Delhi District Court
M/S Maxposure Media Group (I) Pvt Ltd vs M/S Oyster Communications And Other on 26 July, 2024
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM. COURT-07) (DIGITAL),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI.
CS (Comm) 596/2022
M/s Maxposure Media Group (India) Pvt. Ltd.
having its registered office at:
Unit No. 62, Ground Floor, Okhla,
Phase-III, New Delhi.
..... Plaintiff
Vs.
1. M/s Oyster Communication
2. Sh. Arjun Daima, Partner
3. Sh. Kailash Daima, Partner
Registered office at:
Office No. 2, Opposite Colgate Ground,
Kheranagar, Bandra (East), Mumbai,
Maharashtra.
..... Defendants
Date of Institution: 08.06.2022
Arguments concluded on: 20.07.2024
Date of Judgment: 26.07.2024
JUDGMENT
Brief facts of the case By this judgment, I shall decide the present suit filed for recovery of Rs. 15,84,010/- alongwith pendente lite and NIRJA future interest @ 24% p.a. by M/s Maxposure Media Group BHATIA (India) Pvt. Ltd. (hereinafter to be referred as plaintiff), having its Digitally signed by NIRJA BHATIA registered office at Unit No. 62, Ground Floor, Okhla Phase-III, Date: 2024.07.26 16:14:07 +0530 New Delhi, through its authorized representative Sh. Uma Shanker Joshi.
M/s Maxposure Media Vs. Page No. 1 of 41M/s Oyester Communication
2. The suit is defended by M/s Oysters Communications and its partners Sh. Arjun Dayma and Kailash Daima (hereinafter to be referred as defendants No. 1, 2 and 3 respectively) on below assertions:
(i) That defendant placed orders to publish advertisements in the magazines published by plaintiff in "Airport India", "Shubh Yatra" and "Vistara".
(ii) That plaintiff published the advertisements in the magazines of above to the complete satisfaction of defendant and issued invoices for carrying out the publication.
(iii) That plaintiff has been maintaining open and running account in the name of defendant No. 1 and the payments received were duly entered as per the account.
(iv) That a sum of Rs. 11,15,500/- was found due and outstanding against the defendants.
(v) That as per terms and conditions upon the bills/ invoices against publication, the defendants were under obligation to make payment in seven days from the date of receipt of bills.
(vi) That the payments were delayed, forcing plaintiff to issue reminders and emails and to charge interest @ 24% p.a. on the delayed payments.
(vii) That plaintiff committed its best services to the defendant and rendered the same, however, the payments were withheld by NIRJA the defendant.
BHATIA
(viii) That being constrained, plaintiff through advocate sent a Digitally signed by NIRJA BHATIA Date: legal demand notice dated 27.07.2020 which was returned with 2024.07.26 report 'left' from the registered address of the defendant.
16:14:32 +0530 M/s Maxposure Media Vs. Page No. 2 of 41 M/s Oyester Communication
(ix) Plaintiff doubts the report and suggests that it had been manipulated as during the pre-litigation mediation, defendants were served upon the same address.
(x)Plaintiff has detailed the invoices outstanding as below:
S. Bill Date Bill No. Amount Pending
No. amount
1. 11/12/2019 AI/19-20/1097 Rs. 1,62,750.00 Rs. 7,750/-
2. 03/01/2020 VT/19-20/1193 Rs. 1,20,750/- Rs. 1,20,750/-
3. 03/02/2020 VT/19-20/1328 Rs. 1,20,750/- Rs. 1,20,750/-
4. 11/02/2020 AI/19-20/1362 Rs. 1,62,750/- Rs. 1,62,750/-
5. 11/02/2020 AP/19-20/1370 Rs. 2,10,000/- Rs. 2,10,000/-
6. 02/03/2020 VT/19-20/1439 Rs. 1,62,750/- Rs. 1,62,750/-
7. 05/03/2020 AI/19-20/1484 Rs. 1,62,750/- Rs. 1,62,750/-
8. 10/03/2020 AP/19-20/1499 Rs. 2,10,000/- Rs. 2,10,000/-
Rs. 11,15,500/-
(xi) Plaintiff states that in the month of March 2020, defendant issued four cheques bearing No. 265509, 265511, 265510 and 265523 for a sum of Rs. 2,10,000/-, Rs. 1,15,000/-, Rs. 1,15,000/- and Rs. 21,250/- respectively. However, upon presentation, the cheques were dishonoured. A sum of Rs. 15,84,010/- is stated to be outstanding which plaintiff is now claiming alongwith interest and litigation expenses.
Defendant's statement
3. Defendant filed written statement and took following objections that:
(i) suit is a gross misuse of law and was filed with vague and NIRJA evasive pleas:
BHATIA Digitally signed
(ii) privity of contract does not exist entitling the plaintiff to file by NIRJA BHATIA Date: 2024.07.26 16:14:41 +0530 the suit;M/s Maxposure Media Vs. Page No. 3 of 41
M/s Oyester Communication
(iii) this Court has no territorial jurisdiction.
(iv) the plaint is filed without cause of action. Pleas on merits
(v) defendant claimed that all transactions were based out of Bombay through officials Sh. Pratik and Ms. Hemlata at plaintiff's Mumbai office at 7/716, The Summit Business Bay-
Omkar, Andheri Kurla Road, Behind Gurunanak Pump, Andheri- East, Mumbai, who participated on behalf of plaintiff and defendant has no concern with plaintiff's Delhi office.
(vi) that release orders were issued in the name of Sh. Pratik and not in the name of plaintiff's company.
(vii) that plaintiff illegally raised invoices for publication of advertisement in magazines which never were circulated at airports and airlines during shut down and lock down, which commenced in March 2020 and on the false plea intends to extort money.
(viii) that the defendant approached the airport authorities and airlines authorities by way of RTI and some of them replied to defendant stating that circulation of magazines was stopped in the middle of March 2020 due to which defendant is not liable to pay any amount to the plaintiff.
(ix) it is contended that suit is bad for misjoinder of parties and plaintiff has failed to establish any involvement of defendant No. 3, Sh. Kailash Daima.
(x) that the suit is without cause of action as no order for NIRJA BHATIA publication is filed on record and hence invoices are not duly Digitally signed by NIRJA issued. It is alleged that under the garb of "aforesaid orders", the BHATIA plaintiff has tried to mislead the Court since no detail of any Date:
2024.07.26 16:14:50 +0530 orders as allegedly has been made over in the paras of plaint and M/s Maxposure Media Vs. Page No. 4 of 41 M/s Oyester Communication hence, there is no question or occasion for defendant's satisfaction to arise. Defendant claimed that the invoices are fabricated by the plaintiff due to which it has not filed any GST, ITR or balance sheet details for the respective years on record to corroborate the fact of outstanding.
(xi) the competence of Sh. Uma Shankar Joshi as AR to institute the suit is challenged and it is claimed that he has not filed any proof of authority and/ or board resolution in absence of which he cannot be considered competent to be AR of plaintiff.
(xii) the defendant has challenged that suit is not properly valued, there is no specific date mentioned which is now related in terms of newly enacted provisions of Commercial Courts Act.
(xiii) defendant claims that since there is no amount liable to be paid, there is no occasion to discharge of amounts in seven days and/ or liability to pay any delayed interest. Defendant denied having received any reminder. Receipt of legal notice claimed by the plaintiff is denied and it is alleged that postal receipts are manipulated.
