Delhi District Court
Sangeet Shirodkar vs One97 Communication Ltd Page 1/13 on 27 August, 2022
DLSE010071852016
Presented on : 28-09-2016
Registered on : 29-09-2016
Decided on : 27-08-2022
Duration : 5 years, 10 months, 29 days
Date of Filing : 28.09.2016
Date of Institution : 29.09.2016
Date reserved for judgment : 18.08.2022
Date of announcement of judgment : 27.08.2022
Decision : Dismissed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH
EAST, DISTRICT COURTS, SAKET, NEW DELHI
CS DJ/211711/2016
1. SANGEET SHIRODKAR
Proprietor
M/s Off Spin Sports & Entertainment
Office at: 12/A, Sarat Bose Road,
First Floor, Kolkata - 700020
(West Bengal),
2. M/s Off Spin Sports & Entertainment
Through its Director,
Sh.Sangeet Shirodkar,
Office at: 12/A, Sarat Bose Road,
First Floor, Kolkata - 700020
(West Bengal) .... Plaintiffs.
CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 1/13
VERSUS
ONE97 COMMUNICATION LTD
Through its Director/ Principal Officer,
First Floor, Devika Tower,
NEHRU PLACE, NEW DELHI .... Defendant.
J U D G M E N T:
SUIT FOR RECOVERY OF RS.34,16,858/
1. The two plaintiffs, plaintiff no.1 a proprietor, and the plaintiff no.2, a company have filed the present suit for recovery of Rs.34,16,858/ on the ground of having provided the celebrities from sports/ cricket world for the voice chats with the subscribers of Reliance and Vodafone through defendant company.
2. The case of the plaintiffs is that plaintiff no.1 is the proprietor and he is also the Director of plaintiff no.2 company and they are in the business of sports and celebrities management. The defendant company is a service provider engaged in the business of communication and network infrastructure by delivering mobile content and consumer services to the consumers of telecom operators like Vodafone and Reliance etc. and cover more than 97% telecom service base in India. The products of defendant, among others, are providing the voice chats on the cellular networks of Reliance and Vodafone. Since 2011 World cup was happening, the plaintiff procured the services for its cricketers in order to engage voice chats with the subscribers of Reliance and CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 2/13 Vodafone. The plaintiff no.1 and the defendant company entered into an MOU in 20112012 for availing the services of Sports Celebrities affiliated with the plaintiffs such as Harbhajan Singh, Madan Lal, Manoj Prabhakar etc., for endorsing and promoting the products /services of the defendant. As per agreement, the plaintiff no.1 provided the celebrities/ cricketers for the "celebrity chat" program wherein the celebrity cricketers were made available for voice/ audio chat with the customers of defendant and its partners.
Plaintiffs further stated that there was sagreement to make the advance payment to the plaintiffs prior the chat but the defendant did not make payment of the same and therefore, plaintiff no.1 was forced to make payment from his own pocket. Revenue sharing/commericals were finalized between the plaintiffs and the defendant vide email dated 12.02.2011 and final live chat agreement dated 21.04.2011 was finalized between the plaintiffs and the defendants but copy of the said agreement duly signed by the plaintiffs and the defendants were never handed over to the plaintiffs.
3. Further stated that as per the live chat agreement, the performance of the celebraties were recorded in the year 2011 and vide email dated 15.07.2011, the representative of the defendant admitted and assured plaintiff no.1 of fast payment for a sum of Rs.30,98,353/. Plaintiff no.1 raised two invoices both dated 23.06.2011, one for Rs.13,01,180.72 and second one for a sum of Rs.21,15,678.60 under the CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 3/13 head of Vodafone and Reliance Star Talk Events respectively to be payable in the name of plaintiff no. 1. Numerous correspondences were exchanged between the parties for clearance of the outstanding amount but later on, the defendant started making one or the other excuses and vide emails dated 12.08.11 and 31.12.11, defendant requested for supply of further documents i.e. PAN card and service tax number etc. Further, vide emails dated 17.12.2012 and 22.03.2013, defendant admitted the liability of Rs.17,15,000/. However, in April 2013, the defendant raised the issue of making the payments in the name of plaintiff no.2 company and not in the name of plaintiff no.1 which was agreed by the plaintiffs. Thereafter, also numerous emails were sent but to no avail. Therefore, the plaintiffs sent the legal notice dated 19.02.2016 u/s 33 of The Companies Act to the defendant and filed the present suit for recovery on 28.09.2016.
