Bangalore District Court
Capt. Aditya Prasad Jagaty vs Col Harish Chandra Joshi on 29 January, 2025
KABC170012552023
IN THE COURT OF LXXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-85) (COMMERCIAL COURT),
BENGALURU
DATED THIS THE 29th DAY OF JANUARY 2025
PRESENT
SRI.RAMAKANT CHAVAN,
B.Com., LL.B.(Spl)
LXXXIV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.632/2023
PLAINTIFFS:
1. Capt. Aditya Prasad Jagaty,
S/o Late Kishore Chandra Jagaty
Aged 64 years
2. Nishant Jagaty,
S/o Capt. Aditya Prasad Jagaty,
Aged 32 years
Both R/at RBD Steel Water
Villa - 120, Silver County Road,
Harlur Road, Bengaluru - 560 068
(By Sri.R. Madhusudhana Reddy, Adv.)
AND
DEFENDANT:
Col. Harish Chandra Joshi (Retd.)
S/o Late R. D. Joshi,
Aged 59 years,
B7-704, Sandeep Vihar,
AWHO, Kanmangala
Whitefield, Bengaluru - 560 068
(By Sri.I.M.Devaiah, Adv.)
2 Com.O.S.No.632/2023
Date of Institution 29.05.2023
Nature of suit For recovery of money
Date of First Case 15.02.2024
Management Hearing
Date of commencement of 06.03.2024
recording of evidence
Date on which judgment
29.01.2025
pronounced
Time taken for disposal Years Months Days
1) From the date of First Case 00 11 14
Management Hearing
2) Total duration 01 08 00
LXXXIV Addl. City Civil & Sessions Judge
(CCH-85) Commercial Court, Bengaluru
JUDGMENT
This is a suit filed by the plaintiffs against the defendant seeking direction to pay an amount of Rs.3.00 lakhs towards the amount invested and sum of Rs.16.50 lakhs towards compensation for damages and mental agony, as also mandatory injunction restraining the defendant from carrying out the project with Defence Research and Development Organization (DRDO) and cost of the suit.
3 Com.O.S.No.632/20232. Brief facts of the plaintiffs' case are that, the plaintiff No.1 is a retired Army Officer and he had reached ranking of Captain in Army. He is doing the business in the field of Security Service Personnel and allied services. The plaintiff No.2 is the son of the plaintiff No.1, businessmen and a young Entrepreneur having expertise knowledge in the business of providing Service Security Personnel.
It is further pleaded that, the defendant is also a retired military personnel and he had shown interest in the business carried on by the plaintiffs and approached them. On 01.02.2022, the defendant approached and requested the plaintiffs, they have entered into a Business Agreement to commence business together. The business is being run in the name and style of Harish Chandra Joshi Security Agency. The object of the business is for providing of security service personnel. In order to conduct business, the plaintiffs have opened a bank account and rented a house. They have invested an amount of Rs.3.00 lakhs in the establishment of the business upon the assurance given by the defendant. The rental Agreement also entered into by the plaintiffs on behalf of the defendant for the business purpose.
It is further pleaded that, the plaintiffs have taken up the responsibility for obtaining Private Security Agency Regulation Act (PSARA) License, procurement of shops and establishment registration, obtaining Professional tax account, ESIC, EPF, GST 4 Com.O.S.No.632/2023 and other statutory requirements, provisioning of the uniform to Guards, Field management and responding to queries of principal employer. The plaintiffs as per the Agreement have invested One month wages including statutory dues towards capital investment.
It is further pleaded that, after a great deal of effort, the plaintiffs succeeded in securing a tender from the DGRMD (Director General and Re-settlement Ministry and Defence). The plaintiffs applied and procured all necessary certificates and licenses. They have received both PSARA License and an Empanelment Certificate. The plaintiffs oversaw the tender for the DRDO (Defence Research and Development Organization) and obtained an order and deployed 49 Guards. He has produced all the necessary documents.
It is further pleaded that, as per the Clause 15 of the Agreement, the defendant will get 45% of Service charges after deduction of 2% TDS as his share of profit out of the said business. As per Clause No.17, the plaintiffs will draw their share of profit as Consultancy Fee every month from the said account of the firm. It is also agreed that, Income Tax as applicable will be adjusted from TDS portion which is deducted at 2% from the monthly bill before calculating the profit share of the defendant. The plaintiffs have carried out all their responsibilities. After securing the tender from DGRMD, withdraw himself from carrying out the Agreement and denied being obligated by it. The 5 Com.O.S.No.632/2023 defendant with an ill-motive to take the complete advantage and 100% share in the profits from out of the tender secured by the plaintiffs, withdrew themselves from the Agreement and further became incommunicado with the plaintiffs.