(xiv) defendant further denied having handed over four cheques to the plaintiff towards payment of legal enforceable liability. It is claimed that the cheques as stated by plaintiff were lying with it for long time as security cheques and were handed over completely blank, however, plaintiff tried to misuse the cheques with ill motives.
Note of proceedings NIRJA BHATIA 4. Suit is presented on 08.06.2020 and the then Ld. Digitally signed by NIRJA District Judge (Comm. Court) was pleased to issue the process.
BHATIAThe defendants were served and appearance of counsel Sh. Date: 2024.07.26 16:15:01 +0530 M/s Maxposure Media Vs. Page No. 5 of 41 M/s Oyester Communication Devesh Malan was received on 06.01.2023 through video conferencing. Thereupon, liberty was given to file written statement by or before 24.01.2023. On 24.02.2023, it stands recorded in the course of proceedings that the plaintiff made a submission of having not received the copy of written statement. However, as per the annexures to the written statement, soft copy of the written statement was observed to be sent to the Ld. Counsel of plaintiff through email. The spare copy of written statement for plaintiff was also filed by the defendant which copy was supplied. Matter then was posted for receiving affidavit for admission/ denial and framing of issues on 27.03.2023, on which date plaintiff submitted that defendants have moved an application under Order 7 Rule 10 CPC which was filed alongwith written statement be replied upon which the time was extended with direction to file replication within two weeks. Replication then was filed on 27.04.2023. The application filed under Order 7 Rule 10 CPC as per submissions recorded in order dated 17.05.2023 was treated to have been filed as one under Order 7 Rule 11 CPC, which then was rejected on the ground that the pleas raised could not be decided without trial against order of 22.05.2023. Issues came to be framed on 19.07.2023 and parties were directed to lead evidence. After completion of examination and cross-examination of plaintiff's and defendant's evidence, the same were closed. Matter was then kept for NIRJA arguments.
BHATIA 5. During the defendant's evidence, an application under Digitally signed by NIRJA BHATIA Order 6 Rule 17 CPC came to be moved by plaintiff, which was Date: 2024.07.26 16:15:09 +0530 then allowed against order dated 15.03.2024.
M/s Maxposure Media Vs. Page No. 6 of 41M/s Oyester Communication Issues
6. The issues as framed vide order dated 19.07.2023 are as below:
1. Whether there is privity of contract between the plaintiff and the defendants? OPP
2. Whether this court has territorial jurisdiction to try the suit? OPP
3. Whether plaintiff is entitled to recover a sum of Rs.
11,15,000/- as principal amount and a sum of Rs. 4,68,510/- as pre suit interest at the rate of 24% per annum for the period April, 2020 to December 2021 as claimed? If yes, the amount and the defendants were liable to pay the amount to the plaintiff? OPP
4. Whether the suit is bad for misjoinder of defendant no. 3? OPD
5. Relief."
7. On conclusion of defendant's evidence, matter was kept for arguments. Sh. Naresh Gupta, Ld. Counsel for plaintiff had filed written submissions. Ld. Counsel for defendant made his submissions orally at length. At that stage, clarification was put forward as consequent to the amendment application under Order 6 Rule 17 CPC being allowed and amended plaint being taken on record on account of no objection having been made by the Ld. Counsel for the defendant, defendant has not availed opportunity to file amended written statement and/ or seeking to agitated no new issue which was extended. Ld. Sh. Devesh NIRJA BHATIA Malan, counsel for the defendant then expressed that since the Digitally signed amendment was formal in nature and proposed to only place on by NIRJA BHATIA Date:
2024.07.26 record the factum of change of name of plaintiff company, he 16:15:25 +0530 M/s Maxposure Media Vs. Page No. 7 of 41 M/s Oyester Communication was not desirous of filing any fresh written statement and/ or press for qua new issue.
Gist of evidence Plaintiff's evidence
8. During evidence, plaintiff examined PW-1 Uma Shankar Joshi. He tendered his evidence by way of an affidavit and exhibited the documents as below:-
1. Copy of certificate of incorporation as Ex. PW-1/1.
2. True copy of extract of Board Resolution as Ex. PW-1/2.
3. Copy of eight pending invoices dated 11.12.2019, 03.01.2020, 03.02.2020, 11.02.2020, 11.02.2020, 02.03.2020, 05.03.2020, 10.03.2020 issued to the defendants as Ex. PW-1/3 (colly).
4. Copy of eight relevant advertisements published in the magazines as Ex. PW-1/4 (colly).
5. Copy of the ledger as Ex. PW-1/5.
6. Office copy of the legal notice as Ex. PW-1/6.
7. Postal receipts as Ex. PW-1/7.
8. Copy of reply filed by the defendants as Ex. PW-1/8.
9. Copy of non-starter report dated 06.08.2021 as Ex. PW-1/9.
10. Certificate under Section 65-B Indian Evidence Act as Ex. PW-1/10.
9. He again tendered his further evidence by way of an affidavit upon an application being allowed vide order dated 16.01.2024.
1. Copy of eight relevant advertisements published in the NIRJA magazines as Ex. PW-1/4 (colly).
BHATIA Digitally signed by NIRJA
2. Ledger account as Ex. PW-1/5.
BHATIA Date: 2024.07.2616:15:34 +0530 3. Office copy of legal notice as Ex. PW-1/6.
M/s Maxposure Media Vs. Page No. 8 of 41M/s Oyester Communication
4. Postal receipts as Ex. PW-1/7.
5. Copy of reply received by the Ld. District Secretary as Ex. PW-1/8.
6. Non-starter report as Ex. PW-1/9.
7. Certificate under Section 65-B Indian Evidence Act as Ex. PW-1/10.
Gist of cross-examination
10. During cross-examination, PW-1 admitted that plaintiff has not filed minutes of meeting of board conducted on 16.07.2021.
11. He admitted that he was not aware of the Mumbai address of the plaintiff company, though the suggestion that the transactions between the parties materilised at Mumbai office was denied. He admitted that he has not filed the incorporation certificate to show the change of name of plaintiff company and stated that it may be checked from the ROC record.
12. As regards, the statement showing outstanding of Rs. 11,15,500/- he stated that it was not exclusively maintained pertaining to transactions of the defendant and averred that no such ledger singularly pertaining to defendant is filed on record. He then volunteered that the balance sheet itself is a proof of total outstanding.
13. He admitted that no communication of plaintiff with defendants No. 1, 2 or 3 is filed on record, though communication was exchanged.
14. He then claimed that release orders were received NIRJA however, admitted that release orders were not exhibited during BHATIA Digitally signed the examination affidavit and volunteered that they have been by NIRJA BHATIA Date: 2024.07.26 16:15:43 +0530 M/s Maxposure Media Vs. Page No. 9 of 41 M/s Oyester Communication filed on record. He stated that release orders were received by Sh. Prateek Mishra in Mumbai in email who was used to forward the same to the plaintiff company, though he further admitted that no such email is filed.
15. From Ex. PW-1/3 (colly), he stated that payment period of seven days is mentioned as "payment terms; 7 days net". However, he could not state the date of delivery of invoices to the defendant and no acknowledgment of receipt of invoices was also cited. He had not filed any courier slips to show any mode of dispatch of invoices, though he denied that invoices were not sent.
16. He claimed that plaintiff company is in possession of four cheques as stated in para 13 of the plaint which were presented and returned unpaid. It is stated no complaint was filed under any provision in connection with bouncing of cheques.
