Delhi District Court
M/S Planet Advertising Pvt. Ltd vs M/S Ocus Skyscrapers Realty Ltd on 25 September, 2019
IN THE COURT OF MS. PRIYA MAHENDRA, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 6624/16
M/s Planet Advertising Pvt. Ltd.
Having its Registered office at:-
G-11, 2nd Floor, Hauz Khas,
New Delhi-110016. ..........Plaintiff
Versus
M/s Ocus Skyscrapers Realty Ltd.
Registered office at:-
S-33, Green Park Main,
New Delhi-110016.
Also at:-
Ocus Technopolis Tower
DLF Golf Course Road,
Suncity, Sector-54,
Gurgaon,
Haryana-122 001. ..........Defendant
Date of institution of the suit :07.05.2014
Date reserved for judgment :21.09.2019
Date of pronouncement of judgment :25.09.2019
Suit for Recovery of Rs. 17,07,830/-
JUDGMENT
1. The brief factual matrix of the case as stated in the plaint is that the C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 1/27 plaintiff is a private limited company duly incorporated under the provisions of Indian Companies Act, 1956. Mr. Sudhir Haryal is one of the Directors of the plaintiff company and is fully entitled to sign, verify and file the present suit against the defendant being the Director/Principal Officer of the plaintiff company. Even otherwise also Sh. Sudhir Haryal has been duly authorized by the plaintiff company by virtue of Board Resolution dated 08.04.2014, so executed by the plaintiff company in its favour. As such, the present suit has been signed, verified and filed by Sh. Sudhir Haryal.
1.1. It is further stated that the plaintiff is engaged in the business of providing services relating to the display of advertisements of products of various big companies and is one of the pioneer in the said business and enjoys very high reputation and commitment. One Mr. Sanjay Puri of M/s Media Koncept got the plaintiff introduced to the defendant in September, 2012 for displaying outdoor advertisements. It is further stated that the defendant has placed various purchase orders to the plaintiff for the display of defendant's advertisement at various sites of plaintiff, to which, the plaintiff has executed the work as per the satisfaction of the defendant and accordingly raised bills against which, the defendant has been making payments regularly. It is further submitted C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 2/27 that in the month of January 2013, the defendant extended the period for displaying outdoor advertisements at various sites at the agreed rates as the defendant was satisfied regarding the services provided by the plaintiff. Accordingly, the plaintiff displayed the outdoor advertisement of defendant for a period ranging from January 2013 till May 2013 respectively as per the instructions of the defendant, but on 04.05.2013, the campaign was abruptly cancelled by the defendant without any prior information to the plaintiff, due to which, the plaintiff suffered huge losses.
1.2 It is further submitted that the plaintiff raised invoices in terms of the purchase orders, for which, the defendant made payments against some of the invoices. However, the defendant has not made payments against three invoices summing to a total amount of Rs. 13,91,902/- and details of the same are given below:-
S.N. Bill No. B-Date Net. Amt.
1 482 11.02.2013 7,05,000/-
2 17 30.04.2013 5,27,774/-
3 42 30.04.2013 1,59,178/-
Total 13,91,902/-
1.3 It is further submitted that for the payment of the outstanding bill
amounts, the plaintiff did a regular follow up with the defendant for a C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 3/27 long time but instead of making any payment to the plaintiff, the defendant kept on delaying the matter on some pretext or the other. That to the shock of the plaintiff, the defendant vide its e-mail dated 20.01.2014 showed its inclination to pay a sum of Rs. 10,70,000/- only subject to certain conditions. That the plaintiff immediately gave its reply vide e-mail dated 27.01.2014 and informed the defendant about the falsity of allegations made in defendant's e-mail dated 20.01.2014 and further called upon the defendant to pay the entire outstanding of Rs. 17,07,830.62 alongwith interest. Details for the accrued interest is given below:-
S. Display Bill Bill Period Display Bill No. of End Interest @ No. Name No. Date Amount Days campa 24% per Over- ign annum till due date Feb-14 1 Ocus 482 11.2.13 15.1.13 Ocus 7,05,000 389 5.2.13 1,80,325.48 Skyscrapers to 4.2.13.
