Delhi District Court
M/S. Heyday Communications vs M/S. Voir India Electronics Pvt. Ltd on 17 December, 2021
IN THE COURT OF MS. POOJA TALWAR, ADDITIONAL
DISTRICT JUDGE-01 SOUTH DISTRICT COURTS,
SAKET, NEW DELHI
CS No.7263/16
ID No.DLST01-000809-2016
M/s. Heyday Communications
through its Proprietor Sh. Madhur Jain
having its office at
414, Aggarwal Cyber Plaza-I,
Netaji Subhash Place, Pitampura
Delhi-110034
..... Plaintiff
VERSUS
1. M/s. Voir India Electronics Pvt. Ltd.
Through its Managing Director/
Principal Officer
2. Ms. Suman Goyal
Managing Director
M/s. Voir India Electronics Pvt. Ltd.
3. Mr. Sunil Goyal
Director
M/s. Voir India Electronics Pvt. Ltd.
4. Mr. Mohit Goyal
Director
M/s. Voir India Electronics Pvt. Ltd.
All at:
V-9, Green Park Extn.
New Delhi-110016
..... Defendants
CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 1/12
Date of institution : 12.01.2016
Final arguments heard on : 02.12.2021
Date of pronouncement of judgment : 17.12.2021
Suit for recovery of Rs.10,94,859/-.
J U D G M E N T:
1. The present suit has been filed for recovery of Rs.10,94,849/- alongwith interest against the defendants.
Brief Facts:
2. It is the case of the plaintiff that defendant no.2 being Managing Director and defendant no.3 and 4 being Directors of defendant no.1 approached the plaintiff in the month of March 2014 for utilizing services of plaintiff on creative Retainership basis and plaintiff was appointed as Creative Retainer by defendant no.1 @Rs.50,000/- per month w.e.f. 01.04.2014 as agreed. Thereafter defendant no.1 directed the plaintiff to get half page display advertisement published/released on its behalf in daily newspaper Amar Ujala on 04.05.2014 and 25.05.2014. After negotiations plaintiff agreed to get the advertisement published on certain terms and conditions and it was agreed that defendant no.1 would make payment within 15 days from the date of bill and in case of delay interest @24% per annum would be charged from 16th day of each pending bill till the date of entire payment.
CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 2/123. It is further submitted that as per the trade practice, the interest is debited by the plaintiff in the account of his customers/clients only when the same is actually received. Defendant no.2 to 4 stood personal guarantee for the payments which would be due from defendant no.1.
4. It is further submitted that plaintiff provided his services to defendant no.1 as Creative Retainer for 3 months only, has designed different types of promotional material like Brochure, Visiting Cards, Letter-heads, Envelopes, Web page etc. and has also published/released half page advertisement on behalf of defendant no.1 on the back page of Uttar Pradesh & Uttrakhand Editions of Amar Ujala on 04.05.2014 and 25.05.2014 after approval of Rs.12,00,000/- and shoot purchase worth Rs.9,000/- from Images Bazar and bills and statement have been submitted to defendant no.1.
5. It is further submitted that on instructions of defendant no.3, bill was split into two parts each and accordingly two bills dated 04.05.2014 for Rs.2,69,562/- and dated 01.11.2014 for Rs.3,42,230/- were raised. The plaintiff raised bills in favour of defendant no.1 amounting to Rs.14,02,236/- during the financial year 2014-15 out of which defendant made payments of Rs.6,50,000/- during the same period, thereby leaving outstanding balance of Rs.7,52,236/-. It is further submitted that now a sum of Rs.10,94,859/- is outstanding being total of CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 3/12Rs.7,52,236/- and Rs.3,42,623/- being interest.
6. After repeated requests and remainders, to discharge its liability, defendant no.1 issued two post dated cheques amounting to Rs.4 lakhs in favour of plaintiff duly signed by defendant no.3 and 4. But the said cheques were got dishonoured with remarks Stop Payment.
7. Thereafter plaintiff got issued legal notice dated 03.11.2015 upon the defendants and complaint under Section 138 of NI Act was also initiated against the defendants. However defendants failed to pay the outstanding amounting. Hence the present suit.
8. Written statement was filed on behalf of defendants stating therein that defendants never approached the plaintiff and it was the plaintiff who wanted to do business with the defendants. Defendants admitted that plaintiff sent a proposal of retainership at monthly charge of Rs.80,000/- per month but the same was not agreed to be Rs.50,000/- per month.
9. It is further contended that the defendant company utilized the services of plaintiff on limited occasions only. It is also admitted that the plaintiff released advertisements for the defendant company on 04.05.2014 and 25.05.2014.It is claimed by the defendant that it was agreed between the parties that out of CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 4/12the total incentive of 15% received by the plaintiff from the publisher 12% discount was to be paid to the defendant.
