Bangalore District Court
Alluri Bharati Raju vs M/S Neoterra Farming Technologies Pvt ... on 25 November, 2024
KABC170017242022
IN THE COURT OF LXXXV ADDL. CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH-86) (Commercial Court)
THIS THE 25TH DAY OF NOVEMBER 2024
PRESENT:
SRI.ARJUN. S. MALLUR. B.A.L.LL.B.,
LXXXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.OS.No.914/2022
BETWEEN:
Mrs. Alluri Bharati Raju
W/o N.R. Alluri,
Aged about 49 years,
R/At Plot No.510, Road No.22,
Jubilee Hills, Shaikpet,
Hyderabad, Telangana 500033
Rep By Her Pa Holder Mr G Venkateshwara Rao
: PLAINTIFF
(Represented by Sri. Siddartha B Muchandi, Advocate)
AND
M/S Neoterra Farming Technologies Pvt Ltd
Having its registered Office At Sy No.39,
Com.OS.No.914/2022
Bellahalli Main Road, Kannuru Village,
Yelahanka (North) Bangalore - 560064
Rep By Its Director Mr. Chetan
Also At No.1110, Anagha Peridot,
Coffee Board Layout,
Hebbal, Kempapura,
Bangalore - 560024
: DEFENDANT
(Represented by Sri. Sudheer K. Advocate)
Date of Institution of the suit 27-06-2022
Nature of the suit (suit on
pronote, suit for declaration &
Possession, Suit for injunction Suit for recovery of money
etc.)
Date of commencement of 23-01-2023
recording of evidence
Date on which judgment was 25-11-2024
pronounced
Total Duration Year/s Month/s Day/s
02 04 29
(ARJUN. S. MALLUR)
LXXXV Addl.City Civil & Sessions Judge,
Bengaluru.
2
Com.OS.No.914/2022
JUDGMENT
Suit for recovery of a sum of Rs.1,89,28,000/- (Rupees One Crore Eighty Nine Lakhs Twenty-eight thousand only) with interest at 24% per annum from the date of suit till realization.
2. The case of the plaintiffs in brief is as under:-
The plaintiff had entered into a memorandum of understanding (MOU) on 18.06.2020 with the defendant company which is into the business of building infrastructure for green house and also sourcing and marketing of the vegetables and greens under the band "Nowa Fresh". Under the said MOU dated 18.06.2020 the plaintiff initially agreed to pay a sum of Rs.5,32,000/- towards procurement of 38nos of retail Hydroponic Stands at the rate of Rs.14,000/- per stand. Thereafter the plaintiff under various cheques has paid a total amount of Rs.1,11,00,000/- which is given in a tabular column as under:
Sl.No Date Cheque Bank Details Amount in . No. Rs.
1 28.10.2019 000915 ICICI Bank, Banjara Hills Branch 10,00,000/- 2 05.11.2019 000885 ICICI Bank, Banjara Hills Branch 30,00,000/-3
Com.OS.No.914/2022 3 02.12.2019 000886 ICICI Bank, Banjara Hills Branch 25,00,000/- 4 21.01.2020 000527 Kotak Mahindra Bank, Jubilee Hills 10,00,000/-
Branch 5 06.02.2020 000887 ICICI Bank, Banjara Hills Branch 10,00,000/- 6 19.02.2020 000528 Kotak Mahindra Bank, Jubilee Hills 8,00,000/-
Branch 7 06.03.2020 000918 ICICI Bank, Banjara Hills Branch 10,00,000/- 8 12.05.2020 000529 Kotak Mahindra Bank, Jubilee Hills 8,00,000/-
Branch 1,11,00,000/-
Total Its further submitted that much against the assurances and the representations made by the defendant the plaintiff observed there were several lacunaes in the healthy situation for plants. It was observed that the weed mat was required to be laid on the NFT green house floor to avoid weeds, a proper drainage system was to be provided to evacuate rain water from the top of the green house either allowing drain out of the farm or collect them in a pit which can be eventually used for irrigation purpose. Planting was required to be done in coco peat green house and utilization of the facility for growing the crops. It is submitted that the defendant failed to rectify the lacunae in spite of repeated demands. The defendant having violated the terms of the agreement the plaintiff on 04.06.2021 issued a termination cum demand notice terminating the agreement and demanding the defendant 4 Com.OS.No.914/2022 to pay a sum of Rs.1,11,00,000/- with damages of Rs.25,00,000/- with interest at 24% p.a. from June 2020 till the date of suit. The said notice was avoided by the defendant and the plaintiff also sent a message on whatsapp to which the defendant on 02.07.2021 replied that its legal team will look into it. It is submitted that as on the date of suit together with interest at 24% p.a. from June 2020 till the filing of the suit and along with damages of Rs.25,00,000/- the defendant is due in paying the suit claim. The plaintiff also instituted pre institution mediation in PIM No.1521/2021 in which the defendant did not participate and the PIM proceedings were closed with the non-starter report. Hence the suit.
