Delhi District Court
M/S. Capricot Technologies Pvt. Ltd vs Shri Varun Gupta on 6 March, 2023
IN THE COURT OF SH. SANJEEV AGGARWAL,
DISTRICT JUDGE (COMMERCIAL)-03, SOUTH,
SAKET COURTS, NEW DELHI
CS DJ-680/2018
CNR NO. DLST010046202018
M/s. Capricot Technologies Pvt. Ltd.
Through its Authorized Representative Tapan Pathak,
Office at : S-17, Local Shopping Complex,
Green Park Extension, New Delhi-110016.
...Plaintiff
Versus
Shri Varun Gupta,
Proprietor of M/s Jwala Engineering and Consultancy Services,
Office at; 354, Sector 2, Growth Centre,
Saha, Ambala (Haryana) 133104
...Defendant
Date of institution of suit : 16.07.2018
Date of reserving judgment : 17.02.2023
Date of pronouncement : 06.03.2023
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking recovery of the amount of Rs. 3,52,825/- along with pendente-lite and future interest.
2. Brief facts are :
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 1 of 25
1. The plaintiff is a company incorporated under the provisions of The Indian Companies Act, 1956 and is running its business under the name and style of M/S Capricot Technologies Pvt. Ltd. having registered office no. 6, 2nd floor, Service Road, 2nd Stage, West of Chord Road, Mahalakshmipuram, Banglore-560086 and one of its offices at S-17, Local Shopping Complex, Green Park Extension, New Delhi-110016.
2. That Shri Tapan Pathak/Amit Jain, Authorized Representatives of the plaintiff company is duly authorized to sign, verify and institute the present suit, vide resolution/Board Resolution dated 07.04.2017, passed in the meeting of the Board of Directors. That they are fully conversant with the facts and circumstances of the case and is competent to file this suit for and on behal of the plaintiff. That Sh. Tapan Pathak, Authorized Representative have full knowledge of the facts and circumstances with the defendant and thereby have full knowledge of all the transactions with the defendant. That Sh. Sharad Kumar Mishra, Authorized Representative of the plaintiff company is also duly authorized to sign, verify and institute the present suit vide resolution/Board Resolution dated 16.04.2016 passed in Meeting of the Board of Directors. That he is fully conversant with the CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 2 of 25 facts and circumstances of the case and is also competent to file this suit for and on behalf of the plaintiff. Sh.
Sharad Kumar Mishra, Authorized Representative have full knowledge of the facts and circumstances with the defendant and thereby have full knowledge of all the transactions with the defendant.
3. That plaintiff is, inter-alia, engaged in the business of selling/renewal of software(s) giving training and consultancy.
4. That the defendant placed the purchase order dated 15.07.2015 for purchase of Autodesk Product Design Suit Premium 2016 Commercial New SLM with multi-year maintenance Subscription Promo for a consideration of Rs. 1,45,300/- and Auto Desk Autocad maintenance subscription (2 years) for a consideration of Rs. 57,000/- excluding taxes as mentioned in the purchase order to the plaintiff.
5. That the plaintiff had successfully fulfilled an aforesaid order up to the satisfaction of the defendant on 19.08.2015, which the defendant had acknowledged to had been successfully installed as per Service Call Report, which is apparent from the service call report and then the defendant activated the software(s) be clicking the button activate in the installed version and filing serial no. which had been given by defendant. That the software(s) were CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 3 of 25 thereby installed in the PC/Computer of the defendant and then the plaintiff raised an Invoices, having Invoice no. DLSL1516/1500262 dated 31.08.2015 for an amount of Rs. 1,52,565/- and invoice no. DLSL1516/1600565 for the consideration of Rs. 64,980/-. That the Auto Desk license Certificate dated 05.03.2018 which shows that the license term was permanent.