2 Ocus 17 30.4.13 15.04.13 Ocus 5,27,774 300 5.5.13 1,04,098.98
Skyscrapers to 4.5.13
3 Ocus 42 30.4.13 21.04.13 Ocus 1,59,178 301 4.5.13 31,504.16
Skyscrapers to 3.5.13
Total 13,91,902 3,15,928.62
1.4 It is further submitted that the defendant has raised an absolutely
false and frivolous issue for not making the payment, which is apparently clear from the e-mail exchanged between the parties prior to raising of the said frivolous disputes. The plaintiff categorically kept on asking for its outstanding payment vide e-mail dated 16.10.2013 followed by e-mails C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 4/27 dated 08.11.2013; 12.11.2013; 04.12.2013; 06.12.2013; 09.12.2013; 12.12.2013 and 03.01.2014 and the defendant never disputed the same till its e-mail dated 20.01.2014. Vide e-mail dated 20.01.2014, the defendant started raising the extraneous issues with twisted facts so as to delay the payments of the plaintiff.
1.5 It is further submitted that the plaintiff vide its e-mail dated 27.01.2014 immediately brought it to the notice of the defendant that the plaintiff never promised to provide free of cost hoardings for Rs.
10,75,000/- as started demanding by the defendant nor the plaintiff took the responsibility to carry out any repair of the site, which was not raised/handled by the plaintiff. It was made clear that the plaintiff company was never involved in the site work like Fencing and OOH in Sector-99, Dwarka and no work of Fencing and OOH at Sector-99 was ever executed by the plaintiff. In fact, no approval, no purchase order, no bill has ever been exchanged or executed between the plaintiff and the defendant in relation to any such work. It was further made clear that in the last meeting held with Mr. Prakash Mehta on 16.12.2012, wherein, payment issues were being discussed, Mr. Shammi Kapoor raised the issue of repair of structure alleged to be erected by the plaintiff company at Sector-99, Dwarka and the same took the plaintiff by surprise and the C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 5/27 plaintiff then and there denied that no repair work has been done by the plaintiff company. Mr. Shammi Kapoor then informed the plaintiff in the said meeting that the said work was given to Mr. Sanjay Puri of Media Concept and claimed that Mr. Sanjay Puri is part of the plaintiff's company. Mr. Sudhir Haryal immediately called Mr. Sanjay Puri on his mobile and asked him in front of Mr. Prakash Mehta and Mr. Shammi Kapoor about the issue of structure repaired by him in Sector-99, Dwarka, Mr. Sanjay Puri made it clear that the plaintiff has nothing to do with the repair of any such structure. Thereafter, Mr. Prakash Mehta requested Mr. Sudhir Haryal to do him a favour by having the said structure at Sector-99, Dwarka repaired and further promised that the entire outstanding payment would be released by Diwali. That to close the issue amicably in good taste, Mr. Suhir Haryal of the plaintiff company offered to provide FOC site for few days after Diwali of NH-8 with a view to settle the issue amicably, subject to the entire outstanding payment being released immediately before Diwali. However, the defendant with malafide intentions backed out from its promise and did not make the payment before Diwali, which is apparent from the above said e-mails so sent by the plaintiff with no denial on the part of the defendant. Thereafter, again a meeting was held between Mr. Sudhir Haryal of the palintiff company with Mr. Shammi Kapoor alongwith Mr. C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 6/27 Sanjay Puri of Media Concept of 28.11.2013, wherein, it was admitted by Mr. Shammi Kapoor that the initial repair work done by Mr. Sanjay Puri was not damaged and the repair work done by us in good faith was not the part of work given to Media Concept and was installed by third party which initially erected the structure. Despite that, the plaintiff did not claim the expenses, which were more than Rs. 75,000/-, so incurred by the plaintiff company in repairing the structure at Sector-99, Dwarka of the defendant company. The plaintiff brought it to the notice of the defendant that the plaintiff never committed to give FOC worth value of final billing since the outstanding was Rs. 13,91,902/- and there was no question fi final billing. The above facts celarly shows that the defendant has started making absolute false and frivolous allegations with a view to delay the outstanding payments of the plaintiff company with malafide intentions.
