Delhi District Court
M/S Indus Airways Pvt Ltd vs Hcl Infinet Ltd on 7 August, 2013
IN THE COURT OF MS. NITI PHUTELA
CIVIL JUDGE02,SOUTH DISTRICT, NEW DELHI
Suit No. 719/10
M/s Indus Airways Pvt Ltd.
having their registered office at
Flat No.003, Plot No.3.
Rashtrapati Bhawan,
Cabinet Affairs, CGHS, Sector10
Dwarka, New Delhi. .......Plaintiff
Versus
HCL Infinet Ltd.
Registered Office
806, Siddharth
96, Nehru Place110019.
HCL Infosystem Ltd
Frontline Division
E4, Section 11,
Noida 201301, U.P. .......Defendant
Date of Institution : 06.05.2010
Date of reserving the Order : 07.08.2013 (Prelunch)
Date of pronouncement : 07.08.2013 (Postlunch)
JUDGMENT:
1. The present suit was filed by the plaintiff seeking recovery of amount to the tune of Rs. 2,68,967/ alongwith future and Suit No. 719/2010 Page No. 1 of 13 pendentelite interest @12%pa and costs of the suit.
2. Brief facts necessary for disposal of the present suit are that plaintiff is a Pvt Ltd. company having its registered office at Dwarka, New Delhi and Sh. Krishan Gopal Beri is authorised by the company to represent the company in the present case vide a board resolution in his favour.
3. It is the case of plaintiff that the plaintiff availed the services of defendant in respect of their Air Line for setting up VPN Lines and a sum of Rs.5,00,000/ was paid in advance for providing the service to the defendant and two cheques bearing no. 000031 and 000030 amounting to Rs. 2,00,000/ and Rs. 3,00,000/ respectively dated 20.09.2005 and dated 25.09.2005 both drawn on HDFC Bank, K G Marg, New Delhi were issued by plaintiff to the defendant.
4. It is the case of plaintiff that the plaintiff has on various occasions written various letters like one letter dated 03.06.2006 was written to provide details of expenditure done by defendant. Then letter dated 19.08.2009, 31.08.2009 and14.09.2009 were written to defendant for refund of balance amount of Rs.1,74,654/ because the defendant provided service only to the tune of Rs.3,25,267/ but defendant failed to refund the balance amount. An email was written by Sh. Bivash Dutta on 23.10.2009 on behalf of defendant wherein he stated Suit No. 719/2010 Page No. 2 of 13 that the invoice no. 7203001835, 1130010501, 1130010503, 1130010504, 1130010507 and 1111015344 were sent to plaintiff but the same were not booked by plaintiff. In reply to that email an e mail was sent by plaintiff clarifying that except the last invoice i.e 1111015344 the billing done by defendant pertaining to other invoices was incorrect, because no services were provided by defendant at the stations at Delhi, Jammu, Amritsar and Chandigarh and that is why the entries pertaining to said invoices were not entered in the accounts of plaintiff. But despite clarification payment was not refunded and aggrieved by this the plaintiff sent a legal demand notice dated 06.02.2010 to defendant to make the payment of Rs. 1,74,654/ alongwith interest @ 18% per annum. The defendant replied to the said notice and admitted that invoices as mentioned above were not booked by plaintiff but inspite of that they failed to refund the excess payment. Hence, the present suit is filed by plaintiff against defendant.
5. In the WS the defendant has objected to the suit of the plaintiff on the ground that the suit of the plaintiff is not maintainable because the same is time barred. As per defendant, the cheques were issued by plaintiff in Sept, 2005 and services were provided by defendant till December, 2005 on the basis of which invoice were raised by Suit No. 719/2010 Page No. 3 of 13 defendant and the last invoice is dated 16.12.2006 and the plaintiff has filed the present suit in the year 2010 which is clearly beyond the statutory period of three years. It is also averred by defendant that plaintiff has not approached the Court with clean hands and has suppressed the material facts because purchase orders were placed by the plaintiff itself and accordingly services were provided by defendant and invoices were raised and now plaintiff is concealing this fact from this Court.
