Delhi District Court
Anil Mittal vs Vvn Trading Pvt Ltd on 23 December, 2024
IN THE COURT OF PAWAN KUMAR MATTO
DISTRICT JUDGE COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CS (Comm.) No. 548/2022
CNR No. DLSH01-006312-2022
In the matter of :-
Sh. Anil Mittal,
S/o K.C. Mittal
R/o K-002, Pearl Gateway Towers,
Sector -44, Noida U.P. - 201301
......Plaintiff
VERSUS
M/s VVN Trading Pvt. Ltd.
Having its registered Office at
283, ACGR Enclave, Delhi - 110092
through it's director
Mr. L.D. Mittal
Also at
283, AGCR Enclave, Delhi - 110092
...... Defendant
Date of institution of the case : 27.09.2022
Date of final arguments : 17.12.2024
Date of judgment : 23.12.2024
JUDGMENT
1. Briefly stating that the plaintiff has filed the present suit for recovery of Rs. 19,00,000/- (Ninteen Lacs Only) along with pendente lite and future interest @18% per annum till the date of realization of the decretal amount with cost, stating therein that the present dispute is a commercial dispute, which is covered under CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 1 of 43 section 2 (1)(c) of the Commercial Courts Act, 2015, therefore the present plaint is being preferred under the Commercial Courts Act, 2015.
2. It is further averred that the plaintiff is engaged in brokerage and consultancy services in the field of Real Estate, in the NCR region for last twenty years and has a reputed image in the Real Estate market.
3. It is further averred that the defendant is a registered company under the companies Act and is liable to sue and to be sued in it's own name. It is further averred that the defendant No.2 is the Director of the defendant No.1 company and is responsible for the day to day affairs of the defendant company.
4. It is further averred that :-
A. The defendant company is the owner of the Industrial Property situated at A-40, Sector 58, Noida and in the beginning of year 2019, it was looking for renting/leasing out the said property. The plaintiff had business relations with defendant company for the last 4 years gained knowledge of the above mentioned fact through Mr. G.V. SHARMA (General Manager) and offered his services for finding a suitable lessee for the said property. B. It is further averred that the plaintiff herein had put his heart and soul in the present deal and was constantly in touch with the management of the defendant company. It CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 2 of 43 is further averred that there are several Whatsapp chats, wherein, the plaintiff was suggesting suitable tenants for the property of the defendant No.1/ company and the works, which needs to be performed before leasing the abovesaid property. The plaintiff was in touch almost with all top officials of the defendant company including the legal advisor Sh.Ajay Dahiya.
C. It is further averred that as per the prevailing practice in real estate arena, the brokerage varies from 3 to 06 months for corporate deals, but, on the request of the defendant no.2 plaintiff agreed for 2 months rent, as brokerage commission. It is further averred that in the month of January 2019, a meeting was held at the office of the defendant company in Karkardooma, Delhi to finalize the terms of lease agreement and the brokerage of the plaintiff. The meeting was attended by Sh. L.D. Mittal (Chairman) defendant No.1, Sh. G.V. Sharma (General Manager) and Sh. Ankit and Sh.Pranav for lessee Company and by the plaintiff. The brokerage of plaintiff was also finalized in that meeting in front of all above gentlemen. It is further averred that as per the business norm, it was agreed between plaintiff and the defendant company, that plaintiff was to receive brokerage commission for the lease deed equivalent to 2 months rent i.e. Rs 19,00,000 (Nineteen Lakhs Only).
D. It is further averred that the plaintiff after several efforts successfully finalized the deal between the defendant CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 3 of 43 No.1/ company and M/S Ledure Lighting Ltd. (lessee) for the abovesaid property. It is also averred that after several negotiations, a Memorandum of Understanding dated 21/02/2019 was executed between the defendant company and the lessee company and as the deal was executed due to the efforts of plaintiff and all the terms and conditions were agreed upon before him, he was made a witness to the MOU dated 21/02/2019.
E. It is further averred that on the basis of the MOU dated 21/02/2019, a lease deed dated 11/03/2019 was executed between the defendant company and the lessee. It is also averred that in the lease deed, one of the employee of the plaintiff (Mr. Manoj Kumar) was made the witness, as all the formalities of the execution of the lease deed were processed by the plaintiff. It is also averred that the lease deed was executed for a lease rent of Rs 9,50,000/-(Nine Lakh Fiftey Thousand) per month. It is also averred that the deal was earlier finalized for Rs. 9,25,000/- and after emphasis from the management of the defendant company, the same was renegotiated to Rs. 9,50,000/- due to efforts of the client of plaintiff.
F. It is further averred that the plaintiff had raised his invoice on dated 11.09.2019 for the brokerage amount and the same was forwarded to the defendant company for clearing the liabilities.
G. It is further averred that since the date of invoice i.e 11.09.2019, the plaintiff has been continuously sending CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 4 of 43 reminders, but, the defendants are yet to clear the outstanding dues of the plaintiff. Hence the present suit.
5. It is also averred that even after repeated reminders on mail, whatsapp and other methods, the defendants have failed to clear the dues of Plaintiff and failed to pay the amount of Rs 19,00,000/-. It is further averred that since the execution of the lease deed on dated 11.03.2019, the plaintiff has been waiting to receive his dues, but, there has been no response. It is also averred that the Plaintiff has visited the office of the defendants on several occasions and discussed the issues with different officials of the defendant company, but, there has been absolutely no response. It is also averred that the Plaintiff has exercised every possible option and avenue to realize his dues, but, he did not receive proper response from the defendants.
6. It is further averred that the plaintiff had issued a legal notice dated 30.05.2022 and demanded the payment of his outstanding dues. But, the plaintiff was surprised and shocked, as the defendants have completely denied their liability towards the plaintiff.
7. It is further averred that the defendant company in the most deceitful and dishonest manner has denied the payment of Rs 19,00,000/- (Nineteen Lacs Only).
8. It is further averred that the defendant has cheated to the plaintiff and the defendant company is deliberately and malafidely indulged in the malpractices and denied the due payments to the plaintiff. Hence, the plaintiff has has been compelled to take efficacious legal action against the defendants.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 5 of 43
9. It is further averred that the defendant company has it's registered office, within the territorial jurisdiction of this Court and therefore this Court has the jurisdiction to try and entertain the present suit.
10. It is further averred that the lease deed was executed on dated 11.03.2022 and the invoice as raised on dated 11.09.2019. The present suit was to be filed within three years, since the date of execution of the lease deed and prayed for passing a decree for the recovery of a sum of Rs 19,00,000/-along with pendente-lite and future interest @18% per annum till the date of realization of the decretal amount, with cost in favour of the plaintiff and against the defendants.
11. The summons of the suit were issued to the defendant and on completion of service of summons, the defendant has appeared through it's counsel and filed written statement and contested the suit of the plaintiff on the ground inter alia that the suit of the plaintiff is frivolous, vexatious, baseless and devoid of merit. It is also stated that the plaintiff has suppressed the material facts and the present suit has been filed by the plaintiff to enrich himself.
