Bangalore District Court
Muscat Pharmacy And Stores Llc vs 5M F And G Trading Private Limited on 28 January, 2026
IN THE COURT OF LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU. (CCH-90)
Present: Sri.K.M.RAJENDRA KUMAR., LLM, M.Phil,
LXXXIX Addl.City Civil & Sessions Judge, Bengaluru.
DATED THIS THE 28th DAY OF JANUARY 2026
Com.O.S.No.231/2022
PLAINTIFF: Muscat Pharmacy and Stores
LLC.,
P.O.Box:438, Postal Code 100,
Muscat, Sultanate of Oman,
Represented by its
Authorized Representative
Shri.Sanjay Vijay Batheja.
(By M/s.Keystone Partners,
Advocate)
Vs.
DEFENDANT: 5M F & G Trading Private
Limited,
Company incorporated under the
Companies Act, 2013,
Having its registered office at
No.647, 1st Floor, 2nd Main,
7th Block, 2nd Phase,
Banashankari 3rd Stage,
Hosakerehalli Cross,
/2/
Com.O.S.No.231/2022
Bengaluru-560 085,
Represented by its
Director,
Sri.Naresh Kumar.
(By Sri.S.Rajashekar, Advocate)
Date of Institution of suit : 10.02.2022
Nature of suit : Money Suit
(suit on pronote, suit for
declaration and
possession suit for
injunction, etc.,)
Date of commencement of : 28.10.2024
recording of evidence
Date of judgment : 28.01.2026
Total duration : Year/s Month/s Day/s
03 11 18
(K.M.RAJENDRA KUMAR)
LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE,
BENGALURU. (CCH-90)
JUDGMENT
The plaintiff has filed this suit against the defendant to pass a Judgment and decree directing the defendant to pay a sum of USD 150,600 (US Dollars One Hundred Fifty Thousand Six Hundred) towards refund of a portion of the /3/ Com.O.S.No.231/2022 sale consideration, together with interest thereon @ 12% p.a. from the date of the suit until payment; directing the defendant to pay the plaintiff a sum of USD 7524 (US Dollars Seven Thousand Five Hundred Twenty Four) towards reimbursement of import duty paid by the plaintiff together with interest thereon @ 12% p.a. from the date of the suit until payment and for costs and such other reliefs in the facts and circumstances of the case The brief facts of the plaintiff's case are as under:
02. That, the plaintiff is Oman's largest worldwide distributor of pharmaceutical and healthcare products.
03. That, in September 2020, the plaintiff received an order for a large number of face masks. That, upon making inquiries the plaintiff approached one Mr.Jacob Nicholas, an agent and resource person of Sandhu Products Inc., California, United State of America and expressed its interest in producing N95 masks on an urgent basis to supply the same to their customer.
04. That, the said agent introduced the defendant to the plaintiff. Pursuant to negotiation, the defendant agreed to sell and supply 2,00,000 N95 1860S model respirators/ /4/ Com.O.S.No.231/2022 masks to the plaintiff for a total consideration of USD 6,00,000.
05. That, in view of the plaintiff's urgent requirement, the plaintiff agreed to get the entire consignment delivered by air transport, which is the most expensive form of transport for cargo and also agreed to pay the entire sale consideration in advance to the defendant on the understanding that the defendant shall supply the entire consignment within 8 days from the date of purchase orders.
06. That, accordingly, the plaintiff issued to the defendant a purchase order, dated 17.09.2020 bearing No.M8A/2020/AKS 209007 for supply of 200,000 N95 masks at the rate of USD 3.00 per piece, aggregating to USD 600,000.00 by air freight within 2 weeks.
07. That, on 21.09.2020, the plaintiff paid the defendant the entire sale consideration amount of USD 600,000.00 in advance. That, however, in spite of having committed to deliver the entire consignment within 2 weeks from 17.09.2020 i.e., on or before 01.10.2020 and in spite /5/ Com.O.S.No.231/2022 of having received the entire sale consideration in advance, the defendant failed and neglected to deliver the consignment to the plaintiff by the stipulated date.
08. That, eventually after much follow up, by the end of October 2020 the defendant delivered one consignment comprising of 416 cartons supposedly containing 150,000 masks.
09. That, to the plaintiff's shock, upon examining the contents of the 416 cartons received from the defendant, the plaintiff realised that there were only 99,840 masks and not 150,000 resulting in the defendant having short delivered by 50,160 masks. Promptly, by an email dated 01.11.2020 addressed to the defendant, the plaintiff reported the short-delivery to the defendant.
10. Thereafter, during the first week of November 2020, the defendant delivered another consignment of masks supposedly comprising of 50,000 piece. Even in this consignment, the plaintiff found 49,960 masks resulting in the defendant having short delivered by 40 masks.