6. On merits, the defendant replied that various services were provided by defendant at various locations like Delhi, Chandigarh, Jammu, Amritsar, Mumbai, Goa etc. after the orders were placed by plaintiff for supply of hardware and setting up of VPN Lines at airports on above said places. Accordingly, 3 invoices were raised by defendant and 4 debit notes were raised alongwith 2 invoices for supplying of hardware which were duly sent to the plaintiff. The above said invoices amounted to Rs. 5,20,617/ out of which Rs. 5,00,000/ was the amount which was adjusted by the defendant which was paid by plaintiff by way of cheque and Rs. 28000/ was also received by defendant from plaintiff subsequently. Therefore, credit balance of Rs.7383/ was reflected in books of account of defendant which was to be paid by defendant to the plaintiff. It is also the version of Suit No. 719/2010 Page No. 4 of 13 defendant that for providing services to plaintiff, the defendant had availed the services of BSNL for setting up VPN Lines at Airports at various locations. The BSNL after getting the work done raised demand notes on the basis of which debit notes were issued by the defendant to the plaintiff. It is alleged by defendant that the entries which are shown 'as not booked' were pertaining to those invoices which were not taken into account by the plaintiff in their books of account. The defendant denied receiving of any letter dated 30.10.2009. In this background, the defendant prayed that as it is not liable to pay any amount to the plaintiff therefore, the suit of the plaintiff be dismissed.
7. In replication to the WS filed the plaintiff has denied the averments of defendant and reasserted and reiterated the facts of the plaint. It is also stated by plaintiff that letter dated 14.09.2009 and email dated 23.10.2009 was written by defendant admitting the fact that plaintiff has not booked some of the invoices raised by defendant which as per plaintiff is acknowledgment on the part of defendant and therefore, the suit which is filed by the plaintiff in the year 2010 is within the limitation period.
8. Out of the pleadings of the parties following issues were carved out:
Issue No.1: Whether the present suit is barred by law of Suit No. 719/2010 Page No. 5 of 13 limitation? OPD Issue No.2:Whether the plaintiff is entitled to the recovery of amount of Rs. 2,68,967/ from the defendant? OPP Issue No. 3: Whether the plaintiff is entitled to the interest, if any? At what rate and for which period? OPP
9. The plaintiff in order to shed the onus on its shoulders got examined Sh. Krishan Gopal Bedi, Director as PW1, he filed his affidavit which was Ex.PW1/A. He relied upon documents such as copy of resolution as Ex.PW1/1, copy of email dated 23.10.2010 as Ex.PW1/2, copy of letter dated 30.10.2009 as Ex.PW1/3, copy of letter dated 14.09.2009 as Ex.PW1/4, copy of letter dated 03.01.2006 as Ex.PW1/5, postal receipt as Ex.PW1/6, copy of registered letter dated 19.08.2009 as Ex.PW1/7, postal receipts are as Ex.PW1/8, copy of registered letter dated 31.08.2009 as Ex.PW1/9, postal receipts as Ex.PW1/10, copy of notice dated 06.02.2010 as Ex.PW1/11, postal receipt as Ex.PW1/12, reply dated 18.03.2010 as Ex.PW1/13 and copy of invoice as Ex.PW1/14. Apart from him, no other witness was examined by plaintiff and plaintiff's evidence was closed by the statement of Ld. counsel for the plaintiff on 22.05.2012.
10. On the other hand, defendant got examined Sh. D. K. Singh, Suit No. 719/2010 Page No. 6 of 13 Associate General Counsel as DW1 and filed on record his evidence Ex.DW1/A. He relied upon documents such as purchase order as Mark A (colly), statement of account as Mark B, demand notes issued by BSNL as Mark C (colly) and invoice as Ex.DW1/D. Apart from him no other witness was examined. Vide separate statement of Ld. counsel for defendant, defendant's evidence was closed on 11.04.2013.