3. On service of summons the defendant appeared and filed the written statement contending that under the MOU dated 18.06.2020 the plaintiff had agreed to pay a sum of Rs.5,32,000/- but has not paid any amount to the defendant and therefore the MOU dated 18.06.2020 cannot be considered at all. It is submitted that the plaintiff is clubbing two separate transactions and is trying to make an unlawful gain at the expense of the defendant. The defendant further submits that the amounts that has been mentioned in the plaint is not 5 Com.OS.No.914/2022 under the said MOU but it was towards the works done by the defendant in the farm land belonging to the plaintiff,. It is submitted that the plaintiff wanted her farm land situated at Manchenalli Yelahanka Bengaluru to be develop into a hydroponic farm. The payments that have been made by the plaintiff are towards allied activities for the development of the farm land. The defendant has successfully completed the required work within the stipulated time and handed over it to the plaintiff and that the activities carried out in the farm land of the plaintiff had nothing to do with selling or marketing of the products under the brand name "Nowa Fresh". The activities carried on in the land of the plaintiff measuring 2 acres was installation of grow bags with drip irrigation for polyhouse, planting and commissioning of Phase1 for 1 acre and installation of auto fertigation unit. It is submitted that the development of the 2 acres of plant belonging to the plaintiff was completed successfully. It is also submitted that there was no work pending or due to be completed on part of the defendant and the alleged lacunaes as mentioned in the plaint are false and baseless. It is submitted that the defendant has also produced the photographs regarding the works carried out 6 Com.OS.No.914/2022 as per the requirement of the plaintiff. The defendant further submits that with respect to the suit claim there is no privity of contract with the plaintiff and the payments mentioned in the plaint has nothing to do with the MOU entered into with the defendant. The defendant has denied all other plaint averments and sough for dismissal of the suit with exemplary cost.
4. On the basis of the above pleadings this Court has framed the following issues:
ISSUES
1. Whether the plaintiff proves that defendant has violated the terms of the Memorandum of Understating dated 18.06.2020 while building Green House for plaintiff and thereby liable to return the amount of Rs.1,11,00,000/- paid by plaintiff along with interest @ 24% per annum from June 2020 spent by plaintiff towards said Green House along with damages of Rs.25,00,000/-?
2. Whether the defendant proves that there is no privity of contract between defendant and plaintiff towards the suit claim?7
Com.OS.No.914/2022
3. What order or decree?
5. The GPA Holder of the plaintiff filed his affidavit evidence as P.W.1 and got marked documents at Ex.P-1 to Ex.P-15. Among them Ex.P.11 to P.15 have been marked through the cross examination of D.W.1. The plaintiff has also examined one witness Mr. Nagana Gouda Malkaji as P.W.2 and through him has got marked his report and the photographs along with C.D and the certificate Under Sec.63(4)(c) of BSA,2023 as Ex.P.16 to P.18. The Director of defendant examined himself as D.W.1. No documents have been marked in evidence by the defendant.
6. Learned Counsel for the plaintiff has submitted written arguments along with citations. Heard the learned counsel appearing for the defendant who has also filed the citations. Perused the entire material on record.