It is further pleaded that, it was understood that, the defendant has continued with the tender secured from the DGRMD and doing the business. On 24.04.2023, the plaintiffs issued a legal notice to the defendant seeking for continuing the business with them as per the Agreement or seeking for returning the money invested and also towards damages as well as mental agony. The defendant has replied the same on 26.04.2023 to the legal notice through Whatsapp account of the first plaintiff, the defendant in his reply, has admitted that, the plaintiffs have carried out their responsibilities in getting all the licenses, certificates, permissions and all other documents to do the business. But, he has denied the obligations as per the Agreement. The defendant has cheated. It caused not only the financial loss, but, also the physical, mental and emotional trauma due to the breach of promise. Hence, the plaintiffs are constrained to file this suit.
3. After service of summons, the defendant has put its appearance through its counsel and filed written statement. The defendant has denied most of the plaint averments. It is further stated that the suit is not maintainable. The plaintiffs have indulged in suppressing of material facts and also made false 6 Com.O.S.No.632/2023 statements. The plaint is liable to be rejected. The plaintiffs are not entitled for the reliefs. The defendant is an Ex-Servicemen, who has served in Indian Army for about 4 decades. He retired from the rank of Colonel in the month of June 2021. The DGR is an inter service organization functioning directly under the Department of Ex-Servicemen Welfare with a vision to ensure the welfare of the retiring and retired Armed Forces Personnel through the implementation of the Govt. of India sponsored Welfare/resettlement schemes, organize skill development training and provide employment opportunities.
It is further stated that, the scheme sponsored by DGR is security agencies with an empanelled Ex-Servicemen for security services with ESM Officer as a proprietor and other Ex-Servicemen as security Guards. The defendant being a retired Army officer, applied for a Govt. sponsored security agency as his retirement career option, in pursuance to his application being processed by the DGR and he was issued an empanelment Certificate dated 27.07.2022. One of Col.Jahar Kumar Nandy, a retired Officer running a security agency at Kolkata and one of the acquaintances and the 1st plaintiff got in touch with the defendant, as he was looking for a person for liasion work to handle the paperwork for the defendant's Security Agency. The defendant induced by the representation made by the said Nandy decided to hire the services of the plaintiffs to complete the paper works.
7 Com.O.S.No.632/2023It is further stated that, the plaintiff No.1 represented that, he was a consultant and worked with many Ex-Servicemen and taken care of paper work. Believing his words the defendant availed the services of the plaintiff No.1 for the work in Bengaluru. A message was sent on 04.02.2022, the plaintiff No.1 sought some documents for filing an application for a license under the Private Security Agencies (Regulation) Act, 2005. The defendant after his retirement from the service involved in the construction of his house at Pithoragarh - Uttarakhand State and had to stay there from November 2021 to June 2022. This was the Sole reason for the defendant had availed the services of the plaintiffs for doing all the paper work necessary for setting up a Security Agency in Bengaluru. The defendant paid service fees for the services availed from the plaintiffs in cash, the plaintiffs insisted on payment through cash only.
It is further stated that, the plaintiffs informed the defendant that, the security agency would require an office space and telephone connection. The plaintiffs informed that, they had opened an office space for security agency of the defendant in the name of Harish Chandra Joshi Security Agency at Bengaluru and requested for Rs.30,000/- in cash as part of the Security deposit. The said amount was paid to the plaintiffs. The defendant enquired the plaintiffs to share the location and Rental Agreement for his signature, but, the plaintiffs had not shared the same. The plaintiffs demanded Rs.10,000/- monthly in cash towards the rental amount for the office space for his agency, 8 Com.O.S.No.632/2023 which was paid by the defendant once he came back to Bengaluru. On 27.03.2023, the defendant visited the alleged office space and he was shocked to find out that, the office space was a residential flat premises, which was occupied by Two individuals as the Tenants and paying rent of Rs.10,000/- to the plaintiffs. In the month of January 2023, the defendant was given to understand that, the plaintiff No.1 was a Scamster from his acquaintance, since the plaintiff No.1 involved in defrauding Ex- servicemen. When the defendant confronted the same, the plaintiff No.1 threatened to give up his Security Agency to run independently. The defendant refused to assign his security agency, the plaintiff tried to pressurize the defendant through his illegal means.