17. He denied that on account of lockdown in the month of March 2020, no airline was flying and there was no occasion for circulation of magazines in question and stated that plaintiff's claim is maintainable, at which stage he volunteered that by first of every month, publication is carried out and magazines are sent to airline authorities and airport authorities who thereafter retain the possession, circulate the magazines. He claimed that magazines in which the advertisements of defendant were published alongwith invoice were sent to defendant as a proof of publication, however, no proof of dispatch of such magazines in which advertisements of defendant were published having been NIRJA sent to defendant was filed on record. He denied that defendant BHATIA Digitally signed has not released any order for publication of advertisement.
by NIRJA BHATIA Date: 2024.07.26 16:15:51 +0530 M/s Maxposure Media Vs. Page No. 10 of 41M/s Oyester Communication
18. He admitted that there was no written agreement between the parties and claimed that the terms were agreed orally on the basis of release orders and was based on each order term. He claimed that terms of invoice are reflective of agreed terms which also find mention of demand of interest and no interest is required to be demanded separately.
19. He admitted that no proof of payment made by plaintiff magazines against publication carried out on behalf of defendant is filed and volunteered that it is a separate contract between the plaintiff company and publisher.
20. He denied that plaintiff has not made any payment to publishers against Ex. PW-1/4, at which stage, he volunteered that plaintiff itself is a publisher and there is no other publisher. He stated that rights are received from the airlines, at which stage he denied the suggestion that he was deposing falsely.
21. Plaintiff proposed to examine PW-2 Sh. Jatin Gupta, in addition to PW-1 Sh. Uma Shankar Joshi, however, after filing examination of his affidavit as Ex. PW-1/A, witness could not be produced for cross-examination and he was dropped from the array of witnesses.
Defendant's evidence
22. Defendant led its evidence through DW-1 Sh. Arjun Dayma, who tendered his examination affidavit and exhibited the documents as below:
NIRJA 1. True/ original copy of RTI's dated 22.11.2022, Mark A. BHATIA 2. Copy of replies to defendant's RTI as Ex. DW-1/1.Digitally signed
by NIRJA 3. True copy of defamation Legal Notice dated 25.06.2024 as Ex.BHATIA
DW-1/2.
Date: 2024.07.26 16:15:59 +0530 M/s Maxposure Media Vs. Page No. 11 of 41 M/s Oyester Communication
4. Print out of email communication as Ex. DW-1/3.
5. Certificate under Section 65-B Evidence Act as Ex. DW-1/4.
6. Eight release orders as Ex. DW-1/P-1 to P-8.
Gist of cross-examination
23. During cross-examination he averred that he has no idea as to how many orders were placed on plaintiff after being received from M/s Ebix-cash Work Money. He stated that release orders were given to Sh. Prateek at Mumbai office and that his reply to notice of mediation was drafted by his Counsel. Up till this, DW-1 was being examined through VC, however, Ld. Sh. Naresh Gupta, Advocate for plaintiff at that stage insisted for physical appearance of witness for cross-examination and moved an application. The said application was allowed vide order 30.05.2024, whereafter DW-1 appeared on 20.07.2024 and was cross-examined further.
24. During this process, DW-1 claimed that release order was sent by email and sometimes by physical mode. He stated that he is aware that plaintiff's head office is situated at Delhi.
25. He was confronted with release orders dated 28.11.2019, reference No. 651 (Ex. DW-1/P-1), release order dated 20.12.2019, reference No. 663 (Ex. DW-1/P-2), release order dated 24.01.2020, reference No. 680 (Ex. DW-1/P-3), release order dated 24.01.2020, reference No. 678 (Ex. DW-1/P-
4), release order dated 24.01.2020, reference No. 679 (Ex. DW- 1/P-5), release order dated 22.02.2020, reference No. 686 (Ex. NIRJA BHATIA DW-1/P-6), release order dated 22.02.2020, reference No. 688 Digitally signed (Ex. DW-1/P-7), release order dated 22.02.2020, reference No. by NIRJA BHATIA Date: 2024.07.26 16:16:07 +0530 687 (Ex. DW-1/P-8) and on being so confronted he replied that M/s Maxposure Media Vs. Page No. 12 of 41 M/s Oyester Communication he cannot say about these release orders were sent at plaintiff's Delhi office or at Mumbai office. He volunteered that he did not know as the matter is old. He denied the document Ex. PW-1/8 and challenged it on the ground that there was no occasion for any such communication after issuance of the above document. He could not say about invoices Ex. PW-1/3 (colly) having been received by the defendant and doubted that they were ever received. He was then shown Ex. DW-1/2 (legal notice) which was document of defendant and was asked about para 6 of Ex. DW-1/2, to which he claimed that the reply was prepared by his advocate after notice was received from mediation and claimed ignorance upon contents and did not know that in para 6 of above Ex. DW-1/2 reference was made to invoices Ex. PW-1/3 (colly).
26. He denied that the flights were discontinued w.e.f 25.03.2020 and stated that on different dates the decision of discontinuation was taken by different airports.
27. He claimed that Kailash Daima (D-3) has no role in defendant No. 1 M/s Oyster Communications and was only made partner on record for the purpose of formation of partnership. He denied any communication was made by Sh. Kailash Daima, though he admitted that he had not filed any document to show that Sh. Kailash Daima has no role and denied the suggestion that Sh. Kailash Daima is actively involved and is liable. The liability of any recovery of any amount as stated in the suit was denied.
Gist of Arguments NIRJA 28. Ld. Counsel for the plaintiff Sh. Naresh Gupta filed BHATIA Digitally signed written arguments and while making submissions in writing, he by NIRJA BHATIA Date: 2024.07.26 16:16:15 +0530 also claimed that on the strength of release orders Ex. DW-1/P-1 M/s Maxposure Media Vs. Page No. 13 of 41 M/s Oyester Communication to P-7 in the name of plaintiff company, the advertisements were published in the magazines of plaintiff company, against which invoices were issued. Part payment was made which shows that there is a "privity of contract" between parties.
29. As regards the issue of territorial jurisdiction, he claimed that plaintiff's head office is Unit No. 62, Ground Floor, Okhla, where all records are kept. Plaintiff is doing its business from aforesaid office. The magazines containing advertisements against Ex. PW-1/4 (colly) were published from registered office at Delhi. The invoices Ex. PW-1/3 (colly) were issued from its registered office at Delhi. Plaintiff company received the part payment which were received and accounted. The cheques were issued by defendant towards part payment were dishonoured in bank of plaintiff company situated within the territorial jurisdiction of this Court and hence, substantial part of cause of action arose within territorial jurisdiction of this Court. He averred that during the cross-examination, DW-1 admitted about him being aware that plaintiff company is having its head office in Delhi and the defamation notice Ex. DW-1/2 has been sent at the Delhi office of the plaintiff company.