8. That the defendant gave three cheques having Cheque No. "043070" drawn at Corporation Bank, Saha Branch, Haryana dated 31.01.2016, Cheque No. "043069" drawn at Corporation Bank, Saha Branch, Haryana dated 20.01.2016, Cheque No. "043071" drawn at Corporation Bank, Saha Branch, Haryana dated 28.02.2016 to the plaintiff and promised to pay the remaining amount after clearance of these cheques. That as per instructions of defendant, the plaintiff presented the abovesaid cheques, having Cheques bearing no. "043069" drawn on Corporation Bank Ltd., Saha Branch, Haryana for an amount of Rs. 27,000/-, Cheques bearing no. "043070" drawn on Corporation Bank Ltd., Saha Branch, Haryana for an amount of Rs. 27,000/-, Cheques bearing no.
"043071" drawn on Corporation Bank Ltd., Saha Branch, Haryana for an amount of Rs. 27,000/-, for payment through his bankers Yes Bank Ltd., Green Park, at A/2A, Ground Floor, Green Park, New Delhi, but to the utter CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 4 of 25 shock of plaintiff, the same were returned bank unpaid by banker of the defendant with remarks "FUNDS INSUFFICIENT" in his account vide its Return Memos dated 02.03.2016.
9. That after the completion of the purchase orders as stated above, the plaintiff requested the defendant, through telephonic conversation to release an outstanding payment as per books of the plaintiff, but the defendant delayed to pay an outstanding payment without any reason.
10. That the defendant through telephonic conversations requested the plaintiff to clear an outstanding amount on which the defendant promised that an outstanding payment/amount will be cleared in a near future but the defendant has not fulfilled his promises to clear the outstanding payment as aforesaid and is delaying the payment for without any reason whatsoever.
11. That the plaintiff was forced to serve upon the defendant legal/Demand Notice dated 30.03.2016, which notice was duly, validly and legally served upon the defendant but the defendant till date has failed to pay the legal and bona fide outstanding dues of the plaintiff.
Therefore, the present suit has been filed by the plaintiff seeking recovery of amount of Rs.3,52,825/- along with pendente-lite and CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 5 of 25 future interest.
3. Summons of the suit were issued to the defendant, which were duly served upon him. Written statement was filed by the defendant, the relevant para(s) of which are reproduced as under :
4. That in order to explain the true and correct facts, it is respectfully submitted that in the month of March, 2015, one Mr. Siddharth, a sales executive from the plaintiff company approached the defendant in his office situated at 354, Sector-2, Growth Centre, Saha, Ambala, Haryana-
133104 and he represented that there is one software available with the plaintiff company which will be useful for the business of the defendant in order to convince the defendant he also represented that there are other companies who are purchasing the said software from the plaintiff company for their day to day business. He convinced the defendant that the plaintiff company will give requisite training and dem after placing an order. He also assured that the plaintiff company has many good customer care centres which are providing prompt 'after sale service and maintenance'to its customers at any time. Therefore, on his assurance the defendant placed the order for purchase of the software i.e. 'Autodesk Produce Design Suit Premium, 2016 Commercial New SLM Ace with multi-year maintenance subscription promo' along CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 6 of 25 with 'AutoDesk Autocad maintenance subscription (2 Years)', from his office situated at Ambala. Thereafter, on the pretext of completion of his sales target, Mr. Siddharth, the Sales executive of plaintiff company had taken 'undated' cheques from the defendant for the full consideration of th said software and assured that the date on the cheques will be filled and presented in bank for encashment, after providing requisite training and installation of the final version of the said software in the computer of the defendant, and in case of any problem in running of the software, the said cheques will be returned bank to the defendant. But, the plaintiff company, malafidely got encashed a cheque of Rs. 10,000/- without the permission, knowledge and fulfilling its commitment towards the defendant.
