Delhi District Court
M/S Ark Infosolutions Private Limited vs Suvilas Properties Pvt Ltd on 27 February, 2025
THE COURT OF MS. NEHA PALIWAL SHARMA
DISTRICT JUDGE-03, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
CNR No. DLCT01-004990-2018
CS DJ No. 1313/2018
In the matter of :-
M/s. ARK Infosolutions Pvt. Ltd.
Through its
Authorized Representative
F-28, Okhla Phase-1,
New Delhi-110020
.....Plaintiff
VERSUS
Suvilas Properties Pvt. Ltd.
Through its Director
#100 (Old 52), Donnabas Tower,
Ground Floor, Railway Parallel Road,
Kumara Park West,
Bangalore-560020
.....Defendant
Date of initial institution : 19.07.2016
Date of institution before this Court
after return of plaint : 11.04.2018
Reserved for Judgment : 24.02.2025
Date of decision : 27.02.2025
SUIT FOR RECOVERY
JUDGMENT:
(1) This is a suit for recovery of Rs.51,87,000/- (Rupees Fifty One Lakhs, Eighty Seven Thousand only) alongwith pendente-lite and future CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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interest, filed by the plaintiff against the defendant.
(2) Succinctly put, the case of the plaintiff, as per the plaint, is that it is a company incorporated under the Companies Act, 1956 having its registered office at the above address and Sh. Pawan Mahur, Manager of the plaintiff company is the duly authorized representative of the plaintiff, vide its board resolution dated 02.05.2016. The plaintiff entered into an agreement dated 25.10.2012 with a Singapore based company, namely, Autodesk and as per the said agreement, Autodesk was to provide services, that is, Architectural Designs/ BIM MODEL to the customers of the plaintiff. The plaintiff was solely responsible to contact the defendant for all purposes including raising of invoices and receiving payments, whereas the project/ service was to be delivered by Autodesk in consultation with the end customer, on behalf of the plaintiff. The defendant placed a purchase order dated 12.07.2013 with the plaintiff for BIM MODEL (Architectural Design) for their project, namely, Royal Gardenia. The plaintiff accordingly placed a task order dated 19.07.2013 authorizing Autodesk to prepare and deliver the same to the defendant and Autodesk was to deal with the defendant to understand the requirement, co-ordinate and deliver as per the need of the defendant.
(3) It is further the case of the plaintiff that as per the purchase order dated 12.07.2013, the entire project was divided in five different phases, viz., Task 1- BIM Orientation Training; Task 2 - BIM Model-LOD 300; Task 3 - BIM Model clash detection; Task 4 - Quantity take off and Task 5 - Construction sequencing. As per the terms and conditions of the purchase order/ agreement dated 12.07.2013 an advance payment of 10% of the entire project was to be paid by the defendant to the plaintiff, however, after many CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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reminders, the defendant paid advance payment of Rs.6,65,340/- to the plaintiff vide RTGS on 10.11.2014 in the bank account of the plaintiff. Thereafter the plaintiff commenced work on the project of the defendant and as per the agreed schedule of work, Autodesk sent repeated reminders to the defendant to finalize the date, time as well as list of participants for Task-1 of the project, that is, BIM Orientation Training, however, due to one reason or the other it was always postponed by the defendant. The plaintiff through Autodesk very explicitly informed the defendant that it had scheduled the resources for Task-1(Training) and postponing the same for a long time may have financial implications on it. Thereafter, it was requested by the defendant that Task-1 of the said project, that is, training may be given at a later stage of the project and they should move to the next stage/phase of the project. Accordingly the executive of the defendant company namely Arjun Shivshankar shared the drawings of the entire building/ project of the defendant with the Autodesk vide e-mails dated 07.01.2014, 08.01.2014, 20.03.2014, 03.06.2014, 30.06.2014, 26.12.2014 and many other e-mails, so that Task-2, Task-3, Task-4 and Task-5 may be processed by Autodesk and delivered to the defendant. All the said drawings shared by the defendant with Autodesk and all the BIM designs prepared by Autodesk and delivered to the defendant, were done on a common URL namely BUZZSAW and the said URL was commonly used by the defendant as well as Autodesk for exchange of designs and drawings. This was the platform/URL on which Autodesk uploaded/ delivered the design for all the phases/tasks, that is, Task-2, Task-3, Task-4 & Task-5 and the same were subsequently downloaded/ received by the defendant. The defendant downloaded/received the BIM architectural designs from the said URL BUZZSAW and used the CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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same.