30. In order to substantiate the claim of recovery he relied upon Ex. PW-1/3 (colly), the invoices (8 in number) being the advertisements published in respective magazines as Ex. PW-1/4 and release orders Ex. DW-1/P-1 to P-7. He claimed that plaintiff has relied upon document Ex. PW-1/8 a reply sent by defendant in response to pre-suit mediation filed by plaintiff company NIRJA wherein defendant admitted part liability Rs. 6,22,000/- in BHATIArespect to bill No. AI/19-20/1097 dated 11.12.2019 for a sum of Digitally signed by NIRJA BHATIA Rs. 7,750/-, bill No. VT/19-20/1193 dated 03.01.2020 for a sum Date: 2024.07.26 16:16:22 +0530 M/s Maxposure Media Vs. Page No. 14 of 41 M/s Oyester Communication of Rs. 1,20,750/-, VT/19-20/1328 dated 03.02.2020 for a sum of Rs. 1,20,750/-, AI/19-20/1362 dated 11.02.2020 for a sum of Rs. 1,62,750/-, AP/19-20/1370 dated 11.02.2020 for a sum of Rs. 2,10,000/-. However, the defendants were disputing the liability of bill No. VT/19-20/1439 dated 02.03.2020 for a sum of Rs. 1,20,000/-, AI/19-20/1484 dated 05.03.2020 for a sum of Rs. 1,62,750/- and AP/19-20/1499 dated 10.03.2020 for a sum of Rs. 2,10,000/- on false ground of Covid-19 and alleging the lockdown. It is stated that defendant through their own RTI replies have demolished their case which shows that display of magazines for passengers inside airports was stopped since 25.03.2020, which is admitted in pleadings (written statement page 26 and 29) which shows that magazines were not displayed for major period of March 2020 due to which defendants are not entitled to withhold the amounts.
31. It is averred that consequent to March 2020, the non-display of magazines was beyond the control of the plaintiff and since defendant did not invoke any force mejure clause, nor any such clause was existing, the defendant paid four cheques bearing No. 265509, 265511, 265510 and 265523 for amount of Rs. 2,10,000/-, 1,15,000/-, 1,15,000/- and 21,250/- respectively which were dishonoured. It is claimed that from the case of defendant it can be made out defendant is only disputing the invoices, in response of publication in the month of March 2020 editions. However, the suit is also filed for the invoices for the NIRJA BHATIA month of December 2019 to February 2020 as well which shows Digitally signed that defendant is not disputing the liability of Rs. 6,22,000/- i.e. by NIRJA BHATIA Date: 2024.07.26 16:16:30 +0530 invoices for the months of December 2019 to February 2020.
M/s Maxposure Media Vs. Page No. 15 of 41M/s Oyester Communication
32. Plaintiff then claimed that defendant is relying upon the legal notice dated 25.06.2021 Ex. DW-1/2 sent by defendant wherein it was admitted the issuance of release orders, receipt of invoices and pendency of invoices for the months of January 2020 to March 2020 due to Covid-19. Plaintiff then claimed that the threat of defamation was a false ground to intimidate the plaintiff and withhold legal payments.
33. It is averred that defendant has failed to dis-own the admission in Ex. PW-1/8 and Ex. DW-1/2. On contrary Ex. PW- 1/8 is admitted in written statement and Ex. DW-1/2 has been replied by defendant himself and any contradictory pleas are hence not permissible and since defendants have admitted their part liability in para 5 of the preliminary objections and submissions in respect of 5 invoices in written statement as well. It is stated in the light of above, the plaintiff has proved on record invoices Ex. PW-1/3 (colly) at the bottom of which interest @ 24% is stated specifically. Thus, entitling the plaintiff for principal and interest @ 24%. In answer to issue No. 2, plaintiff claims that the onus to prove this issue is upon defendant and the defendant has miserably failed to discharge the onus.
34. Ld. Sh. Naresh Gupta Advocate in order to meet the objection qua exhibition of documents Ex. DW-1/P-1 to P-7, confronted to witness DW-1 during cross-examination claimed that the objection was misplaced since the documents were filed earlier and were covered under Order 11 CPC applicable to Commercial Courts Act. He asserted that the witness did not deny these documents and just replied that he is not aware as to NIRJA BHATIA which office of plaintiff company he placed those release orders, Digitally signed by NIRJA BHATIA whereafter the same were exhibited.
Date: 2024.07.26 16:16:38 +0530 M/s Maxposure Media Vs. Page No. 16 of 41M/s Oyester Communication
35. It is averred that it is pertinent to mention that even otherwise the issuance of release orders has been admitted by the defendant in Ex. PW-1/8 and Ex. DW-1/2.
36. The plaintiff through arguments then, asserted that though authority of AR of plaintiff and the extract of board resolution in support, have been exhibited as Ex. PW-1/2, despite which since during the cross-examination the authority is challenged, and to counter the objection, Ld. Sh. Naresh Gupta relied upon the case law as cited in Union Bank of India Vs. Sh. Naresh Kumar and ors, AIR 1997, to claim that where the suit is contested to the hilt, the pleadings cannot be ignored on technical plea of lack of authority. Plaintiff further relied upon Pawan Kumar Dalmia and anr. Vs. HCL Infosystems Ltd, RFA No. 180/2004, wherein it is stressed that a person who is aware of the facts of the case and whose evidence is relevant in terms of Evidence Act is competent to depose. Plaintiff then claimed that written statement in the present suit was not supported with statement of truth which is a mandatory requisite and written statement in view thereof is required to be struck off. It is then asserted that the suit is filed against three defendants, defendants No. 2 and 3 being partners, whereas written statement is signed by defendant No. 2 with his supporting affidavit which tantamounts that defendant No. 3 has failed to prefer any written statement and hence, is defence is likely to be struck off. The plea of recovery is stressed.
NIRJA Arguments on behalf of defendant BHATIA Digitally signed
37. On the other hand, during submissions, Ld. Sh.
by NIRJA BHATIA Date: 2024.07.26 16:16:47 +0530Devesh Malan on behalf of defendant rejected the contentions of M/s Maxposure Media Vs. Page No. 17 of 41 M/s Oyester Communication the plaintiff on the ground of the fact that while confronting DW- 1, none of the documents which is purportedly an electronic evidence is either supported with affidavit of Order 11 Rule 6(3) Commercial Courts Act or Section 65-B of Indian Evidence Act. He asserted that documents were drawn with the help of a "Cam Scanner" which is a banned app by Government of India and such documents can neither be retrieved nor can be relied upon in evidence. He stressed that plaintiff has failed to prove its case of entitlement and no relief is made out for the reasons stated during the cross-examination.
38. I have heard the final arguments and have carefully perused the material and documents placed on record.
Discussion & Findings
39. Observations on the basis of the material placed through pleadings and evidence are being discussed issue-wise as below.
(1) Whether there is a privity of any contract between plaintiff and defendant:
A. Privity of contract: release orders whether proved.
40. Ld. Sh. Naresh Gupta in response to the above issue has filed his written submissions and has heavily relied upon the release orders Ex. DW-1/P-1 to P-7 stating that the aforementioned release orders have sufficiently shown the privity of contract and consequent to the aforementioned release orders, the magazines were published and invoices were raised.
NIRJA 41. However, it is pertinent to note that release orders BHATIA were not brought in evidence by plaintiff and were put to DW-1 Digitally signed Sh. Arjun Dayma in confrontation during cross-examination at by NIRJA BHATIA Date: 2024.07.26 16:17:04 +0530 M/s Maxposure Media Vs. Page No. 18 of 41 M/s Oyester Communication which stage, Ld. Sh. Devesh Malan had raised an objection to the nature of the documents and mode of exhibition.