5. That on 19.08.2015, on Mr. Nikhil Garg, from the plaintiff company, came to the office of the defendant at Ambala and installed some software in teh computer of the defendant which was alleged and confirmed by him to be the trial version of the same software which was ordered by the defendant and he further assured the defendant which was ordered by the defendant and he further assured the defendant that the final version of the software will be installed later on after giving the requisite training to the defendant and his staff, and left the place CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 7 of 25 of the defendant without giving any Demo of the trial version of the software installed in his computer of the defendant. Thereafter, despite various requests of the defendant, no one turned back from the plaintiff company to show Demo of the trial version of the software, hence, the defendant could not even use the said trail version of the software. Thus, till date no final version of the software has been provided to the defendant for which the representative of the plaintiff company managed to take the said undated cheques in question from the defendant. Moreover, the plaintiff company without fulfulling its commitment towards the defendant of giving the final version of the ordered software and necessary training to the defendant has also misused the other cheques which were taken from the defendant by its sales executive at the time of placing of purchase order.
6. That the plaintiff company has fraudulently and malafidely encashed a cheque of Rs. 10,000/- taken from the defendant by its sales executive namely Mr. Siddharth at the time of placing the purchase order and the plaintiff company is withholding the said amount of Rs. 10,000/- alongwith the cheques in question of the defendant, without any consideration or fulfulling its commitment towards the defendant, hence, the plaintiff company is liable to refund/return the said amount of Rs. 10,000/-
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 8 of 25 along with the interest @ 24 % per annum, including all other cheques to the defendant and the plaintiff is not entitled to receive any amount from the defendant.
7. That it is respectfully submitted that this Hon'ble Court (District Court at Delhi) not having territorial jurisdiction to entertain the present suit, since the entire transactions between the plaintiff and the defendant took place in Ambala, Haryana only. That the alleged purchase order was given by the defendant to the agent/representative of the plaintiff at Ambala, Haryana and not in Delhi. That the defendant never visited any office of the plaintiff (including its Delhi Office). That this court has no territorial jurisdiction to try this suit as cause of action has never arisen in the local limits of this Hon'ble court. The suit should have been instituted in the Courts of Ambala, Haryana.
PARA-WISE REPLY:
2. That the content of para no. 2 is wrong and denied. It is respectfully submitted that as per the board resolution passed on 16.04.2016 filed by the plaintiff, Mr. Vipin Rai and Mr. Sharad Kumar Mishra were authorized to act on behalf of the plaintiff company. But in board resolution passed on 07.04.2017, in suppression of all earlier resolutions passed in this regard, Mr. Amit Kumar Jain and Mr. Tapan Pathak, were authorized to act on behalf CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 9 of 25 of the plaintiff company. Therefore, in view of the resolution passed on 07.04.2017 by the board of directors of the plaintiff company, the resolution dated 16.04.2016 become ineffective and has no legality in the eyes of law and Mr. Sharad Kumar Mishra has no power whatsoever to act as authorized representative in the present matter.
The said resolution is filed by the plaintiff company to create confusion and to misguide this Hon'ble Court. Moreover, the resolutions seems to be defective, incomplete and it is not authentic. Further, it is not clear that who has certified and signed the said resolutions and that who is empowered to certify the extract of the board minutes.
4. That the content of para no. 4 is denied to the extent that the defendant is a 'Company'. Rest of the contents is not denied. It is submitted that the defendant is a proprietorship firm working in the name and style of 'M/s Jwala Engineering and Consultancy Services'. That the content of para no.5 is wrong and denied in its toto. It is specifically denied that the defendant placed the purchase order dated 15.07.2015 for purchase of 'Autodesk Product Design Suit Premium, 2016 Commercial New SLM with multi-year maintenance subscription (2 year)'. It is further submitted that the plaintiff company neither given the ordered software to the defendant nor provided any CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 10 of 25 maintenance which was mentioned in the said purchase order.