1.6 Since the defendant failed to pay the above said outstanding amount to the plaintiff, the plaintiff was constrained to issue a legal notice dated 18.02.2014 under Section 433 (e) and 434 of the Companies Act, 1956, thereby, calling upon the defendant to pay an outstanding amount alongwith interest and in any event, the defendant was called upon to pay the admitted amount of Rs. 10,70,000/- alongwith interest @ 24% per C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 7/27 annum. However, instead of complying the said notice, the defendant preferred to send a reply dated 05.03.2014, stating absolutely false and frivolous facts therein with a view to delay its liability to make the above said payments.
1.7 Since the defendant has failed to pay the outstanding amount of Rs. 17,07,830.62 till date, the plaintiff has left with no other alternative but to file the present suit.
2. Written statement was filed on behalf of defendant wherein the defendant disputed and denied the contents of plaint. It is stated in the Written Statement that the suit has been filed for the recovery of the payments of the bills amount whereas the plaintiff had admittedly not provided any site/service as billed to the defendant as such the defendant is not liable to any amount to the plaintiff against the alleged bills. Further, the plaintiff undertook to repair the project site boarding of the defendant but cause more damage to the same as such is liable to refund a sum of Rs. 1,20,000/- to the defendant.
2.1 It is submitted that the alleged bills were already agreed to be non- est, void and a fresh settlement on 16.10.2013 was arrived at between the parties. Pursuant to the settlement, both the parties acted there upon as C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 8/27 well, in as much as, the defendant provided creative CD of the boarding to be put up by the plaintiff and the plaintiff also sent its men to repair the Sector 99 site hoarding of the defendant. The work done by the plaintiff to repair the site hoarding caused more damage to the site. The plaintiff has deliberately concealed these material facts from this Court. 2.2 It is further submitted that the brief facts of the case are that the defendant was approached by representatives of plaintiff company, namely, Sanjay and Akhansha in September, 2012 with promises that plaintiff would provide the defendant the best OOH media available in the market (Delhi and Gurgaon territory), at the most competitive rates. The defendant wanted to launch its product Ocus Medley with a bang. The plaintiff taking advantage of the need of the defendant induced, and persuaded the defendant to give its entire out door and hoarding advertising business for Delhi and Gurgaon territory to the plaintiff. Having induced by the tall promises, the defendant completely and blindly agreed to the terms proposed by the plaintiff and the rates that were offered. Since the media placement was covering a large area as such it was not possible for the defendant to check and monitor each and every site and hoarding. As such, the defendant was completely dependent upon the information provided by the plaintiff. C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 9/27 2.3 Over the period of time, the defendant had made payments of Rs.80 lacs (approx.) to the plaintiff for the OOH option provided and the bills of the plaintiff were processed promptly by the defendant without even verifying the same. Practically it was not possible for the defendant to verify each and every hoarding site on daily basis to see if it is placed or is in working / good condition. As per the understanding the defendant was provided various sites on monthly rental basis with the promise that the hoarding would be placed and maintained by the plaintiff for the entire period of time and against the same, the plaintiff would charge rental/services charge. As such it was the duty of the plaintiff ensure that the sites that were provided to the defendant, were having the hoarding of the defendant, they are well maintained, functional and are intact for the entire period of time and in case of any wear and tear it was the duty of the plaintiff to replace the same promptly.
2.4 Despite this, the defendant faced issues multiple times in its tenure with the plaintiff including many a times, the representative of the defendant noticed that on sites, lights were not working, flex was torn but not informed to the defendant, site being removed without prior notice from promised location, free of cost hoardings against the each paid location hoarding as promised were not provided despite repeated C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 10/27 reminders.