/6/ Com.O.S.No.231/2022
11. That, in the midst of the deliver of the two consignment, by an email dated 01.11.2020 responding to the plaintiff's email dated 01.11.2020 regarding short delivery, the defendant acknowledged that it was aware of the short deliver and that it will look into it after receiving the second consignment, but prior to inspecting its contents. By an email dated 02.11.2020 addressed to the defendant the plaintiff stated that the defendant had short delivered and that it still had to supply 50,000 masks, though the actual number was 50,200 masks. By its email dated 02.11.2020 addressed to the plaintiff, the defendant admitted the same and promised to deliver the balance quantity within 8 to 10 days.
12. That, in addition to having over paid the defendant for the 50,200 masks, the defendant failed to deliver, the plaintiff also incurred a loss of USD 7500.00 towards payment of non-refundable import duty. That, believing the defendant's assertion that the first consignment contained 150,000 masks, the plaintiff paid the import duty applicable for 150,000 imported masks amounting to USD 22500.00. However, the defendant short /7/ Com.O.S.No.231/2022 delivered by 50,160 masks and the plaintiff overpaid the import duty amounting to USD 7524.00.
13. Thereafter the defendant kept raising excuses and made false promises to deliver the balance 50,200 masks to the plaintiff but failed and neglected to do so.
14. The defendant has admitted and acknowledged the short delivery of the masks vide emails dated 07.11.2020, 23.11.2020. 24.11.2020, 28.11.2020 and 07.12.2020.
15. Thereafter the plaintiff through its advocate's letter dated 12.01.2021 addressed to the defendant, the plaintiff placed some of the above facts on record and called upon the defendant to refund the portion of the sale consideration for which no masks were supplied to the plaintiff. That, inadvertantly, due to challenges in communication during the pandemic, there were some errors in the legal notice. That, in spite of receipt of the legal notice, the defendant has not responded or complied with the requisitions contained therein.
/8/ Com.O.S.No.231/2022
16. That, in these circumstances, the defendant induced the plaintiff to pay the entire sale consideration in advance and promised to deliver 200,000 masks. That, the defendant has admittedly short delivered by 50,200 masks. Hence, at the rate of USD 3.00 per mask, the defendant is bound and liable to refund USD 150,600. In addition, having wrongly required the plaintiff to pay import duty on goods that were missing in the consignment, the defendant is bound and liable to reiumburse USD 7524 to the plaintiff. That, in total, the defendant is bound and liable to pay the plaintiff USD 158,124.
17. Though there is no provision in the contract documents for payment of interest for delayed refund/penalty for short-delivery, the transaction is commercial in nature. Hence, the defendant ought to be directed to pay the suit amounts together with interest thereon at the rate of atleast 12% p.a. from the date of the suit until payment. By contending so, the plaintiff prays to allow the suit.
18. On the other hand, the defendant has filed written statement contending that at the outset, the suit is not /9/ Com.O.S.No.231/2022 maintainable either in law, or on facts, and the same is liable to be rejected in limine.
19. That, this defendant is only a middle person and an intermediary agent for purchase of masks by plaintiff from one Jubilee Inc and one Abhishek of Jubilee Inc was interacting with plaintiff and the role of this defendant was only to act as an intermediary and nothing more than that. That, there is no default of any kind whatsoever in the matter and as such the present suit is not maintainable against the defendant without impleading the said M/s.Jubilee Inc.,. The plaintiff's claim if any is only from the said M/s.Jubilee Inc and not from this defendant. That, presently, negotiations are going on in the matter to amicably resolve the matter. That, as this written statement is to be filed within time frame under the scheme of the Commercial Courts Act, this written statement is filed by this defendant. That, other aspects of the matter requires to be pleaded only after conclusion of settlement talks between the parties. That, this written statement may kindly be accepted for present and this defendant craves leave of this Court to place additional facts and aspects before this /10/ Com.O.S.No.231/2022 Court on conclusion of settlement talks between the parties herein. That, any averments and allegations would scuttle settlement talks between the parties. That, this predicament of this defendant may kindly be accepted and this defendant may kindly be permitted to place subsequent events on record in due course of time and this written statement may kindly be accepted for the present. By contending so, the defendant prays to dismiss the suit.
20. On the basis of the rival contentions, pleadings, material proposition of fact and law and the documents this Court has framed the following:
ISSUES
1. Whether the plaintiff proves that the defendant is liable to pay a sum of USD 150,600 (US Dollars One Hundred Fifty Thousand Six Hundred Only) towards refund of portion of the sale consideration along with interest @ 12% p.a. from the date of suit till payment?
2. Whether the plaintiff proves that the defendant is liable to pay a sum of USD 7524 (US Dollars Seven Thousand Five Hundred twenty Four Only) towards reimbursement of import duty paid by the plaintiff, /11/ Com.O.S.No.231/2022 together with interest @ 12% p.a. from the date of suit till the date of realization?
3. Whether the defendant proves that the suit filed by the plaintiff is bad for non-joinder of necessary party i.e, M/s.Jubilee Inc.,?
4. Whether the plaintiff is entitled for the reliefs as sought for?
5. What Order/decree?
21. To substantiate the case of the plaintiff, Sri.Sanjay Vijay Batheja, the Authorized representative of plaintiff company got examined as PW.1 and got marked the documents at Ex.P1 to Ex.P14. On the other hand the Director of the defendant has examined as DW.1. and got marked the documents at Ex.D1 to Ex.D.4.