WRITTEN STATEMENT:
4. Defendant filed the written statement and admitted that it is interalia, carrying the business in the area of mobile based value added services and filed the suit through its authorized representative Sh.Shiva Kumar. It took the plea that suit is bad for misjoinder and non joinder of proper parties. Defendant denied that any MOU was entered into with the plaintiff in the year 20112012 and took the stand that the plaintiff did not provide any services to the defendant for celebrity Chat Programme. The terms of the agreement were never settled between the CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 4/13 parties though the drafts were shared by the defendant with the plaintiffs. It denied making of any amount by the plaintiff through his own pocket. The plaintiff failed to provide signed copy of the agreement despite requests sent through email. Suit is barred by limitation. Defendant denied any liability to pay any amount and prayed for dismissal of the suit.
5. Plaintiffs filed the replication wherein plaintiffs reiterated their stand as made out in the plaint and controverted the stand taken by the defendant in its written statement.
6. From the pleadings of the parties, following issues were framed:
ISSUES:
1. Whether present suit has been filed by plaintiffs within period of limitation? OPD
2. Whether present suit has been filed by plaintiffs without any cause of action? OPD
3. Whether any MOU/ Agreement was signed between plaintiffs and defendant in the year 20112012? OPD
4. Whether plaintiffs are entitled for decree of recovery against defendant to the tune of Rs.34,16,858/? OPP
5. Whether plaintiffs are entitled to any interest on the aforsaid amount, if yes, at what rate and for what period? OPP
6. Relief.
7. During plaintiff evidence, plaintiff exained PW1 Sh.Sangeet Sirodkar who tendered his affidavit as Ex.PW1/1 and CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 5/13 relied upon the following documents:
1. Email dated 01.02.2011 along with attachment Ex.PW1/A (colly).
2. Email dated 03.02.2011 along with attachment Ex.PW1/B (colly).
3. Copy of Bank Statement of M/s Off Spin Sports & Entertainment for the period 18.03.2011 Ex.PW1/C (colly).
4. Email dated 08.02.2011, 12.02.2011 and 15.02.2011 Ex.PW 1/D (colly).
5. Email dated 09.03.2011 along with attachment Ex.PW1/E (colly).
6. Email dated 02.04.2011, 15.04.2011 and 18.05.2011 Ex.PW 1/F (Colly).
7. Email dated 15.07.2011 along with attachment Ex.PW1/G (colly).
8. Invoies daed 23.06.2011 Ex.PW1/H (colly).
9. Email dated 06.08.2011 Ex.PW1/I.
10. Email dated 12.01.2011 Ex.PW1/J.
11. Email dated 21.11.2011, 06.12.2011, 13.12.2011, 27.04.2012, 11.05.2012 and 19.05.2012 Ex.PW1/K (colly).
12. Email dated 19.06.2012 Ex.PW1/L (colly).
13. Email dated 17.07.2012, 27.08.2012, 28.08.2012 and CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 6/13 13.10.2012 Ex.PW1/M (colly).
14. Email dated 06.11.2012 Ex.PW1/N (colly).
15. Emails dated 12.11.2012, 19.11.2012, 22.11.2012, 27.11.2012, 12.12.2012 and 17.12.2012 Ex.PW1/O (colly).
16. Email dated 21.03.2013 and 22.03.2013 Ex.PW1/P (colly).
17. Email dated 01.04.2013 along with attachment Ex.PW1/Q (colly).
18. Emails dated 04.04.2013, 10.09.2013, 11.09.2013, 06.11.2013, 14.11.2013, 27.11.2013, 02.12.2013, 26.03.2014, 09.05.2014, 29.05.2014, & 05.06.2014 Ex.PW1/R (colly).
