Delhi District Court
Nehru Yuva Kendra Sangathan vs Promodome Communication Pvt Ltd on 20 December, 2024
In The Court of Sh. Hem Singh,
District Judge-01, (East),
Karkardooma Courts, Delhi.
RCA DJ No.22/2021
CNR No.DLET01-009263-2021
In the matter of :-
Nehru Yuva Kendra Sangathan
Ministry of Youth Affairs and Sports
4, Jeevan Deep Building,
Ground Floor & Second Floor,
Parliament Street,
New Delhi-110001.
.....Appellant
Versus
Promodome Communications Pvt. Ltd.
205-205A, 2nd Floor, 72,
Laxmi Bhawan, Nehru Place,
New Delhi-110019.
.....Respondent
Date of Institution : 24.12.2021
Date of Reserving Order : 12.12.2024
Date of Decision : 20.12.2024
JUDGMENT
1.) Vide this order, I shall dispose of an appeal preferred by appellant/ defendant under Section 96 of CPC against respondent/ plaintiff.
2.) By way of the present appeal, the appellant has assailed the impugned judgment and decree dated 17.07.2020 passed by Ld. Additional Senior Civil Judge, East, KKD, Delhi in Civil Suit Digitally RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.1of9 signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:06 +0530 No.7326/2016 wherein suit of the plaintiff (respondent herein), was decreed.
3.) The germane of the instant lis is the recovery of Rs.1,46,395/- from the defendant/ appellant.
4.) FACTUAL MATRIX:-
a) The plaintiff/ respondent has filed the suit against the defendant/ appellant U/O XXXVII CPC for recovery of Rs.1,46,395/-. However, vide separate statement dated 10.09.2014 given by Ld. Counsel for plaintiff, the said suit was treated as an ordinary suit. Plaintiff is a private company engaged in the business of advertisement, brand management, media planning etc., and defendant is an autonomous body, setup by the Ministry of Youth Affairs and Sports, Govt. of India.
b) Defendant approached plaintiff for availing the services of publishing and advertisement. The defendant has authorized plaintiff to get the publication of advertisement for the recruitment of 45 District Youth Coordination vide release orders dated 27.05.2013, 05.06.2013 and 27.06.2013 and for hiring Housekeeping Security Receptionist, Electrician Services, Services of Evaluation Agency on the basis of media plans/ estimates dated 20.05.2013, 04.06.2013 and 17.06.2013. The said advertisements were published on 30-31.05.2013, 06.06.2013 and 28.06.2013.
Thereafter, invoices dated 31.05.2013, 24.06.2013 and 30.06.2013 for the sum of Rs.7,94,348/-, Rs.38,374/- and Rs.43,100/- were raised by the plaintiff.
RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.2of9 Digitally
signed by
HEM
HEM SINGH
SINGH Date:
2024.12.20
16:03:11
+0530
c) However, no payment was made by the defendant.
Thereafter, plaintiff wrote a letter dated 21.08.2013 to the defendant to clear the dues. However, defendant only paid Rs.6,62,797/- and Rs.66,630/- on 31.08.2013 and 19.09.2013 respectively and despite several requests, defendant has not made the balance amount of Rs.1,46,395/-.
d) In response, defendant averred that defendant has made the full and final payment to the plaintiff as per the DAVP rates. Further, it was already mentioned in the order to release the advertisements dated 27.05.2013 that the applicable rates would be DAVP rates. Despite the same, plaintiff has not raised the invoices/ bills as per the terms and conditions and raised the bills after including 15% of agency commission which was over and above the DAVP rates. In view of the agreed terms and conditions, defendant made the payment of Rs.6,62,797/- on 30.08.2013 to the plaintiff after deducting 15% of agency commission. Further, plaintiff had demanded Rs.7,94,218/- vide its letter dated 22.07.2013, however, later on plaintiff demanded Rs.7,91,363/- from the defendant which shows that infirmity on the part of plaintiff. Accordingly, there is no outstanding payment due on the part of the defendant.
e) On the basis of the above pleadings, following issues were framed by the Ld. Trial Court vide order dated 31.07.2015:-
i) Whether the plaintiff is entitled for recovery of Rs.1,46,395/-, as prayed for? OPP
ii) Whether the plaintiff is entitled for interest on the above said sum? If so at what rate and for what period?