12. It is also stated that defendant has stated that he is the owner of the property bearing no. A-40, Sector 58, Noida, UP and it was looking for leasing out the same and since the defendant was intending to lease out the said property, so, it had put a huge banner of "To LET"
on the front gate of the said property and the plaintiff has filed the CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 6 of 43 photograph of the said banner along with plaint. It is also stated that after seeing the said banner, the plaintiff had approached the defendant by introducing himself to be representative of a company M/s Ledure Lighting Ltd., which was looking for premises on lease for the factory. It is also stated that as the discussion progressed, then the plaintiff had told/disclosed to the authorized representative of the defendant namely Sh. G.V. Sharma (who was handling the matter and who has been now retired from the service in the month of December, 2021) that he is a property dealer and M/s Ledure Lighting Ltd., was his client and asked for brokerage, if deal goes through. The defendant has also stated that it was told and clarified to the plaintiff that no brokerage would be paid to him and the defendant will let go the deal than paying any brokerage and the plaintiff was at liberty to not proceed ahead with the deal, on which the plaintiff had stated that he was OK with it and he would take the brokerage from the prospective tenant/ M/s Ledure lighting Ltd., and something was better than nothing. It is also stated that in view of putting of banner of "To Let" on the property, the lot of queries were coming from the prospective tenants and it was not agreeable to pay any brokerage.
13. The defendant has also stated that the defendant had never agreed/committed to brokerage charges to the plaintiff. It is also stated that till the time lease deed in question was not executed/registered, there was no even whisper from the side of the plaintiff regarding his brokerage and once the lease deed was registered, the plaintiff started asking on the concocted facts.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 7 of 43
14. The defendant has also stated that the plaintiff is demanding huge amount, as brokerage from the defendant and the plaintiff was interacting on behalf of M/s Ledure Lighting Ltd., over e-mails. It is also stated that the plaintiff has been taking contradictory stand with the regard to his commission/brokerage. It is also stated that in the email dated 09.08.2019, (relied upon by the plaintiff), on dated 09.09.2019 and 21.09.2019, the plaintiff had stated that one month's brokerage was agreed upon by the defendant and demanded only one month brokerage, whereas, in his subsequent emails, legal notice, as well as in the suit, the plaintiff is demanding and stating that two month's brokerage was mutually agreed. The conduct and intention of the plaintiff is malafide and his sole intention is to extract unwarranted money from the defendant. Without prejudice to the above that no amount is payable, even otherwise no one pays commission/brokerage equivalent to two month's rent and as per market practice, it does not exceed 15 days of rent. It is evident from the emails/Whatsapp chats/documents filed by the plaintiff that nowhere, the brokerages charges had been agreed upon by the defendant. The story of the brokerage is completely false and concocted by the plaintiff. The defendant had duly clarified it's stand to the plaintiff, vide it's emails dated 11.12.2019 and 02.01.2020, as well in reply to the legal notice of the plaintiff.
15. Replying to the plaint on merit,the defendant has not denied that the dispute is commercial between the parties The defendant has also denied that the plaintiff has reputed image in the real estate market.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 8 of 43 The defendant has not denied that the defendant is the registered company.
16. The defendant has also admitted that defendant is the owner of the property bearing no. A-40, Sector 58, Noida U.P. The defendant has denied that it was having business relations with the plaintiff for the last four years or that the plaintiff had offered services for finding suitable lessee for the said property of the defendant. The defendant had denied any dealing whatsoever with the plaintiff. It is also stated that the defendant was intending to lease out it's property and it had put huge "To Let" banner on the front gate of the property and after seeing the banner, the plaintiff had approached to the defendant introducing himself as representative of the company M/S Ledure Lighting Ltd., which was looking for the Place on lease for their factory. It is also stated that the plaintiff had contracted with Sh. G.V. Sharma, (the authorized representative of the defendant) in this regard and who has retired from the services in month of December, 2021. The defendant has also stated that plaintiff is the property dealer and he had told that M/S Ledure Lighting Ltd was his client and asked for the brokerage, if deal goes through. It is also stated that it was clarified to the plaintiff that no brokerage would be paid to him and the defendant will let go the deal, rather than paying brokerage and the plaintiff was at liberty to not proceed with the deal, to which plaintiff had stated that he was OK with it, as he would in any case take brokerage from the prospective tenant/Ledure Lighting Ltd. and something was better than nothing. The defendant had also stated that the defendant never assigned the task to find a tenant to the plaintiff CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 9 of 43 and did not avail his services. The plaintiff was communicating with the defendant as the representative of M/s Ledure Lighting Ltd.
17. The defendant has denied that the plaintiff had suggested suitable tenants for the said property and reiterated that the plaintiff had approached to the defendant and representing himself as representative of M/s Ledure lighting Ltd.
18. The defendant has denied that the defendant had agreed to pay 02 months rent as brokerage/commission to the plaintiff. The defendant has also denied the alleged brokerage of Rs. 19,00,000/- was finalized in the meeting and stated that the plaintiff has concocted the entire story. The defendant has admitted that it had lease out the property to M/s Ledure Lighting Ltd., and stated that role of the plaintiff in the said lease was of the representative of the tenant. The defendant has not denied the MOU dated 21.02.2019 and lease dated 11.03.2019. The defendant has also stated that the plaintiff has unilaterally raised the invoice after 06 months of registration of lease and after denying other averments made in the plaint. The defendant has prayed for dismissal of the suit of the plaintiff.
19. The plaintiff had filed rejoinder, wherein, he has denied the averments made in the written statement and reiterated the contents of the plaint and on the basis of pleadings of parties, the Ld. Predecessor of this Court vide his order dated 17.04.2023 was pleased framed the following issues:-
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 10 of 43
(i) Whether the plaintiff is entitled for recovery of the suit amount, as claimed? OPP.
(ii) Relief ?
20. Thereafter the matter was fixed for evidence of the plaintiff. In order to prove his case, the plaintiff has examined himself as PW1 vide his affidavit Ex. PW-1/A and in one way or the other, he has reiterated the contents of the plaint therein. He has relied upon the documents Ex.PW1/1 to PW1/9. He was cross examined by the Ld. Counsel for the defendant.
21. Sh. Akhilesh Bhatnagar has been examined as PW-2, vide his affidavit PW-2/A, who has supported version of the plaintiff. He was cross examined by the Ld. Counsel for the defendant.
22. Sh. Ankit Mittal has been examined as PW-3 vide his affidavit PW-3/A He was also cross examined by the Ld. Counsel for the defendant.
23. Thereafter, the Ld. Counsel for plaintiff had given the statement for closing the evidence of the plaintiff and evidence of the plaintiff was closed. Then, the matter was fixed for evidence of the defendant.
24. The defendant has examined Sh. G.V. Sharma as DW-1 vide his affidavit DW-1/A, wherein, he has deposed on the similar lines as that of his written statement. He has relied upon the documents Ex. DW-
1/1 to Ex. DW-1/5. He was cross examined by the Ld. Counsel for the plaintiff.
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25. Thereafter defendant has also been examined Sh. Manish Kumar Lodhi as DW-2, vide his affidavit DW-2/A. He has relied upon the documents Ex. DW-2/1 to Ex. DW-2/3 (OSR). He was cross examined by the Ld. Counsel for the plaintiff.
26. The defendant did not examine any other witness and closed it's evidence.
27. I have heard the counsels for the parties.
28. Sh. Arjun Sanjay, Ld. Counsel for plaintiff has submitted that in the case in hand, the pleadings of the defendants were signed by one Ms. Shalini Tyagi, who is neither the Director nor the Secretary and submitted that the resolution dated 03.11.2022 was passed in favour of Ms. Shalini Tyagi, which is exhibited as Ex. DW-2/2 . He has also submitted that Ms. Shalini Tyagi did not come in the witness box to depose. He has further submitted that the pleadings of the defendant are not verified as per the mandate of Order 6 Rule 15A and Order 29 Rule 1 of CPC. Thus, the pleadings of the defendant are erroneous, so, the written statement cannot be looked into in view of the same.
