Delhi District Court
Advance Epc Contracts Pvt Ltd vs Prolite Autoglo Limited on 3 April, 2025
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-11 CENTRAL, THC, DELHI
CS Comm. No.3451/2021
Advance EPC Contracts Pvt. Ltd.
Having its regd. Office at:
239, Vivekanand Puri, Sarai
Rohilla, New Delhi-110007
..............Plaintiff
Vs.
M/s Prolite Autoglo Limited
Having its Regd. Office at:
24-27, Singh Industrial Estate No.3,
Ram Mandir Road, Goregaon (West),
Mumbai-400104 ..........Defendant
Date of Institution : 18.09.2021
Date of Final Arguments : 03.04.2025
Date of Judgment : 03.04.2025
Decision : Dismissed
Judgment
1.This suit is filed by plaintiff company for recovery of Rs. 12,50,640/-
alongwith interest@18% per annum for refund of the payment qua the supply of defective goods.
Case of the Plaintiff
2. Case of the plaintiff as per amended plaint and the documents filed is that plaintiff is a duly incorporated company however no certificate of incorporation is filed. It is pleaded that plaintiff is in the business of supply and installation of electrical products and has a good reputation for its quality products and services. Defendant is said to be a duly incoroporated public limited company at Goregaon, Mumbai and is in the business of manufacturing lights, signages, solar products etc. In the CS Comm No.3451/2021 page 1 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited course of business defendant approached the plaintiff for sale of 20W LED wall mounted emergency light fitting with 3 hours backup. Upon negotiation defendant agreed to supply the goods to plaintiff as per purchase order of plaintiff dated 19.02.2019 which carried the terms of sale. The details of the goods supplied were incorporated in the invoice dated 27.02.2019 worth Rs.10,00,640/-.
3. It is pleaded that the purchase order carried a specific clause at Sr. No. 14 according to which the products are supposed to carry 18 months guarantee from the date of delivery or 12 months from the date of commissioning. But still in the catalogue a warranty period of 6 months was mentioned by the defendant and as such according to the plaintiff defendant company cheated it. It is pleaded that in this manner defendant company cheated the plaintiff by supplying inferior products which had only 6 months warranty instead of 18 months asked for in the purchase order. It is interesting to observe here that plaintiff is casually using the word guarantee and warranty in the body of the plaint as interchangeable terms.
4. It is pleaded that while the sample shown for trial purposes carried a battery of make 'SUPERPOWER' but the material supplied had batteries of make 'UPLUS'. Plaintiff has called this change as arbitary and against the terms of contract. However, it is observed that there is no such reference in purchase order. Likewise, it is pleaded that the product was supposed to be IS-9583 Standard as per Bureau of India Standards for such products but again admittedly there is no reference of any BIS Standard in the purchase order.
5. It is pleaded that the goods supplied by the defendant were very poor in quality. It is pleaded that defendant gave a test certificate of the products which, to the plaintiff, appeared to be a fabricated one. It is pointed out CS Comm No.3451/2021 page 2 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited that the defendant did not carry out operation testing at the site and this indicates poor aftersales service which led to damage to the equipment. Again this plea does not find any reflection in the purchase order. It is pointed out that after 5-6 months of the delivery or commissionining of the 265 emergency lights purchased from the defendant they became defective. Plaintiff requested the defendant to replace the same with new emergency bulb/lights as they were within the guarantee period but still the defective lights were not replaced.
6. It is case of the plaintiff that defendant was not inclined either to replace the lights or to return their price and as such plaintiff is entitled to damages from the defendant company. Consequently, plaintiff was constrained to issue legal notice on 22.02.2020 for the same which was replied by the defendant on 11.03.2020 denying the contents of the plaintiff's notice and refusing to make any payment. It is stated that plaintiff was constrained to visit Goa and incurred expenditure in travel and stay to the tune of Rs.2.50 lakhs. The plaint is totally silent as to why the plaintiff was travelling to Goa when the defendant hails from Mumbai. In this backdrop, plaintiff has calculated the damages of Rs.12,50,640/-. No separate breakup of this amount has been provided except the fact that it include the entire invoice value of Rs.10,00,640/- and the claimed expenditure of Rs.2.50 lakhs purportedly incurred by plaintiff. Although the plaint is silent but Plaintiff claims to have approached Central DLSA for Pre-Institution Mediation under Section 12A of Commercial Courts Act, 2015 where defendant did not participate despite repeated service of notices and Non-Starter Report dated 05.02.2021. This conduct of defendant, a public ltd. Company, is not appreciated more so when pre- institution mediation is mandatory. In this backdrop suit in hand is filed for following reliefs:
CS Comm No.3451/2021 page 3 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited Prayer:
i. Pass a decree in favour of plaintiff and against the defendant for the recovery of Rs.12,50,460/- alongwith interest @18% p.a. from the date of filing of the suit till its realization;
ii. Award of the cost of the suit in favour of the plaintiff and against the defendant; iii. Pass such further orders or direction or relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also be passed in favour of the Plaintiff and against the Defendant.
