Delhi District Court
M/S Macmillan Publishers India Private ... vs Doon Public School on 3 May, 2018
IN THE COURT OF MS. PRAGATI:CIVIL JUDGE:
CENTRAL TIS HAZARI COURTS : DELHI
Suit No. 96726/16
1.M/s Macmillan Publishers India Private Ltd.
Having it office at: 02/10, Ansari Road, Darya Ganj, New Delhi110002 Through it' Authorized Representative Sh. Ashwani Kumar Bhalla Vide Resolution of the Board of Director Dated 28.06.2013 .......... Plaintiff VERSUS
1. Doon Public School, Paschim Vihar, New Delhi110063 .........Defendant Date of institution : 25.03.2015 Date of decision : 03.05.2018 SUIT FOR RECOVERY OF Rs.1,71,122/ (RUPEES ONE LAKH SEVENTY ONE THOUSAND ONE HUNDRED AND TWENTY TWO ONLY) CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 1 of 8 J U D G M E N T Present: None.
The suit in hand is hand has been filed by the plaintiff against the defendant seeking the recovery of Rs.1,71,122/.
2. Briefly stating plaintiff's case is that it is a Private Limited Company duly incorporated under the Companies Act having its office at 2/10, Ansari Road, Darya Ganj, New Delhi2. That earlier the plaintiff company was registered as Macmillan Publishers India Limited and now it is registered as Macmillan Publishers India Private Limited in accordance with the provisions of the Companies Act. That the suit in hand has been filed through Sh. Krishna Nath, Financial Manager of the plaintiff company, who has been duly authorized by it vide a resolution dated 28.06.2013 passed by its Board of Directors.
3. It has been stated that plaintiff company is involved in the business of publishing school text books and other books and defendant had approached it and had placed the order for purchase of printed school books on the terms and conditions agreed between them. That the books ordered by the defendant were directly supplied either to the defendant, or on its specific directions, the books were supplied to the franchises of the defendant in the different States of the country. That the bills were duly issued against the purchases made by the defendant and as per the terms and conditions agreed, the defendant had to make the payment within 30 days after delivery of books etc. and in case the defendant fails to make the payment within CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 2 of 8 30 days then it would be liable to pay interest @ 2 % per month. That it was further agreed that in case the defendant fails to make the payment within the stipulated period then it would be liable to pay further compound interest on the outstanding payment. That as per the ledger and account of the defendant maintained by it (plaintiff company) an amount of Rs.1,71,122/ is outstanding against the defendant. That despite its repeated requests and service of legal notice, the defendant has failed to make payment of the aforesaid amount. Hence, the suit in hand has been filed and prayer made that a decree for recovery of Rs.1,71,122/ be passed in its favour and against the defendant alongwith pendentelite and future interest @ 24 % per annum from the date of filing of the suit till its realization.
4. On notice, defendant school filed its appearance before the court and filed its written statement stating therein that there is no privity of contract between it and the plaintiff company since the defendant never placed any purchase order with the plaintiff company and neither any material was supplied to it by the plaintiff company. It has been alleged that the defendant school has given its franchisee to various other school and since the management of the said franchisee schools is different from the management of the defendant school, therefore, it does not have any interference in the day to day working of the franchisee schools and so the defendant school is not responsible for the deeds of the franchisee schools. That the bills relied upon by the plaintiff are issued in the name of franchisee CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 3 of 8 schools of the defendant school and the said orders have been placed by the franchisee school upon the plaintiff company without the knowledge and consent of the defendant school. Hence, prayer has been made that the suit in hand is not maintainable against it and is liable to be dismissed.
5. Replication to the written statement has been filed by the plaintiff stating therein that the consignments were sent to the defendant school on various occasions which were duly received by the defendant. That the invoices raised by the plaintiff against the defendant were also sent to the defendant by courier and email and no objection was ever raised by the defendant in this regard which clearly shows that defendant has acknowledged the invoices raised against it. It has further been stated that vide its letter dated 06.03.2013, the defendant had asked the plaintiff company to open the account in the name of defendant so as to make the process of purchasing and receiving of goods easier. That defendant has been doing business with the plaintiff since March, 2013 and has made payment against the supply of books till July, 2014. Further, the averments of the written statement have been denied and the averments of the plaint have been reaffirmed.
6. From the pleadings of the parties, following issues were framed :
1) Whether the plaintiff is entitled for recovery or not ? OPP
2) Whether the plaintiff is entitled for any interest if, yes, at what rate CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 4 of 8 and for which period ? OPP
3) Relief
7. Thereafter, both the parties were asked to lead their evidence. Plaintiff in its evidence got examined Sh. Krishna Nath, (Finance Manager of plaintiff company) as PW1, Sh. Rajeev Sharma as PW2. On the other hand no evidence was led by the defendant.