22. Heard on both sides. Both parties have filed written arguments.
23. The counsel for plaintiff has filed relied upon by the following decision:.
Sl.No. Particulars Citation
01. Bachhaj Nahar Vs. Nilima (2008) 17 SCC 491 Mandal & Anr.,
02. M.N.Saji vs. RSA No.186 of 2022 K.R.Krishnakumar (Kerala HC) /12/ Com.O.S.No.231/2022
03. Union of India Vs. (2012) 8 SCC 148 Ibrahim Uddin & Anr.,
04. Roop Kumar Vs. Mohan (2003) 6 SCC 595 Thedani
05. Nanjappan Vs. (2015) 14 SCC 341 Ramaswamy & Anr.,
06. Tamil Nadu Electricity (1996) 4 SCC 551 Board & Anr., Vs. N.Raju Raddiar & Anr.,
07. Uttar Pradesh State (2009) 2 SCC 606 Electricity Board & Anr., Vs. Aziz Ahmad
08. Placido Francisco Pinto 2021 SCC OnLine (D) by LR's & Anr., Vs. SC 842 Jose Franciso
09. Forasol Vs. Oil & Natural 1984 (Supp) SCC Gas Commission 263
24. The counsel for defendant has filed relied upon by the following decision:.
Sl.No. Particulars Citation
01. Babu Ram Aggarwal & 2013 SCC OnLine
Anr., Krishan Kumar Del 324
Bhatnagar & Ors.,
02. Asma Lateef & Anr. Vs. 2024 INSC 36
Shabbir Ahmed & Ors.,
03. Sher Singh Vs. The 2025 DHC:4347-DB
Chairman, NDMC,
/13/
Com.O.S.No.231/2022
04. J.S.Yadav V. State of U.P (2011) 6 SCC 570
05. Ultra Merchandise & 2014 SCC OnLine
Retails Limited Vs. Bom 1127
Entertainment India Ltd.,
06. Moreshar Yadaorao 2022 SCC OnLine
Mahajan Vs. Vyankatesh SC 1307
Sitaram Bhedi(D),
07. Tower Vision India Pvt., MANU/DE/
Ltd., and Ors., Procall 4958/2012
Private Limited and Ors.,
08. Paruthikkattuparambil 2015 SCC OnLine Ayisha V. Permbra Abdul KER 19438 Nassar
09. M/s.New India Sugar 2010 SCC OnLine Mills Vs. State of Uttar All 5219 Pradesh and Others,
10. Raj Shipping Agencies Vs. 2001 (4) Mh.L.J.324 "BUNGA MAS TIGA" & Ors.,
11. Prakash Kumar Thaker MANU/WB/ V. The Jharkhand State 1465/2025 Co-operative Lac Marketing and Procurement Federation Limited,
12. Gujarat Agro Oil 1991 SCC OnLine Enterprises Ltd., Guj 77 Ahmedabad Vs. Arbind H.Pathak
13. Sudha Devi Vs. (1988) 3 SCC 366 M.P.Narayanan /14/ Com.O.S.No.231/2022
14. AFRECO Vs.Kerala State 2019 SCC OnLine Cashew Development Ker 647 Corporation Ltd.,
15. Iswar Bhai C. Patel V. (1999) 3 SCC 457 Harihar Behera
16. Gopal Krishnaji Ketkar 1968 SCC OnLine Vs. Mohammed Haji Latif SC 63
25. My answer to the above framed issues are as follows:
ISSUE No.1 : In the AFFIRMATIVE .
ISSUE No.2 : In the AFFIRMATIVE .
ISSUE No.3 : In the NEGATIVE .
ISSUE No.4 : In the AFFIRMATIVE .
ISSUE No.5 : As per final Order.
for the following
REASONS
26. ISSUE No.1, 2 and 4 : For the purpose of brevity and convenience I would like to answer above three issues in common.
27. It is pertinent here to mention that as I have already narrated the facts of the case in detail at the inception, I will not repeat the facts once gain at length, but I will confine myself to the material facts.
/15/ Com.O.S.No.231/2022
28. It is the specific case of the plaintiff herein that the plaintiff is Oman's largest worldwide distributor of pharmaceutical and healthcare products.
29. That, in September 2020, the plaintiff received an order for a large number of face masks. That, upon making inquiries the plaintiff approached one Mr.Jacob Nicholas, an agent and resource person of Sandhu Products Inc., California, United State of America and expressed its interest in procuring N95 masks on an urgent basis to supply the same to their customer.
30. That, the said agent introduced the defendant to the plaintiff. Pursuant to negotiation, the defendant agreed to sell and supply 2,00,000 N95 1860S model respirators/ masks to the plaintiff for a total consideration of USD 6,00,000.
31. That, in view of the plaintiff's urgent requirement, the plaintiff agreed to get the entire consignment delivered by air transport, which is the most expensive form of transport for cargo and also agreed to pay the entire sale consideration in advance to the defendant on the /16/ Com.O.S.No.231/2022 understanding that the defendant shall supply the entire consignment within 8 days from the date of purchase orders.