7. Summons of the suit was served upon the defendant who entered appearance on 03.01.2022 through Sh. Peeyush Purohit, Advocate. There was a delay in filing of WS which was condoned by Ld. Predecessor.
Defendant's Case
8. Case of the defendant as per WS is that the suit in hand deserves to be dismissed as no cause of action took place in Delhi. The contract was entred at Mumbai office of defendant where plaintiff had sent the purchase order. It is pleaded that the contract was executed at Mumbai and all the invoices carried endorsement of "subject to Mumbai Jurisdiction". Dismissal of the suit is also prayed on the ground that plaintiff has not approached this Court with clean hands as the goods sold by defendant subjected to improper handling.
9. It is pleaded that even though the emergency lights needed constant/uninterrupted power supply but defendants continued to switch on and off the supply of lights which damages the chemical composition of the batteries and this fact was concealed from the Court. It is pleaded that the catalogue of the products does not carry any reference of warranty or guarantee.
10.In his reply on merits, the defendant company accepted that both the plaintiff and defendant are in the electrical business. It is denied that defendant approached plaintiff for sale of material but rather it is the plaintiff who approached the defendant, a leading manufacturer of CS Comm No.3451/2021 page 4 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited emergency lights. It is pleaded that before issuance of purchase order dated 19.02.2019 plaintiff issued a quotation dated 05.02.2019 to the plaintiff but this document is not mentioned in the plaint. It is not denied that the defendant sold 265 lights to the plaintiff vide invoice dated 27.02.2019 valued Rs.10,00,640/- but defendant maintains that upon negotiations, plaintiff was informed in advance through the quotation letter dated 05.02.2019 that plaintiff would provide warranty of 6 months only on manufacturing defects which will not cover LEDs, lamps and bulbs. There is a reference of email sent by defendant to the plaintiff on 20.02.2019 after issuance of purchase order dated 19.02.2019 that the above warranty of 6 months will be extended to 12 months but not 18 months. However, the plaint has no reference of this email.
11.It is pleaded that in the WS that in case the plaintiff was not agreeable to 12 months warranty, it should have refused to carry out the purchase. It is pointed out that the warranty of 6 months referred to by the plaintiff in the plaint is a false statement and has been culled out from the defendant's website while the factum of defendant extending 12 months warranty has been concealed. The fact that plaintiff concealed the factum of defendant extending 12 months warranty was concealed from the plaint as also the 2 documents i.e. quotation dated 05.02.2019 and email dated 20.02.2019 is sufficient to initiate perjury proceedings against the plaintiff company and its AR Mr. Surinder Kumar Sawhney as it violate para 4 and 5 of the affidavit of statement of truth.
12.It is further pointed out that it is the post issuance of defendant's email dated 20.02.2019 where warranty period was extended to 12 months and part payment was made by plaintiff on 22.02.2019. Defendant has denied that they ever promised to provide battery of a particular make/brand as CS Comm No.3451/2021 page 5 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited there was no such agreement and hence it cannot be said to be a breach of contract between parties.
13.As far as plaintiff's plea that the products were supposed to IS-9583 Standard, the WS to this corresponding para no. 9 does not specifically denies this plea and simply and evasively states "the defendant supplied all items confirming the standards". It is pleaded that the plaintiff's stance that the 265 units sold by the defendant should have been tested upon operation at the site is something which has been introduced only to make out this case and was never raised at any point of time before issuance of legal notice. As regards the plea that the products started having defects within 5-6 months of commissioning it is reiterated that it is on account of imporper handling and lack of 24*7 power supply which led to the damage. It is pointed out that upon asking of plaintiff service was provided on 12.07.2019 through defendant's technician and as per service report they were checked and found to be "Ok". This service report was signed by defendant's technician and one Vipin Sharma on behalf of plaintiff. It is surprising to find that even this document was not mentioned by the plaintiff in the plaint and existence of this document was not denied by the plaintiff as neither any replication nor any affidavit of admission denial has been filed by the plaintiff to defendant's documents. Receipt of legal notice is admitted which was duly replied. With these pleas dismissal of suit has been prayed.