6. That the content of para no. 6 is wrong and denied in toto. It is respectfully submitted that the plaintiff company has installed some software in the computer of the defendant which was alleged and confirmed by him to be the trial version of the same software which was ordered by the defendant and he further assured the defendant that the final version of the ordered software will be installed later on after giving the requisite training to the defendant and his staff, and left the place of the defendant without giving any Demo of the trial version of the software installed in his computer. Thereafter, despite various requests of the defendant, no one turned back from the plaintiff company to show Demo of the trail version of the software. Thus, till date no final version of the software has been provided to the defendant for which the representative of the plaintiff company managed to take the said undated cheques in question from the defendant. It is also evident from the plaint reading of a service call report dated 19.08.2015 filed by the plaintiff that the plaintiff's technician has installed 'Trail' of some software but not of software whose order was given by the defendant in his purchase order. The defendant never received any 'Serial Number' to activate so called CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 11 of 25 installed software from the side of the plaintiff. It is clearly evident from the documents filed by plaintiff that no serial number was ever sent by the plaintiff to the defendant. It is further that no serial number was ever sent by the plaintiff to the defendant. It is further submitted that the defendant has not received any invoice from the side of the plaintiff. The Autodesk license certificate dated 05.03.2018 filed by the plaintiff is not related to the software ordered by the defendant and has not connection with the defendant. These documents are filed by the plaintiff to misguide this Hon'ble Court. The plaintiff is miserably failed to prove and place any report on record to show that the final version of the ordered software was installed and satisfactorily run in the computer of the defendant by the plaintiff.
7. That the content of para no. 7 is wrong and denied except that those are matter of record. It is submitted that, it is evident from the statement of accounts filed by the plaintiff that the plaintiff company without fulfulling its commitment towards the defendant of giving the final version of the ordered software and necessary training to the defendant has misused and tried to encashed the other cheques which were taken from the defendant by its sales executive at the time of placing of purchase order. Further, it is submitted that, it is also evident that the CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 12 of 25 plaintiff company has fraudulently and malafidely encashed a cheque of Rs. 10,000/- taken from the defendant by its sale executive namely Mr. Siddharth at the time of placing the purchase order and the plaintiff company is withholding the said amount of Rs. 10,000/- along with the cheques in question of the defendant without any consideration or fulfilling its commitment towards the defendant, hence, the plaintiff company is liable to refund/return the said amount of Rs. 10,000/- alongwith the interest @ 24 % per annum including all other cheques to the defendant and the plaintiff is not entitled to receive any amount from the defendant.
8. That the content of para no. 8 is wrong and denied in toto. It is respectfully submitted that the cheques in question were given 'undated' to Mr. Siddharth, the Sales Executive of the plaintiff company at the time of placing of purchase order, who taken these cheques alongwith other cheques (all were undated) on the pretext of completion of his sales target, and for the full consideration of the ordered software and assured that the date on the cheques will be filled and the same will be presented in the bank for encashment after providing requisite training and installation of the final version of the ordered software in the computer of the defendant, and in case any problem comes in running the software, CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 13 of 25 the said cheques will be returned back to the defendant. But, the plaintiff company malafidely got encashed a cheque of Rs. 10,000/- and also misused and tried to encash other cheques taken from the defendant, without his permission, knowledge and fulfulling its commitment towards the defendant.
Therefore, it is stated that the suit of the plaintiff is liable to be dismissed.
4. Replication has been filed by the plaintiff to the above written statement of the defendant, in which the averments made in the plaint have been reiterated and those made in the written statement have been denied.
5. From the pleadings of the parties, following issues were framed vide order dated 31.05.2019 :
1. Whether the plaintiff has concealed material facts from this Court ? OPD.
2. Whether this court has no territorial jurisdiction to entertain and try the present suit ? OPD.
3. Whether the plaintiff failed to perform its obligations under the purchase order dated 15.07.2015? OPD.
4. Whether the plaintiff has based its claim on forged and fabricated documents?OPD.
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 14 of 25
5. Whether the plaintiff performed its obligations under the purchase order dated 15.07.2015?OPP.
6. Whether the plaintiff is entitled to recover money from the defendant? If so, what amount the plaintiff is entitled to recover?OPP.