29. He has also submitted that DW2 Sh. Manish Kumar Lodhi has relied upon the Minutes of Meeting Ex.DW2/3 and DW2/2, but, the said Minutes of Meeting were filed by DW2 Sh. Manish Kumar Lodhi at the time of evidence, that too, without the leave of the court, at a belated stage in violation of Order 11 Rule 1 (10) of CPC, so, the resolution Ex.DW2/1 and Minutes Book CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 12 of 43 Ex.DW1/3 cannot be looked into. He has also submitted that the plaintiff has relied upon two documents i.e. Memorendum of Understanding Ex.PW1/1, which was entered into between the defendant and it's lessee M/s Ledure Lighting Ltd., it is witnessed by the plaintiff and submitted that the plaintiff has also relied upon the document i.e. lease deed Ex.PW1/2 entered into between the defendant and M/s Ledure Lighting Ltd. He has also submitted that Sh. Manoj Kumar (employee of the plaintiff) is the witness to the lease deed and submitted that since the plaintiff has filed the present case for recovery of his brokerage, as it was agreed upon between the defendant and the plaintiff that the defendant would pay two months rent to the plaintiff as his commission and submitted that the property of the defendant has been leased out with the help of the plaintiff, so, the plaintiff has claimed Rs. 19,00,000/-, which is equivalent to the two months rent of the property of the defendant.
30. He has further submitted that the defendant has claimed that the plaintiff was not known to the defendant prior to the year 2019. He has further submitted that the plaintiff has relied upon Whatsapp chats Ex.PW1/4 (colly) (89 pages) and submitted that from page no. 33, it is clear that on dated 10.08.2017, copy of digital business card was sent by the plaintiff to Sh. G.V. Sharma (DW1) and on dated 04.02.2019, Ganga Vishnu Sharma had sent copy of his Aadhar card to the plaintiff (Page no.36) and submitted that at page no. 38, Whatsapp reveals that the plaintiff had requested for payment of brokerage and he has also submitted that plaintiff has also relied upon the copies of certain emails Ex.PW1/9 (page CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 13 of 43 no. 124 (email sent by G.V. Sharma to Ankit), at page no. 128 email sent by Ankit to G.V. Sharma, at page no. 131 email sent by Ankit to Ajay Dahiya i.e. Counsel for the defendant, at page no. 134 email sent by plaintiff to G.V. Sharma, Shalini and chairman of Sonalika, at page no. 135 email sent by plaintiff to VC of Sonalika and at page no. 137 email sent by plaintiff to Chairman of Sonalika, Shalini and G.V. Sharma, 138 (email sent by plaintiff to G.V. Sharma and Shalini Tyagi and demanded for payment of brokerage. He has also submitted that reply dated 11.12.2019 of email Ex.DW1/3 of the defendant reveals that for the first time the defendant had denied the claim of the plaintiff for recovery of his brokerage. The ld. Counsel for the plaintiff has relied upon the judgments in case Nitin Gupta Vs. Texmaco Infrastructure Pvt. Ltd., CS(comm.)1215/2016 Bela Creations Vs. Anuj Textiles, CM(M.) 405/2022 and TTK Prestige Vs. Baghla Sanitryware Pvt. Ltd., CS (comm.) 281/2021. Ld. Counsel for the plaintiff has further submitted that MOU Ex. PW-1/1 is signed by the Sh. Anil Mittal, (plaintiff) as a witness for both the parties because he was broker in the said transaction. He has also submitted that lease deed Ex. PW-1/2 is signed by Sh. Manoj, who is the employee of the plaintiff and further submitted that PW-3 Ankit Mittal who is son of the plaintiff has been examined as PW-3 and he has supported the version of the plaintiff and prayed for decretal of the suit along with interest and cost.
31. On the other hand, Sh. Ajay Dahiya, Ld. Counsel for the defendant has submitted that the ld. Counsel for the plaintiff has argued that Resolution of Board Ex. DW-2/2 has not been proved CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 14 of 43 because Ms. Shalini Tyagi failed to appear in the court, whereas, the written statement on behalf of the defendant has been signed by Ms. Shalini Tyagi. He has also submitted that order dated 23.01.2023 passed by the predecessor of this court reveals that the predecessor of this court was pleased to allow the plaintiff to file replication, admission/denial of the documents filed by the defendant and further submitted that defendant has relied upon 05 documents viz. (1) Certified true copy of the board resolution dated 03.11.2022 of the defendant/VVN Trading Pvt. Ltd., (2) Copy of email dated 09.09.2019 sent by the plaintiff to the defendant, (3) Copy of email dated 21.09.2019 along with the attachment sent by the plaintiff to the defendant, (4) Copy of email dated 11.12.2019 sent by the defendant to the plaintiff, (5) Copy of email dated 02.01.2020 sent by the defendant to the plaintiff, and submitted that plaintiff did not file any admission/denial of all these 05 documents and further submitted that in view of non filing of admission/denial, as per Chapter VII Rule 7 of High Court Rules, the documents filed by the defendant are deemed to be admitted by the plaintiff and submitted that High Court Rules are also applicable to the District Court as held by the Hon'ble High Court of Delhi in case OK Play India Pvt. Ltd. Vs. AP Distributors and Ors. CM(M) 346/2020. He has also submitted that Ms. Shalini Tyagi was an authorized representative of the defendant. She was authorized vide Resolution of Board dated 03.11.2022 and submitted that even if, Ms. Shalini Tyagi did not appear in the court, the same is inconsequential, because the resolution dated 03.11.2022 Ex. DW-2/2 is deemed to be admitted plaintiff and it is also proved by Sh. Manish Kumar Lodhi, who has CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 15 of 43 been examined as DW-2. He has also submitted that that Sh. Manish Kumar Lodhi DW-2 has also proved Resolution of Board dated 25.11.2023 Ex. DW-2/2 and copy of minutes meeting Ex. DW-2/3. He has also submitted that even otherwise Ex. DW-2/3 does not go into the route of the matter.
32. He has also submitted that it is well settled Principle of law that plaintiff has to stand own it's own legs, therefore, it was incumbent on the part of the plaintiff to prove that the defendant had agreed upon to pay commission of Rs 19,00,000/-, which is equivalent to the rent of 02 months. He has also submitted that plaintiff has claimed that there was an oral agreement between the parties that the defendant would pay brokerage of Rs. 19,00,000/- which is equivalent of the two months rent and further submitted that in para no. 4(c) of the plaint, the plaintiff has claimed that the brokerage varies from 3 to 6 months for the corporate deals and also claimed that in a meeting, held in the month of January 2019, before the plaintiff and the defendant no. 2, the defendant no. 2 had agreed to pay 02 months rent as brokerage/commission and claims that such meeting was attended by the Chairman of the defendant (DW-
1) Sh. GV Sharma, Ankit and Pranav, who were the directors of the M/S Ledure Lighting pvt. Ltd, and submitted that the plaintiff could be examined Ankit or Pranav(Directors of M/s Ledure Lighting Ltd.) as independent witness, but, defendant did not choose to examine any of them. He has also submitted the testimony of the plaintiff is full of contradictions and suspicion, because the plaintiff in his email Ex. PW-1/DB dated 02.09.2019 had asked for payment of brokerage CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 16 of 43 equivalent to one month rent and such contents of the said documents are inconsistent to para 4 of the plaint. He has also submitted that testimony of PW-1 is self-contradictory. He has also submitted that plaintiff has claimed 02 months rent as brokerage commission from the defendant. But, the plaintiff in his cross examination, he has deposed that he had taken Rs. 3,50,000/- as brokerage from the M/S Ledure Lighting pvt. Ltd, and his son has stated in his cross examination that this amount of Rs. 3,50,000/- is equivalent to rent of 11 days.