11. Arguments addressed. Heard. Record perused.
12. My issue wise findings on the issues framed are as follows: Issue No.1 : Whether the present suit is barred by law of limitation? OPD
13. The onus to prove this issue is cast upon the defendant because an objection has been taken by the defendant that the suit of the plaintiff is barred by the provisions of Limitation Act. As per defendant the advance amount of Rs. 5 lacs was given by plaintiff in September 2005 and services were provided by defendant till 2005. The invoices were raised and the last invoice is dated 16.12.2006 but the suit of the plaintiff is filed on 06.05.2010. Hence, as per defendant the suit is filed beyond the limitation period of three years.
14. In this regard the version of plaintiff is that the last invoice which is Suit No. 719/2010 Page No. 7 of 13 raised by defendant is dated 30.06.2007. Therefore, the suit which is filed in May 2010 is within the limitation period of three years. Moreover, as per plaintiff an email was received from defendant on 23.10.2009 wherein the defendant has acknowledged the fact that the invoices raised by defendant were not booked by plaintiff. Therefore, as per plaintiff as there is a specific admission on the part of defendant in October 2009, therefore, the suit is within time.
15. After considering the record and hearing the arguments addressed this court is of the view that in the WS filed by defendant himself it is specifically mentioned that nine invoices/debit notes were raised by defendant and perusal of the same shows that the last debit note was raised on 30.06.2007 and not 16.12.2006 as alleged by defendant and as per Article 1 of Limitation Act in case of open account limitation is to be computed from last payment. Therefore, the suit filed by the plaintiff after raising of last invoice by the defendant is within the limitation period. Moreover, as per Article 22 of Limitation Act 1963 whenever any amount is deposited by the plaintiff with the defendant and the same is payable on demand the limitation starts when the demand is raised. In the present case Rs. 5 lacs was paid by plaintiff by way of cheques dated 20.09.2005 and 25.09.2005 in advance with the understanding that after providing of Suit No. 719/2010 Page No. 8 of 13 services by defendant the expenses will be deducted and rest of the amount will be refunded. Therefore, the amount was refundable at the demand of plaintiff. Going by the documents placed by plaintiff though there is mentioning regarding the fact that plaintiff asked for expenditure incurred from the defendant on 03.01.2006 which is Ex PW1/5, but there is no averment in the same by the plaintiff that the plaintiff demanded the balance amount. It was only for providing of details of the expenditure incurred. Further the plaintiff has placed on record the letter sent to defendant dated 19.08.2009 which is Ex PW1/7 wherein the plaintiff has claimed the refund of the excess amount to the plaintiff. Therefore, even by applying the abovesaid provisions to the case in hand the demand was raised by plaintiff for the first time in August 2009 and the suit which is filed in May 2010 is therefore within the limitation period.
16. Therefore in view of the abovesaid discussion, this court is of the view that the suit filed by the plaintiff is within the limitation period. The issue is therefore decided in favour of the plaintiff and against the defendant.
Issue No.2: Whether the plaintiff is entitled to the recovery of amount of Rs. 2,68,967/ from the defendant? OPP Suit No. 719/2010 Page No. 9 of 13
17. The onus to prove this issue was cast upon the plaintiff. It is the version of the plaintiff that an advance of Rs. 5 lacs was given to the defendant in September 2005, but the services provided by defendant were only to the tune of Rs. 3,25,267/ and the rest of the amount i.e. Rs. 1,74,654/ is still outstanding which is to be refunded by defendant. The plaintiff has alleged a fact that when services were provided by defendant there were no offices of plaintiff operational at Amritsar, Chandigarh, Jammu and Goa. Therefore, as a negative fact cannot be proved, hence, the onus to prove that services were provided by defendant at the abovesaid stations was on defendant to prove in affirmative.