It is further stated that, the plaintiffs have issued a legal notice on 24.04.2022 through Whatsapp messages dated 25.04.2023 and an email on the same date, calling upon him to do the business as agreed upon in the Agreement and pay the amount invested by the plaintiffs. After receipt of the notice, the defendant replied the same through an email calling upon the plaintiffs to forward the scanned copies of all the supporting bills and vouchers of expenses incurred by them in assisting him, which he intended to claim from the defendant within Ten days. The plaintiffs have not come forward with the required documents. The defendant is ready and willing to pay the expenses incurred by the plaintiffs subject to providing supporting bills and vouchers for the expenses incurred. The 9 Com.O.S.No.632/2023 defendant has invested approximately Rs.25.00 lakhs for procuring and running his security agency and also employed staff for running the same. It is further stated that, the plaintiffs have harassed and threatened the defendant to handover his security agency and also coerced and forced to deliver the security agency. The DGR empanelled Ex-servicemen Security agency can be run by the officer himself not to be handed over to any individual in any circumstances to run the same in terms of the Notification dated 15.05.2022 issued by the Department of Ex-Servicemen Welfare, Ministry of Defence, Govt. of India. Hence, prays for dismissal of the suit of the plaintiff.
4. Based on the above, this court has framed the following:
ISSUES
1. Whether the plaintiffs prove that the defendant has entered into an agreement with them on * 01.02.2022 for running common business?
2. Whether the plaintiffs prove that the defendant took 100% share in the profits out of the Tender secured by them?
3. Whether the plaintiffs further prove that they have invested Rs.3.00 Lakhs for establishing the business?
4. Whether the defendant proves that he had invested Rs.25.00 Lakhs for Security Agency?
5. Whether the defendant proves that he had paid Rs.30,000/- as part of security deposit in the name Harish Chandra Joshi, Security Agency?10 Com.O.S.No.632/2023
6. Whether the plaintiff is entitled for the reliefs sought?
7. What order or decree?
* Corrected as per the pleadings
5. To prove the case, the plaintiff No.1 is examined as PW1 and Three more witnesses are examined as PW2 to PW4, and got marked some documents at Ex.P1 to P70. The defendant is examined as DW1 and also produced the documents at Ex.D1 to D17.
6. The learned counsel for the parties have submitted his written arguments.
7. My findings on the above issues are:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: In the negative Issue No.5: In the negative Issue No.6: Partly in the affirmative Issue No.7: As per the final order for the following REASONS
8. Issue Nos.1 to 3: The burden of proving these Issues lies on the plaintiff. The plaintiff No.1 has filed his affidavit and he is examined as PW1. He has narrated the contents of the plaint in his affidavit. He has produced some documents at Ex.P1 11 Com.O.S.No.632/2023 to P70 i.e. Agreement dated 01.02.2022, rent agreement, copy of the GST certificate, Empanelment certificate, license issued by the Govt. of Karnataka, letter issued by Sub Regional Office, ESIC, letter issued by EPF, email sent by Ranjit Srivastava, sponsorship for security and allied services, letters by Harish Chandra Joshi, copy of Form No.C, email sent by A.Srikanth, Form No.4, online invitation for bids, legal notice, postal documents, reply by the defendant, certificate U/Sec.65B of the Evidence Act, vouchers, blank cheque, photos, MOU, affidavits, bank statement and bills etc.
9. In the cross examination of PW1, it is forthcoming that, he was working in Indian Army and retired in the year 1992. Since 2003 he is running Security Agency, earlier it was in Calcutta and having a branch in Bengaluru since last Two years. He has admitted that, individual officers are collaborating with him to run their Security Agency and also admitted that, he had entered an Agreement with those individual officers. It is further admitted that, the individual officers empanelled with DGR for running a Security Agency and also entered into an Agreement with him. Only through Col. Jahar Kumar Nandy, he introduced to the defendant. He had communication with the defendant over telephone and some times the defendant used to come to his office also. He has identified the Ex.D1 i.e. Whatsapp message dated 04.02.2022. He has denied that, he had no communication with the defendant.
