Delhi District Court
M/S Capricot Technologies Pvt. Ltd vs Durha Infracon Pvt. Ltd on 18 December, 2019
IN THE COURT OF SUSHANT CHANGOTRA
SENIOR CIVIL JUDGE (SOUTH DISTRICT)
SAKET COURTS, NEW DELHI
Case No. 85088/16
M/s Capricot Technologies Pvt. Ltd.
Through its AR Sharad Kumar Mishra
Office at: S17, Local Shopping Complex,
Green Park Extension, New Delhi110016
...........Plaintiff
Versus
Durha Infracon Pvt. Ltd.
Through its Directors,
Office at: Satveer Complex,
Building No. 337, 2nd Floor,
Village Sultanpur, Near Sultanpur
Metro Station (Pillar no. 28),
New Delhi110030
..........Defendant
SUIT FOR RECOVERY OF RS. 2,37,710/ ALONGWITH
PENDENTLITE AND FUTURE INTEREST @ 24 % PER ANNUM
Date of Institution of the case : 19.10.2016
Date of pronouncement of judgment : 18.12.2019
JUDGMENT
1. The brief facts of the case of plaintiff as stated in the plaint are that plaintiff company is having business of selling/ renewal of software and giving training and consultancy. The defendant placed the purchase orders i.e. order Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 1 of 9 dated 16.12.2015 for the total sum of Rs. 4,01,062/ and order dated 12.01.2016 for sum of Rs. 1,88,403 to the plaintiff. The plaintiff company fulfilled the aforesaid orders up to the satisfaction of the defendant and raised invoices i.e. invoice no. DLSL1516/1500666 dated 11.03.2016 for amount of Rs. 3,78,958, invoice no. DLSR1516/1601187 dated 11.03.2016 for amount of Rs. 22,101/ and invoice no. DLSL1516/ 1500545 dated 19.01.2016 for amount of Rs. 1,84,265/.
2. As per statement of account maintained by plaintiff, sum of Rs. 1,99,754/ was due towards defendant. Plaintiff approached defendant on several occasions through various emails and telephonic conversations and demanded the outstanding amount, but defendant did not pay the same. Plaintiff sent legal/ demand notice dated 22.08.2016 to the defendant which was duly served upon the defendant, but still defendant did not pay the outstanding dues. Hence, plaintiff has filed the present suit for recovery of Rs. 2,37,710/ with interest @ 24 % per annum.
3. Defendant filed written statement and took preliminary objections that the present suit is liable to be dismissed as it does not disclose any cause of action. The plaintiff has not placed on record any proof that he made any attempt to repair/ replace the defective software's. Defendant is not liable to pay for goods which were defective. Due to defective delivery of goods, the defendant has suffered irreparable losses which cannot be compensated in terms Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 2 of 9 of money. The suit is based on false and frivolous grounds. The plaintiff has not come to the court with clean hands and has suppressed material facts.
4. On merits, defendant pleaded that plaintiff misrepresented about the softwares and lured the defendant to place orders with him. The cost of the said softwares was much higher than the prevailing market rates. Defendant placed orders with plaintiff on his assurances that the softwares shall deliver the desired results and be useful to the defendant. The softwares installed by the plaintiff did not work at all and failed to accomplish the purpose for which they were installed. Defendant denied the remaining averments of plaint and prayed that suit may be dismissed with costs.
5. The plaintiff filed replication to the written statement of defendant and denied the averments of written statement and reiterated the averments of its plaint.
6. From the pleadings, following issues were framed by the ld. Predecessor of this court:
(i) Whether the plaintiff is entitled to recovery of the amount as prayed for? OPP
(ii) Whether the plaintiff is entitled to interest as prayed for upon the principal amount? OPP
(iii) Whether the plaint of plaintiff is liable to be rejected under Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 3 of 9 Order 7 Rule 11 of CPC? OPD
(iv) Whether the suit of plaintiff is not maintainable on the ground that plaintiff has no cause of action or plaintiff has not come to court with clean hands and has suppressed material facts? OPD
(v) Relief.
7. In order to prove its case, plaintiff examined Sh. Sharad Kumar Mishra as PW1. He tendered his affidavit Ex. PW1/A and relied upon documents Ex.PW1/1 to Ex. PW1/15. He was crossexamined at length by the ld. Counsel for defendant. AR of plaintiff closed PE on 10.01.2019.
8. DW1 Sh. C. S. Saxena tendered his evidence Ex. DW1/A and relied upon document Mark A. DE was closed on 16.12.2019.
9. I have heard the arguments of ld. Counsels for both the parties. I have gone through the evidence on record very carefully. The issuewise findings are given as below: ISSUES NO. 1 & 4.
10. The onus to prove issue no. 1 was on plaintiff, whereas, onus to prove issue no. 4 was on defendant. Both these issues are interconnected. The discussion of one issue will necessarily involve discussion of the other issue, therefore, I will take up the discussion of both these issues together.
Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 4 of 9
11. The case of plaintiff is that the plaintiff had supplied the software to the defendant company and as per its statement of account, sum of Rs. 1,99,754/ is due from the defendant. In the written statement, defendant has admitted that plaintiff had supplied aforementioned software, but has taken a plea that the said software was defective and therefore defendant is not liable to pay for the goods which were defective.
12. In the present case, the factum of supply of softwares by plaintiff to defendant company is admitted. In addition, the plaintiff has also proved purchase orders Ex. PW1/2 and Ex. PW1/3 as well as invoices Ex. PW1/4 to Ex. PW1/6.
13. Section 41 and Section 42 of the Sale of Goods Act, 1930 deals with supply of goods the quality of which cannot be ascertained upon delivery. They are as under: "Section 41. Buyer's right of examining the goods. (1)Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.
Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 5 of 9 Section 42: Acceptance.The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
14. The defendant could avoid the making of payment upon proof of two facts i.e. the goods/ software suffered from latent defect and the defendant had informed the plaintiff about the same promptly. Therefore, it was imperative for the defendant to establish that software so supplied was actually defective.
15. It is a matter of common knowledge that for the proper working of the software there can be issues like compatibility and technical knowhow about its installations as well as usage. The entire written statement is silent as to how the software supplied by plaintiff was defective. There is no pleading that the defendant had installed the software according to the guidelines given relating to its compatibility or the user of the system had taken all the necessary steps for its installations as well as for its proper usage.
16. The defendant did not examine any concerned person or employee who had actually installed the software or was trying to use it. As per DW1, the IT team of defendant was in place. The defendant has only examined Sh. C. S. Saxena who was neither the employee of defendant company nor was its Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 6 of 9 director. In his crossexamination, DW1 stated that he was mentor of the defendant company, but he did not have any record to show that he was mentor. He also admitted that he had never done any transaction with plaintiff company and was deposing only on the basis of papers supplied by defendant company. His testimony clearly shows that he had neither installed the software not had tried to use it. Therefore, the defendant has neither pleaded nor has produced evidence on record disclosing defects in the software so supplied by the plaintiff.
17. The plaintiff has also proved email communications between the plaintiff and defendant company Ex. PW1/8 (colly). The exchange of said communications is admitted by the defendant company as well. As per email dated 06.08.2016, the defendant company had admitted that the software so supplied was working properly at Durha HO and it was further stated that for proper running of software at Tundla site office there are requirements of IT parts which is in process. Hence, as per the admission of defendant company, the software so supplied was for two places i.e. Durha HO and Tundla site office out of which it was working properly at Durha HO and for Tundla site office there was requirement of IT parts. DW1 in his crossexamination admitted that hardware parts were not to be supplied by the plaintiff company and technical issues of hardware were to be cured by defendant company only.
18. Thus, in view of the aforementioned discussion, it has to be Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 7 of 9 concluded that defendant has failed to establish that the software/ goods so supplied by plaintiff was defective. Therefore, defendant is liable to pay the amount due towards the plaintiff.
19. It is further necessary to note that plaintiff has sought recovery of Rs. 2,37,710/, whereas, as per statement of account filed by plaintiff Ex. PW1/7 only sum of Rs. 1,99,754/ was due from the defendant company. The plaintiff has not proved any agreement to show that defendant was also liable to pay the interest on the delayed payment. Therefore, plaintiff is only entitled to recover sum of Rs. 1,99,754/ from the defendant company.
Accordingly, both these issues are decided in favour of plaintiff and against the defendant.
ISSUE NO. 2.
20. Onus to prove this issue was on plaintiff. The plaintiff has prayed for pendente lite and future interest @ 24 % per annum. No agreement qua payment of interest in case of default has been proved on record. Therefore, the plaintiff is only entitled to nominal interest @ 6 % per annum from the date of filing of the suit till its recovery.
Accordingly, this issue is partly decided in favour of plaintiff.
ISSUE NO. 321. Onus to prove this issue was on defendant. The basic ground in this Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 8 of 9 issue is the defence that there is no cause of action. However, in discussion of issues no. 1 & 4, it has already been held that defendant is liable to pay sum of Rs. 1,99,754/ to the plaintiff.
Accordingly, this issue is also decided against the defendant.
RELIEF
22. In view of the findings given on aforementioned issues, suit of the plaintiff is partly decreed with costs for recovery of sum of Rs. 1,99,754/ from defendant alongwith interest @ 6% per annum from the date of filing of the suit till its realization.
23. Decree sheet be prepared. File be consigned to record room after due Digitally signed by compliance. SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date: 2019.12.19 16:27:41 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) 18th December, 2019 SCJ (SOUTH)/ SAKET COURTS NEW DELHI Case no. 85088/16 M/s Capricot Technologies Pvt. Ltd. Vs. M/s Durha Infracon Pvt. Ltd. Page no. 9 of 9