7. Whether the plaintiff is entitled to recover interest from the defendant ? If so, on what amount, for which period and at what rate? OPD.
8. Relief.
6. Thereafter, the plaintiff in support of its case has examined Sh. Tapan Pathak, AR as PW1 and in defence, the proprietor of the defendant Sh. Varun Gupta has appeared as DW1.
7. I have heard Sh. Saurabh Jain, Ld. Counsel for the plaintiff, Sh. Rajan Khanna, Ld. Counsel for the defendant and perused the record. I have also gone through the written submissions filed on behalf of the plaintiff.
8. Ld. Counsel for the plaintiff has relied upon the following judgments in support of his contentions :
a) Lohmann Rausher GMBH Vs. Medisphere Marketing Pvt.
Ltd. 117(2004) Delhi Law times 95;
b) Bijender Chauhan Vs. Financial Eyes (India) Ltd.
MANU/DE/2138/ 2013;
c) M/s. KIG Systel Ltd. Vs. Fujitsu ICIM Ltd. AIR 2001 Delhi CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 15 of 25 357;
d) Rajinder Pershad (Dead) by Lrs Vs. Darshana Devi (Smt) (2001) 7 Supreme Court Cases 69;
e) Harsha Gupta Vs. Insulation & Electrical Products(P) Ltd.
183(2011) Delhi Law Times 557;
f) Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh & Anr. 2005(2) RCR;
g) Municpal Council, Bathinda Vs. Raj Kumar 2006 SCC OnLine P&H 957.
9. My issuewise findings are :
Issue No. 22. Whether this court has no territorial jurisdiction to entertain and try the present suit ? OPD.
Regarding this, PW1 has relied upon purchase order Ex. PW1/3 issued by the defendant for the goods "AutoDesk Product design suit Premium 2016 commercial new SLM Ace with multiyear maintenance subscription promo" and "AutoDesk Autocad maintenance subscription (2 Year)". As per the defence of the defendant, the same was issued from his office at Ambala Cantt., which fact he has also stated in his cross- examination as DW1.
10. However, PW1 in his cross-examination has stated that the defendant resides at Ambala and he contacted him at the office of company at Delhi. He further stated that he does not remember as to what conversation took place between him and the defendant in their meeting held at his office at Delhi due to prolong of time (sic.). However, he has CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 16 of 25 placed the purchase order, which is Ex. PW1/3.
No suggestion has been put by Ld. Counsel for the defendant to the said categorical assertion made by PW1 in his cross-examination that the meeting with the defendant took place at Delhi office, where he also placed the purchase order for supply of aforesaid software namely "AutoDesk Product design suit Premium 2016 commercial new SLM Ace with multiyear maintenance subscription promo" and "AutoDesk Autocad maintenance subscription (2 Year)", therefore, it is proved that the purchase order was placed at Delhi office of the plaintiff company, therefore, part of cause of action can be said to have arisen at Delhi. Thus, it cannot be said that this Court has no territorial jurisdiction to entertain and try the present suit. Consequently, this issue is decided in favour of the plaintiff and against the defendant.
11. Issue(s) no. 3, 5, 6 & 7
3. Whether the plaintiff failed to perform its obligations under the purchase order dated 15.07.2015?OPD.
5. Whether the plaintiff performed its obligations under the purchase order dated 15.07.2015?OPP.
6. Whether the plaintiff is entitled to recover money from the defendant? If so, what amount the plaintiff is entitled to recover?OPP.
7. Whether the plaintiff is entitled to recover interest from the defendant ? If so, on what amount, for which period and at what rate? OPD.
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 17 of 25 Issue(s) nos. 3, 5, 6 & 7 are taken up together, as they are interconnected with each other and are being disposed off vide common discussion.