2.5 The defendant under the mistaken belief continued its tenure with plaintiff company till almost March 2013. It was only when the defendant found out that a hoarding in Naraina allegedly placed for the defendant by the plaintiff missing and yet the plaintiff has been charging for it, everything was changed. The defendant was aware of this transgression for a good two weeks, but wanted to see for itself whether it would be informed by the plaintiff, but no such information was provided to the defendant. However, when the defendant confronted this fact to the representatives of the plaintiff, then they casually admitted that the site had come down a few days back. This fact shook the foundation of relationship and trust upon the plaintiff that the defendant used to depose and made the defendant doubt every single hoarding that the defendant had ever taken from the plaintiff. A simple verification by the representative of the defendant company proved that the plaintiff was not diligent enough to maintain the sites and at some sites even the hoardings were not put up at all but still the bills were raised by the plaintiff and the money was claimed for those sites as well. The problems noticed by the defendant were that at few sites lights were not working flex were torn but no information was given to the defendants, the sites being removed C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 11/27 from the selected locations without any notice or information to the defendant, a few sites were promised as free of cost in lieu of huge business of the defendant but same were never provided. Even despite reminders, the problems were not fixed and only false promises were extended to the defendant.
2.6 It was only then that in April-May 2013, the defendant immediately cancelled every option for which the plaintiff was billing the defendant, and internally blacklisted the plaintiff company.
2.7 It is surprising that the plaintiff claimed to have provided the defendant media free of charge whereas the sites for which the money was charged from the defendant was not even put up, dysfunctional, torn and not managed at all. The defendant trusted the plaintiff and its representatives including Mr. Sanjay Puri but found all promises made were hollow and false.
2.8 To resolve to the issue even a meeting dated 16.10.2013 was held between the parties. In the meeting it was specifically and categorically agreed that plaintiff would about Rs.10,70,000/- and also promised to repair defendant's project site on Dwarka Expressway, Sector-99, Gurugram, Haryana. Despite regular follow ups by defendant, and even C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 12/27 admitted by the plaintiff in its own e-mail dated 12.11.2013, the plaintiff did not show any real interest in putting up the hoardings at NH-8 and MG Road. The defendant had been requesting for the site options but same had not been given to the defendant despite having supplied the creative CD.
2.9 As far as repair of the site hoarding is concerned, the plaintiff half- heartedly send some persons to repair the project site which was done in most callous and shabby manner and it was destroyed within two days of fixing it and had caused in resulted damage to the project site hoarding. Even third party inspection proved that the work was absolutely sub- standard.
2.10 In the meeting on 16.10.2013, it was agreed that nothing is payable against the bill because of the misdeed, breach of trust misrepresentation and over-billing as done by plaintiff. However, just to conclude the matter, it was mutually decided to settle the matter fully and finally for a total sum of Rs.10,70,000/- subject to the condition that the plaintiff shall put up two hoardings for defendant at MG Road and NH-8 and also shall repair the defendant's project site hoarding to the defenant's entire satisfaction within a period of 10 days i.e. around Diwali. As agreed the payment was to be released to the plaintiff after the project site had been C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 13/27 repaired and the expiry of the hoarding period. However, the plaintiff utterly failed to do the needful as such, thus as of today the defendant does not owe anything to the plaintiff. Rather the plaintiff in the name of its sister concern has received a sum of Rs.1,20,000/- towards the repaired of project site hoarding which had not been repaired properly and as such plaintiff is liable to pay back a sum Rs.1,20,000/- to the defendant which had been illegally charged and received money thereof. 2.11 Even then, despite all the differences, the defendant time and again gave opportunities to the plaintiff to resolve the matter, fully and finally, by repairing its project site hoarding and also by placing two hoardings at NH-8 and MG Road free of cost and after the satisfactory repair of the site hoarding and expiry of hoarding period, the defendant would make the payment of settlement amount of Rs.10,70,000/- to the plaintiff. 2.12 The defendant denies the three bills being raised by the plaintiff and submits that the bills are false.