12 Com.O.S.No.632/202310. It is further forthcoming that, he has license under PASARA [Private Security Agency (Regulations) Act, 2005]. He is fully acquainted with all the procedures to obtain license from PASARA and admitted that, he help the individual officers to comply with all the works necessary to obtain PASARA license and only after entering into an Agreement. He himself had purchased the stamp papers for preparation of Ex.P1 and P2. Ex.P1 was prepared by his clerk and it was in Bengaluru. Col.Narayan and Alok Sahoo were also present at the time of Ex.P1 (Agreement dated 01.02.2022). On the date of Ex.P1, the defendant was not in the business of Security Agency. He has admitted that, on the date of Ex.P1 the defendant was not empanelled with DGR nor had necessary license to operate the security agency. He has denied that, the defendant was not residing in the address mentioned in Ex.P1 on the date of execution of Ex.P1. He has further admitted that, at the time of execution of Ex.P1, there was no capital investment by anyone of the parties. The exact amount was not mentioned in Ex.P1, because what will be the exact amount spent for obtaining all the licenses, it will not be ascertained at that time. No names of the witnesses are forthcoming in Ex.P1. He has further admitted that, he never worked from office as mentioned in Ex.P2. The Ex.P2 is in his custody and executed in his office only. He has further admitted that, the defendant had entered into a Rent Agreement as per Ex.P2 in his individual capacity. It was notarized in Koramangala.
13 Com.O.S.No.632/202311. In the further cross examination, it is forthcoming that, he has admitted that, the defendant has sent an email on 03.02.2023 through his personal ID to the ID of Security Agency. The Ex.P9 is an attachment to Ex.P8 i.e. copy of the email sent by Ranjit Srivastava. The Clause No.8 of Ex.P9 is correct and Clause No.8 mentioned in Ex.P14 is also correct. The copy of the Ex.P1 was shared with the defendant only after its execution. But, prior to that, the draft copy was sent. He has also admitted that, there were no employees employed by on behalf of the defendant's Security Agency during the month of March 2022 to April 2022. He has also admitted the Ex.D2 i.e. the Notification dated 15.05.2022 issued by the Department of Ex-Servicemen Welfare, Ministry of Defence, Govt. of India. The defendant put his signature to Ex.P62 i.e. the MOU dated 24.03.2022. He has denied the other suggestions.
12. The PW2 to PW4 are the persons supporting to the case of the plaintiffs. They have filed their affidavits. They have not produced any documents. In the cross examination of PW2, it is forthcoming that, he is working with plaintiffs' firm as Field Officer. He has not filled the Forms for preparation of PASARA License, but, he had provided necessary documents. In the cross examination of PW3, it is forthcoming that, he is also working with plaintiffs' firm, the plaintiffs firm started in the year 2013 at Bengaluru, earlier it was in Calcutta. He has admitted that, he has not stated in his affidavit that, "the defendant is supposed to return all the original documents back to the plaintiffs." In the 14 Com.O.S.No.632/2023 cross examination of PW4, it is forthcoming that, he is also working as Field Officer with the plaintiffs firm. He does not aware who has spent Rs.1.10 lakhs for licensing work of the defendant. They have denied the other suggestions.
13. The defendant is examined as DW1 and produced documents at Ex.D1 to D17 i.e. Whatsapp messages, Notification dated 15.05.2022, copy of the guidelines for operation of DGR empanelled Ex-servicemen, copies of empanelment certificate, Whatsapp messages, bank statement, appointment letter, mobile tracking, certificate from SBI Bank, Certificate U/Sec.65B of the Evidence Act and bank statements.
14. In the cross examination, it is forthcoming that, he is from Uttarakand and he knows Col.Jahar Kumar Nandy and he is also having a Security Agency at Calcutta. He has admitted that, he is not having any prior experience regarding running of Security Agency. Col.Jahar Kumar Nandy himself approached him to take consultancy servicing from the plaintiff No.1 and also admitted that, he (DW1) sought help from the plaintiff No.1 for security agency over telephone. The plaintiff No.1 was running several security agencies in Karnataka. On the request of the Col.Jahar Kumar Nandy, he hired the plaintiff No.1 as his consultant.