33. He has further submitted that lease deed between the defendant and M/S Ledure Lighting pvt. Ltd was executed on 11.03.2019, but, this plaintiff kept mum for months together and in the month of August, 2019, first time the plaintiff has sent an email to the defendant, It is admitted by the PW-3 in his cross examination and submitted that such delay proves that after taking brokerage from the M/S Ledure Lighting pvt. Ltd, the plaintiff has concocted story and filed the present case against the defendant. He has also submitted that plaintiff has filed this case in order to extort money from the defendant and submitted that initially this plaintiff has come to the defendant and told to be representative of M/S Ledure Lighting pvt. Ltd, but, thereafter he had also told that he is property dealer and asked to the defendant to pay commission. But when the defendant had refused to pay and then this plaintiff has asked to the defendant that he would take his commission from the M/S Ledure Lighting pvt. Ltd, and submitted that defendant never agreed to pay any commission to the plaintiff. He has also submitted that defendant had hanged a banner of CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 17 of 43 "To Let" and after seeing the banner, the plaintiff had approached to the defendant, being the representative of the M/S Ledure Lighting Ltd, and asked to the defendant to give the property on rent and submitted that the plaintiff has failed to prove on record that defendant had ever agreed to pay any brokerage /commission to the plaintiff and submitted that this plaintiff during his cross examination has stated that he was not aware about the banner of "To Let" hanged by the defendant on his property, but when he was shown the photograph of the banner on the Judicial file, which was filed by the plaintiff, then he had admitted that the banner was hanged Ex. PW-1/4(colly), (at page no. 80) and submitted that plaintiff has not come to the court with the clean hands. He has filed the present case to extort the money from the defendant and submitted that defendant had given reply to the defendant through it's email DW-1/3 dated 11.12.2019. But despite of it, the plaintiff has filed the present case and submitted that since the plaintiff has failed to prove that the defendant has ever agreed to pay brokerage/commission to the plaintiff and since the testimony of the plaintiff is found to be inconsistent to his plaint and documents, so it cannot be relied upon. He has also submitted that since the plaintiff has failed to prove on record that he is entitled to recover suit amount of the defendant, so, the suit of the plaintiff may be dismissed.
34. In rebuttal thereof, the Ld. Counsel for the plaintiff has submitted that even if, plaintiff did not file any admission/denial of the documents of the defendant. The same is inconsequential. ..He has also submitted that the defendant has filed certified copy of mintues of CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 18 of 43 meeting that too without certification form ROC, so, the same cannot be looked into and prayed for decretal of the suit.
35. I have given thoughtful consideration to the submissions made by the Ld. Counsels for the parties and perused the record.
36. The perusal of record reveals that the plaintiff has sought to recover Rs. 19,00,000/- along with interest @ 18% per annum and pendente lite and future interest till the realization of the amount and cost and burden of proving issue no. 1 was on plaintiff.
37. In order to prove his case, the plaintiff has examined himself as PW1 vide his affidavit Ex.PW1/A and in one way or the other, he has reiterated the contents of his plaint therein. He has relied upon the following documents:-
i. Copy of Memorandum of understanding dated 21.02.2019 Ex.PW-1/1.
ii. Copy of lease deed dated 11.03.2019 Ex.PW-1/2. iii. Copy of Invoice dated 11.09.2019, Mark PW-1/3. iv. Print out of Whatsapp chats between the plaintiff and the officials of defendant company Ex.PW-1/4 (Colly- 89 pages). v. Certificate under Section 65 B of Evidence Act in support of Whatsapp chats print out Ex.PW-1/5 (Colly-89 pages). vi. Copy of E-mail dated 02.12.2019 exchanged between the parties Ex.PW-1/6 vii. Copy of legal notice dated 30.05.2020 sent by plaintiff to defendant Ex.PW-1/7.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 19 of 43 viii. Copy of reply of defendant to legal notice Ex.PW-1/8 . ix. Copies of E-mails exchanged between the plaintiff and defendant which are now Ex.PW-1/9 (Colly- 24 pages).
38. The plaintiff was cross-examined by the Ld. Counsel for the defendant and during his cross-examination, he has deposed that his office at present is situated at D-5 Sec-10, Noida. His main place/area of operation is in Gautam Budh Nagar, Noida. He deals in residential and commercial properties. He also deals with corporate. He has completed several deals/transactions of corporate/companies/ company clients. He does not deal with builder properties. He also deals with under construction properties of reputed persons. He maintains staff strength of 10-15 persons in the office. At present He has a rented office. In the year 2019, when the transaction in question took place he had the same rented office at D-5 Sec-10, Noida. His office expenses are about of Rs. 2,00,000-3,00,000/- per month. He has admitted it to be correct that his annual turn over/ revenue will be more than Rs. 35,00,000- 40,00,000/-. He does not have any GST registration in his personal name. The Bill Mark PW-1/3 dated 11.09.2019 is in his name. He has not registered himself with RERA. He does not have any document to show that Sh. Manoj Kumar is his employee. He has voluntarily deposed that he does not maintain any written record of his employees. He does not issue salary slip to Manoj Kumar. he does not pay PF/ESI for his employees. He has denied that he is not involved in the business of real estate or property dealings. He has denied that he has made a false claim in his plaint. He has deposed that he has mentioned in CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 20 of 43 Para 4 of his affidavit that he has had business dealing with the defendant for the last 4 years and deposed that by this mean 4 years prior to the transactions, which took place in 2019. He has also deposed that he has not completed any deal/ transaction with the defendant prior to the present transaction. He has also deposed that he used to maintain contact with the defendant since the year 2015. he had shown the some properties of the defendant to other parties, from time to time, but, he did not maintain any record of the same, as such deals did not materialize. He has also deposed that he has not placed on record any such previous proposal made to the defendant by him, on behalf of a third party. He has denied that he was never in contact with the defendant prior to the present deal. He has also deposed that in Para 5 of his affidavit, he has mentioned that there were several Whatsapp chats, where the plaintiff had suggested suitable tenants for the property in question to the defendant and he can point out the same on record and this witness pointed out towards whatsapp chat on Page 64 of PW-1/4(Colly) and admitted that the date of this particular whatsapp chat is 30.11.2019. He has admitted to be correct that the lease of the subject property was executed on dated 11.03.2019, which is prior to this particular whatsapp chat. He has denied that he has made a false statement on oath in Para 5 of his affidavit. He did not have any written record regarding his statement (in Para 6 of his affidavit) pertaining to the fact that brokerage in real estate arena varies from 3-6 months in corporate deals. He has also deposed that he does not remember, in which deal, he had received brokerage of 3-6 months and he can produce the record to show such brokerage CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 21 of 43 having been received by him. He has denied that in transactions, where brokerage is payable/agreed, it is never more than 15 days rent. He has denied that in the meeting of January 2019 mentioned by him in Para 6 of his affidavit was only limited to finalizing terms and conditions of the prospective lease. He has denied that no discussion took place in that meeting regarding his brokerage. He has denied that the defendant never agreed for his alleged brokerage of 19,00,000/- which is equivalent to two months rent and then Ld. Counsel for the defendant had put certain documents before the witness, which were filed by defendant with it's written statement, then he had admitted that he had sent E-mail dated 21.09.2019 along with an attachment containing reminder letter dated 21.09.2019 and the same is Ex.PW-1/DA and Ex.PW-1/DB. He has admitted it to be correct that at points A to Al of Ex.PW-1/DB, he had mentioned that his dues were one month rent of the said property. The plaintiff (PW-1) during his cross examination has admitted that he has not placed on record any document to show that the defendant had agreed to pay 02 months rent as commission/brokerage to him when this witness (PW-1) was asked as to when the first time when he demanded two months rent as brokerage from the defendant, then, he had deposed that he had written E-mail dated 28.08.2019 (part of Ex.PW-1/9(Colly-Page
139) to the defendant for seeking two months rent, as brokerage.