32. It is the further the case of the plaintiff herein that the defendant has agreed to deliver 200,000 masks on receiving entire amount and the plaintiff paid entire amount of USD 600,000/- along with airway charges. However, the defendant has short delivered by 50,200 masks. Hence the plaintiff is seeking before this court to direct the defendant to refund USD 150,600 along with interest @ 12% p.a. (at the rate of USD 3.00 per mask x 50,200 masks).
33. It is also the case of the plaintiff that the defendant is liable to pay a sum of USD 7524 along with interest @ 12% p.a. towards reimbursement of import duty paid by the plaintiff.
34. On the other hand the defendant has filed written statement denying the case of the plaintiff and taking a specific defense that there is no privity of contract and M/s.Jubilee Inc., is a necessary party, the plaintiff has got remedy against M/sJubille Inc., and Mr.Jacob Nicholas. It /17/ Com.O.S.No.231/2022 is relevant to note that the defendant has taken a specific contention that there is an element of settlement and that, presently, negotiations are going on to amicably resolve the matter. Hence, prays to dismiss the suit.
35. In order to prove the case of the plaintiff, the authorized representative of the plaintiff company has filed affidavit in lieu of his examination chief reiterating almost all the plaint averments. Apart from the PW1 has got produced the original copy of authorization letter which is marked at Ex. P1.
36. The clinching documents which have been produced by the plaintiff are Ex. P2, which is the email with copy of invoice dated 16.09.2020 sent by one of the representative of the defendant company on 17/9/2020 at 1:13 PM to one Ashesh K Shah of plaintiff company and Jacob Nicolas to process the payment and the send email has also been copied to the present plaintiff where in the defendant has requested to process the payment so that the defendant can initiate the necessary paperwork to process the order. The said email communication also contains /18/ Com.O.S.No.231/2022 information that goods will be sent and shifted by next week. The said Ex. P2 also contain another email on the same date which is sent by the plaintiff to Mr Jacob Nicolas and the defendant company where in the plaintiff has undertaken that as per the request made purchase order will be sent in the name of defendant itself.
37. The Ex.P2(a) is the proforma invoice dated 16.09.2020 which is annexed with the said email communication where in the defendant is the exporter and the plaintiff is the importer and as per the said invoice it appears the defendant agreed to deliver 200,000/- respiratory masks to the defendant within 8 days via Oman airport and the said proforma invoice contains information pertaining to the bank of the defendant and the total value of the goods was 600,000/- USD.
38. The Ex. P3 is the purchase order Placed by the plaintiff dated 17.09.2020 with the defendant through fax for 200,000 respiratory masks at unit price of 3 per USD and the total price is 600,000 U.S. dollars. The Ex. P4 and Ex.P 5 are the office copy of letter dated 21.09.2020 issued by the plaintiff to the Bank at Oman along with instructions /19/ Com.O.S.No.231/2022 regarding funds transmission to the defendant with report. On careful perusal of Ex.P 5 it is clear that the plaintiff herein has transferred amount of 600,000/- U.S. dollars to the defendant through the Canara bank where the defendant maintains an account. In the said Ex.P4 there is a clear mention that the plaintiff has made payment against supply of medical items. Vide Ex. P4 the plaintiff has requested the manager of Bank Nizwa at sultanate of Oman to make 100% advance payment to the defendant. As per the details forthcoming in the Ex. P4(a)/the fax number of plaintiff tallies with the purchase order fax number at Ex. P3. As per Ex. P5 and as per the direction of the plaintiff the bank Nizwa at Muscat has transferred the amount to Standard Chartered Bank at New York and there is an information that the amount which has been transferred is 600,000 USD. The name of the plaintiff is forthcoming and the name of defendant as beneficiary is also forthcoming and the bank details of the defendant is also forthcoming in the said document. As per the said document it is crystal clear that as per the purchase order placed by the plaintiff and the invoice raised by the defendant the plaintiff has sent 600,000 U.S. dollars to the defendant through the procedure as mandated by the /20/ Com.O.S.No.231/2022 international banks via Standard chartered New York Bank of America and subsequently it appears the defendant has received the said amount through its banker Canara Bank in Bengaluru.
39. The learned counsel appearing for the defendant has tried to make out a case that the amount has not been received by the defendant and that the plaintiff has sent the amount to some bank at United States of America and therefore it is the contention of the defendant that the defendant is not liable to make any payment to the plaintiff. On that point the learned counsel for the defendant has cross examined the PW1 at length. The PW1 has admitted that the receiver whose reference as per Ex. P5 is a bank in New York and not the defendant and that PW1 has not produced bank statement to substantiate that they have made payment to the defendant, based upon the said admissions the defendant counsel argued that plaintiff has not at all made any payment to the defendant. The said argument canvased by the defendant counsel holds no water for the simple reason that the Ex. P5 contains sufficient information that the amount which has been transferred from Muscat is sent to Indian bank and it is /21/ Com.O.S.No.231/2022 mandatorily through an international bank.