Digitally RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.3of9 signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:16 +0530 OPP
iii) Relief.
f) Thereafter, after hearing arguments on behalf of both the parties, the suit was decreed in favour of the plaintiff- M/s Promodome Communication Pvt. Ltd., respondent herein.
Hence, this appeal.
5.) GROUNDS OF APPEAL:-
Feeling aggrieved, appellant/ defendant has filed the instant appeal challenging the impugned order primarily on the following grounds:-
a) That the Ld. Trial Court has failed to consider the DAVP Rates applicable for government organizations and it was made clear by the appellant/ defendant in the release orders that DAVP would be applicable and agency rate of 15% is not included in the DAVP rates and the bills will be raised as per DAVP rates.
b) The Ld. Trial Court failed to appreciate the fact that release orders were given in writing clearly mentioning that DAVP rates would be applicable and not telephonically.
c) Further, Ld. Trial Court also failed to appreciate that media plan was mere estimate subject to final approval by appellant/ defendant and plaintiff/ respondent has failed to place on record any documents showing approval by the appellant/ defendant. Thus, it is prayed to set aside the impugned judgment.
6.) No reply to the instant appeal filed by the respondent and final arguments heard on behalf of both the parties.
RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.4of9 Digitally signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:22 +0530
7.) Arguments heard. Record perused. Considered.
8.) FINDINGS:-
a) It is the case of plaintiff/ respondent that vide letter dated 20.05.2013 (Mark DW1/P1) media estimates were sent by the plaintiff/ respondent to the defendant/ appellant. In response, thereto release order dated 27.05.2013 (Mark PW1/A), release order dated 05.06.2013 (Mark PW1/D) and 27.06.2013 (Mark PW1/G) were issued by the defendant/ appellant to the plaintiff/ respondent.
b) Ld. Trial Court has observed in para no.37 of the impugned order dated 17.07.2020 that the media plans/ media estimates were merely quotation to make offers and the offer was actually made by defendant/ appellant vide the above said release orders. As per the provisions of Indian Contract Act, 1872, invitation to offer is different from making an offer. The Ld. Trial Court has rightly held that media estimates were merely quotation to make an offer and the offer actually made by defendant/ appellant vide release orders dated 27.05.2013, 05.06.2013 and 27.06.2013. Therefore, an enforceable contract came into existence between the plaintiff and the defendant/ appellant when the plaintiff/ respondent has accepted the offer made by the defendant vide release orders dated 27.05.2013, 05.06.2013 and 27.06.2013.
c) A perusal of said release orders show that plaintiff/ respondent is entitled to raise bill as per DAVP rates. Therefore, irrespective of any rates as mentioned by respondent/ plaintiff in letter dated 20.05.2013 i.e. media estimates, respondent/ plaintiff was only entitled for DAVP rates. Ld. Counsel for the respondent/ Digitally signed by HEM RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.5of9 HEM SINGH SINGH Date:
2024.12.20 16:03:32 +0530 plaintiff argued that the defendant/ appellant has not filed any document showing DAVP rates. Perusal of the record shows that even respondent/ plaintiff has also not filed any authenticate document showing DAVP rates. The letter dated 20.05.2013 which is showing DAVP rates is a document prepared by the respondent/ plaintiff in its office. The defendant/ appellant already took a stand that the rates as mentioned in the letter dated 20.05.2013 are not DAVP rates. Therefore the said document cannot be taken as conclusive proof in respect of the DAVP rates. During cross examination of DW1 he has produced documents marked DX1 & DX2 showing DAVP rates, however suggestion was given by the plaintiff to the DW1 that those documents were not the official DAVP rates. Nothing has prevented the plaintiff/ respondent to place on record material document showing DAVP rates. As per the law of evidence, one who alleged must prove the fact alleged by him. It is the case of the plaintiff/ respondent that invoices were as per the DAVP rates, therefore, burden to adduce the material document in respect of DAVP rates was upon the plaintiff/ respondent however the plaintiff/ respondent has not produced any such documents.