19. Emails dated 17.09.2014, 26.02.2015 and 16.06.2015 Ex.PW 1/S (colly).
20. Certificate u/s 65B of The Indian Evidence Act along with affidavit Ex.PW1/T.
8. During defendant evidence, defendants examined DW1 Sh.Shiva Kumar who tendered his affidavit as Ex.DW1/1 and relied upon the Board Resolution as Mark A.
9. I have heard Ld. Counsel for the parties and have gone through the record carefully.
The issue wise findings of the court are as under:
ISSUE NO. 2 & 3:
2. Whether present suit has been filed by plaintiffs without CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 7/13 any cause of action? OPD
3. Whether any MOU/ Agreement was signed between plaintiffs and defendant in the year 20112012? OPD
10. There are two plaintiffs. Plaintiff no.1 Shri Sangeet Shirodkar is the proprietor M/s. Off Spin Sports and Entertainment whereas, the plaintiff no.2 is the company M/s. Off Spin Sports and Entertainment Pvt. Ltd. through its Director Shri Sangeet Shirodkar. However, the plaint has been signed by plaintiff no.1 only in the capacity of Proprietor of M/s. Off Spin Sports and Entertainment.
11. It was argued by Ld. Counsel for defendant that there was no agreement with plaintiff no.1 and th agreement was plaintiff no.2 but there is no Board Resolution filed by plaintiff no.2 company authorizing anyone to file the present suit. Therefore, he argued that defendant has no liability qua the plaintiff no.1 and the suit filed by plaintiff no.2 is defective being not supported by any board resolution and therefore, there is no cause of action in favour plaintiffs and against the defendant.
12. On the other hand, Ld. Counsel for plaintiffs argued that no specific issue in this regard was framed to the effect 'whether suit was instituted by a duly authorized person or not?' He submits that this aspect cannot be equated with cause of action and further he argued that the defendants coaxed the plaintiff no.1 to enter into contract with defendant no.2 on the ground of audit implications and submits that proper and valid cause of action arose in favour of the plaintiffs and CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 8/13 against the defendant.
13. In order to address this issues, it is worthwhile to examine the various emails exchanged between the parties. The record reflects that number of emails exchanged between Shri Sanjeev Shirodkar and the officials of defendant and these emails Ex.PW1/A (colly) to Ex.PW1/S (colly) except Ex. PW1/C and H have been relied upon by the plaintiffs alongwith certificate under Section 65 (B) of The Evidence Act Ex. PW1/T. The only defendant witness DW1 Shri M. Shiv Kumar, during his cross examination had admitted that the emails documents filed in this regard reflect the domain one97.net and address also bears that of their company. DW1 stated that he has no personal knowledge of the case as he joined the company as Asstt. Manager (legal) in January 2015. There is nothing in the testimony of PW1 which can casts any doubt about the authenticity of any of the emails. PW1 during his cross examination categorically voluntarily stated that they proceeded with all the work only on the basis of email confirmations and acceptance from the defendant at various stages and further stated that they proceeded to conduct business without signed agreements on trust but in presence of email confirmations. He further stated that all the commercials were finalized based on email dated 12.02.11.
14. Therefore, in order to understand the nature of transactions between the parties, it is worthwhile to dig into the emails. Ex. PW1/A is the email dated 01.02.2011 from the defendant to the plaintiff no. 1, CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 9/13 the first email sent by the defendant to Shri Sangeet Shirodkar i.e. plaintiff no.1. There is no specific email by plaintiff no.1 accepting the draft agreements sent by the defendant through email during the period the business transaction unfolded. Email dated 15.07.2011 Ex. PW1/G sent by Sh. Karan Gambhir, an official of defendants to plaintiff no.1 suggests that the total amount comes to Rs.30,98,353/, which is the revenue related to number of chats which they have done together and he asked plaintiff no.1 to generate the invoices.