2.13 It is submitted that the defendant had found out about the malafide intentions of the defendant in April 2013 itself and had confronted the plaintiff who admitted its mistake and that the defendant had been overcharged. There were lot of discussions that took place between the C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 14/27 parties. Finally on 16.10.2013, the meeting as detailed above took place. Thus, it is incorrect to say that no objections were raised by the defendant before October 2013.
3. In the Replication, the plaintiff has denied the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint. The plaintiff has stated that at the outset, plaintiff would like to bring out the clear admission by the defendant towards the payment due to the plaintiff, as admitted by the defendant in their e-mail dated 20.01.2014. This mail was received much after plaintiff's e-mail dated 16.10.2013 wherein the decisions arrived at between defendant and plaintiff in the meeting held on 16.10.2013 was confirmed by the plaintiff. The fact that contents of this mail was never controverted by the defendant is clear admission of the fact that the payments as indicated in the plaint were due to the plaintiff. The e-mail dated 20.01.2014 from the defendant to the plaintiff offering to pay Rs.10,70,000/- as a full and final payment instead of Rs.13,91,902/- against the settlement of dues proves that defendant got greedy after commitment to release the full and final payment before Diwali 2013. Nevertheless, the petitioner never accepted the offer on the ground that the payments for which the bills were preferred are genuine and already accepted by the defendant in the said C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 15/27 meeting.
3.1 The factual position is that the meeting was held on 16.10.2013 due to non-release of payment amounting to Rs.13,91,902/- (bill no.482 dated 11.02.2013 amounting to Rs.7,05,000/- for the display charges for the month of January and Bill no. 17 & 42 amounting to Rs.5,27,774/- & Rs.1,59,178/- respectively dated 30.04.2014 for the display charges for the month of April). In the meeting, it was decided that the complete outstanding of Rs. 13,91,902 will be cleared before Diwali 2013 and it was also agreed that the plaintiff would repair the structure, though installed by third parte and repaired by Media Concept ( Mr. Sanjay Puri) as a gesture of goodwill only that otherwise, not being the responsibility of the plaintiff. Further, considering that plaintiff will be released the payments before the Diwali and also to amicably settle the deal, it was additionally agreed to provide two sites free of cost for a few days. 3.2 The above decisions were confirmed through an e-mail sent to Mr. Akshay Walia, Manager and Mr. Mehta, MD of the company on 16.10.2013 which was never refuted by the defendant. This arrangement/ offer was accepted by the plaintiff simply to close the chapter once for all as Mr. Mehta & Mr. Akshay were not easily available for the meetings and release of payments were being delayed, and that was long over due C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 16/27 since five months and plaintiff was in dire need of money. But to the dismay of plaintiff, a mail dated 20.01.2014 and 08.02.2014 was received by stating that only Rs.10,70,000/- will be released by the defendant that too only if two hoardings are displayed and repair of site hoarding is done again within 10 days. The trust of plaintiff was broken by the defendant as they became greedy and offered Rs.10,70,000/- as a full and final settlement but again with unwarranted rider of displaying two hoarding and repairing the site structure again. It is pertinent to mention that while the payment for the month of February, March and April were released but the payment for January was withheld, stated to be because of oversight, inadvertently and plaintiff was insured that the same would be released at the earliest.
3.3 Again a mail dated 12.11.2013 was sent to all the concerned persons including Mr. Mehta, MD of the company stating that commitment of releasing the payment has been failed inspite of rectifying the structure at your site. Again, a meeting was held on 04.12.2013 to sort out the issues regarding the repair of the structure and plaintiff had a meeting alongwith Mr. Sanjay of Media Concept and Mr. Shammi Kapoor of Ocus Group where the matter of repair of structure was discussed and was closed between them. Hence, to raise the issue of C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 17/27 repair of structure is not justified. This was never refuted by the defendant.