40. Further, the defendant also argued that PW1 himself has admitted that defendant is a trader in fabrics and garments and not in a pharmaceutical company, the said admission is also not fatal to the case of the plaintiff for the simple reason that masks can also be manufactured by a trader who is in fabrics and garments industry.
41. The PW1 further got produced the Ex.P6 which is the email sent by the defendant once again to the plaintiff on 29.10.2020 and the said email has been copied to Jacob Nicolas, Naresh who appears to be concerned with the defendant company. As per the said email the defendant has sent invoice, packaging list, AWB and bank letter through Courier and also submitted that balance 50,000 pcs shipment details will be informed shortly.
42. The Ex. P6 also contains a letter written by the same Naresh Kumar director of defendant company whose name is referred in Ex. P2 e-mail. The said Naresh has requested the Bank Nizwa at sultanate of Oman to release the documents to the plaintiff towards clearance of masks free of charge as they have received full payment against /22/ Com.O.S.No.231/2022 the enclosed invoice. The said letter dated 29.10.2020 is sufficient to conclude that the defendant has admitted and acknowledged the entire payment from the plaintiff and asked to handover the goods free of charge to the bank authority at Oman . The PW1 also produced airway bill which is annexed with Ex.P6 wherein it appears the name of the defendant is shown as shippers and the name of plaintiff is the consignee and as per the said airway bill 416 cartons of masks were sent to Muscat from Hong Kong airport. The next document is the packaging list connected with the airway bill. The said Ex. P6 also contains invoice for 150,000 masks at 3 U.S. dollar unit price totaling to 450,000 USD dollars. Even relying upon the said airway bill the learned counsel for the defendant has vehemently argued that some person from Hong Kong has exported goods to the plaintiff and it is nothing to do with the defendant. However as the said airway bill and Invoice is a part of Ex. P6 where in there is reference of Naresh is appearing in the said email, I am of the view that the argument canvased by the defendant holds no water.
43. The PW1 also produced Ex. P7 which is the copy of the email sent by Naresh for defendant to the plaintiff and /23/ Com.O.S.No.231/2022 the copy of the same is also forwarded to Jacob Nicolas. The Ex. P7 is sufficient to conclude that defendant has acknowledged that due to rescheduling of the flight the airway bill was delayed and that defendant undertook that he will be able to clear the things by tomorrow's consignment. To that email the plaintiff has replied stating that the plaintiff has received the consignment containing 416 cartons where in it is submitted that the plaintiff has paid the custom duty based upon defendants invoice of 150,000 numbers which amounts to USD 22,500 and that the plaintiff has to pay once again the custom duty for the balance quantities. The plaintiff called upon the defendant to make sure that the balance quantity of 50160 Nos of mask should be delivered as early as possible.
44. The Ex.P8 is another email dated 02.11.2020 sent by defendant i.e, from one Naresh stating that they are sending invoice and packaging list with attachment and there is a reference in the send email regarding an email sent by Jacob Nicolas to the plaintiff where in it is stated that the carton size coming is quite large and called upon the plaintiff to receive the same and to inform regarding the quantity. The Ex.P8 is sufficient to conclude that as per the /24/ Com.O.S.No.231/2022 purchase order of plaintiff, the defendant has sent goods partially and even Jacob Nicolas was aware of the said transaction.
45. The Ex.P9 is email correspondence exchanged between the plaintiff and defendant dated 01.11.2020 and 02.11.2020 where in also the defendant has clearly acknowledged that the balance quantity will be shipped within 8 to 10 days. The said admission is sufficient to conclude that the defendant has not sent the goods in its entirety. The next email is from Mohammed safiullah of the plaintiff to the defendant wherein it is mentioned that the total quantity they have ordered was 200,000 masks however they have received 99,860 plus 50,000 masks and admittedly 50,160 masks were deficit.
46. The Ex. P10 is the office copy of import declaration cum duty paid receipt dated 01.11.2020 wherein admittedly the plaintiff has paid OMR 8,662.500 as import duty but received only 416 cartons where in admittedly the defendant has not sent the agreed number of masks and there was deficit.
/25/ Com.O.S.No.231/2022
47. The Ex.P.11 is copy of email correspondence exchanged between the plaintiff and the defendant wherein the defendant apologized to the plaintiff for the inordinate delay regarding the short delivery of the masks. The said admission of defendant through email is sufficient to conclude that the defendant has short supplied the goods and he is liable to pay the value of the short supplied goods together with the payment which has been additionally paid by the plaintiff towards import duty.
48. The Ex.P12 is also the email communication dated 22nd and 23.12.2020 exchanged in between the plaintiff and defendant and as per the said communications it appears the defendant is liable to pay the plaintiff as per the prayer made in the plant.
49. The Ex.P13 is the office copy of legal notice dated 12.01.2021 where in the plaintiff has called upon the defendant to refund the advance amount being USD 150,000 and the excess nonrefundable import duty paid by the plaintiff being USD 7,500 being a total of USD 157,000 to the plaintiff within 7 days. The Ex.P14 is the certificate /26/ Com.O.S.No.231/2022 under section 65(b) of Evidence Act.
