices Ex.PW1/15 to Ex.PW1/19. The testimony of DW1 in his affidavit states that by using Tally Software, invoices in back date and account entries in back date both are possible. However, PW2, during his crossexamination, has specifically deposed that invoices can only be generated on a particular date. Except for making a bald assertion through DW1, the defendant has not brought any credible evidence to doubt the invoices relied upon by the plaintiff.
20. The reliance placed upon by the defendant on the judgment National Insurance Company v V. Bimla Devi is misplaced since that decision deals with cases of production of primary and secondary evidence without bringing such documents through witnesses. However, in the present case, the ledger Ex.PW1/14 and invoices Ex.PW1/15 to Ex.PW1/19 have been produced through PW1 Sh. Prem Shanker Mishra and these documents are also relied upon by both the plaintiff's witnesses i.e. PW1 Sh. Prem Shanker Mishra and PW2 Sh. Laxman Prasad Aggarwal.
21. Hence, the defendant has been unable to succeed in raising any doubt over the C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 10 of 13 invoices Ex.PW1/15 to Ex.PW1/19 since no evidence has been brought on record to doubt the correctness of those entries. Therefore, the invoices Ex.PW1/15 to Ex.PW1/19 coupled with the testimony of PW1 Sh. Prem Shankar Mishra and PW 2 Sh. Laxman Prasad Aggarwal appear to prove the case of the plaintiff. However, out of the said invoices, only invoices dated 31.03.2007 and 30.04.2007 Ex.PW1/18 and Ex.PW1/19 are raised towards charges for housekeeping services at Noida. The other three invoices dated 30.12.2006, 31.01.2007 and 28.02.2007 Ex.PW1/15 to Ex.PW1/17 do not mention the site of the defendant and they have been raised against defendant's office at Tolstoy Marg, New Delhi. Hence, the plaintiff is unable to prove that the invoices Ex.PW1/15 to Ex.PW1/17 were raised for services provided at the office of the defendant at Noida. It has only been able to prove its claim for the amount raised through the two invoices dated 31.03.2007 and 30.04.2007 Ex.PW1/18 and Ex.PW1/19, which is of Rs.60,884/ (Rs.30,442/ each). For the amount of the invoices Ex.PW1/15 to Ex.PW1/17, the plaintiff has already stated in its plaint that the defendant had cleared all the payments for the services provided at their office at Connaught Place. Since the invoices Ex.PW1/15 to Ex.PW1/17 have not been proved to be raised for services provided by plaintiff at Noida office of the defendant, the plaintiff is not entitled for the sum raised through the said invoices. Hence, the plaintiff is entitled to the amount of Rs.60,884/ and not Rs.1,52,242/. The Issue No.1 is decided accordingly.
Issue No.2 - Whether the plaintiff provided services at the Noida office of the defendant company?
22. The onus to prove or disprove this issue is on both the parties. The invoices dated C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 11 of 13 31.03.2007 and 30.04.2007 raised by the plaintiff Ex. PW 1/18 and Ex. PW 1/19 have already been proved by the plaintiff, as can be seen from the findings of this Court while deciding Issue no.1. The said invoices refer to the charges for housekeeping services provided at the Noida office of the defendant company. Hence, the said invoices coupled with the testimony of PW 1 Sh. Prem Shankar Mishra, by themselves, prove that the plaintiff had provided the housekeeping services at the Noida office of the defendant. Moreover, the telephone (fax) no.01204255089, as provided by the plaintiff, has been confirmed by PW3 Sh. Deepak Kanda, Nodal Officer of Bharti Airtel Ltd. who has deposed that the said number belongs to Indo Rama Retail Holdings Pvt. Ltd., which is the defendant. He also produced the relevant record of the said telephone no.01204255089 Ex.PW3/A which shows the installation as well as the billing address of the said number to be J - 21, Sector 18, Noida, UP - 201301. Though the said fax number has been relied by the plaintiff through marked documents i.e. Mark J and K, even otherwise the plaintiff has discharged its onus to prove this issue by proving the invoices Ex.PW1/18 and Ex.PW1/19. Hence, Issue no.2 is decided in favour of the plaintiff and against the defendant. Issue No.3 Whether the plaintiff is entitled to pendentelite and future interest? If so, at what rate and for which period?
23. In view of the findings of this court in the Issue no.1 that the plaintiff is entitled to Rs. 60,884/ and also that the nature of transaction is commercial in nature, the plaintiff is entitled to the pendentelite and future interest @ 10% per annum. C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 12 of 13 Issue no. 4 - Relief.
24. In view of the findings of this court in Issues no.1, 2 and 3 the plaintiff is entitled to a decree of Rs.60,884/ against the defendant along with pendentelite and future interest @ 10% per annum alongwith proportionate costs. The suit is decreed in the above terms. Decree sheet be prepared. File be consigned to the Record Room.
Announced in the Open Court (Apoorv Sarvaria)
on 7 September 2012.
th
Civil JudgeI, New Delhi District
New Delhi
C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 13 of 13 IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, DELHI Presided by : Mr Apoorv Sarvaria, DJS CS No.63/10 07.09.2012 At 4 PM.
Present: None.
By way of separate judgment the present suit has been partially decreed. Decreesheet be prepared. File be consigned to the Record Room.
(Apoorv Sarvaria) Civil JudgeI, New Delhi/07.09.2012 C.S. No. 63/10 Lion Services Ltd. v Indo Rama Retail Holdings Pvt. Ltd. Page No. 14 of 13