4. From the pleadings of the parties, the following issues were framed on 19.08.2014.
ISSUES
1. Whether the plaintiff is entitled for the decree of suit amount alongwith interest as prayed for?
2. Relief.
5. In support of his evidence, the plaintiff examined one witness. 5.1. Plaintiff examined himself as PW-1. PW-1, Sh. Sudhir Haryal tendered his evidence by way of affidavit Ex.PW1/X and reiterated and reaffirmed the contents of the plaint in his affidavit. He has relied upon following documents:
1. The Copy of Incorporation Certificate is Ex. PW-1/1 (OSR).
2. The True Copy of Board Resolution dated 08.04.2014 is Ex. PW-
1/2 (OSR).
3. The Copy of Work Order dated 12.10.2012 is Ex. PW-1/3.
4. The original Work Order dated 16.10.2012 and 26.10.2012 are Ex.
PW-1/4 & Ex. PW-1/5.
5. The Office copies of the Invoice Bill No. 482 dated 11.01.2013, Invoice Bill No.17 dated 30.04.2013 and Invoice Bill no. 42 dated C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 18/27 30.04.2013 are Ex. PW-1/6, Ex. PW-1/7 & Ex. PW-1/8.
6. Various E-mails exchanged between the parties from September 2012 till February 2014 are Ex. PW-1/9 (colly).
7. Office Copy of the Legal Notice dated 18.02.2014 is Ex. PW-1/10.
8. Original Postal Receipts and Tracking Reports are Ex. PW-1/11 (colly).
9. Original Reply dated 05.03.2014 is Ex. PW-1/12.
5.2. Plaintiff examined another witness as PW-2. PW-2, Ms. Akansha Gupta tendered his evidence by way of affidavit Ex.PW2/A and reiterated and reaffirmed the contents of the plaint in his affidavit. 5.3 No other PW was examined and PE was closed vide order dated 14.07.2016.
6. In its defence, the defendant company examined only one witness. 6.1 DW-1, Sh. Shammi Kapoor tendered his evidence by way of affidavit Ex.DW1/1 and reiterated and reaffirmed the contents of the plaint in his Written Statement. He has relied upon following documents:
1. The Authority Letter dated 05.09.2016 as Ex. DW1/A.
2. The Written Statement as Ex. DW1/B. 6.2 No other DW was examined and DE was closed vide order dated 28.03.2019.
C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 19/27
7. Detailed final arguments heard.
8. I have carefully considered the arguments advanced and perused the record. My findings on the issues are as follows:
ISSUE No.1: Whether the plaintiff is entitled for the decree of suit amount alongwith interest as prayed for?
9. It is the case of the plaintiff that after issuance of Purchase Orders by the defendant to the plaintiff, the plaintiff displayed the advertisement of the defendant at the various sites of the plaintiff and raised the bills after executing the work as per the satisfaction of the defendant. In January 2014, satisfied with the services provided by the plaintiff, defendant extended the period of displaying outdoor advertisement at various sites at agreed rates. The defendant has not made payment against the three invoices Ex. PW1/6 to Ex. PW1/8 totally amounting to Rs. 13,51,902/-. It is further case of the plaintiff that in order to resolve the issue of payment, the parties held a meeting on 16.10.2013 in which it was agreed that the defendant will clear the entire amount of Rs. 13,51,902/- before Diwali and as a goodwill gesture, plaintiff will provide free FOC site at NH-8, Delhi for a few days and will also repair the projects site at Dwarka Express Way, Sector-99, Gurgaon which is C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 20/27 provided by the another client. This understanding was subject to the condition that entire outstanding payment of Rs. 13,51,902/- will be released by the defendant before Diwali. The plaintiff ended up incurring expenses of more than Rs. 75,000/- in repair of hoarding of the defendant company affixed at Sector-99, Dwarka. The defendant retracted from the arrangement agreed between the parties in the meeting on 16.10.2013 and delayed releasing of outstanding amount of Rs. 13,51,902/- on one pretext or the other. Vide e-mail dated 20.01.2014, the defendant retracted from agreement and offered to pay only a sum of Rs. 10,70,000/- only subject to the certain conditions.