Therefore, thereafter, email dated 12.08.2011 Ex.PW1/J by defendant to plaintiff no.1 reflects that they asked for corrected invoices along with service tax no. and PAN Card copies. Similar is email dated 21.11.2011 Ex. PW1/K and email dated 13.12.2011 shows that the defendant has received invoices but raised the concern that service tax no. is missing in both the invoices and asked for corrected invoices, which were sent by plaintiff no.1. Ex PW1/h are the two invoices issued by the plaintiff no.1 on behalf of the proprietorship.
15. However, despite frequent correspondence, since the payment was not made by the defendant, plaintiff no.1 wrote email dated 19.06.2012 to the officials of the defendant stating, among others, that the contracts were pending at the end of the defendant and plaintiff never received the contract to be signed. Eventually, vide email dated 04.04.2013 Ex PW1/R, the defendant communicated to plaintiff no.1 that they will be able to sign the contract only in Off Spin Pvt. Ltd and CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 10/13 reiterated the same request vide email dated 11.09.2013 when they also stated that they have need to stick to Private Limited only, otherwise, it will have a lot of audit implications. Vide email dated 06.11.2013, plaintiff no.1 agreed to take the payments in Pvt. Ltd. And again asked how to proceed, making a request for early release of payment.
16. Therefore, it is clear that the question of agreement with plaintiff no.2 was a post event phenomenon for the purpose of making payment to plaintiff no.1. Therefore, it cannot be said that there was no agreement with plaintiff no.1 and for want of filing of any board resolution by plaintiff no.2, the suit is bad and reflects no cause of action. The suit is properly filed by the plaintiffs. It also makes it clear that there was no written agreement between the parties and the emails were the basis of the transaction. Accordingly, both these issues are decided issue accordingly.
ISSUE NO. 1:
Whether present suit has been filed by plaintiffs within period of limitation? OPD
17. The suit was filed on 28.09.2016. The last email dated 11.09.2013 was sent by the defendant to the plaintiff stating that they have need to stick to Private Limited only as otherwise it will have a lot of audit implications. Thereafter, there is no email by the defendant acknowledging the debt as per Section 18 of The Limitation Act. Even in email dated 11.09.2013, there is no express acknowledgement by the CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 11/13 defendant of its debt. The last express acknowledgement of debt is in the email dated 22.03.2013 by the defendant written to the plaintiff acknowledging liability of Rs. 30,20,000/ in total and not thereafter. Therefore, the suit have been filed after the expiry of 3 years. Therefore, the same is barred by limitation. Accordingly, this issue is decided in favour of the defendant and against the plaintiffs. ISSUE NO. 4 & 5:
Whether plaintiffs are entitled for decree of recovery against defendant to the tune of Rs.34,16,858/? OPP Whether plaintiffs are entitled to any interest on the aforsaid amount, if yes, at what rate and for what period? OPP
18. Though in the email dated 22.03.2013, defendant had admitted that defendant is willing to pay Rs.13,05,000/ + Rs.17,15,000/ is = to Rs.30,20,000/. Even earlier also, in email dated 15.07.2011, the defendant had admitted that total revenue generated was Rs.30,98,353/. Therefore, it is clear that the above admissions of the defendant clearly showed that there was liability to pay a sum of Rs.30,55,000/. But since the suit is barred by limitation, plaintiffs missed the bus and are not entitled to recover the same. Therefore, both these issues are decided in favour of the defendant and against the plaintiffs.CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 12/13
RELIEF :
19. Accordingly, suit of the plaintiffs is dismissed being time barred with costs of the suit. Decree sheet be prepared.
File be consigned to the Record Room.
Announced and dictated in the open Court on 27.08.2022.
(Munish Markan) Additional District Judge02 (SE), District Courts, Saket, New Delhi pk/ks CS DJ 211711/2016 SANGEET SHIRODKAR & anr. Vs. ONE97 COMMUNICATION LTD Page 13/13