Delhi District Court
One97 Communications Ltd vs Bracket Cinemas Private Limited on 4 January, 2025
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE (COMMERCIAL COURT)-06
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLSE01-010684-2022
CS (Comm.) No. 1115/2022
One97 Communications Ltd.
having its registered office at:
136, First Floor,
Devika Tower,
Nehru Place,
New Delhi-110019.
Corporate Office at:
B-121, Sector-5, Noida,
Uttar Pradesh-201301. ....Plaintiff
VERSUS
Bracket Cinemas Private Limited
Company incorporated under
the Provisions of
Indian Companies Act, 1956,
Having its office at:
M-21, Balram House,
Commercial Complex,
Karampura,
New Delhi. ....Defendant
Date of institution of the suit : 15.11.2022
Date on which judgment was reserved : 23.12.2024
Date of pronouncement of Judgment : 04.01.2025
NEERA
BHARIHOKE
Digitally signed by
NEERA
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 1 of 26 BHARIHOKE
Date: 2025.01.04
15:20:25 +0530
JUDGMENT
SUIT FOR RECOVERY
1. By way of this judgment, I shall decide the suit of the Plaintiff filed for recovery of Rs.1,24,77,654/- alongwith interest.
CASE OF THE PLAINTIFF AS SET UP IN THE PLAINT
2. Brief facts of the case as stated by the Plaintiff in the plaint are that:
a. Plaintiff company is engaged in the business of providing value added services to the subscriber of telecom operator and is providing services related to utility bill, payments, recharges, ticketing including various types of travel and movie ticketing, and various other financial services to the customers and the present suit has been filed by Sh. Jitender Kumar on behalf of Plaintiff company duly authorized vide Board Resolution dated 25.02.2021.
b. The Plaintiff is the owner of Paytm, Paytm IVR, Paytm WAP site and also the Plaintiff owns and operates the online ticketing Platform under the brand name of Paytm to facilitate booking of tickets of movies, sporting and cultural events etc. on its platform.
c. The Defendant through its Directors approached the Plaintiff and represented that it has necessary infrastructure and license/approvals to run Cinema Theatre in the name of "Bracket NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 2 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:20:31 +0530 Cinema" located at Melanga Mall, C-8, C-9, Phase-II, Pallav Puram, Roorkee Road, Meerut-250110 UP. The Defendant company also represented to the Plaintiff that it wanted to promote, market, list and book the movie tickets of the cinema theatre through the Plaintiff company's platform. On the basis of the said representation/warranties made by the Defendant company; the Plaintiff company agreed to enter into a Ticketing Agreement dated 02.08.2018 (hereinafter referred to as "Principal Agreement") with the Defendant company to upload the ticket inventory of Defendant company theatre and provide related products and services along with digital contents and such other information for listing the same on the Paytm Marketplace (hereinafter referred to as "objective"). It was further agreed that Defendant company shall offer the movies tickets booking exclusively through Paytm Platform as per the terms and conditions stipulated in the Principal Agreement executed between the Defendant company and the Plaintiff company.
d. The Principal Agreement was effective from 02.08.2018 for the above said objective by Defendant company through Plaintiff company's Paytm Platform. An addendum Agreement was executed between the Defendant company and the Plaintiff company on 29.01.2019 and was effective and enforceable w.e.f. 29.01.2019 itself and was to remain in force until terminated (hereinafter collectively referred to as "Agreement").
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:20:38 +0530 CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 3 of 26 e. Clause 4.1 of the said Principal Agreement dated 02/08/2018 provides the scope of work as under:
"4.1 Merchant shall offer the movies Ticket Booking through the Paytm Platform and shall upload continually on an as on the basis the comprehensive and up to date information, including images, facility and service description and shall such other details including any terms and conditions for availing the Ticket Bookings if any, in this connection more specifically provided in Schedule A."
f. By virtue of addendum No.1 dated 29.01.2019, clause 4 was added in schedule B of the principal agreement and the Plaintiff company as per addendum agreement paid the Defendant company an amount of Rs.1,00,00,000/- (Rupees One Crore only) out of which Rs.95 Lakhs was to be adjusted against base ticket price and remaining Rs.5 Lakhs was to be adjusted towards convenience fee share of merchant. The amount of Rs.1,00,00,000/- was paid by the Plaintiff company to Defendant company in two different transactions of Rs. 95,00,000/- via NEFT on 13.02.2019 through UTR no. CMS1035638107 and Rs.5,00,000/- via NEFT on 27/02/2019 through UTR no. CMS1049297730 in Axis Bank account no.918020049031254.