8. Arguments advanced by ld. Counsels for both the parties were heard. Case filed perused carefully.
My issue wise findings are as under: Issue No. 1 and 2:
9. Both these issues are being taken up together in order to avoid any repetition. The onus to prove these issues was upon the plaintiff. In order to prove the same, PW1 Sh. Krishna Nath stepped into the witness box and tendered his affidavit Ex.PW1/A in his testimony wherein he reiterated the averments of the plaint. He further relied upon the following documents: (I) Ex.PW1/1 i.e. Resolution passed dated 28.06.2013.
(ii) Mark 'A' i.e. copy of certificate of Incorporation.
(iii) Ex.PW1/3 (colly.) i.e. Bills & Consignment notes.
(iv) Ex.PW1/4 i.e. statement of account.
(v) Ex.PW1/5 i.e. legal notice.
(vi) Mark 'B' (colly.) i.e. Email communication.
(vii) Ex.PW1/B i.e. certificate u/s 65B Indian Evidence Act.
CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 5 of 810. In his crossexamination he expressed his ignorance as to whether he has filed before the court the purchase orders placed by the defendant or not. He stated that he had received an acknowledgment from the defendant regarding the supply of the books by plaintiff company but there is no such endorsement of acknowledgement on the bills raised by the plaintiff company. That in the bills/ invoices (Ex.PW1/3) there is builty against which plaintiff recognized the acknowledgment of supply of the books but admitted that there is no such acknowledgement by the defendant for receiving of goods in the said builty. That he does not have the purchase order placed by other schools with the plaintiff company but volunteered that the plaintiff company received all the orders from the defendant schools.
11. PW2 Sh. Rajeev Sharma tendered his affidavit Ex.PW2/A in his testimony reiterating therein the averments of the plaint.
12. In his crossexamination, he stated that he does not have any identity card / authority letter to prove that he is an employee of plaintiff company. That he has not filed any purchase order or contract regarding the alleged transactions with the defendant school or any document to show that defendant school had directed the plaintiff company to supply the books to its franchisee schools.
13. Pertinently, plaintiff has alleged that as per the orders placed by the defendant school, printed material/ books were supplied by it to the defendant in Delhi as well as to the other franchisee schools of the defendant school situated in the different parts of the CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 6 of 8 country. However, except one account opening form of the defendant school with the plaintiff and a copy of purchase order dated 14.11.2013 (Ex.PW1/3 colly.), no purchase order in original has been tendered by the plaintiff in its evidence. The perusal of copy of the order dated 14.11.2013 (Ex.PW1/3 colly.) reveals that the defendant school had placed an order for purchase of certain number of books with the plaintiff but the same can not be relied upon since no such document has been tendered into evidence by the plaintiff company to show that the said books were delivered by the plaintiff to the defendant school. Careful perusal of the bills of purchase (Ex.PW1/3 colly.) relied upon by the plaintiff reveals that most of them pertain to the Doon Public Schools situated in the different parts of the country other than Delhi. Meaning thereby the same pertain to the franchisee schools of the defendant, who, as rightly argued by the ld. Counsel for the defendant have their separate management than that of the defendant school. Since the other franchisee schools have not been made a party to the suit in hand, neither any purchase order placed by the said franchisee schools with the plaintiff nor any document to show that the defendant school had directed to plaintiff company to supply the books etc. to its franchisee schools, has been tendered into evidence by the plaintiff, therefore, the defendant school can not be held liable for the purchases made by the franchisee schools of the defendant.
14. Further, these builites (Ex.PW1/3 colly.) do not have any CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 7 of 8 endorsement of acknowledgement on the part of either the defendant school or its franchisee schools. Merely maintaining of statement of accounts (Ex.PW1/4) in its own record by the plaintiff is not sufficient to show that the defendant school had placed orders for purchase of printed material or that the same was duly supplied by the plaintiff to the defendant. Moreover, plaintiff's own witness i.e. PW1 Sh. Krishana Nath has expressed his ignorance as to whether there is any purchase order or agreement to show that the defendant school had placed purchase orders with the plaintiff. As such, this court is of the view that the plaintiff has failed to prove that defendant school had placed any orders with the plaintiff for purchase of printed material/ books etc. Hence, in view of the aforesaid discussion, both these issues are decided against the plaintiff.
Relief:
15. In view of the aforesaid discussion, the suit in hand is hereby dismissed with costs. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court PRAGATI Digitally signed by PRAGATI Date: today i. e. on 03.05.2018 2018.05.31 09:19:58 +0530 (PRAGATI) CIVIL JUDGEC/THC DELHI Note: This judgment contains of 8 pages and all the pages have been checked and signed by me. (PRAGATI) CIVIL JUDGEC/THC DELHI CS No. 96726/16 Macmillan Publishers India Pvt. Ltd. Vs. Doon Public School Page 8 of 8