10. It is further contended that the plaintiff never raised proper invoices. The defendant no.1 made payment of Rs.6,50,000/- to the plaintiff. It is further submitted that total amount of Rs.10,88,361/- was due and defendant has already made payment of Rs.6,50,000/- and after encashing cheques of Rs.4 lakhs amount of Rs.38,361/- is outstanding. All the allegations leveled by the plaintiff against defendants are denied.
11. Plaintiff filed replication to the written statement of defendants controverting the stand taken by it in its written statement and reiterated the facts of its plaint.
12. At the time of admission/denial of documents, the defendant admitted the following documents:
(i) Two cheques are admitted and exhibited as Ex.P-1 & Ex.P-
2.
(ii) Return memos are also admitted and exhibited as Ex.P-3 & Ex.P4.
(iii) Legal notice dated 03.11.2015 is admitted and exhibited as Ex.P-5.
(iv) Bill no.48, 55 and 69 are admitted and exhibited as Ex.P-6, Ex.P-7 and Ex.P-8.
(v) Two invoices and two credit notes issued by Amar Ujala are CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 5/12also admitted and exhibited as Ex.P-9, Ex.P-11, Ex.P-10 and Ex.P-12 respectively.
(vi) All the emails are admitted and exhibited as Ex.P-13 (colly).
13. From the pleadings of the parties, following issues were framed vide order dated 02.11.2018:
1. Whether the plaintiff is entitled to decree for recovery of Rs.10,94,859/- as payed? OPP
2. Relief.
14. Vide order dated 18.02.2019 following additional issue regarding interest was also framed:
3. Whether the plaintiff is entitled to any interest, if yes, at what rate and for what period? OPP
15. In Plaintiff Evidence, plaintiff examined its Proprietor Sh. Madhur Jain as PW-1 who tendered his affidavit in evidence as Ex.PW1/A and relied upon following documents:
1.Certified copy of bill no.28 is Ex.PW1/1.
2.Certified copy of bill no.360 is Ex.PW1/2.
3.Certified copy of bill no.370 is Ex.PW1/3.
4. Certificate under Section 65B of Indian Evidence Act is Ex.PW1/4.
5. Ledger maintained by plaintiff of defendant no.1 is Ex.PW1/5.
CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 6/1216. Ms. Sakshi Sharma is examined as PW-2 who tendered her evidence as Ex.PW2/1.
17. In Defendants' Evidence, defendant examined Mohit Goyal/defendant no.4 as DW-1, who tendered his affidavit in evidence as Ex.DW1/A. Ms. Suman Goyal/defendant no.2 examined as DW2 who tendered her affidavit in evidence as Ex.DW2/A and Sh. Sunil Goyal/defendant no.3 examined as DW3 who tendered his affidavit in evidence as Ex.DW3/A.
18. I have heard the arguments advanced by all concerned and perused the records carefully.
My Issue-wise findings are as follows:
Issue no.1: Whether the plaintiff is entitled to decree for recovery of Rs.10,94,859/- as payed? OPP Issue no.3: Whether the plaintiff is entitled to any interest, if yes, at what rate and for what period? OPP
19. Both these issues are taken up together as interconnected. The plaintiff in order to prove its case has relied upon documents Ex.PW1/1 to Ex.PW1/5 as well as Ex.P-1 to Ex.P-13. The transaction between the parties is admitted. It is admitted by the defendants that the plaintiff got published their advertisement in the newspaper on the agreed dates. It is also not disputed that the media estimate for the release in advertisement CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 7/12in Amar Ujala was Rs.12 lakhs plus service taxes as applicable. The mail seeking approval was sent by the plaintiff to the defendant on 03.05.2014 and the approval mail was received from the defendant on the same day i.e. 03.05.2014. The email communication between the parties is not disputed. The plaintiff raised invoices upon the defendant from time to time which are not disputed by the defendant except for the invoice Ex.PW1/1, Ex.PW1/2 and Ex.PW1/3.
20. It is claimed by the plaintiff that the parties had agreed for payment of retainership for the month of April, May and June @ Rs.50,000/- per month. The plaintiff has placed reliance on email dated 07.04.2014 by virtue of which it was proposed that creative retainership fee @Rs.80,000/- plus taxes would be charged. The said email is admitted by the defendant. However it is stated by PW-1 in his cross-examination that though Rs.80,000/- as retainership fee was proposed however it was orally agreed that Rs.50,000/- shall be paid. Per contra, it is claimed by the defendant that no such fee was payable. Both the parties have not produced any documentary evidence except the email dated 07.04.2014. The onus was on plaintiff to prove that it was agreed that a creative retainership fee of Rs.50,000/- per month was agreed.