g. Clause 4 of Schedule B of the said Agreement read as:
"4. Advance against base Ticket price and Convenience Fee share of Merchant: One97 hereby agrees to provide an advance amount of Rs.10,000,000/- (Rupee One Crore Only) wherein Rs.95,00,000/- (Rupees Ninety Five Lakhs only) shall be deducted against the base ticket price and remaining Rs.5,00,000/- (Rupees Five lakh only) shall be adjusted towards the Convenience fee share of Merchant. The Merchant agrees that One97 shall adjust Rs.90/- per Ticket NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 4 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:20:46 +0530 from the advance amount of base Ticket price of Rs.95,00,000/- (Rupees Ninety five lakh only) and Merchant share of the Net Convenience fee @ 40% per ticket booking shall be adjusted from the amount of Rs.5,00,000/- (Rupees Five lakh only) paid against the net convenience fee share of the Merchant till the advance amount of is recovered. In case of termination of the agreement, merchant agrees to refund the balance unused amount against Rs.10,000,000/- (Rupee One Crore Only) to One97 which is over and above Merchant's convenience fee share and the base ticket price, taxes shall be applicable as extra."
h. As per Clause 4.1 read with Clause 2 & 3 of Schedule A of the said Agreement, the Defendant company was contractually obligated to provide/update and upload the ticket inventory and fix rates of ticket booking in respect of its theatre alongwith any and all additional services ought to be availed by customers at the Theatre of the Defendant company.
i. Cinema theatre of the Defendant company was closed due to National Lockdown imposed by Central Govt. of India on 23.03.2020 due to spread of Covid-19 virus. The National lockdown was gradually lifted and the Govt. allowed resumption of activities including functioning of cinema theatres. However, Defendant company failed to resume functioning of cinema theatre and till date of filing of the suit, the cinema theatre had not been made operational by the Defendant company.
j. The officials of the Plaintiff company confronted the Defendant company to know the reason of non-resumption of cinema theatre Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 5 of 26 2025.01.04 15:20:53 +0530 despite lifting of restrictions by Central Govt./State Govt. The Defendant company apprised the Plaintiff company that electricity supply to cinema theatre has been disconnected due to non-payment of electricity bill and Defendant company is not able to liquidate electricity dues.
k. The Plaintiff company also wrote numerous emails to the Defendant company to know the status of resumption of operation of cinema theatre but the Defendant company failed to give any cogent and reasonable reply and it became clear to the Plaintiff company that the Defendant company will never make cinema theatre live and operational. From the acts and conducts of the Defendant company it became clear to the Plaintiff company that the Defendant company has no intent to run and operate cinema theatre from the aforesaid address as such whole purpose, objective and aim of taking the cinema theatre in pursuant to the said Agreement stand defeated and jeopardized and no fruitful purpose will be served in keeping the said Agreement alive and binding between the parties.
l. However, the Plaintiff company came to know that the Defendant company has formed a separate entity named "Rapid Reels Private Limited" and running a cinema from the same premises in the name of "Rapid Cinema", whereas the Defendant company has been continuously deceiving the Plaintiff company by giving one reason or the another for not keeping the cinema operational. The NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 6 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:21:00 +0530 intentions of the Defendant company were malafide to extort money from the Plaintiff company and not to perform the obligation of the said agreement. The aforesaid act of the Defendant company exhibited the intentions of cheating, misrepresentation and criminal breach of trust against the Plaintiff company. That entire purpose and aim of execution of said Agreement was to sell tickets of cinema theatre of the Defendant company exclusively through online platform of Plaintiff company and per se when the Defendant company had no intent to run and operate cinema theatre from the abovementioned address, as such no useful purpose will be served by keeping the said Agreement binding and effective between the parties as such the said Agreement was terminated with immediate effect and the Plaintiff company was relieved and discharged from duties and obligations as entailed under the Principal Agreement read with Addendum Agreement.
