Delhi District Court
M/S. Ds Digital Private Limited vs Shree Vidya Ashram...The ... on 21 August, 2014
CS No. 416/13
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-CENTRAL-09, DELHI.
Civil Suit No.: 416/13.
Unique Case ID No. 02401C0423592013.
M/s. DS Digital Private Limited
Through its C.F.O. Sh. Saurabh Mittal
Having its Registered office at
7361, Ravindra mansion,
Ram Nagar, Qutub Road,
New Delhi-110055. ...............Plaintiff
Versus
Shree Vidya Ashram...The International School
Through Mr. Rakesh pathak,
Principal / Director,
Opp. Power House, Triveni Road,
Shahpura, District Jaipur,
Rajasthan - 303103. ...........Defendant
Date of institution of the suit : 24.08.2013.
Reserved for judgment on : 21.08.2014
Date of pronouncement of judgment : 21.08.2014.
SUIT FOR RECOVERY OF RS.6,24,272/- (RUPEES SIX LAKH
TWENTY FOUR THOUSAND TWO HUNDRED AND SEVENTY TWO
ONLY).
EX-PARTE JUDGMENT
01. The present suit is of recovery for a sum of Rs.6,24,272/-
filed by the plaintiff against the defendant.
02. Brief facts of the case are :-
(a) Plaintiff is joint venture company and Sh. Saurabh Mittal, Chief
Finance Officer, has been authorised to institute and to file the
present suit vide Board Resolution dated 22.03.2013.
(b) Defendant is a private education institution engaged in providing
M/s. DS Digital Private Limited Vs.
Shree Vidya Ashram... The international School Page 1
CS No. 416/13
education and learning to children.
(c) Defendant through Mr. Rakesh Pathak, Principal/Director,
approached the plaintiff on plaintiff's registered office and gave a
purchase order dated 17.01.2011 to the plaintiff for setting up
and to implement interactive learning solutions at Defendant's
school for the period of 5 years i.e. March, 2011 to February 2013
and the payment was to be made by the defendant to the plaintiff
@ Rs.20,000/- along with applicable taxes per month and the
invoices were to be raised monthly and the payment was to be
made within 30 days by the defendant.
(d) The plaintiff completed all its responsibilities and duties and
provided requisite goods and services to the defendant without any
failure or demur and there has been no complaint against the
plaintiff till date.
(e) Defendant has made only one payment till July 2013 which is Rs.
22,066/-. Defendant, thereafter never made any payment to the
plaintiff, due to which a sum of Rs.6,24,272/- became due towards
the defendant till July, 2013.
(f) Plaintiff has several times requested the defendant to clear the
amount but all the requests of the plaintiff fell in deaf ears. Even a
notice dated 20.07.2013 was sent to defendant through its
counsel vide Courier and Registered A.D. However, defendant
has not cleared the payment inspite of the receipt of notice.
03. By order dated 04.03.2014, application moved under Order
5 Rule 20 of CPC moved on behalf of the plaintiff was allowed. By order
dated 28.04.2014 it was observed that defendant was deemed to be
served through publication in newspaper "The Times of India" dated
29.03.2014. None appeared on behalf of the defendant. No written statement has been filed on behalf of the defendant despite service.
M/s. DS Digital Private Limited Vs. Shree Vidya Ashram... The international School Page 2 CS No. 416/13 Defendant was proceeded ex-parte by order dated 24.05.2014.
04. By order dated 24.05.2014 it was observed that plaintiff submitted that during the pendency of the case the plaintiff had changed its name in the ROC from M/s. S. Chand Harcourt (India) Pvt. Ltd. to "DS Digital Private Limited". The copy of ROC showing the changed name and copy of the Memorandum and Articles of Association of DS Digital Private Limited was also filed along with the amended memo of parties and in view of the submissions and documents, request for change name of plaintiff was allowed and amended memo of parties was taken on the record.