7. My answer to the above issues are as under :-
Issue No.1 : In the Negative Issue No.2 : In the Affirmative Issue No.3 : As per final order for the following.8
Com.OS.No.914/2022 REASONS
8. ISSUE NO.1:- The plaintiff is seeking for refund of the amount of Rs.1,11,00,000/- and payment of as sum of Rs.25,00,000/- as damages on account of not rectifying the lacunae found in the green house constructed by the defendant on the farm land under the MOU dated 18.06.2020. It is pertinent to mention here that the MOU dated 18.06.2020 was with respect to purchase of 38nos of retail hydroponic stands at the cost of Rs.14,000/- per stand and the defendant having paid Rs.5,32,000/-. There is no pleadings in the plaint regarding the amount of Rs.1,11,00,000/- being paid towards setting up of the green house and running a poly house in the farm land of the plaintiff by the defendant.
9. The suit is filed through the power of attorney holder of the plaintiff who has also lead evidence and got marked several documents. The Learned Counsel for the defendant in the course of his arguments initially challenged the case of the plaintiff on the ground that the power of attorney holder had no right to institute the suit and had no authority to adduce evidence and therefore 9 Com.OS.No.914/2022 the evidence of P.W.1 cannot be taken into consideration. He further vehemently argued that the Power of Attorney which is produced at Ex.P.9 is not duly notarized and therefore it cannot be relied upon and in such circumstances the very evidence of the plaintiff through her Power of Attorney holder cannot be taken into consideration. Replying to the said argument the plaintiff in his written argument has submitted that there is no mandatory requirement that the power of attorney must be notarized and even a power of attorney which is not notarized can be acted upon and based on that evidence can be adduced by the Power of Attorney Holder.
10. The Learned Counsel for the defendant in support of his arguments has relied upon the judgment of Hon'ble Delhi High Court reported in AIR 1984 DELHI 363, Electric Construction & Equipment vs. Jagjit Electric Works. The Hon'ble Delhi High Court while referring to Sec.85 of the Contract Act has observed as under:
(11) It is useful to note that Section 85 raises a presumption about the execution of a Power of attorney provided two conditions are satisfied.
Firstly, it must be executed before a Notary Public and secondly, it must be authenticated by a 10 Com.OS.No.914/2022 Notary Public.
(15) THE. next question is, can this power of attorney be proved in any other way?. And the answer is that even if a power of attorney is not executed before a Notary Public and is not authenticated by a Notary Public, it can still be proved by establishing due execution by producing the necessary witnessed as well as the resolution of the Board of Directors of the - company concerning the same.
In response the Learned Counsel for the plaintiff in support of his written argument has relied upon the judgment of Hon'ble Delhi High Court reported in 2002 SCC Online Del 3 Grafitek International vs. K.K.Kaura and Others wherein it has been observed has under:
9. Merely because the power of attorney is not duly notarised does not mean that the concerned person was not authorised to institute the suit.
Notarization rises presumption as to its authentication and no more. Notarisation of power of attorney is a matter of procedure and raises the presumption of authority of the person to institute the suit. In other words it does not mean that power of attorney executed in favor of a particular person but not duly notarised does not confer power upon the person to institute the suit.
10. The importance of power of attorney without 11 Com.OS.No.914/2022 notarisation cannot be undermined but at the same time if such a defect is removed subsequently during the pendency of the suit and that too is followed by ratification of the authority of a person who has been authorized to institute the suit, it is not such a fatal infirmity that would hit at the maintainability of the suit itself.
He also relied upon the judgment of our Hon'ble High Court reported in 2016 SCC Online Kar 8793 Amit Roy vs. Jyothendra Sinhji Vikramsinhji wherein at para 20 and 21 it has been observed as under:
Para 20: Such being the scheme of Chapter X of the said Act, there is nothing to indicate that the power of attorney document has to be compulsorily notarized or registered. If the power of attorney documents were to contain the clause enabling the agent to sell the principal's property, it is then that it becomes a compulsorily registerable document.
Para 21: As observed by the Apex Court in the case of Tmt. Kasturi(supra), the grant of power of attorney is essentially governed by Chapter X of Contract Act. A power of attorney holder or t he agent derives the right to use the principal's name and perform certain acts, deeds and things on behalf of the principal, subject of course, to the limitations contained in the said deed; the same shall be treated as it they are done by the principal. A power of attorney is a document of convenience. If the power of attorney is notarized, the presumption is raised in favour of 12 Com.OS.No.914/2022 its execution. But it cannot be contended with any rate of success that if the power of attorney document is not notarized, it is not executed at all.