(4) It is further the case of the plaintiff that in accordance with the
drawings shared by the defendant and according to the requirement of the defendant, Autodesk designed/ prepared the BIM/design for the defendant and uploaded/delivered the same on BUZZSAW for Task-2, Task-3, Task-4 & Task-5. The said BIM/design consisted of all the stages (except for Task-1) and was downloaded/ used by the defendant through its executive Arjun Shivshankar on different dates. The logs on the URL BUZZSAW show the exact date and time with the exact particular of files (BIM designs) uploaded by Autodesk with the username and that the same were subsequently downloaded by the defendant with their user name. Thus, the plaintiff through Autodesk delivered the project except for Task-1 to the defendant as per the agreed terms and conditions and subsequently the plaintiff raised an invoice bearing no. 2721560004 dated 23.07.2015, which was couriered to the defendant on 25.07.2015, which was duly received by the defendant on 27.07.2015. However, the defendant after having received the software/ BIM/ designs as well as the invoice, deliberately remained silent about the payments. Repeated reminders of the plaintiff for the release of the payment of Rs.51,87,000/- yielded no result whatsoever. The plaintiff sent reminders through e-mails dated 06.08.2015, 13.08.2015, 19.08.2015, 24.08.2015 and on many other dates, however, the defendant did not respond to the said reminders at all.
(5) It is further the case of the plaintiff that it was only when the legal department of the plaintiff confronted the defendant with the copy of the invoice, the defendant acknowledged the existence of the agreement dated CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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12.07.2013 and responded to the plaintiff vide a frivolous mail dated 22.12.2015 whereby it alleged that the deliverables were not provided as per the contract and therefore, its management had decided to cancel the project and no further payments shall be made. It is the case of the plaintiff that at no previous occasion after having received/ downloaded the BIM MODEL for Task-2, Task-3, Task-4 & Task-5, the defendant ever raised any concern whatsoever regarding any deficiency in the said designs/ models. The defendant at no point of time even after having received the invoice dated 23.07.2015 raised any concern of whatsoever nature regarding the alleged deficiency in the BIM MODEL delivered to the defendant. It was at the request of the defendant that Autodesk kept Task-1 (Training), to be executed at the end of the project and had accordingly not raised invoice for that specific task. Autodesk had, after delivering Task-2, Task-3, Task-4 & Task-5, again requested the defendant to finalize the date, time and list of participants for the training, that is, Task-1 to which the defendant again had not responded.
(6) It is further the case of the plaintiff that after having received the BIM MODEL for its project Royal Gardenia and having utilized the same, the defendant deliberately kept silent about the payments and when the plaintiff kept insisting on the release of its outstanding amount of Rs.51,87,000/-vide repeated phone calls/emails etc., the defendant at a much belated stage, finally vide an e-mail dated 22.12.2015 for the first time in most malicious manner refused to pay the invoiced amount of the plaintiff on false and frivolous ground. The said e-mail dated 22.12.2015 of the defendant was accordingly responded by the plaintiff vide e-mail dated 25.01.2016.
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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Realizing the malafide intentions of the defendant, the plaintiff was constrained to send a legal notice dated 06.02.2016 through its Advocate to the defendant demanding the outstanding amount of Rs.51,87,000/- which was again frivolously replied by the defendant vide reply dated 22.02.2016.
(7) It is, thus, the case of the plaintiff that despite repeated follow-ups by its officials and despite service of legal notice dated 06.02.2016, the defendant had deliberately not paid the due outstanding amount to the plaintiff after having obtained the services and thus, the plaintiff is legally and lawfully entitled to decree of recovery of a sum of Rs.51,87,000/- along with interest from the defendant.
(8) It is, thus, prayed by the plaintiff that a decree for recovery of a sum of Rs.51,87,000/- along with pendente-lite and future interest @ 16% per annum till its realization be passed in favour of the plaintiff and against the defendant and costs of the suit be also awarded in favour of the plaintiff and against the defendant.
(9) Summons for settlement of issues was issued to the defendant. Written statement was filed by the defendant to the plaint wherein the defendant had specifically denied each and every contention of the plaintiff. Preliminary objections were taken that the plaint is devoid of any cause of action against the defendant and this Court lacks territorial jurisdiction to try the suit as the plaintiff's office is located at Mumbai and the agreement was signed and executed at Bangalore. Only the copy of the agreement was sent to Delhi Office at 4428, Ganesh Bazar, Cloth Market, Delhi.
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
Page No. 6 of 27 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2025.02.27 16:25:49 +0530 (10) It is further the case of the defendant that they were approached by
the plaintiff in the month of May, 2013 with proposal to create a Building Information Modeling (BIM Technology) for the ongoing residential project of the defendant, namely, Royal Gardenia, which was the first project of the defendant company. Believing the assurances and false promises of the plaintiff that the said BIM technology will benefit the defendant company, agreement dated 12.07.2013 was signed by the defendant with the plaintiff, however, the plaintiff had not disclosed the details to the defendant that were required for implementation of BIM technology.