39. He has also deposed that he is not aware, whether the defendant had put up a board of "To Let" at the said property also mentioned mobile numbers of concerned persons of the defendant.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 22 of 43 But, on seeing the same on the judicial file, he had admitted it to be correct that on Page 80 part of Ex.PW-1/4(Colly), there is photograph of the property in question, which reflects a board on the gate mentioning "To Let". He has denied that he has deliberately made false and inconsistent statement in his evidence to mislead the Court.
40. He has denied that he had represented himself as authorized representative of M/s Ledure Lightings Ltd., when he approached the defendant and not as a broker. He has denied that when the discussions progressed further over a period of time, only then he had disclosed that he is a broker and that Ledure Lightings was his client. He has denied that he had requested to the defendant to consider for paying him the brokerage, if the deals goes through. He has denied that Sh. G V Sharma authorized representative of the defendant, at that time, had clarified and told him in express terms that no brokerage would be paid and the defendant would rather let go the deal than to pay the brokerage. He has denied that Mr. G V Sharma had told him that he was at liberty not to proceed ahead, as the defendant had other offers, as well. He has denied that he had agreed with Mr. G V Sharma and had agreed to forgo the commission/brokerage from the defendant and he would get brokerage from the prospective tenant and something was better than nothing. He has denied that he had approached the defendant for the present deal. He has denied that during the entire transactions, he had interacted with the defendant as authorized representative of M/s Ledure Lightings Ltd and not as a broker. He CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 23 of 43 has also deposed that the whatsapp chats Ex PW1/4(Colly) are contained in his phone, which he was carrying with him and he can show the same. His mobile number is 9810289012. He can show whatsapp chat dated 10.08.2017 appearing at Page No. 33 of Ex.PW-1/4(Colly). This Witness had produced his phone and shown whatsapp chat dated 10.08.2017 with one Mr. GV Sharma. He has admitted it to be correct that on page 33, there is part printout of whatsapp chat dated 14.08.2017, which is not found in his mobile phone after the whatsapp chat dated 10.08.2017. He has also deposed that he had received brokerage regarding the property in question from M/s Ledure Lighting Ltd. He has also deposed that he had brought record regarding brokerage received by him for 3-6 months of rent. The document agreement dated 01.04.2022 is marked as Ex.PW-1/10, document printout of email dated 19.03.2022 with attachment is marked as Ex.PW-1/11 (Colly) ( running 4 pages ). He has admitted it to be correct that the agreement Ex.PW-1/10 pertains to sale of property and not lease. The document Ex.PW-1/10 does not reflect payment of brokerage between 3-6 months of rent. He has also admitted it to be correct that the document Ex.PW-1/11 (Colly) also does not reflect payment of brokerage between 3-6 months of rent. He has Voluntarily deposed that the commission, which is payable under the said document is much more than six months of rent. He does not remember, whether he had received commission from M/s Ledure Lighting Limited in cheque or in cash. No lady by the name of Ms. Sangeeta works for him or in his office. He has admitted it to be correct that he has taken commission of Rs. 3,50,000/- from M/s Ledure Lightings Limited for this particular deal, which is the subject CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 24 of 43 matter of the dispute. He has denied that that he raises the invoice of their brokerage immediately on completion of the deal. He has Voluntarily deposed that Several times clients give brokerage in cash and request not to raise invoice. He has denied that he has deposed falsely.
41. Sh. Akhilesh Bhatnagar has been examined, as PW2 vide affidavit Ex.PW2/A who has supported the case of the plaintiff and testified that the plaintiff is engaged in the brokerage and consultancy and the defendant is the owner of the property bearing no. A40, Sector 58, Noida and plaintiff was in touch of the top officials of defendant company including its legal advisor Sh. Ajay Dhaiya. He has also testified that after several negotiations, a Memorandum of Understanding date 21.02.2019 was executed between the defendant and lessee, due efforts of the plaintiff. He has also testified that on the basis of MOU dated 21.02.2019, a lease dated 11.03.2019 was executed between the defendant and lessee and Manoj Kumar (employee of the plaintiff and Anil Mittal plaintiff) was made witness of the execution of the said lease deed. He has also testified that the plaintiff raised invoice on dated 11.09.2019 and the plaintiff was sending reminder to the defendants to clear the outstanding dues of the plaintiff. He has further testified that despite of repeated reminders on email, whatsapp and other modes, the defendant failed to pay the amount of Rs.19,00,000/-. He has also testified that when, no response was received from the defendant, then, the plaintiff has issued legal notice dated 30.05.2022 and demanded of the payment of outstanding dues.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 25 of 43
42. The PW-2 was cross-examined by the Ld. Counsel for the defendant and during his cross-examination, he has deposed that he started working with the plaintiff since October, 2015. No appointment letter was issued to him. No salary slip was issued to him. There is no deduction of PF by the plaintiff and he is a commerce graduate and he has qualified CA Intermediate. He has 25 years of experience in finance and taxation and it is his fifth employment and none of his employers had ever issued any appointment letter or salary slip to him. He is maintaining the books of account of the plaintiff. Again said he is maintaining books of account of the companies of the plaintiff. He has further deposed that he is employed in a company of which Sh. Anil Mittal is the Director. He is not employee of Mr. Anil Mittal. He has also deposed that company of the plaintiff is registered under GST. He is not aware of the exact figure of commission taken by Sh Anil Mittal from M/s. Ledure Lighting. He has also deposed that there was no written agreement between the plaintiff and defendant company with regard to payment of brokerage. He has also deposed that the first written communication for seeking brokerage was made by plaintiff to defendant in July/ August 2019. He had not signed the MoU dated 21.02.2019, which is Ex. PW 1/1. He has also not signed the lease executed between the defendant and M/s. Ledure Lighting. He has also not signed on the invoice dt. 11.09.2019 which is mark PW 1/3. He has also admitted that he has not sent any written communication to the defendant from his personal email id or his personal letter. He has admitted it to be correct that he had received the information provided to him by the plaintiff regarding CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 26 of 43 documents. He has also admitted it to be correct that he had collected whatsapp chat between Sh. Amrit Sagar and Sh. Anil Mittal, which were provided to him by Sh. Anil Mittal. He had also admitted it to be correct that he has collected documents provided to him by Sh. Anil Mittal. He has denied that he is deposing falsely at the instance of plaintiff.
43. Sh. Ankit Mittal has been examined as PW3, vide his affidavit Ex.PW3/A. He has testified that he is the son of the plaintiff has been actively involved in the real estate business of Sh. Anil Mittal. He has also deposed that Sh. Anil Mittal in the brokerage and consultancy services in the filed of real estate in the NCR region for the last 20 years and the plaintiff has reputed image in the real estate market. He has further testified that V.V.N& Trading Pvt. Ltd., is the owner of the of the property bearing no. A-40, Sector 58, Noida and in the beigning of year, 2019, the defendant were looking for renting/ leasing out the said property and Sh. Anil Mittal is having business relations with the owners/employees of V.V.N.& Trading Pvt. Ltd., and Sh. Anil Mittal had offered his services for finding suitbale lessee for the said property. This witness has also deposed that Sh. Anil Mittal was in touch of the top officials of defendant company. He has further testified that after several efforts of plaintiff, the was deal finalized between the defendant company and M/s Ledure Lightening Ltd. of the above said property and after several negotiations, a Memorandum of Understanding dated 21.02.2019 was executed between the defendant and lessee. He has also testified that on the basis of MOU dated 21.02.2019 a lease dated 11.03.2019 was executed between the CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 27 of 43 defendant and lessee and one Sh. Manoj Kumar (employee of the plaintiff Anil Mittal) had witnessed the same and all the formalities of the execution of the said lease deed were processed by the plaintiff and due to the efforts of the plaintiff, rent was fixed as Rs. 9,50,000/-.