15. In his further cross examination, it is forthcoming that, he has denied the signature on Ex.P1 (which is marked at Ex.P1(a) for identification). He has admitted his signature on 15 Com.O.S.No.632/2023 vakalath. He has also denied his signatures on Ex.P2 [which are marked at Ex.P2(a) to (defendant)]. The Ex.P54 does not belong to him but, it was sent by the plaintiff No.1. He is also retired person from Army, retired in the year 2021. He had an idea to start security agency at the time of his retirement. He was aware of the procedures for granting license and documents required. He has further admitted that, he discussed with regarding Security Agency with Col.Jahar Kumar Nandy. He introduced the plaintiff to him. He has also admitted that, he agreed to take the assistance of the plaintiffs to apply for security agency on the advise of Mr.Nandy to get PASARA.
16. In the further cross examination, it is forthcoming that, he met the plaintiff No.1 over telephone and plaintiff No.1 had sent a Whatsapp message and asked him to send the original documents. The plaintiff No.1 has provided clerical help to get in the documents through online. He has also admitted that, during that time he engaged the plaintiff No.1 for his assistance. He has got GST certificate on 27.07.2022 i.e. Ex.P3. He has admitted that, the address mentioned in Ex.P66 i.e. bank statement belongs to him. The Ex.P54 is a cheque belongs to his account. Once again he has denied his signature on Ex.P1 and stated that there may be Clause No.7 regarding authorization of operation of bank account. He has identified his signature on Ex.P16 i.e. copy of the online invitation of Bids and signature also. The monthly average profit is around Rs.80,000/- after 16 Com.O.S.No.632/2023 deducting TDS. The e-stamp papers were purchased by his agency on 22.03.2022 and 24.03.2022.
17. In the further cross examination, it is forthcoming that, he had received tender from ADE, DRDO for employment of 49 security guards. It was in his agency's name. Till today he is doing Security agency and also admitted that, he is doing with ADE and DRDO. He received payments from DRDO. The Ex.P8 is an email regarding DRDO tender. He is getting payments from DRDO and made payments to the security guards. He has not produced bank statement regarding these payments. Though he has raised invoices for seeking payments from DRDO, but, not produced the same. He has admitted the Ex.D16 and D17 - these are the statements of bank accounts. He has admitted the transactions mentioned in Ex.P16 and P17. He received amounts from DRDO on several dates in the months of January, February, March, May, July, September and November 2024. He has denied that, he is liable to pay 55% of the amounts received from DRDO. He has denied the other suggestions.
18. The learned counsel for the plaintiffs has submitted his written arguments basing on the plaint averments, evidence of PW1 to PW4 and DW1 and the documents referred above. He has pointed out towards the Ex.P2 i.e. the Rental Agreement dated 10.03.2022 and Agreement between the plaintiffs and the defendant at Ex.P1. The defendant has denied his signatures on these Two documents. He has also pointed out towards the defence taken by the defendant. The plaintiffs have spent 17 Com.O.S.No.632/2023 Rs.1.00 lakh for the purpose of securing the ADR-DRDO tender, recruitment and training of security guards and provision of Uniforms which are mandatory under law. In all the plaintiffs have incurred more than Rs.3.00 lakhs to set up and carry out the defendant agency. But, the plaintiffs have restricted their claims only to Rs.3.00 lakhs under the head of expenses. The act of the defendant withdrawing from the business of running the security agency along with the plaintiffs and denying the plaintiffs their share i.e. 55% of the profits and monthly consultancy fee, as constrained the plaintiffs to file the suit.
19. He has also drawn my attention towards the terms and conditions of Ex.P1 and P2. The plaintiffs had entered into an Agreement with the defendant on 01.02.2022 as per Ex.P1 and the same is produced. The plaintiffs also examined Three witnesses on their behalf. In order to substantiate the Agreement, the plaintiffs sought for forensic examination of the defendant's signature in Ex.P1. The Forensic report dated 08.11.2024 has been received by the court, and conclusively confirmed that, the signature of the defendant is forthcoming in Ex.P1 i.e. the Agreement. The Ex.D16 and D17 are the bank statements, the defendant obtained the amount from ADE - DRDO from 23.06.2023 to 28.11.2024, received an amount of Rs.4,59,57,848/-. The bank statements produced by the defendant reflect the receipt of amount from IOC Tender from 09.08.2023 to 05.11.2024, the defendant has received an amount of Rs.17,15,185/-. The plaintiffs also produced original 18 Com.O.S.No.632/2023 vouchers reflecting the expenses for running the defendant agency. It amounts to Rs.1,92,829/- these are at Ex.P22 to P53. He has pointed out towards the provisions of Sec.73 of Indian Contract Act. If the defendant honoured and performed his part of contract, the share of 55% for which the plaintiffs are entitled to, will be more than what the plaintiffs are claiming in the suit. There is breach of contract committed by the defendant. Hence, the plaintiffs are entitled for the cost of the suit.