(11) It is further the case of the defendant that as per the purchase order and agreement both dated 12.07.2013, the project was to be delivered in six phases and the payment was to be made qua each phase as per the payment schedule specified in Clause 2.4 of the agreement. However, the plaintiff had not adhered to the agreement and had not performed its part of obligations as per the agreement and thus, the suit is liable to be dismissed. More so, the plaintiff despite assurance to provide an Onsite Project Coordinator had neither assigned nor posted any Onsite Project Coordinator for the said project and implementation of BIM Technology. As per the payment schedule provided in Clause 2.4 of the agreement, the initial 10% payment of the total amount was to be made on the signing of the contract between the parties, that is, on 12.07.2013, however, this payment was made to the plaintiff in the year 2014 and therefore, the plaintiff ought to have canceled the agreement as the defendant had not deposited or paid the 10% as per the agreement entered into between the parties.
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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(12) It is further averred that the plaintiff had miserably failed to provide
the exact deliverables as per the requirement of the defendant in their project 'Royal Gardenia'. The terms and conditions of the agreement are to be read in systematic and phase-wise manner but the plaintiff company had failed to provide the services availed by the defendant company as per the terms and conditions, which is a violation of the terms and conditions of the agreement. The plaintiff had to complete the task in phase wise manner and thereafter had to raise the bill / invoice after each phase but the plaintiff had failed to do so for the reasons best known to the plaintiff. The alleged bill/ invoice of Rs.51,87,000/- is the total amount of the whole project minus 10% paid as advance to the plaintiff company, whereas the plaintiff company had to raise the bill/ invoice as per the terms and agreement dated 12.07.2013 only.
(13) It is further the case of the defendant that the plaintiff could not have raised the bill of Rs.51,87,000/- at one go, as the payment schedule in Clause 2.4 of the agreement clearly states that the bill/ vouchers shall be raised in a phase wise manner. It shows that the plaintiff had not completed the work as per the agreed terms and had only raised the bill malafidely for unlawful gains. As per the agreement dated 12.07.2013 the defendant had to provide the plaintiff acceptance letter on successful completion of each phase of the project, however, no such acceptance letter was ever provided by the defendant to the plaintiff as the plaintiff had dejectedly failed to complete the work or the project for which the defendant had engaged the plaintiff and hence the suit is liable to be dismissed.
(14) In the reply on merits, in the written statement, the defendant besides specifically denying each and every contention of the plaintiff as CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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stated in the plaint, had denied its liability. It is contended that the plaintiff had not started the work project as per agreement. The defendant had paid the 10% of amount as agreed between the parties in the agreement but the delay in releasing the payment was on account of business procedure and policy, which required sanctions and approval for payment. It is the case of the defendant that the plaintiff should not have started work as the said payment of 10% towards signing of agreement was not paid on time and it was a vital part of agreement and should have canceled the agreement. The plaintiff never initiated Task-1 (Training) and themselves delayed the same on one pretext or the other for the reasons best known to them despite taking the advance payment of 10% of the total project. The said Task-1 (Training) was necessary to execute the BIM Technology. The defendant had even supplied the drawing of the entire building/ project of the defendant company namely 'Royal Gardenia' to the plaintiff vide emails, as per the demand and requirement of the plaintiff. The project was to be done at site and one project coordinator was to be assigned by the plaintiff at the site to provide technical assistance to the defendant company for implementation of BIM technology, which was not done and the deliverables were never delivered to the defendant by the plaintiff. The task could be treated as complete only when acceptance letter was provided by the defendant to the plaintiff qua each phase but as the plaintiff had not delivered as per the terms and conditions, it had failed to place on record the letter of acceptance provided by the defendant which shows that it had not completed the work as per the agreed terms and conditions.
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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(15) It is further the case of the defendant that the defendant had raised
its concerns with the plaintiff on various occasions but the plaintiff had turned a deaf ear to the same and finally vide e-mail dated 22.12.2015 the defendant informed the plaintiff that the deliverables were not as per the contract and as per the purchase order placed by the defendant and hence, the defendant having no other option, was compelled to cancel the project with the plaintiff. The plaintiff with an ill motive and intention and further with a motive of unlawful gain, had sent a legal demand notice dated 06.02.2016 to the defendant which was duly replied to by the defendant vide reply dated 22.02.2016. There is no outstanding amount due to the plaintiff by the defendant and in fact the plaintiff had to refund the amount paid towards the signing of the agreement as the plaintiff had deliberately failed to perform its part of obligation as per the contract / agreement and thus, the plaintiff had to refund a sum of Rs.6,65,340/- to the defendant along with interest from the date of receipt. Thus, it is prayed that the present suit be dismissed.