11. The observations made by the Hon'ble Delhi High Court and our Hon'ble High Court in the above cited decisions makes it clear that the power of attorney need not be compulsorily notarized to be admitted in evidence. It has been observed that even a power of attorney which is not notarized can also be relied upon to give evidence. It has been observed that notarization of power of attorney would only give the benefit of drawing presumption with regard to execution of the document. In the absence of notarization power of attorney can still be proved to through other means by examining the witnesses concerned.
12. In the case on hand through the evidence of P.W.1 the original GPA has been marked as Ex.P.9. On perusal of the same P.W.1 has been authorized by the plaintiff to institute suits, give evidence, sign the pleadings etc. Though the power of attorney is not notarized still it has been signed before two witnesses and also identified by a advocate. No where in the written statement it has been 13 Com.OS.No.914/2022 averred that the power of attorney is not duly executed. Further even in the cross examination of P.W.1 except suggesting that the plaintiff herself could have deposed nothing has brought out to infer that the power of attorney produced at Ex.P.9 is false and bogus and cannot be relied upon.
13. With regard to the claim made in the suit the plaintiff has examined her power of attorney holder as P.W.1 who has reiterated the averments made in the plaint. He has got marked documents at Ex.P.1 to P.18. Ex.P.1 is the MOU dated 18.06.2020. Ex.P. 2 and P.3 are the bank statements of ICICI Bank and Kotak Mahindra Bank which evidences payment of the amounts to the tune of Rs.1,11,00,000/- as mentioned in the plaint. Ex.P.4 is the termination notice dated 04.06.2021. Ex.P.4a is the postal receipt. Ex.P.5 is the undelivered postal cover. Ex.P.5a is the postal acknowledgment. Ex.P.5b is the notice that has been kept in the postal cover which was opened in the course of evidence before the Court. Ex.P.6 is the electronic document for having sent the termination notice through whatsapp number of the defendant. Ex.P.7 is the email issued by the plaintiff informing the defendant about termination of the MOU. Ex.P.8 is the 14 Com.OS.No.914/2022 non starter report in the PIM proceedings. Ex.P. 9 is the GPA executed in favour of P.W.1. Ex.P. 10is the certificate under Sec.65B of the Indian Evidence Act with respect to the whatsapp and emails produced at Ex.P.6 and P.7.
14. Ex.P.11 to P.15 have been marked through cross examination of D.W.1 where in he has admitted the online master data extract of the defendant company, logo of the defendant company, the photographs pertaining to establishment of the green house, the email dated 17.03.2019 and certain other photographs regarding plants grown in hydroponic stands. The plaintiff availed services of an expert by name Mr. Nagana Gouda Malkaji, who is a M.Sc. in Agronomy a co-founder of Eco Agripreneurs Pvt. Ltd., having more than 15 years of expertise in the Agriculture Sector. P.W.2 has been appointed as an expert unilaterally by the plaintiff to visit the green house constructed in her farm land and submit a report regarding the factual situation. P.W.2 has filed his affidavit by way evidence having conducted the farm site at Manchenahalli Yelahanka Bengaluru along with his team on 09.06.2023 between 11 am to 1pm and on examining the site has set out the following reasons for failure of the crops grown in the green house set up in the 15 Com.OS.No.914/2022 site. Those reasons are mentioned in para 5 to 12 of the affidavit evidence which are as under:
V. I state that in the designed greenhouse, the fan and pad system was not built. Therefore, there was no regulation of temperature, humidity and air circulation and such unfavorable environment has affected the sensitive crops adversely and ultimately resulted in crop failure / reduced yield levels.
VI. I state that there was no fogging system in the greenhouse and absence of fogging system in the greenhouse created a lot of abiotic stress for the Crop in the greenhouse especially during high temperature period/ summer season. This can be considered as a reason for poor crop yields.
VII. I state that the weed mat conserves soil moisture within the greenhouse, by acting as a barrier between the soil and the air reducing evaporation, particularly in arid or dry climates. This moisture conservation is crucial for maintaining optimal growing conditions for plants, as it ensures that the soil retains sufficient moisture levels necessary for plant growth and prevents excessive drying out.16
Com.OS.No.914/2022 VIII. I state that though weed mats were laid in the greenhouse, their quality is questionable. I found a lot weeds emerging through weed mats. Weeds competition for light, water, nutrients would have contributed for reduced yield, higher pests and disease incidence.