14.In its affidavit of admission denial filed by the defendant to the documents filed by the plaintiff it has accepted the tax invoice and receipt of legal notice.
Replication
15.No replication has been filed by plaintiff and as such averments and additional facts disclosed by the defendant in the WS have remained CS Comm No.3451/2021 page 6 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited unrebutted and uncontroverted and consequence under newly added proviso to Order 8 Rule 5 CPC. Since no affidavit of admission denial filed by plaintiff for defendant's documents consequences under Order 11 Rule 4 (3) and (5) CPC shall visit the plaintiff.
16. Out of the pleadings following issues were identified by Ld. Predecessor on 23.04.2024 apart from identification of two additional issues on 17.05.2024:
Issues:
1. Whether this Court has no territorial jurisdiction to try the present suit?
OPD
2. Whether 265 Emergency Lights PEL LED NM, as supplied to the plaintiff, vide Invoice No. 3903 dated 27.02.2019, pursuant to purchase order No. AECP / PAL / GSL / 82 dated 19.02.2019, were substandard and inferior and did not confirm to clauses of IS-9583? OPP
3. Whether the defendant provided the batteries of the make 'UPLUS' instead of the batteries of the make 'SUPERPOWER', as used during trial at the site? OPP
4. Whether the defendant provided poor after sales service to the plaintiff and thus, the equipments suffered damage? OPP
5. Whether the catalogue, as referred in Para No. 6 of the plaint is not the actual catalogue of the products, as stated in Para No. 6 of the para-wise reply of the written statement? OPD
6. Whether the warranty period of the emergency lights was 18 months from the date of delivery or 12 months from the date of commissioning, as stated in Clause 14 of the purchase order, or 06 months as mentioned in the catalogue or 12 months, as stated in Para No. 6 of para-wise reply of the written statement, if so, its effect? OPP
7. Whether the plaintiff installed a plug and on / off switch in between causing interruption of constant power supply and caused damage to chemical composition of the battery? OPD
8. Whether the defendant failed to replace or supply new emergency bulbs / lights to the plaintiff despite several requests and correspondence? OPP
9. Whether the plaintiff is entitled to a decree for recovery of Rs. 10,00,640/- being the price of the material purchased from the defendant? OPP
10. Whether the plaintiff had to make visits to Goa and incurred financial expenditure in the sum of Rs. 2,50,000/- on account of travel expenses and holding of related payments? OPP CS Comm No.3451/2021 page 7 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited
11. Whether the plaintiff is entitled to receive interest @ 18% for pendente- lite and future interest? OPP
12. Whether the plaintiff is entitled to cost of present suit? OPP
13. Relief.
Additional issues dated 17.05.2024
14. Whether on account of failure and in absence of 'Affidavit of Admission / Denial of Documents' by plaintiff in respect of documents submitted by the defendant instant suit is maintainable per se?OPD
15. Whether the plaintiff installed, operated and use the 'sold goods' (20W LED Wall Mounted / Suspended Non Maintained 3 Hrs in-built Battery backup Emergency Light Fitting) as per the instructions given by technicians of defendant company (of uninterrupted power supply) and as per the specifications of the actual catalogue made available by the defendants? OPD
16. Whether the electricity circuit used by the plaintiff, for the supply of the electricity to self maintained emergency lights (the goods) with plug and switch in between, causing interruption of current, caused chemical imbalance in the batteries of the goods and resultantly damaged the batteries? OPD Evidence
17. Evidence in this case was ordered to be recorded before Ld. LC Ms. Neha Bhardwaj, Advocate for recording of evidence as per protocol created by this Court under Order 18 Rule 4 CPC read with Order 15A Rule 6(l) CPC as applicable to Commercial suits for the sake of timely disposal of this case.