(16) Replication was filed by the plaintiff to the written statement of the defendant wherein the plaintiff reiterated the contents of its plaint and specifically denied each and every contention of the defendant. It was stated that this Court has territorial jurisdiction to try the present matter as the registered office of the plaintiff is located at Delhi, the purchase order was placed at Delhi, part payment was received by the plaintiff at Delhi in the bank account maintained by them through RTGS and even the invoices were raised at Delhi and dispatched from Delhi. Task-1 was not provided to the defendant due to the deficiencies of the defendant and onsite project coordinator was assigned to the defendant for the project. The agreement was CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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not canceled by the plaintiff as the defendant requested for more time to make initial payment. Further, the plaintiff instead of raising separate invoices had raised one single invoice as it has already delivered all the phases of the project except Task-1 to the defendant. The invoice was not raised for Task-1 as the same was not delivered to the defendant but the same was due to deficiencies on the part of the defendant. The plaintiff had fulfilled its part of obligation and had provided services accordingly. The acceptance letter was neither a precondition for the successful delivery of the project nor it was envisaged in the agreement. It was sought by the plaintiff out of abundant caution for the sake of confirmation and transparency but was maliciously withheld by the defendant. The plaintiff had asked the defendant to provide the same after completing and delivering the project and had also asked the defendant to schedule for Task-1 but the defendant evaded to provide acceptance letter and further sought more time for the training schedule. The defendant never raised any concern/ complaint with regard to the quality of the tasks/ project delivered to it and deliberately did not provide the acceptance letter even after completion of the phases of the project as it did not want to make payment. The defendant itself requested that the training be provided at a later stage and the plaintiff may proceed with the next task and therefore, the plaintiff postponed Task-1 for a later stage and commenced work for Task-2, Task-3, Task-4 and Task-5. The project progressed and was completed and delivered as per the instructions and with the consent of the defendant. The defendant had received the software and had utilized the same and thus, is now evading to make due payment. Thus, it is prayed that the suit be decreed.
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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(17) Perusal of the record reveals that initially the present suit was filed
on 19.07.2016 before the Ld. District Judge (South-East), Saket Courts, New Delhi. However, an application under Order VII Rule 10-A CPC was filed by the plaintiff seeking return of the plaint as the property was situated within the territorial jurisdiction of Central District, Delhi. Vide order dated 07.03.2018 the said application was allowed and the plaint was returned with directions to the parties to appear before the Ld. Principal District & Sessions Judge (HQs) on 12.04.2018 at 2:00PM. Thereafter the matter was assigned to this Court.
(18) An application was also moved by the defendant under Order VII Rule 11 CPC on the ground that this Court lacks territorial jurisdiction to try the present matter. However, the said application was dismissed vide order dated 04.12.2018.
(19) After perusal of the pleadings of both the parties, following issues were framed on 16.01.2020 by the learned Predecessor of this Court for trial, namely:-
1. Whether the suit of the plaintiff is barred by limitation? OPD
2. Whether the plaintiff is entitled to recovery of the amount of Rs.51,87,000/- along with pendente-lite and future interest? OPP
3. Relief.
(20) At the stage of plaintiff's evidence, the plaintiff company had examined its authorized representative, namely, Sh. Pawan Mahur as its sole witness as PW1. PW1 tendered his evidence by way of affidavit Ex.PW1/A and had deposed, in the affidavit, in consonance with the plaint. He had CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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further relied upon following documents in his evidence by way of affidavit:
1. Copy of board resolution, Ex.PW1/1.
2. Copy of sub contract agreement dated 25.10.2012 between Autodesk Asia Pte Ltd. and the plaintiff, Mark A (collectively, running into 6 pages).
3. Purchase order dated 12.07.2013 placed by the defendant, Ex.PW1/3 and the Task order dated 19.07.2013, Ex.PW1/4 (collectively, running into 14 pages).
4. Account statement of plaintiff's bank showing the advance payment made by the defendant through RTGS, Ex.PW1/5.
5. Chain of e-mail communications exchanged between the plaintiff through Autodesk and the defendant, Ex.PW1/6 (collectively, running into 61 pages).
6. The logs on URL BUZZSAW as proof of delivery of the BIM to the defendant by Autodesk accompanied by proof of receipt and usage of the same by the defendant, Ex.PW1/7 (collectively, running into 13 pages).
7. Invoice dated 23.07.2015, Ex.PW1/8.
8. Courier receipt as well as proof of delivery of the said invoice dated
23.07.2015 to the defendant, Ex.PW1/9 (collectively, running into 2 pages).
9. Office copy of the legal notice dated 06.02.2016 and the postal/ courier receipts, Ex.PW1/10 (collectively, running into 11 pages).
10. Reply dated 22.02.2016 sent by the defendant to the said legal notice of the plaintiff, Ex.PW1/11 (collectively running into 4 CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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pages).
11. Affidavit under Section 65-B of Indian Evidence Act, Ex.PW1/12 with respect to the above exhibited documents Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7.