20. Per contra, the learned counsel for the defendant has submitted his written arguments and he has pointed out towards the defense made by the defendant. He has also drawn my attention towards the evidence of PW1 to PW4 and documents as well as the evidence of DW1 and the documents. It is also stated that, the Ex.P1 is against the Notification dated 15.05.2022, it is void and unlawful. The plaintiffs cannot claim compensation for the non performance of unlawful contract. The violation of any guidelines of the employment will result in disempanelment of the Security agency in terms of Clause 17(b). The plaintiffs have failed to assert that the contract is breached by the defendant. He has pointed out towards the plaintiffs have admitted that, there was no capital investment by any of the parties at the time of execution of Ex.P1 and also admitted that, there were no employees employed on behalf of the plaintiff firm.
21. He has also pointed out towards the provisions of Sec.73 of the Contract Act. The plaintiffs have not suffered any 19 Com.O.S.No.632/2023 loss or damage and the alleged contract was not breached by the defendant. The burden of proof lies on the plaintiffs to show that, damage has been sustained and what shall be measure of converting the loss into money. He has further pointed out that, the documents at Ex.P22 to P53 are produced without any pleadings and cannot be admitted in the evidence. He has also pointed out towards the cross examination of PW1 and DW1. The PW2 and PW4 are admittedly the earlier employees of the plaintiffs. It is the case of the plaintiffs that, they have succeeded in securing tender from the DG and Resettlement Ministry and Defence. The PW1 has also admitted the Clause No.8 of the Ex.P9 and Clause No.8 mentioned in Ex.P14. The plaintiffs have not proved the case as pleaded. They are not entitled for any claims.
22. During his arguments, he has relied upon a decision reported in 2022 SCC Online KER 826 in Devchand Construction, rep. by its Proprietor Vs UOI, rep. by Deputy Chief Engineer.
23. After going through the written arguments by the parties, I have also gone through the evidence and pleadings of the parties. The admitted fact is, both the plaintiff No.1 and defendant were served in Indian Army.
24. The case of the plaintiffs is that, the defendant is a retired military person and showed interest in the business carried on by them and approached them to do the business jointly. As per the plaintiffs there was an Agreement dated 20 Com.O.S.No.632/2023 01.12.2022 between the defendant and themselves. It is produced at Ex.P1. As per the Agreement, the plaintiffs taken up the responsibility of obtaining PASARA license and they have invested One month wages including statutory dues towards EPF, ESI, Professional Tax and GST. The plaintiffs succeeded in securing a tender from the DG and Resettlement Ministry and Defence and applied and produced all necessary certificates. The tender was secured on 03.02.2023 as per the terms of the Agreement dated 01.02.2022. The defendant withdrew himself from the obligations of the Agreement on 03.02.2023.
25. I have gone through the documents produced on behalf of the plaintiffs. The Ex.P1 is the Agreement dated 01.02.2022 and Ex.P2 is the Rent Agreement dated 10.03.2022. The DW1 has denied his signatures on these documents. The Ex.P3 is the GST certificate, Ex.P4 is the copy of the Employment Certificate. The Ex.P5 to P7 are the copies of license issued by Govt. of Karnataka, letter issued by Sub Regional Office ESIC, letter issued by EPF. The Ex.P22 to P53 are the vouchers of different dates. The Ex.P66 is the copy the bank statement, Ex.P62 is the MOU dated 24.03.2022, Ex.P55 to P61 are the photos.