44. He has also testified that the plaintiff was in touch of the official of the defendant company and M/s Ledure Lightining Ltd. and various emails were sent by this witness to the officials of the defendant company and M/s Ledure Lightening Ltd., for execution of the deal.
45. He has also testified that the plaintiff raised invoice on dated 11.09.2019 and the plaintiff is sending reminder to the defendant for his brokerage amount to the defendant and since 11.09.2019, the plaintiff was sending reminders, but, the outstanding due are yet to be cleared. He has also further testified that even after repeated reminders on email, whatsapp and other modes, the defendants failed to pay the amount of Rs.19,00,000/-. He has further testified that when no response was received from the defendant, then the plaintiff has issued legal notice dated 30.05.2022 and demanded of the payment of outstanding dues.
46. He was cross-examined by the Ld. Counsel for the defendant and during his cross-examination, he has deposed that he is the son of the plaintiff. There was no written contract between the plaintiff and the defendant. Lease was registered in the month of March 2019. There was no written communication from the side of plaintiff CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 28 of 43 regarding payment of commission prior to registration of the lease. He has voluntarily deposed that the communication to this effect was verbal. He has also deposed that demand for commission was made for the first time in writing in month of August 2019. He has denied that the plaintiff was the broker of the tenant i.e. Ledure Lighting and not of the defendant. He has also denied that the defendant had made it very clear in the beginning itself that it would not pay the commission and would rather let go the deal than to pay the commission. He has admitted it to be correct that the plaintiff has taken commission from M/s Ledure Lighting. He has seen cross- examination of his father Sh. Anil Mittal PW-1 recorded on dated 22.07.2023 and he has also deposed that at points 'A' to 'A' he had deposed that he has received commission of Rs.3,50,000/- from M/s Ledure Lighting. he has admitted it to be correct that the amount of Rs. 3,50,000/-is equivalent to 11 days of monthly rent as per the lease deed. He has denied that the plaintiff has made a false claim in the suit. He has denied that he has deposed falsely at the instance of the plaintiff.
47. The plaintiff did not examine any other witness and closed his evidence.
48. The defendant has examined it's authorized representative Sh. G.V. Sharma as DW1 vide his affidavit Ex. DW1/A. He has deposed on the similar lines as that of the written statement of the defendant. He has relied upon the following documents:-
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 29 of 43
(a) Certified copy of the Resolution of Board dated 03.11.2022 Mark DW-1/1.
(b) Copy of E-mail dated 09.09.2019 Ex.DW-1/2. (c) Copy of E-mail dated 11.12.2019 Ex.DW-1/3. (d) Copy of E-mail dated 02.01.2020 Ex.DW-1/4. (e) Certificate under Section 65 B of the Indian Evidence Act Ex.DW-1/5.
49. He was cross-examined by Ld. Counsel for the plaintiff and during his cross-examination, he has deposed that he does not remember as to where his affidavit was prepared. He had gone before the Oath Commissioner for attestation of the affidavit. His Advocate had prepared the affidavit on which he has signed. He has not placed on record any Resolution of Board of defendant company to show that he was ever the authorized signatory under the lease deed Ex.PW-1/2. He has also deposed that the plaintiff Sh. Anil Mittal did not produce any document before him to show that he was representative of M/s Ledure Lighting Ltd. He has also deposed that he does not remember for how long he was looking for tenant for the property bearing no. A-40, Sector-58, Noida. The said Property was not leased out to any person before M/s Ledure Lighting Ltd. He met the plaintiff for the first time during leasing of the property to M/s Ledure Lighting Ltd. He has denied that he knows the plaintiff from the year 2017. The mobile number 9958268080 belongs to him. He does not remember whether the plaintiff had sent WhatsApp messages to him since 2017. He knows that the plaintiff is a property dealer of Noida. He has also deposed CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 30 of 43 that no document was executed by him informing the plaintiff that he would not be entitled for any brokerage. No invoice was raised by the plaintiff regarding brokerage. The plaintiff did not send any e-mail to him in September 2019 demanding brokerage amount. He has denied that since beginning he was aware that the plaintiff was entitled for brokerage from the defendant. He has voluntarily deposed that no brokerage was payable to the plaintiff. He has denied that the defendant for the first time made a denial for payment of brokerage in December 2019 after the plaintiff raised his invoice. He has also deposed that other persons had made inquiries for the property. He has also deposed that he does not remember the names of those persons/organizations. He has also deposed that other properties of the defendant are also on lease. He has also deposed that there are generally two marginal witnesses to a lease deed. He has admitted it to be correct that that generally one witness is from the side of the lessor and the other witness is from the side of the lessee. Same pattern was followed in lease deeds executed by the defendant company. When the the lease deed Ex.PW-1/2 was shown to this witness, then he has deposed that he does not know Sh. Manoj Kumar whose name is on page 11 at Serial No.1 as witness No.1. He has also deposed that the witness No.2 Sh. Vaibhav Bansal is the Director of M/s Ledure Lighting Ltd. He has denied that Sh. Manoj Kumar was a witness on behalf of the plaintiff. When the Memorandum of Understanding Ex.PW-
1/1 was shown to the witness, then on seeking the same, he has admitted that this document was executed between the defendant and M/s Ledure Lighting Ltd. He has also admitted that the plaintiff CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 31 of 43 Sh. Anil Mittal is the witness on page 2 thereof. He does not remember whether the plaintiff was witness on behalf of both the parties. When, the printouts of WhatsApp messages Ex.PW-1/4 were shown the witness, then on seeing the same, he had deposed that he does not remember whether the WhatsApp message at page 39 was sent to him by the plaintiff. He has admitted it to be correct that the plaintiff had several meetings with Sh. L. D. Mittal, Director of the defendant company regarding the lease. He has denied that during these meetings brokerage payable to the plaintiff was fixed. He has denied that the plaintiff had arranged for renovation of the property before the lease was executed on behalf of M/s Ledure Lighting Ltd. He has Voluntarily deposed that it was done by the defendant company. He has admitted it to be correct that discussion regarding renovation of the property took place with the plaintiff. He has denied that requisite formalities before Noida Authority for the lease were done by the plaintiff. He has denied that a broker is entitled to brokerage from both the parties. He has denied that he has deposed falsely.
50. Sh. Manish Kumar Lodhi has been examined as DW2 vide his affidavit Ex. DW2/A, who has testified that he is the authorized representative of the defendant and duly authorized by Resolution of Board dated 25.11.2023 to appear and deposed in the court. He has also testified that vide Resolution of Board dated 03.11.2022, the defendant company had authorized Ms. Shalini Tyagi to represent the defendant company in the present case and to do all such acts/ deeds necessary in this regard. He has also testified that due to some CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 32 of 43 unavoidable circumstances, this Shalini Tyagi unable to depose before this Court. He has also deposed that original minutes book of the defendant for the relevant period, when the resolution of board dated 03.11.2022 was passed in favour of Ms. Shalini tyagi was also brought by him. He has been relied upon the following documents i. Board Resolution dated 25.11.2023 Ex. DW2/1.
ii. Board Resolution dated 03.11.2022 Ex. DW2/2.
iii. Attested copy of Minute book Ex. DW2/3 (OSR).