42. While the confrontation of the witness with the documents is upheld by the Hon'ble Supreme Court in Mohd. Abdul Wahid Vs. Nilofer and ors, Cilvil Appeal No. ...... of 2023, (Arising out of SLP (Civil) 14445/2021), it is settled law that mere confrontation would not convert an evidence into proof, which is required to be proved by the party putting the document, in this case the plaintiff. The perusal of documents Ex. DW-1/P-1 to P-8, shows that the documents are "nomenclatured as - advertisement, release orders" and bearing dates 28.11.2019 (Ex. DW-1/ P-1), 20.12.2019 (Ex. DW-1/ P-2), 24.01.2020 (Ex. DW-1/ P-3), 24.01.2020 (Ex. DW-1/ P-5), 22.02.2020 (Ex. DW- 1/ P-6), 22.02.2020 (Ex. DW-1/ P-7) and 22.02.2020 (Ex. DW-1/ P-8) , however all are photocopies. It is required to be taken note that at no stage plaintiff has denied their receipt in which scenario the original release orders must have been in plaintiff's own possession, despite which the original release orders are not placed on record. The plaintiff who claimed that documents were filed with plaint itself as per the provisions of Order 11 Rule 6(3) CPC applicable to Commercial Court Act was obligated to submit original documents and also state specifically the source of its receipt in its statement of truth and declaration on oath.
43. At this stage, it is the statement of plaintiff in connection with the aforementioned release orders which is material to note. PW-1 Sh. Uma Shankar Joshi during his NIRJA examination affidavit stated specifically about these release BHATIA Digitally signed orders in para 4 as below:
by NIRJA BHATIA Date: 2024.07.26 16:17:11 +0530 "However, the release orders were not exhibited."M/s Maxposure Media Vs. Page No. 19 of 41
M/s Oyester Communication
44. Consequently, when he stood in cross-examination, he claimed that the orders were received from defendants which are filed on record admitting that the release orders were in possession of the plaintiff since beginning and were not new documents, despite which plaintiff avoided to explain the reason of his not exhibiting the documents on record. Further though the documents were proposed to elicit truth upon Ex. DW-1/P-1 to P- 7, by throwing surprise, the documents for want of any novelty in them were incapable of achieving any such purpose and could not be called as documents fit for confrontation. Rather the failure of plaintiff to file original at any stage of proceedings itself showed the reason as why they were brought during cross- examination. However, even at this stage, plaintiff ignored the law and failed to note that a witness could not be confronted with photocopies. The plaintiff did not exhibit the above documents during the exercise of its own examination despite stating about these release orders in its affidavit. More precisely in examination affidavit, wherein it is mentioned as "the defendant placed order to publish the advertisements in the aforesaid Magazine of the plaintiff company namely "Airport India", "Subh Yatra" and "Vistara".
45. Moreover, while PW-1 in his cross-examination denied having any knowledge of plaintiff having office at Bombay which fact appears to be improbable as well as of knowing any company official at Bombay he admitted that the NIRJA release orders were never received by him. He claimed that they BHATIA were received by their sales official Sh. Prateek Mishra in Digitally signed Mumbai by email who was used to forward the same to them. It by NIRJA BHATIA Date: 2024.07.26 16:17:19 +0530 is necessary to take note that the documents were not forwarded M/s Maxposure Media Vs. Page No. 20 of 41 M/s Oyester Communication by any official of defendant directly to the witness but the witness is in receipt of documents through its own official. In such circumstance, Sh. Prateek Mishra, sales person, who received these emails, was the best person who should have been brought for proving the receipt of release orders on his email. Further, even at this stretch of statement, PW-1 who claimed that the release orders were received through email, did not file any email in support which fact is again admitted his cross- examination where he states that "it is correct that no email is filed on record." It is required to be noted that no explanation for above is made or tendered at any stage including arguments which kept the doubts intact on the competence of these documents from being treated as proof of a fact, as no part of chain of transaction of the occurrence of these facts from defendant to Prateek Mishra and from Prateek Mishra to PW-1 is brought on record. Plaintiff could not have avoided to place on record the e-mails received by Prateek Mishra from defendant, since Prateek Mishra is the employee of plaintiff, and it is to be assumed that the emails must have been received if were received in legitimate course of transaction of business on official emails and must have been forwarded following same path and would have been forwarded to PW-1 before drafting of the suit. In circumstances above, the vacuum created by the plaintiff by not bringing the emails and Sh. Prateek Mishra as the transactor of business upon which the entire premise of the transaction laid, plaintiff has created a detriment to credibility of its own statement.
NIRJA BHATIA 46. Further, the act of omission of proving these Digitally signed by NIRJA BHATIA Date: 2024.07.26 16:17:29 +0530 documents (Ex. DW-1/P-1 to P-8) in examination in chief and M/s Maxposure Media Vs. Page No. 21 of 41 M/s Oyester Communication then inserting them through the cross-examination of DW-1 hints at an attempt of extracting exhibition mark, while knowing fully well, that by mere marking of documents as exhibit the same would not tantamount to its proof as is already held in numerous case laws and more prominently in R. V. E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V. P. Temple & AR, Appeal (Civil) 10585 of 1996.
47. At the stage of arguments while the objection was raised in rebuttal, it was stated that the documents were submitted alongwith the plaint and are supported with statement of truth filed by the plaintiff. Had the same been the case, the documents do not qualify capable for being brought in confrontation. The plaintiff was duty bound to prove its own document through the mode suggested in terms of law. Plaintiff cannot play with the procedure by firstly avoiding to file the original documents on record and exhibiting them through its own evidence.
B. No proof of publication
48. During the course of arguments, the plaintiff was inquired about having carried out the work of publication in terms of the assertion that the defendant had placed orders for publication upon it. This was lying at the crux of dispute on which plaintiff claimed its entitlement. In order to establish the default of defendant to pay as alleged, plaintiff was duty bound to prove that it carried out the work of printing and publishing the NIRJA BHATIA advertisements. It is material to note that irrespective of any Digitally signed written contract, the proof of execution of work as per command by NIRJA BHATIA Date: 2024.07.26 16:17:36 +0530 and requirement of defendant would have strengthened the M/s Maxposure Media Vs. Page No. 22 of 41 M/s Oyester Communication plaintiff's claim of parties having a privity of contract as even an oral agreement is recognized by law once the proof of its execution is shown.
49. In order to discharge the burden which was on the plaintiff as the claim is filed by the plaintiff, and the onus was also upon plaintiff to prove, the plaintiff relied upon Ex. PW-1/4 (colly) to show the execution of work, however, these documents were exhibited collectively as pages 34 to 256 of paperbook " the copy of relevant advertisement" being photocopies. During the cross-examination, witness admitted that no proof of dispatch of magazine in which the advertisement of defendant was published having been sent to defendant is placed on record. This statement came after it was asserted that the magazines in which the advertisements of defendant were published alongwith invoices were sent to defendant as a proof of publication.
50. The aforesaid statement clearly shows that there is no competent proof of publication which has been filed by the plaintiff to show its entitlement qua any work having been carried out.
Admissibility of PW-1/8 i.e. alleged reply of defendant in mediation proceedings
51. At the stage of arguments when the aforementioned was asked from the Ld. Counsel for the plaintiff, he relied upon Ex. PW-1/8. It was asserted vehemently that Ex. PW-1/8 is the copy of reply of notice sent by DLSA, South-East in which reply NIRJA BHATIA the defendant admitted the execution of work and its liability.