Plaintiff's Evidence
18. To prove its case plaintiff examined its AR PW1 Mukesh Kumar. Vide affidavit Ex.PW1/A he deposed on the lines of plaint and exhibited following documents:
i. Copy of Board Resolution dated 17.10.2022 is Ex.PW1/1; ii. Copy of GST Certificate of Incorporation is Ex.PW1/2; iii. Copy of Purchase Order dated 19.02.2019 is Ex.PW1/3; iv. Copy of Invoice dated 27.02.2019 is Ex.PW1/4; v. Copy of Bank Statement showing payment to the defendant is Ex.PW1/5; vi. Copy of Fitting of Goods is Ex.PW1/6;
CS Comm No.3451/2021 page 8 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited vii. Copy of various E-mails exchanged between the plaintiff and the defendant is Ex.PW1/7 (Colly.);
viii.Copy of Legal Demand Notice dated 22.02.2020 is Ex.PW1/8; ix. Postal Receipts is Ex.PW1/9.
19.in his cross-examination carried out by Ld. Counsel for defendant Mr. Peeyush Purohit PW1 stated that he is HR/Manager for the plaintiff company and is serving for more than four years. He accepted that he has no personal knowledge in the matter. He admitted that the email Ids [email protected] and [email protected] belong to the plaintiff company. He never visited the plaintiff's project site at Goa and is as such not aware as to how and where the emergency lights were installed. After perusing the copy of the purchase order Ex.PW1/3 the witness stated that none from the plaintiff's side signed this purchase order dated 19.02.2019 since it was a digital document and as a matter of practice they do not sign it. He claimed that if the company to which the purchase orders were issued do not deny the same within a week it is presumed that it's automatically stands accepted. Perusal of this document shows that at Sr. no. 13 this fact is mentioned therein.
20.It is pertinent to observe here that this purchase order dated 19.02.2019 was responded to by the defendant vide email dated 20.02.2020 whereby out of 14 clauses mentioned by the plaintiff only one clause i.e. Clause 14 was objected to to the effect that as against plaintiff's requirement of guarantee of 18 months from the date of delivery or 12 months from the date of commissioning, defendant offered a 12 month warranty.
21.The witness accepted that his predecessor Mr. Sawhney who was handling the project for the plaintiff had accepted in his email dated 10.02.2020 that there was a plug and switch installed with most of the emergency lights but added that it was not operated because (electric) supply at the project site was good. The witness accepted that he is not aware as to how many times plaintiff raised service complaints or defendant's engineers CS Comm No.3451/2021 page 9 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited visited the project site. He also accepted that no document has been filed on record to show that batteries of a particular make were agreed to be installed in the emergency light supplied. He admitted that 30% of the advance amount were deposited by the plaintiff on 21.02.2019 and this fact was shared by the plaintiff with the defendant vide email dated 22.02.2019. He also accepted that he is not aware about the particulars as to how emergency lights were supposed to be installed and if any on/off switch or plug were to be installed with them. He also accepted that nothing has been filed on record by the plaintiff to show that all the 265 units of lights supplied by the defendant got damaged. He also accepted that the copy of the catalogue filed by the plaintiff on record is the one which is downloaded from defendant's website and is different from the catalogue filed by the defendant alongwith the WS.
22.On the other hand defendant examined DW1 Ramesh Vadgama, its Accounts Manager. Vide affidavit Ex.DW1/A he deposed on the lines of WS and exhibited following documents:
i. Copy of Board Resolution dated 08.05.2024 is Ex.DW1/1; ii. Quotation dated 05.02.2019 is Mark-A;
iii. Copy of Technical Data Sheet Page no.14 of WS of the defendant, Annexure-4 is Ex.DW1/2;
iv. Copy of Email dated 22.02.2019 and 22.02.2019 Annexure-R2/R2 is Ex.DW1/3 and Ex.DW1/4;
v. Copy of Service Record prepared by technician of defendant company dated 12.07.2019 Page No. 17/18 of WS of the defendant is Ex.DW1/5;
vi. Certificate under Section 65-B of Indian Evidence Act is Ex.DW1/6.