(21) PW1 was duly cross-examined by the Ld. Counsel for the defendant at length. He, in his cross-examination, admitted that as per contract entered into between the parties, the service was to be delivered to the defendant in five phases/ stages and the payment was also to be made in a phased manner. Email communication dated 08.01.2014 and 07.09.2015 which are part of Ex.PW1/6 (colly, at page no. 48 & page 61 respectively of the plaintiff's documents) show that delay was on the part of the defendant with respect to the first phase of the project as per which training was to be provided. Sh. Arjun Shiva Shanker along with other people whose names were not recollected by the witness, had attended the Orientation Programme on behalf of the defendant and Sh. Dipankar Mondal had represented the plaintiff company in the Orientation Programme. The conduction of Orientation Programme is a matter of record. He deposed that he does not remember the date and place when and where the Orientation Programme was conducted and also does not remember if he had filed any document to show that the Orientation Progamme was conducted. PW1 was confronted with e-mail dated 07.07.2015 which was at page 84 of the defendant's documents and was asked that the defendant company had written the said e- mail to the plaintiff and had sought time for training. The witness denied that the said e-mail was sent to the plaintiff company and stated that the said e- mail was an internal e-mail of the defendant company and even in the said e-
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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mail the defendant had communicated with its own management that they need some time to find out by when they can take the training from the plaintiff company. The update and interim report was provided by the plaintiff company to the defendant company via e-mails and the said e-mails are on record. The defendant had duly downloaded the services delivered via BUZZSAW and had never raised any complaint with regard to the same.
(22) PW1 further deposed that they had generated and submitted the "Clash Detection Report" and had filed the same. He does not recall what was the time interval to generate and submit the "Clash Detection Report". He was unable to tell as to how many kinds of Clash Reports were to be submitted to the defendant company and had volunteered that they had delivered everything as per the scope of the agreement except the training, that is, the first phase which was supposed to be finalized by the defendant company and had even not raised invoice for training.
(23) PW1 further deposed that the plaintiff company had delivered all the services to the defendant company at one go, that is, for all the four phases which were duly downloaded by the defendant company and no questions/ queries were ever raised by the defendant company with regard to the services delivered and hence, there was a deemed acceptance by the defendant company in respect of all the four stages.
(24) PW1 admitted in his cross-examination that the plaintiff company did not provide the On-Site project coordinator to implement the BIM technology and deposed that the same was not provided since after having received the services through URL BUZZSAW, the defendant company never ever called the plaintiff company to send the on-site project coordinator. He CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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admitted that the payment was to be made on percentage basis as per stages in terms of Clause 2.4 of the agreement. He further admitted that the agreement was signed on 12.07.2013 and the payment of 10% was to be made at the time of signing of the agreement dated 19.07.2013. He, however, deposed that the defendant made 10% payment after repeated reminders and e-mail communications, on 10.11.2014.
(25) PW1 further deposed that the plaintiff company had raised bills/ invoices as per the payment plan and volunteered that since the project was delayed by the defendant, so all the stages were completed in a single month and accordingly the invoices were raised for all those stages collectively. The total cost of the project was Rs.65 lakhs approximately.
(26) Vide separate statement of authorized representative of the plaintiff company, the plaintiff's evidence was closed on 11.03.2024 and the matter was fixed for defendant's evidence.
(27) At the stage of defendant's evidence, the defendant had examined its Managing Director, namely, Sh. Sunil Chowdary as its sole witness as DW1. DW1 had tendered his evidence by way of affidavit Ex.DW1/A and had deposed, in the affidavit, in consonance with the written statement. He had further relied upon following documents in his evidence by way of affidavit:
1. Certified extract of board resolution, Ex.DW1/1.
2. Original task order bearing no. ARK/13-14/ADSK/AEC/1, Ex.DW1/2 ( collectively-running into 23 pages).
3. Proposal of service for BIM Implementation for "Royal Gardenia"
project of Suvilas Properties, Ex.DW1/3 ( collectively-running into CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.Page No. 16 of 27 Digitally signed by NEHA
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6 pages).
4. Purchase order dated 12.07.2013, Ex.DW1/4.
5. E-mail communications between the defendant and the plaintiff from 2013 to 2016, Ex.DW1/5 (collectively - running into 65 pages).
6. Copy of the payment made by the defendant, Ex.DW1/6.
7. Copy of detailed stage wise construction methodology, Ex.DW1/7 (collectively - running into seven pages).
8. Reply to the legal notice, Ex.DW1/8 (collectively - running into 4 pages).
9. Certificate under Section 65-B of Indian Evidence Act, Ex.DW1/9 (collectively - running into two pages).
(28) DW1 was duly cross-examined by the Ld. Counsel for the plaintiff at length. He admitted that purchase order dated 12.07.2013 (Ex.DW1/4) was placed by the defendant on the plaintiff at plaintiff's address situated at Ganesh Bazar, Delhi. He further admitted that the advance payment of Rs.6,65,340/- was made to the plaintiff vide document Ex.DW1/6 in the bank account of the plaintiff maintained at Chandni Chowk, Delhi. He deposed that no complaint was made/ lodged against the plaintiff for inducing the defendant company and cheating it for Rs.6,65,340/-. He denied the suggestion that there was no such condition of issuing an acceptance letter by the defendant to the plaintiff as a prerequisite for releasing the payments to the plaintiff. He deposed that he had not raised any complaint nor asked any question from the plaintiff when the plaintiff allegedly never initiated the CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.Page No. 17 of 27 Digitally signed by NEHA
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work after taking advance from the defendant company. He admitted that after Task-1, the next phase of the project was 'Drawings' and the said drawings were provided by the defendant to the plaintiff. He admitted that the alleged communications via which the defendant had insisted the plaintiff to complete Task-1, that is, training before proceeding to the next stage, that is, 'Drawings' is not on Court record, however, deposed that they had communicated the same to the plaintiff over phone calls and also during meetings.