IX. I state that there were no water softeners in place. Found salts accumulation on the irrigation system / drip irrigation system. There was also a white encrustation formed on the growing media. It clearly indicates that, water used for irrigation contained more salts. Higher salt concentration in the growing media definitely limits the yield potential of the crops grown.
X. I state that there was no sidewall built and the stability for the greenhouse structure is questionable. Rainwater had entered inside the greenhouse and stagnated in several patches. There were several indicators like decomposing weed mats in the areas where there was water stagnation. By all probability, water stagnation inside the green house must have killed some plants by root rot. Water stagnation must have created conditions favourable for several diseases' development. Both biotic stress (disease development) 17 Com.OS.No.914/2022 and abiotic stress (high moisture) could have played a key role crop failure.
XI. I state that the grow bags were filled with lesser growing media. Lesser quantity of growing media contributed to the poor root growth, anchorage, water retention, nutrients retention of nutrients and yield.
XII. I state that I did not find moisture meters, thermometers and humidity measurement instruments. The records of crop management practices were not available at site. Hence, it is difficult to comment on the crop management.
15. Through his evidences the plaintiff has got marked the report at Ex.P.16. The printout of the photographs which have been taken at the site, CD with respect to those photographs with the certificate under Sec.63(4)(c) of BSA, 2023. Against the evidence of the plaintiff and its witness the Director of the defendant has filed affidavit evidence as D.W.1 reiterating the averments made in the written statement. He has got marked no documents on his behalf.
16. With this evidence in the background it is now required to see whether the plaintiff has proved her case 18 Com.OS.No.914/2022 for refund of amount of Rs. 1,11,00,000/- paid towards setting up of the green house in her 2 acres of farm land at Manchenahalli Yelahanka Bengaluru together with damages and interest totally the suit claim. As averred in the written statement the defendant does not specifically deny and dispute payment of money to him by the plaintiff. On the other hand it is the defendant of the defendant that the services of the defendant was engaged for supplying hydroponic stands in the farm land of the plaintiff and as per the requirements of the plaintiff the hydroponic stands were delivered to the green house and the crops have been grown in the hydroponic stands. The photographs containing those crops have been marked in evidence through P.W.1 as Ex.P.15 which discloses hydroponic stands being supplied. The photographs at Ex.P.15 is only with respect to how the hydroponic stands look and with regard to the crops grown in the hydroponic stands no evidence has been laid before the Court.
17. The entire claim of the plaintiff is based on the MOU dated 18.06.2020. It has been produced and marked as Ex.P.1 which is not in dispute. On a careful and thread bare reading of the entire recitals of the MOU dated 18.06.2020 there is only an agreement to supply 38nos of 19 Com.OS.No.914/2022 retail hydroponic stands at the rate of Rs.14,000/- per stand for which the plaintiff has agreed to pay a consideration of Rs.5,32,000/-. No where under the said agreement there is any stipulation that the amounts as described in the plaint to the tune of Rs.1,11,00,000/- is to be paid by the plaintiff. The last payment that is made by the plaintiff as pleaded in para 6 of the plaintiff and also as seen from the accounts statements produced at Ex.P.2 and P.3 is dated 12.05.2020 for Rs.8,00,000/-. The agreement is dated 18.06.2020 which is subsequent to the last payment and if at all those payments were made by the plaintiff for installation of the green house in the two acres of land at Manchenahalli Yelahanka Bengaluru belonging to the plaintiff there was no impediment for the plaintiff to recite those terms specifically under the MOU.
On the other hand the MOU only confines to supply of 38 Nos of retail hydroponic stands by the defendant to the plaintiff. As the defendants admit receipt of the payments from the plaintiffs as pleaded in para 6 of the plaint inference can be drawn that the amount of Rs.5,32,000/- is covered within those payments with regard to supply of hydroponics stands. There is absolutely no mention the agreement that the defendant is required to set up a 20 Com.OS.No.914/2022 green house and also grow the crops of the plaintiff. Therefore the very base document for the suit which does not carry the required recitals renders the very case of the plaintiff doubtful and unbelievable.