50. The counsel for the defendant without cross examining upon the documentary proof which has been produced by the plaintiff has simply tried to cross examine upon various facts which do not support the case of the defendant in any manner. The defendant counsel has confronted the copy of commercial company law pertaining to Oman and it is marked at Ex. D1. In my opinion the said document has got no bearing upon the merits of this case when the defendant has acknowledged vide emails that there is a short supply made by it to the plaintiff. The defendant counsel tried to take advantage of the admission of PW1 where in it is deposed that PW1 is not aware whether in the second consignment they received 50,000 masks and that PW1 has not personally counted the number of masks in the cartons. In my opinion when there is a clear admission and acknowledgment made by the defendant through the email then any kind of admission of PW1 is not at all fatal to the case of the plaintiff. The defendant counsel has confronted email dated 20.09.2020 with attachment wherein PW1 admits it that by way of that email Mr Ashesh K Shah has received the purchase order.
/27/ Com.O.S.No.231/2022 The said document is marked at Ex. D2. The PW1 also admits the website print out of 3M with details of N95 1860S masks and it is marked at Ex.D3.
51. The PW1 has produced documentary proof to support its case, even though there are some admission on the part of PW1 they do not take away the case of the plaintiff in considering the acknowledgment of the defendant through various emails.
52. The director of defendant company has filed affidavit in lieu of his examination in chief reiterating the written statement averments wherein the copy of board resolution has been marked Ex.D4.
53. The learned counsel for the plaintiff has Cross- examination DW.1. On being confronted with Ex. D2 the witness admits that the email ID namely finance @ 5m- fg.com, [email protected], operations @ 5 m-fg.com belongs to defendant company. The DW1 further admits that the email ID [email protected] belongs to one Naresh Kumar Rao the director of defendant company. The DW1 also admits that the Ex.P2 is the email sent by defendant /28/ Com.O.S.No.231/2022 company to the plaintiff and that Ex. P6 email has been sent by the defendant to the bank. DW1 also admits that one Naresh Kumar whose references is in the letter dated 29.10.2020 of Ex.P6 is the director of defendant company. DW1 also admits that he has not produced any material to substantiate that defendant is only a facilitator and not the actual supplier.
54. On careful perusal of the cross examination of DW1 and the admissions it is crystal clear that the defendant has admitted the entire case of the plaintiff in its entirety and the admission of DW1 are sufficient to draw an adverse inference that the defendant has pleaded false facts in their written statement and cross examined PW1 with out pleading only to defraud the plaintiff.
55. In the present case on hand when the plaintiff case is based upon the documents marked at Ex.P1 to Ex.P14 the cross examination done by the defendant counsel is of no relevance. During the course of cross examination of DW1 it is clearly admitted that DW1 is aware of all the email addresses which are marked by the /29/ Com.O.S.No.231/2022 plaintiff in his evidence. The DW1 categorically admits that defendant has not produced any evidence to prove that it was only facilitated and not the actual supplier in considering the documentary proof produced by the plaintiff and failure on the part of the defendant to prove that it has not received the money from the plaintiff regarding a commercial transaction of supply of face masks I'm of the view that the plaintiff has successfully proved that defendant is liable to pay a sum of 150,600 U.S. dollars towards refund of portion of the sale consideration along with interest at 12% per annum from the date of suit till payment. The plaintiff has also successfully proved that defendant is also liable to pay a sum of Rs 7524 U.S. dollars towards reimbursement of import duty paid by the plaintiff together with interest at 12 % .p.a. from the date of suit till the date of realization.
56. The learned counsel appearing for plaintiff relying upon the Decision of Hon'ble Apex court reported in 2008(17) SCC 491 and other decisions has vehemently argued that the purpose and object of pleadings and issues is to ensure that litigants come to court with all issues clearly defined and to prevent cases being expanded or /30/ Com.O.S.No.231/2022 grounds being shifted during trial. It is well settled proposition of law that no party should be permitted to travel beyond its pleading. Relying upon the well settled proposition of law it is contended that the defendant Ought to have restricted his cross examination and arguments to the written statement averments and issues framed by this court.
57. Keeping in mind the said arguments I have bestowed my attention once again to the cross examination of PW1 where in admittedly the defendant has put suggestions and cross examined PW1 on some of the points and facts which do not find a place in written statement.
58. It is well settled proposition of law that when once a contract is reduced to writing by operation of Section 91 of the Evidence Act it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under section 92 of the Indian Evidence Act where the written instrument appears to contain the whole terms of the contract then a parties to the contract are not entitled to lead any oral evidence to /31/ Com.O.S.No.231/2022 ascertain the terms of the contract. Hence, I am of the view that the cross examination of PW1 is not at all helpful to the case of the defendant.