05. Plaintiff examined Sh. Ankit Sharma, Finance Officer of the plaintiff as PW-1. He tendered his evidence by way of affidavit Ex.PW-1/1. In support of the claim, he also tendered documents in evidence as Ex.PW1/A to Ex.PW1/D, Ex.PW1/E to Ex.PW1/E-7, Ex.PW1/F, Ex.PW1/G, Ex.PW1/H to Ex.PW1/H-1.
06. Ex.PW1/A(OSR) is copy of the ROC showing the changed name; Ex.PW1/B (OSR) is copy of Memorandum and Articles of Association of DS Digital Private Limited; Ex.PW1/C is Original Board Resolution in favour of PW-1; Ex.PW1/D is purchase order dated 17.01.2011; Ex.PW1/F is copy of sub-ledger; Ex.PW1/G is notice dated 20.07.2013; Ex.PW1/H to Ex.PW1/H-1 are original receipts. Ex.PW1/E to Ex.PW1/E-7 i.e. invoices were de-exhibited being photocopy and marked as Mark-1 to Mark-8.
07. I have heard the arguments as advanced by learned counsel for the plaintiff and have carefully gone through the record of the case.
08. Plaintiff has heavily relied upon Ex.PW1/D i.e. purchase order dated 17.01.2011, Ex.PW1/F i.e. sub-ledger and invoices Ex.PW1/E to Ex.PW1/E-7.
M/s. DS Digital Private Limited Vs. Shree Vidya Ashram... The international School Page 3 CS No. 416/13
09. It is observed that during examination, invoices i.e.Ex.PW1/E to Ex.PW1/E-7 were de-exhibited being photocopies and marked as Mark-1 to Mark-8. Therefore, those invoices are not proved in accordance with the law.
10. Ex.PW1/D i.e. purchase order is perused. At second page of Ex.PW1/D it is mentioned:
"Payment Terms:
• The invoices would be raised monthly
payable within 30 days
• Post dated Cheque for the first year are to be
provided by the school on the agreed
amount."
11. Thus, it is clear that it was agreed that invoices would be raised monthly payable within 30 days. However, perusal of statement of account and invoices show that invoices/bills were raised quarterly. Why bills/invoices were not raised monthly as agreed in the purchase order is not explained. If the payments were not made within 30 days of raising bills then why plaintiff did not send any communication to the defendant immediately and only had sent a notice dated 20.07.2013 i.e. after more than passing of more than 2 ½ years, is not explained. It was also agreed that PDCs were to be provided for the first year by the plaintiff. However, there is no mention in the plaint whether those post date cheques were provided by the defendant to the plaintiff or not or whether those cheques were dishonored on presentation, is not explained. However, in Ex.PW/1 in para 8, it is stated that the cheque of Rs.22,066/- given by the defendant as part payment, was dishonored. If the cheques as mentioned and agreed in the purchase order/Ex.PW1/D were not given by the defendant to the plaintiff, then why plaintiff agreed M/s. DS Digital Private Limited Vs. Shree Vidya Ashram... The international School Page 4 CS No. 416/13 to and provided services to the defendant, is not explained.
12. At second page of Ex.PW1/D it is further mentioned:
"Other Terms and Conditions of the Purchase Order:
d) Termination of the order only at the end of the Academic Year and not in between.
Full year charges will be payable in case terminated in between. In case of termination, the hardware would be purchased by the school and balance installments of hardware will be paid by the school on termination."
13. Thus, it was agreed that order could be terminated at the end of the Academic Year or in between. Purchase order is of dated 17.01.2011 whereas first bill was raised on 01.04.2011 and last bill was raised on 01.10.2012. Notice sent to the defendant is of dated 20.07.2013. Thus, plaintiff provided his services to the defendant for more than 2 ½ years. It is case of the plaintiff that defendant made only one payment of Rs.20,000/- which was dishonored on 08.04.2011, as per Sub-ledger. Thus, when on 08.04.2011, plaintiff had the knowledge that the only payment given by the defendant through cheque was dishonored then why plaintiff continued to provide his services despite non payment for more than 2 ½ years despite the fact that he could very well terminate the purchase order at the end of the Academic Year or in between as agreed in the Purchase Order, is not explained.