23.In his cross-examination done by Ld. Counsel for plaintiff he stated that he is serving with defendant company since 2004 and is conversant with the facts. He accepted the suggestion of the plaintiff that defendant company did not approach the plaintiff for sale of goods even though as per plaint it is contended that it is the defendant company which approached the plaintiff for sale of lights. He referred to a quotation dated 05.02.2019 issued for sale of 250 emergency lights. He accepted that in CS Comm No.3451/2021 page 10 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited the quotation there is a reference of six months warranty from the date of supply against manufacturing defects except LED lamps and bulbs. As per him the plaintiff company accepted the defendant's quotation before issuing the purchase order dated 19.02.2019 for 265 lights. The purchase order Ex.PW1/3 was received by an email. The witness could not identify the purported signatures visible on the purchase order to a signature from any person from his defendant company. He added that the purchase order was duly accepted by the defendant, however, it was restricted towards quantity and rate. He also accepted that the products were dispatched only after receipt of 100% advance. He denied the suggestion that defendant had offered 18 months warranty from the date of delivery or 12 months warranty from the date of commissioning of lights.
24.As per him the first complaint was received after 11 months of sale qua 30 pieces. He added that according to the report of the technician who visited the site the lights were not connected to any direct and uninterrupted power supply which is necessary for proper functioning of the lights. He accepted that plaintiff made a request to the defendant to replace all the lights. He denied that light supplied were not as per descriptions agreed between the parties. He denied that the batteries of the 10 emergency lights were defective and for this reason only they were replaced. He denied defendant's liability to pay any money to the plaintiff.
25.I have heard arguments of Sh. Ankit Kumar, Ld. Counsel for plaintiff and Sh. Peeyush Purohit, Ld. Counsel for defendant and have perused the case file carefully.
26. Now I shall dispose of individual issues framed in this case.
Issue No. 1:
1. Whether this Court has no territorial jurisdiction to try the present suit?
OPD CS Comm No.3451/2021 page 11 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited
27.As far as objection qua territorial jurisdiction is concerned, an application under Order 7 Rule 11 CPC on this aspect was dismissed by Ld. Predecessor vide detailed order dated 22.08.2023. This order has not been challenged by the defendant before Commercial Appellate Division of Hon'ble High Court of Delhi. Admittedly, no additional material has been brought on record in support of the objection that this Court has no territorial jurisdiction to try this suit. Consequently, this issue is answered in favour of plaintiff and against the defendant.
Issue no. 2 and 7:
2. Whether 265 Emergency Lights PEL LED NM, as supplied to the plaintiff, vide Invoice No. 3903 dated 27.02.2019, pursuant to purchase order No. AECP / PAL / GSL / 82 dated 19.02.2019, were substandard and inferior and did not confirm to clauses of IS-9583? OPP
7. Whether the plaintiff installed a plug and on / off switch in between causing interruption of constant power supply and caused damage to chemical composition of the battery? OPD
28.Before resorting to decide the above issues, it would be appropriate to cull out the facts admitted by both the sides not only during pleadings but as well as during the course of trial but also during final arguments. It is admitted case of both the sides that they are duly incorporated private ltd. companies. While defendant is manufacturer of electrical lights and products, plaintiff is in the business of supply and installation of lights. It is admitted that upon deliberations defendant agreed to sell and supply 265 emergency lights to the plaintiff for a sum of Rs.10,00,640/- vide invoice dated 27.02.2019. defendant has not denied receipt of purchase order Ex.PW1/3 dated 19.02.2019. It is not disputed that all the 265 lights were supplied by the defendant upon receipt of 100% advance payments. Several emails exchanged between the parties which have been filed both the plaintiff as well as defendant on record to have not been denied.
CS Comm No.3451/2021 page 12 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited
29.The differences which have arisen between the parties in the dispute in hand are as to which party approached the other first and as to what were the terms which were agreed between them before the admitted sale and supply of emergency lights. While according to plaintiff plaintiff's pleaded case it is the defendant company which approached the plaintiff for sale of emergency lights but the plaint is silent as to how the defendant company approached the plaintiff i.e. either through a sales person or by issuing an email or through any other mode of communication. Defendant has maintained in the WS that it was the plaintiff which approached the defendant company for purchase of initially 250 emergency lights. This fact has been admitted by DW1 in his cross-examination wherein he was suggested by Ld. Counsel for plaintiff that it is the plaintiff company which approached the defendant for purchase of emergency lights. This witness added that it is plaintiff company which approached the defendant telephonically. As such it is found that the plaintiff's plea that defendant approached plaintiff for sale of lights is not a correct plea in the plaint.