51. He was cross-examined by Ld. Counsel for the plaintiff and during his cross-examination, he has deposed he is working as Deputy Manager in the defendant company since the year 2019. The minutes of meeting Ex. DW2/3 were not prepared in his presence and he does not know who presided over the meeting dated 03.11.2022.
52. The defendant did not examine any other witness.
53. Since in the case in hand the plaintiff has sought to recover Rs.19,00,000/- alongwith pendent lite and future interest @ 18 % per annum till the realization of the said amount alongwith the cost of the suit so, the burden of proving of issue no.1 was on the plaintiff. The plaintiff has claimed in the Para No. 4 (C) of the plaint that at the request of defendant no.2, the plaintiff had agreed for two months rent as his brokerage/ commission. The perusal of the record shows that there is only one defendant in this case, which is M/s VVN Trading Pvt. Ltd. So, the pleadings is found to be vague. It is also worthwhile to mention here that in para 4(C) of the plaint, the plaintiff has also CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 33 of 43 averred that such brokerage / commission for two months rent was agreed by the plaintiff at the request of defendant no.2 in the meeting held in the month of January, 2019 and claimed that the said meeting was attended by Sh. G. V. Sharma (General Manager of the defendant), Sh. Ankit and Sh. Pranav (both directors of M/s Ladure Lighting Ltd.) for the lessee company and the plaintiff. Since the plaintiff has asserted that the defendant had agreed to pay his brokerage/ commission equivalent to the amount of two months rent, so it was incumbent on the part of the plaintiff to bring on record some cogent evidence to prove that the defendant had agreed to pay 02 months rent, as brokerage/commission to him. No doubt that the plaintiff has examined himself as PW1 and he has also deposed on the similar line as that of his plaint. The Ld. Counsel for the plaintiff has submitted that the plaintiff has relied upon the documents i.e. the photocopy of the Memorandum of Understanding dated 21.02.2019 Ex.PW1/1 and photocopy of lease deed dated 11.03.2019 Ex.PW1/2 and submitted that plaintiff (Anil Mittal) is witness to the MOU Ex.PW1/1 and one Sh. Manoj Kumar (who is the employee of the plaintiff) is the witness to the lease deed Ex.PW1/2 and submitted that since this plaintiff had witnessed the MOU Ex.PW1/1 entered into between the defendant and M/s Ladure Lighting Ltd. So, it may be inferred that the plaintiff had witnessed the said documents, as he was to get his brokerage/ commission and submitted that since Manoj Kumar (who had witnessed the lease deed Ex.PW1/2) is the employee of the plaintiff, in view of the same, Sh. Manoj Kumar had witnessed the said lease deed, on behalf of the plaintiff. The counsel for the plaintiff has also submitted that in view of the signature of the plaintiff CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 34 of 43 on the MOU Ex.PW1/1 and signature of his employee on the lease deed Ex.PW1/2, it is clear that plaintiff and his employee were present at the time of execution of these documents because the plaintiff is indulged in the business of brokerage and plaintiff is entitled to get brokerage/commission of Rs. 19,00,000/- from the defendant. But, in the considered opinion of this Court, only in view of presence of the signature of the plaintiff on MOU Ex.PW1/1 as a witness and presence of signature of Sh. Manoj Kumar (employee of the plaintiff) on lease deed Ex.PW1/2, as a witness, it can not be inferred that both of them had witnessed these two documents as brokers or employee of the broker respectively. Even otherwise, during his cross-examination the plaintiff had deposed that he does not have any documents to show that Manoj Kumar is employee of him.
54. The plaintiff has claimed in the plaint that defendant no.2 had agreed to pay his brokerage/commission for two months rent, which is Rs.19,00,000/-, but, as the perusal of the cross-examination of the plaintiff reveals that during his cross-examination, on seeing the document Ex.PW1/DB, he had admitted that he had mentioned his dues were of one month rent of the said property. Thus, the testimony of plaintiff (PW1) is inconsistent to the contents of the plaint and his affidavit Ex.PW-1/A.
55. The plaintiff during his cross-examination has admitted that he has not placed on record any documents to show that defendant had ever to agreed to pay two months rent as commission/brokerage to him and stated that it was verbal. Since the plaintiff has claimed in para 4(c) of CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 35 of 43 his plaint that it was agreed upon by defendant no.2 to pay two months rent commission/brokerage in the meeting held in the month of January, 2019, the defendant has examined Sh. G. V. Sharma as DW1, but, DW1 has denied that the defendant had ever agreed to pay two months rent as brokerage. The plaintiff has claimed in the abovesaid para 4(c) of the plaint that the said meeting was also attended by Ankit and Parnav, (who are the directors of M/s Ladure Lighting Ltd.). But the plaintiff did not choose to examine any of them to prove that in the said meeting the defendant no.2 had agreed to pay two months rent as brokerage to him. The plaintiff has relied upon various whatsapp chats Ex.PW1/4 (Colly) and e-mails Ex.PW1/9 (Colly), but neither whatsapp chats Ex.PW1/4 (Colly.) nor e-mail Ex.PW1/9 (Colly) go to prove that the defendant had ever agreed to pay two months rent as brokerage/ commission to the plaintiff.
56. Since, the plaintiff has claimed that his brokerage / commission was equivalent to two months rent, but, during his cross-examination he has deposed that he has received Rs.3,50,000/- from the lessee, as brokerage/ commission. Thus, the testimony of the plaintiff is found to be inconsistent to his pleading and his affidavit given in the evidence. As in the considered opinion of this court, had there been any brokerage equivalent to the two months rent, the plaintiff could not obtain Rs.3,50,000/- as brokerage / commission from the lessee M/s Ladure Lighting Ltd.
57. The law is well settled the plaintiff has to stand on his own legs to prove his case. The Ld. Counsel for the plaintiff has submitted that CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 36 of 43 the documents relied upon by the defendant can not be looked into, because, Ms. Shalini Tyagi did not come in the witness box who had signed the pleading on behalf of the defendant. The perusal of the record reveals that the defendant had filed five documents alongwith the written statement which are as under:-' (1) Certified true copy of the board resolution dated 03.11.2022 of the defendant/VVN Trading Pvt. Ltd., (2) Copy of email dated 09.09.2019 sent by the plaintiff to the defendant, (3) Copy of email dated 21.09.2019 along with the attachment sent by the plaintiff to the defendant, (4) Copy of email dated 11.12.2019 sent by the defendant to the plaintiff.
(5) Copy of email dated 02.01.2020 sent by the defendant to the plaintiff.
58. The plaintiff was given opportunity by the Ld. Predecessor of this Court vide order dated 23.01.2023 to file the replication and to file the admission and denial of the documents relied upon by the defendant. But, the perusal of the record reveals that the plaintiff did not choose to file any affidavit of admission and denial of documents, which were filed by the defendant, alongwith it's written statement. The Ld. Counsel for the defendant has relied upon the Rule 7 of Chapter 7 of Delhi High Court Rules, 2018 which is as under:-
7. "Affidavit of admission/denial of documents, even if replication not filed.- Irrespective of whether the plaintiff files the replication or not, the plaintiff shall be bound to file affidavit of admission/denial of CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 37 of 43 documents filed by the defendant alongwith the written statement within the time permissible for filing replication. In case the plaintiff fails to file the said affidavit the documents filed by the defendant shall be deemed to be admitted. The court or the Registrar, as the case be, shall exhibit documents admitted by the parties".
59. The Ld. Counsel for the defendant has submitted that above said High Court rule is also applicable to the District Court. He has relied upon the judgment passed by the Hon'ble High Court of Delhi.