26. The Ex.P1 is the Agreement dated 01.02.2022, I have gone through the terms and conditions mentioned herein. The DW1 has denied his signature which is marked at Ex.P1(a). The DW1 has even denied the signatures on Ex.P2 also. The plaintiffs 21 Com.O.S.No.632/2023 themselves have filed an application for comparison of the signature of the DW1. The Forensic expert has filed her report dated 08.11.2024. The DW1 has admitted the signature on the vakalath, hence, all these documents i.e. Ex.P1, P2 and vakalath have been sent for comparison. I have gone through the report. A1 to A26 are the admitted signatures. Q1 is the questioned signature. She has opined that, "On the cumulative effect of all the observations taken together, the characteristics in questioned signature (Q1) are observed in the admitted signatures (A1 to A26). Hence, I am of the opinion that, the author of the questioned signature (Q1) is the author of the admitted signatures (A1 to A26)". This is not challenged by the defendant. Hence, it shows that, the plaintiffs and the defendant had entered into an Agreement as per Ex.P1. The Ex.P22 to P53 are the vouchers of different dates. These are in regard to the expenses made by the plaintiffs towards training expenses, office expenses, printing and stationery expenses, consultation fees, telephone charges, security deposit of Rs.30,000/- (Ex.P41), rents, Ex.P55 to P61 are the photographs pertaining to the office of the defendant's Security Agency at No.32/179, 19, Somasundra Palya Main Road, 1st Floor, Door No.104, Bengaluru
- 560 068 and Uniforms. Ex.P62 is the MOU dated 24.03.2022, it is admitted by DW1, it bears the signature of DW1. The Ex.P63 to P65 are the affidavits of the defendant.
27. I have also gone through the documents produced on behalf of the defendant. The Ex.D1 is the copy of the Whatsapp 22 Com.O.S.No.632/2023 message. The PW1 has admitted the same. After perusing the same, it shows that, requirement for applying PASARA license and necessary documents required to be produced along with the Form. The PW1 has admitted the Clause No.2 of Ex.D2. It shows, "The Proprietor will present himself in person for all dealings with the Principal Employers / Prospective Principal Employers. No dealing through representatives even on Power of Attorney / any other letter or document of authorization is permitted." He has also admitted the contents of Ex.P62 that these do not contain the signatures of the defendant. This is the affidavit referred above. I have also gone through the contents of Ex.P62. It bears the signature of the defendant on last page. The Ex.P63 to P65 bear the signatures of DW1.
28. By going through the Ex.D16 and D17 i.e. the bank transaction that, it is clear that the defendant agency has received the amounts from DRDO and DW1 has categorically admitted that, he has received amounts for the period from 26.09.2023 to 21.12.2023 as could be seen in Ex.D16 and received amounts for the period from 03.01.2024 to 28.11.2024 as could be seen in Ex.D17. According to him, he has paid the amounts to the security guards.
29. I have also gone through the decisions relied upon by the learned counsel for the defendant referred above. I have also perused the provisions of Sec.73 of the Contract Act. The Ex.P1 is proved by the plaintiffs by placing cogent evidence. As per the 23 Com.O.S.No.632/2023 terms and conditions of the Ex.P1 the defendant has not acted upon. I have also gone through the provisions of Sec.74 of the Contract Act. The decision does not come to the aid of the defendant in the present facts and circumstances of the case.
30. In view of the discussions made supra, the plaintiffs have proved that, the defendant has entered into an Agreement as per Ex.P1 on 01.02.2022 and also able to prove that, the defendant has taken 100% share in the profits out of the tender secured by it. The plaintiffs have produced the bills/receipts as stated supra and also able to prove that they have invested Rs.3.00 lakhs for establishing the business towards rents, security deposit, and other miscellaneous expenses. The plaintiffs have restricted their claim only to Rs.3.00 lakhs though they have spent more than Rs.3.00 lakhs. Therefore, in the light of discussions made supra, I answer Issue Nos.1 to 3 in the affirmative.
31. Issue Nos.4 and 5: The burden of proving these issues lies on the defendant. The defendant has pleaded regarding investment of Rs.25.00 lakhs for security agency and paid an amount of Rs.30.00 lakhs as part of security deposit in the name of the defendant agency. The defendant has not produced relevant documents regarding deposit of security agency. Therefore, the defendant has failed to prove these issues by placing cogent evidence. Hence, in the light of discussions made supra, I answer Issue Nos.4 and 5 in the negative.
24 Com.O.S.No.632/202332. Issue No.6: The plaintiffs have sought an amount of Rs.3.00 lakhs and compensation for damages and mental agony of Rs.16.50 lakhs and also mandatory injunction from carrying out the project with DRDO and cost of the suit. The plaintiffs have succeeded in proving the Issue Nos.1 to 3. The plaintiffs have not produced cogent evidence to grant compensation for damages and mental agony caused to them due to the illegal acts of the defendant. The plaintiffs are claiming 55% of the profit out of the business of the defendant. The PW1 has deposed in his evidence. The amount spent by the PW1 is Rs.1,91,959/- as per Ex.P22 to P53. But, he suffered metal agony also. He claimed damages too of Rs.16.50 lakhs, but, it is higher side. But, there is no concrete evidence. Hence, it is reduced to Rs.1.00 lakh. Therefore, in the light of discussions made supra, the plaintiffs are entitled for total amount of Rs.3.00 lakhs invested by them and cost of the litigation. Accordingly, I answer the Issue No.6 partly in the affirmative.