14. At second page of Ex.PW1/D it is further mentioned:
"Other Terms and Conditions of the Purchase Order:
g) A copyright licensing agreement
M/s. DS Digital Private Limited Vs.
Shree Vidya Ashram... The international School Page 5
CS No. 416/13
would be signed between the school and SCH.
15. It is case of the plaintiff that plaintiff set up and implemented interactive learning solutions at defendant's school and completed all its responsibilities/duties and provided requisite goods and services to the defendant and also raised invoices. Except sub-ledger or invoices (which were de-exhibited being photocopies) there is no specific document to show that plaintiff had actually given such services to the defendant as per purchase order dated 17.01.2011 as there is no receipt / acknowledgment, compliance report or completion report issued from the defendant by which plaintiff could show that any part of the purchase order was done on behalf of the plaintiff. Moreover, It was agreed in the purchase order dated 17.01.2011 that a copyright licensing agreement would be signed between the school and SCH (i.e. S. Chand Harcourt (India) Pvt. Ltd.). However, no such documents has been brought on the record. If the said copyright licensing agreement was executed then why the same is not brought on the record, is not explained. If the same was not executed then why the plaintiff provided the services to the defendant is also un-explained. Thus, plaintiff is not able to prove that plaintiff provided the services to the defendant as per agreed terms as mentioned in Ex.PW1/D i.e.purchase order dated 17.01.2011 in accordance with the law.
16. Plaintiff has also relied upon Ex.PW1/F i.e. sub ledger maintained by the plaintiff. Same is perused. Same is computer generated on 08.05.2014 for the period from 01.04.2011 to 31.05.2015. Thus, admittedly, as per sub-ledger there are no bills/invoices after 01.10.2012. In Ex.PW1/G i.e.legal notice dated 20.07.2013 defendant has claimed Rs.6,24,272/- from the defendant. In prayer clause of plaint also plaintiff has claimed Rs.6,24,272/-. However, Ex.PW1/F i.e. sub ledger shows outstanding of Rs.4,89,034/- only. How plaintiff has M/s. DS Digital Private Limited Vs. Shree Vidya Ashram... The international School Page 6 CS No. 416/13 calculated and came to Rs.6,24,272/- instead of Rs.4,89,034/-(as mentioned in the sub ledger) is not explained by the plaintiff.
17. Moreover, Ex.PW1/F is based upon invoices/bills which have already been de-exhibited by ld. counsel for the plaintiff during examination in chief. Thus, statement of account which is based upon the invoices/bills can not be relied upon.
18. Thus, in view of the findings made herein-above, this court is of the considered opinion that plaintiff has not been able to prove its case and therefore, plaintiff is not entitled for decree as prayed.
19. Thus, in view of the observations made herein, the present suit is dismissed. There is no order of costs.
20.. Decree Sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 21.08.2014 (Jitendra Kumar Mishra) ADJ/Central-09, Tis Hazari Courts, Delhi 21.08.2014 M/s. DS Digital Private Limited Vs. Shree Vidya Ashram... The international School Page 7 CS No. 416/13 Civil Suit No.: 416/13 21.08.2014 Present: Sh. Rajesh Kumar, ld. counsel for the plaintiff.
Defendant is already ex-parte.
Arguments on clarifications heard.
Now to come up for order/judgment at 04:00 p.m. (Jitendra Kumar Mishra) ADJ/Central-09, Tis Hazari Courts, Delhi 21.08.2014 At 04:30 p.m. Present: None for the plaintiff.
Defendant is already ex-parte.
Vide separate judgment announced in the open court today, the present suit is dismissed. There is no order of costs.
Decree Sheet be prepared accordingly.
File be consigned to record room.
(Jitendra Kumar Mishra) ADJ/Central-09, Tis Hazari Courts, Delhi 21.08.2014 M/s. DS Digital Private Limited Vs. Shree Vidya Ashram... The international School Page 8