(29) DW1 admitted that they had received the e-mail dated 07.09.2015 (from page 61 to 64 of plaintiff's documents) forming part of Ex.PW1/6 (colly.) but stated that the said e-mail was never replied to. He denied that e-
mails dated 23.10.2013 (page 40) and dated 23.02.2015 (page no. 83) forming part of Ex.PW1/6 (colly), indicate that the defendant had postponed the schedule for the training stage. He admitted that Sh. Arjun Shivshankar was the point of contact of the defendant for the project.
(30) DW1 further deposed that he was not aware if the plaintiff had delivered the entire BIM Technology project to the defendant on 11.03.2015 by uploading the complete software on URL BUZZSAW, which was a common platform for the plaintiff and the defendant to exchange the documents. He had deposed the same after being confronted with document Ex.PW1/7 (colly) (from page no. 101 to 113). When DW1 was confronted with his affidavit of admission-denial of documents, he admitted that the software was uploaded by the plaintiff on URL BUZZSAW and the defendant had downloaded the same, however, deposed that the defendant could not use the software without training. He further deposed that he was not aware if the CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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defendant had ever written to the plaintiff stating that the defendant cannot use the software without training even though the defendant had downloaded the software. The witness was confronted with e-mails dated 19.08.2013 (page no.52) and dated 10.04.2015 (page no.70) forming part of Ex.DW1/5 and was asked if he had provided the schedule for training as sought by the plaintiff or Autodesk in the said e-mails, to which it was stated by him that these e-mails do not pertain to the present case and had volunteered that these e-mails were received from Autodesk and not from the plaintiff. However, he admitted that BIM Technology software was developed by Autodesk for the defendant and that Autodesk had appointed the plaintiff company to coordinate with the defendant for the execution and implementation of the BIM Technology project. He further admitted that the defendant had duly accepted the appointment of plaintiff by Autodesk for coordination, execution and implementation of the BIM Technology project. He further admitted that the plaintiff was duly authorized by Autodesk for raising invoices and receiving payments from the defendant. He admitted that the defendant did not respond to the e-mail dated 17.06.2015 at page no. 81 of Ex.DW1/5 and did not contradict the plaintiff's claim and further never raised any objection to the e-mail dated 17.06.2015 stating that the project was never completed or that the project was never delivered.
(31) He further admitted that the defendant never responded to the email dated 07.07.2015 at 6:31 PM sent by the plaintiff and that the defendant never gave any time schedule for the training as was sought by the plaintiff. He further admitted that in the said e-mail, no objections were raised with regard to the non delivery/ completion of the project by the plaintiff. He further CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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admitted that Mr. Raghuram was an employee of the defendant. He further deposed that he was not aware if after having received the invoice of the plaintiff vide email dated 06.08.2015 (page no.85) forming part of Ex.DW1/5, the defendant had raised any objection with regard to the quality or delivery of the project by the plaintiff.
(32) Vide separate statement of the Ld. Counsel for the defendant, the defendant's evidence was closed vide order dated 05.08.2024 and the matter was fixed for final arguments.
(33) Final arguments were heard as advanced by the Ld. Counsels for both the parties and material available on record was perused.
Issue wise findings are as follows:
Issue no.1:
Whether the suit of the plaintiff is barred by limitation? OPD (34) The onus to prove the above issue was upon the defendant. No categoric evidence has been led by the defendant with respect to the same. It is admitted on behalf of both the plaintiff and the defendant that purchase order Ex.PW1/3/ Ex.DW1/4 was placed by the defendant upon the plaintiff on 12.07.2013. The advance payment of 10% of the total amount was made by the defendant to the plaintiff on 10.11.2014, as per both Ex.PW1/5 and Ex.DW1/6. The invoice Ex.PW1/8 was raised by the plaintiff on 23.07.2015 and thereafter on 22.12.2015 the defendant by way of e-mail refused to pay the amount specified in the invoice. In view of the same, the cause of action for recovery arose when initially purchase order was placed, it again arose on CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.Page No. 20 of 27 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
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10.11.2014 when initial advance payment was made by the defendant to the plaintiff, it again arose when invoice was raised by the plaintiff and it further arose when the defendant refused to pay the amount specified in the invoice.
Admittedly, the initial advance payment of 10% of the project amount was paid by the defendant to the plaintiff on 10.11.2014, the invoice was raised on 23.07.2015 and the same was communicated to the defendant vide e-mail dated 06.08.2015 which is part of Ex.DW1/5. The present suit was initially instituted on 19.07.2016 and therefore, was instituted within three years of the initial payment of 10% of the project amount and therefore, the present matter is within limitation.