30.As regards the terms and conditions of sale is concerned, according to the plaint, upon negotiations, the first document generated was purchase order Ex.PW1/3 dated 19.02.2019 which as per plaint contained all the terms and conditions. This stand of the plaintiff is factually incorrect in so far as upon conclusion of telephonic negotiations the first document generated with regard to the transaction in hand was a detailed quotation dated 05.02.2019 Mark A. In so far as the document issued by the defendant, it ought to have been exhibtied by DW1 but was perhaps given a Mark on account of objection by Ld. Counsel for plaintiff. But it is pertinent to mention here that despite being given an opportunity the plaintiff has failed to submit an affidavit of admission and denial qua defendant's documents as mandated under Order 11 Rule 4 (2) CPC. Due to this CS Comm No.3451/2021 page 13 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited consequences as per Order 11 Rule 4 (6) and (7) CPC deserves to visit the plaintiff. For ready reference the same is reproduced as under:
Order 11 Rule 4 CPC : Admission and denial of documents (1) Each party shall submit a statement of admissions and denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court. (2) The statement of admissions and denials shall set out explicitly, whether such party was admitting or denying:-
(i) correctness of contents of a document;
(ii) existence of a document;
(iii) execution of a document;
(iv) issuance or receipt of a document;
(v) custody of a document...........
Explanation: A statement of admission or denial of the existence of a document made in accordance with sub-rule (2) shall include the admission or denial of the contents of a document.
(3) Each party shall set out reasons for denying a document under any of the above grounds and bare and unsupported denials shall not be deemed to be denials of a document and proof of such documents may then be dispensed with at the discretion of the Court.
(4) Any party may however submit bare denials for the third party documents of which the party denying does not have any personal knowledge of and to which the party denying is not a party to in any manner whatsoever.
(5) An affidvit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement. (6) In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria, - costs including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party. (7) The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents."
(Emphasis Supplied)
31.Not only plaintiff is found to have concealed the factum of issuance of above quotation by defendant to the plaintiff but has also concealed the issuance of email Ex.DW1/3 dated 20.02.2019 whereby the defendant has expressed its disagreement to Clause 14 of the purchase order whereby plaintiff demanded 18 months guarantee from the date of sale and 12 CS Comm No.3451/2021 page 14 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited months guarantee from the date of installation and has rather offered that the defendant would provide only 12 months warranty against manufacturing defects which does not include LED bulbs. Admittedly, this email of defendant dated 20.02.2019 was not objected to or responded by the plaintiff by reiteration of their need of 18 months guarantee and plaintiff quitely proceeded to deposit 30% of the purchase amount on 21.02.2019 followed by deposit of remainder 70% as well in advance.
32.Another important aspect which is concealed by the plaintiff is that upon receipt of complaints from the plaintiff, the defendant had sent its technicians who had prepared detailed report Ex.PW1/5 dated 12.07.2019 and had handed it over to the plaintiff. In this report a very important factor is mentioned i.e. none of the lights installed by the plaintiff at the site was provided 24*7 uninterrupted power supply. Rather on/off switch were installed for each light which apparently shows that they were to be used for breaking the power supply at will.
33.The manner in which these pertinent facts are concealed, goes to the root of the matter. It is a settled legal proposition that any litigant which approaches the Court must approach with clean hands and shall not conceal any material fact or document. Such is the relevance of parties approaching the Courts with clean hands that Parliament in its wisdom rechristed the affidavit to "statement of truth" and para 4 and 5 of the same reads as under:
4. I say that there is no false statement or the concealment of any material fact, document or record and I have included information that is according to me, relevant for the present suit.
5. I say that all documents in my power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the plaint, and that I do not have any other documents in my power, possession, control and custody.
(Emphasis Supplied) CS Comm No.3451/2021 page 15 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited
34.Having submitted in affidavit in the Court that there is no concealment of material fact or document and all documents in power, possession and custody of plaintiff have been disclosed and filed, plaintiff has ex-facie committed the offence akin to perjury.
35.As far as issue no. 2 is concerned, the onus is placed on plaintiff to substantiate that the 265 emergency lights sold and supplied by the defendant were sub-standard and inferior and did not conform IS-9583 standards. Admittedly, nothing has been placed on record to show what are IS-9583 standards and how the goods supplied by the defendant do not tally with them. Even the purchase order does not carry any reference or mention of IS-9583 standards and all that is stated is ISI standard. On the contrary, attention of this Court is drawn by Ld. Counsel for defendant to document Ex.DW1/2 which opens with a declaration that the products supplied conforms IS-9583-1981. It is argued that none of the products of the defendant is without IS standardisation. As such plaintiff has failed to substantiate as to how the products supplied were not according to IS- 9583.