18. It is the specific case of the plaintiff that the amounts paid to the defendant was towards establishing the green house in the 2 acres of land at Manchenahalli Yelahanka Bengaluru. The payment of amounts to the defendant has been necessitated pursuant to the MOU dated 18.06.2020. It is also the case of plaintiff that as certain lapses were noticed at the defendant failed to cure the defects or lapses in spite of the repeated demands the MOU dated 18.06.2020 at Ex.P.1 has been terminated and a demand notice is issued calling upon the defendant to repay the amount of Rs.1,11,00,000/- together with interest and damages of Rs.25,00,000/- amounting to the suit claim. Therefore the entire claim of the plaintiff is completely based on Ex.P.1.
19. The Leaned Counsel for the defendant during the arguments vehemently submitted that Ex.P.1 is totally silent with regard to setting up of green house, maintaining the same and also growing crops in the green 21 Com.OS.No.914/2022 house. He contends that the MOU dated 18.06.2020 was only with respect to supply of 38 Nos. of retail hydroponic stands and no where the MOU contemplated construction of the green house, poly house and growing crops and maintaining the green house by the defendant.
20. Through the evidence of the power of attorney holder the MOU dated 18.06.2020 is marked as Ex.P.1 and as already mentioned above the recitals of MOU apart from requiring the defendant to procure 38 Nos. of retail hydroponic stand to the plaintiff it no where contemplates about the defendant requiring to set up a green house, poly house maintain the same and grow crops in that. Even the plaint averments are totally silent regarding the requirements of the defendant to construct and maintain a green house, poly house for the plaintiff. No doubt the defendant in his written statement contends that the payments made by the plaintiff was with respect to the work required to be under taken and further contends that the required work is already under taken to the satisfaction of the plaintiff he does not elaborate on what was the work that were required and what was the cost of each work with respect to which when the payments were made. Nevertheless it is the plaintiff who has knocked on 22 Com.OS.No.914/2022 the doors of the Court and it is for the plaintiff to substantiate with cogent and clear pleadings regarding what all the works that were entrusted to the defendant and in respect of what work the payment was made. The plaintiff cannot bank upon the lapses of the defendant to prove its case. Even the payment schedule described in para 6 of the plaint does not say for what purposes each of the amounts have been paid to the defendant. It was the bound and duty of the plaintiff to specifically plead in cogent and clear terms purpose for which the payments are being made. Without the same the contention of the plaintiff that the sum of Rs.1,11,00,000/- towards building of the green house, poly house under the MOU dated 18.06.2020 cannot be sustained. In the absence of cogent and clear pleadings any amount of evidence will be of no relevance. Moreover as already mentioned above the MOU is totally silent with regard to construction of green house maintaining it except with respect to providing 38 Nos. of hydroponic stands.
21. The plaintiff to substantiate its case has also examined one witness P.W.2 who is said to be an expert in the field of agriculture. P.W.2 is an expert who is appointed by the plaintiff on her own and it is not with the 23 Com.OS.No.914/2022 consent of the defendant. Neither P.W.2 is appointed by the Court with regard to do an on-site assessment of the alleged losses incurred by the plaintiff. Though P.W.2 in his evidence has given a chronological factors leading to crop loss or reduction in the yield of the crops his evidence is of no relevance as there was no privity of contract between the plaintiff and defendant requiring the defendant to construct the green house, poly house, grow crops and maintain the crops.
22. Further P.W.2 in his cross examination deposes that at the time of his inspection the land was found to be abandoned and according to him about few months prior to cite inspection the land was abandoned. He further deposes that he has no knowledge about who was required to construct the green house, poly house and his evidence does not in any manner throw light regarding the defendant not maintaining the green house. In para 2 of his cross examination P.W.2 categorically deposes that he has no knowledge about what was the work done by the defendant and also he has no knowledge regarding how long the defendant was required to maintain the crops. Therefore the evidence of P.W.2 and his report at Ex.P.16 does not in any manner substantiate the plaintiffs 24 Com.OS.No.914/2022 claim for refund of the amount of Rs.1,11,00,000/- with interest and damages.