(35) Accordingly, as the matter is within limitation, the present issue is decided in favour of the plaintiff and against the defendant.
Issue no.2:
Whether the plaintiff is entitled to recovery of the amount of Rs.51,87,000/- along with pendente-lite and future interest? OPP (36) The onus to prove the above issue was on the plaintiff. Prior to discussing the above issue, the Court will first deal with the preliminary objection qua territorial jurisdiction which was raised by the defendant in the written statement, although, no issue was framed with respect to the same.
DW1 had admitted in his cross-examination that the purchase order dated 12.07.2013 Ex.DW1/4/ Ex.PW1/3 was placed by the defendant on the plaintiff at the address of the plaintiff situated at Ganesh Bazar, Delhi and that the advance payment of Rs.6,65,340/- was made to the plaintiff vide document Ex.DW1/6 in the bank account of the plaintiff maintained at CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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Chandni Chowk, Delhi. Thus, as it is admitted by the defendant that the purchase order was placed at Delhi and even the initial advance payment was received by the plaintiff from the defendant at Delhi, thus, part cause of action had arisen within the territorial jurisdiction of this Court and therefore, this Court has the territorial jurisdiction to try and adjudicate the present matter.
(37) Now with respect to the issue at hand, the plaintiff had examined its Authorized Representative as PW1 and the defendant had examined its Managing Director as DW1. It is admitted by both the parties that purchase order Ex.PW1/3 / Ex.DW1/4 dated 12.07.2013 was placed by the defendant with the plaintiff. Perusal of the said purchase order reveals that the said purchase order was for a total amount of Rs.63,73,060/- which included service tax @ 12.36% and thereafter excluded TDS @ 10%. The sub-total of the purchase order sans service tax and TDS was Rs.65 lakhs. Further, as per the said order, 10% of the payment was to be made by the defendant to the plaintiff on the signing of contract before the start of project, thereafter 20% of the payment was to be made on completion of Task-1, 40% of the payment was to be made on completion of Task-2, 10% of the payment was to be made on completion of Task-3, 10% of the payment was to be made on completion of Task-4 and remaining 10% of the payment was to be made on completion of Task-5. It is further admitted that the initial 10% payment which was to be paid at the time of signing of the contract before the start of project, was made by the defendant to the plaintiff by way of RTGS on 10.11.2014 to the tune of Rs.6,65,340/- as evident from account statement of plaintiff bank Ex.PW1/5 and the account transaction details relied upon by the defendant Ex.DW1/6. It is averred by the defendant that as the said payment was made belatedly by CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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the defendant, the plaintiff ought not to have provided services to the defendant, as the purchase order was placed on 12.07.2013 and the payment was made on 10.11.2014. However, the said stand of the defendant cannot be given credence to, as once payment was made by the defendant to the plaintiff pursuant to contract entered into between the parties and thereafter the plaintiff had advanced services to the defendant, both the parties had altered their position with respect to the other party and hence, had accepted the terms of contract.
(38) The plaintiff had further relied upon Ex.PW1/7 which are logs of URL BUZZSAW as proof of delivery of BIM technology to the defendant by Autodesk accompanied by proof of receipt and usage of the same by the defendant. DW1 in his cross-examination, when confronted with Ex.PW1/7 collectively, had admitted that the software was uploaded by the plaintiff on URL BUZZSAW and that the defendant had downloaded the same. Thus, it is admitted on behalf of the defendant that the services as uploaded on URL BUZZSAW by Autodesk on behalf of the plaintiff, were downloaded by the defendant.
(39) It is, however, contended by the defendant that it could not have used the said services without training which was not provided by the plaintiff to the defendant. DW1 was confronted with e-mails dated 19.08.2013 and 10.04.2015 which are part of Ex.DW1/5 (collectively) and was asked whether the defendant had provided the schedule for training as sought by the plaintiff or Autodesk in the said e-mails. DW1 did not answer the same and tried to evade the answer by stating that the said e-mails were received from Autodesk and not from the plaintiff. The defendant, however, admitted that CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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the BIM technology software was developed by Autodesk which had appointed the plaintiff company to coordinate with the defendant for execution and implementation of the project and that the plaintiff was duly authorized by Autodesk for raising invoices and receiving payment from the defendant. These e-mails which were sent on behalf of Autodesk to the defendant and are part of documents Ex.DW1/5 collectively which are relied upon by the defendant, clearly show that Autodesk had asked the defendant to provide the training dates and that the defendant had not provided the dates for training. The plaintiff had relied upon document Ex.PW1/6 collectively which contains email dated 23.10.2013 sent by the email id [email protected] to Dipankar Mondal wherein it has been pointed out by Mr. Arjun that there is a delay in receiving the required drawings approximately four weeks and the defendant do not want the training to start without required drawings in place. DW1 had admitted, in his cross-examination, that firstly Mr. Arjun Shiv Shankar was the point of contact of the defendant for the project and secondly that after Task-1 the next phase of project was drawings and the said drawings were provided by the defendant to the plaintiff. He also admitted that he had not placed on record any communication via which the defendant had insisted upon the plaintiff to complete Task-1, that is, training before proceeding to the next stage of drawings. He had further admitted that defendant had provided drawings to the plaintiff which was the next phase of the project after training. Thus, in the present matter drawings were provided by the defendant to the plaintiff. Further, as per e-mail dated 23.10.2013 as relied upon by the plaintiff, it was the intention of the defendant that the training has to be started after the required drawings are in place. Thus, the said e-mails reflect that the CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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defendant had sought time for trainings and had asked the plaintiff to proceed to the further phases of the project.