Digitally signedby NIRJA BHATIA Before adverting to the virus of this document, it is necessary to Date: 2024.07.26 16:17:44 +0530 take note that admittedly, the aforementioned is the reply sent to M/s Maxposure Media Vs. Page No. 23 of 41 M/s Oyester Communication Secretary, Legal Service and is not directed to the defendant and is a photocopy. The aforementioned document finds no mention in Ex. PW-1/9 which is a non-starter report in which it is specifically stated under the signature of authority of Legal Service in para 6 "Non-starter report- reason Despite issue of two notices neither the opposite party appeared nor any intimation received for the mediation. Hence the process of mediation is treated as non-starter". The copy of non-starter has been forwarded to both parties. There is no mention that the aforementioned reply purportedly addressed to the legal service authority, District South-East was ever handed over to plaintiff with which the non-starter report is furnished. The plaintiff has not stated specifically the source of it getting the document nor has brought the person who received the reply as there is no direction for providing the copy of this document to the plaintiff. The mode of securing this document hence is to be doubted.
52. Apart from the above, it is also required to be taken note that the proceedings carried out under the scope of mediation are confidential in nature and no part of it can be brought in evidence to impute the other side. The mediator as well as the parties enjoy a complete immunity from being called in witness-box as witness. The Mediation and Conciliation Rules approved by Hon'ble Delhi High Court are made part of Civil Procedure Code, which have been formulated and adopted consequent to the directions of Hon'ble Supreme Court in Salem NIRJA BHATIA Advocate Bar Association Vs. Union of India, Writ Petition Digitally signed by NIRJA BHATIA (Civil) 496/2002 and are reproduced for reference as below:
Date: 2024.07.26 16:17:51 +0530"Rule 20: Confidentiality, disclosure and inadmissibility of information M/s Maxposure Media Vs. Page No. 24 of 41 M/s Oyester Communication
(a) When a Mediator/Conciliator receives factual information concerning the dispute(s) from any party he shall disclose the substance of that information to the other party so that the other party may have an opportunity to present such explanation as it may consider appropriate.
Provided that, when a party gives information to the Mediator/Conciliator subject to a specific condition that it is kept confidential, the Mediator/Conciliator shall not disclose that information to the other party
(b) Receipt or perusal, or preparation of records, reports or other documents by the Mediator/Conciliator, while serving in that capacity shall be confidential and the Mediator/Conciliator shall not be compelled to divulge information regarding those documents nor as to what transpired during the Mediation/Conciliation before any Court or tribunal or any other authority or any person or group of persons.
(c) Parties shall maintain confidentiality in respect of events that transpired during the Mediation/Conciliation and shall not rely on or introduce the said information in other proceedings as to :
(i) Views expressed by a party in the course of the Mediation/Conciliation proceedings;
(ii) documents obtained during the Mediation/ Conciliation which were expressly required to be treated as confidential or other notes, drafts or information given by the parties or the Mediator/Conciliator;
(iii) Proposals made or views expressed by the Mediator/Conciliator.
(iv) Admission made by a party in the course of Mediation/Conciliation proceedings;
(v) The fact that a party had or had not indicated NIRJA willingness to accept a proposal.
BHATIA Digitally signed (d) There shall be no audio or video recording of the by NIRJA BHATIA Mediation/Conciliation proceedings. Date: 2024.07.26 16:17:59 +0530 (e) No statement of parties or the witnesses shall be recorded by the Mediator/Conciliator.
M/s Maxposure Media Vs. Page No. 25 of 41M/s Oyester Communication
53. In light of above rules, the effort of plaintiff to bring on record Ex. PW-1/8 as a proof of admission is an attempt which needs to be discarded.
54. As the plaintiff could not show any document towards any direction for receipt of work by way of any release orders, execution of work by way of publication and reliance upon Ex. PW-1/8 has yielded no credence, the only material left with plaintiff upon which the reliance is now being placed are the invoices, eight in number and exhibited as Ex. PW-1/3 (colly) as well the ledger Ex. PW-1/5.
Appreciation of value of PW-1/3 (colly) and Ex. PW-1/5 in evidence
55. I now come to discuss the evidentiary value of document Ex. PW-1/3 (colly) which are invoices. Plaintiff has exhibited tax invoice dated 11.12.2019 against invoice No. AI/19-20/1097, buyer's order No. 651 for Rs. 1,62,750/-; tax invoice dated 03.01.2020 against invoice No. VT/19-20/1193, buyer's order No. 663 for Rs. 1,20,750/-; tax invoice dated 03.02.2020 against invoice No. VT/19-20/1328, buyer's order No. 680 for Rs. 1,20,750/-; tax invoice dated 11.02.2020 against invoice No. AI/19-20/1362, buyer's order No. 678 for Rs. 1,62,750/-; tax invoice dated 11.02.2020 against invoice No. AP/19-20/1370, buyer's order No. 679 for Rs. 2,10,000/-; tax invoice dated 02.03.2020 against invoice No. VT/19-20/1439, NIRJA BHATIA buyer's order No. 686 for Rs. 1,20,750/-; tax invoice dated Digitally signed by NIRJA BHATIA 05.03.2020 against invoice No. AI/19-20/1484, buyer's order No. Date: 2024.07.26 688 for Rs. 1,62,750/-; tax invoice dated 10.03.2020 against 16:18:05 +0530 M/s Maxposure Media Vs. Page No. 26 of 41 M/s Oyester Communication invoice No. AP/19-20/1499, buyer's order No. 687 for Rs. 2,10,000/-.
56. All the aforementioned are bearing both stamp and initials of an official of plaintiff. At first, the initials are pointed to be that of PW-1 Sh. Uma Shankar Joshi. Plaintiff did not bring the official who made these invoices. This indicates that invoices were drawn at the stage of filing of suit only, and are not kept in course of business as per expectation of Section 34 of Evidence Act and fails to meet the requisite of proof.
57. When read in conjuction with document Ex. PW-1/10, which is stated to be certificate under Section 65-B Indian Evidence Act, again fail to satisfy the rigors of Section 65-B Evidence Act as certificate which is bearing the stamp of plaintiff and is executed by Sh. Uma Shankar Joshi, AR of plaintiff claims in para 2 of the certification as below:
"That for the purpose of the present suit, I have filed various computer print outs as detailed in the list of documents of the present suit. All the contents of the computer printouts were stored in the computer of the plaintiff company and prints have been taken from the computers and printers of the plaintiff company which are regularly used in ordinary course of business of the plaintiff company."
58. The aforesaid is an incomplete statement and does not qualify as proper certification under Section 65-B Indian Evidence Act which calls for a certificate to have to mention as below:
"Section 65B. Admissibility of electronic records. NIRJA BHATIA (1) Notwithstanding anything contained in this Act, any information contained in an electronic record Digitally signed by NIRJA BHATIA which is printed on a paper, stored, recorded or copied Date: 2024.07.26 16:18:12 +0530 in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall M/s Maxposure Media Vs. Page No. 27 of 41 M/s Oyester Communication be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents;
and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
NIRJA (3) Where over any period, the function of storing BHATIA or processing information for the purposes of any Digitally signed by NIRJA BHATIA activities regularly carried on over that period as Date: 2024.07.26 16:18:19 +0530 mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
M/s Maxposure Media Vs. Page No. 28 of 41M/s Oyester Communication
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying NIRJA a responsible official position in relation to the BHATIA operation of the relevant device or the Digitally signed management of the relevant activities (whichever by NIRJA BHATIA is appropriate) shall be evidence of any matter Date: 2024.07.26 16:18:26 +0530 stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be M/s Maxposure Media Vs. Page No. 29 of 41 M/s Oyester Communication stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; --
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
59. The parallel of the aforementioned provision has been inserted in Order 11 Rule 6(3) CPC which for reference is extracted as below:
"(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify-
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
NIRJA (c) the dates and time of preparation or storage or BHATIA issuance or receipt of each such electronic record; by NIRJA BHATIA (d) the source of such electronic record and date and Digitally signed Date: 2024.07.26 16:18:49 +0530 time when the electronic record was printed;
(e) in case of e-mail ids, details of ownership, custody and access to such e-mail ids;
M/s Maxposure Media Vs. Page No. 30 of 41M/s Oyester Communication
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used to preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource."