9.1 In the Written Statement, the defendant has disputed and denied the contents of the plaint. At the outset, it is to be noted that the defendant has not taken consistent stand in the Written Statement. On one hand, defendant has contended that hoarding site for which three bills in question Ex. PW1/6 to Ex. PW1/8 amounting to Rs. 13,51,902/- has been raised by the plaintiff, were not affixed and as such the defendant is not liable to pay any amount to the plaintiff against the said bills. On the other hand, the defendant has contended in the Written Statement that there were deficiencies in the services rendered by the plaintiff and the services were not improved despite repeated reminders and it was found C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 21/27 that the plaintiff was over-biliing the defendant. The defendant was charged by the plaintiff even for hoarding at Naraina which was not affixed at the site. It is further stated in the Written Statement that in the meeting dated 16.10.2013, fresh settlement was arrived at between the parties whereby the alleged bills were agreed to be non-est/void. It was further agreed that the plaintiff shall provide two hoardings at NH-8 and M.G. Road, Delhi free of cost and shall also repair its project site hoarding at Sector-99, Dwarka and only after the satisfactory repair of Sector-99 site hoarding and expiry of hoarding period of other two sites, defendant would make payment of settlement amount of Rs. 10,70,000/- to the plaintiff.
9.2 DW-1, in the cross-examination, has deposed that the only site for which invoices were raised and hoarding was not affixed, was Narayana site. He also admitted that the plaintiff had raised bill for Narayana site but the same was not paid by the defendant. Importantly, the invoices in question Ex. PW1/6 to Ex. PW1/8 are not regarding Narayana site. The witness was quite evasive when he was specifically asked whether hoardings at site mentioned in Ex. PW1/6 to Ex. PW1/8 were affixed. Later in his testimony, he also stated that the dispute between the plaintiff and the defendant qua invoices Ex. PW1/6 to Ex. PW1/8 was only that C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 22/27 hoarding mentioned in the said invoices were not well lit and many times hoarding mentioned in Ex. PW1/6 to Ex. PW1/8 were torn. The testimony of DW-1 demolishes the claim of the defendant made in the Written Statement that hoarding/site which were subject matter of Ex. PW1/6 to Ex. PW1/8 were not affixed and the bills/invoices Ex. PW1/6 to Ex.PW1/8 are false and fabricated. The defendant has not proved on record any reasons for not releasing the payment of Invoices Ex. PW1/6 to Ex. PW1/8 once DW-1 has admitted affixing of hoardings, which was subject matter of the Invoices Ex. PW1/6 to Ex. PW1/8.
9.3 Both the parties have admitted that meetings between the parties took place on 16.10.2013. However, the parties have given different version of agreement reached between the parties in the said meeting on 16.10.2013. Pertinently, the plaintiff sent e-mail Ex. DW1/PX1 to the defendant on the very same date i.e 16.10.2013 whereby the plaintiff has stated that it was agreed in the meeting that the defendant shall release outstanding amount of Rs. 13,51,902/- shortly in respect of the bills Ex. PW1/6 to Ex. PW1/8. Further, plaintiff will provide FOC media after Diwali and will repair the site done by Sh. Sanjay (Media Koncept) at Sector-99. The defendant has not proved on record that any reply was sent by the defendant to the aforesaid e-mail denying the contents of the C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 23/27 said e-mail Ex. DW1/PX1. Moreover, the plaintiff again sent e-mail dated 12.11.2013 Ex. DW1/PX2 to the defendant reiterating that in the meeting on 16.10.2013, it was agreed that the defendant will pay the complete outstanding amount of Rs. 13,51,902/- before Diwali. The plaintiff also stated that despite pursuing the matter regularly, payment has not been released by the defendant. Further, the plaintiff has already carried out repair work at the site done by Sh. Sanjay of Media Koncept at Sector-99 and requested the defendant to send Creative for FOC site at NH-8. The said e-mail was replied by the defendant on 18.11.2013 vide Ex. DW1/PX3. Most importantly, in the e-mail Ex. DW1/PX3, the defendant has not at all