36.As regards the plea that the 265 emergency lights were sub-standard and inferior, admittedly, no third party expert report has been obtained to show that the goods sold and supplied were of substandard or inferior quality. Reference is made to document Ex.DW1/5 which is service report of defendant's techncian where it is mentioned that as on 12.07.2019, 30 lights were found not working. The term "not working" does not ipso facto means that the goods supplied were of inferior quality or were sub- standard and reason for "not working" of a light can be due to mishandling/improper handling. It is argued by Ld. Counsel for defendant that all the products sold and supplied carried a printed installation note and one such note was confroned to PW1 during his cross-examination CS Comm No.3451/2021 page 16 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited which is exhibited as Ex.DW1/PW1 and the design shows that a non- maintained emergency light needs to be connected to a live electrical feed and not through a on/off switch through a 2-3 pin socket. It is argued that unless such lights are provided 24*7 supply, their batteries will not get optimally charged so as to provide the requisite results.
37.This plea is opposed by Ld. Counsel for plaintiff by referring to technician's report Ex.DW1/5 which on first page shows that the light was on continuous charging for a period of 24 hours. However, copy of this report also carries a reference that instead of maintainig a direct connection with the direct electrical power supply as mandated for such non-maintained emergency lights a two pin code was used with on/off switch.
38.Reference is sought to be made to a similar service report dated 27.02.2020 to show that after the new batteries were replaced and they were given full cycle of charge the charge continued for requisite 4 hours 17 months however this document has not been exhibited on record. Be that as it may, the onus of proving that the emergency lights were defective and inferior is on plaintiffand on the basis of material available on record and the fact that the lights were not installed as per instructions provided, the non-performance of certain lights cannot be attributed to manufacturing defects. This issue is answered against the plaintiff and in favour of defendant.
Issue no. 3:
3. Whether the defendant provided the batteries of the make 'UPLUS' instead of the batteries of the make 'SUPERPOWER', as used during trial at the site? OPP
39.In this regard it is argued by Ld. Counsel for plaintiff that as per plaintiff's understanding defendant was supposed to supply emergency lights with CS Comm No.3451/2021 page 17 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited batteries of the brand "SUPERPOWER" but the 265 lights supplied were having batteries of the brand "UPLUS". The plaint and affidavit-in-chief of the plaintiff carries a reference that the original fittings of 10 lights which were installed on trial basis carried the battery by the brandname "SUPERPOWER" but the lights supplied were arbitorily changed without plaintiff's permission to brand "UPLUS". This contention of plaintiff in para 8 has been evasively denied by the defendant in the written statement which is not in consonance with Order 8 Rule 3A CPC, as applicable for Commercial Courts. Be that as it may, it is not the case of the plaintiff that in the purchase order plaintiff ever demanded the emergency lights with batteries of "SUPERPOWER" make or that defendant at any point of time assured that batteries of "SUPERPOWER" make alone would be supplied in the lights.
40.As discussed supra, there was an overall warranty of 12 months against manufacturing defects and this covered even the batteries irrespective of the brand used. Admittedly, in neither of the emails communications exchanged between the parrties the plaintiff ever raised the issue of supply of "UPLUS" batteries as against batteries of make "SUPERPOWER". Nothing has been placed or proved on record from the side of plaintiff to show that batteries of "UPLUS" make were in any manner inferior or cheaper than batteries of "SUPERPOWER" make. As such change of brandname of these batteries is absolutely inconsequential and is of no avail to the plaintiff. Issue answered accordingly.
Issue no. 4:
4. Whether the defendant provided poor after sales service to the plaintiff and thus, the equipments suffered damage? OPP
41.The manner in which this issue is casted indicates that the emergency lights suffered damage just because the defendant did nto provide CS Comm No.3451/2021 page 18 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited adequate aftersale service. As discussed at length hereinabove while deciding issue no. 2 it has already been concluded that the batteries malfunctioned because of incorrect wiring and apparent non-supply of 24*7 direct light consequent upon installing a on/off switch through a 2 pin plug/socket. There are at least two instances of plaintiff making complaint to the defendant and defendant responding by sending their technicians for addressing the plaintiff's concerns including replacement of 10 batteries so as to show that the emergency lights would work properly if the batteries are charged as per electrical connections mandated in the installation manual. As such it cannot be said that defendant did not provide after sale service. Accordingly this issue is answered against the plaintiff and in favour of defendant.