12. As discussed above, the purchase order Ex. PW1/3 dated 15.07.2015 placed by the defendant is admitted, which was for supply of certain software. During the course of cross-examination of DW1, he has also admitted as under :
"It is correct that one complaint pertaining to section 138 NI Act was filed against me by the plaintiff company. It is correct that purchase order, having Ex. PW1/3 was issued by me to the plaintiff company..."
13. In the notice u/S. 251 CrPC, framed against the present defendant, who was an accused in the said case, the copy of which was put to DW1 in his cross-examination, which he admitted as correct as Ex. DW1/PA, in which he had stated as under :
I had placed an order of a software to the complainant company. On delivery, the software could not run on the system. Several requests were made to the complainant despite which the software could not run on the system. The above said cheques were given after delivery without date on assurance that the software would start running after payment. However, the software did not operate and I have no CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 18 of 25 legal liability to pay the cheques amount to the complainant. I had received the legal notice of demand.
14. It is settled law that the admissions are the best evidence against the maker of the admissions, unless successfully explained. The defendant has failed to explain the above admissions made by him in response to the notice framed u/S. 251 CrPC, in another proceedings between the parties in a case u/S. 138 NI Act, wherein the defendant has admitted that he had placed an order of a software to the complainant company. On delivery, the software could not run on the system. Several requests were made to the complainant despite which the software could not run on the system. The above said cheques were given after delivery without date on assurance that the software would start running after payment. However, the software did not operate and he had no legal liability to pay the cheque amount to the complainant (plaintiff).
15. Therefore, in view of the above admissions made by the defendant, the plaintiff has been able to prove that the defendant had placed an order for supply of software to the complainant company. However, it is the plea of the defendant that on delivery, the software did not run on his system and several requests were made to the complainant i.e. the plaintiff company to rectify the same, but despite that the software could not run on the system.
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 19 of 25
16. This plea taken by the defendant in his written statement that the same was trial version of the software, which was ordered by the defendant and the plaintiff representative assured him that the final version of the software will be installed later on after giving the requisite training to the defendant and his staff is itself belied by the above admissions made by the defendant in the connected proceedings u/S. 138 NI Act between the same parties.
17. His further assertion that till date no final version of the software has been provided to the defendant or his representative or that undated cheques were given on the assurance by the plaintiff company that the cheques will be filled and presented to the bank for encashment after providing requisite training and installation of the final version of the software also stands disproved for the same reasons. Therefore, this defence taken by the defendant in his written statement is contrary to his own admissions made in the connected proceedings between the parties i.e. proceedings u/S. 138 NI Act.
18. In any case, it is hard to imagine that if only a trial version had been installed, as per the admission of the defendant, then why would the defendant give undated cheques to the plaintiff, as there was no legal liability for him to pay till the final version had been installed. This also shows that there was a concluded contract between the parties regarding the installation of the software which was properly installed and it also started working and same is also corroborated by the document Ex.
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 20 of 25 DW1/PB, which is the statement of Principal of the plaintiff company, who was called by the Ld. Trial Court trying the case u/S. 138 NI Act between the parties, u/S. 311 CrPC suo moto, who in his testimony has stated as under :
"Yes, there is an activation report generated.
Q. Are these trial licenses?
A. As per our records, these are not trial licenses
because no serial no. is generated of trial licenses. As is reflected, it is a Commercial Product.
Q. What are the customers details in Autodesk records? A. The license belongs to Sh. Varun Gupta with email [email protected] and Contact Phone:
+919194163673 and account: Jwala Engineering & Consultancy Services, No. 354 INDL Growth Ctr Ambala Haryana India, Supporting Reseller/dealer: Capricot Technologies Pvt ltd, 3rd floor plot no. 19-20 Oriental House Yusuf Sarai Community Center New Delhi-110049 India.
Q. How is activation of a license done?
A. As per the End User License Agreement, clause
6.2.1 installation of and Access to the Lincensed Material require and the continued use thereof may from time to time require, activation codes issued by Autodesk.
Registration may be required before an activation code is CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 21 of 25 issued by Autodesk. Licensee will provide Autodesk and its Reseller with any information required for such registration.
