Delhi District Court
M/S Sanya Automobiles Pvt. Ltd vs M/S Net 4 Barter Pvt. Ltd on 24 March, 2009
IN THE COURT OF SH.KAMLESH KUMAR, AD&SJ(CENTRAL)-17, DELHI
Suit No. 94/07
In the matter of:
M/s Sanya Automobiles Pvt. Ltd.
A duly registered company,
Through Sh Ashok Sethi,
B-227, Okhla Industrial Area, Phase-I,
New Delhi-110020 .....Plaintiff
Versus
M/s Net 4 Barter Pvt. Ltd.
Through its Director
604, Bhikaji Cama Bhawan,
Bhikaji Cama Place,
New Delhi ......Defendant
Date of Institution of Suit : 24.02.2007
Date when reserved for orders : 07.03.2009
Date of Decision : 24.03.2009
JUDGMENT
This is a suit for recovery of Rs.10,15,533/- filed by the Plaintiff M/s Sanya Automobiles Pvt. Ltd against the Defendant, M/s Net 4 Barter Pvt. Ltd.
2) The Plaintiff, a private limited company registered under the Companies Act, 1956 and an authorised dealer of passengers car manufactured by M/s Tata Motors Ltd, arrived at an understanding with the Defendant - engaged in the business of providing various
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consumer / barter services viz - advertisements, selling various products, arranging tour and travels etc in pursuance of which the Plaintiff agreed to provide two cars and the amount due against the purchase of said cars by the Defendant was to be adjusted against the amount on account of various goods and services provided by the Defendant company.
3) The Plaintiff availed various services provided by the Defendant from time to time and the amount, on account of such services was duly credited in the running account of the Defendant. The Plaintiff sold one DAEWOO MATIZ car to one Sh Shamshad Ali and the cost of Rs.3.85 lacs was debited in the running account of the Defendant. The Plaintiff again sold one TATA SAFARI car in February 2004 against an order dated 06.02.2004 to the Defendant. The Plaintiff last availed the services of the Defendant on 27.02.2004 and the amount due was credited in the account of the Defendant. A sum of Rs.6,59,437/- was outstanding against the Defendant as on 27.02.2004 and the Plaintiff requested the Defendant to clear the outstanding dues but the Defendant failed to respond. A sum of Rs.3,56,096/- accrued as interest @ 18% per annum on the outstanding dues of Rs.6,59,437/-. The Defendant failed to pay the outstanding dues and hence the suit.
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4) The suit has been contested on behalf of the Defendant. In its written statement, the Defendant claimed that the Plaintiff started dealing with them from the year 2001. In order to achieve promotional mileage for the product viz MATIZ Car, the Plaintiff approached the Defendant to be a part of the event being organised by them. The Defendant claimed that it was agreed by the Plaintiff that sale price of the MATIZ Car would be paid by the Defendant by way of barter and not by cash. The Defendant further claimed that it was also agreed that the barter value for the sale of said car would be utilised by the Plaintiff on or before 31.03.2004. The Defendant claimed that on reconciliation of accounts of the Plaintiff company as on 31.03.2004, it was found that the Plaintiff had availed excess barter value of Rs.29,230/-.
5) The Defendant has claimed in its written statement that Mr Sameer, Manager (Operations) of the Plaintiff company approached them for an arrangement for the publication of advertisements pertaining to the products being sold and service being rendered by the Plaintiff company in a daily newspaper. A tripartite agreement was proposed between the parties and one M/s Duko Advertising Pvt Ltd under which the Defendant company was to provide service and goods by way of barter to Duko Advertising Pvt Ltd and the
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said Duko Advertising Pvt Ltd was to make arrangements for the publication of advertisements in favour of the Plaintiff company and the Plaintiff company was to sell and deliver the TATA SAFARI car in the name of the Defendant company.
6) The Defendant claimed that it performed its part of obligation as contemplated in the oral tripartite agreement (which obligation was to provide Duko Advertising Pvt Ltd the barter value of the total sale consideration of the vehicle). The Defendant further claimed that the Duko Advertising Pvt Ltd fully utilised the services and is precluded from claiming the unutilised barter value of Rs.19711/- as on 31.03.2005. The Defendant claimed that it can not be burdened with the liability to pay any amount to the Plaintiff company since it has already performed its part of obligation. The Defendant also claimed that the ledger account of the Plaintiff company pertaining to Matiz Car maintained by them in the normal course of business but for the second transaction of TATA SAFARI car, no such account was opened since the barter value of the price of TATA SAFARI vehicle was to be given and utilised by Duko Advertising Pvt Ltd. The Defendant prayed that the suit be dismissed.
7) The Plaintiff filed replication to the written statement of the
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Defendant wherein it controverted all the allegations levelled against it and reiterated the averments made in the plaint.
8) The Defendant failed to put in appearance after the filing of the replication by the Plaintiff. The Defendant was, therefore, proceeded against exparte.
9) The Plaintiff was called upon to lead evidence in support of its case. The Plaintiff examined Sh Sanjay Thukral as PW1. He led evidence through his Affidavits Ex.PW/A and Ex.PW1/B and proved on record the documents relied on by the Plaintiff company as Ex.A to Ex.D and Ex.PW1/1 to Ex.PW1/3. Through his Affidavits, Sh Sanjay Thukral has proved on record - the certificate of incorporation, articles of association nd memorandum of association of the Plaintiff company and the resolution passed by the company authorising him to sign, verify and institute legal proceedings against the Defendant. He also proved on record the registration certificate in respect of TATA SAFARI car. He also proved the order form and booking invoice form in respect of the TATA SAFARI Car. He also proved on record the statement of account of the Defendant company maintained by the Plaintiff as Ex.D.
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10) The testimony of PW Sh Sanjay Thukral has remained unassailed and uncontroverted. I find no infirmity in the testimony and have no reason to disbelieve the same. It has clearly emerged over the record through the testimony of PW Sh Sanjay Thukral that the Plaintiff company sold a MATIZ Car and a TATA SAFARI car under the barter agreement to the Defendant company. It has also been established on record that the vehicle TATA SAFARI was sold under barter agreement viz advertisement services through M/s Duko Advertising Pvt Ltd (as per agreement). The Plaintiff has established that under the barter agreement, it sold the TATA SAFARI Car to the Defendant company but it was not provided equivalent services through Duko Advertising Pvt Ltd. The Plaintiff has thus established on record that the Defendant is liable to pay the outstanding amount of Rs.6,59,437/- as on 31.03.2005. The Defendant will also be liable to pay the interest on the suit amount @ 18% per annum.
11) In view of the discussion hereinabove, I hold that the Plaintiff is entitled to the suit amount from the Defendant. The Plaintiff will also be entitled to interest @ 18% per annum, pendentelite and future till realisation.
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12) The suit of the Plaintiff succeeds and is decreed against the Defendant. The Plaintiff shall also be entitled to the costs of the suit.
13) Decree sheet be drawn accordingly. File be consigned to record room.
Announced in the open court (KAMLESH KUMAR)
Today i.e. on 24 March, 2009 Addl. Distt. & Sessions Judge
DELHI
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