m. The Plaintiff company is entitled to recover amount of Rs.79,97,787/- from the Defendant company out of the amount of Rs.1,00,00,000/- paid in pursuance to addendum dated 29.01.2019 as per details mentioned below:
DMID Particular Amount Recovered Recovery
931256 Adv against 95,00,000/- 18,73,080/- 76,26,920/-
TP
931256 Adv against 5,00,000/- 1,29,133/- 3,70,867/-
Conv. fee
NEERA
BHARIHOKE
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 7 of 26
Digitally signed by
NEERA
BHARIHOKE
Date: 2025.01.04
15:21:08 +0530
n. The Defendant company is also liable to pay interest @ 18% per
annum to Plaintiff on the outstanding payment of Rs.79,97,787/-.
o. The Plaintiff company is also entitled to recover damages of Rs.40 Lakhs as per clause 5 of Schedule-B (as amended) from the Defendant company which reads as:
"* Rupees Forty Lakhs only (Rs.40,00,000/-) plus applicable taxes, if the breach is committed during the second year of Non-Compete Period."
p. The Defendant company vide email dated 22.10.2021 offered to pay Rs.23,00,000/- in January/February 2022 and rest of the amount in proportion of Rs.20,00,000/- each year so as to clear dues of the Plaintiff company. In response to the proposal, the Plaintiff company considering its long-term association with the Defendant and also considering the then prevalent difficult situation of the Defendant company accommodated the proposal with a condition that the Defendant company shall give a collateral security in shape of at least postdated cheques to the Plaintiff company for its interest to be secured. However, the Defendant company not only failed to give any security to the Plaintiff company but also failed to respond to the Plaintiff company emails and request to return its legal dues. Thus, the Plaintiff company specifically made it clear to the Defendant company that it wants entire dues to be cleared on or before 31.03.2022.
q. Plaintiff company also sent legal notice dated 19.01.2022 to the NEERA CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 8 of 26 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:21:14 +0530 Defendant company calling upon the Defendant complainant to pay amount of Rs.79,97,787/- alongwith interest @18% per annum alongwith damages of Rs.40 Lakhs to the Plaintiff company but the Defendant despite receipt of the said notice, willfully and deliberately avoided to comply the said legal notice.
r. At the time of filing of the suit, the Defendant was liable to pay an amount of Rs.1,24,77,654/- (Rupees One Crore Twenty Four Lakhs Seventy Seven Thousand Six Hundred Fifty Four only) to the Plaintiff company i.e. Outstanding amount of Rs.79,97,787/-, interest @ 18% per annum from 21.01.2022 to 21.05.2022 amounting to Rs.4,79,867/- and damages as per clause 5 of Schedule B attached to the Ticketing Agreement.
s. The Plaintiff initiated Pre-Institution Mediation against the Defendant on 17.02.2022. However, the Defendant did not respond/attend the same on account of which Pre-Institution Mediation was a non-starter report dated 02.04.2022.
3. Hence the present suit was filed.
CASE OF THE DEFENDANT
4. Defendant was duly served on 26.05.2023 and appeared through Counsel on 12.09.2023. However, neither the Written Statement nor the Vakalatnama was filed and therefore vide order dated 12.09.2023, the right of the Defendant to file Written Statement was closed and the NEERA BHARIHOKE Digitally signed by CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 9 of 26 NEERA BHARIHOKE Date: 2025.01.04 15:21:22 +0530 matter was adjourned for Plaintiff's evidence. The Defendant had been appearing on various dates. On 02.02.2024, Plaintiff filed an additional affidavit with Certificate under Section 65-B of Evidence Act.
PLAINTIFF'S EVIDENCE
5. Plaintiff examined PW-1 Sh. Jitender Kumar, working as Manager (Litigation) with the Plaintiff Company. He presented his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of the plaint and relied upon the following documents: -
1. Certificate of Incorporation is Ex.PW-1/1. (OSR).
2. Board Resolution dt. 25.02.2021 is Ex.PW-1/2. (OSR).
3. Ticketing agreement dt. 02.08.2018 is Ex.PW-1/3.
4. Addendum no. 1 dt. 29.01.2019 is Ex.PW-1/4.
5. Statement of account is Ex.PW-1/5.
6. E-mail dt. 22.02.2021 is Ex.PW-1/6.
7. Legal notice dt. 19.01.2022 is Ex.PW-1/7.
8. Postal receipt is Ex.PW-1/8.
9. Tracking Report is Ex.PW-1/9.
10. Complaint dated 30.11.2023 is Ex.PW-1/10.
11. E-FIR is Ex.PW-1/11
12. Certificate under section 65 B of Indian Evidence Act dated Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 10 of 26 2025.01.04 15:21:31 +0530 05.11.2022 is Ex.PW-1/12.