21. As per document Ex.PW1/1 the plaintiff has charged the aforesaid retainership fee for three months i.e. April, May and CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 8/12June in the sum of Rs.1,50,000/-. Email dated 07.04.2014 is silent with respect to the number of months for which the said fee was payable by the defendant. As per the admitted case the advertisements were to be published on 04.05.2014 and 25.05.2014 meaning thereby the work of plaintiff would have ended with the publication of the advertisement of the defendant in the newspaper on 25.05.2014. The plaintiff has not explained what work was done by it for the month of June for the defendant for which the retainership fee has been charged. There is no communication between the parties post May 2014. It has not been pleaded by the plaintiff that any work was done by it for defendant in the month of June. Hence the retainership fee for the month of June could not have been charged.
22. In so far as the retainership fee for the month of April and May is concerned, the plaintiff had to do certain works on behalf of defendants which is not disputed. The publication charges @ Rs. 6 lakhs per advertisement were to be paid to the publisher. Once plaintiff was doing some work for defendants he would not do it for free. He would have definitely charged his professional fee which in present case is termed as retainership fee. Though defendants have denied that any such fee was payable but keeping in mind the fact that work was done by plaintiff, it is entitled to some remuneration for it. Though e-mail dated 07.04.2014 has not been replied by defendants but the fact is work of publication was done by the plaintiff on behalf of CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 9/12defendants. There was definitely some communication by defendants to plaintiff for doing that work, hence the claim of plaintiff cannot be discarded outrightly owing to lack of written communication by defendants. Plaintiff could have asked for Rs. 80,000/- per month as well, but in all fairness he claimed Rs. 50,000/- per month as per their verbal communication. Thus, the plaintiff is entitled to recover retainership fee for the months of April and May, 2014 @ 50,000/- per month.
23. It is claimed by the defendant that it was agreed between the parties that out of the total incentive of 15% received by the plaintiff from the publisher 12% discount was to be paid to the defendant. In order to prove its claim the defendant has relied upon invoice Ex.P-6 and Ex.P-8 to show that 12% discount was given to the defendant by the plaintiff in the said two bills however, the said incentive was not paid in bills Ex.PW1/2 and Ex.Pw1/3 owing to which the payment of the said two bills was not made.
24. It is denied by the plaintiff that it was agreed between the parties for grant of 12% discount out of the 15% received by it from the publisher. It is stated by the plaintiff that on request of the defendant the same was given in the first two bills due to some internal accounting purpose of the defendant. The said explanation appears to be improbable for the reason that in case the defendant was not entitled to the discount of 12% why would CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 10/12it want the same to appear in one bill and pay the entire amount in the other bills. The defendants have made the payment without any resistance to the previous two bills Ex.P-6 and Ex.P- 8 then it would not have any objection in case other two bills were correctly raised. The defendants have relied upon document Ex.P-6 and Ex.P-8 which clearly prove that 12% incentive was given to them by the plaintiff. Hence the bills Ex.PW1/2 and Ex.PW1/3 are incorrect. The plaintiff should have deducted an amount of 12% incentive from the said bills as well.
25. As has been stated above, the total amount due and payable by the defendants to the plaintiff is Rs.2,69,562 x 4 = Rs. 10,78,248/- plus Rs.10,113/- of bill Ex.P7 plus Rs.1,00,000/- retainership fee. The total amount payable is Rs. 11,88,361/-. The defendants have already paid Rs. 10, 88,361 to the plaintiff. Now, Rs. 1,00,000/- is to be paid to the plaintiff by the defendants.
26. The plaintiff has also claimed interest of Rs.3,42,623/- on the unpaid amount, however, as has been decided above and in view of Section 74 of the Indian Contract Act, the plaintiff is entitled to rate of interest as prevalent in the commercial transactions and not as stated in the invoice which as per court is 9% per annum, accordingly, the plaintiff is entitled to interest @ 9% per annum at the recoverable amount w.e.f. 01.06.2014 till it is recovered. Both the issues are decided in favour of plaintiff and against the defendants.
CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 11/12Relief:
27. In view of the discussions above, suit of the plaintiff is decreed for a sum of Rs.11,88,361/- against the defendants. The plaintiff has already received Rs. 10,88,361/-. Hence, the defendants shall pay Rs. 1,00,000/- with interest @ 9% per annum w.e.f. 01.06.2014 till it is recovered. Cost of the suit are also awarded in favour of plaintiff. Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court
on 17.12.2021
(Pooja Talwar)
POOJA Additional District Judge-01,
(South) Saket District Courts,
TALWAR New Delhi.
Digitally signed by
POOJA TALWAR
Date: 2021.12.20
16:25:16 +0530
CS no.7263/16 M/s. Heyday Communications Vs. M/s. Voir India Electronics Pvt. Ltd.
Page No. 12/12