Issue no. 5 and 6:
5. Whether the catalogue, as referred in Para No. 6 of the plaint is not the actual catalogue of the products, as stated in Para No. 6 of the para-wise reply of the written statement? OPD
6. Whether the warranty period of the emergency lights was 18 months from the date of delivery or 12 months from the date of commissioning, as stated in Clause 14 of the purchase order, or 06 months as mentioned in the catalogue or 12 months, as stated in Para No. 6 of para-wise reply of the written statement, if so, its effect? OPP
42.It is accepted by Ld. Counsel for plaintiff that the catalogue filed with the plaint does not pertain to particular model of the emergency lights purchased and has been downloaded from the defendant's website. It was projected as if it was the defendant company which provided this catalogue and the fact that it was downloaded from defendant's website was a false statement. The correct catalogue which was supplied by defendant's salesperson to the plaintiff Ex.DW1/2 was not filed by the plaintiff on record with the plaint. As discussed supra, as against the plaintiff's claim that defendant provided only 6 months guarantee. The CS Comm No.3451/2021 page 19 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited factum of defendant actually providing 12 months warranty as per email dated 20.02.2019 was concealed from the Court. This issue is answered accordingly.
Issue no. 8, 9, 11 and 12:
8. Whether the defendant failed to replace or supply new emergency bulbs / lights to the plaintiff despite several requests and correspondence? OPP
9. Whether the plaintiff is entitled to a decree for recovery of Rs. 10,00,640/-
being the price of the material purchased from the defendant? OPP
11. Whether the plaintiff is entitled to receive interest @ 18% for pendente- lite and future interest? OPP
12. Whether the plaintiff is entitled to cost of present suit? OPP
43.In view of decision of issue no. 2 where it is concluded that apparently the emergency lights malfunctioned due to wrong electrical connections and non-supply of 24*7 electricity, question of replacement of lights do not arise and no question of recovery of Rs. 10 lakh is made out. Accordingly this issue is answered against the plaintiff and in favour of defendant.
Issue No. 10:
10. Whether the plaintiff had to make visits to Goa and incurred financial expenditure in the sum of Rs. 2,50,000/- on account of travel expenses and holding of related payments? OPP
44.Qua issue no. 10 Ld. Counsel for plaintiff submits that his employees travelled to Goa and incurred huge expenditure. Ld. Counsel for plaintiff concedes that they have not filed any proof of this Rs.2.50 lakhs on record. In the absence of any evidence no question of payment of money @Rs.2.50 lakhs under this head is made out.
CS Comm No.3451/2021 page 20 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited Issue No. 14, 15, 16:
14. Whether on account of failure and in absence of 'Affidavit of Admission / Denial of Documents' by plaintiff in respect of documents submitted by the defendant instant suit is maintainable per se?OPD
15. Whether the plaintiff installed, operated and use the 'sold goods' (20W LED Wall Mounted / Suspended Non Maintained 3 Hrs in-built Battery backup Emergency Light Fitting) as per the instructions given by technicians of defendant company (of uninterrupted power supply) and as per the specifications of the actual catalogue made available by the defendants? OPD
16. Whether the electricity circuit used by the plaintiff, for the supply of the electricity to self maintained emergency lights (the goods) with plug and switch in between, causing interruption of current, caused chemical imbalance in the batteries of the goods and resultantly damaged the batteries? OPD
45.In view of the decision of above issues, no relief under these issues is made out.
13. Relief
46.In view of the above discussion, this Court has no hesitation in concluding that plaintiff company has miserably failed to discharge the onus of proving this case and suit of the plaintiff is accordingly dismissed with cost. Defendant's Lawyer's fees is assessed as Rs.50,000/-.
47.Decree Sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by SURINDER SURINDER S RATHI S RATHI Date:
2025.04.05 16:17:38 +0530 (SURINDER S. RATHI) District Judge, Commercial Court -11 Central District, THC Delhi/03.04.2025 CS Comm No.3451/2021 page 21 Advance EPC Contracts Pvt. Ltd. Vs. Prolite Autoglo Limited