60. Since, their Lordship of High Court of Delhi in case Ok Play India Pvt. Ltd. Vs. M/S A.P. DISTRIBUTORS & ANR in CM (M) 346/2020 was pleased to observe as under:--
(6) "It was further submitted that the Delhi High Court (Original Side) Rules, 2018 ('Original Side Rules' for short) were not applicable to the District Courts and, therefore, the filing of the affidavit of admission and denial could not be insisted upon before accepting the written statement. It was submitted that the Court had erred as "Court" as defined in the Original Side Rules, was the High Court of Delhi and not the District Courts and so the rules and procedures prescribed by the Original Sides Rules were not applicable to the District Courts. Rather, the summons that the applicants/respondents had received were only regular summons for settlement of issues and were not "informed summons" which are issued by the High Court of Delhi in terms of the Original Side Rules.".
It was held
15. "At the outset, this Court rejects the argument of the learned counsel for the applicants/respondents that Original Side Rules are not CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 38 of 43 applicable to the District Courts. The District Courts do not function in a vacuum. Specific to the Commercial Courts, it has to be noted that the Annexure E to the Original Side Rules provides for Practice Directions under Section 18 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. The Practice Direction No.1 reads as below:-
16. At the outset, this Court rejects the argument of the learned counsel for the applicants/respondents that Original Side Rules are not applicable to the District Courts. The District Courts do not function in a vacuum. Specific to the Commercial Courts, it has to be noted that the Annexure E to the Original Side Rules provides for Practice Directions under Section 18 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. The Practice Direction No.1 reads as below-
"1. These Practice Directions are issued by the Court in exercise of powers conferred under Section 18 of the Commercial Courts Act to supplement the Delhi High Court (Original Side) Rules, 2018, the provisions of Chapter II of the Commercial Courts Act or the Code of Civil Procedure, 1908, in so far as such provisions apply to the hearing of commercial disputes of a specified value. said Act, as applicable, shall apply to all suits/ original proceedings in relation to "commercial disputes", as defined under Section 2(c) of the Commercial Courts Act."
(Emphasis added)
16. Furthermore, these Practice Directions apply to not only the Commercial Division (i.e., of the High Court) and the Commercial Appellate Division, but also to the Commercial Court. A Commercial Court has been defined under Section 2(1)(b) the Commercial Courts Act, 2015 as one constituted under sub-section 1 of Section 3 of the Act. The same is reproduced herein below-
3. Constitution of Commercial Courts.--(1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 39 of 43 deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.]
17. The reference to the Commercial Court in the Practice Directions, is therefore, an explicit and clear reference to the District Court which is trying a "commercial dispute" as defined under Section 2 (c) of the Act.
The suit filed by the non-applicant/petitioner for recovery of money on the basis of business transactions and invoices undisputedly involved a commercial dispute. Moreover, the Practice Directions seek to supplement the Original Side Rules alongwith the provisions of Chapter 2 of the Commercial Courts Act, 2015 and the CPC insofar as these provisions apply to the hearing of the commercial disputes of a specified value. In other words, again there is a categoric application of the Original Side Rules to the commercial disputes even in the District Courts. Ignorance of the provisions of the rules cannot come to the aid and assistance of the applicants/respondents.
61. Therefore, as per the Rule No. 7 of Chapter 7 of High Court Rules, in view of non filing of affidavit of admission/denial by the plaintiff regarding the above said five documents, filed by the defendant with the written statement, the same are deemed to have been admitted by the plaintiff and as from the judgment passed by their Lordship of High Court of Delhi in case Ok Play India Pvt. Ltd.
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 40 of 43 (Supra), it is crystal clear that the abovesaid High Court Rules are applicable to the District Courts.
62. No doubt that the plaintiff in support of his case has examined himself as PW-1 vide his affidavit Ex. PW-1/A but, the perusal of the cross examination of the plaintiff reveals that his testimony is inconsistent to the contents of his plaint and affidavit given in the evidence, as discussed herein in above. The plaintiff has also examined Sh. Akhilesh Bhatnagar as PW-2, but this witness during his cross- examination has admitted that there was no written agreement regarding brokerage and similarly the cross-examination of PW3 Mr. Ankit reveals that he had also admitted that there was no written contract between the plaintiff and defendant. Even otherwise, it is not the case of the plaintiff that Sh. Akhilesh (PW-2) or Sh. Ankit (PW-3) had attended the meeting held in the month of January 2019, wherein at the request of defendant no. 2, the plaintiff is alleged to have agreed to take 02 months brokerage and since admittedly Sh. Akhilesh PW2 and Sh. Ankit PW3 (who is the son of the plaintiff) did not attend the said meeting, wherein the defendant no.2 is alleged to have agreed to pay two months brokerage/commission to the plaintiff. So, the testimonies of PW-2 and PW-3 are of no relevance. Since the testimony of the plaintiff is found to be self-contradictory and inconsistent and to his own documents. The lease deed was executed on dated 11.03.2019 and plaintiff during his cross examination had admitted that for the first time he had demanded 02 months as brokerage from the defendant vide email dated 28.08.2019 and thus delay in sending such email by the plaintiff to defendant also creates CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 41 of 43 clouds of suspicion. Had there been any agreement between the parties to the present lis for payment of commission/brokerage equivalent to 02 months rent, then the plaintiff could send such email to the defendant soon after execution of the lease deed and in view of delay in sending such email, the testimony of the plaintiff becomes suspicious, so, the same does not inspire any confidence.
63 Since, the the plaintiff did not file any affidavit of admission/denial regarding the Resolution of Board dated 03.11.2022, which was filed with the written statement, so, the same is deemed to have been admitted. So, there is no infirmity in the signing of verification of the written statement by Ms. Shalini Tyagi.
64. This Court has gone through the judgments relied upon by the Ld. Counsel for the plaintiff, but the facts of the said cases are different from the facts of the present case, so, the same are of no help of the plaintiff.
65. Since the plaintiff claimed in Para 4(c) of the plaint that on the request of the defendant no. 2, the plaintiff had agreed for 02 months, as brokerage/commission, and plaintiff has also claimed his brokerage was finalized in the meeting held in the month of January, 2019 But, there is only one defendant in this case, which is M/s VVN Trading Pvt. Ltd., so, the pleading of the plaintiff is found to be vague, the affidavit Ex. PW-1/A given in the evidence is also found to be vague. Since the testimony of the plaintiff is also found to be inconsistent to CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 42 of 43 the contents of his plaint and his affidavit, so, the same does not inspire any confidence.
66. The cumulative of the above discussion is that the plaintiff is failed to prove on record that defendant had ever agreed to pay Rs. 19,00,000/- as brokerage/commission. So, the plaintiff is not entitled to recover the suit amount i.e. Rs. 19,00,000/- from the defendant as claimed, therefore, issue no. 1 is decided against the plaintiff and in favour of the defendant.
RELIEF
67. In view of the findings of this court, on issues no.1 against the plaintiff and in favour of the defendant. Suit of the plaintiff for recovery of Rs. 19,00,000/- along with interest and cost is hereby dismissed, being devoid of merit. No order as to cost. 68 Decree sheet be prepared accordingly.
69. File be consigned to record room.
PAWAN Digitally
by PAWAN
signed
KUMAR KUMAR MATTO
Date: 2024.12.23
MATTO 17:14:57 +0530
Announced in the open (PAWAN KUMAR MATTO)
court on this day DISTRICT JUDGE
of 23.12. 2024 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS, DELHI
CS (comm.) No. 548/2022 Sh. Anil Mittal vs. M./s VVN Trading Pvt. Ltd. Page no. 43 of 43