13. Certificate under section 65 B of Indian Evidence Act dated 02.02.2024 is Ex.PW-1/13.
5. As the Plaintiff had tendered photocopies of some documents for which originals had not been produced, the photocopies of those documents were allowed to be exhibited for the purpose of identification alone in view of law laid down in Shri Prem Chandra Jain (Deceased) represented by LRs vs Shri Sri Ram (Deceased) represented by LRs decided on 12 October, 2009 by Hon'ble High Court of Delhi in CM(M) 1764-66/2005.
6. PW-1 was duly cross examined by learned Counsel for Defendant on 27.08. 2024 and was discharged thereafter.
7. The Plaintiff's Evidence was closed vide order dated 27.08.2024.
DEFENDANT'S EVIDENCE
8. As the right of the Defendant to lead his defence was already closed vide order dated 12.09.2023, therefore, the matter was not listed for Defendant's Evidence and the matter was listed for final arguments. On 23.12.2024, the Defendant furnished his address by way of affidavit in terms of order dated 05.12.2024.
FINAL ARGUMENTS NEERA
BHARIHOKE
Digitally signed by
NEERA BHARIHOKE
Date: 2025.01.04
15:21:41 +0530
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 11 of 26
9. Learned Counsel for Plaintiff argued that Ticketing
Agreement/Principal Agreement was executed between the parties on 02.08.2018 followed by execution of Addendum Agreement dated 29.01.2019 and the Plaintiff company as per Addendum Agreement paid the Defendant company an amount of Rs.1,00,00,000/- out of which Rs.95,00,000/- was to be adjusted against base ticket price and remaining Rs.5,00,000/- was to be adjusted towards convenience fee share of merchant. He submitted that cinema theatre of Defendant company was closed due to national lockdown on 23.03.2020. The lockdown was lifted gradually but Defendant company failed to resume functioning of cinema theatre. He also invited attention to the mail dated 22.10.2021 written by the Defendant to the Plaintiff offering to pay Rs.23,00,000/- in January/February 2022 and rest of the amount in proportion of Rs.20,00,000/- each year so as to clear the dues of the Plaintiff company. But the Defendant did not make the said payment in terms of the mail dated 22.10.2021. He also submitted that Defendant neither made any payment after repeated requests of Plaintiff nor even after receipt of legal notice of demand dated 19.01.2022. Attention was also invited to clause 5 of Schedule B attached to the Ticketing Agreement and it was argued that the Plaintiff is also entitled to damages of Rs.40,00,000/-in view of the same. Learned Counsel for Plaintiff also argued that the right of the Defendant to file Written Statement was closed and that the Plaintiff has proved its case and is entitled to recover the suit amount from the Defendant.
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2025.01.04
15:21:51
+0530
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 12 of 26
10. On the other hand, learned Counsel for Defendant argued that Ticketing Agreement/Principal Agreement dated 02.08.2018 does not bear the signatures of Plaintiff as well as Defendant and was therefore never executed between the Plaintiff and the Defendant. He also argued that even on the Addendum Agreement dated 29.01.2019, the signatures of AR of Plaintiff company are different on different pages. By inviting attention to cross examination of PW-1, learned Counsel for Defendant argued that Ticketing Agreement/Principal Agreement relied upon by the Plaintiff is the copy of the original agreement and its scanned copy is stated to have been downloaded but the person who scanned the same has not been examined by Plaintiff. He argued that despite Plaintiff knowing that the original document has been lost, by non-examining of the said witness, the Plaintiff has been unable to prove the execution of any Ticketing Agreement/Principal Agreement dated 02.08.2018. Similar was the argument of the learned Counsel for Defendant in respect of e-mail dated 22.10.2021 that the concerned witness has not been examined and that therefore, the Plaintiff has been unable to prove the said mail. Learned Counsel for Defendant argued that certificate under section 65 B of Evidence Act does not fulfill the requirements of the said section and that the witness had stated that he had downloaded the agreement but had not got the official laptop/renewal receipt of antivirus nor was he able to mention/inform the hardware system from which the agreement was downloaded. He also argued that the Plaintiff has filed 2 Certificates under section 65 B of Evidence Act but both have flaws, original documents have been lost, the copy of Ticketing Agreement/Principal Agreement on record does not have the signatures Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2025.01.04 CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 13 of 26 15:22:00 +0530 of the parties. No relevant witness stepped into the witness box to verify the contents of the agreement or to prove the contents of the mail or from police station to verify E-FIR. He also argued that the bank account statement of the Plaintiff has not been filed nor has any witness been called from the bank to verify the alleged payments reflecting in statement of account filed by the Plaintiff and no witness has been examined who scanned the original agreement and that therefore, Plaintiff has been unable to prove its case and therefore, the suit deserves to be dismissed.