18. The defendant to shed this onus filed on record the copy of demand notes raised by BSNL for providing services at the abovesaid locations. The said demand notes are marked as Mark C (colly). The defendant also relied upon the purchase order placed by plaintiff which shows that plaintiff itself placed an order for providing services at abovesaid stations. The said purchase orders are Mark A (colly). Therefore, the defendant by relying upon these documents have shed the onus placed upon its shoulders and now the onus had again shifted upon the plaintiff to disprove the same. In this regard it is alleged by plaintiff that in the email dated 23.10.2009 the Suit No. 719/2010 Page No. 10 of 13 defendant has itself acknowledged/admitted the fact that one invoice dated 29.03.2006, four invoices of 30.06.2007 and one invoice of 26.02.2005 were not booked by plaintiff which is admitted by defendant also.
19. After hearing both the parties and considering the record this court is of the view that though the defendant has not placed on record the invoices which were raised by it except for document Ex.DW1/D but raising of the invoice is not in dispute because even the plaintiff has averred that said invoices were raised by both the parties, however, the defendant has shown from the documents that orders were placed by plaintiff for providing services at the abovesaid stations. Moreover, no document has been placed by the plaintiff to show that the fact that the offices at the abovesaid location were not operational was informed to the defendant at the relevant time. The plaintiff has only filed one letter which is dated 30.10.2010 wherein, the abovesaid fact was first time mentioned by the plaintiff, the said letter is Ex.PW1/3. The plaintiff has alleged to have been sent the same through post but no postal receipt is filed on record. Even if this document is relied upon then also plaintiff has not been able to show that after placing of the order the fact regarding non operation of the offices was informed to the defendant. Therefore, it is clear that Suit No. 719/2010 Page No. 11 of 13 plaintiff has not been able to shed the onus that services were not provided at the four disputed stations.
20. It is also relevant to mention here that though the defendant has not filed any statement of account to corroborate its version but purchase order sufficiently corroborates that orders were placed by plaintiff for services at disputed stations also along with other stations but plaintiff has not filed any document informing the defendant after placing of order that the said stations were non operational, nor there is an averment on the part of plaintiff to the effect that it was orally informed, which therefore shows that on the basis of balance of probabilities the version of defendant seems to be correct.
21. Therefore plaintiff has not been able to shed the burden placed upon its shoulders that it is entitled to the amount claimed by it. But it is relevant here to mention that in the course of trial plaintiff moved an application under Order 12 Rule 6 on the ground that as defendant has itself admitted in its pleadings and documents that a credit balance of Rs. 7,383 was admitted by defendant to be due against plaintiff therefore it was prayed that admitted amount be ordered by the court to be released to plaintiff. The said application was allowed and a partial decree for sum of Rs. 7,383 was passed by Ld. Predecessor Judge in which Ld. Judge specifically denied any Suit No. 719/2010 Page No. 12 of 13 interest on this amount. Hence plaintiff is entitled to only the above said amount and the present issue is decided against the plaintiff. Issue No. 3: Whether the plaintiff is entitled to the interest, if any?At what rate and for which period? OPP
22. The onus to prove this issue is upon the plaintiff, but as has been discussed by this court under issue no.2 that plaintiff is not entitled to relief for recovery of the abovesaid amount, therefore, he is also not entitled to interest on the same. Hence, the present issue is also decided against the plaintiff and in favour of defendant.
Issue No. 4: Relief
23. On the basis of discussion pertaining to issue no.2 and 3, the suit of the plaintiff is dismissed and plaintiff is not entitled to recover the amount claimed from the defendant.
24. Decree sheet be drawn accordingly.
25. File be consigned to record room after due compliance.
Announced in the open Court (NITI PHUTELA)
dated 07/08/2013 Civil Judge02, South District,
Saket Courts, New Delhi
Suit No. 719/2010 Page No. 13 of 13