59. Per contra, the learned counsel appearing for defendant also relied upon many decisions and argued that the emails cannot be proved under section 65 (b) of Indian Evidence Act without producing a party to the emails and also argued that there is no privity of contract in between the plaintiff and the defendant. In my opinion the decision relied upon by the defendant counsel reported in 2013 SCC online Delhi 324 is not at all applicable to the facts of this case as in this case the defendant has clearly admitted the email and the defendant has acknowledged in the said email stating its liability to pay. Hence the decisions which are relied upon by the defendant counsel is not at all helpful to the case of the defendant. In fact some of the decisions and the principle laid down in those decisions are helpful to the case of the plaintiff as in the decision 1968 SCC online 63 it is held that if a party who fails to produce the best evidence which is in his possession then adverse inference can be drawn against such a party. In the present case on hand the defendant ought to have produced /32/ Com.O.S.No.231/2022 documentary proof which show that the email sent to the plaintiff were not actually sent by the defendant. When the defendant has failed to prove the said fact in my opinion adverse inference can be drawn that all the communications with the plaintiff have been done by the defendant with regard to the purchase and selling of masks in question.
60. It is pertinent to note that at the time of framing of issues this Court had directed the plaintiff to calculate the amount mentioned in Dollars and to convert it into rupees at the time of evidence. The learned counsel appearing for the plaintiff during the course of arguments relying upon Forasol vs Oil and natural gas commission reported in 1984 (supp) SCC 263 argued that whenever entire business transaction has been carried out by the parties in dollars then the court can pass orders granting relief as prayed by the plaintiff in dollars itself. As per the said decision the plaintiff has got liberty to choose option of claiming foreign currency against the defendant and on careful reading of the said decision it is crystal clear that this court is bound to grant relief to the plaintiff in foreign currency itself.
/33/ Com.O.S.No.231/2022
61. On marshaling entire evidence on record and meticulous perusal of the documentary proofs, I am of the view that the plaintiff has made out a case that the defendant is liable to pay a sum of USD 150,600 towards refund of portion of sale consideration along with interest @ 12% p.a. and the defendant is also liable to pay a sum of USD 7524 towards reimbursement of import duty paid by the plaintiff with interest @ 12% p.a. from the date of suit till its realization. Accordingly, I answer issue No.1, 2 and 4 are in favour of plaintiff and in the AFFIRMATIVE.
62. Issue No.3: It is the specific case of the defendant that suit filed by the plaintiff is bad for non joinder of necessary party i.e, M/s Jubilee Inc. Hence, the suit is not maintainable.
63. Keeping in mind the defense raised by the defendant, it is essential for me now to discuss the exact proposition of law regarding evidentiary value of email to answer the issue in question. If the email has got evidentiary value which stands on higher footing then the defense of the defendant falls to the ground.
/34/ Com.O.S.No.231/2022
64. The Email communication is as good as written communication in establishing validity of a contract. This document establishes the point using the Indian Contract Act, 1872 (Sections 2(a), 2(b), and 3), a related Hon'ble Apex Court decision, and the Information Technology Act, 2000 (Sections 4 and 10A).
65. Whether email communication can be considered to be on equal footing with written communication in determining existence of contract between parties?
Position of Law The act of communication is integral to meeting two of the ingredients of a valid contract- first, to communicate an offer, and second, to communicate the acceptance. Section 2(a) of the Indian Contract Act (ICA), 1872 lays down what amounts to an offer. Section 2(a) says-
"(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;"
That is, "signifying" willingness is all that is required. Section 2(a) doesn't say that such /35/ Com.O.S.No.231/2022 signifying has to be in written form. Similar is the case with Section 2(b) of ICA, 1872 which lays down what amounts to an acceptance-
"(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;"
Here too all that it requires is "signifying"
assent. It does not require written communication only. Further Section 3 of ICA, 1872 lays down what amounts to communication of an offer or acceptance. Section 3 says "any act or omission... which intends to communicate... or has the effect of communicating" amounts to communication of an offer or acceptance. Therefore, a plain reading of Sections 2(a), 2(b) and 3 shows that email communications can be on equal footing as written communication in determining existence of a contract. The Hon'ble Supreme Court in Bhagawandas Kedia Case(1965 SCC ONLINE SC 38) further clarified the standard for communication. It is held that some external manifestation of the /36/ Com.O.S.No.231/2022 intention to accept is required to have an agreement and a mere state of mind is not enough. Further, such external manifestation can be through speech, writing or other act--
"6. The principal contention raised by the defendants raises a problem of some complexity which must be approached in the light of the relevant principles of the common law and statutory provisions contained in the Contract Act. A contract unlike a tort is not unilateral. If there be no meeting of minds no contract may result. There should therefore be an offer by one party, express or implied, and acceptance of that offer by the other in the same sense in which it was made by the other. But an agreement does not result from a mere state of mind: intent to accept an offer or even a mental resolve to accept an offer does not give rise to a contract. There must be intent to accept and some external manifestation of that intent by speech, writing or other act, and acceptance must be communicated to the offeror, unless he has waived such intimation, or the course of negotiations implies /37/ Com.O.S.No.231/2022 an agreement to the contrary. "
66. This observation of the Hon'ble Apex Court puts communication through speech, writing or other act on equal footing. Emails can easily be considered part of "other act". Hence writing and emails can be considered to be on equal footing. Alternatively, emails are on equal footing relying on the Information Technology Act, 2000.