In case of a standalone, perpetual license, manual activation is normally done at the request of End Customer and the details are below.
As per Autodesk record, a media Kit Order(7055205822) was placed by our distributor on 28.07.2015 and another order for maintenance plan (AMC) and support was placed(7055226009) which has the contract start date of 06.08.2015. As per records, the maintenance contract has expired since 05.08.2017."
The defendant herein, who was accused in trial under Section 138 NI Act, did not even chose to cross-examine the said witness nor seems to have made any application for cross-examination of said witness before the said Court. Therefore, from the above testimonie(s) and discussion, it appears that the plaintiff company had duly performed its obligation under the purchase order dated 15.07.2015.
19. Regarding another defence raised by the defendant that the software was not properly installed and it was only a trial version and that the plaintiff company assured that the final version of the software will be installed after the requisite training to the defendant and his staff, the defendant has failed to produce on the record any notice / writing CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 22 of 25 informing the plaintiff company that the software installed by them was deficit or that the same was not properly installed.
20. In this regard, the judgment relied upon by Ld. Counsel for the plaintiff Lohmann Rausher GMBH Vs. Medisphere Marketing Pvt. Ltd. (supra), in which it has been held as under :
"If defendant did not reject goods within reasonable time, he would be deemed to have accepted goods: Long gap afterwhich goods were ostensibly rejected on premise that they were defective/ sub-standard, clearly fatal to projected defence in context of statutes of law i.e. Sections 41 and 42 of Sale of Goods Act."
The said judgment is squarely applicable to the facts of the present case. Since the defendant did not give any notice in writing rejecting the goods / software supplied by the plaintiff within a reasonable time, therefore, he would be deemed to have been accepted those goods.
21. Further in his cross-examination DW1 has admitted as correct that he has not produce any record to show that he had made even a single call to Sh. Siddharth, the representative of the plaintiff company regarding the defect in the software. Rather, he admitted that he has not placed any document to show that he messaged or E-mailed to Sh. Siddharth, the representative of the plaintiff regarding any defect in the software or any complaint regarding the alleged non installation of final version of the software. Therefore, in view of the categorical assertion / admission made by DW1 in this regard and in view of the law laid down CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 23 of 25 by the aforesaid judgment, the defendant has failed to prove his defence taken in the written statement. As a resultant, in view of afore analysis of evidence, the above issues are answered accordingly in favour of the plaintiff and against the defendant.
22. Issue(s) No. 1 & 41. Whether the plaintiff has concealed material facts from this Court ? OPD.
4. Whether the plaintiff has based its claim on forged and fabricated documents?OPD.
The defendant during the evidence or during the course of arguments has failed to point out any material facts, which the plaintiff has concealed from this Court, which dis-entitles him to the relief claimed in the present suit. The defendant has also failed to prove that the plaintiff has based its case on forged and fabricated documents, as no such evidence whatsoever has been produced by the defendant on this aspect. In view of the same, issue nos. 1 & 4 are also decided in favour of the plaintiff and against the defendant.
23. The present suit is in the nature of commercial dispute, as specified under Section 2(c)(i) of The Commercial Courts Act, 2015 and the specified value of the present commercial dispute, as per Clause 2(i) is more than Rs. 3 Lakhs, i.e. the suit is for Rs.3,52,825/-. Therefore, this Court has the jurisdiction to try and adjudicate this case.
CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 24 of 25 24. Issue No. 6
6. Relief In view of the afore discussion, the suit of the plaintiff is decreed for an amount of Rs.3,52,825/- along with simple interest @ 9% p.a. from the date of filing of the suit till its realization along with costs.
Decree be made.
File be consigned to record room.
Announced in the open court today on 06.03.2023.
(Sanjeev Aggarwal) District Judge (Commercial)-03 South, Saket Courts, New Delhi CS DJ 680/2018 (CNR No. DLST010046202018) Page No. 25 of 25