33. Issue No.7: In the result, I pass the following :
ORDER Suit of the plaintiffs is decreed in part with cost.
The plaintiffs are entitled for Rs.3.00 lakhs from the defendant.
The defendant is directed to pay the amount as ordered within Three months from the date of this order, failing which the defendant is liable 25 Com.O.S.No.632/2023 to pay future interest at the rate of 6% p.a. till realization.
Draw decree accordingly.
Issue copy of the judgment to the parties through email as provided U/Or. XX Rule 1 of CPC if email ID is furnished.
(Dictated to the Stenographer typed by her directly on the computer, corrected and then pronounced by me in the open court on this the 29th day of January 2025) (RAMAKANT CHAVAN) LXXXIV Addl. City Civil & Sessions Judge, (CCH-85) Commercial Court, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW1 Capt. Aditya Prasad Jagaty PW2 Anand Kuwate PW3 Aloka Ranjan Sahoo PW4 Gobind Bahadur
List of documents marked for the plaintiffs:
Ex.P1 Agreement dated 01.02.2022
Ex.P2 Rent agreement dated 10.03.2022
Ex.P2(a-d) Signatures at Ex.P2
Ex.P3 Copy of the GST certificate
Ex.P4 Copy of the Empanelment certificate
Ex.P5 Copy of the license issued by Govt. of Karnataka
26 Com.O.S.No.632/2023
Copy of the letter issued by Sub Regional Office, Ex.P6 ESIC Ex.P7 Copy of the letter issued by EPF Ex.P8 Copy of the email sent by Ranjit Srivastava Copy of the sponsorship for security and allied Ex.P9 services Ex.P9 Clause 8 in Ex.P9 Ex.P10 Copy of the letter issued by Harish Chandra Joshi Ex.P11 Copy of the Form No.c Ex.P12 Copy of the letter issued by Harish Chandra Joshi Ex.P13 Copy of the email sent by Harish Chandra Joshi Ex.P14 Copy of the email sent by A. Srikanth Ex.P14(a) Clause 8 in Ex.P14 Ex.P15 Copy of the Form No.4 Ex.P16 Copy of the online invitation of bids Ex.P17 Copy of the legal notice Ex.P18 Postal receipt Ex.P19 Returned postal envelop Ex.P20 Reply by the defendant Ex.P21 Certificate U/Sec.65B of the Evidence Act Ex.P22-P53 32 vouchers of different dates Ex.P54 Blank cheque Ex.P55-P61 07 photos Ex.P62 MOU dated 24.03.2022 27 Com.O.S.No.632/2023 Ex.P63-P65 03 affidavits of different dates Ex.P66 Copy of bank statement Ex.P67-P70 04 Bills of different dates List of witnesses examined for the defendant:
DW1 Col. Harish Chandra Joshi List of documents marked for the defendant:
Ex.D1 Whatsapp messages dated 04.02.2022 Notification dated 15.05.2022 issued by Department Ex.D2 of Ex-servicemen Welfare Copy of the guidelines for operation of DGR Ex.D3 empannelled Ex Serviceman - Security Services Ex.D4 Copy of the empanelment certificate Ex.D5 Copy of the whatsapp message dated 04.06.2021 Ex.D6 Pendrive Ex.D7 Copy of bank statement Ex.D8 O/c of the appointment letter, April 2023 Ex.D9 Copy of whatsapp message Ex.D10 Copy of whatsapp message Ex.D11 Copy of whatsapp message Ex.D12 Copy of mobile tracking 28 Com.O.S.No.632/2023 Ex.D13 Copy of mobile tracking Ex.D14 Certificate from SBI Bank Ex.D15 Certificate U/Sec.65B of the Evidence Act Ex.D16 Bank statements Ex.D16 Relevant entries at Ex.P16 (a to d) Ex.D17 Bank statements (RAMAKANT CHAVAN) LXXXIV Addl. City Civil & Sessions Judge, (CCH-85) Commercial Court, Bengaluru.