11. In rebuttal, learned Counsel for Plaintiff argued that Ticketing Agreement/Principal Agreement was e-signed contract and therefore, does not need the signatures of the parties. He stated that bank details of the Defendant are mentioned in the Schedule C of Ticketing Agreement/Principal Agreement and the payment was debited and credited from the said account of the Defendant. He also argued that the agreement is an E-contract and it is not a physically signed contract. Learned Counsel for Plaintiff submitted that Plaintiff has proved E-FIR, E-complaint and there has been no cross examination in regard to the same and therefore, it stands proved. He reiterated his submissions as made in the plaint.
FINDINGS
7. The detailed submissions of learned Counsels for parties were heard. I have carefully gone through the record.
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2025.01.04
15:22:08
+0530
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 14 of 26
8. The case of the Plaintiff is based upon the Ticketing/Principal Agreement dated 02.08.2018. The Plaintiff has submitted that the Plaintiff had lost the original documents including the Principal Agreement and the Addendum thereto dated 29.01.2019 and that a police complaint and E-FIR was filed on behalf of the Plaintiff. The E-FIR has been perused. The documents stated to have been lost are Principal Agreement and the addendum thereto dated 29.01.2019 executed between the Plaintiff and the Defendant, the copy of statement of account related to the Defendant, legal notice dated 19.01.2022 and its postal receipt issued to Bracket Cinemas Pvt. Ltd. by Defendant.
9. PW-1 has appeared as a witness and in his examination in chief tendered Ticketing agreement dated 02.08.2018 as Ex.PW-1/3 and Addendum no. 1 dated 29.01.2019 as Ex.PW-1/4. It was categorically observed that the Plaintiff had tendered photocopies of some documents for which originals had not been produced. The photocopies of those documents were allowed to be exhibited for the purpose of identification alone. As the defence of the Defendant was struck off, its Counsel was allowed to cross-examine PW-1 only to a limited extent and not to put defence of the Defendant.
10. PW-1 is Mr. Jitender Kumar who has deposed that he was working as Manager (Litigation) with the Plaintiff company. He has also deposed that he was well conversant with the facts and circumstances of the case. He has relied on the Board Resolution dated 25.02.2021 NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 15 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:22:15 +0530 deposing that he had been authorized by the said board resolution to institute, sign, file and verify the present suit, depose in the court, sign affidavits, sign Vakalatnama in favor of advocates, applications etc.
11. It is noticed that Board Resolution in favour of PW-1 is general authorization and not case specific authorization. Further during his cross-examination, a question was put to PW-1 as to when he joined Plaintiff company and in which capacity to which he replied that he joined in August 2020 as a Litigation Manager. All the facts narrated by Plaintiff about execution of Principal Agreement/ticketing agreement and Addendum no.1 are of 2018 and 2019 as Principal Agreement/ ticketing agreement has been stated to have been executed on 02.08.2018 and Addendum no.1 has been executed on 29.01.2019. Deposition of PW-1 that he was well conversant with the facts and circumstances of the case becomes doubtful as he joined the Plaintiff Company in August 2020, much after execution of these two documents from which the liability of the Defendant is alleged to have arisen. The said fact is relevant in view of the fact that the original documents have been alleged to have been lost by the Plaintiff.
12. During his cross-examination, PW-1 was asked that from which electronic equipment he had downloaded the ticketing agreement alongwith addendum agreement and he answered that the documents are already scanned on the official system of the Plaintiff company and officials can download the same from their official laptop. However, when it is the case of the Plaintiff that original ticketing agreement and Addendum thereto had been lost, in my considered opinion, the Plaintiff NEERA BHARIHOKE Digitally signed by CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 16 of 26 NEERA BHARIHOKE Date: 2025.01.04 15:22:22 +0530 should have examined the person who executed the agreement and addendum thereto at the relevant time as a witness to prove these two documents or could have produced the official who had scanned the document on the official system of the Plaintiff company by filing his affidavit under section 65-B of Indian Evidence Act since PW-1 was not a part of Plaintiff Company at the time of execution of these documents.