d) During the cross-examination of PW1, specific question was put to him i.e. 'have you placed on record any document wherein DAVP rates are approved by the defendant' in response PW1 answered- No. In response to another question i.e. I put it to you that the rates mentioned in Mark PW1/C (colly) includes the commission agency. What you have to say? The PW1 answered- it is correct to say that 15% agency commission is included in the invoice Mark PW1/C (colly). The PW1 further stated that "I do not Digitally RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.6of9 signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:38 +0530 know if upon directly approaching the DAVP (Department of Advertising and Visual Publicity), the defendant would have got 15% less rates, in contrast to the rates quited in the Media Plan (Media estimate) dated 20.05.2013. Mark PW1/A." From the abovementioned examination of the PW1 it is established that the plaintiff/ respondent has raised invoices after adding 15% agency commission which is against the spirit of the contract between the plaintiff/ respondent and defendant/ appellant.
e) During cross-examination of defendant's witness, counsel for the plaintiff asked from DW1- Can you file the DAVP Rates as per which you have calculated the final amount to be paid to the plaintiff as per the invoice. In response, the witness had stated that he can produce the same and on the next date of hearing, the DW1 produced two documents which are DX1 and DX2. However, the plaintiff/ respondent disputed these documents but chose not to brought on record documents in support of plaintiff's version. In my view, the plaintiff/ respondent has failed to prove the fact that invoices which were raised by the plaintiff/ respondent are as per DAVP rates.
f) During his cross-examination, PW1 specifically admitted that 15% agency commission was included in the amount charged.
However, as per the contract executed between the plaintiff and the defendant, the plaintiff/ respondent was only entitled to raise bill as per the DAVP rates. The media estimate i.e. Mark DW1/P1 which was sent by the plaintiff/ respondent to the defendant/ appellant also included the 15% agency commission over and above the DAVP rates. Even as per the finding of the Ld. Trial Court, the said media Digitally RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.7of9 signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:42 +0530 estimate was only an invitation to offer and final and enforceable contract came into existence only when the plaintiff/ respondent has accepted the offer made by the defendant/ appellant by release orders dated 27.05.2013, 05.06.2013 and 27.06.2013. It is settled law that once parties committed themselves to a written contract whereby they reduce the terms and conditions agreed upon them by writing, the same would be binding upon them. Thereafter, neither parties can amend the contract unilaterally nor even the Court is empowered to re-write the contract once executed between the parties. It is relevant to mention herein the judgment of the Hon'ble Supreme Court of India in case titled as 'Venkataraman Krishnamurthy & Anr. Vs. Lodha Crown Buildmark Pvt. Ltd.' Civil Appeal No. 971/2023.' where the Hon'ble Apex Court observed that:-
"the Court cannot re-write or create a new contract between the parties and has to simply apply the terms and conditions of the agreement as agreed between the parties. ".
g) Therefore, in my view, Ld. Trial Court has erred in holding that as plaintiff/ respondent agreed to do the translation work for which plaintiff/ respondent even paid the amount to the translators and due to this, agency commission has been charged which is the bread and butter of the plaintiff/ respondent. In my view, once its was agreed between the parties that the applicable rates are DAVP rates and agency commission shall not be charged, the same can not be charged in the name of translation or other work.
h) Since very beginning of the suit, it is the case of the plaintiff/ respondent, that plaintiff/ respondent has not charged any agency Digitally RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.8of9 signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:48 +0530 commission. The same can also inferred from the cross examination of the DW1. Interpretation of a contract should be done in such a manner that it should give effect to the real intention of the parties at the time of entering into the contract. In this case, it was the understanding between the plaintiff/ respondent and defendant/ appellant that invoices should be raised as per DAVP rates without charging any agency commission. In documents- DX1 and DX2, the rates with and without agency commission are different. The plaintiff/ respondent has charged the rates which includes agency commission which is not in accordance with the concluded contract between plaintiff/ respondent and defendant/ appellant.
i) Hence, in totality of circumstances, the impugned order and decree dated 17.07.2020 is hereby set aside. With these observations, the instant appeal stands disposed of as allowed. Misc.
application, if any, stands disposed of.
No order as to the cost.
Appeal file be consigned to the record room. TCR be sent back to the concerned Court along-with copy of the order to proceed further as per law.
Digitally signed by HEM HEM SINGH SINGH Date:
2024.12.20 16:03:54 +0530 Announced in the open Court on 20.12.2024 (Hem Singh) District Judge-01 (East)/KKD/Delhi RCA DJ NO.22/21 (Nehru Yuva Kendra SangathanVS. Promodome Communications Pvt. Ltd.) Pgno.9of9