67. The Information Technology Act, 2000, Section 4 and Section 10A indicate that email communications should be considered to be on equal footing as exchanging of written documents in matters of validity of contracts-
"4. Legal recognition of electronic records----- Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference."
"10A. Validity of contracts formed through /38/ Com.O.S.No.231/2022 electronic means.- Where in a contract formation, the communication of proposal, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic records, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose."
68. Therefore, validity of a contract cannot question only because email communication used instead of written communication.
69. In the present case on hand when there is a categorical admission on behalf of the defendant in his emails admitting his liability, I am of the view that the presence of Mr. Jacob Nicolas or M/s jubilee inc is not at required to adjudicate the dispute. Further, the defendant in his written statement has admitted that there are negotiations going on to amicably settle the dispute. This admission is sufficient to hold that even in the absence of any third party the dispute can be decided. Hence, I answer /39/ Com.O.S.No.231/2022 the above Issue No.3 in the NEGATIVE.
70. Issue No.4: In view of my discussions on the above Issues I am of the firm opinion that the plaintiff is entitled for the reliefs as claimed for. Hence I answer the Issue no. 4 in affirmative.
71. Issue No.5: In view of my findings on Issue No:1 to 4, I proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby decreed with cost.
The defendant is hereby directed to pay to the plaintiff a sum of USD 150,600 (US Dollars One Hundred Fifty Thousand Six Hundred only) together with interest @ 12% p.a. from the date of the suit till its realization towards refund of a portion of the sale consideration.
The defendant is further directed the defendant to pay the plaintiff a sum of USD 7524/- (US Dollars Seven Thousand Five Hundred Twenty Four only) together with /40/ Com.O.S.No.231/2022 interest @ 12% p.a. from the date of the suit till its realization towards reimbursement of import duty which was paid by the plaintiff.
Office is directed to return the lapsed Bank Guarantees which are in the safe custody to the defendant on proper verification and identification.
The pending IAs if any are disposed off accordingly.
The office is hereby directed to send a copy of the judgment to the plaintiff and the defendant through e-mail as per Order XX Rule 1 of CPC as amended by Section 16 of Commercial Courts Act, 2015.
(Directly dictated to the Stenographer on computer, corrected and then pronounced by me in the open court on this the 28th day of January 2026).
(K.M.RAJENDRA KUMAR) LXXXIX Addl.City Civil & Sessions Judge, Bengaluru (CCH-90) /41/ Com.O.S.No.231/2022 ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 SRI.SANJAY VIJAY BATHEJA List of documents exhibited on behalf of the plaintiff:
Sl.No. Particulars of documents Ex.P.
1. Original copy of letter of Ex.P.1 authorization
2. True copy of e-mail with invoice dated Ex.P.2 & 16.09.2020 Ex.P.2(a)
3. Purchase order dated 17.09.2020 Ex.P.3
4. Office copy of letter dated 21.09.2020 Ex.P.4 & issued by the plaintiff to the Bank at Ex.P.5 Oman along with instructions respective regarding funds transmission report ly
5. Office copy of defendant's e-mail Ex.P.6 dated 29.10.2020 along with a letter, air-way bill, packing list and invoice (Page No.20-24)
6. E-mail correspondence dated Ex.P.7 01.11.2020 addressed by me to the defendant (Page No.25-26)
7. Office copy of defendant's e-mail Ex.P.8 dated 02.11.2020 along with invoice, air-way bill, packing list (Page No.27-
30) /42/ Com.O.S.No.231/2022
8. E-mail correspondences exchanged Ex.P.9 between myself and defendant dated 01.11.2020 and 02.11.2020 (Page No.31-35)
9. Office copy of import declaration cum Ex.P.10 duty paid receipt dated 01.11.2020 (Page No.36-37)
10. Copy of e-mail correspondence Ex.P.11 exchanged between myself and defendant where in defendant admitted and acknowledged the short delivery of the masks as well as its obligation (Page No.38.44)
11. E-mail communications dated Ex.P.12 22.12.2020, 23.12.2020 and 03.01.
2021 exchanged between myself and defendant (Page No.45-54)
12. Office copy of legal notice dated Ex.P.13 12.01.2021 (Page No.55-59)
13. Certificate issued U/Sec. 65B of Ex.P.14 Indian Evidence Act List of witnesses examined for the defendant/s:
D.W.1 SRI.SRIKANT.T.S. List of documents marked for the defendant/s:
Sl.No. Particulars of documents Ex.D.
1. Authorization Letter Ex.D.1
2. Copy of Purchase Order by way of Ex.D.2 /43/ Com.O.S.No.231/2022 Email
3. The copy of website print out of 3M Ex.D.3
4. Copy of board resolution. Ex.D.4 (K.M.RAJENDRA KUMAR) LXXXIX Addl.City Civil & Sessions Judge, Bengaluru (CCH-90) ****