13. The Hon'ble Supreme Court of India in case titled as Thiruvengada Pillai vs Navaneethammal & Anr, AIR 2008 SC 1541, has observed that the party who propounds the document will have to prove it. Original Agreement and Addendum have been alleged to be lost and the Plaintiff has to stand on its own legs to prove its case regardless of the weakness of the defence of the Defendant. It is further noticed that the Principal Agreement/ticketing agreement does not bear signatures of either side. The argument of learned Counsel for Plaintiff that the document was digitally signed is not sustainable as the Ticketing agreement dated 02.08.2018, Ex.PW-1/3, does not bear any digital signatures either.
14. PW-1 also admitted during his cross-examination that ticketing agreement dated 02.08.2018 had not been signed by the parties to the agreement. Therefore, the Plaintiff has failed miserably to prove the Principal Agreement/ticketing agreement dated 02.08.2018. The Addendum Agreement dated 29.01.2019 is addendum to Principal Agreement/ticketing agreement dated 02.08. 2018. Since the Plaintiff has failed to prove execution of Principal Agreement/ticketing agreement NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 17 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:22:32 +0530 dated 02.08.2018, the addendum, which as per clause A on its first page amends the Principal Agreement/ticketing agreement dated 02.08.2018, cannot stand on its own. Further Addendum dated 29 th January 2019 containing different signatures or initials and full signatures of Mr.Abhishek Bagga on different pages make the Plaintiff incapacitated to rely on its terms and conditions and the fact of Addendum containing different signatures or initials and full signatures of Mr. Abhishek Bagga on different pages same has been admitted by PW-1 also during his cross-examination. PW-1 also admitted that addendum agreement dated 29.01.2019 is appended with the stamp paper dated 18.12.2018. The Plaintiff could have at least produced some document containing original signatures of Mr. Abhishek Bagga at the relevant time. PW-1 did not even identify the signatures of Mr. Abhishek Bagga on the Addendum Agreement, nor he made any such deposition in his examination in chief. It is, therefore, held that the Plaintiff has failed to prove execution of Principal Agreement/ticketing agreement dated 02.08.2018 as well as the Addendum Agreement dated 29.01.2019.
15. It is also doubtful if Principal Agreement/ticketing agreement dated 02.08.2018, Addendum Agreement dated 29.01.2019 and other documents have actually been lost. During his cross-examination, PW-1 was put a question:
"Q-6. Whether you are carrying original ticketing agreement and addendum agreement today?
Ans. No."
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:22:39 +0530 CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 18 of 26
16. E-FIR and police complaint in respect of loss of documents mentioned above is stated to have been filed by PW-1. In normal ordinary course of nature and human course of conduct, the answer to cited question would have probably been that original ticketing agreement and addendum agreement have already been lost or that it has already been informed to the court that original ticketing agreement and addendum agreement have been lost and therefore the witness cannot produce them.
17. The said doubt that whether Principal Agreement/ticketing agreement dated 02.08.2018, Addendum Agreement dated 29.01.2019 and other documents have actually been lost is that in police complaint, Ex. PW-1/10 i.e. FIR (Undated), it is mentioned that besides this agreement and addendum, the legal notice dated 19.01.2022 and postal receipt issued to Defendant by Plaintiff have been lost but the Plaintiff has filed the original postal receipt on record along with the office copy of the legal notice dated 19.01.2022 which negates the contents of the alleged police complaint. The Plaintiff would only have office copy of the legal notice as the original legal notice would have been sent to the Defendant. If the Plaintiff had lost the office copy as per E FIR, it could not have filed the office copy of legal notice dated 19.01.2022 and its original postal receipt in the present case since Plaintiff has alleged that the same were lost as mentioned E-FIR, Ex. PW-1/11 by PW-1. But the same have been filed and tendered in examination in chief by PW-1. Plaintiff should have proved the police complaint, Ex.PW-1/10 and E FIR, Ex. PW-1/11 by summoning the relevant witness. NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 19 of 26 Date: 2025.01.04 15:22:46 +0530
18. PW-1 has tendered its statement of account in support of its claim for Rs.79,97,787/- alongwith interest@ 18% p.a. to be recovered from the Defendant. However, as per Section 34 of Evidence Act, the entries in books of account including those maintained in an electronic form regularly kept in the course of business, by a person, alive or dead, are relevant, whenever they refer to a matter into which the court has to enquire. The entries are relevant but are not sufficient without other evidence to prove the debt.