denied the contents of the e-mail Ex. DW1/PX2 and simply stated that the defendant is not satisfied with the repair work carried out by the plaintiff at Sector-99, Dwarka site and also stated that Creative for NH-8 will be soon furnished to the plaintiff. The defendant has not at all stated that the amount agreed to be released to the plaintiff was Rs. 10,70,000/- and not Rs. 13,51,902/-. The defendant has also not taken any stand that the amount agreed is not released to the plaintiff because the plaintiff has not complied with the pre-condition of providing free sites and hoarding period for the site is not over. No explanation at all has given in the pleadings or evidence of the defendant for not challenging the version of the plaintiff of the meeting held on 16.10.2013 C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 24/27 at the earliest opportunity. The plaintiff thereafter sent another e-mail to the defendant dated 04.12.2013 Ex. DW1/PX4 wherein the plaintiff again requested for release of outstanding amount of Rs. 13,51,902/- as per the meeting held on 16.10.2013. The plaintiff has also complained of raising a new issue by the defendant and opposed any further deduction. The plaintiff again reiterated that it has already carried out the repair at the site at Sector-99, Dwarka and ready to install the hoarding at NH-8 site as the Creative for NH-8 has been received. The defendant only on 20.01.2014 shot an e-mail to the plaintiff whereby for the first time, the defendant contended that the defendant only agreed to release the payment of Rs. 10,70,000/- subject to the condition of full repair of hoarding at Sector-99, Dwarka and FOC worth the value of the final billing amount. The said e-mail was replied to by the plaintiff expeditiously and plaintiff sent an e-mail dated 27.11.2014 to the defendant.
9.4 Thus, the defendant took the plea of agreeing to release Rs. 10,70,000/- to the plaintiff that too after completion of period of hoarding at two FOC sites and repair of one FOC site for the first time in the e-mail dated 20.01.2014. The defendant has not furnished any cogent reason for not assailing or controverting the contents of e-mail of the plaintiff sent C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 25/27 on 16.10.2013 and 12.11.2013 wherein the plaintiff specifically stated that the amount agreed to be released in the meeting of 16.10.2013 was Rs. 13,51,902/- which was to be released before Diwali and thereafter the plaintiff has to provide two FOC and repair of one site. The omission to controvert the version of the plaintiff of the meeting held on 16.10.2013 at the earliest opportunity despite communications by plaintiff makes the defence of defendant improbable and not believable. The DW-1 admitted that Sector 99, Gurgaon Site was not affixed by the plaintiff and same was affixed by some other vendor. The case of the plaintiff cannot be disbelieved only because the plaintiff carried out repair of Sector-99 site before releasing of payment by the defendant. The issue whether the plaintiff agreed to provide two FOC sites or one FOC site during meeting on 16.10.2013 loose significance once the defendant failed to release the amount of Rs. 13,51,902/- and retracted from settlement on 20.01.2014 after supplying Creative for FOC site of NH-8, Gurgaon belatedly. Civil Case is decided in preponderance of probabilities and balance of scale. On appreciation and consideration of the entire evidence on record, the plaintiff has been able to prove its case on preponderance of probabilities. So, this issue is decided in favour of the plaintiff and against the defendant.
C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 26/27 RELIEF
10. The suit of the plaintiff is decreed in the sum of Rs. 13,51,902/- alongwith interest @ 10% per annum on Rs.13,51,902/- from October, 2013 till realization of the decretal amount.
11. Cost of the suit is awarded in favour of the plaintiff.
12. Decree sheet be prepared accordingly.
13. File be consigned to the Record Room.
Announced in the open court. (PRIYA MAHENDRA)
Dated:25.09.2019 ADJ-04 (South)
Saket Courts/New Delhi
Digitally signed
by PRIYA
PRIYA MAHENDRA
MAHENDRA Date:
2019.09.26
17:15:47 +0530
C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 27/27 C.S. No. 6624/16 M/s Planet Advertising Pvt. Ltd. vs. M/s Ocus Skyscrapers Realty Ltd. 28/27