60. Ex. PW-1/10 hence neither satisfies the requisites of Section 65-B of Indian Evidence Act nor of Order 11 Rule 6(3) CPC and cannot be treated to be a proper authentication of the prints out of the electronic documents and hence, falls considerably short of proof. Coming to the ledger which is Ex. PW-1/5 commencing w.e.f 01.04.2019 to 31.03.2020, the ledger running into three pages suffers from same infirmities and cannot be treated to qualify as proof of print of electronic document. In view thereof, the plaintiff's claim finds no space, on basis of which it can be stated that plaintiff has filed any proof of transaction, incurring of expense on account of carrying the said transaction on being commanded by defendant having been asked for a said amounts qua admittedly, no communication again is filed as is stated by PW-1 as below:
"I have no idea that any communication of plaintiff company with defendant No. 1, 2 and 3 is filed on NIRJA record. It is wrong to suggest that the communication BHATIA between plaintiff company and defendants No. 1, 2 Digitally signed and 3 is deliberately withheld. At this stage that Date: 2024.07.26 communication regarding outstanding is exchanged, by NIRJA BHATIA 16:18:56 +0530 however, it is not filed on record."M/s Maxposure Media Vs. Page No. 31 of 41
M/s Oyester Communication
61. The plaintiff has not stated any reason whatsoever for exercising its discretion of not filing the pertinent piece of exchange of communication between the parties which could have strengthened its own case, which fact is again admitted as below:
"I have not filed any whatsapp chat and/or email chat to suggest that outstanding was demanded and/ or followed up was conducted."
62. Another blow that plaintiff caused to its own case is by way of not filing the cheques which have been claimed to have been received against part payments of outstandings due and on presentation had allegedly been dishonoured. It is interesting to note that PW-1 Sh. Uma Shankar Joshi stated in para 13 as below:
"In the month of March, 2020, the defendants paid four cheques bearing No. 265509, 265511, 265510 and 265523 for a sum of Rs. 2,10,000/-, Rs. 1,15,000/-, Rs. 1,15,000/- and Rs. 21,250/- respectively, however, all the aforesaid cheques were dishonoured on their presentation."
63. No reason has been caused on record for omission of filing these cheques and/ or related slips of presentation and dishonouring as it would have helped drawn inference of presumption under Negotiable Instrument Act in favour of plaintiff. In cross-examination, the witness could not state NIRJA categorically even about the number of cheques as he stated " the BHATIA plaintiff company is in possession of the four cheques stated in Digitally signed by NIRJA BHATIA Date: 2024.07.26 para 13 of the plaint. The cheques were presented and were 16:19:03 +0530 returned unpaid. Vol. I am not sure whether the total number of M/s Maxposure Media Vs. Page No. 32 of 41 M/s Oyester Communication cheques were four or five. No complaint was filed under any provision in connection with bouncing of cheques."
64. Ld. Sh. Naresh Gupta in course of his written submissions relied upon reply Ex. DW-1/11 received by defendant in response to its RTI application and claimed that defendant has "demolished its own case". While relying on RTI reply Ex. PW-1/11, in order to state that the display for magazine for passengers inside airport was stopped since 25.03.2020. In crux, he intended to underline that the defence raised by the defendant by claiming that since there was no circulation of magazines defendant was not liable to pay was not a cogent ground for withholding the payment. However, he omitted to check that before seeking to prove its case through negative assertions of defendant whether the positive assertions made by the plaintiff were proved duly in first place. The law in respect as to how a fact is to be proved and who has to discharge the burden of proof has been discussed by Hon'ble Supreme Court in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558 , and has taken note as below:
"19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to NIRJA indicate the duty of bringing forward evidence in BHATIA support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against Digitally signed all counter-evidence; and (iii) an indiscriminate use in by NIRJA BHATIA Date: 2024.07.26 which it may mean either or both of the others. The 16:19:11 +0530 elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out M/s Maxposure Media Vs. Page No. 33 of 41 M/s Oyester Communication a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
65. Even if the defence raised by defendant is discarded by this Court, the question is whether the plaintiff has proved its case sufficiently and has met with all the requisite parameters set by law of evidence to display that the evidence is of such nature which shows credence and is superior to the controversion led and is hence, can be taken as reliable statement for seeking corroboration of the pleas set out in the pleadings.
66. The bare perusal of the material placed on record as discussed in foregoing paras suggests that plaintiff is trying to prove its case from the statements of defendant without first discharging its own burden. In which background, the averrment that the lockdown imposed since 25.03.2020 being sufficient ground for imposing force majoure is a plea which is beyond the scope of discussions. Moreover, when the invoices on which the plaintiff's case is based are all raised prior to March 2020, while stating that defendant is only asserting to dispute the invoices and not actual publication of advertisements plaintiff forgot that it was the duty of plaintiff to bring the proof of publication in first place to demonstrate the virus of invoices.
67. Ld. Sh. Naresh Gupta, relied upon Ex. DW-1/2, the legal notice sent by Counsel of defendant dated 25.06.2021 and claimed that it tantamounted to an admission on behalf of NIRJA BHATIA defendant of pending liability. Though, the statement made in the Digitally signed by NIRJA legal notice is not in harmony with the pleas of defendant and BHATIA DW-1 Sh. Arjun Dayma who was put the contents of notice Ex. Date: 2024.07.26 16:19:19 +0530 DW-1/2 took a feeble plea in denial by stating that the notice is M/s Maxposure Media Vs. Page No. 34 of 41 M/s Oyester Communication drafted by the counsel, the question that emerges is whether on the strength of Ex. DW-1/2 alone, the plaintiff can claim that defendant has made an admission "which tantamounts to a sufficient proof for this Court to pass a favourable order and whether the contents of defamation legal dated 25.06.2021 Ex. DW-1/2 on its own strength would qualify as an admission of liability by defendant."
68. In order to make aforementioned assessment, it is required to take note of the provisions of Section 17 of Indian Evidence Act, which reads as below:
Section 17. Admission defined.
An admission is a statement, 1[oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
69. Further, the provisions of Section 18 make a reference of admission made by a party or its agent and are extracted below:
"18. Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject matter; by person from whom interested derived.
Statements made by a party to the proceeding, or by an agent to any such party, whom the Court, regards, under the circumstances of the case, as expressly or impliedly authorized by him to make NIRJA them, are admissions. Statements made by parties BHATIA to suits, suing or sued in a representative character, are not admissions, unless they were made while Digitally signed by NIRJA the party making them held that character. Date: 2024.07.26 Statements made by - BHATIA 16:19:28 +0530 (1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, M/s Maxposure Media Vs. Page No. 35 of 41 M/s Oyester Communication and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements."