19. Section 34 is an exception to Section 21 of this Act which provides that a person cannot make evidence for himself. Relevancy of books of account is only when:
1. books of account including books in an electronic form regularly kept in course of business. Regular updates of books of account are essential to make them relevant.
2. Entries kept in such books are relevant only relating to matters in issue.
3. Such entries in the books of account alone are not sufficient to charge a person with liability."
20. Where, for example, A sues В for Rs. 1000, and shows entries in his account books showing В to be indebted to him for this amount. The entries are relevant but are not sufficient without other evidence to prove the debt.
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 20 of 26 NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:22:54 +0530
21. Entries in account books regularly kept in the course of business are admissible though they by themselves cannot create any liability.
22. The Hon'ble Supreme Court in Common Cause (A Registered Society) vs. UOI, (2018) 9 SCC 382, observed with regard to evidentiary value that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. The evidentiary value of such entries of account books depends on corroboration by some other evidence in spite of the entries are regularly kept and mentioned by the writer "who has full knowledge, no motive to falsehood, and there is the strongest improbability of untruth." due to section 34, original entries in books of account alone would not be sufficient to charge any person with liability. Books of accounts are relevant persuasive evidence but not conclusive evidence to charge a person with liability.
23. In other words, the entries in the books of account must be supported by other corroborative evidence and such corroborative evidence must have minimum probative value. This corroborating evidence may be in any form like receipts or payment vouchers, invoices or bills of supply, e-way bills, consignment notes, delivery challans or other oral evidence of witnesses having personal knowledge of the CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 21 of 26 NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:23:03 +0530 affairs of the transactions. However, in the present case, Plaintiff has not filed any corroborative material or oral testimony of any other relevant witness in support of Statement of accounts. The Plaintiff company could have produced its bank statement or its own accountant or the officer maintaining the accounts as a witness or some witness from the Bank when it is own case of Plaintiff that the amount of Rs.1,00,00,000/- was paid by the plaintiff company to defendant company in two different transactions of Rs.95,00,000/- via NEFT on 13/02/2019 through UTR no. CMS1035638107 and Rs.5,00,000/- via NEFT on 27/02/2019 through UTR no. CMS1049297730 in Axis Bank account no.918020049031254.
24. In light of these observations, the Plaintiff has failed miserably to prove its claim of Rs.79,97,787/- alongwith interest@ 18% p.a. to be recovered from the Defendant.
25. The other claim of Rs.40,00,000/- against the Defendant towards damages also flows from the Ticketing Agreement as amended by Addendum dated 29.01.2019 the execution of which could not be proved by the Plaintiff. The Plaintiff has also stated that at a later point, the Plaintiff company came to know that the Defendant company has formed a separate entity named "Rapid Reels Private Limited" and running a cinema from the same premises in the name of "Rapid Cinema" whereas the Defendant company has been continuously deceiving the Plaintiff company by giving one reason or the another for not keeping the cinema operational. However, the Plaintiff has not produced anything on record NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 22 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:23:09 +0530 in respect of this submission. The Plaintiff has not even specified the date of acquiring the said knowledge. In absence of any evidence, the submissions of PW-1 in respect of the said submissions is inconsequential being nothing but bald statements. The Plaintiff has, thus, failed to establish its entitlement to recover Rs. 40,00,000 from the Defendant, more so since the Plaintiff has been unable to prove execution of Principal/Ticketing Agreement as well as Addendum Agreement.
26. In the matter of Shri Prem Chandra Jain (Deceased) represented by LRs vs Shri Sri Ram (Deceased) represented by LRs (Supra), it was observed that:
"4. It is only after such evidence has been led can the court form an opinion whether the circumstances/situation in which it is permissible to lead secondary evidence exist or not. For instance, whether a document has been lost or destroyed is a question of fact. It is only after the person claiming so has been cross examined, can a decision be taken as to the existence and loss or destruction of the original.