23. Upon considering the evidence on record and the documentary evidence as there was no requirement on part of the defendant to contract a green house and run a poly house in the MOU dated 18.06.2020 and as the pleadings does not contain all the required particulars and also the agreement at Ex.P.1 the MOU dated 18.06.2020 lacking in all the aspects with respect to construction of a green house, poly house and maintaining it by the defendant, the claim of the plaintiff for refund of amount of Rs.1,11,00,000/- together with interest and damages of Rs.25,00,000/- is to be held as totally unsubstantiated with cogent and satisfactory evidence. Accordingly, I answer Issue No.1 in the Negative.
24. ISSUE NO.2:- The defendant in the written statement has taken a plead that with respect to the suit claim there is no privity of contract between the plaintiff and the defendant. The said contention is justified given the facts and circumstances prevailing in the case. The entire case of the plaintiff is on the MOU dated 18.06.2020. For the sake of petition it is necessary to 25 Com.OS.No.914/2022 mention that under Ex.P.1 there was only requirement on part of defendant to procure 38 Nos. of hydroponic stands for a total cost of Rs.5,32,000/- payable by the plaintiff. The plaint pleadings is totally silent whether the hydroponic stands were supplied by the defendant or not. Moreover MOU at Ex.P.1 does not whisper a single word regarding the defendant required to construct, build and maintain green house, poly house under 2acres of land of the plaintiff in Manchenahalli Yelahanka Bengaluru. As already observed earlier the last payment is made in the month of May 2020 when the MOU is on 18.06.2020 and therefore the MOU ought to have contained the details for the works required to be done by the defendant to which already the payments were made by the plaintiff. But the MOU Ex.P.1 is totally silent in all these aspects which leads to the only inference that there was no privity of contract between plaintiff and defendant requiring the defendant to construct and build a green house, poly house and maintain the same as per the requirements of the plaintiff. Hence I answer Issue No.2 in the Affirmative.
25. ISSUE NO.3:- For the aforesaid reasons, in view of 26 Com.OS.No.914/2022 findings recorded on the above issues, I proceed to pass the following.
ORDER Suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
[Dictated to the Stenographer Grade-III, transcribed by her, corrected and signed by me then pronounced in the Open Court, dated this the 25th day of November 2024] ARJUN Digitally signed by ARJUN SRINATH MALLUR SRINATH Date: 2024.11.25 MALLUR 18:06:20 +0530 (ARJUN. S. MALLUR) LXXXV Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW-1 Venkateshwara Rao PW-2 Mr. Nagana Gouda Malkaji
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF 27 Com.OS.No.914/2022 Ex.P.1 MOU dated 18.06.2020.
Ex.P.2 Bank statement of ICICI Bank.
Ex.P.3 Bank statement of Kotak Mahindra Bank.
Ex.P.4 Termination notice dated 04.06.2021.
Ex.P.4a Postal receipt.
Ex.P.5 Returned sealed speed post.
Ex.P.5a Postal acknowledgment.
Ex.P.5b Sealed cover opened before the court and
notice in it.
Ex.P.6 E-Document for having send the said
termination notice through watsapp
number of defendant. (2 pages in all).
Ex.P.7 E-mail communication for informing termination through e-mail on 02.07.2021.
Ex.P.8 Non starter report.
Ex.P.9 Original GPA executed by plaintiff in my
favour to prosecute this matter.
Ex.P.10 Certificate u/S 65B of Indian Evidence Act
with regard to watsapp and emails.
Ex.P.11 Online Master Data extract
Ex.P.12 Logo of defendant company so also format
Ex.P.13 Photograph.
Ex.P.14 Email dated 17.03.2019
Ex.P.15 Photograph.
Ex.P.16 Report of the expert dated 22.07.2023.
Ex.P.17 Print out of the photographs of the site.
(subject to objection)
Ex.P.17a CD with respect to the photos produced at Ex.P.17.
Ex.P.18 Certificate u/S 63(4) of BSA, 2023.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE 28 Com.OS.No.914/2022 DEFENDANT D.W.1 Mr. Chetan K C LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT (ARJUN. S. MALLUR) LXXXV Addl.City Civil & Sessions Judge, Bengaluru.
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