70. In Banarsi Das Vs. Seth Kanshi Ram and others, 1963 AIR 1165, it is held that admission functions as prima facie evidence and can potentially create an estopple effect. Further, it is noted that their evidentiary strength is relatively weak and Court may reject them if proven otherwise. Further, in Bishwanath Prasad and ors. Vs. Dwarka Prasad (dead) and others, 1974 AIR 117, it is clarified that admission while not serving as conclusive proof of the matter admitted, hold substantive value in themselves. Importantly, the admissibility of admission is not contingent upon the party making them appearing as witness even if a party is not called as a witness admission remains admissible as evidence. However, without going into further discussion, the bare reading of the document Ex. DW-1/2 falls way short of being called an admission as it lacks details of material particulars which fact is demonstrated through Sh. Naresh Gupta who during cross-examination, put Ex. DW-1/2 to witness and elicited reference to para 6 claiming that it is referring to invoices. The intent of the question clearly suggested that the document on its face value was incapable of NIRJA BHATIA any such meaning being drawn.
Digitally signed71. The bare perusal of the legal notice which has been by NIRJA BHATIA Date: purportedly claimed to be issued as defamation notice under 2024.07.26 Section 499 IPC, finds no mention of any specifications 16:19:35 +0530 M/s Maxposure Media Vs. Page No. 36 of 41 M/s Oyester Communication pertaining to transaction, release orders, the amounts incurred against the cost of release order, the delay of the invoices raised upon the defendant, the admission of any quantum of dues or statement of outstanding, there is no admission of any specific facts or figures as is claimed by the plaintiff in the pleadings. A generic denial coupled with reflections have been made for which the counsel has made no clarity except stating the financial duress due to Covid-19 would not make admission. At most, the aforementioned notice can only be read as an admission of acquaintance of parties in certain capacity engaging in carrying out the work. However, it falls much short of any proof of specific transactions and omission of defendant to honour its liability. In circumstance above, the legal notice alone does not tantamount to proof of admission of liability as is being proposed.
Territorial Jurisdiction
72. Coming to the pleas of territorial jurisdiction, the Ld. Counsel for the defendant has raised the objection to the maintainability of present suit under the jurisdiction of this Court. It has been claimed that the parties interacted at Mumbai and no part of any interaction ensued giving any cause of action at Delhi, entitling the plaintiff to file the suit in this Court. On the other hand, Ld. Counsel for the plaintiff Sh. Naresh Gupta relied NIRJA upon the part of cross-examination of DW-1 Sh. Arjun Dayma BHATIA and asserted that defendant all through was aware that plaintiff is Digitally signed by NIRJA having its head office at Delhi, however, the mere fact that BHATIA plaintiff's head office is at Delhi would not be sufficient to give Date:
2024.07.26 16:19:44 +0530 jurisdiction to Delhi Courts unless any part of transactions has M/s Maxposure Media Vs. Page No. 37 of 41 M/s Oyester Communication taken place giving any cause of action specifically to plaintiff to file the suit in Delhi. The provision in this context is detailed in Section 20 CPC which is extracted for reference below:
"Section 20. Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c)The cause of action, wholly or in part, arises."
73. In the written submissions, it was stressed that plaintiff is having its head office at Unit No. 62, ground floor, Okhla, Phase-III, New Delhi, at which place it is maintaining record and is doing business. However, mere keeping of record at head office and doing business at head office unless the said NIRJA business is proved to be transacted with defendant and by the BHATIA officials of defendant would not give any cause of action. The Digitally signed claim of plaintiff that from the aforementioned office the by NIRJA BHATIA Date: 2024.07.26 16:19:52 +0530 publication of magazines has taken place is not established as its reliance on Ex. PW-1/4 (colly) has been discarded in foregoing M/s Maxposure Media Vs. Page No. 38 of 41 M/s Oyester Communication paras. Further, invoices Ex. PW-1/3 (colly) have also fallen short as proof. The defendant claimed that defendant made part payment to plaintiff company, however, has not brought on record any proof of payment. Plaintiff even withheld cheques as stated in para 13 of examination affidavit and did not file any proof of its presentation or dishounouring. There has been no submission to suggest that the part of cause of action arose at Delhi. Merely receipt of defamation notice Ex. DW-1/2 would not give a cause of action to plaintiff to file the suit at Delhi. While admittedly as per statement of PW-1 all the release orders involved in the transactions were raised by sales executive Sh. Prateek Mishra at Bombay office. The assertion of PW-1 himself as is noted "release orders were received by sales person Prateek Mishra in Bombay office by email who were used to forward the same to us". In circumstances above, there is no material to suggest that Court at Delhi has any jurisdiction as no cause of action in favour of plaintiff is disclosed at Delhi. Even the release orders though the evidentiary value of these release orders have been discussed above in negative favour of plaintiff since they are document filed by the plaintiff as well as invoices Ex. PW-1/3 and Ex. PW-1/4 respectively are both drawn at Mumbai address of the defendant.
Competence of AR of plaintiff to file and verify suit
74. Another argument has been raised regarding competence of PW-1 to file the present suit. In order to assert the NIRJA BHATIA capacity of PW-1, Ld. Sh. Naresh Gupta relied upon the law Digitally signed by NIRJA settled in Union Bank of India Vs. Sh. Naresh Kumar and ors., BHATIA Date: 2024.07.26 16:20:01 +0530 AIR 1997 and in Pawan Kumar Dalmia and anr. Vs. HCL M/s Maxposure Media Vs. Page No. 39 of 41 M/s Oyester Communication InfoSystem Ltd., RFA No. 180/2004. However, the context of the both of aforementioned judgments has been misdrawn to the facts of the present case. The controversy involved regarding the capacity of PW-1 in the present case is not pertaining to his having no knowledge of facts and circumstances and/or being an incapable witness, but the dent is being made to his authority to file pleadings and verify the same. The counsel for defendant has vehemently raised in cross-examination the questions pertaining to above. It is admitted in response by PW-1 himself that he has not filed the minutes of meeting of the board held on 16.07.2021, from which the genesis of ratification of his authority is claimed. While there may be no dispute that while working as official of plaintiff, he may have gained knowledge of facts and circumstance and may have also exercised participation for the reason that he claimed himself as Manager (Finance) with plaintiff and drew the documents from plaintiff company's computer system before filing the suit and may have become versed on the basis of record. Nonetheless the question here is involved about the ratification of his authority. There is no proof of the same and in absence thereof, his competence to file the suit and depose as the person competent to institute the proceedings in first place are not established. The aforesaid question has also been discussed in Mohd. Abdul (supra). In light of the provisions of Section 3 of Evidence Act his candidature as a witness though NIRJA is not dis-spelled, he still suffers from incapacity imparted to his BHATIA character by virtue of failure of compliance of provisions of Digitally signed by NIRJA BHATIA Date: Order 6 Rule 14, 15 and 15-A as a proof of authority which has a 2024.07.26 16:20:09 +0530 consequences to follow as per the Order 6 Rule 16 CPC.
M/s Maxposure Media Vs. Page No. 40 of 41M/s Oyester Communication
75. In view of the aforementioned, the claim of the plaintiff has not been duly established in terms of preponderance of probabilities and I am constraint to dismiss the same with no orders to cost.
76. File be consigned to Record Room after completion of necessary formalities. Digitally signed by NIRJA NIRJA BHATIA Date:
BHATIA 2024.07.26
16:20:15
+0530
Announced in open Court (Nirja Bhatia)
today on 26th July, 2024 District Judge
(Comm. Court) (Digital-07)
South-East, Saket Court, New Delhi
M/s Maxposure Media Vs. Page No. 41 of 41
M/s Oyester Communication