(40) Considering the admission of DW1 that complete software was uploaded on URL BUZZSAW, which was a common platform for the plaintiff and the defendant to exchange the documents, and that the same was downloaded by the defendant and further considering that the training was postponed by the plaintiff/ Autodesk on the asking of the representatives of the defendant, it is held that the plaintiff cannot be faulted for not providing training to the defendant as Task-1 viz. training was deferred by the plaintiff/ Autodesk on the asking of the defendant. DW1 had further admitted that they had received e-mail dated 17.06.2015 from Autodesk as per which Autodesk had claimed that they had completed the deliverables for Royal Gardenia except the training part. He had further admitted that they had not responded to the said e-mail and had never stated to them that the project was never completed or ever delivered. He further admitted that the defendant had not responded to the e-mail dated 07.07.2015 sent by the plaintiff and had also admitted that the defendant never gave time schedule for training as was sought by the plaintiff.
(41) This is a suit for recovery of Rs.51,87,000/-. It is the case of the plaintiff that in the said invoice they had not included the payment of Task-1 BIM Orientation Training as the same was not provided by the plaintiff to the defendant. The mere fact that the invoices were not raised in a phased wise manner and were raised together for Task-2 to Task-5 will not disentitle the plaintiff to claim payment for the tasks performed by the plaintiff as it is admitted by the defendant that they had downloaded the said software with CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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respect to Task-2 to Task-5 from URL BUZZSAW and they had not raised any objection with respect to the non delivery or completion of the project. Further, though it is admitted by the plaintiff that BIM Coordinator was not provided, however, 2.4 payment schedule which is part of Ex.DW1/2 does not mention about the payment which was promised towards the employment of on-site BIM Coordinator and therefore, nothing can be observed with respect to the amount attributed to the same by the parties in the contract. More so, with respect to the averment of the defendant that acceptance letter was a pre-requisite for disbursement of payment to the plaintiff, reliance is placed upon Ex.DW1/3 which is proposal of services for BIM implementation for Royal Gardenia project of the defendant. It is mentioned in Clause 2.6 that acceptance, formal or otherwise, is not a pre-requisite to payment and acceptance will be deemed received on completion of services. It is further written that either party may terminate the agreement with written notice but in the even of termination the customer shall pay for all completed work and work in progress. Thus, in view of Ex.DW1/3 itself, formal acceptance is not a pre-requisite for payment as per the agreement entered into between the parties. Further, though the contract can be terminated, however, the defendant is liable to make payment with respect to the work completed.
(42) Thus, in view of the above discussions and findings, it is held that the plaintiff is entitled to the recovery of Rs.51,87,000/- (Rupees Fifty One Lakhs, Eighty Seven Thousand only) from the defendant as per invoice Ex.PW1/8. In the plaint, the plaintiff had claimed interest @ 16% per annum on such sum, till its realization. However, such rate of interest seems CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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PALIWAL SHARMA
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exorbitant and hence, in the considered opinion of this Court, as per the prevailing rates of interest provided by the bank, interest @ 6% per annum would be just and proper.
(43) Issue is accordingly decided in favour of the plaintiff and against the defendant.
Relief:
(44) In the light of above discussions and findings, the present suit is decreed. The defendant shall pay to the plaintiff a sum of Rs.51,87,000/-
(Rupees Fifty One Lakhs, Eighty Seven Thousand only) with interest thereon @ 6% per annum from the initial date of filing of the suit till the date of realization of the said amount. Considering the nature of the suit, parties are directed to bear their own costs. Decree sheet be prepared accordingly.
(45) File be consigned to record room after due compliance.
Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2025.02.27 16:28:36
Announced in the Open Court +0530
on 27.02.2025 (Neha Paliwal Sharma)
District Judge-03, Central District,
Tis Hazari, New Delhi
It is certified that this judgment contains 27 pages and each page bears my signatures.
Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2025.02.27 16:28:42
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(Neha Paliwal Sharma)
District Judge-03, Central District,
Tis Hazari, New Delhi
CS DJ 1313/2018, M/s. ARK Infosolutions Pvt. Ltd. Vs. Suvilas Properties Pvt. Ltd.
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