5. The court, on an application seeking permission to lead secondary evidence, even if setting out reasons as contained in either of the clauses of Section 65, cannot take a decision on the correctness of the reasons. The application thus serves no purpose except delaying the proceedings. It is however often found that the courts allow or disallow the applications, without giving an opportunity to the parties for laying a foundation for reception or rejection of secondary evidence. Such procedure is impermissible in law. Factual controversies cannot be adjudicated on applications. That is however not to be understood as allowing a mini-trial on this aspect. The party seeking to prove document by secondary NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 23 of 26 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:23:16 +0530 evidence is to lead evidence of the existence of circumstances/situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examination of opponents witnesses, in the suit/other proceeding itself. It will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made out or not and if so, whether document stands proved by secondary evidence."
27. Law laid down in Shri Prem Chandra Jain (Deceased) represented by LRs vs Shri Sri Ram (Deceased) represented by LRs (Supra), would have come to the aid of Plaintiff if only the Plaintiff had been able to prove the execution of Principal Agreement/ticketing agreement or the Addendum Agreement thereof, but the Plaintiff has failed to prove the same by way of secondary evidence.
28. The Plaintiff has also relied on the mail dated 22.10.2021 written by the Defendant company to the Plaintiff. The Defendant company vide email dated 22.10.2021 offered to pay Rs.23,00,000/- in January/February 2022 and rest of the amount in proportion of Rs.20,00,000/- each year so as to clear dues of the Plaintiff company. PW-1 has tendered the said mail as Ex. PW-1/6. Ex. PW-1/6 makes no reference to any Ticketing Agreement or Addendum thereof. Further, PW-1 has stated that in response to the proposal, the Plaintiff company accommodated the proposal with a condition that the Defendant company shall give a collateral security in shape of at least postdated cheques to the Plaintiff company for its interest to be secured. The Plaintiff has not filed print out of that mail containing said assertion.
CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 24 of 26NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 15:23:24 +0530 Under section 114 (1) (g) of Evidence Act (Section 119(1) (g) of Bharatiya Saksaya Adhiniyam, 2023), the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. The Plaintiff, in absence of filing the trail mail or the response in whichever mode it was given, cannot rely on Ex. PW-1/6 as an admission, more so when PW-1 has itself stated that the Defendant company not only failed to give any security to the Plaintiff company but also failed to respond to the Plaintiff company emails and request to return its legal dues. Thus, the Plaintiff company specifically made it clear to the Defendant company that it wants entire dues to be cleared on or before 31.03.2022. In Para 25 of the Plaint, the Plaintiff has itself stated that "The cause of action again accrued when the Plaintiff Company turned down the offer of the Defendant Company with respect to payment of outstanding dues over a period of four years." The Plaintiff cannot blow hot and cold by taking contradictory stands regarding mail dated 22.01.2021, Ex. PW-1/6 by itself making a submission that the offer of Defendant by Ex. PW-1/6 was rejected by the Plaintiff. Therefore, the offer, if so made, by the Defendant company was declined/rejected by the Plaintiff company and Plaintiff company cannot rely on the same. Even otherwise, the Plaintiff has not filed anything on record to show that the email ID from which Ex.PW-1/6 is stated to have been sent is the mail ID of the Defendant, like any previous correspondence with Defendant company on the said mail ID from which Ex.PW-1/6 is stated to have been sent to the Plaintiff company. Therefore, the Plaintiff has failed to prove even Ex.PW-1/6.
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 25 of 26 Date: 2025.01.04 15:23:30 +0530
29. In view of the above observations, it is held that Plaintiff has failed miserably to prove its case, and the present case is, therefore, dismissed. No order as to costs.
30. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
Announced in the open 2025.01.04
15:23:37
Court on 04.01.2025
+0530
(Dr. Neera Bharihoke)
District Judge (Commercial Court)-06
South East, Saket Courts, New Delhi
04.01.2025
Certified that this judgment contains 26 pages and each page bears my signatures. Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date: 2025.01.04 15:23:49 +0530 (Dr. Neera Bharihoke) District Judge (Commercial Court)-06 South East, Saket Courts, New Delhi 04.01.2025 CS (Comm) No.1115/22 One97 Communications Ltd. Vs. Bracket Cinemas Private Limited Page 26 of 26